124 Pa.

Volume 124 — Pennsylvania State Reports

71 opinions

124 Pa. 1Hennershotz v. Gallagher (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY. No. 307 January Term 1886, Sup. Ct.; court below, No;648 June Term 1878, C. P. No. 1. In an action of covenant instituted on August 1, 1878', by A. L. Hennersliotz against A. J. Gallaglier, tbe plaintiff’s narr set out two sealed agreements for the purchase and sale of real estate. Of these agreements, The first, dated October 2, 1876, was between A. L. Hennershotz of the first part, and A. J. Gallagher of thesecondpart, and recited the ownership of said Hennershotz of three several lots in West Philadelphia, except as to an undivided interest therein held by a minor, and witnessed that said Hennershotz agreed to sell,- “ upon the completion of the title to the said premises by the Orphans’ Court aforesaid,” and that the said Gallagher agreed to buy the said several lots, subject to certain mortgages, and to pay therefor the sum of $112,000, payable as follows: One note at four months for $5,000; “four farms in Noble and Washington counties, Ohio, containing seven hundred and sixty-three acres, as per deeds, at $100 per acre; ” certain articles of personalty; certain stock; and certain merchandise making up the balance of said consideration ; title papers for the lots to be submitted for examination, and the “note, farms, whiskey, horses, wagons, harness and stock, to be delivered as the title papers are pronounced perfect and marketable by the said Charles H. Masson conveyancer : title papers to the said farms to be placed in the hands of A. L. Hennershotz for examination, said farms to be clear of all incumbrances, and to be pronounced so by said A. L. Hennershotz.” The second contract, dated July 17, 1877, was between A. J. Gallagher of the first part, and A. L. Hennershotz of the second part, and witnessed that said Gallagher had sold to said Hennershotz “upon the conditions hereinafter mentioned” the several tracts of land described in certain deeds to said Gallagher, with the place of record thereof mentioned, containing in the aggregate seven hundred and forty-seven and two thirds acres more or less: “ And the said Anthony J. Gallagher, for himself and his heirs, executors, and administrators, hereby agrees to convey the same free and clear of all encumbrances unto the said A. Lucius Hennershotz, his heirs and assigns, at any time within one year from the date hereof, for the consideration and upon the payment of the sum of $6,000, with interest thereon at the rate of twelve per cent per annum, from the date hereof until the payment of the same. And it is further agreed by and between the said parties, that in case the said A. Lucius Hennershotz, his heirs and assigns, should fail to take the said several premises within the time and upon the terms above specified, then this agreement to be null and void; and the said Anthony J. Gallagher, his heirs and assigns, shall have and hold the said several premises free and discharged from any liability under this agreement.” Following the foregoing agreements, which were both set out in full and were unconnected with each other by internal reference, the narr proceeded to aver that the plaintiff had conveyed to the defendant the West Philadelphia lots and had fully complied with all his covenants in the first-mentioned agreement contained; that within the time limited and appointed for the same to be done, he had tendered to the defendant the sum of $6,000, with the stipulated interest, and had performed all his covenants in the last-mentioned agreement contained, yet the defendant had not conveyed to the plaintiff, but in bad faith, etc., had refused to convey to him the lands described in said agreement, etc. The defendant pleaded, covenants performed, covenants performed absque hoc. At the trial on May 11,1885, the evidence adduced by the plaintiff was in substance, as follows : When the plaintiff came to close his own purchase of the West Philadelphia lots, he found that it was necessary for him to pay more of the consideration in cash than his contract with the Bradley heirs, his vendors, called for. The defendant agreed to advance him the money, $6,000, which was the money mentioned in the agreement of July 17, 1877. The plaintiff testified: “ The defendant loaned the $6,000 to me and gave me a year to repay. The $6,000 was paid over to the Bradley heirs. Defendant received the title to my properties in West Philadelphia. The title was accepted by the defendant and approved by Mr. Masson. I received all but the Ohio farms. The security I gave the defendant for the loan was the farms.” He then proceeded to testify to efforts made to meet the defendant, to tender the $6,000 and interest, but thatthe defendant kept out of his way so that he did not meet him until April 17, 1878, when the defendant refused the money, saying he was too late. On cross-examination, the plaintiff testified: “ I called it a loan from the defendant to me, because he loaned it on the security of the farms. We fixed $6,000, because he had advanced that amount.” The defendant testified, in liis case in chief: “A short time before conclusion of first agreement, plaintiff said he needed money to carry it out. I said to him, Well, throw out the Ohio farms and I will give you in lieu of them $6,000. After it was settled, he said, Will you let me have the farms back? I said yes, if you will pay in a year the $6,000 and one per cent interest.” He denied that he had avoided a meeting with the plaintiff when the latter wished to tender the money, and testified that plaintiff had come to him and asked for an extension of the time ■: “I replied, I wont extend. Plaintiff said, I wont take them. No tender of money.” Under objection and exception to plaintiff, the defendant put in evidence certain receipts for taxes for 1878, upon the Ohio lands. These receipts showed an assessed valuation of the lands of over $12,000. At the close of the testimony, the court, Biddle, J., charged the jury as follows: [Plaintiff contracted to sell the West Philadelphia lands to the defendant. The owner of part of the tract had died and the heirs of this decedent would not accept what the ancestor had agreed to take. Plaintiff then told the defendant that the transaction must fall through if he could not get about $6,000, which was necessary to pay off taxes and other incumbrances. The defendant said, I will advance $6,000 and we will drop the Ohio farms out of the bargain. This was done. Plaintiff then drew up another agreement to enable him to purchase the Ohio farms. This was an entirely new and distinct transaction, because it would be incredible, if the four farms were worth the $76,000 mentioned in the first agreement. In these bargains, however, it depends upon what you get in exchange, as a man may sell his horse for $1,000 and get two dogs valued at $500 each. Plaintiff was told that the whole rent of the farms was about $700, and it is therefore almost incredible that they thought them to be worth $76,000 in cash or its equivalent. After the first agreement had been fully completed, the second paper was made, by which the plaintiff was to purchase the farms for the price of $6,000.] 1 Plaintiff said that he tendered the $6,000 after some difficulty in finding the defendant. The defendant denies this and says that plaintiff, so far from tendering the money, asked for more time. Mr. Dwyer swears also to this. Defendant said he refused another extension of time. Plaintiff admits that he asked an extension, but says it was in June. Of course, if the plaintiff made no tender during the year stipulated in the agreement, your verdict should be for the defendant. As to the tender, it is proper to say that it is the duty of the plaintiff to be prepared to make a full tender, and it was, therefore, plaintiff’s duty to tender the whole amount that was due under the agreement; but if the defendant kept out of plaintiff’s way after agreeing to meet him, he cannot take away plaintiff’s rights by doing so; and, if one should refuse the tender on the ground that it was too late, before you produce the money to make the tender, he would afterwards not be permitted to say that the amount was not a true one. In this case the defendant denies that any tender whatever was made, and you must determine that fact under the evidence. The next question is as to the damages. [The rule as to the damages is, what is the value of the land at the date the deed is to be delivered? An if you find that there has been no rise in value of the farms since the date at which the deed for the same should have been delivered, you should find a verdict for nominal damages, that is to say, for fifty cents or a dollar.] 3 [If the property appreciates, plaintiff can recover the difference in value; but if it depreciates, plaintiff is not injured, nor can he recover.] d [There is no evidence here to show in what or in how much the plaintiff was damaged, and, therefore, your verdict should be for nominal damages if you find a tender was made.] 5 I am requested by plaintiff to charge: If the jury find from the evidence that plaintiff faithfully carried out the agreements of October 2, 1876, and July 17, 1887, and that defendant fraudulently refused to convey to plaintiff the premises described therein, the plaintiff can recover the amount paid for said premises, less the $6,000 and interest, stipulated in said last agreement. Answer: I decline to so charge.8 The jury returned a verdict in favor of the plaintiff for fifty cents. A rule for a new trial having been discharged, judgment was entered upon the verdict, when the plaintiff took this writ and assigned as error: 1. The part of the charge embraced in [ ] 1 2. The answer to the plaintiff’s point.3 8-5. The parts of the charge embraced in [ ] 3 *° 5 .
124 Pa. 10Appeal of Coggins (1889)
FROM THE DECREE OF THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 98 January Term 1888, Sup. Ct.; court below, No. 287 July Term 1878, O. C. On June 8, 1886, was filed the final account of Passmore Williamson, executor and trustee under the will of Thomas Williamson, deceased. Tbis account was called for audit on July 8, 1886, when tbe following facts appeared: Thomas Williamson died testate on August 26, 1871, leaving a widow and four ebildren, Passmore Williamson, Mrs. Mary W. Coggins, Mrs. Anna W. Stackhouse and Mrs. Plicnbe W. Eldridge; and eleven grandchildren, four of whom were children of Passmore Williamson, four of Mrs. Stackhouse, one of Mrs. Eldridge, and two of Mrs. Coggins. Annie P. Cog-gins, one of the children of Mrs. Coggins, was born June 28, 1857, and died without issue on May 8, 1881. Paschal Cog-gins, the husband of Mrs. Coggins, died November 17, 1883. At the date of this proceeding the testator’s widow was dead, and there were then the ten grandchildren living, the most of whom were over twenty-five years of age. None had reached that age at the testator’s death. No grandchildren had been born after testator’s death. The will of Thomas Williamson, dated September 12, 1869, after giving certain legacies, devised and bequeathed the residuary estate to his son Passmore Williamson, his heirs, executors and administrators, but nevertheless in trust to manage the whole thereof carefully so as to'preserve and keep the same productive of income; to collect and receive the income thereof and after deducting taxes, cost of repairs, and necessary expenses including a commission, the clear net income to pay over in half-yearly payments : One equal fifth part thereof to his wife, one other equal fifth part to each of his three daughters naming them, and the other equal fifth part to keep and retain to his own use : “ And in all cases, payments of income to each of my said daughters shall be deemed to be for her sole and separate use, free from the control and without liability for the debts, contracts, oPengagements of her present or any future husband; and upon and after the decease of my wife, to continue the management, as aforesaid, for the benefit of my said four children, and so distribute and pa3r the whole net income of my residuary estate as that each of them shall receive an equal fourth part thereof, in half-yearly payments, from time to time during his and her respective natural fife; and, upon the decease of either one of my said children, and successively of each of them, then as respects one equal fourth part of the corpus or principal of my residuary estate, to and for the only proper use of his or her child, or all of his or her children, if more than one, who shall have attained, or shall attain, the age of twenty-five years, and the issue of any such who shall have died, or shall die, under that age leaving issue, in equal shares ; so, however, that the issue of an3r such deceased child, if more than one person, shall take equalty among them' such share only as their parent would have taken, if living; but, if either of my said children shall die without leaving a child, or issue of a child, him or her surviving, then as respects the share of any residuary estate above’ limited to the use of his or her child or children, I will and direct shall be held for the equal use and benefit of my other children, and their respective issue, upon and subject to the trusts and limitations hereinbefore expressed and contained.” By a codicil to said will, dated September 80, 1870, it was provided: “ That the priiicipal proceeds of all the residue of my estate, real and personal, other than and exclusive of my children’s indebtedness 'to me, or that of either of them for advancements, etc., as shall be represented and charged in my ledger accounts, shall be reserved and preserved for all my grandchildren in equal shares per capita; and therefore I will and direct that when, according to the limitations and provisions of my said will, any one, and successively as each, of my grandchildren shall become entitled to receive his or her equal portion of my estate, the same shall be determined and limited by the quotient of the whole reserved principal, divided by the whole number of my grandchildren then living, and the issue of such of them as shall have previously died leaving issue: Provided always, that the issue of my deceased grandchild, if consisting of several persons, shall together represent the interest their deceased parent would have been entitled to if living, and shall be counted as one person only in the division aforesaid; and also, if after any one or more of my grandchildren shall have received his, her, or their respective portion of my estate, ascertained as aforesaid, one or more of the others of them shall die without issue surviving, in such case I direct that so much and such portion of my estate as he, she, or they who shall have died without issue would have been entitled to receive if living, shall go and be payable in equal shares to all the others of my grandchildren living, and the issue of any of them then dead, at the times in and by my will specified and limited.” This codicil further provided, as to the children of Mrs. Stackhouse, that if their father should survive their mother, no part of their portions, beyond what was necessary for their comfortable support, should be paid to them during his lifetime. In the account filed, there was a balance shown of $48,458, due the estate as of the principal thereof. On the credit side, was an item for loss on investments of $114,944.56. It was admitted that this latter amount had been lost by the accountant in stock speculations and investments in unauthorized securities. The credit claimed was therefore disallowed, and being added to the balance shown by the account, made the balance of the principal of the estate, $163,397.56. On behalf of Mrs. Mary W. Coggins, it was claimed that one fourth of this balance should be awarded to her, on the ground that the limitation of the remainder to the grandchildren of the testator was void, because within the rule against perpetuities. On November 1, 1886, the auditing judge, Hanna, P. J., filed an adjudication, which after stating the facts proceeded: The question thus presented is whether there is a valid trust under the will of the testator. By Ms will, after certain specific bequests, he devised and bequeathed all the residue of his estate to accountant in trust, the duties of which, it needs no authorities to establish, clearly constituted and created an active trust; the net income to be divided into five shares, one of which to be paid to testator’s wife for life, one to accountant, and the three remaining shares to testator’s three married daughters for their sole and separate use..... After a careful consideration of the entire will, the intention of testator is made clear that upon the death of either of his children leaving issue, the latter, his grandchildren, shall take equally their parent’s share, provided they have then attained twenty-five years of age, or of those living under that age, when they shall attain that age. Their right to take thus depends upon a contingency. The gift is not direct to the grandchildren unconditionally, but upon the condition that they reach a prescribed age. The vesting is consequently postponed, and if this be beyond the period allowed by law, the estate in remainder thus attempted to be created is void. The remainder to be valid must surely take effect within twenty-one years after the termination of the life estate: Davenport v. Harris, 3 Gr. 164. If it exceeds this period, it is void in its creation: Davenport v. Harris, supra; Hillyard v. Miller, 10' Pa. 334; Smith’s App., 88 Pa. 495. When a gift is infected with the vice of its possibly exceeding the prescribed limit, it is at once and altogether void both at law and in equity: Williams on Real Property, 262. The gift to the grandchildren may possibly exceed the limit allowed by law, by the death of either of testator’s children leaving at the date of their decease children surviving less than four years of age. It could not be ascertained whether they would inherit any portion of their parent’s share until they lived to attain the age of twenty-five years. And thus the parent’s share might possibly be withheld from distribution almost the whole period of twenty-five years. This result it must be conceded would be a palpable violation of the rule against perpetuities. The gift in this instance is to a class, all the grandchildren, their parents being living; and the members of this class cannot be ascertained within the limits of perpetuity. In such case, the gift is void : Leake v. Robinson, 2 Mer. 363, and other eases cited in Theobald on Wills, 436. If the remainder is void to any of the persons entitled to take, it is void in toto. Without a further discussion of the question, the proper conclusion seems to be, that the remainder contravenes the law against perpetuities, and cannot be sustained. The testator therefore made no disposition of the residue of his estate, and it is disposed of by the intestate law. His children then are entitled in equal shares, and, as they are given by the will a life estate, and by the law an absolute estate, it follows that the two must coalesce, the less with the greater estate, the life estate with the fee, and they become entitled absolutely to one fourth part of the trust estate. The auditing judge then made a distribution awarding one fourth of the balance of principal due the estate, after deducting the costs of audit, to each of the four children of the testator including the accountant, absolutely. To said adjudication exceptions were filed on behalf of the Provident L. & T. Co., substituted trustee succeeding the accountant, and of certain of the grandchildren, specifying that the auditing judge erred, inter alia : 1. In holding that the will of the testator transgressed the rule against perpetuities. 2. In dividing the balance in testator’s hands among testator’s children. These exceptions having been argued before the court in banc, on April 23, 1887, Ashman, J., filed the following opinion: The testator gave the residue of his estate, after the death of his wife (an event which has happened), in trust to pay-one fourth of the income for life to each of his children, and on the decease of any of them, in trust, as to the principal of the share of the one so dying, “ to and for the only proper use of his or her child, or all of his or her children, if more than one, who shall have attained, or shall attain the age of twenty-five years, and the issue of any such who shall have died or shall die under that age leaving issue; . . . . but if either of my said children shall die without leaving a child, or issue of a child, him or her surviving, then as respects the share of any residuary estate above limited to the use of his or her child or children, I will and direct that it shall be held for the equal use and benefit of my other children and their respective issue,” etc. The four children survive. Their respective children were all born in the testator’s lifetime, and are living and above the age of twenty-five years. In the adjudication of the trustee’s account the limitation to the grandchildren was held to be void, and distribution of the estate was decreed among the children. The English doctrine is that where a gift is to individuals, and therefore severable, but violates as to some of its objects the rule against perpetuities, it shall be upheld as to the non-transgressive interests. But where the gift is a unit because to a class, its validity will depend upon the eligibility of every member of that class, prospective as well as present, and possible as well as actual, to take under the rule. The reason, as given in Leake v. Robinson, 2 Mer. 362, is the difficulty of determining what would have been the intention of the testator, if he had been advised of the existence of the rule; whether, for instance, he would have left out after-born grandchildren rather than abridge the period of vesting at twenty-' five, or have postponed it only until twenty-one, and so have included all who should have been born before that time; and because, where the gift operates by way of executory devise, the devise itself being an infringement of common law rules, and allowable only on condition that it shall not exceed established limits, the gift is wholly void if it violates that condition at all. Leake v. Robinson was followed in a long line of cases, many of which are cited in a note to § 374 of Gray on .Perpetuities, and it is authority to this extent on both sides of the Atlantic. But the rule is not infringed where the time for vesting falls within the prescribed limits, however greatly the time for payment may transcend them; and it is to that point that the inquiry must be directed. It weighs for nothing that all of the grandchildren happened to have been born in the lifetime of the testator, that all have reached the age fixed by his will, and that there is, moreover, no reasonable likelihood of an accession to their number. Unless by the terms of the will they must all have taken within the period allotted by the rule, the accidental circumstance that they came in fact within it, will not validate a limitation which was void at the moment it was written. The question, we think, is answered in favor of vesting by several provisions in the will and in the codicil. In the latter the reference by the testator to certain of his grandchildren would seem to preclude the idea that he was thinking of them as a class. His designation of his four grandchildren, the children of his daughter Anna, was as distinctively individual as if he had named them seriatim. The gift, then, was to several persons answering to one description, and its amount to one of those persons was not affected by the existence or non-existence of the others : Boughton v. James, 1 Coll. 26; Storrs v. Benbow, 3 DeG. M. & G. 390; Wilkinson v. Duncan, 30 Beav. 111. It is more important, however, because it recognizes the vesting of the interests during the lifetime of the parent. At her death and solely for the protection of the grandchildren, he directs that their shares shall not be paid to them if their father shall be living, but that such payment shall await his death. This individual reference to the members of a class is made, it is true, only to the issue of one child, but it is the key to his intention respecting the other children. He foresaw that, as to the portions of the children of that daughter, it would be prudent to postpone payment until the death of the father; but he made no distinction between the vesting of those portions and the shares of the other grandchildren. All were to vest at the same time. If, then, he declared in express terms that the then living issue of one child were the only parties who could succeed to her share, and if all the grandchildren took together, how can it be said that the legatees were not ascertained? . The conclusive answer is found, however, in the limitation over to the testator’s surviving children upon the death of a child without issue living. Under the authorities, the effect of that limitation was to show that the attainment by the grandchildren to the age of twenty-five years, was not a condition precedent to the vesting of their interests, but was simply a designation of the time at which those interests were to be paid. This suspending of possession did not affect the integrity of the gift, and could not defeat its vesting: 1 Jar-man on Wills, 252-3. In Bree v. Perfect, 1 Coll. 128, the gift over was to such of the children of B., the life tenant, as should be living at the time of her death, as they attained twenty-one ; but if B. should die without leaving issue, then to C.; and it was held that a chiíd of B., who died after her under twenty-one, took a vested estate. See also Ashhurst’s Est., 17 W. N. 538. In Smith’s App., 88 Pa. 492, where the appointment by the daughter was to a class wdiich might have included members born after the death of the donor of the power, whose will and that of the donee were to be read as one instrument, there was no such limitation over, and the decision which was rendered is inapplicable here. That the limitation over converts -what, without it, would have been a condition precedent into a condition subsequent, see Edwards v. Hammond, 3 Lev. 132; Jarman on Wills, 809. See also the remarks of Jessel, M. R.., in Fox v. Fox, L. It. 19 Eq. 291. The exceptions are sustained. Concurring opinion, Penrose, J.: If the case rested upon the will alone, and if the gift to the grandchildren of the testator must be understood as including all who shall attain the age of twenty-five years at any time, it would necessarily follow that the limitation would be void as transgressive of the rule against perpetuities, notwithstanding the fact that no grandchild has been born since his death. The validity of such a gift is to be tested by possibilities, not by actual results. Unless tbe limitation be such that it must, inevitably, vest within a life or lives in being and twenty-one years, etc., after tbe death of tbe testator, it fails in its inception and is bad altogether; and, if to a class, as to some members of which it might possibly not vest until after tbe prescribed period, it is void as to all if the shares cannot be defined or separated, as they cannot be where all who are intended to take must be considered in estimating them. Nor would tbe difficulty be overcome by the limitation over in the event of the death of a child of the testator without leaving “a child or issue of a deceased child,” withoiit reference to the age of such child. When it is doubtful whether the time appointed applies to the vesting' or merely to the payment, a gift over in the event of the death of the legatee before such time may imply a prior vesting, and so resolve the doubt: Bree v. Perfect, 1 Coll. 128; Finch v. Lane, 10 Eq. 501; Phipp v. Ackers, 3 Cl. & F. 691; Ashhurst’s Eat., 17 W. N. 538; but this effect cannot be given where tbe attainment of the prescribed age forms part of tbe original description of tbe legatee: Smitli on Executory Interests, § 366 ; Theobald on Wills, 268; Bull v. Pritchard, 1 Russ. 213. That the limitation takes effect by way of remainder after a prior life estate is immaterial. A legal remainder in lands, whether vested or contingent, is not- affected by the doctrine of perpetuities; but this principle does not apply to personalty, as to which all bequests of future interests, whether with or without the intervention of a particular estate, are regarded, not as remainders, but as executory bequests: Gray on Perp., §§ 325, 326, 90, 117, 321. But can it he said to be certain that the limitation includes all grandchildren without reference to the time when they attain the age of twenty-five years ? The will directs that the trustee shall “so distribute and pay the whole income of the residuary estate as that each child shall receive an equal one fourth part in equal half yearly payments during his or her respective'natural life; and upon the decease of either one of such children, and successively of each of them, then as respects the corpus or principal of such residuary estate to and for the only proper use of his or her child, or all of his or her children, if more thau one, who shall have attained, or shall attain the age of twenty-five years, and the issue of any such who shall have died or shall die under that age leaving issue,” per stirpes; “but if either of said children shall die without leaving a child or issue of a child him or her surviving, then the share of residuarj'- estate above limited to the use of his or her child or children.....shall be held for the use and benefit of the other children and their respective issue upon and subject to the trusts and limitations before expressed and contained.” Thus it will be seen that, except in the event of the taking effect of the limitation over by reason of a death without leaving a child or issue, the estate is not to be “held ” by the trustee after the death of a child of the testator, so far as concerns the share of such child, and the share of the corpus so held previously is to be “ then ” distributed among such of the children of that child who “shall have'attained or shall attain the age of twenty-five years.” This expression is ambiguous. It may refer to the death of the testator and mean that the estate is to go to such grandchildren as at that time have attained or who shall attain, prior to the death of their parent (the time fixed for distribution), the prescribed age; or it may refer to the time of distribution, and intend only the grandchildren who have then or who shall thereafter attain such age. In the latter case, the gift will fail for remoteness and a partial intestacy will result. The former is therefore, under well-settled principles, to be adopted as the true meaning. “ It is a general rule,” says Sir Edward Coke, “ whensoever the words of a deed or of the parties without a deed may have a double intendment, and one standeth with law and right, and the other is wrongful and against law, the intendment that standeth with law is to be taken: ” Co. Litt. 42 b. Where the instrument, taken as a whole, is ambiguously expressed, or if it contain'conflicting and contradictory clauses, the construction which will make it valid will be preferred to that which will defeat it or lead to an intestacy: Williams on Ex., 1340; Ashhurst’s Estate, supra. Or, as it is expressed by Prof. Gray, “ The fact that a provision would be too remote if construed in a certain way is a reason for supposing tliat it was not intended to be construed in tliat way, which although it cannot avail against a clear form of words may well be held to govern when the expression is ambiguous: ” Gray on Perpetuities, § 633. Adopting the construction which saves the operation of the •will (a construction aided by the fact that the word “ thereafter,” which would have been used if the time of distribution was referred to as the date after which the grandchildren “ shall attain ” the age of twenty-five years), the effect is to limit the estate to such of the grandchildren as at the death of their parent may be twenty-five years of age, to the exclusion of those who are not; with an alternative limitation (by implication from the limitation over) to grandchildren, generally, if none should have then attained the requisite age: See Theobald on Wills, 297, citing Longhead v. Phelps, 2 W. Bl. 704; Crompe v. Barrow, 4 Ves. 681; Doe v. Challis, 7 H. L. 531. But whatever may be said with regard to the will, the limitation to the grandchildren, all of whom were born in the lifetime of the testator, and are now more than twenty-five years old, is clearly sustainable under the codicil. It is true, in contemplation of law, other grandchildren may be born hereafter; the fact that a woman is past the age of child-bearing not being considered in determining whether a gift is void for remoteness or not: Jee v. Audley, 1 Cox 324; Sayer’s Trust, 6 Eq. 319; but in applying the rule, the state of things existing at the death of the testator and not at the date of the will is to be looked at: Vanderplank v. King, 3 Hare 17; Cattlin v. Brown, 11 Hare 382; Peard v. Kekewich, 15 Beav. 173; and the gift to grandchildren living at his death will not fail unless so blended with gifts to others not then born as to be incapable of ascertainment and severance. The codicil, changing the will in this respect, provides that the grandchildren shall take per capita; and as they successively attain the age at which they become entitled to possession, their shares are to be determined, not by the number who may ultimately become so entitled, but by the number of grandchildren, etc., then living, without respect to age. The interests being thus severable, the validity of the gift to those born in the lifetime of the testator is not affected by its invalidity as to others born thereafter: Griffith v. Pownall, 18 Sim. 393; Cattlin v. Brown, 11 Hare 372; Wilson v. Wilson, 4 Jur., N. S., 1076; Storrs v. Benbow, 2 My. & K. 46, etc., etc. It is immaterial that the will does not define the amount in dollars, or say that the shares shall be a certain fixed proportion, as one tenth, one twentieth, etc., if a method by which it is to be ascertained is pointed out and can be resorted to within the requisite limit. Id certum est quod certum reddi potest. “ Though the amount of each legacy is dependent upon the number of legatees, yet if the number must be determined within the required limits, the gift is separable: ” Gray on Perpetuities, § 389. The principle, of course, is the same where, as here, the amount is dependent not upon the number of legatees, but upon the number of individuals in being at a certain date within the limits. “ The cases as well as the reason of the tiling show that where, on a gift to a class, the number of the shares is definitely fixed within the time required by the rule against perpetuities, the question of remoteness is to be considered with reference to each share separately: ” Gray on Perpetuities, § 391. See also Theobald on Wills, 298; Williams on Ex., 1351. Under this view of the ease, as the gift to grandchildren is clearly good so far as concerns those now in being, it is unnecessary to consider whether the codicil, which declares that the residuary estate shall be held for “ all ” the grandchildren, per capita, and provides the method for ascertaining the share of each as he or she becomes entitled to “receive” it, does not, under the rule of construction already referred to, and in view of the limitation over contained in the will, indicate the intention of the testator to vest the interests and simply defer the time of payment. If vested, the attempted withholding of the beneficial enjoyment after the legatees have attained the age of twenty-one years, is without recognized legal purpose, and void for repugnancy, and the right of possession will be accelerated accordingly: 1 Jarman on Wills, 252; Gray on Perpetuities, § 205. As there is a valid limitation to the grandchildren, taking effect at the death of the tenants for life, respectively, the trust for its preservation must be sustained, and the adjudication in this respect modified. On July 5, 1887, a formal decree was entered vacating the distribution awarded upon the adjudication, directing the delivery to the Provident L. & T. Co., succeeding trustee, of the assets and securities embraced in the account and aggregating $48,453, to be held and applied for the use and benefit of parties beneficially interested therein under the provisions of said will; decreeing that the accountant pay over to said company the further sum of $114,944.56 to be held and applied, etc., and that no share or portion of the funds, assets, or securities of said estate, or the income thereof should be paid to the said Passmore Williamson, by his successor in the trust, until after he should have complied with all the orders upon him in the decree contained. Thereupon Airs. Alary W. Coggins took this appeal, specifying in substance that the court erred in not confirming the adjudication of the auditing judge, and in holding that the trusts declared by the will of the testator respecting the capital of his residuary estate were valid and subsisting.
124 Pa. 36Commonwealth v. Perkins (1889)
No. 114 January Term 1889, Sup. Ct.; court below, No. 372 September Term 1887, C. P. No. 3.
124 Pa. 52Philadelphia City v. Dungan (1889)
1. A writ of error, not an appeal, is the proper remedy against an erroneous order striking a municipal claim for lien from the records, and an appeal improvidently taken from such order will be quashed on motion. 2. The object of the Philadelphia registry acts: March 14,1865, P. L. 321; March 29, 1867, P. L. 600, is (a) to enable the city to designate the true owner of property with reasonable certainty, and (b) to provide for actual notice of municipal claims affecting property thus registered to the owner thereof. 8. A municipal claim filed in Philadelphia county for the cost of the abatement of a nuisance, and which does not aver noticie to the registered owner to abate the nuisance and a non-compliance therewith, is fatally defective and may be stricken off.
124 Pa. 58Philad. & R. R. v. Knight (1889)
ERROR TO THE COURT OF COMMON PLEAS NC>. 3 OF PHILADELPHIA COUNTY. No. 440 January Term 1888, Sup. Ct.; court below, No. 671 December Term 1887, C. P. No. 3. To the number and term of the court helow indicated, David A. Knight and others, executors of Wm. H. Knight, deceased, brought assumpsit against the Philadelphia & Reading R. Co., to recover upon certain interest coupons from corporate bonds issued by the Schuylkill Navigation Co., secured by a trust deed or mortgage dated July 12, 1870. With the plaintiff’s statement was filed an attached copy of the bond of the navigation company and of the coupons sued upon. There was indorsed upon the bond the following guaranty executed by the Phil. & R. R. Co., defendant, by its corporate officers : Know all men by these presents, That for a1 valuable consideration the Philadelphia and Reading Railroad Company hereby guarantee the punctual payment of the principal and interest of the within obligation when and as the same shall respectively fall due. In Witness Whereof, The said company have hereunto affixed their corporate seal, attested by their president and secretary, this twelfth day of July, Anno Domini eighteen hundred and seventy. The plaintiffs claimed interest upon the amounts due upon the coupons, severally, from the time when payable. The defendant company hied an affidavit of defence, averring that, as the action was not against the Schuylkill Nav. Co. to recover upon the coupons, but upon the guaranty of the defendant company for the punctual payment of the principal and interest upon the bonds, to which the coupons were attached, interest upon the coupons was not recoverable against the defendant company. Upon a rule for judgment for want of a sufficient affidavit of defence, the court, Finletter, P. J., directed judgment to be entered for the plaintiffs for the amount due upon the coupons with interest from the times when the same were payable. The defendant then took this writ, assigning the order entering such judgment as error. [Other like actions were brought against the defendant, wherein the same defence was made, like judgments entered, and writs of error raising the same question taken, and argued with this case.]
124 Pa. 61Intern'l Marine Ins. v. Winsmore (1889)
1. As a general rule, whatever furnishes to the assured a reasonable expectation of pecuniary benefit from the continued existence of the subject-matter of insurance, is a valid insurable interest therein, and the right of property is not always an essential ingredient. 2. The owners of a vessel and its cargo engaged in a joint venture are in the relation of partners in the venture, each having a lien on the vessel and cargo for his own interest in the copartnership, as well as for advancements and disbursements made by him for the common benefit. 3. Wherefore, such a part owner has an insurable interest in the joint venture, validating an insurance on the same, to the extent of his advancements and disbursements made on liabilities incurred before the vessel is destroyed, and for which it would' have been liable had the loss not occurred.
