109 Pa.

Volume 109 — Pennsylvania State Reports

102 opinions

109 Pa. 1Cummisky v. Cummisky (1885)
In an action of ejectment by A. against Mrs. C. & C., in winch A. claimed title through B., who purchased the property at a sheriff’s sale under proceedings in partition, A. asked the court to charge that in pursuance of said partition B. derived a valid title, and that the validity of the same could not be impeached in this collateral action, except for fraud. Both of these points the court refused. The proceedings in partition, which were in Common Pleas, by A. against Mrs. C., his co-tenant, were as follows : The writ was served on Mrs. C. & C., a narr. filed, an appearance entered, and a plea of non tenant insimul put in. This plea was afterwards withdrawn, and the court entered a judgment quod partitio flat (without, as alleged by the defendants in ejectment, examining the title). On the same day, on motion of A.’s attorney, a writ da partitione faeianda was awarded and issued returnable to the following September Term, but by mistake tlio prothonotary made it returnable to the then present May Term, which left too short a time for the requisite notices. Thereupon a return of this writ was directed, and a new writ issued, without a special order of the court. Under this writ an inquisition in due form was had and returned, and in this inquisition it was set forth that the parties in the said writ named had been severally warned, and that as many as chose were present. The inquisition further set forth that the property could not be divided without prejudice to the whole, and stated the sum of the appraisement; all of which was approved by the court. A rule was then granted on all persons interested to come into court on a day fixed, and accept or refuse the premises at the appraisement, and of this rulo O. and wife had notice. On the day specified no one appeared and an order was made for the sale of the property by the sheriff. In pursuance of this order, after legal notice, the property was put up and sold by the sheriff to B. The purchase money was brought into court, and a deed executed to B., which was acknowledged in open court and duly delivered. The proceedings were not copied in the partition docket. Held, (1) That the statute in regard to the duty of the court to examine fhe title before entering the judgment quod partitio fiat, being merely directory, it would be presumed that the court had done its duty. (2) That while the issuing of the alias writ de partitione faeianda may have been irregular, yet the irregularity was not material, and could not be taken advantage of in the subsequent collateral action of ejectment. (3) That the recital in the inquisition, that the parties in the writ named had been severally warned, was a sufficient return of the service of the notices. (4) That the whole of the record subsequent to the judgment qüod partitio constituted a decree of confirmation of the sale, which, though informal, was final and sufficient.. (5) That it was not B.’s duly to see that the proceedings were copied in the partition docket, and the fact that this had not been done did not affect his title. (6) That the court therefore erred in refusing A.’s points.
109 Pa. 7Michaelis v. Brawley (1885)
Error to the Court of Common Pleas of Crawford, oovnty: Of January Term, 1885, No. 300. Ejectment, by Charles Michaelis and Lucy Michaelis, bis wife, in the right of said wife, against Francis Brawley, for a house and lot in Vernon township. On the trial, before GalbraitD, P. J., of the sixth judicial district, the following facts appeared: The legal title to the premises in dispute was in Lucy Michaelis in February, 1869. On March 3d, 1869, Mrs. Michaelis and her husband executed a mortgage upon said property to one William Painter; the certificate of acknowledgment 011 the same being defective, in that it did not certify to the separate examination of the wife. A scire facias was issued on this mortgage in April, 1872, which was duly served on Airs. Michaelis, who entered no appearance. Judgment was therefore entered for want of an appearance, and a levari facias issued upon which the property was sold to Cyrus Kitchen, through whom the defendant claimed. The defendant having offered the record showing the above proceedings in evidence, the plaintiff contended that the judgment against Airs. Alichaelis on the mortgage was void, because the mortgage showed on its face that the land belonged to a married woman and the absence of her separate acknowledgment made it fatally defective. The court charged the jury, inter alia, as follows: “ Under the law this judgment cannot be attacked collaterally, and the plaintiff is precluded by this recovery on this mortgage, and that being- the case her claim here must fail, and your verdict shall be for the defendant.” Verdict for defendant and judgment thereon; whereupon the plaintiffs took this writ assigning for error that part of the charge of the court above set out. A married woman’s power to convey or charge her real estate is derived solely from the Act of 1770, and the requirements of that Act as to her separate estate and acknowledgment must be pursued, and must so appear upon the face of the magistrate’s certificate: Graham v. Long, 15 Sm., 383; Brown v. Bennett, 25 Id., 420 ; Glidden v. Strupler, 2 Id., 400; Innis v. Templeton, 14 N., 262. The deed of a feme covert is absolutely void if the acknowledgment is not in substantial compliance with the Act of 1770: Jourdan v. Jourdan, 9 S. & R., 268 ; Watson v. Mercer, 6 Id., 48; Fowler v. McClurg, Id., 143; Rumfelt v. Clemens, 10 Wr-., 455. “ Without signature and acknowledgment according to statute it is not, and cannot be a mortgage of her estate:” per Justice Woodward, in Miebener and wife v. Cavender, 2 Wr., 337. Every judgment against a married woman which does not show her liability on its face is void: Swayne v. Lyon, 17 Sm., 436 ; Finley’s Appeal, Id., 453; Hecker v. Haak, 7 N., 238 ; Hugus & Hacke v. Dithridge Glass Co., 15 N., 160. If the judgment against plaintiff is void for reasons appearing of record, it may be attacked collaterally ; it requires no reversal to render it a nullity: Caldwell v. Walters, 6 Harris, 79. Although it is true as an abstract principle that a married woman’s mortgage is not valid without her separate acknowledgment, yet a judgment by default in pursuance of a scire facias issued on such a mortgage is conclusive of the validity of the same: Ross v. Lynch, 2 Pitts. Rep., 472; Warder v. Tainter, 4 Watts, 274; Miner v. Graham, 12 Harris, 494; Yaple v. Titus, 5 Wr., 195; Hartman v. Ogborn, 4 P. F. S„ 120.
109 Pa. 9Appeal of Harper (1885)
Appeal from the Court of Common Pleas of Orawford county: Of January Term, 1885, No. 301. Bill in equity, between Alexander Powers and five others, property owners in the city of Meadville, complainants, and W. S. Harper, Mayor, et al., defendants, praying for a perpetual injunction, to restrain the collection of certain municipal assessments or taxes, levied by the city authorities, for the construction of a sewer in front of the complainants’property. A demurrer to the bill, on the ground that the complainants had a full and adequate remedy at law, was overruled by the court, and the defendants filed an answer, whereupon the cause was referred to J. B. Brawley, Esquire, as examiner and Master, before whom the following facts appeared:— Meadville is a city, subject to the provisions of_§^_37i„4X and 4_8 of _the .Act of. Assembly.entitled “ Au Act .dividing "the cities of this state in three classes,” approved May 23d, 1874, and amended by Act of April 11th, 18T6T “ regülatlíig the collection of municipal claims and sewerage.” In pursuance of the 47th section of the above Act the City Council, on August 3d, 1881, passed an ordinance, No. 222, erecting and defining the limits of sewer district No. 1 in the my~'6F"Meadviile, which was approved the same day. On October’9th7l881, the City Council adopted a supplement to ordinance No. 222, by which the southern limits of sewer district No. 1 were somewhat changed. Immediately after the passage of ordinance No. 222, to wit: August 3d, 1881, the City Council passed a resolution providing for the construction of a sewer, along certain streets named, “ in accordance with city ordinance No. 222, of such dimensions as the committee shall adopt, and that the city engineer be instructed to prepare a plot or plan of the same to report to the Council as required by § 2 of city ordinance No. 222.” In pursuance of the foregoing ordinances and resolution, the street commissioner caused an eighteen inch sewer pipe to“be laid, on Water street, from Linden to Chestnut streetsalso certain branches at the intersection of other streets. This sewer pipe was laid by the city between. September 12th and November 20th, 1881; and was the work ■which gave rise to the present controversy. The city did not at any time prior to the 20th of November cause the estimates, maps, plans and schedule to be made, which is required to be done by the Act of Assembly, entitled “ An Act prescribing the manner in which the councils of cities other than those of the first class may pass ordinances authorizing the grading and paving of avenues, streets or alleys, and the construction of sewers and bridges,” approved May 1st, 1876 (P. L. 91) ; nor were such estimate, maps, plans and schedules attached to any ordinance authorizing the construction of sewers prior to the ordinance of March ..15th, 1882, hereinafter set out. On August 31st, 1881, the City Council appointed assessors to assessMhe estimated cost and expenses of the sewerage upon the lots and lands in the district. The viewers filed a report, which was subsequently excepted to and set aside. On January 18th, 1882, a new board of assessors was 'appointed for the same purpose. This board reported on February 25th, 1882, and subsequently the numerous exceptions filed were overruled and the report confirmed. On March 15th, 1882, ordinance No. 227 was passed and approved by the City Council, which authorized and directed the construction of a complete system of sewerage in the first sewer district. To this ordinance was attached the estimate of the city civil engineer, showing the total cost of this improvement, a map or plan of the property liable to assessment for tbe cost of the same, the schedule prepared by the board of assessors showing the total cash value of the property liable for assessment for sewerage in district No. 1, and the amount each property would be liable'to pay for such improvement. This ordinance, in preliminaries and .form, complied with the Act of Assembly of May 1st, 1876. Under this ordinance, No. 227, the city proceeded to put in a complete"system of sewerage in district No. 1, of which the sewer laid in 1881 on Water street, between Linden and Chestnut streets, formed a part. Against the collection of the assessments levied on the property abutting on this last mentioned part of the sewerage the present bill was filed, the complainants contending that it was constructed before atiy legal ordinance authorizing it was passed. The defendants claimed before the Master — first, that after Hie construction of that part of tbe sewer between Linden and Chestnut streets, and before the balance of the sewer system was constructed, a formal and lawful ordinance, in compliance with the Act of May 1st, 1876, was passed, under which the complainants and all others were lawfully assessed with the cost of their part of the sewer; and second, that if the complainants were injured they had a full and adequate remedy at law, by appeal from the assessments to the Court of Common Pleas, and that equity, therefore, bad no jurisdiction. As to these points the Master reported, inter alia, as follows :— “ The authority of the city of Meadville to construct the sewer in question and assess the cost of it upon the abutters and other property owners of sewer district No. 1, of said city, is found in Act of May 1st, 1876, P. L., p. 94, and in § 47 of the Act of May 23d, 1874, as amended by Act of April 11th, 1876 ; see P. L. 1874, pp. 250, 259 and 260. “ The Act of May 1st, 1876, P. L. 94, expressly provides that ‘any ordinance which shall be passed by the Councils of any city in this Commonwealth authorizing.....the construction of any sewer or bridge before the provisions of this Act are complied with shall be null and void and of no effect.’ ’ The resolution of August 3d, 1881, authorizing the construction by the city authorities of a sewer along Water street, from Chestnut street to Linden street, in no way complied with the Act of May 1st, 1876, and is therefore, in the language of that Act, ‘ null and void and of no effect.’ No other ordinance was passed authorizing and directing the construction until after that portion of the sewer on Water street, between Chestnut and Linden streets, was built." Can the city impose a special tax upon a limited number of citizens to pay for work done simply under the general powers of the city, and not by virtue of a particular or special ordinance, duly authorized by legislative authority? _It is true’that a city has power to construct asewer without' any special an-. tTiority given with that view_:_ Fish v. Harrisburg, 2 Grant, 2917'but a" debt incurred in the construction of a sewer under the generaLpowers of á bity'wbald~be"a" general debt of the citvyand: would have to be paid by general taxation ■: Com: of" Kensington v. Keith, 2 Barr, 218, and not by special tax. ..... The.Master is of the opinion that as that portion of the'sewer of sewer district No. 1, situate on Water street, between Chestnut and Linden streets, was constructed before any lawful ordinance was passed to authorize its construction, and before the assessors assessed the estimated expense of it upon the lots and lands in that district, there was no lawful authority either in the city or the assessors to assess the cost of its construction upon the lots and lands of that district. “ Has a court of equity jurisdiction to grant relief in the premises? The respondents claim not, for the reason: 1st. That the complainants have a full and adequate remedy at law for the wrongs complained of, and 2d. That the complainants have not presented such a case as authorized equitable interference upon any ground. ..... The legal remedies which it is alleged exist for the wrongs complained of are an appeal from the assessment to the Court of Common Pleas of the county, or, if the right of appeal did not exist, then a review of the proceedings of the Council on certiorari, or by suit against the collector for illegal seizure of property. “ Reference is made to the 17th section of the Act of April 9th, 1834, entitled, ‘ An Act to alter the Act incorporating the borough of Meadville ’ as giving the right of appeal to the complainants. The Master is of the opinion that the complainants had no right of appeal from the action of the assessors, or City Council assessing this tax, either under the Act of 1834 or under the Act of 1874. The Act of 1834 gives any citizen of the borough the right to appeal from anything done by the borough council ‘ in pursuance of that Act or of any by-law or ordinance made under the authority of the same.’ Nothing complained of here was done in pursuance of that Act, or any by-law or ordinance made under the authority of tlie same, and no appeal lies by virtue of that Act. No appeal is given under the Act of 1874, and none therefore exists. ..... Certiorari is only available where the illegality of the assessment appears upon the face of the proceedings, and where no extrinsic evidence is necessary to show the invalidity of the proceedings : Ewing v. City of St. Louis, 5 Wall., 418 ; Heywood v. City of Buffalo, 4 Kern an, 534. In tins case the assessments made which are followed by ordinance No. 227, are perfectly regular upon the face of the proceedings, and the irregularity and illegality of that part of the assessments contested can only be shown by tbe same extrinsic evidence necessary to sustain this bill; certiorari, therefore, would not have availed the complainants. That a court of equity will restrain the collection of an unlawful tax by injunction under proper circumstances is established by a long list of authorities, among others : 2 Dillon on Corp.. § 737 ; St. Clair School Board’s Appeal, 74 Pa. St. Rep., 252; Miller v. Gorman, 38 Id., 309; Borough of Petersburg v. V. Noss, 52 Id., 448; Shirk v. Bucher, 53 Id., 94; City of Pittsburgh v. Roup, 1 W. N. C., 254; O’Donnell v. Strong, Id., 339 ; City of Phila. v. Cochran, 4 Id., 222; Matthews v. The City of Scranton, 9 Id., 507; Delano Land Co. et al. v. Conners et al., 13 Id., 335......In this case the complainants have no remedy at law by which the grievance complained of can be corrected. This court by its decree can prevent a multiplicity of suits, and can also do final and complete justice between all the parties. The Master is therefore of the opinion that the court has complete jurisdiction, and that the relief prayed for should be granted, and hereby recommends that such a decree be made.” Exceptions filed to this report were dismissed by the court and a decree entered, in accordance with its recommendation, perpetually enjoining and restraining the defendants from collecting or attempting to collect any of the municipal assessments or taxes for local sewerage from -the owners of lots fronting on Water street, between Chestnut and Linden streets. The defendants took this appeal, assigning for error the overruling of their demurrer to the bill and the entry of the above decree.
109 Pa. 16Hickman v. Shimp (1885)
Error to the Court of Common Pleas of Chester county : Of July Term, 1883, No. 130. Replevin, by Henry E. Shimp against Wellington Hickman et al. to recover an engine and boiler. On the trial, before Futhey, P. J., the following facts appeared: S. G. Willauer was the owner of certain real estate in Chester county on which there was a deposit of kaolin, and in the latter part of the year 1879 he erected buildings and machinery on his property for the purpose of raising the said material. His engine and boiler proved too small, and in February, 1880, in a conversation had by Willauer with the plaintiff, Slump, the latter agreed to furnish another engine and boiler suitable to do the work. As to the terms of this contract there was little or no dispute. Plaintiff testified in regard to it as follows: “ The engine and boiler were at Mount Joy, Lancaster county; I told him (Willauer) that I would put the engine and boiler there and guarantee that it would do the work, that is to pump the water and hoist the kaolin, and, if not, it would be no sale; I don’t exactly know, but I think I told him I would charge him about $700 for the engine and boiler, without any other fixtures. ..... Q. Was there anything said about his accepting the engine, and when he was to do so? A. Yes, sir, it must do the work satisfactorily, and if it did not it was no sale. Q. What was said between you and Willauer ? A. I told him that the engine must give satisfaction or it was no sale. Q. What did he say? A. He told me that it mast pump the water and hoist the kaolin; I told him that if it did not do that it was no sale. Q. How were you to find that out ? A. He was to let mo know; we had the contract that I was to give him the engine on a year’s credit.” Both parties agreed that Willauer was to notify Shimp whether or not the machinery was satisfactory, but no time was mentioned within which the notification was to be given. The engine and boiler were sent by Shimp during the month of February, 1880, and put up under his direction. Shortly afterwards Willauer failed, making an assignment on March 81st. The pump was started before the assignment, but the hoisting apparatus not until afterwards. By Willauer’s assignment the machinery was transferred to his assignees, who sold the same on February 18th, 1881, to Henry S. Hickman, from whom the defendants purchased it. The real estate also, was subsequently purchased by the latter, and the machinery kept in successful operation by them up to the time of bringing this suit, January 13th, 1882. Shimp was never notified whether the machinery was satisfactory or not. The defendants asked the court to charge that under the evidence the verdict must be for them. The court reserved this point, and the jury found for the plaintiff. The court afterwards filed an opinion refusing the point reserved, and entered judgment on the verdict; wherepou the defendants took this writ assigning for error the refusal of their point. for plaintiffs in error. — Under the terms of the contract this was a sale on trial. In such a sale the mere failure to return the goods within the time specified for trial, makes the. sale absolute: Benjamin on Sales, § 595; 1 Whar. on Contracts, § 590. Where no time is specified in advance, a reasonable time will be implied, within which it is tire duty of the vendee to make known his disapproval, or else the sale will become complete: 5 Wait’s Acr tions and Defences, ch. 119, § 16. A reasonable time in the present case, would have been within the year allowed for pa}rment, but no notification was given within that period by Willauer or those claiming under him, and the sale became absolute : Dewey v. Erie, 2 Harris, 211. The contract of sale between Willauer and Shimp was subject to the condition precedent ¡that the machinery would both pump water and hoist kaolin, and the property remained in the vendor until tested : Story on Sales, § 247 ; Benjamin on Sales, § 820, and notes; Becker v. Smith, 9. P. F. S. 472; Enlow v. Klein, 29 P. F. S. 488; Moore v. Laird, 1 Ches. Co. R. 529. The pumping only had been tried before Willauer made an assignment ; the lifting had not been tried and the assignment put it out of his power to complete the contract. Notice, also, was a condition precedent to the completion of the contract, and as no notice was given, the property remained in Shimp : Story on Sales, § 250 ; Benjamin on Sales, § 321; Hill v. Freeman, 3 Cush. 257.
109 Pa. 22Thatcher's Administrators v. Baker (1885)
Error to the Court of Common Pleas of Delaware county: Of July Term, 1884, No. 73. Trespass on the case, by Isaac Thatcher against Enos L. Baker to recover for damages alleged to have been suffered by plaintiff, owing to the backing of water in a stream whicli flowed through plaintiff’s land to the defendant’s dam. The plaintiff having died during the progress of the suit, his administrators were substituted of record as plaintiffs. On the trial, the following facts appeared: The lands of the parties adjoined. The defendant had a mill operated by a stream, ordinarily about six feet in width, which ran through the plaintiff’s land before reaching the defendant’s dam. In 1860 the dam was washed out and rebuilt; and while the water was down the parties met at their property line and drove a stake to mark the height to which the defendant could rightfully raise the water by his dam. It appeared from the evidence that the plaintiff, if not expressly, at least by his actions, consented to the water being raised two inches above the top of this stake, until about 1877. The defendant contended that the stake was driven two inches lower than the proper height of the water, in order to preserve it. In 1877 the dam was again carried away by freshet, and when the water was thus out it was discovered that the stake which had been sot up in 1860, had disappeared. Previous to this washout, there had been a crossing over the stream on the defendant’s land, formed partly by a little island in .the middle of the stream. The defendant claimed that this little island formed a sort of natural dam which to some degree prevented water from backing up on the plaintiff’s land, and that without the knowledge or consent of the defendant, the plaintiff had cut a ditch through this island, thus by his own act removing an obstacle which previously interfered with the backing of the watei\ The defendant again rebuilt the dam after the freshet of 1877 and provided three waste ways or vents for the surplus water, one six feet in width, and the other two each about ten feet. On July 27th, 1881, the plaintiff brought this suit claiming that in rebuilding the dam both in I860 and in 1877 and hv various changes made in the backing the defendant had raised the water several inches higher than he had any right to, causing it to back up in the stream where it ran through plaintiff’s land. The defendant submitted, inter alia, the following points: 5. “ If the jury find that the repairing of the dam in 1877 did not raise the water any higher on the land of the plaintiff than it had been before, but simply caused the water to be backed thereon by reason of washing out or the digging away of the obstruction known as the island, the verdict should be for the defendant.” Affirmed. (Fifth assignment of error.) 8. “ If the jury find that the island spoken of formed a natixral dam or obstruction in tbe bed of tbe stream, and tliat it wa.s either washed out or dug away, and that the defendant’s dam did not raise the water any higher than it was before the removal of the island or obstruction, the verdict should be for the defendant.” Affirmed. (Sixth assignment of error.) In the general charge the court instructed the jury, inter alia, as follows: “ The question therefore will be, was the dam at any time after the washout (in 1877) tampered with, or was anything done by which the water was raised above the level agreed upon in 1860, when the dam was built. (First assignment of error.) ..... In fixing the water level tbe parties did not mean that tbe water should never rise above that line, but that that was to be the ordinary height of the water under usual circumstances; a sudden rain, a freshet may raise it an inch or a foot, but that would be no breach of the agreement. (Second assignment of error.).....If there are sufficient waste-ways to carry off the water in the stream under all ordinary circumstances and at the proper level, that is all that is required. The defendant is not required to keep the whole dam at the water level, if he keeps enough to carry the water off under ordinary circumstances.” (Seventh assignment of error.) Verdict for defendant and judgment thereon; whereupon the plaintiffs took this writ, assigning for error the answers to the defendant’s points, and the parts of the general charge, as above set out. The court erred in that part of the charge contained in the second assignment-The jury should have been told that the defendant was bound to provide for all ordinary freshets, all swellings of the stream by spring and fall rains, by keeping his breast-work down, or by widening the over-fall or both; that only an extraordinary flood will excuse him in backing the water upon his neighbor: McCoy v. Danley, 8 Harris, 85. By affirming defendant's fifth point the court assumed that the only complaint that the plaintiff had was the repairing of the dam in 1877. Grant that the repairing of the dam in 1877 did the plaintiff no damage whatever, it does not follow that the dam was not too high before and after that event. The suit covers twenty years of time and the evidence relates to nearly the whole of it. It is very strange law that the plaintiff cannot recover for an injury in 1876 or in 1878 merely because no damage was done him in 1877. The testimony shows that from the building of the dam about 1860 to 1877, there was no complaint made by the plaintiff of the water being backed up on him. He then complained that the dam had been rebuilt too high. He, himself therefore confined the issue to the period between 1877 and the beginning of the suit. The case of McCoy v. Danley, 8 Harris, 85, cited by the plaintiff in error, is not in point; because there, no agreement had been made fixing the water mark.
109 Pa. 27Christner v. Hochstetler (1885)
28. Ejectment, by Joseph Christner against John A. Hochstetler, to recover the interest claimed by the plaintiff, as tenant by the curtesy in a certain tract of land in Elklick township. On the trial, before Baer, P. J., the following facts appeared: Both parties claimed through Mary Christner, the wife of the plaintiff.
109 Pa. 32Somerset & Cambria Railroad v. Galbraith (1885)
Error to the Court of Common Pleas of Somerset county: Of January Term, 1885, No. 3. This was an action on the case by Mary E. Galbraith, widow of William Galbraith, against the Somerset and Cambria, Railroad Company, to recover damages for the death of plaintiff's husband, caused, as alleged, by the negligence of the defendants. The plaintiff’s declaration averred, by way of inducement, that the defendant company was a corporation under the laws of this Commonwealth, and “the owners and proprietors of the Somerset and Cambria Railroad, and of the locomotives and ears running over and upon the same,.....and that being such owner ..... William Galbraith, husband of the plaintiff below, became and was employed as a conductor of a freight train of cars of the said defendants on said road.” idea, not guilty. The plea was accompanied by a special averment (set out at length in the opinion of the Supreme Court), in which it was alleged that William Galbraith had “ accepted employment under said company,” and was familiar with the condition of the road bed and rolling stock. On the trial, before Baer, P. J., the following facts appeared: — The Somerset and Cambria Railroad Company was a corporation under the laws of Pennsylvania. Its road, which extended from Rockwood, in Somerset county, to Johnstown, in Cambria county, was built and operated by the Baltimore and Ohio Railroad Company. The work of building the road was completed in December, 1880, and in the early part of 1881 it was opened for freight and passenger traffic. In May, 1881, William Galbraith was made conductor of a freight train on said road, passing daily over it between Rockwood and Johnstown. On June 5th, 1881, Galbraith started from Rockwood for Johns-town in charge of a freight train composed of an engine, and from twenty to thirty cars. At Somerset, ten miles from Rockwood, be and the engineer, J. E. Svpher, each received the following written order: “Run to Johnstown and return to Somerset as an irregular freight; flag between the first bridge west of Johnstown and Johnstown against the Cambria Iron Company’s engines.” Among the general rules for the government of employees of the Baltimore and Ohio Railroad were the following:— Rule 99. “ The conductor lias charge of the train upon the road and is responsible for its safety and management in obedience to the rules of the company; he must see that all the brakemen are on the alert and attending to their duties.” Rule 103. “ Conductors must see that their brakemen are placed at proper distances from each other on the top of the cars and remain in such position, while the train is in motion, so as to be of the most immediate and effective service in case of emergency, and in descending grades he will station himself in the middle of the train in order to direct his brakemen to slacken or hasten speed as may, in his judgment, be required. Where grades are heavy the brakes should be slightly applied before starting to descend, and carefully watched while descending, that they may not heat or slide the wheels.” At a point on the road called Hogback tunnel, which was about a mile from a certain stone culvert, Galbraith went to the engine and said to the engineer, “ Look out — run slow, and look out for the Cambria Iron Company’s engines ; they are liable, sometimes, to come outside their limits.” To this the engineer replied, “ Bill, if they are outside their limits they are supposed to look out for us, and if we hit them, it is their look out, and not ours.” It was in evidence that from Hogback tunnel to within about 300 feet of the culvert, it was slightly down grade, and that the engine was using no steam. The last 300 feet were level. When within a few feet of the culvert the engine and four or five cars left the track and crossed the culvert on the ties. The engine ran about 100 feet down a depression on the north side of the culvert, several ears were turned over, others pulled off the track, and the rest left undisturbed. Galbraith was killed, and his body found under the trucks of the tender. v The plaintiff claimed that the “ fill of earth ” at either side of the culvert had sunk away, or settled to the depth of a foot; that the road bed on each side of the culvert had fallen away until it was four or five inches narrower than the ties ; and that the foreman of that section had not been furnished with sufficient material to keep up the track in proper condition at this point, although he had made repeated requests for it. The plaintiff submitted, inter alia, the following points :— “If the jury believe that William Galbraith was employed for a period of thirty or more days in running a freight train as conductor regularly one trip each way daily on the Somerset and Cambria Railroad, and the Somerset and Cambria Railroad Company expressly or tacitly assented to such service, the said Somerset and Cambria Railroad Company may be liable in this action.” “That under the pleadings and the evidence the said William Galbraith is to be regarded as a servant of the Somerset and Cambria Railroad.” Jins. “ These two points we answer as one. From all the evidence in this case, and the pleadings in the ease, we think the case properly brought against the Somerset and Cambria Railroad Company.” I’lie defendants asked the court to charge: — ■ .First. “ That there is no evidence in this case that the plaintiff was in the employ of the defendant company, and therefore the verdict must be for the defendant.” Ams. “ This, you perceive, is directly in conflict with the last two points of the plaintiff. We say that there may be a recovery against this company, provided the plaintiff makes out a case of negligence on its part, and due care on the part of Galbraith. This point we refuse.” Seventh. “ That as the plaintiff has shown that the deceased was running under a special order to 4 Run to Johnstown and return to Somerset as an irregular train; flag between the first bridge west of Johnstown and Johnstown against Cambria Iron Company’s engines,’ etc., then it was his duty to have run the train to the bridge and stopped; and if ho left his position on the train and went upon the engine in violation of the general order requiring him to remain on the top of the train while descending grade to repeat the terms of a written order which had been given to him and the engineer, and which the engineer was equally bound to obey, and the injury was received while on the engine, then lie was guilty of contributory negligence, and the verdict must be for the defendant.” Ans. “ Going upon the engine under such circumstances as .alleged in this point was negligence on the part of Galbraith; whether it was contributory negligence we leave as a question of fact to the jury. If you find, it was contributory negliligence, there can be no recovery.” Eighth. 44 That the fact that the engines of the Cambria Company may have had a different limit on some prior occasion did not warrant the conductor in assuming that they had a different limit on the day of the accident to that fixed in the order; that it was his duty to regard the order as to the limit of such engines, and if he went upon the engine to deliver to the engineer an order to look out for such engines at a point outside of the limits fixed by the order, and the injury occurred when on the engine, then he was guilty of contributory negligence and the verdict must be for the defendant.” Ans. “Such entry upon the engine of Galbraith, as is contemplated by this point, was negligence. Whether it was contributory negligence or not we leave to you as a question of fact. If you find it was, there.can be no recovery; that would depend on the necessity of his going there at that time to communicate something that was not embraced in his written orders.” Verdict for plaintiff for $1,200, and judgment thereon; whereupon the defendants took this writ, assigning for error the refusal of the court to direct a verdict for the defendants, and the answers to points as above set out. On the trial of the case there was no evidence to show that Galbraith was in the employ of the Somerset and Cambria Railroad Company, nor that said company was the owner of the engines, cars, etc., running over said road. There was evidence, however, that the Baltimore and Ohio Railroad Company had built the road, owned it, was running it at the time, and. that Galbraith was in the employ of said company. If the plaintiff intended to charge the defendant company as being the owner of the road, and with negligence in keeping up its road bed, track, etc., then the declaration should have averred that the deceased was in the employ of the Baltimore and Ohio Railroad Company; that said company was operating the road of the defendant company, and that it was the duty of the latter to keep up and maintain its road bed, etc. The plaintiff having failed to establish a material averment of the declaration, namely, the relation of master and servant, it is submitted that the judgment cannot be sustained. The testimony in the case disclosed such facts as establish contributory negligence on the part of Galbraith. The facts, about which there can be no controversy, and which are in the main established by the plaintiff’s witnesses,, make out a most flagrant breach of duty on the part of Galbraith. He deserted his post in violation of an order of the company which he was bound to obey; he left his train uncontrolled and went to a post of danger, and remained there until the accident took place. The order which he took to the engineer was entirely unnecessary, and had he remained on the train where the rule required him to be he would not have been injured. These facts certainly constitute contributory negligence, and the jury should have been so instructed: McCully ». Clark, 4 Wr., 399; Hoag ». Lake Shore & M. S. R. R. Co., 4 Nor., 297; Goshorn ». Smith, 8 W. N. C., 289; 11 Norris, 435; Baker v. Fehr, 1 Out., 70; Dun». Seaboard & R. R. R. Co., 16 Am. & Eng. R. R. Cas., 868 ; Slater ». Jewett, 5 Id., 515; Mulherrin ». Del. L. & W. R. R. Co., 31 P. F. S., 366; East Tenn. V. & G. R. R. Co. ». Toppins, 11 Am. & Eng. R. R. Cas., 223. The declaration avers that the Somerset and Cambria Railroad Company is a corporation in Pennsylvania, &c., “the owners and proprietors of the Somerset and Cambria Railroad and the locomotive engines and cars running over and upon the same ” between Rockwood and Johnstown, and that being such owner, &c., William Galbraith, husband of plaintiff below, “became and was employed as conductor of a freight train of cars of said defendant on said road, &c.” The defendant’s plea makes no denial of these facts and the “special matter” filed with, and made part of the plea, admits that the road (Somerset and Cambria) is “the road of the defendant company ” and that William Galbraith “accepted employment under said company as a conductor on freight trains,” and “ continued in the service of the company” until the accident resulting in his death. And therefore the answer of the court to the points covered by the first three assignments was not error. The vital question is, did the mi contradicted testimony in this case disclose such facts as established contributory negligence on the part of Galbraith, and was it the duty of the court to have so told the jury? Conductor Galbraith had both right and duty on the engine, and in the cases cited by counsel for plaintiffs in error, in illustration of the reciprocal duties of master and servant, and upon which they rely to release the master from liability, these elements were wanting. We therefore submit that there was no error in the charge of the court below by which defendants could have been injured, and that the case was properly and necessarily given to the jury: Crissey v. Hestonville, etc., Railway Co., 25 P. F. S. 86; McKee ». Bidwell, 24 Id., 218; Penna. R. R. Co. ». Barnett, 9 P.E S. 264; Johnson ». Bruner, 11 P. F. S. 62 and 64; City of Harrisburg ». Saylor, 6 Norris 221; Penna. R. R. v. Ogier, 11 Casey 71; Baker ». Fehr, 1 Out. 72.
109 Pa. 41Kirby's Appeal (1885)
Appeal from the Orphans’ Court of Chester county: Of January Term, 1885, No. 38. Appeal of Matthias Kirby and Ann Kirby, Iris wife, in right of said Ann, from the decree of the said court, making distribution of the estate of Jacob Murray, deceased. Before the Auditor appointed to report distribution, the facts of the case appeared to be as follows: Jacob Murray died February 17th, 1883, intestate, leaving seven children, among whom was Ann, who intermarried with Matthias Kirby. A balance of $4,482.38 was shown in the hands of the administrators. On April 1st, 1882, decedent took from Matthias and Aim Kirby a single bill for $1,032.50, and shortly before bis death signed the following entry, written by a justice of the peace, called in for the purpose, in a small account book : — • April 1, 1882, my daughter Ann and her husband Matthias Kirby, Dr. to mo in the sum of $1,032.50, ten hundred and thirty-two dollars and fifty cents, which I advanced to them, for which I hold tlieir notes. Jacob Murray. Testimony was produced showing that Aim Kirby had admitted receiving the money at various times before the bill was given, and that she had gotten as much as her share of her father's estate. The Auditor reported distribution, treating the $1,032.50 as an advancement, and not including Ann Kirby as having received more than her share of the estate. Exceptions were filed by appellants, because the Auditor held said sum an advancement and not a debí, and because he did not award to Ann Kirby her full share. The court, Futuey, P. J., dismissed the exceptions and confirmed the report, whereupon complainants took this appeal, assigning for error the action of the court. "Where there is an obligation to pay there can be no advancement : Hughes’s Appeal, 7 P. E. S., 181; Miller’s Appeal, 4 Wr., 60 ; Roland v. Sclirack, 5 Casey, 125; Porter v. Allen, 3 Barr, 390; Levering v. Rittenhouse, 4 Whar., 137; Morr’s Appeal, 30 P. F. S., 427; Merkel’s Appeal, 8 Norr., 340; Kreider v. Boyer, 10 Watts, 54.
109 Pa. 42Patterson v. Roberts (1885)
Error to the Court of Common Pleas of Delcnvare county: Of January Term, 1885, No. 213. Amicable action of assumpsit, by Robert E. Patterson et ah, executors of Robert Patterson, deceased, against Charles Roberts, on two promissory notes. The plaintiffs filed their statement with their praecipe March 3d, 1884. Subsequently the defendant filed an affidavit of defence; and the plaintiffs took a rule for judgment for want of sufficient affidavit. Upon the argument of this rule the court granted the defendant leave to file a supplemental affidavit. This was duly filed, and the case then submitted on paper books. On June 2d the court discharged the rule for judgment, and on June 23d the plaintiffs’ counsel submitted the following exception to the order discharging' the rule for judgment, to the judge at chambers: “The said plaintiffs except to the ruling and opinion of the court discharging the rule entered by the said plaintiffs in the above case for judgment for want of a sufficient affidavit of defence.” The court refused to note the exception on the ground that it had not been made in time, under the following rule of court: — - “ Sec. 3. In every case where a bill of exceptions is tendered the same shall be prepared in form, and presented to the judge within twenty days after the verdict, or final disposition of tiie case on a motion for a new trial, arrest of judgment, or motion for judgment on points reserved.” At the next session of court, on July 14th, 1884, plaintiffs again presented their exception, and the court again declined to note it on the record, for the same reason. The plaintiffs thereupon took this writ, filing the following specifications of error : — • “ 1. The learned court erred in discharging the rule entered by the said plaintiffs in the above case for judgment for want of a sufficient affidavit of defence.” “ 2. The learned court erred in refusing to note the exceptions tendered by plaintiffs’ counsel, on June 23d, at chambers, and on July 14th in open court.”
109 Pa. 44In re Road in the Borough of Phoenixville (1885)
324. This was in the court below, a petition by the Burgess and Town Council of the Borough of Phoenixville, in Chester county, for the appointment of a Jury of View to lay out and open a new street or road within the said borough and to vacate a portion of an old street, which would thereupon become useless.
109 Pa. 50Fredericks v. Pennsylvania Canal Co. (1885)
167½. This was an action on tho ease by Newton W. Fredericks and Frederick Kreamer, trading as Fredericks & Kreamer, against the Pennsylvania Canal Company, to recover damages suffered by the plaintiffs by reason of the defendant’s failure to keep their canal in operation between Lock Haven and Farrandsville.
