113 Pa.

Volume 113 — Pennsylvania State Reports

79 opinions

113 Pa. 1Shaeffer v. Hoffman (1886)
1. To take a case out of tlie Statute of Limitations it is not essentially necessary that the promise be actual or express, provided that the other necessary facts are shown. A clear, distinct, and unequivocal acknowledgment of the debt, an admission consistent with a promise to pay is sufficient. The law in such a case will imply the promise without its having been actually or expressly made. 2. The debtor acknowledging the execution of the note, saying “ it must be fixed, I and W. will have to pay it,” is not such an acknowledgment of the debt as implies a promise that he will pay it, and does not, therefore, toll the statute.
113 Pa. 6Loverin, Hall & Co. ex rel. Gunnison v. Humboldt Safe Deposit & Trust Co. ex rel. Burton (1886)
306. This was a feigned issue in which the Humboldt Safe Deposit & Trust Company to the use of John Burton, D. D. Barnes and E. L. Sprague was plaintiff, and Loverin, Hall & Co. to the use of Noble and Hall, to the use of H. B. Plumer now for the use of Frank Gunnison were defendants, to try the validity of a judgment obtained upon a scire facias sur mortgage held by the defendants, and which they claimed was the first lien on certain real estate.
113 Pa. 11Finney's Appeal (1886)
Appeal from the Orphans’ Court of Northumberland county: Of January Term, 1886, No. 461. Appeal of Spencer L. Finney, executor of the last will and testament of Elizabeth Housel, deceased, from a decree of said court confirming the report of George Hill, Esq., Audit- or, appointed by the said court to distribute the funds in the hands of E. C. Voris, executor of the last will and testament of John M. Housel, deceased, and overruling the exceptions filed to said Auditor’s report. The following are the facts as they appeared before the Auditor. John M. Housel, the decedent, died on the 16th day of March, 1884. About fifteen years before his death he married Elizabeth Miller, a maiden lady residing in the borough of Milton, Pa. At the time of his marriage Mr. Housel was a -widower, with three adult male children living, and a large number of grandchildren. Mrs. Elizabeth Housel (née Miller) was the owner of a house and lot situate on Front street, Milton, which dwelling was occupied by Mr. and Mrs. Housel from the date of their marriage until the date of their respective deaths. Mrs. Housel survived^ her husband about two end one half months. She died without issue. Both left wills. Oq the 2d day of April, 1868, before her marriage to Mr. Housel, Elizabeth Miller executed to one Dr. Charles Dougal a mortgage for the sum of $2,400, which was subsequently assigned to Mr. Housel for the consideration of $1,500. After hermarriage, viz., on the 15th day of March, 1871, Mrs. Housel executed another mortgage on the premises before mentioned to one Hannah B. Kauffman for the sum of $1,000, which mortgage was also subsequently assigned to John M. Housel, the decedent. In the will of Mr. Housel he referred to judgments which he there alleged he held against his wife. .Upon a search being made by his executor no judgments could be found of record, consequently he interrogated Mrs. House!, the widow, in regard to the matter. She said she owed her husband $2,500, and would confess judgment for that amount to him (the executor), which she accordingly did. After the death of Mrs. Housel the above mortgages were discovered upon the record. Before the discovery of the mortgages the judgment, to wit, $2,500, and interest from the date of the death of Mrs. PIousel, $88.75, were paid to Mr. Housel’s executor, and now form a part of the fund for distribution. Mrs. Housel left a will appointing S. L. Finney her executor, who converted her entire estate into money. All of her real estate (being that above mentioned) brought, at public sale, the sum of $4,600; her personal property sold for $181. Before her death, viz., on the 2d day of April, 1884, Mrs. Housel served a notice on the executor of her late husband in form as follows: “Elijah Yoris, Esq., Executor, &c. “ Sir. — You are hereby notified that I, Elizabeth House!, widow of deceased, make claim for $300 out of the estate of my deceased husband, which is allowed by law. I desire' said sum to be paid me in cash. “ Respectfully yours, &e., “ Elizabeth PIousel.” Mr. Housel’s estate consisted almost entirely of evidences of debt. Among the assets of his estate were found $109.24 in money, household goods, bonds of the borough of Milton to the amount of $800, payable to John M. Housel or bearer, &c. These bonds, and all other evidences of debt, were realized upon by tbe executor of Mr. Housel at their face value after the service of the above notice. John M. Housel’s creditors, his children and grandchildren, and the executor of his widow, Elizabeth Housel, were claimants before the Auditor. There were two questions raised before the Auditor, and by exceptions to the Auditor’s report, before the court. 1. Whether, under a proper construction of Mr. Housel’s will, his widow would have been entitled to receive, and, consequently, whether her executor is now entitled to receive, the one third of his estate absolutely, or should the amount realized upon the judgment given by Mrs. Housel in her lifetime to Mr. Housel’s executor be deducted, and one third of the balance distributed to her executor. Mr. Housel’s will, inter alia, provided as follows: “ Item.- — I give and bequeath to my beloved wife, Elizabeth Housel, all my household furniture or goods during the term of her natural life, and direct that no security be required from her for the same, and I also give and bequeath unto my said wife, Elizabeth Housel (after my just debts and funeral expenses shall have been paid and fully settled by my executor), the one third of my personal estate to her own use and benefit absolutely. The household furniture shall not be included in the appraisement of my personal estate as aforesaid.” “Item. — As I hold judgments against my said wife, Elizabeth Housel, which are entered up in the Court of Common Pleas of Nothumberland county against the property which I now occupy, it is my will, and I so direct, that no part of said judgments shall be collected by my executor or heirs from my said wife, Elizabeth Housel, during the term of her natural life, but the same shall be kept revived as a lien against her property aforesaid until after her decease, and after her death the proceeds thereof shall be divided equally among my surviving children and the children of such as are deceased, the said children of such of my children as are deceased to take the share of their respective parents.” 2. Whether the widow, under her claim for $300, would have been entitled to receive, and, consequently, whether her executor is no'w entitled to receive, $800 from the estate of John M. Housel, deceased, or can he receive only the amount of money on hand at the time said claim was made, to wit, $109.24. The Auditor reported adversely to the estate of the widow as to both questions. Exceptions were filed to this report by the executor of Elizabeth Housel, deceased, which were overruled by the court, Rockefeller, P. J., and the report confirmed. Spencer L. Finney, executor of Elizabeth Housel, deceased, thereupon took this appeal, assigning for error the overruling of his exceptions and the confirmation of the Auditor’s report.
113 Pa. 19Eberts v. Thompson (1886)
II. A. contracted to sell to B. the undivided one half of a tract of land for $1,200, payable as follows: $300 in cash and “ B. to let A. have all the timber on said la,nd for the other $900. ’ C. owned the other undivided one half of said tract of land. A. claimed from B. all the timber on the tract. B. offered him the timber sold him by said contract. In an action of ejectment by A. against B., Held that,under the contract A. was entitled 1o take only the timber sold B. by said contract. 2. The court has no power in an action of ejectment, there being no question of law reserved to enter judgment non obstante veredicto.
113 Pa. 29Conlyn v. Parker ex rel. Watts (1886)
420. This was an action on a scire facias brought by John B. Parker, for the use of Frederick Watts in trust for Sarah II. Parker against Thomas Conlyn and Margaret Barber to revive and continue the lieu of judgment No. 174, January Term 1874. Pleas, payment with leave and as to Margaret Barber the additional plea of coverture.
113 Pa. 32Appeal of the Lutheran Congregation of Union Church (1886)
433. Appeal of the Lutheran Congregation of the Union Church of Whitemarsh, the Trinity Reformed Church of Norristown, and the St. Paul’s German Lutheran Church of Norristown from the decree of said court confirming the Auditor’s report making distribution of the fund in the hands of John Espenship, executor of the last will and testament of Lydia Benner, deceased.
113 Pa. 37Commonwealth v. Railing (1886)
Tlio 87th section of the Criminal Code took the crime therein specified, procuring miscarriage, resulting in the death of the child or the woman, out of the class designated as murder, and made it a felony of lesser grade, and prescribed the punishment therefor; hence if one cause the death of a woman, in attempting to procure a miscarriage, he can not be indicted for murder.
113 Pa. 46Killpatrick's Appeal (1886)
Appeal from the Orphans’ Court of Erie county : Of July Term, 1885, No. 96. Appeal of John Killpatrick, as next friend of Mary Belle Killpatrick and Hattie May Killpatrick, minor children of Daniel Killpatrick, deceased, from a decree of said court dismissing his exceptions and confirming the report of the Auditor appointed to re-state the account of Thomas E. Kendriok, guardian of said minors. The following are the facts as found by T. A. Lamb, Esq., Auditor: Daniel Killpatrick died December 13th, 1876, leaving surviving liiin a widow, Harriet E. Killpatrick, and two children, Mary Bello Killpatrick and Hattie May Killpatrick. Letters of administration on his estate were issued to the widow, Harriet E. Killpatrick, and C. K. Riblet, and shortly after Killpatrick’s death Thomas E. Kendrick was appointed guardian of the children, they then being minors under fourteen years of age. The administrators proceeded with the settlement of the estate, and April 6th, 1877, filed a final account. To this account exceptions were filed March 18th, 1878, in the name of the guardian, although from the evidence it appears that John Killpatrick caused them to be filed without authority from the guardian. By these exceptions it was sought to surcharge the administrators with some @1,673.10, @1,000 of which was for furniture. The guardian made some examination as to the exceptions, and finally being satisfied that they were not justified, on September 24th, 1878, asked leave to withdraw them, which was granted by the Court, and the estate settled in accordance with the account filed. February 6th, 1882, the guardian, Thomas E. Kendrick, filed his account. To this John Killpatrick as the uncle and next friend of the minors, filed exceptions. The date of filing is not noted thereon, but it seems to have been March 4th, 1882. In the exceptions it was alleged that separate accounts should have been filed with each minor; that the guardian had not charged himself with all money received, nor with all rents, nor with all interest, and that the guardian should not be allowed credit for money paid for repairs, nor ditching, nor services. These exceptions were referred to your Auditor. March 27th, 1882, the said Killpatrick, as next friend of the minors, obtained leave of the court to file, nunc pro tunc, as of March 4th, 1882, additional exceptions, as follows: 1. “ The said guardian has not accounted for the personal property belonging to the wards which has come into his hands and under his control.” 2. *■ Tiie said guardian should be surcharged in the sum of @2,000 for losses sustained by his wards through the gross negligence of him, the said guardian.” These exceptions were also referred to your Auditor. The exceptants allege that the guardian should have surcharged the administrators of Daniel Killpatrick, and the gross negligence complained of arises from his refusal to attempt so to do, and permitting the account filed by them to be confirmed. The first of these exceptions filed March 4th, 1882, is dismissed. It undoubtedly is the better practice to file separate accounts with each ward, but I do not find that it is absolutely necessary so to do. Weyand’s Appeal, 12 P. F. S., 198. The second,Third, and fourth exceptions, filed March, 1882, are also dismissed, no testimony having been offered to sustain the exceptions of either of them. The fifth exception is as follows: “The said guardian is not entitled to any credits for money paid for lumber, nails and other materials used in repairing and constructing buildings on the lands belonging to his wards.” There has been much testimony taken as to the repairs on the buildings and the construction of a shed and ice house. It is impossible almost to state the testimony here at length. On the part of the exceptant it is contended that no such amount of repairs has been made as charged for ; and further, that, as they were made without the order of court, the guardian is not entitled to credit therefor. The accountant alleges not only that the repairs charged for were made, but that no more were made than was absolutely necessary to save the property from waste. Upon a careful examination of the whole matter, I am of the opinion that not only was the guardian justified in making the repairs on the buildings which he caused to be made, but that it was his duty so to do. It is impossible, from the evidence offered, to come to any other conclusion than that these repairs were greatly needed to save the property from absolute waste. The guardian seems to have acted with good judgment, and with no other object in view than the welfare of his wards. So much, therefore, of this exception as relates to repairs, or money expended therefor, is dismissed. This exception also covers expenditures for an ice house and a shed erected for the protection of the barnyard from the winds. The evidence, or rather the weight of it, shows this shed to have been necessary, although it appears that for some years at least prior to Daniel Killpatrick’s death none had been there. The ice house is spoken of as a necessity by some and a great convenience by others. I find that the shed was necessary to the proper protection of the stock, and the ice house a great convenience. Both, however, were new erections, and neither was absolutely necessary. Under these circumstances I think the guardian should be charged with their cost. I feel reluctant so to decide, because if application had -been made to the court I have no doubt the expenditures would have been sanctioned; but under the rule laid down in Ebert v. Ebert, 5 P. F. S., 110, and in Scott on the Intestate Law, pages 74, 75 and 83, and cases cited in the notes, I do not see how any other conclusion can be arrived at. The money was not expended in repairs but in new erections not absolutely necessary to the due enjoyment of the estate. For the same reason the sixth exception must be sustained, and the guardian surcharged with money paid out for the tile and ditching. - There is no doubt that this expenditure greatly benefited the estate, and was one which the court would have approved of if requested so to do. But, under the rule as established in this Commonwealth, such expenditures cannot be made without the sanction of the court. The Auditor cannot act in the place of the court. Indeed, it may be a question whether the court can sanction such improvements after they have been made. The Auditor also directed the costs of the proceedings to be paid out of the funds of the estate. To this report both the accountant and the exceptant filed exceptions. The exceptions of the accountant were sustained, and the exceptions of the exceptant were dismissed, the Court (Galbraith, P. J.,) filing the following opinion: The exceptions iu this ease were filed by John Killpatrick, an uncle of tlxe wards, and who appears entirely as a volunteer and without any interest whatever, except such as his relationship to the minors may be presumed to give him. No dissatisfaction appears to have been expressed by the mother of the minors, with the management of their interests by the guardian, nor by the wards themselves, who are now of an age to understand business matters and quite competent, in fact, although not in law, to object to any mismanagement of their interests. Without stopping to discuss the question raised as to the right of the exceptant to appear as objecting to the account, the question raised will bo decided as if the exceptant had been designated as next friend by the court and thus authorized to appear on behalf of his nieces. The Auditor was in his as to the amount charged for repairs and in dismissing the exceptions to the items charged for money thus expended. It is doubtless true that as a general rule a guardian cannot legally charge for improvements made upon the land of his ward, without an order of Court permitting such expenditure. As said in the case of Ebert v. Ebert, 5 P. P. S., 120, the guardian makes such improvements at his own risk, otherwise he might improve his wards out of their property. But it does not follow from this that when improvements have been judiciously made in good faith, the court may not afterwards sanction them, and allow for the moneys thus honestty expended. It is all within the sound discretion of the Orphans’ Court. Here the evidence clearly shows that the shed was necessary, and the ice house a great convenience. The Auditor, in his opinion, says that he decides to surcharge the guardian with the-amount of these items with reluctance, and expresses the belief that if an application had been made to the Court the expenditures would have been sanctioned. . How, while the Auditor, in the absence of an order of Court, felt himself constrained to decide against the allowance of the items in question, there having been no previous order of the Court permitting such improvements, it is in the power of the Court to prevent the injustice which would follow from surcharging the accountant with the amounts thus judiciously and fairly spent for the benefit of his wards, now to approve and sanction his cause by allowing the disputed items as the Auditor could not do. Accordingly the exceptions, on part of the guardian, are sustained and the expenditures approved. The only remaining question is that of the disposition of the costs. The Auditor at first directed that John Killpatrick, .the exceptant, should pay four fifths of the costs and Thomas E. Kendrick, the guardian, the remaining one fifth. He after-wards changed this direction and reported that the costs should all be paid from the funds. This is the same as ordering that the wards, who, with their mother, have been opposed from the first to these proceedings, should have all the expenses of a litigation they had nothing to do with and which their mother and nearest friend persistently discountenanced ; a litigation which, as appears by the evidence and by the report of the Auditor, started out with allegations of wrong and collusion, which have entirely failed of proof, and with charges of errors in the account as against the wards which the evidence has not established. The exceptant is a mere volunteer, and without any legal interest in the matters involved. He has failed to establish the case alleged by him, and there would seem to be no other logic.il'or proper eonclusion than that tbe costs should be paid by him. It is therefore ordered that the account be referred back to the Auditor for re-statement according to this decision, and that John Killpatrick pay the costs of the proceeding. The Auditor restated the account in accordance with the opinion and reported the same. His report was confirmed. John Killpatrick thereupon took this appeal, assigning for .error the dismissal of his exceptions, and the comfirmation of the Auditor’s report.
113 Pa. 52County of Cumberland v. Boyd (1886)
Error to the Court of Cpmmon Pleas, of Cumberland county: Of July Term, 1885, No. 47. This was a feigned issue in the form of debt wherein the County of Cumberland was plaintiff and Hugh Boyd, Samuel Epplejq and A. B. Stroek were defendants. Plea nil debet. The following are the facts as they appeared on the trial of the issue: The defendants were during the year 1884 commissioners of Cumberland county. The county auditors in auditing the commissioners’ account for that year charged them with the sum of $229, being the amount paid on their orders, out of the county treasury, to three justices of the peace in the borough of Carlisle for the commitment of vagrants to the county jail. From this the commissioners appealed. The county of Cumberland petitioned the Court to direct an issue to determine the liability of the county commissioners for the said sum charged against them by the county auditors. This issue was directed as above set out. The commitments were made under the vagrant law of May 8th, 1876. The bills presented by the justices and paid by the defendants were in the form following: Those of Squire Martin, “Cumberland county to J. B. Martin to committing vagrants, Jan. 1st, 1884, Com. v. Sue Osborne, com. to jail at hard labor for 30 daj's, Fem. 25.” Then follows the list of the names of vagrants, the dates, etc., as in the first line, and at the foot of the bill the following certificate : “I hereby certify the above is a correct manuscript, etc., of my docket. Witness my hand and seal this 31st day of January, A. D. 1884, J. B. Martin, J. P.” Those of Squire Green, “Cumberland county to Jas. A. Green to hearing and committing the following persons to jail at hard labor as vagrants. April 1st, 1884, hearing and committing John Rodgers, (cripple) 30 days to jail. 25.” Then follows the list of names, etc., as in the first line, and at the foot of the hill the following certificate: “ I certify the above to he a true copy of the costs in the above cases. Jas. A. Green, J. P.” Those of Squire Ramsey, “Carlisle, Sept. 4, 1884. Commissioners of Cumberland county, Dr. to T. H. Ramsey, J. P. July 16, 1884, John Timpson, vagrant, 30 days to jail, cripple. 25.” And at the foot of the bill the following certificate: “I certify that the above is a correct transcript taken from my docket and proceedings in the above cases. T. H. Ramsey, J. P.” The records made and kept by the justices were in form as follows: Those in Squire Martin’s docket. Down the left hand side of the page was “ Cumberland county ss. Com. v. Sue Osborne, 1884, Jan. 1, Fem,” and a list of twenty-three other names, more or less, one below the other, and a line drawn down the middle of the page, then on the right hand side of the page “ Defendants were convicted before me one of the Justices of the Peace of vagrancy upon their own conf. Be it remembered that on Jan. 1, 2, 8, 4, 5, and 7, the dates set opposite each name, said Def. were convicted before me one of the Justices of the Peace in and for said county of vagrancy contrary to an Act of Assembly, sentenced them to jail at hard labor for 30 days each.” The name of the justice was not signed and did not appear anywhere. Those in Squire Green’s docket “ Be it remembered that I committed and convicted (“and convicted ” being interlined) the following persons to the county jail at hard labor as vagrants on their respective dates and for the causes therein named and to the Almshouse, Sept. 1,1884, Aug’t. Carson, 30 days, cripple, jail.” Then follows line after line the list of vagrants. Those in Squire Ramsey’s docket “1884 commitments for vagrancy on their own confessions to county jail at hard labor 30 davs (30 days being interlined) by T. R. Ramsey, J. P., Oct. 5, Henry Maloy, sick. 25.” Then the list of vagrants. The court upon the trial permitted the justices, under objection, to testify that in each of the cases of vagrancy there had been a conviction and commitment, and allowed the defendants, under objection, to give evidence as to the care they had exercised in the payment of these bills, and of their good faith in the matter. The plaintiff presented, inter alia, the following points: 1. The Act of Assembly of 8th May, 1876, entitled “An Act to define and suppress vagrancy ” was repealed by the Act of 30th April, 1879, entitled “An Act to define and punish tramps.” Therefore there was no authority in law for the justices of the peace to convict and commit the persons to jail as vagrants under the former statute as in these cases, and consequently no liability on the part of the county to pay the fees of the justices for so doing, and the verdict of the jury should be for the plaintiff for the amount claimed. Answer. — This point is refused. We do not think the tramp Act repeals the vagrant Act. (First assignment of error.) 2. The Act of Assembly of 21st April, 1866, prohibits the commissioners of Cumberland countjr from granting any order or orders on the treasurer of said county for the payment of any fees for the arrest or commitment of any vragrant out of the county money; therefore the granting of the orders by the defendants in this case was unauthorized by law, and the verdict of the jury should be for the plaintiff for the amount claimed. Answer. — This Act was repealed by that of 8th May, 1876, entitled “An Act to define and suppress vagrancy.” The latter Act provides for the payment of fees for the conviction and commitment of vagrants. (Second assignment of error.) 3. The .writings made and kept by Squires Green, Ramsey and Martin, and offered in evidence in this case are not such records as the law requires in cases of vagrancy; the said justices of the peace were therefore not entitled to the fees paid to them, and the defendants should not have granted their orders upon the treasurer for the payment of the same, and the verdict of the jury should be for the plaintiff for the amount claimed. Answer. — This is true of that part of those kept or alleged to have been kept by justice Green from January 1st, 1884 to September 1st, 1884; but we cannot so affirm as a matter of law as to the writings or records kept by Martin, Ramsey and Green after September 1st, 1884. The jury will determine -from these writings or records, and the testimony in the case, whether the persons named and for the hearing and commitment of whom fees are claimed had in fact a hearing, and were duly committed as alleged by the defendants to the county jail in accordance with the provisions of the Act of 8th May, 1876. The reason we exclude generally Mr. Green’s bills from January 1st, 1884, to September 1st, 1884, is because he has testified that the only record he kept was one similar to a paper marked “ A.” That paper in no way indicates that the parties charged with vagrancy were committed to the county jail at hard labor, and under a decision rendered in your hearing no fees ought to have been collected by justice Green from the county on such a record. (Third assignment of error.) 4. The matter of good faith on the part of the defendants does not enter into this case at all; it cannot affect their liability to the plaintiff, and the evidence upon that subject should not be considered by the jury. Answer, Good faith on the part of the defendants of itself would not excuse a payment by the defendants unauthorized by law, and you will not regard in the consideration of this case any evidence given by the defendants examined, or on their behalf by their attorney or clerk, who were also examined, which simply tended to show that they did not pay the bills from a, corrupt motive, but only upon the belief that they were just, and the payment proper, and all such testimony is withdrawn from your consideration; but you may consider in the determination of the case, in addition to the records offered in evidence, the testimony submitted by them which tends to show that prior to the payments of the bills in question they examined the same, submitted them to their attorney, and had him make an examination of the records of the justices alluded to as to their liability to pay the same, and what his advice subsequently was ; and if you find such to have been proven, because there seems to have been some discrepancy between the testimony of the defendants themselves and of their attorney as to this point, and also that they compared the bills of the justices with those rendered by the constables, as well as the records of the jail and made a count also of those in the jail to see if the names and. numbers corresponded with those for which the justices claimed fees for the commitment of, as well as all other evidence tending to show that after a full examination it would have appeared to an intelligent person exercising that extraordinary degree of care required of paid agents that the justices had actually rendered the services for which payment was claimed from and made by the defendants to them. (Fourth assignment of error.) 5. Under the evidence in this case the verdict of the jury should be for the plaintiff and against the defendants for the amount charged against them by the report of the county Auditors, to wit: the sum of $229.00, with interest from February 3d, 1885, the date of the filing of said report. Answer. — We cannot affirm this point except as to the bills of justice Green from January 1st, 1884, to September 1st of the same year, to wit: $48.75, which bills show no such commitment as is provided for in Act of 8th of April, 1876. As to the remainder you will determine under the law as given in the answers to the other points presented, and in the general charge as applied to the facts of the case, whether a recovery to the extent prayed for should be had. (Fifth assignment of error.) The admission of the evidence of these justices, that in each of the cases of vagrancy there had been a conviction and commitment was aláo assigned for error. The admission of the evidence of the defendants as to the care they had exercised in the payment of these bills and of their good faith in the matter was also assigned for error. Verdict for the plaintiff in the sum of #48.75. Judgment was duly entered upon the verdict, whereupon the plaintiff took this writ assigning for error, inter alia, the answer of the court to the plaintiff’s points and the admission of evidence as above shown.
