118 Pa.

Volume 118 — Pennsylvania State Reports

74 opinions

118 Pa. 1Com'rs of Rouse Estate v. Poor Directors (1888)
No. 15 January Term 1887, Sup. Ct. On March 28, 1886, it was agreed by and between the directors of the poor of Crawford comity, plaintiffs, and the commissioners of the Rouse estate, and the road commissioners of Eldred township, Warren county, defendants, that the following case be stated for the opinion of the court, in the nature of a special verdict : Lillie Allen, aged about eighteen years, had a legal settlement in Eldred township, Warren county, in the year 1885, and…
118 Pa. 6Erie City Iron Works v. Barber (1888)
ERROR TO THE COURT OE COMMON PLEAS OP PHILADELPHIA COUNTY. No. 259 January Term 1886, Sup. Ct.; court below, No. 18 December Term 1887, C. P. On November 8, 1877, an action in case was brought by P. M. Barber and A. B. Henderson, partners as P. M. Barber & Co., against the Erie City Iron Works. A narr. was filed on December 3, 1877, with three counts. The first count set out that the plaintiffs owned and operated a steam lumber mill in Lycoming county, and the defendant company at Philadelphia were manufacturers and dealers in steam engines, boilers, etc.; that on February 18, 1874, the plaintiffs employed the defendants to construct for them a horizontal tubular boiler of three eighths inch thick flange iron for said mill for the sum of $1,300; that the boiler constructed and set up in the plaintiffs’ mill “was carelessly, negligently and improperly made of an inferior quality of iron, to wit, C. H. iron, and not of flange iron,” and that “ by reason of the premises and of the said boiler being carelessly and negligently and improperly made and constructed of poor, inferior and worthless iron, the said boiler exploded, whereby the said boiler was utterly destroyed and made useless, and the said lumber mill of said plaintiffs, and the materials, lumber, steam engine and machinery therein ” were destroyed. The second count averred that the boiler was to be “ a tubular boiler, shell of flange iron, three eighths inch thick, head one half inch thick, of best flange iron, straight seams, double riveted, the whole boiler to be well stayed and well made; ” that the boiler constructed and set up “ was carelessly, negligently and improperly made of O. H. iron of an inferior quality, and of less than three eighths of air inch in thickness, and not of flange iron; ” following substantially the first count in other respects. The third count averred that the boiler was to be as described in the second count; that the defendants “made a ■certain boiler, which said boiler was made and represented to be made of C. H. iron, and not of flange iron,” and that the defendants “ falsely and maliciously represented to said plaintiffs that the said boiler so made and constructed and delivered was in every respect as good as the boiler so ordered, as aforesaid, and would safely carry 120 lbs. of steam, and that the only difference between the said boilers was in a name ; ” that the plaintiffs, relying upon the said representations, set up the said boiler in their mill; that the said boiler “was carelessly, negligently and improperly made of poor, inferior and worthless iron, and of less than three eighths of an inch thick, and not as warranted and represented by the said defendant,” and that by reason of the premises, etc. To this narr. the defendants pleaded not guilty, on September 24, 1880. On January 10, 1882, a jury was called, and, eo die, the plaintiffs moved for leave to amend the several counts of the narr. in substance as follows: First count. That defendants were manufacturers of boilers, and were desirous that plaintiffs should purchase one made by them, and thereupon represented to them that it was a good and safe boiler, and fit and proper to be used and could be used with safety; that said boiler was equal in .quality to a boiler made of, to-wit: flange iron; that plaintiffs thereon purchased said boiler upon terms that it could be safely used in their lumber mill; breach, that defendants negligently and improperly conducted themselves in selling, preparing and manufacturing said boiler; that it was dangerous, defective, and wholly unfit and unsafe to use, and afterwards exploded, etc. Second count. That defendants being desirous plaintiffs, should purchase a boiler of their manufacture, “fraudulently, falsely and deceitfully stated that said boiler was safe and fit for use, and was of as good quality as a boiler made of, to-wit: flange iron; that plaintiffs, believing this, purchased said boiler and placed it in their mill; that said boiler was greatly inferior to one made of flange iron, and was totally unfit and unsafe for use, as defendants knew, and said boiler did, by reason of the premises, explode, etc. Third count. That defendants, the manufacturers, being desirous that plaintiffs should purchase one of their boilers for use in plaintiffs’ mill, in consideration of said purchase warranted said boiler “ to be equal to, to-wit: flange iron, and to be entirely fit and safe for use; ” that plaintiffs, relying on said warranty, purchased said boiler for use in- said mill; but defendants were guilty of a breach of duty, deceit and negligence in so as aforesaid warranting said boiler, because said boiler was, on the contrary, not equal to flange iron, and was entirely unsafe and unfit for use, of which defendants had notice; that plaintiffs, confiding in said warranty, used said boiler hi their mill, where said boiler, by reason of the premises, exploded, etc. The defendants objected to the allowance of the amendments, ,(1) because they set forth a different cause of action from that counted on in the original narr.; and (2) that the statute of limitations had run against the cause of action set forth in the amendments. The court, Allison, P. J., allowed the amendments.1 The defendants, then, by leave of court pleaded, causa actionis non accrevit infra sex annos. The trial resulted in a verdict for the plaintiffs for §8,440. A judgment entered upon this verdict was reversed by this court: Erie City Iron Works v. Barber, 102 Pa. 156. The record having been remitted, on April 11, 1888, on motion of plaintiffs’ attorneys, leave was granted to amend the pleadings as follows: By inserting in the third amended count, after the word “defendants,” and before the word “warranted,” the words “ falsely and fraudulently.” And by inserting before the word “warranty,” and after the word “said,” the words “false and fraudulent.” And by inserting after the words “ had then and there notice,” the words “ and well knew at the time of making the said warranty.” At a second trial on April 18,1883, before Peibce, J., there was a verdict for the plaintiffs for §8,038. The judgment entered .upon this verdict was subsequently reversed in this court: Erie City Iron Works v. Barber, 106 Pa. 126. At a third trial on November 13, 1885, P. M. Barber, a plaintiff, testified, inter aha, that the boiler ordered having arrived he had an interview with Mr. Selden, the president of the defendant company, when the latter said they had not made the boiler they agreed to make, and had sent him one of C. H. iron instead of flange iron: “I said, if the boiler we had at our place was as good as the one described in the Heathcote proposition, I would take it; if it was as good as the boiler we were to have. He said it was as good a boiler. .... He said it would carry 120 lbs. of steam.....He said he would guarantee tins boiler equal in every respect to the one I was to have.” Mr. Selden, in behalf of defendants, testified, inter alia: “ Q. When did you first know of the Heathcote proposition? A. I never heard of it until after the explosion occurred.” Afterwards, the defendant company put in evidence a letter from their agent, Mr. Shearman, written before the boiler was ordered, stating to Selden that they must get below Heathcote’s proposition to sell the boiler at all. Mr. Selden, referring to the interview with Mr. Barber, further testified: “ I furthermore said to him that I considered C. H. No. 1 iron fully as good in the shell of a boiler of that kind as flange iron and in some respects better..... I said materially that it was as good for the purpose as flange iron.” On cross-examination: “Q. Have you no reason why C. H. No. 1 should be more suitable in boilers fired the other way, fire in contact with shell? A. Yes, I do know one reason — I know C. H. iron is a lower grade of iron; it should be a stronger boiler, fired as P. M. Barber & Co.’s was.....Q. I ask you whether, in your judgment, C. H. No. 1 iron is the proper iron to use in the construction of a boiler to be used next the fire ? A. I can only answer that by saying that there is a great difference of opinion. I did not say it. I do not think it ought to be used ordinarily.” In the reports of this cause hereinbefore referred to, the facts are more fully stated. The court, Biddle, J., charged the jury and answered the defendant’s points as follows: It is contended by the plaintiffs in this case that they bought a suitable boiler, which, after having been put in the place for which it was intended, in consequence of its defective material and construction, exploded, doing them great damage, for which they ask damages at your hands against the Erie City Iron Works. That the contract was made with Mr. Shearman is not denied. Whether he made that contract for himself or for the Erie City Iron Works is not of the slightest importance in this case. This boiler was sent to the plaintiffs, and they heard that it was not what they ordered and refused to receive it. Mr. Selden, the president of the Erie City Iron Works, who made the boiler, then had an interview with Mr. Barber, one of the plaintiffs, and admitted that it was not made in accordance with the order sent to them, yet he made certain representations to Mr. Barber which induced his firm to accept the boiler. These representations it is contended were untrue, and it is for this deceit that this action is brought. In order to make the president liable for a false representar tion it is not absolutely necessary to show that he knew as a fact what he stated was false; if he made a representation not knowing it to be true or without reasonable or probable grounds on which to suppose it .to be true, he acted fraudulently. When a man having no knowledge whatever on a subject, takes it upon himself to represent' a certain state of facts as existing, he does so at his peril; and if it be done either to secure some benefit to himself or to deceive another he is guilty of fraud. By assuming to have knowledge of a material fact when he is conscious he has not, and representing it as of his own knowledge when he has,no knowledge, he commits a moral wrong similar in character as if he knew the representation to be untrue. The fraudulent purpose is essential in an action for deceit and it cannot be maintained on a false representation believed to be true which is based on adequate information. That Mr. Selden, the president of the company, represented that C. H. No. 1 iron was fully equal to flange for the purpose for which it was intended, to be put in the shell of a boiler, is not denied. On the contrary it is contended by the company that the .statement is true. The testimony, however, is conflicting as to that, and you must decide- whether it is true or not. If it was true the plaintiff has no cause to complain on that point. If you find it was not true, then if Mr. Selden knew it was false, or if he asserted it recklessly not knowing it to be true and without reasonable ground to suppose it was, in order to induce the plaintiff to accept it, he would be guilty of fraud. The plaintiffs also contend that Mr. Barber required of Mr. Selden, at the time Mr. Selden made the representation to him, that the boiler was to be as good as that described in the Heath-cote contract, which called for three eighths inch iron, and that he said to Mr. Selden if it was as good as described in the Heathcote contract I shall be satisfied. Mr. Selden’s representation, the plaintiffs therefore contend, applied to the thickness of the iron as well as to the question of flange and C. H. No. 1 iron. This Mr. Selden denies. He says he referred only to the stub order, which it appears does not refer to the thickness of the iron. You will therefore have to determine whether the representation of Mr. Selden referred to that point, the thickness of the iron, or not. If he did refer to that point and knew it was false, or recklessly asserted it not knowing it to be true, and without reasonable ground, he would be guilty of fraud. If then you find that the iron in this boiler was bad, or that the boiler was defectively constructed, and that that was the cause of the accident, and if Mr. Selden knew that his statements were false, or not knowing them to be true, without reasonable or probable ground, asserted them to be true and they turned out to be false, and that on the faith of such representations the plaintiff accepted the boiler and thereby suffered the injury complained of, your verdict should be for the plaintiff. If you should find that these matters have not been established, your verdict should be for the defendant. If you should find for the plaintiff, the question as to the amount of damages is to be considered. You must recollect they must be what the law calls compensatory only; not speculative or vindictive; that is, not intended to punish the defendants. The true measure is the amount of money required to put the mill and machinery including the boiler in as good condition as they were before the explosion. You can also add the rental value of the mill during necessary time for making repairs. Defendants’ points: 1. There can be no recovery on any warranty or contract express or implied between the parties. Answer: Affirmed. 2. The only ground of recovery is fraud in the statements made by Selden at his interview with Barber. Answer: Affirmed. 3. That is, the plaintiffs to recover must satisfy the jury that Selden did not believe the statements he made to Barber were true, but intended to deceive him. Answer: Affirmed. 4. The defendants are not liable even if the materials were defective, and if' C. H. No. 1 is not equal to flange, if Selden honestly believed them to be sufficient and good merchantable iron for the purpose of being used as a boiler, and that C. H. No. 1 was equal to flange for the shell. Answer: Affirmed. 5. The fact that Shearman may have known that the plaintiffs intended the boiler to be three eighths thick, or that it was to bear a pressure of 120 pounds, is perfectly immaterial as to the claim for deceit or fraud, even if he was the defendants’ agent, unless he communicated these facts to the defendants, and they were known by Selden, at the time the representations were made, which induced the-acceptance of the boiler. Answer: Affirmed. . 6. There being a written contract for the making of the boiler between the plaintiffs and Shearman, there is no evidence which warrants the jury in finding that the original contract was in fact made with the defendants. Answer: Affirmed. 7. There is nothing in the case to warrant the inference that Selden knew that he was ignorant on the subject he spoke about, so that he can be said to have spoken about a fact of which h'e knew nothing. Answer: Refused.7 8. There is no statement Selden is said to have made, which is material, other than that relating to the difference or want of difference between flange and'C. H. No. 1, in the construction of the shell of the boiler and of the relative goodness of the boiler delivered to that ordered, and he must be assumed to be speaking of the kind of boiler he knew had been ordered, and not of another kind ordered of the agent, if a different kind was in fact ordered from the agent. Answer: Refused.8 The verdict of the jury was in favor of the plaintiffs for 110,415.44. A motion in arrest of judgment having been refused and judgment entered on the verdict, the defendant company took tins writ, assigning for error: 1-6. The allowance of the said amendments.1 7, 8. The answers to the defendant’s points.7 8
118 Pa. 20Appeal of Ranninger (1888)
FROM THE DECREE OF THE ORPHANS’ COURT OF LANCASTER COUNTY. No. 52 July Term 1887, Sup. Ct. The accounts of Henry M. Shreiner, executor of the will of Philip Christian Ranninger, deceased, showed a balance for distribution of $13,026.87. The will directed the payment of the testator’s debts and funeral expenses, and, so far as material to this case, provided: Item.
118 Pa. 25Sager v. Lindsey (1888)
ERROR TO THE COURT OF COMMON PLEAS OF WARREN COUNTY. No. 455 January Term 1886, Sup. Ct.; court below, No. 74 December Term 1884, C. P. The action below was a scire facias sur mortgage, W. M. Lindsey, administrator d. b. n. of George A. Cobbam, deceased, and S. P. Johnson, for the use of S. P. Johnson, against John Sager and Elizabeth Sager, begun on October 18, 1884. The defendants pleaded payment, payment with leave, etc. At the trial, on December 18, 1885, before Brown, P. J., the plea of set-off was added. The plaintiff then put in evidence the mortgage of John Sager and Elizabeth, his wife, dated May 11, 1878, to W. M. Lindsey, administrator d. b. n. of George A. Cobham, deceased, and S. P. Johnson, for the sum of $110.78, payable to said administrator, and $184,26, payable to Mr. Johnson; with an assignment of the interest of W. M. Lindsey to Mr. Johnson, dated September 11, 1878. On the part of the defendants it was then shown that Mrs. Sager was a daughter of George A. Cobham, deceased; that no money was received when the mortgage was given; that the mortgage was executed and delivered to Mr. Johnson, who represented at the time that, of the consideration, $110.78 was a sum due to W. M. Lindsey as administrator of George A. Cobham, and of the remainder $84.26 was due to Mr. Johnson for professional services rendered to Lindsey as such administrator, and $100 for like services rendered to John Sager in proceedings in bankruptcy. Claiming that they were never justly chargeable with the two items, $110.78 and $84.26, the defendants then made the following offers: Defendants offer to prove that W. M. Lindsey, in whose favor as the administrator de bonis non of George A. Cobham, deceased, $110.78 of the mortgage in suit was taken, never was the administrator de bonis non of George A. Cobham, deceased ; that his appointment as such administrator de bonis non was without jurisdiction and void, and that consequently nothing could be due him in that capacity. Objected to as incompetent. The court: Inasmuch as- defendants do not propose to show that letters of administration were not issued to W. M. Lindsey, the objection is sustained and testimony rejected.1 Defendants offer to prove that W. M. Lindsey, in whose favor as administrator de bonis non of George A. Cobham, deceased, $110.78 of the mortgage in suit was taken, never was the legal administrator de bonis non of George A. Cobham, deceased; that his appointment as such administrator de bonis non was without jurisdiction and void; and that by means of this character he was enabled to induce, and did induce, these defendants to execute the mortgage, they being ignorant of the law and of the fact that his appointment was void, when there was nothing due him from the defendants. Objected to as incompetent. The court: Not proposing to show any fraud perpetrated by Mr. Lindsey in procuring the mortgage to be executed, and not proposing to show, either, that the defendants did not know that letters had in fact been granted, or that the mortgage was without consideration, the- objection is sustained and testimony rejected.2 Defendants offer to prove that W. M. Lindsey was not the legal administrator of George A. Cobham, and that the sum of $110.78, claimed in this case, is for his services as administrator, de son tort, of the estate of George A. Cobham, deceased, for which he is not entitled to recover. Objected to as incompetent and irrelevant. The court: Not proposing to show that defendants were ignorant of the facts and circumstances under which Mr. Lindsey was assuming to act as administrator at the time of the giving of the mortgage, the objection is sustained and testimony rejected.3 Defendants offer to prove that of the amount of the said mortgage given to secure S. P. Johnson in the sum of $184 the sum of $84 was given to secure S. P. Johnson in payment for services by him rendered in conducting, prosecuting and carrying on an unlawful administration of the estate of George A. Cobham, deceased; and that the $84 put into the said mortgage, on account of said unlawful services, was founded upon an unlawful consideration, the amount of which cannot be recovered in this action; also that the defendants executed the mortgage in ignorance of the unlawful character of the said claim. Objected to as incompetent. The court: Inasmuch as there is no offer to show ignorance of the facts connected with the transaction, the objection is sustained.4 Defendants offer in evidence the record of the final account of W. M. Lindsey, showing the amount of assets with which he charges himself, and the amount of indebtedness which he paid and the vouchers he filed, -for the purpose of showing the amount of the indebtedness and assets; and for the purpose of showing that no amount fell to Elizabeth Sager’s lot to pay. That there was nothing due for Elizabeth Sager to pay. Also that Judge Johnson was the attorney who directed the affairs of the administration. Objected to as incompetent and irrelevant. The court: Judge Johnson not being a party to the administration account, the objection is sustained.5 These offers being excluded, the jury rendered a verdict for the plaintiffs for $429.62, the amount claimed on the mortgage. Judgment being entered, the defendants took this writ assigning as error: 1-5. The refusal of the defendants’ offers.1 to 5
118 Pa. 30Sankey v. Hawley (1888)
ERROR TO THE COURT OE COMMON PLEAS OE PERRY COUNTY. No. 314 January Term 1887, Sup. Ct.; court below, No. 24 April Term 1886, C. P. On February 24, 1886, an action of ejectment was begun in the court below by Joseph M. Hawley against Jacob Sankey and Samuel K. Sankey, trading as Jacob Sankey & Son, for the recovery of a planing mill and appurtenances in Penn township. The plea was not guilty. At the trial, on January 21,1887, before Charles A. Barnett, P. J., the facts appeared that on December 17, 1883, Samuel K. Sankey, then the owner of the property in dispute, conveyed the same by an absolute deed in fee to Joseph M. Hawley, for the purpose of securing a loan from the latter of $4,000, taking a separate defeasance of the same date. At the end of two years, Samuel K. Sankey had repaid to Joseph M. Hawley about $1,000 upon his loan, and having become involved, he then conveyed the property to his father, Jacob San-key, to protect the latter upoii indorsements made for him. The father and son, under the name of Jacob Sankey & Son, were in possession of the premises when suit was brought. The plaintiff’s counsel offered the deed of Samuel ■ Sankey and Minerva Sankey, his wife, to Joseph Hawley, dated September 17,1886, for a tract of land described in the praecipe. This offered for the purpose of showing title as between the parties to this suit. Defendants’ counsel object for the reason that on December 17, 1883, and contemporaneously with the execution of the said deed, and as a part thereof, there was executed between the parties a defeasance in writing, which, stating as it does, a contract between the parties, must be offered with the deed; that the deed represents but a portion of the contract and the plaintiff must offer the whole contract between the parties. Plaintiff’s counsel deny that there is any such thing. Defendants’ counsel further object, for the reason that the defendants now bring the defeasance into court and make tender of the same to the plaintiff and request him to read it as part of his offer, and on refusal to read the same he cannot read the deed, as it constitutes but a portion of the contract. By the court: The defeasance, being denied, is matter of defence. The deed offered in evidence would be a legitimate offer, and at this stage of the proceedings we think the objection must be overruled.1 The possession by the defendants of the property in dispute being admitted, the plaintiff rested. The defendants then proved the signatures and offered in evidence the following paper: Duncannon, Pa., December 17,1883. This is to certify that S. K. Sankey and wife have this day deeded me their property, (see deed book Q, vol. 2, page 634, etc., New Bloomfield, Pa.,) for the purpose of securing the loan of four thousand dollars, and I hereby agree to deed the above property back to S. K. Sankey, in fee simple, with all the improvements thereon erected, upon the payment of the four thousand dollars, above referred to. Redeemable within two years. Joseph M. Hawley. Witness : William Bothwell. To be followed with proof that the four thousand dollars mentioned in the deed and the four thousand dollars mentioned in the said paper are identical and the same. And this for the purpose of creating a defeasance to the deed offered by the plaintiff constituting the same a mortgage and making the said paper a part thereof of said deed. Plaintiff’s counsel objects: Because the defeasance, although in writing, has not been acknowledged and recorded within sixty days from the execution thereof, as provided in the act of June 8, 1881, P. L. 84, which declares: “ Be it enacted, that no defeasance to any deed for real estate regular and absolute upon its face, made after the passage of this act, shall have the effect of reducing it to a mortgage, unless the said defeasance is made at the time the deed is made and is in writing, signed, sealed, acknowledged and delivered by the grantee in the deed to the grantor, and is recorded in the office for the recording of deeds and mortgages in the county wherein the said lands are situated, within sixty days from the execution thereof; and such defeasances shall be recorded and indexed as mortgages by the recorder.” By the court: We think the objection is well taken and must be sustained.2 Under the direction of the court,3 the jury rendered a verdict for the plaintiff. Judgment being entered, the defendants took this writ assigning for error: 1. The admission of plaintiff’s offer.1 2. The refusal of defendants’ offer.2 8. The direction to find for the plaintiff.3
118 Pa. 37Appeal of Wineland (1888)
EROM THE DECREE OE THE ORPHANS’ COURT OE WESTMORELAND COUNTY. No. 54 October Term 1887, Sup.
118 Pa. 42Foster v. Weaver (1888)
error to the court or common pleas or rorest county. No. 219 October Term 1887, Sup. Ct.; court below, No. 37 September Term 1887, C. P. The cause below was in trespass by Josiah Weaver against Jacob Foster and L. Simon, instituted on August 10, 1887, and on August 16, 1887, by agreement of parties referred to Mr. L. W. Wilcox, as referee, under the act of May 14, 1874, P. L. 166. The findings of fact reported by the referee were as follows: The plaintiff and defendants became tenants in common in an oil lease for 50 acres of land in Harmony township, dated November 1,1884, at one eighth royalty, for a term of 20 years, each owning a one third interest. By the lease, a well was to be completed within six months and a second well commenced within six months from completion of the first, if productive, and operations to be carried on diligently and to the best interests of both parties to the lease. In 1885 the lessees began operating for oil under this lease. The plaintiff lived in New York and the defendants were oil operators and had charge of the drilling. About the middle of March, 1885, an oil bearing sand rock was found and oil in paying quantities and the prospects were favorable for a good well. The defendants ordered the well shut down and drilling stopped, and the well was reported to those inquiring to be a failure. About six weeks after this, one of the drillers named Nolan, at the suggestion of the defendants, went to New York to purchase plaintiff’s one third interest, and reported to him that the well was a failure and the prospects for oil were poor. Nolan succeeded in getting the plaintiff’s interest for $500, which was less than the plaintiff had paid out, and a conveyance was made to him dated May 11, 1885. In a few days Nolan conveyed the same interest to the defendants for $6.00. The purchase by Nolan was in reality for defendants, who obtained other lands and leases adjoining by purchase and by lease, and in the early part of June began pumping oil from the well already drilled, which proved to be a good well. During this year and after they had acquired plaintiff’s inter-, est, the defendants drilled another well on this lease, which also proved to be a good well. Early in 1886, the plaintiff hearing of the oil developments and learning that defendants were the owners of his interest, went to them and, tendering the $500 paid him by Nolan, demanded a reconveyance of his third interest and his share of all the oil produced, which was refused. During the year following, the defendants drilled other wells, which proved even more productive. Some efforts were made by the plaintiff and defendants to come to some agreement. The defendants offered to reconvey to plaintiff and pay his share of oil if he would pay his share of all the expenses of operating, and also one third of the balance due on a leasehold mortgage they had given on this and other leases of defendants, the plaintiff’s share of which would amount to about $200. This the plaintiff refused to do, and in April, 1887, he had the defendants and Nolan arrested for conspiracy and was about to bring an action of ejectment or suit in equity, when it' was finally agreed that the plaintiff should pay defendants what they had paid Nolan and they should reconvey to him his one third interest; and the right of defendants to deduct one third of the expenses and costs of production from the proceeds of plaintiff’s one third of the oil already produced was left unsettled and to be determined according to the rights and equities of the parties in some form of action, the same as if the plaintiff had recovered possession by adversary proceedings. This arrangement and the reconveyance to plaintiff of his interest was made on the 4th day of June, 1887, and for his share of the oil up to that date this suit was brought. The sales made by defendants to the pipe line company were taken as giving the correct price of the oil. The proceeds of the one third of the oil up to June 4, 1887, was $4,596.41, and the one third of the costs and expenses of operating, including carpenters, rigs, boilers, engines, casing, tubing, tanks, torpedoes, expenses pumping, superintending, etc., amounted to $4,874.92; the expenses exceeding the receipts from oil. Upon the foregoing facts, the referee answered the points presented and found as matter of law as follows : The plaintiff’s points: 1. The plaintiff cannot be made the debtor to the defendants for any share of the expenses incurred without his consent, in operating for oil on the lease while deprived of his rightful possession thereof; nor can his share of the oil produced during that time be made subject to any lien or charge for such expenses without his knowledge or consent, expressed or implied. Answer: Affirmed.1 2. Where possession of land is obtained from the owner tortiously or by fraud, no change in the character or condition of any mineral or property taken therefrom by the trespasser or wrongdoer, can defeat the right of the real owner to recover it or its value. Answer: Affirmed.8 3. That in such an action as this to recover the value of mineral taken from the land by one who obtained possession tortiously or fraudulently, no expense or cost incurred by such wrongdoer in severing the mineral from the land, can be allowed to be recouped from such value, whether the action be at law or in equity, or against strangers, or between tenants in common. Answer: Affirmed.3 The defendants’ points: 2. The property in controversy being a leasehold estate in oil lands taken jointly by the parties for mining purposes, and operations having been commenced while plaintiff held his interest therein, a mining partnership between them was created, and the subsequent operations conducted while plaintiff was out of possession, were simply carrying out the original design and in pursuance of the terms of the lease, and to that extent expenses in such operations were incurred under an implied agreement on part of the plaintiff to pay his share of the same. Answer: This point assumes that the operations were carried on by defendants in obedience to the terms of the lease; but, even if so, it is difficult to see how this would change the character of their possession. If the plaintiff had been as well informed as they in regard to the prospects for oil and had upon request refused to join with them in carrying on operations, there would be some force in this point,' but as stated and understood it is refused.4 3. That in such an action as this between tenants in common the defendants being in possession with a right to mine their own two thirds share of the oil and bring it to the surface, were not in such a sense wilful trespassers or wrongdoers as to be liable to the rule as to a tortious possession taken by a stranger, but are only guilty of an involuntary trespass against the plaintiff, and therefore have a right to deduct from the plaintiff’s share of the oil which was brought to the surface, or its proceeds, his share of the reasonable expense of its production. Answer: This third point is likewise refused. There does not seem in the books to be such a distinction between the tortious or fraudulent possession taken by a tenant in common and that of a' stranger, as is assumed in this point, and no reason for any, at least in favor of a tenant in common, occurs to the mind of the referee.5 The question for determination in this case as represented in the several points is: 1. When the owner of land has been deprived of the possession tortiously or by fraud and after recovery brings suit for mineral taken from the land by a trespasser while in wrongful possession and converted to his own use, is the plaintiff entitled to, as damages, the value of the mineral so taken in its place in the earth, or the value in its changed and improved condition as a chattel; i. e., is the wrongdoer entitled in such suit to recoup from the value of the mineral as a chattel the cost and expense of mining or producing it? 2. Does it make any difference in the determination of the question that the plaintiff, previous to his ouster, was a tenant in common with defendants ? As relevant to this case the first question in brief, is this: Is the plaintiff entitled to recover the value of the oil in tank without deduction for expenses of production? The most direct authority upon the first question which relates to the measure of damages is Lyon v. Gormley, 58 Pa. 261. In that case the defendant, in constructing a railroad through plaintiff’s land, excavated coal which, supposing it to be his, he sold. In an action of trover the jury found for plaintiff the value of the coal in place $171.70, and also at the pit’s mouth $961.12 ; and the court below, reserving the question as to defendant’s liability, afterwards entered judgment in favor of the defendant on the reserved question. In the Supreme Court this judgment was reversed and judgment directed to be entered for plaintiff for the enhanced value of the coal as a chattel. There are cases in which trespassers have been allowed the expenses of mining in actions of trespass for mesne profits, after a recovery of ejectment, but in each and all of them it is only a bona fide occupant under color of title or an innocent or inadvertent trespasser who is so favored. The leading case of this kind is Morrison v. Robinson, 32 Pa. 456, in which both in the court below and in the Supreme Court, especial care seems to have been taken to limit the right of defendant to recoup the improvements, expenses, etc., to a bona fide occupant, who is defined to be “ one who supposes that he has a good title and knows of no adverse claim.” “ But,” says Lowree, J., in that case, “ one who forcibly dis-seizes another and makes such improvements or who makes them after action is brought to try title can have no claim to have his improvements estimated.” Ege v. Kille, 84 Pa. 333, is among the latest cases. It was an action of trespass for mesne profits. The defendants had mined ore in plaintiff’s land and were allowed to deduct their reasonable expenses of mining the ore from market value of ore. But this right was based entirely upon the fact that defendants were bona fide purchasers and occupants in good faith under color of title. Mercur, J., makes good faith the grounds for so deciding. He says, “ having acted in good faith in working the mines and in removal of the ore they should be chargeable for it only with its value in place.” Morrison v. Robinson was followed in this case. A case more nearly resembling this one is Noble v. Biddle, 81* Pa. 430. This was an oil case tried in Warren county before Justice Trunkey. Noble, the defendant, held a tax title under which he had recovered in the first ejectment in the action for mesne profits; after judgment against him in the second ejectment lie was allowed for improvements, etc., but only on the ground that nis possession was bona fide and under color of title and then only to the extent that his improvements were permanent additions to the value of the property. No expenses for drilling dry wells, were allowed. This is the same rule observed in other courts: Green v. Biddle, 8 Wheat. 1; New Orleans v. Gaines, 15 Wall. 434; Wooden Ware Co. v. U. S., 16 Otto 434; Jackson v. Loomis, 4 Cow. 168; 2 Story Eq., § 799; 2 Kent 335. The English cases leave no doubt as to the rule. In Bainbridge on Mines, 1 Am. ed. 448, that learned author says: “In cases of actual fraud a court of equity will probably follow the cases decided at law which give compensation without any deduction for cost of working.” In Livingston v. Rawyards Coal Co. L. R., 5 App. C. 24, Lord Chancellor Hatherly says: “ There is no doubt that if a man furtively and in bad faith robs his neighbor of his property, and because it is under ground is probably for some little time not detected, the court of equity in this country will assert its authority to punish the fraud by fixing the person with the value of the whole of the property which he has so furtively taken, making him no allowance in respect of what he has so done as would have been justly made to him if the parties had been working by agreement. But when we once arrive at the fact that an inadvertance has been the cause of the misfortune, then the simple course is to make every just allowance for outlay on the part of the person who has so acquired the property, and to give back to the owner so far as possible the full value of that which cannot be restored in specie.” This doctrine of the Lord Chancellor is the same as that adopted in the courts of law: Addison on Torts, 3 ed., 300; Martin v. Porter, 5 M. & W. 351; Wild v. Holt, 9 M. & W. 672; Morgan v. Powell, 3 Ad. & E. 278. These last cases are approved in Lyons v. Gormley, supra, and in 2 Sedgwick on Damages, 496 and 500. Under these authorities, the plaintiff is entitled to recover the value of the oil as a chattel in the tank at the well at the time of delivering to the pipe line, and the defendants’ claim to deduct cost of mining it cannot be allowed. Having arrived at this conclusion from an examination of the authorities pertinent to the first question, no authority justifying a different conclusion on the second question can be found.' That the defendants were tenants in common with the plaintiff is no reason for their taking Ms share of the oil without his consent and selling it, and converting the proceeds to .their own use. In the case of an ouster of one tenant in common of mineral land by his co-tenants, is there anything to affect the rule just stated ? It is urged by defendants’ counsel that, this being a mining partnership and the lease having been taken for the purpose of mining for oil, that the defendants, by prosecuting the same business after the plaintiff’s interest ceased, were only doing that which he would have done had he continued a co-tenant or partner with them and what the terms of the lease required; and that no wrong is done the plaintiff by deducting from the value of his share of the oil his like share of the reasonable expenses of its production. But as between tenants in common, the right of one to charge for improvements put upon the common property in the absence of an agreement between them, is confined to repairs that are absolutely necessary upon houses, mills, etc., to prevent dilapidation. The case of Crest v. Jack, 3 W. 238, is a leading authority on tMs question, and is cited with approval in courts of other states. In that case defendant had built a valuable brick dwelling upon an unimproved lot in the village of Kittanning, the common property in wMeh the plaintiff Jack owned one tenth interest; the plaintiff knew that the defendant was building. They both lived in the same village, but were not on speaking terms. The defendant contended that plaintiff should reimburse him for his proportion of the expenses of the building, but this claim was not allowed, and, in the opinion of the Supreme Court affirming the judgment of the court, Sabgent, J., says: “ If a stranger enter on the land of another and make improvements by erecting buildings-, they become the property of the owner of the land. Were it not so, a person might gain a title by the commission of a trespass, and strip his neighbor of his estate or subject him to compulsory expenses under the pretext of improving his property; and this doctrine holds as well with respect to joint owners as to strangers. One joint tenant or tenant in common cannot erect buildings or make improvements on the common property without the consent of the rest, and then claim to hold until reimbursed a proportion of the moneys expended.” This case is cited with approval in the latest cases on this subject found in our reports: Dech’s App., 57 Pa. 467; Beaty v. Bordwell, 91 Pa. 438; Gregg v. Patterson, 9 W. & S. 197; Lane v. Harrold, 72 Pa. 267; Freeman on Co-tenants, §§ 261 and 262. This case of Crest v. Jack determines the second question above against the defendants, and the plaintiff is therefore entitled to recover the proceeds of the plaintiff’s share (to wit, 1) of the oil taken by defendants from the land and sold and converted by them to their own use, which amounted to $4,596.41 on the 4th day of June, 1887. In accordance therefore with the stipulation of the parties, the prothonotary is directed to enter judgment in favor of the plaintiff and against the defendants after the expiration of six days from the filing of this report for the sum of $4,644.39, being the above amount with interest from June 4th to date of entry of judgment. Judgment having been entered, the defendants took this writ, assigning for error: 1. The answers to the plaintiff’s points.18 3 2. The answers to the defendants’ points.4 6
118 Pa. 53Wisecarver v. Adamson (1888)
ERROR TO THE COURT OF COMMON PLEAS OE GREENE COUNTY. No. 193 October Term 1887, Sup. Ct.; court below, No'. 57 June Term 1884, C. P. The cause below was on an appeal by tbe defendant from a judgment by a justice of tbe peace in favor of J. H. Adamson against George Wisecarver for $34.03. At tbe trial on January 18, 1887, tbe plaintiff, J. H. Adam-son, proved that in 1881 he was operating a planing mill in Waynesburgh, and the defendant, George Wisecarver, owning a farm in Franklin township, became indebted to him for dressing oak flooring and poplar siding to the amount of $31.93. The defendant, George Wisecarver, introduced evidence tending to support his claim, that in February, 1881, he had made a contract with one Martin Windell, who was then operating the planing mill, by which Windell was to dress lumber for him at 50 cents per 100 feet, to be paid in lumber at $2.00 per 100 feet, the lumber to be delivered to Windell on Wisecarver’s farm; that under this contract Wisecarver in March, 1881, delivered 2675 feet of oak flooring at the mill to be dressed, and soon afterwards, Windell, having sold the planing mill to Adamson, the latter engaged to carry out the contract as made with Windell; that in September or October, 1881, Wisecarver sent to the planing mill a lot of oak flooring and poplar siding to be dressed, which he afterwards received; that he never received any part of the 2675 feet of lumber delivered at the mill before the sale to Adamson, which lumber was turned over to and used by Adamson, and Wisecarver was entitled to credit therefor. The plaintiff denied that he had ever undertaken the performance of Windell’s contract with Wisecarver. The court, Inghkam, P. J., charged the jury as follows : On the part of the plaintiff, he does not deny that he did receive part of the lumber that Wisecarver delivered to the mill while Windell was the owner or occupier, but he claims that the testimony shows, that at the time of the sale by Windell to Adamson there was but between six and seven hundred feet of lumber in the mill belonging to the defendant, Wisecarver. He does not deny that there was that amount of lumber there, and that he used it or sold it, but he claims to have given the defendant credit Avith all the lumber he sold or converted to his own use; that he gave him credit with it at such price as lumber of that kind was selling for at his mill, and that for such saAving as was done afterwards, he did the work he has charged for and that the prices are just such prices as he charged other people at that time for such work; and that giving the plaintiff, or defendant, credit for the amount of lumber that he used or sold belonging to the defendant, there is still due him from the defendant the sum of thirty-one dollars and ninety-three cents; and he denies that there was any such contract between him and the defendant as claimed by the defendant after the purchase of the mill, that he was to take his pay for the work performed in dressing the defendant’s lumber, in lumber at two dollars a hundred at the farm of the defendant in Franklin township. If you should find from the evidence that there was no such contract between Adamson and Wisecarver as claimed by Mr. Wise-carver, then it will be your duty to ascertain from the evidence how much work Adamson did at his planing mill for Wisecarver and whether the prices charged were reasonable or not, and whether he has been paid for that work...... But if you find that there was a contract between Wisecarver and Windell, and Adamson afterwards agreed to carry out that contract, or that there was a contract between Wisecarver and Adamson such as is claimed by Mr. Wisecarver, then has that contract been carried out ? Has Adamson accounted for all the lumber received by him from the defendant ? Has he ■charged him what he agreed to charge him for dressing his lumber, and has the lumber been delivered over? If it has been and Adamson has been paid the full amount of his claim as against Wisecarver for the labor performed, then he would not have a right to recover in tins action and your verdict should be for the defendant. It will be altogether a question of fact for you under the evidence in the case as you may find it to be one way or the other. [Something has been said in your hearing as to the manner of payment. As we view the matter now, that is a question about which the jury need have no concern. It may come before the court hereafter for determination, but for the present it is not a matter for the jury to consider.] 4 On the part of the defendant we have been requested to instruct you: 1. If the jury believe from the evidence that the contract between Martin Windell and George Wisecarver was, that the said Martin Windell was to plane and dress the lumber of the said Wisecarver at his planing mill at 50c per 100 feet, and in payment for said planing and dressing, was to take oak flooring lumber at $2.00 per 100 feet to be taken by the said Martin Windell at the farm of the said Wisecarver in Franklin township, and that the said J. H. Adamson, the plaintiff, agreed with the said George Wisecarver to fulfill said contract between said Windell and said Wisecarver, and that the planing and dressing of flooring and siding, for which this suit is brought, was done under and upon the terms of the said contract, and that the said George Wisecarver had then, and has always had, and still has, the lumber so agreed by him to be delivered to the said Windell and Adamson in payment for the planing and dressing of said lumber, and has always been ready and willing to deliver the same to the said J. H. Adam-son, whenever called for ; then the. plaintiff is not entitled to recover, and the verdict ought to be for the defendant. Answer: Refused. 1 2. If the jury believe from the evidence that J. H. Adam-son used or sold enough, or more than enough of the lumber of the said George Wisecarver which came to his hands by the delivery of the same, by the said George Wisecarver to the said Martin Windell, and by the said Windell to Adamson, sufficient in amount to cover his bill for planing and dressing, then the plaintiff ought not to recover, and the verdict should be for the defendant. Answer: Affirmed. On the part of the plaintiff we have been requested to instruct you: 2. The plaintiff is entitled to recover a verdict in this case-for the full amount that the jury may find to be due him from the defendant under the evidence, and this, notwithstanding the fact that they may believe that J. H. Adamson had agreed to take lumber in payment for the work, and may further believe that George Wisecarver had and has lumber upon his. farm sufficient to pay the amount due the plaintiff. Answer: The second point is correct and is affirmed. If you should find that there is anything due from Adamson toWisecarver, you will so state in your verdict. As we stated before, as to the manner of payment, if Adamson was to take lumber, if you find that he was, you need not give yourselves any concern about that. That is a question that will arise, hereafter.3 8. The fact that George Wisecarver has lumber upon his-farm sufficient to pay the claim of the plaintiff, is not such a. tender of payment as would prevent the plaintiff from recovering a judgment in this suit for the full amount found to be due him. Answer: If it is intended by that point to convey the idea, that it was necessary for Wisecarver to make a tender of this, lumber, it is not correct. If there was a contract between Adamson and Wisecarver by which Adamson was to take lumber, it was Adamson’s duty to demand it, not Wisecarver’s to tender it. If that be the meaning of the point it is not correct. But if it be only meant that there is lumber there, that need not be a bar to a recovery at your hands of a verdict for the plaintiff, if you should find that there is anything due to the plaintiff in this case, and with that qualification the point is correct and is affirmed.3 The verdict of the jury was for the plaintiff for $10.87, and, judgment being entered, the defendant took this writ, assigning for error: 1. The answer to the defendant’s first point.1 2. The answer to the plaintiff’s second point.3 8. The answer to the plaintiff’s third point.3 4. The part of the charge embraced in [ ].4
118 Pa. 58Huffman v. Huffman (1888)
ERROR TO THE COURT OP COMMON PLEAS OP GREENE COUNTY. No. 116 October Term 1887, Sup. Ct.; court below, No. 123 January Term 1884, C. P. „ . This was an ejectment begun on December 12, 1883, by Benjamin Huffman and five others, his brothers and sisters, against Jacob J. Huffman, another brother, to recover the undivided six eighths of sixty-six acres ■ and fourteen perches of land in Washington township. At the trial on January 22, 1887, it was shown that Nancy A. Huffman, the mother of the parties -to the suit, died in 1882, and John Huffman, their father, in 1883. It was found, and no question as to the finding raised here, that the title to sixty-two acres and eighty-nine perches of the land in dispute was in Nancy A. Huffman and the title to three acres and eighty-five perches thereof was in John Huffman, or outstanding. The plaintiffs claimed to recover as heirs at law. The defendant introduced evidence tending to show that in 1859 he had rented the land in dispute'from his father for $50 per year; that in 1861, his father and mother made a parol gift of said land to him, pointing out the lines, and that in pursuance thereof he had ever since held possession, used and treated the land as his own, made valuable improvements, built a house in which he and his family lived, etc.; that such possession had been held for more than twenty-one years prior to the bringing of the suit, and that neither John Huffman nor his wife had at any time interfered with defendant’s possession in any way, or claimed anything in the way of rent. The court, Inghram, P. J., charged the jury in accordance with his answers to the points presented which were inter alia as follows: Plaintiff’s points. 3. If Mrs. Huffman was owner of the whole of the land in controversy any parol gift of it to the defendant by her, or by her and her husband, would be a nullity as to her. Answer: Affirmed.8 4. If Mrs. Huffman was owner of the whole of the land in controversy any parol gift of it to the defendant by her, or by her and her husband, would be a nullity as to her, although the gift may have been followed by such possession and expenditure for improvements, as would take a ease between parties competent to contract out of the statute of frauds and perjuries. Answer: Affirmed.1 5. If Mrs. Huffman was owner of only part of the land in controversy, any parol gift of it by her, or by her and her husband, would be a nullity as to her. Answer: Affirmed.8 6. So far as Mrs. Huffman is concerned, the defendant has shown no parol gift of the land in controversy, or any part of it, which equity would enforce. Answer: Affirmed.5 8. If the land in controversy was the property of Mrs. Huffman the jury should find for the plaintiffs as to six eighths of the land described in the writ. Answer: Affirmed.4 Defendant’s points. 1. If the jury believe from the evidence that the title to this land in dispute was in John Huffman and that John Huffman died something over 21 years after he put his son Jacob, the defendant here, in possession of it and that he did not interfere in any manner with Jacob’s claim of title, that claim being one of right in himself, and that John Huffman did not disturb Jacob’s possession during all this time, then them verdict should be for the defendant. Answer: Affirmed. 2. If the jury believe from the evidence that Jacob Johns made a parol gift of about 200 acres of land covering the land in dispute, about years 1826 or 7, to John Huffman and his wife, and that the said donees took possession in pursuance of the gift aforesaid, cleared the land, built a brick house, made other valuable improvements and treated and used the land as their own, holding possession of part of said land until the fall of 1861, at which time they made a parol gift of about 66 acres to defendant, and the balance of said 200 acres was held by them until the death of Nancy Ann Huffman in September, 1882, at which time the husband John Huffman was still alive, then the holding of John Huffman and wife to the 200 acres given them by Jacob J ohns was by entireties, and a parol gift by the husband and wife to Jacob Huffman of the land in dispute in 1861 would pass the title thereto to Jacob Huffman if he took or continued in possession in pursuance of said gift, made valuable and permanent improvements and used and treated the land as his own, and their verdict should be for the defendant. - - - Answer: Refused. 3. Even if the jury should believe from the evidence that the title to the land in dispute was in Nancy Ann Huffman, yet if they further believe that Nancy Ann Huffman and John Huffman in the year 1861 made a parol gift of the same to the defendant and pointed out the boundaries thereof to him, and that defendant entered into or continued in possession in pursuance of the gift; that he held the same adversely, continuously, notoriously and uninterruptedly for upwards of 21 years before the bringing of this suit; that he built a house, planted an orchard, and made other valuable improvements, such gift, possession and improvements would give the defendant the title to the land in dispute, and their verdict should be for the defendant. Answer: Refused.18 7. If the jury believe from the evidence that the defendant held and used the land in dispute as his own for a period of 21 years prior to the bringing of this suit; that the defendant’s possession and holding was not interfered with by John Huffman or his wife in any way and that he was not required and did not pay during said period any rents of any kind to John Huffman and his wife or either of them, then the presumption of the law is that there was a gift or grant of the land in dispute to the defendant, and his title thereto has become perfect by lapse of time, and said holding is evidence of the absolute character of the gift, and their verdict should be for defendant. Answer: That point is correct and is affirmed so far as John Huffman is concerned, but so far as his wife, Nancy Ann Huffman is concerned, we have already instructed you that if you should find that the property belonged to her at that time, that the plaintiffs would have a right to recover in this suit. With that explanation the point is correct and is affirmed so far as John Huffman is concerned.9 9. If the jury believe from the evidence that the defendant, and. those claiming under him, held notorious, continuous, uninterrupted, adverse and hostile possession of the land in dispute for a period of twenty-one years prior to the bringing of this suit, their verdict should be for the defendant. Answer: That point is correct and is affirmed with the explanation given to you in our general charge as to the claim of ownership by Mrs. Huffman.10 10. The real question in this case is not so much what was intended'by the donor or donors, as what the donee’s understanding was, what he claimed and what he did under the parol gift. Did defendant consider the gift absolute and under that idea did he hold adversely, notoriously and continuously, to his father or to the mother under his, her or their parol gift for the period of twenty-one years prior to the bringing of this suit; if so, the verdict should be for the defendant. Answer: That point is correct and is affirmed so far as John Huffman’s interest in the land is concerned as we have already explained to you in our general charge. With that explanation the point is correct and is affirmed.11 The verdict Avas for the plaintiffs for six eighths of the land described in the Avrit, less three acres and eighty-five perches, and as to that amount for the defendant, agreeably to plots filed. Judgment being entered, the defendant took this writ, assigning for error: 1. The ansAver to the plaintiffs’ fourth point.1 2-5. The answers to the plaintiffs’ points.3405 9-12. The answers to the defendant’s points.9 *°13
118 Pa. 65Appeal of Douglass (1888)
No. 131 October Term 1887, Sup. Ct.; court below,' No. 135 in equity.
118 Pa. 77Rosenberger v. Commonwealth (1888)
No. 31 October Term 1887, Sup. Ct.; court below, No. 71 December Term 1886, Q. S. On December 6, 1886, an information was. made by Alexander Hill against P. H. Rosenberger, Philip Rosenberger and Daniel Rosenberger, charging them with the larceny from the house of the informant and his mother, Catharine Hill, in Cowanshannock township, on April 3, 1883, of seven hams, of the value ten dollars, and ten pieces of pork, of the value of fifteen dollars, the property of the…
118 Pa. 84Overseers of Gilpin Tp. v. Overseers of Parks Tp. (1888)
No. 66 October Term 1887, Sup. Ct.; court below, No. 11 March Term 1887, Q. S. On December 27, 1884, the overseers of the poor of Parks township made information before two justices of the peace that Alexander Williams with his family had lately come to reside in said township without having gained a legal settlement therein, was likely to become a charge on said township and that his last legal residence was in Gilpin township, asking for an order of removal.
118 Pa. 89Truby v. Mosgrove (1888)
No. 118 October Term 1887, Sup. Ct.; court below, No. 286 June Term 1883, C. P. This was an action of assumpsit brought on May 5,1888, by Simon Truby, Jr., assignee for the benefit of the creditors of D. A. Ralston, against James Mosgrove and William Pollock, administrators of J. E. Brown, deceased.