124 Pa. 67Patterson v. Harlan (1889)
1. If, in a conveyance or mortgage of a lot, it is described as bounded upon a street laid down upon a municipal plan but unopened, the street becomes appurtenant to the lot, and, as between the grantor and grantee, the mortgagor and mortgagee, title to the soil to the middle of the street passes. (a) A deed conveyed lots described as bounded on certain streets laid out upon the municipal plan but unopened, and contained the clause: “ Together, as respects each of the said lots,.....with its full proportion of the street or streets, avenue or avenues, on which it is situated.” (b) The grantee mortgaged the lots, describing them in the mortgage as bounded on said streets but not including in the description the clause above quoted from the deed, and afterward the lots wore sold under the mortgage and a deed made to the purchaser. (c) The sale upon the mortgage foreclosure did not satisfy the bond secured by the mortgage, and, upon a judgment obtained for the balanee due upon the bond, the interest of the mortgagor in the soil to the middle of the streets was sold at sheriff’s sale. 2. In such case, the omission from the mortgage of the clause quoted from the deed was immaterial, and the purchaser at sheriff’s sale under the mortgage foreclosure took the title of the mortgagor to the soil of the streets passing to him under the original deed.
124 Pa. 74Appeal of Lee (1889)
124 Pa. 80Appeal of Keyser (1889)
FROM THE DECREE OF THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 36 July Term 1888, Sup. Ct.; court below, No. 159 January Term 1887, O. C. On June 14, 1887, the first account of George S. Pepper, et al., executors of the will of Henry Seybert, deceased, was called for adjudication before Penrose, J., wlien a claim was presented on behalf of Charles S. Keyser, “ for literary services rendered the decedent between 1877 and the time of his death in 1883, one continuous service, $3,000.” From the testimony adduced upon the hearing it was shown that the decedent died March 3, 1883, unmarried and without issue, leaving a will admitted to probate March 14, 1883; that the account of the executors, showing a balance after the payment of the legacies credited in the distribution, of $765,403.23, had. been filed in obedience to a citation issued upon the petition of Charles S. Keyser, the claimant, filed February 5,1887; that the literary work in respect of which the claim was made was the composition and writing of a manuscript work entitled The Chronicles of Independence Hall, upon which the claimant was engaged for a number of years, and it was estimated by witnesses that the value of the labor upon the manuscript was from 83,000 to $6,000. Witnesses were called by the claimant to establish that the deceased, in 1876, having presented to the city of Philadelphia the new bell and clock now in the steeple of Independence Hall, the writing of said history was undertaken by the claimant at the suggestion of the decedent: that the decedent was frequently in consultation with the claimant, and about three or four months prior to his death he had an interview with Mrs. Elizabeth S. Bladen, a literary lady, to whom he rehearsed the history of his gift, and said to her “that he had engaged Mr. Keyser to write a history of the State House, the importation of the bells, and the things connected with them, and. his father and mother — I think he mentioned that particularly, but that he wanted some more elaboration about his personal family, and that possibly I could do it; .... . then he said to me would I go down and see Mr. Keyser, and see how cheaply I could get this work from him.....I went down and called on Mr. Keyser.....I went back. Mr. Seybert was still in his parlor. I said to him, ‘ Why, Mr. Keyser says he would not give you that for less than $2,000; that is his lowest price for it.’ Mr. Seybert said, 4 Oh, no, no, no; the occasion for it has gone by; go back and see him again, he will give it for a few hundred.’ I then observed that he was weak. I got tired of the whole thing.” The auditing judge, upon the foregoing and the other testimony ruled that it was not shown by the claimant that the relation of the parties was that of employer and employee and that the decedent was to pay for and become the proprietor of the work, or that the compensation of the claimant was to be derived from any other source than sales made after publication. Referring specially to the testimony of Mrs. Bladen, the adjudication proceeded: This testimony, in the opinion of the auditing judge, completely negatives the idea of the existence, at the time to which it relates, of any obligation on the part of the decedent to pay for the work done by Mr. Keyser. Mrs. Bladen was sent, not to bring about a settlement of a claim, but to purchase a work which could not have been sold by the author if he had written it simply as an employee; and his refusal to sell at less than $2,000 is inconsistent with the idea that the decedent was already bound to pay for his services what they were reasonably worth. The decedent was a man of large fortune, and any obliga-tion on his part could readily be enforced. So far as appears there was at no time while he lived an assertion of liability or a. demand upon him by the claimant. It would seem that the work was in shape for publication at least as early as 1882, and possibly a year or two before that. If the decedent was to pay for the composition and writing of the book, the manuscript and copyright would of course become his; but the manuscript was not tendered to him in his lifetime or to his executors after his death. The evidence of Mr. Edwin E. Simpson, another witness for the claimant, shows that as long ago as 1878 or 1879 the decedent refused to recognize the right of the claimant to call upon him for the payment of expenses contracted in the preparation of the book ; while the following receipt given by Mr. Simpson as agent for the claimant establishes affirmatively the fact that the author was regarded as the owner: “Received, Philadelphia, January 30th, 1879, of Mr. Henry Seybert, the manuscript of Independence Hall and books loaned to Mr. Seybert by Mr. Keyser. Edwin E. Simpson for C. S. Keyser.” Claims against the estates of -dead men, not asserted while the alleged debtor is living, ought to be supported by the clearest and most convincing evidence. Admissions to third persons'are not of this character. As was said in Harbold v. Kuntz, 16 Pa. 214: “ Admissions are the easiest mode of tesT timony to lead to error, the kind of evidence most apt to be misapprehended and mistaken, and in relation to which a facile conscience may stretch itself like India rubber.” No stretching, however, of the admissions in this case can render them sufficient to sustain the claim in support of which they are offered, and the claim must therefore be dismissed. Before confirmation of the adjudication, the hearing was opened upon the petition of the claimant, for cause therein set forth, whereupon the claimant showed that on January 17, 1874, his counsel had addressed a note to the executors of Mr. Seybert stating that he held the claimant’s demand against the estate for literary services, which were fully described, and that a few days thereafter the counsel for the executors had called and stated that payment of the demand was refused and that they would accept service of a writ. Other testimony was presented sufficiently appearing in the supplemental adjudication by Penrose, J., which was as follows: Upon the testimony submitted, apart from the question of the propriety of considering it at all, under all the circumstances of the case, the auditing judge sees no reason for changing the views expressed in the original adjudication. The supplemental examination of the witnesses is merely as to matters of explanation, not affecting the merits of the case. The witnesses simply say, perhaps with more emphasis than when they first testified, that the claimant was employed at the instance of the decedent, and that there was a contract between them with regard to the writing and publication of the work in question. But they are no more able to tell the terms of that contract now than they were six months ago, and it is precisely here that the difficulty expressed in the adjudication lay. There is still nothing to show “ that the decedent was to pay for and become the proprietor of the work, or that the compensation of the claimant was to be derived from any other source than sales made after the publication.” “ And claims against the estates of dead men, not asserted while the alleged debtor is living, ought to be supported by the clearest and most convincing evidence. Admissions to third persons are not of this character.” Of coirrse the inferences of the witnesses from the facts to which they testify are not to be regarded as evidence; and the letters now produced on behalf of the executors show most .conclusively that those inferences were entirely erroneous, according to the claimant’s own assertion of the terms of the contract. The relations of the parties had become unfriendly at least as early as January, 1879. On the 14th of that month, the claimant wrote to the decedent as follows: “ Dear Sir: Will you send me or shall I call for the MS. Independence Hall, I had promised it for to-morrow; the other works you may return at your convenience.” In reply, the decedent on the 17th wrote: “ Mr. Charles S. Keyser, “ Dear Sir: I can make no use of the Independence Hall MS. and I am quite willing you shall keep it. “ I will send it to you if you will first return to me the paper slips, letters, &c., which I placed in your possession.” The answer of Mr. Keyser was on the same day: “ Mr. Henry Seybert, “Dear Sir: Under our agreement, I was to furnish the MS. of the work you desired to be prepared on Independence Hall and its clocks and bells, and you were to pay the expense of publication ; the profits were to be divided equally after you were first repaid the cost of publication. “ To this agreement I must hold you, unless the work I have done after some months of labor is not such a volume as would meet the approval of the most competent judges. I have agreed with you to submit it to the judgment of Mr. Wallace and Mr. Westcott, or any other gentlemen of like character and reputation. I am still willing to do so, and would be pleased to hear from you at your earliest convenience, if the names of these gentlemen meet your approval.” To this Mr. Seybert, on the next day, wrote as follows: “ Dear Sir : You are mistaken in your statement of an agreement between us, as put in your letter of 17th January, 1879. No such agreement was ever made. The MS. was written for me for the price of 1100, to aid Mr. Crandon’s enterprise, in which you appeared interested. I paid this and an additional price, not agreed upon, viz., fifty dollars for copying. I never agreed to publish it or any work, unless I should deem it proper to do so after examination. “ The MS. is not, in my judgment, worthy of publication. No possible profit could result therefrom. I am not willing to incur the considerable expense which such publication would .entail.” The following letter from Mr. Keyser closed the correspondence : “ Mr. Henry Seybert, “ Dear Sir : It will effect no result to continue this correspondence. “ 1 consented to write the work, with a good deal of reluctance and after repeated interviews with you at my office, for publication. The terms of the agreement were subsequently definitely determined between us; I gave you estimates of the price, to which you did not object; I read you chapters of the MS. which you approved. “We agreed that the work should be submitted to literary gentlemen for their judgment on its merits, and agreed on their names ; you also desired to read it, lest there might be passages from which the public might infer, as in the case of the bell was inferred by councils, on the first presentation of that object, that it was designed to minister to your personal vanity. “ Beyond this nothing more. “ I never agreed to submit the work to your literary judgment, because, as you very properly said, you had none. “ There is only one way to determine the matter between us, that is, to submit to gentlemen competent to determine, as arbitrators, the facts of the case. Neither of us want the publicity of a trial. I do not suppose you will submit; I certainly will not submit to what seems to me gross wrong done in an insulting manner from any one.” “ January 18th, 1879.” Assuming the agreement to have been as stated in Mr. Keyser’s letter of January 17, 1879, he could not, at least without notice to Mr. Seybert and tendering him the manuscript, repudiate it, and sue on the footing of a quantum meruit under an employment of his services by the latter; and there was no such notice or tender. But the fact of the agreement was promptly and emphatically denied by Mr. Seybert, who, as far as appears, took no notice of the suggestion in the letter of January 18th, that the question should be referred to competent arbitrators. He lived for more than four years after this, viz., until March 3, 1883. He was possessed of large means, and was abundantly able to respond to any claim that might be recovered against him; but during all this period no steps were taken to establish such claim, and each day, as the recollection of the centennial celebration became dimmed, the value of the work and the chances of deriving profits from its publication grew less and less. The inaction of the claimant while the decedent lived, though it may not now estop him, is cogent evidence of his own belief that his claim was incapable of enforcement. If the arrangement was as alleged by the decedent, the obligation has been fully discharged; if, as asserted by the claimant, the time for publication has been suffered to pass before the completion of the work, the profits would have been nothing and the damage to be recovered, therefore, merely nominal. It is quite clear, in the light of these letters, that the claim as heretofore presented cannot be allowed, and that the adjudication should not be opened. But Mr. Biddle asked to amend by substituting for the original claim, a claim for damages for breach of the contract asserted in the letter of January 18,1879. The auditing judge is of opinion, irrespective of the plea of the statute of limitations now set up on behalf of the estate of the decedent, that this cannot be done ; nor if done, can it avail the claimant, there being no evidence that profits would have been earned by the publication of the work. The existence of such a contract, which would have been fatal to the claim as asserted in the original demand upon the executors, in the petition upon which the citation for an account was issued, and in its presentation to the auditing judge when the matter first came before him, was wholly ignored and kept out of sight. To suffer it to be set up at this late day could only be. done by a total disregard of all principles governing applications for rehearing. These letters show that the work done by the claimant was completed at least as early as January, 1879. It is not pretended that the obligation of the decedent arose from any instrument under seal; and, unless something has occurred to relieve the claim from the bar of the statute of limitations, it is clear, whatever may have been its original merits, there can be no recovery at the present time. There is nothing, in the opinion of the auditing judge, which arrests the running of the statute. The decedent lived for over four years after the cause of action arose. About ten months after his death, notice of the claim was given to the executors, who promptly denied any liability and, through their counsel, invited the bringing of a suit at law and offered to accept service of a writ. The course thus suggested was not adopted, the claimant preferring, but without any encouragement or inducement whatever on the part of the executors, or their counsel, to come into the Orphans’ Court when an account should be filed. It was said that this was because, as the law was then understood, it was not supposed that the statute of limitations could have any operation. It may be that suitors who, relying upon the doctrine of McClintock’s Appeal and the cases which followed it, had forborne to proceed against the estates of decedents, would, after the change announced in Yorks’ App., 110 Pa. 69, be afforded a reasonable time, under the principle of Menges v. Dentler, 33 Pa. 495, within which to bring their actions; but Yorks’ Appeal was decided January 4, 1886, and the citation, which must be regarded as the bringing of a suit in the Orphans’ Court, was not asked for until February 5,1887, more than a year later. So great a delay, with respect to a claim then over eight years old, as against the estate of a man who had been dead for three years, cannot be considered reasonable. The claim upon the quantum meruit is, and was at the time of the presentation of the petition for citation, barred by the statute. As proposed to be amended it is also barred, and for this reason, if for no other, the amendment cannot be allowed. See Wood v. Anderson, 25 Pa. 407; Smith v. Smith, 45 Pa. 403. And now, the claim of Charles S. Keyser having been reconsidered on the petition for rehearsing and the evidence offered in support of and against the application, it is ordered and adjudged that the claim Be disallowed, the original adjudication confirmed and the order suspending confirmation rescinded; exceptions to the adjudication and to this order to be filed on or before January 6, 1888. Within the time limited, the claimant filed various exceptions alleging error in the findings of fact, that the contract claimed upon had not been established by the evidence, and that “ there is nothing to show that the decedent was to pay for and become the proprietor of the work, or that the compensation of the claimant was to be derived from any other source than sales made after publication; ” and in the conclusion of law that the claim was barred by the statute of limitations. Said exceptions having been argued before the court in banc, a decree was made dismissing the exceptions and confirming the adjudication. Thereupon the claimant took this appeal, assigning, specifically, the said decree as error.
124 Pa. 92Killer v. Commonwealth (1889)
No. 113 July Term 1888, Sup. Ct.; court below, No. 24-1 January Term 1888, O. and T. On January 11, 1888, tbe grand jury returned as a true bill an indictment charging William Killer with the murder of David Lewis. The defendant, being arraigned, pleaded not guilty.
124 Pa. 99Appeal of McCurdy (1889)
FROM THE DECREE OF THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 259 January Term 1888 and No. 232 January Term 1889, Sup. Ct.; court below, No. 564 April Term 1879, O. C. On June 14, 1887, the fifth account of the executors of Henry J. Stout, deceased, as filed by John K. McCurdy, surviving executor, was called for audit before Ashman, J., when the following facts appeared: Henry J. Stout died on February 6, 1875, having left a will dated December 21, 1870, duly admitted to probate, with a codicil thereto dated July 3, 1872. The will contained forty-one paragraphs, the first twenty-three of which were made up of bequests to various charitable institutions in Philadelphia. The twenty-fourth to the thirty-seventh paragraphs, inclusive, contained bequests of small sums of money, to be paid yearly to certain persons including the next of kin during life, with remainders to their children. The thirty-eighth paragraph provided for the payment of testator’s debts, funeral expenses, for the erection of a monument and the repair of his burial lot in Macphela Cemetery. The paragraphs next following were as follows, to wit : “ 39. In case of my demise before thirty days from the date of this my last will and testament, I give and bequeath to my executors hereinafter named, all the moneys and bonds given aforesaid for charitable uses and purposes, upon the trust and confidence that they shall pay and transfer the same, to the said institutions ;■ and in case 1 may have made any mistake in the names of said institutions I direct my said executors named hereinafter to pay the aforesaid sums of money and transfer the aforesaid amounts of bonds to said institutions, as I have indicated the same in the catalogues of Messrs. Powell and Collins, the Philadelphia Medical Register and a slip from The Press, by ink marks made by my direction on the same, on or about the second day of December A. D. 1870, and which I have delivered to my executors for their guidance. “ 40. As for all my estate of whatsoever kind which does not or cannot pass under the aforesaid provision of this my last will and testament, I give and bequeath the same to my executors hereinafter named, to be devoted and given by them to such institutions or uses, as they in their best judgment may consider the most compatible with the views and instructions which I have given to them, it being my intention that none of my property shall pass or be disposed of under the intestate laws, but that all of the same shall pass and be disposed of under the provisions of this my last will and testament. “41. I appoint John K. McCurdy, gentleman, and Joseph S. Brewster, attorney at law, both of the city of Philadelphia, executors to this my last will and testament.” The codicil of July 3, 1872, changed one of the charitable bequests, and revoked several of the annuities and remainders. On May 25,1877, Joseph S. Brewster and John K. McCurdy, the executors named in the will, and who had accepted the trust, signed a deed, sealed with their seals, beginning: “ Having paid all the bequests in the last will and testament of the late Henry J. Stout to charitable institutions ($76,400) but the one to be paid on the death of Mrs. Mary Baker ($15,000) and secured that and all the others due upon the termination of lives in existence ($7,500) by approved investments, and that being the utmost extent (with exceptions hereinafter set forth) to which, after years of reflection, Mr. Stout wished lfis estate to be applied for either charitable purposes or the benefit of relatives, as he repeatedly declared to executors and as is evident from the fact, that he could have increased his bequests, if he had desired, yet did not, though remarkable for not doing by others what he could do by himself, but on the contrary by his codicil diminished them, by revoking the items of his will numbered 29, 30, 34, 35, and 36: which act testator thought harmonized with item numbered 40 of his will by which he leaves the residue of kiá estate to his executors, with verbal instructions, which were intended among other things, to prevent the failure of any bequests to charitable purposes from mistake or through change or dissolution of the corporations entitled to the same,, occurring after testator’s death: said executors to substitute (as they did in one case) such institutions or uses, as they may consider the most compatible with the views and instructions given to them by the testator; and although said executors are not at liberty by these instructions to charge the estate of said testator with new bequests, yet they know it to be their duty (though it is against their interest) to give full effect to and carry out certain items in said will, as is hereinafter set forth, on which testator was imperative in his instructions and views, and said executors, John K. McCurdy and Joseph S. Brewster (without prejudice to their exclusive right to the estate given them by Mr. Stout, and in compliance with his wishes expressed to them about the same), do hereby accordingly make the following provisions charging the sums mentioned in the same against the residuary, so as aforesaid bequeathed to them, the said John K. McCurdy and Joseph S. Brewster, by the fortieth item of the said last will and testament of Henry J. Stout, deceased: said provisions having reference to matters that testator thought could be better arranged by verbal instructions to the executors than in any other way, and the same being especially designed to give ample powers to them in the case of fraudulent claims and of a creditor, who was a devisee (but whose devise might not be as large as he had expected), from attempting to increase its amount by refusing to pay his indebtedness, and thereby disturbing the settlement which testator had made of his estate, which Mr. Stout feared would be done if any persons knew beforehand, except the executors, how he had willed the residuary fund. The unreliable character of testator’s securities was also a motive with him for these verbal instructions.” The deed then proceeded to make the following “ provisions: ” $25,000, in addition to approved securities already pledged, as a permanent fund to secure payment to Mrs. Mary Baker the original $900 annuity and $300 a year, increased by the executors; $5,000, in addition to approved securities already pledged, as a permanent fund to secure payment of all claims lawfully established against the decedent’s estate within five years from his death; $5,000, as a permanent fund to secure payment of such amounts as might be necessary to keep the monument of the deceased in perfect condition ; and $5,000, on the death of Mary J. Baker, to The Contributors of the Pennsylvania Hospital, the same being requisite to obtain a ward to be called Stout’s Ward. The deed then proceeded: “And the said executors, Jolm K. McCurdy and Joseph S. Brewster, do by these presents, covenant, promise, and agree each with the other, as well for ourselves individually as for our heirs, that we do and will hold, consider, and treat all the estate and property bequeathed to us by item fortieth (40) of the last will and testament of Henry J. Stout, deceased, as if the same had been equally apportioned between us, sliare and share alike (to be held as our and each of our separate property), in proceedings in partition, by a court of competent jurisdiction (each of said shares to be charged equally for the payments aforesaid); and furthermore, to prevent all future disputes, we hereby remise, release, and forever quit all claims or demands and cause or causes of action which either may have against the other, from the beginning of the world to the day of the date hereof, so that each of us shall hold and possess his moiety of said estate bequeathed to us as aforesaid, to himself and his heirs forever free and discharged from the other, as tenants in severalty, and not as joint tenants. “ And we furthermore affirm and say that all and each of the facts and statements aforesaid are just and true, and we hereby obligate ourselves to stand to the same and to do and perform all the provisions aforesaid.” Joseph S. Brewster, the co-executor, died in 1879. The account exhibited by Jolin K. McCurdy, the survivor, exhibited a balance of $96,101.01. John M. McCurdy and Clara S. Brewster, executors of Joseph S. Brewster, deceased, made claim that $56,101.01 of this balance should be awarded to John K. McCurdy, surviving executor, and to the estate of Joseph S. Brewster, deceased, the co-executor, as entitled thereto under the provisions of said will. The auditing judge, on June 19,1887, filed a report, ruling: “ That the additions made by this deed to the legacies given by the will, and the sums devoted to the settlements of the estate, were valid appointments, because they were within the instructions to which the testator referred; but he thinks that the provision by which the executors affected to appropriate the balance of the estate to their individual use, was invalid, because it was wholly unauthorized by the will. The language restricting the discretion which the testator conferred on the accountants was not precatory, but mandatory, and it imported a personal confidence in each of the executors wdiich could not survive to the representatives of either of them: Children’s Hospital’s App., 10 W. N. 313. The executor of the will of Joseph S. Brewster, the deceased executor, has therefore no claim to any part of the distributive balance.” The balance shown by the account, 96,101.01, was decreed to the accountant, $40,000 thereof to be applied in accordance with the specific provisions contained in the deed executed by the executors on May 25,1877, and $56,101.01, “upon the trusts declared by the testator.” To the foregoing adjudication, the executors of Joseph S. Brewster, deceased, filed exceptions alleging in various forms of averment that the auditing judge erred in awarding the remainder of $56,101.01, “to the accountant upon the trusts declared by the testator,” and in not awarding it “to the persons and beneficiaries named in the written declaration and agreement ” made by the executors, dated May 25, 1877. The said exceptions having been argued before the court in banc, Fekg-uson, J., on December 31, 1887, delivered the following opinion: In the recent case of Beck’s App., 116 Pa. 547, the will gave to the executor “ full and unlimited power and authority to appropriate or dispose of all the rest, residue, and remainder of my estate, real and personal, or the proceeds arising from the sale thereof, to such objects, persons, or institutions as in his discretion shall be best and proper, as I have full confidence in his judgment, ability, and integrity in the premises.” The executor under this power appropriated the whole residuary estate unto himself personally, and this court, under the circumstances, reluctantly following the English cases of Gibbs v. Rumsey, 2 Ves. & B. 297, and Morice v. Bishop of Durham, 9 Ves. 406, decided that, as the power of disposition vested in the executor by the testator was full and unlimited, he had the right to so appropriate the estate, which judgment the Supreme Court affirmed. But the doctrine of Beck’s Appeal ought, if possible, to be restricted rather than extended. Its practical application in that case was a disposition of the testator’s residuary estate apparently very different from that which he intended himself, because, if be meant so to do, lie could by bis will easily have given his whole residuary estate to bis executor by name, without referring to “ objects, persons, or institutions.” Besides, it is entirely repugnant to all our ideas of integrity and honesty that an executor should take to himself absolutely the estate which was given to him in confidence that he would appropriate it to other objects and purposes, and, in any ease where such a disposition of a testator’s estate is claimed, it seems to us that the strictest construction of the will should be invoked to prevent, if possible, its consummation. In the case now under consideration the testator did not give to his executors “full and unlimited power and authority to appropriate ” his residuary estate, but he limited and restricted their power of disposition to “such institutions or uses as they in their best judgment may consider the most compatible with the views and instructions which I have given to them,” so that, the views and instructions given to his executors by the testator are in this case the limitation to any disposition of his residuary estate which they had the power to make. These views and instructions were, it is alleged, communicated by the testator to his executors verbally. They, by a nondescript instrument in writing, executed under their hands and seals, and dated May 25, 1877, undertook either to put the views and instructions of the testator in some permanent shape for perpetuation as testimony, or else, if the residuary clause of the will is to be considered as vesting in them a power of appointment subject to the views and instructions of the testator, then, perhaps, it may be considered as an attempt to exercise such power; but in either case the practical result attempted to be accomplished by this instrument is the appropriation to themselves of the whole of the testator’s residuary estate, amounting to over $96,000 ($56,000 of which they take at once, and the balance upon the death of an annuitant), excepting $5,000 for a monument fund, and $5,000 to the Pennsylvania Hospital, which two sums they set apart for those purposes, according, as they alleged, to the views and instructions of the testator. Now it is conceded that if the executors had by this instrument in writing positively and unequivocally declared that it was part of the testator’s “ views and instructions ” communicated to them, that they were to divide his residuary estate between them, there would have been no one that could gainsay or deny the allegation; and, monstrous as it may seem, there would probably have been no way to prevent such a disposition of the testator’s residuary estate. But while they are very careful to declare that the other dispositions made by them are in accordance with these “ views and instructions,” yet with regard to the balance, which they divide between themselves, they make no similar declaration, but simply divide it share and share alike, and release and quit-claim all demands which either may have against the other on account thereof. It was contended that the words used by the executors near the beginning of this instrument in writing, to wit, “ without prejudice to their exclusive right to the estate given to them by Mr. Stout, and in compliance with his wishes expressed to them about the same,” are to be construed as a declaration upon their part that the “ views and instructions ” of the testator embraced a division of the balance of his residuary estate between his executors, as they now claim; but this quotation occurs in a part of the instrument so far away from that part of it by which the balance is divided between the executors, that it very probably has no reference whatever to the said division; and, even though it did refer to it, yet it is not a declaration made by the executors in such positive and unequivocal terms as to be entitled to consideration in construing an instrument of tliis kind. The executors are personally claiming almost the wliole of this large residuary estate against the next of kin of the testator. They had it in their power, under their power of appointment, to express what they intended to say, with regard to the “ views and instructions ” of their testator communicated to them, in clear, explicit, and unmistakable language, free from doubt or uncertainty. They not only had it in their power, but it was undoubtedly their duty to have so expressed it. They did not do so, and not having done so, every intendment is to be construed against them. This is not the kind of a claim that is looked upon with so much favor that it can be established by inferences drawn from ambiguous and uncertain language. Nor are the claimants to be given the benefit of any doubt which arises from the language used by themselves. On the contrary every such doubt must be solved against them and in favor of the next of kin of the testator. We think, therefore, that there has not been in this case a proper exercise of the power of appointment with reference to the portion of the testator’s residuary estate which the executors attempted to appropriate to themselves, and that with regard thereto he died intestate and the same is to be distributed among his next of kin according to law. The exceptions are dismissed, and the adjudication is confirmed, excepting that the balance, instead of being awarded to the executors upon the trusts declared in his will, will be distributed to the next of kin of the testator. A formal decree having been entered, in accordance with the foregoing opinion, John M. McCurdy et al., executors of Joseph S. Brewster, took an appeal and assigned as error, in substance: 1. The decree that the appropriation of the balance of the estate by the executors of the deceased to their own use was invalid. 2. The decree awarding the balance, to wit, §56,101.01, to the next of kin of the testator. John K. 'McCurdy, surviving executor of the deceased, also took an appeal, assigning as error, in substance: 1. The reversal of the decree of the auditing judge that the undisposed of residuary estate should remain in the hands of the surviving executor to be disposed of to the uses of the will. 2. The decree awarding the undisposed of residuary estate to the next of kin of the deceased.
