123 Pa.

Volume 123 — Pennsylvania State Reports

60 opinions

123 Pa. 1Mellon v. Reed (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 57 October Term 1888, Sup. Ct.; court below, No. 486 October Term 1884, C. P. No. 2. On October 1, 1884, an action of ejectment was brought by Iolia M. Reed and Lavina B. Reed, by their guardian, Michael Dewalt, against Thomas Mellon and W. L. Scott, to recover the undivided one third part of fifty acres of land in Elizabeth township. The defendants’ abstract filed, admitted title in the plaintiffs to the undivided one third of the surface of the land in dispute, and to the undivided one ninth of the coal underlying the same, tendering judgment; as to the residue of the plaintiffs’ claim, they pleaded not guilty. At a former trial of the cause on July 19, 1886, there was a verdict' and judgment for the plaintiffs. The judgment was reversed on writ of error to No. 208 October Term 1886, and a venire facias de novo awarded : Mellon v. Reed, 114 Pa. 647. At a second trial on January 8,1888, the plaintiffs’ case was in substance as follows: Llewellyn Howell, Sr., died in 1828, seised of a tract of about 260 acres, including the land in dispute, and leaving1 a widow, Mary, and eight children, to wit: Esther, who married a Hindman, Martha and Sarah who married Armstrongs, and John, Llewellyn, Andrew, Philip and James. By his will, admitted to probate September 2, 1823, it was provided: “ And after all my just debts is paid, I devise and bequeath unto my loving wife Mary all my household furniture, likewise .as likewise the use of the farm until my son James arrives at the age of twenty-one years, except such property as has been named to my children yet at home by me, at which time the place is to be sold by my executors, and the two thirds of the proceeds to be equally divided to and amongst my heirs, and the one third to be at interest for the use of my said wife. But if in the . opinion of my said wife such sale would be prejudicial to her interest she may detain the sale and possess the land by paying two thirds of the rent as long as she sees cause, or during widowhood. But if she should marry she is to have an equal part with one of the children. All the surplus property which will be remaining at the death of my said wife to be sold and the proceeds equally divided to and amongst iny children, together with the proceeds of the land when sold, except what of my children as have gotten property, which is to be considered out of their part.” The tract of land thus devised, which included the land in dispute, was not sold as directed by the will. The widow and children, except Andrew who had married and removed to West Newton, all lived together upon the farm until 1834 or 1835, when James became of age, married and removed to a farm by himself. In 1840 or 1841, John, Philip and Llewellyn, as was claimed by the plaintiffs, bought in the interests of James and of the other heirs in their father’s estate, and then or soon afterward made a parol partition of the land among themselves, whereby about 129 acres, embracing the land, in dispute, was set off by marked lines to Llewellyn Howell, and the remainder to Philip and John. To establish this purchase by John, Philip and Llewellyn, and the parol partition between them, the plaintiffs called Andrew Howell, one of the brothers, Daniel Kiehl, James S. Patterson, and other witnesses, who testified to declarations made by James admitting the sale of his interest, to the making of the division lines, and to possession taken and continued thereafter by the several parties. The testimony of the witnesses referred to, as evidence of a sale and transfer of James Howell’s interest, was objected to by the defendants as incompetent and irrelevant. The objections were overruled, and the testimony admitted.30 11 Llewellyn Howell, Jr., remained in possession of the land set off to him until his death in 1851, his mother then living with him. By his will, admitted to probate on February 0, 1851, he provided as follows: “ I will and bequeath unto my brother, Andrew Howell, the undivided one half part of the farm whereon I now reside, embracing and including the buildings, for and during his natural life, subject to the payment of the hereinafter bequests, and subject to mother’s dower; and then, T will and devise the same unto his children, them, their heirs and assigns, but in case he, the said Andrew Howell, should die without issue, then, in that case, I will and devise the same unto my brother John Howell’s children, to them, their heirs, and assigns, share and share alike. I will and bequeath unto my brother, James Howell, the undivided north half of the farm whereon I now reside, embracing and including the mill property, for and during his natural life, subject to the payment of the hereinafter named bequests, and also subject to mother’s dower, and at his death I will and devise the same unto his children, them, their heirs, and assigns, share and share alike.” Mary Howell, the mother, died about 1858. James Howell, the brother, died in 1880, leaving to survive him two children, Mary Howell and James R. Howell, and two grandchildren, Iolia M. and Lavina Reed, the plaintiffs in this suit, the children of a deceased daughter, Rachel Reed. The plaintiffs having rested, testimony was introduced by the defendants, from which it was claimed that, after the deaths of both Llewellyn and their mother, John Howell took possession of the 129 acre farm which had been occupied by them, having purchased or contracted for the shares of all the heirs then interested, except of James and Andrew. In 1856 James and Andrew brought ejectment against John for the recovery of the land thus taken possession of. Before the trial Andrew sold his interest in the land claimed to John, and the cause went to trial by James alone against John. By agreement of the parties, hi open court, a verdict was returned, awarding 50 acres of the land by metes and bounds to James, and giving to John 79 acres thereof.' This 50 acre parcel is the land in dispute. In 1866, James Howell conveyed two undivided one third parts of all the coal under the said 50 acres of which he was then in possession, to Thomas Mellon in fee. In February and March, 1879, James Howell’s two children, James R. and Mary, conveyed their interests in the entire 50 acres, surface and coal, to Thomas Mellon, in fee, and subsequently said Mellon sold and conveyed the coal underlying the tract to W. L. Scott, — these conveyances, as claimed by the defendants, leaving the heirs of Rachel Reed, the plaintiffs, entitled to one third of the surface and but one ninth of the coal thereunder. The court, White, J., after reviewing the evidence, charged the jury orally as follows : Now the first question is: Did James sell out his interest in his father’s estate to his brother Llewellyn? You have the testimony, I believe, of two or three witnesses to his declarations that he had sold it. Andrew Howell, I think, testified that James told him what he had got: a wagon and horses and things of that kind when he started farming, about $500 J think, but the jury will recollect the testimony, not take it from me. That would be in 1835 or 1836. Mr. Patterson testified that he said to him that he had got about $500, or had sold out for $500, or some expression of that kind. James had a perfecttright to sell out his interest. Any of the children at any time could sell their interest in their father’s estate. James of course could not do it while he was a minor, but as soon as he came of age he eorrld sell his interest in his father’s estate to his brother Llewellyn; and if he did so and got the full consideration for it, he could not afterwards claim the land under his lather’s will. [The will of the father directed the property to be converted into money as soon as James came of age. That is what is called in law a conversion from realty into personalty, and any heir that is entitled to a legacy or a division of money in the estate of the father can sell it or release it. It does not require a formal deed to do that, as this, under the will, was personalty — that is, money — -because under the will it was to be sold when' James came of age. He had a right to have it sold and to get his share of the money, unless his mother interfered to prevent it; or, he could sell out his portion under his father’s will to one of his brothers, and if he did so and got the money in pursuance of such sale, then he relinquished all claim under his father’s will and could not after-wards claim a portion of the land, whether he made a deed for it at the time he got the money or not.] 13 Where land is loft in this way, the heirs or legatees may elect to take it as land instead of money. It would seem, if you believe the testimony, that the three brothers, John, Philip and Llewellyn, claim to have bought the whole property, the farm of 260 acres, from the other heirs, and agreed to divide the land among themselves. They could not do that without the consent of their mother, because their mother had a right to her dower in it, and really to manage it while she chose to do so, paying over two thirds of the rents and profits to them. But if these three brothers had the whole interest of all the brothers and the sisters, they could say “We will not require this land to be sold, but we will divide it as land among ourselves; ” and if in pursuance of that they divided it among themselves and each went into possession of his portion and retained it, using it as his own for a number of years and improving it as such, it would be a binding arrangement and partition between them which neither one could oppose. * * * * * *- * To repeat: When James came of age he could sell out his interest in his father’s estate to his brother Llewellyn, and if he did sell it and got the money for his interest, and after that the three brothers having bought out all the other heirs and agreed to take the land as land and divide it among themselves and so did, then James had no further interest in the land of his father’s estate. It is a question of fact for you, gentlemen of the jury, whether James did sell out his interest in his father’s estate. If he did, and if John, Philip and Llewellyn bought out all the other heirs, then they had a right to make a parol partition between them, that is, a partition not in writing ; and if these three brothers did divide the 260 acres into two parts, James taking one and John and Philip taking the other, and if in pursuance of the parol arrangement between themselves each went into possession of his own part, and they settled and marked a line between them and each retained and improved his own part for years afterwards, that would be a binding partition between the three brothers that neither one could break up or destroy. If such were the facts in the case, then in 1851, when Llewellyn died, he had a perfect fee-simple title to the 129 acres that he died seised of, and he had a right to will it to whom he pleased. He did will it to Andrew and James for their lives, and at their death to go to their children. That would simply give James and Andrew a life estate, and under that life estate James would have no right to sell the coal or any part of it. Now we come to the action of ejectment in 1856. As I have said, Llewellyn died in 1851, leaving the will which I have referred to; and I would infer that John and some other parties in some way got possession of the portion that Llewellyn had died seised of, because we find Andrew and James, the two devisees in Llewellyn’s will, bringing that action of ejectment against them in 1856, some four or five years after Llewellyn’s death. The mother had lived probably two years alter Llewellyn’s death, and it was three years after her death when that action of ejectment was brought. For what purpose was that brought ? Was that action of ejectment to recover James’ undivided interest in his father’s farm, or was it simply to recover the portion that Llewellyn had died seised of and held in severalty ? [It would seem from some deeds in evidence that after Llewellyn’s death in 1851, John got some releases from some of the other heirs, but that no releases had ever been executed by any of the heirs until after Llewellyn’s death in 1851.] 13 At all events, in 1856 John and some of the other parties seem to have been in possession of this tract of land. The praecipe and verdict in the case strike me as pretty strong eAÚdenoe that that action was not brought to recover any undivided interest that James or Andrew had in their father’s estate. If they had an interest it would be an undivided interest in the 260 acres. They would not be entitled, as heirs under their father’s will, to any portion of it to the exclusion of the other heirs, even of John and Philip. They could go into the Orphans’ Court and ask for a partition, alleging that their father died in 1828, alleging the number of acres there were in the farm, their father’s will, and that under it they were each entitled to one eighth. But in 1856 they brought this action of ejectment for the 129 acres that Llewellyn had lived on and died seised of in severalty, so described in the praecipe which gives also the boundaries of the 129 acre tract, bounding it on one side by land of John Howell, the other brother. It is true that that is not conclusive on the subject, especially under the verdict that was rendered in that ease, but to my mind it is pretty strong evidence, as I said, that that action of ejectment was not brought to recover any undivided interest in the whole farm of 260 acres. The verdict was entered by consent of the parties in interest, and the form of the verdict is such that it would not probably have been received by the court, unless it had been agreed upon by the parties. If Andrew and James were entitled to the 129 acre tract under the will of Llewellyn, each one was entitled to one half of it, because the will provided that one half should go to James and one half to Andrew. The verdict, however, sets apart 50 acres to James and the balance to the defendants. That seems to cut out Andrew entirely; but I think Andrew’s testimony explains that, that after the suit was brought he compromised with John, so that in that way nothing but James’ interest was left to be determined. The verdict reads, “And we find for the plaintiff, James Howell, 50. acres to be run off the northern part of the land.described in the writ as follows; ” then it goes on to describe it and provides that he shall pay certain legacies in the will of Llewellyn Howell, and that he shall release to John the rest of the ground, and then finds for the defendants for the balance of the tract of land. I say, therefore, that it seems to me that this action of ejectment was brought to recover that tract of land that Llewellyn had obtained by the partition between him and his two brothers, John and Philip, and whicli he had willed to his two brothers, Andrew and James, for life, and to their children; and Andrew and James having a life estate would be entitled to bring their action of ejectment to recover possession. [I make the further remark here, bearing on the question of whether Mr. Mellon had notice of this title or not: the purchaser of land must always be on his guard. It is true that when there are some latent equities or some title not of record, he may be able to defeat parties setting up such an equity or such a latent title, but whenever the purchaser has notice or something that will put him upon inquiry and he buys under such circumstances, he buys at his peril.] 13 Now, it seems to me that Judge Mellon would examine the title of James Howell. What title had James Howell? There was no deed on record to James Howell. There was the will of his father in 1828, and this was in 1856, some 33 years after his father’s death. The will provided that the property was not to be sold until James came of age. This was more than twenty years after he came of age. I am speaking of the action of ejectment. In the first place, the praecipe setting forth and claiming possession of 129 acres, not an undivided interest in 260 acres, but claiming absolutely the 129 acres; and then the verdict referring to the will of Llewellyn Howell and the paying of certain legacies under it, seems to me to be enough to put the purchaser upon inquiry, and if he found out afterwards that James Howell had not a good fee-simple title he would have no ground of complaint. If, then, gentlemen of the jury, you find that James Howell did sell out Ms interest in Ms father’s estate to Ms brother Llewellyn about the time he got married, and that the three brothers, John, Philip and Andrew, bought out the other heirs and then did make a partition between themselves of the land, and that Llewellyn got this portion and kept it for a number of years as his own, John and PMlip living on the other portion, and that Llewellyn died in possession of it, then Llewellyn had a perfectly good title, in fee simple, to that property, clear of any claim on the part of any of his brothers or sisters. And if you find that the action of ejectment in 1856 was for the . recovery of that very land that Llewellyn thus held and willed to his brothers, then your verdict ought to be for the plaintiffs for the one third of the land and the one third of the coal. If, however, you find that James never did sell his interest to his brother, and that the action of ejectment of 1856 was to recover his interest in Ms father’s estate as well as what he was entitled to under his brother’s will, then the verdict should be for the plaintiffs for only the one ninth of the coal. One tMrd of the land is still admitted to belong to the plaintiffs. The controversy really is simply as to the coal: whether the plaintiffs are entitled to one third or one ninth of the coal. The defendants’ points are answered as follows: 1. Under the will of Llewellyn, Sr., his widow Mary had the right to possession and control of the farm, and there is no sufficient evidence to show that she ever lost that right or abandoned it and did not continue to hold the northern part of the farm under it till the time of her death. Answer: The first part of the point is affirmed. But whether John, Philip and Llewellyn bought out the interests of the other heirs, and with the consent of the mother elected to take the farm as land, and made an amicable partition, is a question of fact under the evidence for the jury.1 2. At the date of the deed in fee to Mellon for two thirds the coal underlying the 50 acres set apart to James, pursuant to agreement in ejectment, the evidence shows a complete record title in John Howell for thirteen sixteenths, and in James for tMee sixteenths of the whole farm of their father ; a partition between them by a consentible verdict and judgment and releases in accordance with these their interests; and possession taken by James of tbe land in question allotted to him under said judgment, and that possession continued till the time of his death, and claiming to hold and dispose of two thirds thereof in fee. Answer: Refused.3 8. The legal inference from the verdict and judgment and releases in pursuance thereof in evidence, is that John’s thirteen sixteenths and James’ three sixteenths in the whole farm was relegated to and limited in the parts awarded to each respectively, by the verdict and judgment aforesaid. Answer: Refused.3 4. The uncontroverted evidence shows Mellon, and Scott holding under him, to be bona fide purchasers for value without notice, either direct or constructive, of the parol title set up by the plaintiffs. Answer: Refused.4 5. The plaintiffs have failed to show title from James to Llewellyn Howell, such as would affect the defendants. Answer: Refused.5 6. Plaintiffs’ evidence fails to show such title as would affect defendants as regards James Howell’s one eighth part in the father’s farm in fee under his father’s will. Answer: Refused.6 7. The evidence of parol partition as between Llewellyn, John and Philip, was inter alios acta as to James, and it and the evidence of loose and uncertain declarations by James of a parol sale to Llewellyn, Jr., is wholly inadequate to take the case out of the statute of frauds, or to affect defendants’ title; the plaintiffs are therefore entitled to recover only under their record title, viz.: one third part of the surface and one ninth part of the coal. Answer: Refused.7 8. The deeds of the five heirs who conveyed to John are not impeached for fraud, and the loose declarations of James or others, not made at the execution of those or of his own deed to Mellon, or brought to Mellon’s knowledge, cannot avoid or set them aside. , Answer: Refused.8 9. The verdict and judgment in evidence are essential to the title in severalty in James for the coal he conveyed to Mellon; and the deeds of the other five heirs who conveyed to John are essential to the maintenance of that verdict and judgment; and such a paper title on record cannot be set aside by parol evidence of the quality here presented. Answer: lief used.9 10. The plaintiffs’ claim to any more than one ninth the coal and one third the surface depends on setting aside these deeds by an alleged prior parol sale or agreement to sell to Llewellyn. Answer: Refused. If you find for the plaintiffs you will find the one third undivided interest in the property described in the writ, including one third of the coal. If you find for the defendants, you will find for the plaintiffs the one third undivided interest of the surface and the one ninth undivided interest of the coal. The verdict returned was for the plaintiffs “ for the undivided one third of the coal and surface described in the writ, with six cents damages and costs.” Judgment having been entered upon the verdict, the defendant took this writ assigning as error: 1-9. The answers to the defendants’ points.1 to 9 10, 11. The admission of plaintiffs’ offers.10 11 12. The parts of the charge embraced in [ ]18 1. From the opinions in Mellon v. Reed, 114 Pa. 647, and Bailey v. Allegheny N. Bank, 104 Pa. 425, and the authorities on which they are based, we take the law to be that land devised to executors or conveyed to trustees to be sold for distribution among beneficiaries, becomes personalty only for distribution among the beneficiaries and their representatives, but never loses its legal attributes, as to transfer of title. The statute of frauds does not apply to the proceeds either before or after conversion, but it does apply to the land. The legal title remains in the executors or trustees until they transfer it to the vendee, or until the facts raised the presumption that the beneficiaries had elected to take the land instead of the money. The law then vests the title in the beneficiaries and their vendees, by reason of the implied execution of the' trust, and relates back to tbe institution of the trust, leaving no hiatus for the existence of personalty. Hence, the statute of frauds attaches to the land all the time. In the present ease, no conversion ever took place. The power to convert was optional and conditional, which worked no conversion, and all parties in interest elected to take the land instead of money from first to last. 2. The deeds of the three sisters and of Philip and Andrew to John, are material as the foundation for the settlement and partition made between James and John in the ejectment of 1856. Statements of James that he had sold to Llewellyn were admitted to invalidate his deed to Mellon. Such testimony is insufficient to set aside a vested record title where the interests of third parties have intervened: Jackson v. Payne, 114 Pa. 67. Moreover, it is settled beyond controversy that the transfer by one tenant in common to his co-tenant of his interest in land, comes directly within the statute of frauds: Gal-breath v. Galbreath, 5 W. 146; Brawdy v. Brawdy, 7 Pa. 161; Christy v. Barnhart, 14 Pa. 262; Arnold v. Cessna, 25 Pa. 48; Workman v. Guthrie, 29 Pa. 495. Positive power to sell in a will works a conversion for purposes of distribution, but even then the share of a distributee can be mortgaged: Bailey v. Allegheny N. Bank, 104 Pa. 425. To effect the conversion of land into money, under the terms of a will, the power to sell must be absolute and unconditional: Stoner v. Zimmerman, 21 Pa. 394; Henry v. McCloskey, 9 W. 145; Bleight v. M. & M. Bank, 10 Pa. 182. 3. But call this land personalty; still, when Mellon purchased and paid for two thirds of the coal, there was nothing to show that Llewellyn’s prior possession of it was in pursuance of a purchase from his brothers and sisters. That possession was consistent with the domestic relations of the parties, and with the paper or record title of the parties as theretofore existing. Whether regarded as a piece of furniture or a chose in action, there was no such change of possession or other indications as would bring notice home to Mellon that the sisters and brothers had sold to Llewellyn before they sold to John: Hendrickson’s App., 24 Pa. 363; Wetherill’s App., 3 Gr. 281; Mellon’s App., 96 Pa. 475. 1. The evidence showed, first of all, the seisin in fee by Llewellyn Howell, Sr., at the time of his death, of a tract embracing the land in controversy, and a disposition of the same by a will which gave none of his children any estate in or title to the land as such, but which required an agreement on the part of all interested in the proceeds thereof, under the will, to waive the sale thereof directed by the will, and take the land itself in lieu of its proceeds, before any title to the land could be acquired. No evidence of any such agreement or election by all the children of Llewellyn Howell, Sr., appeared in the case. The evidence did show a sale and disposal of their respective interests in their father’s estate by five of the children to the other three, namely, to Llewellyn, John and Philip; valuable improvements made on the land thereafter by these three brothers, followed by a partition thereof; a tenure thereafter by them of their respective purparts as their own properties and further valuable improvements made; the death of Llewellyn about fourteen years after the partition, seised in severalty of his allotment, which comprised one half of the original tract and included the land in controversy ; and the devise by the said Llewellyn Howell, Jr., by a will duly probated and of record in the proper office, of a part of his land, embracing the land in controversy, to his brother James (under whom defendants below claimed title) for his life only, and the remainder in fee to his children, as the heirs of one of whom the plaintiffs below claimed title. 2. As to the fourth specification of error, which alleges error in the court’s refusal to charge that “ the uncontroverted evidence shows Mellon, and Scott holding under him, to be bona fide purchasers for value without notice, either direct or constructive, of the parol title set up by the plaintiffs,” it may be sufficient to say, that at the time Mellon negotiated with James Howell and took a deed from him for an interest in the coal, James had no record title except that shown by the will of Llewellyn Howell, Jr.; the will of his father gave him no title to any interest in the land as such, and there had been no election in which he had concurred to take the land. Moreover, the title of the plaintiffs below was not a parol title: the will of Llewellyn Howell, Jr., was a matter of record and directed attention to the title vested in him in his lifetime and at the time of his death, and of which his long possession of the land was notice to all the world.
123 Pa. 19Gillespie Tool Co. v. Wilson (1888)
GRliOIi TO THE COURT OF COMMON PLEAS NO. 2 OF ALLEGUEN: COTJNTV. No. 80 October Term 1888, October Term 1885, C. P. No. 2. On September 7, 1885, a summons in assumpsit was served an action by the Gillespie Tool Company against R. J. Wilson and Geo. E. Tener, partners as Wilson & Tener. The affidavit of claim averred an indebtedness of defendants to the plaintiff in the sum of $6,353.50, less a credit of $1,855.20, with interest on the amount due from July 1, 1885, “being the amount due for work done and materials furnished in and about the drilling of a gas well, as per bill of items hereto annexed and made part hereof, which bill of items is a true copy as taken from plaintiff’s books of original entry. Affiant further avers that the said work was done and materials furnished in pursuance and in fulfilment of a certain contract entered into between plaintiff and defendants on July 24,1883, a true copy of which contract is hereto annexed and made part hereof; and that said well so contracted for has been fully completed in accordance with said contract or agreement.” The defence made by the was non-performance of the contract referred to. At the trial on December 6, 1887, the plaintiff an accepted proposition in writing dated July 24, 1883, to erect for the defendants upon the Risher farm a first class derrick, complete with rig-irons and connections, for $450, and to drill therewith a well “ 2000 feet deep, at the rate of $1.50 per foot, the hole, to be eight inches in diameter, to shut off fresh water, providing the depth does not exceed 400 feet; after the fresh water is shut off, the hole is to be five and five eighths inches diameter, but if salt water is found, we are to draw the casing and ream the hole down to eight inches diameter, and shut off the salt water; for this reaming you are to pay us at the rate of $1.50 per foot extra.” Evidence was then introduced showing that a derrick was erected upon a designated location, drilling begun on October 2, 1888, and continued thereafter until November 8, 1888, when the bit broke in the hole, then between 700 and 800 feet deep. Further drilling was delayed by a resulting “fishing job” until April 4, 1884. Drilling was then resumed and continued to a depth of between 1500 and 1600 feet, when in July, 1884, the cable parted, leaving the entire string of tools in the well. All known methods were employed to recover the tools until November 8, 1884, when the well was abandoned. The plaintiff then shifted the derrick twelve feet from the abandoned well and on December 11, 1884, commenced drilling a new one. On November 5, 1884, the plaintiff’s bookkeeper had a conversation with defendant Wilson about the renewal of a noto given by defendants to plaintiff, on account of work done on the well, and Wilson was then informed that the first well had been abandoned and that the derrick was about to be moved to begin a new one, and made no objections. When the renewal note matured in February, 1885, it was allowed to be protested for non-payment. Afterwards the following notice was served upon the plaintiff: To the Gillespie Tool Co. : You are hereby notified that you are now drilling a well upon our property, without either our authority or consent, and that we will not pay for the same. If you continue, you do so entirely at your own risk and expense, as the same will not be accepted or paid for by us. Your contract with us was to drill and complete the first hole only, and do it promptly, which you have failed to do. We will hold you liable for the failure, and ask you to refund the money advanced on account of the same. WilsgN & TENER. Pittsburgh, February 16, 1885. At the date of this notice, the second well had been drilled to the depth of about 800 feet, and was of the diameter required by the contract. The plaintiff proceeded, however, with the drilling and in June, 1885, the well was of the depth of 2204 feet. When at the depth of 1729 feet, however, a flow of salt water had been reached, to case off which the hofe was reduced to admit of casing of four and one quarter inch size, reaching to the surface. J. M. Guffy, an experienced gas and oil producer, called: By plaintiff’s counsel: We propose to ask Mr. Guffy and other witnesses of similar practical experience in the same line the following question: A test well is to be drilled for oil or gas in undeveloped territory to the depth of 2000 feet; an eight inch hole is drilled 940 feet deep, passing through the water veins usually found in the developed territory, and it is cased to that depth. From that point it is drilled five and five eighths inches in diameter until it has reach a depth of 1729 feet from the surface, when salt water veins such as are unusual in previously developed territory are struck, and continue to be struck until the well has been drilled to a depth of 1822 feet from the surface. It is then cased with four and one quarter inch casing from the surface down to the depth of 1822 feet, where the salt water veins have all been passed. Assuming these facts, state whether or not substantially the same results would be reached in testing territory for oil or gas, as if the hole had been drilled five and five eighths inches in diameter below the depth of 1822 feet ? Objected to as incompetent and irrelevant, and further that the question assumes facts not shown to exist in this case. By the court: The offer is to prove substantially that the well is as good as if it had been bored out the required diameter. The question is not whether it will answer as well, but whether it is a substantial fulfilment of the contract. Objection sustained.3 Q. Assuming the facts above stated, state whether or not it would be good operating, in the drilling of a test well, to drill the remaining portion of the 2000 feet with a four inch bit or auger? Objected to as before. By the court: Objection sustained.4 Q. Assuming the above facts to be true, state whether or not in case of obtaining gas, the same could be practically used as well from a four inch hole as from a five and five eighths inch hole. Objected to as incompetent and irrelevant. By the court: Objection sustained.0 At the close of the plaintiff’s testimony, on motion, the court directed the entry of a judgment of compulsory nonsuit, with leave, etc.; eo die, motion, etc. On March 8, 1888, the court, White, J., filed the following opinion and decree: The plaintiff claims substantial performance. In two particulars it was clearly not according to the plain terms of the contract. (1) The contract required the well to be reamed out to 8 inch diameter below salt water, so as to admit a casing of five and five eighths inch diameter in the clear. It required the well to be thus reamed out from 940 to 1820 feet. (2) At the bottom, for 180 or 200 feet, the well was only four or four and one fourth inches in diameter instead of five and five eighths inches. It is not pretended that there was any serious obstacle or difficulty in completing the well strictly in accordance with the contract. Mr. Reese, the driller, and others, show that it would only have required more time and expense. It is also a patent fact, as well as proven by Mr. Guffy, that a four and one quarter inch well would not produce as much gas as a five and five eighths inch well. The plaintiff, however, replies that the defendants have no good ground of complaint: (1) Because the four and one fourth inch hole tested the territory as well as a five and five eighths inch hole would have done; and (2) that reaming out the well to the depth of 1820 feet would only have subjected the defendants to further expense and further loss, as the experiment proved it was not gas territory. Whatever weight these considerations may have in a compromise settlement between the parties, I think they are not sufficient to determine the legal questions involved. They do not prove substantial performance of contract; they simply amount to this: — true, the well is not according to our contract, but as the matter turned out you ought not to complain, because it tested the territory, and at a less expense to you than if we had completed it according to the contract. In opposition to this stands the contract, in plain, unmistakable terms. It says nothing about a test well. No doubt the defendants expected to get gas, and made their contract in view of it. The plaintiff agreed to sink a well of the definite, specific diameter and depth required. They could have done so, but did not. If they wilfully neglected to do so, they have no legal claim upon defendants for their pay. The plaintiff company also had notice of trouble winch should have made it very careful to comply with the exact terms of the contract. The written notice of February. 6, 1885, said:. After this most emphatic notice the plaintiff proceeded at its peril. After completing a well admittedly not in confor- , mity with the contract, it can hardly say, “ Well, this proves there was no gas there, therefore pay for it.” Motion to take off nonsuit refused.' The plaintiff then took this writ and assigned as error: 1. The entry of the judgment of compulsory nonsuit. 2. The refusal to vacate said judgment. 3-5. The refusal of plaintiff’s offers.3 40 5 1. No one pretends that a party is bound to accept or pay for work unsuitable for the purpose intended, but when the work done is suitable, and the variations from the specifications are immaterial or slight, it is settled that it must be paid for, subject to such deductions from the contract price as may be reasonably necessary to enable the other party to have the work done strictly in conformity with the contract, if he so desire and it be possible to have it so done. If in this case, the results of drilling the well as it was drilled were substantially the same as if it had been drilled in strict accordance with the contract, that would be strong evidence of substantial performance : Tilton v. Miller, 66 Pa. 388. And if the work as done, was in the line of good operating; if it was a good job, adapted to the purpose in view, though not strictly according to the specifications, the plaintiff was entitled to recover, subject to a reasonable deduction, if any deduction could be reasonable under the circumstances. The well proved to be a useless venture, utterly useless for any purpose; it would have been precisely the same if it had been drilled strictly according to contract. 2. Proof of substantial performance sustains an averment of performance: Preston v. Finney, 2 W. & S. 54; Hall v. Rupley, 10 Pa. 281. The question of substantial performance, under the facts and circumstances in evidence in this case, was for the jury and not for the court: Anderson v. Meislahn, 12 Daly (N. Y.) 149; Rose v. O’Reiley, 111 Mass. 57; Danville Bridge Co. v. Pomroy & Colony, 15 Pa. 151; Albert v. Frick, 1 Penny. 182; Ligget v. Smith, 8 W. 881; Truesdale v. Watts, 12 Pa. 78 ; Snodgrass v. Gavit, 28 Pa. 221; Miller v. Phillips, 81 Pa. 218; Wade v. Haycock, 25 Pa. 382; Woodward v. Fuller, 80 N. Y. 312; Phillips v. Gallant, 62 N. Y. 264; Nolan v. Whitney, 88 N. Y. 648; Johnson v. DePeysted, 50 N. Y. 666; Glaeius v. Black, 50 N. Y. 153. The doctrine of substantial performance is essentially an equitable one and the burden is undoubtedly upon him who invokes it to show a case which entitles him to its protection. “ If there has been no wilful departure from the terms of the contract, or omission in essential points, and the laborer has honestly and faithfully performed the contract in all its material and substantial particulars, he will not be held to have forfeited his right to remuneration by reason of mere technical, inadvertent or unimportant omissions or defects: ” Sinclair v. Talmadge, 35 Barb. 602. But if a man contracts for a well of a particular description, and the company with which he contracts deliberately, without his consent, sees fit to put down a well of a different description, why should the courts regard the case of the company as one of hardship? In this case there was a wilful departure by the plaintiff from the terms of the contract. That fact alone entitles the defendants to stand upon the letter of the bond.
123 Pa. 27Dunlap v. Montgomery (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 2 OK ALLEGHENY COUNTY. No. 94 October Term 1888, Sup. Ct.; court below, No. 291 January Term 1887, C. P. No. 2. On December 9,1886, an action in assumpsit was brought by Susan P. Montgomery, executrix of the will of John Montgomery, deceased, against John Dunlap. Issue. At the trial on January 26, 1888, the undisputed facts in evidence were these: For many years John Montgomery, the plaintiff’s testator, had been in the employ of John Dunlap, the defendant, who was engaged in the manufacture of tinware. On February 26, 1875, a contract was executed containing the following provisions : “I, John Montgomery, hereby agree to continue my services with John Dunlap during the current year of 1875, and from year to year, on the same conditions as heretofore, namely: 10 per cent of the net profits, to be ascertained at the expiration thereof, except by death of either party, or a separation should take place during said time (which separation either party shall have the option to accomplish by a written service of notice thirty (30) days in advance), in which contingency or case my rate of compensation for the expired time of the year to be at the pro rated sum of two thousand dollars per annum, which, when paid, will be in full and in lieu of the 10 per cent. In case the 10 per cent of the net profits shall fall below fifteen hundred dollars, I am to be paid fifteen hundred dollars in full for that particular year.” On February 12, 1881, Mr. Montgomery, still in the service of the defendant, left the store in illness, and went to his home where he remained until he died on April 25, 1881. His salary had been paid in full up to January 1, 1881, at $1,500, as evidenced by his own entries in the defendant’s books. The contract referred to was found by his executrix among his papers, after his death. When the plaintiff had received her letters testamentary, she called upon the defendant to ascertain the balance due to her husband and was paid by the defendant a sum representing the unpaid compensation up to February 12, 1881, at the rate of $1,500 per annum. This suit was brought to recover the balance at the rate of $2,000 per annum, claim being made for payment to April 25,1881. Montgomery being dead, the - testimony of the defendant was excluded, but upon the testimony as adduced, two controversies arose: 1. Was the agreement of February 26, 1875, in force for the year 1881, or, had it been abrogated ? 2. Was the salary to be paid for the period after o February 12, 1881, while Mr. Montgomery was confined to his house by the illness resulting in his death ? The court, Magee, J., charged the jury, orally, as follows : The defendant, by his counsel, asks the court to instruct you upon certain points of law which I shall read and answer: 1. The burden of proof is on the plaintiff to make out .a case, and unless the jury believe that it has been shown by the fair preponderance of the evidence that the article of agreement of February 26, 1875, was still in effect on January 1, 1881, the plaintiff cannot recover. Answer: Affirmed. 2. That if the jury find that said article of agreement was in full force and effect on January 1, 1881, the plaintiff is only entitled to recover John Montgomery’s salary from that date till the day he left Mr. Dunlap’s employment, and a credit must be allowed for all money that the jury find was paid by Mr. Dunlap on account of Montgomery’s salary for 1881. Answer: Affirmed, as I understand its meaning to be: That upon the termination of the employment or contract between the parties, the salary or compensation ceased, and that credit must be given for payments made.5 3. If the jury believe from the evidence that Mr. Dunlap paid to the plaintiff and to John Montgomery, deceased, the sum of $186.79 on account of his salary for the year 1881, and that Montgomery went home sick on February 12, 1881, and performed no services for defendant after that time, and said sum was full payment to that date at the rate of $1,500 a year, then the verdict should be for the defendant. Answer: This point is refused. Under all the evidence you will have to determine the question of the indebtedness between the parties at the date of the death of Mr. Montgomery. 4. The mere fact that the article of agreement of February, 1875, was found among Mr. Montgomery’s papers, and that he was at the time of his death in Mr. Dunlap’s employment, is no evidence that said agreement was still in force between the parties. Answer: This point is refused.* This is an action by the executrix of John Montgomery, deceased, against John Dunlap, to recover what is alleged to be due as a salary for services rendered to the defendant by John Montgomery, under an agreement in writing between John Montgomery and John Dunlap. The agreement has been offered in evidence and it is upon that agreement that plaintiff’s claim is based. .You will observe that it is an annual salary to be paid, and tbat it was to be ten per cent upon the profits of the business. The amount of salary was to be calculated upon the amount of profits of the business, and if this percentage did not amount at the end of the year (and that was the only time that the amount of profit could be ascertained), to the sum of fifteen hundred dollars, he was to be paid at least that much; in other words his salary was not to be less than fifteen hundred dollars. [The. agreement provides that in case of death or termination of the contract by thirty days’ written notice (or they could agree upon a termination of it), as it would be impossible-to ascertain what the profits at the rate of ten per cent would be at the end of a year, the service not having been rendered, they have agreed in the article that in case of death, or other termination of the contract, the compensation should be at the -rate of two thousand dollars per annum; they have adjusted that among themselves, and the question is, whether or not the salary is to run from January 1, 1881, until the time of his death. It is admitted, as I understand the testimony, that the salary or any claim on the part of Mr. Montgomery is settled and paid up to January 1, 1881. If there is anything in the evidence to indicate that that agreement was not in force at all at. the time of his death, but that a subsequent agreement at the fixed rate of fifteen hundred dollars a year was in force, you will be able to fix the amount from that. If you find from the evidence that the agreement which I read had been terminated, either at the payment of his salary that was made on February 12th, or that it had been re-arranged and another agreement was in force, you have a right to determine the issue in controversy upon that fact.] 3 If the contract terminated on February 12th, you calculate the salary due from January 1st up to that time, at the rate of fifteen hundred or two thousand dollars, as you may find the fact to be, and you deduct therefrom any payments made, and 1187.50 is admitted to have been paid in 1881. Mr. Montgomery died on April 25, 1881. [If a man makes a contract for a year, and there are absences permitted to occur or exist by consent and arrangement, or without complaint or objection on the part of anybody, such absences as may grow out of sickness or a vacation, or anything that might satisfy the employer and which he is willing to recognize, the contract continues, if it is a yearly one. If it was a contract that a man was to be paid by the day, he could not get anything but what his contract called for. If a man work for you by the week, and you agree to his going away for a day, you cannot after-wards say that he is only to receive pay for five days and not for the full week, provided it is done by consent and permission. You are to take the testimony and determine what the contract was.] 8.You have simply to be governed by the testimony of the witnesses to determine whether, or not, the contract had been given up and a new arrangement made for service at the rate of fifteen hundred dollars a year, fixed and positive, entered into, or whether it is a continuation of the agreement offered in evidence. [You will ascertain whether the relationship of employer and employee terminated upon February 12th, or whether it was such an arrangement that continued by reason of its being of a yearly character, and that it continued until the day of his death, and that you must judge from the evidence offered in the case.] 1 The jury returned a verdict for the plaintiff for $614.99. A rule for a new trial having been overruled, judgment was entered upon the verdict, when the defendant took this writ assigning as error: 1-8. The parts of the charge embraced in [ ] 1 to 3 4, 5. The answer to defendant’s points.4 5 1. When Montgomery left the store and ceased to perform any service, his right to pay ceased. The common law rule was more severe to the employee. It was held repeatedly that in ease of a hiring for a year, it was an entire contract and the employee could recover nothing unless upon complete performance : Langtry v. Parks, 8 Cow. 63. But by the modern American rule, when the absence is caused by sickness or death, while it is a breach of the contract and the servant cannot recover thereon, yet he may recover on a quantum meruit the value of the services performed, less any damage caused by a failure of complete performance: Wood on Master and Servant, §§ 83, 93, 95, 122; Clark v. Gilbert, 26 N. Y. 279 (84 Amer. D. 189); Yarrington v. Greene, 7 R. I. 589; Hunter v. Waldron, 7 Ala. 753; Fenton v. Clark, 11 Yt. 557; Leaver v. Morse, 20 Yt. 622; Greer v. Gilbert, 21 Wis. 405; Ryan v. Dayton, 25 Conn. 188 (65 Amer. D. 560); Wolf v. Howes, 20 N. Y. 197; Forsytb v. Hastings, 27 Yt. 646. 2. Under tbe peculiar facts of this case, the admission of the contract in evidence in the manner in which it was submitted, was the end of any successful defence as to the amount per annum to be allowed the employee. One of the two men who knew anything about the contract was dead, and the lips of the other were closed'. The paper was an old paper and the, contract was for one year, and from year to year. Surely the burden was upon the plaintiff to connect the contract with the period of time sued for, and to show that her husband not only performed service for the defendant for that period, but at what price. 1. There is no obscurity in this article of agreement. It reads thus: “ except by the death of either party; ” and says that, “ in that case or contingency,” viz.: his death, his compensation shall be at the rate of two thousand dollars per annum, “for the expired time of the year.” The article of agreement nowhere says nor intimates that the expression, “ the expired time of the year,” meant the day John Montgomery went home ill, viz.: February 12,1881. The “ expired time of the year ” was actually and in fact the period between January 1, 1881, and April 25, 1881, the day of John Montgomery’s death. 2. The authorities cited by counsel for plaintiff in error are each and all irrelevant. If the article of agreement had set forth that John Dunlap employed John Montgomery for the year 1875, and from year to year thereafter, at $1,500 per annum, or ten per cent of the profits, leaving out the express provision relative to payment of wages for the expired time of a year, then this case would have come within the line of cases cited by them. But no case is reported, and no case exists, where any court ever ruled that an employee was not entitled to wages while not on active duty, where a written agreement had provided that he should be paid wages during a period of inactivity caused by illness.
123 Pa. 34Lauder v. Logan, Gregg & Co. (1888)
1 OF ALLE GHENT COUNTY. No. 113 October Term 1888, Sup. Ct.; court below, No. 465 June Term 1887, O. P. No. 1. On May,2,1887, a summons in case had issued in an action wherein Edward Gregg, George B. Logan and Thomas A. Parke, partners as Logan, Gregg & Co., were plaintiffs, and Gorge Lander, P. H. Oliphant and S. D. Oliphant, doing business as The Wampum Iron Co., Limited, were defendants, which was served upon George Lauder and returned n. e. i. as to the other defendants.
123 Pa. 42Delp v. Bartholomay Brewing Co. (1888)
ERROR TO THE COURT 03? COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 147 October Term 1888, Sup. Ct.; court below, No. 416 October Term 1887, C. P. No. 2. On October 8, 1887, a summons in assumpsit was served in an action by tbe Bartholomay Brewing Co. against Sebastian Delp, to recover a balance of an account for beer sold and delivered to Bingham & Spencer. At the trial on February 28, 1888, plaintiff company proved the sale and delivery of beer to Bingham & Spencer, of the Hotel Albemarle, continuously from August 21, 1886, to February 1, 1887, and a balance due therefor of $430, with a credit of $100 on said balance, paid by the defendant on February 18,1887. They then proved the transfer of the Hotel Albemarie to the defendant and put in ovidence the following bill of sale, dated January 31, 1887, executed by James M. Bingham and C. M. Spencer, marked, exhibit A “ For the consideration of thirty-five hundred dollars paid to J. M. Bingham by S. Delp, and five thousand dollars paid to C. M. Spencer by S. Delp, the receipt whereof is hereby acknowledged by said Bingham & Spencer, and the further consideration of the said S. Delp assuming to pay about twenty-three thousand five hundred dollars partnership debts of the late firm of Bingham & Spencer, proprietors of the Albemarle Hotel, Sixth street, Pittsburgh, and made in the furnishing and improving said hotel, we, the said J. M. Bingham and C. M. Spencer, do hereby sell, assign, transfer' and set over unto the said S. Delp, his heirs and assigns, all our right, title, interest, claim of, in and to the said Albemarle Hotel, including all the goods, chattels, furniture, fixtures and all personal property whatever now in said hotel and used in carrying on said hotel, with all goods and materials on hand, liquors, etc., stock, etc.; as also lease of said premises between T. H. Baird Patterson, trustee and agent of the devisees of Joseph Patterson, deceased, dated March 22, 1886; and also all outstanding claims and bills payable to said firm by the guests of said hotel and customers of said hotel. Possession of said premises is hereby given to said Delp.” and followed with a bond executed and delivered by S. Delp to James M. Bingham and C. M. Spencer, in $30,000, dated also January 31,1887, with the condition following, the bond being marked, exhibit B “ The condition of the above obligation is such, that if the above bounden Sebastian Delp, his heirs, executors, administrators, shall and do from time to time, and at all times hereafter, wnll and sufficiently save, keep harmless and indemnify the said James M. Bingham and, Charles M. Spencer, their heirs, executors, administrators or assigns, of and from the payment of any and all the debts of the late firm of Bingham & Spencer, composed of James M. Bingham and Charles M. Spencer, recently conducting the Hotel Albemarle, Sixth street, in the city of Pittsburgh, county and state aforesaid, contracted during the continuance of the said firm in furnishing and running the same, presently due and to become due, and of and from all actions, suits, judgments, payments, costs, charges and damages for or by reason thereof then this obligation to be void, otherwise to be and remain in full force and virtue.” The defendant, in his case in chief, produced receipted bills for wages and other accounts for furnishing and running the hotel, paid after his purchase of it, on acount of Bingham & Spencer, to an amount exceeding, as was claimed, the sum of $26,600. He admitted that he had paid to the plaintiff $100 upon the claim in suit, but it was while he yet had in his hands a large part of the consideration money, and he testified to facts from which it was urged that when the purchase of the hotel was made the amount of the indebtedness of Bingham & Spencer had been misrepresented to him. The testimony of the defendant, as well as that of the plaintiff in rebuttal, is sufficiently indicated in the opinion of the court. The court, Magee, J., answered the points presented and charged the jury, in part, as follows : The counsel have presented points of law for instruction by the court, which suggest the important questions of the case. Plaintiff’s points : 1. If the jury believe that Bingham & Spencer transferred their entire business assets to S. Delp, charged with the indebtedness of Bingham & Spencer, and that Delp agreed, out of the proceeds and avails of the business and property, to pay the creditors of Bingham & Spencer, and that the claim of the plaintiff was a part of this indebtedness, and that Delp did ■ actually receive the property under this condition, the verdict should be for the plaintiff. Answer: Affirmed.1 2. If the jury believe that Bingham & Spencer sold their entire business to Delp, and by agreement between them Delp retained, out of the consideration or purchase money, a certain sum which he was to apply to the payment of Bingham & Spencer’s creditors, and that Delp recognized the claim of plaintiff and promised to pay it while in possession of sufficient funds for this purpose, their verdict should be for plaintiff. Answer: Affirmed. 3. If the jury believe that after the execution of the agreement between Bingham & Spencer and defendant, defendant paid plaintiff 8100 on account of their claim, and at that time promised to plaintiff to pay the balance of their account, and at the time of so promising had in his hands a balance of the consideration money sufficient to pay balance of plaintiff’s claim yet unapplied, the verdict should be for the plaintiff, although defendant, subsequent to said promise actually paid out all the consideration money in his hands. Answer: Affirmed.3 Defendant’s points: 1. That upon the pleadings and evidence in this case the plaintiff cannot recover. Answer: .Refused.5 2. That there is no evidence of any binding agreement upon the defendant obligating him in law to pay the plaintiff’s claim against Bingham & Spencer sued upon in this case. Answer: Refused. 8. That there is no obligation shown upon the defendant’s part to pay any debts of Bingham & Spencer outside of the bill of sale, exhibit A, and the plaintiff’s bill not being covered by the terms thereof, they cannot recover. Answer: Refused. We regard exhibit B, given in connection with exhibit A, as also forming part of the terms of the contract of sale, and are of the opinion that both exhibits are to be used and considered in determining the agreement or contract of the parties and the obligations and liabilities incurred by the defendant to Bingham & Spencer, or their creditors, in the consummation of the sale. 4. The defendant having shown that he had paid bills of Bingham & Spencer, exceeding $26,600, amounting to nearly $3,000 in excess of the amount named in exhibit A, he cannot be held liable in this action. Answer: Refused. It is assumed in this point as an established fact that payments have been made to the amount of $26,600, nearly $3,000 in excess of the amount named in exhibit A. The amount paid by the defendant is a disputed question for your determination, and its ascertainment depends upon the evidence. In my general charge I shall endeavor to give you the rules of law on the subject matter of the point, by which you are to be guided in your deliberations. 5. If tbe court refuses the first point above, then the court is asked to charge the jury that if the debt sued upon is one which the defendant undertook to pay, the agreement so to do was void if Bingham & Spencer procured said agreement upon a representation to the defendant that the debts he was assuming to pay were below $23,500 by at least $1,500, to $3,500, and in such case the plaintiff cannot recover. Answer: Affirmed, if you find that misrepresentations were made, and that they were made in fraud and with intent to deceive, and that the defendant was thereby deceived, in connection with the amount of the contract finally named as about $23,500.3 6. If the jury find that the defendant took an assignment of the Hotel Albemarle upon an agreement to pay debts of which the plaintiff’s was one, and that said agreement was procured by the representations of Bingham & Spencer that the debts would not at the utmost limit exceed $22,000, and they did exceed $26,000, and that over $25,000 was paid by the defendant, then the plaintiff cannot recover because of such misrepresentations. Answer: This point is affirmed, unless you find from the amount fixed by the contract as “ about $28,500,” and the payments voluntarily made by the defendant under the contract, evidence to satisfy you that the representations made were not misrepresentations intended to deceive, but were made in view of the uncertain amount of the actual indebtedness existing at the time to be paid.4 * * * * * * * * The court has looked upon these writings as the contract of the parties, in the premises, and that the writings include all that they have finally agreed upon; and that as to the terms, conditions and limitations of the agreement the written contract must speak for itself. With reference to the construction of contracts it is held to be matter of law; that is, that what a contract means is a question of law, and is to be determined by the court. It is my duty, therefore, to give to you as matter of law what the legal construction of the contract is. What did the parties themselves mean and understand ? If that can be ascertained, it is our duty to give force and effect to the terms, language and provisions of the contract, to the end that the intent and meaning of the parties shall be enforced and secured. The intent and meaning’ of the parties to the contract appears to be, on the one part, to transfer the hotel property and secure the payment of the hotel indebtedness, of some kind; and, on the other part, the intent to accept the transfer and to incur or assume liability to a certain extent thereby: and I say to you, as to the meaning of the contract or the construction to be put upon it by you, that the indebtedness contemplated by the ageeement was not limited as expressed in the bill of sale merely to furnishing and improving, but would, as expressed by the terms of the bond, include indebtedness for running the hotel. I am convinced that such was the intent and meaning of the parties, by the fact that bills against Bingham & Spencer, for items of a like character to this claim and for running expenses of the hotel, were paid by the' defendant under the terms of this contract. The limit of defendant in his liability, I take it to bo about $23,500, something more or less, and within reasonable proximity to the amount fixed, as circumstances may require; and, as the creditors are not named or specified in the writings, I take it that it would he the privilege of the debtors, Bingham & Spencer, to indicate, if they saw proper so to do, the line of payment, and in the absence of any direction on their part, then it would be the privilege of Delp to make the application to the payment of the indebtedness in his own way. When the limit of liability assumed has been answered by payments to the full extent, the obligations have been met and the liability of the defendant under the contract is at an end. The liability as assumed is not satisfied simply by the payment of $23,500, but by the payment of a sum about that amount, and such as you may under the circumstances consider reasonable; about that stun and needed to meet the debts. If, however, the payments made at the time this action was begun (or if yon find no evidence to indicate an earlier appropriation, in which event the earlier date would control) did not amount to the full liability incurred by defendant, I take it that the plaintiff would he entitled to recover to an amount at least not exceeding the total liability of the defendant under his contract and not at the time paid out. It is contended by the defendant that the contracts, agreements or writings in evidence, made with Bingham & Spencer create no obligation on bis part in law whereby an action will lie against him by the creditors of Bingham & Spencer; that no privity of contract exists between him and them, and that the provisions or obligations incurred, if enforceable at all by strangers to the contracts, must have first been assumed and reduced to writing between himself and such strangers. Under the ruling in the case of Justice v. Tallman, 86 Pa. 147, and other cases, I am of the opinion that the rule of law contended for is not applicable to the present case and cannot be invoked to defeat this action. Without entering into a review of the evidence I may say that it will be your duty to determine whether the indebtedness by Bingham & Spencer to the plaintiff was contracted by them during their management of the hotel in furnishing and running the same, and whether, at the time suit was brought by plaintiff, the liability of the defendant for payments, to the amount I have heretofore indicated as the extent of defendant’s liability, has been discharged. You will also determine whether or not there has been produced satisfactory evidence of the existence of the debt by Bingham & Spencer to the plaintiff. The jury returned a verdict in favor of the plaintiff for §851.45. A rule for a new trial having been discharged, judgment was entered, when the defendant took this writ, assigning as error: 1, 2. The answers to the plaintiff’s points.1 3 3-5. The answers to the defendant’s points.3 *° 3 1. If the plaintiff can sustain a suit against the defendant, it must be upon some principle enunciated in Adams v. Kuehn, 119 Pa. 85. But what was done between Delp and Bingham & Spencer, to give the plaintiff a right to sue Delp ? The bill of sale shows a transfer in consideration of §8,500 cash, and the “ assuming to pay about §23,500 partnership debts. made in the furnishing and improving said hotel.” No trust, in any proper sense, is created thereby. The property is sold outright. The purchaser pays $8,500 cash and personally assumes a comparatively definite amount of a certain kind of debts. 2. Moreover, if the defendant be liable in this suit, he is liable, as mentioned in Adams v. Kuehn, not only to a multitude of separate suits by as many creditors, but also to suits on the same papers, brought by Bingham & Spencer, and worse than all, the defendant would seem to be liable to any amount, however great. The obligation created by the bill of sale could not be thus broadened by the bond given. The bond was merely collateral, and as an independent undertaking showed nothing enabling the plaintiff to sue. It is merely a personal obligation, and is not only much more extensive in character and in amount than the consideration of the bill of sale, but is outside of it, for that consideration is clearly defined and restricted both as to subject and amount, and the consideration of the bond is not. The defendant’s promise was not to pay the debt of another, but it was to pay “ about $23,500 ”of the purchase money due by him, to third parties, to wit: the vendors’ creditors, of whom the plaintiff was one. It was his own debt which the defendant agreed to pay to parties nominated by his vendors and subsequently affirmed by his own recognition and promise. A person for whose benefit the contract is made may maintain his action against the person who has received the property of the original debtor, and has agreed to substitute himself for the debtor, and such an agreement is not within the act of April 26, 1855: Adams v. Kuehn, 119 Pa. 85; Hind v. Hold-ship, 2 W. 104; Hóstetter v. Hollinger, 117 Pa. 611; Justice v. Tallman, 86 Pa. 147; Clymer v. De Young, 54 Pa. 118; Taylor v. Preston, 79 Pa. 441; Stoudt v. Hine, 45 Pa. 30; Wynn v. Wood, 97 Pa. 216. That the claim of the plaintiff was one clearly included and intended to be included in the contract, was established by the evidence beyond all doubt. The bond, executed with the bill of sale and the only paper executed by the defendant defining his obligation and liability, was sufficient evidence of his liability.
123 Pa. 53Stuckslager v. Neel (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 60 October Term 1888, Sup. Ct.; epurt below, No. 151 September Term 1886, C. P. No. 1. On June 29, 1886, an execution attachment was issued upon a judgment of C. R. Stuekslager against William Kraft, at No. 48 June Term 1884, and J. S. Neel was served as garnishee. Issue. At the trial on April 4, 1887, it appeared that in 1883-4 Kraft, a citizen and resident of West Virginia, was engaged in the coal and river transportation business on tbe Monongahela, river, having an office in Pittsburgh, under the management of W. H. Moore wlio transacted all bis business in this state. Moore, as the agent of Kraft, was filling a contract for the supply of coal to an iron mill, obtaining tbe coal from J. S. Neel, a coal operator on the Monongahela river. Mr. Neel was carrying Kraft’s notes to the amount of $3,700, for coal supplied, when about Marcli 12,1884, rumors readied him that Kraft had failed, and in a few days thereafter Moore, as the agent of Kraft, transferred to Neel fifteen coal flats. J. S. Neel, the garnishee, called by the plaintiff as on cross-examination, testified in substance, that the flats had been transferred to him to hold as collateral security for the protection of the Kraft notes. At plaintiff’s request he produced two bills of sale, both dated March 15,1884, one of them for thirteen flats, with their marks and numbers, at <1425 each, amounting to 15,525; the other, for two flats, with their marks and numbers, also at 1425 each, amounting to 1850. J. C. Thompson then testified that at the time of the transaction he was book-keeper in Mr. Moore’s office; that on Saturday, March 15, 1884, he heard a conversation between Mr. Moore and Mr. Neel: “Neel said he would take all the flats up there and Moore would give him a bill of sale, and as soon as this thing would blow over he ' would pay the difference; he wanted his 13,700 secured;.in two or three months, he would settle with him and pay him the difference, any balance; turning round on his heel, he says: ‘ I want to show you, Moore, I want to help you along and hold these contracts; I will do what is right with you; if you can at any time raise the 13,700 to lift these notes, I will give you the flats back.’ ” The witness also testified that the price agreed upon for the flats was 1425 each, and that on Monday following, Neel came into the office and told witness that he had collected the flats on Sunday, and that day or the next day the bills of sale were made out and -carried to Mr. Neel, by the witness, and he had entered the transaction upon the books. An offer was then made: Counsel for plaintiff, in connection with the bills of sale, proposes to offer in evidence the books of original entry of William Kraft, in view of the fact that Moore and Neel, by a collusive bargain, sold these flats and passed a bill of sale, and proposes to show that there was a regular entry made and a balance struck in the books of William Kraft showing the transfer. Objected to as incompetent and irrelevant; that the books of William Kraft are not competent evidence against the defendant, the garnishee. By the court: Objection sustained.1 W. H. Moore, called by plaintiff, testified that when the bills of sale were made out the price of the flats was fixed by Mr. Thompson, not agreed upon by him and Mr. Neel; that Mr. Neel said he did not want the flats but as security, and the flats were given him for that purpose. Testimony was also introduced from which it was claimed that the flats were worth about $500 each. In his defence, Mr. Neel testified at length as to the transfer of the flats to him; that it was done as collateral security, and the bills of sale were taken because he thought that was the way to do it. It was then shown that Kraft, or Moore for him, had paid the interest on the notes to the bank holding them, until January, 1885, when Mr Neel paid and lifted them. The court, Bailey, J., charged the jury as follows : The position of the plaintiff, as I understand it, is, that by collusion between Moore, the agent of Kraft, and Neel, the garnishee, certain property belonging to Kraft, consisting, Í believe, of fifteen flats, was transferred to Neel for the purpose, not merely of paying Neel’s claim against Kraft, which seems to have been $3,700, but for 'the purpose of delaying and defrauding creditors, covering up the property so that Kraft’s creditors would be defrauded and prevented from making their money. That is the position taken by the plaintiff, that this was a fraudulent transaction. The burden is upon the plaintiff. There is no presumption of fraud; it is a matter to be proven, and it must be proven by the party who alleges it. It must be established here, not merely that Mr. Moore may have had some improper purpose in transferring these flats, but that Mr. Neel was a party to it, consenting and conniving with Moore, as the agent of Kraft, to cover up this property for the purpose of defrauding creditors. I do not propose to go into the various questions that have been suggested, or the matters that were pressed upon your attention as determining these questions, but the main points upon which stress has been laid by plaintiff’s counsel in attempting to establish this claim, are, first, as to the amount of property transferred, fifteen flats, which at $425 each would amount to something over $6,000 ; that that was so much in excess of the $8,700, due by Kraft to Neel, that it involved in itself indications of some purpose other than an honest one. That is a question for you to determine under the facts. The mere transfer of an excess of property, is not necessarily a badge of fraud. It may have been for the purpose, as the defendant contends, of security and for no other purpose, and that the defendant, seeking to be secured, desired to get all the property he could which would make him secure, and in doing that he would be exercising a legal right. It is not necessary that he should take property just exactly to the dollar, of the amount he claims due to him and sufficient to pay his indebtedness, but he is at liberty to get what he can to secure him, provided he does it honestly and for the purpose of protecting himself and paying the indebtedness to him. Another matter that is claimed by the plaintiff to show fraud, is the language ascribed to Mr. Neel by the witness, Mr. Thompson, that after this arrangement had been made Mr. Neel said to Mr. Moore, “ You know I am disposed to help you and do what I can to assist you, and when this thing blows over I will pay you the difference between this $3,700 and the value of the .flats.” [Upon the subject of the value of the flats, that is a matter upon which the parties are not necessarily concluded by the $425, but this party plaintiff would be only entitled to recover, in any event, what the flats were actually worth, and that is a question of fact for you under all the evidence in the case.] 3 Another alleged badge of fraud is the bills which were made for these flats and receipted by Mr. Moore; that that was a transfer for the purpose of deceiving the creditors and therefore defrauding them out of their just rights. That may be so. It depends upon all the other circumstances. Standing alone it does not necessarily amount to evidence of fraud in itself. It is perfectly consistent with the position taken on the part of the defence, that it was merely a pledge of the property to secure Mr. Neel’s claim against Mr. Kraft; but, of course, fraud can be ascertained, and must be ascertained, ordinarily, from all the circumstances surrounding the transaction. Taking into account matter which may be inconsiderable in itself, along with various other matters, it may become evidence for the jury to satisfy them that some fraud was intended, but, you will recollect, it must have been with the consent and connivance of Mr. Neel. The mere improper conduct on the part of Mr. Moore, or improper purpose on his part, would not be sufficient to show that the matter was for the purpose of defrauding creditors and therefore void. On the other hand the explanation is that this property was transferred to Mr. Neel merely for the purpose of security, and to protect him against the two notes for $3,700, which were then maturing and upon which he was indorser and liable to the Tradesmen’s National Bank, in which they had been negotiated. It is perfectly competent for the defendant to explain in that way, if you believe the facts as represented by him, the bills which were receipted by Mr. Moore for the fifteen flats. The fact that an absolute bill and receipt were rendered is not inconsistent with the explanation given by Mr. Neel; and it would be perfectly competent for any other party to protect himself, so far as there may have been any excess in the hands of Mr. Neel, belonging to Mr. Kraft, and subject to his debts by proper course. [It was perfectly competent for this plaintiff to issue an execution and sell the rights of Mr. Kraft in any excess in the hands of Mr. Neel. Then he would stand in the place of Mr. Kraft and be entitled to buy in the rights of Mr. Kraft to that excess, and when he did so he would stand in Mr. Kraft’s place, and, by paying to Mr. Neel what Mr. Kraft owed him, he would be entitled to obtain the property or the value of the excess, if Mr. Neel refused to deliver the property to him.] 5 So that [the question is, not whether Mr. Neel shall retain the entire amount of the value of these flats, without redress to anybody else, but whether sufficient has been shown here to satisfy you that the whole transaction was a contrivance and a scheme to cheat and defraud creditors. If you find there was such a scheme and connivance and this was not a mere transfer of property for the purpose of security, you will be at liberty to find for the plaintiff for the whole value you may ascertain the flats to be worth, because if the transaction is void at all it is void throughout and Mr. Neel is not entitled to retain anything.] 4 If it was a transfer, however, for the purpose of security merely, Mr. Neel has a right to hold on to the flats until he is reimbursed by somebody, either by Kraft or by some of his creditors, in the mode in which I have indicated. When that is done the difference will be applied to the indebtedness of Mr. Kraft; and your verdict here, if you find that to be the state of fact, will be for the defendant. The verdict of the jury was for the garnishee. A rule for a new trial having been discharged, judgment was entered upon the verdict, when the plaintiff took this writ, assigning as error: 1,2. The refusal of plaintiff’s offer.1 3-5. The parts of the charge embraced in [ ] 3 t0 5 1. The plaintiff was the judgment creditor of Kraft. Kraft was defendant with Neel, the garnishee. The making of the bills of sale and the entry on the books being contemporary acts, surely it was competent for plaintiff to offer the books of Kraft, in connection with the bills of sale, for the purpose of enabling the jury to arrive at the intentions of the parties at the time: Laird v. Campbell, 100 Pa. 159; Corr v. Sellers, 100 Pa. 169; Noar v. Gill, 111 Pa. 488. The court will perceive from the evidence that the transaction bore all the badges of fraud, and that the transfer was made for the purpose of hindering, delaying and defrauding creditors. In this view, if in no other, the offer was competent. 2. The court erred, further, in. instructing that the parties were not necessarily concluded by the price fixed for the flats, “ but that plaintiff would be entitled to recover, in any event, only what the flats were actually worth.” The evidence showed an unconditional sale. Bills of sale were passed and accepted, and surely the parties were concluded by their own act manifested in writing, the more especially when other creditors were concerned: Babb v. Clemson, 12 S. & B.. 828. 3. The plaintiff was much prejudiced by the instruction that the jury, if they believed the transfer was a contrivance to defraud creditors, would be at liberty to find for the plaintiff for the whole value of the flats, because the transaction, if void, was void throughout. Plaintiff asked the jury to find merely for the amount due by Neel to Kraft over his claim of $3,700. The instructions led the jury to believe they could find but one of two verdicts, one for the plaintiff for the full value of the flats, or to accept the theory of the defendant that the property was held merely as collateral. 1. The book-entry was not made in the regular course of daily business: Shoemaker v. Kellog, 11 Pa. 310; Corr v. Sellers, 100 Pa. 170. 2. If the transfer was a “ scheme and contrivance,” then, undoubtedly, the plaintiff could have recovered the full value of the flats. And even if the court erred in any portion of the charge bearing upon the question of value or the amount of recovery, it is immaterial, for the jury found that the transfer was as security.
123 Pa. 62McCloskey v. Powell (1889)
ERROR TO THE COURT OF COMMON PLEAS OE FOREST county. No. 206 October Term 1887, Sup. Ct.; court below, No. 1 December Term 1883, C. P. On September 24, 1883, a summons in trespass q. c. f. was issued in an action by Robert McCloskey and A. B. Reid against J. H. Ryder, James N. Scatcherd, John N. Scatcherd and Jerome Powell, to recover for the cutting of timber trees, under the act of March 29,1824, 8 Sm. L. 283. James N. and John N. Scatcherd were not served; Ryder and Powell pleaded, not guilty. At the trial on December 23, 1886, the facts were in substance as follows: In 1880, Ryder, as the agent of James N. and John N. Seatcherd, doing business at Buffalo, N. Y., as Scatcberd & Son, negotiated with Powell, who resided at Ridgway, for the purchase of a quantity of cherry and other hard-wood timber supposed to be upon land owned by Powell. Powell owned two adjoining tracts, warrant numbers 2517 and 2545, as illustrated upon the sketch, and proposed to have a survey made to ascertain whether the timber wanted was within his lines. In A ugust, 1881, he took a surveyor named Dickson, and a corps of helpers including one Frampton, who had been over the land with Ryder when examining the timber, and proceeded to make the survey. They began at the southeast corner of 2545, and ran west on the south line of that warrant. At about 480 rods, by their measurement, they came upon an old marked corner, with a line running north and south therefrom. The official length of this south line of 2545 was 477 rods. The corner reached was . discussed, but the mark was not blocked to ascertain its age. They then ran 131 rods farther west, and reached a post and witness trees marked. The marks seemed to be as if made of a recent date, and, their line being too long for the official distance, Frampton suggested that they go south upon the district line and verify it by running north, but Powell declined to do so as it would consume time. Without blocking the marks they then turned north from the corner last mentioned (which was in fact a corner for a line made in 1863 as a subdivision of 3157 south of it) and ran 323 rods north, when they struck another corner corresponding with the one they had left, and, again without blocking, they turned east and ran 129 rods when they reached another old corner, which, however, they did not block for examination. Powell went home, and the surveyor made a plot of the survey. On October 22, 1881, after reporting the result of the survey to Ryder, as embracing the timber negotiated for, Powell entered into a written contract with Scatcherd & Son by which he sold to them the cherry and other hard-wood timber upon the two parcels known as warrant 2545, “containing 1154 acres ” (the official quantity being 900 acres and allowance), and warrant 2517, “containing 1009 acres more or less,” the agreed prices per thousand to be paid according to an estimate on the stump.to be made by Ryder for Scatcherd & Son and by Frampton for Powell. Soon afterward, Prampton and Ryder made the estimate, marking the trees to be cut up to the line of the new survey. Ryder then put up a mill on 2545, and in 1882-83 cirt and removed all the hard-wood timber within the lines surrounding the parcel marked, Locus in quo, amounting to 350,000 feet, for which payments were made to Powell as they became due. The plaintiff showed title to 3158, embracing the locus in quo, and rested. The foregoing case of the plaintiffs was not materially affected by the testimony of the defendants. The court, Bbowít, P. J., charged the jury and answered the points presented as follows: The plaintiffs’ tract is in Forest county. Jerome Powell, one “of the defendants, was the owner of a tract of land east of the plaintiffs’ tract. The number of Powell’s tract was 2545. Powell also, it appears, owned another tract lying east of that again, — the first mentioned tract of Powell being east and adjoining the tract of the plaintiffs. Powell’s tracts are in Elk county, the county fine being the boundary line between his tract and the plaintiffs’. By the contract dated October 22, 1881, Powell agreed to sell to Seatcherd & Son all the merchantable cherry, ash, poplar and cucumber timber then standing, lying or being on his two tracts of land. After the making of this contract, Ryder, one of the defendants, took charge of the cutting of the timber for Seatcherd & Son. The plaintiffs have given evidence of the location of the division line between their tract and the Powell tract, 2545; and inasmuch as the defendants have given very little, if any, evidence on which the jury ought to pass, contradicting or challenging the correctness of the location of the line, as testified to by plaintiffs’ witnesses, you will probably have no difficulty in concluding that the true line is where the plaintiffs claim it to be. The plaintiffs have introduced testimony showing that the defendant, Ryder, or persons acting under him or under his directions, cut a quantity of cherry, ash, poplar and cucumber timber upon that portion of the plaintiffs’ tract which lies east of the line parallel to the division line between the plaintiffs’ and the defendant’s tract; that is to say, upon the strip that is the subject matter of this suit, being a distance of something like 180 rods west of the true division line. To this extent the testimony of the plaintiffs is not particularly disputed; and you will probably have no difficulty in coming to the conclusion that Ryder and those acting under him, did cut cherry, ash, poplar and cucumber timber west of that line. And you will probably have no difficulty in coming to the conclusión that the plaintiffs are entitled to a verdict; but whether against one or both the defendants, will depend upon considerations to which I will presently call your attention. * Having instructed you as to the principles and rules by which the damages are to he assessed, we now reach a question of law upon which I have had no little difficulty in arriving at a conclusion satisfactory to myself; but, whether we are correct or not in our ruling, you will take it as the law of the case. The question referred to is raised and will be disposed of in answer to the defendants’ first point, wherein the court is requested to instruct you that, upon all the evidence in this case, the plaintiffs are not entitled to a recovery against the defendant, Jerome Powell. This is an action of trespass based upon an act of assembly highly penal in its character, and must not be construed to extend to eases not clearly within its provisions. As to the liability of Ryder no question exists, because, according to his own testimony, he cut and employed others to cut and take away the timber. But is Powell liable ? The question is not whether Powell is or is not liable to account in some form of action. We may assume it to be the law that he undoubtedly is so liable. But is he liable together with Ryder in a joint action of trespass for cutting and taking the timber in suit ? To entitle the plaintiff to a against joint trespassers, it must appear that they acted in concert committing the trespass for which the action is brought. The trespass for which this action is brought is the cutting and taking timber from the plaintiffs’ land, and we feel compelled say to you that [there is no evidence in the case from which you can, with propriety, find that Powell acted in concert with Ryder in committing the trespass for which this action is brought.] 5 Hence we answer the defendants’ first point in the affirmative, and this leaves you to bring in a verdict against Mr. Ryder alone, and to assess the damages in the mode which have stated. It is gratifying to know that if I ain in error this, the Supreme Court will very readily correct it. The plaintiffs request the court to charge: 1. If the jury believe from the evidence, Powell, procured the west line of his lands to be so run and marked as to include some two hundred and sixty acres of land belonging to plaintiffs, and caused the hard-wood timber on his said lands to be estimated up to said line, and caused said line, so run and marked, to be pointed out as his line, to J. H. Ryder, acting for Scatcherd & Son, to whom he, Powell, had sold said hard-wood timber, and that said purchasers accordingly, by reason of said acts of Powell, cut the timber up to said line, and paid him the stumpage for the timber so cut on plaintiffs’ land, or any portion of it, he, Powell, would be liable to the plaintiffs as a co-trespasser with the party or parties who actually cut the timber. Answer: This point is denied.1 2. That the defendant, Powell, would be liable to the plaintiffs for the trespass committed on their land, if the jury believe from the evidence that'his acts in the running and marking of the line, and the selling, estimating and pointing out the timber, if such acts were done by him or by his procurement, ordinarily and naturally induced the purchasers of the timber to commit the trespass referred to. Answer: We think that this point confounds the distinction between injuries that are the consequence of an act, and injuries that are the direct result of force, and it is answered in the negati ve.8 3. Under the facts stated in the first and second points, the defendant Powell would be liable as therein stated, no matter whether he did or did not know at the time that the line so run and marked encroached on land that did not belong to him. Answer: This point is denied.3 The defendants request the court to charge : 1. Upon all the evidence in this case, the plaintiffs are not entitled to recover against defendant Jerome Powell. Answer : This point is affirmed. 2. If the defendant Powell had title to tract numbered 2545 and caused a survey to be made by a surveyor of good repute in his profession, with a view to ascertain its boundaries, and found lines and corners upon the ground which the surveyor pronounced to be the lines and corners of the said tract, and he was afterwards informed by another surveyor of good repute, acquainted with the line between his tract and plaintiffs’ tract, that the lines so found were the true lines of his tract, and believing and in good faith relying upon the opinions so expressed by such surveyors, he sold the timber upon his said tracts to the defendants Scatcherd & Son and expressed to them or their agent his opinion that the lines were as they had been pointed out by such surveyors, and did nothing more to encourage or induce said Scatcherd & Son to cut said timber, and the defendants Scatcherd & Son, relying upon the accuracy of the said lines, purchased the timber within the same without knowledge or reason to believe that the said lines included part of plaintiffs’ land, and in good faith believing that they had title and light to do so, cut the timber within the said lines, the plaintiffs are not entitled to recover at all against the defendant Jerome Powell, nor to recover against the other defendants, treble damages for the cutting and removal of any of the said timber which may be found to have been within the line of their tract. Answer: We say that we have already said that there can be, in this suit, no recovery against Jerome Powell; but, with that exception, the point is refused.4 The jury returned a verdict against J. H. Ryder “ for $4,350.61, single damages, composed of $4,130.06, for timber cut and carried away, and $220.55 for timber cut and left upon the ground.” Judgment having been entered under the act of 1824, for the treble and double damages allowed, the plaintiffs took this writ, assigning as error : 1-3. The answers to the plaintiffs’ points.1 to 3 4. The answer to the defendants’ point.4 5. The part of the charge embraced in [ ]5 1. Where A sells the timber on his lot to B, who is a stranger in the county, ignorant of land titles and lines, — if A, by positive acts, such as making lines and pointing them out as his, estimating the timber, marking the trees to be cut, and receiving from B the stumpage therefor, induces B to cut and carry away the timber from plaintiffs’ lot, shall B be guilty of the trespass, and A, whose acts and representations brought it about, not be guilty too ? In principle and reason it would seem that the maxim, Qui facit per alium, facit per se, is applicable in just such a case as this, and the authorities to that effect are overwhelming : Dreyer v. Ming, 23 Mo. 434; Hamilton v. Hunt, 14 111. 472; Cram v. Thissell, 35 Me. 86; Scott v. Hunter, 46 Pa. 193 ; Bard v. Yohn, 26 Pa. 489 ; Dundas v. Muhlenberg, 35 Pa. 353; Flewster v. Royle, 1 Camp. 187; 1 Arch. N. P. 413 ; Guille v. Swan, 19 Johns. 381 (10 Amer. D. 234) ; Leame v. Bray, 3 East 593 ; Gibbons v. Pepper, 1 Ld. Raym. 38 ; Wall v. Osborn, 12 Wend. 39 ; McMurtrie v. Stewart, 21 Pa. 322; Davis v. Newkirk, 5 Den. 92; Herring v. Hoppock, 15 N. Y. 413 ; Johnson v. Tompkins, 1 Bald. 601; Ricker v. Freeman, 50 N. H. 420 (9 Amer. R. 267); Reiser v. Beemer, 3 Pa. S. C. Dig. 189; s. o. 12 Cent. R. 492. 2. Property may be wrongfully converted by two or more persons jointly, although the acts of one may have followed the acts of others at successive periods of time in producing tlie results. The maxim, Causa próxima non remota spectator, is not controlled by time and distance, but by the succession of events: Penn. R. Co. v. Kerr, 62 Pa. 366; Penn. R. Co. v. Hope, 80 Pa. 379. These railroad causes were actions on the case, but the maxim referred to, as explained in the books, is applicable alike to actions of trespass and case. The test of liability in both, so far as this maxim is concerned, is whether the acts of the party, sought to be charged, ordinarily and naturally induced the final act in the series which worked the actual mischief: Scott v. Hunter, 46 Pa. 193; Pittsburgh v. Grier, 22 Pa. 66. Nor is it necessary that tire trespass, at the time it was done, should have been for the defendant’s benefit: the question of interest becomes material, only where one assents to a trespass after it has been committed, without any previous act inducing it: 1 Arch. N. P. 424: 4 Inst. 371; Williams v. Sheldon, 10 Wend. 656. And intent is not material under the act of 1824 : Watson v. Rynd, 76 Pa. 59 ; Kramer v. Goodlander, 98 Pa. 363; nor in any case of trespass: Brooks v. Olmstead, 17 Pa. 24; 1 Chit. PL 129*; 2 Greenl. Ev. § 622; Ricker v. Freeman, 50 N. H. 420 (9 Amer. R. 267). 1. The action given by the statute is a new one, possessing some of the features of both trespass and trover, but differing very materially from both, and more nearly akin to case than to either, as when the owner has neither the possession nor the right of immediate actual possession, and the trees cut are not converted. A party entitled to temporary possession may support trover against the owner : Roberts v. Wyatt, 2 Taunt. 268. A lessor cannot support trespass for an injury to the inheritance, during a subsisting lease, but the action, if trespass, must be in the name of the tenant, the lessor’s remedy being in case: Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468. But under the act'of 1824, the plaintiff must have the absolute property, and it is immaterial whether his right be in possession or in reversion: Tammany v. Whittaker, 4 W. 221. It is obvious, therefore, that in enacting the statute the legislature had not in view the incidents of the common law actions of trespass and trover, and adjudications in those kinds of cases can afford no light in its application: Hughes v. Stevens, 36 Pa. 320 ; O’Reilly v. Shadle, 33 Pa. 489. Moreover, the remedy is not only statutory, it is highly penal, and is therefore to be construed strictly: Wheeler v. Carpenter, 107 Pa. 271. 2. Then did Powell “ cut down or fell, or employ any person or persons to cut down or fell any timber tree or trees ” of the plaintiffs ? It is sought to connect him with the cutting by the paper called the contract of sale of the timber, yet that paper will be searched in vain for any provision creating the relation of employer and employee between Powell and Ryder, or Scatcherd & Son. And, regarding the act of Frampton, in assisting to point out and mark the timber to be cut, as the act of Powell, that act would not come within the language of the statute. Nor has the maxim, Qui facit per alium, facit per se, any application. The addition of the words, “ or employ any person or persons to cut down and fell,” limits the previous clause, “ cut down and fell,” to a personal cutting and felling, else why were these words added ? ' 3. Nor would the common law action of trespass lie against Powell for the injuries complained of in this case. In nothing that he said or did, was there anything equivalent to a command, an employment, or a procurement. The force, of which the injury was the direct and immediate result, cannot, therefore, be imputed to him upon the maxim above quoted. Surely, there was no legal force involved in conveying standing timber, and pointing out the lines on which it stood. Men frequently convey land to which they have no title, as it afterwards turns out, yet no one ever heard of an action of trespass against a vendor for the subsequent acts of the vendee. But why should the case of a vendor be different from that of a mere licensor ? Offerman v. Starr, 2 Pa. 394; Kile v. Gfiebner, 114 Pa. 381. The most that can be said in this case, is, that the injury, if any, was consequential, and if not too remote, Powell might be liable in another form of action, but not in trespass : Leame v. Bray, 3 East 593; Edelman v. Yeakel, 27 Pa. 26.
