122 Pa.

Volume 122 — Pennsylvania State Reports

62 opinions

122 Pa. 1Brockley v. Brockley (1888)
ERROR TO THE COURT OF COMMON PLEAS OE LANCASTER COUNTY. No. 186 January Term 1888, Sup. Ct.; court below, No 142 April Term 1885. On April 17, 1885, an appeal was filed by the defendant from the judgment of a justice of the peace in favor of Bernard Brockley against John P. Brockley, on April 10, 1885, for $93.08. The defendant pleaded, non assumpsit, payment, payment with leave and set-off. At the trial on August 23, 1887, Bernard Brockley, the plaintiff, testified in substance that of an indebtedness of $900 due from his brother John P. Brockley, the defendant, in September, 1883, all had been paid but $200, when he met the defendant at Los Angeles in California, and was there paid by him $130, leaving a balance unpaid of $70. On cross-examination, he stated that about December 15, 1884, he had brought a suit against his brother before a magistrate in Los Angeles, having a Mr. Clark, as his attorney; that two days after the suit was brought, his brother came to him and said: “ What did you do that for ? I have never been sued in my life. I said, ‘ I done it for the reason to get my money.’ He said he hadn’t the money now, but he would give it to me if I would withdraw the suit. I said, I have nothing more to do with it: I said Mr. Clark was my lawyer; I think that was the name. He is attending to it for me. Then he managed to fish out of his pocket $130; and $30 of that belonged to the lawyers for fees and expenses. After I got that money, he told me he would pay me the balance; he expected $1,000 through Reed & McGrann, a bank in this town; he told me he would pay me the balance then; and he has not paid me a cent since.” In his case in chief, the deposition of the defendant, taken in Los Angeles, Cal., was read in evidence, from which it appeared that the suit by the plaintiff against the defendant before the Los Angeles magistrate, in which the plaintiff was represented by an attorney, Mr. W. H. Clark, had resulted in a compromise, as claimed by the defendant, evidenced by the following papers proved and attached to the deposition: Bernard Brockley In the Justice’s Court for Los An- v. geles township. John P. Brockley It is agreed that if defendant in above ease shall pay the sum of One Hundred and Thirty Dollars ($130) on or before December 20, 1884, then said case shall be dismissed. W. H. CLARK, Attorney for Plaintiff. Bernard Brockley Y. John P. Brockley. December 19, 1884. Received of John P. Brockley, the above named defendant, One Hundred and Thirty Dollars ($130), in settlement of said case. And it is hereby agreed that said action shall be dismissed, and no other claims. W. H. CLARK, Attorney for Plaintiff. The defendant further testified that the papers were made as a final settlement of all differences between the plaintiff and himself; that Mr. W. H. Clark, the plaintiff’s attorney, was paid for his services in the matter in the presence of the defendant. In his rebuttal case, the plaintiff testified, inter alia, that he never saw the said papers until they were produced in court; that his attorney may have given them, but he knew nothing of it. The court, Patterson, J., after briefly referring to the nature of the action, charged the jury: Then the question you will have to determine is this-: Has that $900 been paid? The plaintiff in his testimony before you says it has not all been paid; that all he received was $880 of the $900. They speak of a suit in California, about which there is no dispute, in respect to which they both agree that the plaintiff sued his brother in California, but it was not terminated by suit, and there are submitted receipts and papers that were given by the counsel representing the plaintiff in this suit, and his action would be the action of the plaintiff himself. One of these receipts reads as follows: “ It is agreed that if the defendant in above case shall pay the sum of $130 on or before September 20, 1884, then this suit shall be dismissed.” [Well, that is not a receipt in full. It is only agreed to be dismissed.] 1 Then, there is another paper in which the same party, through his counsel, gave a receipt which is a little more positive: “Received $130, in settlement of said case. And it is hereby agreed that said action shall be dismissed, and no other claims,” etc. Now, that is equivocal, to say the least. And this same attorney has given a receipt to the effect that, if that money was paid, he would dismiss the suit. Now, if you think that was a payment in full, it would include this payment. But that testimony of the defendant was taken by deposition in California, and it is liable to be contradicted by the plaintiff here. The plaintiff was called here, and he has a' right to be called, to contradict the testimony taken there, and he testifies that it was plainly understood that the suit was to be dismissed if he paid that much money, but it was not a final settlement of his claim; that he had sued for $200, and got $130. [Then the question is, from all this evidence, whether that was a settlement not only of the suit, but a settlement of the claim of the plaintiff. The plaintiff denies that, here, and his oath, therefore, stands against the oath of the defendant; the one stands against the other. It is for you to reconcile this testimony; but if you cannot reconcile it, you will say whom you will believe. If you believe the testimony of the. plaintiff, he is entitled to a verdict for $70, with interest.] 8 If you believe the testimony of the defendant, who says that it was a settlement in full of the whole claim here, then the plaintiff cannot recover.....Therefore, the whole case is for you to determine, and you will say whether this defendant should have the $70, or how much he should have, or whether he owes for the interest from the time of the last transaction. [It is a question of fact for you under the evidence. There is no law in the case.] 3 We may say this: when a man owes, money, he is bound to pay it, unless he proves he has paid it. We now submit the whole case to you, and ask you to bring in a verdict which will satisfy your own consciences and do justice to the parties. . The verdict of the jury was in favor of the plaintiff for $87.15. A rule for a new trial having been discharged, judgment was entered upon the verdict when the defendant caused this writ to be taken and assigned as error: 1-3. The parts of the charge embraced in [ ] 140 3
122 Pa. 7F. B. Fogel & Co. v. Brubaker (1888)
No. 311 January Term 1888, Sup. Ct.; court below, No. 57 October Term 1885, C. P. On October 19, 1885, an appeal was filed by the defendants from the judgment of a justice of the peace in favor of J. S. Brubaker against F. B. and R. J. Fogel, trading as F. B. Fogel & Co., for $195.43.
122 Pa. 17Best v. Baumgardner, Eberman & Co. (1888)
ERROR TO THE COURT OE COMMON PLEAS OE LANCASTER COUNTY. No. 418 January Term 1888, Sup. Ct.; court below, No. 34 March Term 1888, C. P. On January 26, 1888, a scire facias was issued upon a mechanics’ lien filed by Thomas Baumgardner and others, partners as Baumgardner, Eberman & Co. against John Best, owner or reputed owner, and Israel P. Mayer, contractor. With the praecipe, an affidavit of claim was filed, in which the sum of $260.25 was alleged to be due from the defendants, with interest from July 9, 1887. The claim was filed on December 8, 1887, for lumber and other materials, mill-work and hauling, furnished at the instance and request of said Israel P. Mayer for and about the erection of an addition to the dwelling-house of the owner or reputed owner, between May 16, 1887, and July 1, 1887, with bill of particulars attached. On February 7, 1887, John Best filed an affidavit of defence, in which it was averred: That he, the said John Best, is the owner of the land described in said lien filed and on which the addition to the building therein described was built and constructed; that the materials therein named and in the biE of particulars set forth, were furnished on the order of and to Israel P. Mayer, with whom he, the said John Best, had a contract to erect said addition for the sum of $560. That he paid the said Israel P. Mayer the said sum of $560, and $331.60, additional, for extra work and materials therefor, which was in full for all work and materials for said addition. That the said plaintiffs, or any or either of them, did not, at the time of furnishing said materials or for a long time thereafter, give notice to the said John Best, the owner of the said property, of their intention to file a lien for said materials furnished, as in said lien set forth, or to his agent Or to any one for him; and in fact no notice was given to or demand made from him until after he had paid the said Israel P. Mayer in fuE for all work done in and about said addition. On February 28,1887, judgment was taken against Israel P. Mayer, contractor, for $269.88, for want of appearance, and the same day the plaintiff entered a rule upon John Best, the owner, for judgment for want of sufficient affidavit of defence, and under the practice filed reasons, the material one of which was: 4. Said John Best having admitted in his affidavit of defence that he had a contract with Israel P. Mayer to erect said addition for five hundred and sixty dollars, the plaintiffs cannot be prejudiced by reason that notice was not given to said John Best at the time the materials were furnished, there being no law requiring such notice to be given to said defendant, John Best, when said contract was made for the erection of said addition, and there was no such law in existence until considerable of the material had been furnished. The rule for judgment having been argued, the court, Livin&stok, P. J., on March 28, 1888, filed the opinion and decree following: * -*■ * * Was it necessary that plaintiffs should have given him such notice, to enable them to file a valid lien in this case ? Mr. Best, in his affidavit of defence, does not deny that the materials specified in the bill of particulars filed with the lien, were furnished on the credit of, and were used in the erection and construction of the addition or building; that the prices were not proper, or that the building was commenced before or at the time of the purchase of and delivery of the material. Indeed, it is admitted that the plaintiffs so furnished the material and that it went into the addition or building. In support of his position, Mr. Best’s counsel cites Evans v. Montgomery, 4 W. & S. 218, to show that “The legislature may pass laws altering, modifying, or even taking away remedies for the recovery of debts, without incurring a violation of the provisions of the constitution, which forbid the passage of ex post facto laws, or laws impairing the obligation of contracts.” Also, the act of June 17, 1887, P. L. 413, § 2 of which declares that “ All buildings and machinery made liable to a mechanics’ lien by the laws of this commonwealth, to a contractor or material-man, for work done or materials furnished for or about the erection, construction or repairs thereof, shall also be hable to a mechanics’ lien for any work done on said building and machinery by any sub-contractor, mechanic or laborer. No material-man shall have a right to file .a lien, unless notice of the amount and character of such claim be given to the owner or reputed owner, his authorized agent or attorney, when the material is delivered on the premises, or within ten days thereafter: Provided, such sub-contractor, mechanic or laborer shall file his claim within sixty days, setting forth the nature of the work and when the same was done, in the proper county, as other mechanics’ liens are filed.” * Also, Roth v. Hobson, 21 W. N. 64, in which a mechanics’ lien was filed by plaintiffs as sub-contractors, for tin roofing, water conductors, etc., alleged to have been furnished to a building belonging to defendant Hobson, and for which defendant Hannum was contractor. The items in the bill of particulars bore date between August 20,1887, and October 21, 1887, and the lien was filed December 10,1887. There was no averment in the claim that notice had been given as required by the act of June 17, 1887. This case was clearly covered by the statute; the plaintiffs were sub-contractors, and the work was done and all materials furnished a considerable time after the passage of the act of June 15, 1887, and as the notice required by the act had not been given, the rule to strike off the hen ¿was very properly made absolute. In Pennsylvania, the “mechanics’ lien ” is of an arbitrary character; it requires no precise formula to be followed before it attaches, but attaches at once, binding the-'property from a designated event, the commencement of the building, and for a specified time. It is a constructive or secret lien in its commencement, and dates back. The act of June 16,1836, P. L. 695, directs tha| it shall have priority over every other incumbrance attaching after the commencement of the building, if filed within six months after the last work shall have been done, or materials furnished. What is to' be understood by the commencement of the building? The common understanding of the phrase is, that it is the first labor done on the ground which is made the foundation of the building, and which forms part of the work suitable and necessary for its construction. Mechanics’ liens commence at the date of the first stroke of the ax or spade used in making the house, without regard to the time of their being filed, or the doing of the work or furnishing materials, if filed within the statutory period. In the case before us, as was stated in the argument, all the material had been contracted for, and all except a few of the last items of the bill delivered at the building, prior to the passage of the act of June 17, 1887, and as the mechanics’ lien dates back to the commencement of the building, it had attached under the law, prior to the passage of the act requiring notice to be given to the owner, and notice was not in this case required or necessary, and therefore, the affidavit of defence filed is insufficient, and judgment must be entered for plaintiffs. We accordingly, now, enter judgment for plaintiffs, for the amount of the claim filed, with interest, to wit, $270.21. Thereupon the defendant took this writ and assigned as error the entry of judgment in favor of the plaintiffs.
122 Pa. 25Freedman v. Morrow Shoe Mfg. Co. (1888)
If, after a sale and delivery of goods to the buyer, the seller refuse to rescind and the goods are levied upon in the possession of the buyer at the suit of the buyer’s creditor, the seller may not then assert title in an interpleader.
122 Pa. 31Herr v. Herr (1888)
FROM THE DECREE OE THE COURT OE COMMON PLEAS OE LANCASTER COUNTY. No. 38 July Term 1888, Sup. Ct.; court below, No. 28 October Term 1886, C. P. On October 20, 1886, a proceeding by breve de partitione facienda, wherein A. G. Herr et al. were plaintiffs and John G. IIerr et al. were defendants, had so advanced that an order was then made for the sale of the lands on a date certain, the purchase money to be payable on April 1, 1887. On April 23, 1887, the purchase money having been paid into court, Mr. H. O. Brubaker was appointed auditor to report a distribution thereof. By the second report of the auditor, filed March 19, 1888, it was shown that the controversy decided in this case arose out of the facts following: On August 22, 1884, the Lancaster County N. Bank discounted a note for $450, made by Benjamin G. Herr and indorsed by his uncle Henry F. Herr. On February 21, 1885, Benjamin G. Herr executed and delivered to Henry F. Herr a mortgage dated February 20th, for $4,000, upon the mortgagor’s interest in the lands afterwards the subject of the partition proceedings referred to; recorded. This mortgage was absolute on its face, but on the day of its delivery, the mortgagee executed and delivered to the mortgagor the following paper: “Whereas, Benjamin G. Herr has this day delivered to me a mortgage on his reversionary interest on certain real estate in West Hempfield Township for four thousand dollars; now this is to certify that I hold said mortgage as collateral security for my indorsement of a note of said Benjamin G. Herr for $1,050.00, dated this day and discounted for him by the First National Bank of Lancaster, and for my indorsements of any renewal or renewals of said note and also for any indorsement or indorsements of any other notes or renewal of such note or notes hereafter to be made by me; and I promise and agree to satisfy said mortgage whenever the said Benjamin G. Herr pays any and all notes upon which I may be liable as indorser for him, at his request.” The note of August 22, 1884, was still unpaid. It had been renewed at the Lancaster County N. Bank at regular intervals of thirty, sixty or ninety days, until May 26, 1887, when the last renewal note, dated April 23, 1887, was dishonored and notice of non-payment given to the indorser. On June 18, 1887, Henry F. Herr executed and delivered to the Lancaster County N. Bank an assignment, referring to the number and term of the said partition proceedings, of “all moneys coming to me in the above case, in part payment of notes made or indorsed by me and held by said bank,” and directed the prothonotary of the Court of Common Pleas to pay accordingly. On October 11, 1887, Benjamin G. Herr executed and delivered to Abraham G. Herr an assignment of all moneys to be awarded to him out of the fund for distribution. On and prior to November 16,1887, Henry F. Herr had paid to the First N. Bank of Lancaster notes upon which he was indorser for Benjamin G. Herr, as follows: Note, dated September 11, 1886, at 60 days, §1000.00 Note, dated October 4, 1887, at 90 days, 300.00 Note, dated September 15, 1887, at 60 days, 175.00 1475.00 After finding the facts above stated, the auditor’s report pro-ceded : The fund for distribution is comprised of the two shares of the said Abraham G. Herr and Benjamin G. Herr, each §1,750.86, total fund, §3,501.72. The Lancaster County National Bank claims, under the transfer from Henry F. Herr, the payment out of this fund of the note of §442.95, with protest and interest, as well as the notes paid by said Herr to the First National Bank. The counsel for Abraham G. Herr object to the payment of the note of §442.95, because the original note, of which the note in question is a renewal, antedates the mortgage of Benjamin G. Herr to Henry F. Herr, and the transfer. It is conceded that the notes paid to the First National Bank are covered by the mortgage and transfer. It will be seen that the Lancaster Co. N. Bank has no transfer of the mortgage. It has simply a transfer of Henry F. Herr’s interest in the fund for distribution at the former audit. This leads us to the question, whether Henry F. Herr held the mortgage as collateral security for any antecedent indorsements. The express terms of the contract between the mortgagor and the mortgagee, as explained by the certificate accompanying it of date February 21, 1885, is in these words: “I hold said mortgage as collateral security for my indorsement of a note of said Benjamin G. Herr for §1,050.00 dated this day and discounted for him by the First National Bank of Lancaster, and for my indorsement of any renewal or renewals of said note and also for any indorsement or indorsements of any other notes or renewals of such note or notes hereafter to be made by me.” It expressly refers to the note indorsed by the mortgagee on that date, and to future indorsements by him. The note in question was dated August 22, 1884, five months prior to the date of the mortgage. The main question in this case, therefore, seems to be, are the renewals of this note covered by the contract above referred to by the auditor? Again, we refer to the terms of the contract for answer, and find that the indorsements are limited to indorsements of “notes or renewals of such notes hereafter to be made by me.” There is no ambiguity apparent on the face of the instrument. The language is plain and the subject matter clearly expressed. No testimony has been produced, nor attempt made to prove that there was either a mistake or fraud on the part of either of the original parties to the contract. What interest, therefore, has the bank, the transferee of Henry F. Herr’s interest, in the fund ? Can there be but one reply to this question ? The stream cannot run higher than its source. The bank, in the opinion of the auditor, must stand or fall by the title of its grantor. If this view is correct, the bank-is not entitled to payment of the note of $442.95 out of the fund for distribution. It can hardly be necessary, therefore, to refer- to the well-established principle, that a creditor talcing a chose in action as collateral security for a pre-existing debt is not a purchaser for value. The case of Ashton’s Appeal, 73 Pa. 162, and authorities therein cited by the court, clearly establishes tins rule. Nor is it necessary to consider the question raised by the adverse counsel to this claim, that the renewal of a note does not renew the consideration. To the distribution reported, the Lancaster Co. N. Bank excepted that the auditor erred in rejecting the claim for payment of the note of April 23, 1887, maturing May 26, Í887. On April 14,1888, the court, Livingston, P. J., dismissed said exception and confirmed the report of the auditor. Thereupon the exceptant took this appeal and assigned the order dismissing the exception, etc., as error.
122 Pa. 37Farmers Mut. Insurance v. New Holland Turnpike Co. (1888)
ERROR TO THE COURT OF COMMON FLEAS OF LANCASTER COUNTY. No. 87 January Term 1888, Sup. Ct.; court below, No. 35 June Term 1883,' G. P. On May 25,1883, an action of covenant was brought by the New Holland Turnpike Co. against The Farmers Mutual Insurance Company, of Lancaster county, to recover upon a policy of insurance for $1,000, dated January 20, 1871, upon the bridge over Conestoga creek, where the said road crosses the creek, on the line between East Lampeter and Manlieim townships. The defendant pleaded, covenants performed, absque hoc. On December 23, 1886, Mr. A. F. Schenck, on behalf of the commissioners of Lancaster county, moved that the county of Lancaster be allowed to intervene in the case as a claimant. Objected to by the defendant. Objection overruled; motion allowed.10 At the trial on October 17, 1887, the following facts appeared: The bridge in question was erected by Christian Binkley, in 1777 or 1778, as a private enterprise, and upon his own lands. On June 18, 1801, by deed duly recorded, Binkley conveyed the land on which the bridge stood and one perch in extent of land around it, to Martin Myer, Jacob Grryder, and others, in trust for the public use and benefit of the county of Lancaster, and as a free bridge forever. The New Holland Turnpike Road Company was incorporated by the act of March 20, 1810, 5 Sm. L. 160, and was authorized to establish a turnpike road, beginning at the Blue Ball tavern, on the Downingstown, Ephrata and Harrisburg turnpike, extending through New Holland to Binkley’s bridge; thence to the borough of Lancaster. Under its charter, the company organized and constructed a turnpike road from New Holland to the east end of Binkley’s bridge, and from the west end of Binkley’s bridge to Lancaster. By § 1, act of May 21,1857, P. L. 653, it was enacted “ That all bridges which have been or hereafter shall be erected or purchased at the expense in part or in whole of the county of Lancaster, and which are or shall be situated upon the route of any turnpike road, and used by the company owning such turnpike roatt, shall be kept in repair by the turnpike company upon whose road such .bridges are or shall be built and used.” The second section of the act contained further provisions enforcing the duty enjoined in the foregoing. The old bridge was destroyed by a flood in 1867, and in 1868 it was rebuilt at a cost of $16,500, of which sum the plaintiff contributed the one third, or $5,500. The company contributed to repairs occasionally, in the same proportion. In the application for the policy of insurance put in evidence, it is said: “ This bridge is about four miles from Lancaster, and about eight miles from New Holland, and was erected in the year 1868, at the expense partly of the county of Lancaster, and partly of The Lancaster & New Holland Turnpike Co.; insured for the benefit of said Lancaster & New Holland Turnpike Co., in the name of its President, Solomon Diller, at the sum of $4,000.” The bridge covered by the policy was destroyed by fire on November 25,1882. On May 12,1883, proceedings by mandamus were begun in the Court of Common Pleas of Lancaster county, to compel the county commissioners to rebuild the bridge. The cause reaching this court, it was held that the special act quoted, and others, were repealed by the general act of May 5, 1876, P. L. 112, that the bridge in question was a county bridge, and the judgment of the Court of Common Pleas awarding a peremptory mandamus was affirmed: Myers v. Commonwealth, 110 Pa. 217. Thereupon the county commissioners in 1885-6 erected a new bridge of iron, and wholly at the expense of the county. The plaintiff having given in evidence the policy, application, the assessments paid to the defendant company to the date of the loss and the destruction of the bridge, showed that it was again open for travel about April 1, 1886, and called James Ililler, the treasurer of the plaintiff company : Q. If you can, state what the losses in tolls to the New Holland Turnpike Co. were, during the time the bridge Avas down, as ascertained by comparison of three years before and after-wards ? Objected to. By the court: Objection overruled.4 Under this offer it Avas shoAvn that the tolls received by the plaintiff In 1880 were.....$5,949 39 In 1881 “......$5,610 21 In 1882 “.....$5,694 62 Total......$17,254 22 In 1883 .... $4,62108 In 1884 ..... 4,744 40 In 1885 .... 4,559 52 -$13,925 00 Loss claimed .... $3,329 22 The ease being closed on the evidence, the court, Patterson, J., charged the jury as follows: You have already heard that this suit is brought by The Ncav Holland Turnpike Road Company against the Farmers’ Mutual Insurance Company, of Lancaster county. It is a suit in debt, to recover, as the narr says, four thousand dollars which was insured in that company on the bridge mentioned in the evidence, and here called Binkley’s bridge. You have heard the evidence in regard to that; and you have the evidence before you that this plaintiff paid all the assessments assessed by that company upon it from the year 1871 up to the time of the burning of the bridge, which happened on November 25, 1882. The bridge was burned down on that day. The policy was given in evidence and it is not disputed that this company so issued it to the plaintiff in this case in the following language: The company say that they “ received from Solomon Diller, president of The New Holland Turnpike Company, the sum of one dollar, the amount of the premium for making the insurance on the bridge over the Conestoga creek where the said road crosses the creek, being on the line between East Lam-peter and Manheim townships, said bridge being 300 feet long and 16 feet on the floor, having two spans, each about 150 feet, double arch, covered with shingles, cost $16,500; to be insured in this company at the sum of $4,000; situated in the townships of East Lampeter and Manheim, amounting to the sum of $4,000 agreeably to the specifications on file in the office of the company.” And therefore, they bind themselves to pay the insured, their heirs, executors, and so forth, that sum. The court has held that the plaintiff here has shown an insurable interest, although it has no ownership in the bridge, legal ownership in the land upon which it was located; but [we hold that the plaintiff has an equitable interest which may be insured.] 8 That is a question of law for the court, — and if the court is wrong in regard to that, of course, the Supreme Court will put us right. . Now, if you believe this testimony, the testimony submitted by the plaintiff, because I will not repeat it, under the law the plaintiff is entitled to recover, and wfe say no more except what we say in regard to the points submitted. Each side here submitted one point to the court, which the court is always bound under the law to answer. The defendant’s point is as follows: It has not been proved or shown, nor has any evidence been given on the trial of the case, that the plaintiff liad any in* surable interest in the bridge mentioned in the policy in suit, and therefore, the plaintiff cannot recover for the destruction by fire of the said bridge. Answer: We deny that point. We refuse to affirm that point.8 The plaintiff’s point is as follows: The court is respectfully asked to charge the jury that, under the law and the evidence, the plaintiff is entitled to their verdict for the amount stipulated to be paid in the policy of insurance, on which this action is based, with interest from February 3, 1883, being 70 days after the burning of the said bridge; with interest from that date up to this date. Answer: Wo affirm that point, i f you believe the testimony of the plaintiff, and say to you, if you believe that, then under the law the plaintiff should have your verdict for that amount with interest from the time of the burning of the bridge, which they have mentioned was on November 25, 1882; from that time to the present time they are entitled to the interest, if they are entitled to the principal, less seventy days.1 With these remarks we will submit the case to you, and you will say how you find. The facts are hardly disputed, and it is a mere question of law, so that you will render your verdict in accordance with these instructions. The jury found in favor of the plaintiff and assessed the damages at $5,130. Judgment being entered, the defendant took this writ, and assigned as error: 1. The answer to the plaintiff’s point.1 2. The answer to the defendant’s point.8 3. The part of the charge embraced in [ ] 3 4. The admission of plaintiff’s offer.4 10. The allowance of the motion of the county of Lancaster to intervene as a claimant.10
122 Pa. 48Kilgore v. Smith (1888)
ERROR, TO THE COURT OF COMMON FLEAS OF YORK COUNTY. No. 422 January Term 1888, Sup. Ct.; court below, No. 18 April Term 1885, C. P. On April 10, 1885, an action of replevin was instituted by Robert Tynes Smith and William Wicks, trading as Smith & Wicks, against Samuel Kilgore, Samuel Kilgore & Co. and the Harford Transportation Co., for 1,103 cases of canned tomatoes and 900 cases of canned corn, of the value of 13,004.50. The return to the writ showed that Samuel Kilgore, on behalf of Samuel Kilgore & Co., claimed title to the goods and filed a bond duly executed; as to the Harford Transportation Co. the writ was returned n. e. i. The defendants served pleaded, non cepit and property. At the trial on March 8, 1888, the material facts were as follows : On February 17, 1883, the Northern Harford Packing Association was incorporated under the laws of Maryland, with the object and purpose of tlie packing, canning and sale of canned goods. The members of the association were persons and firms in the counties of Maryland and the adjoining counties of Pennsylvania, engaged in the canning of goods. Samuel Kilgore & Co. as a firm, became a member in Maryland on March 2, 1888. By the articles of association a separate account was to be kept with each member in which were to be entered all goods delivered by the member to the association for sale, and all supplies furnished by the association to the member, etc.; and it was provided that “No member of the company shall at any time on place pack any goods which shall not be under the control of the board of directors of this company; ” that “ all goods packed by the members of this company shall be subject to the control of the board of directors of this company and for sale in such manner as they may deem proper; ” that at«a stated time each year the directors of the association were to ascertain the average price obtained for canned goods sold by it, and then the value at such price of goods furnished by each member, when the association should pay to the member DO per cent of the amount so ascertained, first deducting the cost of all material supplied. In January 1885, the association became involved in a large indebtedness, among others, to Smith & Wicks, dealers in canned goods in Baltimore; and on January 6th, at a meeting of the directors at Delta, a Pennsylvania town on the Maryland line, a sale of all the goods of the association in bulk was authorized, and on January 10th, the association sold to Smith & Wicks by written contract, at 75 cts. per dozen, the entire lot of three pound tomatoes, Red Seal brand, then held unsold by the association, and embracing certain of the goods in dispute; and on January 31st, another sale was made by written contract to the plaintiffs of 100,000 cases of Red Seal corn, at 70 cts. per dozen, embracing others of the goods in disjmte. About the time of these purchases Smith & Wicks caused certain warehouses, where goods were stored, to be leased to third persons, and warehouse receipts to be issued for the goods; thus were the two warehouses of Samuel Kilgore & Co., in York county, leased to the Harford Transportation Co., also a Maryland corporation, which issued warehouse receipts for the goods stored therein, embracing the goods in dispute. Neither the Northern Harford Packing Association, nor the Harford Transportation Co., had filed in the office of the secretary of the commonwealth the statement, showing the title and object of the corporation, the location of its office or offices in Pennsylvania, and the name or names of its authorized agent or agents therein, in compliance with the provisions of the act qf April 22, 1874, P. L. 108. A part of the business of The Northern Harford Packing Association was transacted at Delta, York Co. After the contracts of sale to Smith & Wicks referred to, some of the goods in the defendants’ warehouses were shipped to Smith & Wicks, and no returns being received, further shipments were refused, when this suit was brought. In the admission of the evidence of title, various bills of exception were sealed in favor of the defendants, but the questions raised were substantially those raised upon exceptions to the charge to the jury, Gibson, P. J., which after reviewing the testimony proceeded: If you believe these facts as shown by the plaintiffs’ witnesses, the title to these canned goods replevied passed to Smith & Wicks, the plaintiffs, under the contract of sale, and they can recover in this case for the same, unless the defendants have a legal ground to resist the recovery. The goods were identified by a mark, a trade mark, which they called the Red Seal brand, and they were also identified by the warehouse receipts which were procured from the Harford Transportation Company, 2900 cases of Red Seal corn at the canning house and building at the barn, and 1700 cases of Red Seal tomatoes in the building north of the barn. [The defence is founded, first, upon the question of the right of a foreign corporation in tins state. It is alleged that the Northern Harford Packing Association, through whom the plaintiffs obtained title, was a Maryland corporation; in other words, a foreign corporation, doing business in the state of Pennsylvania without having complied with the provisions of the act of assembly relating to foreign corporations doing business in this commonwealth. But the supply of materials to a foreign corporation for the purposes of this organization, and the purchase of such in this state, is not a doing of business within the meaning of the act of assembly. On the othei hand, the defendants were members of the Maryland corporation residing in the state of Pennsylvania. If this Maryland corporation did not comply with the act of assembly, the question of law remains, whether these defendants can set up such a defence against the title of the plaintiffs, when the defendants are members of the corporation and were subject to its articles and by-laws. “No member shall at any time or place pack any goods which shall not be under the control of the board of directors of this company.” “All the goods packed by the members of this company shall be subject to the control of the board of directors of this company, and for sale in such manner as they deem proper.” In other words, whether a failure of the corporation to comply with the requirements of the act of assembly, and the prosecution of their business in the canning of goods in the state of Pennsylvania, and obtaining supplies for their trade from there, whether that is a doing of business within the state of Pennsylvania, within the meaning of the law which will render the contract of Smith & Wicks void. There seems to be nothing in the act of assembly, in my opinion, which will render such a contract void under the circumstances.] 10 Or, the question may be this: Whether the defendants, being resident in Pennsylvania, and manufacturing goods in Pennsylvania, under the terms of their association with the Maryland corporation, can avoid their own contract with the corporation, and thus render void the contract of the corporation with Smith & Wicks, and hold the goods against the plaintiffs in this writ. I must instruct you that they cannot do so and that the contract is not rendered void by the act of assembly. The defend ants’ own acts must estop them from such a defence. The case is one of ordinary title and ownership, though between persons of different sraies. And if you believe the testimony of the plaintiffs as to the sale of these goods, tne plaintiffs are entitled to the possession of them. The contract, under which the plaintiffs claim, was a Maryland contract, and if you believe the defendants held these materials or goods for the corporation and subject to its order, the fact of their being residents of Pennsylvania, and canning and packing their goods here, does not make void the contract between them and the Maryland corporation under the act of assembly, and they cannot set up the act of assembly as a defence, and thus avoid their own acts which induced the purchase by the plaintiffs, and retain this property from the plaintiffs to whom they as a part of the Maryland corporation sold them. But, the defendants set up .another defence, namely, that in the transactions between them and the corporation in the business of furnishing supplies, the percentage on the same and the dividend declared by the corporation on a settlement of accounts between them are unpaid, alleging that the corporation is largely indebted to them, and the corporation then had no claim upon them. It is alleged that after the contract with Smith & Wicks for the sale of all the canned goods in their possession, it was ready to prove that the corporation did no further business except disposing of some of the articles in their possession, that no dividend was paid after that, and that they paid no debts in the neighborhood, and that they were insolvent. It is alleged that by reason of this indebtedness of the corporation to them and their insolvency, they are justified in retaining the goods and in making a defence against the plaintiffs’ claim for these goods; that the plaintiffs, Smith & Wicks, could obtain no better title from the corporation, than the corporation itself had, and if the corporation under the circumstances had no claim upon them, the plaintiffs had none. I must instruct you that this is not correct. There can be no set-off in replevin, but if there is a charge or lien on the goods of the corporation, the defendants would be entitled to recoup the amount of that charge or lien against the plaintiffs’ claim to that extent, subject to any claims on.the part of the corporation. But whether there is such a charge or lien upon the goods in question, is to be determined by a consideration of the association of these defendants with the corporation. Article 13 of the by-laws provides that, “ The board of directors of this company shall on the first day of December of each year ascertain the average price obtained by them for all canned goods sold by them prior to that date.....And shall then pay to each member 90 per cent of the amount so ascertained as due him, first deducting therefrom the cost of all the materials, etc.....And the board of directors shall retain in the treasury of the company 10 per cent of the sales of all canned goods sold,” etc. By this it appears that on stated occasions the value of the canned goods furnished by each member of the company was ascertained, and the member after it was ascertained was to receive 90 per cent of that amount and the association retained 10 per cent. [After this sale to Smith & Wicks the defendants ascertained that the corporation was insolvent, and they retained the goods then in their possession on the ground that they could not be paid for the same, which meant of course this 90 per cent. But such an arrangement is subject to the claims of the creditors of the corporation. I use the language of a distinguished writer on corporations, which is appropriate: “ It was a regulation looking to the internal affairs of the company, to the rights of the stockholders among each other. These things are, even if they are provided for in the charter, mere contracts among the stockholders for the regulation of their rights to each other. They are contracts too, which any stockholder has a right to insist upon, even against every other; but if there be a dealing with third persons in which the stockholders acquiesce, or which they confirmed, they cannot plead when called upon to comply with their contract that it was ultra vires. The defendants cannot, therefore, set up any failure on the part of the corporation to pay them the amount due by the corporation on this arrangement between themselves:” Morawetz on Corporations, § 676.] 11 What 1 shall further instruct is contained in the plaintiffs’ points: 1. That under all,the evidence in this case the verdict of the jury should be for the plaintiff's, and the measure of damages to be found by the jury as stated by the court in its general charge. Answer: This point is affirmed. The measure of damages which the plaintiffs are entitled to is correctly stated in the 8th point which I shall read to you.ls • 8. The measure of damages in this case, is the value of the 1103 cases of canned tomatoes, and the 900 cases of canned corn, mentioned in the sheriff’s return to the writ issued in this case at the time of issuing the same, to wit: April 10,1885, less one per cent on the value of the price of the tomatoes as mentioned in the contract of January 10, 1885, less the sum of $69.65 the value of the damaged goods, as testified to by Charles R. MeConkey, together with interest at the rate of six per cent per annum upon the balance from the date of the issuing of the writ, to wit: April 10, 1885, to this date.13 The jury returned a verdict “in favor of the plaintiffs for the sum of $3,104.67 damages and costs of suit.” Judgment having been entered on the verdict, the defendants took this writ, assigning as error, inter alia: 10, 11. The parts of the charge embraced in [ J 10 11 12, 13. The answers to the plaintiffs’ points.13 13
122 Pa. 58Penn. R. v. Bell (1888)
ERROR TO THE COURT OR COMMON PLEAS OR LANCASTER COUNTY. ■ No. 185 July Term 1887, Sup. Ct.; court below, No. 28 December Term 1884, C. P. On December 1, 1884, an action in case was brought by Maria E. Bell against the Pennsylvania Railroad Company, to recover damages for injuries to her husband John Bell, resulting in his death, alleged to have been caused by the negligence of the defendant company. At the trial on April 23, 1887, the facts made to appear were in substance as follows : On Monday, January 21, 1884, John Bell, the plaintiff’s husband, and Robert Gibson, took the 9:10 p. M. train from Philadelphia to Lancaster, the place of their residence. They both had been drinking. The approach of the train to Lancaster was announced, and the conductor as he passed through the car spoke to Gibson who said he would get Bell off at the station. After stopping the usual time at Lancaster, the train passed on and the conductor found Bell and Gibson still in the cars. Gibson explained that when he had awakened Bell he got angry and that lie had not been able to get him off, when the conductor said he would let them off at Landisville. The train reached Landisville about 11:15 p. M. when Bell was removed from the train and carried to the platform in front of the station. Gibson got off himself, and the two were left there. They afterwards went into the waiting room. At Landisville the Reading & Columbia railroad crosses the Pennsylvania railroad at grade. The station building, used for both roads, stands in the angle south-east of the crossing, and is about 12 feet from the defendant company’s tracks, and about 24 feet from the tracks of the Reading & Columbia railroad. The space between the station building and the tracks of both roads is covered with planking. This planking on the south side of the defendant company’s tracks extends 393 feet west of the station door and 355 feet east of it. Beyond the crossing from the station and in the south-west angle of the crossing, stands a watch-box, which is 7 feet 2 in. from the defendant company’s tracks and 35 feet 5 in. from the station building. The defendant company’s road is a straight line for about 2400 feet west of the station and for some distance east of it. Opposite the watch-box was a signal light over the tracks, fifteen or twenty feet from the ground, showing either a red light or a white light. There were other lights about the watch-box and at the station building, and there was a little snow upon the ground. Bell and Gibson had been drinking in the waiting room, Bell being much under the influence of liquor; the operator spoke to them about it, and they went outside. When, about 11:30 p. M., the operator heard the approaching east-bound train, he looked out to the place where he had set the signal for the train to stop, and saw Bell and Gibson both on the platform. The whistle and the bell of the train were sounded; the headlight of .the locomotive threw the light 800 feet or more along the track, and the head-light was visible for more than 2300 feet from the station. The engineer saw the signal light and as he slowed up to stop, Bell and Gibson walked with linked arms westward from where they had been standing, and when they were at or near the Reading & Columbia tracks, they got close to the track upon which the train was approaching, and Bell was struck by a projecting part of the engine. The train stopped within about 20 feet from the place of the accident. Bell was taken to his home in a sleigh and died on February 7th following. The testimony as to whether or not the approaching train was seen or could have been seen, sufficiently appears in the Opinion of the Court. The court, Patteesoít, J., after reviewing the testimony charged the jury as follows: Now, gentlemen, these are facts for your consideration. [Was it the head-light just passing, shining into his face that blinded the man ?] 13 Was it the extreme darkness after the engine passed, or was it his condition, being drunk, that led him into a place of danger ? You must consider all these questions ; also, consider the testimony as to how much light there was on the plank or boardwalk to enable a passenger to see where he was going. We must now ask who, which party, John Bell or the Pennsylvania Railroad Co., or their agents or employees, was guilty of negligence, or was either or both of these parties guilty of negligence. If the facts show to your satisfaction that both parties were negligent, then there would be contributory negligence, and the plaintiff can’t recover. “Negligence is the absence of care (the want of care), according to the circumstances.” The question of negligence is a question of fact, and therefore .is properly left to the jury. We leave that question to you. You gentlemen must, from all the evidence in the case, find and determine whether or not there is negligence on the part of the railroad company. The testimony in this case is variable, it is contradictory; the facts are disputed, and the Supreme Court holds that where there is any evidence which alone would justify an inference of the disputed fact or facts, it must go to the jury, no matter how strong or persuasive may be the countervailing proof. The disputed facts in this case are, that there was no contributory negligence on the part of John Bell, and further that there was no negligence whatever on the part of the railroad company. Those facts are for you to determine, gentlemen, under all the evidence submitted to you. From all we have said, you may be satisfied that it is entirely right and competent for the defendant, the railroad company, to show the unfortunate victim’s negligence in putting himself in a place of danger. Has it been shown to your satisfaction that John Bell contributed to this accident, and to his injury and death which ensued ? If contributory negligence on the part of the plaintiff, that is John Bell, has been shown to your satisfaction, then this plaintiff cannot recover in this suit, and your verdict should be for the defendant. [If the evidence in the case satisfies you that the defendant, the railroad company, or its conductors and agents, have been guilty of negligence, such negligence under the peculiar circumstances developed by the evidence as to cause or contribute to this accident, then the plaintiff can recover, and your verdict should be in favor of the plaintiff.] 14 Now, you, gentlemen, are the body to fix as well the loss or amount of damage, as to determine the party which occasioned it; and if you find for the plaintiff, Maria E. Bell, we have only to say that the damages for death by negligence are the pecuniary loss sustained by the party entitled to maintain the action. The amount of damages is for the jury. We will now answer the. points submitted by the counsel and then leave the case with you. The defendant has requested the court to charge the jury: * •* » * •* * * * 4. It was the duty of John Bell to look out for the approaching train, and, if his eyes and ears were good, to see and hear it, and if he failed to do either, when the train was where it could be seen or heard, and if he failed to see the head-light of the locomotive, when it was in full view from the station and approaching the station, and if by reason of his failure to see or hear the approaching train, he was injured as the result of such failure, he was guilty of contributory negligence, whether he was sober or drunk, and no recovery could be had in the case by the plaintiff. Answer: We answer this point, qualified as follows: That it was his duty to look out for the expected train; the defendant’s agents having told him, they would return him to Lancaster — -to look, and see, and hear it, if his eyes and ears were good, and if he failed to see the head-light of the locomotive, if no object intervened between him and the train, and of that the jury must inquire and determine — if he failed to see and hear the approaching train, on accomit of his own carelessness and neglect, then if you find that the failure to see and hear the train contributed to negligence, for you alone are the judges of that, then, whether he was sober or drunk, no recovery can be had in this case by the plaintiff.9 5. There is no evidence in the case that John Bell either stopped, looked or listened for the approaching train, and no evidence that he used his senses, or made any effort to see or hear the approaching train; therefore the plaintiff has no cause of action, and there can be no recovery in this case by the plaintiff. Answer: We decline to affirm this point; the jury is to find and determine whether there is no evidence, and whether there is evidence, such as mentioned in the point.10 ******** The jury returned a verdict in favor of the plaintiff for $5,000. A rule for a new trial having been discharged, judg. ment was entered on the verdict, when the defendant took this writ assigning among other errors : 9,10. The answers to the defendant’s points.9 10 IB, 14. The parts of the charge embraced in [ ]13 14
122 Pa. 67Schwenk v. Kehler (1888)
ERROR TO THE COURT OE COMMON PLEAS OE NORTHUMBERLAND COUNTY. No. 130 January Term 1887, Sup. Ct.; court below, No. 250 September Term 1883, C. P. On July 25,1883, an action in case was begun by Charles Z. Kebler against William Schwenk, George Robertson and Jacob Geise, trading as Scliwenk, Robertson & Co., to recover damages for injuries to his minor son alleged to have boon the result of negligence on the part of the defendants. The defendants pleaded, not guilty. At the trial on November 8, 1886, the case presented was in outline as follows: In September, 1882, the plaintiff was employed at the Black Diamond colliery, operated by the defendants, and at his request two of his boys were employed at the same mines, one of whom, Daniel, was about 14 years of age. The plaintiff gave directions to the defendants when Daniel was employed that he was not to he put to work at more dangerous work than slate picking. After a short time at the mines, Daniel was sent out of the slate room to assist in hauling the cars convoying the dirt out upon the dump. His father learned of this and at once remonstrated with one of the defendant firm and requested that his boy be returned to the slate room. The partner said, “ all right,” and the boy was returned to his former employment. On September 12th, Mr. Robertson came into the slate room and directed the breaker-boss to send a boy out to assist with the dump-car. The boss ordered young Kehler out. The boy objected, and was told to see Mr. Robertson. He did not see Mr. Robertson, however, but proceeded to the work directed, and was so engaged during part of that day, and part of the next day. The car ran on an up grade to the dump, and was drawn by a mule hitched to it by a short chain hooked at the spreader and passing under the bottom of the car-box. To obtain a momentum which would carry the car to the breast of the dump, it was necessary that the mule should be driven rapidly with the load, and detached quickly at some distance from the end of the track. To detach the mule was the work assigned to young Kehler, and on account of his size, the only way he could do it, as was claimed, was to step in front of the moving car, detach the hook, when the mule would step to one side out of the way of the car. On the afternoon of September 13th, as he was in the act of detaching the mule in this manner he was caught by the car, thrown beneath it, and his right arm crushed so that it became necessary to amputate it near the shoulder. There was testimony from which it was claimed that the car-track was not in proper condition, thnt the appliances in use for detaching the mule from the car were unsafe and essentially unlike those in use at some other collieries in the vicinity. The plaintiff admitted he knew of Daniel’s employment with the dump-cars on the 12th, and was informed of it at dinner on the 13th, but as he had already retnonstrated before then he hesitated to do so again, and moreover, did not meet with any of the defendants. On the part of the defendants, testimony was introduced tending to show the plaintiff’s knowledge of his son’s dangerous employment with the dump-car, without objection; that the appliances were those ordinarily in use in collieries and were safe, and that it was unnecessary and negligent on the part of the boy to get in front of the car when detaching the mule. The facts disclosed by the evidence upon both sides sufficiently appear in the portions quoted from the charge to the jury, Rockefeller, P. J.: « * * * Sc- Sc- Sc- How, gentlemen of the jury, the evidence in the case shows that sometime prior to September 12, 1882, Daniel Kehler was employed by the three defendants, who were then in partnership, operating the Black Diamond colliery near Mt. Carmel, in this county; that he was a little over fourteen years of age at the time. The father seems to have been desirous of getting his sons employment at the defendants’ colliery for the reason that he could lift their pay with his own, all at the same place. With this end in view, he asked the defendants whether they had a place or would give his son employment at some safe business or work around the colliery. It was understood, as the plaintiff alleges, that his son Daniel was to work in the slate room picking slate. That was an employment that was usually performed by young boys and perhaps is not considered dangerous. Then, on this 12th day of September, the defendants, doubtless for some reason, found it necessary to have a boy go out on the dirt bank, the bank where the dirt and refuse matter from the breaker were deposited by means of dump-cars running over a railroad constructed for that purpose, the cars being drawn by mules. The plaintiff’s son Daniel was put out there to perform this work on this dirt bank and he performed it for several days. The exact number of days is not proven, but the plaintiff himself said several days, from three to five. The father of Daniel says that on one occasion he told one of the firm, Mr. Robertson, I believe, that he didn’t want his son to work at that kind of work, also stating that he considered it dangerous. Mr. Robertson then took the boy off and placed him back in the slate room. That was prior to the 12th of September. Then again, on the 12th of September, the boy was put out on the dirt bank and the plaintiff saw him there at work. He then had notice that the defendants were having his son perform work on this dirt bank He had a right, of course, to withdraw his son from such employment if he saw proper so to do, and not permit him to perform that kind of work. It seems that he did not on that day, or at any other time, notify the defendants that he was unwilling his boy should continue there performing that kind of work. Now, we think, gentlemen of the jury, it is a question of fact to be determined by you from this circumstance, although the plaintiff had previously requested the defendants to take his boy off the dirt bank and put him at another place, and they did so— whether the plaintiff assented to, or permitted the boy to work on that bank. The fact that he saw him there performing that kind of work and did not give the defendants notice that he did not want him to continue there, is evidence from which the jury is permitted to find the fact of permission or assent on the part of the father. In order to determine that question, you will take into consideration all the evidence bearing upon that point on both sides. He alleges that it was his intention to give notice; that he endeavored to find Mr. Robertson that day or the day of the accident and notify him that he was unwilling his boy should continue on the dirt bank; that he was told that Mr. Robertson was not about the colliery, but that he had taken his gun and gone out for rabbits. On the other hand, you have the testimony of Mr. Robertson that he had not gone away and that he was about the colliery; that he was in the blacksmith shop doing blacksmithing; that the persons around there all knew that he was there on that occasion. Thus you see, the evidence on that branch of the case is contradictory. If Kehler, the plaintiff, knew that his son was at work on the dirt bank, that he had been put there by the defendants and employed in that way, and did not give them notice, if he had an opportunity of giving them notice, then this is evidence of his permission or assent. Then, if you should come to the conclusion that the dirt dump was not properly furnished with hooks or appliances .that were reasonably safe and suitable for the performance of the work that the boy Kehler had to do, still, if the plaintiff knew his son was engaged there on the dirt banks, using the dirt dumps and still permitted or assented to his so working and using said dumps, he cannot recover in this case. It would be, we think, contributory negligence on his part if he assented or permitted his boy to be employed in the manner alleged, knowing, at the same time, that he was performing dangerous work..... The evidence shows, if you believe the testimony on the part of the plaintiff’s witnesses, that on September 12, 1882, for some reason plaintiff’s son was required, to go out upon the dirt bank of defendants and drive, or assist in unloading the dirt. [Mr. Robertson, who, it seems, was the person who had charge of the defendants’ business outside of its mines and about the colliery, went to the slate room where Edward Smith and the boys engaged in picking slate were, and told Mr. Smith that he should send a boy upon the dirt bank to assist in unloading the dirt. Mr. Smith then sent Daniel Kehler, the plaintiff’s son. Mr. Robertson may not have specified the person that he wanted sent, and from the evidence, if you believe it, he did not specify what boy Smith should send. But in pursuance of Mr. Robertson’s directions to send a boy out, Edward Smith did send out Daniel Kehler, and I do tint see any other way than to hold that the act of sending Daniel Kehler out on the dirt bank, under such circumstances, was the act of Mr. Robertson himself. We are of the opinion that the case should be treated in that way, the same as if Mr. Robertson himself had ordered young Kehler to go out upon the dirt bank. So that it is not, in my opinion, a case of negligence on the part of a fellow-servant.] 7 [There is one other matter to which I should, perhaps, allude, and that is, as to what took place between young Kehler and Edward Smith at that time, after Mr. Robertson had been to the slate room and made the request upon Smith to send a boy out. Smith then told Kehler, the plaintiff’s son, that he should go out on the bank. Young Kehler hesitated, and remonstrated, perhaps, to some extent, you will recollect the evidence, stating that he did not want to go out. Mr. Smith, it seems, did not insist on his going out, but said that he should go and see Mr. Robertson. The boy, it seems, complained about the work being too hard, that it stiffened him up and the like. Mr. Robertson was about there, and the boy said himself in his evidence, that he supposed perhaps he might have gone up on the tip or somewhere about there, but instead of going to see Mr. Robertson, he went off and went on the dirt bank voluntarily. Now, gentlemen of the jury, taking into consideration all these facts and circumstances as detailed in evidence, as to the manner of young Kohler’s employment and the circumstances under which he went out upon the dirt bank to work, it seems to me, that the question to he determined is, after all, whether the defendants did adopt and maintain suitable instruments, in this case suitable cars, with proper or suitable appliances or hooks and means with which to carry on the business in which the plaintiff’s son was employed, so that he could perform his duty safely and without exposure to dangers which did not come within the reasonable scope of his employment.] 8 As I stated, if the machinery, that is, the cars, appliances and hooks, were of an ordinary character and such as could with reasonable care be used without danger, except such as was reasonably incident to the business or work to be per- ' formed, it was all that could be required. That is a question of fact which I think the jury must determine from all the evidence in the case. There is a great deal of testimony given on both sides in regard to the construction of the dump-cars, the chains, rings and hooks, and the manner in which they were constructed and used. The defendants contend that they were of an ordinary character, and such as could with reasonable care be used without danger, except such as was reasonably incident to the business. You have the testimony of a number of witnesses on both sides in regard to that matter. You will recollect that on the dump-car oh which young Kehler was employed there was a chain the length of which was stated variously by the witnesses. Some said three feet, some not so long and perhaps some longer. The chain extended out beyond the box some distance, and there was a ring in the end of it. Then there was a spreader attached to this chain by means of a hook, and a mule was attached to the spreader chains. It is alleged that that was the ordinary way of constructing cars and hooks for the purpose of taking dirt out from the collieries ; that that was the general manner of construction at all collieries in that neighborhood with some few exceptions; that there were some exceptional cases where there were side hooks used, but that was where there was no grade upon the dirt bank, and where locomotives were used to pull the cars out from the breaker to the place where they were switched off for a very short distance in order to be unloaded. They (the defendants) contend that cases of that kind were the exception and not the general rule; that that was not the usual and ordinary way of constructing dump-cars, their appliances, hooks, chains and so forth. They also say that the dump-cars in use on their dirt bank were not at all dangerous whom used by persons who exercised ordinary care. Now, the plaintiff, on the other hand, contends that the manner in which the rings and hooks were used to attach the mule to these cars which were to be taken out to the dumping place was dangerous ; that they were not of ordinary use, but were more than ordinarily dangerous, and could not be used without great danger. Now, gentlemen of the jury, I leave all these facts to be determined by you from the evidence in the case. If you find in favor of the plaintiff, that is to say, if you find that the defendants did not adopt and use suitable instruments and appliances to their cars, suitable rings and hooks with which to carry on business of dumping the dirt from the colliery, so that plaintiff’s son could perform those duties safely and without exposure to dangers which did not come within the reasonable scope of his employment, and that iu consequence thereof an injury was sustained by the plaintiff’s son, then you will determine what amount of damages the plaintiff is entitled to recover. But, as I have already stated, if this machinery, these hooks, rings and appliances to the dumps were of an ordinary character, and such as could with reasonable care be used without danger except such as was reasonably incident to the business, it was all that was required of the defendants and your verdict should be in their favor. -t- % Defendants’ counsel request the court to charge the jury as follows: 1. The plaintiff having shown by his own testimony that he hired his son to work for the defendants, and that he saw his son on September 12, 1882, engaged on the dump-cars, similar to those on which ho himself was working that day, and that he did not notify defendants, or either of them, or their foreman, of his unwillingness to have his son work in that position, he thereby assented to his employment in the business he was engaged in at the time of the injury, and cannot recover. Answer: Under the evidence in the case, 1 leave it to the jury to determine whether the plaintiff assented to his son’s employment in the business he was engaged, in at the time of the injury, and I refer you to what I have said in the general charge on this subject. If he did so assent he cannot recover.1 2. That the plaintiff having hired his son to the defendants to work at this colliery, and having testified that he knew, or believed that the work on the dump-cars was dangerous, and protested against his future service thereon, in pursuance of which protest the defendants removed his son to work in the breaker, yet having shown that he saw his son working again on the dump-cars on September 12,1882, and permitted him to continue working, he was guilty of contributory negligence and cannot recover, and the verdict must be for the defendants. Answer: If the plaintiff, knowing that the work on the dump-car was dangerous, permitted his son to continue working on the same, he was guilty of contributory negligence and I charge you as requested, but I refer you to the general charge.8 The jury returned a verdict in favor of the plaintiff for $500. Judgment being entered, the defendants took this writ and assigned as error, inter alia: 1, 2. The answers to defendants’ 1st and 2d points.1 8 7, 8. The parts of the charge embraced in [ ] 7 8
122 Pa. 78Kulp v. Bowen (1888)
No. 404 January Term 1887, Sup. Ct.; court below, No. 8 September Term 1885, C. P. On July 24, 1885, the defendants appeared to an action in debt sur estrepement bond brought by Samuel Bowen, Sylvester Bowen and Frederick Kline against Darlington R. Kulp, Curtis D. McWilliams, William C. McConnell, Eli Keeler and John Hass.