124 Pa. 114Lombard Pass. Ry. Co. v. Christian (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY. No. 49 July Term 1888, Sup. Ct.; court below, No. 678 September Term 1887, C. P. No. 1. On October 24,1887, Anna Christian brought trespass against the Lombard & South Street Passenger Railway Company, to recover damages for personal injuries charged to the alleged negligence of the defendant company. Issue. At the trial on March 8, 1888, the plaintiff testified that in October, 1887, she was a passenger in a car of the defendant company, and proceeded : “ On 7th of October, I went to the city, and on my way coming back, at Thirty-sixth and Spruce streets, I asked a lady to pull the bell, as 1 was too little. In coming out, I had hold of the handle of the car on the platform, and I was thrown to the ground; when the bell rang, the car stopped; getting out of the car on the platform, getting to the lower step, I was thrown to the ground. One of the officers came and picked me up and helped me into the hospital. I was there for five weeks under treatment. I was suffering of course from my fall. I broke my arm and cut my head severely.” “ Q. Tell us what caused you to be thrown ? A. Owing to the driver not being careful. If he had been careful I would not have received the hurt ? owing to good reason. I don’t think he would do it intentionally, but he might do it through carelessness. “ Q. What do you mean by that ? A. Why, of course, he didn’t stop and give me time to get off, that is what I think. Tbe driver did stop at Thirty-sixth and Spruce, but not long enough for me to get off.” Mary A. Christian, the plaintiff’s daughter, sworn: “I dress my mother; she is not able to dress herself. Before October 7th, she was perfectly healthy, and able to take care of herself. “ Q. In what respect does your mother differ from what she was in October, before she was hurt? A. My mother suffers in the head.” Defendant’s counsel moved to strike out this answer. “ Q. In what respect is your mother physically different from what she was prior to October 7th?” Objected to. By the court: Offer admitted; exception.6 “ A. Not able to lift a broom or do any kind of housework, and she suffers very much from her stomach. “ Q. Does she suffer in any other way ? ” Objected to, and defendant’s counsel moved to strike out part of the answers to the previous questions, viz.: that she suffers in the head, and that she suffers very much from her stomach. By the court: Motion denied; exception.7 William Brutchfield, police officer, sworn: “Saw Mrs. Christian fall off the car. The first thing I saw was, the car stopped; the car started to move off. again, and then the old lady came tumbling off. After I seen her fall off, I went down; the driver of the car was picking her up, and he gave her in my charge, and I sent for patrol sergeant and he took her to hospital. Car going west. She fell off sideways on the cobble stones.” On cross-examination, the witness said: “No one standing there with me. I was looking at the car. Saw the driver. Saw no one in the car, only this woman falling off. The first time I saw her she was falling off. I think when she fell she was two and a half yards from the curbstone. I saw her fall. She fell about one and a half yards from the rails. She was nearer rails than the curb. I don’t know whether she was on any step of the ear or not, but I saw her in the act of falling. I did not see her on the car. I did not see her on the car at all. I first saw her falling, and I am most sure she fell off the car. The car had just started to move. I saw her come tumbling off the car.....I did not see her anywhere at all, only lying in the street. The northern rails are about four and a half yards from curb, and southern rails the same.” The plaintiff’s case then rested. On the part of the defendant company, Elisha Fogg, the driver of the car, sworn : “1 arrived at Thirty-sixth and Spruce; heard bell ring, stopped the car and I looked in, I saw an old lady passing out of the car. I watched her until she stepped down off of the platform out of my sight. I then started the car, and had proceeded but a short distance when some one notified me that the old lady had fallen. I then immediately stopped the car and went back, and found that she had fallen in the street. Assisted in raising her to her feet, and found that she had cut her head and that her right arm was injured. I took her name and residence, and left her in charge of an officer, who took her to the hospital.....I could not say how long the car stopped, but between the time I stopped and the time I started, 1 think sufficient time elapsed to allow any ordinary person to leave the car. When I went back I found she had fallen about midway between the curb and the rails. The rails are about eleven or twelve feet from the curb. She was about five and a half feet or six feet from the rails. “Q. In the position in which you found her, was it possible, in your opinion, for her to have fallen on to the place where she was, from your car ? ” Objected to. By the court: Objection sustained; exception.8 On cross-examination, the witness testified that the car was a “ bobtail,” the driver acting as conductor; that the accident was investigated between Friday and Monday, and he was discharged. “Q. Were you discharged by the president of the company on Monday following the accident, in consequence of this accident, and was the reason given by the president to you, because you had thrown this old lady off the car ? ” Objected to. By the court: Offer admitted; exception.10 “A. I was discharged by note from Parsons on Monday after the accident, and then I went to see Parsons the next day, to see why I was discharged. He asked me why I was discharged, and I said, on account of an old lady falling from my car, and he says, You had better say, an old lady being thrown from your car.” The witness was shown a written statement he had signed in the office of counsel. Having read the statement and admitted it, he said: “ It is right that I looked back and saw' some one lifting her from the street. The paper says, I started the car too soon. What I said was, I must have started it too soon.” George Martin, sworn: Witness was in the car at the time; remembered plaintiff being in the car. “ Did not see her go out. Saw her lying in the street about two feet or two and a half feet from the curb..... “ Q. From the position in which you saw this lady lying, was it possible for her to have fallen in getting off the car ? ” Objected to. By the court: Offer overruled; exception.9 ■The defendants case closed. The court, Biddle, J., charged the jury as follows: This action is a suit for negligence. The plaintiff’s claim is for damages by reason of negligent conduct on the part of the railroad company by which she has been injured. Before there can be a recovery in a case of this kind, you must be satisfied that the company is guilty of some negligence bringing about the injury, and that the plaintiff is guilty of no negligence on her part contributing to bring about the accident. The evidence must satisfy you: 1. That the company was negligent. 2. That the plaintiff was not negligent. The negligence here complained of -by the plaintiff is that she was a passenger on board of one of the street-cars commonly known as Slawson or bobtail cars, which is a ear having only a driver and no conductor. It is the obligation of the railway company to carry its passengers with safety. That includes the duty of giving an ordinary and reasonable opportunity to its passengers to get off of the car. It is the duty of the company to carry its passengers safely and give them a reasonable opportunity to get off its cars without injury. The plaintiff’s complaint is, that wishing to alight from the car, the bell was pulled and when slie was about to get off the car started before slie could do so, and wliile she was getting off the car, she was thrown down and injured. The main facts in the case are not disputed. It is not denied that she was in the car, that the car was going west, that she wished to get off the ear, that the bell was rung to stop the car, and that she started to get off the car. [You have heard the evidence on both sides, the plaintiff’s, and that for the defendant. The driver’s evidence here is, that he must have started the car before the plaintiff had time to get off, and that he was dismissed, on the ground that his negligence had produced the accident, by the president of the company. That fact is not controverted by any evidence on the part of the company. The president is not here within the jurisdiction of the court, and no attempt has been made on the part of the other officers of the company to deny the truth of this allegation.] 3 If you believe that this accident happened by reason of the car starting while the plaintiff was in the act of getting off and before she had time to alight, then the company is responsible for the damage sustained by this plaintiff. The character of the injuries sustained by her has been detailed to you. It appears that the bone of her right arm was broken, and that she received a scalp wound on the head..... If you believe that the railroad company has been guilty of negligence, then it is your duty to consider what damages should be awarded to the plaintiff for the injuries she has sustained. Anything like vindictive damages is out of the question in this case. Only compensatory damages can be awarded. In giving damages you must take into consideration the pain and suffering the plaintiff has endured, her loss of time, and any further loss of earning power that you may find has been occasioned by the injury. In passing upon all these questions juries are apt to get false impressions of their duty. They are giving away other people’s money, and they are apt to be led away by their sympathies with the injured person. In considering this question you ought to act as business men, and consider it as if it were a suit against yourselves, giving such damages as the evidence justifies, and not disregarding the ordinary rules. [In regard to the evidence as to the construction of this car, I charge you that this is to be considered, with all the other evidence in the case, as bearing upon the question of defendant’s negligence. The company has a right to put on such a car as the wants of the community, having regard to the neighborhood and number of people who may ride, may require. In a rural district, where few people ride on the cars, and where there are not many people or vehicles to be expected on the street, it is not negligence in itself to run cars with one person acting as both driver and conductor. The whole case is to be considered with reference to the kind of car, and whether the construction of the car would prevent the driver from attending to his duties as he should have done.] 5 The defendant requests the court to instruct the jury: 1. That there is no evidence in this case of negligence on the part of defendant. Answer: Refused.1 2. That under all the evidence in this case the jury should find for the defendant. Answer: Refused.8 3. There is no evidence to warrant the jury in finding vindictive damages. Answer: Affirmed. 4. The defendant has the right to run cars on the street on which this accident happened, and has also the right to run cars of the kind in which this lady took passage, and the passenger in such case has no right to ask the jury to give damages by reason of the construction of the ear or of its being run, under the rules, by a driver acting also as conductor. Answer: Answered in general charge.4 The jury returned a verdict in favor of the plaintiff for $2,750. A rule for a new trial having been discharged, judgment was entered upon the verdict, when- the defendant took this writ and assigned as error: 1, 2. The refusal of the defendant’s point.1 8 3. The part of the charge embraced in [ ] 3 4. The answer to the defendant’s point.4 5. The part of the charge embraced in [ ] 5 6. 7. The admission of plaintiff’s offers.6 7 8, 9. The refusal of defendant’s offers.8 9 10. The admission of plaintiff’s offer.10
124 Pa. 125Nonantum Worsted Co. v. C. J. Webb & Co. (1889)
EBB OK TO THE COHBT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY. No. 171 July Term 1888, Sup. Ct.; court below, No. 7 December Term 1887, C. P. No. 4. On September 24, 1887, Charles J. Webb and Harry E. Lincoln, trading as C. J. Webb & Co., brought foreign attachment against the Nonantum Worsted Co., attaching Thos. Dolan & Co. as garnishees. The defendant company appearing, the plaintiffs filed a statement and the cause was put at issue on February 29, 1888, under the plea of non assumpsit. On April 18th, an order was made, amending the record by adding to the title of the plaintiffs, “ assignee of Frank J. Primrose.” At the trial on April 19, 1888, the plea of set-off was added, and the facts claimed to be shown in the evidence were in outline as follows, to wit: On July 9, 1887, Frank J. Primrose, a dealer in wool at Philadelphia, being indebted to C. J. Webb & Co., in consideration thereof sold, assigned and transferred to said C. J. Webb & Co., inter alia, an indebtedness to him of the Nonantum Worsted Co., of Boston, upon an account for wools sold to said company. The balance claimed by the plaintiffs to be due to Primrose upon this sales account with the defendants, at the time of the assignment, was $2,024.34. The defendants admitted that upon the account for wool purchased of Primrose there was due him a balance of $1,091.43, but claimed that this was more than counterbalanced by a sum due the defendants from Primrose on account óf a transaction which briefly was as follows : On June 22, 1887, Primrose, without any authority to do so, had caused about 92,000 pounds of Texas wool, then in transit to him, to be billed and shipped to the defendants, and drew for $19,134.60. The defendants refused to protect the draft unless Primrose should put up a margin of $5,000, but after further correspondence, they agreed to take care of the draft on receiving $2,000 margin, which was supplied, and the draft was subsequently paid. When C. J. Webb & Co. received the assignment above referred to from Primrose, they at once served notice thereof upon the defendants. On July 18th, the defendants telegraphed and wrote Primrose that the wool, which had arrived, was not up to sample and to send further margin, saying: “The fact is we want our money, and we would much rather you would pay the advances and take the wool or have Mr. Webb do so. You know we protected your draft out of pure friendship, and not because we wanted the wool, or wanted any thing to do with it.” Correspondence, either with Primrose or with C. J. Webb & Co., continued until the time suit was brought, and then, and at the trial as well, the wool still remained with the defendants. On January 15,1888, a statement was sent by the defendant company to C. J. Webb & Co., of their entire unsettled business with Primrose, in which statement the wool was credited to Primrose, as of “ June 22, Í887, by 398 bags, $12,997.18,” or fourteen cents per pound, and showing a balance due the defendants of $5,530.70. The actual value of the wool being disputed, evidence was introduced upon the subject on both sides. At the close of the evidence, the court, Arnold, J., charged the jury: The suit is to be treated as a suit brought by Frank J. Primrose, against the Nonantum Worsted Company of Boston. Primrose bought and sold wool. He had two accounts against the company, defendant. One was what is called a sales account; that is to say, for goods sold by him to the company. Then, there was another account that is called a consignment account; that is to say, goods shipped by him to them, which they were to receive, and sell for him or take from him at a price agreeable to both. Upon the sales account, which has been sued upon here, the plaintiff, Primrose, or rather Webb & Co., assignees of Primrose, who stand in Primrose’s shoes, claim a balance of $2,024.34. That is to say, allowing such claims as the defendant company made and Mr. Primrose allowed, there was a balance due, according to their claim, with which they start out here, of $2,024.34. Now, the defendants also claim $599.13 on a transaction called the 124 bag lot. That the plaintiff, Mr. Primrose or Wehb in his place, disputes, and it is for you to say whether on the whole evidence it ought to be allowed or not. The defendants also claim other allowances: $29.88; $44.60; $136.65; $4.80 ; $70.80; $20.60 ; $14.00; $12.45 — a total of $932.91; leaving due on the sales account, according to the defendants’ statement, that is, the Nonantum Worsted Co.’s statement, $1,091.43. If, I say, with this sales account, you take the plaintiffs’ statement of claim and find for them, their claim is $2,024.34; but if you give the defendant company the allowances which they claim on some of these items of sales, the balance is reduced to $1,091.43. It is therefore for you to say, in the beginning, how much is due on the sales account. Is it $2,024.34 or is it $1,091.43 ? Having established that as the beginning, your next question and your next duty will be, to inquire whether that has been wiped out by what is called over-advances on the 393 bag transaction. It seems that that lot of Texas wool came to Primrose from Texas, and he sent it on without previous notice to the defendants, and drew on them for the amount of the draft, of which you have heard so much. Some correspondence by telegraph and letters took place between the parties before the defendants agreed to honor that draft; however, they did agree to honor it, and did pay the draft, amounting to $19,134.69. They also paid freight on this shipment, amounting to $1,691.75, making a total of $20,826.44, which they advanced upon that shipment, less $2,000.00, which Primrose paid back to them upon their draft. Therefore, the balance advanced by the Nonantum company to Mr. Primrose was $18,826.44. The defendant company have also claimed the sum of $100.12 upon that lot, for moneys which they paid to insure it in transit. They say they had to borrow the money, and they could not have raised the money to pay this large draft of $19,134.69, unless they had it insured; so that the person with whom they hypothecated it to get the money, had not only the right to the goods, but had it insured against loss in transit; and if you believe the defendants’ statement that they could not raise the money except by insuring these goods, for the purpose of borrowing money, you may, if you see fit, allow that claim. Certainly it would be an equitable claim, and such as a jury has a right to allow to parties under the circumstances, notwithstanding it had already been insured. For, remember that this company in Boston was, at that time, an unwilling party to this transaction; that is, these 393 bags of wool were sent to them without warning. They were driven on the spur of the moment to borrow the money to honor the draft which was drawn upon them, and as they say, to help Mr. Primrose; and if, in order to do that, in order to get the money to pay Mr. Primrose’s draft, they paid $100.12 for insurance, you have a right to charge that to Mr. Primrose. It is for you to say whether that should be so charged or not. If you find that the reasons assigned for so insuring that shipment were good reasons, then they form a ground why Mr. Primrose should be charged for the insurance ; and therefore that would make the claim of the Nonantum company against Primrose on the 893 bag lot, $18,926.56. Now, what was that wool worth ? It was shipped to, and received by this company, last July. It has not yet been sold. They have it on hand, and they say that they have now taken it as their own at 14 cents per pound. The question therefore for you to determine (though they have taken it — converted it, as we term it in law, to their own use), at what amount should it be charged. It was billed to them, as Mr. Primrose says, at 21 and 23 cents a pound, according to quality, and the defendants took it at 14 cents a pound. Now you have heard all the testimony as to what it was worth. You have heard what has been said by persons who said 16 cents, and whether they would give more or not. You have also heard it said that Mr. Hall and Carleton wanted 21 or 22 cents per pound. One witness said the defendants said it was worth that much; another said they did' not say that it was worth that much, but wanted that much for it. When merchants are selling their goods they are not particular about the phrases they use; in fact, when tradesmen say they want so much for a thing it is a matter of opinion, and it is not considered immoral to think that a thing is worth so much, when he wants to sell it, particularly if he has got a good bit of money in it. However, it is for you to say what the wool was worth. Was it worth 22 cents per pound; 21 cents per pound; 20 cents per pound; 18, 16, 14 cents per pound when it was received by the Nonantum Co. ? The evidence shows that the market has gone down since that time; there has been no increase of value. If there has been an increase the defendants would be chargeable with the highest price since ; but all the witnesses said that the market had gone down and that the highest market price was in last July, and therefore the whole question comes down to the market price of the wool in last July; and at what price it should be charged. * . * * ***** The court is requested by Mr. Terry, counsel for defendants, to instruct the jury upon the following points : 1. The attaching creditors, Webb & Co., stand in the shoes of Primrose, and can only claim what Primrose can lawfully claim, and if there was nothing due to Primrose from the Nonantum Worsted Company at the time of the assignment of Primrose’s claim against them to Webb & Co., your verdict must be for the defendants. Answer: Affirmed. 2. At the time, July 11, 1887, defendants received notice of the assignment of Primrose to C. J. Webb & Co., the advance by the Nonantum Worsted Company to Primrose had been made, and the claim of the Nonantum Worsted Company for over-advances legally arose, although neither Primrose nor the Nonantum Worsted Company may have known at said time the real value of the wool; and if the jury believe that, instead of the Nonantum Worsted Company being indebted to Primrose, the latter was indebted to the Nonantum Worsted Company, then C. J. Webb & Co. took nothing by the assignment, and your verdict must be for the defendants. Answer: Affirmed. 3. Primrose having admitted that the claims of the defendants against him for over-advances on the 393 bag lot of wool are valid, and that said wool has never at any time been of sufficient value to overcome the apparent balance alleged to exist by the assignment to C. J. Webb & Co., then your verdict must be for the defendants. Answer: Denied.1 4. The evidence fails to show, that at the time of the assignmenfc to C. J. Webb & Co. by Primrose, there were any moneys due to Primrose by the Nonantum Worsted Co., and your verdict must be for the defendants. Answer: Denied.3 The jury returned a verdict for the plaintiffs for $2,024.84. A rule for a new trial having been discharged, judgment was entered upon the verdict, when the defendants took this writ assigning as error: 1, 2. The answers to the defendants’ third and fourth points.1 3
124 Pa. 135In re Opening of Wayne Avenue (1889)
certiorari to the court of quarter sessions of PHILADELPHIA COUNTY. No. 127 January Term 1889, Sup. Ct.; court below, No. On March 26, 1887, a jury of six, appointed to “ view and consider the propriety of opening Wayne avenue from Washington to Carpenter streets, and if in favor of said opening to obtain releases and assess damages therefor,” submitted their report that Wayne avenue was duly laid out upon the confirmed plan of the city, and that the jury were unanimous in their judgment that it should now be opened to public use as a highway of the city. The report also set out: That Sallie E. Keyser presented a claim for damages to a country place called Engle Wald, containing about five acres, and offered in evidence a deed dated March 13, 1873, Charles M. Wagner to Sallie E. Keyser, which described the property by metes and bounds as extending across Wayne avenue to the opposite line of said avenue, the line of property conveyed on May 1, 1857, by Peter A Keyser and Mary E., his wife, to George C. Thomas. That counsel for the city objected to hearing testimony in support of this claim, because it appeared on the face of the deed produced and the conveyance by Peter A. Keyser to George C. Thomas therein referred to, that Wayne street, through the land described, is in law by the acts of the parties in the premises a public highway, by virtue of the covenants therein contained; an implied dedication prising from the conveyance to George C. Thomas of land bounded and described as having a front on the southwest side of Wayne street. That the jury, after hearing argument, had concluded that, by reason of the deeds of conveyance referred to, there was a dedication of the ground in the bed of Wayne avenue in front of this property to public use, and had therefore refused to hear any testimony on the part of the claimant. On March 31, 1887, Peter D. Keyser and Sallie E. Keyser, his wife, in right of said wife, filed the following exceptions to said report 1. Because the jury reported that there was, by reason of the deeds of conveyance set out in said report, a dedication of Wayne street, through the land described in the first-mentioned deed, to public use. 2. Because the jury should have reported that there was not, by reason of anything contained in the aforesaid deeds, a dedication of Wayne street, through the land described, to public use. 3. Because the jury refused to hear any testimony on the part of the exceptants. On April 13, 1887, after argument, the court Mitchell, J., without opinion filed, dismissed said exceptions and confirmed the report of the viewers. Thereupon the exceptants took this writ, assigning as error, severally, the dismissal of the exceptions and the confirmation of said report.
124 Pa. 138Quin v. Callahan (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY. No. 179 July Term 1888, Sup. Ct.; court below, No. 167 March Term 1886, C. P. No. 4. On March 8, 1886, Charles T. Quixl, assignee for the benefit of creditors of the Commodore Barry Building & Loan Association, filed a bill in equity against (as amended) Thomas Callahan and George G. Pierie, recorder of deeds, the prayers of which bill were, upon the facts therein averred, that the satisfaction of a certain mortgage executed and delivered to said association by said Thomas Callahan, be stricken off and declared null and void; that an account be stated between said association, and said Callahan, and that he be ordered and decreed to pay to the plaintiff whatever might be found due by him to the association, and for other relief. An answer having been filed, and issue, the cause was referred to Mr. 6r. W. Bryant, as examiner and master. By the report of the master, filed on January 25,1888, the following facts were fdund: 1. That the Commodore Barry Building and Loan Association was duly incorporated July 25, 1874, under the laws of this commonwealth, and carried on business as such until September 8, 1885, when, pursuant to a resolution of that date adopted by the association, the plaintiff was duly appointed assignee of the association, for the benefit of its creditors and as such had duly qualified. 2. That John J. Nolan was secretary of the association from its commencement in 1874 to the early part of May, 1885, when it was discovered he had embezzled about $20,000 belonging to the association; that he commenced appropriating the funds of the association to his own use in 1876, and continued to do so up to the time of liis flight in May, 1885, upon an average of about $2,000 a year, for ten years prior to March, 1885, and $200 subsequent to that date. 3. That the defendant was a stockholder and director of the association from its organization until March 3, 1885, and the owner of ten shares of' stock of the first series; that he borrowed on his said ten shares of stock, and received a loan thereon from the association of two thousand dollars less premium, and gave the association a mortgage for that amount dated Decmber 1, 1882, which was recorded; that the amount actually received by the defendant, deducting premium, was $1,934. 4. That these ten shares of stock were issued to defendant in 1874, and the instalments due thereon were regularly paid when due at the rate of ten dollars per month, for the space of ten years and nine months, and he also paid ten dollars per month for two years and four months for interest on said mortgage. 5. That the books of the association were not properly kept by said Nolan, being full of errors, and not reliable; that the reports of the auditing committees were as erroneous as the books of the association, and not reliable. 6. That the minute book of the association under date of March 3,1885, showed that a meeting of the board of directors, eleven members being present, was held at St. Augustine’s Hall, Crown street below Vine, and that the following resolution was presented: “ Resolved, that the solicitor be instructed to enter satisfaction upon the bonds and mortgages of this association of the first series that are now matured, upon the secretary certifying that the same are paid by the maturing of the stock of the first series.” 7. That the resolution was not only presented but passed by a bare quorum of directors; that two of said eleven directors were not present and four who voted for the same were borrowers on stock of the first series; that the resolution was verbally presented by the defendant who voted for the same; that the directors (except Nolan), who voted for the resolution, did so in the mistaken belief that the stock of the first series was about maturing and was worth two hundred dollars per share; that the stock of the first series on June 30, 1885, was only worth eighty-seven dollars and forty-seven cents. 8. That at the time tins resolution was passed the stock of the first series had not matured; that the association then was and had been for a long time prior thereto insolvent; the directors and stockholders were then ignorant of the great loss of the association, having no knowledge whatever of the fact of Nolan’s embezzlement; that the resolution above set forth was •the only resolution which was passed by the directors or the association on March 3, 1885. 9. That Nolan, knowing the stock in the first series had not matured' and was not worth two hundred dollars per share, with fraudulent intent furnished the attorney-in-fact of the association with a resolution purporting to have been passed by the association which was not passed; that it was not a copy of the resolution which was passed on March 3, 1885. This pretended copy of the resolution, was as follows: “At a stated meeting of the Commodore Barry Building and Loan Association, held March 3, 1885, it was on motion resolved that Wm. L. Marshall, Esq., attorney-in-fact for this association (Vide Letter of Attorney Book No. 54, page 385), be and is requested to acknowledge satisfaction of a certain mortgage given by Thomas Callahan in the sum of two thousand dollars, bearing date December 1, 1882, and recorded at Philadelphia in Mortgage Book J. O. D., No. 68, page 396, etc., and to enter satisfaction on the margin of said record. “ Extract from minutes. [Association Seal.] Attest, John J. Nolan, secretary.” 10. That Mr. Marshall, relying upon said certificate, in total ignorance of the real facts, entered satisfaction of defendant’s mortgage and the same was delivered to him marked “satisfied” by Nolan, together with the bond and policy of insurance accompanying the same. That defendant had not made any •payment on account of said stock or mortgage since March 3, 1885. Upon the foregoing facts, the master, citing Story’s Eq. J., §§ 140, 142; Bispham’s Eq., § 190; Fleming v. Parry, 24 Pa. 47; Lancaster v. Smith, 67 Pa. 427; Russell v. Church, 65 Pa. 9; West’s App., 88 Pa. 341, and Strohen v. Franklin etc. Association, 115 Pa. 273, reported his conclusions of law to be: (1) That the plaintiff was entitled to equitable relief: (2) that the entry of satisfaction of defendant’s mortgage to the association should be stricken off, on the ground that it was satisfied in the mistaken belief that the stock of the first series had matured, and in total ignorance of the fact that the association was then insolvent. The master then stated an account, finding that there was due from Thomas Callahan upon the indebtedness secured by his bond and mortgage, the sum of f>2,272.88, and recommended a decree that the recorder of deeds strike off the entry of satisfaction upon the mortgage, and that Thomas Callahan deliver up the bond and mortgage to the plaintiff and pay to him the said sum of $2,272.88, and the costs. To said report, Thomas Callahan filed various exceptions, alleging that the master erred, inter alia: 4. Because he found as a matter of law that the plaintiff was entitled to equitable relief. 5. Because he found as a'matter of law that the defendant being a director of the' association could not avail himself of the principles governing the relation of debtor and creditor, although fraud was neither alleged nor proved. 6. Because he omitted to find as a matter of law, that the mistaken belief in the value of the association’s stock induced by the negligence of the association itself was not relievable against in equity as against a stockholder who in good faith had severed his connection with the association. 7. Because he did not find as a matter of law that the association was responsible for the negligence of its auditors, whose failure to properly perform their duty in examining the association’s accounts enabled the secretary to embezzle the funds of the association which resulted in its insolvency. After argument, the court, Aiínold, J., without opinion filed, dismissed all the exceptions to the report, and entered the decree recommended by the master. Thereupon the ex-ceptant took this appeal, assigning as error, specifically, the overruling of his exceptions and the making of said decree.
124 Pa. 145Appeal of Reiff (1889)
124 Pa. 154Fischer v. Camden Ferry Co. (1889)
ERROR TO THE COURT.OF COMMON PLEAS NO 1 OF PHILADELPHIA COUNTY. No. 226 July Term 1888, Sup. Ct.; court below, No. 861 June Term 1886, C. P. No. 1. On June 29, 1886, Dominikus Fischer and Mary, his wife, brought an action on the ease against the Camden & Philadelphia Steamboat Ferry Co., to recover damages for the death of their son, claimed to have been caused by the gross negligence of the defendant company’s servants. Issue. At the trial on May 8, 1888, the following facts were made to appear in the plaintiffs’ case: On August 9,1885, Adolph Fischer, tbe plaintiffs’ son, then about fourteen years of age, with five other boys, hired a rowboat at Poplar street wharf. But one of the boys knew how to row a boat and he very little ; some of them had never been in a boat before. They crossed to the Jersey shore. On their return, the tide was going out, and while rowing against the tide, about a square out from the Pennsylvania shore and about half a square below the Market street dock, they first observed the ferry-boat of the defendant company coming from Camden and rounding the upper end of Smith’s island, about two and one lialf squares away. They continued to row until the ferry-boat was about half a square away and bearing directly upon them when they dropped their oars, threw up their hands and cried, 44 Mister, please stop the boat; we can’t swim.” John Thumm, a passenger on the ferry-boat testified: “ So, then, when we got about seventy yards the pilot gave one little slow pull with the whistle, you could just merely hear it, and when he blew the whistle he says: ‘ Damn it to hell! What the hell are you doing there anyhow?’ Just as we were about thirty yards, the boys they got up and waved their hats and hands, and they reached out their hands: 4 Mister, please stop the boat! ’ I hollered to the boys; I said: 4 Boys, hold on to your boat as tight as you can! ’ When the boat got close I laid down on the deck and I caught hold of a couple of the boys and I reached them up on the deck. Just as that there was another man coming jumping over the gates to my assistance, to help me up with the boys.” Two of the boys were drawn upon the ferry-boat; two remained in the row-boat; the witness jumped into the river and at the risk of his own life saved a fifth; the sixth was lost. 44 Q. How far did you say, w'hen the boys stopped rowing, were they from the steamboat? A. About seventy yards, when they stopped rowing. 44 Q. And the steamboat did not change its course? A. No, sir; never reversed, or stopped, or anything; but just flew right on. 44 Q. Did it go fast ? A. Yes, sir; on a pretty good rate.” Peter Ott, another passenger on the ferry-boat, testified that the boys were standing up when the boat was fifty yards away. On cross-examination: 44 Q. I understood you to say that the steamboat did not slacken up. Did it slacken up ? A. Not to my knowledge. The boat came right on, straight on its course, to this dock. He could have reversed his boat in any way at all, while he was at that distance away. Q. Had the steamboat slackened up at all before that time ? Had it slowed up at all ? ' A. The boat came right on its course.” Benjamin Ebert, one of the rescued boys called: 44 Q. You would have been going away from them all the time, if you had stopped rowing, would you not? A. We would be away from them, but they would have ketched us and turned the boat. “Q. Why did you say that? You said the rollers would have caught you. A. The reason was, that if we could get above it, it would not be as bad. “Q. That is what you thought at the time? A. Yes, sir.” On cross-examination: “Q. You thought it was better to try to get above the boat? A. Yes, sir; because the tide was coming down. There would have been wharves there into which we could turn, while below, all those wharves were where ferry-boats generally start from.” By the court: “Q. What did you say? A. We thought if we could get above it, there is more wharves we could get in where we would get shelter from the rollers, while most of the wharves that were below were where the ferry-boats go in, and we did not trust that.” When the plaintiffs rested their case, the court, Allison, P. J., on motion of defendant’s counsel, directed the entry of a judgment of compulsory nonsuit, with leave, etc. A rule to vacate the judgment of nonsuit was subsequently discharged, when the plaintiffs took this writ, assigning as error the entry of said judgment, and the order refusing to vacate the same.
124 Pa. 161Melloy's Sons v. Deal & Burtis (1889)
8 OF PHILADELPHIA COUNTY. No. 329 January Term 1888, Sup. Ct.; court below No. 254 March Term 1886, C. P. No. 3. On February 25,1886, George D. Melloy and others, trading as John M. Melloy’s Sons, brought foreign attachment against H. I. Burtis and A. J. Deal, trading as Deal & Burtis. The writ was returnable to March 1, 1886.
124 Pa. 170Byrne v. Hayden (1889)
EBBOB TO THE COTTBT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY. No. 143 July Term 1888, Sup. Ct.; court below, No. 765 June Term 1877, C. P. No. 1. On July 28, 1877, James Hayden obtained a judgment against one Martin Sheeran for $700, and on July 17th, issued an execution upon which a levy was made. A portion of the goods levied upon were sold, realizing $430.50. Other portions of the goods were claimed by Patrick Early and John Campbell, respectively. On September 18, 1877, rules for sheriff’s interpleaders were made absolute, and, the claimants having filed the usual bonds, feigned issues were ordered. These issues were called for trial on September 23,1881, judgments of nonsuit entered in each case, and motions to take off the same afterwards overruled. On May 1, 1888, James Hayden, the plaintiff in the judgment, brought actions in assumpsit against Patrick Early and John Campbell, severally, impleading Peter Byrne, the surety upon both bonds, and filed statements of claim in each case which set out the entry of the original judgment against Sheeran and that there was a balance due thereon of $350.17; the feigned issue proceedings and the filing of bonds by the claimants in $800, with Peter Byrne as surety, “ conditioned that said goods should be forthcoming upon the determination of the said issue in favor of said James Hayden;” that “said feigned issue was determined in favor of said James Hayden on November 16, 1881, and said goods have not been forthcoming to answer the said writ of execution; and therefore the said bond is in full force and virtue.” A copy of the bond in $800 then followed which recited the issuance of an execution at the suit of the plaintiff and a levy “ upon the goods and chattels mentioned in the schedule annexed and marked A, which said goods are claimed,” etc., followed by a recital of the awarding of the issue, and the obligatory part of the bond. The statement then closed with the jurat of the plaintiff. No schedule A, or copy thereof was attached. An affidavit of defence was filed in each case by Byrne, the surety, which set out that the bond given by the defendant was conditioned for the return of the goods, and upon failure thereof plaintiff was entitled to recover their value only, and that plaintiff had failed to set forth this value, but claimed to recover the balance due upon the judgment against Martin Sheeran, which he was not entitled to recover, unless the goods were shown to be of that value. On May 23, 1888, a rule was taken in each ease for judgment for want of a sufficient affidavit of defence, and on March 26, 1888, the court in banc, Allison, P. J., without opinion filed made the rules absolute, and judgments were entered in each case in favor of the plaintiff for $581.39, the balance due upon said judgment, with interest from June 2, 1877. Thereupon the defendant, Byrne, in the action against Campbell, took this writ and assigned as error the order entering judgment for want of a sufficient affidavit of defence.
124 Pa. 178Tilge v. Brooks (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY. No. 10 January Term 1889, Sup. Ct.; court below, No. 328 December Term 1883, C. P. No. 4. On July 17, 1884, J. H. Tilge and Jesse A. Tilge, trading as Henry Tilge & Co., brought assumpsit against “ Matthew Brooks, copartner of W. Howard Brooks and A. May Stevenson, trading under the firm name of W. Howard Brooks & Stevenson,” to recover upon promissory notes and a book account for goods sold and delivered to said firm in the year 1881. On July 15, 1884, the defendant filed an affidavit denying that he was a partner in said firm and pleaded to issue.* At a second trial of this case on April 2, 1888, the plaintiffs introduced evidence from which it was claimed that the following facts were shown: That on January 1, 1872, Matthew Brooks, the defendant, with W. Howard Brooks and A. May Stevenson, executed a certificate of the organization of a special or limited partnership, setting forth in Compliance with the requirements of the act of March 21, 1836, P. L. 143, that the business was to be conducted under the firm name of W. Howard Brooks & Stevenson, the general partners to be W. Howard Brooks and A. May Stevenson, and Matthew Brooks to be the special partner; that said special partner had contributed to the common stock of the firm the sum of $25,667.04, and that the said partnership was to begin on January 1, 1,872, and to terminate on December 31, 1876, and this certificate was verified by affidavit, acknowledged, and was recorded on January 15, 1872. That said certificate and affidavit were false, in that the defendant, instead of having paid into the firm stock the sum of $25,667.04, had actually paid in but $2,000 in cash, and the remainder in notes, debts, bills receivable and material, of which no appraisement had been made, as required by the statute, and most of the debts and bills receivable were bad. It was further shown, that the defendant, during the existence of the alleged special partnership, was occupied as the other partners about the store; that no sign was put up showing who was the special partner, and who the general partners, and, though the formation of the partnership was duly advertised, the plaintiffs had never seen the notice and knew nothing of its terms; that the firm failed in 1881 during which year the indebtedness to the plaintiffs was contracted, and the plaintiffs then for the first time discovered that the defendant had withdrawn his capital and retired in 1876; that no notice of defendant’s retirement had been given, and thereafter the business had been carried on in the same name, with the same sign, in the same place, and with no change in the firm books. At the close of the plaintiff’s case, on motion of defendant’s counsel, the court, Thayer, P. J., entered a judgment of compulsory nonsuit; with leave, etc. A motion to take off the judgment of nonsuit having been refused, the plaintiffs took this writ, assigning as error the entry of said judgment and the refusal of the motion to vacate it.