109 Pa. 57Brown, Early & Co. v. Susquehanna Boom Co. (1885)
Error to tbe Court of Common Pleas of Lycoming county: Of January Term, 1884, No. 305. This was an action on the case by James V. Brown et ah, doing business under tlie firm name of Brown, Early & Co., against the Susquehanna Boom Company, to recover damages for tbe loss of certain lumber belonging to the plaintiffs, which escaped from the boom of tbe company defendant. The parties, by writing filed, waived a trial by jury, and, under the provisions of the Act of 1874, the case was tried before Cummin, P. J., whose findings of fact and conclusions of law were as follows :— The plaintiffs, Brown, Early & Co., were the owners of an extensive saw mill property in the city of Williamsport, Pennsylvania, on the west branch of the Susquehanna river. In The years 1867 and 1868 they procured large quantities of saw logs on the upper waters of the river to stock their mill. These logs, alter they were measured (scaled) on the bank and marked (stamped) with the registered marks of the plaintiffs, were by them rolled into the small streams on which they were banked and were thence driven into the Susquehanna boom. After the logs came into the boom a large quantity of them escaped therefrom in the years 1867 and 1868, went down the river and were wholly lost to the plaintiffs. To recover damages for this injuiy this action is brought against the Susquehanna Boom Company, defendants. The Susquehanna Boom Company is a corporation created and existing by virtue of.an Act of Assembly, entitled, “An Act to incorporate the Susquehanna Boom Company,” approved March 26th, 1846, and its supplements. The powers of the corporation are set forth in the second section of the original charter, as follows: “ The said corporation are authorized and empowered to erect and maintain on the west branch of the Susquehanna river, between the borough of Williams-port and the mouth of the Quineshehocque creek, such boom or booms with piers as may be necessary for the purpose of stopping and securing logs, masts, spars and other lumber floating upon said river, and to erect such piers, side branch or sheer booms as may be necessary for that purpose : Provided, That said booms be so constructed as to admit the safe passage of rafts and boats, and not impede the navigation of said river and the branches thereof: And provided also, That all persons shall have the same privilege of landing rafts of logs, masts, spars, boards or other lumber, and fastening the same, as they have heretofore enjoyed; and the said corporation shall construct, and at all times keep and maintain their booms and piers sufficiently strong to secure all the lumber contained therein; but no person shall be allowed at any time to encumber said boom with rafts either of logs or other lumber.” The boom of the defendant was constructed in accordance with the charter and has been successfully operated thereunder for many years. It consists of a large number of timber crib piers filled and loaded with stone, connected together by timbers or platforms of timber, between the piers, fastened at each end by strong cable chains to the piers. These piers are comparatively solid, very heavy, and rest securely on the bottom of the river, the platforms float on top of the water between the piers, and are held in their places by the chain coupling at each end attached to the piers. These platforms rise and fall with the floods, thus allowing almost a free passage of the water and affording greater certainty and security for catching and holding the saw logs that come in on the surface of the water. The piers are about two hundred feet apart and the platforms consist of heavy timbers bolted together so as to make a width of about six feet. The lower end of the boom is fastened to the south shore of the river a short distance above the old borough of Williamsport, and extends thence three miles or more up the river, so slightly diagonally across, that in the whole distance, it does not at the head occupy more than about two thirds of the width of the river. Above the boom proper is what is called a sheer boom, which is about fourteen hundred feet long; its purpose is not to catch and hold logs, but to sheer them into the boom proper. This sheer boom extends from the head of the boom proper upwards and towards the north shore of the river ; it is fixed at a greater angle to the current of the stream than the boom proper, and was held in place by cable chains fastened to piers that were below the water, called blind piers. Next above the sheer boom is the íly boom; this is about two hundred and fifty feet long; consists of a platform of timber and extends from the upper end of the sheer boom to the north shore of the river. When the fl}r boom is shut the entire navigation of the river is closed. The fly boom is arranged to be opened and shut at pleasure, and its purpose is not to hold logs but to sheer stray logs over to the sheer boom that they may thence pass into the boom proper. The usual spring floods at this boom, which are called good packing floods, are from fifteen to eighteen feet above low water mark. When the logs come into the boom on a good packing flood, the action of the water is such that the logs are forced under, over and between each other in such a mass that the whole body becomes packed and fastened solidly to the bottom of the river. In many places there will be no pressure whatever on the boom platforms, and in such places, if they were taken away, the logs would not escape. When the logs come in on anything near the usual and ordinary spring floods, the boom has always been of sufficient size and strength to hold all the logs and more than ever came in. If the logs come into the boom on very high water, as the flood of 1865, which was twenty-eight feet above low water, no boom structure will hold them. There are two well defined accidents which may happen to this boom, as follows :— First. If the logs come into the boom on such low water that they will not pack but remain on the surface of the water, the boom will not hold one half as many logs, and will soon fill up to its head. If, then, there should be a slight rise in the river, or if for any other cause this vast body of logs should, surge down, as they will do, some logs may be forced on top of the boom platforms and cause them to sink under the water, thus making an outlet whereby the great pressure is relieved. The boom platforms being thus sunken, the logs are forced out of the boom at this point, soon a channel is thus made and a large quantity of logs will surely escape. This is called a “ spew ” of logs. It is impossible to prevent this accident. No man can tell when or where it will occur, and the strength or weakness of the boom structure has nothing to do with its occurrence. No part of the boom structure is broken by this accident. This is the kind of accident which occurred when the plaintiffs’ logs were lost in 1867, for which they bring their action. Second. If the logs come into the boom on such low water that they will not pack but remain on the surface of the water, the boom will not hold one half as many logs and will soon fill up to its head. If, then, no rise in the water or other thing occurs to cause the logs to surge down in the boom, it is certain and inevitable that all logs coming down after the boom is full must go by the boom and be lost. This is called an “overflow” of logs. This was the situation immediately before the accident happened when the plaintiffs’ logs were lost in 1868. To prevent an “overflow” of logs the defendant closed the fly boom, strengthened the sheer boom by adding timbers to the platforms until they were about twenty-one feet in width, drove heavy piles into the bed of the river below but against these platforms, fastened the sheer boom to the south shore by a strong wire cable, bought up several timber rafts and lodged them against the piers of the railroad bridge, thus making a timber jam a few hundred feet above the sheer boom to relieve the pressure on it. After all this was done the logs continued to come, the pressure continued to increase, soon it became too great; the sheer boom broke and a large quantity of logs escaped, including the logs of the plaintiffs which were lost in 1868, for which their suit is brought. No part of the boom proper was broken in this accident, and no more logs were lost than would probably have been lost if the “ overflow ” had not been arrested. The first question raised in this case is one going to the jurisdiction of the court. By the third section of defendant’s charter it is thus provided :— “ If any person or persons shall suffer damage by the exercise of powers herein granted to said corporation, and the amount thereof cannot be agreed upon by the parties, noisome suitable person or persons agreed upon to estimate the same, the Court of Common Pleas having jurisdiction in the county where the boom or booms are situated shall, upon application of the party aggrieved, cause said damages to be ascertained by three disinterested freeholders of the same county, to be appointed by said court, and who shall make report to the said court on or before the first day of the term next after the award shall have been made, and which being confirmed by the court, shall have the effect of a judgment from the time of such confirmation, &c., &c.” It is urged that if the plaintiffs have any claim for damages against the defendant, they must proceed uuder this clause of the charter, and hence cannot maintain an action at law. In support of this view, the Act of Assembly of 21st March, 1806, § 13 ; 4 Sm. L., 332 ; Purd. Dig., p. 58, pi. 5, is cited as follows : — ■ “ In all cases where a remedy is provided or duty enjoined, or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of said Acts shall he strictly pursued, and no penalty shall he inflicted or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such Act or Acts into effect.” If the plaintiffs' claim in this case falls within the class of damages for which a remedy is provided in the charter of the company, then this action at the common law cannot be maintained : Koch v. Williamsport Water Co., 15 P. F. S., 288. That the case at bar is within the class of cases provided for in the charter, the case of Bald Eagle Boom Co. ¶. Sanderson, 32 P. F. S., 402, is referred to, wherein the exact words of this part of the charter were before the court. In that case, however, the boom company did what it had authority to do. It allowed its boom to be filled with logs ; this caused the water to flow back upon Sanderson’s land, which was the injury complained of. In other words, Sanderson in that case suffered damage by tlie exercise of the powers granted to the boom company. The case at bar is widely different. If Brown, Early & Co. have any claim in this case against the Susquehanna Boom Company, it is not because the boom company exercised the powers granted to it, but because it did not do so, or neglected to do so. The case at bar comes within the principle laid down in Schuylkill Nav. Co. v. McDonough, 9 Casey, 73, as follows : “ The remedies against a company provided by their Act of incorporation.....do not exclude the common law remedies for injuries arising from an abuse of their privileges or for neglect of their duties.” Another question arose at the hearing of this case, upon which much argument was had, viz.: Whether or not the defendants are common carriers? Common carriers are defined to be such as carry goods of all persons indifferently from place to place for hire or reward : Gisbourn v. Hurst, 1 Salk., 249 ; Haley. Navigation Co., 15 Conn., 539.; Fuller v. Bradley, 1 Casey, 121. The Susquehanna Boom Company does take charge of the logs of all parties indifferently for hire or reward, but does it carry from place to place ? The structure known as the boom is several miles long; the river flows through it. The logs come into it at the upper end, and are delivered to the owners at or near the lower end, where the logs of the marks of each owner are rafted together. As the logs are taken out at the lower end of the boom those above float down or are floated down. If any logs lodge in the upper part of the boom, the boom company causes them to be dislodged and brought down to the place of delivery. If any carrying is done bv the boom company it is done within their charter limits. This kind of carrying, if it may be so called, closely resembles that of a warehouseman carrying the goods entrusted to his care from one end of the warehouse where he receives them to the other end where he delivers them. The defendants’ charter makes no mention of this carrying or transporting of the logs that come into the boom, and no compensation is fixed for such labor’. In the case at bar the plaintiffs’ logs were not lost whilst they were being carried or transported by the defendants. In Weld v. The proprietors of the side booms, Androscoggin river, 6 Me., 93, the only adjudicated case cited on this question, it was held that the boom company was only to be holden for losses o'ccasioned by the want of ordinary care, attention and diligence, and not as common carriers. In the view I have taken of the facts of this case, it is unnecessary to decide whether the defendants are common carriers, warehousemen or other bailees for hire. At the argument of this case it was urged by the plaintiffs that defendants were guilty of negligence in not causing to be hung the Loyalsock boom, which was under their control, whereby most of the property of the plaiutiffs might have been saved. Mill owners locate their mills on the streams and below the boom where the logs are to be caught, so that when the logs are rafted out they may be safely, easily and cheaply floated down stream to their mills. The plaintiffs’ mill is located a mile or more below the lower end of the Susquehanna boom. The Loyalsock boom is a mile or more below the plaintiffs’ mill. If plaintiffs’ logs were caught in the Loyalsock boom they would, when rafted out, have to be brought up the river or taken into the canal at some point below, and thence towed up to the plaintiffs’ mill. The plaintiffs’ logs in 1867 and 1868, when put into the water, were destined for and were subsequently driven into the Susquehanna boom. The plaintiffs had no desire to have their logs go to any other place, except that they preferred that they might be caught in the Loyalsock boom rather than bo lost down the river. If plaintiffs desired their logs to pass the Susquehanna boom it was their duty to give notice to the defendants, as required by the seventh section of their charter. The Loyalsock boom is a boom4 structure in the west branch of the Susquehanna river, located about three miles below the lower end of the Susquehanna boom. The two companies were consolidated by an Act of Assembly, entitled “ An Act to consolidate the Susquehanna Boom Company and the Loyalsock Boom Company,” approved 2.1st day of April, 1858. The effect of the consolidation was decided in Gould v. Langdon et ah, 7 Wr., 365, where it was held, as follows:— “Where sepáralo statutes are passed authorizing the erection of a boom, they must be interpreted separately, though both become the property of one company; and an Act consolidating the two boom companies will not change the liability of either under its Act of incorporation to deliver logs at its own boom, the boom in which they were caught.” The important principle of law applicable to this case is this:— Common carriers, and a fortiori other bailees for hire, are not responsible for the occurrence of an injury resulting directly from the “ unavoidable dangers of the river” or “inevitable accident,” provided it appear that they were guilty of no fault in falling into the danger, nor in their efforts to extricate themselves from it: Morrison v. Davis & Co., 8 Harris, 171, cited with approval in Railroad Co. v. Reeves, 10 Wall., 176 ; Hays v. Kennedy et al., 5 Wr., 378. Both these Pennsylvania cases are published as leading cases in this country in Rediield’s Leading Am. Railway Cases, Vol. II., pp. 20 and 281. After a careful consideration of the law and facts of this case, I arrive at the following conclusions :— 1. That the court has jurisdiction of the plaintiffs’ case in this form of action. 2. 1 find that in the years 1867 and 1868, after plaintiffs' •logs were delivered into defendants’ boom, large quantities escaped therefrom each year, and were wholly lost to the plaintiffs. 8. I find that the plaintiffs’ logs, for the loss of which they bring this suit, were lost directly by the “ unavoidable dangers of the river” or “inevitable accident” incident to the booming of logs in the west bran oil of the Susquehanna river under the defendants’ charter. 4. 1 find that in respect to the plaintiffs’ logs, for the loss of which this suit is brought, the defendants were not guilty of any fault, negligence or want of care either before, at the time of, or after the accidents happened whereby the losses occurred. 5. All the points submitted by counsel are affirmed so far as they are consistent with the foregoing conclusions, and so far as they are inconsistent therewith, or rendered unnecessary of decision thereby, they are refused. 6. I find in favor of the defendants. And now, December 31st, 1883, it is ordered that notice be given of the filing of this decision, and that judgment be entered in accordance therewith in favor of the defendants and against the plaintiffs, unless exceptions are filed, see. reg. The plaintiffs filed exceptions to the decision (twenty-five in number) covering the findings of fact and conclusions of law, some of which the court sustained, but most of which were overruled. In the opinion of the court on the exceptions, however, the court said:— “The action of the court on the exceptions filed requires no change in the six specific findings or conclusions of the court, and it is therefore ordered that judgment be entered thereon in favor of the defendants and against the plaintiffs.” The plaintiffs took this writ of error, assigning for error, in substance, the refusal of the court to sustain their exceptions, and the above judgment. The defendant company is liable under its charter for the logs lost out of the boom in 1867 and 1868, without proof of negligence. The company, in accepting the charter took it cum onere; and it is not only a contract, but also a law imposing upon the defendants as a corporation the burden of performing a certain duty to the public: Penna. & Ohio Canal Co. v. Graham, 13 P. F.'S. 290 ; Penna. R. R. Co. v. Commonwealth, 3 Grant, 129; Kiddle v. Proprietors of Locks and Canals on Merrimac River, 7 Massachusetts, 169; Head v. Provideuce Insurance Co.. 2 Craneh, 137; Bank v. Dandridge, 12 Wheaton, 64; Bank v. Earle, 13 Peters, 587; Perrine v. Canal Co., 9 Howard, 184; Fowler v. Scully, 22 P. F. S. 456. The defendants were negligent, because in 1867 and 1868 their booms were not sufficiently strong, nor of sufficient capacity to secure the quantity of logs which they knew, or had the means of knowing, they would be required to hold during those years respectively; and being so negligent the}7 are liable to the plaintiffs. The defendants were negligent because they did not hang their lower boom, which belonged to the Loyalsoek Boom Company. Had they done so, as they were requested and notified to do, the logs would not have been lost. Under the enormous powers that the company had in controlling the logs which passed into their boom, this was gross negligence, and the defendants are liable : Phila. & Reading R. R. Co. v. Derby, 14 Howard, 4G8; Wabash Railway Company v. McDaniels, 107 U. S. 454; Schouler’s Bailments, 399, etc. The defendants are liable to the plaintiffs because they did not observe the proper care to secure the logs of the plaintiffs in 1867 and 1868, required by the common law rule of diligence on the part of such bailee : Railway Co. v. McDaniels, supra; Railroad v. Swift, 12 Wallace, 262; Beckman et al. v. Shouse, 5 Rawle, 189; Verner v. Sweitzer, 8 Casey, 208; Farnham v. Railroad Co., 5 P. F. S. 59; Hays v. Millar, 27 Id., 238. The defendant was bound to provide against all states of the river, except an extraordinary flood, and the very facts found b}r the court below show that there was nothing in the circumstances of this case to excuse the company from the loss of the logs in 1867 and 1868; both a “spew” and an “overflow,” which were the cause of these losses being avoidable by an observance on the part of the company defendant of the specifications of the structure described in their charter, which they were to construct, and at all times keep and maintain in the river sufficiently strong to secure all the lumber contained therein. Findings of fact by the court below have the same conclusion and binding force as the verdict of a jury, and such findings of fact are not assignable for error if there was evidence to have submitted to a jury: Kerr v. Ames, 39' Leg. Int., 392; Phila. v. Linnard, 1 Out., 250; Griffith v. Sitgreaves, 9 Norris, 161; Jamison v. Collins, 2 Id., 359; Lee v. Keys, 7 Id., 175; Brown v. Dempsey, 14 Id., 243; Camden and Phila. Steamboat Co. v. Monaghan, 10 W. N. C., 46. The charter of the defendant company is, so to speak, but a re-enactment of the common law liability of bailees for hire, and the duty of’the company under it is no more than to use ordinary diligence in the care and preservation of the property intrusted to them: 1 Smith’s Leading Cases, 300; 2 Chi tty on Pleading, 334 ; 2 Id., 352; Ross v. Hill, 52 Eng. Common Law Rep., 877 ; Huntsville Bank v. Hill, 1 Stewart, 201 (18 Am. Dec. 39); Penna. Canal Co. v. Bnrd, 9 Norris, 284. In actions for negligence the burden of proof is on the plaintiff, the law will not presume it for him ; and in this case the plaintiffs have failed to prove it before the lower court: R. R. Co. v. Fries, 6 Norris, 234; Phila., Wilm. and Balt. R. R. Co. v. Stinger, 28 P. F. S., 225; R. R. Co. v. Killips, 7 Norris, 405 ; Adams Express Co. v. Sharpless & Sons, 27 P. F. S., 522; Baker v. Fehr, 1 Out., 70; McCully v. Clarke et al., 4 Wr., 399; Albert et al. v. N. C. R. R. Co., 2 Out., 316; Farnham v. Camden and Amboy R. R. Co., 5 P. F. S., 61; Story on Bailment, § 410. The defendant company was liable at common law and under their charter, only for those consequences which may have arisen from the neglect to make provision for those dangers which ordinary skill and foresight is bound to anticipate: Morrison v. Davis & Co., 8 Harris, 171; R. R. Co. v. Reeves, 10 Wallace, 176 ; Hays v. Kennedy et al., 5 Wr. 378 ; Humphreys v. Reed, 6 Wh., 435 ; The Morning Light, 2 Wallace, 550 ; Union S. S. Co. v. N. Y. & V. S. S. Co, 24 How. 313. The rate charged by a carrier shall be proportionate to the risk and responsibility incurred. But the Boom Company is restricted as to the rates it can charge by section 6 of its charter: Gordon v. Little, 8 S. & R. 558.
109 Pa. 72Losch's Appeal (1885)
1. The owner of land is the person in whose name proceedings are to be instituted to recover damages for land taken for a public street. 2. Such damages are a personal claim of the owner of the property at the time the injury occurs, and do not run with the land or pass by a deed thereof although not specially reserved. It is immaterial that the deed is made after the damages have been assessed but before the vendor’s right of appeal has expired.
109 Pa. 75Appeal of Allentown (1885)
Aureal from the Orphans’ Court of Lehigh county: Of January Term, 1884, No. 347. Appeal of the eity of Allentown and the Board of Water Commissioners, from a decree of said court confirming the report of an Auditor appointed to re-settle and make distribution, in the matter of the account of H. G. Stiles, administrator of James Sweeney, deceased. Before the Auditor (S. S. Dufey, Esquire), the following facts appeared: Harry G. Stiles as administrator of James Sweeney, deceased, filed his account, showing a balance in Ms hands of $274.85. The entire fund represented the proceeds of the sale of the decedent’s real estate. There had been a trifling amount of personal property — three dollars and seventy-seven cents— which the widow, Catharine Sweeney, took on account of her $300 exemption allowance. She claimed the balance of her “ exemption ” out of the real estate, and the appraisers returned that it could not be divided without spoiling the whole, and that she should be entitled to receive $296.23 out of the proceeds of its sale. This return was confirmed on July 3d, 1882. Before the Auditor, the widow claimed that the entire balance in hand be distributed to her, under the Act of April 14th, 1851, setting apart $300 to widows of decedents. The National Loan and Building Association presented a mortgage which they held against the premises, and which had been discharged by the Orphans’ Court sale, and asked that distribution be first made to it. This mortgage was dated May 22d, 1876, and the association agreed to accept $110 in full, for the same and interest. The city of Allentown and the water department of the city of Allentown presented their liens for city and water taxes filed against the real estate, of which the proceeds were in the hands of the administrator. The taxes were for the years 1876 to 1881 inclusive; amount of liens $54.56, costs $29.10. The liens were filed under the Act of 1874 dividing cities into classes. ' The city of Allentown accepted the provisions of that Act as its charter sometime in September, 1874. The Auditor distributed first to the mortgagee, the balance to the widow, and excluded the tax liens altogether’. Exceptions filed to the Auditor’s report in behalf of the -city and the water department, were dismissed by the court, and a decree entered confirming the Auditor’s report. Thereupon the city of Allentown and the water commissioners took this appeal, assigning for error the decree of the court confirming the Auditor’s report, and refusing to distribute the fund to the tax liens, in preference to the mortgage and the widow’s exemption. It was evidently intended that under the Act of May 23d, 1874 (Purd., 1911, PI., 63), no claim against real estate should be preferred to the lien of municipal taxes. The language is as follows: “All taxes assessed and levied upon real estate in pursuance of this Act and the laws and ordinances of said city, shall be lien on such real estate, from the time of such levy; and the lien hereby created shall have priority to and shall be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility which the said real estate may become charged with or liable to from and after the passage of this Act.” It was held by this court in Nerpel’s Appeal, 10 Norris, 334, that, as against a mortgage, the widow’s exemption cannot be allowed, and that in a contest between the two, over the proceeds, the mortgage must be preferred. The court recognized that rule in this case and distributed first to the mortgagee, giving the widow only the balance. But the Act of 1874 declares that the lien for taxes shall have priority to, and shall be fully paid and satisfied before any mortgage. The logic of the position of the court below is, that while our lieu is to be preferred to the estate created by the mortgage, yet it is not to be preferred to an estate as to which the mortgage has priority. We concede that it has often been held that the widow’s exemption is to be preferred to a judgment. But the Act of 1874 has created a new lien that is to be higher even than the estate created by a conveyance in mortgage, yet the court below holds that the lesser estate, the mortgage, is to be preferred to the higher, to wit, the tax liens. Huifort's Appeal, 10 W. N. C., 528, and kindred cases settled a principle-analogous to the one we contend for here, 'filie debtor’s exemption can be claimed against a judgment, but not against a mortgage. In Huifort's Appeal it is held that where a judgment is the first lien and the mortgage the second, the exemption cannot be claimed against the judgment, because to permit it it would be to affect the mortgage. So here, as the exemption cannot be claimed against the mortgage it certainly cannot be claimed as against a tax lien which the statute lien expressly says must bo paid before the mortgage. The Act of April 14th, 1851, giving to widows $300 out of estates of decedents, has never been abridged or repealed, and has always been sustained by this court. The Act of 1874 was not intended to repeal it. That simply provides for a lien, and for the enforcement thereof. The widow is not deferred to any claims, except liens for purchase money : Hildebrand's Appeal, 3 Wr., 133 ; Nottes's Appeal, 9 Id., 8G1; Nerpel’s Appeal, 10 Norris, 331; Huffort’s Appeal, 10 W. N. C., 528.’
109 Pa. 79Banger's Appeal (1885)
1. Under the provisions of the Act of March 18th, 1875, § 1 (P. L. 15), authorizing cities of the third class to assess and collect taxes not exceeding one per cent, per annum upon all persons, real and personal property, and also other matters and things within said cities taxable for state or county purposes, such cities may impose taxation upon subjects not rendered by law taxable for state purposes. 2. Under the provisions of the said Act, cities of the third class may impose a tax upon the occupations of their citizens. 8. Under the provisions of the above Act, cities of the third class may impose a tax of a sum certain upon all occupations, or may classify different occupations, and assess a uniform occupation tax upon each class. .It cannot, however, impose an occupation tax based upon the amount earned by each individual in Ms occupation. This is an income tax unauthorized by law. 4. A city of the third class by ordinance directed that a certain tax should be imposed upon “all personal property, and all objects and things assessed as unclassified.” In pursuance of this provision the assessors were directed “ to assess all offices and posts of profit, professions, trades, and occupations,” according to the income derived fi'om each. The assessors assessed laboring men, clerks, and professional men according to the income derived from their occupation. Bankers aud business men were assessed in proportion to the sum that it would cost to hire a clerk to perform their duties. Upon application by a taxpayer for an injunction to restrain the collection of a tax assessed upon his occupation as above: Held, that the tax was an income tax not authorized bylaw; that its assessment was in violation of Article IX., § 1, of the Constitution of Pennsylvania, requiring all taxes to be uniform on the same class of subjects, and that an injunction would therefore issue. 5. Wien a tax is lawfully assessed, and there are mere irregularities in the valuation and assessment, a Court of Equity will not restrain its collection by injunction. But where there is a want of power to tax, or there is a disregard of constitutional provisions in the mode of assessment, equity will interfere by injunction to restrain its collection.
109 Pa. 95Theyken v. Howe Machine Co. (1885)
Error to the Court of Common Pleas, of Lehigh county : Of July Term, 1884, No. 43. Scire facias by the Howe Machine Company on a mortgage given by Lawrence Theyken and Emily C., his wife, to William H. Ruhf, on March 2d, 1874, who assigned it to William H. Deshler, on August 2d, 1874, and the said William H. Deshler assigned the same to the plaintiff on December 17th, 1874; an affidavit of defence being filed, the case was referred to arbitrators who awarded in favor of defendants, from which plaintiff appealed. The defendants at the trial entered a plea of non est factum, payment with leave, etc. On the trial before Albright, P. J., evidence was given on the part of the defendants to the effect that the face of the mortgage had been raised from $400 to $453 ; that the Howe Machine Company had an office in Allentown from 1872 to 1877, and that William H. Deshler was the general manager; that Mr- Deshler handled and sold the machines of the company, sometimes by the dozens; leases of machines were made in the name of the company and returned to Deshler; that Deshler signed his name to the agreement which he made with the defendant, “William H. Deshler, special agent.” The defendants then made the following offers of evidence, Lawrence Theyken being upon the stand:— “Defendants propose to prove that William H. Deshler was the agent of the Howe Machine Company in 1872,1873, 1874, and 1875; that the witness (Lawrence Theyken) was also one of the agents of the company, selling and leasing machines for the company; that the contract between the company and They-ken was that the commissions which he had earned on the machines should be paid in this way, viz: That the company would pay the mortgage and then satisfy it, and then charge him with the amount of mortgage with interest upon his account against the company; that these commissions and other claims amounted to $486.60 on May 12th, 1875; that William Ruhf, after the mortgage was due and payable, demanded this.money; that'Theyken went to William H. Deshler, the agent of the company, and told him that the company had to pay him his commissions; that Mr. Ruhf desired to have his mortgage paid, to which Mr. Deshler replied that he would buy the mortgage and pay it and charge him with the amount; that it was distinctly agreed between the parties that this mortgage should be paid in the manner indicated.” Objected to by plaintiff as incompetent and irrelevant and not admissible under the pleadings, because the subject matter proposed to be set off as a defence to the mortgage is matter not arising out of the transaction out of which tlio mortgage arose, and hence is not admissible as a set-off, and therefore barred by the Statute of Limitations, and because William II. Deshler had no authority to make the alleged contract for the Howe Machine Company, if any such contract was made. The Court. “ The Court permit the defendants to show that the contract between the company and Mr. Theyken was, that the commissions should be paid in a particular way; that is, that the company would pay the mortgage and have it satisfied and charge the witness with the amount of the mortgage. If it is proposed to show that the defendants made this contract with William H. Deshler, then the defendants are required by the Court to show, in the first place, the authority of Deshler so as to bind the company, with the order of proof thus indicated.” Objection overruled. Exception. Q. “Your commission against the company is how much ?” Objected to. The Court. “ The Court understand this to be an offer to prove the amount as stated in the general offer, and there being no evidence from which it could be found that Mr. Deshler had authority to make the contract for the company, as set forth in the offer of evidence, the objection is sustained, and the objection to the offer of evidence heretofore made by the defendants which was objected to and ruled upon at the time, is sustained.” Exception. Defendants propose to show that Lawrence Theyken acted as a selling agent for the Howe Machine Company from August 17th, 1872, to May 12th, 1875, and during that time his commissions on the sales and leasings of machines for the company amounted to $486.60, and that the same has never been paid. Objected to as incompetent and irrelevant, because what is proposed to be set forth is barred by tlie Statute of Limitations.” Objection sustained. Exception. Q. “Did you sella machine for the Howe Machine Company on May 13tii ?” Objected to as incompetent and irrelevant. The Court. “The Court understood this to be an offer to show something that is contained in the general offer, and as the Court has already indicated, the evidence thus proposed to be given will not be received unless there is first evidence from which agency on tlie part of Deshler to bind the company can be found, or some action on tlie part of the officers of the company from which it can be found that the company agreed that this mortgage should be paid by the earnings of Theyken.” Objection sustained. Exception. “ Defendant proposes to show by the witness that some time in 1875 he went to the office of William H. Deshler, who was a special agent of the Howe Machine Company, and demanded money due him as commissions, because he had to pay a mortgage to William Ruhf, the mortgage in suit; that Mr. Deshler then said he would pay the mortgage; that he could dispose of some machines to Mr. Ruhf, and in that way the company could make some money by the operation; that in pursuance of the representation of Mr. Deshler to Mr. Theyken he consented to the arrangement, viz., that Mr. Deshler, as agent of the compan]', should pay the mortgage, and that at this time Mr. Theyken had a balance to get from the company amounting to more than the mortgage due to Mr. Ruhf.” Objected to as incompetent and irrelevant, because it has not been shown that Mr. Deshler was the agent of the company, authorized to make an arrangement like that alleged in the offer. In point of fact the company did own the mortgage for over a year at the time alleged by assignment to William H. Deshler. Objection.sustained. Exception. Verdict for plaintiff for $703.48, and judgment thereon; whereupon defendants took this writ, assigning for error the action of the court in excluding the above offers of evidence. The errors assigned to the rulings of the court below all hinge upon a single question: Was the evidence of the defendant in the court below sufficient to establish such an agency of William H. Deshler with the company as to allow the defendant to show what amount the company owed him when he left its employ? The authority of an alleged agent may be established by circumstances ; what is sufficient evidence of agency is a question for the jury : Valentine v. Packer, 5 Barr, 333; Bank v. Mechanics’ Bank, 12 Am. Law Reg. 51. The fact of agency may be shown by the acts of the agent and their recognition by the principal: Wood-well v. Brown, 8 Wr., 121; Balt, and Phila. St. Co. v. Brown, 4 P. E. S. 77. Where there is no evidence, or a mere scintilla of evidence, it is the duty of the court to take the case from the jury: Howard Express Co. v. Wile, 14 P. F. S. 201; Hyatt v. Johnston, 10 Norris, 196; Raby v. Cell, 4 Norris, 80. The burden of proof rests upon the party making the allegation to show agency and the extent of an agent’s authority, in order to bind a principal. The declarations of an agent, or acts done by him, are not evidence, unless shown to be said or done with the knowledge of bis principal: Whiting & Co. v. Lake, 10 Norris, 349; Clark v. Baker, 2 Wharton, 340; Phunsted v. Rudebah, 1 Yeates, 502; Hannay v. Stewart, 6 Watts, 487; Grim v. Bonn ell, 28 P. F. S., 152; Moore v. Patterson, 4 Casey, 505; American Underwriters’ Association v. George, 1 Out.; 238. Ratification of a contract by a principal necessarily implies the relation of principal and agent, which relation must be proved: Pittsburg and Stoub. Railroad Co. v. Gazzam, 8 Casey, 340; Porter v. Patterson, 3 Harris, 229; Schraek v. McKnight, 3 Norris, 26.
109 Pa. 100Lebanon Mutual Insurance v. Losch (1885)
Error to the Court of Common Pleas of Lehigh county: Of July Term 1884, No. 171. This was an action of debt, by Charles Loseh against tlio Lebanon Mutual Insurance Company on two policies of fire insurance. Plea, nil debet. On the trial, before Meyers, P. J., of the third judicial district, the following facts appeared : In 1870 and 1871 the defendants issued to the plaintiff two policies of insurance; one covering certain buildings used for a livery stable in the city of Allentown, and the other personal property which might be therein from time to time. The application for the policies contained the following clause : “And the assured hereby covenants and engages that the representations given in the application for this insurance is a warranty on the part of the assured, and contains a just, full and true exposition of all the facts and circumstances in regard to condition, situation and value of property insured.” The eleventh interrogatory in the application was: “If encumbered, how and to what amount?” to which the plaintiff answered, “ No.” The policies contained the following clause: “Provided always.....And that this policy is made and accepted in reference to the conditions hereunto annexed, as well as the application and survey, which are to be used and resorted to, in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.” And also the following condition, No. 9 : “If, during the insurance, any alterations be made on the premises, buildings be erected, or change made in the use or occupation of the same or neighboring premises or otherwise, whereby the risk or hazard is increased, so as to increase the rate of insurance, it shall be the duty of the insured to give notice thereof to the secretary, pay the additional premium and obtain the consent of the company thereto in writing, otherwise the insured shall not be entitled to recover for any loss or damage by fire originating in consequence of such change.” At the time the policy was accepted there was a mortgage of two thousand dollars upon part of the buildings. This mortgage was afterwards removed, and a new one covering the entire premises substituted. The latter mortgage the defendants consented to, and were paid for approving, several years before the fire. Subsequently the plaintiff rented the lot adjoining the livery stable and his tenant put up a frame building, used as a carriage factory, within fitty feet of the insured buildings. No notice of the erection of the carriage factory was given to the defendants, nor was any additional premium paid. The insured buildings were destroyed by a fire which, it was claimed, originated in the carriage factory. The defendants offered several witnesses, one a bartender from the neighborhood; another an insurance agent, and another the local agent of the defendants, by whom they proposed to show that the risk to the insured buildings was increased by the erection of the carriage factory; and whose opinions they proposed to ask upon the increase of risk. Objected to on the ground that the witnesses had not been shown to have such knowledge as to warrant the admission of their evidence. Objections sustained. (Eighth to thirteenth assignments of error, inclusive.) Defendants submitted the following points:— First. “It being an admitted fact that during the term of the insurance of the premises alterations were made thereon, and buildings were erected, whereby the risk or hazard, as well as the rate of insurance, was increased, and it being the undisputed, testimony in the cause, that no notice of said alterations and erecting of buildings was given to the company, the plaintiff is not entitled to recover.” Refused. (First assignment of error.) Second. “It being an admitted fact that during the term of the insurance, buildings were erected, and the undisputed testimony in the cause being that thereby the risk or hazard was increased, as well as no notice of such erection was given, the plaintiff is not entitled to recover.” Refused. (Second assignment of error.) Third. “It being an admitted fact, that during the term of insurance alterations were made on the premises, and buildings were erected, whereby the risk was increased, as well as the rate of insurance was increased, and the undisputed evidence being that no notice of such alteration or change was given, and the proof in the cause being that the fire originated in the building erected during the term of the insurance, the risk of the defendant thereby increased and their contract wholly violated as is contained in the conditions annexed to the policy, and therefore the plaintiff cannot recover.” Refused. (Third assignment of error.) Fourth. “It being an undisputed fact that the fire originated in the building erected during the time of the insurance, whereby the buildings insured-were destroyed, tlie plaintiff cannot recover.” Refused. (Fourth assignment of error.) Fifth. “Under the form of action and the pleadings in the case, the plaintiff cannot recover.” Refused. (Fifth assignment of error.) Sixth. “It being the undisputed testimony that the fire originated in the carriage and paint shop, the building erected or permitted to be erected by the plaintiff, without notifying the defendant, and first obtaining its consent and paying the increased rate of insurance, and that the fire from said carriage and paint shop communicated to the building insured,” the plaintiff is not entitled to recover. Refused. (Sixth assignment of error.) The Court charged the jury, inter alia, as follows:— “ I have already said to you where the defendant undertakes to say that the answer to a certain question in this paper [the application] amounts to a warranty and that warranty does not appear in the body of the policy itself, you are to treat the answers in the application simply as representations, and there can only be a defeat in case the jury find that those representations were falsely made.” (Seventh assignment of error.) Verdict for plaintiff and judgment thereon ; whereupon the defendants took this writ assigning for error the answers to their points; the rejection of evidence, as above noted, and that part of the general charge quoted. Tt is not denied that Losch answered the eleventh interrogatory in the application incorrectly. If, by the contract, his statements were warranties, then .this answer is fatal to a recovery on the policies, whether made by mistake or fraudulently : Cooper v. Farmers’ Mutual Fire Ins. Co., 14 Wr., 299; Eilenberger v. Protective &e. Ins. Co., 8 Norris, 464; McClure v. Water-town &c: Ins. Co., 9 Norris, 277; Birmingham &c. Ins. Co. v. Kroegher, 2 Norris, 64; Lancaster &c. Ins. Co. v. Lenheim, 8 Norris, 497. The court below based its ruling on the fact that there were no words of warranty in the policy itself, and because it was not therein stipulated that the statements of the applicant in his application should be warranties on his part. This we believe to have been error under the cases: Commonwealth Mutual Fire Ins. Co. v. Huntzinger, 2 Out. 41. The evidence as to increased risk by building the carriage factory, should all have been admitted. The witnesses rejected were not offered as experts ; they were all familiar with the neighborhood and were able to give an opinion whether the risk was increased. The evidence was admissible, and it was the province of the jury to determine its weight. A statement in an application for insurance is to be considered a representation rather than a warranty, unless it is clearly made a warranty by the terms of the policy, or by some direct reference therein : Daniels v. Hudson River Fire Ins. Co., 12 Gush., 416; Owens v. Plolland Ins. Co., 56 N. Y. 565; Wood on Fire Ins., page 292, § 149; Columbia Ins. Co. v. Cooper, 14 Wr. 331; Cumberland Valley Co. v. Mitchell, 12 Wr. 374 ; Frisbie v. Fayette Ins. Co. B Casey, 825. The application sets out that the assured covenants that the representation therein “is a warranty,” and “contains a just, full and true exposition of all the facts and circumstances in regard to condition, situation and value of the property insured.” The words “ condition, situation and value ” do not include incumbrances. Condition as therein used refers to materials, character of roof, whether buildings are old or new, and their condition of repair. . Situation requires a statement of adjoining properties. The value of the property is by the terms of the application “ estimated by me at not more than its actual cash value.” It is not pro-? vided that all the answers are warranties; only those that relate to condition, situation and value. Stipulations in the application that certain things are warranties do not necessarily make them such: Wood, on Fire Ins., § 138, p. 275. The policy does not make the application a part of the contract of insurance. Under it, the collateral papers are to be resorted to only to explain what is otherwise not specially provided for. By the terms of the contract, therefore, the application and answers therein are regarded as mere representations, not avoiding the contract, if untrue, but avoiding it if false and fraudulent. Under condition 9 of the policy, the mere additional risk of fire to the insured property by reason of the erection of a new building is not enough ; it must be such an increased risk as to increase the rate of insurance. No legal proof was offered to show an increase of the rate on account of the change in the use of adjoining property. The fact is the property was rated in the class of extra-hazardous risks, being a livery stable, and no greater rate of insurance was provided than was paid by Losch for the'risk assumed. If no additional premium was payable, because of the alter-' ation or change of the premises ; if the company had provided for no additional premium, then it followed, necessarily, that there was no breach of contract. Losch built nothing on the adjoining premises. He leased the vacant lot to another who built a small frame shop. It did not adjoin the property insured. If it had been reported to the company no greater premium would have been charged. The company cannot complain that the court excluded the proof, because it failed to show, as a matter of fact, that there was an increase of the rate of insurance and the payment of additional premium.
109 Pa. 109Rogers v. Manufacturers' Improvement Co. (1885)
113. This was an action of assumpsit by tlie Manufacturers’ Improvement Company against Jonathan Rogers, to recover a stun alleged to bo due for tolls for floating lumber down Elk creek, a tributary of Loyalsock creek, for the years 1880 to 1884 inclusive.
109 Pa. 113City of Allentown v. Grim (1885)
322. Tbis was a scire facias sur municipal lien, filed by tbe City of Allentown (a city of the third class, under the Act of 1874, dividing cities into classes) against Ephraim Grim, for the cost of laying water mains on Hamilton street in said city, along the front of the defendant’s property.
109 Pa. 116Township of Moreland v. Gordner (1885)
Error to the Court of Common Pleas of Lycoming county: Of January Term, 1885, No. 184. This was an action on the case by George H. Gordner against the township of Moreland to recover damages for injuries suffered by the plaintiff by reason of negligence of the supervisors of said township in failing to keep a certain bridge and highway in repair, by reason whereof bis wagon and team were injured. The defendant pleaded former recovery and not guilty. . On the trial, before Cummin, P. J., the defendant, in support of its plea of former recovery, put in evidence the transcript and record of a suit which the plaintiff had brought soon after the accident, before a justice of the peace, against the defendant, for the same cause of action, in which judgment for the plaintiff had been entered by the justice and the defendant had appealed to the Common Pleas. It further appeared by said record, that, when the case was called for trial in the Common Pleas, the plaintiff suffered a voluntary nonsuit and paid all the costs. lie afterwards brought this suit. The defendant’s counsel asked the court to take the ease from tho jury, and hold that the taking of a nonsuit, in the former suit, was a bar to the recovery by the plaintiff. The court reserved the point and the jury found in favor of tho plaintiff for $128.93, subject to the ruling of the court on the point reserved. The court afterwards entered judgment for the plaintiff on tbe verdict and point reserved; whereupon the defendant took this writ of error, assigning for error the above action and judgment of the court. A judgment against a plaintiff, on the merits, from which he appeals to the Common Pleas, and discontinues his suit, is a bar to any othei’ for the same cause of action; the rule is the same where the defendant took the appeal: Rose v. Turnpike Co., 3 Watts, 46; Felton v. Weyman, 10 Barr, 71; Act March 20th, 1810. The nonsuit was in reality and effect a retraxit, a formal withdrawal of the record, and a final end of the controversy,
109 Pa. 118In re Road in South Abington Township (1885)
Certiorari to the Court of Quarter Sessions of Lackawanna county: Of July Term, 1884, No. 54. This was a petition by sundry inhabitants of the township of Abington for a public road, to lead from a point at or near Isaac Ackerley’s, on a highway leading from Newton Center to O’Donnel’s hotel, terminating at a point on a public road leading from Clark’s Green to Newton Center, at a point near the Hendershot spring. Viewers were accordingly appointed, and afterwards presented the following report:— To the Judges of the Court of Quarter Sessions of the Peace of the annexed order: We, the subscribers, appointed by the said court to view and lay out the road therein mentioned, report: That having been first severally sworn in the form and manner prescribed by the said order and according to law, that all of us having viewed the ground for the proposed road, and all concurring, did lay out and now return the same for a public road. Beginning twelve feet from east corner of L T. Aekerlev’s hbrse shed. (Here follow the different courses and distances.) Thence north forty-six and one half degrees west twenty-nine rods to corner in centre of road leading from Newton Center to Clark’s Green and about four rods east of the Hendershot spring. With reference to the improvements through which it passes a plot or draft whereof is hereby annexed. Said road to be fifty feet clear of fences. And we assess damages as follows, viz.; etc., etc. Witness our hands and seals. Dated this 19th day of July, 1879. J. W. Boioifl, seal H. P. Jacobs, seal' Ira O. Atherton, SEAL Viewers. The following exceptions were filed to the report:— 1. The township, or townships, in which the road is laid, does not appear in the petition, order of appointment, or report of viewers. 2. The termini fixed in the report differ from those fixed in the petition and order. 8. The viewers were not sworn in the form and manner prescribed by law. 4. Legal notice of the meeting of the viewers to make the view was not given. 5. The viewers did not endeavor to obtain releases of damages from the owners of land over which the road was laid. After various proceedings, by review, which were quashed, the court finally entered a decree confirming absolutely the report of the viewers, above printed. The exceptants thereupon took this writ of certiorari, assigning for error the not sustaining the above exceptions, and the decree confirming the report of the viewers. The termini named in the petition are not followed in the report. This is necessary: Road in Bybervy, 6 Phila., 384; Anderson’s Appeal, 25 Leg. Int., 77; Ligonier Road, 21 Pitts. L. J., 92; Bean’s Road, 11 Casey, 280 ; Springfield Road, 23 P. E. S., 127; Catharine Twp. Road, 26 Id., 189. The report must show that notice has been given: Boyer’s Road, 1 Wr., 257; Appeal of Central R. R. of N. J., 6 Out., 38. Whether notice of the view was given is a question of fact. The decision of the court below is final on that subject. It is presumed that the viewers complied with the law: Kirk’s Appeal, 4 Casey, 185; Spring Garden Road, 7 Wr., 144; Middle Creek Road, 9 Barr, 69; Baldwin and Snowden Road, 3 Grant, 62.