123 Pa. 75Hoffman v. Commonwealth (1889)
ERROR TO THE COURT OF QUARTER SESSIONS OF WESTMORELAND COUNTY. No. 35 October Term 1887, Sup. Ct.; court below, No. 109 August Term 1887, Q. S. On September 9,1887, an indictment of Frederick Hoffman and twenty-one others for “ Malicious Trespass ” was found a true bill. The first count charged that the defendants, “ with force and arms, etc., in and upon the lands of one Geofge F. Dibble, there situate, did commit a wilful and malicious. trespass, and then and there, without the consent of the said George F. Dibble, did maliciously and wilfully walk over, dig up, and otherwise injure the grass, grain, vegetables, and other growing crops on said land, to the great injury and damage of the said Geo. F, Dibble and contrary,” etc. The second count charged that the defendants with force and arms, etc., did enter etc., “ and cut down and fell timber trees knowing the same to be growing and standing upon the lands of the said George F. Dibble, without the consent of the owner,” etc., etc. The defendants pleaded, not guilty. At the trial on September 13, 1887, it appeared that, on August 27, 1887, George F. Dibble made an information before Eli McCormick, a justice of the peace, charging that on that day “these defendants above named were found by complainant engaged in a wilful and malicious trespass upon his lands, digging up and injuring the same, contrary to the provisions of the act of assembly in such case made and provided.” The record of the justice certified to the court, after noting the issuance of the warrant, set forth: “ And now August 27,1887, above named defendants arrested and brought to office, and, having no bail or producing none, they were committed to the jail of Westmoreland county for trial. . “Bonds given before D. C. Morris, Esq., same day, and returned to me Monday morning, August 29, 1887.” The defendants filed a motion to quash the indictment upon grounds sufficiently appearing hereafter, which motion was refused,1 and the cause proceeded upon the evidence. Neither the testimony, nor the charge to the jury, appeared upon the paper books, but certain points presented by the defendants and the answers thereto, were as follows: 1. The act of assembly under which the first count is laid is repealed by the act of June 8,1881, and you must therefore acquit the defendants of this count. Answer: The act of 1881 repeals the act of 1860, under which the district attorney says he framed the bill, but be this as it may, we think the offence described in both acts substantially the same, and that the bill is good under the act of 1881. The point is therefore refused.4 2. That, the information not showing that the magistrate did hear and determine the guilt or innocence of the defendants before commitment, the Court of Quarter Sessions has no jurisdiction as to the first count, and as to that you must acquit the defendants. Answer: This point is refused.5 The jury returned a verdict of not guilty, and that defendants pay the costs. On November 12, 1887, a motion in arrest of judgment was denied and judgment entered that the defendants pay the costs; thereupon the defendants procured this writ, allowed by Mr. Justice Clakk, and assigned as error: I. The refusal to quash the indictment.1 4, 5. The answers to defendants’ points.4 5 II. The refusal of the motion in arrest of judgment. When the district attorney declared that he prosecuted under the act of 1860, we answered that that act was repealed by the act of June 8, 1881, P. L. 82. The court so ruled, but tried under the act of 1881. This act partakes of both a civil and criminal character. The first section describes the offence; the second, the method of procedure, which must be either a case of summary conviction, or a suit for a penalty. Being one of the two, a court of record can acquire jurisdiction only-on an appeal of either party to such court, “ upon allowance of the appellate court, or a judge thereof, upon cause shown: ” Section 14, article V., of the constitution; Act of April 17, 1876, P. L. 29. In the present case, the magistrate did not exercise jurisdiction, nor was a trial before him waived by the defendants. The Quarter Sessions could not acquire jurisdiction, until after judgment pronounced by the magistrate. For the practice in summary convictions see: Reid v. Wood, 102 Pa. 312; McGuire v. Shenandoah, 109 Pa. 613. 1. It is not conceded that the act of June 8, 1881, repeals § 152, act of March 31, 1860, P. L. 416. They describe different offences and must be construed together, that both may stand. Whether the magistrate had before him, when he prepared the information, said section of the act of 1860, or the act of 1881, the information describes an offence under both acts, and, with such information supplied, the district attorney might frame his indictment under both or either. If under both acts, as the indictment itself would indicate, then an offence is sufficiently charged and the whole matter must be left to the jury: Linn v. Commonwealth, 96 Pa. 288. 2. The act of 1881 outlines two distinct methods of procedure : one, by summary conviction, when the injured party receives one half the penalty imposed. The act of April 17, 1876, applies only to proceedings of this class. But the act gives defendants another course, if they chose to pursue it, to wit: To enter into a recognizance to answer a charge of misdemeanor before the Court of Quarter Sessions. This second method of procedure begins with the commencement of the cause before the magistrate, and the clear intent of the proviso is that the defendant may carry the case at once to the Court of Quarter Sessions and have the benefit of a trial by jury therein, upon entering into the required recognizance.
123 Pa. 81Alexander v. Ellis (1889)
ERROR TO THE COURT OK COMMON PLEAS OF JEFFERSON COUNTY. No. 117 October Term 1888, Sup. Ct.; court below, No. 186 September Term 1881, C. P. On July 18,1881, Jabez L. Ellis brought an action of trespass against John Alexander to recover treble damages, under the act of March 29, 1824, 8 Sm. L. 283, for timber trees out down and converted. The defendant pleaded, not guilty. At the trial on October 13, 1887, the evidence in support of the plaintiff’s title to the locus in quo was in substance as follows : On November 15, 1793, land warrant No. 4278 was issued by the commonwealth in the warrant name of John Barron, Jr. A survey having been made and returned, on March 9, 1818, a patent issued thereon to Joseph H. Barry, whose title to the whole became vested in T. W. L. Freeman on November 12, 1844. Afterwards T. W. L. Freeman conveyed as follows: To Chas. D. Freeman, by deed dated August 28, 1845, recorded December 29, 1845, the several parcels numbered respectively 1, 2, 3, 4, 5, 6, 8, 9, and 11, “ according to the plan or draft of subdivision intended to be filed of record in the recorder’s office of Jefferson county, being part of warrant tract No. 4278,” etc. To J. H. Jones by deed dated November 10, 1845, recorded October 19, 1866, tbe parcel designated as No. 10 on “ a plan, etc., intended to be filed of record,” etc. To H. R. Norman, by deed dated January 4, 1846, recorded February 3, 1848, the parcel known as No. 7, “ according to a plan or subdivision . of a larger tract,” etc. With this deed there was put on record the following plan: At the triennial assessment made in 1846, for the years 1847, 1848, and 1849, the entire warrant tract 4278, then unseated and without subdivision on the ground, was assessed at 1046 acres, in the name of John Barron, Jr., “ warrantee or owner.” On November 3, 1847, recorded January 7, 1848, Charles D. Freeman conveyed to J ames Magee the parcels numbered 1, 2, 3, 4, 5, 6, 8, 9, and 11, as conveyed to him by T. W. L. Freeman, “ containing in all 844 acres and 114 perches and allowance.” In 1850, the entire warrant tract 4278 was advertised for sale for the unpaid taxes of 1848 and 1849. On June 8,1850, David McLaughlin, claiming to own the Jones parcel, No. 10, as was alleged, paid the taxes on 120 acres, and on June 10th the treasurer of the county sold the remaining part of the tract as containing 926 acres to John J. Y. Thompson for Robert Orr, to whom the deed was acknowledged. On May 12, 1852, James Magee paid to the county treasurer 153.74, in full for the amount of the taxes, costs, and twenty-five per cent thereof added, “ on redemption of tract of land in Snyder township, warranted in the name of John Barron, No. 4278, and containing 844 acres, which said land was sold by my predecessor to John J. Y. Thompson, at the sales of 1850.” On December 18, 1852, James Magee conveyed to John Alexander, the defendant herein, 732 acres adjoining Nos. 7 and 10. On February 24, 1859, Robert Orr conveyed with special warranty parcel No. 7, to J. L. Ellis, the plaintiff below, described as containing 100 acres strict measure. This parcel, No.- 7, was the locus in quo of the trespass complained of in this suit, the plaintiff claiming under his deed from Robert Orr, and alleging that Alexander had caused the cutting and conversion of the timber standing thereon in the fall of 1880 and the succeeding winter. Disputed questions as to the title of the defendant are not material to the case as decided. The court, Wickham, P. J., 36th district, holding special term, after reviewing the testimony in part, charged the jury as follows: Then, gentlemen, what next? Charles D. Freeman, by his deed dated November 3, 1847, conveyed his nine parcels or subdivisions to James Magee, whose name figures prominently in this trial, it being alleged that the defendant in this case succeeded to his title. Norman and Jones, for aught we know from the records, held on to their properties; but, if the records are to be believed, the time came when they each and all forgot or neglected to pay their taxes. The taxing powers, ignoring, or ignorant of, the subdivision of the tract and change of ownership, went on assessing tract 4278 as a whole. The taxes for 1848 and 1849 seem to have been unpaid, consequently the right of the public to sell the land for taxes ripened in 1850, or earlier. On June 8,1850, an entry in a book from the treasurer’s office, put in evidence, shows that D. McLaughlin paid the taxes on one hundred and twenty acres of the tract. It is alleged here in behalf of the plaintiff that the one hundred and twenty acres was the Jones subdivision, No. 10. Two days after McLaughlin paid the taxes on the one hundred and twenty acres, which would be June 10, 1850, the remainder of the land, estimated at nine hundred and twenty-six acres, was sold, it is claimed by the plaintiff, for taxes, to Robert Orr. It is alleged that the treasurer’s deed made to Mr. Orr has been lost; the loss of the deed, if its existence is sufficiently proved, would not in itself impair in any degree the plaintiff’s title. You have the books and other records before you, and you must determine the fact of the sale for yourselves. Were the taxes in arrear? If so, the right to sell therefor existed. Was the sale made? Was Orr the purchaser? Did he receive a deed from the treasurer ? Answer these questions, gentlemen, in the light of the evidence. On May 12,1852, nearly two years after the alleged tax sale, as an entry in one of the county treasurer’s books and a receipt here offered in evidence show, eight hundred and forty-four acres of the land sold was redeemed by James Magee. Quite a controversy arises here between the plaintiff and the •defendant; the plaintiff avers that Magee only intended to redeem, and actually did redeem, the nine parcels he bought from Charles D. Freeman; these nine parcels, or subdivisions, contained, according to the deed to Magee, eight hundred and forty-four acres and one hundred and fourteen perches, and, I believe, allowance; he redeemed eight hundred and forty-four acres, according to the proof. [The defendant contends that Magee redeemed subdivision No. 7. The evidence showing that he sought to' redeem more than his own land is not clear; in the opinion of the court it is not sufficient to justify a finding that he did so ; but the view taken by the court of the law governing the redemption of lands sold for non-payment of taxes, makes Magee’s alleged effort towards redeeming the Norman lot, if he ever made such an effort, of no importance in the case. Magee never owned the Norman lot; he never claimed to own it; he had no interest of any kind in it; as a consequence, his voluntary act as a mere stranger could not deprive Orr of his title to the Norman lot under the treasurer’s deed, if any title Orr had. Magee could redeem his own eight hundred and forty-four acres and no more; and, indeed, under all the evidence, as I have already intimated, it would be difficult, and impossible, perhaps, to say that he tried or intended to do more than this. So far as subdivision No. 7 is concerned, he was a stranger, and, if our opinion of the law is correct, any interference with it would be an act of intermeddling between Orr, the alleged purchaser at the treasurer’s sale, and Henry R. Norman, or those claiming under him, in whom and whom alone the equity of redemption was vested.]1 Nothing is shown in the way of a ratification on Orr’s part of Magee’s alleged act in redeeming, or attempting to redeem, this parcel. A rule that would require the owner of land in severalty, sold as part of a larger tract, to redeem the whole tract might produce great injustice; the ignorance, neglect, perversity, or fraud of an assessor might cast upon a poor man possessing-hut one acre the duty of redeeming ten thousand acres to save his own. The rule that would permit a mere stranger to redeem land wherein he had no color of title or interest, and whereto he had no shadow of claim, would give him a right to intermeddle without excuse, to divest title with which he had no possible concern. The law does not encourage, nor as a rule permit, volunteers to injuriously interfere with the vested rights of others. Passing on we find that on February 24,1859, Robert Orr and wife conveyed the N orman lot, or subdivision No. 7, to J. L. Ellis, the plaintiff in this case. Now gentlemen, if you find that a sale of tract 4278, or so much thereof as lies in Jefferson county, was made by the treasurer of Jefferson county in 1850 for the taxes assessed for 1848 and 1849; that Robert Orr became the purchaser and got a deed; that subdivision No. 7 of the tract remained unredeemed in Orr’s hands; that he sold this lot to the plaintiff; that the latter was still the owner when the alleged trespass was committed, and such trespass actually was committed, the plaintiff would be entitled to recover unless something further appears in the case. vfc % vK- A number of points have been submitted by the counsel on both sides, which the court will now proceed to answer, taking up those of the plaintiff first. We are asked by the plaintiff to charge you [inter alia] : 3. No one but an owner, or one who has at least a colorable title, has any authority to redeem from a tax sale, and as there is no evidence in this case that James Magee, when he redeemed eight hundred and forty-four acres of 4278 on May 12, 1852, had any title whatever to the Norman lot, known as subdivision No. 7, his redemption of said eight hundred and forty-four acres would not defeat the title of Orr under said tax sale, no< matter whether said eight hundred and forty-four acres did or did not cover the said Norman lot. Answer: As the evidence excludes any inference that Ma-gee either owned or claimed any interest in the Norman lot, this point is affirmed.3 The defendant through his counsel presents the following points [inter alia] : 6. That as the redemption receipt of E. R. Brady, treasurer of Jefferson county, dated May 12, 1852, is for an amount of money covering the amount of the tax and costs for which the sale was made by the treasurer, John Gallagher, in 1850, together with twenty-five per cent redemption money additional thereto, and by its terms is in full redemption of the tract of land in Snyder township, Jefferson county, warranted in the name of John Barron, No. 4278, it shows a full redemption of the tract, and your verdict should be for the defendant. Answer: This point is refused.4 $ #J $:<- $ # $ The jury returned a verdict for the plaintiff, for the value of the timber cut and converted, $3,176, and for the value of the timber cut and not removed, $40. A rule for a new trial was discharged on May 17, 1888, the court, Wickham, P. J., filing an opinion which after reviewing the facts proceeded: Assuming'that Magee intended and undertook to redeem not only his own nine parcels but the Norman parcel as well, there is nothing in the evidence to indicate that either Norman, or Orr, the purchaser at the tax sale, assented to or in any way ratified his (Magee’s) act. Can it be said that Magee, contrary, perhaps, to the wishes of both Norman and Orr, and probably without their knowledge, could, by his unauthorized and unratified act, divest Orr of his title ? If so, then this is, perhaps, the only instance where, among persons sui juris, such power is lodged in the hands of a mere volunteer. It is argued for the defendant that where a tract of land owned by a number of persons in severalty is assessed as a whole, it must, if sold, be redeemed as a whole, owing to the difficulty the treasurer might find in justly apportioning each owner’s share of the tax. The same difficulty would be expe- . rienced, of course, before the sale, if one owner desired to pay Ms tax and save Ms property from being sold; and it would apply equally to seated and unseated lands, lienee, a blundering or knavish assessor might assess in one name and as one parcel a block of unimproved city lots worth a hundred thousand dollars, and owned in severalty by a score of people, and thus compel the owner of any one lot, if he desired to save it from sale, to pay the taxes on all, or to advance the taxes, costs, and penalty in order to redeem. It may, of course, be said that this is suggesting an extreme case; extreme cases, however, often best illustrate the law. Assessments are often made, as in the case here under consideration, in the names of former owners, and are not, for that reason, illegal. But where this is done, it follows that no notice is given to the true owner of his right to appeal, consequently the first official intimation he may have that his land is embraced or continued for taxation as part of a larger tract, as well as the first demand for payment, comes in the form of an advertisement of a contemplated treasurer’s sale. He should then have the right to tender his proper proportion of the taxes and relieve Ms land. I am aware of no statute or rule of law which clogs this right, or the right of redeeming, with the condition that he shall pay all the assessments on, perhaps, half the lands in a townsMp, because a lazy, careless, or uninquiring assessor has assessed them as a single tract, to one whose life and title were notoriously things of the past, ere the officer, who thus seeks to perpetuate both, was born. It is true that the act of April 28, 1806, provides that the owners of unseated lands shall furnish a description thereof to the county commissioners, but the penalty for failure to do so is quadrupling the tax on the land actually owned, and nothing more. Section 81, of the act of April 25, 1850, confers on joint owners, tenants in common, and coparceners the right to pay their proportionate shares of taxes before sale; and section 8, of the act of March 9, 1847, gives the same classes of owners the right to redeem their own interests after sale. It can hardly he supposed that the legislature would have failed or refused to extend the same measure of relief to owners in severalty, whoso lands were lumped for purposes of taxation, if the law, as it then stood, was deemed insufficient to protect them. It seems to me that the rale applicable to this latter class was clearly indicated in the case of McCord v. Bergautz, 7 W. 490. The view thrown ont by the Supreme Court in that case is, that “ where two own distinct parts, each or any one of them may redeem his own part.” The alleged difficulty in apportioning the amounts to be paid by each should not stand in the way of justice. In the. present case the treasurer must have found some method of solving the problem, as he accepted from McLaughlin the proportion of the whole amount of the taxes for which he was deemed properly liable. In Dietrick v. Mason, 57 Pa. 40, where two tracts, one seated and the other unseated, were assessed to the warrantee, and sold as one, the treasurer, in order to allow the owner of the unseated part to redeem, adopted a plan of apportionment, which seems to have been satisfactory to the court below and the Supreme Court. In a matter of'this sort, approximate accuracy is all that ordinarily should be required or expected, and with that we have to be satisfied in reaching decisions regarding many questions of fact. If the views herein announced are correct, it must be admitted that any attempt on the part of Magee to redeem more land than he owned would be, under all the circumstances of this case, sheer intermeddling and devoid of efficacy. It is undoubtedly true that he, or even a stranger, might pay the taxes on the whole tract before sale, and thus relieve it; but authorities need not be cited to prove that the inchoate title of a purchaser at a tax sale cannot be divested or stricken down by the act of one who neither has nor claims for himself, or as agent for the original owner, any right, title, or interest to or in the land. The purchaser can say to all outsiders, hands off, and the county treasurer has no power to deprive him of this right. The judgment in this case must be for double and treble damages. The plaintiff’s motion to this effect is opposed by the defendant, but the words of the statute are imperative and cannot be disregarded: Watson v. Rynd, 76 Pa. 59; Kulp v. Bird, 7 Cent. R. 576. And now, to wit, May 17, 1888, the defendant’s motion for a new trial is overruled, and judgment is directed to be entered on the verdict for the plaintiff, for the sum of $9,608, with costs of suit. Judgment having been entered as directed, the defendant took this writ, assigning as error, inter alia : 1. The part of the charge embraced in [ ] 1 8. The answer to plaintiff’s third point.3 4. The answer to defendant’s sixth point.4 The effect of the redemption by Magee in 1852, is the one question in the case which it is proposed to argue on this writ. 1. Until 1862, a part owner of a distinct portion of unseated lands was not authorized to redeem on any other terms than those imposed by the statute authorizing the sale. These terms are found in the act of March 13, 1815, 6 Sm. L. 301, and it could only be done by a legal tender of the amount of taxes for which the lands were sold and the costs, together with the additional sum of twenty-five per cent on the same ; this payment to be made to the county treasurer, who is required to receive it, and pay it over to the purchaser on demand. But the act of April 3, 1862, P. L. 228, authorized a redemption by one owning part of a tract, on paying the legal amount of the taxes assessed on so much of the tract as is included within the lines under which he claims to hold title. Neither Magee nor any one else had complied with the direction of the act of March 28, 1806, 4 Sm. L. 346, and returned the parcels he had acquired by the sale and conveyance to him, and until the act of 1815 was changed neither could redeem from the tax sale of 1850 save on the terms of redeeming the whole tract, whatever might be the nature of his interest or estate : McCoy v. Michew, 7 W. & S. 386. 2. If there be a hardship, it is the result of the failure of the owner to perform his duty to return his own parcel of land for taxation. That his duty was to return the land he claimed for taxation was pointed out in Harper v. F. & M. Bank, 7 W. & S. 212. The same point was ruled in Brettaugh v. Coal & Iron Co., 7 Amer. L. Reg. N. S., 109; Maul v. Rider, 51 Pa. 382. The county commissioners are bound to assess according to the original survey and as one parcel, unless an owner sees fit to return his land for taxation in parcels : Reading v. Finney, 73 Pa. 472; Morton v. Harris, 9 W. 326 ; Brown v. Hays, 66 Pa. 235; Heft v. Gephart, 65 Pa. 510. No personal liability arises by reason of subsequent occupation, nor can payment be enforced because of such occupation, however long it may have existed before the sale, or whatever may have been the improvements made upon the property: Robinson v. Williams, 6 W. 281; Murray v. Guilford, 8 W. 548; Riddle v. Bedford Co., 7 S. & R. 386, 390 ; Morton v. Harris, 9 W. 319. 3. The position that we assert in this argument, to wit, that the statute must be strictly followed in respect to redemption, is sustained by authorities elsewhere: State v. Schaaek, 28 Minn. 358 ; Boyd v. Holt, 62 Ala. 298 ; O’Reilly v. Holt, 4 Woods 650. Moreover, that a person, though entitled to redeem his own part under the act of 1862, may, if he see fit, redeem for all, as he was compelled to do before the act of 1862, was decided, under a similar statute, in Loomis v. Perigree, 48 Me. 312. Finally, the point here is simply this: By what act of assembly in 1850 could Magee have redeemed his land, sold for taxes, and upon what terms? Was it not by paying the whole of the tax for which the tract had been sold, with costs and twenty-five per cent additional ? Was he authorized to annul the sale on any other terms ? And did not the statute make that payment operate to redeem the whole tract ? 1. The act of 1862, cited by the defendant, was intended to provide for cases of interfering surveys only, where there are two or more conflicting titles or surveys covering part of the same land. In our case, on the contrary, there was no interference, no overlapping or conflict of titles, but simply an assessment of an entire tract as one, which previously had been divided into three several parcels. No implication, therefore, arises from the passage of that act that prior thereto there was no authority for one of two or more owners of several parcels to redeem his own land by paying his proportionate part of the redemption money. Such right, moreover, was expressly recognized, before the act of 1862, in McCord v. Bergautz, 7 W. 490. And in Die trick v. Mason, 57 Pa. 40, though decided after 1862, the redemptions in question were' prior to that act. These cases show that before the act of 1862, there was no rigid rule such as is asserted in this case. And again, the penalty under the act of 1806, for not returning one’s land for assessment, is confined to the fourfold tax provided by the act. 2. The inconvenience of proportioning is imaginary. It is a simple matter of calculation. In this case, the treasurer made an apportionment before the sale, in favor of David McLaughlin. The dictum of Justice Rogebs in McCoy v. Michew, 7 W. & S. 391, is no authority for the defendants’ contention, for the reason: (1) No question of redemption arose; (2) it was a case of interfering surveys, not of the subdivision of an entire tract; and (3) the learned justice was not speaking of the owner of one of several distinct parcels, but of the owner of one entire tract which, except 12 acres, was all covered by three distinct junior surveys, which had been separately sold for taxes. And a reference to Morton v. Harris, 9 W. 327, will show that the learned justice did not contradict what he had previously ruled in McCoy v. Michew. Nor is Maul v. Rider, 51 Pa. 383, an authority for the position urged, for the point decided was that a redemption by one tenant in common, under the circumstances of that case, was necessarily a redemption for both. 3. But how is a purchaser of a tax title injured by a redemption of the whole by a part owner ? He gets back his money with twenty-five per cent additional, for the part redeemed, and for the unredeemed part he gets the land itself; in either case, all he bargained for. He knows when he bids that he will obtain only an inchoate title, which may be defeated in whole or in part by many contingencies as to which he must take the risk. At any rate, if he does not complain of a redemption of a part of the land he bought, it does not lie in the moutli of a stranger to complain for him. “ When the purchaser himself has ratified an unauthorized act of redemption, who can be permitted to object to it ? ” Orr v. Cunningham, 4 W. & S. 298.
123 Pa. 95Hall v. White (1889)
ERROR TO THE COURT OE COMMON PLEAS OP MERCER COUNTY. No. 180 October Term 1888, Sup. Ct.; court below, No. 50 J une Term 1886, C. P. On April 8, 1886, J. N. White, and others, heirs at law of G. W. White, brought an action of assumpsit against Jesse Hall, doing business as tbe Hubbard Mining and Manufacturing Company, to recover tbe purchase money of certain coal property. Tbe defendant pleaded, non assumpsit, payment with leave. At tbe trial on March 29, 1888, it appeared that on January 2, 1888, the defendant, residing at Hubbard, Ohio, purchased a tract of coal land containing 124 acres, known as the Magoffin farm, in Pine township. Adjoining this tract on the east was the Richmond farm of 50 acres, and on the south and between the Magoffin and the Shenango & Allegheny Railroad was the W. G. White farm of 80 acres, the coal underlying both these farms being then under lease to the Mercer Mining and Manufacturing Company at a royalty of ten cents per ton, payable as the coal was mined. A controlling interest in the stock of the Shenango & A. R. Co. and of the Mercer M. & M." Co. was held by the same persons. On February 1, 1888, the Mercer M. & M. Co. assigned or sub-let to Jesse Hall both leaseholds with all rights and privileges connected with the coal under the said Richmond and White farms, the assignee binding himself to perform the covenants of the assignor, to mine and remove at least certain quantities of coal each year*, to pay to the landlord the royalty thereon, and to the assignor the further sum of five cents per ton of the coal as mined and removed. The plaintiffs, in their case in chief, having put in evidence the original lease from G. W. White to the Mercer M. & M. Co., dated February 27, 1880, and the assignment or transfer thereof to Jesse Hall, dated February 1,1883, with the resolution of the directors of the Mercer M. & M. Co. authorizing it, then offered in evidence the article of agreement dated February 3, 1883, between J. N. White and the other plaintiffs in the case, the heirs at law of G. W. White, deceased, and the Mercer M. & M. Co., signed by the Mercer M. & M. Co. by A. H. Steele, president, and by the White heirs, all under seal; to be followed by evidence showing that in executing this contract the Mercer M. & M. Co. acted as the agent of Jesse Hall. Objected to by defendant, first, because the present suit is between the plaintiffs and Jesse Hall, and this contract is between the plaintiffs and the Mercer M. & M. Co., a corporation that could act only by and through its official seal and organization ; and therefore it is res inter alios acta and incompetent and irrelevant: and, second, because a corporation cannot act as the agent of an individual in the purchase, acquisition or lease of any real estate, having only the capacity which is given by its organization; and therefore it is incompetent. By the court: Objection overruled.1 ■ By this contract, in consideration of $1 and the further sum of |125 per annum, the said heirs at law, who were the plaintiffs in this suit, demised to the Mercer M. & M. Co., for twenty years, 10 acres out of the White farm, described by metes and bounds, “ for the purpose of opening, mining and removing the coal and depositing thereon waste and refuse materials and erecting thereon all necessary buildings,” etc., with the refusal to the said company “ at their option to purchase said land at any time within 90 days from the date of this agreement, at $150 per acre, cash.Also, the said company agrees, while operating on the White farm, to mine and take out annually as much coal as they do from all other lands adjoining, until the coal is exhausted; ” and, for a certain consideration in coal to be delivered, the parties of the first part granted a „ right of way through other portions of said tract whereon to' construct a switch to connect with the Shenango & A. Railroad. The plaintiffs then followed with evidence tending to show that the defendant, residing out of the state, had as his general agent and the manager of his coal business in Mercer county, one D. H. Williams, who in his behalf negotiated for the assignment of February 1, 1883, with J. T. Blair and A. B. Steele, officers of the Mercer M. & M. Co. Williams testified that when lie read over the original lease of the White farm to the mining company, he observed that there was no provision in it for surface openings and privileges, which were absolutely necessary on account of the dip of the coal, and that when Mr. Blair’s attention was called thereto, he said, “ Yes, Í discover that now; 1 did not understand that before, and we’ll get you whatever privilege is necessary to make an opening; we’ll get that for you; I will see that it is procured; and with that understanding I took the lease.” It was then shown that about April 10,1883, the Mercer M. & M. Co., through Mr. Williams, arranged with the defendant that the latter should take possession of the 10 acre surface lease and proceed to open up his mines; and an agreement was made that the defendant was to grade the route of the switch connection, the mining company to furnish him the rails and ties, the cost thereof to be afterwards repaid by rebates on coal freights. It was also arranged, as was claimed, that the defendant should take the 10. acres under the option of purchase; and, on April 28, 1883, the mining company notified the White heirs “ that the said company will purchase said land according to the conditions of said agreement.” On March 21, 1883, a deed was executed by the White heirs to the Mercer M. & M. Co. for the 10 acres, which deed, however, was not then delivered. At a later date, the defendant made a contract for the grading of the switch, and on August 13, 1883, a paper signed by “ Hubbard Mining and Manufacturing Company, per D. H. Williams,” was served upon the White heirs which read: “You may give Mr. Muldoon the privilege to enter the 10 acre lot and do his grading. The deed will be taken up and the money paid over this week. The Mercer mining company will make us a transfer of title and all will be satisfactory.” On October 15, 1888, a notice signed by J. L. Gocbran was served upon the plaintiffs, which read: “D. H. Williams, agent of Jesse Hall, authorizes me to give notice to said Heirs that Jesse Hall is ready and willing to perform the whole contract in behalf of the Mercer M. & M. Co. and said heirs, dated February 8, 1883, and if said heirs refuse to accept, said Jesse Hall will bond them and proceed with the work.” Afterwards the work of grading the switch was completed, but the deed executed on March 21, 1883, was never delivered, because, as was alleged of an existing mortgage upon its property and franchises executed by the Mercer M. & M. Co. To meet the plaintiff’s case, the defendant introduced testimony to the effect that D. H. Williams had no authority to represent him in anything done with reference to the contract for the lease of the 10 acres, made on February 3, 1883, and that defendant never heard of said contract until about April 10, 1883, when, having tested the Magoffin farm with the drill, and found that he could open his mines upon his own lands, another railroad company made a proposition to build to him and take his coal, and then the Mercer M. & M. Co., to induce a connection with the Shenango & A. B,. Co., proposed to turn over to him their contract of February 3, 1883, and to furnish the ties and iron to track the switch, if he would grade the route, the cost of the ties and rails to be afterwards adjusted, which proposition was accepted. The defendant then proposed to prove by Mr. Williams, on the stand, “ that he went on in pursuance of the arrangement he made with Mr. Steele for the building of this road and the taking of this contract off the hands of the Mercer M. & M. Co., and he performed all his part, and that the other parties have utterly neglected to do anything.” Objected to, as incompetent and irrelevant. By the court: Objection sustained.8 The court, Mbhaiid, J., after reviewing the testimony, charged the jury as follows: The testimony of Mr. Williams and the testimony, perhaps, of Mr. Blair or Mr. Steele, or some of the other witnesses on behalf of the plaintiff, is to the effect that these negotiations for the sub-letting of the eighty acres of coal land, and for tbe acquiring of further privileges upon part of that land, to enable them to put down a shaft and do other wort and put other constructions there for the mining of coal, were part and parcel of the same transaction; that they were all one and the same, and [that the company by its agents, who were conducting the affair for them, agreed that they would get the rights and privileges which Mr. Hall should desire upon that part of the land. If that be so, it is argumentative, and strongly so, to the effect that what the company did thereafter, they didnot for themselves, but for Mr. Hall; and yet, as Mr. Hall was not present at that time, if he gave no authority for them so to do, he would not be bound by it, unless he ratified what was done without authority at a subsequent time. But if he did ratify subsequently what was done at that time without his express authority by accepting its benefit, then he would be as much bound by it as he would if he had authorized it before it was made. Now in the subsequent transactions which resulted in the making of ■ the agreement of February 3,1883, who, does it appear, according to your convictions, was the real beneficiary in the lease ? Whom was the lease being made to, and to whom was the option of sale being made ? And by that I do not mean in the intent of the White heirs, but as between the Mercer M. & M. Co. and Mr. Hall. Was the company then acting for itself to procure rights and privileges for itself, or was the company by its agents acting then to procure rights and privileges for Mr. Hall under his direction or under his subsequent ratification. If the company were procuring privileges for themselves and for their own right, it would be a very different matter than it would be if they were acting for Mr. Hall and procuring privileges for him under an agreement previously made that they would do so.] 3 At the time of the original agreement or the sub-lease on February 1,1883, Mr. Williams states that it was essential, as they considered, to the enjoyment or the use of the eighty acres, that they should have the rights and privileges for making an opening, etc., upon a part of that eighty acres of land. If that be true, that they so considered, and if that agreement was made by the authority of Mr. Hall, given at the time or prior thereto or subsequently ratified by him, and if Mr. Hall entered into possession of the land and made improvements upon it under tbat agreement, be could bold the land against the Mercer M. & M. Co., and if be were the real party who was negotiating there and whom the company represented, be would be bound by their agreement; or, if he subsequently thus entered into possession of the land and promised to pay the purchase money which was not yet due, and made improvements upon it, and the land was purchased by the company for him, that would likewise bind Mr. Hall in this suit and he would be responsible. It is true Mr. Hall would not be liable in this suit if he was not in a position to claim the land and to hold the land which he entered into possession of. If there was no right on his part to hold this land, there would be no right on the part of the plaintiffs to recover from him the purchase money for it. But if the facts which I have stated as being sufficient to enable the plaintiffs to recover for this land, are shown by the evidence, Mr. Hall could hold the land and his responsibility for the purchase money would be fixed. [There is one fact to which you should direct attention, and it has been presented to you by the counsel upon both sides, and it is this: Whether the company at the time of the closing of the negotiation on February 1, 1883, undertook, without pay from Mr. Hall to the Whites or anybody else, to acquire the rights and privileges which Mr. Hall desired. If that was the agreement between the parties, Mr. Hall would not be hable in this suit; but if the agreement then was that the company or its agents would procure an agreement from the Whites for Mr. Hall, securing to him certain privileges, but that he would fulfil the conditions of the agreement, then that would be such an agreement as, with the other facts presented, would entitle the plaintiffs to recover in this case.] 4 Now, how was that? Was it the agreement between the parties that Mr. Hall should have those privileges without paying anything for them? Was that part of the matters for which he already paid in the agreement of February 1, 1883, or was the company’s obligation merely to act for him in getting those privileges, but that he would pay whatever they would cost to the Whites ? The evidence does not disclose, so far as I recall it, that anything on that subject was said on the day of the transfer, to wit, on February 1,1883, and what the agreement of the parties was, you must discover from the other evidence in the case, and an interpretation of that agreement, or, the agreement in that particular can be had by the subsequent conduct of the parties. Did they in their subsequent treatment of this article of February 8, 1888, treat it as though the Mercer M. & M. Co. were to pay what was to be paid for the rights and privileges to be acquired in that land, or that Mr. Hall himself was to pay therefor ? I believe that with the answers to the defendant’s points in the ease the instructions given to you will cover this case, and I will not undertake a discussion of the evidence. The defendant has submitted the following requests for instruction : 1. The court is requested to instruct the jury that all contracts in regard to the sale of real estate, to be binding on the parties, must be in writing and signed by the parties to be charged. Answer : This is a correct statement of the law, but it is not necessary that both the vendor and the vendee should sign the contract. It is sufficient if the vendor sign the contract. The vendee can be bound by a verbal promise to accept the land and pay for it. With this explanation this request is affirmed. 4. That all the writings in this case, to wit, the article of February 8, 1888, the notice of April 28, 1883, and the deed offered in evidence, are between the plaintiffs and the Mercer M. &. M. Co.,-and create a subsisting, binding contract between said parties for the subject-matter. Answer : It is true that those writings are in form between the parties named in this request, but if the Mercer M. & M. Co. were acting there for Mr. Hall, and were in fact his representatives by authority previously given or subsequently sanctioned, then, while the form of the papers is that of agreements between the company and the Whites, the plaintiffs, the real party would be Jesse Hall. At the time those papers were made, if the plaintiffs did not understand that the Mercer M. & M. Co. were representing Mr. Hall, then the plaintiffs had the right to hold the Mercer M. & M. Co. to the agreements which they made in those papers. But if the plaintiffs are right in alleging that Mr. Hall was the real party, and they have elected to seek their remedy as against him, then whether the company is liable or not is an immaterial fact. If Mr. Hall was the real party, and tbe other facts stated to be essential to the plaintiffs’ recovery are found in the plaintiffs’ favor, your verdict would be in favor of the plaintiffs, whether the company could still be sued or not. Of course the plaintiffs could not sue and recover twice. If they recover from Mr. Hall they cannot recover from the company. That would be a matter between the company and Mr. Hall.5 5. That there is no written contract between the plaintiffs and the defendant in this suit in regard to the purchase of the said land and the payment of the same. Answer: There is no written contract which appears in the name of Mr. Hall in this case, but the allegation of the plaintiffs is that the contract which is in writing and signed by them is also the contract of Mr. Hall. Whether that be true is a question of fact for you to determine.6 6. That there is no written contract or agreement between the plaintiffs and the defendant by which the defendant bound himself to pay the plaintiffs the debt of the Mercer M. & M. Co. under the contract of February 3,1888. Answer: This request is affirmed. The promise which the plaintiffs rely upon is in effect a parol promise; because, while they ask you to find that these notices are a promise upon the part of Mr. Hall to pay this money, yet, inasmuch as they are not signed by Mr. Hall himself, they are not what is termed in law a writing by Mr. Hall, they are still parol. But a written promise is not essential; a parol promise is sufficient, if you find the other facts which we have stated will warrant a recovery by the.plaintiffs.'7 7. That the parol evidence offered in this case to contradict and vary the terms and conditions of the written papers offered by the plaintiffs, is not sufficient nor of that character that would justify the court in submitting the same to the jury. Answer: This request is refused.8 8. That the tender of a deed to defendant would be a condition precedent to the right of plaintiffs to recover in this case. Answer: We do not conceive this to be essential at this stage of the proceedings. Justice can be secured to the defendant, if a deed is necessary, or whatever deed may be necessary, between the time of rendering the verdict and the time of giving judgment, if your verdict should be in favor of the plaintiffs.9 The jury returned a verdict in favor of the plaintiffs for $>1,934.50. A rule for a new trial having been granted, on March 18,1888, the court filed an opinion, by which, citing and considering Grove v. Hodges, 55 Pa. 504; Hefferman v. Addams, 7 W. 116; Smith v. Warden, 19 Pa. 424, and Warden v. Eiehbaum, 8 Gfr. 42, the rule was discharged. Judgment having been entered upon the verdict, the defendant took this writ, assigning as error: 1. The admission of plaintiffs’ offer.1 2. The refusal of defendant’s offer.8 3. 4. The parts of the charge embraced in [ ] 3 4 5-9. The refusal of defendant’s points.5 *° 9 1. Had the contract of February 3, 1883, been in the name of the defendant, then the question of the authority of the agent or of the defendant’s subsequent adoption or ratification would have become an important and controlling element. That contract was certainly res inter alios acta, and we submit that the mining company could not act for any person as agent in purchasing or leasing real estate. Whatever the officers of the company did, in the corporate name and under the corporate seal, was done for the corporation and vested title in it which could only be transferred by corporate action duly had. Moreover, ratification can only be predicated of something done before, in the name of the person ratifying the transaction. It cannot be predicated of an act done for another and in another person’s name, a stranger to the person ratifying. A stranger to a transaction for real estate cannot by parol adopt or ratify such transaction, so as to have rights or incur liability under the same. 2. If not a party in fact to that contract, nor yet bound by any subsequent written agreement to pay the plaintiffs, how is he liable? Can a written contract between A. and B. for land, become a contract between A. and C. for that land, or can C. become a party thereto so as to be liable to A. for the consideration, except by a written contract with B. to pay his debt to A ? We concede he cannot hold the land from A. and that A. can dispossess him by ejectment, but that is not the question. Even if C. were to take possession under B.’s contract, that would not make him personally liable to A. C. being a stranger to the contract between A. and B., not a party thereto, and that contract being for land, he could obtain no interest therein except by writing signed. And the consideration being the debt of another, B., C. could not be liable for it to A., except by writing duly signed. 8. Our eighth point, that the tender of a deed would be a condition precedent to the right of plaintiffs to recover, should have been affirmed. Had this been an action of covenant by the plaintiffs, would they not have been compelled to tender a deed before suit brought ? And that from the very nature of the transaction, not from the form of the action, but because they would have no right of action until performance or tender of performance on their part. Why should any different principle apply when the action is assumpsit ? 1. That the Mercer M. & M. Co. acted as the agent of the defendant in the contract of February 8,1883, is not open for discussion; the jury upon sufficient evidence properly submitted have so found. 2. It was not necessary that the contract should be signed by Jesse Hall to bind him for the purchase money. All that was required on his part was to accept its terms and conditions and take possession of the land. “ Neither the British statute nor ours requires that the written agreement or memorandum of sale should be signed by both parties.It is, then, only the lessor or grantor who is required to sign the agreement. His contract must be in writing and signed by him, but the statute requires no written evidence of the engagement of a lessee or grantee: ” Tripp v. Bishop, 56 Pa. 428; Swisshelm v. Swissvale Laundry Co., 95 Pa. 367. Nor was it necessary that the defendant’s election to purchase the land, under the option given in the contract, should be in writing: Smith’s App., 69 Pa. 480.
123 Pa. 106Borough of Sharon v. Hawthorne (1889)
ERROR TO THE COURT OF COMMON PLEAS OE MERCER COUNTY. No. 164 October Term 1888, Sup. Ct.; court below, No. 71 March Term 1888, C. P. On March 8, 1888, it was agreed between the borough of Sharon, as plaintiff, and S. W. Hawthorne, as defendant, by a paper filed as a case stated in the nature of a special verdict: 1. That the burgess and council of the borough of Sharon on December 5,1887, enacted an ordinance “ to regulate hawking and peddling in the borough of Sharon,” whereby it was provided inter alia, as follows: § 1. That, from and after the passage of this ordinance, it shall be unlawful for any person, or persons, to sell or offer for sale, within said borough, as a hawker, peddler, traveling-merchant, or agent, either by sample or otherwise, any garden, farm, or dairy products, or any other foreign or domestic goods, ware» or merchandise, without having first obtained from the burgess of said borough a license so to do, and paying him therefor the fee as hereinafter provided. § 2. The fees to be paid for licenses under this ordinance shall be as follows, viz.: For license to peddle garden, farm, or dairy products, market produce, two dollars per day, four dollars per week, or fifteen dollars per year, at the option of the applicant. * * * * * * * * Provided, That this ordinance shall not apply to persons selling, or offering for sale, the products of their own garden, or farms. § 3. That any person, or persons, who shall violate any of the provisions of this ordinance shall, upon conviction thereof before any justice of the peace within said borough, be fined by said justice in any sum not loss than five dollars nor more than fifteen dollars, besides all the costs of prosecution, for each offence; the said fines to be collected as debts of a similar amount are by law collected. 2. That Samuel W. Hawthorne, the defendant in this action, is a resident citizen of Mercer county; that he purchased butter, eggs and other farm products, and sold the same from house to house in said borough of Sharon after the passage of the above recited ordinance. 3. That said defendant has not paid any mercantile tax to the treasurer of Mercer county, nor has he a peddler’s license under the laws of this commonwealth, nor has he taken out a license from the authorities of the borough of Sharon by virtue of said ordinance, or paid any other consideration for the privilege so exercised by him. 4. That the said Samuel W. Hawthorne has no regular place of business in said borough. Now, if the court be of the opinion, etc., On August 25, 1888, the court, Mehaiid, P. J.,filed an opinion in which it was ruled that the act of April 13, 1869, P. L. 890, relative to hawking and peddling in Mercer county, providing “ That any resident citizen may, without other than a United States license, peddle farm, garden, and dairy products within said county,” was a protection to the defendant, under tbe facts of the case stated, from the penalty provided by the said ordinance. Judgment was therefore entered for the defendant with costs. The plaintiff then took this writ, assigning said judgment upon the facts stated, as error. 1. If the power of boroughs to impose license regulations on the business called hawking and peddling, were questioned, authority on the point might be found in Warren Bor. v. Geer, 117 Pa. 207: The power is also recognized by the act of May 17,1883, P. L. 31, restricting the authority of boroughs in that regard. The power to impose license regulations having been once delegated to boroughs, it remains of course until taken away by the legislative power, either by express words or by necessary implication. There is no express repeal, nor does the act of April 13, 1869, P. L. 890, repeal by implication. The law does not favor repeals by implication: Brown v. County Commissioners, 21 Pa. 43. One act is held to repeal another by implication, only in cases of very strong repugnance : Commonwealth v. Easton Bank, 10 Pa. 442. 2. The rule applies with especial force to the repeal of laws governing municipalities. A grant of power to a municipality is always considered as additional to the power of regulation exercised by the state: Dillon on Mun. Corp., § 54. The act of 1851 is, properly speaking, the charter of all boroughs that have accepted its provisions. A general statute, repealing all laws contrary to its own provisions, does not repeal a clause in a municipal charter on the same subject: State v. Branin, 3 Zabr. N. J. 484; Dillon on Mun. Corp. § 54. Municipal corporations are institutions designed for the local government of cities and towns; and the very object of granting to them corporate charters is to clothe them with power to regulate those matters which can better be left to local government than to state legislation. It is fair to presume that the act of 1869, means what it says, — that resident citizens of Mercer county may peddle farm, garden and dairy products, anywhere in the county, without any other than a United States license. In order to give it this effect, or indeed any effect, if the plaintiff’s position is correct, it must be that by necessary implication the act of 1869 repealed all prior laws, whether restraining, regulating or prohibiting the peddling of the articles in question, as far as regards the class of persons described, and within the territory named. Any other construction would defeat the evident purpose of the act.
123 Pa. 110Staib v. Hayes (1889)
FROM THE DECREE OE THE COURT OE COMMON PLEAS OE WASHINGTON COUNTY, IN EQUITY. No. 101 October Term 1888, Sup. Ct.; court below, No. 370, in Equity. On September 11, 1882, Lewis Staib filed a bill in equity against W. S. B. Hayes, in substance for the partition of certain coal lands, to restrain the continuance of unlawful mining on the part of the defendant and for an account of coal mined a,nd removed. On January 8, 1888, the defendant filed an answer, and issue being joined, Mr. John U. Murdoch was appointed examiner and master. On February 8, 1883, before any testimony was taken, the defendant filed a cross-bill, to which the plaintiff answered, and issue was joined thereon. The draft following will illustrate the controversy, although the lines are not drawn to scale. The facts and the questions arising thereon will best appear from the master’s report, filed July 26,1887, which, so far as relating to the case as decided, was as follows : The original bill was filed August 8, 1881, upon which a preliminary injunction was granted which was dissolved upon hearing on the strength of the injunction affidavits presented by the defendant. Subsequently the plaintiff, by leave of court, filed an amended bill, upon which he again asked and obtained a preliminary injunction which was in turn dissolved upon hearing. On January 8, 1883, the defendant made answer to the bill, and upon the filing of a replication, the court on January 15, 1883, appointed the master and examiner. On February 3,1885, before any testimony had been taken under the original bill, the defendant, W. S. B. Hayes, filed a cross-bill against the plaintiff, Lewis Staib. To this cross-bill Staib made answer March 24, 1885, and after replication the court on August 24, 1885, enlarged the powers of' the master “ so as to include the matters at issue under the cross-bill. ” The testimony was adduced and taken as if the pleadings were simply an original bill, an answer and a replication. As the master understands the rules, of equity practice and pleading, this cause is to be heard and determined as one cause. The cross-bill having been filed before any proceedings were had under the original bill, the whole cause, as shown by all the pleadings and the testimony offered in support of the allegations of the parties, is considered together, with the same effect as if there were but one bill, one answer and one replication ; except that upon his cross-bill the defendant may have specific relief, if he shows himself entitled to it: Story, Eq. PL, § 395; Daniell’s Ch. PL & Prac. 1553, 4th ed.; Randolph’s App., 66 Pa. 183. The allegations, in brief, of the original bill are as follows : That the plaintiff Staib and the defendant are the owners of a certain trad of coal land containing 200 acres, the purchase money of which, so far as paid, has been paid equally by both parties; that against the remonstrances of the plaintiff the defendant has entered upon said tract of coal and mined and carried away large quantities of coal therefrom and refuses to account to plaintiff therefor; that plaintiff is the owner of two other tracts adjoining the 200 acre tract aforesaid, in one of which the owner of the 200 acre tract has certain privileges, as appurtenant to said tract of coal, for airing, draining and driving a main entry, the exercise of which privileges is not to obstruct or hinder the owner of the servient tract from mining and conveying away his own coal; yet that defendant has exceeded. any privileges which are appurtenant to said 200 acre tract, has removed and converted to his own use large quantities of coal from both tbe aforementioned tracts, containing 64 and 97 acres of coal respectively, and that the trespasses of the defendant have done and are still doing great damage to the plaintiff and to his property. The relief prayed for was restraint, discovery, account, damages for the injuries to the plaintiff’s properties, and partition of the 200 acres of coal alleged to belong to both parties. The defendant Hayes in the first paragraph of his answer denies that plaintiff has any “title, legal or equitable,” to the 200 acre tract of coal, except that defendant has agreed by parol to convey him a certain portion thereof upon certain conditions with which plaintiff has not complied; that one of these conditions was that Staib was to procure title to the defendant Hayes for the 64 acre tract of coal. He further alleges that if Staib owns the 64 acre tract he has acquired title in pursuance of said parol agreement. He denies any aggressions or trespasses in either the 200 acres or the 64 acres, and avers that he has done nothing in either which he did not have legal right to do. He admits a trespass by mistake upon the 97 acre tract, but alleges that it was prior to the time plaintiff became, if he is, the owner thereof, and alleges further that plaintiff has since that time mined across the line upon defendant’s coal' and taken away a still greater quantity of coal than that taken by defendant. And generally he denies the making of any aggressions upon plaintiff’s rights. The allegations of the cross-bill present more fully and clearly the positions of the defendant in this case than does his answer. In it he avers that in the month of October, 1877, the plaintiff and the defendant were the owners respectively of two contiguous coal properties, and at that time a tract of 200 acres of coal in the rear of and adjoining both of said properties, was exposed to public sale and was purchased by the defendant Hayes at $76 per acre and that he holds the deed therefor dated February 6, 1884. That “ at or about the time of said sale and purchase it was verbally agreed ” that the plaintiff Staib “should pay a proper proportionate part of said purchase mpney ” and should purchase and convey to Hayes the 64 acre tract at a sum not to exceed $76 per acre, whereupon Hayes should convey to Staib such a portion of the 200 acre tract as would be cut off by an extension of tbe division line of tbe two contiguous tracts first mentioned, the respective portions of purchase money to be ascertained by a survey of tbe property. He further avers that be, Hayes, has paid the purchase money of the 200 acres, the plaintiff, Staib, “ having from time to time paid him sundry sums of money on account of his proportion of said purchase money under the said agreement ; ” that the plaintiff, Staib, has acquired title to the 64 acres but repudiates the agreement and refuses to convey said coal land to the defendant. He also alleges that, in pursuance of the rights and privileges appurtenant to the 200 acres and of his parol agreement with Staib, he has at great expense driven a main entry and many cross entries into the 64 acres and is now ready to operate said tract of coal. Averring his willingness to comply with his agreement he asks that the agreement be established of record and Staib compelled to carry it into effect, or otherwise that it be annulled and Hayes declared to be the sole owner of the 200 acre tract of coal. Staib’s answer to the cross-bill contains distinct denials of all its. averments and introduces no new matter. It is apparent upon an examination of the bills and answers that the case naturally divides itself into two principal parts or questions, viz.: (1) what was the agreement or arrangement between tbe parties, with respect to these coal properties; and (2) has the defendant been guilty of any trespasses upon plaintiff’s rights, which have caused an injury to him or his property and, if so, what damages is the plaintiff entitled to receive on account of such injury. 1. It is admitted by the pleadings that some agreement or understanding did exist in relation to the 200 acres of coal. The plaintiff’s allegation is that it was an arrangement for a joint purchase of the property and for the joint and equal benefit of both parties. On the other hand, the defendant, denying that the plaintiff has any title, legal or equitable, to the coal land, alleges that the coal was purchased by himself and that at or about the time of the purchase he made a parol agreement to convey a certain portion of it to the plaintiff. The first paragraph of the defendant’s answer and the second paragraph of his cross-bill would appear to convey the idea that the defendant first became the purchaser of the property and after the purchase was made agreed by parol to divide with the plaintiff. following facts appear by the evidence before us. Under partition proceedings upon the estate of Robert Robison, deceased, George T. Work, then sheriff of Washington county, was appointed trustee to make sale inter alia of certain coal lands lying near the Monongahela river in said county. On October 2,1877, the trustee exposed to public sale a tract of coal and surface fronting on the. river and which adjoined a coal tract of 97 acres belonging to Lewis Staib, the plaintiff. W. S. B. Hayes, the defendant, became the purchaser of this front tract. There was also exposed for sale the 200 acre tract of coal, now in controversy, which lies directly back of the 97 acres belonging to the plaintiff, and the front coal and surface bought by the defendant. It also adjoins the 64 acre tract mentioned in the bills and answers, and known as the Wickerham Reserve Coal. When the 200 acre tract was put up for sale both the plaintiff and the defendant became bidders upon it, the plaintiff bidding for himself and the defendant, though present, bidding through Thomas S. Hutchinson. It appears that there were no others bidding upon the property. The two parties competed until the bids reached $74 per acre, the last bid being that o.f Staib, the plaintiff. At this point the bidding stopped for some reason, and Thomas S. Hutchinson approached the plaintiff and proposed the making of some arrangement, by which each could obtain part of the property and the price be kept down. At his suggestion the plaintiff and defendant came together and made some agreement. Bidding was then resumed and the property was finally knocked down at $76, upon the bid of Mr. Staib. The master is unable to find from the testimony whose name was announced as the purchaser. Subsequently, but on the same day, the two parties, in company with the trustee and Mr. Hutchinson, met at Monongahela City, where the ten per cent of purchase money required by the terms of sale was paid, one half by each, and a receipt for the whole amount taken in the name of Staib. By direction of the parties, the trustee returned the sale as made to Mr. Hayes and it was duly confirmed by the court. The balance of the first instalment of purchase money was paid equally by the two parties on plaintiff paid his full half and $120.67 additional, the balance being paid by the defendant. The difficulty between the parties having arisen before the [next and] last payment was made, the plaintiff did hot pay his half of it, although he attempted and was ■ ready to do so, and after these proceedings were instituted the defendant paid the balance of the purchase money and received a deed for the property. The agreement between was was present when it was made except Hutchinson, who was acting as the friend of the defendant. The testimony of all the witnesses shows that whatever the agreement was, it was made before the property was purchased by anybody. It could not therefore have been what the defendant’s answer and cross-bill would seem to indicate, a parol agreement by the defendant to sell and convey to the plaintiff, but it was, — and the master so finds as a fact from all the evidence, — an agreement to make a joint purchase of the land for the use and benefit of both parties. The evidence also clearly establishes the fact that in pursuance of the agreement the plaintiff bid the property to $76 and that both parties were interested in the purchase. And although the deed was subsequently made to the defendant, the beneficial ownership was in both, which is in accordance with the claim made by the plaintiff in the first paragraph of his bill. This appears to the master to be, so far, a sufficient answer to the position assumed by the defendant’s counsel upon the argument, viz.: that the allegation of the first paragraph of the bill was at variance with the proof and that the bill could not, for that reason, be sustained. The next question to be determined is, how was the land to be divided between the purchasers, or in what proportions did they agree to hold it. On this point the testimony on one side and on the other sharply disagrees. Here the burden of proof is upon the plaintiff to sustain his version of the agreement by the evidence of two witnesses or one witness and corroborating circumstances, for the answer of the defendant, though not as Clear as it might be, is sufficiently responsive to put the plaintiff to his full proofs. The plaintiff alleges that the 200 acres, being jointly purchased, was to be divided equally, each party taking 100 acres in the rear of his own river front property. The defendant’s answer is silent on this point, but in his cross-bill he alleges that the division line agreed upon was an extension or prolongation of the medial line between the two front properties. Divided by such a line the parts would be unequal, the defendant getting between sixteen and seventeen acres more than the plaintiff. The plaintiff himself testifies that he intended to buy the whole 200 acres for himself, but that the defendant and Hutchinson approached him and proposed a joint purchase and a division of the property for the purpose of keeping down the price, and thus far he is corroborated by all the evidence on the subject. lie also testifies that the only division proposed and the one agreed upon, in case the purchase should be made, was an equal division and that they were to pay and, up to the time of disagreement, did pay the purchase money in equal proportions. It is claimed, however, that the plaintiff’s testimony should not be believed, because he is contradicted not only by the defendant and Hutchinson, but also by his own witness Sheriff Work, as to the time of the conversation between the parties. Staib stated, although he afterward admitted the possibility of mistake, that the arrangement was made before the front tract was sold. Tbe sheriff only saw the parties consulting once and that during the crying of the sale of the 200 acres. The master is of the opinion that Mr. Staib is mistaken as to the time the agreement was made, but he declines to give this apparent contradiction the weight and importance asked for it. The time of the conversation is a matter of no special consequence: the real matter is what did the parties agree to do. In his cross-bill the defendant avers that the proportionate amount of purchase money to be paid by each was to be ascertained by survey, but none of the witnesses testify that that was part of the agreement, and the defendant upon cross-examination admits that, although the parties began and continued to pay the purchase money share and share alike, there was nothing said about refunding a ratable portion of the purchase money in case the division should give one party more of the coal than the other. [The fact that the plaintiff paid the half of the purchase money and that the defendant permitted him so to do, is strong evidence that it was the contract that he should so pay, and the master finds as a fact established that such was the contract.] 8 Other circumstances relied upon by the plaintiff to sustain his version of the contract have already been found as facts, viz.: the sale was an open public sale, the two parties were the only competing bidders for the property, and the purchase of the property was a joint purchase. Neither party then had anything to give or anything to receive as between themselves; each stood on an equal footing; each wanted the property, or was willing to take a part of it, at as low a figure as possible. There was therefore no reason why either should enter into an agreement by which he might eventually be compelled to pay for one hundred acres of coal and only get eighty or eighty-five. The only consideration for their agreement was mutual abstaining from bidding and this was as much for the benefit of one as of the other. [The master is of the opinion that this testimony and these circumstances together come up to the full measure of proof required by the rules in equity, and unless overborne by the evidence for the defence, will sustain the position of the plaintiff upon the point under consideration.] 3 According to the testimony of the defendant and of his employee and agent, Thomas S. Hutchinson, the plaintiff wanted only so much of the 200 acres as lay directly in the rear of his own 97 acre tract and that was all he was to get in any event; that neither the defendant nor Hutchinson knew where the lines were and did not know how such a division would leave the respective purparts, although it is intimated that the plaintiff may have known. The inherent' improbability of the defendant’s version is, in view of the facts, most glaring. It appears not only improbable, but almost impossible, that the plaintiff, with knowledge of the lay of the land, should without any consideration agree to pay for half of the land and yet take over 16 acres less, or that the defendant without any knowledge of the effect of prolonging the Victory line straight through the 200 acres, should agree to do .so and still pay the full half of the purchase money, and that nothing should be said on either side about adjusting any possible difference in the quantity of land by a v refunding of the money. It is claimed on behalf of the plaintiff that both the defendant and Hutchinson have contradicted themselves so greatly as to the nature and terms of the agreement, that their credibility is seriously affected. It is charged that in his sworn answer and cross-bill the defendant sought to convey the impression that the only contract between the parties was a parol agreement on his part to sell to the plaintiff a portion of the 200 acre tract. This is rendered almost certain by an examination of the injunction affidavits made by the defendant. Thus on August 12, 1881, he says upon oath: “After the respondent became the purchaser of the said two hundred acre tract of coal at the trustee’s sale in the said partition proceeding, he made a verbal agreement to sell the complainant a certain part of the same which be is advised that it is unnecessary to set forth for the reason that, if the complainant alleges there is a breach thereof, he has an adequate remedy at law.” And on September 28, 1882, the defendant made another affidavit in which he asked that the statements of the former affidavit might be considered part of the one then made. On the same day Tilomas S. Hutchinson made affidavit that lie had examined both of the defendant’s affidavits “ and that the facts therein stated are true as he verily believes.” Our attention lias also been called to the contradictory statements of the defendant in the sixth paragraph of his answer and the first paragraph of his cross-bill on the subject of plaintiff’s ownership of the 97 acres. If the plaintiff was, as the cross-bill alleges, the owner of that tract in October, 1877, and the defendant knew that fact, then the sixth paragraph of this answer, in which he alleges that his trespass on that tract “ prior to January 1, 1880” was “before the plaintiff became, if he is, the owner of the 97 acre tract,” was untrue. We are also asked in this connection to consider the rather remarkable affidavit made by Hutchinson and presented before the master July 27, 1886, the evident purpose of which was to prejudice the case of the plaintiff and which was shown to be baseless by the joint survey made under the master’s direction. These are all matters proper to be considered in determining what weight should be given to the testimony of these two witnesses and they certainly cast a cloud upon their testimony. To corroborate the testimony of himself and Mr. Hutchinson on this point, the defendant called J. A. Brokaw, a gentleman wbo makes bis borne with Mr. Hutchinson, and wbo testifies to two conversations between tbe plaintiff and Hutchinson, said to have occurred five or six weeks after the purchase of tbe 200 acres, in the course of which it is alleged that the plaintiff admitted that the division line was to be a prolongation of the Victory line, and also that plaintiff was to procure title to the 64 acres for the defendant. This witness makes the plaintiff say that he wants the “ difficulty settled ” without a lawsuit, to which Hutchinson replied that it could be settled by the plaintiff securing title to the 64 acres and then the line would be run straight through; but according to the defendant’s story that was the original agreement, and according to both Brokaw and Hutchinson the plaintiff was not calling that in question. What then was the difficulty, unless it was, as the witness afterward states, “about changing the line.” Hutchinson testifies to the same conversations, but he says that there was no difficulty spoken of nor was there at that time any misunderstanding between the parties. Accordipg to his testimony the plaintiff wanted some written evidence of his interest in the purchase, in order that he might make some business use of it, to which Hutchinson says he replied that that was not necessary and, very irrelevantly, proceeded to state over his version of the agreement and thus drew out an admission from the plaintiff. The vagueness- of Brokaw’s testimony, in the absence of his memorandum, made so strangely at Hutchinson’s suggestion, and the unnaturalness of the story as detailed by Hutchinson, lead the mind to hesitate over allowing such evidence to turn the scale in so important a mat-. ter, and we decline to give it that weight. [In view of all the testimony and the facts and circumstances, the master finds that not only was the purchase joint, but also that the purchasers were to hold equal interests in the property.] 4 This brings us in natural order to a consideration of the question whether or not the division of the 200 acres between the parties, was conditional upon the plaintiff acquiring title and conveying to the defendant the 64 acre tract adjoining the 200 acres. This 64 acre tract belonged to William Wickerham and according to the testimony was not for sale at the time of the transactions under consideration. After the death of William Wiekerham the coal was purchased by the plaintiff, at the rate of $100 per acre, by agreement dated September 25,1880. In his cross-bill the defendant charges that it was part of the agreement between himself and the plaintiff that this coal should be purchased for him and that he is informed and believes that the plaintiff has acquired title thereto in pursuance of said agreement. He insists that this was an important part of the consideration moving him to agree to convey part of the 200 acres to the plaintiff. Substantially the samo facts are averred in the second paragraph of the answer, but this averment was not responsive to anything contained in the bill. As the equity of the defendant and the specific relief for which he prays depend upon his establishing the truth of this part of the transaction, the burden of proof is upon Mm to make it out. This he attempts to do by the testimony of himself, Hutchinson and Brokaw, the last witness testifying, as already stated, to alleged admissions by the plaintiff. Mr. Hayes testified: “When it came to selling Purpart B, which was the 200 acres, Mr. Hutchinson bid for me also. Ho and Mi1. Staib bid it up to, I think, $74 an acre, and they stopped for some reason or another, foi' some time.It stopped for some time and Mr. Staib and Mr. Hutchinson got to talking about bidding against one another, and they both came over to me and we agreed there to not bid against one another and to bid it in.Whatever was above the Victory line I was to deed to Mr. Staib, and he was to purchase the sixty-four acres of the Wiekerham Reserve Coal and deed it to me.” Q. “ At what price ? ” A. “ At $76 an acre; at the same price this was bid off, whatever that was: at the same price as the two hundred acres.” Upon cross-examination he was asked whose money was to be used in purchasing this coal. He answered, “ There was nothing said about money. He was to purchase it and deed it to me. There was nothing said about money at all.” He gives as a reason for not himself buying the Reserve coal that it was not up for sale. The testimony of Hutchinson is to the same effect as that of the defendant. When the plaintiff, Staib, executed the article of agreement for the purchase of the 64 acres he added to his signature the words “ attorney in fact,” from which it is argued that even at that date he recognized the obligation of his agreement with the defendant and was purchasing for him. But the defendant never constituted the plaintiff his attorney in fact for that purpose ; on the contrary, according to defendant’s own testimony, the plaintiff was to purchase and convey to him. No reason is assigned in explanation of this addition to the plaintiff’s signature, but we are unable to see any connection between -this fact and the alleged contract. According to the plaintiff’s story, at the time arrangement was made for the purchase of the 200 acres, it was also arranged that plaintiff should endeavor to buy the 64 acres, and in the event of his succeeding in so doing, he would convey that tract to the defendant and the 200 acres and the 64 acres would then be equally divided, each receiving 134 acres. He denies that, beyond this, the 64 acres had anything to do with the purchase of the 200 acres, or that his right to have the portion of the 200 acres for which he paid was in any way conditioned upon his obtaining title to the 64 acres. We have already found as a fact that no executory contract existed between the parties with reference to the 200 acres, but that they by mutual consent made a joint and equal purchase. Why then should Staib, as part of that arrangement, consent to purchase with his own money a tract of coal which was not up for sale and bind himself to convey it to Hayes at a fixed price, under the penalty of a forfeiture of all his rights in the original purchase in case of a failure ? What did Hayes agree to give in exchange ? If the facts had been as stated in the defendant’s affidavits, there would be some reason for the plaintiff making this agreement, but in the face of all the facts and circumstances as we have already found them — the open sale; the fact of the parties being the only bidders; and the fact of the proposal coming from the defendant — such an agreement could hardly have been made by a person not devoid of reason. The “ inherent improbability ” of the plaintiff having made this a condition precedent to his obtaining the benefits of his purchase is so glaring as to put the story beyond belief. On the other hand the arrangement as detailed by the plaintiff has some semblance of business sense about it. [We find therefore, under all the facts and circumstances of the case, that the plaintiff’s right to demand a division of the 200 acres was in no way dependent upon his conveying the 64 acres to the defendant, but that the arrangement in regard to the 64 acres, if it rose to the dignity of a contract at all, was independent of the purchase of the 200 acres and formed no part of the consideration which entered into the arrangement for that purchase.] 3 As we shall see when we come to the next branch of the case, the defendant has rendered it impossible for the 200 acres and the 64 acres to be equally divided and [we accordingly find that the plaintiff is entitled, upon paying the balance of his half of the purchase money, to an equal partition of the 200 acres, and that the division line should be the line A. B. on plaintiff’s map, the direction and length of which is north 6‡° east, 8,794 feet, and that all of the 200 acres lying east of that line should be conveyed by the defendant to the plaintiff.] 6 2. The next general question to be considered is, what injuries has the plaintiff suffered by reason of the wrongful acts of the defendant and what damages or compensation should be allowed him bn account of the injuries. These injuries, as charged by the plaintiff, are, (1) the amount of coal taken by the defendant from the 200 acre tract beyond his own proper proportion; (2) the damages inflicted upon the plaintiff by reason of the defendant having mined across the line A. B., into the east half of the 200 acre tract; (3) the amount of coal taken out of the Victory works by the defendant and the damages done to the property thereby; (4) the amount of coal taken out of the 64 acres, whether taken rightfully or wrongfully, and the damage done to that tract by the wrongful acts of the defendant therein. — ■ The master then proceeded to ascertain from the evidence the amounts of coal mined out and removed from the 200 acre tract east of the line A. B.; from the 64 acre tract; and from the 97 acre tract, with the injuries done to the plaintiff resulting therefrom, and recommended a decree, in substance: (1) That the defendant execute and deliver to plaintiff a deed in fee simple with special warranty for the one half of the 200 acre tract lying east of the line A. B.; (2) that he pay to the plaintiff 122,250.48, less the sum of $1,908.53, the balance of purchase money on the 200 acre tract due from the plaintiff, the balance payable by the defendant being $20,841.45; (3) that he account for the coal mined and removed from the 64 acre tract after April IT, 1882; (4) that he be enjoined, etc.; (5) that his cross-bill be dismissed, and (6) that he pay the costs. Various exceptions filed to the foregoing report were overruled by the master and being filed with his report were renewed in court. These exceptions were, inter alia, that the master erred: 1-5. In the several findings embraced in [ ] 8 to 6 On January 17, 1888, the day of the argument of said exceptions before the court, the defendant, subject to plaintiff’s objection as to the time, filed demurrers to various parts of the bill, and assigned as reasons the want of jurisdiction in equity and the existence of an adequate remedy at law. He filed also pleas to the jurisdiction, one of which was as follows: The defendant.doth plead to so much of plaintiff’s bill as may be held to be a claim to set up and establish a resulting trust in his behalf to an equal undivided half part of the 200 acre tract of coal, and for the enforcement thereof by division of said land and a deed from defendant for an equal half thereof, as set forth in 1st paragraph of the bill, and the 4th prayer, and for a plea saith that he, the defendant, during the year 1877, when as alleged by plaintiff and found by the master the said resulting-trust commenced, and continuously,, for many years next preceding that year and continuously since then, was and has been a resident of Allegheny county, in the state of Pennsylvania, and has never resided in the county of Washington.11 ■ After argument, the court, McIuvajNE, P. J., filed an opinion which, after overruling the demurrers and pleas filed on January 17,1888, on the ground that they were not in time; sustaining the jurisdiction, under Adams’ App., 113 Pa, 455; Allison’s App., 77 Pa. 225; Equity Rules, § 1-29, and reviewing the facts disclosed by the pleadings and testimony, proceeded : These established facts taken alone would lead inevitably to the conclusion that the original purchase of the two hundred acres of coal was a joint purchase, and, unless there are other facts in the case relevant to the transaction that would modify or annul the force of these established facts, we must so find. The fact that this sale was reported by the trustees in the name of the defendant, and the fact that since issue has been joined in this case upon the plaintiff’s bill, he has paid the last one third instalment of the purchase money and obtained a deed in his own name for the whole of the tract, cannot affect the original contract or the rights of the parties under it. The plaintiff’s beneficial interest in the coal land had vested in virtue of the terms of the contract of purchase and the payment of his share of the first two instalments of the purchase money, and the relative rights of the parties remain the same notwithstanding the trustee’s deed was made in the defendant’s name alone. The defendant, however, sets up the claim that the plaintiff was only to have an interest in the two hundred acres of coal on condition that he would purchasé and have deeded to him the sixty-four acres of Wiekerham Reserve coal, and that having failed to do this he is not entitled to have a partition of the two hundred acre tract. The testimony, in our opinion, does not sustain this claim. The original agreement of these parties in regard to the purchase of the Robison coal was made under circumstances that prevented them from going into details. They had to act promptly, and the terms of the contract were not stated at length and explicitly. We must, therefore, from all that was thus hurriedly said and done, endeavor as best we can, to arrive at the true intention of the parties at the time the contract was made and if possible exclude from the testimony, in our consideration of the matter, what appears to be an afterthought on the part of either of the parties. We have carefully read and studied the testimony with a view of ascertaining what was in the minds of the parties when they came to an agreement on the day of this sale, and our conclusion in regard to the 64 acres of Reserve coal is this: that its purchase was to be an after-consideration; the two hundred acres were then up for sale and they must act in regard to it immediately; the sixty-four acre tract belonged to another person and was not then in tbe market; the proposition to buy it, we think, arose out of the suggestion of the defendant that it might turn out that more than half of the two hundred acre tract lay on Staib’s side of an appropriate dividing line, and that he would not get as much coal as Staib or would not get coal that was favorably located in reference to his river front, and that thus he would .fail to realize as much out of this joint-purchase of the two hundred acres as the plaintiff. Staib then proposed that he would buy, or could buy, the sixty-four acres some time in the future and that it and the two hundred acres could be divided so as to give each an equal amount of coal well located with reference to their front coal. The purchase of the Wickerham coal was proposed by Staib to quiet the fears of Hayes that he would not get an advantageous division of the two hundred acres on account of its location, which he knew nothing about. Still another question on this branch of the case demands our attention. Granting that the plaintiff and defendant are joint-owners of this two hundred acre tract, how ought it to be divided between them ? Each of these parties, on the day of sale, had an equal chance of buying the whole tract, and an unqualified proposition not to bid one against the other, but that they buy it together and divide it, would imply that it was to be divided into equal parts; and each party, after the purchase, paying one half the purchase money, so far as it was paid by them jointly, would greatly strengthen tins implication. The plaintiff testifies that the agreement in regard to the division of this tract of two hundred acres, was that it should be divided into equal parts, he taking the half in the rear of his coal plant and. the defendant taking the half in the rear of his. And his testimony in this regard is in perfect accord with the presumption that arises from the facts connected with the purchase and the payment of the purchase money. The defendant, however, claims that the two hundred acres was to be divided by the prolongation of the division line between the tracts of front coal belonging to the parties respectively, which if prolonged without deflection would give him one hundred and sixteen acres and the plaintiff eighty-four acres. It is probable that the parties did agree, as the defendant claims, that the two hundred acres should be divided by a prolongation of the line dividing the front tracts; that is, that it was to be divided so that each river tract should have in its rear one of the parts adjoining it; but this did not rebut the idea of an equal division. The defendant testified that he had never been upon this two hundred acre tract of land, that he did not know hut that the most of it lay on the Staib side, if the front division line was prolonged straight through it without a deflection. Why, then, would he make such a contract when it might prove to be unfavorable to himself. Not knowing as much about the lay of the land as Staib, he, as a prudent business man, would likely insist on an equal division rather than on a manner of division the result of which he could not foresee. [From the testimony in the case and from all the facts surrounding the transaction, 1 am satisfied that the agreement and the understanding of the parties at the time the two hundred acres of coal was bought, were, that it should be bought by them jointly and equally divided ; that Staib was to make an effort to buy the Wickerham coal at the same price per acre, and if he succeeded, that the two hundred and sixty-four acres were to he divided equally, the division line in either case to be a straight line starting at the south terminus of the line dividing the two river tracts.] 1 But we are also satisfied that the agreement to jointly purchase the two hundred acres of Robison coal was a contract entirely independent of the understanding or proposal in regard to the future purchase of the sixty-four acres from Wickerham. In view of these facts and conclusions we think that the master was clearly right in finding, “ That the plaintiff is entitled, upon paying the balance of his half of the purchase money, to an equal partition of the two hundred acres and that the division line should be the line A.'B. on plaintiff’s map, the direction and length of which is north six and one fourth degrees, east 8,794 feet, and that all of the two hundred acres lying east of that line shall be conveyed by the defendant to the plaintiff.” What the master has so well said in his report in support of this finding renders it unnecessary for us to elaborate on this branch of the case or to go into a detailed review of the testimony. 8. As to Damages. * * ****** The court reviewing the testimony as to the damages sustained by the plaintiff, modified the finding of the master upon that subject and upon the liability of the defendant to account for the coal mined and removed from the 64 acre tract after April 17, 1882, and signed the decree as recommended by the master, except as so modified. Whereupon the defendant took this appeal, specifying that the court erred, inter alia: I. In the part of the opinion embraced in [ ]1 2-6. In overruling the defendant’s exceptions.8 10 6 II. In overruling defendant’s plea to the jurisdiction.11 1. The courts of Pennsylvania do not have general jurisdiction in equity, but only such as has been committed to them by statute. Section 15, act of June 14, 1886, P. L. 632, providing that “ whenever any trust shall arise by operation or implication of law, the Court of Common Pleas of the county in which any such trustee shall have resided at the commencement of the trust, ..... shall exercise the jurisdiction and powers given by law in regard to such trusts,” gives jurisdiction for the establishment of an implied or resulting trust, only in the court of the county where the trustee resided at the time when the alleged trust arose. But even if this were not so, then certainly the plaintiff’s remedy, if he had one, was by application to the Orphans’ Court of Washington county, where the matter was still pending, and which he could have asked to interfere and to establish his claim to be an equal joint purchaser, and as such to receive a joint deed with the defendant on paying or securing his portion of the three instalments of purchase money: Peoples’ Bank App., 93 Pa. 107. Moreover, a person not a tenant in possession but having a right to dig ore, does not commit waste or trespass in digging out more ore than his right calls for, and a court of equity cannot restrain by injunction, nor will a court of equity decree an account where an account is a mere matter of charge on one side; a bill in equity is not a universal panacea: Grubb’s App., 90 Pa. 228. The second and third claims of plaintiff’s bill presented no ease of equity jurisdiction, and this court has dismissed a bill suo motu upon similar grounds: Grubb’s App., supra, 235. 2. The defendant’s title at the time the first bill was filed, was an inchoate judicial title. He had a return of sale to him in his own name, a confirmation thereof by the court, and a deed filed in escrow by Wickerham to him, conveying the legal title then outstanding. At the time the cross-bill was filed, the testimony taken and the master’s report filed, he had the entire title to the 200 acre tract, haying received Wickerham’s deed and also that of the trustee. Deeds are prima facie evidence of the verity of their contents, and, when supported by the positive answers of defendants, the testimony to set them aside ought to be so clear and explicit as to leave scarce a doubt upon the subject: Farringer v. Ramsey, 2 Md. 365; Bird v. Styles, 3 Green, C. E., 298; Brent v. Smith, 5 Green, C. E., 199; Calkins v. Landis, 6 Green, C. E., 423; Force v. Butcher, 3 Green, C. E., 401. The plaintiff having appealed to the conscience of the defendant may not attack his credibility; he must overcome the answer by stronger testimony: Vandegrift v. Herbert, 3 Green, C. E., 466; Clason v. Morris, 10 Johns. 542. The testimony of two disinterested persons, or the equivalent, is required to make out a case against the answer : Thomas v. Loose, 114 Pa. 35; Campbell v. Patterson, 95 Pa. 447. Moreover, in a case for the enforcement of a resulting trust, the rule as to the strength of the testimony required is the same as in other cases to set up a parol agreement against a legal or paper title: McBarron v. Glass, 30 Pa. 133; Best v. Campbell, 62 Pa. 476; Earnest’s App., 106 Pa. 310; McGinity v. McGinity, 63 Pa. 38; Buchanan v. Streeper, 11 W. N. 434; Peebles v. Reading, 8 S. & R. 493; Bigley v. Jones,-114 Pa. 517; Boyd v. McLean, 1 Johns. Ch. 582; Botsford v. Burr, 2 Johns. Ch. 405. 1. The objects sought to be obtained by a bill in equity are to be ascertained from the prayers it contains: Skilton v. Webster, Brightly, 233. The trespasses complained of were permanent in their character, and a destruction of the freehold; tbe prayer for injunction was therefore proper: Allison’s App., 77 Pa. 227. When trespasses axe constantly recurring and threaten to continue, it is well settled they may be redressed in equity by injunction: Stewart’s App., 56 Pa. 422; Smith’s App., 69 Pa. 474. Jurisdiction in equity depends not so much on the want of a common law remedy as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court: Bierbower’s App., 107 Pa. 17; Brush Elec. Co.’s App., 114 Pa. 585; Bank of Kentucky v. Schuylkill Bank, 1 Pars. 220; Skilton v. Webster, supra; Bank of United States y. Biddle, 2 Pars. 31. Equity has jurisdiction in all cases of partition: Section 3, act of March 17, 1845, P. L. 160 ; act of February 14, 1857, P. L. 39 ; Brown’s App., 84 Pa. 457. And if for any reason, injunction, partition, or discovery and account, equity would take cognizance of this litigation, the court will dispose of every subject embraced within the circle of contest, whether the question be of remedy or of distinct yet connected topics of dispute: Me Go win v. Remington, 12 Pa. 63; Win-ton’s App., 97 Pa. 385. At all events, if the bill was demurrable, the fact ought to have been ascertained and the demurrers filed before the defendant filed his cross-bill and before there had been a tedious and expensive hearing upon the merits: Socher’s App., 104 Pa. 619; Adam’s App., 113 Pa. 455. 2. A trust is where the legal title is in one person and the beneficial interest is in another. When the plaintiff’s bill was filed, the defendant certainly had not the legal title to the 200 acre tract. He and the plaintiff had a joint equitable title to the extent they had paid the purchase money, which payment had been equal. Hence there can be no question of implied trust in the case. Such a trust is only raised from fraud in obtaining the title, or from payment of the purchase money when the title is acquired: Barnet v. Dougherty, 32 Pa. 372; Cross’s App., 97 Pa. 474; McLaughlin v. Fulton, 104 Pa. 170. 3. No argument is needed to show that § 15 of the act of June 14, 1836, P. L. 632, was but intended to give the Common Pleas of a county, other than that in which trust property is situate, power to regulate the official conduct of the trustee; and, even if the act were applicable, the defendant had submitted to answer the plaintiff’s bill, filed in Washington county, and had himself filed a cross-bill against the plaintiff in tbat county. And why, for any reason, should the plaintiff forsake the Common Pleas in equity and go into the Orphans’ Court ? In its sphere, the Orphans’ Court is a court of equity, but it has not power to enjoin against repeated and continued trespasses, nor can it compel a wrong-doer, to discover and account for property which he has appropriated. 4. It is patent from the pleadings that the parties had some agreement as to the ownership of the 200 acre tract. That is shown by the defendant’s answer as well as by his cross-bill. The master found: “It could not, therefore, have been what the defendant’s answer and cross-bill would seem to indicate, a parol agreement by the defendant to sell and convey to the plaintiff, but it was, and the master so finds from all the evidence, an agreement to make a joint purchase of the land for the use and benefit of both parties.” The defendant did not except to this finding. The master then goes into an inquiry and concludes that the plaintiff’s version, that they were to be owners of equal interests, is the'true one. Nothing but very clear error will justify setting aside this finding approved as it was by the court: Burton’s App., 93 Pa. 220; Kisor’s App., 62 Pa. 435; Eeeser’s App., 100 Pa. 79. The array of facts upon which the conclusions of the court and master are based is overwhelming.
