120 Pa.

Volume 120 — Pennsylvania State Reports

66 opinions

120 Pa. 1Williamsport Pass. Ry. Co. v. Williamsport (1888)
APPEAL PROM THE COURT OP COMMON PLEAS OP LYCOMING COUNTY, IN EQUITY. No. 400 January.Term 1887, Sup. Ct.; court below, No. 4 March Term 1887, C. P. in equity. On February 28,1887, the city of Williamsport filed a bill in equity against the Williamsport Passenger Railway Company, the prayers whereof were: 1. That an injunction may issue, temporary until hearing and permanent thereafter, restraining said company defendant, its officers, employees, agents, contractors and servants from digging up any part of West Third street, or any other street in said city, or constructing any railroad upon said street or any of the streets of said city. 2. Such further and other relief as the necessity may require and which shall seem meet. A preliminary injunction was granted as prayed for and February 28, 1887, fixed for further hearing upon its continuance or dissolution, on which day an answer was filed together with affidavits presented on each side. At the argument on March 1, 1887, the following were the undisputed facts and the positions of the parties as appeared from the pleadings and affidavits: The plaintiff, the city of Williamsport, is a municipal corporation of the fourth class, chartered under and by virtue of an act of assembly, commonly called the Wallace law, approved May 23, 1874, P. L. 230, and its several supplements. Prior to its acceptance of said act of assembly it was a city incorporated by an act of assembly which became a law January 15, 1866, P. L. 1231; before which time it was called the borough of Williamsport. The defendant, the Williamsport Passenger Railway Company, was incorporated by an act of assembly approved April 15,1863, P. L. (1864), 1080, whereby inter alia it was given power “ to lay out and construct a railway, commencing at Third and Market streets, in the borough of Williamsport, Lycoming county, and continuing westwardly along Third street or any other street in said borough, to the village of Newberry, in said county, and eastwardly through said Third streer, or any other street or streets in said borough, as may be deemed advisable by the said company, to and through the borough of Montoursville, with the right to construct branches to the main track of said passenger railway through any of the said streets of the borough of Williamsport, with single or double track, etc., etc......provided that the borough councils may, from time to time by ordinance, establish such regulations in regard to said railway as may be required for grading, cul verting and laying of gas and water, in and along said streets and to prevent obstructions thereon.” It was also provided that said company in constructing its said road should “ conform to the grades now established, or hereafter to be by law established, of the several streets, roads, or avenues traversed by said road.” Pursuant to this authority the company defendant organized, laid out and constructed a railway commencing at Third and Market streets in said borough, thence westwardly, in the direction of the village of Newberry, by Third street to Pine street, by Pine street to Fourth street, and by Fourth street to a point near its intersection with the Philadelphia and Erie Railroad, and from the starting point at Third and Market streets eastwardly, in the direction of the borough of Montoursville, on said Third street, to a point near its intersection with the Philadelphia and Erie Railroad. The company also constructed branches on Campbell street and Herdic street, and expended large sums of money in the construction, repair and maintenance of its road, and has had the same in operation since the year 1864, but has not since that time built any extensions of its main lines or branches into or through any other streets or parts of streets of said borough, now city. On February 9, 1887, the company defendant determined to lay additional branches to its main line in streets not heretofore occupied by it, and entered into contracts with competent parties to furnish all material and do said work, in pursuance of which the company incurred considerable expense and liability, and on the 21st day of February, 1887, proceeded to place its rails upon and along the streets it intended to occupy by other proposed branches. After giving the company notice not to put its rails on said streets nor proceed with said work, the city of Williams-port filed her bill in equity in this case, wherein, it was charged: That said company defendant holds its charter subject to section 9 of article XVII. of the constitution of 1874, and section 16 of an act to provide for the incorporation and government of street railway companies in cities of the third, fourth and fifth classes, etc., approved May 23, 1878, P. L., Ill, which sections of the constitution and act of assembly are in the same words as follows: “No street passenger railway shall be constructed within the limits of any city, borough or township, without the consent of the local authorities thereof.” It was further charged in said bill that the company defendant had not obtained the consent of the local authorities of the city of Williamsport to construct its proposed extensions ; that without such consent the occupation of its streets by said company would be unlawful, and therefore would be a public nuisance, etc. The answer substantially admitted the facts stated in the bill. It admitted that defendant had not obtained the consent of the local authorities of the city, and averred that such consent was not necessary. It denied that the construction of said branches would be without authority of law, etc., but averred that the defendant had lawful authority to construct said branches, and therefore that such occupation of the streets would not be a public nuisance, wherefore it was prayed that plaintiff’s bill be dismissed, etc.
120 Pa. 14Tracy v. Pomeroy Bros. (1888)
ERROR TO THE COURT OE COMMON PLEAS OE BRADFORD COUNTY. No. 38 July Term 1887, Sup. Ct.; court below, No. 413 December Term 1884, C. P. On October 24, 1884, a summons in debt was issued by Horace Pomeroy and S. W. Pomeroy, doing business as Pomeroy Brothers, against Walter G. Tracy. At the .trial on March 28, 1887, it was made to appear that the Towanda Eureka Mower Co. was indebted to Pomeroy Brothers on a note dated January 3, 1877, for $5,000, drawn payable to the order of O. D. Bartlett and indorsed by O. D. Bartlett and John F. Means. On January 6,1877, O. D. Bartlett assigned to Pomeroy Brothers $5,000 of a certain judgment of $10,000 which he held against John S. and S. D. Madden, as collateral security for the payment of said note. On April 16, 1877, Walter G. Tracy executed and delivered to Pomeroy Brothers the following paper : Whereas, Pomeroy Brothers are the holders of a certain promissory note, made by the Towanda Eureka Mower Company, to the order of O. D. Bartlett, at 90 days, for the sum of $5,000, and indorsed by the said O. D. Bartlett, which note was dated January 8, 1877; and whereas said Pomeroy Brothers hold the assignment of a portion of a judgment against J. S. and S. D. Madden, as collateral security to said note; and whereas said Pomeroy Brothers desire further security on said note, now, in consideration of said request, and the sum of $1.00 to me in hand paid, the receipt whereof is hereby acknowledged, I hereby promise to pay to said Pomeroy Brothers any sum which they may fail to collect on said note, or from said collateral, not exceeding, in the whole deficiency which I am to make up, the sum of $500 with interest from this date. Witness my hand and seal the 16th day of April A. d., 1877. W. G. Tbacy. [Seal.] It also appeared that on July 8, 1879, John P. Means, the second indorser on said note, being also indebted on a like note to one It. O. Smith, in consideration of a release from further liability upon said two notes, gave to Pomeroy Brothers and Smith a bond and mortgage secured upon about 40 acres of land in Towanda township worth $1,750 or $1,800, conditioned for the payment of any balance upon said two notes not collected from said O. D. Bartlett and the Towanda Eureka Mower Company within two years from date. Judgments were obtained by Pomeroy Brothers upon the note for $5,000 against the Towanda Eureka Mower Company and O. D. Bartlett, but, though pressed to insolvency all that could be realized from these defendants was the sum of $298. In 1882, Pomeroy Brothers issued execution upon the judgment assigned to them against John S. and S. D. Madden, levied upon and sold for $100 certain real estate as the property of the defendants, and, after a rule to set aside the sale at the instance of Mrs. J. S. Madden, claiming title, was discharged, they received the sheriff’s deed for said real estate. They then brought ejectment against Mrs. J. S. Madden and her husband, to recover possession of the land purchased. When the suit came on for trial before arbitrators it was settled, and, by an agreement in writing filed, the award was in favor of Mrs. Madden for the land, she and her husband executing a mortgage to Pomeroys for $3,250, afterwards paid to them, when they assigned to Mrs. Madden their interest in the judgment against J. S. and S. D. Madden, formerly assigned to them as collateral security. In 1883, upon a judgment obtained upon the bond and mortgage given by John F. Means to Pomeroy Brothers and R. O. Smith, the land bound thereby was sold at sheriff’s sale and purchased by the mortgagees for $50, the interest of Pomeroy Brothers in the purchase being five twelfths, testified to be worth about $750. The court, Mobbow P. J., after referring to the foregoing facts charged the jury: [Mr. S. *W. Pomeroy testifies that tiffs $3,250 is all that they ever obtained upon this Madden judgment; that that settlement was as good as could be made, and that he considered the Madden judgment, on account of Mrs. Madden’s claim to this land perfectly worthless.] 7 At the time of making this settlement with Mrs. Madden, and as a part of the consideration therefor, Pomeroy Brothers assigned to her their interest in this judgment against J. S. and S. D. Madden, which had formerly been assigned to them by O. D. Bartlett as collateral security. Pomeroy Brothers also obtained from John F. Means, who was a subsequent indorser to Bartlett on the note of January 3,1877, a bond and mortgage for $10,000 on 40 acres of land lying in the township and borough of Towanda. Judgment was afterwards obtained on this mortgage, and this 40 acres of land was sold and bid off for $50 by the Pomeroys and R. O. Smith. [Mr. Pomeroy testifies that they own five twelfths of that land, and that R. O. Smith owns seven twelfths, and that he considers the five twelfths owned by the Pomeroys worth about $700 or $800. Whatever this value is, the Pomeroys are bound to apply it on this indebtedness against the Eureka Mower Company. If you put the value of their share of this land at $750, then the Pomeroys have received, according to their own statement, upon this indebtedness, $298 from the sale of the Eureka Mower Company’s property, $750 from this John F. Means mortgage, and $3,250 from the Madden settlement, making in all about $4,298 which they have realized upon this loan of $5,000 made to the Towanda Eureka Mower Company in 1877. Adding interest to this $5,000 since 1877, and taking from the amount the different sums which the plaintiffs admit to have been paid, there would still remain due and unpaid at this date something like §2,000, or much more than the amount of the paper in suit.]8 And the defendant has offered no evidence to contradict the statements of Mr. S. W. Pomeroy as to the different sums which they have received. They claim that the §5,000 note not having been paid within §500 or more, they are entitled to a verdict upon this agreement of Mr. Tracy’s for §500 with interest from its date: The defence to this claim is that Walter G. Tracy, not having had any interest in this thing, and having voluntarily given this writing in suit, stands as a surety to O. D. Bartlett; thathe stands in the same relation to the Pomeroys that O. D. Bartlett did; thathe is entitled to-a re-assignment of the Madden judgment which Bartlett assigned to- the Pomeroys as collateral security, and that therefore by the Pomeroys assigning this collateral to Mrs. Madden, W. G. Tracy is released and discharged from his obligation upon this- paper, and that the plaintiffs cannot recover. [Upon this subject we say to you that if the settlement made by the Pomeroys with the Maddens was fair and honest and in good faith; if they got the full and fair value of this collateral and applied it upon their indebtedness, then the defendant would not be released by their action, and they may recover, providing they have not already received their pay. If, however, this settlement was not fair and honest and in good faith; if they did not obtain the full value of their collateral, and W. G. Tracy had been damaged thereby, then he would be entitled to have all such damage deducted from the plantiff’s claim in this case.]9 You have heard the evidence in this case as to the insolvency of the Towanda Eureka Mower Company, and of O. D. Bartlett and the claim of Mrs. Madden to this land, and [it is for you to say whether, under all the circumstances, the action of the Pomeroys has been in good faith, and for the best interests of all concerned in making the arrangements and settlements which have been shown by the evidence. The defendant has offered no evidence tending to show that the Madden judgment was of any value whatever.]10 The defendant’s counsel has submitted certain points in writing, requesting us to charge you as follows: 1. The assignment by Pomeroy Brothers to Elizabeth Madden of their interest in the judgment against J. S. and S. D. Madden, which had been assigned to them by O. D. Bartlett as collateral security for the note of the Towanda Eureka Mower Company, indorsed by said Bartlett and John F. Means, was a conversion of it to their own use, and they are chargeable with its full value. Answer: This point is refused, under the evidence in this case.3 2. If the jury believe Pomefoy Brothers released their interest in the Madden judgment which they had obtained as security for their indebtedness against O. D. Bartlett, without the consent of Walter G. Tracy, who is the surety of the said Bartlett, said release operates as a discharge of said Tracy from all liability therefor, and therefore the plaintiffs cannot recover in this case. Answer: Refused.4 3. The acceptance by the Pomeroy Brothers from John F. Means of his bond and mortgage dated July 8, 1879, given to them and R. O. Smith to secure the payment, inter alia, of the note of the said Towanda Eureka Mower Company, indorsed by said Bartlett and said Means, and the agreement contained in the said bond that the said Means was to be released from further liability upon said note, and the subsequent sale of the mortgaged premises upon said mortgage, satisfied said Pomeroy Brothers’ indebtedness against said Means, and released Walter G. Tracy, the surety of said Bartlett. Answer: Refused.5 4. If the jury believe Pomeroy Brothers released John F. Means from further liability upon said note of the said Towanda Eureka Mower Company, when they accepted his said bond and mortgage without the consent of Walter G. Tracy, said release operated as a discharge of said Tracy and the plaintiffs cannot recover. Answer: Refused.6 The verdict, of the jury was in favor of the plaintiffs for $797.50, and, judgment being entered thereon, the defendant took this writ assigning for error, inter alia : 3-6. The refusal to affirm the defendant’s points.3 t0 6 7-10. The parts of the charge embraced in [ ] 7 4010
120 Pa. 24Brown v. Williams & Cloak (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 36 January Term 1888, Sup. Ct.; court below, No. 75 December Term 1885, C. P. No. 2. On March 9,1886, a scire facias issued upon a mechanics’ lien entered by Lemuel L. Williams and John H. Cloak, trading as Williams & Cloak, against Samuel H. Brown, owner and contractor. At the trial on April 7, 1887, it appeared that the plaintiff’s claim was filed for a balance of $129 claimed to be unpaid for the laying of the bricks of four new houses erected for the defendant on Kensington avenue. These houses, as others erected at the same time on Ruth street, were begun early in July, 1885, and completed on October 3,1885. When the plaintiffs’ case was closed it was shown that the houses were being erected for sale, and that the defendant had had two releases of liens prepared, one for the Ruth street houses and one for the Kensington avenue houses. All the mechanics and material men, and among the others, the plaintiffs, signed the releases. The plaintiffs signed that relating to the Kensington avenue properties on August 1, 1885, when the first stories only were erected. The work and materials for which the balance was claimed were performed and furnished after that date. The defendant offered the following release in evidence, signed by the plaintiffs, August 1,1885 : Whereas, we, the subscribers, have erected and furnished materials for erecting four brick dwellings and stores, on a lot or piece of ground situate on the eastwardly side of Kensington avenue,.....for Samuel H. Brown, owner and contractor, and have agreed to release all liens which we or any or either of us have or might have on the said buildings by reason of materials furnished- or work performed for erecting the same. Now, these presents witness that we, the subscribers, for and in consideration of the premises, and of the sum of one dollar to each of us, at or before the sealing and delivery hereof by the said Samuel H. Brown, well and truly paid, the receipt whereof we do hereby acknowledge, have remised, released and forever quit-claimed, and by these presents do remise, release and forever quit-claim unto the said Samuel H. Brown, and to his heirs and assigns, all and all manner of liens, claims, and demands whatsoever which we or any or either of us now have or might or could have on or against the said buildings and Samuel H. Brown and premises for work done or for materials furnished for erecting and constructing the said buildings, or otherwise howsoever; so that he, the said Samuel H. Brown, his heirs and assigns, shall and may have, hold and enjoy the said buildings and premises freed and discharged from all liens, claims and demands whatsoever which we or any or either of us now have or might or could have on or against the same if these presents had not been made. In witness whereof we have hereunto set our hands and seals the day of the date written opposite our respective signatures. This offer was objected to as irrelevant, because all the work claimed for was done after the date of the release. Objection sustained and evidence excluded. The defendant admitted he owed the plaintiffs $29. The court, Mitchell, J., submitted to the jury the evidence as to whether the balance claimed had been paid or not. The yerdict of the jury was in favor of the plaintiffs for 1187, being the plaintiffs’ claim with interest. Judgment having been entered, the defendant took this writ, assigning as error, inter alia, the refusal to admit said release in evidence.
120 Pa. 28Homœopathic Ass. v. Harrison & Bro. (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY. No. 61 January Term 1888, Sup. Ct.; court below, No. 28 June Term 1887, M. L. D. On June 26, 1887, William H. and Charles H. Harrison, trading as W. H. Harrison & Brother, filed a claim for lien against the hospital buildings, lot of ground and appurtenant curtilage, in the Twenty-eighth ward of Philadelphia, the property of the Women’s Homoeopathic Association of Pennsylvania. The bill of particulars attached embraced items for work and labor done and materials, to wit: tin flues, ranges, registers, hearths, grates, etc., furnished continuously, as was averred, from August 31,1885, until May 27, 1887, at the special instance and request of George McNichol & Son, with whom the contract of the claimants was made, towards the erection and construction of said buildings and upon the faith and credit thereof. The last entries on the bill of particulars were as follows, abbreviated: October 30, 1886. 1 Range, etc., . . . $59.15 March 9, 1887. 2 Soapstone Hearths, . . 18.50 May 27, 1887. 1 Laundry Stove, etc., . 25.00 Total,......$3,169.96 Credit. By cash, . . $1,279.92 “ 2 Soapstone Hearths, 18.50— 1,298.42 Balance claimed, .... $1,871.54 On J uly 11, 1887, the claimants issued a scire facias upon the foregoing claim. An affidavit of defence, executed by the treasurer of the defendant corporation, filed on September 19, 1887, averred, inter alia : That the only items of labor or material done or furnished within the period of six months next before the filing of the claim and included therein, were the two soapstone hearths and the laundry stove, and “ that as a matter of fact the two hearths so charged in said bill were furnished by plaintiff gratuitously to supply the places of two other defective hearths of similar size and value (if perfect), which plaintiffs had furnished and charged for more than six months before the filing of said claim, and was simply material furnished by plaintiff to make good their own prior charge ; that the said charge of March 9th, and the balancing entry of a credit of the same amount, are therefore entries made merely for convenience in bookkeeping, and do not represent such a transaction as would extend the time for filing the lien ; that the laundry stove and piping charged as of May 27, 1887, is a small portable stove for heating flatirons, with the necessary stove-pipe for connecting it with the brick chimney; that it is in no sense any part of the building, nor was it used or intended to be used in the construction or erection thereof; that it is an ordinary piece of personal property, and is as much adapted for use in one laundry as in any other.” On October 1, 1887, a rule for judgment for want of a sufficient affidavit of defence was made absolute, Biddle J., without opinion filed, and judgment was entered for the plaintiffs for $1,901.48. Thereupon the defendant took this writ, assigning the order directing the entry of said judgment as error.
120 Pa. 33Appeal of Baker (1888)
FROM THE DECREE OF THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 183 January Term 1888, Sup. Ct.; court below, No. 298 January Term 1884, O. C. On January 20, 1887, an account was filed by Charles C. Baker, entitled the first partial account of Charles C. Baker, George W. Baker and Caroline Haman, trustees of Anna M. Deal, under the will of George Baker, deceased, in which the accountants for amounts awarded by the Orphans’ Court out of the estate of George Baker, deceased, were Charged, June 12,1884, ..... $201.02 November 10,1884, .... 1,741.33 Interest,.....$111.36 Credited, various payments and expenses, 106.15 Balance for distribution, . . $5.21 Amount of principal, . . . $1,942.35 ' On March 11, 1887, this account was called for adjudication before Penkose, J., whose opinion, filed on March 25, 1887, clearly showing the questions of fact and law appearing and decided, was as follows: Though in the name of three persons as trustees, the account is actually that of Charles C. Baker and Caroline Haman only; George W. Baker, the other person mentioned, having had nothing to do with its preparation or filing, and his position being antagonistic to that of the other two. The trust to which it relates arises under the will of George Baker, who died April 25, 1882. The will, which was proved May 8th, of that year, directs the conversion of his residuary estate, real and personal, at such times and in such manner as his executors should deem most advantageous to the interests of the estate; the proceeds tó be divided into eight shares, of which one should be given to each of Ms children, Caroline Haman, Charles C. Baker, Julia E. Castor, George W. Baker, and Abram Baker; one to his executors in trust for Ms stepson John R. Rausch for life, with remainder to the children of Ms said step-son; one to the executors in trust for Ms grandson Harry C. Baker until his arrival at the age of twenty-one years, and then to his said grandson absolutely; and one to his executors in trust for his daughter Anna M. Deal for life, with remainder to her children in equal shares. The trusts were substantially in the same terms; that for Mrs. Deal being as follows : “ One other full equal one eighth part thereof I order and direct my said executors or the survivor of them to put out and place the same at interest on good real estate or other sufficient security, as they shall think best and proper, and to pay over the interest, income and profit arising therefrom from time to time when and as often as the same has been gotten in and received by them unto my beloved daughter, Anna Maria Deal, wife of Charles Deal, for her sole, separate and exclusive use and benefit, for and during all the term of her natural life; and from and immediately after the time of the decease of the said Anna Maria Deal, then I give and bequeath the said one full equal one eighth part of my said residuary estate unto the children of said Anna Maria Deal then living, their heirs and assigns.” The executors named were Caroline Haman, Charles C. Baker and George W. Baker, all of whom joined in taking out letters testamentary. In March, 1884, the executors sold a tract of about ten acres of the real estate of the testator for $13,607.10 and soon after filed their first account. This account was duly adjudicated in May, 1884, and the balance remaining after payment of debts, etc., awarded in accordance with the terms of the will. The amount awarded to the executors in trust for Mrs. Deal was $201.03 ; similar amounts being awarded to them in trust for John R. Rausch, or as he was also called, Baker, and for Harry C. Baker. The sum awarded in trust for Mrs. Deal was retained by Mrs. Haman, one of the executors, and used in her business, she agreeing to pay to the cestui que trust six per cent, interest. The shares belonging to the trusts for J ohn R. Rausch and Harry C. Baker were retained by Charles C. Baker, and blended with his own moneys. In October, 1884, a petition was presented to the court by Ellwood P. Wright, setting forth that the petitioner had ol> tained judgment against the executors as garnishees of George W. Baker, for $1,476.52; that they refused to sell the remaining real estate of the testator (about twenty-eight acres), though, in the opinion of the petitioner, it was to the best interests of the estate that it should be sold; and that George W. Baker, the defendant in the judgment was also one of the executors. The prayer was for an order upon the executors to forthwith offer the said real estate for sale. The petition was demurred to, on the ground that the discretionary power of the executors with regard to the time and manner of sale could not be interfered with by the court, and that in their judgment it was not to the best interests of the estate to make the sale at that time. The demurrer was overruled, with leave to answer; and no answer having been filed, a decree was entered as follows: “And now, December 6, 1884, at an Orphans’ Court this day held for the county of Philadelphia the parties petitioner and respondents appear by their respective counsel, and counsel for respondents says that he has no further answer to make to said petition; whereupon after due consideration the court do order and direct that the said executors do forthwith proceed to sell all the remaining real estate of the said George W. Baker, deceased, at public auction after due and full advertisement, with notice to petitioner’s counsel, in the usual manner. And it is further ordered that all persons in interest be permitted to bid at such sale, including such executors. Due return of sale to be made to the court” The sale so ordered took place January 28, 1885. The property was purchased by George W. Haman, “ in trust to convey the same to Charles C. Baker, Carohne Haman and Juba E. Castor, their heirs and assigns,” for $18,900. Return was, duly made, and the sale was confirmed March 18, 1885. An account of the proceeds of this sale was filed April 29, 1885, showing a balance in the hands of the accountants of $13,349.11. By the adjudication of this account, $1,741.32 each, were allowed to the executors in trust for Anna M. Deal, for John R. Rausch, for Harry C. Baker, to Carobne Haman, to Juba E. Castor and Charles C. Baker; and the shares of George W. Baker and Abram Baker, as follows: To executors of Thomas Castor, attaching creditors of George W. Baker, $284.79; to Conrad Urban, attaching creditor of George W. Baker, $310.44, and to Charles C. Baker, assignee of George W. Baker, $946.10. To Conrad Urban, attaching creditor of Abram Baker, $310.45, and to Charles C. Baker, assignee, $1,030.87. Exceptions to the abowance to Charles C. Baker, as assignee of George W. Baker and Abram Baker, filed by EUwood P. Wright and Wilham C. Hutchinson, attaching creditors, were sustained by tbe court in banc and the amount so allowed, aggregating $1,976.97, awarded to the exceptants. Upon appeal, this decree was affirmed and the record remitted April 6,1886. The adjudication had been filed July 3,1885 .....In the account, the accountants were debited with the receipt of the proceeds of sale March 14, 1885. The property for which Mrs. Haman, Mrs. Castor and Charles C. Baker thus paid, or professed to pay $13,900 was sold by them to Disston & Company in February, 1887, for $28,000, out of 'which they paid to the agent effecting the sale $500, leaving a profit of $13,600. The present account debits the accountants (Mrs. Haman and Charles C. Baker, being as already stated, the real accounting parties) with the $201.01 awarded by the adjudication of May, 1884, and the $1,741.33 awarded by the adjudication of July 3,1885, with interest from the date of the alleged receipt of the sums to November 10, 1886, at five per cent. Mr. Finletter on behalf of Mrs. Anna M. Deal, asked that they should be surcharged with the share of the profits received upon the re-sale of the property to Disston & Company; basing the claim, first, upon an alleged express agreement and second, upon the relation of trust existing between the parties. After the sale had been ordered by the court upon the petition of Ellwood P. Wright, the attaching creditor of George W. Baker, a meeting of the family took place for the purpose of considering what course should be pursued with regard to the sale. According to the testimony of the witnesses called by Mr. Finletter, it was then agreed that the property should be bought by Mrs. Haman, Mrs. Castor and Charles C. Baker and held for the common benefit. According to some of these witnesses, there was an agreement in writing setting forth how the intended purchase was to operate, but the terms of this paper, if it ever existed, were not recollected, and no such paper was produced. On the other hand, Mrs. Haman and Charles C. Baker swore positively that no agreement, such as alleged, either in writing or by parol, was ever entered into, and that the purchase was for the exclusive benefit of the persons named as purchasers. Mrs. Castor would doubtless have testified to the same effect, but pending the proceedings before the auditing judge and before she could be called as a witness, she was taken sick and was compelled to leave the court room. If the parties stood to each other in the relation of strangers, the auditing judge would be compelled to hold that the evidence was insufficient to establish an express trust, and the claim to surcharge would have to be refused. So too if the case was merely that of a purchase by executors at their own sale. The sale was under the order of court in (apparently) an adverse proceeding with permission to the executors to bid, and with a subsequent confirmation by the court: such a purchase, under the doctrine recognized in Pennsylvania, in Fisk v. Sarber, 6 W. & S. 27; Chorpenning’s Appeal, 32 Pa. 315, must be conceded to be valid, especially as against persons participating in their own right, by themselves or their creditors, in a subsequent distribution of the proceeds. A purchase by a trustee is voidable, not void: and a receipt by the beneficiary, under no disability, and with full knowledge of all the facts, of his share of the purchase money, may operate as a ratification, and estop him from questioning its validity. Such estoppel, however, could not arise in the case of Mrs. Deal, or of the other persons whose participation in the proceeds of the sale was only through the executors themselves in their capacity as trustees. But the executors were not executors merely. When their functions as executors ceased, their duties as trustees for the shares which were directed to be held in trust began, and this relation created a new disability in the way of their becoming purchasers. The principles with regard to trustees are familiar and perfectly well settled. The law exacts the most unswerving fidelity to the cestuis que trustent, and without regard to honesty of motive, will not permit the trustee to derive in any manner a profit or personal advantage from the trust property, and this even though the advantage would be lost if not taken by him; as in the case of a renewal of a lease which the lessor had refused to the cestui que trust: Featherstonhaugh v. Fenwick, 17 Vesey 298; Perry on Trusts, § 196; Johnson’s Appeal, 115 Pa. 129. Whatever can be gained by the personal effort of the trustee belongs to the cestui que trust. “ The trustee cannot use the trust property, nor his relation to it, for his own personal advantage. All power and influence which the possession of the trust fund gives, must be used for the advantage and profit of the beneficial owners, and not for personal gain or emolument of the trustee. No other rule would be safe; nor would it be possible for the courts to apply any other rule as between trustee and cestui que trust:” Perry on Trusts, § 427, citing many authorities. In the present case, the necessity for the sale arose solely from the attachment of the shares of two out of eight distributees. The value of the entire property being fixed by the sale for $13,900, $3,475, or two eighths, was the utmost that was required for the preservation of the estate to the remaining six owners; and before the sale took place the accountants had ascertained, as the evidence shows, that they could raise $4,500 by mortgage of the property. There can be no doubt, if application had been made to the court, that specific authority to the trustees to unite with the other owners in thus raising the money and taking the property at the amount of the bid would have been given, if indeed it was not already conferred by the permission in the decree ordering the sale “ to all persons in interest ” to become bidders; the trustees were certainly included in the language thus used. If there was any doubt upon this subject, it was not too late after the property had been struck down to the accountants and Mrs. Castor, to make an application on behalf of the cestuis que trustent to the court. The price was a low one; somewhat larger, it is true, than the assessed value ($11,200), but $1,100 less than the amount to which the purchasers had agreed to go; far less than the price at which the adjoining property had sold the year before, and less than one half of what this very property has since, within two years of the sale, been disposed of for. Can it be possible, under these circumstances, that trustees without making an effort to secure the interests of their cestuis que trustent, may avail themselves of opportunities furnished by the property itself to become the purchasers, and hold for their own exclusive benefit ? There was evidence that Charles C. Baker made efforts to deter bidders at the sale, by representing that he intended to buy in for thejlamily. It is true this is positively denied by him, but one thing is certain: The decree gave leave to the “ executors ” to purchase; Mr. Stover was known to be counsel for the executors; and the bidding was by. him. Persons attending the sale, therefore, would naturally assume that he was acting for the executors as the representatives of the family, and would as a consequence, refrain from bidding against him. Thus an additional advantage would be gained to the prejudice of the cestuis que trustent. But there was much more than this. Though the amount of the bid, $13,900, was debited in the account of April, 1885, as received March 14, -1885, the only money actually paid by the purchasers was the $500 required by the conditions of sale to be paid to the auctioneer, and the $4,500 which, at some time subsequent to the deed to them, were raised on mortgage in pursuance of the understanding, already referred to, made with the mortgagee prior to the sale. The purpose of this mortgage, as testified by Mrs. Haman and the husband and agent of Mrs. Castor, was merely to raise money to pay the creditors attaching the shares of George W. Baker and Abram Baker. Not a dollar was paid for the trusts for Mrs. Deal, Johu R. Rausch or Harry C. Baker. Even after the adjudication of July 3,1885, had specifically awarded payment, no money was paid for these trusts. During all this time, if judgments had been obtained against the purchasers, if their ownership was to the exclusion of the cestuis que trustent; the property might have been swept away and the cestuis que trustent cut out altogether. It was not until November, 1886, after Mrs. Deal had taken steps to assert her rights, that a second mortgage for $5,000 was created, and the amount awarded for her trust deposited to the credit of Charles C. Baker as trustee. From the date of the sale up to this time, no interest whatever was paid or offered to be paid to Mrs. Deal, though the will provided that her share of the estate should be placed on interest “ on good real estate or other sufficient security.....and interest, income and profits arising therefrom from time to time when and as often as the same has been gotten in and received,” paid to her. There was affirmative evidence, which was not contradicted, that Charles C. Baker, at various times when the subject of interest was spoken of, by or on behalf of Mrs. Deal, had declared that her money remained in the property and that she would participate in the profits arising from a re-sale. Apart from this evidence, however, it is apparent from what has been said, that the money belonging to the trust for Mrs. Deal remained in the property, and that the accountants availed themselves of their position as trustees to enable them to become purchasers without the payment of anything from their own pockets. The effect, therefore, in law, is precisely the same as if having the actual custody of trust funds they had used them in making the purchase. It was testified by Mr. Castor, that the only money which his wife was called upon to contribute toward the purchase was one third of the $500, paid to the auctioneer. This is true also as to Mrs. Haman and Charles C. Baker, with the important difference, that they each held, not for the cestuis que trustent but for themselves, the trust moneys awarded by the adjudication of 1884, amounting in all to more than the whole $500. It was contended by Mr. Stover that as Charles C. Baker claimed that the shares of George W. Baker and Abram had been assigned to him prior to the attachments, it was supposed that no part of the purchase money would have to be paid to the attaching creditors; and that, therefore, the hand-money and moneys raised by mortgage were sufficient to pay the shares held in trust. The assertion is in conflict with the testimony of Mrs. Haman and Mr. Foster and with the decision of the court. Mrs. .Haman said: “ Mrs. Castor, Charles and myself joined in. There was $500 paid by the three of us. Wo had to borrow the money to pay the boys’ creditors.” And how, it may be asked, would it have been possible to pay three shares, amounting in all to $5,228.99, with $5,000, even had the latter sum not been reduced by the expenses of sale and other payments credited in the final account? But as already stated, in point of fact the money was not so applied. The trust shares remained in the property, and their retention there made the purchase possible without the expenditure of a dollar of the individual means of the nominal purchasers, who now, after having so had the benefit of this use, seek to retain for themselves a profit exceeding the sum at which the property was struck down to them. If, indeed, the fact be as contended by Mr. Stover, the case assumes a still more serious aspect. If the shares of George W. Baker and Abram Baker had been assigned to Charles C. Baker before the attachments, why was the sale permitted at all ? Why, after the demurrer was overruled and leave given to answer, did the executors instruct their counsel to say to the court, as set forth in the decree, “that he has no further answer to make to said petition?” If in point of fact there had been the assignment, it would have been a complete defence ; and in this view of the case, the sale, which might have been prevented, may be said to have been procured by the executors, and the purchase by them or any of them would not be protected by the doctrine of Fisk v. Sarber, 6 W. & S. 27: Parshall’s Appeal, 65 Pa. 224. It only remains to consider what proportion of the profits belongs to Mrs. Deal’s trust. The first impression of the auditing judge was that it was one eighth, but subsequent reflection has led him to a different conclusion. The interests of George W. Baker and Abram Baker were wiped out by the executors’ sale and the award to their creditors of their shares of the proceeds. The purchase by Mrs. Hamah, Mrs. Castor ' and Charles C. Baker, without the payment of any of their own moneys except, perhaps, the insignificant sum deposited with the auctioneer, having been accomplished by the retention of the shares' belonging to the several trusts, the proportions belonging to the latter are to be measured by the number of persons acquiring an interest by reason of such purchase. This will give to each one sixth. It is clear, however, so far as Mrs. Castor is concerned, that her liability cannot be enforced in the Orphans’ Court. She was not an executor or trustee; and while it was held in Guillou v. Peterson, 89 Pa. 163, that a partner of an executor having knowledge of the use of trust property for the benefit of the firm was liable to the cestui que trust, the question as to her can only be considered in the Court of Common Pleas. And hence, it follows, the accountants can only be surcharged with the share of the profits actually received by them; Seguin’s Appeal, 103 Pa. 139; Vyze v. Foster, 8 L. R., Ch. Ap. 309; s. c. upon appeal, L. R. 7 H. L. 318. The property having been bought in for $13,900, and sold for $28,000, less a commission to the broker effecting the sale of $500, the entire profits were $13,600, of which two thirds, $9,066.66, were received by the accountants, Mrs. Haman and Charles C. Baker. One sixth of this sum, $1,511.11, is the proportion belonging to Mrs. Deal’s trust, and Mrs. Haman and Charles C. Baker will be surcharged as her trustees accordingly. No part of the moneys mentioned in the account or arising from the resale, has ever come into the hands of the accountant George W. Baker. The account will be restated as follows:— Dr. Principal Account. 1884, June 12, To amount awarded by adjudication of first account........... $201.02 1885, Nov. 10, Amount awarded, but not paid by second adjudication......... 1,741.33 1887, Share of profits on re-sale received by Mrs. Haman and Charles C. Baker as above . . 1,511.11 3,453.46 Cr. By one sixth of deposit at sale ..... 83.33 $3,370.13 As against this amount Mrs. Haman and Charles C. Baker are entitled to credit for the proportionate part of taxes, etc., upon the property, accruing between the date of the purchase and the final sale, unless rents were received during this time, in which case the payment so made will be credited against such rents, and the accountants charged in the income account with the proportionate share of Mrs. Baker of the next balance, estimated upon the above basis. [Here follows an incomplete income account.] Should the above account, when completed, show a balance of income in the hands of the accountants, it will be paid to Mrs. Anna M. Deal; should the balance be found due the accountants, it will be paid out of the future receipts of income. The information necessary to enable the auditing judge to complete the foregoing restatement of account will be furnished to him by the accountants within ten days from the filing of the adjudication; and, unless so furnished, the statement of counsel from the exceptant will be received as correct. The balance of principal fund as above will be invested as directed by the will of the testator, and held the purposes of the trust. It is ordered and adjudged that the account as restated be confirmed nisi upon payment of clerk’s fees, and that the principal be held and the income applied as hereinabove directed. Since filing the foregoing adjudication, the auditing judge has been informed by Mr. Stover that the assignments alleged to have been made to Charles C. Baker by George W. Baker and Abram Baker were not for their interests, but simply, in the one case, for $1,604.70 .and in the other for $1,875. These sums it is true, with amounts due to creditors whose attachments were admittedly prior to the alleged assignments, are considerably in excess of the shares of the assignors in the price at which the property was sold in January, 1885; but as it could not have been said in advance of the sale what the price would be, such partial assignments of course, would not have furnished an answer to the petition by the attaching creditors for the order of sale. Injustice, therefore, has been done Mr. Stover in asserting that it was in the power of the executors to have prevented the sale. The result, however, is not changed by striking out all that is said in the adjudication upon this subject. The fact still remains that the trustees availed themselves of their position as such and of their control of the shares of" their cestuis que trustent to purchase the property without the payment of anything from their own means beyond the amount deposited to the auctioneer, and without any effort on their part to secure the benefit of the purchase for the cestuis que trustent. This, as the adjudication shows, is quite sufficient to prevent them from excluding the cestuis que trustent from a participation in the profits derived from the transaction. Various exceptions, filed to the foregoing adjudication by Charles C. Baker and Caroline Haman, alleging error in surcharging the accountants with any sum whatever, came before the court in banc for hearing and on May 28, 1887, Were disposed of by an opinion by Hanna, P. J., which after a recital of facts proceeded: About February, 1887, the purchasing executors sold the tract of land which they ostensibly purchased for $13,900 to Messrs. Disston & Co., for $28,000, out of which they paid their agent for effecting the sale $500, thus leaving a profit of $13,600. If when they purchased the land at the sale ordered by the court they had actually paid in cash the proportion due their cestuis que trustent and upon the settlement of their account, set apart and invested the awards to them as trustees, they then would have shown their good faith in the purchase, which by the decree of the court they were authorized to make. They were not bound to pay into their hands as executors the amount of their own distributive shares, unless needed for payment of debts or incumbrances upon the land, but it was their duty as purchasers, to pay and be prepared to account for, the remainder of the purchase money in cash. And having neglected this a duty even up to the date of the final confirmation of their account, and the decree of distribution, and retained the amount in the land they purchased, by their subsequent sale to Messrs. Disston & Co. at a large profit, we have clearly and undeniably a case of trustees speculating with money of their cestuis que trustent. And when they account to their cestuis que trustent they conceal their profitable speculation, and say that all they have in their custody and trust for her, is her share of the original sum of $13,900, which they professed to have received in March, 1885, but which they never did actually pay to themselves as trustees. If such dishonest and fraudulent conduct and practices by those acting in the sacred trust and confidence of fiduciaries, be permitted to pass unnoticed and unpunished, justice is indeed blindfolded. The conduct of these trustees cannot be justified upon any pretext. They cannot even shield themselves behind the too common plea of ignorance, which would be of no avail. Nor were they without the advice of learned and able counsel; and they cannot be permitted to take to themselves the profit of their venture with moneys not their own. That this is the well settled principle of law and common justice needs no authorities to establish. Whatever is lost by a trustee in dealing with moneys of his cestui que trust must be borne by himself; and whatever is gained, belongs to his cestui que trust. “ The trustee cannot use the trust property nor his relation to it for his own personal advantage. All the power and influence which the possession of the trust fund gives, must be used for the advantage and profit of the beneficial owners, and not for the personal gain or emolument of the trustee. No other rule would be safe; nor would it be possible for courts to apply any other rule as between trustees and cestui que trust;” Perry on Trusts, § 427, cited by the auditing judge. Trustees who mingle moneys of the estates with their own, and use the same in their own private business, will be charged with interest or profits as may be claimed, and deprived of their commissions: Robinett’s Appeal, 36 Pa. 174; Seguin’s Appeal, 103 Pa. 139; Ashton’s Estate, 18 W. N. 102; Williamson’s Estate, 18 W. N. 138; Waylan’s Estate, 1 Pa. C. C. R. 366. The duty of trustees is a joint one and each is responsible for the neglect of the other: Weigand’s Appeal, 28 Pa. 471; Hilles’s Estate, 13 Phila. 402. And as Clark, Justice, says, in McLaughlin v. Fulton, 104 Pa. 171: “ If the fund in its original state was covered with a trust .... no change of that state can divest it of the trust, and in accordance with this principle equity will follow the fund through every transmutation for the benefit of the cestuis que trustent.” Without further addition to what is so well said by the auditing judge, we think from the facts appearing in evidence it is clearly established that the trustees are liable to account to their cestui que trust for her proportion of the profit realized in the sale to Messrs. Disston & Co., and they are properly surcharged therewith. The exceptions are dismissed and adjudication confirmed. Thereupon the exceptants took this appeal assigning in several specifications that the court erred in not sustaining the exceptions filed to the adjudication.
120 Pa. 49Reno v. Moss (1888)
1. When, in an ejectment, the plaintiff rests his title upon an alleged parol contract oí sale of the property in dispute, ho is seeking in effect a decree of specific execution and the burden is upon him to show, (a) a contract complete in its terms and, (6) such partial performance, including a taking of possession in pursuance of the contract, as would make it unjust and inequitable not to execute it. 2. These requirements must be shown by evidence that is clear, unequivocal and convincing, such as to satisfy fully the conscience of a chancellor ; for, to he in doubt as to the existence or the sufficiency of the contract is to he resolved against its specific execution, and, the ejectment being hut a substitute for a bill in equity, the trial judge should withdraw the evidence from the jury, if, sitting as a chancellor, he would regard it as insufficient for a decree. 3. The plaintiff in an ejectment, alleged a parol sale to Ilenry, his ancestor, by Miller, the defendant’s grantor, and, with evidence of possession taken by Henry contradicted as to character of the payment by Henry of a note for @2,260 to Miller and of a purchase money mortgage made by Miller to his own grantor, offered as the only evidence of the contract and its terms a paper of the same date with said note, as follows : “ Received of Joseph Henry §2,260 as payment in full for house No. 228 North Sixth street, [signed] Daniel Miller.” This receipt being attacked by evidence preponderating largely against its genuineness and leaving its character involved in uncertainty: Held, that the evidence was insufficient to justify a verdict for the plaintiff and it was error to submit the question to the jury: See Hess v. Calender, post, 138.