109 Pa. 124Lee v. Woolsey (1885)
This was an action on the case, by S. S. Lee against James Woolsey, to recover damages for personal injuries received while in the employ of the defendant. On the trial, before Hand, J., the evidence on behalf of the plaintiff showed the following facts : The plaintiff was in the employ of the defendant, who was one of the contractors for the erection of the Academy of Music. It was plaintiff’s duty to work preparing the roof of the building, which was not yet put up. On the day of the injury he was engaged with others in raising the jack-rafters to the upper floor of joist, which was in place. A. space had been left between the joists of from nine to twelve feet, the width of two joists, for the purpose of hauling up these rafters through tire floor. The plaintiff had been in the employ of defendant about twenty days, and the hoisting had been going on for ten days or two weeks. A gin-pole had been erected by Rymer, one of defendant’s foremen or contractors, for the purpose of raising tlie rafters and other timber. This gin-polo ran through and above the opening, and bad attached to it ropes and tackles, so arranged that one rope ran down and out to a gin located outside of the building, which was revolved by a horse in charge of a driver. This tackle was arranged so as to conveniently hoist any weight perpendicularly from the bottom of the gin-pole to the joist above. For tlie convenience of the men on the upper floor, who received the rafters as they were hoisted, one or two planks were placed across the opening between the joists and near the gin-pole. These planks were used for scaffolding and to rest the rafters upon after they had been hauled through the opening, previous to loosening tlie tackle and moving the rafters one side on the upper floor. It was necessary to remove these planks before the rafters reached tlie opening in order to let them through, also as matter of safety, to save their being slid one side by the rope and tackle, if it did not draw up perpendicularly. When a rafter had been received, and the persons above were ready to receive another, the word “all right” would be sent down to the man at tlie foot of the gin-pole, and he would signal to the driver, who would start the horse. Just before the accident by which the plaintiff was injured, 1he defendant came to see how the work was going on, and not flailing that as much progress bad been made as in bis judgment should have been, he made use ot strong language, and told the men to hurry up. At this time the tackle had been let down from above after a rafter had been hoisted, and the plaintiff had hitched it to another rafter, which lay. not at the foot of the gin-pole, but a distance of from 18 to 20 feet off. The plaintiff testified that he heard the defendant call down “all right;” he therefore started the horse, and as the rafter was not directly at the bottom of the gin-pole, the rope pushed off the loose planks above, one of which in falling struck the plaintiff. Had the plaintiff looked up he could have seen that the planks had not been removed. After the plaintiff’s case was closed, the court on motion entered a compulsory nonsuit, on the ground of contributory negligence. ' This nonsuit the court in banc refused to take off. Whereupon the plaintiff took this writ, assigning for error this action of the court.
109 Pa. 128Commonwealth ex rel. Pughe v. Davis (1885)
Error to the Court of Common Pleas of Lackawanna county: Of January Term, 1885, No. 222. Upon the filing of a suggestion for a writ of quo warranto by the Commonwealth ex rel. Lewis Pughe, to test the right of one John R. Davis, to the office of Poor Director for the Scranton Poor District, and alleging that the relator had been duly elected thereto, a rule was granted to show cause why the writ should not issue. The real question sought to be determined was whether the office of Poor Director in the Scranton Poor District is an elective one, or one to be filled by appointment of the President Judge of the county. Afterwards the court (Hand, J.), upon consideration of the Acts of Assembly respecting the said office, being of opinion that the office was not an elective one, discharged the rule and refused the writ. Whereupon the relator took this writ of error, assigning for error the action of the court. A writ of quo warranto is not a writ of right, and courts are not bound to issue it except in the exercise of a sound discretion: Commonwealth v. Reigart, 14 S. & R., 216; Commonwealth v. Cluley, 6 P. F. S., 270 ; Commonwealth v. Jones, 2 Jones, 365; Commonwealth v. McCarter, 2 Out., 607. A writ of error does not lie to the exercise of a sound discretion vested in the court below: Renninger v. Thompson, 6 S. & R., 1; White v. Leeds, 1 P. F. S., 187; Gump’s Appeal, 15 Id., 476. A writ of error is a statutory right, and unless given by statute it does not lie. Under the statutes relating to writs of quo warranto, a writ of error will lie only to the judgment of the court upon a writ of quo warranto itself: Const, of Penna. Art. 5, § 3 ; 2 Purd. Dig., 1208, 15 and 16.
109 Pa. 130First National Bank v. Higbee & Co. (1885)
1. A fund which the acceptor of an overdue draft deposits in the bank where the draft is payable, in his own name, but “to pay the draft,” may be withdrawn by him at any time prior to the bank’s receipt of the draft. Such appropriation of the fund “to pay the draft” is revocable by the depositor; and, if so withdrawn by him, the bank is not responsible to the drawers for having parted with the fund. 2. A. drew a draft on B. payable at a hank, which draft was accepted by the drawee. The draft was dishonored at maturity and returned to A. B. then sent his brother to the bank with a certain fund to apply on the draft. This fund was deposited to B’s credit, and a receipt given stating that it was “to pay A’s draft.” Afterwards B. withdrew the deposit, giving back the receipt. In an action of assumpsit brought by A. against the bank for the amount: Held, that plaintiff was not entitled to recover.
109 Pa. 133Appeal of Price (1885)
1. A. agreed in writing to sell B. certain lots. B. paid part oí the purchase money and assigned his contract to C. who held possession of the premises, but never paid the balance of purchase money. C. borrowed money of D., to whom he gave a bond and mortgage on other property owned by him. D. entered judgment on the bond and levied, inter alia, on the lots included in the contract. After the entry of this judgment, and years after all the purchase money was duo A., C. signed a confession of judgment to A. in an amicable action of ejectment, to be released on payment of a certain sum in ten days. At the end of the ten days A. filed the confessed judgment, and under a writ of hab. ftic. poss. possession was delivered by the sheriff to the attorney for the plaintiff therein. Subsequently, the sheriff in pursuance of a sale on aye. fa. issued on D.’s judgment, delivered a deed lo 1). for O.’s interest in tlie lots. D. filed a bill to compel A. to execute a deed for the lots to her, on payment of the balance of purchase money still due. The Master found that there was no collusion between the parties to the title, for the purpose of defrauding D : Held, that the bill should be dismissed. It was not A.’s duty, before taking the confession of judgment for the security of his purchase money, to search the record to see if a judgment creditor would be affected thereby; nor would it have been his duty to take care of D.’s judgment if he had known of it. D. should have protected herself by paying the purchase money and controlling the title. Held also, That in the absence of fraud in fact, the taking of the confession of judgment, and allowing the time given for payment to expire, before its entry on the docket was of no significance. 2. Forrester v. Hanaway, 1 Morris, 218, distinguished.
109 Pa. 138Commonwealth ex rel. Carman v. Durkin (1885)
Error to the Court of Common Pleas of Lachawanna county: Of January Term, 1885, No. 268. This was an action of debt, by the Commonwealth ex rel. C. Q. Carman against A. Durkin, administratrix of the estate of Thomas Durkin, deceased; A. M. Renshaw, C. M. Koon, J. G. Sanderson, B. H. Throop, E. L. Gardner, C. W. McKinney, and I. F. Fuller, administrator of the estate of W. P. Carling, deceased, upon the official bond given by Thomas Durkin to the city of Scranton, as treasurer of said city, the other de fendants being sureties on said bond. Plea, nil debet. At the suggestion of C. Q. Carman, an amendment was allowed changing the name of the plaintiff to the City of Scranton ex rel. C. Q. Carman. The facts of the case, as they appealed in a special verdict, were as follows:— In December, 1876, C. Q. Carman was appointed mercantile appraiser for the city of Scranton, and duly qualified fertile year 1877; he made an appraisement consisting of 609 in number of persons liable to mercantile appraisement, which he certified to the treasurer of the city, who received the fees upon said appraisement, amounting in the aggregate to $299.50, and paid over to the plaintiffi C. Q. ’Carman, the sum of twenty-five dollars, leaving a balance unpaid of $274.50. On the 16th day of December, 1876, the treasurer of said city executed his bond, which was approved on the 18th day of December, 1876, of which the following is a copy :— “ Know all men by these presents, that we, Thomas Durkin, A. M. Renshaw, C. M. Koon, Benjamin H. Throop, E. L. Gardner, J. Gardner Sanderson, C. W. McKinney, and William P. Carling, all of the city of Scranton, Pennsylvania, and Thomas B. Wall, of Tunckhannock, Wyoming county, Pennsylvania, are held and firmly bound unto the city of Scranton in the sum of one hundred thousand dollars, lawful money of the United States, to be paid to the said city of Scranton, her certain attorney, successors or assigns, to which payment well and truly to be made and done we do bind ourselves, our heirs, executors and each of us jointly, severally and firmly by these presents. Sealed with our seals, dated the 16th day of December, A. d. 1876. “ Whereas the said Thomas Durkin on the 15th day of February, A. D. 1876, was duly elected treasurer of said city of Scranton, and whereas the said Thomas Durkin by letter of attorney bearing date the 14th day of December, A. D. 1876, has appointed A. M. Renshaw as his deputy to do and perform the acts appertaining to said office of treasurer of the city of Scranton. “ Now, therefore, the condition of this obligation is such that if said Thomas Durkin so elected as aforesaid, and the said A. M. Renshaw shall well and faithfully execute the duties of the said office according to law, and shall pay over the moneys received by them as directed by the proper authorities, and at the end of their term shall settle up and pay over to the successor in said office the balance of the money which remains in their hands then this obligation to be void, else to be in full force and virtue.” “ Thomas Durkin, [seal] ” “A. M. Renshaw, [seal] ” “O. M. Koon, [seal] ” “ Benjamin H. Throop, [seal] ” “Thomas B. Wall, [seal] ” “ E. L. Gardner, [seal] ” “ J. Gardner Sanderson, [seal] ” “ C. W. McKinney, [seal] ” “ W. P. Carling, [seal] ” On the back of the bond was the following indorsement:— “Bond approved this 18th day of December, 1876.” Robert H. McKttne, Mayor, [seal]. The jury found the balance due and unpaid the said C. Q. Carman to be $274.50, and concluded that if upon the whole matter the court should be of opinion that the issue was proved for the plaintiff, they found for the plaintiff, assessing the damages at §274.50; but if the court should be of the opposite opinion then they found for the defendants; the verdict to be entered for such an amount on this bond, with the right to collect such amount in the suit as the court should order. The court (Hand, J.,) filed an opinion, inter alia, as follows :— “ The sole question raised by this special verdict is whether the defendants, being obligors and sureties on the official bond recited, are liable in this action brought on this bond for default of the city treasurer in not paying over to C. Q. Carman the amount of appraiser’s fees claimed by him. If this bond covers this part of the treasurer’s duties then they are liable; if it does not, then they are not liable. At the first blush the language of this bond would seem broad enough to cover the liability, for its condition is that “he shall well and faithfully execute the duties of the said office according to law, and 'shall pay over the moneys received by him as directed by the proper authorities,” etc. Also the city charter of the city of Scranton, Act April 28d, 1866 (P. L., 1040), section 11 provided for “ sureties for the faithful performance of their trusts ” on the part of the city treasurer. But we must bear in mind that this bond is given by the city treasurer as such — an official bond in his character as city treasurer solely. It is also true that the duties imposed upon him in regard to the appraisement and collection of mercantile taxes are in no sense a part of his duties as treasurer of the city of Scranton. The city of Scranton is no party to these duties, and is not concerned with regard to them. It is true that the laws of the Commonwealth have placed these duties upon the city treasurer, but they are duties which he is to perform with reference to the state and not to the city.. For these duties he is required to give an additional bond to the Commonwealth, and it is this fact which leads us to the conclusion that for these fees of the mercantile appraiser this bond to the city cannot be held. Under the Acts of Assembly, as we read them, the city treasurer was compelled to give bond to the Commonwealth to secure all moneys collected under the mercantile appraisement laws. Wo think this fact is settled by the Act of 15th April, 1828 (P. L. 491), and the Act of 7th April, 1830, section 7 (P. L. 390). “ The Act of 1828 provides ‘ that it shall be the duty of all the city and county treasurers thereafter,’.....‘to give bonds to the Commonwealth conditioned for the payment according to law of all moneys that shall be received by them for the use of the Commonwealth, and for the faithful discharge of all duties enjoined upon them by existing or future laws in which the Commonwealth is concerned: ’(P. D. 1827-28, P. L. 491, section 1.) And the law which made county treasurers’ bonds given to commissioners a security for moneys of the Commonwealth was repealed by the third section. Now if there were any doubt whether these duties of the treasurer in relation to the mercantile appraisement are duties ‘ enjoined upon him by existing or future laws in which the Commonwealth is concerned,’ that doubt is settled by the Act of 1830, section 10. This Act relates to the mercantile appraisement especially, and is one of the laws now in force. It provides ‘ that the aforesaid city and county treasurers previous to entering upon the duties enjoined upon them by this Act shall enter into bonds conditioned for the faithful performance of their trust to the Commonwealth according to the provisions of the Act of 15th April, 1828, relative to treasurers’ bonds,’ etc. It was part of the duties of the treasurer to receive the fee then due the constable for each name correctly returned and pay it out of the funds created by the Act. (See section 9.) “By the Act of 15th April, 1834, sections 33 and 34, county treasurers are required to give two bonds, one to the county and one to the Commonwealth. The condition of the bond to the Commonwealth is practically the same as that required by the Act of 1828 and 1830. The language is ‘ for the faithful discharge of all duties enjoined upon him by law in behalf of the Commonwealth and for the payment, according to law, of all moneys received by him for the use of the Commonwealth.’ (Purdon 306, pi. 9.) “ The charter of the city of Scranton in force at the time when this bond was given (Act 30th March, 1867, section 7, P. L. 632), provides for the mercantile appraiser of said city, and the same section provides for a bond to the Commonwealth for all moneys received by him for the use of the Commonwealth, as treasurers of counties are required to do. It also provides for the payment of appraisers’ fees. “ This places the treasurer of the city of Scranton as regards his bonds in the same category as treasurers of counties under the general laws of the state, and fixes the bond, as we con-elude that it is intended to cover the duties of treasurer in relation to appraisers’ fees as specifically the bond given to the Commonwealth, and not the bond given to the city of Scranton. “The authorities are clear that where a special bond is required for a special fund or purpose, general bondsmen are not liable: Commonwealth v. Toms, 9 ¥r., 408; Commonwealth v. Hilgert, 5 P. F. S., 236; State v. Corey, 16 Ohio St., 17; Supervisors v. Ehlers, 45 Wis., 281. “We must therefore conclude that these defendants under the facts found in this special verdict are not liable, and judgment must be entered on the special verdict in favor of the defendants......” Judgment was accordingly entered for defendants on the special verdict. Plaintiff thereupon toolc this writ, assigning for error the entering of this judgment. By the Act of April 16th, 1845 (P. L. 533), authorizing the appointment of an “ appraiser of mercantile taxes” by the Courts of Common Pleas of Allegheny and Philadelphia counties, it is made the duty of the treasurer of the proper city or county to receive and collect, together with the fees of the appraiser and his own fee, the sums to be paid for licenses. The Act of April 22d, 1846, extending this provision to the other counties in the state, directs that an account of the mileage being verified by the affidavit of the appraiser, it shall be paid by the treasurer of the county out of any state taxes in his hands, thus leaving the fees as they were before — to be paid by the county treasurer as such to the appraiser. The Act of March 13th, 1847, requiring the costs of collecting mercantile taxes to be paid out of the state treasury on the warrants of the Auditor General, and repealing so much of any law as requires the payment of these costs from the county treasurer, refers to the costs of suit, as provided for in the Act of March 4th, 1824 (8 Smith’s Laws, 199). The matter of collecting fees was therefore not touched upon. The collection and payment of these fees is no part of the treasurer’s duty to the state but to the city, and the bondsmen on his bond to the former cannot be liable, as he was responsible thereby only for “ moneys received by him for the use of the Commonwealth: ” Act of March 30th, 1867, section 7, P. L. 632. The Act of April 15th, 1828, is no longer in force, being consolidated into the Act of April 15th, 1834 (P. L. 542), which makes the condition of the bond for all duties enjoined by law in behalf of the Commonwealth, and for payment according to law of all moneys received for the use of the Commonwealth. Even if the former Aet is in force, the Commonwealth is not concerned in the collection and payment of the fees, as has been already shown. Under the Act of 1830 the treasurer did not receive the constable’s fees, but merely paid them out of the state funds. This provision is repealed by the Act of 1845, under which the appraiser’s fees are paid by the vendor of merchandise to the treasurer of the city or county for the appraiser and not for the state, which is not concerned in the matter.
109 Pa. 145May v. Merchants & Mechanics Bank (1885)
Error to the Court of Common Pleas of Lackawanna county: Of January Term 1885, No. 277. Attachment execution sur judgment, issued by the Merchants and Mechanics Bank of Scranton against M. D. May, defendant, and the Third National Bank of Scranton, garnishee. Plea of the defendant, discharge in bankruptcy. The facts, as they appeared on the trial, before Hand, J., were as follows: On February 9th, 1877, the defendant gave to the Merchants and Mechanics Bank a promissory note containing a confession of judgment, to the following effect:— $1,080. Scranton, Pa., Feb. 9th, 1877. Ten days after date I promise to pay to the Merchants and Mechanics Bank, or bearer, the sum of ten hundred thirty dollars with interest, without defalcation or stay of execution ; and do hereby confess judgment for the said sum with interest, costs of suit, and with ten per cent, additional as attorney’s commissions; and with a release of all errors, waiving the right of appeal and waiving inquisition on real estate, and confess condemnation on real estate, and do hereby further waive all rights under the exemption laws of the Commonwealth of Pennsylvania, and all bankrupt laws of the United States, which are now in force or that may be hereafter in force; and do hereby agree that this note shall be negotiable •and subject to same rules governing commercial paper, without equities as if it contained no confession of judgment. M. D. May. On the following day judgment was entered on this note in the Common Pleas of Luzerne county, of which, after the division of that county, an exemplified copy was filed on January 2d, 1879, in the Common Pleas of Lackawanna county, and entered to No. 738, February Term, 1879. On August 26th, 1878, the defendant became a bankrupt and, after due proceedings, on June 18th, 1883, received his discharge in bankruptcy from the United States District Court for the Western District of Pennsylvania by which he was “forever discharged from all debts and claims, made provable against his estate, and which existed on the twenty-sixth day of August, A. D. 1878, on which day the petition for adjudication was filed by him ; excepting such debts, if any, as are by law excepted from the operation of a discharge in bankruptcy.” On May oth, 1882, while the bankruptcy proceedings were ponding, the plaintiff in' the above judgment issued this attachment execution thereon, summoning the Third National Bank of Scranton as garnishee. The plaintiff made no objection whatever to the granting of the discharge in bankruptcy, which discharge the defendant pleaded on March 1st. 1884. The court charged as follows: “ The question in this case is raised solely between the plaintiff and the defendant, M. D. May. The defendant is obliged to plead bankruptcy in order to have the benefit of it. [We consider the agreement made in this ease in the note as a covenant not to enter the plea of bankruptcy as regards this note, and that such a covenant is good as between the parties.] We do not consider that this affects in any way the principles of the bankrupt law nor the creditors of M. D. May, who are affected by the bankrupt law. It is possible that such a waiver as this may exclude the note from any participation in the effects of the bankrupt as administered under the laws of the United States. [We do not consider it excludes him from the benefit of the waiver made at the time it was made, and if it is a covenant he could not enter the plea of bankruptcy in a proceeding upon this note. We therefore hold that the plaintiff is entitled to recover in this case, and direct a verdict in favor of the plaintiff. You will render your verdict in favor of the plaintiff for the balance due upon this note].” A verdict was accordingly given for the plaintiff in the sum of $1,080.89, the full amount due on the original judgment, less $21.17 usury, stricken out by the Common Pleas of Luzerne county, and $189.59, credited on the judgment in Lackawanna county from a sheriff’s sale of defendant’s real estate. Judgment was entered accordingly. Defendant thereupon took this writ of error, assigning for error the portions of the charge of the court included in brackets. A judgment creditor of a bankrupt may retain his lien against the debtor’s estate, but the latter on receiving his discharge is released from all personal liability from claims which were or might have been proven against the estate : Rev. St. U. S., secs. 5075, 5119 ; Tinstman v. Flenniken, 6 W. N. 0., 29. The effect of a discharge is to extinguish all debts, those created by law, judgments as well as others. The parties cannot agree that such a debt is to be above and beyond the law. The only distinction between a waiver of rights subsequently acquired, as here, and a promise to disregard the rights made after they have been acquired is one of time. Yet a promise made subsequent to a discharge in bankruptcy does not revive the debt, but is alone a new cause of action: Bolton v. King, 9 Out., 78; Field’s Estate, 2 Rawle, 851; Reeside v. Hadden. 2 Jones, 243 ; Ott v. Perry, 1 Phila., 77. To support such a waiver is against public policy and is to allow every debtor in effect to repeal the Bankrupt Act. The plaintiff in error has waived his right to an appeal or a writ of error. A writ taken out contrary to such an agreement should be quashed: Wright v. Nutt, 1 T. R., 388; Galbreath v. Colt, 4 Yeates, 551; Commonwealth v. Johnson et al., 6 Barr, 136; Watson et al. v. Wetter et al., 10 Nor., 385. The issue here being on the clause of sci. fa. in the attachment execution, only such pleas may be taken advantage of as might have been pleaded in a sci. fa. post annum et diem. A discharge in bankruptcy cannot be pleaded in bar to a sci. fa.: Ogilsby v. Lee, 7 W. & S., 445; Wise’s. Appeal, 3 Out., 193; Adams’s Appeal, 5 Out. 471. Any person for a fair consideration may waive a personal privilege or private right. A discharge in bankruptcy is such a privilege. It must be pleaded to an action. The plaintiff in error has here waived it expressly: Jenks v. Opp, 12 Nat. Bankruptcy Register, 19; Wise’s Appeal, supra. It is not opposed to public policy to admit the validity of this waiver. The public at large are not injured by an agreement beyond a contingency to pay a debt, nor are the particular creditors, as their dividend is increased thereby.
109 Pa. 150Griffin's Appeal (1885)
1. Where there is no dedication of land to public use by the owner, use of the same by the public jointly with the owner and by his sufferance, does not establish a right in the public by dedication, no matter how long such joint use is continued. Dedication is a matter of intention, ana when clearly proved, is as complete in one day as in twenty-one years. 2. In absence of opposing proof, long continued use by the public is evidence of an intent to dedicate, but it is not conclusive, and always yields to satisfactory contrary proof. 3. Where the owner of land, bordering on a public highway, sets his fence back from the highway for his own convenience, and uses the intervening space until his death, for private purposes, a bill for an injunction will not lie, by the municipal authorities, to restrain a subsequent owner of said property, fifteen years after the death of the former owner, from setting back the fence, and again including said intervening space within the same. 4. The testimony in this case held to warrant a finding of the above state of facts. 6. Semble. That in eases where the court below reversos a Master upon findings of fact, without reviewing the testimony, an opinion should be filed pointing out the errors of the Master in his treatment of the facts.
109 Pa. 157Susquehanna Mutual Fire Insurance v. Cusick (1885)
Error to the Court of Common Pleas of Laehawanna county: Of January Term 1885, No. 290. Debt, on a policy of insurance, by Mary Cusick against the Susquehanna Mutual Fire Insurance Company of Harrisburg. Pleas, nil debet, payment, set-off, with leave. At the trial, before Handley, P. J., the following facts appeared: Plaintiff on August 3d, 1876, made application to the defendant through its agent, Wright Wells, for insurance on certain property in the town of Scranton. The application embraced a dwelling house 18x24 feet, with wash-house attached 8x12. There was another building attached 20x21 feet, which, by a mistake of the agent, was not included in the application. The plaintiff, an ignorant woman, who could read print only, and was unable to write, set her mark to the application. It did not appear from the evidence whether or not the application was read over to her. The interrogatories on the back of the application were answered in the handwriting of Wells; also a diagram of the buildings made by him was indorsed on the application, omitting the aforesaid material portion of the structure. The policy was issued for “ two-story frame dwelling house 18x24 feet with wash-house 8x12 feet one-story attached,” and contained, inter alia, the following clause:— “ 1. The application, survey, plan or description of the property herein insured and referred to in this policy, shall be considered a part of this contract, and a warranty by the insured ; and any false representation by the assured of the condition, situation, or occupancy of the property, or any omission to make known every fact material to the risk, or an. over-valuation, or any misrepresentation whatever, either in a written application or otherwise :..... then, a,nd in every such case, this policy shall be void.” “ 12. It is expressly understood and agreed that the person or persons, if any other than the assured, who have procured this insurance to be taken by this company, shall be deemed the agent or agents of the assured, and not of this company, in any transactions relating to this insurance, and if the premium on this policy shall be paid to any person or persons other than the duly appointed or authorized agent of this company, such payment shall be at the sole risk of the assured.” The policy also contained a condition that notice of loss should at once be given, and a particular account thereof within thirty days. On September 16th, 1876, the premises were destroyed by fire. Notice was sent to the company, and in a day or two Hunsinger, its secretary, came to Scranton, saw the plaintiff, told her that the proofs of loss received were not satisfactory, and offered her a settlement for $580, which she refused to accept unless she could take the paper to her counsel. To this Hunsinger would not consent. The testimony at this point was conflicting, plaintiff stating that Hunsinger did not ask any additional proofs of loss, defendant’s testimony being that Hunsinger told Mrs. Cusick that if she would accept his settlement he would make out her proofs for her; if she would not, she must make them out for herself. Plaintiff finally brought suit, claiming only for that portion of the premises actually included in the policy. The plaintiff presented the following point:— 1. As the property insured under this application and policy was in fact a single thing, and the loss was a total one, the proofs of loss offered in evidence were a substantial compliance with the requirements contained in the policy in this case. Answer. This point is affirmed. Exception. The defendant offered the following points:— 1. That the application, survejq plan, and description of the property insured, and referred to by the policy in evidence, are a part of the contract between the parties, and a warranty by Mrs. Cusick, the insured; and any false representations made by the assured of the condition or situation of the property, or any omission to make known every fact material to the risk, or any misrepresentation whatever, either in the written application or otherwise, renders the policy void. Affirmed. 2. That the statements and answers of Mrs. Cusiek in the application in answer to the interrogatories put relative to the risk are a warranty on the part of Mrs. Cusiek, and the statement and answer of Mrs. Cusick in regard to the size of the building are a warranty that the building was of the size given in such statement and answer; and it appearing from the undisputed testimony of the plaintiff and her witnesses that the building in question was almost, if not twice, as large as stated in the application and policy the plaintiff cannot recover. A. If the evidence shows that these statements and answers are the statements and answers of Mrs. Cusiek, then we affirm this point; but if you find from the evidence that Mrs. Cusick did not state the size of the’ building, nor was the size as written by the agent in the application read to her, or put in under her direction, or her attention called to it, then we cannot affirm this point. 3. That the defendant company are not liable for any loss of any property not insured by the policy, and are not liable for the loss on that part of the building described by the witnesses as being 20x21-|- feet. A. That you will remember is what is known as No. 1. This point we affirm, and say to you in addition that she now concedes through her counsel that she does not claim for this property. The loss is her loss, and she must stand that misfortune. 4. That the contract between the parties made it the duty of Mrs. Cusick on the happening of the fire forthwith to give notice of said loss to the secretary of the company, and within thirty days after said loss to deliver to said secretary a particular account of such loss, sigued and sworn to by her, stating whether any and what other insurance had been made by her upon the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property and the interest therein, the incumbrance on the same, for what purpose and by whom the building insured, and the several parts thereof were used at the time of the loss, and when and how the fire originated, and there being no evidence of such proof or account of such loss, the verdict should be for the defendant. A. This point as a naked legal proposition we affirm, but we say to you, the company may waive this portion of her contract; and as I have already said in my general charge, if you find from the interview that took place between the secretary of the company and her, that her evidence of that interview is the correct history of it, then you-may assume there was a waiver in this case; if, on the other hand, you find that hers is not the correct history of what took place, but that the secretary’s is, then we say to you there was no waiver. 5. That the use of general terms or anything less than a distinct specific agreement, clearly expressed and indorsed on the policy in question, cannot be construed as a waiver of any printed or written condition or restriction therein, and there is no evidence ill this case which can be construed as a waiver of any printed or written condition or restriction of the policy produced by the plaintiff. A. This point we affirm, but say to you that the company may waive any and all conditions in the policy that are placed therein for the benefit of such company. We also refer you to what we have already said on the fourth point. 6. That even if the jury believe that Mr. Wells was the agent of the company, and inspected and examined the building in question, and filled up the application, it appearing from the evidence in the case that Mrs. Cusick signed the application and accepted the policy issued thereon, Mr. Wells is to be regarded with respect to the application as the agent of Mrs. Cusick and not of the company; and the company is at liberty to set up the falsehood of statements or answers in the application as to the size, condition, or use of the insured building as a defence. A. This point we affirm, provided you find from all the evidence that Mrs. Cusick was informed by the agent of the company of the contents of this application. If, however, you fail to find that fact in the affirmative, then we cannot affirm this point. 7. That the verdict should be for the defendant. A. This point, gentlemen of the jury, we will neither affirm nor deny ; we will leave it with you under the evidence and the law as stated by the court, to say whether your verdict shall be for the plaintiff or for the defendant. The court charged the jury, inter alia, as follows: — “If this application and the statements and representations made therein, were made out by Mrs. Cusick in her own handwriting, or made out at her dictation, and the evidence showed that they were dictated by her, that they were carefully read over to her, and that she agreed to each and every one of them as hers in every particular, then under the conditions of the policy they are made warranties, and miless the evidence shows they are absolutely true, of course they go for nothing, and she could not recover. Now is there any evidence in this case showing that the contents of this paper were made known to this lady by the agent of this company before she attached her mark to it? If there is, it is for you to ascertain what bearing it has upon the case. For some reason both parties seem to have been very careful not to ask the question whether this paper was read over to this ladjr; whether she knew of its contents before she executed it or not; so that so far as the history of this case is now presented, that is one of the blank points in this case. You have no evidence that she knew of the contents of this paper. Well if she did not know of the contents of this paper, then of course she is not bound by it; if the agent of the company made any mistake in describing the ground plan or size of her property, or placed therein any statements not made by her, then of course she is not bound by that. The law never will permit any persons to be bound by a document about which they know nothing. “Now the other question is, whether this lady made any misrepresentation about the size of this property. You have the evidence that she is illiterate, a person that can neither read nor write; knows very little about feet or inches. We have no evidence here that she at any time ever said to this, agent that this house is 18x24, ‘or any other size whatever. The agent himself tells you that he made a diagram and put it down on the application, but there is no evidence to show that she gave that particular figure. Now if she did not, and it was the agent who obtained the size, and jmu will bear in mind that he admits candidly that he made a mistake, a mistake against the interests of this lady, then of course on that point you will have no hesitation in deciding in her favor...... “If the secretary of this company, when he appeared upon the ground, knowing that this property was destroyed, and totally destroyed, put the condition in that he was then and there ready to settle, and offered to pay the sum of money, and was silent and remained silent about the proof of loss, then of course he did not come there to demand additional proof of loss, but came there to compromise the case and settle for a certain sum of money, and you may assume, if you believe that to be the fact, that there was a waiver of a particular proof of loss as called for by the policy...... “Now, gentlemen of the jury, as I have said before to you, if you find there was a waiver of the preliminary proofs required by the policy, then you virtually say you find in favor of the plaintiff. The question now is, what shall be your finding?” Verdict and judgment for plaintiff. The defendant thereupon took this writ assigning for error the affirmance of the plaintiff’s point, the answers to the defendant’s points,'and the portions of the charge quoted. The court virtually told the jury that defendant must show that plaintiff knew the contents of the application. This is erroneons: Weller’s Appeal, 7 Out., 594. Representations in the application are warranties. If incorrect it matters not whether by mistake or otherwise: Ins. Co. v. Huntzinger, 2 Out., 41. Cooper v. Ins. Co., 14 Wr., 299. Wells was the agent of Mary Cusick and not of the company: Ins. Co. v. Fromm, 4 Out., 847; Ins. Co. v. Arthur, 6 Casey, 815; Ins. Co. v. McAnerney, 6 Out., 885. There is no evidence of any waiver of the condition requiring proofs of loss. The waiver should be in the manner prescribed by the policy: Ins. Co. v. Conover, 2 Out., 884. Wells was the agent of the company: Rowley v. Ins. Co., 86 N. Y., 550; Ins. Co. v. Bruner, 11 Harris, 50; Mentz v. his. Co., 29 P. F. S„ 478; Eilenberger v. Ins. Co., 8 Norris, 464 ; Wood on Fire Ins., 277. Where a loss is total, and the company has immediate notice, no further notice nor technical proofs of loss are necessary: Ins. Co. v. Dougherty, 6 Out., 568; Ins. Co. v. Moyer, 1 Out., 441. If the company were dissatisfied with the proofs they should have pointed out the defects: Wood on Fire Ins., 719, 721, 722.
109 Pa. 165Commonwealth ex rel. Reeder v. Pattison (1885)
1. Tlie provision of § 16 of the schedule to the new Constitution, that “ after the expiration of the term of any president judge of any Court of Common Pleas, in commission at the adoption of this Constitution, the judge of such court, learned in the law and oldest in commission, shall be the president judge thereof,” applies not only to judges whose commissions were in force at the time of the adoption of the said Constitution, but also to all judges who maybe subsequently commissioned. It is of permanent and not of temporary force. 2. In 1874 and subsequently to the adoption of the new Constitution A. was commissioned as president judge of the Third Judicial District. In 1881 an Act of Assembly was passed providing for the election of an “ additional law judge” of said district, to be elected “ in the manner prescribed by law for the election of president judge, and “to hold his ' office for the same term as the president judge.” B. was elected and commissioned under said Act as “ additional law judge.” Subsequently on the expiration of A.’s term C. was elected as his successor. Held, that B. and not C, was entitled to the commission of president judge of said district.
109 Pa. 172Wonder v. Phelps (1885)
1. In an action of ejectment it is the right and duty of a defendant to set up an outstanding title in his wife, in order to protect her possession, 2. A. agreed to sell a lot to B., who assigned his interest in the contract to C., a married woman. D., her husband, joining with her, C. afterwards assigned her interest in the contract to Á., but the certificate of acknowledgment did not show that she was examined separate and apart from her husband. C., D., and E., their son, remained in possession. A. made a new contract for the sale of the land to E. E. failing to pay the instalments of the purchase money, ejectment was brought against I), and E., and a conditional judgment was entered against the defendants: Held, that this was error, because C.’s assignment of her interest was void on account of the defect in the certificate of acknowledgment; and the judgment disregarded tier title which was properly interposed by hoi- husband, tbe defendant.
109 Pa. 177Armstrong v. Levan (1885)
1. Yfhore within six years after the right to an action of tort accrues a patrol promise is made to pay, if suit be not brought, such promise will operate by way of estoppel to toll the Statute of Limitations. 2. In such ease the Statute will run from the date of such promise. 3. A. obtained a judgment against B., which C., a prothonotary, incorrectly indexed. B’s real estate was sold at sheriffs sale, and the Court of Common Pleas, in distributing the proceeds of such sale, postponed A.’s judgment to other judgments, which were subsequently entered and correctly indexed. O.,'within six years after his mistake in indexing, asked A. not to sue and promised her that if she would not sue he, C., would make good any loss which A. might suffer. On C.’s failure to do so, A. brought suit against him more than six years after the mistake in indexing was made, bat within six years after the said promise. Held, that the Statute of Limitations was no bar to the action. Held, further, that the correctness of the award of the proceeds of B’s real estate to .the junior judgment creditors could not bo attacked in this collateral proceeding.
109 Pa. 180Geier v. Shade (1885)
363. Assumpsit, by Ignatius Shade against Osmund Geier and Christoph Becker, on a promissory note for $300, dated May 26th, 1883, given by the defendants to the plaintiff, payable six months after date.
109 Pa. 183Mitchell v. Zimmerman (1885)
898. This was an action of replevin by William Zimmerman against David Mitchell and Agnes Mitchell to recover possession of a horse, which it was alleged the defendants had wrongfully removed from plaintiff’s stable. The facts of the case, with the rulings of the court below, which form thé subject of the several assignments of error, are fully recited in the opinion of the Supreme Court. Verdict for the plaintiff and judgment thereon.
109 Pa. 188Brooke's Appeal (1885)
Appeal from the Court of Common Pleas of Berks county: Of January Term 1885, No. 94. Appeal of John B. Brooke from a decree of the said court. Bill in equity, between Kate B. Hale and Louisa Yon Bonhorst, complainants, and John B. Brooke, defendant, to compel the defendant to execute a trust in favor of the plaintiffs, alleged to have been created by the defendant’s mother in her lifetime and accepted by the defendant. The defendant filed an answer, and the cause was referred to Richmond L. Jones, Esq., as Master and examiner, who reported the facts to be as follows : Mrs. Catharine E. Brooke, a widow, died intestate in the city of Reading, November 2d, 1871, leaving an estate worth about 152,000. John B. Brooke, the defendant, was her only child, and upon her death took possession of her estate, without letters of administration, and continues to hold and enjoy the same. The plaintiffs, Kate B. Hale and Louisa Yon Bonhorst, are the grandchildren of Dr. Diller Luther and his late wife, Mrs. Amelia H. Luther, who was the sister of Mrs. Catliarine E. Brooke, and died December 14th, 1872. Kate B. Hale and Louisa Von Bonhorst, the plaintiffs, became of age respectively, February 12th, 1878, and May 4th, 1880. On the afternoon of the day preceding the death of Mrs. Brooke, she had a conversation with her son, the defendant, in which, after stating that this was probably her last illness, she said to him : “ I wish you would give Aunt Luther $2,000.” To which he answered: “ I will, mother,” and after a moment’s reflection added: “ I think it would be best to give Aunt Luther the interest of the $2,000, and at her death the principal to the children ” (meaning the plaintiffs). She replied: “Very well.” She then said : “I wish you would divide my chain between Helen (defendant’s daughter), and Kate (one of the plaintiffs), and give one half to each, and the watch to Kate.” He answered: “No, mother, I will not do so. I want Helen, as your grandchild, to have the watch and chain. I will buy a watch and chain for Kate.” To which she replied: “Very well.” The defendant then made a memorandum, of the result or conclusion of the conversation, which he signed and submitted to his mother, and asked her if it was right, and she said “ Yes.” The memorandum was as follows : “ Memorandum:. “In a conversation with mother this afternoon (November 1st, 1871), she desired me in the event of her death to pay to Aunt Luther annually the interest of two thousand ($2,000) dollars. At her death the principal is to be equally divided and one half settled upon each of her grand-nieces, Katie and Lulie. I to be the trustee of this sum until they become of age. She also wishes me to purchase for Kate on her 16th birthday a handsome gold watch and chain. Helen is to have the watch and chain she wears. “ (Signed,) John B. Brooke.” The next day (Mrs. Brooke being dead), the defendant said to Kate (one of the plaintiffs), that his mother had remembered her, that a gold watch was to be given her on her 16th birthday, and that the principal sum of $2,000 should be paid to her and her sister when they came of age. The defendant soon afterwards related to Dr. Differ Luther (the grandfather of the plaintiffs, with whom they lived), the conversation which had taken place between his (the defendant’s) mother and himself, and delivered to Dr. Luther or to his wife, Mrs. Amelia II. Luther, the memorandum he had made of it at the time. The defendant afterwards delivered the gold watch and chain, purchased pursuant to the conversation aforesaid, to Kate, and paid one year’s interest on the sum of $2,000 to Mrs. Luther, and after her death paid one year’s interest on said sum to the guardian of the plaintiffs. Since then no payments have been made. The Master reported, inter alia, as follows : “ There is no difficulty as to the material facts of this case. Dr. John B. Brooke, the defendant, is the only witness of the conversation, between his mother and himself, on the day before her death, as to the provision to be made for the plaintiffs, and this claim therefore depends altogether upon the facts furnished by him...... “ The defendant maintains that the wishes of Mrs. Brooke, then expressed, were not in contemplation of the disposition of her own estate, which, in the absence of any action on her part, would presently descend by operation of law to him with whom the conversation was held, but were only kindly requests that he should, ont of his own estate and at his convenience, make the provision she indicated. This view was also strongly urged by the learned counsel for the defendant, who argued, that the love of the mother was so intense that she wanted the beneficiaries to feel that they were enjojdng, not her bounty, but the bounty of her son ; but I cannot find in the evidence of the conversation, nor in the surrounding circumstances or conditions, an}*- warrant for such an inference or conclusion. On the contrar3r, the conclusion is irresistible that the subject of the conversation was the disposition of the estate of Mrs. Brooke, and not of the prospective bounty of her son, and that it was so understood at the time by both parties. This is clearly indicated, on the one part, by the consciousness of Mrs. Brooke of impending death, and of the consequent release of her grasp upon her worldly goods, which were about to pass (she forbearing to act) by operation of law under the control of her son, to whom the wish was expressed; by the specific directions given in immediate connection with the $2,000, concerning the disposition of her watch and chain, and by her acquiescence in his proposal that he should hold the money in trust until the plaintiffs became of age. And, on the other part, by the promise of the defendant to his mother that he would carry out her wish; by his suggestions of detail as to the manner and method in which it should be done ; by his reduction of the result or understanding arrived at in the conversation to writing, and the submission of it to his mother for her approval, thus acknowledging her as a party; by his declaration to Kate (one of the plaintiffs), on the very day of the death that his mother had “ remembered her; ” by his delivery of the memorandum into the custody of the beneficiaries as evidence of his mother’s wishes charged upon him ; and by his partial performance in the purchase and delivery of the watch and chain, and the payment of interest on the sum of $2,000 for two years.” After citing Strickland v. Aldridge, 9 Vesey, 519; McCormick v. Grogan, L. K. 4 H. L., 97; Barrow v. Greenough, 8 Vesey, 152; Hoge v. Hoge, 1 Watts, 214; Reech v. Kenuegal, 1 Vesey, 123; Gaullaher v. Gaullaher, 5 Watts, 200; Schultz's Appeal, 30 P. F. S., 405; and Parker v. Urie’s Ex’rs, 9 Harris, 309, the Master concluded his report as follows : “ Under the law, therefore, as applied to the facts of this case, I am of the opinion that Dr. John B. Brooke, the defendant, received from the estate of Mrs. Catharine E, Brooke, deceased, the sum of $2,000, in trust for the uses above specified, and that he now holds the sum of $1,000 with interest from November 2d, 1873, in trust for Mrs. Kate B. Hale, one of the plaintiffs, and the sum of $1,000 with interest from November 2d, 1873, in trust for Miss Louisa Von Bonhorst, one of the plaintiffs ; that said sums and the interest thereon are due and payable to the said plaintiffs respectively, and I hereby recommend that a decree be made by the court ordering and directing him, the said defendant, to pay the same forthwith, and in addition thereto to pay the sum of $100, being the Master’s fee, and to pay the other costs of this proceeding.” Exceptions filed to this report by the defendant were dismissed by the court and a decree was entered in accordance with the recommendation of the Master. The defendant thereupon took this appeal, assigning for error the action of the court in dismissing his exceptions, in confirming the Master’s report and in entering the decree as above. When the owner of an estate expresses a desire that after his death the heir-atlaw give a sum of money to another person without a suggestion that the money shall come from the owner’s estate, and the heir-at-law promises to comply with the request, in the absence of any intimation that the estate was suffered to descend because of such promise, such promise cannot be enforced by the person to whom the money was requested to be paid. In this case Mrs. Brooke meant the bounty to proceed from her son. It was not a case in which she intended to make provision out of her own estate for the appellees. In order to establish a trust of the nature claimed in this case there must be clearly proved actual, persona] fraud of the party to be charged : Wallgrave v. Tebbs, 2 K. & J., 318; Russell v. Jackson, 10 Hare, 204 ; Dowd. v. Tucker, 41 Conn., 197 ; Robertson v. Robertson, 9 Watts, 36. There was no fraud on the part of John B. Brooke. The mere fact that he inherited his mother’s estate is not a con ■ sideration unless he secured that inheritance by his promise. His conduct shows the utmost frankness and candor. There was clearly no trust created by Mrs. Brooke. A trust arises where property has been conferred upon one person and accepted by him for the benefit of another. An excellent definition, approved by Perry, is : “A trust is in the nature of a disposition by which the proprietor transfers to another the property of the subject intrusted, not that it should remain with him, but that it should be applied to certain uses for the behoof of a third party.” But Mrs. Brooke made no transfer of any property; she designated no fund out of which the $2,000 should be paid. A day after the conversation with her son she died, and the intestate laws of the Commonwealth cast upon him the whole estate absolutely; he took nothing by any act or deed of his mother, and in no legal sense was she the settlor of any trust. The promise made by the appellee to his mother was without consideration. It was nudum pactum, and cannot be enforced: Long’s Appeal, 5 Norris, 196. The plaintiffs are entitled to relief in equity upon the facts of this case on three distinct grounds : (1) Legal fraud on the part of Dr. Brooke toward Mrs. Brooke in permitting her to die in the faith that her provision would be carried out, and in thus diverting her mind from establishing it in any more formal way. (2) A fully completed and executed trust, created by Mrs. Brooke, accepted by Dr. Brooke, proved in writing according to the Statute of Frauds,’ over the signature of the person to be bound, and rendered irrevocable by the death of the donor : or created by Dr. Brooke in the memorandum and interviews in which he constituted himself a trustee. (3) A ratification and recognition by Dr. Brooke of his obligation after the death of Mrs. Brooke, evidenced by his communicating the arrangement to the beneficiaries on several distinct occasions, and by continuing to make payments in pursuance of it.