122 Pa. 88Minick v. Sausaman (1888)
FROM THE DECREE OE THE COURT OE COMMON PLEAS OE PERRY COUNTY. No. 167 July Term 1887, Sup. Ct.; court below, Fieri Facias No. 21 November Term 1885, C. P. On August 27, 1885, W. H. Minick held two judgments against J. W. Sausaman, the first liens upon certain real estate, and standing thus: No. 167 April Term 1882, .... $650.00. No. 212 April Term 1885, .... 898.50. On the date referred to, he.issued a fieri facias upon the first judgment to No. 50 November Term 1885, and the same day an execution attachment upon the same judgment to No. 31 November Term 1885. The attachment was served as the writ required upon George Hoobaugh, executor of George Sausaman, as garnishee. On October 14, 1885, Hoobaugh filed ail answer to the attachment admitting funds to the amount of about $90 in his hands, the judgment defendant's interest in the estate of George Sausaman, deceased, and subject to the attachment, but averring that the amount so subject could not be accurately ascertained until the garnishee’s final account as executor had been settled and confirmed. On November 12,1885, the property of the judgment defendant was sold upon the fieri facias referred to, and out of the proceeds of sale $700.14 was appropriated by the sheriff and received by the judgment plaintiff in full of the debt, interest and docket fee upon No. 167 April Term 1882. After payment of the costs on said judgment, including the costs on the execution attachment, there remained of the proceeds the sum of $265.01, which was appropriated by the sheriff and paid to the judgment plaintiff upon No. 212 April Term 1885. On April 27, 1886, Hoobaugh, as executor of George Sausaman, filed a final account which as confirmed on June 1, 1886, showed a balance due the estate, of which the share of J. W. Sausaman-was $119.14. On the same day the account was confirmed, Minick’s attorney moved the Court of Common Pleas to enter judgment against the garnishee upon his answer of October 14, 1885, to the execution attachment. Objection being made on behalf of J. W. Sausaman, that the judgment had been paid in full out of the proceeds of the sale of the debtor’s property, the motion was continued. On June 10, 1886, Minick caused to be issued to No. 29 August Term 1886, an execution attachment upon his second judgment, No. 212 April Term 1885, and had service made upon Hoobaugh as executor of George Sausaman, deceased. To this writ, on June 14, 1886, Hoobaugh made answer in substance that after the confirmation of his account, being advised that the judgment upon which the first execution attachment had issued had been fully paid and discharged, he paid to J. W. Sausaman his distributive share in the balance in his hand in full, and then had in his hands no moneys due to him. Thereupon Minick presented a petition setting forth, in substance, the facts above stated, and prayed that judgment be entered against the garnishee, in the second execution attachment to No. 29 August 1886, and for further relief. The garnishee made answer submitting to the judgment of the court. On June 7, 1887, the cause having been argued, the court, Babbtett, P. J., filed an opinion, which after stating briefly' the facts, proceeded: The second attachment cannot be considered an abandonment of the first. It is not an alias issued on the same judgment, but an original attachment issued on the second and a different judgment. The first attachment has never been disposed of. It hound whatever was subject thereto in the hands of the garnishee, and his answer to the second attachment shows that there were in his hands $119.14 subject to the first. The payment of the first judgment out of the proceeds of the sheriff’s sale of defendant’s real estate discharged that judgment at law, but not in equity. “ Actual payment discharges a judgment at law, but not in equity, if justice requires the parties in interest to be restrained from alleging it, or insisting on their legal rights Fleming v. Beaver, 2 R. 128; Lathrop’s App., 1 Pa. 512; Yard v. Patton, 13 Pa. 286. We think it will hardly admit of a doubt, that if the second judgment had been held by a second plaintiff, he would have been entitled to demand that the fund subject to the first attachment be applied to the first judgment in relief of the second, or that he he subrogated to the rights and securities of the first plaintiff. It is said by Gibsobt, C. J., in Ramsey’s App., 2 W. 232: “But if there is any rule or principle of equity plainly, positively and incontrovertibly established on the basis of reason and authority, it is that he who may at law control the application of two or more funds, shall not be suffered to use his legal advantages in a way to exclude the demand of a fellow creditor, whose legal recourse is but to one of them.” In the case before us the plaintiff in the first judgment had the control of two funds, one in the hands of the garnishee and the other in the hands of the sheriff. The plaintiff in the second judgment (in the case supposed) had legal recourse only to the latter; he would have been entitled to claim such disposition of the attached fund as would extinguish, pro tanto, the defendant’s indebtedness and reduce his own judgment. Can it make any difference that the plaintiff in the two judgments is the same ? Shall the mere accident that the second lien creditor is the same as in the first judgment operate to defeat the collection of his debt? Surely it would be a grievous wrong, perpetrated in tlie name of justice and sanctioned by her ministers, if a defendant were permitted thus to put money in his pocket and defy his creditor! To permit this now to be done would work a serious injury to the plaintiff, originating in perhaps an undue anxiety on part of the court to prevent injustice to the garnishee or to the defendant. As the facts now appear they could, neither of them, have been injured; nor can they be injured now by entering a judgment against the garnishee on the first attachment. The defendant cannot be injured, because he is thus simply having discharged so much of his legal indebtedness. The garnishee cannot be legally injured, because he is but paying, in accordance with the directions of the law, money originally owing from him to the defendant, and which was attached in his hands and thereby became subject to the law’s final process. It would be without practical difference to the parties whether judgment be now entered on the first or second attachment. But we are of opinion that the fund in the hands of the garnishee was bound by the first attachment, and still so continues, notwithstanding the judgment upon which it issued may have been satisfied at law: Ege v. Koontz, 3 Pa. 109. It is the legal right of the plaintiff to collect his debt by one or more executions, and when effect has been given to both executions his claims against the defendant will not be Lilly paid, and we think regularity requires judgment to be entered on the first attachment and thus both attachments will be disposed of. And now June 7, 1887, judgment is entered against George Hoobaugh, executor of George Sausaman, on his answers filed as garnishee, in favor of the plaintiff in the attachment-execution, No. 21 November Term 1885, for the sum of $119.14, but to be applied when paid to the judgment No. 212 April Term 1885, as a credit thereon, less five dollars to be paid to counsel of garnishee, and in satisfaction of both attachment executions, No. 21 November Term 1885, and No. 29 August Term 1886; and when so paid the garnishee bo thereupon discharged as against the defendant as of the sum so attached and paid.1 The garnishee in the attachment then took this appeal and assigned as error the order entering judgment fqr the plaintiff.1
122 Pa. 95Appeal of Miller (1888)
FROM THE DECREE OF THE COURT OF COMMON PLEAS OF UNION COUNTY. No. 67 January Term 1888, Sup. Ct.: court below, Ley. Fa. No. 20 September Term 1886, C. P. In January, 1886, John F. Bilger, of Mifflinburg, died seised of a single parcel of real estate subject to liens of record. His widow, Sadie H. Bilger, made claim to the exemption under the act of April 14, 1851, P. L. 613, and the appraisers reporting that the real estate could not be divided so as to set apart -$300 in land, the court confirmed the report and decreed that the exemption claim should be charged upon the whole tract, under §§ 1 and 2, act of November 27,1865, P. L. (1866) 1227. On September 16, 1886, the real estate was sold at sheriff’s sale upon two writs of levari facias, one to No. 20 September 'Term 1886, sur judgment upon a mechanics’ lien in favor of Enoch Miller, aud one to No. 22 September Term 1886, sur judgment upon a mortgage executed by the deceased to Anna B. Bilger. Out of the fund realized by the sale, to wit, $660.99, the sum of $841.99 was paid out by the sheriff in satisfaction of the mortgage of Anna B. Bilger, and Mr. A. H. Bill was appointed auditor to report a distribution of the balance, to wit, $319. 01. On March 14, 1887, the auditor filed a report which ascertained the liens upon the land at the death of the owner to have record priority as follows, some of the amounts including interest: 1. Enoch Miller, mech. 1., filed July 22, 1884, $170.00 2. Bowes & Swineford, mech. 1., “ Dec. 11, 1884, 22.78 3. Anna B. Bilger, mortgage, “ April 29, 1884, 341.99 4. L. E. & A. W.Keyser, mortgage, “ June 19, 1885, 850.00 5. Geo. Rearick, mech. 1., “ July 14, 1885, 38.44 The report, so far as material to the case decided then proceeded : An inspection of the record of the mechanics’ hen filed by Enoch Miller shows that the first item of the bill of particulars is dated November 24, 1883. A like inspection of the mechanics’ hen of Bowes & Swineford shows the first item dated January 26, 1884. As no assault was made upon the integrity of the hens these dates must be taken as true, especially in the case of Enoch Miller, which has passed into judgment. There was no evidence as to the time of the commencement of the building other than the dates above mentioned contained in the bills of particulars filed. But this evidence was deemed sufficient in Denkle’s Est., 1 Pears. 213, to establish the fact that the building was commenced before the entry of a judgment......There are other cases to the same point. The auditor therefore finds as a fact that the building was commenced prior to the record of the mortgage of Anna B. Bilger and that the mechanics’ liens of Enoch Miller and Bowes & Swineford are the first hens of record on the property sold by the sheriff. Disposing thus, of preliminary questions, the main point in dispute is reached and a few general remarks are necessary in order to obtain a clear view of the case. If there were nothing to be considered except the liens remaining after the payment by the sheriff of the Bilger mortgage the distribution would be an easy matter, and would be as follows: The claim of the widow would take precedence of the mechanics’ liens, but as the widow could not take in preference to the Keyser mortgage the money due her would be appropriated to that mortgage, and as the aniount of that mortgage is sufficient to exhaust the fund after deducting co ds of audit, without appropriating to the mortgage the full aniount of $300, the distribution would be complete. But the auditor is unable to overlook the payment by the sheriff of the Bilger mortgage and its effect upon the rights of the parties in this distribution. Such payment is before him in the return offered in evidence to the writ of alias levari facias No. 20 September Term 1886, upon which the property was sold and the fund for distribution raised. At the time of such payment the claim of the widow had been adjudicated by the court; the mechanics’ liens of Enoch Miller and of Bowes & Swineford were the first liens of record, and entitled to be paid in preference to the Bilger mortgage, but by reason of the legal superiority of the widow’s claim over the mechanics’ liens and of its legal inferiority to the Bilger mortgage the mechanics’ liens were postponed and the money, which otherwise would have been paid in satisfaction of the mechanics’ liens was appropriated to the Bilger mortgage. The legal effect of this transaction in the view of the auditor is the real contention in this case. It is strongly urged that the transaction above detailed must be viewed in the same light as if the claim were for the exemption of $300 under the act of 1849. It is undoubtedly true that if such were the case the claim could be made available against the mechanics’ liens, notwithstanding the fact that the mortgage was superior to it. This rule seems to be firmly settled: Hill v. Johnston, 29 Pa. 362. And the principle was practically applied in Bower’s Appeal, 68 Pa. 126, where in the distribution the money was appropriated, first, to the mortgage, the last lien in order of priority, next to the debtor in satisfaction of his claim for exemption, and then to the first judgment lien, the first lien being a mortgage and not discharged by the sale. In other words, the debtor is not prejudiced in his exemption claim by the implied waiver of it in the execution of a mortgage, and the rule of distribution is different entirely from that applied to an express waiver by the debtor in the obligation or judgment. Is there any reason why this rule should not be applied to the claim of the widow under the act of 1851. It is an exemption of property precisely similar to that of the act of 1849. The method provided for ascertaining the property is similar, and it is to all intents and purposes an exemption of property to the value of $300 against the creditors of her husband’s estate. It has been distinctly held to be superior to mechanics’ liens, and while in this case it is unfortunate that the widow must meet another mortgage with sufficient capacity to exhaust her claim, in the next case she may only be compelled to meet ordinary liens which are not under the peculiar guardianship of the law, by which they become mere securities for money or deeds for the land, as the exigency of the particular case may seem to require. The auditor holds that the claim of the widow was not prejudiced by the payment by the sheriff of the Bilger mortgage and that she is entitled to present her claim in full. The result is the money must be distributed as heretofore stated, to wit: The mechanics’ liens being postponed by the widow’s claim, and the widow’s claim postponed by the Keyser mortgage, the Keyser mortgage must be first paid the money, and as the amount of it will absorb the whole fund no other direction for distribution is made. Exceptions in behalf of Enoch Miller, to the report of the auditor, after argument, were disposed of on September 17, 1887, by an opinion, Bucher, P. J., which after stating the facts, proceeded: This brings us to the main question, to wit: As the widow cannot take $300 exemption against either mortgage, but can as against the mechanics’ liens, is the fund to be appropriated just as if she had no claim whatever ? It is very clear that she can take no money whatever out of court until both mortgages are satisfied: Bower’s App., 68 Pa. 126 ; Thomas’s App., 69 Pa. 120; Hill v. Johnston, 29 Pa. 362; Kauffman’s App., 112 Pa. 645; Nerpel’s App., 91 Pa. 334; Conrad v. Building Association, 18 W. N. 133. If it is argued she is thus driven from the field, what has she to do with the appropriations ? Are the mortgage creditors to be preferred over the prior lien creditors, because their superior position accomplished the result ? Or are they substituted to her rights ? But this cannot be, as they have not acquired her rights; they only prevail because she is without right as against them. When she disappears, and neither side to the controversy represents her rights, the contest is simply one of priority between the remaining combatants. The situation of the latter is in no wise different from what it would be had the widow never claimed, or had died before her husband, and then, or in that case, no question would be raised as to the mechanics’ lien being prior and superior to the mortgages, and would take the fund, and only the surplus go to Anua B. Bilger’s mortgage as prior to the Keyser mortgage, and then the latter would get the balance, which it would consume without being paid in full. This is certainly the logical result of well-known legal principles, namely : “If a third incumbrance be superior to the first, but inferior to the second, yet as you could not prefer the third over the first without giving it preference over the second, the appropriation is made just as if the first was first, second next, and third last:” Wilcocks v. Wain, 10 S. & R. 380; M. & M. Bank v. Bank of Penn., 7 W. & S. 343; Tombs’ App., 9 Pa. 67 ; Loucheim’s App., 67 Pa. 53. Now these mortgages, which are the third and fourth liens, are preferred to the first and second liens and no one benefited except the mortgagees, and thus the first and second liens are postponed to their inferiors, Nos. 3 and 4. Unless it is res adjndicata this should not be done, — it is unjust. Bower’s App., 68 Pa. 126, is cited as aiithority for the position that the mortgages are first to be satisfied and then the widow’s exemption next. That case in a sense so decides, because there the mortgage was the first lien and judgments the second and third, and after paying the mortgage there was enough money left to pay the |300 exemption to the debtor, and still some left to go to the first judgment; but here the widow’s claim remained in the field, asserting itself, and the contest was not between the judgment creditors and the mortgage, but between the judgment creditors and the exemption claimant, who still was in position to drive back the former, although he had been displaced by the mortgage; whereas, in the case under consideration, the widow has disappeared, there being under no contingency any fund out of which she can receive anything. In Hill v. Johnston, 29 Pa. 362, the mortgage was the first lien, and when that was satisfied the debtor was allowed his exemption as against subsequent judgment creditors. If you take Kauffman’s App., 112 Pa. 645, there the decree of the Orphans’ Court wiped out the judgment liens, so that when the mortgagee came to sell, the liens were out of his way. The only answer to this reasoning is, that, were we to follow this logic and allow the mechanics’ lien to take the fund as against the mortgages, the same anomaly results that the argument has been attempting to demolish, namely: the inferior lien will prevail over the superior, in that the mechanics’ lien will then be preferred to the widow’s superior exemption, and thus in avoiding the rock of Scylla we fall into the whirlpool of Charybdis. We must take a new reckoning; and doubtless the learned auditor, seeing the dilemma, determined as he did, upon the military theory that the widow’s exemption had driven the mechanics’ liens from the field, and that until the widow’s claim is satisfied they cannot return, and the battle must go on between the forces remaining, the mortgages and the widow, and the former having vanished the latter, the spoils are secured, removed, and the field barren on the return of the mechanics’ liens. To hold otherwise would be an exception to a plain rule of distribution, namely: That where the fund is consumed wholly by the mortgages, so that in no event will the widow get anything, then, as between lien-creditors, priority alone determines the right. If it be said that this view really prefers the junior to the senior lien, we answer that with the junior mortgage lien removed or absent, the prior lien would get nothing anyway; so that it is the superior character of the mortgage which works the defeat of the widow; in fact, it fights the battle and conquers and is fairly entitled to the spoils...... We have now answered every exception substantially and they are all overruled and dismissed, and the report of the auditor confirmed absolutely. A decree of distribution having been made in accordance with the foregoing opinion, the exceptant took this appeal and assigned as error the decree dismissing his exceptions.
122 Pa. 107John v. John (1888)
No. 101 January Term 1888, Sup. Ct.; court below, No. 296 May Term-1888, C. P. On April 5,1883, an action in assumpsit was brought by Kersey T. John against Ulysses F. John, to recover one half of the commissions allowed in the settlement of their accounts as the executors of the will of tlioir father, Samuel John, deceased. The defendant pleaded, non assumpsit, payment, payment with leave.
122 Pa. 115County of Juniata v. McDonald (1888)
ERROR TO THE COURT OF COMMON PLEAS OF JUNIATA COUNTY. No. 122 January Term 1888, Sup. Ct.; court below, No. 4 April Term 1887, C. P. On February 10, 1887, an action of assumpsit was brought by J. Miller McDonald against the county of Juniata, to recover a reward offered for the capture of an escaped prisoner. The defendant pleaded, non assumpsit and payment with leave, etc. At the trial on September 10, 1887, it was made to appear, in substance, that on May 1, 1886, W. Josiah McMeen was convicted of murder in the first degree in the Court of Oyer and Terminer of Juniata county and was thereupon sentenced to be hanged in July, following. Pending an application to the Board of Pardons for the commutation of his sentence, he remained in confinement in the county prison at Mifflintown. On the night of November 14, 1886, he broke prison and escaped, with a colored man named Aaron Carter, awaiting trial on a charge of adultery. The next morning the county commissioners met and, after resolution passed, published the following offer: $400 REWARD ! The commissioners of Juniata county will pay for the capture and delivery of the above named W. Josiah McMeen to the jail of Juniata county the sum of $400. O. P. Barton, W. N. Sterrett, J. T. Dimm, Commissioners of Juniata County. On the evening of November 22d, in consequence of information received, sheriff Fowles, his deputy Lapp, with the plaintiff, found and arrested Carter at the house of his father, about six miles east of Mifflin. The plaintiff had been told of a remark made by one William Kauffman which indicated a friendly feeling towards McMeen, and on the way out to Carter’s, he repeated what he had heard to the sheriff. The next day sheriff Fowles, deputy Lapp, the plaintiff, and one Daniel Beashore went to the barn of William Kauffman, and found McMeen concealed in the straw-mow, when they arrested him and returned him to prison. The sheriff testified that he was led to go to Kauffman’s solely by the information he had received from the plaintiff. The facts stated appearing in the plaintiff’s case, William Kauffman was called in behalf of the defendant: Defendant’s counsel propose to show that the witness was at the barn; that the sheriff, deputy Lapp, Beashore and McDonald came there, and that the sheriff seemed to be in command of the party ; that he was riding with Hetrick, and the other three were riding in the carriage, and that there was nothing done until the sheriff came up, and when the sheriff came up he came over to the fence where witness was, and said, “We are searching some barns, and we thought we may as well search your barn as we go along.” Plaintiff’s counsel object because it is immaterial and irrelevant. By the court: Objection sustained; evidence rejected.8 The effect of the testimony on both sides, and the nature of the defence made, appear sufficiently in the charge to the jury, Barnett, P. J.: James Miller McDonald sues the county of Juniata to recover a reward offered for the apprehension of an escaped prisoner. It is admitted that William Josiah McMeen escaped from prison. It is admitted that a reward of $400 was offered for his recapture; and it is admitted that he was recaptured and returned to the jail of this county. The evidence shows that some four persons were present when the actual capture took place. The sheriff, his deputy, Mr. McDonald and Mr. Beashore were present, and the question is as to who was mainly instrumental in effecting this capture. The prisoner was in jail in the custody of the sheriff; it was his duty to keep him until legally removed; he escaped from jail, and when he did so it was the duty of the sheriff to have him recaptured and returned, if possible. If the sheriff himself and the deputy made the capture, or were mainly instrumental in effecting it, they simply discharged their duty and they would be entitled to no reward, and therefore no person would have earned this reward. [There were two other persons present who owed no special duty with regard to the recapture of this prisoner. It does not appear from the evidence that Mr. Beashore was present at the instance of Mr. McDonald or that he was invited by the sheriff, but it appears he was present at the invitation of Mr. Lapp, the deputy-sheriff.] 4 The sheriff testifies that on Monday evening, November 22, 1886, Squire McDonald, deputy Lapp and himself got into a two-horse carriage and went out to old Mr. Carter’s, and on the road going out they were talking about this matter, and Mr. McDonald told him ho had been with what was called Mr. Parker’s party to Henry Moist’s, and that he had a conversation with Henry Moist who asked him why they searched there and whether they blamed him with concealing McMeen. Henry Moist also stated that his feelings were against McMeen, but Mr. Moist said he had had a conversation with a party of men and one of them told him that he wouldn’t arrest McMeen if he did find him, but if ho had no overcoat he would give him his, and that man was William Kauffman ; and from that information Mr. Beashore, Mr. McDonald, the sheriff and deputy-sheriff proceeded to William Kauffman’s and effected the capture. Mr. McDonald also testifies that he had this conversation with Mr. Moist and was led from that conversation, in connection with other things that came to his knowledge, to believe this escaped prisoner was to be found in the barn of Mr. Kauffman, and he so informed the sheriff, and it was at his instance the party was organized and went and effected the capture. If this statement is the true one, if the jury can rely upon that statement as the very truth of the case, and believe that Mr. McDonald was the party who mainly and principally succeeded in making this escaped prisoner’s recapture, then he would be entitled to the reward offered by the commissioners for the recapture and the jury should find a verdict in his favor. [But it is contended on the part of the defendant that Mr. McDonald was not the one principally and mainly influential in effecting this capture, and it alleges that the sheriff was the one who succeeded in doing so and that the others were merely his assistants, and to sustain this they rely upon some contradictions and conflict in the testimony of some of the witnesses.] 5 They have called Mr. Henry Moist and he, while not positively denying the fact, testifies that he has no recollection of having had any such conversation with the plaintiff, in which he told him anything in regard to what Mr. Kauffman had said. Mr. Abraham Moist also denies that the occurrences took place at his barn, as they were testified to by the sheriff and Mr. McDonald. The latter stated that they had gone to Mr. Moist’s simply to satisfy the clamor of the public ; that they did not expect and did not believe that the prisoner was in the barn of Mr. Moist, but that simply because the people were urging them to go in search of the prisoner they went, in obedience to the clamor of the public, without any expectation or hope of finding him there, and they testify as to the circumstances and incidents attending their arrival at the barn and the conversation occurring between them and Mr. Moist. On the contrary Mr. Moist testifies that the sheriff and Mr. McDonald came there and the sheriff said to him, after trying to convince him that the prisoner was there, “We know that he is here and you may as well give him up,” and that Mr. McDonald also said, “We know he is here and you may as well give him up.” From this it is contended on the part of the defendant that there is a conflict in the testimony between Mr. Abraham Moist and the sheriff and Mr. McDonald. [It is also contended on the part of the defendant that, if the testimony of Mr. Daniel Beashore is relied upon, as the very truth of the case, it would go very far toward showing that, instead of the plaintiff being the one mainly and principally instrumental in effecting this capture, he was simply assisting the sheriff; that the sheriff was the principal; the organized party was under his control and management, and they were the assistants to obey his will. Mr. Beashore testifies that he was one of the party and that when they arrived at the Basin, adjoining this town, Mr. McDonald asked, “ Where shall we go ? ” and the sheriff said, “ To Kauffman’s barn! ” that the sheriff was riding with David Hetrick and that, when they were passing an old vacant house, Mr. Lapp asked the sheriff whether they should search this building, and the sheriff replied “No, go on to Kauffman’s barn!” If you should find that this was the fact it would be very strong evidence to indicate that it was the sheriff who was directing the manner in which this search should be made and the place to which their attention should be directed; because, if it be true that Mr. McDonald asked him in the first place where they shoidd go and the sheriff replied that they should go to Kauffman’s bam, it would undoubtedly be the sheriff who had the knowledge'of the locality and whereabouts of the prisoner, and he was the one who was directing and managing those who were in search of the prisoner; that Mr. McDonald was simply inquiring as to his duties and as to where he should go, being obedient to the commands and directions of the sheriff.] 6 . . . . Therefore, you will take into consideration the testimony of the sheriff, his deputy, Mr. Lapp, and Mr. McDonald, on the one side, as it is modified by the defendant’s witnesses on the other, and, after considering the whole testimony in the case and comparing it, ascertain for yourselves, where the weight or preponderance is to be found. If the plaintiff has satisfied your minds by the preponderance or weight of the evidence that he was mainly instrumental in effecting this recapture then you should find for him the amount offered by the commissioners, and, if you see proper, with interest from the date that the demand was made and refused by the commissioners; as to the question of interest you can do as you think right and proper. On the other hand, if the plaintiff has not so satisfied you that it was he that was mainly instrumental in effecting this capture, then you should find for the defendant. We submit it as a question of fact to you under all the evidence in the case to render such verdict as you think to be right and proper. If you believe that the plaintiff was mainly instrumental in effecting this recapture then find for the plaintiff, and if you find that he was not then find for the defendant. The jury returned a verdict for the plaintiff for $400. A rule for a new trial having been discharged, judgment was entered, when the defendant took this writ and assigned for error, inter, alia: 2. The refusal of defendant’s offer.8 4-6. The parts of the charge embraced in [] 4 40 6
122 Pa. 122Gudykunst v. Galloway & Meek (1888)
No. 46 July Term 1888, Sup. Ct.; court below, No. 82 September Term 1879, C. P. On September 2, 1879, an action of assumpsit was brought by John Galloway and R. C. Meek, trading as' Galloway & Meek, against E. S. Gudykunst, and Margaret Gudykunst, his wife, to recover the amount of an account for goods sold and delivered.
122 Pa. 128Hench v. Agricultural Ins. (1888)
error to the court oe common pleas of perry county. No. 77 July Term 1888, Sup. Ct.; court below, No. 12 November Term 1886, C. P. On August 19, 1886, a summons in debt was issued by B. A. Hench for the use of Emanuel Toomey, in so far as his interest may appear, against the Agricultural Insurance Co., of Water-town, N. Y., to recoyer upon a policy of insurance in $3,300, of which the sum of $500 was upon personal property, the remainder upon the dwelling and farm buildings. The pleadings did not appear upon the paper-books. The material facts appearing at the trial on January 21, 1888, were admitted to have been as follows : At the time the policy was issued, June 5, 1884, the plaintiff owned a farm upon which the insured buildings were erected, and against which there were judgment liens in favor of Emanuel Toomey to the amount of about $4,000. These liens were stated in the application for the policy, and it was directed that the loss if any should be payable to Emanuel Toomey, “ as his interest may appear.” The plaintiff was also indebted, when the policy issued, to Mrs. Ellen A. Clark, who held his note, with warrant of attorney, for $800. In March, 1885, Mrs. Clark, desiring to assist her husband in the purchase of a farm from David Kleekner, called upon the plaintiff for payment, but suggested that if he would see Kleokner the latter might take the plaintiff’s note for money and thus give him additional time to pay. Kleckner, on application made to him, agreed to take plaintiff’s note as cash, but said ho would enter judgment thereon unless protected by security. Then, on April 1, 1885, the plaintiff, in settlement of his indebtedness to Mrs. Clark, passed to Kleokner two notes, one for $898, with Robt. A. Clark as surety, and another for $450, with J. W. Grantt as surety. These notes contained warrants of attorney to enter judgment, and Kleokner accepted them, fully satisfied with the security given, and informed the plaintiff that he would not enter judgment on the notes. On April 27, 1885, without the plaintiff’s knowledge or any intimation to him, Kleokner caused judgment to be entered upon both notes, as liens upon the plaintiff’s farm. The plaintiff had no knowledge of the entry of these judgments until after a fire occurred on January 6, 1886, which destroyed his dwelling-house, insured at $800, and personal property, the agreed value ol: which was $100. The jury returned a verdict for the plaintiff for $997-40, subject to the judgment of the court upon questions reserved as to the effect of certain conditions in the policy, appearing in the opinion, filed on May 1, 1888, Baretistt, T. J.: By amicable arrangement between the parties the evidence in this case was submitted to a jury to assess the plaintiff’s damages, if in law he was entitled to recover, and the question of law was reserved by the court, whether under the uncontradicted facts in the case, the plaintiff was entitled to judgment. The undisputed facts, so far as it is material to state them in this opinion, are as follows: On June 5, 1884, Benjamin A. Hench obtained a policy of insurance for three years from the defendant, of $800 on his dwelling-house and $200 on household furniture while therein; of $100 on wash-house; of $900 on barn No. 1, and $750 on produce while therein; of $50 on corn-barn and wagon-house ; and of $500 on horses; aggregating a total of $8,800; “loss if any payable to Emanuel Toomey as his interest may appear.” The dwelling-house was destroyed by fire on January 6,1886, and the loss sustained by the plaintiff amounted to $997.40, as ascertained by the verdict of the jury. The policy contains the following provisions : “ If any other insurance has been or shall hereafter be made upon the property hereby insured or any part thereof, or any interest therein, whether such other insurance is valid or invalid;..... or if the property, either real or personal, or any part thereof, shall become incumbered by mortgage, judgment or otherwise ;.....then, and in every such case, and in either of said events, this entire policy and every part thereof, shall be null and void, unless the written consent of the company at the Baltimore office is obtained. In case such consent is applied for and refused, the company will pay to the assured the unearned premium.” Another provision, although not material in the view we take of this case, is the following: “No agent is permitted to give the consent of the company in any other case required by the provisions of this policy, or to waive any stipulation or condition contained therein; but in all cases where the consent of the company is required by this policy other than consent to the assignment of the policy, such consent must be obtained’ in writing, and at the Baltimore office ; and.no statement made or information given by the assured prior to the issuing of this policy to any agent or solicitor of this company, shall be deemed to be made to this company unless the same is reduced to writing and incorporated in the application hereinbefore mentioned, or indorsed upon this policy.” An additional insurance in the Sun Company of London was subsequently obtained by the plaintiff. It was argued by the learned counsel of the plaintiff that there was such notice of this additional insurance that would permit a recovery. But a decision of this question, we think, is not necessary to a proper determination of this case. There is another objection to the plaintiff’s right to recover which we think is fatal. There were certain judgments in favor of Emanuel Toomey that were liens on this real estate at the time the policy of insurance was obtained from defendant. But subsequently on April 27, 1885, a judgment was entered to No. 98 April Term 1885, for $398, in favor of David Kleckner against Benjamin A. Hench and Robert Clark; and a judgment was entered to No. 99 April Term 1885, for $450 in favor of the same plaintiff against Benjamin A. Hench and J. W. Gantt. These judgments were liens on the insured property, no payments were credited thereon, and no notice thereof was given to the defendant company. The plaintiff testified that he did not know these judgments in favor of David Kleckner had been entered, until the sheriff came with his executions after the fire; and that the agreement was, if he would give security on the notes, which he did, judgments should not bo entered thereon. The learned counsel of defendant has called our attention to the recent case of the Pennsylvania M. F. Ins. Co. v. Schmidt, decided since this case was tried, and reported in 119 Pa. 449. We think it rules this case, and renders any discussion on our part unnecessary. In that case the plaintiff had been chosen treasurer of The Rescue Hook and Ladder Company. He had positively declined to accept said office unless the company would agree not to enter up his bond. The company had agreed not to do this, and had in breach of this agreement in bad faith entered up the bond without the knowledge and consent of the plaintiff. Yet it was held to be immaterial whether the plaintiff had actual knowledge of the judgment or not. Mr. Justice Paxson delivering the opinion of the court says : “That the risk was increased by the entry of this judgment is assumed by the terms of the policy. It is not, therefore, an open question. The company has not received the premium for this increase of the risk, and not being itself in default is not bound to indemnify without receiving the consideration for such indemnity. This position is fully sustained by the authorities. It is sufficient to refer to Brown v. Insurance Co., 41 Pa. 187; Insurance Co. v. Gottsman, 48 Pa. 151; Seybert v. Penn. M. F. Ins. Co., 103 Pa. 282.” It is part of the citizen’s individual liberty to enter into such lawful contracts as he pleases, and, when free from fraud or mistake, it is the duty of courts to enforce them according to the intent and meaning of the parties as contained in their agreement. Thus their rights and liabilities, as fixed by themselves, are determined from the terms used to express them; and litigation is not invited by the hope that a court and jury may relieve against the hardship of a particular case, through some refinement of reasoning that in fact substitutes a new contract for the one made by the parties. The parties in this case definitely agreed that a subsequent incumbrance of the insured property without notice to the company should render its policy null and void. There is no dispute as to the subsequent incumbrance, and the want of notice, and this the parties themselves have declared shall avoid the policy. Reason and authority require us to say, this is fatal to the plaintiff’s right to recover. The court having reserved the question, whether, under the recited conditions of the policy and the facts of additional insurance and subsequent incumbrance, the plaintiff was in law entitled to recover, and being of the opinion against the plaintiff by reason of the subsequent incumbrance and want of notice thereof to the company, now May 1, 1888, notwithstanding the verdict, hereby enters judgment in favor of the defendant. The plaintiff thereupon took this writ and specified that the court erred: 1. In directing a general judgment for the defendant, non obstante veredicto. 2. In not entering judgment for the plaintiff for the loss upon the personal property, at least.
122 Pa. 135Sullivan v. Kieffer (1888)
ERROR TO THE COURT OF COMMON PLEAS OF UNION COUNTY. No. 95 January Term 1888, Sup. Ct.; court below, No. 45 March Term 1885, C. P. On February 27, 1885, an action in assumpsit was brought by William B. Sullivan against William L. Kieffer, to recover from tbe defendant, as terre-tenant, the principal sum charged on the land as the share of his mother, as the widow of W. B. Sullivan, deceased. The defendant pleaded, non assumpsit, with leave, etc., and the statute of limitations. At the trial on March 19, 1887, the facts shown were in substance as follows William B. Sullivan, the plaintiff’s father, died sometime in 1850, seized in fee of a farm in White Deer township, and leaving to survive him a widow Sarah Sullivan, a daughter Adeline, by a former marriage, and two sons by his second wife, W. B. Sullivan, the plaintiff, and Daniel T. Sullivan, who died in his minority, unmarried and without issue. On September 17, 1850, the will of Mr. Sullivan, dated July 13, 1850, was proved, and letters testamentary thereon issued to the executors therein named. This will, after providing for the payment of the testator’s debts and funeral expenses proceeded : 1. I give and bequeath to my daughter, May Adeline, in lieu of a bond, of two thousand dollars which I gave to David Marr in her favor, the one half of the residue of my property, real and personal. 2. I give and bequeath the one fourth of my estate to my son William. 3. I give and bequeath the income of the remaining one fourth part of my estate to my beloved wife Sarah during her natural life. 4. I will and bequeath that after the decease of my said wife that the said one fourth part of my estate the income of which was bequeathed to her to go to my said son William and in ease of the death of my said daughter or son before she or he attain the age of twenty-one or die without any heir or heirs then her or his portion shall go to the survivor. 6. I will and bequeath that if I should have any heir or heirs hereafter that the said one fourth part of my estate which I bequeath to my son William be equally divided between them and in ease of either of their deaths it shall go to the survivor or survivors of them. 6. I do order and direct my executors hereinafter named shall as conveniently may be after my decease sell and dispose of all my personal and real estate to such person or persons and for such price or prices as may be reasonably gotten for the same; and I do hereby authorize niy executors to sign, seal, execute and acknowledge all such deed or deeds of conveyance as may be requisite and necessary for granting and assuring the same to the purchaser or purchasers thereof in fee simple, and lastly I hereby constitute and appoint my friends and neighbors Samuel Henderson and Robert Candor to be my executors of this my last will and testament hereby revoking, etc. It was claimed that the daughter Adeline, before her father’s second marriage had received his bond for $2,000, dated November 2, 1849, payable ten years after date, or at his death if it occurred before the end of that period, and that this bond was to be in lieu of her share of his estate. It was paid by the executors after his death, and a credit, claimed therefor, in their account, disallowed on exceptions in the court below, but restored by this court in Candor’s App., 27 Pa. 119, so that, as contended by the plaintiff, he was the only person interested in the subject matter of the present suit. On December 24, 1850, the widow appeared in answer to a citation and declined to accept the provisions of the will in her favor in lieu of dower. Soon after, the executors by a written contract, the date and terms of which did not appear, as it was alleged to be lost, sold the land described in the will for $6,350 to Dr. W. H. Marr, who on January 25, 1851, entered into articles of agreement to sell the same land to Jacob Leiser, for the sum of $6,750, the payments to be made in the following manner: $200 on the article; $1,500 on April 1, 1851, when a deed was to be delivered; $800 on April 1, 1852 ; $800 on April 1, 1854, “ and the balance after deducting the widow’s dower (the interest of which is to be paid annually) on or before April 1, 1885,” the deferred payments to be secured by bonds and mortgage. On April 2, 1851, in pursuance of an arrangement made with Dr. Marr, the executors of Mr. Sullivan made a deed directly to Jacob Leiser, the purchaser under the above contract. This deed recited the authority to sell contained in the will of Mr. Sullivan, a consideration paid of $6,350, and it was absolute and without any reservations, conditions, charges or liens whatever, and was duly recorded. Leiser went into possession of the premises and so continued until his death in 1869, when by descent and by conveyance from the other parties in interest, the title became vested in 1872 in his son, William A. Leiser. Mrs. Sullivan, the widow, was paid the interest due to her annually, by Jacob Leiser and William Leiser, until her death on June 11, 1883. On November 8, 1884, William A. Leiser sold the farm to William L. Kieffer, the defendant, who, before the payment of the purchase money, was notified of the claim of the plaintiff and took a bond from his vendor to idemnify him against loss. The facts stated appearing in the case of the plaintiff, the defendant adduced evidence to show that in their accounts filed in 1851, 1858 and 1855, the executors of Mr. Sullivan had accounted for the full amount of the $6,350, purchase money due to them from Dr. Marr; that the final account showed a balance due the estate, expressly “ including widow’s dower,” ascertained by a subsequent proceeding at $778.72; that Jacob Leiser had paid to Dr. Marr the full amount of $6,750, the purchase money due on his contract, and had lifted all the bonds given by him to Dr. Marr, the bonds being produced in court. It was contended on part of the defendant that the deed of the executors to Jacob Leiser passed the whole title to the land except as subject to the payment of the annual interest due to the widow, and that the plaintiff had no interest in the principal set apart to secure that interest. On part of the plaintiff it was contended that there was no merger of the articles of agreement between Dr. Marr and Jacob Leiser in the deed made by the executors subsequently, and that the articles contained an express reservation in favor of the heir of his share in the principal to secure the widow’s interest; that the share of the widow passed under the intestate law, and not under the will, and as the executors could sell only subject to her estate, the interest of the heir did not pass by their deed. The court, Bakñett, P. J., charged the jury that the plaintiff was not entitled to recover, and directed the verdict to be rendered in favor of the defendant. A verdict having been rendered accordingly and judgment entered thereon, the plaintiff took this writ, assigning the said instructions to the jury as error.
122 Pa. 142Latshaw v. Shaffer (1888)
FROM THE DECREE OF THE COURT OF COMMON PLEAS OF NORTHUMBERLAND COUNTY, IN EQUITY. No. 330 January Term 1888, Sup. Ct.; court below, No. 139 Eq. D. On December 24, 1885,' H. B. Latsbaw, Isaac Reitz and John Tressler, trustees of St. Peter’s Church, filed a bill in equity against D. W. Shaffer, trustee of St. David’s Church and congregation; John Hetrick, trustee of Himmel’s Church and congregation; W. A. Shaffer, trustee of St. Paul’s Church and congregation, and Samuel Long, trustee of Emanuel’s Clmreh and congregation, praying for a commission of partition to divide and allot certain real estate held by the several congregations in common and used as a place of residence for the minister in charge of the churches, and for general relief. An answer having been filed, issue was joined, when Mr. W. I. Gbemough was appointed examiner and master, who found the following as the material facts of the ease : The complainant and respondent congregations were members of tbe same general organization, known as the Evangelical Lutheran Church. In this body the highest authority is the General Conference, composed of several synods. Each synod is divided into conferences, the conferences consist of congregations. A ministerial charge is formed by order of a conference only, and may he composed of one or more congregations, over all of which, if more than one, the pastor or minister has charge and jurisdiction. The congregations, complainant and respondent, St. Peter’s, St. David’s, Himmel’s, St. Paul’s and Emanuel’s, had been formed by the proper authority, the conference to which they belonged, into one ministerial charge or pastoral district, under the name of the Mahanoy Ministerial Charge of the county of Northumberland. On April 29, 1881, Benjamin Stepp and John Tressler, with their wives, in consideration of $1,400, conveyed to “ John Kehler, trustee of the Lutheran Congregation of Himmel’s Church, Abraham Schlegel, one of the trustees of the Lutheran Congregation of St. Peter’s Church, Enoch D. Raker, trustee of the Lutheran Congregation of Emanuel’s Church, Henry Wolfe, trustee of the Lutheran Congregation of St. Paul’s Church, and Samuel Schlegel, trustee of the Lutheran Congregation of St. David’s Church, all in the county of Northumberland, state of Pennsylvania (which several named Lutheran Congregations form the Mahanoy Lutheran Ministerial Charge, of said county of Northumberland),” a certain tract of land therein described, containing 9 acres and 118 perches, with the buildings thereon erected, to have and to hold, etc., “to and for the only proper use, benefit and behoof of the aforesaid party of the second part and their successors and assigns forever.” The purchase money was made up by contributions from each congregation, and the purchase was made for a parsonage for the minister in charge of the contributing congregations. After the purchase of the parsonage property the trustees of the five congregations leased the property at a nominal rental to Rev. J. F. Bayer, the minister in charge, who went into possession and thereafter continued to occupy the property. In 1884, an opposition to Mr. Bayer arose in St. Peter’s Church, resulting in a meeting at which by a vote 'of a majority of the members it was resolved that he “ shall not any longer be the pastor of this one Evangelical Lutheran St. Peter’s Congregation.” The other congregations adhered to Mr. Bayer. Mr. Bayer then ceased to officiate for St. Peter’s and the minority withdrew with him and formed a new congregation called St. John’s Church, and began worship in a new building erected near .by. Mr. Bayer thereafter continued in charge of the new congregation with the four others, respondents in this proceeding, St. Peter’s being in charge of different ministers supplied. In the summer of 1885 propositions were made by St. Peter’s to the respondent congregations, looking to a sale of St. Peter’s interest in the parsonage property, or, the purchase by St. Peter’s of the interests of the remaining congregations; or, for a public sale of the property to the highest bidder; or, for other negotiations. These propositions were considered by the respondent congregations, but no agreement upon the subject was reached. St. Peter’s then filed this bill. Two grounds of defence against the complainants’ bill were raised by the respondents. One was, that the complainants were not entitled to partition because they were not the proper representatives of St. Peter’s Church or congregation, as they were “seceders” and had violated the laws of the Evangelical Lutheran Church by their dismissal of Mr. Bayer and their refusal to permit him and his adherents to worship in the church building, and also in their procurement of other ministers to supplant Mr. Bayer in the performance of ministerial duties. The master, discussing First M. P. Ch.’s App., 16 W. N. 245; Ramsey’s App., 88 Pa. 60; Sutter v. Ref. D. Church, 42 Pa. 508; Schnorr’s App., 67 Pa. 138; Roshi’s App., 69 Pa. 462 ; App v. Lutheran Cong., 6 Pa. 201; Trustees v. Sturgeon, 9 Pa. 321; Winebrenner v. Colder, 43 Pa. 244, proceeded: The majority members of St. Peter’s have not adhered to the regular order of the church organization, but have declared themselves separated from the Mahanoy Charge, and have dismissed from their church edifice the minister of that charge and have refused his ministerial services and duties, and instead have called in other ministers of the same denomination to perform those services. In all these respects they have violated the law of their church and are, therefore, not the true congregation and corporation, and are not entitled to demand partition of the parsonage even if it is partable. The second question or ground of defence proposed by the answer is, that as the money was raised and dedicated for the sole purpose of purchasing a parsonage for the use of the minister in charge of the Mahanoy Charge and the purchase was made in accordance with that purpose, there cannot be a division or partition or any other disposition of that property so long as the Mahanoy Charge continues, and especially so, when as here such division defeats the original purpose of the contributors to the purchase. Under the acts of February 6, 1731, 1 Sm. L. 193, and. August 2, 1842, P. L. 465, religious societies “ may take and hold lands or tenements for the purpose of burial grounds, churches, parsonages, school-houses and alms-houses, and to have and to hold the same according to the respective rules, and disciplinary regulations of the said religious societies.” And therefore “ a conveyance to their trustees constitutes an executed legal estate in the congregation itself: ” Brendle v. German Ref. Cong., 33 Pa. 415. “ All religious societies hold land for a qualified purpose, because the law does not allow them to hold for a general purpose. But the qualification has, place only as between the public and the holders and not between the grantors and holders. It is not a qualification of the estate, but of, the uses to which in such hands it may lawfully be applied. It is not intended to prevent alienation for general purposes, but to prevent a religious society from using land for general purposes. It defines the duties of the religious societies to the state and not to the grantors.” “ Those grants are, as between the grantors and grantees, fees simple, and, as. between the trustees and beneficiaries, they are trusts: ” Griffitts v. Cope, 17 Pa. 100; Schnorr’s App., 67 Pa. 138; McGinnis v. Watson, 41 Pa. 15, 16. These congregations acquired a fee simple title in the land,, but it was bought by them for a special and lawful purpose, and is held in trust for the benefit of these congregations-while they constitute one ministerial charge. No doubt if all join they can convey to a purchaser a good title for general purposes, but, as trustees, the proceeds ought to be applied by them to the same uses and purposes. As to the grantors,-they will be regarded as holding the title as tenants in common; but as to the beneficiaries, the five congregations, or their officers, .are but one person and trustee to hold the parsonage for the one purpose of providing a home for the pastor of the one ministerial charge or pastoral district composed, at present, of five congregations. Partition or division of any kind will defeat the purpose -of the purchase, and upon a distribution of the proceeds or valuation money, give to each congregation a. fund which properly can only be used in another joint purchase for the same purpose. A trustee will not be permitted to defeat the trust. Assuming that the majority part of St. Peter’s and their officers are the true congregation and corporation, still they ought not to be permitted to defeat the purpose of this purchase by a sale or division of the parsonage. As a ministerial charge is governed, by the church law, by a majority of the councils of the several congregations acting separately, but through their trustees, and the majority of the councils of the Mahanoy Charge have decided to reject any offer or proposition of sale or division of the parsonage and resist division by their answer in this case, the one congregation, St. Peter’s, ought not to be permitted to violate the law of their church organization by means of a proceeding in the civil law courts for partition. It is therefore recommended that a decree be made, and it is hereby made, that the bill of complaint in this case be dismissed at the cost of the complainants. Exceptions, filed by the complainants to the report of the master and to the decree recommended, were overruled by the master, and renewed in court. On January 28, 1885, the court, Rockefeller, P. J., filed an opinion which, after reviewing the findings of the master upon the facts, proceeded: I do not decide that two or more religious societies or congregations, owning and using separate places of worship or not, or together forming a pastoral district or ministerial charge, purchasing property to be used as a parsonage, would not be tenants in common and as such ^entitled to partition. But in the case of Brown v. Lutheran Church, 23 Pa. 500, Judge Woodward, in speaking of the rights of parties to have partition, says: “yet circumstances of their own creation will sometimes induce the courts to deny them this right, a striking instance of which may be seen in Coleman v. Coleman, 19 Pa. 100.” The master has fully found all the facts and circumstances of the present case, especially as to how the money was raised, and the purpose for which it was dedicated, and holds that a division, or sale of the property, would defeat the original purpose of the contributors to the purchase, which was special and lawful. As before remarked whether this is so or not, I am of opinion that, under all the facts found by the master, some of which I have mentioned, the complainants are not entitled to partition. And now to wit, January 28, 1888, the exceptions are dismissed, the report of the master confirmed, and the bill of complainants dismissed, at the costs of the complainants. Thereupon the complainants took this appeal and assigned the decree dismissing their exceptions and confirming the report of the master as error.