113 Pa. 58Baum's Appeal (1886)
Appeal from the Court of Common Pleas of McKean county: In Equity: Of January Term, 1885, No. 61. This was an appeal by B. W. Baum from a decree of said court dismissing a bill in equity in which he was plaintiff, and R. W. Evans and G. A. Berry were defendants. The following are abstracts of the bill and answers : 1. That on the 9th day of May, A. d., 1877,1 entered into a contract with the defendant, R. W. Evans, for the purchase of a certain piece or parcel of land, situate in the township of Bradford, McKean county, Pennsylvania, which the said Evans agreed to convey to mo by a good and sufficient deed of general warranty, for which I agreed and was to pay him the sum of one thousand dollars, in the manner following, to wit: My notes, one for five hundred dollars, payable ten days after the date of the deed for said premises, to be made and executed by him and wife; and my note for five hundred dollars, payable in six months from said date. 2. That pursuant to said agreement, the said B,. W. Evans and wife executed and duty acknowledged a deed of said premises to me; and I, on my part, executed and delivered to the said Evans my two notes for five hundred dollars each, payable as aforesaid, whereupon it was agreed that the said deed should be, and the same was, loft with the defendant, George A. Berry, the attorney of said Evans, to be delivered to me upon the payment of said first mentioned note of five hundred dollars, which wras also left with said Berry by said Evans. 3. That thereafter I called on the defendant, Berry, for the purpose of paying said first'note and securing my deed, where and when I tendered payment of said note, and handed to said Berry the full amount due thereon, including principal and interest, which money the said Berry received and retained, but refused to deliver said deed and note; that I have at all times been ready and willing to, and have fully kept and performed said agreement on my part; that the defendant Berry is in possession of said deed and notes, which are material evidence whereby my rights in the premises may be determined. 4. That the said IL W. Evans fraudulently refuses to deliver said deed, but on the contrary, in violation of his said conveyance of said premises to me, has taken possession thereof, and has commenced mining operations thereon, in disregard and in violation of my rights and equities, and to the great waste and destruction to the said lands and to my rights therein. I pray, 1. That the defendant, Evans, be decreed to deliver the deed and note paid. 2. That defendant Berry be ordered and adjudged to produce the deed to the court. 3. Other relief, etc. Answer of defendant, IL W. Evans: 1. That the truth of said contract is as follows: I did agree to sell to said B. W. Baum the ten acres of land described in said first paragraph, for the sum of one thousand dollars, one half cash and the balance to be secured by the judgment exemption note of said B. W. Baum at six mouths, and in fulfilment of said contract (which was only verbal) I made and executed a deed of general warranty for the said land to said B. W. Baum. When this deed was shown to B. W. Baum he stated that he had not the five hundred dollars to make the cash payment, but offered his note at ten days in payment of said five hundred dollars, said note being simply his commercial paper. This I would not accept, knowing Baum to be irresponsible, and it was then agreed that the deed, duly executed, and the two notes should be placed in the hands of G. A. Berry, an attorney who had drawn the deed, and to be by him held, with the understanding that if the note was paid at the expiration of the ten days, the deed would be delivered to said B. W. Baum. The sale was for cash, and the waiting was a matter of grace, and the deed never was delivered to Baum, nor were Baum’s notes accepted in payment. 2. It is denied that the deed and notes were left with Mr. Berry as my attorney. They were left with him in escrow, as the mutual representative of both parties. 3. As to the fact of the tender made by said Baum to said Berry, I deny that such tender was made at the maturity of the note, the same having been past due some sixteen days before' any payment was tendered to said Berry. 4. I deny that I ever conveyed said lands to said Baum but only agreed to do so upon the contingency of his paying the note when due, and he himself, acting in bad faith, failing to make such payment, and intending to fraudulently take advantage of certain developments in the immediate vicinity of said lands, violated the agreement on his part, and his application to this court.is'against equity and good conscience. 5. I aver that said B. W. Baum has no title or claim of title to said lands (I never accepting the notes nor delivering the deed for the same), but has acted fraudulently and against equity in the premises, and is not entitled to any relief. Answer of G. A. Berry: 1. I deny that I received the deed and notes as the attorney of R. W. Evans. They were placed with me by both parties in escrow, the deed to be given to Baum upon his paying me the sum of five hundred dollars (the amount of the note) within ten days. 2. The said offer to pay referred to by Baum in the third paragraph of his bill, was made some sixteen days after the maturity of the note, and after I had received notice from Evans not to receive the same. I deny that I received the money in payment, as might be inferred from said paragraph, I refusing to do so, and afterwards, on request of said Baum, took the money simply as a tender. I am now ready to deliver the said money and note to said Baum, subject to my reasonable charges. 1 aver that the statements contained in said paragraph are calculated to mislead and arc not correct statements of the facts therein referred to. The notes and papers were given me on May 9th. The note was due May 19th, and no offer to pay was made until June. The following are the facts as reported by the Master, W. D. Brown, Esq.: The defendant Evans is, and at the time of the filing of the bill, was in the exclusive possession of the ten acres of land described in the first paragraph of the bill, claiming title and the right of possession thereto, and denying the existence of any fact or facts which could give the plaintiff any legal or equitable title to the laud, or to its use and occupation. On, or a short time before, the 9th day of May', 1877, the plaintiff negotiated with defendant Evans for the purchase of the ten aeres of laud described in the first paragraph of the bill. The terms agreed upon were that upon the execution of the deed the plaintiff should pay the sum of five hundred dollars, cash in hand, and the further sum of five hundred dollars to be secured by the judgment note of the plaintiff, payable in six months. Pursuant to this arrangement;, which was in parol, Evans and wife executed a deed of the land, the plaintiff being the grantee therein, and the deed bearing date May 9th, 1877. When the deed was ready for delivery, the plaintiff was not prepared to pay the $500, hand payment, but proposed instead to give his promissory note of $500, payable in ten days. Evans declined to take the note, whereupon it was agreed that the ten day note, the six months’ judgment note, and the deed (all of which bore date May 9th, 1877), should be left with defendant Berry as the representative of the parties, with the agreement that should the plaintiff pay the $500 within the ten days Berry should deliver the deed to plaintiff and the six months’ judgment note to Evans. The plaintiff did not pay the $500 within the ten days, nor yet at the maturity of the ten day note, allowing the days of grace thereon, but on the 23d day of May the plaintiff, informing Evans that he was required to be at Franklin on important business, and would not return to Bradford, the place of business of defendants, until the evening of Friday, May 25th, and obtained the consent of Evans to wait for the payment until that time. Being detained at Franklin longer than he anticipated, Baum arranged with Evans by telegraph to wait one day longer, viz., until the evening of Saturday, May 26th. Plaintiff returned to Bradford from Franklin on the evening of May 26th, but did not see Evans and did not pay, and did not offer to pay, the ten day note. On Monday, May 28th, plaintiff saw Evans, explained the reason of the delay, and why he would like still further time, but proposed to raise the money and pay then if Evans so required, to which Evans said, “Let it rest a few days, Baum, and if I need the money I will come and see 3'uu.” On Saturday, June 2d, plaintiff tendered to Berry the amount of the ten day note with the trifle of accrued interest, and demanded the delivery of the deed. Berry declined to receive the money as payment to Evans, and declined to deliver the deed, for the reason that Evans, sometime between May 28th and June 2d, had so notified him. Thereupon plaintiff left the money with Berry as a formal tender of compliance with the terms of his agreement with Evans, and announced to Berry his purpose to assert his right to the land and his right to the deed. From a consideration of the evidence the Master finds as a fact that the making of the ten day note by plaintiff and the depositing the same with Berry was no part of the consideration or inducement moving Evans to deposit the deed with Berry. At the most, it was an authority to Evans to receive the note instead of the cash. But he never received it and never agreed to receive it, for any purpose. Under all the evidence the Master regards the deposit by Evans of the deed with Berry as a proposition from Evans to the plaintiff, and revocable by Evans at any time before acceptance of and compliance with the terms of the proposition, and the deposit of the two notes by plaintiff as a proposition from plaintiff to Evans, revocable by plaintiff at any time before Evans accepted the same as payment. The Master recommended a decree dismissing the bill. Exceptions were filed to his report, which were overruled by the court, Williams, P. J., and a decree entered dismissing the plaintiff’s bill. The plaintiff thereupon took this appeal, assigning for error said decree.
113 Pa. 67McIntire v. Wing (1886)
133. This was an action of ejectment brought by C. E. Mdntire against J. A. Wing and Ashábel R. Sellew, surviving partner of Sellew & Popple, for a tract of land in Bradford township, McKean county, brought March 31st, 1880.
113 Pa. 70Cessna v. Nimick (1886)
1. A change of the location is not in all cases necessary, to constitute a valid delivery of a chattel as against creditors. Due regard must be had to the character of the property, the nature of the transaction, the position of the parties and the intended use of the property. 2. If the purchase of a chattel be in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title and the vendee assumes such control of the property as to reasonably indicate a change of ownership, the delivery of possession as matter of law can not be declared insufficient.
113 Pa. 83Bradford Oil Co. v. Blair (1886)
1. A. leased Ms farm to B. to explore for and produce oil, at a royalty of one eighth the production. The lease contained the following covenant: “To continue, with due diligence and without delay, to prosecute the business to success or abandonment; and if successful, to prosecute the same without interruption, for the common benefit of the parties.” B. assigned an interest in said lease to C. and 1)., and they, with B., assigned it to 15. Two wells were bored on the farm, both of which were producing wells. E. refused to bore any other wells. In an action of covenant brought by A. against E., for breach of the covenant above quoted, Held, that said covenant was not the personal covenant of B., but a covenant that run with the land, and therefore bound E. 2. It was not error for the Court to instruct the jury, that the damages for the breach of said covenant, would bo found as follows: Ascertain liow much more oil the plaintiff ought to have received than he actually did receive, and the value of it during the- times when it should have been delivered to Mm; from this deduct the cost of producing, what ought to have been produced at the time, under the circumstances, and with the appliances then known; and add to this remainder the interest on it from the time when the oil ought to have been produced to the present time; and this will be the measure of damages sustained by the plaintiff.
113 Pa. 93Harding v. North Carolina Department of Correction (1993)
113 Pa. 94Bush v. Bender (1886)
Error to the Court of Common Pleas of Lancaster county : Of January Term, 1886, No. 42. This was an action of replevin, brought by George D. Bender against Matthias Bush to recover possession of three horses valued at $855. Pleas, non cepit and property. The following are the facts of the case as they appeared on the trial. On February 3d, 1883, Geo. D. Bender, a farmer, living in the vicinity of New Holland, Lancaster county, Pa., was called upon at his place’by Matthias Bush, a dealer in horses, who purchased from him three horses for the sum of $355. Ten dollars was paid that day as earnest. The balance of $345 was to be paid on the following Monday at the Black Horse Hotel in Lancaster, when delivery was to be made. Bender brought the horses, in pursuance of the agreement, to the said hotel. Upon their arrival in the hotel yard Mr. Bender refused to deliver them until he was paid, and ordered them to be tied in the yard, which was done. Bush, Bender and a few others then went into the hotel to pay over and receive the money. When they got into the bar-room Bush, or some one for him, proceeded to count down money in one and two dollar bills to Bender, and when the sum reached about $40, prodnccd two notes of Bender’s to Bansing, one for $150, dated September 18th, 1882, for sixty days, and the other for $152.20, dated November 22d, 1882. Bender refused to receive said notes in payment, and started immediately to the yard for his horses, when they were gone — Bush having got some person or persons to take the horses away in the meantime, which was unknown to Bender. The same day Bender issued a writ of replevin for the horses and Bush entered bond with the sheriff and claimed property. On the trial in Court, Bush, the defendant below, offered the two notes above referred to in evidence and tried to have the damages reduced to the extent of the amount of the same with interest, which was refused. (Fourth assignment of error.) The plaintiff offered to give credit for the $10 earnest money by having it deducted from the amount of the damages to be awarded to him. The defendant presented the following points: The defendant asks the Court to charge the jury as follows : 1. That before the plaintiff, Geo. D. Bender, can rescind the contract made with the defendant, Matthias Bush, for the sale and delivery of the horses in question, he must have first returned or offered to return the ten dollars paid him as a part of the consideration money, and that before the bringing of this suit. Plaintiff not having done so the verdict should, be for the defendant. Answer. We answer this in the negative. (First assignment of error.) 2. If the jury believe there was an actual delivery of these borses to the vendee then they should find for the defendant, unless such delivery was obtained by false representations, contrivances or artifices amounting to actual fraud. Answer. Yes. 3. If the jury believe that the sale and delivery were ob tained by actual fraud; then such sale cannot be rescinded by the plaintiff without having first returned or offered to return the ten dollars paid him as part of the consideration money. The plaintiff having acknowledged that he made no such return or offer to return, then the verdict should be for the defendant. Answer. We refuse to affirm this point. (Second assignment of error.) In the general charge the Court instructed the jury, inter alia, as follows: Now fraud, it is true, is generally a question of fact for the jury, but there are states of facts which the law pronounces to be conclusive evidence of fraud. We do not, however, take the facts from the jury in this case; we do not say that the statement of facts in this case shows a legal fraud, [but we do instruct you, that if Bush bought these three horses for 1355 — said nothing about buying for Ransing, and that he agreed to the price of §355, and requested Bender to deliver the three horses at the Black Horse Hotel and believe that either Bender or his man brought them there and tied the horses in the back yard and then went into the hotel with Bush to settle for them for the price agreed upon, and that there in the hotel Bush refused to pay for the horses, but looked on while William Resh counted down to Bender §40 and then threw down two notes of Bender’s, that he had given to one Ransing long before, threw them down to 'Bender as part of the purchase money, and which Bender refused to accept — if you believe from the evidence that Bush did that or had Resh to do it, and that while this thing was going on in the hotel, that the horses were unloosed from where Bender’s man, Fogel, had tied them, and taken away; the Court does instruct you that if you believe that testimony, believe that payment was offered in the manner stated, we instruct you that it was fraud — actual fraud in fact upon Mr. Bender and the defendant, Bush, cannot consummate the contract of this purchase of the three horses in that manner.] (Fifth assignment of error.) We instruct you that the law is, the seller may keep the property; has a right-to keep the horses on default of payment, unless he has expressly waived the right to keep them. Is there any evidence that he waived the right to keep them ? He had said to Bush, “as soon as you pay for the horses you can put them where you please.” We instruct you that if there was no agreement between Bender and Bush for credit, the sale of course was a cash sale when the horses were delivered. And we further say to you, that if you believe that the horses were unloosed and taken from the yard without Bender’s consent, it was taking them out of his possession and control unlawfully. We instruct you that it was in violation of the contract and fraud of the seller’s right. Bender was not bound to take as money those two promissory notes laid down to him. Was there any agreement for credit in this contract of sale? That has not been urged by any party to this suit. We instruct you that in a sale of this kind, wherever time is fixed, the law implies that the terms are cash on deliveiy. This doctrine of the law meets the evidence of both plaintiff and defendant. The jury found the following verdict: The jury finds a verdict in favor of the plaintiff for $855 less $10 — -namely, $345 with interest from February 5th, 1883, to date, August 26th, 1885, making a total of $397.96. Judgment was entered upon this verdict, whereupon the defendant took this writ assigning for error, inter alia, the rejection of the two notes in evidence, the answer of the Court to his points, and that portion of the general charge included within brackets.
113 Pa. 98Appeal of Ranck (1886)
1. Under the Act of April 8th, 1833, the real estate of an intestate must be kept within the blood of the perquisitor. The search for those who shall inherit must be entirely within the blood without reference to any other relationship. 2. One may not for the purpose of inheriting the estate of an intestate fix his kinship in one channel and draw his inheritable blood from another.
113 Pa. 103McDevitt's Appeal (1886)
464. Appeal of Eliza L. McDevitt from the decree of said court distributing the funds remaining in the hands of the trustee of Eli T. Derrick, to the administrator of the said Eli T. Derrick, The facts of tbe case appear from the report of the Auditor, A. C. Bruner, Esq., appointed to distribute the- funds in- the hands of Wm. B. Given, trustee, under the will of Richard Derrick, deceased, to and among those legally entitled to the same.
113 Pa. 108Peeling v. County of York (1886)
Error to the Court of Common Pleas of York county: Of July Term, 1885, No. 86. This was an action of assumpsit wherein James Peeling was plaintiff and the county of York was defendant. The following case stated was filed and submitted to the Court: Case stated as if found by a special verdict, and to be subject to a writ of error by either party without bail or recognizance. The plaintiff, James Peeling, was duly elected sheriff of York county on the 6th daj of November, A. D. 1877, and was duly qualified and commissioned, and entered upon the duties of his office on the first Monday of January, 1878, and continued in office, and the performance of his duties, during the years 1878, 1879 and 1880, the full term for which he was elected. . One of the official duties of his office was to board the prisoners of the county, for which he was entitled to be paid by the county. That on the 2d day of March, A. D. 1878, in pursuance of the Act of Assembly of April 10th, 1878, Michael Stambaugh, the predecessor of the plaintiff in the office of sheriff of the county, presented his petition to the Court of Quarter Sessions of the Peace of said county, setting forth, among other things: “ That his term of office expired on the first Monday of January, A. D. 1878; that in accordance with his duties he boarded all and every of the prisoners committed to the jail of said county during his said official term in accordance with the requirements of the laws with regard to such duty, that he has not bad any settlement with the officials of said county for the boarding of said prisoners, whose duty it is to allow and pay him for such boarding. That no rate of compensation has been fixed by the proper tribunal to be allowed to your petitioner for boarding said prisoners in said jail,” and prayed the Court to fix the compensation to be paid to your petitioner for the boarding of each prisoner at the jail as aforesaid. Whereupon the said Court made the following order, namely: “And now, to wit, March 2d, A. D. 1878, we fix the allowance prayed for at thirty-five cents per diem.” That on the 8th day of January, A. D. 1879, the Commissioners of York county presented their petition to the said Court of Quarter Sessions of the Peace praying among other things, “ That they are informed and believe that the Court of Quarter Sessions of the Peace of York county shall have the power to increase or decrease, from time to time, the compensation of the sheriff of said county for boarding prisoners in the county jail, and fix the sum at any amount which said Court may think reasonable and just, and that it shall be the duty of your petitioners as county commissioners of said county to pay to the sheriff the amount so fixed by said court. Your petitioners, that they may know the better how to arrange financial matters to meet the necessary and lawful expenditures in conducting the business of their said office, pray your said honors to fix the compensation of the sheriff as aforesaid, at as early a day as possible and convenient for your honors, and would respectfully recommend to your honors, in view of the great reduction in the price of all kinds of produce, &c., &c., that your honors fix the compensation of the present sheriff for boarding prisoners for the year 1878 and 1879 at twenty-five cents per diem for each prisoner.” Whereupon the Court made the following order, namely: “And now, to wit, January twenty-third, A. D. 1879, the court fix the compensation of James Peeling, Esq., sheriff of York county, for boarding prisoners, at thirty-five cents each per diem for the year 1878; and twenty-five cents each per diem for the year 1879, as prayed for.” That upon an account stated by the said plaintiff, he was on the 6th day of January, A. D. 1879, paid by the county defendant, thirty-five cents per diem for each and every prisoner boarded by him from the commencement of his term of office to the above date. That in pursuance of the order of court made the 8th day of January, 1879, accounts giving the number of days of each prisoner boarded, and the price per day as fixed by the Gourt were presented by the plaintiff to the defendant, and he received twenty-five cents per diem for each and every prisoner boarded by him for the year 1879, and in accordance with similar accounts presented by the plaintiff against the county defendant, he received from the county defendant twenty-five cents per diem for each and every prisoner boarded by him for the year ending January 2d, 1881, being the end of his term of office. That said James Peeling gave a receipt in full for his fees for boarding prisoners up to January 6th, 1879, but has not given receipts in full for boarding prisoners during the years 1879 and 1880. The principal question arising is whether or not, where it is the duty of the sheriff to board prisoners in the county jail, the compensation for his services is an emolument within the meaning of the third article and thirteenth section of the constitution of Pennsylvania, and whether the compensation for said boarding was diminished after his election and during his term of office. If the plaintiff was entitled to receive thirty-five cents per diem for boarding each prisoner during the years 1879 and 1880, then there was due the said plaintiff on the first day of January, 1880, the sum of four thousand eight hundred and eighteen dollars and twenty cents ($4,818.20), in addition to the amount he received for boarding prisoners during the year 1879, and the further sum of eight hundred and eighty dollars was due said plaintiff on the 2d day of January, 1881, for boarding prisoners during the year 1880 in addition to the amount received. If the Court should be of opinion that the plaintiff was entitled to receive the sum of thirty-five cents per day for boarding each prisoner during the years 1879 and 1880, being the amount received by him for and during the first year of his term, and subsequently fixed by the Court, then judgment to be entered for the plaintiff for the sum of five thousand nine hundred and eighty-seven dollars and twenty-nine cents, with interest thereon from the first day of January, 1881, with costs. If plaintiff was not legally entitled to receive more than twenty-five cents per day for boarding prisoners during the years 1879 and 1880, then judgment for defendant for costs. The following is the Act of April 10th, 1878, P. L., 666 : That the Court of Quarter Sessions of the Peace of the counties of Mifflin and York shall have the power to increase or decrease, from time to time, the compensations of the sheriffs of said counties, for boarding prisoners in the county jail, and fix the sum at any amount which said Court may think reasonable and just, and it shall be the duty of the county commissioners of said counties to pay to the sheriff, coroner or jailer the amount so fixed by said Court.” The Court, Wickes, -L, entered judgment for tbe defendant on tbe case stated, filing tbe following opinion : It is not pretended that at the time the plaintiff was elected or commissioned sheriff of York county, any compensation had been fixed, which he was to receive for boarding prisoners in the county jail. It is in this particular tbe ease in hand differs essentially from Apple v. Crawford County, 14 W. N. C., 322, cited and relied upon to sustain the plaintiffs claim. In that case the Supreme Court held that a sheriff’s compensation for this service, was an emolument of his office, and that being “ definitely fixed by law at the time of his election,” could not. under Article III., section 13, of the state constitution, be increased or diminished during his term of office. This is the extent to which that case goes, and it does not, in our view, affect the question presented under the entirely different facts of the case at bar. The Act of April 10th, 1873, P. L., 666, gives the Court of Quarter Sessions of this county the power to fix the compensation the sheriff shall receive for boarding prisoners, and furl her provides that the Court shall have power to increase or diminish the same from time to time. Assuming the constitutional provision takes away the right to vary the amount fixed at the time the sheriff assumes his office, the power nevertheless resides in the Court to determine in the first instance what the compensation shall be. This had not been done at the time the plaintiff was elected, or at the time lie entered upon the discharge of his duties. He assumed these duties on the first Monday of January, 1878. Tn March, 1878, his predecessor in office, applied to the Court to fix his compensation for boarding prisoners during his term, in order that he might have a settlement for that service witli the county. And the Court, by order of March 2d, 1878, fixed “the allowance prayed for at thirty-five cents per diem.” It is obvious, that at that time the compensation of the newly elected and commissioned sheriff had not been fixed and was not embraced in that order. On the 8th of January, 1879, the county commissioners applied to the Court to fix the compensation of the plaintiff for boarding prisoners, and as the price of commodities had declined materially in value, prayed that it be fixed at twenty-five cents per diem. On January 28d, 1879, the Court ordered that the sheriff be paid thirty-five cents per diem for 1878, and twenty-five cents per diem for 1879, and under this order the, sheriff presented liis bill and was paid without objection or protest at that time. The qnostion is not, therefore, whether the compensation fixed, by law at the time the sheriff was elected, can after-wards be increased or diminished during his term — for it is manifest that no .compensation had then been fixed at all. But it is rather, whether at the time of determining how much he shall receive for this service, the power fixing, whether legislative or judicial, can in one and the same order fix one amount for the first year and a different amount for the succeeding years. And this question is certainly not decided by Apple v. Crawford County. If the Act of 1867, under which the sheriff claims in that ease, had fixed a certain rate of compensation for the first year of the sheriff’s term, and a different rate for the second, it will scarcely be argued that having taken his office with such a provision in force, he could afterwards recover a larger rate for his term of office. We do not see why the order of this Court made January 23d, 1879, should stand upon a different footing. This method of fixing the sheriff’s compensation for boarding prisoners was known to the plaintiff when he was elected — and it is to be presumed he knew — certainly he could readily have ascertained that no compensation covering either his official term or that of his predecessor had then been determined. He took his office subject to the power of the Court to say what sum of money he should receive for this service, and I can conceive of no legal reason why the order of the Court was not just as binding upon him and the county, as if it had been made prior to his election. We therefore enter judgment for-the defendant in the case stated. The plaintiff thereupon took this writ, assigning for error the entering of judgment for the defendant.
113 Pa. 115Sensenig v. Parry (1886)
1. An injunction bond, conditioned as required by the Act of May 6th, 1844, “ to indemnify for all damages that may be sustained by reason of such injunction,” does not cover remote, consequential, or speculative damages, but only such as result directly from the injunction, and its immediate consequences. 2. Counsel fees paid in'procuring the dissolution of the injunction are not covered by an injunction bond.