118 Pa. 94Bassett v. Hawk (1888)
ERROR TO THE COURT OE COMMON PLEAS OE ARMSTRONG COUNTY. Nos. 209, 218, October Term 1887, Sup. Ct.; court below, No. 51 June Term 1882, C. P. This was an action of ejectment by A. E. Bassett against Simon Hawk for a parcel of land in South Buffalo township, containing twenty-five acres, more or less, brought March 23,. 1882. The plea was not guilty. A former judgment, for the-defendant, was reversed in this court with a venire de novo, and is reported in 114 Pa. 502. At the second trial, on March 24, 1877, it was made to-appear that Columbus McGinley died on April 14,1843, seized in fee of and residing upon a tract of about one hundred acres, including the land in dispute, and leaving a will, duly admitted to probate on April 24, 1844, containing the following provision: The farm on which I live, in Buffalo township aforesaid, I give and bequeath the one half of the same to my daughter, Nancy Clark, being the end next William Morrison, and adjoining lands of William Todds and George Keener, Sen., with the buildings and orchard; the balance of the land, or the other half of said tract, I will to my son, Daniel McGinley, to his use as long as he shall live, and to his legal heirs, if he have any, at his death; and if my son, Daniel McGinley, do not have any legal heirs at his death, then, and in that-case, this part of the farm aforesaid which is not devised above to my daughter, Nancy Clark, I will it to be given to my grandchildren, Charlotte Clark, Mary Clark and Columbus-Clark. On August 16,1850, John Clark and Nancy, his wife, and the daughter of the testator, who had been occupying the improved part of said farm since the testator’s death, joined in an article of agreement with Daniel McGinley, which, reciting that claims had been entered in the Common Pleas as-liens against the land of which the testator had died seized, and that suit had been brought by John and Nancy Clark against said Daniel, provided that the said suit should be discontinued; and “the said Daniel McGinley, for himself, his heirs and assigns, sells, transfers and releases forever to the said John Clark and Nancy, his wife, the following described piece or parcel of land above described in fee, so far as he has any interest therein, to wit, beginning.....estimated at thirty-six acres, more or less;” and John and Nancy Clark conveyed and released to Daniel McGinley all that remained of the tract devised in said will. Mr. and Mrs. Clark then went into possession of the thirty-six acre parcel, which embraced the land in dispute, and remained thereon till Jan-nary 4, 1855, when they conveyed the same to Simon Hawk, the defendant, who went into possession, paid taxes and made improvements. Of the grandchildren to whom the devise in said will was made, all of them children of said Nancy Clark by a first husband, Columbus died in 1852, leaving his mother to survive him, still living; Mary, the wife of William McCain, died September 29,1857, leaving a son, Frank McCain, still living; Charlotte, who had become the wife of Jacob Forcade, survived them; Daniel McGinley died May 12, 1873, without lawful children. Jacob Forcade died February 14, 1876, and on January 21, 1881, Charlotte Forcade conveyed the parcel devised in said will to Daniel McGinley to M. L. A. McAlister, who conveyed to J. F. Jewell, who on March 10, 1882, conveyed the land in dispute to A. E. Bassett, the plaintiff. The court, Neale, P. J., charged the jury and answered the points presented, as follows: This action is brought by the present plaintiff for the recovery of twenty-five acres of land, more or less, situate in South Buffalo township, in this county, according to the boundaries as described in the praecipe which has been read in evidence in your hearing. It may be that the praecipe calling for only twenty-five acres of the land, might confine the plaintiff in any verdict that Le would recover, to the twenty-five acres; but it is somewhat in doubt whether that would be the case or not, as clearly a part of the Hawk land lies north of the division line of the original Colum. McGinley tract, and there is no title shown in the plaintiff for any of the land lying north of that line; therefore, in order to meet that, we have framed a verdict which if you find the fact as we may indicate to you, will be your verdict. It is, of course, for the jury to determine upon the facts in the case, their verdict, whatever it may be. Colum. McGinley, it seems, was seized of an estate in fee amounting to about one hundred acres of land, and died sometime in 1843 or 1844, having first made his last will and testament. By that last will and testament he devised his tract of land to his two children. To the one he gave one-half; that is, to his daughter he gave one-half of the tract in fee, that is, the half lying north of the division line of this tract; and to the son was devised the other half part of the tract to himself for life, and in case he left any legal heirs, to them, with the additional clause, that in case he died without legal heirs, then his half was at the time of making the will, devised to the three children then living, of Nancy Clark, the sister of Daniel McGinley, who was then married and had three children in full life. [Upon the death of Colum. McGinley, this estate vested in Daniel McGinley as the life tenant, or as the tenant in fee, if he afterwards had legal heirs. In default of the legal heirs, it vested in the three children, the persons named in the will, as the devisees of that part or interest in the estate. Daniel McGinley, it appears from the evidence, died in the year 1873, leaving no legal heirs, or children, as we interpret the meaning of that will to be. The estate, so far as that piece of land is concerned, devised to Daniel, vested at the death of old Colum. McGinley in Daniel for life, and at his death, in the three children of Nancy Clark. Their interest became vested, but it was not capable of being reduced to possession so far as those three children were concerned, until after the death of Daniel McGinley. And only then, upon the contingency that he should die without legal heirs, which contingency actually took place, as he appears to have died without having left any children at all. Then, the estate having vested in the three children at the time of the death of old Colum. McGinley, the original testator, we hold that it was a vested estate so far as those three children were concerned excepting as to the possession. They had no right of entry, no right of immediate possession, in fact, no right of possession until Daniel McGinley died, unless it would be through Daniel McGinley himself. He might have given them the right, or surrendered his right of life possession to those three children. The three children of Nancy Clark as named in the will, having then taken an interest in that estate, they would be entitled now, or such heirs as they may have, to recover that part of the land as devised to Daniel under the will of Colum. McGinley. And, therefore, in considering the right of the plaintiff in this present action to recover, you have to confine yourselves to what title he had, or what title he now claims upon. It is clear that he possesses, so far as the court can understand it, the interest or title of Charlotte Forcade in that particular piece of land, and therefore, there can be no doubt about his right to recover the one undivided one-third part of this piece of land. But Columbus Clark was living, so far as the testimony-shows, after the death of Colum. MeGinley, the original testator, and therefore, by virtue of the will he had a right to the one undivided third part of the land so devised, without having the right of possession until the death of Daniel MeGinley, in case Daniel MeGinley died without leaving legal heirs, or issue. You will have to consider as to the interest of Columbus Clark, where did it go ? Under the intestate laws of the commonwealth of Pennsylvania, where a child, being seized of an estate or being heir to an estate or entitled to it, dies being a minor, the interest of that particular child or heir goes to the parents of the child— to the father, and if the father be dead, to the mother. Now that estate is outstanding, so far as any division is concerned. Columbus Clark is not shown to have parted with his interest in any way, and his interest would therefore go to his mother during life, and if she has made a conveyance of her interest in that land, that conveyance would include the interest which she might have derived, either before or subsequent to the death of Columbus Clark, her son, which would pass to the grantee under her deed, and therefore, the life interest vested in Simon Hawk to the estate of Columbus Clark, and if you find the facts as we have stated, to be so, that disposes of that two third interest. As to the other child of Mary Clark, who afterwards married McCain, who appears to be dead, she having left a child, her interest descends to her child. She having died subsequent to the death of Colum. MeGinley, the testator, her interest descends to her heirs, and as we find they have not in any way joined in the deed to the present plaintiff, that interest is still outstanding and the plaintiff can only recover upon title vested in himself; he cannot where the title is outstanding in another, he must show good title in himself; no difference whether this defendant has that outstanding title or not, he is only entitled to recover so far as he shows a right to recover. If you find the fact as we have stated to you, and we believe that those are the facts that are in evidence, but the question of fact is submitted to you; if you find the facts as we have stated, then this plaintiff is only entitled in this suit to recover the one undivided third part of the land described in his writ, lying south of that division line.]1 Plaintiff’s points: 1. That under the will in evidence, Daniel McGinley was devised a life estate only, in the south half of the farm owned by the testator, Colum. McGinley, and in the event of Daniel’s leaving no children at his death, then that part of the land left to him was devised to Charlotte Clark, Mary Clark and Columbus Clark, grandchildren of the testator. Answer: Affirmed. 2. That Daniel McGinley, never having married, left no legitimate child, and that of the several grandchildren mentioned in the will, Charlotte, intermarried with Jacob Foreade, alone survived Daniel. The particular estate left to Daniel by his father, therefore, at the death of Daniel, May 12, 1873, eo instanti vested in Charlotte Foreade, and the plaintiff by legal title, derived immediately from her, has shown a complete legal title to all the land in controversy lying south of the middle of the tract owned by Colum. McGinley. Answer: That point is refused.8 3. That under all the evidence in the case, the plaintiff is entitled to recover, and the verdict of the jury should be for the plaintiff for the land described in the writ, to wit, twenty-five acres. Answer: That point is affirmed, so far as title is shown to be in plaintiff, in the land in dispute.3 Defendant’s points : 1. If the jury are satisfied from the evidence that twelve acres of the land in suit is not in the south half of the tract, for this there can be no recovery in any event. Answer: Affirmed. 2. The plaintiff has only shown the title of Charlotte Clark, now Foreade, in him, and in any event can only recover the undivided one third of the twenty-five acres lying in the south half of the tract. Answer: That point is affirmed.3 3. The will of Colum. McGinley gave Daniel an estate in the land in fee, under the rule in Shelley’s case. Answer: That point is refused.10 4. If the third point is incorrect, then Charlotte, Mary and Columbus Clarlc took a contingent remainder, and Daniel took a life estate and was life tenant in tail of the estate. Answer: That point is refused.6 5. This contingent remainder depended upon two contingencies : first, that Daniel would die without legal heirs or children, and second, that the remainder could not vest in them until Daniel’s death. Answer: That point is affirmed. 6. It is an inflexible rule that a contingent remainder must vest during the continuance of the particular estate, or upon the instant it determines, or not at all; if it does not then vest it is gone forever. Answer: That point is affirmed. 7. A contingent remainder may be destroyed by any occurrence which brings to end the particular estate before the happening of the contingency, on which the remainder is to vest. Answer: That point is affirmed. 8. If the jury are satisfied from the evidence that Nancy Clark took possession of the land in suit, in 1850, or before that time, and claimed it as her own and exercised all the usual and ordinary acts of ownership over it, and in 1854 sold it to the defendant and made him a deed in fee for it, and he, in 1854, took possession of it as his own and exercised all the usual and ordinary acts of ownership over it for a period of over 21 years, before the death of Daniel McGinley, any claim that he might have had was barred by the statute of limitations, and all remainders dependent on his estate fell and were barred thereby, and defendant is entitled to recover. Answer : That point is refused.7 9. When Nancy Clark made her deed in fee to Hawk and he entered and put his deed on record and claimed under it adverse to the world and exercised all the usual and ordinary acts of dominion and ownership over it, in 21 years from that date an ouster would be presumed, and his title by the statute would be good, although Daniel died before the 21 years elapsed; for when the statute commences to run it is not stopped, but continues to run until the remainderman asserts his or her rights, and that was not done in this case until this suit was brought in 1882, twenty-seven years after Hawk entered. Answer: That point is refused.8 10. Charlotte Forcade having made deed to Mrs. McAllister for part of the south end of the tract under her claim under the will and under Daniel’s title, and having received the purchase money therefor, is estopped from setting up title to Nancy’s thirty seven acres, and the plaintiff cannot recover on her title. Answer; That point is also refused.9 [If you find the facts as we have stated, this would be as near as we can frame it, the form of the verdict: “We find in favor of the plaintiff for. the one undivided third part of the land described in the writ so far as the same lies south of the division line of the Colum. McGinley tract, with six cents costs and six cents damages; and we find for the defendant for the land lying north of that division line, and as to the remaining undivided two thirds of said land described in the writ, we find for the defendant.”] 4 Both parties excepted to the charge of the court and the answers to the points, and the jury having found for the plaintiff for one third and for the defendant for the remaining two thirds of the land described in the writ, both parties took out writs of error. A. E. Bassett assigned as error: 1. The parts of the charge embraced in [ ]1 2. The answer to the plaintiff’s second point.® 3. The answer to the plaintiff’s third point.3 4. The part of the charge embraced in [ ]4 5. The answer to the defendant’s second point.8 Simon Hawk assigned as error: 1. The answer to the defendant’s fourth point.6 2. The answer to the defendant’s eighth point.7 3. The answer to the defendant’s ninth point.8 4. The answer to the defendant’s tenth point.9 5. The answer to the defendant’s third point.10
118 Pa. 108McIntire v. Westmoreland Coal Co. (1888)
ERROR TO THE COURT OP COMMON PLEAS OP WESTMORELAND COUNTY. No. 216 October Term 1887, Sup. Ct.; court below, No. 861 August Term 1885, C. P. On August 25,1885, an action on the case was instituted by Samuel P. Mclntire and Jane Mclntire against the Westmoreland Coal Company, wherein a narr. was filed on November 7,1885, in which it was averred that S. P. Mclntire was the owner in fee of a lot of ground in Jacksonville, a village in North Huntingdon township, and that Jane Mclntire had the use of said property during her lifetime; that upon said lot the plaintiffs had a hotel property, dwelling, stable and other buildings and until of late there had also been thereon a never-failing well of water; that the said lot was underlaid with the Pittsburgh seam of coal, valuable in itself and necessary to support the surface of the lot and preserve the flow of water in and to said well; that the defendant companyi were and had been the owners of said seam of coal underlying the land adjoining the said lot of the plaintiffs, and had entered into, mined and carried away the said seam of coal under said lot without allowance or permission from the plaintiffs, and in so doing had broken the overlying strata in such manner that the well had been destroyed, whereby among other injuries set out, the value of the hotel property had been destroyed. To this narr. the defendant pleaded not guilty. On February 10, 1886, on leave granted, the plaintiffs filed an amended narr. in seven counts, setting forth the same cause of action and averring that the defendant company “with force and arms, etc., broke and entered,” etc., and. carried away large quantities of coals, and thereby caused the overlying strata to become cracked and opened, whereby, etc. On February 28, 1887, the. cause coming on for trial, leave was given to withdraw the plea filed and eo die the defendant filed a motion to quash the writ and the narr. for the reason: Because the plaintiffs have no joint cause of action, nor unity of title, estate or possession: The law gives different remedies to the plaintiffs; to the life tenant in possession, an action of trespass, and to the remainderman, an action on the case. From a reference in the original narr. to a recorded conveyance, it was found that the plaintiffs’ lot was formerly of the estate of Hugh Mclntire, deceased; that the fee subsequently became vested in Samuel P. Mclntire subject to a dower interest in Jane Mclntire, widow of said deceased, and that thereafter Samuel P. Mclntire conveyed the lot to Jane Mclntire “to be used and enjoyed by her during her natural life or as long as she occupies it.” After argument of the motion to quash, the court, Hun-tee, P. J., on April 16, 1887, filed the following opinion and decree: This is a joint action brought by Samuel P. Mclntire and Jane Mclntire. All we can look at is the record, which informs us that the action is in case, that the narr. contains numerous counts, some of which are for trespass, and that Jane Mclntire has not only exclusive possession, but the right of possession, while Samuel P. Mclntire has neither the possession nor the right of possession, but the remainder in fee. Therefore, they are not tenants in common 'and have not a community of interest. Apart from this, the declaration discloses the fact that one injury was done to Jane Mclntire by interfering with her possession, or rather the enjoyment of the same, and that another injury was done to S. P. Mclntire by a destruction of the freehold. The coal mine underlying the land was unopened, and therefore the tenant for life could not disturb or move it and had she attempted to do so the remainderman could have prevented her; so that in this respect at least the rights of the parties plaintiff are not only not in common but antagonistic. Now we have said that some of the counts are in trespass or at least sound in trespass, and there is nothing better settled than that to support trespass to lands there must be in the plaintiff either an active possession or the right of immediate possession. This Samuel P. Mclntire had not, but Jane MeIntire had both, and how could these plaintiffs be joined. If the possession of Jane Mclntire was directly disturbed, she could bring her action of trespass, whether done by the coal company or their employees, Samuel P. Mclntire, or any one else. On the other hand Samuel P. Mclntire, as remainder-man, could only complain of waste, and his remedy would be by an action on the case. In a word, if the possession of Jane Mclntire was disturbed she had her remedy. If waste was committed, Samuel P. Mclntire had his remedy, and these rights are separate and distinct. We need not cite authorities in this regard. The rule is an elementary one and does not need the citation of authorities. But it is contended by plaintiffs’ counsel that this application comes too late inasmuch as that it is in the nature of a plea of abatement, and that a plea in bar having been heretofore entered, it is now too late to raise the question. In reply to this we may say that the declaration was amended, and while the defendants might have gone to trial on their plea as entered, yet they clearly had the right to amend or withdraw the plea so as to meet the amended declaration, and thus to plead over. We need not, however, rule the question on this technicality, because our Supreme Court have held in McDonald v. Simcox, 98 Pa. 619, that in action ex delicto, if too many persons are made co-plaintiffs, advantage may be taken of it at any time. This is clearly a case of misjoinder, and there is no use in going on with the case. We had better stop here and begin in the new, which both parties plaintiff will have the right to do if they desire. And now April 16, 1887, writ and declaration quashed. Thereupon the plaintiffs took this writ assigning said opinion and order as error.
118 Pa. 115Patten v. Scott (1888)
ERROR TO THE COURT OE COMMON PLEAS OE WASHINGTON COUNTY. No. 81 October Term Í887, Sup. Ct.; court below, No. 81 November Term 1884, C. P. Moses Scott was the plaintiff below in an action of ejectment against William Patten, to recover a tract of land in Carroll township, containing about one acre, the summons being issued on September 11, and served on September 17, 1884. Plea, not guilty. On December 24, 1886, the death of the defendant was suggested and Isabella Patten et alii, his widow and heirs, were substituted. At the trial on March 3, 1887, before Stowe, P. J„ 5th district, holding special term, the plaintiff showed title by survey to Thomas Scott on August 13, 1830, in pursuance of a warrant dated August 26, 1823, embracing the land in dispute ; the will of Thomas Scott, dated June 24,1854, proved March 4,1856, devising a tract embracing the land in dispute to his children; deed from the devisees of Thomas Scott for all their interests in the land thus devised, to Moses Scott, acknowledged January 30 and February 26, 1863, and recorded ; also a patent from the commonwealth to Moses Scott, dated June 5, 1884, for 2 a. and 40 p., embracing the land in dispute* This patent recited that it was granted “ in consideration of moneys paid by Thomas Scott at the granting of the warrant hereinafter mentioned and of the sum of nine dollars and forty-six cents in full of the purchase money, interest and fees, now paid by Moses Scott into the treasury office of the commonwealth,” etc. The plaintiff, showing possession by defendants, then rested. The defendants, under objection, introduced evidence tending to show that William Patten, the defendant when the summons was served, had title to the land in dispute, by adverse and uninterrupted possession of all of it since May, 1863, and of a large part of it for 'many years before 1863, and rested. After the plaintiff had begun his rebutting case, the trial judge announced that upon reflection he was satisfied that the title set up under the evidence of adverse possession was no defence to the title shown by the plaintiff. The trial being then arrested, the court charged the jury and answered the plaintiff’s point as follows: This case has been brought to a very sudden termination by the position I have been compelled to take on the matter of law involved in the defence set up. Yesterday, after the plaintiff had shown what was clearly, and what was admitted to be, a prima facie title to the property in dispute, testimony was offered by the defence to establish a twenty-one years’ adverse possession, which under our statute of limitations gives a complete right under ordinary circumstances. Objection was made to the admission of the testimony on the ground that it was immaterial, because, even if true, even if the testimony for the defence uncontradicted, established the fact that the defendants had been twenty-one years in adverse possession of this property, from 1862 down to the bringing of suit, it was alleged it still constituted no defence as against the plaintiffs title. But, at that time, I am free to say my impression was the other way, after the decision was read to me by the counsel for the defence; and, having serious doubt about it, to say the least, the only safe way was, for the present, to rule it would constitute a proper defence and allow the case to go on. But upon subsequent reflection, and after the suggestion of the counsel for the plaintiff as to differences in this case arising out of the fact that in 1884 the commonwealth had recognized the title of the plaintiff by giving him a patent which conveyed all the rights of the commonwealth to him at that time, and in view of the cases that have been cited, 1 began to think there was probably a serious difficulty in the matter; and after last night’s consideration and examination of the authorities, so far as I have been able to get hold of them, and in the limited time I have had, I have come to the conclusion the objection to the testimony was well taken. It is therefore unnecessary to take the time to support an alleged defence which, when it was all in, I would be compelled to tell the jury could not avail the defendants. I therefore told the counsel this morning that even if the defendants proved all that they say they could prove, the plaintiff was entitled to the property; and the case has been such that [it is now my duty to say to you that under the testimony in the case the plaintiff is entitled to a verdict, and that the alleged defence of the statute of limitations will not avail the defendants ; that, as it may be good, is good, as between the parties themselves, if neither party had obtained a patent from the commonwealth, yet, the patent having been obtained in 1884, and notwithstanding the fact the defendants may have — and for the present we assume they did have — an adverse possession of this property for more than twenty-one years before the suit was commenced, yet as the case stands now, the plaintiff claiming by virtue of his survey and warrant previously, and bis patent obtained in 1884, your verdict must be for the plaintiff for the land described in the writ.] 8 The point which has been put is this: The plaintiff respectfully requests the court to charge the jury as follows: That the statute of limitations set up by the defendants as their defence, will not run against the plaintiff’s title perfected by patent acquired from the commonwealth in 1884 under a prior warrant and survey, and therefore the verdict of the jury must be for the plaintiff. This point is affirmed, and at the instance of the defendants this bill of exception sealed.1 Judgment having been entered upon the verdict returned in favor of the plaintiff, the defendants took this writ, assigning for error : 1. The affirmance of plaintiff’s point.1 2. The part of the charge embraced in [ ] 8
118 Pa. 128Appeal of Campbell (1888)
FROM THE COURT OE COMMON PLEAS OE INDIANA COUNTY. No. 210 October Term 1887, Sup. Ct.; court below, No. 41 June Term, 1885 (Ex. D.), C. P. In the distribution in the court below of the proceeds of the real estate of James W. Chambers, sold at sheriff’s sale to the execution number and term stated, a contention arose between Robert Campbell and others, lien creditors. On March 4,1875, an amicable judgment to secure the purchase money of real estate, in the deed for which the wife of Robert Campbell had not joined, was entered in favor of Robert Campbell against James W. Chambers, for $2,900, payable $900 April 3, 1875; $1,000 April 3, 1876; $1,000 April 3, 1877; the whole sum to bear interest from April 3, 1875, to be paid annually, “ with leave to issue execution to enforce payments as they respectively fall due, except as to the payment that falls due April 3, 1877, on, which no execution shall issue unless the said plaintiff, Robert Campbell, shall fully perfect and. complete his deed, bearing even date herewith, in respect to the interest his present wife may now have or in the future may have in regard to the real estate above mentioned; but this restriction shall not deprive the defendant of any legal right in regard to the payment of the same.” On January 12, 1880, to No. 54 March Term 1880, a scire facias was issued to revive said judgment, when, on February 16, 1880, the defendant filed an affidavit of defence setting out, substantially, that the judgment had been confessed upon the terms stated; that certain payments had been made on account thereof; a tender in 1878 of $1,100 in full payment of the balance unpaid; that the plaintiff’s wife was still living and he had entirely failed to deliver a deed conveying his wife’s present and future interest in the land purchased; and, in addition, a number of judgments in attachment suits against said Campbell with the defendant as garnishee, in which the moneys attached would in amount exceed the sum owing by the defendant. “ On June 22, 1880, on application of plaintiff’s attorney, judgment for want of affidavit of defence for $1,313.32 and costs of suit.” On December 8, 1884, to No. 13 March Term 1885, a scire facias was issued to revive the foregoing revived judgment, and the writ being duly served on the defendant and on Joseph Bowman, terre-tenant, on February 21,1885, judgment was entered for want of affidavit of defence for $1,688.66, and costs. On March 7,1885, petitions were presented and orders were made, filed to the records of both said judgments, and rules granted to show cause why each of them should not be opened and defendant let into a defence. On June 12, 1885, the rule granted in No. 54 March Term 1880 was changed to a rule to show cause why the judgment should not be set aside. The sheriff’s sale of the land bound by said judgments having in the meantime taken place, on June 12, 1885, an auditor was appointed to distribute the proceeds, and the auditor was “ directed to ascertain and report if any balance, and, if so, how much is payable to the judgment of Robert Campbell to No. 18 March T. 1885, and if any amount is payable to said judgment to report the terms and conditions upon which the same is to be paid.” The auditor, Mr. D. B. Taylor, filed a report in which he found the foregoing facts, and, discussing the power of an auditor, charged with the distribution of the proceeds of a sheriff’s sale to lien creditors, to inquire into the validity or regularity of a judgment lien: Thompson’s App., 57 Pa. 177; Meckley’s App., 102 Pa. 542; Malone’s App., 79 Pa. 481; Woods v. White, 97 Pa. 227; found that, under his appointment the validity of the judgment to No. 13 March Term 1885, and the amount due thereon, had been referred to him for consideration, and held that the affidavit of defence filed by the defendant to the first scire facias was clearly insufficient to prevent judgment of revival and might have been treated by the court as a nullity : Huber v. Commonwealth, 11 W. N. 496; that the judgment was regular and stood unquestioned till the second scire facias was issued and judgment entered thereon, which judgment was therefore not to be disregarded in the distribution; that the provision in the judgment that “ this restriction shall not deprive the defendant of any legal right in regard to the payment of the same,” did not confer upon Chambers the right to make the tender of 1878 to Campbell, in order to stop the interest, upon a condition which he knew was impossible for Campbell to perform: Burk’s App., 75 Pa. 146; and therefore the tender did not affect the judgment in the distribution: Williams v. Bentley, 27 Pa. 302; Cornell v. Green, 10 S. & R. 17; Sherdine v. Gaul, 2 Dall. 190. The auditor found the amount due upon the judgment to be $1,630.23, and directed that sum to be paid into court to abide the result of said execution-attachments, and after payment of such of said attachments as might be entitled thereto, the balance if any to be awarded to Robert Campbell. To this report other lien creditors filed exceptions, and on argument, the court, Neale, P. J., 33d district, holding special term, filed an opinion and decree, inter alia, as follows: The material question in the present controversy arises at this point. In its determination two considerations are presented : First, as to the ordinary power of the auditor appointed merely to make distribution, to determine the validity of the Robert Campbell judgment as thus entered. Second, as to his power under the terms of his appointment in this particular instance. In the first aspect the inspection of the record at once conveys notice of the fact that a judgment, wholly irregular on its face, was entered upon the first scire facias. This notice is emphasized by the offer of the defendant’s counsel to show the flagrant irregularity, by the rules of court applying to the taking of judgment, under the affidavit of defence rule, and the pending application and rule to strike off the judgment. The power to take judgment for want of an affidavit of defence is of statutory creation, promotive of a speedy determination of causes and in the interest of the plaintiff; but it is in derogation of common right and therefore must be strictly pursued. Where no affidavit of defence has been filed, and in a proper case, judgment is of course. Or where an affidavit of defence has been filed and the same is deemed insufficient, judgment may be had upon motion for want of a sufficient affidavit of defence, according to rule of court: Endlich, Affidavits of Defence, 104, § 86 (/); subject, however, to the defendant’s right to file supplemental affidavit before the rule is called for argument. The granting of the judgment is thus taken from the party and becomes a judicial act. Even the case of Commonwealth v. Huber, 11 W. N. 496, cited by the learned auditor in support of his action, in the opinion of the court goes only so far as to say that the court may treat the affidavit of defence as a nullity. The utmost that can be drawn from that case is that when a paper is filed purporting to be an affidavit of defence, when it in fact discloses no such character, it may be treated as a nullity. In the case .cited the court might well have sanctioned such procedure. But, certainly, under the affidavit of defence law it was never contemplated, and never can be, that the functions of a court to determine an issue of fact or of law could arbitrarily be assumed by the very part}’ in interest; that he should vest himself with the power of determining the sufficiency or insufficiency of an affidavit of .defence, which in so many instances' approach, either way, so very close to the borderline, and very often present intricate questions for judicial or legal interpretation. In the present case, if the application were made in open court, it was without a rule being asked for and was misleading ; as the application was for a judgment “ for want of an affidavit of defencein effect a false declaration “ that no affidavit of defence had been filed,” and therefore the allowance of judgment would follow as of course. Consequently it should be regarded in no better light than as an extra-judicial or office judgment. In no event, we think, could the paper filed be treated as a nullity. It purported to be an affidavit of defence ; was sworn to as such. It alleged a defence to the whole of plaintiff’s claim, and specified the nature of the defence. The court alone could determine its sufficiency. “ For a judgment cannot be taken for want of an affidavit of defence if there is one: ” Wilson v. Hays, 18 Pa. 357. “ Where an affidavit of defence has been filed judgment cannot be taken for want of one: ” Endlich, Affidavits of Defence, 474, § 625. The principle is also stated in Gannon v. Fritz, 79 Pa. 303, and O’Hara v. Baum, 82 Pa. 416. Outside of the authority contained in the appointment, .the learned auditor had the right to inquire into the regularity of the judgment: Appeal of 2d Nat. B’k of Titusville, 85 Pa. 530. Therefore the first and only conclusion in this case must be that this judgment as entered was wholly and fatally defective. But in the second aspect, if the learned auditor was clothed with the authority of the court of disposing of the questions raised by the pending rules to open and strike off, and could exercise the power of determining the whole case, no other course was open to him than to make the rule to strike off the judgment absolute, unless the laches of the defendant furnished a sufficient reason for not doing so. Yet, up to the time of the service of the scire facias to No. 13 March Term 1885, he was guilty of no laches. He had a right to presume upon the sufficiency of the affidavit of defence and to await further action and warning in the case when it was filed. It is true that whilst the judgment entered to No 54 March Term 1880, although wholly irregular, might under certain circumstances be treated as simply voidable and therefore sufficient to support the judgment entered at No. 13 March Term 1885. This view would be tenable in the absence of any application on the part of the defendant himself to avoid the judgment entered at No. 54 March Term 1880. But the record discloses an actual application on the part of the defendant to set aside this judgment and the allowance of a rule. Hence in passing upon the effect of this rule, and bound as a court would be, if the learned auditor found the affidavit of defence in fact an affidavit of defence, although insufficient, he must have pronounced the judgment, as taken, void. Therefore in this connection we refer to the affidavit of defence again, and find that it alleges, under oath, a defence to the whole of plaintiff’s claim; that it specifies payment of the two first payments, which may or may not have been those entered and acknowledged; an actual payment upon a judgment entered against Campbell that was an incumbrance; the tender of payment of the remaining instalment, which a court would doubtless have determined insufficient; that judgment had been recovered against him as garnishee in an attachment, and that other attachments, aggregating a large sum, had been served upon him. Upon an issue joined would not these facts constitute a defence, both in diminishing the amount and modifying the judgment ? Why should the defendant be precluded in the right to set them up as substantial matters of defence ? Can it be questioned that the attachments, if valid, would bind the interest of Campbell in the land conveyed ? How far the defendant would be precluded from defalcating the amount of such attachments or judgments upon them after an issue joined in the scire facias and judgment thereon if he had failed to plead them; or to what extent he would have been estopped in so doing upon a judgment in default for want of an affidavit of defence, and more particularly after a second judgment of revival, such as this record presents, we do not now determine ; but certainly the suggestion of these facts conclusively shows that the affidavit of defence filed may have been substantial, at least more than a mere nullity. Therefore, we think, since the learned auditor found himself fully empowered to determine the whole question, it was his plain duty to pronounce the judgment entered at No. 54 March Term 1880, wholly irregular and to have sustained the rule to set it aside, which is now done. But as the scire facias was issued in the lifetime of the original lien, we think it sustained the lien of the original judgment for five years from the date of issuing: Lichty v. Hochstetler, 91 Pa. 444; Fulton’s Est., 51 Pa. 204; Hunter v. Lanning, 76 Pa. 25; Meason’s Est., 4 W. 341. Hence up to Jan’y 12, 1885, the plaintiff had time and opportunity to perfect his judgment. He failed to do so but treated it as in all respects valid, and on Dec. 8, 1884, issued scire facias to No. 13 March Term 1885, to revive, which was duly served on Dec. 19, 1884, and judgment by default for want of an affidavit of defence taken on Feb’y 21, 1885, in due form. On March 7,1885, the defendant obtained a rule to open this judgment and also judgment entered to No. 54 March Term 1880. Subsequently on June 12, 1885, the rule as to the last named judgment was amended to a rule to strike off, etc. It cannot be claimed that the grounds for opening the judgment at No. 13 March Term 1885, so far as they excuse the default, possess any merit whatever. The simple fact that his attorney is dead was certainly insufficient. But in view of the impregnable grounds for setting aside the judgment at No. 54 March Term 1880, and that being done, we cannot see how the subsequent judgment depending upon it can be sustained, notwithstanding the neglect and laches of the defendant. “ The revival of the original judgment is but a continuation of it. In form the proceeding by scire facias is a distinct action, but in fact it is not so. Satisfaction of the original judgment is a satisfaction of the judgment in the scire facias. So a reversal of the former has the same effect upon the latter : ” Thompson, J., Eldred v. Hazlett, 38 Pa. 32; Buehler’s Heirs v. Buffington et al., 43 Pa. 279; Dorrance v. Scott, 3 Wh. 314. By thus disregarding the judgment of Robert Campbell and disallowing it in the distribution, the fund so appropriated by the learned auditor must be applied to the lien judgments that were liens at the time of the issuing of the execution and sale of the property. We do not see that the attachments can be regarded now in the light of liens, and therefore while they still may remain valid as claims against Chambers to the extent of his actual, indebtedness .to Campbell, we cannot recognize their right to participate in the fund now for distribution in preference to the judgment liens, which appear sufficient to exhaust all the fund. Therefore, in view of the position which we feel constrained, to take, the exceptions, so far as controlled by this opinion, are sustained, and in so far the report of the learned auditor is reversed. And it is further hereby ordered and decreed that the amount set apart to the Robert Campbell judgments be applied to the judgments next in priority, according to the schedule of distribution annexed to the report. From the decree thus made this appeal was taken, the said decree being assigned as error.
118 Pa. 138Appeals of the Forest Oil Co. (1888)
EROM THE DECREES OE' THE COURT OE COMMON PLEAS OE WASHINGTON COUNTY. Nos. 211, 212 October Term 1887, Snp. Ct.; court below, Nos. 95 A. D., 69 E. D., August Term 1887, C. P. A judgment for $1,149.50, in favor of Rebecca Nesbit, for use of J. P. Miller, against R. D. Martin and W. W. Martin, entered to No. 95 January Term 1883, was a lien upon a tract of land owned by R. D. Martin in Buffalo township. On an execution issued upon this judgment a levy had been made and a sheriff’s sale of said land advertised to take place on Monday, August 15, 1887, when, after an offer, the sale was adjourned until 1 P. M., Wednesday, August 17th. On the last named day, before the hour of sale, on petition of The Forest Oil Co., The Natural Gas Co. of West Ya. and A. W. Mellon, presented at chambers, the court ordered a stay of the sale until 9 A. M. on Friday, August 19th, when the petitioners would be allowed to apply in open court for a rule upon the execution-creditor to show cause why he should not accept the amount of the debt, interest and costs on the said execution and assign the same to the petitioners.- On August 19, 1887, the said petitioners together with the Fisher Oil Co., presented a petition, all the facts set forth in which were as follows: That on February 4, 1884, R. D. Martin, defendant in said judgment, by articles of agreement conveyed the tract referred to, to C. D. Robbins, for tffe purpose of developing for oil and gas, for a period of twenty years from the date of said agreement, which was recorded on May 4, 1886, in deed book 136, p. 153; and that by divers good and lawful conveyances the petitioners were the joint owners of said leasehold estate, and had expended large sums of money in developing the same. That before the recording of said lease the judgment referred to was entered as a lien on said land belonging to R. D. Martin, as well as against W. W. Martin; and that on July 28, 1887, the use plaintiff released the lien thereof from the land of W. W. Martin, allowing it to remain against the farm of R. D. Martin now occupied by the petitioners, and at once the writ of fieri facias referred to was issued upon said judgment, ostensibly for the purpose of collecting the amount thereof, with interest and costs thereon; by virtue of which writ the sheriff had levied upon the farm of R. D. Martin, occupied by the petitioners, and had advertised a sale thereof on August 15, 1887, without notice to the petitioners, as terretenants or otherwise, which sale had been adjourned to 1 p. M. on August 19th. That the petitioners, for the purpose of protecting their vested estate in said land, on August 17,1887, tendered to the use plaintiff in said judgment the full amount of the debt, interest and costs thereon, and requested that the said judgment be assigned to them, without recourse, the petitioners intending, had such assignment been made, to stay execution thereon and prevent a sale of said land which would have divested their estate therein, which tender and assignment the use plaintiff refused and denied; and that the petitioners were informed and believed that the purpose of the said execution was not merely the collection of the debt and interest secured by the said judgment, but the use of it as a means of destroying the estate and divesting the title of the petitioners in said land. That the sale of said property under said writ would be greatly injurious to the petitioners, jeopardizing their title to said leasehold, since, to retain their estate therein, they would be compelled to pay an exorbitant price for the land divested of liens; that they were ready and willing to pay the amount of the debt, interest and costs upon said judgment and writ into court, and also any other debt, interest and costs, secured by judgment or otherwise as a lien against the land prior to the recording of the lease to C. D. Robbins and in existence as a lien when said fieri facias was issued, on being subrogated to the rights of such lien creditor. Wherefore the petitioners prayed: 1. That the use plaintiff in said judgment be compelled to receive the money due on said judgment, with costs, and assign, the judgment. 2. That said execution be stayed till the use plaintiff execute such assignment on receipt of said money. 3. That an order be made directing that the petitioners, on paying to the sheriff or into court the amount of said judgment and costs, be subrogated to the rights of the use plaintiff. 4. Other relief. On the presentation of this petition, the use plaintiff appeared by attorneys and objected. The Union Central Life Ins. Co., a creditor in a judgment subsequent to the execution of said lease, appeared by attorney aiid moved the court to refuse a rule and to dismiss the petition on the ground, (1) that petitioners were guilty of laches; (2) they had not set out a copy of their lease; (3) they had not shown grounds for equitable relief. After argument, the court made a decree refusing a rule and dismissing the petition, to which the petitioners excepted. On August 23, 1887, the same petitioners presented in open court another petition, setting forth the same facts averred in the former one, and in addition thereto the following: That after the recording of the said lease between C. D. Robbins and R. D. Martin, other judgments, identified by number and term, were entered as liens against said land; on which executions to Nos. 9, 56 and 57, August Term 1887, had been issued prior to the execution heretofore referred to; that on August 19, 1887, to winch day the sheriff’s sale had been adjourned by the order of the court, the petitioners, in order to prevent a sale, tendered to the sheriff the full amount of the debt, interest and costs on all the writs in his hands, which tender at the suggestion of the use plaintiff in the judgment first referred to was refused; that at the hour of sale, the petitioners read a notice, a copy being attached, notifying bidders of said tender and that an application would be made to have the sale set aside, but that the sheriff had proceeded and had sold the lands levied upon to James Kuntz, Jr., who was present at the reading of said notice and cognizant of the facts averred in this petition. Wherefore, the petitioners prayed: 1. That the said sale be set aside. 2. That the sheriff be compelled to receive the amounts due upon the executions in his hands and the petitioners be subrogated to the rights of the execution-plaintiffs. 3. That petitioners might pay into court the amounts due upon said executions and that the same be stayed until the plaintiffs assign them to petitioners. 4. That the sheriff be restrained from receiving the purchase money from the purchaser, or from distributing it to the lien creditors of R. D. Martin. 5. For other relief. This petition was ordered to be filed. On August 24, 1887, the petitioners moved the court that the decree filed on August 19th, dismissing their petition for subrogation and refusing the rule thereon, be lifted and set aside, and instead thereof a rule be-granted, founded upon the averments of said petition, upon the use plaintiff, R. D. Martin, defendant, as well as upon all other lien creditors of said R. D. Martin. The same day, the petitioners were allowed to amend their petition filed August 23d, by adding a copy of the lease from R. D. Martin to C. D. Robbins, and a supplemental petition was filed, moving for a rule, upon the facts averred in said petition, upon the lien creditors of R. D. Martin, the sheriff and the purchaser, to show cause why the prayers of said petition should not be granted. The same day, certain of the lien creditors and the purchaser at the sheriff’s sale objected to the granting of said rules and moved the court to take the acknowledgment of the sheriff’s deed. The copy of the lease was not filed until August 26, 1887. On August 26, 1887, the court, McIlvaine, P. J., delivered an opinion, and, after discussing the cases of Kyner v. Kyner, 6 W. 227; Hunter’s App., 40 Pa. 194; Lyon’s App., 61 Pa. 15, ruled that the decree of August 19th was not erroneous in the light of the facts set forth in the original petition, or in the amended petition of August 23d; and, refusing the petitioners’ motion to set aside the said decree as well as their motion to set aside the sheriff’s sale, confirmed the sale and received the acknowledgment of the sheriff’s deed to the purchaser. Thereupon the petitioners took these appeals, assigning for error the decree refusing the rule upon the petition for subrogation and the decree refusing to set aside the sheriff’s, sale, etc.
118 Pa. 148Ireland v. Bagaley (1888)
EBBOB TO THE COUBT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 255 October Term 1886, Sup. Ct.; court below, No. 69 January Term 1883, C. P. The case below was an ejectment instituted November 2, 1882, by Ralph Bagaley against John T. Ireland to recover a parcel of ground fourteen feet wide and twenty feet deep, along the line of the Allegheny Valley Railroad, in Penn township, part of a larger tract • of twelve acres, the title to about four acres of which was in dispute. A rule of the court in which the action was to be tried provides: In all actions of ejectment hereafter brought it shall be the duty of the plaintiff, either by himself, his agent or attorney, to file in the office of the prothonotary of this court.on or before the first day of the term to which the writ is returnable, a statement containing a description of the land together with the number of acres and the proportion thereof which he claims, and an abstract of the title on which he relies for his recovery, whether the same be in writing or otherwise; and where the same is a matter of record, a reference thereto. And the defendant shall plead not guilty and enter his defence, if any he hath, for the whole or any part thereof before the next term; and at the time of entering his plea he shall by himself, his agent or attorney, file a statement containing an abstract of the title or facts on which he relies for his defence, whether the same be.in writing or otherwise; and where the same is matter of record a reference thereto together with a specification of so much of the plaintiff’s title as he denies, and so much thereof as is not denied shall be deemed admitted; and at the trial the evidence shall be confined to the facts respectively denied by the parties. Under this rule the plaintiff filed an abstract of title referring in each item to the place of record of the conveyance or will, showing title in the plaintiff from" the commonwealth down: 1. Patent, 1787, to Thomas Martin. • 2. Deed, 1794, Thomas Martin to Peter Bennett. 3. Deed, 1800, Peter Bennett to Thomas May. 4. Will, 1842, Thomas May. > 5. Deed, 1854, Thomas May’s Execrs. to Isabella May Stewart. 6. Deed, 1859, Isabella May Stewart et al. to Thomas Dickson, F. C. Negley,et al. 7. Deed, 1859,-F. C. Negley to Thomas Dickson et al. 8. Deed, 1864, Thomas Dickson et al. to Samuel M. Kier, John Foster and James M. Kier. 9. Deed, 1871, James M. Kier to Samuel M. Kier. 10. Deed, 1871, Samuel M. Kier to Kier and Foster. Thence by divers conveyances to plaintiff, concluding as follows: With notice of mesne profits up to date. Actual and adverse possession by parties named in above abstract of title of the ground in dispute for more than sixty years; parties holding after and under each other in the order of their purchases as set forth in said abstract continuously for the above period.— The abstract of title filed by the defendant was as follows: 1. George Sutton, by sheriff, to Edward Pedan. Deed dated January 30,1825; recorded etc., for 300 acres embracing the land in dispute. 2. Edward Pedan et ux. to James Ireland. Deed dated November 14, 1885, recorded etc., for land embracing the parcel in dispute. 3. That James Ireland entered into possession Nov. 14,1835, of the said land in dispute amongst others adjoining, and he held, occupied, used and enjoyed the same until the time of his death in 1874. That the defendant and seven others are the children and heirs at law of the said James Ireland, who died intestate, and they have been in undisputed possession of the said land with other lands since his death. That all the allegations made, as appear by the brief of the plaintiff inconsistent herewith, are expressly denied as false so far as the land in dispute is concerned. The names of Géorge Sutton and Edward Pedan did not appear in the plaintiff’s abstract as haying been at any time connected with the title shown thereby. At the trial on April 9,1885, the plaintiff put in evidence his abstract of title, following with evidence as to possession and occupancy of the lot in dispute. The defendant offered in evidence his abstract of title and .called R. L. McCully, a surveyor: Defendant’s counsel proposes to prove by the witness on the stand and others the lines of the tract of land belonging to the plaintiff in this case; the lines of the Ireland tract as appear upon the ground, for the' purpose of showing that the plaintiff has no title by possession or otherwise of the tract of land in dispute; this to be further followed by proof of possession on the part of James Ireland and his heirs, who claim under him, of the land to which the plaintiff claims title. Objected to: So much of this offer as tends to prove possession by the defendant is not objected to, but' the remainder of the offer is objected to as incompetent and irrelevant under the pleadings. By the court: By the abstract of title, under our rule of court, the defendant admits that the piece of land in dispute is embraced within the deeds set forth in the plaintiff’s brief of title and that the plaintiff has a. paper title to the same; therefore, any evidence disputing the fact that the piece of land is within the plaintiff’s deed is not proper under our rule of court. The defendant’s abstract of title sets forth his title as against the plaintiff by adverse possession and the evidence must be limited to that question. Thus far the objection is sustained to the defendant’s offer.1 John T. Ireland, called for the defendant, testified that he was with Mr. McCully when he ran the lines of the May tract: Defendant’s counsel proposes to prove by the witness on the stand that he was present with the surveyors who surveyed the line of the May tract at different times in 1882,1888 and 1884, or thereabouts, and proposes to prove by the witness just where the lines of the May tract are upon the ground in Penn township, and proposes to prove further that the plaintiff has no other title, and is not the rightful owner of any other land than that embraced within the lines of the May tract; this for the purpose of showing that his, the witness’s father, and himself claiming under him, have had'adverse, continued, hostile, notorious and peaceful possession of the tract of land between the May line as appears by monuments on the ground on the south, the Huey tract on the west, the Allegheny river on the north, and the Pedan, now Boyd tract, on the east. This to be followed by proof that Isabella May Stewart never had possession, of any kind, of the tract of land described in the deed dated June 24, 1859, and that the said tract of land described in deed of said Isabella May Stewart to Dickson, Negley & Co., is not a part of the land conveyed by Peter Bennett and wife to Thomas May, nor of the tract conveyed by James Caruthers and Thomas Davidson, executors of Thomas May, deceased, to Isabella May Stewart, by deed dated June 2, 1854. This is to be further followed by proof that Isabella May Stewart or Dickson, Negley & Co., Dickson Stewart & Co.,1’ Kier, Foster & Kier, the New York & Cleveland Gas Coal Co., Robert Arthurs or Ralph Bagaley, never had possession or title to said tract of land, adverse to defendant; this for the purpose of negativing any title in said plaintiff save as may appear by record through deeds. Objected to: On the ground that the defendant has admitted in his pleadings that the plaintiff has the title to the land in dispute, and therefore no evidence tending to show that the lines of the land in dispute are other than that which is specified in plaintiff’s deed, as contained in the abstract of title, is relevant. It is also further objected that so much of the offer as tends to show that the plaintiff has not title to other lands than the land in dispute, is irrelevant. So much of the offer as proposes to show that the plaintiff had not possession of the property or that defendant had possession is not objected to, but the whole offer is objected to for the purpose stated, and that is to show that the plaintiff had no title to the property, which title has been admitted, and as incompetent and irrelevant. By the court: Under our rule of court and the abstract of title filed, the defendant admits the record title of the plaintiff to the property in dispute; he does not controvert the chain of title set forth in plaintiff’s brief and does not deny that this, property is within the plaintiff’s deed, but sets up, substantially, a title to the property by adverse possession for more than twenty-one years prior to the bringing of this suit. The question of the plaintiff’s record title is not in issue in this case and all evidence as to lines of the property is irrelevant. The plaintiff has shown that on the little piece of property now in dispute the defendant has a house; that that house stands on the ground where the coal tipple stood, so that the identical locality cannot be called in question; it is identified so clearly that there cannot be any dispute as to what the piece of property is, and under the pleadings in the case the defendant i& limited to proving an adverse possession of that piece of property ; therefore, the offer as made is not admitted, but any evidence that shows the actual possession of the property in dispute will be received.8 Defendant’s counsel proposes to prove by the witness on the stand, and others to be hereafter called, the boundary lines of the tract of land belonging to the plaintiff. This to be followed by proof of the monuments on the ground showing just where the lines of the lands of the plaintiff are, with additional proof that the tract of land described in the prsecipe in this suit is not embraced in the boundaries of the lands belonging to the plaintiff. To be further followed by proof that Isabella May Stewart never had possession of the land in dispute. That Dickson, Negley & Co. were in .possession of the land in dispute by virtue of a lease from James Ireland, the ancestor of the defendant, who occupied said tract of land until 1864 or thereabouts, when they disposed of said tract of land inter alia to Kier, Foster & Kier, and afterwards the New York & Cleveland Gas Coal Co., who held -possession of the same until 1867 or 1869,' and the defendants have had continual, adverse, hostile, notorious and peaceable possession of said land in dispute, with other lands, from that to the present time. Objected to : first, that the first part of the offer which proposes to show the boundaries of the plaintiff’s land is irrelevant, for it is not the land in dispute, and there is nothing in the offer specifying what land is proposed to be covered. Ifr however, it is the land in dispute, it is clearly irrelevant, because the pleadings admit that the plaintiff’s title covers the land in dispute. All that portion of the offer which proposes, to show the lines of the May tract are objected to as irrelevant for the same reason. All that portion of the offer purporting to show that either the plaintiff or his ancestors in title took the property by lease from the defendant or his ancestors, is irrelevant because the defendant had admitted, by admitting plaintiff’s chain of title, that the plaintiff claimed under the title set out in his abstract, and the whole offer is objected to as incompetent, irrelevant and incomprehensible, but we do not object to any portion of the offer tending to show adverse-possession. Objections sustained for the reasons given as to tbe last offer. The defendant may be allowed to show that the house is not on the property where the coal tipple was ; or to show that they have had possession of the property where the coal tipple stood for twenty-one years or more before the bringing of this action. The defendant could have called in question the title of the plaintiff by his abstract, but, not having done so, is limited to the defence set up in the abstract of title.3 The case being closed the court, White, J., charged the jury’ [This controversy is about a small piece of land, 14 feet wide and 20 feet deep, on the upper side of the Allegheny Valley Railroad, some distance out of the city. Courts have ■adopted rules of practice to facilitate the dispatch of business, and to limit and define the issue to be tried in cases brought before them. We have a rule on the subject of ejectment ■actions, and the object of the rule is to make certain and definite what issue is to be tried, thus saving a vast amount of useless testimony and waste of time. This rule provides that the party who brings the action to recover possession of land must define its location so that it can be clearly known. He must also file an abstract of the title, showing his chain of title, which abstract is notice to the other side. That rule requires the defendant also to file an abstract of his title, and in that way notify the plaintiff exactly what is ■the issue to be tried; and it is after these abstracts are filed that the case goes to trial. And the rule of the court provides that no evidence shall be received at the trial except in reference to the matters directly in controversy, so that whatever is not specifically denied shall be deemed admitted. Now in this case the abstracts of title are admitted in evidence for the purpose of showing what admissions are made, and it is for the court to say what these admissions are. The abstract furnished by the defendant does not controvert any one of the deeds set forth in plaintiff’s abstract. That is an admission of the chain of title under which the plaintiff claims. It does not controvert that the land in dispute is covered by the plaintiff’s deed and within the chain of his title, and thus that iact is admitted. Hence I have in this case deemed it improper to go into the controversy as to where the lines between these tracts are. The defendant referred in his abstract to two or three deeds, one made in 1835, and claims that he was in possession of the property from 1835 down. Now, if that was true he would have a good title; but I understand that that abstract is simply claiming by the adverse possession, and simply denying the possession of the plaintiff; not controverting the plaintiff’s record title, nor that this property is in the plaintiff’s deed and covered by the deed that he received. I have so ruled, and I have said that the only question for the jury to pass upon is, Has the defendant been in adverse possession of this property for twenty-one years before this suit was brought ? . . . The defendant, I believe, has admitted in this case that this piece of property is in the plaintiff’s deed, and that the plaintiff would have a good title, except that he (the defendant) has held possession of it for twenty-one years and more under the chain of title that he claims. Now, what is the evidence on that point as to the possession of this property ?. Mr. Dickson testifies that in 1858 he, and those with whom he was co-operating, purchased two acres in extent there; that this land in dispute was a part of the two acres ; that they were operating coal works and that they built a coal tipple on this property. They got their deed for it in 1859 and operated the coal works until about 1864, if I remember correctly, when they sold out to Kier, Foster & Kier, and that that firm continued to use it as a coal tipple for three or four years after that, until the coal was exhausted. Then Mr. Arthurs testifies that about 1872 he became interested in the adjoining property, and afterwards, I believe, became interested in this; but in 1872, when he first became acquainted with it, this identical lot had on it the remains of the old coal tipple, and he says that he and Mr. Bagaley, I believe, used or occupied this property for some time, or at least that he saw it frequently until about 1882, when he became the purchaser, and that down to 1880 it was vacant, except as occupied by the coal tipple and perhaps fenced in, or- part of it fenced in, there being a large rock there which I think he said they had to build their fence around. That in 1882 he saw this house on the property. The rock had been excavated and the house put where part of the rock stood. The defendant admits that he built the house in 1880. Now, what evidence is there that the defendant, or any person under whom he claims, had this property in possession at any time prior to 1880 ? The deeds they refer to may embrace it. That may be true. But the defendant admits that the lines of plaintiff’s deed embraced it, as I think from the abstract of title. But under the evidence we have here, if uncontroverted, the title in the plaintiff, it strikes me, would be good, even from the statute of limitations. If the jury believe that Dickson went into possession in 1858 under a purchase in that year, built a coal tipple upon it, got a deed in fee simple for it in 1859, and that they and those under them used it down to 1880, that would be twenty-one years adverse possession. But it is not on that ground that the case is to be determined by the jury. It is whether the defendant has had possession of this property for twenty-one years continuously before the bringing of this action, and I do not remember any evidence of his possession of this little strip prior to 1880, and there is the positive evidence of Mr. Dickson that it was occupied by the coal tipple as far back as 1858 and on down until the Kiers ceased to operate, probably 1867 or 1868, and that the remains of the tipple were there until 1880, when the defendant put his house upon it. If you believe this testimony of Mr. Dickson and Mr. Arthurs, your verdict should be for the plaintiff.]4 The jury found for the plaintiff and judgment being entered the defendant took this writ assigning as error: 1-3 The rejection of the defendant’s offers.1 to 3 4. The entire charge of the court.4
118 Pa. 159Murray v. Weigle (1888)
2 OE ALLEGHENY COUNTY. No. 26 October Term 1887, Sup. Ct.; court below, No. 228 October Term 1885, C. P. No. 2. This was an ejectment instituted by Frederick Weigle, Priscilla J. Burlip and George Burlip, her husband, Laura Rector and Martin Rector, her husband, and Catharine Stevenson, against Thomas Murray and William Richards, to recover a lot of ground on Taust street, Pittsburgh.
118 Pa. 165Sewickley Borough v. Sholes (1888)
APPEAL FROM THE COURT OF COMMON PLEAS NO. 2. OF ALLEGHENY COUNTY. No. 27 October Term 1887, Sup. Ct.; court below, No. 237 April Term 1886, C. P. in equity. The borough of Sewickley is the owner in fee of about eighty-seven acres of land in Aleppo township, on which is erected a water-works, owned and operated by “ The Commissioners of Sewickley Water Works,” incorporated by the act of February 21, 1873, P. L. 147, and which is used exclusively for the supply of water to the inhabitants of said borough and vicinity. The company has no capital stock and pays no taxes either to the township or to the county. The water-rents received from the water supplied, less the operating expenses, are paid into the borough treasury, and are then appropriated exclusively to the interest on the bonds of the company and to a sinking fund for their final payment, for which purpose the said income is insufficient. In 1886, the said township assessed taxes upon a part of said land, which did not embrace the water-works proper, but was a part from which a revenue accrued to the company from the sale of crops growing thereon; and to enforce the payment of said taxes a levy was made upon and a sale advertised of certain personal property belonging to the water-works and necessary for their operation. A bill in equity was filed by the said borough to enjoin T. M. Sholes, the tax-collector of said township from proceeding with fhe levy upon and sale of said property, and a preliminary injunction ordered. The cause coming on for hearing on bill, answer and a statement of facts agreed upon showing the foregoing, the court, Ewing, P. J., filed the following opinion and decree: The plaintiff admits that sufficient personal property has been levied upon to pay the taxes. Counsel for plaintiff, in open court, say that they desire a decision in the case regardless of the character of the property levied upon. That if the assessment is legal the borough will pay it. The pleading and facts show that an income and revenue is derived from the said water-works. This brings the case precisely within the rulings of the Supreme Court in the recent case of The County of Erie v. City of Erie, decided in 113 Pa. 368, in October of the present year. The decision is against the claim of exemption by the plaintiff. And now 23d of December, 1886, after argument and upon consideration it is ordered, adjudged and decreed, that the bill of complainant is hereby dismissed at the costs of complainant. Thereupon the plaintiff took this appeal, specifying that 1. The court erred in holding that plaintiff derives an annual income or revenue from its water-works similar to the case of The County of Erie v. The Commissioners, 113 Pa. 368. 2. The court erred in not holding the proviso to the act of May 14,1874, to be unconstitutional. 3. The court erred in holding that from the statement of facts submitted the law was with defendant, and in dismissing plaintiff’s bill.
118 Pa. 171Opening of C. Street, Verona Borough (1888)
CERTIORARI TO THE COURT OF QUARTER SESSIONS OF ALLEGHENY COUNTY. No 57 October Term 1887, Sup. Ct.; court below, No. 60 March Term 1885, Q. S. Misc. On June 80, 1885, the petition of A. M. Graver, G. P. Graver and others, was presented, showing that Michael Graver died on May 23, 1885, seized of a parcel of ground in the borough of Verona and that the petitioners were his widow and heirs: that by an ordinance of said borough, passed January 19, 1885, it was enacted that that part of C. street lying between Railroad avenue and Sixth street be taken for a public highway, that the same was thereby declared to be a public highway, and that the portion of C. street so directed to be opened was located upon said parcel of land and petitioners would suffer damage, etc.; that the borough of Verona was incorporated by the act of May 10, 1871, P. L. 705, and that by § 3 of said act, the act of April 8, 1848, P. L. 415, incorporating the borough of Birmingham and its supplements were extended to the borough of Verona, praying for the appointment of viewers to assess damages. Upon this petition the court appointed three viewers for the object stated. On September 12, 1885 (the order having been renewed at June term), the report of the viewers was presented, approved nisi and ordered to be filed. On November 25, J. P. Speer filed exceptions to said report: (1) That the court had no jurisdiction to appoint the viewers; (2)that the report was informal, defective and not in accordance with the statute; (3) that it was inequitable and unjust, because the damages, $1,500, awarded to the petitioners, and the benefits, $500, assessed against the exceptant, who was the only property owner against whom benefits were assessed, were grossly excessive. On December 5th, exceptions were filed by the borough of Verona, also, alleging the same grounds set forth in J. P. Speer’s exceptions, omitting that relating to benefits assessed. On January 23, 1886, J. P. Speer filed a petition for a review, setting out the same grounds in substance as in his said exceptions, and eo die a review was ordered and reviewers appointed. To this order for review, exceptions were filed by G. P. Graver et al., original petitioners: (1) That J. P. Speer had elected to proceed by his exceptions filed which remained undetermined; (2) that under the charter and laws applicable, the exceptant was not entitled to a review. Like exceptions were filed by the borough of Verona. On March 4,1886, a report of the reviewers was presented, filed, and on exceptions thereto, on August 4th, the matter was referred back to the reviewers to proceed anew and to report to September sessions. On September 10th, the second report of the reviewers, awarding to the petitioners for damages-$1,000, was filed and approved nisi. On December 3d, G. P. Graver et al., the petitioners for damages, excepted to this report of the reviewers on the grounds: (1) that by the act of April 21, 1873, P. L. 824, damages assessed for the opening of streets in Verona, laid out under the general plan or by ordinance, shall be paid within one year from the filing of the report of the viewers appointed to assess said damages; that C. street is a street on the general plan, and the viewers’ report of the damages sustained by the petitioners was filed September 12, 1885 ; (2) that under the charter of said borough there can be no review of damages assessed by the viewers; (3) that all said viewers were not freeholders as required by law; (4) that the amount of damages awarded to the petitioners by the report of the reviewers was grossly inadequate; (b) that the petitioner for the review was bound by his election to proceed by his exceptions filed to the report of the viewers. On February 10, 1887, said exceptions having-been argued, the report of the reviewers was confirmed absolutely, the costs of review and all proceedings subsequent thereto to be paid by J. P. Speer, the petitioner for the review. Thereupon G. P. Graver et al., petitioners for damages, took this writ assigning that the court erred: 1. In not confirming the report of the viewers. ' 2. In granting the review pending the exceptions filed to the report of the viewers. 3. In granting the review after the time limited by law. 4. In granting the review for the re-assessment of damages, and in confirming the report of the reviewers.