123 Pa. 140Pittsb. C. & St. L. Ry. Co. v. Lyon (1889)
F/RROR TO THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY. No. 145 October Term 1888, Sup. Ct.; court below, No. 75 August Term 1885, C. P. On May 22, 1887, a summons in case was served upon tbe agent of tbe defendant company at Washington, Pa., in a suit by Prof. James A. Lyon against tbe Pittsburgh, Cincinnati & St. Louis Railway Company. Tbe defendant pleaded, not guilty. At the trial on October 27,1887, tbe facts appeared in evidence that the plaintiff on March 24, 1885, desiring to go to New Orleans, applied to defendant company’s agent at Washington, Pa., for a ticket to Birmingham, a passenger station within the limits of Pittsburgh, near which station is a passenger station of the Pittsburgh & L. E. Railroad. He was informed that no tickets were sold to Birmingham, but that a ticket to Pittsburgh covered all stations within the city limits. The plaintiff purchased a ticket to Pittsburgh and, producing it to the baggage agent, asked to have his trunk checked to Birmingham. This the baggage agent refused to do, saying that the rules of the company required that all baggage should be checked to the point of destination shown upon the ticket. The plaintiff at first refused to accept the check tendered, but at length accepted it and his trunk was placed on the train. At Birmingham, which was a regular stopping station of his train, the plaintiff alighted and there demanded his trunk, which was refused and carried to the Union Station in Pittsburgh, one mile away. The plaintiff, rather than delay, took the train upon the Pittsb. & L. E. Railroad about to start and made arrangements to have his trunk follow him. The facts are more fully stated in the opinion. The court, Stowe, P. J., C. P. No. 1, 5th judicial district, charged the jury as follows : This is simply a question between Lyon, the plaintiff, an individual, and the railway company, the plaintiff going to the railway company and demanding certain rights which they refused to give him; and the whole right of the plaintiff to recover here depends upon whether he had a right to demand what he asked, and they refused to do that which they were bound to do. It seems there was no written order given on the part of the superior officers of the defendant company with refererence to baggage, but they did have, according to the testimony, which 1 presume you will have no doubt in believing, a verbal order under which the practice was that they would not ordinarily deliver baggage to a person buying a ticket here in Washington for Pittsburgh, at Birmingham station; and it seems to be contended, and 1 presume you will have no difficulty in finding, it was done by some general order of the company. Now the first question is, was that a reasonable regulation; was it such a rule as the company had a right to make? Because, while a railroad company has a right to make certain rules and regulations for its own management, and while it may be an inconvenience, to a certain extent, to parties and the patrons of the road, yet they have a right to make them and the public have no right to complain. As, for instance, they are not bound in case they are running a train that didn’t stop from Mansfield to the Union depot, — they are not bound to sell me a ticket to any point between those points, because they are not bound to stop, although I may want to get off and notify them of the fact at the time. If the train is not in the habit of stopping at a certain point, they are not bound to stop there, and consequently they are not bound to let me off, nor my baggage off. But the testimony shows these trains did stop, or the train of the plaintiff stopped in Pittsburgh, and stopped at Birmingham station. The practice was to sell a ticket to the city of Pittsburgh. Temperance-ville, Point Bridge, Birmingham station and 4th Avenue, as they are called, are all in the city of Pittsburgh; and the practice was not to discriminate with reference to price, but anybody wanting to go to any of these places, including Temperanceville and beyond that towards the city, bought a ticket for one dollar to go to Pittsburgh. Now, the question arises whether or not, selling tickets to a certain point, or to the city of Pittsburgh, and when they allowed and were in the habit of allowing parties to get off at any of these stations, under a .ticket sold which would take them to Union station, they had a right to lay down a rule by which, although the party might get off himself, he would be compelled to go to Union station to get his baggage. I say that such a rule is unreasonable and one the company had no right to make; and, therefore, the existence of a rule of that kind with reference to passengers was a violation of their duty; and, in conforming with the rule, while the inferior officers of the road may be perfectly justifiable in doing it, yet it is such a rule as the company had no right to make, and they become responsible in damages if they undertake to do it in reference to passengers. I put it upon the broadest ground. But there is a narrower ground on which it might be put. It seems they did allow parties, not only to get off themselves, because that is unquestioned, but they did allow certain parties, commercial travelers, parties holding thousand-mile tickets, and on some other occasions other parties, to get off and take their baggage off at that point. But it is immaterial, so far as the legal question is concerned, whether or not the party is going by the Lake Erie road, or going to Birmingham, or where he may go; it is a question of right, so far as the citizen is concerned, as the law affects this railroad company..... [Now, they refused to give him a ticket, except to Pittsburgh; he went to a certain station in Pittsburgh; but instead of allowing him to get his baggage off at Birmingham, they delivered the baggage at Union station. In doing that they established a rule which required the officers of the road, or the parties in control of the train to do a certain thing, and I say the managers of the road who established those rules have done a thing which the law does not justify them in doing. I think it is an unreasonable and improper regulation, and one which if complied with, as was done here, renders the party liable in damages.] 4 [If you find the facts such as indicated, on the part of the plaintiff and not substantially, if at all, contradicted, the next question is, what should the plaintiff recover in damages? He has not shown any particular damages,and therefore the ordinary rule would be nominal damages, six cents, which would carry costs.] 5 The jury are not limited to merely compensatory damages, or mere nominal damages. They may, if the circumstances of the case show aggravation and violence, or anything done with an intent to annoy or injure, give what we call punitive damages, damages by way of punishment, or exemplary damages by way of example, to prevent their doing this kind of thing again. [Now, while this is an action brought for the special relief of the plaintiff, yet there are some circumstances in this case which give the jury the right to pass upon that question of exemplary damages.] 5 And if they come to that, and think that anything more than nominal damages should be allowed, it is for them to say what amount should be imposed upon the defendant. [So far as the case goes, there was no violence, there was no abuse ; there was merely a refusal to give the party his trunk, and a violation, as we have instructed you, of their legal duty to him as a passenger.] 6 Whether there was anything more in the case is for you to determine. [We can only say if you find, in the language of the point presented by the counsel for plaintiff, that there was unjust discrimination as to the plaintiff, then you may give exemplary, give punitive damages; otherwise you should give only nominal damages.] 5 The plaintiff has asked us to say to you: 1. Mere compensation is not the rule in a ease like the present. The jury may, if they find unjust discrimination or oppression on the part of the defendant, give exemplary or punitive damages to the plaintiff. Answer: Compensation is the ordinary rule in such a case as this. But if you find unjust discrimination or oppression as to the plaintiff, you may give exemplary or punitive damages. However, I say this, as to the plaintiff; looking at it with reference to that point, you have no right to inquire into the purpose so far as a competing road is concerned. We can’t try this case as if the Lake Erie road was a party concerned here, bringing suit to recover for direct damage done to it by means of discrimination against it. We have nothing to do with that. It may have been the motive to avoid competition with that road that induced the making of this rule; but the question still comes back to the starting point, did they have the right to make the rule ? If they did, then of course the law would justify them in doing what they did, refusing under the circumstances to hand him over his trunk. But we have said as a matter'of law, regardless of the motive, they have no right to make this rule, and therefore the plaintiff is entitled to recover, if you believe the testimony, at least nominal damages. Whether he is entitled to recover more, depends upon the facts as you find them from the testimony in the case.1 The defendant presents the following points : 1. That if the plaintiff received from the defendant a check calling for delivery of his baggage at Pittsburgh, with the understanding that he would not be allowed to receive it until it reached its destination, then he cannot recover in the event of a refusal to deliver it short of the point of delivery. Answer : Refused. This is refused because it would ignore • the validity, or the invalidity rather, of this rule. It makes no difference whether he was notified he would not receive his trunk short of the Union Depot, or not, provided the ground upon which they insisted upon the non-delivery was insufficient, that is to say, the rule of the company which we have already said is invalid.3 2. That a railroad company has a right to make general rules for the conduct of its business, and if the jury believe that the plaintiff sought to compel a violation on the part of the defendant’s employees of such a rule, and failed in his attempt, he cannot recover on account of such failure. Answer: Refused. Of course a party would have no right to recover against a railroad for the refusal of the officers to violate a rule that was a proper and reasonable rule. It would be absurd to suppose the railroad company would be liable for its officers doing that which they have a right, and it was their duty to do. But where the rule is, as we have said this was, an unreasonable and improper rule, it would be no protection to the company. If it were not so, then the company could lay down just whatever rules it pleased, and however inconvenient, however unreasonable, the mere fact that the traveler was told that the company would do thus and so, would be a protection to the company for doing that which they had no right to do.3 The jury returned a verdict in favor of the plaintiff for $200. A rule for a new trial having been discharged, on March 29, 1888, judgment was entered, when the defendant company took this writ, assigning as error: 1. The answer to the plaintiff’s first point.1 2, 3. The answers to the defendant’s points.3 3 4. The part of the charge embraced in [ ] 4 5. The parts of the charge embraced in [ ] 5 1. The right of a railroad company to make reasonable rules for its own protection, and for the safety and convenience of its passengers, has been repeatedly recognized: Penn. R. Co. v. Langdon, 92 Pa. 22; Dietrich v. Penn. R. Co., 71 Pa. 432; Penn. R. Co. v. Zebe, 33 Pa. 318. The test of the legality or illegality of a regulation affecting the rights of passengers, or prescribing rules for their guidance or conduct, is their reasonableness or unreasonableness; they are unlawful when they are unreasonable, or an unnecessary infringement on the rights and liberties of- the passenger. The distinction between such regulations as are conducive to the comfort and convenience of the traveler, or to protect the rights of the company, must from its very nature be a question of fact rather than of law, and properly for the consideration not of the court, but of the jury: State v. Overton, 4 Zab. 435; Jenks v. Coleman, 2 Sumn. 221. At least the question is a mixed question of law and fact, and proper for submission to the jury under instructions: JBass v. Railway Co., 86 Wis. 450 (17 Amer. R. 495) ; 1 Redi, on Railways, 88; Commonwealth v. Power, 7 Met. 586; Day v. Owen, 5 Mich. 520 (72 Amer. D. 62). 2 The testimony will be searched in vain for any proof of discrimination against the plaintiff. The jury were expressly told that compensation was the ordinary rule in a case like this. No claim was made that the plaintiff had suffered any pecuniary loss, or sustained any actual or substantial damage. Under these circumstances the court should not have submitted the question as to discrimination to the jury, and should not have said to them that there were “ some circumstances in this case,” which gave them “the right to pass upon that question of exemplary damages,” and, in the answer to the plaintiff’s point, “ if you find unjust discrimination or oppression as to the plaintiff, you may give exemplary or punitive damages.” “ When a case is submitted to a jury on clearly insufficient evidence, such as no court ought to sustain a verdict upon, it is pur plain duty to reverse: ” Cauffman v. Long, 82 Pa. 72; Rowand v. Finney, 96 Pa. 192. 1. The reasonableness of a rule or regulation is a question of law for the court to decide : Rorer on Railroads, 227; Taylor, Corporations, § 348; Kneedler v. Norristown, 100 Pa. 37.2; Lynn v. B. & L. Ass’n, 117 Pa. 13; Hibernia Fire Engine Co. v. Harrison, 93 Pa. 269; Dietrich v. Penn. R. Co., 71 Pa. 432; Learning v. Wise, 73 Pa. 176; West Chester etc. R. Co. v. Miles, 55 Pa. 210. 2. Corrective damages may be given for the sake of example : McBride v. McLaughlin, 5 W. 375. Exemplary damages may be given with, a view to promote the peace and qniet of society and to protect every one in the full enjoyment of his rights: Phillips v. Lawrence, 6 W. & S. 154where there is more than a.n ordinary wrong, as a punishment to the wrongdoer : McDonald v. Seaife, 11 Pa. 881; to deter others from the commission of like wrongs: Blair Iron & Coal Co. v. Lloyd, 8 W. N. 103; for a wanton invasion of plaintiffs rights: Amer v. Longstreth, 10 Pa. 145; in case of oppression, outrage and vindictiveness: Nagle v. Mullison, 34 Pa.58; for wilful injury, the result of reckless indifference: Lake Shore etc. It. Co. v. Rosenzweig, 113 Pa. 519.
123 Pa. 151Borough of Millerstown v. Bell (1889)
ERROR to the court of common pleas of butler COUNTY. No. 173 October Term 1888, Sup. Ct.; court below, No. 75 December Term 1887, C. P. On November 10, 1887, a case was stated, in the nature of a special verdict, for tbe judgment of the court, wherein J. M. Bell, W. P. Turner and J. Anderson, doing business as Turner & Tadder, were plaintiffs, and the borough of Millerstown was defendant. It was admitted tbat the borough of Millerstown was incorporated under the general borough law of April- 3, 1851, P. L. 320, and the case stated set forth : 1. That the borough of Millerstown, plaintiff above mentioned, is duly incorporated under the laws of Pennsylvania. 2. That the council of the said boz'ough in May, 1887, adopted azid approved certain ordinances, the following being one of them: § 4. Teamsters, owners or drivers of any team, stage, hack, carriage, wagon, or other vehicle, (except those in actual use in carrying the U. S. mail, or those used for private purposes merely,) for which they receive any compensation whatever, within the borough, or to or from the same, shall procure from the borough clerk azi azznual license, signed by the burgess and countersigzzed by the borough treasurer, to be indorsed thereon as follows: For one horse and wagon or other vehicle, the sum of two dollars and fifty cents; for wagozi or other vehicle with two or more horses, the sum of five dollars. Any person violating any of the provisions of this section shall forfeit for each and every offence the sum of not less than two nor more than five dollars, to be recovered as debts of like amount by law are now recoverable. 3. That the defendants, and each of them, are and have been engaged in the livery business as livery stable keepers in the borough of Millerstown, aforesaid, ever since the first day of September, 1887. 4. That the defendants on the 6th, 7th and 8th days of September, 1887, ran and caused to be run hacks and other vehicles for the purpose of earryizig passezigers for hire frozn the borough of Millerstown, aforesaid, to the Fair Grounds in Donegal township, without having first taken out a license under the ordinance aforesaid. 5. The defendazzts deny the power and anthority of the borough of Millerstown to pass and enforce such ordinance as above recited. 6. That the plaintiff and defendants have entered into an article of agreement hereto attached and marked exhibit “ A ” made part hereof. If the court be of opinion, etc. On December 5, 1887, the cozzrt, McMichaee, J., filed an opinion, citing and considering Dillon on Mun. Corp., §§ 89, 861; Robinson v. Mayor of Franklin, 1 Humph. 156 (84 Amer. 1). 625) ; Commonwealth v. Erie etc. R. Co., 27 Pa. 339; Bennett v. Birmingham, 31 Pa. 15; Phillips v. Allen, 41 Pa. 481; Frankford etc. Ry. Co. y. Philadelphia, 58 Pa. 119; Butler’s App., 73 Pa. 448 ; Kneedler v. Norristown, 100 Pa. 368; Warren Borough v. Geer, 117 Pa. 207; Gettysburg Borough y. Zeigler, 2 Pa. C. C. R. 326, and ruled that the corporate officers of the borough of Millerstown had no authority, expressly granted, or necessarily implied in the powers which Avere granted, to enact or enforce the ordinance recited in the case cited, and directed judgment to be entered for the defendants. Exception. The plaintiff then took this writ assigning the ruling and judgment of the court as error. One of the corporate powers of the borough is “ To make such laws, ordinances, by-laAvs and regulations, not inconsistent with the laws of this commonwealth, as they shall deem necessary for the good order and government of the borough § 2, par. i., act of April 3,1851, P. L. 320. This language defining the power to enact ordinances is broad, indeed. It seems practically to include whatever tends to the advantage or benefit of the borough. The courts Avill not interfere with the borough authorities in the exercise of this power, where the ordinance is reasonable and for the common benefit, not in restraint of trade, nor imposing a burden without apparent benefit, and not inconsistent Avith the state or federal constitutions. It certainly cannot be contended that the act of 1851 clothed the corporate officers of the borough of Millerstown with such authority, either- by express grant or by clear and necessary implication. The ordinance in question, moreover, is not and never was necessary for the peace and good order of the borough. Since the passage of the act of 1851, there have been passed the following special acts authorizing the licensing of vehicles in cities and boroughs: April 10, 1873, P. L. 704; March 30, 1860, P. L. 363 ; April 13, 18T0, P. L. 1130; act of February 18, 1869, P. L. 199. If, under the general law, boroughs have the authority to require the owners of hacks used to convey passengers for hire to take out a license, then this special legislation was entirely unnecessary. The passage of these statutes is a strong interpretation that the old law granted no such powers.
123 Pa. 155Miller v. Duvall (1889)
PROM THE DECREE OE THE COURT OE COMMON UREAS OE WASHINGTON COUNTY. Nos. 150 and 151 October Term 1888, Snp. Ct., court below, No. 134 May Term 1885, C. P. On April 28, 1885, Jacob Duvall, a defendant in a judgment in favor of James M. Miller, for use of A. D. Scott, against Jacob Duvall and Alexander Duvall, entered to No. 134 May Term 1885, as a revival of No. 5 May Term 1879, presented his petition setting forth a history of the indebtedness represented by the judgment; that as appeared by the record to No. 5 May Term 1889, the judgment entered thereto was assigned to A. D. Scott on March 9,1885, “ but your petitioner avers, believes and expects to be able to prove that the said assignment was merely colorable and that no real interest in said judgment passed or was intended to pass by the same to A. D. Scott and the said judgment is still owned by the said J ames M. Miller; ” that when the writ of scire facias to revive was served upon him he was induced by representations made by James M. Miller not to appear and to suffer judgment to be entered by default; that judgment had been entered against him for $692.97, without allowing him credit for $212.50 paid on account of the principal, and for other payments by way of usurious interest, etc., praying that the judgment be opened, etc. To the rule granted upon this petition, answers were filed by James M. Miller and by A. D. Scott, that of Mr. Scott setting forth that he had taken the assignment of the judgment from James M. Miller on March 9, 1885, relying upon a certificate of no defence signed by the petitioner and dated February 28, 1885. From the, testimony taken and filed in the proceeding, it appeared, inter alia, from the cross-examination of Mr. Scott that, .together with the certificate of no defence received when he took the assignment, he also had the guaranty of Mr. Miller; that he bought the judgment as an investment; that the same day he received the assignment he sent the papers by mail to his attorney with directions tó collect the money. The petitioner testified in support of the averments of his petition, relating how the certificate of no defence had been procured from him, and on cross-examination, testified in the manner set forth in the opinion of this court. The court below, IIa et, P. J., on the argument of the rule, said: Tf A. D. Scott, the use plaintiff, purchased the original judgment, No. 5 May Term, 1879, in good faith, relying on the defendant Jacob Duvall’s certificate of no defence, there can be no doubt that Duvall is completely estopped thereby from setting up the defence of usury, even though Scott may have relied also upon the verbal guaranty of the legal plaintiff. But it is equally clear that if, as alleged, the certificate was obtained by Miller under an arrangement with Scott for the purpose of heading off ” Duvall, and compelling him to pay the judgment in full with the usurious interest included, there is no estoppel; the case stands as if there had been no assignment of the original judgment; and Duvall’s right to have it purged of the excessive interest is unquestionable. On this point I am of opinion that the depositions and exhibits before me raise such a question of fact as entitles the defendant to an issue and a trial by jury. And it is so ordered. Exception. At the trial of the issue awarded, on May 80, 1888, Mr. Scott testified in his case in chief that he had bought the judgment on the faith of the certificate of no defence; on cross-examination, he testified, as in his examination on the rule, that he bought the judgment as an investment, but that on the same day he mailed the assignment to his attorneys with directions to collect at once, and further that he would not have bought the judgment if Miller had not guaranteed it. The court, MoIevaine, P. J., after reviewing the testimony, charged the jury: [The question then for your determination resolves itself into this: did Mr. Scott purchase this judgment bona fide; did he pay for it the sum he said he did ; did he, in making the purchase, rely in any degree upon the statements made by Duvall in his written certificate of no defence? If he did, then the defendant is estopped from asking a credit for the usurious interest paid to Mr. Miller, and your verdict should be for the plaintiff for the full amount of his claim. On the other hand, if you believe Mr. Scott has not given a true or full statement of the manner in and the purpose for which he purchased the judgment, and that he was acting in collusion with Miller, and the sale of this judgment was not made in in good faith but was made for the purpose of assisting Mr. Miller in collecting more money from Duvall than he himself otherwise could have collected by law, then the defence of usury can be set up against Mr. Scott, and the defendant will be entitled to a credit on the principal debt of the interest paid Miller in excess of six per cent. In passing on the question of good faith on the part of Mr. Scott, you will carefully consider all the testimony in the case. The allegation is that Mr. Scott acted in collusion with Mr. Miller; that they conspired together to collect from Duvall this usurious interest, and the certificate of no defence necessary to accomplish their purpose was obtained from Duvall for this purpose.] 3 Such conduct on the part of Miller and Scott would be a fraud on the rights of Duvall. Fraud is never to be presumed, but must be clearly and satisfactorily proven, or facts must be clearly and satisfactorily proven from which fraud can be fairly inferred. Mere suspicion is not sufficient, but the testimony must rise to the dignity of satisfactory proof. It is not necessary for us to refer to the testimony in the case. You will readily recall it without assistance from the court. [The only controverted question, in our opinion, in the case, as we have already said, is as to the character of the purchase of this judgment: was it sham, or'was it a bona fide purchase ?] 3 . . .,. . Now, gentlemen, this is, as has been remarked, a rather important case. It is one of those eases where, if you believe the testimony of the plaintiff, he is entitled to recover; if however, there is in the facts surrounding the transaction sufficient to produce a conviction in your minds that Mr. Miller and Mr. Scott were perpetrating what really would be a fraud upon this party, and that this assignment was a sham, then your verdict should be .for the defendant. Of course, if this certificate of no defence had nothing to do with the purchase of this judgment, and you think Mr. Scott was falsifying when he said-it did, it would amount to nothing; it would not avail him anything if he purchased solely on the guaranty of Mr. Miller. But if it in any degree influenced him to buy the judgment, then Mr. Duvall is bound by the certificate, and he will have to stand the consequence of signing it; because he (Scott} had a right to rely upon both the certificate and guaranty, but if he relied on the guaranty and didn’t rely upon the certificate, then he would have to stand the credit of the usurious interest. [Now, the plaintiff asks me to take this case from the jury and say that there was no evidence of collusion between Mr. Scott and Mr. Miller, and that the defendant is not entitled to credit for the usury he has paid. This judgment was opened by Judge Hart, who directed an issue to be formed that these very questions should be submitted to a jury, and therefore I consider it is my duty to submit them to you regardless of wbat my opinion would be; 1 therefore leave the questions to you for your determination. You are the proper judges of the credibility of witnesses.] :! The agreement of counsel as to the amount of the verdict is, that if you believe this transfer was valid and Mr. Scott was influenced in any degree by the certificate of no defence, then your verdict will be for tbe plaintiff for $500.01, the amount handed to you by Mr. Dougan; on tbe other band, if you believe be purchased entirely independent of the certificate of no defence, or that this sale on his part as well as Mr. Miller’s was not in good faith, then yon will find in favor of the plaintiff for $91.87, the amount handed you by Mr. Irwin. The plaintiff respectfully requests the court to instruct the jury as follows: 1. If the jury believe from the evidence that Scott bought the judgment from Miller on the faith of Duvall’s certificate of no defence, that fact is conclusive in favor of the use plaintiff’s right to recover, there being no evidence of the fraudulent procurement and use of it by Miller and Scott in collusion to defraud Duvall. Answer: This point as a whole is refused. We leave it to the jury to determine whether there was any collusion between Miller and Scott; if they find there was not, then the certificate of no defence would be conclusive if Scott bought the judgment on the faith of it.1 2. On the whole evidence the court is respectfully requested to instruct the jury that the verdict must be for the plaintiff. Answer: Refused if the point means that the plaintiff is entitled to his whole claim. It is admitted that he is entitled to a verdict for $91.87.® The jury returned a verdict for the plaintiff for $91.87. A rule for a new trial having been discharged, judgment was entered upon the verdict, when the plaintiff took an appeal, assigning as error, the order of December 6, 1886, opening the judgment and awarding the issue, and also a writ of error, specifying that the court erred: 1, 2. In the answers to plaintiff’s points.1 ® 3. In the portions of the charge embraced #l [ ] 3 1. Prima facie, the certificate of no defence fully protected Scott in his claim to have the entire amount of the revived judgment. To overcome the certificate, the burden was upon the petitioner to produce evidence that the assignment under which Scott claimed was merely colorable; that no real interest passed or was intended to pass from Miller to Scott, and that Miller still owned the judgment. It is believed that the measure of proof would be that prescribed in English’s App., 119 Pa. 533, namely, clear, precise and indubitable. But if that is too high a standard, there should at least have been some evidence of collusion between Miller and Scott: Elkin v. Janson, 13 M. & W. 655. There was not a particle of evidence, direct or indirect, upon the subject. It was therefore error to open the judgment and award the issue. 2. On the authority of English’s App., 119 Pa. 533, the judgment on the trial of the issue should be reversed, because, “ if it was error to open the judgment upon the facts as they stood when the order was made, it was error to submit the case to the jury and the trial goes for nothing.” Moreover, neither in the aggregate, nor in detail, did the facts in evidence tend to show a conspiracy between Miller and Scott whereby Duvall was to be prevented from availing himself of his defence of usury. In no degree did they point to.the conclusion which Duvall sought to establish. Speculative inferences are not allowable and cannot be regarded as evidence : Battles v. Laudenslager, 84 Pa. 451; Stouffer y. Latshaw, 2 W. 165 ; Egbert v. Payne, 99 Pa. 244. 1. The petitioner was not required to make out his case entirely by evidence of facts within his own knowledge. There is enough in the testimony of Mr. Scott to warrant the submission of the case to a jury upon the question of the good faith of the assignment and of the reception of the certificate of no defence. Of course, what was in the minds of the parties cannot be shown by direct evidence, but does not the whole transaction expose the fact that the assignment, with the procurement and use of the certificate, was colorable, — a trap to obtain a revival judgment by adverse process, and a levy and sale of defendant’s property, in order to defeat the credits to which defendant was entitled? Hopkins v. West, 83 Pa. 109; Montague v. McDowell, 99 Pa. 265. 2. A declaration, to be effective as an estoppel, must be made to him who acts upon it, and who, after the exercise of due diligence, has reason to rely upon it as true, and is thereby induced to do what he otherwise would not have done: FmIjKXTku, J., in Mecouch v. Loughery, 12 Phila. 416. English’s App., 119 Pa. 533, it will be seen on the slightest examination, is an authority only upon the question of practice, not upon the question of evidence. In this case, Mr. Scott having testified that he bought the judgment for an investment, but sent the assignment the same day to his attorney for collection, and that he would not have bought but for the guaranty of Miller, was it not a question for a jury to pass upon whether the certificate had any influence at all in the purchase, or whether when it was taken it was relied upon, if at all, simply in its efficacy as an estoppel and not because of the statements of fact in it ? This court has said in a number of cases, appeals such as this : “ On an application to open a judgment, it is proper for the court to weigh the evidence, and to decide according to the preponderance thereof, and we will not reverse for the exercise of a sound discretion: ” Wernet’s App., 91 Pa. 319; Kneedler’s App., 92 Pa. 428; Lamb’s App., 89 Pa. 407; Hickernell’s App., 90 Pa. 328.
123 Pa. 164Allegheny Co. v. McKeesport Diamond Market (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. -1 OE ALLEGHENY COUNTY. No. 217 October Term 1887, Sup. Ct.; court below, No. 31 September Term 1886, C. P. No. 1. In May, 1886, the county of Allegheny, as plaintiff, and the McKeesport Diamond Market, as defendant, filed a case stated, in the nature of a special verdict showing: 1. By an agreement in writing dated March 24, 1884, a true copy of which is attached and made part hereof, it was agreed by and between the borough of McKeesport, a municipal corporation, under the laws of the commonwealth, as party of the first part, and James S. Kuhn et al., as parties of the second part, that said parties of the second part should construct a public market house in said borough. 2. The said parties of the second part on April 29, 1884, together with other persons associated with them, became a corporation under the general corporation act of April 29, 1874, P. L. 78, and its supplements, under the name and style of the McKeesport Diamond Market, for the purpose of carrying out said contract; and said corporation, before January, 1885, erected said market house according to the terms and provisions of said agreement. 8. That said market house is erected upon one of the public squares of the said borough, having been dedicated by the plan of the town of McKeesport for a market house and other public purposes. 4. The building is only used for the purpose of a public market, and is necessary and indispensable therefor. 5. The building is a part of the capital stock of the defendant, and is wholly included in the same, and as such pays the usual state taxes to the commonwealth. The stock of the defendant is owned by a considerable number of persons who are liable to and pay taxes thereon to the state. 6. The county of Allegheny has caused the said market house building, so far as the interest of said defendant corporation is concerned, to be assessed as real estate for county purposes, claiming that it is a proper subject for taxation as to the interest of said defendant, and said tax amounts to $50. If the court be of opinion that said building is liable for said taxes then judgment to be entered for plaintiff for $50 with costs, but if not, then judgment to be entered for defendant with costs, with the right to either party to take out a writ of error. The agreement of March 24,1884, referred to, is sufficiently stated in the opinion of the court. On June 29, 1886, the court, Stowe, P. J., citing Coatesville Gas Go. v. Chester Co., 97 Pa. 481, ruled that under the foregoing case stated, defendant was not liable for the tax claimed, and ordered judgment to be entered in favor of the defendant for costs. The plaintiff then took this writ, assigning said judgment as error. 1. By § 1, article IX., of the constitution, all taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax. In pursuance of said section the general assembly passed the act of May 14, 1874, P. L. 158. Clearly the property mentioned in the case stated is not exempted from taxation for county purposes, because of the peremptory direction of the act referred to that all property, real and personal, from which any income or revenue is derived, shall be subject to taxation, except when exempted by law for state purposes. 2. Water works owned by a municipality and which constitute a source of revenue to it, are taxable for county purposes under the act of 1874, although all such revenue has been in fact expended upon improvements and the extension of the works: Erie Co. v. Commissioners, 113 Pa. 368. If the borough owning the market house could not escape the taxation, it is not within its power to free the property by transferring it to private individuals either for a long or short term. South Reading Market Co. v. Berks Co., 11 W. N. 424, is a case on all fours with the present one. 1. The argument that the building referred to in the case stated is municipal property and therefore taxable because a revenue is derived therefrom, is answered by Sewickley Borough v. Sholes, 118 Pa. 165. The lot on which the building stands was dedicated for market and other purposes. The building erected thereon belongs to the borough; and the fact that defendant has’ the use of it for a certain term does not change the character of the property. By the case stated, only the “ building, so far as the interest of the defendant ” is concerned, is assessed. Under Watson v. O’Hern, : - ' - the right granted to the defendant is a lease for years, which is but personalty: Wood’s L. & T., § 68. It has never been the practice in Pennsylvania to assess taxes on leasehold estates for years, much less to claim that they are assessable as real estate. 2. By the case stated, the building is part of the capital stock of the defendant and as such pays the usual taxes to the commonwealth. Moreover, it is used only for a public market and is necessary and indispensable therefor. The public character of markets is recognized by the acts of March 18, 1775, and April 8, 1851; also in Mayor v. Davis, 6 W. & S. 277. II: the defendant is a public corporation, then it is not taxable, except through its capital stock: Coatesville Gas Co. v. Chester Co., 97 Pa. 481. The case of South Heading Market House Co. v. Berks Co., 11 W. N. 424, was the case of a mere private corporation organized to rent out stalls and make money.
123 Pa. 170Penn. Natural Gas Co. v. Cook (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 256 October Term 1887, Sup. Ct.; court below, No. 584 December Term 1886, C. P. No. 1. On December 4, 1886, a summons in debt was issued in an action by John W. Cook, for use of A. Cook, against tbe Pennsylvania Natural Gas Company, the United Gas Fuel Company and B. F. Rafferty. On December 14th, the defendants pleaded, nil debet. At the trial on May 11, 1887, the defendants filed the additional plea of non est factum. It then appeared that in May, 1886, J. W. Cook, the plaintiff, under a lease from the Pittsb. & W. R. Co., was in possession of a landing on the Allegheny river, at the foot of School street, Allegheny city, the landing extending some distance above and below said street. School street, at right angles with the river, had never been actually opened, although it was upon the city plan. In an eddy adjacent to the shore, the plaintiff had a floating saw mill, a floating planing mill, and a floating dock for building and repairing barges. Access from the shore to the mills was over a float which lay at the foot of School street, and a bridge connected the float with the mills. By permission of the city, the plaintiff had made a plank road on School street, to reach the landing. The Penn. N. Gas Co. was a corporation, organized under the act of May 29, 1885, P. L. 29, and on May 19, 1886, was constructing aline or lines for the conveyance of natural gas from the foot of School street across the river to the foot of Third street, in Pittsburgh, B. F. Rafferty being in charge of the work. The plaintiff’s float and mills were in the way. Mr. Rafferty proposed to move them and Mr. Cook objected. After some controversy, the company gave to the plaintiff the bond on which suit was brought, and were thereupon permitted to enter and move his float and mills so as to enable them to dig the trench and lay their lines. B. F. Rafferty, one of the defendants, called by the plaintiff as on cross examination, testified that in May, 1886, he was general manager of the Penn. N. Gas Co.; that his signature to exhibit 1 was genuine, and that the name of the Pennsylvania Natural Gas Co. thereto, was signed by him by the authority of the company: “ I can’t say that I saw the seal attached, but I think I did.” J. M. Cooper, called by plaintiff, testified that in May, 1886, he was the secretary of the United Gas Fuel Co., and placed his signature and the signature of his company, and its seal, to exhibit 1; “I had the authority of the president at the time it was executed.” J. W. Cook, the plaintiff, on the stand, testified to the occupation by the defendant of the foot of School street, the removal of his plank road, the digging up of the street, and as to the length of time that elapsed before the pipes were laid and covered. Q. What was the consequence of this interruption to your business ? Objected to, as incompetent and irrelevant. By the court: The witness may state what he lost and how he lost it, and may explain wherein it cost him damage and how much: Exception.1 The witness then testified, inter alia, that the occupation of the landing and the eddy of the river at that point, prevented the continuance of his business; when low water came, he could not side or dock boats because of piles of dirt caused by dredging and dumping,- the men objected to working over the pipe line; the only thing he could do was to hunt another location, which he did, and moved into the Monongahela river, to the South Side. Plaintiff’s counsel proposed to show by the witness on the stand that, by reason of the operations of the defendant he was obliged to leave this landing; that he could get no other place to carry on his business until he went over to the South Side; that he had a certain amount of local trade connected with his business which was lost altogether by his removal to the South Side. Objected to as incompetent and irrelevant. By the court: You may show that by reason of this you suffered an actual loss in business : Exception.8 The plaintiff testified in support of the offer. The counsel then offered in evidence the bond in suit, marked exhibit 1; also, the lease from the Pittsb. & W. R. Oo. to the plaintiff. Objected to as incompetent and irrelevant, and no proof of title in plaintiff, and because the lease in question shows that it had expired at the date of the injury complained of, and, further and particularly, object to the bond because there is no proof here of any reference to viewers or of any statutory proceedings had in the matter. By the court: Objection overruled. The bond thus admitted was the following : Know all Men by these presents, That we, Pennsylvania Natural Gas Company, The United Gas Fuel Company, of Pittsburgh, Pa., and B. F. Rafferty, of the City of Pittsburgh, are held and firmly bound unto John W. Cook, of the City of Allegheny, in the sum of ten thousand dollars, to be paid . . . Witness our hands and seals the 19th day of May, in the year of our Lord one thousand eight hundred and eighty-six. The condition of the above obligation is such that if the above bounden Pennsylvania Natural Gas Company, United Gas Fuel Company, andB. F. Rafferty, their successors, heirs, executors, administrators, and assigns, do well and truly pay or cause to be paid unto the said John W. Cook, his certain attorney, heirs, executors, administrators, or assigns, all damages of whatsoever nature or kind that may be suffered or sustained by said Cook, by reason of the excavating for, putting together, burying, constructing, completing and repairing a line or lines of gas-pipe, through the bed and waters and up the shore and bank of the Allegheny river at the eddy or landing now occupied by said Cook, at the foot of School street in the city of Allegheny, and through the mill and lumber yard now occupied by him adjoining said eddy and landing, said damages to be paid forthwith upon the completion of such line across said river as far as Killbuck street, Allegheny, and immediately on completing any repair or repairs; this bond to remain in force for thirty days, and if any work of construction or repair is done after thirty days a new bond is to be • given without any fraud or further delay, then this obligation to be void, otherwise to be and remain in full force and virtue. [SEAL.] Penna. Natural Gas Company, by B. F. Raeeerty, Gen. Man. B. F. Raeeerty. [SEAL.] United Gas Fuel Company, ■ by J. M. Gueey, President. Attest: J. M. Cooper, Secretary. Several other witnesses having been examined upon the subject of the damages occasioned by the construction of the lines, the plaintiff rested. Then the defendants further objected to the bond offered in evidence by the plaintiff, “ because said bond is not under the seal of the Pennsylvania Natural Gas Company, and there is no proof of any seal of the said company on it. Second, because there is no proof of any damage done by the United Gas Fuel Company in this matter, and because the execution of such a bond by the United Gas Fuel Company is ultra vires and void, and there is no proof of any power in the president and secretary of said company to execute such bonds.” By the coru't: Objection overruled.3 The defendants moved the court for a judgment of nonsuit, on the ground (1) that the act complained of was done by a natural gas company in the exercise of its franchises, and the statute authorizing the incorporation of such companies has provided a method of assessing damages, which method must be strictly followed, and (2) the plaintiff has wholly failed to prove title in the property occupied or damaged. This motion was refused. At the close of the case upon the evidence, the court, Collier, J., charged the jury as follows : The only question in this case, is how much damage has the plaintiff sustained by reason of the acts of the defendants ? The defendants gave to the plaintiff a bond, in writing, stating exactly what they agreed to do, and hence you are relieved from any contest upon that, although there are legal questions raised which will have to be determined hereafter. For the present, so far as we are now concerned in trying the case, the bond stands unimpeached and unimpaired..... Now, gentlemen, the main question is, what damages were sustained by the plaintiff ? What did the parties do ? Upon that there is a variety of testimony. The plaintiff claims very large damages. The defendants contend that there was very little damage, merely nominal, that there was no real injury; and that the greatest injury Mr. Cook sustained was because he chose to give up and drop his whole business there and move away, for the reason that he did not have things just as he wanted them. On the question of damages, it is first contended that the defendant companies went up School street with their mains. You have heard the law very properly stated that a gas company has a right to go up a street if it does so in a proper manner; particularly upon getting the consent of councils of the city. They can lay their pipes in the streets, and if they do no more damage than merely cutting up the street, and laying the pipes, no one can complain. But in this bond the defendants agree that if any damage is sustained by reason of laying the pipe up the bank, and as described here, they would pay for it, any actual damage. Hence, as I said, it is a question of proof of damage. Now, the plaintiff alleges that the defendants moved away his floats; kept him for some days from conducting his business. If that be the case, whatever his actual loss for that time would be, you ought to allow him under this agreement. The next item of plaintiff’s claim is that they tore up his plank road which he had built on School street. He was allowed to build it for his own use and they tore it up and did not put it back. It would make no difference whether it was on the street or not. You all know if you have permission to make a plank road and a stranger comes along and takes it up,' he must pay for it. Then, after these matters of damage were committed, and after the pipes were laid, you come next to the most important part of the case, and that is the plaintiff’s giving up his business, taking his boats, mills and everything away and moving to another place. To allow him to recover damages for that, there must be some necessity shown for it. He could not give up his whole business there because there were some inconveniences, some damage to him, and go off to another place and hold the defendants liable for all his loss in business. That could only be done from some necessity, such as is claimed here, that it was absolutely unsafe and dangerous to life to stay there, something of that kind. It is claimed by Mr. Cook that he was compelled to move ; that they laid their pipes under one end of his boat near where his saw-mill apparatus was, and that they leaked; that it was actually dangerous and unsafe, and he had to move away on that account. Even if that were true, you must judge whether he was justified in doing that. Could the leaks have been mended ? He must first try to see whether that could not have been rectified. If it was an absolute necessity that he move, if it was unsafe to stay there, and there was no use to stay there, and he could not, then he could go away and hold the defendants for the loss occasioned by that. You are the judges of that. You know the facts that surround human life better than I. I can give you the rule of law, and you will apply it to the evidence. You will say when you come to that matter of damage, whether Mr. Cook was justified in giving up a large business in a place like that and going off without anything more, and charging all the loss to the defendants. There must be a necessity for it; it must be unsafe to remain there, and you are the judges of that. [Then there is a claim of damage for the gravel that was dumped there. You will say how much the damage would be on that account, if any. The learned counsel for defendants claims that was done by a contractor, and the defendants had nothing to do with it. That is correct, providing there was no agreement in writing that they would pay any damages sustained by the plaintiff — -not only damages under the act of Assembly, but any consequential damages. Any damages he actually sustained he would be legally entitled to in this suit.]18 There are other items of damage, but I think these matters are sufficient to explain the law to you. As to the question of the street, between high- and low-water mark, the ordinance expressly lays out that street to the river, and wherever'that street is, the city would have a right to give any company a right to put its pipes in it. The court is requested by the plaintiff to charge : 1. If the jury find that the plaintiff, on the faith of the bond in suit, permitted the defendants to remove his mill and boats and occupy his landing and eddy, and to lay a line of gas pipe through the same, the plaintiff is entitled to recover the actual loss sustained by him by reason of the laying of said pipe line. Answer: Affirmed. 2. If the jury find that by reason of the laying of said pipe line through plaintiff’s eddy and landing, and the manner in which it was laid and the work done in laying the same, the plaintiff could not safely and conveniently resume his business at that place after the pipe was laid, the plaintiff is entitled to recover the’ loss sustained by him in removing to another location ; and, in estimating such loss the jury should allow the plaintiff for the stoppage of his business, the improvements and boats that were rendered of no value by the removal, all the expenses incident to the removal, and a fair compensation for the loss of business sustained by the removal. Answer: Affirmed, with, the exception of the word, conveniently, which is refused.4 The court is requested by the defendants to instruct the jury: 1. That under all the evidence the verdict must be for defendants. Answer: Refused.5, If the first point be refused, then the court is respectfully requested to instruct the jury as follows : 2. That the alleged bond of the Pennsylvania Natural Gas Company, not being under the seal of said company, there can be no recovery against said company under the pleading and evidence in this action. Answer: Refused.6 3. That the act of the president and secretary of the United Gas Fuel Company, in executing said alleged bond, was and is, in so far as said United Gas Fuel Company is concerned, ultra vires and void, and there can be no recovery against said United Gas Fuel Company. Answer: Refused.7 4. That tbe measure of liability of the defendants, if an;y liability there be, is the measure prescribed by the act of assembly of May 29, 1885, relating to Natural Gas companies, and no greater or other liability. Answer: Refused.8 5. That the deposit of gravel upon the bed of the Allegheny river by the contractor or agents of the Pennsylvania Natural Gas Company, was in no respect an incident of the laying of the pipe of said company, and the damages, if any, caused by said deposit of gravel, as alleged by plaintiff, are not damages resulting from the laying of said company’s gas pipe, and there can be no recovery for the same in this action. Answer: Refused.9 6. That under the law, the Pennsylvania Natural Gas Company had a right to enter upon and lay down its pipes in School street in the city of Allegheny, and there can be no recovery of damages by plaintiff in this action for such entry,, and the obstruction, if any, caused thereby. Answer: Refused.10 7. That the measure of damages in this case is the difference, if any, between what the leasehold interest or license of' plaintiff in the river front, at or near the foot of School street, would have sold for, unaffected by the obstruction, and what it would sell for, as affected by said obstruction, without reference to the person of the owner or the state of his business. Answer: Refused.11 8. That no damages can be allowed to plaintiff for injury to his business or expense of moving his boats away. Answer: Refused.13 10. That under the pleadings and evidence there can be no. recovery in this action. Answer: Refused.13 11. That the evidence of plaintiff and defendants discloses, the fact that the pipe of said Pennsylvania Natural Gas Company was laid wholly upon School street, a public street of the city of Allegheny, and the right of said gas company, under its charter, was superior to that of the plaintiff, and there can be no recovery for any alleged damages caused by such laying. Answer: Refused.14 12. That the plaintiff had no right to keep his float or flatboat at the foot of or upon Sciiool street, or to have any apron or landing thereupon, and he is entitled to no damages for the removal of said float or flat-boat. Answer: Refused.15 13. That there is no proof of authority in B. F. Rafferty to execute the bond sued on. Answer: Refused.16 14. That under the law the rights of the public, and of the Pennsylvania Natural Gas Company, in School street, extend to low-water mark in the Allegheny river. Answer: Sufficiently answered in the general charge.17 Mr. Dickey: There is one matter I desire to call your Hon- or’s attention to: The evidence was, that no gas was turned into this pipe until after the plaintiff had moved away. By the court: Of course, you understand, gentlemen, thát we do not generally go over the'testimony in detail; we leave that to you; but that was testified to, and, of course, if that was the case, if there was no gas turned into the pipes up to the time Mr. Cook moved away, he had no right to go away • and visit the defendants with that loss and damage. If the gas was not turned on when he went away, he ought to have staid there until he could see whether there was any damage from that, and even if there was some gas escaping that would not justify him in removing. If, after he had tried to have it remedied and could not, then he would be justified in moving. The jury returned a verdict for the plaintiff for $4,000. A rule for a new trial, subsequently argued, was refused on condition that a remittitur of the excess of the verdict over $3,000 be filed, which being done, judgment was entered upon the verdict as reduced, when the defendants took this writ and assigned as error: 1-3. The admission of plaintiff’s offers.110 3 4. The answer to plaintiff’s 2d point.4 5-17. The answers to defendants’ points.5 t017 * 18. The part of the charge embraced in [ ] 18 1. The plea of non est factum put upon the plaintiff the proof of the execution of the instrument sued on. No seal of the Penn. N. Gas Co. was upon the bond, and no proof of corporate authority to execute the writing was offered; not a scintilla of proof that the board of directors of the company even knew of the existence of the paper. There must be proof of some corporate action: Allegheny Co. Work House v. Moore, 95 Pa. 408. When a sealed instrument is declared upon the seal must be proved or there will be a variance: Scott v. Horn, 9 Pa. 407. As to the United Gas Fuel Co., there was also no proof of corporate authority. This company appears to have been a mere volunteer. The act of 1885, incorporating such companies, confers no power to become sureties, and the act of the president and secretary was clearly without authority and void: § 10, act of May 29, 1885, P. L. 29; Morawetz on Corp. § 512; Metropolitan El. R.y. Co. v. Railway Co., 15 Amer. & E. R. C. 53; Hart etc. R. Co. v. Creswell, 5 Hill 383. 2. Under the adjudicated cases, it was clearly incompetent to allow the plaintiff to prove loss of profits which he might have made. The measure of damages in such cases is the difference between what the property would have sold for, as affected by the injury, and what it would have brought, unaffected by such injury, without reference to the person of the owner, or the state of his business: Watson v. Railroad Co., 37 Pa. 469: East Brandywine etc. R. Co. v. Ranck, 78 Pa. 454; Philadelphia v. Linnard, 97 Pa. 242; Pittsb. & L. E. R. Co. v. Robinson, 95 Pa. 426. 3. It will be observed that the condition of the writing sued on, was that the company should pay all damages that might ' be suffered or sustained by reason of the excavating for, putting together, burying, constructing, completing and repairing á line of pipe, etc. Nothing is said about damages for the maintenance of the line; and the removal of the plaintiff was not caused by the laying of the line, but by his apprehension that it might thereafter become unsafe for him to .remain. Moreover, the depositing of gravel 300 feet below School street, was not a necessary incident to the pipe-laying. Even if the action had been brought to recover for negligence, the corporation would not be responsible for the conduct of an independent contractor : Edmundson v. Railroad Co., Ill Pa. .316. 1. The signature of the agent of a corporation executing an instrument on its behalf being proved, the seal, though mere paper and a wafer stamped with the common desk seal of a merchant, will be presumed to be intended as the seal of the corporation until the presumption is rebutted by competent evidence: Angelí & Ames, Corp. § 226. Where a corporation makes a contract through an agent, who puts to it a seal, it becomes by law the deed of the corporation, though it have not their common seal: Porter v. Railroad Co., 37 Me. 349 ; Mill Dam v. Hovey, 21 Pick. 417; Bank of Middlebury v. Railroad Co., 30 Yt. 159; Hutchins v. Byrnes, 9 Gray 367; Haven v. Adams, 4 Allen 80; Eureka Co. v. Bailey, 11 Wal. 488. 2. The case went to trial on the plea of nil debet, payment, etc., which admitted the execution of the bond: Parkinson v. Parker, 85 Pa. 313. And the bond was actually admitted without objection to its validity or mode of execution, until after the plaintiff had closed his case. The plea of non est factum was also filed during the trial. If the objection had any merit, it came too late. As to the United Gas Fuel Co., there is no proof that the company executed the bond as surety, nor any proof that it had not as much interest in the line as the Penn. N. Gas Co. Being duly executed by the officers of the company, it is prima facie valid; the court will not presume it ultra vires. 3. No authority is shown for the position that the plaintiff had no right to sue on the bond without first having viewers appointed. The bond does not provide that the damages shall be paid when ascertained according to the act of assembly; they are payable forthwith on the completion of the line to Killbuek street. Moreover, the objection came too late, after plea pleaded. “ An objection to the jurisdiction of a court, which goes not to its judicial power, but to the mode in which the case is brought before it, will not avail the defendant after appearance and plea in bar: ” Schenley v. Commonwealth, 36 Pa. 29. 4. The jury have found that the plaintiff, on the faith of the bond in suit, permitted the defendants to remove his mill and floats, to occupy his landing and eddy, and to lay a line of gas pipe through them; that plaintiff’s business was stopped, could not be safely resumed, and he was obliged to remove to another location. Independent of the stipulations of the bond, the rule of damages applied in the case is fully sustained by P. & R. R. Co. v. Getz, 113 Pa. 214. The loss of business was a consequential injury for which the defendants were liable by the terms of the bond and the rulings of this court. They were not obliged to give the bond, but having done so they must comply with its terms: Buckwalter v. Bridge Co., 38 Pa. 281; Cooper v. Smith, 9 S. & R. 26; P. & L. E. R. Co. v. Jones, 111 Pa. 204.
123 Pa. 184Spencer v. Jennings (1889)
ERROR TO THE COUNT OE COMMON PLEAS NO. 2 OE ALLEGHENY , COUNTY. No. 188 October Term 1886, Sup. Ct.; court below, No. 311 April Term 1884, C. P. No. 2. To the first Monday of March, 1884, an action of ejectment was brought by John Spencer and 0- A. Spencer, his wife, in right of said wife, Margaret E. Spencer, and Fred. Waldschmidt, guardian of Henry and Edward Schumacher, against Nicholas Freiehtel, to recover a tract of 115 acres in Plum township. Subsequently John F. Jennings was brought in as the real party defendant. The plea was, not guilty. At the trial on April 9,1886, before White, J., the plaintiffs showed title to the land in dispute out of the commonwealth and in William A. Schumacher by deed from John Donnell and wife dated October 27, 1854; that said William A. Schumacher died resident in Butler county in 1858, seised of said land lying in Allegheny county; that plaintiffs were his heirs at law living at the date of the suit, and they and their mother had occupied the land in dispute until 1868. The plaintiffs having rested, the defendants offered the record at No. 90 October Term 1860, O. C., showing a petition and order of the Orphans’ Court directing a mortgage of the property in dispute, and the acknowledgment of the mortgage in open court. Objected to, for the reason, in substance, that the Orphans’ Court of Allegheny county did not have jurisdiction to order such mortgage under the petition filed. By the court: Objection overruled.3 The said record showed that on Schumacher presented her petition to the Orphans’ Court Allegheny county, setting forth that William A. Schumacher, of Butler county, died on November 3, 1858, seised of a certain tract of land in Allegheny county, containing 115 acres, more or less, and leaving to survive him his widow, the petitioner, and three children who -were minors ; that letters of administration upon the estate of said deceased had been granted the petitioner by the register of wills, etc., of Butler county November 11, 1884: “Your petitioner further represents the said real estate is subject to the lien of debts due by decedent, and not of record, and that it is for the best interest and advantage of those interested therein that the same should be mortgaged for the purpose of raising a sufficient amount of money to pay off and discharge the debts due by estate of said decedent, “Your petitioner therefore prays that your honors will authorize and empower her, by order and decree of your honorable court, to mortgage the real estate for the sum of seven hundred dollars, payable in three years from date, with interest from date payable annually,.” Said petition, verified by affidavit, having been filed, the court, prout patet, on the same day appointed H. P. Mueller, Esq., guardian ad litem for the three minor children, naming them, and directed “that a citation issue commanding [him] to be and appear before this court on ten days notice thereof, then and there to answer the foregoing petition in the name and in behalf of said minors.” On the same day, prout patet, the answer of said minors by H. P. Mueller, the guardian, was filed: “ The said respondents represent that the facts set forth in the petition of said Julia C. Schumacher are true, and that it will be for the great interest and advantage of these respondents that the said Julia C. Schumacher have power, by order of this court, to mortgage the said real estate in the maimer and amount as therein prayed; and furthermore said not.” On the same day, prout patet, tbe bond of the petitioner, with two sureties, in the sum of §1,500, was presented and the said Orphans’ Court then signed a formal order approving the bond and concluding: “the said court do order and decree that the said Julia C. Schumacher have authority to execute her bond, with a mortgage to secure the same, on the real estate mentioned and described in the said petition in manner and amount as prayed for in said petition, and that the money raised on said mortgage he applied according to law to the discharge of such debts as may be liens on said real estate, and the remainder of said money, if any, she hold subject to the further order of this court.” Said record also showed the minute: “December 17, 1860, mortgage acknowledged in open court.” Following the foregoing offer, the defendants, under objection and exception to the plaintiffs, were permitted to put in evidence a recorded mortgage executed by J ulia C. Schumacher to J. M. Sowers, dated December 17,1860, in the sum of $1,400, conditioned for the payment of $700 in three years from the date thereof, etc., and reciting that it was made and executed by virtue of said order of court; also, the record of a judgment in a scire facias upon tbe mortgage to No. 125 November Term 1866, against Julia Caroline Jones, formerly Schumacher ; also, the record of a sheriff’s sale under a levari facias at No. 107 November Term 1866, and an auditor’s distribution of the proceeds of sale; with title by various mesne conveyances from the sheriff’s vendee to John F. Jennings the defendant. At the close of the evidence the defendants requested the court to charge that under all the evidence the verdict should he for the defendants. By the court: There are no questions of fact for the jury to pass upon. The questions of law can better be heard and decided by the court in bane. Tbe point is affirmed and leave granted for plaintiffs to file a motion for a new trial.1 The jury, under direction returned a verdict for the defendants. Subsequently, the rule for a new trial was discharged, and judgment entered upon the verdict. The plaintiffs thereupon took this writ and assigned as error, inter alia: 1. The answer to the defendants’ point.1 2. The direction to find for the defendant. 3. The admission of defendants’ offer.3 The cause was argued in this court on November 6, 1886. On January 3, 1887, opinion by Mr. Justice TbuNkey, the judgment was reversed with a venire de novo : reported, 114 Pa. 618. On January 24, 1887, a re-argument was ordered* upon the motion of the defendants. 1. Clearly the provisions of §§ 31 and 32, act of March 29, 1832, P. L. 198, placed the responsibility of the sale or mortgage of a decedent’s lands where the interest of those affected can best be guarded, in the Orphans’ Court which has jurisdiction of the accounts of the executor, administrator or guardian. Should an administrator have the power or right to sell and dispose of lands in any county, without pursuing the provisions of said act, valuable property could easily be frittered away or wasted, and the proceeds squandered without the knowledge of the heirs and others. These provisions of the act are not directory merely, but mandatory. 2. The act of April 18, 1863, P. L. 503, is an enlarging or enabling statute. It was designed to make “real estate freely alienable,” as the preamble recites, and to strike off the shackles of certain estates, which under the act of 1832, would have remained in chains until the contingency that bound them had passed. It does not expressly or by implication repeal any of the provisions of the act of 1832, and the entire current of legislation, dating from 1832 to the present time indicates that the act of 1832 was the parent stem upon which was en-grafted the acts of 1834,1851,1853, and other acts down to the present time. While the act of 1853 does not in precise terms provide that the provisions of the act of 1832 regulating the sale or mortgaging of land by an administrator, in counties other than the county of the domicil of the decedent, should be strictly followed as to mode of procedure, yet the same, we submit, is plainly inferable from the act of 1853, itself. 3. The position taken has been practically sustained by this court in several cases. “The Orphans’ Court of Jefferson coun ty had jurisdiction of this matter. Having jurisdiction over the accounts of the administrator, it had the right to order a conversion of the real estate for the payment of his debts. It is true that as to the land lying in Clearfield county, the Orphans’ Court of Jefferson county could-not consummate the conversion of the real estate in Clearfield county into money, without the aid of the Orphans’ Court of the latter county. But in this matter the Orphans’ Court of Clearfield county is merely ancillary to the Orphans’ Court of J efferson county; the latter court is the actor, but it uses the hand of the Orphans’ Court of Clearfield county to execute the decree: ” Lane v. Nelson, 79 Pa. 411. And see Gordon’s App., 93 Pa. 365; Scott on the Intestate Laws, 304-306; Packer’s Est., 7 Phila. 473; 1 Rhone’s O. C. Prac. 525-6. 4. The jurisdiction of any court exercising authority over a subject may be inquired into in every other court where the proceedings of the former are relied on and brought before the latter by a party claiming their benefit: Elliott v. Piersol, 1 Pet. 328; Thompson v. Tolmie, 2 Pet. 157; Wilkinson v. Iceland, 2 Pet. 627. No court however great its dignity can arrogate to itself the power of disposing of real estate without the forms of law. It must obtain jurisdiction of the thing in a legal mode. A decree without notice would be treated as a nullity. And so must a sale of land be treated, which has been made without an order or decree of court, though it may have ratified the sale: Shriver v. Lynn, 2 How. 43; Pittsburgh v. Walter, 69 Pa. 366; Painter v. Henderson, 7 Pa. 48; Welty v. Ruffner, 9 Pa. 224; Keech v. Rinehart, 10 Pa. 242; Dixey’s Exrs. v. Laning, 49 Pa. 143; Leedom v. Lombaert, 80 Pa. 390; Lockhart v. John, 7 Pa. 139; McKee v. McKee, 14 Pa. 231; Torrance v. Torrance, 53 Pa. 510; Gallaher v. Collins, 7 W. 554; Scott on the Intestate Laws, 366, 367. The petition must set oat facts necessary to give the court jurisdiction: Swayne v. Lyon, 67 Pa. 439; Torrance v. Torrance, 53 Pa. 511; Jones v. Jones, 12 Pa. 855; Gordon’s App., 93 Pa. 361. 1. Section 31, act of March 29, 1832, P. L. 198, and § 20, act of February 20, 1834, P. L. 76, had already vested jurisdiction under certain circumstances in the Orphans’ Court of the decedent’s domicil, and neither one of those acts gives as a reason authorizing a sale of real estate that the same is subject to the lien of debts not of record. The act of 1853 then gave to the Orphans’ Court where the real estate was situate jurisdiction to sell for a cause different from that which already vested jurisdiction in the court of the decedent’s domicil. Under the acts of 1832 and 1834, it was necessary to show that the personal estate of the decedent was insufficient for the payment of the debts. Under the act of 1853, nothing need appear but the fact that the real estate is subject to the lien of debts not of record, and that it is for the advantage of those interested therein that the same should be sold. A petition which avers these facts gives jurisdiction under the act of 1853, but not under the acts of 1832 or 1834. 2. In the late case, Morrison v. Nellis, 115 Pa. 41, it was held that the Orphans’ Court of Allegheny county had jurisdiction on the presentation to it of a petition by a guardian appointed in Washington county, to order the sale of real estate situate in Allegheny county. This court said: “ Clearly on the face of the petition, the case was within the letter and spirit of the act of 1853, relating to the sale of real estate. It was presented by the guardian of the children, not to raise money for their education and maintenance, but for the sole reason that it was- for their interest to sell the land.” Now, if a guardian appointed by the Orphans’ Court of Washington county may present a petition to the Orphans’ Court of Allegheny county under the act of April 18, 1853, containing the necessary jurisdictional averments, why may not an administrator appointed in Butler county present a petition to the Orphans’ Court of Allegheny county under the act of April 18, 1853, when her petition contains the necessary jurisdictional averments? What distinction is made under the act of April 18, 1853, between the rights of a guardian appointed in the domicil of the ward, and of an administrator appointed in the domicil of the decedent, to petition the Orphans’ Court of the county where the real estate is situate for leave to sell ? 8. The decisions bearing upon the questions are as follows: Gfrenawait’s App., 37 ' Pa. 95; this decision settled the doubts of many and is the chief corner stone of the practice which has grown up during the twenty-seven years which has since elapsed: Hower’s App., 55 Pa. 337; West v. Cochran, 104 Pa. 482. Before 1853, no private sales of real estate could be made by administrators, but since the act of that date, private sales by administrators for the payment of debts have been almost innumerable. If this were a new question, the opposite view from the one presented might be taken without injustice to those who have relied upon the decided cases in this court. But to hold now that the Orphans’ Court had no jurisdiction in this case, in the face of the decisions above cited, some of which have stood so long uncriticised, would not only injure an innocent purchaser, but would unséttle titles to the amount of millions of dollars.