113 Pa. 119Appeal of Kelsey (1886)
Appeal from the Court of Common Pleas of Lackawanna county: Inequity: Of January Term, 1886, No. 366. This was an appeal by Helen M. Kelsey, Cyrenus Wise and Ann Wise, his wife, in right of said Ann, Sidney Philip Stevens, Letta Ann Ruland, L. T. Brown and Rozelle, his wife, late Rozelle Stevens, in right of said Rozelle, E. T. Medway and Jennie, his wife, in right of said Jennie, Lillie Stevens,Zelda Stevens, Caleb E. Wright, Samuel Linn, Isaac P. Hand, Henry W. Palmer, C. F. Williams, Elisha Griffin and J. Me-Kiel Stevens, from a decree of said Court, decreeing a partition of certain real estate, without allowing the appellants any share of the value of the permanent improvements made by Joseph Church and Charles J. Church, minor son and heir of Charlotte Church, deceased, the appellees and defendants in the bill in equity, praying for the partition of certain real -estate, filed by the appellants, who were the plaintiffs in the bill. The bill alleged substantially: That one Thomas Griffin, the owner of forty acres of land in Lackawanna county, died on the 18th of March, 1854, leaving a will dated 27th March, 1852, which was admitted to probate the 3d of April, 1854, whereby the said land was devised to his daughter, Letta, subject, however, to a trust that at her death she should convey or devise one half of it to the children of her deceased sister, Charlotte Stevens. That said Letta died on the 27th of March, 1867, without having executed this trust, but leaving Joseph Church and Charlotte Church, his wife, one of the children of said Charlotte Stevens, in possession, who denied the trust. That thereupon a bill in equity, to No. 3, January Term, 1872, in Luzerne county, was filed, under which a decree was obtained, that the said defendants make a deed to plaintiffs for their several interests. That by sundry conveyances this land has become vested in the parties named as plaintiffs in the present bill, vvho hold as tenants in common in fee with defendants. That Charlotte Church died the 16th Juty, 1880, without having made the deed required by the decree aforesaid, leaving a son, Charles J. Church, a minor, whose guardian is his father, Joseph Church. That it will be advantageous to have partition made. The prayer was that partition be decreed by the Court according to the interests set forth in the bill, and for general relief. An answer to the bill was filed by the defendants, setting forth a denial that the devise by Thomas Griffin to his daughter Letta was subject to any trust whatever, and claims that she was absolute owner without any trust or condition whatever, and treated the lauds accordingly, selling and conveying them at her pleasure. A further denial that the proceedings in equity mentioned in the bill vested in complainants the right to have partition as sought in their bill. It also denied that complainants are tenants in common with respondents. It set forth that respondents are seised of the full legal title to the lands mentioned in the bill by virtue of a bona fide purchase for value without notice of any trust of any kind, and that possession was taken by virtue of such purchase as early as 1867, and has been continuously held ever since. It further averred that the bill does not set forth a case within the equity jurisdiction. And the defendants have a right to hold and maintain their legal title regularly at law, a right guaranteed both by the state and national constitutions, W. W. Lathrop was appointed Examiner aud Master, who reported inter alia: While said land has been the subject of litigation between the parties to the present proceeding, Joseph Church has erected valuable improvements thereon. It is contended by the counsel for the plaintiffs that these improvements belong to all the owners of the land, as appurtenant thereto, and that therefore they should be estimated and appraised as part of the property to be divided, and the division made accordingly. To sustain their position tliev cite: Gregg v. Patterson, 9 YV. & S., 198; Crest v. Jack, 3 Watts, 238. Both these cases were ejectments by one tenant in common against his co-tenant in possession ; in which it was held that the latter having put up valuable improvements, could not hold the land until reimbursed a portion of the moneys expended. It seems to be well settled that the tenant making improvements without consent of his co-tenant, cannot compel contribution by his co-tenant. But this doctrine does not neoessarily-settle the question whether in a partition in a court of equity, it is not just and equitable to assign such improvements to the tenant making them, if his co-tenant is not prejudiced thereby. This question does not seem to have been ruled in this State, but the affirmative has been held in the following cases in other states, to wit: Town v. Needham, 3 Paige’s Ch. R., *553; St. Felix v. Rankin, 3 Edw. Ch., 323; Conklin v. Conklin, 3 Sandford’s Ch., 65; Brookfield v. Williams, 2 N. J. Eq., 341; Obert v. Obert, 5 Id., 397 ; Hall v. Piddock, 21 Td., 311; Louvallev. Menard, 6 111. (1 Gilrn.), 39 ; Howey v. Goings, 13 Id., 108 ; Dean v. O’Meara, 47 Id., 120 ; Martin dale v. Alexander, 26 Ind., 104. See also the following cases referred to in Abbott’s U. S. Digest, which seem to be in the same line : Reed v. Reed, 68 Maine, 568; Collet v. Henderson, 80 N. C., 337; Sanders v. Robertson, 57 Ala., 465 ; Reeves v. Reeves, 11 Heisk (Tenn.), 669 ; Annely v. De Saussare, 17 S. G., 389; Sarbach v. New-ell, 28 Kan., 642; Borah v. Archer, 7 Dana (Ky.), 176. It has seemed to the Master and the Commissioners that the improvements made by Joseph Church could be set apart to him and his son, without prejudice to the plaintiffs. The Commissioners have therefore allotted to the defendants the surface on which said improvements stand, without taking the value of such improvements into consideration ; the valuation of the purpart of the defendants being fixed without reference to such improvements. The plaintiffs filed the following exception to the report of the Master: The Master and Commissioners erred in not awarding to plaintiffs four ninths of the improvements put upon the land by Joseph Church, or the value thereof. The Court, Archibald, J., dismissed the exception, filing the following opinion: Both parties have filed exceptions to the report of the Master and Commissioners, which is perhaps evidence that the partition reported by them is a fair one. A careful examination of it also assures me that it has been made upon correct principles. The plaintiffs claim by the single exception which they file, that they should have the advantage of the increased value given to the land by the improvements which have been put on it by Church. The Master and Commissioners have allotted to the defendants as their share those portions upon which these improvements have been made without considering the value of such improvements. I am satisfied that in this they have followed the equitable and true rule. The learned Master fully justifies in his report the course pursued. The subject is also fully considered, and the position taken by the Master sustained in Freeman on Co-tenancy and Partition, §§ 509, 510 and 511. A different case might be presented where one co-tenant has undertaken to improve the whole estate as by erecting a building covering the whole of a city lot. But where the improvements are only such as comport with the reasonable and proper enjoyment of the land by the co-tenant who has made them, it would seem highly inequitable not to allow them to him in making partition. But it is urged that Joseph Church, who made the improvements in question, was a stranger to the title, and again that the trust declares in Mrs. Church in favor of the plaintiffs was one ex maleficio, arising out of her own wrong, and, that so the rule does not apply. Neither of these contentions is sound. Mrs. Church was declared a trustee only as to four ninths — or, as it is better expressed, eight eighteenths — of the land. The remaining live ninths she held undisputed. Hence arises the tenancy in common, which it is the object of these proceedings to sever. The mere fact that the claim and title of the plaintiffs was contested by her, and has been by these defendants, should not prevent the latter from now drawing to their share the improvements in question. Nor can Joseph Church, as respects these improvements, be treated as a stranger to the title. As husband of his wife, Charlotte Church, he had when they were made, a freehold in the land: Bank v. Stauffer, 10 Barr, 399, as well as a curtesy estate, initiate, which has now become consummate by her death. Moreover, aside from his own interest in the land, there is no reason why a husband should not for the benefit of his wife, improve her land, or why even in this light, such improvements should be treated as made by a stranger or volunteer. It follows that the exception of the plaintiffs must be overruled. The Court entered a decree, decreeing partition of said real estate, as recommended by the Master and Commissioners. The plaintiffs thereupon took this appeal, assigning for error the entering of said decree, without allowing them their proportionate share of the permanent improvements erected upon the part allotted to the defendants.
113 Pa. 126Pennsylvania Coal Co. v. Sanderson (1886)
Error to the Court of Common Pleas of Lackawanna county : Of January Term 1885, No. 389. This was an action on the case brought by J. Gardner Sanggderson and Eliza McBriar his wife in right-of said wife against Pennsylvania Coal Company to recover damages susby her from the loss of a stream of water which flowed her grounds and which was rendered entirely useless domestic purposes by the defendants discharging mine water from their mines into it. Plea, not guilty. The facts of the case as they appeared upon the trial before Archbald, J. are sufficiently-set forth in the charge of the court and in the opinion of the Supreme Court. The following is the charge of the court, Archbald, J.: This is an action brought by Eliza McBriar Sanderson against the Pennsylvania Coal Company, to recover damages for the alleged pollution of the waters of Meadow Brook by the defendant. The principles of law involved in this case have been settled by the several decisions of the Supreme Court already made in this case, (5 Norm, 401; 13 Norris, 302; 6 Out., 307.) The facts in the case, or the questions of fact upon which you will have to pass, are not many, although it has been necessary in order to throw light upon them to introduce a great number of witnesses who have been heard by yon, and the discussion of the many facts that have been put in evidence to illustrate these several questions of fact which I shall submit to you. [It appears from the evidence, that in 1868, Mrs. Sanderson purchased .some land in that part of the city whieli is now known as Green Nidge, with a view of erecting a residence there. Through a portion of this land flowed this stream, which is known as Meadow Brook. The fact that this stream flowed through the land was, as it appears, one of the inducements which led this lady to look at that spot, and to make that purchase for the purposes of a residence, in the hope that the waters of the stream might be utilized for domestic purposes, and other useful purposes about the ground. With a view to determine that fact, her husband, Mr. J. Gardner Sanderson, made an examination of the stream, following it up from where it ran through these grounds, all along its course, and noting its condition as he went. He followed it all the way up, found that it was covered over, as he says, more or less, with willows, hazels and other shrubbery that is customarily growing along a stream, and went away up to the Gipsy Grove swamp, and still further beyoml that toward the Tuttle Roaring Brook. He examined especially, as he says, to see if there was anything deleterious corning from any place about there that might vitiate the waters of this stream, lie was satisfied, and this plaintiff, as it appears, was satisfied from that examination, that the water in the stream was pure, and that it would be lit for such uses and purposes as they designed to make of it.] Accordingly the various water-works and apparatus that you have heard described, were put in there; a dam was erected upon the land purchased of Van Fleet, in order to get a sufficient head ; from that a conduit pipe was laid which led to the cistern and hydraulic ram; that, as you know, is a simple mechanical appliance frequently used for the purpose of raising water from a lower to a higher level, and often for just such purposes as it was put to, according to the evidence, in this case. From that ram the water was forced up through pipes leading to a tank in the attic of Mrs. Sanderson’s house, and from there it was distributed through the house, to the boilers, for the purpose of being heated, and to the water-closets, and to a bath-room, and it was also taken to a steam apparatus, which was pub in the house for the purpose of heating tlie house through steam radiation, as it is called. Still further down upon the stream, and within the very grounds of Mrs. Sander-son, a large dam was erected. This served several purposes, ornamental as well as useful. If was stocked with fish; galvanized iron screens were put at the head and at the foot of this dam so as to prevent the fish escaping, and from this was laid another pipe, also leading to an hydraulic ram, which forced the water upon the lawn for the purposes of irrigation there, and for the purpose of supplying a fountain. Also from this dam, as I remember the testimony, there were water-pipes leading to the barn, for the purpose of using the water there to water the horses and cattle; also to the house of Mr. Sanderson’s gardener, for use there. They continued, it seems, in the use of this water, after the erection of the house, for some two or three years, when the character of the water, as they say, became changed, so completely changed as to be unfit for ordinary domestic use ; they had to abandon it for washing and cleaning purposes, for culinary purposes, and in general for all useful purposes in the house; the fish were killed in the pond, and if I remember the evidence in 1874, it was abandoned finally for any purpose connected with the house. Now let us turn our attention to some of the other facts as they appear in the evidence. It seems about the same time, in 1867 or 1868, the Pennsylvania Coal Company,- who owned large tracts of land near the head of this stream (some sixteen hundred acres, it is said) began excavating certain tunnels about the Gipsy Grove swamp with the intention of erecting a breaker there and making developments of the coal property. They first drove in 1867, I think one tunnel; and in 1868 other tunnels, until they finally had four tunnels opened there. These, if you believe the evidence, were opened until they struck the coal, the coal being piled outside the tunnel awaiting the erection of a breaker there. The company also sunk a shaft perpendicularly down into the earth, for the purpose of raising coal from a lower vein, and began building their breaker. That was built, I believe, in about the year 1870. They encountered water in the sinking of this shaft, and they had to raise that water to the surface. After they had reached the vein it was pumped from the mine, as opened to that vein, thrown upon the ground, or into a ditch and conveyed away, until it finally reached the waters of Meadow Brook somewhere in this swamp. Now the several questions of fact upon which you will have to pass are these: The first is, has Mrs. Sanderson suffered any loss? If she has, has that loss been occasioned by the acts of the defendant? If you find that also in her favor, then what is the extent of her loss, or in other words, what are the damages ? Now, gentlemen, there can be very little question on the first fact; from the evidence, if you believe it, it would seem certain that Mrs. Sanderson has suffered loss. The question of how, or from what occasion, is a more difficult question, but if you believe the evidence here, she has not voluntarily abandoned the use of this water. She has been actually prevented, from its character, from using it for any of the purposes for which she had originally designed to use it. Now, then, what was the cause of this loss to her? Upon that question, gentlemen, you will have to consider what was the condition of this stream at the time she put her waterworks up there for t he purpose of using the water from it. If you find that it was in a pure condition, or sufficiently pure for ordinary domestic use, that is one side. On the other hand, if you find that it was then vitiated, even though not observed by Mr. Sander-son, so vitiated or so surrounded by that which would eventually vitiate it, then so far as it was disturbed by these circumstances existing around it, at the time she began there in 1868, for that loss of the water, or the loss of the water occasioned by anything of that kind, there could be uo recovery against this defendant. Now let us look at the circumstances bearing upon and surrounding the question of the purify of this stream. We have decided testimony that this stream, in its original condition, was a pure mountain stream, not very long in its course — a couple of miles or more, if you believe the evidence, arising in this swamp above, from the accumulation of water there, flowing down through land more or less cleared, prevented somewhat from evaporation by shrubbery growing around its banks and along its banks; that there were fish in it, bullheads or catfish, eels, minnows and chubs, also originally trout, a fish, which it is well known, requires a very pure water to live and thrive in. That was its condition, originally. Now was that changed at the time Mrs. Sanderson began her improvements there, and asserted her intention, by the erection of these waterworks, to use that stream? We have the testimony of parties that at about that time they made use of it; the testimony of several witnesses that it was soft in character, that they were able to drink it, except in warm weather when it got somewhat low. And Mrs. Robinson and Richard Robinson, her husband, who were in the employ of Mr. Sanderson, stated that they used it for ordinary domestic purposes ; had no trouble with it; washing and cleaning with it, making tea and coffee, and using it for the ordinary purposes of the kitchen. Mr. Brundage, who lived along the stream, testified to about the same facts, also Mr. Long. Dr. Fordham made use of it for a while until he discovered a spring in his cellar. We have in addition, to that the testimony of J. Gardner Sanderson and George Sanderson, and I think of Mr. Robertson, all bearing upon this question, that in the ordinary condition of the stream it was of pure character, entirely fit for the use they would ordinarily make of such water, or for such uses as Mrs. Sanderson designed to make of it. On the other hand, you have the testimony that this was coal land ; that there were boreholes opened along this stream, from which flowed water, more or less impregnated with the same qualities that would come from water that had passed through a mine. That in this little branch that ran into this stream at Forest Hill there were openings, opened a great many years before this; that there was an out-cropping along on the Dickson property, some little ways above, although there is contradictory testimony as to this; that this was only opened as the result of a freshet; also, that there was water coming from tunnels at Gipsy Grove ; yon have the testimony of parties that water was even then, in 1868,.coming from these into the stream; also the filling of the Jessup railroad — the old abandoned Jessup road — reaching across this swamp, made up largely of culm. It is answered to that, that the deleterious substances existing in this culm would, in the long lapse of years, by the action of the sún and wind and rain, become purified. These are questions for you bearing upon the one side or the other, either that this was in a proper condition, a pure condition, or that it was not. It is not for me to suggest at all which has the weight of evidence ; that is for you; these facts are facts that you, gentlemen, must pass upon and not the court. They .also state that the old burial place, in a portion of the present Dunmore cemetery, was then existing, and that that would have a bearing upon these questions. Now that is the first question for you to determine. The next'question, if you determine that this was a pure stream, fit for the purposes for which it was designed by iMrs. Sanderson in the erection of her apparatus, is, whether the subsequent loss was the result of any acts of the defendant in polluting this stream. [Now, just here, gentlemen, I may as well dispose of one matter which has been disposed of in the Supreme Court in the several decisions which you have heard quoted here and spoken of, and that is, the claim on the part of this defendant that they had the right to cast their water upon the ground ; that they necessarily met with water in mining coal, and that if they are prevented from raising this water to the surface they cannot mine théir coal and must stop their mines ; that the plaintiff well knew that she was in a mining region ; that the tracts of land along the stream were known as coal lands; that the evidence of coal prospectings and coal-croppings existed all along the banks of this stream. Now, if under the law they had such right it would be a perfect answer to the plaintiff’s complaint of injury. But, gentlemen, this question has been settled against the defendant; it has been put at rest by the decision of the Supreme Court in this very case, and the determination of that Court must rule here. It must not only guide me in my announcement of the law to you, but it must guide you also, because it is not for you to say what the law is; you must receive the law from the Court as it is laid down, and if we make any error the Supreme Court will correct that, and it would be a very unsafe rule if tlie jury in the jury-box could say what the law ought to be. The Supreme Court have decided that this plaintiff is entitled to have this stream flow uncoutaminated by the defendant, as it flowed naturally when she became an owner along its banks ; and that, if by the action of tlie defendant in pouring its mine water into the stream the plaintiff has been injured, she is entitled to recover damages from the defendant for such injuries.] Now, there is no question, of course, but what the mine water pours into this stream. Was it deleterious, or did it work the injury to the plaintiff that is complained of? And if it did, to what extent? Now, of course, it is not the character of the water as it comes from that mine that entirely controls. Mrs. Sanderson does not live immediately adjoining the mine, but some mile and a half or two miles below where this water pours into this swamp. Therefore the question is not free from difficulty, or at least is a question of fact that must be determined by you, and not by me, as to what caused tlie injury to her. You have hear<1 the analysis of this water read to you, as made by Mr. Gifford, a chemist from Brooklyn, that analysis being made of the water as it was in 1879. You have also heard the testimony of tlie several witnesses who have observed the stream in 1875 and since this action was begun, and who say that there bad been no change in its conditions. If that be the case, then this analysis furnishes us some guide in determining what was the character of tlie water as it reached Mr. Sander-son’s house. Now, gentlemen, this analysis shows the presence of sulphuric acid, and to what extent, in exact substance, is shown to you by these bottles ; they exhibit the amount of each substance in the water, as found by this chemist, in each gall of water from that stream. He also gives you ail analysi pure water, of the watei' taken from the little stream v runs into this stream at Forest Hill cemetery, and i fish were seen to live, and, by that comparison, yo tliere is considerable difference in the amount of these ingredients ; and, although it may seem small to us as it is measured out, still the question is a question of fact for you under the evidence, whether a sufficiently deleterious amount of sulphuric acid, or other impure substance, which came from this mine, reached Mrs. Sanderson’s, so as to work the injury here complained of. We have the testimony in regard to the character of this water also from the two men who opened the tunnels, Sawyer and Finerty, who do not hesitate much about saying, perhaps, what a good many of you know, that mine water is not such water as is customarily drunk or used for domestic purposes. Mr. Smith says that at times he believes this mine water would be injurious; that he was fearful it might hurt the boilers, and therefore they got water from some other place, and that he knew,the water would be injurious if the creek was low. Now the testimony is, that in a dry time, say in August, that the flow of water in this stream, if you believe the testimony of J. Gardner Sanderson, amounted to something over 882,000 gallons per day of twenty-four hours, while I believe it is in evidence, as this mine water is pumped out, that the flow is some 921,000 per day. That is, that there would be about as much mine water pumped into the stream up there as was the original average flow in this stream at Gardner Sanderson’s dam in a dry time like August. You have also, as bearing upon that question, the peculiar effect of this mine water in this stream, whether it was sufficient to cause the injury complained of; the testimony.of witnesses as to how the water acted about the time that the breaker was fully opened and in force, completed and in full running order; and about that time, and increasing from that time until the abandonment by Mrs. Sanderson of the use of these rvorks, you have the testimony of these several witnesses that the water became gummy Avhen washing in it with soap, and that soap would not assimilate with the Avater; that the fish in the stream died, and other facts of the same character which you will remember. Also, that the action upon the pipes rvas the action of acids, or acidulated Avater as it is called here, Avater impregnated with acids; although there is some evidence that even the purest Avater will corrode, it is for you to determine whether this corrosion, this eating out, was such ■ would occur ordinarily by the ordinary action of water, or ther it was the result of some corrosive substance, like in the Avater, and if it was acid, did it come from the ’imped in accompanying this mine water and in solution On the other hand, you have the testimony of Mr. Sherrerd and of the other witnesses, in regard to the effect of ordinary water which I have just referred to, as well as the theory that at such a distance there would not be sufficient sulphuric acid in solution there to corrode the pipes any more than they would ordinarily be corroded. lie however admits that if this •water were heated, containing this sulphuric acid, that there might be a corrosive action as the result. Now you will determine, gentlemen, which you will believe of these sets of circumstances. Will you believe the actual facts, the facts I mean testified to by these several witnesses, their actual experience with the water, or is the testimony adduced on the other side of more force to your minds, and the theories that they advocate? This is a question for you. If you determine that the action of this mine water is not such as is claimed by the plaintiff here, and that these injuries to her resulted from other causes, then of course she could not recover. If, however, you find that the injuries she complains of were the result of this mine water being pumped into that stream, then she could recover to the extent of the damages which she has shown as the result of the mine water being so turned into the stream. You will notice I confine you to such injuries as are the result of this mine water being- pumped in there. If the injuries which the plaintiff complains of were wholly or in part the result of other deleterious substances which have come into the stream, then to the extent that she is injured by these other causes, of course the defendant could not be called upon to answer. [Bearing upon that question you have tbe testimony that has been brought out on the part of the defendant in relation to the mine water coming in from these different places. These facts that they have adduced have a double bearing, first, in regard to the original purity of this stream when Mrs. Sander-son first came there, and first put up her works, and again in regard to what it affected afterwards. If you find that any part of this injury was occasioned to Mrs. Sanderson from the mine water coming from these other tunnels opened before she began — opened before she put up her works — but the water coming out afterwards, or any injury caused by deleterious substances coming into the stream from running over crop-pings, or from old excavations, prospecting for coal, or any that might come from the cemeteries, or from the privies and barns and barn-yards, or from the slops of houses built up along that stream, any injuries resulting from those causes, the defendant would not be liable for. Now it is a question for you to say bow much, if any, of the injuries complained of was the result of those other causes. If none of them caused the injuries complained of here, if all the injuries were brought about by the pollution of this stream through the mining of the defendant, then Mrs. Sanderson would be entitled to recover. If only part was caused by their mine water, then only part of the damages they would have to respond for. If none was caused by this mine water, if all was caused by those other deleterious substances, or would be caused in the natural order of things, of which you are to judge, as reasonable men, from your known experience, you will find accordingly, either for the whole or part, or none at all of these damages.] Now, gentlemen, the final question is, if you find all these prior questions in favor of the plaintiff, find that she has suffered injury, find that this injury has been brought about by the pollution of the stream from the mine water of the defendant, in whole or in part, then the question comes up, and the final question you are to pass upon, the damages she has sustained. Now there is no doubt, from the evidence, that Mrs. Sander-son made extensive and important improvements for the purpose of using this water, which were expensive to her. If she lias been injured she is entitled to recover to the extent shown to you. [You have heard the testimony of Mr. Sanderson expressing the items of damage which he claims. So far as you are satisfied that they represent the actual damage received by the wrongful act of this defendant, so far you will award in her favor, and express by the amount of your verdict, no more, no less. She is entitled to damages according to the evidence, from what she has shown], and you are to judge and be guided solely by the evidence and the law; the evidence as you have heard it from the witnesses, and the law as you receive it from the Court. The plaintiff and the defendant have both requested me to instruct you in certain matters — theories of the law applicable to this case, as they conceive it. I will read you these points in their order, first giving you the plaintiff’s, then giving ‘my answers to each point. 1. “If the jury find from the evidence that the operations of the defendants by polluting the waters of Meadow Brook caused an injury to the plaintiff prior to the beginning of her action, then she is entitled to recover as damages such an amount as will compensate such injury.” Answer of the Court. This is correctly stated, and we instruct you that the law is as stated in that point. 2. “ That the measure of damages is compensation for the injury resulting from the acts of the defendants; therefore, the verdict, if for the plaintiff, should be for such sum as will compensate the plaintiff for such actual loss and injury suffered by bur previous to the bringing the present action as the jury shall find was caused by the acts of the defendants.” Answer of the Court. This is also correct, and is affirmed. 3. “If the jury believe the evidence produced on the part of the plaintiff, their verdict should be for the plaintiff.” Answer of the Court. We answer that in this way: If from the whole evidence produced here before you, you are satisfied that the theories as explained to you by the plaintiff are the correct ones, if you are convinced that the theory of the plaintiff represents the true facts in the case, then, of course, you will find for the plaintiff. 4. “If: the jury find that plaintiff is entitled to recover, it is their duty to return a verdict for an amount sufficiently to compensate her for the loss suffered by her from,: the defendant’s fouling the waters of Meadow Brook; and in determining this amount they are to be governed by the evidence of the amount of damages she has suffered from this cause ; they have neither discretion nor lawful power to find damages in a less sum than that shown by the evidence. Therefore, the verdict, if for the plaintiff, should be for the full amount of damages which the evidence shows that plaintiff suffered up to the time of bringing this suit, to wit, November 12th, A. r). 1875, with interest on the said amount to the present date.” Answer of the Court. This is substantially as we have already charged you, and we affirm the point. The points presented on the part of the defendant are as follows, and my answers to them I will express after reading each point. 1. “If the jury believe, from the evidence, that it was impossible for the defendants to mine their coal on their lands along this stream without discharging the mine water from their mines, and the mining was done without malice or negligence, and that no foreign substance was introduced into the water by the defendants; and that when the mine water was so discharged it followed the law of gravity, as directed by the natural conformation of the land, and flowed by a natural flow into this stream, and thence through the plaintiff’s property, then, even if thereby the plaintiff was damaged, it is damnum absque injuria, and plaintiff cannot recover.” Answer of the Court. My answer to this is this: The law herein stated is ruled by the several decisions of the Supreme Court made in this case, and in accordance with the decision of that Court this instruction to you must be refused. 2. “That in this case the defendants can only be beld liable for the result of their own acts; and if the jury find from th evidence that this stream had been so far impaired by tlie it troduction of impurities as to be unfit for domestic use before the defendants began to pump from the Gipsy Grove shaft, then the plaintiff cannot recover for loss occasioned by being deprived of the use of the water for domestic purposes.” Answer of the Court. This statement of the law is correct, and we instruct you as requested in this point. 3. “If the jury find that the water of the stream was deteriorated by the joint act of the defendant and other persons to the injury of the plaintiff, then recovery can be had from defendants of only so much as the evidence proves their wrongful act contributed to the injury.” Answer of the Court. I suppose they mean in stating this point, “other persons,” “other causes,” with that correction, I consider the point as correctly stating the law, and so instruct you. , . 4. “If the jury find, from the evidence, that at the time "the plaintiff erected her fixtures, for the purpose of using the water of the stream, the same was unfit for domestic use, and that the fact was reasonably within the plaintiff’s knowledge, she cannot recover for the value of such fixtures.” Answer of the Court. I answer that as follows: This instruction is refused. The point fails to recognize that the water might have some useful purpose other than domestic, as for instance the watering of the grounds, the watering of stock, etc., for which, to some extent at least, as it appears from the evidence, the fixtures of Mrs. Sanderson were put up. 5. “If the jury find, from the evidence, that the plaintiff is still possessed of the land, dams, rams and plumbing works, for the loss of which damage is claimed, and that the same has not been materially impaired in value, she can recover only the loss actually sustained, if any, and not the value of the property.” Answer of the Court. This is correctly stated, and is affirmed. Now, gentlemen, in the consideration of this case, under your oaths, you should dismiss all prejudice; you are neither to find against this defendant because a corporation, nor in favor of the defendant and against the plaintiff, from any of the circumstances which have been urged upon j'ou, and which the Supreme Court have said do not rule this case. Give your verdict, after careful consideration, according to the law as laid down by the Court, and according to the evidence as you have heard it from the mouths of the witnesses. As has been well said to you by counsel, you are not answerable for the consequences of the law. You are simply to find under your aths, according to the evidence and in accordance with the w. You are to endeavor, if you find a lack of harmony, when you retire into your jury room, to reconcile your views one with the other, not to obstinately assert the views that you may have, but to agree the one with the other. This, while an important case, is governed by simple principles of law, and the facts are not so difficult perhaps, judging of them as reasonable men, but that you can readily arrive at a verdict. Verdict for the plaintiffs for $2,872.74, and thereupon judgment; whereupon the defendants took this writ, assigning for error, inter alia, those portions of the charge included within brackets, and the answers of the Court to the plaintiffs’ first, second, third and fourth points, and to the defendant’s points.