118 Pa. 176Appeal of Drennan (1888)
FROM THE DECREE OE THE ORPHANS’ COURT OE ALLEGHENY COUNTY. No. 62 October Term 1887, Sup. Ct.; court below, No. 90 June Term 1886, O. C. William M. Drennan of Elizabeth township, died on June 11, 1857, leaving a will dated February 27, 1857, duly probated, the disposing provisions of which were the following: First: After all my lawful debts are paid and discharged the residue of my estate, real and personal, I give, bequeath and dispose of as follows: I will that my sister Isabella remain with my family, sustaining the same relation as heretofore. I will and bequeath all my real estate and personal property thereon to my beloved wife Margaret and my son Thomas Ilenry, during my wife’s natural life by their complying with the following bequests, viz.: That they give to each of my daughters, Isabella Jane, Esther Mary and Emily D., now at home, an outfit equal to my daughter Martha Powers, supposed to be worth about three hundred dollars, at such time as they may wish to leave home, with the express understanding that they remain at home as now so long as they may desire. At the decease of my wife I will and bequeath the southeast side of my farm, starting at a thorn bush on Crawford andHowel’s corner, running in a straight line to west end of lane; thence down said lane to the southwest corner of the orchard fence; up said fence to the northwest corner; thence parallel with orchard fence about northeast to a large sugar tree, standing on a line of the said Thomas Patterson, north of the spring, with all the buildings thereon, to my son, Thomas Henry. I give and bequeath also, after my wife’s decease the west side of my farm as above divided, to my daughters, Martha (married to J. F. Powers), Isabella Jane, Esther Mary and Emily D., eqrial shares, with the express understanding- that my son, Thomas Henry, have the refusal of either share at .any time he may feel able to buy, at such price as five judicious men, chosen by parties, may put upon it. I will and bequeath to my four daughters, Martha Powers, Isabella Jane, Esther Mary and Emily D., my money now at interest, supposed to be about Nineteen or Twenty hundred dollars, to be equally divided between them, the two first named to receive theirs within or at the expiration of one year from my decease. The two last named to be kept at interest till they become respectively of age, the interest to be applied at the discretion of their mother for their benefit. The bequests made to my wife in the foregoing statement are in lieu of her right of dower. Should any difference of opinion arise in regard to any bequest, or part thereof, said difference shall be referred to a committee, composed of Ebenezer Henderson and John Patterson, whose decision shall be final. The words “fence up said fence to northwest corner,” interlined before signing. .Likewise, I make, constitute and appoint my said son, Thomas Henry, and my neighbor, David Nicholl, to be executors of this, my last Will and Testament. Letters testamentary upon this will were issued to Thomas H. Drennan, who filed his first account as executor to No. 15 October Term 1858, in which he was charged with the appraised value of the personal property of which his father died possessed, and was credited with the payment of debts and expenses and with the allotment to himself and his mother Margaret Drennan, of $865.31 each, thereby balancing the account. This account was confirmed absolutely. After the testator’s death, his family, then consisting of the accountant, his mother, three sisters then unmarried, and an aunt, continued living together at the homestead. Margaret Drennan, the mother, • died October 7, 1882, intestate. On October 18, 1885, upon the petition of the three sisters to No. 245 September Term 1885, a citation was awarded resulting in an order upon the executor on March 1,1886, to file an account of the personal estate of Wm. M. Drennan, deceased, within ten days. In this account the executor charged himself with the personalty of said decedent amounting to $1,730.62, and. claimed credit for many articles worn out or consumed, disbursements by way of outfit to two sisters, then married, a monument, counsel fees and allowance for services, etc., showing a balance due the accountant of $675.33. To this account exceptions were filed by the sisters: (1) that the accountant had not charged himself with interest on the amount in his hands from the date of his mother’s death. (2) That he was not entitled to any credits against the amount of the estate, charged. On the adjudication of this account and the said exceptions thereto, the court, Hawkins, P. J., on December 18,1886, filed the following opinion : The exceptions filed in this case raise the question of the liability of Thomas H. Drennan as executor of the will of William H.' Drennan, deceased, for certain personal property bequeathed for the lifetime of Mrs. Margaret Drennan, widow of said testator. The material facts are these: William H. Drennan died in 1857, leaving a will in which he provided as follows..... The personal property on the farm as above, consisted of farming implements and stock, which was inventoried at-$1,264.00, and household furniture, which was inventoried at $211.55. Thomas H. Drennan, who was appointed executor of this-will,* filed an account at October Term'1858, in which he-charged himself with the amount of the inventory, including-the personal property above mentioned, and claimed credit-inter alia as follows: “Margaret Drennan, as directed in will,, $865.31. Accountant retains to himself, $865.31.” It is admitted that these credits represent the personal property on the farm. The accountant took Mrs. Drennan’s receipt for the amount credited to her as above, but in fact never paid the same to her in cash, nor delivered the personal property in specie. The accountant took into his exclusive-possession and control the farming implements and stock which constituted part of this personal property, and kept them as; is customary with farmers up until his mother’s death in 1882-The household furniture was used in common by accountant and his mother and the family until, with the exception of a few articles, it was worn out. Since his mother’s death Thomas IT. Drennan has as administrator of her estate filed an inventory, and an account in which this personal property is not valued or embraced. Of the three daughters mentioned in the will as being at home, one married, received her outfit and left the fall after her father’s death, and another in 1862; and the third remains unmarried and in the old homestead. The accountant, besides the claims of credit to his mother and self, claims credit for the outfits given his sisters, for services as trustee for twenty-five years, $250, and counsel fees of counsel, $50, to which objection is made. The liability of accountant in this form of procedure depends upon the solution of three questions of law. 1. Was there intestacy in respect of the personal property on the farm after the death of Mrs. Drennan ? 2. How far was the confirmation of the first account of the executor conclusive of the conversion of the personal property and of distribution; and 8. Has the trust relation of the executor in respect of the fund continued since for those in remainder. 1. The intention of the testator seems clear to give Mrs. and Thomas H. Drennan no more than an interest in the personal property during the life of Mrs. Drennan. The gift is expressly limited to the life of Mrs. Drennan; the limitation is legal and should be made operative. The testator must be presumed to have meant what he said: Hancock’s App., 112 Pa. 532. So the gifts of the “ personal property,” having been blended with an effective devise of the farm for life, must logically have been expressive of the same purpose: Morrison v. Semple, 6 Binn. 98. The testator evidently connected in his mind the use of the farm with the use of the “personal property thereon,” as he had been accustomed to do. His primary object was to enable his widow to continue and maintain their home during her life; and with that view blended the farm and the “personal property thereon,” as with a breath, in one gift: Flowers v. Franklin, 5 W. 265. That he joined his son with the widow was in all probability intended as a continuance in and of this. The gift to the son was limited in duration, not by his own life, but by that of the widow, an estate per autre vie, and was consequently of less value. At common law, 4 Kent Com., 26, on the death of the tenant per autre vie before the cestuis que vie, he who first entered, although a stranger, had a right to hold until the death of the cestuis que vie. The estate was incapable of inheritance, and therefore of enlargement by operation of law. And the reason was because the land had no legal owner. For it did not revert to the grantee, as he had parted with all his interest as long as-the cestuis que vie lived. It did not escheat to the lord, for all his escheat must be of the absolute and entire fee. It did not belong to the grantee, for he was dead. It did not descend to the heirs, for there were no words of inheritance in the grant, nor could it vest in his executors, for they cannot succeed to a freehold. The land, therefore, hav-' ing no legal owner, the law of nature took place, and gave it to the first person who could enter on it as occupant: 1 Coke Inst., 626 and n. The statutes 29 Ch. II., c. 8,12 and 14 Geo. II., c. 20, s. 9, took away the rights of occupancy and made estates pur autre vie pass by devise or succession during the life of the cestuis que vie. But there is nothing in the nature of the estate, nor in those statutes, and no principle has been found in the books, which would enlarge that estate into an absolute ownership, because of the absence of a gift over. It has no analogy in this respect to the gift for the life of the beneficiary without a gift over, by which the idea of succession, and therefore of absolute interest, is naturally suggested. But tlie testator here did not have in contemplation the death of Thomas H. Drennan, but rather the termination of his interest in his own lifetime, and therefore had no order of succession in view. The event which was to terminate his son’s interest did in fact happen in his son’s lifetime; and the primary object which the testator had in view was then accomplished. If the interest of the son could not extend beyond that event, that of the widow could not; for by the express terms of the will they were made joint and of the same duration. The personal property on the farm was essential to the secondary object which testator had in view as to the first. There was no express disposition over; but it is obvious that it was connected in his mind with the farm; and it was as necessary to the use of that part of the farm which was given to the daughters as to that part given to the son, in remainder. Even were the construction doubtful, that must be adopted which is most in consonance with the statute of distribution. But it is said that the daughters’ “ outfit ” was charged upon and payable out of this “ personal property,” and that consequently when each received her “ outfit,” she received her share. If these outfits were charged on the “ personal property,” they were also charged on the real estate, of which there was an effective devise for life. The two classes of property having been blended in one gift for life, the natural inference is that the testator had the same intention in respect of them, and that the absence of a gift of the property over was an accidental omission. The furnishment of the “outfit” was intended rather as a condition upon which the property should be enjoyed for the life of the widow than a charge upon it. It is evident that the family relation was to be continued and maintained. The daughters by the express terms of the •will were to constitute part of the family until marriage, and of course contribute their share towards its maintenance. The continued use of the personal property in connection with the farm, was a necessary part of the plan. The testator had already provided an outfit for one daughter, and had made no charge against her on that account. The natural inference is that testator did not intend the provision for outfit as a mode of distribution, but simply as an incident of the family relation. Again: It was argued that, conceding the language used in this gift would be sufficient in ordinary cases to carry only a life interest, the personal property which is the subject of the gift is such as is consumable by use, and the gift is therefore absolute. The general rule here suggested is conceded, but its application is denied. “ Farming stock and implements of husbandry are not things quse ipso usu consumuntur within the rule.” The tenant for life is bound to keep them up to the condition and number in which he received them: Wms. Ex., 1196, etc.; Flowers v. Franklin, supra; and the reason for the exception would seem to be applicable to all personal property intended to be used in connection with land. But the rule is intended to relieve the legatee from the hardship of liability for consumable articles which he in fact consumes. Where, however, he elects to take the value of the articles instead of in specie, the rule is inapplicable. “ Money is not of that perishable nature which is necessarily consumed in the using of it:” Wins. Ex., supra. 2. There is an established rule of practice in this state that the absolute confirmation of an executor’s account is conclusive of what it contains within the scope of administration: Jones’ App., 99 Pa. 124. If this rule be applied to the first account filed by Thomas H. Drennan as executor, the “ personal property ” bequeathed for the life of Mrs. Drennan must be treated as having been converted by him into cash. It is so credited. It is true that the legatees for life would have had a right to receive this personal property in due course had they claimed it in specie. Upon exception to the account they could have had the cash credits stricken out, but the confirmation of the account is conclusive evidence not only of conversion, but of Avaiver of the right to claim it in specie. 8. But although the confirmation of this account was conclusive of items of distribution, such items are not even of themselves evidence of payment: Commonwealth v. Snyder, 62 Pa. 153. The case is therefore untrammeled by any adjudication in the question of distribution. The accountant having admitted that in fact no cash was paid by hinr corresponding to the credits mentioned, the fund upon the theory of the conclusiveness of the decree of confirmation of the account is still in his hands, and he is liable in this proceeding. But assume that in fact he had delivered the “personal property ” in specie or paid its value ás stated in the account to the legatees, was it done in the mode prescribed by law ? The 49th section of the act of February 24, 1834, P. L. 83, provided that “ whenever personal property is bequeathed to any person for life or for a term of years, or for any other limited period, or upon condition or contingency, the executor of such will shall not be compelled to pay or deliver the property so bequeathed to the person so entitled until security be given in the Orphans’ Court having jurisdiction of his accounts in such sum and form as in the judgment of said court shall sufficiently secure the interest of the person in remainder, whenever the same shall accrue and vest in possession; ” and the commissioners who reported it say that it was “ intended to provide for a case which sometimes ■ occurs of a bequest of a chattel or fund to a legatee for the term of his life with remainder to another person, where it is obviously proper that some'Security should be given by the first legatee for the benefit of those in remainder.” It will readily be seen that the language used here is broad enough to cover every case of limited interests in personal property short of absolute ownership, and every kind of personal property. The security required was intended as a substitute for the liability of the executor, and he could obviously relieve himself only in the mode here prescribed. If he delivered the property without exacting this security, his liability to the remainderman was necessarily continued. It having been admitted here that no security was taken, the liability to account for the personal property bequeathed for the life of Mrs. Drennan follows. There is no hardship in this result because in fact this property is in possession or control of accountant. In claiming compensation for twenty-five years as trustee, the accountant has in truth admitted his liability. For these reasons the exceptions must be sustained. In accordance with the foregoing opinion the court revised and re-stated the account, charging the amount of the personal estate, with interest from April 1, 1885, crediting counsel fees, costs and a commission of 5 per cent., finding a balance for distribution of 11,481.56, divisible into five shares. Exceptions to this decree were filed and overruled, whereupon the accountant took this appeal, assigning the said opinion and decree as error:
118 Pa. 189Oppenheimer v. Morrell (1888)
„ ERROR TO THE COURT OE COMMON PLEAS NO. 2 OE ALLE-1 GHENY COUNTY. No. 63 October Term 1887, Sup. Ct., court below, No 202 April Term 1887. In an amicable scire facias upon a mechanics’ lien filed to No. 27 January Term 1887, wherein G. R. Morrell was plaintiff and M. Oppenheimer, owner, and John Burkett, contractor, were defendants, the parties on February 11, 1887, filed an agreement in the form of a case stated, showing the facts following : John Burkett, a bricklayer, contracted with M. Oppenheimer, one of the defendants above named, to furnish the bricks and brick work in and about the erection of a certain building owned by the said defendant. G. R. Morrell, the plaintiff above named, with knowledge of the contract between the said Burkett and Oppenheimer, furnished, during the progress of the work, to the said Burkett, and upon the credit of said building, certain lumber of the value of $81.78, for the purpose (for which purpose it was so used)- of erecting scaffolding, to be used in laying the bricks in the erection and construction of the building aforesaid. If the court be of the opinion that the said G. R. Morrell is entitled to a lien against the said building for the material so as aforesaid furnished and used, then judgment to be entered in favor of plaintiff and against defendants, in the sum of $81.78, with interest thereon from June 13, 1886; but if not, then judgment to be entered for the defendants; the costs to follow the judgment, and each party reserving the right to sue out a writ of error thereon. On hearing, the court, Ewing, P. J., filed the following opinion and decree: And now, February 16th, after argument and upon consideration, the court being of the opinion that the law is with the plaintiff, judgment is entered on the case stated in favor of the plaintiff for the sum of $81.78 with costs of suit. An exception having been taken to said judgment, the defendants took this writ, assigning the said order entering judgment as error.
118 Pa. 192Weinman v. Wilkinsburg & E. L. P. Ry. Co. (1888)Objection overruled
ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 73 October Term 1887, Sup. Ct.; court below, No. 469 July Term 1886, C. P. On June 21,1886, the Wilkinsburg and East Liberty Passenger Railway Company brought suit in case against J. Weinman and A. N. Sutton, partners as Weinman & Co., to recover unpaid instalments on subscriptions to capital stock. The •narr. contained the following counts : For that whereas A. N. Sutton, one of the said defendants, heretofore to wit, on..... 1885, to wit, in the county of Allegheny aforesaid, became a subscriber to the articles of association of the plaintiff company, a corporation organized under the act of assembly approved March 19,1879, and agreed to take twenty shares of the capital stock of said corporation, of the par value of 150.00 each, and to pay for the samé when calls were duly made therefor. And the said A. N. Sutton, heretofore, to wit, on ... . 1885, sold and assigned said shares of the capital stock of said plaintiff company to the firm of Weinman & Company, said firm being composed of said A. N. Sutton and Jacob Weinman, the defendants in this case, and said firm accepted said assignment, and thereupon became liable to pay to the said plaintiff said amount of money so subscribed, and being so liable, they, the said defendants, heretofore to wit, on..... 1885, undertook and then and there faithfully promised the said plaintiff to pay it, the said money, when they should be hereafter requested. And, whereas, A. N. Sutton, one of the said defendants* heretofore to wit, on..... 1885, to wit, in the county of Allegheny aforesaid, became a subscriber to the articles of association of the plaintiff company, a corporation organized under the act of assembly, approved March 19? 1879, and agreed to take twenty shares of the capital stock of said corporation of •the par value of $50.00 each, and to pay for the same when calls were duly made therefor. And the said A. N. Sutton heretofore, to wit, on..... 1885, sold and assigned said shares of the capital stock of said plaintiff company to the firm of Weinman & Company, said firm being composed of said A. N. Sutton and Jacob Weinman, the defendants in this case* and said firm accepted said assignments and agreed with the said assignor that they would pay to the said plaintiff said amount of money so subscribed, and being so liable, they, the said defendants, heretofore, to wit, on..... 1885, undertook and then and there faithfully promised the said plaintiff to pay it, the said money, when they should be thereafter requested. The defendant Sutton was not served. Weinman pleaded non-assumpsit and specially: (a) That there is no such corporation as the alleged plaintiff, and said plaintiff has no capacity to maintain this action. (5) That any alleged subscription made by the said A. N. Sutton for any stock of the said plaintiff is and was void in law. (c) That the said alleged assignment of stock by the said A. N. Sutton to these defendants was and is void in law. (d) That said defendants are under no liability by virtue of said alleged assignment to pay for any calls or any subscription to stock, as averred in the declaration, (e) That no legal call or calls has or have ever been made by plaintiff for the said subscription or any part thereof. At the trial on February 24, 1887, it appeared in evidence: The plaintiff company was incorporated under letters patent dated April 3, 1883, under the act of March 19, 1879, P. L. 9. A. N. Sutton was a subscriber for twenty shares of the stock, and on the organization of the company became one of its directors. At a meeting of the directors on April 8, 1884, at which both Mr. Sutton and Mr. Weinman were present, Mr. Sutton requested that the stock in his name should be transferred to the firm, and that Mr. Weinman should be chosen as a director in his stead, as he was about to leave the city. Mr. Weinman paid the first instalment, 10 per cent., on the stock, was elected a director, and attended at three meetings of the board, one of which was on July 16,1884, at which meeting there was a call made for 15 per cent, on the stock subscribed. Mr. Weinman seconded the resolution for this call. After that date the board passed a resolution authorizing the president to make calls for payments. The calls were afterward made out by the secretary under the direction of the president, in pursuance of this resolution. On October 5, 1884, a call of 25 per cent, was made, and on November 15th a call for 50 per cent., the remaining part of the stock unpaid. Notices of the calls were sent by mail to the subscribers, and, finally, a notice was published in the newspapers in April, 1886, marked, Exhibit 2, of which the following is a copy: By resolution of the board of directors of the Wilkinsburg and East Liberty Passenger Kailway Company, all amounts unpaid on subscriptions to stock of said company must be paid to the secretary at his office, 518 Wood street, on or before April 30, 1886. Wm. H. Allen, Secretary. The plaintiff’s counsel offer in evidence Exhibit 2. Defendant’s counsel: I agree that this notice of publication may be received as of the same effect as if the files of the papers were shown and duly proven, but object to the admission of the notice itself, because it is not and does not purport to be a notice of any call or calls. Objection overruled.1 E. J. Allen, on the stand: Plaintiff’s counsel offer in evidence the minute book of the plaintiff company, in connection with the testimony of the witness, particularly the minutes of those meetings which have been referred to, and offer in evidence the minute of April 8, 1884, for the purpose of showing the call for stock, and the minute of October 13, 1884, especially the resolution therein that “ the president be authorized to call in such assessments as he may deem necessary, without bringing it before the board.” Q. Did you from time to time, in pursuance of that resolution, issue calls for the payment of subscriptions ? Objected to on the ground that the president had no power even under the resolution. A. Yes, sir; the calls were issued by the secretary under my direction. The court, White, J., charged the jury orally as follows : It is earnestly contended by defendant’s counsel that he is not liable at all and for various reasons, the first being that the act of assembly of 1879, under which this company was incorporated, is unconstitutional, because it is an act applicable only to cities of the first and second class, Philadelphia and Pittsburgh. I have declined to so decide. It ought to be a very plain case that would justify a lower court in such a decision as that. In any case of doubt it is our duty rather to sustain the acts of the legislature and allow the Supreme Court to pass upon them. Another position taken by the defendant is that there never was any subscription made; that there is not sufficient evidence to show that Mr. Sutton ever made any subscription at all. I think if the jury believe the evidence in the case, it is sufficient to justify them in finding that Mr. Sutton did agree to take twenty shares of the stock. Then it is urged that there is no evidence that the stock was ever transferred to the firm, no transfer on the books of the company, and counsel contends that there could be no transfer whatever of the stock until it was fully paid up, and that even then it could only be transferred on the books of the company. I decline to sustain those positions. [If the defendant, Jacob Weinman, knew that there was a subscription of twenty shares of stock made by his partner, and if the partner requested it to be placed in the name of the firm, and Jacob Weinman was present when that request was made in the meeting of the board of directors, and assented to it and agreed to act as a director in place of his partner, and did so act, and afterwards paid the first call; participated as a director for some time; recognized his liability for these calls as they were made, it is sufficient to show that there was an equitable transfer of the stock to the firm and the firm became liable to pay the calls when made properly.]5 Another position taken is that the transferee of the stock is not liable for the payment of future calls upon the stock. Counsel has read some decisions of the Supreme Court to the effect that a stockholder in an incorporated company who transfers his stock is still liable himself for the unpaid subscriptions; that the transferee is not liable unless there is some statute making him so, or unless he promises to pay. Perhaps that may be true when there is the naked transfer of the stock and nothing done by the transferee in the way of making himself liable or accepting the' position of taking the stock subject to future calls. Where, however, he takes the transfer with that understanding and agreement, that he is to pay the future calls, and acts upon that and so holds himself out to the company, unquestionably he would be liable, even without an express promise to pay. If in pursuance of that transfer the company accept him as the owner of the stock and he participates in the management of the company, especially if he act as a director and assists in making calls he would become liable to future assessments and especially if he promise to pay the calls. [Defendant’s counsel also claims that these calls were never legally made according to the act of the assembly under which the company was incorporated. It is evident that they were not made in strict compliance with the law. The law says that assessments shall be made not exceeding five dollars per share in any period of thirty days. It is not clear whether that means that no assessment at any time should be made exceeding five dollars a share, or whether it simply means that taking the average the assessments shall not exceed five dollars in thirty days ; but in either view of the case some of these assessments were not in strict conformity to the law. The assessment for 15 per cent, was made on July 16th, when Mr. Weinman was present; that would be $7.50 per share, which would exceed that limit, and the previous assessment of 10 per cent, had been made thirty days before that; but at all events he would be estopped from denying the validity of that act, for he was present at that time. The next assessment, on October 15th, was for 25 per cent., which was $12.50 per share, which, I think, would come within the construction of the act. The next assessment, however, was made a month after that, and that was for 50 per cent. That, I think, could not be construed as a proper assessment, or one strictly in accordance with the act. But the point is whether the defendant can raise that question, if he was a director of the company from April, 1884, until April, 1886, and knew of the action of the board authorizing the president to make these calls; if he received notice of them and never objected to it, never resigned his position as a director, but retained it until the new election in April, 1886, and when called upon to pay, not only did not deny his liability for these calls, but expressly promised to pay — I say if these are the facts, he is now es-topped from raising a question as to the validity of these calls.] 6 These remarks, cover, I think, all the questions of law raised by defendant. [The questions of fact then for you to pass upon are these: did Mr. Sutton, in presence of Mr. Weinman, at the meeting in April, 1884, request that the stock, which appeared to be in his name, should be transferred to the firm name of Weinman & Co.; was he, Weinman, present at the time and-agreeing to it and to his election as a director in place of Mr. Sutton, and did he act as such, attending meetings of the board after-wards, in July, and assisting in an assessment of the 15 per cent, call, and continuing as a director until April, 1886, knowing of that action of the board in October, authorizing the president to call in the unpaid subscriptions; knowing that the calls were made by the secretary under the direction of the president, and during all that time interposing no objection, but promising to pay the calls when he was able, and never raising any question as to his liability until after this suit was brought — if you find those to be the facts, he is estopped from denying his liability to pay the whole amount.] 7..... [Counsel for defendant has suggested to the court that there was no evidence that Mr. Weinman knew that the president had authority to call in subscriptions; but I say to you, that as a director it would be his duty to attend all meetings of the board, and the presumption would be, that as a director he would know all that the board did. The attention of the court has been called to the fact that at the October meeting, when this authority was given to the president, there was no quorum present. It was the duty of all the directors to attend, and, strictly speaking, they would not have authority to pass any such resolution as that; yet the directors of the company ought to attend the meetings and are presumed to know what the board does, and if not satisfied with what is done they should attend and have it corrected. I think it is a fair inference that the directors of the company who did not attend the meetings and made no objections to the action of the meeting, virtually sanctioned it.] 8 The defendant’s points are answered as follows: 1. That, under all the evidence in the cause, the verdict should be for the defendant. Answer: Refused.3 2. If the court refuse to charge as above requested, then the court is respectfully requested to charge the jury that in no event can the plaintiff recover more than the assessment of 1.5 per cent, made on July 16,1884, with legal interest thereon from the date of publication of notice to pay. Answer: Refused.4 The jury found for the plaintiff $986, and judgment being entered, the defendant thereupon took this writ, assigning for error: 1, 2. The admission of plaintiff’s offers.1 2 3. 4. The answers to the defendant’s points.3 4 5-8. The parts of the charge embraced in [ ] 5 t0 8
118 Pa. 204Bunting v. Penn. R. (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 84 October Term 1887, Sup. Ct.; court below, No. 760 December Term 1885, C. P. No. 1. This was an action in case instituted June 8, 1886, by Henry C. Bunting against the Pennsylvania Railroad Company, the lessee of and operating the South West Pennsylvania Railroad, to recover damages for personal injuries caused by negligence. Another like action by H. C. Bunting and Phoebe J. Bunting, his wife, for injuries to the wife, was instituted and tried at the same time. At the trial on December 23, 1886, it was made to appear that near Lemont Furnace, in Fayette county, the track of the South West Penn. Railroad is crossed by a private coke railroad owned and operated by Robert Hogsett, at two points about 600 feet distant from each other, the latter road running upon a semicircular line. On October 13, 1883, Mr. and Mrs. Bunting were passengers on a train of defendant company proceeding upon the South West Penn. Railroad towards Uniontown, when the passenger train was struck by the engine of a train upon the coke railroad and the plaintiffs received severe injuries. Evidence was introduced from which it was claimed by the plaintiffs that when the passenger train approached the first crossing of the coke railroad it was doubtful whether the passenger train whistled the signal for its approach, or whether the coke train whistled its own approach; that the engineer of the passenger train did not see the coke train until his train was upon the first crossing; that though he then pulled out rapidly, a coke car of the other train, pushed by the engine of the coke road, struck the platform of the rear coach of the passenger train so that the rear truck of that coach was derailed; that immediately the brakeman of the passenger train pulled the cord of the airbrakes letting on the air, and the engineer did the same from the cab, the result of which was to bring the passenger train to a stop when on the second crossing; that the effect of letting on the air from one of the cars was to render the release of the train from the brakes a matter of greater difficulty and more time than if the engineer had been left in full control; that when the collision at the first crossing occurred the engine of the coke train was reversed, and as it started back around the semicircle the engineer and fireman jumped from the cab, allowing* the coke train to run wild; that from the second crossing where the passenger train was stopped the engineer of that train had an unobstructed view of the coke train when approaching about half the length of the semicircle, but found it impossible to release the air and move his train from the crossing, until it was struck by the engine of the coke train, in which collision the plaintiffs were injured; and that there was no evidence that a watchman Avas stationed at either of the crossings or of any precautions taken to avoid a collision, except that defendant’s engineers had been instructed to approach Lemont Furnace crossing Avith their trains well in hand. Timothy Leehan, the engineer on the coal train, called by the plaintiffs: Q. If you had heard the South West Penn, engine whistle at the whistling post, would you have started from where you Avere with the engine on the furnace track ? Objected to, as incompetent and irrelevant. Objection sustained.7 The court, Collier, J., charged the jury as folloAvs: The questions in the case are all questions of negligence, and the plaintiffs in the first instance must satisfy you that the defendant company, or its agents, Avere guilty of the negligence which caused the accident. Jíoav have they done that? The allegations on the part of the plaintiffs, through their counsel, are, that they were passengers on this railway train; that they had paid fare, and while in the course of transportation Avere injured. The manner in which they were injured, as they allege by negligence of the servants of the defendant company, was, that at tins first crossing the engineer did not blow the whistle, took no precautions, but rushed along, as alleged by them, recklessly, and that this dinkey engine ran into the train, and after it ran into it they put down brakes and then started with the brakes down, got as far as the second crossing, where the dinkey engine ran into the train again and caused the particular injuries complained of to the plaintiffs. They allege that that was such negligence of itself on the part of the servants of the defendant company as Avould make it liable. [They allege further that the Penn. R. Co., or the S. VV. P. R. Co., because this was a private track belonging to Mr. Hog-sett, the owner of the furnace, that ran across their track and was there before theirs, had the right to proceed under the law to make regulations as they saw proper as to that private track, or, as they allege, remove it altogether, and that the company was liable for what everybody did on that road, ím matter how recklessly it was done. That part of the plaintiff’s claim, we are compelled to say, under the view we take of the law, is not sustained, and we charge you as matter of law, that the defendant company was not liable for the proper and correct running and management of that furnace road, except so far as it affects their own acts.]8 Now gentlemen, what was the duty of the company as to this crossing? And I will say to you the law is very strict as to the duties of railroad companies at crossings. It is the duty of a railroad company, or its servants, where there is a cross track upon their road, upon which there are steam cars, to observe great care, not the highest degree of care, not an impossibility, but they must use all proper precautions; they must have their train well in hand, and must be on the lookout, and if whistling and ringing the bell would be effective in preventing accidents they ought to do that. It is alleged here that they did not blow the whistle at the first' crossing. The evidence upon that you have heard. The evidence on the part of the defendant is that they did blow the whistle, not only the long whistle, but in addition to that it is alleged they blew four blasts. I will say that at that point a whistle ought to have been blown, and if it were one of the company’s rules to blow it there, it would be evidence of negligence not to blow it. It is alleged they rang the bell; and one of the witnesses says he kept the bell ringing, and that they went slowly and reasonably carefully. Ou the other hand, the plaintiffs say they did not do that; and it is alleged that after the car was struck they stopped the train by the automatic brake, which was perfectly proper of course; that was their duty. When the car was derailed it was their duty to stop the train at once, otherwise the people in the car might have been killed. It was their duty to stop, but it is alleged that the engineer, knowing the train had been stopped by the conductor, by means of the brake, and that it would take some little time to start, uselessly started and pulled up and could not get any further, and that that, with the other alleged negligence, caused this accident. The plaintiffs also alleged that there was not the proper precaution used; that that is all they did, and that was not enough. I believe that is the plaintiffs’ claim. The law is as I have stated it to you. You are the judges of the facts. The plaintiffs must satisfy you of the negligence of the defendant company, or its servants. They show you that they were passengers for hire, and while the burden is upon them to make out negligence, yet when they show that they were passengers for hire and a collision'occurred, and they were hurt, that is evidence of negligence to go to the jury, and is for the defendant to explain. Now, gentlemen, the defendant company undertakes to explain this accident, and I will give you their theory and you will judge between them. The theory of the defendant is that they did take all the precautions they could, that they had the train under control; that they whistled the proper signal for crossing; that they were watching this verjr crossing; that they rung the bell, and were looking out and that all at once (you can hardly call him anything but a crazy man) the engineer of the dinkey engine ran his engine into the rear coach of the train and knocked it off the rails; that as soon as that happened, finding the rear coach was off the tracks, and that the passengers might be killed, they tried to stop the train. The duty of the agents of the defendant company was to stop the train instantly, if possible. They allege they did that; but that this engineer of the din-key engine, contrary to any human expectations, reversed his engine and, without any necessity, left it. There is nothing to show it might have fallen over on him. He alleges he was afraid it would fall on him. There is nothing to show that there was the least danger of it being upset because it struck the rear end of the coach. He left his engine, and the grade being downward toward the place where the passenger tram had stopped, the dinkey engine with nobody on it, ran around the circular track, and while the servants of the defendant company were struggling to get out of its way, but not having time to take off the air, but doing all they could, the din-key engine struck the coach in which were the plaintiffs and injured them. Now that is the explanation of the accident on the part of the company, and I say to you, if you believe that theory, it would be a great outrage on justice to hold the company liable..... If you find the agents of the company were not negligent, that the accident was not their fault, that all was done by them that could have been done, then the presumption of negligence which arises when an- accident occurs and a passenger for hire is injured, would be explained; the plaintiff’s .remedy would be against the persons who caused the injury, ■and your verdict should be for the defendant. But if on the •other hand you should think the company negligent, that the accident was caused by their not giving the proper whistle, not taking the proper care, and after the train was struck, although the engineer jumped off the “ dinkey ” engine, and although they could not have expected him to do that; yet, if that was a natural consequence of the original act, and you think there was negligence afterwards upon the track, in the manner in which they took off the air and put on steam, and there was negligence in that, and that was the cause of the accident, then you should find for both plaintiffs, and the next question would be as to the measure of damages. The measure of damages is correctly stated by the learned •counsel for the plaintiffs in their points...... The defendant’s counsel ask the court to charge: 1. The evidence fails to disclose any act of negligence upon the part of the defendant company, which caused the injuries to the plaintiff, and for that reason the verdict of the jury must be for the defendant. Answer: Refused. 5. It being the uncontradicted evidence in the case that the rear coach of defendant’s train was derailed at the first crossing, it became the duty of defendant’s employees to stop the train as promptly as possible, and the stopping of the train in the manner as shown by the testimony was not negligence. Answer: Affirmed.6 6. That the duty of the defendant company’s employees is to be measured by a due consideration of all the surrounding circumstances, and if they acted honestly, according to their best judgment under the circumstances, they were not guilty of any negligence, even if they were guilty of an error of judgment. ■ Answer: Affirmed. The plaintiffs ask the court to charge: 1. If the defendant, being a corporation operating a line of railroad carrying passengers, permitted a railroad track owned by individuals to cross the defendant’s track at grade and to be operated by individuals as a railroad, the defendant is responsible to the plaintiffs, being passengers on defendant’s train-,, for all such negligence occurring on said private railroad track as would render defendant responsible to plaintiffs if the-said negligence had occurred on the defendant’s main track. Answer: Refused.1 2. Under the admitted facts of the construction and location of defendant’s road and the furnace track, the defendant is responsible for the careful and safe management and running of the furnace road. Answer: Refused.* 3. The policy of the law is to discourage railroad crossings at grade, and the burden of proof is upon a railroad company maintaining a grade crossing, if injuries to passengers, which would not have occurred if said crossing had been overhead,, occur at such crossing, to prove that the said crossing at grade could not reasonably have been avoided, and if such proof is not produced the presumption of negligence is against the defendant. Answer: Refused.3 4. If the furnace track was a private railroad track operated by individuals, crossing the defendant’s track at grade and operated by defendant’s permission, the defendant is responsible to passengers on their main line of road, for the careful and skillful operation and management of the furnace road just as defendant is responsible for the main line of road. Answer: Refused.4 5. That if the jury find from the evidence that the plaintiffs were passengers in the trains of defendant company, having paid fare, and were injured in a collision without fault on their part, then the burden is upon the defendants to repel the presumption of negligence thus arising. Answer: Affirmed. 6. If the jury find from the evidence that the engineer of defendant’s train, wherein plaintiffs were passengers, failed to properly signal its approach to the furnace crossing, or to approach same at a proper rate of speed under all the circumstancse, this is such negligence as will sustain a recovery by the plaintiffs in this case. • Answer: The facts stated in this point are evidence of negligence to be considered by the jury. 7. The defendant company is bound to furnish and maintain a safe and sufficient track in all respects and to guard its trains and passengers from every injury that human prudence could foresee and guard against, and if the jury believe from the evidence that the collision was rendered possible by reason of the structure and location of its tracks with reference to the track or switch of the furnace company, and that in the construction and use of said defendant’s track the happening of an accident, such as this, might, by reasonable care and prudence, have been foreseen and guarded against, then the defendants are liable in damages to plaintiffs. Answer: Refused, as a whole, because there is no evidence to sustain it.5 8. If under all the evidence the jury believe that the defendant company failed to use due and reasonable care, and in the construction and management of their road, guard, as far as human foresight could, against the occurrence of such collisions as this, the plaintiffs are entitled to recover, irrespective of the fact that the collision may have been due in part to negligence or lack of skill or care in the control or management of the furnace engine. Answer: Affirmed. So, gentlemen, you take the case. Remember, first, that the; negligence to be made out is the negligence of the agents and and servants of the defendant company, and if the evidence does not satisfy you of that, the plaintiffs have failed to make out their case, and your verdict must be for the defendant. If you are satisfied that they were negligent, your verdict should be for the plaintiffs, in such sums as you find under the rule I have given you as to the measure of damages. The verdict of the jury was in favor of the defendant, and, judgment being entered, the plaintiff, H. C. Bunting, took this writ, assigning as error : 1-4. The answers to the plaintiff’s points.1 t0 4 5. - The answer to the plaintiff’s seventh point.3 6. The answer to the defendant’s fifth point.6 7. The exclusion of the plaintiff’s offer.7 8. The part of the charge embraced in [ ]8
118 Pa. 215Appeal of Reed (1888)
FROM THE DECREE OP THE ORPHANS’ COURT OP ALLEGHENY COUNTY. No. 89 October Term 1887, Sup. Ct.; court below, No. 184 September Term 1886, O. C. The contention in tbe court below arose in the distribution of the proceeds of' real estate in the hands of Thomas Morrow, trustee under the will of Thomas Morrow, deceased. At the audit on December 7,1886, before Hawkins, P. J., the facts appeared: Thomas Morrow, the testator, died September 11, 1874, leaving one daughter and nine grandchildren, children of a deceased daughter. By his will he gave Ms executors charge of his real estate, directing that after they should realize from the rents, etc., sufficient to pay his debts, funeral expenses and $1,000 to a grandchild and $500 to a great-grandchild, then they should divide his farm and sell a ■described portion thereof in lots, at times and upon terms of which the executors were to be the sole judges. The fund for distribution, arose from the sale of the land, thus directed to-be sold, and was to be distributed as required by the part of' the will which was as follows: When all that part of my farm east of the Plank Road has-been disposed of, having nine (9) grandchildren, viz.: Thomas-M., John K., Harry and Charles Blair, Fanny Eichbaum, Mary Reed, Jane Meanal, Eliza Rind and Eleanor Blair, all children of my dead daughter Nancy, who was intermarried with John Blair, deceased, I will and direct that the net proceeds arising-from the sale of this part of my farm, together with the one fourth of an acre on western side of Plank Road including- and surrounding my spring and spring house, which is to go-with'said part east of said Plank Road, shall be divided into nine (9) equal parts, and that my said executors or the survivor of them, shall for the period of twelve years from the time of my decease, keep said net proceeds invested at interest and pay over annually to each of my above-named grandchildren one ninth of the interest thereof annually, or if any of them ■have died leaving heirs, then pay same to said heirs, and at the full expiration of twelve years from the time of my decease, shall in like manner pay over the principal. But neither interest or principal shall be liable to attachment. Mrs. Mary Reed, the wife of C. E. Reed, received several of the annual instalments of interest payable under the testamentary provisions quoted. In 1882, she assigned her share in the estate to A. Sitler, her husband joining, as collateral, security for a balance of the purchase money of a drug store-bought and afterwards conducted in her name. She died in 1885, leaving a will in which she appointed her husband her executor and gave to him a life estate in all her property, the remainder to her children. The court decreed one ninth of the fund to be distributed to the husband and children of Mary Reed, deceased, adopting-the construction of said provisions of the will according with an opinion of the court, Over, J., filed February 24, 1883, on a former distribution in the same estate, and which was as-follows: The first question to be determined is whether distribution of two ninths of the fund is to be made to the administrators. of the estates of Thomas M. and John K. Blair, or to their heirs. And this depends upon whether the legacies are to be considered as vested or contingent. It seems clear that the words “ have died,” as used by the testator, have reference to the period of time indicated immediately preceding their use. If ■ this be the case, this sentence of the will could be read as follows : “ Or if any of them have died at the time the annual payment of interest is to be made, leaving heirs, then the payment shall be made to said heirs.” The testator then directed that.at the expiration of twelve years the executors “ shall, in like manner, pay over the principal ” : that is, that they shall pay one ninth of it to each of the grandchildren who are then living, and to the heirs of such as are dead the one ninth that such deceased legatee would have received if living. If this be the proper construction of this clause of the will, it would seem that it was the intention of the testator that the legacies should not vest until the expiration of the twelve years. This construction is strengthened by the fact that his purpose evidently was to create a trust for the period of twelve years to protect the legacies from liability for the debts of the legatees, as it thus appears that the postponement of the enjoyment of the gift was on account of the character of the donees, which indicates his intention that the legacies should not vest until the expiration of the twelve years: McClure’s App., 72 Pa. 418 ; and also by the further fact that there is no gift except as it is implied from the direction to pay over, which of itself, unless a contrary intention appears, makes the legacies contingent: McClure’s App., supra; Chess’s App., 87 Pa. 362. This case is to be distinguished from Provenchere’s App., 67 Pa. 464, as there the postponement of ^ the gift was made to let in another interest, and, as stated in the opinion of the court, there was no contingency of survivorship expressed, nor was there any reason to imply it; whilst here, the postponement was not made to let in another interest, and the contingency of survivorship is expressed in the will. The legacies being contingent, it follows that distribution is to be made to the “heirs” of John K. and Thomas M. Blair, deceased, and not to their administrators. As they left widows to survive them, the question arises as to whether they can participate in the distribution as “heirs” of their deceased husbands. By the terms of the will the testator’s real estate was converted into personalty, and therefore the fund for distribution is personal. The word “ heirs,” when used in disposing of personalty, unless a contrary intent is indicated by the will, is construed to mean the persons entitled to distribution under the intestate act: Eby’s App., 84 Pa. 241. There does not appear to be anything in this will indicating a contrary intention, and therefore distribution of one third of the legacies bequeathed to John K. and Thomas M. Blair is to be made to their surviving widows. Thereupon Charles E. Reed, as executor of Mary Reed, deceased, took this appeal, assigning that the court erred in finding that the legacies to the grandchildren were contingent, and awarding the one-ninth of the fund, or $1,540.65, to the heirs of Mary Reed, deceased, or $256.77-£ to Charles E. Reed, husband, and a like sum to each of the children of Mary Reed, instead of $586 thereof to A. Sitle'r, assignee, and $954.65 to Charles E. Reed, executor.
118 Pa. 223Allegheny Heating Co. v. Rohan (1888)
ERROR. TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 103 October Term 1887, Sup. Ct.; court below, No. 174 June Term 1886, C. P. No. 1. On April 2, 1886, an action in case was brought by John Rohan against the Allegheny Heating Company, a corporation organized under the act of May 29, 1885, P. L. 29, and engaged in the supply of natural gas to the citizens of Allegheny City. At the trial on November 17, 1886, it appeared that on April 23, 1885, the defendant company was laying a main line of eight inch pipe, with screw joints, along Rebecca street, with a branch therefrom on Ridge avenue. Three gangs of men were engaged. One, in which the plaintiff was employed, was digging the trench; a second, placed, tightened and tested the pipe, while a third gang filled in the earth and repaired the street. On the day mentioned, the defendant company tested about three hundred feet of the main which had been laid the day before. The testing was done by screwing an iron plug into the end of the pipe and then turning in the full pressure of the gas as it came from the well. The plug had been screwed into the pipe, but a small leak was left. There was testimony that this leak was known to the plaintiff and the other men of the ditching gang, and that they had been warned by two of the foremen with a direction not to strike or use lights. While the plaintiff was at work .about twenty feet from the plugged end of the main, Patrick McGinty, another trench man, working with the plaintiff, struck a match to light his pipe, when an explosion followed from which the plaintiff and two other laborers received superficial and painful burns. At the close of the plaintiff’s case, a motion for a compulsory nonsuit having been refused, the defendant introduced testimony as to the absence of any negligence on the part of the company in the laying of the pipe or in the method of testing it, and as to the fact of plaintiff’s knowledge of the leak, the warning, etc. The other facts material sufficiently appear in the opinion. The court, Bailey, J., charged the jury as follows: It is necessary for the plaintiff to satisfy you that he has a meritorious case, that he did. sustain the injuries complained of, and that he received them by reason of the negligence of the defendant company or its servants. It is possible that you may determine without much difficulty from the testimony in the case, that this accident resulted from an explosion of natural gas which escaped from the pipe of the defendant company. Of course there is no direct evidence that the gas, whether great or small in quantity, which escaped from the end of this pipe, passed so far as this man McGinty was standing, and that the explosion resulted, necessarily, from the presence of that gas in that trench, but that is a question of fact which you must determine under the evidence. But though you be satisfied that that presence of gas, leaking from this pipe, was one of the causes of the accident by which the plaintiff was burned, that would not be enough, in itself, to warrant you in finding a verdict in favor of the plaintiff. You must be satisfied that the escape of that gas was the result of the negligence of this defendant company through its servants. There seems to be no evidence to the contrary, that this business was conducted in the ordinary, prudent, careful way that such work is done, according to the best lights which persons engaged in that business possessed, and that there was no escape of gas beyond what necessarily or ordinarily resulted from the transaction of the business in the mode in which it was done here, which seemingly was done, as I have said, according to the best lights these parties possessed. But it is for you to say whether that was a negligent act upon the part of the defendant company or its servants. Was there any negligence involved in the escape of a greater or less quantity of gas from the cap or plug which covered the end of the pipe when they were making tests of the sufficiency of the joints in the line ? It is necessary that you be so satisfied. If it were an ordinary natural reasonable result from the conduct of the business of this company, it would not be proper for you to say it was negligence. The accident must be shown to have resulted from a want of care on the part of the company, or its servants, and on that subject I have a point presented by the defendant’s counsel. The first point presented by the defendant, “ that under all the evidence the verdict must be for the defendant,” I refuse, in order that the facts may be passed upon by you.1..... You must be satisfied, not merely that this gas escaped but that it was a negligent escape, and that it was the result of a want of exercise of the prudence and care which a prudent and cautious man would have exercised about the transaction of his business under the circumstances surrounding this case. If this work was prudently and carefully done, it was not negligently done, and if not negligently done, the plaintiff cannot recover; because the defendant company can only be held answerable for its negligence or that of its employees, or, as is said in a point, “ by an act of omission or commission on the part of the company or its servants.” But if you should find the two facts, that the explosion resulted from a leakage from this pipe, and that that was a negligent leakage, there is yet another question involved in the case, and that is, whether it was the result of negligence of a fellow workman of this plaintiff, the-man McGinty, who it would seem, but that is a fact for you to pass upon and determine, struck a match and that match ignited the gas in the ditch. If the accident resulted from the negligence of McGinty he was such a co-employee or co-servant with the plaintiff that the plaintiff could not recover. If you find from the evidence that the negligence of Patrick McGinty, who was unquestionably a co-workman with the plaintiff, gave rise to the explosion, and was the occasion of this accident, then the plaintiff cannot recover; because that is one of the risks, that, under the law, a man takes when he enters into an employment. When a master or employee has furnished proper servants to assist a workman who is injured in the performance of his labor, and any such fellow workman by his negligence and want of prudence and caution does a wrong to his fellow by such negligence and want of caution, it is, of course, a matter which the employer cannot provide against. It is a matter which cannot be controlled, and is one of the incidents of the employment, the. risks of which a co-employee takes in entering upon the work..... The verdict of the jury was for the plaintiff for |180.34-|, and judgment being entered, the defendant took this writ, assigning for error: 1. The refusal of defendant’s point.1
118 Pa. 230Balt. & Ohio R. v. Colvin (1888)
ERROR TO THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY. No. 114 October Term 1887, Sup. Ct.; court below, No. 533 July Term 1886. The action below was in case for negligence by James Colvin against the Baltimore & Ohio Railroad Company to recover damages for personal injuries. The declaration, which was in two counts substantially the same, after averring the duty of the defendant company in the management of its trains at a crossing on Ross street, in Pittsburgh, and the driving by the plaintiff along said highway, charged: Yet the defendant, not regarding its duty in the premises, by its servants and employees, induced the said plaintiff to believe that it was safe and prudent to pass over said crossing, and failed and neglected to give said plaintiff proper warning and notice of the approach of said locomotive and cars; and the said plaintiff lawfully advanced and with proper care, attempted to cross the said railroad of said defendant, when the said defendant, by its servants and employees, drove the said locomotive and train of cars so negligently, recklessly, carelessly and unskillfully, and with such excessive and improper speed, and without giving the customary and proper warning, that by reason thereof, the said locomotive engine and train of cars, then and there to wit, in the county aforesaid, were driven and impelled violently against the wagon aforesaid, whereby, etc. At the trial on March 3,1887, it appeared that on September 2,1885, the plaintiff, a teamster driving for John Colvin & Co., was sent to deliver a wagon load of iron to cars in the freight yard of the defendant for shipment. As he reached with his load the corner of Water and Ross streets, he stopped until the freight receiver located the car desired and told him to which car to drive. The plaintiff then looked down Ross street, but, owing to the warehouses on both sides down to the point where the main tracks and sidings of defendant’s railroad cross Ross street, he could see no part of the tracks except within the street lines. The flagman on the main track, as plaintiff testified, signaled him to drive on. He started down said street, which was of quite a steep grade, “ going pretty quick,” when, as he was crossing the third track, his wagon was struck by some moving passenger cars, was upset and thrown upon him causing the injuries for Avhich suit was brought. The plaintiff also testified that he received no warning of danger until his horses were upon the track on which the train was approaching. As to the signal from the flagman to drive on, the plaintiff was corroborated by other testimony. It was claimed by the defendant company, and evidence was introduced to show, that all that part of Ross, street between Water street and the Monongahela river was practically nothing more than a driveway to and from the freight sidings of the defendant company, though the street had been laid out as a public highway to the river; that the plaintiff had frequently delivered freight to cars upon the same siding to which he was going and was thoroughly familiar with the situation. A number of witnesses were called who testified that the flagman did all in his power by signaling and shouting to deter him from coming on. Richard Lucas, sworn for plaintiff, was a teamster, and was present when the collision occurred: Q. Do you know the general reputation of that flagman for care, at the time or before the time of this injury ? Objected to, as incompetent and irrelevant. Objection overruled.6 A. I heard a great many people say that he is not a capable man to be a flagman there; he neglects his business. I heard teamsters say so. The testimony of John Boyd, Edward McCullough and of a number of other witnesses, to the same effect, was admitted under exception by the defendant.6 The court, Magee, J., so far as material to the cause as decided, charged the jury and answered the points presented as follows: Two principles of law are applicable in this case, viz.: The injury must be the result of negligence on the part of the defendants and the plaintiff must not, by his negligence, have contributed to the injury sustained. The plaintiff, by his evidence, says that the accident happened on the middle of Ross street, a public highway in the city of Pittsburgh, while the horses of his team were on the third track and in the effort to cross the track, on his way to the defendant’s yard with, freight; that the tracks upon which he was caught are about seventy-five feet from Water street; that he stopped on the corner of Water street and Ross, or at the turn, and waited for the signals from the flagman at the crossing to come forward; that, upon receiving the signal to come forward he started his team with a load of sixty-five hundred pounds and reached the third track with his horses, when the wagon was struck by the train and he was injured. I take it that a teamster, moving forward at the signal of the flagman, unless it be shown or appears from the evidence that he saw the danger himself or it was such as he ought to have seen, by the exercise of proper self care, would not be chargeable with contributory negligence in his conduct. [Another principle, I think, applies to the case: When a man, without negligence on his part, becomes involved in immediate peril it is' not to be attributed to negligence that he did not take the best means of escape. His judgment in the peril maybe at fault, but it is regarded as a mistake and not as negligence on his part. If he is there, without negligence upon his part, the fact that he does not do the best thing that could be done is not evidence that he is negligent in what he does.] 9 The plaintiff and the defendant both have their respective rights to the lawful and proper use of the street crossing. The crossing is testified to as a dangerous one, and the railroad company have placed a flagman there to warn parties against danger. [It is the duty of one who proposes to cross a railroad to stop at a proper place, and you are the judges under all the evidence of what is a proper place, and look and listen; and that would be. the duty of the plaintiff here, unless relieved of that duty by a signal of safety from the defendants, and it Avould be the duty of the flagman of the company to be watchful and give warning of approaching trains, and of danger to those who propose^ to cross the tracks.]10 If the company have a flagman there you have a right to look to the man for some protection, but you must not give up all duty and care for yourself. If the plaintiff failed to exercise the proper care required under the circumstances, he is a contributor to his oavu injury, and the law will not undertake to determine the proportions of negligence, but holds that in such case the plaintiff cannot recover at all. If the defendants alone have been negligent, then they become answerable for the injury in the absence of any other valid defence. The defendants on their side say, that under the provisions of the act of April 4, 1868, P. L. 58, the plaintiff is to be •regarded as an employee of the defendant company, and the rights and liabilities of the parties to this action are to be determined by the laAV applicable to persons in that' relationship to one another. The act provides as follows:..... This act, I hold not to be applicable to this case, unless you find as a fact that the plaintiff, at the time of the accident, was engaged or employed on or about the premises of defendant company or on or about any car thereon; and that if the accident happened on a public highway before he was engaged or employed on the premises and in work pertaining to the company operations, the act is not applicable to this casé. If he was not so engaged or employed you will not regard his case as that of an employee of the company defendant. If you find, as a fact, from the evidence that he was so engaged or employed, then he is to be regarded as an employee, and in such case it is the law that the defendant would not be liable for an injury resulting to an employee from the negligence of his co-employee, unless you find as a fact, from the evidence, that the defendant has not exercised reasonable care and made reasonable provision for the safety of its -employees..... The defendant company, in addition, say that they were not negligent in their duty; that they had a flagman at the Ross -street crossing who was at his post at the time of the accident, and in proper time gave the plaintiff warning of the danger in crossing, and that in disregard of the warning given by the flagman, and of others who called out and waved to him to stop, at a place where it could be done, of course, the plaintiff •drove his team on the railroad tracks and thereby occasioned the injury which he sustained. If the plaintiff neglected to be on the lookout, and by reason of his own carelessness, failed to heed warnings of danger, or noticing them disregarded them, he would be in law a contributor to his own injury, and could not in such case recover for the injury sustained. The crossing seems to have been known by plaintiff and defendant as a dangerous one, and as such required in its use a corresponding watchfulness..... Plaintiff’s points: 1. When a railroad crossing is at the foot of a steep incliné and the company keeps a flagman at the crossing, the law lays down no fixed rule that a party crossing on a heavy load of iron with two horses, must stop and look and listen immediately before crossing; nor was plaintiff bound, as a matter of law, to leave his team at the head of the incline and to approach the track on foot. If plaintiff stopped and looked and listened at the head of the incline and saw the flagman there on duty, then the question of whether plaintiff exercised proper care is for the jury. Answer: Affirmed.4 2. The duty of the defendant is to have the signals by the flagman so plainly given that they can be readily understood. Answer: Affirmed. Defendant’s points: 1. That under the evidence the plaintiff suffered the personal injury, for which recovery is sought, while lawfully engaged or employed, on or about the roads, works, depots and premises of the defendant company in a business directly connected with defendant, and his case is therefore within the provisions of the act of April 4, 1868, P. L. 58, and his right of action only such as would exist if he were an employee of the defendant, and in such right, under all the evidence, he cannot recover. Answer: Refused, unless from the evidence you find as a matter of fact that the plaintiff was engaged or employed on or about the premises of defendants. If the accident happened when the plaintiff was on the public highway, and before he had entered or used the premises of the defendants for the shipment of his goods, he would not in such case be subject to the provisions of the act of April 4, 1868.1 2. If the jury believe from the evidence that the plaintiff, at any point between the corner of Water and Ross streets and the main tracks of the railroad across Ross street, was signaled or warned by the flagman, or by other parties, to stop his team, and that he did not stop, he was guilty of negligence contributing to the injury and cannot recover. Answer: Refused.8 8. That it is the duty of a party about to cross a railroad, to stop, look and listen immediately before crossing, at a point, and in a manner, where, and in which, he can assure himself, by the use of his senses of sight and hearing, that no train is approaching; and in this case, the plaintiff’s own testimony disclosing that he failed to perform this duty, the verdict must be for defendant. Answer: Refused.3 4. That the dangerous character of the crossing with which the plaintiff, under his testimony, was familiar, only made it necessary for him to exercise a greater degree of caution and prudence before crossing, than if it had been less dangerous. Answer: Affirmed. 5. That the inquiry in reference to the conduct of the flagman must be confined to what he did, or omitted to do, upon the day, and at the time of the accident; and his conduct at other times, or upon other occasions, is irrelevant and must be disregarded by the jury. Answer: Affirmed. The verdict of the jury was in favor of the plaintiff for $1,896, and, judgment having been entered, the defendant company took this writ assigning for error: 1-3. The answers to the defendant’s points.183 4. The answer to the plaintiff’s first point.4 6. The admission of plaintiff’s offers.6 9,10- The parts of the charge embraced in [ ] 9 10
118 Pa. 242Ahlborn v. Wolff (1888)Objection overruled