123 Pa. 198Hubbard v. Allen (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 71 October Term 1888, Sup. Ct.; court below, No. 645 July Term 1887, C. P. No. 2. To tbe first Monday of July, 1887, a summons in assumpsit was issued in an action by L. M. Allen, administrator d. b. n. of -George Palmer, deceased, against Charles W. Hubbard, D. M. Long, Charles Lockhart and Thomas Bakewell, surviving partners of the firm of Hubbard, Lippincott, Bakewell & Co., to recover royalties accruing under an agreement relating to the assignment of a patented improvement in the methods of manufacturing axes. Issue. At the trial on February 7,1888, it appeared that on August 22,1871, letters p’atent No. 118,264 had issued to George Palmer and Charles W. Hubbard, of Pittsburgh, Pa. for an “ Improvement in the methods of manufacturing axes.” The mechanical appliances which made up the method protected by the letters patent were a series of dies employed in swaging, welding and finishing the form of the axe. A piece of rolled metal of the proper width and length was doubled on itself at a welding heat. Within the fold a mandrel was inserted to form the eye and the mass placed in the cavity of the lower one of a pair of dies, made stationary. The upper one, an exact counterpart, is fastened to a drop-hammer which by its blows is intended to swage the metal to the full of the cavity of the proper shape, and to weld the inner faces of the fold. The pair of dies which did the first rough-shaping and welding was marked a a on the specifications. The steel was then welded upon the poll in the usual way, and the axe afterward put through a second set of dies called d d, and then completed ready' for polishing and finishing in a third set of dies marked g g. The specifications describing in exact detail the different movements from the beginning to the end in the manufacture of the axe, concluded: “ What we claim as our invention, and desire to secure by letters patent, is, “ 1. The method, herein described and represented, of manufacturing axes and hatchets. “ 2. The pair of dies a a, for roughly swaging and welding the poll of the axe or hatchet, substantially as described. “ 3. The swaging dies d d, having swaging-faces of suitable form for shaping, by a percussive blow, the ends of an axe, in combination with a pair of eye-pins, e, constructed substantially as described. “4. The series of dies a a, d d, and g g, of a construction substantially as described.” On September 2, 1871, Mr. Palmer and Mr. W. Hubbard assigned their entire interest in said letters patent to the firm of Hubbard, Lippincott, Bakewell & Co., of which firm said Charles W. Hubbard was a member; and, the same day, George Palmer, individually, executed a written agreement with the firm reciting said assignment and providing that in consideration of said assignment and of the sum of one dollar, the firm covenanted with said Palmer, “that they will keep a true and correct account of all axes and hatchets manufactured by them by the process described and claimed in said letters patent, and shall, on the first day of July and January, in each and every year, during the term of said letters patent, after the first day of January, 1872, render unto said party of the first part, a true and correct statement of the number of' axes and hatchets so as aforesaid manufactured by them by the process aforesaid, and at the same time shall pay unto the said party of the first part, the sum of one cent, as royalty, on every axe and batcbet so as aforesaid manufactured by them since the last preceding statement and payment was made.”- Upon this contract the declaration was drawn. The plaintiff offered to prove that for and during a period of six years immediately prior to January 1, 1887, the defendants had made use of the dies described in letters patent No. 118,264, and claimed in the second claim thereof, at their works in the city of Pittsburgh, for the purpose of roughly swaging ánd welding the polls of axes, substantially as described in said patent. Defendants object: (1) Because the question raised by plaintiff’s offer necessarily involves a definition and construction of the patent, and is a question arising under the patent laws, whereof the United States courts have exclusive jurisdiction. (2) Because the offer does not support or maintain the declaration in this, that the declaration and contract call for the use of the entire process, but the offer is to show the use of a part only of said process. By the court: Objections' overruled.13 The plaintiff’s case in chief having closed, the defendants, after other testimony, called Charles W. Hubbard, a member of defendant firm and one of the patentees in said letters, and proposed to prove, in substance, that the particular device described and claimed in the second claim of the patent was the invention of the witness. Objected to as incompetent and irrelevant. By the court: Offer refused.11 Prank Reese, called by defendants, testified that he was an attorney at law and a mechanical and metallurgical expert, and had frequently been called upon during the last twelve years to testify in patent and other causes: Defendants offered to prove, in substance, that under the principles of the patent laws of the United States, the use of one device of a series of several devices patented as a process, ■would not be the use of said process. Objected to as irrelevant; the question is upon the construction of a contract, not of a patent. By the court: Under the decision in Palmer’s App., 96 Pa. 106, offer refused.18 The disputed questions of fact arising upon the evidence were, (1) whether or not the defendants used more than one of the series of dies, that designated in the second paragraph of the claim; (2) whether such use of said dies was merely for the purpose of shaping the polls, the welding of the blank being made before by a trip-hammer, or whether the dies were used both for the welding and shaping. The court, White, P. J., charged the jury and answered the points presented as follows: D uring the progress of this trial quite a number of very interesting questions of law have been raised, that will be for the court and not for the jury. Some I will have to pass upon by way of instructions to you but most of them I think have been settled, so far as you are concerned, in the trial of this case now, by the decision of the Supreme Court in Palmer’s Appeal, which was a case involving this contract, and of course involving the' patent, because it was by the representative of Mr. Palmer against the defendants then using the device. There is however a question of fact for you to pass upon. Counsel on both sides have agreed to the amount of verdict that should be found, if you should find for the plaintiff, so that [you really have but one question of fact to pass upon and I need not take up our time in going over the evidence, or elaborating the case, to bring you to that one question, which is, whether the dies were used for the purpose of welding these polls as well as shaping them. As I understand the decision of the Supreme Court, it is that where the dies were used for the purpose of shaping the poll of the axe alone, the defendants are not liable; but, where it has been used for welding as well as shaping, then the defendants are liable, and that is the question of fact now for you, whether these dies were used for welding the polls for these axes as well as shaping. I say to you in general terms, before I answer the points of law presented by the defendants’ counsel, that if the welding was regularly and substantially done under the little hammer the plaintiff cannot recover. An occasional welding under the drop when the little hammer was out of order, or a little incidental welding under the drop, would not be sufficient to make the-defendants liable under this contract. But if the drop and dies were used for welding as well as shaping the polls, the defendants are liable.] 10 The defendants’ counsel request the court to charge the jury: [The questions presented are sufficiently raised by the eleventh and fourteenth points.] 11. That a process is a mode of treatment of certain materials to produce a given result, consisting of a series of acts performed upon the subject-matter, which is to be thereby transformed or reduced to a different state or into a different thing. That a patentable process, as applied to mechanical operations to produce an article of manufacture, consists of a series of steps or operations, and is an entirety, and is not used or employed unless the entire process is employed. That in the patent, on the second claim of winch this action is based, the use of the dies, a a, without the use of the entire series of dies mentioned in the fourth claim, is but a use of the process covered by the patent. That in view of the statements and disclaimers contained in the Palmer and Hubbard patent, the second claim thereof is not used, unless the dies, a a, are used to weld together the inner faces of the axe polls without the use of. other instrumentality to weld the poll. That if the jury believe that the defendants in the manufacture of axes weld together the faces of the bent blanks to form axe polls, by means of a trip-hammer, before subjecting them to the action of dies, such as described in said second claim, and that such previous welding was not resorted to as a device to avoid the use of that claim, but was necessary in order to secure a good weld and to make a sound axe, then such use of the dies, a a, is nót a use of the second claim within the meaning of the patent. That the contract entered into between the plaintiff’s intestate and the defendants, is for the manufacture of finished and salable axes, by the process described and claimed in the Palmer-Hubbard patent. Answer: Covered by the decision of the Supreme Court in Palmer’s App., 96 Pa. 106, and for that reason refused.5 14. That the1 controversy in this action requires a judicial construction of' the scope and effect of the letters patent No. 118,264, granted on August 22,1871, to George Palmer and Charles W. Hubbard ¡ and especially renders it necessary for the court to determine whether the grant under said letters patent is for a process or method, in such a sense that the use of one of the mechanical devices described therein would or would not constitute a use of such process or method within the meaning of said letters patent, and of the contract sued on, which said letters patent were in the words and figures following, to wit:.and which contract was in the words following, to wit:.And also to determine whether the use of the drop and dies, a a, for the purpose of shaping the poll and of further welding the poll after it had been welded under the trip or “little hammer” constitutes a use of the second claim of said letters patent within the true meaning of said letters patent and of the contract in suit. That the determination and decision of said questions are vested by the constitution and laws of the United States solely in the courts of the United States, and that therefore this court should non-suit the plaintiff, or direct the jury to find a verdict for the defendants, on the ground that this court has no jurisdiction to decide said questions in controversy. Answer: Refused.9 The jury found for the plaintiff in the sum of $16,750.80. Judgment having been entered, the defendants took this writ and assigned as error: 5, 9. The answers to defendants’ points.5 9 10 The part of the charge embraced in[ ] 10 11, 12. The refusal of the defendants’ offers.11 18 13. The admission of plaintiff’s offer.13 1. Much discussion and some difference of opinion have arisen under §§ 629 and 711 of the Rev. St. of the U. S. giving original and exclusive jurisdiction of all suits at law or in equity, arising under the patent and copyright laws, to the circuit courts of the United States; but we submit that under the law as established by the decisions, when the controversy involves, not merely the construction of a contract, but necessarily requires an examination and construction of tbe patent laws of tbe United States, tbe jurisdiction of tbe federal courts is exclusive: Dale Tile Mfg.'Co. v. Hyatt, 125 U. S. 46. Tbe application of tbe principle to tbe case in band is very ready. Tbe court below could not instruct tbe jury without determining tbe question, whether tbe use of one of several devices constituting a claim for a process, was or was not an infringement or use of tbe process. To determine that question required tbe court to construe and apply, not common law principles, but tbe doctrines and effect of tbe patent law of tbe United States. 2. Every patent must be construed according to tbe language of its claims. It is these which determine tbe nature and extent of tbe privilege granted by tbe patent; and the specifications can be consulted only for tbe purpose of illustrating tbe claims, not for tbe purpose of enlarging tbe scope of tbe invention therein stated: Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S. 274; Railroad Co. v. Mellon, 104 U. S. 118; White v. Dunbar, 119 U. S. 51. Tbe only process claimed by tbe patentees, and therefore tbe only process covered by tbe terms, process described and claimed, used in the agreement, is that embodied in paragraph 1 of tbe claim. Tbe other claims do not relate to processes at all, and it is well settled that where a patent contains a number of items of claim, as in this case, each claim is in effect a separate and distinct patent, and must be separately construed: Merrill v. Yeomans, 94 U. S. 568; Cochrane v. Deener, 95 U. S. 355. In such case tbe claim must be construed to be co-extensive with tbe description and refer to tbe whole thereof, so that it must be taken as being for a process including in combination, not any one step, but all the steps named in tbe specification: Evans v. Kelley, 13 Fed. R. 903; Dobson v. Doman, 118 U. S. 11; Dobson v. Bigelow, 114 U. S. 439; Hammerscblag v. Garrett, 10 Fed. R. 479; Voss v. Fisher, 113 U. S. 213; Blake v. San Francisco, 113 U. S. 680; Cotter v. Copper Co., 13 Fed R. 237; Wier v. Morden, 125 U. S. 98; Sargent v. Hall S. & L. Co., 114 U. S. 63; Snow v. Railway Co., 121 U. S. 617; Campbell v. Cavenaugb, 11 Fed. R. 87. 3. If, however, it should be held that tbe defendants have used tbe second claim, and that tbe contract was made in contemplation of all claims, the plaintiff is in no better position. We therefore contend on the hypothesis that they have not used claims 1, 8 and 4, and that the contract relates to four claims, only one of which was used, that the plaintiff cannot recover the same amount as if all the claims had been employed: Proctor v. Brill, 4 Fed. R. 415; Wooster v. Simon-son, 16 Fed. R. 680; Willimantic Thread Co. v. Clark, 27 Fed. R. 866; Westcott v. Rude, 17 Fed. R. 834. It is not an answer to this position to assert that the contract is entire and indivisible, because in such view it would follow clearly that the contract being for the payment of a fee for the use of a patent as an entirety, unless the patent were so used as an entirety, no liability would arise at all: Nye v. Raymond, 16 Ill. 153; Emery v. Cavenaugh, 27 Fed. R. 512. 1. The federal courts have uniformly ruled that an action on a contract to recover royalties due for the use of a patented invention, if the parties are residents of the same state, is within the exclusive jurisdiction of the state courts. One of the very first steps in making out a case of that character is proof that the defendant had made use of the patented invention for which the contract bound him to pay royalty; and it would be preposterous to hold that the state court must arrest the proceeding whenever the defendant raises a question about his use of the patented device. Such question may involve a construction of the patent, in so far as it may be necessary to determine its scope ; but it is competent for the state court to determine the scope, as well as the validity, of a patent when it becomes necessary for the adjudication of a cause that is properly before it: Slemmer’s App., 58 Pa. 155. The first case before the Supreme Court of the United States was Wilson v. Sandford, 10 How. 99, and the very point made by the defendants is directly ruled against them in Albright v. Teas, 106 U. S. 613, and in Felix v. Schwarnweber, 125 U. S. 54. 2. We deny that there is any patentable process described and claimed in the patent, as distinguishable from the mechanical devices therein described and claimed. The patentee of a process is required to describe one or more instrumentalities by means of wbicli it can be practiced, but he is not confined to the instrumentalities so described, and his patent is infringed by any one who uses his process without license, although such use be effected by mechanism totally different from that described in the patent: Tilghman v. Proctor, 102 U. S. 707, 728; Corning v.- Burden, 15 How. 252. The word, process, as uséd in the contract in suit, was not employed and understood by the parties in its patent law sense, and it could not have been so used, because the patent does not describe and cover a process as distinct and distinguishable from the mechanical devices, or sets of dies, described and claimed as the invention of the patentees: Palmer’s App., 96 Pa. 106. &. The assignments of error relating to the refusal of defendants’ offers of evidence, are not. assigned in conformity with the rules of this court. But even if it were competent to contradict the patent record by proof that Hubbard and ■ Palmer were the respective sole inventors of different parts of the invention, the contract, nevertheless, binds the assignees to pay royalties for the use of the invention. Moreover, the opinion of an, expert witness that, under the principles of the patent laws, the use of one device of a series of several devices patented as a process, would not be the use of said process, is not admissible for any such purpose: Winans v. Railroad, 21 How. 88 ; Corning v. Burden, 15 ‘How. 252.
123 Pa. 212Fifth N. Bank v. Ashworth (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 77 October Term 1888, Sup. Ct.; court below, No. 175 April Term 1885, C. P. No. 2. A summons in case to the first Monday of March, 1885, was issued' in an action by William W. Ashworth against the Fifth National Bank of Pittsburgh, to recover .the sum of $2,622.25 with interest from May 24, 1884. ,, At the trial on February 9, 1888, the facts of the plaintiff’s were these: ,,On May 20, 1884, the plaintiff received from T. J. Watson his check on the Penn Bank for $2,622.25, and the same day indorsed and delivered it to the defendant bank, and received credit for it on Ms deposit account. The next day, May 21st, the check was presented for payment through the clearing house, but before noon that day the Penn Bank closed its doors, and that check, with others going with it through the clearing house, was not paid. It was then returned through the clearing house to the defendant bank, protested for nonpayment, and charged back to plaintiff. On the afternoon of May 23d, the Penn Bank opened its doors for business for a short time, and was again open the next day, the 24th. On the morning of the 24th, which was Saturday, the defendant bank sent the Watson check to the Penn bank, with other protested checks of small amount it held, and received a cashier’s check for the aggregate amount, $2,932.14, delivering up the checks. The check given by Watson was then charged up to his account by the Penn Bank and placed upon the file for cancellation. On this day the Penn Bank paid all checks presented. The cashier’s check received by defendant bank was the same day deposited with the Tradesmen’s N. Bank, through which it cleared, but on Monday, May 26th, the Penn Bank, though open for a few hours, closed its doors finally without paying any of the checks upon it coming through the clearing house, the Watson check being among them. In the defendant’s case, L. H. Williams, the cashier, testified that on May 21st, the plaintiff had drawn his own check upon defendant bank for $1,025, which came in and witness refused to honor it, as by the dishonor of the Watson check, the plaintiff’s account was not good for the amount and he notified the plaintiff thereof; that the plaintiff, as he afterward told the witness, then went to Watson, obtained from him $1,025 and took up his check himself. The defendant then proposed to prove by the witness that the Fifth National Bank, as well as other banks of the city, had been requested by the Farmers Deposit National Bank, through which bank the Penn Bank cleared, not to send the protested checks separately into the clearing house, but to consolidate them in the shape of a cashier’s check or memorandum, and send that; and in pursuance of that request the Fifth National Bank exchanged the protested checks held by it, including the check sued on, for a cashier’s check or memorandum check; this as bearing on the question of diligence in the matter. Objected to because tbe plaintiff is not a party to tbe transaction and bad no notice of it, and as incompetent and irrelevant. By tbe court: Objection sustained.1 Tbe witness then testified in substance, under objection and exception, tbat tbe plaintiff wben informed of the transaction, after tbe final closing, expressed bis satisfaction with wbat bad been done, because, bolding the Penn Bank’s cashier’s check instead of Watson’s,, be thought be was in a better position, and at the same time, he had received from Watson $1,025 on account of tbe debt. Other testimony was adduced, under like objection, to -the effect tbat this receipt of $1,025 was on account of tbe debt. Tbe court, EwiNG-, P. J., charged tbe jury tbat if they found tbat on May 24th, tbe Penn Bank was paying checks upon it in tbe usual way of business, tbe receipt by the defendant bank of the cashier’s cheek was a payment of tbe Watson check; tbat whether the receipt of tbe $1,025 by the plaintiff from Mr. Watson, was an account of the Watson check, as claimed by tbe defendant, or was a temporary loan, as claimed by tbe plaintiff, was immaterial to tbe defendant, and answered tbe points presented as follows : Tbe plaintiff requests the court to charge tbe jury: 1. Tbat under all tbe evidence in tbe cause tbe plaintiff is entitled to recover tbe sum of $2,622.25 with interest thereon, from May 24, 1884, and tbe jury are instructed to find a verdict in bis favor accordingly. Answer: Affirmed, if tbe jury believe tbe evidence.8 If the court refuse this point then tbe following instructions are requested: 2. That a bank, with which a check has been deposited for collection, has no right to accept therefor a cashier’s check. Such collecting bank must present tbe check for payment and only for payment, and if it surrender its depositor’s check to tbe bank on which bis check is drawn and accept from tbe latter bank the check for a like sum of tbe cashier thereof, it is liable to such depositor, because tbe law presumes damage; and the measure of its liability is tbe amount of tbe check, with interest from tbe day of its surrender. Answer: Affirmed. 8. When a collecting bank presents the check of its depositor to the bank on which it is drawn, and, instead of requiring payment thereof, surrenders the check to such drawee and accepts for it a check for a like amount of the drawee’s cashier, it is, as between the owner of the check so deposited for collection and the maker thereof, a payment thereof, and such maker is discharged from all liability with respect to it; and, as between such collecting bank and its depositor, it is attended with the legal consequences of actual payment thereof. Answer: Affirmed. 4. Hence if the defendant assumed the duty of coilecting the check drawn by T. J. Watson to the plaintiff’s order and surrendered such check to the drawee thereof, the Penn Bank accepting for it the check for a like sum of the cashier of the said Penn Bank, the plaintiff is entitled to recover and the jury will find a verdict in his favor for $2,622.25, with interest thereon from May 24, 1884. Answer: Affirmed. The defendant requests the court to charge the jury : 1. That if they find that the check given by T. J. Watson to the plaintiff on the Penn Bank, and deposited by the plaintiff with the defendant bank, was presented by the defendant in due and proper time to the Penn Bank and was dishonored, by reason of the closing and failing of the Penn Bank on May 21, 1884, and thereupon was protested by the defendant and charged back to plaintiff’s deposit account with the defendant, and notice of these facts given to plaintiff, the defendant no longer owed any duty to the plaintiff with reference to said check, and a re-deposit of said check with the defendant cannot be inferred from the mere fact that after the dishonor of said check and the charging of it up to defendant’s account by the defendant, the plaintiff did not withdraw it from the defendant’s hands. Answer: The first point is refused. It may be that after the check was protested and charged up against the depositor, the defendant bank was not bound to go further without the direction of plaintiff. But they assumed to act as though it was still deposited with them and delivered up the check belonging to their depositor. 2. That after the happening of the facts set out in the foregoing point, if the jury find them to be true, the defendant was not bound to take any action whatsoever with reference to the dishonored check, even though the Penn Bank opened its doors and resumed business, until it was instructed with reference thereto by the plaintiff; and if before receiving any such instructions it voluntarily presented the check in question to the Penn Bank, not for payment, but for the purpose of obtaining a cashier’s check for it and other checks, for the purpose of sending the same through the clearing house, it cannot be held liable by reason of the fact that when the cashier’s check reached the Penn Bank through the clearing house it was not paid, even though the jury believe that the check in question would have been paid if payment had been demanded when the cashier’s check was taken, unless the jury find that under all the circumstances the defendant was guilty of gross negligence in the premises. Answer: The second point is refused. If you believe the testimony, which is uncontradicted, that the defendant bank delivered up the Watson check to the Penn Bank and accepted a cashier’s or teller’s check for it and other checks combined, and the Watson check was charged up to him on the books of the Penn Bank and the check canceled on May 24,1884, it was a payment of the Watson check as between the Fifth National Bank and Ashworth. 8. That if Ashworth, the plaintiff, on Saturday morning, May 24, 1884, was informed of the voluntary action of the defendant as to the cheek in question and that it had taken a cashier’s check to be sent through the clearing house and did not object thereto or demand greater diligence from the defendant, he cannot recover. Answer: The third point is refused. There is no pretence of an order from Mr. Ashworth to the bank to so present' his check, and there is no evidence of notification or of any act of Ashworth to relieve the bank from the responsibility it assumed in surrendering the check and accepting the check of the Penn Bank therefor. 4. That the defendant was not bound to anticipate the reopening of the Penn Bank or to keep itself informed promptly as to the fact of such re-opening. Answer: The fourth point is affirmed. 5. That the fact of the suspension of the Penn Bank did not, after its re-opening, impose upon the defendant the duty of exercising with reference to checks upon it any higher degree of diligence than it was bound to exercise with reference to checks upon any other bank. Answer: The fifth point is refused. The jury returned a verdict for the plaintiff for $8,095.15. A rule for a new trial being refused, the defendant took this writ assigning as error: offer.1 answer plaintiff’s first point.8 a on Saturday, the payee has until the close of banking hours on Monday to present it: Mead v. Caswell, 9 Mod. 00; O’Brien v. Smith, 1 Black 99. Presenting a check and having it certified is not a demand for the money deposited: Girard Bank v. Bank of Penn Tp., 39 Pa. 92. By the certification of a check the drawer is not discharged : Beckford v. First N. Bank, 42 Ill. 238. The alleged negligence, therefore, upon which the recovery was had, lay solely in the fact, that instead of having the Watson check certified, the defendant accomplished the same end by taking for it a cashier’s check, for the cashier’s check was not essentially different from the ordinary certified check. Moreover, the act of the defendant was affirmed by the plaintiff, when if he had spoken he would have received his money, as the cashier’s check if presented over the counter on Saturday would have been paid. Again: After the first suspension of the Penn Bank, Watson paid Ashworth $1,025 on account of the check. The check then stood as an order by Watson on the Penn Bank to pay to him $1,025 and to pay the residue to Ashworth. case the surrender of the Watson check and the acceptance of the cashier’s check in its stead, was to be followed by all the legal consequences of actual payment and put the defendant in just the same position as if the Watson check had been paid in good current funds: Essex Co. N. Bank v. Bank of Montreal, 7 Biss. 193; Smith v. Miller, 43 N. Y. 171 (3 Amer. R. 690) ; First N. Bank v. Leach, 52 N. Y. 350 (11 Amer. R. 708); Commercial Bank of Penn. v. Union Bank of N. Y., 1 Kern. 203; Story on Prom. Notes, §§ 115, 389; McCulloch v. McKee, 16 Pa. 294: Hays v. Lynn, 7 W. 524; Story on Agency, 115, 451; Ward y. Smith, 7 Wal. 447; Marine Bank y. Fulton Bank, 2 Wal. 253; Merchants N. Bank y. Goodman, 100 Pa. 422. The doctrine of affirmance or ratification is not applicable. A full knowledge of the facts and circumstances are necessary to a ratification, and the party must know he would not be bound without such ratification: Pittsburgh etc. R. Co. v. Gazzam, 32 Pa. 840; Persch y. Quiggle, 57 Pa. 260; Moore y. Patterson, 28 Pa. 505; Schrack y. McKnight, 84 Pa. 26. As to the $1,025, which the defendant claims should have been allowed in reduction of plaintiff’s demand, it is submitted that when the courts say that the surrender of a depositor’s check to the drawee and the acceptance■of something else in lieu thereof, is attended with all the consequences of actual payment, they mean something.
123 Pa. 220Chartiers V. Gas Co. v. Waters (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY. No. 12 October Term 1888, Sup. Ct.; court- below, No. 189 January Term 1887, C. P. No. 2. To the first Monday of December, 1886, a summons in case issued in an action by W. W. Waters against the Philadelphia Go., the Chartiers Valley Gas Co., and the Pittsburgh Gas Co. The defendants pleaded, not guilty. When the case was called for trial on September 27,1887, the plaintiff took a nonsuit against the Pittsburgh Gas Co., when the following facts appeared in evidence : On May 4, 1886, the Chartiers V. Gas Co., a corporation organized under the act of May 29, 1885, P. L. 29, entered into a written contract with one Martin Joyce to lay down a twenty inch cast-iron main between certain points on certain streets in Pittsburgh, inter alia, upon Penn street, passing Hotel Anderson. The contract bound Joyce to dig the trench, to lay the pipe, refill the trench, pave and clean up the streets, etc., “ all in accordance with the specifications which accompany and are a part of this agreement,” and to give bond in $10,000 with approved sureties, “ to insure the faithful performance of this contract.” The specifications referred to embraced, inter alia, the following provisions : “ Second party is to furnish at his own cost all the labor and tools necessary for digging trench, laying and testing pipe, in the manner and within the time herein specified; to furnish labor for putting in ventilating posts or escapes, sleeves, gates and fittings, and to furnish all lead used in caulking, lumber to brace trench, build bridges or barricades, and all appliances for testing the pipe, and all other material or supplies necessary for the performance of the work, excepting cast iron pipe, sleeves, valves, fittings, gate boxes and covers for main pipes, small escape pipe and fittings for same, and lamp posts and covers, which shall be furnished and delivered along the ditch by the said first party. * * -*■ * * * * * “ Said second party is to furnish watchmen, red lights at night, and to put up such barricades wherever said ditch is open as may be necessary for the' proper protection against accidents; bridge said ditcb whenever the same may be necessary for tbe public travel; to brace and protect all water or other pipes; and whenever any damage is done to the same, it is to be repaired by the said second party at his own cost; to fill up and tamp the dirt in said ditch, repave street, relay pavement, set curb stones, and clean up the street to the satisfaction of the' superintendent of said first party and the city engineer.” The line of the Chartiers V. Gas Co. was laid on Penn street, at Hotel Anderson, next to the curb, the location having been selected by the city engineer. Five feet distant from it was the line of the Philadelphia Co., transporting natural gas, and beside the latter were the lines of the Consolidated Gas Co. and the Pittsburgh Gas Co., supplying artificial gas. To get beneath a sewer on Sixth street, crossing Penn street, the contractor for the Chartiers Y. Gas Co. had to go to a depth of eight feet at a point on Penn street opposite said hotel. The plaintiff liad a book and stationery store on Penn street adjoining the hotel, and on the evening of July 14, 1886, a series of explosions occurred upon the pavement and in the adjoining buildings, resulting in injuries to the plaintiff’s stock. Investigation after the explosion disclosed, that the gas mains already in the street had been exposed in digging' the trench, and that from careless bracing, careless re-filling and tamping of the trench, they had settled down, resulting in the breaking of an elbow connecting a service pipe with the Philadelphia Co.’s main, and other injuries of a like nature, permitting an escape of gas. No gas was admitted into the Chartiers Y. Gas Co.’s line until July 29th, and at the time of the explosion, the contractor was still engaged upon the line, a short distance below where the explosion occurred. The court, EwiNG, P. J., upon the question raised in this court instructed the jury: If the Chartiers company in making this excavation and in filling up, or at the time of filling up, used reasonable care under the circumstances (and that would be great care under the perils of this case) in supporting that pipe against what would be the natural consequences of a supervening weight, and after they had exercised that care and precaution necessary from the great danger of the situation an accident had occurred, they would not be liable : they would have performed their duty, and an injury occurring after that would be one of those accidents that every man is liable to suffer and has to bear himself. But if they were guilty of negligence in a failure to properly support and prop this pipe that they had undermined, and the accident occurred by reason of their negligence, and was the natural result of it, then they would be liable. [The Chartiers .company claims, however, to be free from liability, because, they say, they had given out a contract to do this entire work (apparently laying their main pipe all through Pittsburgh) to one Martin Joyce, and that it was his duty to see to this propping and the proper filling of the trench; that as they had no power over it, therefore they are not liable, and have asked us to so instruct you, which we refuse to do. The ordinary rule is, as claimed by the learned counsel for the Chartiers company, namely, that where an owner or a company having a work to perform gives out the contract as a whole to some independent contractor, who has charge of the entire business, and an accident occurs by reason of the negligence of that contractor, the owner is not responsible. That is a general rule and a particular rule. It has some exceptions, however. If the owner or the party giving out the contract has a special duty to perform to another, private or public, the failure to do which is negligence, he cannot get rid of the obligation by giving out a contract to a third party. If, when the contract is given out for the work in contemplation and necessary to be performed, great danger is incurred, or an injury may be done to the public or to some private person that requires great care to guard against, the owner or party giving out the contract must see that the contractor or somebody else guards against it. As, for instance, if a contract for a building contemplates a great excavation out into the street by the contractor, which is very dangerous, I take it that the owner must see that the public is protected in that case. The failure to perform some duty that is an ordinary one of the contractor, or the doing of some act by the contractor not necessarily contemplated in the contract, would be the negligence of the contractor alone; as in this ease, any act causing an injury done by Martin Joyce, which was not fairly necessary in the contemplation of the contract between him and the Chartiers company, would be Martin Joyce’s negligence and not that of the company. For instance, if he failed to put lights or proper protections in his trench and somebody fell into it (and a great many like things) the company would not be responsible. But the very contract itself in this .case contemplated and made necessary the excavation and undermining of this service pipe. It was in contemplation of the parties that it should be done. It was the thing that the Chartiers company directed by its contract should be done by Martin Joyce, and they owe a duty, as I have said in answer to one of the points, to the owner of that pipe and to the public, to take reasonable care to see that it was properly supported; and the consequences of failure to perform that duty cannot be gotten rid of, simply because there was a general contract on the part of Martin Joyce to do it, and he may be, and no doubt is, responsible to them for his negligence. As I have said, if this accident occurred by the negligence of Martin Joyce in doing something not contemplated in the contract— if, for instance, he had properly protected this service pipe and given it a secure and complete foundation so that it would not sink down, and then negligently himself in filling up or paving over it caused the injury, the Chartiers company would not be responsible. That is something that would be Martin Joyce’s negligence; that is something not necessarily in contemplation of the parties when the contract was made.] 3 The question I may say to the jury, as I have stated to counsel in your presence, is in my judgment a close one. I do not think it is absolutely ruled by any case in Pennsylvania. I have given you the instructions as to what in my judgment is the proper rule of law under the peculiar circumstances of this case, and under the act of assembly and the ordinance of the city of Pittsburgh, and if I am wrong the Supreme Court will correct me. I have given the ruling that I'think is supported by authorities in this country and in England, and a rule that in my judgment is necessary for the proper protection of the public..... Counsel for the Chartiers Yalley Gas Company, respectfully ask the court to charge the jury as follows, viz.: 1. Tf the jury should find from the evidence that the digging of the trench, laying of the pipes, filling the trench, etc., was done by Martin Joyce, under the contract in evidence between said Joyce and the Chartiers Valley Gas Company, and that the injury was caused by the negligence of Joyce in doing said work, and before it had been accepted and taken off Joyce’s hands by said company, Joyce would be the one liable to plaintiff, and the verdict in this ease should be for the Char-tiers Valley Gas Company, defendant. 2. There is no sufficient evidence to justify the jury in finding a verdict against the Chartiers Valley Gas Company. Answer: The points submitted by counsel for the Chartiers Valley Gas Company are refused except as affirmed in the general charge. There is evidence from which the jury may fairly find, that the accident occurred by reason of the breaking of the service pipe of the Philadelphia Company, and that the breaking of this pipe was caused by tbe taking away the proper support of said pipe by the digging of tbe trench and laying of the large main of the Chartiers Valley Gas Company, and failure to renew the support. When the Chartiers company undertook to lay its main along Penn street, in the city of Pittsburgh, under the act of assembly and the city ordinance, and contracted for tbe laying thereof, it owed to the Philadelphia Company, which bad already bad its pipes there, and to the property holders and to the public, a duty of supporting such pipes. This duty was a positive obligation which they could not get rid of by giving a contract to a third party to do the work. If the pipe broken was necessarily undermined and its support taken away by tbe laying of tbe Chartiers company’s main, as contemplated in the contract with Martin Joyce, and it was not supported by that company or its agent or contractor, but left without reasonable or proper support from an ordinary pressure from above, and thereby it was broken so as to cause the gas to escape, and thereby canse the accident, the Chartiers company cannot escape tbe consequence of the neglect of its obligation, by showing that they bad contracted with another to perform the duty. The act of assembly provides that “ any company laying a pipe line under the provisions of the act shall be liable for all damages occasioned by reason of tbe negligence of said company.” There is also evidence from which the jury may fairly find — in fact it is the uncontradicted testimony — that the Chartiers company’s main had been fully laid and completed for a considerable time, past the place complained of, and the trench filled up and the pavement relaid, and also that the superintendent of the company had full notice and actual knowledge of the faulty manner in which its contractor was performing the duty of securing the pipes of other companies.1 The jury returned a verdict for the plaintiff against the Char-tiers V. Gas. Co. for 1682.42, and for the defendant as to the Philadelphia Co. Judgment having been entered, the Char-tiers Y. Gas. Co. took this writ, assigning as error: 1, 2. The answer to defendant’s points.1 3. The part of the charge embraced in [ ] 3 1. The evidence offered upon the trial below in this case was almost identical with that offered in the trial of Chartiers Y. Gas. Co. v. Lynch, 118 Pa. 362, and no question is involved that is not fully covered by the decision in that case, which, however, had not been decided when this case was tried. It follows that the gas company brought itself within the well known principle that one who renders services in the course of a lawful employment, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished, is an indepéndent contractor, and his principal is not liable for his negligence. It is difficult to see how the provision of the statute, the second proviso to § 10, act of May 29,1885, affects the company’s liability, as it would be liable for its' own negligent act irrespective of any such provision. 1. In Chartiers Y. Gas. Co. v. Lynch, the ruling of the court below upon the question raised in this case was affirmed with regret. The case was tried upon the assumption that the liability arose by reason of the gas company having taken negligent work off the hands of the contractor, knowing that it was negligently and dangerously done, and the judgment was reversed because of insufficient evidence to sustain the points made. The present case below was put on a modification of the doctrine as to independent contractors. 2. The distinction contended for is akin to that which arises in certain eases between master and servant. When the master or superior places entire charge of his business, or a distinct branch of it in the hands of an agent or subordinate, exercising no discretion or oversight of his own, the master is held liable for the negligence of such agent or subordinate : Mullan v. Steamship Co., 78 Pa. 25; New York etc. IT. Co. v. Bell, 112 Pa. 409. So in this case, when the property or the rights of others axe necessarily to he interfered with, we claim the responsibility cannot he delegated. If, of two adjoining houses having a mutual easement of support, one is to be taken down, and the act necessarily endangers the other, there is no justice, whatever the law may be, in permitting the owner who removes the building to shift his duty over upon a contractor who may he wholly irresponsible. 3. Where the employer of the contractor has no duties, but the contractor has, the contractor is liable; but where the employer has a duty towards the plaintiff, he cannot delegate its performance to a third person: McLaughlin v. Pryor, 4 M. & G. 48. Where an obligation is imposed upon any person by statute, he cannot escape it by employing a contractor: Smith on Negligence, 88* ; Gray v. Pullen, 5 B. & S. 970. Where a corporation has a positive duty to perform, it is no answer to an allegation of negligence on its part, that it contracted with a competent person for the performance of the work: Grote v. Railway Co., 2 Exch. 251. Now, the act of 1885 made the defendant company liable for all damages occasioned by its negligence, meaning, of course, in the performance of any duty under its charter, one of which was the duty of laying these mains.
123 Pa. 231Road in Sterrett Township (1889)
CERTIORARI TO THE COURT OE QUARTER SESSIONS OE ALLEGHENY COUNTY. No. 83 October Term 1888, Sup. Ct.; court below, No. 7 June Term 1887, Q. S. On July 2, 1887, the petition of sixty-eight citizens of Sterrett township was presented setting forth that by virtue of proceedings in said court at No. 6 June Term 1884, a road was laid out beginning on the east line of the city of Pittsburgh, at the intersection of Waverly lane and Peebles avenue in said city, thence by certain courses and distances to the Edgewood public road, near the Home of Aged Women (see Sterrett Tp. Road,' 114 Pa.. 627); that the portion of said road lying between Hay street and Wood street, in the village of Wilkinsburg, where it crosses the tracks and right of way of the Pennsylvania R. Co., at the grade of said railroad tracks, has not yet beén graded for public use; that that portion of said road could be graded and maintained for public use as a highway, only at great expense, and when so graded and used it would be a grade crossing very dangerous to the lives of persons using the same; praying for the appointment of viewers to view and vacate, etc. ' On the same day viewers were appointed. The return day of the order having been extended till December Term, pending a motion to vacate the appointment of viewers, overruled, on December 10, 1887, a report was filed setting forth that the portion of said road extending from Hay street over the right of way of the Penn. R. Co. had become useless, inconvenient and burdensome, was unnecessary for the accommodation of the public in said township, and ought therefore to be vacated, for various reasons, set out at length, certain of which were as follows: 4. That at the' particular point where said portion of said street is located the Pennsylvania Railroad Company has a system of interlocking switches operated by electricity and compressed air from a signal tower erected on the line of said street which were placed there prior to the location of said township road mentioned in the precept in this case, and at a cost of between forty and fifty thousand dollars; and that the opening of said street at grade across the said switches would involve the destruction thereof; and that the said switches are necessary for the operation of the Pennsylvania Railroad at that point. 5. That there is now opened a public road, called South street, across the Pennsylvania Railroad at grade, parallel with this road, and at a distance of only two hundred and sixty-four feet northwardly therefrom, which is connected with this road by cross streets immediately east and west of the portion vacated. 6. That there is a public road, called Rebecca street, opened across the tracks of the Pennsylvania Railroad at grade, parallel with this road, and located only two hundred and sixty-four feet southwardly therefrom, and connected with this road by cross streets immediately east and west of the vacated portion of this road. On' December 24, 1887, exceptions to the said report were filed, which inter alia were as follows : The report of viewers should not be confirmed for the following reasons, to wit: 1. This court has no jurisdiction. That portion of Sterrett township which embraces this road was incorporated into the borough of Wilkinsburg by proceedings at No. 40 March Sessions 1887, of this court, before the report of viewers in this case. The act of May 3,1855, P. L. 422, regulating this proceeding, provides, “ That this act shall not apply..... to any street, lane or road within any incorporated city or borough.” 1 2. The reviewers report “that the portion of the public road referred to in the petition of this case, and the vacation whereof we recommend, has never been opened for public use, although laid out by authority of law.” In such cases, § 19, act of June 13, 1836, P. L. 558, to which the act of 1.855, supra, is supplementary, requires “ the petition of a majority of the original petitioners for the said road resident within the respective county ” in order to vacate, which was not done in this case. Said exceptions having been argued, the court, Stowe, P. J., on March 9, 1888, filed the following opinion and decree: This is a proceeding to vacate a portion of a road or public highway under the acts of 1855 or of 1836, as either may The power of the court to consider and determine the case as presented by the petition, has been fully adjudged by this court on a motion to vacate the appointment of viewers. I fully agree with the judge then deciding that matter, that the petition cannot be sustained under the provisions of the act of June 13, 1836, P. L. 558, and also that it may be sustained under the act of May 5, 1855, P. L. 422. It appears, however, that since the petition was filed a large tract of land upon which the portion of the road sought to be vacated was located, has been incorporated into the borough of Wilkinsburg, and it is now claimed by exceptants that this has ousted the jurisdiction of the Court of Quarter Sessions in this case, and that it has now no further jurisdiction in the premises. It seems to me that this exception is well taken. The act provides that “ The said court shall proceed by views and reviews in the manner provided for the vacating of other roads by existing laws ; provided, this act shall not apply to any street, lane or road in any incorporated city or borough.” It is apparent that this act cannot be fully carried into effect now, unless we hold that because the petition was filed before the borough was incorporated, the act is to remain in full force and effect in all respects as though the borough had not been incorporated, not only as to this proceeding, but in reference to a review or re-reviews which might be applied for hereafter. The general rule is that all proceedings under a special anthority created by act of assembly are, ipso facto, terminated by a repeal of the statute creating it: Commonwealth v. Beatty, 1 W. 382; citing, Hatfield Tp. Road, 4 Y. 392, where it was held that proceedings laying out a road under certain acts of assembly were terminated by a repeal of the acts. I can discover no difference in principle between that case and this. It is true the act is not repealed, but the circumstances under which ■ the act, by express terms, took effect, have changed so as to bring them within the proviso, and ojaerated in that way as a substantial repeal of the act so far as this case is concerned. For this reason I am compelled to sustain the first exception and refuse to approve the report of viewers, and the same is now set aside.3 Thereupon, the petitioner took this writ, assigning as error: 1. The order sustaining the first exception.1 2. The order setting aside the report of viewers.3 1. The contention on the part of the petitioners is that the jurisdiction of the court must be determined by the state of facts at the time the proceeding was commenced, and that if the court then had and assumed jurisdiction of the controversy, its jurisdiction could not be ousted by any state of facts which subsequently arose: Wells on Jurisdiction, § 79; Molían v. Torrance, 9 Wheat. 589; Upton v. Railway Co., 25 N. J. Eq. 875; Salter v. Salter, 6 Bush 632 ; Tindale v. Moecher, 1 Scam. 137; Anderson v. Henzey, 7 W. N. 39; Quakertown Borough, 3 Gr. 203. 2. But if we are wrong so far, we think the jurisdiction of the court can be sustained under the act of May 10, 1871, P. L. 704, providing: “That the Court of Quarter Sessions of Allegheny county shall have power to vacate the whole or any part of any street, lane or alley, laid out in any borough incorporated therein, in case the same has never been opened or used by the public, or has been supplied or rendered unnecessary by the opening or laying out of a street or highway in the place thereof,” etc. 1. The Court of Quarter Sessions has no power but what it gets from the statute: Liberty Alley, 8 Pa. 382; and in all the cases it is held that when a law, or the repeal of a law, takes away the jurisdiction of a court, the proceeding upon it falls, although where the remedy only is changed, it may be otherwise: Hickory Tree Road, 43 Pa. 138 ; Commonwealth v. Beatty, 1 W. 382 ; Hampton v. Commonwealth, 19 Pa. 329; North Canal Street Road, 10 W. 351; Stoever v. Immell, 1 W. 258. 2. The act of May 10, 1871, P. L. 704, applies only to streets never opened or used by the public. Our street is entirely open, except the part proposed to be vacated. But the point has been fully determined in Greenwich Tp. Road, 11 Pa. 188, where this court held that § 18 of the act of June 13, 1836, P. L. 558, relates to and contemplates roads that have been opened and used and have become useless, inconvenient and burdensome; that § 19 only authorized such a proceeding when the road is not opened. To provide a remedy, the act of May 3, 1855, P. L. 422, was passed, and the proceeding must be under this act or not at all,
123 Pa. 240Montooth v. Gamble (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 144 October Term 1888, Sup. Ct., court below, No. 705 September Term 1886, C. P. No. 1. To tbe first Monday of September, 1886, a summons in covenant issued in an action wherein George K. Gamble, for use of J. M. Montgomery, was plaintiff, and C. C. Montooth, administrator of George Gray, deceased, and Lewellin Barum, were defendants, to recover damages for the failure to re-deliver to the plaintiff “1200 feet of railroad T iron; 855 feet of railroad with strap iron; one incline 135 feet long, with drums; drum house; shutes; screens, etc., and a blacksmith shop; of the value of $10,000,” on the termination of the lease of a coal plant to the defendants. The defendants pleaded, covenants performed, etc., and the statute of limitations. At the trial on October 24, 1887, the plaintiff put in evidence an agreement under seal dated April 8, 1867, between George K. Gamble of the first part and George Gray and Lewellin Barum, of the second part, witnessing: “ That the said party of the first part hereby agrees to sell and convey unto the said parties of the second part, all the bituminous or stone coal which is now in or under a certain tract or parcel of land in Chartiers, now Union township, in said county of Allegheny,.....together with the privilege to the said parties of the second part, to mine and remove the said coal, doing no unnecessary injury to the surface of said land, the said privilege of mining, etc., to continue for seven years from this date, and if the said coal shall be taken out in a less time than said seven years, the said lease to determine as soon as the said coal is all taken out, but to continue no longer than seven years from this date, whether said coal shall all be taken out within that time or not, unless the said parties of the second part should require to retain possession of said premises thereafter for the purpose of taking out other coal. In that case, the said lease shall continue if necessary to the end.of the seven years. “ Also all the bituminous or stone coal which is now in or under a certain other tract of land situated in said township of Chartiers, now Union, which said tract contains..... together with the privilege of necessary drainage and ventilation, ..... and the said privileges to be enjoyed by the said parties of the second part no longer under any circumstances than seven years from this date, and if the said coal should all be taken out in less than seven years from this date, the said privileges to cease and determine upon the said coal being all taken out, unless the said parties of the second part should require to retain possession of said premises thereafter for the purpose of taking out other coal. In that case, the said lease shall continue if necessary to the end of the seven years. “Also, two certain leases of lots and privileges from Mrs. E. F. Denny..... “Also all that now remains of certain bituminous or stone coal in or under certain land of Acksah Snodgrass,..... “Also, the new St. Clair Railroad T Iron of the said party of the first part,.....thirty-six distributing ears,..... twenty mules, suitable for railroad and coal pits, ..... two two-horse Wagons,.....six houses and a blacksmith shop on the aforesaid Denny leases,.....coal shutes and sidings for loading cars,.....thirty-five large cars on the Little Saw Mill Run railroad,.....seventy pit cars, more or less,.....rights to purchase coal privileges,..... “ For and in consideration of all which the said parties of the second part hereby agree to pay to the said party of the first part the sum of thirty-six thousand dollars, as follows, namely: ..... “And the said party of the first part hereby leases and rents to the said parties of the second part for the term of three years from this date, forty-three houses connected with and near to the said coal works, to wit, nineteen houses on the Patton farm aforesaid, twelve houses on the Foster farm and twelve houses on the Robert Snodgrass farm, for the yearly rent of forty-eight dollars for each house or two thousand and sixty-four dollars for the whole, to be paid monthly..... “ It is further understood and agreed by and between said parties that the said parties of the second part shall, at the end of the said term of seven years from the date hereof, remove from and give up to the said party of the first part the said coal pits and coal privileges whether all the coal hereby sold shall have been taken out or not. And in case it shall not all have been taken out at that time, such part thereof as shall not then have been taken out, shall revert to and and become the property of the said party of the first part. “ If the coal shall all be taken out of said premises before the expiration of seven years from the date hereof, the said parties of the second part shall rembve from said premises and give up peaceable possession thereof to the said party of the first part as soon as said coal shall have been taken out as aforesaid, unless the said parties of the second part should require to retain possession of said premises thereafter for the purpose of taking out other coal. In that case the said parties of the second part may retain possession for that purpose for any term not longer than seven years from this date. “ On the removal of the said parties of the second part from said premises, they shall have the right to remove the iron from said Saint Clair railroad sidings, etc., and the cars, shutes, wagons, tools of every description, etc., but that they shall not take down or remove any of the houses, shops, or other buildings. It is understood that the coal hereby sold amounts to about twenty^ix acres more or less, but there is to be no reduction of the purchase money if there should be less or increase if there should be more than that amount. • “ The said party of the first part hereby reserves from the above sale aixd lease his office and buggy shed on one of the Denny leases aforesaid, and five stalls in the stable in the end next his office, and the ground used for stable purposes at the end of the stable next his office.” 7& ÍS? vK' Indorsed upon said agreement was a receipt for the purchase money in cash and notes. It then appeared in evidence that Gray & Barum went into possession and commenced to mine coal, under said agreement, and continued until August 1, 1868, when Barum sold his interest iix the coal and other property described in the agreement to Isabella Bell, and. soon after removed from the state. Thereafter the property was occupied and operated by Gray & Bell, who just before April 8, 1874, surrendered the premises, Gray removing with him, for use elsewhere, as was claimed by the plaintiff, the property described in the narr. Gray died in 1881, aixd Mr. C. G. Montooth became Ids administrator. The court, Bailey, J., charged the jury as follows : It would seem that in January, 1867, the parties to this proceeding, one of whom is now dead but is represented here by his personal representative, made a contract respecting certain coal property and works connected with it, situate in the county of Allegheny; that an agreement was made in writing, which has been read to you, by which Mr. Gamble undertook to convey to Messrs. Gray & Barum the coal underlying certain lands and divers and sundry matters of personal property, coal cars, tools, etc.; that, in pursuance of this agreement, the defendants, Gray & Barum, wont into possession. There is no question that the property which is the subject of this action was received in possession by Gray & Barum (that is, the tipple, incline and siding or railway tracks at the bottom of the tipple), by virtue of this agreement, and that it remained in their possession until the time when, it is alleged, they violated this agreement by removing and taking away, for their own uses, the property in controversy here ; the incline, tipple, siding and whatever else there may bo involved. This action is brought under an alleged covenant in the agreement to re-deliver all the property not absolutely conveyed by the agreement. Now, the rights of the plaintiff to recover what he claims, if he be entitled to recover at all, arise under the possession taken in pursuance of this agreement. The allegation on the part of the plaintiff is, that these defendants were bound to deliver back to him this property at the end of the lease of seven years, but that, instead of doing so, they took the property and carried it away, and therefore he is entitled to damages. On the other hand, as I recollect it, counsel will correct me if I be mistaken, apart from some legal propositions there are two answers made by the defendants to this claim of the plaintiff: 1. That the plaintiff, Mr. Gamble, prior to the termination of this lease, had conveyed the surface land upon which were these various articles, the tipple, etc., and that, therefore, whoever is entitled to recover, if anybody, Mr. Gamble is not. And 2. That this property was conveyed to the defendants by tins agreement, and therefore they had a right to make such use of it as they saw proper. Those are the two principal matters of defence. I can state what I have to say in respect to these matters and any other legal questions involved, in answer to the points submitted by the counsel for the defendants. I will not take them in. the order they have been presented, but in an order that will suit my purpose better. The seventh point of the defendant goes to the right of the plaintiff or any other party to recover. 7. If the tipple, etc., were removed wrongfully, the right of action accrued immediately, and if no action was brought therefor within six years after such removal, the statute of limitations is a complete bar, and the plaintiff cannot recover. Answer: Refused. 5. If any action accrued to the plaintiff for the removal of any property from the premises after the expiration of the agreement in evidence, the action should be trespass against the wrongdoers, and not covenant against the defendants in this suit; and, more than six years having elapsed since said trespass and before the bringing of this action, the statute of limitations is a complete bar. Answer: Refused.5 Under all tbe evidence in tbe case tbe plaintiff is not entitled to recover. Answer: This point, if affirmed, would take the case entirely from you, and leave you no duty to perform, and is refused.3 2. There is no competent evidence to show that tbe use plaintiff has any interest in tbe property in dispute. Answer: Affirmed. 6. That tbe agreement between Gamble and Gray & Barurn does not contain any covenant to leave the property in dispute on tbe premises; therefore, tbe plaintiff has no right of action therefor, and cannot recover in this form of action. Answer: Refused. If there be no covenant expressed in words, there is an implied covenant in every lease of property, (as this would practically be), to re-deliver the property at the expiration of the lease, reasonable wear and tear and accidents-excepted.6 The third and eighth points are upon the same subject matter: 8. There is no evidence to show that George K. Gamble has any interest in the property in dispute. Answer: To affirm this point would be to take the matter entirely out of your hands and it is refused.3 * * * # The other defence is contained, as I take it, in the fourth point: 4. Under the terms of the agreement of sale between Gamble and Gray & JBarum, defendants had a right to remove the property therein sold, excepting the office and stable reserved therein for the use of the grantor. Answer: That point as drawn can be affirmed. Of course,, whatever was sold to these defendants, they had a right to takeaway. But it was probably not intended to be limited to that,, but was intended to mean this property in controversy, it not being excepted. The only question is whether this' property was sold. If I am asked-to instruct you, that, under the terms, oi the agreement, they had a right to remove the property in controversy, the point is refused. From my reading of the agreement, the property which these defendants had a right to remove was the property specified in the agreement, and that only, and with, a limitation, possibly, because, “ also the New St. Clair Railroad” was conveyed to them, and so on, and subsequently they were limited to the removal of the iron from the said St. Clair Railroad; and then, as to the siding, etc., they had a right to remove it. But I understand the expression that has been read to you, “ on the removal of said parties of the second part from said premises, they shall have the right to remove the iron from said St. Clair Railroad, cars, tools,” etc., to apply, and I so instruct you, to the articles specifically mentioned in this agreement. But I do not find in the article any conveyance to these defendants of this tipple, incline or siding, or whatever it may be called, at the foot of it, and as to those, under this agreement they had no right to remove them. I so instruct you.4 The jury returned a verdict for the plaintiff for $1,998.75. A rule for a new trial having been discharged, the defendants took this writ, assigning as error, inter alia: 2-6. The answers to defendants’ points.8 to 6 • It was not pretended on the trial that anything was omitted from the agreement, either through fraud or mistake, and the action was in affirmance of the contract as set out in the narr. The. case is therefore ruled by Merriman v. Bush, 116 Pa. 287, and the court should have affirmed the defendants’ first point. But the court ruled, in effect, that the agreement was a lease, and not a sale, and, having so decided that question, submitted to the jury to find whether the alleged lease contained a covenant to re-deliver the property or not. There is no covenant of that kind in the agreement. The action was upon a written and sealed instrument and according to the law of Merriman v. Bush, supra, the plaintiff could only recover upon “ a covenant contained in the agreement.” Instead of so instructing, the court said, in the answer to the defendants’ sixth point, “ If there be no covenant expressed in words, there is an implied covenant in every lease of property (as this would practically be), to re-deliver the property, at the expiration of the lease, reasonable wear and tear and accidents excepted.” This instruction is clear error. Courts of law cannot incorporate into a sealed instrument what the parties left out of it, eyen though the omission was occasioned by the clearest mistake; nor can they reject what the parties inserted, unless it be repugnant to some other part of the instrument: Hudson Canal Co. v. Penn. Coal Co., 8 Wal. 276. 1. It is evident that apt technical words have not been used in the contract to express either a conveyance or a lease of the coal works. But an exclusive possession is granted; the term thereof is fixed, and a right of reversion is declared to be in the grantor. “ No form of words is required to constitute a lease. It is not necessary that the term, lease, should be used. Whatever is equivalent will be equally available. If the words assume the form of a license, covenant or agreement, and the other requisites of a lease are present, they will be sufficient. These requisites are, a term of years, with a certain beginning and ending, granted by the lessor to the lessee: ” Sharswood, J., in Bussman v. Ganster, 72 Pa. 285; Taylor on Landlord & Ten., § 159; Wood on Land. & Ten., §210; Mitchell v. Commonwealth, 37 Pa. 187. 2. If then, the instrument, so far as relates to the coal works, is a lease, the defendants were in possession as tenants. The premises described include the structures. The lessees took possession of them during the term under the lease and used them as a necessary part of the plant during the whole term. The defendants agreed to remove only the iron from the St. Clair railroad, yet they tore up and took away the iron from the pits, incline and railroad sidings two miles away. They expressly agreed not to take down or remove any of the houses, shops or other buildings, yet they tore down and removed the blacksmith shop and the entire building inclosing the drums, incline, screens, etc., which constituted the tipple. They therefore violated their express covenant, in not returning the coal pit at the end of the term as they received it.
123 Pa. 250Appeal of Pittsb. & A. Drove Yard Co. (1889)
FROM THE DECREE OF THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 155 October Term 1888, Sup. Ct.; court below, No. 607 March Term 1888, C. P. No. 1. On February 25, 1888, the Pittsburgh & Allegheny Drove Yard Co. filed a bill in equity against Robert Woodside, and Daniel Taylor, and others, executors of‘William Woodside, deceased. The bill averred that the plaintiff was a corporation, etc.; that on April 1,1882, Robert Woodside and William Woodside, being the owners of certain real estate, leased the same for five years from said date, “ with leave of renewal for five years,” to Omslaer & Walker, who entered and continued in possession, and on October 6,1884, assigned the lease to the plaintiff, “with all the rights and privileges therein granted;” that plaintiff, as assignee of said lease, had at all times faithfully performed the covenants therein, and, intending a renewal of said lease for another term of five years from and after April 1,1887, had continued thereafter to occupy the premises; that not until on or about July 1, 1887, when plaintiff tendered the quarterly rent then payable, did the plaintiff receive any notice that the lessors desired to repossess themselves of the demised premises, and plaintiff then formally notified the defendants in writing of its intention to renew said lease for a further term of five years ; that the defendants threatened to eject the plaintiff, and refused to renew said lease. The prayers of the bill were, (1) that the defendants be enjoined from' ejecting the plaintiffs, and, (2) that they be ordered and decreed to renew the lease for another term of five years. The answer of defendants, filed on May 11, 1888, in so far as the averments of the bill were not denied, set forth that no notice was given by the plaintiff until July 11, 1887, that it intended to avail itself of the leave of renewal; that the defendants, previously, on June 30, 1887, had given notice to the lessees to quit possession of the premises within three months. The cause was set down for hearing on bill answer, on June 27, 1888, the court, Stowe, P. J., without opinion filed, signed a decree dismissing the bill at the costs of the plaintiff. Thereupon the plaintiff took this appeal cree as error. [Upon the question whether the law devolved upon the tenant the duty of making his election to renew within the first five years, or whether his continuance in possession was a sufficient notice of his choice to take the additional term, the counsel cited: Commonwealth v. McNeile, 8 Phila. 439 ; Clark v. Merrill, 51 N. H. 415; Kelso v. Kelly, 1 Daly 424; Delasham v. Berry, 20 Mich. 292 ; Kramer v. Cook, 7 Gray 550 ; Holley v. Young', 68 Me. 215 (28 Amer. 11. 40); Creighton v. McKee, 7 Phila. 324 ; s. c. 2 Brewst. 383 ; Lang v. Stafford, 103 N. Y. 274 ,• Yettor’s App., 99 Pa. 52 ; Terstegge v. German Soc., 92 Ind. 82 (47 Amer. R. 135) ; Montgomery v. Board of Com., 76 Ind. 362 (40 Amer. R. 250); Banks v. Tlaskie, 45 Md. 207; Goodright v. Richardson, 3 Term R. 462 ; Ferguson v. Cornish, 2 Burr. 1032. The question of jurisdiction was not noticed.] [Counsel cited, in his reply to the questions raised: Laguerenne v. Dougherty, 35 Pa. 45; 2 Lead. Cas. Amer. Law of R. P., Sharswood & Budd, 194.]
123 Pa. 253McFall v. McK. & Y. Ice Co. (1889)
ERROR TO THE COURT OK COMMON PLEAS NO. 2 OP ALLEGHENY county. No. 157 October Term 1888, Sup. Ct.; court below, No. 315 April Term 1887, C. P. No. 2. To the first Monday of April, 1887, a scire facias issued upon a mechanics’ lien, No. 17 April Term 1887, filed by J. N. McFall, et al., partners as McFall, Hetzell & Co., against the Keesport & Youghiogheny Ice Co., B. B. Coursin, A. Inskeep, E. C. Converse, R. G. Wood and J. F. Davitt, owners and reputed owners, and W. J. McMasters, contractor. Issue. At the trial on January 11, 1888, evidence was introduced of the facts following: On March 31, 1886, A. M. Powers et al. conveyed the parcel of land in McKeesport claimed to be bound by the mechanics’ lien, to B. B. Coursin, E. C. Converse, A. Inskeep and It. G. Wood, the consideration being $3,300. On May 20, 1886, Coursin, Converse, Inskeep and Wood, with J. F. Davitt, entered into articles of incorporation under the title of the McKeesport & Youghiogheny Ice Co., the capital stock being $15,000, divided into 300 shares of $50 each. The corporators each subscribed for 75 shares, except Wood, who took 38, and Davitt, who took the other 37. $1,500 of the capital was certified to have been paid in in cash.. Upon the said articles, letters patent were issued on June 9, 1886, which were placed on record in Allegheny county on August 21, 1886. On August 17, 1886, as appeared from the corporation minutes, Inskeep reported plans and specifications made by W. J. McMasters for a building 130 by 120 feet; and at the same meeting Inskeep’s own bid to erect the ice-house, according to said plans and specifications for $10,000, payable in stock of the company, was accepted. The next day, Inskeep sub-let the contract to W. J. McMasters for $6,700, payable as the work progressed. On August 19, 1886, the first order for material was given by McMasters. Ground was broken for the erection of the building a few days thereafter. The first delivery of material by the plaintiffs was on August 25th, and the last on October 2, 1886. The title to the land was conveyed to the corporation on October 23, 1886, for the consideration of $5,000. Inskeep testified that he had 119 shares, amounting to $5,950 stock, and he got something like $3,000 in money ; the most of it he paid in money and the money came back to him in order to have the books straight. .Davitt testified that the difference between $6,700 and $10,000 was divided between tbe five original subscribers including himself, and that it was understood all along that that division was to be made. It was thus shown, as claimed by the plaintiffs from the evidence, that no stock was ever issued to Inskeep under bis bid to the company, although the stock was increased to $20,000; that the difference between $6,700, the contract price with McMasters for the erection of the building, and $10,000, the contract price with Inskeep, was divided between the five stockholders; that the stockholders in this way raised and paid, through Inskeep, the contract price with McMasters, and credited themselves on the books of the company as having paid thereby $10,000 of the stock subscribed by them. The court, Magee, J., after explaining generally, the provisions of the mechanics’ lien law, act of June 16, 1836, P. L. 696, and its supplements, charged the jury: Prom this statement of the provisions of the law it will be observed that the lien filed must set forth the names of the owners or reputed owners and the name of the contractor when the contracts are made with him; that is to say, a lien may be filed when the contract is made with the owner or reputed owner, or a contractor who has his contract with the owner or reputed owner. The law does not authorize a lien where the contract is made with a sub-contractor and a sub-contractor is any one who deals with the contractor; so that if you find as a fact that the contract in this case was not made by the plaintiffs with the owners or reputed owners, or with the contractor, then there can be no recovery here, for if the contract was not made by the plaintiffs with the owner or reputed owner or the contractor, then the contract must of necessity, if made at all, have been made with a sub-contractor, and I have said to you that the law gives no right to a lien for contracts made with sub-contractors. The law requires that the material be fornished upon the credit of the building and its kind and time of delivery given. I have mentioned these requirements of the law because, as I understand the defence, it relates to these two subject matters. The plaintiffs have furnished no direct and positive evidence that W. J. McMasters, whom they have named as the contractor, bad his contract immediately with the corporation. They have offered evidence, however, to show that Mr. McMasters erected the building and furnished all materials and did all the work, and had such connection, as they contend, with the erection, as to justify the jury in drawing the conclusion that he was the contractor for the building and not a sub-contractor. In answer to the plaintiffs’ claim the defendants show that A. Inskeep made a bid for the erection and construction of the building for the price or sum of ten thousand dollars payable in stock of the ice company, and that by resolution of the board the contract was awarded to said Inskeep; that said Inskeep made and entered into a contract with W. J. McMasters to erect and construct the building contracted for by Mm with the company, for the sum of sixty-seven hundred dollars. The contract between Inskeep and the company was made on one day and that made between Inskeep and McMasters on the following day. In answer to tMs defence the plaintiffs say that the contract made between Inskeep and the company was not a bona fide contract, but that it was merely a measure adopted and a concerted plan of the stockholders, five in number, and of whom Inskeep was one of the principals, to secure a nominal contractor without responsibility in the matter, with no interests or rights in the contract price, and with the understanding of stockholders by pre-arrangement that the contract thus made was by Inskeep to be immediately made with McMasters for the sum pf sixty-seven hundred dollars, and that the difference in the contract price was to be distributed among the stockholders according to their respective amounts of stock held in the corporation. I do not hold it to be the law that an owner cannot make a contract for the very purpose of avoiding liability to mechanics’ liens in the erection of a building, but in my judgment it must be, to operate as such, a bona fide contract and not a mere sham or pretence. For in that case the contract, where it is done in tMs way that I have indicated, may be regarded, on proof that such was its character, as a contract made with an agent whose principal at the time was unknown, but whose contract it in fact was. I therefore say to you as matter of law that if you find from all the evidence in the case that the contract of Mr. Inskeep with the company was a valid and operative contract and that it was not done so that he might, as the agent and instrument of the company, make the contract with McMasters, and that he did so make it then, in the interest and for the benefit of the company, then your verdict ought to be for the defendant. But upon the contrary, if you find as a matter1 of fact that the contract of Inskeep with McMasters was in fact and in truth the contract of the company, and that it was so understood by the corporation and Inskeep, and you further find that the material claimed was furnished on the credit of the building, then your verdict ought to be for the value of the materials furnished, with interest. % % % % The plaintiffs request the court to charge the jury [inter alia] : 2. That if they find that Inskeep, Coursin, Converse, Wood and Davitt were the subscribers to the capital of a proposed corporation, which intended to cany on the ice business on land, the title to which was in the first named four of them; that their articles of association, though dated May 20, 188G, and approved by the governor June 9, 1886, were not recorded in Allegheny county, where they intended to carry on business, until August 21, 1886; that on August 17, 1886, said five named persons met and agreed that they would accept a proposition from Inskeep for the erection of their ice house for the sum of 810,000, payable in stock of the intended corporation, and that said Inskeep should then make a contract with some outside person to build said ice house for a less sum, and that the difference between the price at which Inskeep contracted and the 810,000 stock should be divided pro rata between said five persons, and that they among them should pay, pro rata, his actual outlay as a payment on their stock subscriptions; then the contract of said Inskeep with W. J. McMasters is the contract of said Inskeep, Coursin, Converse, Wood and Davitt, and bound the property for all materials delivered to said McMasters for and on account of the building described therein. Answer: Refused. I cannot say to you that the allegations of this point of necessity bind the company property, but I leave to you to say, under the point if found to be true, whether it satisfies you that tbe contract of Inskeep with McMasters was tbe contract of tbe company.8 Defendants’ counsel ask tbe court to charge [inter alia] : 1. Under tbe evidence in this case tbe verdict should be for the defendants. Answer: Refused. 2. There is no evidence that McMasters, with whom plaintiffs’ contract was made, was anything- but a sub-contractor. As sub-contractor be bad no power to bind the building, and therefore the verdict should be for the defendants. Answer: Refused. 3. The evidence as to the consideration under the contract between the ice company and Mr. Inskeep does not show any fraud of which the plaintiffs can complain, and should be disregarded by the jury. Answer: Refused; but I say to you, as the law, that fraud cannot be presumed, but must be proven. 4. If the jury should think that under the evidence the whole 110,000 was not to be paid to Mr. Inskeep, but that a portion thereof was divided in stock between the stockholders, this would not make the defendants liable in tins case or make Mr. McMasters a contractor having power to bind the building. Answer: Refused; because I am of the opinion that the suggestions of the point are to enter into your consideration in ascertaining the status of McMasters to the company, and his power to bind the building. 6. It was the plain and obvious duty of the plaintiffs to know the relation which McMasters bore to the owners of the building ; failing this, they furnished materials to him at their peril. Answer: Affirmed. The jury returned a verdict in favor of the defendants. A rule for a new trial having been discharged, the plaintiffs took this writ, assigning as error, inter alia: 2. The answer to the plaintiffs’ point.8 1. Section 3, act of April 20, 1874, P. L. 75, provides that the certificate of organization, after approval by the governor, shall be recorded in the office for tbe recording of deeds in and for the county where the chief operations are carried on, and “from thenceforth” the subscribers thereto and their associates and successors shall be a corporation, etc. Until Arrgust 21, 1886, then, Inskeep, Coursin, Converse, Wood and Davittwere in the position of individuals proposing to form a corporation, as to which purpose there was no notice to any one. In making the contract of August 18th, therefore, under the arrangement disclosed in the evidence, Inskeep acted for himself and as agent for his associates, and Me Masters was substantially a direct contractor with tbe owners of tbe property and as such having authority to bind the building. 2. There was no doubt about the facts suggested in outpoint. The court was asked to instruct the jury, that if they found the facts referred to in the point to be true, the conclusion of the law was in onr favor. There was a refusal, and the jury were practically instructed, that even though they found 'the facts to he as stated, they might return a verdict for or against us as they might see fit. Herein lies the error of the case. 1. When the projectors of a company enter into contracts in behalf of a body, not existing at tbe time but to be called into existence afterwards, then, if the body for whom the projectors assumed to act does come into existence, it cannot take tbe benefit of the contract without performing that part of it which the projectors undertook that it should perform: "Bell’s Gap It. Co. v. Christy, 79 Pa. 59; Whitney v. Wyman, 101 U. S. 892. Moreover, the rights of mechanics’ lien creditors begin when the building is begun: Henning v. Pry, 23 P. L. J. 125; and here the first delivery of tbe material was after the recording of the certificate of organization. 2. The question whether the contract with Inskeep was a sham and pretence, was left to the jury in plain terms and they were told that if the contract was not a bona fide contract they should find for the plaintiff. And there was no testimony supporting the theory of the plaintiffs’ point that at tbe time of making the Inskeep contract the parties agreed that tbe difference-between Inskeep’s bid and that of McMasters should be divided among them. Nor is there evidence that there was an agreement that the parties should pay Inskeep their pro rata of his outlay. Even if there were, its effect would only be to. make them partners with Inskeep as a contractor under the ■corporation. It is immaterial what Inskeep did, or agreed to do with his money, or what arrangements he made with others, so long as no rights of the plaintiffs are affected.