113 Pa. 162Taylor v. Delaware & Hudson Canal Co. (1886)
When it is shown that a foot path across a railroad track has been habitually used by the public for many years without objection, it is a question of fact for the jury to determine whether the railroad company has not acquiesced in such use. 2. When a railroad company has for many years, without objection, permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duly of reasonable care toward those using the crossing, and whether such reasonable care has been exercised or not, is ordinarily a question for the jury under all the evidence. 8. A child of tender age, in this ease eight years old, will not be held to be guilty of contributory negligence.
113 Pa. 176Appeal of the City of Scranton School District (1886)
. If an Act regulating the affairs of counties, cities, townships, wards, boroughs, or school districts, either produces or may produce local results, it offends against § 7, Article III. of the Constitution, and is therefore void. 2. The first five sections of the Act of March 18th, 1875 (P. L. 15), entitled a supplement to an Act dividing cities into three classes, etc., which provide, inter alia, for the assessment, levy and collection of all taxes authorized to be collected in said cities, and to which by the proviso of the fifth section no city of the third class shall become subject until they are accepted by ordinance of the councils, approved by the Mayor, are thus limited to the one or more cities that accept them. They are therefore local, and in conflict with § 7, Article III. of the Constitution.
113 Pa. 191City of Scranton v. Silkman (1886)
Error to the Court of Common Pleas of Lackawanna county: Of January Term 1886, No. 370. This was an appeal filed by Catharine Silkman, September 27th, 1883, from the decision of the Board of Appeal and Revision of tlie city of Scranton under the Act of April 4th, 1878, P. L., 133. On February 8tb, 1886, the city of Scranton pleaded to the jurisdiction of the Court by reason of the unconstitutionality of said Act. On February 10th, 1886, the Court, Hand, P. J., filed the following opinion, making a decree reducing the plaintiff’s assessment as prayed for. This is an appeal from the assessment of city taxes for the year 1883 and the decision of the Board of Appeal and Revision. It is taken under the provisions of an Act of Assembly entitled “An Act Authorizing Appeals from Assessments in this Commonwealth to the Court of Common Pleas,” approved 20th April, 1876, P. L., 44, and the supplement thereto approved 24th May, 1878, P. L., 133. To this appeal the city of Scranton filed the plea that this Court lias no jurisdiction over the subject-matter of this case because the Act of 1878, under which the appeal is taken, is unconstitutional and void, for the reason that it is special legislation prohibited by the Constitution. The plaintiff joined issue on the above plea. Upon this issue it was agreed in writing that if the Court concluded to take jurisdiction of the case, the amount of reduction asked for and agreed to by defendant is $1,694, being the amount separately assessed for coal on third-class land, the surface of which was assessed separately against the plaintiff. It was further agreed that for the purpose of considering the constitutionality of the Act of 24th May, 1878, that the Act of March 18th, 1875 (P. L., 15), was accepted by the city of Scranton and all other cities of the Commonwealth except Lancaster, Allegheny and Wilkes-Barre, prior to 1878, and that the last named cities have not accepted the provisions of the Act of May 2Sd, 1874, nor of March, 1875, relating to the classification of cities, &c. The sole question for our consideration is the constitutionality of the Acts of 1876 and 1878. These Acts are attacked upon the ground of their being special legislation within the prohibition of Article III., section 7, as being Acts “ regulating the affairs of counties, cities, townships, wards, boroughs, or school-districts.” It is urged that this question is settled by the decision of Davis v. Clark, 10 ,Qut., 384, and by the decision of Judge Galbraith, in Railway Company’s appeal from decision of Commissioners of Erie County, 16 Pitts. Leg. J. 191. The decision of the present question differs materially from that in Davis v. Clark, which involved an Act of Assembly directly in violation of the letter of the Constitution. That was a case relating to the creation of liens. It was the creation of a new lien, and was, as the Supreme Court says, “special in its terms and local in its effect.” It needed no construction to bring that Act of Assembly within the first clause of section 7, Article III. An examination of the Acts now under consideration will show their relations to the Constitution to be entirely different. The late day of argument of this case, and the short time allowed us in its decision, preclude as full an expression of our views as the importance of the question involves, and we desire. An early disposition of the question is sought because this is the triennial year of assessment. Our examination has led us to the following conclusion : 1. (a) The Act of 1876, in providing that it.should apply to counties having less than 500,000 inhabitants, adopted a classification based on population which has already been sustained by the Supreme Court as a proper classification on the part of the Legislature. (5) It is a classification not only proper, but one which the bistory of legislation for over a century rendered necessary in so far as it applies at present to but one city, and that Philadelphia. While it is based upon population, the necessities of the city of Philadelphia, as shown in the history of legislation, constitute a fact which justifies such a classification. 2. The Act of 1876, and its supplement, is not local nor special legislation within the meaning of the Constitution. Legislation may be denominated general in tlie sense of not being local nor special for various reasons. The clause against special legislation sought to remedy and prevent an evil. The Act of 1876 made that a general law which before was special, A law may be judged as well by the results produced and the effect of the law which means its aim, as by its language. The City of Philadelphia had its legislation allowing appeals to the Common Pleas long before the present Constitution. The Act of 1876 makes this valuable privilege co-extensivo with the state. In fact it gives the privilege to every “ owner of real estate in this Commonwealth,” on real estate in the counties outside of Philadelphia, and of course covers all owners residing in Philadelphia. The Act of 1876 is not an Act regulating the affairs of counties. The matter of taxation, in all its branches, is preeminently a state affair. The power is a sovereign power. The subject-matter of assessment, the levying and collecting of taxes, is wholly within the power of the state. It is the internal administration and management of counties, cities, townships, wards, boroughs, or school districts that is aimed at in “tlie regulation of these affairs,” not the sovereign power and regulation of taxation with all its vital governmental concomitants. 4. The supplement of 1878 to the Act of 1876 is general, in that it applies to all the cities of the third class. It is possible a city may exist that cannot from some cause avail itself at present of its provisions. That does not, however, make a law special or local, which in its terms is general. The propositions above stated we believe are sustained by authority and a careful examination of the Acts in question. The classification which separates, for the time being, the City of Philadelphia, is sustained by the ease of Wheeler v. Philadelphia, 77 Pa. St., 850. In that case the Court says, “A statute which relates to persons or things as a class is a ■general law, while a statute which relates to particular persons, or things of a class, is special.” A classification for the purposes of taxation is pre-eminently proper, and this may bo made on the basis of population, although it includes in one class the whole of the state, except one county, and puts that county in another class. Especially is this proper where that county embraces the largest city in the state, co-extensive with the county, and differing in many respects from all the other cities and counties of the Commonwealth. To what extent this difference reaches may be discovered from the language of Judge Paxson, on page 350 in the case cited. In regard to the character of previous legislation relating to Philadelphia, we shall have something further to say. It is to be remarked that this is not a geographical classification in the Acts of 1876 and 1878, it is one based wholly on population. Undoubtedly a fact which moved the legislature to adopt a maximum of population which excluded the rest of the state and included. Philadelphia, was the previous legislation on this same subject-matter, but that is immaterial, provided she could keep her legislation general within her power of classification. In Philadelphia it would appear that assessors are elected; Purdon, vol. 2, p. 1599, pl. 115. In 1865 a board' of revision was created with the right of appeal to the Court of Common Pleas : Purdon 1603, pi. 135. By the Act of 2d April, 1867, supplemental to Act of 1865 (Purdon 1605, pl. 145-147) full provision is made for the assessment and collection of taxes for the city and county of Philadelphia. Is it possible that the legislature may not, upon the subject of taxation, recognize this state of things in the largest county of the Commonwealth in providing for general legislation which covers the rest of the state? Must the legislature and the rest of the state be handicapped by a technical construction of the Constitution which would create an evil worse than that sought to be remedied? Again we say the subject-matter of this legislation is not the regulation of the affairs of counties. We are not disposed to place too technical a meaning upon the word “affairs.” We are disposed to view the expression “regulating the affairs of counties, townships, &c.,” as that internal government of these subdivisions of the state which should be left to themselves and which, consistent with the safety of the state at large, may be so remitted by general laws without special interference. It is said by some writers that “ affairs ” relates to the business of the county. It is enough for the present comprehensive view that it should include all that may safely be given to the counties by general laws and not retained within the special control of the Legislature — the sovereign power — for the public good. The power of taxation is a sovereign power. No limitation is placed by the Constitution on this power except that taxes shall be uniform upon the same class of subjects within the territorial limits of the authority laying the tax — a limitation which may require, in order that they may be levied and collected under general laws, more or less of special legislation. No express power is given by the Constitution to the legislature upon the subject of taxation— that power is sovereign. Every utterance is an emphatic expression of the most unlimited power on the legislature to tax; they are restricted in their powers of exemption (Article III. section 7, Article IX. section 2) and they may not surrender this power (Article IX. section 3.) The fact that taxation is necessarily associated with the affairs of the county, or is an affair indirectly in which the county is interested, cannot affect the principle involved. The legislature must necessarily keep the power of taxation wholly within its own control. Cooley, in his Constitutional Limitations, page 518, says: “ Whether in any ease a charter of incorporation could be held void on the ground that it conferred unlimited power of taxation, is a question that could not well arise, as a charter is never granted which does not impose some restriction.” He also says : “ It is as true of the political divisions of the state as it is of the state at large, that legislative authority must be shown for every levy of taxes. The power to levy taxes by these divisions comes from the state.” See also Boroughs on Taxation, secs. 2 and 4. It has always been an underlying principle in Pennsylvania, not only that taxes can only be voted by the people’s representatives, but that, so far as possible, the machinery of taxation should be carried on by the people themselves, either by an active participation in the assessment of the same or by a tacit acquiescence. The enforcement of these principles is under the supervision of the state. We believe the two Acts of Assembly in question in this ease are the only instances in which the legislature has given to every owner of real estate in this Commonwealth the full power by appeal to actively or tacitly acquiesce in the assessment of his property. It has been a source of complaint that non-resident taxpayers have not had a full opportunity of appealing, free from local prejudice. This Act now gives to them this right. To belittle this right by calling it an affair of the county when it is the sovereign act of the legislature on a subject wholly within her control, and which in its scope is far reaching for public good, and for the honor of the state at large, we think is too technical. With this power of appeal the taxpayer either tacitly or actively acquiesces in the result of his assessment. The county is the mere instrument or channel through which the sovereignty of the state flows. It is seldom that the state exercises her power to assess taxes directly. It chooses to exercise it upon the county directly, but it is no less the power of the state, and of the state alone, which is felt and exercised even though it be to provide for local government by local taxation. In the instances in which the Court has held that this clause of the Constitution has been violated, we are confident it will be found that it was where the internal business of the county, properly within her own control, was interfered with. As an example we refer to Montgomery v. Commonwealth, 10 Norris, 125. Again, in so far.as the Act of 1878, comprehending it in the Act of 1876, relates to cities of the third class, we apprehend that upon the face of the Act it applies to all cities of the third class. If it does, it is general. Upon this point, as also upon the whole question involved in the Act of 1876, we cite Cooley’s Limitations, star page 129, note foot page 142, and cases there cited. Because some cities have not accepted the Act of 1875, and have no board of appeal and revision, cannot affect the generality of the Act in itself. A fact en pais outside of legislation may or may not be recognized by the legislature. Another principle is involved in this subject matter of general as opposed to special legislation, which we have referred to in the case decided by us at this time, involving the constitutionality of the Act of 1875 relating to cities. It is a question Which affects or may affect all the old cities of the state, but especially the city of Philadelphia, because it is the oldest and largest. It may be conceded that the charter of a municipal corporation is not a contract in the sense that the legislature may not repeal it or any portion of it. But the question is whether under the impulse and restraint that is upon the legislature to provide general legislation, such general legislation, without any clear exjwessed intention to repeal any part of a city charter granted before the new Constitution, can be allowed to have that effect. May not the legislature, in order to prevent catastrophe, apprehended or real, exclude a city like Philadelphia from such legislation, which would be general without such exclusion ? In the present case we have held that she may make that general which before was special', without repealing the special legislation. This involves to some degree the power of classification in order to exercise the power. The principles enunciated in Davis v. Clark do not militate against this view when the subject-matter of the legislation is general. From, the foregoing considerations we have been compelled to differ with the learned Judge who decided the case in Erie County. We believe the legislation in question is not special nor local, because it provides an appeal for “ all owners of real estate in this Commonwealth; ” because its subject-matter, taxation, is of necessity general, and because in its effect it provides a right of appeal to the Common Pleas over the whole Commonwealth, which before existed over only a part thereof. We also remark that this legislation does not affect the “levying and collecting” of taxes, it only provides an appeal from the decision of commissioners or board of revision and appeal. We, therefore, entertain this appeal, and in accordance with the facts agreed upon reduce the assessment $1,694. Counsel for the city except, and a bill is sealed for the der fendant. The city of Scranton thereupon took this writ, assigning for error the overruling of the plea to the jurisdiction of the court and the entering of the decree.
113 Pa. 200Beck v. Church (1886)
An execution cannot be issued by the Court of the county in which the transcript of a judgment is filed under the Act of April 16th, 1840, without a revival there, when none can be issued for want of a revival in the county where the parent judgment remains.
113 Pa. 204Appeal of the Reading Fire Insurance & Trust Co. (1886)
283. Appeal of the Reading Fire Insurance and Trust Company, guardian of Charles B. Riegel, a minor child of Jacob R. Riegel, deceased, from the decree of the Orphans’ Court of Berks county, Schwartz, P. J., dismissing the exceptions filed by the said appellant to the $300 exemption appraisement of Ellen Riegel, who claims to be the widow of said Jacob R. Riegel, deceased, and confirming absolutely said appraisement.
113 Pa. 209Spering v. Laughlin (1886)
Error to the Court of Common Pleas No. 1 of Philadelphia county: Of January Term 1885, No. 218. The original action was in assumpsit by Robert Lauglilin and Charles A. McManus trading as Laughlin and McManus against' Charles Spering. Judgment for $483, was taken for want of an affidavit of defence. Execution was issued and levied on certain goods and merchandise, which made up the stock of a dry goods store at N. W. cor. 11th and Chestnut streets, Philadelphia, as the property of the defendant. Louisa Spering, wife of said defendant, claimed said goods and merchandise as her own property, and demanded a rule for a sheriff’s interpleader, which was granted and made absolute; and the said Louisa, having filed her bond, then became the plaintiff in a feigned issue, formed by the usual narr., plea, and replication to test ber claim of ownership in said goods and merchandise. The facts of the case sufficiently'appear from the opinion oí the Supreme Court. The defendants submitted the following points on the trial: 1. That the plaintiff having made claim to the property set out in the declaration by purchase, during coverture, after the insolvency of the husband, she must show b}^ evidence which does not admit of a reasonable doubt, that she bought it with her own money and paid for it with funds which were not furnished by her husband. No such evidence having been given in the case the plaintiff is not entitled to recover, and the verdict should be for the defendants. 2. Under all the evidence in the case the verdict should be for the defendant. The Court charged the jury as follows: I affirm both points and instruct you, that inasmuch as no authority to buy on credit was conferred on married women by the Act of 3d of April, 1872, the purchase by plaintiff of fourteen thousand dollars worth of goods on credit, her original investment being but one thousand dollars was unauthorized, and the goods were liable to the claims of her husband's creditors; and that the jury must find for the defendants. Verdict for the defendants and judgment thereon, whereupon the plaintiff took this writ assigning for error the answer of the Court to the defendant’s points and the charge to the jury.
113 Pa. 214Philadelphia & Reading Railroad v. Getz & Getz & Co. (1886)
1. The rule for the measure of damages for the taking of laud by a railroad company for tracks, under the right of eminent domain, is the same whether the damages be to the tenant in fee, for life or for years. 2. If the location of a railroad so affects the property as to compel the removal of the business conducted by tenants from year to year to another place, and the machinery used in the business is in consequence depreciated as it stands, the difference between the value of the machinery in connection with the business conducted on the properly and its value to be removed and applied to the same or other use, is a proper element of damage to be considered by the jury. 3. La ascertaining the value of the machinery, as it stood after the injury, evidence as to the expense of removing it, rendered necessary by • the location of the railroad, from the property to a new place of business, is admissible. 4. In a civil case, when no request is made, the mere omission to charge upon a particular poiiat, is not ground of error.
113 Pa. 220Mead v. Conroe (1886)
.. While fraud may be proved like any other fact by evidence tending to establish its existence, yet it is a serious accusation, and is not to be lightly inferred. It is not enough to charge fraud and prove iu support thereof slight circumstances of suspicion only. To be of any avail it must be clearly proved. !. A charge of a corrupt agreement whereby a debtor by means of a sheriff’s sale had his real estate conveyed to another for the purpose of hindering, delaying and defrauding his creditors, must be proved by evidence of a satisfactory character, and if there is no such evidence the jury should be so instructed, and the case withdrawn from their consideration. 3. That a judgment creditor bought the prior judgments, liens against his debtor’s real estate, including a judgment upon which au execution had been issued, and upon which said real estate was advertised by the sheriff, and at said sheriff’s sale purchased the real estate at a price considerably less than its actual value, and permitted his debtor to remain in possession of it, is not ground for the inference' of a fraudulent purpose to hinder, delay and defraud the creditor of Ms debtor. 4. If a purchaser at sheriff’s sale agrees with the defendant in the execution that he will convey him the property upon being reimbursed for all the money he has expended, such an agreement is perfectly lawful, and is no evidence of fraud.
113 Pa. 229Dechert v. Commonwealth ex rel. Smart (1886)
Error to the Court of Common Pleas No. 2, of Philadelphia county: Of January Term 1886, No. 68. On July 18th, 1885, the Commonwealth of Pennsylvania ex relatione J. P. Smart filed a petition praying for a writ of alternative mandamus commanding Robert P. Decliert, City Controller of the City of "Philadelphia, to countersign a warrant drawn by the Chief Engineer and Surveyor of the City of Philadelphia, in his favor. On the same day the writ was allowed. The alternative writ recited that under the authority of an ordinance passed June 24th, 1881, the relator, Smart, had constructed a sewer on Sixty-third street, from the sewer in Market street to the south line of Arch street; that property fronting on said Sixty-third street, of which the Grandma Institute is seised in fee, was not subject to a municipal charge for the construction of a sewer, and the City of Pliiladelphia was without authority at law to assess the cost thereof against the same; that by an ordinance approved June 9th, 1885, the Chief Engineer and Surveyor was “directed to draw,” and the City Controller “authorized to countersign a warrant to the amount of §600, for the construction of a sewer in Sixty-third street in front of the Grandom Institute, on the east side of said street between Market and Arch streets,” etc., that the Chief Engineer had drawn a warrant pursuant to the direction of this ordinance for §600, which the Controller had refused to countersign and had returned to the Chief Engineer; that the relator had no specific remedy at law; and the writ commanded the respondent to countersign the warrant or show cause- why he should not. On September 21st, 1885, the respondent made return to this in which he submitted: I. That having exercised his discretionary power as to the warrant, he was not subject to the direction of the Court. , II. That he had refused to countersign the warrant by reason of the following facts : 1, 2. The ordinance of June 24th, 1881, under which the sewer was contracted for made it a condition, by reference to a former ordinance, that the contractor should accept assessment bills against adjacent properties “as so much cash paid by the city on the said contract, and that he shall collect the same at his own cost without recourse to the city in any event.” 8. That by an agreement dated August 19th, 1881, the relator agreed to construct a sewer as authorized bj*- the ordinance of June 24th, 1881, the consideration of which was to be assessment bills against the adjacent properties, which the relator agreed “ to accept in full for all work done under this contract; ” he further agreed “ to make no claim whatever upon the City of Philadelphia, excepting upon bills against city property, it being distinctly understood and agreed that the City of Philadelphia does not in anywise guarantee any of th,e said bills to be good and collectible...... All of which payments shall be received as so much cash, and be collected without recourse to the city of Philadelphia.” 4. That the relator received in payment for this sewer assessment bills, including two against property of the Grandom Institute, situate as described; that he had'filed liens therefor against this property, and in reply to the defence that the property was rural, etc., had set out that the property was not rural to such a degree as to relieve it from liability for the claims; that he had ordered the cases down for trial and that the suits were remaining pending and unsatisfied and as liens upon the property. 5. That the sewer was such as is customary for the ordinary street drainage; that there was but one house in the square on which it extended; that no public necessity existed for the construction of the sewer for surface or under drainage ; that it was not a branch sewer; that it had been of no general utility in the drainage system of the city, and the adjoining properties could alone derive benefit from it. III. That the respondent could not decide the question of the exemption of the property because it was rural, in the absence of the determination of such an issue in the proper Court; that the relator was estopped from setting up the rural character of the property; that it was not in actual uso or occupation for any purpose which would render it exempt from taxation. IV. That the ordinance did not .authorize the drawing of the warrant, because the relator was not named in it; because the object of the attempted appropriation was “the construction of a sewer in Sixty-third street in front of the Grandom Institute,” etc., and the only sewer constructed by the relator on that street had been finished in or about 1881, and because there was no “Institute” on the ground, which was vacant. V. That the respondent had, therefore, determined that the city was not liable to pay the relator anything on account of this sewer, and that the councils were not authorized to appropriate and the relator was not entitled to receive any money from the city treasurer oil such account, and he had accordingly refused to countersign the warrant. On September 24th, 1885, the relator filed the following demurrer: And the said relator comes and saith that nothing contained in said return is an answer to the mandate of said writ. Wherefore he prays judgment that the said respondent be peremptorily commanded to countersign the warrant recited, in said alternative writ of mandamus. The Court, Hare, P. J. absent, sustained the demurrer and awarded a peremptory mandamus, Mitchell, J. filing the following opinion : The Controller is only an agent- — an agent with very extensive powers, it is true, but still an agent subject at all times to the direct and immediate commands of his principal. The money-raising and money-disbursing powers of the city are in the councils, and unless they plainly exceed their legal authority by directing appropriations to objects not within the general trust for governmental purposes committed to them, the Controller has no jurisdiction to review their action. His duty in. the present case is purely ministerial, and none of the grounds set out in the return for not performing it are valid. Demurrer sustained and peremptory mandamus awarded. The respondent thereupon took this writ, assigning for ' error the judgment of the Court in sustaining the demurrer, and awarding the peremptory mandamus.
113 Pa. 242Friedeborn v. Commonwealth (1886)
Error to the Court of Common' Pleas of Montgomery county: Of January Term 1886, No. 101. Andrew Friedeborn, a citizen of the borough of Norristown, keeps and has kept for many years a small news stand on Mill street, opposite the Philadelphia and Reading Railroad station, He sells in addition to newspapers and periodicals, cakes, candies, spruce beer, cigars and tobacco. On Sunday, the 5th day of October, 1884, he sold to Henry Huldeman two cigars and a plug of tobacco, to two unknown men each a glass of cider, to J. R. Tyson a glass of spruce beer and some candy, and to C. McGlathery two cigars and two glasses of cider. , On the 7th of October, 1884, he was arrested and brought before John J. Derr, a justice of the peace, and by him summarily adjudged guilty of and convicted of violating the Sunday law of 1794, as follows : Be it remembered, that on the 9th day of October, A. d. 1884, Andrew Friedeborn, tobacconist, is convicted before me, one of the justices of the peace in and for Montgomery County, Pennsylvania, of having contrary to the Act of the General Assembly passed April 22d, A. D. 1794, entitled “An Act for the prevention of vice and immorality, etc.,” done and performed six acts of worldly employment or business on the Lord’s day, commonly called Sunday, by making six distinct sales of merchandise, as set forth hereafter, each sale being a distinct offence under said Act, at his place of business in Norristown, said county, on Sunday, October 5th, A. D. 1884, neither of said sales being a work of charity or necessity. And I do adjudge the said Andrew Friedeborn to forfeit for every such offence the sum of $4 with costs, to wit: For selling to Henry Huldeman two cigars oil said Sunday, $4; for selling to same person on said Sunday plug of tobacco (another and distinct transaction), $4; for selling cider on said Sunday to two unknown young men as testified by Henry Huldeman, $4; for selling to J. R. Tyson beer and candy on said Sunday, $4; for selling to C. McGlathery on said Sunday two cigars, $4; for selling to said C. McGlathery on said Sunday two glasses of cider (another and distinct transaction), $4. Total, $24. And in default of immediate payment of the same, or of the production of goods and chattels whereon to levy the same, then the said Andrew Friedeborn to be committed to the Montgomery County prison for the period of six days for every of said offences, being thirty-six days in all, there to be fed, kept, and in all respects treated as in said Act provided. The defendant took a writ of certiorari to the Court of Common Pleas of Montgomery County, and filed, inter alia, the following exceptions: 1. The proceedings before the justice were irregular and illegal in this, that several offences were charged in a single complaint. 2. The proceedings before the justice were irregular and illegal in this, that judgment for a greater sum than the penalty for violating the Sunday law when the conduct of the defendant complained of was confined to one Sunday. 3. The proceedings of the justice were irregular and illegal because judgment was entered for more than one offence committed on the same Sunday. The court (Boyek, P. J.), affirmed the judgment of the justice, whereupon the defendant took this writ, assigning for error the said affirmance of the judgment of the justice of the peace.