122 Pa. 154Scranton Elec. L. & H. Co. v. Scranton Ill. H. & P. Co. (1888)
FROM THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, IN EQUITY. No 310 January Term 1888, Sup. Ct.; court below, No. 4 ‘October Term 1886, C. P. in equity. On September 30,1886, The Scranton Electric Light & Heat Company filed a bill in equity against The Scranton Illuminating, Heat & Power Company, praying for a special injunction, to be made permanent on final hearing, restraining the defendant company from furnishing electric light to the city of Scranton and from interfering with the rights of the plaintiff company; lor further and other relief. On October 18, 1886, a special injunction, issued on the filing of the bill, was dissolved, opinion by Hard, P. J. The defendant company filed its answer on March 5, 1887, and the cause being put at issue was subsequently referred to Mr. James U. Torrey, as examiner and master, who on January 25, 1888, reported as follows: The complainant’s bill filed September 30, 1886, sets forth that it is a corporation duly organized and chartered on May 12, 1883, under the act of April 29, 1874, for the purpose of furnishing light to the city of Scranton and suburbs and to the inhabitants thereof, with a capital of fifty thousand dollars; that in pursuance of said charter, the complainant had purchased land and constructed a plant for the manufacture and furnishing of light by electricity to all the citizens of the city of Scranton and suburbs, who desired to use such light, and had erected poles and placed wires upon the same, and procured costly machinery, and were and had been since June, 1884, engaged in furnishing electric light to all the inhabitants of the city of Scranton and suburbs who desired to purchase and use the same, and were ready and prepared to furnish the different kinds of electric light as the demand for the same might require; that complainant had obtained permission from the municipal authorities of the city of Scranton to occupy the streets and carry on their business within the corporate limits as required by law; that the defendant company had procured a charter for the purpose of furnishing light in the said city of Scranton, were engaged in planting poles and making other preparations for furnishing electric lights to the inhabitants of said city for a consideration in money, and claimed the right ■under their charter to do so; that under the act of assembly the complainant had by virtue of their charter the exclusive right to occupy the territory comprising the city of Scranton, and furnish the inhabitants thereof with electric light for and until the said company should have earned and divided dividends of eight per cent on the capital stock for a period of five years, and that they had neither earned nor divided any dividends upon this capital stock; that the defendant, without the right to do so, was interfering with the rights and franchises of the complainant company, inflicting upon it serious harm and damage, and if allowed to proceed would reduce the value of complainant’s property and capital, and do them other irreparable damage. The prayers were for a special injunction, to be made permanent on final hearing, restraining the defendant, its servants and agents, from furnishing electric light to the city of Scranton or any of the inhabitants thereof, and from interfering with the vested and exclusive rights of complainant in any manner; and for general relief. The defendant, by its answer filed March 5,1887, admits the incorporation of the plaintiff company, and, does not deny that it has purchased ground, erected poles and constructed a plant for the purpose of furnishing electric light to the city of Scranton and the inhabitants thereof; it does specifically deny that complainant is provided with machinery and appliances necessary to enable it to furnish other than arc electric light, or that it is in good faith furnishing to the public any kind of electric light. Upon this point it specifically charges that in the summer of 1884, the control of the complainant company passed into the hands of the Scranton Gas & Water Company; that this control was secured for the express purpose of managing the plaintiff company in the interests of the said Gas & Water Company, and that by a system of over-charges and by other means the use of electric lights had been discouraged and the inhabitants of the city of Scranton practically deprived of their use. It is admitted that the defendant had secured a charter, and that it was proceeding thereunder to locate, erect and construct all the necessary machinery, poles, wires and other appliances for the manufacture and supply of electricity for lighting, heating and other purposes within the city of Scranton ; it is averred that the defendant company had obtained permission from the municipal authorities of the said, city to occupy and use the streets and carry on its business within the corporate limits thereof; it is specifically denied that the complainant has the exclusive right claimed in its bill, “to occupy the territory comprising the city of Scranton and to furnish the inhabitants thereof with electric light,” during the period in said bill averred, (a) becaxrse the purposes of the corporations, plaintiff and defendant respectively, are not identical or in conflict with each other; (5) because neither the said act of April 29, 1874, nor any other act, has conferred any exclusive rights, privileges or franchises whatever upon the said corporation plaintiff; (c) because if any act of assembly purports to confer such exclusive privilege, such act is, in that regard, unconstitutional and void. It is further denied that the defendant corporation is in any manner interfering with the rights and privileges of the plaintiff, or inflicting upon them any harm or damage; whereupon the defendant prays to be dismissed with costs. Upon the filing of the bill a special injunction was granted as prayed for, and at the same time a rule was taken on the defendant to show cause why the injunction should not bo continued. By opinion of Hard, P. J., filed October 18, 1886, this rule was discharged and the special injunction dissolved. The testimony offered by the parties was taken by the undersigned sitting as examiner, September 13, 1887, and on other succeeding days, which was reduced to writing and is filed with this report. The master finds from the testimony as facts pertinent to the issue in this case the following: 1. April 30, 1883, Randolph Crippen and eight others, citizens of the city of Scranton, executed a certificate of incorporation in accordance with the requirements of the act of April 29, 1874, for the formation of a corporation of the second class, to be called The Scranton Electric Light & Heat Company. These articles were duly acknowledged and recorded in the office of the secretary of the commonwealth in Charter Book No. 17, page 296. May 12, 1883, letters patent, under the great seal of the commonwealth, were duly issued incorporating the subscribers to the said certificate under the corporate name aforesaid. This corporation is the plaintiff in this suit. 2. By concurrent resolution of the councils of the city o# Scranton, approved by the mayor June 23, 1883, the plaintiff was granted permisssion “ to introduce, locate and erect the electric light plant in the city of Scranton, said lights to be attached to insulated wires; said wires to be erected on poles along streets, avenues and alleys.” 3. Between the date of its incorporation and June 1, 1884,, the plaintiff company purchased land in said city of Scranton, erected machinery, planted poles, and otherwise prepared themselves to furnish arc electric lights to such ^subscribers as they could secure in said city. 4. About July 1, 1884, the plaintiff company was in full operation, having obtained subscribers for about sixty-four lights. At this time the entire stock and property of the company had passed into the hands of Mr. W. H. Spang, of Reading. Through Mr. L. N. Kramer, of Scranton, Mr. Spang entered into negotiations for the sale of the plant to Mr. W. W. Scranton. These negotiations were consummated about July 1, 1884, by the purchase of the entire stock, plant and property of the plaintiff corporation (the stock being assigned in blank) for the sum of $20,000, part of which was paid by Mr. Scranton’s assumption of certain debts owing by the company, part by the check of the Scranton Gas & Water Company, of which Mr. Scranton was then the president, payable to Mr. Scranton and indorsed by him, and the balance by a note of the Scranton Gas & Water Company, similarly indorsed. Thereafter, up to the present time, the officers and directors of the plaintiff company have been identical with the officers and directors of The Scranton Gas & Water Company, and all its business has been transacted in the office of that company. 5. At the time of this transfer, the plaintiff company were operating one circuit to supply lights until nine or ten o’clock at night, called the ten o’clock circuit, and another to supply lights until midnight, called the twelve o’clock circuit. The ten o’clock circuit was made to accommodate stores, which needed no light after that hour, and the rates charged were proportionally lower. For instance, at the time of the transfer, the rate for two lights on the twelve o’clock circuit was ninety cents per night, on the ten o’clock circuit seventy cents ; for three or more lights, on the twelve o’clock circuit forty cents per light per night, and on the ten o’clock circuit thirty-two and a half cents. In November, 1884, four months, after the transfer, the whole system was changed. The ten o’clock circuit was taken off, and all lights wore put on the twelve o’clock circuit. The rates were made uniform at a slight advance on the former rates for the twelve o’clock circuit, as follows: A uniform rate of fifty cents per light per night was made for all lights, and discounts were allowed as follows: On one light two per cent, on two lights eight per cent, on three lights ten per cent, on four lights twenty per cent. The effect of this change was to make a very large increase in the rate for those who had been on the ten o’clock circuit, and the following increase on the twelve o’clock circuit: 1 light from 48 cents to 49 cents. 2 “ “ 45 “ “ 46 “ 3 “ “ 40 “ “ 45 “ 4 “ same rate 40 cents. 6. No energetic efforts seem to have been made after the transfer, by the new officers of the plaintiff company, to enlarge or even retain the business of the company. On the contrary, they seem to have stood by and seen the business diminishing until it had almost disappeared, without any sign of anxiety or quickened energy. At the time of the transfer, the company supplied sixty-four lights ; about a year later, in August, 1885, only fourteen; in another year, August, 1886, only ten; and at the time the bill in this case was filed, only nineteen. 7. At no time up to the commencement of this suit had the plaintiff company any appliances adequately adapted to the supply of incandescent electric light. 8. The plaintiff company has never earned nor paid any dividends whatever upon its capital stock. 9. April 3,1886, B. H. Throop and five other citizens of the city of Scranton, executed a certificate of incorporation in accordance with the provisions of the act of April 29, 1874, for the formation of a corporation of the second-class, to be called The Scranton Illuminating, Heat & Power Company. This certificate was duly acknowledged and recorded in the office of the secretary of the commonwealth in Charter Book No. 22, p. 297. May 1, 1886, letters patent under the great seal of the commonwealth, were duly issued incorporating the subscribers to the said certificate under the corporate name aforesaid. This corporation is the defendant in this suit. 10. By concurrent resolution of the councils of the city of Scranton, approved by the mayor June 28, 1886, permission was granted to the defendant company “ to erect pole's and stretch wires on the same along the said streets and alleys of said city for the proper distribution of electricity for furnishing light.” 11. The defendant company immediately proceeded to purchase land, construct and erect machinery, plant poles, string wires thereon, and generally to furnish itself with all means and appliances necessary to enable it to supply both arc and incandescent lights to its patrons in the said city of Scranton. About three weeks after it had begun to plant poles in the streets, September 30, 1886, the proceedings in this case were commenced by the plaintiff company. 12. After the dissolution of the special injunction, the defendant company completed its plant, and has since been in full operation, supplying about 4,000 incandescent and about 100 arc lights to its patrons in said city. 13. There is no evidence that the plaintiff company or its officers ever refused any applications on the part of residents of Scranton 'for electric lights. 14. The purposes of the corporations, parties in this case, as stated in their certificates of incorporation, were — of the plaintiff, “ furnishing light and heat to the city of Scranton and suburbs, and to the inhabitants ; ” of the defendant, “ manufacturing electricity to supply the same through appropriate conductors in the city of Scranton, Pa., for lighting, heating and power, and supply consumers with necessary appliances to utilize the same.” It is argued by the defendant that the evidence justifies the conclusion that, from the time of the transfer of the plaintiff company to Mr. Scranton, until this suit was instituted, the plaintiff company was managed with the deliberate purpose of discouraging and preventing the use of electric lights in the city of Scranton, in the interest of The Scranton Gas & Water Company. There is no direct evidence of any arbitrary taking out of lights previously in use, or of any refusal to supply lights when requested, nor of any clamorous public demand for increase of electric lights. But however desirous the company might be to prevent the use of their lights, it would hardly be expected that they would seek to attain that end by highhanded measures, which would have been a challenge to the public to seek a forfeiture of their charter. Their disposition toward the public is rather to be judged of from a consideration of their acts and the results which followed them, under the legal presumption that every one intends that which is the natural consequence of his acts. When Mr. Scranton took charge of the company they had barely begun business, and had secured subscribers for sixty-four lights. Within a few months, by change of circuits and increase of rates, a very important advance was made upon the rates of those who only needed the lights till ten o’clock, and a slight advance on nearly all lights. In a year the number of lights had decreased to fourteen, and seems never again to have reached twenty up to the time this suit was commenced. In the meantime, a reduction of 20 per cent was made in the price of gas. No energetic effort was made to increase the use of electric lights, and no machinery was procured to enable the company to furnish incandescent lights at all. Since the establishment of a rival company the plaintiff lias entered into a contract with the city for 180 or more arc lights, and have secured subscriptions to 100 or more lights from private individuals. In addition to this, the defendant company has placed 100 arc and 4000 incandescent lights in this city. However this great demand has been created, it cannot be denied that it exists, and it is evident that it began to exist from the moment that the plaintiff’s exclusive right to supply electric lights to the city of Scranton was successfully challenged. It is hardly conceivable that capable business men would have continued from year to year to maintain an organization like the plaintiff company, which was not doing enough business to pay running expenses, without any effort to enlarge its business, unless there existed some ulterior motive for keeping such organization alive, without regard to its success from a business standpoint. No such motive is suggested in this case, except the supposed exclusiveness of the plaintiffs franchises by the maintenance of which The Scranton Gas & Water Company might expect to be protected from danger of competition in the supply of light to the city of Scranton. Indeed the existence of this motive is hardly denied. Mr. Hand, the plaintiff’s secretary and treasurer, says on cross-examination : Q. Isn’t it a fact known to you that the desire on the part of your company was to continue the use of gas in the city of Scranton, instead of electricity, prior to the organization of the defendant company? A. I couldn’t say whether that was particularly their desire. Q. Did you ever hear any conversation on the subject among your directors ? A. I really don’t call .to mind anything that was said about it one way or the other. The master finds: [15. That from July 1, 1884, until the commencement of this suit, the business of the plaintiff company was managed wholly in the interest of The Scranton Gas & Water Company, not with a desire and effort on the part of its management to encourage the use of electric light and to furnish the best and cheapest light practicable, but with the intention as far as practicable to restrict the use of electric light for the benefit of said Gas & Water Company, and depending on the supposed exclusiveness of plaintiff’s franchise for protection against competition.] 3 The legal questions involved in the case are identically the same which were argued at the hearing of the rule to continue the preliminary injunction, and which were carefully and thoroughly considered by the court in the opinion discharging that rule. As they arise out of the construction of the act of assembly under which both parties were chartered, no material aid is given to their solution by the testimony taken by the examiner or the facts found therefrom by the master. So far as this court is concerned, they are, therefore, res adjudicata, and the master would require to be very clearly convinced that the court erred in its previous decision before he would disagree with the conclusions reached in the said opinion. So far from being convinced that the court was in error, the master is entirely in accord with the position taken at the preliminary hearing. The single legal question in the case is this : Has the plaintiff by its charter, and the act of assembly under which it was organized, an exclusive right to supply electric light to the city of Scranton and its inhabitants, until it has paid or earned dividends equal to eight per cent of its capital stock for five years? If it has such exclusive right, it is prima facie entitled to the relief prayed for in the bill. If not, it has no standing in court. The act of.' April 29, 1874, is to bo construed as a whole. In the second section the purposes for which corporations may be formed under the act, are divided into two classes and each class is subdivided into numerous varieties. Those of the second class are divided into twenty varieties, of which the ninth is “The supply of water to the public,” and the eleventh, “The manufacture and supply of gas or the supply of light and heat to the public by any other moans.” Section 8 prescribes the means by which charters shall be procured, in which it appears that the purposes of the corporation are to be gathered from the certificate which is to be recorded both in the office of the secretary of the commonwealth and in that of the recorder of deeds of the proper county. Sections 4-26 define the general powers and duties of corporations and their officers, the methods of conducting their business, etc. Sections 27-40 prescribe the special powers and duties of the corporations of the second class, formed for the several specific purposes mentioned in section 2. Among the special powers so granted, is the delegation of the right of eminent domain within carefully prescribed limits, to such of the corporations and to such a degree as seemed likely to be required for the prosecution of their intended business. For instance, to road companies, ferry and bridge companies, and water companies, is given the right to'take and condemn lands, etc.; to telegraph and water and gas companies is given the' right to enter upon and occupy roads, streets or highways, the former for the purpose of erecting polos and stretching wires thereon, the latter for the purpose of laying down, altering or repairing pipes, etc. To many of the corporations no such powers are given, such, for instance, as insurance companies, building and loan associations, iron and steel companies, etc. It is in the 34th section that the provisions applicable to the question at issue here are found. Clause 1 of this section specifies the powers of a “ company incorporated as a gas company, or company to supply heat or light to the public,” among which is “ the right to enter upon any public street, lane, alley or highway, for the purpose of laying down pipes, altering, inspecting and repairing the same.” Clause 3 is as follows: “ The right to have and enjoy the franchises and privileges of such incorporation within the district or locality covered by its charter shall be an exclusive one, and no other company shall be incorporated for that purpose until the said corporation shall have from its earnings realized and divided among its stockholders during five years a dividend equal to eight per centum per annum on its capital stock,” etc. Fortunately the act itself prescribes the rules of construction which are to be adopted in the determination of the powers granted by it. Section 25 is as follows: “ The incorporation of any association of persons for the purposes named in this act, or accepting the same shall be held and taken to be of the same force and effect as if the powers and privileges conferred and the duties enjoined, had been conferred and enjoined by special act of the legislature, and the franchises granted shall be construed according to the same rules of law and equity as if it had been created by special charter, and no modification or repeal of this act shall affect any franchise obtained under the provisions of the same.” Naturally the first question to be met is: Does the charter of the defendant necessarily conflict with that of plaintiff? As we have seen, the purposes for which charters are granted under the act are to be gathered from the certificate of incorporation, and clause 3, section 34, provides that “no other company shall be. incorporated for the same purpose until,” etc. Under the rules of law applied to such questions, if a special charter had been granted to the plaintiff for the purposes mentioned in its certificate, viz.: for the purpose of “furnishing light and heat to the city of Scranton and to the inhabitants thereof,” and such charter contained the exclusive privilege given by clause 3, would the granting of the defendant’s charter for the purposes stated in its certificate, viz.: for “manufacturing electricity to supply the same through appropriate conductors in the city of Scranton, Pa., for lighting, heating and power, and to supply consumers with necessary appliances to utilize the same,” would this constitute a violation of such exclusive privilege ? Grants of exclusive privilege or monopolies are to be strictly construed. [It is manifest at a glance that the purposes of these charters are not verbally identical. Are they legally so ? We think not.] 4 The purpose of the defendant company may be included in the general terms used to express the purpose of the plaintiff; but they are not therefore identical. Emerson v. Commonwealth, 108 Pa. Ill, presents almost precisely a parallel state of facts. There the purposes expressed in general terms in the certificate of the company first chartered “to supply heat to the public from gas,” clearly included the purpose of the second company “to supply heat to the public by means of natural gas,” yet the Supreme Court held that the purposes were not identical. Though the proposed sources of supply for gas of the different companies in that case were different, the one being from within and the other from without the city, yet in the decision of the case that consideration was distinctly passed, and it was squarely decided that, independently of it, the purposes were not identical. A further consideration which leads to the same conclusion is that exclusive privileges are granted with an implied obligation to the public co-extensive with the grant. “The grant of state aid to enable a private corporation to accomplish a purpose of public interest is, therefore, always subject to the implied condition that the company shall assume an obligation to the state to fulfill the purposes of the grant. They would have no power to grant the aid of the state on any other terms. It is immaterial whether the aid he in the form of direct donation of funds or property by the state, or by a county or municipality, or in the form of a subscription for shares, or of a delegation of the power of eminent domain, or of an exemption from taxation, or of a monopoly. In each instance the acceptance of a grant of the public aid implies an assumption by the grantee of an obligation in favor of the publicMorawetz on Private Corporations, § 1114, 2d ed. If by its charter the plaintiff was granted the exclusive privilege of supplying light and heat to the city of Scranton, by whatever means, thereby they are under a corresponding obligation to do so. Will it be contended that if a demand should arise (if it does ■ not already exist) for the supply of heat by steam, that the plaintiff must go to the expense of procuring all the necessary machinery and appliances to meet that demand, or else forfeit its charter ? Suppose natural gas should be discovered in this region, would the plaintiff be compelled to provide for its supply to the city? Suppose the present considerable number of methods for the distribution of light to many points from a single centre should be indefinitely increased by new discoveries and new inventions, must the plaintiff hold itself ready to adopt every new method of whatever outlay, or violate its implied contract with the state ? Yet all these things are as clearly within the scope of the purposes declared by them as is thé supply of light by electricity, and if their chartered franchise covers these things, and they have an exclusive right, they may at any moment be forced by a public demand to provide for them. In this connection the language of the United States Supreme Court in Bridge Proprietors v. Hoboken Co., 1 Wall. 149, seems pertinent: “ The building of a bridge was not the privilege but the duty of those who had the (charter) contract; a duty which constituted the consideration for the privilege which was granted to them. The right to collect toll from persons and things passing over their bridges, is the privilege or franchise which they have, and that right is rendered valuable by the prohibition to build other bridges within the limits designated.” So, in this case, the supply of light or heat is not the privilege or franchise granted, but it is a duty imposed upon the plaintiff, in consideration of which the corporate franchises are to be granted. Again, the extent of every grant is to be determined by the common significance which was given to the words used at the time of the grant. See cases cited by counsel in Bridge Proprietors v. Hoboken Co., supra, 133-4. That was a ease in which it was attempted to restrain the erection of a railroad bridge within the limits in which an exclusive charter had been granted to a bridge company. The court held that at the time the original charter was'granted, railroads were unknown, and the case of a railroad bridge could not have been contemplated, and was not, therefore, included in the words prohibiting other bridges. Upon this principle it is forcibly argued that the provisions of the act of 1874 were not intended to cover the case of lighting and heating by electricity for the simple reason that such use of electricity was at that time only a matter of scientific experiment and not of general utility; and that the general words “ or the supply of light and heat by other means ” are properly restricted to such means as were in common use at that time. It matters not that such construction might defeat the charters of both companies. The plaintiff is seeking relief on the claim of an exclusive right and fails equally whether it is found that both parties have an equal right, or that neither has any right. Moreover the supplement of 1876 more distinctly covers this purpose, and there is no hint of exclusive privilege there. The master therefore finds as law: [1. That the purposes for which the defendant was chartered, are not the same as those for which the plaintiff was chartered, and therefore that in carrying out its purposes the defendant is not invading the exclusive privilege of the plaintiff.] 3 Again, as it is clearly stated in the opinion dissolving the preliminary injunction, both parties to this suit desire to furnish light by electricity, and the only public franchise which is necessary for that purpose, viz. : the occupation of streets, etc., for the erection of poles, and the placing of appropriate conductors, not only is not made exclusive, but is not granted at all in the act of 1874, and the public franchises which are granted and made exclusive in section 34 of the act, are such as though very needful for a gas company, are of no use whatever in the supply of electricity, viz.: the “ right to enter upon any public street, lane, alley or .highway, for the purpose of laying down pipes, altering, inspecting and repairing the same.” It is unnecessary to add anything to the opinion of the court on this point, and the master finds: [2. That none of the acts charged and proven to have been committed by the defendant constitute an invasion of any exclusive franchise or privilege granted to the plaintiff by its charter, or the act of 1874.] 6 The master’s fifteenth finding of fact is material to the case only upon the question whether the plaintiff comes into court with clean hands. Bearing in mind that grants of exclusive privilege are only sustained so far as they promote the public good; that they are granted on the implied condition that they shall be so exercised as to benefit the public, and that the thing to be done by the corporation is a duty and not a privilege; it becomes evident that proof of intentional mis-user or non-user, or of any effort or design to make the possession of the exclusive privilege an instrument for the embarrassment or deprivation of the public, will be sufficient to prevent a court of equity from interfering for the protection of such exclusive privilege. In view of these principles and upon the facts found in the case, the master finds: [3. That the conduct of the plaintiff company, at and before the filing of the bill in this case, was such as to deprive it of the right to call for the interposition of a court of equity, even if it had possessed the exclusive franchises claimed by it.] 7 [The master, therefore, respectfully recommends that the plaintiff’s bill be dismissed at the cost of the plaintiff.] 8 To this report the plaintiff excepted, that the master erred: 1. In his 15th finding of fact.3 2. In his saying as embraced in [ ] 4 3. In his 1st conclusion of law.5 4. In his 2d conclusion of law.6 5. In his 3d conclusion of law.7 6. In the decree recommended.8 These exceptions having been overruled by the master were renewed in court, and on January 26, 1888, the court, Hard, P. J., dismissed them and entered a final decree that the plaintiff’s bill stand dismissed, with costs to be paid by the plaintiff. Thereupon the plaintiff company took this appeal and assigned as error: 1, 2. The confirmation of the report and the dismissal of plaintiff’s bill. 3-8. The dismissal of plaintiff’s exceptions. 3 t0 8
122 Pa. 177Appeal of Walsh (1888)
FROM THE DEGREE OF THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 100 January Term 1888, Sup. Ct.; court below, No. 110 January Term 1887, O. C. On J une 26, 1886, Margaret Tyrrell died intestate, unmarried and without issue. Her sole next of kin were a sister, Catharine Tyrrell and a nephew and a niece, Nellie J. and John T. Walsh, children of a deceased sister. Letters of administration were granted to the niece, Nellie J. Walsh. Catharine Tyrrell, the sister, lived in Ireland. On March 15, 1887, the account of Nellie J. Walsh, the administratrix, called for audit before Ashman, J., showed a balance for distribution of $880.72, subject to costs of audit and the collateral inheritance tax. This balance was claimed on behalf of Catharine Tyrrell, who produced the testimony of one Thomas Doyle, that on the day before her death, the intestate, as she was about to be removed to a hospital, handed to witness her deposit book with the Philadelphia Saving Fund Society, saying: “ The money there is for my sister in Ireland, but if I don’t die I want it back.” The account in this book contained credits to her amounting to $1,045.75, which was her whole estate and embraced the fund accounted for by her administratrix and for distribution. Certain rules of the saving fund were printed in the deposit book and read as follows: Every person making a deposit for the first time is to sign a book containing these rules and regulations, which he thereby signifies his assent to, and his willingness to be hound by; and by receiving the book with these rules and regulations printed thereon, he is informed of the same; and any alteration made in these regulations, and any new regulations made by the managers, shall be equally binding on all depositors as those by them subscribed, after the same shall have been duly made known. No check or order for the payment of money will be accepted in advance ; and no transfer or assignment of the book, or of the money belonging to a depositor, can be acknowledged; but the treasurer may, in proper cases, at his discretion allow money to be paid on checks of the depositor, as in other banking institutions, after due notice as above provided. In case of the death of a depositor, payment can be made only to his or her executors or administrators producing the book, unless an appointment shall have been made by such depositor in the book of the society, of a person to receive the same, agreeably to the tenth article of the Constitution of this Society. In case any depositor shall be unable by reason of sickness or other infirmity, or of absence from the city, to attend in person to receive any payment, he or she may receive the same by means of a power of attorney duly executed and proven or acknowledged, or, with the consent of the treasurer, upon a check drawn on the society. Blank powers of attorney and checks for this purpose will be furnished gratis, at the office of the society. The auditing judge, considering the facts in evidence and citing Snellgrove v. Baily, 3 Atk. 214; Gardner v. Parker, 3 Madd. 184; Blount v. Burrow, 4 Bro. C. C. 72; Duffield v. Elwes, 1 Bligh, N. S., 514; Wells v. Tucker, 3 Binn. 366; Brown v. Brown, 18 Conn. 410 (46 Amer. D. 328); Camp’s App., 36 Conn. 88 (4 Amer. R. 39) ; Tillinghast v. Wheaton, 8 R. I. 536 (94 Amer. D. 126); Drury v. Smith, 1 P. Wms. 404; held that the modern principle might be thus stated: A gift of a bond or mortgage or other security for money, accompanied by delivery of the instrument, is an equitable assignment ; and the legal representatives of the donor, in whom the legal title remains, become trustees for the donee and their names may he used by him to enforce payment. The balance was then awarded to Catharine Tyrrell, the claimant. To this decree Nellie J. Walsh excepted that the court erred: 1. In holding that the evidence in the case was sufficient to prove a delivery of the donatio mortis cansa. 2. In holding that the delivery of the deposit book, with the language used by the decedent, constituted a valid donatio mortis causa. After argument of the foregoing exceptions, the following opinion was filed, Penbose, J.: However contrary to the policy of the law as evinced by the statute of frauds and statutes relating to the execution and proof of wills, nuncupative and written, gifts mortis causa are too firmly established as a method of transferring personalty to be abolished or restricted by anything short of legislative enactment. Though essentially testamentary technically they take effect, or more properly speaking are inchoate, in the lifetime of the donor, and hence may be proved by parol and by the testimony of a single witness: Wells v. Tucker, 3 Binn. 366; Bates v. Kempton, 7 Gray 382. As long ago as 1752 Lord Hardwicke, in Ward v. Turner, 2 Ves. Sr. 431, spoke in the strongest terms of their evils; and in Duffield v. Elwes, 1 Bligh, N. S., 536, Lord Eldon expressed the opinion that they should “be struck out of our law altogether,” a sentiment which has been echoed by many eminent judges, in this country as well as in England: Wells v. Tucker, supra; Headley v. Kirby, 18 Pa. 328; Michener v. Dale, 28 Pa. 59; but as these utterances have been without effect upon the law-making power, it must be assumed that they do not accord with tlio views of the general public and that the suggested change is not desired. It is perfectly well settled that choses in action, or at least such as import a liability of a third person, are the subjects of a valid donatio mortis causa; the note or obligation of the donor himself is not, but this is because the gift of his own note being of a promise only and not of the thing promised, tlio requirement of an actual delivery is wanting: Harris v. Clark, 3 N. Y. 93. The requisites of a gift mortis causa are, that it be made in view of impending death; that by express provision or necessary implication, it is to become inoperative if the anticipated death does not take place or if the donee should die previously; and that the intention of the donor to complete the gift be shown by actual delivery of its subject and the surrender of all dominion over it. It is not however essential, as it is in gifts inter vivos (as distinguished from declarations of trust), that the legal title of the donor should be completely divested. “ No court of equity,” said Lord Eldon, in Duffield v. Elwes, supra, “ will compel the completion of gifts inter vivos, and .....the donor is considered as a party who may refuse to complete the intent he has expressed; but I think..... nothing can be more clear than that this donatio mortis causa must be a gift made by the donor in contemplation of the approach of death; that the title is not complete till he is actually dead, and that the question, therefore, never can be what the donor can be compelled to do, but what the donee in the case of a donatio mortis causa can call upon the representatives, real or personal, of that donor to do; the question is tins, whether the act of the donor being, as far as the act of the donor itself is to be viewed, complete, the persons who repre.sent that donor.....are not bound to complete that which, as far as the act of the donor is concerned in the question, was incomplete; in other words, where it is the gift of a personal chattel.....which is the subject of the donatio mortis causa, whether after the death of the individual who made that gift, the executor is not to be considered a trustee for the donee. .....I apprehend that really the question does not turn at all upon what the donor could do, or what the donor could not do; but if it was a good donatio mortis causa, what the donee of that donor could call upon the representatives of the donor to do after the death of that donor.” See also Story’s Eq., § 607 c. The reason for the distinction in this respect between gifts inter vivos and gifts mortis causa is, that in the case of the latter there is no intention, in the first instance, to pass the property absolutely; because, if the donor recover, the property is to remain in him, and a complete transfer of the title might therefore he inconsistent with this conditional quality. In the case now under consideration, the auditing judge has found, upon evidence which cannot be held to be insufficient, the existence of all the facts necessary to establish a valid gift mortis causa; and the only question is whether the subject-moneys of the donor represented by her deposit hook in the saving fund, passed by the mere delivery of the book, coupled with language clearly expressing the intention to give, to or in trust for the donee. Though spoken of as being “ on deposit,” moneys thus held by the bank or savings institution are in reality loaned; no ownership is retained, and the relation between the bank and the dejiositor is simply that of debtor and creditor. The entries in the deposit book are the evidence of the debt, and instruments of writing for the payment of money, precisely in the same sense as in the case of a bond or note. That a valid donatio mortis causa may be made of a bond, a mortgage, or a note, payable to bearer, is conceded, and the same must therefore be conceded as to an ordinary deposit book; but it is contended that the principle does not apply, where, as in the present case, by the terms of the deposit a transfer on the books of the institution was required in order to vest the title in the donee. In general, compliance with rules of this character is necessary only for the purpose of establishing the relation between the corporation and the assignee, and want of compliance does not affect the validity of the transaction as between the original parties or persons claiming as volunteers under them: Tidewater Pipe Co. v. Kitchenman, 108 Pa. 630; United States v. Vaughan, 3 Binn. 394, and a gift mortis causa, in view of its conditional character, would seem to be one to which this doctrine would be especially applicable. The delivery of a deposit book with the express intention of passing an ownership which is not to take effect indefeasibly until the death of the donor, manifests the purpose of the latter unequivocally and in the only manner consistent with the nature of the gift; and against such manifestation his personal representatives, where the estate is free from debt, ought not to be permitted to set up as a reason for defeating the gift, a regulation of the bank which does not concern them in any manner. The principle governing the case is settled, however, by the decisions with regard to gifts mortis causa of unindorsed notes drawn to the order of the donor, the validity of which, though the law was at one time supposed to be to the contrary, is now .well settled. The point was first decided in Rankin v. Wegulin, 27 Beav. 309, which was followed in England, in 1859, by Veal v. Veal, 27 Beav. 303; in 1880 by Austin v. Mead, L. R. 15 Ch. Div. 651, and in 1884 by Clement v. Cheesman, L. R. 27 Ch. Div. 631; and in this country by numerous cases: Grover v. Grover, 24 Pick. 261; Bates v. Kempton, 7 Gray 382. Irrespective, therefore, of express decisions upon the point, and notwithstanding the very able argument of counsel for the exceptants, we should be forced to the conclusion that the gift in this case was valid, in spite of the regulation of the saving fund with regard to the steps required to perfect the legal title of transferees; but the'precise question seems to have been decided in numerous cases: Curtis v. The Portland Saving-Fund, 77 Me. 750; Brown v. Brown, 18 Conn. 410; Pierce v. The Boston Saving Fund, 129 Mass. 425; Hill v. Stevenson, 63 Me. 364; Tillinghast v. Wheaton, 3 R. I. 36. A contrary conclusion was reached by the Irish Court of Chancery in Mc-Gonnell v. Murray, Ir. R. 3 Eq. 460, and by the Supreme Court of Kentucky in Ashbrook v. Ryan, 2 Bush. 228; but these cases appear to stand alone and are opposed in principle to Duffield v. Elwes, Veal v. Veal, and to the general current of authority. See note to Story’s Eq., § 607 c. The exceptions are dismissed, but as the gift falls within the express terms of the act of 1826, it is subject to the payment' of collateral inheritance tax, which is awarded accordingly. Thereupon the exceptant took this appeal, assigning the dismissal of the exceptions and the confirmation of the adjudication as error.
122 Pa. 191Fulmer v. Williams (1888)
ERROR TO THE COURT OF COMMON PLEAS OF LEHIGH COUNTY. No. 189 July Term 1886, Sup. Ct.; court below, No. 55 January Term 1884, C. P. On December 11, 1888, an action in case was begun by David Williams against Henry Fulmer. The narr filed averred that the plaintiff was the owner in fee of a parcel of land near the borough of Slatington, bounded on the east by an arm or branch of the Lehigh river, upon which he had erected and for many years maintained and operated a factory for the manufacture of school slates, and that he had “ and ought to have the use and benefit of a certain water course or branch of the river Lehigh running to the factory aforesaid for water power and other purposes.” The first count then charged that the defendant, being the owner of land immediately adjoining the plaintiff, and above him, did engage in the quarrying and dressing of roofing slate from a certain quarry found on his land, and in conducting his said business he had dumped and thrown large quantities of rock, rubbish and refuse slate into said water course along his lands and immediately above the property of the plaintiff, thus forming a large bank or barrier of rubbish in the channel, forcing the water away from the plaintiff’s property and diverting its usual course, so that the volume of water had been so much decreased that the plaintiff could no longer operate said factory by water power, as he was wont to do before said barrier was formed, and he was deprived of the use of the said water course for that and other purposes, and could no longer enjoy the same as of right he should and ought to do. The second count set forth the ownership by the plaintiff of his lands described, and that he had used and had “ and ought to use and have the benefit of a certain stream of water, or water course, which- extends itself through divers parts and parcels of the said land;” and charged that the defendant “ the stream and course of water aforesaid, did dam up, stop, obstruct and from its ancient course in which it used to run, did divert and cause to be diverted.” Special pleas were filed by the defendant. At the-trial on January 14, 1886, it was shown that by the act of March 9, 1771, 1 Dali. L. 553, it was provided that the rivers Delaware and Lehigh and parts of Neshameny creek, should be common highways, for the purposes of navigation, and, by § 4, that no person should “ presume to divert, lead or draw at any time or times, by any race or other device, any water of the said rivers or either of them out of or from its natural course or channel, for the use of any mill or water works.” By act of February*27, 1798, 3 Sm. L. 311, the governor was authorized to incorporate a company for the purpose of improving the navigation of the river Lehigh. The same authority was again given by the act of March 22, 1814, 6 Sm. L. 180. By § 8, act of February 13, 1822, P. L. 21, it was provided that the Lehigh Coal and Navigation Company “ shall have the privilege, and be entitled to use all the waters of the said river, sluices, canals, and other devices, to propel such machinery as they may think proper to erect on the land they may previously have purchased from the owner and owners, or to sell in fee simple, lease or rent for one or more years the said water to any person or persons, to be used in such manner and on such terms as they may think proper: Provided, it be so done that it will not at any time interrupt or impede navigation.” The plaintiff introduced evidence to show that though he had never procured a lease from the Lehigh C. & N. Co., yet negotiations had been pending for some time to that end, and that company had knowledge of-his use of the stone-row dams erected by him. He also introduced evidence of malice on the. part of the defendant. The nature of the contest being shown by the narr and the legislation referred to, the facts and the questions which arose' sufficiently appear from the charge to the jury, Albright,. P. J.: It appears that at the time this suit was brought, and for' many years before that time, the plaintiff was the owner of a' piece of real estate in the borough of Slatington, on the shores of the Lehigh river; that on it lie had a factory for the manufacture of articles from slate, which was at one time operated by water power derived from the Lehigh river alongside of his manufactory. In September, 1882, Mr. Fulmer, the defendant, became the owner of a tract of land, also on the banks of the Lehigh river, adjoining the tract of Mr. Williams on the north,, which is up the stream. On that tract there was at that time,, and had been for years previously a slate quarry. The rubbish from the quarry was deposited between the quarry and Lehigh river. The plaintiff alleges that the defendant, after he became the owner of the slate quarry property and before-the bringing of this suit deposited rubbish from the quarry, consisting of earth, stones and offal of the slate, into the Le-high river, and thus obstructed the flow of the water, and impaired and in part destroyed the water power, which the plaintiff had enjoyed there before. It appears that the portion of the Lehigh river, which specially comes into question here, is a branch or arm of it, which flows between the shore at Slatington and an island which is in the river there. The plaintiff’s property is directly opposite the island, and that of the defendant is partly opposite it. The alleged dumping place is perhaps nearly opposite the head of the island, and the defendant’s land extends further up the stream. It appears that the main channel of the Lehigh river is on the east side of the island. The plaintiff has shown that he is also the owner of the island, but I do not see now that that ownership by him will affect the case as presented; still it can be borne in mind and perhaps will enable you to understand certain portions of the testimony better than you otherwise could do. Under the law the rights of these parties are different from what their rights would be if their land was upon an ordinary stream of water, which flows through people’s land. The Le-high river more than a hundred years ago was declared to be a public highway, and by the same enactment persons were prohibited from taking any water out of the stream for mills or water works. Ordinarily, where one man owns land on one side of a stream, and the stream is a boundary of Iris land he owns to the centre of that stream, but in the case of a public highway, such as the Lehigh river, the rule is different. The stream itself being a public highway belongs to the public. It appears that somewhere about the year 1822 the state, by legislative enactment, granted to the Lehigh Coal and Navigation Company the right to improve and navigate the Lehigh river, and also granted them the right to the use of the water for water power purposes. That corporation is still a living corporation, and exercises rights over the Lehigh river. In the case of a navigable stream, the man who owns land along the stream, and whose land is described as bounded by the stream has absolute title to high-water mark, and between high- and low-water mark he has a qualified title to the ground. Between high- and low-water mark he has a right to the land subject to the right oí the public, and by that is meant the right to navigate the stream. It is not unlawful for one who owns land on the shores of the river to make use of the ground between higli- and low-water mark, (at least not as against any other private citizen who complains,) unless it appears that such use of the space interferes with the navigation of the stream. The use of the ground between high- and low-water mark, as it is said the plaintiff made of it, (and it seems the defendant also made use of. it by dumping into the stream,) cannot he made a ground of complaint here, beeause neither of these individuals, as private citizens, can complain of that, and the commonwealth is not complaining of it, nor is the navigation- company complaining of it. Hence we say to you, that as against the defendant the plaintiff had a right to the river and its bed between high- and low-water mark, and any benefit or advantage that was to him, or any right of property he had in that, he was entitled to as against Mr. Fulmer the defendant. On the other hand we say to you, that so far as Mr. Fulmer dumped into the stream, not beyond low-water mark, he cannot be held liable for it in this action, even if that did affect the water power of Mr. Williams. And then, inasmuch as neither the state nor its grantee, the navigation company, conferred upon Mr. Williams the power to erect a dam or dams in the Lehigh river, it must he held that he had no property in the dam, nor in the water power which the dam or dams created. The dam at the factory of the plaintiff extended across the arm of the stream, and that arm is also a public highway, and necessarily, if it was beyond low-water mark he had no property in it; the row of stones which was thrown up from the head of the island by Mr. Williams, part way across to the east shore, in that also he had no vested right, because it is in the stream, which is a public highway. The claim of the plaintiff here, so far as this right is concerned, is, that the defendant by dumping rubbish into the stream beyond low-water mark interfered with the flow of the stream, so that the use of the water as a water power, which the plaintiff might have made of the water between high- and low-water stage, was interfered with. When we speak of high- and low-water mark we mean the elevation of the water at ordinary stages of high- and low-water. By low-water mark is not meant the lowest stage of the water in great drought, but it means the height of the water along the shore when the water is at an ordinary stage; and by high-water mark is meant the line to which it extends where it is ordinarily high, and does not mean the greatest freshets that may occasionally occur. Has the plaintiff satisfied you from a description of his ground and the shore as it is there, or was there, at the time this suit was brought, that the flo\v of the water between high- and low-water mark was of value to him as a water power. Of course, it would not be valuable when the water was low, because then there would be no water in that space, but it might be that when the water was higher it was of use to him. It may be that the water there between high- and low-water mark would not furnish a power at all seasons, but only at some seasons, and if it did so it was of value to the plaintiff then. It was explained to you how the shore shelved at that point directly opposite the plaintiff’s factory. The bank there,, or just above, I believe is rather abrupt, but at one point there is a slate rock, as I understand the testimony, shelving out into the stream, and I believe it is said there was a natural flow or ripple there; that a bed of slate extended across the stream. From the description of the property there, you will determine whether it is proved that the water power which was valuable between high- and low-watei- mark existed and was of value to the plaintiff. If that is not shown then the plaintiff has not established that any right of his was invaded. In that event you would find a verdict in favor of the defendant. If you find that there was a water power there in the-way I have mentioned, and that it was of value, and that the-defendant by dumping refuse into the stream beyond low-water mark deprived the plaintiff in whole or in part of that right and property, then the plaintiff is entitled to recover. . . . The contention of the defendant is that the plaintiff had no-water power or anything else of value along his property between high- and low-water mark; and in the second place he contends that there was nothing done by the defendant which interfered with the plaintiff’s right, if he had one. It is contended that there was no material filling in of the stream by Fulmer in his time, and it is further contended that if tliero was, it had. been partly filled in by Williams, while he still owned the property, because he owned it before Fulmer obtained it, and that therefore the defendant ought not to be held liable. When you reach this point you will, of course, consider whether there was a filling in by the defendant beyond low-water mark, because as I have already said to you, to the extent of low-water mark he had a right to fill in, so far as Mr. Williams is concerned...... If you conclude the plaintiff is entitled to a verdict, you will consider how much the plaintiff’s property up to the time srrit was brought was worth less than it would have been but for the unlawful acts of the defendant. If you find that the injury to his property was permanent, you may also consider what it would cost to remove the rubbish, which the defendant placed into the stream unlawfully beyond low-water mark, out of the stream, and to give the plaintiff the benefit of the water as he had it before, and as he may have been entitled to it; and if you do find for the plaintiff you will find for him the lower of these two sums. In the opinion of the court, if the plaintiff is entitled to recover in this case, he is entitled to recover only as much as will compensate him for his damages occasioned by the defendant, or that will make him whole. In certain actions of tort, trespasses, and the like, a jury may in addition to awarding to the plaintiff that which will compensate him add a further sum as punishment, which further sum awarded as damages is what we call in law exemplary or vindictive damages. It has been argued here that the defendant acted recklessly and maliciously, and in disregard of the plaintiff’s right, with the intent to injure him, and that from that you might infer, gentlemen, if you find for the plaintiff, that you might add a sum to punish the defendant. The act done by the defendant, if he did an unlawful act, was the making or erecting of what we call a public nuisance; that is, he put that which worked harm and inconvenience into a public highway, — the Lehigh river, — and for that act, if it was unlawful, he could be punished in a public prosecution on the complaint of the commonwealth. Any private citizen, who has special injury and who can show special damages, may bring a suit against the wrong-doer in such a case, but in the opinion, of the court he can recover only the damages actually sustained, and if there is to be a punishing of the wrong-doer, that punishment must be inflicted in a suit by the public and not by a private individual. But where there is a public nuisance committed and any citizen can show that he had special damages in consequence of a wrong act, he may recover for that injury. And so as these questions affect the plaintiff’s case, I say to you that if you find that the defendant did that which was unlawful by obstructing the Lehigh river beyond low-water mark, and that David Williams was specially damaged, and he has shown what those damages are, he may recover them in this action. The points which have been submitted by counsel are numerous and refer to many phases of the case so far as the law is concerned, and it is believed that after the points have been read and answered, they together with this charge, will be all the instructions you require. „ [Perhaps another matter that ought to be referred to, is, that if you should find that the plaintiff is entitled to recover; that the injury to his real estate up to the date suit was brought was permanent, and that you will adopt the damages to his factory and real estate as the measure of damages, then you should be cautioned as to how to view the evidence on-that point. You would then consider, if the plaintiff had any rights to the water power there, under the law as it has been stated to you, that it affected the value of the manufactory, and consequently the real estate on which it was located. If you come to consider the amount of the damages estimated upon that basis, then you will consider how much the property was worth in the market at a fair sale affected by the injury, and how much it would have been worth at the same time if the injury had not been done. You are not to consider as a rule for estimating the damages purely how much it would cost per day or per year for an engineer, and to buy the fuel, which it seems was done after the water power is alleged to have failed; but you are to consider and find, if you reach that point, and if the evidence gives you the data to find it from, how much the factory and real estate of the plaintiff was worth in the market at a fair sale less than it would have been were it in the same condition as it was before.] 12 The plaintiff requests the court to charge the jury [inter alia] : 1. As the owner of a tract of land adjoining the Lehigh river, the plaintiff’s title is absolute to high-water mark. Between high- and low-water mark he owns the soil subject to the right of the public to pass over it for purposes of navigation when the space is covered with water. He has the light to use this space for all lawful purposes that do not interfere with the rights of navigation. Owners or occupiers of land, above or below, have no right to place obstructions in the stream below ordinary low-water mark that will operate to divert the waters from that part of his land which lies between high- and low-water marks. If by such unlawful obstruction, and as a direct consequence thereof, an injury is done to such other riparian owner, and he suffers special damages, beyond the mere injury to the public, he can maintain an action and recover for the special damages suffered by him. Answer: Affirmed.1 -IK- ?K -*■ The defendant requests the court to charge the jury [inter alia] : 1. The title to the water and soil of the Lehigh river below low-water mark is in the commonwealth, and the plaintiff cannot maintain an action for any encroachment upon them, or obstruction to the navigation of said river, unless he has averred and proved some special, particular damage resulting from the violation of his legal rights in the obstructed highway. Answer: Affirmed. 2. The plaintiff, by reason of being the owner of the bank of the Lehigh river, has no property or special interest in the waters of said river. He does not, from the mere circumstance that he is the owner of part of the bank, acquire any special or particular interest in the stream, over any other member of the public. To him riparian ownership brings no greater rights than those incident to all the public. Answer: Negatived.4 8. As the plaintiff has no special individual property in the waters of the Lehigh river, and as the right to have the water of said river flow along his lands is not an appurtenance to his title as owner of the bank, he has no legal right to have the water flow along his property; and if such ordinary flow of the water is impeded or obstructed he cannot maintain an action therefor, unless he can show that his use of the river as a navigable highway has been interfered Avith by the defendant. There being no such evidence in this case the verdict must be for the defendant. Answer: Negatived.5 6. The test of nuisance is not injury and damage simply, but injury and damage resulting from the violation of a legal right of another. Before, therefore, the plaintiff can recover he must establish, by the weight of evidence, that he had a right to and in the waters of the Lehigh river as a public navigable highway, and that the defendant has done some act that interfered with Ms use and enjoyment of the same as a public highway. Answer: Negatived; this proposition seems to exclude his rights between high- and low-Avater marks, and to confine his interest in the stream to purposes of navigation.6 7. The obstruction of a navigable river is a public not a private wrong; such obstructions may affect those near it more than the rest of the public; but the damage sustained by those near it differs in degree only, not in kind. It is a Avrong, therefore, (if it be one,) to be redressed by a public prosecution, not by recovering damages in a private action. Answer: Negatived.7 15. If the defendant encroached upon the bed of the Lehigh river, below loAv-water mark, by dumping rubbish in it from his quarry, no one but the state can complain of it, unless they can show that their use of the river as a public navigable highway has been obstructed and interfered with. Answer: Negatived; this proposition seems to confine plaintiff’s interest in the stream to purposes of navigation.10 The verdict of the jury was in favor of the plaintiff for $6,831.81. A rule for a new trial having been discharged, judgment was entered, when the defendant took this writ and assigned as error inter alia: 1. The affirmance of plaintiff’s 1st point.1 4-7. The refusal of defendant’s points.4 t0 7 10. The refusal of defendant’s 15th point.10 12. The part of the charge embraced in [ ] 18
122 Pa. 210Berry v. Watson (1888)
ERROR TO THE COURT OE COMMON PLEAS OE WARREN COUNTY. No. 62 January Term 1887, Sup. Ct.; court below, No. 48 September Term 1883, C. P. Forest county; No. 47 June Term 1886, C. P. Warren county. On July 11, 1883, an action of ejectment was begun by Peter Berry, J. M. Clapp, W. T. Scheide, J. L. Grandin and E. B. Grandin against L. F. Watson, John S. Davis, Michael Murphy and John Galey, to recover 25 acres and 80.6 perches of land in Howe township, Forest county. The plea was, not £>xiiity. . At a trial on December 16,1884, there was a verdict in favor of the plaintiffs. Subsequently a new trial was granted. On March 18, 1886, a change of venue was ordered to Warren comity. On July-3, 1886, a second trial resulted in a verdict for the plaintiffs. Afterwards, a new trial was granted. At a third trial on February 7, 1887, the plaintiffs showed title to tract 4821, lying immediately south of tract 4792, upon the dark plan below, and claimed the land in dispute to be within the west line of their tract. The defendants showed title to tract 3133, lying immediately south of tract 3142 on the same plan, and claimed the disputed land to be within the ea'st line of their tract.' At the foot of the north and south line between 4792 and 3142, there is a chestnut. This chestnut has upon it three marks, one facing north, another east and another west, and it is called, in the case, the easterly chestnut. Ata distance of about 19.3 rods nearly west of the foregoing tree, stands another chestnut which has four marks upon it, one pointing a little east of north, a second a little south of east, a third a little west of south and a fourth a’little north of west. This chestnut was' called in the case the' westerly chestnut. The plaintiffs contended that the westerly chestnut was the northwest corner of their tract 4821, from which corner, their south line was run: the defendants contended that tract 4821 was bounded by a west line run south from the easterly chest- nut. The question submitted to the jury was, where was the west line of tract 4821 located on the ground by the original survey ? The warrants for a large number of tracts, including those referred to, were issued in the spring of 1794, and in September of the same year were located in one block by John Brodhead, the deputy surveyor. The returns of 3133, 4821, 3142, 4792, all call for a common corner at a chestnut. 3142 calls for a white-oak at its southwest corner; for 3133 on the south, and for 4792 on the east. 4792 calls for 4821 on the south and 3142 on the west. The method of accounting for the two marked chestnuts is illustrated by the plan shown on the following page: See Opinion of the Court. Other facts appearing in the case are shown in the charge to the jury, Cummin, P. J., 29th judicial district, holding special term: * * * * * * * * The plaintiffs in this case have shown title to the tract of land known as 4821, shown upon the maps. They have shown title to no other land, and if they are entitled to your verdict in this case, it will be because they show to you that the land in controversy is a part of 4821; if it is not a part of 4821, no matter who owns it, these plaintiffs cannot recover. The defendants show title to tract 8133, which lies west of 4821, and. of course if this strip or piece of land in dispute belongs to 3133, then it does not belong to 4821, and your verdict must be for defendants. It is not necessary, however, in order that the verdict should be for defendants, that they should show title in them. If the plaintiffs do not show title in them to the land in dispute, then the verdict must be for the defendants. ****** * * [After general instructions as to the methods of executing warrants of survey issuing in early times from the land office, and the principles to be observed in finding the lines as they were established upon the ground, the court proceeded:] The plaintiffs request the court to charge: 1. The survey of tract 4821, having been returned and accepted without caveat more than 80 years ago, is conclusively presumed to have been made upon the ground. Answer: This point is affirmed. 2. The lines run and marked upon the ground by the surveyor constitute the actual survey, and wherever the calls of the surveyor’s return differ from the work upon the ground, the calls must be disregarded. Answer: This point is also affirmed. 3. There being undisputed lines upon the ground, to the north and west of tract 4821, answering to the return of survey in respect to age and courses, and no other line being found upon the same sides of the tract to which the return can be referred, the return will be presumed to have been made with reference to such lines. Answer: This point is refused; it involves a question which it will be your duty to determine.17 The defendants request the court to charge [inter alia] : 3. The eastern chestnut, being the undisputed southwest coiner of warrant number .4792, and southeast corner of warrant number 3142, is the northwest corner of warrant number 4821 and the northeast corner of warrant number 3133, called for in the official returns of survey of the latter tracts, and must therefore be adopted as the boundary of the plaintiffs’ warrant in the absence of evidence of work actually done upon the ground by the surveyors in locating number 4821 and 8188, differing from and contradicting his return. Answer: This point is affirmed. If there is nothing upon the ground to contradict the statement, it would be true. 4. There is no evidence that the line upon the ground, claimed by the plaintiffs as the division line between warrants number 4821 and 8188, was made by the surveyor as the division line between the said warrants, number 4821 and 8188. Answer : This point is also affirmed.8 In considering this case, you have not only the testimony of the numerous surveyors as to what they found on the ground, but you have their opinions as experts, speaking from their knowledge of surveying and from the facts which they found. You have, also, the maps that have been given in evidence by the parties respectively, and you have the original returns of surveys of all the tracts surrounding this disputed land. And you have the certified connected maps. « -£• *#• $ $ The defendants in this case have in their possession this land in dispute. The plaintiffs claim they are entitled to the possession of it, and have shown you the title to tract 4821, and they claim that this disputed land is within the lines of that tract. If they have satisfied you of this fact, they are then entitled to your verdict. If they have failed to do so your verdict must be for defendants. The land in dispute is a piece or strip of land along the western line of 4821. The trouble that you are called upon now to investigate probably arose in the last century, and it came out substantially under the following circumstances: In 1792, a number of persons who are known as the Holland Land Company obtained a large number of warrants, which entitled them to many thousand acres of land. In 1794 George Mead obtained a large number of warrants for lands belonging to the commonwealth. Although the Holland Land warrants were issued in 1792, no survey was made in pursuance of the warrants until the fall of 1794, as it would appear by the returns. In the meantime, these Mead warrants, which were issued early in 1794, were run upon the ground in April of that year by deputy surveyor Williams; and they were run upon diagonal lines or 45 degree lines. The Holland warrants were run upon the ground on north and south lines by the successor of Williams, the deputy surveyor, John Brodhead. In May, 1794, or at least before the Holland Land Company warrants were surveyed, as it appears by the returns, they filed a caveat against Mead taking up the lands which he had surveyed, claiming that as their warrants were older they had a better right there, and this created a contest in the land office. This contest remained pending until the spring of 1796, and then it was amicably adjusted by the parties, the Holland Land Company, or those representing them on the one side, and Mead or those representing him on the other side ; and a certain line was agreed upon to be the line between the two claimants in the land, and all of the Mead warrants that were northeast of that line were abandoned, except I think part of the tract 5282, and the Holland Land warrants that were south of that line were to be abandoned. And thus that controversy was settled by the agreement of the parties establishing this compromise line, which is spoken of as the Mead base line. The Holland Land Company warrants were laid out on meridian lines, north, south, east and west, and by the parties agreeing to the Mead base line as the line of separation, which was a diagonal line to the other warrants. Wherever the Holland Land Company tracts came to this diagonal line, then different shaped tracts were formed. In some instances they were small triangles, and in other instances they contained more than four lines. It is the location of one of these small triangular pieces adjoining the Mead base line that causes the trouble that you are called upon to settle. Tract 3133, is, as you see, a small triangular tract fitting in at that point. So much of it as comes to 4821, is the piece I call your attention to. The land in dispute, as marked on the map, is represented by the broad red mark on the west side of 4821 on the defendants’ map, and of course the same can be produced on the other maps. On the northeast corner of this, disputed land is a chestnut tree of 1794, called the easterly chestnut. On the northwest corner of this disputed land is a chestnut tree, claimed by the plaintiffs to be of 1794, and called the westerly chestnut. The plaintiffs claim that the westerly chestnut or the line running south from near it, is the western line of their tract, 4821. The defendants claim that the easterly chestnut and the line to run south from it, is the true western line of 4821. Your decision of this question will determine this case. If you find that the north and south line near the westerly chestnut, is the westerly line of tract 4821, then the plaintiffs are entitled to your verdict. And this is the question in this case which you are to decide. Now, gentlemen, you will take the return of survey of 4821 and look for marks and lines made or adopted for that tract by the surveyor who made and returned it. The plaintiffs claim the westerly chestnut or the line near it is the western boundary, because as they say, there is no other line found on the ground that may be used for such a purpose; because as they claim, it bears proper date; the line runs in the proper direction and it preserves the shape of the tract; and the plaintiffs say that the eastern chestnut is not the true corner ; that it was marked for the tracts north of it; that it is only marked on three sides, and that it is not marked on the south side, from whence the defendants claim this line should run, and where there is no line to'be found on the ground. On the other hand, the defendants claim that the westerly chestnut and the line near it is not the true westerly line of 4821. As to that chestnut, they say it never was marked as a corner with three notches ; that it does not stand on any line ; that it is not at the intersection of any lines ; that it is not as near the line nor as near the intersection of lines as many other large trees, and that it has no witness to it; that a witness near it points away from it and not towards it; that it was marked in the fall of 1798 or spring of 1794, before this tract, 4821, was surveyed; that it does not belong to the Holland Land Company warrants, of which 4821 is one ; that it is not marked on the north, south, east and west, but at other points of the compass, nearly northeast and southwest, and northwest and southeast. They claim for these reasons that this tree should not be regarded in establishing that western line. On the other hand, they claim that the easterly chestnut is the true corner of tract 4821, and the line to run south from it would be the true western line. They claim this, because as they say the tree is in the right place; that it is the proper distance from fixed corners to the east of it and to the west of it; that it is the identical tree called for in the return of the survey of this tract, and the others about it; that a line drawn from the south preserves the shape of the tract 4821; that the length of lines more nearly corresponds with the original surveys ; that it better answers all of the calls ; that it is a common corner of four tracts, and thus corresponds with the block of surveys to which it belongs, which is fixed by the returns of surveys. And for these reasons they claim that the eastern chestnut is the true line. And there may be other reasons presented by counsel on both sides that I have not called your attention to, which I do not now recall. These are substantially the claims of the parties, plaintiff and defendant, and the reasons why they claim the easterly chestnut is the western boundary, and why they claim the westerly chestnut is the western boundary. If you .can determine this case by marks and lines on the ground, made and run for this tract of land, or adopted by the surveyor who returned the survey for this tract, it will be your duty to do so. In this investigation you must remember the following important dates: The Mead lands, as appears by the returns of surveys, were surveyed in April, 1794. The Holland Land Company lands, as appears by the return of surveys, were made in September, 1794. One in April and the other in September of the same year. The compromise line, now called the Mead base line, was established in April, 1796, two years later. The Mead lands, April, 1794; Holland lands, September, 1794,' and the compromise line in April, 1796. Again, you will recall the facts that the Holland Land Company’s lands were laid out on north, south, east and west lines. The Mead lands were laid on 45 degree lines, diagonal lines to the Holland Land Company tracts. The compromise line is a 45 degree line, diagonal to the Holland Land Company lines. This compromise line of 1796 affected some of the lines of some of the Mead tracts, and some of the lines of some of the Holland Land Company tracts, and made triangular and irregular shaped tracts on the Holland Land Company’s side of the line. No witness has testified to any marks made in 1796, when this compromise line was established. Generally, the evidence is that all the marks were made in the spring or summer of 1794: that they include the growth of the year 1794; while the returns of the surveys of the Holland Land Company’s lands declare that they were surveyed in September of that year and the compromise was not established until two years afterwards. Consider all the evidence in the case, and from it alone determine whether you can find the true western line of tract 4821. If you can do so, it will be your duty to return your verdict in accordance with such finding. [If you can determine this question by marks and lines on the ground, made or adopted for this tract, that is the highest and best evidence of its true location, and must prevail. If you cannot otherwise determine the question submitted to you, and are compelled to look to the calls alone, it will not be a difficult question for you to solve. It seems to me, if this question is to be determined alone by the calls as found in the returns of survey, and the certified connected drafts, you will find that the northwestern comer of 4821 is the common corner of the four tracts, 3142, 4792 and 3133 and 4821. And if you so find, your verdict will be for the defendants.] 6..... The verdict of the jury was in favor of the defendants.. A rule for a new trial being refused, the plaintiffs took this writ, and assigned for error, inter alia: 2. The answer to the defendants’ fourth point.8 6. The part of the charge embraced in [ ] 6 7. The answer to the plaintiffs’ third point.7
122 Pa. 228Citizens Pass. Ry. Co. v. Ketcham (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY. No. 170 July Term 1887, Sup. Ct.; court below, No. 179 'September Term 1885, C. P. No. 2. On October 28,1885, a summons in case was issued by Mary E. Ketcham, who sued in behalf of herself as widow, and of Laura Ketcham, the only child of George H. Ketcham, against The Citizens Passenger Hallway Company, to recover damages for in juries resulting in the death of the husband through the alleged negligence of the defendant company. At the trial on January 21,1887, the facts appearing were as follows: The defendant company operates a passenger railway running north on Eleventh street and south on Tenth street. The act •of March 25, 1858, P. L. 1.68, incorporating the company provides : Section 8. The said company, in constructing said road, shall conform to the grades now established, or hereafter to be by law established, of the several streets and avenues traversed by said road, and keep said streets and avenues in perpetual good repair at the proper expense of said company. Portions of certain city ordinances are as follows: Section 3. AH railroad companies as aforesaid, shall he at the entire cost and expense of maintaining, paving, repairing and repaving that may be necessary upon any road, street, avenue or alley occupied by them.....Ordinance, July 7, 1857. Section 3. Whenever it shall be found necessary for the city of Philadelphia to occupy all or any portion of any street or highway, whereupon a passenger railroad now is, or hereafter may be constructed, for the purpose of making improvements thereon, such as culverts, laying of water or gas pipes, or any other alteration or improvement that may from time to time he found necessary, the said city shall have fitll and entire power and authority to make such alteration or improvement without recourse on the part of any railroad company against the said city, for any obstruction or embarrassment the said railroad company may meet with, consequent upon such alteration or improvement.....Ordinance, April 1, 1859. Ordinances of October 5, 1863, April 26, 1873, and May 6, 1876, were also given in evidence; also the ordinance of June 27,1883, a portion of which is as follows: Section 1. That from and after the passage of this ordinance, all parties opening the streets of Philadelphia, for the purpose of making connections with the sewers, gas, or water pipes, or for laying gas or water pipes, sewers, drains, conduits, or for any other purpose, shall, immediately upon the completion of the work, have the opening or trench filled and thoroughly compacted by ramming in horizontal layers, not exceeding one foot in thickness ; and if the street be paved or macadamized, at once re-paved or re-macadamized, using the requisite kind and amount of material therefor..... In the summer of 1885 a row of new houses was built on the east side of Tenth street, and it was necessary to connect them with the city sewer, the water main and the gas main. Permits to make these connections were obtained from the city, and in May, 1885, connection was made with the sewer which lies under the east rail of the defendant’s road-way. The connection with the water main lying west of the track was made in August. These connections were made by plumbers engaged on the houses. The gas connections were made by the city officials some days after the connections were made with the water main. On September 5, 1885, the trench, which had been opened to make these connections, had been filled up with earth but not fully re-paved. On the east side of the track, the earth had been rounded up, and the stones thrown loosely upon the top. The testimony was conflicting whether the street on the west side of the track had been restored to good condition; but, extending across between the rails of the company’s track, there was a depression the depth of the cobble stones, and two or three feet wide, where the pavement had not been restored. There was some conflict in the testimony as to who or what had caused the removal of the cobble pavement between the rails of the track. On the afternoon of the day mentioned, George H. Ketcham, who was the foreman for the Commercial Ice Company, was driving a two-horse ice-wagon down Tenth street, as a substitute for the regular driver, who was off duty. It was his first trip. The team was traveling at about the gait of the ordinary horse-car, and when it reached the depression between the rails the horses shied, and the front wheels of the wagon slipped off the raffs into the depression, the shock causing Mr. Ketcham to fall from his seat to the ground on the right side of the wagon. The wheels passed over him, whereby he received such injuries that he died the same day. The court, Hare, P. J., charged the jury and answered the defendant’s points as follows : [The defendant contends that the accident was due to the neglect of the builders of the houses, who tore up the street for the purpose of putting in gas and water, and consequently that it is not answerable in point of law and I should so instruct the jury. It seems to me that the defendant has taken away that portion of the defence by evidence that the excavation made by the builders was filled up on the west side of the street, and the street left in good order by them, with the exception of the east side, and if this is so, and the accident was due to the condition of the west side of the street, arising from the subsequent use of the street for traffic, the principle contended for by defendant does not apply.] 1 The following points are presented on the part of the defendant : 1. A street railway company is not liable for damages resulting from the digging of a trench in the public streets, under a license from the corporate authority, for the purpose of making a connection with the main conduit pipe for distributing water to the inhabitants, and from the same not being properly filled up. Answer: The defendants are not answerable for the injury arising from the digging of such a trench, nor from the failure to fill it up or re-pave, so long as the work remains in the hands of the contractors, but if after they have restored the street to its ordinary condition it becomes out of repair by subsequent use and the defendants are negligent in not repairing it and an injury follows, they may be answerable.8 2. Where excavations are made for private benefit, and are done at private expense, only the persons who made them ox-caused them to be made are answerable for any injury that may be occasioned. Answer: This is covered by my answers to the first point.3 3. If the jury believe that the injury was occasioned by the negligence of the plumber who was engaged in putting in pipes under license from the city of Philadelphia, there can be no recovery from the railway company. ’ Answer: I affirm that point; but if, after his negligence ceased to operate, the railway company are negligent, they may be answerable.4 5. The uncontradicted evidence in this case being that the holes in the street were caused by persons engaged in the erection of a row of houses on the east side of Tenth street, the railway company was not liable for any accident caused thereby, and your verdict should be in their favor. . Answer: I decline this point.5 6. If the driver of the ice wagon contributed to the injury by driving his wagon at a canter along this street, there can be no recovery in this action. Answer: I decline to affirm that point. It would depend on how fast the canter was. If it was too fast for prudence in view of the circumstances, then I affirm the proposition. Whether it was too fast in view of the circumstances is for the jury.6 7. On the whole evidence in this case the verdict should be for the defendant. Answer: I decline to affirm this point.7 The verdict of the jury was for the plaintiff for $10,000. A rule for a new trial was subsequently discharged and judgment entered, when the defendant took this writ, assigning as error: 1. The charge of the court embraced in [ ] 1 2-7. The answers to the defendant’s points.3 t0 7
122 Pa. 239Herster v. Herster (1889)
No. 159 January Term 1888, Sup. Ct.; court below, No. 92 February Term 1885, C. P. On October 19, 1887, the remittitur in Herster v. Herster, 116 Pa. 612, was filed in the court below, showing the reversal of the judgment with a venire de novo. At the second trial of the cause, on November 21, 1887, the parties and the pleadings remained the same.