120 Pa. 69Seeley v. Welles (1888)
EEROS TO THE COURT OE COMMON PLEAS OF BRADFORD COUNTY. No. 402 January Term 1887, Sup. Ct.; court below, No. 968 May Term 1886, C. P. On May 1,1886, an appeal was filed by tbe defendant from tbe judgment of a justice of the peace in favor of R. M. Welles against I. J. Seeley. At the trial on February 4,1887, it appeared that the plaintiff had sued the defendant to recover $50, the first instalment of $150, the price of an Osborne reaper and binder he claimed to have sold and delivered to the defendant in August, 1885. The reaper had been operated a few days and then returned by the defendant as unsatisfactory. The contention was whether the sale was absolute, as claimed by the plaintiff, or conditional as claimed by the defendant, who testified: “I told him I would come down and try it, and if it worked to suit me and my team could handle it satisfactorily on my land, I would buy it, otherwise I would not, and I told him I was to be the judge.” The charge of the court, Morrow, P. J., showing the material facts of the case, was as follows: The important controversy in this case grows out of the alleged sale of a reaper and binder by the plaintiff to the defendant. It seems that Mr. Welles was engaged in selling agricultural implements and that Mr. Bradley, who lives in the vicinity of Mr. Seeley, was also selling machines. Mr. Bradley and Mr. Seeley had a talk about Mr. Welles having this Osborne binder, about the third of August, and Mr. Bradley says he told Mr. Seeley that he thought Mr. Welles would sell it cheap, as it was getting late in the season. They had some talk about the price for which it could be bought, and after-wards Mr. Espy, who was in the employ of Mr. W elles, went up and saw Mr. Seeley in company with Mr. Bradley, on Friday. Mr. Espy says it was the 7th day of August. They found Mr. Seeley at work in the field, and after some conversation as to the price and the terms of sale, it was arranged that Mr. Seeley should come to Towanda and get the machine the fore part of the next week. He came, however, on Saturday, of the same week, and went to C. P. Welles’ store, and he telephoned for Mr. B. M. Welles, who came down. Mr. Welles testifies that he talked with him about buying the machine, and that if he paid 850.00 or 860.00 down he would give him a year on his note, for the payment of the balance, and that if he took the machine they would see that it worked well, and that it was upon those terms that he took the machine. On the following Tuesday Mr. McGill and Mr. Espy went up to Seeley’s place, to sot up the machine, and try it, and they both testify that it worked well. Mr. Bradley testifies to the same effect. They say they went around a nine or ten acre lot before dinner, and then unhitched and went to the house. After dinner Mr. Seeley and Mr. Espy went out of the house, Mr. Seeley sat down in the hammock, and Mr. Espy sat down near him, and they talked over how the machine worked. Mr. Bradley testifies that he went down where they were while they were talking about how the machine worked. Mr. Espy says that Mr. Seeley said he was satisfied with the way the machine worked, but that he did not want the trucks, and that it was agreed that he should have the machine, without the trucks, for 8150.00, or with the trucks, for 8160.00. In the afternoon Mr. Seeley got another horse, and they went up to the field again, and cut around the piece. They say that there was some trouble in the working of the machine, and Espy and McGill say that it was caused by the buckwheat that stood in the oats in some places, which was green, and would not work like ripe grain, and that a shower came up, and wet the grain, so that they had to quit. The bargain as testified to by Mr. Espy, and Mr. Bradley, was that Mr. Seeley was to keep the machine, to pay 850.00 within a-few days, and give his note for 8100.00, payable in one year from September 1,1885. Mr. McGill does not claim to have heard that talk, but he says that he understood from the conversation before he came away, that Mr. Seeley was satisfied with the machine. Several witnesses have testified, on behalf of the plaintiff, as to a bargain by Mr. Seeley to go and cut Mr. Bradley’s grain. They say that the price was talked about, that Mr. Seeley thought it was worth $1.25 an acre, but that it was finally agreed that Mr. Bradley should furnish a third horse, and pay $1.00 an acre. This evidence was given by the plaintiff for the purpose of showing that the defendant had accepted the machine and considered it to be his, at that time. . On the part of the defendant he says that the agreement was that he was to have a trial of the machine, upon his own place, and if it did not operate so as to satisfy him he was not to keep it. He says there was nothing said as to whether he was to bring it back, or whether Mr. Welles was to come after it; that while the machine was in operation, both before and after dinner, he told them, all the while, that it did not perform well, and that he was not satisfied with it, and that he did not at any time agree to purchase it or keep it. He also testifies that when he took the machine both Mr. Welles and Mr. Espy told him that it would draw as easily as a plow on the same land. A few days after Mr. Espy and Bradley were there, Mr. Seeley made another trial of the. machine, going once around the lot again, and he says that it would not work, and then under the agreement as he claimed it to be, he returned the machine to Mr. Welles, in Towanda. If you believe the evidence on the part of the plaintiff, particularly of Espy and Bradley, as to what occurred at the hammock, then there was a complete contract, and the plaintiff would be entitled to recover. [If, on the other hand, you believe the evidence on the part of the defendant, that he was to take the machine and try it, and that he was not to keep it unless it worked to his satisfaction, then the plaintiff cannot recover, provided you find that the machine did not work well, and that he had reasonable cause to be dissatisfied with it. But if the machine did good work he could not say “ I have made a bad bargain, I am not satisfied,” and return the machine. In other words, there must have been a reasonable cause for his dissatisfaction, and the returning of the machine must have been in good faith.]1 You have heard the evidence of the different witnesses as to what occurred in the field before dinner, as to what occurred at the hammock, after dinner, as to what occurred in the field after dinner, and as to what occurred at the barn, where they went after the shower, and we will not stop to call your attention to this evidence in detail..... [There is a great disagreement in the testimony of the witnesses for the plaintiff and the defendant upon this subject, and you will have to determine, from all this evidence, whether the working of the machine was such as to give Mr. Seeley reasonable cause to be dissatisfied with it, or whether it worked well, according to the agreement and warranty, as testified to by the plaintiff and his witnesses.]8 You will now take this case, and give it your careful consideration, and render such a verdict as will do justice between the parties. The verdict of the jury was in favor of the plaintiff for $54.80, and judgment being entered thereon the defendant took this writ assigning as error: 1, 2. The parts of the charge embraced in [ ]1 8
120 Pa. 76Phillips v. Swank (1888)
ERROR TO THE COURT OE COMMON PLEAS OE SULLIVAN COUNTY. No. 62 January Term 1888, Sup. Ct.; court below, No. 61 September Term 1881, C. P. On September 12,1881, an action of ejectment was brought by Henry Swank against Alfred Phillips and Jonathan Phillips, to recover a tract of 248 acres and 48 perches on North Mountain. At a second trial on March 4, 1887 (the judgment for the defendants in the first trial having been reversed by this court with v. f. d. n.: Swank v. Phillips, 113 Pa. 482), the plaintiff showed title in David Phillips prior to 1840 and title in himself by purchase from David Phillips and payment of purchase money in full, under articles dated October 17,1863. It also appeared in the plaintiff’s case that in 1849 Jonathan Phillips, son of David Phillips, went into possession of the land under a lease from his father and continued in possession until his death in 1860, leaving a widow, Rachel, and several minor children; that in 1862, said widow and children, still in possession, the widow entered into a lease of the land from David Phillips, “ for $25 for one year rent,.....and at the expiration of said term shall and will quietly surrender, yield up the said premises unto the said David Phillips, his heirs and assigns, and she is not to burn any rails or destroy things, and keep it as good as she can; ” and that the widow was succeeded in possession the following year by Henry Swank the plaintiff, who on April 7, 1881, discovered the defendants in possession; “they said they had moved in there with the intention of staying there.” The plaintiff’s case having closed, the counsel for the defendants offered in evidence the office record of the following instrument: “ Augest the 20 1850 “i do herby agree tht Jonathan Phillips shall have the land wich he is posetion of now for the labor he don for me over age and this shall be his wrecept for all my writes and claims aganst the land. David Phillips.” Proof of signature made before Thos. J. Ingham, P. Judge, Dec. 1*4,1882, according to act of May 25, 1878, by testimony of Griffith Phillips, Joseph French and Rachel Harris. Recorded Jan. 2, 1883, in Deed Book No. 14, page 124, etc., to be followed by proof that Henry Swank purchased "with notice of this instrument, and that the land of which Jonathan Phillips was in possession on August 20, 1850, is the same land of which the defendants as children and heirs of Jonathan Phillips now hold possession as the land in dispute. Objected to by plaintiff’s counsel as follows: (1) The instrument of which record is made does not contain the signature of David Phillips. (2) That the writing does not purport to convey any title to the land in controversy to any one and conveys no title to any land whatever. (3) There is no evidence that the original writing was ever delivered. (4) The writing not having been recorded prior to the recording of the agreement between David Phillips and Henry Swank is fraudulent and void as to Henry Swank. (5) That even if the signature to the original writing be the signature of David Phillips, and even in case it be proven that it had been duly delivered, the instrument, containing no words of inheritance, conveyed only a life estate to Jonathan Phillips and is not evidence in this case on the part of his heirs; and further that it is irrelevant, immaterial and not competent. Objected further, that a written instrument or deed cannot be added to by parol or impeached by parol testimony. By the court: This offer stands upon the same footing precisely as the offer of the agreement between David Phillips and Henry Swank, so far as the offer of the record of it is concerned, but there are some objections there that go to the competency of the instrument as evidence at all in favor of the heirs of Jonathan Phillips. It is alleged there are no words of inheritance in this writing. What is the purpose of this offer? Counsel for defendants: To show a sale of this land by a written instrument that comes within the provisions of the recording act. By the court: In this case, we think the distinction between an executory contract or a deed or an informal conveyance, is whether the parties intended that anything more should be done. The contract or writing is simply this: “I do hereby agree that Jonathan Phillips shall have the land he is in possession of now, for the labor he done for me over age, and this shall be his receipt for all of my rights and claims against the land.” If the purchase money had not been paid then, it would lead to the inference that something more was intended to be done, but there seems to be nothing further for David Phillips to do. By that writing he says Jonathan shall have the land and says that the consideration is all paid and that this instrument shall be Jonathan’s receipt for all his rights and claims against the said land. It seems to be a transaction complete in itself, nothing more to be done by David, nothing more to be done by Jonathan. No occasion for the interference of a court of equity, for here is a conveyance of land. Now comes in the rule that in a conveyance formal or informal, which is intended to be a final disposition, the word heirs is necessary to carry a fee. It is impossible for me to see why this well-established rule of common law does not apply to this instrument, and I am compelled to reject the offer of this instrument.1 The counsel for the defendants renew the former offer, prout patet supra; to be followed by proof that Jonathan Phillips entered into possession of the land in dispute under said agreement and continued in possession until his death; that he cleared land, built a house and barn and made other valuable improvements upon the land. Also to be followed by proof of the declarations of David Phillips, made against his interest, that he had given his son Jonathan Phillips, a writing that he would secure the land in dispute to Jonathan Phillips his heirs or children. Also to be followed by pioof that the land of which Jonathan Phillips was in possession Aug. 20, 1850, is the same land now in possession of his heirs, and that the rights and claims of David Phillips to the said land, before he signed the agreement, were a fee simple title thereto. This for the purpose of showing that Jonathan Phillips had an equitable title to the land in dispute which descended to his heifs and children: to be followed by offering in evidence the original agreement with proof of the signature of David Phillips thereto, by proof that this was intended by both of the parties as an executory contract, and by proof of the declarations of David Phillips after the death of Jonathan Phillips to the effect that the heirs of Jonathan Phillips were not badly off, because they owned that land. Counsel for plaintiff renew their former objections, prout patet supra, and add thereto the further objection that a written instrument or deed cannot be added to by parol or impeached by parol testimony. By the court: We sustain the objections and reject the testimony.3 The court, Sittser, P. J., directed a verdict under the evidence in the case for the plaintiff, upon which judgment was subsequently entered. Thereupon the defendants took this writ, assigning as error: 1, 2. The refusal of the defendants’ offers.1 3
120 Pa. 86Chipman & Holt v. Ninth N. Bank (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY. No. 151 January Term 1888, Sup. Ct.; court below, No. 414 September Term 1887, C. P. No. 2. On November 5,1887, an action of assumpsit was brought by R. H. Chipman and D. W. Holt, trading as Chipman & Holt, to use of John I. Rogers, assignee for the benefit of creditors, against the Ninth National Bank of Philadelphia, and on November 7th, the plaintiff’s statement, verified by affidavit, was filed, which averred in substance: That on September 8, 1887, Chipman & Holt had made an assignment of all their estate, real and personal, to said John I. Rogers, for the benefit of their creditors, and that on said date, the defendant bank was indebted to the assignors in $3,069.61, on a deposit account therein set out, and that on September 5th, had refused to pay the same on demand made. The following is a copy of the entries in the deposit book of Chipman & Holt, copied into the statement: 1887, August 12th, balance $5,748.89 “ “ 15th, C., 3,700.72 “ “ 16th, C., 3,000.00 “ “ 26th, C., 850.00 On November 23,1887, the defendant bank filed an affidavit of defence to the whole of plaintiff’s claim, averring: That the defendant had discounted for Chipman & Holt, drafts and notes as follows: 1. On May 24,1887, draft of C. & H. to the order of C. & H. on Robert Hare Powell & Co., dated May 6, 1887, at four months, for $3,160.86; accepted. 2. On June 24, 1887, draft of C. & H., to the order of C. & H. on Robert Hare Powell & Co., dated June 21,1887, at four months, for $3,680.53; accepted. 3. On June 24, 1887, note of C. E. Pennock & Co., to order of C. & H., dated May 18, 1887, at four months, for $904.37. 4. On August 2, 1887, note of C. E. Pennock & Co., to order of C. & H., dated June 14, 1887, at four months, for' $674.23. 5. On August 2, 1887, note of C. E. Pennock & Co., to order of C. & H., dated July 22, 1887, at four months for $2,810.23. That the defendant was still the holder of all said drafts and notes; that the first mentioned four of them had matured and been protested for non-payment, of which the said plaintiffs had had notice, and defendant claimed to set off and defalk the sum of money so due on them against the claim of the plaintiff in this case. On December 6, 1887, a rule for judgment for want of a sufficient affidavit of defence was discharged, without opinion. A bill of exceptions having been filed, the use plaintiff took this writ, assigning as error the discharge of the plaintiff’s rule for judgment.
120 Pa. 90P. N. & N. Y. R. v. Snyder (1888)
APPEAL FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY. No. 196 January Term 1888, Sup. Ct.; court below, No. 865 September Term 1887, C. P. No. 4. On November T9, 1887, the Philadelphia, Newtown «fe New York Railroad Company filed a bill in equity against W. Fred. Snyder and others, petitioners, and Henry M. Dubois, master, and Robert C. Y. Meyers and others, viewers. The bill in substance averred: That the Philadelphia and Montgomery County Railroad Company was incorporated by the act of April 2, 1860, P. L. 677, with power to build a railroad beginning on or north of Berks street, between Front and Sixth, thence by any street to Lehigh avenue and Second street, and thence along Second street and road of the Kensington and Oxford Turnpike Co. (incorporated by act of March 17, 1842, P. L. 110), through Olney to any point on said turnpike in the Twenty-third ward, with power to make such arrangements with said turnpike company as might be mutually agreed upon by lease, purchase or otherwise. That by certain other acts of assembly, act of March 23, 1865, P. L. 674; act of February 6, 1872, P. L. 85; act of March 20, 1872, P. L. 447; act of January 29, 1873, P. L. 104, the name was changed and its powers extended so as to allow it to construct a single or double track railroad upon the macadamized portion of said turnpike road, then constructed from Lehigh avenue and Second street to a point north of Erie avenue. That by an agreement dated May 15, 1872, the plaintiff company had acquired by purchase that part of said turnpike lying south of Rising Sun lane, which sale was confirmed by the act of April 1, 1873, P. L. 460, and that, pursuant to its authority, in 1873 the plaintiff located its railroad along said turnpike as far south as Lehigh avenue and commenced the actual construction thereof from a point thereon about Erie avenue, where a temporary connection was made with the railroads of the Connecting and North Penn. Railroad companies, by which only was the plaintiff enabled to reach the city. That the portion of said turnpike, between Erie and Lehigh avenues, along which the plaintiffs roadway had not been actually constructed, by the said acts of assembly, contract and location, became a sectional part of the plaintiff’s right of way upon which to construct a double track railroad; that the width of the macadamized part of said turnpike was about thirty feet, the whole of which would be required to be occupied in the construction of said railroad, as was intended by the plaintiff company. That the privilege of completing the plaintiff’s road to the terminus named in its charter was of incalculable value, to give it an independent road into the city and enable it to establish its own depot at Lehigh avenue, and the plaintiff could not obtain any other right of way into the city south of Erie avenue without an expenditure of money which would practically make the undertaking impossible. That on October 14, 1887, under the act of June 2, 1887, P. L. 306, a petition was filed in the Court of Quarter Sessions of Philadelphia county, setting out the incorporation of said turnpike company, the construction by it of a turnpike road, the sale and conveyance to the plaintiff of the part south of Rising Sun lane ; that the plaintiff was receiving tolls for travel upon the part purchased; that the northern part was free from tolls under certain proceedings, and that it would be for the interest of the people of the county that that part of the turnpike road belonging to the plaintiff should become a public road, and upon said petition a master and a jury of view had been appointed; that notwithstanding there was no warrant in the said act of assembly for the condemnation of said portion of said turnpike, and that the said act was not intended to apply to a case where a part of a turnpike had been lawfully purchased by a railroad company for a part of its roadway, the said petitioners and the said master and jury were about to proceed under the said act to condemn the plaintiffs property: Praying, 1. That it might be declared that the said act of June 2, 1887, does not apply to that part of said turnpike road belonging to the plaintiff between Erie and Lehigh avenues in Philadelphia, and that it does not authorize the condemnation thereof. 2. For an injunction restraining the petitioners and the master and viewers from meeting, hearing; determining or reporting upon the petition or in any manner proceeding thereunder. To this bill the defendants at once demurred upon the grounds following: 1. That the plaintiff set forth no equitable right, but only an alleged legal defence to a proceeding at law, and that its remedy in the proceedings at law was full and adequate. 2. That the ownership of the plaintiff of the franchise of building a railroad on certain highways was no answer to the freeing of one of said highways from tolls. 8, 4. That the franchise of the plaintiff to build a railroad on said turnpike was distinct from that to collect tolls, and the former does not affect the commonwealth’s right over the other. 5. That the petition only sought to relieve the turnpike from tolls, and not to deprive the plaintiff of any power which it has or may have to construct a railroad thereon.
120 Pa. 98Appeal of Coxe (1888)
APPEAL PROM THE ORPHANS’ COURT OP PHILADELPHIA COUNTY. • No. 185 January Term 1888, Sup.
120 Pa. 109F. A. North & Co. v. Williams (1888)
EKKOB. TO THE COTIBT OF COMMON PLEAS NO. 3 OF PHILA-DELPHTA COUNTS'. No. 252 January Term 1888, Sup. Ct.; court below, No. 247 December Term 1886, C. P. No. 3. On December 2, 1886, an action was begun by Clayton Williams against F. A. North, trading as F. A. North & Co. The narr. charged: For that whereas heretofore, to wit, on or about the 28th day of May, 1886, at the county aforesaid, the said defendant, through its duly, authorized agents and employees, called at the residence of the said plaintiff, and, through false and fraudulent representations to the said plaintiff, to wit, that they had been sent there at the request of the said plaintiff’s wife to tune a piano, the property of the said plaintiff, gained admittance to the said plaintiff’s residence, and, against the protests of the said plaintiff and his wife, at the county aforesaid, carried the said piano away from the said plaintiff’s residence, and now retains the said piano, the property of the said plaintiff, from the said plaintiff, to the damage of the plaintiff five thousand dollars. And for that whereas the said defendant, on or about the 2d day of October, A. D. 1884, at the county aforesaid, sold and delivered the said piano to the said plaintiff for the sum of one hundred and fifty dollars, on credit, and agreed with the said plaintiff that the said plaintiff was to have as long a time as three years, if he so desired, in which to pay the said defendant for the said piano. Nevertheless, the said defendant, at the county aforesaid, collected from the said plaintiff the sum of seventy-six dollars, as part payment for the said piano, -which sum of money, together with the said piano so unjustly and unlawfully taken and carried away from the residence of the said plaintiff by the said defendant as aforesaid, he, the said defendant, now unlawfully and unjustly detains from the said plaintiff, and refuses to return or deliver to the said plaintiff, although often requested so to do, to the damage and injury of the said plaintiff five thousand dollars. At the trial on October 18,1887, under the plea of not guilty, it was shown that on October 2, 1884, The Wilcox & White Organ Co., through its agents F. A. North & Co., of Philadelphia, by a written contract of the usual form in such cases, leased and hired to Clayton Williams one piano for the term of twenty-five months, at the rental of $150, payable $10 cash in hand, and the balance in monthly payments of $5 on the second day of each month. The lease inter alia provided that the lessee “ will at any time, when required, exhibit the said piano to the said party of the first part or their agents; and in default of any monthly payment the said lessee agrees to re-deliver said piano to the said F. A. North & Co., or their authorized agent, within five days after such payment shall become due, or permit their agent to enter into and upon any premises where said piano may be, and without let or hindrance take away the same.” There was also a provision for a sale of the piano to the lessee, if at any time during the term or at the end thereof he should wish to purchase it, upon payment of such sum as would amount with previous payments of hire to the sum of $150; but it was expressly understood and agreed that no title, legal or equitable, should vest in the lessee until the terms of purchase were complied with and a bill of sale delivered. The instrument was executed in the following manner: Witness our hands and seals the date first hereinbefore written. The Wilcox & White Organ Co., By its duly authorized agents, F. A. North & Co. [l. s.] his Clayton x Williams, [l. s.] mark. Witness present: Geo. Miller. I have received a copy of the above Agreement, and have no understanding, verbal or otherwise, differing from it. his Clayton x Williams. mark. Witnessed by Geo. Miller. The plaintiff, called in his own behalf, testified: I am the plaintiff; my business is waiter and public caterer. In 18841 was working for John Wannamaker as waiter. Miller said he was agent for F. A. North & Co., and told me he had seen my wife; also told me to sign the agreement. I was waiting on some customers at the time, and after I got through Miller showed me the lease, and asked me to put my mark to it. I haven’t met him since. I made my mark to the agreement. He said I had three years to pay for the piano; and if I got sick, or was out of work, his firm would give me time to pay in, or be lenient with me. Piano was in the house at the time I signed the lease. Q. How much did you pay? A. About |76. I have receipts for all the money paid. I think there was a loose receipt. I was laid off two or three weeks, and got a little behind in the payment on account of sickness. Q. Now, tell the jury what was done on the day defendant took the piano away? A. A man came to my house and rang the door-bell. I was in the kitchen, and when I got to the vestibule door the man was in the entry. I asked him what he wanted. He said he had come to tune the piano. I told him to wait, and I would call my wife. I left the man in the vestibule, and went to call my wife. When I got back he had gone into the parlor, and had turned up the piano and had taken a leg off of the piano. This man and two others — Benjamin Bush was the man, I think. • I went for a policeman. Two rough-looking men came into the house and helped to move the piano. I asked the first man to show his authority to my wife to take the piano away. I said, “I wont have your taking the piano away.” He said he had all the authority he wanted, and would get it out by fair or foul means. They got ahold of the piano and took it out. I couldn’t find a policeman. I saw North & Co. afterwards at the store. He said he had ordered the men to take the piano away. I told him my wife would bring the money that was due. He said he wanted no excuses, must have the piano. I afterwards made an offer to North & Co. to take an organ for $100 and pay the difference. On cross-examination, the witness testified that he did not tell Miller he could not read or write. Victoria Williams, the plaintiff’s wife, testified to the same facts stated by the plaintiff as to the manner in winch the piano had been taken away. On the part of the defendant, George Miller, the witness to the lease, testified that the day it was executed he called on Williams at Wannamaker’s: he was busy waiting on people: “ I waited until he was through, then I showed him this agreement and explained it to him, and he put his mark on it.” Cross-examined: “I explained the lease to Williams; did not read it to him; he did not ask me to read it, he was in a hurry. It took ten to fifteen minutes to explain it to him.” It was also shown that in the removal of the piano there was no disturbance of any kind and no force used. These facts in the testimony adduced in the defendant’s case, were not denied by any rebutting evidence. The court charged the jury and answered the points submitted by the defendant as follows: There are two points in this case — one for you, the other for me. . There was a written contract signed by the plaintiff to which he has affixed his mark, a lease of a certain piano. The piano was to be paid for at so much every month, and at the end of twenty-five months, or at any time during the lease, the plaintiff, by paying up the full sum of $140, ten dollars having been paid down first, could obtain the title to the piano. Now, there is one important point in this, and that is the fact that this plaintiff in this case was a man who could not read or write, and this fact was known to the agent of the defendant who made this contract with him. This is a matter for the jury, because a man who cannot read is bound to take some precaution to find whether what he signs is what he means to sign, and if he neglects the precaution he must take the consequences o£ his neglect; but if he relied upon the agent of the other party for a knowledge of the contract, and this knowledge was not properly communicated to him, the condition of things is very different. Mr. Miller, the defendant’s agent, says that he did not read this contract to Williams, but did explain it to him, but Williams, on the contrary, says that it was not read to him, and that it was not certainly adequately explained to him, and this becomes of importance in a certain aspect of the case, because part of this contract is that no verbal understanding different from the written contract should exist between the parties. Mr. Williams signed this, as well as the other stipulations, and if he fully understood the agreement and allowed any terms of the contract to be omitted, and then signed this contract, he would undoubtedly be bound by what he signed; but whether he depended on his own knowledge or relied on defendant’s agent and whether defendant’s agent fully and fairly explained these things to him is for you to decide. I think that in an ordinary case of a man able to read and write and who relies upon himself and not upon the other side for knowledge, there is a burden of proof upon him to show that he was imposed on, and the evidence would have to be uncontradicted testimony or testimony which is well corroborated or which would require no corroboration, were the case before a chancellor; but Mr. Williams, in the present case, relied upon Mr. Miller for his understanding of this contract, and the sole point for you is whether Mr. Miller performed his full duty in explaining to Mr. Williams what the contract was; and if Mr. Miller discharged his full duty, then if Mr. Williams recovers at all it must be under the contract. [If, however, Mr. Miller failed to explain to Mr. Williams what was in this contract, and that there could be no verbal contract, Mr. Williams is not bound by the written contract; and if there was an agreement to extend this contract, not for twenty-five months, but for three years, and if Mr. Miller failed to explain to Mr. Williams that no verbal contract was binding, owing to this provision, then Mr. Williams could recover on the fact that the verbal contract is still in force; but the jury must be thoroughly satisfied that there was such a verbal contract outside of the written one,]3 and Mr. Williams must satisfy you that he did not have this contract thoroughly explained to him; and you must also be satisfied that the real agreement between the parties was for three years, and not for twenty-five months. The existence of the three years’ lease, and the non-application of the written contract, depends upon the failure of Mr. Miller to properly explain the latter. If Mr. Miller did attempt to explain this contract to Mr. Williams, and did explain it to him, then Williams is bound by the contract; but if Mr. Williams depended upon Mr. Miller for his knowledge, and there was a verbal contract outside, then that verbal contract would be the one in this case. But it all depends upon the evidence, which is for you. Supposing you find that there was no outside verbal contract, and Mr. Miller explained to Mr. Williams, and Mr. Williams signed it without asking for an explanation, he is bound by the written contract. [The real question is whether the defendant in this case exerted his rights improperly in the mode in which he got possession of the piano. The clause in regard to that is this: The plaintiff here agrees whenever required he will exhibit the said piano to the said party of the first part on their request, and in default of any monthly payment the said lessee agrees to re-deliver the said piano or permit their agents to enter into any premises where the piano may be and without let or hindrance remove the same. Now, in the view I take of this agreement, and in view of the undisputed evidence, I instruct you that the defendant in this case has not exercised his rights under this agreement in a proper manner; the evidence is that the agents of defendant by a trick obtained entrance into the house; under the view I take of this agreement, he should have made some sort of demand, and if the demand had been refused he has all his legal rights as owner of the piano against the person who is holding it, but he did not exercise his rights, in my judgment, properly in the manner in which he obtained the piano.]4 I think he is liable for damages in this case. The question then comes what the damages are. [North & Co. obtained the piano, I take it, in an illegal way, and the question is what damages did plaintiffs suffer. I am not prepared to say that punitive damages should not be given. My ruling is, that this is not a case which would call for high punitive damages, but I cannot say, as a matter of law, that no punitive damages can be given, because, if the defendant obtained possession of property by a trick, in violation of an agreement, the other man is entitled to damages] 5 such as will compensate him for the loss he suffers, and also punitive damages; but if it is true that there was no oral contract but only this written one, then North & Co. were undoubtedly the owners of the piano, and it was only an attempt by the owners to procure what was really their own property. It is for you to say whether there was any verbal contract or not in this case, and to do that you must go into the question as to whether Mr. Williams had that agreement explained to him properly by Mr. Miller. The points submitted by the defendant, with their answers, were as follows: 1. The agreement between plaintiff and defendant being a bailment, the plaintiff was bound to pay the rent as it accrued, according to the terms of the agreement, and in default of such payment, defendant had the right to take the piano. Answer: They had no right to take it by any force; they might have taken it, perhaps by coming and showing authority, but they could not take it by force.1 3. The agreement being a bailment, and the evidence showing that the plaintiff was in arrears in the payment of rent under its terms, your verdict should be for the defendant. Answer: The three years’ time would have no application to this point. It is true that the plaintiff was in arrears, and he was bound to give up the instrument, whenever the defendant should demand it, in a proper manner.3 The jury returned a verdict for the plaintiff for $93 damages, and judgment being entered thereon, the defendant took this writ assigning for error; 1, 2. The answers to the defendant’s points.1 3 3-5. The parts of the charge embraced in [ ] 310 5
120 Pa. 121Keim v. Saunders (1888)
1. Where a debtor, in the custody of the sheriff upon a writ of capias ad satisfaciendum, is discharged by the court upon filing a petition for the benefit of the insolvent laws, the sheriff has no further power over the debtor’s person upon the writ in his hands. 2. On the refusal of the court, after the writ is returned, to discharge the petitioning debtor at final hearing, a voluntary surrender to the sheriff’s deputy, unaccepted by the sheriff, is not a performance of the condition of the bond, and, so far as the sheriff is concerned, it goes for nothing. 3. Under the acts of March 80,1831, P. L. 228 ; April 14, 1835, P. L. 232, and February 14, 1867, P. L. 196, the sheriff is not the keeper or jailer of the Philadelphia county prison, either personally or by deputy, and is not liable for an escape therefrom. 4. There are cases where the sheriff has been held liable for the escape of a prisoner confined for debt in the county jail, and there is no doubt of such liability, when the sheriff is the actual keeper of the jail or controls it by means of a deputy appointed by him: per Mr. Justice Paxson.
120 Pa. 131Kuntz v. Schumacher (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. .4 OE PHILADELPHIA COUNTY. No. 248 January Term 1888, Sup. Ct.; court below, No. 475 December Term 1885, C. P. No. 4. On December 12,1885, an action of ejectment was brought by John Kuntz against John Schumacher and Christina B., his wife, in right of said wife, to recover a lot of ground on Richmond street in the Twenty-fifth ward of Philadelphia. Subsequently the facts were agreed upon as in a case stated and were as follows : On October 5, 1865, a tax claim was filed against Ryan and Walton, as owners of the property in dispute, for $44.33, dolinquent taxes of 1860, on which claim a scire facias was issued December 9, 1865, and being returned “ made known ” judgment was entered February 28,1866, for $45.65. On December 20, 1869, a levari facias was issued upon this judgment and the premises sold thereon to John Kuntz, the plaintiff, who received the sheriff’s deed therefor dated February 5, 1870, duly acknowledged and recorded. This was the plaintiff’s title. The defendant’s title was as follows: On November 22, 1853, the lot in dispute was conveyed by one Solomon Alter, trustee, to Lemuel L. Davis, reserving a ground-rent therein ; deed duly recorded. Judgment was obtained by Alter against Davis on November 24,1866, for arrears of ground-rent thus reserved, upon which judgment, by fieri facias and venditioni exponas to June Term 1867, the lot was sold at sheriff’s sale for $110 to Jeremiah Rhoads who received the sheriff’s deed therefor on September 28, 1867, duly acknowledged and recorded. This deed to Rhoads was at once registered in the Department of Surveys, under § 9, act of March 14, 1865, P. L. 320, which is as follows : It shall be the duty of all owners of houses and lots to furnish, forthwith, descriptions of their property to the chief engineer and surveyor, to aid him in making up the books of plans; and whensoever such descriptions shall have been so furnished, and the certificate of the chief engineer and surveyor shall be received, no property, so returned, shall be subject to sale for taxes thereafter to accrue as a lien of record thereon, except in the name of the owner, as returned, and after recovery by suit and service of the writ on him, made as in case of a summons ; and all such returns shall be arranged and filed alphabetically. After the payment of the costs in the sale under said judgment for arrears of ground-rent, there was a balance of $33.25, which might have been applied on account of the above mentioned judgment on the tax-claim, and taxes were then due amounting to $163.06. The title of Jeremiah Rhoads to the premises in dispute subsequently became vested in Christina B. Schumacher, the defendant, by divers conveyances ending with that of Mary Armstrong, dated November 30,1883, duly recorded. On December 10, 1887, the death of the plaintiff was suggested and his devisees were substituted as plaintiffs..