124 Pa. 183Pennsylvania R. v. Bowers (1889)
ERROR TO THE COURT OF COMMON PLEAS NO 1 OF PHILADELPHIA COUNTY. No. 209 July Term 1888, Sup. Ct.; court below, No. 656 December Term 1886, C. P. No. 1. On January 27, 1887, an action in caso for negligence was brought by Mary Bowers against the Pennsylvania Railroad Co., to recover damages suffered by the death, of her husband Thomas L. Bowers, alleged to have been caused by the negligence of the defendant company’s employees. Issue. At the trial on January 11, 1888, it was shown that the said Thomas L. Bowers, by trade a carpenter and builder, was killed by being struck, by a train at Comly street crossing, near Wissinomiiig station on defendant’s road, about 6:45 p. M. on February 26, 1886. The plaintiff’s case having closed, the defendant put in evidence, inter alia, an extract from the minutes of the board of directors of the company, showing that at a meeting of said board, held at the office of the company, at Philadelphia, on April 15, 1868, an act entitled “An act relating to railroad companies and common carriers, defining their liabilities and authorizing them to provide means of indemnity against loss of life and personal injury,” approved April 4,1868, P. L. 58, was read, and on motion it was resolved that the said act of assembly “ as above recited, be, and the same is hereby accepted by the Pennsylvania Railroad Company.” At the close of the case upon the evidence, Bregy, J., instructed the jury, and then answered the points presented as follows, to wit: The plaintiff requests the court to charge: 1. That the acceptance of the provisions of the act of April 4, 1868, by the board of directors of the defendant corporation, does not prevent the plaintiff from recovering a verdict in excess of $5,000, and that the jury should give a verdict for such sum as the deceased would probably have earned by his intellectual or bodily labor in his business or profession during the residue of his life and which would have gone for the benefit of his widow, without regard to the provisions of said act of April 4, 1868. Answer: I affirm that point.4 2. That the limitation of liability for damages, claimed by defendant under and by virtue of the act of April 4, 1868, has been revoked or avoided, as to the defendant corporation, by the provisions of the twenty-first section of article III. of the constitution of Pennsylvania, known as the new constitution. Answer: I will affirm that.5 The defendant requests the court to charge: * ijv # 6. In no event may a verdict exceed the sum of $5,000. Answer: Refused.3 The jury returned a verdict in favor of the plaintiff for $14,500 damages. On June 20,1888, a rule for a new trial was made absolute unless the plaintiff should release the damages recovered above the sum of $10,000, by a release to be filed within ten days; if such release be filed, rule discharged. A release having been filed within the time, judgment was entered for the plaintiff for $1.0,000, when the defendant company took this writ, assigning as error, inter alia: 3. The refusal of defendant’s point.3 4, 5. The affirmance of plaintiff’s points.4 5
124 Pa. 193Appeal of Keiper (1889)
FROM THE DECREE OF THE ORPHANS’ COURT FOR PHILADELPHIA COUNTY. No. 25 January Term 1889, Sup. Ct.; court below, No. 440 January Term 1888, O. C. On April 4, 1888, the account of Daniel Young et al., executors of the will of John Keiper, deceased, was called for audit, and on the hearing a contention arose between M. R. Keiper, the residuary legatee, and Salems Reform Church, of Elizabethville, Dauphin Co., upon the following facts : John Keiper, the testator, died July 4, 1887, unmarried and without issue, having made a last will dated July 23, 1878, duly admitted to probate, which contained among others the provisions following: “ 7. I give and bequeath to James Miller, Esq., of Elizabeth-ville, Dauphin County, Penna., the sum of one thousand dollars in trust, safely to invest the same at interest, this amount and what interest may accrue thereon to be used only towards the erection of a Reformed Church in the United States, at Elizabethville, Dauphin County, Penna., and shall not be paid by the said James Miller, Esq., until he is perfectly satisfied that no debts of any kind whatever rest on said church property, or until said amount with accrued interest would place the church entirely out of debt. “ 8. All the rest and residue of my estate, real, personal and mixed, of which I shall die seised and possessed, or to which I shall be entitled at my decease, I give, devise and bequeath to my said brother, M. R. Keiper.” In 1884, when the congregation was about to build the church, the testator subscribed $500 and stated at the time that he had made a will and had bequeathed $1,000 toward the church. He made another subscription afterward and in his lifetime had paid in all $723, which was applied to the building, not including chandeliers and lamps he supplied. It was a rule of the society that no church building should be dedicated until the debt contracted in its erection was paid, but it was shown that when the church was dedicated, in the fall of 1884, there was an unpaid debt of about $144, the most of which however had been assumed by members of the church and treated as paid. A short time before liis death, the testator, in a conversation relating to the cost of building the church, said, “ With what is back, I have given my share.” The executors offered to pay to the church the difference between $728 and $1,000. The auditing judge, Hanna, P. J., citing Monck v. Monck, 1 Ball & B. 298; Debeze v. Mann, 2 Bro. C. C. 166; Robinson v. Whitley, 9 Ves. 577 ; Roome v. Roome, 8 Atk. 181: Parkhurst v. Howell, 6 Cli. Div. 186; Swoope’s App., 27 Pa. 58; Garrett's App., 15 Pa. 212; Miner v. Atherton, 35 Pa. 528; Gill’s Est., 1 Pars. 139; Clarke’s Est., 82 Pa. 528; 1 Redf. on Wills, 379, awarded the legacy to James Miller, trustee, etc. M. R. Keiper, residuary legatee excepted to the adjudication, alleging error in awarding the sum of $1,000 to James Miller, trustee. This exception having been argued, the court in banc dismissed the exception, Ashman, J., filing the following opinion: Lord Thurlow, in Debeze v. Mann, 2 Bro. C. C. 165, remarked that “when a man gives a legacy for a particular purpose, and afterwards advances money for the same purpose, it is too late to say it is not a presumption that he meant to execute it.” This principle is amply illustrated in the authorities, among others, in Warren v. Warren, 1 Bro. C. C. 305, where a legacy was held to be in part satisfaction of a portion under a marriage settlement which the testator had overlooked; and by Hincheliffo v. Hinchcliffe, 3 Ves. 516; Roseweil v. Bennet, 3 Atk. 77; Strong v. Williams, 12 Mass. 391; Hunter v. Bryant, 2 Wheat. 32; Garrett’s App., 15 Pa. 212; Miner v. Atherton, 85 Pa. 528..... By item 7 of the will, the testator gave $1,000 “ to be used only towards the erection of a Reformed Church at Elizabeth-ville,” and not to be paid by the trustee “ until he is perfectly satisfied that no debts of any kind whatever rest on said church property, or until the said amount with accrued interest would place the church entirely out of debt.” When the will was written the erection of such a building was being canvassed, but it had not been begun. The work was accomplished, however, three years before the testator died, and the only indebtedness remaining was $144. During the time of its building, the testator contributed $728 to the church, which sum the auditing judge finds was meant for other purposes than that which was to be served by the legacy. Here was an ademption, it was contended, by the act of the legatee, by reason of which the church could justly claim only $144 of the sum bequeathed. It is true that a legatee may adeem a legacy to himself, as by paying a debt in testator’s lifetime, which was the subject of the gift: Hoke v. Herman, 21 Pa. 301. But this testator seems to have intended that, to the extent of his legacy, the cost of erection should be paid. He could effect this after the church had been built and paid for, by directing that his gift should be applied to the building fund, and should thus ■ release a corresponding sum for the general purposes of the organization. He said this in almost so many words, when he prohibited the payment until the trustees should be satisfied that no debts remained on the church property. We do not lay stress upon the fact that a will speaks only from the date of the death, and that the testator must have intended this gift to stand, although its purpose had apparently been anticipated in his lifetime. He may have rested in the belief that the legacy had been adeemed, and that the clause in his will did, not require to be revoked, because it had become, by his act, inoperative. But there was some proof that he regarded it as in full force. Shortly before his death, he replied to the statement which was made to him, that he had given his quota to the church, “ With what is back, I have given my share.” The auditing judge understood, and we think properly, by the words, “With what is back,” a reference to the legacy. Yet at that time the church had been built and paid for, even the small balance of $144 having been assumed by some of the members. While he limited his gift to the specific object of building, he, none the less, meant it for the benefit of the church. On that ground, a legacy to a priest and his successors, in trust to say masses, which in that shape was void as tending to a perpetuity, was upheld in McGirr v. Aaron, 1 P. & W. .49, because it was actually intended for the maintenance of a priest, and was therefore in ease of the congregation. So in Foy v. Foy, cited in 3 Bro. G. C. 593, a gift towards the erection and endowment of a hospital in Dorset, Lord Kenyon said, might go in aid of the endowment of any hospital already existing in that comity. The adjudication having been confirmed, the exceptant took this appeal, assigning as error the dismissal of his said exception and the confirmation of the adjudication.
124 Pa. 200Crew, Levick & Co. v. McCafferty (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY. No. 39 January Term 1889, Sup. Ct.; court below, No. 652 March Term 1886, C. P. No. 4. On January 21, 1887, an action of assumpsit brought by Ellen E. McCafferty against J. Lewis Crew and others, trading as Crew, Levick & Co., ivas tried and the jury returned a verdict in favor of the plaintiff for $113. On January 25th, the defendants moved for a new trial and a rule was granted. On March 21st, after argument before the court in banc, Thayer, P. J., the following order was made and entered upon the minute book: “ March 27, 1887. Rule discharged, on condition that the plaintiff within ten days file a remittitur for all damages over $75; otherwise, rule absolute.” In transcribing this order upon the court docket, the clerk omitted the words, “ within ten days,” therefrom. On April 20, 1887, the plaintiff filed a remittitur for all damages above $75, paid the jury fee and caused judgment to be entered. Afterwards, the defendants’ counsel called the attention of the clerk to the order as entered upon the minute book, when the clerk interlined upon his docket the words, “within ten days,” after the word, “plaintiff.” On July 6, 1888, the defendants’ counsel obtained a rule to show cause why the judgment should not be stricken off, and on September 22, 1888, Thayer, P. J., the rule was discharged and the following order made : “ September 25, 1888. It is now ordered that the record of this court made March 21, 1887, be corrected so as to read: Rule discharged, on condition that the plaintiff within thirty days file a remittitur for all damages over $75 and costs; otherwise, rule absolute.” Thereupon the defendants took this writ, assigning as error: 1. The entry of the judgment of April 20, 1887. 2. The refusal to strike off said judgment. 3. The order of September 25, 1888.
124 Pa. 203Collins v. Leafey (1889)
ERROR TO THE COURT OF COMMON FLEAS NO. 3 OF PHILADELPHIA COUNTY. No. 58 January Term 1889, Sup. Ct.; court below, No. 749 December Term 1883, C. P. No. 3. On January 17, 1884, William Leafey, by his father and next friend, Lawrence Leafey, brought an action in case against Patrick Collins and others, trading as P. Collins & Sons, to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. Issue. At the trial on May 29, 1888, in the plaintiff’s case in chief, his mother testified that her son, about two years and two months old, was sitting on the step with two other boys ; she asked Joe Sternberger, if he would mind Willie while she took her bread to the baker; when she came back, they were not there; “Lawrence brought Willie back; I examined him and couldn’t find anything the matter, but that night he had me awake all night, saying his leg hurt him. He fell asleep about 5 o’clock; he awoke about 8 o’clock; he couldn’t stand on his leg, the right leg; I didn’t call in a physician until the next day, when I took him to the Episcopal hospital; ” he remained in the hospital nearly three years and six months, in the Children’s Hospital; the screens at the factory were never fastened before the accident; not until four or five days thereafter.” Lawrence Leafey, plaintiff’s older brother testified: “I was on back of Joe Sternberger’s velocipede, and when we turned round to come up, saw screens fall on Willie. Willie was not on velocipede; he bumped against the screens and they fell over on him.” Joseph Sternberger testified: “ I had Lawrence on the back of my velocipede, and we rode down to the corner, Palethorp and Thompson streets. When we got to the corner, I turned round, and saw Mike Galen picking little Willie Leafey up. Willie was lying on the ground right in front of the wire screens, in front of P. Collins & Sons. The wire screens were standing against the wall.” On cross-examination : “ After I took the child home I came back to see what was the matter with the screens, and that is the time I found out they were not fastened.” Galen could not be found for the service of a subpoena. Other testimony was to the effect that the screens were not fastened. Physicians testified to the nature of the injury as resulting in abscesses; the plaintiff was permanently maimed or crippled; the injuries could have been caused by the fall of the screens upon him. The fall from the window or the push-cart (previous occurrences mentioned), could not have produced the inflammation; it was too recently formed. On the part of the defendants, testimony was introduced to the effect that the child was always lame before the accident, always dragged its leg; he had fallen out of the window upon the sliding cellar door, and off a sewing machine, before this fall; he was scrofulous; that the screens were usually fastened in the daytime by being tied by a string to a fixed screen. In rebuttal, witnesses testified for plaintiff that he was never lame before the accident, and was a strong, healthy child. At the close of the case upon the evidence, the court, Fin-letter, P. J., charged the jury as follows: This action is brought to recover damages for an injury which, it is alleged, arose from the negligence of the defendant. The first question for you to determine in this case is whether the screen fell upon the child. [On that question, you have the testimony of the older boy, who describes all that they were doing in the neighborhood of the screen, and also describes that he saw the child on the ground, and that the screen was upon him, and that McLean picked him up.]1 The smaller boy, at that time four years of age, has told you that the boy caught hold of the screen, and it foil upon him. There is no doubt but that the little boy thought he was telling the truth; but, inasmuch as five years have passed, and as this child was five years of age at that time, it is proper I should say to you that you should take his version with a great deal of caution. There are no other witnesses that testify upon this question, but there are other facts that perhaps may have some effect upon the question of whether the screen fell upon the child, or not. [In the first place, you have the testimony of the nephew. And he tells you that the next day the mother of the child had spoken to him about the screen falling upon the child.] 3 He was then in the employment of the defendants, and had charge of the screen himself. [In addition to that, you hav¿ the testimony of the colored man, who was also an employee of the defendants, to whose attention this subject, the falling of the screens, was called.] 3 Again, [you have the undisputed fact that McDare, an employee of the defendants, was there, and saw the accident occur. At all events, he picked the child up.] 4 In addition to all that, [you have the fact that the child was carried home as if hurt, and it was regarded as if . there had been an accident; there is no evidence in this case that the child received any other injury which induced the parties to take it home.] 5 [There is no evidence that anything else than the falling of the screen injured it. There is no evidence that it fell while playing and was thus injured. There is no other evidence to account for what appeared to be an injury to the child.] 6 [I have referred to it as a fact that these employees of the defendant were there nearest the accident, and, to a certain extent, understood the injury, and had every opportunity to inquire into it and ascertain whether at that time the screen had fallen upon the child or not. There is, in consequence of all that knowledge, no evidence which has attempted to explain in any way the fact of how the accident occurred at that time, which did occur.] 7 Now, from all these things, gentlemen, it is your duty to carefully consider, especially the testimony of the child. It is for you to say whether or not the screen at that time fell upon the child. If it did not, there is an end to the case. If, however, you are satisfied from the testimony that that is so, that the screen did fall upon the child, then you proceed to the next question which arises in the natural order of things. If the screen fell, did it produce the injury complained of? Now upon that question you are driven entirely to the testimony of the witnesses who saw the child at the time, and to the testimony of the doctors. And it is not necessary to go over the testimony in detail. But the doctor who first saw the child said he saw evidence of inflammation. That doctor also tells you that the result which followed that inflammation, ulcers and things of that kind, might have been produced by the falling of the screen upon the child. There does not appear to be any answer to that testimony, except tbe assertion that the boy was scrofulous, and that these sores pointed to came from that. I don’t recollect any witness who testifies that this was scrofulous. Of course, if the jury do recollect such testimony, they will give it the proper weight. There is certainly no witness who says that at that time the child had scrofula. You will understand that there is a distinction between saying one has scrofula, and he is scrofulous; every one is scrofulous who has that condition which may be developed into scrofula. As I said before, there is no evidence at all that the child was scrofulous at that time, or is scrofulous now. I don’t know whether the doctors have said anything about it; but it seems to me if a person was scrofulous it would require a less amount of violence or injury to develop scrofula proper, or such things as have been testified to as existing in this child. The question you are to determine is not whether this child was scrofulous at that time, or now; that is not your duty. Your duty is to ascertain from the evidence in this case whether the injury the child did receive did develop into scrofula. Now, it is not a matter of any consequence that the child was in that condition of body known as scrofulous, or liable to develop a particular injury of this kind. The defendants are just as much liable if the hoy was scrofulous and this injury produced the result described, as if the child was in perfect health at the time. Now, gentlemen, if on a fair and full consideration of the testimony you are not satisfied that the result was the necessary result of the injury the boy received at the time, your verdict will be for defendants. But if you are satisfied tlie result was from tbe injury he received, then you must proceed to the other considerations of the case. Now, in eases of this kind, as doubtless you have heard, it is not only necessary that the defendant should be negligent, but it must appear that the plaintiff should not have been. In this particular case the child, was but two years of age, and it is my duty to say to you, gentlemen, that a child of that age could not be held accountable in an action of this kind. In other words it could not be negligent, and therefore in this case the single question for you to determine is whether the defendants were negligent in the manner they are charged with, with the screen. [I need scarcely say to you that it was their duty, and it is the duty of every one who occupies the highway, to do so with such care that no injury can happen to any one.] 8 You have heard the evidence in relation to this screen. All the witnesses for the plaintiff testified it was not in any way fastened, and had not been for a long time before the accident happened. The defendants have produced one witness, and even he, who took charge of the screen, was unable to tell you that it was fastened before the accident. He tells you that the fastenings were partly taken away. It is for you to say if it had been fastened upon that day or at successive periods it was a proper and careful fastening of the screen. I shall call your attention to the fact that in the use of the highway in cases of this character it was their duty to know the habit of the children of tender age. It was their duty to know whether they were likely to take hold, or run against, or interfere with it, or do anything that would have a tendency to disturb it. It is your duty, gentlemen, in considering this question of carelessness or negligence, in considering whether the defendants took the proper care, to consider the habits of children, and apply them to the facts of the case as you may find it. Of course, it altogether depends as to how you find the facts, whether the defendants in the use of the screen used it with care, recognizing the rights of everybody in the community; using such care as a reasonably prudent person would have taken ordinarily under the circumstances. If you should find there was no negligence on the part of the defendants, then, of course, your verdict will be for the defendants. If, however, you find them negligent then an action of damages arises. Now, [in estimating damages, you are to consider, in a case of this kind only, the pain and suffering of the child in consequence of the injury. There is no rule of law to assist you in arriving at a conclusion. That is a matter entirely for yourselves.] 9 [He is also entitled to compensation for, first of all, tbe deformity which, the doctor has said, resulted from this accident. That is a matter, gentlemen, left entirely to your own discretion and judgment.]10 If there is a permanent injury and deformity arising from the accident, then the principal question for you to determine is how far it has injured his earning capacity. The doctors have told you that the leg being contracted, and they have given you the condition of his leg, I may assume and you may assume that for all hard labor, such as requires a sound body, arms, and legs, for all such labor as that, he has been incapacitated; lie cannot perform the labor that a person would ordinarily perform. In considering this question you must also consider that while he may be thus impaired, still there are a number of avocations in which he would be just as efficient as if he had legs and arms unimpaired. I need not go over the number. It is your duty to consider that. In other words he is not hopelessly helpless, because he is lame. There is another consideration, that there are the highest fields of labor in which his lameness would not be felt. There are numbers of avocations in life, such as keeping store and professions, in which this injury, this lameness, would not interfere with his success in life. But, of course, in any of the higher fields of labor there is required a complete education and good training. [In considering this ease you will consider what compensation you ought to give him from the time he is twenty-one. Your measure of damages will be for the time he may live. And for all that time you will compensate him for the time for •which the injury has interfered with his earning capacity.] 11 I refuse the defendants’ point, which reads as follows: If the plaintiff was engaged in play with his companions, upon the public street, and in the course of such play ran against and knocked down the screen, the defendants are not liable for any injury which ensued, the children being trespassers in using tbe highway for purposes for which it was not intended. The jury returned a verdict in favor of the plaintiff for $5,000. A rule for a new trial having been discharged, tlie defendants took tliis writ, specifying as errors: 1-11. The several parts of the charge embraced in [ ] 1 *°11
124 Pa. 215Schuylkill R. v. Harris (1889)
ERROR TO THE COURT OR COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 79 January Term 1889, Sup. Ct.; court below, No. 773 December term Í88o, C. P. No. 2. On January 30, 1886, a petition was filed by the Schuylkill River East Side Railroad Company for the appointment of viewers to assess damages for the entry upon and occupation of the land of H. G. Harris, in thte 26th ward, Philadelphia. On January 18, 1887, a report of viewers was filed awarding damages to H. G. Harris in the sum of $3,250, and on January 26th, Amanda G. Harris, to whom as the real owner of the land all damages had been assigned, entered an appeal from the award, and on March 16th, an agreement was filed for an issue on the appeal. At the trial of the issue, beginning on'February 7, 1888, before Mitchell, J., the jury returned a verdict for the plaintiff for one cent damages. A motion and reasons for a new trial were filed and rule granted, which rule on April 23d was made absolute. On April 28, 1888, on motion, of the claimant, a rule was granted to show cause why his appeal from the award of the viewers should not be withdrawn, and on June 7th, the following order was made : “ So much of rule of April 28,1888, as does not apply for leave to withdraw appeal and discontinue issue framed thereon, withdrawn; ” but on June 8th, the rule to withdraw the appeal was made absolute, and the same day judgment was entered upon the award in favor of the claimant.1 On June 25, 1888, on motion of the railroad company, a rule was granted to show cause why they should not enter an appeal from the award, nunc pro tunc. An answer having been filed, this rule was discharged on October 10, 1888,3 and on October 12th the claimant caused a writ of fieri facias to issue. On October 18, 1888, on motion of the railroad company a rule was granted to vacate the order of June 14th confirming the report of viewers and entering judgment thereon, and that the writ of fieri facias be stayed. On October 81st the court set aside the writ of fieri facias and discharged the rule as to the other motions.* Thereupon the railroad company took this writ, assigning as error, in substance: 1. The order of June 8, 1888, making absolute the rule to withdraw the appeal, confirming the report of viewers and entering judgment thereon.1 2. The order of October 10th, 1888, refusing to permit the company to enter an appeal from the report of the viewers nunc pro tunc.a
124 Pa. 219Ridge Ave. Pass. Ry. Co. v. Philadelphia (1889)
124 Pa. 225Ditman v. B. F. Raule & Co. (1889)
_ ERROR TO THE COURT ON COMMON PLEAS NO. 3 ON PUTT, A DELRHIA COUNTY. No. 166 July Term 1887, Sup. Ct.; court below, No. 178 September Term 1886, C. P. No. 8. On November 20,1886, upon a single bill dated October 12, 1886, for $100 payable on demand, a judgment was entered in favor of B. Frank Paule & Co. against G. W. Drumeller for the sum of $110.60, including attorney’s commissions and interest. On the same day an execution was issued, upon which the sheriff made a levy upon three certain printing presses and other property of a printing establishment. These presses and other property were claimed by Joseph G. Ditman, and on December 6, 1886, an issue was formed upon a sheriff’s inter-pleader, wherein the claimant was made plaintiff and the execution creditors defendants. At the trial of the issue on April 13, 1887, it was shown in proof of the claimant’s title that on March 9,1886, Drumeller, the execution defendant, was indebted to Joseph G. Ditman in the sum of $348, and there were executions out against him upon indebtedness to others to the amount of $230. On the day stated, Ditman took from Drumeller a bill of sale of all the property in his printing office, including that in dispute, and paid in cash $230 to be applied to the executions. The consideration set out in the bill of sale was $578, covering the indebtedness to Ditman and the cash paid to discharge the executions, and it was fully as much as the property was worth. In the same transaction, Ditman made a lease to Drumeller demising to him all the property covered by the bill of sale for the term of one year from March 12,1886, for the rent or sum of $578 payable in equal monthly instalments, on the twelfth day of each month, the first payment to be made on April 12, 1886, and, in default of payment of the rent as agreed on for five days, the lease was to become void with the right to the lessor to enter and remove the property, the lessee to have the right at any time during the continuance of the lease to purchase the property for -$578. The property remained in the same building and in the custody of Drumeller until levied upon by the sheriff. The court, Finlettee, P. J., charged the jury: “ This is a question of fraud in law and it is for the court. I charge you to find a verdict for the defendants.” A verdict having been rendered for the defendants, a rule for a new trial was discharged and judgment entered, when the plaintiff took this writ assigning as error the instruction to the jury to find for the defendants.
124 Pa. 229Hessel v. Fritz (1889)
1 OF PHILADELPHIA COUNTY. No. 15 July Term 1888, Sup. Ct.; court below, No. 600 December-Term 1887, C. P. No. 1. On January 11, 1888, upon an affidavit filed with a copy of a lease from James P. Rossiter to Jacob B. Lefevre and Wm.
124 Pa. 233Hessel v. Johnson (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 8 OF PHILADELPHIA COUNTY. No. 184 July Term 1888, Sup. Ct.; court below, No. 669 March Term 1888, C. P. No. 3. On May 16,1888, upon an affidavit filed with a copy of a lease by Moses T. Johnson, agent for Horatio M. and Mary Bell Allen, to James P. Rossiter, dated January 22, 1886, demising a messuage and tenement at Tenth and Race streets, for the term of fifteen months from January 1,1886, and under the authority of a provision in said lease, a judgment in ejectment for the demised premises was confessed in favor of “ Moses T. Johnson, agent for Horatio M. Allen and Mary Bell Allen, to the use of Clinton S. Fritz, against James P. Rossiter.” On June 6, 1888, a writ of habere facias and a writ of fieri facias for costs were issued. On June 11th, the sheriff made return to the writ of habere facias that he went upon the premises and found the first floor and cellar thereof “ in the possession of one Henry Hessel, who claims by a title paramount to the defendant in these proceedings, as appears by his affidavit served upon me and which I hereunto annex.” The affidavit of Henry Hessel attached to said return set forth, inter alia, as follows: “ That affiant is in possession of said premises by, through and under a verbal lease made to and with James P. Rossiter, as agent of the owners or reputed owners of the said messuage or tenement, made on the sixteenth day of August, A. D. 1887, and that he has held possession thereof continuously to this date. “ That the said James P. Rossiter is not now, nor never has been, possessed of the said floor and cellar of said messuage or tenement in said writ of habere facias possessionem described, and that affiant does not hold possession of the same by, through or under, the said James P. Rossiter. “ That a writ of habere facias possessicmem has previously been issued and directed against the said part of the said messuage or tenement by the said Clinton S. Fritz, as assignee of the said James P. Rossiter, directed against one Lefevre & Lancaster, to which your petitioner made his return, setting up his possession, and the right by which he held the same as set up in this petition, and upon the court below ordering and directing the sheriff to proceed and eject your petitioner, the Supreme Court, upon a writ of error brought, granted affiant a rule on the sheriff to withhold proceedings on said writ of possession, pending the writ of error, which is made returnable to the first Monday of January, A. D. 1889, and which is still pending and undetermined, and further deponent saith not.” On June 21,1888, upon the petition of the use plaintiff, a rule upon the sheriff to show cause why he should not proceed to execute the writ of habere facias was granted. On J une 30th, after argument, the court in banc, Finletter, P. J., made said rule absolute, whereupon Henry Hessel took this writ, assigning the order making the rule absolute as error.