122 Pa. 266Ayars v. Westfield (1889)
No. 3 July Term 1888, Sup. Ct.; court below, No. 4 May Term 1888, C. P. in Equity.
122 Pa. 285Shoemaker v. Harrisburg (1889)
EBBOB TO THE COTJBT OE COMMON PLEAS OE DAUPHIN COUNTY. No. 15 May Term 1888,* Sup. Ct.; court below, No.'358 January Term 1888, C. P. On December 5,1887, a scire facias sur municipal lien was issued in favor of tbe city of Harrisburg, for use of the Barber Asphalt Paving Company, against George J. Shoemaker, Mrs. M. Weightman, Mrs. Rose Scheffer, George E. Shoemaker, Mrs. Annie R. Evans and L. C. Shoemaker, owners or reputed owners. The lien, as filed the same day to No. 1113 Municipal Tax Lien Docket, was “ for paving and curbing Market street from Front street to the Pennsylvania Railroad Company ; entered and filed in accordance with the act of the general assembly entitled ‘An act dividing cities of this state into seven classes,’ etc., etc., approved May 24, 1887: Date of assessment, August 8, 1887, for the sum of $1,192.44, interest from September 29, 1887: assessed against the following described property: ” etc. The defendants pleaded, “ no lien, nil debet, payment with leave,” etc. At the trial on March 1, 1888, the facts shown, so far as necessary to be given, in view of the decision of this court, were as follows: The city of Harrisburg was incorporated by the special act of March 19, 1860, P. L. 175, but, by the act of May 24,1887, P. L. 204, dividing the cities of the state into seven classes, etc., became a city of the fifth class. By par. XI., § 2, article VII., of the act of 1887, power was given to cities of the fifth class to grade, pave, macadamize and curb any public street, lane or alley, and to provide for the payment of the cost and expense of the same by the city, or by the owners of real estate abutting, by an equal assessment on said property in proportion to the number of feet fronting thereon; “ but councils shall not order any street, lane or alley, or part thereof, to be paved or macadamized at the cost of the owners .....except upon the petition of a majority in number of such owners, or upon the petition of the persons owning a majority of the feet front on the street, lane or alley, or part thereof, to be improved, unless the ordinance for such improvement shall have been passed by a vote of two thirds of all the members of each branch of councils, in which case, councils may direct the improvement to be made at the cost of the owners, without petition.” On July 27, 1887, the joint committee on highways, in pursuance of certain ordinances of councils awarded a contract for paving Market street from Front street on the Susquehanna river to the roadway of the Pennsylvania R. Co., with sheet asphaltum, to the Barber Asphalt Paving Company, of Buffalo, 1ST. Y., at $2.75 per square yard, and for granite curbing at $1.50 per lineal foot, where new curbing was required. On August 8th, the select and common councils approved the foregoing action of the highway committee, and on the same day the board of viewers made its schedule of assessments of the cost of paving and curbing the street, by virtue of which the lien in this suit was claimed. The formal contract with the paving company was signed on August 13, 1887; * the work began on August 29th, and was completed on October 26th. The defence made was in substance that the power given by the act was to pave, and not to re-pave ; that in 1832 Market street, before then a dirt road, was graded and macadamized at the public expense,' and afterwards again macadamized with greater completeness and since maintained at the public expense, though without charge at either time against the abutting owners ; that the property of the defendants was not benefited in the least by the re-pavement; and that fatal irregularities existed in the estimates and assessments made and filed and in the ordinances passed. It was also claimed “ that so much of the act of May 24, 1887, as allows the paving, without petition, to be done at the expense of the abutting lot holders, was in violation of § 1, article IX. of the constitution.” By agreement of the parties at the suggestion of the court, the jury returned a special verdict finding the facts, and subsequently on April 3, 1888, the court, McPherson, J., by an opinion citing Washington Avenue, 69 Pa. 352 ; Shoemaker v. Harrisburg, 4 Pa. C. C. R. 86*; City v. Hays, 93 Pa. 72, and Hammett v. Philadelphia, 65 Pa. 146, directed judgment to be entered on the verdict in favor of the plaintiff for $1,216.85, including interest and a penalty of ten per cent, under § 14, article XIX., act of 1887, P. L. 253. Then the defendants took this writ, assigning as error, inter alia: 4. The court erred in entering judgment on the special verdict in favor of the plaintiff.
122 Pa. 289Berghaus v. Harrisburg (1889)
WRITS OP ERROR TO THE COURT OP COMMON PLEAS OP DAUPHIN COUNTY. Nos. 18 and 19 May Term 1888, Sup. Ct. ;* court below, Eos. 352 and 366 January Term 1888, C. P. On December 5, 1887, writs of scire facias sur municipal liens were issued in favor of the city of Harrisburg, for use of the Barber Asphalt Company, against Mrs. C. Berghaus and George A. Klngh, severally, as abutting owners, for paving Market street, claiming of Mrs. Berghaus, #191.43, and penalty, and of Mr. Klngh, #239.07, and penalty. The defendants pleaded severally, nul tiel record, non assumpsit, payment with leave, etc. At the trial of the two cases together on April 10,1888, the facts were essentially the same as those appearing in Shoemaker v. Harrisburg, ante 285, to which reference is made. The court, McPherson, J., charged the jury that “ as we understand this case at present, we think the plaintiff is entitled to a verdict in each case,” and answered certain points presented by the defendants as follows : 6. The expense of paving Market street at the cost of defendants and other abutting lot owners, by the front foot rule, and without any legal notice to them or opportunity to he heard, as attempted by these proceedings, is not due process of law or uniform taxation, as required by the first section of article IX., and §§10 and 11 of article I. of the constitution of Pennsylvania; and by the V. and XIV. amendments to the constitution of the United States. Answer: Refused.18 7. The statute under which the claim is made to tax the abutting lot owners, for the whole cost of paving Market street, is local and special legislation in violation of § 7 of article III. of the state constitution. Answer: Refused.19 10. On the whole case the verdict must be for the defendants, and the court is requested so to say to the jury. Answer: Refused.81 Verdicts were rendered for the plaintiff, for $216.69 against Mrs. C. Berghaus, and for $276.62, against George A. Klugh. Judgments having been entered, the defendants took these writs, assigning as error, inter alia: 18. The answer to the defendants’ 6th point.18 19. The answer to the defendants’ 7th point.19 21. The answer to the defendants’ 10th point.81
122 Pa. 291Koehler v. Beeber (1889)
EBBOB TO THE COUBT 03*' COMMON PLEAS OE SOMEBSET COUNTY. No 352 January Term 1888, Sup. Ct.; court below, No. 393 February Term 1884, C. P. On February 15, 1884, upon a “ Statement of the Condition of Company ” between May 14, 1880, and October 8, 1881, purporting to be filed in accordance with the provisions of § 11 of the act of July 26, 1842, P. L. 426, verified by the affidavit of J. A. Beeber, receiver of the Lycoming Fire Insurance Company, of Muncy, Pa., judgment was entered in the court below in favor of John A. Beeber,* receiver of said company, against August Koehler, “ to create a lien to secure payment of a balance of $275.40 of the deposit note of August Koehler, No. 1003, given for five years insurance, commencing May 6,. 1880,” on a property described. On February 25, 1884, the defendant in said judgment filed an affidavit, under § 56, act of May 1, 1876, P. L. 53, averring that the plaintiff had not filed a statement of the amount of premiums received and the manner in which the money of the company had been expended, as required by the statute; that his proportion of the loss for which the assessment was levied had been paid, and the assessment claimed, twenty per cent upon the amount of the note, was for more money than was necessary to pay the losses and necessary expenses of the company ; praying the court to open said lien or judgment, and allow the defendant to make a defence. Thereupon it was ordered that the judgment he opened for the purpose prayed for, the lien thereof to remain. At the trial of the issue (the form of which and the pleadings did not appear upon tlie paper books), on December 18, 1885, it was made to appear that tlie Lycoming County Mutual Insurance Company was incorporated by the act of March 20, 1840, P. L. 180, and by said act subjected to the provisions of the act of April 13, 1838, P. L. 363, incorporating the Bradford County Mutual Insurance Company, the 5th section of which provides : “ Every person who shall become a member of said corporation by effecting insurance therein, shall, before he receives his policy, deposit his promissory note for such sum of money as shall be determined by the directors; a part, not exceeding ten per cent of said note, shall be immediately paid, and the remainder of said deposit note shall be payable in part or the whole, at any time when the directors shall deem the same requisite for the payment of losses by fire, and such incidental expenses as shall be necessary for transacting the business of said corporation.” Subsequently, by decree of the Court of Common Pleas of Lycoming county, on April 26, 1870, the name of the company was changed to Lycoming Fire Insurance Company. It also was shown that on May 6,1880, August Koehler, the defendant, had received from the plaintiff company a policy of insurance upon a certain tavern and dwelling-house, for the term of five years from that date, giving the company his premium note for §>324, payable “in such portions and at such time or times as the directors of the said company may, agreeably to their act of incorporation, require.” Upon this note defendant had paid two assessments. On October 8, 1881, the company was dissolved by the decree of the Court of Common Pleas of Lycoming county, and on November 12, 1881, upon further proceedings in said court to No. 37 January Term 1882, the receiver was authorized to levy an assessment upon all outstanding premium notes, and upon those in force October 8,1881, twenty per cent upon the amount thereof. Said assessment had been made before the entry of judgment in this case. Upon the offer of proof of the foregoing proceedings, the decree of dissolution and of the authority for and the making of ■said assessment, the defendant objected, inter alia, that the plaintiff had failed and neglected to prepare and file a sufficient statement under § 11, act of July 26,1842. The objection was overruled and offer admitted.1 The defendant introduced evidence upon which he asked the court to charge the jury that if they should believe that he was induced to insure with the plaintiff company on representations by John Hicks, their agent, to defendant, that it was a number one company, the best in the United States, worth $5,000,000; and that the agent, Hides, was. induced to make these representations by the company, through published advertisements on their blank policies and other papers, and that the said company was not in fact a number one, or a solvent company, but in fact an insolvent company, then the verdict must be for the defendant. Not answered by the court.8 Upon the close of the evidence, the court, Baek, P. J., in-, structed the jury that the plaintiff was entitled to recover the amount of the premium note in suit, less the amount paid as assessments thereon, “the finding to be subject to the opinion of the court on the reserved question of law whether, on all the evidence, a judgment should be entered afterwards in favor of the defendant non obstante veredicto.” The jury under these instructions returned a verdict for the plaintiff for $275.40, subject, etc. Thereupon the defendant filed a motion for judgment in favor of the defendant non obstante veredicto. Negotiations then intervened for a settlement, and on September 1, 1886, by leave of court, a second statement was filed under § 11, act of July 26, 1842, P. L. 426, “‘of the amount of premiums received and the manner in which the money of the company has been expended’ between the 14th day of May, 1880, and the 8th day of October, 1881, the time covered by the said assessment filed,” etc. This statement covered seventeen pages, and embraced 1237 items, 844 of which were of amounts expended for loss and damages by fire, separately and distinctly stated with the name and residence of the assured and the amount due each, but without dates when the losses occurred, aggregating $125,380.70. 23 items were for claims paid to banks on obligations given by the company to pay losses, but without dates, 86,864.28. 42 items were for officers’ salaries, with the statement that “ more than half of the above officers’ salaries were earned before May 14, 1880, and not before paid,” aggregating, 34,462.47. The statements of other items were made in the same manner. On November 30, 1886, the court filed an opinion overruling the motion for judgment non obstante veredicto, and directing judgment to be entered on the verdict.8 The opinion closed: But as one of the objects of the issue, though not made to formally appear was also to test the right to execution, we do now, on the authority of Aycinena v. Feries, 6 W. & S. 247, enjoin the issuing of any execution, on the ground that the statement on file at time of suit and in evidence is insufficient under the law relating to the case to warrant execution, and no ruling is made on any subsequent paper filed. Judgment was then entered upon the verdict as rendered. On December 20, 1886, the plaintiff filed a petition which, inter alia, called the attention of the court to the second statement filed on September 1, 1886, insisting that the same fully met the requirements of the third proviso of § 11, act of July 26, 1842, and the rulings of the Supreme Court in Barker v. Beeber, 112 Pa. 216, and prayed that he be allowed to issue execution for the twenty per cent assessment, interest and costs. The answer of the defendant, in substance, denied the right of the plaintiff to have execution based upon the statement filed September 1, 1886, after the trial and verdict. On January 27, 1888, the court filed the following opinion and decree: x\fter this case was argued 1 'examined the statement filed, and was of opinion it was not sufficient to warrant execution under the special act governing the case. On a closer examination I have come to the conclusion that I was in error as to the facts, etc., and whatever opinion I may have of the management by the officers, it is still a fact, that plaintiff was a member of a mutual company and hence affected differently from a member of a stock company. Upon the whole, as the case now stands, I am of opinion the statement may be sufficient, and therefore on due consideration leave is granted as prayed for.9 Thereupon the defendant took this writ and assigned as error, inter aha: 1. The admission of plaintiff’s offer.1 2. The refusal of defendant’s point.® 8. The refusal of judgment for defendant, n. o. v.8 9. The order awarding execution.9
122 Pa. 299Commonwealth v. Reyburg (1889)
ERROR TO THE COURT OF QUARTER SESSIONS OF WARREN COUNTY. • No. 228 January Term 1888, Sup. Ct.; court below, No. 28 September Term 1887, Q. S. On September 8,1887, an indictment, based upon a constable’s return, charging that Charles Reyburg, on .September 1, 1887, “ did sell and offer for sale vinous, spirituous, malt and brewed liquors and various admixtures thereof, without first obtaining ” a license therefor, contrary, etc., was found a true bill. The defendant, having been arrested and brought into court, pleaded not guilty, and issue was joined. There was another issue pending upon a like indictment based upon an information made by a private prosecutor. At the trial of the indictments together on December 6,1887, the testimony adduced showed that the defendant “ was running a billiard room, and kept a kind of a lunch counter, and sold cider, ginger ale, and birch beer,” in the village of Sheffield. He had sold several barrels of cider, by the glass, since April, 1887. Intoxicated persons were seen about his place, although the witnesses could not or did not. state where they became intoxicated. One witness, A. J. Delander, drank of the cider: Q. Did it have any effect upon you? A. No; I can’t exactly say that it had any effect upon me; it made me feel kind of numb like. Another witness, Will Bloss, was asked" Q. State what effect it had, if any, upon you ? A. I could not say; I had been drinking cider at Clarendon; I could not tell whether that had the effect upon me, or whether that I got somewhere else; I felt the effect some, I think. Q. In what way did it affect you? A. The same as any other drink, I think. Q. Any other drink of what kind ? A. Whiskey or beer; it made me feel it a little. The other testimony was of no higher degree of. force, and no evidence was offered as to the constituents of the drinks sold. The court, Brown, P. J., charged the jury as follows : [There is no evidence in these cases that the article sold was intoxicating; there is no evidence that it had that effect upon any one who partook of it, or, that it was anything other than the pure sweet juice of the apple.] 1 [And we are compelled to say that there is no evidence in the cases upon which the defendant can be convicted under the provisions of the act of 1887. Therefore we direct a verdict for the defendant.] 8 There are two indictments before you. One is founded upon a constable’s return, and, there being no prosecutor, the only disposition that can be made of it, under the instructions we have given you, would be to find the defendant not guilty, and that the county pay the costs. In the other case there was a private prosecutor, and the payment of the costs in that case, upon finding the defendant not guilty, should be determined by the jury. Under the ruling we have made, the counsel for the prosecution concede that the costs ought not to be imposed upon the defendant, and in our judgment from the evidence, we think they ought not to be imposed upon the prosecutor. This leaves but the one other source for the costs, and that is the county. The jury returned a verdict of not guilty. Judgment having been entered, the commonwealth took this writ and assigned as error: 1, 2. The parts of the charge embraced in [ ] 1 8
122 Pa. 306Commonwealth v. Susq. & Del. River R. (1888)
ERROR TO THE COURT OE COMMON PLEAS OE DAUPHIN COUNTY. No. 6 May Term 1887, Sup. Ct.; court below, No. 243 January Term 1886, C. P. On January 6, 1886, a writ of quo warranto issued against an association called The Susquehanna & Delaware River Railroad Company, upon a suggestion filed by Mr. Attorney General Lewis C. Cassidy, that certain persons therein named since August 22, 1881, were pretending to act as directors of an association called The Susquehanna & Delaware River Railroad Company, and claimed to possess and enjoy the franchises, corporate rights and privileges of The Pennsylvania & New England Railroad Company, a corporation which had been organized on May 5, 1880, under the general railroad act of April 4, 1868, P. L. 62, with power to construct a railroad from a point near Harrisburg, through the counties of Dauphin, Lebanon, Berks, Lehigh and Northampton, to the New Jersey state line ; and averring that the said association and the parties named did not have and never had any corporate rights whatever. On May 24, 1886, the amended answer of Charles H. Mintzer and others, as president and directors of the Susquehanna & Delaware River R. Co., was filed, wherein it was set forth, in substance: That The Pennsylvania & New England Railroad Company, whose lawful existence was by the said suggestion admitted, on June 1, 1880, executed a mortgage upon its franchises and property to secure the payment of 1100 coupon bonds of $1,000 each, payable on June 1, 1910, with interest payable semi-annually on June 1st and December 1st each year, as provided in the coupons attached to said bonds, and that said mortgage was duly recorded in the counties of Lehigh, Northampton, Berks, Lebanon and Dauphin. The following is a provision of the mortgage : And.....if default be made in the payment of any of said coupons, or instalments of interest as aforesaid, by the said company, for a period of one year, it shall be the duty of said trustees, or the survivor of them, or their successors, upon a written request of holders of bonds upon which interest shall remain unpaid, representing bonds to the amount of three hundred thousand dollars ($300,000) then outstanding, to sell and dispose of said mortgaged premises, with the appurtena'nces, by public sale.....giving at least three months’ notice of said sale, the equity of redemption being hereby waived and released on the part of said company, and full authority to sell as aforesaid being vested in said trustees, and apply the proceeds of said sale to the payment and satisfaction of the principal and interest of said bonds, first deducting costs and expenses of sale, and any sums or amounts due the trustees. It was averred further that the said company on June 1, 1881, made default in the payment of interest on said bonds, and afterwards, 18 of said bonds with the coupons attached became the property of Frederick Baker, each of the coupons being for the sum of $30. Payment of the coupons having been refused, suit was brought upon them in the Court of Common Pleas No. 2 of Philadelphia countjr, and on June 25, 1881, judgment obtained against the company for the- sum of $542.25, the amount of the coupons with interest; that thereupon a fieri facias was issued from said court upon said judgment, by virtue of which the sheriff of the county made demand of said corporation at its principal office, and payment being refused, and no personal .property pointed out, a special return was made accordingly; that afterwards, an exemplification of the entire judgment and proceedings thereon was filed in the Court of Common Pleas of Lehigh county, and judgment entered thereon in said county, from which on July 9, 1881, a fieri facias issued directed to the sheriff of Le-high county, upon which writ levy was made, as directed, “ upon the corporate franchises of the said The Pennsylvania & New England Railroad Company, granted May 5, 1880, with all the rights, powers and privileges thereunto belonging, consisting of authority to construct and build, and operate a railroad, commencing in or near Harrisburg, in Dauphin county, and extending northeastwardly through the counties of Lebanon, Berts, Lehigh and Northampton, to a point of connection with the Pennsylvania & New England Railroad at the New Jersey state line, a short distance south of the Delaware Water Gap, about 107 miles in length,” etc., etc.; and that said franchises and property on July 18, 1881, were sold to Damon Y. Kilgore for the sum of $600, the sheriff’s deed therefor afterwards acknowledged, delivered and duly recorded in the said several counties. That, afterwards, to wit, on August 15, 1881, the parties interested in said purchase, and for whom and on whose account it was made, assembled and organized a new corporation, to wit, The Susquehanna & Delaware River Railroad Company, and afterwards, to wit, on August 17, 1881, did file a due and legal certificate of said organization, in the office of the secretary of the commonwealth at Harrisburg, and the commonwealth accepted the same and recognized the said corporation : Wherefore,- etc. To the foregoing answer the attorney general demurred, and prayed for judgment of ouster with costs against the defendants. On September 21, 1887, the court, Simontos, P. J., filed the following opinion: 1. The commonwealth contends that the sale by the sheriff of Lehigh county, of the property and franchises of the Pennsylvania and New England Railroad Company to the persons who thereafter organized themselves as the corporation defendant, which sale is the foundation of their title to be a corporation and to exercise the rights and franchises claimed by them in their answer, passed no title to the franchises and rights of the former corporation, because the first fieri facias on which the return of demand, non payment, and nulla bona was made, having been issued out of and returned to the Court of Common Pleas of Philadelphia county, where the judgment on which it was founded had been obtained, the second fieri facias was not issued out of said court, but was issued out of the Court of Common Pleas of Lehigh county, after an exemplification of the record of said judgment and the proceedings thereon had been filed in said last named court. We do not think this objection to the title of defendant is valid. The writ of fieri facias given by the act of April 7, 1870, is “in lieu of the provisions in proceedings by sequestration,” under the act of June 16, 1836, and in addition to the provisions of section 72 of said act. This section prescribed what must be done to entitle the creditor tó the writ of, sequestration prior to the passage of the act of April 7, 1870. And the same procedure, since the passage of this act, gives the right to a levy by fieri facias on the franchises. Section 73 of the act of 1836 provides that in every case in which a judgment shall have been obtained against a corporation subject to sequestration, and an execution issued thereon shall have been returned unsatisfied in whole or in part, “it shall be lawful for the court in which such judgment shall have been obtained,” to award a writ of sequestration. This return must, no doubt, be based upon the proceedings prescribed by section 72. It was held in Reid v. Railroad Co., 32 Pa. 257, that the writ was properly awarded upon a judgment which had been transferred from the Common Pleas of the county where it had been obtained to the Common Pleas of another county. And the same case decides that “if the record shows that there was a judgment against the corporation, that an execution had been issued thereon, and returned unsatisfied in part or in whole, then the requirements of the statute are satisfied.” Since, therefore, everything was done that was necessary in this case to have warranted the awarding of a writ of sequestration by the Common Pleas of Lehigh county, if the act of 1870 had not been passed, the second fieri facias was properly issued out of that court and the sale upon it, unless for some other reason, passed a good title. 2. It is further contended, on behalf of the commonwealth, that defendants took no title by virtue of the sale under said fieri facias for the reason that no sale could legally be made on any execution based upon the judgment upon which the fieri facias issued. The argument is this: The act of 1870 provides that the purchaser or purchasers of any property and franchises authorized to be sold by said act, “ shall take the same clear of all incumbrance excepting any mortgage or mortgages which may legally exist at the time of levy thereupon, the lien of which shall not be affected in any manner by said sale.” The sale in this case was made on a judgment for the amount of overdue coupons. The bonds'to which these coupons were attached were secured by a mortgage which was a lien at the date of the levy. The coupons being for interest due upon the mortgage debt, represented part of the debt itself, and therefore a sale upon such judgment would necessarily discharge the lien of the mortgage; the very thing which is forbidden by the act. This argument is, apparently, of great force, but we do not think it is conclusive. The act does not forbid a sale upon a judgment obtained for part or a whole of the mortgage debt. Suppose a judgment is obtained for the whole amount of the bonds secured by the mortgage, can it be that a fieri facias could not be issued on such a judgment, nor a sale made on it? But if this could be done would not the lien be discharged ? If so it would be a case where the lien of a mortgage existing at the time of the levy, was discharged by a sale under the act. The act of April 6, 1880, P. L. 293, provides when the lien of a mortgage is prior — with certain exceptions — to other liens, “the lien of such mortgage shall not be destroyed or in any way affected by any sale made by virtue or authority of any writ of venditioni exponas.” Yet it was held in Pierce v. Potter, 7 W. 475 that “notwithstanding the act of April, 1830,” a sale on a venditioni exponas based on a judgment for the mortgage debt discharged the mortgage. Kennedy, J., said: “Though the words of the act are, that ‘the lien of such mortgage shall not he destroyed or in any way affected by any sale made by virtue or authority of any writ of venditioni exponas,’ yet when the whole section is considered in reference to this case, it is perfectly obvious that it cannot be held to embrace it. Here the writ of venditioni exponas includes the same debt mentioned in the mortgage, so that, of necessity, the sale by yirtue of it could not but affect the lien of the mortgage by reducing, at least, if not wholly discharging the debt, accord- , ingly as the amount bidden at the sale might happen to be less or equal to the amount of the debt. It cannot be supposed that the legislature intended to exceed their power by extending the act to the case of a writ of venditioni exponas, grounded upon a judgment in favor of the mortgagee against the mortgagor for the same debt secured by the mortgage, because either a reduction or an entire payment of the debt by a sale under the writ of venditioni exponas would necessarily destroy, or at least affect, by lessening the amount, the lien of the mortgage. And it was not in the power of the legislature to continue the lien of the mortgage after the payment of the debt, though it was produced by a sale under the writ of venditioni exponas. The case then must be regarded as standing upon the same ground it would have done had the last-mentioned act never been passed.” It will be observed that the same language is used in the act of 1870 as in that of 1830. The lien “shall not be affected in any manner by said sale.” And a like reasoning applied to this act would lead to the conclusion that the legislature did not intend it to apply to a case where the writ was issued upon a judgment founded on the mortgage debt, at least to the extent of forbidding entirely a sale upon such a fieri facias which is the only point which concerns us now. This conclusion is strengthened when we note that the act authorizes the issue of a fieri facias by the “plaintiff or assigns, in any judgment against any corporation” to which'the act applies. In view of this we cannot see our way clear to adopt the alternative contended for on behalf of the commonwealth, and to hold that from “any judgment” must be excepted all judgments for the whole or any part of the mortgage debt. We incline rather to the construction adopted in Pierce v. Potter. One of the arguments for this is thus stated by Bell, J., in West Branch Bank v. Chester, 11 Pa. 292: “It may be added as of some weight in the argument, that were the certificate holders excluded from this remedy, they would probably be without one for the recovery of interest, as the mere equity of redemption may be valueless. Tiffs consequence ought not to be hazarded in view of the many contracts of this nature, produced within a few years past, by which the payment of interest is as solemnly guaranteed as the discharge of the principal, and without which, it may fairly be concluded, loans could not have been effected.” The case of Paul v. Hassal, recently decided in Lebanon county, was cited on the argument, and it was contended by counsel for the commonwealth that if followed, it must control the ease in their favor. We do not so understand it. Apart from the question now before us there was a good reason why that case should be decided as it was, and the decree was certainly right. Another court had jurisdiction of the whole matter, in a form of procedure in which the rights of all parties could be most surely obtained and protected, and we do not even imply a doubt of the soundness of that decision, when we hold, as we do here, that the sale set up in the amended answer, passed a valid title to the property and franchises levied upon. The question whether the lien of the principal of the mortgage was discharged or not, is not before us and we express no opinion on it. The demurrer is overruled. Judgment was thereupon entered in favor of the defendant, when the commonwealth took this writ, and assigned as error, the overruling of the demurrer, the entry of judgment for the defendant, and the refusal of judgment of ouster in favor of the commonwealth. The cause was first argued on May 80, 1887. On April 16, 1888, the following order was made: Per Curiam: It is ordered that this case be re-argued; and attention is requested to the effect of the provision in the mortgage given by the company to secure the payment of its bonds for a sale of the mortgaged premises by the trustees, upon default in the payment of either interest or principal. Is this remedy exclusive ? The cause was again argued, May 28, 1888.
122 Pa. 324U. B. Mutual Aid Soc. v. McDonald (1888)
error to the court oe common pleas oe dauphin COUNTY. No. 1 May Term 1888, Sup. Ct.; court below, No. 209 November Term 1886, C. P. On November 21, 1886, an action of debt was brought by Michael McDonald against the U. B. Mutual Aid Society of Pennsylvania, to recover upon a policy issued by the defendant company on March 22, 1882, upon the life of Roger Mc-Devitt, in the sum of $3,000. At the trial on April 12, 1887, it was shown that in the application by Roger McDevitt for the insurance, it was directed that upon his death the amount of the policy should be paid to Michael McDonald, designated therein as his step-son, and that McDonald was to pay all the assessments. It further appeared that McDevitt had married McDonald’s mother, when McDonald was but a boy. The mother had died, and at the time of the insurance McDonald had married and was living in his own home, separate from his step-father, who was 58 years of age. McDevitt died on April 12,1886. Assessments amounting to the sum of $732.00 were levied upon this policy and received by the association during McDevitt’s lifetime, and $181.44 were assessed after his death and claimed as a ■credit. The plaintiff, under cross-examination: Q. Did he owe you any money at the time he got this insurance ? A. No, he never owed me no money. All the money we used to give to one another and did not charge one another at all. Q. He gave you money and you gave him money ? A. Yes. Q. At the time of the application he did not owe you anything? A. No; he didn’t. Q. This application was made at the instance of your wife? A. No, he told me that I could get anything I wanted. Q. And your wife suggested the making of the application for insurance to protect her ? A. I do not understand that. Q. You say that this insurance was for your wife’s benefit? A. No: it was for my benefit, which lived the longest. Q. Well, your wife made application for it? A. Yes ; but I told my wife. Q. You sent your wife ? A. I sent my wife, for I had no time. Q. You paid all the money that was paid on it? A. Yes, sir; I did. Q. And Mr. McDevitt simply allowed you to use his name and his ■signature to the application? A. Yes; that was all. At the close of the testimony the court, Simoítton, P. J., ■charged the jury in part as follows : ■% * * * -*• * -*• The mere fact that the ■plaintiff was a step-son does not give an insurable interest in the life of the insured. If a perspn ■should take out a policy of insurance on the life of a stepfather for the purpose of speculation or a wager, it would be void and there could be no recovery upon it, if that was all that there was in it. In this particular case, as the application shows and the policy recites, the policy was taken out by the person insured himself. It is recited that he paid the first annual premium and took out the policy. It has been said, and is a fact, that a person has an insurable interest in his own life. A person has a right to take out a policy of insurance on his own life, and he has a right to make it payable to some one else if he chooses to do so, and if he does it for an honest purpose. If it is taken out on his own life, and by himself, and made payable to another by collusion with the other, and for the purpose of wager and speculation, it would not be valid; but if it is done honestly and fairly, and for an honest and fair purpose, and there be nothing of the character of wager or speculation about it, then it is valid. [And in this case, we submit this question to you, whether this policy was taken out for the purpose of wager or speculation ; whether this plaintiff himself, or he and his stepfather, one or either, took this policy out for the purpose of speculation, or as a wager, upon the step-father’s life. If it was taken out as a wager, or as a speculation, it is void, and the verdict must be in favor of the defendant. If, on the other hand, there was that relation existing between them, of which there is some testimony here — how much is for you — if they were, during the step-son’s minority, living together as father and son ; the plaintiff treating him as a father, and being treated as a son; if such relation continued to exist between them as naturally would continue to exist between a father and a son up to the time that this insurance was taken ; if it was taken out,in view of that relationship, for the honest, bona fide purpose on the part of the person insured to effect an insurance on his life for the benefit of his step-son and without any idea of wager or speculation, then we say to you that for the purposes of your action upon this case it is valid and that the plaintiff is entitled to recover. That is the question which you are to determine, and the only question which is submitted to you.] 3 We submit that question to the jury subject to the reserved point whether this policy, having been issued for the benefit of the step-son of the person whose life was insured, there being at the time no relation of debtor and creditor between them, as a question of law is void. We reserve that question. The defendant requests the court to charge : 1. The undisputed testimony being that McDevitt married plaintiff’s mother, who was deceased before the insurance was effected, and this being the only relationship between the plaintiff and the assured, and there being no relationship of debtor or creditor between them, there is no insurable interest, and the plaintiff cannot recover in this ease. Answer : I shall leave the question to the jury whether this was a wagering policy or not, and reserve the legal question.1 2. That there is no evidence to be submitted to the jury from which they can find that the policy was other than a wagering policy. Answer : The court declines so to charge.3 The verdict of the jury was in favor of the plaintiff for $2,912.08. The same day the defendant moved that judgment be entered upon the reserved question in favor of the defendant non obstante veredicto. On May 9,1887, the court filed an opinion which, after considering American L. & H. Ins. Co. v. Robertshaw, 26 Pa. 189; Hale v. Insurance Co., 6 Gray 172 ; Campbell v. Insurance Co., 98 Mass. 389 ; Cammack v. Lewis, 15 Wall. 643 ; Warnock v. Davis, 104 U. S. 775 ; Gilbert v. Moose, 104 Pa. 74, concluded: Upon the whole case we think the verdict ought to stand, either on the ground that the plaintiff, on the special facts in this case, had an insurable interest, or that the interest of the assured in his own life supports the contract to pay, as against the company; and that public policy would be better conserved by so holding, and treating plaintiff as a trustee for those entitled to the fund, than by permitting the company to knowingly make such contracts with persons who act in good faith, and not with intent to speculate, and after having collected large assessments, repudiate them. If the court of last resort thinks otherwise, the case is in such shape that our error may be readily corrected, and the proper judgment entered. Judgment having been entered on the verdict, the defendant took this writ, assigning as error, inter alia : 1, 2. The answers to the defendant’s points.1 3 3. The part of the charge embraced in [ ] 3 4. The refusal of judgment for the defendant non obstante veredicto.
122 Pa. 331Appeal of Chapman (1888)
FROM THE DEGREE OF THE ORPHANS’ COURT OE FRANKLIN COUNTY. No. 5 May Term 1888, Snp. Ct.; court below, No. 33 Orphans’ Court 1887. On October 9, 1885, Margaret Lee Chapman, administratrix •c. t. á. of the estate of John Lee Chapman, deceased, filed her •account to which certain exceptions were filed, whereupon, when Mr. H. J. Plough, was appointed auditor to hear and •determine the exceptions and to report distribution. At the hearing before the auditor on January 20, 1886, a note was presented for allowance on ■ behalf of H. M. F. V. •Stamp, which note with its indorsements, was as follows: $3,530.60. Blue Ridge Summit, July 10, 1876. Eighty days after date I promise to pay to the order of H. M. F. V. Stamp, three thousand five hundred and thirty .60 •dollars, at-value received. John Lee Chapman. [Indorsed.] Received cash on account twelve dollars. August 27,1887. • H. M. F. Y. Stamp. Received cash on account ten dollars. ■October 9, 1880. H. M. F. V. Stamp. It was admitted that the indorsements were in the handwriting of Mr. Stamp. In connection with the note, there was -offered a letter from Mr. Chapman to Mr. Stamp, dated at Baltimore, October 8, 1880, transmitting a postal money order for $10, and stating: “ I have been dreadfully harassed to pay ■expenses on Summit property and cannot send you more at this time.” The original money order was also produced, and the genuineness of the letter was admitted, but on behalf of Alice Chapman, the testator’s widow, objection was made to the allowance of the claim, on the ground that it was barred hy the statute of limitations. John Lee Chapman had died at Baltimore on November 18, 1880, leaving a will which was admitted to probate at Baltimore on December 3, 1880. On March 15, 1883, the register •of wills of Franklin county, Pennsylvania, issued letters of administration c. t. a. to Alice Chapman, widow, and to Margaret Lee Chapman, daughter, of the testator. The latter •assumed the exclusive management of the trust. The will gave the testator’s entire estate, after the payment, of his debts, to his widow and children in equal shares. On May 4,1885, there being no power to sell given to the executors, Margaret Lee Chapman, the acting administratrix, presented her petition to the Orphans’ Court of Franklin county to sell the real estate of the testator in that county for the payment of debts. In the statement of debts filed with the petition was included the note of Mr. Stamp referred to. Other debts to a large amount, however, were also embraced. No personal estate was reported. On September 7,1885, the-returns of sale of various parcels of real estate were confirmed, the purchase money aggregating $4,797.06. Margaret Lee Chapman, called by claimant, testified that Mr. Stamp was married to her sister, who died in 1869; that, he came to their home in Baltimore in June, 1880 : “We had not heard from him for some time. Father said to me next morning that he supposed the colonel wanted some money on his claim, and that he had none then to give him; ” That she was one of the executors of her father’s will: “ Col. Stamp came to our house in 1881, and told me of this debt and said he was going to lay it before the Orphans’ Court of Baltimore, and said that it was then due and unpaid;” that her father-voted in Baltimore, where he had a position, and went back and forth; at the time of his death his home was in Franklin county, Pa. Col. H. M. F. Y. Stamp, called in his own behalf, testified, under objection that “ at the very instant, immediately after Chapman’s death ” the credit of October 9,1880, was upon the-note. Upon the foregoing facts the auditor found: 14. The sole ground of objection to Stamp’s claim is that it. is barred by the statute of limitations. The note was due on October 1, 1876. If the payment of $10 on October 9, 1880, was on this note it is not barred by the statute of limitations. The auditor finds as a fact that the payment of $10 by John Lee Chapman, was upon this particular note now presented to the auditor, and that it was made on October 9,1880, to H. M. F. Y. Stamp, the payee. 15. The auditor also finds as facts that at the time immediately preceding his death, John Lee Chapman was a citizen of' the state of Pennsylvania, 16. And that Col. H. M. F. V. Stamp was a citizen of the state of Pennsylvania, on May 4, 1885, and had been for some time previous thereto. The following were the auditor’s conclusions of law: 1. The auditor having found as a fact that the payment of ten dollars on the note of H. M. F. Y. Stamp was made on the note now in controversy, he concludes as a matter of law that the note is not barred by the statute of limitations and is entitled to participate in the distribution.1 2. The note of H. M. F. Y. Stamp was not barred by the statute at the death of John Lee Chapman, and the debt became a lien on the lands in Pennsylvania for five years from the date of Chapman’s death. The lands in Pennsylvania were sold by proceedings in the Orphans’ Court within the period of five years from Chapman’s death, and the claim of Stamp must be allowed out of the fund with the other claims regardless of the fact whether any payments were ever made on the note or not.8 3. The auditor bases his second conclusion of law upon the authority of McGlintock’s App., 1 Cent. R. 635 (3 East. Rep. 416). This case was decided by the Supreme Court of Pennsylvania, after the decision of Yorks’ App., 110 Pa. 69, 77. In the decision of McClintock’s Appeal above cited the court had specially before them Campbell v. Fleming, 63 Pa., 242. The facts in the case before this auditor, are in all respects the same as in McGlintock’s App., 1 Cent. R. 635 (3 East. R. 416). The Supreme Court had no hesitation in allowing the claim in that case and no reason has been shown the auditor why the claim of Stamp should not be allowed here. Stamp has not brought suit against the widow and heirs of Chapman. The proceedings are in the Orphans’ Court, and his claim must be allowed.3 To the foregoing report and the accompanying distribution awarding to the claimant a pro rata dividend of $1,469.92, Alice Chapman, widow, excepted that the auditor erred: 1-3. In his findings of fact quoted above. 4. In his 1st conclusion of law.1 5. In his 2d conclusion of law.8 6. In his award made to claimant.3 The said exceptions having been argued, the court, Ro\VE, P. J., filed the following opinion and decree: I am of opinion that H. M. F. Von Stamp was a citizen of Pennsylvania on May 4, 1885, and thenceforward; that John Lee Chapman at the time of his death was a resident of Baltimore, having his domicil there ; that there was the principal administration and here the auxiliary. I think also, that the evidence does not warrant the auditor’s 14th finding of fact “that the payment of $10 by John Lee Chapman was upon this particular note.” Chapman’s letter of October 8, 1880, does not refer to any note. lie simply says, “ I send you $10, I cannot send more at this time.” The indorsement of a credit for $10 in Von Stamp’s handwriting as of October 9,1880, does not identify this note as the claim on which the $10 was paid, for it is not shown that it was made before October 1, 1882, when the six years expired. I therefore sustain the 1st and 2d exceptions to the findings of fact, and in consequence I must sustain the exception to the auditor’s first conclusion of law that Von Stamp’s note was not barred by the statute of limitations. He should have found that it was barred: Shaffer v. Shaffer, 41 Pa. 51. It fell due October 1, 1876. Chapman died November 18, 1880 (4 years, 1 month). The six years expired October 1, 1882. Petition for sale of real estate to pay this among other debts, May 5, 1885. Sale confirmed September 7, 1885. And the claim was presented to the auditor January 20, 1886. Upon the authority of Yorks’ App., 110 Pa. 69, 77, the statute was a bar. But the auditor in his second conclusion of law holds that Von Stamp’s claim is saved by the acts of assembly making the debts of a decedent a lien on his real estate for five years after his death, and he relies upon McClintock’s App., 1 Cent. R. 635 (3 East. R. 416), as an authority directly in point. It is so, and rules this case. In a former opinion in this case, written before McClintock’s Appeal was published, the point being made, I suggested a few reasons in support of a contrary conclusion. It is said, a claim not barred at the testator’s death, becomes by his death a lien on all his real estate for five years, and that a debt secured by a lien may be barred without divesting the security which the lien affords: Mitcheltree v. Veach, 31 Pa. 455. The-lien lies in the debt, and the debt is subject to the law which regulates its recovery. What is the nature of the lien and whence derived ? SinceÍ688 lands have been liable for debts. Until the act of 1705-was passed, it is said the administrator could sell real estate, for payment of debts as he could personal estate at common law, without any order of court, or else the creditor could take it in execution. In 1705, the administrator was authorized to-sell for payment of debts under the rule and direction of the Orphans’ Court. The lien of the creditor on the decedent’s; land springs from these old acts, which make his land liable-for debts and a fund for their payment. And the hen means, nothing more than “the right of subjecting the decedent’s, land to execution after his death either by common law process or in the Orphans’ Court: ” Lead. Art., 6 W. N. 545, 546; 2 Trickett on Liens, 516. In other words it means that the decedent’s land is a fund for the payment of his debts. Until 1794, there was no limit to the time during which the debts of a decedent continued to bind his land. But the act of' April 19, 1794, reciting that “inconveniences may arise from the debts of deceased persons remaining a lien on their lands, for an indefinite period of time after their decease, enacts that no debts unless secured, etc., should remain a lien on the land longer than seven years after the decease of 'the debtor. The act of 1797 is the same. The act of February 24, 1834, P. L. 77, enacts that no debts of a decedent, unless secured, etc.,, shall remain a lien on his lands after his death longer than five years, etc. Thus these acts do not create a lien, but limit a. lien before indefinite. And that lien is the liability of the lands, to answer for the debts for five years. But the personal estate is also answerable for the debts, and this does not prevent the running of the statute. Let us suppose that the acts limiting the lien of the debts, had not been passed or unrepealed, and the lien was indefinite. Then a claim not barred at the decedent’s death, might lie in wait for twenty years, until the presumption of payment would arise to shut it up in its lair. The lien would not prevent the presumption arising, and for the same reason it would seem ought not to prevent the bar of the statute, both having regard to-loss of means of proof of payment. Suppose a man to die leaving a personal estate ten fold enough to answer every claim, and lands besides. A claim, not barred at his death, is barred afterwards under Yorks’ Appeal, and cannot come in on the personalty. Can the creditor ask that the lands of the heirs be sold to pay his claim, because he had a lien on the land ? The personalty is the primary fund for the payment of debts. Can the personalty be relieved by the plea of the statute, and the lands remain bound ? Campbell v. Fleming, 63 Pa. 245. But further, the contention is that the lien saves the claim, though the statute of limitations bars it. And the reason is because it was an existing, good, enforceable debt at the death of the debtor. But is not that the question ? The debt ought to be proved, but cannot be pressed after the six years. The debt of a decedent is a lien, but is the creditor’s claim a debt of the decedent? We must not assume that; it is matter of proof: See Trinity Church v. Watson, 50 Pa. 526. The creditor, presenting his claim before the auditor after the six years have run, finds it barred by the statute. If he says it was a valid claim at the debtor’s death, the answer is, we cannot tell. You have allowed the claim to sleep until the evidence to disprove it is lost. A debt barred before death is not a debt of the decedent saved by the act of 1834, because it cannot be proved. For the same reason, a debt barred after his-death, would seem not to be saved by the act. The lien saves a just debt, and the statute of limitations-enables us to ascertain whether a particular claim is a just debt or not. My attention is called to the fact that Yorks’ Appeal was decided May 1,1885; McClintock’s Appeal, November 9, 1885; and the opinion on the re-argument of Yorks’ Appeal on January 4, 1886. It is said truly that McClintock’s Appeal— the old case in 29 Pa. 360 — was not overruled in the first case, but on the motion for a re-argument, and was not referred to in the case of McClintock’s Appeal of November 9,1885, by court or counsel. But though Guthrie for the appellant made a point on the statute of limitations, Stewart (contra) rested wholly on the lien, as did the Supreme Court in its opinion. The ease fits ours at all points, and Yorks’ Appeal does not affect its principal. But as Yorks’ Appeal shows that before a debt is seated on a trust it must be established as a debt, and in that the statute of limitations has its operation, so I thought that before a debt would be protected by a lien, it must be proved, and in that the statute would be a bar: Yorks’ App., 110 Pa. 69, 77. Here Mr. Justice Paxsojst says: “But how are we to say that this debt, which was not presented to the executors until twelve years after it matured and nearly seven years after the letters testamentary were granted, was a good debt at the time of the decedent’s death? But on the authority of McClintock’s App., 1 Cent. R. 635 (3 East. R. 416), the auditor’s report is confirmed, and distribution of the fund ordered accordingly. Thereupon the exceptant took this appeal and assigned as error: 1. The dismissal of the exception.1 2. The dismissal of the exception.8 3. The dismissal of the exception.3
122 Pa. 342Eby v. Elder (1888)
ERROR TO THE COURT OE COMMON PLEAS OE DAUPHIN COUNTY. No. 8 May Term 1888, Sup. Ct.; court below, No. 287 March Term 1887, C. P. On March 8, 1887, service was accepted of a scire facias sur mortgage wherein Maurice R. Eby, administrator of J. R. Eby, deceased, W. J. and T. G. Calder, executors of William Calder, deceased, Simon Cameron and J. 1). Cameron, were plaintiffs, and Rebecca Elder, executrix of James Elder, deceased, Scott Elder, W. K. Cowden and W. S. Rutherford, were defendants. The defendants pleaded non est factum, payment with leave, lefaleation and want of consideration. The cause was tried on October 4, 1887, when the plaintiff gave in evidence that on May 21, 1871, Simon Cameron, J. D. Cameron, William Calder and J. R. Eby, by a deed containing the usual covenants conveyed to James Elder, Scott Elder, W. K. Cowden and W. S. Rutherford, a lot in Harrisburg fronting 325 feet on Market street, and extending back 150 feet, for the consideration of $21,000. Of the purchase money, $7,000 was paid in cash and for the balance twenty-eight joint and several bonds in $500 each were executed and delivered by the grantees secured by a joint mortgage of the same date in the penal sum of $28,000. Each of the four vendors received seven of these bonds made payable to him as his share of the unpaid purchase money secured by the mortgage. Afterwards the title to the mortgaged property became vested in W. K. Cow-den. The plaintiffs then rested. The defendants produced twenty-five of the bonds, when it appeared that all the bonds secured by the mortgage had been paid, except three held by J. R. Eby. It was then shown by the record of a suit to No. 170 January Term 1878, J. R. Eby, for use of Christian Long, against W. K. Cowden, that on October 4, 1880, in an action of debt upon one of these three bonds, a verdict and judgment had been had by the defendant, upon the ground that after the execution and delivery of the bonds and mortgage the grantees of the land had been compelled by proceedings at law to yield to the assertion of an easement of way over the property under a grant made by the plaintiffs in 1859, the damages to the grantees therefrom being in excess of the amount due upon the bond sued on. This record also showed that during the trial of the case, the pleas of defalcation or set-off, and payment with leave, were withdrawn, and the plea of failure of consideration substituted. The defendants in the present case then gave in evidence the grant of a right of way over the lot from the grantors in the deed (the grantees in the mortgage), executed and acknowledged December 13,1859, and duly recorded; also the records of certain actions of trespass against the grantees in the deed (the grantors in the mortgage), brought in 1872 and resulting in judgments against the defendants therein, establishing the right of way over the premises twenty feet wide opening on Market street. They then offered evidence of the injury to the lot caused by the existence of the private way, when the plaintiffs objected, and interposed evidence to sustain the objection, that the verdict and judgment in Eby for use of Long against Cowden, No. 170 January Term 1878, was a bar to the offer made as a defence in this case. The objection was overruled. The defendants then adduced evidence of damage to the property' from the existence of the easement, and rested. In their rebuttal case, the plaintiffs introduced evidence to show that the private road referred to had been open and visible upon the premises and used by those interested in it from 1859. They called Lerue Metzgar, who testified that in 1870 or 1871, he had to do with the negotiations between the plaintiffs and defendants for the purchase of the lot; that a contract was prepared, but unexecuted because the proposed purchasers had learned of the existence of the right of way ; and, that an adjustment was reached by a deduction of $1,000 or $1,500 made from the purchase money as first fixed upon, when the conveyance, the mortgage and bonds, were delivered for a consideration less the deduction made. Witnesses had testified for the defendants that the existence of the easement was not an injury to the property. It was then shown by the plaintiffs that after the verdict and judgment, in the action of Eby for use of Long against Cowden, No. 170 January Term 1878, there being then $6,000 of the bonds outstanding, Mr. Cowden, .owning the lot bound by the mortgage securing them, made a proposition, as follows: I propose as a compromise of the litigation arising out of the above mortgage and the bonds secured thereby to pay the face of the above six thousand dollars of bonds. This I propose as a compromise and end of litigation. If not accepted by the holders of the bonds and mortgage, then this paper is to be returned to me and not to be used, nor is the proposition to compromise to be used in any suit or suits arising out of or founded on the said bond or mortgage. June 28, 1882. This proposition was accepted by all the bondholders save Mr. Eby, and those accepting were paid and surrendered their bonds. In sur-rebuttal of the testimony of Mr. Metzgar, Mr. Wallace Dewitt was called, by the defendants and testified that in 1872, as counsel for James Elder and W. K. Cowden, defending the suits in trespass for obstructing the private way, he went with his clients to Mr. Calder and Mr. Eby, and called their attention to depositions which had been taken November 11, 1871, in a street view in the Quarter Sessions, wherein both J. R. Eby and James Elder had testified: “Theyread their' evidence in that paper and said: ‘we will adhere to what we have sworn to before those viewers; that there was no road there, and that we assured them there was no road there,’ and upon that I went before the court.” The court, McPherson, J., charged the jury, and answered the points presented as follows: In 1859, the gentlemen who owned this property made an agreement with the Reading Railroad Company, as a result of which a road was laid out across the lot which Mr. Cowden and his partners afterwards bought. It was laid out in favor of the land lying to the westward, and imposed upon the Cow-den lot what is known as a servitude, — that is the legal name of it — a burden put upon this lot in favor of the others. It is in evidence, and it is not seriously denied, that from that time, or shortly afterwards, at least, — the date is a matter the jury must determine, — the road was in actual use upon the ground, and that from that time on it has been continuously in use by the persons occupying these other lots to the westward, — perhaps by others, but certainly by them. This agreement also was put upon the records of the court. About 1871 Mr. Cowden and the other gentlemen named as defendants here made a proposition for the purchase of this property, but while that was in process, it is said, that a certain agreement was made, and this raises a question which I will submit to you. Mr. Metzgar has testified that during the pendency of the negotiations between Mr. Cowden and his associates and the gentlemen who owned the property, the existence of this road was talked about, and that Cowden and his associates refused to take it at the price which had been suggested, insisting that some deduction must be made. Mr. Metzgar then goes on to say that an allowance of $1,000 or $1,500 was made for this road, and thereupon a deed was made, and mortgage, etc., executed. Upon that there is some testimony. There are among other things, certain declarations said to have been made by Mr. Eby, admitting that before the deed was executed Mr. Cowden and his associates had been assured that there was no road. This, of course, is in contradiction with the view as asserted by Mr. Metzgar, and if there be any other testimony bearing on that point, the jury must consider it. You must determine how that fact is, and we say to you that if upon the evidence you find that an allowance was made for this road, and that $1,000 or $1,500 was thrown off for the injury which it did to the property, then the defendant cannot set up again that defence in this suit, and the plaintiff is entitled to recover one thousand dollars, with interest from the date from which it begins to run. In other words, if the story told by Mr. Metzgar is true, the. plaintiff is entitled to recover the amount of the two bonds. If you find it is not true, then you come to the question, what was the condition of the ground at the time of the deed; what was the condition of this road at the time this deed was made ? . There is testimony that in 1871 this road was plainly marked upon the ground as a road in actual use. That would of course put anybody desiring to purchase the property upon notice that there was such a road there; that probably there was that incumbrance there, and then, if a deed was made without any reference to the road, without any express agreement against it or any promise to be responsible for the damage it might cause, there would be no remedy. That is, no remedy under the implied contract arising from the words, grant, bargain and sell. In other words, if you find from all the evidence that that road was plainly marked upon the ground, showing it to be a burden upon this property, an easement upon the ground, the plaintiff is entitled to recover. If, however, that was not so, then you come to the other question in the case, and that other question is simply the question of how much. For if the property was taken without the notice I have spoken of, then there is a covenant in the deed against any such incumbrance as a road would be. It was broken, and then the question would be how much should be paid by the grantors, the people who made the deed; and, of course, the answer to that is found when you answer the question, how much actual damage was done. That will be the first question, when you come to the question of damages, to be determined, and that will be answered by answering this question: What was the value of the property without the road, and what was the value of the property with the road on it; and the difference between these two sums would represent the injury, and that you must estimate as of the time when the road was taken, when the right to have the road was enforced and the defendants were compelled to give up that much of the property for the use of the road; and, since the evidence is uncontradicted as to the use from that time down to the present, we say they should also be allowed interest upon that sum from that time to the present. However, the whole amount of that damage would not be available to the defendant as against Mr. Eby, and the reasons for that are these: in the first place, on January 28, 1882, a paper was made which has been given in evidence, and which now lies before me. . It took the form of a proposition from Mr. Cowden, and the uncontradicted evidence in the case is that it was accepted by three of the gentlemen named in this mortgage, viz.: Mr. J. D. Cameron and Mr. Zimmerman, who held the legal title to the bonds which Mr. Cameron and Mr. Calder owned. As I said, the proposition was accepted by these three interests and carried out. Therefore we say, that this paper was a settlement of the difference then existing with reference to this road, between Mr. Cowden and these three interests. It says, “I propose as a compromise” to do certain things, and that proposition was accepted. Now there is not a particle of evidence in the case to show that there was any other litigation except that arising out of the construction of this road, and we say to you that this compromise was a settlement of the difficulty arising out of this road. I do not want to be understood as saying that there could be an apportionment of these bonds under a defence of this kind. The parties themselves apportioned, and it is not we who are now doing it, but simply declaring, in the interpretation of this agreement, what they themselves actually did. This did not affect Mr. Eby, because he did not agree to it. His name does not appear and he is not bound bj^ it; neither can he set it up in his own behalf. Therefore, as I understand the matter, if any damages could be set up by Mr. Cowden, the one fourth part of it would be available to him as against the bonds now in suit. That is, it would be available if it is more than the amount which he has already had the benefit of. You recollect that a suit was brought by Christian Long who was an assignee of another of these bonds, and in that suit this same defence was set up. That was a bond of Mr. Eby. The bonds were drawn in a peculiar way, and instead of being made to all the grantors, they were made to the grantors separately. Mr. Simon Cameron got so many, Mr. Calder got so many, and the rest all having the same amount. In the trial upon this bond of Christian Long, this defence was set up, and there was a verdict for the defendant; that is, he got the benefit or just as much as was due upon that bond. That is a simple calculation, and amounted to some seven hundred dollars. Therefore, if the one fourth part does not exceed the sum of seven hundred odd dollars, there is nothing to be set up in this suit, and the defendant would be.entitled to recover one thousand dollars, with’ interest, from that date. If the one fourth part is greater than the sum of this seven hundred odd dollars, the excess can be set up against the claim here, and if that be as much as the whole claim of the plaintiff, then the verdict goes for the defendant. The plaintiffs submit the following points, (inter alia) : 1. In the absence of deceit, imposition or fraud, a slight deficiency in the quantity of land purchased is no defence to an action for the purchase money upon an obligation given in consummation of the contract of purchase, and the verdict ■should be for the plaintiff. Answer : That is refused for two reasons : First, because it does not apply, and second, it asks us to give a binding instruction for the plaintiff.1 4. The defendant, Cowden, having on the trial of a former suit on one of the notes now held by Eby’s administrator, (viz.: in action of Jacob Eby, use of Christian Long v. Wm. K. Cowden Co., obligors, etc., entered to No. 170 of January Term, 1878,) under the plea of want of consideration, defeated a recovery by evidence showing damage by reason of the existence of a road upon and over the premises included in the mortgage, is estopped from setting up the same defence to this action, and the verdict should be for the plaintiff for the amount of his other two notes, with interest thereon from May 1,1871. Answer: This is refused.* £>. The agreement dated December BO, 1859, and recorded the next day between the Philadelphia & Reading R. R. Co., of. the one part, and Jacob R. Eby, William Calder and Simon Cameron of the other part, having located the road complained of upon the locus in quo, and said road at the time of the purchase by said Cowden and others being open and in actual use as a manifest easement upon the premises, the defendant Cow-den and his co-purchasers took the property subject to said easement, and are not entitled in law to any deduction for the purchase money by reason thereof. Answer: If the jury find from the evidence that at the time of the purchase the land was openly and plainly subject to this easement; that the physical condition of the ground was openly and plainly affected thereby, then, since there is no express agreement or covenant relating thereto, the continuance of the easement would not be a breach of the covenant against incumbrances, and the plaintiff would be entitled to recover $1,000, with interest thereon.4 6. The defence in this case, being founded upon the covenants contained in the deed in evidence from Cameron and others to Elder and others, and said covenants being in all respects joint and not several, the compromise in evidence with the two Camerons and Calder, three of the joint covenantors, is a complete bar to the defence set up by the defendants in this controversy. Answer: Refused.6 7. Under the law and the evidence in the case the verdict should be for the plaintiffs. Answer: Refused.7 The defendants submit the following points [inter alia] : 1. The paper given in evidence, the contracting parties to which are the grantors in the deed to Elder, Cowden & Co., and the Philadelphia & Reading Railroad Company, being executed on full consideration for the benefit of Messrs. Simons, Wiestling and Weirman, and so expressed in the paper itself; and the said beneficiaries having taken possession of the road purchased for them under it, in lieu of the one which they surrendered to said railroad company, and having used it continually down to the sale of the land to Elder, Cowden & Co., have a complete title to said easement, and it therefore constitutes an incumbrance covered by the words, grant, bargain and sell, in the deed to Elder, Cowden & Co. Answer: The road in evidence is an incumbrance covered by the words, grant, bargain and sell, in the deed referred to.5 3. Under the law as settled by the Supreme Court in Good v. Good, 9 W. 567 and 3 W. & S. 475, there can be no pro rata distribution of defalcation for failure of consideration among the different bonds secured by the mortgage, but the failure of consideration is inherent in all, and applicable to successive actions on any of them, or on the mortgage itself, until the defendant is compensated by defalcation to the extent of his loss. Answer: This is affirmed if tins defence is available at all. I mean by that, of course, if you reach that branch of the case.3 7. If the jury believe that in November, 1871, after the delivery of the deed by Eby and others to Cowden and others, Messrs. Calder and Eby declared and testified in the road case given in evidence in the presence of James Elder, that no road existed and that these declarations under oath were made, as James Elder testifies in that case, at the time of and before the delivery of the said deed, then Mr. Eby’s representative is es-topped from setting up said road and from showing such facts as would put Cowden and others upon notice of said road. Answer: This is refused. I do not want the jury to understand that they are not to consider Mr. Eby’s statements. They are, of course, to be considered.8 The jury returned a verdict in favor of the defendants. A rule for a new trial having been discharged and judgment entered, the plaintiffs took this writ assigning as error: 1. The answer to plaintiffs’ 1st point.1 2. The answer to plaintiffs’ 4th point.8 8. The answer to defendants’ 3d point.3 4. The answer to plaintiffs’ 5th point.4 5. The answer to defendants’ 1st point.® 6. The answer to plaintiffs’ 6th point.6 7. The answer to plaintiffs’ 7th point.7 8. The answer to defendants’ 7th point.8
122 Pa. 358Spangler v. Spangler (1888)
No. 12 May Term 1888, Sup. Ct.; court below, No. 308 August Term 1887, C. P. On July 28, 1887, Franklin J. Spangler brought assumpsit against Sarah Maria Spangler, executrix of the will of Emanuel Spangler, deceased. The defendant pleaded the statute of limitations.