120 Pa. 138Hess v. Calender (1888)
ERROR TO THE COURT OE COMMON PLEAS OE COLUMBIA COUNTY. No. 72 January Term 1888, Sup. Ct.; court below, No. 228 September Term 1884, C. P. On September 5, 1884, an action of ejectment was brought by Clark Calender, executor of the will of Joseph Hess, deceased, against Francis L. Hess, to recover about 138 acres of land in Jackson township. The defendant disclaimed title to about 54 acres, and set up title to the remainder, 84 acres and 124 perches, by virtue of a parol gift from his father, Joseph Hess, the plaintiff’s testator. At the trial on February 10,1887, the undisputed facts were, that in 1871, Joseph Hess, plaintiff’s testator, being the owner of the whole tract, made a written contract for the sale of it to his son, the defendant. This contract was not enforced or complied with and in November, 1876, the father divided the place into two parts, one of which was put into the possession of the defendant. Joseph Hess, the father, died in 1883, leaving a will dated November 2, 1882, duly admitted to probate, wherein he directed that his executor should dispose of the farm in Jackson township, providing for the distribution of the purchase money among his eight children by his first wife, the defendant, as one of them, to receive $300. The defendant introduced testimony from which it was claimed that the contract of 1871 was rescinded by the parties because the land was unproductive and the defendant was unable to pay for it; that in 1876, the father, having divided the farm for the purpose, made a parol gift of the eastern or lower part of it, the land in dispute, to the defendant and assisted him in building a house upon it, contributing in various ways about $200 towards its cost; that the defendant accepted the gift, entered into possession in pursuance thereof, and erected the house at a cost of about $850; that he added a kitchen to the dwelling, dug a well, planted orchards, put up and maintained a division line which was located under his father’s direction and supervision, cleared about 30 acres of new ground, fertilized and improved the land so as to make it productive, paid the taxes, had the buildings insured in his own name with the knowledge and by the direction of his father and remained in open and notorious possession of the place as his own from the time he entered, undisturbed by any one until this ejectment was brought. There was also evidence that Joseph Hess declared at the time of the division that he was dividing the land for the defendant, and that, “ Frank was to have the lower part; ” that he subsequently and at various times pointed out the liue to others as the line of the land he “ had given to Frank.” On the part of the plaintiff, evidence was introduced in re'buttal from which it was claimed that in 1876, Joseph Hess made the division of the land intending to give the lower end of it to the defendant on condition that the latter would take his brother Billy, who was somewhat deranged' and unmanageable, and keep him as long as he might live, and when the division was made, the defendant refused to perform the condition ; that defendant was then living upon the upper part of the tract in a house too small and inconvenient for his growing family, and his father desired to help him into a more comfortable dwelling, and thus assisted to build the house upon the lower part; that this house was constructed chiefly from timber on the place, and when the defendant moved into it he continued to farm the entire tract of 188 acres, as he had been doing for several years, delivering a share of the produce to his father, as a tenant from year to year. Evidence was also introduced to show that the defendant sent the carpenters to his father, saying to them that he had no right to give out the job of building, the property belonged to his father; that in 1880 defendant asked an aunt to see his father and to ask him to devise the lower end of the farm to him, and that his father replied that “Frank would know what became of the land after he was gone,” and that his father demanded rents of the defendant a few days before he died, etc. The facts more fully appear in the charge to the jury. At the close of the testimony, the defendant requested the court to charge the jury; 1. That, if the jury believe that Joseph Hess divided the one hundred thirty-eight acres in question, and surveyed off eighty-four acres of that tract to Francis L. Hess, the defendant in this action, and that Francis L. Hess entered upon the same and erected a house thereon, assisted by his father, and improved the place so set apart to him, pursuant to a parol gift from his father, as evidenced by the testimony of defendant’s witnesses as to statements and declarations and acts of Joseph Hess; such acts are inconsistent with the continued existence of the agreement of April 8, 1871, and that contract is rescinded.1 2. That if the article of April 8, 1871, was rescinded by the parties thereto; and if the jury believe, from all the testimony in the case, that there was a parol gift of the eighty-four acres of land, and that the defendant pursuant to that gift entered into possession of the tract and maintained exclusive possession of same and erected thereon a dwelling and other buildings and made such improvements and expenditures of money, time and labor thereon that he cannot be compensated in damages; such parol gift became an executed gift, is valid and binding on the parties, and the will of the testator being subsequent in point of time to such gift cannot nullify it, and the verdict must be for the defendant.3 These points were refused, and the court, Gbebn, J., 21st district, holding special term, charged the jury as follows: Since the adjournment of court I have come to the conclusion that the proper thing to do under the circumstances would be to direct a verdict. I feel very well satisfied that there is so much doubt in the case as would prevent a chancellor from making a decree of specific performance; doubt, particularly, with regard to the agreement and to the taking possession under the agreement, such as to compel a ruling, deciding the cause. We therefore say to the jury that the court, naturally averse to taking from them the determination of the cause after they have carefully listened for two days to a great number of witnesses, yet feels compelled by a sense of duty under the authority of the Supreme Court to direct a verdict in this case. The evidence to sustain a parol gift of land — the claim here— must be- clear, positive, indubitable, conclusive. The question arises whether the evidence here is of that character which shows beyond a doubt that there was a gift of this land by the father to the son. To validate such gift, possession must have been taken by the donee in pursuance of the gift, and he must have made substantial improvements upon the land such as cannot readily be compensated in damages. The policy of the' law requires that the muniments of title should be in a form not liable to mistake; that a conveyance of real estate should ordinarily be in writing; for a parol gift is in its nature uncertain and vague, resting in the memory of individuals, whose recollection may be uncertain or unreliable, whereas a writing always speaks for itself and speaks for all time. It contains within itself the description of the premises conveyed, the consideration that may have been paid, the names of the parties, and every essential of the contract; but a contract by word of mouth, alone, is necessarily liable to the defects which may be caused by failure of human recollection or to the distortion due to the wilful or the unconscious perversion of fact by human testimony, and therefore the law requires that a transfer of property in land shall be in writing or else shall be shown by clear and indubitable proof. If we had only to consider the testimony on behalf of the defendant, Francis L. Hess, we think it might properly be submitted to the jury to determine the question of fact whether this alleged parol gift had been made out; but all the evidence in the cause, taken together, raises, I think, too much doubt to suffer us to say by its submission to the jury that it satisfies the requirement of the law, already mentioned, in regard to clearness and positiveness. In 1871 there was an article of agreement for the sale of this land from the father to the son. If this agreement was changed at all, it was not till 1876, or within a year or two subsequently to that time. The surveyor, Dewitt, testifies that he was called by Joseph Hess in 1876 to run a division line between what have been called here the upper and lower tracts, and that Joseph said to him at that time, that he intended the lower tract for Frank, or Francis, the defendant; and that, at Joseph’s direction, he made out in Frank’s name the draft for this lower tract. That draft is not produced, but the witness produces a draft which he swears is a copy, and that he made out the original in Frank’s name, as directed by Joseph. This is strong testimony to show an intention on the part of Joseph Hess at that time to give this land to his son Frank; but if the intention is not carried into action it amounts to nothing; if it were true that he really did intend to give this tract of land to his son Frank, but if he did not in fact give it to him, then his intention would not be sufficient to establish the claim of a parol gift. Knouse testifies that he helped to run this division line, and that on the evening of the same day on which the division line was run he heard a conversation between J oseph and Frank, in which J oseph said to Frank that he would give him the lower half or part, if Frank would take care of his infirm brother Billy — as the father called him — for the remainder of Billy’s natural life, which offer Frank refused, and that then the father offered the son the whole tract upon the same condition, which offer was also refused by Frank. If this testimony is believed, then the fact that a division line was run that day would amount to very little. You have also the testimony of Knouse as to what took place a few months after the death of Billy, which death occurred some eight or nine months after the division line was run. I think he said that he had a conversation with Frank, in which Knouse said to Frank that if Frank had agreed with his father to take Billy he would now have had this land, and that Frank assented to that, said he was sorry that he had not accepted the proposal, but that ho had refused on account of his wife’s unwillingness; something to that effect. If Frank had before this time received an absolute gift of this land, his natural reply would have been that it made no difference, that the land had been given to him anyhow, or some words to that effect. This testimony it seems to me, raises a doubt as to whether the division line was run for the purpose of giving to Frank absolutely and unconditionally the lower portion of this farm, or simply for the purpose of making an arrangement to give it to him provided he would take Billy — such a doubt as throws a cloud over the clearness and positiveness of the testimony. Knouse left at about eight o’clock in the evening, while Joseph and Frank were still engaged in conversation; ho could not know what further was said between them; but there is no evidence that anything further was said, or that any understanding or arrangement was arrived at, and the testimony of Knouse as to what occurred afterwards between himself and Frank would tend to the inference that no agreement was completed at that interview between Joseph and Frank. The building on the lower tract, the house, was not erected, as I understand the testimony, until 1878; finished in 1879. It is essential to the validity of a parol gift that possession should have been taken thereunder, but a party already in possession by prior arrangement cannot take possession under the gift. If the evidence here showed that the division line was run for the purpose of dividing the farm in order to give Frank the lower part, and that then this house had been built in furtherance of that design and that Frank had gone into possession in pursuance of the same design, that would have been all that the statute requires, so far as possession is concerned. Was this house built with the understanding that Frank should become the owner, unconditionally, of the lower portion of the farm ? The new house was erected while Frank lived in the old house upon the upper lot, and he then moved into the new house; but we are not informed of what took place between the time of the survey in 1876 and the time of the completion of the new building in 1879. The question arises, whether the defendant took possession of this house in pursuance of a parol gift previously made and completed, or simply because, the upper house being small, his father had helped him to build a larger and more convenient one on the lower tract. There is no direct testimony here to show that Frank moved from the upper to the lower house in pursuance of a parol gift. Unless the jury would be warranted in coming to the conclusion that such gift had been made, no inference could be drawn from the mere change of possession from the old to the new house. You have the declarations of Joseph Hess that he intended to build this house for Frank because the old house was too small. If the father’s purpose was simply to provide Frank with a more convenient dwelling because the old house was not large enough, and not because Frank had become absolute owner of the land on which it was erected, then Frank’s taking possession of it was not under a parol gift of the land, and it would be necessary for the jury, if the case were submitted to them, to find what this possession was; whether in pursuance of a parol gift or not, a question involved, it seems to us, in considerable doubt. The testimony as to the conduct of the defendant at the time he supposed his father was drawing up his will, throws some doubt upon the theory of a parol gift: his sending his aunt Lavina Boyer to intercede with his father to have him give Frank tbe lower farm in his will. Whether that testimony is explained by the fact that the defendant had no deed for this farm and simply wished a writing of some sort to show that he actually held the legal title, or whether it was an attempt to persuade his father to give him then a legal title to property which the son was conscious that he did not own, is a question of such grave doubt as to cast a shadow or a cloud upon the clearness of this testimony as to a parol gift, particularly since Lavina Boyer says nothing of any claim by the defendant, at the time of the application through her to his father, that Frank wished only to bé assured in his title or that he already owned the land. On the other hand, the father then undertook to dispose of this very tract by will, showing that he did not at that time recognize Frank’s ownership. Judge Krickbaum who took notes of his intended will, says that Joseph then recognized Frank’s claim to the farm in question under the article of agreement made in 1871, and that there was some talk between them in regard to that. At the time the house was building, a witness who asked Frank if he had authority to contract with him for its completion testifies that Frank said no, it belonged to his father, he must go to him; another witness testifies that the timber cut from this land to build this house was to be returned in some way; two others testify to a demand upon Frank for rent and to his paying a portion of the rent in grain, there being at that time only one barn upon the whole tract, the crops undivided, thus leaving in doubt whether the produce demanded by Joseph and furnished by Frank was from the lower or from the upper tract; if partly or entirely from the lower tract, then its delivery in compliance with a demand for rent would be an act inconsistent with the claim of absolute ownership of the fee. At the time of the reading of the will, the testimony shows that Frank was angry and disappointed, as well as some of the other heirs, at the way he had been treated in the will; and that he made no claim at that time that the land was his by previous gift from his father. The will gave this farm into the hands of the executor, with power to sell at either public or private sale, and directed how the proceeds of that sale should be divided. These are all facts that are undisputed. The defendant swears that at the time of the appraisement he was willing to give to the appraisers a list of the property that was on the lower farm, but was not willing to be called to account for it. This testimony is uncorroborated by that of Klinger or that of the appraiser or that of the executor, though Klinger says that he was present, as the others also were. The relevancy of this fact is that the defendant’s act is inconsistent with the claim of ownership, and so serves to cast a cloud upon the testimony in favor of that claim. The evidence as to the attempt of the defendant to induce Klinger to join with him in the purchase of this lower tract is, of course, in contravention of the idea that the defendant then believed the land to be his own. As to his alleged negotiations with a view to buying the favor of the executor, they might have to be considered by the jury if the case were left to them; but we have given to that part of the testimony no weight in arriving at our conclusion that the proof of the affirmative — which burden the law lays upon the claimant — that this land was given by parol to this defendant, is not made out with sufficient clearness to justify the court in submitting the evidence of it to the jury, and that therefore we must direct a verdict for the plaintiff.1 The jury returned a verdict in favor of the plaintiff for the land described in the writ, except the portion as to which the disclaimer was filed. A motion for a new trial was refused and judgment entered upon the verdict, when the defendant took this writ assigning as error: 1. The withdrawal of the case from the jury with binding instructions to find for the plaintiff.1 2, 3. The refusal of defendant’s points.8 3
120 Pa. 153M. S. Kemmerer & Co. v. Foster Township (1888)
No. 327 January Term 1888, Sup. Ct.; court below, No. 410 December Term 1887, C. P. On October 17, 1887, a case stated was made, Foster township against M. S. Kemmerer & Co., wherein it was agreed; That the duplicate of the road taxes assessed and levied for the year 1887 showed that there was due upon the same from the .defendants to the plaintiff the sum of $461, and said duplicate had been delivered to Hugh Maloy, duly elected collector of taxes for said township on the…
120 Pa. 159Auchenbach v. Seibert (1888)
No. 17 July Term 1888, Sup. Ct.; court below, March Sessions 1888. Held: qualified for election as a member of the select council of the said city of Reading from the Second ward, for the reason that he had not heen an inhabitant of the district, to wit, the said Second ward of the city of Reading, one year next before his election on the said third Tuesday of February, 1888, and had not during the said…
120 Pa. 170Ulrich v. Arnold (1888)
EBBOB TO THE COUBT OF COMMON PLEAS OF LEBANON COUNTY. No. 226 January Term 1888, Sup. Ct.; court below, No. 128 March Term 1887, C. P. On February 19, 1887, an action of assumpsit was begun by Henry L. Arnold against Henry Ulrich, Daniel Ulrich, John Fox and Henry L. Arnold, executors of the will of Samuel Ulrich, deceased. At the trial on December 9, 1887, it appeared that Samuel Ulrich, a widower, in 1874 came to Lebanon to reside in the family of the plaintiff, who was his son-in-law. Soon afterward he made a contract that he would pay the plaintiff $10 per month for Ms board and lodging. While so residing with the plaintiff’s family Mr. Ulrich received an injury to his wrist, which subsequently produced serious and offensive sores, confining him to the house, his condition becoming gradually worse until he died in 1886. A portion of the claim of the plaintiff was a balance of $22.23 for board and lodging, in accordance with the contract referred to. This claim was not resisted. The remaining portion was for services rendered to Mr. Ulrich by the plaintiff’s wife, his minor children and himself. The evidence consisted entirely of the proof of declarations of the deceased made in the presence of witnesses, relied upon to establish a contract to pay for the services. The character of this evidence fully appears in the opinion of the court. The court, McPherson, J., charged the jury and answered the points presented as follows : The principal facts in this case are not materially in dispute. The dead man, Samuel Ulrich, in 1874 came to the house of Mr. Arnold, the plaintiff, who had married Mr. Ulrich’s daughter, and staid there for a couple of weeks, being then apparently in good health, able to work. After being there about that length of time, he said he wanted to pay for his boarding, and shortly after that time a contract was made to that effect. There is no dispute upon that subject; and, as has just been said by the counsel for the defendants, they do not dispute that a contract was made for boarding for the amount of $10 a month ; and that there is two months’ and a few days’ boarding still due. So, in any event, your verdict will have to be for the plaintiff for that amount, which is $22.23, according to one of the points ; the whole, without interest, amounting to a little over $22. However, he was injured — an accident happened to bim— and thereafter he did no work as far as we heard, and I suppose he did none, but he continued, however, to be with the family, and you have heard the testimony in regard to the condition of his hand and wrist, the condition of himself, and the injury to his wrist as affecting his general health, his ability to walk about, what kind of attention he needed and how much care and nursing and general looking after became necessary. After the family moved from Lehman street over to Sixth street, and had resided there several years, the evidence seems to show that Ms condition got to be considerably worse. He died there in 1886. The evidence also shows that after he went to Sixth street he had a fall — perhaps had a seizure of some kind — I do not clearly know why — and was brought home in a wagon; and from that time on, the uncontradicted testimony is that he did not leave the house except in the immediate neighborhood of the house, as on the porch and in the yard — did not go out and walk about as he had apparently done before, to some extent. Now, this suit is brought to recover compensation for the boarding wMch still remains unpaid, and also compensation for services rendered by Mr. Arnold himself, by Ms minor cMldren, and particularly by Ms wife, durmg these years from 1874 to 1886 while Mr. Ulrich was at his home sick and required attention. The case, therefore, divides itself into two or three parts; but it is only as to one of them that there is any considerable difficulty. Mr. Arnold Mmself is entitled to be paid whatever the services wMch he Mmself rendered are reasonably worth. He is also entitled to be paid for whatever services his minor children rendered, such sum as they were reasonably worth. And the reason of that is, the relationship between a father-in-law and his son-in-law is not such as to raise any presumption that the son-in-law intends to give his own services to his father-in-law; if he does give services to his father-in-law, and the father-in-law accepts them, the presumption is that they are to be paid for at such price as they are reasonably worth; there is no necessity for proving an express contract between the parties; the law would imply a contract, from the mere fact that the son-in-law rendered service, and the father-in-law accepted it. Of course that may be repelled by other proof intended to show that it was not intended that the service should be paid for; but I am not aware that there is such testimony in this case, and I do not understand it to be contended that there is such testimony in the case, so far as the personal service of Mr. Arnold is concerned, or the personal service rendered by his children. We come, therefore, to the service rendered by his wife; and, as you see, that is the important part of the case; because it is conceded all round, and the testimony very clearly shows, that by far the larger part of the service rendered was rendered by her; and if, therefore, Mr. Arnold has no right to recover for the service rendered by her, the amount which he would be entitled to recover would be materially diminished. Now her case stands upon this footing, as I conceive: — She was the daughter of Mr. Samuel Ulrich, and of course she continued to be his daughter; because, although she married Mr. Arnold, and went from her father’s house, and went to live with her husband, the natural obligation which devolves upon a child to support a parent, an obligation recognized and enforced by the law, still remains; and so we may presume, and will presume, the high and natural affection existing between them, which would prompt her to render service to her father without any thought of payment. It is supposed, and has been argued to the court and to the jury, that because he went to live at their house as a boarder — that is, paying for his boarding — therefore he was there substantially as stranger. We do not so understand it. That did not alter the fact that between himself and his daughter there was this tie of blood; neither did it dissolve the tie of close affection. As we understand the law, it did not in any way give her right to charge for service rendered to him in the way of care and nursing. The fact that she is married, and that therefore her husband had a right to her services, does' not at all interfere, as I understand it, with that view of the case. The husband, no doubt, has a right to command the service of his wife — he did have at least during the period covered by this ease — and, if he did not desire that she should render service to her father, that was a matter within his own control, and he. could have enforced it. If he did not desire that she should render service to her father, unless there was an agreement by which she should be paid for it, that also was a matter within his province, and he could have enforced it. If, however, he allowed her to render the service which a child would naturally render to a parent — nursing and caring for him when he needed nursing and being taken care of, without insisting that there should be a contract made for payment upon his part — we instruct you that she rendered it upon the footing of parent and child, and as a matter not to be paid for; and, therefore, the husband could not claim for such service as the wife rendered under those circumstances. In brief, to enable .a daughter to recover from the estate of her father for services rendered to him in the way of care and nursing, there must be an express contract — that is to say, a contract made in words — either written words or spoken words — before she can set up successfully a claim for service of that kind rendered to her father; and it makes no difference, so far as that principle is concerned, that she be grown up and married, and be living away from her father. She herself, without an express contract, would have no right to recover under these circumstances ; and neither would her husband, suing alone, have any such right, because he could not occupy any higher ground, or have any higher right, than his wife; and as she would have no right to recover for such service, neither would he. So we instruct you in this case that if you are not satisfied, and clearly satisfied, from the evidence, that there was an express contract between Mrs. Arnold and her father that she should be paid for such care and nursing as she should give to him, then Mr. Arnold cannot recover anything for any service which she rendered to her father. It is necessary that the jury should be clearly satisfied upon that point. If the evidence leaves them in doubt, they must find against her right to be paid, and, therefore, against her husband’s right to to recover. It is, however, right — I will say this — to allow a child to recover for service which the parent has expressly promised to compensate; and it is not necessary in a case like that, that the price should be actually fixed. If the father expressly agreed to pay the daughter for such services as she might render, and suit was afterwards brought against his estate, the price could be fixed, and in almost all cases would be fixed by the jury, that tried the case, and fixed at such sum as the jury thought under all the evidence the services rendered were reasonably worth. So that you come to another question of the case, and one that has been argued to you quite fully; and that is, whether there was an express contract here to pay Mrs. Arnold for her services in nursing and taking care of her father. [That evidence consists of the declarations of Samuel Ulrich made at different times, beginning shortly after he was hurt and running down to within a short time before his death. Three or four witnesses speak of his declarations].8 You will remember their testimony upon that subject, and must determine what weight to give it — what he said, and what he referred to. First determine what he said, and next determine what he was referring to ; and then [see, from all the evidence, (which consists, as I remember, of these declarations,) whether or not there was an express contract between the father and daughter, that she should be paid for her services.]3 If you are not clearly satisfied upon that point, I repeat, she has no claim, and neither has her husband. The jury must be clearly satisfied not only that the father wanted to see her paid, and that he thought she had an equitable claim, or honest claim, for the work that she had done, but [the jury must also be clearly satisfied from all the evidence that there was an express contract made that she was to be paid for her services].4 [If you find that there was such a contract, then the question of compensation will arise],5 and in what I say about the question of compensation, I refer also to such services as Mr. Arnold himself rendered, and his minor children. The same principles apply to himself, to his children, and his wife, if he can recover on behalf of his wife. . . . The defendants’ points are these: 1. The relationship of the parties is such that under the evidence the jury must find for the defendants. 2. The time which elapsed after the alleged claim accrued, and before any demand was made, is such that the presumption of law under the facts in this case is either that the wages have been paid, or that the services were performed on the footing that no payment was to be made, and the jury must find for the defendants. 3. Under the evidence in the case the verdict must be for the defendants. Those points must all be refused. There are questions of fact in the case upon which the jury must pass. Although these points have been qualified since being handed to me, so as not to apply to the claim for boarding, which is now admitted, there are still other questions in the case upon which the jury must pass, viz.: upon Mr. Arnold’s individual right, which I have sufficiently explained, and therefore I cannot give these instructions. The verdict of the jury was in favor of the plaintiff for $2,022.30. On January 2, 1888, a rule for a new trial was discharged, the court saying: The equity of this case is with the plaintiff, and we do not think any legal reason requires /us to set aside the verdict. The question of an express contract between the decedent and his daughter, was fully recognized as of vital importance; it was argued to the jury by both sides, and we were not asked to say, that the evidence in its favor did not warrant its submission. If the verdict were unjust it would still be our duty to interfere, even under these circumstances, but upon the facts before us, we think the result is right. New trial refused, and judgment directed on the verdict upon payment of the jury fee. Judgment having been entered, the defendants took this writ assigning as error : 1. The submission to the jury of the question as to whether there had been an express contract between the decedent and his daughter, Mrs. Arnold, upon the evidence adduced by the plaintiff. 2-5. The parts of the charge embraced in [ ] 810 5
120 Pa. 182Harley v. Lebanon M. Ins. (1888)
ERROR TO THE COURT OF COMMON PLEAS OF WYOMING COUNTY. No. 1 July Term 1887, Sup. Ct.; court below, No. 47 January Term 1886, C. P. In an action of debt, the parties to which were “ P. D. Harley, to use of D. J. & P. D. Harley, partners, now to use of and assigned to D. J. Harley,” against the Lebanon Mutual Insurance Company, the parts of the narr. material to this cause were as follows : For that whereas the said defendant, heretofore, to wit, on the 7th day of January, 1880, at Jonestown in the county of Lebanon, Pa., to wit, at Wyoming county, aforesaid, by a certain policy of insurance and instrument in writing, then and there made, and signed by the president and secretary of the said company and under the corporate seal of said company (which said policy so signed and sealed the said plaintiff here brings into this court) upon a valuable consideration therein expressed and receipted for, did undertake to insure, and did insure, for the term of three years, the firm or partnership of P. D. Harley, which was then and there composed and consisted of Dennis J. Harley and Patrick D. Harley, from loss or damage by fire “ on his stock of leather finished and unfinished and green hides in a wooden frame building owned by P. D. & D. J. Harley, $500,” subject nevertheless to certain terms and conditions of insurance and warranties on the part of the said assured, and fully set forth in the said policy of insurance. And whereas afterwards, to wit, on the 13th January, 1888, by means of a certain renewal certificate and instrument in writing, duly executed and sealed by said company (which said renewal certificate the said plaintiff likewise brings into court) and upon a like valuable consideration therein expressed and receipted for, the said defendant did undertake to and did extend the said policy of insurance and the said insurance for the further term of three years, and did thereby continue the said policy of insurance in full force until the 7th day of January, 1886, subject as aforesaid. And whereas at the time of the issuing of the said policy of insurance, and of the said renewal certificate, the said D. J. Harley was a co-partner of and with the said P. D. Harley and jointly interested with him in the said insured property, and that the consideration paid for the said policy of insurance and for the said renewal certificate, was the money of the said copartnership. And whereas afterwards, to wit, on the 18th day of September, 1884, the said P. D. Harley did assign and set over unto the said D. J. Harley all of his right and interest of, in and to the said assured property, and all of his right, title and interest in the said copartnership, and in the wooden frame building owned by P. D. & D. J. Harley, and also his title and interest in the said policy of insurance, and all advantages to be derived therefrom. And also his right, title and interest in a certain other policy of insurance issued by the said defendant to the said D. J. & P. D. Harley on 1st of April, 1879, and then and there in full force; which said last mentioned policy was upon and covered, inter aha, the said wooden frame building, and also upon the same property, to wit, the stock of leather, finished and unfinished, and hides therein, as was the said first mentioned policy of insurance. And whereas the two policies of insurance were concurrent upon the said stock of leather, finished and unfinished, and green hides. And. whereas afterwards, to wit, on the 31st of March, 1885, the said second mentioned policy of insurance, then and there being about to expire, upon the application and request of the said D. J. Harley and upon information by him given to the said defendant that he had become the sole and exclusive owner of said insured property, and that the said P. D. Harley had assigned his interest therein to him, the said D. J. Harley, the said defendant did renew and continue the said second mentioned policy in the name of and to the use of the said D. J. Harley until the 1st day of April, 1890; and the said defendant did not then nor did it at any time thereafter, until after the said insured property was lost and injured by the hereinafter mentioned fire, make objection to said transfer and assignment, nor cancel said first mentioned policy, but on the contrary treated and held out the same to be a valid and subsisting policy of insurance. Whereby and by reason of the premises the said plaintiff does aver that the said defendant had notice of the said assignment of said policy, and did waive the requirement of clause six of the conditions of insurance contained in said policy, to the effect that any assignment thereof should be approved by the president or secretary of said company; and that further did thereby estop itself from availing itself of any supposed breach of said condition as a defence in this action. And further the said plaintiff doth allege that by reason of the premises he was not required to have the said assignment of said policy approved by the said officers of said company in order to entitle him to have and maintain his action for a loss thereunder. And whereas it was made known by means of said policy, and the said renewal and extension thereof, that from 12 o’clock noon on the day of the date thereof until 12 o’clock noon oil the 7th January, 1886, the said company should be liable to pay or make good to the said assured, their and his executors, administrators and assigns all such loss or damage not exceeding the insurance, as should happen by fire to the property as above specified. And the said plaintiff avers that from the said '18th day of September, 1884, up to and including the day when the same was lost, injured and destroyed by fire, as hereinafter set forth, he was the sole and exclusive owner of the insured property, and interested therein as such, to the full amount of the said insurance thereon, to wit, at Wyoming county aforesaid; and the said plaintiff further avers that heretofore, to wit, on the 14th June, 1885, to wit, at Wyoming county aforesaid, a fire occurred, which did not happen to take place by means of an invasion, riot or civil commotion, or of any military or usurped power, or by any earthquake or hurricane, by means of which said fire the said stock of leather, finished and unfinished, and green hides were consumed, destroyed, injured, burned and depreciated in value; whereby and by reason whereof great loss and damage accrued to the said plaintiff, to wit, to the amount of $8,000. And the said plaintiff avers that the requirements in said policy as to giving notice of loss, and making and delivering proofs of loss under oath, and all other conditions precedent in said policy contained, have been heretofore waived and suspended by the said defendant, and by its duly authorized agents. And the said plaintiff avers that he has fully complied with all of the requirements in said policy contained, conditions precedent to his right of action on said policy, and has furnished to the said defendant such notices and proofs of loss as he was required to furnish by said policy, or by the said defendant. And he further avers that he has been guilty of no breaches of any of the warranties in said policy contained, and that the said policy at the time of said loss was and remained in full force, to wit, at Wyoming county aforesaid. Whereby and by reason of the premises he saith that a right of action accrued to him to have, demand and receive from the said defendant the sum, to wit, $500, and the interest thereon, and although often requested so to do the said defendant hath not paid the same, nor any part thereof; and therefore this suit. The pleas were nil debet, payment, payment with leave, etc. At the trial on January 13, 1887, before Sittseb, P. J., the jury rendered a verdict in favor of the plaintiff for $537.50. On January 17th, the defendant moved the court for a. new trial and to arrest the judgment for the reasons: 1. That upon the whole record the plaintiff is not entitled to recover judgment in this case. 2. That the averments in plaintiff’s declaration are not sufficient upon which a waiver of the sixth condition of the policy in suit could be founded. 3. That the plaintiff’s narr. and proofs adduced thereunder are not sufficient to show title of property in plaintiff, and right to recover at the time of the alleged loss, or at time of commencement of suit.
120 Pa. 191Rank v. Rank (1888)
ERROR TO THE COURT OE COMMON PLEAS OE MONTOUR COUNTY. No. 350 January. Term 1887, Sup. Ct.; court below, No. 35 February Term 1885, C. P. On January 9, 1885, assumpsit was brought by Kate E. Rank against Daniel W. Rank, to recover upon certain notes made by the defendant to the plaintiff, and upon a book account. At the trial on December 23, 1886, before Sittser, P. J. 44th district, holding special term, the plaintiff having closed her case with proof of a note dated September 27,1880, for $100, made by the defendant, upon which $75 with interest from date was claimed; another of like form dated April 24, 1882, for $100, and a book account for $267.74, the defence made thereto disclosed the following facts : On February 26, 1844, John McGinness, “in consideration of the sum of one dollar and love and affection which he beareth to his daughter,” conveyed to Catharine Rank, intermarried with Joseph Rank, of Limestone township, a farm made up of two tracts of land in said township, the habendum of the deed being as follows: To have and to hold the said two tracts of land hereditaments and premises hereby granted and released or mentioned or intended so to be with the appurtenances unto the said Catharine Rank, her heirs and assigns exclusively of her said husband to the only proper Use, benefit and behoof of her, the said Catharine Rank, exclusively as aforesaid her heirs and assigns as aforesaid forever. Catharine Rank died December 31, 1879, testate, leaving her husband, Joseph Rank, and three children, James C. Rank, Kate E. Rank, the plaintiff and Daniel W. Rank, the defendant, and by her will, duly admitted to probate and letters thereon issued to D. W. Rank and Kate E. Rank, executors, directing that her said real estate should be sold by her executors after the decease of her husband, and the proceeds thereof with the rents and profits previous to the sale, to be equally divided between said D. W. Rank and Kate E. Rank. The defendant then testified and introduced evidence to sustain the claim that the notes were accommodation notes given by him to enable the payee to borrow money to pay to him on account of his share of the income of real estate held by them in common under the will of their mother, and that the goods and money represented in the account had also, so far as received, been so supplied. The plaintiff denied that she and the defendant were tenants in common of the farm, alleging, on the contrary, that their father Joseph Rank, who was still living, held the farm as tenant by the curtesy, and that under an arrangement with him she was to receive “ one half of the income of the place, to use for my own use and for running the house, whatever was necessary.” The court, Sittser, P. J., after reviewing the testimony, charged the jury as follows : It is for you, of course, to find, under evidence what are the facts in this case. [In order to determine the situation of these parties and their relation to this property, it is necessary for the court to instruct you as to the law arising upon the deed and will of Catharine Rank, the mother of the plaintiff and of the defendant. In 1844 a deed was made to Catharine Rank of this farm. Under that deed she and her husband lived upon the property and had possession of it from the year 1844 down to the time of the death of Catharine Rank. It is claimed on the part of the plaintiff — and of the defendant, too — that the deed vested the property in this farm in Catharine Rank; but the defendant claims that the effect of that deed was such as to deprive Joseph Rank, the husband of Catharine , Rank, of any title, as tenant by the curtesy, in that property. The usual rule is that where the wife is the owner of real estate and dies leaving a husband to survive her, that husband has a life estate in that property; that after the death of the wife he is entitled to the possession of the property during the period of his natural life, and may use and have control of the property for that length of time; and we say to you that this deed to Catharine Rank, given in evidence here, does not interfere with the application of that general principle of the law; and that Joseph Rank, upon the death of his wife Catharine in 1879, had a life-estate in that property, had a right to use and occupy and possess that farm for the remainder of his natural life, and would be entitled to have and to enjoy the produce of the farm, unless he parted with that right by his own contract; so that the defence set up by the defendant, that he was the owner or joint owner of the crops raised upon the farm during the possession of Joseph Rank and after the death of the defendant’s mother, cannot avail him, unless he shows that he acquired these crops upon some contract or arrangement with Joseph Rank, the owner of the farm.]1 .... The counsel for the defendant have requested me to say to you: 1. That, by the deed of John M'cGinness to Catharine Rank, in evidence, the plaintiff and the defendant-were tenants in common. Answer: This is not affirmed, for we have already explained to you that our construction of the deed gives a life-estate to Joseph Rank, the surviving husband of Catharine Rank, and that the plaintiff and the defendant will not become tenants in common in possession of this property until after the death of Joseph Rank.* The verdict of the jury was in favor of the plaintiff for $431.05. A rule for a new trial having been discharged and judgment entered on the verdict, the defendant took this writ assigning for error, inter alia: 1. The part of the charge embraced in [ ]1 2. The answer to the defendant’s point.8
120 Pa. 198City of Reading v. Savage (1888)
120 Pa. 209Appeal of Halsey (1888)
No. 116 January Term 1888, Sup. Ct. The final account of Philip F. Stier, as committee of the person and estate of Eli Siegfried, a lunatic, having been filed and exceptions made thereto by G. L. Halsey, the administrator of the lunatic, then deceased, and by Catharine Siegfried, widow, and Albert Siegfried, a son, Mr. Aaron Goldsmith, appointed auditor to hear and determine the exceptions and to report distribution, found the following facts : Eli Siegfried, the deceased…
120 Pa. 215J. M. Conway & Co. v. Lewis (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY. No. 276 January Term 1888, Sup. Ct.; court below, No. 517 June Term 1885, C. P. Citarles II. Lewis had recovered a judgment before a magistrate against Joint M. Conway and E. H. Hamilton, trading as John M. Conway & Co., lor $92.94, wlten tbe defendants took an appeal. At a second trial in the Common Pleas on January 18,1887, the plaintiff’s ease was presented by evidence showing that be was a manufacturer of woolen yarn at Bristol, Tenn., and in September 20,1884, lie wrote tbe defendants, who were commission merchants in New York with a branch house at Philadelphia, asking tbe price of 20-cut woolen yarn, and received a reply tliat such yarn* was bringing 45 to 48 cents per pound, and in the last of the month he delivered to them for sale three bales, weighing 551 lbs.; that on October 15tli, the defendants wrote bim tliat they had offered his yam to a number of parties, “ but 30 cts. is the best offer we can get for it, as it is so very uneven, running from 20 to 30-cuts. Please let us know if we shall close it out at this price ; otherwise, let us know where we shall send it to, as above is best we can get; ” that to this letter he replied refusing to take the price, asking the defendants for the freight bills, stating that he would take the yarn off their hands ; that by letter of October 23d, the defendants sent the freight bills, and on November 4th, he sent them a check to cover the costs and directed them to turn the yarn over to James Smith & Co., near them ; that on November 6th, the defendants returned the check, and sent an account of sales which showed that the yarn had been sold on October 17th, at 30 cts.: “We could not get more for it on account of its unevenness.” The plaintiff claimed the value of the wool at 45 cts., less the amount of the sale at 30 cts., which amount had been transmitted. In the defendants’ case, it was shown that the yarn, when received at the branch house in Philadelphia, was at once tested by them and by several parties to whom they offered it for sale and was found to be so uneven that it ran from 18-cut to 30-cut in grade; that the letter of inquiry of October 15,1887, from defendants to plaintiff, was written at the New York house and the defendants’ Philadelphia agent who sold the yarn did not see it. It appeared that the yarn was sold on October 17th, to John W. Wise, a dealer, for 30 cts., who then sold it for 35 cts., to Rumpf & Brother, who made it up into “ German coverlets, a kind of goods in which the unevenness did not make much difference.” The defendants examined several experts who had tested the yarn and who testified that it was not worth more than 25 cts. to 30 cts. in the market. The court, Peirce, J., charged the jury and answered the points presented as follows : The defendants’ points: 1. To entitle the plaintiff to recover, he must prove that defendants were guilty either of breach of orders, fraud, or negligence ; and unless the jury can find from the evidence that the defendants were guilty of breach of orders, fraud, or negligence, then the verdict must be in their favor. Answer: Affirmed. 2. There is no evidence in the case of breach of orders or fraud on part of the defendants ; therefore it must be proved that they were guilty of negligence, to entitle the plaintiff to recover. Answer: I affirm this point with a qualification; if the defendants wrote for orders, and sold before getting orders, while this was not a sale against orders, yet it was a sale without orders, and would constitute negligence on the part of the defendants.1 3. If the jury find from the evidence that the plaintiff did not fix or limit any price upon the yarn in question, prior to the sale, and that 30 cents per pound, the price obtained by defendants, was a fair market price for said yarn at the time of sale, then the verdict must be for the defendants. Answer: Refused.3 4. If the jury find from the evidence that the plaintiff did not limit any price upon the yarn prior to the sale; that defendants made reasonable and proper efforts to obtain a fair price for the yarn and that 30 cents per pound was as much as they could obtain for it, which amount was remitted by them to the plaintiff, less freight and commissions, then the verdict must be for the defendants. Answer: Refused.3 5. If the jury find from the evidence that the plaintiff did not limit any price upon the yarn prior to the sale, then defendants were not bound to communicate with or consult him before making a sale ; hence the fact that defendants wrote to plaintiff, asking him if they should sell at 30 cents, but after-wards sold at that price before receiving a reply, has no bearing on plaintiff’s right to recover, and does not in any way alter or increase defendants’ responsibility in this case. Answer: Refused.4 This is an action by Charles H. Lewis against John M. Conway & Co., a New York commission house, having a branch house here, to recover damages for the sale of yarn. Plaintiff brought the yarn here, and took a sample of it to defendants. He said it was 20-cut yarn, and asked then or subsequently what 20-cut yarn would bring; and was told 45 cents per pound. Plaintiff had the yarn sent to defendants to sell, who sold it for 30 cents per pound, and in defence say it was not 20-cut yarn; and the evidence is that instead of being 20-cut, the yarn was very uneven, and ran from 18 to 30 cuts, and that this unevenness or want of uniformity materially depreciated its value, and that defendants could not get more than 30 cents. If defendants had sold without asking for instructions, a very different question would have been presented. They, finding they could not get more than 30 cents per pound, wrote to plaintiff and stated the fact, but sold the yarn without waiting for a reply. [The first question which arises is, were the defendants guilty of negligence ? Their duty was to get the best price they could, and having written for instructions they were bound to await a reply, to receive the instructions asked by them; and if they sold without awaiting a reply, this was negligence.] 5 .... . The verdict of the jury was in favor of the plaintiff for $109.68. A rule for a new trial being discharged, judgment was entered upon the verdict, when the defendants took tins writ assigning for error: 1-4. The answers to defendants’ points 110 4 5. The part of the charge embraced in [ ] 5
120 Pa. 221Biddle v. Hooven (1888)
error to the court of common pleas NO. 2 OF PHILADELPHIA COUNTY. No. 292 January Term 1888, Sup. Ct.; court below, No. 520 December Term 1885, C. P. No. 2. On January 27, 1886, a summons in covenant sur ground-rent deed was issued in an action by Thomas A. Biddle and Alexander Biddle, surviving trustees under the will of Christine Biddle deceased, against James Hooven. The writ having been returned, nihil habet, an alias issued which was returned served on Patrick Dougherty, tenant in possession, advertised, and nibil babet as to defendant. On March 13, 1886, a rule to allow John Kilpatrick to intervene as terretenant and party defendant was made absolute. The statement of the plaintiff’s cause of action showed: That on October 2, 1845, Henry J. Williams and wife conveyed a certain lot in Philadelphia in fee simple to James Hooven, reserving therein a yearly ground-rent, by a deed containing the following covenants : And the said James Hooven for himself, his heirs, executors, administrators and assigns, dotb covenant, promise and agree, to and witb the said parties of the first part, their heirs, executors, administrators and assigns, by these presents, that he, the said James Hooven, his heirs and assigns, shall and will well and truly pay, or cause to be paid, to the said parties of the first part, their heirs, executors, administrators and assigns, the aforesaid yearly rent or sum of forty-five dollars lawful silver money aforesaid, on the days and times hereinbefore mentioned and appointed for payment thereof, without any deduction, defalcation or abatement for or on account of any taxes, charges or assessments whatsoever .... Provided always nevertheless, that if the said James Hooven, his heirs or assigns, shall and do, at any time within seven years from the date hereof, pay, or cause to be paid, to the said parties of the first part, their heirs or assigns, the just and full sum of seven hundred and fifty dollars lawful money aforesaid, and the arrearages of the said yearly rent to the time of such payment, then the said yearly rent hereby reserved shall forever thereafter cease and be extinguished, and the covenant for payment thereof shall become void; and then they, the said parties of the first part, their heirs or assigns, shall and will at the proper costs and charges in the law of the said grantee, his heirs or assigns, by some proper deed or assurance in the law to be well and sufficiently executed and acknowledged, grant release and extinguish the said yearly ground-rent hereby reserved, and all their estate and interest in and to the said lot of ground hereby granted, with the appurtenances, unto the said James Hooven, his heirs and assigns, forever, anything hereinbefore contained to the contrary notwithstanding ..... That in May, 1865, the said ground-rent was conveyed by Henry J. Williams to the plaintiff trustees, who brought this suit. On November 2,1857, John Kilpatrick, the terre-tenant defendant, had purchased the premises out of which the ground-rent was reserved at a sheriff’s sale thereof as the property of James Langan, the sheriff’s deed, dated on November 14,1857, describing the premises conveyed as being the same “ which James Hooven and wife by indenture dated the 18th day of August, A. D. 1857, recorded.....conveyed unto said Langan in fee, subject to the payment of a certain yearly ground-rent or sum of forty-five dollars, in equal half yearly payments on the first clays of the months of January and July,” etc., and conveying the same to said John Kilpatrick, his heirs and assigns, “ subject to the said yearly ground-rent or sum of forty-five dollars. To have and to hold unto the said John Kilpatrick, his heirs and assigns, subject as aforesaid,” etc. On January 22, 1887, Kilpatrick pleaded “covenants performed, covenants performed absque hoc, with leave,” etc., and specially, that “ no payment, claim or demand has been made on account of or for the said yearly ground-rent for twenty-one years prior to the commencement of said suit, and no declaration or acknowledgment of the existence thereof has been made within that period by the owner of the premises subject to said ground-rent, and this he is ready to verify, wherefore he prays judgment,” etc. The plaintiffs replied, infregit conventiones, non solvit, and to the special plea demurred, showing as ground : “ Because no claim or demand is necessary; the act by virtue of which said plea was filed impairs the obligation of the contract between grantor and grantee in the deed from Henry J. Williams to Hooven, dated October 2, 1845, reserving the ground-rent, which obligation the said terre-tenant Kilpatrick has taken upon himself by his deed dated November 14, 1857.” On January 26, 1888, under an agreement filed, tire general pleas and the replication thereto rvero withdrawn, and on January 28th, on the demurrer to the special plea the court, without opinion filed, ordered judgment to be entered for the defendant. Thereupon the plaintiffs took this writ, assigning the said order as error.
120 Pa. 228Holland v. White (1888)
ERROR AND CERTIORARI TO THE COURT OE COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY. Nos. 306 and 307 January Term 1888, Sup. Ct.; court below, No. 97 December Term 1887, C. P. No. 3. On November 23, 1887, a writ of foreign attachment in assumpsit was issued at the suit of Luther Holland, Luther P. Graves and G. B. Montgomery, partners as Holland, Graves & Montgomery, against C. A. White, W. D. Clarkson and D. H. Wellman, partners as White, Clarkson & Co. The writ was executed and service made upon the Penn. R. Co., Watson & Gillingham and John Morrison, garnishees, and returned nihil habent as to the P. & R. R. Co., garnishees, and the defendants. On November 30, 1887, on motion in behalf of the defendants, who, however, did not appear to the record, a rule was granted to show cause why the writ of foreign attachment should not be quashed, on the ground that one member of the defendant firm was within the county at the time the writ was issued. Depositions were filed in support of and in opposition to the rule. From these depositions it was claimed on the part of the plaintiffs that the members of the defendant firm resided in New Haven, Conn., but had office room in Philadelphia to which they would come occasionally; that they had become embarrassed, owing the plaintiffs about $4,000, and that Graves, of the plaintiff firm, on November 21, 1887, went to New Haven, to see the defendants and if possible to obtain a preference from them; that Clarkson, of the defendant firm, informed Graves, at New Haven, that under the laws of Connecticut any preference or attachment, if made within sixty days before an assignment, would be set aside, but that the defendants had a quantity of lumber at Philadelphia, which he would wire their agent in Philadelphia to point out or “ turn over” to the plaintiffs so that they could attach it and in this way get a legal preference; that Graves then hurried to Philadelphia, saw White, of the defendant firm, and told him of the arrangement with Clarkson; that White wired to New Haven for instructions, and under instructions received gave to the plaintiffs, the day before the attachment was issued, the numbers of the car-loads of lumber and where situated, in order that they might be attached by the plaintiffs, but declined to confess judgment or give up the bills of lading for the lumber ; that White suggested to the plaintiffs to hurry up, otherwise the assignment which defendants were about to make would precede the attachment. Under these facts, the plaintiffs maintained that the defendants were estopped by their own acts from taking the rule, and had waived any statutory right they had, by directing the issuance of the attachment.
120 Pa. 235Appeal of Pepper (1888)
APPEAL PROM THE DECREE OE THE ORPHANS’ COURT OE PHILADELPHIA COUNTY. No. 319 January Term 1888, Sup. Ct.; court below, No. 73 January Term 1880, O. C. On November 11, 1887, tbe account of George S. Pepper, surviving trustee of the share of Charles Pepper, under the will of George Pepper, deceased, which account was filed May 26, 1887, was called for audit before Ashman, J., when the following facts appeared: George Pepper died on January 6, 1846, leaving several children, and among them a son named Charles Pepper. His will, admitted to probate on January 12, 1846, directed the partition and division of all his residuary estate into as many shares as he should leave children and issue of deceased children, living at his death, such issue to represent their parents, and the respective shares of his children, and issue of deceased children, to be allotted to them in severalty. There was then a further provision, indicated in the syllabus and fully appearing in the opinion, giving and devising the share of his son Charles to trustees in trust for his use for life, and, from and after his death, to the use -of such of his children and issue, and in such shares and for such estates, as he should by last will appoint, etc. The share of the son Charles was duly ascertained and separated by partition and division agreeably to the provisions of said will. Charles died, testate, on May 3, 1887, leaving surviving as his only issue one son, viz.: Charles Rockland Pepper, the appellee in this case, who was born on April 6, 1847, is single and unmarried, and who on July 2, 1868, just after he became of age, executed a deed conveying to George S. Pepper one equal undivided moiety or half part of all the real and personal property to which he then was or might at any time thereafter be entitled, in possession, reversion, remainder, expectancy or otherwise, under the last will of the said George Pepper, his grandfather, or any appointment made, or to be made, by said Charles Pepper, his father, in trust for certain uses and purposes not necessary to be here defined, as the validity of this deed was not questioned. The will of Charles Pepper, deceased, of which George S. Pepper was make the executor, recited the donation of the power in the will of George Pepper, and in pursuance thereof devised and bequeathed all his share of his father’s estate to his son Charles R. Pepper, in provisions also indicated in the syllabus hereto and fully appearing in the opinion. The account settled showed a principal, consisting of securities enumerated, a balance in cash amounting to $10,745.89, and a balance of income of $10,195.68. Upon the foregoing facts, Charles R. Pepper, not contesting his deed of July 2, 1868, but claiming that one half of the trust estate should be awarded to him absolutely and in his own right, under the will of George Pepper, deceased, the court, Ashman, J., on November 23, 1887, filed the following adjudication: The objection presented at the audit, against the exercise of the power of appointment by Charles Pepper, the son, was twofold: that it violated the rule against perpetuities, and that it transcended the limits of the power. There seems to be no ground for the first position; the power was bound to be executed within lives in being at the death of the testator, and twenty-one years after the expiration of those lives, and the appointment was to persons, all of whom must be ascertained within that period. But the second point cannot be so easily dismissed. The appointee, to borrow the argument in Wickersham v. Savage, 58 Pa. 365, took only under the will of the donor; he could take nothing under the will of the donee, because the latter had nothing to give; he was simply an agent to distribute. Looking, then, to the will of the donor, it is clear that an absolute estate was given among the children and issue of the donee. The utmost discretion of the donee of the power was to select from among that class. But this power of selection, and therefore of appointment, was gone, when, as was the fact, there was but one person in the class, and that person, as its representative, of necessity took the whole estate. Concede, for the purposes of argument, that under the authority to limit “in such shares and for such estates” as he might choose, the donee could fetter the gift to the grandson with a trust, provided the trust was so guarded as to be within the limits of the rule prohibiting perpetuities. But plainly the donee has done more than this. He has imposed conditions' which imply a possible forfeiture of the estate, and, upon their breach, he has appointed in favor of a class which was not contemplated by the donor. It will not be contended that the issue of a living child, who are the subjects of this limitation over, can be included among the “children and issue ” to whom the donor restricted the exercise of the power. The point, at all events, was decided in Wickersham v. Savage, just cited, and in Horwitz v. Norris, 49 Pa. 213. If we concede further that the appointment is void only as to the excess, we decide the question. We have, then, a gift to the son of the donee, coupled with a condition that during a certain period, he shall not incumber nor alien the estate, with a limitation over on breach of that condition. But the limitation over is void; and the son, by virtue of the gift to him by the donor of the power, in default of appointment will take the estate, absolved from the condition. He certainly cannot continue to hold the absolute estate, and be restrained from alienation. The only answer to this would seem to be, that the restraining clause in the appointment to the grandson, was in the nature of a spendthrift trust, which would be upheld by the legal estate outstanding in the executors as trustees under the donor’s will. Assuming that there was a trust, the query is, whether it was within the purview of the power. Undoubtedly very strong expressions, against the right of the donee of a power to fetter the interest of an appointee, where the gift by the donor of the power is absolute, may be found in the cases. It is true that in Horwitz v. Norris, 49 Pa. 220, it was intimated, and the suggestion was acted upon in Boyles’s Estate, 5 W. N. 363, that “perhaps in equity.....an appointment to trustees in trust for the particular object designated by the donor of the power, might be sustained.” In the case last named, the power was to the widow, to appoint “ in such way or manner and in such proportions and for such estates ” among the children, as she should direct, and it was exercised by a trust to pay the income during minority, for the support of a child, and the principal at the majority of the beneficiary. Here the entire estate was given to a member of the proper class, with a provision for minority which the law itself would have made in the absence of a trust. In Fidelity Co.’s Appeal, 4. W. N. 266, the Supreme Court say: “ The testator having vested an absolute and unqualified interest in the children, in the several proportions distributed or divided to them, it is clear the widow could not, by any power of appointment, or by any directions or orders, limit to them a less estate, or so fetter it that it could not be fully, used by each.” In Wiekershain v. Savage, 58 Pa. 365, where the power was to the donee, to appoint to his children “ in such shares and proportions and for such estates,” as he should, by will, direct, Thompson, C. J., said: “ He,” the donee, “ could only distribute the estate already vested in the defined class.” And he adds, what seems to bo fully applicable here: “ The appointee is one person; he takes the entire estate in remainder, as the representative of a class. Of course, in that case, no appointment could vary his interest.” The same point was decided in Roe v. Dunt, 2 Wils. 336, where the gift was “ in such proportions and for such estates,” as should be limited. Yet in all of these cases, except Boyle’s Estate, and perhaps Fidelity Co.’s Appeal, the appointment was void, because it embraced parties who were not rightly objects of the power; and the decision went upon that ground alone. On the other hand, a trust for the separate use of the appointee, who was a married woman, was permitted, in Alexander v. Alexander, 2 Ves. Sr. 642. And see Willis v. Kymer, L. R. 7 Ch. Div. 181, and Boyle’s Estate, supra. The auditing judge is not ready to say that the donee of this power might not engraft upon the ultimate gift of the whole estate to the grandson, a trust not tending to a perpetuity for the protection of the beneficiary. The power was to limit for “ such estates; ” and that phrase would embrace equitable interests. That such a trust may attend an estate, otherwise absolute, was decided in Ward’s Estate, 13 W. N. 282, and the decision was sustained by the Supreme Court in Kyle’s Appeal. But in the case in hand, the restrictive clause which has been alluded to, does not constitute a trust, and was not intended as a trust by the donee of the power. In terms as clear as well could be invented, ho appointed an absolute estate directly to the grandson, and clogged the gift with a void condition. Having vested the grandson with the legal estate, he took from the trustees, under the donor’s will, all power to act, even if they otherwise possessed it, and rendered even a conveyance by them to the grandson unnecessary. To recapitulate briefly, the auditing judge thinks that the appointment to the children of Charles Rockland Pepper was in excess of the power, not because it transgressed the rule against perpetuities, because it did not, but because it was to members of a class not named in the donor’s will; that the power was a special one, and must be strictly construed; that the donor intended to confer only a power to distribute among children and the issue of deceased children, and there being but one child, the power perhaps ended; and, even assuming that the donee could qualify the absolute estate which was the subject of the power, by a trust intended for the benefit of 'the appointee, the gift of that estate directly to-the appointee, but conditioned against alienation, was in no sense a trust, and was void, because against the policy of the law. Charles R. Pepper is therefore entitled to the said one fourth part, absolutely. But, by deed dated July 2, 18G8, duly acknowledged and recorded, the said Charles R. Pepper assigned and conveyed one half of his entire interest in the estate of his grandfather, George Pepper, to George S. Pepper, as trustee, upon certain trusts declared by the said deed. The capital of the trust estate is therefore awarded, and is directed to be divided as follows: One half part thereof to the said Charles Rockland Pepper in his own right, absolutely; and the other half part thereof to George S. Pepper, upon the trusts declared in the said deed of July 2, 1868. A distribution having been made in accordance with the foregoing, the accountant, George S. Pepper, trustee under the will of George Pepper, and executor of the will of Charles Pepper, excepted to the adjudication: 1. Because the auditing judge decided that the limitations and restrictions upon the estate bequeathed and devised to Charles R. Pepper by Charles Pepper, in his last will, were void, and in excess of the power of appointment given to said Charles Pepper by the will of George Pepper, deceased. 2. Because the auditing judge decided, that the said Charles R. Pepper took an estate in fee, clear of all limitations, under the will of Charles Pepper. 3. Because the auditing judge awarded one half of the principal of the trust estate to Charles R. Pepper absolutely and in fee.