124 Pa. 237Saunders v. Gould (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF PHTLA-DELPH1A COUNTY. No. 170 July Term 1888, Sup. Ct.; court below, No. 41 September Term 1883, C. P. No. 1. On August 4, 1883, an action of ejectment was brought by Samuel M. Gould against Oscar P. Saunders to recover two bouses and lots, to wit, No. 928 South Fifth street, and No. 635 Lombard street, Philadelphia, with notice of claim for mesne profits. Issue. At the trial on February 1, 1886, the essential facts made to appear were as follows : On October 14, 1872, by deed in partition proceedings, C. W. Hepburn became the sole owner of the properties in dispute and other properties, one of them on Sixteenth street, subject to the following liens: 1. Mortgage of W. L. Brown, $6,000; October 19, 1868. 2. Judgment of James Allen, $500 ; October 25, 1868. 3. Judgment of J. A. Simpson, $650; July 21, 1869. 4. Mortgage and judgment to Silas Betts, $1,200; January 3, 1870. 5. Judgment of J. A. Simpson, $500 ; March 8, 1870. 6. Judgment on Brown mortgage', No. 1, July 18, 1870. In December, 1872, the property on Sixteenth street was sold at sheriff’s sale upon a writ from the Simpson judgment, No. 5, for $2,500, and of the purchase money the sheriff paid to the Allen and Simpson judgments, Nos. 1 and 2, the debt, interest and costs in full. In February, 1873, at a sheriff’s sale upon a writ issued from same judgment, No. 928 South Fifth street was knocked down to H. F. Hepburn; and in April, 1873, at a sheriff’s sale upon a writ issued from the Brown judgment, No. 6, No. 635 Lombard street was also knocked down to H. F. Hepburn; but in both cases, the properties were returned as sold to Samuel M. Gould, the plaintiff, and sheriff’s deeds executed and delivered to him. The properties in dispute were occupied by tenants, and the rents were collected by G. W. Hepburn until in May 26, 1874. After that date and until March 1883, the plaintiff received the rents and was in control. In December, 1879, the judgment on the bond accompanying the Betts mortgage, No. 4, was revived, and in 1882 an execution was issued and levy made upon both the properties in dispute. Then Mr. Gould filed a bill in equity for a decree that he held the properties described freed and discharged from the Betts mortgage and judgment, and to restrain the plaintiff in that execution from proceeding to a sale of the same. In this bill the plaintiff set out the ownership of the properties by O. W. Hepburn, subject to the liens as hereinbefore stated; the sale of the Sixteenth street property in December, 1872, and the application of the purchase money; the sales of the properties in dispute in February and April, 1873, and that they had been bid off by H. F. Hepburn, as attorney of the execution defendant; that at the request of H. F. Hepburn and C. W. Hepburn, he had agreed to loan C. W. Hepburn $4,000, and on the same day paid $2,000, and on June 2, 1873, the remaining 82,000; that these loans were secured by having the sheriff make the deeds for the two properties directly to him; that the loans were to be repaid in five months, and various attempts to repay them having failed, on May 26, 1874, C. W. Hepburn executed and delivered a quit-claim to him for all his interest in the properties. The plaintiff in this bill filed also an injunction affidavit setting forth the same facts. The injunction prayed for in the bill was refused, and in February, 1883, at the sheriff’s sale which followed, the plaintiff gave notice that C. W. Hepburn had no interest in the properties to be sold, of the bill in equity which he had filed and its prayers upon the equities therein set forth, and that a purchaser would acquire no title whatever, but would take subject to all said equities. The plaintiff himself bid at the sale, but the properties were knocked down to O. P. Saunders, the defendant herein, to whom the sheriff’s deeds were acknowledged and delivered and who went into possession. Mr. Saunders was then made a party to the equity proceedings, but the bill was finally dismissed, when the plaintiff brought this ejectment. The defendant, in the trial' of this case, put in evidence the sheriff’s deeds to himself made in 1883 for the property in dispute and called IT. F. Hepburn who testified in substance that he had bought in the properties at the sheriff’s s’ale in 1873 as the attorney for C. W. Hepburn; that he then arranged with Mr. Gould to raise money on them and that Mr. Gould should hold the titles until C. W. Hepffrarn could repay the money; that Mr. Gould having had the deeds made in his own name, advanced the purchase money, and the witness had paid it into the sheriff’s hands to be appffied to the liens upjon it, and Mr. Gould had made an agreement in writing to the effect that he was to hold the properties for C. W. Ilepburn and convey them to such persons as he might select, on the repayment of his money with a certain interest; that the transaction was entirely a loan, and C. W. Hepjburn knew of it from beginning to the end, “ and that there vras nothing dishonest about it so far as Charles W. Hepburn was concerned.” The plaintiff testified in substance that the facts set out in his bill in equity and injunction affidavit were incorrectly stated therein; that he did not loan money upon the properties, but bought them absolutely for $4,000 from H. F. Hepburn, who had bid them off at sheriff’s sale; that shortly afterwards, H. F. Hepburn came to him saying that he was the attorney of C. W. Hepburn, the former owner of the properties, who was soon to receive a large sum of money, and as soon as he received it he would like to purchase the properties back, and would pay $2,000 more than he, Mr. Gould, had paid for them; that he agreed to this and September, 1873, was fixed as the time for payment; that the time was then extended to November, and again to December, 1873; that still more time was given and finally on May 26,1874, C. W. Hepburn having failed altogether, he executed quit-claims to the plaintiff for all his interest and claim in the properties. When the case closed upon the evidence of which the foregoing is an outline, the defendant moved the court to strike out of the testimony and withdraw from the jury all evidence of any title to the properties in dispute in the plaintiff, other than the title of which he gave notice at the sheriff’s sale at which the defendant bought. By the court: Motion refused.1 The court, Biddle, J., charged the jury as follows: I am very sorry that the first case that you have been called on to try has been so protracted an one, and necessarily so tedious to you because most of the questions involved in it are questions of law which I have to decide and not questions of fact which you have to decide. I will endeavor in as few words as I can to call your attention to the points which belong to your province. This action is brought by the plaintiff, Mr. Gould, to obtain possession of two pieces of property, one No. 928 South Fifth street and the other No. 635 Lombard street. These properties were owned by Charles W. Hepburn, Jr. There were two judgments which were liens upon the property, one of $650 and the other of $500. Subsequently to these there was a mortgage for $1,200, which has been called the Betts mortgage, and subsequent to that there was another judgment held by Mr. William Brown. On two of these judgmenta both of these properties were sold to Henry F. Hepburn, attorney. Now these sheriff’s sales, if they were made in good faith to a third party, would throw all these incumbrances out and give a perfect, good title to the purchaser. They were, however, bought at this sale by Mr. Charles W. Hepburn, the very man upon whose land they were incumbrances. He permitted the sale and bought them in when they were knocked down by the sheriff. In a case of that kind they do not discharge the incumbrances on the land, hut the title he acquires is for the benefit of his creditors. When, then, he bought those two properties, as the first two judgments had been paid, he still held it subject to the Betts mortgage. Subsequently this property he either sold or mortgaged to Mr. Gould, the plaintiff here, but if he had either actual or constructive notice of these facts he stands in no better position than Charles W. Hepburn, and the sale under the Betts mortgage has divested his title to this property. On January 32, 1888, this identical gentleman in this court swore that on April 19, 1878, at the urgent solicitation of the said Henry F. Hepburn and Charles W. Hepburn, he agreed to loan to the said Charles W. Hepburn the sum of $4,000, and on the same day paid to the said Henry F. ITepbum the sum of $2,000, and the balance thereof on June 22, 1873. That he swore was the transaction at that time, two years ago. At present be swears that he bought this property of Henry F. Ilepbnrn and had nothing to do with Charles W. Hepburn in the business. Now being confronted with that affidavit in this case and asked wbat it meant, that a man could swear to facts so utterly inconsistent, he has explained that that was done by his lawyer who drew up the affidavit. There are some things, gentlemen, wbicb a lawyer does for you for which you are not responsible, and it would be very unreasonable to hold you responsible. You do not draw up wbat are called the pleadings, tbe papers in a case which are filed in the office; and you do not select what mode or what kind of suit your lawyer is going to bring; that is a matter of discretion. But did any one ever hear that when you are required to make an affidavit of the facts in a case, you are at liberty to perjure yourself because the lawyer wrote the affidavit? Now it may be perhaps in order to take every reasonable view of the case, that a man may have signed something drawn np by another which he did not intend to. In this case we are met with this further fact: the affidavit was made on January 12, 1883, and the application for an injunction was made on this very court two weeks afterwards, on January 24, 1883, in the presence of this very gentleman, and it was read to the court, and this court was asked to grant an injunction on the truth of that affidavit which he now swears was false. Now, this statement that he then made is corroborated by Mr. Hepburn as precisely correct, as what did occur at that time, and Mr. Simpson, the lawyer of this gentleman, testified that he wrote this paper at his dictation; that he knew nothing of the facts of the case; the facts were given to him by his client, and were sworn to by the client and not by him. Now if he knew that this property had been sold as the property of Charles W. Hepburn and also knew that it had been bought in by Charles W. Hepburn and that his attorney was trying to sell it, these circumstances should have put him upon inquiry to discover exactly what he was buying and what were the circumstances surrounding the case, and he would at once have learned that Charles W. Hepburn was the purchaser and that the purchase by him would not divest these liens upon the property, although they were sold under incumbrances which were prior to them in date, and at the very time that he bought these properties, when he was asked yesterday how it was that when he bought them in 1873 he did not go into possession until 1874, he says, “I have given a consent, a tacit consent that Charles W. Hepburn might have the rents till the 19th of September, 1873, and I, by the manoeuvring of his counsel,- did not get possession till 1874, and did not collect the rents till that time.” So that in addition to what he consented to in 1873 he also tells us here that he allows this Charles W. Hepburn, with whom he said he had no connection whatever, to keep possession of the property and collect the rents. Neither could any quit-claim deed given under these circumstances by C. W. Hepburn benefit him. Any title which he could give after the sheriff’s sale to him, would still be subject to the Betts mortgage. Under the Betts mortgage both these properties were sold to the defendant in this suit. It is, however, contended by the plaintiff that the Betts mortgage did not cover the property 685 Lombard street, because two of the parties who had once owned it had released it from the lien of the mortgage. This they had the power to do if they had a power to do it absolutely, or if, while holding the legal title, it was an honest transaction. It is, however, contended here on the part of the defendant, that Mr. Smithers, who signed one release only, held it as collateral security, in which case he could not release the property; and that Mrs. Brooker, who was an administratrix, released it fraudulently and without any consideration whatever. If you find this to be so, it would not release the property, but would leave this property still subject to the Betts mortgage. In regard, then, to the house No. 928 South Fifth street, the purchase at the sheriff’s sale by Charles W. Hepburn, did not divest the incumbrances existing on the property, and if Mr. Gould was by the circumstances of the case of which I have spoken put upon inquiry, and knew, or was quite cognizant of the facts, he stands in no better position than Charles W. Hepburn. As to the property, No. 635 Lombard street, if you should think that the releases were not fraudulent, your verdict as to them should be for the plaintiff. If they were fraudulent, either through design or defect of power to release, your verdict should be for the defendant also for that property. If you find for the plaintiff, he is of course entitled to the damages of the rents or yearly value in this property during the time of which he was kept out of possession. If you should find, however, for the defendant in this ease, of course there would be no question of damages for you to consider. But the main point of the ease, as I have said to you, was the knowledge of Mr. Gould of the whole of this transaction— the whole of this arrangement by which the property of Charles W. Hepburn should be put out of the reach of these incumbrances upon his property. The defendant asks the court to instruct the jury: 1. The record showing that all judgments and claims ahead of the Betts judgment and mortgage amounted to but $1,150, and the judgment under which 928 South Fifth street was sold, showing that a previous execution had realized $2,500, more than double the amount necessary to pay these prior judgments, any purchaser at the sale of February 8, 1873, under that judgment, was put upon his inquiry to such an extent that inquiry became a duty, and inquiry would have furnished the purchaser with the knowledge that all prior judgments had been paid, debt, interest and costs, and that the lien of the Betts mortgage and judgment were not discharged by this sale and that the purchaser would take subject to them. Answer: I refuse to so charge, except as answered in the general charge.6 9. As plaintiff dealt directly with Chas. W. Hepburn and his attorney, in this mortgage transaction, and knew that Charles W. Hepburn was the owner of the properties both before and after the sheriff’s sales, he was put upon inquiry as to the incipiency of Charles W. Hepburn’s title, and is bound with notice of the fact that all judgments and claims prior to the Betts judgment and mortgage had been paid, debt, interest and costs, and that the Betts judgment and mortgage had not been divested. Answer: I refuse to so charge, except as answered in the general charge.7 13. That an absolute conveyance with a separate defeasance, the former being recorded and the latter not, is an unrecorded mortgage, which is good for nothing as a conveyance because it is in fact not a conveyance, and is equally worthless as a mortgage because it does not appear by the record to be a mortgage. Answer: I refuse to so charge, except as answered in the general charge.8 14. That an absolute conveyance with a separate defeasance, the former recorded and the latter not, is a mortgage unrecorded ; it gives no rights as against any creditor of the mortgagor whose debt was contracted before notice was obtained or the transaction took place. Answer: I refuse to so charge, except as answered in the general charge.9 18. As plaintiff acted in the mortgage transaction through Henry F. Hepburn (who had been his attorney in other matters), as his attorney or .adviser, and as Henry F. Hepburn knew at the time of the said sales, that all judgments and claims prior to the Betts judgment and mortgage had been actually paid, debt, interest and costs, and that the sheriff’s sales of February 3 and. April 7, 1873, had been procured or suffered by Charles W. Hepburn to take place, plaintiff is also affected with notice of these facts, and that the Betts judgment and mortgage had not been divested. Answer: I refuse to so charge, except as answered in the general charge.10 19 ’-. That upon the conveyances and proceedings in court, and other papers offered in evidence, the plaintiff is estopped from setting up the title offered in evidence by him, and upon which he claims to recover the premises described in the writ. Answer: I refuse to so charge, except as answered in the general charge.11 20. Under the evidence, the judgment should be for the defendant. Answer: I refuse to so charge.13 The jury returned a verdict for the plaintiff for the properties described in the writs, and for $1,768, as mesne profits. A rule for a new trial having been discharged, on July 1,1886, judgment was entered upon the verdict. On July 21, 1886, writs of habere facias and fieri facias issued, and the plaintiff was put into possession. On June 29, 1888, the defendant took this writ assigning as error, inter alia : I. The refusal of the defendant’s motion.1 6-10. The answers to the defendant’s points.6 40 10 II. The answer to defendant’s point.11 12. The answer to defendant’s point.13
124 Pa. 253Wilkinson v. Buist (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY. No. 177 July Term 1888, Sup. Ct.; court below, No. 620 December Term 1887, C. P. No. 2. On February 8, 1888, Robert Buist, Jr., brought assumpsit against Robert A. Wilkinson to recover the contract price of land under a written contract of sale between the plaintiff and defendant, dated June 9, 1887, wherein tlie plaintiff agreed to sell and tlie defendant to buy a tract of 129 acres in tbe-27th ward, Philadelphia, for tlie sum of $125,000, the contract providing: “The title to be good and marketable and clear of all incumbrance.” Issue. At tlie trial on May 2,1888, it appeared that when the time of performance under the contract bad arrived, tlie plaintiff tendered to defendant a deed for the property executed by himself and Helen Jane Buist and Emma L. Chambers, claiming that these tliree as tenants in common were possessed of a good and marketable title to the wdiole of the land described in tlie contract. This deed the defendant refused, upon tlie ground that the parties joining in the deed tendered were not possessed of a good and marketable title to tlie wliole tract, but only to undivided interests in the same, as tenants in common with Stella Buist and Jane Buist, who owned an undivided one sixth of the estate and an interest in remainder in an undivided one twelfth. The plaintiff put in evidence the contract with the defendant and showed a good title in Robert Buist, Sr., who died on July 13, 1880, leaving a will dated March 3, 1877, duly admitted to probate, and which was as follows: “ 1. I direct my just debts and funeral expenses to be fully paid and satisfied as soon as conveniently may be after my decease. “ 2. I give and bequeath unto my dearly beloved wife, Ellen M. Buist, my wearing apparel and all the furniture and provisions which may be in the house at the time of my decease. “ 3. I will and direct tha,t my executors hereinafter named shall pay the income and interest of the residue of my personal estate to my said wife semi-annually for and during the whole term of her natural life, and further that they shall allow her to retain possession of all my silver plate for the same period without giving security therefor. “ 4. I give, devise and bequeath unto my said wife all my real estate whatsoever and wheresoever situate for and during the whole term of her natural life. “ 5. I authorize and empower my said executors and the survivors or survivor of them at any time after my decease in their discretion to sell and convey in fee simple to any person or persons for such price or prices as they shall deem sufficient all or any portion of my said real estate whatsoever and wheresoever situate. It is further my will that the proceeds of all such sales of my real estate whenever made shall be held by my executors in trust for the uses and purposes declared in this my will in relation to the said real estate, and that the purchasers thereof shall not be held in any wise liable for the application or misapplication of the purchase moneys therefor. And I further direct that all investments and re-investments of the proceeds of such sales as well as of my personal property and estate shall be, made in first mortgages of improved real estate situate in the city of Philadelphia, in the public loans of the state of Pennsylvania, or of the United States, of the city of Philadelphia, or in such other securities as may be authorized by law. And the said executors shall have power to alter and change the investments of my said estate and to make all proper transfers of the securities held by them for that purpose. “ 6. It is further my will and I do hereby direct, order and devise that immediately after the decease of my said wife, the whole of my real and personal estate including the proceeds of all such real estate as shall have been sold by my executors in the lifetime of my said wife shall be divided into six equal parts or shares, and three of such equal parts or shares (being one half part of my said estate real and personal) 1 hereby devise and bequeath unto my daughter Helen Jane Buist her heirs executors administrators and assigns, one other of such equal parts or shares I give devise and bequeath unto my son Robert Buist his heirs executors administrators and assigns, one other of such equal parts or shares unto Stella Buist and Jane Buist children of my deceased son John M. Buist their heirs executors administrators and assigns, and the remaining one of such equal parts or shares I give devise and bequeath unto Emma Louisa Chambers daughter of my said wife by a former marriage to hold for and during the term of the natural life of her the said Emma Louisa Chambers and upon her decease then I give and bequeath one half part of said last mentioned part or share unto my said son Robert Buist Ms heirs, executors, administrators and assigns, and the other half part thereof unto my said grandchildren Stella Buist and Jane Buist their heirs, executors, administrators and assigns. “ 7. I nominate and appoint my said wife Helen M. Buist my said son Robert Buist and daughter Helen Jane Buist to be the executors of this my last will and testament. “ In Witness Whereof,” etc. It was then shown that letters testamentary upon said will were duly granted to the executors named therein, and that Helen M. Buist, the widow, died on February 26, 1881; that on July 9, 1883, after some proceedings upon their petition to the Orphans’ Court, which were put in evidence, prout the same, but were not shown in the paper books, Robert Buist, Jr., and Helen Jane Buist, as surviving executors of the will of Robert Buist, Sr., conveyed the premises described in the contract to John J. S. Rodgers ; and that subsequently by deed duly recorded, John J. S. Rodgers conveyed the same premises to Robert Buist, Jr., Helen Jane Buist and Emma L. Chambers. Having proved the tender of a deed from Robert Buist, Jr., Helen Jane Buist and Emma L. Chambers to the defendant, the plaintiff rested. The defendant offered no testimony, but requested the court, Mitchell, J., to charge the jury that “ The power of sale granted to the executors in the will of Robert Buist the elder was a power which expired upon the death of Helen M. Buist, the widow of said Robert Buist, the elder, and as it appears from the evidence that Helen M. Buist died on February 26, 1881, the attempted exercise of the power by the surviving executors in their deed of July 9, 1883, to John J. S. Rodgers failed to convey to him a good and indefeasible title, and the jury should, therefore, find a verdict for the defendant.”1 Which instruction the learned judge refused to give, and there being no facts in dispute he instructed the jury to find a verdict for the plaintiff, for the amount of his claim.3 The jury then returned a verdict for the plaintiff for 190,739.76, and judgment being entered thereon, the defendant toot this writ, assigning as error: 1. The refusal of the plaintiff’s point.1 2. The instruction to find for the plaintiff.3
124 Pa. 263Jones v. Gordon (1889)
ERROR TO THE COURT OS" COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 219 July Term 1888, Sup. Ct.; court below, No. 763 June Term 1887, C. P. No. 3. On August 13, 1887, George F. Gordon, trustee and treasurer of the Benevolent Fund, under tbe charge of the consistory of the Third Reformed Dutch church of Philadelphia, brought assumpsit against Daniel S. Jones, and on December 31st filed a statement wherein it was averred, in substance, as follows: 1. That since September 21, 1881, the plaintiff had been a deacon or elder and as sueli a member of the consistory of tbe Third Reformed Dutch church of Philadelphia, and, since November 6, 1882, tbe duly elected treasurer of tbe Benevolent Fund, a charitable foundation which had existed for many years. 2. That for many years prior to November 6, 1882, the defendant had been the treasurer of the consistory and of said fund, but on the election of the plaintiff as his successor, on that date, it became the duty of the defendant to deliver to plaintiff all moneys, books and accounts in his hands as treasurer or trustee of said fund. 3. That by the will of Mrs. Ann Hertzog, deceased, duly admitted to probate, it was provided as follows: “ I give and bequeath unto my executors, the sum of $3,000, in trust to pay over the same unto the treasurer for the time being of the Benevolent Fund of the Third Reformed Church of Philadelphia, to be applied to the uses and purposes of said fund.” 4. That the defendant, whilst he was treasurer of said fund, was authorized by a resolution of the consistory on March 15, 1869, to receive and receipt for the said legacy, that he received the same under said authority and still retained it, althougn the consistory and the plaintiff as said treasurer had frequently demanded payment of the same. 5. That at a meeting of the consistory held on November 21, 1886, it was resolved that the plaintiff be directed to demand and receive from the defendant the legacy with its accumulated interest, and an account of the same, together with the books and papers connected therewith, and that if he should decline to give an account and to pay over to the plaintiff, the latter should take the necessary legal steps to compel him, and that since said resolution payment had again been refused. On January 16, 1888,. an affidavit of defence was filed wherein the defendant averred: 1. That he was a member of the Third Reformed Dutch Church of Philadelphia and treasurer of the board of trustees of the corporation; that the Benevolent Fund of said church consisted of the contributions of the congregations, collected at stated periods, annually, for the board of domestic and foreign missions and the board of education of the Reformed Dutch Church, as required by the general synod; that the treasurer of the consistory had charge of these funds and reported annually to consistory and the consistory to the classis; that by order of general synod all legacies were kept separate and not reported with these collections. 2. That plaintiff did not succeed defendant as treasurer of the Benevolent Fund, but one A. V. Helden did, who held the office until in 1886 ; that said A. V. Helden had requested the defendant to turn over to him the legacy of Mrs. Ilertzog, but the request was declined by the advice of counsel, and the defendant had ever since held the fund as trustee thereof and had regularly paid the income arising therefrom to the boards of domestic and foreign missions and the board of education of said church, as required by the general synod, and that said income having thus been expended according to the terms of the will, the plaintiff, even if held to be entitled to the principal, under no circumstances could be entitled to the interest. 8. That the legacy hereinbefore referred to had been received by the defendant as treasurer of the corporation, and was invested, with the approval of the consistory and of the board of trustees of the church, in a bond and mortgage upon premises described and had so remained invested, and defendant had only said bond and mortgage as representing said legacy. On March 17, 1888, the plaintiff by leave of court filed a supplemental statement of claim as an amendment to the statement of claim heretofore filed by him, which averred in substance : 1. That the said defendant, with the consent of the consistory, invested the said legacy received by him as treasurer of the Benevolent Fund in a certain bond and mortgage for $3,000 which was duly assigned to Daniel S. Jones and Henry J. Fox, trustees of the Benevolent Fund of said church; that said Henry J. Fox had since then renounced his trusteeship and held himself willing to convey to the party entitled, and that defendant unjustly detained and withheld the same from the plaintiff, his successor in office as treasurer and trustee of said fund. On May 7, 1888, the defendant filed an affidavit of defence to the claim made by this amended statement, setting forth, in addition to other facts averred in his former affidavits: That the right of the plaintiff to act as a member of the consistory of said church was then being contested in the church courts, and that plaintiff had not been appointed trustee of the fund by any court and had given no security. On May 26, 1888, the court, Mitchell, J., upon a rule for judgment for want of a sufficient affidavit of defence, without opinion filed, made the following order; And now, May 26, 1888, on motion of J. Rodman Paul, Esq., the court enter judgment in favor of the plaintiff against the defendant, for want of a sufficient affidavit of defence to plaintiff’s supplemental statement of claim, that plaintiff do recover of defendant a certain mortgage for $3,000, dated .... and recorded.....by Albert R. Baker to Henry J. Fox, upon premises situated at the northeast corner of Eleventh and Wallace streets, Philadelphia, together with the bond accompanying the same, and a certain assignment of the same to Henry J. Fox and Daniel S. Jones, trustees, dated..... and recorded.....of the value of the $3,000, together with the damages for the detention of the same or the said value thereof, together with legal interest thereon since January 1, 1869. On July 19, 1888, a rule to amend the order of May 26th was made absolute and said order amended by striking out the words “with legal interest thereon since January 1, 1869,” and inserting in lieu thereof the words “ with damages for the detention,” being the balance found due on an accounting by the defendant before the prothonotary, of his receipts and payments on account of the said mortgage since he has held the same, he producing proper vouchers for all payments made by order of the consistory, said account to be taken on or before the third Monday in September, 1888, otherwise execution to issue for full amount of interest received on said mortgage by the defendant since January 1, 1869. - Thereupon, the defendant took this writ, specifying that the court erred: 1. In entering judgment against the defendant. 2. In assessing as damages for detention, interest upon the bond and mortgage of $3,000, from January 1, 1869. 3. In entering judgment against the defendant for damages for detention of the said bond and mortgage. 4. In assessing damages for detention of the bond and mortgage.
124 Pa. 273Appeal of Lutz (1889)
FROM THE DECREE OF THE COURT OF COMMON PLEAS OF LEHIGH COUNTY. No. 140 January Term 1889, Sup. Ct.; court below, No. 1060, C. P. On December 6, 1886, Alvan E. Creitz made an assignment for the benefit of creditors, and on May 10, 1887, bis assignees filed their account, when Mr.- James L. Sahaadt was appointed auditor to hear and determine exceptions and to report distribution. On February 28, 1888, the auditor filed bis report, from which it appeared that a contention arose as to whether or not a judgment in favor of Alary Handwerk, for use of Henry Leiby, was entitled to share in the distribution. This judgment had been entered originally for $1,880, to No. 407 April Term 1876, on April 17,1876. April 17,1881, five years from that date, fell on Sunday. On April 18, 1881, to No. 12 June Term 1881, Mr. Evan Holben, as attorney for the plaintiff, delivered his praecipe to the prothonotary for a scire facias to revive et quare executionem non. No defence was made to the writ which issued, and on April 17, 1886, when another period of five years had about elapsed, judgment was entered by confession and the balance due liquidated at 1739.62. On May 20, 1886, the judgment was assigned to Henry Leiby, who claimed payment of the same with interest from the date of the assignment to him, out of the fund for distribution, which was almost entirely the proceeds of real estate upon which the judgment was claimed to be a subsisting lien. Payment as claimed was resisted by Amanda C. Lutz and others, administrators of Elias K. Donat, deceased, holding a subsequent judgment. The auditor cited and discussed § 1, act of March 26, 1827, 9 Sm. L. 303; Davidson v. Thornton, 7 Pa. 128; Green’s App., 6 W. & S. 327; Betz’s App., 1 P. & W. 271; Hock’s App., 1 Pittsb. 325; Reynolds’s App., 10 W. N. 424; Dean’s App., 35 Pa. 405 ; Commonwealth v. Rogers, 4 Clark 252; Act of June 20,1883, P. L. 136; and ruled that the lien of the judgment had expired on April 17, 1881, which was the last day upon which under the statute it could have been revived by scire facias or agreement. Then, considering the nature of the writ of scire facias to revive et quare.executionem non, under Chambers v. Carson, 2 Wh. 365; Duff v. Wyncoop, 74 Pa. 305; Green v. Leymer, 3 W. 384; Moody v. McDermott, 1 Miles, 18; Shaeffer v. Child, 7 W. 86 : Berryhill v. Wells, 5 Binn. 56; Collingwood v. Camón, 2 W. & S. 220; and Custer v. Detterer, 3 W. & S. 28, ruled again that the lien of the original judgment ceased to exist and have life on April 17, 1881, and it could not be galvanized into life by issuing the writ the day after, even if no other judgments at that time appeared of record. The claim upon the judgment was therefore disallowed. To this ruling the claimant filed exceptions, and the auditor afterwards made a supplemental report, in which, after an examination of Goswiler’s Est., 3 P. & W. 201; Sims v. Hampton, 1 S. & R. 411; Harker v. Addis, 4 Pa. 515 ; McKinney v. Reader, 6 W. 34; Ege’s App., 2 W. 285; Marks v. Russell, 40 Pa. 372; Cromelien v. Brink, 29 Pa. 524; Arms v. Leaman, 4 Clark 84, concluded: . These cases, and the rule established by them, seem to the auditor to be inapplicable to the question now before him. They have relation only to the doing of some act of a purely civil nature. But the lien of a judgment is one of its attributes, the existence and duration of which is limited by statutory enactment to a period of five years from the date of entry or revival, and no judgment shall continue a lien for a longer period than five years from the day of entry or revival, unless revived within that period. It being impossible to revive the Leiby judgment on Sunday, April 17,1881, the day upon which its lien expired, therefore Mr. Leiby had all of the next day in which to issue a writ: such is his contention. While it is true that the mere issuing of the writ was an act which in consonance with the decisions cited above, he would be entitled to do on the day following Sunday, yet, unfortunately for his contention, the lien of the judgment expired, by the express words of the statute, on Sunday. To hold otherwise would be to give the lien of his judgment a duration of five years and one day and an unjust advantage over subsequent liens. The claimant’s exceptions having been overruled by the auditor, filed with his report and renewed in court, after argument thereof, the court, Albright, P. J., on November 20, 1888, filed an opinion in which, considering, in addition to tlie authorities cited by the auditor, the cases of Swann v. Brown, .8 Burr. 1595; Van Vechten v. Paddock, 12 Johns. 176; Thomas v. Affliclt, 16 Pa. 14; Edmundson v. Wragg, 104 Pa. 500; Barnes v. Eddy, 12- R. I.-; English v. Williamson, 84 Kan. 212; 2 Benj. on Sales, 898, n.; 2 Whart. on Cont., § 897; Fryhoffer v. Busby, 17 S. & R. 121, the claimant’s exceptions were sustained, and to his judgment was awarded the sum of $776.46. Thereupon the objecting creditors took this appeal assigning as error the order sustaining said exceptions and awarding payment to the claimant’s judgment.
124 Pa. 280Mink v. Shaffer (1889)
No. 146 January Term 1889, Sup. Ct.; court below, No. 7 September Term 1888, C. P. On June 21, 1888, Maria D. Shaffer, for the use of H. C. Piatt, brought assumpsit against T. H. Mink, and fiied the following statement of claim verified by affidavit: “The above action of assumpsit is brought on a certain judgment recovered at a term of the District Court of Iowa, holden within and for the county of Benton, in said state of Iowa, at Vinton, on the 26th day of March, A. o.…
124 Pa. 291Geo. K. Hubbard & Co. v. Tenbrook & Bro (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY. No. 408 January Term 1888, Sup. Ct.; court below, No. 632 December Term 1887, C. P. No. 3. On February 4,1888, William H. Tenbrook and Philip Ten-brook, trading as Tenbrook & Brother, brought assumpsit against George K. Hubbard and J. Quincy Adams, trading as George K. Hubbard & Co., and on February 23, 1888, filed the following statement of claim, verified by the affidavit of a member of the plaintiff firm, to wit: “ The plaintiffs declare and aver that they have a just and true claim against the defendants for the sum of one hundred and forty-five dollars and ninety-six cents (1145.96), with interest thereon from November 9, 1887, for goods sold and delivered, and which claim is of the following nature and character, to wit: “ From September 7,1887, to November 9,1887, one Thomas B. Sides, who kept a grocery store at 3504 Haverford avenue, Philadelphia, purchased from the plaintiffs hams upon the times and in the amounts mentioned in the copy of the book account of the plaintiffs, hereto attached, and which is a true copy of the books of original entry of the plaintiffs. As will be seen by the same the goods were charged to the said Sides, he being the only principal known to the plaintiffs in the matter. “ Your deponents have been informed and believe and aver that .upon December 15, 1887, the defendants, George K. Hubbard & Co., caused a warrant to be issued for the arrest of the said Thomas B. Sides upon the charge of embezzlement, having alleged to the magistrate who issued the warrant that the grocery store at 3504 Haverford avenue, and its contents, was their property, and, since its opening about two years and a half prior to that time, had been conducted in their interest by the said Thomas B. Sides, who was simply their employee, and who received compensation from them for his said services, and that the said Sides had removed the contents of said store to some unknown place with intent to defraud them, etc. “The said Sides was duly arrested upon said charge, and after a public hearing before the said magistrate upon the same was held by him to answer the charge as aforesaid at court. “The plaintiffs therefore declare and aver that the said Thomas B. Sides, to whom they sold the said goods, was but the agent of the defendants, and that the said defendants were the real principals in the matter, undisclosed at the time of sale and delivery but now disclosed by their own actions as such principals, and therefore, liable according to law to the said plaintiffs for their claim as aforesaid.” The copy of the book-account attached to the foregoing statement contained the following entries charged to Thos. B. Sides, to wit: Sept. 7, 15 hams, 234, 13$ .... $31 59 “ 14, 15 “ 235, 13 ... 30 55 “ 28, 15 “ 189, 13 .... 24 57 Oct. 19, 12 “ 174, 12$ ... 21 75 “ 26, 13 “ 160, 12i . . . . 20 00 Nov. 9, 12 “ 140,12$ ... 17 50 $145 96 On March 5,1888, the defendants filed an affidavit in which, as a defence to the whole of the plaintiffs’ claim as set forth in the statement filed, it was averred in substance as follows: That Thomas B. Sides, who is named in said statement, did not keep a grocery store at No. 3504 Haverford Road, Philadelphia, as the agent for the said defendants; that the said plaintiffs did not sell and deliver the said hams to said Sides at No. 3504 Haverford Road as the agent for said defendants, nor did the said Sides have any authority or direction to purchase the said hams from the said plaintiffs, nor had the defendants any knowledge that the said Sides had bought the said hams from the plaintiffs; that if the plaintiffs sold the hams mentioned in their said statement to the said Sides, they sold the same to him as principal and upon his own credit and not as the agent of the said defendants; that the statement filed in the ease is not sufficient to entitle the plaintiff to judgment for want of a sufficient affidavit of defence because it does not appear that the said hams were ever delivered by the said plaintiffs; all of which the deponent says the defendants expect to be able to prove upon the trial of the case. On March 7, 1888, a rule for judgment for want of a sufficient affidavit of defence was taken, and on March 16th, the defendants filed a supplemental affidavit in which it was averred, in substance: That the said Thomas Sides, named in the statement filed as the agent of the defendants, was employed by them as a salesman at the defendants’ place of business, No. 3506 Haverford Road, and not at 3504 Haverford Road, as given in said statement; that said Sides was not the agent of defendants to purchase from the plaintiffs or any one else tbe hams alleged to have been sold to him: that Sides was employed as salesman only by the defendants, without any authority whatever to act for or bind the defendants for the purchase of any goods or merchandise upon the defendants’ credit. On March 17, 1888, the court, Reed, J., made absolute the rule for judgment for want of a sufficient affidavit of defence, and thereupon the defendants took this writ, assigning the order entering judgment as error.