122 Pa. 363Baker v. Singer Mfg. Co. (1888)
ERROR TO THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY. No. 14 May Term 1888, Sup. Ct.; court below, No. 135 September Term 1886, C. P. On June 1, 1886, judgment was entered in favor of The Singer Manufacturing Company against Lib. A. Baker upon a note for $30, executed by her alone, dated May 1, 1883, payable one year after date and containing a warrant of attorney to enter judgment, with a waiver of the benefit of the exemption laws, and of inquisition and condemnation of any real estate that might be levied upon. The same day a fieri facias was issued. On June 14, 1886, the defendant presented her petition setting forth inter alia that on May 1, 1883, when she executed said note she was a married woman, the wife of Daniel H. Baker, and, showing the entry of judgment thereon and the issuance of said writ, a rule was granted upon the plaintiff to show cause why the writ should not be stayed and why the judgment should not be stricken from the records. The same day, service of the rule was accepted by the plaintiff’s attorney, but the plaintiff filed no answer. On August 10, 1886, the court, Rowe, P. J., filed the following opinion and decree: The defendant, a married woman, bought a sewing machine for her own use from the plaintiff, and gave her judgment note for it, upon which judgment was entered against her, and this rule has been obtained to set it aside. The act of assembly of February 29, 1872, P. L. 21, reads thus: “ All contracts made by married women in the purchase of sewing machines for their own use, shall be valid and binding, without the necessity of the husband joining in the same.” Not only is it that a wife may contract for the purchase of such a machine, but she may make contracts in the purchase. By means of a sewing machine, a wife — usually the mother of a family — is relieved of much tedious and wearisome work, and it thereby conduces to her health and happiness. If she has separate property wherewith to buy one or to secure the price of one, the husband ought not to have the power to forbid the use of her own means for a purpose promotive of such benefit to her, and that, whether the sewing machine is strictly in the category of necessaries for the support and maintenance of her family or not. If she is able and willing to pay for one, she ought to have it whenever she thinks it desirable to lighten labor, she alone being the judge. The object of the law is to ameliorate the condition of the mater familias by conferring contract capacity in this regard, making her independent of her husband and taking her out of his power. Out of such views and considerations this law sprang up. For the defendant, the contention is (1) that she could not make a warrant of attorney to confess judgment, and (2) that her husband must be joined with her in any action for the price of the machine, and if it appears that it was a necessary for the support of the family, his property must be looked to in the first instance. For an answer to the 'second position I content myself with a reference to McQuillen v. Singer Manufacturing Co., 99 Pa. 586. Mrs. Baker cannot send the plaintiff against her husband, but the plaintiff may pursue the husband, and, if it is shown that the sewing machine was in the class of necessaries, he may be held liable for the price of it. " As to the first position more must be said. At common law a married woman could not make a note or bond, by reason of her want of contract capacity, and she could not give a warrant of attorney to enter judgment, for the same reason and because she could not be sued alone, being entitled to the protection of her husband. The very question here, however, is whether the act of 1872 has not conferred on her the capacity to make a judgment note, a thing the legislature could do, if they meant it. The statute has conferred such capacity in terms, if the giving of a judgment note is a contract or stipulation in the purchase of the sewing machine. I take it she may make what terms she' pleases, so long as they are essentially part of the contract of sale,- as was said by Mr. Justice Gordon in respect of a married woman’s purchase of land. “This of course means,” he says, “ that so far as the property purchased by a feme covert is concerned, she may bind it for the purchase money in any manner that she might were she sole.” And so she could make a bond or a warrant of attorney to confess judgment: Shnyder v. Noble, 94 Pa. 286. That in the purchase of a sewing machine for her own use, a married woman can give a valid note for the price, without her husband joining, is scarcely doubtful. A feme covert, a feme sole trader under the custom of London, can give a promissory note or make a binding contract in the course of her business: Ware v. Henry, 1 Pears. 77. So, under our act of 1718, 1 Sm. L. 99, she can make a bond: Burke v. Winkle, 2 S. & R. 190. But it is contended that she cannot make a note or bond with a power of attorney to enter judgment. Let us see about that. A feme sole trader under the custom of London cannot give a bond with warrant of attorney ,to enter judgment, without her husband joining. The reason is, because she cannot be sued alone: Caudell v. Shaw, 4 Term R. 361, cited in Ware v. Henry, 1 Pears. 77; see also Caldwell v. Walters, 18 Pa. 82. In Brunner’s Appeal, 47 Pa. 67, it was held that the judgment note of a married woman, given- for a debt contracted for the improvement of her separate estate, is not good and a judgment entered thereon is void, because she ought to be joined in a suit with her husband. “ The joinder of the husband is essential to her protection.” In Keiper v. Helfricker, 42 Pa. 329, where the husband had joined his wife in the judgment bond, it is said (but this was not the point for decision) that the bond, warrant, and judgment of a married woman would not be good even though given for debts contracted before marriage or for necessaries. for the support of the family, because her separate estate must be reached through some appropriate form of action, and not by means of instruments which the Supreme Court have declared to be null and void. But upon this case it ought to be observed, that as to articles necessary for the support of the family, the true reason is given in Brunner’s Appeal, 47 Pa. 74, which is that the 8th section of the act of 1848, P. L. 536, prescribes that the suit shall he against husband and wife both, and execution shall be in the first instance against the husband alone. And, as to debts of the wife contracted before marriage, the act of 1848 merely says her husband shall not he liable for them, and does not further change the common law- And with respect to all the above eases, it may be observed that there was no statute applicable to them, broadly declaring that all contracts made by a married woman in such a matter should be valid and binding without the husband joining therein. Now, to look at the other side, it is agreed that a married woman may make a judgment note in the purchase of land, though there is no statute which permits her, in such case, to be sued alone: Christner v. Hochstetler, 109 Pa. 27. And the reason as given in Shnyder v. Noble, 94 Pa. 286, by Mr. Justice GfoiuDON, is this: “If her warrant was good at all, it was good because of her power to bind herself, or rather the land purchased by her.” And in Patterson v. Robinson, 25 Pa. 81, it was said that “ under the act of 1848, her power to purchase gives her a right to contract for the payment of the consideration money so far as to charge the property with such incumbrances as may ho agreed upon to secure its payment.” But our act of 1872 not only confers power to purchase, hut to make all contracts in the purchase. See, however, Brunner’s App., 47 Pa. 73. I think Winternitz v. Porter, 86 Pa. 35, somewhat impinges upon the doctrine of Brunner’s Appeal. It was there held that a feme solo trader may be sued alone for an indebtedness incurred by herself in the repair and improvement of her separate real estate. This was not in the course of her business. If she could he sued alone, could she not give a judgment note ? 1 instance these eases of feme sole traders as peculiarly applicable to the case in hand, because a feme sole trader has by statute capacity to make contracts in carrying on her business, and a married woman has by statute capacity to make all contracts in the purchase of a sewing machine for her own use. But what if a feme sole trader cannot give a warrant of attorney to enter judgment? She may ruin herself by contracts which ought to he defended against. And what if a married woman cannot give a judgment for repairs and improvements ? She may improve herself out of her land. But what injury can come to a married woman, having a separate estate, by ' confessing judgment for the price of a sewing machine ? The act of 1872 does not regard the husband’s protection necessary in the matter of the purchase. Consider, moreover, that if a wife cannot secure the price of the machine in such a way that it can be recovered without uncertainty, cost and delay, she often will not be able to buy. The act contemplates a sale on credit, a contract which the husband need not join in, and the statute was not needed for cases where the wife has the money in hand to pay down for the sewing machine. To hold that she cannot give a judgment note is not advantageous to her, because she cannot buy so well, and the beneficent purpose of the act will be largely thwarted, and because, though having no defence, she must incur the costs of an action. The act of 1872 ought to be so construed as to. advance its purpose, as the act relating to feme sole traders was construed in Burke v. Winkle, 2 S. & R. 189, and in Winternitz v. Porter, 86 Pa. 35. A married woman should be treated as a feme sole in respect of all her contracts in the purchase of a sewing machine for her own use, made on her own behalf and not as agent of her husband, and without his joining therein, with power to make any contract in the purchase except such as would be manifestly to her injury, which the giving of a judgment note would not be: McQuillen v. Singer Mfg. Co., 99 Pa. 586. The rule to set aside the judgment is discharged. The defendant then excepted to the order discharging the rule granted and took this writ, assigning the said order as error.
122 Pa. 372Clouser v. Patterson (1888)
error to the court oe common pleas oe eulton COUNTY. No. 22 May Term 1888, Sup. Ct.; court below, No. 60 October Term 1887, C. P. On October 30, 1887, a feigned issue was awarded, wherein Jacob Clouser and Elizabeth Clouser, his wife, in right of said wife, were plaintiffs, and D. H. Patterson, G. W. Skinner and others, were defendants, to determine the ownership of property levied upon by the sheriff as the property of Jacob Clouser, at the suits of D. H. Patterson and others. Mrs. Elizabeth Clouser claimed the property in dispute, to wit, a gray mare, known as the Parker mare, a brindle horned cow, known as the Peoples cow, red bull, white steer, red muley steer, 1 year; brindle steer, 1 year; red horned cow, twenty sheep, white brood sow and seven shoats; bald-faced bay mare, bay horse, red muley cow, 4 years, red muley cow. At the trial on October 13, 1887, evidence sufficiently indicated in the opinion of the court was adduced, and the jury returned as their verdict: “We find for the defendants, on the Parker mare |43.75, and on the Peoples cow, $8; and we find the balance of the stock for the plaintiff, Mrs. Clouser.’'5 Judgment was entered on the verdict on November 29th, and on December 20th a writ of error taken by the defendants was filed. On January 7,1888, the court, stating that it appeared to be probable that there was some error in the finding of the jury in returning for-the defendants only parts of the values of the Parker mare and the Peoples cow, and such error being apparently in consequence of the charge of the court, ordered a motion to be minuted to open the judgment for the purpose of granting a re-trial or for the correction of errors in the verdict. To this order the plaintiffs excepted. On April 24, 1888, the court, MoClban, P. J., filed the following opinion and decree: There was error of law in the charge of this court permitting ;a separation of the interests of the husband and wife in the Peoples cow and the Parker mare. The question had not received the attention and consideration of counsel upon the trial, and when referred to in the charge it was so done hastily and without full consideration; and, in the absence of authority, the jury undertook to apportion the Peoples cow and Parker mare between the parties, as they concluded the evidence justified, and the charge of the court permitted. This error of law extends, in the case of the cow, to her young. The defendants proceeded to purchase a writ of error, but they cannot have this remedy upon interpleader proceedings: Gilliland’s Appeal, 3 Pa. S. C. Dig. 46, in which the certiorari and appeal were quashed January 9, 1888. This court was not satisfied with the result of the trial of this issue on account of the separation of values referred to, and sought to remedy the error during the term by filing the order of motion to open the judgment before the commencement of another term of court. Any delay that has occurred has been at the instance of counsel and to afford them abundant opportunity for examination and argument. We have no doubt either of the power or duty of the court to correct the error. It is therefore ordered now, as of October Term, 1887, that the judgment be open and modified as follows: In favor of the defendants for the gray mare, known as the Parker mare, the brindle horned cow (old), known as the Peoples ców, red bull, white steer, red muley steer 1 year; brindle steer 1 year; and red horned cow (slim); the last five named being the young of the Peoples cow. And for the plaintiff, 20 sheep; white brood sow and 7 shoats ; bald-face bay mare; bay horse; red muley cow 4 years;, red muley cow. All the costs to be paid by the defendants. Thereupon the plaintiffs took this writ, assigning the order opening the judgment and amending the verdict, as error.
122 Pa. 377Hoffman v. Hoke (1888)
XCIUIOJR TO THE COURT OB COMMON PUMAS OB DAUPHIN COUNTY. No. 23. May Term 1888, Sup. Ct.; court below, No. C. P. On May 18, 1886, James Hoffman, administrator of Elizabeth Bowerman, deceased, brought assumpsit against G. W. Hoke, to recover from the defendant sums of money- received by him upon certain policies of insurance upon the life of said deceased. The' defendant pleaded, non assumpsit, payment with leave, etc. At a second trial of the case on October 4, 1887, the following were the essential facts appearing in the evidence : On December 28, 1880, at the solicitation of “ agents,” Mrs. Elizabeth Bowerman made' an application upon which the State Capital Mutual Relief Association of Harrisburg issued a certificate of membership or policy on the life of Mrs. Bower-man, for |5,000, on the mutual assessment plan of insurance; the beneficiary named in the policy being William Bowerman* a son of Mrs. Bowerman. On February 28, 1881, on a like application by Mrs. Bowerman, the New Berlin Mutual Relief Association issued six such certificates or policies, each for $1,000, the beneficiary named being Emanuel Bowerman, also a son of the assured. At the same time with these last insurances, several certificates or policies were issued upon the life of the same applicant, amounts not shown, by the Selingsgrove Mutual Assessment Life Association and the Bendersville Mutual Assessment Life Insurance Association, in which certificates William and Emanuel Bowerman were named as the beneficiaries. When the certificates were issued, they Avere not turned over to the assured or to the beneficiaries, but an agreement under seal was made in each case between the beneficiaries and W. G. Hoke and another, by which the beneficiary, William Bowerman, or Emanuel Bowerman, in consideration of $1, assigned all his interest in the certificate or policy to W. G. Hoke and the other, on conditions such as follow: That the party of the second part agree to pay all premiums, assessments and annuals that may be, or will become, due on said certificate during the life of the said Elizabeth BoAverman % and after death, agree, to pay to the party of the first part, one fifth (^) of the profits realized ont of said certificate, after expenses being deducted, and the balance shall be equally divided between the said William G. Hoke and Irwin Guyer, party of the second part. And the party of the second part also agree that if they neglect to pay said assessments and annuals as they become due, to forfeit all moneys paid, and all interest in said certificate, to the party of the first part. .The certificates were then delivered for safe keeping to a third person. The assignees had no insurable interest in the life of the assured, but paid all the cost and the assessments upon the certificates or policies. When the applications were made, the examinations had and the certificates issued, Mrs. Bowerman was much affected with heart disease and dropsy, and died within a month thereafter. Dr. N. W. Stroub, called by defendant: Q. Had you had any conversation with the mother on that subject? A. Yes, sir; 1 had. Q. Did she agree to it? A. Yes, sir; she agreed in case the boys could get insxirance, that it would not cost them anything: she said they were too poor, they couldn’t afford to pay for the insurance policy; and then 1 suggested the percentage plan, and she agreed that if it could be done in that way she was perfectly satisfied. Q. Did you communicate that conversation to William Bowerman? A. Yes, sir. Q. Did you to Emanuel Bowerman ? A. Yes, sir. Q. What was done in pursuance of that ? A. The policies were taken out, and the parties were secured to keep up this insurance. On cross-examination: Q. This was simply a speculation on the life of this old woman? A. It was all speculative, I suppose. Q. Didn’t she die within a month of the taking out of all these policies ? A. Indeed, I couldn’t tell you; but she didn’t live very long. Q. She was then suffering from heart disease and largely swollen with dropsy? A. At times she was. Q. She couldn’t lie down on her bed, could she ? A. Yes, sir; she could, except when she had these dropsical affections. Q. Then she was compelled to sit? A. Yes, sir; she sat a part of the time. Q. She was in such a condition when these policies were taken? A. Yes, sir; I have had similar cases that beat the companies; cases just as bad as she was. Q. Did she come to you, or did you go to her to have her go into this thing? A. We went there, of course; that was the case with all insurances;' we would go to the parties. It was shown further that after the death of Mrs. Bowerman checks were drawn by the companies to the order of the beneficiaries, severally, and taken to them and their indorsements procured thereon, and-their receipts in full discharge of the companies obtained. The cost and expenses of the insurance were then deducted from the sums paid on the certificates, the amounts of which did not clearly appear, and the balances were divided one fifth to the beneficiaries in the certificates, and four fifths to the assignee or assignees thereof. This suit was to recover the amount of the sums received by the defendant. Alj, the close of the evidence the court, Simonton, P. J., charged the jury: As we look at this case, the result must be reached' simply on a single point of law. The defendant has asked us to instruct the jury: That, if the jury find that William Bowerman and Emanuel Bowerman, the beneficiaries in the policies of insurance, were sons of Elizabeth Bowerman, then neither the said William Bowerman nor Emanuel Bowerman being plaintiffs, the verdict must be in favor of the defendant. We instruct you that that point is correct for this reason: These policies were taken out in the name of these two sons of Elizabeth Bowerman, who was the person whose life was insured. If they were the sons, as is conceded by the plaintiff, they had an insurable interest in her life; they had a right to take out policies upon her life. Upon the face of the policies, "then, when issued, they had an interest in the policies; they were the legal owners of the policies and had a right to be -such owners. They afterwards assigned four twentieths of each of these policies to certain other parties, one of whom is, the defendant in this ease, agreeing that when the sums were realized and collected upon the policies, they were to have one fifth, and these other parties were to have four twentieths of the proceeds, after the expenses were taken out. These assignees were to keep up the policies. That assignment, or that agreement, whichever you call it, was void, for the reason that the persons who received the assignment had no interest whatever in the life of the person whose life was insured; they took no title; they left the title just where it was before; left the title in these sons, and there it remained; and as these policies then belonged to these two sons of Elizabeth Bower-man, her estate does not own the policies, and therefore she has no right to recover them; .and for that reason, without enlarging further, we instruct you that your verdict in this case must be in favor of the defendant. A verdict for the defendant having been returned, on a motion for a new trial the court held that the case could not be distinguished in principle from Wegman v. Smith, 16 W. N. 186, and Kohr v. Wolf, 16 W. N. 189, and directed judgment to be entered for the defendant upon the verdict. Thereupon the plaintiff took this writ, assigning as error the instruction to the jury to find for the defendant.
122 Pa. 386Commonwealth v. Amer. Dredging Co. (1888)
No. 38 May Term 1888, Sup. Ct.; court below, No. 487 June Term 1887, C. P. In 1887, the American Dredging Company appealed to the court below from the settlement by the auditor general and state treasurer, on December 15, 1886, of taxes claimed to be due on its capital stock, under the act of June 7, 1879, P. L. 112.
122 Pa. 392Bessemer Steel Co. v. Reese (1888)
FBOM THE DECREE OE THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 164 October Term 1887, Sup. Ct.; court below, No. 325 September Term 1882, C. P. No. 1. On July 28,1882, a bill in equity was filed by The Bessemer Steel Company, Limited, against Jacob Reese and The Harrison Wire Company, praying upon the facts averred: (1) That an injunction be issued restraining Jacob Reese from selling, assigning or transferring certain inventions, letters patent, or applications for letters patent, mentioned and described. (2) That the rights of the plaintiff under, and the true and proper construction of, certain agreements of said Jacob Reese with the plaintiff, dated September 25, 1879, and November 5, 1879, be declared and stated, and that said Reese be directed to execute and deliver to the plaintiff proper assignments of the inventions, letters patent, and application for letters patent, specified in the bill, “ upon the payment by your orator (which your orator hereby offers to make), of such sums of money as under the said agreements ” the court should decree to be due. (3) That a certain written instrument made by said Reese with The Harrison Wire Company be declared invalid and void, and decreed to be canceled. (4) Other and further relief. The Harrison Wire Company, doing business at St. Louis, Mo., was not served and did not answer, but an answer having been filed by Jacob Reese, the other defendant, on October 13, 1884, Mr. William S. Pier was appointed examiner and master, whose first report, filed on September 22, 1886, found substantially these facts: The plaintiff is a limited partnership organization in Philadelphia, under the act of June 2, 1874, and its supplements; its constituent members, consisting of ten corporations, one limited partnership and five natural persons, practically comprising all the manufacturers in the United States of what is known as Bessemer steel. A prominent feature of the plaintiff’s business was the purchase and control of patent rights, and the granting’ of licenses tp use the inventions, a monopoly of the use of which had been secured to it by letters patent or applications therefor. In the summer of 1879, the defendant, Jacob Reese, was the patentee and owner of numerous letters patent, and applications for letters patent, appertaining to the manufacture of iron and steel, and among others several relating to the “basic process ” and the “ open-hearth process,” and intended to accomplish improvements in the Bessemer manufacture by desulphurizing and dephosphorizing or otherwise refining or purifying the metal operated on. Mr. Reese’s -business then and since was, and has been, that of an inventor and metallurgist in the iron and steel industries. In July, 1879, negotiations were begun between the plaintiff and defendant for the sale and transfer to the former of patent rights. Pursuant to plaintiff’s request, defendant, on September 1, 1879, addressed a written statement or prospectus of certain patented inventions, concerning which he offered to make any arrangement which might be to the mutual interest of the two. This statement embraced a number of patents already granted to Mr. Reese, and a number of applications pending, with one of which was a reference to a notice of interference between an application by S. G. Thomas and himself. On September 4, 1879, Mr. Reese submitted to Mr. Andrew Carnegie, connected with the plaintiff company, the following proposition: In consideration of $1 to me paid, receipt whereof is hereby acknowledged, I hereby agree to transfer, sell, assign to you the exclusive right to use all and every patent either granted or applied for, together with all renewals, re-issues or improvements of the same which can be used or relate or apply in any way to the Bessemer or pneumatic process in the United States, transfers to be made as required by your attorney, upon your agreeing to pay me cash, $5,000 and a royalty of five cents per ton upon every ton of ingot made by the so-called Thomas & Gilchrist process, and under this patent, until said royalty shall reach the sj>un of $10,000 per annum, after which no further payment is to be made; this sum being the maximum to be paid in any one year. You to have sixty days in which to accept or reject this proposition. In witness whereof I hereunto attach my hand and seal this 4th day of September, 1879. Jacob Reese. This proposal was presented by Mr. Carnegie to the plaintiff at the regular meeting of its managers about the time of its date, and was by them declined, the reason assigned by its secretary in a letter to Reese being because he stipulated for a royalty on the Thomas process instead of his own, thereby implying (as the letter said) the validity of the Thomas patents as not interfering with his. In this letter, dated September 9, 1879, the plaintiff invited a renewal of the negotiations, and clearly intimated a desire that its refusal of his option should not be treated as a finality, but that the offer, if modified as to the Thomas patents as proposed, would be accepted. Accordingly negotiations were renewed, and on the 25th of the same month the parties met in Philadelphia, when the following contract was signed: Memorandum of agreement, made and entered into this 25th day of September, A. d. 1879, between Jacob Reese, of the city of Pittsburgh and state of Pennsylvania, of the first part, and the Bessemer Steel Company, Limited, of the city of Philadelphia and the said state, of the second part. The said parties, for themselves, their executors, administrators, successors and assigns, in consideration of the premises and the sum of $1, by each paid to the other, the receipt of which is hereby acknowledged, hereby covenant, promise and agree to and with each other, as follows, to wit: 1. That the said party of the first part will sell, transfer and assign to the said party of the second part, and the said party of the second part will buy from him, the following described letters patent, issued by the United States, belonging to the said party of the first part, viz.: Letters Patent, No. 55,710, dated June 18, 1866. Letters Patent, No. 57,969, dated September 11, 1866. Letters Patent, No. 65,830, dated June 18, 1867. Letters Patent, No. 193,551, dated July 24, 1877. Letters Patent, No. 219,519, dated September 9, 1879. And also, the inventions, methods and processes covered by •applications for- letters patent made by the said party of the first part, which are now pending in the patent office of the United States, as well as the letters patent which may be issued thereon, for (1) a method or process of decarbonizing and desiliconizing metals in a gannister-lined converter, and dephosphorizing the metals in a basic-lined vessel; (2) a three-period invention with three vessels and hot blast, and (3) a method or process for desiliconizing and decarbonizing metals in a silicouslined vessel, and further refining it in an open-hearth, with or without basic, lining, together with all other letters patent, and applications therefor, if any, which belong to the party of the first part, relating to, or connected with, the manufacture of pig iron, iron or steel ingots, blooms and billets, and the conversion or treating of iron or steel into rails, blooms, billets or plates, and together, also, with any and all rights, if any, winch the said party of the first part has, to receive or recover royalties from parties who have by him been licensed to use any of the said patents, processes, or inventions in such manufacture, conversion or treating. . The assignments of the said letters patent now existing shall be made as soon as possible hereafter, and the assignment of such letters patent as may be issued under the said applications shall be made as soon as possible after the same shall be issued severally; it being understood, however, that before the party of the second part shall become bound under this agreement to pay for the said letters patent, or the inventions covered by the said applications, the title of the party of the first part thereto shall be made satisfactory to the solicitor of the party of the second part, and the mode or form of assigning or transferring the same shall be approved by him. The said assignments shall also cover and embrace any and all re-issues, renewals, improvements or extensions of the said letters patent now issued or which may hereafter be issued under the said applications, or any modifications thereof, and any and every of them, and the party of the first part agrees to use all proper efforts to obtain extensions of the said letters patent, as they máy severally expire. 2. Upon satisfactory assignments of the said letters patent, and the said inventions described in the said applications being made as aforesaid, the party, of the second part will pay to the party of the first part the sum of $5,000, and, in addition thereto, will thereafter pay to him five cents upon every ton of 2,240 pounds of metal manufactured under the said letters patent, either by the said party of the second part or by other parties in pursuance of licenses granted by the said party of the second part; it being agreed and understood however, that the amount thus to be paid shall not in any one year exceed the sum of $10,000 for the number of tons of metal manufactured in that year, irrespective of the number of tons so manufactured. 4. The said party of the first part will use diligent efforts to procure letters patent upon the said pending applications, and to sustain the said letters patent already issued, and if the said, party of the second part shall hereafter, at the request of the said party of the first part, advance any sum or sums of money for the purpose of procuring or maintaining or defending the said letters patent, or any of them, in the office of the commissioner of patents of the United States, the said party of the second part shall have the right to deduct, the amount of such advances, not exceeding the sum of $5,000 in the aggregate, from the first moneys which would be due under this agreement to the said party of the first part, in payment of the said sum of 5 cents per ton of metal manufactured, as aforesaid. 5. Upon the said assignments being made, as aforesaid, the party of the second part will, by proper instrument in writing, give to the party of the first part, without any other consideration than is embraced in the premises to which this agreement relates, an exclusive license and control over the processes and methods described in the said letters patent and applications, [except?] so far, and so far only, as they relate to other metals than iron and steel, and the form of the said writing shall be - subject to the' approval of the solicitor of the party of the second part. 6. To avoid misunderstanding, it is further agreed and,understood that the said sum of 5 cents per ton is to be paid but once for the conversion of iron ore into pig metal, or through the finished processes into steel, whether the processes are carried through by one or several and different manufactures. If the manufacture shall end with the making of pig iron metal, then the sum stated is to be paid. In witness whereof, etc..... At the time of the execution of this contract, the plaintiff paid defendant on account of the consideration, $100, and a week later, a like sum, and on October 21st, following, $800. The next day, October 22d, defendant and Ms wife executed an assignment of the letters patent specified in the agreement, to the plaintiff, and the inventions, improvements and processes covered thereby, including any improvement, extension or reissue of said letters patent, or any of them wMch might thereafter be granted, made over or obtained, as fully and entirely as the same would have been held by the assignors or either of them had that assignment not been made. On the same day, the same assignors assigned to the plaintiff likewise the inventions and rights secured by the applications for letters patent specified in the agreement. Both these assignments were duly recorded in the Patent Office at Washington. On November 5,1879, the defendant executed the following paper, wMch was then attached to the agreement of September 25, 1879: It is also agreed that the foregoing instrument shall embrace in and among the inventions and improvements wMch I shall be bound thereunder to assign and transfer to the said Bessemer Steel Company,' Limited, any. and all processes in the metallurgy of iron and steel or devices for the manipulation of the same relative to the manufacture of pig iron, iron or steel ingots, blooms, billets and plates, which I may hereafter invent and apply to have patented during the continuance of the foregoing agreement, and also any letters patent which may issue for such processes and devices, provided the said Bessemer Steel Company, Limited, shall elect to take, own and possess the same; such processes and devices when transferred to the said company at its request, to *be subject to all the' provisions of the foregoing agreement with the same effect in all respects as if they had originally been mentioned therein. Witness my hand and seal this 5th day of November, A. D. 1879. ■ Jacob Reese. [l. s.] No consideration is recited for the making of this instrument. The instrument, however, is under seal. On the same day that Reese sealed it, the plaintiff paid him $4,000, being the balance of the hand-money due him under the agreement of September 25, 1879. After entering into the agreement of September 25, 1879, “ Exhibit A” of the Bill, the defendant in good faith zealously devoted himself to the performance of his obligations thereunder. The assignments of the patents and inventions specifically required thereby were made and accepted by the plaintiff; counsel was at once retained by him, defendant, to defend the patents and press the applications, and under their advice, plaintiff consenting, he made applications for re-issues of three of the assigned patents, Nos. 65,830, 193,551 and 219,519, for the purpose of securing more extensive rights predicated on more comprehensive claims than were secured by the original patents. These re-issues were refused by the commissioner of patents, but not through any fault of defendant; he litigated effectively interference cases in the patent office growing out of the applications which he tendered to the plaintiff under the instrument of November 5, 1879; he made many new inventions which he admitted to be within the scope of his agreements of which he advised the plaintiff and which he tendered to it for acceptance or refusal, and he devoted his time, skill, learning and energy almost exclusively to these results and to inventing numerous improvements and processes appertaining to the metallurgy of iron and steel. For some time after making their agreement both parties seem to have been satisfied with the relationship thereby created. Shortly after the last instrument had been consummated, the commissioner of patents decided an interlocutory appeal' in a patent cause, Reese v. Thomas, involving the validity of one of the assigned inventions, in Reese’s favor; and about this time the correspondence indicates entire harmony and mutual recognition of concurring interests. It so continued until in March, 1880, when Mr. Holly, the plaintiff’s chief engineer, to whom it had referred the Reese inventions, made a re'port both as to the practical value of the processes therein, and as to the validity of his letters patent and applications, with special reference to their competition with the Thomas patents and applications, between which and Reese’s there was such interference that both could not be valid. This report was against the validity of the Reese patents, or at least against those to which the report attributed value. About the same time the same engineer reported, and plaintiff advised defendant, that none of its constituent members were willing to make experiments to test the value of defendant’s processes. Henceforward until this bill was filed, a period of more than two years, the correspondence between the parties in evidence indicates that defendant was urging upon plaintiff its obligation to put in practice the assigned inventions, to pay him royalties thereon and especially upon the open-hearth steel made by its members, to furnish him with money necessary to make the proper applications for letters patent on new inventions, and for the support of himself and family, and was protesting against the plaintiff’s conduct; and that the plaintiff, while insisting upon retaining its contract rights upon Reese’s inventions, was intent upon investing as little money in them as possible. The plaintiff, having covenanted to pay defendant royalties on all metal produced under the assigned inventions, made no effort whatever to carry them into practice, or to make them successful and remunerative to defendant by the manufacture of iron or steel by their processes. Reese himself made numerous attempts to have them license the Shoenberger iron manufacturers of Pittsburgh, who had offered to pay a royalty of 25 cents per ton on all they might manufacture under his patents ; but nothing came of them because of plaintiff’s apparent disinclination to grant the licenses. He also applied to plaintiff for authority to procure iron manufacturera to take licenses from plaintiff at 25 cents per ton for metal produced under any one of Ms patents, or 50 cents per ton for the use of all; but Ms application was not answered. Plaintiff neither interposed objection, nor demand, nor claim, to the manufacture of open-hearth steel by any of its constituent members, though one of the patents assigned by defendant, to wit, No. 65,830, embraced in its claims the open-hearth process, and that kind of steel was made by several of its members. Plaintiff not only did not put these inventions into practice so that they would earn royalties, but it refused to experiment with a view of ascertaining what might be accomplished by their use. Defendant frequently and rgently called plaintiffs attention to this neglect, and also to its failure to account for its use of the open-hearth process, and protested against it as being a breach of the contract between them, and he made demands for royalty arising out of the use of the open-hearth X>rocess, which were refused. A prinoijral motive tending to induce the defendant to make the contract was, that the plaintiff comprised in its membership all the Bessemer manufacturers in the United States, and by putting his patents into practical use it would make his royalties very valuable, and the plaintiff knew that this motive-influenced him thereto. In June, 1880, about three months after plaintiff’s chief engineer had reported against the Reese x>rocesses, and after the refusal of plaintiff to make experiment thereof, the defendant-requested an option of plaintiff to re-purchase his inventions- and patents at the price of plaintiff’s advances with interest,, and was refused. Under the several contracts between the parties the xdaintiff paid and advanced the defendant §12,989.23 altogether, but at various times. Five thousand of it was paid as the cash consideration mentioned; §4,497.23 were advanced by plaintiff’ and charged against defendant on account of royalties; §1,000-was paid Mm pursuant to an agreement between them that he should release plaintiff’s members from all claim for infringement or royalties that might have accrued prior to the contract; and §2,500 was paid Mm as the first instalment under the Carnegie contract of September 20, 1881 [hereafter], at that date. The advances of $4,497.23 were for expenses in the patent office, counsel fees, etc., incurred in obtaining letters patent, filing claims, applications, etc., and traveling expenses, and were made from time to time upon defendant’s demands. They were not made without much objection on plaintiff’s part, and it made frequent demand for detailed statements of his expenditures, which defendant furnished in response thereto. On December 31, 1880, defendant notified plaintiff that on certain dates specified he had applied for letters patent for eight different inventions, describing them, and asked plaintiff to elect whether it would take them or not. On March 25, 1881, plaintiff elected to take these inventions as offered. On June 18, 1881, defendant notified plaintiff that he had filed applications at specified dates for letters patent on eight other different inventions, accompanying this notification by a statement of expenses incurred upon the applications and a balance of a former account rendered. Plaintiff paid to defendant the two items of this statement, one of them on June 20, 1881, and the other on June 23, together amounting to $1,280.17, and on July 15, 1881, it notified defendant that it elected to take the letters patent which might be issued on said applications. In the summer of 1881, defendant complained to Andrew Carnegie, of the treatment he had received, that he had been unable to get money enough from the plaintiff to live on, and negotiations were thereupon begun between Mr. Carnegie and defendant for the assignment of the latter’s rights growing out of the contracts of 1879. During these negotiations Mr. Carnegie offered defendant $20,000 for his said interests, and again $20,000 cash, and $5,000 per annum for five years, and at last $5,000 per annum during the time the contract of September 25, 1879, was operative. This last proposition was accepted, and on September 20, 1881, the following paper was executed and delivered: Whereas the undersigned, Jacob Reese, and the Bessemer Steel Company, Limited, on September 25, 1879, did enter into a certain agreement relative to letters patent of the United States, and to applications for letters patent, to which agreement a supplement was added, dated November 5, A. D. 1879, which said agreements have been placed of record in the office of the commissioner of patents of the United States, in Liber T 26, page 134, of Transfers of Patents. Now it is hereby agreed, by and between the said Jacob Reese, party of the first part herein, and Andrew Carnegie, party of the second part herein, in consideration of the premises, as follows, to wit: 1. The said party of the first part hereby assigns, transfers and sets over unto the said party of the second part all his right, title and interest in and to the aforesaid agreements entered into between him and the Bessemer Steel Company. Limited, and in and to all rights reserved or acquired by him thereunder, including all rights to recover or receive royalties or fees for the use of any or all patents to which the said agreements referred. 2. The said party of the first part hereby agrees to and with the said party of the second part that he will faithfully do and perform all acts and services which, under the before referred to agreements, he became bound to do and perform. 3. The said party of the first part hereby agrees to and with the said party of the second part that he, the said party of thp first part, will take, adopt and prosecute such methods and proceedings with reference to existing interferences now pending in the patent office of the United States between him and Sidney G. Thomas, Harmet and Osann, and with reference to obtaining re-issues of any or all letters patent referred to in the before-mentioned, agreements, and with reference to applications for new or original patents instead of re-issues, as may be requested by the said the Bessemer Steel Company, Limited, the same to involve no further expense to the said party of the first part. 4. In consideration of the aforesaid assignment and undertaking made by the said party of the first part, the said party of the second part hereby agrees to and with the said party of the first part that he, the said party of the second part will pay to the said party of the first part the sum of $5,000 annually so long as the said agreements with the said the Bessemer Steel Company, Limited, shall continue to operate, and the said company, or its assigns,-shall hold letters patent thereunder, the said amount to be paid in advance in equal half-yearly payments of $2,500 each. 5. The foregoing provisions shall enure to the benefit of, and bind the executors, administrators and assigns of the parties hereto, it being understood and agreed, however, that in case the said party of the second part shall assign and transfer this agreement to the said the Bessemer Steel Company, Limited, or to any six of the companies composing the same, all liability on the part of the said party of the second part individually, or of his executors, or administrators, under or by reason of this agreement, shall terminate and end. In witness whereof..... On the day this agreement was executed the defendant received from the plaintiff on Mr. Carnegie’s order, the first semi-annual payment of $2,500 provided for therein. It was one of the provisions of that instrument that Mr. Carnegie-might assign it to plaintiff and without defendant’s recourse to him, and it was understood at the time that Mr. Carnegie was representing the plaintiff; but Mr. Carnegie did not, in fact, assign to plaintiff, the right secured until May 11, 1882. Prior to that and on the maturity of the second semi-annual instalment, defendant demanded payment of Mr. Carnegie of said instalment, was met by a request to meet him, Mr. Carnegie, at plaintiff’s office in Philadelphia. This was. not convenient for defendant, and instead of going there he drew on Mr. Carnegie at plaintiff’s office, but the draft was returned unpaid. A few days before this instalment became due, plaintiff wrote defendant, intimating that the money would not be paid until a list of his applications for patents should be furnished by him to plaintiff. March 18,1882, defendant readied to this, protesting against a refusal to pay the instalment when due on any such ground, and offering to transfer all the patents that plaintiff was entitled to, and, in order that this might be determined, asking for a statement of plaintiff’s claim which he might submit with the contracts to counsel for advice. This request was not complied with. The second payment was not made when due, and nothing but the first payment has ever been paid under the contract of September 20, 1881. On April 3, 1882, defendant sent to plaintiff a list of his patents and of applications made by him. The plaintiff still refused to pay the $2,500, but made a new condition precedent, that he should assign to it all the inventions to which it was entitled, and in all respects perform his contract, but in no way specifying what inventions he should assign, or what other acts he should perform. On April 29, 1882, the defendant assigned to The Harrison Wire Company all his right, title and interest, limited to Jackson county, 111., in and to certain letters patent and applications therefor which were among those tendered to the plaintiff and by it accepted, but none of these so assigned had been accepted by the plaintiff prior to July 24, 1882, the date of the notice hereinafter set forth, though all of them were on the list furnished on April 3,1882. At the time of this assignment to The Harrison Wire Company, the latter had actual notice of the contract of September 25, 1879, and November 5, 1879, between plaintiff and defendant. On July 24, 1882, Mr. Reese served upon the plaintiff the following notice: Pittsburgh, July 24, 1882. To the Bessemer Steel Company, Limited : Gentlemen : Owing to the failure on your part to comply with your contract obligations under the contract between us, dated September 25, 1879, and supplement of November 5, 1879, as modified by my agreement with Andrew Carnegie, of September 20, 1881, which was assigned to you, and your constant failure and refusal after demand to pay me the instalment of $2,500, due me on March 20,1882,1 now rescind and annul said contracts, and notify you of the same. Yours truly, Jacob Reese. The plaintiff then filed this bill. From the foregoing facts found by the master, and especially from the refusal .of the plaintiff to pay the defendant the moneys due under the contract of September 20,1881, until he performed demands of so general a nature as to be impracticable, the master found that the plaintiff did not act in good faith, hut made a palpable and wilful breach of its obligations under the contract. The master then found as conclusions of law: 1. That the inventions which the defendant was in law hound to assign to plaintiff, “ were all those which were specially mentioned in the agreement of September 25, 1879, and those which belonged to the defendant at that date, whether patented or not, if letters patent were afterwards applied for, which related to or were connected with tfie manufacture of pig iron, iron or steel ingots, blooms and billets, and the converting or treating of iron or steel into rails, blooms, billets or plates, and also all those inventions specifically set out in the sixth paragraph of the bill, together with all re-issues, renewals, improvements or extensions of the letters patent issued for the same,” with three exceptions: (1) an improvement in regenerative metallurgical furnaces;- (2) an improvement in making lime brick; (8) an improvement in the production of ferrophosphorus. 2. That as equity had jurisdiction to enforce a contract for the sale of a patent right: Cogent v. Gibson, 33 Beav. 557; 1 White & T., Lead. Cas. in Eq., 4th Amer. ed., 1070, the plaintiff could have the relief by specific performance which it prays, but because, as a rule, whenever the equity of a party under his contract is not clear, or his case is unconscionable or inequitable, courts of equity refuse specific execution and leave the party to his action at law to recover damages for his breach of the contract: Weise’s App., 72'Pa. 354, equity would decline to enforce this contract and leave the plaintiff to his remedy at law: 3 Pom. Eq. J. 400; Henderson v. Hays, 2 W. 148; Ewing’s App., 18 W. N. 29. 3. That the injunction granted at the preliminary hearing should be dissolved. 4. The master then proceeded: Reese agreed by the first instrument, as part of the consideration moving to the plaintiff for the payments aforesaid, to use diligent effort to procure letters patent on pending applications, and to sustain those already issued, and to obtain extensions of those expiring; also by the Carnegie agreement, that he would take, adopt and prosecute such proceedings with reference to existing interferences pending in the patent office between him and certain others with reference to re-issues, and applications for new or original patents instead of re-issues, as the plaintiff might request. After having received a material portion of the consideration, can he even, after proving bad faith and oppression in the other party, escape from his obligation by rescission? The master does not think so. For his injuries sustained there are ample remedies, and a proper application to the tribunals established for such purpose would have given him full relief. Therefore, the only effect which his letter of J nly 24, 1882, had, was to terminate the privilege of election which plaintiff up to that time enjoyed under the instrument of November 5, 1879. The plaintiff’s continuing obligation was at first to pay royalties, changed by the Carnegie agreement to semi-annual instalments of |2,500. Only one of these instalments has been paid, that on September 20, 1881. The plaintiff is therefore in default to the defendant in these semi-annual instalments since March 20,1882, with interest thereon from the dates of their respective maturities. We have now determined what inventions defendant agreed to sell the plaintiff; that the latter was not entitled to a specific performance; that the injunction should be dissolved; that the equitable title to certain of Reese’s inventions is in the plaintiff, and that defendant is trustee therefor with a lien for further performance; and that plaintiff owes to defendant a sum of money. There ought to be a decree entered in this case which would be a finality of all disputes and litigation between these parties arising out of these contracts. But the plaintiff is not entitled to equitable relief, and the defendant has not asked for it. Were there a cross-bill here which would warrant it, the master would recommend that a decree be entered in favor of the defendant for the sum of money indicated to be paid, upon his assigning and transferring to the plaintiff the legal title to the inventions in which the plaintiff now has an equitable title, as hereinbefore indicated. In the absence of such cross-bill, or prayer, he can only recommend that the injunction be dissolved and the bill be dismissed at the costs of the plaintiff. The master submits herewith his minutes, the testimony taken, and the form of a decree, in conformity with the foregoing. Exceptions filed by both parties were overruled by the master, and being renewed on the filing of the bill, the court, Stowe, P. J., on argument, did not agree with the master that the bill in the ease must be dismissed,, but thought a decree could be made under which justice might be done to both parties, and an end made to the controversy; and the court was of opinion that a decree should be made requiring the defendant to convey and assure to the plaintiff the several patents found by the master to belong to it. upon payment of the money due under the terms of the contract of date September 20, 1881. An order was therefore made referring the cause back to the master to ascertain and report specifically what patents were to be conveyed to the plaintiff, with power to take further testimony if necessary. The master afterwards filed a supplemental report, specifying by their patent numbers and as exhibits, the “ inventions belonging to the defendant on September 25, 1879, whether patented or not, if letters patent were afterwards applied for,” which were to be conveyed to the plaintiff under his first conclusion of law, ruling that certain patents and applications for patents for processes productive of results which could not be classified with rails, blooms, billets or plates, were not to be brought within the definition set forth in his former report, and approved by the court, circumscribing the inventions to be conveyed, and should not be embraced in the decree. On the coming in of this report, with certain exceptions thereto overruled by the master, the court, Stowe, P. J., filed the following opinion: The master was mistaken in assuming in his report that the court had already absolutely indorsed his construction of the contract between plaintiff and defendant Reese in regard to what patents, etc., the latter had agreed to sell and transfer to plaintiffs. The question as now presented was not raised by any exception filed by plaintiff, nor was it considered by the court. The great matter under the former argument was whether the finding of the master that the bill should be dismissed, should be sustained. If so, then everything else was immaterial. If not, then, indeed, the question of what should be conveyed by defendant to plaintiff became important, and it was only after decree that we discovered that any serious question arose in regard to it, and it was to learn to what patents, etc., the master referred when he said in his report that defendant was bound to assign to plaintiff all those specified in “ Exhibit A ” and those which belonged to defendant on September 25, 1879, whether patented or not, if patents were afterwards applied for, which related to, or were connected with, the manufacture of pig iron, iron or steel ingots, blooms and billets and the converting or treating of iron or steel into rails, blooms, billets or plates, etc., etc. How this is the exact language of the contract of the parties as set out in “ Exhibit A,” and throws no more light upon what particular patents, etc., involved in this controversy than does the contract itself. It is true that the argument of the master indicates that he gives a limited interpretation to the agreement, restricting it to such patents, etc., only as were connected with the manufacture of iron or steel into rails, ingots and billets, and not such as were connected with the metallurgy of iron or steel; it would have been somewhat difficult to except to his specific finding of fact. As I understand the contract, “ Exhibit A ” and its supplement, “ Exhibit B,” they both cover exactly the same subject, the only substantial difference being that in the latter Reese agrees, in addition to what he had previously agreed, “to assign and transfer any and all processes,” etc., as before, “ which he may (might) thereafter invent and apply to have patented during the continuance of the agreement ‘ Exhibit A,’ and also any letters patent which said Bessemer Steel Company shall elect to take,” etc. The case now presented covers the question fully and specifically, and must be met. A careful consideration of the contracts compels me to differ radically from the conclusion expressed by the master in regard to the extent of the agreements. I am of opinion that defendant should assign to plaintiff all the patents, applications, etc., that are found by the master should be assigned. And also all the others found by the master should not be assigned, except patents No. 346,498 and No. 350,558 and “Exhibit No. 306,” being an application for patent for invention of phosphate of lime for fertilizing. . . . Thereupon, on July 6, 1887, a decree was signed ordering and requiring Jacob Reese to convey by proper conveyance certain patents, described by their numbers, also certain inventions and applications for letters patent for the same, described as in numbered exhibits; perpetually restraining said Reese from assigning or transferring any of said inventions, letters patent or applications for letters patent, or from issuing or granting any licenses to use the same or any of them; and decreeing that the assignment by said Reese to The Harrison Wire Company, set out in the bill, be declared void and of no effect; that the plaintiff is indebted to the defendant in the sum of $82,110.83, to be paid forthwith to the defendant by the plaintiff upon the receipt by the former from the latter of the assignments of the inventions, letters patent or applications for letters patent hereinbefore mentioned or referred to, and that the plaintiff pay the costs, including á master’s fee of $1,000. This decree is shown more fully in the Opinion of the Court. Then the defendant took this appeal assigning as error the overruling of various exceptions to the original report of the master, and of various exceptions filed to the form and sul> stance of the decree.