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 121 October Term 1887, Sup. Ct.; court below, No. 124 September Term 1886, C. P. No. 1. On June 26, 1886, an action of assumpsit was brought by August Ahlborn against William Wolff, to recover upon a promissory note which was as follows: $746.79 Pittsburgh, December 18,1886. Four months after date, I promise to pay to the order of William Wolff, seven hundred and forty-six dollars and seventy-nine cents, ($746.75.) At R. C. Wolff. Value received. [Endorsed] August Ahlborn. WILLIAM WOLFF. J. H. Ortman & Co. At the trial on May 2,1887, it appeared that the note had been discounted by the Duquesne National Bank for J. H. Ortman & Co., the last indorsers. On notice of protest for non-payment, it had been lifted from the bank by August Ahlborn, who then brought suit against William Wolff to recover the amount thereof. The note admitted in evidence, the plaintiff rested. William Wolff, defendant, called: Counsel for defendant proposes to prove by the witness on the stand that his indorsement of the note in dispute was made prior to that of August Ahlborn, the plaintiff in this case, and upon the distinct understanding and agreement with the said August Ahlborn and R. C. Wolff, the maker and first indorser of the note, that he was to be secondarily liable, and that the insertion of the name of William Wolff as payee of the note, was by mistake upon the part of J. H. Ortman & Co., the third indorser and parties who filled out the note. Objected to for the reason that it is contrary to the statute of frauds; that it is an agreement to pay the debt of a third party, and not being in writing it would be within the statute. Under this offer and exception taken, the defendant introduced evidence claimed to establish the following facts : That the note in suit was the last of a series of renewal notes, the original note having been given by R. C. Wolff, the maker, to J. H. Ortman & Co., for merchandise ; that the original note and all the subsequent renewals thereof, except the note in suit, were made by R. C. Wolff, payable to the order of August Ahlborn, and indorsed, first, by August Ahlborn, second, by William Wolff, and third, by J. H. Ortman & Co., for which firm the notes were from time to time discounted by the Duquesne National Bank of Pittsburgh; that the defendant indorsed the note at the request of R. C. Wolff, for the purpose of enabling him to renew the preceding note; that at the time the defendant put his name on the back of the note the body of the note was in blank, and there were no other indorsements on the back of it; that the defendant indorsed the note and handed it to R. C. Wolff, in the absence of August Ahlborn, and without any understanding or agreement, or even conversation, with Ahlborn or with any one else, as to the way in which the note should be filled up, or whose name should be inserted as payee, or as to the order in which they (the plaintiff and defendant) should be liable as indorsers thereon; that after the note in suit had been indorsed by the plaintiff and defendant, as aforesaid, it was delivered by R. C. Wolff, to J. H. Ortman & Co.', who filled up the blanks in the body of the note, and indorsed it and had it discounted. In rebuttal the plaintiff testified that when he indorsed his name upon the note, the face of it was filled up as when suit was brought, and testimony was adduced in corroboration of this statement. The court, Stowe, P. J., charged the jury: It seems there was a series of notes in which R. C. Wolff was maker, August Ahlborn, plaintiff in this case, payee, and William Wolff, the second indorser. They were given to parties who got them discounted in bank, and they were not paid, but renewed from time to time.....When the note, of which the one in suit was a renewal, matured, if Ahlborn had paid it he could not have made the money off William Wolff; but if William Wolff had paid it he could have made his money off Ahlborn or the maker. Ahlborn could also make it off the maker. This being the case, and they standing thus liable, the parties to whom the note was given didn’t see fit to exact the money, and there was a renewal. [In the absence of any arrangement, where a note has been made in a certain way, the presumption is that it was made that way with the understanding and agreement of the parties ; I do not say that it is a fact, but it would be a natural conclusion. When renewed, if nothing were said, the presumption is that the party who indorsed the note in blank, put and intended to put his name just exactly where, it was before, and therefore, in this case the notes should have been drawn as the other was, to Ahlborn as payee, and indorsed first by Ahlborn. That is the presumption apart from any fact which would change the natural inference.] 8 Whether it is sufficiently strong is for the consideration of the jury. It would be the natural conclusion that would arise from the facts, and that is all we can say to you about it, so far as presumptions are concerned. There is no direct proof on the subject so far as I caught it, but my attention was diverted part of the time. [The allegation of the defendant here is that he signed the note, expecting, as he would have a right to expect, that it would be as it was before, the relation of the names to each other would be as before, the note would be in the same form; and that he put his name, without any agreement to the contrary, upon a note that had not anything on it. If that is true, it would justify the jury in finding a verdict for the defendant;] 3 or, if there was a mistake, or a fraud perpetrated on him by the change of these names, he would not be bound to pay it. The man primarily liable, August Ahlborn, was the man up to that time who was bound to pay, if R. C. Wolff didn’t pay; and if Ahlborn did pay it, he could not have made the money off William Wolff, because he was a subsequent indorser. But if, as alleged by the plaintiff, William Wolff put his name on the back of this note, when his name as payee was in the note, then, without he was deceived or defrauded, and there is not a particle of testimony as to that, and I may say it was his business to look at it for himself, if he put his name on the note without any fraud or concealment on the part of Ahlborn or anybody else in reference to the matter, he has fixed his liability. If William Wolff put his name on the back of this note, knowing as he ought to have known — for it was his business to look that it was in the note — he would be responsible as the first indorser; and if Ahlborn put his name on afterwards that would amount to nothing; and having paid the note, he then became the holder of it and would have a right to recover off William Wolff. That is the first question, was William Wolff’s name as payee in this note at the time he signed it? If it was, it is very clear your verdict should be for the plaintiff. [If, however, as Wolff alleges, this was one of a series of notes renewed as I have indicated, was not filled up, as he says it was not, and the name of the payee was not written in it — it is not so material about the other matters — and he indorsed it expecting and understanding, without saying a word about it, that he was to indorse it just as before, be the second indorser; without there is something in the case that would justify the jury in coming to the conclusion, in view of the whole transaction, that the arrangement was different, your verdict should be for the defendant, otherwise it should not.] 4 In looking at that matter you must consider the whole transaction from the beginning. There may have been no distinct understanding, and it may have been a matter that was entirely indifferent between them as to who indorsed the note, for one was a cousin of the drawer and the other a friend. As far as the parties who held the note are concerned, it didn’t make a bit of difference whether Ahlborn was the first or second indorser. He and William Wolff were both equally liable to them, and they could recover from either. Ahlborn and William Wolff could change their liability just as they pleased. Ahlborn could say to Wolff, “I have been first indorser long enough, Í wont be so any more.” Wolff then could say, “Well, let the note go to protest, and I will renew and make myself the first indorser;” or they could make any other arrangement between themselves they pleased. In the absence of proof on that subject, it is for the jury to take all the facts together and draw their own inferences and conclusions as to what was probably the understanding between these parties, and base their verdict upon that conclusion. If the note in suit was filled out with the name of William Wolff as payee when he indorsed it, your verdict should be for the plaintiff, because, as I said before, he could change the position of his name on the back, and at any rate it was his business to look at it for himself. In that case he put it there knowing, or he ought to have known, that he was the payee, and he cannot repudiate the transaction. The verdict of the jury was for the defendant. Thereupon, judgment being entered, the plaintiff took this writ assigning for error: 1. The admission of defendant’s offer.1 2-4. The parts of the charge embraced in [ ] 0 3 4
118 Pa. 249Arrott v. Walker (1888)
ERROR TO THE COHRT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 125 October Term 1887, Snp. Ct.; court below, No. 455 December Term 1885, C. P. No. 1. The action below was in assumpsit by Nathan U. Walker, doing business as the N. U. Walker Clay Manufacturing Company, against James W. Arrott, instituted on November 8,’ 1884. The declaration averred that on September 1, 1884, the defendant was an insurance agent at Pittsburgh, and contracted with the plaintiff to place insurance upon his property at Walker station, Columbiana county, Ohio, to the sum of $45,000, at rates then and there agreed upon, the risk to commence at 12 o’clock on said day and to continue for one year; that the defendant was to receive a percentage on the premiums to be paid to the various insurance companies who should accept the risk; that on September 12, 1884, the terra cotta works of the plaintiff to the value of $21,000 were destroyed by fire, and the defendant when called upon for the policies covering the said risk, declined to furnish them, claiming that he had placed insurance upon the terra cotta works to the sum of $16,800, only; whereby the plaintiff lost the sum of $4,200 by reason of defendant’s failure to fulfil his contract. The facts appearing at the trial on April 27,1887, sufficient-]y appear in the charge of the court, Bailey, J., which was as follows: This action has been brought by the plaintiff, N. U. Walker, doing business as the N. U. Walker Clay Manufacturing Company, against the defendant, James W. Arrott, to recover damages for an alleged breach of contract upon the part of Mr. A rrott to place a certain sum of insurance, by which failure damage resulted to the plaintiff to the amount claimed in this action. It is alleged upon the part of the plaintiff, that Mr. Arrott was an insurance broker, transacting business in the city of Pittsburgh, and holding himself out as such. The business of an insurance broker is recognized by law and the broker requires, in order to transact that business, a license. It is to be assumed that was the state of facts under which Mr. Arrott was acting at this time, because there is no evidence to the contrary; it is to be assumed, of course, that he complied with the law. It is alleged that an application was made to him by the son, the agent of the plaintiff, to place a certain portion of $47,500 insurance, which plaintiff desired upon certain property of the plaintiff in Ohio; that in consequence of certain conversations that occurred at that time the whole matter was intrusted to the defendant, and the defendant then and there as such insurance broker, undertook to place the insurance upon the property of the plaintiff to the amount of $47,500; that the insurance was to take effect upon the first day of September, 1884, at noon; that the amounts of the premiums agreed upon between the parties were to be paid to Mr. Arrott sixty days thereafter; that a fire occurred; and it then appeared that Mr. Arrott had failed to place all the insurance that had been intrusted to him, and, in consequence, loss occurred to the plaintiff. That is substantially what the plaintiff claims as the facts upon which he relies to recover in this action. The burden, of course, is upon the plaintiff to make out such a state of facts as will satisfy you by the preponderance of testimony that the allegations upon his part have been sustained, and you will critically examine the testimony where there is conflict, and determine whether that preponderance of testimony does appear upon the part of the plaintiff. If the plaintiff has failed to satisfy you, by the fair weight of the evidence, that such a contract was entered into by Mr. Arrott, at the time and under the circumstances detailed, your verdict will be for the defendant. The plaintiff must establish it, or it may be established, not necessarily by the testimony simply of the plaintiff, but by any and all the testimony taken together, in the trial of the cause. You do not necessarily take simply the testimony of the plaintiff and say the plaintiff may have failed by his presentation of the facts, if the other facts and circumstances in the case satisfy you that the weight of the testimony is in favor of the allegations on the part of the plaintiff. With respect to this proposition on,the part of the plaintiff, counsel have requested me to instruct you as follows : 1. If the jury find from the evidence that the defendant agreed to place insurance to the amount of 147,500 on plaintiff’s property, and the risk to commence September 1,1884, at 12 o’clock, noon, in consideration of the premium to be paid in .sixty days thereafter, and the defendant neglected or failed to place said insurance to that amount, and a loss resulted to plaintiff thereby, plaintiff can recover in this action the amount of the loss resulting to plaintiff by reason of said breach of contract. Answer : I would, in instructing upon this point, recall the allegations upon the part of the defendant of the business of the defendant, at the time, and his. statements under which the matter is alleged to have been intrusted to him. With those facts in your minds, in connection with those stated in this point, the point is affirmed.1 2. That if the jury find that the defendant agreed to place said amount of insurance, to cover the risk from 12 o’clock, noon, of September 1, 1884, he is bound by said agreement and is liable for the loss resulting to plaintiff from its breach; and the fact that certain insurance companies refused the risk is no defence in law, and affords the defendant no relief from an absolute undertaking to place the insurahce. Answer: The first branch of this point substantially reiterates what is stated in the first point, though a little nakedly stated, but taken in connection with the other facts that I have indicated in answer to the first point, the proposition is affirmed. Of course, the purpose of this point, the first having been affirmed, is merely to point out the fact “ that certain insurance companies refused the risk is no defence in law,” and that position is affirmed.8 To this the defendant makes several answers, which, so far as they are contained in the points that have been presented by the counsel, I will consider. One of them is that this is an undertaking of insurance upon the part of the defendant, as alleged by the statements and claim of the plaintiff; and that under the law of the state such insurance by a private person would be void, the statute requiring that the issuing of insurance policies, contracts and guarantees shall be by a corporation and not by a private individual : That is contained in the fourth point of the defendant. 4. That if the jury believe that Arrott agreed on the first day of September, 1884, absolutely and unconditionally to place the plaintiff’s insurance on that day to take effect from noon of that day, such a contract would be in substance a contract of or guaranty of insurance, and as such prohibited and void under the act of February 4,1870, and plaintiff, therefore, cannot recover. Answer : I refuse that point. I refuse to instruct you that it was a contract of insurance and therefore void.5 On the same branch of the subject there is the third point. 3. Under the law in Pennsylvania there can be no recovery against defendant as if the defendant had himself agreed to insure the property of plaintiff. . Answer: It is substantially the same question as suggested in the 4th point, and for the purposes of this case is refused.6 You will observe, if that point had been affirmed, it would have been the end of the case; that is, the plaintiff could not recover. So, again, I am requested to instruct you: 1. Under all the evidence the plaintiff cannot recover. Answer: This point is refused.3 2. There is no evidence to show any consideration between plaintiff and defendant to support the contract which the plaintiff alleges was made between them, and for non-performance of which this action is brought, and the verdict of the jury must be for defendant. Answer : If this had been a naked request by the plaintiff to the defendant, or a naked undertaking by the defendant, to place for the plaintiff certain fire insurance, there would have been no legal consideration moving between the parties, and even though the defendant failed to perform the undertaking, he would not have been liable for the loss which subsequently occurred. But I do not understand that this is necessarily such a case. If it were this point would be affirmed. I think there is testimony from which the jury may find facts which would create a legal duty and liability upon the part of the defendant. If the jury find that the defendant Arrott was an insurance broker, held himself out to the public as such and solicited business as such from all having need of such services; that the plaintiff’s agent went to Mr. Arrott as such broker for the purpose of employing him to place á part of the desired insurance; that Mr. Arrott represented that it would be to plaintiff’s interest to place with the defendant the full sum of $47,500, and that plaintiff should employ him to place all that sum; that influenced by defendant’s representations, plaintiff’s agent intrusted the matter to him, and the defendant then and there agreed that he would place that sum of insurance for plaintiff; that he would take charge of the matter and would place the entire sum of $47,500 qn plaintiff’s property, the risk to commence at noon of September 1,1884; that the amounts of premiums agreed upon were to. be paid to him sixty days thereafter; that he entered upon the undertaking and placed a portion of the sum, but failed as to about $4,000; that he did not notify the plaintiff of his failure until after the fire; that a fire occurred and loss was suffered by the plaintiff to more than the amount of the insurance which defendant failed to place, it does not lie in defendant’s mouth to say that there was no legal consideration to support the alleged contract, and the point is refused. It is for you to say whether the testimony establishes these facts.4 The defendant sets up/another answer to this claim on the part of the plaintiff which is contained in the 5th point. 5. That if the jury believe that the contract between the parties was that Arrott should do the best he could in placing the insurance, then there is no sufficient evidence of any negligence on Arrott’s part in the performance of the contract, and plaintiff could not recover. Answer : That point is affirmed. If you find that the contract was not as the plaintiff claims it to have been, and such as I have indicated, but that it was simply that Arrott should do the best he could in placing this insurance, not that he undertook absolutely to do it, but that he undertook to do his best to place it, there is no evidence in this cause that I remember, which indicates neglect upon the part of Arrott in a failure of performance of his contract, and the plaintiff could not recover. Those are the two material questions of fact for you to determine; whether the contract is as set up by the plaintiff or by the defendant; whether it was a contract for an absolute undertaking to place the insurance, or whether it was an undertaking simply to do the best he could. 6. There is no admission in this case that the defendant admitted that there was an actual loss to the plaintiff on the brick and terra cotta works of over $4,000. Answer: The point is a little lamely drawn, but I suppose the intention is to say, that the defendant did not admit. There is no evidence that the defendant admitted in words that there was an actual loss to the plaintiff on the brick and terra cotta works of over $4,000, and I do not remember that there was any such evidence; and meaning that, the point is affirmed. But under our rules of court where a party alleges in his affidavit of claim, as the plaintiff did in this case, that the amount of loss amounted to the sum of over $4,000, and that was not denied in the affidavit of defence by the defendant, it is regarded in law as an admission by the defendant that the allegation of the plaintiff in that respect, in his affidavit, is true.7 7. There is no evidence in this case to show that the defendant acted in bad faith to the plaintiff in procuring or failing to procure policies of insurance on plaintiff’s property. Answer: I do not remember any evidence to such effect, and that point is affirmed. . 8. The plaintiff in this case has sued Arrott for not placing insurance, and there is no evidence in the case which justified the assertion that he did place the insurance in certain companies and fraudulently suppressed or canceled it, and a verdict reached by the jury upon the belief that there was such fraudulent suppression would be contrary both to the law and the evidence of the ease. Answer: I do not think that it would be contrary to law to find the fact and the consequences of the fact, but there is nothing, so far as I recollect, in the testimony which indicates that there was a placing of the insurance in certain companies, and a fraudulent suppression or canceling of it by the defendant ; and the point as drawn, with the exception I have indicated, is affirmed. Now, gentlemen, I believe I have stated all that is necessary to indicate to you what the points are, and matters which you will have to pass upon. You will exercise your best judgment. You will try the case, as counsel have stated, without fear, favor or affection, and render such a verdict as the preponderance of the evidence, under the instructions I have given you, warrants. If you find for the plaintiff you find the amount of loss that has been established, with interest, adding in the interest and rendering your verdict in a gross sum. It sounds in damages, for the loss. If you find for the defendant that there is no responsibility on his part, under the evidence and the law, you will find for the defendant without more. The verdict of the jury was in. favor of the plaintiff for $4,641,68, and, judgment being entered, the defendant then took this writ, assigning as error: 1, 2. The answers to the plaintiff’s points.1 8 8-7. The answers to the defendant’s points.3 to 1
118 Pa. 259Trost v. Dingler (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 135½ October Term 1887, Sup. Ct.; court below, No. 651 March Term 1886, C. P. To the number and term of the court below an issue was framed upon the precept of the register of wills, wherein Catharine Dingier and others, who were the heirs at law of Gottlieb Weiss, deceased, were plaintiffs, and Henry and Margaretta Trost defendants, to determine the truth of objections filed to the admission to probate of a testamentary paper dated September 21,1885, as the last will of said deceased, which objections were : 1. That there was undue influence used by the said defendants to induce the said decedent to make said alleged will in their favor. 2. That said alleged will was not the free expression of the will of said decedent, but was made by him while under duress and in the power of the said defendants. 3. That the signature of the deceased to said alleged will was procured by fraud and by false representations as to its contents. In the said alleged will, dated as before stated, after providing for the payment of his debts and funeral expenses, the testator devised to Henry Trost and Margaretta, his wife, a two-story frame house, with lot of ground attached, in the 26th ward, Pittsburgh, “ for their own proper use and behoof forever, for them taking care of me;” and to the same persons he bequeathed and devised all his other estate, real, personal or mixed, “ for their own proper use and behoof forever.” Gottlieb Weiss had been a soldier in the army. His wife died, and, becoming disabled, he was admitted to the Soldiers’ Home at Dayton. While there he was granted a pension, receiving as arrearages about $5,000. In June or July, 1885, returning to Pittsburgh where he had resided, he went to board with Henry Trost, with whom he had been acquainted for about thirteen years. Soon after, he bought a house and lot, and rented the house to Henry Trost, reserving for himself a front room down-stairs, and paid Trost $4.50 per week for his boarding and washing. While he lived, he suffered from a partial paralysis and was very feeble physically and helpless. The will was written, in the presence of the attesting witnesses and in the absence of the proponents, by B. A. Hartman, alderman, and the testator died about one month thereafter. The beneficiaries in the will were not related to the testator. A number of witnesses, under objection and exception for the defendants, were admitted to testify for the plaintiffs as to conversations and statements by the deceased, expressing feelings toward the defendants the opposite of those which would lead him to make a will in their favor. The other material facts appearing in the testimony are sufficiently indicated in the charge of the court below and in the opinion of this court. At the trial, on November 27, 1886, the Court, Stowe, P. J., charged the jury and answered the points presented as follows : In this case, the simple question is whether this paper is the will of Gottlieb Weiss. There is no question about his capacity to make a will if left alone; that he had mind enough, and the only question for us is whether he was unduly influenced in the making of it. A daughter, or son, or other relative, or a stranger, might by argument or solicitation induce a man to make a will in his or her favor, but if the testator was not put under any constraint or restraint, was merely urged, and the execution of the will was his voluntary act, it has got to stand and it don’t make any difference whether the other heirs at law like it or not. If there be unlawful solicitation or argument or control which prevents the voluntary action of the testator, and substitutes the will of the party or parties controlling him, the will is not his and may be set aside. If a man is in full health and life and vigor when he makes his will, the evidence to set it aside should be very strong, although he might take his property from his natural heirs and give it to strangers; but where a man is sick and weakly, and particularly where he is under the control of the one in whose favor the will is made, a much less degree and quantity of proof is sufficient to justify the finding that improper influence has been used. Where a man is shown to occupy a position of peculiar confidence to the testator, his special advisor, his ■ intimate friend, controller, manager, if such a thing can be (and as it sometimes is) the law looks on a will giving the property to him, and taking it away from the natural heirs, with grave suspicion, and all of these matters are to be considered when the case gets before a jury. Taking the evidence indicating that the will was made voluntarily, and that tending to show it was made under duress, the jury must arrive at such a conclusion as they think it all warrants. In this case the evidence seems to show, and it is not controverted, that the will was made and signed voluntarily so far as what occurred at the time of its execution is concerned. The scrivener says that it was voluntarily signed, there was no actual physical control at that time. No one took the testator’s hand when he was not conscious and made the mark for him. He seemed to know what he was doing. One of the witnesses says he rather reproached Weiss for not giving him anything and Weiss gave him $5.00. The testimony all tends to show that whatever may have been the influence acting on the man’s mind to induce him to make the will there was no physical control exercised at the time of its execution,. but that wont justify you in saying it is Weiss’s will. That might be true and yet from fear, apprehension, by reason of what had been done before or that which he was afraid might follow, Weiss may have done as he did and that is really the test of whether this is his will or not. [There must be evidence when you take the whole case together which reasonably satisfies you that the suspicion, which otherwise might be aroused or created from the fact of this old man being in the custody and general charge of these people, is unfounded, that the will was made voluntarily and not under compulsion by them. We say as a matter of law that you are to look on the making of this will with some suspicion, but don’t understand me as saying you should strike it down. You should go into the examination of the case with the impression or suspicion that probably something was wrong about the will taking, as it does, all the property away from the natural heirs.]13 You will then consider the other side of the case. The defendants have produced witnesses who testified' that when the testator was alone with them he said what he intended to do, and that his intentions were in exact accordance with the will he made. He not only told them what he intended to do, but he gave his reasons, that his sisters didn’t care for him and he didn’t care for them; he intended to help those that helped him, etc. All of these matters are for the jury to consider. If true, these facts would relieve the defendants from any suspicion connected with the making of the will, and would show that the very object the testator intended to be carried out long before he made his will, and at the time he made it, was actually carried out. Points submitted by plaintiffs: 1. If the jury believe from the evidence that the deceased, Gottlieb Weiss, before the making of his will, was sick, weak, and helpless, that he was under the sole care and. control of the defendants, Henry Trost and Margaret his wife, that they, or either of them, urged and troubled him to make a will in their favor, and that finally in order to get rid of their importunities and in order to purchase peace, he was induced and felt forced to make the will that he did, contrary to his real wishes and desires, then they must find for the plaintiffs. Answer: Affirmed.5 2. If they believe from the evidence that the defendants, or either of them, took advantage of the weak condition of Gottlieb Weiss, he being sick and helpless, to trouble him with frequent and urgent importunities to make a will in their favor, and that these urgings were so constant and so troublesome as finally to force him to a compliance in order to purchase peace, this would be the exertion of such undue influence as to make the will invalid, and the verdict must be for the plaintiffs. Answer: Affirmed.6 3. If tfie jury believe from the evidence, that the will, at the time of its execution, was not fully explained to the deceased Gottlieb Weiss, so that he did not fully understand its contents, the will would be invalid, and the verdict must be for the plaintiffs. Answer: Affirmed.7 4. Even if they believe from the evidence that it had been the intention of the deceased Gottlieb Weiss to devise to the defendants his real estate, yet, if they also believe that he had not intended to leave them also his personal property, and that the clause in the will relating to the personal property had not been fully explained to or understood by him before the execution of the will, then the whole will would be invalid, and the verdict must be for the plaintiffs. Answer: Affirmed, so far as this issue is concerned.8 5. If the jury believe, from all the evidence in the cause, that Gottlieb Weiss was prevented from making his free will, and was influenced and controlled by Henry Trost and his wife, and compelled by their control to make such a will as they desired, then such was not his last free will and testament. Answer: Affirmed.9 Points submitted by defendants: 1. That, under the law and all the evidence in the cause, the verdict should be for the defendants. Answer: Refused.10 2. It having been shown that the will in controversy was executed with due solemnity and adopted by Gottlieb Weiss, the testator, by affixing his mark thereto, the presumption of law is, that the will is a good and valid one, and that the burden of proving that it was executed under undue influence is on the plaintiffs who allege it, the degree of proof necessary being that which will fairly and fully establish the allegation made. Answer: This is a correct statement of the general rule of law, but requires some explanation under the evidence in this case. [The court reads from Boyd v. Boyd, 66 Pa. 293, from “ Undue influence,” etc., to the end of the paragraph.] Applying this rule to the facts of this case: The clear evidence is, that Gottlieb Weiss was an invalid and cripple; that he was dependent, when in the house of the defendants, upon their attention for food and drink, and all those attentions which enabled him to attend to ordinary wants of nature. He was then alone in their general charge and custody. He was weak and suffering. His heirs at law seem to have had little, if any, intercourse or communication with him for some time before the making of the will. He was more or less at the mercy of the defendants. Now, under such circumstances, the rule of law is, that a will devising all of a man’s, property, or even a considerable portion of it, to a stranger to his blood, should be looked upon with suspicion, and this should receive the fullest explanation by the evidence on the part of the proponents of the will. The defendants, however, allege they have done all of this. They point to evidence showing the fact that the testator was helpless and almost deserted. That his sisters took no interest in his comfort or welfare, that they took him in and cared for him, and gave him attention of a most disagreeable nature necessary to his helpless condition, and that he, appreciating all these things, spontaneously, or at least voluntarily and freely, made this will to show his gratitude and compensate them for their kindness to him in his helplessness. The point is then affirmed, but the jury must look at all the evidence showing the peculiar situation of the testator so far as being improperly or unduly influenced by the defendants, in connection with such evidence as there may be directly tending to show that undue influence was actually used on the one side, and all the evidence tending to show the will was the voluntary act of Weiss, and the reasons for so making it. If, upon the whole, you think the will was made as Weiss actually desired it to be, and was the result of his own wishes uncontrolled by defendants, or either of them, then your verdict should be for defendants.11 8. Undue influence of the kind which will affect the provisions of this will, must be such as subjugated the mind of the testator to the will of the defendants; and in order to establish it proof must be made of some fraud practiced, some threats or misrepresentations made, some undue flattery, or some physical or moral coercion employed, so as to destroy the free agency of the testator, Gottlieb Weiss, and these influences must be proved to have operated as a present constraint at the very time the will was made; and unless the jury find from all the evidence in the cause, that such influence was used by the defendants upon the testator at the time and in the manner as hereinbefore set forth, their verdict must be for the defendants. Answer: Affirmed, subject to the explanation to the second point.12 As you have already discovered and as it is hardly necessary to say the great difficulty in deciding cases arises from the uncertainty of human testimony. If we knew exactly how much and what of a witness’s story could be believed, we would have very little trouble in arriving at conclusions; but every case, as a general rule, involves a dispute as to facts and particularly a case of this kind. The witnesses on one hand testify to that which would indicate that a great outrage had been perpetrated on the old man. On the other hand the defendants bring in witnesses who make it perfectly clear that this is a bona fide will; that Weiss carried out what he intended at the time and what had been his intention before. That testimony may be reconciled. Weiss may have been a little under the influence of liquor and said things he didn’t mean; he might have called ugly names and done that which would tend to show, having done that which was inconsistent with that state of mind, the will was not what it would have been if he had been left alone. On the other hand, you have testimony from witnesses who seemed to be reliable that would indicate a different state of facts; amongst other things they testify that he declared his intention from time to time to make the will just as he did. Starting as I said before with the doubt or suspicion, if you choose to use the word, as to whether this is the will of Weiss, look at the testimony on the one hand tending to show it is not; then at the evidence on the other side tending so strongly, as it seems to do, to show it is, and arrive at the best conclusion you can. If you think on the whole Weiss made the will without any illegal constraint or control over him you ought to find for the defendants; but if you think it was not the will of Weiss, that it is a will injected into him by the process claimed by the plaintiffs here, that he was induced to make it by an undue influence exercised over him, you ought to find for the plaintiffs. The verdict of the jury was for the plaintiffs. A motion and reasons for a new trial being argued, and new trial refused, judgment was entered upon the verdict. Thereupon the defendants took this writ, assigning for error, inter alia: 5-9. The answers to the plaintiff’s points.5 to 9 10-12. The answers to the defendants’ points.10 to 12 13. The part of the charge embraced in[ ]13 1. Latitude is allowed in the admission of evidence in cases involving fraud. Practically, the declarations of the testator, as to his feelings towards the beneficiaries, were proven to have run during the whole time of his residence with them. The defendants availed themselves of the same latitude as to the feelings, state of mind and declarations of the testator, to the fullest extent. 2. The evidence (reviewed) was sufficient to establish undue influence operating at the time of the execution of the will. The fact was so found by the jury.
118 Pa. 272Hitchcock v. Bacon (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 136 October Term 1887, Sup. Ct.; court below, No. 444 June Term 1886, C. P. No. 1. On May 1, 1886, a summons “in trespass on the case” was issued in a suit by Frank Bacon against L. P. Hitchcock and Sarah L., his wife, and Thomas Liggett. The declaration averred that on April 13, 1885, the plaintiff was in the lawful occupancy of a store-room on the first floor of the building and premises at No. 446 Smithfield street, Pittsburgh, for the term of one year ending March 31, 1886, under a lease from said defendants ; that said store-room was stocked and filled with many and divers goods, etc.; that the defendants well knowing, etc., and in breach of the covenant of quiet enjoyment, “ did, unlawfully and by force and arms, enter upon the said premises and by their agents, employees and workmen did then and there, unlawfully and by force of arms, pull down and destroy the said building and store-room,” etc. To this declaration, the defendants pleaded, not guilty, and, specially, that the plaintiff was not in lawful possession of said premises on the day, etc.; that the occupation and maintenance of said building had become dangerous and unlawful and that by notice arid proceedings of the proper officers of the city, commenced before March 1, 1885, and due notice to the plaintiff, the said building was ordered to be torn down, and was entered upon and torn down by such lawful authority; and, further, that prior to March 1, 1885, because of the plaintiff’s failure to pay his rent due, the defendants caused notice in writing of the forfeiture of his lease to be served upon the plaintiff, with a written demand of possession, in accordance with the terms of the lease. At the trial on May 9, 1887, it appeared that in 1888 a lease, expiring on April 1, 1884, at $500 per annum, was made to the plaintiff, by Sarah L. Hitchcock, the owner of the property. It was not formally renewed in 1884, but the plaintiff held over, a three months notice to quit not having been given. On April 27, 1884, a child was killed by the fall of a part of a wall of the building occupied by the plaintiff and on May 15,1884, a notice was served upon Thomas Liggett, the agent of the owner in the renting and management of her, buildings, by J. C. Brown, the city inspector of buildings, to the effect that, at the request of two citizens, he had examined said building and found it in a dangerous condition, and directing him to “ forthwith remove or repair,” the same, etc. A like notice was served on January 16, 1885; another on March 25, 1885; and on April 3, 1885, a peremptory notice to remove the building in five days, was served upon said agent. On April 13, 1885, P. J. Devlin, under contract with the city authorities, proceeded, after notice to the plaintiff, to tear the building down compelling the plaintiff to move out, who thereupon brought this suit. The other material facts fully appear in the charge of the court below and in the opinion of this court. The court, Stowe, P. J., charged the jury orally: After April 1, 1884, we find Bacon in possession of these premises under a lease that expired on April 1,1885, or would have expired, provided Liggett or the Hitchcocks had given him notice to go out at that time; but, because of the failure to give that notice he had a right to hold over from April 1, 1885, to April 1, 1886. Then, we find, as part of the history of the case in evidence, that Kaufmann Bros, made an arrangement with the Hitchcocks to lease this property, and they were to have possession on April 1, 1885. Bacon was in possession with the right to stay until April 1, 1886, one year later than the time agreed upon for the Kaufmanns to take possession. While that was the existing state of facts, we find the defendants putting this provision in their lease with the Kaufmanns: “ The parties of the first part covenant and agree to give the said J. Kaufmann & Bros, absolute, quiet and full possession on April 1,1885, of all the property hereby demised, or if any person refuses to quit the same, then the parties of the first part are to have said tenant ejected as soon as possible, and if the possession is not given before May 1, 1885, then this lease, at the election of J. Kaufmann & Bros., shall be null and void.” Such then was the condition of affairs when the negotiations between the plaintiff and the defendants, through Mr. Liggett, are said to have occurred, and that brings us to the first question in the case. Bacon had a right to remain there after April 1, 1885, for a year. [The owners of this property were interested, of course, in getting him out, for as we see, they had covenanted and obligated themselves to give possession of the property to the Kaufmanns. The question then was, how are we going to get Bacon out ? And I suggest the matter of the lease to the Kaufmanns as bearing on the fact we submit to you, whether or not in these proceedings, particularly that portion which involved the ejectment, the Hitchcocks and their agents are to be held responsible, or whether these facts throw any light upon the question of whether or not these were the acts, legal or illegal, of the city officials and those acting under them; because if the ejecting was done by the city officials alone, without connivance or unknown to the owners of the property, they standing back, not interfering-when they might have interfered, the city authorities are responsible, and not the defendants. But if this thing was done by an arrangement, done by connivance of the defendants, if the thing was allowed to go on in bad faith, was put in that shape by them, or, if not concocted, even acquiesced in by them, so as to bring about that which otherwise would not have happened, they are as much responsible as if they had stood on the curbstone and given general orders to “ tear away, boys, and throw him out.”] 4 [The defendants allege that, about March 25th, Mr. Liggett made an arrangement with Bacon to go out for the consideration of $150.] 7 If you believe that, it ends the plaintiff’s case; it was his duty to go; he was under contract to go; if he did not, the parties would have had a right, without the interference of anybody else, to employ men, or go themselves, and take his goods and quietly and decently put them out, and if he did not go out, personally, to quietly pick him up and set him gently on the curbstone, and he would have had no right to complain. He was there in violation of law, he was a trespasser, and the law gives the right to a man to get possession of his property, if he can do it peaceably, not doing any injury or producing a breach of the peace, even without legal proceedings. It is not controverted in this case that if this contract was made by Bacon your verdict should be for the defendants. The counsel for the defendants so allege, and the counsel for plaintiff do not controvert the position, and certainly it is incontrovertible. [The property was torn down; it was torn down by a man named Devlin'; as far as his testimony goes, the city officer or street commissioner gave him directions, and upon the face of it the work seems to have been done by the city officials. If that were all, and if it were the real fact, that these defendants did not interfere with or connive at the tearing down in such a way as to make them personally participants in the act, for their own purposes, they cannot be held personally liable, whether they got the benefit of it or not. Had then the defendants anything to do with the plaintiff’s eviction ? Did they or some one of them participate in or connive at the removal of the plaintiff from the premises in question?] 6 You have heard what has been said by the counsel. [You have for your consideration the fact that Bacon was there with the right to stay for another year; that his staying there might seriously interfere, and probably would, with the execution or carrying out of this contract, which would probably be, it may be assumed it was, a benefit to the defendants; that Devlin had previously done work for the defendants; that the inception of this thing, as far as he, Devlin, was concerned, seems to have been with Liggett, the agent for the other defendants; that after the work was done Devlin’s bill was approved by the street commissioner, and the money paid by Liggett, as the agent of the defendants. Whether these facts are sufficient to satisfy you fairly that the Hitchcocks were conniving at this thing, that it was not merely a collateral proceeding in which they were taking no part, but that they were actually the parties who were bringing it about, is for you to say.] 5 If they are not sufficient to satisfy you, fairly lead you to that conclusion, your verdict must be for the defendants on that point..... As to the first question, are you satisfied by the weight of the testimony, because the burden of proof is on the plaintiff to satisfy you of that, that these defendants, or some of them, had anything to do with the getting up of that which resulted in the ejectment of the plaintiff? If you cannot conclude that they had, then you must necessarily find a verdict for the defendants, and the plaintiff must find his remedy for his injury, if he has been injured, somewhere else. But if you should find, if the evidence leads you fairly to conclude, that the defendants are responsible, that they were conniving at or bringing about this eviction, whatever means may have been used, then you have to go to another question; because as I have said, if there was an agreement , he should go out, they had a right to put him out, and it will not make the right any less because the defendants may have recurred or resorted to a subterfuge or circumlocution. If they had a right to go and throw him out bodily, it don’t make them liable because-they may have resorted to this other means. It don’t change the aspect of the case at all. It stands just precisely as if they had gone there themselves, and makes it no better or worse that they used the city officials to accomplish a proper purpose. Was the arrangement made, as claimed by the defendants, that the plaintiff was to go out on the 1st of April, and was to have $150 for going? If you believe it was, that ends the plaintiff’s case, and Avould, even if the defendants stood in court avoAving the eviction was at their request and expense, or if they had been personally concerned in it. If you find that the defendants are liable by reason of their participation in this eviction, has the plaintiff a right to complain of their turning him out contrary to law, and that depends on whether or not he agreed for the consideration that has been mentioned, or for any consideration, to go on the 1st of April and refused to take it. If you should find he did, he cannot recover against anybody; or if you should find that he did not make that arrangement, and that he was turned out without the interference or participation of the defendants, your verdict should be for them, because although the plaintiff has been wronged, there is no evidence to show that the wrong was done by the defendants, and you cannot hold one party, who has not been a participant, responsible for the wrong done by another. [The court read and answered the defendants’ points, as follows:] 1. That under the pleadings and evidence the plaintiff cannot recover. Answer: Refused. It is a matter for the jury to determine, under all the testimony, whether the defendant actually participated, directly dr indirectly, in the eviction, and of course involving the right, as I have said, to turn the plaintiff out, if they did participate.1 2. That if, as the testimony shows, the building was torn down, and the plaintiff put out by the officers of the city of Pittsburgh without doing so at the instance of the defendants, the plaintiff cannot recover. Answer: Refused. This is refused, and refused on what I take to be a proper meaning of the word “ instance.” If it appears that defendants connived ak or by active or passive means allowed or encouraged the acts of .those who tore down the house for the mere purpose of ejecting plaintiff, they would be liable; but if the proceeding to condemn the property was not at the instance, or with, at least, the connivance of the defendants for the purpose of illegally ousting plaintiff, but was the sole act of the city officials, whether legally or illegally executed, plaintiff has no remedy against defendants, and your verdict should be in their favor.3 B. That under the evidence if the plaintiff is entitled to recover he cannot recover for loss and profits, or other than his direct and immediate damages. Answer: Refused. 4. There is no evidence in this case showing that the defendants took any part in ejecting the plaintiff, or taking down the building. Answer: Refused.3 5. That if the jury believe the testimony of Thomas Liggett, M. A. Woodward and EL C. Love as to the plaintiff’s agreement to go out of the premises, and the testimony of H. C. Love thereon is wholly uncontradicted, then the plaintiff cannot recover in this action. Answer: I don’t know whether I ought to affirm that point or not. I will say this: If you believe the facts testified to by those gentlemen, the plaintiff cannot recover; or, in other words, if you believe that this contract was made as alleged by them, as their evidence would indicate it was made, the plaintiff cannot recover. 6. That if the jury should find from the evidence that any of the defendants did tell Bacon to take down the building, still to make them liable the jury must find from the evidence that such defendant or defendants were in some way instrumental in tearing it down. Answer: Affirmed. [The court concluded the oral charge as follows:] If, on the whole, you think the plaintiff is entitled to damages, you come to the question of how much. [In the first place he would be entitled to recover the direct injury done to his stock by reason of the removal, the damage done by the snow or rain, if there was any, or any other injury done that would decrease the money value of it as it stood previous to the removal, and as it stood in the new store after it was removed, assuming that it was removed with due care. At all events, we can say that he is entitled to recover the actual damage done by the proper removal of the stock, whatever that may have been. He is then entitled to recover the difference between what he had to pay in rent in the place that he was, and the rent that he had tó pay, not what he agreed to pay, in the new place. The evidence don’t show he could have gotten a better place for a less price, or one that would have answered better. Those are two elements. Then, there is another, and one a little more difficult to determine, and which, under our view of the law, we must submit; that is, the actual loss of profits or to his business arising from this removal.]8 It appears he was making a certain amount of money before. Of course, the jury cannot tell what he would have made the ensuing year, but what he made the year before is some basis to go on, and we have got to judge of the future by the past. That would give you some data as to what he probably would have made, but you see we get into, probabilities here and then you have the testimony as to what he did make. Did that result from causes not consequent to the removal, from bad business, or from neglect of the business, or from anything other than the mere fact that he was compelled to move his place of business, and as incident to the change ? Of course, where a man has an established business and moves, it takes him some time to get it back. In a city like'this where there is so much competition even a short distance sometimes makes considerable difference. All that is to be considered by the jury. He would have had a right to stay to April 1, 1886, and no longer. You can only consider what he would have made that year, because the defendants could then have given him notice, and I presume they would have exercised the right and made him go out. Those three matters constitute the subjects which you have a right to consider, and for which you would have a right to return a verdict for damages based on your judgment, reasonable damages, as to .the amount to appropriate to each of those particular items. The jury returned a verdict for the plaintiff for $1,650. Judgment being entered, the defendants took this writ, assigning for error: 1-3. The answers to the defendants’ points.1 2 3 4-8. The parts of the charge embraced in [ ] 4 *° 8
118 Pa. 283Briggs & Drum v. N. Holmes & Sons (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 139, October Term 1887, Sup. Ct.; court below, No. 237 September Term 1885, C. P. No. 1. On July 2, 1885, this suit was begun below by N. Holmes & Sons, bankers, of Pittsburgh, against C. Q. Briggs and John Drum, partners as Briggs & Drum. In 1884, Briggs & Drum, live-stock commission merchants at Central Stock-yards, sold stock for Alexander & Co., who drew on them for the proceeds, $2,700, the draft being sent to N. Holmes & Sons for collection. On Saturday, May 24th, Briggs & Drum took up the draft by a cashier’s check of the Penn Bank drawn to the order of N. Holmes & Sons. On the following Monday, the Penn Bank suspended and the cashier’s check was never paid. N. Holmes & Sons held the check for six or eight months before they demanded payment from Briggs & Drum. A number of drafts on Briggs & Drum, aggregating about $80,000, had been collected in the same manner, N. Holmes & Sons refusing their personal checks, and demanding certified checks or cashier’s checks. On December 19, 1885, N. Holmes & Sons received a dividend out of the assigned estate of the Penn Bank. At the trial on March 31, 1887, before Stowe, P. J., the court answered the points presented and charged the jury as follows: Defendants’ points: 1. That the acceptance by plaintiffs from defendants of the cashier’s check of Penn Bank, drawn to plaintiffs’ order for' the amount of the draft of Alexander & Co., and the delivery to defendants of the said draft, followed by failure on the part of plaintiffs to notify defendants of the dishonor of said cashier’s check, and the retention of said check until the present time, and collection of dividend on account thereof, is a bar to the plaintiffs’ right to recover in this suit. Answer: Refused.1 2. If the jury find that N. Holmes & Sons accepted, from Briggs & Drum the cashier’s check of. the Penn Bank as payment of the draft of Alexander & Co. on Briggs & Drum, the verdict must be for defendants. Answer: This is correct as a proposition of law, but, under the facts in this case, we think there is no sufficient proof to uphold the jury on that question ; therefore this, point is refused.8 3. In determining the question whether said cashier’s check was accepted as payment, the jury should take into consideration all the circumstances connected with the giving of said check, and the surrender to Briggs &' Drum of the draft; also, the failure of N. Holmes & Sons to- give notice of the non-payment of said check, and the fact that they have retained said check and collected a dividend thereon from the Penn Bank. Answer: This point must be refused ; as we have already said there are no sufficient facts in evidence to justify the jury in finding payment.3 4. That the failure on the part of N. Holmes & Sons to give notice to Briggs, & Drum of the inon-payment of said cashier’s check, and their retaining possession of said check without offer to surrender same until the present date, and collecting dividend thereon from thy assignee of the Penn Bank, raise a sufficiently strong presumption that said check was accepted as absolute payment of the draft, to justify the jury in finding a verdict for defendants. Answer: Refused.4 Plaintiffs’ point: 1. That under all the evidence, the verdict of the jury must be for the plaintiffs for the amount .of the check given by defendants, with interest from May 26, 1884, less a credit for the dividend received from Penn Bank by plaintiffs. Answer: Affirmed.5 Gentlemen of the jury: In the view we take of this case, it heeomes our duty to give you peremptory instructions that your verdict, under the testimony, must be for the plaintiffs.6 A verdict for the plaintiffs having been returned, and judgment entered thereon, the defendants took this writ assigning-as error: 1-4. The answers to the defendants’ points.110 4 5. The answer to the plaintiffs’ point.5 6. The peremptory instructions to the jury.6
118 Pa. 289Guckert v. Lowrie (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 141 October Term 1887, Sup. Ct.court below, No. 678 June Term, 1885, C. P. No. 1. On June 1, 1885, James Lowrie brought an action of trespass against Isaac Hippely, W. R. Fisher, Wm. Guckert and David S. McKnight, to recover damages for;’the alleged illegal sale of the plaintiff’s personal property under a landlord’s warrant. At the trial on October 21, 1886, the jia'cts appeared: That on April 11, 1885, W. R. Fisher issued' to D. S. McKnight, constable, a landlord’s warrant against one Lappe, for the collection of $120 rent in arrear on April 1st, for premises on East Ohio street, Allegheny. At that time James Lowrie was in possession of the leased premises under an arrangement made therefor with Isaac Hippely and one Hopf, the sureties for Lappe on his lease, which arrangement, however, was not recognized by the landlord. Under this warrant a distress was made of the goods of James Lowrie and a sale thereof advertised to be held on the premises on April 29th. On that day, it was ascertained that the household furniture levied upon had been removed and stored with the Union Storage Company. Hippely paid the rent due and the landlord indorsed on the back of the warrant an acknowledgment of satisfaction and an assignment to William Guckert,' of the rent due, and costs, “ and his right acquired under distraint and levy therefor.’* Afterwards, McKnight, the constable, with no direction or authority from Guckert, re-advertised the goods and sold them in bulk at the Union Storage Co.’s grounds, for $85, to one Kenworthy, who bought them in for Lowrie, the money realized being paid to Hippely. On the ground that no evidence, sufficient to go to the jury as against Fisher, appeared, a non-suit was ordered as to him. The court, Collier, J., charged the jury as follows: The defendants request the court to instruct the jury: 1. The payment of the amount of rent due as distrained for, by Guckert to Fisher, April 29, 1885, was not a payment of rent due, such as would release the goods distrained upon •therefrom; and the assignment of April 29,1885, from Fisher to Guckert, gave Guckert the right to prosecute the distress proceedings, as instituted, to realization of the money mentioned in the warrant of distress for his use. Answer: Refused. ' 2. If the constable, at the sale, stated that no possession of the goods could or would be delivered by him to the purchaser, but that the purchaser must make his own arrangements with the storage company as to the getting possession, and that after the sale McKnight simply signed a disclaimer of any right to detain the same, there can be no recovery in this action for taking the goods sued for in this action, against Hippely, or Guckert, or McKnight. Answer: Refused. 3. Under all the evidence in this case, the plaintiff cannot recover. / Answer: Refused. It is undisputed that the landlord, Mr. Fisher, had owing to him and due, rent that accrued while the tenant was in the possession of that saloon. It is undisputed: that there was rent due by a man named Lappe, who had been in possession ; that the plaintiff was in possession and had his’goods on the premises ; that the landlord issued a landlord’s warrant and levied on the goods on the premises; that the goods were moved to the storage company either by the consent or allowance of the landlord, or under the condition that he- should leave the premises. It is undisputed that after they were removed, Mr. Hippely, who was bail for the man Lappe, would have to pay the rent if Lappe did not pay it. It is- undisputed that Mr. Hippely paid the rent to the landlord, and that the landlord assigned, as he thought he had a right to do, all his rights under this warrant to Mr. Hippely or to a man for him, which is the same thing; that the landlord then indorsed on the warrant that he had received pay and satisfaction for it, and then withdrew; did not order the sale to go on, but just left it, and, as the constable says, would not say much one way or the other; that then Mr. Hippely and the constable undertook to proceed under the warrant to secure himself. Now, gentlemen, that raises all the questions. Under the laws of Pennsylvania could Mr. Hippely do-'that? That is the whole question; and I am of the opinion.that Mr. Hippely, while he may have acted honestly, had not that power; — he could not use that warrant; and the reason is, that the right to issue a landlord’s warrant and execute it is a personal right of the landlord alone. It is the only case, where a private individual can issue a public warrant. It is only for himself he can do it, and he cannot assign it to or give anybody else the right to issue or to use that warrant. Nor can the bail be subrogated to the right of or take the position of the landlord, and particularly when the officer who is executing the warrant is notified that the landlord has received his money and is paid in full. Now, this may be a hard rule and I think it is on the merits of the case, but the law I apprehend, is as I have stated it.; I have no doubt that the bail cannot be subrogated to the rights of the landlord, nor can he take an assignment to enable him to proceed and collect the rent under a landlord’s warrant. The right to issue a landlord’s warrant being a personal right in the landlord, he is the only person to whom the law gives the right to execute so summary a proceeding. That being my view of the law, and it is sustained by the authorities in the state, the next question will be, what position were the defendants in ? They were in this position: The officer who executed the warrant and sold the goods and the parties who ordered it, were all trespassers. - That being the case the next question would be, what were the damages ? It is perfectly immaterial whether Mr. Lowrie, the plaintiff, owed the rent and owes it still; his property cannot be sold except in a legal way. It is shown in this case that certain goods were sold, and an order given for the delivery of all of them, by one of the parties. There is also evidence that the defendant, to protect himself, had a friend to buy in the goods for him, and that he got them into his possession afterwards for a certain sum of money. The measure of damages is the fair market value of the goods at the time of the trespass — at the time of the sale. Upon that you have evidence on both .sides. You take the articles that were sold; they went back into the hands of the plaintiff; ask yourselves, from the evidence, what was the market value of them ? Some of the witnesses put it as high as from three to four hundred dollars; others put it'lower, and it is contended that the. price they brought at the public sale by the constable, with bidders present, would be evidence, and it is some evidence, of the value of the goods. You take the whole case and say what the value of the goods sold was, and that amount the plaintiff would be entitled to recover. The jury returned a verdict against Isaac Hippely, William Guckert and D. S. McKnight for $878. On the argument of a motion for a new trial, the plaintiff filed a stipulation reducing his verdict to $250, and judgment being entered thereon, William Guckert took this writ, assigning for error: 1. The answer to the defendant’s third point.1
118 Pa. 294German N. Bank v. Farmers' D. N. Bank (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 147 October Term 1887, Sup. Ct.; court below, No. 708 June Term 1885, C. P. This was an action in assumpsit brought by the Farmers’ Deposit National Bank against the German National Bank, the narr. wherein, in addition to the common counts, contained a special count, which after setting out that on May 26, 1884, the plaintiff presented to the defendant for payment a check dated May 24, 1884, drawn by the Germania Savings Bank upon the defendant to the order of the Penn Bank, for $20,000, which had been duly indorsed by the said Penn Bank, delivered to and held by the plaintiff, proceeded: That the said defendant then and there, and upon the day aforesaid, having in its possession sufficient funds of the said Germania Savings Bank to pay the said check to the said plaintiff, then and there received, accepted, paid and cancelled the same. That subsequently thereto, and upon the day and year aforesaid, the said defendant, at the instance of and for the purpose of enabling the Germania Savings Bank aforesaid to obtain some advantage in a settlement of accounts by it to be made with the Penn Bank, the payee of said check, returned the said check to the plaintiff, and alleged and averred that said check was not good and that said receipt, acceptance, payment and cancellation by it, the said defendant, had been done by its mistake, and procured the said plaintiff to repay to the said defendant the amount of the said check previously by it, the said defendant, paid to the said plaintiff as aforesaid, to wit, the sum of twenty thousand dollars; and thereupon and in consideration of the said payment by the said plaintiff upon the day aforesaid guaranteed to the said plaintiff that such receipt, acceptance, payment and cancellation of said check had been previously made by it, the said defendant, by its mistake and inadvertence, and the defendant there promised and agreed to indemnify the said plaintiff from all loss by. reason of the said repayment of the said money by the said plaintiff to the said defendant; and said defendant saith that said averment and allegation of said defendant was false, and that said check was good and drawn against funds of said Germania Savings Bank in the possession of said defendant and was in fact received, accepted, paid and cancelled by the said defendant before its return to plaintiff, and that the said receipt, acceptance, payment and cancellation was not by the mistake of defendant, as averred and alleged by it, but properly done by said defendant and with full knowledge on its part. The rules of the Clearing House Association provider “ Errors in exchanges shall be adjusted by the banks concerned, and checks not good shall be returned to the bank depositing them, according to the regulations now in force, viz.: before one o’clock p. M. The association not to be responsible in any case.” At the trial, on May 13, 1887, the plaintiff offered in evidence a notice in writing from Henry Warner, assignee of the Penn Bank, to the Farmers’ Deposit National Bank, that the two checks of the Germania Savings Bank, dated May 24, 1874, one on the German National Bank for $20,000 and one-on the Third National Bank for $21,942.21, and deposited with it for collection, were improperly returned to it by the said banks respectively, after they had been paid, and he would expect the Farmers’ Deposit National Bank to make good to him- as assignee the amount .of said two cheeks. Objected to as incompetent and irrelevant. Objection overruled, and evidence admitted.1 George R. Duncan, called for plaintiff, was asked on cross-examination : Q. You have stated that the placing of checks upon the file, whether they are received over the counter or through the clearing house, indicates an acceptance. Are there not two kinds of acceptances, a conditional acceptance of checks received through the clearing house subject to the right to return within the hours fixed by the clearing house, and a final acceptance ? Objected to as riot cross-examination. Objection overruled, and evidence admitted.8 Q. Are there not, and can there not be, two kinds of-acceptances, a condiditional and an absolute acceptance ? Objected to for the same reason. Objection overruled and evidence admitted.3 Robert Hyslop, called for defendant, testified that he had been engaged in the banking business for nineteen years, and was familiar with the customs and usage's of banks in relation to checks under the Clearing House Association rules. Q. According to the custom of banks, state what, in your opinion, is the effect of a file-cut on a check sent through the clearing house and returned to the bank sending it before the hour allowed by the rules of the clearing house for the return of such checks had expired. Objected to, that the witness does not know the custom of banks in Pittsburgh. Objection sustained.4 The defendant proposed to prove by the witness that, according to the general custom and usage of banks and bankers, a file-cut in a check sent through the clearing house and returned to the bank sending the same before -the hour fixed by the clearing house rules for the return of checks not good, indicates not an absolute acceptance but simply a conditional acceptance of the check, subject to the right of the bank on which it was drawn to return it any time before the expiration of the clearing house hours. Objected to as irrelevant and incompetent, and specially, as this witness has no knowledge of the custom in Pittsburgh, but is from New York, city. Objection sustained.6 Charles Seibert, secretary and treasurer of the Germania Savings Bank, called for the defendant. Defendant proposes to prove by the witness on the stand that on the 24th day of May, 1884, the Germania Savings-Bank held a check of the Penn Bank for an amount in excess of the check now in litigation, which check was payable to the order of the Germania Savings Bank, and was by it indorsed and deposited with the Farmers’ Deposit National Bank; and that on the 26th day of May, before the stoppage of the payment of this check now in dispute, the Farmers’ Deposit National Bank returned that check to the Germania Savings Bank with a demand that they repay to them the amount of the check and notice that the check had not been paid by the Penn Bank. This for the purpose of showing that the Germania Savings Bank has a defence to this check as against the Penn Bank. Objected to, (1) because the testimony does not sustain the purpose of the offer; (2) incompetent and irrelevant. Objection sustained.6 The facts as developed in the testimony were as briefly stated in the syllabus and as more fully and sufficiently appear in the opinion of this court. The court, Stowe, P. J., answered certain of the points presented and charged the jury as follows : The plaintiff’s counsel requests the court to charge: 1. The rules of the clearing house are for the benefit and protection of the bank on which the check is drawn, and not of the party drawing the check; and the rule giving until one o’clock to return checks not good, does not affect or extend the right of the drawer to revoke it or stop payment. Answer: Affirmed.15 2. The right to stop payment by the drawer of the check cannot be exercised after the bank on which the check is drawn has accepted or paid the check, although the time for the return of a check under the clearing house rules has not expired. , Answer: Affirmed.16 5. If the defendant bank had paid the check in evidence, and afterwards presented it to the plaintiff bank and the defendant then represented and guaranteed to the plaintiff that the check had not been paid, and relying upon this the plaintiff paid the defendant the amount it had received credit for, by reason of said check in the clearing house, then the plaintiff may recover. Answered: Affirmed.17 7. The uncontradicted testimony in this case showing that when defendant’s messenger returned the check in suit to plaintiff bank he represented to plaintiff’s teller that payment had been stopped upon said check, but if as a fact the check had then been actually paid, the plaintiff could recover on the count for money had and received for the amount it actually paid to the German National Bank in redemption of said check. Answer: Affirmed.18 Defendant’s counsel respectfully ask the court to charge: 1. Under all the evidence in this case the verdict must be for the defendant. Answer: Refused.19 In a controversy as to whether a check has been paid or not you have to look at what occurred at the time of the transaction. Ordinarily if you have no account in a bank and go there to collect a check you hand it over the counter. If it is all right, and the banker recognizes you as the proper party, he gives you the money and you go avyay with it. That of course ends the transaction as far as you are concerned. If you are doing business in the same bank and don’t want the money, they take the check and do something with it, you don’t know what exactly, but they give you a credit, and the ordinary practice is, as the evidence shows here, to put it on a file. I presume they generally have a triangular cutter as shown in this case. That cuts the check but it don’t pay it, because even in a case of that kind, if the drawer of the check would go in and countermand the payment of it I presume he would have a right to do so, because the check has not been actually paid. [But it indicates upon the face of it the fact, if nothing else appears, that the check has been paid; it is a mutilation of it; it is doing that which, if the party didn’t intend to pay the check at the time he had no right to do. You own the check and he has cut or mutilated it. He may have done it by mistake, and that, of course, is susceptible of correction, but the mere fact that the check is cut in that way, I think under the testimony in this case and under the general practice, indicates that it has been pp/id.]7 I say indicates,' because there are certain reasons which would account for it being done, without showing payment. That being the case, if a check is presented at a bank and it bears upon its face that which indicates it has been paid, the party who redeems it has to do so at his own risk, and if it turns out it has been paid before, and either he or somebody else is to lose the money, the law would cast the loss on him, and the reason is that he is bound to take reasonable and proper care in examining checks before paying them. I draw a check and tear it to pieces. Some one picks it up and pastes it together, takes it to my banker; he looks at it, sees it is defaced, that it bears suspicious marks; it don’t seem to have and does not have the appearance a check ought to have; he can see it has been torn up and pasted together. He may pay that check if he chooses, but if he pays it I am not necessarily responsible if it should turn out that I had torn the check up to destroy it, and he paid it without making proper inquiry. I have no doubt as a mere matter of law, without more, he would be guilty of negligence, and although he had paid the check he could not charge me with it from the fact he had paid it when he had no right to do so. The case would be much stronger if a check were presented with the word “paid” written across it. I might give a man a check, and the next day meet him on the street and pay him the money, take the check back and write the word “ paid ” across the face of it and afterwards lose it, and if it were found and presented to a banker and he would pay it, common sense would indicate that he did it at his own risk, and he could not recover the amount of it off me, because it was through his own carelessness and negligence that it was paid. That bears on this case in this way: [We have in evidence that the cut in this check, presented or taken back to' the Farmers’ Bank after it had gone into the German Bank, bore on it that which impressed it with payment, indicated to bankers that it had been paid, that there w;as something wrong about it. When the check was brought back by the messenger of the German Bank to the Farmers’ Bank and presented for redemption, the teller saw on it that which, if written out in plain letters, would read “ p-a-i-d.” ]8 [He refused to take it back. He would not take it until the German Bank, through its messenger, was put in a position that if there was anything wrongs about the cut, which indicated payment, or in the assertion which the cut made that it was paid, anything wrong in the allegation that it was not paid that the messenger made at the time he brought the check to the Farmers’ Bank, then the defendant Avould stand over it, and make it good. The bank which gets the money upon a check which it has no right to have the money for, has obtained it under a false representation, which of itself, without any guarantee, it seems to me, would make the bank responsible.]12 The plaintiff refused to take this check back until it was marked “ Cut guaranteed,” and we must direct our attention to the signification of these words. I must say that I have been, if not instructed, considerably surprised, with the views the different gentlemen connected with banking operations in this city expressed with reference to the signification of that peculiar term. If it were plain English we would have to instruct you as a matter of law what the words meant, and the expression of opinion of anybody else would amount to nothing. Taken by themselves the words do not mean anything, or at least nobody can tell what they mean. These gentlemen, or some of them, don’t seem to understand what they mean, or if they do, they seem to understand it so well that they cannot explain it. They all have one idea, it seems to me, running through the whole testimony, and that is that putting these words on the check makes the bank that puts them there responsible as though the cut had never been made; that the bank means to say that that cut was made and it don’t mean what it seems to have meant when put there; that it seems to mean payment, and yet don’t mean payment. It seems to me there is very little difference of opinion, and when the idea is stated closely and tersely it is that the bank that wrote those words on the check meant to say that that check was to be as if the cut had not been made, and if it turns out that by reason of the cut a. responsibility arises to the party who takes the check back the-bank cutting it will make it good. The word “ guarantee ” means something. The act of cutting means something, and this talk about the words guaranteeing the fact that somebody made a hole in the check, which is obvious, and if the bank holding it came around they would show how they made it, or who made it, is simply an absurdity. That the words involve some sort of liability is beyond peradventure. What it is, while I have a very clear and distinct idea of my owñ, I must, of course, refer to the jury. It is a question for you to determine under all the evidence. [If you think, in view of the testimony, that the words mean a liability which required the German Bank to make good any loss that might arise to the plaintiff by reason of that check having been paid, when it represented it had not been paid, the plaintiff has made out a case that will justify a recovery. ]14 If it had been paid at that time, actually and in fact, by the German Bank, the plaintiff has a right to recover the full amount of it. Assuming for the present you will find that the words on this check “ Cut guaranteed ” meant a guarantee or representation on the part of the defendant that they would make the check good in case any trouble should arise by reason of having paid it, when it was represented not to have been paid, we come next to the question, was it actually paid? Upon that the chief argument has been made by counsel. You have heard the testimony as to the manner in which business was done by the clearing house, that all these banks, under the rules of the clearing house have until one o’clock to see whether they will accept a check or not. [You have it in evidence that where a banker receives a check, puts it upon the file, makes no objection to it, it is prima facie evidence of payment. Without the jury would say there was a mistake, they are bound to presume that it was received as actual payment, and that, too, whether the banker had a right, as he might have had, to delay the acceptance of it or not. ] 9 If I go into a bank with a check they are not bound to accept it. They may say they don’t know about it, want to inquire about the standing of the bank it is drawn upon, or the standing of the drawer. If they give me the money the act is consummated, and if anybody should then come in and try to stop payment it would be too late, although 1 might have stolen the check. The party from whom I got it would have to look to me, and the bank would be protected. Where money has been paid there can be no equivocation or qualification of the act. You may call it what you please, but it is payment, and no theory and no testimony under the sun would make it anything else. It might be payment under mistake, might be payment of a fraudulent check, but it is payment, and it is a payment which, if the drawer has money in the bank, and the check is genuine, cannot be gone behind so far as the maker of it is concerned and the banker. But sometimes the act is more equivocal, even where you hand the check over the counter. There is no money immediately paid. You go in, lay your check down, and walk out. You don’t even stop to see what the banker does, but he puts the check on the file and gives you a credit in the books. After you have gone out if the drawer should go in and stop, or undertake to stop the payment of the check, and the banker, for certain reasons, should feel disposed to assume it had not been paid, it is too late; he has paid it. [Where a check upon a bank, is presented to it by the holder for deposit to his credit, and the amount is credited to the holder, the legal effect is precisely the same as though the money was first paid out to him, and then by him deposited in the bank. It is the right of the bank to refuse to pay it, or it may reject it conditionally. . But if it accepts the check as valid and pays out the money, or what as some authorities hold, is the same thing, credits it to the holder’s account, it cannot at any time thereafter, even on the same day, return the check on discovering that there were no funds to meet it, and cancel the transaction, for the collection is then treated as accomplished: Daniels, Neg. Inst., 1621.]13 This being the state of the law, as we understand it with reference to this transaction, you come directly to what occurred at the time this check went into the defendant bank. Tt came through the clearing house. According to the rules of the clearing house, not affected by the fact that settlement had to be made between the banks before that, and the check was in fact, as between the. banks, paid, which did not affect the right to return the check if the defendant bank had proper cause and did it at the proper time, the defendant had until one o’clock to return the check. The fact that the check was good when it went in will not hold the defendant bank liable for anything that transpired before one o’clock which made it bad. If there were ten times the amount of money necessary to pay it, or if they considered it good, say up until twelve o’clock, because the money was there and they had heard nothing to the contrary, yet if at half ’past twelve, the time the Penn Bank failed, to bring it down directly to this case, the defendant received notice from the. Germania Bank, they had a right to say they would not pay it and return it to the Farmers’ Deposit Bank and demand restitution, but that right depends on one thing, and that is on the fact of the actual acceptance of this check previously. [The defendant had until one o’clock to accept it, and did it absolutely and unconditionally accept the check before that time ? The mark on the face of it, the entries on the books, would indicate it did.] 10 The testimony of the officers as to their actual intent at the time, so far as they had any intent, and as to the ordinary practice of the bank, is that they did not intend to, and did not in fact pay it; that because this was a check coming from the clearing house they in this case, as in all others, whatever they may have done with the check in the meantime, received it merely conditionally and accepted it conditionally; that it became necessary to make certain entries with reference to it because of the necessity of doing their bookkeeping in banking hours, for if they put off making them until after one o’clock, with the large amount of checks that came from the clearinghouse, they could not possibly get their business crowded into the business hours of the day ; that therefore they commenced treating checks as though they had accepted them, at the same time the acceptance being merely on the condition that nothing would occur before the hour that they could return them, and, keeping them in that shape, they always reserved and intended to reserve the right to return checks in case it turned out they were not good, up to the hour limited. If you find that to be the fact I instruct you your verdict must be for the defendant. Tf you find in reference to the guarantee that the defendant simply guaranteed there was a hole in the check, or that the guarantee meant something else, nobody could tell what, you find for the defendant. But if you think it meant something, and that something was a responsibility on the part of the defendant bank to make good this check that had been paid, when it was represented not to be paid, the question is was it paid — paid to all intents and purposes by the understanding and acts of the defendant. [On the one hand you have the acts, you have standing alone the cut, the check put upon a file, which ordinarily indicates payment, and you have entries on thé books giving credit to the parties entitled to receive it; and without any explanation, those facts, it would seem to me, would indicate beyond peradventure that the defendant bank had fixed itself, and in the language of the law as I read it to you, that constituted such a payment that the defendant could not have gotten out of it, even -if they afterwards discovered they hadn’t the money to pay the check.] 11 But that is only one side of the case; that is the presumption that arises from these facts. You have on the other side the evidence that these gentlemen, and others connected with this Clearing House Association, understand that they have always up to one o’clock to accept absolutely or not; sometimes they put them on separate files — I don’t know whether it transpired in this case but it did before. — or do not put them on any files. Sometimes they do one thing and sometimes another. In this case, whatever they may do elsewhere, they say that their putting this check on the file was nothing more than a conditional acceptance and the entries on the books were merely to save time ; that these acts were not intended to hold them absolutely responsible, and if you so, find, of course your verdict ought to be for the defendant. The case, gentlemen, is one depending entirely upon the facts, and you are to decide it according to your best judgment. The jury rendered a verdict for the plaintiff for $20,0.80, and judgment being entered thereon, the defendant took this writ, assigning for error: 1. The admission of plaintiff’s offer.1 2, 8. The sustaining of plaintiff’s objections.8 3 4-6. The sustaining of plaintiff’s objections.466 7-14. The parts of the charge embraced in [ ] ?to i* 15-18. The answers to the plaintiff’s points.151018 19. The answer to the defendant’s point.19