109 Pa. 193Philadelphia & Reading Railroad v. Obert (1885)
Error to the Court of Common Pleas of Berks county: Of January Term 1885, No. 115. This was a proceeding under the general railroad law by Francis J. Obert, plaintiff, against the Philadelphia & Reading Railroad Company, defendant, to obtain an assessment of damages to the plaintiff for a strip of land in the city of Reading, taken by the defendant for an additional track. The viewers filed a report estimating Obert’s damages at $7,266, upon which report judgment was entered. By agreement of counsel the case was then put on the trial list without further pleadings, Obert to take the affirmative of the issue, which was whether the title to the strip was in the plaintiff or the defendant, the same being claimed by each. On the trial, before Sassaman, J., both parties claimed, through one Henry Hahs, who owned the land in the year 1835, at the time of the original location of the defendant’s road. On August 11th, 1835, Hahs made a deed to the defendants for “ all that certain piece or parcel of land, situate in the borough of Reading, comprehending and being the land on which the' said Philadelphia and Reading Railroad is located and about being constructed on and through the lob of land of the said Henry Hahs.” The land east of the railroad was, by deed of July 12th, 1839, conveyed by Hahs to Muhlenberg, the deed describing the western line of the land conveyed as “ along the eastern bank of the railroad, south 14| degrees west, 15J perches.” The description in this deed began “at a post in a line of South street; ” but the location of this point was a matter of dispute between the plaintiff and the defendants. By deed of May 31st, 1854, Muhlenberg conveyed said land to Tibbets, who in turn made a deed to the plaintiff. The last two deeds described the land as follows : “ A lob or piece of ground in the city of Reading, bounded and contained in the following limits, viz.: On the east by the south extension of Nintli street, on the south by South street, and on the west and northward by the Philadelphia & Reading Railroad, and the branch railroad leading to the Cotton Mill.” The defendants claimed that the original location of their road included the strip now taken for their additional track, and was therefore conveyed to them by Hahs’ deed in 1835; while plaintiff contended that said strip was not included in the original location of the railroad, and therefore not conveyed to defendants by Hahs’ deed. No draft of the original location of the defendant’s road was in evidence. By their charter they were authorized “ to enter in and upon and occupy all lands on which the said railroad ..... may be located ..... provided that the said railroad shall not, except in deep cuts and fillings or in points selected for depots.....exceed four rods in width.” The defendants claimed under this clause that the deed from Hahs to them must be construed as passing to them the statutory width of (56 feet, which would include the strip in dispute. By the deed from Hahs to the defendant company it was provided that Hahs should “ make and keep a fence on his residue of adjoining land along said railroad at his own costs and charges.” The plaintiff introduced evidence to show Hahs had erected a fence in pursuance of this clause along the boundary of 1ns land and the railroad, which was there built on an embankment, said fence being a few feet from the foot of the embankment; that the defendants gradually filled in the space between their bank and. tbe fence to a level with the road bed; that plaintiff at the same time filled in on his side of the fence to the same level, gradually raising the fence above its original line, as required by the new grade ; that this fence still existed in 1880 when the defendants removed it and built their additional track on plaintiff's side of it. Plaintiff contended that this fence having been built with the acquiescence of both parties at or about the timo oí the original location of defendants’ road, and having remained on the same line for more than forty years, showed that the original location of the road excluded the strip now claimed by the defendants. Plaintiff bad extensive boiler shops on bis land, and used the space between his shops and the railroad, including that taken for tbe additional track for the purposes of bis business; he claimed, inter alia, by way of damages, that before the additional track was built, the space taken for tbe same was used by him in the construction of long boilers which extended over this space, and that the want of said space caused him serious inconvenience and damage in the manufacture of such boilers. Plaintiff offered to ask a witness : “ What is the difference between a fair market value of your boiler works immediately before the appropriation of the land in question by the railroad company and immediately thereafter as affected by the said appropriation ? ” Counsel for defendant objects, because, under the evidence offered by the plaintiff, the plaintiff has failed to establish a title to the property which was occupied by the railroad, and under the evidence in this ease, and the statutes of the Commonwealth, the title to said property for railroad purposes is shown to be in the Philadelphia & Reading Railroad Company. ” The Court. It may be that eventual!}* in this case the legal doctrines outlined by the exceptions to this offer must be maintained as the law, but for the purposes of this trial the objections are overruled, the offer admitted, and a bill sealed for defendant.” (First assignment of error.) Plaintiff submitted, inter alia, the following points: 2. “If the jury from the covenant in the said deed on the part of Hahs ‘ to make and keep up a fence on his residue adjoining land along said railroad, at his own cost and charges,’ and from the testimony in the case tending to show that a fence was put up along the said railroad shortly after the completion thereof and while Hahs was still the owner of the residue of the land, and from the other testimony in the case should find that the railroad company and Hahs by an arrangement or agreement between themselves fixed the fence as the limit of the land which the railroad company should take under the said deed, the railroad company was bound by such arrangement or agreement, and all the land beyond the fence remained to Hahs, his heirs and assigns, and if the jury should believe that the fence which at the time of the appropriation of the tract of land in question existed between the railroad and Obert’s boiler works stood upon the line so fixed, then under the said conveyance from Hahs the railroad company could appropriate no land beyond the fence without rendering itself liable to compensate the owner therefor.” Ans. “If the jury should find from the evidence in the cause that there was such an arrangement, then the point is correct as matter of law.” (Sixth assignment of error.) 3. “ When the owner of land conveys part of it to another, and there is a covenant in the deed between the parties thereto that the grantor shall make and keep a fence on his residue adjoining land along the line of the property granted at his own cost and charges, and pursuant to the said covenant a fence is erected and maintained by tbe grantor and his assigns for more than forty years, a presumption arises that the said fence marks the division line between the two owners, and tbe fact of the grantee being a corporation does not alter the ease, for corporations in their contracts are placed upon the same footing with natural persons, open to the same implications and receiving the benefit of the same presumptions.” Ans. “ As abstract matter of law, tbe principle cited as law is correct. This would be modified in case of a transfer by deed for a public use, such as a public highway, when tbe right to tbe land would be limited only by the use contemplated.” (Seventh assignment of error.) 4. “ There is no evidence in the ease of a purchase by the railroad company of the land whereon their branch road running from the main track through Obert’s property to the Cotton Mill is constructed. Nor does it appear that the said company had by law vested in it tbe power to appropriate property for tbe construction of such a branch road prior to the year 18G4, and the rights which would by lapse of time accrue to the company to maintain the said branch road would not extend beyond the use of the said road and the ground whereon it is located, in such manner and to such extent as it had been used during tbe period of time tbe lapse of which gives them the right to maintain such branch road.” Ans. “Affirmed, but there is no controversy here about it.” (Fourteenth assignment of error.) 5. “In the absence of a purchase and in the absence of any authority vested in the company by law to take the property of private individuals for tbe purpose of constructing a branch road, the company cannot claim, any rights upon the land lying adjacent to the said branch road excepting such as they have acquired by long user, and only to the extent of such use?;.” Ans. “Upon the facts contemplated herein, the assertion of law is correct.” (Fifteenth assignment o£ error.) 6. “If the jury believe that the railroad company originally took and received thirty-three feet of ground to the east of their railroad, measuring from the centre of their main track, neither under the deed of Hahs nor under the right of eminent domain could they in 1880 appropriate additional ground to the east without compensating the owner therefor.” Ans. “ The Law promulgated in the point is correct, if tlie facts support it.” (Ninth assignment of error.) The defendants asked the court to charge: 1- “ That by the deed of Hahs to tlio defendants, the defendants acquired title to all the land wliich the statute permitfced them to take, viz., four rods aud such additional ground as is allowed to be taken where filling is required, and that under the evidence in this case, that the road on its western side encroached on Neversink street, and was on an embankment of eight feet on the eastern side, if the jury believe that the distance from the old line of Neversink street to the fence put up in 1880 along the Obert property does not exceed sixty-six feet, the plaintiff cannot recover.” Ans. “This point would be correct, if the facts assumed are true. It depends upon where the actual location and construction of the railroad was contemplated at the time of making the deed. The deed sounds in fee, the description is uncertain, but seems to have been intended for the purchase of the right of way. Then its eastern line, 33 feet from the centre line of the railroad, as then located, would make the line.” (Tenth assignment of error.) 3. “That as the testimony shows that a right of way 33 feet from the centre of the Cotton Mill branch as it existed prior to Obert’s purchase, places the fence opposite the boiler works within such right of way, the plaintiff cannot recover.” Ans. “ The testimony, taken altogether, does not warrant the affirmation of this point.” (Sixteenth assignment of error.) 4. “ That as the plaintiff’s deed calls for the Philadelphia & Reading Railroad and the branch to the Cotton Mill, as the western and northern boundaries of the property, he has no right to locate his land so as to include any of the railroad’s right of way, and in the absence of other proof, the law fixes that right of way as at least 66 feet, and therefore the plaintiff cannot recover.” Ans. “ If the facts should be as the point contemplates, this would be the law.” (Eleventh assignment of error.) 7. “That in the absence of other monuments controlling the location, the plaintiff’s land is to be located from the centre of Ninth and Cotton streets, and not from the corner of the building line of Ninth and Cotton streets.” Ans. “ Where a road is part of a call of a survey the land ad medium filum belongs that far to the adjoining owners, but that does not control the distances back from the road or street.” (Third assignment of error.) 9. “That in.the absence of proof that the plaintiff was accustomed to construct long boilers by running them out over this strip prior to April, 1880, the theory of damages sustained by reason of shortening the distance between the works and fence is too speculative to be given much weight.” Ans. “ So far I cannot go, but the jury have no right in law to award speculative, imaginative, or consequential damages, but they have a right to award damages for all injuries actual and the immediate result of the injury.” (Eighteenth assignment of error.) The court in its general charge instructed the jury, inter alia, as follows: “ If the railroad company bought this land, the one tract being the einphatical complement of the other, that would make a well-defined line, and if the line was well defined at the time of the purchase by Muhlenberg from Halis, then Mullenberg would get up to the railroad, if the railroad got that far. But it is said that this was not a well-defined line when the railroad company bought it, and that there was insufficiency in description' in the deed to the railroad. It is a rule of law that whatever is taken by a first deed from any grantor, the same grantor cannot again sell to anybody else. The rule of law is that the first deed and last will prevails. This is a well-established legal precept. What a man has sold once by a deed properly recorded, he can never sell again to any one else. If this line was not well marked between the railroad and Muhlenberg, or between the railroad and blahs, then there was insufficiency of description, and if that was not changed up to the time Muhlenberg took title, the insufficiency re- mains.” (Second assignment of error.) So far as the evidence in this ease goes, there were no monuments upon this ground. There were no stones fixed, or trees planted, or stakes of a durable character put there by the railroad. There was nothing there but a fence. If the fence was put there by the railroad company or by Halis, who covenanted to build a fence, and the company stood by and permitted the line thereby to be fixed, it will be for the jury to say whether or not the railroad company is estopped after having located and properly defined the route. “ The trouble in this case is that there is no draft in existence, made by the railroad, defining the land which they got from Hahs, or defining the road which was being constructed and built there. The language of the deed is, ‘ on which land the said Philadelphia & Reading Railroad is located, and about being constructed on and through the lot of the said Henry Hahs.’ If the railroad company had at that time made a map of their road, and produced it here as the old draft of that time, showing and defining the railroad as of that time, we would regard that draft as prevailing over everything else. That not having been done, the jury are left to grope in the dark, and the court cannot be of any assistance further than to say to you what we have already said. The question which arises is, whether or not, after having had Hahs to make such a conveyance as he did, the railroad eompany'would not be bound, they having stood by when improvements were made without making any assertion of title to the contrary. (Eighth assignment of error.) “.....There is another matter to which I wish to call your attention, and that is this: a great deal has been said about the right of a railroad under this Act of Assembly to which reference was made, that they would be .entitled to 66 feet for their roadway. That is so under this Act of Assembly. They are forbidden to go to any greater width than that, except where there is an excavation or a fill. It is admitted by an engineer that where there is a deep cut, for every foot on the height of the cut it requires one and a half feet laterally. It is the same where an enbankment must be made; and if the embankment were twenty feet high there would be a lateral extension of 15 feet on each side, because for every foot in ascent one and a half feet is required laterally to support it, otherwise the bank would roll down and would not be safe. Railroads must be built safe, and the act gives the railroad company the right to so extend on the ground where there are cuts or fills. This doctrine, however, does not apply in this case for the reason that under the evidence, winch is uncontradicted, whenever the company filled up on the side toward the old fence, after it reached it, then Obert filled up to the level of the track, -thereby making the ground level at that point. That question, therefore, needs no consideration from you.” Verdict for plaintiff for $9,900, and judgment thereon; whereupon the defendants took this writ, assigning for error the admission of evidence, the answer to points and the parts of the general charge, as above set out; also the refusal of the court to withdraw the case from the jury, under the evidence. The Hahs’ deed granted all the land which the statute permitted the defendants to take, viz., four rods and such additional ground as is allowed to be taken where filling is required. This proposition is well sustained by authorities: Prather v. Western Union Tel. Co. 14 Am. & Eng. R. R. Cases, 1, and cases there cited. Although the court affirmed this proposition in a general way, yet instead of applying it to the determination of the location of the land, it twisted it up so as to apply it to the character of the estate conveyed by the Hahs’ deed. By this deed from Hahs to Muhlenberg the location of the eastern line of the railroad was definitely fixed as to plaintiff, so that he could not claim beyond it. There was no evidence to warrant the court in submitting the questions raised by the plaintiff’s first and second points, to the jury. There was nothing tending to prove an agreement between Hahs and the railroad, made after the delivery of the deed, to fix the limits of the land to which the company would be entitled. The court has no right to affirm a point “if the facts should be as contemplated,” when there are no such facts in evidence : Whitehill v. Wilson, 3 P. & W., 415; Stouffer v. Latshaw, 2 Watts, 167. The vital question was Obert’s title to the land in dispute. He produced conveyances to him, the descriptions in which embraced the same. This was followed by evidence of possession by himself and his predecessors under said deeds for more than forty years. Obert’s witnesses showed that the fence, including the land in dispute, with his residue, was put there by Hahs under his covenant in his deed, and maintained for more than forty years, and this evidence was believed by the jury, making the conclusion contemplated by plaintiff s first three points irresistible, namely, that this fence marked the line according to the understanding of the parties. The Cotton Mill branch was not part of the defendants’ original location, and there is no evidence to show how they procured their right of way over it. The construction of this branch cannot be said to have created a new centre line from which the company could reach out and grasp all adjoining land lying within thirty-three feet of it. This is practically the defendants’ claim in regard to said branch.
109 Pa. 207Lash v. Von Neida (1885)
1. The common law presumption of payment, which arises after twenty-years, applies to all obligations, whether under seal or otherwise; and until such presumption is rebutted, a bond does not even furnish prima faeie evidence of indebtedness. 2. Where, after the presumption has attached, suit is brought on a bond on which credits for principal or interest are indorsed purporting to have been made by the obligee within twenty years, the burden of proof rests on the plaintiff to show affirmatively that such credits were in fact made while it was against the interest of the obligee to make them, viz.: before the presumption of payment had ripened. 3. While the allowing of a supplemental affidavit of defence lies in the discretion of the court, yet when such an affidavit is allowed, reasonable time must be given for its preparation.
109 Pa. 214Commonwealth ex rel. City of Reading v. Commissioners of Berks County (1885)
1. In the year 1800, the heirs of the proprietaries of Pennsylvania, had' no title, which they could convey, to land in a town, originally reserved'-, for a public commons; nor to land not so reserved, in the absence of' evidence that the same was the private properly of the proprietaries. 2. The Act of February 17th, 1852, after reciting that certain land in the city of Beading was reserved by the proprietaries in the original townplat for public commons, directed the county commissioners, who held title thereto by a deed from John and Bichard Penn, dated November 9th, 1800, to convey the same to the city of Beading. Upon bill for mandamus to compel the execution of such conveyance: Held, that the commissioners must make a deed as directed by tire Act. In view of the Act of Divestiture passed November 27th, 1779, and the Act of April 10th, 1781, and in the absence of evidence that said land was the private property of the Penns, they had no title which they could convey to the commissioners, who held, therefore, at the sufferance of the state, subject to the will of the legislature.
109 Pa. 219Weiler v. Kershner (1885)
A. made an assignment to B. ior the benefit of creditors. Afterwards, on the same day, A. sold certain personalty, included in the assignment, 1o C., the consideration being a debt due C. by A. B. brought an action of debt before a justice to recover the value of the goods. On appeal to the Common Pleas the court charged “that for the purposes of this suit, under the evidence, the action of debt might be sustained.” Held, that even if assumpsit or debt could not have been sustained under the evidence if the action had been brought in the Common Pleas, yet under section 4 of the Act of 1810 [providing that on appeal from a justice, to the Common Pleas the cause shall be decided on its facts and merits only and no mistake in the form of action shall prejudice either party], in the absence of a narr, and it appearing that the cause was tried on its merits, the judgment, being right, would not be reversed, although the court below did not put the case on the true grounds.
109 Pa. 222Appeal of Esterly (1885)
1. A judgment obtained against a decedent in Ms lifetime, the lien of which has expired by failure to revive, is sufficient evidence of a claim, in distribution of a fund wMek belongs to Ms estate. 2. After an unaccounted-for absence of seven years, the law presumes the absentee to be dead. In a case where such absentee, if living, would inherit real estate, such estate will descend not to Mm but to the heirs of the person dying seised. 3. The appointment of a trustee durante absentia, under the Act of April 11th, 1879 (P. L. 21), imports only the absence of the person for whom the trustee is desired. It does not adjudicate the ownership of any property made the subject of the trust, or'that the absentee is either alive or dead. • The trust is a temporary and provisional one, and is held subject to such uses as to justice and equity belong, under the direction of the court. 4. A. was last heard from in May, 1870, when he disappeared from home, leaving a wife and four children. In March, 1879, his father died intestate seised of certain real estate. Partition of this real estate was had upon the petition of certain of the heirs, which petition set forth the fact of A.’s absence. A guardian ad litem was appointed for A.’s children, and the heirs were subsequently called upon to accept or refuse the purparts awarded by tlie inquest. A. failed to respond, and thereupon the guardian ad litem appeared and refused to take at the valuation. Certain other heirs took the property at the valuation and gave bonds “to A. if living, and in case A. died before his father, then to Ms heirs and legal representatives,” for a proportionate share of the property. In 1880, A.’s wife applied for the appointment of a trustee for A. durante absentia, and a trustee was appointed to whom the proceeds of a proportionate share of A.’s father’s estate was paid. On the audit of the trustee’s account — the said proceeds constituting the fund for distribution — B., a creditor of A., presented his claim for allowance. Held, (1) That neither the partition proceedings nor the appointment of a trustee durante absentia, adjudicated the fact that A. was alive or dead, or the ownership of the said fund. (2) That alter A.’s disappearance for seven years unheard from, the law presumed him to he dead, and this presumption was as effective as direct proof of the fact. (8) That A. being presumed to be dead, the share of Ms father’s estate went to A.’s children directly, they inheriting as grandchildren. (1) That therefore A.’s creditors could not participate in the distribution of the proceeds of sueli share.
109 Pa. 231Manderbach v. Bethany Orphans' Home (1885)
Error to the Court of Common Pleas of Berks county: Of January Term 1885, No. 395. This was a case stated, wherein the Bethany Orphans’ Home was plaintiff and Henry H. Manderbaeh defendant. The following facts were stated in the nature of a special 'verdict for the opinion of the court: On August 11th, 185(5, John Manderbaeh, who was seised of a tract of land in Berks county containing about sixty-nine acres, sold and convejmd to the Lebanon Valley Railroad Company, and their successors, the right and privilege to enter in or upon his land aforesaid, and lay a pipe from any point on the railroad, either on the property of the said railroad company or on the property of the said John Sheetz, to a certain spring on the said land of Manderbaeh or to some point in the outlet thereof, and conduct the water of the spring to the railroad. In 1859, Manderbaeh by deed duly executed and acknowledged,granted and conveyed “ unto the said John Sheetz, and to his heirs and assigns, out of the pipes which the water is now conveyed from the said spring to said Womelsdorf Railroad Station, a perpetual water right, to attach a two-inch water pipe to the said pipes, to convey the water through the said two-inch pipes to the dwelling house or houses now built, or which may be hereafter built, by himself, his heirs, or assigns, to attach hydrants to said water pipes laid by the said John Sheetz, to convey water to any dwelling house or houses now built or which may hereafter be built on the premises of the said John Sheetz. . A perpetual water right, as aforesaid, to be at the expense of the said John Sheetz, his heirs or assigns. In consideration whereof, the said John Sheetz, for himself, his heirs, executors, administrators and assigns, doth covenant, promise and agree to and with the said John Manderbaeh, his heirs and assigns, by these presents, that he, the said John Sheetz, his heirs, executors, administrators and assigns, shall and will pay the sum of five dollars annually for each and every dwelling house or houses, now built or which may be built hereafter, as aforesaid, to which the water may be conveyed to such 'house or houses through a hydrant or sub-hydrant out of said water pipes perpetual, as aforesaid. And for the true performance of all and every the covenants and agreements, aforesaid, each of the said parties binds himself, his heirs, executors, administrators and assigns in the penalty of fifty dollars lawful money of Pennsylvania firmly by these presents.” John Sheetz upon the execution of this deed made the attachment, and lie and his assigns have since used the water in conformity therewith. John Manderbach died intestate in 1868, seised of the aforesaid tract of land. His administrator conveyed the said land to David Manderbach, who conveyed it to Henry H. Manderbach, the defendant. The administrator’s deed to David _ Manderbach, conveyed the aforesaid “sixty-nine acres and twenty-eight perches, strict measure, together with all and singular the houses, out-houses, buildings, ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances, whatsoever thereunto belonging, or in anywise appertaining, and the reversions, remainders, rents, issues and profits thereof, and also all the right, title, interest, property, claim and demand whatever of the said John Manderbach, in his lifetime, at and immediately before the time of his decease, in law, equity or otherwise howsoever, of, in and to, or out of the same.” The deed from David Manderbach to Henry H. Manderbach, conveyed the same sixty-nine acres and twenty-eight perches, together with the “ ways, waters, water-courses, rents, issues and profits,” &c., as above fully recited. In 1867, Henry H. Manderbach by deed conveyed to the Bethany Orphans’ Home the plaintiff, 29 acres of the aforesaid tract of land. The deed for this portion, which contained the spring of water, contained the usual grant of “waters, water-courses, reversions, remainders, rents, issues, and profits ” &c. By a subsequent deed, defendant conveyed to plaintiff the remaining portion of the original tract of 69 acres, except a lot of about three acres, over which the pipe of the railroad company crosses. The question submitted for the determination of the court was whether the said Bethany Orphans’ Home, the plaintiff, is entitled to the five dollars annually due from the said John Sheetz, his heirs and assigns, for each dwelling house to which the water from said spring is conveyed, or not. The court below (Hagknman, P. J.,) entered judgment for the plaintiff. The defendant thereupon took this writ of-error, assigning for error the entry of the judgment for the plaintiff. Manderbach granted to Sheetz only the water in the pipes of the railroad company. The right to use the water he had already granted for a valuable consideration to the railroad company. To it therefore belonged both the pipe and the easement. In conveying the water, the soil will not pass. Hence this covenant with Sheetz does not attach to the land itself and does not run with the title : Greenleaf’s Cruise IV., p. 268 ; Spencer’s 1 Smith’s Lead. Cases, 133; Dark v. Johnston, 5 P. F. S., 164. Granting that the right in Sheetz was an easement, it was therefore indivisible. As the defendant is still seised of a portion of the original tract, the right to the compensation necessarily inheres in him. Cited Boyd v. McCombs, 4 Pa. St., 147; Tabor v. Bradley, 18 N. Y.‘, 111.
109 Pa. 235Appeal of Merkel (1885)
Appeal from the Orphans’ Court of Berks county: Of January Term 1885, No. 123. Appeal of J. George Merkel and Edwin M. Shollenberger, administrators of the estate of Susanna Leibensperger, front the decree of said court, making distribution of the personal estate of Philip Leibensperger, deceased, in the hands of Jacob D. Leibensperger, executor of said Philip Leibensperger, upon the confirmation of his final account. The facts were as follows : Philip Leibensperger, a farmer residing in Berks county, died November 6th, 1877, leaving to survive him a widow, and collateral heirs, viz., a brother and sister, and the children of a deceased brother and sister. His will, written by himself in the German language, was dated January 17th, 1872, proved November, 16th, 1877, and the following translation was admitted by counsel to be correct, viz. In the name of God, Amen. I the undersigned Philip Leibensperger of Richmond Towns-ship Berks County, in the State of Pennsjdvania, in that I find myself in good health, as also of good memory and understanding, for which I heartily thank God, make and declare these presents to my last will and testament as follows, namely : I give and bequeath to my beloved wife Susanna my remaining personal property, it may be money or whatsoever kind it will to her full ownership as long as she doth live. Further I recommend that my hereinafter named executor shall see after that her money does not become lost. I give and bequeath to my wife in addition the tract of woodland which is situated in Ruscombmanor Township, Berks County, as her property, as long as she doth live, to have the right to dig thereon for ore and to retain the revenues, she also dare take wood therefrom as much as she needs for her use it may be of which which kind it will, nevertheless she can sell it if she wishes. Further I give and bequeath to my niece Marietta Leibensperger the sum of three thousand dollars which my hereinafter named executor shall pay to her as soon after the death of my wife but in case she should not live anymore then this sum shall be paid to her children should she die without children then to her brothers and sisters that are then living or do live. Further, I give and bequeath to Jacob Leibensperger son of Solomon that my real estate which is situate in Richmond Township, Berks County, situate which is together one hundred and ninety-seven acres, therefor*, he shall pay the sum of seven thousand dollars to the children of Daniel Leibensperger namely; Anna, Catharine, Marietta, Caroline, Amanda and John, but should one of Daniel Leibensperger’s children (lie without heirs then its share shall fall back to the yet living brothers and sisters or their children. Further, I give and beqneatli the half of the dwelling house to my wife Susanna, and kitchen and bakeoven for her dwelling as long as she is or does remain my widow. Further, the owner of the land shall keep one cow for her, lie shall give pasture and feed and stabling for one cow shall haul her fire wood for hem Further, the owner of the land shall give one-fourth of an acre of ground to plant potatoes thereon, and a piece in the garden, and apples as many as she needs for her use. And finally, I appoint Jacob Leibensperger as executor of this my last will and testament. In testimony I have set my hand and seal the seventeenth clay of January, A. D., eighteen hundred and seventy-two. Philip Leibensperger. [l. s.] Henry S. Shaffer, Isaac S. Schaeffer. The testator’s widow, Susanna Leibensperger, died March Ifilh, 1882, intestate and without issue, and letters of administration on her estate were granted to J. George Merkel and Edward M. Sliollonberger. During her lifetime the securities representing tlie personal estate of her deceased husband amounting to over 818,000, bad remained in the custody of his executor, and she had drawn only a portion of the income thereof for her support. After her death the executor of Philip Leibensperger, deceased, filed his final account, which was referred to an Auditor, G. H. Schaeffer, Esq., to audit, and to report distribution of the balance of personalty in his hands, which amounted to 819,081.60. The Auditor awarded to Marietta Leibensperger the legacy bequeathed to lier in tlie will, and the balance was claimed, on tlie one hand, by tlie administrators of Susanna Leibensperger deceased, on the ground that under tlie will she took an absolute estate therein; and, on the other hand, by the collateral relatives of the testator, on the ground that the widow took only a life estate under said will, and the testator died intestate as to the remainder. Tlie Auditor sustained the claim of the former, and awarded the balance to them. Upon exceptions to his report, the Court, Schwartz, P. J., sustained tlie claim of the latter, and decreed distribution accordingly, to the collaterals. The administrators of Susanna Leibensperger thereupon took this appeal, assigning for error the sustaining the exceptions to the Auditor’s report, and the said decree.
109 Pa. 240Lerch Hardware Co. v. First National Bank (1885)
1. In an action by the indorsee against the maker of a negotiable promissory note, proof by the defendant that the note was fraudulently issued puts the plaintiff to proof of his standing as a bona fide, holder for value. 2. In an action by the indorsee of a negotiable promissory note made in the name of a limited partnership company, organized under tlie Act of June 2d, 1871 (P. L. 271), signed by persons purportingto be officers of such company, and otherwise regular upon its face, an affidavit of defence by such company, setting forth that the note was not given for any purpose within the scope of the partnership business, but was given by one of the members without the knowledge and consent of his co-members, and in fraud of the company, is sufficient to warrant the court in refusing to enter judgment for the plaintiff‘for want of a sufficient affidavit of defence.
109 Pa. 246Reading Iron Works v. Devine (1885)
Error to tlie Court of Common Pleas of Berlcs county: Of January Term 1885, No. 172. This was an action on the ease by Catharine Devine et al., widow and minor children of Winfield S. Devine, against the Heading Iron Works, a corporation, to recover damages for the death of the said Winfield S. Devine, who was killed while in the employ of the defendant company through its alleged negligence in failing to supply him with safe and suitable machinery. Plea, not guilty. On the trial, before Albright, P. J., the following facts appeared : The defendant company was a corporation engaged in the manufacture of iron for different purposes, and in furtherance of these objects owned and operated several establishments in different localities of the city of Reading. At one place the company had furnaces, bar and plate rolling mills and tube works; at another, a sheet mill; in a third locality it bad a steam forge, and about two squares distant therefrom it maintained a foundry known as the Scott Foundry. All these establishments are under the management of one general superintendent, although each has a special foreman. The steam forge manufactured the forgings for the machines which the Scott Foundry builds, and also sold the forgings to third parties to a limited extent. Devine was employed in the Steam Forge to operate the steam hammer. Several weeks previous to the accident, the company employed a Philadelphia manufacturer to replace the old steam hammer with a new one. After the new hammer had been placed in position by the Philadelphia firm, the defendant company sent some of the operatives of the Scott Foundry to complete the repairs by the attachment of the steam supply and exhaust pipes. It was necessary for this purpose to place overhead a large beam of timber extending from one joist to another as a support for the exhaust pipe. By some oversight or neglect this beam was not properly fastened, and when Devine, upon the completion of the repairs, resumed the operation of the machine, the beam fell upon him and inflicted injuries of which he died. It was in evidence that he had assisted to some extent in the work of these repairs, although he had not been present on the day on which the beam was placed in position. One of plaintiff’s witnesses testified : “ Q. Was Devine about while this was repaired? A. He was. Q. Did he have anything to do with you people ? A. He did, until the hammer was erected; while we were putting the pipes up he was not there. He was not there on that morning when I got hurt...... Q. Up to the time you were hurt, was Devine there ? A. He was there; he was there the morning I was hurt. Q. Did Devine have anything at all to do with the fixing up of things there? Was he not given directions to have charge of you men there — to look after you? A. Well, he was around that hammer because that was the place of his work...... Q. Is it not true that at the time you were working around the hammer, when Devine was there he was the boss — that he was the man from whom you got the instructions — is not that true? A. In rigging up and repairing around there, when they were putting up the legs, we worked all under the machinists — Devine and all. But in cleaning up, or something of that kind around the hammer, we worked whatever he told us to do...... Q. He was put in charge of that part of the work because he had to run that hammer? A. Well, not in particular, I guess; not to my estimation. It was done that way because he was there, it took less talking to explain what was to be done. Q. He was more familar with it, and was more interested in having everything secure? A. He was to work under it. Q. Did you hear Mr. Kerr tell Devine that he should take care that everything was secure overhead ? A. Not in that way; before the hammer ever was started, he told him to look after that everything was right. That is the remark.” Kerr, the foreman of the.steam forge, testified: Q. What had Mr. Devine to do with the repairs that were going on there ? A. During the time the hammer was taken down, or sent to Philadelphia for repairs, I think he was idle for some time, considerable time, but just so soon as we got it back he was re-employed, and he had instructions from me personally to see that everything was made secure before we turned the steam on. Q. Made secure where ? A. Both overhead and around the hammer. I warned him specially that everything should be made right overhead with the beams. And some of the beams that required to be there, I would not allow any other to place there but himself; and he did arrange a number of other beams. This special beam he did not; but he had instructions from me to see that everything on top was made fast, knowing the danger that would result. Q. Who has charge and oversight of the rigging and machinery of a hammer? A. Well, in putting up a new hammer, usually a machinist is sent with it, but in running and repairing, the hammer-driver or hammer-runner. Q. What was Devine’s position ? A. Hammeiydriver or ha ni in er-r un n er. By the Court : Q. Whose charge was it to keep the hammer in repair? A.'He repaired around the hammer. Q. When was it that you gave these instructions to Mr. Devine ? A. I kept Devine there several days when otherwise I had nothing for him to do, except to see that everything was made right around the hammer. Q. And was he there ? A. He was there. Q. When — -before or after the completion of the repairs ? A. He was there both before and after the completion of repairs. Q. Do you know whether or not he examined the rigging overhead? A. Well, I saw him following out, as I understood, the orders that 1 had given him, examining around the hammer. Q. Did you see him at any time up on the rigging ? A. Oh, yes; I saw him frequently on the beams above the hammer, both after and before the repairs were finished. Q. Did you see him up there at any time after the hammer had begun to run ? A. Frequently. The defendant submitted, inter alia, the following points : 1. That the evidence shows that the employees of the defendant, by whom the timber which fell on and killed Mr. Devine was placed, were the fellow-servants of Mr. Devine, and therefore the plaintiff cannot recover. Answer. Negatived. 4. That under all the evidence in this case, the verdict must be for the defendant. Answer. Negatived. The court charged the jury, inter alia, as follows : It is also a rule of law that where several are in the employ of the same individual, and owing to the carelessness of one of the employees another one is hurt or killed, the injured party cannot recover damages; because when an employee enters the employment of another, one of the risks which he takes is the carelessness of the other employees; and the employer cannot be held responsible for the injury which happens by reason of the negligence of one of the employees. This rule is invoked by defendants to excuse them from all responsibility because of the alleged negligent placing of this piece of timbe'r overhead where the deceased worked. [If the deceased had met his death owing to the . carelessness of some other man who with him was operating the hammer, or working in this forge while it was being carried on, I would say to you, as a matter of law, that the plaintiffs could not recover. But I cannot assent to the defendant’s contention that the carelessness — if there was carelessness — of the men who came there from the Scott Works to repair this hammer will excuse the defendant. I cannot assent to the proposition that they were fellow-employees of the deceased within the rule of-law, to which I have just alluded. It appears that shortly before this accident occurred there were extensive repairs made at the works known as the Forge ; that the hammer was either repaired or made by a party in Philadelphia; that then workmen were brought from the Scott Works to make the connection of the steam-pipes; that , they did so,.and while connecting the pipes, placed the exhaust-pipe on the beam in question to support it. In the opinion of the court it could not be found under this evidence that the workmen thus making the repairs were fellow-workmen of the deceased, within the rule which protects an employer against liability for the injury caused by a fellow-employee. In the opinion of the court, the repairing of the 'works was the act of the defendant, and if the defendant sent the men from the Scott Works there to make the repairs, they are to be held to the same measure of responsibility as if they had employed outside parties.] Verdict for the plaintiffs for $1,541 and judgment thereon. The defendant took this writ of error, assigning for error inter alia, the answers to its first and fourth points as above, and the above portion of the charge of the court enclosed in brackets. Where servants are in the employ of a common master, receive their compensation from the same source and their labors have the same general, although not immediate, purpose, they are fellow-servants. Servants, therefore, who are employed by the master to repair the machinery, are fellow-servants with those who operate it. The particular work where the negligence occurred in this case was in repairing the hammer in its place. The particular work where the accident occurred was in operating the hammer, but the common purpose in view was the production of hammered iron. The repairing of the hammer and placing of supports for the steam-pipes contributed as essentially, if not so immediately, to the latter purpose as the working of the lever which controlled the steam. The employments differ in grade, but there is only a step between them. In addition to this, the evidence clearly showed that Devine contributed to the work of these repairs, and was therefore a fellow-servant of the men whose negligence caused the accident: Lehigh Valley Coal Co. v. Jones, 5 Norris,482; Morgan v. R. II. Co., S'5 L. j. Q. B., 28; Farwell v. R. It. Co., 4 Met., 49 ; Albro v. Canal Co., 6 Cush., 75 ; Gillshannon v. R. R. Co., 10 Id., 228: Gilman v. R. R. Co., 10 Allen, 288 ; Seaver v. R. It. Co., 14 Gray, 466; Itussell v. R. R. Co., 17 N. Y., 134 ; Boldt v. R. R. Co., 18 Id., 482; Wonder v. R. R. Co., 32 Md., 411 ; McAndrews v. ‘Burns, 39 N. J. L. Rep., 119. A master is under an implied contract witli those whom he employs, to adopt and maintain suitable instruments and means with which to carry on the business in which they are employed. This includes an obligation to provide a suitable place in which the servant, being himself in the exercise of due care, can perform his duties safely, or without exposure to dangers that do not come within the reasonable scope of his employment: Cay’zer v. Taylor, 10 Gray, 274; Seaver v. Boston & Maine R. R. Co., 14 Id., 466 ; Gilman v. Eastern R. R. Co., 10 Allen, 233 ; Coombs v. New Bedford Cordage Co., 102 Mass., 572 ; Pass R’y Co. v. Bresmer, 1 Out., 106 ; Hough v. Ry. Co., 100 U. S., 219 ; Atchison, Topeka & Santa Fe R. R. Co. v. Moore, 11 Amer. and Eng. R. R. Cases, 251. The rule as to fellow-servants invoked by the plaintiff in error has no application. A workman, of course, takes the risk of the negligence of his fellow-servants; but those only are fellow-servants, in the sense of this rule, who were engaged with Devine in the work of operating the steam forge ; those who were negligent in an entirely different employment, viz. • that of constructing the building and machinery, were not his fellow-servants, when he was injured as hammer-driver, in operating the forge : Hough v. R. R. Co., supra ; Banning v. R. R. Co., 49 N. Y., 528 ; A. T. & S. F. R. R. Co. v. Moore, supra.
109 Pa. 254Ackerman v. Buchman (1885)
A petition by A. et al., after showing their authority to act as a Board of Water Commissioners in constructing public Avater works for the Borough of Easton, under the Acts of March 12th, 1867 and Ajnil 15th, 1867, set out that they had selected a site for the works and for the reservoir, as the law provided; that said location was suitable and convenient ; that arrangements had been made for the purchase of the land from the owners; thatB. et al., the town council, had been duly notified of the action of A. et al., and had been called upon to issue bonds to raise the money necessary to carry out the provisions of said Acts; but thatB. et al., had refused to issue the bonds or to take such action as the Acts required. The petition then prayed for a mandamus to compel the issuing of the bonds. The ansAver of B. et al. averred that A. et al. had not informed them whether any contract had been made to construct the Avorks, or whether they would be constructed otherwise; nor how much money would be required during any specified period; that A. et al. had not requested the appropriation of any specific sum for the Avork; that they, B. et al., had been advised that under the said Acts it was not necessary for them to borrow money for the construction of the works unless the current revenues of the borough were insufficient therefor; that in the absence of any estimate of the cost of said works they had no basis upon which to make appropriations. The answer further set up that the issue of the bonds would be a violation of Sec. VIII, Art. IX of the new constitntion and of the Act of April 20th, 1874. To this answer A. et al. demurred, and the court gave judgment for them on the demurrer and ordered the mandamus to issue. Held that this was error. B. et al. were given authority by the Acts of 1876 to issue the bonds, but under said Acts they were judges of the necessity for such issue, and they were entitled to the information specified in their answer and admitted by the demurrer to be lacking, before they could properly determine such necessity. Held, also, on the authority of Wheeler v. Phila., 27 P. F. S., 852 and Pike County v. Rowland, 9 W. N. C., 241, that the issuing of the bonds under said Acts of 1867 would not be a violation of Sec. VIII., Art. IX. of the new Constitution, or of the Act of April 20th, 1874.