123 Pa. 262Robb v. Bigham (1889)
FROM THE DECREE OE THE DISTRICT COURT OF ALLEGHENY COUNTY. No. 25 October Term 1888, Sup. Ct.; court below, No. 663 April Term 1849, Dist. Ct. On April 28,1849, .Robert Robb presented bis petition, entitled a bill in olían eery, which was as follows : Your petitioner respectfully represents that in contemplation of a marriage about to be solemnized by and between Maria L. Lewis and T. J. Bigliam, Esq., all the estate, real, personal and mixed, then belonging to tlie said Maria, were conveyed to your petitioner, Ms heirs and assigns, by deed bearing date the 20th day of December, A. v. 1846, and duly entered of record in the recorder’s office of Allegheny county, in Deed Book, 4th B, vol. 75, page 436, executed by said Maria L. Lewis, now Maria L. Bigliam, and wife of Thomas J. Bigham, Esq., by Thomas J. Bigham and by your petitioner, which said deed of conveyance vras made in trust, as follows, viz.: [Tlie trusts here set out in tlie petition were in effect: To invest the personal property in such way as to the trustee might seem best, to change the investment from time to time, to receive tlie interest and income, and to pay the same to the said Alaria, from time to time, for her sole and separate use, free from any control of lior said intended husband; and, in case said Maria should die in tlie lifetime of her intended husband, to assign and transfer the property to such person or persons and in such manner as she, the said Maria, notwithstanding her coverture, by any instrument in writing in the nature of a last will should limit and appoint, and in default thereof, to such person or persons as might be entitled to the same under the then existing intestate laws. Further; to sell and convey the coal under said real estate when and on such terms as the trustee should think proper, and to hold the proceeds on the same trusts as set forth as to the personal estate. Further; to sell the real estate surface or any part or parts thereof whenever the trustee should think proper, and to hold the proceeds on the trusts referred to, provided that no real estate surface should be sold without the consent of said Maria first had in writing; and, until such sale was made, to make such improvements thereon in the erection of buildings, fences etc., as the trustee should deem suitable and necessary; and to receive the rents, issues, and profits of said real estate, or such parts thereof as were unsold, and to pay the same to her, the said Maria, during her life, to and for her sole and separate use, free from any control of her said intended husband; and, in case the said Maria should die in the lifetime of her said intended husband, to convey such parts of the real estate as then remained unsold, to such persons and for such estate or estates, and subject to such charges, as the said Maria, notwithstanding her • coverture, by any instrument of writing in the nature of a last will might direct, limit and appoint: and it was provided that the separate receipt of the said Maria, notwithstanding her coverture, should be an effectual discharge to the trustee for all moneys paid her, or paid, laid out and expended or invested in any manner under the several provisions of the trusts stated.] Your petitioner further represents, that by virtue and in pursuance of said deed of trust your petitioner received the rents, issues and profits of the estate of the said Maria, with the exception of such portions of it as were received by her directly, from the date of said deed of trust to the 12th day of January, 1849, at which time all accounts arising out of such fiduciary relations were amicably and satisfactorily adjusted by and between your petitioner and the said Maria, and the amount then due her on such accounting was paid over to her; since which time your petitioner has not received any moneys out of the estate of said Maria, she herself having received all the rents, issues and profits of her estate since that date. Tour petitioner, believing that all the benefits intended to be secured to the said Maria by the deed of trust aforesaid, are fully secured to her by the act of assembly, passed April 11, A. D. 1848, providing among other things to secure the rights of married women, and that there is no need of the intervention of a trustee for that purpose, and being also desirous of being discharged from his said trust, he prays your honors to make an order directing him to reconvey all the property and estate, vested in him by the said deed of trust, to the said Maria L. Bigham, her heirs and assigns, and also discharging him from his said trust, and make such further order and decree in the premises as the case may require, and to your honors shall seem meet, and your petitioner will ever pray.— The foregoing petition was accompanied by the following answer signed by T. J. Bigham and M. L. Bigham : The said T. J. Bigham and Maria L., his wife, formerly Maria L. Lewis, defendants in this bill, severally waive the issuing and service of a subpoena in this case, and severally and respectively these defendants, each answering for himself and herself, and not one for the other, say: That it is true that such a deed as in the said bill is stated to bear date the 26th day of December, A. J). 1846, was duly made and executed by and between such parties, and to such purport or effect as is therein set forth; and the said defendants further answering say, they admit it to be true, that the said intended marriage between them, the said defendants, was soon after the execution of the said deed had and solemnized, and that the said plaintiff did act as trustee as set forth in his said bill during the period therein specified, and that he has fully and satisfactorily accounted to the said Maria for all moneys received by virtue of or arising out of said trust, and paid over to the said Maria the balance due upon such accounting. And further answering they say: That all and singular the statements as set forth in the said petitioners bill are true, and that they do hereby consent that the court may grant the prayer of said petitioner, and discharge him from his said trust, and make such other order and decree in the premises as to your honors shall seem meet. Thereupon the court, Lowuie, J., made this decree: “ And now, to wit: April 28, 1849, the court having read the foregoing bill and answer, and having duly considered the same, they do hereby order and decree that the said Robert Robb, petitioner in said bill, do make and deliver to the said Maria L. Bigham a deed reconveying to her, her heirs and assigns, all the property and estate which became vested in him by virtue of the deed of trust referred to and in part recited in his said bill, and that thereupon he shall be and is hereby without any further order discharged from his said trust, as prayed for in his said bill.” On November 17, 1887, the death of T. J. Bigham was suggested upon the record, and James M. Christy, his administrator, substituted. Eo die, the death of Robert Robb, the petitioner, was suggested and rule on John Robb, his administrator, to show cause why he should not be substituted on the record; eo die, Maria L. Bigham appealed to the Supreme Court. The rule referred to was made absolute on December 21, 1887, and subsequently the appellant purchased a writ of certiorari, and in this court the following errors were assigned, in substance: 1. The court erred in directing the trustee to reconvey the trust estate and property. 2. The estate limited by the trust deed was an equitable estate in fee for the sole and separate use of the cestui que trust, and there was no power to her to waive the issuing of a subpoena and to consent to the destruction of the trust. 8. The proceeding, being by petition and not by bill in chancery, according to the practice and proceedings in courts of chancery, was unauthorized by law. No question can be made in this case that the settlement effected by the deed of trust was perfectly created, both as respects the execution of the instrument by the several parties, and the language and terms of the instrument itself: the irrevocability of such an instrument is too well settled to be now called in question : Withington’s App., 32 Pa. 419 ; Talhot y. Calvert, *24 Pa. 327; Whichcote v. Lyle, 28 Pa. 73; Barnett’s App., 46 Pa. 392; Caldwell’s App., 5 Cent. It. 859. The deed created an express trust, and vested in Maria L. Lewis, in immediate prospect of her marriage with T. L. Big-ham, an equitable fee simple in the lands, limited to her sole and separate use. • 1. A married woman, with a limitation to her separate use, has only the powers which are expressly given to her by the instrument under which she holds : Lancaster v. Dolan, 1 It. 231; Pullen v. Itianhard, 1 Wh. 514; Wallace v. Coston, 9 W. 137 ; Thomas v. Folwell, 2 Wh. 11; Dorrance v. Scott, 8 Wh. 309 ; Rogers v. Smith, 4 Pa. 93. Such was the state of the law when the married woman’s act of 1848 was passed, and the question soon arose whether the principle so decided was affected by that act. At length, in Wright v. Brown, 44 Pa. 224, affirming Penn. Co. v. Foster, 35 Pa. 134, and overruling Haines v. Ellis, 24 Pa. 253, it was held: “ The rule in Pennsylvania, before and since the act of 1848, in reference to real estate held by a married woman to her sole and separate use, with or without a trustee, is that she cannot convey or mortgage it during the lifetime of her husband, unless that power was expressly given by the instrument under which she acquired title.” Such is the law at this time, without exception or qualification : Maurer’s App., 86 Pa. 880; Twiuing’s App., 97 Pa. 36. 2. As Mrs. Bigham, under the marriage settlement, could not alien or mortgage her separate estate during her coverture, how could she lawfully consent to a decree in equity, sought and obtained by all the parties to the trust for the express purpose of terminating the trust of the marriage settlement? Of course, she could not, for her disability extended equally to such an act. Repeated adjudications have settled that a judgment cannot be recovered against a married woman under the act of 1848, unless the pleadings make a case within its provisions : Decker v. Haak, 88 Pa. 242 ; Swayne v. Lyon, 67 Pa. 436; Caldwell v. Walters, 18 Pa. 79; Quinn’s App., 86 Pa. 447; Dorrance v. Scott, 3 Wh. 309. In Gliddeu v. Struplor, 52 Pa. 400, where a marriedi woman declared she had no defence to a judgment, it wras held she was not thereby estopped from asserting its invalidity on the ground o£ her coverture. 8. A proceeding for such a purpose as that for which this petition was filed, must be instituted by bill, not by petition: Ex parte Hussey, 2 Wh. 330 ; § 13, act of June 16,1836, P. L. 789. The equity rules adopted by this court in 1844, were in force when this petition was filed, and were substantially the same in their requirements as those of the Supreme Court of the United States. Even the amended rules of 1865 retain the essentials of bills and answers, respecting parties and the issuing of subpoenas. It cannot be pretended that this petition, so called by the petitioner himself both in the introduction and in the prayer, is in accordance with the equity rules then in force. The controversy in the cases cited by the appellant generally arose between the "husband or heirs of the cestui qui trust, and the trustee, to compel him to do something with the trust estate for their advantage or interest, which was beyond his authority and power. . In the present ease there has not been a trustee for more than thirty-eight years; the estate has been as much under the exclusive and absolute control of the appellant as if no trust had ever been created, and without objection or dissent from any one in all that time. 1. There can be no question of the chancery powers of the court when these proceedings were instituted: act of June 12, 1839, P. L. 261; act of April. 29, 1844, P. L. 526. Equity jurisdiction is used in contradistinction to jurisdiction in general. Jurisdiction of the subject matter is power to adjudge concerning the general questions involved, and is not dependent upon the state of facts which may appear in a particular case: Hunt v. Hunt, 72 N. Y. 217 (28 Amer. R. 129); Pomeroy Eq. J. § 129. The bill filed, though not in strict conformity with the practice at the time, contains all the essentials of a bill in equity, with the names of the parties plaintiff and defendant. The answer of the defendants treated it as a proper bill, and so also does the decree made, and now complained of, but which for thirty-eight years stood without exception or objection. 2. As a question of practice, we submit that a married woman may waive the service of process in legal proceedings ■upon her, to save delay and expense ; and, by voluntarily appearing and taking part in the proceedings, she becomes subject to the jurisdiction of the court and cannot afterwards dispute it. The cases cited by the counsel all arose on contracts, which at common law a married woman was unable to make and which she could not make under the enlarged powers conferred by the act of 1848. Being absolutely void at their execution, they could not be validated by any subsequent act or process.
123 Pa. 275Crawley v. Commonwealth (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 161 October Term 1888, Sup. Ct.; court below, No. 106 •July Term 1888, C. P. No. 2. On April 21, 1888, an action of assumpsit was brought in the name of the commonwealth, as well for the use of the Guardians for the Relief and Employment of the Poor of the city of Pittsburgh, now for the use of the city of Pittsburgh, as for the 'use of A. Wishart, against James Crawley, J. C. Buffum and M. Klein. The statement filed with the praecipe set forth in substance that on January 31,1887, a license was lawfully issued to James Crawley to keep a tavern for one year from February 1, 1887, after he had given a bond to the commonwealth, with J. C. Buffum and M. Klein as sureties, in the sum of $2,000 conditioned as follows: “ That if the above named James Crawley, this day licensed, shall well and faithfully observe and fulfil all the duties relating to the business of tavern [sic], and shall pay all damages, fines, costs and penalties that may be recovered against him, without any fraud or evasion, then this obligation to be void, otherwise,” etc. There was then averred the recovery of judgments for penalties and costs, in seven several actions before aldermen in the city of Pittsburgh, for selling liquor on Sunday, in violation of the provisions of § 1, act of February 26, 1855, P. L. 53, and its supplement, act of April 29, 1867, P. L. 95; that all of said judgments, with the costs thereon, remained unpaid and unsatisfied, and that A. Wishart, one of the use plaintiffs, was not a witness in*any one of said cases. The averments of the affidavit of defence filed were in substance as follows: 1. That the said license was granted to James Crawley under the act of April 3,1872, P. L. 843, regulating the sale of liquors in Allegheny county, and the bond was given as provided for by the supplementary act of April 10, 187B, P. L. 601, and no judgment within the meaning of said acts of assembly had been recovered against said James Crawley. 2. That, as defendants were advised, the act of February 26, 1855, P. L. 53, and its supplementary act of April 29, 1867, P. L. 95, under which the suits referred to in the statement were instituted, were not in force in Allegheny county at the time of the approval and filing of said bond, to wit: January 31, 1887. 3. That the judgments recovered, as recited in said statement, were not recovered for any violation of, or by any action instituted under, said act of 1872, the act under which the license was issued, or the act of 1873, under which the bond was given and accepted; nor do they show any fines, costs or penalties imposed on the trial of any indictment for violation of said acts or any other act regulating the sale of intoxicating liquors. On June 30,1888, the court, Ewrae, P. J., without opinion filed, made absolute a rule for judgment for want of a sufficient affidavit of defence, and judgment was then entered for the plaintiffs, upon the prsecipe of counsel, for $829.89. Thereupon the defendants took this writ, assigning as error the order directing the entry of judgment. 1. The act of April 10, 1873, P. L. 601, requires the condition of the bond to be that the licensee “ shall pay all fines and forfeitures that may be recovered against him,” etc. The condition of the bond in suit is, that the licensee “ shall pay all damages, fines, costs, and penalties that may be recovered against him,” etc. A variance between a statutory bond and that required by the statute, is fatal to its validity: Commonwealth v. Laub, 1 W. & S. 263; Farmers Bank v. Boyer, 16 S„ & R. 49; Warner v. Racey, 20 Johns. 74; Sullivan v. Alexander, 19 Johns. 233; Beacom v. Holmes, 13 S. & R. 190; McClelland v. Smith, 12 Pa. 303; Hellings v. Poor Directors, 15 Pa. 413; McKee v. Stannard, 14 S. & R. 380. 2. But if the foregoing be not agreed to, we then submit that, the bonding having been given with reference to the statute, it must be construed by the statute, so that the unnecessarily comprehensive language of the bond will be restricted in its operation to what may be lawfully included therein : Bailies on Sureties and Guarantors, §§ 9,10 ; Pybus v. Gibb, 6 El. & B. 902 ; Miller v. Stewart, 9 Wheat. 702; United States v. Kirkpatrick, 9 Wheat. 732 ; Stockwell v. Kemp, 4 McLean 81; Wood v. Eisk, 63 N. Y. 246 ; Fielden v. Lahens, 6 B latch.'524; Crouse v. Commonwealth, 87 Pa. 168. 3. By § 31, act of 1872, any sale or giving away of liquors contrary to the provisions of the act is a misdemeanor, and a fine is imposed upon conviction of the offence upon an indictment in the Court of Quarter Sessions. By the act of 1873, the form of the condition of the bond required is provided. Before any cause of action upon the bond can arise, therefore, there must have been a conviction and judgment against the licensee, under and in the manner prescribed by the act. A judgment in a qui tarn action is not a conviction : Carlisle v. Baker, 1 Y. 471; Specht v. Commonwealth, 24 Pa. 105. 4. Moreover, the act of February 26, 1855, P. L. 53, prohibiting the sale of intoxicating liquors on Sunday, is repealed so far as Allegheny county is concerned by the act of April 3, 1872, P. L. 843: Commonwealth v. Gedikoh, 101 Pa. 355. And the act of April 3, 1872, is repealed by the act of May 13, 1887, P. L. 108 : Commonwealth v. McCandless, Treasurer, 34 P. L. J., O. S., 330; s. c. 10 Cent. R. 758; Sanders v. Commonwealth, 117 Pa. 293. 1. Though the bond sued on so far differed from the requirements of the statute as to be void as a statutory obligation, yet being voluntarily given to secure a valuable privilege, it would be good at common law: United States v. Hodson, 10 Wal. 409 ; Jessup v. United States, 16 Otto 152 ; Claasen v. Shaw, 5 W. 468 ; Wright v. Keyes, 103 Pa. 567. The bond in this case was in no sense compulsory, as were the bonds under the insolvent laws discussed in the cases cited by the defendants. 2. The act of May 13, 1887, contained a saving clause preserving all licenses granted prior to June 30,1887. It operated from its date botli upon existing licenses and unlicensed venders, and at once worked a repeal of the local act of 1872 (especially § 1, which expressly rejiealed or held in abeyance in Allegheny county all the general liquor laws of the state), and at once revived those general laws, so that one holding an unexpired license under the act of 1872, who sold on July 4, 1887, was held liable to prosecution under the revived general act of February 26, 1855: Durr v. Commonwealth, 8 Pa. C. C. R. 525, affirmed by the Supreme Court in Durr v. Commonwealth, 11 Cent. R. 181. Under these decisions it is plain that whether all the provisions of the local act of 1872 were at once canceled or not, the same reasoning which .shows that § 14, as to transfers of licenses, was at once repealed: Yan Buren’s License, 35 P. L. J., O. S., 415, also shows that the proceedings by scire facias on these bonds was at the same time repealed, and if so, a common law action in this ease was the only remedy remaining to the commonwealth. 3. Judgments for penalties sued for do constitute a conviction: Garman v. Gamble, 10 W. 382. In Crouse v. Commonwealth, 87 Pa. 168, the plain words of the bond precluded a recovery. In Lightner v. Commonwealth, 31 Pa. 341, the condition of the license bond was identical with that sued upon, as to the observance of the duties of the licensee, and the terms of the bond were rigidly enforced. So in Stehle v. Commonwealth, 34 P. L. J., O. S., 147; s. c., 5 Cent. R. 554. And in Sanders v. Commonwealth, 117 Pa. 293, the offence was committed by an unlicensed vender who was indicted before the passage of the act of 1887, and he sought but failed to escape on the specious plea that the only law in force when his offence was committed had been repealed.
123 Pa. 283Farmers Dep. N. Bank v. Penn Bank (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 169 October Term 1888, Sup. Ct.; court below, No. 302 September Term 1884, C. P. No. 1. On February 11, 1886, a declaration in tbe common counts in assumpsit was filed in an action brought on July 4,1884, by the Penn Bank, for use of Henry Warner, assignee, against tlie Farmers Deposit National Bank, to recover tbe sum of $23,218.59, with interest from May 28,1884. The defendant pleaded, non assumpsit, payment, set-off, and payment with leave. At tlie trial on April 18, 1888, the plaintiff put in evidence tbe account of the Penn Bank witb the Farmers D. N. Bank, as contained in a pass book issued by the latter bank, the account showing a balance due the Penn Bank, as of May 28, 1884, of $23,218.59} also deed of assignment for tbe benefit of creditors from tbe Penn Bank to Henry Warner, dated and recorded May 28, 1884. Tlie plaintiff then rested. Tbe defendant, under objection by the plaintiff and exception, then put in evidence as exhibit No. 2, a “ cashier’s clieck ” of tlie Penn Bank, dated May 17,1884, to tbe order of Charles Siebert, treasurer, for $88,000, and proved, also under objection and exception, that Charles Siebert was the treasurer of the Germania Savings Bank; that on May 24, 1884, the check? properly indorsed, had been deposited with the Farmers D. N. Bank by Charles Meyran, president of the Germania S. Bank, and credit entered for the amount thereof as cash upon a pass book then given to the depositing bank. In its rebuttal, the plaintiff called T. H. Given, cashier of the defendant bank, who testified that the check referred to was deposited about 11 A. m. on May 24, 1884, and at the time it had a certificate of protest attached to it; that Mr. Meyran was informed that the Penn Bank had gotten their checks for that day and that this one would not be presented till Monday ; that Mr. Meyran said, that was all right; that the defendant bank was then the clearing house agent of the Penn Bank, and the clearings for that day had gone through; that May 24th was Saturday and the defendant held the check till Monday the 26th, when the Penn Bank closed its doors finally and refused payment of the checks upon it; that on the afternoon of that day the Germania S. Bank was notified of the non-payment of the cashier’s check, and requested to take it up, which was refused, and the check was then duly protested for non-payment and charged back to the account of the depositing bank; that on the morning of May 26th, the Ger-mania S. Bank drew a check upon the defendant for $2,447.50 which was paid, and a deposit was afterward brought in which made it good. The witness testified also that the cashier’s check was taken “ as we would take any other deposit,” reserving the right, however, to charge it back if it was not paid; that when a check was deposited for collection merely, “it is entered in the back of the book, or entered short, to be carried out, extended, when it is paid.” The court, Stowe, P. J., charged the jury and answered the points presented as follows : [The evidence, as I understand it — of course, in saying that, I do not intend to take the testimony from you, because where a case is submitted to a jury at all, they have a right to pass upon the facts and the credibility of the witnesses — upon the part of the plaintiff, given by Mr. Given and contained in plaintiff’s second proposition, which I will read presently, would, if you find it to be true, preclude the defendant from setting up this amount that they seek to, by way of a set-off against the Penn Bank, and make it your duty to find a verdict for the amount that it is shown the Penn Bank has credit for on the books of the Farmers Deposit National Bank, with interest to the present time.] 1 The court is requested to charge the jury in behalf of the plaintiff: 1. That, under all the evidence in the case, the verdict of the jury should be for the plaintiff for the amount of the deposit in the hands of defendant, with interest. Answer: Refused. If the court should refuse to charge as above requested, then to charge the jury as follows: 2. If the jury believe that the check of $88,000, exhibit No. 2, in this case, was taken by the defendant from the Germania Savings Bank, and the amount thereof credited in the account of the latter bank, on condition that in case of non-payment it should be returned to the Germania Savings Bank and the credit canceled, and that said check was not paid, and the defendant notified the Germania Savings Bank of such non-payment, and tendered the check back to the latter bank, and charged back the amount of said check to said Germania Savings Bank’s account, as shown by the book of the defendant in evidence, then said check cannot be set off in this action, and the verdict should be for the plaintiff for the amount of his claim, with interest. Answer: Affirmed.15, Defendant’s counsel ask the court to charge the jury as follows: 1. That, under all the evidence in the case, the Farmers Deposit National Bank has the right to set off the check, exhibit No. 2, in this action. Answer: Refused.8 2. That, under all the evidence in the case, the Farmers Deposit National Bank, as the holder of the check, exhibit No. 2, has the right to set off the same in this action. Answer: Refused.® 8. That, if the jury find from the evidence in the case that the Farmers Deposit National Bank, on May 24,1884, received the check, exhibit No. 2, from the Germania Savings Bank, as cash, and credited the same to the said Germania Savings Bank on its books as cash, and delivered to the said Germania Savings Bank a pass book in which the same was credited as cash, and the said Germania Savings Bank accepted said pass book and checked against the said deposit as cash, the said Farmers Deposit National Bank has the right to set the same off in this action, even though it has a remedy over against the Germania Savings Bank in case the check is not paid by the said Penn Bank. Answer: Refused.10 4. That the fact that the said Farmers Deposit National Bank subsequently charged said check back to the account of the said Germania Savings Bank will not deprive it of the right to set it off in this case, if the jury find that the same was done without the consent of the Germania Savings Bank, and the said Germania Savings Bank refused to accept said check or to approve of the action of the Farmers Deposit National Bank in so doing. Answer: Refused.11 'The plaintiff’s second proposition comprehends all the questions of fact that seem to be involved in this case for you to determine. You will reqollect that the teller’s check was the property of the Germania Savings Bank; that it was taken to the Farmers Deposit Bank, and there received, and a cash credit for $88,000 given, just as if the Germania Savings Bank had deposited that amount of money. If it had deposited cash it would have had a right to call on the Farmers Deposit Bank to respond to that amount, and so with this check, apparently, until something else occurred, and, if there were nothing else in the case, the Farmers Deposit Bank would be responsible for that amount of money to the Germania Savings Bank. But the check was not to be presented until Monday morning. It was deposited with the Farmers Deposit Bank on Saturday, and on Monday morning the final crash of the Penn Bank came and the check was not paid. The Farmers Deposit Bank, then, not receiving the money as it ought to have received it from the Penn Bank, or would have received it if that bank had not failed, stood in this position: [It had given the Germania Savings Bank credit for this money; it had this worthless check in its hands, and it immediately, or shortly afterwards, notified the Germania Savings Bank that the check had not been paid, and charged back the amount that credit had been given for, notified the Germania Savings Bank of the fact, and then and there ceased, as T understand it, to have any further interest in the matter.] 3 [So far as the Farmers Deposit Bank was concerned, the money that it had given the Germania Savings Bank credit for had been recaptured, as it were, taken from the credit of the bank, and, of course, there could be no claim by the Germania Savings Bank for that, for they were the indorser, and they would have been liable, if there had been no indorsement, for any money paid for their use without sufficient consideration. That is not all, because it appears that the Germania Savings Bank had drawn a check for several thousand dollars. That was charged back, and to-day, so far as that evidence shows, if you believe it, and there is nothing to the contrary, the Farmers Deposit Bank has no interest or title to this check whatever.] 3 [It has by its own act paid everything it had as against the Germania Savings Bank in this transaction, and that being the case it would, in that point of view, have no title to the check, would have apparently, to my mind, no more right to set it up than i f: entire strangers, although it has possession of the check, and although it appears that the Germania Savings Bank refused to receive it back when tendered.] 4 [The Farmers Deposit Bank holds it in trust for the Germania Savings Bank, which is entitled to it, and if the latter should demand, and the Farmers Deposit Bank should refuse to deliver it, I apprehend it could be recovered, either its value or the check itself, by proper legal action.] s [If you find these facts as testified to, and as they are apparently established by the evidence, the defendant has no such interest in this check as would justify it in setting it up as a defence to this action, and nothing which would prevent the jury from giving a verdict for the plaintiff for the entire amount of the claim, with interest.] 6 The jury returned a verdict in favor of the plaintiff for $28,442.24. Judgment having been entered, the defendant took this writ assigning as error: 1-6. The parts of the chai'ge embraced in [ ] 110 6 7. The answer to the plaintiff’s point.7 8-11. The answers to the defendant’s points.8 *°11 1. The instrument which the defendant claimed the right to set off in this action, although in the form of a cheek, was in legal effect a note of the Penn Bank, payable on demand: Byles on Bills, 89*; Roach v. Ostler, 1 M & R. 120; Miller v. Thompson, 3 M. & G. 567. The effect of the deposit, receipt and credit of the check as cash, by the defendant, was to vest in it the absolute legal and equitable title to the check and make the defendant the debtor to the Germania S. Bank in the sum of $88,000. The relation thus created could not be changed by the act of one of the parties without the consent of the other; if the check was not paid, the remedy of the defendant against the Germania S. Bank was on its indorsement; and the debt could only be discharged by payment in current money, not by a tender of a check; it could only be used as a set-off: Bank v. Kuhns, 62 Pa. 88, 92; Met. N. Bank v. Loyd, 25 Hun 101; Hoffman v. Bank, 46 N. J. (L.) 604; Bolles on Banks and Depositors, §§ 16, 21, 25; Morse on Banks and Banking, 52; German N. Bank v. Farmers’ D. N. Bank, 118 Pa. 294. 2. The defendant bank was therefore the owner of the cashier’s check, and its title acquired on May 24th cannot be questioned. The Penn Bank was the maker of the check and primarily liable therefor. The defendant bank had not only the right to apply any money in its hands belonging to the Penn Bank to its payment, but it was its duty so to do: Commercial N. Bank v. Henninger, 105 Pa. 496; First N. Bank v. Shreiner, 110 Pa. 188; Morse on Banks and Banking, 47, et seq.; First N. Bank v. Fourth N. Bank, 77 N. Y. 320 (33 Amer. R. 618). But even though the defendant bank held the check in controversy simply for collection, it would have the right to set it off in this action. A bank holding paper for collection has a right to demand and receive payment from the maker, and if not paid, to maintain an action in its own name: Sterling v. Trading Co., 11 S. & R. 179; Ward v. Tyler, 52 Pa. 393; Brown v. Clark, 14 Pa. 479. The assignee, the use plaintiff, is not a purchaser; he is a mere volunteer: he represents only the assignor, and his rights are only such as the assignor himself had at the date of the assignment: Fulton’s Est., 51 Pa. 211; Jordan v. Sliarlock, 84 Pa. 368; and if defendant could claim this set-off, in an action by the Penn Bank alone, it could do so in this case: Bank v. Balliet, 8 W. & S. 311; Long v. Insurance Co., 6 Pa. 421; Selfridge v. Bank, 8 W. & S. 320; Wolf v. Beales, 6 S. & IL 244; Solliday v. Bissey, 12 Pa. 347; Irish v. Johnston, 11 Pa. 487; McGowan v. Budlong, 79 Pa. 470. 1. Was the defendant bank vested with the absolute legal and equitable right to this check under the circumstances of this case ? With the exception of Bank v. Kuhns, 62 Pa. 88, which was upon an entirely different question, it is to be observed that ail the cases cited were cases where the depositor attempted to recover the check, or the amount of it, on the ground that it had been deposited merely for collection, and it was decided simply that as to the depositor the transfer was absolute. On the other hand, the courts of England, Boyd v. Emmerson, 2 Ad. & El. 184; Kilsby v. Williams, 5 B. & Aid. 815; of Alabama, National Bank v. Miller, 77 Ala. 173; of Louisiana, Louisiana Ice Co. v. State N. Bank, 1 McGl. 185; of California, National Gold Bank v. McDonald, 51 Cal. 64, all hold that such a deposit and credit is merely for collection by the bank, as the agent of the depositor, and the bank does not own the amount until collection is accomplished, and this even as to the depositor. To the same effect is Balbach v. Frelinghuysen, 15 Fed. II. 675. Text writers also have adopted the theory that checks so deposited are deemed to be taken for collection, in the absence of any special agreement: Daniels Neg. Inst., §1623; Morse on Banks and Banking, 2d. ed., 320, 3d. ed., § 506; 2 Edwards on Bills and Notes, § 749 ; Randolph on Commercial Paper, § 1394. Wherefore, the deposit is taken and credit made, by the bank conditionally; upon condition that if the check is returned unpaid, the same shall be returned to the depositor and the credit canceled, and this is in accordance with the practice and usage of banks: Morse on Banks and Banking, 8d ed., § 586, and consistent with the cases of Dougherty v. Central N. Bank, 93 Pa. 227 ; Lancaster Co. N. Bank v. Huver, 114 Pa. 216. 2. Assuming, however, that the defendant bank was the absolute owner of the check, and that the Germania S. Bank was liable as an indorser; the amount of the check was 188,000, and the balance of the Penn Bank’s credit with the defendant was a little over $23,000. Moreover, the check was not payable at the defendant bank. Where, at the maturity of a note held by a bank, the maker’s balance on deposit is insufficient to pay the note, the bank is not bound to apply that balance to the payment of the note, for the protection of the indorser : Peoples’ Bank v. Legrand, 103 Pa. 309; First- N. Bank v. Shreiner, 110 Pa. 188; Martin v. Mechanics’ Bank, 6 Harr. & J. 235; Voss v. German Amer. Bank, 83 111. 599 (25 Amer. R. 415); National Bank v. Smith, 66 N. Y. 271 (28 Amer. R. 48); Morse on Banks and Banking, 3d ed., § 562 a. That the holder of commercial paper for collection may maintain an action in his own name, is far from saying that such a holder can use it as a set-off against his own debt, for that would be to permit an agent to pay off his own debts with his principal’s money. And it has been expressly held that when a note is held for collection, the holder cannot set it off against his own debt: Lewis v. Shearman, 28 Ind. 427; Central R. Co. v. First N. Bank, 73 Ga. 383; Cecil Bank v. Farmers’ Bank, 22 Md. 148; First N. Bank v. Gruber, 91 Pa. 384; Hackett v. Reynolds, 114 Pa. 328; Graybrooks v. Ragland, 8 Grat. 342. The defendant bank cannot be said to hold the paper as a trustee, for it held the paper as a mere depositary, and a mere depositary of commercial paper cannot maintain a suit upon it: Sherwood v- Roys, 14 Pick. 172. And it is certainly true that a trustee of a note, or check, or other commercial paper, or a party holding such paper as a trustee, cannot set it off against his individual debt: Randolph on Commercial Paper, § 1860; McDonald v. Harrison, 12 Mo. 447; Fair v. Mclven, 16 East 130; Babington on Set-off, 6 Law Lib. 28; Waterman on Set-off, § 60.
123 Pa. 292Miles v. Everson (1889)
ERROR TO THE COURT OR COMMON PLEAS NO. 1 OR ALLEGHENY COUNTY. No. 184 October Term 1888, Sup. Ct.; court below, No. 653 June Term 1887, C. P. No. 1. A summons in case to the first Monday of June, 1887, was duly served in an action by Wm. H. Everson, C. L. Graff, John Q. Everson and Walter T. Brown, against Edwin Miles, surviving D. S. Maecrum, deceased. At the trial on February 15, 1888, the plaintiffs showed that prior to August 1, 1883, W. H. Everson, C. L. Graff, John Q. Everson, Walter T. Brown, Edwin Miles and D. S. Maecrum were copartners carrying on two distinct enterprises with their common capital and, for convenience, keeping separate books for each business. One of these enterprises was the operation of two rolling mills, as Everson, Maccrum & Co., and the other, the operation of an iron furnace and coke works, at Seottdale, as the Charlotte Furnace Company; that in pursuance of an agreement dated September, 1883, exhibit 4, signed by all the partners, the partnership was dissolved as of August 1,1883, and W. S. Everson, C. L. Graff, John Q. Everson and Walter T. Brown, as parties of the first part, assigned, transferred and set over to D. S. Maccrum and Edwin Miles, as parties of the second part, all the property and effects, real and personal, connected with the business of the Charlotte Furnace Co., “ subject to the payment, by said parties of the second part, of the indebtedness of the Charlotte Furnace Co. amounting to the sum of $73,385.66, and to Nimick & Co., the sum of $65,253.48, on account of the indebtedness of the firm of Everson, Maccrum & Co.; the said transfer to be in settlement and satisfaction of the capital stock and all other interests in and claims and demands of said D. S. Maccrum and Edwin Miles against said copartnership or firms ; ” the parties of the second part by the same agreement assigning and transferring to the parties of the first part all the property and effects, real and personal, connected with the business of the rolling mills, and further agreeing as follows: “ And said parties of the second part have agreed and do hereby agree to pay, or otherwise satisfy, the indebtedness of said firm known as Charlotte Furnace Company, amounting to the sum of $73,385.66 and to pay, or otherwise satisfy, the sum of $65,253.48 on account of the indebtedness of the firm of Everson, Maccrum & Co. to said Nimick & Co. and to procure said Nimick & Co.’s receipt and release for that amount of said indebtedness and save, indemnify and keep harmless the said Wm. H. Everson, John Q. Everson, C. L. Graff, Walter T. Brown, from all claim and demand against them for or on account of tbe same.” It was then shown by the plaintiffs, who were the parties of the first part to the said agreement, that before the date of the dissolution of the copartnership, one Isaac Rawlinson, while employed at the Charlotte Furnace Company’s works, had received injuries which he charged to the alleged negligence of the company; that Rawlinson had brought suit in Fayette county against W. H. Everson, E. Miles and D. S. Maccrum, partners as the Charlotte Furnace Company, and on February 17, 1886, had recovered a verdict for $3,000, as damages for said injuries ; that subsequently, on April 29,1887, a testatum fieri facias having issued from Fayette county upon the judgment entered upon said verdict, W. H. Everson paid to the sheriff of Allegheny county, to whom said writ was directed, the debt, interest and costs thereon, to wit: $3,417.15, with money contributed by himself and his co-plaintiffs. It was also shown that the interests of Maccrum and Miles in the dissolved eopartzrership were two fourteenths and three fourteenths, respectively. The defendant put in evidezrce a prior and izrformal agreement between the copartziers, dated August 20,1883, exhibit 8, not as contradictozy of that marked exhibit 4, but “ simply as throwing light ozi it,” and izitroduced evidezice from which it was claimed that Maccrum and Miles had discharged all the obligations assumed by them in the agreement of September, 1883, exhibit 4. [As explanatory, perhaps, of the last sezitence of the opinion of this court, it may be stated that neither the declaratiozr nor pleas, the affidavit of claim, zior the affidavit of defence, appeared in the paper books presezited.] At the close of the case on the testiznoziy, the court, Collier, J., instructed the jury: The defendant requests the court to charge : 1. That the Rawlinson claim, under all the evidence in this case, is not within the covenants of Miles and Maccrum, as set forth in theagreemezrts, exhibits Nos. 4 and 8, and the plaizitiffs therefore cazmot recover. Answer: Refused.1 [This case turns mainly on a question of law, and, as you have heard the court say, it is not very clear and probably will have to be finally decided, the agreement construed, by our Supreme Court. I have arrived at an interpretation that I think is correct; at any rate, it satisfies me, and it is my duty to say so to you, that under the agreeznezit made by these people on the dissolutiozi, which is izi these words: “ And the said parties of the second part have agreed, azxd do hereby agree, to pay or otherwise satisfy the ixidebtedness of the said firm known as the Charlotte Furnace Company, amounting to the sum of $78,000,” you are in duty bound to find for the plaintiffs, unless the defendant has satisfied you that this claim for damages which existed at the time — I believe suit had already been brought — was not considered by the parties at all, was left out, was not taken into account at all. Unless that is affirmatively shown to you, which would be equivalent to leaving it out intentionally, not including it, your duty would be to find for the plaintiffs ; for, the agreement is, the defendants are to pay or satisfy all indebtedness of the Charlotte Furnace Company, whatsoever that was, all liabilities, and this was a liability, this was an indebtedness under that. Unless, as I say, the defendant has satisfied you this claim was not considered — the suit, not having been brought, was not considered by them — was not to go in at all into this statement of the debts, indebtedness, your verdict must be for the plaintiffs. Upon that you have testimony on both sides, and you will say liow it is, but unless you find that fact, and the burden is on the defendant, your verdict should be for the plaintiff's for the amount claimed. If you find it was not considered by either of the parties, was not pretended to be taken in, was not thought of, was not intended to be, you would find for the defendant.] 8 The jury returned a verdict in favor of the plaintiffs for $8,590.34. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this writ, assigning as error: 1. The answer to defendant’s points,1 2. The charge of the court embraced in [ ] 3 The liability to Rawlinson in damages for the injuries he received, his suit still pending when the agreement was signed, does not come within the'’ meaning of the term, indebtedness, either in its legal or popular signification. A debt means a fixed and certain obligation to pay money or some valuable thing, either in the present or in the future: Erie City’s App; 91 Pa. 402; Rap. & L., L. D., 351; Zinn v. Ritterman, 2 Abb. Pr., N. S., 262; Parker v. Savage, 6 Lea 406. A disputed claim for damages sounding in tort, is not a debt before it is prosecuted to judgment: Hill v. Bowman, 3 Mich. 191; Detroit etc. Co. v. Reilly, 46 Mich. 459; Warner v. Cammack, 37 Iowa 642; Cable v. McCune, 26 Mo. 371 (72 Amer. D. 214) ; Cable v. Gary, 34 Mo. 573; Crouch v. Gridley, 6 Hill 250; Kellog v. Schuyler, 2 Den. 74; Rugan v. West, 1 Binn. 263; Fisher v. Consequa, 2 Wash. C. C. 385. The word, debt, even when used in statutes, has been expressly held to include claims for damages sounding exclusively in tort. In Carver v. Braintree Mfg. Co., 2 Story 432, where the charter of a company provided that the stockholders should be liable for all “debts contracted” while they were members, it was held that the words would include a claim for damages for a tort committed. The same rule was applied in Mill Dam v. Hovey, 21 Pick. 417; Gray v.-Bennett, 3 Mete. 522 ; Bispham v. Price, 15 How. 162. Moreover, the jury were instructed that if they should find that the Rawlinson claim “was not considered by either of the parties, was not pretended to be taken in, was not thought of, was not intended to be,” then the verdict should be for the defendant. We submit that in this there is nothing of which the defendant can complain.
123 Pa. 298Mellon v. Davison (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 185 October Term 1888, Sup. Ct.; court below, No. 561 March Term 1887, C. P. No. 1. On February 28, 1887, a summons in ejectment was served in an action brought by James R. Mellon against Thomas K. Davison, to recover a lot of ground in the Twenty-first ward, Pittsburgh. Issue. At the trial on February 8, 1889, before Slagle, J., the plaintiff by his abstract filed claimed title as follows: On February 12, 1887, Thomas K. Davison, the defendant, owning the property in dispute in fee, entered into a written contract to sell the same to H. P. Krebs and David Richmond for $5,000, $1,000 of which was paid in cash when the contract was made. On February 14th, Krebs and Richmond by a contract in writing sold the property to James R. Mellon, the plaintiff, and at the same time signed a written request of the defendant to execute and deliver a conveyance of the property to the plaintiff upon payment by him of the balance of purchase money. On February 16th, the plaintiff' gave notice to the defendant of his purchase from Krebs and Richmond, presented said written request, made a tender of the unpaid purchase money, and demanded a conveyance, which was refused. The plaintiff having shown title in fee to the property in dispute in the defendant on February 12, 1887, and that the defendant was in possession at the service of the writ, to show his right to recover was permitted to prove, under objection and for the time being, the signature of the defendant to a receipt, exhibit No. 1, and that two detached drafts, in pencil, exhibits Nos. 2 and 3, had been made by the defendant, one in the morning of February 12,1887, and the other in the evening of that day, at the time when exhibit No. 1 was given. Exhibit No. 1 was as follows: Pittsbtjbg-h, February 12, 1887. Received from H. P. Krebs, Esq., one thousand dollars, being the first payment on account of $5,000.00, the price to be paid to me for a lot of ground fronting about 190 feet on the P. R. R., in the 21st ward, Pittsburgh, Pa. $1,000.00. Thomas K. Davison. The plaintiff then made a number of offere of the receipt and drafts, together and separately, to be followed with testimony showing the sale by Krebs and Richmond to the plaintiff ; that a tender was made by the plaintiff of the balance of the purchase money to the defendant; that at the time of the execution of these exhibits by the defendant he had no real estate in the Twenty-first ward on the Pennsylvania Railroad other than that in dispute ; that the description of the land in the receipt applies to the land described in the praecipe and writ; with an offer to pay the balance of the purchase money into court. The offers were all objected to, were refused and bills sealed. No other testimony being offered, the court instructed the jury to find for the defendant. The jury returned a verdict for the defendant, as instructed. A rule for a new trial having been discharged, the plaintiff took this writ, assigning as error the refusal of his offers and the instruction to the jury to find for the defendant. 1. It will scarcely be contended that a full, formal contract in writing, containing a complete description of the land to be sold, and signed by both seller and buyer, is necessary to make a contract valid and binding upon both parties. It has been repeatedly held otherwise. It is sufficient if the contract be signed by the vendor: Lowry v. Mehaffy, 10 W. 387; Mc-Farson’s App., 11 Pa. 503; Tripp v. Bishop, 56 Pa. 429; Smith’s App., 69 Pa. 474; Cadwalader v. App, 81 Pa. 194. It is not essential that the price be mentioned: Bowser v. Cravener, 56 Pa. 132. 2. If, 'as was objected, the receipt given in the present case was insufficient to bind the defendant, because the land was not located and described with sufficient certainty, then this court has seriously erred in several reported cases.. In Smith’s App., 69 Pa. 474, the contract offered in evidence named neither township, county nor state, no boundaries were given and the contract was signed by the grantors alone. In Ross v. Baker, 72 Pa. 186, the receipts totally failed to describe the land by adjoiners, township, county or state, and yet they were held sufficient. We press this case upon the attention of the court. 3. The receipt in the present case was accompanied by two pencil drafts or sketches, one of which outlined the property and noted frontage of 190 feet on P. R. R., also gave distance back to alley on one side, and distance to Frankstown avenue on the other side. The other draft gave location of P. R. R. frontage thereon, distance back to an alley bounding the lot, also distance from railroad to Frankstown avenue, also location of adjoining property owned by Wm. Holmes, and other property of Davison. All these papers were delivered as part of the transaction, and at the time the contract was closed. Surely this should be sufficient to protect the purchaser and his assignee. 1. That the receipt in question is insufficient of itself to take the case out of the statute, wre need refer only to Soles v. Hickman, 20 Pa. 180, and Hammer v. McEldowney, 46 Pa. 334; for it is not pretended that the description and location of the land in controversy is capable of ascertainment from the instrument alone. To meet the requirements of the statute, the whole agreement must be in writing, and certainly the subject matter is an essential part of every contract. The receipt fails to describe the land, either as to quantity, dimensions, or location. Nor are there such other matters of description, as in Smith’s App., 69 Pa. 47, and Ross v. Baker, 72 Pa. 186, to bring the case within the maxim, id certum est quod certum reddi potest. “ If the subject matter, the land, be described, we admit evidence to apply the description to the land; but we cannot admit parol evidence, first, to describe the land sold, and then, to apply the description: ” Ferguson v. Staver, 33 Pa. 411. 2. Nor was the case helped by the attempt to prove the delivery of the drafts or papers at the time of the signing of the receipt; for, oven if they sufficiently described the land, and they did not, there was no reference to these papers in the receipt, and their connection could only be shown by parol evidence, which is not in accordance with the statute, and that is all the plaintiff proposed to do. We admit that it is not requisite that all the parts of a contract, to be good under the statute, should be contained in one paper; but it is abundantly settled by the authorities that where the contract is made up of several papers or letters, they must be so connected by written links as to form one written contract: Sugden on Vendors, 14th ed., 205; Tyson v. Killon, 3 E. C. L. R. 708; Wlieelan v. Sullivan, 102 Mass. 204.
123 Pa. 303Andriessen v. Aikens (1889)
2 OE ALLEGHENY COUNTY, IN EQUITY. No. 187 October Term 1888, Sup. Ofc.; couF below, No. 339 January Term 1881, O. P. No. 2 in Equity-. On December 30,1880, Fred. Held: and stock of the new issue was sold to the plaintiffs and others from December, 1871, up to the latter part of 1872. Tt appears that in all 1159 shares of the new stock were disposed of. The dividend of January, 1872, was declared on the old stock of $60,000 alone, and by the old board.
123 Pa. 329McIntyre v. McIntyre (1889)
~ ERROR TO THE COURT OE COMMON PLEAS NO. 2 OK ALLE-GIIBNY COUNTY. No. 109 October Term 1888, Sup. Ct.; court below, No 349 April Term 1887, C. P. No. 2. On June 15, 1887, a case stated in ejectment was filed, wherein Johnston McIntyre and Robert McIntyre, a lunatic, by T. W. McCune, his committee, were plaintiffs, and Mary Anti, Joseph, Sarah, Isabella H. and David R. McIntyre, were defendants. The facts set forth were as follows: James Boyle died in 1830, seised of a parcel of land in the Tenth ward, Allegheny city, and leaving a last will dated January 4,1830, duly admitted to probate on July 24,1830, which contained inter alia, the following provisions: “.....And to such worldly estate wherewith it hath pleased God to entrust me I dispose of the same in the following manner. “1. I will and bequeath to my beloved wife Mary all my property during her natural lifetime for maintenance and the presence incumbrance of my daughter-in-law and her children. * * * * * * * * “ 6. I will and bequeath to my daughter Mary McIntyre the one half of the land that I possess above the road, that is the north end. She will not have power to sell but may leave the same to her children.” “7. I will and bequeath to my daughter Sarah Boyle the balance of the land that I possess above the road she has no power to sell but she may leave it to her children if it should please providence that she should be blest with children of her own. If not to her brother or sister’s children or both at her pleasure.” * * * * * * * ■ The property in dispute, containing between ten and eleven acres was that devised as above to Mary McIntyre, who after the death of her mother went into possession thereof and occupied it until 1881, when she died leaving to survive her seven children, to wit: Mary A., Joseph, Sarah, Isabella H., Johnston, Robert L. and David R. McIntyre, and two grandchildren, Kate and John McIntyre, children of James McIntyre who died in 1872. James McIntyre;, her husband, died in 1855. Mrs. McIntyre left a last will, dated September 12, 1879, admitted to probate December 16, 1881, and which contained this provision: “ First. I give and bequeath to my three daughters all my estate, real, and personal and mixed, as follows: I give to my daughter Isabella one half of all my estate, to my daughter Mary Ann one fourth, to my daughter Sarah one fourth, to my said daughters in fee simple; My daughters are informed of my wishes in regard to their brother Joseph, and I commit my desire to their fulfillment.” The case stated then proceeded: The defendants Mary Ann, Joseph and Isabella H. are in possession of the land aforesaid, and each and all of said defendants refuse to recognize the plaintiffs as tenants in common of said land and also refuse to allow the plaintiffs to participate in the rents, issue and profits of the same. If the court should be of opinion that Mary McIntyre took an estate for life under the will of her father James Boyle, coupled with a power of appointment in fee to her children, and that her will is not an execution of said power, then the verdict to be for the plaintiffs for two sevenths of the land in dispute. But if the court should be of the opinion that Mary McIntyre had the power to leave it to such of her children as she should nominate and appoint, and she has executed such power by her will, then judgment to be entered for the defendants. After argument, the court, Ewing, P. J., on July 9, 1887, filed the following opinion and decree: By his will dated January 4, 1830, probated July 24, 1830, James Boyle devised as follows : Item 6, “I will and bequeath to my daughter, Mary McIntyre, the one half of the land that I possess above the road, that is the north end. She will not have power to sell, but may leave the same to her children.” The land in dispute is the land described in item 6 of James Boyle’s will. Mary McIntyre having occupied the land during her lifetime, made her will dated September 12, 1880, probated December 16, 1881, in which she devised to her three daughters, Isabella, Sarah and Mary Ann, as follows: “All my estate, real, personal and mixed,” in unequal proportions, but without any description of the real estate or reference to the power given her in the will of James Boyle. At the time of her death Mrs. McIntyre left surviving her seven children, of whom two are the plaintiffs, and as we understand the case stated, two grandchildren, the children of a deceased son, who are not parties to this suit. If the will of James Boyle gave Mrs. McIntyre a fee-simple, her will gives a good title to her daughters, the defendants. If by the will she took but a life estate with power to distribute among her children by will, we are of the opinion that her will is not a valid execution of the power, because, first, it does not purport to execute any such a power by reference to the power or to the wdll of her father, or by any description of: the property, or by any necessary intendment; non constat, that she did not have other property, of her own which she disposed of by this will; second, if in execution of the power, her will is void, because it excludes a part of the children to whom as a class she could leave the land. Did the will of her father give to Mary McIntyre but a life estate or did it give her a fee-simple or fee-tail ? Prior to the wills act of 1833 the law of interpretation was that “a devise without words of inheritance will only give an estate for life, unless it can be fairly inferred from other parts of the will that more than a life estate was intended: ” Clayton v. Clayton, 3 Binn. 476, and .numerous other cases. The cases are collected and commented on in Schriver v. Meyer, 19 Pa. 87. That James Boyle intended to devise the entirety of this land to some persons is evident to us from the whole will. In the preamble to his will he says “he is desirous to settle his worldly affairs.”.“ And to such worldly estate as it hath pleased Cod to entrust me with, I dispose of the same in the following manner.” First, he gives all his property to his wife during her life. And next he proceeds to dispose of portions of it to his children; of course subject to the life estate of their mother. If there was nothing expressly to the contrary we would conclude, that notwithstanding the rule that without words of inheritance a life estate only is devised, that it was the intention of the testator to give a fee in remainder to his daughter, Mrs. McIntyre. But he proceeds and says, that “she shall not have power to sell.” Now this condition attached to a fee is void; but as said in Grim’s App., 1 Gr. 209, when we are seeking the intention of the testator such a condition is strong evidence that the testator did not intend a fee. Then following this declaration of want of power to sell, is the power given, “she may leave the same to her children.” There is nothing in the will to indicate that by “ children ” the testator had any other meaning than the primary one, i. e., children as a class; not heirs of the body. The whole will is in accord with this view. The testator intended but a life estate in his daughter, with power to leave it by will to all her children as a class. In default of a proper exercise of the power, the children take, as a class, as tenants in common. In accordance with the decision in Stephenson v. Richardson, 88 Pa. 40, the children of'the deceased brother are entitled to one share. This view of the case shows that each of the plaintiffs is entitled to the one eighth of the whole. And now, July 9, 1887, after argument and upon consideration, the court being of the opinion that the law is with the plaintiffs, judgment is entered on the case stated in favor of the plaintiffs for the undivided two eighths of the land described in the writ, with six cents damages, and costs. Thereupon the defendants took this writ specifying errors: 1. In ruling that the children of the deceased brother were entitled to one share. 2. In entering judgment for the plaintiffs for the undivided two eighths of the land instead of two sevenths, as agreed on in the case stated. The devise in this case was, “I will and bequeath to my daughter Mary McIntyre, the one half of the land that I possess above the road; that is, the north end. She will not have power to sell, but may leave the same to her children.” The one and only question in the case is, did this devise to children, as a class, include the children of a deceased member of that class ? The rule is, that on a limitation to a class, the time of distribution defines the members that are to constitute the class, and only children in being at the time of distribution take: Coursey v. Davis, 46 Pa. 25 ; Haskins v. Tate, 25 Pa. 249; Gernet v. Lynn, 81 Pa. 94; Walsh v. Wallinger, 2 Russ. & M. 77; Needham v. Smith, 4 Russ. 819; Kennedy v. Kingston, 2 Jac. & W. 431. The question was not raised in Stephenson v. Richardson, 88 Pa. 40, and that case is not an authority in point. 1. In the will we read, “ And with such worldly estate as it hath pleased God to entrust me, I dispose of the same in the following manner.” The cases cited in Schriver v. Meyer, 19 Pa. 87, clearly sbow that the language quoted gave a fee, before the wills act of 1833, and as- tlie words against alienation are void, the direction, permission, or advice, “ but she may leave the same to her children,” alone calls for interpretation. Exit it is submitted that, as no remainder was devised over either in express words or by implication, the daughter took a fee unaffected by that clause. A proper construction of the words must fail to give them force, either to cut down the fee devised, or to incumber it with a. power to will it to her children as a class. 2. If Mrs. McIntyre had but a life estate in the land, the fee vested in her children, each child took at its birth, and the interest of James passed to his children at his death: Merriman v. Merriman, 5 Munf. 440 ; Dickinson v. Lee, 4 W. 82 ; Hoffner v. Wynkoop, 97 Pa. 134; McKeehan v. Wilson, 53 Pa. 78. Heir, issue, children, are habitually construed interchangeably : Braden v. Cannon, 1 Gr. 61. The testator was evidently inops consilii, and the language used should not receive a technical construction. And, while the case on the exceptions does not involve a final construction of the will, may not the court consider it so far as to determine, not only whether the plaintiffs take one seventh or one eighth of the land, each, but whether they are entitled to any share of it ?
123 Pa. 337Ferguson v. Quinn (1889)
ERROR TO THE COURT OF COMMON FLEAS NO. 1 GHENT COUNTY. OF AIjIj10- No. 201 October Term 1888, Sup. Ct.; court below, No. 428 December Term 1886, C. P. No. 1. A summons in ejectment to the first Monday of December, 1886, for a lot in the Sixteenth ward, Pittsburgh, was duly served, in an action wherein Robert G. Ferguson was the plaintiff and James P. Quinn, defendant. Issue. At the trial on March 8, 1888, the plaintiff showed title in himself by deed from Gustavus Stoy dated October 2, 1871, for lot No. 64 in Stoy’s plan which deed was recorded in the recorder’s office on April 19, 1872, and the property registered in the city engineer’s office, August 19, 1872, with possession in himself until possession taken by the defendant under certain sheriff’s deed in 1886 and continued until suit brought. The plaintiff then put in evidence all acts of assembly relating to the registry of lots in the city of Pittsburgh, and acts and city ordinances relating to the assessment and collection of municipal claims and liens for the construction of sewers in said city, and rested. The defendant then offered the record of No. 17 April Term 1885, Municipal Lien Docket, showing a lien filed against the property in dispute for f 5, for the construction of a sewer on Penn avenue: Also, the scire facias sur said lien, judgment, and levari facias thereon, with the return of the sheriff ,• which records showed that judgment had been taken on two returns of nihil to a scire facias and alias scire facias, the return to the last writ being, “ Property posted on former writ and nihil as-to defendant. So ans. Jos. H. Gray, sheriff:” Also, deed from Joseph H. Gray, sheriff, in pursuance of the return to the levari facias, to James P. Quinn, dated April 17, 1886, consideration $155, acknowledged and recorded. These offers were objected to, inter alia, as follows: 3. As incompetent and irrelevant, because it is a portion of the record only; that this judgment was obtained on an alias scire facias, which alias scire facias was not served in accordance with the act of assembly, and the judgment is invalid, because the alias scire facias on which it was obtained shows by the return that the writ was retained in the sheriff’s office without an effort to serve it. ,( 4. The sheriff’s deed based on the judgment is objected to because the judgment was null and void. 5. The admission of the sheriff’s deed is objected to, because it shows the sale of a piece of property on Mifflin street, and there is no evidence that the name of this street was ever changed from Mary to Mifflin, and the property of the plaintiff was purchased on Mary street, and there is no evidence of any change of name of the street. By the court: Objections overruled.1 rested. case, was called in his own behalf. propose to prove by the witness on the stand that he was the owner of this lot in question; that he is an old resident of the 17th ward, adjacent to the ward in which this property is situated; that he is in business in the 17th ward, has been and was at the time these proceedings were going on; that he had no notice of the construction of this sewer from the board of assessors, the city treasurer or city attorney; that he had no notice of the filing of this claim in court; that he was not served with notice of the scire facias or alias scire facias and had no knowledge of the sale of his property until three months or more after it was sold, and the property had gone into the hands of the defendant; that he had paid all taxes on the property; all street assessments prior to this one, as soon as they were given to him; that he saw a notice in The Pittsburgh Times under the heading of sheriff sales, of date March 20, 1886, of a lot of ground in the 16th ward, under the name of R. G. Ferguson, fronting two hundred feet on Mifflin street; that his lot was twenty feet on Mary street; that he had no notice or knowledge of the change of the name of this street until he found such to be the case in the sheriff’s proceedings, and the notice was no notice to him, or, if any, a misleading one, and did not put him on his guard. as and irrelevant. may show that the witness had no notice; you may show that the writ never went out of the sheriff’s office, that it was not posted. in support of the offer as admitted. sur municipal lien, No. 17 April Term, 1885, city of Pittsburgh against R. G. Ferguson, for the purpose of showing that the service was not proper one, was defective on its face, and that the judgment rendered on this alias scire facias was null and void, because issued and returned from the sheriff’s office without any effort serve the defendant; the return being as follows: “ Property posted on former writ and nihil as to deft. So ans. Jos. H. Gray sheriff.” Objected to as incompetent and irrelevant. By the court: Objections overruled, and evidence admitted. The plaintiff then offered to prove by Mr. Pears'on, the writ clerk of the sheriff of Allegheny county, that the alias scire facias offered in evidence was returned by him; that the return is in his handwriting; that it was returned in the sheriff’s office without being put in the hands of an officer for service, and that no effort was made to serve the defendant or find him, or post the premises on the alias scire facias. Objected to as incompetent and irrelevant. By the court: Objection sustained.2 The plaintiff then offered to show by The Pittsburgh Times of March 20, 1886, the following notice of the sheriff’s sale: R. G. FergtjsoN No. 2. L. F.; 17 April Term 1885; M. L. D. $5. Moreland. Lot fronting 200 feet on south side of Mifflin street, 16th ward Pittsburgh, and running back 100 feet to Cabinet alley. Objected to as incompetent and irrelevant. By the court: Objection sustained.3 The testimony was then closed, when the court, Colliek J., instructed the jury to find for the defendant and answered the points submitted by the plaintiff as follows: 1. That the record does not show that plaintiff at any time received notice from the board of assessors, city treasurer or city attorney, of this claim; nor that he had notice of the suit, judgment, execution or sheriff’s sale in this proceeding, viz., No. 17 April Term, 1885, municipal lien docket, and that by reason thereof he is entitled to recover. Answer: Refused.4 2. That the notice of a sheriff’s sale published in The PittsLurgh Times, under date of March 20,1886, of a lot of ground in the name of plaintiff, fronting 200 feet on Mifflin street, was such a misleading notice to plaintiff of his lot, fronting 20 feet on Mary street, as to throw him entirely off his guard; this added to the fact of the inadequacy of price paid for the lot of ground, would have justified the court in setting aside -the sale, and that by reason thereof the plaintiff is entitled to recover. Answer: Refused.5 3. That the alias scire facias, No. 17 April Term 1885, municipal lien docket, was not legally served; on its face it shows that no attempt at serving the defendant was made; that the judgment obtained by reason thereof is void, and that the verdict must be for the plaintiff. Answer: Refused.6 4. That the judgment' obtained in the case, No. 17 April Term 1885, municipal lien docket, was not acquired in strict conformity with the acts of assembly relating to municipal claims and liens in the city of Pittsburgh, and that the verdict must be for the plaintiff. Answer: Refused.’5’ 5. That under the law and facts in this case the verdict must be for the plaintiff. Answer: Refused.8 The jury having returned a verdict for the defendant, as directed, the plaintiff took this writ, assigning as error: 1. The admission of defendant’s offer.1 2, 3. The refusal of the plaintiff’s offers.3 3 4-8. The refusal of the plaintiff’s points.4 t0 8 It does not seem necessary to refer to the abundance of the authorities establishing the right to investigate the validity of judgments upon which sheriffs’ sales have been had. A sheriff’s vendee buys at his peril; not only must there be a legal judgment, but a legal execution also, to make a sheriff’s sale valid: Cadmus v. Jackson, 52 Pa. 306; Simons v. Kern, 92 Pa. 455. A party claiming under a tax sale, must show a strict, compliance with the acts of assembly: Dikeman v. Parrish, 6 Pa. 210; Shearer v. Woodburn, 10 Pa. 512 ; Wister v. Kammerer, 2 Y. 100; Smith v. Me Grew, 4 W. & S. 341. Assuming, therefore, that the judgment in this case can be shown to> be absolutely void, by reason of defective service, we say: 1. Section 13, act of January 6, 1864, P. L. 1134, Thompson's City Digest, 239, relating to assessments for sewers in the city of Pittsburgh, requires assessors to give ten days, notice to each owner, of the time and place when he may see the plot and statement. Section 15 provides: “ When approved by councils the plot and assessment list shall be placed in the hands of the city treasurer, who shall give notice,” etc. Section 17 provides that the notices therein required to be given shall be served, “ if the owner is a resident of said city, by personal service upon him, or by copy left at his dwelling* house, or usual place of business.” Not one of these notices was ever served upon the plaintiff. All proceedings which affect the rights or property of a citizen are nugatory if unaccompanied by reasonable notice: Olds v. Erie City, 79 Pa. 384; Neeld’s Road, 1 Pá. 353; Boyer’s Road, 37 Pa. 257. 2. The court had no jurisdiction to enter judgment on the fatally defective return of the alias scire facias. The plaintiff had complied strictly with the provisions of § 4, act of February 24, 1871, P. L. 126: Thompson’s City Dig. 194, with reference to registry of a description of the property in the city engineer’s office, and no “property so returned shall be subject to sale for taxes or other municipal claims thereafter to accrue as liens of record thereon, except in the name of the owner, as returned, and after recovery by suit and service of the writ on Mm, as in the case of summons, scire facias, or other appropriate writ.” If the original writ was not served on the owner as directed by the act, the want of authority to sell may be taken advantage of in an action of ejectment: Gans v. PhiladelpMa, 102 Pa. 97; Wolf v. Philadelphia, 105 Pa. 25; Simons v. Kern, 92 Pa. 455. Where the proceedings under the provisions of a statute are designed to divest the title of the owner of property, every essential requirement of the statute must be observed: O’Byrne v. PMladelphia, 93 Pa. 225; Wistar v. Philadelphia, 86 Pa. 215. The alias scire facias not having been served, the sale was made without authority. It was not a mere irregularity,'but a clear nullity, and can be shown at any stage of the proceedings: Shields v. Miltenberger, 14 Pa. 78; Kintz v. Long, 30 Pa. 501; Sheetz v. Wynkoop, 74 Pa. 198; Soullier v. Kern, 69 Pa. 16; Simons v. Kern, 92 Pa. 455; Roberts v. Orr, 56 Pa. 176. 1. Apart from the registry act, the line of decisions settles the law that a purchaser at sheriff’s sale under a judgment obtained on a scire facias on a municipal lien is not bound to show that the acts of assembly have been strictly complied with. In regard to all these he is protected by the judgment. When the record shows a defective service, a judgment by default may be reversed, but it may not be declared void in a collateral proceeding: Hering v. Chambers, 103 Pa. 176. In Simons v. Kern, 92 Pa. 455, a case under the registry act of Philadelphia, Justice Stebektt, in speaking of defective service and the proceedings prior to judgment, says: “ The omission to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner, and the like, may properly be regarded as irregularities which do not strike at the foundation of the authority for the proceedings in which they occur, and will, therefore, be cured by subsequent judicial approval.” It is also held in that case that the, Philadelphia act provides that no registered real estate shall be subject to a sale except after service of the writ on the owner, as in case of a summons, and that “ a sale made in direct violation of this statutory prohibition, is void.” 2. But the registry act of the city of Pittsburgh, and other acts relating to city liens, differ from the Philadelphia act in two important respects. The language of the Pittsburgh act is, “ and after recovery by suit and service of the writ on him, as in case of a summons, scire facias, or other appropriate writ”: Act of February 24, 1871, P. L. 126. But § 9, act of May 18,1871, P. L. 842: Thompson’s City Digest, 250, repeals all laws that conflict with its provisions, and provides that whenever a lien shall be filed for any assessment made in pursuance of any act of assembly relating to public improvements in the city of Pittsburgh, and a scire facias is issued thereon, it shall not bo necessary to file an affidavit of claim, but “judgment may be entered thereon upon two nihils or service, in default of appearance or sufficient affidavit of defence.” This act does away with the prohibition, if any, in the registry act, and the service becomes, as in all other cases, simply a matter of irregularity in the proceedings, and is, therefore, not a subject of inquiry in a collateral proceeding. Moreover, there is a proviso to § 8, act of February 24, 1871, that such owner shall repay to snob purchaser within one year from date of deed,, with ten per centum added thereto, and “ such owner not complying with this proviso shall have no right or title to such property, but the title shall remain good in the purchaser.” The registry acts of Philadelphia are the act of March 14, 1865, P. L. 320, and the supplementary act of March 29,1867, P. L. 600, and the provisions thereof as to the service of the writ are essentially different.
123 Pa. 346Vacation of Henry Street, Allegheny City (1889)
No. 202 October Term 1888, Sup. Ct.; court below, No. 1 September Term 1887, Q. S. On September 5, 1887, the petition of more than twelve freeholders of the vicinity of a road or highway known as Henry street, was presented, representing that before that portion of what is known as Pleasant Valley, in the Second ward, Allegheny city, was taken into the city, a public road or highway was laid out therein by the then proprietor, to run from Taggart street across to the…
123 Pa. 356Appeal of the Odd Fellows Savings Bank (1889)
FROM THE DECREE OE THE ORPHANS’ COHRT OE ALLEGHENY county. No. 215 October Term 1888, Sup. Held: must, in accordance with the principles stated in this opinion, make restoration. This is the direct and appropriate remedy, and avoids the additional expense and delay involved in the alternative prayer.
123 Pa. 365Moorhead v. Wolff (1889)
ERJROB TO THE OOTJBT OF COMMON PLEAS NO. 1 OP A LLE-G-1 IF NY COTJNTY. No. 220 October Term 1888, Sup. Ct.; court below, No. 189 September Term 1888, C. P. No. 1. On J uly 24, 1888, a summons in assumpsit was served in an action by B. Wolff, Jr., executor and trustee under the will of Martha McD. Smith, deceased, against Frank T. Moorhead. The controversy arose upon the plaintiff’s statement and the defendant’s affidavit of defence. The plaintiff’s statement set forth the facts following : To No. 280 December Term 1887, B. Wolff, Jr., presented his petition to the Orphans’ Court of Allegheny county setting out that Mrs. Martha McD. Smith had died in 1880, seised in fee inter alia of a lot of ground in the first ward of Allegheny city, at the corner of Allegheny and Lincoln avenues, and leaving a last will, admitted to probate on February 24, 1880, devising to her executors therein named, of whom the petitioner was the sole survivor, all her real estate, including that above mentioned, in trust, inter alia, for the following purposes [quoted from the petition] : 1. To apply the proceeds of personal property and the net rents, issues and profits of real estate, to the payment of debts and certain legacies. 2. After certain payments have been made, as therein directed, to divide the net rents, etc., among her five children hereinafter named; that portion thereof payable to her two daughters, to be for their sole and separate use, and in case of the death of any of the said children, the child or children of a deceased son or daughter to enjoy the parent’s share. 8. Upon the full execution of the previous provisions in regard to the trust thereby created, the testatrix directs that the whole of her remaining property and estates (including the real estate above described), so far as known and in undisputed possession and of ascertainable value, shall be valued and appraised bj disinterested citizens of Allegheny county, who shall value and appraise and make partition of her said property and estates in as many parts or shares as there shall then be of her children living and child or children of any that may be dead, computing per stirpes. She then further provides that “the partition and allotments in severalty so made, shall operate as a devise and bequest by me of said several parts or shares to such of my children as shall then be living, for and during his and her natural life, and to the surviving widow of any of my sons, during her life, if such son shall have left living issue, so long as she shall remain his widow. Upon the death of any son having a child or children, grandchild or grandchildren, his share or part shall go to such descendant, per stirpes, in fee and absolutely, subject to the estate given as aforesaid to his widow, if any. At the death of my daughters respectively a share of each shall go directly in fee and absolutely to her child, children, or other descendant per stirpes, without any estate or interest therein of her husband; provided, however, that any of my sons or daughters may by last will or testament, or appointment in nature thereof, direct in what way or proportions the same shall go to his or her descendants, and my daughters may, if they have living issue at their death, respectively give and devise an interest or estate for life to their surviving husbands, in not exceeding one third of their said estates. And should any of my said sons or daughters die having no living issue, their shares or parts shall thereupon go to the survivors and to their descendants, and the descendants of such as may have died leaving issue, per stirpes, according to the limitation, and for the estates aforesaid:” Thus creating as your petitioner is advised, contingent remainders which it is desired by this petition to defeat. Said will gives no authority to your petitioner to sell real estate, except in a contingency which has not arisen. The petition then showed that the testatrix left her surviving five children, naming them, four of whom were married and had children, whose b names and ages were given; and further represented that the real estate first above referred to was subject to a mortgage, made by the decedent in her lifetime, to James Yeech, trustee, for $7,000, assigned of record to Mrs. Anna M. Fahnestock; that the property was entirely unproductive and was costing the estate $450 per annum for interest on said mortgage, and taxes; that the petitioner had been offered $16,000 at private sale for said property by Frank G. Moorhead, and he had agreed to sell the same, subject to approval, etc.; that the price offered was a good one, better, he believed, than he could obtain at a public sale, etc.: “ Your petitioner, therefore, showing to the court by the statements above made that it will be for the interest and advantage of those interested that the said property should be sold, and that the same may be done without injury or prejudice to any trust, charity or purpose for which the same is now being held, and without the violation of any law which confers an immunity or exemption from sale or alienation, and, having attached hereto a copy of the said will, in which the trusts above mentioned are more fully and at large set forth, respectfully .prays the court to decree a private sale of said property upon the terms and conditions above stated, for the purpose, inter aha, of barring or defeating the contingent remainders above mentioned. And he will ever pray,” etc. Citations awarded upon the foregoing petition were duly served upon the life tenants and such of their children as were in esse, and on February 18,1888, Mr. R. D. Wilson, appointed guardian ad litem of the minor children of the life tenants and trustee of the contingent remaindermen in posse, answered that it would be for the best interest of the parties represented by him that the property should be sold. Thereupon the court signed a decree authorizing a private sale of the premises described, in fee simple, “ free of any contingent remainders therein or of any entailment thereof, or of the right of the commonwealth to have inquisition for or forfeiture of the same.” On April 20, 1888, a written' contract was signed by Frank T. Moorhead agreeing to purchase the premises described for $16,000, and broker’s commission of $250, “ if the title is satisfactory ; ” and on return made of said sale. to the court, on March 3, 1888,' it was duly confirmed. The plaintiff then further set forth the refusal of the defendant to pay according to his contract of April 20, 1888, his own willingness to discharge the lien of the mortgage upon the property sold, and prayed judgment for the amount to be released upon the defendant’s compliance with the terms of said agreement, etc. The defendant’s affidavit of defence, set forth, in substance, (1) that the mortgage made by the decedent in her lifetime to James Yeech, in trust, was now assigned of record for the sum of 18,837.50, and no provision had been made for the payment of the same except out of the proceeds realized from the private sale, which sale having been made for the purpose of barring contingent remainders, and the money realized therefrom substituted for the land, the defendant was advised the mortgage could not be paid in that manner; (2) that the said lot of ground was further incumbered by two certain judgments against two of the life tenants, the numbers, terms, and amounts of which were set out, the liens of which the plaintiff had neglected and refused to remove, wherefore the title offered was not satisfactory. A copy of the will of the decedent was attached and made a part of this affidavit. On a rule for judgment for want of a sufficient affidavit of defence, the court, Stowe, P. J., on September 9,1888, ruled: Even assuming that the Orphans’ Court had no power under the act of 1853 to direct the sale of land for the payment of debts, I think there is sufficient upon the face of the petition filed in the proceeding there, to give that court jurisdiction under the act. If this is so, I do not think it makes any difference whether the interests of the sons of testatrix were under the will vested or contingent, so far as the present case is concerned. The rule for judgment is now made absolute. Judgment having been entered for the plaintiff for §16,823.19, the defendant took this writ, assigning as error the order making absolute the rule for judgment, instead of discharging said rule. The contract of purchase was expressly made * if the title is satisfactory.” Satisfactory to whom ? Certainly not to the vendor, but fco tbe vendee. The objection, however, must be made in good faith, and the action being upon articles for the sale of land to recover the purchase money, it is in effect an equitable proceeding to compel specific performance of the contract, and is governed by the same equitable principles: Nicol v. Carr, 35 Pa. 381; Swayne v. Lyon, 67 Pa. 436; Singerly v. Thayer, 108 Pa. 291. We submit that the title was not satisfactory, and its rejection not capricious, because: 1. The petition for the sale is made by the executor and trustee under § 3, act of April 18, 1853, P. L. 503. Does this mean a trustee interested in the estates of the life tenants* or contingent remaindermen to be barred, or any trustee* whether interested or not ? The trusts created by the will and lodged in the executor were only to continue until (1) debts were paid out- of the personalty and the rents* issues and profits of the real estate; and (2) until a legacy of 15,000 was paid. The trusts then cease, and the land is devised to the testatrix’s children for life, remainder to their children. The act does not contemplate a sale by an executor whose whole duty is to bring the estate into court for distribution. The estate of a trustee is commensurate with the purposes of the trust and ceases when there are no further duties to perform: Williams’s App., 83 Pa. 377. The court must obtain jurisdiction in a legal manner: Pittsburgh v. Walter, 69 Pa. 366; Leedom v. Lombaert, 80 Pa.-381; if it do not, its decree may be impeached collaterally for want of jurisdiction: Torrance v. Torrance, 53 Pa. 505; Leedom v. Lombaert, supra; Elliott v. Piersol, 1 Pet. 328; and the facts set forth in the petition settle the question of jurisdiction: Torrance v. Torrance, supra. The only reasons for a sale, in which the petitioner is interested, so far as contained in the petition, are for the payment of debts and the legacy; but there is no act of assembly authorizing a private sale of real estate for the payment of debts: Spencer v. Jennings, 114 Pa. 618. 2. The land is incumbered by the mortgage executed by the decedent in her lifetime, and the decree does not provide that the sale shall be subject to this mortgage, or that the land shall be sold free and discharged of liens. The lien of the mortgage is therefore preserved, not only by § 2, act of March. 28, 1867, P. L. 48, but also by the act of March 22, 1887, P. L. 6. Can the purchase money of the sale be used for the payment of this mortgage? Section 6 of the act of 1858, which provides that the purchase money shall in all respects be substituted for the land, after payment of liens, when read with § 2 of the act of 1867, means that only liens which are discharged out of the sale shall be paid out of the purchase money. And since the act of 1867, the purchaser at private sale is bound to see to the application of the purchase money, except when the sale is for the payment of debts which are liens not of record: Price on the Price Act, 131. The mortgage is one certain debt known to the trustee’s vendee. It therefore falls within the principle that where the trust is of such a nature that the purchaser can reasonably be expected to see to the application of the purchase money, as if it be for the payment of legacies which are scheduled or specified, ho is bound to see that the money is applied accordingly: Grant v. Hook, 13 S. & R. 259: Cadbury v. Duval, 10 Pa. 265; First N. .Bank’s App., 19 W. N. 309. are against certain of the life tenants. (a) The life tenants take a vested remainder for life to vest in possession on the determination of the trust estate: 2 Amer. L. C. on Real Property, Sharswood & Budd, 281. Every kind of estate in land is bound by the lien of a judgment: Diysdalo’s App., 15 Pa. 457; Amelong v. Dorneyer, 16 S. & R. 323; Mitchell v. Hamilton, 8 Pa. 486; Thomas v. Simpson, 3 Pa. 69; Hoffman’s Est., 2 Pears. 317; Ogden v. Knepler, 1 Pears. 145; De Haas v. Bunn, 2 Pa. 335; Reed’s App., 13 Pa. 476. (b) Are these liens divested? They are preserved, in ease of a private sale, by § 2, act of March 23, 1867, P. L. 43. The act provides that all parties having a present or expectant interest in the land to be sold must be made parties or warned by citation. A lien creditor has an interest, in that has a right to proceed against the land to enforce payment his lien. True, in cases of amicable partition, an incumbrancer is not entitled to be made a party, because his incumbrance is transferred from the undivided interest to the interest held in severalty: Long’s App., 77 Pa. 151. But here lien creditors are not parties to the proceeding and are not by it, and in the years to come, the vendee of this trnsmay be annoyed and a these judgments. A title is not marketable, which ex-to litigation: Swayne v. Lyon, 67 Pa. 436. The marketable character of a title a determination of the court, on the papers and other facts submitted to it, and the opinion of a witness, however learned, -could avail nothing:” Murray v. Ellis, 112 Pa. 485. And there is no analogy between a contract for the sale of a patent elevator, which any sensible man would want to test before paying for it, and an agreement for the sale of real estate. Singerly v. Thayer, 108 Pa. 291, is therefore irrelevant. 1. Section 3, act sale “may be decreed on the petition of any trustee, guardian, committee, or person interested,” and § 4, that it be made “ by trustees, executors, administrators, guardians, committees, or owners having a present interest.” Undoubtedly, Mr. Wolff is an owner having a present vested interest, for he is in possession under the will. Moreover, an inspection of the petition will reveal the fact that it contains averments answering to four distinct grounds of jurisdiction under § 2 of the act. 2. The two not liens upon the real estate sold. The interest of the defendants is that of a contingent remainder. The cases cited, as to a process sale of the interests of these defendants, simply amount to this, that a judgment creditor may levy upon and sell a contingent interest, and, if the interest ever becomes vested, the purchaser may take the interest instead of the defendant. But the proceedings under the act of 1853, are for the very purpose of barring the contingent interests. Moreover, one of the judgments belongs to the estate, and the trustee would be estopped by his deed, and the other was not entered until after the decree of court for the sale. 3. And what is to hinder the payment gage by the trustee ? Section 6 of the act enacts that the purchase money shall be substituted for the real estate sold, provided that no principal moneys raised by sale or mortgage, as aforesaid, shall be expended for arty other purpose than for the payment of liens upon, or the improvement of the same real estate, when mortgaged, or other real estate when held for the same uses and persons.” It would be remarkable for a court to hold that the proceeds of this sale could not be applied to the mortgage, if the purchaser should refuse to assume the mortgage as part of his purchase money.