118 Pa. 314J. Schlitz Brewing Co. v. McCann (1888)
ERROR, TO THE COURT OF COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 157 October Term 1887, Sup. Ct.; court below, No. 192 July Term 1885, C. P. No. 2. On May 26, 1885, John McCann brought an action of assumpsit against the J. Schlitz Brewing Co., to recover damages for the breach of a parol agreement made on March 17, 1884, when the defendant company executed to the plaintiff a lease for saloon purposes of premises under the Academy of Music at No. 816 Liberty street, Pittsburgh; by which agreement the company bound itself to prevent the sale of liquors in an adjoining room, then within its control, during the tenancy. At the trial on March 9, 1887, when the plaintiff’s ease was closed, a motion for a nonsuit was made and refused. No testimony was offered on the part of the defendant. As the contention in this court was solely upon the instructions to the jury upon the ascertainment of damages, the facts sufficiently appear in the charge of the court below and in the opinion of this court. The court, White, J., charged the jury as follows: This is an action based upon an alleged verbal agreement accompanying a written agreement or lease between the plaintiff and defendant, the plaintiff alleging that at the time he took the lease from the defendant company for the room on liberty street, and before the paper was executed, there was an agreement between himself and the defendant company that they would not permit liquors to be sold in the adjoining room over which the defendant company had control or were about to get control. Now if that verbal agreement was a part of the arrangement between the parties to the lease and if, as a part of the consideration for the signing of the lease, this verbal agreement was made, and made before the signing of the lease, it would be binding upon the defendant company. If it had occurred afterward, and was simply a promise on the part of the defendant company, not to permit liquor to be sold there, •and without any consideration to support it, it would not be binding; but if agreed to before the lease was signed, and if the plaintiff was induced to sign this lease because of this verbal, contemporary arrangement, then it would. Upon that point we have the testimony of the plaintiff himself, with that of two or three other witnesses, and if that evidence is believed by you, it indicates that after the agreement was drawn up in the office of the counsel, with these two or three representatives of the defendant company present, the plaintiff called attention to it and the agents then and there promised that they would not permit liquor to be sold in this adjoining room, and that after the arrangement was made, then the lease was signed, and the general agent of the company, according to the testimony of one witness, said to the agent who resided here “we must protect McCann in the business under the lease.” If you believe that testimony it shows a cotemporary verbal agreement in connection with the written agreement, made at the time and before the lease was signed, as a part of the arrangement between the parties, and which, as I have said, would be binding upon the defendant company. Now, was that agreement broken by the defendant company ? It seems that defendant had control of this adjoining room and rented it to Mrs. Reineman; that the plaintiff’s lease began on April 1, 1884; that some other party had control of the adjoining building from that time. At first it was rented to a Mr. Brown from whom Mrs. Reineman bought the lease about the middle of March, 1885. Then it was simply an eating house, as I understand, without the sale of any liquor, although the plaintiff testified that shortly after he commenced he went in there to see Mr. Brown, having heard that he had been selling liquor, and that he promised to give it up, and, so far as the evidence goes, there is nothing to show that he did sell it after that time, and no evidence that Mrs. Reineman sold it until after she obtained her license, May 1, 1885, when she got possession of the adjoining room and then began to sell it in the little bar room which she rented, and also in the room that she rented from defendant company, which room was used more particularly as a dining-room; that she sold liquors there, not only in connection with meals, but apart from them, and the evidence is that the plaintiff called upon the defendant’s agents here and also wrote to the company remonstrating against it, and that no attention was paid to it. If you believe that testimony, and believe that liquors were sold there regularly, it is a violation of this verbal agreement. The next question would be as to the damages that the plaintiff has sustained. The burden of proof is upon the plaintiff to establish his damage. He gave a statement of his receipts during the first sixty-four weeks he was in business there, which would extend from some time in September, 1883, until about January 1, 1885. He stated that his receipts during that time were some fifteen thousand dollars. He then showed his receipts for the next sixty-five weeks, which would be from January 1,1885, to April 1,1886, a year and three months; and during that period, which was one week longer than the other, his sales were some ten thousand dollars* or a difference of some five thousand dollars. That estimate I do not think is entitled to much consideration by the jury, for this reason: There is no specific statement as to what his decrease of business was between January and May, 1885. During that time, according to the testimony, he could not have been injured by sales in this adjoining room, because there were none, but his business was decreased according to the evidence given by himself, and as to the amount of that decrease we have no evidence, nor have we evidence as to the subsequent months compared with the prior months. He said that for some months in 1885 the receipts were less than in 1884, and in some months more; but aggregating the receipts for the whole period of time, some fifteen months, embracing four months before Mrs. Reineman took possession, his losses were so much in business; but it does not follow, by any means, that that decrease in business was the resnlt to that extent of sales in this adjoining room; especially it does not follow as to his losses for the four months prior to the time that Mrs. Reineman began to sell. There must have been some other cause for it. He testifies that, comparing May, 1885, with May, 1884, his losses in sales were about three hundred dollars. How much of that resulted from sales taking place in this room we do not know because there appears to have been a decrease in-his business from some other cause. But you have other evidence; you have evidence that from the time Mrs. Reineman commenced selling in May, 1885, until March, 1886, a period of ten months, she was selling liquor, not only in the bar-room (an extra room that she rented from another party), but that was used in connection with her saloon — the room she rented from the defendant company — and that liquors were sold there, as well as in the barroom ; parties would come in there for liquors, sit down at a table in that room, and be waited upon there just the same as in the bar-room, and the waiter said he supposed that every day or nearly every day during that ten months, liquors were sold there. Now, to what extent they were sold, we have no further evidence than the testimony of various witnesses that they drank liquor there. How much was sold we do not know; how much it interfered with the plaintiff’s business is a matter of uncertainty. It is very natural to infer that if there was a saloon open next door to the plaintiff’s saloon, and one door nearer to the “show” as they call it — the- Academy of Music — that it would draw off some custom from the saloon of the plaintiff; that people would naturally drop into the first door they came to, and as many of the persons who go to those musical entertainments want to drink every time they come to a stop in the performance, they would naturally get their drink quickly and hurry back to the hall, and it may be inferred that the plaintiff lost money in Ms trade and business in consequence of there being a saloon one door nearer than his own to the entrance of the Academy. To what extent that injured his business you must ascertain in the best way you can from the evidence. This is a violation of the agreement made by the defendant company, if you find the agreement as I have indicated, and even if there was no damage shown, the plamtiff would be entitled to nominal damages for that violation; [but there is evidence to go beyond nominal damages].1 We have this testimony on the part of the plaintiff, that about one half of all the money realized from the sale of beer is clear profit. The brewer gets the big profit, and then the saloon keeper gets a clear profit of one half the money he takes in. [It is for the jury to make an estimate as best you can under the evidence, as to what damage the plaintiff sustained through the violation of that arrangement.]a The verdict of the jury was in favor of the plaintiff for $391, and judgment being entered thereon, the defendant took this, writ, assigning as error: 1, 2. The parts of the charge embraced in [ ] 1 8
118 Pa. 322G. B. List v. Commonwealth (1888)
ERROR TO THE COURT OE QUARTER SESSIONS OE ALLEGHENY COUNTY. No. 166 October Term 1887, Sup. Ct.; court below, No. 261 June Term 1887, Q. S. In tlie court below an indictment was found against G. B. List, charging, in the first count, that the defendant “ did then and there unlawfully transact business within this commonwealth, as the agent of an insurance company of another state, to wit, as the agent of the Mutual Fire Insurance Company of Baltimore, in the state of Maryland, without having first procured a certificate of authority so to act from the insurance commissioner of this commonwealth, contrary,” etc.; and, in the second count, that said defendant “ unlawfully did then and there receive premiums and forward applications, and otherwise transact business for an insurance company and association not of this state, to wit, for the Mutual Fire Insurance Co. of the city of Baltimore, in the state of Maryland, without having received authority agreeably to law for that purpose, contrary,” etc. A demurrer, and a motion to quash, for grounds raised on the argument in this court, were overruled, 1 2 and, the defendant pleading not guilty, a statement agreed upon by counsel was read to the jury as containing the admitted facts of the case. This statement was as follows: . That G. B. List, the defendant, is and was at the time óf the alleged offence a citizen and resident of Baltimore, Maryland, and was engaged in representing the Mutual Fire Insurance Company of Baltimore, Md., in the capacity of inspector, his compensation and expenses being paid by said company. Said company was a foreign fire insurance company, incorporated in and by the state of Maryland, and not licensed, and having no authorily from the insurance commissioner to do business in Pennsylvania, and had not complied with the laws of Pennsylvania i’elating to foreign insurance companies. On February 12, 1887, said defendant visited the city of Pittsburgh and delivered to business men in said city his card, announcing himself as inspector, together with said company’s form of premium note and its financial statement to December 31,1886, and also a list of its officers, directors and committee, which card and statement list are hereto attached and made a part of this statement of facts. That afterward the defendant visited G. F. Wells, in the city of Pittsburgh, and inquired when his policies of insurance would expire in companies in which said Wells was already insured, and requested permission to inspect the premises of said Wells, and this for the purpose of enabling said Mutual Fire Insurance Company of Baltimore, Maryland, to place a policy or policies of insurance thereon. That prior to the visit of defendant to the city of Pittsburgh, Messrs. Reed and Edwards received a letter from the secretary of said company, dated February 8,1887, which letter is hereto attached and made a part of this statement of facts. That defendant was sent to the city of Pittsburgh by the said company for the purpose of inspecting buildings, ascertaining their exposures, and making diagrams of the same with respect to their desirability as insurance risks for acceptance by said 'Mutual Fire Insurance Company of Baltimore, Maryland, and that he went to the said Wells and others in the city of Pittsburgh for said purpose. It is further admitted that on the day and year, last aforesaid defendant inspected the Franklin Glue Works, a building in the county of Allegheny in the state of Pennsylvania, for the purpose aforesaid; .that he .promptly thereafter transmitted a report of such inspection to said company, which company immediately thereafter, for .a premium paid to it, placed upon the said glue works said company’s policy of insurance against loss by fire. That in pursuance of said employment as inspector, on the day and year last aforesaid, defendant was engaged in the city of Pittsburgh in inspecting risks for-the purpose aforesaid, and transmitted reports of his inspection to said company in Baltimore. It is further admitted that his actions were confined entirely to the said business of inspection, and that he did not negotiate or solicit within this • state any contract of insurance, or pretend to effect the same, or receive or transmit any offer or offers of insurance, or receive or deliver a policy, or in any manner aid in the business of placing insurance, except as hereinbefore set forth in this statement of facts. The court, Collier, J., in the charge to the jury, answered the defendant’s points as follows : 1. That if they find from all the evidence, in this case that the only business transacted by defendant, G. B. List, for an insurance company of another state, consisted in making an examination and inspection of buildings, with reference to then desirability as risks, and reporting the facts, there can be no conviction under the law, and it is their duty to acquit the defendant. Answer: Refused.3 2. That if the jury find from all the evidence in the case that the defendant did not quote rates, or solicit insurance, or receive premiums, or forward the same, or perform any. of the-duties of an insurance agent, but that, defendant’s action was confined wholly to inspecting and: examining;the physical, and material condition of buildings, such action was not the “ aiding in the placing of insurance ” prohibited by the law,, and. there can be no conviction. Answer: Refused;4 8. That there can be no conviction in this case, for the rear son that the act of assembly under which the indictment- is framed, is obnoxious to the constitution of the United States, being an attempt on the part of the state to regulate commerce among the several, states, which is in conflict.with art. I, § 8, declaring that “ Congress shall have- power-to regulate commerce among the several states,” also with art. IY, § 2, declaring that “ citizens of each state shall be entitled- to all the privileges and immunities of the citizens in the several states,” and also with the XIVth amendment, which declares that “ no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Answer: Refused.5 The jury returned a verdict of guilty, together with the statement of facts upon which it was based. A motion for a new trial and in arrest of judgment was overruled and judgment passed that the defendant pay a fine of $500, costs of prosecution, etc. An allowance having been made by Mr. Justice Clark, the defendant then took this writ assigning for error: 1. The overruling of the defendant’s demurrer;1 2. The refusing of the motion to quash.8 3-5. The answers to the defendant’s points.3 4 5
118 Pa. 329Northwestern M. L. Ins. Co. v. Roth (1888)
ERROR- TO THE COURT- OP COMMON PLEAS NO. 2 OF 'ALLEGHENY COUNTY. No. 192 October Term 1887, Sup. Ct.court below; No. 938 November Term 1874, C. P. No. 2. In the court below suit was brought on. October 23, 1874, by Magdalena Roth, administratrix of John Roth, depeased, against the Northwestern Mutual Life Insurance Co., of Milwaukee, to recover upon a policy upon the life of John Roth, for the sum of three thousand dollars. At a former trial of the same cause on September 26,. 1877, a. verdict was rendered for the plaintiff for $4,034.47the judgment thereon, however, was reversed by this court,, the case being reported in 87 Pa. 409., At the second trial on April 11;. 1887, the plaintiff offered the policy in evidence, reserving the right to explain and contradict the effect of certain indorsements thereon and to show that they were not binding upon the plaintiff. Written upon the back of the policy -when offered in evidence was an assignment dated February 24, 1871, in the usual form, by John Roth to John Spieler, of all his right,, title, interest and claim to its proceeds, with a provision that in case of the death of John Spieler, the assignee, before the policy became payable, then the proceeds should be paid over to the heirs or assigns of John Spieler. There was also indorsed upon the policy when offered in evidence a receipt which read: Received September 5, 1871, of the Northwestern Mutual Life Insurance Company, three thousand dollars, in full of all claims on the within policy. [Signed] Attest John Spieler. Adam Becker. The plaintiff offered in evidence the testimony of John Spieler, taken on the former trial, for the purpose of showing that John Spieler did not himself know of the assignment to him until after the death of John Roth; that the assignment was without consideration; that there, was no delivery made to him of the poliey or the assignment; that he had no interest whatever in the policy, and had never received any money from Adam Becker or any one else upon it. The defendant’s counsel objected to the testimony, on the ground that the whole, or the greater part of it, was irrelevant. By the court: Objection overruled.1* Under this exception, the witness then testified to the effect substantially; that the signature to the assignment was that of John Roth, and he had seen the policy with the assignment on it in the hands of Adam Becker before Roth’s death; that a few days after Roth’s death, Becker had come to witness and had him sign the receipt; that he had received from Becker in sums paid at different times between 1800 and $400; he did not know whether his name was in the assignment, when he saw it before Roth’s death, or not. Charles Kirsch, a witness for plaintiff, having testified that plaintiff and himself had called on Adam Becker, defendant company’s local agent, in June or July, 1871, to inquire about the insurance on her husband’s life: Q. Was anything said about anybody else having a claim on the policy? Objected to. Objection overruled.13 A. Yes, sir. Q. What was said by Mr. Becker? A. Mr. Becker said that Mr. Roth made his will to the St. Franciscus Hospital, out in Lawrenceville, for a thousand dollars. The witness testified, further, that he had got George Segrist to write a letter to the company about July29th, “to let us know if the money for Mr. John Roth is paid over to Becker or not; if it aint paid, hold on to it till further notice; answer to Mr. Segrist;” that Segrist had since died. There was no evidence that the letter had been received or replied to by the company. George H. Gerber, a witness for plaintiff sworn: Plaintiff’s counsel proposed to prove that demand was made upon Adam Becker, the agent of defendant, in October, 1871, the day that letters of administration were granted, and that Becker told the plaintiff he had the money in his hands at that time, but was going to retain it and not pay it to any one. Objected to, as incompetent to affect the company defendant. Objection overruled.14 The witness’s testimony sustained the offer. The plaintiff’s counsel offered in evidence a paper, dated April 5,1887, signed by the widow and all the heirs at law of John Spieler, declaring that said Spieler had died in 1876, and, inter alia, that notwithstanding the indorsed assignment upon the policy they had no claim or interest in said policy. Objected to, as incompetent and irrelevant. Objection overruled and evidence admitted.15 The plaintiff, a witness in her own behalf: Q. Tell us what occurred on your visit then the last time you met Mr. Becker there. Objected to. Objection overruled.16 A. He said he had drawn for himself $2,500, and $500 for Spieler, and there was no court in the world could compel him to pay this money. Mr. W. D. Moore, a witness for the defendant, having-stated that as counsel for the defendant company, he had been furnished by the company’s general agent with an order by John Spieler, the assignee of the policy, in favor of Adam Becker, which order he had lost and could not find after diligent search. Defendant’s counsel proposed to ask the witness to state the purport of the order. Objected to by plaintiff’s counsel until there was proper proof of the execution of the order by John Spieler. Objection sustained.17 There was evidence on the part of the defendant to show that an assignment in the form of that, indorsed upon- the policy had1 been transmitted to the company; that the ..necessary-proofs of the death of John Roth were furnished by- John Spieler; on June 11, 1871,. accompanied' by a statement of' Adam Becker, the local agent.; that Becker was. only, an agent, of the defendant, to solicit insurance, and-had been appointed by George Dart, the general agent, for this state; that on receipt, of the proofs of death,., the company sent its draft to Dart to pay the policy; that this money was paid, to Becker on September 5,.1871, the receipt therefor- being- as indorsed on the policy, and- that the policy, with said! indorsements, was then surrendered to the'company and. produced on the trial on notice from the plaintiff. The court, Magee,. J., charged the jury- as follows: Before proceeding to my general charge I will give you the instructions of the court upon the points presented' by. the counsel in the case...... The points presented, on the part of the plaintiff are: 1. That the evidence shows that Adam Becker had charge of the defendant’s' business in this locality, taking and receiving applications for policies, receiving, countersigning and delivering the policies, receiving premiums, taking proofs of loss and making payment of the same; and such being the-undisputed facts, Becker’s knowledge, if he had it, that Spieler had and. claimed no interest in the policy, and that the same was properly payable to Roth’s estate, is knowledge of the company defendant, and makes it liable to the Roth estate, unless the execution of the assignment and receipt upon the policy enabled Becker to fraudulently obtain and keep the money from the company, his retention of which is the origin of this suit, and such was not the effect of the assignment and receipt, as it is clearly shown by Dart’s testimony, that part of Becker’s duty as such agent was to receive the money and “ pay it to the party entitled to receive it ” in case of loss. Answer: I cannot assent to this point.in all its propositions as stated, and decline therefore to instruct as therein, requested. 2. That the uncontradicted evidence shows that Becker knew all of the facts respecting the policy and its assignment, and the claims of Roth’s estate, from the time of the death of Roth; and if, under the evidence, the jury finds that Roth’s estate was entitled to be paid the money due upon the policy, and that neither Becker nor the defendant ever paid either Spieler or said estate, then the defendant is liable in this action. Answer: Affirmed.1 8. That if the jury find from the testimony that the company or George Dart, its state agent, received notice given on behalf of plaintiff before the payment of the money to Becker that the plaintiff questioned the validity of any claim by Spieler to the policy, and disregarded it, then the defendant is to be held as paying the money to Becker , at its own risk, and cannot set up that it was misled by .the assignment on the policy. Answer: Affirmed, with this qualification: That the notice given was of such a nature as reasonably to put the company on inquiry or to require the company to withhold .payment of the policy. 4. If the jury find that Roth did sign the assignment on the policy, but never delivered the same, nor received any consideration therefor, and that Spieler acknowledged that he never had .possession of, or any actual interest in, the policy, then the loss was payable to the Roth estate, and is so still. Answer: Affirmed.8 5. That if the jury find that Becker could have received and retained the money as well if the assignment had not been made and the claim of loss had been made out by the plaintiff, then if the -assignment was never consummated by delivery or by the receipt of any consideration, and Becker never paid the money on the policy, then the assignment is not to be regarded, so far as Roth and his ■ estate is concerned, as wrongfully aiding Becker to commit the wrong of procuring and appropriating the loss; and if such is the case, the company is fully charged with all knowledge then had by Becker of the loss being payable to Roth’s estate. Answer: Affirmed.3 6. The defendant is, under the evidence, chargeable with all the notice and knowledge of the plaintiff’s claim which was received by Becker, and their payment to Becker must be considered as made under such notice and knowledge. Answer: Affirmed..4 Defendant’s,counsel present the following points: 1. That under the pleadings and evidence the verdict should be for the defendant. Answer: Refused.5 2. That if the jury should find that Adam Becker was a party to the alleged fraud, Iris complicity in and knowledge thereof would not affect the company defendant. Answer: Refused.6 3. That if the jury believe from the evidence that the assignment on the back of the policy was signed by John Roth in blank, and the policy in that condition was left in the hands of Adam Becker, Roth thereby constituted Becker Iris agent to fill up the assignment; and if Becker did subsequently fill in the name of John Spieler as assignee, and upon this assignment, thus regular on its face, the company acted, believing it to be a valid assignment, both John Roth and the plaintiff are estopped to deny the validity of the assignment. Answer: Affirmed. 4. If the jury find from the evidence that John Spieler left in the hands of Adam Becker the policy having the assignment filled up and the receipt filled up and signed by Spieler, for the purpose of enabling Becker to receive the money as his agent, he, Spieler, constituted Becker his agent, to receive the insurance money from the company, and payment to Becker in connection with the surrender by him of the receipted policy discharged the company. Answer: Affirmed, with this caution: that you must be well assured from the evidence that Becker received the money from the company as Spieler’s agent or upon his order, and not from the company as its agent to adjust a liability of the company.7 5. That if the jury should believe from the evidence that George Segrist wrote and mailed the letter testified to by Charles Kirsch, and that the same was received by the company, said letter was not enough to affect the defendant company with the notice of the alleged fraud, nor was it sufficient to put the company upon inquiry. Answer: Refused: I leave to you to find from the evidence whether or not the notice was of snch a nature as reasonably to put the company on inquiry, or require it to withhold payment of the money.8 6. That there is no sufficient evidence in this case to impeach the assignment by John Roth of the policy in suit. Answer: Affirmed; that is if I understand the import of the word impeach. There is no sufficient evidence for the court to say as matter of law that the assignment is unworthy of credit, and to be excluded from the consideration of the jury.9 7. That under the policy, assignment and death proofs, the defendant company was justified in settling the loss with John Spieler, the assignee, or with his representative, Adam Becker, and if the jury find the insurance money was paid to Adam Becker as his agent, the plaintiff cannot recover. Answer: Affirmed, with the qualification as stated in answer to defendant’s fourth point.10 8. That, as it appears from the plaintiff’s own evidence that John Roth left the policy in suit, with his signature to the assignment indorsed thereon, in the hands of Adam Becker, and thereby gave him the power to perpetrate, the alleged fraud, his personal representative, the plaintiff, is estopped from setting up the alleged fraud against the company in this action. Answer: Refused. I cannot say that the deposit of the policy with its assignment, with the agent of the company, before payment made, will relieve the company from liability to pay the creditor when the money intended for the creditor has been appropriated by the agent of the company to his own use and not applied to the company indebtedness. The fact, however, that the company has acted on such state of facts is matter to be taken into consideration with other circumstances and facts, as indicative of the true character of the transaction and the relation of the parties to one another.11 9. If the jury find from the evidence that the defendant company, through their general agent, George Dart, on September 5, 1871, in good faith, relying on the assignment of the policy in suit made by John Roth, the assured, to John Spieler, on February 24, 1871, and on the proofs of loss furnished the company by said Spieler, and on his surrender of said policy, -with his receipt of satisfaction in full indorsed thereon and signed by him, paid the amount due on said policy to said John Spieler, through Adam Becker, who then and there produced and surrendered to said general agent, Dart, the said policy so assigned and satisfied, then the verdict of the jury should be for the defendant. Nor, if the jury find as above stated, will the alleged statements made by Becker or Spieler, after such payment, avail to deprive the defendants of their right in such case to have the verdict of the jury in their favor. Answer: Affirmed. [The court, after referring to the nature of the case, the conditions of the policy, and the assignment and receipt indorsed thereon, proceeded:] Upon this state of facts, if nothing else appeared, your verdict, necessarily, would be for the defendant company. The plaintiff does not controvert the genuineness of the signature of John Roth to the assignment, nor that-of . John Spieler to the receipt. The grounds upon which plaintiff relies to recover in this action is that she is the administratrix of John Roth, deceased, by letters of administration issued to her on October 4,1871, and as such is entitled to demand, and receive any personal property belonging to the estate of John Roth, deceased; that the amount due upon the policy in suit has never been paid to either the administratrix or to John Spieler, to whom the policy had been assigned; that the money to pay the policy was committed to the hands of Adam Becker, the agent here of the company, and was by him appropriated to his own use, and that the company is not relieved of liability by such act; that the assignment, though genuine, was not intended to make the money the property of Spieler, but for other purposes than that of. ownership, and that, although assigned, it was, notwithstanding, the money of John Roth; that the receipt for the three thousand dollars is a genuine paper, but that it is simply prima facie evidence of payment and the subject of proof that the money was not paid, although the receipt was delivered. It is further contended by the plaintiff that before the payment made, as alleged, to Spieler, the defendants had notice not to pay the money to him, as it was claimed by tbe administratrix of John Roth, deceased. I have attempted to state the character of the plaintiff’s claim and the ground upon which she relies to secure a verdict. I do not mean to intimate any conclusion of fact therefrom. You will, when you retire to the jury room, be called upon to find under the obligations of your oath the facts for yourselves. The. defendant company has set up the plea of payment, and it is not denied that it has paid out, to some person, on account of this policy the sum of §2,847.36, being the total sum due thereon. The company claims that the money was paid to Spieler, the assignee of the policy, and before any knowledge of the claim of plaintiff was brought to its notice; and further claims that if any money was retained by Becker, the agent of the company at this point, it was so retained by the authority of the assignee, and not from any fault or act of the company or misappropriation by its agent...... The counsel have presented points to the court for your instruction, which, perhaps, will cover the law of the case. I may, however, in addition to the points submitted, say that I take it to be the law that there can be no recovery in this action if you find as a faet that the money due upon this policy was paid to John Spieler, the assignee, before notice of a claim thereto by the administratrix of John Roth, or, if paid after notice, the plaintiff has failed in this action to substantiate her right to the money in dispute. [I take it, also, to be the law that if the company placed in the hands of Adam Becker, the local agent for this county, the money to settle this policy and Becker appropriated the fund to his own use, without authority to so appropriate from Spieler, the company will not be discharged from liability.]18 If an agent receives money from his principal to pay to another, and without authority of the party entitled to receive the money, retains it for his own use, the loss would fall upon the principal and not upon the párty for whom the money was intended. The only way for the principal in such case to avoid liability would be to show clearly and satisfactorily that the agent retained the money for his own use, by and with the authority and consent of the party entitled to secure the money, and that authority is to be determined by the facts and circumstances surrounding each case. Reference has been made in the trial of this case to the question of fraud as existing in the transaction. The rule of law is that fraud must be proven and cannot be presumed. You will, therefore, not presume in this case that fraud exists in the absence of proof to that effect. If fraud is once established it affects the rights of all involved in the fraud; and I may say, in addition that, as I understand it, the transactions of the parties have not been assailed on the ground of fraud. The controversy has apparently resolved itself more into the question of the rights of the parties to the fund assigned, rather than an attack upon the validity of the assignment, except in so far as the evidence may show that the assignment is void from want of delivery and like allegations, ánd the further contention that the company has never made a lawful payment in satisfaction of the policy to either John Spieler or the estate of John Roth. In fact, it seems to me that the' assignment cannot be safely attacked by the plaintiff as a fraudulent act, because in that event John Roth would be connected with Becker in the perpetration of a fraud that would defeat the right of the plaintiff to a policy committed in fraud to Becker for purposes'of collection of money'improperly from the defendant company...... •The amount due upon the policy, if not paid, is twenty-eight hundred and forty-seven dollars and thirty-six cents, with interest from September 5, 1871, less any payments on account; and I only recall, and when I say anything about the testimony I am not giving it to you as contrary to your own recollection of it; you must take your own recollection for everything of fact; I say I only recall two items as mentioned in the evidence, three or four hundred dollars, admitted by Spieler in his own testimony, and a receipt from him for twelve hundred dollars. Take the case, gentlemen, and do what in your judgment' is right. The verdict of the jury was $5,512.40. On the hearing of a motion for a new trial it was ordered, that unless the defendant company tendered the plaintiff within twenty days the sum of #2,605.26, a new trial would be refused; that if such tender were made and refused by the plaintiff, a new trial would be granted. The defendant refused these terms and, judgment being entered, took this writ assigning for error: 1-4. The answers to the plaintiff’s points.1 to 4 5-10. The answers to the defendant’s points.51010 12-16. The admission of the plaintiff’s offers.*°16 17. The refusal of the defendant’s offer.17 18. The part of the charge embraced in [ ]18
118 Pa. 344Commonwealth v. Moorehead (1888)
No. 220 October Term 1887, Sup. Ct.; court below, No. 581 September Term 1886, Q. S. At the trial on March 7, 1887, before Ewing, P. J., Emma Moorehead pleaded not guilty to an indictment charging the defendant with the erection and maintenance of a building upon South Canal street in the borough of Tarentum, to the common nuisance, etc. At the close of the evidence, the defendant’s counsel requested the court to charge the jury: 1.
118 Pa. 355Pittsb. Melting Co. v. Reese (1888)
ERROR, TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 235 October Term 1887, Sup. Ct.; court below, No. 320 September Term 1886, C. P. No. 1. On July 21, 1886, Thomas M. Reese issued a summons in case against the Pittsburgh Melting Co., Limited, an association organized under the limited partnership act of June 2, 1874, P. L. 271. The plea was non-assumpsit. At the trial on April 9, 1887, the facts appeared: The defendant company was engaged in the business of rendering animal fats, and on July 12,1886, had on hand six hundred tierces of oleomargarine oil. At a meeting of the board of managers on the morning of that day, Mr. Emil Winter being chairman of said board, the price was fixed at 6| cents. Immediately after the meeting, the chairman verbally contracted to sell the entire lot on hand to Thomas H. Reese at that price. The purchaser at once prepared to receive it and sent his check for $13,260 in full payment, but, on account of some misunderstanding among the members of the board as to the quantity to be sold, delivery was refused. A proper tender of purchase money was made before suit brought. Evidence was introduced that there was no local market for the oil at Pittsburgh, and that the market price at New York and Chicago was 8-| cents. The court, Stowe, P. J., charged the jury as follows: The first question for you to determine is whether or not there was an actual sale and purchase of these 600 tierces of oil? If you make up your mind that there was, that Mr. Reese on the one side, and Mr. Winter acting as chairman of the defendant company on the other, got together and made a contract of bargain and sale, the next question is one of law, whether Winter had the right to make that contract so as to bind the defendant, and if under the instructions of the court you find he had, then there is left the question of damages only. You have heard the testimony of the plaintiff and of Mr. Winter as to whether there was a contract.. They both agree that after some preliminary negotiation they did actually make a contract for the sale and for the purchase of this oil. Reese swears he bought it, Winter • swears he sold it; and if you believe that, so far as the actual contract was concerned, it is perfectly conclusive and beyond any question, assuming now that Winter had the authority to sell. Upon the authority to sell you have had very considerable testimony, very much, none of which, in fact, under the law in the case as I hold it. to be, amounts to anything. I hold as matter of law, that these gentlemen who compose the Pittsburgh Melting Company were partners, and that under the act under which they are incorporated, each one of the managers, and at all events the chairman, the head of the board, had a right to sell anything they had to sell to anybody that wanted to buy, without special authority from the board; and that the chairman had the right to buy anything, or to contract for anything that the whole board could contract for, subject to the limitation of the act of assembly, that is, where the purchase amounted over f500, there had to be a paper signed by two members of the partnership. This is a new question, perhaps, but so far as I am concerned I have no doubt about it; at all events it is my duty to instruct you as though I had no doubt..... That brings us to this case. As we instruct you, Mr. Winter had a right to sell this oil. He was chairman of the concern, and — to put it clearly and without question, apart from the evidence — we instruct you as matter of law, the very position he had as a member of this firm and as the executive head of it gave him a right to sell any oil they had, whether the whole stock in hand or not, even if there was an agreement between him and the other members of the firm that he should not sell for the price he did sell. If he did sell it to Reese without Reese having any knowledge or information, or reason to believe that any such restriction had been put on his powers, and Reese bought it in good faith, the contract is binding not only upon Winter, but on the defendant, and a breach of that contract either by him or the defendant makes the company liable for any damages sustained by reason of the breach. This brings us to the points presented by the counsel for the defendant, which raise very nicely and very squarely this question, which, I presume, the Supreme Court will be eventually called upon to dispose of. 1. Under the law and evidence in this case the verdict should be for the defendant. Answer: This is refused. It is based on the idea that there is not sufficient evidence to justify you in finding for the plaintiff. The matter is for you; and if you think the sale was made as claimed by the plaintiff, and made without any fraud or collusion on his part, or any knowledge on his part, that Winter — if there was any restriction put upon him — had a restriction imposed upon him as to selling, we say it was a good contract and binding on the defendant, and the plaintiff has a good right to recover. The amount of damage is, of course, for' you.1 2. If the damages in this case exceed five hundred dollars, then the plaintiff cannot recover, because the contract of sale was not reduced to writing and signed by at least two managers. Answer: This point is refused. We are unable to agree with the counsel for' the defendant on this, and hold that the law does not apply in case of contract of sale. It applies, as we understand it, to the purchases, something that involves the company in some liability. I do not understand the act as undertaking to restrict these partnerships in matters of sale.2 3. The sale made by Mr. Winter was not binding upon the association unless he had express authority from the board or other managers to make it, or unless he had implied authority from the fact that he had been making similar sales theretofore without objection. There is no evidence that he had such express authority, and the evidence as to implied authority is his own evidence, not supported by any other witness, but contradicted by all the other managers. Answer: The latter part of that may be true or not. I do not exactly understand it so, but the point as a whole is refused ; and, so as to give the defendant a perfectly clear and unmistakable ruling, I instruct you that under the act of assembly and the articles of association, Winter, being chairman of the board of managers, had authority to do business for the defendant, to sell its products in the market without any specific authority to that effect, and that in the absence of fraud or collusion between him and the purchaser, or knowledge on the part of the latter of want of authority to sell, a bona fide purchase by him from Winter was binding upon the company defendant.3 If you believe, in view of all the testimony in this case, that Reese and Winter got together, that Reese purchased this oil in good faith, not knowing there was any restriction on Winter selling it, if there was any, and the defendants have refused to comply with the contract, as there is no doubt they did, the plaintiff is entitled to damages, and the rule of the law is that he shall be made whole, that is to say, he is to recover from the defendants whatever the oil would have been worth, what he could have disposed of the oil for in Pittsburgh the day of the breach — the final breach — which was, I believe, on the 19th or 20th of July, 1886. [You take the markets in New York and Chicago if there was no local market here, and add the price of getting the oil to those points where there was a market. If you have the market price thoroughly established there, and by immediately shipping it the plaintiff could have got it to a market and there sold it, the difference between that price and the price the plaintiff agreed to pay for it with the freight added, is the damage he has sustained.]4 I believe that is all I can say to you that will throw any light on the matter, so far as I have any right to suggest anything. The verdict of the jury was in favor of the plaintiff for $3,447, and judgment being entered the defendant association took this writ assigning for error: 1-2. The answers to the defendant’s points.1 to 02 3. The answer to defendant’s point.3 4. The part of the charge embraced in [ ] 4
118 Pa. 362Chartiers V. Gas Co. v. Lynch (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 246 October Term 1886, Sup. Ct.; court below, No. 608 September Term 1886, C. P. In the court below an action in case for negligence was instituted by Ann Lynch against the Chartiers Valley Gas Company and the Philadelphia company, to recover damages for injuries received from an explosion of natural gas. At the trial on May 11, 1887, the facts appeared: The Chartiers Valley Gas Company, a corporation organized under the act of May 29, 1885, P. L. 29, on May 4, 1886, entered into a written contract with Martin Joyce to lay down between certain points a twenty inch cast-iron pipe upon certain streets in Pittsburgh; inter alia, upon Penn Street, passing by the Hotel Anderson. The contract bound the said Joyce to lay the pipe, etc., refill the ditch, pave the same, and clean up streets, “all in accordance with the specifications which accompany and are a part of this agreement,” and to give bond in $10,000, with approved sureties, for the faithful performance of his contract. A provision of the specifications was as follows : “ All the work is to conform to the requirements of the city ordinance, regulating the laying of natural gas pipes, and to be done in a manner satisfactory to the city engineer and to the superintendent of the first party. The work shall not be considered finished, or any money due thereon, until fully approved and certified to by said superintendent.” There were provisions in the natural gas ordinance referred to, that no more than two sqriares of a street should be open at once ; that the city should in no event be liable for injury or damage to property by reason of assuming control and direction of the work; nor for any loss or damage sustained by any person by reason of the laying or using of such pipes, but the same should be paid by the gas company who should indemnify the city from all loss and costs therefrom; that the work should be discontinued at the direction of the city engineer if carelessly or unskillfully done; and that the gas company should give bond to the city in $100,000 conditioned for the faithful performance and compliance with all the terms, provisions and conditions of the ordinance. The line of the Chartiers V. Gas Co. was laid on Penn street, at Hotel Anderson, next to the curb, the location selected by the city engineer. Five feet distant therefrom was the line of the Philadelphia Co. transporting natural gas, and beside the latter were the lines of the Consolidated Gas Company and of the Pittsburgh Gas Company, supplying artificial gas. To get beneath a sewer on Sixth street, the contractor for the defendant company was compelled to go to a depth of eight feet at the point opposite said hotel. On the evening of July 14, 1886, as Ann Lynch was upon the pavement on Penn street, in front of Hotel Anderson, a series of explosions of gas occurred, the flames coming up through the vault hole several feet high and from the basement windows of the hotel and adjoining buildings. The plaintiff was severely injured. Prior to the explosion, depressions appeared in the surface of the street beneath Which the line had been laid. The gas pipes already down in the street had been exposed in digging the trench. No gas was admitted into the line of the defendant company until July 29th. There was evidence that the company’s superintendent and their engineer visited the line from time to time, the latter to see the tests applied. The part of the fine where the accident occurred had been completed about two days before the explosion; the contractor was still at work a short distance further down the street, but there was no direct testimony whether or not the line at the place of the injury had been accepted by the company. Investigation after the explosion disclosed that, from the careless refilling and tamping of the trench, the neighboring gas pipes had afterwards settled down, resulting in the breaking of an elbow connecting a service pipe with, the Philadelphia Co.’s main, and other injuries of a like nature, causing an escape of gas. It was in evidence that artificial gas from the other lines was mixed with the natural gas in the explosion. Another case of like character was tried with this one. The court, Stowe, P. J., charged the jury orally as follows : As has been admitted all around, there is no doubt but that each of these plaintiffs was injured by an explosion that took place at the time and place they say it did. I presume the jury will have no difficulty in coming to the conclusion it was an explosion of gas, either natural or artificial, or perhaps both combined; and that it was the result of gas escaping from broken pipes at some place in the neighborhood of where the explosion occurred. If you should so think, you inquire whose fault it was that this gas exploded; and, while I think of it, I indorse fully the position, that even if there was a mixture of artificial gas with natural gas, or if the gas that exploded was all artificial gas, you could not give a verdict against the artificial gas companies even, if in fault, which it does not appear to have been. If it was the breaking of the pipe which brought about the injury, and that breaking was occasioned by the negligence or misconduct of the Chartiers Valley Gas Company in their excavation of, or in the manner in which they filled up the trench in which they laid their pipe, that company would be responsible in damages for the whole injury done; because the accident and the damage was the result of its misconduct; and it would not be relieved even if it turned out that in this particular case the damage was all from the escape of artificial gas — provided the breaking of the artificial gas pipes was the result of the negligence or misconduct of the Chartiers Valley Gas Company. If there was any gas came from the Philadelphia Company’s line, that company would not be liable, because it did nothing — if you assume, as appears to be admitted all around, and as the evidence seems to me clearly to show, that its lines were laid properly in the first place — which was negligent, or which would render them responsible for the breaking of a line that occurred in the manner in which this must have ■occurred. As I said to the counsel representing that company, I can see nothing that would justify the jury in finding a verdict against that company. The question, however, comes up, and it is for you to look at, with reference to what you have before you, as to the probabilities of the gas emanating from the pipes of the Philadelphia Company. You have no gas at that time in the pipes of the Chartiers Valley Gas Company; you have a broken joint or “ L ” as it is called, from which gas was found escaping, in the neighborhood of where this explosion took place, and you have gas emanating from probably the other lines. Taking all these matters into consideration, if you believe that there was natural gas involved in the explosion, then, of course, that gas must have come from the line of the Philadelphia Company, and that company, therefore, would probably be held liable if the breaking of its lines Resulted from any fault, or misconduct, or negligence on its part. Putting it in that light, under the testimony and assuming that the jury will probably or may probably conclude that some of the gas at least that caused this trouble emanated from the Philadelphia Company line, then you are to go further. That, of itself, will not render the company liable, if you believe the lines were made of proper material, properly located and in proper working order at the time of this injury, as the evidence indicates very clearly to my mind they were. The evidence shows that they were put down in the right way, and shows in addition to that that they had been in working order for some very considerable length of time, and that there was no trouble, and when the investigation was made there was nothing wrong with the line except at this L which was broken, and the breaking of which most probably — to my mind clearly— resulted from the sinking of the ground in and about the trench that had been made there by the Chartiers Valley Company. It is alleged by counsel for the plaintiffs that that company is liable, because while this work was going on — the laying of the lines — the superintendent passed along there from time to time and saw the manner in which the work was done. If the evidence satisfies you that he saw the work being done there in such a way as to injure his lines, he would, as the representative of that company, have been in default if he did not take some means to protect them. But you must recollect that at this time the contractor was under no control of the superintendent. He had the legal right to go there and dig out these trenches and fill them up in any reasonable way, subject to the control of the city official whose business it was to see that it was done in a reasonably proper way for the protection of the streets as well as the protection of the public ; and before the company could be held liable for his default, it should be apparent, it seems to me, from the testimony, that he neglected to do something which it was his right to do by interfering, not simply. with remonstrance. The breaking of those pipes, it would seem to my mind, arose from the fact that the earth was not sufficiently tamped; that the dirt was thrown in carelessly and loosely; and the failure of the Char-tiers company to tamp or properly solidify the dirt as they put it in, was the cause, when the rains came, of its sinking away, and for that reason the weight of the ground above crushed the lines out of place. The Philadelphia Company’s service line was pressed out of place. Being of a material that would yield, wrought iron, it was not broken, but this L broke, and while it is not for me to decide the question for the jury, it does seem to me, as I suggested to counsel, if there is any evidence that would justify a finding against the Philadelphia Company, it is very slight. At the same time I say again, as I said before, these matters must be determined by the jury, not by the court. If we think after verdict there is not sufficient evidence the law gives us a right to interfere. The law puts the matter in the hands of the jury in the first place, and so in this case, whatever my opinion may be, it is no more than the opinion of any other gentleman in the case, and it is not entitled to have any weight with you. Then you come to the main question, as it seems to me, the question of the liability of the Chartiers company. It has been shown in evidence that this work was done by Martin Joyce under a contract between him and that company, and it, has been very earnestly urged here that under the rule of law in Pennsylvania if he was in default, if this accident occurred by reason of any negligence of his, the company is not liable, and to a certain extent that is true. [If then it should turn out, as alleged by the counsel for the Chartiers company (although I do not so understand the fact) that at the time of. this explosion Martin Joyce had, by virtue of his contract, still the exclusive control of the part of the line where the accident occurred, the company cannot be held liable ; but if he had handed it over, or if it had been received and recognized as under the control of the company — -that part of the line at that time — then they may be held liable too for his misconduct, provided the facts satisfy you that at the time it was accepted by the company or the control taken, the company knew, or ought to have known — could have known by a proper examination of the line, that there was likely to be some sinking of the earth that might probably disturb the other lines and occasion an explosion. They are bound to take into consideration the fact of these probabilities.] 6 We all know the dangerous character of natural gas, its explosive quality and the absolute necessity there is for so locating the lines and so making them that they will not be obstructed and broken. The gas, as it appeared in this case, permeated the earth to a very considerable distance, got around into the buildings, two or three of them probably, and the great wonder is the explosion did not do a great deal more damage than it did. We have had evidence in court that gas will permeate the earth for a very considerable distance. In one case which I tried in Washington county the evidence showed it permeated probably ninety or a hundred feet into a house, by degrees worked into the fire, exploded and blew the whole house to pieces, blew the occupants out of the building into the yard, injured them considerably and burned the house, and the gas, although it was cut off at six o’clock in the morning — the explosion occurring at five — continued to burn with flame from five to ten feet high, up until late in the forenoon, showing that the earth had absorbed it like a sponge, and by degrees it worked out and burned just as it did here. In this case the gas was turned off a considerable time before the fire ceased to make its appearance, and the reason of that is, the gas first gets into the soft earth, is absorbed and by degrees works out. [The whole question as to the liability of the Chartiers gas company depends on whether or not that company has exercised reasonable care in the use and maintenance of the line after it came under their control, after it passed out of the control of Martin Joyce; or whether or not at the time they took it from him, assuming it was done before this accident (which I do in presenting this case this way), they failed to make that kind of an inspection that they ought to have made for the purpose of seeing whether the line was in good order or not.]0 I have no idea that the law is such that I may employ a man to do a job, and when it is apparent to me that his work may tumble down — say to build a house on a street — take it off his hands and not be responsible if it tumbles down the next day and injures somebody. I have no business to take it off his hands if I have taken it. It is my duty to see, if the house is unsafe, that it is taken down or propped up, and that is the principle that covers this case, so far as the Chartiers Valley Gas Company is concerned. Plaintiff’s points: 1. That the contract in evidence between the Chartiers Y. Gas Company and Martin Joyce will'not relieve the said company from liability in this case, if the jury find that the injuries complained of resulted from the negligent laying of the pipes of said company by said Joyce. Answer: Refused. 2. That if Martin Joyce did his work under the contract between him and the Chartiers gas company in a negligent and improper manner, so that a reasonably prudent man would apprehend injury to the pipes of the other gas companies, and the Chartiers company knew that the work had been negligently and improperly done, but, nevertheless, took it off his hands, and ought as reasonably prudent men to have anticipated injury to • the pipes of the other companies, by the sinking of the ground, resulting from Joyce’s improper and negligent work, said Chartiers gas company will be liable, notwithstanding the terms of the contract between Joyce and said company. Answer: Affirmed.1 3. If, after Joyce finished and delivered the work, at the place of the accident, the said Chartiers gas company knew or ought to have known that the ground was insufficiently tamped and was sinking, said company were bound to anticipate probable injury to the pipes of the other companies, and repair the work, and the failure of said company so to do was negligence. Answer: Affirmed.2 4. Under the contract in evidence a duty rested on the Chartiers company to see that Joyce had done his work properly before accepting it, and if without proper examination, they took it off his hands, and the injury resulted from Joyce’s negligent work, the gas company will not be excused. Answer: Refused. This point may need some explanation. The defendant company, under the contract in evidence, could not be held liable for any damage directly arising from the negligence or misconduct of the contractor, during the time he had charge of the work, and while it was under his exclusive control. After defendant company took charge it would be liable for any injury arising from a cause that was visible or apparent, or such as could have been discovered by the exercise of reasonable care and prudence on tbe part of tbe company before it was accepted from the contractor, or such as became apparent or could have been discovered afterwards by the company, even if such cause arose from or was the result of negligence of the contractor previous to acceptance.3 Defendant’s points: 1. If the jury should find from the evidence that the digging of the trench, laying of the pipes, filling up the trench, etc., was done by Martin Joyce under the contract in evidence, between said Joyce and the said Chartiers Valley Gas Company, their verdict should be for the defendant, the Chartiers Valley Gas Company. Answer: Refused.4 2. Under the pleadings and evidence the verdict must be for the defendant, the Chartiers Valley Gas Company. Answer: Refused.5 The verdict of the jury was for the plaintiff for |500, as against the Chartiers V. Gas Co., and in favor of the defendant, the Philadelphia Company, and, judgment being entered, the Chartiers V. Gas Co. took this writ assigning for error: 1, 2. The answers to the plaintiff’s points12 8. The qualification of the answer to the plaintiff’s point.3 4, 5. The answers to the defendant’s points.4 5 6. The parts of the charge embraced in [ ] 6 [ ] 6
118 Pa. 374Widener v. Beggs (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 250 October Term 1887, Sup. Ct.; court below, No. 120 December Term 1887, C. P. No. 1. This was an amicable action in ejectment in which C. C. Beggs and Lizzie D., his wife, in right of said wife, and H. C. Beggs, and Lulu D., his wife, in right of said wife, were plaintiffs, and P. A. B. Widener, trustee, was defendant. On September 27,1887, a case stated in the nature of a special verdict was filed, whereby it was shown: That Joseph Dilworth, of Pittsburgh, died on February 26, 1885, leaving to survive him his wife, Louisa M. Dilworth, and five children, to wit: Lawrence, Charles R. and Joseph R. Dilworth, and Lizzie, the wife of C. C. Beggs, and Lulu, the wife of H. C. Beggs. The decedent left a will dated December 27, 1884, duly admitted to probate on March 25,1885, and letters issued thereon to the executors therein named. This will provided: 1. I give to my beloved wife Louisa, in lieu of dower, my present residence with the lands and improvements as the same may be found at the time of my death; the same being on the southern side of Fifth avenue, Twenty-second ward, Pittsburgh. Also the whole of my household furniture, pictures, goods and wares together with my carriages, wagons and other vehicles, and all horses, cattle and other live stock on hand, the same not to be appraised or placed in any inventory whatever, as is usually required by law. 2. It is my desire that my beloved wife Louisa, shall have the interest that I now hold in the firm of Dilworth Brothers, and shall hold the same as long as it is mutually agreeable with the majority of interest, and also that she shall have transferred to her credit twenty-five thousand dollars of my loan account in the aforesaid firm. Also that one hundred shares of one thousand dollars each in the firm of Dilworth, Porter & Co., Limited, be transferred to her account. 8. I also desire that my executors transfer to' each of my children, twenty-six shares of one thousand dollars each in the firm of Dilworth, Porter & Co., Limited. The balance of my estate shall be divided between my children, share and share alike, except what may be coming to my daughters, Lizzie and Lulu Beggs. Their moneys to be invested by my executors in bonds, mortgages or other good securities, they receiving the interest on same, and at their death to revert to their children after they have arrived at the age of twenty-one years. 4. As it is my desire to make some private bequests to whomsoever I may hereinafter direct by written memoranda to be enclosed with this my will, or to be found among my private papers, these said bequests I wish paid over within three years without interest. Item: — I do nominate, constitute and appoint my sons, Lawrence, Charles R. and Joseph R. Dilworth, executors of my last will and testament. Item: — Should my beloved wife desire to quit my present residence and deem it advisable to sell the same at any time in fee simple and invest the proceeds in securities as may be jointly agreed upon with my executors, it is my wish to grant her the power to do the same. Witness my hand and seal the twenty-seventh day of December, 1884, A. D. At the decedent’s death he was possessed of a large amount of personal property and seized in fee simple of a large amount of real estate, situate in Pennsylvania, Minnesota and Missouri, and, inter aha, of a certain lot of ground in the 18th ward of Pittsburgh, bounded and described.....and containing five acres more or less. The residuary estate consisted of both real and personal estate. On August 1, 1887, the said C. C. and Lizzie D. Beggs and H. C. and Lulu D. Beggs, plaintiffs, contracted with said P. A. B. Widener, trustee, defendant, to sell and convey to him the undivided two fifths of the lot in the 18th ward for $12,000,- payable in certain instalments, and on August 24, 1887, tendered a good and sufficient deed in pursuance of said contract, which deed was refused by the defendant on the ground that he was advised that under the will of said deceased the undivided two fifths of said lot was not vested in said defendants in fee simple. If the court should be of the opinion, etc., etc. After argument, on October 8, 1887, the court, Collier, J., “being of opinion that under the will of Joseph Dilworth, deceased, the undivided two fifths of said lot of ground vested in said Lizzie D. Beggs and Lulu D. Beggs in fee simple, judgment is entered in favor of the plaintiffs in the sum of $12,000, to be released upon compliance by the defendant with the terms of the agreement set forth in the case stated.” Thereupon the defendant took this writ assigning said order as error.- ' '
118 Pa. 379Commonwealth v. Gipner (1888)
1. The record of a conviction under the act of April 22, 1794, 3 Sm. L. 178, in substantial conformity with the form prescribed in § 4 thereof, is sufficient, and on certiorari the Court of Common Pleas may not consider the notes of testimony returned as a part of the record and re-try the ease on its merits. 2. Where a defendant, convicted before a magistrate and sentenced under said act, has voluntarily paid the fine and costs, the Court of Common Pleas has no power on certiorari subsequently to reverse the judgment and order restitution.