120 Pa. 256U. B. Mutual Aid Soc. v. O'Hara (1888)
ERROR TO THE COURT OE COMMON PLEAS OE LUZERNE COUNTY. Nos. 9 and 10 July Term 1887, Sup. Ct.; court below, Nos. 187 and 188 May Term 1882, C. P. On April 23, 1881, Bernard O’Hara, of Plymouth, obtained two policies of life insurance, or certificates of membership, in The United Brethren Mutual Aid Society, of Lebanon, Pa., each in the sum of one thousand dollars, one for the benefit of his wife, Mary T. 0’IIara, and the other for that of his son, John F. O’Hara. He died the same year, December 14th, and the proper proofs were sent to the company. Payment being refused, separate suits were brought, in debt, by Mary T. O’Hara and John F. O’Hara, on March 28, 1882. At the trial of the two causes together, on March 10, 1887, it was made to appear that in the policies or certificates of membership it was stipulated that if any answers or representations made by the assured in his applications should be found in any respect untrue, the certificates should be null and void. Evidence was introduced as a defence to the actions, from which it was claimed by the defendant that the answers by the assured to certain interrogatories in the application, to the effect that his habits of life were temperate, that he had never been afflicted with asthma, or dropsy, or any other disease, that he had not had any medical attendance during the year prior to his applications and had no family physician, were untrue. Conrad Lee, called for defendant, had lived at Plymouth for eleven years, knew Bernard O’Hara, and was outside superintendent at the mines where O’Hara worked: Q. Whether he was in the habit of coming home sober or drunk? A. Well, as a general thing he came home more times sober than he did drunk. Q. How would he behave himself when he got home? Objected to. Q. How often would he come home drunk on an average in the course of a month ? A. I could not say exactly whether he was drunk or not; he would come in and have a good deal to say, more talk sometimes than he did at others; I judged at that time he had been drinking a little, taking a drink or two. Q. How often in the course of a month would he come home under the influence of liquor? A. I have noticed this perhaps three or four days after pay; that is perhaps the way it ran....... Q. How would he conduct himself at these times at his own home? Objected to as not material. By defendant’s counsel: I propose to show that he came home and behaved uproariously, just as an uproarious drunken man does, and abused his family. Objected to as not material. By the court: I do not think the manner of his treating his family is direct evidence on the matter of intemperate habits. I hardly think this is fair evidence on this question. Objection sustained.3 Thomas J. Phillips, called for defendant, was the inside foreman at the Avondale mines where O’Hara was employed: Q. You knew Bernard O’Hara? A. Yes, sir. Q. Tell us as to whether or not he was afflicted with asthma. Objected, that witness has not been shown competent to pass upon that question. By the court: I suppose in a ease where the question is about a certain disease and not about the general health, it would be incompetent for a man who is not an expert on the subject to define the disease. If you want to prove general poor health or anything of that kind, I suppose you can do it by this witness. By defendant’s counsel: I simply ask this man whether O’Hara was afflicted with shortness of breath, whether he observed that in his daily life? Plaintiffs object that the witness must state the facts and not give his conclusions from the facts. By the court: I think you may ask him whether he was sick, and how he was affected; but you may not ask him if he had any specific disease. Plaintiffs’ counsel make the further objection that the question is leading. By the court: It certainly is leading and will have to bo overruled on that ground. We overrule it on that ground and on the other also.5 The same witness was asked on behalf of the defendant: Q. Did you ever see Mr. O’Hara under the influence of liquor? Objected to. By the court: The habit of life means something more than one drink. Q. Whether you saw him drink more than once ? Plaintiffs’ counsel object that the question should be put in the language of the application. By the court: Objection sustained, question excluded.10 The court, Woodward, J., charged the jury and answered the defendant’s points as follows: We have said to you that a policy of life insurance is, in the eye of the law, a contract. We may say further, and more specifically, that a contract of life insurance is an agreement to pay a certain sum of money on the death of a person, in consideration of the duo payment of an annuity as provided in the policy, during his life. In all contracts of insurance, certain statements are made, stipulations entered into, certain provisos, conditions and by-laws introduced or referred to, and when made part of the policy, they become what is called and are so denominated in the law of insurance, warranties. By a warranty, the insured stipulates for the absolute truth of the statement or statements made, upon penalty of forfeiture of his own right and that of those coming after him, to recover in case of loss, should the statements prove untrue; in other words, the truth is a condition precedent to the right to recover the amount of a life insurance policy. What is called the application for a life insurance-policy, is generally made a part of the policy, and enters into the contract, and therefore must be referred to. In the present case an application for insurance, or as it is called in this particular instance, for membership, in the U. B. Mutual Aid Society of Pennsylvania, was regularly made by Bernard O’Hara. In that application there are certain questions to which are appended his answers. The law applicable to such a case is this: If the applicant makes a false answer as to having had any one of several diseases specially mentioned, although he does so innocently and from ignorance, he forfeits his right to recover the insurance which has been granted to him upon the faith of such answers, which become warranties, and the falsity of which vitiates the contract contained in the policy. Question It in the application in the present case is this: “ Have you ever been afflicted with or had any symptoms of the following diseases; ” mentioning a number of diseases to which it' is not necessary to call your attention, but including the two that have become important in the present controversy, namely, dropsy and asthma; and to that question the applicant answered as appears from the application, “No.” No. 12 of the questions is this: “ Have you ever been afflicted with any other disease or complaint not above mentioned? If you have, state the nature and character of the disease or complaint.” To this also the answer is “ No.” The law applicable to question 12 is this: If there is no wilful misrepresentation in regard to other diseases, the policy is not vitiated, necessarily. There is a distinction in the law between the answer made to a question referring specifically to certain diseases, and to the case of a question referring in general terms to other diseases. In the first case, an inaccurate or false answer is fatal to the policy, although innocently made and in ignorance of the truth. In the second case, there must be shown, in order to vitiate the policy, a wilful misrepresentation. That, as we understand it, is the law in regard to that distinction. [Question 13 is this: “Are your habits of life temperate? If so, have they always been so?” And the reply is “Yes.” Considerable evidence has been introduced on the part of the defendant, and also in rebuttal on the part of the plaintiffs, relative to this question. It is our duty to charge you upon this subject, to define the meaning of this question. The question is not, “Do you drink liquor?” Or, “Are you a total abstainer from the use of intoxicating drink ? ” But is it the custom and habit of your life to refrain from intemperance and intoxication? It is doubtful whether there would be much life insurance business carried on successfully, on any contract more stringent than the one which we interpret this to be. A man who works in the mines day after day, promptly and regularly, who supports his family comfortably, and lives an orderly and respectable life in all regards, is not to be pronounced an intemperate man or a man of intemperate habits, upon evidence that he occasionally has indulged in the use of intoxicating drink.] 4 [We call your attention next to interrogatory 8 in this application: “Have you had any medical attendance within the last year prior to this date? If so, for what disease? Give name and address of the doctor in full.” In regard to this question we say to you that while there is no fixed absolute rule or canon of construction in the matter, it is to have a rational, reasonable interpretation. You observe that the question is a duplex one. “Have you had any medical attendance within the last year, prior to this date? If so, for what disease?” This clearly imports that the attendance of a medical man referred to must have reference to some disease, which means some serious illness of any description you choose; something requiring attention from a medical man, a disease. To illustrate what I mean I will refer to a case in which the question was as to whether a party applying for insurance had ever had a hemorrhage, and he answered “No.” The defence was made to the policy, that he had had nose bleed, which in a strict interpretation is a hemorrhage. But the court said that such an interpretation of that clause in the contract would be absurd and ridiculous, and refused to entertain it as a defence.]1..... We now call your attention to certain points in writing submitted by defendant’s counsel, as follows: 1. The defendant respectfully prays the court to charge the jury that the plaintiffs have not shown such a case in pleading and evidence as is necessary to recover in this action. 2. That according to the evidence as to the contents of the certificate of membership, it contained certain express conditions precedent to a right to recover, and it was therefore the duty of the plaintiffs to affirmatively prove the performance of such conditions, and having failed so to do, they cannot recover. Answer : We decline to affirm those points, and say to you that under our rule of court, the evidence is sufficient. We have examined the authorities quoted by the defendant, but are still of that opinion. 3. That the statements in the applications of Bernard O’Hara and his answers to the questions therein contained, being made warranties, and the express basis of the contract upon which the present actions are brought, the plaintiffs cannot recover if the answers to the said questions were in any material particular untrue. Answer: That point we affirm. 4. Therefore, if the jury find that Bernard O’Hara at the time of making the application for membership of this company was afflicted with asthma, then the plaintiffs cannot recover. Answer: That point we affirm. 5. If the jury find that he was or had been afflicted with dropsy a short time before making said application, the plaintiffs cannot recover. Answer: That point we affirm. 6. If the jury find that Bernard O’Hara had had any medical attendance within the year prior to his making said application, then the plaintiffs cannot recover. Answer: Qualified as it is by our general charge on that subject, we affirm the point.6 7. If the jury find that Bernard O’Hara at the time of making said application was not a man of temperate habits then the plaintiffs cannot recover. Answer: That point we affirm. 8. If the jury believe the evidence of Dr. N. Gr. Whitney, corroborated as it is by the evidence of the admissions of Bernard O’Hara himself, and the other circumstances in the case, then the plaintiffs cannot recover, and the verdict must be for the defendant. Answer: In regard to this point we say to you: If they so believe notwithstanding the contradictory evidence offered by the plaintiffs on the same subject. With these remarks, gentlemen, we leave this case in your hands. The verdicts of the jury were in favor of the plaintiffs, and judgments being entered thereon, the defendant took these writs assigning as error, inter alia: 1. The part of the charge embraced in [ ] 1 3. The refusal of the defendant’s offer.3 4. The part of the charge embraced in [ ] 4 5. The refusal of the defendant’s offer.6 6. The answer to the defendant’s sixth point.6 10. The refusal of the defendant’s offer.10
120 Pa. 266DuBois Borough v. Baker (1888)
1. When an action is brought under the act. of June 11, 1879, P. L. 126, in the name of the husband and wife, for the use of the wife, to recover f, damages for injuries done to the wife, a disclaimer by the husband filed at the time of the trial is too late, and the right to combine the causes of action does not arise. 2. Hence, it matters not that evidence of damages to the husband was given without objection: the right to recover those damages in that action depended upon a compliance with the proviso of the statute.
120 Pa. 272Decker v. Directors of the Poor (1888)
CERTIORARI TO THE COURT OF QUARTER SESSIONS OF HUNTINGDON COUNTY. Nos. 372 and 373 January Term 1888, Sup. Ct.; court below, No. 12 December Term 1887, Q. S. On October 22, 1887, proceedings were brought before two. justices of the peace of Huntingdon county by the directors of the poor of said county, under § 29, act of June 13,1836, P. L. 547, entitled “ An act relating to the support and employment of the poor,” to procure the warrant of said justices authorizing the said directors to take and seize so much of the goods and chattels and receive so much of the rents, issues and profits of the real estate of Paul O. Decker, as in the judgment of the said justices should be sufficient to provide for his wife, Florence Decker, and to maintain and bring up his child, Pauline Decker. The justices made a finding, from the proofs submitted to them, that said Florence Decker was the lawful wife of said Paul O. Decker and the said Pauline Decker, his lawful child, the latter being twelve years of age; that in November, 1875, said Paul O. Decker separated bimself from; his said wife without reasonable cause and deserted his said child, had ever since persisted in said separation and desertion, was not a resident of the commonwealth, and his said wife and child were in destitute circumstances and a charge upon the said county of Huntingdon. They further found that the said Paul O. Decker was the owner of a certain lot of ground in the borough of Huntingdon having thereon erected a large frame hotel building known as the “Washington House.” They therefore adjudged and decreed that the goods and chattels of said Paul O. Decker, and the rents, issues and profits of his-real estate, to an extent sufficient to provide for his said wife and to maintain and bring up his said child, were liable to be taken and seized by the said directors for that purpose and of right ought to be so applied. They therefore authorized the said directors to. take and seize so much of the goods and chattels and to receive so much of the rents, issues and profits of the real estate of the said Paul O. Decker as should amount to the sum of three hundred dollars each year, to be computed from October 22, 1887, and to continue during said separation and desertion, that being the sum which in the judgment of the said justices was requisite and sufficient to, etc. On the same day the said justices issued their warrant accordingly to the said directors, and on the same day the warrant was returned under oath that by virtue thereof the directors had seized and attached the rents, issues and profits of the real estate referred to, in the hands of the tenants, etc., and that said Paul O. ' Decker was not in the county and had no goods or chattels in said county. On December 14, 1887, a transcript of the record before the said justices, showing the information made, the finding and judgment and a copy of the warrant and of the return thereto, was filed in the Court of Quarter Sessions, and the same day, a rule was granted upon the directors of the poor to show cause why the said proceedings and warrant should not be annulled and an order refused. On January 18, 1888, the petition of Thomas M. Conprobst, trustee, was filed, by the direction of the court, with copies of the will of Nicholas Decker, deceased, praying, for reasons sufficiently appearing in the opinion of the court below, that said proceedings be dismissed, annulled, and set aside, etc.
120 Pa. 278Borland v. Stokes (1888)
ERROR TO the COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY. No. 233 January Term 1888, Sup. Ct.; court below, No. 793 March Term 1886, C. P. No. 1. On April 10, 1886, an action of trover was brought by Catherine Borland against Edward Stokes, to recover damages for the conversion of certain of plaintiff’s stocks and bonds. The plea was not guilty. At the trial on October 26, 1887, the plaintiff testified in her own behalf: I am the plaintiff in this case. I am unmarried and seventy-two years of age; have known Ellis Stokes for thirty years; I done his washing before his marriage and afterwards; my first cousin died in 1878, and left me some money. Ellis said if he had a friend to help him, and if I would give him some of my stocks he could get on his feet; he had been appraiser of my cousin’s estate and knew what we got. I gave him some Catawissa preferred stock but afterwards got that all back; it was returned in two certificates instead of one; it came back all right. I gave him some Titusville stock, 500 shares, and afterward four bonds of the Buffalo, Pittsburgh and Western, for $1,000 each. He was to use them, we were to get the interest; they were not to be sold, but to be returned ; I don’t remember exactly what was said when he got them; I think he got them at the Fidelity. He afterwards got 50 shares of Catawissa preferred; he was only to use $450, he kept the whole. Then he got 10 shares of Catawissa preferred. I told him to lift a loan of $411 and to pay it off; he drawed them and paid it off; I told him to sell, but he didn’t. One day I was down at Mr. Allinson’s office, I had a mortgage to pay off in Maryland, and Mr. Allinson told me his agent in Baltimore wanted the money; I went round to the Fidelity to get the money, $900, and Ellis came to me and said Mr. Allinson had sent him to see that I did not get cheated. I gave him the 10 shares of Fire Association, he got me $900, and gave it to me, and said I could have more. Afterwards I had a mortgage paid off on the house Ellis lives in and received some $20,000. I then wanted to pay off all my debts, and especially the loan on the Fire Association, also all other advances; I asked Ellis to let me pay off the loan on the Fire Association, and he said no; I wrote to defendant, he did not answer; then I registered a letter to him. Q. Were any of the arrangements in writing? A. No, it was all verbal. I did send letters but never got answers; the first •I got a reply to was the registered letter; in verbal talks I Said I would like to know what was coming to me, and he would send me accounts; in November or December, of 1885, was the last request for a settlement; before that I had asked ■him, but I can’t say when. You will find by his own statements there when I got a statement. This is the reply I got to the registered letter (letter shown witness); I was never able before I brought suit to get my stocks or bonds; it was November, 1885,1 first asked him for a settlement; I had asked him before that. You have all his statements, they will tell you when I first asked him for a return of the stocks; I asked him for the Huntingdon bonds once, there were five for one thousand dollars; he said he bought the Gunnison on a margin, and had to sell the Huntingdon to take off the margin..... Cross-examined: He said he wanted to get on his feet; he had failed in 1878; he went into bankruptcy; he said if he had a friend he could do so; if I could give him these stocks he could get on his feet, and it would show he had friends ; that was the beginning of his getting these stocks. (This being read to witness, she says it is right.) All I let him have was after he had said this..... ■ After statements of account and certain letters to and from the defendant, were put in evidence, the court, Biddle, J., on motion directed a compulsory nonsuit to be entered. The court, on argument, having refused a motion to take off the judgment of nonsuit, the plaintiff took this writ, assigning as error: 1. The order directing the judgment of nonsuit. ■ 2. The refusal of the motion to take off said judgment.
120 Pa. 284Whalen v. Gabell (1888)
4 oe Philadelphia county. . No. 298 January Term 1888, Sup. Ct.; court below, No. 47 September Term 1887, C. P. No. 4. On September 18,1887, an affidavit to bold the defendant to bail in $500 being filed, a writ of capias in trespass was issued in an action for slanderous words spoken, brought by Mrs. Mary Whalen against Mrs. Jacob Gabell. Both parties were married women.
120 Pa. 288In re County Bridge, Nescopeck Township (1888)
CERTIORARI TO THE COURT OE QUARTER SESSIONS OE LUZERNE COUNTY. No. 446 January Term 1887, Sup. Ct.; court below, No. 188 April Term 1884, Q. S. On November 19, 1881, a report of the grand jury of Luzerne county was filed, setting forth that upon the petitions from certain townships they had considered and recommended favorably, inter alia, the erection of a bridge across Nescopeek creek in Nescopeek township, at a point designated; that the amount proper to be expended thereon by the county of Luzerne should not exceed the sum of $1,500, the abutments, piers and filling in of abutments to be built by the township of Nescopeck in which said bridge was situated, which report was the same day approved. The proceeding was under an act entitled “ An act providing the manner in which county bridges shall be built by the county of Luzerne,” approved April 16, 1870, P. L. 1199. On May 14, 1884, upon the petition of certain citizens and taxpayers of the county of Luzerne praying that the approval by the court of said report, so far as relating to the proposed bridge in Nescopeck township, be stricken off, for the reason that it would be useless and unprofitable to have the said bridge built, a rule to show cause, etc., was granted. On May 26th, another petition of such citizens and taxpayers was presented, setting out as an additional reason for the granting of the prayer, that the township supervisors were about to build a bridge over the same creek. Depositions on the part of the petitioners were filed, showing that in the opinion of the witnesses the proposed county bridge was not necessary and that the building of it would be expensive.
120 Pa. 295Cawley v. Bohan (1888)
ERROR TO THE COURT OF COMMON PLEAS OF LUZERNE COUNTY. No. 237 January Term 1888, Sup. Ct.; court below, No. 59 February Term 1887, C. P. On January 10, 1887, an appeal was taken by the defendant from the judgment of a justice of a peace in an action by Paul Bohan against Thomas Cawley. The transcript, filed on January 14, 1887, showed: Summons returned. On oath of Lial Brown, constable, served......And now Friday, the tenth day of December, 1886, at 4 o’clock P. M., plaintiff appears and asks for adjournment until six o’clock on Friday, the 17th day of December, 1886. Now, December 17, 1886, at 6| o’clock, parties appear. C. F. Bohan, agent for plaintiff. Plaintiff claims $150 on judgment note under seal dated dated December 31, 1874. Defendant denies the signature. Plaintiff asks for a continuanee of the case until Tuesday, the 21st day of December, 1886, at 6 o’clock ,P. M. Now, December 21, 1886, at 6 o’clock, plaintiff appears. Plaintiff sworn to signature of Thomas Cawley on a judgment note in the sum of $150, with waiver of inquisition upon real estate and with waiver of right to appeal and of all exemption laws. Plaintiff claims balance due on note, sixty-two dollars and twenty cents ($62.20), and after hearing, judgment publicly for plaintiff and against defendant in the sum of $62.20 debt and costs, in default of the defendant, at 7: 15 o’clock p. m. Debt $62.20. Now, January 10, 1887, defendant enters an appeal. Domnick O’Maley bail in this case $100, conditioned for the payment of all costs accrued or that may be legally recovered 'against the appellant. On January 19, 1887, upon a verified petition filed on behalf of the plaintiff, a rule was granted to show cause why the appeal should not be stricken off. On a rule to take depositions ex parte defendant, service of which was accepted without prejudice, the defendant testified : “ My name is Thomas Cawley ; am 57 years of age; I live in Pittston township and have lived there for the last twenty-four years; I am the defendant in this suit; I know Paul Bohan; I never signed a judgment note in favor of Paul Bohan ; I do not owe him any money; I think he owes me; I saw the judgment note in this case that Frank Bohan, his son, had before Justice Gowan, of Yatesville; I never signed that note; it was not my signature on the note ; I said so at the time of-the trial. When I saw this note at Yatesville in the office of Esquire Gowan, it appeared to me in the handwriting of three different persons, and written at three different times. I never knew such a note was in existence until the suit. Mr. Bohan never has asked me for money during the past eight years nor claimed to me that I owed him one cent.” •
120 Pa. 299Eustice v. Plymouth Coal Co. (1888)
ERROR TO THE COURT OF COMMON PLEAS OF LUZERNE COUNTY. No. 236 January Term 1888, Sup. Ct.; court below, No 917 October Term 1886, C. P. On October 4, 1886, the defendant appealed from tbe judgment of an alderman in an action brought by John Eustice, by bis next friend, Deborab Eustice, against tbe Plymouth Goal Oo., to recover the wages of John Eustice for work done for tbe defendant. On December 6, 1886, tbe defendant pleaded, non assumpsit, payment with leave, etc., set-off. At tbe trial, on March 9, 1887, on motion of plaintiff, the case was amended by striking out tbe plaintiff as entitled and inserting Deborah Eustice as plaintiff. John Eustice was the son of Thomas Eustice and Deborah Eustice (husband and wife); and was a minor when the services were rendered. It was claimed that Thomas Eustice had deserted his wife and family in 1877, and tbe wife and mother sought to recover under § 8, act of May 4,1855, P. L. 430, providing as indicated in the syllabus. The defendant admitted that the son bad earned the sum of $238.29, but claimed to have paid $31.95 to the son, and to his uncle, Thomas McNeal, with whom he boarded, $206.34. The further defence was made that the son’s wages belonged to his father, who it was alleged had not deserted him and with whom he was actually living at the time of the trial. Deborah Eustice, a witness in her own behalf, on cross-examination, said that her son came to live with her in February, 1886, after he had quit work for the defendant, and that he staid with her till January, 1887. Plaintiff’s counsel: We object to anything about this boy after the close of the time he worked for the Plymouth Coal Company, up until the early part of 1866 ; anything that took place after that we object to. Defendant’s counsel: Our purpose is to show that this boy has not been in charge of his mother, but is in charge of the father; that the father under this act of 1855 has not deserted this boy, but that the boy to-day and in January last was in the custody of his father. By the court: It may be important to ascertain, if it be true that the boy is living with his father, when he began to live with him. Plaintiff’s counsel: We object that it is not cross-examination. By the court: Plaintiff has sworn that the husband deserted her about eight or ten years ago, and has done nothing since towards the support of the family; in cross-examination it may be shown that he has done something.1 The witness then answered that she did not know what time in January, 1887, her son had left her, had not seen the boy since, and did not know where he was. The same witness was also asked: Q. You had Mr. Coursen indicted for adultery with you, didn’t you ? Objected to. By the court: We think we will have to take that, on this question of character.8 Q. You had Mr. Coursen indicted for adulte,ry with you ? Yes, sir. The court, Woodward, J., charged the jury and answered the points presented as follows : First, then, we direct your attention to the law in regard to tlie wages or earnings of minor children, and we say to you that the law is this: That where a minor son or daughter is put to work at any kind of employment, and earns wages, these wages belong to the father in the first instance, and any payment made to any other party than the father, without his knowledge and consent, would be, in the eye of the law, no payment whatever. To this rule, however, there are certain exceptions, to which we call your attention. The first exception is this: That a father may manumit or release his son from the obligation to turn his earnings over to him, and may permit his child to keep the earnings of his labor. This, of course, implies a contract between the father and the child which is respected by the law. This fact, however, is not particularly important in the present case. The ease depends not on the general law on the ' subject of the relations of parent and child, but it is to be determined by a statute to which your attention has already been called by the counsel on either side, and to which now we call your attention also. This act of May 4, 1855, under the second section, provides that in certain cases where a wife has been abandoned by her husband she shall control all the property, real and personal, which she has acquired, without interference from her husband, and may make deeds without his joining, etc. This section of the statute has no particirlar bearing upon the present case ; the third section, however, reads as follows :..... You will observe, gentlemen, that this statute confers certain powers and rights upon the mother, and in certain circumstances puts the mother of the children in the place of the father. The plaintiff in this case claims under the statute and by virtue of it. She testified that her husband left her some eight years since, went away from home and has never returned; that meanwhile he has contributed nothing whatever to her support or the support of her two children. Now, if there were nothing else in the case and this were the truth in regard to it, the mother undoubtedly would be entitled to the wages of her son, and any payment made to the son instead of to the mother would be no payment whatever; but you observe further, gentlemen, that the statute in question provides that the mother, to have the benefit of its provisions, shall afford to the children a good example and properly educate and maintain them, according to her ability; and the plaintiff, the mother, who claims by virtue of this law to recover her son’s earnings, must show not only that he earned the money which has not been paid to her and for which she brings suit, but [she must also show to your satisfaction that she has afforded to her child a good example, and has properly educated and maintained him according to her ability; and this brings us to the question of character, an important question in this case, as you see, under this law. Has this plaintiff established to your satisfaction such a character as the law contemplates when it says that she shall receive the wages of her son ?] B The law of evidence permits a party who alleges bad character to call witnesses who have been acquainted with the person, who have lived in his or her neighborhood, and to ask them whether they know the general reputation of the parties ; if they say they do, the questioner has then the right to ask whether that reputation, according to the speech of the people, is good or bad — in this case — for virtue or chastity, ■ because that is the point upon which she has been assailed. Now, it will be for you to ascertain, gentlemen, under the evidence in this case, whether the testimony of the witnesses who have been called here, establishes the fact that by tbe general speech of the people in the neighborhood where this woman lives, her character for chastity is bad; and we say to you that if you find that to be the truth of the case, then she cannot recover her son’s wages under this statute. If, however, the proof does not satisfy you on that point, if you can account for these rumors on any reasonable hypothesis of good character, she is entitled to have at your hands a just, fair judgment, under all the circumstances. If you find that the plaintiff is such a person as this statute contemplates, then you may find that all the payments by these defendants to the uncle of this boy, are no payments at all, because these amounts should have been paid to the mother and not to the uncle. If, after receiving notice from the mother that she did not consent that her son’s wages should be paid to her brother, the boy’s uncle, the company still persisted in making payments to him or charged them up to the boy’s account, they did so at their own risk and may be compelled by your verdict to pay that money again...... What else we have to say to you in this case, gentlemen, can be said in connection with the written points submitted respectively by the plaintiff’s and by the defendant’s counsel. The plaintiff asks us to charge: 1. That if the jury find that John Eustice was a minor at the time they stopped this boy’s wages for his uncle’s debt, and that his mother was living and ready and willing to support her son, then the verdict should be for the full amount earned by the boy, less the cash paid him by defendant. Answer: We say to you that we can affirm that point, with the proviso, that she has afforded him as required by the statute, a good example and educated him according to her ability, as we have already said in the general charge. With that qualification on the point, affirmed.6 2. That if the jury find from the evidence in the case that the father of the boy deserted his wife and family and 'made no provision of any kind for their support, and that Mrs. Eustice did not authorize the Plymouth Coal Company to stop the boy’s pay for the uncle’s debt, then the verdict should be for Deborah Eustice for the full amount of the boy’s earnings which were withheld for the uncle’s debt. Answer: With the same qualification as we imposed upon the last point read to you, we affirm that point.6 3. That if the jury believe from the evidence in the case that the goods for which the boy’s wages were stopped, were on account of the uncle and not on the boy’s account, and that the mother forbid the keeping of the boy’s wages for the uncle’s debt, then the verdict should be for the plaintiff for such wages as were withheld by the defendant for the uncle’s debt or store bill. Answer. Qualified as the other points were, we affirm that point also.6 The defendant’s counsel asks us to charge you as follows: 1. That before the plaintiff can recover in this case, it must have been affirmatively proved that the father from drunkenness, profligacy or other cause, refused to provide for his child, John Eustice. Answer: We affirm that point.7 2. That if the jury shall find under the evidence that Deborah Eustice, the mother, is of unsuitable character to be intrusted with, the care of John Eustice, the plaintiff cannot recover in this case. Answer: Explained as we have tried to explain this subject in our general charge, the point is affirmed.7 The verdict of the jury was in favor of the defendant. A rule for a new trial being discharged, the plaintiff took this writ assigning as error, inter alia: 1, 2. The admission of defendant’s offers.18 5. The part of the charge embraced in [ ] s 6. The answers to the plaintiff’s points.6 7. The answers to the defendant’s points.7
120 Pa. 306Kinports v. Boynton (1888)
ERROR TO THE COURT OF COMMON PLEAS OF CLEARFIELD COUNTY. No. 53 January Term 1888, Sup. Ct.; court below. No. 54 September Term 1882, C. P. On June 16, 1882, an alias writ of scire facias was issued to revive a judgment, No. 485 September Term 1876, in favor of Porter Kinports against G. K. Kinports, which was served upon Jonathan Boynton, terre tenant, and returned n. e. i. as to G. R. Kinports. On November 13, 1885, an appearance was entered for G. R. Kinports, and on November 17th, judgment was taken for want of an affidavit of defence, against the defendant and terre tenant, for $5,019.46. On .January 16, 1886, upon a rule granted upon the petition and plea of Jonathan Boynton, averring that the judgment sought to be revived never was a lien on his land or any of it, and that he was not a terre tenant of any land bound by the judgment, it was ordered that the judgment entered against Jonathan Boynton be stricken off. At the trial on September 6, 1887, on the plea referred to, the following facts appeared, stated in the order of their history : On October 8, 1874, G. R. Kinports, OAvning in fee a tract of land, 265 acres of Avliich lay in Clearfield and 150 acres in Cambria county, contracted to convey the same to Thomas Tozier for the sum of $22,500, portions of which were payable at ten, thirty and sixty days, and were paid, leaving a balance of $16,500 unpaid. On March 9, 1875, to No. 378 March Term 1875, an action of ejectment was begun in Clearfield county by G. R. Kinports against Thomas Tozier, for the part of the land in that county, to compel the* payment of said unpaid purchase money. On May 29, 1875, by an assignment under seal reciting that John W. Williams had that day indorsed eight certain promissory notes, each for $1,890.36, payable in 4, 6, 9, 12,15, 18, 21 and 24 months, respectively, aggregating $15,122.58, the said G. R. Kinports, to secure said Williams against said indorsements, transferred to him the several payments and instalments of the purchase money due from said Tozier, “ together with all my interest and legal estate in the said land Avith right to proceed in his own name and right for the collection of the same by ejectment or otherwise, with like force and effect as I might or could do if this agreement were not made.” On August 11,1876, the judgment No. 485 September Term 1876, for $3,321.80 in favor of Porter Kinports against G. R. Kinports was entered in the court of Common Pleas of Clear-field county, upon a note dated July 28, 1876. Upon this judgment, a scire facias to revive was issued on August 9,1881, and returned, tarde venit; and afterwards, J une 16, 1882, the alias scire facias was issued on which this trial was had. On October 14, 1876, by an assignment under seal reciting that the eight promissory notes mentioned in the foregoing assignment of G. R. Kinports to John W. Williams were then held by Jonathan Boynton, said J. W. Williams by provisions of like character with those of the foregoing assignment to him, transferred to J onathan Boynton all his estate and interest in the lands sold by G. R. Kinports to Thomas Tozier, and all the unpaid instalments of purchase money, with the right to collect the same in such form as he might think most advisable, with like force and effect, etc; “ This assignment being made by me and accepted by said Jonathan Boynton as collateral security for the payment of the said eight several promissory notes,” etc. On January 22, 1878, Jonathan Boynton, as assignee of the interest of G. R. Kinports, was made a co-plaintiff on the record of the ejectment to No. 378, March Term 1875, above mentioned, and on the same day a verdict was taken for the plaintiff for the premises described in the writ, to be released on payment by defendant therein, Thomas Tozier, in one day thereafter, of $15,510.00, and on January 25, 1878, judgment was entered on this verdict. On April 29, 1878, a writ of habere facias possessionem was issued upon this judgment in ejectment and on July 17,1878, possession delivered to J onathan Boynton. On April 5,1882, Jonathan Boynton by agreement contracted to sell the land to Joseph A. Gray, by whom possession was taken and retained under the contract. After crediting upon the amount of the eight notes held by J onathan Boynton, the price for which the land was sold, and all that was realized out of it for timber, etc., and all that was paid by any one upon said notes, there still remained due upon the notes, as claimed by the defendant, an unpaid balance amounting with interest to $11,000 or $12,000. In his rebutting case, the plaintiff offered to prove by Porter Kinports, the witness on the stand, and others, that the debt, for which the judgment note, dated July 28, 1876, for $8,321.80, (and upon which the original judgment in this case was entered) Avas given, was contracted prior to May 29,1875, and the amount was OAving to said plaintiff by G. II. Kinports, on and before May 29, 1875 : this for the purpose of shoAving that the debt for Avhich the judgment note was given, Avas in existence before the assignment of G. R. Kinports to John W. Williams. Defendant’s counsel object to the offer: 1. That it is not admissible in rebuttal. 2. That it is irrelevant and immaterial. By the court: Now, September 6, 1887, we sustain the objections, not because the offer is not rebuttal, but for the reason that it is incompetent.1 The court, Kiímbs, P. J., charged the jury and ansAvered the points presented as follows: . The issue you are sworn to try, Porter Kinports, plaintiff, and Jonathan Boynton, defendant, involves a controversy which in its nature is an important one, not only as to the amount of money involved, but the principle of laAV which necessarily is involved therein. The proceeding is what is known in law as a scire facias, to revive and continue the lien of a judgment which Porter Kinports, plaintiff, in this issue, had against one G. R. Kinports. The facts in the ease are not disputed on either side. It is not denied that this plaintiff had a judgment note bearing date July 28, 1876, due at one day, and that it was entered on August 11, 1876, upon the records of this county, thereby becoming a lien against G. R. Kinports, if he had any estate or interest in land at that time, upon which any judgment could become a lien. It is not disputed, but seems to be taken as a matter of fact by both parties to this issue, that about or before October 8, 1874, G. R. Kinports was the owner in fee simple of real estate situated in this county, and part of it in Cambria county; that on October 8, 1874, he entered into a written contract with Thomas Tozier, by the terms of which he agreed to sell his title in that land to Thomas Tozier, for a consideration amounting to $22,500. A portion of this purchase money was payable at ten, thirty and sixty days. These amounts thus stipulated in the contract to be paid at these times it would seem were paid, thus reducing the balance of the purchase money due upon this contract to $16,500, $1,500 of which was payable in six months, $7,500 in one year, and $7,500 in two years. On March 9, 1875, an action of ejectment was brought in the name of Gf. R. Kinports against Thomas Tozier, and the parties in possession of this land under him, he having taken possession under this contract, and begun the cutting of timber, to compel a specific performance of this contract thus entered into on October 8,1874. It is not very material in this case what was done in that action of ejectment. It does appear that sometime afterwards, several years, perhaps, or more, a verdict was entered in favor of the then plaintiffs against Tozier, for the premises, to be released on the payment of the balance of the purchase money, fixed by that contract, in one day. The money was not paid, and a writ of possession was issued, and the possession of that property under this proceeding was delivered to Mr. Boynton, the defendant in this case. That delivery óf possession took place July 17, 1878. Subsequent to the entry of the judgment by Porter Kinports against G. R. Kinports, on August 11, 1876, a writ of scire facias to revive the lien of that judgment was issued on April 9, 1881, which would be within five years from the date of its entry, and would continue any lien that it had upon any real estate or interest in real estate owned by G. R. Kinports, at the time it was entered. Mr. Boynton was named as terre tenant in that writ. The sheriff, as we remember, made no service of the writ, and returned it, tarde venit. It came to his hands too late to serve. An alias scire facias was issued on June 16, 1882, which .was subsequently served on Mr. Boynton as terre tenant, and under proceedings had in that judgment which are not necessary to recite here, this issue is raised, which we are trying. The defendant has proven, (and it is to be taken as admitted because there has been no denial of it; the testimony was that of reputable witnesses whom we are bound to believe when their testimony is neither denied nor their credibility attacked,) and has offered in evidence papers to show that the balance of purchase money, amounting to $16,500, that was due on the contract from Thomas Tozier, the purchaser, to G. R, Kinports, was assigned on May 29,1875, to John W. Williams, of Indiana county. He (Williams) subsequently on October 14,1876, assigned all his interest, which he received by virtue of the previous assignment, to Mr. Boynton. The whole question in this ease turns on the legal rights of these parties under those papers and those assignments. There is no question here but that these assignments were made for a valid and sufficient consideration. Nor is it disputed or denied that the notes mentioned in these agreements, for which these assignments were made, to indemnify and secure Mr. Williams for his assignment of May 29, 1875, have not been paid by G. R. Kinports, or any of the other parties to those notes; so that Mr. Williams has become responsible, and if he has not already paid them, is liable to pay them. It is also admitted, so far as this case is concerned, that after applying all the moneys that were received by any of the parties holding the paper, that there yet remains due and unpaid upon them a consideration of from ten to twelve thousand dollars. There is no evidence, in this case, gentlemen of the jury, that the plaintiff in this case, or G. R. Kinports, or any one for him, has ever offered to pay this balance, or to pay these notes. As was said by the counsel in their argument, it is principally a question of law for us to consider and ascertain the rights of these parties under these writs and assignments. If we err in our conclusions, of course the parties have a complete and adequate remedy, and our mistake can be ascertained and corrected. [Now, gentlemen of the jury, it has been contended in this ease, very ably and very earnestly, that this paper of May 29, 1875, in its legal incidents and effects is a mortgage, and, not having been placed upon record, as required by the act of 1820, known as the Recording Act, that therefore, it has all the iniirmities of an unrecorded mortgage; and, not having been placed upon record, and Mr. Kinports having put his judgment upon record, that it has a prior and legal right as a lien upon this remaining alleged estate of G. R. Kinports. With this contention we find ourselves unable to agree. We do not think that the assignment of this purchase money constitutes that instrument a mortgage, or such an instrument, as, if not recorded, attaches to it all the Infirmities of an unrecorded mortgage.] s [At the time this judgment was entered, there was no remaining beneficial interest in G. R. Kinports. He had sold the land to Thomas Tozier; he held the legal title simply as trustee for him, and, so far as he himself was concerned, could use it to enforce the payment of the purchase money, but when the purchase money was paid to him, he was bound to convey. When he (Kinports), assigned this purchase money to John W. Williams, it drew with it all the security that the legal title gave to G. R. Kinports, just as the assignment of a paper secured by a mortgage carries with it the mortgage, although it is not marked assigned at all. So that when this assignment was made to Mr. Williams, whether it was made absolute or made to secure him and indemnify him against the payment of those notes, there remained no interest in G. R. Kinports on which this judgment of Porter Kinports could attach, except the naked legal title, with the possibility that when these notes were paid, the assignment would revert to G. R. Kinports, and in such an event, his (Porter Kinports’) judgment would attach to that interest thus re-vested in him. It depended upon the happening of a contingency which did not happen; therefore, Porter Kinports had no lien upon anything except the naked legal title which remained in G. R. Kinports. He might have had a right to pay these notes, or tender payment of them, and demand a conveyance to him, and thereby have secured something upon his judgment to which his lien would attach, but it is not shown or claimed that anything of the kind was done.] 3 [We instruct you as a matter of law, under the evidence in this case and under the facts, that there was no lien acquired by his judgment further than that upon the naked legal title, and that stood to the use of John W. Williams, unless these notes were paid; they not having been paid, that assignment carries with it, in legal effect, that legal title, and that legal title, we think, is vested by subsequent assignment in Mr. Boynton. There was no title in G. R. Kinports, against which the lien of this judgment can be revived, so as to give it legal effect. We instruct you under these facts and circumstances, and under the law as we conceive it to be, to find a verdict for the defendant.] 4 The plaintiff’s points are answered: 1. That under the undisputed evidence in this case, prior to October 8, 1874, Gideon R. Kinports was the owner of a tract of land situated in Burnside township, Clearfield county, Pa., containing 300 acres, more or less, against which this judgment is sought to be revived. Answer: Affirmed. 2. That under the agreement of October 8, 1874, between Gideon R. Kinports, and Thomas Tozier, an estate in said land remained to the said G. R. Kinports, which was susceptible of being conveyed or mortgaged, and upon which the lien of a judgment against said Kinports would attach. Answer: That is true, until the purchase money was assigned on May 29, 1875, and from and after that date the judgment was a lien upon nothing but the naked legal title which, stood to the use of Williams, and those claiming under him under these assignments.5 3. That the agreement or paper writing dated May 29,1875, between G. R. Kinports and John W. Williams, was a conveyance of the estate of said Kinports in said land, as a security for, or an indemnity against the liability which said Williams incurred, by indorsing the eight notes mentioned in said agreement, and was not an absolute, unconditional conveyance of said estate or interest in said land by Kinports to Williams; and, being a conveyance of said estate or interest in said land as security, it was in law but a mortgage. Answer: For answer to this point we refer to our general charge.6 4. That said agreement, assignment or paper writing, of May 29, 1875, never having been recorded, it was in law an unrecorded mortgage, and gave to the said John W. Williams or his assignee, Jonathan Boynton, no lien upon the estate of said G. R. Kinports, in said lands, as against a judgment entered against said G. R. Kinports, for a debt existing prior to May 29,1875. Answer: Denied.7 6. That, the judgment of Porter Kinports against G. R. Kin-ports having been entered in the Common Pleas of Clearfield county, August 11, 1876, became a lien upon the estate, right, title and interest .of G. R. Kinports in the lands aforesaid. Answer: For answer we refer to our general charge.8 6. That, under all the evidence in the case, the verdict of the jury should be for the plaintiff, against Jonathan Boynton as terre tenant, and that judgment should be entered upon said verdict de terris. Answer: Denied.9 The jury found “for the defendant under the instructions of the court,” and judgment was entered on the verdict. Thereupon the plaintiff took this writ, assigning for error: 1. The refusal of the plaintiff’s offer.1 2-4. The parts of the charge embraced in []sto4- 6-9. The answers to the plaintiff’s points.510 9 10. The binding instructions to the jury to find in favor of the defendant.
120 Pa. 320Appeal of Powers (1888)
PROM THE DECREE OP THE COURT OP COMMON PLEAS OP CRAWPORD COUNTY. No. 153 January Term 1888, Sup. Ct.; court below, No. 91 February Term 1887, C. P. To the number and term of the court below Patrick H. Powers filed bis petition and libel praying a divorce from his wife Margaret Amelia Powers, representing: That on April 10, 1866, a marriage was contracted and celebrated between the libellant and Margaret Amelia Powers, the respondent, and although.....yet so it is, that the said Margaret Amelia Powers in violation of said laws and her vows aforesaid has wilfully and maliciously deserted the libellant and absented herself from his habitation without reasonable cause for more than two years last past. And the libellant for a further and different cause of divorce says, that the said Margaret Amelia Powers, in violation of said laws and her vows aforesaid, has offered such indignities to the person of your petitioner as to render his condition intolerable and his life burdensome, and thereby forced him to withdraw from his house and family. Wherefore, etc. The answer of the respondent admitted the marriage, denied all the charges of the libel, and averred: 1. That while she in all respects demeaned herself as a wife should do towards her husband, yet the said Patrick H. Powers did for a number of years prior to his desertion of her, treat her in a cruel and barbarous manner, and use indignities toward her, and did strike and physically abuse her at different times, and continued his ill-treatment up to the time he left her and his home. ■' 2. That in January, 1874, the said Patrick H. Powers did wilfully and maliciously and without any just cause, desert her, and leave his house, declaring that he would not live with her any longer. ■' 3. That afterwards he refused to live with respondent, and removed his goods and effects from their joint domicil, and lived separately and apart from her, but from 1874 to 1881, did annoy and ill-treat respondent by remaining away from his house, where respondent continued to live and where they jointly lived up to the time of his desertion, in the day time, and coming secretly about and into the house at night, for the purpose, as respondent believes, of injuring her character. The cause was heard upon bill, answer and testimony, taken before an examiner. While the testimony was being taken, the respondent filed her petition representing that the libellant owned a large amount of property, real and personal, was engaged in active business, and in receipt of an ample income therefrom, and praying for an order upon him for the payment of @500, for her support, pending the litigation, and for counsel fees. From the testimony taken it was claimed on the part of the libellant, in substance, that the respondent was cross and disagreeable, severe in her denunciations of her husband, began to abuse him as soon as he came into the house; would not join with her husband in deeds for the conveyance of his property, and so caused him great loss and inconvenience; that she drew a revolver upon him and threatened to shoot him; fired a revolver at him, the bullet whistling, by his head; called him vile names at the death-bed of a child, said he would rob, steal, murder, and burn buildings, and her conduct prevented him from attending the funeral of the child. 'The respondent claimed from the testimony that the separation was caused by an unwarrantable desertion of her by her husband in 1874; that disagreements between them commenced in 1871, soon after the second child was born, which were such ás. are sometimes incident to married life and were not of a serious character; that between 1874 and 1881, while she was living alone, the libellant would visit the house, generally at night and secretly, and say he wanted no one to know he went there; on one occasion, in April, 1880, he visited the house at night, made false accusations of unfaithfulness, and offered such indignities and insults to the respondent that she was impelled to commit suicide and, taking up a pistol belonging to Samuel, the eldest son, ran out upon the front porch with the intent to take her life, and was deterred by the cry of her little boy Harry, who had awakened, when she fired the pistol in the air; that the libellant owned about 1400 acres of land, of which about 400 acres were improvedalso several houses, and was extensively engaged in the lumber business; two sons were born to the parties; Samuel, in January 1867, and Harry, in May 1871; that the latter died in June 1880, and the respondent continued to reside in the same dwelling, occupied by the parties soon after their marriage, during which time she was to some extent supported by libellant. The libellant testified that he owed §34,000 or §35,000, and had not sufficient property to pay his indebtedness.