122 Pa. 417Frost v. Cherry (1888)
EBBOB TO THE COUBT OE COMMON PLEAS OE VENANGO COUNTY. No. 152 October Term 1888, Snp. Ct.; court below, No. 63 August Term 1887, C. P. On July 30, 1887, an appeal was entered by the defendant from a judgment recovered before Luman Stephens, city recorder, by A. Frost against John Cherry, which appeal was put at issue by the prothonotary, on the plea of nil debet. When the case was called for trial on October 10, 1887, a case stated was agreed upon and filed, in the nature of a special verdict, and was as follows: A. Frost, the above named plaintiff, was heretofore, to-wit: on the first day of July, A. D. 1887, possessed of a certain close, to-wit: fields and grounds kept for inclosures, in the township of Cherrytree, in the county of Venango; and, while so thereof being possessed, the cattle of said defendant on, to-wit, the first day of July A. D. 1887, entered into and trespassed on said fields and grounds kept for inclosures, to the damage of the said plaintiff in the sum of six dollars ; and said plaintiff further states that the said close, to-wit: the fields and grounds kept for inclosures, were not fenced in requirement to the provisions of the act of 1700, or any subsequent legislation as to fences in the commonwealth of Pennsylvania. And the said defendant admits the trespass as above alleged ; and, that prior to the time of said trespass, an election had been held in said county of Venango in pursuance of the provisions of § 2, act of June 23,1885, P. L. 142, and for the purpose therein set forth, and that a majority of the electors of said county voted at said election “In favm of repeal.” If the court be of the opinion that upon the facts as above stated the plaintiff is entitled to judgment, then judgment so to be entered; if not, then judgment for defendant; the costs to follow the judgment, and either party reserving the right to sue out a writ, of error therein. The cause was argued on October 26,1887, and on January 23, 1888, the court, Taylob, P. J., filed the following opinion and decree: It being admitted in the facts agreed upon, that the trespass was committed by the cattle of the defendant upon fields and grounds improved or kept for inclosure, and not being fenced, it may be conceded that without the aid of act of June 23, 1885, the plaintiff could not recover: Adams v. McKinney, Addison, 258; Gregg v. Gregg, 55 Pa. 227. The questions raised and argued by counsel may be reduced to these propositions: 1. Was the 1st section of the act of 1700 in force in Yenango county at the time of its alleged repeal, in pursuance of the act of June 23, 1885? 2. Is said act of June 23, 1885, unconstitutional by reason of its being special or local legislation ? 3. Is said act unconstitutional by reason of its delegation of the sovereign power to the people ? 1. As to the first question, was the 1st section of the act of 1700 in force in this county at the time of the alleged repeal? Since the act of 1700 there has been enacted in this commonwealth 65 general and local acts for separate counties, and at least 120 local acts affecting particular cities, townships and boroughs, relating to fences and strays. By the successful overthrow of the authority of the British crown, all laws theretofore enacted under its authority, or by its representatives, were abrogated, and on the 28th day of January, 1777, the general assembly enacted the following statute : “ That each and every one of the laws or acts of general assembly that were in force and binding on the inhabitants of said province on the 14th day of May last, shall be in force and binding on the inhabitants of this state from and after the 10th day of February next, as fully and effectually to all intents and purposes as if said laws had been enacted by this general assembly: ” 1 Sm. L. 429. During the seventy-six years which elapsed between the enactment of 1700 and the 14th day of May, 1777, several acts relating to fences and strays had. been passed. An examination of these acts shows that on the 14th day of May, 1777, the only part of the act of 1700 then in force was the first clause, which provides: “That all cornfields and grounds, kept for inclosure within the said province and counties annexed, shall be well fenced.” In the case of Gregg v. Gregg, decided in 1868, Justice Strong, delivering the opinion, reviews the different acts, and holds that the clause of the act of 1700, above recited, is in force without restriction or limitation to any portion of the state. I am, therefore, of the opinion that the first clause of the act of 1700, requiring owners of improved lands to fence the same, was in force in this county. 2. The second proposition raises the question of the constitutionality of the act of June 28,1885, by reason of its alleged special or local legislation. The act is entitled: “ An act to repeal the 1st section of an act for regulating and maintaining of fences, passed in 1700.” After reciting the 1st section of the act of 1700 verbatim, it closes as follows: . . . . The 7th section of article III. of the constitution of 1.874, inter alia, provides: “ The general assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, horou-ghs, or school districts.” In another clause: “ Nor shall the general assembly indirectly enact such special or local law by the partial repeal of a general law ; but laws repealing local or special acts may be passed.” The word, affairs, as herein used, has received a judicial construction. Prior to the framing and adoption of the constitution of 1874, special or local legislation had become an evil of great magnitude, and it required and received special attention upon the part of the convention moulding the organic law, in order, if possible, to effectually prevent the recurrence of the public wrongs and evils which had been perpetrated by such special and local legislation in the past. The earnest endeavors of the members of the convention to effectually eradicate all special or local legislation, thenceforth, from our statute books, is evident by the fact that they not only prohibited such legislation in plain, unmistakable language, thus: “ The general assembly shall not pass any local or special law,” etc., but to emphasize their intention that no more of the vicious legislation should in an indirect manner be enacted, in another clause they farther extended the prohibition as follows: “Nor shall the general assembly indirectly enact such special or local laws by the'partial repeal of a general law,” etc. Our Supreme Court, in their construction of acts apparently in conflict with these wise provisions of the constitution, have rigidly adhered to such an interpretation as carried into effect the intention of its framers, and upon every occasion have placed their seal of condemnation, not only upon every open violation, but also every secret attempt to evade the wise provisions “ under the attempted disguise of a general law:” Scowden’s App., 96 Pa. 425. That general legislation upon all subjects is impossible, and therefore classification upon subjects and persons is necessarily without the limits of constitutional prohibition may be conceded : Wheeler v. Philadelphia, 77 Pa. 346; Kilgore v. Magee, 85 Pa. 401; Commonwealth v. Patton, 88 Pa. 258. Under the latest decision of our Supreme Court, a local or special act is one which operates or may operate within only a portion of the territory occupied by the persons or things to which the legislation naturally and properly relates. In the light of this definition of what constitutes local or special legislation, let us examine the act of 1885. If the 1st section stood alone, there would be no difficulty, for it simply repeals the 1st section of the act of 1700 ; but the 2d section is inseparably connected with the 1st. The 1st is a dead letter upon the statute books, dependent upon the provisions of the 2d section being carried affirmatively into effect; further, the 1st section expressly provides that the 1st section shall not take effect until the provisions of the 2d are fully consummated. The two sections must, therefore, respectively be construed and passed upon as a whole. The first thing to be noticed is the innate modesty of the act. The 2d section commences: “ That it shall be the duty of the sheriff of any county, on the request of the county commissioners thereof,” etc. The whole law is to be put in operation at the request of the county commissioners. Suppose the commissioners should refuse to act, how would they be compelled? I am aware that the word “may,” in some cases where the public interests are at stake, has been construed as “ shall,” but I do not now remember of a single case where a simple request has been enforced by mandamus. I am informed, whether correctly or otherwise, that, in the mountainous counties of the state, the citizens are largely opposed to the law; whether true or not, matters not; the principle is the same. Each separate county in the state may accept of the provisions, or may reject them. The act contemplates the division of the state into counties; each one to act by itself, and for itself. In one or more the popular vote may be in favor of “ the repeal,” and in such county or counties it is provided that “ the act shall take effect forthwith,” and thenceforth therein the common law is the rule of action. And every owner of cattle in such county would be held responsible for any damages arising from their trespasses. Other counties may vote “against the repeal,” qr not vote at all, and in such counties the first clause of the act of 1700 still remains the law. Thus it is seen that we have different laws upon the same subject-matter, bounded and defined by distinct territorial limits. Such a result creates the very evil the framers of the constitution intended to remedy or prevent. It matters not that every county in the commonwealth may accept the provisions of the act of 1885; the vice in the act consists in that any county may reject it. In Scranton Sch. D.’s App., 113 Pa. 176, the 1st section of the syllabus is as follows: “If an act regulating the affairs of counties, cities, townships, etc., .... either produces or may produce local results, it offends against § 7, article III. of the constitution, and is therefore void.” In the opinion it is, inter alia, said: “ Whether the methods • prescribed by the act shall be the law, will depend, not upon the act of the legislature, but upon the will of others who are hot law-makers at all; and what may be the law in one city of the third class, may not be the law in another city of the same class. In other words, a majority of the members of the city council, in any city of the third class, may impose upon the inhabitants of that city a method of taxation which may not prevail in any other city of this commonwealth. A law which authorizes this to be done, in our judgment, is clearly obnoxious to the 7th section of article III. of the constitution, which prohibits the general assembly from passing any local or special law regulating the affairs of counties, etc.....The circumstance that the power to determine the question is delegated to another body does not at all affect the question. The practical result is the same ; the law of 1875 will be limited to the one or more cities that do accept, and that makes it local. All our recent decisions are to the effect that if local results either are, or may be, produced by a piece of legislation, it offends against the provisions of the constitution, and is void,” citing Commonwealth v. Patton, 88 Pa. 258; Scowden’s Appeal, 96 Pa. 425, and other cases. This ruling of the Supreme Court is decisive of the question. Some counties may accept, "the provisions of the act of 1885, while others may reject, and the practical result is that the act will be limited to those counties who do accept, aud this makes the act local. I am, therefore, of the opinion that the act clearly is within the constitutional prohibition, and is void. The third proposition, relating to the delegation of sovereign power, would seem to be ruled by Locke’s App., 72 Pa. 491; but the view which I have taken of the second question raised makes it unnecessary to express an opinion upon it. For the reasons given, judgment is ordered to be entered for the defendant. Judgment having been entered as ordered, the plaintiff took this writ and specified that the court erred: 1. Tn declaring the said act of June 28, 1885, unconstitutional. 2. In rendering judgment for the defendant, on the case stated.
122 Pa. 428Beatty v. Beatty (1888)
1 OF ALLEGHENY COUNTY, IN EQUITY. No. 257 October Term 1887, Sup. Ct.; court below, No. 764 June Term 1887, C. P. in Equity.
122 Pa. 436Kerr v. Martin (1888)
No. 3 October Term 1888, Snp. Ct.; court below, No. 75 January Term 1885, C. P. On November 17, 1884, an action of ejectment was begun by M. C. Martin and C. Meyer against Howard Kerr and wife, which was afterwards put at issue under the plea of not guilty. On July 14,. 1887, arbitrators, chosen under a compulsory reference, filed an award in favor of the plaintiffs for the land in dispute, and judgment was entered thereon on the same day.
122 Pa. 439Road in Hempfield Township (1888)
CERTIORARI TO THE COURT OE QUARTER SESSIONS OP WESTMORELAND COUNTV. No. 23 October Term 1888, Sup. Ct.; court below, No. 23 May Term 1886, Q. S. On July 13, 1886, upon petition presented, viewers were appointed to lay out a road in Hempfield township from a point at or near the house of Moses Knappenberger, on the road from Grapeville station to Grapeville town, to a point near the barn of G. W. Crushore, on the road leading from Grapeville station, past the tannery of said Crushore, to the turnpike. The report of the viewers in favor of the proposed road was filed on September 4, 1886, aud on September 11th, it was “ approved by the court, eo die confirmed nisi, and road ordered to be opened thirty-three feet wide.” On November 13, 1886, G. W. Crushore filed various exceptions to the confirmation o£ the report of the viewers, and on the same day there was filed a petition for the appointment of re-viewers, aud re-viewers appointed, who on February 12, 1887, filed a report against the proposed road. On April 18, 1887, other exceptions to the report of the viewers wore filed on behalf of Mr. Crushore, and on May 7, 1887, on hearing, the court, Hunter, P. J., ordered that the report of viewers be “referred back to the viewers to agree upon the damages sustained to parties by said road, and to mark upon the draft the improvements, and especially the barn and corn crib of G. W. Crusliore, and report what releases you have procured from the landowners.” On June 27, 1887, the viewers filed a supplemental report, in favor of a location of the road differing in some particulars from the location as reported in their former report, and setting out certain releases obtained, the refusal of others sought for, and noting certain improvements along the line of route. On September 3, 1887, Mr. Crushore filed exceptions to this supplementary report, averring inter alia: (1) That the improvements were not indicated as the law required; (2) That under the order and reference no authority was given to view; (3) That the supplemental report returned a different road from that returned in the original report.4 On November 12,1887, the court ordered: “And now, etc. the report of viewers, as amended, is confirmed, and the clerk is directed to make the proper entry of record, sec. reg.” 8 Thereupon the exceptant took this writ and assigned as error, inter alia: 2. The order of November 12,1887, confirming the amended report.8 3. The failure to fix the width of the road in said order of confirmation. 4. The overruling of the third exception to the supplemental report.4
122 Pa. 442Township of Snyder v. Bovaird (1888)
ERROR TO THE COURT OR COMMON PLEAS OR JERRERSON COUNTY. No. 132 October Term 1888, Sup. Ct.; court below, No. 104 May Term 1887, C. P. On March 24, 1887, an appeal was filed by the defendant from the judgment of a justice of the peace in favor of Charles Bovaird and Benj. Shaw, for use of Charles Bovaird, against the township of Snyder. On April 16th, a narr was filed, in the first count declaring specially upon the following township order: $132.72. No. 4. Brockwayville, June 15,1885. Supervisors of Snyder township : Pay Charles Bovaird one' hundred and thirty-three dollars and seventy-two cents, for old order returned. [Signed by the supervisors.] The.common counts followed, and with the narr were filed copies of the foregoing order and of order No. 15 following hereafter. The defendant pleaded, non assumpsit, non assumpsit infra sex annos, payment with leave, etc. When the case was called for trial, on September 6, 1887, on motion of plaintiff the record was amended by striking out the words, “and Benj. Shaw, for the use of Charles Bovaird.” At a second trial on May 14,1888, it appeared, substantially, that on March 14, 1881, the accounts of R. K. Morey, one of the township supervisors for the preceding year, were settled by the township auditors and the following order given him: $106.57. No. 15. Brockwayville, Pa., March 14, 1881. The supervisors of Snyder township will receive this order from R. K. Morey or bearer for the sum of $106.57. [Signed by the auditors.] The day this order was received, Mr. Morey presented it to James McMinn, one of the newly elected supervisors, for payment. Payment being refused for want of funds, a memorandum was indorsed on the order, as follows: “March 14, 1881, presented to the supervisors. [Signed] James McMinn?’ Afterward, the same year, Mr. Morey transferred the order in the regular way of business to Charles Bovaird, having first endorsed thereon: “ I assign the within order to the bearer.” Mr. Bovaird made several unsuccessful demands for payment of the order, and held it until June 15,1885, when it was presented, after notice published by the supervisors calling for the presentation of outstanding orders, and was taken up and the order of that date declared upon delivered. In the course of the trial, R. K. Morey proved the order of March 14, 1881, and its consideration, when the plaintiff offered the order and the indorsements thereon as evidence of the amormt of the indebtedness and the date of presentation and demand upon James McMinn. The offer was objected to by the defendant, on the ground, inter alia, that the order was not negotiable. By the court: The objection is overruled and the testimony is admitted for the purposes stated, and to show a liquidation by the township auditors of the indebtedness to the legal plaintiff.1 Afterwards the plaintiff offered order No. 4, dated June 15, 1885. The offer was objected to for the reason that the plaintiff’s claim, or R. K. Morey’s claim, against the township, had been examined and adjusted by the auditors, duly appointed for that year and the year in which it accrued, and no supervisors elected for any subsequent year could take cognizance of it for any purpose except payment. By the court: It is received for the purpose heretofore stated in regard to the original order, as corroborating the fact of indebtedness, not to show a substantive claim.8 The court, Wilson, P. J., after- inferring to the evidence, instructed the jury: [The question of whether the legal or the equitable plaintiff is entitled to recover is not material in this action. The legal plaintiff was R. K. Morey; by virtue of his assignment the order passed to the ownership of Charles Bovaird, who is known as the equitable plaintiff. Where an equitable plaintiff ■seeks to recover from a defendant a claim which the defendant alleges has been paid to another, it is the duty of the defendant upon the trial to establish by a preponderance of evidence that the legal plaintiff has already been paid; and in the absence ■of such evidence introduced before the court and jury, it is immaterial in this action whether the township should pay Charles Bovaird or whether it should pay R. K. Morey.] 3 In ■ease of any conflict of that kind arising, there is a way to dispose of it, so that the township will not be compelled to pay the indebtedness twice. There seems to be no dispute as to the amount of this indebtedness, that is, that it was one hundred and six dollars and fifty-seven cents, and that the debt was due and payable on March 14, 1881. The defendant sets up what may be termed a technical defence, and alleges, among other things, that a supervisor cannot sue the township, and that the present plaintiff cannot recover, because the debt was not assignable, after it was merged in the order, and that the township order, as such, can not be sued on; and further, that the claim is barred by the statute of limitations, and that no interest can be allowed on this claim. [If the jury find from a preponderance of the evidence that the township of Snyder, on March 14, 1881, was indebted to R. K. Morey in the sum of one hundred and six dollars and fifty-seven cents; that he afterwards made a demand of the proper officers of that township for the payment of this indebtedness to him, and that payment was refused, then the plaintiff in this action, under the circumstances proved on the trial, is ■entitled to recover from the township the amount of this indebtedness, together with interest from the date of such demand.] 4 As has already been stated by the plaintiff’s counsel, the orders are not introduced as substantive evidence, on which to base a recovery, and the only material thing in their introduction is probably to establish ownership of this debt in the present equitable plaintiff, Charles Bovaird, because it seems to be undisputed that March 14, 1881, was the time when this settlement was made and a demand made, and that this suit was brought within six years from that date. The plaintiff’s counsel requested us in a point to charge you that this subsequent delivery of an order and taking up of the original one, estopped the defendant from denying that this indebtedness was adjusted. We think that is not in the case. The plaintiff’s counsel ask us to instruct you : 1. That if the township of Snyder owed this original indebtedness, and the same remains misatisfied, and payment has been unduly delayed, the plaintiff, in addition to the principal sum, would be entitled to the interest thereon from the time payment was first demanded by R. K. Morey. Answer: Affirmed.3 (Second point of plaintiff withdrawn.) The defendant’s counsel request the court to instruct the jury that under the pleadings and the evidence in this case the plaintiff cannot recover, and the verdict of the jury must be for the defendant. Answer: That point is refused.6 The plaintiff claims, by his statement, that this original indebtedness was one hundred and six dollars and fifty-seven cents, and be claims interest from March 14, 1881, to the present time, forty-five dollars and eiglity-two cents, making' the amount due him at this time one hundred and fifty-two dollars and thirty-nine cents. His counsel ask to have the orders which were offered in evidence, sent out with you; however, they do not have very much bearing on the case. Tlie jury returned a verdict in favor of the plaintiff for $152.40. Judgment was then entered upon the verdict, when the defendant took this writ and assigned as error: 1. The admission of plaintiff’s offer.1 2. The admission of plaintiff’s offer.8 3, 4. The parts of the charge embraced in [ ] 3 4 5. The answer to plaintiff’s point.5 6. The answer to defendant’s point.6
122 Pa. 449Oil City Fuel Supply Co. v. Boundy (1888)
No. 28 October Term 1888, Sup. Ct.; court below No. 123 August Term 1887, C. P. On May 19,1887, an action ill case was brought by William Boundy against the Oil City Fuel Supply Company, a corporation engaged in the transportation and supply of natural gas, to recover damages for injuries suffered by reason of negligence charged against the defendant. The plea was, not guilty.
122 Pa. 464Appeal of Cunningham (1888)
FROM THE DECREE OE THE ORPHANS’ COURT OE 'WESTMORELAND COUNTY. No. 92 October Term 1888, Sup. Ct.; court below, No. 47 February Term 1887, O. C. On February 12, 1887, William Household, executor of the will of J. Bennett Cunningham, deceased, filed his account charging himself with personal estate of the deceased to the amount of $16,372.98, and taking credit inter alia for $3,680, “ amount paid widow, consideration of quit-claim deed.” To this account, Mrs. Caroline M. Cunningham, widow of the deceased, filed exceptions, when Mr. Jacob Turney, was appointed auditor to hear and determine said exceptions. The report of Mr. Turney, as auditor, filed on November 19, 1887, found the following facts : J. B. Cunningham and Caroline Morgan were married in 1863 or 1864, and lived together for about two years thereafter, when Mrs. Cunningham voluntarily left her husband’s home and never after lived with him. On March 7,1886, Mr. Cunningham died, having left a will dated March 5, 1886, which ignored Mrs. Cunningham in all of its provisions. The will was admitted to probate on March 8, 1886, and the same day letters testamentary issued to William Household, the executor named in the will. The said will had been written by Mr. E. F. Houseman, and when it was written the scrivener was directed by the testator “ to tell the executor to go and settle with that woman as soon as possible, and for me to go along.” On March 10,1886, Mr. Household, the executor, went with Mr. Houseman to the residence of Mrs. Cunningham at Pennsville, where a meeting with her was had which resulted in her execution, in consideration of $3,680, of a quit-claim deed to William Houseman, the executor, “for the benefit of the other heirs of said decedent,” releasing all lier interest and claim in the real and personal estate of said deceased. This deed was on the same day duly acknowledged and filed for record. Of the consideration of said deed, the executor paid $30 in cash, and gave to Mrs. Cunningham his own note with Mr. Houseman, as surety, for $3,650. A few days after, the executor paid Mrs. Cunningham $50 additional as a credit on the note. On April 2,1886, the inventory of the personal estate was filed, amounting to $15,415.80. The appraisement of the real estate for the collateral inheritance tax, was filed about the same time, fixing the value of it at $10,320. The debts etc., were estimated at $2,582.08, reducing the personal estate by credits not including that taken for the payment to the widow, to $14,356.25. On June 2, 1886, Mrs. Cunningham, through her attorneys, Messrs. Moorhead and Head, by a written notice tendered the note given her by the executor for $3,650, with the sum paid her in money, and demanded a return to her of her quit-claim deed, which was refused. Upon the foregoing facts, substantially as found by the auditor, his conclusions of law were as follows: ***** * * * The real and controlling question in this case, is the effect that is proper to be given to the quit-claim deed executed and delivered by Caroline Cunningham to William Household, executor, “ for the benefit of the other heirs,” on the 10th of March, 1886. By the terms of this deed, for the consideration of $3,680, the widow releases the estate of her husband of all dower and right of dower iu the real estate, and also fully releases any claim or right to any part of the personal estate, and agrees that the executor shall hold the real and personal estate subject to disposition and distribution in accordance with the directions contained in' her husband’s will. This paper is formally executed under seal and acknowledged, and same day delivered and recorded, and hereto annexed. In the absence of anything to impeach it, on the face of the paper, it would be conclusive as to the widow’s right to any further portion of her husband’s estate, as it contains a full and complete surrender, for a valuable consideration, in specific terms, of her entire interest in the estate. But she seeks to repudiate and avoid its effect on the grounds of fraud and inadequate • consideration; that she was not fully apprised of the value, nature and extent of her interest and rights in regard to her husband’s estate, and that she was improperly induced to execute the release. In this connection, and to correctly determine how far these charges have been sustained, it will be necessary to review the facts and circumstances that transpired in connection with the execution of the paper complained of. On March 10, 1886, Mr. Household, the executor, in company‘with E. F. Houseman, went to the widow’s house in Pennsville, Fayette county, Pa., when the executor informed her of the object of their visit, which he said was for the purpose of effecting a settlement with her for her interest in her husband’s estate. She agreed to ’ settle for a consideration. Mr. Houseman made known to her the material parts of her husband’s will, and notified her that she got nothing by the will; that her name was not mentioned. He told her that she was entitled to one half of the personal property, and that it was his opinion that she had a life estate in one half of the real estate. The value of the estate was discussed; she valued it at $50,000; the executor said he did not think it would exceed $25,000. Houseman estimated it at from $22,000 to $25,000. Some data as to the value of the personal estate was considered, which did not include the property about the house. Household took the list, read it over to her and took the items down. Two items she did not want counted in, a bequest to J. E. Cunningham of $2,000, and a bequest of bank stock to Mary E. Hurst, and a small note of her husband’s, amounting to $1,600. Then the balance was divided, the one half being $3,680; then she said, “I will take that for my release,” and I asked her if she meant the whole estate, she said: “Yes.” Esquire Houseman then wrote the release, and he asked her if she understood the release, in case the estate was more valuable than we supposed. She said she understood that was all she was to get out of the personal and real estate both, no difference how much more valuable the estate might be. There was nothing said about how much more valuable the estate might be, no amount being mentioned. She said she knew she was not getting as much as the law would give a widow, and said she did not think she ought to have a widow’s portion, the same as if they had lived together. She said that would be enough to keep her as long as she lived, and that was all she wanted. When the release was written, Mr. Houseman says, I read it over measurably and carefully, every word of it. Mr. Household said, that was as he understood it. She said it was right; that was the bargain. The release was executed and delivered; $30 in money was paid and a note for $3,650 given her. This is a brief summary of the evidence of Household and Houseman, who corroborate each other as to what transpired when the release was given. Mrs. Cunningham, in her testimony, contradicts the testimony of Household and Houseman. She says they wanted a speedy settlement; spoke discouragingly about my prospects of getting anything; would law me.....Told them I could not compromise; did not know what the estate was worth; too soon to talk about that; had no advice or counsel; farm leased for three years; could not be sold. Asked them what the personal property was worth; Houseman answered me emphatically, $9,000. I doubted that; I thought his estate was worth more than they said. When I agreed to take the half, they commenced cutting it down till they got it to $3,680. I had to accept the $3,680. I had no information except what Household and Houseman gave me that day. Had no knowledge of my husband’s business; had been living separated fifteen or twenty years. I have no recollection of saying to Household, that if there would any other property turn up above the estimate made, that I would not claim any of it. Tf I had been properly informed of the amount of the estate I would have been satisfied with the half. What I asked for was the half, and I was treated fraudulently when I did not get the half. N o witness was called by the widow to testify as to what occurred when the release was executed, and to this extent she is uncorroborated. The release in the case is sought to be rescinded on the ground of fraud and inadequacy of price. Fraud must be established by proof “ so clear as to leave no room for hesitation or doubt. Relief in case of writings will not be granted when the evidence is loose, equivocal or contradictory; open to doubt or opposing presumptions: ” Edmond’s App., 59 Pa. 220; Lynch’s App., 97 Pa. 349. [Citing and considering upon the same subject, Campbell v. Patterson, 95 Pa. 447; Adams’ Eq., § 79; Davidson v. Little, 22 Pa. 245; Light v. Light, 21 Pa. 407 ; Rankin v. Mortimere, 7 W. 372, the auditor proceeded:] The contract in this case was fully executed, signed, sealed, delivered and recorded, and as such is persuasive evidence of its integrity. As to the amount of proof and for what causes a contract, so executed, can be successfully impeached, see Campbell v. Patterson, 95 Pa. 447; Phillips v. Meily, 106 Pa. 536; Spencer v. Colt, 89 Pa. 314; Lynch’s App., 97 Pa. 349; Edmond’s App., 59 Pa. 220; Yard v. Patton, 13 Pa. 282 and 283; Thudium v. Yost, 20 W. N. 217. It is the opinion of the auditor, based on all the facts- and circumstances of the case, that no fraud, undue advantage, or other improper means were used by the executor or others, to procure the execution of the release or quibclaim of March 10, 1886, by the widow; that the act was voluntary on her part, and should not be rescinded or disturbed, and that it was not error in accountant taking credit for the sum of f3,680, amount paid the widow, the consideration in the quit-claim deed, and the exception to the same is dismissed. To this report Mrs. Cunningham filed exceptions, which were overruled by the auditor, and filed with the report. On March 19, 1888, the court, Hunter, P. J., after argument dismissed the exceptions and confirmed the report. Thereupon the exceptant took this appeal and assigned, specifically, the dismissal of her exceptions and the confirmation of the report as error:
122 Pa. 472Appeal of Williams (1888)
EROM THE DECREE OE THE ORPHANS’ COURT OE WESTMORE LAND COUNTY. No. 188 October Term 1888, Sup. Ct.; court below, No. 38 February Term 1886, O. C. The account of J. R. McAfee, Eliz. K. Gallagher and J. L. Cook, executors of the will of Thos. F. Gallagher, deceased, was filed to No. 38 February Term 1886. Upon the debit side there was charged (inter alia) : “ To amount of real estate sold under the will, as per schedule A., $5,612.50.” Among the credits claimed was one for “amount received by George Gallagher, surviving partner of T. & G. Gallagher, from the sale of real estate under the will and by him applied to the partnership debts, $5,612.50.” To this account seven exceptions were filed “for creditors,” one of which was 4. The accountants should not be allowed credit for the item of $5,612.50, proceeds of real estáte turned over by executors to George Gallagher for reasons appearing upon the records,” etc. The account and the exceptions thereto were referred to Mr. L. W. Doty and Mr. H. B. Kuhns, as auditors. At the hearing before the auditors it appeared that Thos. F. Gallagher had died November 4, 1888, leaving a will duly admitted to probate, which provided that “my executors, hereinafter named, in connection with my brother George, may, as soon 'as practicable, either by private or public sale, as shall be deemed by them most advantageous, sell all the real estate of which the firm of T. & G. Gallagher is possessed, and make, execute and convey by good and sufficient deeds for the same, all such property as they make sale of, without being under the necessity of getting an order from court. Schedule A., referred to in the account, was a list of properties and of the purchasers to whom they were sold, the purchase money aggregating $11,225. Thos. F. and George Gallagher had been partners for many years, in New Alexandria. After the death of Thos. F., the partnership business was carried on by George Gallagher for about eighteen months, when he made an assignment for the benefit of creditors. The partnership estate was also insolvent. The individual debts of Thos. F. were of small amount in the aggregate, and were paid in full. The exceptants were creditors of the partnership, left unpaid by George Gallagher, the surviving partner, and they sought a pro rata distribution out of the balance left after the individual creditors of Thos. F. Gallagher were paid. The exceptants objected that the item of §5,612.50, for which the credit excepted to was claimed, was the share of the decedent in certain real estate, the title to which was alleged to be in Thos. F. Gallagher and George Gallagher, as tenants in common, and not as partners, and that, therefore, that fund belonged to the estate of Thos. F. Gallagher, and the credit claimed was improper. From the evidence printed it appeared, that the real estate in schedule A. had been sold by George Gallagher, the executor of Thos. F. Gallagher joining with him in the deeds to the purchasers, and that the purchase money had befen paid out by George Gallagher to the partnership creditors, with the assent of the accountants; but it did not appear how the real estate from which the fund derived was held. Although the appellants filed with their paper books copies of deeds from former owners of some of the properties embraced in schedule A., which deeds had been executed to “ Thomas F. Gallagher and George Gallagher ” as grantees therein, yet it did not appear that said deeds had been offered in evidence. The auditors reported upon the exceptions filed, seriatim, and upon that herein before quoted, as follows : 4. Schedule A. exhibits the several real estates owned by the firm of T. & G. Gallagher and they amounted to §11,225. T. F. Gallagher was the owner of the undivided one half amounting to §5,612.50, and this amount the executors charge themselves with as turned over to George Gallagher. The will of General Gallagher provides for the sale of this real estate through George Gallagher who, as the surviving partner, has applied the proceeds as appears from the testimony, to the debts. The act of 1848 cleared away all obstructions to the creditor’s access to the estate of the deceased partner, and makes it unconditionally liable for the payment of the debts. The exception is therefore overruled. To said report the objecting creditors filed certain exceptions, one of which was: 5. The finding of the auditors as contained in the 4th paragraph of the report upon the exceptions is not sustained by the evidence. All the evidence offered, was to show that this property, as to the one half thereof, belonged to T. F. Gallagher individually. The executors joined in the deeds with George Gallagher, and it does not appear that it or any of it was sold through George Gallagher, except so far as he was agent of the accountants. Nor was it in any way shown that this was firm property. Said exceptions were overruled by the auditors, and being-renewed in court upon the filing of the report, the court, Hunter, P. J., on August 24, 1888, dismissed the exceptions and confirmed the auditors’ report. Thereupon, the exceptants took this appeal and specified that the court erred: 1. In overruling the exceptions filed to the account of the executors. 2. In not sustaining the exceptions filed to the account of the executors. 3. In overruling the exceptions filed by [attorneys named] counsel for creditors, before the auditors and renewed in court. 4. In not sustaining the exceptions filed by [attorneys named] before the auditors and renewed in court. 5. In confirming the auditors’ report. 6. In not striking from the credit side of the account the item of §5,612.50, being credit claimed by the accountants in the following words and figures: “ Accountants claim credit for §5,612.50, amount received by George Gallagher, surviving partner of T. & G. Gallagher, from the sale of real estate sold under the will and by him applied to the payment of partnership debts, §5,612.50.”
122 Pa. 478Thompson v. Carmichael (1888)
ERROR TO TEE COURT OE COMMON PLEAS OE MERCER COUNTY. No. 69 October Term 1888, Sup. Ct.; court below, No. 59 March Term 1887, C. P. On February 17, 1887, a summons in ejectment was issued by A. D. Carmichael against Phoebe Thompson, to recover a lot of ground in Worth township, containing about 50 acres. The plea was, not guilty. On December 3, 1887, a case stated was agreed upon and filed showing in substance, that on April 16, 1854, John Carmichael, Sr., then the owner of the land in dispute, in consideration of $10, and of love and affection had for his daughter Phcebe Thompson, conveyed it to Aaron Carmichael, his heirs and assigns forever, in trust “for the use of said Phcebe Thompson and her husband, Elijah Thompson, for and during their natural lives and the life of the survivor of them, with the right to the said Phoebe and Elijah to occupy and improve the same; but the estate hereby granted, bargained and sold in trust as aforesaid, to be in no way or manner liable, either by attachment, execution, or any other legal process, for the sole or joint debt or debts of the said Phoebe and Elijah heretofore or hereafter to be contracted by them; and from and after the decease of the said Phoebe and Elijah, for the use of the heirs of the body of the said Phcebe Thompson, formerly Phcebe Carmichael, forever.” The said deed was duly recorded, and Phoebe Thompson and her husband went into possession of the land and held the same until January 11,1858, when by deed of general warranty they conveyed it to John Carmichael, Sr., the former grantor. This deed was in the usual form, with the addition after the description of the land of the following words: “ Being the same piece of land conveyed to the said Elijah Thompson and Phoebe, his wife, late Phoebe Carmichael, in fee tail, by deed dated 16th day of April, 1854, and it is hereby and herein intended by the said Elijah Thompson and Phoebe Thompson, late Phoebe Carmichael, hereby to debar the estate tail in possession, reversion or remainder, and to defeat the same as fully and effectually as if the same had never been created, that they, the said Elijah Thompson and Phcebe, his wife, and the heirs of her body, have and had in the said piece or parcel of land herein described and granted, or intended so to be.” John Carmichael, Sr., then toot possession under the last mentioned deed, and occupied the land as his own until his death, leaving a will, dated March 19,1861, and duly admitted to probate on January 29, 1868, in which will he devised the land to John Carmichael, Jr. John Carmichael, Jr., took possession of the land after the death of the testator and occupied it by himself and tenants until February 16, 1885, when by quit-claim deed in the ordinary form he conveyed the same to A. D. Carmichael, the plaintiff herein. Elijah Thompson, the husband of Phoebe, died on December 28, 1883; his widow Phoebe then had and still has heirs of her body living. On or about April 1, 1885, the premises being then vacant, the said Phoebe Thompson, defendant herein, went into possession of the land and was and continued to occupy it as her own when this suit was brought. To No. 73 June Term 1885, C. P., A. D. Carmichael, the grantee of John Carmichael, Jr., brought ejectment against Phoebe Thompson, for the land, and on trial thereof a verdict was had in favor of the defendant. Upon a writ of error to No. 60 October Term 1885, Sup. Ct., the judgment of the court below was affirmed, but the only question then tried and decided was, whether the legal title was in Aaron Carmichael, the trustee in the deed of April 16, 1854, or in the cestuis que trust, and it was decided to be in the trustee : unreported, except as Carmichael v. Thompson, 5 Cent. R. 500. On February 3, 1888, the court, Mehaed, P. J., filed the . following opinion and decree: There are two questions raised by the facts and submissions in this case: First, whether the plaintiff has a valid title to the land in suit by virtue of the deed dated January 11, 1858, from defendant and her husband to John Carmichael, and, second, whether he has a valid title under the statute of limitations. The first question was considered and fully discussed in the opinion delivered at No. 73 June Term 1885, which was between the same parties and for the same land. The second question is raised here for the first time. In the former case, it was held that under the deed from John Carmichael to Aaron Carmichael dated April 16, 1854, the grantee took the land in a special, active trust, and hence the deed from Phoebe and Elijah Thompson, the cestuis que trust, was inoperative. This decision was affirmed on writ of error by the Supreme Court. But the question arises again properly in this ease, and it is our duty again to consider it. The learned counsel for plaintiff asks a contrary ruling, and cites in support of his position certain authorities, the strongest in his favor being Keyser’s App., 57 Pa. 236. That was a case where a testator devised an estate in fee simple, with all the incidents of ownership in the cestuis que trust, but provided that it should not be liable for their debts. This was held to be a dry trust, and the provisions as to debts fell. In this case there is an equitable interest for life given to Phcebe Thompson and her husband. Elijah, with contingent remainder to the heirs of the body of Phoebe. .For as the heirs of the body of Phoebe could not take by inheritance the entire estate limited to Phoebe and Elijah Thompson, the rule in Shelley’s case would not apply: 1 Washb. on Real Prop., 105, et seq. *77, *78, *79. Hence this case is within the distinction recognized in Keyser’s App., 57 Pa. 241. But aside from the distinction, the facts of the case at bar are covered by the later decisions of the Supreme Court in Rife v. Geyer, 59 Pa. 393; Phila. Trust etc. Co. v. Guillon, 100 Pa. 254. To say nothing of the affirmance of the opinion rendered on these identical facts, if the deed from John Carmichael to Aaron Carmichael created an active trust, the seisin would be in the trustee: 2 Washb. Real Prop., 457, 488. The cestuis que trust would not, strictly speaking, have an estate : Pomeroy’s Equity, §§ 153, 374, but the legal title, not being affected by the statute, would remain in the trustee. Hence the deed from Phcebe and Elijah Thompson to John Carmichael, being an attempt on the part of the grantors to convey an estate which they did not have, was invalid. The deed from the Thompsons to John Carmichael was in form a general warranty deed in fee simple for the land in suit. Under it John Carmichael went into possession of the land in 1858. He and those claiming under him held it, claiming title, until April, 1885, twenty-seven years. This deed was evidently made and accepted, possession of the land taken and maintained, under a misconception of the estate of the Thompsons and their power to convey. Possession taken under these circumstances could not have been in recognition of the trust, but was certainly adverse to both trustee and cestuis que trust. It was maintained for twenty-seven years in such a way as to give title to the disseisors if there had been a trust and the cestuis que trust had been sui juris. Although a court of chancery will not apply the statute of limitations as between a trustee and cestuis que trust, it is now well settled “ that a stranger by an adverse possession as against a trustee, continued for the requisite period of time, may bar both the legal estate of the trustee and the equitable interest of the cestuis que trust: ” 3 Washb. Real Prop., 163, § 46 a, *501: Smilie v. Biffle, 2 Pa. 52; Maus v. Maus, 80 Pa. 203; Perry on Trusts, § 848; Yorks’ App., 110 Pa. 69. The plaintiff then has a good title as against the defendant by virtue of the adverse possession of himself and those under Avhom he claims, unless the fact that defendant was feme covert until December 28, 1883, preserves the estate to her. In considering this question it is to be borne in mind that there was no implied trust under the conveyance to John Carmichael made in 1858. That deed was not made by the trustee, but by the cestuis que trust, and was in effect an assertion of the latter’s right to convey and denial of the trustee’s title. It was in proper form to convey the estate, if that had been in the cestuis que trust. But its operation was prevented for the very reason that the estate, and the seisin incident to it, were in the trustee. When John Carmichael took possession of the land under this deed it was a disseisin of the trustee. He had an immediate right of entry in order to protect the land for the trust. It is true the cestuis que trust had an interest, but it was one they could work out only through the trustee. They had no remedy except to procure the trustee to bring an action upon his legal title to recover possession: 1 Perry on Trusts, § 346. But they, as well as the trustee, apparently recognizing John Carmichael’s title, neglected to disturb Ms possession until long after twenty-one years had run from the time it began. After this length of time the trustee’s right of entry was gone under the statute of March 26, 1785, 2 Sm. L. 300, and as the interest of the cestuis que trust was dependent upon the right of the trustee to recover possession, it would likewise be lost. This question is hardly open, in view of what was said in Smilie v. Biffle, 2 Pa. 52. There a defective conveyance of land was made by one of several trustees. The cestuis que trust for life was a feme covert. Possession was taken and maintained for the length of time required by the act of 1785 to give title. On suit brought, after the death of the feme covert, by a child who was a cestui que trust in remainder, the point was submitted, “ That if Jane Craig, the feme covert, died within the twenty-one years, the plaintiff could recover.” But the Supreme Court said in reply: “When the cestui que trust and trustee are both out of possession, for the time limited, the party in possession has a good bar against both. It would strike me to be an anomaly that the owner of the legal estate should be barred, and the owner of the equitable title, whether his interest be an interest in possession or by way of remainder, should, nevertheless, be entitled to enter. Equity follows the law, and courts of equity have adopted the act of limitations by analogy. If a trustee is negligent of his duty (as he may be), the cestui que trust is not without remedy. That there are exceptions in favor of infants in cases of implied trusts may be conceded. But this is not a case of that description, and there is nothing to exempt it from the operations of the rule.” This decision was recognized and affirmed in Mans v. Maus, 80 Pa. 194, 203. The ground of it takes in this case; for il' the interest of a cestuis que trust in remainder would not survive an adverse possession, maintained against the trustee for twenty-one years, neither would the interest of a cestuis que trust for life, even though she were feme covert. It follows that the defendant has lost her interest in the land in suit. The justice of this conclusion is made clear by the fact that defendant conveyed the land to defendant’s ancestor in title in 1858, for a valuable consideration, to wit: $300, presumably all it was then worth. Judgment is accordingly given in favor of plaintiff and against defendant for the land described in the writ and costs. Thereupon the defendant took this writ and assigned that the court erred in deciding that the statute of limitations gave title to the plaintiff for the land in dispute, aud in entering-judgment for the plaintiff on the case stated.
122 Pa. 486Appeal of Wingett (1888)
prom the decree op the court op common pleas op WASHINGTON COUNTY. No. 38 October Term 1888, Sup. Ct.; court below, No. 401 May Term 1886, C. P. On April 19, 1886, Silas Wingett made an assignment of all his estate for the benefit of creditors. A sale of his real estate discharged of liens, made under an order of the court, was confirmed on November 8, 1886, and on November 80th, the assignees filed their account showing a balance of $5,473.05 for distribution, composed entirely of the proceeds of real estate, which at the date of the assignment was subject to liens to an amount larger than said balance. No exceptions having been filed to said account, on February 26, 1887, an auditor was appointed to report distribution. By the report of the auditor, Mr. J. M. Dickson, filed on August 26, 1887, it appeared that the land producing the fund had been devised to Silas Wingett, the assignor, by the will, dated December 15, 1849, of his father Reuben Wingett, who died on March 29, 1850. The testator by his said will bequeathed to Jane Wingett his daughter, two legacies of $500 each, one payable when she should arrive at the age of twenty-five years, and another when Silas should arrive at the age of twenty-five years. lie also bequeathed to the Concord church $300, the interest of which was to be expended annually for missionary and benevolent purposes. His son Silas was to have possession of the farm devised to him when he became twenty-live years of age, which occurred in September, 1864, but he was to be without authority to sell the farm during the lifetime of his mother, nor under any circumstances until he should he thirty years of age. Rev. Stephen Wingett and Col. Albert Squier were appointed executors of said will, and tlio guardians of the persons and property of all the testator’s children, the will, referring to said appointment, concluding: “ T give them full power to take charge of all my real and personal property and manage the same according to their discretion for the best interest of the heirs and the family, to take charge of the farm and lease or rent the same or have it worked as they shall deem best, and have a general supervision of the whole estate until the above legacies shall have been paid, and the whole estate settled according to the above directions. In witness whereof,” etc. The said legacies to Jane Wingett and to the Concord church, were presented before the auditor by Rev. Stephen Wingett, surviving executor, for allowance and payment, as charged, upon the land under said will. Under objection on the part of H. K. Bell, and others, judgment creditors, to the position that the legacies were thus charged, evidence was adduced, showing that they had never been paid. The testimony being closed, it was claimed in the argument before the auditor, on the part of the objecting creditors, that a recovery of the legacies out of the fund, even if they were unpaid, was barred by § 7, act of April 27, 1855, P. L. 369, which provides as follows: “ In all cases where no payment, claim or demand shall have been made on account of, or for any ground-rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period, by the owner of the premises, subject to such ground-rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground-rent, annuity or charge, shall thereafter be irrecoverable.” The auditor, upon the question of the right of the objecting creditors to plead the bar of this statute at the argument, when they had not pleaded it when the claim was presented for proof, cited Heath v. Page, 48 Pa. 142; Yohe v. Robertson, 2 Wh. 155, and Franklin F. Ins. Co. v. Findlay, 6 Wh. 497, and ruled that it was too late to plead the statute against the legacies; and, finding that they had not been paid, he decided, chiefly upon the provisions of the will hereinbefore quoted, that the legacies were vested at the death of the testator, charged upon the land by the will, and were entitled to be paid out of the fund, with priority, and with interest to November 8, 1886, the date of the confirmation of the sale. To this report of the auditor, H. K. Bell and other judgment lien creditors excepted, inter alia, that the auditor erred in not finding as matter of law: 4. That the claim for the payment of the legacies in Reuben Wingett’s will was barred by § 7, act of April 27, 1855. Said exceptions having been overruled by the auditor and filed with the report, the court, Stowe, P. J., C. P. No 1, 5th judicial district, holding special term, on December 7, 1887, filed the following opinion and decree: While I am not at all convinced that the auditor erred in his finding that the legacies in question were vested, that they were charged on the land and that they had never been paid, and therefore must overrule all the exceptions to such findings, I think the auditor erred in his opinion in regard to the effect of the act o£ April 27, 1855, upon the claims of the several legatees. It is undoubtedly true, as stated by him, that statutes of limitation are presumed to be waived, if not specially pleaded or due notice given that they will be relied upon for a defence. But this rule cannot be applied to this case, because the statute referred to cannot in any proper sense be called a statute of limitations. It is a mere statutory rule of evidence analogous to the presumption of payment arising from 20 years delay in pursuing a claim under seal. It never was necessary to plead specially that the presumption was relied on. Under the plea of payment, alone, the defence was available and, without more, upon presentation of such a claim on a trial, if there was no evidence offered to show non-payment, the court would direct a verdict for defendant. This distinction between statutory bars, and the legal presumption arising from delay, is clearly indicated in Foulk v. Brown, 2 W. 215, where it is said: “The court will not encourage the laches or indolence of parties, but will presume after a great length of time, some composition or release to have been made. The length of time does not operate as a positive bar, but as furnishing evidence that the demand has been satisfied. But it is evidence from which, when not rebutted, the jury is bound to draw a conclusion. . . . Within twenty years the onus of proving payment lies on defendant. After that time it devolves on the plaintiff to show the contrary by such facts and circumstances as will satisfy the jury that there are other .reasons for the delay in the prosecution of the claim, than the alleged payment. Slighter circumstances are sufficient to repel the presumption, than are required to take the case out of the statute of limitations.” See, also, Peters’s App., 106 Pa. 343. How, it seems to me, that the act of 1855 merely declares ■what facts shall, when duly proved, rebut the presumption of a release or extinguishment of a charge on real estate after 21 years from its maturity. Mere non-payment will not be sufficient. There must be some payment, or some claim or demand made on account of or for such charge by the party entitled to receive it, or some declaration or acknowledgment of its existence, made by the party of whom it is demandable, before it can be recovered. The onus of proof is upon the claimant. To enable him to recover he must first make out his case,, relieving him from the effect of the statute, and failing this,, he is not entitled to recover the claim. The exceptions to the auditor’s report to the effect that the claim for the payment of the legacies in Reuben Wingett’s will is barred by the act of April 27, 1855, § 7, are sustained. All other exceptions thereto are now overruled. The report was then referred back to the auditor to state a distribution in accordance with the foregoing opinion. An amended schedule of distribution having been filed and confirmed, the claimant took this appeal and specified that the court erred, inter alia, in holding that the act of April 27,, 1855, was a bar to the payment out of the fund of the legacies bequeathed in the will of Reuben Wingett, deceased.