124 Pa. 297Lafferty v. Schuyl. River R. (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA co unía:. No. 88 July Term 1888, Sup. Ct.; court below No. 208 March Term 1886, C. P. No. 1. On March 80, 1886, a summons in trespass issued in an action by Henry Lafferty against tlie Schuylkill River East Side Railroad Company, to recover damages caused by the defendant company in constructing its railroad through a truck farm of which the plaintiff was a tenant under a lease from the owner. At tlie trial on February 28, 1888, tlie following were the facts as they appeared in the evidence. In 1884 tlie defendant company made tlie preliminary surveys for a line of railway, and in April, 1885, located it over tlie land of John J. Krider in tbe First ward, Philadelphia. Negotiations then commenced with Mr. Krider Cor a settlement of the land-damages. On July 8,1885, an ordinance of councils of tbe city was enacted giving consent to the company’s occupancy of streets and highways, and in this ordinance the road was referred to as having been located: City Ordinances, 179. On August 31, 1885, by a written agreement Mr. Krider demised the farm to the plaintiff for five years from March 1, 1886, except as to the part unoccupied by himself of which the plaintiff was to have immediate possession. The rental was |800 per annum, which was the full rental value of the land as it then existed. The lease provided as follows: “ It is further agreed that the said John J. Krider shall not be liable to the said Henry Lafferty for any losses or reductions in rent of said premises by reason of the present contemplated railroad passing through the premises.” The plaintiff at once went into possession of the unoccupied land of the farm, including most of that subsequently taken by the defendant, and plowed and planted until interrupted by the winter. The negotiations of the defendant company with the land- ■ owner continued until in December, 1885, when an agreement was reached which was put into writing on January 18, 1886, whereby the company bought the strip of ground sixty feet wide through the farm u for the sum of f6,000, clear of all incumbrances, and free from all tenant’s claims.” The grading was then commenced, and the following February the purchase money was paid in full and deed delivered. The company refused to recognize the plaintiff’s claim for compensation. The plaintiff, having given testimony as to the injuries suffered, rested his case, when the defendant company moved the court for a judgment of compulsory nonsuit, on the ground that as the plaintiff’s occupancy and use of the_ demised premises was after the land had been appropriated by the company, he was not entitled to recover. The court, Biddle, J., granted the motion for a judgment of nonsuit, with leave, etc., saying: “ This is a very nice point to decide. I do not think the authorities indicate very precisely and clearly what the survey and location mean in every case. It may mean one tiling as regards third parties, and another thing as regards the owner of the land. But in this case, in my opinion, inasmuch as the road was, according to the testimony of the plaintiff himself, both surveyed and located, and with the consent of the owner of the soil and the consent of councils obtained, as to the. amount which it was necessary that they should give their consent to, and the location of the road having been recited in the ordinance of councils and referred to in the lease, I think that that was a taking of the land which prevented anybody who came in as late as the 81st of August, 1885, from obtaining any title which would require damages to be paid. A motion to vacate the judgment of nonsuit having been refused by the court in banc, the plaintiff took this writ, assigning as error the entry of the judgment of nonsuit, and the refusal to vacate it.
124 Pa. 303City of Philadelphia v. Richards (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OP PHILADELPHIA COUNTT. No. 163 July Term 1888, Sup. Ct.; court below, bio. 16 March term 1888, M. L. D. On March 21, 1888, a municipal claim for a lien for paving and. 'curbing was filed by the city of Philadelphia, for use of Arthur McGinn, against Edwin S. Richards, of which the following is a copy as to its essential portions: “ The city of Philadelphia to the use of Arthur McGinn files this its claim against Edwin S. Richards, owner, or reputed owner, and registered owner, or whoever may be owner, of all that certain lot or piece of ground, and improvements thereon erected, situate.....for work done and materials furnished within six months last past in paving the cartway on said Seymour street and curbing the said Seymour street, in front of the said lot of ground and premises, per bill and statement as follows : November 1, 1887. To 75 sq. yards Cartway Paving at $2.78 per yard . $204 75 “ 45 feet new Curbstone set at 75c. per foot . 33 75 “ Curb regulation ....... 90 “ Measuring charge ...... 90 “ City Solicitor’s com., 5 per cent . . . . 12 01 $252 31 Amounting to the sum of $252.31, for which sum, with interest, a lien is claimed against the premises above described. The said paving and curbing having been duly authorized by an ordinance of the select and common councils of the city of Philadelphia, duly signed by the mayor, and did authorize the contractor who did the work and furnished the materials for the same to collect and recover to his use all claims arising and accruing for the costs and expenses of said paving and curbing, and which paving and curbing were duly assessed and charged at the just value thereof against the lot of ground and premises above described, agreeably to the several acts of assembly of the commonwealth of Pennsylvania relating to municipal claims for paving, curbing, etc. And that a bill for said paving and curbing, made out according to law, was duly served upon the said owner, and notice given to him that if the same was not paid within thirty days a claim for the same would be filed. Said bill was served and notice given more that thirty days before filing hereof.” On May 21, 1888, on motion of the defendant, a rule was entered on the plaintiff to show cause why the claim should not be stricken off; served. Oil June 7, 1888, before any disposition was made of this rule, on motion of the plaintiff a rule was entered upon the defendant to show cause why the claim should not be amended by adding thereto the words following, to wit: “ That the said Edwin S. Richards was duly notified by the chief commissioner of highways to set the curb in front of the said property, and the said Edwin S. Richards did neglect to set the said curb for more than thirty days after the service of said notice, and thereupon the said plaintiff did furnish and set the curb, as in the bill of particulars fully set forth, in accordance with the ordinances and acts of assembly in such case made and provided.” On June 16, 1888, the court in banc, Ataason, P. J., without opinion or reasons filed, discharged the rule to amend, and made absolut e the rule to strike off the claim. Thereupon the claimant took this writ, assigning as error: 1. The order making absolute the rule to strike off the claim. 2. The order discharging the rule to amend the claim.*
124 Pa. 311Orr & Lindsley v. Bornstein (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTV. No. 1 January Term 1889, Sup. Ct.; court below, No. 150 September Term 1886, C. P. No. 2. On November 20, 1886, William C. Orr and D. B. Lindsley, trading’ as Orr & Lindsley, recovered a judgment against Louis Bornstein for $1,258.12, and issued a writ of fieri facias upon which a levy was made on a stock of goods in a store-room at No. 1008 North Second street, Philadelphia. The goods being claimed by Jennie V. Bornstein, the wife of the execution defendant, an issue was framed under the sheriff’s interpleader act, wherein Mrs. Bornstein was made plaintiff and the execution creditors defendants. At the trial on April 5, 1888, the evidence showed that on March 3, 1885, Mrs. Bornstein filed her petition for the benefit of the act of April 3, 1872, P. L. 35, securing to married women their separate earnings. Her petition and the decree thereon were duly recorded. Thereupon, having determined to go into the business of a shop-keeper, she borrowed from a friend and relative the sum of $1500, for which she gave her individual note. Ellis Silberstein, called for plaintiff, testified: “ I live at 701 Marshall street. My store is 123 North Ninth. I know the plaintiff. I loaned her on March 23, 1885, by checks, $1,450 (two cheeks), and $50 in cash. She came to me and said she wanted to open a store and make a living, for herself and family, and I went with her to look at the place and told her I would lend her $1,500. I asked her how she proposed to pay me back; she said she would give me her note, and pay it out of her earnings from the store; a six months’ note. She was to carry on the business herself, I understood, and to pay it out of the earnings of the store. I asked her before I gave her the money if she had made application to the court. I said to her I knew she was not entitled under the law to her separate earnings unless she was a feme sole trader. She said she had made application. I asked her who the lawyer was who drew up the feme sole papers. She told me who the lawyer was. I saw the lawyer, Mr. Moyer, before I loaned the money, to see if it was all right. He said yes, he had drawn up the papers. Her husband had nothing to do with it. I would not have given him the money. It was not to be paid back by him or out of his money. She §aid all money or profit made out of store she was to have. Knowing she was an industrious woman, I loaned her the money on the strength of these representations.” The stock of goods started with the money thus borrowed was that levied upon under the defendant’s execution. The husband was engaged in the management of the store “assisting as any other clerk or employee would have done.” The defendant requested the court to charge that under all the evidence the verdict should bo for the defendants. The court, Mitchell, J., refused to so charge and instructed the jury as follows: “ It is lawful for a married woman to carry on business, provided it is not a cover for fraud and to prevent her husband’s creditors from collecting tlieir claims. The whole question is one of good faith. If you are satisfied that it was really her business, it cannot be taken to pay her husband’s debts, and in that case you should find for the plaintiff.” The jury having returned a verdict for the plaintiff, judgment was entered thereon, when tire defendants took this wilt, assigning as error the refusal of the defendants’ point and the instructions to the jury.
124 Pa. 320Volkmar Street, Philadelphia (1889)
CERTIORARI TO THE COURT OE QUARTER SESSIONS OE PHILADELPHIA COUNTY. No. 225 July Term 1888, Sup. Ct.; court below, No. 5 April Term 1888, Q. S. On June 8, 1877, a petition was filed setting forth “that there is public occasion to open Volkmar street through to Palmer street, of the same width as the said street is now opened on the east side of Hanover street; ” whereupon a jury of view was appointed whose report in favor of opening the street and assessing damages and benefits was filed on November 30, 1877. Exceptions were made to the report and it was set aside. On September 17, 1880, another petition for the opening of said street was filed, under the act of March 6, 1820, 7 Sm. L. 265, relating to the opening of streets in the District of Kensington, where the street in question was located, which act provides a special method of procedure and contains the limitation: “ Provided always, that no such street, road, lane, court, or alley so laid out, shall be opened and appropriated to public use, until the owner or owners of the ground, through and over which the same may pass, shall have been compensated for any damage he or they may sustain thereby.” Proof of service of notice on all the owners through whose lands the said street, between Hanover and Palmer streets, passed, of the application to open the same having been filed, and no one appearing to object thereto, on October 16, 1880, it was ordered that Volkmar street be opened according to law as plotted upon the official plans, and the chief commissioner of highways was directed to open the same forthwith. On December 1, 1880, a petition was filed reciting the decree of August 16th, and praying for a jury of view to assess damages. This jury reported on February 4,1882, and on exceptions filed their report was set aside. The street remained unopened, and nothing further was done until April 14, 1888, when J. G. Maier presented his petition, reciting the order of October 16, 1880, and setting forth that he was the owner of real estate on the line of said street which would be taken by the opening thereof as the same had been ordered; that he had not released his right to damages which would be sustained thereby, or dedicated his land for a highway thereon, and praying for the appointment' of a jury and the assessment of the damages “which he will sustain by the opening of said street.” Viewers were appointed. On May 16, 1888, upon the motion of the city solicitor, a rule upon the petitioner was granted to show cause wdvy his petition should not be quashed, on the ground that it was not filed within six years after the order of October 16, 1880, directing the opening of the street, was made; and on June 8, 1888, the court, Biddle, J., no opinion being filed, made the rule absolute. Thereupon the petitioner took this writ assigning as error: 1. The order of June 8, 1888, making absolute the rule to show cause why the petition should not be quashed. 2. The order quashing the petition for the reason that it had not been filed within six years from the date of the order of October 16, 1880.
124 Pa. 328City of Reading v. Savage (1889)
ERROR TO THE COURT OE COMMON PLEAS OE BERKS COUNTS. No. 295 January Term 1888, Sup. Ct.; court below, No. 11 ■October Term 1886, C. P. On April 30, 1888, the decree cf the court below, Ermentrout, J., making absolute a rule to strike off a municipal claim for lien filed in favor of the city of Reading v. Robert H. Savage, for the expense of grading Thirteenth street, was affirmed. On October 29, 1888, a re-argument of the cause was ordered and a writ of certiorari then issued whereon the record was returned -to this court. The facts upon which the questions considered arose sufficiently appear in the former report of the case: Reading v. Savage, 120 Pa. 198.
124 Pa. 337Bank v. Fulmor (1889)
FROM the decree of the court of common pleas of MONTGOMERY COUNTY. Nos. 165, 166 July Term 1888, Sup. Ct.; court below, No. 10 December Term 1882, C. P. On December 6, 1882, by virtue of a warrant of attorney, a judgment was entered in favor of the Jenkintown National Bank against T. Lloyd Fulmor for the sum of $9,810. On June 7, 1886, a writ of fieri facias having issued on said judgment, the defendant presented his petition setting forth in substance, to wit: That the said judgment was given the plaintiff bank as collateral security for certain notes of himself and Elizabeth N. Fulmor; that said notes had been reduced to $6,950; that in 1888-4, he had erected a flour mill on his premises and that E P. Allis & Co. contracted to put machinery into said mill to cost upwards of $15,000; that said firm required him to have the premises released from the lien of all mortgages and judgments, one of which was that of the Jenkintown N. Bank; that in consideration of said machinery being placed in said mill, he did obtain the releases of such liens as were prior to those of the bank; that he went to the bank and stated that unless the bank would release said premises from the lien of its judgment, as well as the mortgages mentioned, he could not get the machinery in the mill; that said bank directors then held a meeting, after which they agreed with him to take a new judgment for a like amount as the old one, to be a lien second to that of E. P. Allis & Co. for machinery, and to’satisfy the old judgment; that said defendant did on April 24, 1884, make and deliver to the bank a judgment note for $9,810, which was entered of record April 29, 1886; that he then communicated with E. P. Allis & Co. who put in the machinery ; that the bank did not satisfy the original judgment, but had levied an execution on the mill and threatened to sell the same at sheriff’s sale; that by said action the bank had a lien it did not have before and had impaired the rights of E. P. Allis & Co. who had a mechanics’ lien for the machinery; that the mill was erected partly on two lots of land, one of which lots was acquired subsequent to the entry of the judgment of the bank on which the execution issued; and, alleging that said judgment should be satisfied, prayed the court to set aside the execution, to open the judgment and let him into a defence, and for other and further relief. A rule to show cause having issued upon the foregoing petition, testimony was taken on depositions. The testimony on the part of the defendant, sustained the averments of the petition. That on the part of the respondent was to the effect that on or about February 8,1884, the defendant, having obtained releases of mortgages and judgments prior to the bank judgment, then importuned the officers of the bank to have its judgment released. This the board of directors declined, but finally agreed that if the petitioner could obtain $10,000 by mortgage on his mill property and would raise $5,000 in addition thereto and deposit both sums in the bank to pay for the machinery, the hank would take a new judgment for $9,810, to be second in lien to that of the $10,000 mortgage, and would satisfy the original judgment for the same amount. On March 10,1884, the defendant executed a mortgage to one Joseph Wilson for $10,000 which was placed on record March 17th. On April 29, 1884, the bank entered judgment on the new note which had been given, in the expectation that the defendant would raise the additional $5,000 which he had agreed to deposit, but this the defendant failed to do. Satisfaction was afterwards entered upon the Wilson mortgage, and satisfaction would have been entered upon the provisional judgment entered on April 29th, but it was withheld at the request of the defendant and. of counsel representing E. P. Allis & Co. The petitioner’s testimony in rebuttal was to the effect that after E. P. Allis & Co. had delivered the machinery upon being informed that all liens had been released or postponed, the defendant began negotiations to raise money to pay for the machinery. In endeavoring to effect this, the bank agreed to procure for the defendant a mortgage for $10,000 on the new mill and discount $5,000 of notes to be procured by him, the proceeds of both the mortgage and notes to be paid to E. P. Allis & Co. The Wilson mortgage was executed to raise the $10,000, and the second judgment was held off the record until April, when the negotiations were dropped because the bank refused to comply with the agreement to discount $5,000 of notes presented. Then the bank entered the second judgment. Other than the documentary evidence, the testimony on both sides directly relating to the transaction was chiefly the oral testimony of the petitioner and of certain of the officers of the bank, and proof of the declarations and admissions of the latter. On September 20, 1886, the testimony having been filed and rule argued, the court, Boyer, P. J., filed the following, to wit: “ As the record affecting tins case stands, the action of the court upon this rule may be immaterial in the final result, but the facts in dispute are such as to impose upon the court the duty of granting an issue to determine them. “And now September 20, 1886, the execution and ievy are suspended, and an issue directed to determine whether the judgment in question is satisfied, without prejudice to its lien in the meantime.” An issue was then formed to determine, (1) whether the judgment in question was satisfied,- (2) if not, what if anything was due thereon. At the trial of the issue on March 22, 1888, the testimony submitted was substantially the same as that submitted upon the argument of the rule upon which tbe issue was awarded, when the jury rendered a verdict “ that the said judgment is satisfied and there is nothing due thereon.” A rule for a new trial was subsequently discharged, when the plaintiff bank entered an appeal and purchased also a writ of error, filing in both the specifications that the court erred: 1. In making the order of September 20, 1886. 2. In submitting the case to the jury.
124 Pa. 347Hallman v. Hallman (1889)
No. 161 July Term 1888, Sup. Ct.; court below, No. 100 December Term 1887, C. P. On June 2,1884, a judgment was entered in favor of Reuben T. Hallman against James T. Hallman for $600, subsequently marked to tlie use, inter alia, of Henry Freyer. On December 1,1887, a fieri facias was issued from the judgment and all the defendant’s property, real and personal, was levied npon. The personal property was appraised at |6 and set aside to the debtor under the exemption law.
124 Pa. 358County of Lehigh v. Semmel (1889)
ERROR TO THE COURT OF COMMON PLEAS OF LEHIGH COUNTY. No. 269 January Term 1889, Sup. Ct.; court below, No. 40 November Term 1887, C. P. On October 26, 1887, the defendant appealed from the judgment of a justice of the peace in favor of Reuben Semmel against tlio county of Lehigh, and the cause was put at issue by the prothonotary under the plea of nil debet. At the trial on March 2,1888, the plaintiff showed that he was a constable of North Whitehall township, elected in 1887; that there were twelve hotels where liquors were sold in said township, each of which he had visited in his official capacity in the mouths of June, July, August and September, 1887, and the distance traveled in making each visit was about twenty-five miles. No violations of the license law were found. At the close of the testimony, the court, Albbjght, P. J., charged the jury as follows, to wit: You have been sworn in an action in which Reuben Semmel is plaintiff and the county of Lehigh defendant. Tbe plaintiff is the constable of North Whitehall township. He has a claim against the county, and it is admitted that before he brought this suit he demanded from the county what he jiow demands and that the commissioners refused it. It is necessary that this should be shown or admitted before the county can be sued. The question whether the plaintiff is entitled to recover and how much he should recover, is really altogether a question of law. Mr. Semmel has testified what he did, but whether his testimony is to be believed is a matter for you. It is not contradicted, and no doubt you will take it all for truth. He claims compensation for services performed under the law regulating the sale of liquor, passed in 1887. That statute provides, that each constable shall make return to the Court of Quarter Sessions, which in this county means five times a year, of all places in his district where liquor is sold either with or without license; and it is further provided that it shall be his duty to visit at least once every month all places within his jurisdiction where any liquors are sold or kept, to ascertain if the provisions of this act relating to liquors have been violated or not. Whenever he shall learn of a violation it shall be his duty to make a return to the court. Mr. Semmel testifies that, since this act went into force, he made these monthly visits in June,, July, August and September, in his district of North Whitehall; that to do so required about a day’s service, and that he traveled about twenty-five miles. A constable is paid by fees; that is, he is paid for serving various kinds of papers or for arresting a party a certain sum; and for selling property, at a certain rate. Many other officers in this state are paid by fees, and the law is, that where an officer is paid by fees he can claim no compensation for anything that does not come under the fee bill, because it is considered that he takes the office for whatever the fees are. Therefore an officer who is paid by fees cannot be paid by the day or hour or week for any service he may do that is not in the fee bill. Before this act of 1887 was passed, constables were required to> make returns concerning places where liquor was sold; to return the names of the parties who sold, and as to whether there were violations of law. Constables were also required to make returns to the court as to other matters ; for instance, whether there was any gambling house, horse racing and the like. So far as making a return to the court is concerned, in the opinion of the court he is not entitled to any pay. -That is included in what he was entitled to under the law before the act of 1887 for making return to court. Each constable is allowed $1.50 for coming to court and making his return. The duty imposed by the act of 1887, to make monthly visits, in- ■ volves labor which the constables had not to perform before, and which strictly speaking does not come under the fee bill. Can a constable recover for this service ? The court is of the opinion that he can, for the reason that the constables’ fee bill in force provides that the same fees shall be paid “ for services not herein specially provided for, as for similar services.” In the opinion of the court, this general saving clause implies that where a constable is by law compelled to do something for which pay is not specially provided in the fee bill, he can be paid for it, and the pay is to be ascertained according to the nature of the service, and comparing it with other services which are similar or resemble it. Now, in the opinion of the court, under that clause of the fee bill the plaintiff is entitled to be paid. The fee bill does provide that for travel in the line of his duty he is to be paid six cents a mile, and I think that he is entitled to that for visiting the places in his district that he is required to visit. Then, shall he be allowed anything outside of the mileage ? Counsel for defendant is of opinion that nothing beyond that should be allowed even if anything is allowed for mileage. [The act of 1887 requires the constables to do something, at the places where liquor is sold. It is true, he is not to serve any paper upon any one nor to arrest any one, but he is to make inquiry, and in my opinion he is entitled to some compensation for that. What shall it be ? There are provisions in the constables’ fee bill that for serving summons and notices he shall be allowed twenty cents. Then there is provision, that for making his returns to court he is to be allowed $1.50. The doubt in my mind has been which of these two methods is to be applied here. My first impression would be to pay him for visiting each hotel and making the necessary inquiries, the satne as for serving a notice; but that perhaps would not be the best way, because there may be a dozen places in a country district and which would require a certain time, perhaps a day or more; then in a town district there may be a dozen places which he is required to visit and can visit in a much shorter time. Then there may be a country district where there are but a few places to visit, and another where the same amount of travel and no more would be required and many would have to be visited. In short, gentlemen, it strikes me that the $1.50 ought to be paid instead of the twenty cents for the case of each house visited. I come to this conclusion because that $1.50 is given to each constable for making his return to court at each Court of Quarter Sessions. That usually takes a day.]1 Some constables are near the court house and others far off, but the law in its wisdom has seen fit to pay each of them $1.50. [I think that the plaintiff here is entitled to $1.50 each month for visiting the places he is required to visit and making the necessary inquiries, and then six cents a mile calculated from his home and back again to visit all the places in his travels. If you believe that Mr. Semmel did travel twenty-five miles necessarily in visiting the hotels, and that he visited them these four months each month, as he says, then we instruct you he is entitled to recover for each month $1.50 and six cents a mile. If it is twenty-five miles that would be another $1.50, making $3.00 for each month, and for the four months it would be $12.00. If you believe the plaintiff’s testimony, and there is no reason, I should think, why you should not, you will render a verdict for the plaintiff for $12.00.]3 If not, you will return a verdict for the defendant. The jury returned a verdict in favor of the plaintiff for $12. On motion of defendant, a rule for a new trial was granted. On July 30, 1888, the rule having been argued, the court filed the following opinion: A further examination of the question presented has brought me to the conclusion, that a constable is entitled for visiting, monthly, places where liquor is sold as required by the act of 1887, to six cents per mile,, from his home to all the places required to be visited and returning, taking the nearest traveled route, and twenty cents for each place necessarily visited, being the fee allowed by the fee bill for serving a summons or notice. Under this ruling the plaintiff is entitled to a trifling sum more than was awarded by the verdict. But he seems to be satisfied; he has not asked for a new trial. A new trial will be granted if he applies for it. July 30, 1888, the rule for a new trial, entered on defendant’s motion, is discharged. Judgment having been entered on the verdict, the defendant took this writ, assigning as error: 1, 2. The parts of the charge embraced in [ ] 1 3
124 Pa. 367Perth Amboy Terra Cotta Co. v. Wood (1889)
FBOM THE DEO BEE OF THE COUBT OF COMMON PLEAS OF MONTGOMEBY COUNTY. Nos. 215, 216 January Term 1889, Sup. Ct.; court below, No. 1 October Term 1887, C. P. On December 6, 1886, E. C. Wood filed his petition in the - court below setting forth in substance: That on May 15, 1886, he entered into a copartnership with Alfred H. Green, for the manufacture of building materials and from that time until recently said Green and the petitioner carried on said business at Ardmore, under the name and style of the Ardmore Wood Working Company. That on October 8,1886, said Green without the knowledge of the petitioner executed a bill single in favor of the Perth Amboy Terra Cotta Co., for the sum of fl,617.70, which was as follows: 11,617.70. Philadelphia, Oct. 8,1886. One day after date I promise to pay to the order of The Perth Amboy Terra Cotta Company, sixteen hundred and ■ seventeen 70-100 dollars, without defalcation value received with interest. And further I do hereby authorize and empower any attorney of any court of record of Pennsylvania or elsewhere to appear for and to enter judgment against me for the above sum, with or without declaration, with costs of suit, release of errors, without stay of execution, and with 5 per cent, added for collect fees; and I also waive the right of inquisition on any real estate that may be levied upon to collect this note, and do hereby voluntarily condemn the same, and authorize the prothonotary to' enter upon the fieri facias my said voluntary condemnation and I further agree that said estate may be sold on a fieri facias and I hereby waive and release all relief from any and all appraisement, stay of execution laws of any state, now in force or hereafter to be passed. Ardmore Wood Working Co. [l. s.] Alfred II. Green. [l. s.] That on November 16, 1886, judgment was entered on said bill single against tlie Ardmore Wood Working Co. and Alfred II. Green, and the same day a fieri facias was issued thereon and a levy made upon all the material, unfinished work and other property, of the copartnership at Ardmore, all of which were advertised at sheriff’s sale. That said bill single was unauthorized by the Ardmore Wood Working Company, or by tbe petitioner, and neither the petitioner nor the said copartnership ever had any business transactions with the judgment plaintiff, and neither was in any way indebted to said judgment plaintiff at the time of the date of said bill or at any other time. That immediately after the issuing of said fieri facias and the making of the levy thereon, to wit, November 20, 1886, said Alfred II. Green committed suicide, and the petitioner then first learned of the existence of said bill single and of the judgment thereon: Praying that a rule be granted to show canse why said judgment should not be opened as against said Ardmore Wood Working Company, and. the petitioner and said company be let into a defence, etc. A rule having been granted as prayed for, testimony was taken on depositions and filed, showing the facts sufficiently appearing in the opinion filed on June 6, 1887, Swartz, J.: Edward C. Wood, the petitioner, alleges that Alfred II. Gi'een entered into copartnership with him, under the name and style of the Ardmore Wood W orking Company, that the said Green without the knowledge of Wood, executed a bill single to the Perth Amboy Terra Cotta Co., signing thereto. “Ardmore Wood Working Co.,” and “ Alfred H. Green;”' that judgment was entered upon this hill single and execution-issued ; that the judgment so confessed was for the individual debt of said Green and not for money furnished to the copartnership. Does the testimony offered establish the alleged partnership ? Upon page 364 of the letter book produced, we find a copy of a letter written by Green to one Shannon on the 13th day of May, 1886. Mr. Green writes: “ I did not advertise for a partner as yet, as I was not sure of the mill, but I will advertise to-morrow or next day.” Two da3's afterwards, on May 15th, Alfred H. Green and Edward C. Wood executed a lease for the mill spoken of in the above letter. It will not do to say that Wood signed as a surety for Green. If that was the purpose of the signature we should find it appended to the printed form provided in the lease. The lease indicates that Green and Wood were equal partners in the Ardmore mill, the place where the business of the Ardmore Wood Working Company was conducted. On and after the 15th day of May, we find numerous letters written by Green relating to the business at the Ardmore mill, in which he uses the personal pronoun we in speaking of the undertakings of the concern. Letters relating to mill work are signed, some “Ardmore Wood Working Company, Alfred H. Green, Manager; ” others, “ Alfred H. Green & Co.,” and still others “ Alfred H. Green, Manager.” On the 10th of June, 1886, an agent of Bradstreet’s commercial agency called on Green. He was informed by him that Alfred H. Green and Edward C. Wood were partners in the lumber business at the Ardmore mill. A card was offered in evidence with the words, “Ardmore Wood Working Company, Alfred H. Green, Manager,” printed on its face, and the words, “ Co., Edward C. Wood, 1131 N. 41st,” indorsed on the back in lead-pencil in the handwriting of Green. By the death of Green his creditors are incompetent to testify in this case: Karns v. Tanner, 66 Pa. 297; Hanna v. Wray, 77 Pa. 27; Foster v. Collner, 15 W. N. 557; and this incapacity includes Edward C. Wood. Abbot H. Chase, however, is competent. He was an employee of one of the creditors of the Ardmore Wood Working Company, and testifies that Green spoke of Wood as a member of the firm, and that Wood was about to put $5,000 more in the business. We cannot lose sight of the fact that Wood is the applicant to have the judgment opened. He calls witnesses in support of the alleged partnership. In the testimony before us Green confesses the existence of the partnership, and Wood now asks that his confession be accepted as the truth. But it is claimed, that even if the partnership is admitted the judgment should not be disturbed, because the confession was for money used by the firm in the partnership business. Partnership property may be sold under an execution upon a judgment confessed by a single partner in the firm name, and for a firm debt: Ross v. Howell, 84 Pa. 129. Where, however, such confession is for an individual debt, it is fraudulent against all partners who did not consent thereto : nor is it sufficient to show that the judgment so confessed was for money loaned to tlie individual member of the firm upon his credit, and by him expended in tlie business of tbe firm. In such a case, there is no privity of contract between the claimant and tlie firm, and there could be no recovery against tlie firm. To make tlie claim valid against tbe partnership, tbe partners must assume it: Donnally v. Ryan, 41 Pa. 806; Brooke v. Evans, 5 W. 200. Such assumption may be inferred if the other menbers of tbe firm knew tbe money went into the business and consented to it: Clay v. Cottrell, 18 Pa. 408. It is not sufficient to show that tbe consideration money for tlie judgment went into the firm. Tlie authorities cited by tbe plaintiff on this point are all cases where the partners united in the confession of the judgment, or assumed the debt as a partnership liability: Rose v. Keystone Shoe Co., 18 W. N. 565; Seigel v. Chidsey, 28 Pa. 279; Walker v. Marine Bank, 98 Pa. 574. There is no testimony to show that Wood knew that the money received from tbe terra cotta company by Green, as their agent, was used by tlie firm, or that he assented to such use. It does not clearly appear that the money was so used. It was deposited to the name of Alfred II. Green. The money was mingled with liis own. Some of it no doubt was used at the Ardmore mill. A number of the cheeks produced by plaintiffs are drawn to “ A. II. G.” or bearer. Who received the money drawn on some of these checks does not appear. The failure to register the partnership cannot affect this case. There is no. attempt to show that the plaintiffs gave credit to Green as the owner of the Ardmore milling business. Green embezzled the money. It never was loaned to him. The very name and style of the business indicated a partnership or corporation: Callender and Robinson, 96 Pa. 454, we think has no application. It is also urged that the rule was improvidently granted upon the application and affidavit of Wood, because of his incapacity as a witness. The application was properly made by him. It is doubtful whether the creditors had any standing to petition: Grier v. Hood, 25 Pa. 432. The weight of the evidence before the court is with the applicant, and he is entitled to an issue. And now, June 6, 1887, an issue is awarded to ascertain the following facts: first, whether Alfred H. Green and Edward C. Wood were copartners in the lumber business at the Ardmore Mill on the 8th day of October, 1886, at the time the judgment was confessed; and, secondly, if at that time such copartnership did exist, what, if anything, was due by said firm upon the judgment confessed to the Perth Amboy Terra Cotta Co.; in which issue the said Edward C. Wood shall be made plaintiff and the said Perth Amboy Terra Cotta Company defendant; all proceedings on the judgment to stay in the meantime. To the foregoing order the judgment plaintiff excepted, that the court erred: 1. In staying the writ of execution and in granting an issue. 2. In refusing to so frame the issue granted as to determine specifically whether or not the money, the consideration of this judgment, went into and was used in the business of the Ardmore Wood Working Co. By the court: Exceptions overruled and bill sealed. The issue formed as above stated was called for trial on October 11, 1888, when the testimony admitted was in substance the same as that submitted on the hearing of the rule for an issue. The court, Weand, J., charged the jury as follows: There are several very nice questions of law arising in this case which are entirely for the court. In the opinion of the court there is no testimony here upon which the jury is to pass, as my directions to you are that on the undisputed testimony in this case it is your duty to render a verdict that on the 8th day of October, 1886, a partnership existed between Alfred H. Green and Edward C. Wood in the lumber business at the Ardmore Mill. On the. second branch of the caso I instruct you that it is your duty to find that as such partnership did exist, there was nothing due by said firm upon the judgment confessed to the Perth Amboy Terra Cotta Works. The jury returned a verdict in accordance with the foregoing instructions. A rule for a new trial having been discharged, on December 7, 1888, judgment was entered on the verdict, when tlie defendant in the issue, the plaintiff in the judgment, took an appeal, assigning as error, in substance: 1. The order of June 6, 1887, awarding the issue, and in overruling the exceptions thereto. 2. The submission of the cause to the jury, and the judgment entered December 7, 1888, upon the verdict of the jury. The defendant iii the issue, plaintiff in tbe judgment, also took a writ of error, specifying that the court erred: 1. In granting the issue and staying the execution. 2. In refusing to so frame the issue as to enable the judgment plaintiff to show that the money which was the consideration of the bill single went into the business of the Ardmore Wood Working Company. Twenty-three additional assignments of error relating to the admission or rejection of testimony, were not in accordance with Rule XXIV. On the argument in this court, the parties agreed by writing filed that both causes should be “ argued, and considered by the said court, with the same force as if the court below had made the rule absolute when the issue was granted, and after verdict had stricken off the judgment.”