123 Pa. 374Philadelphia Co. v. Pittsburgh (1889)
1 OE ALLEGHENY COUNTY, IN EQUITY. No. 228 October Term 1888, Sup. Ct.; court below, No. 628 March Term 1888, C. P. No. 1 in Equity. To the number and term of the court below, the Philadelphia Company filed a bill in equity against the city of Pittsburgh and Vm. JR.. Ford, collector of delinquent taxes, which in substance averred the facts following: 1.
123 Pa. 381McDowell v. Hutchinson (1889)
1 OF ALLEGHENY COUNTY, IN EQUITY. No. 89 October Term 1888, Sup. Ct.; court below, No. 122 December Term 1886, C. P. No. 1 in Equity. Held: and what were the profits of the contract. That the delivery of the bonds and stock by the bridge company to the plaintiff was known to the defendant and unobjected to by him, and to that extent the provisions of the assignment to the defendant were abrogated by and with the defendant’s consent. The prayers of the bill were: 1.
123 Pa. 414Patterson v. Frazier Bros. (1889)
1. When, on the trial of a scire facias sur mechanics’ lien filed for work and materials furnished for the “ erection and construction ” of a building, the facts are ascertained or undisputed, it is for the court to determine what does or does not constitute a new structure. 2. In such ease, if the alterations, though extensive, are almost wholly upon the interior of the building, the exterior remaining substantially the same, it is the duty of the trial judge to instruct that there has been no such change of the structure as to amount to a new erection within the act of June 16, 1836, P. L. 696. 3. It seems, that when a lien is filed for work, etc., for the “ erection and construction ” of a building in Allegheny county, and the evidence is undisputed that the work, etc., were for alterations of such building and not within the act of 1836, it is not valid under the act of May 1, 1861, P. L. 550, extended to Allegheny county by the act of February 16, 1865, P. L. 150.
123 Pa. 421Dickson v. Hollister (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 32 October Term 1888, Sup. Ct.; court below, No. 407 March Term 1887, C. P. No. 1. On February 7, 1887, a summons in case was served in an action by Alfred Hollister against Dr. John S. Dickson and Sarah Dickson, his'wife, -to recover damages for personal injuries received through the alleged negligence of the defendants. Issue. At the trial on November 17, 1887, the facts appearing in evidence were substantially as follows : On April 10, 1886, the plaintiff, a resident of Utica, New York, was in Pittsburgh, as a traveling salesman for a drug house in New York city, and in the afternoon of that day when passing in front of property belonging to the defendants on Ninth street, in the pursuit of his business, he stepped upon the grating which covered a coal-hole in the foot way. The grating was displaced by his step upon it, and turned or slipped away, whereby the plaintiff fell into the coal-hole to his arm-pits, receiving a severe injury upon his right leg below the knee. He was confined to his bed at the St. Charles Hotel for two months, under treatment, and was off duty for still another month. Erysipelas supervened during his confinement. His testimony, as to the occurrence resulting in his injury sufficiently appears in the charge of the court below and in the opinion of this court. Dr. Orr, his physician, testified that the erysipelas set in on the sixth or seventh day; that erysipelas frequently though not usually followed wounds, but if there had been -no wound there would have been no erysipelas. Other witnesses were called by the plaintiff to prove his injuries, the resultant suffering and the expenses incurred, when he rested. The defendants called Thomas Johnson, an employee of the defendants -who had charge of the building in front of which the injury occurred, and who testified that the coal-hole was not in use at the time, and he had secured the grating in its place by a strong wire through the bars fastened to piece of wood; “ When I discovered it worked loose so often, I spoke to the Doctor about having it fixed some other way; he told me to have it fixed as I thought best; ” the witness then went to M. J. Farrell a blacksmith and had him fix the grating by-putting clamps on it. M. J. Farrell testified that he had been a blacksmith for thirty years; that he went and examined the grating, and though he thought it unnecessary he put on the clamps as a matter of caution. Other witnesses called by the defendants testified that the grating was amply secured. In his rebuttal, the plaintiff called II. M. Wilson, a civil engineer, who testified to an examination of the coal-hole made by him and that the flanges of the opening had been so worn away by the throwing in of coal that the grating could no longer be made secure. At the close of the testimony, the court, Stowe, P. J., charged the jury: The main features of this case are not controverted. I iiave no doubt you will believe from the evidence that Alfred Hollister, the plaintiff, in going along the pavement on Ninth street, below Penn, in the pursuit of his ordinary and proper business, stepped upon this grating, or at all events where the grating ought to have been; I presume it was partially in place, at least; that it gave way, or slipped out of place, and he fell in the manner he describes, and the little boy, Richard Dickson, also describes, and received the injury he complains of here. [There is no evidence to indicate, nor is it pretended on the part of the defendants, that the plaintiff was guilty of any negligence himself. There is some sort of an intimation, and that is indicated only by the testimony of little Richard Dickson, that the plaintiff may have been intoxicated at the time; but even if he had been drinking beer or liquor, or even if he were intoxicated, if that drinking or intoxication did not tend to bring about the accident, did not tend to the loosening up of this grating, or cause the plaintiff to step upon it, when he otherwise ought to have stepped somewhere else, as the evidence fails entirely to indicate, it does not make any difference. The injury he received would have no connection with his being intoxicated, even if he were, which, it seems to me, the evidence entirely fails to show, and therefore there is nothing which would justify the jury in finding he was guilty of what we call contributory negligence.] 1 Then the question arises, and it is the whole question apparently in this case, whether the defendants exercised due and proper care in arranging this grating, and seeing if it were made properly originally; that it was kept in proper shape so as to protect persons who had a right to pass along there. Parties who make holes in the pavement know, and are bound to-know, must know, as everybody else does, that if the covers are not kept solidly in place, somebody may fall through and get hurt, and they are therefore bound to exercise all reasonable skill, care and prudence with reference to the possible injury that may occur to persons passing along the street. Of course, they are not insurers, but they are bound to exercise such a degree of mechanical skill in arranging the openings as would be ordinarily proper and necessary to protect travelers in view of what might occur. If the defendants did everything in arranging or having arranged, tins grating, that was prudent and cautious, in view of these circumstances, they are not liable here, without they have neglected in some way or other to keep the grating in proper order and repair; and when I speak of the defendants I speak of the man Johnson, who had charge of the grating, because the defendants are responsible for the neglect of Johnson. If the defendants put the charge of this grating in the hands of Johnson, gave him authority to look after it, and Johnson neglected his business, and the plaintiff was hurt, it was the same in legal effect as if the defendants had kept charge of it themselves. Johnson says that before he had these flanges put upon it, the grating got out of order from time to time, and his attention was attracted to it, and he had wired it down in some way, but it still kept getting out of shape, so as to indicate it might become dangerous. [He then went to the gentleman who fixed it, Mr. Farrell, I believe, and had these flanges, or ear pieces, put on. Farrell says they were not at all necessary; that the grating was sufficient before. In that he is probably mistaken, because the evidence of Johnson himself shows that it was getting out of order. But at any rate, they were put on as á matter of extra precaution, and Farrell says in his opinion it was perfectly safe. Now, if they did make the grating safe, in so far as ordinary skill, prudence and foresight could anticipate any possible or probable damage arising from it, that is all tbe defendants are bound to do, and they are not liable for an accident of this kind; but because they sent to a man they thought skilful, and engaged him to do the work, it does not necessarily follow that they are not liable. It must be established reasonably to the satisfaction of the jury, that the man employed did the work in a proper and reasonable way, such as would be proper and sufficient protection under the circumstances. I cannot relieve myself of a duty 1 owe to the public by employing a man I think is competent to do the work. I must go further, and prove that when he did it, he not only did the work to the best of his judgment, or the best of my judgment, but did it in a way which was reasonable and proper in the judgment of the jury, under all the circumstances of the case.] s I may think a man is competent to do a certain piece of work, and he may make me a very bad job, and by his bad work somebody may be injured. I cannot avoid my liability in a case of that kind where I owe a duty to the public, by showing I have exercised the best judgment I had. If that were not the law I would be imposing somebody between me and the public when a duty devolved on me. I am responsible, in a case of that kind, for the neglect, or want of skill, of the party I employ. The defendants request the court to charge [inter alia] : 3. If the defect in the coal-hole covering as a lawful structure be occult, or the result of a wrongdoer’s act, either express notice of the defect must be brought home to the defendants and a failure on their part to heed said notice, or, the defect must be so notorious as to be evident to all pedestrians passing in the immediate neighborhood, before the plaintiff can recover. Answer: Refused.4 4. To entitle the plaintiff to recover, it must be established by affirmative proof that the defendants were guilty of an omission of duty consisting in their not having taken reasonable precautions to render the coal-hole covering safe, upon notice of the defective condition of said coal-hole covering. Answer: Refused. 5. If the jury believe that the defendants employed a person skilled in repairing iron work, who put on the rim of the coal-bole covering tbe iron plates or clamps, and who expressed his belief that the presence of the iron clamp would prevent any accident to a person passing along the pavement and stepping upon the coal-hole covering, the defendants took reasonable and proper precautions in that instance, and they cannot be charged with negligence. Answer: Refused. It is very strong evidence of proper care on part of defendants, but not absolutely conclusive. The question, after all, is not merely whether defendants thought the grating secure, but whether in fact it was so arranged as to fully indicate, to a reasonably skilful and cautious man having proper knowledge of such contrivances and the dangers incident to their use, that it was safe to pedestrians.'5 % * # # * « itS- As to the damages, the rule has been properly stated by Mr. Marshall. First, the plaintiff, if he is entitled to recover at all, is entitled to recover his actual expenses. That involves doctors’ bills, medicine, nursing and hotel bills. That is the money this accident has actually cost him. He is entitled to receive that, if he is entitled to recover. Then he is also entitled to recover the value of his lost time; that is, what he would have made during the time- he was laid up. These things can be easily computed. He gives three months as the time he was disabled absolutely, and he rates the value of his time at f 100 a month — says that is the average sum he could have made. If that is so you can arrive at the amount with some degree of certainty. Then there is another element of damage — compensation for pain and suffering he has undergone ; that is a matter we have to keep suggesting to juries in cases of this kind, that is to be governed by the judgment of the jury itself. There is not of course, any standard by which we can weigh human suffering; there is no manner, indeed, in which we can tell the degree of suffering a man endures. [The fact is, one man may endure pain better than another one; may endure more pain with a similar injury; but that there is suffering and pain incident to all such injuries as this, is manifest not only to physicians, but to everybody; and the evidence in this case is that the pain was very severe, especially after erysipelas set in. As to that, if the erysipelas would not liave occurred if the injury had not happened, it is to be considered by the jury as part of the injury itself, to be compensated for in some way.]:s The jury returned a verdict in favor of the plaintiff for $1,325. Judgment having been entered, the defendants took this writ, assigning as error : 1-8. The parts of the charge embraced in [ ]1 to 3 4, 5. The refusal of the defendants’ points.4 5 1. The court instructed the jury, in effect, that there was no evidence on which they could find the plaintiff guilty of contributory negligence, and thus withdrew this question from their consideration. Contributory negligence was disclosed by the testimony of the plaintiff himself: “ I was going along and I stepped on this coal-hole cover, it went out in front of me and I wont in;.It was done so quickly, T couldn’t tell how it went out,” etc. The action of the court was therefore clearly erroneous: Easton Bor. v. Neff, 102 Pa. 478; Howard Express Co. v. Wile, 64 Pa. 201. The degree in which the plaintiff contributed to the accident is unimportant: Monongahela City v. Fischer, 111 Pa. 9; Lehigh V. 11. Co. v. Greiner, 313 Pa. 600. 2. That a person employing an independent contractor, whose business it is to do certain work, is not liable for loss or injury resulting from imperfect work if he exercise no supervision or control over the contractor, has been repeatedly ruled and hardly needs authority to support it: Chartiers V. Gas Co. v. Lynch, 118 Pa. 370; Árdesco Oil Co. v. Gilson, 63 Pa. 151. In the latter case it was said : “ It may be considered as now settled, that if a person employ others, not his servants, but mechanics and contractors in an independent business, and they are of good character, he incurs no liability for injuries resulting to others from their negligence or want of skill.” The question was considered at length in Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185. 3. The judge too broadly charged the jury that if erysipelas would not have occurred unless the accident had happened, then tbe plaintiff was entitled to recover for tbe suffering from tbe erysipelas, as if it were a part of tbe original wound. This wholly eliminated from tbe case tbe question of intervening causes, and withdrew tbe question of fact as to whether tbe wound directly and solely caused the erysipelas. If tbe wound were a part of tbe cause of tbe erysipelas, and yet there were intervening causes without which erysipelas would not have set in, then tbe defendants were not liable. Tbe defendants were only liable for tbe probable consequences of their own negligence, and not for intervening causes subsequent to tbe injury. 4. Tbe defendants’ third point was based upon tbe ruling of this court in Rapho Tp. v. Moore, 68 Pa. 404. Farrell, although be considered tbe covering of the coal-bole sufficient, yet added tbe clamps to keep tbe grating in its place more securely. There is no evidence to show that tbe covering was out of order or dangerous after tbe clamps were added. And if the coal-bole as fixed was dangerous, it was a latent defect, and one of which tbe defendants bad no notice. 1. The question of contributory negligence was not raised in tbe argument of tbe case in tbe court below, nor was it raised in tbe defendants’points presented. Nor was there evidence tending to prove contributory negligence. Tbe doctrine of independent contractor has no application. The language of tbe court excepted to, is the best answer to tbe third assignment of error: “ If the erysipelas would not have occurred if the injury had not happened, it is to be considered by tbe jury as part of tbe injury itself.” 2. To have affirmed the planks in tbe platform of the fourth assignment of error would have been gross error. That the condition of the coal-bole imist have been so notoriously defective as to attract tbe attention of persons passing by, before tbe owner would be held responsible is a startling proposition. We submit that owners who place a convenience for their property upon a traveled street should be held to know more about its condition than a pedestrian passing in tbe immediate neighborhood.
123 Pa. 431Pantall v. Dickey (1889)
ICR BOB TO TH E COURT OK COMMON PLEAS NO. 2 OK ALL EGHENY COUNTY. No. 55 October Term April Term 1887, C. P. No. 2. On March 5, 1887, and to the number and term referred to in the court below, the transcript of a judgment before B. McKenna, alderman, in favor of William W. Dickey against J. Bees Pantall and John Davis, for $200 and $6.75, costs, was filed, and judgment entered thereon. J. Rees Pantall, one of the defendants, on presented his petition, which with the exhibits thereto attached disclosed the facts following: On June 12,1885, William W. Dickey brought suit before B. McKenna, an alderman of Pittsburgh, against' J. Rees Pantall and John Davis, who were residents of the commonwealth, but non-residents of the county of Allegheny. The summons was issued to a constable, returnable on June 18th, was returned served, and on the return day, defendants not appearing, judgment by default was entered for $200 and costs. Execution was issued upon the judgment on May 24, 1886, and returned the next day, no goods. On June 14, 1886, a transcript of the alderman’s record of the judgment was procured, carried to Jefferson county, and a judgment entered thereon upon the docket of John T. Bell, a justice of Punxsutawney borough, who then issued an execution against the defendants. On August 10, 1886, a writ of certiorari, issued from the Court of Common Pleas of Jefferson county at the instance of the defendants, and directed to Bell, the justice, was returned, and on September 20, 1886, exceptions were filed by the defendants (/plaintiffs in the writ), which were as follows: 1. The summons was not by it was issued, or by any one who appears by the record to have authority to serve it. 2. The alderman acquired no jurisdiction oyer the defendants below for the reason that they were non-residents of the county where the original proceedings were commenced, the same being by a long summons instead of a short one. 8. That John T. Bell, Esq., had no authority to issue an execution or entertain any proceedings upon the transcript in this case for the reason that it does not have the original summons and other evidence connected therewith as provided by law. On October 80, 1886, the Court of Common Pleas of Jefferson county, sustained the foregoing exceptions and the proceedings of justice Bell were reversed. Afterwards, on February 27, 1887, the plaintiff procured a second transcript from the record of alderman McKenna, and on March 5, 1887, caused judgment to be entered thereon in the Court of Common Pleas No. 2 of Allegheny county, and then caused to be issued a writ of testatum fieri facias thereon, directed to the sheriff of Jefferson county. The petitioner prayed that the testatum fieri facias should be stayed and the judgment entered upon said last mentioned transcript be stricken from the record. A rule to show cause was granted and the writ stayed. The answer to this rule, if any were filed, was not shown by the paper book. The defendants filed the following reasons for the granting of the prayer of the petition: 1. B. McKenna, alderman, never acquired jurisdiction of this case ; the defendants being non-residents, were only amenable to summons returnable not less than two or more than four days from the date thereof, and his proceedings by reason of error in the summons were coram non judice and void. 2. The plaintiff is estopped and bound by the judgment of the Court of Common Pleas of Jefferson county had in proceedings on certiorari issued to Justice Bell, of Jefferson county, upon whose docket a transcript of the above proceedings and judgment had been entered by removal and from whoso docket an execution had been issued. Ou January 3,1888, the court, Ewing, P. J., filed the following opinion and decree: The judgment in this case is on a transcript filed of proceedings and judgment bad before one men of the city of Pittsburgh. The judgment of the alderman was entered June 18, 1885. On May 25, 1886, an execution issued thereon was returned, No goods to levy on. The transcript was filed as a judgment in this court March 5, 1887. One ground alleged for interfering with the fieri that it should be restricted to a levy on real estate. The uniform practice in this county lias been, for a longer time than knowledge of our oldest practitioner, that when the transcript showed an execution issued by the justice and a return “ nulla bona,” the sheriff levies on either realty or personalty an, execution issued from the Common Pleas. All questions on that practice are set a,t rest by the act of assembly of June 24,1885, P. L. 160. The principal ground act March 20, 1810, 5 Sm. L. 171, a transcript of this judgment before the alderman was made out, certified and delivered to a justice of the peace of Jefferson county for execution ; and an execution was issued thereon. The defendants had issued a certiorari from the Court of Common Pleas Jefferson county to the said justice at No. 284, September Term of said court, and on October 80, 1886, that court entered order reversing the proceedings before the justice. It is claimed by defendants’ counsel that the order of the Court Common Pleas of Jefferson county is in fact a reversal of the judgment before the alderman in Allegheny county, and that it is conclusive in this court on the present application. Adams v. Hill, 1 Luz. L. Peg. position. We do not understand the case to so rule. On the contrary, it excludes any inference that the setting aside the execution on the transcript sent to the Luzerne county justice, affects the judgment of the justice in Lancaster county. In that case there had been neither summons, appearing, nor hearing, but a judgment had been entered before, the Lancaster county justice on a judgment note for an amount beyond the jurisdiction of the justice. The judgment on its face was clearly void and no execution could issue thereon. The case of Pickerton v. Lafferty, 2 W. N. 274, by defendants’ counsel, is not in point. A judgment on transcript from an alderman had been entered in one of the courts of in Philadelphia county. In the meantime another of the courts of Common Pleas of Philadelphia on certiorari to the proceedings before the alderman, had reversed the judgment; and the court on evidence of this reversal set aside the judgment entered on the transcript. Any one of the four courts of Philadelphia had express power over the proceedings before tbe alderman. language of the act of 1810, under which the transcript was sent to the Jefferson county justice, is very similar to the act of April 16, 1840, P. L. 410, authorizing the transfer of judgments from the court of one county to that of another. Yet it has been uniformly ruled that the court to ■which the judgment has Leen transferred has no power to affect the original judgment. An order of the court striking off a judgment so transferred, on the ground that the record did not show jurisdiction in the court entering the original judgment, or for any other reason, good or bad, would not affect the original judgment. power of the court of Jefferson county to set aside the execution issued by the justice in that county, and that that order stands until reversed by the Supreme Court, we are unable to see how that court had or has any jurisdiction affect the judgment entered before the justice in tbis county, and this, regardless of the reasons that court had for setting aside the proceedings. The judgment before the alderman can only be reached by certiorari or appeal to one of the courts Common Pleas of Allegheny county. It is not plainly void its face. necessary whether or not alderman had power in this case to issue a long summons, whether only a short summons conld issue. The judgment stand until it is reversed in a legal manner. .» now January 3, 1888, the rule to show cause in this is discharged, and the petition of defendants is dismissed. The defendants then took this writ, assigning as error the refusal of the court to strike off the transcript and judgment as prayed for. 1. Jurisdiction, is the power to hear and determine the subject matter in controversy, between the parties; to adjudicate ■or exercise judicial power over them: Rhode Island v. Massachusetts, 12 Pet. 718. By §§ 22 and 25, act of March 20,1810, 5 Sm. L. 171, express authority is given to issue the writ of ■certiorari to remove the cause from the justice of the peace to the Court of Common Pleas of Jefferson county. Section 17 ■of said act makes the judgment entered by justice Bell a judgment the same as if the suit was originally brought before him. And that the Court of Common Pleas of Jefferson county could inquire into the alleged want of jurisdiction of aider-man McKenna, there can be no doubt: Silver v. Schuylkill Co., 32 Pa. 356. It is never too late to raise the question of jurisdiction: Moore v. Wait, 1 Binn. 220; Collins v. Collins, 37 Pa. 387. That court declared the judgment before aider-man McKenna void, because no jurisdiction was conferred by the service of the long summons upon defendants. 2. The Court of Common Pleas of Jefferson county having jurisdiction, the judgment so rendered is final and conclusive: § 22, act of March 20, 1810, 5 Sm. L. 171; Ex parte Watkins, 3 Pet. 203; Marsh v. Pier, 4 II. 273; even though erroneous : Borland v. Ealy, 43 Pa. Ill; Cleveland etc. R. Co. v. Erie City, 27 Pa. 380. Moreover, the act of June 24,1885, P. L. 160, relating to judgments before city recorders, magistrates, aldermen and justices of the peace, conferred no authority upon the Court of Common Pleas of Allegheny county to enter judgment upon the transcript in this case. The previous judgment upon the writ of certiorari stands conclusive upon the plaintiffs, and all subsequent proceedings are void. The refusal of the court below to strike off the transcript and judgment is not the subject of a writ of error: Henry v. Brothers, 48 Pa. 70. 1. But the order of the court was right, because the Court of Common Pleas of Jefferson county had no power over the judgment before alderman McKenna, and therefore its order on the certiorari is a nullity: Keck v. Appleback, 2 P. & W. 465. The object of the statutory provision permitting the entry of judgments by justices of one county upon transcripts from the judgments of magistrates in another county, was to facilitate the collection of such judgments. There is no limitation upon the number of transcripts that may be taken, and they may be filed with “ any justice of the peace in any county where the defendant may inside or can be found.” The section under consideration is very similar to § 1, act of April 16, 1840, P. L. 410, relative to the transfer of judgments from the Court of Common Pleas of one county to that of another: King v. Nimick, 34 Pa. 298; Wilkinson v. Conrad, 10 W. N. 22. Pleas of Allegheny county had no power to strike off the judgment entered directly upon the transcript. “ A transcript from a justice’s docket is in very truth to be regarded as a judgment, a judgment already pronounced and brought into court for the specific purpose of lien and execution. But opening it, hearing the cause anew, compelling the plaintiff to prove his demand over again, and entering judgment against him if he fails, this is not treating it as a judgment, but as something widely differentLacock v. White, 19 Pa. 497. The remedy of the defendants was by appeal or by certiorari to the original judgment: Gehman v. Christ, 15 W. N. 171; Lacock v. White, supra.
123 Pa. 438Appeal of Wolff (1889)
1. Where land, the legal title to which is in a decedent’s estate, is claimed by a son, under a resulting trust alleged to arise from the purchase of the land by the decedent with money charged to the son as an advancement at a date prior to the purchase, to sustain the trust there must be proof that the purchase was made with the money furnished as an advancement when the charge thereof was made. A letter written by the years land, disclosing a promise and intention that the son should have the land, afterwards unfulfilled, is insufficient, in connection with the advancement charged as referred to, to support an express trust therein, in the absence of proof of an .actual advancement appropriated at the time to the purchase of the land: Beck v. Graybill, 28 Pa. G6, and Morey v. Herrick, 18 Pa. 12S, distinguished.
123 Pa. 452Bacon, Baldwin & Co. v. Jos. Horne & Co. (1889)
2 OF ALLEGHENY COUNTY. No. 189 October Term 1888, Sup. Ct.; court below, No. 62 July Term 1887, C. P. No. 2. On September 15, 1885, F. M. Bacon, and others, partners as Bacon, Baldwin & Co., entered.a suit in foreign attachment against Henry Schoenwald, a non-resident. The writ was returned, as served the same day upon Jos. Horne & Co., as garnishees, and nihil, as to defendant.
123 Pa. 457Thompson v. Reiber (1889)
.ERROR TO THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 199 October Term 1888, Sup. Ct.; court below, No. 495 April Term 1887, C. P. No. 2. To the first Monday of April, 1887, a summons was issued in an action by S. B. Thompson against G. L. Reiber. The narr declared for the recovery of a balance of $4,250 due to the plaintiff in the matter of a purchase and sale of oil for the defendant, on May 16, 1884. Issue.
123 Pa. 464Appeal of Murdy (1889)
FROM THE DECREE OE THE ORPHANS1 COURT OE ALLEGHENY COUNTY. No. 205 October Term 1888, Sup. Ct.; court below, No. 472 March Term 1888, O. C. On April 30, 1888, George Murdy and Mary A. Murdy presented their petition to the Orphans’ Court setting forth that Mary Hazlett had died on March 15, 1888, leaving to survive her no husband, brother or sister, father or mother, or any other kin capable of inheriting her estate ; that on March 16,1888, a certain paper writing, dated November 19, 1887, purporting to be the last will of said Mary Hazlett, and which in truth and in fact was her last will, duly executed by her in the presence of two subscribing witnesses, was presented to the register of wills to be admitted to probate; that on March 19,1888, James E. Hazlett, and others (nephews by marriage of said Mary Hazlett), alleging themselves to be beneficiaries under an alleged will of the deceased of prior date, to wit, July 16,1887, filed a caveat, and after hearing the testimony of the proponents and of the caveators, the register had entered a decree refusing to admit said testamentary paper of date November 19, 1887, to probate: praying leave to apppeal from said decree, and further that an issue be granted to determine: 1. Whether or not the said paper writing was duly executed by the said Mary Hazlett as and for her last will and testament. 2. Whether or not at the time of the execution of said paper, the said Mary Hazlett was of sound and disposing mind, memory and understanding, that is, possessed of testamentary capacity, and 8. Whether or not the execution of said paper writing was procured by fraud, and the exercise of undue and improper influence upon the part of your petitioners. To the citation issued upon the foregoing petition, the caveators made answer, and a hearing was had. The facts disclosed by the testimony submitted sufficiently appear in the decision of the court, Hawkins, P. J., filed on J uly 2, 1888, as follows: FINDING OF FACTS. The register having refused to admit to probate the paper propounded here as the last will of Mrs. Mary Hazlett, this appeal was taken and a demand for an issue devisavit vel non made. The material facts are these: In 1888 proceedings concerning the lunacy of Mrs. Hazlett were instituted with a view to the protection of her valuable property from improvident waste, and resulted in a finding of lunacy without lucid intervals. The estimated value of her property was $13,588.52. George Murdy was appointed committee, qualified, and entered upon the discharge of his duties. Mrs. Hazlett died on Thursday, March 15, 1888. Until within a few months of her death she seems to have been permitted to select her place of abode, and resided with different families successively. She had no known blood relatives. In July, 1887, with the permission of her committee, she visited certain relatives of her late husband, in whom she seems to have taken an interest, and while there she executed a will in which she made these relatives her principal beneficiaries. She complained to them of harsh treatment on the part of Murdy, her committee; expressed great fear of him since he had attempted suicide, and importuned them to have him removed from the trust. In accordance with her request, proceedings were instituted on July 21,1887, and the committee filed an account, to which exceptions were taken, and an auditor was appointed, before whom the matter is still pending. On October 22, 1887, Murdy, the committee, removed Mrs. Hazlett from the custody of her husband’s relatives, forcibly and against her protest, and took her to his own house, where she remained until the time of her death. After this enforced return to Murdy’s house, certainly as early as the middle of October, 1887, Murdy, the committee, solicited his attorney in the pending proceedings on his account, to go out to his house for the purpose of attending to some business for the lunatic, Mrs. Hazlett, and that solicitation was continued until Saturday, November 19, 1887, when Mr. Quaill went, and remained until Sunday evening. Sunday forenoon Mr. Quaill spent in conversation with Mrs. Hazlett, and in the afternoon a will was drawn by him and executed by Mrs. Hazlett in which Murdy and his family were made the principal beneficiaries. One of the witnesses to the fact of execution of the will was the brother-in-law of Murdy, and the other his laborer. Murdy himself seems to have been in the room twice for short periods during the day, but said nothing. On the day Mrs. Hazlett died, the two subscribing witnesses came to the register’s office with a view to probate, but on the advice of Murdy’s attorney they left and returned on the following day. Murdy had accompanied them part of the way on the first day. This will was in the possession of Mr. Quaill from the time of its execution until its offer to probate. Murdy denied that he knew the purport of the business for which Mr. Quaill’s sendees were desired by Mrs. Hazlett, or knew a will bad been executed, until after Mrs. Hazlett’s death; but the evidence shows beyond a reasonable doubt that he did know. A caveat having been filed to the admission of the will to probate, the proponents called upon the caveators for proof of interest. The will of July, under which the caveators claimed, was thereupon produced, and the testamentary capacity of testatrix at the date of its execution established. The proponents of the November will then examined the subscribing witnesses as to the fact of execution, and Mr. Quaill as to the testamentary capacity of testatrix on the day of execution, and also other witnesses as to her mental condition near that date. The register refused to admit this will to probate; whereupon the present appeal was taken and a demand for issue was made. At the hearing before this court the case was submitted on the testimony taken before the register. Counsel for appellant having contended that the testimony offered by the caveators in support of the will of July, raised a presumption of continued sanity, this court intimated that such was the ordinary rule, but that the decree of lunacy without lucid intervals had reversed the ordinary rule; and thereupon counsel asked that he be permitted to offer additional testimony as to testamentary capacity, which was granted. The testimony shows that at the date of the writing of November, 1887, Mrs. Hazlett had such knowledge of the objects and subjects of her bounty as persons of her advanced age ordinarily possess, but that she was very easily influenced by those who immediately surrounded her. The testimony also shows that the only persons to whom Mrs. Hazlett expressed a wish as to this alleged disposition of her estate were George Murdy, her committee, who, with his family, are the principal beneficiaries, and Mr. Quaill, his counsellor; and Mr. Quaill’s only opportunity of testing her capacity was in her committee’s house. The circumstances leading up to the day on which the paper was executed rest in the testimony of the committee alone. The court finds that proponent has not overcome the presumption of undue influence raised by the proceedings in. lunacy. OPINION. It may be conceded that, leaving out of consideration the element of trust relation which, existed as between the alleged testatrix and her- principal beneficiary, the evidence submitted would be sufficient to justify the grant of an issue devisavit vel non. But upon the whole case this court is of opinion and finds that the writing propounded as the last will of Mrs. Hazlett cannot be sustained, and an issue must therefore be refused. The reasons which have led to this conclusion are, briefly stated, these: 1. The alleged will is in contravention of public policy. Mrs. Hazlett had been adjudged a lunatic without lucid intervals by a court of competent jurisdiction, and that finding was still, in contemplation of law, in full force and virtue at the date of execution of this writing. Her committee, intrusted by the same jurisdiction with the custody and care of her person and estate, could not become her beneficiary, because, so far as he was concerned, it was inconsistent with his official relation to her. He was invested by authority of law with dominion over her person and estate, because she was incapable of intelligent action. Dominion in him was inconsistent with testamentary disposition by her. He could not divest himself of his office at will, much less pervert it to his personal profit. Any other theory than this must necessarily place the estate of this helpless class at the mercy of the committee. The policy of law is to throw every safeguard around the. administration of trusts, and by taking away the power prevent abuse. There is a class of cases in which it has been held that where one who stands in a confidential relation to a testator with impaired faculties at the time of making the will, receives a considerable benefit therein, a presumption of undue influence arises and the burden of proof is shifted on him to show that such benefit was the result of free and unbiased action on the part of testator: Culbertson’s App., 84 Pa. 303. This is a liberal extension of the power of testamentary disposition. But no court has gone so far as to hold that a will made by one judicially found to be a lunatic without lucid intervals, in favor of the committee in charge of his person and estate, can be sustained by any measure of proof, and thus practically set aside the finding without tbe intervention of tbe tribunal which made it. This ease does not come within the reason of the rule, but as already seen, comes within the prohibition of public policy. 2. But assume that the case does come within the rule of Culbertson’s Appeal, supra, and like cases, the evidence falls far short of overcoming the presumption of undue influence. There is no evidence, other than that of the committee himself, that Mrs. Hazlett, either before or after the day of execution of the writing propounded here as her will, expressed any intention or desire to make such a will or confer any benefit on the committee or his family. Although a person of admittedly weak mind, and easily influenced, there is no evidence that she consulted any disinterested person in reference to the matter. On the other hand, the evidence of her hostility to her committee and of her intention to give her estate to others, when she was not under his dominion, is strong and direct. Her expressions of friendship for and gratitude to her committee were confided to his counsel alone on the single occasion of the making of the alleged will, and these were made under circumstances which only tend to strengthen the presumption of undue influence. The frequent expressions by Mrs. Hazlett of fear of her committee, and the execution of a will in favor of her late husband’s relatives, who would naturally be the objects of her bounty, shortly before her forcible removal to her committee’s house; the execution of the writing now offered as her will after such forcible removal from the care of her husband’s relatives, while under the committee’s dominion and in his house : the committee’s persistent and successful efforts, pending exceptions to his account and proceedings for his removal from the trust, to induce his attorney in those proceedings to go out to his house to make her will; -and the committee’s denial of knowledge of the purposes of his attorney’s visit, are facts, which go to show directly undue influence. If under such circumstances a will can be sustained, no man’s property is safe from the wiles of designing men who have been invested with trusts. The issue must be refused and the appeal dismissed. The court having signed a formal order dismissing the appeal and refusing tbe issue as prayed for, the proponents took this appeal, and assigned the order as error. 1. Not only did the witnesses called by the proponents testify to mental capacity when the paper offered for probate was executed, but the caveators and those interested in the paper dated July 16, 1887, all testified to the mental capacity of the testator at that date. The law presumes mental capacity, and it also presumes the continuance of a condition once established. To consider the credibility and weigh the testimony of witnesses offered to overcome a presumption, is peculiarly the province of a jury, not of the court. Hence, when the execution of a testamentary paper is proved, it is error to refuse an issue, or withhold it from the jury on the ground that the evidence shows that the person by whom it was executed was incapable of understanding the nature of the act. This would be to decide as matter of law that which is purely a matter of fact: Rees v. Stillé, 38 Pa. 138. “ Strong as evidence against a prima facie ease may be, the evidence must be submitted to a jury: ” Mason v. Ammon, 117 Pa. 127. 2. From the testimony upon think there was not only sufficient evidence to entitle proponents to an issue, but that testamentaiy capacity was clearly established. The inquisition of lunacy found (at best but prima facie evidence of incapacity) produced to meet this evidence, was completely overcome by proponents’ evidence. And an inquisition of lunacy found it but prima facie evidence: Titlow v. Titlow, 54 Pa. 216 ;' Leekey v. Cunningham, 56 Pa. '370; Harden v. Hays, 9 Pa. 151; Gangwere’s Est., 14 Pa. 417 ; Hutchinson v. Sandt, 4 R. 234. Old age, failure of memory, or habitual drunkenness, will not per se constitute incapacity to make a will: Grubbs v. McDonald, 91 Pa. 236; Leekey v. Cunningham, 56 Pa. 370; Titlow v. Titlow, 54 Pa. 216; Dornick v. Reichenback, 10 S. & R. 84; Tenbrook v. Lee, 5 Clark 37; Horbach v. Denniston, 3 Pittsb. 49. As a general proposition, less capacity is sufficient to make a valid will than to transmit ordinary business : Thompson v. Kyner, 65 Pa. 368. 3. The burden upon ence, which, in order to avoid a will must be such as to destroy the free agency of the testatrix at the time the instrument was made and in the act of making it. Threats, violence, or any undue influence, long past, are not evidence to impeach a will: McMahon v. Iiyan, 20 Pa. 329; Thompson v. Kyner, 65 Pa. 379; Tawney v. Long, 76 Pa. 106 ; Frew v. Clarke, 80 Pa. 170 ; Wainwriglit’s App., 89 Pa. 220; Ketterer’s Est., 17 W. N. 15. 1. The testimony of the subscribing witnesses utterly failed to show that the testatrix was of sound mind when the alleged will was executed. It was their duty to fully satisfy themselves of that fact before they attested the execution. Attesting witnesses are regarded in the law as persons placed around the testator in order that no fraud may be practiced upon him in the execution of the will, and to judge of his capacity: 2 Greenl. Ev., § 691; 1 Jarman on Wills, 62; Dean v. Fuller, 40 Pa. 474; Buckminster v. Perry, 4 Mass. 594; Werstler v. Custer, 46 Pa. 502. In no place does the evidence of the proponents show that the deceased was of sound and disposing mind and memory on November 19, 1887. Why refer insufficient evidence to the jury? Dean v. Fuller, supra; Irish v. Smith, 8 S. & R. 581; Rambler v. Tryon, 7 S. & R. 90. 2. A finding of lunacy, with lucid intervals, casts the burden of showing sanity when the will was made, upon the proponents : Titlow v. Titlow, 54 Pa. 217; Harden v. Hays, 9 Pa. 152; Cuthbertson’s App., 97 Pa. 163; Boyd v. Boyd, 66 Pa. 283. Moreover, the relations existing between the proponents of the alleged will and the deceased, at the time the will was made, placed upon them the burden of doing more than showing the formal execution of the will in the presence of the two subscribing witnesses called for that purpose. They must go farther and by some sufficient evidence rebut the presumption arising out of that relation, that the disposition made was not the exercise of the free will of the testatrix: Boyd v. Boyd, 66 Pa. 294 ; Redfield on Wills, 529; Cuthbertson’s App., supra; Harden v. Hays, supra; Todd v. Grove, 33 Md. 183; Tyler v. Gardner, 35 N. Y. 559; Howell v. Robinson, 11 Barb. 564; Long v. Mulford, 17 Ohio (N. S.) 484 (93 Amor. D. 638); 2 White & Tudor, Lead. Cas. in Eq., 1193; Marsh v. Tyrrell, 2 Hagg. 186; Garvin v. Williams, 44 Mo. 465 (100 Amer. D. 314). 3. The overwhelming weight of the evidence is that Mrs. Hazlett despised Murd": that she was afraid of him: that she sought to escape from his pow. =. : all occasions, and that she so expressed herself to persons without number. Such facts are entitled to consideration: Irish v. Smith, 8 S. & R. 573; Norris v. Sheppard, 20 Pa. 475 ; Titlow v. Titlow, 54 Pa. 216, 231; Roberts v. Warwick, 13 Ala. 68; Gilbert v. Gilbert, 22 Ala. 529 (58 Amer. D. 268); O’Neale v. Murray, 4 Bradf. 311; Dietrick v. Dietrick, 5 S. & R. 207; Iddings v. Iddings, 7 S. & R. Ill; Neel v. Potter, 40 Pa. 483. Moreover, although Murdy denied in his testimony that he knew that the will of November 19,1887, was executed at his house, yet within an hour after Mrs. Hazlett’s death he hurried the subscribing witnesses to the register’s office to have the will proved, and her near friends and relatives learned of her death only by mere rumor. The cases of Crisbell v. DuBois, 4 Barb. 397; Delafield v. Parrish, 25 N. Y. 41; 2 White & T., Lead. Cas. in Eq., 1289; Swinburne on Wills, part 7, § 18, stamp such conduct as overwhelming evidence of undue influence.
123 Pa. 473Appeals of Fourth National Bank (1889)
FROM THE DECREE OE THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 210 October Term 1888, Sup. Ct.; court below, No 740 September Term 1884, C. P. No. 1. On May 31, 1887, the account of I. F. Brainard and Julius Voetter, assignees of Holmes, Lafferty & Co., for the benefit of creditors, was filed, showing a fund for distribution of $25,131.96, and on July 6, 1887, the account having been confirmed absolutely, Mr. W. S. Pier was appointed auditor to report a distribution of said balance to and among creditors. The auditor’s report was filed on February 1, 1888, when the facts upon which the contention arose appeared, to wit: On April 2, 1883, William Holmes, of the firm of Holmes, Lafferty & Co., live stock dealers, doing business in the city of Pittsburgh, executed a mortgage to the Penn Bank of Pittsburgh on certain real estate in said city belonging to him, individually, in the penal sum of $80,000, to secure the payment of certain promissory notes and renewals thereof made by Holmes, Lafferty & Co., William Holmes, W. J. Lafferty and S. M. Lafferty (the last three named persons being the individuals composing said firm), or indorsed by them, or either of them, and discounted by said Penn Bank and belonging to it, its successors and assigns. This mortgage was duly recorded on the day of its execution and the promissory notes hereinafter mentioned, seven in number, were notes or renewals thereof which were discounted by said bank for Holmes, Lafferty and Co., and were secured thereby. On May 26, 1884, the Penn Bank made a voluntary assignment for the benefit of its creditors to Henry Warner, at which time it had parted with all of said notes, and the same were then held as follows: Tbomas Hare, as agent for certain of the directors of tbe Penn Hank, held two of said notes which the bank had previously assigned to him, with a large number of other notes and securities, to secure said directors for a personal obligation into which they had entered for the benefit of the bank. One of these notes was dated May 21, 1884, at four months, for $10,000; the other was dated May 6, 1884, at four months for $5,000. The German National Bank of Pittsburgh held two of said notes; one dated March 8, 1884, at four months for $5,000; the other dated April 20, 1884, at four months for $10,000; both of which it acquired before maturity and for value. The American Exchange National Bank of New York held the remaining three of said notes; one dated February 15,1884, at four months for $5,000; one dated February 26, 1884, at four months for $10,000; and the other, dated April 5, 1884, at four months for $5,000; all of which had been assigned to it by the Penn Bank some time before its failure, along with a number of notes made by other parties, as collateral security for the indebtedness of the Penn Bank to the said American Exchange National Bank. All of the above notes bear the indorsement of the Penn Bank and were duly protested for non-payment. Some time in May, 1884, and shortly prior to the voluntary assignment of the Penn Bank, the Fourth National Bank of New York, being a creditor of the Penn Bank for over $24,000, issued a process of attachment out of the Supreme Court of the city of New York under the statutes of that state, to secure payment of its indebtedness, and attached in the hands of the said American Exchange National Bank, subject to the lien of said bank, the three notes above mentioned held by said bank as collateral security aforesaid, being notes made by Holmes, Lafferty & Co., and indorsed by William Holmes. In August, 1884, Holmes, Lafferty & Co., both as a firm and as individuals, executed deeds of voluntary assignment to Ira P. Brainard and Julius Voetter for the benefit of their creditors, and subsequently their said assignees made a public sale of the real estate covered by said mortgage, under an agreement with all parties interested that the lien secured thereby on said premises for the payment of said notes, should be transferred from the land to the proceeds of sale. After the commencement of said attachment of the Fourth National Bank, Heury Warner, assignee of the Penn Bank, intervened therein in opposition thereto, and the case is now pending in the New York Court of Appeals, on the question raised by said assignee whether under the statutes of that state the attachment is valid. It was agreed, however, before the auditor by the counsel representing the different parties in interest that the payment of whatever amount might be determined to be applicable to said notes out of the fund for distribution, should abide the final determination of said appeal and of the question between said assignee and the Fourth National Bank as to the ownership of said notes. The American Exchange National Bank, of New York, admitted through its counsel and by a written statement produced before the auditor, that it had' received payment in full of its indebtedness out of some other collaterals assigned to it by the Penn Bank, and therefore had no further claim on the notes which the Fourth National Bank had attached in its hands. The auditor reported his conclusions of law arising upon the foregoing facts, to wit: The questions that arise upon this distribution relate to the standing of the Fourth National Bank of New York, in its claim to participate in the fund. On the one side it is contended by the counsel for the claimant that, by virtue of the attachment proceedings, the notes assigned by the Penn Bank to the American Exchange National Bank were lawfully assigned to the claimant, by operation of law under the attachment, after the satisfaction of the indebtedness due the American Exchange National Bank, for which they were first pledged; and that it is entitled to participate in the distribution to the same extent that it would have been, had the notes been directly assigned by the Penn Bank to the claimant before maturity and before insolvency. On the other hand this position is controverted by the counsel for the creditors, who claim under the notes which they have offered in evidence, by virtue of bona fide assignment indorsement before maturity, and they contend that, 1. The claimant has no right to offer the notes in evidence heretofore pledged to the American Exchange National Bank, because under the laws of the commonwealth there can be no attachment of the evidences of indebtedness in the hands of the holder of such obligations, but that the attachment, in order to be valid, must be of the debt, and not the mere evidence of it, in the hands of the person owing it; and 2. That even though this attachment should be held to be a valid attachment, yet still the attaching creditor must stand in the shoes of the-defendant in the attachment, as to all other persons than the defendant; that is to say, in this attachment, wherein the notes pledged to the American Exchange National Bank were attached, the rights of the attaching creditor as against all other persons are the same as the rights of the Penn Bank, and, so far as the Penn Bank could maintain its claim to participate in this distribution, can the attaching creditor do so. [The auditor, as to the first objection, held that under the decisions of this state, citing Morgan v. Neville, 74 Pa. 52; Bolton v. Penn. Co., 88 Pa. 261, and Thornton v. Insurance Co., 31 Pa. 529, anything which is a part of the remedy is within the jurisdiction of the lex fori, and that the objection was therefore not well taken. The report then proceeded:] The counsel for the Fourth National Bank contends that the attachment, assuming it to be valid, was in effect an assignment of the attached notes to the attaching creditor, and for this proposition he cites Rushton v. Rowe, 64 Pa. 63, where it was said by Chief Justice THOMPSON, discussing the effect of the foreign attachment of a mortgage debt in the hands of the debtor, “ To make that available to the creditor, it must bo sued upon, and the law regards the attachment of it as an assignment to the attaching creditor.” But this seems to be a mere dictum, and was said by the court in determining whether or not the attaching creditor would have the right to issue a scire facias upon the mortgage to his use. Nor does the auditor think that it adjudges'that the attachment in this case would operate to assign the notes in question to the Fourth National Bank, or to put it in the same position as one who by agreement of the parties had received the notes as a pledge for the payment of indebtedness. But, although the auditor is of opinion that it is extremely doubtful, to say the least, whether the attaching creditor has anj' higher rights than the Penn Bank would have, yet other reasons render it unnecessary to pass upon this question, because, in the auditor’s opinion, they are of controlling importance in this case. If there were no attachments issued, and the notes had come back to their pledgor, the Penn Bank, or its assignee, still this fund would have to be distributed to the holders of all the notes which were secured by the mortgage pro rata, and notwithstanding the fact that, the Penn Bank was the indorser upon the paper held by the other preferred creditors of William Plolmes, the proceeds of whose property is here for distribution. The fact that there is a liability on the part of the Penn Bank to those creditors, creates no lien in those creditors upon this fund. The lien, which they have, arises from the mortgage of the property which has been sold. It was made by William Holmes. That the Penn Bank after-wards indorsed the paper gives them no other lien upon the property of William Holmes than they had before. Their lien in the first place was for the proportionate share of the property, in the ratio that the notes which they hold bore to the whole amount of the notes secured by the mortgage. That being the collateral security to which they were entitled by virtue of William Holmes’s mortgage, it is not increased or diminished by the indorsement of the Penn Bank; and if the Penn Bank were in possession of the notes which it pledged to the American Exchange National Bank, its assignee would now be entitled to participate in the fund for the benefit of the general creditors of the Penn Bank, just as any other holders of the secured paper. There is another reason which seems to the auditor to be of controlling weight in the determination of the right of the attaching creditor to participate in this distribution. The objection is made by creditors of the Penn Bank against the participation of another creditor of the same bank. Before the auditor would be justified in excluding such a creditor, contrary to the equitable maxim, which is a part of the common law of Pennsylvania, that “ Equality is equity,” the rights of the contesting creditors against the Penn Bank by virtue of its indorsements ought to be settled in some other proceeding ; and the auditor is of opinion that a mere claim of liability never adjudicated in any court is insufficient to give such creditors a standing here to contest the equal distribution of this fund among all the holders of the notes secured by the mortgage of the property out o£ which it arises. For these reasons the auditor is of the opinion that if the Court of Appeals of New York shall finally determine the attachment proceedings therein pending, and which are in evidence in this case, to be a valid attachment, then the Fourth National Bank of New York is entitled to participate in this fund in the proportion which the notes attached in the hands of the American Exchange National Bank bear to the whole amount of the notes secured by the mortgage in this case; and if it shall be decided otherwise by that court, then the assignee of the Penn Bank is entitled to take that portion of the fund instead of the Fourth National Bank of New York. The auditor then ascertained the balances due respectively upon the notes held by the German N. Bank of Allegheny, the notes attached by the Fourth N. Bank of New York, and the notes held by Thomas Hare, agent, and made a pro rata dividend to each, awarding to the notes attached by the Fourth N. Bank alternatively to H. Warner, assignee of the Penn Bank, or to the Fourth N. Bank as the attachment proceedings in the New York courts might finally be determined; and awarding further a portion of the fund applied to the notes held by Thomas Haro, agent, to Henry Warner, assignee, as reversionary owner thereof, after the obligations as security for which said Hare held them were paid. On notice of the report to counsel, exceptions were filed on the part of the German N. Bank and Thomas Hare, agent, that the auditor erred, in effect, to wit: 1. In the alternative distribution made to the notes attached by the Fourth N. Bank. 2. In not awarding payment in full to the notes held by the German N. Bank. B. In awarding any fund to the assignee of the Penn Bank. Said exceptions having been overruled by the master, were filed with his report, and renewed in court. After argument thereof, the court, Stowe, P. J., on July 7, 1888, filed the following opinion: I assume in this case that Henry Warner, the assignee of the Penn Bank, is the mere representative of the assignor, enjoying its rights only and bound where it is bound: Morris’s App., 88 Pa. 382; Wright v. Wigton, 84 Pa. 163, and cases there cited; and, therefore, standing in the shoes of the bank, with no equities arising from the fact that he holds the assigned estate for the benefit of creditors. If this position is correct, the claim presented by the assignee must be treated as though it now belongs to the Penn Bank, admittedly insolvent, without the intervention of an assignment for benefit of creditors. It is now well settled law in this state that when collateral security, such as a mortgage, is given to secure payment of several notes or bonds, some of which are assigned and some not, by the original obligor or creditors, and there is a deficiency for the payment of all the indebtedness thus secured, the amount recovered must be applied pro rata to all claims; those remaining in the hands of the original debtor taking their pro rata shares with those which have been assigned: Donley v. Hays, 17 S. & R. 400; Mohler’s App., 5 Pa. 418. In the latter case, however, Rogers, J., says: “ I grant that had the assignor guaranteed the payment of the money, the assignee would be entitled to a preference.” And in Hancock’s App., 34 Pa. 155, where the court held, per Woodward, J., that a guarantee is a mere personal contract which would not affect subsequent bona fide purchases, assignees for value, he also says: “Possibly had Donaldson, the assignor, retained the other bonds he, the assignee, might be supposed to have also as against him an equity to be first paid.” It seems to me that the German National Bank and Thomas Hare, agent, are entitled to have their claims paid in full out of the fund in court before anything can be applied to the claim of Henry Warner, the assignee. As this will consume the whole fund in court, it is unnecessary to consider whether the Fourth National Bank of New York or Henry Warner, the assignee of the Penn Bank, will eventually prove successful in the case pending in New York, as in no case, if our view of this case is correct, could either party have any of the money now in court. A final decree of distribution having been entered, awarding the whole of the fund, after payment of costs, to the notes held by the German N. Bank and Thomas Hare, agent, the Fourth N. Bank and Henry Warner took these appeals, specifying as errors the sustaining of said exceptions and the decree of distribution made. So far as regards the German N. Bank and Thomas Haro, agent, it matters not in the controversy in this court, whether the attached notes will go to the Fourth N. Bank or to H enry Warner, assignee. The only question here is, whether the notes themselves, without regard to their ownership, are entitled to a share of the fund for distribution, equally with the other notes secured by the Holmes mortgage. 1. Mohler’s App., 5 Pa. 420; Perry’s App., 22 Pa. 48; and Hancock’s App., 84 Pa. 156, all recognize the rule first laid down in Donley v. Hays, 17 S. & K. 400, and last recognized in Hodge’s App., 84 Pa. 359, that where a mortgage is given to secure a debt payable by instalments for which bonds are executed, and the fund arising from the sale of the mortgage falls short of the whole mortgage debt, the respective holders of the bonds are entitled to a pro rata dividend of the proceeds, according to the amount of their bonds; and that, too, without regard to the questions when the bonds are payable or who holds them, the rule being that even the mortgagee who has retained some of the bonds and assigned others, has the same right to participate in the fund as his assignees. The reason why this is so, is indicated in all the cases cited; but in Perry’s App., supra, which was a case of a mortgage debt split up into instalments, it is briefly expressed in the statement of Woodward, J., who delivered the opinion, that “ when instalment bonds are assigned, they pass, by relation, an equivalent portion of the mortgage debt.” 2. The learned judge of the court below, however, endeavored to distinguish the case at bar from the cases cited, on the strength of language quoted from Hancock’s App., 84 Pa. 156, and Mohler’s App., 5 Pa. 420. But we think it is a sufficient reply to say that not only was the language quoted from Hancock’s App., the mere expression of a doubt, and that from Mohler’s App., a mere dictum, but here there was no guaranty of any of the notes; and, so far as the Penn Bank incurred liability on the notes, all are alike in that respect, for the Penn Bank indorsed them all, and all were protested for non-payment. Moreover, the dictum on which the learned judge based his decision had reference to a controversy between a mortgagee holding some of the bonds secured by the mortgage, and other persons to whom he had assigned the remainder. Here, however, the Penn Bank, at the time of its assignment, held none of the notes secured by the Holmes mortgage, and the controversy is between rival creditors to whom they had been transferred, as to whom the maxim that equality is equity, should apply. 3. If there is a difference, so far as this question is concerned, whether the Fourth N. Bank or Henry Warner, assignee, shall eventually get the notes, it is in favor of the Fourth N. Bank, and arises by reason,of the title to the notes it acquired under the attachment; for in Rushton v. Rowe, 64 Pa. 63, this court held that an attachment of a mortgage debt operated as an assignment of the debt. And, while it is true that an attaching creditor stands in the shoes of the' defendant debtor, in one sense, this doctrine applies only as between the attaching creditor and the garnishee. Another proposition: The equity, if any exist, of the German N. Bank and Thomas Hare to have distribution prior to the Penn Bank, arises, when? Certainly when it appears by a sale of the mortgaged premises that the fund is insufficient to pay all. This occurred in the present case after title to the notes upon which we claim had vested in Henry Warner, in trust for the creditors of the Penn Bank. Under these circumstances the law will not inquire as to whether or not the holder holds for value. The assignee, in this matter, stands for the creditors. 1. It is undoubtedly the law of Pennsylvania that the assignee for the benefit of creditors, is simply a volunteer. He claims through the assignor, and his rights rise no higher. He takes just what the assignor could have taken, and has no equities that the assignor could not have claimed: Kent’s App., 8T Pa. 167; Morris’s App., 88 Pa. 368; Wright v. Wigton, 84 Pa. 163; Bullitt v. M. E. Church, 26 Pa. Ill; Roberts’ Eat., 2 Pa. 372; Twelves v. Williams, 3 Wh. 485; Vandyke v. Christ, 7 W. & S. 375. Henry Warner, assignee, therefore, in this case is the Penn Bank. And it is well settled also, as was said in Patten v. Wilson, 34 Pa. 299, that an attaching creditor stands exactly in the shoes of his debtor, and any equities that could be set up against the latter, are equally available against the former. And to the same effect is Strong v. Bass, 35 Pa. 333; Fessler v. Ellis, 40 Pa. 248; Dougherty v. Hunter, 54 Pa. 380. Assuming, therefore, that the attachment of the Fourth N. Bank is valid, in this proceeding it is also the Penn Bank, and, as against the other claimants, has no equities that the Penn. Bank does not have. It is true, as was said in Rushton v. Itowe, 64 Pa. 63, that the attachment of the debt due upon „a mortgage passes to the attaching creditor the right to collect the mortgage, but that is only because the attaching creditor steps into the shoes of his debtor, the mortgagee, and must collect from the garnishee through and on the terms of the mortgage by which the garnishee owes the debt to the debtor; but his attachment gives him no greater rights against the mortgagor than his debtor had. 2. Were all the notes held at the time of distribution by indorsees, their equities would unquestionably be equal, and they would all be entitled to the fund. Unquestionably, also, if the notes held by the German N. Bank and Thomas Hare, agent, had passed to them by mere delivery, and there was no liability on the part of the Penn Bank upon them, then all the notes would be entitled to share equally. But such is not this case. The Penh Bank by its indorsement assumed a liability upon the notes so held, and when it assigned its assets to Henry Warner it did so subject to the contract on the part of the bank to pay these notes, if the makers did not pay them; and when by its assignment it passed to Henry Warner its interest in the Holmes mortgage, it did so subject to its engagements and liabilities, whatever they were, upon the notes indorsed over to the German N. Bank and Thomas Hare. 3. If, therefore, the question is practically one between the indorsees of the notes and the Penn Bank, as to the distribution of a fund which will not pay all in full, is there any question that the Penn Bank will be compelled to wait until the German N. Bank and Thomas Hare, agent, have been paid ? The Penn Bank having indorsed the notes to the German N. Bank and Thomas Hare, agent, before maturity and for value, thereby became suretj' for their payment: Daniels on Neg. Inst., § 1303; Byles on Bills, 243*. “Where a surety or a person standing in the situation of a surety for the payment of a debt, receives a security for his indemnity and to discharge such indebtedness, the principal creditor is entitled, in equity, to the full benefit of that security : ” Kramer’s App., 37 Pa. 71. Holding the mortgage as a security for the payment of the notes in question, and being surety upon them and insolvent, the Penn Bank cannot receive any of the proceeds of the mortgaged land until the German N. Bank and Thomas Hare, agent, have been paid in full. This principle has been distinctly recognized in Worrall’s App., 41 Pa. 524, 532; Himes v. Baniitz, 8 W. 45; Erb’s App., 2 P. & W. 297.
123 Pa. 487Marland v. Pittsb. & L. E. R. (1889)
1 OF ALLEGHENY COUNTY. Nos. 213, 214 October Term 1888, Sup. Ct.; court below,f Nos. 631, 632 September Term 1887, C. P. No. 1. To the first Monday September, 1887, two actions in trespass! were brought against the Pittsburgh & Lake Erie Railroad Company, one by Alfred Marland, a minor, by his father and next friend, Henry Marland, and the other by the father, Henry Marland, in trespass to recover damages for personal injuries inflicted upon Alfred Marland. Issue.
123 Pa. 491Galey Bros. v. Kellerman (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OP ALLEGHENY COUNTY. No. 216 October Term 1888, Snp. Ct.; court below, No. 15 December Term 1886, C. P. No. 1. On September 9, 1886, a summons in covenant was issued in an action by Frederick Kellerman against John, Samuel, Robert and William Galey, doing busiuess as Galey Brothers. The paper books filed contained neither the declaration, the plea, the affidavits of claim and defence, nor the testimony; but a lease was printed in the appendix, dated December 28, 1885, between Frederick Kellerman, of Allegheny county, of the first part, and Galey Brothers, Rochester, Pa., of the second part whereby “ in consideration of the stipulations, rents and covenants hereinafter contained, on the part of the said parties of the second part, their,” etc., the party of the first part demised to the parties of the second part, for the sole and only purpose of drilling and operating wells, and storing, transporting and conveying petroleum oil or gas through, over and from it, a certain tract of land in Bridgwater borough, Beaver Co., containing three acres, more or less. The lease contained the following paragraphs: “ To have and to hold the said premises, for the said purpose only, unto the parties of the second part, their executors, administrators and assigns, for, during and until the full term of ten years next ensuing the day and year above written, on express condition that one well be completed each year during said term, at lessor’s option. * * * x x x x x “ Operations on the above described premises shall be commenced in 60 days and one well completed within three months therefrom, and in case of a failure to complete one well within such time, the said parties of the second part hereby agree to pay to party of the first part, for such delay, the sum of ton hundred dollars per annum, within three months after the time for completing such well, as above specified, payable at T. Mellon & Sons Bank; and the party of the first part hereby agrees to accept such sum as full consideration and payment for such yearly delay until one well shall be completed, and a failure to complete one well or to make any of such payments within such time and at such place as above mentioned, renders this lease null and void, and to remain without effect between the parties hereto.” $ iK- ÜC- It appeared on the argument in this court, that the times provided in the lease for the completing of a well, or for making the payment provided for, to wit: May 28,1886, and August 28, 1886, having fully expired without anything done by the lessees, the plaintiff made demand from the defendants and at T. Mellon & Sons Bank for the stipulated payment, which was refused, whereupon he brought this suit “ for the recovery of the penalty for delay jnentioned in the lease, or the proportionate amount thereof, for such length of time as he had been deprived of the exclusive right to his property thereby, viz.: eight months.” The court, Stowk, P. J., charged the jury as follows: Counsel for defendants asks the court to charge the jury: 1. That there can be no recovery in this case, because at the time of bringing this suit the contract or lease sued on was null and void, and not in existence; that the non-payment of the rent claimed in this case, instantly upon its non-payment and ipso facto, rendered the lease null and void. Answer: Refused. 2. The $1,000 payable under the lease in lieu of the completion of the first well, not being agreed upon as liquidated damages by the parties to the lease, there can be a recovery for only a proportion of it, to wit: that proportion of one year during which the part they had possession, bears to the whole year, or, in other words, one fourth of one thousand dollars. Answer: Refused. We instruct you as matter of law that the plaintiff is entitled to recover in this case five twelfths of one thousand dollars. The jury returned a verdict in favor of the plaintiff for §458.32. A rule for a new trial having been discharged, the defendants took this writ and assigned as error the instruction to the jury that the plaintiff was entitled to recover, as above given. If the plaintiff can compel the defendants to execute the lease in damages, it must be upon the theory that the lease is subsisting. But the contract of the parties expressly declares that it does not exist. The instant the breach takes place the contract is at an end; so completely at an end, that the courts have intimated that the subsequent payment and acceptance of rent will not revive the estate and that the statute of frauds would require a new writing. Any other interpretation would give the landlord both his rent and his land. It would allow the lessee to default in his covenant, and, if oil was afterwards discovered, to tender his past rent and demand back his estate under the lease. That the breach absolutely and ipso facto annuls the estate and cancels the contract, is expressly decided in Brown v. Vandergrift, 80 Pa. 142. From December 28, 1885, to August 28, 1886, a period of eight months, during which time it would have been impossible for plaintiff to declare a forfeiture, the defendants had the right to the exclusive possession of the premises demised, for the purpose of exploring for oil and gas. This right was not a mere license : Kitchen v. Smith, 101 Pa. 457. During that period of eight months, the defendants could discharge themselves from their covenants only by a surrender, a release, or an eviction: Breuckmann v. Twibill, 89 Pa. 58. Browh. v. Vandergrift, 80 Pa. 142, is against the defendants, for it recognizes an option in the lessor to refuse the tender of rent after default and to insist upon a forfeiture, and that equity abhors a forfeiture when it works a loss that is contrary to equity, not when it works equity and jrrotects a lessor against the laches of the lessee. This case is settled by Shettler v. Hartman, 1 Penny. 279.
123 Pa. 497Borough of Millvale v. Poxon (1889)
1 OR ALLEGHENY COUNTY. No. 224 October Term 1888, Sup. Ct.; court below, No. 192 December Term 1886, G. P. No. 1.
123 Pa. 503Appeal of Hammond (1889)
1 OF ALLEGHENY COUNTY. No. 229 October Term 1888, Sup. Ct.; court below, No. 407 June Term 1886, C. P. No. 1. On March 81, 1886, tbe McTighe Electric Light and Manufacturing Company, a corporation organized under the corporation act of April 29, 1874, made an assignment of all its property and estate to Walter S. Steel, for the benefit of creditors. The assignee converted the entire assigned estate into money, and on September 18, 1886, settled an account.
123 Pa. 508Harrison v. Commonwealth (1889)
Nos. 162, 163 October Term 1888, Sup. Ct.; court below, No. 244 June Term 1888, Q. S. On June 7, 1888, an information was made before an aider-man of Pittsburgh, charging James M. Harrison with haying unlawfully, wilfully and knowingly received into his -possession one lot of lightning rods, stolen from the Third Presbyterian Church, well knowing said lightning rods to have been stolen.