122 Pa. 494Sidney Sch. Furniture Co. v. Warsaw Sch. District (1888)
ERROR TO THE COURT OF COMMON PLEAS OF JEFFERSON COUNTY. No. 7 October Term 1888, Sup. Ct.: court below, No. 403 September Term 1885, C. P. On September 1, 1885, The Sidney School Furniture Co., of Sidney, Ohio, brought assumpsit against The School District of Warsaw township, to recover upon a contract for the sale and delivery of school furniture. The pleas filed were, non assumpsit, payment with leave, etc. At the trial on February 9, 1886, there was a verdict for the defendant, reversed, however, with a venire de novo, upon a writ of error to No. 135 October Term, 1886; Sidney Sch. Furn. Co. v. Warsaw Scb. D., 5 Cent. R. 306. At a second trial on May 17, 1887, the plaintiff proved a contract dated July 25, 1885, between the plaintiff and the defendant, by which the plaintiff agreed to deliver “ on cars at factory, in knock down form,” certain described school furniture, “ to he shipped on or about August 10, 1885,” to Mr. S. W. Temple, at Brockwayville station, on Rochester & Clear-field Railroad, for $985.81, to be paid for in school orders or bonds payable at different dates with interest. The contract was executed on the part of the defendant district by G. H. Hilliard, president, and attested by S. W. Temple, secretary. A special notice was attached, that “ all bills must be settled with us: no agent is allowed to receive payment nor settle any bills unless he can show written authority from us: ” signed by the defendant company. The plaintiff followed with proof of the minutes of the school board, authorizing said contract; that the furniture ordered was shipped as required thereby, and that a demand was made for settlement and payment to S. W. Temple by H. M. Sweet, the agent by whom the contract was negotiated. Mr. Sweet testified that when he made demand to Mr. Temple, the latter admitted that the furniture had been delivered at Brockwayville, but refused to turn over the orders or bonds, and, exhibiting the minutes, told witness that by the action of the board the contract had been rescinded, and they would not receive the goods. The testimony is more fully stated in the Opinion of the Court. When the plaintiff rested, the defendant moved that a compulsory nonsuit he ordered; “ The plaintiff has simply shown a conversation with Mr. Temple, and demand of Mr. Temple. By the terms of the contract, the plaintiff could not maintain this suit, at the time it was brought, unless it showed more. Mr. Temple is not tire defendant.” The motion was allowed. The plaintiff then moved that the judgment of nonsuit be set aside, and on September 12,1887, the court, Wilson, P. J., filed an opinion which, after quoting the contract put in evidence, proceeded: This was supplemented by the testimony of John Loughlin, proprietor of tire plaintiff company, who, inter alia, testified that the furniture described in this contract was shipped about July 6,1885, and by that of the station agent of the Pittsburgh, Buffalo & Rochester railroad, who testified that the wood part of the seats was received at Brockwayville station on August 16, 1885, and that the irons did not come on that road. A portion of the minutes of the school board of defendant district was received in evidence, showing the proceedings of the board at a meeting held on July 25th, at which Mr. H. M. Sweet, the plaintiff’s agent, was present; and it was proved that on August 26th the agent called on S. W. Temple, secretary of the school board, and demanded a settlement and payment for the goods alleged to have been delivered pursuant to contract. Upon this testimony the plaintiff relied for a recovery of his claim in suit. The defendant contended there was not sufficient proof to be submitted by the court to the jury, because: (1) The undisputed fact was that the furniture was shipped on or about July 6, 1885, which was before any contract was made. (2) That only the wood part of the furniture arrived, and that none of it was removed by defendant. (8) That no demand was made on the school board for settlement. (4) That the agent, Sweet, did not show any authority to receive payment or settle bills as required by the special notice in the contract. The question is, therefore, distinctly raised and must be decided upon an affirmative or negative interpretation of the reasons assigned in the motion before the court, and involves the doctrine of the “scintilla of evidence.” $ $ $ This brings us to the question for determination, whether the judgment of nonsuit entered in this case, shall be sustained or set aside. Was the evidence in this case sufficient to justify the jury, if submitted to them, in finding for the plaintiff, or would the court have set aside their verdict ? In considering the proof submitted, it may be well to observe that the omission of the plaintiff to show that the furniture was shipped on or about August 10, 1885, and that it was all shipped in proper order, with all the essential appliances belonging thereto and necessary for the purpose for which it was to be used, and ready to be received, and that demand for settlement was made on the defendant at the regular meeting, the time of which, to wit, August 29, 1885, was known to the plaintiff’s agent who sold the goods, and that he showed the written authority to make the settlement referred to in the conversation with Mr. S. W. Temple, was important. It was within the power of the plaintiff to offer such evidence; and if the school furniture was shipped by plaintiff and received by defendant, or refused, the proper tiring was to show demand and refusal by the action of the school board, by inspection of the record of the school minutes which was in court during the trial. Why these facts were not presented has not been explained. Their omission certainly did not escape the vigilance and action of the defendant’s counsel, and they wore absolutely necessary to sustain the issue on the part of the plaintiff. We are loth to deprive the plaintiff of what it alleges are its legal rights, but we are to deal with the question involved in the way and manner presented, and under the legal rights of the defendant and its objections made on the trial, and tested by the legal doctrines hereinbefore expressed. We are, therefore, of the opinion that plaintiff gave no snch evidence as in law was sufficient to sustain its action, and the rule granted is discharged, with costs, and final judgment entered for defendant. The plaintiff then took this writ and assigned as error the refusal of the court to set aside the compulsory judgment of nonsuit entered.
122 Pa. 502Snowden v. Kittanning Ins. (1888)
ERROR TO THE COURT OE COMMON PLEAS OE ARMSTRONG COUNTV. No. 13 October Term 1888, Sup. Ct.; court below, No. 385 June Term 1886, C. P. On May 22, 1886, an action of debt was brought by David Snowden against The Kittanning Insurance Company to recover upon a policy of fire insurance dated August 29, 1884, in #1,000, #400 of which was upon a two-story frame building. The pleas did not appear upon the paper books. At the trial on June 17, 1887, the policy read in evidence contained a provision that “this company shall not be liable for a greater sum than two thirds the actual cash value of the buildings burned; ” another provision that persons sustaining loss or damage by fire should forthwith give notice thereof in writing to the secretary of the company, and, as soon after as possible, should deliver proofs of loss of a specified character, with plans and specifications, if required, and should exhibit to the company and permit to be examined, handled and appraised, any property damaged on which any loss was claimed; “and until such proofs and declarations are produced, and such appraisals and examinations permitted by the claimant, and until such plans and specifications (if required) are furnished, the proofs shall not be considered complete, nor the loss due until ninety days thereafter; ” and a further provision : “ Payment of losses shall be made ninety days after complete proofs and adjustments thereof, at the office of the company.” A fire occurred on October 23, 1885, which entirely consumed the dwelling-house insured; and on October 26th, notice was given to the company as follows: October 26th, 1885, The Kittanning Ins. Co., Kittanning Pa. I thought I would notify you that my house caught fire somehow Friday, the 23d of October, and burned. Total loss: in Wayne township, Armstrong Co., Pa. David Snowden, Bellknap, Pa. About the middle of November following, a representative of the company visited the ruins and claimed that the building had been insured for more than it was worth, but proposed that the plaintiff would select a carpenter and the company one, and the company would pay whatever they would fix upon as the loss. The plaintiff did not agree to this at the time, but subsequently he met the superintendent of the company at its office, when the proposition was again made and then accepted. The plaintiff testified: “ In that agreement with Mr. Crawford and Mr. Brown, the money was to be paid quick after the appraisers found the value; right away they were to pay the money as quick as the value was made.” This testimony Avas not contradicted by the witnesses called for the company. On January 22, 1886, the company and the plaintiff signed an agreement appointing F. M. King and E. Morrow, with a third person to be appointed by them, if necessary, Avho should under oath “appraise at its actual cash value the damage claimed to have been caused by said fire to the property insured,” etc. These appraisers were sworn, and on February 18, 1886, made a report that “ after having taken into consideration the age, condition and location of the premises, previous to the fire, and making proper deductions for the Avails, materials and portions of the building saved, we have appraised the damage to be $800.” On March 8, 1886, no payment having been made by the company, formal proofs of loss were made out by the plaintiff and served, but on April 5, 1886, these proofs were withdraAvn from the company’s office. The court, Neale, P. J., charged the jury and answered the points presented as follows: I feel constrained to shorten this case. I readily perceive that this plaintiff had what occurred to the court to be a valid claim against this insurance company; but there seems to have been in the policy of insurance that was issued by this Kittanning Ins. Co., a provision which we hold is binding in this ease. It is this : That the insurance company shall have ninety days after complete proof or adjustment of loss has been made, within which to pay the amount that may be adjusted, the amount that they may, after examination of the proofs of loss, etc., determine is due to the assured. Noav then, it is possible that the original proof of loss, if it stated the loss, or the original notification as giAren to the Kittanning Ins. Co., if it stated the loss, might be sufficient upon Avhich to base a recovery as claimed by the plaintiff’s counsel. [But there may be Waivers by both parties, and the evidence in this case clearly ■shows that the plaintiff did not stand upon that original notification of his loss.] 6 Subsequent to that, they had an adjustment of the value made by appraisers mutually chosen. That appraisement was made on February 18, 1886. It was made upon agreement, or under an agreement of submission, for the specific purpose, to two appraisers, and that submission was to the effect that those appraisers should estimate the actual damage to the property of David Snowden. They estimated the actual damage to the property of David Snowden at $300, and so made their return on February 18, 1886, to the insurance company. After that, the plaintiff in the case proceeds to perform another duty that was incumbent upon him, under the provisions of this policy, and actually makes out and presents to the insurance company, what are technically called his proofs of loss, in which he claims that the actual amount of loss to him under this policy, is $300. And there comes the dispute as to that, at least it is apparent from the evidence, that the insurance company did not accept that amount as the actual amount due from them, and the authorized agent of the plaintiff, then, Without any reason for the act, withdraws and takes away those proofs of loss after having actually submitted them to the company. [We say to you that those proofs of loss submitted to the company were a part of the agreement on the part of this plaintiff before he could recover anything from this insurance company, and after having submitted those proofs •of lossj it was his duty to wait the term of ninety days before he brought suit.]4 He failed to do so, and brought his suit before the time that he had agreed in accepting this policy of insurance, had expired, and within which the company are to adjust the loss. This suit was actually brought within that time, and we must hold with the view we take of it [if there was anything on the part of the insurance company waiving the filing of proofs of loss, the plaintiff did not take advantage of that waiver],5 but stood upon the agreement of his policy and actually filed and submitted to them his proofs of loss, which was done on March 8th, and then brought his suit within the time the company was allowed, by virtue of their policy, to make an adjustment and payment, and having done so we have to say to you, that we believe this suit is prematurely brought, and under all the evidence the plaintiff cannot recover. It may be entirely contrary to the views of the jury, as to the merits of the case, as it might also be to the court, but however that may be, the jury must in a matter of this kind, follow the law as the court may declare it. The instructions of the court are that the plaintiff cannot recover in the action as now brought. The defendant respectfully asks the court to charge the jury as follows: ■ 1. That under all the evidence the plaintiff is not entitled to recover. Answer: Affirmed.1 2. That even if plaintiff is entitled to recover in this action he cannot recover more than two thirds of the actual cash value of the property burned, which, under the submission and appraisement in this case, is the sum of |200 with interest, from June 7, 1886. Answer: Affirmed.8 3. That in order to comply with the conditions of said policy in suit, the plaintiff must have delivered to the defendant company proofs of loss at least ninety days before bringing suit. The delivery of such proofs of loss on March 8, 1886, and the subsequent withdrawal of them on April 5, 1886, before time was allowed the defendants to examine and approve or disapprove of them, is not a compliance with the terms and conditions of said policy as found in the 20th paragraph in the policy in suit. Answer: This point is refused as stated. 5. The proofs of loss having been furnished on March 8, 1886, the defendant was not liable to pay the plaintiff, and did not owe him anything until the expiration of, ninety days after the date of said furnishing of proofs of loss under the conditions of the policy in suit. The plaintiff having brought his action on May 22,1886, it was premature and cannot be maintained, and the verdict must be for the defendant. Answer: Affirmed.3 The jury returned a verdict in favor of the defendant. Judgment having been entered, the plaintiff took this writ and assigned for error: 1-3. The answers to defendant’s points.110 3 4-6. The parts of the charge embraced in [] 4 40 6
122 Pa. 511Allegh. V. R. v. Pittsb. Junction R. (1886)
FBOM THE DECREE OE THE COURT OF COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY, IN EQUITY. No. 220 October Term 1885, Sup. Ot.; court below, No. 88, September Term 1883, C. P. No. 1 in Equity. On June 19,1883, The Allegheny Valley Railroad Company filed a bill in equity against the Pittsburgh Junction Railroad Company. A preliminary injunction prayed for having been awarded, and answer and replication filed, Mr. Samuel 01 Schoyer was appointed examiner and master, whose report filed on October 3, 1885, showed the controversy between the parties to be as follows: The plaintiff company claims to be a railroad corporation created and existing under the laws of the commonwealth of Pennsylvania; that it has owned and operated a line of railroad for thirty years, extending from the city of Pittsburgh, in this county, to Oil City in the county of Venango, and by-various connections to Buffalo, in the state of New York. It, claims to own certain property in the city of Pittsburgh by purchase from the United States government, bounded on the-south by the Allegheny Arsenal property, and on the north by the Allegheny river, and extending from Thirty-ninth to Fortieth streets. It also claims to own, in fee simple, certain other property in the city of Pittsburgh, extending from Forty-third to Forty-seventh streets, and from an unnamed street on the south, to low-water mark on the Allegheny river on the. north, most of which it claims to have acquired some thirty years ago for the purpose of a yard, and all of which it claims to have had in eonstazit daily use in connection with the operation of its railroad. It alleges that the defendant company, on June 9, 1883, entered upon the above mentioned property with force and violence, and with a force of men proceeded to dig thereon and lay ties and rails, and tear up one track that had been used by plaintiff for at least fourteen years; this without right on the part of the defendant company. It further claims that the entry upon the plaintiff’s property, between Forty-third and Forty-seventh streets, was in plain violation of the authority of this court, as the right of the said defendant company to interfere with said property was pending before a master of this court, upon a bill filed by said defendant company, against the plaintiff company, at No. 250 March Term 1882. It also alleges that if the defendant company be permitted to continue its entry on the plaintiff’s said property, it will result in irreparable damage to the plaintiff; that it will seriously interfere with and cripple the operation of its road and the transportation of freight and passengers thereon, will undermine and ruin its road-bed and tracks, now in use, and render it unable to perform the duties by law imposed upon it towards the public. It denies that the defendant company has. any authority in law, either under its charter or under legislation, state or municipal, to enter upon, take or appropriate said property, which has already been devoted to public use; that it has any title to said property, or that there is any necessity for the defendant company to so construct a railroad as to interfere with its property rights. The plaintiff further denies that said defendant company has complied with the requirements of §§ 4 and 5 of the act approved April 4,1868, P. L. 62, so as to authorize it to carry into effect the object named in the articles of association, and that it is not entitled in law to exercise the rights of a railroad company, and prays: 1. That now, by preliminary injunction, to be made final hereafter, the said defendant company, its officers, agents, employees and servants, be restrained and enjoined from trespassing or entering upon, or in any wise interfering with the said properties hereinbefore described, or any part thereof, and from digging tliereon or laying down ties and rails thereon, or from exercising any rights of ownership thereover. 2. That it may be decreed that said defendant company has no right in law to enter upon and appropriate, or in any wise interfere with the said described property, or any part thereof, but that the title thereto and the exclusive right of occupancy thereof, as a whole, is in the plaintiff company. 3. Other and further relief. Upon this bill, on Jpne 22, 1883, the court granted the preliminary injunction prayed for, restraining the acts complained of in the bill. The defendant claims to be a corporation duly formed by the consolidation of the Pittsburgh Local Railroad Company and the Pittsburgh Junction Railroad Company, both formed under and by virtue of the provisions of the general act of assembly, approved April 4, 1868, P. L. 62, and its several supplements. The former was incorporated on September 20, 1880, and the latter August 6,1881. That the articles of consolidation and merger were filed in the office of the secretary of the commonwealth of Pennsylvania, on December 29,1881 ; that the termini of the Pittsburgh Local Railroad Company between which it was authorized to locate, construct and operate a railroad for public use, were from a point at or near the foot of Grant street, in the city of Pittsburgh, to a point at ranear the foot of Fifteenth street in said city; that the termini of the Pittsburgh Junction Railroad Company between which it was authorized to locate, construct and operate a railroad for public use, were from Bennett’s Station, on the Pittsburgh & Western Railroad, to Laughlin Station on the Pittsburgh & Connellsville Railroad, in the Fourteenth ward, of the city of Pittsburgh; that in 1881, the Pittsburgh Local Railroad Company resolved and pledged itself to construct a branch from its main line at or near Fifteenth street, in the city of Pittsburgh, to Negley’s run, in the Nineteenth Avard of said city, and duly located, survejmd, plotted, accepted, and adopted said branch line, and thereby secured the right and legally bound itself to construct said line; that the Pittsburgh Junction Railroad Company resolved and pledged itself on October 3, 1881, to construct a branch railroad from its main line at or near Thirty-sixth street, in said city, along the bank of the Allegheny river to Negley’s run aforesaid, and from Thirty-sixth street along said river to a point at or near Eleventh street in said city; that said Junction Railroad Company surveyed, located, fixed, marked and determined a route for said branch along the left bank of the Allegheny river near high-water line, between the points aforesaid, which location was approved of and adopted by said company, on October 14, 1881, whereby said company secured the right and legally bound itself to construct and operate for public use the said branch railroad; that the councils of the city of Pittsburgh by an ordinance approved by the mayor of saitl city dated November 30, 1881, authorized and empowered the said Junction Railroad Company to enter upon and locate a railroad of standard gauge on the above described location, across, upon and along all the public streets and highways intersecting or interfering with said described route, a plan of which is on file in the city engineer’s office; by reason whereof the defendant insists it has the lawful right, power and authority, and is legally bound to construct and maintain said road. • • The defendant avers that the property of complainant between Thirty-ninth and Fortieth streets, extends in width only from the arsenal property on the south to low-water mark on the main shore of the old inner channel of the Allegheny river, lying between said shore and Wainwright’s Island, as fixed by the act of assembly of April 15, 1858; and that the defendant has the lawful right and title to the property between Thirty-ninth and Fortieth streets from the present water line of the Allegheny river, up to low-water line above mentioned, and charges the complainant with using and occupying the portion of the property of the defendant lying outside of low-water line, and denies any agreement between the officers of the plaintiff and defendant company in reference thereto. The defendant denies that it entered on the plaintiff’s property between Thirty-ninth and Fortieth streets. The defendant also denies that the property of complainant between Forty-third and Forty-seventh streets extends to the Allegheny river, but it avers that it extends on the north side thereof only to the south line of Water street, a public highway extending along the bank of said river between said streets dedicated to and actually used by the public for a long time; and further denies that all the said property is used by the plaintiff in connection with the maintenance and operation of its railway, or that all of it is indispensable to such use. The defendant admits that it commenced the construction of a branch on the property between Forty-third and Forty-seventh streets, but denies that the work done, or which it intends doing, is on complainant’s property, or that it will irreparably damage the complainant, or the construction of any of its necessary improvements. The defendant also denies that such" action on its part is any violation of the authority of this court, or that there is any question before the court as to its right to occupy the land between said streets not the property of the complainant. The defendant further denies that the construction of its road will result in the damages claimed by the plaintiff to its road-bed, or cripple the operation of its road, and prays: 1. That it may be ordered, adjudged and decreed, that it has the lawful right, power and authority to take and appropriate the property mentioned in complainant’s bill for the location and construction of its highway aforesaid upon the route described, and 2. That it be dismissed, etc. The questions arising under these claims and bearing upon which a vast amount of testimony has been taken are briefly : 1. The corporate rights of the parties. 2. The extent of the property rights of the complainant, under the purchase from the United States government. 3. The extent of the property rights of the plaintiff company between Forty-third and Forty-seventh streets. 4. The location and time of location of defendant company’s line, the condition of the ground and improvements thereon between Forty-third and Forty-seventh streets at the time of location. 5. The time of construction of plaintiff’s yard as it is at present; its extent, its use and necessity for the plaintiff’s present and future business. The master then discussed the testimony, and the questions. of law arising, and, citing 1 Rorer on Railroads, 295; Penn. R. Co.’s App., 93 Pa. 151; Cake v. Railroad Co., 87 Pa. 307; Housatonic R. Co. v. L. & H. R. Co., 118 Mass. 391; Boston & M. R. Co. v. Lowell & L. R. Co., 124 Mass. 369; Lake Shore & M. S. Ry. v. N. Y. C. & St. L. Ry. Co., 8 Fed. R. 858; St. Paul Depot Co. v. St. Paul, 30 Minn. 359; Pet. of C. & P. R. Co., 2 Pittsb. 351; Commonwealth v. E. & N. E. R. Co., 27 Pa. 354; C. & P. R. Co. v. Speer, 56 Pa. 333; Packer v. Sunb & E. R. Co., 19 Pa. 211; Springfield v. Com. R. Ry., 4 Cush. 63; Boston Water Power Co. v. W. & B. R. Co., 23 Pick. 360; Turnpike v. Union Ry. Co., 35 Md. 230: B. & O. R. Co. v. P. W. & K. R. Co., 10 Am. & E. R. C. 443 ; Rochester Water Com’rs, 66 N. Y. 418; Buffalo City, 68 N. Y. 167; East St. L. Conn. Ry. Co. v. East St. L. U. R. Co., 17 Am. & E. R. C. 163, proceeded: After carefully considering all the testimony in the case, as well as all the questions of law arising, my conclusions are as follows: 1. That the plaintiff is a railroad corporation, and has owned and operated a line of railway from Pittsburgh, in the county of Allegheny, to Oil City, in the county of Venango, for many years; that the plaintiff owned the right-of-way between Thirty-ninth and Fortieth streets, on the east and west, and from the Arsenal wall on the south, to low-water mark on the Allegheny river, on the north, and it also owned property in fee simple bounded by Forty-third and Forty-fourth streets on the east and west, and its railroad on The south, and Water street on the north. 2. That Water street was dedicated as a public street by Richard L. Ewalt, in 1844, and was the northern call in the deed to plaintiff company, that from Forty-fourth street up to Forty-seventh street the plaintiff owns all of the property lying between the said streets, bounded by the right-of-way on the south and low-water mark on the north. 3. That in October, 1881, the plaintiff had erected partly on Water street, near Forty-fourth, an ice house, and a track running in front of the ice house towards Forty-third street; partly on said Water street, a steam pump and a round-house in process of erection, and a track between the ice house and the river. There was also some filling done between the round-house and the river, and in front of the ice house. In 1883 the plaintiff had, in addition to the buildings mentioned above, erected a coal chute at a cost of $4,687.60, and extended the filling along the river nearly the whole front of their property out to low-water mark, and had built a crib to sustain the same at a cost of $2,804.21. Also a coach and repair yard on this filling between the coal chute and the ice house. The ice house and the coal chute and the coach and repair yards are necessary and useful. 4. Defendant is a railroad corporation duly organized under the act of 1868, and was authorized and empowered to build a railroad from Laughlin station on the Pittsburgh & Connellsville Road in the Fourteenth ward of the city of Pittsburgh, to Bennett’s station, on the Pittsburgh & Western Road from the city of Allegheny, which said line is constructed and in operation. 5. That on October 3,1881, the defendant company resolved and agreed to construct a branch railroad from its main line at or near Thirty-sixth street, in the city of Pittsburgh, along the bank of the Allegheny river to a point at or near the mouth of Negley’s run aforesaid, and also to construct a like branch from the point aforesaid along the Allegheny river to a point at or near Eleventh street in said city, which branch road has been partly constructed and is in operation. 6. That on October 18,1881, the defendant company located the route of said branch road from Thirty-sixth street eastwardly to Negley’s run, which said branch has been completed to. Forty-third street; that the company located the said line between Forty-third and Forty-seventh streets along the river front of plaintiff’s property partly on Water street, dedicated in the deed of Richard L. Ewalt in the year 1844, and thence across, along and over the property of plaintiff to Forty-seventh street. That at the time of said location there were no improvements of plaintiff on the said location, or interfered with by it, excepting the tract marked O on plaintiff’s plan A, extending in front of the ice house and between the ice house and Forty-third street. 7. That the coal chute erected by plaintiff, as finished in 1883, is greatly in excess of their present or any probable future necessity, and might be reduced on the river front one third. That the coach and repair yards are greater than the present necessities require, but not greater than they may require in the future. 8. That defendant company’s line could be built on the location as proposed in defendant’s exhibit AA, and marked thereon “Proposed new location of the Pittsburgh Junction Railroad Company,” without any interference to the plaintiff in its franchises or in the practical working or operation of its railroad, and said location will require the removal of but nine feet of plaintiff’s coal chute and a slight change in the position of the tracks of plaintiff’s coach and repair yards, by moving them closer to the engine house, which would not lessen their capacity. That the line located by the defendant company in October, 1881, and filed with their bond at No. 21 September Term, 1883, would, by the improvements subsequently erected by plaintiff, 'necessitate a grade crossing at the coach and repair yard as well as the removal of a portion of the coal chute. 9. That the trackage and siding facilities of plaintiff company already constructed are ample for their present business, and those proposed to be constructed would be ample for their necessity for years to come. 10. 'That the object of the construction of the defendant company is to give the extensive manufactories on the proposed line a competing line of railroad, and also to connect them with the Baltimore & Ohio, Pittsburgh & Lake Erie, and other railroads in the city of Pittsburgh, thereby avoiding the necessity of transferring to said roads by team. That there is no other reasonably practicable route on the said line on which defendant’s road could, be built to its terminal point, Negley’s run. 11. That defendant company commenced the actual construction of its line on June 9, 1883, and laid a track between Thirty-ninth and Fortieth streets, alongside of plaintiff’s right-of-way ; that said track is outside of plaintiff’s property line. That defendant also laid a track a short distance from Forty-third street, at the same time crossing track O of plaintiff on Water street, running in front of the ice house and between the ice house and Forty-third street. 12. 'That defendant company can construct its said branch railroad upon the line as located by it in October, 1881, and covered by the bond at No. 24 September Term 1888, with a right-of-way not exceeding 30 feet in width between Forty-third and Forty-seventh streets, in the manner shown upon defendant’s exhibit II, in evidence, without seriously impairing or interfering with the proper and reasonable exercise of any of the franchises of plaintiff company. And further, that such location would necessitate a grade crossing to reach the plaintiff’s property between the said line of defendant company and the river, and also at the coach and repair yards of the plaintiff, constructed since the location was made, which grade crossing, under the act of June 19,1871, P. L. 1361, should, if practicable, be avoided. The master then recommended a decree that the defendant company had the lawful right, power and authority to take and appropriate a right-of-way for its branch railroad 24 feet wide, across the property of the plaintiff company, between Forty-third street and Forty-seventh street in the Seventeenth ward; that said right-of-way should be located of the said width between the points aforesaid, upon the line and in the manner proposed and shown upon the plan of said defendant marked exhibit AA; that previous to entry the defendant should file its bond with two sufficient sureties in #20,000, conditioned for the payment of all damages, etc.; and that upon the filing of said bond and the approval thereof by the court, the preliminary injunction theretofore granted herein should be dissolved. Many exceptions filed by the plaintiff in the bill to the report, of the master were overruled by him and filed with his report. These exceptions having been argued, the court, Stowe, P. J., on October 21, 1885, filed the following opinion and decree: I am unable to appreciate the position taken by defendant’s counsel in this case in regard to the questions involved here being governed by the law relating to what are known as “ crossing cases.” It seems to me that the case is wanting in every essential element incident to such cases. There is no attempt, literally speaking, to cross the line of plaintiff’s railroad, but only a portion of the ground and tracks used by the railroad for yard purposes as distinct from the line of road itself. But more than all, the attempt is not simply to cross the yard and tracks with a common use, but absolutely to take from plaintiff a portion of their yard for the sole use of defendant. The issue is not in what mode defendant shall cross plaintiff’s property, but solely whether it can cross at all. The right of a raiiroad company to corporate rights being established or ad- . mitted, the right to cross if necessary or convenient in reaching its terminus is absolute, and the court can only ascertain the mode. But the court must inquire and ascertain whether unnecessary injury will be done by crossing in the manner proposed, and also whether a grade crossing can reasonably be avoided, and decree accordingly: P. & C. R. Co. v. S. W. P. R. Co., 77 Pa. 187. No such issue was made in this case, and nothing suggested in the decree recommended by the master determines these questions. As 1 understand the bill and answer, and the proceedings taken thereunder, the sole question for our consideration is whether the evidence shows that the defendant has a right to appropriate and take for the exclusive use of its railroad track a portion of the ground belonging to plaintiff, used by it for general railroad purposes, and claimed to be reasonably necessary for the present or future use of plaintiff for such purposes. It is argued by plaintiff that the only question which should be determined in this proceeding is as to the right of defendant to take the ground appropriated and claimed by it at the time this bill was filed, and that the court has no right to Inquire whether the defendant may not have the right to appropriate some other portion of the defendant’s yard property. As, however, the bill puts in issue the defendant’s right to take or not, the defendant, having hereafter taken the proper steps thereto, may have the legal right to appropriate any of plaintiff’s land for its use, and if it appeared from the evidence that defendant had such a right, it could be determined here by our decree. The question now arises, what do the facts in evidence show in regard to this view of the ease ? Tt appears that the plaintiff is a railroad company, duly incorporated and operating a line of road from Pittsburgh to Oil City, in the county of Venango, extending, -with various connections with other roads, to Buffalo, New York, and that it has been in operation some 30 years; that in 1853 it purchased for its use for railroad purposes all the property lying between Forty-third and Forty-seventh streets, Pittsburgh, bounded by the right of way on the south and low water on the north, and, for many years prior to the incorporation of defendant company, has used in a general way the whole of it for what is called ,a “yard,” having therein a round-house, tracks, ice house and other structures incident to ordinary railroad use : and that after the incorporation of defendant and the location of its line through this property many changes have been made in the arrangement of these structures which it appears had been contemplated to a greater or less extent before this controversy arose, but which defendant claims were unnecessary and erected for the purpose of prejudicing its claim. It is quite likely that the attempt to take a portion of plaintiff’s property did greatly expedite these improvements, but the evidence utterly fails to show that it was done for the purpose claimed by defendant. As to the present necessity for the whole of the ground now occupied by plaintiff, the evidence of course is conflicting. The defendant’s engineer thinks there is no present need for the accommodations plaintiff has provided itself with, while the testimony of the plaintiff is positively the other way, but all seem to agree that all of the appliances, with the exception of a part of the coal arrangements will be needed in the future. The defendants, however, urged that even assuming all their structures to be necessary, they could by a change of location be so arranged as to answer plaintiff’s purpose just as well for all time to come, and still leave room enough for defendant to build its tracks along the river bank as indicated by a plan proposed by its engineer. The master finds that “ it does not appear that the original location (by the company), would have interfered in any way with any of the essential franchises of plaintiff, or with the operations of its railroad, and that defendant might well have insisted upon such location.” This seems to me clearly wrong, but if correct it should have been followed by a decree to that effect. But this conclusion was not even suggested. On the contrary, the master finds that another route, suggested, by defendant’s engineer, but, so far as appears, without any authority from the board of directors, would answer defendant’s purposes, and recommends that it be decreed to take that. Without stopping to criticise the form of decree recommended, even if the defendant may have a right to take the route suggested, if it desired to do so, [I think the evidence fails to show with any degree of satisfaction that such a route could he adopted without doing the plaintiff serious injury to its future operations.] 4 A sjiecial reference to the evidence, and reasons for so concluding would be now out of the question for want of time, and perhaps be of little account when done, and 1 therefore content myself with stating my conclusions. [Upon the whole, then, I am of the opinion that the defendant has failed to show that either the so-called “ original" location or the one proposed by the master, will not take ground and destroy structures reasonably necessary for the future wants of plaintiff for proper railroad purposes.] 5 That the defendant can reach Negley’s run, the proposed terminus, without going through plaintiff’s yard, as a mere question of engineering, can admit of no doubt. That it would be extremely expensive is equally clear. [But 1 do not understand that one railroad company is to be deprived of its rights and franchise simply because another wants to build another and competing road, which otherwise will cost more than the latter can afford to pay.] 6 While competition is to be encouraged, corporate rights are to be maintained. 1 think, with judge MoKennax, that “every reasonable intendment should be made in favor of the primary rights of the complainant in such cases as this, at the points of the alleged conflict. No actual encroachment upon these rights can be sustained or allowed, and. in measuring their extent, there must be a liberal consideration for the future as well as for the present necessities of the complainant; the use of existing tracks, the construction of additional ones, the convenient storage of the freight at all seasons, and the unembarrassed transaction of its business:" L. S. & M. S. R. Co. v. N. Y. C. & St. L. R. Co., 8 Fed. R. 858. The argument that it is necessary to have this property, because without it there is no other reasonably practicable route, can have no weight in the consideration of this case. [The necessity, if any there is, is of defendant’s own making. It projected the road with its eyes open; it knew, or ought to have known, the difficulties in its way to reach the proposed terminus, and, when it located its road, that the proposed route would materially interfere with precedent rights of plaintiff.] 7 The exceptions to the master’s report are sustained so far as the same are consistent with the views herein set forth. So far as inconsistent they are overruled and it is now ordered, etc., that the preliminary injunction heretofore granted be made perpetual, and that defendant pay the costs. Thereupon the defendant company took this appeal, and assigned.as error, inter alia: 1. The decree ordering that the preliminary injunction be made perpetual. 4-7. The portions of the opinion embraced in [ ] 410 7
122 Pa. 533Sharon Railway Co. v. Sharpsville Railroad (1888)
FROM THE DECREE OF THE COURT OF COMMON PLEAS OF MERCER COUNTY, IN EQUITY. No. 124 October Term 1888, Sup. Ct.; court below, No. 3 September Term 1884, in Equity. On August 12, 1884, The Sharon Railway Company filed a bill in equity against The Sharpsville Railroad Company, The Balt. & O. Railroad Co., Walter Pierce, and others, praying upon the averments therein set forth, as follows: 1. That the said defendants may be restrained from entering upon, occupying or constructing said railroad upon any of your orator’s aforesaid lands, and any lands embraced in the right of way for your orator’s said railroad, and from cutting, occupying or in any manner interfering with the slopes of your orator’s said railroad. 2. That the defendants may be restrained from constructing a railroad through or into your orator’s yard at or near Boyce, Rawle & Co.’s furnace, or across any of your orator’s railroad •tracks or connections, and from in any manner interfering with the same; or, if that cannot be done, that the court may, by its decree, define the terms and conditions upon which said defendants may be permitted to cross. 3. Such other and further relief as to the court may seem proper and meet. Upon the filing of the bill a preliminary injunction was awarded as prayed for, and on August 21, 1884, The Sha'rpsville Railroad Co. filed an answer setting out the facts of its defence and concluding: Wherefore this defendant joins with the said complainant in asking: 1.. That the court ascertain, in accordance with the provisions of the acts of assembly for such cases made, whether or not the said crossings of the Sharon Railway by this defendant’s said branch railroad otherwise than at grade be reasonably practicable, and if it be found not reasonably practicable for this defendant’s said branch railroad to cross said Sharon Railway except at grade, that the court by its decree define the rights of this defendant in the premises, and the terms and conditions upon which this defendant may cross at grade with its said branch railroad the said several tracks of the Sharon Railway now constructed and about to be constructed as aforesaid. 2. And further that the court may by its decree protect this defendant in the exercise of its rights. 3. And further, that as to all other matters and things in the said bill alleged not relating to the said crossings at grade this defendant be hence dismissed, with its reasonable costs. On October 4, T884, issue having been joined, Mr. B. Magoffin was appointed examiner and master, who on September 10, 1887, filed a report which was in part as follows: The issue as made up involves two questions: 1. Whether the defendant company has the right, in the exercise of its corporate franchises, to locate and construct a. branch railroad through, and, by so doing, appropriate to its own use, lands acquired, owned and used by the plaintiff company as a yard for storing, assorting and distributing cars ? and 2. If it lias the right to so appropriate said land, whether it be reasonably practicable for the defendant company in passing through the plaintiff company’s yard to avoid crossing the 'tracks of the latter company at grade ? To aid the master in determining these questions, the testimony of a great many railroad men, master mechanics, civil engineers, contractors, etc., was taken, and maps and profiles offered in evidence, and the master himself visited the ground on two or three occasions. From the testimony taken, maps and documentary evidence submitted, the bill and answer, the personal inspection, the master finds and reports the following facts: 1. The Sharon Railway, plaintiff in this case, is a corporation duly organized under the laws of the state of Pennsylvania, by articles of association dated July 14,1873, and articles of merger and consolidation with the Sharpsville, Wheatland, Sharon & Greenfield R. Company, dated December 12, 1875, and by virtue of its charter and articles of consolidation was authorized to, and did actually survey, locate and construct, a railroad from the borough of Sharon northward along the old Erie canal to connect with the N. Y., P. & O. R. at Sharon Junction, a distance of about ten miles; and also from Sharon southward into the borough of West Middlesex, a distance of about six miles; both of which roads are main line, and over both freight and passengers are carried. 2. In the year 3874, said Sharon Railway surveyed and located a branch road from its main line near the furnace of Boyce, Rawle & Co., in Hickory township, northward into the borough of Sharpsville, leading to the Douglass and Spearman furnaces, and during said year 1874, and the year following, graded and constructed said branch road to a point known as the Strawbridge north line, a distance of about two thousand three hundred feet, and in July, 1884, completed the same to Cherry street in said borough of Sharpsville : the said branch road as located and constructed occupies the steep bluff bounding the old Erie canal on the east, and is known in this controversy as track C. 3. In 1874 and 1875 the plaintiff company acquired by purchase from various persons certain pieces of real estate, lying west and south of the furnace property of Boyce, Rawle & Co., and adjoining its main line on the east, for the purpose and with the intent of locating its distributing yard there, for the accommodation of the business of its road and branches; and the land so acquired is conveniently located, well suited and necessary to enable the plaintiff company economically and expeditiously to carry on its present and prospective business. That throughout the length of the land so acquired for yard purposes, the plaintiff company is obliged to keep an open water course about six feet wide at the bottom and about eighteen feet wide between the banks at the top, being the bed of the old canal, to supply water to the iron manufacturing establishments along the line of said old canal. 5. The plaintiff company has also now located and constructed on said land various other tracks, known as tracks B, D, F and K, as shown on the maps, which connect with its main line and track C, and which are all used by it in carrying on its present freight business, and are necessary for the convenient and economical transaction of said business. 6. The Sharpsville Railroad Company, defendant in this case, is also a corporation duly organized under the laws of the state of Pennsylvania, by articles of association dated March 3,1876, and by virtue of its charter and articles of association is authorized to construct, maintain and operate a railroad “from a point in the borough of Sharpsville, in the county of Mercer, at which a connection with the Sharon Railway may conveniently be made; thence to and across the line and tracks of the Erie and Pittsburgh Railroad, and to a connection with that railroad, and through the southwestern portion of the county of Mercer to and into the township of Wilmington in the county of Lawrence; thence through the said township of Wilmington to a connection with the New Castle and Franklin Railroad; thence across said New Castle and Franklin Railroad, and through the northeastern portion of the county of Lawrence, to and into the county of Butler, and to a point in the township of Cherry, in said last named county, to connect with the Shenango and Allegheny Railroad, and with any public railroad built or to be built in or through the northern part of the county of Butler,” — a distance of about thirty-five miles. 7. That in pursuance of its charter and articles of association, the said Sharpsville Railroad Company located and constructed, and now maintains and operates, a railroad from a point of connection with the Sharon Railway in the borough of Sharpsville, to Wilmington Junction in the county of Lawrence, where it connects with the Buffalo, New York & Philadelphia Railroad (late New Castle & Franklin), a distance of about seventeen miles. 8. That since the construction of its main line, as above stated, and the occasion of the present controversy, tfie said Sharpsville Railroad Company has located a branch railroad, called the Sharon Branch of the Sharpsville Railroad, beginning at the western terminus of its said main line in the borough of Sharpsville, thence south along the east bank of the old canal, and crossing at grade track C and other tracks of the Sharon Railway near the furnace of Boyce, Ilawle & Co., also crossing at grade the track of the Middlesex line of said Sharon Railway about 4000 feet fm tlier south, known in this controversy as the water-tank crossing, near the borough of Sharon. 9. That the line of said Sharon branch of said Sharpsville Railroad, as the same had been located and as it was proposed to build it at the time the injunction was granted in this case, passed longitudinally through the land of the Sharon Railway, not including the land taken at the water-tank crossing, for a distance of about 2600 feet, of an average width of about 50 feet, and crossing track (1 at grade at an angle of 6 deg. 15 min.; but after plaintiff had closed its testimony in chief, and defendant was proceeding with its testimony, W. C. Agnew, the assistant general manager of the Sharps-ville Railroad Company, announced that a change had been made in the location of said Sharon branch, through the land of the Sharon Railway, which change had been ratified and approved by the board of directors of said Sharpsville Railroad Company, by resolution adopted May 25, 1885, and that he had prepared a map of the changed location, showing that the point of crossing of track C was thrown further south, and the angle of the crossing increased to 11 deg. 18 min., which map was offered in evidence by the defendant, and is marked exhibit No. 2. That the new location thus proposed by the defendant company for its Sharon branch passes longitudinally through the land of the plaintiff company as follows: Beginning at the north line of Boyce, Rawle & Co.’s land, thence south through land of plaintiff lying between its main track and its track C for a distance of 550 feet to the point where it is- proposed to cross said track C at grade, appropriating a strip of land, not including allowance for slopes, 16 feet wide for that distance; thence from the point of crossing south for a distance of about 1400 feet, appropriating a strip of land varying in width but averaging about 36 feet wide, making a total of 1950 feet in length, of an average width as above stated, not including slopes; and if we add to this the water-tank crossing, where a strip, not including allowance for slopes, 16 feet wide for a distance of 200 feet, is appropriated, we have a grand total in distance or length of about 2150 feet, by a width averaging about 36 feet, of the land of the plaintiff company, sought to be appropriated by the defendant company upon or over which to construct its branch road, according to its exhibit No. 2. 10. The master also finds, that in the location and construction of its Sharon branch from the borough of Sharpsville down to the north line of the land of Boyce, Rawle & Co., the said defendant company has for quite a distance encroached upon the road-bed or slope of the plaintiff company’s track C : but he further finds that these encroachments could be easily-remedied and would not interfere with the safe and successful operation of track C, as retaining walls could be constructed at small expense at such points as there might be danger of the road-bed of track C sliding, without affecting its usefulness or convenience. The foregoing are, I believe, the material facts in this case, and are, at all events, the facts which must control in its determination. If the question involved were simply the right of defendant company to cross at grade with its branch road the track or tracks of the plaintiff company at or near the furnace of Boyce, Rawle & Co., including the right to occupy for cross- ’ ing purposes only so much of the right of way or land of plaintiff as might be necessary for that purpose, the position and argument of the learned counsel for the defendant could not, perhaps, be successfully met. Indeed, if that were the only question in the case, the master is inclined to believe that, under the principles of law governing crossing cases, he would’ probably reach the ssame conclusion as defendant’s counsel. But when it is considered that the proposed branch railroad, beginning at a point 550 feet north of the point of crossing and proceeding thence south longitudinally through the land of the plaintiff company for a distance of about 1900 feet, crossing the track or tracks of the plaintiff in its course, at the sharp angle of 11 deg. 18 min., it is plain that the crossing is only secondary or incidental to the appropriation of the land. Tt seems to me, therefore, impossible to separate the consideration of the questions involved in the attempt to locate a grade crossing over the plaintiff’s tracks, under the facts of this case, from the questions involved in the attempt to appropriate the plaintiff’s land, and the proper determination of this latter question, in the opinion of the master, will dispose of the former. The real question, therefore, is, can the defendant company, in its exercise of the right of eminent domain, appropriate to its own exclusive use and occupancy, land acquired, owned and used by the plaintiff company for the convenient and economical transaction of its corporate business, and for yard purposes ? And particularly, when it is only a branch road the defendant seeks to construct through said land? ***^**** It would seem the primary purpose had in view by the persons who organized and obtained a charter for the defendant company, had been accomplished as soon as they had located and constructed their railroad from a point of connection with the plaintiff company’s railroad in the borough of Sharpsville to Wilmington Junction in Lawrence county, and that to continue their line from its Sharpsville terminus down to the borough of Sharon would be an extension of the main line rather than a branch. Perhaps, however, under the general authority given to said defendant company in its charter, and under the ruling of the Supreme Court in West. Penn. R. Co.’s App., 99 Pa. 155, it has the power to locate and construct a so-called branch from its Sharpsville terminus to Sharon, provided it does not materially interfere with the vested rights and franchises of sister companies. It will be observed, however, that said defendant company can only claim this power under a general authority and not by any express grant; that whilst the plaintiff, in the exercise of its undoubted corporate rights, acquired the land, which is the occasion of the controversy, for yard purposes, the defendant can only claim the right to .appropriate a part of said land as an incident to an incidental right it has to construct such a branch as is contemplated in this ease. The right of the defendant to appropriate said land, under the facts of the case, the plaintiff denies. That property owned by one railroad company may be appropriated by another railroad company exercising the right of eminent domain, cannot be denied. But that a railroad company may acquire real estate for present business necessities, as well as in view of prospective increase, and hold the same without risk of being infringed upon or taken from it by another company, I think is also true. At all events, there must be a necessity for the taking, and as was said by Mr. Justice Gordon, in Penn. R. Co.’s App., 93 Pa. 150, “ a necessity so absolute that, without it, the grant itself will be defeated. It must, also, be a necessity that arises from the nature of things, over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience or for the sake of economy.” We have already seen that the defendant company has constructed the railroad contemplated at the time its charter was obtained, from a point of connection with the plaintiff company in the borough of Sliarpsville to Wilmington Junction in Lawrence county. There is no necessity, therefore, to prevent a failure of its chartered purposes, that it should be allowed to take complainant’s land. The only purpose it has in view in desiring to construct a branch to Sharon, is that it may carry its own freight to and from the Sharon furnaces, and the furnace of Boyce, Rawle & Co., instead of receiving it from or turning it over to the plaintiff company as the case may be. * * ifr i-c # * Under the facts, therefore, as they were developed in this case, and as they have been found, and the principles of law applicable thereto, the master is of the opinion that the defendant company cannot be allowed to construct its branch railroad through the plaintiff company’s yard as located at grade, and would recommend a decree to that effect. [If the issue had been confined to the one question, of the right of the defendant to appropriate the plaintiff’s land, it is probable, with its determination in favor of the plaintiff, the master’s duties would have ended, but whilst the bill denies the right of the defendant to construct its branch line as located through the land of the plaintiff, it seems also to recognize a right in the defendant to construct said line provided it can be done without materially interfering with plaintiff’s franchises. Under the provisions of the act of June 19, 1871, P. L. 1861, and particularly the second section, of said act, perhaps this view is correct. In order, therefore, to show that there were other available routes which the defendant could adopt, or that it might cross over plaintiff’s tracks by a viaduct, without doing any serious damage, the plaintiff introduced a large volume of testimony, and the inquiry was thus enlarged.] 1 Considering the testimony introduced upon this inquiry, the master recommended a decree in substance allowing the defendant company to construct its road through the plaintiff’s land by a proposed line M., somewhat variant from the located line of defendant, and passing over the plaintiff’s tracks by a viaduct, and also allowing the defendant to cross the Middlesex line, near the water tank, at grade. The plaintiff company filed an exception to that part of the report in [ ] \ and to the decree recommended by the master, claiming that the master, having found all the facts and the law in favor of the plaintiff, and that the defendant had no right to appropriate any of the land of the plaintiff now occupied and used or intended to be occupied and used by it for a yard, and that the same was necessary for that purpose, should have recommended a decree restraining the defendant from interfering with said land in any way, and was not justified by the pleadings in recommending a decree permitting the defendant to cross plaintiff’s land by a viaduct; and, therefore, the plaintiff moved the court to overrule that portion of the master’s report and to make a decree restraining the defendant from crossing said land in any way whatever. A number of exceptions were filed by the defendant com-parry, and after argument, the court, Mehábd, P. J., on May 14, 1888j filed an opinion in which it was held, inter alia, that “ the whole of this land is not necessary for the plaintiff’s uses, but that sufficient can be spared to allow defendant a way for a single track and enough still be left for the convenient and proper exercise of plaintiff’s franchises, regard being had, not only to the present, but also to the future wants of the plaintiff.” For reasons set forth in' said opinion the decree recommended by the master was declined, and a decree made dissolving the preliminary injunction then existing, after ten days from date; giving to the defendant company the right to construct its branch railroad across the roadway and tracks of the plaintiff’s branch C, at grade, and over its adjoining land, on the location proposed by defendant and shown by exhibit No. 2; also to construct and operate its branch railroad across the roadway and tracks of plaintiff’s Middlesex branch at grade, and over its adjoining land on the said location; but subject to the payment, when thereafter legally ascertained, of such damages as the plaintiff company might thereby sustain; the said decree containing various provisions defining and establishing the rights of the parties respectively. Thereupon the plaintiff took this appeal, assigning said opinion and decree as error.
122 Pa. 547Richards v. McGough (1888)
No. 160 October Term 1888, Sup. Ct.; court below, No. 3 June Term 1888, in Equity. On March 30, 1888, Daniel McGough and others, as the duly elected and qualified members of council of Ebonsburg borough, filed a bill in equity against T. Mason Richards, as the duly elected and qualified burgess of said borough, averring that said borough was originally incorporated by the act of January 15, 1825, 8 Sm.