113 Pa. 247Appeal of McCulloch (1886)
Appeal from the Orphans’ Court of Mifflin county: Of July Term 1885, No. 68. This was an appeal of Joseph McCulloch, guardian of Ellen Fetzer and Gertie Fetzer, and T. F. McCoy, committee of Wifi liam Fetzer, a declared lunatic, from a decree of the Orphans’ Court of Mifflin county, distributing balance of the personal property in the hands of the administrator cum testamento annexo of George Fetzer, deceased. The following are the facts as found by Rufus C. Elder, Esq., the Auditor appointed by the Court to distribute the fund in the hands of the administrator of George Fetzer, deceased. The whole fund for distribution was $5,749.06. After paying the debts and the expenses of the audit there remained for distribution $5,426.19. The claimants on this fund were the widow of the decedent, Jennie P. Fetzer, a child of the decedent, by ber guardian, and the legatees under the will of the decedent. A request was made before the Auditor for an issue by the guardian of Jennie R. Fetzer. This the Court granted as follows : “ Whether or not Jennie P. Fetzer, born on the 4th day of April, A. D. 1883, on the body of Mary A. Sfcetler, subsequently the wife of said George Fetzer and now his widow, was begotten by the said George Fetzer and is bis child.” Verdict that said Jennie P. Fetzer was a child of George Fetzer and Mary A. Stetler, afterwards Fetzer. Is Jennie P. Fetzer entitled to participate in the distribution of the fund in the hands of the administrator? On June 24th, 1882, Mary A. Stetler went to live with George Fetzer. where she lived until his death. April 4th, 1883, Jennie P., a daughter, was born on the body of Mary A. Stetler. August 7th, 1883, George Fetzer made his will. August 9th, 1883, George Fetzer was married by Rev. J. M. Reimensnyder to Mary A. Stetler. December 14th, 1883, George Fetzer died. Do the two Acts of Assembly, viz.: May 14th, 1857, and April 8th, 1833, place this child in the position claimed by her counsel and give her any share of this estate. Does the Act of 1857 invest this child with the same rights which a child unborn at the time of the execution of its father’s will would possess ? The words of the Act are, “ shall thereby become legitimated and enjoy all the rights and privileges as if they had been born during the wedlock of their parents.” The contention for the child is that the words “as if they had been born, &e.,” give it the rights of a child born on the day of the wedding, after the ceremony, and as it happened in this case two days after the making of the will. This would amount to a legal re-borning (if we may use the word) of the child, and would place her in a more favored position than any legitimate child born before actual execution of the will could attain. The spirit and intention of the Act of 1833, as the Auditor takes it, is to provide for a child born after execution of a will, and of whose existence the father was 'or might be ignorant at the time of making his will. The reason for it was the ignorance of the parent of its existence. There is no possibility of the presence of such reason in this case. The child was born, the father knew and acknowledged her as his child and lived in the same house with the child from April 4tli, 1883, to August 7th, 1883, or her birth until the day he made his will, and indeed to the day of his death', and if lie desired-to provide for her had the full opportunity to do so. “As if born during, &c.,” in the Act are simply descriptive of the rights and privileges which the child would enjoy, and meant the fullest rights of a legitimate child. Legitimation on a certain day does not give the child the rights of a child born on that day. A legitimate child born before the execution of its father's will would not take under the intestate laws by virtue of Act of 1833. This Act provides, “shall make his last will and testament and afterwards shall marry or have a child or children not provided for in such will, and die leaving a widow and child or either a widow or child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow or child or children after-born, shall be deemed and construed to die intestate, &c.” The words and meaning of this Act are perfectly plain. They provide for an after-born child and the Auditor cannot see how they could include an after-legitimated one. In all cases where we have a judicial interpretation of this Act the necessity of the claimant being after-born is distinctly set out. Had this child been born on August 8th, the day after the will was made, and become legitimated by the marriage of her parents on August 9th, then she would have been entitled to benefits of the Act of 1883. This child was entitled to right of inheritance on the marriage of her parents, but there was nothing to inherit, everything being disposed of by will at that time. Jennie P. Fetzer is not an after-born child and is not entitled to anything out of this distribution. Distribution was made to the widow and the legatees of tlie decedent. The following exception, inter alia, was filed to the report of the Auditor. The Auditor erred in not decreeing to Jennie P. Fetzer, who has for her guardian Samuel J. Brisbin, her interest out of the fund as a child of George Fetzer, deceased, under the intestate laws of this Commonwealth, the will of said decedent, dated August 7th, 1883, having been revoked pro tanto as to said Jennie P. Fetzer by the subsequent marriage, on the 9th of August, 1888, of her father, to wit, George Fetzer, to Mary A. Stetler, her mother. This exception was sustained by the Court, Bucher, P. J., filing the following opinion:— Exceptions have been filed to tlie report of the Auditor. Tlie facts are plain and undisputed: 1. George Fetzer was the father of an illegitimate child, Jennie Fetzer, born on the 4th of April, A. D. 1883, on the body of Mary A. Stetler. 2. On August 7tli, 1883, George Fetzer made bis last will and testament, in which no notice was taken of said child, nor provision made for it, but his whole estate was left to a child by a former wife, and to his grandchildren and other legatees. 3. On August 9th, 1883, two days after the making of his will, the said George Fetzer married the said Mary Stetler, the mother of his illegitimate child and cohabited with her. 4. On the 14th day of December, 1883, George Fetzer died. The contention before the Auditor was that under these facts the will opened and let Jennie P. Fetzer into the inheritance the same as if George Fetzer had died intestate. The Auditor ruled against this contention upon the ground that the child was born before the date of the will, and hence the case did not fall within the Acts of May 14th, 1857, and April 8th, 1883. The 15th section of this Act provides when any person shall make his last will and testament, and afterwards shall ■marry, or have a child or children not provided for in such will and die, leaving a widow and a child, or either a widow or child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow, or child or children after born, shall be deemed and construed to die intestate, and such widow, child or children shall be entitled to such purparts, shares and dividends of the estate, real and personal' of the deceased, as if he had actually died without any will. Then the Act of May 14th, 1857, provides, “ In any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock and cohabit, such child or children shall thereby become legitimated and enjoy all the rights and privileges as if they had been born during the wedlock of their parents. There are no decisions under that Act, known to us, which bear upon the question on hand, but the statute gives forth no uncertain sound. It seems to assume (and it is a fair inference) that a man afterwards marrying and cohabiting with a woman who has given birth to a bastard child, was its father. In any event, the fact is not disputed, that the testator was the father of the child and subsequently married the mother, and cohabited with her. The design and theory of this Act was to lift the unfortunate illegitimate out of the dust, and endow him with the quality and dignity of an heir. Until the marriage of liis mother to his natural father he is the son of nobody, and sometimes called filius nullius, sometimes filius populi. He has had a physical birth, but is incapable of heir-ship. His blood is corrupt and he is denied the inheritance, is not the “lawful heir*” and would not, as in the ancientapologue, have been slain, that thieves could steal the inheritance. But the statute gives him a new birth, and he is an heir by the fiat of the law. .There is no doubt that the legal birth is the time when heirship developed upon him. Any other construction would defeat his right as heir, and thus the statute fail of its purpose. The contention is that this Act of 1857 is retroactive, and was intended to make the bastard legitimate from the date of its birth, as it is “to enjoy all the rights and privileges as if it had been born during the wedlock of the parents,” that is, if the parents marry, the illegitimacy of the child is purged, and it is to be considered as if it bad always been legitimate. To give the Act this construction would involve the anomaly that the child was legitimate when its parents were unmarried. We shrink from such an interpretation of the Act. Even if the effect of the marriage of the parents was made retroactive, so as to legitimate from birth, still a court would hold to prevent injustice that the child was only born into the inheritance upon the marriage. Then is the case within the will’s Act? That statute says “when any person shall make his last will and testament, and shall afterwards marry or have a child.....not provided for in such will and die, ..... although such child be born after the death of the father, that is, if he has a child after making his will, even if it should be born after his death, as if to say no matter when born so it is born after making the will and unprovided for, as to such child the will is inoperative. The third proposition in Walker v. Hall, 10 Casey, 483, is stated thus : “If aman make his will and has an after-born child or children, not provided for in such will, and dies leav' ing such after-born child or children, so far as regards such child or children he dies intestate, and his will is revoked pre tanto.” The provision for the case of birth after the decease of the testator was to meet a child in ventre sa mere, so that although in esse when the will was made, still if born after the will falls as to it: MeKnight v. Ileed, 1 Wharton, 213. In Young’s Appeal, 3 Wright, 115, the child was born after making the will, and the day before the testatrix died, and will revoked. In Grosvenor v. Fogg, 31 P. F. S., 401, one child was born a year before the death of the testator, another three years before, and a third six years prior, but all subsequent to the date of the will, and it was held that the will was revoked pro tanto as to them all. The Auditor denied the claim of the child upon the ground that the object of the wills Act was to provide for a child of whose existence the father was ignorant when he made his will, and that the Act could only apply to a child physically born after the date of the will. It must be conceded that all the cases of which we have knowledge, decided under this Act, were cases in which the child was physically born after the date of the will. If the words after-born in tlie Act are to be confined to mean physical birth only, the child would be excluded. On the other hand if the child’s legitimate existence is to date from the marriage of its parents and not from the day of its natural birth, the will must open so as to allow it to share in the inheritance. The object of the Act was to provide for a change of circumstances in the condition of the testator after he had made his will, which were unknown'to him at the time of making it. Indeed, the common law theory of the revocation of wills by the subsequent birth of issue is that the testator’s circumstances have so altered, that new duties have accrued to him subsequent to the date of the will, such as may be presumed to produce a change of intention. When such is the case it will amount to an implied revocation. This is based upon the idea that the testator must be supposed tacitly to have annexed a condition to his dispositions that the will shall stand, provided no such change happens in the relations of his duty as shall call for a different distribution: Coats v. Hughes, 3 B’inney, 514. In the case on hand the testator knew of the physical existence of the claimant at the time he made his will, but at that time he owed it no duty other than that imposed upon him by the Bastardy Act found in the Penal Code. It was a stranger to his'blood, but the marriage having been consummated after the date of the will, new duties developed upon him in relation to it. He was then not onty under a natural and moral obligation to provide for it, but under a legal obligation as well, because it then became his child with the same force and effect as if it had been then'born unto him. We think that the marriage produced such a change in the circumstances of the testator in relation to this child after the date of the will as to revoke it pro tanto. In this way alone can we give effect to the Act of 1857, which legitimates bastard children upon the marriage and cohabitation of their parents, and to the Wills Act of 1833, which declares that the will must open and let in a child which the testator has after the date of the-will. This child acquired a legal birth after the date of the will, and it would be contrary to all equity to debar it from the inheritable qualities which the law conferred upon it by virtue of this birth. We see no error in the apportionment of the costs as made by the Auditor. This exception is overruled. The conclusion to which we have arrived requires a new distribution. April 19th, 1886, the report is re-committed to the Auditor with instructions to report a new distribution in accordance with this opinion. The Auditor made a new distribution in accordance with the opinion of the Court, which was confirmed. The appellants, legatees of the decedent, thereupon took this appeal, assigning for error the confirmation of the Auditor’s report.
113 Pa. 256Luck v. Luck (1886)
Before Mercur, C. J., Gordon, Paxson, Sterrett, Green and Clark, JJ. Trunkev, J., absent. Error to the Court of Common Pleas of Snyder county: Of July Term 1886, No. 43. This was an action of assumpsit by Israel Lincoln Luck against Mary E. Luck, executrix of the last will and testament of Jeremiah Luck, deceased. The plaintiff in his nctrr set out in addition to the common counts: For that, whereas, the said Jeremiah Luck in his lifetime, to wit, on the day of August, A. D. 1884, at Penn township, in the county aforesaid, was indebted to the plaintiff in $2,000, being the value of the crops and products, or aggregate annual value (due the plaintiff), of all that certain tract of land in said township and county which Israel Luck by his last will and testament devised to the said Jeremiah Luck deceased, and the plaintiff, the said Jeremiah Luck deceased, havingkept and appropriated to himself in his lifetime, to wit, before August, 1884, all the crops, products and annual value of said tract of land, to wit, for about twelve years, the one moiety of which crops, etc., was and is due the plaintiff, which the defendant promised to pay to the plaintiff in the above suit. Plea, non-assumpsit, non-assumpsit infra sex annos, payment, setoff with leave. Israel Luck, the father of Jeremiah Luck and the grandfather of Israel Lincoln Luck, who was the son of Jeremiah Luck, died seised, inter alia, of 43 acres of land situate in Penn Township, Snyder County, Pennsylvania, in November, 1873. On the 5th of September, 1870, by his will duly probated he devised to Jeremiah Luck and Israel Lincoln Luck said 43 acres of land, valued by him at $-3,010, as tenants in common. He devised to his daughter Elizabeth a tract of land valued by him at $2,320, and to his daughter Margaret a tract of land valued by him at #2,100. He directed in his will that the said Jeremiah Luck and Israel Lincoln Luck, his son, “shall pay unto mv said wife Elizabeth annually the sum of $60.19, that being the annual interest of one third of $3,010 ; the said Mai’garet Luck shall pay unto my said wife Elizabeth annually the sum of $42, that being the annual interest of one third of $2,100; the said Elizabeth Maurer shall pay unto my said wife Elizabeth annually the sum of $46.39, that being the annual interest of one third of #2,320. All the above annual payments of interest shall be made as long as my said wife shall live; and in order to equalize said property amongst my said children the said Jeremiah Luck and Israel Lincoln Luck, his son, shall pay in manner following, to wit: To my daughter Margaret $75 .annually, commencing payments one year after my decease, without interest, until due, continuing said payments until the sum of $376.67 shall be paid; and my said son, Jeremiah Luck, and Israel Lincoln Luck, his son, shall pay unto my daughter Elizabeth $10 annually, also commencing paying one year after my decease, without interest, until done ; continuing said payments until he shall have paid her the sum of $156.67.” On May lltli, 1872, he made a codicil to his will, which was duly probated, which directed, inter alia, that “ the bequest made in my said last will to my grandson, Israel Lincoln Luck, shall be, and the same is hereby, altered, changed and amended, so that in case the said Israel Lincoln Luck should die without issue or heirs of Ids body, then, and in that case, all that was bequeathed to said Israel Lincoln Luck in said will shall vest and descend to all the children tlieu living of my daughter Elizabeth Maurer.” Israel Lincoln Luck was born in February, 1864; be is unmarried, and never had issue or heirs. On April 1st, 1874, Jeremiah Luck took possession of the land and continued to farm the same, receiving all the crops until August, 1884, when ho died. He paid the legacies as directed by the will. From 1874 to 1880, Israel .Lincoln Luck lived with his father on this land, but lie had no control over it, nor did be assist in farming it. Since 1880 be has been living with friends and strangers, and earning his own living. His mother died when he was five or six years old, Mary E. Luck, the widow of Jeremiah Luck, being liis step-mother. Jeremiah Luck made his last will and testament, in which lie gave his entire estate to Mary E. Lack and his son, Ossie D. Luck, the only child by bis second wife. He appointed Mary E. Luck sole executrix of bis will. Jeremiah Luck having received all the crops and proceeds of this land from 1874 to 1884, both years included, this suit was brought by Israel Lincoln Luck to recover Lis share of the same. The defendant was permitted to set off the plaintiff’s share of all taxes paid by Jeremiah Luck, which it was shown he paid, and also to set off the plaintiff’s share of some new fence which Jeremiah Luck built. On the trial, before Bucher, P. J., defendant’s counsel proposed to prove that Jeremiah Luck, in a proper manner, limed this land to keep it in proper condition, from the time these parties moved on this property, April, 1874, down to the time of his death, and that it was necessary to put the lime on that was put on by him. This for the purpose of showing a set-off to the plaintiff’s claim. Plaintiff’s counsel objects to this evidence. First: Unless it be shown that the lime was put upon this land within six years prior to the bringing of this action. Second: That as between tenants in common of arable land no recovery can be had for improvements put upon the common property of the tenants in common. Also objects that this evidence is incompetent unless it is first shown that the lime, which is proposed to be proved was put on here, was necessary. By the Court: We sustain the objection on the authority of Beatty v. Bordwell, 10 Norris, 440, and reject the evidence. To which the defendant excepts and bill sealed. (Twelfth assignment of error.) The defendant presented, inter alia, the following points : That unless the jury believe from the evidence in the cause that there was an express contract or agreement on the part of Jeremiah Luck to pay Israel Lincoln Luck rent for the use and oceupancy of the land, or to give him a part or portion of the grain and other produce raised on the land, then the plaintiff is not entitled to recover. Answer. Refused. (First assignment of error.) That even if Israel Lincoln Luck left said land and permitted Jeremiah Luck to use and occupy this land, still he is not entitled to recover in this action unless he has satisfied the jury from the evidence that Jeremiah Luck made an express contract with the plaintiff to pay him rent for the use and occupancy thereof. Answer. Refused. (Second assignment of error.) That Jeremiah Luck and Israel Lincoln Luck are, if anything, tenants in common of this land, and that before the plaintiff can recover in this suit he must show that Jeremiah Luck expressly agreed and contracted with him to pay him rent, or give him a part of the grain and other produce raised thereon, for the use and occupancy of the land. Answer. Refused. (Third assignment of error.) Tn the general charge the Court instructed the jury, inter alia, as follows : The plaintiff, who was a co-tenant with Jeremiah Luck, deceased, sues the defendant, his executrix, in assumpsit in order to recover the value of the crops raised upon the land held in common, which his co-tenant received in excess of his share. The declaration is not for use and occupation. If it had been, the contention of the defendant that the action would not lie upon mere proof of the occupation, although the possession was permissive on the part of the plaintiff, would be sound. In such case the action would not lie in the absence of a proof of an express promise on the part of Jeremiah Luck, the co-tenant, to pay. Such an express promise has -not been shown — but such is not the case before us. The plaintiff is seeking to recover the crops which grew upon the lands held in common, which his co-tenant in his lifetime received in excess of his share. The Supreme Court decided in Gillis v. McKenney, 6 W. & S., 78, that assumpsit may be maintained by one tenant in common against his co-tenant to recover a share of the rent upon proof that the whole was received by the defendant. It is true in this case there was an express promise on the part of the defendant to pay, but the Court says that the plaintiff was entitled to maintain assumpsit upon proof that the defendant bad taken all the proceeds of the land and sold it. Tin's was followed by Borell’s Administrator v. Bored, 9 Casey, 492, in which it was distinctly held that one tenant in common could maintain assumpsit against his co-tenant to recover a share of the profits, upon proof that the whole was received by the defendant. In such case the law raises an implied promise to pay over the plaintiff’s share. It is insisted that these cases have been overthrown bv the decisions in Kline v. Jacobs and wife, 18 P. F. S., 57, andKoss v. Gould, 15 W. N. C., 188 ; but we do not think so. Xu the former the action was for use and occupation, and the Court held that the tenant in common could not recover against his fellow for the use and occupation of the common property without proof of an express contract to pay rent. An action for use and occupation depends not upon privity of estate, but upon privity of contract. The Court does not notice the cases of Borell’s Administrator v. Borell, and Gillis v.McKenney, just referred to, and we do not feel at liberty to regard them as overruled. We best discharge our duty by leaving the responsibility of doing that to the Supreme Court. We are mindful that Mr. Justice Thayer, in Noss v. Gould, holds that they are overruled by Kline v. Jacobs, but he does not say tliat the Supreme Court have plainly declared that sue!) was their intentions. Whilst we concede his great ability as a Judge, yet we decline to follow,his ruling on account of the serious consequence that would ensue if his views of the law be correct. He there holds that in a ease like the one in hand where one co-tenant passively permits his fellow to have the exclusive possession of the lands held in common and to receive all the rents, issues and profits, that he cannot recover in the absence of an express promise to pajq neither by action of'assumpsit, nor account render under the statute of 4 Anne, c. 16, nor by bill in equity, not in any other way whatsoever. It is a maxim of the law that it affords a remedy for evei’y wrong. We therefore prefer the doctrine enunciated by the Supreme Court in the cases which are claimed to be overthrown, and hold that they are still the law and that assumpsit will lie. This remedy is far preferable to the now almost obsolete action of account render, and superior to any that can be invoked, unless it be by bill in equity. In assumpsit a jury can settle all the equities between the parties and do ample and complete justice. We therefore charge you that this action can be maintained, and that the plaintiff cannot be defeated upon the ground that he has misconceived his action, if you find from the evidence that the plaintiff was the co-tenant with Jeremiah Luck of the land upon which the crops in dispute grew, and that he received more than his share. In such case the plaintiff can recover whatever the defendant received over and beyond his share. It is undeniable that the will of Jeremiah Luck, deceased, given in evidence by the plaintiff, constitutes him a co-tenant with Jeremiah Luck, of the lands therein devised to them as tenants in common. The contention of the plaintiff is that Jeremiah Luck entered upon these lands devised to them as tenants in common in April 1874, and farmed the same and raised crops thereon until his death, in August, 1884, and that during this entire period of about ten years he appropriated to his own use all the crops, and that the plaintiff received none of them. How this is will be for you to find from the evidence. Verdict for the plaintiff for $1058,85 and judgment thereon, whereupon the defendant took this writ assigning for error inter alia, the rejection of the evidence and the refusal of his points as above set out.
113 Pa. 264Fenn v. Early (1886)
1. The provision of the Act of April 1st, 1874 (P. L., 50), limiting the time within which a writ of error may be sued out, does not apply to a feme covert. 2. In an action in a'ssumpsit to recover commissions on the sale of the real estate of the wife, brought against the husband and wife to charge her separate estate, it is not sufficient to allege that it was sold for her use, and at her instance and request. In some suitable language the necessity therefor must also be averred in the statement or narr. 3. To sustain a common law action against a husband and wife, with a view of charging tire separate estate of the wife, facts must be averred in the narr, and proved on the trial, sufficient to bring the case within the Act of April 11th, 1848. It is not sufficient that a cause of action be proved, it muát also be'set forth in the narr. 4. Commission on the sale of a house is not a proper subject of a book account, to be proved by the production of the book as one of original entry. 5. -A statement of items, not proper subjects of book account, copied from books averred to be books of original entry and filed in the case, is not within the rule requiring an affidavit of defence when “ a copy of book entries ” is filed.
113 Pa. 269Boyd v. Insurance Patrol of Philadelphia (1886)
L. Whether the Fire Insurance Patrol of Philadelphia, incorporated by a special Act of Assembly in 1871, P. L., 59 is a public agent auxiliary to the city government of Philadelphia or to its fire department or a public charitable institution cannot be determined from its charter alone. It was error therefore in ail action against it to recover damages for the negligence of its employees to enter a compulsory nonsuit upon the ground that it is a chant-able institution upon no other evidence than that of its charter. 2. Whether a corporation acting in the capacity of a public agent solely for the public benefit, though not strictly filling the character of an officer or agent of the government, or a public charitable institution is exempt from the rule of respondeat superior, considered but not determined. 3. A. and B., employees of the fire patrol, went with a horse apd wagon to remove some tarpaulins, used by the company at a fire, from the fourth story of a building. A. was the driver and remained with his horse on the street while B. went into the building and threw the tarpaulins out of the window. A. warned pedestrians passing on the pavement of the danger. One of the tarpaulins struck a pedestrian as he was passing and so injured him that he died, In an action to recover damages for this negligence brought by his wife and child against A. and B. the court rightly granted a compulsory nonsuit as to A.
113 Pa. 281In re Airy Street (1886)
Certiorari to the Court of Quarter Sessions of the Peace of Montgomery Gounty: Of January Term 1886, No. 291. Tbe borough of .Royersford in Montgomery County was incorporated under the general borough Act of April 3d, 1851. On petition of citizens of said borough the Court of Quarter Sessions, by and with the consent of the town council of the said borough, appointed a jury under the Act of May 9th, 1871, to view, lay out a street, and assess the damages for the same. The jury laid out the street and assessed the damages, and made report to the Court. The commissioners of Montgomery County filed the following exceptions, inter alia, to said report: 2. The Court had no jurisdiction in the proceedings, and all acts therein are. illegal and void. 3. The damages should have been assessed against the borough. 4. The Act of Assembly authorizing the assessment of damages against the county is unconstitutional. The following is the 1st section of said Act of May 9th, 1871: That from and after the passage of this Act the Court of Quarter Sessions of Montgomery County, by and with the consent of the town councils, shall have jurisdiction to inquire of, lay out, open, widen, vacate, or change any public street, road or alley within the limits of any incorporated borough in said county, whether said streets and alleys have heretofore been laid out by commissioners appointed by Act of the legislature or otherwise, in the same manner as is provided by law for the laying out, opening, widening, vacating, or changing of other public roads within said county; and damages to the owners of land injured thereby shall be assessed as provided under the general road laws of this Commonwealth. The Court, Boyer, P. J., dismissed the exceptions and confirmed the report, filing the following opinion : It is contended on the part.of the exceptants that the Act of May 9th, 1871 (P. L., 639), under which such jurisdiction has been exercised during fifteen years past, is unconstitutional, because not properly entitled. It is entitled, “An Act relating to streets in the several boroughs of Montgomery County,” and enacts that “ the Court of Quarter Sessions of Montgomery County, by and with the consent of the town councils, shall have jurisdiction to inquire of, lay out, widen, vacate or change any public street, road or alley within the limits of any incorporated borough in said county.” This jurisdiction has been exercised ever since the passage of the Act; and it is only since the decision of the Supreme Court in the matter of the road in the borough of Phoenixville, reported in the Legal Intelligencer of July 31st, 1885, p. 313, that the constitutionality of the Act of 1871 has been questioned. But a moment’s comparison will serve to distinguish the material difference in the titles of the two Acts. The Chester County Act being entitled, “ An Act relating to the boroughs of the county of Chester,” gave no intimation that it related to the streets of boroughs; but was misleading, the natural inference from its title being that it related solely to the organization and government of boroughs; whereas the title of the Act here in question plainly expresses its true subject, namely, “ relating to streets in the several boroughs of Montgomery County.” Does not this fulfill the requirements of the 3d section of the 3d article of the Constitution ? Passing by the case of Blood el al. v. Mercelliott, 8 P. F. S., 391, which, although never overruled, has been pronounced the “ extreme limit of constitutional relaxation,” we have the case of Com. v. Green, 8 Id., 226, where Justice Sharswooe, in delivering the opinion of the Supreme Court (p. 234), says : “ The intention of the constitutional amendment was to require that the real purpose of a bill should not be disguised or covered by the general words ‘ and for other purposes,’ which was formerly so common, but which should be fairly stated; and it must be a clear case to justify a Court in pronouncing an Act, or any part of an Act, void on this ground.” The same judge, in speaking for tire Supreme Court in Yeager v. Weaver, 14 P. F. S., 428, says : “ The people did not mean by the amendment of 1864 to require that the title should be a full index to all the contents of the Jaw; but by declaring that each bill should be confined to one subject, which shall be clearly expressed in its title, to prohibit the vicious practice of rolling together what were termed omnibus bills, including sometimes more than a hundred sections on entirely different subjects, with the title of the enactment of the 1st section, ‘ and for other purposes.’ ” Justice Agnew, in delivering the opinion of the Supreme Court, in Dorsey’s Appeal, 22 P. F. S., 195, says : “ Mere generality of meaning in the title ought not to avoid a law. For instance, ‘ An Act relating to executions ’ is quite general as an expression of the subject of the Act; yet no one could doubt the power of the legislature under this title to provide for the various kinds of executions generally comprised within the term ‘ execution.’.....So ‘ An Act re- lating to actions might include covenant, case, debt, etc. But a restriction in a title which tends to mislead stands on a different footing.’ ” The Supreme Court, in a per Curiam opinion in Allegheny County (Horne’s Appeal, 27 P. F. S., 80), declared that “ it will not do, therefore, to impale the legislation of the State upon sharp points of criticism which must often bring legislation to naught; but we must give each title as it comes before us a reasonable interpretation, ut res mac/is valeat guam pereat. If the title fairly gives notice of the subject of the Act so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary.” This language is repeated in Mauch Chunk v. McGee, 31 P. E. S., 438 ; see also Esling’s Appeal, 8 Norris, 205. From the foregoing decisions it is an unavoidable inference that in the Phcenixville road case, before referred to, the Supreme Court would not. have pronounced the Act there in question unconstitutional if, in the title, “ streets ” in boroughs had been mentioned as the subject of the legislation ; for then the necessary notice to lead to inquiry into the body of the bill would have been given, provision for the assessment of damages being not only germane to the exercise of jurisdiction over streets, but a necessary incident. Therefore, in the matter of Church Street, 4 P. F. S., 353, where the title of the Act was, “ A supplement to an Act to open and straighten ” certain streets in Philadelphia, and the Act provided for the assessment of damages, as to which there was nothing in the original Act, it was held to be constitutional. Applying the principles of construction established in the series of cases just recited, it seems clearly apparent that the Act of 1871 under discussion comes fairly within the limits of the constitutional requirements. Its provisions all relate to streets in the several boroughs of Montgomery County, which is the subject expressed in its title; and its title, though general, contains nothing calculated to mislead, but fairly gives notice of its subject sufficient to lead to inquiry. It confers original jurisdiction upon the Court of Quarter Sessions over streets or roads within the limits of any incorporated borough in Montgomery County, but repeals no existing laws, leaving to the boroughs incorporated under the general borough laws their power to ordain streets and allejs when needed for municipal purposes, as before, and to have the damages assessed as provided in such cases. The jurisdiction it confers tends to equalize the law. The taxable inhabitants of the boroughs are taxed for damages resulting from the laying out of public roads in the townships, and it seems but fair that there should be reciprocation in that respect, and the laying out of streets, useless to the general public in boroughs through the action of a jury selected from the body of the county outside of the boroughs themselves, is not likely to be greatly abused. And now, January 4th, 1886, the exceptions are dismissed and report of the viewers confirmed. The county commissioners of Montgomery took this writ, assigning for error the dismissal of their exceptions‘and the confirmation of the report of viewers.