123 Pa. 516Niagara F. Ins. v. Fidelity Co. (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 230 October Term 1888, Sup. Ct.; court below, No. 648 September Term 1888, C. P. No. 1. On September 3, 1888, a summons in assumpsit issued in an action by the Fidelity Title and Trust'Co., of Pittsburgh, trustee, for the use of the Western University of Pennsylvania, against the Niagara Fire Insurance Co., of New York. The statement of the plaintiff, filed, set forth: That the defendant on April 14, 1887, issued to the plaintiff a certain policy of insurance in the sum of $4,625, insuring against loss or damage by fire or lightning until April 14,1888, tbe property held by the plaintiff as trustee of the estate of Joseph Patterson, deceased, at the corner of Penn avenue and Sixth steet; that on October 19,1887, the building covered by the policy was damaged by fire, which said damage was duly appraised and estimated at tbe sum of $1,750.99; that the total amount of insurance on said property at tbe time of said fire was $75,000, and that on November 29, 1887, tbe plaintiff had made out and delivered to tbe defendant proofs of loss, according to tbe terms and conditions of said policy, whereby tbe share of said loss due and payable by defendant company was apportioned at the sum $107.99, which proofs of loss and apportionment were duly accepted by defendant; that though tbe plaintiff had kept and performed, etc., tbe defendant bad neglected and refused to pay the said loss, etc. To tbe foregoing statement, by agreement of tbe parties, a copy of tbe policy was subsequently attached as part thereof, containing tbe following clause : “When this company shall claim that the fire was caused by an act or omission of any person, town or corporation, which created a cause of action, tbe party to whom tbe loss is payable-under this policy, shall, on receiving payment, assign to this, company such cause of action.” On October 18, 1888, the defendant company filed an affidavit of defence, the parts of which material to the case were as follows, to wit: “ That the fire which occasioned the loss sued for was the result of an explosion of natural gas in the building known as the Patterson Block, being that covered by the policy in this case, and said explosion was caused by the criminal negligence of the Peoples Natural Gas Company in attempting to make connection with its mains in Patterson alley, adjacent to said building, without using ordinary and reasonable precautions and shutting off the gas, which escaped in large quantities into the building covered by the policy sued on in this case, and there became ignited. “Said company did not either dispute the liability originally, nor the amount of the adjusted loss, but being advised and believing that its liability was simply to indemnify plaintiff against the damage done, in the nature of a surety, it had the right to be subrogated to plaintiff’s rights as against the Peoples Natural Gas Company and all other wrong-doers that caused the loss in this case, and therefore demanded of the plaintiff such subrogation and the right to use its name in an action against the same, and offered prior to suit brought and the settlement hereafter complained of, to pay plaintiff the full amount of said loss on being so subrogated as against said wrong-doers in order that it might pursue its lawful remedy against the same, but plaintiff declined to permit or grant such subrogation until after it had made the settlement hereinafter mentioned. “Affiants charge and expect to prove on the trial of this case that plaintiff not only refused to allow defendants to use its name as against said wrong-doers, and refused to grant said subrogation, but prior to the bringing of this suit actually settled, compromised and adjusted in full, all and any claim it may have had against said Peoples Natural Gas Company, the party whose wrongful and negligent acts caused the fire entailing the loss sued for in this case, all without the consent of the defendant and in spite of its previous demand for subrogation, a copy of which settlement is hereto attached as exhibit A, and made part of this affidavit.” Attached to the foregoing affidavit of defence, as exhibit A referred to therein, was an agreement under the corporate seals, dated December 30,1887, executed by the Fidelity Title and Trust Co., of the one part, and the Peoples Natural Gas Co., of the other part, setting forth that in consideration of $3,250 to be paid by the said gas company, the trust company released the gas company from “ all claims and demands of every kind, arising out of or occasioned by the explosion in the Patterson Block, on October 19,1887, including claims for loss or suspension of rent by tenants ” of the property. The agreement then provided for certain repairs to be made by the gas company and concluded: “ It is understood that the foregoing settlement and release do not affect the claim of said first party against insurance companies for loss occasioned by fire, and which claim said first party shall be entitled to receive in addition to and independently of the sum paid by second party.” On October 6, 1888, the plaintiff’s attorney entered a rule for judgment for want of a sufficient affidavit of defence, which rule on October 17th, was made absolute, the court, Stowe, P. J., filing no opinion. Judgment having been entered in favor of the plaintiff for $112.72, the defendant took this writ, assigning as error the order making absolute the said rule for judgment. 1. The defendant company was entitled to be subrogated to the plaintiff’s rights as against the wrong-doer, on offering to pay the full amount of the adjusted loss. “ The party to whom this loss is payable under this policy, shall, on receiving payment, assign to this company such cause of action.” This language presents a clear case of mutual and dependent stipulations, to be performed concurrently: Adams v. Williams, 2 W. & S. 227; Keeler & Co. v. Schmertz, 46 Pa. 139. Kyner v. Kyner, 6 W. 227, and Forest Oil Co.’s App., 118 Pa. 138, are to be distinguished. In those eases, the claimants for subrogation were mere strangers and stood in no contract relation with the principals. 2. The plaintiff cannot recover on the contract of insurance, after having made the settlement, a copy of which is attached to the affidavit of defence. The defendant company conld not. afterward pay this loss without ratifying the settlement and thereby waiving all claim against the gas company; such payment would have been voluntary: Conn. F. Ins. Co. v. Railway Co., 73 N. Y. 399 (29 Amer. R. 171). Moreover, the insurance company stands in relation to the plaintiff, simply as a surety, and any act on the part of a creditor by which the surety is deprived of a security which he might have looked to for his indemnity, operates as a discharge of the surety: Hutchinson v. Woodwell, 107 Pa. 509; Boschert v. Brown, 72 Pa. 372; Clippinger v. Creps, 2 W. 45. 3. Further: It will not be disputed-that an action against the wrong-doer for the benefit of the insurance company, must be brought in the name of the assured, for the use of the company. And, while it has been decided in Montgomery v. Cook, 6 W. 238, followed by Hamilton v. Brown, 18 Pa. 89, that an assignee need show no right in himself, it being enough to show a right in the legal plaintiff, yet he must show a legal right in the legal plaintiff, for it is this right alone that can be enforced. In an action by the insurance company against the gas company, the latter would have the right in limine to demand the authority of the insurance company to use the name of the assured: Meyer v. Littell, 2 Pa. 177; Montgomery v. Cook, 6 W. 238; Hamilton v. Brown, 18 Pa. 89; Armstrong v. Lancaster City, 5 W. 68. But by this release, the plaintiff in the present case released the gas company from “ all claims and demands of every kind arising out of the explosion,” and still reserved the right to collect from the insurance company whatever might be the loss occasioned by fire. 1. It is admitted that the loss by fire covered by the policy has not been paid. Subrogation is a right arising in pure equity and benevolence, and depends, like other controversies in equity, on facts to develop its necessity, in order that justice may be done: Bispham’s Eq., 18. But until the creditor has been fully paid, substitution or subrogation cannot take place on any terms whatever: Kyner v. Kyner, 6 W. 227; Forest Oil Co.’s App., 118 Pa. 138; Allegheny N. Bank’s App., 19 W N. 78 ; Hoover v. Epler, 52 Pa. 522. To meet the legal difficulty of not having paid the debt, the defendant sets up a tender, but a tender that was coupled with a demand for subrogation. Any demand for a receipt, discharge, or assignment of the debt, renders the tender invalid: Forest Oil Co.’s App.,supra; Sandford v. Balkley, 30 Conn. 344; Perkins v. Beck, 4 Cranch 68; Richardson v. Boston Chem. Laboratory, 9 Met. 42. 2. The release provides a discharge to the gas company from all claims and demands arising out of or occasioned by the explosion. But at the close of the paper the generalty of the language is modified so that the release shall not affect the claim of the assured against insurance companies, “for loss occasioned by fire.” The settlement is therefore to be held as a settlement and discharge of the gas company, only for the injury occasioned by the explosion: Conn. Ins. Co. v. Railway Co., 78 N. Y. 399 (29 Amer. R. 171). Moreover, where a wrong-doer has paid the assured the damages, and the assured has been paid the insurance loss, also, the wrong-doer is liable to the insurer in a suit at law, and the release by the assured would be no defence: Hart v. Western R. Co., 13 Met. 99; Monmouth Ins. Co. v. Hutchinson, 21 N. J. Eq. 107; Grade v. New York Ins. Co., 8 Johns. 183; Swarthout v. Railroad Co., 49 Wis. 625.
123 Pa. 523Insurance Co. of N. A. v. Fidelity Co. (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 231 October Term 1888, Sup. Ct.; court below, No. 654 September Term 1888, C. P. No. 1. On September 3,1888, a summons issued in an action by the Fidelity Title and Trust Co., of Pittsburgh, trustee, for use of the Western University of Pennsylvania, against the Insurance Company of North America, of Philadelphia. The statement of the plaintiff, and the affidavit of defence of the defendant company, with the exhibit A attached to the latter as part thereof, were identical with the papers filed in the court below, in the case of Niagara F. Ins. Co. v. Fidelity T. & T. Co., ante p. 516, except that, in this case, the loss by fire apportioned to the defendant company was $175.13, and further, that the policy a copy of which was attached to the plaintiff’s statement did not contain the mutual covenant that the assured on receiving payment should assign to the insurers the cause of action against the wrong-doer, which was contained in the policy sued upon in the former case, ante p. 517. On October 6, 1888, the plaintiff’s attorney entered a rulé for judgment for want of a sufficient affidavit of defence, which rule on October 17th was made absolute, the court, Stowe, P. J., filing no opinion. Judgment having been entered in favor of the plaintiff for $182.80, the defendant took this writ, assigning as error the order making absolute the said rule for judgment. 1. “ When two persons are equally liable to the creditor, if as between themselves there is a superior obligation resting on one to pay the debt, the other after paying it may use the creditor’s security to obtain reimbursement. The doctrine of subrogation does not depend on privity, nor is it confined to cases of strict suretyship. It is the mode which equity adopts to compel the ultimate discharge of the debt by him who in good conscience ought to pay it, and relieve him whom none but the creditor could ask to pay: ” Bender v. George, 92 Pa. 39; Kramer’s App., 37 Pa. 71; Bispham’s Eq., 18. “Where the property insured is destroyed by the negligence of a third person, so that the assured has a remedy against him therefor, the insurer by payment of the loss becomes subrogated to the rights of the assured to the extent of the sum paid on the policy: ” 2 Wood on Fire Ins., 2d ed., 1081. That the plaintiff could not recover on the contract of insurance after having made the settlement with the gas company, the counsel relied upon the points made and authorities cited in his argument in the preceding case. The counsel relied upon the points made and authorities cited in his argument in the preceding case.
123 Pa. 527Petition of Splane (1889)
FOB A MANDAMUS TO THE ORPHANS’ COUBT OF ALLEGHENY COUNTY. No. 000 October Term 1889, Sup. Ct. On December 7, 1888, the petition of Joseph P. Splane was presented to this court setting forth, in substance, to wit: That he was a member of the bar of Cambria county, duly admitted and in good and regular standing; that he was a member of the bar of the Supreme Court, also, in good and regular standing; that by virtue of the act of May 7, 1885, P. L. 16, and the amendatory act of May 19, 1887, P. L. 131, upon motion and the presentation of his certificate of admission to the Supreme Court and filing a certificate of the president judge of the courts of Cambria county, setting forth that he was of reputable professional standing and unobjectionable character, the petitioner was entitled to admission to any of the courts of this commonwealth, on motion. That upon motion and filing of such certificates, the petitioner had been admitted to practice law in the Courts of Common Pleas Nos. 1 and 2 of the county of Allegheny. That on November 21, A. D. 1888, the petitioner presented himself' in the Orphans’ Court of the county of Allegheny, state of Pennsylvania; the said court being then open and the president judge, Hon. W. G. Hawkins, Jr., and associate judge Hon. J. W. Over, being present, the following motion was made in writing: “ And now, to wit, November 21,1888, comes A. J Barton, an attorney in good standing at this bar, and moves the court that Joseph P. Splane be admitted to practice law in this court, in accordance with the act of assembly of the commonwealth of Pennsylvania, approved the 7th day of May, A. x>. 1885, entitled ‘ An act to further regulate the admission of attorneys and counsellors at law to practice in the several courts of this commonwealth,’ and the supplement thereto, approved the 19th day of May, A. d. 1887, amending the first section thereof ; and herewith presents a certificate of the prothonotary of the Supreme Court, for the western district of Pennsylvania, certifying that said Joseph P. Splane is an attorney of said court, and herewith asks leave to file a certificate of the honorable Robert L. Johnston, president judge of the courts of Cambria county, 47th judicial district of Pennsylvania, setting forth that the said Joseph P. Splane is a member of the bar of Cambria county, is of reputable professional standing and of unobjectionable character. A. J. Bauton.” That attached to and filed with said motion was the certificate of the president judge of the 47th judicial district of Pennsylvania, and authentification of his signature, a true and correct copy of which is attached hereto and made part of this petition. That a certificate of J. Bowman Sweitzer, Esq., prothonotary of the western district of your Honorable Court, was presented to the said Orphans’ Court of Allegheny county at the time said motion was made, a true and correct copy of which is hereto attached and made part of this petition. That the said court refused to admit your petitioner to practice law, and that by reason of said refusal your petitioner is deprived of his legal rights in the premises. Your petitioner therefore prays that a mandamus may be issued to the said W. G. Hawkins and J. W. Over, judges of the Orphans’ Court in and for the county of Allegheny, state of Pennsylvania, commanding them to admit the said Joseph P. Splane to practice law in said court, or that a rule on the said W. G. Hawkins and J. W. Over, judges aforesaid, may be granted to show cause why a mandamus should not be issued for the purposes aforesaid. And your petitioner will ever pray, etc. On the filing of the foregoing petition, a rule was granted to show cause why the writ of mandamus should not issue as prayed for; returnable to January 12,1889. On January 12, 1889, the rule having been served, William Gr. Hawkins, Jr., president, and J. W. Over, associate judge, of the separate Orphans’ Court of Allegheny county, filed an answer, admitting that the counsel for the petitioner, on November 21,1888, had moved in writing for the admission of the petitioner to the bar of the said court and that said motion had been by the said court refused, but averring that said action had been taken in certain proceedings instituted by the petitioner in said court to No. 284 September Term 1888, which being duly certified and returned, the respondents prayed to be taken as part of their answer; and that upon said proceedings the court had filed a decision which was as follows, to wit: Ex paute Joseph P. Splane. Hawkins, P. J. STATEMENT. The question involved in this proceeding is whether or not Joseph P. Splane is entitled to admission to the bar of this court and the material facts are these: On October 20, 1888, Mr. A. J. Barton presented a petition on behalf of Mr. Splane setting forth that said Splane was a member of the bar of Cambria county and of the Supreme Court of Pennsylvania, in good and regular standing; that certificates thereof were on file in the office of the prothonotary of Court of Common Pleas No. 1 of Allegheny county; that by virtue of the act of May 19, 1887, he was entitled to admission to the bar of this court upon presentation of said certificates; that the board of examiners of this court refused to move his admission, because admission under said act was' not within the scope of their duties; and that this court required all motions for admission to be made by a member of said board; and thereupon asking that a citation be awarded to said board to show cause why one of its members should not be designated to move such admission. Inquiry at the prothonotary’s office of Court of Common Pleas No. 1 of Allegheny county, on November 13, 1888, disclosed the fact that no such certificates as those referred to in said petition had been filed there; but on the same day Mr. Barton handed this court two certificates with no mark of filing thereon, as being those to which reference had been made. One of these shows Mr. Splaue’s admission to practice in the Supreme Court on October 8,1888; the other purports to have been signed by R. L. Johnston, president judge, 47th district, October 9, 1888, and represents that “Joseph P. Splane, a member of the Cambria county bar, is a gentleman of reputable professional standing and of unobjectionable character,” but it is not attested by the seal of that court, and does not show when Mr. Splane was admitted. The board of examiners, in their answers, say that in their opinion neither the act of 1887, nor their appointment, contemplated that motions for admission in cases like the present should be made by them. Mr. Schoyer, a member of the board, in a separate answer, said that in 1887 Mr. Splane had appeared before the board of examiners for examination for admission to this bar, and after examination had, the said board failed to find him sufficiently qualified for admission to the bar; that, “ as he is advised and believes, said petitioner had submitted himself for examination on two previous occasions to a preceding committee and on both occasions failed to pass the examinations to which he was subjected;” and that “subsequently said petitioner procured admission to the Cambria county bar, and upon that certificate applied to respondents to move his admission to the bar of this court.” There is no allegation that petitioner has ever been a resident of Cambria county; there is not even an allegation that he is a citizen of the state of Pennsylvania. At the hearing upon the return of the citation this court suggested that as Mr. Splane had first submitted himself to the jurisdiction of this court and failed to pass the examination prescribed by its rules for admission here, he should at least file a declaration of good faith toward this court in seeking admission to the courts of Cambria county, and not for the purpose of evading the rules prescribed for admission by this court. This Mr. Barton, who represented Mr. Splane, declined to file, but insisted that Mr. Splane was entitled to admission under the act of 1887. There was no allegation that the examinations to which Mr. Splane had been subjected here were unreasonable or unfair; nor that he had been admitted to the Supreme Court, or the Cambria county courts, upon examination as to his qualification or merits. OPINION. The act of 1887 provides that any attorney and counsellor at law who shall have been duly admitted to practice in any Court of Common Pleas and in the Supreme Court of this commonwealth shall be admitted to practice in any other court of this commonwealth upon motion simply, by exhibiting to the court (1) a certificate of admission to the Supreme Court and (2) filing a certificate of the presiding judge of the county or district from which he came, setting forth that he is of reputable professional standing and unobjectionable character. This petitioner has complied with the first of these conditions, but has he with the second ? This court is of the opinion that he has not. The alleged certificate has not the seal of Cambria county court affixed, has not been proved, and may or may not be genuine. But assuming it to be genuine, it is substantially defective in that it does not, as prescribed by the act of 1887, set forth the county or district from which petitioner comes. The act evidently contemplated that the certificate should be made by the presiding judge of the county or district in which the attorney or counsellor at law last had his office and his chief place of practice. An attorney may be a member of a dozen or more bars, but he can only be said to come from that in which he is a resident practitioner. It would never occur to an attorney of reputable professional standing and unobjectionable character to apply for a certificate elsewhere. There is to be found the best evidence of professional standing and character, because there he is best known. If this be not the meaning of the act, then no matter how disreputable in professional standing or objectionable in character an attorney may be in the county in which he is known, he may make the certificates of presiding judges, in counties in which he is not known, the instruments of extending his evil influence indefinitely. The legislature caDnot be supposed to have contemplated such a result. The act was intended to be remedial. Its manifest purpose was to give attorneys who, in good faith, come from the county in which their office and chief place of practice had last been, with certificates in proper form from the presiding judge of that county, and from the Supreme Court, a right of admission to any other court of the state. Is Cambria the county or district from which this petitioner comes ? The certificate sets forth that he is a member of the bar of that county; but is silent as to whether or not he ever practiced or resided there. An inference cannot be drawn from the fact of his being a member of that bar, that he ever practiced there ; for an attorney may be a member of a dozen different county courts, and have as many certificates substantially the same as this, at the same time, and may never have had in fact an office, or been a resident practitioner, in more than one of such counties. The certificate produced does not, therefore, purport on its face to be that of the presiding judge of the county or district from which petitioner comes, and he has not complied with one of the conditions of admission prescribed by the act of 1887. Assuming that this defect may be supplied by evidence aliunde the certificate, there is not an averment in the record that petitioner ever had an office, or resided, in Cambria county; nor, indeed, that he is even a citizen of Pennsylvania. If there is ground for an inference, it is that Allegheny is “ the county or district from which he comes, ” and the record shows that he is not “ sufficiently qualified ” for admission to its bar. The petitioner has therefore failed to make out any right of admission upon the purely technical ground selected by himself. The record does not make out a meritorious case. The rules; prescribed by the courts of this county for the admission of attorneys were adopted by the concurrent action of all the judges, with a view to the needs of the profession, and have been amply justified by results. The board of examiners has-always been composed of members selected with reference to-their peculiar fitness, from attorneys in active practice at this, bar. The petitioner voluntarily submitted himself for examination under these rules, by this board ; if he had any cause of complaint as to the mode of examination, his proper remedy was by an appeal to this court. No fault was found; and it must-be taken as a fact that in 1887, and prior thereto, he was not. sufficiently qualified to practice in this or any other court of the state. There is no evidence and no averment that since that time he has supplied this deficiency by study. No presumption can be based on the certificates exhibited, that he was admitted either to the Supreme Court or that of Cambria county, upon examination. It is well known that it has not been the custom in the Supreme Court to admit upon examination as to qualifications, but upon certificates of admission in other courts; and the probabilities are just as strong that the admission to the Cambria county bar was made upon certificate, as that it was made upon examination. In view of his repeated failure to pass examinations here, the burden was plainly upon him to show' that he had since supplied the deficiency, and this he has not done. The case has a moral aspect, too, which it is important to notice. It has been seen that this petitioner voluntarily submitted himself for examination, with a view to admission to this bar and failed to' pass. It is a just inference from the record that in his subsequent course his purpose was to secure admission to this bar in defiance and disregard of the rules of ibis court, although he had submitted himself to its jurisdiction and found no fault with its rules or his examination, and failed to show the necessary qualifications for admission. It cannot be supposed for a moment that either the Supreme Court, or the Cambria county court, would have admitted him had they been informed of the facts. In Ex parte Brown, 2 Pittsb. 152, an attorney who had obtained his admission by just such conduct was stricken from the roll, and the decree there made was afterward affirmed by the Supreme Court. It is essential to the just administration of the law that members of the bar should be men of reputable professional standing and unobjectionable character. It cannot be expected that those who obtain admission by breach of faith or subterfuge will ever attain this standard. It will be seen that this petitioner is not entitled to admission to this court either on technical or on meritorious ground. It is proper to add, in view of the position taken by the board of examiners, that their appointment contemplates that all motions for admission to the bar of this court, whether on examination or certificate, should be made by a member of the board; and the present case strikingly illustrates the wisdom of this construction. And now, to wit: November 17, A. i). 1888, this matter came on to be heard upon petition and answer, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed that the application of Joseph P. Splane for admission to the bar of this court, be refused and petition dismissed, for the reasons set forth in the opinion filed herewith, at his costs. The answer further set forth that after the foregoing proceedings were terminated by the order of November 17, 1888, to wit, on November 21, 1888, the counsel for petitioner made the motion in writing as printed in his petition presented in this court, which motion was denied in the following order: “And now, to wit: November 22, 1888, the within motion having been made in open court, and duly considered, is refused for the reasons (other than the want of authentication of Judge Johnston’s certificate) contained in the statement of facts and opinion filed in this matter, No. 284 September Term 1888. Pee Curiam.” The respondents, so showing, prayed that the said rule to show cause, etc., might be discharged at the costs of the petitioner. 1. It surely cannot be presumed that the certificates filed in the court below, were granted without full knowledge of the truth of the statements contained in them. The character and standing of the judiciary of the commonwealth will forever render it impossible for an attorney “ disreputable in professional standing or objectionable in character,” to be able to “ make the certificates of presiding judges of counties in which he is not known, the instruments of extending his evil influence indefinitely.” All that is stated in the answer filed, in regard to that position, is mere assumption, without a single averment in support thereof. 2. There is not a single allegation charging fraud or deceit on part of the petitioner, in the answer of respondents. “ Where fraud is relied on, as the ground of judicial action, it must be distinctly averred: ” Kensington, etc., Turnpike Co., 97 Pa. 260; Angler v. Agnew, 98 Pa. 587. “ Fraud must be affirmatively shown; it will not be presumed; the presumption of innocence must prevail: ” Shoemaker v. Kunlde, 5 W. 107; Lutton v. Hesson, 18 Pa. 109; Bear’s Est., 60 Pa. 430; Commonwealth v. Railroad Co., 74 Pa. 94. 1. The act of 1887, applies to the cases of Pennsylvania lawyers, not those from other states, coming on certificates from foreign courts, and who have no rights as such except by comity. The condition precedent for admission on motion, among others, is, that the applicant for the benefit of the act must have been duly admitted to the bar of the Supreme Court. This due admission is governed by Rule VI., and the proviso to the rule is effective as to all applicants who commenced the study of the law after they had attained the age of twenty-one years. Now, the papers on file in the matter of the petitioner’s admission to this court, show that he was admitted to Cambria county Common Pleas on June 11,1888, and that his admission to this court, on October 8,1888, was based upon his admission to the Supreme Court of New York, in pursuance of Rule VII. of this court. Therefore, the petitioner is not within the provisions of the act of 1887. ■' 2. The exercise of the power conferred upon the judges of the several courts of record, by § 68, act of April 14, 1834, P. L. 354, to admit a competent number of persons of an honest disposition and learned in the law, to practice as attorneys in their several courts, was held in Brackenridge’s Case, 1 S. & R. 187, to be a judicial and not a ministerial act; and, in that ease, a mandamus was refused, not merely because of that fact, but also because, while the Supreme Court had the power to issue a writ of mandamus to the judges of an inferior court, the court below was not an inferior court, but a subordinate court, and therefore this court did not have the power to issue the writ prayed for. But in McLaughlin’s Case, 5 W. & S. 272, this court held that a mandamus should not issue, on the sole ground that the act of admission, under the act of 1834, was a judicial and not a ministerial act. The other ground of refusal given in Brackenridge’s Case was no longer good, because the act of 1836 conferred the power to issue writs of mandamus generally, omitting the word, inferior. 3. The act of 1887 has modified the act of 1834, to the extent of the free admission of members of the bar in good standing and unobjectionable character, duly certified to by the presiding judge of the county whence they come — their home county, being also members of the bar of the Supreme Court,— to any other court in the commonwealth, upon motion. The modification can have no greater extent, for the giving of the certificate implies knowledge by the presiding judge, as judge, of the matters contained in it. The certificate can only be a safeguard, when coming from a judge who has had opportunities of knowing the standing and character of the applicant. Moreover, confessedly, the petitioner was found unqualified in Allegheny county. And the petition afterwards filed by him in the Orphans’ Court, failed to show to the court that he had been thrice rejected in his examinations before the examining board of that court, a suppression which lacked the element of good faith. For a similar suppression in O’Grady’s Case, 4 W. N. 199, the admission of O’Grady was stricken from the record, and the counsel who moved his admission was afterwards suspended for one year: Deringer’s Case, 4 W. N. 200.
123 Pa. 541Petition of Newlin (1889)
¡’Olí A MANDAMUS TO THE COURT OR COMMON PLEAS OR INDIANA COUNTY. No. 000 October Term 1889, Sup. Ct. In November, 1888, the petition of Mr. James W. M. Newlin was presented to a justice of tliis court, representing: That be bad brought suit against the county of Indiana for tbe sum of $2,000, due him for professional services rendered to said county and which, or any part thereof, tbe said, county bad declined to pay; tbat on April 16, 1888, he presented through his counsel a petition to the Court of Common Pleas of Indiana county, in which he bad averred, inter alia, as follows : “ Tbat the above action is brought by bim against the county of Indiana to recover the sum of $2,000, which the county agreed to pay him for professional services rendered by him to the county, and which obligation the commissioners of said county have repudiated. “Petitioner further avers tbat a large number'of inhabitants of the county of Indiana, in which the cause is now pending, to wit: all tbe taxpayers therein, have an interest in tbe question involved in this cause, adverse to the petitioner, and petitioner further says that he believes he cannot have a fair and impartial trial of his cause in the county of Indiana. Petitioner therefore prays your honorable court for a change of venue herein.” Your petitioner further avers that afterwards, upon May 11, 1888, the Honorable Harry White, judge of the said court, announced orally that he refused to make an order changing the venue, but filed no written opinion; that subsequently petitioner’s counsel on several occasions requested judge White to file an opinion, which he has not done, but he has stated that the reason he refused to make the order was that in his own opinion a fair trial could be had in Indiana county. Your petitioner further says that his application for a change of venue is not intended for delay, and that it is not true that a fair trial of his cause can be had in Indiana county; that after petitioner had rendered the professional services, for which the said commissioners had agreed to pay a compensation which would have equaled $2,000, they had recourse to various subterfuges for the purpose of making a delay in the payment of said fee, which practices were continued as long as possible and finally they declined to pay anything at all; that the objection of the commissioners of Indiana county was not made in good faith, but because they thought from its size the fee would make them unpopular to pay it; thereby the matter became one of public discussion, and persons not familiar with the fact and erroneously supposing that the commissioners of Indiana county were acting in good faith, were led to suppose that the amount claimed by the plaintiff was excessive. Your petitioner further says that under § 1, act of March 80,1875, P. L. 35, the court has no discretion and must order a change of venue, if the court shall be “satisfied of the truth of the facts alleged; ” that this provision only requires the court in the present case to be satisfied that the applicant comes within the causes set forth in paragraph Fourth or Fifth of the said section. That the applicant comes within the terms of paragraph Fourth is partly a matter of record, the defendant being the county of Indiana; and the rest of the requirement of that paragraph is fulfilled in the way pointed out by the act, to wit, the oath of the applicant. That the applicant also comes within the terms of paragraph Fifth of the said act, is shown in the way pointed out by the act, to wit, by the applicant’s own oath. The provisions of § 2 of said act do not make it necessary that the court should be of tbe opinion that a fair trial could not be bad, but tlie court is to be satisfied of these two facts only: (1) That the parties occupied towards each other the relative positions mentioned in the act; (2) that the applicant believes for these reasons that a fair trial cannot be had in the county. Your petitioner further says that, on the other hand, in the cases set forth in § 3 of the act the court is given discretionary power to order a change of venue or not, and the further provision of the act emphasizes the distinction between the mandatory provisions of § 1, and tbe permissive provisions of § 3, by expressly providing that the court “ may refuse or award such change of venue as in its discretion it shall see fit;” that this fundamental distinction was ignored by the learned judge of the Court of Common Pleas, and the application made by your petitioner under the mandatory provisions of § 1 of the act, was treated as if it had been an application under tbe permissive provisions of § 3 of tbe act. Your petitioner further sbowetb that in the petition he filed in the Court of Common Pleas of Indiana county he brought himself within the exact words of said § 1 of said act; that the Court of Common Pleas had no discretionary power, and that it was and is the duty of said Judge White to make an order changing the venue of said cause; he therefore prays this honorable court to issue a writ of mandamus to be directed to tbe said Honorable Harry White, commanding him, etc. And petitioner will, etc.
123 Pa. 545Wall v. Wall (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY-COUNTY. No. 91 October Term 1888, Sup. Ct.; court below, No. 250 June Term 1887, C. P. No. 1. On April 23, 1887, an ejectment was brought by Isaac Wall against Uriah. Wall, to recover a tract of land containing 29 aeres and 135 perches, in Forward township. Issue. At the trial on March 27, 1888, the facts material to this issue were shown to be as follows: A tract, of which the land in dispute was a part, was owned by Isaac Wall, Sr., who died on December 24, 1834, leaving to survive him two sons, John Wall and Maxwell Wall, and three daughters, Rebecca, Margaret and Araminta Wall, and on January 17, 1835, a testamentary paper, hereinafter quoted, dated December 24, 1834, was admitted to probate as the last will and testament of the deceased. After the death of his father, John Wall, the elder son, went into possession of the land in dispute and continued therein, as was claimed, until his death on May 18, 1869. Upon the death of John Wall, his son, Uriah, the defendant in this suit, went into possession of the property and retained it thereafter, as was claimed, until the suit. Maxwell Wall died in 1877, leaving a son, Isaac Wall, who, denying that the character and incidents of the possession of John Wall and his son, Uriah Wall, were such as gave title, brought this action. The plaintiff, in the outset of his case in chief, made the following offer: Plaintiff’s counsel offer in evidence the will of Isaac Wall, the grandfather of the defendant, dated December 24, 1834, probated January 17,1835, recorded in will book 4, page 185, and in connection therewith, the record made by the register in will book 4, page 185, as follows: In the name of God, amen. I, Isaac Wall,- of Elizabeth township, Allegheny county and state of Pennsylvania, being weak of body, but of sound mind and judgment (blessed be God for His mercies) do make this, my last will and testament. First. I commend my soul to God, who gave it, and my body to my friends to be buried in a Christian manner; and as to such worldly goods as it hath pleased God to bestow upon me I do give and bequeath in the following manner, namely: I do give and bequeath to my loving son, Maxwell Wall, all my property and effects that I possess, both real and personal property, comprising the farm that I now reside upon (situated in the county and state aforesaid), with all the personal property. And further, that the aforesaid Maxwell Wall shall pay to my two daughters, Margaret Wall and Araminta Wall, one-third of all that is raised on the aforesaid farm yearly until the payments shall amount to the sum of four hundred dollars. And the aforesaid Maxwell Wall shall likewise pay to my son, John Wall, in one year from my decease, the sum of one hundred dollars. And I also appoint my brother, James Wall, and Joshua Wilson to be my executors of this my last will and testament. Allegheny county, Elizabeth township, Dec. 24, A. d. 1834. Witness present. John Ganders. Joshua Wilson. N. B. — The aforesaid Margaret and Araminta Wall shall have equal portions, viz.: Two hundred dollars each, and in case of the decease of either of these, the survivor shall receive the deceased’s portion. Allegheny county, ss. Be it remembered that on the 17th day of January, A. D. 1835, personally appeared before me, John M. Snowden, Register, &c., in and for said county, John Canders and Joshua Wilson, the two subscribing witnesses to the foregoing will, who were solemnly sworn and John Canders on his said oath declared that: On the 24th of December, 1834, he was called upon by the testator, Isaac Wall, to write his last will and testament; that the testator stated to him all the items contained in the foregoing will, except the legacy to John Wall; that deponent proceeded to take notes thereof, and Joshua Wilson, the other deponent, was requested to take from the testator the remainder of his will and report the same to deponent to be noted; that Wilson did so and reported to deponent the legacy to John Wall and the appointment of executors, which were accordingly noted; that from these notes the foregoing will was drawn up, but that the deceased died before he signed and sealed the same; and further, that the deceased was at the time of so making his will of sound and disposing mind and memory, according to the best of deponent’s knowledge and belief. Joshua Wilson, on his said oath, says that on the 24th of December, A. D. 1834, he was requested to go to the bedside of the testator and hear the testator declare the particulars of Ms last will and testament and report the same to John Canders, who was then in the room taking notes thereof; that the deceased related to him all the particulars contained in the witMn will and particularly the legacy to his son John and the appointment of Ms executors; that deponent reported these particulars to Mr. Canders to be noted and that before the will was finally drawn up for his signature and seal the testator died; that the preceding instrument of writing contains all the particulars of his will as related to this deponent by the testator, and that, to the best of deponent’s knowledge and belief, the testator was at the time of making thereof of sound and disposing mind and memory. Given under my hand, the date aforesaid, John M. Snowden, Register. Be it remembered that on the 17th day of January, A. D. 1885 letters testamentary with the will annexed upon the estate of Isaac Wall, late of Elizabeth township, deceased, were granted to Joshua Wilson, one of the executors in said will named, who was solemnly sworn well and truly to administer the goods and chattels, rights and credits which were of the said deceased; to make a true inventory and appraisement of the personal property of the said deceased and return same into the register’s office within one month from this date; to settle the account of their administration within one year or when thereunto legally required, and to comply with the provisions of an act of assembly of this commonwealth entitled “ An act relating to collateral inheritances.” Given under my hand, the date aforesaid, John M. Snowden, Recorded January 17, 1835. Register. To the above offer defendant’s counsel objected: (1) Because the paper offered as the will of Isaac Wall is not signed. (2) Because it is not properly executed. (3) Because it is not a will. (4) Because it is incompetent; and, inasmuch as the record made by the register when the paper was offered for probate is made part of plaintiff’s offer, it is further objected to because the paper now offered as the will of Isaac Wall was not even reduced to writing during the lifetime of Isaac Wall. By the court: Objections overruled and offer admitted.1 At the close of the testimony, the court, Slagle, J., in the charge to the jury answered certain of the points presented by the defendant as follows, to wit: 1. The plaintiff, to recover, must recover on the strength of his own title, not on the weakness of his adversary’s. Answer: Affirmed. 2. Under the uncontradicted evidence, the only claim of title plaintiff makes to the land in controversy is through and under what is mentioned as the will of Isaac Wall, his grandfather. The unsigned paper offered as the will of Isaac Wall is not, however, under the uncontradicted evidence in this case, the will of Isaac Wall, and no will of Isaac Wall having been offered in evidence, plaintiff cannot recover and the verdict must be for the defendant.. Answer: Refused.8 3. The unsigned paper offered as the will of Isaac Wall, under the uncontradicted evidence in this case, is not the will of Isaac Wall, but is invalid and of no effect, and the admission, or so-called admission, to probate of such paper by the register does not make it a will. The register had no jurisdiction to admit to probate said paper as and for the will of Isaac Wall. Answer: Refused.3 4. So far as the testimony — uncontradicted testimony — in this case goes, Isaac Wall died intestate; plaintiff cannot recover and the verdict must be for the defendant. Answer: Refused.4 The jury returned a verdict for the plaintiff. Judgment having been entered, the defendant took this writ, assigning as error: 1. The admission of the plaintiff’s offer.1 2-4. The answers to the defendant’s points.8 t0 4 1. Under § 7, act of April 22, 1856, P. L. 533, the probate by the register of the proper county of any will devising real estate is conclusive as to realty, after five years have passed without contest; but it is scarcely necessary to say that under the wills act of April 8, 1833, § 6, P. L. 249, there can be no such thing as a will devising land unless it have been reduced to writing in the lifetime of the person proposing to make the devise. Much more than this must be shown, to meet the requirements of the section: Aurand v. Wilt, 9 Pa. 54; but the existence of the writing in the lifetime of the alleged testator' is of vital importance. Was there any probate of the alleged will of Isaac Wall, Sr.? It is, indeed, said in Holliday v. Ward, 19 Pa. 490, that it is not usual to enter a formal decree of probate on the record, and that it will or may be presumed. But it is worthy of special remark that it does not appear in that case that the existence of a decree of probate was questioned. Here the fact was and is expressly challenged. Is this case, then, fairly within the act of 1856 ? The purpose of that act was to quiet titles, not to disturb them. 2. But if the record admitted imports a decree of probate, then its validity is denied as wholly unauthorized. All acts of ministers of justice without authority are a nullity: Case of the .Marshalsea, 10 Hep. 76; and want of jurisdiction, either as to the subject-matter or the person, or, in proceedings in rem, as to the thing, may always be shown in any tribunal in which the former judgment is relied upon: Thompson v. Whitman, 18 Wall. 457. Furthermore, when a court or an officer exercises a limited and special jurisdiction, all the facts necessary to support that jurisdiction, in any particular case, must appear of record, otherwise the proceedings are not merely voidable, but absolutely void: Camp v. Wood, 10 W. 118; Thatcher v. Powell, 6 Wheat. 119; Torrance °v. Torrance, 53 Pa. 505. And “ the proceedings in probate courts are not according to the course of the common law; their jurisdiction is special and limited: ” Smith v. Rice, 11 Mass. 507, 510; 3 Redf. on Wills 56, et seq.; Devlin v._ Commonwealth, 101 Pa. 273, 276; Griffith v. Frazier, 8 ¿ranch 9; Willard'v, Wales, 2 Mass. 120; Crosby v. Leavitt, 4 Allen 410; Holyoke v. Haskins, 5 Pick. 20. It is never too late to attack a judgment for want of jurisdiction: Fowler v. Eddy, 110 Pa. 117. 3. The case now before the court is not the case of a probate allowed on the testimony of an incompetent witness, or on insufficient evidence; and hence the decision in Holliday v. Ward, 19 Pa. 490, and other like cases has no application. It may be admitted that if a case should arise in which there was an entire absence of recorded or noted proof, after the lapse of five years from the date of probate it would perhaps be conclusively presumed that the register had acted upon due proof : Cochran v. Young, 104 Pa. 333; Broe v. Boyle, 108 Pa. 76. But the distinguishing feature of this case is, that the recorded and uncontradicted proof establishes conclusively that the instrument here is not the will of Isaac Wall, Sr.; that the paper did not exist in his lifetime, but was prepared after ho died. “ Probating does not create a will. It cannot make a will out of a writing which was not a will before : ” Bowlby v. Thunder, 105 Pa. 173, 179. 1. Was there a probate of the will of Isaac Wall, Sr.? We submit there was. The register could not have made the record in the will book, without probate of the will. Probate will be presumed from the issuing of letters testamentary, or perhaps from any other act of the register, which he would have no legal right to make in a case where proof of the will failed: Holliday v. Ward, 19 Pa. 490. This decision was rendered before the act of April 22,1856, P. L. 533, but it has never been overruled. After five years, without appeal from the probate of a will, the probate even if defective would be sufficient and conclusive: Kenyon v. Stewart, 44 Pa. 179. When the register admits an instrument to probate, he acts judicially, and even in the absence of recorded proof the probate is valid. After five years have elapsed, the register is conclusively presumed to have received the will and made the probate on sufficient and satisfactory evidence : Broe v. Boyle, 108 Pa. 76; Cochran v. Young, 104 Pa. 333. 2. The probate of the will was valid and within the power of the register: (a) Because the instrument lias all the requisites of a will, both in form and obvious purposes. A will may be in any form, if the obvious purpose is not to take effect until after the death of the testator: Frew v. Clarke, 80 Pá. 170. This will is in legal form lacking only the signature of the testator. (b) Because, the legality of the instrument depends upon the law at the time of its execution. Section 6, act of April 8, 1833, P. L. 249, was then in force, providing: “ Every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof,” etc. (e) Because it was the duty of the register to decide whether the instrument met the requirements of the act, and he did decide. So much weight is given to the decision of the register, that the validity of the will is inferred from the decision itself, not from the evidence on which that decision is based: McCay v. Clayton, 119 Pa. 133 ; Woodruff v. Taylor, 20 Yt. 65; Whicker v. Hume, 7 H. L. 124; Freeman on Judgments, 608. 3. It was therefore not error for the court below to admit the will of Isaac Wall, Sr., in evidence, with the record of probate; (a) Because the register’s judgment in favor of the will was a judicial act: Cochran v. Young, 104 Pa. 333; Broe v. Boyle, 108 Pa. 76; Holliday v. Ward, 19 Pa. 490; Wilson v. Gaston, 92 Pa. 207; McCort’s App., 98 Pa. 33. (5) The probate is evidence of the validity of the will; cases just cited and Kenyon v. Stewart, 44 Pa. 179. It is useless to repeat the many cases where the conclusiveness of the probate unappealed from for five years has been established. The act of 1856 has created a rule of evidence in accordance with which the court below acted, and in perfect accord as well with the decisions of this court since 1856, in admitting the will in evidence.
123 Pa. 555Clark v. Commonwealth (1889)
ERROR, ETC., TO COURT OE OYER AND TERMINER OF GREENE COUNTY. No. 191 October Term 1888, Sup. Ct.; court below No. 1 January Term 1888, O. and T. On September 27,°1887, John S. Lemley, sheriff of Greene county, made information before a justice of the peace charging that on September 10,1887, between 10 and 11 o’clock, on the public highway leading from McCann’s ferry to the Greensboro road, in Cumberland township, William McCausland, a drover of Allegheny city, was murdered and robbed of about one thousand dollars, and that he had cause to suspect and did suspect that George Clark, Frank Clark, Sr., Zach. Taylor and Maggie Clark did kill and murder said William McCausland. Upon a warrant issued on this information, the persons charged were at once arrested and lodged in the county prison. On December 30, 1887, George Clark presented his petition to iNGtiKAM, as the president judge of the court of Common Pleas, praying for a writ of habeas corpus, which was awarded the same day, returnable on January 6, 1888, at 10 A. M. On January 2, 1888, George Clark, Frank Clark, Sr., and Zach. Taylor were brought before the justice, waived a hearing and were committed. At the suggestion of the district attorney, Maggie Clark was discharged. The proceedings were then returned to the court. On January 6, 1888, the grand jury returned as a true bill an indictment charging George Clark, Frank Clark, Sr., and Zach. Taylor with the murder of William McCausland. The same day the hearing in the proceedings upon the writ of habeas corpus began before the Court of Common Pleas, and witnesses were examined. This hearing continued until on January 9th, an order was made admitting Frank Clark, Sr., to bail and remanding George Clark and Zach. Taylor to the custody of the sheriff. The cause in the Oyer and Terminer was then continued to the April Term. On April 3, 1888, the defendant George Clark moved for leave to plead as to himself to the indictment, and that he be tried alone upon the issue to be joined thereon. The motion was allowed, and the commonwealth elected to proceed first with the trial of George Clark, and trial was ordered. The defendant then moved to quash the indictment found, for the following reasons: 1. That John S. Lemley, the prosecutor in the case, is high sheriff of said county, and by virtue of his office is keeper of the key of the jury wheel, and assisted in drawing the jury for the present term of said court of Oyer and Terminer. 2. That the said John S. Lemley made the information against said defendant, and afterwards assisted in drawing the jury which it is expected will try him. 3. That while a writ of habeas corpus was pending and undetermined, asking for the discharge of said defendant from custody of the sheriff of Greene county, a true bill was found and returned by the grand jury of said county against said defendant, thus denying to him the rights guaranteed to him by the constitution of this commonwealth, under the writ of habeas corpus. By the court: The motion is overruled; exception.® The defendant then moved to quash the array of petit jurors for the April term, for the following reasons: 1. That John S. Lemley, the prosecutor in the case, is high sheriff of said county, and by virtue of his office is keeper of the key of the jury wheel, and assisted in drawing the jury for the present term of said court of Oyer & Terminer, making the drawing of said jury, and therefore the array, unlawful and irregular. 2. That the said John S. Lemley made the information against said defendant and afterwards assisted in drawing the jury for said term which it is expected will try him; which, in view of the fact that a large reward was offered for the apprehension and conviction of the murderers of William McCausland, and for other reasons, is irregular and unlawful. By the court: The motion is overruled; exception.11 The defendant being then formally arraigned, pleaded not guilty to the indictment and issue was joined. The commonwealth was represented by Mr. D. R. P. Huss, district attorney, Mr. John S. Robb, Mr. R. F. Downey and Mr. S. R. Huss; the defendant, by Mr. Charles E. Boyle, Mr. James E. Sayers and Mr. Thomas L. Lincoln. In the examination of the jurors as they were called to be impaneled, Solomon Riggle, sworn on his voir dire, said: To defendant’s counsel: That he had read an account of the coroner’s inquest in two or three of the newspapers, and had heard the subject discussed some by his neighbors; he had formed an opinion as to the guilt or innocence of defendant by reading the papers, but it was not a fixed opinion, and the evidence would change it, but it would take pretty strong evidence. The defendant challenged the juror for cause. By the commonwealth: Q. Mr. Higgle, what do yon mean by saying it would require strong evidence? A. Well, in reading the papers over once I formed an opinion. Q. And it would require strong evidence to change it? A. Yes, sir. Q. And you have an opinion now that it would take strong evidence to change ? A. Yes, sir. By the court: Q. Evidence you might hear would change that opinion ? A. Yes, sir. By the court: Challenge for cause overruled; exception.1 The defendant challenged peremptorily. W. T. White, sworn on his voir dire, said: To the commonwealth: That he had no conscientious scruples upon the subject of capital punishment in cases of this kind, premeditated murder. To defendant’s counsel: That he had read the report of the coroner’s inquest in the papers, and had formed a hxed opinion with regard to the guilt or innocence of the defendant. The defendant challenged for cause. To the commonwealth: That it was not such an opinion that it could not be removed by evidence, and if he were sworn as a juror he could render a verdict uninfluenced by that opinion. To defendant’s counsel: That the opinion he now held did not unduly influence his belief with regard to the guilt or innocence of defendant; it had been deliberately formed and was still entertained; that it would take strong evidence to remove that belief. By the commonwealth: Q. If what you read in the papers turns out to be not true ? A. Of course, that would change it. Q. Then your opinion is subject to the evidence? A. Yes, sir. By defendant: Q. Of course, that opinion is like every other opinion, subject to the evidence; you said' in a case like this you favored capital punishment? A. Yes, sir. Q. You assume this to be a case of that kind, do you? A. Yes, sir. By the court: Q. And you would make up your verdict from the evidence you would hear ? A. From what I road in the papers— Q. If you was sworn as a juror in this case could you and would you make up your verdict wholly from the evidence? A. Yes, sir. By tbe defendant: Q. What do you mean by taking some evidence to change your mind ? It would take some evidence to, change your mind and then you would make up your verdict ? A. Yes, sir. By the court: Q. Mr. White, just explain what you mean ? A. Where it is premeditated; where it is not committed under passion or drink. Q. Do we understand you to say you made up your mind that this is a case of that kind? A. Yes, sir. Q. Is it a fixed or is it a floating opinion that might be changed by evidence — merely what you read in the newspapers? A. Yes, sir. By the court: Challenge for cause overruled; exception.3 The defendant challenged peremptorily. Josiah South, sworn on his voir dire, said: . To defendant’s counsel: That he had read the newspaper accounts of the occurrence, and had talked about it with his neighbors; that from what he had read and heard he had formed hnd expressed a fixed and determined opinion, made after deliberation, and had heard nothing to change it. The defendant challenged for cause. To the commonwealth: That his opinion could be removed by evidence, and, if sworn as a juror, he could render an impartial verdict without being influenced by that opinion. By the court: Q. I understand you to say your opinion is fixed or determined with regard to the guilt or innocence of this defendant, or is it a mere floating opinion from what you have read and heard ? A. Mere impression from what I read and heard. Q. Mr. South, the question now they have asked you and you have answered, you have a fixed opinion with regard to the guilt or innocence of this defendant ? What is the answer to that now ? A. That is what I mean. Q. That is what you mean by your fixed opinion? A. Yes, sir; an impression from what I read and heard. Q. If sworn as a juror in this case, could you make up your verdict from the evidence without being influenced by that impression? ' A. Yes, sir. By defendant: Q. What do you mean'by saying, in answer to Mr. Sayers here, that you have a fixed and deliberate opinion? A. I certainly formed that after I read the, accounts. Q. A fixed and determined opinion ? A. Until I hear some-tiling further to contradict it. Q. And tben you would have to have such evidence as a juror as would remove a fixed and determined opinion before you would change your mind? A. I would have to have some truth of it. Q. And that kind of an opinion is a fixed and determined opinion ? A. Didn’t T tell your honor I did not understand it that way ? Q. You did not use the word at all until after the district attorney used it. A. Didn’t I? Q. Did you use the word at all until after the district attorney had used it? A. I don’t know. Q. And it would take some evidence to change your mind? A. Yes, sir. Q. You have made up your mind? A. So far as I have read and heard reports. By the court: Challenge for cause overruled; exception.3 The defendant challenged peremptorily. J. H. Dulaney sworn on his voir dire, said: To the commonwealth: That he had formed and expressed an opinion, etc., at the time of the occurrence, from newspaper reports and from rumor; he did not know that it was a fixed opinion, and it could be changed if the evidence was strong enough; that he could render an impartial verdict without being influenced by that opinion, if he would hear evidence sufficient; he believed he could render an impartial verdict upon the evidence uninfluenced by the opinion he had formed, if the evidence was strong enough. To defendant’s counsel: That the evidence would have to be strong to induce him to change his opinion; that he lived about five miles from the scene of the crime: Q. You say you still have an opinion on this subject? A. Yes, sir; I have an opinion. Q. When you would go into the jury box you would already have formed an opinion — you have an opinion now? A. Yes, sir. Q. And you will hold onto that until there is enough evidence to change your mind? A. Yes, sir. Defendant challenges for cause. By the court: Q. Do you say the opinion you have already formed is not a fixed opinion; merely a floating opinion or impression ? A. Yes, sir; from the reports. Q. Reports read and heard? A. Yes, sir. Q. The opinion you now have would not have any influence, if you were sworn as a juror, in making up your verdict in this case? A. I don’t think it would. Q. Tbe question is, whether it would or not; answer that by yes or no. A. No, sir; it would not have. Q. If you were sworn as a juror in this case you could give the defendant a fair trial and make up your verdict solely from the evidence you would hear from the witnesses ? A. Yes, sir. By the court: The challenge for cause overruled; exception.4 Counsel for the defendant excepts to the manner of examining the juror by the court, on the ground that the questions are leading and assume that the juror has made answers which the counsel for the defendant does not admit he has, as they think will appear from the stenographer’s notes ; and further, that the examination by the court, in their judgment, tends to compel the juror to make such answers as will qualify him for a juror rather than to confess he is not competent to try the case upon the evidence, if he were sworn as a juror, and in this way the defendant will be prejudiced by putting into the jury box jurors who declare they have opinions, that they would carry these opinions into the jury box, and would not change therS until sufficient evidence is produced before them to require them to change them. Exception sealed for defendant to the manner the court has examined the juror or any other jurors.5 The defendant challenged the juror peremptorily. A jury having been impanneled and sworn, the evidence adduced on the trial showed that about 10 :30 A. m. September 10, 1887, the deceased had been found with a pistol shot wound in the head and another in the right hand, lying in a ravine known as Cloud’s Hollow about one mile from the Monongahela river, and died a few minutes thereafter. He had left his home in Allegheny city to go into Greene county to buy cattle, with a large amount of money in his possession. On an examination of the ravine where he was found, his whip, pocket-knife, a half-smoked cigar, a burned match, and a soft felt hat were found in the vicinity. Two revolvers were also found; one a cheap thing, with five chambers containing three loaded cartridges and two empty shells, and “ J. T. C.” rudely cut upon the handle; the other was a fine Smith & Wesson, with chambers all containing loaded cartridges. This latter revolver was indentified as one owned by Mr. McCaus-, land. About thirty yards south oí the place where he lay, his two pocket-books were found, empty, and a number of papers. The facts shown by the testimony and claimed to connect the accused with the homicide, were circumstantial only. Among other witnesses called, John Parker, an old man 72 years of age, a carpenter, testified that while at a certain point near the scene of the homicide, his attention was attracted by the noise of cattle running in the woods, and looking up he saw two men, walking rapidly, pass an open space in the timber, one of whom he recognized as George Clark, and the other he “ took to be Zaeh. Taylor.” He saw them but a moment, at a measured distance of 244 yards; observed the kind of clothing Clark wore, saw that he carried a gun in his hands,— a shot-gun and not a rifle, and that he wore boots; the morning was dark, threatening rain, and the men were going towards the mouth of the creek. Smith, a surveyor, called by the commonwealth, after Mr. Parker, testified that Mr. Parker had pointed out to witness the place he said he had stood when he saw the two men coming down opposite, and had made an observation of the line of sight; this on March 23, 1888. Defendant’s counsel object. By the commonwealth: The purpose is to show bjr the witness that the line of vision from where Parker said he stood to the point whore he said he saw the two men, is not obstructed. Objected to: This observation having been made at a later day did not show the ground as it was then; did not show the leaves on the trees. By the court: They have a right to show whether there were any intervening objects, and if there were any intervening objects what they were. Objection overruled; exception.6 Q. State what the line of observation was at the time you made the survey from the points mentioned ? Defendant objects to the question. Q. I ask the witness to state if there were any obstructions in the line of observation at the point where Parker said he stood to the point where he said he saw the men coming down the hill. Defendant objects, that the evidence offered is irrelevant and incompetent; that the effect of the question is to prove, if anything, whether it is possible that the story told by Parker is true, and that the commonwealth cannot support the testimony of Parker before it is attacked, by showing that he possibly did tell the truth. By the court: Objection overruled; exception.7 The witness was no line of sight between the point where Parker said he had seen the two men and the point where he said he had stood at the time. The court, Inghram, P. J., in the charge to the jury, instructed as to the crime of murder at common law, the degrees thereof under the statute and proceeded: The case of the commonwealth rests upon what we call circumstantial evidence. And that kind of evidence has been ascertained by experience to be little, if any, less satisfactory than that which is known as direct or positive. Where a wilful, deliberate murder contemplated beforehand is committed, it seldom occurs that direct, positive evidence respecting it can be produced. As was said by Chief Justice GibsON in the case of the Commonwealth v. Harman, 4 Pa. 269: “ The only difference between positive and circumstantial evidence is, that the former is more immediate, and has fewer links in the chain of connection between the premises and conclusion; but there may be perjury in both. A man may as well swear falsely to an absolute knowledge of a fact, as to a number of facts, by which, if true, the question of guilt or innocence is solved. No human testimony is superior to doubt. The machinery of criminal justice, like every other production of man, is necessarily imperfect, but you are not therefore to stop its wheels. Innocent men have doubtless been convicted and executed on circumstantial evidence; but innocent men have sometimes been convicted and executed on.what is called positive proof. [All evidence is more or less circumstantial, the difference being only in the degree; and it is sufficient for the purpose when it excludes disbelief, that is actual disbelief; for he who is to pass on the question is not at liberty to disbelieve as a juror while he believes as a man.] 14 It is enough that his conscience is clear.” [The court then reviewed the testimony at length saying, inter alia:] It is claimed on the part of the commonwealth that some time in the spring of 1887, May or June, possibly, William McCausland, who was then a resident of Allegheny city, commenced doing business in Greene county. It is claimed that he was a stock dealer, he would come into this county, buy stock, ship it elsewhere, and return for more. It is claimed that in making his rounds he stopped a part of the time in the neighborhood of Carmichaels, on Little Whitely. It is claimed that the testimony shows that he bought stock and shipped it down the river. [It is claimed that it was well understood in that neighborhood the days or time when he shipped the stock and when he returned to the county to buy stock,] 13 that he usually shipped on Saturdays, and would, generally return to the county on Wednesdays following. vfc- •&* We have been requested on the part of the defendant to charge you: 1. If from all the circumstances surrounding a homicide there is any doubt about the killing being unlawful, that doubt should be given in favor of the person charged with the crime and he should be acquitted. Answer : That point is-correct and is affirmed. 2. To convict on circumstantial evidence each fact must be proved by the commonwealth by distinct, independent and competent testimony ; and each fact so proved should bo consistent with the other and with the main fact sought to be established, namely, the killing by the defendant, and the commonwealth failing in this the defendant should be acquitted. Answer : This is true and the point is correct and is affirmed. 8. The whole case of the commonwealth must exclude every reasonable and fair theory or explanation of defendant’s innocence before he can be found guilty upon circumstantial evidence. Answer: That point is correct and is affirmed. 4. Defendant need not prove an alibi beyond a reasonable doubt; it is sufficient if the testimony for the defendant raises a reasonable doubt in the mind of the jury, and if it does he should bo acquitted. Answer: That point is correct and is affirmed. 5. The burden of proof never shifts from the commonwealth, and each separate and in dependent fact must be proved beyond a reasonable doubt or the defendant should be acquitted. Answer: That point is correct and is affirmed. 6. The defendant is entitled to the benefit of every reasonable doubt in the mind of the jury. Answer: This point is correct and is affirmed, as we have already so instructed you. 7. The defendant is entitled to the benefit of any reasonable doubt existing in the mind of any one juror as to his guilt, and if there exists such a doubt he should be acquitted. •Answer: That point is correct and is affirmed. We have thus endeavored to explain to you the law and bring before you the evidence on both sides, and if we have omitted anything material you will recall it in your examination of the evidence. Allowing the prisoner the benefit of the presumption of innocence and of every rational doubt, if you should reach the conclusion that George Clark the defendant caused the death of William McCausland by the means and in the manner claimed by the commonwealth — that is, in the perpetration of or in an attempt to perpetrate a robbery, he would be guilty of murder in the first degree; but as we have already explained, it devolves upon you, as a jury, in ease of conviction, to ascertain in your verdict the degree of the crime. The case is now in your hands, take it and render such a verdict as will be just alike to the commonwealth and to the prisoner. On April 14, 1888, the jury came into court and said that they found the defendant, George Clark, guilty of murder in the first degree. Thereupon the defendant filed a motion for a new trial, and also a motion in arrest of judgment for the following reasons : 1. Because the indictment was found and returned by the grand jury pending the writ of habeas corpus for the discharge of the prisoner. 2. Because John S. Lemley, the prosecutor in the case, assisted in drawing the jury by which the defendant was tried, by drawing the names from the jury wheel. On September 3,1888, said motions having been argued, the court ordered that the rule granted for a new trial be discharged, and the motion in arrest of judgment be overruled and dismissed; exception.0 On the same day, the defendant moved for judgment upon the verdict. Sentence of execution was then passed. Thereupon the defendant took writs of error and certiorari, assigning as errors: A. The overruling of the motion to quash the indictment.3, B. The overruling of the motion to quash the array.6 C. The overruling of the motion in arrest of judgment.0 1-4. The overruling of defendant’s challenges for cause.1 *°4 5. The manner of examining jurors by the court.3 6, 7. The admission of the commonwealth’s offers.6 7 8-11. The inadequacy and insufficiency of the charge. 12. The omission to charge that the jury might convict the defendant of manslaughter. 13, 14. The parts of the charge embraced in [ ] 13 14 15. The sentencing of the defendant. 1. It is good ground of objection to the jury, at common law, that they have been improperly chosen, or chosen by an unauthorized officer, or that the officers in attendance had permitted irregularities: Whart. Crim. Prac., § 886. Under the act of April 10,1867, P. L. 62, the jury in this case might have been drawn without the presence or assistance of the sheriff. Instances are numerous where the array has been quashed because of slight informalities, such as that the jury wheel was not properly locked and sealed, or that the key was in the custody of some one other than the sheriff, etc.: Brown v. Commonwealth, 73 Pa. 321; Curley v. Commonwealth, 84 Pa. 151. How much more important in a capital case, where the jury is drawn with the assistance of an officer who is the prosecutor in the cause. 2. The writ of habeas corpus was taken out by defendant to secure either his discharge or admission to bail, but after indictment found he could not have been discharged on habeas corpus, no matter what the nature of the testimony adduced: Commonwealth, v. Lemley, 2 Pittsb. 363. An indictment creates a presumption of guilt for all purposes except the trial before a petit jury: Church, on Hab. Corp. § 403. But two authorities have been found upon the subject: Commonwealth v. Hoey, 8 Phila. 370, and Commonwealth v. Bartilson, 85 Pa. 488, where the rule seems to have been recognized that an indictment will be quashed if found pending a writ of habeas corpus. Moreover, whether the writ in this case be considered statutory or at common law, the Court of Common Pleas had jurisdiction: Gosline v. Place, 32 Pa. 524, and its jurisdiction first attached, and should have been first disposed of. 3. In Staup v. Commonwealth, 74 Pa. 458, it was laid down as a rule by this court, that a juror who had read the evidence taken on a former trial and had formed an opinion from what he read that was fixed, deliberately formed and still entertained, was not a competent juror. In O’Mara v. Commonwealth, the rule stated was affirmed, with the addition, that where the juror’s “opinion of the prisoner’s guilt has become a fixed belief, it would be wrong to receive him.” Ortwein v. Commonwealth, 76 Pa. 414, followed, affirming all that was decided in the two former cases. The court then formulated and laid down the rules touching the competency of jurors in Allison v. Commonwealth, 99 Pa. 32, and ruled: “Where the juror entertains a fixed or deliberate opinion, no matter how formed, of the prisoner’s guilt, he is incompetent; and his belief that he can try the prisoner impartially will not remove the disqualification.” 4. The strength of the objection to the commonwealth’s offers of the testimony of James B. Smith, can be made apparent only upon inspection of the photographs in evidence showing the state of the forest on September 10, 1887, as contrasted with its state on March 28,1888. The commonwealth probably had a right to show what intervening objects there were on the line of sight, if any, on the former date, but it was not fair to allow it to show the reverse of the proposition, that there were none on the latter date, before their position had been assailed by the defendant. Such evidence, if relevant and competent at all, ought to have been offered in its place, in rebuttal; It was incompetent in chief: Zell v. Commonwealth, 94 Pa. 258. 5. This court has frequently held that inadequacy and insufficiency of the charge of the court below will be ground for reversal: Pauli v. Commonwealth, 89 Pa. 482; Meyers v. Commonwealth, 88 Pa. 148; Goersen y. Commonwealth, 99 Pa. 388. In the last named case, Mr. Justice Meiicuu said substantially that when a judge prominently presents in his charge the theory and strong features of the case of the prosecution, and the facts on which it is based, this constitutes a cause for reversal. Moreover, the court erred in not charging the jury that they might convict the defendant of manslaughter ; the whole tenor of the charge being that they must convict him of murder of the first degree, or acquit him. “ I hold it to be the duty of a judge trying a man for his life, to charge fully upon the law as applicable to the facts; and this without regard to the points presented by counsel: ” Meyers v. Commomvealth, 88 Pa. 143. And again, the quotation from GiBSON, C. J., in Commonwealth v. Harman, 4 Pa. 269, it is submitted, is not a proper instruction in a capital case. And we are not the first who have been injured by this dictum. The sentiment of the bar as to its propriety is reflected by the language of Mr. Justice Paxsox in MeMeen v. Commonwealth, 114 Pa. 305. 1. It is well settled that the sheriff, as the principal conservator of the peace for his county, has full power to make arrests for disturbing the public peace or for the commission of other criminal offences, upon view, with or without warrant, and in case of murder, to arrest upon mere suspicion, with or without warrant. In the performance of his official duty, liis individual capacity is almost wholly absorbed or lost sight of. Under the provisions of the act of April 10, 1867, P. L. 62, with reference to the drawing of juries, partiality is absolutely impossible, unless there exist a conspiracy between the sheriff and the jury commissioners. “Malpractice should be suggested and made probable to the court, before the array is quashed, unless there is some apparent legal defect : ” 2 Hawkins, P. C., 419. 2. Though the grand jury returned the bill of indictment on the-same day the hearing on the writ of habeas corpus began, yet from the very nature of the proceedings there could be no denial or abridgment of the defendant’s rights. Here were two separate and distinct proceedings instituted in two different courts, each of which had exclusive jurisdiction over its own subject matter. It would be mere usurpation for one court to inquire into the regularity of the proceedings of another : Williamson’s Case, 26 Pa. 24. But this writ was issued within fifteen days of the term, and should have been issued and determined in the Oyer and Terminer, or it might have been heard on simple motion during the term, without the writ: § 6, act of February 18, 1785, 2 Sm. L. 275 ; Commonwealth v. Sheriff, 7 W. & S. 108. 8. From the examination in its entirety of each juror, where the challenge for cause was overruled, and the fact that it was stated distinctly that if sworn to try the defendant the juror could and would make up Ms verdict wholly from the evidence, the juror was clearly competent. In Commonwealth v. Morrow, 9 Phila. 583, it was said: “ A contrary doctrine would exclude from the jury-box, in all cases of great public importance, the most intelligent class of jurors, those who read the papers and receive therefrom impressions from passing events. We may consider this question at rest.” And see O’Mara vt Commonwealth, 75 Pa. 424'; Ortwein v. Commonwealth, 26 Pa. 414; Allison v. Commonwealth, 99 Pa. 32; Reynolds v. United States, 98 U. S. 145. And in determining the fitness of a juror, and of course in seeing that the examination of him was such as to disclose the actual state of his mind, the question is largely one of discretion for the trial judge: Mason v. State, 15 Tex. App. 534; Montague’s Case, 10 Gratt. 267 ; Metzgar v. State, 18 Fla. 481. 4. As to the objection to J. B. Smith’s testimony, we fail to see any error committed by the court. It was entirely competent to show the topography of the scene of the murder. Moreover, the objection as made was merely a matter of the order of the evidence, and therefore entirely within the discretion of the court, and not the subject of error: McMeen v. Commonwealth, 114 Pa. 305. The specifications as to the charge of the court are too general. It is not a sufficient assignment of error, merely to refer to the whole charge as erroneous: Briggs y. Waldron, 83 NY. 582. And it is well settled that in a case of the nature of this, it is not error to omit to charge the jury that they may find a verdict of manslaughter : Brown v. Commonwealth, 7G Pa. 339; McMeen v. Commonwealth, 114 Pa. 300.