120 Pa. 328Petition of Raudenbusch (1888)
FOE A MANDAMUS TO THE COUET OF QUAETEE SESSIONS OF PHILADELPHIA COUNTY. No. —■ January Term 1888, Sup. Ct. On April 23, 1888, Wallace G. Baudenbusch filed bis petition in tbe Supreme Court, showing as follows: That lie resides at No. 18 North Twelfth street, Ninth ward of the city of Philadelphia, and has for the last past five years carried on the business of selling liquor at retail at the said house, having been heretofore licensed to carry on said business in conformity with the laws of this commonwealth heretofore existing. That, desiring to continue said business and apply for a license therefor, and being a citizen of the United States, of temperate habits and good moral character, be, in conformity witli tlie terms of tbe act of assembly of May 13, 1887, P. L. 108, on January 81, 1888, filed witli tbe clerk of tlie Court of Quarter Sessions of the county of Philadelphia bis petition for a license to sell at retail vinous, spirituous, malt or brewed liquors, or admixtures thereof, for the period of one year from June 1, 1888; the said Quarter Sessions having fixed by rule or standing order the fifth day of March, 1888, as the time at which applications for said license should be beard. That he paid to tbe said clerk of tbe Court of Quarter Sessions the sum of five dollars for expenses connected therewith, and the said clerk did publish in two newspapers, the Philadelphia Press and the .Be,cord, being two of the newspapers designated by said court, tbe name of your petitioner, among others, as an applicant for such license, with his residence and the place for which his application was made, not less than fifteen nor more than twenty-five days before tbe said time fixed by such court for the hearing of such applications. That his said application was not made for a license to sell in any room where groceries were or are sold at wholesale or retail. That the petition to the said Court of Quarter Sessions filed by your petitioner contained: [all the averments required to be set out in such petition by § 5, act of March 18, 1887, were verified by the affidavit of the petitioner made before the clerk of the said court, and a true copy thereof attached, and marked Exhibit A.] That there was annexed to said petition a certificate signed by twelve reputable qualified electors of said ward of said city of Philadelphia in which such liquors are to be sold, setting forth the facts required by the terms of section 6 of said act, a copy of which certificate is hereto annexed marked, Exhibit B. That he further answered the printed questions required by all applicants for said license to be answered by said court, a copy of which answer is hereto annexed marked, Exhibit C. That he also presented a petition to the said court in favor of granting his said application, signed by fifty-four business men of his neighborhood, a copy of which is hereto annexed marked, Exhibit D. That no remonstrance against his said application was presented by or on behalf of any person. That upon the said March 5th, being the time fixed for a hearing of his said application, your petitioner presented himself as an applicant for said license before the Hon. D. Newlin Fell, Hon. Robert N. Willson, Hon. Jas. Gay Cordon and Hon. E. Amedee Bregy, judges of the Court of Common Pleas of the said county of Philadelphia, and assigned by the said judges as of their number to hold a Court of Quarter Sessions for the purpose of granting licenses under the terms of said act of assembly of May 13, 1887; and, being called by the court to the bar of the court and being duly sworn and interrogated as to his rights to said license and the truth of the facts set forth in his said application, and having made answer to the same in affirmance and corroboration of his said application or petition, and having made no statement which in any way conflicted with his right as aforesaid, or contradicted any statements made by him in his said petition, and no evidence, petition, remonstrance or statement of counsel or of any other person whatever, being made or offered, or any objection of any kind being made against him or his said application, lie was permitted to depart and dismissed from any further hearing. That no plans, maps, reports, statements or evidence of any kind, written or oral, was offered at said hearing against his said application or petition, nor did said judges of said court at said hearing require the production of any further testimony, or in any way intimate or object to the granting of said license, until on the second day of April, 1888, it was announced by the said judges of said court that the said application or petition of your petitioner was refused, although your petitioner at the said time was ready and willing to enter into the bond, and had ready John W. Land and Alfred Werrick to become his sureties on his said bond, in conformity with the terms of the said act and of his petition as aforesaid, and was then ready and willing to pay, as classified and required to pay, into the treasury of said city, being a city of the first class of this commonwealth, the sum of five hundred dollars and all attendant costs and expenses. And your petitioner avers that the said judges of said court, arbitrarily and contrary to law and the act of assembly in that behalf made, refused to grant to your petitioner the said license as applied for by him as aforesaid. Your petitioner further avers that he is a citizen of the United States, of good moral character and temperate habits, and has invested in his said business under previous license laws a large amount of money, in all the sum of $6,000, and established a business which affords or yields a livelihood and support for himself and his family, and that he rents the same from John M. Doyle, the owner of the premises on which said business has been and is to be conducted, and the same not being situated in the neighborhood of any churches, schools or educational establishments. Your petitioner further alleges that he never has made sales of liquors or kept his tavern open upon Sundays or violated or offended against any license law or any other law of this commonwealth, and asserts that, having kept a reputable and orderly place for the conduct of his said business and the accommodation of the public and entertainment of strangers or travelers, he is, under the laws and the said act of assembly of May 13, 1887, entitled to a license as prayed for under said application; and he further asserts that under the terms of said act, having complied with all the requirements of said law, the said court or the judges thereof cannot refuse his said application or the granting of his said license. That from the decree of said court refusing said license there is no appeal, no bill of exceptions or writ of error; and, the action of the said judges of said court being a refusal to grant to your petitioner that which the law entitles him to, he having complied with all the requirements of the law, he prays that the said judges of the said Court of Quarter Sessions who heard his said application and petition and who refused to grant the same, may be commanded, first, by an alternative mandamus to show cause why the prayer of said petition or application should not be granted, and, second, by a peremptory mandamus to do fully all that is required to be done by the said act, and justice. Exhibits A. B. and D. attached to the foregoing petition are sufficiently indicated. Exhibit C. was as follows: QUESTIONS TO BE ANSWERED BY APPLICANT. 1. Are groceries now sold upon the premises mentioned in your application? Answer: No. 2. Will you allow groceries to be sold upon the said premises during the continuance of the license, if it is granted? Answer: No. 3. Have you ever been indicted or convicted of the violation of any law of this commonwealth, relating to the sale of liquors, or'of keeping a disorderly house or bawdy house? If so, when and where ? Answer: No. 4. Have you ever been convicted of any criminal offense? If so,, when, where and what? Answer: No. 5. Has any license granted to you for the sale of liquors ever been revoked? If so, when? Answer: No. [Verified.]
120 Pa. 344Appeal of Dabney (1888)
The only estate of a testator consisted of a sum of money unsecured in the hands of a brother, who owned valuable real estate heavily incumbered. By agreement of all parties interested in the estate, the brother, having ■ executed to the executor junior mortgages upon his real estate and as- . signed to the executor the leases thereon, was permitted to collect the rents, the receipts therefrom to be accounted for in a certain manner: Held, 1. That, as the executor had acted in good faith and as a prudent man would act in the management of his own affairs, he was not liable to account for rents not paid over to him but applied by the debtor to purposes other than those specified in the agreement. 2. Assignments of error merely alleging error generally in, “ dismissing exceptions,” “in confirming an account,” or, “ in confirming the adjudication,” point out no error in the account or adjudication for consideration in this court.
120 Pa. 357Smith v. Kingston Borough (1888)
120 Pa. 368Shires v. Commonwealth (1888)
error to the court oe quarter sessions oe centre COUNTY. No. 247 January Term 1887, Sup. Ct.; court below, No. 3 November'Term 1886, Q. S. On November 23, 1886, an indictment was found a true bill, charging Michael Shires and J. Q. A. Kennedy, agents for Henley’s Improved Monarch Fence Machine, a patented invention, with taking from George W. Ocker, in payment for the right to use, vend and sell the said machine in certain counties, a certain promissory note of which the following is a copy: $315.00. Centre Hall, Pa. August 12,1886. Three months after date, I promise to pay to the order of Shires & Kennedy, three hundred and fifteen dollars and — cents, at Penn’s Yalley Bank, without defalcation for value received, waiving the right of all valuation, appraisement, stay, homestead and exemption laws. George W. Ocker. well knowing the consideration of said note or instrument to consist in whole or in part of the right to make, use or vend a patent invention or invention claimed to be patented, etc., without having the words “ given for a patent right,” written or printed prominently and legibly on the face of said note, as required by the act of April 12, 1872, P. L. 60. At the trial, on November 24, 1886, the court, Fubst, P. J., charged the jury as follows: On April 12,1872, the legislature of this state passed an act. of assembly which I will read in your hearing:— Whenever any promissory note or other negotiable instrument shall be given, the consideration for which shall consist in whole or in part, of the rigid to make, use or vend any patented invention or inventions, (the word vend means to sell,) claimed to be patented, the words, “ given for a patent right,” shall be prominently and legibly written or printed on the face of such note or instrument above the signature thereto; such note or instrument in the hands of any purchaser or holder, shall be subject to the same defences as in the hands of the original holder. If any person shall take, sell or transfer any promissory note or any other negotiable instrument, not having the words, “ given for a patent right,” written or printed legibly and prominently on the face of such note or instrument, above the signature thereto, knowing the consideration of such note or instrument to consist, in whole or in part, of the right to make, use or vend any patented invention or inventions claimed to be patented, every such person or persons, shall be deemed guilty of a misdemeanor.— The policy or spirit of the law consists in this, where a note was given based upon such consideration, to have the words, “ given for a patent right,” written on the face of it, so that if any fraud had been practiced upon the maker of the note, he might set it up as a defence against the payment of the note in the hands of the holder of it, because by the commercial law a negotiable note may be passed into the hands of a purchaser of it for value before maturity, and the maker of the note would have to pay it, notwithstanding, between the original parties, it was totally worthless and void. Therefore, to destroy the negotiability of notes given for a patent right, the legislature passed this act requiring that such notice should be written thereon, viz.: “ given for a patent right,” so as to preserve a defence to the maker thereof. : The penal provisions of this act of assembly you will find in the second section, which makes it a misdemeanor for any person to receive or take such a note, knowing the consideration of such note to consist of the right to vend a patented invention, without having written thereon prominently or printed legibly the words, “ given for a patent right.” [The commonwealth alleges that this note is given in whole or in part for the purpose of vending this patented invention; that a part at least of the consideration of this note is given for the right to vend a patented invention in the territory of the township • of Green, in the county of Clinton. The evidence adduced on the part of the commonwealth also shows that in connection with this transaction, five machines were furnished to Mr. Ocker, which it is alleged were fixed at the price of $63.00 a machine, so that the five machines at $63.00 apiece would amount to $315.00. The defendants allege that these five machines constituted the sole consideration of this note, while the commonwealth alleges that the right to vend in the described territory is a part of the consideration of the note, as well as the machines, and that Mr. Ocker would have no possible use for five of these “ Monarch Fence Machines,” except in connection with the right to sell in certain territory. And papers are offered in evidence bearing date of the 11th or 12th of August, when this contract was entered into, which speak plainly upon the subject of the contract. The simple question, therefore, for you to determine is this: If the consideration of this note, in whole or in part, consisted of the right to vend this patented invention in this territory, and the defendants knew the consideration to be such, then these defendants are guilty under this indictment.]1 If on the other hand you find from the evidence that the entire consideration of this note was made up of the five machines, then the defendants could not be convicted, because, under this act of assembly, it is not made a penal offence to sell the machines, notes given for the manufactured article alone need not have written upon their face these words. But if the consideration in whole or in part consisted of the right to vend this patented invention in this territory, then this case falls directly within the penal provisions of this act of assembly. The evidence has been discussed in your hearing and it is not our purpose to review it at all. It is plain and simple. The witnesses are few and their testimony is short, and you remember it distinctly. The jury having returned a verdict of guilty, the defendants moved in arrest of judgment for the reason: Because the act of assembly of April 12, 1872, creating the offence for which the defendants were indicted and of which they were convicted, contravenes the constitution of the United States and the laws thereof relative to patents and patent rights, and is therefore unconstitutional. This motion was refused and the defendants were each sentenced to pay a fine of $150 and the costs of prosecution. The defendants then took this writ assigning as error: 1. The part of the charge embraced in [ ] 1 8. The overruling of the motion in arrest of judgment.
120 Pa. 374Erie City v. Butler (1888)
ERROR TO THE COURT OE COMMON PLEAS OE ERIE COUNTY. No. 26 January Term 1888, Sup. Ct.; court below, No. 126 May Term 1887, C. P. On April 6,1887, a scire facias issued sur a municipal claim in favor of Erie city, for the use of the Barber Asphalt Paving Co. v. M. J. Butler, owner or reputed owner, to recover assessments for the paving of Eighth street. It appeared that on July 20, 1886, the Barber Asphalt Company entered into a written contract with the city of Erie to pave said street with an asphaltum pavement, at a price and according to specifications contained therein, the contractor to receive in payment an assignment of the assessments, with the city’s right of lien therefor, against abutting owners, for all except crossings, which were to be paid for by the city. The company commenced the work on August 2, 1886, and completed it on October 23, 1886. At the return day of the writ the defendant owner appeared and filed an affidavit of defence averring: The real plaintiff, the Barber Asphalt Paving Company, to secure the contract for laying said pavement on Eighth street in said city of Erie, and to induce deponent and other owners of lots on said street to sign petitions to city councils, by its agent and manager, one C. O. Warren, represented to many lot owners along said street, and it was stated to deponent by (x. D. Fassett, who obtained deponent’s signature to said petition, and said Warren caused it to be generally understood and believed, that the cost of said pavement should not and would not exceed two dollars for each square yard ; that deponent would not have signed said petition but for this representation so made by said Warren, and the belief and reliance of deponent on the same ; that in fact the amount now claimed by plaintiff is over three dollars per yard, and more than thirty-three per centum above the cost stated by said C. O. Warren, agent of said Barber Asphalt Paving Company, to induce signatures to said petitions. That there was no competition for said work of laying said so-called asphalt pavement, but that the said plaintiff secured the contract for the same at its own price from the city authorities. That, as will appear from the entire transaction, and as deponent believes he can prove, it must have been, and was, well known to the said Barber Asphalt Paving Company, as well as to the authorities of the city of Erie, that there was, in fact, no legal power or right in said city to levy and collect assessments for the said proposed pavement, and a much larger price was agreed upon for this reason; that the said price is not only largely in excess of the cost, as represented by said Fassett and others, by said Warren that it would be, but it is unconscionable and extortionate. That, by the terms of the contract made between said Barber Asphalt Paving Company and the said city of Erie, it was, among other things, expressly stipulated as follows: “ And it is expressly agreed and understood that the city of Erie shall not be liable for the payment of any part of the cost of said pavement, except street intersections, whether said assessments shall be collected or collectible from the property owners or not, save as to actual amounts received by the city treasurer from the property owners to apply on such assessments; but the contractor may, at his own expense, file municipal liens in the name of the city of Erie, for his use, against the property assessed, if he so desires.” That, by the stipulations and specifications of said contract, the so-called asphalt was agreed to be laid on a foundation of concrete. That the most essential part of said pavement is the foundation, it being indispensable to the permanency and value of the same that the material of such foundation should be a real and substantial concrete, coalescing into a solid mass, so as to become hard and. to make a solid bed, thoroughly bound; but that in fact the material used for said bed or foundation was a poor and inferior stuff, wholly unfit for the purpose for which it was used, being soft and incapable of hardening into a solid mass, or of making a good and proper foundation, as provided for in said contract. That it was further provided by said contract that all of said work was to be well done, and with good materials, and to be subject to the inspection and approval of the city engineer, but that deponent has been unable to find any record in the proper office showing such approval by said city engineer. That, in consequence of said omissions and the poor and inferior quality of said material, the said pavement is not in accordance with the contract stipulations aforesaid, but was poorly and cheaply done, in a careless, slovenly and inferior manner, and is not worth the price sought to be collected for the same; and it would be a wrong and oppression upon deponent to compel him to pay for said pavement. That, during the progress of said work, the improper and inferior manner in which it was being done attracted public attention, and a written protest, signed by a large number of lot owners was presented to said C. O. Warren, the agent and manager of said Barber Asphalt Paving Company, the same having the signatures of thirty-eight lot owners, and being served on said Warren on October 23, 1886, but that no attention was paid thereto by said Warren or said Barber Asphalt Paving Company. That no proper care or attention was paid by said Barber Asphalt Paving Company to preparing the ground for said pavement; that it was not rolled and packed down as it should have been and as was required by said specifications, and so loose and soft was the earth where the concrete, or substitute for concrete, was placed thereon, that in a very few days numerous places in said pavement sank so that large patches had to be, and were, cut out and replaced in order to attempt to render the said street passable and apparently level and even for the time being. That deponent is advised and believes that, under the particular facts and circumstances as herein set forth, his defences arising from matters of fact, as stated, should be available, and will be available, as a defence to this suit, as against the real plaintiff, the said Barber Asphalt Paving Company, as well as against said city of Erie, the nominal plaintiff. And deponent further says that the facts herein set forth are true and are in part from his own knowledge, and in part from information received from other persons, but all of which he will be able to prove, if permitted, on the trial of the case.
120 Pa. 384New Era Life Ass'n v. Musser (1888)
No. 435 January Term 1888, Sup. Ct.; court below, No. 448 August Term 1885, C. P. ■ An appeal was taken by the defendant from the judgment of a justice of the peace in favor of ,The New Era Life Association of 1876 against E. N. Musser, for $21.63, the amount of several assessments upon a policy of insurance for $1,000, issued to the defendant, during the life of the policy.
120 Pa. 390Bennett v. Morrison (1888)
|error to the court oe common pleas oe warren county. No. 148 July Term 1887, Sup. Ct.; court below, No. 92 September Term 1884, C. P. On August 19, 1884, a summons in ejectment was issued by Catharine Miller (afterwards marked to the use of Henry W. Morrison and Mary C. Morrison, in right of said Mary C. Robinson), against. Joseph C. Bennett and Ann Bennett, to recover possession of a lot of ground in the borough of Warren. The defendants pleaded, not guilty. At the trial on October 6, 1886, it was admitted of record that Rachael Weatherby should be treated as the common source of title, when the plaintiff proved possession by the defendants ; deed, Rachel Weatherby to James Bennett, dated October 25, 1875, in pursuance of a contract of sale dated April 9, 1864, deed, James Bennett and wife to Mary C. Morrison, dated October 3, 1883; deed, Henry W. Morrison and wife to Catharine Miller, dated May 12, 1884; deed, Catharine Miller to Mary C. Morrison, dated November 3, 1884; and then plaintiff' rested. Joseph C. Bennett, a defendant, testified, in his own behalf, that along in 1862 Chester Dennison was in possession of the lot, built a house on it, the same house that is still upon the premises; that Dennison lived in that house until about the first of August, 1863, when witness gave him $15 for possession ; “ he delivered the key up to me for possession ; ” that on August 4th the witness let Mr. Hill occupy the house until the following spring, so as to repair his own house that winter; that about April 1, 1864, witness moved back into the house which Mr. Hill had occupied and had remained in it ever since; that the lot was then inclosed and had been when occupied by Dennison. “ Q. State whether, when you went into possession of the premises, you went in by permission by James Bennett or from Mrs. Weatherby. A. I had no leave whatever; never had anything to say or do, or any contract, with anybody whatever but Mr. Dennison.” The witness testified also that he had paid the taxes on the property since 1863, and was corroborated as to his possession and the payment by him of the taxes, by Daniel Gross and John Jones* collectors, and as to possession by other witnesses. In rebuttal, the plaintiff put in evidence an admission of record that Rachel Weatherby, if present in court, would testify that some time prior to 1862, she had sold the lot in controversy to Chester Dennison by articles of agreement, and that, on April 15, 1862, she caused a writ of ejectment for non-payment of the purchase money to issue against said Dennison, for said land, to No. 60 June Term 1862, and on September 6th of the same year obtained a judgment in said action. This judgment, it was stated, had been obtained by default. The record of said ejectment, the judgment in which had not been enforced by execution, was also put in evidence, and James Bennett, the grantee in the deed from. Mrs. Weatherby, called, who testified that in April 16, 1863, he bought the interest of Chester Dennison in the -lot and received from him his contract with Mrs. Weatherby; that after-wards he purchased by a written contract the interest of Mrs. Weatherby: “ About the time I made this trade I was stopping in Warren, with father and mother. They lived in that old house back of the foundry. Three brothers lived there then with them, Tom, Joe and myself. This matter of the purchase from Dennison was frequently talked of in the family, and in Joe Bennett’s presence; many times every day. He never said anything to me about having bought Dennison out; I never knew anything about it until yesterday.” The witness testified, further, that after the death of his parents, Joseph had agreed to pay him $25 per annum rent for the property, and the taxes. Other testimony was adduced in rebuttal of the plaintiff’s case. The court, Brown, P. J., charged the jury and answered the defendants’ points as follows : The plaintiff having exhibited a title to the property in dispute perfect on its face [we think there is no evidence to go to the jury of such adverse possession in the defendants and those under whom they claim, &s will defeat the plaintiff’s right to a verdict.] 3 Therefore we say to you that upon the undisputed evidence your verdict should be for the plaintiff. The defendants’ points are : 1. That the recovery of judgment by Mrs. Weatherby in the action of ejectment brought by her against Chester Dennison terminated the contract and all privity between them, and the possession held by Said Dennison thereafter was hostile and adverse to that of Mrs. W eatherby. Answer: Refused.1 2. If the jury believe that Chester Dennison transferred his possession to Joseph Bennett, the defendant, such transfer was an assertion of his hostile and adverse possession as against Mrs. Weatherby and everybody else. Answer: Refused, so far as the same is claimed to be applicable to the case on trial under any evidence in the case.8 The jury returned a verdict for the plaintiff. A new trial being .refused and judgment entered, the defendants took this writ assigning as error: 1, 2. The answers to the defendants’ points.1 8 3. The part of the charge embraced in [ ] 3
120 Pa. 395Hatfield v. Commonwealth (1888)
No. 143 January Term 1888, Sup. Ct.; court below, No. 19 November Term 1886, Q. S.> On November 24, 1886, the grand jury returned as a true bill an indictment charging “ That Thomas Hatfield, late of said county, yeoman, on the twenty-eighth day of September, and as well before as after said mentioned date, in the year of our Lord one thousand eight hundred and eighty-six, at the county aforesaid and within the jurisdiction of this court, with force and arms, etc., did…
120 Pa. 405Schmidt v. McGill (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY. No. 116 July Term 1887, Snp. Ct.; court below, No. 106 September Term 1884, C. P. No. 1. On September 11, 1884, an action in caso for negligence was begun by Mrs. Mary McGill against Christian Schmidt, to recover damages for personal injuries. At the trial on March 28, 1887, it was made to appear that on May 27, 1884, Mrs. McGill was crossing Eleventh street on Susquehanna avenue, when she was struck by the pole of a beer wagon driven up Eleventh street by John Foelker, an employee of the defendant. Susquehanna avenue runs east and west, and Eleventh street north and south. The team was passing from south to north; Mrs. McGill was walking from east to west on the north foot-way of Susquehanna avenue. She testified: “ I had been to the meat store at Ninth and Susquehanna avenue. It was Tuesday morning, May 27,1884. I started to go home and was walking along Susquehanna avenue. I was coming to the corner of Eleventh street, and I knew that the cars came down Eleventh street. I looked about and saw that the road was clear. I turned my head around a little to see whether cars or anything was coming. In an instant I was knocked down. The pole struck me on the leg. I was picked up. Mr. Dougherty stood me up. My leg went under, and I said: ‘ Oh, my leg is broke! ’ Dougherty hallooed to his barkeeper or somebody for a chair, and put me on it. I was then carried home. I laid down on the lounge down-stairs, until the doctor came. He said he would have to get another doctor, my leg was broke. He came back about five o’clock with the other doctor to set my leg. My suffering commenced then. I had to put my leg in a sand-box. I had the box on nine weeks. Then I was put in a hammock for three days, but that didn’t do well and I had to go back to bed and put the box- on again another week. After that I got up and put my clothes on. Gradually I got on crutches.” On cross-examination, she said: “ I was going home on the north side of Susquehanna avenue. When I approached Eleventh street, I did not look down Eleventh street. There is a vacant lot on the southeast corner of Eleventh and Susquehanna avenue. I could have seen down Eleventh street half way to Diamond street but I did not look. I had a sunbonnet on. It came down over my face and was tied pretty tight......I passed Dougherty on his own corner. I did not see the wagon then. Did not see the wagon at all. Did not hear it coming. I looked ahead and saw the road clear before me and then I looked up for the car. I looked straight across Eleventh street. Did not look up or down Eleventh street. I did not hear the wagon. If I had looked down Eleventh street, certainly I could have seen the wagon coming. Can’t say whether I saw a car coming down Susquehanna avenue or not. Did not notice the car at all. Don’t know exactly how far I had got across Eleventh street when I was struck. It all came so suddenly when I was struck. I told you before I don’t know exactly where I was when I was picked up on the track. My foot kind of slipped out when I was struck. Can’t say how I fell. I felt the pole strike me. As far as I can say it was the pole that struck me. I felt it. Something struck me. I could not say for sure that I was struck. Can’t say whether I fell on a cobble-stone. I know the pole struck me. I did not stumble and fall as I know of.” John F. Dougherty testified: “Mrs. McGill was just crossing Eleventh street on north side of Susquehanna avenue. Saw wagon come at pretty good gait so as to strike her. I hallooed and threw np my left hand. He paid no attention. Came right on. Wagon struck her and knocked her about twelve feet or so. I ran to pick her up. She said, ‘ Oh, my leg is broke! ’ My wife or niece came out and brought a chair and I put Mrs. McGill on it. She said she was Mrs. McGill. I then took her home. Wagon came at a right fast trot for a beer wagon. Driver did not slacken speed when he came to crossing.” Other eye-witnesses described the occurrence, and it was shown that the injuries received caused great pain and suffering and resulted in a permanent shortening of the plaintiff’s right leg about one and three-fourths inches. At this time the street cars ran down Eleventh street. On behalf of defendant, Fred. Foelker testified: “I had two horses. Was loaded about half full. I was going up Eleventh street towards Susquehanna avenue. I was driving easy. A car came around Susquehanna avenue and down Eleventh street. I turned out for it at the turnout, and then went on straight. I was into Susquehanna avenue before Mrs. McGill crossed the curb-stone. I saw her coming along Susquehanna avenue. I got to Susquehanna avenue before she got to curbstone. She saw the horses when they were about two feet away from her, jumped back and fell towards the right. She fell on the crossing-stone. The wagon was in the tracks. I turned out of the track to the west side of Eleventh street. She had a basket which fell out of her hand when she fell.” The court, Biddlk, J., charged the jury and answered the defendant’s point as follows: This is an action brought by Mrs. McGill against Christian Schmidt to recover damages for an injury inflicted by his driver. It is not denied that Foelker was Schmidt’s driver at the time of the accident, so that if he was guilty of negligence, the defendant is the proper person to sue. This accident occurred on a public highway, where both parties had a right to be, but both parties must exercise that right in an ordinary and reasonable manner. It is impossible to define their exact duties, and the ordinary and reasonable care must depend upon the circumstances of each particular case. There is no obligation on the part of persons driving along the public streets to haul up their horses and stop at every crossing. Nor must people look in every possible direction for vehicles approaching and cipher out how long it will take them to arrive at the crossing. Each must exercise reasonable and ordinary care. Of course, more caution must be used at crossings than at other parts of the highway, for that is where the stones are placed to cross. The obligation is mutual. Each must use reasonable and ordinary care. This being an action for negligence, the plaintiff must establish that fact. If both parties are at fault, the verdict must be for the defendant. You should be satisfied that there was negligence on the part of one party alone. The case has been gone over thoroughly by both counsel, and you have had the plans shown you. Mr. Dougherty and Miss Nagle both testify that the driver was on the other side of Susquehanna avenue when they first saw him, and he says so himself in his testimony. Now you must consider whether it was negligence for Mrs. McGill to attempt to cross then, and whether he should have stopped. If the plaintiff establishes her case, you will consider the question of damages. The damages will be compensatory. I don’t think there is any question of vindictive damages in this case. In considering the question of damages, you will take into account the direct expenses incurred, the loss of time, bodily suffering, and any incurable injury. These are the elements of the damages. Of course, the mere fact of an accident is not proof of negligence. Your own common sense will tell you that. Counsel for the defendant requests the court to charge the jury as follows:— 1. If the jury believe that at the time of the alleged accident the defendant’s driver was traveling in an ordinary manner, the defendant is not liable for an injury resulting from the use of the public street. Answer: Refused:1 The jury returned a verdict in favor of the plaintiff for |3,000. Judgment being entered, the defendant took this writ assigning as error: 1. The refusal of defendant’s point.1 2. That the charge of the court was inadequate in this, that it did not refer to the facts proved at the trial, and did not direct the attention of the jury to the contributory negligence of the defendant in error.
120 Pa. 414Pittston Coal Co. v. McNulty (1888)
ERROR TO THE COURT OE COMMON PLEAS OE LUZERNE COUNTY. No. 208 January Term 1888, Sup. Ct. ,• court below, No. 168 February Term 1884, C. P. On February 1,1884, an action in case for negligence was begun by John McNulty, by his next friend and father, Martin McNulty, against The Pittstom Coal Co., to recover damages for injuries alleged to have been caused by the negligence of the defendant. At the trial on December 12, 1887, it was made to appear that on September 27, 1888, John McNulty, a lad of twelve years who for some time had been in the employ of the Pitts-tori Coal Co., in the work of oiling the machinery of the breaker, was sent by the outside-boss, at the request of the .mining-boss, into the mine to act as a driver, because of a scarcity of employees that day off on an excursion. The lad was furnished with a mule by the driver-boss and put to work drawing loaded cars from a heading out over a side track upon the main track on which the loaded cars were run down to the foot of the slope, to be hoisted into the breaker. The mule was attached to the car by an extension of the trace chains to a crosspiece called a stretcher, or spreader, about two feet and a half behind which was a hook to connect with the car. As the loaded car on the side track approached the main track, it would run slowly, of its own weight towards and upon the main track and thence down the main track to the loaded cars which had preceded it. The mule would be detached from the car at the junction or near it, turned off the track, and the car allowed to move on down. The plaintiff testified, in substance, that when he had brought his last car out upon the main track, in the evening, he reached over to detach the mule by lifting the hook as the car was slowly moving of its own weight, when the mule suddenly started and tightened the stretcher so that it struck him on the breast and threw him beneath the car where four fingers were crushed from his left hand; he was alone at the moment the accident occurred, and was not acquainted with the mule’s propensities. The plaintiff’s counsel then offered to prove by a witness who had frequently driven the mule in the mine, that he was a mule that would jerk, kick, run away; that he was vicious, and had a bad reputation generally among the boys in the mine. This was objected to as being irrelevant, for the reason that it had not been established that the accident occurred through the viciousness or evil propensities of the mule, and the offer did not propose to show notice to the owners of the alleged character of the mule. By the court: We will admit testimony as to the witness’s knowledge of the character of the mule. Under this offer the plaintiff called a number of witnesses who testified from observation and experience that the mule would sometimes bite and kick, and that when he was to be attached to a car it was often necessary that another boy should hold him at the head, otherwise he would run away, to be afterwards caught with difficulty at a door or elsewhere. At the close of the plaintiff’s case, a motion for a compulsory nonsuit was denied, when the defendant introduced testimony to the effect, inter alia, that of the eighteen or twenty mules in the mine, in the care of the driver-boss, the most of them would run off, or attempt it, when being hitched to the car, unless they were held at the head; and that this mule had been used in the mines for several years and no complaint had been made against him. Testimony was also introduced from which it was claimed that the plaintiff was improperly riding XTpon the bumper of the car, and fell therefrom when he was injured, and that he had been warned against so riding as dangerous. The court, Rice, P. J., charged the jury and answered the points presented as follows: Now, what is the negligence complained of ? We may remark before stating the answer to that question, that the cause of action here is not that the plaintiff was taken from the work in which he was engaged and put at more hazardous work; that is not the ground upon which the plaintiff claims to recover ; nor could he recover upon that ground, under the testimony in this case. So that this testimony with regard to what was said between the mother and Mr. Hennigan and Mr. Tench, a short time before the accident, and the testimony as to what was said to the boy at the time he went down into the mine, is not very material in the disposition of the question which has been raised. He alleges that being employed in the mine to drive the mule which was used for hauling coal out of the workings, the company was bound to furnish him with reasonably safe appliances and instrumentalities for that purpose, and that in this particular case the company was bound to furnish him with a reasonably safe mule. It is claimed that the company was negligent in not furnishing him with a proper and suitable animal for the purpose of the work in which he was engaged. That is the allegation of the plaintiff, and to that allegation the testimony has been directed; and to the consideration of the testimony as it bears upon that allegation you will direct your attention. We may say to you, in the first place, that the employer does not warrant the safety of his employees. The law does not impose such an obligation as that upon an employer. It would be impossible for an employer to warrant that his employees should be absolutely safe and free from danger. It does, however, impose upon the employer an obligation which has been thus stated, and an obligation which we think existed in this case. “ A master does not warrant his servant’s safety; he, however, is under an implied contract with those whom he employs, to adopt and maintain suitable instruments and means with which to carry on the business in which they are employed.” Now, that being the nature of the obligation of the defendant to the plaintiff, the question is, whether the defendant. failed in the performance of that duty. In determining whether or not the appliance or instrumentality or, in this case, the animal, is reasonably safe, you are to take into consideration the nature of the employment. You are also to take into consideration the nature of the appliance or instrumentality. In other words, the law does not say that the employer shall furnish to his employees a machine, an instrument, an appliance or an animal, in the use of which he shall be entirely free from danger. That would be impossible from the very nature of the case. For example: if a man is employed to run a locomotive engine, which is a dangerous agency, in undertaking that work he assumes the risks which are ordinarily incident to the use of such an agency. A man employed about a sawmill is employed about a dangerous agency; no human skill or care or diligence will make such a place absolutely safe. Bo in the use of the mules in the mines. We may say that they are notoriously used there for the purpose for which this mule was used. We think it entirely safe to say that they are necessary for the purpose of hauling out the coal from the workings to the shaft or slope; and in considering whether or not the employer has performed his duty towards his employee, it is not for the jury to say that some other animal might have been safer than the mule, and therefore that the employer was guilty of negligence in using the mule instead of using some more tractable animal. In determining whether or. not this was a reasonably safe instrumentality you are to take into consideration the nature of the work which was to be done and the nature of the instrument which is ordinarily employed for that purpose, and, hence, any peculiarities which are incident to the mule as distinguished from other animals. But it is claimed, further, upon the part of the plaintiff, that this mule was a vicious mule; and that it was by reason of his vicious nature that this accident occurred. Upon this question of fact there is a discrepancy, if not a conflict, in the evidence, which you must determine as best yon can, bearing in mind that in this case, as in all other civil cases between man and man, you are to decide in accordance with the credible testimony in the cause. Yon are to take into consideration what were the opportunities of these various witnesses for knowing what were the habits and character of this animal, and what is the distinctness of their recollection. If any interest has been manifested in .their testimony or appeared in the other testimony in the case, which would cause them to vary from the truth, you are to take that into consideration, also, in weighing their testimony. But in case you should find as matter of fact that the mule was a vicious mule in certain particulars, you are to inquire further whether or not the accident was the consequence of the mule’s viciousness in any particular. Some of the witnesses on the part of the plaintiff have testified that the mule would bite, kick and run away. I think it entirely safe to say that the mule’s habits as to biting and kicking are not involved in this case ; because it is not alleged by any testimony that the injury came to the plaintiff by reason of the mule’s viciousness in these respects. It is claimed, however, that the mule was in the habit of running away. In case you should find that to be a fact, then you will inquire still further whether or not the accident was the result of that propensity or habit of the mule. It is proper at this point to call your attention to the question of the plaintiff’s contributing in any way to the accident complained of..... But in case you should find, under our instructions, that the plaintiff was not in any degree guilty of contributory negligence, then you will recur to the question which I stated a few moments ago, namely, was the accident the result of any vicious habit which it is shown’ the animal had at that time? If you find as a matter of fact that it was merely the result of a starting up which an ordinarily safe and tractable animal might make under the circumstances, then we think that the accident would not be traced to the vicious habits of the animal and therefore would not be imputable to any negligence upon the part of the company. If, however, you find from the testimony that it was the result of an attempt of the mule to run away, and that this was the habit and had been the habit of the mule for some time previous to that, then this was not such an animal as the defendants were bound to furnish to the plaintiff in and about his work, and they may be held liable for the consequences which resulted therefrom. . . Defendant’s counsel request us to charge you: 1. That the evidence in this case fails to establish the right of the plaintiff to recover, and the jury should find, for the defendant. Answer: We decline to charge as requested in that point, because we think that there are questions of fact which should be submitted to you and which should not be decided by the court.1 8. That if the jury believe from the evidence that the injury alluded to was not occasioned by the viciousness of the mule plaintiff was driving, the verdict must be for the defendant. Answer: This point is affirmed. 4. That if the jury believe the injury complained of was occasioned by the negligence of the mining-boss in sending the. boy into the mine, or of the driver-boss in giving him the mule he was driving, the verdict must be for the defendant. Answer: We decline to charge as requested in that point. 5. There being no evidence in the case to show that the defendants had notice or knew of any defect in the character of the mule given to McNulty, the verdict must be for the defendant. Answer: We decline to charge as requested in that point. The verdict of the jury was in favor of the plaintiff for $500. Judgment being entered, the defendant took this writ, assigning as error: 1. The refusal of defendant’s first point.1
120 Pa. 425Holt v. Pie (1888)
ERROR TO THE COURT OF COMMON PLEAS OE CLEARFIELD COUNTY. No. 102 July Term 1886, Sup. Ct.; court below, No. 185 May Term 1885, C. P. On March 9,1885, an action in assumpsit was brought by J. J. Pie, surviving partner of Pie & Gamier, against D. W. Holt, to recover the value of 270,743 feet of hemlock lumber, sold and delivered at $8 per thousand, under a special contract claimed to have been made in July, 1881.
120 Pa. 441Cavanaugh v. Buehler (1888)
No. 155 January Term 1887, Sup. Ct.; court below,’No. 200 May Term 1880, C. P. On April 16, 1880, a summons in covenant was issued in a suit by G. W. Buehler and Thomas H. Robinson against Ellen Cavanaugh, executrix of Thomas Cavanaugh, deceased, to recover a balance of purchase money claimed to be due upon a contract for the sale of real estate. On July 10th the defendant pleaded, covenants performed absque hoc.