118 Pa. 383Gleghorne v. Gleghorne (1888)
1 OP ALLEGHENY COUNTY, IN EQUITY. No. 254 October Term 1887, Sup. Ct.; court below, No. 168 December Term 1886, C. P. No. 1, in equity.
118 Pa. 396Warden v. Lyons (1888)
2 OE ALLEGHENY COUNTY. No. 258 October Term 1887, Sup. Ct.; court below, No. 83 January Term 1887, C. P. No. 2. The cause below was a scire facias sur mortgage, by William G. Warden against Kate Lyons, executrix of Andrew Lyons, deceased, and Kate Lyons, widow of said deceased. The mortgage was dated December 10, 1881, and executed by Andrew Lyons and Kate, his wife, to William G. Warden, to secure the repayment of a loan to Andrew Lyons of $13,000.
118 Pa. 402Price v. Grantz (1888)
EBBOB TO THE COTJBT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 163 October Term 1887, Snp. Ct.; court below, No. 276 April Term 1885, C. P. No. 2. On February 27,1885, an action in case for maintaining a nuisance was brought by George Grantz against W. G. Price and Mary Lane, partners as William G. Price & Co., the Berlin Iron and Lead Co. and others. The declaration described the property owned and occupied by him and his family and complained: And the said defendants have been the owners or lessees and possessed for many years of a lot or piece of ground situate in said city of Pittsburgh, adjoining the premises of said plaintiff; and said defendants on or about the spring of 1883 did unlawfully cause to be built on said premises certain buildings and a tall tower for the manufacture of lead pipe and shot, etc., and in the said buildings and tower the said defendants have since carried on the said manufacture of lead pipe,, shot, etc., and in the same use large quantities of arsenic and lead and other poisonous minerals, and in the said manufacture did cause said lead to be heated, and melted and caused the same to be hoisted to the top of said tower about two hundred feet high and mixed with arsenic and poisonous ingredients, and thence cast and passed through separators and fall to the ground, and when so doing, when the wind is blowing in the direction of the plaintiff’s premises, poisonous parts, dust or atoms produced thereby are carried over into and upon the premises of said plaintiff and are mixed and intermingled with the air and water, carpets, furniture, bed-clothing, fuel, etc., in and upon the premises of said plaintiff and there breathed into and absorbed into the mouth, nostrils, throat, lungs and body of said plaintiff, his wife and his family, causing and producing lead-poisoning, cramps, sores and other diseases of their systems ; injuring and destroying their health and endangering their lives, and thus rendering said plaintiff’s premises unfit for habitation, and creating, causing, keeping up and continuing a common nuisance, and the same has been so kept up and continued from the time of the erection of said shot tower and leadworks until the present time and is still so kept up and continued, by reason whereof said plaintiff has suffered, etc. The plea was not guilty. At the trial on March 2, 1887, the facts appeared: Wm. Gh Price & Co., iron founders, in 1880 added to their business a plant for the manufacture of lead pipe, and in 1888 a shot-tower and machinery for the manufacture of shot. The iron foundry and leadworks were at the corner of Fifth avenue and Price street, in a well settled part of the city. The building constituting the leadworks was what was known as an ironclad, 30 feet in width by about 120 in depth, and, fronting on Price street, was separated from the foundry by an alley. The shot-tower, which was of brick and about 175 feet high, stood in the rear of the leadworks, and running from it was a warehouse for lead goods fronting on Fifth avenue. On the west side of this warehouse and in the angle of the warehouse and lead factory, was the residence of Mrs. Lane, one of the defendants, and on the east side of it was the property of the plaintiff, on which was a brick building occupied by him as a dwelling. In September, 1884, the plaintiff’s wife was prostrated with sickness which her physician diagnosed as lead-poisoning. The plaintiff complained to the city board of health that the defendants were maintaining a nuisance dangerous to the health of the neighborhood, but the board did not interfere, and this suit was brought. The plaintiff introduced evidence that his wife and every member of his family suffered from lead-poisoning, the wife most seriously. The defendants, claiming that the plaintiff had declared upon a common nuisance, introduced evidence that their works were operated in the methods practiced by similar manufactories; that lead factories and shot-towers, similar in construction and operation, were created and maintained in thickly settled parts of the principal cities ; that the vapors of lead were generated only when the metal was subjected to a temperature exceeding 2600 degree F.; that in defendant’s manufacture of lead pipe the metal was subjected to a temperature only sufficient to melt it and maintain it in--a molten state, or about 600 degrees F.; and, that in the making of the combination of lead and arsenic, called “ temper,” used in the manufacture of shot, the conditions were such that no danger could result to the neighborhood. Neighbors testified that no offensive vapors had ever been observed since the erection of the shot-tower and leadworks. Physicians testified that they knew and had heard of no cases of lead-poisoning in the neighborhood excepting the single case of Mrs. Grantz, and that some persons were more. susceptible to the noxious effects of lead than others. The court, Magee, J., charged the jury: Counsel have presented certain points which, in connection with what I may have to say in my charge, will, perhaps, cover what is the duty of a court in a trial of a cause, and that is to give to you what is the law of the case, leaving the facts to be determined by you, which properly belongs to you, and which is cast upon you as a duty under your oaths. The plaintiff’s points: 1. That a leadworks or manufactory situated or operated in a city or populous district is a nuisance per se. Answer: Refused. 2. That a shot manufactory located and operated in a city thickly inhabited is a nuisance. Answer: Refused. The defendants’ points: 1. Under the pleadings in this case the plaintiff must show that the defendants in operating the leadworks and shot-tower, or one of them, were guilty of maintaining a common nuisance which was inconvenient and troublesome to the whole neighboring community in general, and that from the same the plaintiff suffered a special or peculiar injury. Answer: Refused.2 2. Under all the evidence the plaintiff has not shown that either the leadworks or shot-tower was a common nuisance.3 Answer: Refused. If the'court so decline to charge, then: ' 3. The burden of proof is upon' the plaintiff to show, (1) that the defendants were guilty of maintaining a private nuisanee in the operating of the shot-tower or leadworks; and, (2) that as a result from such operation he (the plaintiff) suffered injury, and a failure on the plaintiff’s part to prove both of such propositions to the satisfaction of the jury would prevent a, recovery. Answer: Affirmed. 4. That the mere fact that the plaintiff’s wife, or himself, or his children, suffered from lead - or arsenical poisoning, is not sufficient to enable the plaintiff to recover; but the plaintiff must prove that such poisoning was caused by the operation of either the shot-tower or the leadworks by the defendants. Answer: Affirmed. 5. The plaintiff, to recover, must show an actual and substantial interference with and annoyance to him or his property in the use and occupation of this property, and a slight and rare damage would not entitle him to recover. Answer: This point, as an entire proposition, is refused. While it is true that an actual and substantial interference must exist, the plaintiff may still recover for a slight and rare damage, if that damage be actual and substantial, and the result or the effect of a nuisance created and maintained by the defendants.4 6. If a person lives in a city like Pittsburgh, he or she of necessity submits himself or herself to the consequences and obligations of trades which may be carried on in his immediate neighborhood; and if the jury believe that the shot-tower and leadworks are carried on without injury to life or health, and without noisome smells, the plaintiff cannot recover. Answer: Affirmed. 7. The defendants are entitled to use their property for any lawful business, though it may be in a slight degree inconvenient or unpleasant to the owners of the adjoining property; and to entitle the adjoining owners to suppress such works, they must show that such business is injurious to life or health, or emits such noisome smells as would render the plaintiff’s property unfit for occupation. Answer: Affirmed. 8. The plaintiff cannot recover unless the jury should be satisfied from the evidence that the leadworks or shot-tower, as conducted by the defendants, was either a common or private nuisance. Answer: Affirmed. 9. In determining this case the jury should remember that the plaintiff does not claim that either the leadworks or the shot-tower was run by defendants in a negligent manner; and should the jury think that the said works, run in an ordinarily careful and skilful manner, would not be a nuisance, either public or private, the plaintiff could not recover, even though the jury should also think that, by some carelessness or negligence of defendants’ employees at the time of the fire, or at some other time, the plaintiff or his family yvere hurt. ■ Answer: Affirmed. 10. The effect of a peculiar and very exceptional idiosyncrasy or susceptibility on the part of a person, by which he or she may be affected by a slight trace of arsenic or lead, which would not in any degree affect other persons, would not be such an injury as would of itself condemn the source of such effect as a nuisance. Answer: Refused, as being only a naked proposition, unconnected with the facts of the case.1 [The court then read the declaration.] That is the substance of the claim as presented in his declaration. I am not giving it as anything that is proven, but simply what is stated as the ground of his complaint. To this declaration the defendants plead not guilty, a general denial of their liability in this action. It is a well settled principle in law that the owner of land may make use of it according to his own pleasure, and for any purpose, provided that in the use thereof he does not injure his neighbor or the public. Sic utere tuo ut alienum non laedas ; so use thine as not to injure another, is a maxim which the law requires shall be observed by every one, and is the only limit to unqualified and unrestricted liberty in the use to be made of property by the owner. It is the right, therefore, for any one to carry on any lawful business on his own land if the operations and results be entirely confined to his own premises and do not affect, endanger or injure any person outside. The manufacture of lead pipe and shot is not an unlawful business in itself, and therefore can be carried on if conducted so as not to injure individuals or the public. If the manufacture, however, becomes a nuisanee, it can be controlled; if a common nuisance, by indictment; if a private nuisance, by an action for the damage sustained by the individual, and in some cases, of an aggravated character at least, by abatement through the instrumentality of a bill in equity at the instance of the private sufferer. The injuries complained of here are such that, if caused by the defendants in the use of their property and in the transaction of their business, the plaintiff would be in law entitled to ask for redress. To use one’s own property in such a way as to create poisonoug odors and the like whereby his neighbor’s health and comfort are endangered or destroyed, and his premises rendered uninhabitable, or dangerous to be occupied, could not be regarded as the use of “ thine so as not to injure another.” The plaintiff does not allege that he has sustained any injury or damage by reason of negligence on the part of the defendants. Negligence, therefore, is not an issue in this controversy. The allegation is that the defendants unlawfully erected works in which large quantities of arsenic and lead and other poisonous minerals were used, and that the atoms, particles, dust and poisonous odors therefrom were cast into and upon the premises of the plaintiff, to his great damage, and to the creation and maintenance of a common nuisance. A nuisance is defined to be “ anything done to the hurt or annoyance of the land, tenements or hereditaments of another.” A common or public nuisance becomes a private nuisance also when it especially annoys or injures an individual. An actionable nuisance is anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights. It is not meant by this that every annoyance is actionable. There are annoyances without fault, and such as in the reasonable use of property must be borne with by others. [But I need not discuss the subject further than to cite from the Pennsylvania Lead Co.’s App., 96 Pa. 116. In that case, Justice Gordon, quoting from Blackstone, says: “ If one erect a smelting house for lead so near the land of another that the vapor and smoke kill his corn and grass and damage his cattle therein, this is held to be a nuisance.” He also adds: “All intelligent persons are aware that lead vapors are poisonous, and this the more so, as they are often, as in this case in hand, accompanied with arsenic.” The Pennsylvania Lead Co. was engaged in smelting ores, while the present defendants are not so engaged, but in both cases the product of the works is obtained by the use of lead and arsenic in its manufacture. Under the authority of this decision I am of the opinion that it is a nuisance to erect and conduct works which produce like effects to that of the Pennsylvania Lead Co., although not engaged in the same business.]5 If the use of lead and arsenic produce the deleterious and poisonous effects indicated in the case, no matter what the business conducted may be, it would be regarded as a nuisance, and one which could be abated by an injunction. You will therefore determine from the evidence produced in your hearing in court and from your inspection of the premises made by consent of the parties, first, whether the defendants in the prosecution of their business created and cast upon the plaintiff’s premises the poisonous vapors, atoms, particles, dust and odors complained of; and second, if you find such to be the fact, to ascertain the amount of the damage and the extent of the injury which the plaintiff has sustained therefrom. If you find that no nuisance was created and maintained, your verdict will be for the defendants. If, however, you should find otherwise, it will be necessary that you should know the measure of damages as prescribed by law for the injuries which have been sustained. The damages claimed by the plaintiff are of three kinds: 1. For injuries to his person and health. 2. For injuries resulting to his real estate. 3. For injuries to his wife and children...... The verdict was for the plaintiff for $700, and, judgment being entered, the defendants took this writ assigning for error: 1-4. The answers to the defendants’ points.1 to 4 5. The part of the charge embraced in [ ] 5
118 Pa. 415Pittsburgh Boat-Yard Co. v. Western Assurance Co. (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 117 October Term 1887, Sup. Ct.; court below, No. 205 July Term 1887, C. P. No. 2. On May 22,1884, the Pittsburgh Boat-yard Co., Limited, began an action of covenant against the Western Assurance Company of Toronto, Canada, declaring upon a policy of insurance against loss by fire, dated September 15,1883. Among the conditions of the policy were the following: “ This company will not be liable by virtue of this policy or any renewal thereof until the premium therefor be actually paid.” . . . “ It is further understood and made part of this contract that the agent of this company has no authority to waive, modify or strike from this policy any of its printed conditions.” At the trial on March 18, 1887, before White, J., the facts appeared: John Conway an insurance broker in Pittsburgh, on behalf of the plaintiff, had obtained an insurance upon its property for $3,000, at 4 per cent, premium, in three policies issued by three companies, not including the defendant. Shortly, afterwards, these companies canceled the policies. Mr. Conway, who surrendered them for the plaintiff, received the unearned portion of the premiums thereon, amounting to $105, and was to replace insurance in other companies. He then negotiated with John D. Biggert, at this time the general agent in this state of the Western Assurance Co. of Toronto, Canada, as well as its local agent in Pittsburgh, representing also the Phoenix Insurance Co., of London, who placed $1,500 of the insurance with the defendant company and $1,500 with the Phoenix company at 6 per cent, premium. When the two policies were received by Mr. Biggert he handed them over to Mr. Conway for the plaintiff. At that time Mr. Conway offered to pay the $90 premium upon one of the policies out of the plaintiff’s money still in his hands, but it was arranged that Mr. Biggert would wait a short time so as to receive the premiums on both policies at once. In a few days the Phoenix company canceled its policy and returned it to Mr. Biggert, thus leaving only the policy of the defendant company. Mr. Biggert’s course of business with the defendant company was to make monthly reports about the middle of each month of all policies issued through him the previous month, and, 30 days or so after the report was made, to transmit the money for the premiums represented therein. His report for October, 1883, embraced the plaintiff’s policy, and in November following he transmitted to defendant company about $2,800, representing the premiums upon the policies in his October report, which sum included $90 for the premium on plaintiff’s policy. On November 6, 1883, a few days before the sending of this remittance, the property insured was destroyed by fire. Mr. Biggert did not notify the company of the fire when he sent the remittance. He testified that it was by an oversight that he had included the $90 premium on the plaintiff’s policy in his October report and November remittance, and that the premium had never been paid to him. In December, 1883, Mr. Conway tendered the premium to Mr. Biggert who refused it. The sum Mr. Biggert advanced upon the policy was not returned to him or adjusted between him and the company until in January, 1885, after this suit brought. The plaintiff company had actual knowledge that the premium had not been paid over to Mr. Biggert when the policy was delivered to Mm and for some time afterwards. On or about November 21,1883, proofs of loss were made out and submitted to a Dr. Thorn, appointed by Mr. Biggert to investigate the circumstances and to adjust the loss. Exceptions were made to the proofs furnished; one was that the certificate of the nearest magistrate was not attached, the other called the attention of the plaintiff to the fact that the adjuster had been informed the premium had never been paid, asking an explanation why it was not paid and on what ground a waiver was asked for. A new set of proofs was supplied meeting the objections suggested, but containing no explanation or reference to the nonpayment of the premium. The plaintiff requested the court to charge the jury as follows: 1. That if the jury find from the evidence that Biggert was the general agent of the defendant company, for the state of Pennsylvania; that as such he accepted risks for the company, issued and delivered its policies, countersigned by him; that in accordance with the usual mode of business adopted by bim and the company he on or about the middle of each month rendered to the company an account or statement of the policies issued, and the premiums thereon for the preceding month, and in about thirty days thereafter, remitted or paid to the company the balance of said accounts for premiums, after deducting Ms commission and other charges; and that the premium on the policy in suit was accounted for and paid to the company by Biggert, in accordance with this mode of business, the condition in the policy in regard to the prepayment was thereby waived, and the plaintiff is entitled to recover. The court refused this and other like points of the plaintiff, and, as requested in the fourth point of the defendant, charged the jury that under all the evidence the verdict should be for the defendant. A verdict for the defendant company having been rendered, the plaintiff took this writ, assigning as error inter alia the refusal of said points and the direction to find for the defendant.
118 Pa. 421Appeal of McIntire (1888)
FROM THE DECREE OF THE COURT OF COMMON PLEAS No. 2 OF ALLEGHENY COUNTY. No. 76 October Term 1887, Sup. Ct.; court below, No. 862 April Term 1884, C. P. No. 2 in equity. The proceeding in the court below was by bill in equity filed on March 13, 1884, by S. P. Shriver against David R. Mclntire, A. J. Nellis, A. J. Nellis, executor of Eliza M. Nellis, deceased, impleaded with James H. Stokes, not served. On November 4, 1878, “Aaron J. Nellis of the first part, Samuel P. Shriver of the second part, and James H. Stokes of the third part, all of Allegheny City, Pa.,” entered into articles of copartnership, under the name of Nellis, Shriver & Co., for the purpose of carrying on the manufacture of certain agricultural implements. Nellis contributed the stock, tools and machinery he had on hand, buildings, grounds, etc., with the rights to manufacture implements under various patents owned and controlled by him, forming a basis of his capital stock, aggregating 180,000. The articles contained the provisions which follow: The party of the second part shall put in as his share of the capital stock $20,000, in the manner and form hereinafter stipulated, viz., $10,000 in cash and $10,000 as soon as the requirements of the business may demand it, and until such payment is made by the party of the second part, he shall be chargeable with interest on the same. The party of the third part is to have a one tenth part of the net profits of the business, for which interest on $10,000 at the rate of six per cent, per annum is to be deducted from his portion of the profits, and the remainder to be considered as his capital stock, until the amount of $10,000 is so accumulated, when his interest in the business shall be considered as that much capital. As a guarantee by the party of the first part to the party of the second part, on account of his not being familiar with the business, and as an inducement by the party of the first part, he guarantees that the profits of the business shall be made to the party of the second part equal to twenty per cent, per annum on his capital of $20,000. On September 25,1879, the interest of A. J. Nellis in the copartnership was sold at sheriff’s sale and bought in by S. P. Shriver, who in October following transferred it to Mrs. Eliza M. Nellis, wife of A. J. Nellis, subject to his own rights under the articles of association. The business was then continued, in the direction of liquidation, under the management of Shriver and Stokes, with Nellis assisting and acting under a power of attorney as the agent of his wife, until February 10, 1882. In the meantime, certain creditors, alleging that the said sale of Nellis’s interest was fraudulent, issued execution and had it re-sold at sheriff’s sale. By articles, dated February 10, 1882, “ between David R. Mclntire, [assignee of Mrs. A. J. Nellis] A. J. Nellis and Eliza M. Nellis, of the one part, and Samuel P. Shriver and James H. Stokes, liquidating partners of Nellis, Shriver & Co., of the other part,” the firm was dissolved^ Shriver and Stokes were to continue as liquidating partners and take charge of the cash on hand, bills payable, book accounts, and other uncollected claims, and collect the same, pay off the liabilities “ and settle with Mclntire for the Nellis six tenths interest in said firm, etc., on the terms provided in the articles of agreement, as though, there had never been any sheriff’s sale and Mclntire were A. J. Nellis.” The stock on hand, as per inventory taken, amounting to $26,000, was to be taken by Mclntire and receipted for by him as a payment of that amount on the six tenths interest which was of Nellis and was to be charged to that interest. After other immaterial provisions, these articles of dissolution continued: And whereas, a bill in equity has been filed in the Court of Common Pleas No. 1 of Allegheny county, at No. 544 December Term 1881, by the receivers of The Crawford Manufacturing Company, to recover the interest which was of said A. J. Nellis in said firm, against said Shriver & Stokes, and cross bill, etc., filed, and the cause is now pending for trial; now, therefore, the said Mclntire agrees to give to said Shriver & Stokes an obligation with sufficient surety, conditioned that he will cause the proper defence to be made to said action, and that he will pay any decree or judgment that may be recovered against said Shriver & Stokes, for or on account of said interest, and shall indemnify and save them harmless from any and all loss, liability, damages and costs, on or account of or by reason of said action, and also that Mclntire shall pay to Shriver any amount of money, if any, which may be necessary upon final settlement of the affairs of Nellis, Shriver & Co., to make said Shriver whole upon his capital of $10,000, and profits according to the terms of the articles of copartnership; and to Stokes, whatever amount of money, if any, to give Stokes the amount which upon final settlement may be due him. In pursuance of the foregoing, Shriver & Stokes turned over to Mclntire the $26,000 stock of goods with possession of the premises, and entered upon their duties collecting the outstanding claims and paying the debts of Nellis, Shriver & Co., until about June 1, 1888, when they claimed to have collected all the available assets and to have paid the debts of the firm, except a balance due the Siemens-Anderson Steel Co., of $157.50, which had been attached. Mr. L. P. Stone, who had been appointed examiner and master, having found the foregoing facts, proceeded to pass upon the matters of contention, among which, material to the question decided in this court, was— 3. As to the amount of profits S. P. Shriver is entitled to, whether to three tenths of the profits realized by the firm, or to 20 per cent, per annum on $20,000, or 20 per cent, per annum on $10,000, the amount he actually paid into the firm; or, finally, 20 per cent, on $10,000 per annum, less 6 per cent, on $10,000 during the continuance of the partnership. After quoting the guaranty clause in the articles of association, the master proceeded: Now there is no controversy as to the meaning of all this in relation to Shriver’s profits; indeed, there could hardly be any. It looks like a very liberal offer. The person who made it best knows why, and on what faith he made it. Certainly the results of the business did not justify it. The suggestion might be made, and probably was by counsel, that it is unjust, not equitable, that one partner should receive nearly all the profits; and, again, that the language employed contemplates the paying in the second $10,000, which was not done — the provision he shall put in $20,000 — which he never did. But read a little further, and we find he was to pay it in when the requirements of the business demanded it, and till that time he was to pay interest on this $10,000. He must be ready to put in the second $10,000 when required, but have the use of it in the meantime, by paying to the firm interest. In this light he was actually a borrower of the firm. The interest seems to stand in place of the $10,000, and if the business did not require the paying it in, he would certainly not be required to pay it in at all; but there is no qualification or limitation to the guarantee. After all the preceding provisions respecting the money, and the division of profits, Nellis guarantees 20 per cent, to Shriver on his $20,000 per annum. Nellis was familiar with the business, was confident and sanguine of success, with his valuable patents mentioned, machinery, facilities, etc.; with a well-established trade, no doubt all that was needed was the money to put things in motion; and ten thousand dollars would do this, and then with ten thousand dollars more, yielding interest to the firm, to be paid in should they find it necessary, would guarantee such success that Nellis thought he could afford to make the guarantee he did, and thus secure the money. Such, no doubt, was the view and the reasoning of Mr. Nellis, which led to the offer. In this view of the matter there can be but one defence to the claim of Shriver, and that is that the requirements of the business demanded the paying in of the second $10,000, and Shriver failed to put it in according to his agreement...... In consideration of all these questions and all the evidence touching it, the master is of the opinion and so finds: That no demand was ever made on Shriver to pay in the additional or second $10,000 spoken of in the article of agreement; and, further, that the requirements of the business did not demand it; that paying interest on that amount is a compliance on his part with the article of copartnership relative to it; and the guarantee clause is binding as against Mclntire, because he stands in the place of Nellis, and has bound himself in the article of February 10th, the article of dissolution, to pay to Shriver his ten thousand dollars and such profits as he is entitled to under the article of copartnership, which is equal to twenty per cent, per annum on $20,000, less six per cent. on $10,000 for three years and three months...... Having thus passed upon and disposed of the facts involved in the case, the accounts will be stated accordingly: James H. Stokes has no stock account or account as partner. He never acquired such interest under the article of association, and the one tenth interest mentioned as his will be treated in stating the accounts as belonging to the Nellis interest, making that interest seven instead of six tenths. The stock account of A. J. Nellis was transferred to S. P. Shriver, and from him to an impersonal account, styled The Nellis interest, and which is the interest of D. R. Mclntire, as developed in this proceeding. It is agreed that the profits of the firm of Nellis, Shriver & Co., as shown by the books of the firm, is correctly stated at $14,448.89. The itemized statement in debtor form shows that Shriver & Stokes, as liquidating partners, collected the sum of $37,154.20, and they claim credit by an itemized statement of all money by them paid out in the sum of $23,782.53, showing a balance in the hands of S. P. Shriver of $13,371.67. All debts of the firm being paid, this balance is to be accounted for and distributed in settlement, and statement of accounts between tbe parties, according to tbe articles of copartnership, and tbe findings of the master...... The master reported the following: STATEMENT OF ACCOUNTS. THE NELLIS INTEREST ACCOUNT. Dr. To amount of stock turned over to E>. R. Mclntire $26,000 00 “ Cash for the Nellis note..... 5,500 00 “ Guarantee on 20 per cent, profits 8,653 33 $40,153 33 Or. By Stock.....$21,680 55 “ Profit and Loss (gain) . . 10,142 22 “ Book debts collected and surcharges . . $340 60 Less Seimens-Anderson Co. 157 54 183 06 32,005 83 Balance due by the Nellis interest . . . 8,147 50 S. P. Shriyer. Dr. To cash per liquidation account . . . $13,371 67 “ Collections since liquidation account . . 135 60 “ Willey & Knold, omitted in liquidation account 26 27 “ Amounts surcharged per master’s report . 205 00 u Interest on $10,000 capital .... 1,950 00 $15,688 54 Or. By Cash Capital .... $10,000 00 “ Expenses . . . . 678 50 “ Profit and Loss .... 4,346 67 “ Guarantee from the Nellis interest 8,653 33 “ Seimens-Anderson & Co. . . 157 54 23,836 04 Balance due S. P. Shriver $8,147 50 The master therefore recommended a decree, inter alia, that X). R. Mclntire pay to S. P. Shriver the sum of $8,147.50, with interest from February 11, 1884, and that one half the •costs including the master’s fee be paid by S. P. Shriver and the other half by D. R. Mclntire. Exceptions filed to this report were overruled by the master, and being renewed, they were all dismissed by the court, Ewing, P. J., except one to the allowance by the master of $1,000 to Mr. Shriver and $602.17 to Mr. Stokes, for compensation as liquidating trustees, which exception, on the authority of Beatty v. Wray, 19 Pa. 516; Brown v. McFarland, 41 Pa. 133, was sustained.* The disallowance of these claims for compensation added “the sum of $1,602.17 to the profits of the business. The court then made a final decree that D. R. Mclntire pay to S. P. Shriver the sum of $6,545.33, with interest from February 12,1884, and that each of the parties named pay one half the costs, to include the master’s fee. Thereupon D. R. Mclntire took this appeal, assigning said decree as error.
118 Pa. 430Knox v. Hilty (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 196 October Term 1887, Sup. Ct.; court below, No.. 18 September Term 1886, C. P. No. 1. The cause below was an alias scire facias sur mechanics’' lien filed to No. 50 March Term 1885, in which scire facias. Daniel Hilty'was plaintiff and Andrew Knox and Marcia J. Knox, his wife, owner or reputed owner. The plea was not. shown. At the trial on April -26,1887, before Collier, J., the facts. appeared: On January 80,1885, Daniel Hilty filed a mechanics’ lien to No. 50 March Term, 1885, against Andrew Knox, as owner or reputed owner, with a claim for $704.34, for carpenter’s work done. On March 18th, a scire facias was issued on said lien to 103 June Term 1885, on which a trial was had resulting in a verdict for the plaintiff on June 2d, for $704.37.* Judgment being entered on said verdict, on July 7th, a writ of levari facias was issued thereon and the premises advertised for sheriff’s sale to be held on September 7th, 1885. On September 5, 1885, on motion of the plaintiff’s attorney a rule was granted to show cause, etc., and on September 8th, upon affidavits filed and argument, it was ordered by the court that the levari facias be stayed, that the verdict recovered and judgment entered to No. 103 June Term 1885, be stricken off and the mechanics’ lien filed so amended as to add the name of Marcia J. Knox, wife of Andrew Knox, as a co-defendant with her husband in said lien; that the name of Andrew Knox be stricken out as owner or reputed owner and, in lieu thereof, the name of Marcia J. Knox be inserted as owner or reputed owner, and that the said lien be further amended so as to aver that the said work was done on the building therein described and the materials were furnished with the knowledge and consent and at the request and with the authority and under the direction of said Marcia J. Knox, she being the separate owner of the real estate described; and were for the purpose and actually were performed and applied and used in building upon and improving the said separate real estate, and that said work so done and materials furnished were useful and necessary for the enjoyment of the said separate real estate, and that she, the said Marcia J. Knox, promised and agreed to pay the same; “ And it is further ordered and directed that the said Marcia J. Knox, co-defendant, etc., be served with notice by an alias scire facias, and that she be allowed a period of thirty days to appear and answer.” * The alias scire facias upon which this trial was had was then issued. At the close of the evidence the defendants requested the court to charge the jury, inter alia, that the verdict and judgment to No. 103 June Term 1885 was an adjudication that Andrew Knox was the original contractor with the plaintiff for the erection of the building and personally liable for the work and materials, which judgment was conclusive upon the plaintiff; that the court had no power on the application of the plaintiff on September 8, 1885, to stay said execution and strike off said judgment; that the order of the court amending the record of the mechanics’ lien was void, and the verdict must be for the defendants. The court refused the defendants’ point, and a verdict being found for the plaintiff for 1550, judgment was entered thereon. Thereupon the defendants took this writ assigning as error, inter alia, the refusal of said point.
118 Pa. 436Appeal of the Hite Natural Gas Co. (1888)
A natural gas company, organized as a limited partnership under the act of June 2, 1874, P. L. 271, in its certificate filed stated falsely that Hite, a subscriber for 850 shares, had paid in full by rights of way and other privileges for the company’s line. Hite contracted with the company to furnish the right of way, the pipe for the line and to lay the latter, for a certain amount in cash and 850 shares of stock, and on the same day he contracted with a pipe company for the supply of the pipe to him to be paid by instalments alternately in cash and his notes, the latter to be secured by deposit of an equal amount in the stock of the gas company and of 200 additional shares when the contract was filled, and drew an order on the gas company to pay the pipe company in accordance with his contract with the latter, which order was accepted by the gas company subject to the terms of its own contract with Hite. When the pipe company had furnished the pipe according to its contract, it held Hite’s notes for a large amount secured by a like amount of the stock. On application, the gas company refused to deliver the 200 additional shares, ón the ground that Hite had failed in his contract with the latter and had received cash payments under said contract in excess of the amount he was entitled to. Hite was insolvent and the gas company was about to transfer its assets to another company composed of substantially the same persons. On a bill in equity filed by the pipe company against the gas company: Held, 1. That the plaintiff was entitled to a decree for an amount equal to the value of the stock withheld, as of the time when it should have been delivered, with interest thereon. 2. The stockholders of the gas company, having filed a statement which was false as to the subscriptions to its capital stock, were not entitled to the protection of a limited liability under the act of 1874, but were liable as general partners. 3. That the court properly exercised jurisdiction to grant a permanent injunction restraining the transfer of the gas company’s assets, to decree a dissolution and appoint a receiver and to grant full relief.
118 Pa. 455Gould v. McFall (1888)
2 OE ALLEGHENY COUNTY. No. 52 October Term 1885, Sup. Ct. On November 14, 1880, Robert McFall recovered a judgment against Wm. L. Gould and Caroline Gould, his wife, for groceries and provisions furnished. Mrs. Gould took an appeal to the Court of Common Pleas. On October 26, 1883, the cause being called for trial, the defendants did not appear, and judgment was entered against them for $25.26, with interest from July 3, 1880.
118 Pa. 458Appeal of the City of Pittsburgh (1888)
1 OF ALLEGHENY COUNTY, IN EQUITY. No. 187 October Term 1887, Sup. Ct.; court below, No. 44 June Term 1887, C. P. No. 1, in equity.
118 Pa. 468Carothers v. Philadelphia Co. (1888)
APPEAL FROM THE DECREE OF THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 249 October Term 1887, Sup. Ct.; court below, No. 218 March Term 1886. On January 7, 1886, James Carothers filed a bill in equity against the Philadelphia Company, George Westinghouse, Jr., T. A. Gillespie and J. R. McGinley, averring: That' plaintiff was seized in fee of a tract of land in Penn township containing 122 acres; that the defendants had entered thereon and intended to appropriate two strips through it, each six feet wide, for the purpose of laying therein pipe-lines for the transportation of natural gas; that the company defendant had filed a bond, but said bond had not yet been.approved ; that the charter of said company did not confer upon it the right of eminent domain for the conveyance of natural gas, and that if it did confer such right, it was unconstitutional and void, in that it attempted to authorize the taking of private property for private use, and, in that no mode was provided for the assessment of damages; that said company had not filed its written acceptance of the act of May 29, 1885, P. L. 29, and said act was not applicable to said company, and if it were, it did not confer upon it the right of eminent domain and was unconstitutional and void, in that it attempted to authorize the taking of private property for private use, and, in that it did not disclose in its title the purpose to grant the light of eminent domain to companies incorporated prior to its passage ; and, that said company had not paid, or secured to be paid, the damages which the plaintiff would sustain by the appropriation of his property: Praying for an injunction and other relief. The answer set forth, other than admissions: That the bond of defendant company was approved on January 9, 1886; that it was then, and for a long time had been, engaged in the business of transporting natural gas both on its own account and' for various parties; that plaintiff had been secured, by the bond filed, in the payment of all damages to accrue by the appropriation of his property, and that George Westinghouse, T. A. Gillespie and J. R. McGinley were only interested as officers of said company. A preliminary injunction having been granted, the cause was put at issue and referred to Mr. Jacob H. Miller, as examiner and master, whose report of his findings of fact and conclusions of law was as follows: The master finds that the Philadelphia Company had its origin in the act of March 22,1871, P. L. (1873), 955. “An act to incorporate the Empire Contract Company and define the powers thereof.” The second section of said act provides as follows : “ The said corporation shall also have, exercise and enjoy the same rights, powers, privileges, franchises and immunities as are conferred in and by an act of assembly of this commonwealth entitled ‘An act to incorporate the Pennsylvania Company,’ approved on the 7th day of April, 1870, as if the same were herein specially and particularly set forth.” The charter of the Empire Contract Company contained this provision, viz.: “ That the stockholders of said company by and with the consent of the holders of at least two thirds of the shares of stock, be and are hereby authorized to change the name and title of the said company.....which change shall be valid after the filing of a certificate in the office of the secretary of the commonwealth,” etc. Pursuant to the authority thus given, the name of the company was several times changed and the last time to the Rio Grande Extension Company. While existing under the latter name, a suit was brought against the company by the commonwealth to recover taxes alleged to be overdue and unpaid. Defence was made upon the ground that the corporation was a railroad company, and consequently within the exemption of such companies from liability for the kind of taxes claimed. This defence failed, and upon judgment entered in favor of the commonwealth, an execution was issued and the property and franchises of the company sold by the sheriff of Dauphin county on March 11, 1884, to Mr. M. E. Olmsted, who purchased for himself and others. Thereupon a reorganization was had on May 24,1884, and a certificate thereof filed under the new name of the Philadelphia Company. As now existing this company possesses the powers granted by the act of March 22, 1871, incorporating the Empire Contract Company, in conjunction with the provisions of the act of April 8, 1861, P. L. 259, and its supplement of date May 25, 1878, P. L. 145, under which its present organization was had. These acts provide a mode for the reorganization of corporations whose franchises have been sold at judicial sale. The master finds from the evidence, that the Philadelphia Company was organized under its present directory in July, 1884; that the pipe is laid through the property of the plaintiff, and is used for the purpose of conveying natural gas from the wells in Murraysville, Westmoreland county, to the customers of the company in Pittsburgh and its vicinity. The wells are owned by the company and they have also wells upon leased property. The motive power that forces the gas through the pipes is the initial force with which it comes from the well. The gas is conveyed directly from the pipes to the customers. There were two other companies engaged in the business of piping and supplying gas to customers prior to July, 1884, viz.: The Penn Fuel and the Fuel Gas Company, and had been so for about one year prior to July, 1884. The Philadelphia Company purchased the entire capital stock of these companies, which was paid for partly in cash and partly in stock of the company purchasing. The gas from the wells of the Penn Fuel and Fuel Gas companies is run into the pipe-lines of the Philadelphia Company, along with other gas produced from other wells of the last named company, and from thence furnished to its customers. The company has about 54,000 acres of gas territory leased, and some of it owned in fee simple, and 115 wells either completed or in process of drilling. Some of the Murraysville wells will yield from 300,000 to 1,000,000 feet per hour. From the Murraysville and Lyons Run districts the company has thirteen lines of pipe which, as they near the city of Pittsburgh, branch off so as to occupy the space most convenient for distributing to the streets and manufactories. There is one line of sixteen inches in diameter; others of ten inches, eight, and five and five eighths inches in diameter. The Philadelphia Company supplies directly 361 manufacturing establishments, thirty-four glass-houses in addition, and 5,716 dwellings, and through the Allegheny Heating Company ninety-two manufactories and 3,220 dwellings; at McKeesport 750 dwellings, and through the Tarentum Light and Heat Company 379, making a total of 10,552 manufactories and dwellings. It is estimated the company furnishes two hundred millions of cubic feet of gas per day, equivalent to ten thousand tons of coal a day. The testimony shows that the introduction of natural gas has cheapened fuel one half to the manufacturers. It has added greatly to the convenience and comfort of all consumers by freeing them from ashes, smoke and dirt..... The defendant company sells gas to independent companies, who sell and distribute it to their customers; but there is no evidence to show that it transports through its lines of pipe the gas of other corporations or of individuals. Has the Philadelphia Company the right of eminent domain ? If so, the grant must be found in its charter. It must be conferred for the purposes for which it proposes to exercise it and the use must be a public one : Commonwealth v. Railroad Co., 27 Pa. 353; Lance’s App., 55 Pa. 26; Finney v. Somerville, 80 Pa. 65; Keeling v. Griffin, 56 Pa. 306; Edgewood R. Co.’s App., 79 Pa. 269. The master is of opinion that the defendant company can claim no. rights under the act of May 29, 1885, for the reason that it has not filed with the secretary of the commonwealth its written acceptance of the act, and we have seen that it is not incorporated under said act. We proceed then to an examination of the provisions of the charter..... The Supreme Court in the case of Hespenheide’s App., 32 P. L. J. 305, decided that under their charter, which is made part of that of the Philadelphia Company, the Pennsylvania Company has.’ the right of eminent domain for railroad purposes. In that case the Pennsylvania Company, operating under an assignment of lease of the Pittsburgh, Fort Wayne & Chicago Railway, undertook to condemn lands for an additional track. This was resisted by Hespenheide, the landowner. The Pennsylvania Company contended that it had the right to exercise the eminent domain of its lessor. The master and the court below both held that it had not such right as lessee, but that it had the right by the terms of its own charter. Upon appeal to the Supreme Court the following errors, inter alia, were assigned: “ The’ finding that the Pennsylvania Company, independent of its relation as lessee, has the right to exercise the powers of eminent domain, and take the lands of plaintiff for railroad uses,” and “ In not finding that, even as an independent corporation, the Pennsylvania Company is vested with rights to take private property for corporate uses, though as in this case they seek to take as the lessee of the P., Ft. W. & C. Ry., the plaintiff is entitled to a perpetual injunction.” The Supreme Court affirmed the finding of the court below, and said: “We need not discuss the question whether the right of eminent domain, which the P., Ft. W. & C. Ry. Co. admittedly possesses, passed by its lease to the Pennsylvania Railroad Company, and its assignees, the Pennsylvania Company, for the reason that the right of eminent domain is in terms conferred upon the latter company by its charter.” §§ 1 and 4 are then cited by the court. It thus concludes its. opinion: “In view of this clear grant of power by the legislature any further discussion of the case is unnecessary.” It is clear from the foregoing that the Philadelphia Company has the right of eminent domain for railroad purposes. But this is not the purpose for which it proposes to exercise the power. It is engaged in the transportation of natural gas by means of lines of pipe, in the manner, to the extent and for the purposes found by the master. When we look at the powers granted by the act of April 7, 1870, incorporating the Pennsylvania Company, we find they are varied and extensive. In the case of International Nav. Co. v. Commonwealth, 104 Pa. 38, the Supreme Court considered a charter identical with that of the Philadelphia Company. The International Navigation Company was- incorporated by an act of May 4,1871, P. L. 565, which conferred upon it all the rights, powers and privileges conferred by an act to incorporate the Pennsylvania Company. In the year 1872, this company built a piece of railroad in Philadelphia, but subsequently sold it to another corporation. Afterwards it increased its capital stock and engaged in the running of a line of steamships between Philadelphia and New York and Antwerp, known as the “ Anchor Line.” Under these circumstances the commonwealth brought an action against the company to recover taxes claimed to be due by it as a transportation company. Defence was made upon the ground that it was a railroad company and therefore exempt from the tax claimed. The decision was to the contrary. The court in construing its charter, said: “Usually corporations are created in order to carry on a single, or at least a principal business or enterprise, and in such case they can readily be classified; but this company has survived from the days of special legislation with an ‘ omnibus ’ charter, under which it can do many things, from operating a railroad or constructing a steamship, to lending money to manufacturers or guaranteeing the notes of a firm. No doubt it can build a railroad, but it may build also ‘ any work or works, public or private, which may tend or be designed to improve, increase, facilitate or develop trade, travel, or the transportation and conveyance of freight, live stock, passengers and any other traffic, by land or water.’ ” Without attempting to analyze the powers granted by the second section of the act of April 7, 1870, it seems reasonably certain that the company is empowered to do for itself, as principal, what it could contract with others to do. It can contract with other parties or corporations existing, or that might thereafter exist, “ to build, maintain or manage in any way that said parties or any of them have authority to do, any work or works, public or private, which may tend or be designed to improve, increase, facilitate or develop trade, travel or the transportation and conveyance of freight, live stock, passengers and any other traffic by land or water, from or to any part of the United States or the territories thereof;..... and also to purchase, erect, construct, maintain or conduct in its own name and for its own benefit, or otherwise, any such work, public or private, as they may by law be authorized to do.” The business in which the Philadelphia Company may engage for itself, may be public or it may be private, or it may be both. It may relate to trade or to travel or to transportation. The subjects of transportation may be freight, live stock, passengers, or any other traffic. The facts found show that the Philadelphia Company in carrying natural gas in pipes is exercising the functions of a transportation company. Natural gas is an article of merchandise and when transported is freight: Columbia Conduit Co. v. Commonwealth, 90 Pa. 808; W. Va. Transp. Co. v. Volcanic Oil and Coal Co., 5 W. Va. 382. The right of eminent domain is, however, in connection with any public work which the company is authorized to conduct. Is the transportation and supply of natural gas a public use ? This is scarcely an open question in Pennsylvania, the legislature having declared it a public use. In the tenth section of the Natural Gas Act of 1885 it is enacted: “The transportation and supply of natural gas for public consumption is hereby declared to be a public use: ” Cooley’s Const. Lim., 528*. If the improvement tends to enlarge the resources, increase the industrial energies and promote the productive power of any considerable number of the community, the use is public: Talbot v. Hudson, 16 Gr. 417. In Johnston’s Appeal, 5 Cent. R. 564, it was contended that the act of 1885 was unconstitutional and void, in that it authorized the taking of private property for a private use, because it violated the constitution in not disclosing in its title the purpose of the legislature to grant to natural gas companies the right of eminent domain, and because the company seeking to exercise, the right was not a corporation for the transportation and supply of natural gas for public consumption, but a mere private corporation for the marketing of its own commodities to and with a limited portion of the public. The decision of the court below was against the land-owner, which was affirmed by the Supreme Court. This case is not only authority, but its reasoning is convincing and satisfactory, and applies as well to the case in hand as to charters granted under the act of May 29, 1885, provided the master is correct in his opinion and finding that the Philadelphia Company is a transportation company within the purview of the act of April 7, 1870, incorporating the Pennsylvania Company and which is made part of its charter. The case expressly decides that the transportation and supply of natural gas to the public, is a public use. It is objected that the grant of eminent domain to the Philadelphia Company is unconstitutional: (1) Because no mention is made of it in the title to the act. This, however, is not necessary and in fact never forms a part of the title of incorporation acts. (2) That no mode of assessing damages is pointed out in the act for the land-owner whose property is taken. It is true that the charter of the defendant company contains no provision authorizing the land-owner to petition the court for the appointment of viewers to assess his damages suffered by the location and construction of the defendant’s pipe lines, but it does comply with the provision of the present constitution relating to the taking and injury of private property by corporations or individuals invested with the right of eminent domain and requiring that just compensation shall be made: Article XVL, § 8. The language is: “Which compensation shall be paid or secured before such taking,” etc. The words of the charter are : “ On making payment therefor or giving security according to law.” In the case of Dimmick v. Brodhead, 75 Pa. 464, Agnew, C. J., reviews the legislation of the commonwealth upon this subject and shows that the 2d section of the act of April 9, 1856, P. L. 288, remedied a defect in the act of 1849 by providing in case of the refusal of the owner to accept the tender, that notice of presenting the bond for filing in court should be. given and making the bond subject to the approval of the Common Pleas. The bond stands as security as well for damages occasioned by the construction as the location of the road: Wadhams v. Railroad Co., 42 Pa. 303. On giving-security the right of way vests in the company: Phil. & R. R. Co. v. Lawrence, 10 Phila. 604; Fries v. Railroad Co., 85 Pa. 73. It is clear from these cases that if the land-owner fails to collect the damages assessed from the company taking the land, he can still bring his action of debt on the bond and recover his damages. If this were not so, in case the company taking the land should lose their title by judicial sale before proceedings to assess damages had been begun, the bond would be worthless. The master therefore is of opinion that the constitutional rights of the plaintiff in this case are protected by the filing and approval of the bond of the Philadelphia Company in an amount adequate in the judgment of the Court of Common Pleas, fully to compensate the plaintiff for damages and with sufficient sureties. It is also objected that natural gas was unknown, or at least it was unused for heating purposes in 1870, and that the legislature must be presumed to have been legislating for things then in existence, and therefore cannot be supposed to have intended to grant the power to take private property for the purpose of laying pipes through it, for the transportation of natural gas. No testimony has been produced on this point and it is not made an issue by the pleadings, but the intent of the legislature must ordinarily be gathered from the words of the statute: Potter’s Dwarris, 184; Commonwealth v. Penn. Ins. Co., 13 Pa. 166; Rich v. Keyser, 54 Pa. 86. To repeat the words of the statute, the company may build “ any work public or private which may tend or be designed, to improve, increase, facilitate or develop trade, travel or the transportation and conveyance of freight, live stock, passengers and any other traffic by land or water.” Natural gas is freight. “Freight is that with which anything is fraught or laden for transportation:” Webster. Transportation by means of pipes is not new. Transporting and supplying natural gas is traffic in a most valuable product of nature. Natural gas is not new. The Philadelphia Company and other companies, firms and individuals have by means of pipes introduced.it into the manufactories and homes of the people. For the foregoing reasons and following the authorities cited, as he understands them, the master finds: 1. That the Philadelphia Company is now, pursuant to a grant of power in its charter, a transportation company engaged in the carriage of natural gas. 2. That the business of transporting and supplying natural gas is a public use. 3. That for the conduct of such business it has the right of eminent domain by the terms of its charter. These findings require that the master recommend that the bill of the plaintiff he dismissed, which is done accordingly. Various exceptions to the report of the master filed by the plaintiff were overruled and on argument the court, Stowe, P. J., adopting the finding of law by the master, dismissed them and entered a decree dismissing the plaintiff’s bill. The plaintiff thereupon took this appeal, assigning said decree as error.