122 Pa. 557Gibson v. Poor Dist. of Plumcreek Tp. (1888)
ERROR TO THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY. No. 181 October Term 1888, Sup. Ct.; court below, No. 92 June Term 1887, C. P. On March 22, 1887, an action of assumpsit was brought by Louis C. Gibson against the Poor District of Plumcreek township, the declaration averring the right to recover the sum of $440 borrowed by the defendant of the plaintiff on January 28, 1884, and “ laid out and expended for the use and advantage of the said defendant in discharge of the defendant’s certain debts,” etc. The declaration also contained the common counts. The defendant pleaded non assumpsit. At the trial on September 4, 1888, it was shown that prior to January, 1884, a contest arose in the Quarter Sessions of Armstrong county, between the overseers of the poor of Plum-creek township, in Armstrong county, and the overseers of the poor of Rayne townslup, in Indiana county, with reference to the support and maintenance of certain paupers, which contest resulted in a decree by which the poor district of Plumcreek township was ordered to pay to the poor district of Rayne township the sum of $420 and costs. To discharge the obligation thus created, the overseers of the poor of Plumcreek township borrowed from the plaintiff the sum of $440, giving him a negotiable note for that amount, dated January 28, 1884, payable one year after date, and signed by “ John F. Bell and Jacob Clark, Overseers of the Poor of Plumcreek township.” The money thus obtained was at once applied to the payment of the decree made in favor of Rayne township. Afterwards, as it was made to appear, the overseers of Plum-creek township obtained an order of removal of the same paupers to Washington township, in Indiana county. This order of removal was sustained by the court on proceedings attacking it, and Washington township was decreed liable and paid to the overseers of Plumcreek township the sum of $420. In addition to the foregoing, the overseers of Plumcreek township, probably before the money had been received from Washington township, directed a tax to be levied to meet this same expense, which tax was collected and something like $700 came into the hands of the overseers of the poor of Plum-creek township. The court, Neale, P. J., after reviewing the evidence of the foregoing facts, charged the jury: Overseers of the poor have only such powers as are granted to them under the statute, and so it is with school directors aDd supervisors of roads. The duties of those different township officers are circumscribed and limited by statute. They have no right under any circumstances to exceed the powers conferred upon them by the law. They are not authorized under the general law to negotiate loans. They are authorized to take care of the poor and to see that tax rates are levied sufficient for the purpose of defraying the expenses connected with their duties as overseers of the poor for their respective townships, but they have no right under the law to go beyond that duty. The duties of overseers of the poor, school directors and supervisors of roads, are limited, because as lias well been said by the counsel arguing this case on behalf of the defendant, if in one case an overseer of the poor could contract an honest debt and borrow money and give an obligation that would bind the township, he could also contract a dishonest debt and give an obligation that would bind the township to the same extent and with the same force, and no tax payer could know the amount of taxes he might be called upon to pay or how far his property lying within that township would become liable for the debts thus contracted by officers exceeding their powers. If an overseer of the poor can contract such debts in such a manner, by giving the obligation of the township, then school directors would have a right in the same way to do so, and supervisors of the roads in the same way, and all would be at sea as to what the actual responsibilities of the township might be, or what the individual responsibilities of the citizens of the respective townships might bo. The law, therefore, is exacting, that these officers shall be limited in the exercise of their powers, and shall go no further than it authorizes them. And so we say to you, gentlemen of the jury, that strong as we think the claim of the plaintiff in this case to be, yet under the law as we understand it and as we have to interpret it, we aro, sometimes confined in our duty, and cannot permit a claim of this kind to be collected off the township upon a proceeding such as this. It is true, that this suit is not brought directly upon the note, but the note is offered in evidence, and not only the note in evidence but the testimony of the witnesses all corroborate the fact, that this was nothing else than a loan. Gibson loaned the money to the overseers for the term of one year with interest from date of its execution, and the witnesses concur in saying that the money was borrowed from Gibson, and Gibson himself says that the money was loaned to the overseers. We cannot separate the evidence to show that it was anything else than a distinct loan, and if it was a loan, we are bound to say that the law does not authorize the borrowing of money for that purpose, nor the giving of obligations on the part of the overseers of the poor for money they have borrowed. * # % * # # & On the part of the plaintiff we are asked to charge as follows : 1. If the jury find from the evidence that the defendant obtained from the plaintiff on January 28, 1884, the sum of four hundred and forty dollars, and that the same was applied to the discharge of the indebtedness of the defendant prior to that date incurred, the defendant is bound to repay it to the plaintiff, together with interest, not from any contract entered into by her on the subject, but from the general obligation to do justice which binds all persons, whether natural or artificial, aud the verdict of the jury must be for the plaintiff. Answer: That point is refused.1 2. If the jury find that the township of Plumcreek was indebted to the township of Rayne, by a decree of the Quarter Sessions of said county, in the sum of four hundred and forty dollars, including costs; that the defendant requested the plaintiff to pay the same, and that they would subsequently repay or refund the amount so as aforesaid by him expended; that in pursuance of said request the plaintiff did pay the aforesaid amount in discharge of the said defendant’s indebtedness, if they so find, they are instructed that such a transaction is not a borrowing of money, but a contract simply for the payment of a debt which the defendant was already bound to pay, and their verdict ought to be for the plaintiff. Answer: Refused. If the facts set forth in this point are true, it would seem that the right, if any, of the plaintiff, would result from the fact of acquiring the rights of Rayne township, and if so, then the remedy would seem to be by enforcing, under proper substitution, the decree already entered in favor of Rayne township, which would be in a different forum.8 3. If the jury believe that the defendant township received the benefit of the money ($440) paid by the plaintiff for the use of the township and has retained and enjoyed the use of the same, then in the absence of any contract, the plaintiff has an undoubted remedy against the township for money had and received, paid out and expended for the rise of the said defendant and at her request, and the jury should find in favor of the plaintiff. Answer: That point is refused under the facts in this case.3 4. If the jury believe it has been the habit and custom in the defendant township, to meet any deficits existing in the township treasury, and to discharge any unexpected indebtedness by the borrowing of money for the use of the township by the overseers of the poor, that this fact appeared in the auditor’s settlements and was known by the citizens throughout the township and acquiesced in by them; that in pursuance of said habit, custom and acquiescence and upon the strength and credit thereof, the money in controversy was procured from the plaintiff and expended for the benefit and use of the municipality in the discharge of a prior fixed indebtedness ; that said money was enjoyed andstillis enjoyed by them the incorporators, the conclusion is irresistible that said corporators ought to pay back the money, and the verdict of the jury should be for the plaintiff. Answer: That poiut is refused under the facts in this case.4 5. That under all the evidence the verdict of the jury should be for the plaintiff. Answer: That point is refused.5 The defendant requests us to charge as follows: 1. That overseers of the poor have no right to borrow money for the use of a township so as to render said township liable, and the obligation in this case showing that it is for borrowed money, the plaintiff cannot recover. Answer: That point is affirmed.6 3. The overseers of the poor of a township have no right to incur a debt or increase the same except by a vote duly recorded upon the minutes, and after complying with the other requisites of §§ 1 and 2 of the act of April 20, 1874, P. L. 65, and having failed to comply with such requisites the obligation is void and the plaintiff cannot recover. Answer: We affirm that point rather as following the first point than for anything it contains in itself. 5. The power to borrow money does not belong to a quasi municipal corporation such as a township; such power must be conferred by legislature, and there being no such power conferred upon the overseers of the poor of Plumcreek township by legislature, and the undisputed testimony being that the plaintiff seeks to recover money loaned to the overseers of the poor of said township, he cannot recover. Answer: That point is affirmed.7 9. Under all the evidence in this case the verdict of the jury should be for the defendant. Answer: That point is affirmed, and we direct the jury as a matter of law that their verdict must be entered in favor of the defendant.8 The jury returned a verdict for the defendant, and judgment being entered thereon, the plaintiff took this writ, assigning as error: 1-5. The answers to plaintiff’s points.110 5 6-8. The answers to defendant’s points.6 *° 8
122 Pa. 565Fidelity Ins., T. & S. D. Co. v. West. Penn. & S. C. R. (1888)
FROM THE DECREE OF THE COURT OF COMMON PLEAS OF MERCER COUNTY, IN EQUITY. No. 167 October Term 1888, Sup. Ct.; court below, No. 3 January Term 1887, C. P. in Equity. On November 6, 1886, The Fidelity Insurance, Trust and Safe Deposit Company, trustee, filed a bill in equity against The West. Penn. & Shenango Connecting Railroad Company and W. W. Reed. The bill averred that the W. P. & S. C. R. Co. was in the hands of a receiver, under a decree of the Circuit Court of the United States for the Northern District of Pennsylvania, and that leave of said court had been obtained to institute the suit; that said railroad company had duly executed and delivered to the plaintiff a certain mortgage of its property and franchises, in trust to secure its bonds issued and in the hands of purchasers, which said mortgage was the first lien upon all the property therein described, and that the mortgagor had made default in the payment of interest upon its bonds; that W. W. Reed claimed a large balance to be due Mm for work and labor done and materials furnished for said railroad under a contract with the company, for which balance he claimed a lien upon the property and franchises of the company prior to the lien of the mortgage to the plaintiff, but without lawful right so to claim. For these and other grounds averred in the bill, the plaintiff prayed that its said mortgage should be declared the first lien upon the property and franchises therein described, for the benefit of the bondholders, and that the amount due thereon should be ascertained, and that in default of payment of the amount due, the mortgaged property and franchises should be sold free and clear of all liens, etc. Separate answers on the part of the defendant company and W. W. Reed, being filed and issue joined, on March 7, 1887,. Mr. Q. A. G-ordon was appointed examiner and master. One of the facts controverted before the master was as to the date when the construction contract of the defendant company with W. W. Reed was made. This contract was in writing and was dated August 15, 1882, though not executed that day but early in the following month. Negotiations were had between Mr. Reed and the president and certain directors of the road, and on July 7th, 1882, Mr. Reed submitted a written proposition to construct the road upon terms which corresponded nearly with the written contract made when the president and two of the directors again met Mr. Reed on August 15th; hut whether the contract was fully agreed upon verbally, on July 7th, when Mr. Reed’s proposition was made, or not until August 1.5th, when the paper was signed, at all events Mr. Reed did no work under it until after the latter date. This question of fact, therefore, as well as the others in issue were found by the master in his report hied on June 26, 1888, to be as follows: 1. The railroad company, defendant in this case, was incorporated by virtue of the railroad laws of Pennsylvania, on or about April 28, 1881, under the name of the Connoquenessing Valley Railroad Company, which name was afterward, by a decree of the Court of Common Pleas of Butler county, dated July 11,1882, changed to the West. Penn, and Shenango Connecting Railroad Company. 2. The railroad of said corporation extends, from the junction of the Western Pennsylvania Railroad, in the town of Butler, Pa., to Coalsville Junction on the line of the Shenango & Allegheny Railroad. 1 The said railroad is all within the county of Butler, Pa., and the length of its main line is about twenty-one miles, and of its sidings about two miles. 3. The principal office of said railroad company is located in the town of Greenville, Mercer county, Pa. 4. The capital stock of said railroad company consists of ten thousand shares of the par value of fifty dollars each, making a total of $500,000. All of the capital stock was subscribed, but no part of it was paid up, except what the law required to be paid at the time of the incorporation of the company, viz.: about $12,000; the balance was held by the various subscribers in trust for the corporation. 5. At a meeting of the stockholders of the railroad company, held on February 28,1882, a resolution was passed authorizing the board of directors to issue bonds of the corporation to the amount of $400,000, and to secure the same by a first mortgage on the railroad and other property, franchises and appurtenances, of the said railroad company, for the purpose of raising money to aid in the construction and equipment of its railroad. In pursuance of this authority, the hoard of directors caused to be executed the mortgage involved in this suit, a eopy of which is annexed to the bill. The said mortgage covers the railroad and all other property of said railroad company, together with its revenues, rights, privileges and franchises, and is made to the Fidelity Insurance, Trust and Safe Deposit Company, trustee, in the sum of $400,000, to secure four hundred coupon bonds of said railroad company, of $1,000 each, bearing interest at the rate of six per cent, per annum, the interest payable semi-annually on the first of January and July of each year, and the principal in thirty years from the date of the mortgage. The mortgage is dated July 1, 1882; it was, however, executed on July 12, 1882, and was recorded in the office of the recorder of deeds, of Butler county, on July 18, 1882. The boiids bear the same date as the mortgage. 6. B. K. Jamieson & Co., bankers of Philadelphia, were employed by the railroad company as its agents or brokers, to negotiate the sale of tlie bonds, and the trustee with whom the bonds had been deposited was directed by the railroad company to deliver them to said brokers as they would make sale of them, and deposit with said trustee the proceeds of such sales. Under this arrangement all of the said bonds were sold and delivered to the purchasers, on different dates between July 15, 1882, and July 19, 1883. 7. All of these bonds are still outstanding, and there is now due and unpaid on the same the principal sum, viz.: $400,000 and interest thereon from January 1, 1885. 8. At the time of the execution and recording of the mortgage, the railroad company had no railroad, and no contract for the construction of any had yet been entered into. 9. On August 15,1882, W. W. Reed entered into a contract with the said railroad company for the construction of its railroad. This contract is in writing, and a eopy of the same is annexed to the bill. By its terms the consideration to be paid to Reed for the construction of the railroad is made to consist partly in cash and partly in the capital stock of the railroad company. J. T. Blair, A. H. Steele, and Thomas P. Fowler are parties to this contract, but only for the purpose of transferring to Reed the stock, which nearly all stood in their names on the books of the corporation. Although this contract provides for the transfer to Reed of the entire capital stock of the railroad company, this.’ was simply a device intended by the parties as a means .of making said stock “ paid-up stock.” It was not meant that Reed should retain the stock as his own property. When it was subsequently transferred to him by the making out of certificates therefor in his name, he immediately indorsed the certificates in blank and returned them to Blair and Steele. The real consideration which Reed was to receive for constructing the railroad was the cash payments stated in the contract. 10. Reed commenced the work of constructing the railroad under his contract some time during the latter part of August. 1882, and pursued the same continuously until it was completed, which was about September 10, 1888. 11. The railroad company having failed to pay in Rill the cash payments due Reed for the construction of the railroad under the contract, he brought suit for the balance remaining unpaid thereon, in the Court of Common Pleas of Butler-county, on April 5, 1884; and on April 22, 1883, recovered a judgment against said railroad company for 167,079.79. This judgment still remains due and unpaid. The record shows an assignment of the judgment by Reed, the plaintiff therein, to Charles Crocker, dated December 22, 1885. Upon the foregoing facts, the master concluded as matter of law that the debt evidenced by the judgment of Mr. Reed was of the specific nature contemplated by the resolution of 1848, but it did not follow that the plaintiff’s mortgage was subordinate to it. Only such mortgages are invalid as against a contractor’s claim, as are subsequent thereto, in point of time : Fox v. Seal, 22 Wall. 424; Pittsb. etc. Ry. Co. v. Marshall, 85 Pa. 187; McBroom’s App., 44 Pa. 92 ; and the proper date to which to refer the liability of the company for the balance due .Reed was August 15, 1882, the date the obligation was assumed, although the work was not to be done until afterward. The master further held that, as the bill was filed, not to determine by a decree made in advance of the sale, what claims would be liens upon the fund arising therefrom and the order of their priority, but to determine whether the proposed sale would be utterly void as against Mr. Reed’s judgment, and leave the mortgaged premises subject to its payment in the hands of the purchaser, it was unnecessary to decide upon the position taken on behalf of Mr, Reed that, as against his claim as contractor, the mortgage could date only from the sales of the bonds, ruling however that, in order to save his judgment from the effect of the proposed sale, it was incumbent upon Mr. Reed to show that the whole mortgage was subsequent to the date of his contract, and that if the mortgage, to the extent of the bonds sold - after the date of that contract, was invalid as against the balance due him, the fund arising from the sale would be distributed at the proper time, when the question could be decided. It was further contended on the part of Mr. Reed that the mortgage was void, because it was made up for more than double the amount actually paid in of the capital stock of the-company, in violation of the act of March 13, 1873, P. L. 15, authorizing railroad corporations to mortgage their property, rights and franchises to secure their bonds issued; but the master ruled that this question was not raised by the pleadings, and that, moreover, if it were, such a defence could not be made by the defendant company: Wood’s Railway Law, §§ 172, 191. The master therefore recommended a decree, in substance :• (1) That the plaintiff’s mortgage was a first lien upon the defendant company’s property and franchises to the extent of 125,000, the amount of the bonds secured thereby that had been sold on August 15, 1882, the date of the construction contract with Reed, with interest from January 1, 1885. (2) That the amount due and unpaid upon the bonds secured by the mortgage, was the entire sum thereof, to wit, $100,000, with interest from January 1, 1885. (3) That said last mentioned sum be paid by the defendant company to the plaintiff, with interest, within thirty days; or (1) in default thereof that an order of sale be issued. To this report of the master exceptions were filed on behalf of Mr. Reed, raising the questions raised by the assignments of error shown hereafter. These exceptions being overruled were filed with the report, and, on the argument thereof, the, court, Mehard. P. J., on July 14, 1888, filed the following opinion: The questions raised by the exceptions filed to the report of the learned master, are chiefly, 1st, whether the mortgage of the defendant company to the plaintiff is fraudulent and void as against the claim of W. W. Reed; and, if not, 2d, whether plaintiff’s mortgage secures priority of payment for all the bonds covered by it, over the claim of W. W. Reed. That the mortgage is void as against Mr. Reed’s claim, is predicated on two grounds, 1st, Because of the resolution of January 21, 1843, P. L. 367, and 2d, because of § 7, Art. XVI., of the Constitution, and the act of March 13, 1873, P. L. 45. It seemed to be assumed in the argument of this case by the learned counsel for Mr. Reed, and we think with entire correctness, that the validity of plaintiff’s mortgage as affected by the resolution of 1843, depended upon whether the defendant company’s liability to Reed arose before or after the execution of the mortgage. [A review of the evidence leads us to agree with the learned master, that the negotiations between the defendant company and W.. W. Reed ended, and a definite contract was made between them on August 15, 1882, and not before that date. Inasmuch as the plaintiff’s mortgage had been executed on July 12th, and recorded in the proper office on July 18th preceding, for the reasons given by the learned master, it does not fall under the ban of the resolution of 1843.] 8 [It is argued that this mortgage is void because it was made in violation of the act March 13, 1873, the last clause of the first section whereof is as follows, viz.: “Provided, that this act shall not be construed to empower any railroad company •to issue bonds in excess of the capital stock actually paid in.” The learned master has decided against this position for reasons which we think sound. Moreover, the master has found that “ although this contract (between Reed and the defendant company) provides for the transfer to Reed of the entire capital of the railroad company, this was simply a device intended by the parties as a means of making said stock ‘ paid-up stock.’ ” If the stock was thereby made “ paid-up stock” it belonged to Reed, and practically, he then became the “ company ” which was from time to time disposing of the bonds secured by plaintiff’s mortgage.] 3 But the learned master further finds: “ it was not meant that Reed should retain the stock as his own property. When it was subsequently transferred to him by making out the certificates therefor in his name, he immediately indorsed the certificates in blank and returned (he same to Steele and Blair. The real consideration which Reed was to receive for constructing the railroad was the cash payments stated in the contract.” This, of course, means that although the stock was not in fact paid up, Mr. Reed gave it the appearance and intended it to have the effect of “paid-up stock.” Whether he did this for the benefit of himself or of others is immaterial. It is evident from the manner in which the stock was issued and transferred that Mr. Reed must have known the company got no funds from that source. [He must likewise have known that the only other source from which the cash he was to receive could come, was the bonds secured by this mortgage, of the existence whereof he had not only constructive notice, but actual knowledge at the time he entered into the contract with defendant company.] 4 From that source he did receive all the cash his contract called for, save the amount of his present claim. If, then, wrong were done under the act of assembly, Mr. Reed was a party to it and he received the benefit. Whether Mr. Reed were the owner of the stock of the company, or only participating in a scheme to give the stock a false appearance of being paid up, he cannot now complain of a violation of the law. The learned master has confined his attention to the question whether the mortgaged land, if sold by the trustee under the mortgage, will remain subject to the claim of W. W. Reed in the hands of the purchaser, and omitted to consider whether all the outstanding bonds have an equal right to priority. The first question is perhaps the most important, but the latter is likewise of moment to the plaintiff and defendant, Reed, at this time. The future 'conduct of the claimants with respect to this property will doubtless be determined by the relative merits of their claims. The latter question is embraced in the issue made by the pleadings, and unless there be a substantial objection or a good reason for postponing its consideration, is properly before us and should now be determined. Ho sucii objection has been made by either party, but on the contrary, both seem desirous to have it decided in this suit. As we perceive no good reason for delay it is embraced in this opinion. If the facts and conclusions last set forth be correct, they are conclusive against the priority of Mr. Reed’s claim over any of the bonds secured by plaintiff’s mortgage. There are other reasons which lead to the same conclusion. A somewhat technical reason is to be found in the nature of the instrument by which the bonds are secured. , it is a deed of trust in the nature of a mortgage. It ' like a mortgage rather than a mortgage in fact.’ The essential distinction seems to be that it conveys to the trustee an actual legal estate, and not a mere mortgagee’s lien: 2 Washburn on Real Property, 78, § 11. The rights and duties of the trustee, the debtor and the cestuis (pie trust are to be found in the instrument itself: Ibid. 78-81; Bradley v. Chester Valley R. Co., 36 Pa. 141; Ashhurst v. The Montour Iron Co., 35 Pa. 30. It seems clear that the only decree a court of equity could make would be for the trustee to carry out his trust according to its terms, unless cause were shown, such as fraud, accident or mistake, to warrant a modification. No such ground has been shown. On the contrary, the facts this case presents are, a conveyance of the defendant company’s property in trust, to be reconveyed on the fulfillment of certain conditions, or on the happening of certain events to be sold, and the proceeds applied to the payment of the bonds held by the cestuis quo trust, all of whom are innocent purchasers for value ; the contingency has arisen whereupon the bondholder could require a sale of the property in order to pay their bonds. In the absence of facts showing a superior equity, it must be held that they are entitled to the proceeds of such sale. A reason of more substance is found in the nature of the bonds and their relation to the mortgage. Where a mortgage is given to cover future advances by one man to another, it is not a matter of much inconvenience for the mortgagee to ascertain, from time to time, as he is called on for advances, whether there be intervening liens. It is therefore reasonable and just that he should do so, and is in harmony with the purpose of the mortgage. But a different case is presented where a public improvement is undertaken, requiring the expenditure of large sums of money, and the floating of a debt of great magnitude. The debt is necessarily divided into small parts and carried into different and distant markets. It would be out of the question to ascertain the state of the record or of the company’s affairs each time a bond was about to be sold. If this were made the duty of purchasers, it would prevent the sale of such securities altogether, or at least confine their purchase to such large concerns as could buy in bulk after due and careful inquiry; even then the facts would be open to doubt at every subsequent sale. Thus their value would be entirely reduced. For these and similar reasons “ the whole issue of such bonds must be treated as of the date of the mortgage, without regard to the time when they were actually put out, unless the contrary is clearly expressed:” Claflin v. Railroad Co., 4 Hughes, 12, 23; Nelson v. The Iowa Eastern R. R. Co., 8 Amer. Ry. Rep. (Shipman), 82, 88. [The. first paragraph of the decree recommended by the learned master, is therefore modified so as to read as follows, viz.: First, that the plaintiff’s mortgage, a copy of whicli is annexed to the bill, bearing date July 1, 1882, executed by the West. Penn. & Shenango Connecting Railroad Company, is a first lien to the amount of #400,000, with interest thereon from January 1, 1885, upon the railroad .and other property, tolls, franchises, incomes and effects therein mentioned, referred to or described, and is effectual, valid and binding thereon; and that the holders of the bonds secured by said mortgage are entitled to the benefit of all the rights ■'and securities thereby conferred; and it is ordered, adjudged and decreed accordingly. It is further considered, adjudged and decreed: that the amount due and unpaid upon the bonds secured by said mortgage, is the entire principal unpaid upon the bonds secured by said mortgage, viz.: #400,000, and interest thereon from January 1, 1885; that the West. Penn. & Shenango Connecting Railroad Company shall pay to the Fidelity Insurance, Trust and Safe Deposit Company, trustee, named in the mortgage, within thirty days after the entry of this decree, the said sum of #400,000, with interest thereon from January 1, 1885, in discharge of said mortgage and the bonds thereby secured; and that in default of such payment within the period aforesaid, the said railroad and other property, tolls, franchises, incomes and effects mentioned, referred to or described in said mortgage, with the appurtenances, be exposed to sale by public outcry, and sold clear and discharged from said mortgage and all other incumbrances and liens whatsoever and howsoever arising],5 by such person or persons, and under such order as to terms and conditions of sale and distribution of the proceeds thereof, as shall, at the expiration of said period, be appointed and directed by the court, on the application of the plaintiff in this case. Thereupon the defendant Reed took this appeal and assigned as error, inter alia: 1. The overruling of the exceptions to the master’s report. 2-4. The portions of the opinion embraced in [ ] 8 *° 4 5. The portion of the decree embraced in [ ] 5
122 Pa. 579B. & O. Employees' Rel. Ass'n v. Post (1888)
No. 41 October Term 1888, Sup. Ct.; court below, No. 166 June Term 1884, C. P. On April 18, 1884, William B. Post brought an action against The Balt. & O. Employees’ Relief Association, declaring in a narr filed on March 16, 1886, that in the “ month of December, 1882, said plaintiff being in the employment of the Baltimore & Ohio Railroad Company as the conductor of a gravel train, at the direction of said Baltimore & Ohio Railroad Company, made application to the Baltimore…
122 Pa. 601Chartiers Tp. v. Phillips (1888)
ERROR TO THE COURT OF COMMON PLEAS OF WASHINGTON COUIÍTY- No. 93 October Term 1888, Sup. Gt.; court below, Ho. 264 ’November Term 1886, C. P. On October 29, 1886, James J. Phillips brought an action In case against Chartiers township, to recover damages for injuries alleged to have been caused by the negligence of the defendant. At the trial on March 6,1888, the case of the plaintiff in chief was to this effect: On March 30, 1886, the plaintiff was about to drive front the place of Huston Phillips, in Chartiers township, to Canons-burg, and to pick up John F. Butler on the way. The mare had been ridden to the place of Mr. Phillips, and was to be harnessed with harness belonging to Wm. Butler and to be hitched in the latter’s buckwagon. The horse on which the harness was used was about the size of plaintiff’s mare. While the plaintiff was talking with Huston Phillips, the mare was harnessed and hitched by a neighboring farmer, who called out that everything was ready. The plaintiff then got into the wagon and drove some distance, when John F. Butler entered the wagon with him. Nothing occurred indicating that the mare had any difficulty working in the harness. They approached a point where the road was narrow; 11 ft. 8 in. in width, as measured the next day. On the left side, going in the direction they were driving, there was a steep declivity, extending thirty or forty feet from the edge of the road to projecting rocks which hung over a stream. At the top of the slope was a fence four or five rails high, of old rails, staked, with a single rider. The worm of the fence lay along the slope of the hill from the edge of the road; that is, the bottom rail was on or near the ground at each end with nothing to keep the fence in position, if thrust against from the roadside, except the stakes, insufficient for that purpose on account of the slope of the ground on which they stood. On the right hand side of the road the ground sloped from the roadway up under the fence and into the field above, with no rocks or stones to prevent a widening of the roadway. The soil of the roadway was a stiff limestone soil, of a character to make a good solid road when kept drained, but there was no drain to carry away the water which came down from the fields, above. As this narrow part of the road was reached coming southward, there stood a large oak tree, with its base and roots projecting nearly if not quite half way across the roadway. Its presence there had caused the heavy wagons to pass in towards the upper side of the road, then to turn to the left. From the tree onward there was a slight up grade of about one degree. The water, if it could run at all, would thus run northward in the direction of the tree, but just before it reached the tree it had turned into the roadway causing a deep mud hole, through which teams having passed the tree were compelled to travel. When the plaintiff and Butler had passed the tree they had to pass through the mud hole, then axle deep and from twelve to fifteen feet in length, when they emerged into a deep stiff mud out of which the mare could with difficulty lift her feet. Struggling along a little further in or near the middle of the roadway, suddenly the mare rose with her fore quarters, fell over to the left directly upon the fence, which gave way before her, and the team slid down the steep and over the projecting rocks, the mare falling upon the bed of the stream, while the plaintiff was pitched upon the farther bank. On examination it was found that, in the opinion of the physicians, the head of the right thigh bone had been driven through the hip-socket, causing great suffering and permanent disability. In the defendant's case in chief, testimony was introduced that at the time of the accident the roadway was from thirteen to fifteen feet wide ; that in respect of condition for travel it was not worse than other country roads for the time of the year, some of the witnesses testifying that there was no mud hole at all near the tree ; that but a small amount of surface drainage reached the bed of that part of the road, which was of material easily discharging the water that did reach it; that the fence at the edge of the road was a substantial worm fence of rails comparatively new; and, as evidencie that the mare’s fall was caused by the fact that the collar on her was sc. tight that it choked her, eight witnesses were called who testified to statements made by the plaintiff, some of them on the ground just after the injury, and others shortly afterward, that the accident was the plaintiff’s own fault, “ that he should not have put that collar on the mare, it was too small and choked her;” “when the collar was put on, he saw it was too tight, but thought it would take them to Canonsburg.” In his rebuttal case, the plaintiff denied that he had made the statements as to the tightness of the collar, attributed to him, and called a number of witnesses, among others the farme?who harnessed the mare, who testified that the collar was not too tight, but was a good fit, not only when placed upon her, but as shown by trials made after the injury. The court, McIevaike, P. J., after reviewing the evidence with general instructions, proceeded :— The plaintiff claims that the road where the accident happened was narrow; that the drainage was bad; that there was a large mud hole in the centre and extending almost across the road, and that the east side of the road next to a steep bank was not sufficiently guarded. You will carefully consider all the testimony bearing upon each of the alleged defects ; you will take into consideration the location of the road,,the extent and kind of travel over it, the season of the year and all the relevant surrounding circumstances and then determine, first, whether the township, by its proper officers, has been guilty of negligence in that they failed to have this road, on March 30, 1886, in a condition to afford a reasonably safe passage for the traveling public along it at this point; and, second, whether this negligence, if you find it, was the proximate cause of the plaintiff's injuries. For it would make no difference how negligent the township had been or was, in not repairing and keeping the road in good condition, if the accident was not the direct result of this negligence. To illustrate : Considerable has been said about this large oak tree that stood in the side of the road, and, conceding that allowing that tree to remain there would be a neglect of duty on the part of the township, endangering the traveling public, still this negligence cannot be made the basis of the plaintiff’s claim in this suit, unless the existence of the tree at that point contributed to the accident. Now, gentlemen, if after having carefully considered all the testimony in the case bearing on this branch of it, you should find that this piece of road was in a reasonably safe condition, under all the circumstances, when the accident happened, and that the accident could not reasonably be attributed to the negligence of the township, then you need go no further in your inquiry, for your verdict under such circumstances shonld be for the defendant. But if you find that the township has been guilty of negligence in this regard, then you will proceed to the second inquiry and determine whether the plaintiff, by his own negligence, in any degree directly contributed to the result. Did he do anything which preceded and had a direct connection with his going over the bank, that an ordinarily careful and prudent man would not have done, or did he leave any such thing undone that an ordinarily careful and prudent man would not have left undone ? The law that requires the township to keep its roads in a reasonably safe condition also requires the traveler to exercise the care and caution of an ordinarily prudent man while passing over these roads, and if his own carelessness in any degree contributes to the bringing about of an accident which in part could be attributed to the negligence of the township, then in such a case the township is relieved from liability, because it is only liable where the injury is the result of its own negligence and not the concurrent negligence of the township and the party injured. A traveler has a right to presume that roads are in a safe condition, but it is nevertheless his duty to keep his eyes about him and see that his wagon, horse and harness are in a condition for making the journey he proposes to make or is making, and that his horse is not allowed to go where he pleases on the road, but that he is properly driven. The driver must keep a lookout for the condition of the road over which he is driving; in other words, he must attend to the business in which he is then engaged. The degree of care required of a traveler in these matters that I have just been speaking of, is a degree of care that would be exercised by an ordinarily prudent or cautious man under the surrounding circumstances. Now, did the plaintiff in this case exercise this care? The defendant says not. They claim that the plaintiff’s mare choked; that the accident would not have happened if the mare had been properly collared and had not choked. On the one hand, it is claimed that the collar was one that had been used on another horse, that it was too small; that Mr. Phillips knew this; that he has several times admitted this fact, and that he also had admitted that the mare choked and that the accident was his own fault. On the other hand, it is claimed that this collar was not too small, that the mare did not choke, and Mr. Phillips denies that he ever admitted that he knew the collar was too small, or that he ever admitted that the mare choked. Mr. Phillips says that he trusted to Mr. Donnell to put the harness on; that he knew, however, that the collar was a strange collar, and that he did not examine the collar or harness or how they fit. [Now, gentlemen, you will consider all the testimony bearing on this point, and determine whether this- collar was too small, and whether its use resulted in choking the mare at the time of the accident. If you conclude that the collar Avas too small and choked the mare, and that this choking Avas the immediate cause of the accident, then you will determine from all the circumstances in the case as they appear from the testimony bearing on this point, whether the plaintiff kneAv that the collar was too small and took upon himself the risk of using it, or if he did not know it, whether, under all the circumstances, he ought to have known it.] 3 He Avas bound in the use of the horse, harness and buckwagon, to exercise the care of an ordinarily cautious and prudent man .accustomed to handling and driving horses. If on all the evidence you conclude that the plaintiff Avas negligent in this regard and that this negligence of the plaintiff in this regard or in any other regard, contributed in any degree to the accident, then this is the end of the plaintiff’s case and your verdict should be for the defendant. If you find, however, that this accident Avas the result of the township’s negligence and that the plaintiff did not in any degree by his own negligence and carelessness contribute to its happening, then your next inquiry Avill be what amount of damages ought this plaintiff to recover. *##-*•***-* The defendant asks us to charge you as follows : * * * * * * « 4. To render a township liable for an injury by a defect in the highway it must have been the sole efficient cause of the. injury, and if the jury find from the evidence that this accident to the plaintiff was caused by the uncontrollable struggle of a choking horse, or from this cause concurring with a defect in the highway, then their verdict must be for the defendant. Answer: Refused, unless the plaintiff by his negligence contributed to or Avas the cause of “ the uncontrollable struggle-of the horse.”1 5. If the jury find from the evidence that the plaintiff’s horse, on account of the use upon him of a collar that was too small, choked and became uncontrollable and plunged blindly over the bank, and if they further find that the horse would not have turned from the way or gone over the bank but for ■such choking, then the defendant is not liable. Answer: Affirmed, with the understanding that the cause set forth in the point was the sole and immediate cause of the horse going over the bank.8 If the fourth and fifth points are refused, then the court is requested to charge the jury: 6. If the jury find from the evidence that the plaintiff was negligently using a collar which was too small for the horse he was driving, and that this negligence directly contributed in any degree to his injury, then their verdict must be for the defendant. Answer: Affirmed. 9. That upon all the evidence in the case the verdict of the jury must be for the defendant. Answer: Refused.4 The jury returned a verdict in favor of the plaintiff for #8,229.35. Judgment having been entered on the verdict, the defendant took this writ, and assigned as error: 1. The answer to the defendant’s 4th point.1 2. The answer to the defendant’s 5th point.8 3. The part of the charge embraced in [ ] 3 4. The answer to the defendant’s 9th point.4
122 Pa. 613Wheeling, P. & B. R. v. Warrell (1888)
No. 142 October Term 1888, Sup. Ct.; court below, No. 288 November Term 1884, C. P. On October 11,1884, a summons in ejectment was issued by Charles Warrell against the Wheeling, Pittsburgh & Baltimore Railroad Co. to recover a strip of land described, “ containing about 5.22 acres, being in the possession and occupancy of said defendant corporation and used as a railroad track.” The defendant pleaded, not guilty.
122 Pa. 627Titusville Iron Works v. Keystone Oil Co. (1888)
ERROR TO THE COURT OE COMMON PLEAS OE VENANGO COUNTY. No. 105 October Term 1888, Sup. Ct.; court below, No. 132 November Term 1887, C. P. On October 30, 1887, a scire facias sur mechanics’ lien was issued at the suit of R. H. Boughton and E. H. Ames, doing business as the Titusville Iron Woiks, against the Keystone Oil Company, owner or reputed owner and contractor. The lien upon which the writ issued was filed on September 30,1887, for materials furnished by the plaintiffs between March 31, 1887, and July 30, 1887, for and about the erection and construction of the several buildings and structures constituting an oil refinery, upon a parcel of ground in Corn-planter township, containing 55.15 acres. The materials consisted of stills, boilers, tanks, etc., etc., furnished, the amount of the items in the claim aggregating §23,545.38. On December 16, 1887, the defendant company filed an affidavit of defence in which it was averred inter alia: 1. Plaintiffs did not give to defendant xxotice of the amouxxt and character of their claixn at the time of the delivery of the materials in the bill of particulars mentioned, or within ten days thereafter-, as is required by act of assembly. A rule upoxx defendant having been granted, to show caxxse why judgment should not be exxtered for want of a sufficiexxt affidavit of defexxce, the court, Taylor, P. J., on March 26, 1884, discharged the rule on the ground that no notice had been givexx as required by § 2, act of June 17,1887, P. L. 413; exceptioxx noted for the plaixxtiffs. , On March 31, 1888, a rule for a re-argumexxt was awarded. This rule was discharged on April 23, 1888, the coxxrt saying: Two reasons are urged upoxx the part of the.plaixxtiffs in support of the rule: First, the alleged uxxconstitutionality of the act of June 17, 1887, axxd secoixd, if said act should be held constitutioxxal, then that portioxx of the act requiring ten days notice upon the part of a material xxxaxx, is limited to the classes of persons xxamed ixx the act, axxd therefore not applicable to the plaixxtiffs. As to the first propositioxx. I have my grave doubts of the constitutionality of this act, but it is xxot so clearly so that I would, feel warraxxted ixx placing such judicial coxxstruction upon it. The secoixd reason is also plausible, but the legislature had jurisdiction of the subject matter, and when they used the broad terms, “ all material men,” etc., a Court of Common Pleas must fairly infer that the legislature intended what they expressed in such unmistakable language, however inconsistent it may appear when read in connection with the other provisions of the act. An exception having been sealed, the plaintiffs then took this writ, assigning for error: 1. The discharge of the rule for judgment. 2. The refusal to enter judgment for the plaintiffs.
122 Pa. 635Reed v. Mellor (1888)
ERROR TO THE COURT OE COMMON PLEAS OE BUTLER COUNTY. No. 223 October Term 1888, Snp. Ct.; court below, No. 30 June Term 1886, O. P. On March 18, 1886, an action of ejectment was brought by Louisa P. Mellor against Nelson P. Reed, to recover a lot of ground on Main street in the borough of Butler. The defendant pleaded, not guilty. At the trial on April 6, 1887, the evidence was closed on both sides, when the parties by a paper filed agreed bo dispense with a trial by jury, and to submit the cause to the decision of the court upon the evidence taken, under the provisions of the act of April 22, 1874, P. L. 109. On June 3, 1887, the court, McMichael, J., filed the following decision: The facts of the ease are found as follows: Charles C. Sullivan, Esq., was in his lifetime, and at the time of his death, seised of several tracts and parcels of land, among which was a piece of land containing about two and three fourths acres, situate in the borough of Butler, in Butler county, Pa. This piece includes the lot now in controversy. On January 29,1860, Charles C. Sullivan made his last will and testament, wherein and whereby, amongst other things, he devised and bequeathed as follows: “ All my estate, real and personal, wherewith it has pleased God to bless me, I hereby will and bequeath to my executor, hereinafter named, Charles McCandless, to hold the same and to convert the same, as soon as practicable, into money, as hereinafter described, and then pay the proceeds over to my wife, Susan Catharine, to be held by her as guardian of our children, and used in such judicious manner as she may deem most beneficial to herself and said children. And I do hereby appoint my said wife, Susan Catharine Sullivan, sole guardian of our five children, having full confidence she will take good care of their interests in this world, and educate them carefully in reading and studying the Scriptures of Truth, and in following their precepts all their lives. I further do authorize my said executor to sell and make deeds for all such portions of my real estate as he may deem it most to the interest of my said estate, to make sale of the same on terms of four equal animal payments, with the usual interest.” Some small legacies were bequeathed to other persons, which are not important to be noticed in this case, and Charles Mc-Candless was appointed executor. On March 3, 1860, after the death of Mr. Sullivan, this will was duly probated, and letters testamentary thereon were granted to the executor named therein. The testator left surviving him his widow, Susan C. Sullivan, and five children, whose names, with the dates of their births, as near as the evidence shows those dates, are as follows: Charles A., born in June, 184(3; Moses, born in November, 1847; Louisa, bom in May, 1849; Josephine, born in May, 1852; and Matilda, born in November, 1853. All these survivors are still living. On December 11, 1861, Charles McCandless, as executor of the will, made a deed to Mrs. Susan C. Sullivan, individually, for all the lands of which the testator died seised, wherever located in the county of Butler, and which at the time of making the deed had not been sold by the executor, and also for all the land which the executor had contracted to sell, but for which lie had not then made deeds. The consideration mentioned in this deed is “the sum of one dollar, and the further consideration that by the last will and testament of said Charles C. Sullivan, deceased, she is the sole devisee, except certain exceptions therein contained.” There were a number of pieces of land, houses and lots which had not then been sold by the executor, and which were therefore included in the general description in this deed, and intended to be convoyed by it. Among them was the piece containing two and three fourths acres, of which the lot in suit is a part. It does not appear that Charles McCandless did anything as executor after this deed was made. The object appears to have been to pass to Mrs. Sullivan the entire estate as it then was, under the belief or supposition that she was personally entitled to it under the will, and that the executor should perform no further duties. Since the making of this deed Mrs. Sullivan has sold or conveyed away all the real estate, which was conveyed or intended to be conveyed to her by it. She testifies that she educated her children by means of the proceeds, but did not pay over any of the proceeds to them. In 1873, Charles A. Sullivan, the eldest son of the testator, took possession of the lot in suit, and before October, 1874, built on it a house, barn and outbuildings, at a cost of between $10,000 and $12,000. The evidence does not show what the contract or arrangement was under which he took possession, but it is evident that he understood that he was to be the owner of it. In October, 1874, just after the house was finished, he moved into it and occupied it with his family as his individual residence from that time until April, 1886. On June 7, 1877, his mother, Mrs. Susan C. Sullivan, made a deed to him for this lot, on which he then resided. The consideration mentioned in this deed is $2,700, but there was in fact no money paid by Charles to his mother for the lot. While Charles A. Sullivan was building the house on this lot, the other four children of the testator were living at home with their mother, in Butler, and knew the fact that he was so building. They knew of his, residing on this property, and the two older ones, Moses and Louisa, and probably all four of them, were at home at the time the deed was made by Mrs. Sullivan to Charles, though they were not consulted about the making of it. At the time this deed was made they were all of age. Matilda, the youngest, became of age in November, 1874. On June 11, 1877, Charles A. Sullivan executed a mortgage of this lot to Andrew C. Taggart, which was recorded the same day. It was given to secure the payment of $5,600 in three years after date, with interest, payable semi-annually. This mortgage was oh June 12, 1877, assigned by Andrew C. Taggart to Louisa P. Mellor, the plaintiff. At the time this mortgage was given and the money received for which it was given, Moses Sullivan, one of the children of Charles C. Sullivan, attended to the matter for his brother, Charles A. Sullivan, received the draft for the money borrowed, knew of the transaction and was an attesting witness to the assignment of the mortgage by Mr. Taggart to the plaintiff. A seire facias was issued on this mortgage to No. 60 June Term 1888, and on December 22,1885, a verdict was rendered in favor of the plaintiff, and on January 8, 1886, a judgment was entered in her favor in the case for $6,623.17. A levari facias was issued on this judgment, and on March 1, 1886, the plaintiff purchased the lot in suit, at the sheriff’s sale under this writ, for $6,500, and received therefor a sheriff’s deed, duly acknowledged on March 3, 1886. This mortgage when it was recorded was the first lien on this lot against Charles A. Sullivan. There was a judgment entered by the Butler Savings Bank against Charles A. Sullivan, Moses Sullivan and Susan C. Sullivan, in the Court of Common Pleas of Butler county, on February 20,1888, for $8,127. On this judgment execution was issued, under which the sheriff sold the property in suit to Kelson P. Peed, the defendant, on September 7, 1885, for $500, and a sheriff’s deed was duly acknowledged and delivered to the defendant, on September 9, 1885. On the same day a quit-claim deed was executed by the several children of Charles C. Sullivan, deceased, including Charles A. Sullivan, for the lot in suit, to Kelson P. Peed, the defendant. This deed was signed by Matilda Duncan (nee Sullivan), but not by her husband, who is living, as it appears. There is no evidence that Andrew C. Taggart or Louisa P. Mellor had any notice or knowledge at the time the money was loaned to Charles A. Sullivan, and the mortgage before mentioned was taken, that he had not paid to his mother any part of the $2,700 consideration money mentioned in the deed from his mother to him. That deed and the record of it contained a receipt by the grantor for the purchase money in full. It was recorded June 6, 1877. It is admitted that the defendant is now in possession of the property in dispute. These are all the facts which are proved by the evidence and believed to be pertinent to the issue. Do they entitle the plaintiff to recover? No doubt the will of Charles C. Sullivan vested the legal title to his real estate in Charles MeCandless, his executor, and so far as the beneficiaries under his will are concerned, it worked an equitable conversion of all his realty into personalty. To this both parties agree ; and here their agreement ends. The plaintiff claims that under the will of Charles C. Sullivan, his wife became the absolute owner in her own right of the proceeds of his entire estate which remained after paying debts, funeral expenses, expenses of administration and other legacies ; and, having taken from the executor a deed for the lands instead of the proceeds, she acquired thereby a title to the lands in her own right, as a purchaser, and had full power to convey them, and hence her deed to Charles A. Sullivan gave him a perfect title, which he could, and did, mortgage. This is the substance of plaintiff’s fourth point. On the other hand, the defendant claims that Mrs. Sullivan was entitled to the proceeds of her husband's estate only as guardian of her children, and not in her own right; and, if she could and did take any title to this lot by means of the deed from Charles McCandless, she took such title as guardian, and by virtue thereof the equitable title to the lot became vested at once in her wards ; and, they then becoming and being the owners of the land, Mrs. Sullivan could not and did not, by her deed tediarles A. Sullivan, vest the title in him. This is the substance of defendant’s second, fifth and sixth points. I am not able to agree entirely to either of these propositions. The plaintiff’s claim is based upon the position that a testamentary guardian is not a guardian of the estates of the minors, but only of their persons ; and that Mrs. Sullivan being guardian only of the persons of her children, could not receive their estates as guardian, and hence the testator in directing that the money should be paid to her could not have meant, to her as guardian of the estates of his children, and therefore must have meant her individually. To this there are two complete answers. The first is the language of the will itself. The direction is to “ pay the proceeds over to my wife, Susan Catharine, to be held by her as guardian of our children.” It is evident from this language, even if it be taken in connection with what immediately follows in the will,, that the testator was not making provision for his wife alone, but for his children. It is immaterial that she is called “guardian.” She might have been called trustee, protector, curator, or any other name which would have expressed the thought that she was to hold for their use. That is the thought which he most certainly intended to express ; and, if it be conceded that she was not and could not be the guardian, in its technical-sense, of her children, yet it remains evident that the money was to be held by her for the use of her children. That being evident, the money when paid to her, could not become her own absolutely, but should have been held for the children under the other directions in the will. The second answer is-that a testamentary guardian is a guardian of the estate of the ward, devised or bequeathed by that testator. The 8th and 9th sections of the statute of 12 Charles II., c. 24, was reported by the judges to be in force in Pennsylvania. The 9th section of that statute has not been supplied or repealed. It enacts. “ that such person or persons to whom the custody of such child or children hath been or shall be so disposed or devised, shall and may take into his or their custody, to the use of such child or children, the profits of all lands, tenements and hereditaments of such child or children ; and also the custody, tuition and management of the goods, chattels and personal estate of such child or children.” See this statute and the decisions under it in Robert’s Digest, 812* to 815*. This is the recognized law in Pennsylvania : Hollingsworth’s Appeal, 51 Pa. 521. The conclusion then is, that Mrs. Sullivan was not entitled to receive in her own right the proceeds of the sale of this real estate, and hence that she had not the right to take the title in her own name and sell it again for her own use. But it does not follow that when she took the deed from Charles McCandless as executor, the equitable title to the lauds vested at once in her children. There is no evidence, and no claim, that when the conveyance was made to her there was any actual purpose on her part or on the part of the executor to defraud the children. The deed was made under the mistaken belief that she was entitled to the proceeds of the sale of the land in her own right. and hence that she could take the land in lieu of its proceeds. If there was fraud in the transaction it was a legal fraud. But whether legal or actual, the result is perhaps not changed by that fact. She had a right to the proceeds of the sale of this land, to be “ used in such judicious manner as she may deem most beneficial to herself and her children.” Now, it might, well be that she might deem that part of the fund could be most judiciously used by investing it in real estate, not for the purpose of acquiring the title to the land for her children, instead of the money, but as an investment, the land to be again sold and the money obtained for the children. I do not mean that she intended to do that, but only that she might have intended it. Our inquiry now is, whether she could invest the money in land, by a purchase, or take land instead of the money, without the equitable title to the land becoming vested in the children. The fact that she took land from the executor instead of the money, would not have any other effect in this case than would have resulted had she received from him the money which she believed to be her own and with it puichased land. If she had done that — had used money which in fact belonged to her wards in purchasing land in her own name and then had learned that it was a misappropriation of the money, it is difficult to see why she could not have resold the land, repossessed herself of the money and thereby righted the wrong she had done. When a trustee purposely buys land with a trust fund which he has no right to use in such a way, and thereby commits an intentional fraud, it does not follow that the title to the land so bought vests, as a matter of law, in the cestui que trust. It is true that if he be sui juris he may elect to take the land, but he may also elect not to take it, and in that case the title remains in the trustee. It is not the fact of the purchase by the trustee fraudulently, but the fact of the election by the cestui que trust that gives him the title. His right is to have the money, and he cannot be deprived of that right, or forced to take land in lieu of the money without his consent, and he cannot have both. That is, he cannot take the land and also compel the trustee to pay him the money. When one pays money for the purpose of buying land, and the title is taken to another, a trust always results, because it is presumed that he who purposely pays for the land intends to own it. But that is not our case. Here the trustee took a conveyance of the land in her own name instead of the trust fund, and there could not be, properly speaking, a resulting trust, but a constructive trust after the cestui que trust should elect to make it such. Between these there is a substantial difference. “ In the former, the trustee will be compelled to execute the trust by a conveyance of the land; in the latter, chancery will raise the money out of the land by a sale of the whole or such part of it as may be necessary to produce the sum withdrawn from the fund.” See opinion of Gibson, J., in Wallace v. Duffield, 2 S. & R. 529. If chancery would raise the money improperly invested by a sale of the land, can it be that the trustee would not be permitted to do the very same thing, particularly if the sale be made before the cestui que trust elects, and hence before the title vests in him ? If it be true that the title to all this land covered by the deed from the executor to Mrs. Sullivan vested, then, in the children, then upon the death of one of them the whole course of descent of the share of the one so dying would have been changed, without the consent of the parties interested. Other arguments' are not lacking, but these are enough to illustrate the line of reasoning which has led me to the conclusion, that no title vested in the children by mere operation of law, and that eo instanti Mrs. Sullivan took the legal title from the executor, -without any act or election on their part, she, as holder of the legal title, could sell the lot and pass a good title to the purchaser, if she sold it for a full valuable consideration, and thus obtain and have the very money which it was her duty to hold and use for the benefit of herself and her children. This conclusion has nothing to do with the question of the liability of the guardian or of the executor to the children, in case they were injured by the transaction. Having concluded that Mrs. Sullivan had acquired the title to, and could sell the lot in controversy, there was no obstacle in the way of her selling to her son. If he had paid full value for the lot, as much as the executor could have realized had he sold it, then the trust fund would not have been diminished, no one would have had cause to complain, and his title would have been perfect. Taking it, as he did, without paying anything, he took it, of course, subject to all the claims which might have been made against it in his mother’s hands. Bxit the fact that he paid nothing cannot affect the plaintiff, because the mortgagee had no notice or knowledge of that fact. There is no evidence, or allegation, that either the mortgagee or the plaintiff knew he had not paid full value. The deed and the record of it showed the consideration paid, and it is not pretended that the consideration expressed in the deed and receipted for, was not the full value of the lot at the time Charles A. Sullivan took possession of it. The trust which might have attached to the title as held by him, because of the want of consideration paid, was a secret one and cannot affect the mortgagee without notice of the trust brought home to him. He and the plaintiff under him stand in the position of purchasers for value. It follows from this that the sheriff’s sale under the mortgage vested in the plaintiff the title which Charles A. Sullivan had, free from the secret trust to which it might have been subject had he continued to own it. , But if these conclusions are all wrong, the case has another aspect, which was not mentioned on the argument, which appears to me to be decisive of the rights of the parties. It is that the limitation contained in the sixth section of the act of April 22, 1856, defeats the defendant’s ease. By that section it is enacted that “ no right of entry shall accrue or action be maintained.....to enforce any implied or resulting trust, as to realty, but within five years after.....such equity or trust accrued with right of entry, unless such.....trust shall have been acknowledged by writing to subsist, by the party to be charged therewith within the same period.” The defence is purely an equitable one, and is based on an alleged implied or resulting trust. The plaintiff shows a title/ which on its face is complete. The defendant says it is defective, because affected by a trust arising from the facts, that the children of Charles C. Sullivan were entitled to the proceeds of the sale of this lot, and that the lot was conveyed to the person who was their guardian, instead of paying to her the money for which it should have been sold, which trust adhered to the lot and the title when it was transferred to Charles A. Sullivan, and still adheres to it; that the defendant is now, by means of the quit-claim deed, the owner of that trust, and the plaintiff cannot recover; that is to say, that the children of Charles C. Sullivan owned the lot, and the defendant now owns if, because their money bought it. Such a trust is within the operation of the statute quoted: Roy v. Townsend, 78 Pa. 329; McNinch v. Trego, 73 Pa. 52; Clark v. Trindle, 52 Pa. 492; Barrett v. Bamber, 81 Pa. 247. Now let it be conceded that the trust existed as is claimed. Charles A. Sullivan went into possession of the lot in 1873. At that time all the cestuis que trust were of age, except Matilda, and she became of age in November, 1874. They all lived in Butler, with their mother, when Charles was building his house. That was their home when Charles moved into his house, and also when he got his deed from his mother on April 7, 1877. The deeds were on record in Butler county. Moses Sullivan, an attorney, had actual knowledge of all this and assisted in securing the loan to his brother Charles and in having the mortgage given to secure it. The other children knew, because they must have known, that Charles was occupying the premises as his own. If they did not know all about the facts, that their mother had taken the title from the executor of their father's will, and had made a deed to Charles without consideration, they could by reasonable diligence have learned these facts before the beginning of the year, 1880. Yet no action is commenced, nothing is done, until September '9, 1883, almost eleven years after the youngest child became of age. Then a quit-claim deed was made to the defendant. Before that deed was made the statute had perfected the title in Charles A. Sullivan, and his mortgagee had a right, and under him the plaintiff has a right, not only to all the title which he had when the mortgage was given, but to all the title which he subsequently acquired. The quit-claim deed did not release or assure any title or claim to the defendant, because at the time the releasors had no valid title ox claim to be released. The fact that Charles A. Sullivan signed that deed can have no effect. He could not by that act prejudice the title he had granted by the mortgage. Neither can the fact that he appears to have surrendered the possession to the defendant on April 1, 1886, as against the then purchaser under the mortgage, avail the defendant. Such acts tend only to raise a suspicion of bad faith on his part and on the part of the defendant towards the plaintiff. The statute of 1856 is equally effective to prevent the enforcement of a trust, whether the party seeking to enforce it be plaintiff or defendant. That point is expressly decided in McNinch v. Trego, 73 Pa. 58. If neither of the positions which I have considered were of avail to the plaintiff, still she would be entitled to recover at least the undivided two fifths of the lot in suit, because Mrs. Sullivan by her deed to Charles, and he by his mortgage to Taggart, conveyed all the estate either legal or equitable which'they had in the premises, and the plaintiff now has that estate ; and because Moses Sullivan is estopped by his knowledge and active assistance in securing the loan and procuring the mortgage to be given, from setting up any claim to the premises as against the mortgage. The several points submitted on behalf of the defendant are specifically answered as follows : * '* ’* * -***•* • 4. The deed of Charles McCandless to Mrs. Sullivan, if intended to constitute her trustee or executrix in his stead, is void for want of power; if to invest her personally with the title, she is not competent to take title in her own right to the children’s — her ward’s estate, adverse to the prejudice of them; such an act is against the policy of the law, and void at the election or option of the wards. Answer : The fourth point is affirmed as good law, but it is not applicable to this case. The children did not have an estate in the land.1 5. If the court find that Mrs. Sullivan could, and did take title to the real estate from Charles McCandless, the executor, she could only take it instead of its “ proceeds,” and in the same right and capacity, to wit: as guardian; and then she could not divest the title of her wards to such real estate without authority of, or approval by the Orphans’ Court. Answer: The fifth point is refused. The title did not become vested in the wards ipso facto, by means of the deed to the guardian.8 6. That the deed of Susan C. Sullivan to Charles A. Sullivan conveyed no title to him which bound its owners, the wards, and they, upon reaching full age, could refuse to ratify such deed and disaffirm it by themselves making deed to N. P. Reed, as they did, and therefore such deed would become of no legal force or effect; if not to all, at least to all except O. A. Sullivan’s grantee. Answer: The sixth point is refused.3 7. The court is requested to find the following facts: . The deed of Charles McCandless to Mrs. Susan Sullivan was not executed pursuant to the directions of the will, nor to convert the real estate into money; that no money was paid or to be paid; that it was without consideration; that it was made merely to enable the executor to retire from the trust, and not to put the title beyond the reach of the children, nor to defraud them, nor prejudice their rights. Answer: The seventh point, so far as it asks for findings of facts, is answered by the findings herein contained.4 8. That C. A. Sullivan paid nothing as consideration to Mrs. Susan Sullivan for his deed; that the other children did not induce the conveyance, nor approve, ratify or adopt it, but on the contrary, repudiate and disavow it. Answer: The eighth point is not a correct statement of fact so far as Moses Sullivan is concerned. As to the other children, their only act of disavowal was their deed to defendant. So far as the evidence shows, all their other conduct was by way of approval.5 10. That the defendant is not required to show good title in himself, but can demand that the plaintiff show title in herself, and the plaintiff has not shown title to enable her to recover more (if that) than the one fifth undivided part. Answer: The tenth point is refused.6 11. That the plaintiff is not an innocent mortgagee nor purchaser, the record being sufficient to put her upon inquiry as to all the facts material to the issue. Answer: The eleventh point is refused.7 15. Under the facts and law the verdict must be in favor of the defendant; if not generally, at any rate for the four fifths of the land in suit. Answer: The fifteenth point is refused.8 16. Precatory Avoids “ desire,” “ will and desire,” “ request.” “wish and request,” “intent,” “recommend,” “hope,” “in the fullest confidence,” “ not doubting,” “ trusting and wholly confiding,” are alone sufficient to raise a trust. Answer: The sixteenth point need not be answered. Whether the words mentioned will raise a trust depends on their connection in the context.9 The conclusion of the court is that the plaintiff is entitled to recover the land described in the praecipe filed in this case, with costs. If no exceptions are filed to this decision within thirty days after notice of the filing of the same is given by the prothonotary to the parties or their attorneys, agreeably to law, then the prothonotarv is directed to enter judgment in favor of the plaintiff and against the defendant for the land described in the praecipe filed, Avith costs of suit. To the foregoing decision the defendant filed various exceptions Avhich, on October 1, 1887, were overruled by the court, and it was ordered that judgment be entered in favor of the plaintiff for the parcel of ground described in the writ, with costs. Thereupon the defendant took this writ, and assigned as error: ■ 1-9. The answers to the defendant’s points.1 to 9
122 Pa. 653In re Heidler (1888)
certiorari to the court of quarter sessions of ALLEGHENY COUNTY. No. 18 October Term 1888, Sup. Ct.; court below, No. 15 March Term 1887, Misc. D. On March 19, 1887, J. S. Heidler presented a petition to the Court of Quarter Sessions, representing : “ That he is a resident of Robinson township, in said county, and is attached for school purposes to the Hughey school district in said Robinson township ; that within tlie past year a school-house has been erected in Stowe township, convenient to your petitioner; that in order to reach said school in Robinson township, your petitioner’s children have to travel one mile and a half over a rough road, but little traveled, and in the winter time unbroken and often impassable for children. In order to reach said school,- they also have to cross Moon Run, by a narrow foot log, and when the stream is swollen it is very dangerous .for children. By reason of the geographical location of your petitioner’s land, it is much more convenient for him to reach the new school lately erected in Stowe township, as aforesaid, and which is known as Sipe school district, the distance thereto being much less than to the m'. ’ Hughey school in Robinson township, and the public road leading thereto being good and not crossing any streams. “ Your petitioner, therefore, prays your honors that his land may be attached to Sipe school district, in Stowe township, for school purposes only, as provided by the act of assembly approved April 17, 1876, and he will ever pray.” Upon this petition, the court appointed three persons as viewers to inquire into the propriety of granting the prayer thereof, and to make report of their proceedings to the next term. On June 6, 1887, the report of the viewers was filed, setting forth that they had viewed the premises and the roads and distances to Hughey school-house in Robinson township, and to Sipe school-house in Stowe township, and found the statements set forth in said petition to be true and correct, and that the viewers were of the opinion that it was “ imminently proper” the prayer of the petitioner should be granted and his land attached to Stowe township for school purposes only. A plot or draft was attached showing the location of the petitioner’s land and the roads leading to the Hughey and Sipe school-houses, respectively. To this report the board of school directors of the district of Stowe township filed exceptions and on October 1, 1887, moved the court to quash the proceedings for the reason, inter alia, that the land of the petitioner which he prayed might be annexed to said school district of Stowe township, did not adjoin said township, as shown by the draft filed.1 On October 10, 1887, the court filed a decree: “ That the report of the viewers be confirmed absolutely and that the land of said J. S. Heidler, situated in Robinson township and described in their proceedings, be annexed to Stowe township for school purposes, and that said Heidler shall pay his school taxes to said township of Stowe and be and remain connected with Robinson township for all other purposes ; and further, that said Heidler pay the costs of this proceeding.” 8 The exceptants then took this writ and specified that the court erred, inter alia : 1. In not sustaining said exceptions.1 2. In entering said order of confirmation.8