120 Pa. 458Woodward, Graybill & Co. v. Shumpp (1888)
ERROR TO THE COURT OE COMMON FLEAS OE CUMBERLAND COUNTY. No. 4 July Term 1887, Sup. Ct.; court below, No. 431 August Term 1885, C. P. On August 19,1885, an action in case for negligence was brought by Felix Shumpp against Charles R. Woodward, John D. Graybill and John G. Bobb, trading as Woodward, Gray-bill & Co., Limited. The plea was, not guilty. At the trial on January 18, 1887, testimony was introduced by the plaintiff from which it appeared: On August 24,1883, the plaintiff, then in the employ of the defendants who were engaged in the coal, grain and forwarding business, in Carlisle, was directed by Mr. Bobb, one of tbe defendants, to assist him in shifting a car upon a track of the Cumberland Valley R. Co., which runs east and west by the defendant firm’s place of business. A horse was attached by the plaintiff to the west end of the ear, while Mr. Bobb ascended to the roof and managed the brake. The car was thus moved westward to a certain point, when the brake was applied, the car stopped and the plaintiff directed to move the horse and attach him to the east end of the car, which was to be moved some distance eastward upon another track. The plaintiff loosed the horse and moved him by the south side of the car, to and upon the track at its east end, Mr. Bobb remaining at the brake at the west end. As the horse was about to be attached, Mr. Bobb loosed the brake and the car started eastward. The plaintiff, still trying to attach to the car, drove the horse eastward, trying with his right hand to attach the hook to the car-bumper, and holding the line with his left hand. Going in this manner for fifty or sixty feet, calling several times to Mr. Bobb to stop the car, his left foot became fastened between a guard-rail and the north rail of the track, and, the car continuing in motion, he tried to throw his body outside the track, but his foot remained fastened and his left leg was crushed between his ankle and knee. Railroad iron lay piled up at the side of the track at the place of the accident. On cross-examination of the plaintiff, in his ease in chief, it appeared that he had been helping in the shifting of the cars as long as he had worked around the warehouse, over twenty years, and knew it was dangerous to try to hook a car when it was moving. The plaintiff having closed his case, the defendants moved the court to direct a compulsory nonsuit for the reason that the plaintiff had not offered such evidence as justified a verdict in his favor, being by his own statement an employee of the defendants, and at the time of the accident in discharge of a duty which was a part of that for which he was employed; and it further appearing that he was, by his own showing, guilty of contributory negligence in going before a moving car and in remaining there when he had an easy way of avoiding all danger. By the court: Our view is about this : This motion raises this question, did the plaintiff act as an ordinarily prudent man, •with a like relation existing between him and the defendant, and under like circumstances, would have avoided? If he did not do so, and his failure to do so contributed to the injury, he was guilty of contributory negligence. If he did act as an ordinarily prudent man, situated as he was, would have acted^ then we do not think he would be guilty of contributory negligence. The fact that we may conceive that the plaintiff in the light of subsequent results might have acted in a manner by which this injury would have been avoided, does not alter the case. It does not clearly appear to us, from the evidence already submitted, that the plaintiff did not act as an ordinarily prudent man would have acted, like situated, and therefore we would not be justified in taking this question from the jury. The motion for a nonsuit is overruled.1 At the close of the case on the testimony, the court, Sadler, P. J., charged the jury and answered the points presented as follows: Points on the part of the plaintiff: 1. If the jury believe that the injury to Felix Shumpp resulted from the negligence of John G. Bobb, the plaintiff is entitled to recover, and the verdict should be against all the defendants. Answer: If you find that the plaintiff’s injuries were caused by the negligence of John G. Bobb alone, he is entitled to recover. 2. If the jury believe that John G. Bobb released the brake from the car before the plaintiff had succeeded in attaching his horse to the car, and that the plaintiff exercised all the care that a reasonable and prudent man could, while endeavoring to carry out the instructions of his employer, and the motion of the car was caused by the release of the car brake, and the downward grade of the road, then the plaintiff is entitled to recover. Answer: Affirmed, unless you find that the plaintiff was negligent in going upon the track for the purpose of attaching the horse. 3. If the jury believe from the evidence in the case that Felix Shumpp, the plaintiff, went with the horse on the railroad track in the honest pursuit of his employment under Woodward, Graybill & Co., the defendants, and in obedience to the command óf Mr. Bohb, one of the defendants, who was his master and employer and who ordered him to do the work, and in the honest belief as a prudent and cautious man that while the employment was dangerous but not so much as to threaten immediate injury, but that it was reasonably probable that he could safely do so with the exercise of prudence and caution, and he did exercise the prudence and caution of a reasonable man, and by the negligent conduct of Mr. Bobb in the management of the brakes of the car Mr. Shumpp was injured, and could not have been injured except for such negligent conduct of Captain Bobb, then the verdict should.be for the plaintiff. Answer: Affirmed, if you find the facts to be as stated in this point.8 Points on the part of the defendants: 1. The evidence of the plaintiff shows that he was in the employ of the defendants; that at the time of the accident he was doing work which he had been employed to do, and which for many years he had been in the habit of doing, and with the risks and dangers of which he was well acquainted, and, if his own testimony be believed, he stepped in front of a moving ear, and put himself and remained in an extra hazardous position; and that the direct cause of the accident was the want of care on his own part in watching his footsteps, and that this want of care was due to the distraction caused by his knowledge of his danger, and by watching and guarding against the extra danger of a moving car which he could have avoided; under these circumstances he cannot recover, and the verdict should be for the defendants. Answer: We cannot affirm this point as stated, but refer to you for determination, the question whether the accident of the plaintiff was in any degree due to a failure on his part to exercise reasonable and ordinary care. If the accident was not due alone to the negligence of Mr. Bobb, and was contributed to in any degree by the plaintiff he is not entitled to recover.3 2. If the court should decline to affirm the first point, then if the jury believe that the plaintiff knew the danger of the position he assumed in front of a moving car and attempted to hook the horse to it, and continued in that dangerous position for a distance of some 60 feet until Ms foot caught in the guard rail, and that he had ample time while passing over that distance to move outside of the railroad tracks, then his conduct was not that of an ordinarily careful and prudent man, and he cannot recover in this action. Answer: If the jury find the facts to be as stated in tins point, and further find that the plaintiff was negligent in assuming the position that he did in front of the car, then we instruct you that he would not be entitled to recover in this action.4 3. The plaintiff must show that the proximate or immediate cause of the accident was the negligence of John G. Bobb alone, and if the jury believe that the carelessness or negligence of Shumpp contributed in any way to the injury, or that the accident was due even in a slight degree to the want of proper care on the part of Shumpp, then the verdict must be for the defendants. Answer: Affirmed. We charge you generally: On the 24th day of August, 1883, the plaintiff was seriously injured on the Cumberland Valley Railroad, a short distance west of this, Carlisle, borough. It appears he was in the employ of the defendants, and being requested by one of them, followed him to the warehouse of the said railroad company and procured a car for the use of their firm; that while on the errand, and while an effort was being made to put a car on the siding, the accident happened which caused the harm to Mr. Shumpp. It passed over the lower part of his left leg, crushing it so that it had to be amputated, and the other one was so hurt that a considerable portion of the integument had to be removed from a portion of it near the foot. The plaintiff was confined to the house for tM’ee or four months, about two of them being spent in his bed, and his capacity to earn wages has been largely reduced. A wooden leg has been substituted for the lost one. He charges that the harm thus came to him was the result of negligence on the part of Captain Bobb, one of the defendants, tMs negligence consisting in the loosening of a brake before the horse was attached to the car, and in not heeding calls to stop it after plaintiff found that he was unable to fasten the hook to the car, and he seeks in this action to recover damages on account thereof..... The defendants do not deny that the plaintiff was hurt as stated by Mm, but they insist that it was not the result of any negligence on the part of any member of their firm, but that the accident was the result of a misfortune due to the want and exercise of proper care on the part of the plaintiff, for wMch they would not be responsible; and they further insist that upon the showing of the plaintiff himself and the witnesses called in his behalf, as well as by those who testified on the part of the defendants, that he was guilty of negligence which contributed to the accident. You will most carefully keep in mind and review the testimony submitted to you in this case. Much of it is in direct conflict and utterly irreconcilable as to the causes which produced the accident and the conditions surrounding the occurrence. The negligence of Captain Bobb, as affirmed by the plaintiff, is specifically denied by the defendants. If Mr. Bobb and his witnesses state what is the truth in the case, there can be no recovery. Now, here is your first inquiry. What is the truth? And in making this inquiry it is proper to keep in view the fact that the burden is upon the plaintiff. He has instituted this action to recover money from the defendants. He must establish his right to recover, before a jury would be justified in finding in his favor. The burden is upon him, therefore, to satisfy you by the weight of the evidence that he is so entitled, otherwise your verdict should be for the defendants. If the injury was not caused to him by the negligence of Mr. Bobb, then, however much you may pity him, you would not be justified in assessing damages upon the defendants on account of the same. There is another most important matter, in our opinion, for your consideration in this case, and that is the one of contributory negligence. If you should find that Mr. Bobb was negligent and loosened the brakes, and thus caused the car to start before the horse was attached, or negligently failed to hear the calls of the plaintiff to stop the car after it had started, as insisted upon by him, then inquire if the injury suffered was due to the negligence of Mr. Bobb alone, or was it the result, as well, of negligence on part of the plaintiff, because, if the latter contributed to it in any degree, however slight, the law will not permit Mm to recover damages on account of the same. Where a misfortune would not have happened to a man except for his own fault, or where it could have been avoided by the exercise of ordinary caution on his part, he is not entitled to recover from another, although the other may have contributed to it even in a much greater degree than the injured one. The exercise of ordinary care is required of plaintiff as well as defendants, and what is ordinary care is to be judged by the nature of the business or employment. What would be ordinary care in the discharge of a duty where there is no dangerous risk to person or life incident to it, might be gross carelessness when such risk and danger did exist. The care and prudence demanded must in this particular case, as in all others, be graduated by the character of the risks and hazard of the business in which the parties were engaged. [If Mr. Shumpp was, therefore, negligent in assuming the position he did in front of the car, then the injury which subsequently befell him was contributed to by himself, and he would have no redress against these defendants; but if he, in the line of his employment, and in obedience to the general direction of the defendants to assist in moving the car, undertook a duty which was not such as would not or should not have been undertaken by an ordinarily prudent and cautious person, then he was properly before the car, and if through the negligence of Mr. Bobb, and without default of his own, he was injured, the defendants are responsible, even if under the excitement caused by an apparent danger to his person he did not act with the same deliberation and judgment which should have controlled his action under other circumstances.]5 It is also proper here to state that this action is founded upon the alleged negligence of Mr. Bobb committed while at the western end of the car, and that your inquiry should be so limited; that the plaintiff knew Mr. Bobb was not on the front end of the car, and with this knowledge he attempted to attach the horse to it, and he cannot now complain that the former was not in charge of the brake at the end to which he attempted to fasten the horse. The law is that if one in the service of another suffers an injury by the negligent acts of the employer, the latter is responsible in damages. It is not the character of the employment which determines the liability, but the fault of the master. When a man engages to do hazardous work, he takes the risks which are attached thereto, but if hurt comes to him from the negligent acts of the one who hired him, he has the right to be compensated in damages, and this is so whether the business is a risky one or not. It is also true that a firm is legally responsible for the negligent conduct of one of its members which results in an injury to a person employed by it, and engaged in the discharge of the business of the firm...... The verdict of the jury was in favor of the plaintiff for $800. Judgment being entered, the defendant firm took, this writ, assigning for error: 1. The refusal of the motion for a compulsory nonsuit.1 * 2. The answer to the plaintiff’s third point.8 8, 4. The answers to the defendants’ first and second points.3 4 5. The part of the charge embraced in [ ] 5
120 Pa. 470Short v. Miller & Co. (1888)
ERROR to THE COURT OE COMMON PLEAS OE MCKEAN COUNTY. No. 347 January Term 1888, Sup. Ct.; court below No. 220 May Term 1887, C. P. On April 5, 1887, upon tbe petition of Sampson Short, a judgment creditor of Childs, Willis & Loomis, the court ordered a feigned issue to try the validity of a certain mechanics’ lien entered in favor of Augustus Miller and Peter T. Kennedy, partners as Miller & Co., against R. H. Childs, Wm. Willis and E. R. Loomis, partners as Childs, Willis & Loomis. In the issue as framed, Miller & Co. were plaintiffs, and Sampson Short, defendant. At the trial on June 21, 1887, P. T. Kennedy was called on behalf of the plaintiffs: Q.’ Upon what security and credit did you make this sale ? Objected to by the defendant, as being incompetent and irrelevant, there being no evidence that witness participated in the sale. By the court: Objection overruled.1 A- On the credit of their building the refinery and having purchased this piece of land described. The facts of the case and the questions involved sufficiently appear in the charge of the court, Olmstead, P. J. This is an issue framed under the law of Pennsylvania to determine the validity of a mechanics’ lien. It seems that Childs, Willis & Loomis, of Kendall borough, were the owners or had possession of a lot of land upon which they built an oil refinery. It is undisputed that they purchased lumber of Miller and Kennedy, under the firm name of Miller & Company, for the use of this refinery, to be used in the construction of the refinery. Miller & Co. entered this lien against the property under the laws of Pennsylvania. It is not shown in evidence, but that is unquestionably the case, that Childs, Willis & Loomis became embarrassed and there became judgment creditors, and among them was this defendant. An assignment was made by Childs, Willis & Loomis, for the benefit of their creditors, to Alfred Short. The property was sold by the assignee under an order of court and converted into money, and the money was brought into court for distribution. An auditor was appointed by court to distribute this money to the lien creditors, whether by mechanics’ lien or judgment lien creditors, as they should be entitled to receive it under the law. This controversy here .now originated before the auditor. It would appear that Miller & Co., the plaintiffs in this case, claimed a part of this money that was in court for distribution by this auditor, on this mechanics’ lien; and it would appear that Sampson Short, the defendant in this issue, claimed this money or a part that was in the hands of the auditor, either as a judgment lien creditor, or a mechanics’ lien creditor or some other creditor, I don’t know what, and it is not important in this case. The auditor made a report to the court upon the subject, stating in effect that these two parties were claiming this money, and an issue was framed under the rules of practice of the court by which the matters involved were to go to the jury for determination, and that is really the question that you are here to try. The controverted questions in this case are more of law than of fact, and in the view we take of the law of this case, if you find certain facts, and it is fair I should say that those facts are not controverted at all, the plaintiffs, Miller & Co., have a lien on the fund, and your verdict should be for the plaintiffs, if you find the facts that 1 shall submit to you. It is contended by defendant’s counsel that this structure or property is not such a property as that a lien can be filed against it, and that it is -not a subject of a mechanics’ lien under the laws of Pennsylvania, and for that reason the plaintiff cannot recover. That is a legal question, and we had the same question before us in a case yesterday, and I can see hardly a shadow of difference between the two cases on that question. And we held yesterday and we now charge you again, that this building is such a structure as is a subject of a mechanics’ lien law in the state of Pennsylvania. Defendant’s points: 1. That the property against which the alleged lien is filed is not the subject of a mechanics’ lien and that the claim of the plaintiffs cannot be sustained. Answer: We answer this point in the negative.3 2. That as to such portions of said lumber as was used in the construction and erection of the tank house and condenser, and in fencing the land, the plaintiffs cannot recover. Answer: We cannot affirm that point. As it is put, we answer it in the negative under such general instructions as we shall give to you hereafter on the subject.4 [The questions of fact, although they appear from the paper to be quite numerous, resolve themselves into two or three questions. And as we have said to you there doesn’t seem to be any controversy between the witnessses or any contradiction of evidence bearing upon them, yet we cannot make a verdict for you. That is to be made by you.] 8 Now we say to you that if you are satisfied from the evidence that the property was furnished by the plaintiffs as charged in the bill to the extent of some ten or twelve hundred dollars, it is not very material which, on the credit of this structure, this erection, whatever it was; if you find from the evidence that it was furnished to Childs, Willis & Loomis to be used in the construction of this refinery — to be used generally in the construction of this refinery — or was furnished upon -their order for that purpose, and went there for that purpose, that the plaintiffs are entitled to recover. There doesn’t seem to be any controversy; Mr. Kennedy and Mr. Miller both testify on the subject, and Mr. Childs is sworn, and I do not understand his evidence to be in the slightest degree in conflict with the testimony of Miller and Kennedy; they testify alike that this property was purchased for that purpose and it was used for that purpose, except, as Mr. Childs says, that a considerable amount of the lumber, and that amount is not designated and we have no way of ascertaining it, was used in the construction of the fence; and it is claimed by defendant’s counsel that there can be no finding for the plaintiffs for that part of the lumber; and also that the lumber was used for other purposes connected with the buildings, two or three buildings that were designated. We do not concur in the view of the counsel for the defendant upon that question. We say to you in a general way that if you find from the evidence that this lumber was furnished to Childs, Willis & Loomis for a-general purpose, to bo used in the eonstmction there, that no matter if some of it was used in the construction of a fence, a walk or other things that were to some extent incident to the use and occupation of the property for an oil refinery, we say to you that the verdict in the case would be for the plaintiffs. [And hence we say if you find from the evidence, and there is no conflict in the evidence, that this property was furnished as charged, and in the amount as charged, to this defendant on the credit of the building and went into the buildings in a general way, as it is testified by all the witnesses, that your verdict will be for the plaintiffs, notwithstanding the fact that some of it may have been used in the particular buildings designated in the points of the counsel, and notwithstanding that quite an amount may have been used in the fence.] 8 Now you see the question for you: If you find as we have said, your verdict will be for the plaintiffs; otherwise for the defendant. If you find this lumber was not furnished or sold for the credit of these buildings, then your verdict would be for the defendant. But you must find that from the evidence. The jury found the several issues of fact for the plaintiff.* Judgment being entered, the defendant took this writ, assigning as error: 1. The admission of the plaintiffs’ offer.1 2. The parts of the charge embraced in [ ] 8 8. The answer to the defendant’s first point.3 4. The answer to the defendant’s second point.4
120 Pa. 476Citizens N. Bank v. Alexander (1888)
ERROR TO THE COURT OE COMMON PLEAS OE WARREN COUNTY. No. 380 January Term 1888, Sup. Ct.; court below, No. 84 March Term 1887, C. P. On February 25, 1887, W. J. Alexander brought assumpsit against The Citizens National Bank of Warren, to recover a balance of a deposit account to his credit. At the trial on December 14, 1887, on motion of plaintiff’s attorneys the record and pleadings were amended by adding after the plaintiff’s name, wherever it occurs, the words “ Deputy Treasurer,” and by agreement of the parties, the cause was submitted to be heard by the court without a jury under the act of April 22, 1874, P. L. 109. On January 28, 1888, the court, Gunnison, P. J., 6th judicial district, holding special term, filed a finding of facts and law which was as follows: I. On February 17, 1886, the plaintiff opened an account with the defendant under the name of W. J. Alexander, deputy treasurer, to which account he deposited money from time to time until February 4, 1887. The aggregate amount so deposited was $77,866.06. Checks were drawn upon the account prior to February 21,1887, to the amount of $75,923.54, and on that day plaintiff drew a check for the balance, $1,942.52, which was duly presented to the defendant, and payment of it refused, whereupon this suit was brought. Having shown these facts, the plaintiff rested. The defendant then offered to prove that Chas. H. McAuley was the treasurer of Warren county from January 1,1884 until January 1, 1887 ; that he kept his account in the Citizens National Bank of Warren, as treasurer; that his credit balance on February 1,1886, was $6,761.13 ; that he drew thereafter for the legitimate expenses of the county, checks on that account, which created an over-draft of $1,942.52 on the 8th day of February, 1886; to be followed by evidence that so much of the money deposited by his agent, W. J. Alexander, as deputy treasurer, was applied to the extinguishment of that over-draft. "This offer was objected to by the plaintiff, the objection overruled, and the evidence admitted, the question of its relevancy being reserved. It then appeared that C. H. McAuley was elected county treasurer in the fall of 1883; was qualified and entered upon his office duties the first Monday of January, -1884; that as county treasurer he was ex-officio treasurer of the commissioners of the Rouse estate; that he gave bonds with Thomas Struthers and Myron Waters as sureties ; that Ms sureties, becoming suspicious that he was misappropriating the public money in his hands, an investigation was made by them into his administration of the office; that as a result of tMs investigation, an agreement was made February 9, 1886, by which W. J. Alexander was appointed by Mm deputy treasurer and given exclusive authority to draw checks on his bank account as treasurer, to receive all moneys to be received by the treasurer of Warren county or of the commissioners of the Rouse estate, which moneys were agreed to be deposited in the Citizens National Bank of Warren; the intention of the agreement being that the plaintiff, W. J. Alexander, should perform all the duties and exercise all the powers of the treasurer of Warren-county and of the commissioners of the Rouse estate, and have full and entire control of all moneys coming in or going out of the office of said treasurer. It further appeared that C. H. McAuley had overdrawn Ms account with the defendant in the sum of $1,942.52, and that on July 19, 1886, the defendant, without authority from the plaintiff, charged that amount to his account, and credited it to account of C. H. McAuley, treasurer, thus balancing Mc-Auley’s account. It was not shown that the plaintiff was notified of this action of the bank other than by the balancing Ms pass book, which was done at least once before February 10,1887. It also appeared that Myron Waters, one of the sureties on McAuley’s bond, was president of the Citizens National Bank of Warren, and had knowledge of the agreement by which the plaintiff was appointed deputy treasurer at the time it was entered into, and that the money deposited by plaintiff was the money of Warren county and of the commissioners of the Rouse estate. II. The only question of law involved is, whether or not the defendant had the right to charge the plaintiff with the amount of the over-draft made by C. H. McAuley, treasurer. It is not disputed that the money deposited to both was public money, belonging to Warren county and tbe commissioners of the Rouse estate. The defendant claims that it had the right to inquire into the ownership of the two funds, and that, the ownership of both being the same, it could set off the indebtedness existing on the one account against the claim of the plaintiff on the other. Plaintiff contends that the defendant is estopped by its own act in opening the account with Alexander and receiving the money deposited by him to the credit of his account, from setting up that he was not the owner of the fund so far as the bank is concerned. I am unable to distinguish this case in principle from the case of First N. Bank v. Mason, 95 Pa. 113. In that case the facts as recited in the opinion were as follows: The plaintiff below brought his suit against the First National Bank of Lock Haven to recover the amount of moneys he had deposited with the said bank. The defendants offered to prove that the money deposited in the name of James D. Mason, the plaintiff, was in fact the money of Thomas & Mason, of which firm the plaintiff was clerk; that the plaintiff had admitted at the time tbe deposits were made that the money belonged to said firm, and were placed in his name as a matter of convenience in paying small bills ; and that the said Thomas & Mason were indebted to the said bank in excess of the amount standing on its books to the credit of the plaintiff. The bank claimed to set off the indebtedness of Thomas & Mason against the claim of the plaintiff in this suit. The evidence was rejected by the court below, and forms the subject of the first assignment of error. It will be observed that the defence attempted to be set up in that case was precisely similar to that relied upon in the case under consideration. Some of the cases cited by this defendant in support of its position were referred to in the opinion in that case, in which Mr. Justice Paxson, after referring to them and showing that they referred to cases where the real owner of the money deposited, or his creditors, claimed it as against the person who deposited it, and in whose name the account stood on the books of the bank, said: “We have here a very different question. The bank, the depositary, sets up an adverse title, to defeat the suit of its own depositor. It is clearly against public policy to permit a bank that has received money from a depositor, credited Mm therewith upon, its books, and thereby entered into an implied contract to honor his check, to allege that the money deposited belonged to some one else. This may be done by an attaching creditor, or by the true owner of the fund, but the bank is estopped by its own act. A departure from this rule might lead to novel results, and embarrass commercial transactions.” The judgment of the court below was affirmed. [It must follow from this authority that the evidence offered by the defendant at the trial should have been rejected. Having been admitted under objection, it should now be disregarded. No other defence having been shown by the defendant, I am of the opinion that the plaintiff is entitled to recover, and I accordingly find for the plaintiff and against the defendant in the sum of two thousand and fifty dollars ($2,050), being the amount of the plaintiff’s claim, with interest from February 2, 1887, to January 24, 1888.]4 Defendant’s points: 1. There being no statute authorizing the appointment of a deputy county treasurer, the effect of the paper or instrument dated February 9, 1886, signed by C. H. McAuley, was only to constitute W. J. Alexander the agent of C. H. McAuley, treasurer of Warren county. Answer: TMs point is affirmed. 2. That the money deposited by W. J. Alexander in the Citizens National Bank, defendant, was the money of C. H. McAuley, treasurer of Warren county, and he so designated or “ ear marked ” it by depositing it in the name of W. J. Alexander, deputy treasurer. Answer: TMs point is refused. The money was the money of Warren county and of the commissioners of the Bouse estate. The defendant, however, could not assert its ownership in the absence of any claim to it by the true owner. It is estopped from denying that it was the money of W. J. Alexander, by receiving and placing it to the credit of his account upon its books.1 3. That said Alexander, by directing the said bank to keep the account in the name of W. J. Alexander, deputy treasurer, thus designated himself the agent of C. H. McAuley, treasurer of Warren county, and no principle of public policy will prevent the said bank from showing such fact, or in applying the funds so deposited by him to the extinguishment of said MeAuley’s overdrawn account. Answer: This point is refused.3 4. That the said Citizens National Bank had a right to apply enough of the money so deposited by said W. J. Alexander in the name of W. J. Alexander, deputy treasurer, to the account of said C. H. McAuley, treasurer, to extinguish his overdrawn account. Answer: This point is refused. 5. That the knowledge of the instrument dated February 9, 1886, obtained by M. Waters, while looking after his interests as bail of C. H. McAuley, treasurer of Warren county, is insufficient to affect the defendant with notice of the existence or contents of said instrument. Answer: This point is affirmed. In view of the conclusion that I have arrived at, however, it is of no importance whether the bank had notice of the agreement made February 9, 1886, between C. II. McAuley, Thomas Strothers and Myron Waters or not. 6. That the money placed on deposit in the said Citizens National Bank by C. H. McAuley, treasurer of Warren county, and by W. J. Alexander, his deputy or agent, constituted and was a public fund, of which the said McAuley and Alexander were simply the legal custodians, and of which the said bank was the depositary; and for any temporary deficit in said deposit account by over-draft of its custodian and depositor, subsequent deposits of the same fund would be liable to make good the shortage, and the bank would have a right to so apply it. Answer: This might be so if the subsequent deposit had been to the same account, or in the same name. In this case the subsequent deposit being to a different account and in a different name, it is not liable to make up the shortage in the first account, and the bank had no right to so apply it.3 And now, January 24, 1888, the prothonotary is directed to give notice of the decision and finding in this case, to the parties or their attorneys, and if no exceptions are filed thereto within thirty days after service of said notice, to enter judgment upon said finding for the plaintiff and against the defendant for the sum of two thousand and fifty dollars ($2,050), with interest to January 24,1888. To this finding, the defendant on February 3, 1888, filed various exceptions alleging error in refusing the second, third, fourth and sixth points, in finding' for the plaintiff, and in not directing judgment for the defendant upon the facts as found. On February 10, 1888, an additional exception was filed: 7. The court erred in not finding as a fact that the plaintiff’s pass book was balanced soon after the charge of $1,942.52 was made to his account and credited to the account of C. H. McAuley, treasurer, thus balancing McAuley’s account; and that the pass book, together with the ticket evidencing that fact, and the other vouchers, were then returned to him. Whereupon, said éxceptions were disposed of by the court as follows: The first six exceptions filed by the defendant are overruled. The seventh exception is sustained. The facts to which it refers were not as fully found in the finding of facts as the evidence warranted. Accordingly I now find as facts, that the plaintiff’s pass book was balanced soon after the charge of $1,942.52 was made to his account and credited to the account of C. H. McAuley, treasurer, thus balancing McAuley’s account; and that the pass book, together with the ticket evidencing the charge and the other vouchers, were then returned to him. As the evidence, upon which these facts are found, was, in my opinion, irrelevant, they do not affect the rights of the parties. And now, to wit, Feb. 15,1888, it is ordered that judgment be entered in accordance with the decision already filed in the above entitled case. Judgment having been entered as directed, the defendant took this writ assigning as error: 1-3. The answers to the defendant’s points.110 3 4. The part of the charge embraced in [ ] 4
120 Pa. 485Williams v. Hay (1888)
ERROR, TO THE COURT OE COMMON PLEAS OE SOMERSET COUNTY. No. 77 July Term 1887, Sup. Ct.; court below, No. 62 September Term 1885, C. P. On June 4,1885, a summons in case was issued in an action by J. M. Hay against Charlotte Williams and Thomas Williams, her husband. The declaration averred the ownership and possession of the plaintiff of two certain parcels of land in ElMick township; No. 1 containing about 33 acres and 44 perches, adjoining land of the Salisbury & Baltimore Railroad & Coal Co., being a portion of a tract of 42.42 acres; and No. 2 containing about 241 acres, adjoining land of said company, parcel No. 1, and others; and charged that the said defendants, the said Charlotte acting of her own free will and not by compulsion of her husband, mined and removed the coal underlying specified portions of parcel No. 1, and specified portions of parcel No. 2, and that “said defendants wrongfully removed said coal, the natural support of said surface soil and so carelessly, negligently and unskilfully mined and removed the same, without leaving proper and sufficient pillars, ribs and supports, and without putting up sufficient supports, that the surface of the portion last above described caved in and sunk in deep hollows and holes, thereby greatly damaging the surface soil — in fact wholly destroying its usefulness and making it impossible to use, cultivate and enjoy the same, and by reason whereof said plaintiff sustained damages.....” To this declaration the defendants pleaded: (1) not guilty. (2) “And for a further plea in this behalf the defendants say that before the bringing of this present suit the said plaintiff impleaded the said defendants in the said court to No. 47, August Term 1883, in trespass on the case, in which said suit the said plaintiff recovered for the very same identical grievanees in this said declaration in this present suit mentioned, as by the records and proceedings thereof remaining in the said court will fully appear, and this the said defendants are ready to verify.” The plaintiff replied to this second plea, denying that he should be estopped, etc., because that he did not recover in the action to No. 47 August Term 1883, for the same grievances in the declaration in this present suit mentioned, but for injuries done by one John Williams impleaded in that cause with the defendants herein on other portions of plaintiff’s land, and of this, etc. At the trial on March 4, 1886, the plaintiff showed title to the surface of the tract of land containing 241 acres by deed from W. J. Baer, dated February 11,1867,'which had therein the following: Reserving, however, to the use of the said W. J. Baer, his heirs and assigns forever, the full and perfect right and privilege of searching for, mining, procuring and taking away by such ways and means as to the said W. J. Baer, his heirs and assigns, may seem fit and practicable, all the coal, iron ore, metals, limestone, fire clay, and all other mineral substances whatsoever, whether solid or liquid, lying and being upon, under, and contained within the surface of the land herein-before mentioned and described, (exclusive of the three (3) acres around the buildings,) and the necessary right of way for the full exercise of privileges as aforesaid; Provided, however, that the said W. J. Baer, his heirs and assigns, in mining and removing the coals, iron ore and minerals aforesaid shall do as little damage to the surface as possible: And title to the surface of the other tract, containing 42.42 acres, by deed from the Salisbury & Balt. R. & C. Co., dated June 17, 1872, which had therein the following: The party of the first part reserves all the coal, iron ore, fire clay, and all the other minerals and mineral substances, both liquid and solid, under the surface of said land, except the limestone, which are hereby conveyed with the surface soil to the said party of the second part. The plaintiff then put in evidence a mining lease, embracing the parcel containing 42.42 acres, from the Salisbury & Balt. R. & C. Co. to Thomas Williams, in trust for Charlotte Williams, and John Williams, dated May 22,1879, and proved the mining of coal by the defendant Thomas Williams, (John Williams having died about two years before,) out of the tract of 42.42 acres and out of the tract of 241 acres as well, resulting in the subsidence of the surface at different points in both parcels, and rested. The defendants then offered in evidence the record of the trial of a former cause, J. M. Hay v. John Williams, Thomas Williams and Charlotte Williams, his wife, to No. 47 August Term 1888, which was admitted, the question raised to be determined subsequently, on a point. The court, Babb, P. J., charged the jury and answered the points presented as follows: This is an action on the case brought by J. M. Hay against these defendants, to recover damages for so mining and taking away the coal underlying his land as to cause the surface to subside and fall in, thereby causing him injury and damage. There is no pretence in this case that there was what would be called vindictiveness in what was done by the defendants. [The damage resulted from the taking away of coal which the defendants had a right to take away, ] 8 and, if the evidence is believed, from not providing sufficient supports to support the surface. As no vindictiveness has been shown, the damages to be recovered here must be what are called actual damages, not exemplary or punitive damages, which are sometimes given to punish a man for a trespass. In cases of this kind, where one man owns the surface and another owns the coal, each has a right to the enjoyment of his property The one owning the surface has a right to occupy, use and enjoy it without any interference by the miner below, who must mine and bring his coal or other mineral to the surface without damage to the land. Of course he must support all the mine so that the surface is not interfered with. The man who owns the surface has a right to it, and the man who owns the coal is under obligations to take it out in such a way as to afford sufficient support to the surface. The question involved in this case, after we shall answer the- points, is one of fact, that is to say, what damages were sustained by the plaintiff in this case ? That is a question for you: The other questions in the ease are questions of law for the court. What was the amount of damages that were sustained here? One side brings witnesses and the other side brings none. Each of these witnesses fixes damages which this plaintiff has sustained and assigns his reasons for fixing them as he does. There are two places where the land has been injured, one of which contains 40 rods, or one fourth of an acre, and the other 30 rods. Some of the witnesses give a reason for estimating these damages above the average rate per acre which the farm was worth, and among them, Mr. Keim, who says the whole farm was probably worth #125 an acre. You will look at all this evidence; and if, after hearing the charge, you come to the conclusion that damages are to be allowed, you will measure them in accordance with the charge which we shall give, confining yourselves, of course, to actual damages. Now, in order that you may know the law that governs the case, we will answer the points, beginning with those of the plaintiff. 1. That if the jury shall find, from the evidence, that J. M. Hay is the owner of the surface and that the defendants or their employees mined, took and carried away the coal underlyrifig the said surface, and that by reason of their mining and removing the coal from under the said surface, the surface caved, sunk or fell in, they are responsible for all damages caused thereby to the owner of the surface, without regard to the manner of mining, whether done skilfully or negligently. The owner of the surface is entitled to actual, absolute support of his land at the hands of the operator of the mines. 2. That if the jury shall find that the surface of a portion of plaintiff’s land sunk, caved and fell in by reason of the removal of the coal from beneath it by the defendants, by not leaving sufficient, actual support, or not putting up sufficient posts and supports, the plaintiff is entitled to recover such damages as he has sustained by reason of the surface so destroyed, the additional fencing made necessary thereby, the symmetry of the fields as affected thereby, and as it affects the value of the balance of the tract of which the damaged surface is a part. Answer: These two points are substantially the points that were raised before. They were answered together then, and we answer them together now. Our answer is as follows: Where one grants the surface of land and reserves the coal and other minerals, as in the case on hand — a part of this was probably sold in that way, but in one deed at least the surface was bought and not the coal, but the principle is the same — in such a case an implied right of support to the surface passes with the grant to the grantee ; neither the grantor nor his lessee may mine or remove the coal or other minerals without leaving actual, absolute support to the surface, unless, by some • apt words in the deed, the implied right to support is excepted from the grant. In that way the man owning this coal land could have sold it and granted the right to take the coal all out, so that the party to whom he sold the surface would not have received any compensation at all for the subsidence of the surface ; but that would depend on the manner in which the deed is drawn. In this case, as the deed is drawn, that rule does not apply. In the case on trial there is no such exception in the deed, and the right to surface support passed with the deed to Mr. Hay; and the owner of the coal, or any one holding under him, must, therefore, in mining, leave sufficient support to sustain the surface. The surface belongs to the plaintiff, Hay; the coal belongs to the defendants or those under whom they are mining. They may take all the coal, if they can do so without causing a subsidence of the surface; but they must support the surface by actual, absolute support by leaving a sufficiency of ribs and pillars to hold it up, or by the coal itself; and if they take it all out, they must provide actual and absolute support in some other way. The failure to sufficiently support the surface is negligence and renders the owners and workers of the mine liable for damages to the extent of the injuries sustained by the owner of the surface. The owner of a mine has a right to mine his coal in any ordinary manner, so long as he does no injury more than the injury which necessarily arises from the mere removal of the coal, independent of the caving in of the surface; but in this case the skilfulness of the mining is not involved. The case turns upon the question whether the surface was sufficiently supported by actual support which holds up the surface and keeps it from subsiding. If the jury, from the evidence, find that the surface has not been kept up by actual and sufficient support, then damages follow. It is your business then to ascertain from this evidence what is reasonably and properly the amount of damages for the injury sustained.1 We have been asked to instruct you on some points, on the part of the defendants. 1. This being an action of case against Charlotte Williams, a married woman, under the pleadings and the evidence in the case, the verdict must be for the defendants. • Answer: This, so far as you are concerned, we refuse.8 2. The plaintiff having brought suit to No. 47 August Term 1883, against the defendants for damages done to a portion of the tract conveyed by the S. & B. R. & Coal Co. to the plaintiff by deed dated the 17th day of June, 1872, and recovered damages thereon for removing coal under a portion of said tract, and an inspection of the declaration in that case as also the declaration in this action disclosing the fact that it cannot be ascertained whether the damages now claimed are for the same injury received in the former suit, therefore the verdict must be for the defendants. Answer: Refused.3 3. There being no evidence that any coal was mined under land of plaintiff since the commencement of the action brought to No. 47 August Term 1883, therefore the verdict must be for the defendants. Answer: Refused.4 4. Under the pleadings and all the evidence in the case, the verdict must be for the defendants. Answer: Refused.5 5. That inasmuch as the defendants had no right to enter upon the tract containing 241 acres, if they did enter upon said tract and mined coal, whereby the surface was let down as alleged in the plaintiff’s narr, then they were trespassers, and they cannot be held for any damage done to said tract in this action, it being an action on the case. Answer: These points we will attend to afterwards on a motion, so that so far as you are concerned, they are refused.6 That is all we have to say in this case, except to say that the measure of damages, as we have already indicated in what we have said, will be, first, the destruction or diminished value of the land itself, by reason of the subsidence or caving in of the surface, resulting from the removal of the coal and the failure. to support the surface; then the value of the additional fencing that may be required to enable the plaintiff to use the remainder of his land and also such actual injury to the remainder of his land as has resulted directly, not from the mining of the coal, but from the falling of the surface. The depth to which the surface has fallen is not material: you will look at the injury; and if the land is entirely worthless, it matters not whether it subsided ten feet or one hundred. You will look at the injury that has been sustained by the caving in, or subsiding, of the surface, so as to make it of no use to the plaintiff, or of less use than it was before; and, from all the evidence in the case, you will ascertain the amount of damages he has sustained. The jury returned a verdict in favor of the plaintiff for $250. A motion for a new trial was entertained. On December 21, 1886, pending this motion, the plaintiff’s attorney moved to amend the record by striking out the name of Charlotte Williams before the words “ and Thomas Williams,” and after the name of Thomas Williams the words “her husband,” and the name of Charlotte Williams wherever it appears in the pleadings. On January 25, 1887, the court filed an order overruling the motion for a new trial, making the rule to amend absolute, and permitting the plaintiff to take judgment as though the amendment had been made and allowed before verdict, the costs of the term at which the verdict was rendered to be paid by the plaintiff.7 Judgment having been entered upon the verdict the defendant, Thomas Williams, took this writ assigning as error: 1. The answer to plaintiff’s points.1 2-6. The answers to the defendants’ points.810 6 7. The allowance of the plaintiff’s motion to amend.7 8. The part of the charge embraced in [ ] 8
120 Pa. 497In re Rule on Kennedy (1888)
ERROR. TO THE COURT OF COMMON FLEAS OF FAYETTE COUNTY. No. 270 January Term 1888, Sup. Cfc.; court below, No. 191 September Term 1882, C. P. On September 25,1882, to tbe number and term of tbe court below referred to, there was entered a judgment of revival of judgment to No. 259 September Term 1877, for tbe sum oi $1,000, in favor of Elizabeth A. Walker (formerly Murtland),' and Joseph Walker, her husband, against Asa Huntley. On September 3, 1872, Abner L. Lynn presented his petition representing: That at the above number and term, and on the above judgment, sixty dollars a year is payable every seventh of August, of each year, to your petitioner as guardian of Wm. H. Murtland, until his arrival at age, when the principal sum will be paid. That Robert P. Kennedy, of this bar, without any authority from your petitioner, entered his name as attorney, after the revival of the judgment by my attorney, G. W. K. Minor, and collected the interest, without over having been employed by your petitioner to do so, and on the 7th of last month, collected sixty dollars interest in this way and refused to pay it over. Your petitioner has frequently requested him to do so, and has had his attorney to demand it, and he still persists in not paying it over. Your petitioner prays your honor to grant a rule on said Kennedy to show cause why he should not pay over said money forthwith to your petitioner, or his attorney, and why his name should not be erased from the case mentioned, and to make such further order in the premises as would be right and proper, and he will ever pray, etc. A rule having been granted as prayed for, on November 30, 1887, Mr. Kennedy filed the following answer: R. P. Kennedy being duly sworn, in answer to the petition of Abner L. Lynn in the above cause, deposes and says : That Lynn asked affiant to revive the judgment at No. 259 September Term 1877, when W. H. Playford, Esq., was plaintiff’s attorney,, and that affiant declined to do so, because Lynn would not advance the prothonotary’s fee for such revival, but said to affiant he would revive it himself, as he did to 191 September Term, 1882, a few days later. This revival by Lynn’s own praecipe was contested, and Lynn sought the aid of his former attorney, Mr. Playford, for that contest, which aid the latter declined to give him, being dissatisfied about Lynn’s course in the matter. G. W. K. Minor, Esq., for Lynn, then sustained Lynn’s right to file a prsecipe and revive the above judgment, and when this was all through with, Lynn came to Mr. Playford’s office one day and tried to conciliate him about the matter, but Mr. Playford refused to talk about it and walked out, and then Lynn said to affiant who was present: “ I’ve known Playford since he was a boy and want no hard feelings about this thing; I’ve settled with Minor for all he has done, and now want Playford and you to attend to this judgment for me.” Affiant afterwards told Mr. Playford Lynn’s above remark, to which he replied that affiant could attend to the case, but that he would not. Affiant then entered his name as plaintiff’s attorney, and as such received $60.00 per year, for five successive years, beginning 1883, as interest on the above judgment. These payments were made to affiant in August of each year, either by S. N. Springer or a Mr. Francis, for defendant, and during the same month, each year, except in 1887, were paid over by affiant to Lynn, in full. Affiant made sucli payments to Lynn promptly, and on demand, except in 1883, when affiant declined to pay Lynn on bis first demand, because of Lynn’s being so intoxicated as to be unable in affiant’s judgment, to properly receive a check, and get money thereon. Affiant paid him a few days later that year, and eaeh year, save in 1887, during the same month that affiant received said $60.00 interest. Lynn never told affiant to pay over any amount to the prothonotary or G. W. K. Minor, Esq., until affiant demanded a fee out of the last $60.00 received for services in collecting, receipting for and paying over to Lynn $240.00, and for collecting and receipting for $60.00 additional, of which no part has as yet been paid over to Lynn; though affiant twice offered to pay Lynn $50.00 of the unpaid $60.00, by check on the People’s Bank of Uniontown, as affiant had paid Lynn $60.00 in that way each time before; and on Sept. 9, 1887, before the rule in this case issued, at the sheriff’s office, in Uniontown, affiant made a good and lawful tender of $50.00 to Lynn, by counting out that amount of money before Lynn and there tendering it to him. Lynn refused said amount tendered, as he had previously refused a check for that amount, each time saying, “ I’ll have all or nothing.” Affiant further says that Lynn has consulted with affiant about getting for Lynn the $1,000 principal upon which the $60.00 is paid annually as interest, and in 1886, affiant was promised $20 by Lynn if he would accomplish this. In all these conversations prior to Aug. 1887, and in 1883-’84-’85 and ’86 when affiant gave Lynn checks for $60.00 eaeh year, Lynn conferred with affiant as his attorney, spoke of no one else as such, and only as attorney for Lynn did affiant ever act in the above matter. Affiant further says that Lynn consulted him about other matters, and within the last year left a judgment note with affiant to collect against one O. P. Bra-shear, which note was not entered because Lynn did not advance $1.75 for the prothonotary, nor pay affiant any fee to have the same done. Affiant now asks the court to make an order allowing affiant 5 per centum commission on the $800 collected by him as above, said commission of $15 to be deducted from the $60.00 now in affiant’s hands, with leave to affiant to pay the $45.00 balance into court, from which balance all costs on this rule shall be paid. Testimony having been taken and filed, the court, Ewing, J., without opinion in writing, on December 28, 1887, made the rule absolute and ordered the respondent forthwith to pay over to the petitioner or his attorney the said sum of $60 and that his name be erased as one of the attorneys for the plaintiffs. Thereupon the respondent took this writ assigning the said order as error.