118 Pa. 490Willey v. Allegheny City (1888)
ERROR TO THE COURT OR COMMON PLEAS NO. 1 OR ALLEGHENY COUNTY. No. 53 October Term 1887, Sup. Ct.; court below, No. 311 March Term 1886, C. P. No. 1. To the first Monday of February, 1886, C. L. Willey brought an action in case against the city of Allegheny to recover damages for the loss of two rafts of timber swept away hy the high water of June, 1881. At the trial on December 17, 1886, the facts appeared: One of the rafts, containing timber of the value of about $1,900, lay at the wharf immediately above the railroad bridge, and the other containing timber of the value of about $1,200, lay at the same wharf immediately below the Suspension or Sixth street bridge. The wharf in question was maintained by the defendant, and tolls were charged and collected from the plaintiffs and others who used it. There was evidence that the rise in the river was not an unusual one for that time of the year, in height at least; but there was evidence that it was attended with an unusually swift current explained, as was claimed, by the fact that encroachments upon the river within the limits of the two cities had narrowed the waterway. It appeared that the wharf, shortly before the time of the loss, had been occupied by the Pittsb. & West. R. Co., which had its tracks in operation down along the wharf nearly to Anderson street, occupying that part where the larger raft lay, and was engaged in building a trestle-track immediately below the Suspension bridge where the smaller raft was. By this occupation, the wharf-posts, ring-bolts, etc., which had been available before for tying to, had been removed, the tracks of the railroad being between them and the river. There was testimony from which it was claimed by the defendant that at the time of the loss there was about 20 feet of water and the swiftest current ever known in the' Allegheny river, at least for thirty-five years; that the plaintiff had not used sufficient strength of lines nor availed himself of the hitching places at hand, and had no breast lines out. The court, Stowe P. J., charged the jury: The rule of law is that a city having a wharf or wharves for the accommodation or use of persons navigating streams contiguous to it, is bound to furnish such persons with reasonably safe conveniences and appliances for securing and keeping their vessels, floats, etc., in safety. You must not understand that in such cases cities are to be held as insurers, or liable simply by reason that a loss has occurredbut where a wharf is rented or paid for, as in this case, the city is bound to give him sufficient means of attaching and fastening his boats or floats or rafts or whatever he may have properly moored at the wharf, so that in stress of weather of ordinary character, or such as could be reasonably foreseen or anticipated, or by a rise or flood in the river of a similar character, even though it may be a high rise or flood, provided it was not of an extraordinary character, and not to have been reasonably anticipated. These ideas cover the whole duty of a party in the position that the defendant is. The city must keep the wharf in ordinarily reasonable good condition, good repair. There must be ordinarily reasonable attaching places so as to securely moor and tie any float or raft or anything else that may be moored at the wharf in any ordinary emergency, any ordinary flood, any ordinary stress of weather or flood and storm together, or anything that would be likely to occur that the city had reason to anticipate. It does not involve the city in responsibility for floods that could not have been foreseen; that were of such an unusual character as to be called extraordinary; but, although it may be quite a high flood, if it is one they were bound to anticipate, such as was occurring from time to time substantially, although it might have been a very little or some higher, yet not amounting to an extraordinary emergency, the city is bound to provide the reasonable appliances for parties to attach their floats to that they may protect themselves from loss. Now the great question in this case is, were there sufficient tying places furnished by defendant or remaining on the ground within reach of boats, etc., moored at the wharf; such as could have been safely and properly used by the plaintiff in the emergency which arose at the time of this accident. This involves a consideration of the condition of the wharf at that time. Then if you conclude from the evidence that there were reasonably sufficient hitching places to answer any ordinary or reasonably anticipated floods in the Allegheny river, your verdict should be for defendant. But if you conclude otherwise, then you must consider further whether or not plaintiff did all that was reasonably prudent and proper in making use of the means within his reach to prevent his floats from being carried away by the stress of waters. The whole stress of plaintiff’s case is, that he did not have places to tie to furnished by the city, or that there were not places there at all that he could have reached reasonably by reasonable care and prudence, and that because of that he could, not tie his vessels and they went away. Upon this question you must look at all the evidence tending to show whether posts were there that could have been used that were not used, whether there were proper head lines, whether breast lines were proper and usual in such emergency and would have tended to prevent the float from being carried away, and in short everything done or undone, which in the exercise of reasonable care and prudence under the circumstances, should have been done to guard against the loss on part of plaintiff or those in his employ..... The plaintiff asks me to say to you: 1. The general rule of law is that those who have a public wharf under their control are bound to keep it in good order, and the force of this obligation is still further increased where it yields its possessor a revenue. Answer: This is affirpied; but, the duty in no case, as I said in my general charge, exceeds that which is reasonably proper, necessary and prudent. The proposition, however, is affirmed with the qualification in the general charge.3 2. The defendant, city of Allegheny, being in possession of the wharf at which plaintiff’s rafts were lost, and receiving tolls or wharfage for its use was held to the utmost care of said wharf; and it was a violation of defendant’s duty to the public to permit said wharf to get out of repair or neglect to provide means of fastening for the mooring of rafts and other craft at said wharf; and if the jury believe from the evidence that plaintiff’s loss on or about June 9, 1881, was occasioned in consequence of said neglect of duty on part of defendant city, then their verdict should be for the plaintiff. Answer: Affirmed, with the qualification that “utmost care” must be understood to mean only reasonable and proper care in view of the safe mooring of floats, rafts, etc., under ordinary circumstances and floods which should and could have been anticipated by the exercise of reasonable care and foresight.4 3. If the "jury believe from the evidence that, at the time plaintiff’s loss occurred, the city of Allegheny was the proprietor of a public wharf within its corporate limits on the shore of the Allegheny river, keeping the same for hire and charging and receiving wharfage from the plaintiff for the landing and mooring rafts at said wharf, and that plaintiff’s rafts at said wharf were lost or injured in consequence of the neglect of said defendant city to provide and maintain proper and necessary check-posts or ring-bolts, or other appliances for securing and fastening said rafts of plaintiff when lying at said wharf, after notice, then said defendant is liable in damages and their verdict should be for the plaintiff for the amount of his actual loss. •. Affirmed; and it is a very correct, neat statement of the. liability of the defendant, with this qualification, however: provided plaintiff used reasonable care and prudence to protect his property before and when the emergency arose. 4. If the construction of the road-bed and track of the Pittsburgh & Western Railroad along said wharf removed any of the fastenings previously placed on said wharf for the purpose of securing boats, rafts or other craft moored at said wharf, then it was the duty of the city of Allegheny to replace the same or provide other safe means of securing said, craft. Answer: This is affirmed, provided sufficient fastening places or posts were not left after the removal of that or those taken or cut away. It is not for us to say whether or not sufficient were left. We only say if there were sufficient left. The fact that one was cut away would not make the city liable,, if those left were sufficient. The presumption would seem to be, if they had a certain number there before, which they thought reasonably proper, and one was cut or taken away, that perhaps there was one less than there ought to be. It-does not follow. It is for the jury to say, under the testimony, whether they were there, and if not there whether there were sufficient left to answer the purpose of the parties in this particular transaction. It might be there were not half enough posts on the wharf, as a wharf,- yet if there were enough within reach of the plaintiff to secure his property, and he neglected to use them as he ought to have used them,, exercising reasonable care and prudence in doing what was his duty to do, .he cannot complain that somebody else might have-been put in a dangerous condition, because the wharf itself' was in a bad condition. That fact would not affect his responsibility one way or the other. 5. That if the injury to and loss of plaintiff’s property was caused by the obstructions placed upon said wharf in constructing said railroad, then the defendant is liable to the plaintiff for the same. Answer: Refused. If the loss was occasioned by obstructions arising from the building of the railway alone and sufficient fastening places were afforded by defendant, the plaintiff cannot recover in this suit. 6. That if the dangers to craft moored at said wharf were increased by the construction of said railroad bed and track on said wharf, then the said city defendant was bound to exercise increased care and diligence to guard against dangers and damages arising from that cause. Answer: Affirmed. If the building of this road along there by piling the wharf or putting it in any shape it may have been put into, increased the dangers by throwing, we will say, the fleets further out in the river, made mooring more difficult, the defendant was bound to have seen or foreseen it and to have provided for the increased danger or the emergency occasioned by the building of the road, and .that is apart from whether the road was built with the consent of the city or by the mere act of assembly. It was put there; it was legally there. If it increased the danger and increased danger would make it necessary or prudent to increase the means of protection, the city was bound to provide means of safety accordingly. Defendant’s counsel have asked us to charge you: 1. That the Pittsburgh and Western Railroad Company had a legal right to occupy'the wharf in question for its railroad, and if plaintiff’s loss occurred by reason of the presence of the railroad he cannot recover and the verdict should be for defendant. Answer: Affirmed, if this was the sole cause superinducing the accident. 2. If the jury believe from the evidence that the plaintiff’s loss below the Suspension Bridge was caused by the fact of the presence of the railroad there, thus preventing his rafts from floating in as far as they otherwise would, then he, cannot recover and the verdict should be for defendant. Answer: Affirmed.5 S. If the jury believe from the evidence that that portion of the wharf below the Suspension Bridge was manifestly dangerous by reason of the fact that the Pittsburgh and Western Railroad was being constructed there and the work and the changes on the wharf being in an incomplete condition, then he was bound to avoid the danger, and if he did not do so, but undertook to run the risks and suffered loss, then he cannot recover and the verdict should be for defendant. Answer: That is affirmed, if the plaintiff saw danger and undertook to run his head into it — took no proper means .to guard against it. If the work was in the condition it is alleged to have been in, in an incomplete order, he cannot turn around and blame the city for negligence that lay on his own shoulders. It is true, I have no right to put a trap on my ground, but if you come along, see the trap and run your head in it, and it goes off and catches you, you cannot recover from me, although if you had fallen in accidentally, having a right to be there, you could. That illustrates the idea that point, I presume, is intended to convey.6..... The verdict of the jury was in favor of the defendant. Judgment being entered, the plaintiff took this writ, assigning for error, inter alia: 8, 4. The answers to the plaintiff’s points.3 4 5, 6. The answers to the defendant’s points.5 6
118 Pa. 501Kincade v. Cunningham (1888)Rule for judgment discharged
ERROR TO THE COURT OE COMMON PLEAS OE INDIANA COUNTY. No. 244 October Term 1887, Sup. Ct.; court below, No. 55 September Term 1885, C. P. On June 10, 1885, a scire facias to revive, etc., was issued by “ Annie J. Kincade, now Annie J. Cunningham,” against Wm. Cunningham, upon a judgment for $1,000 entered on March 18, 1883, to No. 124 March Term 1883, upon a note with warrant of attorney of same date and amount, executed by Wm. Cunningham in favor of Annie J. Kincade, payable in five years.. On July S, 1885, an affidavit of defence was filed, which set forth: That the note upon which the judgment in the above stated .case was originally entered was given upon the promise and for the consideration that the said plaintiff would marry affiant, .live with him as his lawful wife, keep house and render services to him as such during their joint lives; and upon said promises being made by the said plaintiff to affiant, before the signing of said note, he, believing them to be in good faith, signed the same. Affiant would further state that after the signing of said note, upon March 18, 1883, they were married and affiant took the plaintiff to his home in Young township, said county, where he had provided such things as were necessary for her comfort. That after said plaintiff had lived with affiant some three or four days she was not satisfied and requested affiant to leave his farm and home and go with her to Blacklick station, where she had formerly lived; that affiant tried to persuade her to remain with him on his farm as she had promised to do, but she would not agree to do so. Affiant then sold off his personal property and moved to Black-lick station, as said plaintiff had requested him to do. Affiant would further state, that after he had lived with said plaintiff at .her home at Blacklick station for about two months, he was compelled to leave by reason of her harsh and unkind treatment. That she would order him out of the house, scold and annoy him, night and day; that she drew the poker at him and threatened to strike him with it, and by reason of said barbarous treatment affiant was forced to withdraw and depart form her place of residence. That affiant afterwards went and requested the plaintiff to come and live with him and fulfill her promises, and she refused to do so. Affiant would further state that he has done all in his power to make plaintiff comfortable and to get along with her and live as man and wife should do, but owing to her conduct, it has been impossible to do so. Affiant would further state, that he has suffered loss of time, and annoyance and damages largely in excess of the amount of said notte in suit, by reason of the failure on the part of the plaintiff to keep the promises and contract made before the signing of said note, and that the same is void and without consideration; and that affiant would not have signed ,said note if he had known that the said plaintiff would not keep said promises made by her before the signing and delivery thereof. On July 6, 1885, the plaintiff obtained a rule- upon the defendant for judgment for want of a sufficient affidavit of defence [act of February 11, 1847, P. L. 85], specifying as the grounds of insufficiency: 1. The allegation in the affidavit of defence that the consideration of the note was that the plaintiff would marry the defendant is in part true ; the only other consideration being that by such marriage plaintiff would forfeit her right to a U. S. pension of $96 and upwards per annum. But if even marriage was the only consideration, the note is in the nature of a marriage settlement, and the facts set forth as to the conduct of the plaintiff are insufficient to prevent a recovery or justify the granting of a divorce. 2. The general allegation that the note was in consideration of marriage and that the plaintiff failed after a time to live with defendant, is an insufficient allegation to prevent judgment from being entered against the defendant. 8. The defendant being, as stated in the affidavit, the husband of the plaintiff, is an incompetent witness to prove the facts stated upon the trial, and there is no averment that he will be able to prove any of the facts set forth by competent and legal evidence upon the trial of cause. On September 6, 1886, the court, White, P. J., filed the following opinion and decree : The plaintiff here alleges that the affidavit of defence is insufficient to prevent judgment. Hence the application for judgment, notwithstanding the affidavit. Were this a scire facias to revive a judgment between strangers, we incline to the opinion the averments of the affidavit, in so far as they recite a breach of the contract about the bond on which the original judgment was entered, would be insufficient. The situation here, however, is peculiar. There is one averment of the affidavit we must consider. It recites, inter alia, that the plaintiff and defendant are and have been husband and wife since March 13, 1883, and were such when the original judgment was entered. It appears that the original judgment was entered on a bond with warrant of attorney given by the defendant to the plaintiff before her marriage to him, and the original judgment was entered directly by the plaintiff, in her own name, without the intervention of a trustee, while she was the wife of the defendant. This scire facias is issued in the same way. The husband, defendant, is resisting judgment on this scire facias. Thus, then, we have before us, or alleged by the affidavit of defence, an adversary proceeding on a judgment by the wife against the husband. Is the condition of things developed by the affidavit sufficient to halt the plaintiff in her demand for judgment ? It raises a peculiar question. It is entirely unnecessary to recite the long array of authorities which establish the principle that at common law no suit will lie between husband and wife. They, husband and wife, are treated as one person. Actions at law require parties to carry them on, and husband and wife cannot, by this common law, be parties, for they are but as one person. Our statutes make certain kinds of actions, or rather certain circumstances, exceptions to this rule. The act of April 11,1856, P. L. 315, allows the wife, through the name of a next friend, under certain circumstances, to sue the husband. Then, again, by the act of June 11,1879, P. L. 126, under the same or similar circumstances, the wife, without using the name of a next friend or trustee, can sue the husband. In these cases, however, where defence is taken, it is necessary for the wife, plaintiff, to affirmatively show the existence of the facts and circumstances indicated by the acts of assembly authorizing the actions. In our reflections, now, about the application before us, we can recall no adversary proceeding by the wife against the husband without the intervention of the name of a trustee or next friend, on any matter of contract, that has been sustained, except in that class of cases authorized by statute. We will not now discuss the reason of this rule. Sufficient to say, it is founded on considerations of public policy. The desire of our law has been to preserve the harmony of the .domestic relations. While it is quite true there are cases in our books, where judgments given by the husband directly to the wife and executions issued thereon have been sustained, yet, in those eases, such process has not been considered adversary, but all proceedings have been voluntarily suffered by the husband. Here we have a contention. The affidavit of defence avers, the wife sues, and the defendant husband resists. This averment of the affidavit we consider sufficient, at this stage of the case, to prevent judgment. What will be the effect of the entry of the original judgment without any application or effort of the defendant to open or destroy, we do not feel required now to decide. This affidavit of defence informs us, for the first time, the parties to the judgment are husband and wife and that adversary proceedings are here pending. We decide here nothing more than that the averments of the defendant, that the parties to this litigation are husband and wife, require us to refuse judgment on. the pending motion. The plaintiff then took this writ assigning said decree as error.
118 Pa. 508Hayman v. Pennsylvania R. (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY. No. 267 January Term 1887, Sup. Ct.; court below, No. 211 March Term 1885, C. P. No. 3. The action below was in case for negligence by Joseph Hay-man against the Pennsylvania Railroad Company. At the trial, on April 8,1886, before Finlettek, P. J., it was shown that the plaintiff and his wife had purchased tickets for a passage from Philadelphia to Burlington, N. J., at the defendant company’s office at the foot of Market street, Philadelphia. On their way from the ticket-window to the ferry, the plaintiff was injured in the manner stated in the syllabus and fully set forth in the opinion. At the close of the plaintiff’s evidence, the court ordered a compulsory nonsuit with leave, etc. Subsequently, on argument, a motion to take off the judgment of nonsuit was refused. Thereupon the plaintiff took this writ, assigning as error the order for the nonsuit and the refusal of plaintiff’s motion.
118 Pa. 512Appeal of Hoffman (1888)
FROMTHE DECREE OE THE COURT OF COMMON PLEAS NO 1 OF PHILADELPHIA COUNTY. No. 6 July Term 1887, Sup. Ct.; court below, No. 454 September Term 1884, C. P. No. 1. The proceeding below was in the distribution before an auditor of the fund realized from the sale of the property and franchises of the Philadelphia and Chester County Railroad Company. The Philadelphia, Delaware and Chester Central Railroad Company was incorporated originally by the act of March 17, 1871, P. L. (1872) 1269, with a capital of $500,000 and the right to build a railroad from Philadelphia to connect with the ‘Pennsylvania Railroad, east of Downingtown station. By the supplementary act of April 9, 1872, P. L. (1873) 1084, the name of the road was changed to the Philadelphia and Chester County Railroad Company. On April 1,1879, the company executed a mortgage for $500,000 to the Guarantee Trust and Safe Deposit Company of Philadelphia, to secure a like amount in bonds bearing seven per cent, interest, and on April 4, 1881, entered into a contract with one George F. Work, to build the road. On Julyl, 1881, a second mortgage for $750,000 was executed to the said trust company to secure a second series of bonds to that amount, at six per cent, interest, with which to retire the former ones. The work of building the road was abandoned in June, 1883. On September 20, 1884, the Guarantee Trust and Safe Deposit Company, at the request of bondholders, filed a bill in equity to No. 454 September Term 1884, C. P. No. 1, to obtain a" decree for the sale of the mortgaged property and franchises, by reason of a default in the payment of interest; thereupon such proceedings were had that the following decree was entered: And now, to wit, February 14,1885, this cause came on to be heard on bill and answer, and counsel appearing as well for the defendant as the plaintiff, and therefore, upon consideration thereof, the court doth now adjudge and decree: That default has been made by the defendants in the payment of the interest on the bonds numbered and specified in paragraph 8, of said bill, for more than a year after demand thereof made ; that holders of the said bonds, to the amount of sixty per centurn of the aggregate thereof, have made request, in writing, upon the said plaintiff, to proceed and execute the power of sale in the mortgage, set forth, in paragraph 7, of said bill. That there has also been default made by the said corporation defendant, in the payment of interest on the bonds secured by the mortgage, set forth in the 10th paragraph of said bill, and that request, in writing, on the plaintiff, has been made by the holders of the said bonds of an amount admitted by the answer of said corporation defendant sufficient to comply with the requirements of said mortgage given to secure said bonds, also, to proceed and execute the power of sale contained in said last mentioned mortgage. ! And it is further ordered, adjudged and decreed, that the said Guarantee Trust and Safe Deposit Company do comply with said request and proceed to make sale of said mortgage premises under the powers of sale contained in each and both of said mortgages; and do expose the same to sale in the city of Philadelphia at such time and place, and by such hands as said plaintiff may select; and that at least four weeks’ notice of said intended sale be previously given at least once in each week in at least two daily newspapers published in each of the cities of Philadelphia and New York; and, also, in one newspaper for the same period published in the counties of Delaware and Chester, and that |2,000 on account of the purchase money, be ¿aid at the time of said sale, and that said advertisement do so state, and that said plaintiff do make return of such sale to this court for its further order and direction thereon. And it is further ordered, adjudged and decreed, that this decree and sale so as aforesaid ordered, shall in no way or manner affect, alter, change, enlarge or impair, the rights of the holders of any of said bonds, but that said rights shall be and remain upon the fund produced by said sale of the same character, to the same extent, and to the same amount as they exist now upon said mortgaged property. In pursuance of said decree, the trustee named therein, on April 8, 1885, made return that it had executed the said order of sale, and that said road had been sold for $40,000, which said return was duly confirmed. The account of the trustee, filed and on September 19, 1885, confirmed, showed a balance of $36,661.25 for distribution. On October 27, 1879, the railroad company had filed its petition to No. 391 September Term 1879, C. P. No. 3, setting out the location of their road with two tracks through the lands of Sellers Hoffman, situate in the 27th ward of Philadelphia, and containing 3^ acres, praying for the appointment of viewers, etc. The viewers on May 26, 1880, filed a report awarding Hoffman $5,351.50, damages, and on May 28, 1880, 1¿he bond of the company to the landowner was filed and approved by the court. On June 12, 1880, Hoffman appealed from the award of the viewers. A rule to have an issue framed was taken on October 17,1883, and made absolute on October 20, 1883, which issue was pending during the proceedings for distribution referred to. Before the auditor, Mr. A. A. Hirst, appointed to distribute said balance, Mr Hoffman presented his claim upon the fund for his land damages, coupled with a motion that the distribution should be suspended until his action against the company should be determined, contending: 1. That the bond filed by the company was inadequate,, insufficient and insecure. 2. That the fund for distribution, being the proceeds of the sale of the road, under no circumstances could be awarded to the creditors of the company until the damages occasioned by the location and construction of the road were liquidated and settled. The auditor, however, ruled : The question, however, appears to have been expressly passed upon by the Supreme Court, in Fries v. The South. Penn. R. and M. Co., 85 Pa. 73. It is there held, that the security being given in due course of law, the grasp of the owner upon his property is loosened by the constitution itself, and, consequently, the easement acquired passes freed from his power to obtain payment, otherwise than upon the bond and the proceeding by assessment of damages given by law. The sureties upon the bond of the railroad company were duly approved according to law. Their approval by the court is final. It was intimated that the sureties were not now solvent. No evidence, however, was produced before your auditor in proof of such assertion, and certainly would not have been relevant if offered. The claim upon the fund by Sellers Hoffman is disallowed. Mr. Hoffman excepted to the report of the auditor: 1. In his disallowance of his claim. 2. In his refusal to suspend the distribution. On March 18, 1887, the court, Allison, P. J., in an oral opinion, dismissed the exceptions and confirmed the report so far as relating to the claim of the exceptant. Thereupon Mr. Hoffman took this appeal with a writ of certiorari thereon, assigning the dismissal of his exceptions and said confirmation of the report as error.
118 Pa. 519Allison Mfg. Co. v. McCormick (1888)
4 OF PHILADELPHIA COUNTY. No. 423 January Term 1887, Sup. Ct.; court below, No. 442 December Term 1884, C. P. No. 4. On November 29,1884, an action in case for negligence was begun by Mary McCormick against the Allison Manufacturing Company.
118 Pa. 529Warren v. Steer (1888)
EBBOE TO THE COURT OE COMMON PLEAS NO. 2 OE PHIL ADEL-PUTA COUNTY. No. 438 January Term 1888, Sup. Ct.; court below, No. 491 September Term 1879, C. P. No. 2. In the court below, on July 23,1884, judgment was entered upon a verdict in favor of Edward J. Steer against Henrietta Warren and David K. Large, guardian of Annie Warren, a minor, in an action of ejectment for the recovery of possession of a lot on Eighteenth street. No claim was made or recovered for mesne profits. The defendants, having entered into a recognizance in the sum of $400, with the usual conditions, purchased a writ of error to No. 166 July Term 1884, Sup. Ct., and on due hearing by this court, on May 17, 1886, the said judgment was affirmed: Warren v. Steer, 112 Pa. 634. Upon the filing of the remittitur in the court below, a writ of habere facias was issued, executed, and possession given to the plaintiff on June 8, 1886. On July 1, 1886, the plaintiff caused to issue a “writ of inquiry of damages accruing to plaintiff herein by reason of the taking of the writ of error to the Supreme Court of Pennsylvania by the defendants herein and the affirmance by that court of the judgment heretofore entered, whereby the plaintiff is entitled to recover among other damages a reasonable return or rental for the real estate, pending the said proceeding in error.” After a rule to set the writ aside was discharged, it was executed and on January 5, 1887, an inquisition, over the hands and seals of the sheriff and twelve jurors, was filed, saying that the plaintiff had sustained “ by means of the premises in said writ mentioned,” damages to the amount of 1287.50. To this inquisition the defendants then filed the following exceptions: 1. Because the defendants have not been served with notice of the issuing and execution of the writ of inquiry. 2. Because the writ of inquiry is not authorized by the law. 8. Because it does not appear how, in what manner or by what means, the jury assessed the damages upon the said writ of inquiry. On the argument of these exceptions, they were dismissed and the court, Hake, P. J., directed judgment to be entered for the plaintiff for the finding on the writ of inquiry, nunc pro tunc, as of February 19, 1887. Judgment being entered, the defendant took this writ, assigning that the court erred in dismissing the exceptions and directing judgment to be entered upon the return to the writ.
118 Pa. 535Michener v. City of Philadelphia (1888)
ERROR. TO THE COURT ON COMMON PLEAS NO. 2 ON PHILADELPHIA COUNTY. No. 101 July Term 1887, Sup. Ct.; court below, No. 120 June Term 1886, C. P. No. 2. The proceeding below was a scire facias sur municipal claim filed on July 28, 1886, for the construction of a sewer on Oxford street, by the city of Philadelphia, to use of W. A. Hendel, the contractor, against John H. Michener, as the owner of a lot fronting fifty feet on Broad street and extending back of even width along Oxford street, two hundred feet to Carlisle street. To this scire facias on October 22, 1886, the defendant filed an affidavit of defence averring: That the defendant had owned the lot of ground for over twenty years, and that the lot was unimproved; that when he bought it in 1865, a public sewer ran through it, which was constructed and paid for in the ordinary way; that subsequently said sewer was closed by. official action and in 1877 another public sewer was constructed along the Broad street front of the lot, for which the defendant was assessed and paid his proportionate part; that in 1885 another sewer was constructed along the Carlisle street front of the lot, for which also the defendant was assessed and paid his proportionate part. The affidavit further averred, that the sewers constructed in 1877 and 1885, were good, and of proper size, and in every-way adequate for the present and future needs of his property; that the only available building fronts of his lot were the Broad and Carlisle street ends; that the sewer in controversy did not enhance the value of his property, but was a positive detriment thereto; that he had received no notice of the proposed construction of this sewer, and did not know of it until the bill was presented for payment; that the sewer was not needed for the surface drainage of Oxford street from Broad to Carlisle street, but was for general public benefit in connection with other sewers; and that the construction of the same was neither a private benefit to him or his property, nor a matter of public necessity for Oxford street; and concluded as follows: I am instructed and aver that under the circumstances of this case, the ordinance of councils authorizing the construction of this sewer, and the acts of assembly under which said ordinance was passed, in so far as the same attempt to make the building of such sewer and the cost thereof a claim against my property, and a claim against me, are unconstitutional and. in conflict with article IX., section 1, of the constitution of this commonwealth. The ordinance of councils referred to, and the acts of assembly under which the same was passed, in so far as they relate to this matter, are as follows: Ordinance of November 11,1885, §§ 1 and 2; of May 12,1866, §§ 1 and 2, and of February 16,1869; act of April 8, 1864, P. L. 324, § 1; act of March 27, 1865, § 1, P. L. 791 [which ordinances and acts were quoted]. A rule for judgment for want of a sufficient affidavit of defence was made absolute by the court, Hare, P. J., without opinion filed, on April 30, 1887. Thereupon the defendant took this writ assigning said order as error.
118 Pa. 541City of Philadelphia v. Coulston (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 4 OE PUTT. A - DELPHIA COUNTY. No. 105 January Term 1887, Sup. Ct.; court below, No. 3 M. L. D. September Term 1876, C. P. No. 4. The cause originally was a scire facias sur a municipal claim for paving, filed by the city of Philadelphia, to the use of McManus & O’Rourke, against J. C. Coulston, as the owner of a lot in the Twenty-fifth ward. The claim, for fl,065.75, was filed October 10, 1876. On September 16, 1881, a writ of scire facias thereon was issued, and an affidavit of defence was filed on October 21st. On November 26, 1881, a rule for judgment for want of a sufficient affidavit of defence was discharged. On June 5, 1885, on praecipe of the plaintiff’s attorney, a judgment of revival of the lien of said claim was entered, in accordance with the provisions of the act of June 27, 1883, P. L. 161. A rule upon the defendant to plead was filed on August 12, 1885, and on September 28th, on proof of service, judgment was entered for want-of a plea, and liquidated at $1,670.52. On the next day, a plea was filed by the defendant with a rule to reply, and the same day the plaintiff filed a replication. On January 21, 1886, an agreement was filed that no continuance at the instance of the defendant should be allowed. On April 5, 1886, a jury was called and a verdict rendered for the defendant. On June 11, 1886, a rule for a new trial was made absolute. On September 21, 1886, on motion of the defendant, a rule was granted to show cause why the judgment for want of a plea, entered on September 28, 1885, should not be stricken off, for the reasons following: 1. Because the plaintiff accepted from the defendant a plea filed on September 29, 1885. 2. Because the plaintiff replied to said plea on September 29, . 1885. 3. Because the plaintiff joined issue with the defendant on the aforesaid plea and replication, and on an additional plea, filed April 5, 1886, went to trial before a jury impaneled on the same day. This rule was made absolute on September 25th, and on the same day a rule was granted to show cause why the judgment of revival under the act of June 27, 1883, entered June 5, 1885, should not be stricken off, which rule was made absolute on October 9th. The additional plea filed by the defendant set up the expiration of the lien of the claim, and at the trial on November 8, 1886, the jury under the direction of the court returned a verdict for the defendant. Judgment being entered, the plaintiff took this writ, assigning that the court erred, inter alia, in striking off the judgment entered on September 28, 1885, for want of a plea. On February 7, 1887, this court affirmed the judgment of the court below upon another specification of error, raised on the ground that the said act of June 27, 1883, was unconstitur tional. The cause is reported, with others of like nature heard together, in 115 Pa. 291. On February 14, 1887, on petition of the plaintiff, a re-argument was ordered upon the question of the power of the Court of Common Pleas to strike off a judgment regular on its face, under the circumstances of this case.
118 Pa. 546Page v. Middleton (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 408 January Term 1887, Sup. Ct.; court below, No. 824 December Term 1884, C. P. No. 2. The case below was an action of replevin brought on January-22, 1885, by Harlan Page against George W. Middleton and Wm. H. Branson (bailiff) for a corundum wheel and knife grinder distrained by Middleton as landlord for rent in arrear from his tenants, Bonta & Fredericks, and claimed to be the property of the plaintiff. At the trial of the issue formed, on November 8, 1886, before Mitchell, J., evidence was adduced for the purpose of sustaining the plaintiff’s contention that the. machine had been consigned by him to one T. S. Quay in the planing and saw-mill business, on certain terms; that Quay had afterwards sold his business to Bonta & Fredericks and stored the machine with one Officer, occupying the third story of the same building, who received it as an accommodation to Quay, without pay. The facts appear fully in the opinion of the court. At the close of the evidence, the court, without a written opinion, instructed the jury to find for the defendants. A verdict for the defendants having been returned and judgment entered, the plaintiff took this writ assigning that the court erred in the peremptory instructions to the jury.
118 Pa. 550Smaltz v. J. B. Hancock & Co. (1888)
ERROR TO THE COURT OF COMMON FLEAS NO. 4 OF PHILADELPHIA COUNTY. No. 422 January Term 1887, Sup. Ct.; court below, No. 290 December Term 1876, C. P. No. 4. On December 2, 1876, Joseph B. Hancock and Miles King, trading as J. B. Hancock & Co., brought assumpsit against Samuel T. Smaltz, declaring: That, before the making of the promise and undertaking of the defendant hereinafter mentioned, a certain action was about to be instituted by the plaintiffs against the defendant, that he keep with them a certain covenant whereby the defendant became responsible for the faithful performance of certain articles of agreement on the part of one Joseph M. Price; said articles of agreement being made between the plaintiffs on the one part, and the said Joseph M. Price of the other part, and dated July 5, 1872, by the terms whereof the said Joseph M. Price, in consideration of the laying of the bricks of ten houses, in said agreement more particularly described, agreed with the plaintiffs to pay them six dollars for the laying of each thousand of bricks; and it was further agreed that the laying of said bricks was to be paid for by the said Price as follows, to-wit: first, two thirds in cash ■ as the work progressed and became due; second, by the conveyance ■of a certain property on Cambridge street, the thirtieth house east of Margaret street, in the twenty-third ward of the city of Philadelphia, for the price or sum of seven hundred dollars,, subject to a mortgage debt of nine hundred dollars upon said property, and the balance of said one third in good trade, That said Joseph M. Price failed to convey the said house, but, with intent to defraud and deceive the plaintiffs in this respect, and with knowledge of the defendant, conveyed another house on said street, representing and leading the plaintiffs to believe that it was the house mentioned and described in said agreement; that the plaintiffs when they found the deception and fraud which had been perpetrated upon them, which they did soon after the conveyance had been made, and while going with said Smaltz, the defendant, to look at the house' conveyed, then and there refused to accept the said house as conveyed by the said Price. Whereupon the said Smaltz stated that a different disposition had been made of the house described in said agreement and he then and there, to-wit: on or about December 10, 1872, specially promised and undertook, in consideration of the premises, and that the plaintiffs, at the special instance and request of the defendant, would forbear from commencing, or instituting, or prosecuting the said action against him, he would within a reasonable time pay to the plaintiffs the sum of one thousand dollars. And the plaintiffs, confiding in the said promise and undertaking of the defendant, forbore to commence or institute and prosecute said action; yet the defendant, not regarding, etc. The declaration contained also the common counts. The house described in the agreement referred to, the thirtieth on Cambridge street, as a matter of fact had previously been conveyed to some one else. When the mistake was discovered, Smaltz and Hancock visited the row of houses to select another and, as was alleged by Smaltz, but denied by Hancock, the latter agreed that the plaintiffs would accept a deed for the thirty-second house, which deed was made to Miles King, the other partner, under date of December 2,1872, the conveyance being subject to a certain mortgage. The acceptance of this deed as the house-payment on the articles was denied by the plaintiffs. A plea having been entered, on February 3, 1880, an additional count to the narr. was filed, setting out in full the articles of agreement with Joseph M. Price, “which indenture, sealed with the seal of the said defendant, the plaintiffs now bring here into court,” and averring that the defendant covenanted to become responsible for the faithful performance of said agreement on the part of said Price, etc., etc., laying the damage to which the plaintiffs were entitled at $2,000. At a trial of the issue on May 17, 1880, the jury rendered a verdict for the plaintiffs for $700, conditioned that the house conveyed to them be re-conveyed. On October 21,1880, a rule for a new trial was discharged, and an order made amending the verdict to conform with the pleadings. On May 1, 1886, the plaintiffs paid the jury fee, had judgment entered and issued a fieri facias. A rule to set the fieri facias aside and to stay the proceedings was made absolute on May 22, 1886. At this time or soon afterwards it was made to appear that prior to the beginning of the suit, Miles King, to whom the thirty-second house on Cambridge street had been conveyed on December 2,1872, had refused to pay the interest upon a. mortgage against it, the property had been sold by the sheriff upon a judgment thereon, and on July 17, 1886, a rule to set aside the verdict of May 17, 1880, resulted in the following order: Whereas the verdict in this case (see minute book C. P. No. 4, 1880, page 429) was ordered to be amended as follows: verdict for plaintiff, $700, on the condition that the plaintiff re-convey to the defendant lot of ground and house thereon situate on the southeast side of Cambridge street, the 80th house and lot east of Margaret street in the 23d ward of the city of Philadelphia, subject only to a mortgage of $900, and the execution be stayed until the condition is complied with, and the rule for a new trial discharged. On May 1, 1886, afieri facias was issued, based upon the above verdict, whereupon a rule was taken by the defendant to set the same aside, which rule was made returnable Saturday, May 15, 1886. Upon the hearing of said rule on May 22,1886, it appearing to the court, by admission of the counsel for plaintiff and defendant, that the said verdict was impossible of enforcement by reason of' the sale of said 30th lot by the sheriff before verdict, the said ride was made absolute. Now, to wit: July 17, 1886, in pursuance of the foregoing,, the court order and decree, that the verdict in the above case, and the judgment entered thereon, be set aside, and that a new trial be granted.1 On November 16,1886, tbe defendant demurred to the additional count, specifying a misjoinder of the count in covenant with the counts in assumpsit. On argument, the court granted leave to the plaintiffs to withdraw the counts in assumpsit and overruled the demurrer.2 On November 22,1886, the defendant pleaded “covenants performed ” to the additional count aud the same day moved for an order on the plaintiffs to pay the costs then accrued, which motion was refused.4 At the trial on February 16,1887, before Arnold, J. evidence was introduced on the one side and on the other with respect to the acceptance of the conveyance of December 2,1872, for the thirty-second house instead of the thirtieth, a receipt therefor appearing indorsed of that date upon the articles; and, at the close of the testimony, the defendant requested the court to charge: 1. Even if the plaintiffs did not accept the house conveyed, they were bound to demand a conveyance of the right house from Price, within a reasonable time, and at the same time offer to reconvey the house which had been conveyed to them; and if they did not do this, the verdict should be for the defendant. Answer: Refused in those terms. If they did not accept it, they would not be bound by a conveyance to them without their consent.5 2. The plaintiffs having receipted on December 2, 1872, for the house conveyed on that day to Miles King, as in full performance of the covenant to convey, they cannot, by their own uncorroborated oaths, set aside their own writing; and there being no corroboration of their testimony, the verdict should be for the defendant. Answer: Refused. The question is, did the plaintiffs get the house the writing called for; or, if not, did they accept another in lieu thereof?6 3. Under all the testimony in this case, the verdict should be for defendant. Answer: Refused.7 Under the instructions of the court submitting the question of fact referred to the jury, a verdict was rendered for the plaintiffs for $1,288. Judgment being entered, the defendant took this writ, assigning for error: 1. The order of July 17, 1886, setting aside the verdict of May 17, 1880, and the judgment entered thereon on payment of the jury fee, May 1, 1886.1 2, 3. The order allowing the withdrawal of the counts in assumpsit and overruling the defendant’s demurrer.8 4. The refusal of the motion for an order upon the plaintiffs to pay the costs accrued.4 5-7. The answers to the defendant’s points.510 7
118 Pa. 559Gould & Co. v. Gage, Hitchcock & Co. (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY. . . No. 189 July Term 1887, Sup. Ct.; court below, No. 338 June Term 1887, C. P. No. 4. On June 4, 1887, a summons in trespass on the case was issued in an action by C. W. Gage, C. Hitchcock and A. S. Gage, trading as Gage, Hitchcock & Co., against John H. Gould, trading as Gould & Co., returnable to June 6th, the ■first Monday of June. On June 11th, the plaintiffs filed a paper, unverified by affidavit, which, after the caption, was as follows: The plaintiffs in the above case file the following, a copy of the promissory note upon which their suit is brought: $663.50 Philadelphia, March 24, 1887. Two months after date, we promise to pay to the order of ■Gage, Hitchcock & Co., six hundred and sixty-three ^ dollars, at office and factory, 305 to 311 South Second street, without defalcation, for value received. Gould & Co. On June 15, 1887, a notice was served by the direction of ■the plaintiffs’ attorney upon the attorney of the defendant, fhat, “ having filed a copy of the promissory note, I shall apply for judgment for want of an affidavit of defence, in accordance with the usual practice, on June 25, at 11 o’clock A. M. If, at such time, the court refuse to grant judgment, I shall apply for the same in the office of the prothonotary, on June 29, at 9 o’clock A. M., treating the said copy filed as a •statement under the provisions of the act of assembly of May 25,1887, P. L. 271.” On June 18,1887, the defendant filed an affidavit- setting forth : That .he had not been served with a statement of plaintiffs’ demand, according to the act of assembly in such ■case made and provided, approved May 25, 1887 ; and further, that he was advised and believed that this suit was not brought in assumpsit, although founded upon a promissory note, and ■further, that he had a just, true and legal defence to part of the plaintiffs’ claim, but that he is advised by counsel that it is not necessary to refer to the same, since the suit instituted is. defective and brought without warrant at law. All of which he believes to be true and expects to be able to prove. On June 28, 1887, on proof of service of the notice above mentioned upon the defendant’s attorney, a rule to amend the form of action from case to assumpsit was granted, which was made absolute on July 2d, and on the same day a rule was granted upon the defendant to show cause why judgment should not be entered for want of a sufficient affidavit of defence, a supplemental affidavit of defence to be filed on or before July 9th. On July 8,1887, the defendant -filed a supplemental affidavit of defence which averred : This suit is founded on a promissory note given for extension tables which this affiant purchased from said plaintiffs, upon the warranty that they would be of the same kind and quality as a previous lot sold and delivered by the said plaintiffs to this affiant. On the faith and credit, however, of said warranty this affiant gave the promissory note in suit, but on examination of said tables they proved to be defective, and different entirely in quality, material and finish from the previous goods which these were warranted to be similar to. That the said goods proved unsalable by reason of said defect in quality and indifferent finish, and wholly unfit for defendant’s trade, and are not worth to this defendant one half of the price charged by plaintiffs for the same. All of which deponent believes to be true, and expects to be able to prove at the trial of the cause. On July 9, 1887, the court, Arnold and Willson, JJ., made the rule for judgment absolute. On the same day, judgment was entered for 1667.91 and a writ of fieri facias issued, which writ was superseded by the taking of this writ by the defendant, who assigned that the court below erred: 1. In awarding judgment for want of a -sufficient affidavit of defence. 2. In awarding judgment for the full amount of the note, the affidavit of defence being sufficient on the merits. 3. In awarding judgment for want of an affidavit of defence, the plaintiffs below not having complied with the provisions of the statute in such case made and provided, by filing .a proper statement of claim, and serving a copy thereof fifteen days after the amendment of the action, or at any other time.
118 Pa. 565Hart v. United States Trust Co. (1888)
3 OE PHILADELPHIA COUNTY. No. 18 July Term 1887, Sup. Ct.; court below, No. 477 December Term, 1886, C. P. No. 8. On December 4, 1886, an action was brought by the United States Trust Company, of New York, against William R. Hart, to recover upon two notes, the copies of which filed were: $3,417.29 Philadelphia, June 24,1886. Five months after date I promise to pay to the order of Martin Kalbfleisch’s Sons thirty-four hundred and seventeen .29 dollars.
118 Pa. 571Patterson v. Lennig (1888)
APPEAL FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY. No. 58 July Term 1887, Sup. Ct.; court below, No. 465 March Term 1884, C. P. No. 4 in equity. The proceeding in the court below was by a bill in equity filed on May 9, 1884, by Cunningham S. Patterson, Richard Penistan and Henry R. Heyl against Charles Lennig. Soon after the filing of the bill, there was an amendment by way of striking out the name of Henry R. Heyl as a party complainant. At a subsequent date other parties were added as complainants. The bill averred: That in the year 1875 the plaintiffs, together with a number of other persons, were stockholders in The American Paper Box Machine Co.; that the said company being in financial difficulty, the plaintiffs with the other stockholders, entered into an agreement to contribute each a proportionate number of his shares to a trust fund of one thousand shares, to be placed in the hands of a trustee to be used for the liquidation of the company’s present indebtedness, and any surplus remaining after the said debt was removed to be returned pro rata to the persons so contributing the same; that the plaintiffs and many other stockholders did, in accordance with this agreement, contribute their respective proportion of shares to this trust fund, which fund was placed in the hands of the defendant, Charles Lennig, as trustee of the fund; that the said Lennig had proceeded to execute the trust, and paid some of the debts of the corporation with the trust stock; that meanwhile the old corporation was reorganized under the name of The Novelty Paper Box Co., and the shares in question were transformed into shares of The Novelty Paper Box Co.; that since January, 1875, the defendant had held 984 shares of the said stock in trust, had paid certain debts out of the trust fund of stock, and had collected dividends, but although requested to do so had never given the complainants any account of his trusteeship; that the plaintiffs were desirous to pay in money whatever sums might be still payable out of the trust stock in the hands of the defendant, and to withdraw the stock from his control; that so far as they were informed the only money still due out of the trust fund of stock was owing to the defendant himself, who was claiming to hold the trust stock as his own private property, free of all trusts. The prayers of the bill were that the defendant be ordered to make a full account of his trusteeship; to surrender such shares held in trust, as might by the account when taken be found to belong to the plaintiffs, on such terms as may seem just and equitable; and further relief. The answer admitted that the defendant received certain shares of stock substantially as alleged in the hill, but denied that the defendant acted as trustee for the holders thereof excepting for the payment of debts of the corporation; that only 837, not 984, shares were received; that the plaintiffs contributed a less number of shares than was alleged in their bill; denied that no account had been rendered when requested, and finally set np as a defence that all the stock not paid out to other creditors of the corporation had been transferred to the defendant in payment of his claim at a higher figure than had ever been paid for the stock, and after offering the stock freely without finding any purchasers ; that full authority was given to the defendant to sell the stock to himself; that he was chosen to hold the stock because he was the largest creditor, and that the transfer or sale by which he took the stock in payment of his claim was made openly in 1879, without deception, and with the full knowledge and consent of all the parties in interest. The cause being put at issue,' Mr. Matthew Dittmann was appointed examiner and master, who made a report on December 16, 1886, finding the following facts: In January, 1875, The American Paper Box Machine Co. was insolvent, owing from $27,000 to $34,000, most of which was due to its own stockholders; about $19,000 being due to Charles Lennig, the defendant, who was at that time president of the company. On January 16, 1875, in order to rescue the corporation from its embarrassments, a meeting of the stockholders was held, at which it was agreed that each stockholder should surrender one half of his stock “for the following purposes, viz.: 1500 shares of the same so contributed are to be placed in th« company’s hands to be used to provide working capital, and 1000 shares to be placed in the hands of a trustee to be used for the liquidation of the company’s present indebtedness, and any surplus of the latter remaining after the said debt is removed to be returned pro rata to the persons so contributing the same. This agreement is not obligatory unless 2450 shares are so subscribed and contributed.” The agreement was put in writing as quoted above and was signed by the plaintiffs and the defendant, who each and all contributed the amount of stock called for by the agreement with one exception. Mr. Lennig was chosen trustee, and received the stock contributed, registering it on the books of the company in his name as trustee, except the 177 shares which were due from himself; these he did not formally transfer from his individual name, but always considered them as forming part of the trust fund. The chief creditors to be paid out of the fund were: 1. Mr. Charles Lennig, the defendant, about $19,000 2. Mr. Heyl, a stockholder, .... 4,600 3. Mr. Simpson, a stockholder, . . . 2,085 4. Mr. Patterson, stockholder, a disputed claim, 7,550 The defendant’s account of the matter is: “ To the best of my recollection, Mr. Patterson, very absurdly as I thought, wished me, or rather insisted and advocated, that the creditors should take that stock at $50 per share, when the company was offering to sell the stock at $40 per share, and I therefore declined the proposition.” Again in letter of May 13,' 1875, the defendant wrote .to Mr. Patterson, one of the plaintiffs : “Ata meeting of the stockholders, Mr. Heyl suggested that each of the company’s creditors take sufficient of this stock at $25 [evidently a slip of the pen for $50] per share and thus close that item; to this' for my part I objected, but in lieu proposed that a trustee be appointed to hold the stock for a reasonable time to see if the development of the business would bring up its value when the same could probably be placed to better advantage, as I had no desire to advantage myself at cost of any of the contributors, while desirous of holding all the security possible; as, in case of the eventual liquidation of the company, if any assets were left, of course the share falling to this trust stock would go to the creditors in so far as not in excess of their claims, and it is in this point where your assumption fails entirely; as to the creditors agreeing to take stock at par for their claim such was néver for one moment entertained nor proposed.” The evidence of the plaintiffs was to a like effect, differing somewhat in unessential details. Soon after this agreement was made and the stock placed in Mr. Lennig’s hands, Mr. Heyl was paid his debt by the transfer to him out of the trust fund of 100 shares of stock. Mr. Patterson undertook to pay himself his disputed claim of $7,550, in stock at par, 151 shares. He owed to the trust. fund, as bis pro rata contribution, 264 shares, but he only paid 118 shares, claiming the right to retain the remaining 151 shares on account of his claim. There was a hot dispute between himself and the trustee on this point, the trustee demanding his full quota in letters of May 13, 19, and June 11,1875. In these letters he criticises the action of the board of directors which had recognized the claim as valid against the company, and ordered it to be paid out of the trust fund of stock. But according to the answer, and his testimony, the trustee finally conceded the point at the request of some of the contributors, much against his- own judgment. At a later date, in September, 1875, Mr. Simpson was paid his debt by the transfer of sixty-three shares out of the trust fund. This payment was made by the defendant to Mr. Simpson with the knowledge and permission of the contributors at #33 per share. Mr. Lennig says he has no recollection of reporting this payment to a meeting of the contributors to the trust fund, but that he may have done so. Mr. Heyl says positively that the trustee was authorized to pay Simpson in stock at #33 per share at a meeting of the contributors on September 23, 1875, held in ■ Mr. Patterson’s office on Third street. A memorandum was also in evidence to a like effect. Thus after September, 1875, there was but one creditor left who had a claim to be paid out of the trust fund of stock in the trustee’s hands, and that creditor was the trustee himself, Mr. Lennig. How it happened that he paid or allowed to be paid all the other debts as already detailed, but did not pay his own of #19,000, which was the largest of all, does not appear entirely clear from the- testimony. This much is certain, he was not willing to accept the stock at #50 per share for his debt, which would have given him at once about 380 shares of the trust fund and would have left to be returned to the contributors something like 194 shares in the trustee’s hands. But, having refused to pay himself in this way, for some reason known to himself, he preferred to leave his own debt unpaid and to keep in his hands as trustee the 574 shares out of which he was entitled to pay it. His explanation of this part of the transaction is, to quote his own language: “ I thought it was due (to certain persons) that I stated, if within a reasonable period, by the success of the company, the stock would attain a higher value (the shares placed in my hands) than. they would owe me, with interest accumulating, that I would be willing to return any excess pro rata to them.” These transactions took place in 1875, and in October, 1879, the trustee, without any notice to the contributors of the trust fund, transferred all the 574 shares remaining in the trust fund into his individual name and canceled his claim of $19,000, which by this time had increased with interest to $24,539.11. In his own words : “ On October 29, 1879, I credited the company with my claim, by assuming or transferring to myself 574 shares of that stock for the sum of $24,539.11, being equal to $42.71 per share.” He had previously offered the trust stock for sale privately at prices lower than he himself took it for his own debt, but found no purchasers. There had been sales of stock of the company at low prices varying from $2.75 per share to $25, during the years 1877-81. No dividends were paid on the stock from January 16, 1875, until June 14, 1880. ■On that day $5 per share was paid on account of a reduction of capital stock, and a stock dividend of 15J per cent, was made. Since then dividends have been regularly paid every six months, varying in amount from $1.25 to $3 per share, and on June 2, 1883, $15 per share was paid, in further reduction of the capital stock. On February 8, 1875, The American Paper Box Machine Company changed its name to that of The Novelty Paper Box Company. The plaintiffs were never at any time notified by the trustee, Mr. Lennig, of the transfer of the trust stock to himself in 1879. Nor was there any evidence in the case to show that they had any knowledge of it, with the exception of Heyl and Patterson, before this suit was brought. Heyl and Patterson learned of it by chance from third persons, it did not appear exactly when. A receipt was also in evidence signed by Heyl, one of the plaintiffs, for thirty-one shares of stock in full satisfaction of all money claims or right of any sort whatever against Charles Lennig. This was dated May 24, 1881. It was given by him in conjunction with one William Lyndall, assignee, in the course of settlement of some loans made during five or six years by Mr. Lennig to Heyl on certain shares of stock as collateral, the thirty-one shares being the residue of the collateral left in Mr. Lennig’s hands after payment of the loans. This receipt was the final settlement of the whole transaction. On April 29,1884, plaintiffs’ counsel, by letter of that date, demanded an account of the trustee defendant, and almost immediately thereafter filed the bill in this cause. Upon the foregoing facts, the master held that Mr. Lennig, the defendant, received from the plaintiffs the several hundred shares of stock of the company in trust to pay the debts of the company, his own among the rest, and to return the balance of the stock if any to the plaintiffs; that having soon afterwards paid all the debts except the debt due to himself of about $19,000, the transfer to himself on October 29, 1879, of the balance at $42.71 per share, in payment of his debt, now amounting with interest to $24,599.11, was in legal terms a purchase by the trustee at private sale of the trust stock; that to state such a transaction was to condemn it: 1 Wh. & T. L. C. in Eq., 239; Grim’s App., 105 Pa. 375 ; that the defendant was not, as a trustee to pay debts, with authority to pay his own debt among the rest, as was claimed under the authority of Campbell v. Penn. Life Ins. Co., 2 Wh. 53, which was to be distinguished, as in that case there was a public judicial sale, an acknowledged exception to the rule. He further held that there was no estoppel of the plaintiffs by acquiescence; that the burden was upon the defendant by distinct and explicit evidence to bring home to the plaintiffs the knowledge of the facts on which the alleged acquiescence was founded: Hill, Trustees, 169*; that there was no evidence to show that the trustee had been misled to his injury by the failure of the plaintiffs to act more promptly, which distinguished the case from Watts’s App., 78 Pa. 370, and Ashhurst’s App., 60 Pa. 290. The report then concluded: I hold, therefore, that this transfer or sale of trust stock by the trustee to himself, in 1879, was inoperative and void to divest the interest of the cestuis que trustent, the plaintiffs therein, because transgressive of the rule that a trustee cannot on any terms purchase the trust property ; and further, I hold that there was no authority expressly given or implied for the trustee to pay his own debt in this secret way without notifying the cestuis que trustent; and lastly, that the plaintiffs never had, so far as appeared in the evidence, any knowledge whatever of the transactions upon which to base an acquiescence, except in the ease of Heyl and Patterson (and in their case the information was too vague and imperfect), which would estop them from now avoiding the transaction. It follows, therefore, that the prayer of the bill should be granted, and the defendant be ordered to make an account to the plaintiffs of his trusteeship. The master recommended a decree, in accordance with his report, that the defendant forthwith account before the master to the plaintiffs for all the stock of The Novelty Paper Box Company or of The American Paper Box Machine Company, received by him from the plaintiffs, in trust to pay the debts of the said The American Paper Box Machine Company, and that the costs of the cause be paid by the defendant. With the master’s report, certain exceptions by the defendant, overruled by the master, were also filed, which exceptions, on April 27,1887, were disposed of by the court, Thayer, P. J., delivering the opinion: In January, 1875, The American Paper Box Company was insolvent. To rescue the company from its embarrassments a meeting of the stockholders was held, at which it was agreed that each stockholder should surrender one half of his stock “ for the following purposes, viz.: Fifteen hundred shares so contributed are to be placed in the company’s hands, to be resold, to provide working capital for future business, and one thousand shares to be placed in the hands of a trustee, to be used for the liquidation of the company’s present indebtedness; any surplus of these one thousand shares remaining after the said debts are removed shall be returned pro rata to the persons contributing the same.” This meeting was held January 16, 1875. The object which the stockholders had in view was to raise money to carry on the company’s operations by the sale of the fifteen hundred shares. It was not supposed that this could be accomplished unless they were able to announce that the company was out of debt. To pay the debts they therefore agreed to appropriate the additional one thousand shares. The defendant, Mr. Lennig, who was the president of the company and the largest creditor, was appointed the trustee to pay the debts with the one thousand shares surrendered for that purpose. There were but four creditors, and they were all stockholders, viz.'; Mr. Lennig, to whom they owed $19,000; Mr. Heyl, to whom they owed $4,600 ; Mr. Simpson, to whom they owed $2,085, and Mr. Patterson, who had a disputed claim against the company for $7,550. Of the one thousand shares agreed to be contributed to pay off the debts, in point of fact only seven hundred and eighty-three shares were contributed and passed into the hands of Mr. Lennig. Of these he contributed one hundred and seventy-seven himself. Four days after this, viz.: January 20, 1875, the company offered for sale twelve hundred and fifty of the fifteen hundred shares contributed for that purpose, at forty dollars a share, announcing that “ the stockholders guaranteed that the said company is free from debts of every kind.” They perfectly well understood that they could not get new subscribers to come into the company until it was relieved of its debts. The stock placed in Mr. Lennig’s hands “to be used for the liquidation of the company’s indebtedness ” appears to have been applied by him to that purpose in pursuance of the expressed object for which he received it. Mr. Heyl, of his own motion, agreed to cancel the debt due to himself in consideration of the receipt of one hundred shares. Mr. Simpson accepted sixty-three shares in discharge of the indebtedness of the company to him, being at the rate of thirty-three dollars per share. Mr. Patterson undertook to pay himself by retaining, against the trustee’s wishes, one hundred and fifty-one shares out of the two hundred and sixty-four which he had bound himself to contribute. The only creditor remaining unpaid was Mr. Lennig, the trustee. The stock had no marketable value at the time it Was deposited in his hands for the payment of the debts. It could not be sold at any price. Two years later it was sold for two dollars and seventy-five cents a share, par being fifty dollars. Four years later, namely, in April, 1879, it was sold for seven dollars per share. On November 10,1879, Patterson, the complainant, sold one hundred and eighty-eight shares at fifteen dollars and ninety-six cents per share. As late as 1881, Patterson sold four hundred and thirty-two shares at twenty-five dollars per share. Between 1875 and 1881 the price ranged from two dollars and seventy-five cents to twenty-five dollars a share. Mr. Lennig held the stock for more than four years without paying with it the debt which was justly due to himself. During that period it was repeatedly offered to the directors by Mr. Lennig at from thirty to thirty-three dollars per share, but could find no takers. He frequently offered it to other persons but could find no buyers. On October 29, 1879, all the other creditors having been long since paid, Mr. Lennig, to close the matter up, transferred the residue of the stock, five hundred and seventy-four shares, to himself in payment of his debt, which then amounted, with the accumulated interest, to $24,589.11, which was at the rate of forty-two dollars and seventy-one cents per share. He had paid the other creditors with stock by virtue of the authority which he had to do so, and he now paid himself in the same manner. The master says, “ for some reason known to himself he preferred to leave his own debt unpaid and keep in his hands as trustee the five hundred and seventy-four shares out of which he was entitled to pay it.” The reason why Mr. Lennig waited so long before paying his own debt with the stock which he held for that purpose, is quite apparent from the evidence. He waited to see if within a reasonable period, by the success of the company, the stock might not attain a higher value and become worth more than the amount of his debt, his declared intention being in that event to return any surplus which might remain to the contributors. It was to carry out in good faith this purpose that Mr. Lennig continued to hold the stock as trustee, hoping that the business of the company would so improve as to cause a rise in the stock, which, when he received it, had no marketable value whatever. This course, so far from being a proper subject of animadversion, was highly commendable, and was plainly for the benefit of the contributors, for it gave them the chance of a rise in the stock and a possibility of getting some of it back, if it had so happened that the value should rise to a point which would more than pay the large indebtedness of the company to the defendant. After waiting more than four years for this purpose, he paid his debt of $24,539.11, in October, 1879, with, the stock which remained in his hands, and which was thus applied to the purpose for which it was given, at a valuation of $42.71 per share. That this was more than the stock was worth, clearly appears from the testimony of William C. Stevenson, who has been a stockholder, director and manager of the company from February, 1875, to the present time. He was the business manager of the company for ten years. On November 10, 1879, Mr. Stevenson bought of Patterson, one of the complainants, one hundred and eighty-eight shares for fifteen dollars and ninety-six cents per share. About the same time he purchased from other stockholders other lots at about the same figure. In 1880 he bought it at twenty-five dollars per share. On March 24,1881, he bought four hundred and thirty-two shares of Patterson, the chief complainant in this case, at twenty-five dollars per share. This was seventeen months after Mr. Lennig had taken the stock at forty-two dollars and seventy-one cents per share. The stock had no market value, and sales could only be effected at private sale. These facts show conclusively that Mr. Lennig, in paying his debt, acted with entire good faith in carrying out the trust which he had undertaken, and that he allowed the contributors a much larger price for the stock than they could have obtained from any one else. No one made any complaint until four years and a half had elapsed after the matter had been settled and closed. In 1884, the stock having improved in value, the complainants filed this bill. The litigation they then commenced was plainly the result of an afterthought resulting from the subsequent improved prospects of the company. The master seems to have thought that Mr. Lennig should have taken the stock at fifty dollars per share, but upon what principle he could fairly be expected to do so when it was being offered by the company in the market at forty dollars, and could only be sold at prices ranging from seven dollars to twenty-five dollars, we cannot understand. He also seems to have thought that he should have paid his debt at an earlier day, and not have continued to hold as trustee the five hundred and seventy-four shares “ out of which he was entitled to pay it; ” but it must be manifest from what has been already observed, that the delay of Mr. Lennig in settling his own large debt against the company was altogether in the interest of those who had contributed the stock, and was in point of fact greatly beneficial to them and to the company. The master, however, rests his decision upon the principle that a trustee cannot be permitted to purchase the trust property. We entirely agree with him that this is a well-established proposition, and that it is altogether “ superfluous to cite authorities for so well-recognized a principle,” but it appears to us that the master erred in assuming that this principle has any proper application to this case. Of course if a trustee makes any profit out of a trust estate that profit belongs to the cestui que trust and not to him. But this is not that case. In this case the trustee did exactly what he was employed to do. He was trustee for the payment of debts with the stock transferred. The discretion confided to him was to settle the debts with the stock transferred in the best way and upon the best terms he could. He had no other function to perform than this. He carried into effect the very purpose for which he was constituted a trustee, and the only question is whether he acted in good faith and took no unfair advantage of those who had intrusted the property to him. Now it cannot certainly be successfully contended that a trustee cannot be employed to pay debts out of a fund intrusted to him for that purpose, or that he cannot be expressly authorized to pay a debt due to himself as well as debts due to other persons. There is no rule in law or equity that a trustee shall in no case take a benefit under a deed of trust when such benefit is expressly conferred upon him by that deed. He may even buy from his cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, and that there was a clear intention that the trustee should buy, and it is apparent that there was no fraud or concealment, nor any unfair advantage taken: Coles v. Trecothick, 9 Ves. 247, and the cases cited in Hill on Trustees, 159, note c. The present case is not, however, the case of a trustee buying from his cestui que trust, but it is the case of a trustee carrying out the trust, and effecting the very object contemplated and enunciated in the express terms of the trust and in the very manner intended. Mr. Lennig was employed as a trustee to pay off the debts of the company with the shares of stock transferred to him. He was to pay all the debts with the stock, his own debt as well as the debts of the other three creditors. His own debt was much larger than those of the other three creditors combined. It was perfectly well understood and agreed that he should pay his own debt as well as the others. He had no other office or duty except to liquidate the claims of the four creditors, of whom he was himself the largest, with the stock transferred to him. He was appointed an agent to pay off the debts with the stock contributed. He was the largest creditor and the largest contributor. He had the same right to pay himself which he had to pay the others, and the same authority. He was bound to do that upon fair and equitable terms, and to take no advantage of the contributors in doing so. He was to pay all. It was for that purpose and that purpose alone that he was appointed. It was not stipulated, nor was it contemplated, that in the discharge of this duty he should consult the contributors. His powers and duties were in no degree dependent upon their action or advice, and the evidence shows that it was never intended or contemplated that they should be. If his power to act had been dependent upon the will of the contributors he would have been a mere naked trustee to hold the title, which is not pretended, and which is disproved by the evidence. He was the president of the company, one of the largest stockholders, the largest creditor, and the largest contributor to the stock set apart for the payment of the debts. They were willing to trust to his honor, his judgment and his discretion in the discharge of the duty confided to him. They asked for no security and they imposed no conditions. The evidence shows to our entire satisfaction that he discharged the duty imposed upon him with entire good faith, with perfect fairness, and with a scrupulous regard for the interests of all concerned. He waited for four years before paying his own debt in order that the contributors might profit by the delay. It must be remembered that it was not contemplated that the stock should be sold at public sale, for it was well known that it was absolutely impossible to dispose of it in that manner. There was no public market for it whatever. It was “to be used for the liquidation of the company’s indebtedness,” used according to the trustee’s best discretion. It was intended that the stock should be applied to the payment of the debts by settlements made with the only four creditors which the company had, and it was contemplated that Mr. Lennig should pay his own debt, as he did the others, by applying to its liquidation specifically, at a fair and reasonable price, so much of the stock contributed as might be necessary for that purpose. If he had the right to pay the other creditors in stock, as is conceded, he had the right to pay himself in the same manner. In applying the 574 shares which were left in his hands after the other creditors had been paid to the payment of the debt of $24,539.11 due to himself, he took no advantage whatever of the contributors. The price at which he took it in 1879 was, it is clear from the evidence, at least $26 per share more than at that time could be obtained for it from any other person, and $17 per share more than the plaintiff himself, Patterson, sold it for, seventeen months later, in 1881. After the most careful examination of all the evidence taken in the cause it is perfectly clear to us that the defendant took no unfair advantage whatever of the plaintiffs or the other contributors, but that he acted from the begining to the end in the utmost good faith towards them, and with a scrupulous regard for their rights as well as for his own honor and duty as a trustee. If the defendant had not fully and satisfactorily accounted for the disposition of the stock intrusted to him, the plaintiffs would of course be entitled to an account. But he has accounted in this proceeding so fully, and established by the evidence so clearly, the fact that he has disposed of all the stock intrusted to him in a perfectly fair and legitimate manner in pursuance of the terms of the trust, that no further account is necessary. He had a right under the terms of the trust, to pay his own debt as well as the others. In doing so he did not abuse the confidence reposed in him. He took no advantage of the plaintiffs. He acted with perfect fairness to the complainants and all concerned. They have no just ground of complaint against him whatever. An attentive examination of all the evidence has produced in our minds a clear and settled conviction that the plaintiff’s case is entirely destitute of equity. The exceptions to the master’s report are therefore sustained, and it is now ordered and decreed that the bill be dismissed and that the plaintiffs pay the costs. Thereupon the plaintiffs took this appeal from the said decree, assigning that the court erred: 1. In holding that the principle that a trustee cannot be permitted to purchase the trust property had no application. 2. In holding that it was fair and faithful conduct in the trustee to refuse openly in 1875 to take the trust stock at $50 per share for his debt, and then to take it secretly at $42.71 per share. 8. In holding that the trustee took no advantage of his cestuis que trustent, and had fully accounted. 4. In refusing to affirm the master’s report, and in dismissing the plaintiff’s bill.