123 Pa. 576Washington N. Gas Co. v. Johnson (1889)
ERROR TO THE COURT OE COMMON PLEAS OE WASHINGTON COUNTY. No. 146 October Term 1888, Sup. Ct.; court below, No. 335 August Term 1887, O. P. On August 2, 1887, a summons in assumpsit issued in ari action by M. J. Johnson and others, against the Washington Natural Gas Company. The plaintiffs jn their statement set out the provisions of a certain grant and demise of lands for the purpose of drilling and operating wells for oil and gas, hereinafter quoted, and averred as their ground of action that the lessees and their assigns had broken their covenants made with the plaintiffs, in that they had “ failed to commence a second well upon said leased premises within the time men-tinned in said lease, to wit, witbin four months from May 1, 1886, or at any other time,” to the damage of the plaintiffs in the sum of $800. The defendant pleaded non assumpsit, payment, payment with leave. At the trial on June 14, 1888, the material facts made to appear were as follows: On August 5, 1885, the plaintiffs, in consideration of the covenants, etc., on the part of W. S. Guffey & Co. demised to said W. S. Guffey & Co., a tract of land in Mt. Pleasant township, containing about 75 acres, for the purpose of drilling and operating wells, etc., for the term of twenty years. The lease contained the following provisions: “ The said parties of the second part hereby covenant in consideration of the said grant and demise to deliver unto the said parties of the first part, their heirs and assigns, the full and equal one fourth part of the petroleum oil discovered and produced on the premises heroin leased, and to deliver the same in pipe lines to the credit of the parties of the first part free of charge. “ It is further agreed that i f gas is obtained in sufficient quantities and utilized, the consideration in full to the parties of the first part shall be eight hundred dollars ($800) for each and every well drilled on the premises herein described, per annum, payable witbin sixty days after completion of such well, and thereafter yearly in advance, at First National Bank, Washington, Pa. * * ** * “ Operations on the above described premises shall be commenced and one well completed within six months from the date hereof, and in case of a failure to complete one well within such time, the parties of the second part hereby agree to pay to the parties of the first part, for such delay, the sum of one hundred and fifty dollars, payable at First National Bank, Washington, Pa., and the parties of the first part hereby agree to accept such sum as full consideration and payment for such delay until May, 1886, when one well shall be completed, and a failure to complete one well or to make any of sucb payments within such time and at such place as above mentioned, renders this lease null and void and to remain without effect between tbe parties hereto. “And. it is further agreed, the second well shall be commenced four months after May, 1886, the time stated for the completion of well number one. “ It is understood by and between the parties to this agreement that all the conditions between the parties hereto shall extend to their heirs, executors and assigns.” The plaintiffs having shown title and the foregoing called William Davidson: . Plaintiffs propose to prove by the witness on the stand that he is one of the plaintiffs in this case; that the lease was made of their farm to W. S. Guffey & Co.; that the said Guffey & Co., or their assigns, completed one well upon said premises, but that no second well has been commenced and completed either by the said Guffey & Co. or by their assigns; that if the said second well had been commenced at the time specified in said lease and the drilling thereof pursued with due diligence, it would have been completed about January 1, T887, and that the $800 royalty for said well would have become due and payable after the assignment of the lease to the present defendant; and further, to show that the present defendant, as assignee of C. D. Robbins, who was the assignee of the original lessees of the premises, took possession of said premises, and were in possession thereof at the time of this suit, and that thej'' were receiving the gas from the first well drilled; and that no payment of the $800 or any other amount has been made to the said plaintiffs by the lessee or any of his assigns for that second well which should have been drilled by the terms of the lease; this for the purpose of showing that the plaintiffs are entitled to recover in this case the sum of $800, being the amount of the rental for the second well stipulated in said lease; and further, to prove that one strong gas well has been obtained on the premises leased; that the well is still flowing and utilized by the defendant company, and that the farm is located in the Hickory gas field, and that good producing wells have been obtained on other farms in the immediate vicinity. Objection: So much of this offer as follows in regard to the completion of the first well, is objected to, (1) for the reason that for a breach of such a covenant the plaintiffs would not have a right of action to recover rental upon an undrilled well, but tbeir right of action would be an action for damages for the breach of the covenant; (2) for the reason that the offer shows that this covenant was broken prior to the acquirement by the defendant of the leasehold in question: that such a covenant will not, after a breach, run with the land and bind a subsequent assignee; that the defendant is not liable to the plaintiff for a prior breach of such a covenant; and the offer is objected to as irrelevant and incompetent in this action against the defendant; and further, the general objection that the offer is incompetent and irrelevant. By the court: Objection overruled, offer admitted.1 It was then shown that on March 18, 1886, W. S. Guffey & Co. assigned the foregoing lease to C. D. Robbins, who drilled well’No. 1 upon the premises, completing it in the summer of 1886. The well produced no oil, but sufficient gas to be utilized. About May 1,1886, $800 had been paid by Mr. Robbins on account of the rental of this well from May 1,1886, to May 1, 1887. A location for a second well was made and a derrick erected about October 1, 1886, but drilling was not begun. On J anuary 20, 1887, Mr. Robbins assigned the leasehold to the Washington N. Gas Co. who went into possession, turned the gas from well No. 1 into its lines for transportation > to Pittsburgh, and continued in possession of the leasehold at the time the suit was brought. The second well was never drilled. Three months was a reasonable time in which to drill a well in that district. In July, 1887, a difficulty arose with the defendant company in reference to the amount that was due to the plaintiffs. On July 16th, Mr. L. McCarrell, representing the plaintiffs as their attorney, wrote to John F. Scott, the treasurer of the defendant company as follows: “I have this day received a letter from the Johnson heirs, in which they say they will accept $600 cash for rental of well, provided company pays counsel fees, which will be, say $50 additional, making the whole amount payable by your company now, $650.” On July 19th, Mr. Scott, for his company replied: “Your favor of 16th to hand. Enclosed I hand you check for six hundred and fifty ($650) being in full for the Johnson lease from May 1, 1887, to May 1,1888. Please send receipt.” On July 20th, Mr. McCarrell acknowledged the receipt of the check and returned a statement which was as follows: WASHINGTON NATURAL GAS Co. To Johnson Heirs, Dr. To rental of well No: 1, in Johnson lease, Mt. Pleasant tp., Washington Co., from May 1, 1887 to May 1, 1888 . . . $600.00 Attorney fee, ..... 50.00-$650.00 Received payment, July 20, 1887, of above bill, from Washington N. Gas Co. L. McCarrell, Attorney On July 21st, Mr. Scott wrote Mr. McCarrell: “Your favor of the 20th at hand. I return the receipt. The $650 was sent, and so stated, in full for Jolanson lease from May 1, 1887, to May 1,1888. If you cannot accept, please return check. We will then sell lease and give party the right to remove everything.” To this letter Mr. McCarrell replied on July 23d: “Yours, returning receipt, received; and in reply would say, that in no way did I ever suggest to you that the $600 or $650 was to be anything else than ‘for rental for gas from first well.’ This was the proposition submitted by me to my clients, and by me to you, and no other receipt than that sent to you will be given, unless your company will agree to put down the second well at once. If you will commence a second well at once, we will release you from rental up to date well is turned into line.” The court, MoIltaine, P. J., after reviewing the testimony, charged the jury, in part, as follows: Now, gentlemen, the consideration of this case, as it has been presented, involves the determination of a question of law and a question or questions of fact. The question of law must be determined by the court, and the questions of fact by you. As we have already said, this lease was made to William S. Guffey & Co., August 5, 1885. On March 18, 1886, it was assigned by them to C. D. Robbins, and on January 20, 1887, it was assigned bjr Mr. Robbins to the defendant company, which has held it and been in possession of the property leased ever since the last mentioned date. It is claimed by the defendant company that as this second well was to have been commenced witliin four months from May, 1886, which would be about the first of October, 1886, therefore they are not liable in this action, because the breach of the covenant complained of was before the date at which the assignment was made to the company. It is true as a general proposition of law, “that a total breach of a covenant which affects realty, becomes a mere personal right, which does not descend with the land to the heirs, nor run with any future assignment to third parties. Where the right of action falls, there it lies.” But let us look at this lease and at the facts, as the plaintiffs allege they are, and see if this principle of law will relieve the defendant from liability in this case. The plaintiffs leased their farm, and their evident intent in making the lease was, if their land proved to be paying gas territory, to obtain from the lessee, or their assigns, the price of at least two wells, or $1,600 per annum. The lessees, or their assigns, could hold the leased premises twenty years, and could drill as many wells as they saw fit within the twenty years, and could drill them when they pleased, provided, they drilled at least two wells, so that within a certain time the lessors would be receiving at least $1,600 per year as the usufruct or rental of the leased premises. It was the increased rental of $800 which the completion of a second paying well would insure to the plaintiffs, that they wished to secure to themselves, when they inserted in the lease that a second well was to be commenced within four months from May, 1886. [The true interpretation of the lease is, that the lessees bound themselves and their assigns not only to commence a second well by October 1,1886, and diligently drill it to completion, but, if gas ivas found and utilized, to pay to the lessors, the plaintiffs in this case, $800 within sixy days after its completion; and the payment of the $800 at the end of the sixty days is the vital part of this agreement to the plaintiffs. The breach of this covenant to drill a second well is not complete until the end of the sixty days, as the $800, until then, is not over-due. The commencement of the breach was the failure to begin a second well on or before October, 1886; and the consummation was in not paying the $800, when it ought to have been paid, had a paying well been struck.] 3 Suppose C. D. Bobbins, the holder of the lease, on October 1,1886, according to the provisions of the lease, had commenced a well and had diligently prosecuted the work thereon, and in a reasonable length of time, which, according to the testimony, would have been January 1, 1887, had struck gas in paying quantities which was utilized; could he have been sued by the plaintiffs for the |800, the price of this well, before January 20, 1887, the date on which he assigned the lease to the defendant company ? Certainly not, for the '$800 was not necessarily payable until sixty days after the completion of the well, which would be March 1, 1887, nearly one month and a half after the date at which the defendant company went into possession. [Again, we hold that the obligation to drill a second well continued, and that it fell upon the defendant company on the day they took possession of the leased premises under the assignment. And, if by the exercise of due diligence the company has had time to drill a second well to completion, and in addition to that time, sixty days in which to pay the $800 had expired before the bringing of this suit, which was brought about July 29,1887, then the company would be liable in this suit as the assignee of this lease.] 8 ***-*- ® *- ® * Now, gentlemen, taking it for granted you find there has been a failure to drill a second well, and that that failure has worked an injury to the plaintiffs, still the defendant company, in their defence, go a step further, and say that a compromise was consummated and that $650 was paid to the plaintiffs by the defendant company in full satisfaction of this claim for damages for not drilling a second well. Whether there was such a compromise you must determine from the evidence. [If you believe that the damage for not drilling this second well was included in the compromise, which resulted in the jjayment of $650 some two weeks before this suit was brought, then your verdict should be for the defendant; but if you think the $650 was paid only in satisfaction of the claim for rental of well No. 1, then the compromise would not affect this suit one way or the other.] 9 The defendant has asked us to charge you as follows: 1. If the jury believe that the payment of the $650, under the compromise agreement, was made in full satisfaction of all liability under the Johnson lease, from May 1, 1887, to May 1, 1888, the plaintiffs were bound to return or tender the amount so paid, before bringing suit, and Laving failed to do so the verdict must be for the defendant. Answer: This point ie affirmed if you find the facts as therein set forth. 2. Even though there was a misunderstanding between the plaintiffs and defendant as to what was included in the compromise agreement, the defendant having expressly stated the payment of the $650 to be in full satisfaction of all liabilities under the lease from May 1, 1887, to May 1, 1888, the plaintiffs’ acceptance of and refusal to return the money so paid, estops them from now disputing that it was in full of all liability for the year mentioned, and the verdict must be for the defendant. Answer: Affirmed, if the jury find that the facts are as stated in this point. 3. The defendant having demanded back the money paid under the compromise, unless the plaintiffs would accept it in full of all liability under the lease, from May 1, 1887, to May 1, 1888, the plaintiffs’ retention of the money so paid gave their consent to the terms and conditions upon which said payment was made, and they are now bound thereby. Answer: Affirmed, unless the jury find that, prior to the time the check was .sent and received, the parties had actually and fully consummated a compromise which provided for the payment of $650 for the rental of this first well alone, and which did not include the second well.8 4. Even if L. McCarrell, Esq., the agent for plaintiffs, was not authorized to compromise for well No. 2, the plaintiffs have ratified his acts since the commencement of this suit, by retaining the money paid, after having knowledge of the circumstances under which it was paid. Answer: Affirmed, if the jury find the facts are as stated in the point. 5. The defendant having become assignee of the lease after the four months had expired within which the second well was to have been commenced, the defendant cannot be held liable for the breach of the covenant to commence said second well, and the verdict should be for the defendant. Answer: Refused. 6. The plaintiff having shown, and it being a conceded fact, tbat a reasonable time for drilling said second well bad elapsed before defendant became assignee of the lease, the defendant cannot be held liable for a failure to drill said second well. Answer: Refused.3 7. It being shown by the plaintiffs themselves that the covenant in the lease offered in evidence, to commence a second well within four months from May, 1886, was broken before the defendant acquired any interest in said lease, the proper remedy of the plaintiffs for such breach was an action against the original lessee, or the holder or holders of the lease at the time of the breach; the defendant is not liable for the breach aforesaid, and the plaintiffs are not entitled to recover. Answer: Refused.4 ■Now, gentlemen, we leave this whole case with you. If you believe, first, that whatever difficulty there may have been between these parties in regard to the payment of the rental on the first well and for not drilling the second well, or for the rental of the second well the same as though it were chilled, was compromised by these parties, then your verdict must be for the defendant, and you need go no further. If you find for the plaintiffs on that question, and think the compromise did not include this second well, then the next question is whether there was a failure to drill the second well; and there is no dispute about that. Then the next will be, did that failure, judging from all the evidence in this case, damage the plaintiffs. Are you satisfied by a preponderance of the evidence that this failure actually damaged the plaintiffs ? If you think it did not damage the plaintiffs, and that they would not likely have got anything therefrom, if the defendant company had drilled the second well, then your verdict should be for the plaintiffs for six and one fourth cents damages, simply for not drilling the well, nominal damages for the breach. [If you, however, think that not drilling that second well did actually damage them, then you will determine how much it damaged them; if, in all probability the second well would have been a paying well, then are they entitled to the full yearly rental, which was $800, with interest from the time it ought to have been completed.] 6 These are all the remarks I wish to make in this case, and you will take it and give it such careful consideration as the case deserves, bringing in sucli a verdict as you think will do justice between these parties upon all the evidence. The jury returned a verdict in favor of the plaintiffs for f800. Judgment having been entered upon the verdict, the defendant took this writ, assigning as error: 1. The admission of plaintiffs’ offer.1 2. The part of the charge embraced in [ ] 3 3. 4. The answers to defendant’s points.3 4 5, 6. The parts of the charge embraced in [ ] 5 6 8. The answer to defendant’s third point.8 9. The part of the charge embraced in [ ] 9 The time limited for drilling the second well cannot be disregarded any more than the obligation to drill it. The obligation to drill arises out of the same covenant that limits the time. As three months was a reasonable time for drilling a well, the meaning of the covenant then was to drill a second well before January 1, 1887. The breach of this covenant occurred before the liability of defendant began. 1. It has always been held that a covenant running with the land ceases to run as such after breach, and will not bind a subsequent assignee: Negley v. Morgan, 46 Pa. 281 ; Daily v. Beck, Bright. 107; Taylor’s L. & T., § 449; Jackson and Gross, L. & T., § 980 ; Borland’s App., 66 Pa. 470. And the fact that the thing covenanted to be done is to be performed within a specified time, and is for the benefit of the lessor as well as of the lessee, forms no exception to the rule : Southwark v. Smith, 3 Burr. 1271; Fisher v. Lewis, 1 Clark 431; Grescott v. Green, 1 Salk. 199; Pollman v. Morgester, 99 Pa. 611; Fisher v. Lewis, 1 Clark 422. 2. But, conceding that the covenant to drill a second well continued to run with the land at the time of the assignment of the lease to the defendant company, the utmost duty it could impose would be to drill the second well. The three months required for that, with the sixty days additional for the payment of the rental, would make June 20, 1887, the earliest date at which suit could be brought against the defendant to recover the $800 rental. But the court instructed that plaintiffs could recover $800 as of date March 1, 1887. Yet the annual rental as such never accrued, and the breach declared on is not a failure to pay rental but a failure to drill; and the plaintiff’s only remedy was an action for damages. 3. Charging the defendant with the payment of $800 rental as of March 1, 1887, is holding it responsible for a breach committed by its assignor. An assignee of a lease is liable only by reason of privity of estate, and, therefore, only for breaches of covenants committed while that privity exists: Negley v. Morgan, 46 Pa. 281. The plaintiff’s only remedy being an action for damages for breach of the covenant to drill the second well, against the assignee in possession at the time of the breach, the breach was complete and an action was maintainable January 1, 1887, notwithstanding the sixty days allowed for payment of rent on producing wells had not expired: Lamoreux v. Rolfe, 36 N. H. 33; Aleott v. Hugus, 105 Pa. 350; iEtnalns. Co. v. Nexsen, 84 Ind. 347 (43 Amer. R. 91) ; Hochster v. De La-Tour, 2 Ell. &. B. 678. 4. The plaintiffs were precluded from bringing their action by their receipt and retention of the $650 paid by defendant. It was immaterial whether well No. 2 had been covered by any prior agreement or not, since this would be at most only an accord without satisfaction, and not binding on either party, so long as it remained executory: Hearn v. Kiehl, 38 Pa. 147; Blackburn v. Ormsby, 41 Pa. 97; Bagley v. Hornan, 32 E. C. L. R. 915; 3 Black. Com. 15; Ball v. Ball, 43 Conn. 455; McDaniels v. Lapham, 21 Yt. 222; Simmons v. Hamilton, 56 Cal. 493; Schlitz v. Meyer, 61 Wis. 418; Cushing v. Wyman, 44 Me. 134; Kromer v. Heim, 75 N. Y. 574 (31 Amer. R. 491). 5. Even when a party is chargeable with fraud in the procurement of a compromise of a claim against him, the other party is bound to return the fruits of the compromise, before bringing suit on the original cause of action; he cannot retain the money paid, and at the same time repudiate the terms of its payment: Staines v. Shore, 16 Pa. 204; Morrow v. Rees, 69 Pa. 373 ; Herman on Estoppel, § 1043; Gould v. National Bank, 86 N. Y. 75 ;■ Bisbee v. Ham, 47 Me. 543; Fink v. Knauss, 4 W. N. 356. The plaintiffs’ protest that the payment would be accepted only oil account of rental of well No. 1, will not avail tliem: Ball v. Ball, 43 Conn. 455 ; Preston v. Grant, 34 Yt. 201; McDaniels v. Lapham, 21 Vt. 222. 1. Whether a covenant will run with land must depend, in the first place, upon the nature and character of the particular covenant and of the estate demised, as connected with the respective rights of lessor and lessee, in reference to the subject matter of the covenant; and, in the next place, upon the intent of the parties in the creation of the estate, as shown by the language of the instrument creating it, construed with reference to the relative positions of the parties, and to the subject matter to which their contract and conveyance are to be applied: Masury v. Soutliworth, 9 Ohio, N. S., 344 ; Spencer’s Case, 1 Smith’s L. C. 131; Barclay v. Steamship Co., 6 Phila. 558. The words of the covenant are: “ And it is further agreed the second well shall be commenced four months after May, 1886, the time stated for the completion of well No. 1.” And there is this clause: “It is understood by and between the parties to this agreement, that all the conditions between the parties hereto shall extend to their heirs, executors, and assigns.” 2. The benefit of a covenant relating to land, that is to say, the right to enforce it against the covenantor and his personal representatives, will pass with the land to every one to whom it may subsequently be transferred. And whenever the relation of tenure is created by a grant, all the covenants of the grantee, for himself and his assigns, which affect the land granted, will be a charge upon it and. bind every one to whom it may subsequently come by assignment: 1 Smith’s L. C. 159; Torrey v. Wallis, 3 Cush. 442. The covenant to drill the second well and to pay the stipulated price therefor, was a part of the consideration which induced the plaintiffs to execute the lease : and the defendant took the assignment of the lease with full knowledge of the covenants it contained. It held the lease, retained possession of the farm, and it utilized the gas from the well already drilled; how can it refuse performance of tbe covenant which was a part of the consideration inducing the execution of the lease? Bradford Oil Co. v. Blair, 113 Pa. 83. 3. The authorities cited by the defendant were cases where the lessee covenanted to complete a certain thing by a certain time, and it was held that the covenant was not binding upon an assignee who took the lease after the time limited for the completion of the work to be performed. In none of the cases was it decided that a breach of the covenant to commence the work, before assignment of the lease, would relieve the assignee from liability for a breach of the implied covenant to complete the work. In the case at bar, there was an express covenant to commence a second well by October 1, 1886. On October 2,1886, an action of covenant might have been maintained, for breach of the covenant to commence, though but nominal damages could have been recovered: Marriott v. Cotton, 2 C. & Kir. 553; Worcester Schools v. Rowlands, 9 O. & P. 734. 4. If after suit brought the covenantor should commence and partially drill a well, a recovery of nominal damages in the prior suit, could be no bar to a second action. Hence, we maintain there was an implied covenant to complete the well; that this covenant continued and was binding upon the lessee at the very moment of the assignment. Now the whole argument of the defendant rests upon the assumption that the covenant to commence a second well on October 1, 1886 was broken. But was it broken? The well would be commenced when the parties began the erection of a derrick; and the evidence clearly shows that a derrick was erected for this second well a few days before October 1, 1886. The covenant to commence was therefore complied with, and the authorities cited by the defendant are inapplicable. 5. But it is claimed that if the covenant to drill a second well does run with the land, the proper remedy is an action for damages for breach of the covenant and not an action to recover the rental of the well. That is, the assignee may say, It is true I am bound by the covenant; if I had drilled the well I would have had to pay the rent, but I broke my covenant ; I did not drill the well, and therefore am not obliged to pay the rental. The verdict of the jury upon the evidence establishes that gas would have been found in paying quantities; the demise is, then, in effect the grant of the right to drill for oil or gas, the lessee to pay therefor the animal rental of $1,600. Can the defendant defeat the right of the plaintiffs to this sum, by refusing to perform its covenant ? 6. The plaintiffs had a right to demand and the defendant was bound to pay $800 for the first well, the amount being liquidated by the terms of the lease; and, when defendant sent the check for $650, upon the offer made by the plaintiffs, through their attorney, it paid nothing more than it was bound to pay, without reference to well No. 2, and the retention of the money was no wrong and did not estop the plaintiffs. While it is true that a mere accord, without satisfaction, is not binding upon either party, yet it is equally true that a mere i'eceipt by a creditor of part of his debt when due, is not a good defence by way of accord and satisfaction to an action for the remainder, although the creditor agreed to receive it in full satisfaction: 2 Chit, on Con., 1101; Warren v. Skinner, 20 Conn. 559; Smith v. Bartholomew, 1 Met. 276; Mitchell v. Cragg, 10 M. & W. 867; Twitchell v. Sliaw, 10 Cush. 46; Seymour v. Minturn, 17 Johns. 169; Johnston v. Brannon, 5 Johns. 271; Dederick v. Leman, 9 Johns. 838; Tuttle v. Tuttle, 12 Met. 551. The defendant owed the money, was bound to pay it, and pay it unconditionally. The demand was liquidated. The defendant was not in a position to dictate terms.
123 Pa. 594Commonwealth v. Delaware Div. Canal Co. (1889)
ERROR TO THE COURT OE COMMON PLEAS OF DAUPHIN COUNTY. No. 28 May Term 1888, Sup. Ct.; court below, No. 170 September Term 1887, C. P. On May 20,1887, the auditor general and state treasurer of Pennsylvania, upon a return made under protest by The Delaware Division Canal Company, a corporation organized under the laws of Pennsylvania, made the following settlement of account for taxes: Delaware Division Caxal CompaNy, In account with the Commokwealth oe Pennsylvania, Dr. For tax on scrip, bonds, and certificates of indebtedness, per section four of the act of June 30, 1885, for the year ending first Monday of November, 1886, as per report herewith filed: Nominal value of scrip, bonds, and certificates of indebtedness, owned by residents of Pennsylvania, . . §700,000 Tax, three mills, . . . $2,100 00 Deduct treasurer’s commission, 60 50 Due commonwealth, . . $2,039 50 On July 14, 1887, the company thus charged appealed from said settlement, specifying objections thereto which in substance were as follows: 1. Section 4, act of June 30,1885, does not impose any duties or liabilities upon corporations in respect of any tax on bonds or mortgages issued by them, but applies only to persons who act in the capacity of treasurers of corporations. 2. If said section, or any section of said act, does apply to corporations, the act nevertheless does not impose a tax upon them in respect of their indebtedness, but requires or authorizes them to act as collectors, by retaining the tax from their creditors when paying interest upon taxable bonds or mortgages. 3. An arbitrary valuation at par is not a valid assessment as the foundation of an ad valorem tax. 4. Taxation upon such an assessment, without notice to the owner of the property taxed and the right of appeal from the valuation, amounts to a taking without-“due process of law.” 5. By reason of the discriminative methods of 'assessing different subjects of the same class, and of the fact that in taxing corporate loans at par some are taxed at very much above and others at very much below their actual values, some paying as high as six and others as low as two mills upon their actual value, the resulting taxes are not uniform as required by § 1 of article IX. of the constitution of the state, and, 6. The act being in violation of both the federal and state constitutions, no tax was lawfully due and none could lawfully have been deducted by it from the interest due to its creditors by the terms of its contract with them. The cause was submitted to the decision of the court, without trial by jury, under the act of April 22, 1874, P. L. 109, and after the hearing which began on December 19,1887, was concluded, the court, Simonton, P. J., filed the following decision : This case was tried by the court, as provided by the act of April 22, 1874. It originated in an account settled May 20, 1887, by the auditor general and state treasurer against defendant “ for tax on scrip, bonds and certificates of indebtedness,” from which settlement defendant entered an appeal to this court, as authorized by the act of 1811 relative to public accounts. We find from the evidence the following facts: 1. The Delaware Division Canal Company, defendant, is a corporation of the state of Pennsylvania, chartered in 1858, and having authority to borrow money, issue bonds and secure the same by mortgage. 2. In pursuance of this authority, defendant has issued bonds secured by mortgage to the amount of §800,000, all of which were outstanding during the year ending with the first Monday of November, 1886, and were held as follows: By non-residents of Pennsylvania,.§100,000 By residents of Pennsylvania, :.285,000 By the Lehigh Coal & Navigation Company, a corporation of the state of Pennsylvania,. 306,000 By other corporations of the state of Pennsylvania, 109,000. 3. No interest was paid upon the §306,000 of bonds held by the Lehigh Coal & Navigation Company, nor was any due or payable. By the terms of an agreement of lease between the two companies, these bonds are not to bear interest until,the termination of the lease. Upon the remaining §494,000 of bonds interest was paid upon the first days of January and July, but the company, denying the validity of the fourth section of the act of 1885, did not deduct and pay into the state treasury the state tax of three mills as required by said section. 4. The nominal or par value of bonds and mortgages issued by corporations is no certain measure of their actual value, which is often either above or below their par value; the actual value being dependent upon the value of the property mortgaged, the rate of interest, the date of maturity, and other conditions; some bonds upon which interest is regularly paid selling as low as fifty cents on the dollar, and others as high as one hundred and fifty. The actual and par value of mortgages issued by individuals agree more nearly than those of mortgages issued by corporations. 5. There are owned by residents of Pennsylvania large amounts of bonds and mortgages issued by foreign corporations not doing business in this state, and not subject to the provisions of the fourth section of the act of June 30, 1885, but taxable at their actual value under the first section, the actual value of some of which bonds is much above and others much below their nominal or par value. 6. The settlement appealed from is, as stated therein, based upon § 4 of the act of June 30,1885, P. L. 193. Tax is charged therein upon all the bonds of the company defendant except the §100,000 thereof held by non-residents of the state. "We think a brief history of prior legislation, similar to that now before us, and of judicial decision thereon, will aid us to understand and determine the questions involved in this case. The act of June 80, 1885, on which the settlement of account and claim for taxes in this case is based, is a second supplement of the act of June 7,1879, P. L. 112, entitled “An act to provide revenue by taxation,” the first supplement being the act of June 10,1881, P. L. 99. The taxing sections of these three acts are substantially identical, and are in effect the same as the taxing section of the act of April 29, 1844, P. L. 501. They all tax among other things “mortgages, money owing by solvent debtors, whether by promissory note, penal or single bill, bond or judgment; ” the acts of 1844 and 1885, at the rate of three mills on every dollar of the value thereof, and the acts of 1879 and 1881 at four mills. Under the act of 1844, and other tax laws in force, the tax on the mortgages and evidences of indebtedness of railroads and other private corporations, which we shall hereafter in this opinion style corporate loans, was levied, assessed and collected by the same officers, process and machinery as other state and county rates and levies. The several assessors were required to value them as all other objects of taxation, “according to the actual value thereof, and at such rates and prices for which the same would separately bona fide sell: ” ' Act of May 15, 1841, P. L. 393. An attempt was made, by the act of 1879, to change the mode of levying the tax on corporate loans. After exempting them from taxation, except for state purposes, it enacted that “all corporations paying interest on loans hereby taxed for state purposes only, shall deduct the said tax from the said interest and pay the same into the state treasury.” To this provision was added, in § 2 of the act of 1881, a clause requiring the corporations to report annually in the month of November, the amount of indebtedness upon which they had paid interest. Accounts having been settled against numerous corporations, under these acts, for tax on corporate loans for the years 1880 and 1881, appeals were taken by the corporations to this court, when it was contended on their behalf that, as there were no means of assessment provided by the acts, it was still the duty of the local assessors, in making the assessment for the years In question, to value and assess corporate loans with the other subjects of taxation in the hands of their owners; that in discharge of this duty the assessors, acting as officers of the commonwealth, had made such assessments and had made due and proper returns thereof, which had been accepted and acted upon by the revenue officers of the state, and, therefore, it must be assumed that they had performed their full duty in the premises, and that their returns were full and true, not only as to all classes of subjects but also all objects taxable in said classes, including these loans, and that, therefore, the tax upon them must be presumed to have been collected by the ordinary mode of collecting state and county taxes. This court found the facts to be as claimed, and decided that the necessary conclusion of law was that the tax had been paid and therefore entered judgment for defendants; and, on writ of error to the Supreme Court, this judgment was affirmed: Commonwealth v. Lehigh Yalley R. Co., 104 Pa. 89, decided October 2, 1883. Thereupon, at the next session of the legislature, the act of June 30, 1885, was passed, as a further supplement to the act of 1879. In it no change is made in the subjects of taxation, but the rate is changed from four mills to “three mills on the dollar of the value ” of the taxable subjects annually; and in § 4 it is made the duty of the treasurer of each private corporation, on the payment of interest on its indebtedness to residents of the state, “to assess the tax imposed and provided for state purposes upon the nominal value of each and every said evidence of debt,” while § 6 provides that corporate loans and indebtedness shall not be returned to nor assessed by the local assessor. Accounts having been settled against numerous corporations under § 4, of this act, appeals have been taken; and one of these is now before us. It is obvious that the defence set up in the case above referred to cannot be interposed in this, for, as we have seen, § 6 of the act, withdraws corporate loans from the jurisdiction of the local assessors, and therefore there can be no presumption that they have been assessed in any other mode than that prescribed by § 4 of the act of 1885. ' But the defendants contend that, the settlement, now in question, is illegal and invalid because, among other reasons, § 4 is repugnant to the clause of the constitution of 1874, which ordains that “ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” The argument is that the taxing section of the acts subjects all the taxable subjects therein designated, including corporate loans, to a tax of three mills on the dollar of their value ; that all the other subjects are valued and taxed according to such value by the local assessors, while corporate loans are, without being valued and assessed, taxed at their nominal value ; and it is averred and we have found, as one of the facts in the case, that their nominal value is not a certain measure of their actual value, which is often much greater, and often much less; so that, in many instances, the tax is much more, and in many others, much less, than it would be if imposed upon the actual value of each several taxable subject. To appreciate correctly the force of this argument, we must understand clearly the nature of the tax in question. This we can readily do from the decision in the case referred to above. It is there demonstrated that it is a tax on property, and that when this property is made taxable at three mills on the dollar of its value, its actual cash value is intended. But if it is a tax on property it cannot be levied without an assessment. And if the property is taxable at a given rate upon its actual cash value, the assessment must include a valuation. A valuation “ is a necessary part of every assessment of taxes which is governed by a ratio or percentage. There can be no rate or percentage without a valuation:” Mr. Justice Miller, in People v. Weaver, 100 U. S. 539. “ Of the necessity of an assessment no question can be made. Taxes by valuation cannot be apportioned without it. Moreover it is the first step in the proceedings against individual subjects of taxation, and is the foundation of all which follows it; without an assessment they have no support, and are nullities: ” Cooley, Const. Lim., 259. “ The tax of a citizen is the result of the rate applied to the value of the property which he owns, and he is not taxed until the rate is thus applied by some legal mode of adjustment; no duty of payment arises, no proceeding to collect can be sustained, until the tax is thus created:” Commonwealth v. Lehigh V. R. Co., 104 Pa. 101, per Clauk, J. It was no doubt the judgment in this case which led to the insertion in the act of 1885, which as we have seen is a supplement to the act of 1879, then before the court, of the provision in § 4, making it the duty of the treasurer of corporations, on the payment of interest to residents of the commonwealth, “to assess the tax imposed and provided for state purposes,” which is the tax imposed by § 1, of the act, “ upon the nominal value ” of the corporate loan. Bearing in mind that the tax in question here is, by the express terms of the act imposing it, a tax of “ three mills on the dollar of the value ” of the taxable subjects, and that this means actual cash value, it might well be questioned whether an assessment of the tax “ upon the nominal value of each and every said evidence of debt,” is such an application of the rate to the value of the property as would amount to a valid tax, especially when such assessment is not in any respect the result of the exercise of the judgment of the person making it, but merely an arithmetical calculation made in obedience to the mandate of the law. But let us, for the sake of the argument, assume that the assessment prescribed in § 4, is, so far as the principle of the valuation is concerned, a valid assessment. We have then this state of affairs: All mortgages and loans are, by § 1 of the act, taxable at the rate of three mills on the dollar of their actual cash value, and all of them, except corporate mortgages and loans, are in practice so taxed; while corporate mortgages and loans, which are undoubtedly embraced in the general terms “ all mortgages and loans,” are in practice taxed at the rate of three mills on their nominal value, which often differs by one hundred per centum from their actual value, so that the tax is in many cases double and in others not more than one half the amount it would be if the tax were upon the actual value; with the result that of two persons owning taxable property, of exactly the same value, one is taxed twice as much as the other, and this, not because of any defect in the working of the law, but as a necessary result of its provisions. And the question to be answered is, are taxes so levied and assessed uniform within the meaning of that term as employed in the constitution ? It must be conceded that the uniformity required is not absolute, for as said by Mr. Justice Miller, in State Railroad Tax Cases, 92 U. S. 612, “ Perfect equality and perfect uniformity of taxation as regards individuals or corporations, or the different classes of property subject to taxation, is a dream unrealized.' It may be admitted that the system that most nearly attains this is the best. But the most complete system that can be devised, must, when we consider the immense variety of subjects which it embraces, be imperfect. And when we come to its application,.....made by men whose judgments and opinions must vary as they are affected by all the circumstances brought to bear upon each individual, the result must inevitably partake largely of the imperfection of human nature, and of the evidence on which human judgment is founded.” This extract points out very clearly one of the limitations with which the requirement of uniformity must be understood. Taxes are uniform in the sense of the constitution, when any inequality of burden which results from their imposition is due to the imperfect knowledge or judgment of the persons whose duty it is to assess them. When, however, the law itself is so framed that it necessarily produces gross inequality of burden, no matter how perfectly it may be administered, it would seem impossible to avoid the conclusion that it violates the mandate of the constitution. If some of the subjects of a given class were not taxed at all while others were, there would, of course, be a gross inequality, in that the burden would fall on one and not on another. But this is forbidden by § 2, of article IX., which ordains that all laws exempting property, other than certain enumerated subjects, shall be void. Hence, if any given class of subjects be taxed, none belonging to that class can be exempted. The mandate in favor of uniformity in § 1, article IX., means more than this. It is not satisfied until the taxes, which are imposed upon all the subjects of a given class, are so imposed that each person owning the same species of property, shall pay the same amount of tax, upon the same value, when that has been ascertained by the proper authority. The values need not, of course, be absolutely the same ; but they must be so in the judgment of the official whose duty it is to fix them. When this is clone, and when, the rate being fixed, the proportion between values and taxes is constant, theoretical uniformity has been attained; and this is all that is or can, practically, be required. But, if in one case the value to which the rate is applied is the expression of the judgment of the proper official, and in another a mere arbitrary nominal value, it is in the very nature of the case that the resulting taxes cannot be uniform. There can be no definite proportion between the value of the property of the citizen ‘and the amount of his taxes. And, as the findings of fact show, this would be the inevitable consequence of the enforcement of the law in question in this case, no matter how faultless its administration might be. We have, therefore, no hesitation in declaring that if all mortgages, money owing by solvent debtors, whether by promissory note, penal or single bill, bond or judgment, including corporate loans, are by the act of 1885 embraced in the same class of subjects, § 4 of the act violates the constitutional mandate in favor of uniformity, and cannot bo enforced. Nor would the result be different if we should assume that the class to which corporate loans belong includes the mortgages, bonds and evidences of debt of corporations only. The findings of fact show that there are large amounts of bonds and evidences of indebtedness of corporations, not doing business in this state, which are held and owned here. These are by the act taxable at their actual cash value, to be fixed by the local assessors, while the same subjects of taxation when issued by corporations doing business in the state, are to be assessed at their nominal value. Hence the same want of uniformity which we have condemned above would exist here also, and must come into like condemnation. But it has been suggested that the corporate loans mentioned in § 4, form of themselves a distinct class. Let us assume that this is so. Then, under the facts, the necessary working of the law is that a citizen owning these loans to the value of ten thousand dollars, may pay a less amount of tax than another whose holdings are worth only five thousand. The only, difference between the working of the law, on this assumption and on the other, would be that while in the other cases some of the valuations would be arbitrary, here they would all be so; there, in some cases there would be no definite proportion between the real value and the tax; here, the want of proportion would exist in all cases. [The conclusion is, that the act cannot be construed in harmony with the constitutional mandate as to uniformity of taxes by adopting any possible system of classification, and that it is, therefore, as to § 4, unconstitutional and void. If this be so, judgment' must go in favor of the defendant, and it is unnecessary to return to the question of the validity of the assessment, which we therefore leave to be discussed hereafter, if it arises. Nor shall we now consider the other objections to the settlement which are specified in the appeal. If we are in error in deciding the one to which we have given special attention to be fundamental, the others will appear upon the record, and will have to be passed upon before a final judgment can be entered. We prefer to rest our judgment, at present, upon the objection to the law for want of uniformity, in the taxes levied under it.] 6 We have no doubt that the defendant has a legal standing in this appeal, to test the constitutionality of the law and the validity of the settlement under it. While the tax is not imposed upon it, and it is simply required to retain the tax out of interest due and pay it over to the state, it is not, as it is argued on behalf of the commonwealth, a tax collector in the strict sense of the term. The settlement is against it; if it failed to appeal within sixty days after notice, the settlement would become conclusive against it; there is no provision in the act for notice to the individuals who must pay the tax, and their rights, probably, cannot be determined in this proceeding; defendant has therefore a direct interest in the matter which entitles it to be heard, and if the tax is illegal and unconstitutional it was under no obligation to retain it and pay it over to the state. We have not thought it necessary to discuss or cite the cases relied upon by the learned attorney general and his able deputy. We do not think anything of authority will be found in them contrary to the conclusions at which we have arrived. We have therefore arrived at the following: CONCLUSIONS OJF LAW. 1. That § 4, of the act of June 80, 1885, is repugnant to § 1 of article IX. of the constitution of Pennsylvania, which ordains that “ all taxes shall be uniform within the territorial limits of the authority levying the same,” and is therefore void.1 2. That the settlement appealed from in this case is illegal /and invalid because the taxes claimed therein, under § 4 of the | act of June 80, 1885, are not uniform, as required by § 1 of I article IX. of the constitution.3 8. That the defendant in this case has the legal right to interpose the defence of the unconstitutionally of the act, and the invalidity of the settlement made under it.3 / 4. That judgment must be given in favor of defendant.4 / We therefore direct judgment to bo entered in favor of deI fendant, unless exceptions be filed within the time limited by ^ law. To the foregoing decision the commonwealth filed exceptions, specifying that the court erred: 1. In the first conclusion of law.1 2. In the second conclusion of law.3 3. In the third conclusion of law-3 4. In the fourth conclusion of law.4 5. In not entering judgment for the commonwealth.3 6. In not finding, as a matter of fact, that, under the evidence of the defendant, the averages of the values of the corporate loans in question were as follows: General average of all quotations, 98; general average, excluding quotations under 50, 101. 7. In that part of the decision embraced in [ ] 6 These exceptions were subsequently disposed of by the following opinion: We are asked, by the sixth exception filed by the commonwealth, to find that, excluding from the computation some of the lower values, “ the averages of the values of the corporate loans,” mentioned in the exhibit attached to the depositions given in evidence by defendant, is substantially par. This would be equivalent to finding that if an equal amount of each of these securities was assessed at their nominal value, the proportion that would be assessed too high would equal the proportion assessed too low, and hence that while the state would receive too little tax from the holders of the one, it would be compensated for this loss by receiving too much from the holders of the other. We are unable to see how this finding would strengthen the commonwealth’s case. On the other hand, it seems to us to bring out, in the clearest light possible, the fact that the assessment of the securities at their nominal value must necessarily result in taxes which are not uniform. The very idea of average implies, necessarily, want of uniformity. But, as we are requested by the commonwealth so to do, we find that the arithmetical calculation contained in the sixth exception is substantially correct. We do not think it necessary to add anything to what has been already said in the opinion heretofore filed, and, therefore, the exceptions, except as above stated, are overruled and judgment is directed to be entered in accordance with said opinion. Thereupon, the commonwealth took this writ specifying that the court erred: 1-5. In overruling the commonwealth’s exceptions.1 *° 5 6. In that part of the decision embraced in [ ] 6 As preliminary to the discussion of the points upon which the action of the court below was based, it is urged: (1) The tax in question was properly assessed against the corporation defendant, in accordance with the practice of the accounting department since 1844, at least: Maltby v. Railroad Co., 52 Pa. 140; Commonwealth v. Railroad Co., 2 Pears. 394 ; Delaware etc. R. Co. v. Commonwealth, 66 Pa. 64. (2) The tax is settled against the corporation as a tax collector, and not against the treasurer as a person liable as a taxable: Maltby v. Railroad Co., 52 Pa. 140; Commonwealth v. Railroad Co., 2 Pears. 395; Commonwealth v. Railroad Co., 104 Pa. 89. (3) The performance of the duty and function imposed by the act upon the corporation, is legally and constitutionally obligatory : Commonwealth y. Railroad Co., 2 Pears. 395; Commonwealth y. Railroad Co., 104 Pa. 106; Buffalo etc. R. Co. v. Commonwealth, 3 Brewst. 374; Maltby v. Railroad Co., 52 Pa. 140; Commonwealth v. Railroad Co., 104 Pa. 89; Haight v. Railroad Co., 6 Wall. 15; New Orleans v. Deposit Co., 31 La. Ann. 826; Wood’s Railway L., 1696. (4) No assessment further than § 4 of the act of 1885 provides, is requisite in order to authorize the deduction of the tax: Commonwealth v. Phoenix Iron Co., unreported; Maltby v. Railroad Co., 52 Pa. 140; Delaware etc. R. Co. v. Commonwealth, 66 Pa. 66; Susq. Canal Co. v. Commonwealth, 72 Pa. 72; Buffalo etc. R. Co. y. Commonwealth, 3 Brewst. 374; Commonwealth v. Railroad Co., 104 Pa. 89; Commonwealth v. Martin, 107 Pa. 185. I. If, therefore, the corporation may lawfully be required to collect the tax, and if the legislative rule of assessment at parís sufficient to enable the corporation to ascertain the tax, it must act under the law, and having refused to act, no defence based upon alleged constitutional or other rights of the taxable person can be set up to justify it or excuse it from liability on such refusal: Moore v. Allegheny, 18 Pa. 55; Commonwealth v. Philadelphia, 27 Pa. 497 ; State v. McNally, 34 Me. 210 (56 Amer. D. 650) ; Stanford v. Nichols, 13 Mass. 286; Wellington v. Petitioners, 16 Pick. 87 (26 Amer. D. 631) ; State v. Carroll, 38 Conn. 449 (9 Amer. R. 409) ; Baker v. Braman, 6 Hill 47 (40 Amer. D. 387); Commonwealth v. McCombs, 56 Pa. 436; Clark v. Commonwealth, 29 Pa. 129; Cocke v. Halsey, 16 Pet. 71; People v. White, 24 Wend. 520 ; Hencke v. McCord, 55 la. 378; Taylor v. Shrine, 3 Brev. 516; Lee v. Tillotson, 24 Wend. 337 (35 Amer. D. 624) ; People v. Railroad Co., 15 Wend. 113; Crowell v. Lawrence, 41 N. Y. 131; People v. Salomon, 54 111. 39; Sessums v. Botts, 34 Tex. 335; Chicago etc. R. Co. v. Langdale, 56 Wis. 614; Bidwell v. Pittsburgh, 85 Pa. 412; Motz v. Detroit, 18 Mich. 495; Ricketts y. Spraker, 77 Ind. 372; Cooley, Const. Lim., 161— 167; Morgan v. Plank Road, 2 Dutch. 99; Clifton v. Gwynn, 8'N. C. 145; Waters v. Maryland, 1 Gill 302; Wilkinson v. Benedict, 56 Ga. 290; People v. Cooper, 10 111. App. 384; Houston Co. y. Dwyer, 59 Tex. 113; Machiasport v. Small, 77 Me. 109; Alabama v. Lott, 69 Ala. 147; Maryland v. Railroad Co., 34 Md. 344; Smith v. Titcomb, 31 Me. 272; Williams v. Holden, 4 Wend. 223; State v. Cunningham, 8 Blackf. 339. II. If, however, the corporation defendant, whose relations as a collecting agency under these and similar taxing statutes have been so clearly and accurately defined by the courts, may deny the validity of the statute in question and avail itself of such defences as are peculiar and appropriate to the taxable himself, such defences can only be upon the ground that the statute is obnoxious to some clear prohibition in the constitution. (a) The power to tax is inherent in the state and is an essential and necessary ingredient of sovereignty; it is not derived from the constitution and exists independently of it: Kirby v. Shaw, 19 Pá. 260. Courts cannot annul tax laws because they operate unjustly or unequally. If they could, they could defeat all taxation, for .there never was a tax that was not more or less unjust and unequal in its practical working. The object of the constitution is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power of the legislature to make laws would be absolute: People v. Draper,' 15 N. Y. 549; People v. Flagg, 46 N. Y. 401; Monongahela Nav. Co. v. Coons, 6 W. & S. 117; Commonwealth v. Hartman, 17 Pa. 119; Sharpless v. Philadelphia, 21 Pa. 160, 164; Weister v. Hade, 52 Pa. 474. The limit of the judicial function, in respect to the exercise of the taxing power, is the power to determine whether any particular tax law violates the provisions of the constitution. (5) It is well settled that no statute is unconstitutional merely because it is wrong in policy or principle, contrary to sound public morals or injurious to private rights: Erie etc. R. Co. v. Casey, 26 Pa. 287; Commonwealth v. Maxwell, 27 Pa. 458; Sharpless v. Philadelphia, 21 Pa. 160. A party who wishes to pronounce a law unconstitutional, takes upon himself the burden of proving beyond all doubt that it is so: Erie etc. R. Co. v. Casey, supra; Commonwealth v. Butler, 99 Pa. 540. Any labored or painful course of reasoning leading to a conclusion as to the unconstitutionality of a law, and fairly leaving the question still debatable in the mind, would furnish sufficient ground to doubt the unconstitutionality asserted. 1. Section 4, of tbe act of 1885, under which these taxes are imposed, does not transcend the limitations of article IX. of the constitution. It will be seen from the language of the two sections of the article that there is no restriction upon the kinds of taxes. There is no restriction to property only; nor is there a restriction to ad valorem taxes; nor upon the methods of taxation, by prescribing that it shall be based upon the principle of valuation. But whatever taxes are imposed, and upon whatever subjects, those taxes must be uniform, and it will be noticed that the word, equal, is not used anywhere in the section. Moreover, the requirement of uniformity is limited in its application. It does not say simply, All taxes shall be uniform, but confines tbe rule of uniformity to a class of subjects only. Tbe inherent power to tax or not to tax all subjects, still remains. The principle of classification is recognized and the rule of uniformity is made applicable and confined to the classes which the legislature may select: Banger’s App., 109 Pa. T9 ; Kittanning Coal Co. v. Commonwealth, T9 Pa. 104; Kirby v. Sbaw, 19 Pa. 258; Durach’s App., 62 Pa. 491; Hammett v. Philadelphia, 65 Pa. 146; Washington Avenue, 69 Pa. 352; Weber v. Koinhard, T3 Pa. 3T0; Butler’s App., 73 Pa. 448. 2. The foregoing cases are tbe landmarks of the constitutional law of Pennsylvania relative to taxation prior to 1874. They show: (1) That equality in taxation is impracticable. (2) That classification of subjects is permissible. (3) That exemption from taxation of any class or of any portion of a class of subjects was allowed. (4) That taxation by special laws was allowed. Here the new constitution intervenes, and by §§ 1 and 2 of article IX., the following reforms are-declared: (I) That taxation by special laws is prohibited. (2) Exemption from taxation of any portion of a class is prohibited. Equality of taxation is not hinted at, and classification is the very basis of the constitutional declaration. Taxes are uniform, therefore, in tbe sense of tbe constitution, when all the members of a given class are taxed without exception. They are not uniform, if any members of tbe class are exempted. Any method, therefore, of taxing a class of subjects which was lawful before the adoption of the new constitution is lawful now, and any question as to inequality of burden upon the members of the class, resulting from the operation of a general and uniform rule of taxation, must be determined independently of its provisions: Northampton Co. v. Leh. C. & Nav. Co., 75 Pa. 461; Kittanning Coal Co. v. Commonwealth, 79 Pa. 104; Lehigh Iron Co. v. Lower Macungie Tp., 81 Pa. 482; Kelly v. Pittsburgh, 85 Pa. 170; Kirby v. Shaw, 19 Pa. 258. 3. Applying the constitutional provision in the light of the foregoing principles, we contend: (a) That the subjects of taxation in this case, to wit, loans of corporations incorporated by or doing business in Pennsylvania, have been properly grouped as a class. Classification may be based upon characteristics that describe and classify the subjects of the class, or upon the adaptability of those subjects to the methods and process involved in the act of taxation. If considered with reference to either of these principles of division, this class of loans is properly separated from loans of individuals ; classification is not a judicial but a legislative function : Germania L. Ins. Co. v. Commonwealth, 85 Pa. 515. We further contend: (b) That the taxes imposed by the act are uniform in the sense of the constitution. Granting, for the purpose of the argument, that loans issued by corporations and individuals cannot properly be separated into classes, it does not follow that because upon one division of these loans one method and means of taxation is prescribed, and upon another portion another method is applied, they are open to the objection of a want of uniformity. If there is substantial uniformity, whether in results or in methods, however different the procedure, there is a compliance with the constitutional provisions : Fox’s App., 112 Pa. 353; Hunter’s App., 18 W. N. 411; Loughlin’s App., 19 W. N. 517; State Railroad Tax Cases, 92 U. S. 575; Stanley v. Supervisors, 121 U. S. 548; Commonwealth v. Martin, 107 Pa. 194. 4. The objection that this tax is the taking of property without due process of law, in the constitutional sense, is not tenable. This objection is based upon the theory that (a), there is' no assessment provided for and (b), no notice to the tax payer of the assessment, either in the first instance or with the right of appeal. (a) There is nothing in the nature of taxation which requires all taxes to be based upon valuation. Wherever taxes are assessed upon valuation, then, as part of the process of assessment, such valuation should be made. But no assessment is required when the statute itself prescribes the amount to be paid, and this can be recovered by suit: United States v. Halloram, 14 Blatcli. 1; Weber v. Beinhard, 73 Pa. 370; Savings Bank v. United States, 18 Wall. 227; King v. United States, 99 U. S. 233; Commonwealth v. Bailroad Co., 104 Pa. 106; Maltby v. Bailroad Co., 52 Pa. 140; Del. etc. B. Co. v. Commonwealth, 66 Pa. 66; Susq. Canal Co. v. Commonwealth, 72 Pa. 72; Buffalo etc. B. Co. v. Commonwealth, 3 Brewst. 374. (6) For the reason that the amount of the tax, as well as the amount of the valuation, which elements constitute the entire case upon which the tax is claimed, are both fixed by statute, and as no hearing could change these elements or affect their application, it is no objection to the tax in question that no notice to the tax payer is provided for: Hager v. School District, 111 U. S. 701; Santa Clara Co. v. Bailroad Co., 18 Fed. B. 426; Commonwealth v. Martin, 107 Pa. 194; Mc-Millen v. Anderson, 95 U. S. 37; Armstrong v. Harmoning, 118 U. S. 194; Banger’s App., 109 Pa. 79; Davidson v. New Orleans, 96 U. S. 97. I. Section 4 of the act of 1885 violates § 1, article IX. of the state constitution. (a) Section 1, of the act, taxes all mortgages in one class, at the rate of three mills on the dollar of the value thereof. The words italicized are common to every act taxing this species of property for the past half century. “ The legislature has thus frequently defined the phrase, every dollar of the value thereof, to signify actual value, and the construction which is deducible from the continued, general and uniform practice and understanding throughout the commonwealth, is the same: Commonwealth v. Bailroad Co., 104 Pa. 98. When the legislature used the same phrase in the act of 1885, of course it intended the same signification. (i>) Sections 6 to 13 require mortgages issued by individuals and foreign corporations to be returned to local assessors and assessed at actual value, with notice to the owner and right of appeal. Section 4 requires mortgages issued by corporations doing business in Pennsylvania to be assessed at par, with no notice to the owner or right of appeal. Now, the nominal or par value of corpoiate loans is not their actual value. The former is their value in name; the latter their value in fact. It thus appearing from the fourth finding of fact by the court below, that the par value is no substantial or just measure of actual value, it follows that the act of 1885 works discrimination and lack of uniformity in several particulars. 1. The act discriminates between mortgages issued by corporations of Pennsylvania, which are to be assessed arbitrarily at their nominal value, and mortgages issued by individuals, which are to be assessed at their actual value, the value for which they would sell bona fide. But if it be urged that the legislature may tax mortgages issued by individuals, and mortgages issued by corporations, in separate classes, the answer is, (a) that they are not subject to such classification. The tax is upon mortgages, as property, and they are all subjects of one class which cannot be subdivided, (b) The legislature has not attempted such classification. ■ 2. The act discriminates also between mortgages issued by corporations of Pennsylvania, and mortgages issued by corporations of other states, but owned by residents of Pennsylvania ; between the different mortgages issued by corporations of Pennsylvania, which, while differing in actual value, as the evidence shows, from nine cents on the dollar to one hundred and fifty, are all required to be taxed at the same valuation, their nominal value; and even as between different mortgages issued by the same Pennsylvania corporation. 3. Uniformity of taxation means more than uniformity in the rate: Bank of Columbus v. Hines, 3 Ohio 1; Cameron v. Capellar, 41 Ohio 533. It means equality of taxation: Cooley, Const. Lim., 495 ; Washington Avenue, 69 Pa. 362 ; Railroad Co. v. Commissioners, 75 N. C. 475; Woodbridge v. Detroit, 8 Mich. 301; Dundee Trust etc. Co. v. Charlton, 32 Fed. R. '192; Fox’s App., 112 Pa. 337, 352. Even the rate is not uniform in a legal sense: People v. Weaver, 100 U. S. 539, 544. . “ It is perhaps vain to expect that any system of taxation shall produce exact uniformity; it is however both reasonable and possible to levy tbe taxes in suclx a manner that substantial justice and uniformity shall be the result:” Mr Justice Paxson in Fox’s App., supra. Such substantial uniformity is reached in the taxation of mortgages issued by individuals and foreign corporations, which are returned by the owners to the assessors under § 6 of the act. But under § 4, the tax payer is not permitted to make a return, and is not heard in the matter at all. II. Section 4 of the act of 1885 fails to provide for a valid assessment of corporate loans, and is substantially the same as the acts of 1879 and 1881, which, for the same reason, were declared inoperative by this court. 1. As already shown, the tax imposed by the first section of the act of 1885 upon all mortgages is a tax upon their actual value. The very foundation of taxation by value is a valid assessment: Cooley on Taxation, 259; Blackwell on Tax Titles, 114-120; Hilliard on Taxation, 290, 291; Thurston v. Little, 3 Mass. 429; Abbott v. Lindenbower, 42 Mo. 168; Brat-ton v. Mitchell, 1 W. & S. 810 ; Miller v. Hale, 26 Pa. 432; Commonwealth v. Blair Co., 2 Pears. 416, 419. A mere ascertainment of the nominal value of corporate loans is no assessment of the actual value, which alone is made taxable by § 1 of the act: People v. Assessors, 2 Hun 585; People v. Commissioners, 4 Hun 595. This court has already fully considered the question of assessment in Commonwealth v. Railroad Co., 104 Pa. 89, involving the validity of the acts of 1879 and 1881, and has declared that a mere ascertainment of the nominal value of mortgages is not a legal assessment of them. III. The method of assessment provided by § 4 of the act of 1885, requires the withholding from the amount due on a contract of am arbitrary sum of money, claimed as a tax, without reference to the value of the property, without notice to the owner', and without any right of appeal or remedy, if he had notice; indeed, without even ascertaining the owner. It is therefore violative of the constitutional provision that no person shall be deprived of his life, liberty or property without due process of law: Section 9,. article I., constitution of Pennsylvania ; article V. and § 1, article XIV., amendments to the constitution of the United States. 1. A mere reference to the authorities is sufficient: Cooley on Taxation, 265-6; Philadelphia v. Miller, 49 Pa. 448; Thomas v. Gain, 35 Mich. 155 (24 Amer. R. 535) ; Stewart v. Palmer, 74 N. Y. 186; Ervine’s App., 16 Pa. 256 ; Davidson v. New Orleans, 96 U. S. 97; State v. Readington Tp., 36 N. J. L. 70; San Mateo Co. v. Railroad Co., 13 Fed. R. 722. “No tax is due until it is assessed: ” Miller v. Hale, 26 Pa. 432; Commonwealth v. Blair Co., 2 Pears. 416, 419; Abbott v. Lindenbower, 42 Mo. 168; Thurston v. Little, 3 Mass. 432; Hilliard on Taxation, 290-1; Blackwell on Tax Titles, 114, 120; Cooley on Taxation, 259. 1Y. The corporation has the legal right to interpose the defence of the unconstitutionality of the act, and the invalidity of the settlement made under it. 1. The right of appeal from the settlement of the auditor general is conferred by § 11, act of March 30, 1811, 5 Sm. L. 230. For more than three quarters of a century it has been the custom to enter appeals in the manner thus provided, and in all that time it has never been doubted that the party appealing might question the constitutionality of the act under which the assessment was made. If an assessment of. taxes be made in violation of law it is a void act, and the collector in enforcing its collection is a trespasser : Tuttle v. Everett, 51 Miss. 27 (24 Amer. R. 622) ; Cooley on Taxation, 562; Moore v. Allegheny, 18 Pa. 55 ; Ruth’s App., 10 W. N. 498'; People v. Mygatt, 45 N. Y. 653; Newman v. Supervisors, 45 N. Y. 653; Union N. Bank v. Mayor, 51 N. Y. 638; Bank of Commonwealth v. Mayor, 43 N. Y. 184. 2. The corporation has a direct interest in the constitutionality of the act; it is not a tax collector in any proper sense of the word: People v. Halsey, 53 Barb. 547. An unconstitutional act is not a law: Norton v. Shelby Co., 118 U. S. 425. The right of the corporation to raise the question was recognized in State Tax on Foreign-held Bonds, 15 Wall. 300; Commonwealth v. Railroad Co., 104 Pa. 89. V. The claim of the commonwealth includes tax on $415,000 of bonds owned by corporations of the state of Pennsylvania, upon which no tax is imposed by the act of 1885 : Fox’s App., 112 Pa. 337; Hunter’s App., Guarantee Trust Co. v. Loughlin, and Del. M. S. Ins. Co. v. Loughlin,18 W. N. 411; Loughlin’s Appeals, 19 W. N. 517.
123 Pa. 626Commonwealth v. City of Chester (1889)
ERROR TO THE COURT OE COMMON PLEAS OE DAUPHIN COUNTY. No. 31 May Term 1888, Sup. March Term 1887, C. P. On December 13, 1886, the auditor general and state treasurer of Pennsylvania, upon a return made under protest by the treasurer of the city of Chester, made the following settlement of account for taxes : Chester City, Delaware county, In account with the CommoNwealth oe Pennsylvania, Dr. For tax on loans, per act of June 80, 1885, for the year ending first Monday of November, 1886, as per report herewith filed. Loans, $406,500; tax, 8 mills,.$1,219.50 Deduct 5 per cent, treasurer’s commission: on $1,000.50,.$50,00 on $219.50,. 2.20-52.20 Due commonwealth,.$1,167.30 The city thus charged appealed from said settlement specifying objections thereto which were in substance as follows : 1. The tax claimed in said settlement is void for want of an assessment, and because it is contrary to article IX., § 1, of the constitution of Pennsylvania, which provides that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the same; because no assessment of the said bonds is provided by law, and no notice or opportunity is given to the bondholders to be heard, either before or after the tax is paid, concerning its validity. 2. The report made by the treasurer of the city of Chester upon which the settlement appealed from of December 18. 1886, purports to have been made, was made under protest in the words and figures following, to wit:.The city of Chester claims that this return does not constitute a valid assessment of the bonds therein set forth, and that the same furnishes no legal basis for the collection of a tax upon said loans, by requiring appellant to withhold said tax from the interest payable to the resident holders thereof, as claimed in the settlement of account herein appealed from. 3. Neither the act of June 30, 1885, nor any other act, authorizes the auditor general and state treasurer to settle an account against the appellant, the city of Chester, for said tax on loans in the said settlement of account of June 9, 1885. 4. If any tax on said loans of the city of Chester can lawfully be charged by the commonwealth to the appellant, under any act of assembly, the amount of said tax cannot exceed the rate fixed by the act of June 30, 1885, to wit: at the rate of three mills on every dollar of the interest paid on said bonds. 5. The interest on said loans of the city of Chester varies from four to six per centum, and the same mature at different times. By reason of the difference in the rate of interest, and the time of maturity of said loans, the market value thereof varies. 6. The commonwealth claims that all of the loans of the city of Chester held by residents of the state are taxable to said resident bondholders at the nominal or face value of said bonds, without regard to the variations in the real value of the respective series of bonds arising from difference in the rates of interest payable thereon, and the time of maturity thereof. 7. Appellant further says, that the act of June 30, 1885, and any other act, in so far as they require appellant to retain from the interest payable to resident holders of bonds of the city of Chester, the aforesaid state tax on the nominal value thereof are void, because, the said legislation and attempted taxation are repugnant to article XIV., § 1, of the constitution of the United States, which provides: “ .... Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Appellant further says, that the said requirement is a taking of the property of said bondholders without “ due process of law,” and denies to said bondholders “ the equal protection of the laws ; ” that said acts of assembly were forthwith avoided and made null and void by the adoption of the said fourteenth amendment to the constitution of the United States, and by virtue of article V. of said constitution of the United States. The cause was submitted to the decision of the court, without trial by jury, under the act of April 22, 1874, B. L. 109, and after the hearing was concluded, the court, SniOKTON, P. J., filed the following decision. This case was tried without a jury by agreement of parties, as provided by the act of April 22, 1874. It originated in an account settled December 13, 1886, by the auditor general and state treasurer, against the defendant for “ tax on loans, per act of June 30, 1885, for year ending first Monday of November, 1886,” from which settlement defendant entered an appeal to this court as authorized by the act of 1811 relative to public accounts. We find the facts to be at follows : 1. Defendant is an incorporated city in Pennsylvania; it has a valid indebtedness of $406,500, evidenced by registered bonds. Of these, bonds to the nominal amount of $55,500 bear interest at the rate of six per centum per annum; $231,000 at the rate of five per centum, and $120,000 at the rate of four per centum. 2. The actual market value of the bonds bearing interest at the rate of six per centum per annum was, during the year included in the settlement, sixteen per centum more than the actual value of those bearing interest at four per centum, and three per centum more than those bearing interest at five per centum. 3. [The report of the bonded indebtedness of the city, defendant, made by its treasurer contained the following: “ I Henry Hinckson, treasurer of the city of Chester, have made this report on the bonded indebtedness of the city of Chester, and have filled up the blanks herein at the request of the auditor general of the state of Pennsylvania, and by advice of counsel 1 hereby protest against being required to make this return. And I further protest that I have no power to make any assessment of the said bonds for taxation, and I further state that I have made no assessment thereof and have not been authorized by law so to do. I further protest that the tax sought to be levied upon the bonds issued by the city of Chester through me, by means of this report and a settlement made by the auditor general and state treasurer thereon against me for said tax, is void under the constitution of the United States and of the state of Pennsylvania for want of valid assessment and for inequality.” And we find as a fact that he made no assessment.] 1 The settlement in this case is stated therein to be made under the act of June 30, 1885. That act makes “ all mortgages, money owing by solvent debtors, whether by. bond or judgment,.all public loans or stocks whatever, .and all other moneyed capital in the hands of individual citizens of the state, .taxable for state purposes, at the rate of three mills on the dollar of the value thereof annually.” This language is undoubtedly comprehensive enough to include municipal bonds ,• but there is nothing to be found in this act which authorizes the tax to be imposed in the manner attempted in this case. The fourth section makes it the duty of “ the treasurer of each private corporation,” to assess the tax imposed by the act upon the nominal value of the evidences of indebtedness of •the corporation, and to retain the tax out of interest paid; but this applies to “ private corporations ” only; and there is no reference whatever anywhere to municipal corporations, except in the proviso to § 6, which directs “ that the taxable person shall not include ” in the return he is required to make of the “ aggregate amount of all matters owned by him, made taxable by this act ” upon the blank to be furnished to him by the local assessor, the obligations of public.corporations, the tax on which is required by law to be collected from the holder of such obligations and paid into the state treasury by the corporation.” This proviso excludes the presumption that the tax on municipal bonds is to be assessed and collected by the local assessors and collectors, but it does not aid us in determining how it is to be assessed and collected. It is contended, however, on behalf of the commonwealth, that the mode of assessment and collection is prescribed by § 42 of the act of 1844, P. L. 501, the language of which is as follows : “ That if any county shall pay into the state treasury its quota of tax levied on its said adjusted valuation, fifteen days prior to the first day of August, in any year, such county shall be entitled to an abatement of five per cent on the amount so paid; and any state tax remaining unpaid by any individual or corporation after said tax is due and payable by said county to the commonwealth, shall bear an interest of six per cent, and be a lien on the estate on which it is charged, till fully paid and satisfied. And that it shall be the duty of the treasurer of each county, incorporated city, district and borough of this commonwealth, on the payment of any dividend or interest, to any Ixoldor or agent claiming tbe same, on any scrip, bond or certificate of indebtedness issued by said incorporated city, district and borough aforesaid, to assess the tax herein made and provided for state purposes, upon the nominal value of each and every said evidence of debt; said tax to be deducted by the said treasurer, on the payment of any interest or dividend aforesaid, and the same shall be held by him, until paid over to the state treasurer; and the said treasurer shall be subject to the same penalties and liabilities now prescribed by existing laws in relation to taxes on bank dividends.” Defendant contends that if this be tbe act which the tax is claimed and settlement made, it cannot be sustained, because the assessment provided for is to be upon the nominal and not upon the real value of the evidences of indebtedness, and that therefore the taxes are not uniform as they are required to be by the constitution. We think this objection is well founded for the reasons stated in the opinion recently filed in Commonwealth v. Delaware Division Canal Company, No. 170 September Term 1887, Dauphin county Common Pleas, which, without repeating, we here adopt. It is undoubtedly true that the want of uniformity shown by the facts proved in that case is much more glaring than that which could be inferred, if the facts found in this case were alone in view; but the constitutionality of an act of assembly cannot be determined by, nor depend upon, tbe facts proved in a particular case. If the inevitable, necessary effect of administering a taxing act in tbe manner in whicli the legislature directs it to be administered, be to produce want of uniformity in the taxes, the act is unconstitutional and cannot bo applied to any case. “ The constitutional validity of a law is to be tested, not by wbat lias been done under it, but by what may, by its authority, be done:” Stuart v. Palmer, 74 N Y. 183 (30 Amer. R. 289). We need not stop to discuss the objection that the assessment is not valid without a valuation. It is alluded to in the opinion above cited, and it is, at any rate, involved in the objection of want of uniformity; for, if the assessment at tbe nominal value result in uniformity of taxes, this result would show that it was made on a substantially correct valuation; and if tlie necessary result is want of uniformity in the taxes, they cannot be sustained even if such an assessment be considered a valuation. Defendant contends, further, that if this tax be claimed under said act of 1844, it is illegal, and the act is invalid, because it does not provide for notice to, and right of appeal by the bondholder, and that no notice or opportunity for appeal was actually given. It is conceded that this is a tax upon the bondholder, and that it is payable by him, in the first instance, out of the interest due upon his bonds. He has, therefore, the same rights that other tax-payers have with respect to notice and opportunity to appeal. We do not consider it necessary to enter into any elaborate discussion to show that a tax-payer has the constitutional right to notice and opportunity of appeal, before he becomes finally bound for the tax. We shall merely refer to a few cases and opinions of judges, on this subject, out of a multitude that might be cited. The principle that, as was said by Ag-NEW, J., in Philadelphia v. Miller, 49 Pa. 448, “Notice or at least the means of knowledge is an essential element in every just proceeding which affects rights of persons or property,” is fundamental, and is applicable to tax proceedings by its terms, because they do affect lights and persons and property. In tax proceedings “ it must be a matter of the utmost importance to the person assessed that he should have some opportunity to be heard before the charge is fully established against him;.and we should say that notice of proceedings in such cases, and an opportunity for a hearing of some description, were matters of constitutional right: ” Cooley on Taxation, 265-6. “ Many provisions in our statutes, regulating the imposition of taxes, must be considered directory merely. Some are doubtless conditions, such as those which are intended to secure an equality of taxation or burdens among the citizens; that is, that the citizen may know for what he is taxed; know his valuation, and have notice of the time and place of appeal: ” Insurance Co. v. Yard, 17 Pa. 338. In Stuart v. Palmer, supra, a law authorizing an assessment without providing for notice and right of appeal was held unconstitutional and void. In this case the subject is fully discussed and many authorities are cited. See also Thomas v. Gain, 35 Mich. 155 (24 Amer. R. 535) ; County of San Mateo v. Southern Pacific R. Co., 13 Fed. R. 722. The nature and form of the notice is very much in the discretion of the legislature, but, as in the act of 1844, there is no notice whatever, of any kind, provided for, it must, in our opinion, for that reason, be declared unconstitutional. We do not, in thus deciding, overlook the fact that this section of this act has, apparently, had the sanction of the courts in several cases. We do not understand, however, that this precise question has ever been authoritatively considered or decided, at least since the adoption of the constitution of 1874. What we have said thus far has been said upon the assumption that § 42 of the act of 1844 is still in force. But we are by no means certain that this is the case. - The “ Act imposing additional taxes for state purposes, and to abolish the revenue board,” approved April 30, 1864, P. L. 219, contains the following: [§ 4, quoted at length.] This section, it will be seen, requires the treasurers of municipalities to make return of the indebtedness and rate of interest, as of t'he first day of January in each year; and requires the auditor general to “ fix the state tax due and unpaid,” on the receipt of said returns, and to transmit notice of the amount to the treasurers, who are to deduct the said state tax on payment of any interest on debts due by the municipality. The intention of this would seem to be that with the amount of the indebtedness before him and the rate of interest which it bears, the auditor general is to “ fix the state tax due and unpaid,” that is, to value and assess the evidences of indebtedness, and transmit notice of the amount to the treasurers, that they may know what sum to deduct when paying interest. To say the least, the language used would bear this construction ; and, if this be its meaning, it is plainly inconsistent with § 42, of the act of 1844, which directs the treasurer to assess the tax on the nominal value of the evidences of indebtedness. But, even if this be the true construction of the act of 1864, which we do not decide, it will not help the case of the commonwealth, for in that event the proceedings in this case are fatally defective. No report was made, as of the first of January, in any year, to the auditor general; nor did he, so far as lias been shown, fix tbe amount of tbe tax and. transmit tbe required notice to the treasurer, and therefore tbe tax has not been assessed as required by tbe act. And even if all this bad been done, tbe fatal objection of want of notice to tbe bondholders and opportunity to appeal, would still remain. There is also tbe additional objection to both of these acts that they require tbe assessment of the tax upon, and its retention from the interest on, all tbe evidences of indebtedness of tbe municipalities, without regard to whether they are owned by residents of the state or non-residents, although it has been determined by the Supreme Court of the United States that non-resident bondholders cannot be taxed: State Tax on Foreign-held Bonds, 15 Wal. 800. The constitution, besides requiring taxes to ordains, also, that they “shall be levied and collected under general laws.”. We have grave doubts whether both § 42 of the act of 1844 and § 4 of the act of 1864 are not repugnant to this clause. We know, not'what it means, nor to what it can be applied, unless it be that all taxes on the same class of subjects must be levied and collected under the same general laws; that the taxes on part of a given class of subjects cannot be levied and collected under a law which applies to them only, and prescribes a mode in which they are to be levied and collected, different from that in which the taxes on the remaining subjects of the same class are to be levied and collected under the general laws. If this be so, and if municipal loans be a part of the class of subjects described in § 1 of the act of 1885 as “all mortgages, money owing by solvent debtors, whether by promissory note, penal or single.bill, bond or judgment, .and all public loans and stocks whatsoever .and all other moneyed capital in the hands of individual citizens;” then it would seem that, as the taxes on these municipal loans are not levied and collected under the general laws, there is a violation of the mandate of the constitution in the attempt to levy and collect them under these special laws. The constitution forbids the legislature to “pass any local or special law.regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” Several cases have arisen calling for a construction of this clause, and it has been shown, in deciding them, that a law which affects part of a class only is a special law. Thus it was said by PaxsoN, J., in Wheeler v. Philadelphia, 77 Pa. 838, on page 351: “We do not think the classification of cities, as contained in the act of May 23,1874, offends against any constitutional provision.” “This construction does not open the door to special legislation. It permits legislation for classes, but not for persons or things of a class.” To the same effect, Scowden’s App., 96 Pa. 422; and McCarthy v. Commonwealth, 110 Pa. 243. The constitution of New Jersey contains the same inhibition as to regulation of affairs of counties, etc., and the same view of what constitutes special legislation has been taken by the Court of Errors and Appeals of that state. Thus in State v. State Board of Assessors, 48 N. J. L., it is said: “ Interdicted local or special laws are those that rest on a false or deficient classification. Their vice is that they do not embrace all of the class to which they are naturally related.” And in the same case, which is a tax case, the court say the same rule for determining what is general and what is special legislation must- be applied to the constitutional mandate that property must be assessed for taxes under general laws. These considerations seem to make it at least doubtful whether these sections of the act of 1844, and the act of 1864, are not, both, unconstitutional and void, because they are special laws for levying and assessing taxes. The case before us does not require us to resolve this doubt, and we therefore leave it as one of the least difficult of the many questions that present themselves whenever the revenue acts are presented for consideration. Almost the only thing that is certain about these tax laws as they now stand on our statute books, is that they are a rude undigested mass, most of them without form, and many of them void, in the legal sense of that word. For the purposes of this case we have reached the following CONCLUSIONS OK LAW: 1. That the settlement appealed from in this case is illegal and invalid, because the taxes claimed therein are not uniform as required by article IX., § 1, of the constitution.3 2. That said settlement is illegal and invalid, because the laws under which it was made and under which the taxes embraced in it are claimed, do not provide for any notice to, or right of appeal by, the owners of the municipal loans, who are claimed to be liable for the tax.3 3.That defendant is entitled to judgment in its favor.4 J udgment is therefore directed to be entered in favor of defendant unless exception be filed within the time limited by law. To the foregoing decision the commonwealth filed exceptions specifying that the court erred: 1. In the third finding of facts.1 2. In the first conclusion of law.8 3. In the second conclusion of law.3 4. In the third conclusion of law.4 5. In not directing judgment for the commonwealth.5 On May 18, 1888, the said exceptions were overruled and judgment directed to be entered in favor of the defendant. The commonwealth then took this writ assigning as error: 1-5. The overruling of said exceptions.1 to 5 1. The settlement against the city of Chester purports to be made under the act of June 30, 1885, P. L. 193. If this be intended to mean, by virtue of a method or machinery contained in the act of 1885, it is simply an erroneous recital, and does not affect the validity of the assessment, if it be properly made under some existing prior law. It may be considered as meaning and it really does mean, that the rate is fixed according to the three mills rate prescribed under the act referred to ; and it is contended that the settlement was properly made under the provisions of § 42, act of April 29,1844, P. L. 501, at the rate which is prescribed for all mortgages, loans, etc., in § 1, act of 1885. 2. The court refers to § 4, act. of April 30, 1864, P. L. 219, as bearing the construction that it was intended to supply or supersede the provisions of § 42 of the act of 1844. The question of the relation of the act of 1864 to the act of 1844 has been very frequently before the courts. The very point made here was made in Commonwealth v. Martin, 107 Pa. 185, and was directly before the court, fully argued, necessarily considered, and directly involved. We refer to pages 46 and 47 of the paper book of Martin, plaintiff in error in one writ, to show that the precise point was pressed. Had the position taken been correct, no judgment whatever could have been entered for the commonwealth. The tax in that case was settled according to the practice that had then long prevailed, and in precisely the same manner in which the tax was settled in the present case. 3. The municipality cannot make the objection, suggested by the court below, that these acts “ require the assessment of tax upon and its retention from the interest of all evidences of indebtedness of municipalities, without regard to whether they are owned by residents of the state or non-residents,” etc. Having returned the indebtedness without specially returning the amount held by non-residents, it does not and cannot fairly raise the question, in any shape, of the lights and relations of the municipalities, as the collectors to the state. The .mere fact that the statutes impose generally a tax upon the bonds or indebtedness of municipal corporations, can only mean such taxes as they can legally collect: Commonwealth v. Standard Oil Co., 101 Pa. 119, 146. For the argument of the counsel upon other points involved, see argument for the plaintiff in error in Commonwealth v. Del. Div. Canal Co., ante, 594. 1. The tax is void, both under the federal and state constitutions, whether imposed under the act of 1885, or 1864, or 1844, for the same reasons that invalidated like taxation under the acts of June 7, 1879, and June 10, 1881. Commonwealth v. Lehigh V. 11. Co., 104 Pa. 106, is not an authority for the proposition that a lawful municipal loan tax may be collected under § 42, act of 1844. The question was not before the court. Commonwealth v. Martin, 107 Pa. 185, cannot be reconciled with Commonwealth v. Lehigh Y. 11. Co., supra. Both cannot be right, and the Dauphin Common Pleas has finally seen this and reversed Commonwealth v. Martin. 2. The tax is void for want of a valid assessment. A very little reflection will sbow that the legislature cannot, under the guise of prescribing a rule of valuation, give to any kind of property an artificial value for the purpose of. taxation: Railroad v. Commissioners, 75 N. C. 475; Assessment Board v. Railroad Co., 59 Ala. 551; People v. Hastings, 29 Cal. 449; Nevada v. Estabrook, 3 Nev. 179 ; Danville v. Shelton, 76 Va. 325; Pickard v. Pullman etc. Co., 117 U. S. 43; People v. Lothrop, 3 Col. 456. 3. The tax is void for want of notice to the tax-payer, i. e., the bondholder, under any of the acts of 1885, 1864, or 1844. It is an attempt upon the part of the commonwealth to save trouble and expense, and also, in order to reach more bonds, to levy taxes upon A. by means of a so-called assessment to B. There is not even statutory notice to the bondholder; nothing but a legislative fiat directing the treasurer of the municipality to assess the bonds at their nominal value at any time during the fiscal year. On this point and the want of “ due process of law,” under amendment XIV., of the constitution of the United States, the following cases are referred to: Brown v. Hummel, 6 Pa. 90; Dartmouth College Case, 4 Wheat. 581; Stuart v. Palmer, 74 N. Y. 191 (30 Amer. R. 289) ; San Mateo Co. v. Railroad Co., 13 Fed. R. 722; Davidson v. New Orleans, 6 Otto 104; Hurtado v. California, 110 U. S. 516. 4. The act of June 30, 1885, attempts to invalidate the contract with the bond owners. The city agrees with its bondholder to pay four, five, or six per cent interest. When he comes to get his interest, he is asked to be satisfied with less, because the legislature has so willed. This interest money, as soon as it is set apart for the payment of the bondowner, becomes and is his individual property, and when it reaches him, then the commonwealth may tax it; but until it reaches him, and becomes a part of his estate, it cannot be taxed to him indirectly: Murray v. Charleston, 6 Otto 444; State Tax on Foreign-held Bonds, 15 Wal. 320. 5. The settlement should have been made against the treasurer of the city, and not against the municipality as such. On its face the settlement is made under the act of 1885, and the court has decided and the attorney general concedes that the claim is not under this statute. If the state is to fall back upon the act of 1864, it is obvious that none of the requirements of that act have been complied with, either by tbe municipality or by tbe state. Consequently, tbe state is remitted to § 42, act of 1844. But the section referred to puts the duty of retaining tbe tax on the treasurer, as such, and not on the municipality in its corporate capacity. The settlement is therefore void, as made against the wrong party: Commonwealth v. Morrison, 1 Pears. 317. But, according to all the well-received rules of construction, the act of 1864 must be held to have repealed § 42 of the act of 1844. The act of 1864 provides a system for taxing municipal bonds at a time and in a manner different from that provided by the act of 1844. Both acts cannot possibly be pursued, and hence, as the whole ground is covered by each, the last act must prevail.