124 Pa. 375Supplee v. Timothy (1889)
No. 189 January Term, 1888, Sup. Ct.; court below, No. 86 June Term 1886, C. P. ■ On April 2, 1886, J. Howard Supplee, attorney in fact of J. F. Tobias, by duly executed letters, began proceedings before a justice of the peace, under tire landlord and tenant act of December 14, 1863, P. L. (1864) 1125, to dispossess John Timothy of the demised premises, resulting in a judgment on April 12th, in favor of the plaintiff for the possession of the premises and costs.
124 Pa. 387Appeal of Mendinhall (1889)
, FROM THE DECREE OF THE ORPHANS COURT OF CHESTER COUNTY, No. 254 Januaxy Term 1888 Sup. Ct. On June 15, 1886, upon the petition of a party in interest setting forth that the account of Lydia S. Mendinhall and Anna B. Fogg, administrators e. t. a. of John Marshall, deceased, showing a balance in their hands of $94,770.05, had been confirmed, Mr. William T. Barber was appointed auditor to distribute the balance so shown. The facts relating to the controversy, as found by tbe auditor from the evidence before him were as follows, to wit: Jolin Marshall, of Kennett Square, died on May 28, 1885, leaving a will dated July 16,1877, which with the codicil hereafter copied, was duly admitted to probate. The will itself, after making a comfortable provision for the testator’s widow gave to each of his four daughters substantially an equal amount of his estate. No bequest was made to a son, who previously had been advanced more than the amount of the legacy to each daughter. The provision made for his daughter Lydia, was as follows: “I give and bequeath to my daughter, Lydia S. Mendinhall, the sum of twenty thousand dollars for her sole and separate use.” A share of the residue of the estate was also bequeathed to Mrs. Mendinhall. In 1880-81, the testator was the owner of the Sheet-iron Rolling Mills, at Newport, Delaware, then lying idle. To put the mill into successful operation, and also with the purpose of establishing a business for Edward Mendinhall, the husband of his daughter Lydia, an offer was made to some business men and accepted, to organize a corporation with Edward Mendinhall as president and manager, and to sell the rolling mill property to the company for $40,000, $25,000 to be secured by bond and mortgage, and the balance to be paid in stock of the company, 150 shares at $100 per share. On February 22, 1881, a written agreement, called exhibit A in this proceeding, was entered into between John Marshall and Edward Mendinhall, which recited the contemplated organization of the qorporation, the sale and conveyance of the rolling mill to it on the terms stated, and then proceeded: “Now this agreement witnesseth that said John Marshall for the consideration hereinafter mentioned, hereby agrees to assign, transfer and set over the whole of the said capital stock of fifteen thousand dollars ($15,000) when the same shall be issued to him as aforesaid, unto said Edward Mendinhall, to hold the same to his heirs, executors, administrators and assigns absolutely. In .consideration whereof, the said Edward Mendinhall agrees to and with said John Marshall, upon the assignment of said stock to him, the said Edward Mendinhall as aforesaid, to execute and deliver to said John Marshall his bond for the sum of five thousand dollars ($5,000), to secure the payment of interest on that sum at the rate of six per cent, payable semi-annually to said John Marshall for and during the time of his natural life, and further agrees to pay to said John Marshall the dividends that may be declared on twenty-five hundred dollars ($2,500) of the capital stock of said company when and as declared, for the term of five years from date of transfer as aforesaid, it being hereby agreed that if either the said John Marshall, or Edward Mendinhall shall die within the said five years, that then and in such case, said dividends shall not thereafter be paid to said John Marshall, but shall belong thereafter to said Edward Mendinhall, his executoi's, administrators or assigns.” Indorsed on the foregoing agreement, when put in evidence, was the following receipt: “ Received of Edward Mendinhall, his bond dated April 1, 3881, for $5,000, according to the written agreement. • [Signed] John Marshall.” On March 2,1881, the legislature of the state of Delaware passed an act incorporating the Marshall Iron Company, which organized under its charter on March 17th, and soon after started into successful operation. The rolling mill property was conveyed to the corporation on March 24,1881, and on the same day the purchase money mortgage for $25,000 was executed and delivered. On April 1, a bond was executed by Edward Mendinhall to John Marshall in the penal sum of $10,000, conditioned for the payment of $5,000, “ on or before the expiration of one year from the date hereof, with lawful interest for the same from the date hereof, payable semi-annually.” On this bond, called exhibit C in this proceeding, was indorsed, over the signature of John Marshal], receipts for semi-annual payments of interest, the last one being dated April 4,1885. It was shown by parol evidence that this bond exhibit C, had been delivered and accepted by the parties in lieu of the one provided for in the agreement exhibit A. On April 14, 1881, a certificate for 150 shares of the stock of the Marshall Iron Company was issued to John Marshall, and on the same day transferred upon the books by him to Edward Mendinhall, to whom a new certificate was issued and the older one canceled. The codicil hereinbefore referred to as admitted to probate with the will of John Marshall was dated June 14, 1881, and was as follows: “ Whereas, since the execution of the foregoing will, I gave to my son-in-law, Edward Mendinhall, husband of my daughter, Lydia S. Mendinhall, one hundred and fifty shares of stock in the Marshall Iron Company, Newport, Del., the par value of which is one hundred dollars per share, making fifteen thousand dollars; and have also loaned to him the sum of five thousand dollars, for which he has given me his bond. Now, in consequence thereof, I do annul and revoke the legacy of twenty thousand dollars given by me in my said will to my daughter, the said Lydia S. Mendinhall, and in lieu and stead thereof do give and bequeath to her, my said daughter, Lydia S. Mendinhall, her executors and administrators, absolutely, the said bond for five thousand dollars, given to me by her said husband as aforesaid, with all interest that may be due thereon at the time of my death. And I do hereby ratify and confirm my said will in all other respects.” The business of the Marshall Iron Company turned out to be prosperous. The stock sold at par and dividends had been declared thereon from time to time. Of the mortgage, $13,000 had been paid, and the company had a surplus of about $13,000 at the date of the hearing. Lydia S. Mendinhall claimed before the auditor, that inasmuch as the testator had stated upon the face of the codicil, his reasons for the revocation of the legacy to her of twenty thousand dollars and had expressly grounded his revocation upon the assumption of certain facts therein set forth, the said revocation was not an absolute but a conditional one, dependent upon the truth or falsity of the facts so assumed; that the assumptions of fact which are stated in the codicil as forming the basis of the revocation were untrue, to wit: He had not given to Edward Mendinhall one hundred and fifty shares of stock in the Marshall Iron Company; neither had he loaned to Edward Mendinhall the sum of five thousand dollars, for which Edward Mendinhall had given him his bond: that she was prepared to prove the falsity of the facts stated in the codicil, and was entitled in law to the opportunity of proving them by evidence dehors the will; that the revocation in said codicil being founded upon a mistake of fact was inoperative, and that the legacy given to her, in the body of the will, stands, and must be awarded to her in the distribution. On the other hand, the remaining legatees named in the testator’s will contended that the revocation by the codicil was absolute, and operative, and that there was no question of fact affecting this legacy which could be inquired into by the auditor in this proceeding. The auditor, after an elaborate study of the following authorities : 1 Jarman on Wills, 5th Amer. ed. by It. & T., 357 ; 1 Powell on Devises, 3d ed. by Jarman, 523; Swinburne on Wills, 7th ed., 894; 2 Roberts on Wills, 3d ed., 40; 1 Williams on Executors, 7th ed., 208; Campbell v. French, 3 Ves. Jr. 321; Doe d. Evans v. Evans, 10 Ad. & E. (37 E. C. L.) 228; Dun-ham v. Averill, 45 Conn. 61 (29 Amer. It. 642); Goods of Richard Monsby, 1 Hagg. 378; Thomas v. Howell, L. R. 18 Eq. 198; Tomlin v. Underhay, L. R. 22 Ch. D. 495; Mordicai v. Boylan, 6 Jones Eq. 90; Attorney-General v. Ward, 3 Ves. Jr. 327; Parker v. Nickson, 1 DeGex J. & S. 177; Attorney-General v. Lloyd, 3 Atk. 551; s. c. 1 Ves. Sr., 32; Hayes v. Hayes, 21 N. J. 265; 1 Redfield on Wills, 359, arrived at the following general conclusions, to wit: “ 1. That where the reasons for the revocation are set out upon the face of the codicil, and the codicil can be read as conditional upon the truth of the reasons assigned, such revocation is inoperative if the reasons assigned are untrue. “ 2. That where the truth or falsity of the assumed facts upon which the revocation is expressed to be based, appear not to have been within the personal knowledge of the testator, the revocation is conditional upon the truth of those facts, and becomes inoperative upon the simple showing of their falsity. “ 3. That where the truth or falsity of the assumed facts must have been, at or prior to the execution of the codicil, within the knowledge of the testator, the revocation will not be read as conditional upon the truth of the facts assumed, unless the claimant shall satisfy the mind of the chancellor or court, that the testator was laboring under some mistake in his conception of the facts at the time the codicil was executed. “4. That in either of the preceding eases, the court will permit the fullest inquiry dehors the will, to be entered into by the claimant in the determination of his rights under the will and codicil, in so far as respects the mistake of the testator as to the facts assumed.” The auditor then proceeded: “ Reading the codicil to the will of John Marshall, with a view to the application of these principles, the auditor is of opinion that this is one of the cases where the truth or falsity of the assumed facts therein contained must have been at some time prior to the execution of the codicil, personally known to the testator, for the reason that he was a party thereto; and that therefore it is incumbent upon the claimant, Lydia S. Mendinhall, to satisfy the court that the testator at the time of the execution of the codicil, was laboring under some misapprehension in his conception of the facts as they then existed. The auditor is further of opinion, and so holds, that she is entitled to show such misapprehension by any competent evidence, documentary or parol, dehors the will, and that if she is successful in this effort, the revocation will be read as conditional and will be pronounced inoperative; but if, on the other hand, she fails to satisfy the court of the mistake, the revocation will take effect, and she will not he entitled to the whole or any part of the legacy of if20,000 bequeathed to her in the body of the testator’s will, but only to her share of his residuary estate.” The auditor then proceeded to an examination of the testimony, parol and documentary, and after a discussion of the same found the facts substantially as stated in the introduction of this report, and continued: From the foregoing documentary and parol proof, the auditor is asked to find that the reasons given bjr the testator for the revocation of the contestant’s legacy, to wit, the “ gift ” of the stock, and the “ loan ” of the money are false; that the testator, in so stating these reasons, was laboring under a mistake; and that the revocation is conditional and inoperative. Whether or not the evidence will safely bear such a construction, is the matter presented for inquiry and determination. Let us, in the first place, consider the question raised by the transfer of the stock. Reading the agreement exhibit A between the lines, in connection with the fact which is in evidence, that the testator was exceedingly desirous of disposing of the mill property and had repeatedly offered to sell it for thirty-five thousand dollars, we cannot escape the conclusion that as between the testator and Edward Mendinhall, the consideration which tbe former was to rceeive for the mill, consisted solely of the mortgage for twenty-five thousand dollars, the interest on the bond, of five thousand dollars during life, and the dividends on twenty-five shares of stock for a period of five years; that it was the intention of the parties to the agreement, from the outset, that Edward Mendinhall should have the stock, and that the issuance of the certificate to the testator was but a device whereby that intention could moré readily be effectuated. The transaction therefore, in which Edward Mendinhall acquired ownership of one hundred and fifty shares of the capital stock of the Marshall Iron Company was not in the legal acceptation of the term a “ gift.” A gift is defined to be “ the act by which the owner of a thing voluntarily transfers the title and possession of the same, from himself to another person who accepts it without any consit? eration.” The testator, however, never became under the agreement the actual owner of the stock; he was merely, so to speak, the conduit through which the stock was to be conveyed to Edward Mendinhall. Edward Mendinhall also paid a consideration for the transfer of the stock as specified in the agreement, a consideration which was in part payment for conveyance by John Marshall of the mill property to the Marshall Iron Company. The two essential requisites of a gift are therefore lacking, to wit, first, that the party transferring the title shall be owner, and secondly that the transfer shall be without consideration. Moreover, that Edward Mendinhall fulfilled his part of the contract, at least so far as respects the payment of dividends on twenty-five shares of stock of the Marshall Iron Company, during the lifetime of the testator, is shown by the receipts of John Marshall which were in evidence, and is conceded by every one. The statement in the codicil, “ Whereas, I gave to Edward Mendinhall — one hundred and fifty shares of stock” etc., is therefore untrue if we are required to construe the word “ gave ” in its legal and technical signification. In the opinion of the auditor, however, we must construe the word, “gave ” with reference to the intention of the testator and the thought which he had in his mind, appearing by the will and by extrinsic evidence. In Wright’s App., 89 Pa. 67, the words “ loaned ” and “ advanced,” in the testator’s will, were held to be used interchangeably. Mr. Justice Woodwaud in delivering the opinion said: “ They are to be construed in view of the facts that have been either admitted or ascertained. It has often happened that the stringent application of even a strictly technical word has worked grievously unjust results. All mere technical rules of construction must give way to the plainly expressed intention of a testator: Shabswood, J., in Reek’s App., 78 Pa. 432; and, when in aid of a written instrument, its intention can be gathered from undoubted proofs, the equity of parties claiming under it are not to be overthrown by a rigid adherence, to one alternative meaning of an equivocal technical word.” From a study of John Marshall’s will, it is very clear that the controlling idea and intention with him was to make an equal provision for each of his children. To his daughters Mary H. Brosius, Lydia S. Mendinhall, and Anna B. Fogg, he bequeathed to each twenty thousand dollars. To his daughter Elizabeth M. Hannum, he gave the income of eighteen thousand dollars for life, and the use for life of a house in Kennett Square worth about four thousand dollars, and at her death, to her children, thus making her share about equal to the shares of his other daughters. Then he states that “ in justice to his daughters ” he does not give a similar legacy to his son Calvin P. Marshall because he had paid debts of Calvin recently, to the amount of about twenty-two thousand dollars. He then divides the residue of his estate into five equal parts, and gives to each of his children one of these parts. After-. wards he entered into a written agreement with Edward Mendinhall, husband of his daughter, Lydia S. Mendinhall, whereby, through the sale of the rolling mill, his said son-in-law became the owner of stock in the Marshall Iron Company, worth, in the opinion of the testator, as well as in point of fact, the sum of fifteen thousand dollars, the ownership of which the testator considered to be a benefit to his daughter and her family equal to its par value. The legacies to his other children could not take effect until his death. At the time of the execution of the codicil, the stock had been transferred to Edward Mendinhall, the mill was in active operation and the prospect was that the business would be profitable. In justice to his other children, the payment of whose shares in his estate was deferred until the testator’s death, he must have regarded the consideration paid for the stock, as mentioned in the agreement, in the light of interest upon the amount of principal which it represented. The transfer of the stock was, therefore, from the testator’s standpoint, substantially a “gift.” That it was so regarded by him can hardly admit of a question. He was a party to the transaction, and was necessarily familiar with its details. He was a man of intelligence and business capacity, and at the time of his death, was president of the National Bank of Keimett Square, a flourishing institution located in the borough in which he lived. It is not to be presumed that within two months after the transfer of the stock, he became by reason of advanced age or forgetfulness, mistaken as to the facts, and believed that he had actually made a present to his son-in-law, of fifteen thousand dollars in the stock of the Marshall Iron Company. No mistake is shown. On the contrary the evidence is very convincing that there was no mistake..... In the light of all the evidence as presented before him, the auditor holds that as a matter of construction, the revocation in the codicil of June 14, 1881, is not conditional, but operative, and that the contestant, Lydia S. Mendinhall, is only entitled in the distribution of the fund now in the hands of the administrators to her share of the residue. To the foregoing report, Mrs. Mendinhall filed various exceptions alleging in substance that the auditor erred in his conclusion that the legacy bequeathed to the exceptant by the testatoi’s will was revoked by the codicil dated June 14, 1881, and that the exceptant was entitled in the distribution to a share in the residue only. Said exceptions having been argued, the court, Futhey, P. J., dismissed them and confirmed the auditor’s report. Thereupon the exceptant took this appeal, and assigned, specifically, the dismissal of the exceptions and the confirmation of the report as error.
124 Pa. 399Groyer v. Boon (1889)
ERROR TO THE COURT OF COMMON PLEAS OF DELAWARE COUNTY. No. 274 January Term 1889, Sup. Ct.; court below, No. 82 June Term 1888, C. P. On May 8, 1888, a summons in ejectment was issued at the suit of George Grover and Mary L., bis wife, formerly Mary L. Kitts, in right of said Mary L., Harry E. Kimble and Adelaide L., his wife, formerly Adelaide L. Kitts, in right of said Adelaide L., against Jacob Boon, to recover an undivided one third interest in a messuage and body of land in Darby township. Issue. At the trial on October 3, 1888, the plaintiff’s case was as follows: On November 27, 1855, Maria S. Kitts died intestate and seized of the real estate in dispute, leaving a husband, John J. Kitt’s, who died on March 9, 1888, and three children, George W. Kitts, William L. Kitts and Jacob L. Kitts, and a grandson, John Gardiner, the son of a deceased daughter, Catherine Gar-diner. William L. Kitts died on January 8,1865, seized of his interest in the land, leaving a widow, Anna F. (who was afterward the wife of Edward Baker), and three children, to wit: Mary L. now the wife of George Grover, and who was born March 8, 1860. John J., who was born November 18, 1861, and died intestate, unmarried and without issue, on August 28, 1882. Adelaide L. now the wife of Harry F. Kimble, and who was born November 22, 1863. In 1869, John Gardiner, son of Catherine, died intestate, unmarried and without issue, but leaving to survive him his father Charles Gardiner, who died in 1884 or 1885. Anna F. Baker, the widow of William L. Kitts, died on January 1, 1882. The plaintiffs, having shown the defendant’s possession, rested. To maintain the issue on his part, the defendant’s case Avas as follows: On August 13, 1864, a judgment for $100 was entered against William L. Kitts in favor of William D. H. Serrell. On January 4, 1881, letters of administration upon the estate of William L. Kitts, then deceased, Avere granted to Alfred J. Wilkinson, and the same day the death of the defendant Avas suggested upon the record of the said judgment, his administrator substituted, and a writ of scire facias to revive issued to No. 27 March Term 1881. Service of the writ was had on the administrator, and on February 5, 1881, judgment was entered for want of an appearance and liquidated at the sum of $199. The defendant then offered to show by the records that on February 7, 1881, upon the petition of William I). H. Serrell, Isaac Johnson was appointed by the Court of Common Pleas the guardian ad litem of Maiy L. Kitts, intermarried with George Grover, John J. Kitts and Adelaide L. Kitts, minor children of William L. Kitts; that to No. 65 March Term 1881, a scire facias to charge real estate was issued on February 8, 1881, wherein William D. H. Serrell was plaintiff, and Alfred J. Wilkinson, administrator of William L. Kitts, deceased, and Edward S. Baker and Anna F., his wife, George Grover and Mary L., his wife, John J. Kitts and Adelaide Kitts, — the said Anna F. Baker, being the widow, and the said Mary L. Grover, John J. Kitts and Adelaide JL. Kitts being the children and heirs of William L. Kitts, deceased, — were defendants; with the judgment thereon entered on May 10, 1881, to No. 65 March Term 1881, against Alfred J. Wilkinson, administrator of William L. Kitts, deceased, Edward Baker and Anna F., his wife, and Isaac Johnson, guardian ad litem of Alary D. Grover, John J. Kitts and Adelaide H. Kitts, minor children of William L. Kitts, deceased, liquidated at $202. Objected to. By the court: Objection overruled, offer admitted.1 The defendant then offered the writ of fieri facias, at No. 38 June Term 1881, wherein the said William II. Serrell was plaintiff, and Alfred J. Wilkinson, administrator of William L. Kitts, deceased, Edward Baker and Anna F., his wife, and Isaac Johnson, guardian ad litem of Mary L. Grover, John J. Kitts and Adelaide Kitts, minor children of William L. Kitts, were defendants, with the sheriff’s return to said writ, and also the writ of venditioni exponas to No. 9 September Term 1881, following the foregoing, and the sheriff’s return and deed showing a sale and conveyance of the lands described in the writ to the defendant. Objected to. By the court: Objection overruled, offer admitted.3 No points were submitted in writing, but, upon the facts shown by the evidence, the plaintiffs claimed that they were entitled to one twelfth of the land in dispute, by descent from Catharine Gardiner; and, that if the title of William L. Kitts were not divested by the sheriff’s sale and deed, they were entitled to one fourth interest additional, making together a third interest. The court, Clayton, P. J., instructed the jury to find for the plaintiffs, for one twelfth of the land described in the writ, and for the defendant for the remainder. The jury returned a verdict in accordance with said instructions. A rule for a new trial having subsequently been discharged, judgment was entered upon the verdict, when the plaintiffs took this writ, assigning as error: 1, 2. The admission of defendant’s offers.1 8
124 Pa. 406Appeal of Neely (1889)
FROM THE DECREE OE THE ORPHANS’ COURT OE CHESTER COUNTY. No. 415 January Term 1888, Sup. Ct., court below, No..... Term 1887, O. C. On June 17,1887, Elizabeth M. Neely presented her petition to the Orphans’ Court, sotting forth: That she was the widow of Robert Neely, late of the borough of West Chester, deceased, who died May 1,1884, having first made his last will and testament, dated October 17,1884; that by his said will the testator directed his executors to set apart sufficient of his personal estate to produce such an income as would pay to the petitioner the annuity of six hundred dollars, provided for and agreed to be paid her by an ante-nuptial contract between them, dated May 16, 1874, and by a codicil to said will the testator had further devised to her the homestead occupied by him and all the furniture therein during so long a term as she should occupy the same; that said will and codicil were duly admitted to probate and letters thereon issued to J. Joseph Graham, Isaac Graham and Alfred P. Reid, the executors therein named, who in due time had filed an inventory and appraisement showing the decedent to have been possessed o£ personal estate to the value of §82,166.85, and to have been seised of real estate to the value of §47,547.22. That she was married to the testator on May 21, A. D. 1874; that at that time she was residing with her brother, Samuel M. McClure, and that her father had died some two years before; that a few days before their marriage, and more than two months after their betrethal, the testator brought to her a deed designated in the will as a marriage contract, and requested her to sign it; that the day for the marriage ceremony had then been fixed, the minister engaged and the wedding invitations issued; that the subject had never been alluded to between them before; that lie at no time gave her any information as to tbe value or character of his estate, nor had she any knowledge on the subject; that he told her it was absolutely necessary that she should sign the deed, and that there could be no marriage if she did not; that the reason he gave for insisting upon the contract was, that he had got his affairs fixed up, and that the marriage would upset them all unless she signed the paper; that she was greatly disconcerted and distressed by the request, and was unable to read the deed understandingly and to realize its full import and effect; that her brother, Samuel M. McClure, was unable to advise her by reason of his inexperience; that she did not know how to act in the matter, and signed the deed only because of the urgent and imperative character of the testator’s request, and from her confidence in him and in the integrity of his purposes. That on December 6, A. D. 1884, she gave notice to the executors that as such widow she desired and claimed to have retained, set apart and appraised for her use, personal property to the value of three hundred dollars, but that no attention had been paid to this notice; that more than one year had elapsed since the granting of letters testamentary to the executors, yet they had not exhibited any account and settlement of said estate. She therefore prayed the court: 1. To awrard a citation against the said J. Joseph Graham, Isaac Graham and Alfred P. Reid, executors, commanding them to exhibit such account and settlement or show cause to the contrary. 2. To award and decree that said marriage contract was without validity or binding force upon the petitioner, in the distribution of the said decedent’s estate. 3. To order and direct the said executors to appraise and set apart for the use of the petitioner personal estate belonging to the estate of the said Robert Neely, deceased, to the value of three hundred dollars under her said election. 4: To award and decree to the petitioner as widow of the said Robert Neely, deceased, and against the provisions of his said will, one third of his net personal estate absolutely and one third of his real estate for life. 5. Such further and equitable relief, etc. A citation was issued and the executors filed an answer thereto, admitting that the statements in the petition as to the death, will and marriage of the decedent, the granting of letters testamentary, the inventories of his estate, and the demand for the widow’s appraisement, were true, but denying that the petitioner was entitled to the relief prayed for, by reason of a marriage contract entered into between the petitioner and the decedent prior to the marriage, and duly executed on May 16, 1874. They further denied all the allegations of the petitioner as to the manner and circumstances under which said contract or deed was executed, and averred on the contrary that the petitioner was well acquainted with the character and value of the estate of the said Robert Neely at the time of the execution of the deed; that at that time she was possessed of a large personal estate which she desired, in case of her death before him, should go to her own relatives; that the deed was executed in the presence of two of her brothers and an uncle, one of said brothers being a party to the contract and the other brother and uncle being witnesses thereto; that the petitioner advised with and consulted said parties as to the execution of said deed, and the same was executed with their full knowledge and approbation; that the said Robert Neely at the time the deed was executed had two children, the issue of former marriages, and the petitioner was a maiden lady, and the provisions for her in the deed were under the circumstances reasonable and proper; that the deed was fully and freely agreed to by the petitioner; that the consideration therefor was good and valuable and the deed a valid and binding contract and a bar to the claim of the petitioner in this proceeding. Subsequently the petitioner joined issue upon the matters alleged in the answer, and the proceedings were then referred by the court to Mr. William B. Waddell, as auditor, who proceeded so far in the case as to hear all the testimony offered by both the petitioner and the respondents, when it was agreed by all parties in interest, that the testimony thus taken should be submitted to the court, together with the petition and answer, and the court should examine, consider, and pass upon the questions involved. On July 11, 1887, the testimony taken before the auditor was filed, and the cause was then argued before Futjhey,P. J., and Waddell, J. On January 11,1888, the decision of the court, Waddell, J., was filed and was in part as follows: At the time of the marriage in question, Robert Neely was about sixty years of age and Elizabeth M. McClure about fifty. They were cousins, but there appears to have been but little intercourse between them prior to the visiting which resulted in their betrothal. .This extended over a period of six months. He was a farmer and lived upon his farm, a few miles distant from' Miss McClure’s residence. She resided with her brother. Her father died some two years before the engagement. It will be seen that all the material allegations of the petition, as to the circumstances attending the execution of the ante-nuptial contract, are denied by the respondents. Some proof of these circumstances was therefore necessary. The petitioner accordingly called her brother, Samuel M. McClure, as a witness, for the purpose of showing when and where the contract was executed, and what then took place. He was objected to as incompetent, because he was a party to the contract, and one of the other parties, to wit, Robert Neely, was deceased. The testimony of the witness was taken under this objection, with the understanding that its validity should be passed upon when the case came to be considered. We are, therefore, now called upon to determine whether Samuel M. McClure is a competent witness. The deed in question was executed on May 16,1874, between Robert Neely of the first part, Elizabeth M. McClure of the second part, and Samuel M. McClure of the third part. By its terms, Mr. Neely covenants with Samuel M. McClure, as trustee for Elizabeth M. McClure, that she shall have the absolute control of her property during his life, and at her death neither he nor his representatives will claim any share of it; and further, that in case the marriage shall be solemnized, and she shall survive her intended husband, an annuity of six hundred dollars shall be paid her during her life. On the other hand, Elizabeth M. McClure covenants with Samuel M. McClure, as her trustee, that she will not make any claim of any kind, on Mr. Neely’s estate, save for the annuity, and then and there renounces all such other claims. Thereupon Samuel M. McClure accepts these trusts and covenants, and then covenants with each separately that upon the death of either, he will use and improve the covenants made to him in the best maimer that may be in his power, so as to exonerate the estate of the one who has died from all claims of the survivor, save the annuity. Under the terms of the contract Samuel M. McClure has duties to perform, and assumes important liabilities. He is an active party to the instrument. Thus the original parties to the contract were Robert Neely, Elizabeth M. McClure and Samuel M. McClure. One of these parties is now dead, and another one of them has instituted these proceedings to avoid the contract. It is resisted by the executors of the deceased party, who have become parties to the proceedings to protect the legatees under the will of said deceased, and the direct question involved in the controversy is, shall this ante-nuptial contract be abrogated. It is made the duty of the trustee to uphold the contract against either party undertaking to defeat it. [The court, considering Eross’ App., 105 Pa. 265; Earns v. Tanner, 66 Pa. 305; Alcorn v. Cook, 101 Pa. 214 ; Adams v. Bleakley, 117 Pa. 283; Hanna v. Wray, 77 Pa. 30; Hunt’s App., 3 00 Pa. 590; Arthurs v. King, 84 Pa. 525; MoEerren v. Iron Co., 76 Pa. 188 ; Craig v. Brendel, 69 Pa. 153; § 5, act of May 23, 1887, P. L. 158, proceeded:] Samuel M. McClure was a party to the original transaction, and still remains so. The interest he had at that time still continues. In whatever aspect, therefore, wo view him, whether as a party to the original transaction or as a person adverse in interest, in our opinion we must regard him as an incompetent witness and must exclude his testimony. If we are justified in thus rejecting the testimony of Samuel M. McClure, the only evidence left for our consideration is the deed itself: the estimated value of the estates of Robert Neely and Elizabeth M. McClure at the time of the execution of the deed, the will of Robert Neely, deceased, and the mental condition of Miss McClure, now Mrs. Neely, for several days preceding her marriage and some of the circumstances attending that event. The marriage contract was executed on May 16,1874, by Robert Neely, Elizabeth M. McClure and Samuel M. McClure, at the residence of the latter, in the presence of James McClure and Joseph M. McClure. Samuel and Joseph M. McClure were the brothers of Elizabeth M. McClure, and James McClure was her uncle, a brother of her father. She and Samuel M. resided together. By the terms of this contract Elizabeth M. McClure was to retain the absolute control of the property which she then had, or might thereafter acquire during the life of Robert Neely, and at her death neither he nor his representatives were to claim any share of it; the said Robert Neely, at his death, was to cause or secure the sum of six hundred dollars to be paid annually to her during her natural life, in lieu of dower or right of thirds or any other claim in and to his estate. She accepted the covenants and agreed in consideration of them that she would not make any claim or demand whatsoever on the estate of the said Robert Neely other than for the annuity aforesaid. The testimony as to the value of the estates of the respective principal parties to the agreement is not very satisfactory; but, acting upon the best information furnished us, we fix the personal estate of Robert Neely at the time of the execution of the deed at fifty thousand dollars, and his real estate at twenty-eight thousand five hundred dollars. At the time of his death he appeared to have left a net personal estate of $68,795, and his real estate was valued at $50,547; and since his death his real estate has yielded an annual income of about $1,950. It is agreed by the parties that Elizabeth M. McClure’s estate, at the time of the execution of the deed, was worth about twelve thousand dollars ($12,000), and was all personalty. Robert Neely and Elizabeth M. McClure were married at the house of Samuel M. McClure, her brother, oh May 21,1874, by the Rev. Mr. Holifield, her pastor, assisted by the Rev. Mr. McColl, the pastor of Mr. Neely. She and her brother had continued to reside together at the old homestead after the death of her father, up to the time of her marriage. The father died about 1872; Joseph M. McClure died about 1878 and James M. McClure died about 1882. Robert Neely died on November 1, 1884, having first made his last will and testament, dated October 17, 1884, which was duly probated on November 10th following. By his will he secured the payment to his wife, Elizabeth M. Neely, of the annuity of six hundred dollars, provided for and agreed to be paid her by the marriage contract of May 16, 187-1, and by a codicil of the same date, he gave and devised to his wife the premises occupied by them at the time of his death, and all the furniture in the same, during so long a term as she should occupy the same. This provision by the codicil appears to have been brought about by the solicitations of his wife, and suggestions made by Mr. Held, who prepared his will. As we have already said, these parties were married on May 21, 1874. The wedding invitations were sent out to some forty or fifty friends and relatives some two weeks before this. A caterer from West Chester was engaged some time before, to prepare the wedding entertainment. The parties were cousins, but there seems to have been but little personal intercourse between them, prior to the six months before the marriage. Mr. Neely then began his attentions to Miss McClure, and visited her always once a week, and sometimes oftener. After his visit on Saturday, May 16th, a decided change was observed in Miss McClure’s conduct. Before that she was bright and cheerful. She then became distressed and was frequently found in tears. The change was so marked as to attract the attention of her dressmaker and housekeeper, and so continued until her marriage. No cause for this was assigned, and none could be given by those about her. Mr. Neely had a son by his second wife, and held the estate of this wife in trust for the benefit of this son. At his death this estate amounted to about $62,000, and goes entirely to his son. He also left to survive him a grandson, the child of a deceased son, by his first wife. The present Mrs. Neely was his third wife. He was an active, shrewd business man, and looked closely after his affairs. He was skillful in the management of his investments, and successful in the accumulation of his property. These are the