118 Pa. 589Limbert v. Jones (1888)
APPEAL EBOM THE COUBT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY. No. 109 July Term 1887, Sup. Ct.; court below, No. 833 March Term 1887, O. P. No. 1. On April 2,1887, an amicable action of ejectment was entered wherein Joseph L. Jones, guardian of the minor children of Abraham Herman, deceased, was plaintiff, and Frank B. Basford and Harry A. Limbert, assignees of Mablon Scbocb, were defendants, was entered “ as if a summons had been regularly issued and had been duly served and so returned by sheriff, and judgment is confessed in favor of plaintiff without stay of execution.” This judgment was entered upon the filing of the required affidavit of the lessor with a copy of a lease dated July 22, 1884, between the plaintiff and Mahlon Schoch, the assignor of the defendants, which contained the provisions following: Provided always, That if the lessee shall fail or omit to pay the rents or sums hereby reserved, on the days and times when the same are made payable or within twenty days thereafter, or shall in any other respect violate, any of the conditions and covenants hereinabove contained, then this indenture of lease and the term hereby created shall become absolutely void at the option of the lessor, to be signified by the lessor’s causing a written notice of his intention so to determine the lease on a day to be therein fixed, to be delivered. to the lessee or left upon the premises at least ten days previous to the day so fixed: And when the lease shall be so determined by condition broken and notice as aforesaid, and also, when and as soon as the term hereby created shall have expired by its own limitation, it shall be lawful for any attorney of any court of this county to appear for the lessee in an action of ejectment to be therein brought by the lessor for the recovery of the demised premises, and therein confess judgment by non sum informatus nil dieit or otherwise, without stay of execution by entry of bail or otherwise, and with waiver and release of all errors in the said judgment or any process and proceedings thereon: Provided, that the lessor shall first cause to be filed in such action an affidavit made by himself, or some one on his behalf, setting forth the facts necessary to authorize the entry of such judgment according to the terms of this lease, of which facts such affidavit shall be evidence; and if a true copy of this lease shall be annexed to such affidavit it shall not be necessary to file the original as a warrant of attorney, any rule of court to the contrary notwithstanding. But no such determination of this lease by notice as aforesaid or otherwise, nor any recovery in ejectment upon any such judgment by confession shall operate to relieve the lessee from liability in damages for the breach of any covenant herein contained. The same day the judgment was entered, a writ of habere facias was issued and placed in the hands of the sheriff. On April 4, 1887, on petition of Harry A. Limbert, showing that he had bought out Frank B. Basford, 'a rule to open the judgment and let petitioner into a defence was granted, all proceedings to stay. Depositions were'taken on the part of the petitioner and plaintiff, and upon the evidence taken it was claimed by the petitioner that the lease had been continued for a new year beginning on April 1,1887, and that $100, the rent for the first month of the year, had been paid to the lessor. At the argument, on April 80, 1887, the court, Allison, P. J., discharged the rule to open the judgment. On May 2,1887, on motion of the- defendant, Limbert, it was ordered that all proceedings be- stayed for twenty days from May 1st, to allow time within which to perfect an appeal. The plaintiff, on May 4th, obtained a rule to show cause why the order of May 2d should not be stricken off. On May 20th, defendant Limbert filed a bond and entered this appeal, and on May 21,1887, the court, following the rule of Times Publishing Co. v. Siebrecht, 11 W. N. 339, made" absolute the rule of May 4th, to vacate the order staying proceedings upon the judgment. The errors assigned here were that the court erred: 1. In refusing to submit to a jury the question as to whether there was a renewal of the lease. 2. In refusing to allow an appeal to this court which should , be a supersedeas, inasmuch as an appeal had been duly perfected under the act of April 4,1877, P. L. 53.
118 Pa. 593Widening of Chestnut Street (1888)The exceptions are dismissed and the report confirmed
CERTIORARI TO THE COURT OP QUARTER SESSION'S OP PHILADELPHIA COUNTY. No. 66 January Term 1888, Sup. Ct.; court below, No. — December Term 1885, Q. S. On September 17, 1885, Geo. H. McFadden & Bros, presented their petition setting forth: That they were the owners of contiguous properties, described as on the north side of Chestnut street and east of Second street, in the sixth ward of the city of Philadelphia; that by an ordinance approved March 31, 1884, the city councils ordained: Section 1. That the Department of Surveys be and is hereby authorized to revise the city plans, so as- to make Chestnut street from the Delaware river to the Schuylkill river of the width of sixty feet, widening equally on both sides from the old center line. Section 2. After the confirmation and establishment of said lines, it shall not be lawful for any owner or builder to erect any new building, or to rebuild or alter the front of any building now erected, without making it recede so as to conform to the lines established for a width of sixty feet. That it becoming necessary for your petitioners to rebuild the stores or buildings upon said lots, they were compelled in so doing, in accordance with the terms of the said ordinance, to abandon a strip of ground, fronting on said Chestnut street of the breadth of five feet and extending of that breadth along the front of petitioners’ said lots, with the view of increasing the width of said Chestnut street so that it might be of the width of sixty feet, and that said strip or piece of ground has been taken and appropriated by the city of Philadelphia for use as a public street in pursuance of said ordinance. That your petitioners are greatly injured by reason of the taking of said strip or piece of ground for public purposes, as-aforesaid. They therefore pray your Honorable Court to appoint a. jury of view to assess the damages they sustained by reason of the said taking of their ground. And they will ever pray, etc. A like petition was filed by Emily B. McFadden, owning property in the same locality. On October 30, 1885, six viewers were appointed to assess damages as prayed for. On December 7, 1885, on motion of the city of Philadelphia, by its solicitors, a rule was granted to show cause why the petitions should not be quashed and the proceedings dismissed: (1) Because they were irregular and void. (2) Because the court was without jurisdiction. (3) Because the land did not. appear to have been taken by any competent order to open or widen the street at the points named in the petitions. This rule on March 1, 1886, was quashed, no opinion being filed.1 On March 17,1886, a like petition was presented by James Mifflin, trustee, and J. Sergeant Price, executor and trustee of James L. Mifflin, deceased, owning property in the same locality, which was referred to a jury of view appointed upon the petitions already filed. After various continuances, on July 11, 1887, the jury of view filed a report awarding damages to Geo. H. McFadden & Bros, for three properties, Nos. 121,123 and 125 Chestnut, in the sum of $6,000, and to the Mifflin estate for two properties, Nos. 117 and 119 Chestnut, $4,000, and7 assessed the same as the total amount of damages against the city of Philadelphia. On the filing of the report, certain facts — inter alia that the public plan for the widening of Chestnut street five feet on the north line over the properties between the Delaware river and Twenty-second street, and five feet on the south side of said street, and fixing the plotted width at sixty feet, was duly confirmed by the board of surveyors on March 2,1885, and that the Mifflin estate and McFadden properties were acquired before that date — were by agreement of council incorporated with the report of the viewers, with the same effect as if found by them. The same dajr various exceptions were filed by the city of Philadelphia, which on July 2, 1887, were disposed of by the court, Biddle, J., by the following opinion and decree: We hold that whenever the citizen is required to recede from the old building line in erecting his new building, his right to damages accrues. The real question raised by the exceptions, is as to the amount of damages given by the jury. Some of the witnesses endeavored to establish them by taking the annual gross profit which could possibly be made from the storage of goods on four or five floors, five feet wide each, and capitalizing it at the rate of six per cent., thus giving to the owner of the land an annual income forever equivalent to the storage charges which would be received if the building was always filled at remunerative rates.' Such a rule is utterly inadmissible, and if there was any evidence that the jury had adopted it, their verdict would at once be set aside. The damages estimated by that rule would be about $17,000 for McFadden’s property and $9,500 for the Mifflin property. As the jury, however, awarded $6,000 to McFadden and $4,000 to the Mifflin property, we can scarcely put upon them the reproach of having* adopted that standard. Mr. Chas. F. Gummey estimated the damage to the selling value of the McFadden property at $9,000 and the Mifflin property at $6,000. Mr. Lewis H. Rédner estimated the damage respectively at $10,000 and $7,000. Other experts named lower figures, but after a careful perusal of the testimony, we are not prepared to say that the award of tbe jury, $6,000 and $4,000, is excessive. The city of Philadelphia then took this writ, assigning as error, inter alia, that the court erred: 5. In dismissing the city’s sixth exception, which was: Because Geo. H. McFadden & Bros., petitioners, failed to disclose title to the land for the averred taking of which they claim damages, and, in fact, the title is not vested in them. 7. In dismissing the city’s thirteenth exception, viz.: Because the petition and proof failed to show an appropriation to public use of the strip of five feet, for the taking of which damages are claimed, and the court is without jurisdiction. 8. In overruling and discharging the motion to quash, filed on behalf of the city, December 7, 1885.1
118 Pa. 600McElhone v. McManes (1888)The exceptions in this case are dismissed
APPEAL EBOM THE COUBT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY. No. 55 January Term 1888, Sup. Ct.; court below, No. 540 September Term 1886, C. P. On October 18, 1886, a bill in equity was filed by Thomas McElhone against James McManes, owner, and George F. Payne and Charles W. Wetter, trading as George F. Payne & Co., for an injunction to restrain the defendants from laying a drain-pipe in the soil of an alley, the title to which was claimed to he in the plaintiff. The cause being put at issue by answers and replication, Mr. James W. Latta was appointed examiner, who, on June 10, 1887, made a report which in its findings of fact and of law was as follows: " The plaintiff is the owner of the premises at the southeast corner of Thirty-sixth and Haverford streets, and has the fee in the soil of the alley. He has owned them since the first day of June, 1882, and bought with a full- knowledge of the existence of the alley, deriving his title through intermediate owners from William Peterson, who some thirty years ago dedicated the alley by laying out his lots and extending the yards of his houses to it. Nowhere in the paper title does this or any dedication appear. The right to the alley is solely a right by user. For a long time the alley which does and always did extend from Haverford street to Rockland street, two public highways, was unpaved. Its boundaries were designated only by a fence on the western side from which the gates from the yards of the houses fronting on Thirty-sixth street opened into it. There was no fence on the eastern side and nothing to outwardly denote its separation from an open lot which lay there until a time not definitely fixed, but certainly many years ago; then a fence was erected, which with the other already in existence, inclosed the alley lengthwise and subsequently the entire alley was paved. Its two ends are now and appear to have always remained open. The alley was used as a passage-way, as one witness states, “ as are all others for going in and out.” Before the alley was paved ashes were thrown into it to make good walking, that banked the water into the yards, and trenches six or eight inches deep were dug from time to time in the alley for its outlet. Trenches and water-courses were frequently dug in it. They were temporary and needed to be cleaned every day or two. It nowhere appears that there was any restriction or limitation as to the use of the alley. Nor was there ever any dispute as to its use up to about the time of this procedure. It did not appear that there had ever been any other drain laid in it. One witness testifies as far as he knew it was used as a public way. The plaintiff suffered no direct injury, nor did he derive any benefit from any connection with the drain itself. The defendants’ witnesses testified that the drain was of a benefit to plaintiff for taking up the water from the surface and roof, and keeping the alley dry for the six months when it would be obstructed by slush and ice. The indirect injury that the plaintiff complained of was that the drain prevented his extending his cellar with a vault for the storage of coal; which, when so extended, would have permitted him to use the whole cellar for the wines and liquors essential to keep for the prosecution of his business. This vault he had intended building under the alley. It did not appear by the testimony that there was a public sewer on Thirty-sixth street; as a fact there is none. If there were, there could be no question that each of the six houses built by the defendant should be separately and independently connected with it. The question presented is not one of title to a right of way to be first settled at law, as was strenuously insisted upon by the defendants’ counsel. The plaintiff, the owner of the servient tenement, concedes the right to the dominant owner, the defendant; nor does it depend so much upon a right with or without restriction or limitation, for if it be a right of private way only, whether by grant or user, it is essentially one and the same thing. If it came by user and was only a way in the beginning, so it must continue. If it had been by grant it would have doubtless been in the customary phrase “ as and for a passage-way and water-course forever.” Clearly, uninterrupted, continuous and exclusive use, notoriously for twenty years, essential for the conference of such right, must give at least an easement of the way. And it ought to he conceded that such an easement will not prevent the servient owner from building over the way; and if over, why not under, provided that by such building the right itself is in no wise interfered with ? This was, however, in no sense a “ way of necessity,” nor as a rule are the ways and alleys of a city in any sense usually such ways or passages as the books define and construe “ private ways ” to be. The public thoroughfare was essentially all that was needed for common ingress and egress to and from the houses. The other outlet was a need that grew from the surroundings, the necessities, the essentials, consequent upon the congregation of persons and property for convenience and enjoyment in health and comfort, of what they have brought together of their worldly goods and effects. Such aggregations require other opportunities for the reasonable enjoyment of what every man is entitled to fully, freely, and healthfully enjoy, than where the inhabitants are scattered and the settlements sparse. Coming, therefore, as did this right by prescription, it must have comprehended in the fullest sense a right incident to all these consequent necessities and essentials. The right would vary as the needs varied. While the vicinity was more or less rural, the surface would answer all demands for reasonable comforts and healthful enjoyments. But as the population grew and the buildings increased, other necessities might demand, other essentials might require, a higher and more extended privilege. And if need be that the soil must be penetrated to remove what would otherwise offend a proper regard for wholesome cleanliness or endanger the public health, then the prescription intended that the servient owners must yield to such necessities. It is clear that the former owner, Peterson, in laying out the alley, intended it to be a free and open way forever. “ It needs no citation of authority,” says Sterrett, J., “ to show that such a .right of way appended or annexed to an estate may be used and enjoyed by those who own or lawfully occupy the dominant tenement for any purpose to which it may from time to time be legitimately applied:” Gunson v. Healy, 100 Pa. 42. Was this not-then such a dedication as to bring the land dedicated within the incidents necessitated by a dense and crowded- population?- For a long time there was no fence on one side of-it. Its ends were never closed. It connects two public highways. It was so far a public way as to be as well a passage for those who. chose to use it to pass from Rockland to Haverford street, as it was for those whose properties abutted on it, their neighbors, friends and visitors. There was in fact no evidence of any intention on the part of the common owner who laid out the alley to retain any control of it whatever. Because of this, is there any additional servitude imposed upon it consequent upon the essentials imperatively demanded for the preservation of the health and safety of a larger and growing community ? If the owner of the soil open a passage-way and neither marks by any visible distinction that he means to preserve all his rights over it nor excludes persons from passing over it by positive prohibition, he shall be presumed to have dedicated it to the public. Although the passage in question was originally intended only for private convenience, the public are not now to be excluded from it after being allowed to use it so long without interruption: Per Lord Ellenborough, in Rex v. Lloj'd, cited in Angelí, Highways, 152. It does not seem to be certain that there exists a right to occupy even the public highways with sewer, gas or water pipes, except that it be considered within the police power of the state to regulate and provide that they shall be so occupied by wholesome and reasonable laws for the health and safety of the community. In the country such uses, it has been held, were not within the original taking, and must be paid for: Angelí,-Highways, 94. If the police power of the state is broad enough to regulate the use of the highways for the public benefit in the city, because it is a city, to do there with the roads what it cannot do in the country, because it is the country, why cannot the state in a city do- that with a private way over which was a right of passage, and evidently more, which it is conceded it may do with the public streets and thoroughfares, the fee in the soil in both instances being somewhere else? Such at least the legislature of Pennsylvania conceived it could do, and so, in fact, it did do, when by the act of June 30, 1885, P. L. 250, it authorized and directed the board of health of the city of Philadelphia to make and promulgate rules for the “ construction of house drainage and cesspools,” and also prescribed that upon their promulgation the offender guilty of a refusal or neglect to comply with them should be liable to punishment by a fine of not more than one hundred dollars, or an imprisonment not exceeding one year, or both, at the discretion of the court. These rules, on February 23, 1886, were duly promulgated, and from thence have been and are part of the laws of the commonwealth...... With a sewer accessible by an alley, with none on Thirty-sixth street, and the prohibition against cesspools, either the buildings must stop or the builder be involved in the violation of a penal statute. To this it may be answered well enough, “ you have made provision for the taking, but failed to provide for the compensation. To be sure you may require that the drainage shall be properly and safely constructed, but where there is no other accessible outlet except through, my alley, you have no right to permit the use of its soil except you pay me for it.” Whether or not, to suppress or abate a nuisance, (and if there be one nuisance more conspicuous and continuing than another, unsafe and improper drainage is that one,) the state in the exercise of its police power, can authorize entry without compensation, need not here be considered. Is, indeed, such municipal action really a taking; does it in fact rise higher than a mere regulation ? In Baker v. The City of Boston, 12 Pick. 194, it was said: “ The measure was a mere health law or regulation and every citizen holds his property subject to such regulations. Police regulations to direct the use of private property so as to prevent its proving pernicious to the citizens at large are not void, although they in some measure interfere with private rights without providing compensation. And if by such regulations an individual receive some damage it is considered as damnum absque injuria.” Nor indeed did any direct or present injury follow in this instance. Prospectively the plaintiff is deprived of a consummation of an intention to' extend his cellar; probably not wholly, for doubtless means might be devised by which the extension could be made, notwithstanding the existence of the drain; otherwise, if the alley way be any use to him at all, he is really benefited. Liability to leakage is as likely from one source as the other. He is relieved from slush and ice that must accumulate from the waste and overflow of the hydrants and melting of snows from the roofs and yards, and the alley is at all seasons a free and open means of passage. This law is a most salutary measure. It strikes at as safe and sure a preventive against disease, epidemic, and contagion as has yet been devised. Already but a short time in existence, its beneficial effects are apparent, not only in all new building operations but elsewhere, when it has been necessary to invoke its wholesome provisions. Odious and distasteful at first, as the good results of its working have become known, it has grown in the public favor. Applicable only to cities of the first class, others have asked the extension of its wise provisions for their benefit. Statutes of a like character have for some time been safely and satisfactorily operated in New York, San Francisco, Washington and Baltimore. In this instance, with such an open, notorious and free dedication for all and every purpose for which an alley in a city might be used, no fundamental principle appears to have been disturbed, and the court should lend their sanction to a measure so essential to the preservation of the public health. Your master therefore recommends that the bill be dismissed and submits a decree to that effect. Exceptions filed to this report by the plaintiff in the bill, on argument on September 27, 1887, were dismissed by the court, Biddle, J., in the following opinion and decree: This alley was evidently dedicated to the use of the adjoining houses as a water-course and passage-way and has been used as such for thirty years. Whether the water is carried over the surface or under the surface we do not think material. There is no restriction requiring that the water should be made to flow over the surface of the passage-way. Used as the plaintiff requires, it would be of little use to the houses for whose benefit it was dedicated, and would probably be abated as a nuisance. We do not think the act of 1885 can affect the rights of the parties in this proceeding. The plaintiff thereupon took this appeal, assigning that the court erred: 1. In dismissing the plaintiff’s exceptions to the master’s report and dismissing the bill. 2. In not making a decree that the defendants should take up the drain and replace the alley as it originally was. 3. In not making a decree as prayed in the plaintiff’s bill.
118 Pa. 610Alexander v. Wunderlich (1888)
APPEAL FROM THE COURT OE COMMON PLEAS OE MONTGOMERY COUNTY. No. 100 January Term 1887, Sup. Ct.; court below, No. 1 December Term 1884. On January 7,1885, John Wunderlich filed a bill in equity against Margaretta Alexander, to enforce the specific performance of a written contract to convey land. After issue by answer and replication, the cause was referred to Mr. Montgomery Evans, as examiner and master, who found from pleadings, testimony and admissions before him the following facts : On March 11, 1884, Margaretta Alexander, being the owner'of a farm of 28 acres and 75 perches in Upper Salford township, and John Wunderlich, being the owner of a farm of 52 acres and 87 perches in Franconia township, agreed to exchange their respective properties. They accordingly executed two separate agreements of sale for their particular farms, both drawn by John J. Corson, a real estate agent and conveyancer of Norristown. Neither agreement refers in any way to the other. Both agreements are of the same date, March 11, 1884; contain covenants for the sale of the respective farms for the same consideration, except that the Wunderlich property is valued at $4,500, including a $2,700 mortgage thereon, and the Alexander property at $1,800, clear of incumbrances ; $250 of the consideration money to be paid upon the execution of the respective agreements, the balance on October 1, 1884, when deeds are to be executed at the office of John J. Corson ; and upon the payment of said sum, i. e. the balance of the purchase money over and above $250, the grantors shall execute proper deeds to the grantees at the expense of the latter, in fee simple, free of incumbrances and right of dower, etc. The grantors covenant to convey at the price fixed, in one contract $1,800, in the other $4,500, “in the manner and at the time,” not “ all ” times as printed in the bill, “ herein above provided.” Possession was to be given on April 1, 1884. Certain personal property was to go with the land in each case. The contracts are signed by the same parties, with the same persons as witnesses. The two agreements differ in the description of the premises to be conveyed, of course, and in the penalty for non-compliance, which, in the contract for the sale of the Alexander farm, is “ in the penal sum of thirteen hundred dollarsin the other, for the sale of the Wunderlich property, it is “ in the sum of thirteen hundred dollars as and for damages liquidated and settled between the parties hereto.” In the agreement for the sale of the-Wunderlich farm the parties thereto are declared to be John Wunderlich of the one part, and Edward R. Fellows, who is the son-in-law of Mrs. Alexander, of the second part. Margaretta Alexander and not Edward R. Fellows signs the contract as the party of the second part. It was the understanding and intention of all the parties that the deed for the Wunderlich property should be made to Edward R. Fellows. The down money, $250, was paid by an exchange of receipts, no money actually passing. In pursuance of these agreements Mr. Fellows took possession of the Wunderlich property, with a quantity of hay, straw, and a few other articles of personal property upon the premises, in the latter- part of March, 1884. Mrs. Wunderlich obtained possession of the Alexander farm a few days after the agreement was signed and on March 14th, by written agreement, contracted to sell the farm to Sebastian Schultz, who paid $300 in cash on account of the purchase money. The title to Schultz was to be completed by October 1, 1884. Schultz took possession of the premises, with some hay, straw, etc., thereon, left there by Mrs. Alexander according to her agreement. Mr. Wunderlich, a short time prior to October 1,1884, sent word, through two different persons, to Mr. Fellows, who acted for and with Mrs. Alexander throughout this whole transaction, to be on hand on that day at Corson’s office, as he would be there with an executed deed for the premises he had sold to him. But Wunderlich went to Philadelphia a short time prior to October 1st to obtain the signature of his wife to a deed for the premises he had sold. He did not accomplish his purpose however, until October 24th. « Mrs. Alexander and Edward R. Fellows were in Norristown on the appointed day, with no deed for their property actually prepared, but ready and willing to comply with the agreement for the exchange of deeds had Wunderlich been ready to then comply. Mrs. Alexander made no tender of a deed to Wunderlich, nor did she see him in regard to his failure to comply at the time fixed; but Mr. Fellows, a few days after October 1, 1884, went to Wunderlich’s home in Sumneytown, but did not find him as he was in Philadelphia. Then Fellows came to Norristown, and, receiving no information from Wunderlich’s counsel, Ms own attorney, Mr. Hunsicker, addressed a letter to Wunderlich at Sumneytown, demanding compliance with the contract witMn one week or suit would be brought. On October 28, 1884, Fellows brought suit to No. 45 December Term 1884, to recover damages for failure to comply with the agreement. On November 8,1884, a deed, executed by John Wunderlich on September 26, 1884, and by his wife on October 24, 1884, conveying the Wunderlich property to “ Edward Fellow ” (sic) was tendered the latter, on the premises, but refused. No reason for the refusal was given. On November 15, 1884, the same deed was tendered to Margaretta Alexander and refused. Mr. Fellows, after harvesting all the crops matured, made sale, and moved from the Wunderlich farm on November 80, 1884, Mrs. Alexander going with him. The key of the house was sent to Wunderlich by express. Fellows left upon the premises a portion of the hay and straw he found there upon taking possession. He paid no interest upon the $2,7.00 mortgage mentioned in the contract of sale. The property remained unoccupied until March, 1885, when Isaac S. Borneman took possession by consent of Wunderlich’s counsel, who gave written notice to Mrs. Alexander and Mr. Fellows on December 17,1884, that in accepting the keys by express or in taking possession of the Franconia farm, he did not intend in any way to release them from a specific performance of the Upper Salford premises. Borneman, the occupant, has kept an account of all receipts and expenditures of the farm. It was further found from testimony taken before the final report of the master was filed, on a re-opening of the hearing: That Sebastian Schultz during the pendency of this suit, to wit, on November 24, 1885, removed from the premises purchased from Wunderlich and had brought suit to No. 88 December Term 1884, to recover the down money he paid, and that the property was again in possession of Wunderlich. Also, that Isaac S. Borneman, who, at the instance of Wunderlich, took charge, of the premises relinquished by Mr. Fellows and Mrs. Alexander, has in his hands $230, as the net proceeds of crops, etc., sold from said premises. Also, that subsequent to the filing of this bill, to wit: November 6, 1885, suit was brought by Tobias K. Nice, et al., v. Elizabeth P. Storey and William A. Storey, with notice to John Wunderlich, terre tenant, to foreclose the mortgage upon the farm which Wunderlich agreed to convey to Mrs. Alexander. On January 25, 1886, judgment was obtained by default against defendant and terre tenant, and the property was afterwards levied upon and sold by the sheriff, who acknowledged his deed to the purchaser on March 18, 1886. Neither Margaretta Alexander nor Edward R. Fellows appears as a party to these proceedings. Upon the foregoing facts found, the master held that a court of equity had jurisdiction under its power for “ the affording specific relief when a recovery in damages would be an inadequate remedy:” Act June 16, 1836, P. L. 789; Finley v. Aiken, 1 Gr. 83; Brightly’s Eq. J., 188; Bisp. Eq., §§ 362-364; Kauffman’s App., 55 Pa. 383; that whether or not specific performance should be decreed in any particular case was discretionary with the court, and proceeded: Are the facts in the present case such that it would be inequitable to refuse the prayer of the plaintiff for a decree of specific performance ? Both parties had taken possession of the respective properties purchased,- through their alienees. Wunderlich had sold to Schultz. Mrs. Alexander had sold to. her son-in-law, Fellows, who went into possession and remained there from March to December, harvesting the crops grown during that time, and then, without even paying the interest accruing meanwhile upon the existing incumbrance, moves away, first having brought suit to recover damages from Wunderlich. If this were the whole case, surely a chancellor would be- constrained to grant specific performance to plaintiff. But the defendant proved as her defence that she was ready and willing at the time fixed for the completion of the respective titles, to wit: October 1, 1885, to fully comply by executing a deed to plaintiff. This brings up the principal question. Has the plaintiff by his failure to comply with his agreement on the day named, forfeited his rights ? There is no stipulation nor necessary implication in these contracts that time shall be considered as of the essence thereof. In their absence, time is not ordinarily of the essence of the contract for the sale of lands : D’Arras v. Keyser, 26 Pa. 249; Bispham’s Eq., § 391. This was to be an exchange of properties. A conveyance by Wunderlich of his property represented the purchase money for that purchased by him from Mrs. Alexander. He was not ready with this deed on the day mentioned in the contract for its delivery. Can he afterwards tender it and come into a court of equity to compel what would have been ready to his hand on October 1, 1884, had he then been ready with the deed for his property ? Yes, if he has shown himself ready, desirous, prompt and eager. No, if he has been guilty of gross laches or inexcusably negligent in performing his contract, or there has been a material change of circumstances affecting the rights and interests of the parties: Tiernan v. Roland, 15 Pa. 438. The facts must answer: Possession is taken, by the two parties, of the' exchanged properties. Wunderlich sells the one he receives to Schultz, agreeing to give a deed therefor on the very day he is to receive title from Mrs. Alexander. Some time before October 1st, he sends messengers to Fellows notifying him and his mother-in-law to be ready at the time fixed. On September 26th, he signs and acknowledges a deed for his former property to Edward Fellows. All tipis shows that he was desirous, prompt and eager, and guilty of no laches. He then goes to Philadelphia to obtain his wife’s signature and fails. He does not accomplish it until October 24, 1884. Is his inability to perfect his title excusable ? In the case of Townsend v. Lewis, 35 Pa. 125, where specific performance was decreed, the delay was due to the want of the wife’s signature at proper time. It is sufficient if the party has a good title at the time of the decree: Langford v. Pitt, 2 P. Wms. 630; 3 Lead. Cases in Equity, 445, 79. The delay is only from October 1st to November 8th, the time of tender of the deed. This could not be regarded as gross laches on the part of the old man. The only question then is, was there any change in the circumstances which made it inequitable that both parties should fulfil their contracts at the time of tender of the deed by Wunderlich. No, for both parties were in possession of the exchanged properties, just as they were on April 1st, before. Fellows gathered the crops on the late Wunderlich farm and remained thereon until November 30th, when, without having given any notice of his intended removal, he sent the keys of the house, by express, to Wunderlich. It is true that about the middle of October, Fellows’ counsel addressed a letter to Wunderlich giving him a week to comply, and on October 23d, Fellows brought suit for damages. As he was then still in possession, the only effect of such a notice would be that he claimed damages, not that he rescinded the contract. The tenor of the letter has not been proved. It would seem doubtful whether any length of default will give a right to determine the contract in the absence of notice and where the presumption of abandonment is repelled by actual possession: 3 Lead. Cases in Equity, 87; Hatton v. Johnson, 83 Pa. 219. The notice must give a reasonable time and be explicit in demand and tender: Wiswall v. McGowan, 1 Hoff. 125, 139; Tiernan v. Roland, 15 Pa. 429. There is no proof of proper notice in this case. Indeed the defendant has never tendered a deed for the late Alexander property to plaintiff, nor has she ever had any deed, either to her or from her, prepared. The property did not deteriorate up to the time of tender of the deed, nor was there any change of circumstances affecting either of the parties. Mrs. Alexander says that Fellows refused to purchase the property because title was not made early in October. Fellows gives no valid excuse for his change of mind, and Mrs. Alexander can compel him to fulfil his agreement with her, unless she has done or omitted something to her own prejudice. However that may be, her act or omission cannot affect Wunderlich’s rights. It is urged that the deed tendered by Wunderlich was not in proper form, the name of the grantee being written “ Edward Fellow” instead of “ Edward R. Fellows.” But no objection to the form or sufficiency of the deed was made at the time of tender or the defect could have been remedied: Tiernan v. Roland, 15 Pa. 429. It was Mrs. Alexander’s duty, under the contract, to have had the deed prepared. Under the two several and distinct contracts in this case either party could have a decree of specific performance as to either property without reference to the other property. If A. contract to sell one estate to B., and B. contract to sell another estate to A., although entered into by the same instrument, they are several contracts and either A. or B. may compel the other to convey his estate to him, although he himself cannot make a title to the estate which he contracted to sell: 1 Sugden on Vendors, 319*, citing Croom v. Lediard, 2 Myln & K. 251, 293. As the difficulty existing between Wunderlich and his wife was known to defendants and the matter was talked over before October 1, 1885, and was again the subject of conversation between Fellows and Mr. Swartz and Mr. Weand on that, day and afterwards, and the reason for -the delay was known and nothing said by the defendants to indicate that the delay was not acquiesced in, and the defendants continued in possession and there was no change in the circumstances, there seems to be no escape to a chancellor from making a decree of specific performance in favor of the plaintiff. Even where time has been of the essence of the original contract, the result of the authorities is, that a new right may grow out of the entry of the vendee and part payment of the, purchase money, or other acts of part performance, which, equity will protect and enforce: 3 Lead. Cases in Equity, 85; Edgerton v. Peckham, 11 Paige 352; Jones v. Robbins, 29 Me. 351. Under every view of this case the master is of the opinion that specific performance should be decreed in favor of the plaintiff. He therefore recommends to the court to make a. decree that the said defendant, Margaretta Alexander, shall execute and deliver a proper deed of conveyance in fee simple-for the premises mentioned in the bill, to said John Wunderlich, upon the payment by him of the sum of two hundred and thirty dollars to her and also upon the delivery by him to her of a proper deed of conveyance in fee simple, executed by himself and wife, for the premises he contracted to convey to her, mentioned in the answer of respondent. And further, “that the defendant be restrained from maintaining or prosecuting any action at law against the plaintiff for damages for breach of the contracts mentioned in the bill and answer in this suit, upon the payment or tender by plaintiff of the costs accrued in the case of Fellows v. Wunderlich, 45 December Term, 1884. And further, that each party pay one half of the costs of this, suit. Various exceptions by the defendant were overruled by the master and, being filed with his report, on November 1, 1886, they were dismissed by the court, Boyer, P. J., without opinion, and a final decree entered as recommended. Thereupon the defendant took this appeal, specifying, inter alia, that the court erred: 1. In reforming the two contracts of sale into a contract of exchange. 2. In decreeing performance of a contract different from "that alleged in the bill. 4. In entering the decree recommended by the master.
118 Pa. 622Cozens v. Middleton (1888)
ERROR TO THE COURT OP COMMON PLEAS OP MONTGOMERY COUNTY. No. 424 January Term 1887, Sup. Ct.; court below, No. 190 October Term 1884, C. P. On July 30, 1884, suit, was brought by Edward H. Middleton, against A. Ervin Cozens, upon the following note : $1,000. Jenkintown, Pa., April 22,1884. Three months after date I promise to pay to the order of A. Ervin Cozens, One Thousand Dollars, at the Jenkintown National Bank, Pa., without defalcation, value received. Credit the drawer, A. Ervin Cozens. T. Lloyd Fulmer. [Indorsed by A. Ervin Cozens.] At the trial on November 24, 1886, under the plea of non assumpsit, when the plaintiff had rested upon proof of the note, the defendant testified, in substance : That in January, 1884, T. Lloyd Fulmer, the maker of the paper, being in debt to some extent, and about to incur other indebtedness, inter alios, to E. P. Allis & Co., of Milwaukee, for machinery for the introduction of the “ Roller Process ” into his mills at Jenkintown, was endeavoring to place a mortgage for $10,000 upon his properly, with the proceeds of which to pay off his existing and prospective indebtedness; that, fearing a mechanics’ lien would be entered by Allis & Co., if he purchased from them, which would interfere with the mortgage loan desired, Fulmer had the defendant and others of his friends indorse several of his notes which were to be turned over to Allis & Co. to hold until the mortgage loan could be obtained, and that such a note for $1,000, at three months, was made by Fulmer, indorsed by the defendant for that purpose, and left with Fulmer, on January 22, 1874; that in April following, when this note was about to mature, Fulmer came to the defendant, and, saying that his dealings with Allis & Co. had not been consummated, surrendered the said note and had the defendant indorse a second one, for the same amount and for the same time, to be used for no other purpose than that for which the other note was to be used, and that the note then given was the note in suit: Further, that just before this second note matured, the defendant discovered that a mortgage loan had been obtained by Fulmer, that Allis & Co. were not paid and had filed a mechanics’ lien, and that Fulmer had turned the note over to the plaintiff Middleton; that in an interview with the plaintiff the latter had admitted to the defendant that when he received the note Fulmer had told him for what purpose it was to be used when the defendant indorsed it. In this testimony the defendant was fully corroborated by the testimony of Fulmer. In rebuttal, the plaintiff denied that any information whatever had been given him as to the purpose of the note in suit when it was indorsed, or that he had made the admissions to the defendant as stated. Fulmer’s credibility was affected by the testimony of Aaron I. Sanson, who testified that he was present at a conversation between Fulmer and Middleton before the bringing of the suit, when Fulmer, being told of the defence likely to be made against payment, said he had not informed the plaintiff when he transferred the note to him of the purpose for which it was intended and he would so testify. Other matters of defence set up appear in the charge of the court below and in the opinion. The court, Boyer, P. J., charged the jury, in part, as follows : In this case there are two defences set up, under which it is maintained that the note cannot be recovered upon against Mr. Cozens, owing to the agreement between him and Fulmer when it was given. One is because the plaintiff had knowledge of that circumstance. Another is that Mr. Middleton, the plaintiff in this suit, when he received this note, accepted it as a collateral security, and not in payment of his claim, and that therefore, in consideration of this note, he gave no actual value, and for that reason he took it subject to the equities existing between the original parties. If Mr. Middleton, when he received this note from Lloyd Fulmer, was told by Lloyd Fulmer, as he testifies, that this note was given only for the purpose of a settlement which was in contemplation between Fulmer and E. P. Allis & Co., and that he was to make no other use of it, then Mr. Middleton took it subject to the defence which is set up in this case, that it was to be returned to Cozens in case it was not used in the settlement between Fulmer and E. P. Allis & Co.; and in that case, if you believe that that agreement existed between Fulmer and Cozens when the note was given, that it should be used only for that purpose, and that was communicated to Middleton, there is an end of the plaintiff’s case. He could not, under those circumstances, recover against the defendant in this action. But you will scrutinize the testimony upon this point with careful consideration. You will inquire as to the credibility of Mr. Fulmer’s testimony upon this point. You will bear in mind that if Fulmer testifies to the truth, he testifies that he committed a fraud, as against Cozens. His object in passing the note off upon Middleton was to gain time, and to satisfy Middleton for the time, who was pursuing him upon his claim. Is it natural that Fulmer would have volunteered to tell Middleton a circumstance which would affect the validity of the note in his hands ? Or, if Fulmer was ready, in fraud of Cozens, to make use of this note for a different purpose than that for which it was given, was it natural that he should be so scrupulous as to communicate to Mr. Middleton circumstances which were likely to induce Middleton not to accept the note ? Middleton denies upon oath that he received from Fulmer any information of the kind. If you believe the testimony of Lloyd Fulmer, as I said before, there is an end to the plaintiff’s case. But if you reject the testimony of Fulmer in regard to the notice he alleges to have given to Middleton, the next question for your consideration will be, as to whether this note was received by Middleton in payment of Ms claim. If it was received by him in payment of his claim, and' he did not know of the circumstances under which it was given, he is entitled to recover in this action. Now, what amounts to the payment of a claim ? For we must take care not to be confused by the loose use of language. The payment of a claim is its extinguishment. Mr. Middleton testifies, that he took this note in payment of the first note which Fulmer had given Mm, and that he surrendered that note by mailing it to Fulmer. Fulmer does not recollect, as he testifies, whether he received it or not; and, taking the testimony of Mr. Middleton as it stands, this note, if you believe him, was accepted in payment of Mr. Fulmer’s first note. But was that a payment of Mr. Middleton’s claim ? You will recollect that the debt was contracted upon a contract between Middleton and Fulmer, under which Middleton sold and delivered to Fulmer certain macMnery. The payment was to be cash. The cash was not paid, and Fulmer gave a note to Middleton for $1,025, payable in fifteen days. It was not paid when it became due, but when Middleton went to claim the money, Fulmer said he had not the money to pay the note, but he would give him this note in suit with the name of Cozens upon it, which, he said, made it as good as wheat. Middleton took the note. [Now the presumption of law is, in the absence of other evidence, that when a creditor under such circumstances receives a security,, that he receives it as collateral to the antecedent debt; and therefore, unless evidence can be found in this case that Middleton agreed to take this note in satisfaction of his claim, it is but a collateral in his hands; and if it be a collateral in his hands, then, supposing it to have been given by Fulmer to Middleton in fraud of Cozens, in consequence of the special use for which it was given, then Cozens can defend against this action; provided he has shown to your satisfaction that the agreement as to the special use to which the note was to be restricted existed at the time the note was given between him and Fulmer.] 7 It would not be natural that Middleton should accept this note in full payment of his claim, because the original contract still existed, unless it was expressly given up ; and Mr. Middleton had a right, and exercised it, to file a mechanics’ lien for the whole amount. This note, therefore, under the circumstances, was but a substitute for the note which had previously been given. If Mr. Middleton had surrendered a valuable security in consideration of this note, the case might stand otherwise ; but when he received this note he only gave up the note which had been previously given, and upon which Lloyd Fulmer’s name stood alone. He received this note, upon which were the names of Mr. Fulmer and Mr. Cozens, and if there can be no recovery in this case, the note is still good as against Fulmer. Therefore, in this transaction, when Mr. Middleton accepted this note, he put himself in no worse position than before, even should he fail to recover in this action. For that reason I charge you that it is to be considered as a collateral to Mr. Middleton’s claim upon the contract for the ■ sale and delivery of the machinery. [The vital question in this case, as I view it, is the question whether the contract which is alleged between Fulmer and Cozens when the note was given, really existed. If the contemplated settlement with E. P. Allis & Co. was simply the occasion of giving the note, and when the note was given its use was not restricted to that purpose alone, then Mr. Fulmer received the note primarily for that purpose, but without restriction as to its use for another. You must be satisfied that this alleged agreement was not an afterthought, and in the consideration of that question you will recall the testimony in relation to the conduct of the parties. It was the duty of Fulmer, according to that agreement, if it existed, to have returned the note to Cozens when the contemplated settlement with E. P. Allis & Co. failed. It was not returned. You will take into consideration what passed when Mr. Middleton called upon Mr. Cozens to arrange for the payment of that note. Upon this subject the testimony varies. Mr. Middleton swears that Mr. Cozens said that he had been at expense lately in erecting certain buildings, and that he was short of money, and gave that as an excuse for not paying anything upon the note. Mr. Cozens swears on the contrary, that he reminded Mr. Middleton of the circumstances under which the note was originally given, not by detailing the circumstances, but by making an allusion to the terms upon which the note had been given, and swears that Mr. Middleton replied that he knew of that fact. Upon this point it is important to consider when this knowledge came to Mr. Middleton, because if it came to him after his acceptance of the note, it would make no difference so far as the notice is concerned; but I call your attention to these circumstances in order that you may scrutinize, by the light of all the facts in the case, whether or not there was an original agreement when the note was given, restricting Fulmer to the use of the note solely for the purpose of settling with E. P. Allis & Co.]3 The plaintiff has requested me to charge you upon certain points, which I will now proceed to do : 1. That if the jury should find that the plaintiff took the note in suit in payment of the previous $1,025 note, without notice of the defence now set up, he is entitled to recover the amount of the note with interest. Answer: This is only true provided the plaintiff also accepted the note, not only in payment of the note for $1,025 previously given by Fulmer, but in absolute payment of so much of the original debt. 2. That the payment of the $1,025 note is to be presumed as a payment, unless the evidence shows the contrary to be the fact. Answer: We decline to affirm this point as stated. Although it may be presumed to have been a payment of the $1,025 note, the substitution of the new note is not to be presumed to have been an absolute payment on account of the debt, unless it is shown to have been so by the accompanying facts in evidence. 3. That under all the evidence in the case the plaintiff is entitled to recover the amount of the note with interest. Answer: We decline to so instruct you. That must depend upon how you find the essential facts, and apply the law to them under the instructions of the court. The defendant has also asked me to charge you upon certain points: 1. If the jury find that the note in suit was not accepted as payment of the debt then owed by Fulmer to Middleton, but merely as a collateral or additional security to cover such indebtedness, then the defendant in this action can set up any defence he might set up against Fulmer if he were suing on the note. Answer: I cannot answer this point directly, because it assumes that Fulmer could sue Cozens upon the note, which would be impossible, because Fulmer is the maker of the note; but I will answer it according to what I conceive to be its intent. [It is true, as this point is intended to state, that unless Middleton became the possessor of the note in question by accepting it in payment of so much of the debt owing by Fulmer to Middleton, he took it subject to the equities existing between Fulmer and Cozens, and cannot recover, provided you find that the note was given to Fulmer by Cozens with the express understanding that it was to be used only in a transaction between Fulmer and E. P. Allis & Co.] 6 2. If the jury find that the plaintiff took the note of Cozens of $1,000 without surrendering the $1,025 note, there was no consideration at that time for the $1,000 note of Cozens, and Middleton took it therefore subject to the equities between Cozens and Fulmer. Answer: In the judgment of the court it makes no difference whether the note for $1,025 was surrendered at the time the $1,000 note was delivered or not, unless the latter was accepted in payment and discharge of so much of the indebtedness of Fulmer to Middleton. The presumption in either case, in the absence of other testimony, would be that it was received only as a conditional payment, or in other words, as additional security for the payment of the original debt; and, in such case, the note in suit would be subject to the equities between Cozens and Fulmer. 3. If the jury find,' that in the mechanics’ lien filed by the plaintiff, he gave no credit for the $1,025 note given by Fulmer for the machinery that went into the mill, the plaintiff cannot recover in this suit, as the record shows no payment of said $1,025 note by him. Answer : The omission of the plaintiff to give credit for the note in the mechanics’ lien filed afterwards, is evidence tending to show that the plaintiff did not consider the note as received by him'in absolute payment on account of his claim, but only as such in case the note was paid. But the court cannot charge that the omission to give such credit, is of itself conclusive against the plaintiff in this suit, which involves also other questions. 4. If the jury find that the defendant loaned the note in suit to Fulmer for the specific purpose to use it in settlement of E. P. Allis & Co.’s claim, and for no other purpose, then when that purpose failed it was dead in law, and belonged absolutely to the defendant, and any subsequent use by Fulmer of said note, without the knowledge and consent and concurrence of the defendant, was a fraud upon the rights of the defendant. Answer: This is true, if the jury find that when the defendant gave the note to Fulmer it was expressly restricted to the settlement with E. P. Allis & Co.1 5. If the jury find that Fulmer used the note in suit in clear disregard of his promise to Cozens, and passed it to the plaintiff as security for a debt which he already owed the plaintiff, and told him to have it discounted and use the proceeds, and he would take it up when due, the plaintiff is not a bona fide purchaser for value, and he cannot recover from the defendant. Answer: This is true, if the jury also find, as before stated, that the note was not given to be nsed by Fulmer at his discretion, but solely for the purpose of settlement with E. P. Allis & Co. But if, after the settlement with E. P. Allis & Co. failed, the note was left in Fulmer’s possession to be used by Mm for general purposes, the defendant would be bound.8 7. If the jury believe that Cozens loaned to Fulmer, about the time the note in suit became due, the two $500 notes in question, that raises no new consideration either express or implied, and leaves the defendant in the same position to make defence to the original note of $1,000, as if the $500 notes had not been given, and the jury should not find in favor of the plaintiff for the reason that said notes of $500 were given by said Cozens to Fulmer. Answer: Certainly, the subsequent giving of the two $500 notes to Fulmer by Cozens, raises no new consideration upon the note in question; nor does it affect the defence, further than as evidence showing that Cozens sometimes loaned Ms notes to Fnlmer for general purposes and allowed Fulmer to exercise Ms discretion in the use of them; and as those two $500 notes were offered for discount to take up the note in question, if this had been done with the knowledge and consent of Cozens, it might have a bearing upon the question as to whether it was consistent with the theory of the defence, that the $1,000 note was given by Cozens, as he and Fulmer testify, only for the particular purpose alleged. But Cozens denies that he knew that Fulmer had given Middleton the $500 notes for that purpose, and FuLmer denies it likewise. Fulmer, however, testifies that when he obtained the two $500 notes from Cozens, he told him he would get back his $1,000 note. 8. If the $1,000 note of Cozens was given to Fulmer after the $1,025 note was due, and if the $1,025 note was an antecedent debt, then the $1,000 note was not given for a present consideration, and the plaintiff cannot recover. Answer: The $1,025 note was a promise to pay a debt antecedent to itself, and the substitution of the note in question, if not proved to have been made in payment and extinction of the original indebtedness, was but the giving of a new security and tins without regard to whether the note first given was due or not. Now, gentlemen, I have endeavored to make the principles of law involved in this case as clear to your-minds as I could, and you will now apply them, and Address yourselves to the facts in this case, which are exclusively for you. The verdict of the jury was in favor of the plaintiff for $1,141.87. A rule for a new trial was subsequently discharged. The defendant then took this writ assigning for error: 1, 2. The answers to the defendant’s points.1 8 8. The part of the charge embraced in [ ]3 6. The part of the charge embraced in [ ]6 7. The part of the charge embraced in [ ]7
118 Pa. 634Weaver v. Sheeler (1888)
Nos. 66, 67, 68 January Term 1887, and 134, 135 July Term 1888, Sup. Ct.; court below, Nos. 63, 64, 65 April Term 1886, C.'P. On March 24, 1886, writs of scire facias were issued upon three mechanics’ liens, in which Howard E. Sheeler was plaintiff and John Weaver, owner or reputed owner, and the Pennsylvania Granite Company, contractor.
118 Pa. 640In re Opening of Brooklyn Street (1888)
CERTIORARI TO THE COURT OF QUARTER SESSIONS OF PHILADELPHIA COUNTY. No. 41 July Term 1887, Sup. Ct.; court below, No. December Term 1883, Q. S. On October 26,1883, upon the petition of John H. Goldbeck and R. A. Wilkinson representing that Brooklyn street, from Myrtle street to Hutton street, was upon the confirmed plans of the city of Philadelphia, that the state of the . improvements in the neighborhood was such as to require the opening of said street, and praying for the appointment of a jury of view, jurors were duly appointed, who on February 14,1884, filed a report showing due proof of service of notices, meetings and continuances, and that, “ after due consideration of the subject and hearing the evidence submitted, the undersigned find and so report that Brooklyn street, from Myrtle street to Hutton street, ought now to be opened, and that public necessity requires that the same should be done.” On March 24,1884, the city of Philadelphia filed the following exceptions: 1, 2. Because the jury erred in reporting that the public ' necessity required the opening of said street between the points named, and in not reporting that the public necessity did not require such opening. 3. Because the jury erred in not performing the duties imposed upon them by virtue of an act entitled “ A supplement to an act relating to roads, highways and bridges, relative to the appointment of road reviewers in the city of Philadelphia,” approved March 16, 1866, P. L. 224, and a further act entitled “ An act relating to the assessment of damages arising from the opening of roads and highways, and the construction of bridges,” approved May 14, 1874, P. L. 164; that is, the jury should have informed the court not only of the opinion and judgment of the viewers upon the question of the propriety of, or occasion for, the opening of the street, but also the cost incident to such opening arising from damages to private property, and upon whom the payment of such damages should be imposed, without subjecting the county to' the expense of a second jury to assess the damages separately, in order that the court might have such information as would prevent danger to the public treasury from a report in favor of the opening of the street which provides no information of the cost that may follow such opening.1 4. Because the jury decided in favor of opening said road, it became their duty to procure from the persons over whose land such road was located releases from all claims from damages that might arise from the opening of said road; or, failing to procure such releases, if it appeared to them that any damage would be sustained, it became their duty to assess the same in accordance with the provisions of the law for the assessment of damages in the county of Philadelphia, and make report thereof, and return the same together with all releases obtained to the Court of Quarter Sessions, as required by the act of May 14,1874.8 5. Because the report of the jury does not contain such statement of facts as will justify the court in exercising its discretion to confirm or reject the opinion of the viewers upon the merits of the proceeding.3 On November 22, 1884, the court, Mitchell, J., sustained the third, fourth and fifth of the foregoing exceptions, and ordered that the report filed be set aside and the petition be referred back to the same jury with instructions to proceed in. accordance with the provisions of the said act of May 14, 1874.4 After several continuances, on November 18,1885, the jurors, filed a second report finding that said street ought to be opened and that, inter alia, the property of R. A. Wilkinson, 50 feet front on Parrish or Myrtle street, was damaged to the amount of 18,888.33 and benefited by an increased valuation and the additional frontage on Brooklyn street to the amount of 1483.33, the difference between which sums was 12,850, which amount was awarded to him as damages. As a part of their report the jury set out that there had been offered in evidence, to show a dedication of Brooklyn street along the property of R. A. Wilkinson, the following deeds: R. A. Wilkinson to Washington Miller, dated July 18, 1882, for premises “110 feet front .on Myrtle by 70 feet deep on Brooklyn street; ” recorded : Deed, Washington Miller to George E. Goldbeck, dated July 19, 1882, for lot northeast corner Myrtle and Brooklyn, 14 feet on Myrtle and 20 feet on Brooklyn, being part of a larger lot conveyed by R. A. Wilkinson by deed July 18,1882, to Washington Miller; recorded: Deed, John H. Goldbeck et al., to Wm. D. Kelley, dated June 4, 1877, for small lot bounded on Brooklyn street, recorded. The report left to the court as matter of law the question whether or not the recitals in said deeds amounted to a dedication of the bed of Brooklyn street; if the court should so find and should strike out the award of damages, 13,833.83, then the benefits to be assessed against said Wilkinson were found to be $483.33. On December 24, 1885, the city of Philadelphia filed, inter alia, the following exceptions to this second report: 2. Because the jury awarded to R. A. Wilkinson the sum of $2,850. 6. Because the jury did not find that so much of the land of R. A. Wilkinson, between Myrtle and Hutton streets, as is occupied by'Brooklyn street, was dedicated to the city of Philadelphia for public use, by the descriptions in the deeds in evidence as set forth in said report.3 Subsequently, the -court, Mitchell, J., made the following decree: - And now, May 1, 1886, it is ordered, adjudged and decreed that the sixth and seventh exceptions of the city of Philadelphia to the report of the jury are hereby sustained, and so much of said report as awards to Robert A. Wilkinson the sum of $2,850 .....is hereby set aside, the court being of the opinion that upon the facts appearing in the title ■ set out in this record, the said Brooklyn street having been placed upon the public plan prior to the conveyances, that the land for which the said damages were awarded is dedicated to public use and that the said Robert A. Wilkinson.....are not entitled to claim damages for the opening of the said Brooklyn street: And it is further ordered, adjudged and decreed that the said report be and is hereby referred back to the viewers with instructions to so modify their report that the total assessment of benefits shall not exceed the total award of damages, after deducting the award to Robert A. Wilkinson of $2,850 .....in conformity with this decree.6 In accordance with said order the jury, on June 2, 1886, filed a third report, which recommended the opening of said street and assessed upon the property of R. A. Wilkinson the sum of $166.67, as benefits, and on February 19,1887, a decree was made confirming all the proceedings and ordering that Brooklyn street be opened to public use in conformity with law.7 R. A. Wilkinson then took this writ assigning that the court erred: 1-3. In sustaining the third, fourth, fifth exceptions to first report.110 3 4. In making the decree of November 22, 1884.4 5. In sustaining the sixth exception to the second report.5 6. In making the decree of May 1, 1886.6 7. In making the final decree of February 19, 1887.7