120 Pa. 504Niagara Fire Ins. v. Miller (1888)
ERROR TO THE COURT OE COMMON PLEAS OE BEDEORD COUNTY. No. 432 January Term 1888, Sup. Ct.; court below, No. 83 April Term 1887, C. P. On February 28, 1887, an action was brought by Frank Miller against The Niagara Fire Insurance Co., of New York, to recover upon a policy of insurance dated January 21, 1886, for one year, for $2,100 upon a dwelling and $400 upon the personal property therein contained. The narr was in assumpsit. The plea was non assumpsit, payment with leave, etc., with the following notice of special matter to be offered in evidence by the defendant on the trial of the ease : 8. That plaintiff did not comply with the first clause of his policy under the title, “Warranty of the Insured.” He omitted to state many things material to the risk. He represented that the judgments and liens against him did not exceed $800, when in truth and in fact they exceeded 01,500. His personal property was seized and taken in execution and in the custody of the sheriff. Had these facts been made known to defendant no policy would have issued; other liens were entered against plaintiff, and he did not make this known to defendant as he was required to do by his policy. 4. Plaintiff did not comply with any of the terms, provisions, and conditions of his policy under the head and title of “ Proceedings in Case of Loss.” No statement was made to the New York office. No appraisement completed before suit commenced. No suit commenced within the time specified in the policy of insurance. 5. Defendant will insist that plaintiff shall show full compliance with all the stipulations in his policy under this head, and generally that ho shall be held to strict proof of the performance of all of his covenants, agreements, and stipulations as stated and set forth in his policy of insurance. At the trial on March 27, 1888, the policy was found to contain the following provisions: W AUK ANT Y OP THE INSTJEED. The assured by the acceptance of this policy hereby warrants that any application, survey, plan, statement, or description connected with procuring this insurance, or contained in or referred to in this policy, is true and shall be a part of this policy; that the assured has not overvalued the property herein described nor omitted to state to this company information material to risk. And this company shall not be bound under this policy by any act or statement made to us by any agent or other person which is not contained in this policy or in any written paper above mentioned. PROCEEDINGS IN CASE OE LOSS. If the loss sustained be upon a building, fixtures, or machinery, the assured shall, if required, furnish duly verified plans and specifications of such property destroyed or damaged. It is hereby expressly provided that no suit or action against this company for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or equity until after full compliance by the assured with all the foregoing requirements, nor unless such suit or action shall be commenced within twelve months next after the fire shall have occurred. The facts appearing from the evidence are fully indicated in the charge to the jury, Baer, P. J.: The plaintiff in this case, on the 21st of January, 1886, procured from the defendant company, a policy of insurance on his house at Hyndman, and personal goods. The policy promises to pay, in ease of loss, such an amount, not exceeding the sum insured, and not exceeding what it would cost to repair or replace the destroyed property, estimated at a cash value and deducting a suitable amount for depreciation. The house was insured at $2,100, and the household goods at $400. This policy was sent by mail the next day or soon after. The premium was paid at a later day, but was accepted by the company, and so it is the same as if paid at once. The insured house burned down on March 2, 1886, and the loss was a total loss. The personal property also burned, but not all of it. The insurance on the personal property was $400; and, though the goods burned were alleged to be worth $490, still $400 is all that can be obtained if the plaintiff is entitled under the evidence to recover. The terms of the contract require certain notice. Preliminary notice was given, and proofs of loss were made and sent. It seems the company desired a more formal and specific statement which, it seems, was also made. The plaintiff having established by proof the insurance, and having made proof of loss by fire of the house and the personal property, and having given due notice of the fire with proofs of loss, is entitled to recover the damages sustained by the fire according to the terms of the policy, on proof of the cash value of the property destroyed, less a suitable amount allowed for depreciation; unless you find that the defendant company has by evidence in the case shown that for some reason the plaintiff is not entitled to recover. The defence set up is: 1. That the plaintiff, at the time of applying for insurance, omitted to state matters that were material to the risk, saying that judgments and liens against him did not exceed $600, whereas they exceeded $1,500. 2. That the plaintiff did not make known the fact that the sheriff had a levy on his household goods at the time. 8. That the plaintiff has not complied with the terms and conditions of his policy under the head of “Proceedings in Case of Loss.” They called Mr. Moore as witness for the defendant company, who is also the agent who placed the risk, and he says he inquired of Miller, what, if any, liens existed, and that Miller said $500 or $600, and that he said nothing about the sheriff’s having a levy on his personal goods. The manager took an affidavit from the plaintiff before Squire Burkett, and in that Mr. Miller replies to interrogatories that were propounded by the manager, that he told Moore at the time that the judgments against him were $500 or $600, and that he had no recollection whether he told him the sheriff had a levy on his goods. The records produced in evidence show that the sheriff had a levy on his personal property, but tbe proof shows that it was still in the actual possession of Miller; and the records also show that the judgments then against him were about $1,500. [Assuming for the purpose of the statement that, as the defendant claims by the terms of the warranty, this state of facts created a warranty, and that the breach of it made the pplicy void according to its terms, we still have to say to you that if the defendant, having knowledge of the breach, had time to make it void and did not do so, it is not void; for the law is that it is voidable at the will and pleasure of the company, and having not done so, the policy is valid. Whether or not such opportunity was waived is a question of fact for the jury.]3 But, before answering the question of waiver, you must first find whether there was a breach. First, what were the facts ? Was there, in point of fact, a representation of some facts and a concealment of others that were material to the risk; that Moore claims would be material to the risk? Defendant argued that Mr. Moore is corroborated by Mr.Tenney, the manager, by Burkett, and by the affidavit. Is this so ? The jury will remember that Moore said no one else was present. Miller also says the same. What Moore says, Miller say's he said, at the time of the taking of the insurance. It is the affidavit of Miller that is called on as corroboration. Burkett merely swore him and took it down. If a court house full of people would say they saw and heard that, it would not make it stronger: it would still be the oath of Miller. Moore’s statement in this case, the plaintiff undertakes to answer: — First, he swears that he told Moore that he knew of |500 or 1600 of judgments, but that there might be more and he not know; that Moore should inquire of Prothonotary Emons; that he told him his personal property was levied on; that his object was to get insurance to procure a loan by mortgage to pay his debts. Having his attention called to the affidavit, Miller says that he was in great trouble; that it was but a few days after the fire, and that he hardly knew what he was about. The affidavit was dated on the 5th of March, and the fire was on the 2d, yet in that affidavit the fire was stated to have been on the 1st. He says that he answered questions propounded by the manager, and that what he said about judgments was true; but that he was not asked if he told Moore anything more; .that if he had been asked he would have told it. From this plaintiff’s counsel argue that there is no inconsistency between Miller’s affidavit and his oath on the stand. It is alleged that there was no cross-examination, you have been in court long enough to know how that is done, and only the answers of Miller written down, and, as there was no cross-examination Moore is not thereby corroborated. We say to you that this is a question of fact for you to decide between these witnesses. Tenney says Miller was cool and collected; the ’Squire says he took the testimony down, and Miller also says the testimony was written by the ’Squire. You must determine what were the facts at the time of taking this testimony. If the facts were as Mr. Moore testified, then there was a warranty and breach; but if you find the facts as Miller testified, then there was no warranty and breach, and this would be the end of the case. If there was a breach of warranty, than we go further. We inquire then whether or not the defendant waived a right by allowing the matter to run on from time to time. A waiver need not be in writing. The breach is alleged to arise from the alleged statement of Miller that the liens were $500 or $600, whereas they were $1,500, and in not stating that his goods were under levy. As evidence on which the plaintiff asks the jury to find a waiver of this breach, he alleges : — ■ First, that due notice of the fire was given, and prior to March 81st, a statement, or proof of loss, including statement of liens, was duly mailed to the company and received. In reply to which, the company wrote: “We are in receipt of yours, inclosing statement of loss, etc., which we have forwarded to our managers, Messrs. Brown & Tenney, Philadelphia, who have charge of all losses in Pennsylvania.” That on April 28, 1886, in reply to a letter of April 22d, Mr. John Tenney, a manager from the office of Philadelphia, writes: “We return herewith the alleged proof of loss of Mr. Frank Miller at hand with your favor of 30th ult., and shall be glad if you will have Mr. Miller furnish us with entirely new proof on blank inclosed, made out in full compliance with the terms and conditions of our policy.” That the proof of loss as hereby suggested or requested was in due time made out and forwarded. That the plaintiff having waited until June 26th, caused his attorney to write on the subject; and to the inquiry, Mr. Brown, a manager of the Philadelphia department, writes on the 28th: “ The matter of the claim of Frank Miller is in the hands of our associate manager, Mr. Tenney, who is out of town to-day, and will be absent during this week. It shall be referred to him for immediate action upon his return.” That on the 8th of July, 1886, John Tenney, manager, writes in reply to the letter of June 26th, and says substantially : “We are looking into the matter of Frank Miller’s loss, and will communicate with you another time. We desire you in the meantime to furnish us with verified plans and specifications of the building destroyed, to be attached and to become a part of the proof of loss furnished with your favor of the 14th inst.” That the plans and specifications were made by Mr. Horn, an architect and builder, and sent on December 16, 1886, mailed as previous letters had been. On January 20, 1887, a letter was addressed to Mr. Brown, and asked: “ Will you inform me if the company has any objections, and if any, what they are, to the payment of the loss ? ” It also asked that appraisers be appointed. There was no reply to this. Appraisers were appointed; one by the plaintiff and one by the company. The appraisers met and appraised the loss of personal property; then they entered upon the examination of the loss by the burning of the house. They progressed to a certain extent when the appraiser chosen by the company alleged that he could no longer remain, and left, and the appraisement was not completed. That up to this time, although nearly a year had transpired, and though the time limited by the policy within which to bring suit was one year from the date of the fire, no objection was stated or made that in the least informed the plaintiff on what grounds, if any, the defendant objected to payment. That he was led on by letters suggesting more formal proofs of loss and specifications, from time to time; and when letters were received, he was not informed of any defect, though he asked to be informed, what, if any, objections there were. That before the formal proof of loss, and long before the request for appraisers, the company, if the evidence is believed, knew the extent of the incumbrance that existed at the time of the insurance, and knew that the personal property was then under levy, but still in plaintiff’s possession at the time of the insurance, and knew what it is alleged Miller said concerning the liens and levy. That it never asserted an intention to resist payment because of an alleged breach of warranty arising from misstatement or concealment and that the plaintiff was led on to go to the expense incident to an appraisement and to making more formal proofs of loss. This line and course of conduct, the plaintiff alleges, estops the defendant now from interposing or setting up a breach of warranty arising from any falso statement as to amount of liens or concealment of fact of levy on personal goods. [If you so find the facts, then though there be a condition in the policy that makes the policy void by such breach of warranty, yet the policy was not absolutely void, but it was only voidable if the company, after having information of the facts that create the breach of warranty, in a reasonable time, and without misleading the party insured into unnecessary expense, chose to make it void and so informed the assured.] 3 But if they did not do so, the jury, if they find the facts as alleged, may find that the breach of warranty was waived. And, if they find it was waived, then, unless some other ground of defence is established, the plaintiff would be entitled to the verdict. Whether the defence set up, that the provisions of the policy under the head of “ Proceedings in Case of Loss ” were not complied with, has been sustained, is a question of fact for the jury on the evidence. Now we are asked to charge you on certain points. Wo read the points of the plaintiff first: 1. That under all the evidence in this case the verdict must be for the plaintiff. Answer: We decline to affirm that point. 2. If the jury believe that the defendant, three days after the fire, sent the manager of the company to plaintiff’s premises, who inquired as to the full circumstances attending the taking of the insurance, and with this information and full knowledge of all the statements now claimed by defendant to have been made by plaintiff at procuring insurance, and with the further information of the actual amount of liens and that the personal property had been levied on by the sheriff, the company called on the plaintiff for proofs of loss which were forwarded and then returned by the defendant for correction, and corrected proofs on the printed blank sent for that purpose, by the company, were forwarded by plaintiff, and after that defendant called for plans and specifications, which he at great expense and. trouble procured, and during all this time made no objection to the payment of this loss on any grounds, and wrote plaintiff’s attorney the letters in evidence,3 the jury may find from the facts and circumstances that the company waived the forfeiture of the policy on the grounds of any misstatement as to liens or execution on personal property and incumbrances, or any omission to state fully in relation thereto ; and then the verdict should be for plaintiff. Answer: That point is affirmed.1 3. If the jury believe that Miller, in procuring the insurance made the statements and representations in the manner testified to by the plaintiff, then he is entitled to recover under the contract of insurance and the pleadings in the case, if he made no concealments and was guilty of no fraud or bad faith. Answer: This is affirmed.4 The jury returned a verdict in favor of the plaintiff for $2,751.25; and judgment being entered thereon, the defendant took this writ assigning as error : 1. The answer to the plaintiff’s second point.1 2. The part of the charge embraced in [ ] s 3. The part of the charge embraced in [ ] 3 4. The answer to the plaintiff’s point.4
120 Pa. 518Commonwealth v. McLaughlin (1888)
PETITION FOR A MANDAMUS TO THE COURT OF QUARTER SESSIONS OF MONTGOMERY COUNTY. No. January Term 1888, Sup. Ct.; court below, No. 116 March Term, 1887, Q. S.
120 Pa. 523Appeal of Kerns (1888)
FROM THE DECREE OF THE ORPHANS’ COURT OF SCHUYLKILL COUNTY. No. 38 July Term 1886, Sup. Ct. On March 2, 1885, Michael Kerns and Ellen, his wife, in right of said wife, presented a petition to the Orphans’ Court, praying that a decree confirming the report of appraisers of the widow’s exemption, filed in the estate of John Niland, deceased, should be reconsidered, vacated and set aside, and a rule was granted accordingly. At the hearing on Juno 29, 1885, it appeared that John Niland died on April 7, 1870, leaving to .survive him a widow, hut no issue, and seised of two adjoining lots of ground with dwelling houses thereon, in Mahanoy city. He had left a will in which he bequeathed and devised all his personal property ' and one of the lots with the dwelling thereon to his wife Hannah Niland, “ during the whole term of her natural life or so long as she remains my widow,” and upon her death or remarriage, whichever first might happen, he devised said house and lot to his sister Margaret Hoben; the other house and lot with the dwelling thereon was devised absolutely to his sister Ellen Kerns. His wife was appointed the executrix of the will. On April 15, 1880, the widow filed a caveat against the admission of said will to probate, but on November 20th she withdrew her opposition and allowed the will to be admitted to probate. On January 8, 1882, she was married to John Murphy, and on March 4th, following, she took out letters testamentary as the executrix of the said will. • After taking out letters, Mrs. Niland, then Mrs. Murphy, continued to collect the rents of the house devised to Mrs. Kerns, and on September 10,1883, Mrs. Kerns began an action of ejectment against her to recover possession of the premises. On September 24, 1883, Mrs. Murphy caused to be filed in the Orphans’’ Court a .paper containing an election to retain the thereinafter personal and real property of the deceased, to the value of $300, and requesting that the property designated be appraised and set apart to her as the widow of said deceased according to law. This election, dated September 8, 1883, was followed by a sworn appraisement of the same date by three appraisers, of personal property to the amount of $27, and of the two lots of ground with the dwellings thereon, at $250. No exceptions being filed to said appraisement, on November 12, 1883, áfter due notice given by advertisement, with other like appraisements, it was confirmed. Afterwards, on December 17, 1883, on petition of Mrs. Murphy, over the ñame of Hannah Niland, showing said proceedings, the court ordered and decreed that the appraisement and the appropriation of said real estate described therein “ be and remain firm and stable to the said Hannah Niland, her heirs and assigns forever,” etc. The petition filed on March 2,1885, averred that Mrs. Kerns, the petitioner, never had any knowledge of said appraisement, or that it included the real estate devised to her, until February 21, 1885; and further: “ Deponent has been informed and believes that instead of the personal estate of decedent amounting to twenty-seven dollars, that in addition to all furniture and other personalty, there has come into the hands of said widow and executrix upwards of six hundred dollars in cash, and that the said real estate appraised at the sum of two hundred and fifty dollars is undoubtedly of the value of at least one thousand dollars. Deponent therefore saith that said appraisement, of which she never had any knowledge until within 48 hours, is fraudulent as to her and is also a fraud upon the court which confirmed the same.” The court, without opinion filed, discharged the rule granted, and thereupon the petitioners took this appeal assigning as error the confirmation of the report of the appraisers and the refusal to vacate said decree and proceedings and declare them null and void.
120 Pa. 532Ely v. Stanton (1888)
1. An action brought before a justice by a parent for “work and labor done ” by a minor son, the record not designating cither the kind of labor or the character of the defendant as of one of the enumerated classes of employers, is not within the purview of the Wages Act of April 9,1872, P. L. 47. 2. Wherefore, as the transcript of the justice’s judgment disclosed no facts sufficient to bring the cause of action within the statute, the formalities as to recognizance and affidavit, required by § 5 of said act, were inapplicable. 3. The recognizance and affidavit in this case (see Statement of Facts, infra,) were quite in conformity with the provisions of § 1, act of April 20,1876, P. L. 43, and nothing was shown which invalidated the appeal taken.
120 Pa. 537Buffalo, N. Y. & P. R. Co. v. Commonwealth (1888)
No. 38 January Term 1888, Sup. Ct.; court below, No. 68 September Term 1886, C. P. On August 9, 1886, tbo petition of Tbe Commonwealth of Pennsylvania, ex relatione Lewis C. Cassidy, attorney… Held: the relator moved the court for permission to amend his relation so as to make said receiver a party of record. 4.
120 Pa. 552McCullough v. Boyd (1888)
ERROR TO THE COURT OE COMMON PLEAS OE EAYETTE COUNTY. No. 10 July Term 1888, Sup. Ct.; court below, No. 191 September Term 1887, C. P. On July 20, 1887, a summons in debt was issued in an action by Dr. John Boyd against Nicholas McCullough. With the praecipe, the plaintiff filed an affidavit of claim which, with a copy of the articles thereto attached, was as follows: Dr. John Boyd, the plaintiff in this case, being duly sworn, says : There is due and owing to the plaintiff from Nicholas McCullough, the defendant in this suit the following sums of money: One dollar with interest from June 10, 1878 . . . $ 1.00 Six hundred dollars with interest from June 23,1873. 600.00 Fifty dollars with interest from July 14, 1873 . . 50.00 One hundred and fifteen dollars with interest from March 28, 1874 ........... 115.00 Forty-five dollars with interest from April 13, 1874. 45.00 That said sums of money were paid to the defendant by said Dr. John Boyd, the plaintiff, in pursuance of the terms of a certain article of agreement between them for the sale and transfer of certain real estate, therein described, by the defendant to the plaintiff, a copy of which article of agreement is hereto attached and made a part of this affidavit of claim. That said defendant failed, refused and neglected, on his part, to comply with the terms of said agreement, in consequence of which, the whole of said sums of money, with interest as aforesaid, is due and unpaid the plaintiff by the defendant. COPY OS' ARTICLES ATTACHED. Articles of agreement made and concluded this tenth day of June, A. d., 1873, between Nicholas McCullough and Dr. John Boyd,.....The said Nicholas McCullough agrees to sell to said Dr. John Boyd all that piece or tract of land situate in Wharton township, county of Fayette and state of Penna., bounded and described as follows, viz.:.....containing 256 acres, more or less, for the price or sum of thirteen hundred and fifty dollars, and also agrees to give the said Dr. John Boyd possession of said premises when half the amount of the purchase money is paid. Interest to accrue on the unpaid balance when possession is given, reserving the crops now in the ground. On the full payment of the purchase money with interest that may accrue, to make a good, lawful warrantee deed to the said Dr. John Boyd. And the said Dr. John Boyd agrees to pay the said Nicholas McCullough as follows, viz.: One hundred dollars from present date in thirty days; and on or before the first day of January, 1874, six hundred dollars; on April first, .1874, two hundred dollars; on July first, 1874, two hundred dollars; and on September 1, 1874, two hundred and fifty dollars. Witness our hands and seals this tenth day of June, A. d., 1873. Attest. Nicholas McCullough, [seal.] T. B SoiINATTERLY. JOHN BOYD, [SEAL.] June 10, 1873, Rec’d on the within, $1.00. Nicholas McCullough. June 23, 1873, Rec’d on the within articles, $600. Nicholas McCullough. July 14, 1878, Rec’d on the within article, $50.00. Nicholas McCullough. March 28,1874, Received on the within article, $115.00. Nath’l Ewing, Atty. for N. McCullough. April 13, 1874, Rec’d on the within article, $45.00. Nath’l Ewing, Atty. for McC. On July 29,1887, the defendant filed the following affidavit of defence: Nicholas McCullough, the defendant in this case, being duly sworn according to law, says that he has a just, legal, equitable and complete defence to the whole of the plaintiff’s claim in this case. That it is true as set forth in the affidavit of claim that several sums of money therein mentioned were paid by the plaintiff as therein stated, but denies that he, the defendant, failed, refused and neglected to comply with the terms of said agreement in said affidavit of claim referred to. That on the contrary he was always ready, willing and able to comply with the terms of said agreement, until the plaintiff, by his failure and refusal to perform his covenants in said agreement, made it impossible for the defendant to perform his covenants; and by such breach of covenant on the part of the plaintiff relieved the defendant from the performance of his. That if the plaintiff had performed his covenants in said agreement, defendant was able and would have performed his covenants. That the plaintiff, in pursuance of said agreement, took possession of the real estate in said agreement described and sold, and held the same and enjoyed the use of said land for a long time, to wit, three years, for no other consideration than the several sums paid on said agreement. And further says not. On August 24, 1887, the plaintiff entered a rule on defendant to show cause why judgment should not be entered against him for want of a sufficient affidavit of defence; specifications filed. On October 20, 1887, before argument, the defendant filed a supplemental affidavit of defence, as follows: Before me personally came Nicholas McCullough, defendant, who being duly sworn according to law, says, by way of specifying more particularly the nature and character of his defence to this action, that the plaintiff, John Boyd, failed to perform the following covenants in the agreement made a part of the affidavit of claim in this case, viz: (1) To make the first payment of $100.00 within thirty days from the date of said agreement. (2) To make the payment of $200.00 on April 1, 1874. (3) To make the payment of $200.00 on July 1,1874. (4) To make the payment of $250.00 on September 1, 1874. That if said John Boyd, plaintiff, had performed his covenants as aforesaid, affiant would have been and was ready, able and willing to have performed his covenant by making and delivering to plaintiff a general warranty deed for the premises described in said agreement. That all the money this suit was brought to recover, was paid to affiant in pursuance of the article of agreement referred to in plaintiff’s affidavit of claim in this case, and affiant was entitled by the terms of said agreement to receive the same, and further says not. After argument of the rule, the court, Ingiibam, P. J., on March 26, 1888, without opinion filed, ordered that the rule be made absolute and judgment to be entered for the plaintiff. Judgment having been entered in favor of the plaintiff for $1,521.80, the defendant took this writ, assigning the said order and the entry of judgment thereon as error.
120 Pa. 559Delaware L. & W. R. Co. v. Cadow (1888)
ERROR TO THE COURT OF COMMON PLEAS OF COLUMBIA COUNTY. No. 90 January Term 1888, Sup. Ct.; court below, No. 233| September Term 1884, C. P. On September 9,1884, an action in case was brought by Albert E. Cadow against the Delaware, Lackawanna & Western R. Co., to recover damages for injuries alleged to have been caused by tbe negligence of the defendant. Tbe plea was not guilty. At tlie trial of tbe cause on October 6, 1886, after hearing the plaintiff’s testimony, the court, Elwell, P. J., on motion, directed tlie entry of a compulsory nonsuit. Subsequently, a rule to show cause why the judgment of nonsuit should not be taken off, was made absolute. At tbe second trial on May 4,1887, the testimony showed in substance tbat on January 28,1884, Albert E. Cadow, aged 86 years, left bis home at tbe corner of Seventh street and Strawberry alley, in Bloomsburg, to go to his work at Lockard’s Car Shops, on the east side of East street, where for several years he had been employed as a fireman. It was between six and seven o’clock in the morning, and very dark. The two tracks of the defendant company’s road cross East street, at Sixth street, nearly at a right angle. On East street, on both sides of the street and across the railroad tracks, the sidewalks, for a distance of sixty feet, were constructed and maintained by the defendant company and were in good condition at the time referred to. In the roadway of East street, at the railroad crossing, planking was put down on the outside and on the inside of the rails so that vehicles could cross the tracks easily. The planking Avas about twenty-two feet in length along the tracks, and at either end of the planking the rails were exposed above the ties, AA'ith the ballast nearly even with the upper surface of the ties. The plaintiff’s usual route to the shops where he was employed was by the sidewalk on the Avest side of East street directly across the railroad, thence by the same sidewalk to (rigger's hotel, thence directly across East street to the shop. He had a stiff knee upon a shortened leg, the effect of an injury received in 1865. At the time stated, the plaintiff came up the west side of East street to a certain, point, where he left the sidewalk and without a light started diagonally across the street in the direction of the shops. In crossing the railroad tracks near the middle of the street his foot was caught on one of the rails, when he fell and broke his leg above the knee. The plaintiff testified, inter alia: “ I was a little in a hurry that morning; it was a cold morning; I was afraid the pipes would be frozen up; I had to get over there and get them thawed out; ” that there was no street lamp burning that morning; and he had never taken any notice of the condition of the crossing, never looked whether it was planked or not. The court, Dbeheb, P. J., of the 43d district, holding special term, charged the jury and answered the points presented as follows: The defendant corporation, in locating its railroad in this town, laid a structure across East street, one of the principal streets, as I understand it, of this borough. The railroad company had a right thus to locate its road and to build it across this street; in doing so, however, it was under the obligation or duty to the public, so to construct and maintain and operate its road that the public could safely pass over it, using due care and caution. Of course, whenever a railroad crosses a street in a town like this, naturally and necessarily there is more or less danger, at the point where it crosses the road, to persons who may be traveling on the highway; and this fact would impose upon persons traveling on the highway the duty to exercise a greater degree of care when traveling across the tracks than would be required if no railroad were there. The complaint of the plaintiff in this case is that he received an injury, because of the negligence of this railroad company defendant, on the morning of January 28, 1884, in regard to the railroad of the company at the point where it intersects the highway. He says that he struck, or “ stubbed ” his foot against a rail, fell and broke his leg; and he claims now to recover damages for the injury that is done him, alleging that the injury to him was in consequence of the negligence of the railroad company in not putting and keeping this crossing in proper repair. Your first inquiry, therefore, in the natural order, will be whether this railroad company was negligent in the making and maintaining of this crossing; and then, if so, whether the negligence of the company was the proximate cause of the injury to the plaintiff. What is meant by “ proximate cause ” is that the injury must be the natural and probable consequence of the negligence, such a conseqxxence as, under all the circumstances of the case, might and oxxght to have been foreseen by the wrong-doer, the railroad company in this instance, as likely to flow from his act. Was the omission of the railroad company to plank between the rails and to fill up with earth or other material for the whole distance across the street negligence on their part ? In other words, was it negligence in them to construct their road at that point in the xnanner in which they did construct it? I cannot say to you, as matter of law, that the omission of the railroad company to plank that road the whole distance across the street was negligence ; it is a question that you must determine, under all the evidence in this cause. The railroad company was bound to so construct their road at that point that people passing along that road or street could do so with safety to themselves and to their teams and carriages, they using reasonable and ordinary care and caution while crossing the tracks. Persons traveling on foot would have a right to travel on that street, would have a right to cross it at any point at which they chose to cross it: if they were traveling along a highway in which a railroad runs parallel with the line of the street, then to cross would be to take great risks upon themselves. While a pedestrian has the right to use the public highway, he must exercise such care and caution while on a part of the street devoted to or used for the purpose of traveling with teams, carriages and on horseback, must use such care, and caution as the circumstances at the time require, what is called ordinary caution. What we mean by Ordinary care is such care, such caution, as a man of ordinary care and prudence would exercise under the same state of circumstances. We have it in evidence here that sidewalks were constructed along the line of East street, and at the point where the railroad crosses this street; that these sidewalks were constructed by the defendant company over and across the line of their railroad, crossing both tracks, and there is no complaint that the company has failed in any respect to perform its duty in relation to these sidewalks. Where there are paved sidewalks in a town like this, they are intended for footmen; and the streets are intended primarily for the passage of carriages, horses, persons using teams or riding on horseback; yet, as I have already said,, a footman may leave the sidewalk and cross the street at other points than at regular paved crossings, but in doing so, he must exercise due care and caution, such care, of course, being graded or gauged according to the immediate, surrounding circumstances. If you find from the evidence that the defendant company was guilty of negligence, and that the injury to the plaintiff was the consequence of such negligence, then the plaintiff will be entitled to recover damages, unless he himself was guilty of contributory negligence. However much the railroad company may be in fault, if this plaintiff himself was guilty of negligence in crossing that road, or crossing at that point at the time and under the circumstances he did, and if his negligence contributed in any degree to the injury which he suffered, the law holds that he cannot recover any damages. The defendant company claims that the plaintiff was guilty of negligence in crossing at the point where he did cross on that morning, and that his negligence and carelessness in so doing did contribute to his injury. Negligence is the omission of something that the exigency of circumstances requires. Was this defendant negligent? Was he careless, in attempting to cross the street at the point where this railroad intersects it? He was employed in a shop somewhere near this crossing, and had been employed there for several years, and for nearly ten months had been in the habit of crossing these railroad tracks at this point from three to four times daily, having moved on the first of April, 1883, into the house where he resided when this accident occurred. He tells us that his usual route was to pass along the west side of East street on the sidewalk, crossing over the railroad track until he came into the vicinity of Gigger’s hotel, and then to cross over the street directly to the shop. He does not remember that he ever crossed the street at the point of intersection with the railroad, 'though he says he may have done so a few times. It is argued by defendant’s counsel that the plaintiff must necessarily have known the condition of this railroad, and that, if it was dangerous, he must have known, or might have known, that fact; and that, knowing that fact, his attempt to cross over the railroad there, in order to save a short distance in his walk or travel, precludes his recovery in this suit. We instruct you that if this crossing was dangerous, and if this plaintiff knew that fact when he attempted to cross upon it, he cannot recover in this suit; for the evidence is clear and uncontradicted that there was a safe way for him to travel, by crossing the railway track on the sidewalk, as he usually had done. Did he know that this crossing was dangerous? He swears that he did not know of its condition, that he had never noticed whether it was planked all the way across the street or not. This case is a simple one, and one in which you are to determine under the evidence any question of fact arising in the cause. The law makes this plaintiff a competent witness; and you are to determine from all the evidence in the case whether he did have knowledge of the dangerous condition of the crossing. If you find that the plaintiff had knowledge of the condition, the dangerous condition, of this road, if it was in a dangerous condition, then the next question for you to determine is was he guilty of negligence, actual negligence, in attempting to cross over the street at that point under the circumstances then present to him? I have already stated to you — what has been very prominent in the case, and you of course will recollect — where the plaintiff worked, his usual route in going to his work; and he tells us that that morning was dark and cold, that he was in a hurry, and that, when he got to this point marked on the map A, he struck diagonally across the railroad track, in order to save time. I have said to you already that he had a right to cross the street at any point at which he chose to cross it; I have said to you that it was the duty of the railroad company to put the crossing in such reasonable and safe condition that persons traveling over it would do so with safety to themselves. Now, bearing in mind the right of the plaintiff to cross the street there, and bearing in mind the duty of the railroad company, was this plaintiff, in attempting to cross at that time in the morning, it being dark, as he says — so dark that he could not see where he was going, is my recollection of the substance of what he said upon that point — -bearing in mind the fact that the street lamp was not lit, and bearing any fact in mind about his physical condition —because he was lame or stiff in one leg — I say, taking all this into consideration, did he act as an ordinarily prudent and cautious man would have acted under the same set of circumstances ? If he did, then, if he received an injury in consequence of the neglect of the defendant company to put that crossing in proper repair, he would be entitled to recover; if he did not act with that ordinary care and caution with which an ordinarily, reasonably prudent and cautious man would have acted under the same set of circumstances, and if his negligence or carelessness contributed to his injury,'then he cannot recover. The plaintiff requests us to charge: 1. That a railroad company which is authorized to cross highways is under a legal duty to construct its road across them in a reasonable manner, with reference to the double use of the crossing for its own purposes and for those of ordinary traveling. It is bound to keep the crossing as safe and convenient for public travel as is practicable, and is liable to individuals using the highway for injuries caused by defects and obstructions created by it, which could have been avoided with reasonable precautions: the same obligation rests upon a company, when, under authority of law, it lays a track upon and along the highway. (Pierce on Railroads, 248, and notes; Oakland Railroad Co. v. Fielding, 48 Pa. 320; Penn. & O. Canal Co. v. Graham, 63 Pa. 290, and others.) Answer: This point is affirmed.4 2. When a person crosses a railroad track by a common and well known foot path used by the public for many years, without let or hindrance on the part of the employees of the railroad company, he cannot be regarded as a trespasser. (P. & R. R. Co. v. Troutman, 11 W. N. 453.) 3. A man has a right to walk in the road if he pleases ; it is a way for foot passengers as well as carriages. (Lord Denman, in 5 Carrington & Payne, 407.) The right of a person to cross the railroad is not limited to the street crossings. (Fitzsimmons v. Joslin, 52 Amer. D. 57.) Answer: The second point is affirmed. While the second clause of this point is correct as a general proposition, yet, in towns where the sidewalks are paved for the use of foot passengers, a pedestrian leaving the sidewalk, where it is in good condition, to travel along — and not merely over — that part of the road or street appropriated for use of teams, carriages and horsemen, might, by such act, be guilty of such negligence, depending upon the surrounding circumstances, as to prevent him from recovering damages for an injury occasioned by a defect in the road or the negligence of some other party. The third point would be correct as to' a railroad built upon and along a street; but in the present case it is not correct, for the reason that the railroad occupies no part of the street, except where it crosses the street. 4. That, in estimating the damages for a personal injury resulting from the negligence of the defendant, the jury may allow not only for the direct expenses incurred by the plaintiff but also for the privation and inconvenience he has been subjected to, for the pain and suffering, bodily and mental, which he has already endured, or is likely to experience, as well as the pecuniary loss he has already sustained and is likely to sustain during tbe remainder of his life from his disabled condition. (Scott Township v. Montgomery, 95 Pa. 444.) And his actual permanent loss of earning power: (Oakland Ry. Co. v. Fielding, 48 Pa. 320; McLaughlin v. Corry, 77 Pa. 109.) Answer: The fourth point is affirmed. The plaintiff has ' given in evidence The American Mortality Tables,,showing the probable length of life of a person of the age of the plaintiff. These tables, as I understand them, are made up from the average of human life based upon a healthy bodily condition, such as life insurance companies require when taking the risk of insurance. You must, in making up your opinion, take into consideration the physical condition of the plaintiff, whether healthy or otherwise. The defendant has requested us to charge: 1. That, if the plaintiff unnecessarily left the sidewalk to cross the railroad at a point where there Avas no public crossing for foot passengers, in the dark, the sideAvalks on both sides of and across the railroad track being in good condition,, he cannot recover, though the planking in the street was defective. Answer: If the jury find from the evidence that the plaintiff was negligent in leaving the sidewalk at the point where he did, then he cannot recover, and the verdict of the jury should be for the defendant.6 2. That if the plaintiff could have reached his destination just as well by some other route, and left the sidewalk, knowing that he would have to cross the railroad tracks in the middle of the street, because it was a few feet shorter distance for him to walk, he having knowledge of a perfectly safe route, he is guilty of contributory negligence, and cannot recover. Answer: Whether the plaintiff was guilty of contributory negligence in leaving the sidewalk and crossing the railroad track, is to be determined by the jury under all the surrounding circumstances proven by the evidence.6 3. The defendant was not obliged to maintain a crossing along its tracks from one side of the street to the other, for the use of pedestrians at the point where the plaintiff was injured; and any one so using it does it at his own risk, and cannot recover. Answer: The defendant was not obliged to maintain a crossing along its tracks from one side of the street to the other, for foot passengers. Whether the plaintiff is entitled to recover against the defendant damages for the injury to his leg, is a question for the jury. If the jury find that he was negligent, and that his negligence contributed in any degree to the injury, he cannot recover. If the defendant was negligent, and the plaintiff was not negligent, then the plaintiff is entitled to a verdict.7 4. That, the plaintiff being a cripple was bound to use greater precaution in crossing the tracks than one not suffering from any infirmity. He was bound to use more than ordinary care; aud, if he did not do so, ho was guilty of such carelessness as to prevent his recovery in this suit. Answer: The first sentence or part of this point is affirmed, I cannot say, as matter of law, that the mere omission to observe more than ordinary care, on the part of the plaintiff, would constitute such carelessness as to prevent a recovery. This question of carelessness is for the jury to determine under all the evidence in the case.8 5. That the plaintiff cannot legally charge to the negligence of the defendant the consequences of his own carelessness; and that, if the jury believe that the accident would not have happened to him but for his own want of care, he cannot recover. Answer: This is affirmed. 6. That, if the proximate cause of the injury to the plaintiff was his leaving the sidewalk and attempting to cross the track at a point in the street out of the prepared highway for pedestrians, it is evident that his own imprudence was the immediate cause of the injury, and he cannot recover, even if the injury were in part directly ascribable to the negligence of the defendant. Answer: I cannot affirm this point; the facts are for the jury.® 7. The defendant is not bound to prove that the plaintiff had actual knowledge of the alleged dangerous condition of the crossing. Plaintiff was employed at the car shops for several years prior to the accident, and had passed and re-passed daily the point where he was injured, and was bound to know of its condition. If he failed to do so, he cannot hold the defendant responsible for his own carelessness. Answer: The defendant may prove the plaintiff’s knowledge of the condition of the crossing by circumstantial evidence. The facts mentioned in this point, if established to the satisfaction of the jury, may lead to the inference that plaintiff did have such knowledge; whether he had or not is for the jury to determine under all the evidence in the case, including the plaintiff’s own testimony. The law makes him a competent witness, but his credibility is for the jury.10 8. If the accident to the plaintiff was the result of negligence in any degree whatever on his part, he cannot recover, even though the defendant was negligent. Answer: This point is affirmed. 9. The plaintiff, according to his own testimony, knew that there was a safe and convenient route where he would meet with no obstructions, and this route he swears he was accustomed to take, viz.: Straight on up the sidewalk to Gigger’s hotel, and thence across the street to the shops directly opposite. Such being the case, his departure from that route, with his crippled leg, in the dark, and with unusual haste, was such carelessness on his part as to prevent his recovery in this suit, even though he did not know of the condition of the railroad 'crossing in the middle of the street. Answer: I cannot affirm this point. It is for the jury to say whether the facts proven show contributory negligence on the part of the plaintiff. If the jury so find, then the plaintiff cannot recover.11 10. If the court should be of the opinion that a pedestrian has the right to cross the highway at any point, then we respectfully ask the court to charge the jury that, if in so doing, in the night time, a cripple with a stiff leg departs from a path which he knows is safe, and ventures hastily upon one whose condition he does not know, in order to reach the same point on the opposite side of the street, he is guilty of negligence, and cannot recover damages for injuries received by falling over an obstruction which he knew lay in his path. Answer: This point is affirmed. 11. That, under all the evidence, the verdict should be for the defendant. Answer: This point is denied.13 I do not deem it necessary for me to say anything further. If you find a verdict in favor of the plaintiff, you must say for what amount of damages you find: if your verdict be in favor of the defendant, you should simply say, We find in favor of the defendant.
120 Pa. 573Showers v. Commonwealth (1888)
error to the court oe over and terminer oe LEBANON COUNTY. No. 361 January Term 1888, Sup. Ct.; court below, No. 3 June Term 1887, O. & T. On June 8,1887, the grand jury returned as a true bill an indictment charging William Showers with the murder of William Kaliler. When the cause was called for trial on September 23, 1887, after a continuance from June term, the prisoner being arraigned in due form of law pleaded guilty of the felony charged, in tbe maimer and form as he stood indicted; whereupon, the court proceeded by tbe examination of witnesses, in tlie presence of the prisoner and his counsel, to determine tbe degree of tbe felony. During this examination, the prisoner made application to be permitted to withdraw his plea of guilty, and to substitute the plea of not guilty. On November 30, 1887, the court set aside all the proceedings after the return of the indictment, including prisoner’s arraignment and plea. On December 15, 1887, tbe prisoner being brought into court for trial, his counsel moved to quash the array of petit jurors for the term, upon the ground that but forty-eight names were drawn from the wheel, of which two were the names of persons who were then deceased, and one, the name of a person who had previously removed from the county, so that but forty-five persons, who were living and resident, were drawn and summoned as jurors. After a hearing of testimony showing the facts sufficiently appearing in the opinion of this court, the court below, McPherson, P. J., overruled the motion. The prisoner, being then called to the bar a second time and duly arraigned, pleaded, not guilty, when issue was joined. The jury then called and sworn, on December 18, 1887, returned a verdict of guilty. A motion in arrest of judgment and for a new trial was overruled and on February 4, 1888, on motion of the district attorney judgment was passed. Thereupon the prisoner took this writ, assigning as error, inter alia, the refusal of the motion to quash the array of jurors.
120 Pa. 579Rommel v. Schambacher (1887)
4 OF PUTT,ADELPHIA COUNTY. No. 142 July Term 1886, Sup. Ct.; court below, No. 132 December Term 1884, C. P. No. 4. On November 24,1884, a summons in case issued in an action by William Rommel against Jacob Schambacher. The uarr, as originally filed, charged a liability of the defendant arising out of the duties lie owed, as an inn- or tavern-keeper, to tlie plaintiff while liis guest.
120 Pa. 583Holloway v. Jacoby (1888)
ERROR TO THE COURT OE COMMON PLEAS OF CUMBERLAND COUNTY. No. 419 January Term 1886, Sup. Ct.; court below, No. 7 January Term 1885, C. P. The case below was an appeal from the judgment of a justice of the peace in favor of the plaintiff in an action by J. F. Holloway, trading as J. F. Holloway & Co., against C. Jacoby. At the trial on April 23, 1885, the case was closed on the evidence when it was agreed by the parties that a trial by jury should be dispensed with, and all matters in controversy submitted to Mr. M. O. Herman, as referee, under the provisions of the act of May 14, 1874, P. L. 166. The report of the referee, filed on June 23, 1885, was as1 follows: FINDINGS OF FACT. I find, from the evidence in the case, the facts to be as follows : J. F. Holloway, trading as J. F. Holloway & Co., the plaintiff, resides at Phoeuixville, Pa., where he is engaged in the wholesale grain trade, and C. Jacoby, the defendant, resides at Kerrsville, Cumberland county, Pa., where he has a warehouse on the Cumberland Yalley Railroad, and is likewise engaged in the grain trade. On March 20th, Holloway, in answer to a letter from Jacoby, of March 19,1884, saying he had a car load of corn for sale, made the following proposition to him by letter: Phcenixville, Pa., March 20, 1884. C. Jacoby, Esq., Kerrsville. Dear Sir: — Your favor 19th is received and noted. We will give 53e. per bus. for the car corn, provided it is good salable corn. If you accept consign to Collegeville, Pa., care P. & R., at Harrisville. Yours truly. J. E. Holloway & Co. Will send check promptly or you can draw if you wish to, through Farmers’ and Mechanics’ bank at this place. J. H. F. & Co. Jacoby responded to this proposition on March 21, 1884, as follows : Kerrsville, March 21, 1884. J. F. Holloway & Co. Sir. — Yours of the 20th to hand, contents noted. Will accept your offer for one car of com, which I will ship to-morrow C. V. R. 207, with corn, and have drawn on you for 283 dollars, which render statement at your earliest convenience, and oblige. C. Jacoby. The corn was bought without inspection by Holloway, and it was mutually understood that it was to be paid for on the track at Kerrsville. Jacoby, on March 21,1884, the date of his letter, shipped to Holloway a car load of corn containing 30,000 pounds, and the same day drew on him for $283, which was in due course accepted and paid. On March 27, 1884, the corn arrived at Rahn station, on the P. & R. railroad, at which place it was on the same day tendered to H. M. Hunsicker, to whom Holloway had sold it, whereupon Hunsicker inspected it, found it spoiled and refused to receive it. The corn in the middle of the car and the top of the load, from four to six inches in depth, was good, and the remainder, being about one third of the whole, was heated and spoiled to such an extent that it stuck together in lumps. The sale to Ilunsicker was for 65 cents per bushel. Upon his refusal to receive it Holloway unloaded the corn, separating the good from the damaged, and sold it in lots for the best price that could be obtained, as follows: Thus he lost in the transaction $118.72, the amount claimed in this action, and for the recovery of which it< was brought. The evidence leaves no room for doubt that the corn, when it reached Hahn station on March 27, 1884, was not good salable corn, and it could not have been good salable corn when loaded in the car at Kerrsville. All the witnesses examined on the subject concur in the opinion that good salable corn shipped in the month of March would not spoil in transit to the extent that this was, in six days, the time this corn was on the way. [But, though good salable corn when shipped, it does not appear that its damaged condition was apparent or known to Jacoby or to those who loaded it. They all believed it to be good salable corn. Jacoby received no notice of the defective quality of the corn or of any complaint in reference to it until the latter part of May, 1884,] 1 when he received the following letter from Iloiloway: Piicenixville, Pa., May 22, 1884. O. Jacoby, Kerrsville, Pa. Dear Sir. — Enclosed please find statement of account for car corn shipped us. As we advised, the ear was hot and damaged on arrival, and we have handled it as best we could. Please send us check for balance due us, by return mail, and oblige. Yours Truly, J. F. Holloway & Co. The balance claimed by this letter and the statement referred to was the $118.72, loss as before stated, which Jacoby refused to pay, and hence this suit. CONCLUSIONS OF LAW. It will be observed that the subject of the contract was a “ear of corn.” This is what Jacoby proposed to sell, and Holloway offered 53 cents per bushel for it provided it was good salable corn. Jacoby accepted the offer “for one car of corn,” simply, and at once shipped it and drew on Holloway for the price, and Holloway accepted and paid the draft and received and disposed of the corn without any notice to Jacoby of its defective condition. This ended it; the contract was executed. The corn being spoiled and not, therefore, good salable corn, Holloway might have refused to receive it, and had he done so and promptly notified Jacoby of its rejection, he would have had his action to recover back the amount of the draft paid; for, having bought it upon condition that it was good salable corn, he was not bound to take corn of an inferior quality. Yet, as he not only received and disposed of it, but never gave any notice to Jacoby of its defective quality until two months after its delivery, he must be taken to have waived the condition upon which he bought. [According to the terms of the contract it is clear that there was no express warranty of quality, nor do the facts and circumstances of the case give rise to an implied warranty.] 8 Where there is no knowledge on the part of the vender of goods of their defective quality, although no opportunity of inspecting them is given the vendee, the sale itself raises no implied warranty of quality or even merchantability, on which the vendee can sue if the goods prove worthless: Eyan v. Ulmer, 108 Pa. 332. This is the last case on the subject and very much like the one in hand. [There was no fraudulent representation or concealment by Jacoby: the damaged condition of the corn was not known to him, and there is nothing therefore in the case to subject him to the implication of warranty of quality or even merchantability. There being no warranty express or implied, no deceit or fraudulent representation, the plaintiff has no ground of action for damages against the defendant.] 3 The decision must be given in favor of the defendant. And now, June 23, 1885: The decision of the referee is rendered in favor of the defendant. To this report the plaintiff filed various exceptions, the material ones being the following: 2-4. The"parts of the report embraced in [ ]8to4 7. The finding that “Jacoby accepted the offer for one car of corn simply,” instead of finding that the plaintiff offered to purchase one car of “ good salable corn ” and that the defendant accepted this offer. On December 3, 1885, the referee filed his report upon the exceptions filed: I have heard the arguments of counsel on the exceptions filed and reconsidered the whole case. Whilst, according to the evidence, the corn could not have been good salable com when shipped, I cannot find that Jacoby was aware of its defective condition, without believing that he and his employees who handled it have testified falsely, and this I do not believe. It would be entirely consistent with the evidence, that its defective condition was, as yet, latent, and therefore, unknown to him or them. Nor can I say that his failure to discover its true condition was so grossly negligent as to justify the inference of fraud. On the facts, the conclusion could not be otherwise, under the law. The first exception was not argued. None of the exceptions are sustained. And now, December 3, 1885: The exceptions filed to the decision, of the referee, rendered on the 23d of June, are overruled, and thereupon, it is ordered, that judgment be entered for the defendant according to the said decision. Judgment having been entered for the defendant, as ordered, the plaintiff took this writ, by different specifications assigning as error the overruling of his said exceptions, ut supra.