109 Pa. 262Taylor v. Commonwealth (1885)
1. On the trial of an indictment for murder, it appeared that the accused, who was a convict in the penitentiary, lolled his keeper while the latter was in the prisoner’s cell yard for the purpose of locking him in his cell. The physician who made the autopsy was called by the Commonwealth and asked whether a certain wound found on the head of the deceased could have been made by a spool or bobbin found in the prisoner’s cell just after the murder. This was not accompanied by any offer to follow the question by proof that the spool was really the instrument used to strike the blow, but subsequently in the further examination of the physician he testified that the spool was stained with blood and had several hairs sticking to it and that the shape of the wound showed it to have been made by the spool: Held, that if there were any valid objection to the admission of the question it related merely to the order of time when it was asked, and that in view of the witness’s subsequent testimony, its admission was not ground for a reversal. 2. Upon being arraigned the prisoner pleaded not guilty. Eight days after-wards the jury was sworn, without objection. The defence then asked to withdraw this plea and file a plea that the prisoner was a lunatic at the time of the trial. This the court refused and instructed the jury that if they found the prisoner insane during tire trial, but not at the commission of the crime, they might say so in the verdict and the court would delay judgment and stay execution. Held, that in view of the time when this application was made, the prisoner received all the protection therefrom to which he was entitled. 3. Certain witnesses, not experts, were called to testify to acts of the prisoner within their knowledge, and conversations with him, and were then asked their opinions as to his sanity: Held, that having testified to the acts and conversations upon which these opinions were based the same were admissible, and it was for the jury to decide whether the acts and conversations justified the opinions. Such evidence is admissible in criminal as well as civil causes. * 4. While a slight departure from a well balanced mind may be pronounced insanity in the medical science, yet such a rule cannot be recognized in the administration of the law, when a person is on trial for the commission of a high crime. 5. The question oí the degree or extent of uusoundness of mind necessary to acquit one who has committed a homicide, discussed, and the rulings of the court below thereon in- this case, affirmed.
109 Pa. 271Anewalt v. Hummel (1885)
In an action by a landlord against Ms tenant to recover the value of certain hay and stubble belonging to the landlord, which the tenant on entering into possession of the demised farm had found thereon and converted to his own use, the defendant offered evidence to prove that it was a custom among farmers in the neighborhood to allow the tenants the use of such produce. The testimony was limited to that of four farmers who testified that such was their practice in dealing with their tenants. Held, that the evidence was insufficient to submit to the jury as to the existence of the custom. Held further, that the custom, even if proved, was unreasonable and therefore invalid.
109 Pa. 274In re Road in Palmer (1885)
1. In the laying out of a public road, viewers should avoid a location crossing ¿.railroad track at grade, if it can reasonably be avoided. If they adopt such a crossing at grade, and the Court of Quarter Sessions, on exceptions to the report, find that the grade crossing could not be reasonably avoided and confirm the viewers’ report, the Supreme Court cannot, on certiorari, go into the merits of the case, and where the record shows no error, or abuse of discretion, the order will be affirmed. 2. In a report of viewers, when no mention is made of toy improvements situated on the route of the road, or whether the land was improved or not, the Supreme Court will not reverse because the court below overruled an exception to such omission in the report.
109 Pa. 277Delp's Appeal (1885)
Appeal from the Court of Common Pleas of Northampton County: In Equity: Of January Term, 1885, No. 102. Bill in equity, by Samuel E. Delp against Joseph Delp et al., to compel the specific performance of a contract for the sale of land. The defendants filed an answer to said bill and the cause was referred to Henry W. Scott, Esquire, as Master. The following is an abstract of the bill and answer: The bill set forth that Joseph Delp being seised of a certain slate property and tract of land situate partly in Washington and partly in Plainfield Townships, Northampton county, containing 83 acres and 160 perches in the said bill, more particularly described by metes and bounds, on March 18th, 1880, entered into a written contract or option (a copy of which was appended to the bill) for the sale of said land to plaintiff for $9,000, to be paid on or before April 1st, 1881. That in the latter part of 1880, and also in January 1881, plaintiff being ready to take the property, as provided in the agreement, and having notified Joseph Delp thereof, the latter waived the payment of the $9,000 consideration, as provided in the agreement, and declared and agreed that plaintiff should be privileged to pay $4,000 thereof on or before April 1st, 1881, and the balance of the $9,000 should be payable in one year and be secured by mortgage upon said property. The bill further alleges that possession was given to plaintiff in pursuance of the said agreement, and that improvements were made upon the property by plaintiff upon the faith of said agreement. .That after said plaintiff had agreed to take said land Joseph Delp had waived the manner of payment of the $9,000, as stated,, and after plaintiff had entered into possession and expended money in making improvements in said property, Joseph Delp, on January 14th, 1881, sold and conveyed to Richard N. Merrill the greater part of said tract containing about 66 acres as in said bill described. That said Merrill had notice of the contract between plaintiff and Joseph Delp and the possession taken and improvements made thereunder. That said sale to Merrill was made by Joseph Delp and Merrill with the intention of defeating plaintiff’s right and equity. That a tender and offer of performance were made by plaintiff to Joseph Delp February 5th, 1881, in accordance with the contract and the change in time of payment of purchase money as stated in the bill, which was refused by Joseph Delp. The bill then avers the willingness of plaintiff at all times to perform his part of said contract and concludes with a prayer that Joseph Delp and Merrill be decreed to specifically perform said contract and execute a proper deed for said premises. Afterwards amendments were filed adding Joseph Bray, Henry Short and others as defendants and setting forth a conveyance from Merrill to Bray and'Short of the part of the premises sold Merrill, by deed dated January 31st, 1881, which was not recorded until July 23d, 1881. That Bray & Short had employed Merrill to procure said property from Joseph Delp with the understanding that he was to get a deed for the same, and then convey it to Bray & Short. That Bray & Short then had knowledge and notice of the plaintiff’s lights and equities as stated in the bill. That said conveyance was secretly made and concealed from plaintiff and not recorded until after the filing of the bill, when it first came to plaintiff’s knowledge. The prayer of" the bill was also amended so as to include Bray & Short in the prayer for specific performance and execution of a deed to plaintiff. Joseph Delp, in his answer to plaintiff’s bill, admits his seisin of the land described in the bill, except, however, certain building lots which had been sold therefrom before he became the owner. That as to the written agreement set forth in the bill it was verbally understood and agreed at the time of its execution that the premises therein mentioned should not include certain lots numbering thirty. He admits that he sold and conveyed the 66 acres, tract of land mentioned in the bill, to Richard N. Merrill on the 14th of January, 1881, and avers that it was further agreed at the time of the making said agreement that Joseph Delp should have the right to sell the property as well as the plaintiff, and in case lie did so he was to pay the plaintiff $¡100, whicli he declares his readiness to pay, and that so far as the' agreement was written otherwise it was a mistake. The answer either denies or refuses to admit all the other allegations of the bill. In a separate answer the remaining defendants deny any knowledge or notice of the contract between plaintiff and Joseph Delp, or of any of the other matters constituting the right or equity of plaintiff, as alleged in the bill. The answer further denies any conspiring or intention to defeat the equity of the plaintiff or mislead said plaintiff, and avers that the deed was executed and given publicly and without concealment or intention to mislead plaintiff or defeat his rights or equity in the premises. The Master found as a fact that before the sale to Merrill the purchase money stipulations in the written agreement were changed by parol and that in their modified form they had been partly performed by the plaintiff and a tender made of full performance. The master accordingly recommended a decree that the defendants be compelled to specifically perform the agreement to convey as prayed for in the bill, except that the deed should be made for 64 acres and 148|- perches, instead of the number claimed in the bill. The opinion of the court, on exceptions filed to this report, was delivered by Schuyler, J., and contained the following: It is the purpose of the present proceeding to obtain a decree for the specific execution of a contract respecting laud. To a proper understanding of the points in controversy it will be necessary to refer briefly to the facts, some of which are undisputed and others are found by the Master. On the 18th day of March, A. D. 1880, the plaintiff and Joseph Delp, one of the defendants, entered into, written articles of agreement in which the said Joseph Delp agrees to sell the plaintiff or his assignees a certain tract of land, described in the agreement as containing eighty-three acres, more or less. The consideration mentioned is $9,000, which was to be paid when the deed was delivei’ed, to wit: on or before the first day of April, A. D. 1881, and in the meantime the plaintiff was to have the privilege of prospecting on the land for slate. The agreement closes with the following stipulations : “ And it is further agreed that if the said Joseph Delp should find a purchaser for the property at the sum herein agreed upon, Samuel E. Delp, not having a buyer read}- he, the said Samuel E. Delp, will relinquish his right by Joseph paying Samuel E. Delp his cost and reasonable charges in developing the property, and in trying to sell the same, including one hundred dollars for his trouble; but no party shall claim a sale until a fourth part of the purchase money is paid.” On January 14th, 1881, Joseph Delp conveyed the bulk of the property — the discrepancy in quantity is not material — to Richard N. Merrill, one of his co-defendants, for $9,600, cash, who in turn conveyed to Bray & Short, the other co-defendants. Down to and including the date of the sale to Merrill, the plaintiff had not paid or tendered Joseph Delp “ a fourth part of the purchase money,” which was, as has been seen, a condition precedent to his right to “ claim a sale,” so that if there were nothing more in the ease it is clear that plaintiff would have no standing in court. But it is contended, and the Master so finds, that before the sale to Merrill the purchase money stipulations in the written agreement were changed by parol and that in their modified form the have been performed in part, and as to the balance that there has been such a tender of performance by the plaintiff as to entitle him to the decree he is now asking. I regret to be compelled to disagree with the learned Master as to the first part of this finding. ..... The alleged change in the written contract is an inference from certain conversations between the parties and from admissions of Joseph Delp. The Master’s account of what these conversations and admissions really were is accepted as verity. The inference he draws from them is alone called in question.....Now, the Master finds that the parol modification of the written agreement was effected January 10th, 1881. On that day the parties were together and had a conversation in reference to the sale by Joseph Delp to the plaintiff of a “farm.” Whether this farm is the same land included in the written agreement is left to the merest conjecture. The terms of sale were fully settled and assented to. It is true that the price was not expressly mentioned at the time, but it is clear that it was well understood by the parties. The plaintiff held a note against Joseph Delp for $200. This was to be given up and credited on the purchase money; $300 more were to be paid on the following Tuesday; $3,500 more on or before the first day of April, A. d. 1881, when the deed was to be delivered. The balance of the purchase money was to be secured by bond and mortgage. It is safe to say that if this agreement had been reduced to writing, according to the plain understanding of the parties, and had been subscribed by them, nothing further would have been heard of the written agreement of March 18th, 1880. The parol agreement was complete without the previous written one. The written agreement was not once mentioned. Not a word was said about “option” or “refusal,” a most important feature of the written agreement. On the contrary, it is manifest that the parties understood that they were entering into a new and independent contract. They call in a “witness to the bargain.” On the day after the parol agreement the plaintiff, at the request of Joseph Del]), wrote a letter to a creditor of the latter, signing Joseph’s name to it, in which he says: “I sold my farm yesterday.” Moreover the plaintiff, by an indorsement on'the $200 note, fixes January 10th, 1881, “ as the time of the purchase.” The foregoing are substantially all the facts bearing upon the question of the modification of the written agreement. We do not think that they justify the deduction drawn from them by the Master. But even if it were otherwise, we still think that the plaintiff ought not to have a decree for specific performance. It is idle to say that the effect of the parol agreement was nothing more than a waiver of a condition precedent to be performed by the plaintiff. This might have been true if the written agreement had been for the sale of the land absolutely on payment of the purchase money within the time limited. But such was not its character. It was a' mere option, and not even that pure and simple, for Joseph Delp reserved to himself the right to sell the land upon the same conditions — a very valuable right, as the result proved. But for the parol agreement the sale to J udge Merrill would .have been valid beyond question, and if that sale is not valid it is solely because the right to make it ami the right to the consequent profit were taken away by the parol agreement. None of the decisions cited by the Master, or by the counsel for the plaintiff, cover such a case as this. There is still another obstacle in the path of the plaintiff. In his bill he claims a deed for “83 a., more or less.” The tract of land described in the bill, it seems, contained 85 a. 84 p., but some six acres of this were sold off before the agreement and are not in dispute, leaving say 79 acres for which plaintiff says he is entitled to a deed. The Master allows him but 64 a. 148-|- p. On the argument the plaintiff, through his counsel expressed a willingness to accept a deed for this quantity, persisting, however, that under the written agreement he is entitled to a deed for the whole 79 a. If, therefore, we follow the Master we will have to enforce specific performance of a contract different from that set out in the bill, and different from the one which, according to the plaintiff’s own statement, was actually entered into between him and the defendant. One other matter deserves passing notice. As stated above the Master finds that plaintiff is entitled to but 64 a. 148|- p. of land. This finding was excepted to by the plaintiff, but the exception was not pressed. The finding must therefore be accepted as correct. It has also been stated above' that the plaintiff claims considerably more than the 64 a. 148-|- p. He not only claims it, but before the Master he attempted to bolster up his claim by statements under oath which were persisted in with great tenacitAu [To the effect that the written agreement also related to the land in excess of 64 a. 148|- p.] It Avould be charitable to believe that he was simply mistaken in these statements, but there is scarcely room for such a construction. This, therefore, is the position of trying to make an improper use of the Avritten agreement. This may not be fraud, but it is enough to make a chancellor pause before granting the relief sought in the present bill. The plaintiff’s hands are not clean. Decree: bill dismissed with costs. Thereupon the plaintiff took this appeal assigning for error the decree of the court. The agreement of March 18th, 1880 was an agreement by Joseph Delp to sell to Samuel Delp a certain piece of land described, upon an election or acceptance by Samuel, which was to be exercised by him at any time until April 1st, 1881. Samuel notified Joseph of his acceptance of the option, on January 10th, 1881, and before Joseph’s conveyance to Merrill. True, this acceptance was in accordance with the terms of the parol agreement in regard to the time of payment of the price. There was no change made by parol, in the vendor’s written contract, but simply a modification of the time or manner of the payment of the purchase money by the vendee. This did not affect plaintiff’s right to the written agreement: Vicary v. Moore, 2 Watts, 451; Green v. Roberts, 5 Wh., 84; McManus & Henry v. Cassidv, 16 Sm, 260; Bridge Co. v. M’fg Co., 2 N.,517; Ellnmkcr V. Franklin Fire Ins. Co., 6 W. & S., 443; McCombs v. McKonnan, 2 W. & S., 216; Lawall v. Rader, 12 IL, 283. Nor is the criticism just that the complainant was in the position of one making an improper use of the written agreement, and it shows a tota] misunderstanding on the. part of the court of the plaintiff’s present position. The plaintiff was justified in believing that Joseph Delp had agreed as set forth in the plain terms of his written contract. The Master also finds that we are entirely free from any taint. Because, however, the evidence might raise a sufficient doubt in the chancellor’s mind as to whether Joseph Delp might not have misunderstood the scope of the description of the subject matter, aud considered that the lots at the upper end, beyond the road, were excluded, we declared our willingness to take what lie admitted was intended, and'stated the above as our grounds for accepting such a decree. —The agreement as written, which is claimed to be the foundation of this suit, has this as a part thereof, “and will on or before the first day of April, A. D. 1881, on the receipt of the said sum of $9,000, execute a proper conveyance thereof.” And also, “ but no party shall claim a sale until a fourth part of the purchase mone}' is paid.” The Master, in his report, seeks to change this agreement by parol thus: “The purchase money shall be paid as follows: “Samuel Delp shall pay: a promissory note dated, Bangor, December 4th, 1880, for $200, payable one day after date. Five hundred dollars of the purchase money, including above $200 note, was to be paid on or before January 18th, 1881; $4,000 to be paid on or before April 1st, 1881, including said $500, and the balance of $5,000 to be secured by mortgage payable in one year.” And the Master fails to say that one fourth of the purchase money must be paid before either party can claim a sale. In other words, according to the written agreement one fourth of the purchase money must be paid down before the sale shall be claimed. The balance of the $9,000 shall be paid down on or before the first day of April, A. D 1881. The new agreement claims a sale without the payment of a single dollar; it compels Joseph Delp to take a promissory note of $200, and a mortgage upon the property due one year after date for $5,000, and to receive in cash on or before April 1st, 1881, only $4,000. This, we submit, is a plain violation of the law that “ courts of equity will not entertain bills for specific performance of contracts with variations or additions or new terms to be made and introduced into them by parol.” This is more than a mere postponement of the time of payment, even though for that no authority can be found; that is where the time of payment is actually fixed and it is proposed to change the time by parol; this cannot be done so that specific performance will still be enforced. Much less can Joseph Delp be compelled by a parol change to accept a note of $200 and a mortgage of $5,000 payable one year after date, when it was to be $9,000 cash on or before April 1st, 1881. This would become a parol agreement. According to the authorities, a written agreement varied by parol becomes altogether parol, and the Statute of Frauds would prevent its enforcement. “ That is not a written contract, that is not self-sustaining. It is verbal if it requires verbal testimony to sustain it by proving any essential part of it. The decisions are numerous upon this point and there can be no escape from its conclusion:” Soles v. Hickman, 8 Harris, 183, and cases there cited; Hammer v. McEldowney, 10 Wr. 334, Bis. Eq., § 381. There can be no doubt that the change of the written agreement claimed by complainant to have been made by parol — even if granted — would be sufficient to prevent specific performance: Story’s Eq. page 91, § 770 n. 1; Townshend v. Stangroom, 6 Ves., 328 ; Brooks v. Wheelock, 11 Pick., 439; Dwight v. Pomeroy, 17 Mass., 328; Woollam v. Hearn, 7 Ves., 211; Hammer v. McEldowney, 10 Wr.. 334; Story’s Eq. § 767; Whiteaker v. Vanschoiack, 5 Oreg., 113 ; Jones v. Pennel, 1 Phila., 539 ; Wilgus v. Whitehead, 6 W. N. C., 537; White & Tudor’S Leading Cases, Vol. 2, part 1, p. 920 et seq.
109 Pa. 285Messinger's Appeal (1885)
1. A riparian owner may, jure naturae, divert water from a stream for the irrigation of his land, but to what extent in a particular case depends upon whether it is reasonable, having due regard to the conditions of other property owners on the stream. But an uninterrupted and exclusive enjoyment of water in any particular way for 21 years affords a presumption ol exclusive right in the party so enjoying it. 2. In 1842, A., the owner of meadow land through which a creek passed, built a low dam, dug a ditch therefrom across which he put a gate, and used the water to irrigate Ms meadows. This use, under a claim of right, continued for nearly 40 years. In 1881, B., the owner of mills located lower down on the creek, filed a bill to restrain such use of the water. It also appeared that for many years after the dam was built there was enough water in the creek both for irrigation and for the mills, so that no injury accrued to the latter by A.’s use of it, but the volume of water in the creek gradually diminished so that when the bill was filed the use of it made by A. was a serious damage to B. iu the dry season, although the dam was no higher, the ditches no larger, and the amount of water used by A. no greater, than when the dam was first built r Held, that an injunction was properly refused, because A. had acquired a prescriptive right to the use of the water in the manner set out. 8. While it is true that the time from which the period is to be reckoned, in computing the duration of a continuous enjoyment, is when the injury or invasion of right begins, and not the time'when the party causing it began that which finally creates the injury, yet this principle does not apply to the present ease, because the injury here was not caused by a change in the dam or ditches, or by applying the water to a different use, or by any late act of A., but by a continuance of that which was done by A. 40 years before. 4. The work done by A. in 1842 was open, visible and under a claim of right, and B. could anticipate the ultimate effect thereof as well as A. The fact that B. did not foresee the probable diminution in the quantity of water in the stream, could not deprive A. of Ms right acquired by long continued enjoyment.
109 Pa. 291Foster & Co. v. Runk (1885)
Error to the Court of Common Pleas of Carbon county: Of January Term 1885, No. 264. Tins was an action of covenant, by Charles M. Itunk against Charles E, Foster and Henry Beineman, trading as C. E. Foster and Co., to recover royalty for bricks manufactured and sold by the defendants, under a lease made by the plaintiff to one W. I). Tombler and assigned to the defendants. On the trial, before Meyers, P. J., the following facts appeared : By deed dated December 9th, 1863, Chas. M. Punk and wife conveyed a certain tract of land or farm to Abby Bowman; the deed containing the following reservation: “Excepting and reserving thereout unto the said Charles M. Punk, his heirs and assigns, all and all manner of metals and minerals, substances, coals, ores, fossils and also all manner of compositions, combinations, and compounds of any or ail of the foregoing substances, and also all valuable earths, clays, stones, paints, and substances for the manufacture of paints upon or under the said tract of land.” On June 14th, 1866, Abby Bowman leased and demised the said farm to W. D. Tombler, “for the purpose of manufacturing brick and putting thereon a brick factory, with the privilege of taking and using all clay and sand on said farm and premises, excepting the clay or sand within fifty feet of the house or barn.” By this lease and subsequent modifications, Tombler bound himself to manufacture two million bricks per annum and pay Abby Bowman a royalty of fifteen cents per thousand bricks manufactured and sold; a failure to manufacture said number in any one year not to work a forfeiture, unless there should be such a failure for three sucessive years. ■ Tombler assigned all his right and interest in this lease to thé defendants, December 15th, 1866. On June 15th, 1866, Runk executed a lease to Tombler by which he granted him “ the privilege and right to take from the farm, by said Runk conveyed to Abby Bowman, all the clay suitable for making brick.” This right to continue for a term of ten years with the privilege of renewal for a like period if Tombler should desire. This lease reserved a royalty to Runk of fifteen cents per thousand bricks manufactured and sold under it; the privilege to be void on failure to manufacture bricks at any one period for the space of three consecutive years as specified in the agreement made with Abby Bowman. On December 15th, 1866, Tombler assigned this lease also to the defendants; and on March 18th, 1867, the number of bricks required to be made annually was reduced to one million. The defendants renewed their lease with Abby Bowman, upon its expiration. The Runk lease was not renewed at its expiration and nothing was paid on it after December 31st, 1878, the defendants denying liability under it and claiming that their continued possession was under the Bowman lease. Runk afterwards brought this suit to recover royalties under his lease. The defendants submitted, inter alia, the following points : 1. “The reservation in the deed of C. M. Runk to Abby Bowman for the tract of land upon which this contract is founded, is confined and limited to the clay on the said land for the manufacturing of paint, and that if the jury believe that Foster and Beineman used only the brick clay, the plaintiff cannot recover in this case, and the verdict must be for the defendants.” — Refused. (First assignment of error.) 3. If C. M. Runk had ijo title under his reservation to the brick clajp but is confined to the clay, &e., used in the manufacturing of paint, he could not enter into any contract for the brick clay or grant any privilege to use the brick clay in this tract of land, and any contract made by him for this purpose would be void and of no effect.” Answer. “ As the proper construction of the reservation in the deed of Runk to Mrs. Bowman includes brick clay, the point is not affirmed.” (Third assignment of error.) In the general charge the court instructed the jury, inter alia, as follows: “By continuing in possession of the premises and manufacturing bricks after June 15th, 1876, this would constitute the defendants as tenants from year to year and make them liable to a royalty for bricks manufactured and sold according to the terms of the lease.” Verdict for plaintiff and judgment thereon ; whereupon the defendants took this writ assigning for error the answers to their points as above, and the part of the general charge quoted. The word “clay,” with all the other substances named in connection with it in the reservation, was limited to clay for the manufacture of paint. This is clear from the following clause of the reservation, “ and also all manner of compositions, combinations and compounds of any or all of the foregoing substances, and also all valuable earths, clays, stonés, paints and substances for the manufacture of paints upon or under said tract of land.” The word “ paint ” is used particularly. If it were not the grantor’s intention, to limit the reservation to clay used in making paint, the word paint is unnecessary as every other species of mineral clay is mentioned that would enter into the composition of paint or any other compound. An exception in a deed must be construed most strongly against the grantor: Grub v. Grub, 5 Out., 15; Dunham v, Kirkpatrick, 5 Out., 43; Klaer v. Ridgway, 86 Pa. St., 529. In view of this principle, aud remembering that the deed to Abby Bowman was in fee simple with a clause of special warranty, the fair interpretation is, that if Runk intended to convey this farm, as appears by his deed, the reservation was limited to the clay for manufacturing paint. Any other interpretation would render the reservation as broad as the grant, and therefore void: Shoenberger v. Lyon, 7 W. &. S., 184. The words “ for the manufacture of paints,” in the reservation in the deed from Runk to Mrs. Bowman, clearly refer to “substances ” and not to “ clays, earth, stones.” The land granted in the deed is a farm, and the reservation of mining and mineral rights, and the right of using and taking earths, elavs, stones and paints useful for manufacturing purposes, is not equal to or greater than the estate granted. The land is agricultural, and as such, all the mineral and mining rights may be reserved. Besides, the plaintiffs in error seek to place, themselves in the place of grantees in a deed from Runk. But, this is not a contention between the grantor and the grantee, and the question of the validity of the reservation does not arise in a suit upon the lease.
109 Pa. 296Penna. & N. Y. Canal & R. R. v. Mason (1885)
1. A master is bound to furnish his servants with such machinery as is reasonably safe and suitable for the work. If he employ other servants to construct or repair sneh machinery, he is responsible to his servants who use Hie machinery for any negligence in the work of construction or repairing. 2. In an action against a railroad company to recover damages for the death of an engineer and fireman upon its road caused by the explosion of the boiler of a locomotive which had recently come from the repair shops of the company and had been insufficiently repaired, the company is not exempt from liability on the allegation that the workmen in the repair shop who did the work were fellow-servants of the deceased, although it appear that they were under the same general superintendent. 8. In such action, it was not error to charge the jury that the master was bound to keep and maintain the machinery in such condition as to be reasonably and adequately safe for the deceased to be upon and use.
109 Pa. 301Seeley v. Garey (1885)
Error to the Court of Common Pleas of Sullivan county: Of July Term 1884, No. 24. Replevin, by W. C. Garey against O. A. Seeley to recover certain sawed lumber and hemlock logs. On the trial, before Ingham, P. J., the following facts appeared: By an agreement dated April 21st, 1880, Thomas L. and Win. P. Smull’sold to O. A. Seeley a certain traet of land. The agreement after describing said land and providing for the execution of a deed upon compliance with its terms, continued as follows: “It is further agreed, on the part of said Seeley, that he will peel and deliver on the cars at Dushore, in Sullivan county, Pa., for said first party, six thousand tons of hemlock bark as follows: Two thousand tons to be delivered in the year 1880, two thousand tons in the year 1881, and two thousand tons in the year 1882 ; the bark to be delivered between the 1st of June and December first of each year, said first party to pay second party four dollars per ton for bark delivered as aforesaid — three dollars per ton to be paid on the delivery of said bark, or as soon as the same is weighed or measured at the Athens tannery, in Bradford county, Pa.; one dollar per ton for all bark sold in the woods to be retained by said first party and applied on the purchase price of the land mentioned in this contract, the credit of one dollar per ton to be made on the first day of each December, beginning with December, 1880. “Second party agrees to begin the delivery of said bark in June of each year, and to deliver a reasonable portion of each two thousand tons each month up to the. 1st of December of each year. And, whereas, said first party from time to time are to advance a sufficient amount of money to said Seeley to enable him to peel and deliver the bark before mentioned; therefore said first party reserve to themselves all the sawing timber on said lot with the right to cut and manufacture the same into lumber in case the said Seeley fails or neglects to manufacture the same as hereinafter provided. The said Seeley has the right to manufacture the timber into lumber providing the same is done on said lot, and on paying to said first party the sum of seventy-five cents per thousand for lumber so manufactured, then the title to said lumber is to rest in said Seeley, and he has the right to remove the same from said premises. He is to manufacture at least fifteen hundred thousand per year, and the said sum of seventy-five cents per thousand is to be applied on the purchase price of said land and advancements above stated by said first parties, and all mills and buildings built, placed, or constructed on said lot by said Seeley for the purpose of manufacturing lumber are to become and remain a part of the realty so long as any portion of tbe purchase money of said land or advancements so made on any part thereof remains unpaid.” In pursuance of this agreement Seeley took possession of the land, cut, and peeled hemlock trees, delivered tbe bark to tbe Smulls, built a saw mill and began tbe manufacture of lumber. Subsequently, on October 7th, 1880, Seeley executed an agreement with one Thomas J. Jordan, by which he agreed to sell Jordan “ all the sawing timber” on the said tract of land, and granted him the right “ to enter upon the lands and get said timber as fast and when the same lias been peeled,” Jordan not to take timber from any part of tbe land except “where the hemlock has been peeled,” to have the right to use the mill for the manufacture of lumber, and to pay Seeley $7,000 for his privileges — $600 upon the signing of the agreement and $100 per month from December 1880 until August 1881, and $150 per month thereafter until the $7,000 was paid. Seeley reserved to himself all the hemlock bark and agreed to peel about 2000 cords per year. The agreement further provided that if Jordan should fail to perform any of his covenants, or to make payments as provided', after 30 days the agreement should become void at the option of the said Seeley who could immediately resume possession and treat Jordan as a tenant holding over after the expiration of a lease, and the unpaid consideration should at once become due and payable and the interest of Jordan in the agreement at once cease. Jordan paid the $600 hand money, and operated the mill under this contract from October 7th, 1880 until August 1881, paying the $100 per .month as stipulated. On August 11th, 1881, Jordan having failed, the sheriff, upon executions issued by F. B. Pomeroy and others, levied upon certain logs and lumber, part of the timber cut and peeled by Seeley and delivered to Jordan under the contract. Seeley entered judgment against Jordan on his contract, to No. 53 September Term 1883, notified Jordan that owing to his failure to perform his covenants, his right under the contract had ceased — whereupon Jordan went out and delivered up possession to Seeley. Smull Brothers meantime notified the sheriff that they claimed the property levied upon. An issue was formed under the Sheriff’s Interpleader Act, wherein the Smulls, F. T. Page their grantee, and Seeley were plaintiffs, and F. B. Pomeroy and other creditors of Jordan were defendants. This issue resulted in a verdict for the defendants and the judgment thereon was subsequently affirmed by the Supreme Court. Meantime W. C. Garey, purchased the lumber in controversy from Jordan at private sale and with full knowledge of the claim made by the Smulls and Seeley. Subsequently Garey purchased Pomeroy’s judgment, and brought this action of replevin against Seeley, who was then in possession, for the lumber in question which was part of that cut by Seeley before making his contract with Jordan. The plaintiff offered in evidence the contract between Seeley and Jordan “ and files in case No. 58, September Term, 1883, O. A. Seelejr vs. Thomas J. Jordan, to be followed by evidence that the property now in dispute between W. C. Garey and O. A. Seeley is a portion of the same property described in the contract of O. A. Seeley with T. J. Jordan; also, with evidence that T. J. Jordan has sold this property to W. C. Garey, the plaintiff in this suit, since the entry of that judgment, and tbe files are offered for tbe purpose of showing that tbe contractor, O. A. Seeley, had made his election of remedy under the contract; that this property was sold by T. J. Jordan to W. C. Garev since the entry of judgment upon the case No. 53, September Term, 1881, and before the bringing of this suit of replevin.” “ Defendant objects to tbe offer upon the ground that tbe evidence if true cannot affect the interest of these defendants in this properly, and that the evidence is immaterial in this issue, the suit not being between the original parties to that contract nor their privies; that it cannot affect the rights of these defendants.” The court: “Theevidence is admitted.” Exception — (First assignment of error.) Plaintiff then offered in evidence the record in the suit under the Sheriff's Interpleader Act, “For the purpose of showing that the defendants in the interpleader suit were creditors of T. J. Jordan, and levied upon the property sold to Jordan by Seeley in the contract already in evidence; that the sheriff made application to the court for the benefit of the Interpleader Act to determine who were the owners ; that the question of ownership of said property was tried and a verdict rendered by which it was found that the logs and lumber weretbe property of T. J. Jordan, and for the purpose of showing that tbe ownership of the property in the writ of replevin has been and was formerly adjudicated between the parties to this action.” Objected to as irrelevant. Evidence admitted. Exception. (Second assignment of error.) Tbe defendant offered to ask Seeley the following question :. Q. “ Whether or not on the 13th of September, 1881, or about that time, you caused notice to be served upon him (meaning Jordan) that his contract was forfeited, or anything of that kind?” “ Plaintiff objects to the question that the contract already in evidence shows that Seeley had exercised his option upon the contract. After having exercised that option he had no right to take any other course in the matter.” The Court : “ On the 13th of September, 1881, when the notice offered in evidence was alleged to have been given to Jordan, the personal property which lie had purchased from Seeley was in the hands of tbe sheriff on a levy, and Seeley was one of the execution creditors, having in the hands of the sheriff an execution to collect the balance due him from Jordan by levy and sale of that very property. ILe could not then legally enter and re-possess that property, and, therefore, his notice given to Jordan is notrelevant evidence in this case. In rejecting the evidence of Seeley’s notice to Jordan we do not reject such evidence as maybe offered to show a voluntary surrender by T. J. Jordan to O. A. Seeley of the personal ■property in dispute at any time when lie had the right to surrender it. Exception noted for defendant at whose request a bill is sealed.” (Fifth assignment of error.) Defendants then renewed this offer, with addition, “to prove by the witness on the stand that his execution referred to against T. J. Jordan, there was no levy made upon.it, and was ordered by the witness to be returned before the 13th day of September, 1881.” Mr. Dunham: “Plaintiff objects to the offer as immaterial and irrelevant, and improper evidence in this case, there being no return by the sheriff showing that the plaintiff ever attempted to relinquish any rights under that ft. fa.” Mr. Maynard: “ That is our reason; we have a right to prove it, because nothing was ever done with it.” The Court: “The court record shows that Seeley’s execution was not returned stayed by the plaintiff, and it remained in the sheriff’s hands with all legal rights pertaining thereto until the return day on the 26th of September. Parol testimony to contradict the record is inadmissible, and for this and the reason already given, the evidence is not admitted.” Exception. (Sixth assignment of error.) The defendants submitted inter alia, the following poiut: “That the contract between O. A. Seeley and Thomas J. Jordan, dated October 7th, 1880, was an executory contract; that .an executory contract for the sale of personal property does not pass the title without deliver}’ and full performance of all its terms, and replevin will not lie to enforce the terms of the contract.” Answer. — “By the terms of the contract between O. A. Seeley and T. J. Jordan, Seeley sold to Jordan the steam sawmill, and all the sawing timber on the said land, with the right .to -enter upon said land, and get the timber when the same was felled, for which Jordan agreed to pay cash at times certain. The delivery of the possession of the said sawing timber already cut down and felled by Seeley to Jordan in ao.cordance with the terms of their contract conveyed to Jordan the absolute ownership of the down timber so delivered. The portion of the contract unexecuted was executory, but nonperformance of the future conditions could not divest Jordan’s .right of property in the timber actually delivered to him by Seeley.” -(Thirteenth assignment of error.) Verdict for plaintiff and judgment thereon, whereupon the defendants took this writ assigning for error the admission and rejection of evidence, and .the answer to their point, as above set forth. The first question raised by the specifications of error is the admission of records in ease of Seeley vs. Jordan, for the purpose of allowing that Seeley had elected to proceed against Jordan by judgment and execution, and consequently could not retake possession of the property. The fact is not disputed that in August, 1881, Jordan abandoned the mill and all business connected with the property mentioned in the Seeley and Jordan contract, and the evidence all shows that he has treated the contract as at an end since August, 1881. The abandonment of the contract by Jordan was a forfeiture. His leaving the premises and not offering to comply with the contract by paying the monthly payments was an abandonment of the contract, and if Seeley took possession after Jordan had left, and Seeley was the vendor of Jordan as is claimed by the plaintiff in this case, then Jordan could not i’ecover in any form of action until he had complied or offered-to perform his covenants and agreements. Garey can rise no higher than Jordan. Jordan was to make monthly payments to Seeley. We say that each monthly failure to comply with the contract was a ground of forfeiture, and if Seeley had no right to forfeit the contract in August, he certainly had the right to do so for a subsequent breach in September, 1881. It was also error to admit the record in the Interpleader suit. The issue in that case was between Srnull, Page and Seeley, plaintiff’s, and Garey and others, defendants — the defendants being execution creditors of Jordan ; and. that issue only settled the fact that the execution creditors had the right by virtue of levies made August 10th, 1881, to soil the property as Jordan’s, and that the sheriff would not be liable for selling the same. It did not determine the rights of any subsequent execution creditors, nor did it determine any rights that the plaintiff in that issue acquired after the levy in August, 1881. Jordan was not a party to that issue: Bain v. Lyle, 18 P. ,F. S., 60. The only issue tried in an Interpleader suit is the question between the execution creditor and claimant. If Jordan abandoned his contract with Seeley after the liens of the execution attached, the title to the property reverted to the claimants, subject to the lien of the execution. And where the lien of the executions is discharged, either by payment or otherwise, the title of the claimants became complete. Again, under the law of this case the plaintiff cannot recover in an action of replevin, and the court should have affirmed the several points of the plaintiffs in error, withoutreferringto each particular point submitted-. Garey, the plaintiff below, stands no higher than Jordan. In fact, he took the assignment of the Jordan contract more than one year after he had full notice that Smulls did not sell the timber to Seeley, and that Seeley only had the right to manufacture the timber on the lot; that it was not till after it was manufactured that he had the opportunity of purchasing it, then not till he had paid 0.75 per thousand for the timber actually manufactured into lumber. Garey having knowledge of this fact stands precisely in Seeley’s shoes. Jordan could not acquire any greater right in the timber as a purchaser than Seeley had, even without full knowledge j but Garey had full knowledge of the Smull contract with Seeley because he was a party in the suit with Smull, but then he claimed to be an execution creditor. A contract may be void as to creditors of a vendee, but good as between the vendor and vendee : See the case of the Brunswick & Balke Company v. Hoover, et. al., 14 Norris, 508. Jordan was an innocent purchaser for value without notice of any claim on the part of the Smulls to any right in the timber. Garey purchased his title. By the terms of the contract Seeley was compelled to cut down the timber and peel it. The timber so felled was personal property. It was in Seeley’s possession. It was sold and delivered by him to Jordan. It was levied upon by the sheriff as Jordan’s property. It was purchased from Jordan by a judgment creditor, to secure his debt, without any notice of Smull’s claim. .It is impossible to question the legality of such a transaction. If anything could make this view of the case stronger, it consists in the fact that O. A. Seeley after receiving in payment upon his contract with Thos. J. Jordan, about thirteen hundred dollars, took advantage of the clause in his contract which permitted him on failure of any payment to elect to have the whole purchase money become due, and entered judgment for the whole amount remaining unpaid. Upon that judgment he issued execution, and that judgment has ever since that time been held over Jordan, ready to take any property of his that could anywhere be found. To compel a .man to pay for property, or what is equivalent thereto, to hold a judgment against him for it, and then deny his ownership of that property is so grossly against equity that no court can entertain such a proposition for a moment. And again, O. A. Seeley having sold this property to Thos. J. Jordan now turns around and pleads, that when he sold the same he was not the owner, and it seems to us, that from these facts he is certainly estopped from raising such a plea. When W. G. Garey undertook to get possession of the property he had honestly purchased he found it in possession of this same O. A. Seeley. He brings replevin against O. A. Seeley. O. A. Seeley pleads “property in F. T. Page, H. S. Dunham and N. K. Woodward.” And in justification of his plea claims that lie had no right to sell the property to T. J. Jordan, being bound by his previous contract with Smull Bros, not to sell it. It is immaterial whether Seeley ordered liis writ returned or not, because he was at liberty to issue another whenever he pleased.