113 Pa. 288Steel v. Goodwin (1886)
1. When a foreign attachment is issued in any county in this Commonwealth where the property of a non-resident is situated, after the execution of an assignment for the benefit of creditors, but prior to the recording thereof in the county where the property is found, the attachment has priority over the assignment. 2. If it appear in a proceeding in foreign attachment on the face of the record that it is void or grossly irregular, or where it is clearly shown that a valid cause of action in this form does not exist, the Court may, on motion of the defendant or of the garnishees in his behalf, quash the writ; but the power of quashing writs is limited to proceedings that are irregular, defective, or improper. 3. Whether the debt for which a foreign attachment was issued was due or not cannot be determined by the Court as a matter of law; it is a question of fact which should be submitted to a jury.
113 Pa. 292Fernau v. Butcher (1886)
Error to the Court of Common Pleas of Luzerne county: Of January Term 1886, No. 286. This was an action in debt brought by Henry B. Butcher, Howard Butcher, Henry P. Darling and William S. Harvey co-partners, trading as Washington Butcher’s Sons against John Fernau, Charles Thomas, F. A. Celiax, Peter Dersehuck and Christopher Speeht on a bond given by John Fernau and Charles Thomas with the other defendants as sureties under aud pursuant to the third section of the Act of March 17tli, 1869 relating to attachments. The case by agreement of parties was referred to L. II.. Bennett, Esq., as Referee under the Act of April 6th, 1869 and its supplement. ' The Referee reported the following facts: 1. For some time prior to the 10th of March, 1881, John Fernau and Charles Thomas, two of the defendants in this ease, were engaged as partners under the firm name of “ Fernau & Thomas ” in the mercantile business in the borough of Hazleton : On the 7th of July, 1880, one F. A. Celiax recovered a judgment in the Court of Common Pleas of Luzerne county against the said John Fernau for $1100, and on the 16tli of September, 1880, he also, in the same court, obtained judgment against the said Charles Thomas for the sum of $137.34. Cn the 9th and 25th days of February, 1881, respectively, Mr. Celiax issued writs otji.fa. on the above judgments against John Fernau aud Charles Thomas, respectively, and thereupon the sheriff, pursuant to these writs, levied upon the respective interests of John Fernau and Charles Thomas in the firm goods of Fernau & Thomas, and on the 9th of March, 1881, at 3 v. M., sold the interest of John Fernau for $165 to Mr. Celiax, and the interest of Charles Thomas for $160 to Cyrus Thomas. And on the 22d of March, 1881, the sheriff settled these writs with the attorney of Mr. Celiax by paying over the amount of the sales less sheriff’s fees. 2. Between the 7tli and 23d of February, 1881, the firm of Fernau & Thomas bought various bills of merchandise from the plaintiffs in this suit, who were doing business in the city of Philadelphia. The balance due on these bills on March 1st, 1881, was $506.74. On the latter date said plaintiffs caused an affidavit to be filed, setting forth said indebtedness and that a portion of the same, to wit: $279.73 had been fraudulently contracted, and thereupon on filing and approval of bond for that purpose, an attachment was issued out of this court, under the Act 17th March, 1869. for the said sum of $506.74, at the suit of the present plaintiffs against John Fernau and Charles Thomas, trading as Fernau & Thomas. On this writ of attachment the sheriff made return that he “attached, 2d March, 1881, at 3 o’clock p. M., the interest of John Fernau and Charles Thomas, in grocery store, general assortment of goods at store of Fernau & Thomas,” &c., &c., (describing them) and that said goods had already been levied upon on the writs already mentioned-, in favor of Mr. Celiax. Also that he had attached “ all book accounts, bank accounts or moneys of any and all description that may be, and same day summoned the defendants and gave to each schedule of property attached.” 3. On the 10th of March, 1881, Fernau and Thomas filed their affidavit in the attachment case, stated in the 2d finding, supra. denying that they fraudulently contracted any part of said debt, and on motion of their attorney, the Court granted a rule to show cause why the attachment should not be dissolved. Depositions were taken in support of the attachment and against the rule to dissolve. On these depositions and after argument the Court, on the 25tb of April, 1881, by opinion filed, stated that they had examined the conflicting depositions carefully and were unable to conclude that the goods were obtained by representations which would raise the presumption of fraud. They therefore dissolved the attachment. 4. On the 10th of March, 1881, Mr. Kisner, the attorney for the said F. A. Celiax, drew up a bond in the sum of $1,100, reciting that “whereas Henry Butcher” (and the other plaintiffs named in the said attachment as also in this suit) “have instituted in the Court of Common Pleas of Luzerne county, an action of attachment under the Act of 1869, against John Fernau and Charles Thomas, trading as Fernau & Thomas, to No. 176 April term, 1881, for the sum of $506.74. And whereas William O’Malley, sheriff of said count}^, has attached and taken into his possession, by virtue and in pursuant of said writ of attachment, the following personal property,” (naming it as in the return to the attachment) and conditioned as follows: “ Now the condition of this obligation is such that if the said plaintiffs in said attachment recover judgment, in the same, and if the said Fernau & Thomas, defendants in said attachment, will pay the debt and costs at the expiration of the stay of execution, on sums of like amount given to freeholders, or surrender up the said property in as good condition as when attached, to any officer having an execution against said party defendants on any judgment rendered in said attachment in favor of the said plaintiffs, then and in such event the said obligation to be void, otherwise to be in full force and virtue.” This bond was duly executed by Fernán & Thomas, and F. A. Celiax, Peter Dershuck and Christopher Specht, the several defendants in the present action, and by F. A. Celiax delivered to the sheriff on the day of its date and by the latter deposited in the prothonotary’s office on the following 11th day of March, 1881. It was not, however, marked “ filed ” till 10th June, 1881. 5. On the 16th of May, 1881, attorneys for the attachment plaintiffs, (a statement and copy having been previously duly filed), caused judgment to be entered in that suit for want of affidavit of defence, and on the 10th of June, 1881, they issued a fi. fa. upon this judgment, returnable to 1st of September, which writ the sheriff, on August 26th, 1881, returned,— “I hereby certify and return that the within named defendants have no goods or chattels, lands or tenements whereon to levy to make the moneys as within I am commanded.” The amount of debt, interest and costs of that judgment at this time is six hundred and sixty-five and twenty-three hundredths dollars. 6» The bond set forth in the 4th finding, supra, was known to be in existence both by attorney for Fernau and Thomas, and attorneys for the plaintiffs at the time the latter took depositions in support of the attachment, as also when the rule was argued, and finally on April 25th, 1881, when the attachment was ordered to be dissolved by tlie Court as stated in the third finding, supra, but no allusion was made to said bond, either iu the depositions, the arguments, or the opinion of the Court, by whom its existence was not then known. 7. On the 13th of April, 1882, the present action of debt on the bond stated in the fourth finding, supra, was brought. This was more than a year after the first day of the term to which the attachment stated in the second finding, supra, was made returnable. The Referee directed judgment to be entered in favor of the plaintiffs for $665.23. The defendants excepted to the finding of the Referee in favor ok the plaintiffs. The Court, Rice, P. J., overruled the exception, confirmed the report and directed judgment to be entered for the plaintiffs for $665.23, which was accordingly-done. The defendants thereupon took this writ, assigning for error the action of the Court in overruling these exceptions, and in entering said judgment for the plaintiff.
113 Pa. 300Neslie v. Second & Third Streets Passenger Railway Co. (1886)
1. A., in alighting from a street car with her child on her left arm, slipped and fell, from which she alleged she sustained injuries. There was evidence that when there was ample room for all the passengers to ride in the car, a passenger was permitted to stand on the platform in such a position that she could not get hold of the dasher of the car to protect herself from falling, and also that there was ice on the step of the car upon which she slipped, formed during the storm of the previous day; that she knew of the ice on the step, and that had she carried her child on her right arm she could have taken hold of the handle of the car with her left hand. Reid, that under all the facts of the case it was error for the Court to grant a compulsory nonsuit. 2. If there be no doubt as to the existence of the facts of a ease, yet if there be substantial doubt as to the reasonable and natural inferences to be drawn from those facts, they should be submitted to the jury. 8. What is or is not negligence in a particular ease, is generally a question for the jury.
113 Pa. 305Diefenderfer v. Eshleman (1886)
1. Dower at common law and also under the intestate laws of this commonwealth is an estate in the land and not a mere lien upon it. 2. The interest or estate of the widow in the real estate of which her husband died seised is not divested by a sale in proceedings in partition in the order for which the Orphans’ Court did not direct that her share should remain a charge' on the land, for the court has no power to decree otherwise unless the consent, of the widow be procured in suohmauner as to pass her estate in the land. The acceptance of service by the widow on a rule to show cause why the real estate should not be sold does not give such consent. 3. In an action in assumpsit by a widow to recover interest duo her on her dower on the land of her lato husband, the assignee is in no better position than the original purchaser. He is bound to take notice of the decree of partition which is in the line of her title.
113 Pa. 310Bush v. Breinig (1886)
If one bids at a public sale of real estate and has the property struck down to him, and he afterwards, when in such a state of drunkenness as to suspend the use of reason and understanding, and not to know what he is doing, executes a written contract complying with the terms of the sale and pays a portion of the purchase money, he may avoid the contract, and in an action of assumpsit recover the portion of the purchase money paid;
113 Pa. 317Miller v. Zufall (1886)
1. A contract for the sale of growing timber to be taken off by the purchaser, without specification as to time, is an interest in land, within the meaning of the Statute of Frauds. 2. To take the ease of a parol sale of land out of the Statute of Frauds, the vendee must take actual, open, notorious, exclusive and continuous possession of the premises in pursuance of the contract, and where the whole purchase money has not been paid, he must have made such improvements thereon as canuot reasonably bo compensated in damages. 3. A., under an alleged parol contract for the sale of timber land, entered upon it, cut standing trees, peeled bark and removed the timber and bark therefrom, and to facilitate this, removed some rocks to make a passable road. He paid a small portion of the purchase money, less than the value of the timber and bark removed. Held that he did not take such possession or make such improvements as to take the sale out of the Statute of Frauds. 4. It is not necessary for the holder of an equitable estate in land, in an action of trespass against one for cutting and removing timber, to use the name of the holder of the legal title, but who had no possession when the trespass was committed; for an equitable estate will support an action of trespass.
113 Pa. 326Seigrist v. Schmoltz (1886)
Error to the Court of Common Pleas of Lebanon county: Of January Term 1886, No. 80. Assumpsit by William Seigrist administrator of the estate of Jacob Seigrist deceased, against John Schmoltz. Plea non assumpsit. The following are the facts as they appeared on the trial of the case, before McPherson, J. .Jacob Seigrist, an old man of sixt3-three 3'ears, during the early portion of the year 1879, came to B. W. Bennetch, residing near Richland, Lebanon county, Pa., and asked him whether he did not know somebody who would have his life insured in his (the stranger’s) favor, and would support him after he was unable to work. Bennetch said that he would ascertain. He then talked with his father-in-law, John Schmoltz, Sr., the defendant, after which, at the instance of Schmoltz, Bennetch went to Jacob Seigrist and began to negotiate with him for Schmoltz, for a policy on his (Seigrist’s) life, by asking Seigrist what he wanted out of the money to be secured in the policy. The negotiation resulted in an arrangement whereby a policy for $8,000 was to be taken out on Seigrist’s life in favor of John Schmoltz as beneficiary. Of this $3,000, the sum of ©2,800 was to be for the benefit of and paid to John Schmoltz, Sr., and ©200 to pay the funeral expenses of said Jacob Seigrist after his death. It was also contracted at the same time between Seigrist and Bennetch for Schmoltz, that Schmoltz would keep Seigrist out of the poor house by providing for him after he was unable to earn a living, as long as the policy remained in force, or as tlie language of the policy lias it, “$200 to pay the funeral expenses of said Jacob Seigrist : J. Schmoltz also agrees that Jacob Seigrist shall not become a pauper as long as this certificate is in force.” Benneteh then returned to his father-in-law, the defendant, and reported to him the result of his negotiations with Seigrist, and the terms of tlie bargain, and as Bennetch testified, “ and the old man (Schmoltz) agreed to do it.” “Thereupon the application was made and the policy taken out,” for $8,000, and John Schmoltz held the policy and paid all the assessments and dues thereon down to the time of Seigrist’s death. Seigrist continued working and supporting himself nearly, if not fully, two years after tlie policy was taken out, when the man with whom he was staying, on complaining to Schmoltz that the old man was sick, and that his house was uninhabitable, secured from Schmoltz the loan of ©300 on a mortgage with interest at the rate of six per cent, per annum, from liis wife to Schmoltz, on a house which she bought with this money. The mortgage was not fettered or cumbered with any conditions, but was a simple security for the loan of money. After Seigrist’s death and the payment of the insurance money to Schmoltz, he paid the mortgage with interest for one year — ©318—in settlement of the claim for keeping Seigrist, and retained the balance of the ©2,800. This ©318 is the entire amount paid by Schmoltz, besides the premiums, out of the ©2,800. Schmoltz was neither a relative nor a creditor. The plaintiff presented inter alia, the following points: 2. The membership, in the Aid Society was the membership of Jacob Seigrist, and as such in the absence of an insurable interest in Schmoltz, lie, Schmoltz, can and could take nothing under it except for advancements made thereon, and the surplus of the money received by him on the policy belongs to the estate of Jacob Seigrist, the insured. Refused. (Third assignment of error.) 4. The designation of John Schmoltz as beneficiary in the policy and the assignment to Emma Seigrist from the insured, both being unsupported by an insurable interest, other than as a security for future advances and a debt of one hundred dollars, the transactions were speculative as to them; and the plaintiff in this case is entitled to recover, and the verdict of the jury must be in favor of the plaintiff and against the defendant for the surplus of the money received by the defendant on the policy, after deducting therefrom all advancements and payments by him made on the security thereof. Refused. (Fourth assignment of error.) In the general charge the Court instructed the jury, inter alia, as follows: In June, 1879, an application was .made to the U. B. Mutual Aid Society for an insurance upon the life of Jacob Seigrist. In accordance with that application, the policy before me was issued. It is dated the 8th clay of July, 1879, and it declares that Jacob Seigrist has become a member of the company, and that this membership entitles John Schmoltz, Sr., to §2,800, — §200 to pay funeral expenses of said Jacob Seigrist: J. Schmoltz also agrees that Jacob Seigrist shall never become a pauper as long as this certificate is in force.” Following that are these words, “ heirs or assigns,” — and what I have just read is in parenthesis, — “heirs or assigns, upon the death of said Mr. Jacob Seigrist to §3,000.” [In other words, it is a policy of insurance for §3,000, of which §2,800 are to go to John Schmoltz, and §200 are to go to pay the funeral expenses of Jacob Seigrist. In addition there is an agreement contained therein, by which Mr. John Schmoltz agreed “ That Jacob Seigrist should-never become a pauper as long as this certificate is in force. Schmoltz accepted this certificate, and thereby assumed this obligation, namely: The obligation to maintain Jacob Seigrist, and see that he did not become a pauper so long as this certificate is in force. The certificate remained in force until the death of Jacob Seigrist; and you have evidence here with regard to the way in which, and the extent to which, John Schmoltz fulfilled the obligation which was imposed upon him by this paper.] (Fifth assignment of error.) [Now the question that we intend to submit to you is entirely a question of fact, namely: Whether or not this transaction was speculative in its character — whether it was so upon the part of Schmoltz — because that is the important question of course — whether it was upon the part of Schmoltz a speculution upon the life of Jacob Seigrist, or whether it was a Iona fide transaction; a transaction entered into upon his part in good faith, upon good motives — charitable or benevolent motives — with a disposition to befriend the man, who seemed to need friends; to support a man who seemed to need support — whether, in other words, the transaction is free from tbat taint which would make it void, namely: The taint of speculation.] (First assignment of error.) If Mr. Schmoltz, out of proper and commendable motives, undertook to support this man, we say to you that in our judgment he had a right to insure his life for the purpose of reimbursing himself for the outlays which he might reasonably expect to be called upon to make; and we think this view is supported by a case which was cited upon the argument here, namely: The case of the Reserve Insurance Company against Kane, in which a son was allowed to insure the life of his father; and one of the grounds on which it was put was that he might be obliged to pay for the support of his father, or that there might be cast upon him in certain contingencies the duty of supporting his father ; and that being so, he had a right to insure his father’s life, and protect himself against the outlays which he, that is, the sou, might be called upon to make. [I repeat briefly in conclusion, if you find that the transaction was in good faith, undertaken for the honest purpose of support, and that this policy was fairly taken out to reimburse Schmoltz for the outlays which at that time it was likely he would be called upon to make, then it is a good transaction, and the administrator of Seigrist cannot recover.] (Second assignment of error.) Verdict for the defendant and judgment thereon, whereupon the plaintiff took this writ and assigned for error the refusal of his second and fourth points, and those portions of the general charge included within brackets.
113 Pa. 332Landis v. Evans (1886)
1. When the primary design of a plaintiff in issuing an execution is to obtain a lien upon the defendant’s personal property, and not to sell the same except in the contingency of a subsequent execution being issued, the lien of the execution will be postponed to a subsequent execution. 2. When the facts in a ease do not warrant the conclusion that the plaintiff issued an execution to obtain a lien upon the defendant’s personal property, and not to sell the same except in the contingency of a subsequent execution being issued, but show simply a disposition on part of the plaintiff to treat the family of the defendant in the execution with due consideration, and not to subject them to unnecessary inconvenience or annoyance, the lien of the execution will not be postponed to a subsequent execution. 3. The assignments of error are an essential part of the pleadings in the Supreme Court, and as such should be so complete in themselves as not to require reference to the other parts of the record. Each specification should in and of itself present the question the Court is called upon to decide.
113 Pa. 336Zurn v. Noedel (1886)
1. A consignee to whom goods are sent to be sold on commission is not entitled to commissions for making the sale if he violates his instructions as to the sale. 2. If a married woman entitled to her separate earnings under the Act of April 3d, 1872 (P. L., 35), directs the holder of her note, the proceeds of which she invested in her business, to appropriate a sufficient amount to pay the same out of the amount due her by him in a business transaction, and also out of the same to appropriate a sufficient amount to pay a claim for which she is not legally liable, she cannot, in an action of assumpsit against him to recover the amount due her, prevent the amounts so applied by her from being set off against her claim. 3. Bovard v. Kettering, 5 Out.; 181, followed.
113 Pa. 349Strine v. Foltz (1886)
The Act of March 23d, 1877 (P. L., 25), entitled an Act “to empower the sheriff and prothonotaries of the several counties.....to sue for their fees,” undertakes to regulate the practice before justices of the peace; extends the powers and duties of justices of the peace and constables; it changes the method of collecting certain specified debts due and owing to particular persons during a certain period only; changes the rules of evidence in particular cases to which alone it applies, and is therefore a special Act, and within the prohibition of Article HI., § 7, of the Constitution.
113 Pa. 360County of Erie v. City of Erie (1886)
459. Case stated wherein the county of Erie was plaintiff and the city of Erie was defendant, as follows: 1. That the city of Erie is a municipal corporation, duly incorporated by an Act of Assembly, approved April 14th, 1851, P. L. 631, and others, amendatory thereof, and supplementary thereto, and is located in the county of Erie. 2.
113 Pa. 368County of Erie v. Commissioners of Water Works (1886)
A municipality owning property, in this case water works, from which revenue is derived, is subject to a county tax thereon under the Act oi May 14th, 1874, P. L., 155, and this whether the revenue thus derived be paid into the treasury of the municipiality or be used in maintaining and improving the property.
113 Pa. 373County of Lehigh v. Schock (1886)
1. In an action by an alderman against tlie county to recover Ms iees under tlie Act of September 23d, 1791, Sm. L. 43, in a ease where one had been brought before him charged with a crime, which charge upon examination he found to be unfounded, Ms judgment cannot be reviewed, and his docket is conclusive evidence that the charge was unfounded. 2. The word “crimes” in section 13 of the Act of September 23d, 1791, Sm. L. 43, is used in its general sense and means all indictable offences.
113 Pa. 380Hayes' Appeal (1886)
1 of Philctr delphia county, in equity : Of January Term 1886, No. 8. This was an appeal by Michael Hayes from the decree of said court sustaining a demurrer to and dismissing his bill in equity against The Bald Eagle Valley Railroad Company, The Pennsylvania Railroad Company and The Fidelity Insurance Trust and Safe Deposit Company, Mortgagees. The following is an abstract of the plaintiff's bill: 1.
113 Pa. 386Elkins & Co. v. Susquehanna Mutual Fire Insurance (1886)
2, of Philadelphia county: Of January Term 1886, No. 61. • Assumpsit by William L. Elkins, trading as William L. Elkins & Company, against the Susquehanna Mutual Fire Insurance Company of Harrisburg, P., on a policy of fire insurance issued by the defendants to tlie plaintiff. Pleas, non assumpsit, payment, set-off with leave. The following is all the evidence in the case: Policy Susquehanna Fire Insurance Co., to William L. Elkins & Co., No. 8784, for $1,575.
113 Pa. 395City of Wilkes-Barre v. Meyers (1886)
1. A. was appointed a policeman, of the City of W. An ordinance of said city provides, “that any patrolman absent from duty without leave shall forfeit all pay for the time of such absence except in eases of sickness when properly certified by a physician.” A. was absent from duty without leave for five months on account of sickness. He did not present a physician’s certificate that he was sick. In an action by A. against the city to recover salary for the time he was thus absent, held, that he could not recover. 2. The Act of July 7th, 1879, P. L., 191, enlarging the civil jurisdiction of justices of the peace to $800, “ except cities of the first class ” is not special or local within the prohibition of Article HI. section 7 of the Constitution, for in this Act “ cities of the first class ” means only Philadelphia, and in that city by Article V. section 12, of the Constitution the oilice of alderman is abolished and magistrates are provided for whose civil jurisdiction — which may not be increased by the legislature — is limite'd to $100; while by Article Y. section 11 of the Constitution, justices of the peace or aldermen are provided for without any limit to the power of the legislature to confer civil jurisdiction upon them.
113 Pa. 402Mattern v. McDivitt (1886)
1. The accounts which are excepted from the operation of the Act of March 27th, 1713, Sm. L., 76, Statute of Limitations, are “such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants.” These may include labor or anything that is provable by book of original entry. Such accounts on one side are not enough. "A demand on the other side founded on anything else than “ such accounts as concern the trade of merchandise ” is not sufficient to bring the account of the other side within the exception. 2. Professional services as attorney at law are not the subject of “ such accounts as concern the trade of merchandise,” and will therefore not bring an account of the other side within the exception of Statute of Limitations. 3. Under a rule of Court which provides that if the plaintiff shall verify his book account filed with his declaration by his affidavit, it shall be evidence unless the defendant file his affidavit stating that he believes injustice will be done him unless the plaintiff be compelled to produce his books and subject himself to cross-examination; an administrator may make the affidavit, verifying the book account of the decedent without giving the source of his information.
113 Pa. 412Erie City Passenger Railway Co. v. Schuster (1886)
1. The contributory negligence of a parent will not bar the recovery of damages by an infant for injury resulting to it from the negligence of another. 2. To a child of tender years — four years in this case — no contributory negligence can be imputed. 8. In presenting points for charge, things of which there is no evidence should not be blended with tilings of which there is evidence. Instruction upon things imagined should not be blended with instruction upon things of which there is evidence.
113 Pa. 417Humphrey v. County National Bank (1886)
. Error to the Court of Common Pleas of Clearfield coxmty: Of July Term 1885, No. 85. Assumpsit brought December 30th, 1876, by The County National Bank of Clearfield against Abram Humphrey, to recover the amount of two promissory notes. Pleas, non assumpsit, payment, set-off with leave. The defendant claimed by set-off certain notes of A. C. Finney, and asked to have a balance certified in his favor. The facts of the ease sufficiently appear in the opinion of the Supreme Court. On the trial the plaintiff presented, inter alia, the following points: 2. Under the pleading and evidence and facts appearing in this ease, the said Finney notes are, as a defence in this case, barred by the Statute of Limitations. Answer. This point we answer in this way: That if you come to the conclusion that this arrangement was made between Mr. Humphrey and the bank as testified to by Humphrey ; that these notes of A. C. Finney and indorsed by Samuel Mitchell were to be held as collateral security, and that these notes were discounted upon the strength of that arrangement, and you find there was a sufficient amount to pay these notes, we instruct you the notes would be paid ; but yet, so far as to allow the defendant to recover for the difference between these collaterals and the amount of the notes in suit, we say to you, under the pleadings in this case, the defendant will not be entitled to recover. You cannot render a verdict fox the defendant .in this case for anything in excess of the amount of these two notes. If, after deducting the amount of these notes in suit from the collaterals, there would be a balance over and above the amounts of these notes in suit, you cannot render a verdict for such balance, as that would be barred by .the Statute of Limitations. (First assignment of error.) In the general charge the Court, Mayer, P. J., instructed the jury as follows : “ If, under the instructions we have given you, 3ou are satisfied that the plaintiff is not entitled to recover, then you render a general verdict for the defendant.” (Second assignment of error.) Verdict for the defendant and judgment thereon, whereupon the defendant took this writ, assigning for error the answer of the Court to the plaintiff’s second point and that portion of the general charge above set out.