120 Pa. 590Brown v. Beecher (1888)
ERROR TO THE COURT OE COMMON PLEAS OE WARREN COUNTY. No. 297 January Term 1886, Sup. Ct.; court below, No. 95 December Term 1883, C. P. On November 7, 1883, a summons in ejectment was issued in an action by J. M. Brown against M. Beecher and W. H. Copeland, as Beecher & Copeland, and The First N. Bank of Warren, to recover the undivided halves of two oil-leaseholds in Mead township, known as leaseholds Nos. 46 and 47, each containing three acres, more or less. The plea was, not guilty. At the trial on October 8, 1885, it was admitted by the abstracts that the lands on February 3, 1882, belonged in fee to G. A. Comen and D. Comen, who, on that date, “in consideration of the rents, reservations, covenants and agreements hereinafter mentioned and which on the part of the party of the second part are to be kept and performed,” by two like indentures demised and let to G. W. Marsh, the party of the second part, the lands described in the writ, for the term of fifteen years from May 1, 1880, “with the sole and exclusive right and privilege, during said period, of digging and boring for oil and other minerals and collecting the same therefrom,” upon the terms and conditions, inter alia, that the lessee, his heirs, etc., and assigns, should deliver to the lessors, their heirs, etc., and assigns, one half part of all the oil, gas or any valuable mineral or volatile substance discovered, excavated, pumped aud raised, etc.; that on April 20,1882, G. W. Marsh, by assignments under seal, indorsed upon the releases, transferred to John A. Brown, his heirs and assigns the one half interest in each of said leaseholds, “subject to all the agreements, covenants and conditions herein contained ”; and that on May 20, 1882, the title to said leaseholds was in G. W. Marsh and John A. Brown. The plaintiff put in evidence the records of the said leases and assignments (recorded May 25, 1882), and followed by the deed of John A. Brown to J. M. Brown, dated March 15, 1883, recorded May 18, 1883, conveying all the interest of John A. Brown in said leaseholds. Possession by the defendants having been proved by the writ and return, the plaintiff rested. The defendant, in order to show that G. W. Marsh and John A. Brown composed a partnership firm to which the leaseholds belonged, and as a partnership were indebted to Beecher & Copeland, before the plaintiff bought the interest of John A. Brown, and that afterwards, while G. W. Marsh’s dominion over the leaseholds continued, a fieri facias was issued upon a judgment for this partnership debt, whereby Beecher & Copeland became entitled to Marsh’s equity to insist that the leaseholds should go to pay Beecher & Copeland as partnership creditors, in preference to J. M. Brown, and that on this writ the leaseholds had been sold to one of the defendants, gave in evidence: (a) Note under seal with warrant of attorney made by G. W. Marsh, John A. Brown and W. C. Wolford, to Beecher & Copeland, dated July 4, 1882, at three months, and judgment entered thereon in favor of Beecher & Copeland on February 4, 1883, for $3,360; (5) a fieri facias on said judgment issued February 14, 1883, and an alias fieri facias on same issued May 8, 1883, and levy made thereon on May 15, 1883, upon the leaseholds in dispute; and (o') the sale of the leasholds on said last mentioned writ on June 30, 1883, to The First N. Bank of Warren. G. W. Marsh, called by defendants: Q. What were your relations with John A. Brown in regard to that property, in controversy? Defendants’ counsel propose to show, by parol proof, that the debt for which this note was given to Beecher & Copeland, was a partnership debt of the firm of Brown & Marsh, that is to say, the firm composed of John A. Brown and George W. Marsh, and that the property sold was the property of that firm at the time the execution came to the sheriff’s hands, and at the date of sale. Objected to, as incompetent and irrelevant. Objection overruled.3 Evidence was then adduced to support the offer and the defendants rested. In rebuttal the plaintiff put in evidence the record of a deed from G. W. Marsh to W. C. Wolford, dated July 11, 1882, recorded September 18, 1882, by winch the grantor had “this day sold, conveyed and delivered and given possession,” to W. C. Wolford, his heirs and assigns, all the grantor’s interest in a large number of leaseholds, including his one half interest in leases “ given to G. W. Marsh from C. A. & D. Cornen; ” this to show that after July 11, 1882, G. W. Marsh had no interest in the lands in controversy. The plaintiff again rested. In sur-rebuttal, the defendants called G. W. Marsh: Defendants’ counsel offer to show by the witness that Wolford is his son-in-law and possessed of means, that the witness became involved in managing this property, and that Wolford became his surety, and that he transferred this property to him as security for his becoming surety, and not as an absolute transfer. Objected to on the ground that the record still shows the title in Wolford, and it is not proposed to prove that it has been re-conveyed to Mr. Marsh, and the testimony is incompetent ; also, objected to on the further ground that it is not in compliance with the legislation respecting leasehold mortgages, and hence the evidence is incompetent. Objections overruled, testimony admitted.6 The witness testified in support of the offer, when the defendants closed. The purport of other evidence adduced, not given above, sufficiently appears in the opinion of this court. At the close of the testimony, it was agreed that the jury be withdrawn and the cause submitted to the court, upon the evidence already taken, to find the facts and conclusions of law, and to enter judgment thereon, under the act of April 22,1874, P. L. 109 * FINDINGS OF FACT. On November 23,1885, after argument, the court, Brown, P. J., filed the following findings of fact and law: By two written agreements, both bearing date February 3, 1882, C. A. Comen and D. Cornen leased the premises in dispute to George W. Marsh, his heirs, executors, administrators and assigns, for the term of fifteen years from May 1, 1880. The leases were “ with the sole, and exclusive right and privilege, during said period, of digging and boring for oil and other minerals, and of gathering and collecting the same therefrom.” Each lease is for three acres of land in Mead township, Warren county, numbered respectively 46 and 47. On April 20, 1882, George W. Marsh assigned the undivided one half of the two leases to John A. Brown. [This assignment was pursuant to an arrangement between Marsh and Brown existing at the time Marsh obtained the leases.] 8 [George W. Marsh and John A. Brown were partners engaged in the business of prospecting for, and producing, petroleum, and upon and before March 15,1888, were operating upon and developing the premises in controversy as partners, and the leases mentioned were part and parcel of the partnership property used in carrying on the partnership business.] 1 On March 15, 1888, John A. Brown deeded to the plaintiff, J. M. Brown, all his interest in the premises for the consideration of $2,000, to apply on a larger indebtedness of John A. Brown to the plaintiff, which deed was recorded May 18,1888. [In operating upon and developing the premises in dispute with other property of the firm, Marsh & Brown incurred a partnership debt to the defendants, M. Beecher and W. H. Copeland, dealers, in the name of Beecher & Copeland, in hardware and oil well supplies, etc. This indebtedness was incurred in the firm name of Marsh & Brown, and was a partnership debt.] é On July 4, 1882, G. W. Marsh, John A. Brown and W. C. Wolford gave a judgment bond to the defendants, Beecher & Copeland, for the sum of $8,200, being the amount of the debt due from Marsh & Brown. On February 3,1883, judgment was entered on this note for, including attorney’s commissions, the sum of $3,360. On February 14, 1883, a fieri facias was issued on the judgment, returnable to the first Monday of March, which was returned by order of plaintiff’s attorney. On May 8, 1883, an alias fieri facias was issued, which was received by the sheriff on the same day at 5 o’clock 40 minutes p. M. On May 15, 1883, the sheriff made a levy upon the two leases, the property in dispute, together with their equipments of carpenter’s rigs, engines, boilers, tanks, tubing, casing, and other property. On J une 30,1883, the sheriff made sale of the property levied upon to the defendant, The First National Bank of Warren, the judgment having previously been assigned to said bank. The defendants are in possession and claiming title and right by virtue of the sheriff sale. W. C. Wolford, who signed the judgment bond with Marsh and Brown, did so as the surety of Marsh and Brown, or rather as the surety of Marsh, and [on J uly 11,1882, Marsh assigned, by instrument recorded September 18, 1882, all his interest in the property in dispute to Wolford, as collateral security for money advanced, and as collateral security for signing the judgment bond to Beecher & Copeland.] 7 [Wolford never took possession of the interest thus assigned to him,] 8 and never assumed any management or direction of the business. The property continued in the same custody and under the same management after the assignment to him as before. John A. Brown is the brother of the plaintiff. The transfer of his interest to the plaintiff, made on March 15,1888, was without the consent or knowledge of Marsh, and the property continued in the same custody and under the same management after such transfer to plaintiff as before. Whether the plaintiff actually knew, when he took the transfer of his brother’s interest, that the relation of partnership existed between his brother and Marsh, and that the property in suit was partnership property, does not appear by any direct testimony ; but we find that he did so know from the testimony of Marsh and the cross-examination of the plaintiff, taken in connection with the fact that he knew, or ought to have known, that the leases were but chattels, and that he had abundant opportunity to know the nature and character of the business in which Marsh and his brother were engaged, and abundant opportunity to learn the fact hereinbefore found, viz.: That the property in suit was the partnership property of George W. Marsh and John A. Brown, and so used by them in carrying on their partnership business. Plaintiffs’ points: 1. The equity which one partner has to apply partnership assets to the payment of partnership debts, ceases when he ceases to have dominion over and control of the partnership effects, and he may waive such right by permitting the partnership effects to be applied to a different purpose. Answer: Affirmed. 2. That J. M. Brown, the plaintiff, purchased his interest and acquired his rights in question, with record notice that Marsh had sold his interest in the joint effects of Marsh and John A. Brown to Wolford, absolutely, and Marsh cannot now show, by parol, such absolute conveyance to be a security merely, and thereby effect said J. M. Brown’s rights so acquired. Answer: Refused. 3. That when the levy and sale were made under which defendants claim, there were no assets of Marsh and John A. Brown, jointly, or as a firm, out of which either of them could ask to have their joint debts paid, as each had, prior to said levy and sale, disposed of his interest in the joint effects. Answer: Refused. 4. That even if Marsh can show, as against J. M. Brown’s rights, that his conveyance to Wolford is a security merely, he still is in no position to enforce the equity set up, for the reason he has lost control of his interest in the joint effects, and the power to apply it to joint debts, by conveying it to Wolford as a security, which security Wolford still holds to indemnify him against his existing liability for Marsh, and this with the agreement of Beecher & Copeland. Answer: Refused. 5. That if Marsh and John A. Brown were partners in regard to this property, Marsh, and J. M. Brown were equally so after the purchase by J. M. Brown, for the reason that the business was carried on after his purchase as before, until defendants took possession of the property. That if Marsh desired to enforce the equity now claimed, he should, when J. M. Brown purchased the interest of John A. Brown, have wound up the business of the firm of Marsh & Brown and liquidated the firm debts, and in not doing so, but allowing the business to proceed after J. M. Brown purchased, as before, Marsh waived his equity, and the assets became the property of Marsh and J. M. Brown. Answer: Refused, inasmuch as the evidence and the matters recited fail to show any waiver by G. W. Marsh of his right or equity to have the partnership assets applied to the partnership debts. 6. That the evidence does not prove Geo. W. Marsh and John A. Brown were partners as regards the property in question. Answer: Refused. 7. That under all the evidence the plaintiff is entitled to recover. Answer: Refused.33 8. The writ of Beecher & Copeland being against Marsh, Brown & Wolford, and the property sold thereon being their property so far as the return is concerned, defendants are bound by such evidence of debt and return, and cannot contradict the same by showing the debt was a partnership , debt, or the property sold partnership assets. Answer: Refused. Defendants’ points: 1. The title conveyed by J. A. Brown to the plaintiff of his interest in the leasehold held and owned by Marsh & Brown, was subject to the paramount lien of the debt of said firm of Marsh & Brown to Beecher & Copeland, and the sale of the property upon a judgment for said debt to the defendant, carried the title to the entire property so sold to them, and the plaintiff cannot recover. Answer: Affirmed. 2. The judgment upon which the property in controversy was sold by the sheriff and purchased by defendants, having been for a partnership debt, and the property sold being partnership assets, it was sufficient to convey the title, that the judgment was against said Marsh & Brown in their individual names. Answer: Affirmed. 3. From all the evidence in the case the plaintiff cannot recover. Answer: Affirmed. CONCLUSIONS OF LAW. Having found the existence of a partnership between G. W. Marsh and John A. Brown, and that the premises in dispute were the partnership property, and the judgment of Beecher & Copeland the partnership debt of that firm, and having found that when John A Brown conveyed or transferred his interest to the plaintiff, Marsh had the right to insist that the property of the firm should go to the payment of the firm debts, and that such right continued unimpaired to the time when the execution in favor of Beecher & Copeland came to the hands of the sheriff, and to the time of the levy and sale thereon, the conclusion, we think, follows that the sheriff’s sale to The First National Bank vested a good title to the entire property in dispute. If no exceptions to the foregoing findings of fact or conclusions of law are filed in the prothonotary’s office within thirty days after service of notice of this decision on the parties or their attorneys, the prothonotary will enter judgment in favor of the defendants. On December 9, 1885, the plaintiff filed exceptions, which inter alia alleged error: 3. In the finding of fact embraced in [ ] 8 4. In the finding of fact embraced in [ ] 1 6. In the finding of fact embraced in [ ] 4 7. In not finding that the assignment made on July 11, 1882, from Marsh to Wolford, was by deed absolute in form, wherein the possession is expressly “ delivered and given ” to Wolford, duly acknowledged and recorded.5 9. In the finding of fact embraced in [ ] 7 . 10. In the finding of fact embraced in [ ] 8 11. In not finding that by the deed from Marsh to Wolford, on July 11, 1882, Marsh parted with all his dominion over the leases or any part thereof.9 On January 4, 1886, after argument of the foregoing exceptions, the court filed a supplementary finding of facts not material to the cause as here decided, and ordered judgment to be entered according to the opinion previously filed. Judgment having been entered in favor of the defendants, as directed, the plaintiff took this writ, specifying as error, inter alia: 1, 2. The overruling of plaintiff’s 4th and 3d exceptions.1 8 3. The admission of defendants’ offer.3 4, 5. The overruling of plaintiff’s 6th and 7th exceptions.4 5 6. The admission of defendants’ offer.6 7-9. The overruling of plaintiff’s 9th, 10th and 11th exceptions.7 *° 9 22. The answer to the plaintiff’s 7th point.88
120 Pa. 608Ellis v. Academy of Music (1888)
ERROR TO TILE COURT OR COMMON PLEAS NO. 4, OR PHILADELPHIA COUNTY. No. 437 January Term 1887, Sup. Ct.; court below, No. 73 December Term 1885, C. P. No. 4. On December 4,1885, The American Academy of Music brought an action in case against John Ellis. The narr set out tbe ownership by the plaintiff of two certain contiguous lots of ground with the messuage or building thereon erected, situated on the south side of Locust Street in the eighth ward of the city of Philadelphia, bounded and described: — One of them on the south side of Locust Street containing in front on Locust Street 18 feet, and extending in depth southward of that width, 170 feet to the north side of an alley or court ten feet wide, loading westward into another ten feet wide alley or court, which leads southward into Lardner street■the other, contiguous to the foregoing, containing in front on said Locust street 20 feet and extending in depth southward of that width, 175 feet, “ with the free use, right, liberty and privilege of the said ten feet wide alleys or courts, as passageways and water-courses, witli or without horses, cattle, carts and carriages, at all times forever, in common with the owners, tenants and occupiers of other lots bounding thereon, etc.” It was then charged in the first and second counts of the narr that the defendant, on November 3, 1884, and on divers other days and times between that day and the commencement of this suit, etc., “ wrongfully and injuriously placed and erected and caused to be placed, and erected divers doors, gates, shedding, large quantities of boards, planks, wood, piles of manure and other materials, in, upon, over and across said alleys, courts and ways,” etc., etc., and thereby during all the said times the said alleys, courts and ways were and still are greatly obstructed, etc. In a third count, it was charged that the defendant, on said date, and at divers other days, etc., had placed or caused to be placed piles and heaps of manure and other materials near to and against the wall of said plaintiff, in so careless, negligent and improper a manner as to greatly weaken, injure and damage the said messuage and premises of the said plaintiff and render the same incommodious, unsafe and unfit for occupation, etc. The plea was, not guilty. At the trial on February 10,1887, among other facts sufficiently appearing in the charge of the court below, it was shown that the defendant was an owner of a lot or lots abutting upon the said east and west alley, opposite to the premises of the plaintiff, and on said lot was erected a stable occupied by the defendant, and that as such abutting owner the defendant was in enjoyment of the same rights and privileges in the use of the said alleys or courts as were enjoyed by the plaintiff. The properties of both plaintiff and defendant were bounded on the alley between them. It also appeared that a suit had been brought by the plaintiff against the defendant to No. 3 September Term 1884, for the erection of the nuisances in this same ten feet alley, which suit was tried on April 8, 1885, resulting in a verdict and judgment for the plaintiff for $10 damages and costs. The court, Arnold, J., charged the jury and answered the defendant’s points as follows: The Academy of Music, the plaintiff in this case, has brought this action against John Ellis, which is known in law as an action for a nuisance, the obstruction of a private right of way. It had previously brought suit for the same cause of action in another court, and recovered a verdict in its favor with an assessment of damages, as you have been told, of 810. This suit is an action for continuing the nuisance after the right of the plaintiff to have it abated had been established. A nuisance is defined to be anything that works hurt, inconvenience or damage. Any invasion of a right, without regard to the extent of the damage, must be vindicated, if the right exists and it lias been invaded. The Academy of Music claims title to the free and unobstructed use, right, liberty and privilege of a certain ten feet alley which is on the south end of two lots of ground bought by the Academy about thirty years ago. That alley is ten feet wide, and runs east and west from the rear of the Academy lot, into another alley which runs south into Lardner street. You and I have been over both alleys, and have seen them, and have in our minds their location. John Ellis, the defendant, also has the same free and unobstructed use, right, liberty and privilege of those same alleys. The free and unobstructed use of an alley means exactly what those words imply; free, because it is open to those who are entitled to it, and unobstructed, because they may use it without being impeded in any way. [By the rule of law, if that alley should be vacated at any time, the land, or the soil of it, would go in equal parts to the adjoining owners, unless it appeared that the soil was contributed more by one adjoining owner than the other; and, as that does not appear in this case, we may well assume that upon the vacation of the alley the soil of the alley belongs in equal parts to the private owners abutting thereon. That is to say, if the alley should be vacated, the Academy would get the five feet next to its brick wall, and Mr. Ellis would get the five feet next to his stable, and the school house lot have five feet next to it. Therefore, there is a right in the adjoining owners, subject to the joint use of those persons abutting thereon who have rights given to them either by tlioir deeds, or who have acquired rights by long continued use thereof.]1 Exception. [Parties having the use of an alley which is free and unobstructed, are entitled to the same use of it that the public is entitled to on its highways. If it is wrong for a private owner, owning on both sides of the street, to shed over the street, it is wrong for a private owner to shed over an alley if the other owners object. No matter if they are not injured to any considerable extent, still if their legal right is invaded, they are entitled to have that right vindicated by verdict and judgment in their favor establishing the right and its invasion.] 8 Exception. [Mr. Ellis put up that shed. He does not deny it. It is a legal obstruction, such as a Court of Equity, in view of the fact that there had been a previous verdict upon the same state of affairs, would by an injunction upon Mr. Ellis compel him to take down.] 3 Exception. As to the gate, it was put up first, it is said, by a circus company. If Mr. Ellis had nothing at all to do with the gate, either to put it up, or to maintain it, or to continue it after it was there, of course he would not be responsible for it. He is only responsible for such acts upon the alley as he himself does. But that gate became decayed, and Mr. Ellis’s son, who attended to his business for him, had it renewed, and it is now closed by Mr. Ellis, his son, and his workmen every night. [If that gate had been there when the right of way was laid out, that is, when the alley was laid out, it would not be a wrong to continue it; but a party has no right to change the condition of the alley except with the consent of all the parties bounding thereon. Therefore, the gate, being put there after the right of the Academy, and after Mr. Ellis’s right was conveyed by deed, was put there subject to objection by any person who did not consent to it.] 4 Exception. Other objections are made. The next is, that there was a plank between the alley and the school lot. Mr. Ellis said that it was put there to keep the school lot earth from sliding down into the alley. In other words, it is a sort of wooden retaining wall. I do not know that so much objection is made upon that point, and I think it is a matter for the jury to say whether a wooden retaining wall upon the side of an alley which would keep earth from an adjoining lot from sliding into the alley, is such an obstruction as would amount to a nuisance and would entitle parties to recover damages. [As to cleaning horses in the alley, the deed gives no such privilege. The owner of an alley has no right to turn it into a stable yard.] 5 Exception. Necessity sometimes justifies acts on the part of a property owner which would otherwise be a nuisance. No man has a right to throw wood or stone into a street at pleasure. Inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried into his own house, and it may lie there for a reasonable time. It would be the same as to taking in coal. So also, in the ease of building houses. Stone, brick, sand and other material may be placed upon the street, as we see every day, provided it be done in the most convenient maimer and be not unreasonably prolonged. The primary object of a street, and so also of a private way, is for free passage. Anything which impedes free passage without necessity, is a nuisance. If the nature of a business is such as to require the unloading and loading of many more wagons than can be conveniently contained within a man’s own private property, be must either enlarge his property or remove his business to some more convenient spot. These are well established rides of law which I am quoting to you, and not my own words. A cart or a wagon may be unloaded at a gateway. This must be done with promptness. So, as to repairing houses. A man submits to inconvenience occasioned necessarily in the repairing of a house, but if the inconvenience is prolonged for an unreasonable time, the public have a right to complain. These are rules as to the public highway, and they apply also to those private rights of way where a few persons are entitled to use them. A man lias no right to eke out the inconvenience of his own premises by taking the public highway into his stable yard. The same rule applies to a private way. [Therefore, if you find from the evidence that Mr. Ellis makes use of that alley-way by turning it into a stable yard, that is a wrong for which he is liable here.] 0 Exception. In regard to manure, I do not see anything in the evidence which shows that Mr. Ellis used the alley for dumping manure into it. Undoubtedly manure is created by getting out hay; but that is one of the incidents in the use of a way. It will become dirty, and dirt becomes manure. There does not seem to be, in this case, any proof that Mr. Ellis has been using that alley as a storage place for manure. Also, as to the privy-boxes that you have heard about, it appears that they were removed after the last trial, probably about the time this second suit began. Mr. Ellis has a right to drop his hay out of the window, put it in a barrow, and wheel it into the stable, just as he has the right to haul his wagon up alongside of the window on Lardner street to take his hay in. These are the temporary uses which a man-may make of a public or private way, for the purpose of conducting his business. He has no right, however, to take it permanently and continue that use. [Therefore, as to the shedding, I say to you that that is an obstruction for which the plaintiff is entitled to your verdict.] 7 Exception. [So also as to the gate. If you find that that gate was put in after the plaintiff and Mr. Ellis derived their title to the alley, and the plaintiff objects to it, it has a right to object, and also a right to a verdict. It is nothing that the inconvenience is small. It may become large.] 8 Exception. I am quoted as saying to you that scenery could not be taken in there because these doors are too small. That was apparent to you and to me when we saw the place; but the Academy may, if it sees fit, enlarge the doors. I simply said, not as a matter binding upon either party, but in answer to an objection that they could not get their scenery in, that evenif they got it up through the alley, they could not get it into the building because the door now is too small; but they may enlarge their door if they see fit. [They might also complain, that in case of a fire the firemen would have to tear the shed down before they could put a stream of water up there. There are some inferences which jurymen may draw upon their own knowledge. For instance, it is quite well understood by persons who live in the city, that in case of a fire there, firemen would not want to get an engine up in that alley, but would take the hose up, and after they got the hose up, and wanted to play on the building, and found that there was a shed there, they could not do it until they had torn the shed down. So also a fireman, going in there at night, would have to get over the gate to unbolt it. Thé fireman might not know whether it was locked, or barred, or what was the case.] 9 Exception. Under some circumstances, that might be a very great inconvenience, and under other circumstances, very slight. If the alley itself was a nuisance, the Board of Health might order it to be abated by being paved or cleaned, if it became filthy, and charge the expenses upon the adjoining owners. [The complaint here is, not as to the alley on the street from the outside, but as to the gate that is inside; that the use the defendant makes of it together with the shed, may in time ripen into a right, by reason of which they would claim the entire ownership of the alley as part of the stable yard.]10 Exception. [The plaintiff claims that its rights have been violated here, and for that it claims at your hands a verdict. A former action established that fact, and therefore there must be a verdict for tlie plaintiff in this ease.] 11 Exception. An action at law lies for any injury to land or property, however inconsiderable, which is occasioned by a nuisance. A man cannot with impunity invade the premises of another by a nuisance, because the damage may be inappreciable. The law allows at least the recovery of nominal damages as evidence of the plaintiff’s rights. [In an action for continuing a nuisance, as this is, after a verdict for the plaintiff in a former action for the same injury, lie is entitled to recover such damages as will punish the defendant and compel him to abate the nuisance, and this, although the erection is of great value to the defendant, and the injury to the plaintiff is inconsiderable.] 13 Exception. In the first case, the damages given were nomina], being damages in name only. Six cents, $1.00, $5.00, $10.00 — any small sum, is considered nominal damages. It establishes the right, hut as the injury is small, it goes no further. When you come to a second suit, then the jury has power to give damages, which are what we cal] punitive, and which makes it so expensive for the defendant that he will cease to continue the use which has been complained of. [What the damages in this ease shall be, I leave to you. I bave laid down to you the rules of law as I have taken them from our books, leaving it altogether to you to apply those rules to the case, saying to you that inasmuch as the defendant does not deny that he put up the shed and keeps it there, and also the gate, that he creates sueli a nuisance that the plaintiff has a right to recover.] 13 Exception. As to the use of the alley for currying horses, whether that is done or not, I leave to you to say. As to the damages I leave that altogether to you. The defendant asks me to charge you as follows: 1. That if the gate was continued across the alley-way to protect it from tramps and other intruders, and for the safety of the property owners entitled to the use of the alley, it is for the jury to say whether it was any practical obstruction to the use of the alley by the plaintiff, and if the jury find it was not, the verdict must be for the defendant. Answer: I have practically answered that heretofore, by saying that this would be so if the gate were there when the rights to the alley were granted, or if this were the first suit, to keep the damages down to a nominal sum; but the evidence shows that the gate was put there within twenty years, I think, and it has been maintained by the defendant, and has been the subject of a former suit in which it was condemned as an invasion of the plaintiff’s right.14 Exception. 2. That if the gate and shed have not interfered with the use of 'the alley by the plaintiff, there can be no recovery by the plaintiff in this case on their account. Answer: I decline this point.15 Exception. 3. If the jury find that the planking was put on the north side of the alley for the purpose of keeping the soil and water from the school lot from being washed over into the alley, there can be no recovery in this action by the plaintiff on this account, if the jury find that it was a reasonable precaution and not an obstruction to the use of the alley. Answer: Affirmed. 4. That if the jury find, as the plaintiff’s witness Higby has testified, that the plaintiff has not been interfered with, in its use of the alley, by the posts, planking, shed and gate, then the verdict must be for the defendant. Answer: Refused.16 Exception. 5. If the jury find from the evidence, that the matters complained of by the plaintiff, were not a practical hindrance and an unreasonable obstacle to the use of the alley by the plaintiff, then the conduct of the defendant as to these matters was not wrongful, and created no illegal obstruction, and this action will not lie against the defendant and the verdict must be for defendant. Answer: Refused.17 Exception. I have heretofore said to you that a man has no right to eke out the inconvenience of his own premises by taking the public highway into his timber yard, or stone yard, or stable yard. In saying that, I lay it down as a rule of law. I do not want you to imply that, because I say it, I have said that the defendant is using this yard as a stable yard to curry horses in. I leave that for you to find. The verdict of the jury was in favor of the plaintiff for $400. A rule for a new trial was granted, argued and new trial refused, when, judgment being entered on the verdict, the defendant took this writ specifying as error: 1-13. The parts of the charge embraced in [ ] 11013 14-15. The refusal of defendant’s 1st and 2d points. 14 13 16-17. The refusal of defendant’s 4th and 5th points. 16 17
120 Pa. 624Fire Insurance Patrol v. Boyd (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY. No. 122 July Term 1887, Sup. Ct.; court below, No. 900 March Term 1883, C. P. No. 1. On April 17,1883, Julia F. Boyd, widow of Charles S. Boyd, deceased, and Herbert H. Boyd, son of said deceased, by B. W. Andrews, bis next friend and guardian, brought an action in case against The Fire Insurance Patrol of the city of Philadelphia, and James A. Hutchinson and Andrew C. Koochogey, its employees, to recover damages for the loss sustained by the death of said Charles S. Boyd, alleged to have been caused by the negligence of the defendants. The plea was the general issue, not guilty. At a trial on January 28, 1885, before Biddle, J., after the plaintiffs case in chief was closed, the court ordered a compulsory nonsuit as to The Fire Insurance Patrol and Koochogey, and the jury rendered a verdict in favor of the plaintiffs against Hutchinson, the other defendant, for $25,000. On March 28, 1885, the court refused a motion for a new trial on the part of Hutchinson, and the same day refused the plaintiffs’ motion to take off the nonsuit as to the other defendants, The Fire Insurance Patrol and Koochogey. Thereupon, the plaintiffs took a writ of error to No. 36 July Term 1885. On June 12, 1885, the jury fee was paid by the defendants’ counsel and the prothonotary entered judgment upon tlie verdict rendered against Hutchinson. On October 4, 1886, the order directing the non-suit as to Koochogey was affirmed by this court, and that directing the nonsuit as to the Fire Insurance Patrol reversed, with a venire de novo awarded. Tlie case is reported, sub nomine Boyd v. Insurance Patrol, 113 Pa. 269. At tlie second trial, on April 25, 1887, it was made to appear in tbe plaintiffs' case, that there had been a fire in tlie store of Goon, Brother & Co., 29 South Front street. The Fire Insuranee Patrol, a corporation created and. sustained by the insurance companies of the city, had sent its patrolmen there, and they had used heavy tarpaulins in the fourth floor of this store. A few days after, on the afternoon of May 6,1882, two of these patrolmen, Hutchinson and Koochogey, went with a one-horse wagon to bring the tarpaulins away. They folded them up into bundles in the fourth story. Instead of putting them on a hoist, which ran up and down a large hatchway immediately alongside, and which was worked easily by the ropes, they determined to pitch them out of the window upon the pavement. Koochogey was stationed on the pavement to give notice to passers-by, so that they might not be struck by the tarpaulins; Hutchinson remained in the fourth story to throw them out. The bundles were quite large and each weighed about fifty pounds. A little before three o’clock in the afternoon, a Mr. Allen was passing along on the pavement, when one of the bundles was thrown out by Hutchinson, and the warning given by Koochogey so late, that the bundle came within a foot or two of Mr. Allen. A few minutes after, Charles S. Boyd came from his store, No. 19 South Front street, a few doors above Coon’s store, going down Front street. He passed from the pavement to the middle of the street, as if intending to go to the west side, but when opposite the store of Young & Co., which was on the north side of an alley, six feet wide from curb to curb, Coon’s store being on the south side of this alley, he veered to the east side to go on the pavement in front of Coon’s store. He was very near-sighted and wore spectacles; he was walking rapidly and as he stepped on the curb of Coon’s pavement, he heard a cry, “ Look out! ” but it came too late; a bundle of tarpaulins, thrown or pushed out of the window by Hutchinson, struck him on the back and broke his spine, and he died on the following Friday. In the case of the then defendant, so far as necessary to be stated here, it was made to appear that the association was incorporated by the act of April 26, 1871, P. L. 59. As disclosed by the charter, the object of the corporation was “to protect and to save life and property in or contiguous to burning buildings, and to remove and take charge of such property, or any part thereof, when necessary; ” and to carry this object out, the said corporation had “power to provide suitable places for the transaction of its business, and also to provide a patrol of men and a competent person to act as superintendent, with suitable apparatus to save and preserve life or property at or after a fire; and, the better to enable them so to act with promptness and efficiency, full power was given to such superintendent and to such patrol to enter any building on fire, or which might be exposed to or in danger of damage from fire or water, and at once proceed to protect and endeavor to save the property therein, and to remove such property or any part thereof during or after such fire: nothing in this act, however, shall warrant an interference with the orders of the chief engineer of the Fire Department in reference to the action of the firemen in their duties in extinguishing a fire: Provided, That nothing therein contained shall be construed to affect or interfere with the power or duties of the officers of the Police Department of the city of Philadelphia, at fires occurring within the limits of the said city.” Evidence was introduced showing that the association was a purely voluntary association; that it had no capital stock, declared no dividends, nor did it have the means of making or dividing any profits among its members; that it was maintained by contributions or subscriptions made by a number of the insurance companies and insurance agents in the city, which were purely voluntary, there being no compulsory assessment, nor any suggestion as to the amount of contributions, nor were the contributions based upon the amount of business done by any company; that these funds and subscriptions were obtained by circulars sent out each year; that the patrol occupied a building where the chief engineer of the Fire Department made his headquarters, and had a fire engine, patrol wagons, fire extinguishers, tarpaulins and the usual accessories of a volunteer fire company; that their orders were to save all property or life in danger, and the patrol men did not know until after a fire whether there was an insurance on property saved or not; that they attended annually about eleven hundred fires, and saved uninsured property as well as that insured; and, as claimed by the defendant, there was no evidence tending to show that the contributing insurance companies were in any way benefited by the association, apart from the general public. At the close of the case upon, the evidence, the defendant submitted in writing twenty-six points for instructinos. The first ten of them presented, in as many shapes, the position that as a judgment had already been entered on June 12, 1885, against Hutchinson, one of the defendants, the court could not enter a second judgment in the same suit against The Fire Insurance Patrol, and the verdict should be for the defendant. The next ten points asked in as many forms the instruction that if the jury should find that the deceased was chargeable with contributory negligence, the plaintiffs were not entitled to recover. The remaining points, 21-26 inclusive, raised the question covered by the following point: 23. The defendant, The Fire Insurance Patrol of the city of Philadelphia, a corporation the object of winch is to protect and save life and property in or contiguous to burning buildings, and to remove and take charge of such property or any part thereof when necessary, having been shown to have no capital stock or means or provision for making profits, and deriving its funds solely from voluntary donations, and holding them in trust for the objects named in its charter, and exercising its corporate functions exclusively for the preservation of the life and property of the public, without discrimination of individuals or property whether insured or uninsured, and without the expectation or right on the part of those mediately or immediately interested in the corporation to receive compensation for these services, is a public charitable institution, and cannot be held liable in this suit for the negligence of the employees selected by it, unless it has been shown not to have exercised due care in their selection.3010 35 The court, Allison, P. J., after reviewing the facts disclosed by the-evidence, charged the jury as follows : The principle upon which the plaintiffs found their action is, as I have already said, the obligation of an employer to respond in damages for any injury which falls upon another person when the employee is following out the order of his employment by the person whom he is the servant of, and as whose servant at the time he is. It is in law the doctrine of respondeat superior. That is, the man who is above the employee is responsible for the torts of the person who is in his service and employment, if that servant, whilst in the service and employment of his master or employer and in the course of that employment, acts so negligently or wrongfully as to inflict injury and damage upon another. The law says that, in such a case, the employer is responsible for the wrongful and tortious acts of the servant, and it is grounded upon that principle that this action is sought to be maintained; a principle well established in our law, and one that must be accepted by the jury as governing and controlling the right of the plaintiffs to bring this suit, and the right of the plaintiffs to recover, if they have shown to you by the evidence in the cause that the injury which was inflicted upon Mr. Boyd and resulted in his death, was the result of the careless and negligent conduct of the servants and employees of the defendant while they were acting and serving in the course of their business as the employees of the defendant. Now, assuming the several matters to which I have referred as beyond dispute in the cause, what is the defence which the defendant sets up here to excuse it from responsibility to the claim which the plaintiffs make that it shall respond in damages, and in proper damages, for the loss which has fallen upon the plaintiffs ? There are several technical and legal grounds which have been presented upon the propriety of the evidence, which have already been really passed upon — the question as to whether this action, having been brought against two or more tort-feasors, and a judgment having been rendered as against one, the action can be maintained against the other tort-feasor. That is, one person, sued with others or another one or with two or more others, has a judgment entered against him; the allegation upon the part of the defendant is, that this judgment is conclusive as to the right to recover against the co-defendants. I think it is sufficient to say as to that proposition, which is embodied in quite a number of the points of the defendant which I have before me, that the Supreme Court have had that question before them, and they have sent it down to be tried again as against this very defendant, the Insurance Patrol of the city of Philadelphia. Independent of all other considerations, the fact that when this.case went to the Supreme Court they affirmed the judgment that was entered as against one of the defendants, sustained the action of the court in entering a nonsuit as to one other of the defendants, and sent the case down for trial again as to the defendant the Insurance Patrol with instructions that additional evidence should be given besides that which was given in the trial of the cause when it went up to the Supreme Court, in order to determine the character of this corporation — not only that which appeared upon the face of the charter and was disclosed by the charter, but by other evidence to show what was the true working and the real purpose and true object for which this corporation was chartered, so that the Supreme Court might pass upon the question which was raised before them, as to whether this was in truth and in fact, as it was contended, and as the court below thought, under the case as it then stood, a charily, holding that the property of a charity company could not be taken in execution to satisfy a judgment obtained against the employees of that charity — it is not necessary for us to go further upon this point of the case than to say that we are acting in obedience to and under the direction of the Supreme Court to try this case as against this Insurance Patrol, and we are doing nothing but obeying the proper order of that court, and could do nothing else; it would be an improper thing not to go on and try the case against this defendant. The object of the Supreme Court in sending it- down to us, as I have said, was for the purpose of obtaining further information as to what was the real and true character and proper workings of this corporation known as the Insurance Patrol of the City of Philadelphia. Those objections, founded upon what is supposed to be the conclusive effect of the judgment entered, may be regarded as out of the case. I shall negative all the points which have been presented by counsel for the defendant under that head. I believe they are ten in number. I say to the jury that they have nothing to do with the case as it now stands before you. There are other grounds of exception to the right of the plaintiffs upon which it is objected that the plaintiffs ought not to recover, which take the ground that this corporation is a charity and that there can be no recovery against it as a charity. When that question was before the court upon the case as it then stood, the only evidence as to the character of the corporation being tbe charter itself, that was all the evidence which the jury and the court had before it at that time, and the court entered a nonsuit as to these defendants upon that ground. But we have a very different case before us now. We have not only the charter, but we have the evidence which has been presented to the jury showing how this organization called the Insurance Patrol of Philadelphia came into existence in the first place. It was as a voluntary association together by the representatives of the fire insurance companies of the city of Philadelphia. The object being, as they said, to preserve and protect life when in danger by fire, and also to protect property when in danger by conflagration. [That corporation was afterward incorporated, and the evidence upon which the plaintiffs rely now as having established clearly that this is in the eye of the law not a charity, at least not such a charity as will protect it from responsibility for the acts of its agents, has been given to the jury with very considerable detail. The result of that testimony, it may be briefly stated, has been to show that the main object for which this association was originally formed, the main object for which it was afterwards incorporated, the main object it has in view in continuing its existence from year to year, is to benefit in a pecuniary point of view the insurance companies who contribute and thereby become members of the corporation, who contribute to the support of this Insurance Patrol. There can be no question under this testimony, if it is believed by the jury — and it is the testimony of the defendants themselves — -but that this is the principal object which these defendants have in view in carrying on the operations of this Insurance Patrol. They send out their agents, who go to fires and who protect property as far as they are able to protect it. They are entitled to do just what they undertake to do. That is, to protect or to save life and to protect property; but they are in subordination, so far as their own actions at fires are concerned, to the Fire Department of the city of Philadelphia. It does not alter the case that this Insurance Patrol and the Fire Department of the city of Philadelphia, as a rule, have worked in harmony, and perhaps have always done so, in the extinguishment of fires. The fact remains that by the charter itself this organization or this corporation is put aside when the authorities of the Fire Department of the city undertake to exercise authority. Then it is the duty of tins corporation to stand aside. They cannot in any way interfere with the orders or with the directions of the chief engineer or fire marshal of the city of Philadelphia. So that it does not at all alter the character' of this corporation, that their object is to save property and to save life. I mean so far as this case is concerned. I take it that there can be no charity such as would exempt it from liability to answer for the wrongful acts of its servants, except that which is a pure and simple charity. Nor do I think that it makes any difference whether this pecuniary benefit received by the parties who claim to be protected under this principle of law is a direct or indirect benefit.] a There is no doubt about the fact under this evidence that there is no corporate stock in this association. There are no profits and no dividends distributed among the corporators of this Insurance Patrol; but according to the testimony of several of the witnesses, the great and principal object for which it exists is, that it may benefit pecuniarily the insurance companies who, by their contributions, support it and keep it in existence. It seems to me that whenever a corporation, claiming to be a charity, puts itself in the position before the law of saying that, however commendatory the saving of life and property may be, yet that great object of its existence is to make money for some persons, and that they are to receive a profit and benefit growing out of the operations of that corporation, whether it be directly or indirectly, that moment all claim to its right to be a charity, such as the law may possibly protect, passes out of the case. That is the condition in which, if you believe this evidence, tins corporation stands before you to-day. Therefore, upon all the points upon which I have been asked to charge you in regard to this being a charity, and therefore not responsible for the acts of its servants, I shall answer them in the negative. I think, when it is shown that this organization is an organization really to bring pecuniary benefit into the pockets of any person at all, that being one of the objects according to the testimony of several of the witnesses, and the principal object for which it exists, that that moment its entire right to claim to stand as a charity is at an end. ■ Considering those questions out of the way, what remains to be determined by tbe jury? It is alleged upon the part of the defendants that Mr. Boyd in part brought his death upon himself — that he contributed to bring it upon himself. The principle of law is that where one is injured by the negligence or wrongful act of another, if that other person upon whom the injury falls acts himself negligently and carelessly so that his negligence and carelessness contributes to bring the injury upon himself, he defeats his right to recover as against the party who is sued for having inflicted injury or damage upon him; and the contention on the part of the defendant here is that, according to the evidence in this case, the jury ought to find that Mr. Boyd was guilty of contributory negligence, and therefore that he cannot recover. [The remaining part of the charge was in answer to the points as to contributory negligence and upon the subject of damages.] The verdict of the jury was in favor of the plaintiffs for 839,000. On April 29, 1887, a motion for a new trial was made, and pending this motion, on April 30th, a rule was taken upon the defendant to show cause why the judgment of June 12, 1885, against Hutchinson, should not be stricken off, which rule on May 14, 1887, was made absolute; but on the same day a rule was granted upon the plaintiffs to show cause why judgment should not be again entered upon the verdict against Hutchinson, the jury fee having been paid. On June 1, 1887, the plaintiffs remitted all the interest upon the verdict rendered January 28, 1885, against Hutchinson, and all the verdict rendered on April 27, 1887, against The Fire Insurance Patrol, over the sum of f25,000. The same day the rule upon the plaintiffs of May 14, 1887 was made absolute, the jury fee paid on both verdicts by the plaintiffs and judgment entered thereon. Then the defendant, The Fire Insurance Patrol, took this writ, filing forty-two specifications of error, of which were • 13. The court below erred in refusing to affirm the following point presented by the defendant for the court to charge the jury upon: “ 3. This being a joint suit against three joint tortfeasors for a joint tort, and a judgment having been already entered in the said suit on the issue joined in the said suit against Hutchinson, one of the defendants, this court cannot enter now a legal judgment against the present defendant, The Fire Insurance Patrol of Philadelphia, on the facts found by the jury in the present case, and the jury must find for the defendant.” Answer: I negative this point. 30-35. The refusal of defendant’s points.30 t0 35