109 Pa. 312Burgess v. Burgess (1885)
Error to the Court of Common Pleas of Bradford county : Of January Term 1885, No. 285. Assumpsit by Russell P. Burgess, administrator, d. b. n. of Eben G. Terry, deceased, against Austin P. Burgess, administrator, c. t. a. of George Terry, deceased, to recover damages for the breach of an alleged contract to devise real estate. On the trial the following facts appeared: In 1869 George Terry, then about seventy years of age, owned and lived upon the land in question. His son, Eben Teny, then twenty-nine years of age, with bis wife and child, lived on the farm with his father, having had his home there from childhood. The plaintiff claimed that during this year 1869 George Terry agreed to devise to Eben all that part of the farm tying on the west side of the river road, except about fifty acres on the extreme western end, in consideration of which Eben was to maintain and take care of his father and mother during life. Eben, however, died August 15th, 1875, leaving a widow and minor children. George Terry died September 18th, T878, about two weeks after his wife’s death, leaving a will dated February 18th, 1878, by which he devised the land in question to another son, N. Willis Terry, who moved to his father’s house and farm after Eben’s death, aud took care of his parents until they died. To establish the alleged agreement by George Terry to devise the land to Ebeu, the plaintiffs offered the following evidence: Uriah Terry, nephew of George Terry, testified that: George Terry came to him in 1869 with a deed to Eben for the said land, and asked Uriah to witness it; but he declined, and advised George to keep his property in his own hands; that George afterwards talked to witness about making a will giving the land west of the road, except 50 acres, to Eben, in consideration of the latter’s caring for him and his wife during life. Uriah further testified that the Sunday after Eben's death, he was helping George Terry turn Eben’s cattle into the field; that George said: “ 1 want to do justice between all my graudchilden, and what disposition to make I do not know. If they were old enough to carry out the provisions I made with their father . . . . ; I never expected to have any of this thing come into my hands again. Eben was to do all these tilings, and he did it to my satisfaction.” Two other witnesses, Miller and Bowman, testified that they signed a will, as witnesses, for George Terry in 1869; that he read it over in their hearing, and by it devised said land to Eben, who was to take care of and maintain his father and mother during their lives. All three witnesses testified that, after the execution of this will, Eben took charge of and managed Jliis part of the farm as his own; erected a valuable barn, stumped certain fields, put the stumps in fences, cleared about twelve acres and dug ditches. The witnesses placed the value of these improvements at about SI,500. J. B. Horton, a merchant, testified that Ebeu told him to let his father have*such things as he wanted out of the store, and that he would pay for them, which was done. The evidence further showed that Eben did take care of liis father and mother from 1869 until liis death, when George Terry took N. Willis Terry into his family; and further, that the use of the farm was worth about fifty dollars a year more than the maintenance of George Terry and liis wife. The plaintiff claimed as damages, the value of the work and labor of Eben on the farm, and of the improvements he put on it, less the value of the materials he took from the farm in making said improvements, and less, also, fifty dollars a year for the use of the farm in excess of the cost and expense of caring for his parents. The defendant set up the following grounds of defence *. First. The alleged contract was single and entire, and was not fully performed. Second. The evidence is not so direct, certain and positive as the law requires, to establish such a contract between father and son. Third. The claim is barred by the Statute of Limitations. Fourth. If the contract is proved the plaintiff’s damages are only for what he expended in the support of George Terry and wife, and it appearing that the use of the farm was worth more than such support, plaintiff cannot recover. The court refused to affirm points submitted by the defendant embodying this defence, and charged the jury, inter alia, as follows: “I therefore submit the question, “Did George Terry prevent, disaffirm or waive a performance of the contract after Eben’s death? If he did the plaintiff may recover so far as relates to this objection. If he did not he cannot recover. The evidence of Miller and Major Terry is that Willis Terry came in immediately after Eben’s death, and thenceforth took charge of the farm and cared for his father and mother until they died, this evidence is uncontradicted, and is submitted to you to find whether there was a waiver or disaffirmance or not......The plea of the Statute of Limitations is not a bar. It is true Eben died August 15th, 1875, and this suit was not brought until March 9th, 1882, but George Terry died September 18th, 1878, and no letters were issued upon his estate until August 10th, 1881. The statute does not begin to run until the right of action accrues. It did not begin in this case to run until the death of George Terry. I think I may safely (say) this from the rule in the cases of Bash v. Bash, 7 Barr, 260, and Marsteller v. MarSteller, 12 Norris, 350......By this evidence the plaintiff claims to have established such arrangement or contract as entitles him to recover as damages the value of the work and labor of Eben on the farm, and for the improvements he put upon it, less the value of the materials he took off the farm in erecting these improvements, and less also $50 a year, the use of the farm in excess of the cost and expenses of caring for and maintaining his parents. The alleged contract between George Terry and Eben was executory, and hence the measure of damages is the value of his labor, and the improvements put upon the farm, less the value of the materials taken off the farm and put into the improvements, and less also $50 a year, the value of the farm over and above the cost of supporting George Terry and wife, provided you find Eben relied upon the contract m making the improvements.” Verdict for plaintiff and judgment thereon, whereupon the defendant took this writ, assigning for error the refusal of his points, and the parts of the general charge above cited. Tho evidence fails to disclose any express or positive contract. It does not show that the son over saw the will of 1869, or knew its provisions. It does not show that the minds of father and son ever united on its terms, or agreed upon its obligations. There was no change in- the household. The son had always lived at home, and things went on after the will just as before. The money which paid for the improvements and taxes was derived from the farm. It was clearly error, under the cases, to permit the jury to infer a contract between father and son upon the strength of such evidence: Poorman v. Kilgore, 87 Pa. St., 309; Shell-hammer v. Ashbaugh, 2 Norris, 24: Harris v. Richey, 6 P. F. S., 395; Miller’s Appeal, 4 Out., 571. The relation between the parties prevents an implied assumpsit to pay for services : Lynn v. Lynn, 5 Casey, 869; Smith v. Milligan, 7 Wr., 107 ; Duffey v. Duffey, 8 Id., 399; Schoch v. Garrett, 19 P. F. S., 144. -There was direct, positive and uncontradicted evidence of a contract between the father and son, testified to by Miller, Bowman and Uriah Terry; they testified to the contract and the making of a will in pursuance of it. The acceptance of the contract was fully shown by the acts of Eben Terry, and the admissions of his father. The evidence of the witnesses was that after the first will was signed, Eben G. Terry assumed control and ownership a.s he had never done before, had the land assessed to himself, paid the faxes, store bills, etc., giving orders to merchants to let them have whatever they called for on his account, built upon the farm, cleared the land, pulled the stumps, and improved the farm in many other ways, and tenderly and generously cared, and provided for his father and mother, until his death; the old gentleman over and over again, both before and afterwards, telling what the contract was, and his entire satisfaction with it. In the case of Hertzog v. Hertzog, 5 Casey, 465, the court says: “ we concede that in a case of this kind an express contract may be proved by indirect or circumstantial evidence. If the parties kept accounts between them these might show it.” In Hess’ Estate, 13 Phila., 285, the court distinctly recognize the principle that an express contract may be proved in such cases by the unequivocal acts of the decedent: See also Miller’s Appeal, 4 Out., 568.
109 Pa. 319Mason v. Rogers (1885)
1. Interest, which tlio vendor of land sold subject to a life estate covenants to pay his vendee on instalmenls of purchase money paid by the latter, until he is put in possession, is not in the nature of rent. The claim therefor is ])ersonal; neither running with die land nor becoming a lien thereon for the amount unpaid, and does not pass to the purchaser of the land at a sheriff’s sale of the vendee's interest. 2. A. bought lands of B., subject to the life estate of C. By an agreement under seal between the parties, A. was to pay the purchase money in instalments and was not to have possession until C.’s death. If C. died before all the instalments became due A. was to pay B. interest, from that time, on those still due; on the other hand B. agreed to pay A. interest on instalments paid by the latter from date of payment until O.’s death. B. gave A. a deed, and the latter gave notes for the purchase money, which B. sold before maturity. A. paid the notes which matured, and B. paid him interest on the amounts thus paid, until the land was sold at sheriff's sale under a judgment against A., when B. refused to make further payments. A.’s’outstanding notes for purchase money wore paid out of the proceeds of this sale. A. then brought suit against B. (C. being still alive), for interest on the former’s payments of purchase money, made before the sheriff’s sale. Held, that A.’s claim against B. was personal, and was not transferred to the purchaser at the sheriff’s sale nor affected thereby, but would terminate only when a right of possession accrued to A. or his successor in title, by the death of C.
109 Pa. 323Penny's Appeal (1885)
A testator in an inarlifloially drawn will devised and bequeathed, (1) all his property real and personal to his wife for life; (2) after her death to his daughter A., “ all Ms property real and personal that shall be left at the decease of his wife ”; (3) pecuniary legacies to his son and daughterB. (4) the residue of his estate to his said daughter A. The personal estate, after the death of the widow, being insufficient for the payment of the legacies, one of the legatees sought to compel payment of his legacy out of the real estate. Held, that there was nothing in the will to create by implication a charge of the legacy on the real estate.
109 Pa. 326Stroud's Appeal (1885)
A judgment debtor in good faith purchased claims, not in judgment, against his creditor, more than sufficient to pay off the amount of the judgment. An assignment for the benefit of creditors having been made by the creditor, the debtor obtained a rule to show cause why the judgment should not be opened, in order that he might set off the claims he had acquired, as an equitable defence thereto: Held, that the rule was properly discharged.
109 Pa. 330Wells v. Van Dyke (1885)
1. In Pennsylvania a mortgagor may bring ejectment against a mortgagee in possession, and the aetion’is governed by the same equitable principles which apply in the case of a bill in equity to redeem. 2. In such an action the question of payment, and of accounting for rents and profits up to the date of the trial, is for the jury. If the jury find that the mortgage has been paid in full, the verdict will be for the plaintiff unconditionally; and if the jury find that a balance remains due on the mortgage the verdict will be for the plaintiff, conditioned that he pay such balance, with interest and costs, within a time specified. 3. In an action of equitable ejectment by a mortgagor against a mortgagee in possession, it appeared that a balance remained due and unpaid on the mortgage. By direction of the court, the jury found a verdict “for the defendant, to be set aside and judgment entered for the plaintiff on his paying the balance due within six months with interest and costs.” The court being subsequently of opinion that the plaintiff could not recover unless the mortgage debt was fully paid, entered judgment for defendant absolutely. Held, that although the form of the verdict was incorrect, its meaning was plain, viz: in favor of the plaintiff conditioned upon his paying the balance within six months; and it being in that form correct, the Supreme Court, on writ of error, would consider it as so entered, and would enter final judgment thereon, the time of payment being extended to six months from date of such final judgment. 4. The ordinary rule that a mortgagee in possession will be allowed credit only for such expenditures as are necessary to keep the mortgaged premises in proper repair, is not inflexible, and where the circumstances show that expenses for renewal, improvement and alteration of buildings or machinery, were necessary and beneficial for the proper use of the property, such credits may be allowed. In the present case, the mortgaged premises being a grist mill, evidence that the introduction of a new and improved form of “refiner” by the' mort- ■ gagee in possession for which he claimed credit was necessary in order to ran the mill in successful competition with other mills which contained similar improved machinery, was held to have boon properly admitted.
109 Pa. 337In re Contested Election of Law Judges (1885)
Appeals from a special Court-of Common Pleas held in Butler county: Of October and November Term-1885,'No. 37. (1) Appeal of James Bredin from a decree of said court dismissing the petition of certain electors of Butler county, contesting the return of election for law judges for the Seventeenth Judicial District, held November 4th, 1884.
109 Pa. 349Biddle v. Girard National Bank (1885)
Error to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term 1884, No. 229. This was, in the court below, a scire facias sur judgment in foreign attachment. The material facts were as follows: On March 22d, 1837, a writ of foreign attachment in case was issued in the old District Court for the city and county of Philadelphia, at the suit of Washington Jackson, John S. Riddle and Michael B. Mahoney, trading as the firm of Jackson, Riddle & Co., against William Sidney Warwick and Thomas Claggett, lately trading as the firm of Warwick & Claggett. The defendants were residents of London, England. The sheriff returned, “Attached and summoned United States Bank, also The Girard Bank as garnishees.” On March 3d, 1838, judgment was entered for plaintiffs, against the defendants, by default, and on a writ of inquiry of damages, damages were assessed J une 29th, 1838, at $43,555.23. On October 23d, 1838, a scire facias on the above judgment was issued, returnable to the first Monday of November then next, by the plaintiffs in the judgment against the Bank of the United States and the Girard Bank. On May 8th, 1845, the garnishees filed a plea of nulla bona. A trial was had against the Bank of the United States, as upon a scire facias against that garnishee alone, and judgment was recovered for plaintiff against said Bank of the United States in 1849. The docket entries showed no further proceedings until in 1879, the deaths of the plaintiffs, Jackson and Riddle, were suggested of record, and in 1881 Thomas A. Biddle, assignee in bankruptcy of the plaintiffs, Mahoney and Riddle, was substituted of record as plaintiff. In 1883 the issue on the scire facias against the Girard National Bank, garnishee, came on for trial before Ludlow, P. J., in the Court of Common Pleas No. 3, of Philadelphia county, to which court the records of the case in the old District Court (abolished in 1874) had been assigned, the parties being as follows: “ Thomas A. Biddle, assignee of Michael B. Mahoney and John S. Riddle, who with Washington Jackson, were trading under the firm name of Jackson, Riddle & Co. v. The Girard National Bank, garnishees of William Sidney Warwick and Thomas Claggett, lately trading under the firm name of Warwick & Claggett.” On the trial it was shown by the plaintiffs, after putting the docket entries in evidence, the other r.ecords having been proved to be lost, that 500 shares of stock had been in the possession of the Girard Bank in 1837, belonging to the defendant Warwick, when the attachment was laid; that it had continued in their hands in Warwick’s name from that time until 1878; that the bank had credited annually the dividends arising from the same to Warwick till 1878 ; that in certain of the dividend books opposite to the entry of dividends, were written the words, “ Don’t pay,” “not to be paid,” in 1887 and 1838; that the Girard Bank suspended payment, made an assignment in 1841 for the benefit of its creditors, and a reassignment was made to it somewhere about 1846, and it did not credit any dividends to Warwick from 1838 until 1849, when payment was resumed. The plaintiffs then rested. The defendants made certain offers to the effect that the Messrs. DeRothschilds Fréres, and Messrs. Weston & Young, had filed certain bills in equity against the Bank of the United States and the Girard Bank and Jackson, Biddle & Co., praying that a decree might be made for the transfer of the aforesaid stock, and the attachment suit set aside; that Jackson, Riddle & Co. filed pleas to these bills, setting up their foreign attachment as a bar thereto. The defendants further attempted to show certain papers alleged to be copies of answers of the Girard Bank to the interrogatories of Jackson, Riddle & Co., in which it was stated- that the bank held the above stock, but that it was claimed by Messrs. De Rothschilds Frdres, of Paris, and Messrs. Weston & Young, of London, and adding that they, the Girard Bank, were “ merely stakeholders and having no interest in the controversy.” Both these offers of: evidence were excluded. The docket entries in the case disclosed appearances on behalf of the Rothschilds and Messrs. Weston & Young. The defendant requested the court to charge, inter alia, as follows: 3. - It appearing from the record that in 1837, Jackson, Riddle & Co. commenced an action against Warwick & Claggett, in foreign attachment, in which the Girard Bank and others were summoned as garnishees, in which a judgment against defendants was taken by default on June 29th, 1838; and on October 23d, 1838, this scire facias issued on the said judgment. That the answers of the Girard Bank to interrogatories, now lost, were filed in 1845, and a plea of nulla bona appears upon the record on May 8th, 1845. That at the time the said attachment was laid in the hands of the Girard Bank, William Sidney Warwick was the owner of stock in that bank, which stood in his name on the books of the bank; that after the attachment was so laid, dividends declared on the said stock were not paid, but instead, in the years 1837 and 1888, the words, “not to be paid,” or “don’t pay,” were written opposite the entry of the dividends declared in those years. That subsequently, about 1841, the Girard Bank assigned all its assets for the benefit of its creditors; that a re-assignment to the bank was made about 1846, and dividends resumed in November, 1849. That in the dividend book, opposite all dividends declared subsequently to those above mentioned, the words “passed to the credit,” or “account,” of William Sidney Warwick were entered, and the dividends were credited to his account in the Girard Bank. That this continued up to October, 1878, when the stock was sold. That said stock, from the date of the attachment until October, 1878, continued in the name of William Sidney Warwick on the books of the bank. That no immediate step in the cause was taken, as per record appearing. That on March 18th, 1879, the death of Washington Jackson and John S. Riddle was suggested on the record, and additional interrogatories and a rule on the Girard Bank to answer were filed, and subsequently Thomas'A. Biddle, assignee of M. B. Mahoney and John S. Riddle, was substituted on the record as plaintiff. Whether, without more facts proved, this case is presumed to be abandoned and discontinued, and all liability on the part of the Girard Bank on account thereof presumed to be at an end.” This point the court reserved. The court charged, inter alia, as follows: “It appeal’s by the evidence submitted by the plaintiffs in this suit, that five hundred shares stood in the name of Mr. Warwick, and many years ago, I think in the dividend book No. 8, in November, 1836, a dividend of $1,000 was declared, and that since then, from time to time, dividends have been declared upon this stock, and have been passed to the credit of Mr. Warwick on the books of the Girard Bank. It also appears that, from time to time, there were memoranda, in pencil, such as the following: ‘Not to be paid,’ showing that that cash was not to be disposed of, and not to be paid to anybody, for some reason. Then, again, in another book, No. 10, we have the words in pencil, ‘don’t pay,’ and so on through the records of the bank, showing the stock still standing in the name of Warwick, and dividends declared upon it, up to fifty-five in number, until in May, 1878, the grand total of dividends was $18,956.25. “ The shares, which had originally numbered five hundred, had in the meantime been reduced, by reason of the reduction of the capital of the bank, and its failure, and its starting again, to one hundred and twenty-five shares, and these were sold at fifty-eight dollars a share, the amount of which sale, together with the total of dividends unpaid, make an aggregate of $26,206.25. It also appears that this stock stood in the name of Mr. Warwick from September, 1836, to October, 1878. Well, gentlemen, if that stock belonged to Mr. Warwick, was levied upon in the hands of the bank by the creditors of Mr. Warwick, who are the plaintiffs in this suit, then, unless that fact is disputed, or in some way is overthrown, there was in the hands of this bank in 1878 this amount of stock of a certain value with accumulated dividends. If there is nothing else in the case, that must inevitably be tbe result. An effort has been made here on the part of the defence to produce certain testimony which was intended to overthrow the claim of the plaintiff in this suit, by reason of the presumptions arising from the lapse of time. Principally that was the object of the defence. I have ruled out this testimony as it has been offered, intending thereby, among other things, to reserve that question of presumption and the correctness of my own ruling for tbe consideration of my colleagues and myself in the court in banc, simply saying for the present that, upon all the evidence, the presumptions are not move violent upon the one side than upon the other, and are not stronger upon the one side than upon the other, and therefore, we are thrown back upon the records as they stand before us, both of the court and of the bank, and the proof of the plaintiff shows that, whatever may have been tbe litigation, the Girard Bank claimed down to 1878 an ownership of this stock, and that it was sold at that time as tbe property of the bank. “ As the case now stands before tbe court, there seems to be no evidence from which tbe jury could find that the stock was not in Warwick, was not subject to the attachment thus levied, and that there did not remain in the hands of the bank, in 1878, whatever the value of that stock then was, together with the dividends which had accrued from time to time, and that the plaintiff, if the jury so find from the evidence (and there is nothing that 1 can see to contradict it), would uot be entitled to a verdict for that amount, with interest thereon from October, 1878. You liave the calculation in your hands. If you find a verdict for the plaintiff, you will find ‘a verdict for the plaintiff, amount of fund iu the hands of the garnishees — so many dollars.’ ” Verdict for plaintiff for $32,888.85, the amount found to be in the hands of the garnishee. Subsequently7 tbe court entered judgment for the defendant on the point reserved. The entry on the docket was as follows: “ Rule for new trial absolute, and judgment entered in favor of the defendant on third reserved point.” The plaintiff thereupon took this writ of error, assigning for error, inter alia, the action of the court in entering judgment for the defendant non obstante veredicto, on the point reserved.
109 Pa. 359Sparrow v. Kohn (1885)
Error to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term 1884, No. 278. Assumpsit, by Isaac Kohn, Benj. W. Fleisher, Simon L Kohn and Samuel Kohn, trading as Kohn, Adler & Co., against Sparrow, Venino & Co., to recover arrears of rent on a verbal lease. On the trial, before Ludlow, P. J., the following facts appeared : The plaintiffs were a Philadelphia firm, engaged in the millinery business, having a branch office in New York. On May, 1882, they rented a vacant part of their building in New York to the defendants, by a' verbal lease, for nine months, at $100 per month. The defendants occupied the premises for four months, when they vacated the same, and this suit was afterwards brought to recover rent for the remaining five months. At the time the lease was made Adler was dead, and there was no person of that name in the plaintiff firm, although they continued to do business under the old firm name. The defendants set up that the contract, having been made in New York, was subject to the laws of that state, and was void under the following statute: N. Y. P. L. for 1833, chap. 281: An Act to prevent persons from transacting business under fictitious names. Sec. 1. No person shall hereafter transact business in the name of a partner not interested in the firm; and where the designation “and company” or “and Co.” is used, it shall represent an actual partner or partners. See. 2. Any person offending against the provisions of this Act shall, upon conviction thereof, be deemed guilty of a misdemeanor, and be punished by a fine not exceeding one thousand dollars. It was admitted that the verbal lease sued upon was to be interpreted according to the laws of the State of New York. The court refused to enter a nonsuit at the motion of the defendants, and instructed the jury to fiud a verdict for the plaintiffs. Judgment was entered on this verdict, and a motiuu for a new trial overruled by the court, whereupon the defendants took this writ, assigning for error the instruction of the court directing the jury to find for the plaintiffs. By its terms, the New York statute fully covers the present case, and it has been held>' that the phrase therein forbidding “the transaction of business” applies to the making of contracts by the fictitious and illegal name: Swords v. Owen, 48 How. Pr., 176. Even the continuation of a firm’s name by the executors and survivors of a deceased partner, who had instructed them by his will to carry on the business, was held a violation of the statute: Lane v. Arnold, 18 Abb., N. C., 75. The case of Wood v. Erie R. R. Co., 72 N. Y., 196, is clearly distinguishable from the present case. There the plaintiff, who was doing business in the firm name of “Wood Bros.,” contrary to the provisions of the Act of 1833, shipped his individual property, a carriage, by the defendant’s road, and it was badly injured through the negligence of the company. Wood brought suit in his individual name against the company, and it was held that he could recover, because he brought suit for a tort committed against property consigned to him. The case decides that although all transactions of a firm doing business under a fictitious name, contrary to the Act of 1883, are void, yet an individual transaction by a member of such firm is not avoided. Moreover, in New York as in Pennsylvania, it has always been held that no action for breach of contract can be maintained upon a transaction either explicitly forbidden by law, or to the doing of which a penalty is affixed: Hallett v. Novion, 14 Johns., 273 ; Griffith v. Wells, 3 Denio, 226; Pennington v. Townsend, 7 Wend., 280. The New York Act of 1833 is entirely penal in its character, and must be strictly construed. It reads: “No person shall hereafter transact business .....” The contract in this case is based upon a letting of a part of real estate occupied by the appellees, who were never engaged in the real estate business, or any branch thereof, but were and are a Philadelphia firm engaged there in the millinery business, and the letting of the premises in question was entirely extraneous to the business they carried on. It certainly cannot be said that if the owner or lessor of a house rents part of that house, which is vacant, that lie is engaged in the real estate business. The statute was not intended-to regulate every little transaction made by an individual or individuals, but only such contracts appertaining to the business he or they follow. It was enacted to prevent frauds being practised upon third persons dealing with an individual or a firm, and this statute has been fully construed by the Court of Appeals of the State of New York in the case of Wood v. Erie R. R. Co., 72 New York R., p. 196. Though this case is one in tort, yet the ceurt, in its elaborate opinion, have construed the statute generally, a§ applicable to any and all eases. It is evident that no fraud has been practised on the plaintiff in error, neither have, or could they in anywise be damaged by a contract, of the nature of, and executed in the manner and form, as the one in question.
109 Pa. 363Culp v. Commonwealth (1885)
1. The GasWorks constitute one of the agencies or departments of the city of Philadelphia, similar to the Water, Health or Fire departments of the city government, and the persons employed by the trustees of the Gas 'Works, are, in the discharge of their duties, employees of the city and as such amenable to indictment under the Act of June 12th, 1878, (P. L. 196), for embezzlement of funds coming into their hands in pursuance of said employment. 2. Such an indictment found within four years from the time when the misdemeanor was committed, is valid under See. 6, of said Aet, and is not barred by the General Statute of Limitations of March 31st, 1860.
109 Pa. 372Haddock v. Grinnell Manufacturing Corp. (1885)
Eiixtor to the Court of.Coinmon Pleas No. 3, of Philadelphia county: Of January Term 1885, Nos. 238, 239, 240, 241, 242 and 243. Six actions of assumpsit, as follows : The Grinnell Manu- facturing Corporation against Henry Vanuxem, W. Moore Wharton, Stanley B. Haddock, and Daniel Haddock, Jr., co-partners, now or late trading as Vanuxem, Wharton & Co., to recover on certain acceptances. Mary Kieruan, to tlie use of Alexander B. Renshaw, against same, to recover amount of due-bill. Samuel Hutchinson and Emanuel Ogden, trading as Hutchinson & Ogden, against same, to recover on note. II. Miles, to the use of Alexander B. Renshaw, against same, to recover on due-bill. Alexander R. Dewitt, to the use of Alexander B. Renshaw, against same, to recover oil due-bill. M. E. Crider, to use of Alexander B. Renshaw, against same, to recover on due-bill. Daniel Haddock, Jr., who claimed to be a special partner in said firm, and not liable as a general partner filed affidavits of defense similar in each case as follows: Daniel Haddock, Jr., being duly sworn, says that he is one of the defendants in the above case; and that he has a full defence to the plaintiff’s claim upon the acceptances, copies of which have been filed in the ease, the nature and character of which are as follows, viz.: That the deponent did not make or sign the said acceptances, or either of them, or authorize the same to he made or signed in any such manner as that he should be liable thereon as a general partner, that he the deponent is not and was not when the said acceptances were made and dated, or at any prior time, a general partner in the said firm of Vanuxem, Wharton & Co., but was a special or limited partner therein, by virtue of articles of agreement between his co-defendants and himself, recorded in the office of the recorder of deeds for the county of Philadelphia, in Limited Partnership-Book No. 5, page 207, &c., and in the same book, page 305, &c. That the said limited partnership was duly and properly formed under the provisions of the Act of. Assembly of the Commonwealth of Pennsylvania, approved the twenty-first day of March, A. D., 1836, and its supplements, to continue for the term of one year from the first day of January, A. D. 1882, and the same was extended by the articles recorded on page 305 of the said book, for the further term of two years from the thirty-first day of December, A. d. 1882. Copies of the said agreements as recorded are hereto attached. The deponent, therefore, submits to the court,-that his name should not have been inserted in the plaintiff’s writ as a general partner, and that he is not liable in this action as such. Sworn and subscribed etc. D. Haddock, Jr. - Original Certificate. — Yanuxem, Wharton & Co. This is to certify to all to whom these presents shall come that we whose names are hereto subscribed, to wit: Henry Vanuxem, of the city of Camden, state of New Jersey; William Moore Wharton and Stanley B. Haddock, both of the city of Philadelphia, state of Pennsylvania, commission merchants, and' Daniel Haddock, of the said city of Philadelphia, gentleman, have entered into a limited partnership for the business of selling and dealing in dry goods on commission or otherwise in said city of Philadelphia, within the state of Pennsylvania, under and by virtue of an Act of the General Assembly of the said Commonwealth, passed the twenty-first day of March, A. D. 1836,- entitled “ Air Act relative to limited partnerships,” and all and singular the supplements thereto, upon the terms, conditions, and liabilities hereinafter set forth, to wit:— I. The said partnership is to be conducted under the name or firm of Yanuxem, Wharton and Company. II. The general nature of the business intended to be transacted by the said firm or partnership is the selling and dealing in dry goods on commission or otherwise in said city of Philadelphia. III. The general partners in the said firm are Henry Yanuxem, residing at No. 229 North Third street, in the city of Camden, state of New Jersey; William Moore Wharton, residing at 709 Locust street, and Stanley B. Haddock, residing at No. 1933 Spring Garden street, both in the said city of Philadelphia; and the special partner is Daniel Haddock, Jr., residing at No. 806 Pine street in said city of Philadelphia. IV. The said special partner has contributed to the common stock of the said firm the sum of fifty thousand (150,000) dollars in cash. V. The said partnership is to commence on the first day of January, A. D. 1882, and is to terminate on the thirty-first day of December, A. r>. 1883. Made and severally signed by the said partners at the city of Philadelphia, the thirty-first day of December, A. D. 1881. D. Haddock, Jr., Henry Vanuxem, W. Moore Wharton, Stanley B. Haddock. (Acknowledged December, 31st, 1881.) City and County op Philadelphia, as. Before me the subscriber, a notary public for the Commonwealth of Pennsylvania, residing in and for the city and county of Philadelphia, personally came and appeared on the thirty-first day of December, A. D. 1881, Henry Vanuxem, afore named, one of the general partners in the firm of Vanuxem, Wharton & Co., referred to in the preceding certificate, and being duly sworn he did depose and say that the sum specified in the said certificate to have been contributed by the special partner therein named to the common stock, to wit, fifty thousand dollars by the said Daniel Haddock, has been so contributed and actually and in good faith paid in cash. Henry Vanuxem. Sworn and subscribed to before me tbe day and year aforesaid. Charles W. Sparilawk, [seal] Notary Public. Affidavits of publication of notice in three newspapers, Evening Telegraph, North American, and Legal Intelligencer, filed February 17th, 1882. Renewal Agreement. Vanuxem, Wharton & Co. This agreement, made tbe sixth day of January, A. D. 1883, between Daniel Haddock, Jr., of tbe first part; Henry Vanuxem, of the second part; William Moore Wharton, of the third part, and Stanley B. Haddock, of the fourth part, each for himself, his heirs, executors, and administrators, to and with tbe other and others, his or their executors and administrators, Witnesseth, That whereas on tbe thirty-first day of December, A. D. 1881, the parties aboved named, by certain articles of agreement, associated themselves in a limited co-partnership under the Act of Assembly of the Commonwealth of Pennsylvania, approved the twenty-first day of March, A. D. 1836, and the several supplements thereto, for the purpose of selling and dealing in dry goods on commission, &o., tinder the firm name and style of Vannxem, Wharton and Company, for the term of one year from the first day of January, A. D, 1882, said articles of limited co-partnership being recorded agreeably to the provisions of the said Act of Assembly, in the recorder’s office in the city of Philadelphia, in Limited Partnership-book, No. 5, page 207, on the thirty-first day of December, A. D. 1881. Ancl Whereas, Said limited co-partnership did expire by limitation the thirty-first day of December, a. d. 1882, Now this Agreement Witnesseth, that the above-named parties do by these presents mutually covenant and agree to and with each other, their respective heirs, executors, administrators, and assigns, to continue the said limited co-partnership as agreed upon in the above-mentioned articles of agreément, recorded as aforesaid, for the further term of two years from the thirty-first day of December, A. D. 1882, according to the several covenants, agreements, and stipulations contained in the original articles of agreement herein referred to. In Witness Whereof,\ We have hereunto set our hands and seal this day of January, A. D. 1883. Sealed and delivered in the presence of Daniel Haddock Jr.,-[seal Henry Vanuxem, [seal W. Moore Wharton, ‘seal Stanley B. Haddock, [seal Acknowledged January 6th, 1883. Affidavits. City and County of Philadelphia, ) State of Pennsylvania. \ Before me the subscriber, a notary public for the Commonwealth of Pennsylvania, residing in Philadelphia, personally appeared Daniel Haddock, Jr., who upon being duly sworn according to law, says that the sum contributed by him as special partner in the firm of Vanuxem, Wharton & Co., viz., the sum oftfifty thousand dollars, is not withdrawn or impaired, but is to remain in the said firm according to the provisions of an agreement this day made for the continuance of the said co-partnership. Sworn and subscribed before me this sixth day of January, A. D. 1883. V Charles Hazlehurst, Notary Public. y Daniel Haddock, Jr. [seal.] City and County or Philadelphia, ) State oe Pennsylvania. J Before me, a notary public for the Commonwealth of Pennsylvania, residing in the city of Philadelphia, appeared Stanley B. Haddock, one of the general partners referred to in the foregoing certificate of continuance of co-partnorship, and being duly sworn says that the sum of fifty thousand dollars specified in the original articles of co-partnership referred to in the foregoing certificate to have been contributed by the special partner, Daniel Haddock, Jr., to the common stock of the said firm of Vanuxem, Wharton & Co., has been so contributed, and remains in the common stock of the said firm, as contained in the foregoing agreement. Sworn and subscribed before me, this sixth day of Jan- | muy, a. d. 1883. )- Stanley B. Haddock. Charles Hazelhubst, ] Notary Public. ) Affidavit of publication of notice advertised in Legal Intelligencer■, livening Telegraph, and North American, filed February 17th, 1883, recorded January 6th, 1883. The plaintiff in each case took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, which rules the court, after argument, made absolute, Ludlow, P. J., filing the followiug opinion :— The question presented in this case is a single one, and we think can be answered by an attentive consideration of the Acts of Assembly bearing upon the cause. The legislation which was intended to limit the responsibility of a partner, imposed upon such a partner a strict compliance with certain prerequisites; to neglect these was to destroy that protection which the Act of Assembly was intended to afford. The reason for the enactment of the law at all renders anything but a strict construction of this legislation manifestly unjust to the public. At an early day the courts insisted upon this strict construction of the law, and this policy has not been changed. When the original articles of co-partnership in this case were executed, every requirement of the law was observed. When the original partnership expired a new agreement was made, which we think is defective in several particulars. 1st. In point of time, the continuity was broken, when six days were allowed to elapse between the termination by limitation of the one contract and the formation of the new one. While we do not rest our opinion entirely upon this point, yet with the decision in Andrews v. Schott, 10 Barr, 47, before us it is difficult to preceive bow we could avoid its effect, if nothing else appeared in the cause. 2d. In addition to what has been said, another and more serious difficulty appears in that the requirements of the twelfth section of the Act of 1836 have not been complied with. This section provides that “ Every renewal or continuance of such partnership beyond the time originally fixed for its duration shall be certified, acknowledged, and recorded, and an affidavit of a general partner made and filed, and notice be given in the manner herein required for its original formation, and every such partnership which shall be otherwise renewed or continued shall be deemed a general partnership.” The certificate of renewal omits reference to special capital. The affidavit of the general partner neglects to state in what form the special capital contributed remained in the new firm, whether as cash or merchandise. The affidavit of the alleged special partner being entirely unnecessary, we do not notice, although it also is. defective. If the whole object of the legislation now under consideration was to provide accurate and reliable information for the public, in any case in which exemption from general liability was the object to be accomplished, in an original agreement of co-partnership, the same reason we think applies with additional force where a renewal or continuance of such partnership is contemplated. The fact is, these laws give special immunity from liabilitjq hence any defendant who seeks protection must show that he has strictly complied with the express mandate of the law. All the decisions, from Richardson v. Hogg, 2 Wr., 153, to Bank v. Gruber, 14 W. N. C., 12, are in the same direction, and we cannot do otherwise than enter judgment for want of a sufficient affidavit of defence. Rule absolute in each case. The defendant Daniel Haddock, Jr., took a writ of error in each case, assigning for error the action of the court in entering judgments for want of sufficient affidavits of defence. The court below thought that the affidavit was defective, because it “ neglects to state in what form the special capital contributed remained in the new firm, whether as cash or merchandise.” When the firm was permitted by the legislature to renew, it was permitted to continue to use the stock in the shape in which it happened to be at the time the former articles expired. The public knew, when it was announced that there had been a renewal, that there had not been, and could not have been, a contribution of new or additional capital in the shape of either cash or merchandise, but that there had been an agreement to continue to use the common stock to which cash or merchandise had been originally contributed. To have announced, or sworn, that the special partner had made such contribution, or that he had done anything more than to agree to renew, would have been false. The court below seemed to think that such affidavit was needed; but we find no such requirement in the Act. All that is demanded is that when there is a renewal, or continuance, the fact that there has been such renewal or continuance shall be certified, acknowledged, recorded, and advertised, and that an affidavit to that effect of the general partner shall be filed and recorded. A certificate that there has been a renewal of an agreement, the contents of which had been previously made known to the public, embodies all the terms of such original agreement. There is no need t.o repeat them, and the Act does not require that this shall be done. The Act does not say that in every case of a renewal or continuance there shall be a certificate and affidavit made out in the terms of the original one, which necessarily embodied all the information, because there was no other manner in which it could be had. It is the renewal — the fact of the renewal — which must be certified. With the announcement of that, the fullest disclosure of persons, and terms, is made: Levy v. Lock, 5 Daly, 47, and 47 How. Pr., 494.
109 Pa. 383Simpson's Appeal (1885)
168. This was the appeal of Alexander Simpson, Jr., trustee, from a decree of said court refusing to compel payment to him by tlie Fidelity Insurance Trust and Safe Deposit Company, administrator of the' estate of John G. Pusey, deceased, of the sum awarded to him, as trustee, in the adjudication on the account of said administrator, and decree of distribution thereon.
109 Pa. 389Wetherald v. Shupe (1885)
The setting aside or dissolving oí an attachment issued under the Act of March 17th, 1809, lies in the discretion of the Common Picas, or a judge thereof in vacation, and tlio Supreme Court has no power to review such action by writ of error. The proceeding being purely statutory can be reviewed only on a certiorari. |
109 Pa. 391Grim's Appeal (1885)
1. A testator, who left to survive Mm a widow a.nd next of kin of full age, but no issue, after giving Ms widow an annuity for life, directed Ms executors to accumulate the surplus income of ’his estate (if any) during Ms widow’s life, and after her death testator gave all moneys in the hands of his executors, invested or uninvested, to certain legatees, with a clause bequeathing to certain residuary legatees (after the death of bis wife) all Ms other estate whatsoever: Held, (1) That the direction to accumulate was illegal and void, under lie Act of April 18th, 1858. (2) That the testator died intestate as to said accumulations, wMcli therefore passed under the intestate laws to his widow and next of kin, in equal moieties. 2. Where on a partial distribution of an intestate’s estate, one of the distributees does not appear, and the entire fund then for distribution is awarded to those who do appear and make claim, the inequality will be corrected on a subsequent distribution of other funds belonging to the decedent’s estate, by awarding to the one who received nothing on the first distribution enough to make up his proportionate distributive share of both funds; if the second fund is insufficient to make him equal with the distributees of the first fund, the whole of the second fund will he awarded to him.
109 Pa. 399American Life Insurance v. McAden (1885)
1. "Where one party to a contract under seal refuses without right to perform his part, the other party may elect either to sue on the contract to recover damages for the broach, or to rescind the contract and sue in assumpsit, to recover back money paid under the contract for which he received no substantial benefit. 2. If, in such case, the plaintiff rescinds and sues in assumpsit, it seems, the sealed contract is admissible in evidence not as the foundation of the action, but as evidence to exhibit the transaction as it previously existed, and to aid in the assessment of the damages. 3. The insured in a policy of life insurance under seal sued the company in assumpsit to recover back the premiums paid, averring that the defendant had unlawfully declared the policy forfeited, and plaintiff offered the policy in evidence, which, upon the defendant’s objection, was excluded by the court. The defence was that a certain premium was not paid on the day it fell due, for which reason the company refused to accept it when tendered and declared the policy forfeited. The verdict was for the plaintiff. Held, that the policy should have been admitted in evidence, but the defendant, having objected to its admission, could not complain of its exclusion; that, in the absence of the policy, the right to forfeit for non-payment of the premium when due would not be presumed; and, the defendant having failed to justify the forfeiture, the plaintiff was entitled to recover hack the premium paid, with interest at least from the lime of demand. 4. The fact that the risk had attached, and had been carried during the time the premiums were punctually paid, was no defence to the plaintiff’s recovery, there having been no loss, and the plaintiff having received no substantial benefit therefrom.
109 Pa. 406Eddey's Appeal (1885)
1. Where the testimony, taken under a petition to the Orphans’ Court for an issue devisavit vel non, is such that the court in the exercise of a sound discretion ought not to sustain the verdict of a jury against the validity of the will based upon such testimony, the court should refuse to direct an issue. 2. Where the overwhelming weight of the testimony as to facts shows testamentary capacity on the part of a testator, the testimony of disappointed or insufficiently informed witnesses to the effect that in their opinion the testator did not have testamentary capacity, has but little value in determining the question whether an issue devisavit vel non shall or shall not be granted. 3. The testimony in this case held to be wholly insufficient to warrant the granting of an issue.
109 Pa. 422Merchants' National Bank v. Goodman (1885)
A bank with which a cheek is deposited by a customer for collection, under an agreement that the depositor’s responsibility as indorser is to continue until payment is ascertained by the bank, is bound to transmit such check to an independent agent for collection with instructions to present the same for payment, and if payment be refused to have the same protested and returned at once. It is not warranted in sending such check to the bank itself on which it is drawn, and in accepting from said bank a draft on some other bank in payment. When it does so and the original check is cancelled, and the account of the drawer oharged with the amount thereof, and afterwards by reason of the failure of the bank on which the check was drawn, the draft remains unpaid, the bank is responsible to the depositor.