113 Pa. 423Buck v. Wilson (1886)
1. Where a creditor takes from his debtor a note payable at a future day on account o£ his claim the law raises no implication that he agrees to give time, until the maturity of the note, for the payment of the original debt: but the agreement must be proved as a fact, dependent upon the understanding of the parlies at the time the security was given. 2. Where the cause of action is the same a former judgment in a sutó between the same parties, though an inadequate one is a bar to a sec-| ond recovery. j 3. An action brought for an entire and indivisible demand and a recovery therein of only a part of said demand through the misapprehension of the plaintiff as to the effect thereof will bar a subsequent action for the residue of the same demand. 4. A. was indebted to B. on an entire book account. He gave B. his live notes for the amount of this account which it was admitted were not given as a,n ext inguishmeut of the debt and there was no evidence that they wore given as an extension of time. When two of these notes became duo, B. brought an action in assumpsit not upon tlie two notes but upon Ms book account and recovered judgment against A. for the amount of the two notes. He subsequently brought another action in assumpsit upon the sume book account and sought to recover the amount of the three notes, being the balance between the whole account and the judgment obtained. A. defended upon the ground of a former recovery. ITald, that the recovery in the first action was a bar to a recovery in the second.
113 Pa. 431Godcharles & Co. v. Wigeman (1886)
Error to the Court of Common Pleas of Northumberland county: Of January Term 1886. No. 196. Assumpsit by Frank Wigeman against Reuben Johnson, C. A. Godcharles, R. A. Bortly, C. Godcharles, S. A. Andrews, William Godcharles and H. M. Taggart, trading and doing business under the firm name of C. A. Godcharles & Companj% to recover wages for labor as a puddler. Pleas, non assumpsit, payment, set-off with leave. The following facts appeared on the trial before Rockefeller, P. J.: The plaintiff was employed as a puddler by the defendants in their nail mill at Milton, Pa. The defendants posted in their mill a set of rules to govern their works, inter alia: Puddling, $4 per ton of 2240 pounds ; scrap, $2.50 per ton of 2240 pounds. They claimed on the trial that it was the custom in all mills of like character to post rules for the government of the work, and that these -rules became part of the contract between the employer and employé. During the time of his employment the plaintiff asked for and received from the defendants orders on different parties for the-purchase of coal and other articles, which orders were honored by the parties on whom they were drawn, and Godcharles & Co. afterwards paid them ; these orders were similar to the following : “ William P. Stout — Let Frank Wigeman have coal to the amount .of $4.25. C. A. Godcharles & Co.” These orders the plaintiff maintained could not, under the Act of June 29th, 1881, P. L., 147, be applied as a set-off to his claim for wages for labor as a puddler. On the trial defendants’ counsel offered to prove -that it is the universal custom in mills in Pennsylvania, of the character of that owned by defendants, to fix the rate of wages for puddling at so much for 2240 pounds; the evidence that plaintiff recognized this custom and acted upon it, by settling with defendants on their several pay-days upon this basis, being already in. This for the purpose of showing the contract between the parties, as to the amount of wages the plaintiff was to receive. To this the plaintiff’s counsel objected: 1. That the plaintiff cannot be bound by rules fixed in defendants’ mill unless he had notice of them ; merely because it is the universal custom in Pennsylvania in mills of this character would not bind the plaintiff unless he had knowledge of that universal custom, and there is no evidence that he had. 2. Because it has not been shown that plaintiff ever made a settlement with these defendants for anything, or in any way, much less upon a basis of 2240 pounds to the ton, and it is not shown that plaintiff eyer knew he was going to be paid at that rate. 8. The evidence is immaterial and irrelevant for the purpose offered. The Court : The evidence of a custom to pay for puddliug at a rate different from what the law of the State declares shall be a ton, we think is inadmissible to bind the plaintiff. But if this mill had rules stating the price to be paid for puddling a ton of 2240 pounds, and the plaintiff knew of these rules, I think he would bo bound. (First assignment of error.) Defendants’ counsel offered to prove that it is the universal custom in Pennsylvania for all mills of the character of defendants’ to have a set of rules governing the terms upon which the work of puddling is done, taken in connection with the evidence already in as to what the rules of defendants’ mill in relation thereto were, and that the same were posted in conspicuous places in said mill during the plaintiff’s employ' ment therein. This for the purpose of showing the contract between the parties as to the terms of plaintiff’s employment by defendants. To this the plaintiff’s counsel objected: 1. Because this custom would not prevail unless the plaintiff knew of the existence of it, and it is not offered to show that he knew of the existence of such a custom. 2. Because the rules of this mill would only be binding upon the plaintiff if lie knew them. 3. Because the evidence is immaterial and irrelevant. The Court : The objections are sustained, the evidence rejected. (Second assignment of error.) Defendants’ counsel offered to prove that it is the universal custom in Pennsylvania for mills of the character of defendants’ to have a set of rules governing the terms upon which the work of puddling is done ; taken in connection with the evidence already in as to what the rules of defendants’ mill were in relation thereto, and that the same were posted in a conspicuous part of the mill at the time of and during the plaintiff’s employment therein. This for the purpose of showing that inquiry was the duty of the plaintiff as to what the rules of this mill were, and to affect him with constructive notice of said rules. To this the plaintiff’s counsel objected : 1. Because it is not offered to be shown that plaintiff knew of this universal custom. 2. Because this universal custom will not govern the making of the law of this case. 3. The plaintiff could not have been put upon inquiry unless lie knew of this universal custom. 4. Because the evidence is immaterial and irrelevant. The Court : I am of opinion that the offer of evidence to show a custom, without offering to show that plaintiff had knowledge of such custom is inadmissible. The objections are sustained, the evidence rejected. (Third assignment of error.) The defendants presented the following points : 1. If the jury believe that it is the universal custom in mills of the character of defendants’ to have rules fixing the terms upon which puddling is done, and if the jury believe that the rules of defendants’ mill were conspicuously posted in the mill and office, it was the duty of the plaintiff seeking employment at the mill to inquire' what the rules of the mill were, and the fact that the rules were so posted would affect him with notice as to what they were, and he would be bound by them. Answer. This perhaps would be so if there was any evidence that the plaintiff knew of the existence of such a custom, but in the absence of such evidence, I cannot say that as a matter of law that the mere posting of the rules in conspicuous places in the mill and office would affect the plaintiff with notice as to what they were, and that he would be bound by them. (Fourth assignment of error.) 2d. If the jury believe that one of the rules of defendants’ mill was that 2240 pounds of iron should be puddled for a ton, and that plaintiff at the time of hiring with defendants had either actual or constructive notice of such rules, this rule then became a part of the contract, and plaintiff must make 2240 pounds for a ton. Answer. This is so if the plaintiff had actual notice of such rule. You have the evidence as to the posting of the rules in conspicuous places in and about the defendants’ mill, and you are to determine from all the evidence in the case whether the plaintiff had notice of the rule. (Fifth assignment of error.) In the general charge the Court instructed the jury, inter alia, as follows: The defendants contend that this Act of Assembly (Act of June 29th, 1886), is unconstitutional and void, and that it-ought not to be applied in this or any other case ; that it is not binding upon the citizens of this Commonwealth because it applies to a class, and that the legislature is forbidden by the Constitution to pass any laws which are not general, and. that do not apply to all citizens of the Commonwealth. The question has not as yet been raised before the Supreme Court of this State, so far as I know. If it had been decided by that Court, of course that decision would be binding upon this Court. It has, however, been raised before other-courts, and it has been decided to be constitutional, and this Court does not now propose to say that it is unconstitutional. Therefore, so far as its provisions apply to the case now before the Court and jury, we will endeavor to apply them. It is these orders that were given to William P. Stout and Dr. Follmer that the plaintiff especially objects to, and contends that they were illegal and void on account of the provisions of the Act of Assembly passed in 1881, which I have just read in your presence. The legislature doubtless intended that there should be cash settlements made at the end of each month, and that all workmen should be paid in cash, or by an order such as the third section describes. That being so, all orders given by employers engaged in the business of manufacturing, to their workmen, payable in goods or anything other than money, are void, and cannot be used by such manufacturer or employer in the payment of the wages of the employé. (Sixth assignment of error.) Therefore we say to you as a matter of law, that orders, given by the defendants, Godcharles & Company, to the plaintiff on William P. Stout, payable in coal, cannot now be used by the defendants in payment of the plaintiff’s claim in this case, he being one of their workmen at their manufactory; and also the same remark applies to the order given to the plaintiff by the defendants on Dr. J. S. Follmer, unless there be other facts and circumstances in the case that would change it. (Seventh assignment of error.) Verdict for the plaintiff in the sum of $87.67, and judgment thereon, whereupon the defendant took this writ assigning for error the rejection of evidence, the answer to defendant’s points, and those portions of the charge above set out.
113 Pa. 438Appeal of Corson (1886)
Appeal from the Court of Common Pleas No. 4, of Philadelphia county: In Equity: Of January Term 1885, No. 303. This was an appeal by Robert Corson, executor of Ellen M. McLean, deceased, from a decree of said Court ordering- the proceeds of a policy of life insurance on the life of Ellen McLean to be paid to James Gamier. The parties to the bill were Robert Corson, executor of Ellen McLean, deceased, plaintiff, and The Provident Savings Life Assurance Society of New York and James Gamier, defendants. After issue was joined, G. W. Arundel, Esq. was appointed Examiner and Master, who took the testimoiw in the case and made the following report: The bill sets forth that Ellen McLean, of the city of Philadelphia, being indebted to the defendant, James Gamier, in the sum of five hundred and nine dollars, in order to secure him in the payment thereof, made application to the Provident Savings Life Assurance Company of New York, one of the defendants, and obtained a policy upon her life for the benefit of the said James Gamier in the sum of two thousand dollars, which policy was duly issued by the company defendants on the seventh da}*- of March, 1883, and numbered 10,674. That subsequently the full amount of the indebtedness above mentioned was paid to the said defendant, James Gamier, and that on the eighteenth day of August, A. D. 1883, the said Ellen McLean died, leaving issue, one son and a daughter, the latter being a minor, and also leaving a last will and testament dated August 6th, 1883, by which she appointed Robert Cor-son, the complainant in this ease, one of the executors; that letters testamentary were subsequently granted to him, and that after due proofs of the death of the said Ellen McLean were made to the company aforesaid, the said Robert Corson, complainant, demanded from said James Gamier, defendant, the assignment of the aforesaid policy for two thousand dollars, inasmuch as the debt for which it was intended as collateral security had been fully paid and satisfied, and that the said Gamier refused to make the assignment, and further that the said plaintiff has demanded payment also of the company defendant, and that the said company declines to pay the same without the surrender of the policy. The complainant prays the Court that the defendant, James Gamier, be ordered and decreed to assign and surrender to the complainant the above described policy, and that the Provident Savings and Life Assurance Company be ordered and decreed to pay the said complainant the above mentioned sum of two thousand dollars, being the amount of said policy No. 10,674, issued on the life of the said Ellen McLean. The Provident Savings and Life Assurance Company, defendants, interpose no defence and disclaim any interest in the matter, and to avoid liability for costs have paid the amount of said policy, to wit: Two thousand dollars into Court to await the decision in this suit. The answer of James Gamier, defendant, admits the death of Ellen McLean and the execution of her last will and testament whereby the said Robert Corson was appointed her executor, but denies that the indebtedness of the said Ellen McLean to him has ever been settled or paid, and also further denies that the said policy for two thousand dollars in the Provident Savings and Life Assurance Company of New York, was ever issued, executed or accepted as collateral security for any debt, but that the policy was issued to him by the said company on the life of the said Ellen McLean on the ground of her relationship to him, she being Ins aunt, and that all costs of the policy and subsequent premiums hereon were paid by him. From the testimony adduced before the Examiner the Master found the following facts : James Gamier, the defendant, was a nephew of Ellen McLean, who, prior to the spring of 1880 lived with her two minor children at Lawrence, Massachusetts, where she was employed in a milk At the instance of Mr. Gamier she came to Philadelphia with her children, he having sent her money for that purpose. After her arrival in this city Mr. Gamier bought a grocery store at Tenth and Manilla streets, fitted it up and stocked it at his own expense, and placed Mrs. McLean in charge 5 he replenished the stock from time to time, and Mrs. McLean paid him as she got money from the receipts of the store. This store Mr.' Gamier sold at a good price, and Mrs. McLean received the price. Thereafter Mr. Gamier bought another store for her on Fitzwater street, and fitted it up in the same way, and subsequently sold it for Mrs. McLean’s benefit. And thereafter another store was bought by Mr. Gamier on Fifth street below Christian, and fitted up for Mrs. McLean, and the stock replenished from time to time by him. This store was also sold at a good profit and Mrs. McLean received the price. The relationship between Mrs. McLean and Mr. Gamier was most intimate. He was her friend and adviser, and in the. language >of one of the witnesses was more like a son to her than a nephew. At the instance of Samuel, the son of Mrs. McLean, she had her life insured in the Provident Savings and Life Assurance Society of New York, in two policies — one of them in her own favor, and the other in favor of her nephew, James Garnier, the latter policy was for 12,000, and neither it nor the application for it had any reference to any indebtedness from Mrs. McLean to Mr. Gamier, or that it was taken to secure any indebtedness. In fact, the defendant Garnier, in his answer and his counsel on argument, disclaimed that it was taken out to secure an indebtedness, and avowed that there never had been a settlement between Mrs. McLean and Mr. Garnier, and from the nature of their intimacy could not be, and stated to the Master that if his right to the proceeds of the policy was not otherwise absolute, he would not, and did not, claim it by reason of any indebtedness. Mrs. McLean died in August, 1883, and the proof of death was made. The insurance company, recognizing their liability on the policy, were about to pay it to Mr. Garnier when the bill in this ease was filed. By agreement between the parties, which stands without prejudice to their rights in any respect, the amount of the policy was paid into Court to await the issue of this suit, and the compai^ was relieved as active defendants. At the time of the preparation of the proof of death, it is testified on the part of the plaintiff that Garnier stated his interest to be that of a creditor to the amount of $500. This Garnier denies, and states that the commissioner who made out the papers told him that it was necessary, under the laws of the state of New York, that he should put in some debt to support his claim as beneficiary. The Master, however, does not think this matter at all material in view of the positive disclaimer of Garnier as aforesaid. The premiums and charges on this policy appear to have been paid by Garnier. Mrs. McLean made a will just prior to her death, in which she made disposition of the proceeds of her own policy, but makes no reference whatever to that issued to Gamier. From a careful consideration of the only question presented in this case by the bill and answer, namely; whether tbe defendant Gamier bad an assurable interest recognized by the law in the life of the said Ellen McLean, and from the evidence adduced before liim which fails to establish that the said defendant, James Gamier, had any pecuniary interest in tbe life of tbe said Ellen McLean, either by virtue of his relationship or otherwise, in view of tbe current of decisions in Pennsylvania tbe Master’s decision must be for the complainant. The Master, therefore, recommends to your Honors that a decree be made that from the fund in Court the defendant be reimbursed for the cost of policy and subsequent premiums paid thereon, with interest, and that the remaining portion of said fund be paid to tbe complainant with costs. The defendant filed, inter alia, tbe following exceptions to this report; 1. The learned Master has erred in his statement of the case and tbe law, in this : From a careful consideration of the only question presented in this case by the bill and answer, namely: whether tbe defendant, Gamier, had an assurable interest recognized by the law in tbe life of the said Ellen McLean, and from tbe evidence adduced before him wliich fails to establish that tbe said defendant, James Gamier, had any pecuniary interest in the life of the said Ellen McLean, either by virtue of his relationship or otherwise, in view of the current of decisions in Pennsylvania, the Master’s decision must be for the complainant. 2. Because the learned Master erred in not finding for defendant and recommending a decree in his favor. The Court, Arnold, J., filed the following decree : We therefore sustain all his exceptions to the Master’s report except the third, and award the sum in Court to him ; the costs, since the fund was ordered to be paid into Court, to be paid by tbe plaintiff, and the costs prior to that time to bo paid out of said fund. The plaintiff thereupon took this appeal, assigning the decree for error.
113 Pa. 449Adams's Appeal (1886)
This was an appeal by David E. Adams, administrator of James D. Willoughby, deceased, from a decree of said Court dismissing his bill in equity, wherein Frank Gardner and George S. Beetem, surviving partners of the late firm of F. Gardner & Co., were defendants. The bill was filed on the 30th of December, 1882.
113 Pa. 459Miller's Appeal (1886)
277. Appeal from the decree of said Court recommitting the report of the Auditor and confirming the amended Auditor’s report made on the basis of the decree recommitting it, wherein Mary C. Miller, Phoebe Jane Pile, Tíllie S. Lint, Annie E. Coleman and Maggie V. Coleman, are appellants, and James L. Pugh, guardian of Mabel M. Coleman, appellee.
113 Pa. 468City of Erie v. Reed's Executors (1886)
1. When, the law has confided to a special tribunal the authority to determine certain matters arising in the course oí its duties, the decision of that tribunal within the scope of its authority is conclusive. 2. The Act of February 25th, 1870, P. L., 242, confides to the councils of the city of Erie the final determination of the fact whether or not certain real estate within said city is rural, not having the benefit of lighting, paving, police, water, etc: that it may be assessed as farm land ana rated as such. 3. If the discretion to determine whether or not certain real estate within the city of Erie, confided by law to the councils of said city be abused, a court of equity mil restrain the perpetration of a palpable wrong arising therefrom. 4. All ordinances passed prior to the Act of April 30th, 1885, P. L., 11, levying taxes in any of the cities of the third, fourth and fifth classes, in amount not exceeding twenty mills in any one year, are by said Act made valid. 5. The right to impose taxes for the support of the government, in all its departments, state, county or municipal, is the prerogative of the legislature. Subject to the restriction of the Constitution, this power may be exercised by such agencies as the legislature may establish for that purpose.
113 Pa. 477Central Bank v. Earley (1886)
1. There are but three modes in which facts arising upon the evidence can find their way into the record; by the finding of a .jury, which is a - special verdict; by the agreement of the parties, called a case stated; and by the certificate of the Court contained in a bill of exceptions. The last is the mode directed by the statute in the case of reserved points. 2. A question of law cannot arise, in a judicial sense, without facts. The facts out of which the question springs must be seen in the record proper or in the superadded statute record furnished by a bill of exceptions, to enable the Supreme Court to review it. 3. A bill of exceptions to the ruling of the Court on a point of law reserved, does not bring up the testimony out of which the point arose.
113 Pa. 482Swank v. Phillips (1886)
1. When a record .of an agreement to purchase land which is legal evidence under .the .Act of February 21st, 1834 (P. L., 68), is rejected as evidence, but the original agreement is subsequently admitted in evidence, it is not a ground for reversal. 2. A purchaser of real estate who records his deed, takes subject to an outstanding title-of which he had notice at the time of the purchase, though there was no .record notice of the same. 3. It is the duty of the Court either to affirm or deny a well constructed and definite point submitted for instructions to the jury. 4. An incompetent witness cannot be j^ermitted to testify under objection, even though it be on the same subject upon which an incompetent witness on the other side was permitted to testify without objection. 5. In an action of ejectment, one of several tenants in common, in whom an outstanding title is alleged to exist, the grantor of which is dead, is not a competent witness for the defendant, nor is the widow of the grantee of said outstanding title a competent witness.
113 Pa. 490Brossman v. Lehigh Valley Railroad (1886)
Error to the Court of Common Pleas of Northampton county: Of January Term 1886, No. 58. This was an action on the case brought by Catharine Brossmati against tbe Lehigh Valley ilailroad Company to recover damages for tbe death of her husband, caused by tlie alleged negligence of the said company. The following are tbe facts of the case as they appeared on the trial, before Schuyler, J.: William Brossman, husband of the plaintiff, was employed by the defendant company on a night freight train. He entered their employment late in August, 1879, aud was killed on October 18th, following. The train on which be ran left Easton about 8.80 p. M. that evening. When they reached East Penn. Junction the train took on four cars, which were to be left at Hokendauqua. This place is about four miles above the junction. Between these two places there are three or four bridges across the railroad, under which the cars had to pass, at all of which the space between the bridge and ears did not permit the standing brakeman to pass under them. The duty of deceased at or about the time of the accident was to find or assist in finding the cars which were to be left off at Hokendauqua. Frank Hart, the fellow brakeman, says, at tbe junction they took on four cars for Hokendauqua. They were together, and formed one continuous line by themselves, and when one was found the brakeman then had them all. Hart and Brossman, the two brakemen, after leaving the junction station, while the train was going at thirty-five miles an hour, at which rate it would require about eight or ten minutes to go from the station to Hokendauqua, had to find these cars and be on them in order to detach them at Hokendauqua while tbe train was in motion. It was Brossman’s duty to detach tbe cars. He was to cut them from the train below, and Hart was to cut them off above, and then Brossman was to bold the rear cars, these four among them. He was to hold the lower cars with the brake, and Hart would shift them in. The train was to be cut in two, and Brossman was to be at the brake of the rear cars. He and Hart had passed from one car to another on the top, and had already been on three. They had not found the four particular cars for which they were hunting. Hart just then imagined he had lost a waybill, so he went in search for that, and Brossman helped him. It appears that they were riot found till after the accident. The way-bills were in Hart’s charge. There is no evidence that Brossman had any duty to perform as to them. Hart and Brossman were on one car. Hart was stooping down to look over his way-bills. Brossman came and was going to step over to help him count the way-bills, when the accident happened. The plaintiff proved that the bridge was fifteen feet high, and that the car on which Brossman was, was twelve feet high; that the train was running at the rate of thirty-five miles an hour; that there were no lights to indicate the position of the bridge; nothing to warn the men that they were approaching the danger; that it was impossible to see the bridge on that night; that there were ten other bridges of the same height, within five miles of this one; that the defendant company had erected the bridge. The plaintiff claimed that the company were guilty of negligence in exposing Brossman to unnecessary risk; that the failure of the eompanj to provide proper safeguards caused his death. The Court on motion entered a compulsory nonsuit, and subsequently refused a motion to strike it off, deciding, 1st, that Brossman was guilty of contributory negligence, and 2d, that the defendant was not guilty of negligence, filing the following opinion: Where a railroad company voluntarily subjects its employés to dangers which it ought to provide against, and an accident happens to an employé from a want of proper provision against such danger, the company is undoubtedly liable. But, on the other hand, it is not liable for accidents happening from the ordinary risk and dangers of the business, for it is a legal presumption that the servant assumed the risk of such accidents when he entered the service of the company. Again, we,may further extend this rule by saying that the servant or employé assumes the risk of all dangers, however they may arise, against which he may protect himself by the exercise of ordinary observation’and care: Pittsburgh & Connelsville R. R. Co. v. Sentmeyer, 11 Norris, 280. This may be very poor law. I think it is otherwise; but, whether good or bad, it is the law of this state, and to it the judges of the state must yield obedience. If, therefore, the evidence given by the plaintiff above shows that the accident by which Brossman lost his life could have been prevented by the exercise of ordinary observation and care on his part, then the plaintiff cannot recover. Let us see how the fact is. According to the plaintiffs own showing, William Brossman, for nearly two months immediately preceding his death, had been in the employ of the defendant as regular brakeman. During this time he frequently passed under the bridge where he lost his life. Before he became regular brakeman, he had acted as extra brakeman about nine months, in which capacity he also passed and repassed under this bridge many times. He, therefore knew, or what amounts in law to the same thing, he had an opportunity to know the exact location of the bridge, how High it was, and just how much mare was required to avoid collision with it. The night on which he lost his life was very dark and “ fearfully stormy,” a fact which, in itself, would have quickened any man of ordinary prudence into greater watchfulness. The train on which he was employed had taken on four cars at East Penn Junction, which he knew to be only a short distance below the bridge, and thus he had notice that the bridge was near at hand. He was on the top of a car which was too high to admit of his safely passing under the bridge without stooping. Can there be any question that it was his duty under such circumstances, to be on a sharp lookout? How was the fact? As the train was nearing the bridge, Frank Hart, a fellow brakeman, was standing on one of the box oars in a somewhat stooping position, examining his waybills, and Brossman stood alongside of him, the two lighted lanterns of the men being near by. Hart’s account of the situation isas follows : “Then I thought I had lost one of my waybills, and we came back again, and just as I stooped down to count my waybills the bridge hit him. He was going to stoop over at the same time to help count the waybills, and then this thing happened. The following questions put to Hart on cross-examination, with his answers, throw further light on the subject: “ Q. You did not watch out for tlie bridge, did you ? A. No ; we had our mind on our work. Q. And neither you nor Brossman watched out for the bridge? A. No; we did not think of it.” Was a bolder case of contributory negligence ever brought before a Court ? But it is argued that, nevertheless, the question of contributory negligence was for the jury. I do not so understand the law. The foregoing are the uncontradicted facts, as shown in the plaintiff’s own testimony. “ In such a case,” says Agnew, C. J., in Central Railroad v. Feller, 4 W. N., 160, “ the question becomes one of law.” And in Penna. R. R. Co. v. Werner, 8 Norris, 64, Sterrett, J., says: “ When tlie facts are admitted, or so clearly and conclusively proved as to admit of no reasonable doubt, it is the duty of the Court to declare the law applicable to them.” But there is another difficulty in the waj of the plaintiff’s recovery quite as serious as the one we have been considering. Whilst it is true, as we have seen, that where a railroad company voluntarily subjects its employes to dangers which it ought to provide against, and an accident happens to an employé from a want of proper provision against such danger, the company is undoubtedly liable; it is at the same time equally true, that where the danger is an obvious one, of which the employés either had or ought to have had knowledge, in every such case there arises a legal presumption that the employé assumes the risk. In Green & Coates Streets Passenger Railway v. Bresmer, 10 W. N., 380, Mercur, J., says: “ A servant, however, assumes the risk naturally and reasonably incident to his employment. He is not bound to risk his safety in the service of his master, and may if he see fit, decline any service in which he reasonably apprehends injury to himself. Inasmuch as the relation of master and servant cannot imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to take care of himself, the servant cannot complain if he is injured by exposure, after having the opportunity of becoming acquainted with the risks of his employment and accepts them.” So, in Owen v. New York Central Railroad Company, 1 Lansing, 108, the Supreme Court of the state of New York lay down a law as follows: “An employé, who contracts for the performance of hazardous duties, assumes such risks as are incident to their discharge, from causes open and obvious, the dangerous character of which he has had opportunity to ascertain. A brakeman, in the employ of a railroad company, while discharging duties in the line of his employment upon the roof of a freight car, was carried against a highway bridge and sustained injuries, for which he brought an action against his employer. The brakeman had entered into the . employment of the company, with knowledge of the position and height of the bridge, and he had opportunity of informing himself as to its continuance in the same position. Held, that the plaintiff should have been nonsuited, the danger from the bridge being already incident to the labor he undertook to perform.” So, in Gibson v. Erie Railroad company, 18 Sickles, 449, the Court of Appeals in the same state declare the law to be as follows : “ Where a servant enters upon emplojunent from its nature necessarily hazardous, he assumes the usual risks and perils of the service, and all those risks which are apparent to ordinary observation. If he accepts service with knowledge of the character and position of structures, from which employes might be liable to receive injuries, he cannot call upon his master to make alterations to secure greater safety, or in case of injury hold him liable.” And the decisions by the highest Courts of other states, so far as I can discover, have been uniformly in the same direction. I will content myself with a bare reference to some of them: Baltimore & Ohio Railroad Company v. Strieker, 51 Md., 47; Baylor v. Delaware, Lackawanna & Western Railroad Company, 40 N. J., 23; Davitt v. Pacific Railroad Company, 50 Mo., 302 ; Rains v. St. Louis, Iron Mountain & Southern Railroad Company, 71 Mo., 164; Clark v. St. Paul & Sioux City Railroad Company, 2 Am. & Eng. Railroad Cases, 240. This may be hard law — I am not prepared to say that it is — ■ but if it be, the remedy is with the law-making power. The duty of the Courts is to administer the law as they find it. They have no power to alter it. If employés of railroad companies think that the law as it stands militates against their just rights, they must appeal to the legislature. The Courts are powerless. I think I have shown that the case of the plaintiff as it stood at the close of their evidence was fatally defective in two particulars, 1st, in disclosing contributory negligence on the part of William Brossman, and 2d, in failing to show negligence on the part of the defendant. Either of these defects, standing alone, would be sufficient to prevent a recovery by the plaintiff'. It follows that the present motion cannot prevail. And now, October 8th, 1883, the motion to strike off the nonsuit entered at the trial, is denied. The plaintiff thereupon took this writ assigning for error the refusal of the Court to take off the compulsory nonsuit.