109 Pa. 432Cheraw & Salisbury R. R. v. Broadnax (1885)
Error to the Court of Common Pleas No. 4, of Philadelphia county : Of July Term 1884, No. 156. Foreign attachment, by Jane Broadnax, et al., owners of the schooner “ Mattie A. Hand,” against The Cheraw and Salisbury Railroad Company defendant, and the Insurance Company of the State of Pennsylvania, garnishee, upon a general average bond made by defendant to the Master or W. Nelson Jarvis as agent for the plaintiff. As the bond was not under seal the plaintiffs declared in assumpsit and filed the common counts with special counts averring that the said schooner being staunch and seaworthy set out from Philadelphia to Charlestons. C. and on January 9th, 1880, by stress of weather was compelled to put into the port of Norfolk, Va. for iepairs; (setting out the facts in detail) that the schooner afterwai’ds arrived at Charleston and there safely delivered to the defendant company the goods consigned to it, and the defendant entered into a general average bond (or agreement) ; that the losses and expenses were duly adjusted and that the defendants’ proportion thereof amounted to $1939.38, for the payment of which said company were liable under the said agreement of general average. The defendant pleaded non. assumpsit and specially as follows: “And for a further plea in this behalf, the defendant saj’s that the plaintiffs ought not to have or maintain their aforesaid action, because it says that the schooner ‘ Mattie A. Hand,’ in the said declaration mentioned, was not at the time in the said declaration stated, to wit, on the ninth day of January, 1880, staunch and seaworthy, as in the said declaration set forth, and of this the defendant puts itself on the country. “And for a further plea in this behalf, defendant says that the plaintiffs ought not to have or maintain their afoz’esaid action, because it says that the schooner ‘ Mattie A. Hand,’ in the said declaration mentioned, was at the time in the said declaration set forth, to wit, on the twenty-second day of January, 1880, greatly damaged and opened izi her seams, and becazne and was leaky by and through the perils and dangers of the sea and force and violence of the winds and waves, and by means of stormy and tempestuous weather, whereby the said schooner became and was unfit and unable to proceed further upon'her voyage, and whereby it becazne and was neeessazy for the said schooner to put back into the port of Norfolk, and of this the defendant puts itself on the country.” The facts appeared at the trial as follows: On January 9th, 1880, the schooner Mattie A. Hand sailed frozn Philadelphia bound for Charlestozz, having ozz board, inter alia, sozne 545 tons of steel rails, valued at $38,171.56 consigned to the defendant. On January 21st the wind and sea caused the vessel to labor heavily ; she sprung a leak through which the water gained on her pumps so that the master boz’e up to Norfolk for repairs. There the caz’go was dischaz’ged, the vessel repaired and reloaded and again proceeded ozz lzer voyage until April 12th, 1880, when she agaizi sprung a leak, thereupon the master finding it unsafe to continue put back to Norfolk where he arrived on April 14th. Again setting out for Charleston she arrived at the latter port at the close of the month. The master refused to deliver the rails to the defendant company until it should execute the bond or agreement upoiz which this suit arose. This agreement for general average was as follows : Average Bond. Whereas, the schooner “ Mattie A. Hand,” of Philadelphia, whereof Joseph Heaz'on is master’, having on boaz-d a cargo of merchandise, sailed from the port of Philadelphia, on or about the nizzth day of January, A. D. 1880, bound for Charleston, S. C., and in prosecution of her said voyage on the twenty-first day of January, 1880, at one R. M., Phoenix Gland Light-house bore N. E. four miles distant with the wind from the N. E- and a chopping sea on, which caused the vessel to labor heavily, when upon sounding the pumps found that she had sprung a leak at the rate of about one hundred strokes per hour, and which gradually increased to about four hundred strokes per hour, with the pumps kept going all the time in order to keep her free. At 7 P. M. Chincoteague Light-house bore W. N. W., and as it was deemed unsafe to continue on the voyage, after due consideration bore up for Norfolk for the general benefit, where we finally arrived on the 23d, at 1.30 p. M. The said vessel after having proceeded on her voyage, and on the 12th of April, 1880, at 1 p. M., Cape Henry Lighthouse bore W., about eight miles distant, wind W. N. W., and under all sails and a chopping sea, she again sprung a leak at the rate of five hundred strokes per hour, which continued to increase, when finding it unsafe to continue on the voyage finally bore up at 2 i>. m. and arrived back at Hampton Hoads on the 13th inst., at 9 a.m. On the 14th inst. she arrived at Norfolk at 6.30 p. M. for repairs. The said vessel being now under the command of W. Nelson Jarvis, who is master and agent for all concerned. By which means certain losses and expenses have been incurred, and other expenses hereafter may be incurred in consequence thereof, which (according to the usages of the port of Charleston, S. C.) may constitute a general average to be apportioned on the said vessel, her earnings as freight, and the cargo on hoard ; or a special or particular average or charge upon said vessel, cargo, and freight separately. Now we the subscribers, being owners, shippers, consignees, agents or attorneys of owners, shippers or consignees of said vessel or carg’o, or underwriters on said vessel, cargo or freight, do hereby, for ourselves, our executors and administrators, and our principals, generally and respectively, but not jointly, nor one for the other, covenant and agree to and with each other and also separately to and with the said master and agent for all concerned in the said vessel, cargo and freight; that the Joss and damage aforesaid, and such other incidental expenses thereon, as shall be made to appear to be due from us, the subscribers to these presents, or our principals either as owners, shippers or consignees of said vessel or cargo, or as underwriters upon said vessel, cargo, or freight, shall be paid by us respectively, according to our parts or shares in the said vessel, her earnings as freight, and her said cargo or our interest therein or responsibility therefor, that such losses and expenses be stated and apportioned in accordance with the established laws and usages of this state in similar cases, by Juo. H. Heriot, adjuster of marine losses, and that we wiil severalty furnish them on request with all reasonable information and accounts. And for the true performance of all and singular the premises, we do severally hereby bind ourselves, our principals, and our respective heirs, executors, and administrators, to each other and separately to the said master and agent for all concerned as aforesaid in the penal sum of thirty-five hundred dollars, lawful money of the United States. In witness whereof, We have hereunto set our hands, in the city of Charleston, this first day of May, in the year of our Lord one thousand eight hundred and eighty. A. F. Ravenel, lor Oheraw f Salisbury It. It. W. Nelson Jarvis, the master of the schooner, was called by the plaintiffs to prove the execution of the bond and the details of the adjustment. He was asked on cross-examination ; “ Q. Was there not some other timber in the vessel at the time the repairs were made in Norfolk?” Objected to, and objection sustained. (Exception and first assignment of error.) One of the owners having proved the payment of the bills for the repairs, was asked on cross-examination : “ Q. Which of these bills you have before you, if any, are to replace rotten timbers and frames in the vessel with new ones ? ” Objected to, and objection sustained. (Exception and second assignment of error.) The defendant offered to show by several witnesses that the schooner “ Mattie A. Hand,” at and before the time of her departure from the port of Philadelphia, on the voyage described in the narr. was unseaworthy. Objected to, and objection sustained. (Exception and third assignment of error.) The defendant requested the coux’t to charge the jury “ that under the evidence in this case the plaintiff has established no cause of action as laid in the narr.; and that the verdict should be for the defendant.” Refused. (Exception and fourth assignment of error.) The court, therefore, instructed the jury to find for the plaintiffs. Yerdict accordingly for the plaintiffs for $2,373.80, and judgment thereon, whereupon defendant took this writ assigning errors as noted above. The narr. averred that the schooner was “ staunch and seaworthy.” This averment was traversed by the defendant’s first special plea, and the issue thus tendered being accepted must be tried. The defendant’s offer to pi’ove unseaworthiness at the time mentioned should have been received: Seymour v. Hubert, 11 Norris, 499; Thompson v. Barclay, 3 Casey, 263; Rawlins v. Danvers, 5 Espinasso, 38; Philadelphia & Reading R. R. v. Ervin, 8 Norris, 71. The fact of seaworthiness at the time of departure is set forth as the consideration for the promise declared on, and thus becomes material. Schloss y. Heriot, 14C. B., N. S., 59, merely decided that seaworthiness at the beginning of a voyage was not an implied condition precedent to the liability for general average. It was for the jury in this case to determine the fact of seaworthiness: Armroyd v. Union Ins. Co., 2 Binney, 394. Moreover, the fact of seaworthiness being averred in the narr. and traversed by the defendant should have been proved by the plaintiff like any other material fact: Hake v. Fink, 9 Watts, 3¶36; Philadelphia & Reading R. R. v. Ervin, 89 Pa. St., 71. The rule is well settled as to the implied warranty by a ship owner of the seaworthiness of his vessel: Abbott on Shipping, 224; Lyon v. Mells, 5 East, 428; Putnam v. Wood, 3 Mass., 481. General average bonds are open to this defence : Lowndes on General Average, 38; Chamberlain v. Read, 18 Maine, 357. The bond fully recites the disability of tbe vessel by perils of the sea, and that the losses and damages were occasioned thereby; audit is expressly covenanted in the bond that tbe defendant will pay such damage when such losses and expenses are stated and apportioned in accordance with law and usage. The adjustment having been made, tbe parties are bound by it: McLoon v. Cummings, 23 P. F. S., 98; Fowler ®. Rathbones, 12 Wallace, 120 ; Hob-son v. Lord, 2 Otto, 398. The defendants’ offer to show “ unseaworthiness ” was vague. The court below held that the offer should have been to show what the alleged original uuseawortliiness of the vessel was, and that it was the immediate cause of the disaster, and that the damages and losses were not incurred by reason of subsequent injuries by storm and sea perils, but by reason of u use a worthiness alone. This is especially true in view of the language of the bond : Steiumetz v. U. S. Ins. Co., 2 S. & R., 296; Armroyd v. Union Ins. Co., 2 Binney, 394 ; Insurance Co. v. Dunham, 11 Wallace, 32. The allegation in the narr. that the vessel was seaworthy does not require the plaintiff to prove it in the first instance, as the presumption is in favor of seaworthiness, and the burden is upon him who alleges the contrary; Myers v. Girard Ins. Co., 2 Casey, 195 ; Brown v. Girard, 4 Yeates, 118 ; Adderly v. Ins. Co., Taney’s Decisions, 126. The defendant is estopped from setting out the defence of unseaworthiness by the recital and stipulations in the bond; by the adjustment and survey, and by the fact that the owners of the vessel relying on the giving of the bond, relinquished their lien on the cargo: Black’s Appeal, 1 Casey, 238; Eldred v. Hazlett’s Administrators, 9 Id., 307; McÉlrath v. R. R. Co.. 5 P. E. S., 189; Chapman v. Chapman, 9 Id., 214; Mercer Mining Co. v. McKee, 27 Id., 170; Wright’s Appeal, 3 Out., 432.
109 Pa. 443Shisler v. Baxter (1885)
Error to the Court of Common Pleas No. 1, of Philadelphia county : Of July Term 1884, No. 155. This was an action on the case by Josiah Shisler against John C. Baxter and Frank C. Baxter, trading as Baxter Brothers. The narr. alleged that the plaintiff in June, 1882, was engaged in truck farming, and wanted seed called Wake-field cabbage seed for planting; that he had previously bought of the defendants a part of a certain lot of that seed which had produced cabbages known as Wakefield cabbages; that the plaintiff at the time mentioned went to the defendants to buy more of that seed ; that the defendants falsely warranted a certain lot of seed to be Wakefield cabbage seed, and sold the said seed to the plaintiff as Wakefield cabbage seed, good to produce Wakefield cabbages; that in truth the seed was not Wakefield cabbage seed, but produced a crop of imperfect and valueless plants ; wherefore he was damaged, &e. The defendants pleaded the general issue. At the trial, before Peirce, J., the plaintiff testified in his own behalf as follows: “In June, 1882, I went to Baxter’s and asked him if be had any more Wakefield cabbage seed, same as lie had in 1881. He said he had eight or ten pounds of the old seed of 1881. I asked him if it was the old seed. He said it was. He said the new crop had not been harvested jet; he had no new seed in. .... . He said it was all right. We called it Wakefield cabbage seed. I purchased eight pounds and a half altogether; paid five dollars, a pound; used a pound and a half for myself; sowed it September 12th, 1882. Wintered the plants all winter. They should have matured by June, 1883 ; they did not so mature ; they matured about latter part of July and in August. The product was not Wakefield cabbage; there were all varieties in it; some you couldn’t call cabbage at all. I had about two acres. There were say five heads out of a hundred resembling Wakefipld, but didn’t call it Wakefield; it did not grow as the Wakefield should grow ; did not produce Wakefield cabbage. Balance of crop was drum in appearance; didn’t call it drum-head — something resembling a collard, a species of cabbage ; something resembling a cauliflower. Balance very wild ; couldn’t tell what it was. The small lot like Wakefield he sold, but not at Wakefield prices. The drum came into a cheap market. The rest was worthless......I lost about $500.” Cross-examined — “ Have dealt with Baxter eight or ten years ; I always bought the seed in papers [paper shown witness] ; it was in paper like that. I didn’t see that on the back of it .... . He opened the drawer and said he had got some of that old stock of Wakefield cabbage seed, same as I got in 1881. He got it out on the counter. ..... I kept my seed till I sowed it; it looked like cabbage seed.” Re-examined— “Cannot judge as to cabbage from seed itself; we can tell resemblance when we go to transfer to boxes. When we replanted, the plants were four or five inches high. There was nothing in their appearance then by which I could tell positively that they were Wakefield. About three weeks after we planted them in the spring I found cabbage did not look right; found mixtures amongst them ; at times found it growing wild. There was nothing before this to put me on guard that it was not Wakefield. ..... Baxter did not call my attention to what was printed on envelopes. He did not at any time mention to me the name of Bolgiano or B. & C. He •never told me he was acting for B. & C.” Other witnesses corroborated the plaintiff’s testimony, and several of them who had likewise purchased seeds from the same lot, testified similarly as to its product. At the conclusion of the plaintiff’s evidence the court entered judgment of nonsuit, whicli the court in banc refused to take off. Whereupon the plaintiff took this writ, assigning for error the action of the court in entering said judgment of nonsuit. (1) In the contract of sale the goods delivered must be of the kind or sp'ecies contracted for. This does not depend upon any contract of warranty, but upon the nature of the thing sold or contracted for, and a violation of this rule is not a breach of warranty, but rather a non-compliance with the contract which the vendor has engaged to fulfil: Lord Abinger in Chanter v. Hopkins, 4 M. & W., 404. In Eagan v. Call, 10 Casey, 237, Strong, J., distinguishes such cases from those of sale by sample : Borrekins v. Bevan, 3 Rawle, 39 ; McFarland v. Newman, 9 Watts, 57 ; Whitaker v. Eastwick, 25 P. F. S., 231; Fraley v. Bispham, 10 Barr, 325 ; Jennings v. Gratz, 3 Rawle, 169. In Cornelius v. Molloy, 7 Barr, 296, the defendant sold the plaintiff as copper a composition which was not copper, and was held liable in an action of deceit: Kirk v. Nice, 2 Watts, 369; Robertson v. Schwening, 1 W. N. C., 94; Wolcott v. Mount, 7 Vroom, 265; White v. Miller, 71 N. Y., 128 ; Allan v. Lake, 18 Q. B., 565. (2) A given kind of goods being insisted upon, the contract included an express warranty of quality; Boyd v. Wilson, 3 W. N. C., 524; Sims v. Stribler, 13 Id., 92; Warren v. Coal Co., 3 Id., 525; Driesbach v. Lewisburg Bridge Co., 32 P. F. S., 180 ; McGlinn v. Corrigan, 2 W. N. C., 323; Freiberg v. Kahn, 1 Id., 221. (3) The following cases are to be distinguished on plain grounds: (a) Those in which the defect was one of quality merely, the goods delivered being of the kind stipulated for: Wetherill v. Neil-son, 8 Harris, 452 ; Whitaker v. Eastwick, 25 P. F. S., 231; Ooulston v. City National Bank, 4 W. N. C., 297; Boyd v. Wilson, 3 Id., 524. (5) Those in which the actual goods bargained for were delivered, but the buyer was dissatisfied with them : MacFarland v. Newman, 9 Watts, 57 ; Carson v. Bail-lie, 7 Harris, 379 ; Lord v. Grow, 3 Wr., 88. (<?) Those of a sale by inspection, where each party had an equal opportunity of ascertaining the kind and condition of the goods, and where the goods were not required by the contract to be a certain lot as. in the principal case, but only to be those of a general kind or species: Lord v. Grow, supra. And as to this see Osgood v. Lewis, 2 Harris & Gill, 495; approved in Cornelius v. Molloy, 7 Barr, 296; supra, pp. 7, 8. The present action is in case for the breach of a representation or condition of a contract, through which breach certain injury was suffered by the plaintiff. This is the older and probably the more scientific procedure: Vanleer v. Earle, 2 Casey, 279. The plaintiff by his own testimony bought and received exactty what he saw put out on the counter for him, with full opportunity for inspecting what he bought. There is no evidence that the defendants said anything which they believed was untrue, or intentionally made the slightest misrepresentation. The seed when sold was merchantable cabbage seed, even if it was not all “Wakefield” seed. To hold the defendant liable would make a merchant, without corresponding profit, an insurer of kind and quality, and in this ease a guarantor of the most uncertain of all results — the product of seeds planted in the ground : Borrekins v. Beva.n, 3 Rawle, 28 ; Carson v. Baillie, 7 Harris, 375 ; Lord v. Grow, 3 Wright, 88 ; Boyd v. Wilson, 2 Norris, 319; Selser v. Roberts, 9 Out., 242; Wetherill v. Neilson, 8 Harris, 448; Fraley v. Bispham, 10 Barr, 320; McFarland v. Newman, 9 Watts, 55 ; Jackson v. Wetherill, 7 S. & R., 480; Eagan v. Call, 10 Casey, 236; Weimer v. Clement, 1 Wright, 147; Whitaker v. Eastwick, 25 P. F. S., 229 ; Haddock v. Mayer, 38 Leg. Int., 311; Coulston v. Bank, 4 W. N. C., 297; Port Carbon Iron Co. v. Groves, 18 P. F. S., 149 ; Altoona Iron Works v. Axle Co., 6 W. N. 0., 271; Roebliug v. Brown, 9 Id., 170; Ryan v. Ulmer, 12 Out., 332. The narr. is framed as in an action for deceit: 2 Chitty, 680 ; Iron Works v. Barber, 13 W. N. C., 492; 6 Out., 156. The deceit or guilty knowledge on the part of the defendants is the gist of the whole action, and of course must be averred and proved; Cox v. Highley, 4 Out., 249; Dilworth v. Bradner, 4 Norris, 238 ;■ Duff v. Williams, Id., 490.
109 Pa. 447Aubert's Appeal (1885)
1. A will is not revoked by a subsequent instrument intended to confirm it. 2. The Act of June 4th, 1879, (P. L. 88) sec. 3, provides that a general devise or bequest of tlie testator’s real or personal estate shall operate as an execution of a power of appointment unless a contrary intention shall appear by the will. Held, That the operation of the Act is not confined to wills executed after the date of the Act, but extends by its express terms to all cases whore the testator dies after the date of said Aet. 3. A testator domiciled in Pennsylvania left a will in which he conferred upon his wife a power of appointment to be exercised “ by her last will and testament duly executed according to the law of her domicile.” The wife married again and died August 2d, 1883, domiciled in France, leaving a holographic will, dated May 1876, leaving to her second husband “ all my (her) fortune in full'ownership, so that he may dispose of it as he shall deem advisable.” After the execution of this will she executed on September 6th, 1877, an instrument termed in French law an Acte de ISTotariote, a donation inter vivos, giving to her husband “ in case he should survive her, the whole of her property, real and personal, which will compose her estate after her death, of whatever value it may be and wheresoever the same may bo situated, without any exception or reserve; ” with a proviso decreasing the gift to her husband in case of the existence of children. By the law of France powers of appointment are prohibited, and an Acte do Nolariete between husband and wife is revocable. The will was duly executed according to the French code. Held, (1.) That the will was not revoked by the subsequent Acte de Notariete. (2.) That the provision that the power was to be exorcised by a last will duly executed according to the law of the donee’s domicile was not restrictive but enabling, and was to be construed in accordance with the law of Pennsylvania. (3.) That the Act of June 4th, 1879, sec. 3, P. L. 88, took effect upon the will dated May 18th, 1876, because the testatrix died subsequently to the passage of said Act and, therefore, (4.) The property over which the power was exercised by the said will passed by virtue thereof to the second husband of the donee. 4. Semble. When a testator leaves a pecuniary bequest to one in trust for life with remainder over, the remainder man is entitled upon the» termination of the life estate merely to the amount so bequeathed and not to the securities in which it has been invested by the trustee. 5. A sum of .money was left by will to a trustee in trust for a life tenant and to pass at the death of the life tenant to her appointee by will. Held, (by the court below) at the filing of the trustee’s account, that the fund should be paid by the trustee directly to the appointee of the life tenant and not to her executors for distribution to him.
109 Pa. 461Baker's Appeal (1885)
1. The stockholders of a corporation chartered by Act of Assembly in 1852 were given in all elections of directors ono voto for each share of stock. Held, that Art XVI. § 4, of the Constitution of 1874, providing for cumulative voting, does not of itself affect in any way the vested right of the stockholders granted by their charter. 2. The directors of a corporation were given by their Act of incorporation “ all the authority, powers and privileges necessary and proper for the management of the affairs thereof.” Held, that it was not within the scope of the express or implied power of the board of directors to accept the provisions of the Constitution of 1874, and thus to bind the stockholders by section 4 of Art. XVI., referring to cumulative voting at elections of directors. 8. The Act of May 22d, 1878 (P. L., 81), entitled “An Act to require all private corporations applying to the state for aid to file in the office of: the Auditor General their acceptance of the provisions of the Constitution” which authorizes the acceptance thereof by the board of directors at a regular or called meeting, applies only to charitable corporations having no stockholders vested with property rights. In the case of corporations for profit and having capital stock, the provisions of the Constitution can only be accepted in the method prescribed by the Act of April 17th, 1876 (§ 6, P. L., 88), by authority of a meeting of the stockholders called for that purpose, and the acceptance must be certified to the secretary of the commonwealth under the corporate seal. 4. The Act of March 24th, 1852 (P. L., 175), incorporating the American Academy of Music, provided that “ in all elections of directors each stockholder shall have one vote for every share of stock which he may hold,” and gave the directors generally “ all the authority, powers and privileges necessary and proper for the management of the affairs thereof.” .The directors without notice to the stockholders, under color of the Act of May 22d, 1878, resolved to accept the provisions of the new Constitution with the special intention of adopting- the cumulative system of voting at elections for directors. At the next annual meeting- of the stockholders to elect directors for the ensuing year a majority in number of those voting, but not a majority in interest, ratified the action of the directors, and an election of directors was then held in which the stockholders voted cumulatively or non-cumulatively at will. Held, (1) That the action of the directors in assuming to accept the provisions of the new Constitution was void. ■ (2) That the Act of May 22d, 1878, did not apply to the American Academy of Music. (3) That the attempted ratification of the action of the directors was invalid and 'ineffectual; and (4) That the votes cast cumulatively at the election must therefore be thrown out, and the election determined from the votes cast non-cumulatively alone.
109 Pa. 473Wolfe v. Arrott (1885)
3, of Philadelphia county: Of January Term 1885, No. 51. This was originally an action brought by William Arrott against Frank Wolfe before a magistrate to recover one month’s rent of premises leased by Arrott to Wolfe. The magistrate having given judgment for the plaintiff for $75, the defendant appealed to the Court of Common Pleas.
109 Pa. 479Appeal of the Pennsylvania Co. for Insurances on Lives & Granting Annuities (1885)
135. Appeal of the Pennsylvania Company for Insurances on Lives and Granting Annuities, trustees under the will of Lewis Wain for Susan Israel, a legatee, from a decree of the Orphans’ Court of Philadelphia, directing an abatement of the legacy to said Susan Israel, and dismissing exceptions filed by her trustees to the adjudication upon the account of B. Bundle Smith, the executor of said Lewis Wain, deceased.
109 Pa. 489Appeals of the Pennsylvania Co. for Insurance on Lives & Granting Annuities (1885)
1. Where a testator has given absolute interests to several as tenants in common with a gift over upon the death of all without leaving issue surviving them or the testator, cross remainders will not be implied between the legatees. 2. A testatrix gave two thirds of her residuary estate to her daughter, the remaining third to her husband for life; after the decease of her husband she gave the remainder of the one third to her two step-children and then provided: “In ease of the decease of both oE the said step-children without leaving issue surviving them or me, I give, devise and bequeath the said remainder to my daughter and to each and every other child which may hereafter bo born of me and to their issue, aud in case of the decease of my said daughter and all of said children without leaving issue, &c.,” then over. Held, that the legacies to the step-children were rested, subject to be divested upon the death of both without leaving issue surviving them or the testatrix; that therefore cross remainders between the stepchildren would not be implied, and that upon the death of one of the step-children unmarried and without issue in the lifetime of his father, his interest passed to his father under the intestate laws.
109 Pa. 497Appeal of Vaux (1885)
1. Under the Act oí April 29th, 1874, (P. L. 73), the approval oí a charter is a matter in the discretion of the Common Pleas, and no appeal lies from their decision. A certiorari will, however, lie to review the proceedings so far as to see whether they are in accordance with the Act of Assembly. 2. Where the object of a proposed corporation is to carry out the provisions of a will, it is the duty of the court, before which the charter is brought for approval, to examine the will to see if the organization and object of the same is in harmony with the provisions of the will. 3. A testatrix by her will devised and bequeathed her whole residuary estate, which was very large, to establish an industrial home for orphan girls, particularly the children of soldiers and firemen, and directed that such girls should be instructed in domestic and industrial duties, such as would fit them for employment in stores, or for seamstresses or domestics, or for any analogous occupations. She further directed her executor to procure a charter for the institution, and named four ladies as corporators, together with such other persons as might be named by her executor. Upon the death of testatrix two of said ladies were found to have died before her, and one of the remaining two only was willing to sign the charter which the executor caused to be prepared. The other proposed corporators were all men, thirteen in number. The proposed charter set forth the purposes of the institution, as specified in the will of testatrix, with this addition: “It being intended, however, that the primary object of the Home shall be the fitting and training of such orphan girls as nurses.” Said proposed charter further declared that the other lady named by the testatrix should be eligible for election at any time, but all vacancies thereafter occurring were to be filled by men only. Provision was also made for an advisory board of fifteen ladies, under the control of the board of directors, and to be elected by them. Application being made to the court to grant the charter as above, and the application being refused, and a certiorari taken: Held, that the proposed charter was inconsistent with the intention of the testatrix, both as to the purposes of the charity, and also because the control of the corporation ivas not given, in part at least, to females, and that the court was therefore warranted in refusing the application.
109 Pa. 504Rohn v. Dennis (1885)
Error, to the Court of Common Pleas of Northampton comity : Of January Term 1885, No. 69. .Replevin, by Jacob P. Rolm against Andrew Dennis, to recover the possession of a colt which Rolm alleged belonged to him at tlie time he issued the writ, and was at that time in the unlawful possession of Dennis. Plea, “property.” The facts of tlie case are fully recited in the opinion of this court. Verdict for tlie defendant and judgment thereon. Plaintiff took this writ, assigning for error the rulings of the court, as substantially set forth in the opinion of the Supreme Court.
109 Pa. 507Nassauer v. Susquehanna Mutual Fire Ins. (1885)
Error to the Court of Common Pleas of Northampton county: Of January Term 1885, No. 109. Covenant, by William Nassauer against the Susquehanna Mutual Fire Insurance Company, on a policy of firé insurance to recover damages for loss sustained by plaintiff in the destruction of the insured property by fire. Pleas, covenants performed absque hoc, payment with leave, &e. On the trial, before Schuyler, J., the following facts appeared: In June, 1876, Nassauer was approached by Frank Laubach, the local agent of the defendant company, and after some conversation Nassauer agreed to have his house insured for $1,000, and his furniture for $200. The house was valued in the application at $1,400, and the furniture at $400. In his application plaintiff was asked: “If any judgments, liens or mortgages, state particularly the amount, and whether there is any insurance by mortgagee,” to which he answered, “I have $500 claim on one acre of ground against, but not on building.” By a provision in the application, the above was taken to be a warranty. The policy of insurance was issued on June 21st, 1876, and contained, inter alia, the following conditions: “ 1......the applicant shall also state the true cash value of the property to be insured, and the incumbrances (if any) on the same; also the nature of the interest to be insured, if other than fee simple title and ownership; also any other facts relating and material to the risk. And the said valuation, description and survey shall be taken, and deemed to be the act of the insured, and a warranty on his, her or their part, and said warranty shall apply to all the property insured, whether real or personal......An over-valuation of the property or interest to be insured, shall render absolutely void any Policy issued upon such description or valuation. “ 13. The insurance under this Policy shall cease at and from the time the property hereby insured be levied on or taken into possession or custody under any proceeding in law or equity; and should there, during the life of tiffs Policy, an incumbrance fall or be executed upon the property insured sufficient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain tbe consent of tbe company thereto, then and in that case the Policy shall be void.” The policy also contained a provision that the policy was made and accepted in reference to the by-laws, which provide, by section 15, that: “In all eases shall the person forwarding applications be deemed the agent of the applicant and not of the company, in any preliminaries to such contract or proposal.” Plaintiff’s property was totally destroyed by lire on the night of August 7th. 1877, while plaintiff and his wife were absent from home. The company refused to pay Nassauer the amount of his policy on the ground that there was a breach of warranty, that the valuation put upon the property was greatly in excess of its true value, and that incumbrances had been placed on the property after the date of the policy, which reduced the real interest of the insured to an amount less than the sum insured. Several witnesses testified to the value of the house, the highest valuation put upon it was $650, and one witness testified that he would rebuild it for $300. Plaintiff, who was an ignorant German, offered to prove that at the time of the application for insurance, Frank Laubaeli, the agent of the insurance company, made all the answers in life own handwriting to the questions in the application, and stated to this witness that on the payment of a premium he would get $1,200 if any fire occurred by which this property was totally destroyed, and that Frank Laubaeli valued the property at $1,400 for the building, and $400 for the kitchen and other furniture, making in all $1,800; and that Frank Laubaeli fixed the amount of the insurance which the company would take at $1,200, and based the premium thereupon. Objected to, because the application is an act of the insured and that it is a warranty upon its face, and that no evidence of either fraud or mistake would be admissible to contradict the written contract between the parties. Objection sustained. Exception. (Sixth assignment of error.) Plaintiff also offered to prove that he stated to the agent of the company when making his application for insurance, that there were incumbrances and liens upon the property, and that the agent told him that that was of no consequence, that he would fill up the application, and offers to prove also by the same witness that the value stated in the contract of insurance as the cash value of the property was made by the agent of the company after a careful survey of tbe premises. Objected to as incompetent and irrelevant. Objection sustained. Exception. (Seventh and eighth assignments of error.) The defendant submitted the following point: “First. Under the law and all the evidence in the cause, the verdict must be for the defendant.” “ Answer. This point is affirmed.” (Twelfth assignment of error.) In the charge the court said: “ The 13th and last condition of the policy is as follows : “ ‘ The insurance under this policy shall cease at and from the time the property hereby insured, be levied on or be taken into possession or custody under any proceeding in law or equity; and should there during the life of this policy an incumbrance fall or be executed upon the property insured sufficient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain the consent of the company thereto, then, and in that case the policy shall be void.’ “Now, the undisputed evidence in this case is that after Ihe date of the policy and before the fire, a number of judgments were entered up against the insured, which reduced the real value of the property insured below the amount of the insurance. It is not even pretended here, that the company were notified of these incumbrances, and there is no explanation or excuse given for the want of notice. This 13th condition in the policy is one of the vital conditions lipón which the company agreed to be bound to pay the amount of the insurance. It has not been complied with, and therefore, there can be no recovery in this action upon the part of the plaintiff. For both of these reasons, gentlemen of the jury, I think that your verdict should be for the defendant, and, of course, it will be your duty to so render your verdict.” (Eleventh assignment of error.) Verdict for the defendant and judgment thereon. Plaintiff took this writ of error, assigning for error, inter alia, the rejection of his offers of testimony as above noted, the action of the court in directing a verdict for the defendant, and the portion of the charge above quoted. The court below holds the plaintiff responsible for certain answers to questions in the application and refused to permit him to show that he did not make those answers. He is held responsible for all the representations of the agent as though the agent had been his agent and acting under his instructions. In Columbia Insurance Company v. Cooper, Id Wright, 331, Chief Justice Woodward, referring to these mutual companies, says: “ As to all preliminary negotiations, the agent acts only on behalf of the company.” An agent may so conduct bis business as to estop the company he represents from denying the truth of the statements made in the application, as by assuming to fill up and. forward an application signed by himself, but without authority to do so : May on Insurance, 14. Parol evidence is admissible to show that an insured did not know that he was making, and did not intend to make such a representation as that which it was claimed avoided the policy: Union Mutual Ins. Co. v. Wilkinson, 13 Wall, (U. S.) 222; Insurance Go.v. Marshall, 29 Vennt., 23. The only incumbrance on the property at the time the application was made, was that contained in plaintiff’s answer. Plaintiff, by permitting the agent to write his answers to the application, makes the answers his own warranty: Blooming Grove Ins. Co. v. McAnerney, 6 Out., 335; Mutual Fire Ins. Co. v. Huntzinger, 2 Id., 41; Insurance Co. v. Fromm, 4 Id., 347. The amount of incumbrances stated is a warranty, unless fraud is practised In* the agent of the company; but this provision makes the local agent the representative of the applicant in this matter.
109 Pa. 515Larzelere v. Haubert (1885)
Error to the Court of Common Pleas No. 2, of Philadelphia county: Of July Term 1884, No. 143. Trespass, by Peter Haubert against John Larzelere, to recover damages for certain liquor seized by the sheriff as the property of Jacob Haubert, in pursuance of an attachment, under the Act of 1869, issued by Larzelere against Jacob Haubert. On the trial, before PIARE, P. J., the following facts appeared: In pursuance of an attachment issued under the Act of 1869, by John Larzelere against Jacob Haubert, the sheriff levied on certain liquor as the property of said Jacob HaubertPeter Haubert having presented a claim for the liquor, the sheriff obtained a rule on Larzelere and Peter Haubert to interplead under the Act of April 10th, 1848, as extended to these attachments by the Act of January 30th, 1871. Purd. vol. 1, page 54. Peter Haubert failed to file a narr. or bond, and the sheriff subsequently proceeded in the attachment proceeding, sold the liquor and paid the proceeds to Larzelere. Peter Haubert then brought this suit and after the above facts had been shown, the following case stated was agreed upon, and a point of law reserved by the court for the opinion of the court in banc. “ It is agreed the following point be reserved: “ It being admitted— “That under an attachment under the Act of 1869, against Jacob Haubert, in which John Larzelere was plaintiff, certain barrels of liquors were levied upon by the sheriff of the county of Philadelphia under the instructions of the said John Larzelere, the defendant in this action. “ That Jacob Haubert was not in the possession of the said liquors at the time of the said lev}'. “That Peter Haubert, the plaintiff in this action, claimed the said liquors as his property, and notified the sheriff of his claim. “ That a rule for a sheriff’s interpleader was immediately obtained by the said sheriff, and the said Peter Haubert and John Larzelere were ordered to interplead as to ownership of said goods. “ That the'said Peter Haubert failed to file his bond and narr. as required by the rules of the court. That thereupon the said John Larzelere, by his counsel, moved the said court for an order that the sheriff have leave to proceed and sell the said goods under a fi. fa. issued on a judgment obtained in the said attachment against the said Jacob Haubert. “ That thereupon , the said sheriff sold the said goods at public sale, and paid the fund realized from such sale to the plaintiff in the said attachment, the said John Larzelere. No further action was taken under the said interpleader, nor was any notice given to the sheriff to pay the proceeds of said execution into court. “ If the court should be of the opinion that the proceedings under the sheriff's interpleader preclude the plaintiff in this action from recovering any damages by reason of the sale under the said execution, then judgment shall be entered for the defendant on the verdict, otherwise judgment shall be entered for the plaintiff, provided the verdict should be for the plaintiff.” Subject to this point reserved, the jury found for plaintiff for $324.90, and the court subsequently entered judgment on the verdict: whereupon the defendant took this writ assigning for error the action of the court in entering judgment for the plaintiff on the point reserved. Under the Act of 1848 and rules of court made in pursuance thereof a remedy is provided for settling disputed claims of this nature, and where an interpleader order is made by tbe court under the legislation there is no other remedy. Where a remedy is given by statute an action cannot be maintained at common law: Kuorr v. P. G. & N. II. It. Co., 5 Wh., 256 ; McKinney v. Monongabela Nav. Co., 2 II., 65; Custer v. Commonwealth, 1 C., 875; dumb. V. It. R. Co. v. McLanahau, 9 Sm., 28 ; Koch v. Williamsport Water Co., 15 Sm., 288 ; Weller v. Woyand, 2 Gr., 103; Bald Eagle Boom Co. v. Sanderson, 83 Leg. Lit., 359; Nichols v. D. & H. Canal Co., 2 W. N. C., 708. When a narr. is filed but no bond, the sheriff is to proceed and sell and pay the proceeds into court: Dillon v. Conover, 2 W. N. 0., 126. The plaintiff cannot take advantage of his own neglect to file his narr. Although the Act was passed for the benefit of the sheriff, yet after the parties are called in and an order made to inter-plead with each other, then all parties are bound to pursue their remedy in that form: Zaeharias v. Totton, 9 Norris, 292 j Bain v. Funk, 11 P. F. S., 185. On October 21st, 1848, in the case of Rump v. Williams, 1 Br. T. & H. Pr., 658, the rule of practice of the. courts in Philadelphia in inter-pleader cases, was laid down as follows: “ If he (the claimant) neither file his narr. nor give the bond, tbe court, on motion of the sheriff or plaintiff in the execution, will make an order that the sheriff do proceed with the said execution, and that the claimant be barred of any action against the sheriff, or any one acting by his authority, saving, however, his right of action against the plaintiff and all others.” This rule of practice, thus established in Philadelphia thirty-six years ago, has continued to the present time; so that when the claimant in the present case, the defendant in error, declined to interplead, and the plaintiff moved that the sheriff have leave to proceed, the former knew that if the sale took place, he still had his remedy by an action of trespass to recover the value of his goods. The justness of such a rule of practice is evident. By our. every day experience goods do not bring at sheriff’s sale what they are worth ; and if A. having a judgment against B. can cause a levy to be made on C.’s goods, and C. is unable to give security in an interpleader bond, then A. may buy C.’s goods just for what they will bring at a sheriff’s sale, and C., without any default upon his part, be deprived of his property for A.’s benefit.-
109 Pa. 520Miggett's Appeal (1885)
Appeal of William Miggeffc from a decree of the Court of Common Pleas No. 2, of Philadelphia county: Of January Term 1884, No. 306. .
109 Pa. 523Goodrich & Hick's Appeal (1885)
1. A fund constituting assets of an insolvent insurance company, produced under a cpntraot of re-insurauce of its risks with another insurance company, is distributable pro rata to all finí creditors of such insolvent company; the individuals insured, for the destruction of whose property the fund was paid by the re-insuring company, have no right to a preference in distribution. 2. It is competent, however, for an insurance company to contract with another insurance company to ro-insurc certain of its risks for the particular indemnity of individuals insured; and in such case the latter may claim the fund to the exclusion of general creditors. 8. The particular contract in this ease held to be a general contract, of reinsurance, and the fund derived therefrom was therefore distributable pro rata to all the creditors.
109 Pa. 532Moshannon Land & Lumber Co. v. Sloan (1885)
3, of Philadelphia county: Of July Term 1884, No. 133. Assumpsit, by the Moshannon Land and Lumber Company, against Samuel Sloan, Charles Balderston and Isaiah Y. .Young, late trading as Sloan, Balderston & Young, upon three promissory notes, signed by the above firm, one for $347.85 at three months, dated March 25th, 1878 ; one for $351.78 at five months, dated March 15th, 1878 arid the third for $354.77 at seven months, dated March loth, 1878.
109 Pa. 535Universal Fire Insurance v. Block (1885)
1. A condition in a policy of insurance, exempting the company from liability, until tlie actual payment oí the premium either at its office oi to an agent duly authorized in writing to receive it, may be waived by the acts of the parties. i. The counter-signature of an agent, upon a policy which by its terms requires the same in order to make it valid, gives it the appearance oí a valid instrument and estops the company from denying that it is their instrument. o. A stipulation in the requirements o£ proof of loss that the chief of 1he fire department or the magistrate or justice nearest the place of fire shall certify “that he lias examined the circumstances attending the loss,.....and verily believes that the assured lias honestly sustained loss ” is void, as an insurance company has no right to require a public officer to act in the adjustment of its risks. 4. It is the duty of an insurance company, upon finding proofs of loss objectionable, to return the same and inform the assured of the particular defects.
109 Pa. 541Kane v. Commonwealth (1885)
Error to the Court of Oyer and Terminer of Philadelphia county : Of January Term 1885, No. 415. Indictment of James Kane for the killing of Andrew Kane. The indictment contained two counts; the first in the usual form charged the crime of murder, the second, manslaughter; to the latter was appended an averment that James Kane had been indicted for murder at the September Sessions 1872, of the Court of Over and Terminer, Philadelphia county, convicted of manslaughter and sentenced to seven years and eleven months in the Penitentiary. On the trial, before Hare, P. J„ before any testimony was offered connecting the prisoner with the crime, the record of a former indictment and conviction of manslaughter was offered in evidence. Objected to. Objection overruled and evidence admitted. Exception. (First assignment of error.) The defence thereupon admitted the identity of the prisoner with the James. Kane mentioned in the above indictment. From the evidence it appeared that James Kane kept a tavern at Eighth and South street, in the city of Philadelphia, which was frequented by thieves and where the deceased, Andrew Kane, a brother of the prisoner, spent most of4iis time, although he did not live there. The brothers had had two slight quarrels within a fortnight of the killing. On the evening of January 11th, 1885, the brothers came into the bar-room together and James was heard to remark emphatically “ I told you, no.” A few moments later Andrew Kane attempted to go up stairs when he was met by his brother and some conversation passed between them which was not heard, but two pistol shots were heard in quick succession and Anderw Kane staggered back into the room and afterwards fell to the floor. Later, he was taken to the Pennsylvania Hospital, where he died early the next morning from the effects of the wound. John McCloskey, a witness for the Commonwealth, testified as follows: — “I Avas standing at the bar, not looking in that direction at the time, but as I heard the report of the first shot I looked around and just then I saw the flash and heard the report of the second shot. I sarv James Kane fire the second shot. He was about two feet away from Andy when the last shot was fired. I saw the pistol in his hand.” At the time of the shooting, both men were somewhat under the influence of liquor, although it Avas testified that James Kane “ could talk intelligently and knew what he Avas doing.” The defendant offered to prove by the brother-in-law of the deceased the dying declaration of the deceased that James Kane did not do the shooting. Objected to on the ground that there Avas no evidence that the deceased knew he was about to die. Objection sustained and evidence excluded. Exception. (Third assignment of error.) Verdict, guilty of murder in the first degree in manner and form as indicted. The court entered judgment on the verdict, and thereupon sentenced the prisoner to be hung. The prisoner’s counsel took this writ of error, assigning for error the joinder in the indictment of a count for manslaughter with an averment of a former conviction of manslaughter; the admission of the record of said former conviction in evidence without further proof of the identity of the prisoner than was contained in the admission of counsel; the refusal to admit the dying declaration in evidence, and the entry of a verdict of murder in the first degree. It is needless to quote the long line of authorities to establish the proposition that one crime cannot be given in evidence against a prisoner upon trial for a separate and distinct offence. See Swan v. Commonwealth, 8 Out., 218 ; State v. Lapage, 57 N. H., 245. Notwithstanding the great wrong done the prisoner, by charging him with another and separate offence, an offence the law offers him no opportunity to defend himself against, yet the Commonwealth in the court below contended that they were justified in the indictment against the prisoner for murder, also of charging him with two unconnected crimes of manslaughter, for the purpose they claim, in case of his conviction of one crime of manslaughter the court would be enabled, in their discretion, to impose upon him a double sentence under Sec. 182, Revised Penal Code, Pnrdon, 372, Sec. 302. As authority for this position, Rauch v. Commonwealth, 78 Pa.-St. R., 490, is cited.' It is submitted that the principle announced in Rauch v. Commonwealth, has no application to the case now in hand. The Commonwealth claims that it was released from the necessity of proving by witness under oath that the James Kane on trial was one and the same person mentioned in the record in evidence, by the admission of such a fact by counsel for the prisoner. In a criminal case, especially a capital one, counsel can neither agree to, nor admit anything: Mills v. Commonwealth, 1 Harris, 627; Peiffer v. Commonwealth, 3 Id., 468. The law does not require positive evidence that the deceased knew he was dying; it may be inferred from his conduct, the nature of the wound, and the surrounding circumstances, nor is it necessary to prove expressions of an apprehension of death, if his condition was such that he must have felt'that lie was a dying man: Roscoe’s Crim. Ev., 30. This remark of the deceased, that the prisoner had not shot him, was admissible upon other grounds than a dying declaration. It was part of the res gestee: 1 Greeuleaf on Ev., § 108. Under the 182d section of the Penal Code, a double punishment is provided for the second conviction of manslaughter. The object to be attained by the insertion of the count for manslaughter, was to secure the necessary conditions to enable the court to impose a double punishment if the jury should fix the degree of guilt at manslaughter. If the prisoner was powerless to make an admission concerning the identity, then there was simply a failure of proof on that point. If the prisoner had been convicted of the second offence of manslaughter, then the failure of proof might have been of great importance ; but since the jury have found that the killing was a wilful, deliberate, and premeditated one, this failure of proof becomes unimportant. The jury were carefully guarded by the court and counsel from considering the former conviction in making up their minds to the degree of guilt.