113 Pa. 500Sager v. Galloway (1886)
1. A devise of property, when devisee arrives at the age of twenty-one, with a devise over in case he does not attain that age, without any reference to his having or not having issue, and when no provision is made for devisee during his minority, is contingent and does not vest until he arrives at the age of twenty-one, unless there be something else in the will indicating an actual intention of the testator to the contrary. 2. A devisee of a contingent remainder cannot maintain an action for damages in the nature of waste.
113 Pa. 510Dull's Appeal (1886)
Aureal from the Court of Common Pleas of Fayette county: In Equity : Of January Term 1886, No. 191. This was an appeal by Jacob Dull from a decree of said court dismissing his bill, wherein John W. McDowell was defendant. The following is an abstract of the plaintiff’s bill: 1. That your orator is now, and has been for five years last past, continuously a resident of Connellsville borough, in said county. 2.
113 Pa. 519Lake Shore & Michigan Southern Railway Co. v. Rosenzweig (1886)
3L. A passenger’s railway ticket Is evidence of the payment of Ms fare and Ms right to be carried according to its terms. It does not ex})ross the whole contract. What it does not sot forth may be ascertained from the reasonable rules and regulations of the railway company. Ho is bound to inform himself of such regulations respecting the conduct of trains and the rights of passengers. 2. The law docs not presume that one about to become a passenger or one who has become a passenger on a railway knows the rules and regulations of the railway company. 3. One who neglects to inform himself, as to the rules and regulations of a railway company, has no greater right under Ms ticket than if had acquired actual knowledge of the terms of Ms contract. 4. A passenger’s right to recover damages for injuries received, through the negligence of the conductor of a railway tram, in putting Mm off tlio train at a dangerous and improper place, does not depend upon Ms right, under his contract with the company, to ride upon that train, but- upon the fact that his injuries were the natural and probable consequence of the negligent act of the conductor. i>. A passenger who has an open way to an open car going to the place to which he bought and holds a ticket, and enters the car without knowledge that Ms ticket is not good on that ear, is not a trespasser. 6. A railway company owes a duty to every passenger who in good faith purchases a ticket and enters any of its conveyances. If the conveyance is one which by the contract the passenger has no right to take, its duty is, to inform him and put him off at a proper place. 7. The general rule in cases for negligence is, that only compensatory damages can be given; but exemplary damages may be given where the injury complained of was caused by the defendant’s wilful misconduct, or that entire want of care which would raise a presumption of conscious indifference to consequences. 8. A corporation is liable for exemplary damages for die act of its servant, done within the scope of his authority, under circumstances which would give such right to the plaintiff as against the servant, were the suit against him instead of the company. 9. Statements made to his physician Toy one who has sustained injuries through the negligence or another, as to the severity of his injuries, his pains and sensations, are competent evidence in an action to recover damages therefor. 10. Liehtenwallner v. Laubach, 9 Out., 866 followed.
113 Pa. 544Borough of Carlisle v. Brisbane (1886)
6. Tins was an action of trespass on the case brought by John F. Brisbane against the Borough of Carlisle to recover damages for injuries sustained by reason of the alleged negligence of the municipal authorities in obstructing their streets without giving warning of the same. Plea, not guilty.
113 Pa. 554Dreisbach v. Mechanics' National Bank (1886)
1. The lien of a writ of attachment issued under the Act of March 17th, 1869, P. L., 8, commences from the time the writ comes into the hands of the proper officer for service. 2. Failure on part of the officer serving a writ of attachment, under the Act of 1869, to take the property into his possession when the same is capable of manual seizure as required by the third section of said Act, does not affect the validity of the service of the writ. 8. As a defendant in an attachment under the Act of 1869 cannot allege the invalidity of the attachment because the money attached was left in his own possession, his voluntary assignee for the benefit of creditors to whom an assignment was made after the service of the attachment, is similarly and equally disabled.
113 Pa. 563Phœnix Iron Co. v. Commonwealth ex rel. Sellers (1886)
Error to the Court of Common Pleas No. 2, of Philadelphia county: Of January Term 1886, No. 81. On January 27tb, 1883, George H. Sellers, a stockholder in the Phoenix Iron Company, which is a manufacturing corporation having no franchise but that of corporate existence, applied for a writ of alternative mandamus to compel the production for inspection of books and papers, to enable bim to prepare a stockholders’ bill in equity in respect of certain alleged grievances. In answer to a rule to show cause, the defendants resisted the prayer of the petition on two grounds: 1. Because there was no right to this relief at law, but that the remedy was in equity. 2. Because if there was such right to relief at law, there were circumstances in this case, in view of which the relator was not entitled to the relief sought, which circumstances were fully stated in the affidavits filed March 7th, 1883, of David lieeves, the president of the Phoenix Iron Company, and of the other defendants. On March 21st, 1883, judgment was given for the defendants and the writ of mandamus was refused. The relator thereupon took a writ of error to the Supreme Court to July Term, 1883, No. 105, upon which the judgment of the Court below was reversed. A remittitur was taken and filed April 3d, 1884. This case is reported 9 Outerbridge, 111, where the facts set forth in the petition are given. Upon filing the remittitur a writ of alternative mandamus issued, reciting the complaint in the petition contained, commanding as follows: We, therefore, being willing that due and speedy justice should be done in this behalf, do command you, the said the Phoenix Iron Company, David Reeves, William H. Reeves, Carroll S. Tyson, John Griffen, George Gerry White, secretary and director, and James O. Pease, treasurer, firmly enjoining that forthwith you give to the said George H. Sellers, with his clerk or clerks, access to all of the books and papers of the said the Phoenix Iron Company, as he may require, in order to ascertain 1. What salaries are now and have been, during the last ten years, paid to the officers. 2. What compensation has been paid to its officers, as trustees of its real estate, and in other ways, if any, beyond their salaries. 3. What items constitute the indebtedness alleged to be due to the estate of the late David Reeves. 4. What sums have been divided between the Phoenix Iron Company, and Clark, Reeves & Co., under their contract. 5. What profits have been realized from the joint operations under these contracts. 6. What dispositions have been made of the entire receipts of the corporation. 7. What authority there was for the conveyance of the real estate of the company, made February 1st, 1875. And that all and singular the matters for the speedy performance of the foregoing, according to the exigencies of the law, you shall do and execute immediately, or in default thereof that you make known to us, in our said Court of Common Pleas, No. 2, for the city and county of Philadelphia, before the judges thereof, June 9th, A. D. 1884, why you have not done the same. On the return day, June 9th, 1884, the defendants made known why they did not give the relator, with his clerk or clerks, access to the books and papers of the Phoenix Iron Company, as he required. Their return was, inter alia, as follows: 1. The respondents insist that the right of such inspection or access wherever and to whatever extent it exists is personal, and cannot be exercised by agents of the relator. 2. That some time before the application for the rule to show cause why this mandamus should not issue, the relator filed a bill in equity in the Court of Common Pleas of the city and county of Philadelphia, No. 2, in which the said Phoenix Iron Company and David Reeves and others, president and directors of said company, were made defendants, seeking discovery and relief, and that said bill included all matters in respect of which he alleges he now intends to file a bill, for the preparation of which he seeks to obtain information by the inspection of the books and papers mentioned in this writ, saving and excepting those which show the debt due to David Reeves, deceased, by the Phoenix Iron Company, or relate to that debt. This bill was removed to the Circuit Court of the United States for the Eastern District of Pennsylvania, under the provisions of the Act of Congress. To this bill the Phoenix Iron Companj^ demurred, and after hearing counsel it was adjudged by the Court in which the cause was then pending, that the complainant, the present relator, was not entitled to the relief prayed, saving as to so much of the bill as prayed relief and discovery in aid of the relief on the ground of fraud. That the fraud alleged by the bill consisted in and arose out of the fact that the officers and directors of the corporation, and persons having the control of the corporation, were parties to a contract between the corporation and the firm of Clarke, Reeves & Co.- — -which is the same contract as is averred in the said writ to have been made between the same parties in 1870 — and were the same persons who, having the control of the corporation by virtue of holding a majority of the shares, determined the amount of salaries they themselves should receive. And the said bill, saving the relief and discovery founded on said fraud, was dismissed. And the respondents aver that the said decree, dismissing so much of the bill, remains in full force unreversed'and not appealed from. And the respondents further return, that after the making of the said decree the Phoenix Iron Company, a defendant in the said cause, filed an answer as to so much of the bill as had not been dismissed as aforesaid. That in and by said answer they answered the averments in the bill so búas it was retained and not dismissed, and set forth the facts relative to the making of the contract between the corporation and the firm, alleged to be fraudulent as to stockholders. And they also answered the averments of the bill relative to the ownership of shares and control of the corporation, by all persons who were partners in the firm of Clarke, Reeves & Co., and their interest and ownership pn that firm, and as to the salaries received by the owners of shares, and as to all dealings by them with the corporation, and as to the receipts of money by them from the corporation, and all other matters averred in the bill which the defendants were by the decree required to answer. And that after the filing of the answer of the corporation respondent in this cause, and the pleas of the other defendants in that cause, the complainant in that cause elected to dismiss his bill, and the same was dismissed without prejudice. 8. And the respondents further return that by the said decree of the said Court it was finally adjudged that the complainant in virtue of his right as a stockholder was not entitled to an account of the assets, liabilities, receipts, or disbursements of the Phoenix Iron Compan}', to ascertain what were the actual profits of the company. 4. These respondents further return that by the said proceedings the relator had, before the filing of the petition in this case, filed a bill and obtained a decree compelling discovery of all dealings .between the corporation and its officers, and the firm of Clarke, Reeves & Co., in which any officers or partners being stockholders of the corporation were interested, and that he had obtained a decree giving him a right to the same information as he now seeks to obtain by this writ, for the purpose of filing a bill for the same relief as he then sought. 5. And they further return that by the charter the management of the affairs of the Phoenix Iron Company and the discretion as to making dividends of profits, are committed to the board of directors, and that no right is by the charter or bylaws conferred on any stockholder to inspect the books or papers of the corporation, and by the by-laws of the company it is provided that the books of the company shall be open to the inspection of the president and any member of the board of directors. And it is provided by said by-laws that at the annual meeting of the stockholders the treasurer shall present a complete statement of his accounts for the year ending on the last day of March. And there is no other right given by the charter or by-laws to any stockholder to inspect the books’ or inquire into the affairs or management of the corporation. The relator, June 11th, 1885, demurred to this return, and after argument on the demurrer, the Court, October 17th, 1885, gave judgment for the relator. To the judgment of the Court for the relator on the demurrer, this writ of error was taken.
113 Pa. 574Reed v. Fidelity Insurance Trust & Safe Deposit Co. (1886)
4, of Philadelphia county: Of January Term 1885, No. 815. This was an action of assumpsit brought by Augustus Reed and Jane Elizabeth his wife, in right of said wife, John G. Apgar and Matilda his wife, in right of said wife, Howard W. Blackwell and P. P. Dunn, guardian of Mary A. Blackwell, against The Fidelity Insurance Trust and Safe Deposit Company, trustees for William Egner, Louisa Janney, Mary Ann Murcien, Eliza H. Cattell and Emma C. Egner, to recover the amount of a…
113 Pa. 579Smith's Appeal (1886)
282. This was an appeal by Marshall L. Smith from a decree of said Court perpetually enjoining him from engaging in the manufacture of ochre within the county of Lehigh, Pennsylvania. On January 30th, 1885, William Jenks Fell filed the following bill: 1.
113 Pa. 591Lebanon Mutual Insurance v. Hoover, Hughes & Co. (1886)
102. This was an action of covenant brought by E. C. Humes, George W. Hoover and W. V. Hughes, partners, trading as Hoover, Hughes & Co., against the Lebanon Mutual Insurance Company, to recover the amount of a lire insurance policy on the property of the plaintiffs destroyed by fire. Pleas, cove-nants performed, absque hoc.
113 Pa. 600Lehigh Valley Railroad v. Greiner (1886)
1. Where one negligently and without excuse places himself in a position of known danger and thereby suffers an injury at the hands of another, either wholly or partially by means of his own act, he cannot recover damages for the injury sustained. The contributory negligence which prevents recovery for an injury, however, must be such as cooperates in causing the injury, and without which the injury would not have happened. 2. The true test of contributory negligence is found in the affirmative of the question, Did the plaintiff’s negligence directly contribute, in any degree, to the production of the injury complained of? If it did, then there can be no recovery; if it did not, it is not to be considered. 3. An employe of a railroad company, while riding from his work on a train, composed of the engine, tender, and a gondola car, fitted up with plank seats, sat on the narrow platform in the rear end of the tender, with his legs and feet hanging over the edge. He had been warned that this was a dangerous place to ride, but gave no heed to it. While he was thus sitting an engine ran into the gondola, raised it up and pushed it forward, so that its bumpers struck him, and so injured him that he died. Meld, in an action on the ease by his widow and minor children, that they could not recover damages for his death, because he had been guilty of contributory negligence; and that the Court, upon request, should so have instructed the jury.
113 Pa. 610Lehigh Valley Railroad v. Brandtmaier (1886)
Error to the Court of Common Pleas of Luzerne county: Of January Term 1886, No. 392. This was an action of trespass on the case brought by Ludwig Brandtmaier against the Lehigh Valley Railroad Company to recover damages for injuries sustained by the alleged negligence of the defendant in running their ears at a public street crossing in White Haven whereby he was run into. Plea, not guilty. The following facts appeared on the trial before Rice, P. ,J. On -the evening of March 3d, 1886, about 8.45 o’clock the plaintiff attempted to cross the railroad track of the defendant with his horses and sleigh at Berwick street, in the town of White Haven, a town of about fourteen hundred inhabitants. He was struck by an engine and suffered serious injuries. There was much conflict of testimony as to the rate of speed of the train; the plaintiff’s witnesses testifying that the rate was from 15 to 25 miles per hour, while the defendants testified that it was from 8 to 10 miles per' hour. The plaintiff testified that before crossing the track he stopped, went upon the track, looked and listened and returned to his sleigh and immediately drove upon the track when he was struck by the defendants’ engine. The defendants offered testimony to show that his statement as to having stopped, looked and listened was not correct. There was also a conflict of testimony as to whether the defendant had given warning of the approaching train by ringing the bell or blowing the whistle. Berwick street crosses the railroad at right angles about 240 feet below the further end of the station at which the train was about to stop. The next street below Berwick, or on the other side from the station, is Northumberland. From Berwick to Northumbefland is 876 feet. From the crossing at the former there is an unobstructed view of 570 feet. The station for blowing the whistle, spoken of as thei Point of Rocks, is 1400 feet below Berwick street. The defendant presented, inter alia, the following points: 1. Under all the evidence in the case the plaintiff cannot recover. Answers — “I decline to so charge you.” (Sixth assignment of error.) 2. It was the duty of the plaintiff in approaching the railroad crossing to stop, look, and listen immediately before crossing, and as tlie view of trains coming northward was obstructed until the crossing was reached, it was bis duty to stop, look, and listen at the crossing, and if necessary to lead his horses over. Answer: — In one view of this language it is a correct statement of the law as applicable to the ease. In another view I have some doubt whether it would be the duty of the Court to hold it well taken. It is, of course, law that the plaintiff should have stopped, looked and listened immediately before crossing the track, and if he could not see up and down the track from any point upon the road before reaching the rails, it was his duty to go upon the track itself for this purpose, and look, and listen before attempting to drive bis team across. His failure to stop, look, and listen at a point where he could do all these things, would be negligence on bis part and would prevent his recovery. If, however, you believe that he left his team eighteen or twenty feet from the track and that he did go upon tlie track himself, and did look and listen for the approaching train, and that he went back to his sleigh after failing to see or hear any train approaching, I decline to charge you that as matter of law, it was Ms duty to stop, look and listen again or a second time, immediately before crossing the track. I do not wish to be understood as qualifying in any degree what I have said before, as to his imperative duty to stop, look and listen at a point from which lie could see and Jaear immediately before crossing the track. I leave it to you, however, to say whether or not ho did do this. (Seventh assignment of error.) In the general charge the Court instructed the jury, inter alia, as follows: The plaintiff supports his claim that the defendant failed to exercise ordinary care in the running of train No. 12 upon the night of March ¡3d, 1884, by two allegations. First, that the train was running at an improper and unusual rate of speed ; and second, that no notice of its approach was given either by the ringing of a bell or the blowing ofa whistle. First as to the rate of speed. You will remember the conflicting testimony as to the point, and will bear in mind in considering the estimates of witnesses not only the reliability of the witnesses themselves, but also their means of knowledge and relative intelligence. The engineer, fireman, and other witnesses for the defence swear that the train was not running over eight or ten miles an hour, while other witnesses for the plantiff put the speed as high as fifteen, twenty or even twenty-five miles an hour. You must weigh the testimony and judge for yourselves, which is most likely to be correct. In this connection you will consider the point at which the train stopped after the accident, T mean the distance from Berwick street, which' the train ran after the accident. When you have ascertained what the rate of speed was, you will then consider whether it was an unreasonable rate. There is no fixed rule which can guide you here. The duty of a R. R. Co. as to the speed of its tz’ains of course varies with the locality. What would be safe at one point would be imprudent at another. What might be a pezfectly proper speed at a crossing of a country road would be highly improper in crossing the streets of a town or village. The duty of cai’e in the rate is also affected by other considerations. [Was the crossing so guarded as to make a high rate of speed safe ? If a crossing is guarded either by a flagman or by a gate, it might be that a very high rate of speed would be comparatively safe. (Second assignment of error.) You will also consider the character of the highway itself; its location in the town of White Haven, and the amount of its use by the citizens as compared with other streets. When you have determined the rate of speed, you will then consider whether any notice of the approach of the train was given. There can be no question, and it is not disputed by the defendant, that there is an imperative duty upon them to warn the public of the approach of their trains at this crossing. The duty znay not perhaps be so imperative when a road crosses their tracks in the open country, but in village or town there is no dispute upon the point, especially where, as in this case, the view up and down the track is obstructed by buildings until within a short distance from the rails. You will consider, therefore, whether upon the night of this accident a proper notice of the approach of this train was given. [Was a whistle blown? and was a bell rung? If so, was this done properly. There is a conflict of testimony upon this point and you must decide, bearing in mind what I said before upon the means of observation of the various witnesses, and the comparative weight to be given their testimony.] (First assignment of error.) Some of the plaintiff’s witnesses testified positively that no whistle was blown or bell rung; others, that they did not bear it; and on the other hand you will recollect the testimony of the defendant’s witnesses, who told you they heard both the whistle blown and the bell rung. [In case you should bo of the opinion that the defendant bad exercised every care in guarding this crossing, or of giving proper warning to travellers of the approach of its trains, and that the accident which resulted to the plaintiff could not have been prevented by any act of the defendants, then, of course, that would be an end of this case.] (Third assignment of error.) If, however, you should be of the opinion that the accident was due to the negligence of the defendant, then you will also consider whether the plaintiff contributed to it by any want of care on his part. Because the rule of law is well settled, that if the plaintiff was guilty of any contributory negligence, he cannot recover even if the defendant was also guilty; the law cannot determine whose fault was the greater. There is an imperative duty upon all travellers to stop, look and listen before attempting to cross a railroad, and this duty becomes greater and more imperative wherever a crossing is dangerous, or a view of the track is obstructed. You will recollect the testimony of the plaintiff himself in describing the occurrences immediately before the accident. According to bis statement, after attending to his business in the village, he walked up Berwick street, followed by his team, toward the railroad. His man was driving the sleigh and stopped about eighteen or twenty feet from the track, while Mr. Brandtmaier walked on to the track, looked up and down, and not seeing or hearing any train, he came back to his sleigh, got in, and was driven up to the track, and was struck by the approaching train. The driver and horses were killed, and he was injured in the manner described to you. [The defendant alleges that he failed to do all that be says he did, and has introduced witnesses who have related to you circumstances which the defendant claims are inconsistent with such action on the part of the plaintiff. You will consider the credibility of these witnesses, and also whether the circumstances they relate were inconsistent with what the plaintiff swears he did. These are all pure questions of fact, and must be determined solety by you.] (Fifth assignment of error.) In case you find the defendant guilty of negligence, and also that the plaintiff did not take proper precautions to ensure his safety, then, as I have told you, he cannot .ask for compensation for his injuries from the defendant. In case you find that the defendant failed in its duty, as I have pointed it out to 3on, and also that the plaintiff did all that a prudent man should have done, then the plaintiff is entitled to a verdict.] (Fourth assignment of error.) If you find in favor of plaintiff, he is entitled to compensation for the damages done to his property, and also the cost of medical attendance and nurses. Verdict for the plaintiff in the sum of $6,000 and judgment thereon, whereupon the defendant took this writ, assigning for error the answer of the Court to defendant’s points, and those portions of the general charge included within brackets.
113 Pa. 621Koon's Appeal (1886)
1. Interest upon a legacy begins to run from the time it becomes payable; and in determining this time, the directions of the Act of February 24th, 1834, P. L., 83, which provides that, “ legacies, if no time be limited for the payment thereof, shall in all cases be deemed to be due and payable at the expiration of one year from the death of the testator,” must prevail unless there be language or circumstances apparent upon the face of the will, showing that the testator could not have intended the legacy to be payable at the end of the year. 2 Tn 1853, by a deed of trust, A. transferred to B. a lot of stocks, the income from which under said deed was payable to him during his life by 15., and after his death, in payment of certain annuities; the trust to continue until the death of the last annuitant. A. died testate, in 1858. In his will, he disposed of iris estate, inter alia, as follows : An annuity to his wife, a legacy of $4000 to O., and a legacy of $10,000 to D., a charitable institution. Ho directed that the remainder of his estate, including any balance, resulting from the closing of said trust deed, to be paid to his executors, for the purposes expressed in Ms will, and the remainder by them to be divided among his children. The last annuitant under the trust deed died in 1884. Held on distribution of the estate of A., in the hands of his administrator, that D. was entitled to interest on the $30,000 legacy, from one year after the death of A., the testator, until the time of its payment.
113 Pa. 631Manderson's Appeal (1886)
One nlio, at tlie instance of a trustee, having power to employ him, lias rendered necessary and beneficial service to tho trust estate — in this ease an attorney at law defended a trust estate from illegal claims — is entitled to be compensated out of that branch of tho trust estate, for the special benefit of which tho services were rendered, though the trustee who employed him afterwards proves to be a defaulter, and absconds without paying him.
113 Pa. 635Penn Iron Co. v. Diller (1886)
408. This was an action of covenant brought by Franklin Diller for the use of Rosanna Stehman, against the Penn Iron Co. Limited. Pleas, covenants performed absque hoc.
113 Pa. 642McGrew v. Foster (1886)
Error to the Court of Common Pleas of Warren county; Of January Term 1885, No. 471. This was an action of trespass brought June 12th, 1883, by A. J. Foster against James McGrew, W. Rogers, James Kent, James Travis, Daniel Crandall and Smith Brown for breaking and entering the plaintiffs close, and cutting, carrying away, and converting his timber trees, wherein he sought to recover double the value of the trees cut down, and treble the value of those converted to the use of the defendants, under the Act of 29th March, 1824. Plea, not guilty. The timber was cut and carried away by James McGrew in June 1883. The other defendants were bis employes in cutting the timber. The facts as they appeared on the trial before Brown, P. J., are sufficiently given in the opinion of the Supreme Court. The Court directed the jury to find for the plaintiff'. By agreement of parties the damages were fixed at $116, single damages. Verdict for the plaintiff in the sum of $116, and judgment thereon, whereupon the defendants took this writ and assigned for error the direction of the jury to find for the plaintiff.