109 Pa. 545John's Administrator v. Pardee (1885)
Error to the Court of Common Pleas of Luzerne county: Of January Term 1885, No. 398. Assumpsit, by the banking house of Pardee and Maride against Plarry John, Administrator of Thomas John, deceased, upon a promissory note payable at said banking house, made by Thomas John, deceased, to the order of James Fitzpatrick, and by him indorsed. On the trial, before Rice, P. J., the following facts appeared: In 1872 the firm of Pardee, Maride and Grier were doing a general banking business in Hazleton, Grier being the resident and general managing partner. Grier retired from the firm in 1881. The note was dated April 8th, 1876, and was payable four months after date. The maker having died in 1880, this suit was brought-against his administrator. The defendant offered to prove by Col. James Fitzpatrick that about 1872, Pardee, Maride & Grier, acting always through Mr. Grier, entered with the witness into an enterprise to furnish Hazleton with a large hotel. Fitzpatrick was to furnish the land and about forty thousand dollars ; and what was necessary to complete and furnish the buildings, upon the plans and estimates agreed upon, was to be supplied by Pardee, Markle & Grier, who were to take judgments from Fitzpatrick (in whose name the title was to remain) upon the whole property and plant, and to look exclusively to that property and plant for payment. Fitzpatrick paid in his forty thousand dollars, the building was erected upon his land, and the bank advanced the requisite difference, taking judgment notes for the amount thereof, upon that understanding. That, subsequently, in 1876, after the completion of the hotel, Mr. Grier asked Fitzpatrick to give his notes with indorsement for the amount so advanced, and for which the firm already held his judgment notes, in order, as he explained, that the transaction might look more regular upon the books of the bank. Col. Fitzpatrick expressed his willingness to put his own notes in- the bank, but refused to give such notes with indorsements. That shortly after this Mr. Grier came to the said hotel and •brought with him Thomas John, the decedent, who knew .nothing of the transaction or condition of affairs between Fitzpatrick and Pardee, Markle & Grier, except as they were subsequently stated to him by Mr. Grier. That Mr. Grier then stated the foregoing facts to Mr. John, produced the promissory note ready for signature, and asked John to sign it, telling him that it was only a form, that he, John, would not be liable on it, and that the firm looked only to Fitzpatrick, who had already received the money. That at first John was unwilling to sign the paper but finally, upon these assui'ances, did so. This paper being the promissory note sued upon. It was also offered to show that Pardee, Maride & Grier, in • September or October, 1876, purchased at sheriff’s sale, upon executions issued by them, the entire property and plant of the said hotel, for four thousand eight hundred and fifty dollars (applied on their judgments), and that the value of the property so acquired by them, was greater than the aggregate sum advanced by them to Fitzpatrick, together with legal interest thereon, showing that, both directly, and by virtue of their agreement to look to the said property exclusively, they were thus paid in full. The court below, upon objection, excluded the offer upon two grounds: (1) Because the witness, Fitzpatrick, was the payee and indorser of the note in suit, and as such was not a competent witness to impeach the original validity of the note in a suit by indorsees. (2) The cause of action being a negotiable promissory note, upon which suit was instituted by the indorsee for value, no parol testimony is admissible to impeach the original validity of the note. (First assignment of error.) Defendant then offered in evidence release from the defendant to the witness for all liabilities arising out of the said note, and from all costs and damages that might accrue or be recovered in any action or actions brought thereon, and thereupon renewed his written offer No. 2, which offer was again excluded. (Second assignment of error.) Defendant also offered to show that the note in question was retained in the bank of Pardee, Markle & Grier long after its maturity, without any attempt to collect it. That the book-keeper of the firm, in the course of his employment, asked Mr. Grier what disposition he should make of the note in question, and Grier (then being the managing partner of the plaintiff firm) replied that it was “fixed,” and after a while he, said book-keeper, could charge it to the “ Central estate account,” meaning the account of moneys invested with Fitzpatrick in the enterprise of the Central hotel. This offer was also excluded. (Third assignment of error.) From the testimony of the book-keeper of plaintiff, it appeared that the note had never been charged to the account of Thomas John, that in a conversation with Grier about the time of its maturity the latter said that it would probably be disposed of in the real estate account, which represented the cost of the different properties owned by the firm. Defendant then renewed his first offer, which was again excluded. (Fifth assignment of error.) James Fitzpatrick, the indorser of the note, testified that it was paid, that he gave judgments which he supposed covered everything, that it was paid by judgments and property. Plaintiff introduced evidence in rebuttal showing that no judgment was confessed by Fitzpatrick to the firm, after tbe note in question became due. The defendant in sur-rebuttal offered to show by Fitzpatrick, that the judgments referred to had been paid and included the note in suit. Objected to as not sur-rebuttal. Objection sustained and evidence excluded. Exception. (Sixth assignment of error.) Defendants further offered to show sales of Fitzpatrick’s real and personal property to Pardee, Markle & Grier, upon executions issued on their own judgments, for the sum of $4,850. Offer excluded. (Seventh and eighth assignments of error.) The plaintiffs presented the following points : 1. That there is no evidence in this case showing that the note in suit has been paid, or any evidence from which the jury would be warranted in inferring that the same has been paid, and therefore the verdict must be for the plaintiff. Answer. Affirmed. (Twelfth assignment of error.) 2. That under all the evidence in the case the verdict must be for the plaintiff. Answer. Affirmed. (Thirteenth assignment of error. The defendant presented, inter alia, the following point:— That if the jury believes the testimony of Ool. Fitzpatrick that the note in suit was paid in full, plaintiff cannot recover in this action. Answer. Refused. (Eleventh assignment of error.) The court further charged the jury: — “We hold, and it is a principle of law, that an indorser of a negotiable instrument of this kind who has given it currency is not a competent witness to invalidate it. He is not competent, by reason of the policy of the law, to go upon the witness stand and testify that it was not a valid note when it was given. Hence his testimony upon this subject was rejected, and therefore, there is no evidence before you as to that branch of the case.” (Ninth assignment of error.) “ Upon being called and asked the general question whether he paid the note, he stated he had paid it by judgments and property. Now, the question arises, whether that evidence is such as would warrant the inference that the note had been paid. Payment is a question of law. It results as conclusion of law from certain facts. A witness may testify _to facts from which, if they warrant it, a conclusion of law arises that the debt has been paid, but we think no such conclusion arises from the testimony in this case. James Fitzpatrick was inclovser of a note. The fact that he gave judgment, if he did give judgment, would not be a discharge in itself of the maker; because the holder of the note might sue both the maker and indorser, obtain judgment against both of them, and until he had satisfaction of his debt neither would be discharged. Hence mere testimony that the indorser had given a judgment would not discharge the maker, Thomas John, from his obligation to pay the note. He states further he paid it by judgments and property; this as we regard it, is testimony of a legal conclusion, and. not as to matter of fact.” (Tenth assignment of error.) Verdict for the plaintiffs for $9,733.75, and judgment thereon. Defendant took this writ of error, assigning for error the exclusion of the evidence as above noted, the answers to the above points and the above portions of the general charge of the court. The evidence contained in the first offer, was competent: Phillips v. Meily, 15 W. N. C., 225, but the objection was taken to the competency of the witness, who was an indorser of the note and this was sustained on the authority of Walton v. Shelley, 1 T. R., 300, and the authorities iu this state following that ease. The authority of this case, which has been overruled in England, has been materiallv qualified here: See Hawkins v. Cree, 1 Wright, 494; Parke v. Smith, 4 W. & S., 287; Work v. Case, 10 Casey, 138; and Hepburn v. Cassei, 6 S. & It., 116. The tendency of legislation iu this state is to make all objections go to the credit rather than to the competency of the witness: Act of April 15th, 1869: Bank of Harrisburg v. Rhoads, 8 Norris, 353. There was evidence to show that the note was not negotiated in the usual course of business, which is sufficient to take the case out of the rule. Ail the authorities agree that where there is evidence to bring the case within any one of the numerous exceptions to the rule, the party to the instrument then becomes competent to impeach its validity: Hawkins v. Cree, 1 Wright, 494; Wilt v. Snyder, 5 Harris, 77 ; Kennedy v. Lancaster Co. Bank, 6 Harris, 347. Whether the sale and purchase of Fitzpatrick’s property were intended as payment or not, was a question for the jury: Mehan v. Thompson, 71 Me., 492; Meliedge v. Iron Co., 5 Cush. (Mass.), 170; Hart v. Boiler, 15 S. & R., 162; Bank of IT. S. v. Bank of Georgia, 10 Wheat. (U. S.), 333. The witness was clearly incompetent under the rule in Walton v. Shelley, 1 T. R., 300, which has been repeatedly recognized in Pennsylvania: Stille v. Lynch, 2 Dallas, 194; Gest v. Espy, 2 Watts, 267; Harding v. Mott, 8 Harris, 472. A parol agreement made at the time of the execution of the note or bill, that it should’ not be paid according to its terms, is not admissible in evidence in behalf of the maker or acceptor: Commercial Bank v. Henninger, 9 Out., 496; Phillips v. Meily, 10 Id., 536. In the absence of any evidence of facts showing an intention to take the property in absolute payment, or of any evidence of an agreement for extinguishment of this debt, or of any merger in law of the security, how could the court submit the question of payment to the jury without abdicating its functions as a court? League v. Wasing, 4 Norris, 246; Eby v. Hoopes, 10 W. N. C., 315; Wallace v. Fair-man, 4 Watts, 378.
109 Pa. 550Franklin Coal Co. v. Bertels (1885)
Error to the Court of Common Pleas of Luzerne county : Of January Term 1885, No. 439. Ejectment, by Arnold Bertels et al., against the Franklin Coal Company, for a tract of land in Hanover township, containing 130 acres. Plea, not guilty. On the trial, before Rice, P. J., the plaintiffs having shown title out of the Commonwealth, based their claim upon an assessment of the land in dispute for taxes for 1864 and 1865, as “unseated;” and a sale by the treasurer to the commissioners, who conveyed the property to plaintiffs by deed dated October 17th, 1871, the period allowed for redemption having expired. Plaintiffs gave in evidence a certified draft of the land included in the patent and thou offered in evidence certified list of unseated lands from the commissioners to the treasurer, for the years 1864 and 1865, containing the following entries : 130 acres, Joseph Newbold, or No. 2, 1st division, Hanover township. Taxes, 81-46, state; 82.44, county; 82.34, school. 1865, 81.46, state; 81-95, county; (no school.) Offered for the purpose of showing that the lands were assessed for taxes of that year, certified to the treasurer, and by the treasurer, sold to the commissioners. To be followed by testimony showing that Joseph Newbold is a part of Nos. 1 and 2, and a part of the land certified to J. Rosencrantz, covered by the patent already in evidence. Objected to as immaterial and irrelevant. Objection overruled and evidence admitted. Exception. (Third assignment of error.) Plaintiff gave in evidence Treasurer’s Sale Book showing the sale by the treasurer to the commissioners for taxes of 1864 and 1865, certified by the commissioners to the treasurer as having been levied and assessed against 130 aeres of the laud in controversy. Plaintiffs then offered the commissioners’ deed to the plaintiff. Objected to because the prerequisites are not shown authorizing the acknowledgment and delivery of such a deed. Objection overruled. Exception. (Tenth assignment of error.) In order to identify the land covered by llieir writ with the land assessed and sold for taxes, plaintiffs first offered evidence to show that a certain tract of land in Hanover township was assessed from 1842 to 1846, and from 1857 to 1865, in the name of Joseph Newbold. Objected to as immaterial. Objection overruled and evidence admitted. Exception. (Second assignment of error.) Plaintiffs also offered evidence to show that in July 1854, the land in suit was surveyed at the instance of the attorney for the heirs of one Joseph Newbold. Objected to. Objection overruled and evidence admitted. Exception. (Fourth assignment of error.) . Three witnesses were called who testified, in substance, that the land in suit was commonly called the Newbold lot. This testimony was admitted under objection. (Fifth, sixth and seventh assignments of error.) It was not shown by a writing of any kind that any one named Newbold ever had any title to this property. Defendant, for the purpose of proving title to the land, gave in evidence the assessment and treasurer’s deed showing a tax sale in 1858 to S. S. Winchester of -80 acres, part of No. 1, 1st division, Hanover township, as unseated land, and a conveyance of the same to the defendant. There was a conflict of testimony as to whether the tax sale was upon the property in dispute. Plaintiffs claimed that it was upon another part of this same division. .Defendant offered to show that the one half part of certified lot No. 1, Hanover township, known as the Waller part, has been seated land since 1850 — for the purpose of showing that the eighty acres of 240 acres of lot No. 1, sold to Winchester and subsequently conveyed to the company, can only properly be located'on the other half of lot No. 1, or the land in dispute. Objected to as immaterial. Objection sustained. Exception. (First assignment of error.) Defendant presented, inter alia, the following points: — ■ 2. “The plaintiffs have failed to identify by sufficient legal proof the land in suit with the land assessed and sold for taxes to the commissioners in 1866, and therefore are not entitled to recover.” Answer. - “I am not prepared to say that the fact of a tract being called by a certain name, and commonly known by that name by the people who knew the tract and by the taxing officers, might not be so well and thoroughly established as to be evidence which a jury could take into consideration in passing upon the question of identification. We therefore negative the defendant’s request upon this point, and submit the question of fact to you.” (Eighth assignment of error.) 8. “The plaintiffs sue for an entire tract or piece of land alleged to contain 180 acres, a portion of which, by the uncontradicted evidence, has been shown to have been seated by actual residence in 1864 and 1865, when the taxes were assessed for which the land was subsequently sold in 1866. Such seating of part seated the entire tract, and therefore the plaintiff is not entitled to recover.” Answer. “ This point is answered in the negative. Does the evidence show that there Avas such a severance of a part of this tract from the rest by such distinct boundary line or line of demarcation or adverse claim, as Avould leave the rest of the tract unseated and liable to taxation as such? ” (Ninth assignment of error.) 6. “Under the evidence, S. S. Winchester and the defendant after him, paid taxes upon 80 acres of No. 1, 1st division Hanover township, on the unseated list from 1858 to 1864, inclusive ; and since 1864 on 193 acres of the same lot, on the sealed list. If the jury believe that the said 193 acres include the Waller half of No. 1, containing about 102 acres, the Jones improvement containing about 11 acres, and the 80 acres bought of S. S. Winchester, then the sale for taxes of any portion of said land as unseated in 1866 was void and gave no title.” Answer. Affirmed with a qualification that the jury find the eighty acres to be identical with the land in controversy. The court left the question to the jury to determine whether the tract in suit was the same that was assessed and sold to plaintiffs. Verdict for plaintiffs for all of the tract in suit not disclaimed, and judgment thereon. Defendant took this writ of error, assigning for error the ruling oil the offers of evidence and the points as above noted. The cultivation of several acres fixes the character of the whole tract as seated, and renders a sale for taxes unlawful: Sheaffer v. McKabe, 2 Watts, 421; Fish v. Brown, 5 Watts, 441; whether the improvement be made by the owner or an intruder: Green v. Watson, 10 Casey, 332. The identification of land sold as unseated is for the jury in case of dispute: Ilussel v. Werutz, 12 Harris, 337; Miller v. Hale, 2 Casey, 432; and Harper v. McKeehan, 3 W. & S., 238. A sale in satisfaction of an assessment of taxes conveys a good title to the purchaser. The name of the warrantee and township are circumstances of description, and if these do not accord with the actual facts the identity of the laud may be established by evidence which will be satisfactory to the jury: Woodside v. Wilson, 8 Casey, 52; Straucli v. Shoemaker, 1 W. & S., 166.
109 Pa. 554Appeal of Wilkes-Barre (1885)
Appeal from the Court of Common Pleas of Luzerne county in Equity : Of January Term 1885, No. 429. This was a bill in equity filed February 6th, 1885, by Lewis S. Jones, John W. Hollenback and H. H. Derr, citizens and taxpayers of Wilkes-Barre, as well for themselves as for such other citizens and taxpayers as might thereafter be made additional complainants, and the City of Wilkes-Barre defendant. The bill averred that the total value of the taxable property-in said city, according to the last preceding assessed valuation therein was $3,725,142.00. That the gross debt of said city was $134,980.56, which said debt was incurred at times and amounts as follows:— 1. Bonds issued May 1st, 1884, know.n as exten- sion debt of 1874, to extend and refund other bonds issued prior to the adoption of the Constitution of Pennsylvania of 1874, .... $80,000 00 2. Bonds issued June 1st, 1887, known as funding debt bonds, to refund and extend certain bonds issued by said city prior to the adoption of the Constitution of 1874, amounting to $12,600.00, and to fund a floating indebtedness incurred by said city between the date of its incorporation, in 1871, and the date of tlie issue of said bonds in 1877,..... 25,500 00 3. Bonds issued November 1st, 1882, known as sewer bonds,.......... 60,000 00 4. Accrued interest on said securities, .... 3,960 00 5. Floating debt of said city,....... 15,520 56 Total gross indebtedness,........$134,980 56 Deducting therefrom the moneys in the treasury, outstanding solvent debts and revenues then applicable within the fiscal year to the payment of said debt,.........$63,602 39 The indebtedness of said city, calculated according to the 5th Section of the Act of 20th April, 1874, (P. L. page 65,) was .... 71,878 17 That the Council of said city had passed certain ordinances for the building of engine houses, the purchase of fire apparatus, and paving; increasing her indebtedness thereby in the sum of $62,500, — that this amount added to the said indebtedness $71,378.17 would increase the indebtedness of the city to $133,878.17 or more than two per cent, of the taxable property of the city, and that after deducting the amount of bonds issued to refund bonds issued prior to the adoption of the Constitution of 1874 ($42,600,) it would increase the indebtedness of the city to $90,278.17 or more than two per cent, of the taxable property of the city, and that the city authorities were about to issue bonds for such indebtedness without complying with the 3d section of the Act of April 20th, 1874, (P. L. p. 65) requiring tlie assent of the electors of the city duly obtained at a public election to bo held therein. Tlie bill prayed for an injunction restraining tlie defendant from incurring the indebtedness, or so much thereof as should be determined to be unauthorized without having first obtained the assent of tlie electors of tlie city in accordance with the third section of the said Act. The answer admitted the material facts of the bill, but alleges that of the $25,500 bonds issued in 1877, $12,000 was issued to refund city bonds issued prior to 1874, and the balance was credited to the general fund, out of which there was afterwards paid $3,862.14 for a certain mortgage given by the city in 1873. The cause was heard on bill and answer and the court below granted the injunction, Rice, P. J. delivering the opinion of-the court, in part as follows:— “It is an admitted fact that the amount of the proposed increase of debt ($62,500) is, in itself less than two per centum of the assessed value of the taxable property. For the purposes of the present hearing, we think it must also be taken as an admitted fact, that when added to the present net indebtedness (after deducting from the same such portion thereof as was in existence on January 1st, 1874) the aggregate will exceed two per centum of the assessed value — as will be seen by the following figures: Total debt,.............$139,980 56 Money in treasury, outstanding solvent debts, and revenues applicable within the present fiscal year to the payment of said debt, . . 63,602 39 Net debt,...........$71,378 17 Deduct portion of present debt which was in existence January 1st, 1874, represented by the following amounts, viz : Refunding bonds of 1884, . . . $30,000 00 Bonds of June, 1877,..... 12,600 00 Mortgage,......... 3,862 14 ■--$46,462 14 $24,916 03 Add proposed increase,......• . . 62,500 00 Aggregate,.............$87,416 03 Two per centum of assessed value,..... 74,502 84 Excess of aggregate debt over two per centum of assessed value,.........$12,913 19 ****** * “ The defendants’ counsel contend, that it is only in cases where the indebtedness proposed to be created will, taken by itself, exceed two per centum of the last assessed valuation of property, that the question must be submitted to a vote of the people. The plaintiffs’ counsel contends, that, in determining whether the municipal authorities may incur the proposed indebtedness without the vote of the people, the existing indebtedness incurred since the Constitution of 1874 went into effect must also be taken into account, and if both together, (after deducting money in the treasury, outstanding solvent debts and revenues applicable within the fiscal year to the payment of said debt) will make an aggregate exceeding two per centum of the assessed value of property, then the question must be submitted to a vote of the electors. According to the former construction there is nothing to prevent the municipal authorities, without a vote of the electors, adding to the indebtedness, until the seven per centum limit is reached, provided the debt incurred at any one time does not exceed two per centum; while, according to the latter construction, the authority of the municipal authorities to incur debt without the consent of the electors will be, for the present, exhausted when two per centum of the assessed value of the taxable property has been added to the present debt, which was in existence on January 1st, 1874. We are requested to decide between these conflicting theories as speedily as possible, in order that the question may be brought at once before the Supreme Court. We appreciate the importance of the question, and we hasten to decide it in order that it may be reviewed at the present term. The time allowed will, however, permit no more than a statement of our conclusion, that the construction contended for by the plaintiffs seems to best accord with the plain meaning of the terms used in the section, to most surely carry out the purpose which the convention and the people had in view in its adoption, to be the sense which the Legislature gave to it (see Section 2, Act April 20,1874 — supra), and to be required by the decisions, so far as opinions have been expressed by the Supreme Court upon the particular question. In Wheeler v. Phila., 27 P. F. S., 852, the court said: ‘ The municipal authorities may increase the debt from time to time until two per centum has been added, provided the original debt, with the increase, does not exceed seven per centum. After the two per centum has been added, there can be no further increase without the vote of the people.’ Language could not be plainer, and, unless we entirely misapprehend the meaning of the court, it was approved in Pike Go. v. Rowland, 18 Nor., 238. For these reasons we hold that, on the admitted facts, the municipal authorities may lawfully increase the present debt by @49,586.81, but that they cannot go beyond that amount without submitting the question to a vote of the qualified electors of the city and obtaining their assent.” The court entered the following decree: “ Now, 9th March, A. D. 1885, this cause came on to be heard at this term, and was argued by counsel and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, viz: That the city of Wilkes-Barre, the respondent herein, her-officers and agents be enjoined and restrained from increasing the indebtedness of said city for the purposes declared iu the bill, in an amount under the present assessment exceeding the sum of forty-nine thousand five hundred and eighty-six and eighty-one one hundredth dollars without first having obtained the assent of the electors of said city at a public election held in accordance with the provisions of the third section of the Act of 20 April, 1874 (P. L., 65), and the said respondent is further enjoined from issuing bonds or other obligations for any sum or sums in excess of said amount.” The city of Wilkes-Barre thereupon took this appeal, assigning for error the making of the said final decree. The two per centum restriction ivas to prevent increases by temporary officers in large sums at any one time without an election. It was not intended that when the debt is less than 7 per cent, the officers should be deprived of power to make immediate improvements provided they keep within 2 per cent: Judge Thunkey in Pike Co. v. Rowland, 94 Pa. St., 249. The clause was explained in the Constitutional Convention as referring to an increase- exceeding two per cent.: 6 Cons. Deb., p. 143. It does not appear that the debt now proposed is to be added to a debt incurred three years ago, in order to determine the sum to be measured by the 2 per cent., any more than it appears that the old debt is to be added to a debt in existence when the Constitution of 1874 was adopted. If one addition should be made the other should. The construction contended for by the defendants in error would unjustly discriminate against cities that had small debts and few improvements at the adoption of the constitution. If indebtedness existing then is to be considered, municipalities will indefinitely refund their old loans so as not to reduce their money-raising power. The increase proposed without the intervention of the electors of the city is clearly contrary to section 8, Art. IX of the Constitution, and the Act of April 20th, 1874: Wheeler v. Philadelphia, 77 Pa. St., 852; Pike Co. v. Rowland, 94 Id., 238.
109 Pa. 560Wright v. Commonwealth (1885)
Error to the Court of Common Pleas of Luzerne county : Of January Term 1885, No. 302. Quo warranto, by the Commonwealth ex rel. H. A. Fuller et al. against George R. Wright, Isaac Long, George H. Parrish, Sheldon Reynolds and William M. Miller, to ascertain by what right the said respondents act as directors of the Wilkes-Barre Electric Light Company. The facts were as follows : The said company was incorporated under the General Corporation Act of April 29th, 1874. Its by-laws provided, inter alia, that “ the regular annual meeting of the stockholders shall be held on the first Wednesday of December in each year” and that “at the regular annual meeting of the stockholders the judge or officer being first duly sworn shall hold an election by ballot for the purpose of choosing a board of directors......The seven stockholders having the highest number of votes shall be declared duly elected to constitute the board of directors, who shall hold their offices for. one year or until their successors shall be elected.” At the regular election of 1884, after a ballot had been taken to select seven directors to serve for the ensuing year, and before the result had been ascertained, the meeting adjourned sine die. The result of the ballot was that five of the candidates received the necessaiy plurality, but that the three next highest received an equal number of votes and therefore failed of au election. A number of the votes cast were cumulated. No adjourned or subsequent meeting was held for the purpose of another election. The respondents, constituting the old board of directors, held that the failure of the stockholders to elect at their annual meeting an entire new board of seven members, invalidated the election of the five who received the highest number of votes at this election, and that therefore the old board held over. Whereupon this quo warranto was brought by the Commonwealth ex rel., H. A. Puller et al., the newly elected directors, against the respondents. The court (Woodward J.,) held in an opinion filed, that the election of the five directors was valid, and that they, being a quorum of the board, could act as such ; that the vacancies in the board could be filled at any special meeting called for the purpose after due notice. He therefore awarded judgment of ouster against the respondents, who thereupon took this writ of error, assigning as error the said action of the court. . A partial election of a board of directors of a corporation formed under the Act of 1874, is not valid. It is true that in the cases of People v. Jones, 17 Wend., 81;-Union Ins. Co. Case, 22 Id., 591, and Excelsior Ins. Co. Case, 38 Barb., 297, cited by the court below, such an election was held valid ; but in these cases a special and express power to complete an incomplete election was given either to the corporation or to the court. The very necessity of such special power shows that in Its absence a partial election would be invalid. No such power is given to the corporation in the present ease either by its charter or the Act of 1874, and it is not one of the implied powers that where in every corporation at common law, the stockholders of this company can only fill vacancies in the board of directors cither at the regular annual meeting or at an adjourned meeting thereof. "To contend otherwise is to assert that a corporation which has failed to elect on the day fixed by its charter may do so at any future time. At common law, the failure to elect at the regular meeting worked a forfeiture of the corporation’s franchises. The Act of 1874 so far modifies this as to prevent the forfeiture, not by extending the power of election but by authorizing the old board to hold over until its successors are duly elected: Angel! and Ames on Corp., § 771; Hose v. Turnpike Company, 3 Watts, 46 ; Philips v. Wickham, 1 Paige, Cli. Hep., 590. If a board of directors can be elected piecemeal, the minority stockholders might be deprived of that protection wbicli the cumulative system of voting affords them. If all but one director were elected at the first election, how could the remaining director be elected on the cumulative plan? Or if more than one director remain to be elected, shall they who by their cumulating created the pluralities of those who were elected, be permitted to cumulate their votes again in filling the vacancies? To permit the board of directors to be elected piecemeal and at any other than the regular meeting set for the purpose, would certainly introduce doubt and confusion into the management of corporations, and frustrate the design and object of the system of cumulative voting. The fallacy of the argument of plaintiffs in error is in confusing the power to complete an election with that of the validity of a partial election. The election of the five directors who received pluralities is valid even if it be conceded that the corporation has no power to fill the vacancies caused by the failure to elect the remaining two members : Union Ins. Co. Case, 22 Wend., 591; Excelsior Ins. Co. Case, 38 Barb., 297 ; People v. Jones, 17 Wend., 81. Nor can the cumulative system affect the validity of this election. The difficulties suggested by the counsel for the plaintiffs in error might arise in the event of a supplementary election to fill the vacancies in the board. They do not arise in the present case and therefore need not be discussed. The case of Pierce v. Commonwealth, 8 Out., 150, is on all fours with .the present one and fully sustains the decision of the court below.
109 Pa. 564Luzerne County v. Glennon (1885)
1. For the purpose of classification of counties under the Salary Acts, the United States decennial census is the sole test of population. The population at any intermediate time cannot be proved, as a fact, but each county must remain in the class in which the last census found it until it is transferred to another class by a subsequent census. 2. A statement, in a case stated, that when a certain county officer entered on his official duties the population of the county “ was over 150,000, and less than 250,000, based upon the reasons incorporated in the following paragraph,” is not such an admission of the fact as will warrant a judgment based upon it.
109 Pa. 572Pennsylvania Coal Co. v. Winchester (1885)
458. This was an action of ejectment by Anna L. C. Winchester, widow, and Martha C. Winchester and Byron B. Winchester, by his guardian Martha C. Winchester, heirs of Stephen S. Winchester, deceased, against the Pennsylvania Goal Co. et al. to recover a certain tract of land,being an island, in the Susquehanna river in Exeter township, Luzerne county. Plea, not guilty.
109 Pa. 579Poor District v. Poor District (1885)
1. Under the Act of Juno 13th, 1836, where an appeal from an order of removal of a pauper is sustained, and a reasonable sum is awarded , by the court to the appellant for costs and. charges, the court may, at the same session, if demand is then made, award such additional sum as will reimburse appellant for the amount paid towards the relief of the pauper between the time of removal and the determination of the appeal. But if no such demand be made at the same session, the right to recover such sum is not lost; a claim therefor may subsequently be filed and allowed by the court. The two claims being separate and independent, the adjudication of one is not res adjudicata as to the other.1 2. Overseers of Williamsport v. Eldred Township, 6 W. 1ST. O., 188, followed.
109 Pa. 583Delaware, Lackawanna & Western Railroad v. Sanderson (1885)
1. A. entered into a, written agreement with B., “leasing” to him “all the coal beneath the surface of a certain tract of land,” of which A. was tbe owner. B. covenanted to mine and remove in each year at least a certain number of tons, and to pay therefor, whether mined or not, a specified sum per ton, unless mining was prevented by certain specified contingencies. Failure to pay for thirty days gave the “lessor” the right of distress, and for sixty days, if there were no goods subject to distress sufficient to pay the royalty, the lease could be forfeited at the option of the “ lessor,” who could re-enter without action at law. The “lease” was made “ perpetual until all the coal is mined,” and the rights conferred by the lease were extended to the heirs, executors, administrators and assigns of the respective parties. B. covenanted to pay all taxes on coal mined without recourse to A. to refund the same. In an action by B. against A. to recover taxes levied on the coal in place and paid by B. under protest — Held: (1) That the agreement wasnot a lease but an absolute sale of the coal in place, and operated as such a severance of the surface and subjacent strata as would render the vendee liable for all taxes levied upon the coal in place, and would relieve the vendor from liability for same. (2) That such liability arises from the nature of the estate granted, and the vendee is not relieved therefrom, on the principle inclusio unius est exclusio atterius, by his express covenant to pay all taxes on the mined coal. 2. Sanderson v. City of Scranton, 9 Out., 409, followed.
109 Pa. 592Booz's Appeal (1885)
1. The building association Act of April 12th, 1859, P. L. 544, was general in its nature and impliedly repealed former Acts under which building associations had been chartered. The Act of March 26th, 1867, P. L. 44, authorizing the courts of Common Pleas to grant charters to building associations conferred no new power on such courts, nor did it define the powers of such associations chartered under it; to ascertain which recourse must be had to the general Act of 1859. 2. A building association organized in 1870 will be deemed and taken to be incorporated under the provisions of the general Act of April 12th, 1859, P. L. 544. 3. The powers of a building association are to be gathered from the statute under which it was organized rather than from the articles of association, and in case of a conflict the former must prevail. When the articles of association contain a provision repugnant to the provision in the statute upon the same subject matter, the corporation may pass a valid resolution or adopt a by-law in harmony with the statutory provision even though it be inconsistent with the articles of association. 4. The constitution of a building association provided that a withdrawing member “ shall receive the amount of dues actually paid in, first deducting all fines and charges.” The association ceased to lend its funds which began to accumulate, and accordingly passed a by-law granting to each withdrawing member “the amount of dues actually paid in and fifteen per cent, per annum interest thereon, first deducting all fines and charges.” This fifteen per cent, was at the time of the adoption of the by-law a fair bona fide estimate of the accumulated profits. Held, in a bill in equity filed by non-withdrawing stockholders, that the by-law was not ultra vires notwithstanding the said q>rovisions of the constitution, but was valid under the general Act of April 12 th, 1859, P. L. 544, which authorizes withdrawing members to receive the amount paid in by their first deducting all fines and charges “ and such proportion of the profits as the by-laws may determine.” 5. A building association may authorize its borrowing members to withdraw and be released from further liability upon the payment of dues, interest and fines up to a specified time, ana may afterwards resolve that such permission shall remain open only until a certain date. Borrowing members who fail to avail themselves of their opportunity before the date so determined, cannot do so afterwards.
109 Pa. 600Gilchrist's Appeal (1885)
9. Appeal of John W. Gilchrist, receiver of taxes for tbe city of Wilkes-Barre, from a decree of tbe Court of Common Pleas of Luzerne county, enjoining him from collecting county and local taxes assessed upon certain coal beds of tbe Delaware, Lackawanna and Western Railroad Company, situated beneath the Susquehanna river, opposite tbe city of Wilkes-Barre.
109 Pa. 606Appeal of Wilson (1885)
Appeal from the Court of Common Pleas of Montgomery county : Of January Term 1884, No. 389. This was an appeal by William Wilson from a decree of the said court refusing to open a certain judgment, wherein Elias Kirk was plaintiff and the said Wilson defendant, and let the latter into a defence. The facts of the case, as set forth in the depositions taken sur rule to show cause why the said judgment should not be opened, &c., were as follows: On March 1st, 1883, Elias Kirk, by articles of agreement sold to William Wilson seven acres of land in Montgomery county, which in part were used as a coal yard, for fifteen thousand dollars. The articles stipulated that one thousand dollars were to be paid at the execution of the agreement, four thousand dollars on or before April 1st, 1883, “ when possession and a title is given,” and the balance to remain on a mortgage. At the time of the agreement, one Kline Van Winkle was in possession of the portion of the property used as a coal yard under a lease which expired April 1st, 1883, but which had been renewed for one year. Wilson’s depositions set forth that when the agreement was signed, Wilson said to Kirk, “Mr. Kirk, I hear that Kline Van Winkle has this place rented from you. Now how is this? Can you give me possession April 1st ? ” and that Kirk replied, “ I’ve rented to him, provided I don’t sell,” and further promised Wilson possession at the date agreed upon. That upon this understanding Wilson signed the agreement, and paid the $1,000, and that on March 26th, 1888, at Kirk’s request, and as an accommodation to him he paid the second instalment of $4,000, gave the mortgage and bond for the balance agreed upon to Kirk, and received from him a deed for the property. That on attempting to take possession of the coal yard on April 1st, 1883, Wilson ascertained for the first time of the said renewal of Van Winkle’s lease, and was unable to obtain possession until its expiration ; Kirk’s deposition set forth, however, that Wilson had received full notice of the said renewal before the signing of the agreement, and had voluntarily paid the money on March 26th, 1883, and received his deed for the property. Wilson on failing to receive possession of the coal yard refused to pay the interest on the bond and mortgage for balance of purchase money, and thereupon Kirk entered this judgment under the warrant of attorney accompanying said bond and mortgage against Wilson. Thereupon this rule was taken by Wilson to open the judgment and let him into a defence. The court (Boyer,, P. J.) discharged the rule, holding, in an opinion filed, that in accepting the deed and giving his bond and mortgage prior to April 1st, Wilson waived his right to possession under the written articles, and that for this reason and in view of the conflicting character of the testimony the court would leave him to his action at law for damages, if auv he had. Thereupon Wilson took this appeal, assigning for error the discharge of his rule.
109 Pa. 610Heydrick's Appeals (1885)
1. A. who was executor of B., and administrator of the estate of C. tbe wife of B., filed his account, at the same time. Under B.’s will C. was entitled to a life interest in his estate. A., as administrator of C.’s estate claimed credit, in his account, for the balance due from him to B.’s estate, claiming that B. had received that amount from him in her life time and had used it as her own. He was himself the only witness offered to prove his claim. Held, that A. had “ an interest in the subject matter of controversy” and therefore was not rendered a competent witness by the Act of March 27th, 18C5 (P. L. 38), to prove the credit claimed.
109 Pa. 613McGuire v. Borough of Shenandoah (1885)
1. Section 14 of Article V. of the Constitution of Pennsylvania, pro- - vides “In all cases of summary conviction in this Commonwealth or of judgment in suit for a penalty before a magistrate or court not of . record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court or judge thereof upon cause shown.” Held, under this provision of the Constitution, that in the eases therein mentioned the magistrate or justice of the court not of record has no power to grant an appeal, and therefore cannot be compelled to do so by a mandamus from the appellate court. 2. The Act of April 17th, 1876, (P. L. 29,) was designed to carry into effect the above section of the Constitution, and prescribes the court to which and the manner in which appeals are to be taken in the cases mentioned.
109 Pa. 617Parcell v. Grosser (1885)
A. entered into a written agreement with B. for the salo lo B. of certain real estate. B. entered into possession but received no deed therefor, A. retaining the same under the agreement as security for the unpaid purchase money, which was to be paid in two years, when, the conveyances were to be made. In an action by A. against B. to recover the unpaid imrehaso money, B. offered to prove that at the time of the written agreement a parol agreement liad been made by which A. also retained a policy of insurance, which ho had taken out on the buildings previous to the agreement of sale, and which had two years to run, as further security for the purchase money; that by his negligence in failing to comply with its conditions, it had become void; that a year after the agreement the buildings had been destroyed, and a loss occasioned B. equal to the unpaid purchase money, field — - (1) That lids offer of evidence was not a parol variance of the written agreement of sale, being distinct therefrom and collateral thereto. (2) That it disclosed a good defence to A.’s claim, as the proceeds of the policy, had it been kept alive, would have been held in equity by A. as trustee for B. (8) That it was incumbent upon A. to comply with the conditions of the policy, and his negligent failure to do so, and its consequent loss to B. were a good defence pro tanto to A.’s action.
109 Pa. 621Landis v. Roth (1885)
1. A promise to pay a debt barred by the Statute of Limitations will operate to remove tlio bar of tho statute only when tho particular debt is unequivocally identified and acknowledged by the debtor at the time of the promise. Any uncertainty, either in the acknowledgment or identification of the debt is fatal. 2. In a suit on a note more than six years overdue the plaintiff testified that he went to defendant and said to him, “ T come for money; ” defendant replied, “ I will pay you $600, in thirty days, on the note. I will pay you the rest as quick as I can, but you must not be too hard on me.” When he had said that, his wife said: “ We will pay you every dollar, if we have to pay you out of our pocket.” Defendant then said: “ Yes, we will pay you.” Held, that' this evidence of a promise was insufficient to remove the bar of the statute.
109 Pa. 625Schutt v. Evans (1885)
1. All consecutive securities growing out oí a usurious contract are tainted therewith, and none of them, however remote, can be free from it, ii the descent can be traced. 2. A. was an accommodation indorser on B.’s note to C. The notewas renewed several times, and each time the new note included usurious interest. B. becoming insolvent, still another notewas made out in A.’s name, dropping B. from the transaction. Suit being brought upon tills note: Held, that A. had a defence to the note to the amount of the usury. 3. Bly v. Bank, 29 P. 1?. S., 453, and Maeungie Bank v. Iiottonstein, 8 Norris, 328, distinguished.
109 Pa. 629Hamilton v. Hart (1885)
Where a sealed contract expressly provides for the manner in which certain of its terms maybe altered by the parties, pending its performance, such alterations will not reduce the specialty to a contract by parol; the contract remains a specialty, and an action founded upon it must be in covenant or debt — assumpsit will not lie.