facts of the transaction, as shown by the testimony, independent of that given by Samuel M. McClure. Are they sufficient to warrant the court in setting aside this contract ? It is a settled rule of law, that the parties to an ante-nuptial contract do not deal at arm’s length, but stand in a confidential relation, requiring the exercise of the greatest good faith. There should be a full disclosure of the circumstances and property of each: Bierer’s App., 92 Pa. 266. In the absence of any proof on the subject, we are entitled to presume that such disclosures were made, but any designed or material concealment ought to avoid the contract at the will of the party who has been injured: Kline v. Kline, 57 Pa. 122; Smith’s App., 115 Pa. 819. If, however, the provision secured for the wife is manifestly unreasonable and disproportionate to the means of the intended husband, it raises a presumption of intended concealment, and throws upon him the burden of disproving that presumption: Bierer’s App.; Smith’s Appeal; Kline v. Kline, supra; Kline’s Est., 64 Pa. 122. We are unable to say whether such disclosures were made by the parties to the contract in question, as we have no proof as to what took place between them on this subject. In the absence of such proof we are entitled to presume that they did. It therefore becomes important to inquire, whether the provision made for the intended wife is manifestly unreasonable arid disproportionate to the means of the intended husband, so as to raise a presumption of the intended concealment, and thus throw on the executors of Ms estate the burden of disproving this presumption. We have already found as a fact, that the personal estate of Robert Neely, at the time tMs deed was executed, was worth fifty thousand dollars, and Ms real estate was worth, twenty-eight thousand five hundred dollars. The annual rental value of this real estate at his death is shown to be about nineteen hundred and fifty dollars. We have no testimony showing a change in its rental value since 1874, and therefore we may presume it was worth about the same at that time. At the same period of time, the estate of Elizabeth M. Neely was worth about twelve thousand dollars. Her estate, therefore, at the time the deed was executed, was about the one fourth part of his. The deed provided that she should retain absolute control of the estate which she then had, or might thereafter acquire. It was to remain hers absolutely, and be entirely independent of her intended husband. This estate was wholly personal, and was thus freed from a possible, not to say probable, inheritance by her husband. In the absence of such a contract, her share of his then personal estate would not exceed the sum of sixteen thousand seven hundred dollars. She was, therefore, yielding the possibility of obtaining this amount upon his death, to secure the absolute control of twelve thousand dollars of her own estate. The deed further provides for the payment to her of an annuity of six hundred dollars. As we have already seen, Mr. Neely’s real estate was estimated to be worth twenty-eight thousand five hundred dollars, and the rental value at nineteen hundred and fifty dollars, at the time this deed was executed. Under the most favorable circumstances her yearly income from this branch of his estate could hardly exceed the sum of six hundred dollars. Comparing then the facts in this case with those developed in Smith’s App., 115 Pa. 319, and considering the views of the court expressed in that case, we cannot say-that the provision secured for the wife in the case in hand is so manifestly unreasonable and disproportionate to the means of the intended husband, as to create a presumption of fraud and concealment. She nowhere alleges that she was actually deceived, and we can hardly infer deception, when we consider the relative values of the estates of the two parties, and the mutual considerations moving them to enter into the contract. It is true, he may not have disclosed to her the extent and value of his estate, but we .cannot infer from the facts of the case that he intentionally concealed from her this information, and designedly practiced a fraud upon her. We are unable to find either actual or constructive fraud in the execution of the contract, and must therefore hold it as binding upon the parties to it. This being so, the petitioner has no such interest in nor claims against the estate of Robert Neely, as entitles her to obtain the relief prayed for, and we must dismiss her petition: Tiernan v. Biuns, 92 Pa. 248; Dillinger’s App., 35 Pa. 357. If we should be wrong in rejecting Samuel M. McClure as á witness, it may be proper to consider what effect his testimony would have upon the proceedings. By his testimony it appears that Robert Neely was about sixty years of age and Elizabeth M. McClure about fifty at the time of the marriage. He was then living on his farm, about four miles from the McClure homestead. He had always lived in that neighborhood. The parties are related, and he was intimate with the McClure family all his lifetime. He was frequently at their place when in active business, and he had been assisted pecuniarily by her father, when he was a young man. He was well known in the neighborhood as a successful man, and had the reputation at the time of this transaction of being rich. Elizabeth M. McClure had always resided with her father. She had little, if any, business experience, was of a nervous temperament and had no property, except what had been given her by her father, and which was in the stock of three banks. Part of this was given to her by him in his lifetime, and the rest bequeathed to her by his will. At the time of the marriage Robert Neely was an active, hearty man. He had been a drover, but was then out of active business, except as managing his own investments and the farm on which he lived. He began paying attention to Miss McClure in the fall of 1873. Their engagement was announced to Samuel M. McClure about the month of March, 1874. Some time prior to May 11, 1874, Mr. Neely consulted Mr. Wm. E. Barber, a member of the Chester county bar relative to a marriage contract, to be executed by him and Miss McClure. Mr. Barber prepared such a contract, and sent it to him by mail with a letter dated May 11,T874. The first knowledge Elizabeth M. McClure or Samuel M. McClure had of such a contract was on Saturday, May 16th. On that day Robert Neely came to the home of Elizabeth M. McClure before dinner. In the early part of the afternoon, he produced the marriage contract thus prepared and all complete, except its date, and the initial letter of Samuel M. McClure’s middle name, and asked Miss McClure to unite with him in its execution. This she apparently declined to do, for about three o’clock her brother, Samuel M. McClure, came into the room where these parties were, and found her in tears. He inquired the cause, and Mr. Neely pulled a paper out of his pocket, said that he had a marriage contract which he wanted Lizzie to sign. She declined to do so at that time, and in his presence, saying she thought it mean in Mr. Neely to ask her for a thing of that kind at this late day. He thereupon said to her, “If you don’t sign it there will be no wedding.” After some conversation Mr. Neely inquired of Mr. McClure what lie thought of it, and he replied that he knew nothing about it, he had never heard of a marriage contract. After some further conversation, Miss McClure consented to sign the paper, saying if there was time, and if it was not for the disgrace to the family calling in the invitations, she would never sign it. Mr. Neely, wishing to keep the execution of the paper within the knowledge of the family, suggested the calling in of James McClure and Joseph M. McClure as witnesses. They were seen by Samuel M. McClure, and informed of what was wanted, and about six o’clock the same evening came to Samuel M. McClure’s residence and witnessed the execution of the paper. When all these parties met together, Eobert Neely requested Samuel M. McClure to read the paper aloud in their presence. He did so, and at the conclusion of the reading the paper was executed. In the course of the afternoon, and before signing, Mr. Neely told Miss McClure that the purport of the agreement was, that he released all claim to her property, and she gave up all right to his property. In the course of the conversation the amount of the annuity was talked of, when she designated it as a very mean sum, as it would hardly pay her board. There appears to have been a good deal of conversation on the subject between the parties during the afternoon. She does not appear to have appealed to either of her brothers, or her uncle, for any advice on the subject, and they did not give her any. Her brother Samuel appears to have gone so far as to say to her that they two were old enough to attend to their own business, and she could do as she pleased about it. He understood at- the time the force and effect of the paper. Mr. Neely informed her, that if the paper was not executed it would upset all his plans. Samuel M. McClure appears to have had very little business experience, and no knowledge as to deeds, contracts, or wills. His business at that time was farming. lie had not been consulted by Mr. Neely as to acting as trustee for his sister, nor did ho know such was the intention until he read the paper that afternoon. He filled in the necessary blanks before it was executed. He was a man of forty-five years of age, while his brother Joseph was several years older. James McClure was over seventy years of age. Joseph M. McClure was then in business, and had been in business for many years. At the time the paper was executed, nothing was said by Mr. Neely as to the amount or character of his estate. Do these additional facts show that the contract in question was executed in fraud of Elizabeth M. Neely’s rights, or under such duress as should relieve her from its operation ? It is true, no disclosure of the property of either was made at the time the contract was executed, but the parties had known each other for years; they were cousins, and had lived but a few miles apart. Mr. Neely was about sixty years of age, and well known in the neighborhood as a successful business man, with the reputation of being well off. While it is true that this general information may not be sufficient to prove she had knowledge, approximating correctness, of the value of his property, still we can hardly believe Miss McClure was deceived as to his estate because of his silence. We no w find that her estate was then worth about one fourth of his, and that in this respect the contract was a fair and reasonable one, as she would inherit but one third of his estate. She criticised Mr. Neely’s offer of an annuity of six hundred dollars, after his death, as a mean offer, thereby indicating that she believed him able to do something better if he was so disposed. She was surrounded at the time by relatives, who must have had some knowledge of Mr. Neely’s circumstances, and who would have known, and remonstrated against any deception on his part, in this particular. While Mr. Neely appears to have been firm in his purpose to have an ante-nuptial contract executed, and while it might have been with propriety suggested at an earlier day, still we are unable to see any fraud practiced upon her. He not only ■made known to her at the time his wishes, but consulted with her brother upon the subject, in her presence. He explained to her the purport of the instrument, and told her that by its terms he released all right to her property, and she gave up all right to his, and in addition to this, he was to secure her the sum of six hundred dollars annually, in the event of his dying first. He called upon her brother and uncle to witness the transaction, and in their presence requested another brother to read over the agreement, so that all might hear it. This was done, and after all had an opportunity of considering it, it was exeexited. We cannot doubt slie understood the import of the paper, for she did not then appeal to any of them for advice. Some three or four hours elapsed from the timo Mr. Noely made known Ms wishes, until the paper was executed. It is manifest that her feelings were hurt, and she was annoyed that such a demand should be made upon her, but we cannot believe she was deceived or that a fraud was practiced upon her. Neither can we say that Mr. Neely’s importunities and firmness amounted to duress. It is true, he told her that her refusal would disarrange all his business plans, and if she did not sign the paper there would be no wedding. This expression was used about three o’clock in the afternoon, and the contract was not signed until about seven. In the mean time the whole matter had been discussed, not only by the intimate parties to it, hut by her brother and uncle. We can hardly believe that they woxdd stand by and see her reluctantly forced into an unfair marriage contract, rather than have the invitations then out, recalled. Such a thing might have been mortifying, but that is easier to bear than injustice. While we may condemn Ms gallantry, we cannot say slie was deprived of a free choice. She certainly did not yield because of the confidence in him, engendered by the betrothal, nor did he abuse tbe influence which the engagement gave him, for she notified all present that her action was the result of a wish to avoid the disgrace to the family by calling in tbe invitations to tbe wedding. She was given a free choice and she exercised it, after due consideration. The alternative presented for her consideration might have been an unpleasant one, but we cannot say it was legally unreasonable, or unjust. It would not be proper now to allow hor to repudiate her election because she may think that, by reason of present circumstances, she then made a mistake. The constraint which takes away free agency, and destroys the power of withholding assent to a contract, must he one which is imminent, and without immediate means of prevention; and be such as would operate on the mind of a person of reasonable firmness of purpose. A threat to withhold payment of a debt, or to refuse performance of a contract, or to do an injury which may at once be redressed by legal proceedings, will not amount to duress per minas. The power of mind necessary to give assent to a contract is tlie same in law and equity. A chancellor, it is true, will refuse his aid to enforce specific performance of a contract, for a reason less than that constituting duress per minas, or will set aside a bargain for extortion, or undue influence operating upon a weak mind, or under circumstances of a confidential relation; yet the rule in equity seems to be, that where a party is a free agent and is equal to protecting herself, the court will not interfere: Miller v. Miller, 68 Pa. 498; Brightley’s Equity, § 74. We are unable to find from these additional facts any reason why a chancellor should interfere in this case, and why he should decline to enforce the contract in question, and, therefore, upon the whole case we are compelled to refuse the prayers of the petitioner. The court having signed a final decree dismissing the petition at the costs of the estate of Robert Neely, deceased, — the order as to costs being entered by consent of the executors of the estate, the petitioner took this appeal, specifying that the court erred: 1. In holding that Samuel M. McClure, the trustee in the alleged marriage contract, was an incompetent witness, and in excluding his testimony. 2. In holding that there was neither active nor constructive fraud practiced upon Elizabeth M. McClure in obtaining her signature, to the contract, and that it is binding upon her. 3. In holding that the facts established by the testimony of Samuel M. McClure (treating him as a competent witness) do not show that the contract was executed in fraud of Elizabeth M. McClure’s rights, or under such duress as should relieve her from its operation. 4. In refusing the prayer of the petitioner and in dismissing her petition.
124 Pa. 427Philad., W. & B. R. v. McCormick (1889)
ERROR TO THE COURT OP COMMON PLEAS OP CHESTER COUNTY. No. 180 July Term 1888, Sup. Ct.; court below, No. 85 January Term 1888, C. P. On November 18, 1887, John A. McCormick and Elizabeth McCormick, his wife, brought trespass against the Philadelphia, Wilmington & Baltimore Railroad Company, to recover damages incurred by reason of the death of their son, William McCormick, through the alleged negligence of the defendant company. Issue. At the trial on May 21, 1888, the facts developed in the plaintiffs’ case were in substance as follows: On September 17, 1887, William McCormick, unmarried and about 22 years of age, took passage at night on the railroad of defendant company for West Chester. There were a number of cars on the train, some of them bound for West Chester, others for the Baltimore Central Railroad running in the direction of Oxford. The night was very dark and the cars crowded. Between Lenni station, a coaling place, and Wawa station, was a bridge over Chester creek 123 feet long, and passing perhaps 24 feet above the water. The Baltimore Central leaves the Philadelphia & West Chester at Wawa station, curving around to the left, while the road to West Chester runs on a straight line to the right of the station. When the train reached a point near Lenni station, it was divided. The engine took off the’cars for West Chester, which were in front of the train, pulled across the bridge to Wawa station, and then returned for the cars which were to proceed up the Baltimore Central road. William McCormick, though bound for West Chester was in one of these cars, the front one, which was unlighted. The engine was coupled to them and started slowly towards the station. When the cars had passed over a short distance the conductor announced, “ Passengers for West Chester, change cars,” or words to that effect. In a few minutes the train stopped, when young McCormick got up and went to the platform, followed by other passengers, and as he alighted from the steps' on the left side of the car, carrying an umbrella and a valise, he went over the bridge and was drowned. Five witnesses called for the plaintiff testified that the announcement by the conductor was to the effect above given, the language repeated by each witness being a little different. On the part of the defendant company, the conductor testified that somebody asked him the question, whether they changed cars for West Chester, and he said, “Yes, sir, you change at Wawa for West Chester; these cars go up the Baltimore Central.” He was corroborated by two other witnesses. The conductor and train men testified also that the cars were not stopped upon the bridge. It was shown that the distance to the bridge from the point where the engine was attached to the cars was 229 feet, 50 feet of which was traversed before the announcement of the conductor was made. The court, Futhky, P. J., submitted all the disputed questions of fact to the jury, under instructions as to the liability of the defendant company for the negligence of its servants, and answered the points presented as follows: 1 have been requested to charge you upon certain points, and I will do so, although I think probably I have already answered them in the general charge. The plaintiffs request me to say: 1. It is the duty of the company to provide for the safe receiving and discharging of passengers. It is bound to exercise the strictest vigilance, not only in carrying them to their destination, but also in setting them down safely, if human care and foresight can do so; and if the jury find from the evidence that the defendant failed to exercise such vigilance, and that the decedent’s death was the immediate result of sxrch failure, then the verdict must be for the plaintiffs. Answer: This is affirmed, subject to what I have said as to negligence upon the part of the defendant. I have also said that if there was negligence upon the part of the deceased the plaintiffs are not entitled to recover. Subject to that the point is affirmed.1 2. The decedent was called upon to exercise mere ordinary care, under all the circumstances, and the presumption is that he did so; the burden being upon the defendant to establish the contrary. Answer: That point is affirmed.8 3. If the jury find for the plaintiffs, it will render a verdict for such an amount as will, in its opinion, represent the pecuniary loss suffered by them in the death of the decedent, taking into consideration what the deceased would probably have earned and contributed to plaintiffs, as indicated by his habits, conduct and earning ability. Answer: This is affirmed, with the observations I have already made upon that subject.3 The defendant requests me to say: 1. The evidence in this case shows that McCormick attempted to leave the cars of the defendant while they were in motion: he was therefore guilty of contributory negligence, and there can be no recovery by the plaintiffs in this action. Answer: I have already said to you that if the deceased attempted to leave the cars of the defendant while they were in motion, then he would be guilty of contributory negligence, and if he is guilty of negligence there can be no recovery. Whether he was thus guilty is a question for the jury.4 2. That William McCormick had no'right to alight from the cars when approaching Wawa and away from a regular station constructed for that purpose, and the plaintiffs cannot recover. Answer: It is true that he had no right to alight from the cars away from a regular station, unless he thus alighted in pursuance of the directions of the conductor, and had a reason to believe from the direction of the conductor, that he was at the station.® 3. That when William McCormick, the deceased, left the cars of the defendant away from the regular station at Wawa, and other than where a regular station had been constructed for that purpose, he ceased to be a passenger and the liability of the defendant as a common carrier ended, and having been killed after this, the present action cannot be sustained, and the verdict must be for the defendant. Answer: The same observation which I have made with reference to the last point applies to this. Wiiliam McCormick did leave the cars at a point before Wawa was reached; there is no dispute about that; he left the car on the bridge and the station is farther along the road beyond the bridge. Of course he had no right, as I have said, to leave the car at that point, unless the conductor announced that the passengers would change cars at that point, and the train stopped shortly after-wards, and in consequence of that announcement, and the slowing np of the cars at that time, and their stoppage shortly after, the passenger had reason to believe from the direction of the conductor, that he was at the station where he should get off.6 4. That the defendant company having provided a safe mode of egress and a landing platform and station, and the deceased having voluntarily chosen to go from the car on another side from that on which the station stood, and having by reason of this, his voluntary conduct, met his death, this action cannot be sustained. Answer: This point has already been answered in what I have said in the general charge and in answer to the previous point. If he voluntarily chose to go from the car as he did, and by his voluntary conduct met his death, then of course the plaintiff cannot recover.7 5. That as a common carrier, the defendant was bound only to provide for the safe transportation of passengers, and their safe egress from the line of the road,, and that the defendant, in this instance, having done so, and the person killed did not avail himself of it, but left the train at an improper time and in an improper way, was not under the protection of the company any longer than he was on the train, and the accident occurring afterwards, by his own negligence, the plaintiffs cannot recover. Answer: This point is simply an amplification of the previous points, and I have already sufficiently answered it in what I have said.8 6. That apart from any rule or notice upon the subject, it is negligence in a man to stand upon the platform of a railroad car when in motion. Answer: This is correct law, and is affirmed. 7. That the evidence in this case shows that the accident to William McCormick, the deceased, would not have occurred if he had not been standing upon the platform of the cars of the defendant, and that he was therefore chargeable with contributory negligence, and the plaintiffs cannot recover in this action. Answer: If the car was in motion, then of course he would have no right to be on the platform, and would have no right to get off; and if the car was in motion when he thus got on the platform and got off, then, as I have said, there can be no recovery. But whether he was on the platform when the car was in motion, and whether he got off at the invitation of the conductor, is the question which I submit to the jury.9 8. In no event can there be any recovery in this case greater than the sum of $5,000, because of the acceptance of the act of April 4, 1868, by the Philadelphia, Wilmington & Baltimore Railroad Company, the defendant, as shown by the certified copy of the resolution of said company given in evidence.* Answer: That point is disaffirmed.10 9. There is no evidence of negligence upon the part of the defendant in this case, and the verdict of the jury must be for the defendant. Answer: This point is disaffirmed. There is evidence for the consideration of the jury upon the question of negligence.11 The jury returned a verdict in favor of the plaintiffs for $5,000. A rule for a new trial having been discharged, judgment was entered upon the verdict, when the defendant company took this writ, assigning as error, inter alia: 1-3. The answers to the plaintiffs’ points.110 3 4-11. The answers to the defendant’s points.4 4011
124 Pa. 435Cox v. Ledward (1889)
ERROR TO THE COURT OF COMMON PLEAS OF DELAWARE COUNTY. No. 62 January Term 1889, Sup. Ct.; court below, No. 40 March Term 1887, C. P. On March 24, 1888, a writ of scire facias sur mortgage was issued by Crosby M. Cox and Mattie A., his wife, in right of said wife, William A. Dobson and Kate E., his wife, in right of said wife, Anna W. Ledward, and William B. Broomall, assignee of John J. Ledward, against James Ledward, mortgagor, and the said Mattie A. Cox, Kate E. Dobson and Anna M. Ledward, terre-tenants. The sheriff returned the writ service accepted for the terre-tenants and nihil habet as to James Ledward. The terre-tenants pleaded, payment, payment with leave, etc. At the trial on October 4,1888, James Ledward “appeared” by counsel, who pleaded payment, payment with leave, etc. The plaintiffs then offered in evidence a mortgage from James Ledward to Spencer Mcllvain, dated July 24,1876, securing the payment of $13,000, in five years from date, recorded; an assignment of the mortgage by Spencer Mcllvain to Catharine Ledward, dated March 29, 1877, recorded; an assignment of the same mortgage, and the bond accompanying it, by Catharine Ledward to John J. Ledward, Mattie A. Cox, wife of Crosby M. Cox, Kate E. Ledward and Anna M. Ledward, the said Catharine Ledward reserving the interest on the principal of the debt secured and all rights and remedies for the collecfcion thereof, during the term of her natural life, this assignment being dated May 1, 1880, acknowledged May, 15 1880, and recorded on May 19, 1880; and a general assignment for the benefit of creditors by John J. Ledward to William B. Broomall, dated August 19, 1884, recorded, with the admission of counsel that Catharine Ledward had died November 18, 1886. Defendants’ counsel objected to the mortgage of James Led-ward to Spencer Mcllvain going in evidence without the satisfaction entered on the record by John J. Ledward. Plaintiff’s counsel: The satisfaction was entered on March 8, 1885, after the assignment of August 19, 1884. By the court: Let them all go in evidence; I hold the burden is on tlie defendants. The plaintiffs then rested. The defendants then showed by the proper records the facts following: James Ledward, the mortgagor, died on January 9, 1877, leaving a widow, Catharine Ledward, a son, John J. Ledward, and three daughters, Mattie A. Cox, Kate E. Ledward (afterward Dobson) and Amia M. Ledward. On March 13, 1877, the mortgaged real estate was adjudged in proceedings in partition to John J. Ledward. As of May 1, 1880, the widow Catharine, the owner of the mortgage by tbe assignment from Spencer Mcllvain, assigned it to Jobn J. Ledward and bis sisters, as appeared in the plaintiffs’ ease; and, contemporaneously, there were entered upon the recoi'ds, (1) a satisfaction of the recognizance in the Orphans’ Court given by John J. Ledward in the partition proceedings, except the sum of $1,749.92, payable to each of the three sisters, with interest from May 1, 1880; (2) a mortgage by John J. Ledward to bis three sisters, in $2,000, conditioned for tbe payment of interest to their mother for life and of $1,500 at her death to the sisters. The assignment of the mortgage to John J. Ledward, the satisfaction of the Orphans’ Court recognizance, and the mortgage by John J. Ledward for $2,000, were all entered of record on May 19,1880. At this point the defendants offered in evidence the inventory and appraisement in the assigned estate of John J. Led-ward, under an appointment of appraisers made on petition of the assignee filed November 3, 1884, showing no appraisement of any interest of the assignor in. the mortgage in suit. Objected to. By the court: Offer admitted; exception.1 On November 3, 1884, William B. Broomall, assignee of John J. Ledward presented his petition for leave to sell the mortgaged premises discharged of liens, under the act of February 17, 1876, but subject to the lien “of a certain mortgage, executed by James Ledward to Spencer Mcllvain on July 24, 1876, conditioned for the payment of $13,000, and recorded,” etc. An order of sale was granted in accordance with said petition, and a sale of the premises was made, returned and confirmed to Mattie A. Cox, Kate E. Dobson and Anna M. Ledward, followed by the deed of the assignor to said purchasers, dated December 20, 1884, subject to said mortgage. On December 22, 1884, Mattie A. Cox, Kate E. Dobson and Anna E. Ledward conveyed the premises to Laura A. Ledward, wife of John J. Ledward, for $5,511.76, taking a purchase money mortgage to each grantor for her share of the entire purchase money. Mattie A. Cox was then sworn as a witness for the defendants, but when it was shown that her brother John J. Ledward was dead, she was objected to as incompetent and her testimony excluded. The defendants then proved by the recorder the signature of John J. Ledward to the following entry upon the record of the mortgage: “ March 3, 1885, I hereby acknowledge to have received my share of this mortgage. [Signed] John J. Ledward,” and offered the entry in evidence. Objected to. By the court: Offer admitted; exception.8 On January 9, 1888, after a sheriff’s sale upon judgments in scire facias upon the purchase money mortgages given on December 22,1884, to Mattie A. Cox, Kate E. Dobson and Anna M. Ledward, by Laura A. Ledward, the mortgagees received the sheriff’s deed for the premises, and again had title thereto. Upon the foregoing facts it was claimed on the part of the plaintiffs that, at the time the suit was brought, the mortgage upon which the writ issued belonged to William B. Broomall, assignee of John J. Ledward, Mattie A. Cox, Kate E. Dobson and Anna M. Ledward, and that the mortgaged premises belonged to Mattie A. Cox, Kate E. Dobson and Anna. M. Ledward. The court, Clayton, P. J., charged the jury and answered the points presented as follows: The question is : Has the interest in that $13,000 mortgage of John J. Ledward been satisfied before the assignment of his estate to Mr. Broomall ? And that is the only question in the case. You can talk about it a week; you can cover the jury with books and documents; but, after all, there is but one question before the jury: has John J. Ledward’s interest in that $13,000 mortgage been satisfied, in any way that was satisfactory to him, before he made his assignment to Mr. Broomall ? Ilis interest was the one fourth of it after his mother’s death. That is the only question in the case. If you find from the evidence that it has; if the evidence satisfies you to a reasonable intent that Mr. Ledward did receive satisfaction for that mortgage in some way before he made the assignment to Mr. Broomall, then the defendants here are entitled to your verdict. Now, what is the evidence ? Mr. Ledward is dead; he cannot take the stand; the suit is between an executor and an administrator, and under the law the defendants cannot take the stand. The only witness who is free to tell you all he knows about it is Mr. Broomall. If he knows anything about if, it is his duty to inform you; if he does not do so, you are not to presume that he knows anything about it. It may be that he feels his duty as assignee is such as to prohibit him from voluntarily taking the stand and telling what he knows. In that event, when he was on the stand, the other side could have fully examined him; and I so expressed it. [Now the question is: From the evidence before you is there such evidence as to satisfy you to a reasonable intent — such evidence as will reasonably convince you — that that mortgage was satisfied, as far as Mr. Ledward was concerned, before he made his assignment.] 3 He has stated positively, by his ^solemn declaration under his hand, that it was satisfied; but unfortunately, when he made that declaration, he had no right to satisfy it unless it had been paid before. You are to decide that question by the evidence in the case. It does not always follow that a mortgage is paid on the day it is satisfied on the record. Your experience will tell you that a mortgage may be paid for years before it is satisfied on the record. It must have been paid before you can compel the mortgagor to satisfy it, and even then the law gives him eighty days before he can be sued for not satisfying it. So, you see, the fact that the satisfaction was not made before, is no positive evidence that the mortgage hadn’t been satisfied before that. Now you understand me. The record shows an entry made by John J. Ledward that he acknowledges himself to have received full satisfaction for that mortgage. Now, the question is, when did he receive it ? and the mere fact that at the time he made that declaration he had no right to receive it, is no positive evidence that it had not been paid before, because a man is not bound to enter satisfaction on the record until after he receives actual satisfaction, and it often is the case, as I have just remarked, that mortgages and judgments are not satisfied of record on the day they are paid. So you come back to the question: [Did Mr. Ledward receive actual satisfaction before he made his assignment to Mr. Broomall? If you find that he did, then your verdict ought to be for the defendants.] 4 [The first evidence that it has been satisfied at all is his declaration made at the time when he had no right to enter satisfaction on the record; but still, it is his declaration.] 5 He is dead; he cannot take the stand to explain it, but the fact is there. He acknowledges that he received satisfaction for that mortgage. Then, if that were the only occurrence, it might, perhaps, be too doubtful to convince you; and there ought, perhaps, to be some more evidence than the mere fact that he entered satisfaction at a time when he hadn’t the right to receive it. [If he had received it before, mark you, if it had been paid to him, or if it had been in any way satisfied by any family arrangement among those who owned the mortgage; if he had received satisfaction before he made the assignment, there was nothing wrong.in him coming into court and making that declaration just when he did; and, if he hadn’t satisfied it until to-day, but had received the money when he had the right to receive it; if he were alive to-day he would have the right to satisfy that mortgage, susceptible to proof that it had been acttially paid or settled at a time when he had the right to receive the money. You have that fact to start with.] 6 [What else have you? You have the fact that after he made his assignment, he appointed as his assignee a gentleman familiar with his father’s affairs, the counsel of his father’s estate, a gentleman who ought -to have known, if he did not, how his father’s estate had been settled. If he was the counsel for the estate, and if he represented all the parties interested in that estate, he certainly ought to have known where that estate went, and how it was settled. He appointed a gentleman who had been, or was, the counsel of his father’s estate, as his assignee; he didn’t appoint a stranger that knew nothing about his property; he appointed Mr. Broomall. Mr. Broomall, 1 suppose, came into court and asked the court to appoint two appraisers, who should appraise the estate of the assignor. Those appraisers, I suppose, if they did their duty, inquired what estate Mr. Ledward had. They were sworn to do that. If Mr. Broomall did his duty, he informed them of all the estate he knew that Mr. Ledward had. If Mr. Ledward was honest, it was for his interest to point out all his estate, for it went to pay his debts; it was his interest in law to inform his assignee and inform the appraisers where his property was. An appraisement was made, and it was filed; and it does not say a word about this property being Mr. Ledward’s; not a word; it is perfectly silent. It tells you what personal estate he had; it does not name this.] 7 Now, that is the second piece of evidence that the counsel for the defendants rely upon. Well, then, what is the third? . [The third piece of evidence that they rely upon is, that when the assignee had the property for sale, he advertised it subject to a $13,000 mortgage, but he did not say that the $13,000 was due upon that mortgage. He told the purchaser that there -was a $13,000 mortgage against the property find he must look out for that. It was the purchaser’s duty to go and see the holder and ascertain what was due. While he did say it was advertised subject to a mortgage conditioned for the payment of $13,000, he didn’t say it was subject to a $13,000 mortgage. He did not say that and didn’t, mean it. He meant that the mortgage was for $13,000, and that the purchaser was taking it subject to what was due upon that mortgage, but in the same advertisement he names that property as belonging to the three children of Mr. Ledward, and does not name his assignee as having any interest in it.] 8 [Now that is the third piece of evidence upon which they rely; and it does seem to me that these three pieces of evidence in the canse have some, at least, persuasive effect upon the evidence as to whether the mortgage had been satisfied in any way before Mr. Broomall became assignee. It seems to me there was enough to call upon Mr. Broomall, or any other person who knew anything about the case, to take the stand and tell all that he knew about it; and if it has the same effect upon your mind as upon mine, you may consider it, in the absence of evidence to the contrary, sufficient to rebut the presumption that it was not paid. If yon find it sufficient to rebut that presumption, you may, in the absence of all evidence to the contrary, find for the defendants.] 9 Now you are to judge of the weight of the evidence. [It is for you, and if it satisfies you to a reasonable certainty that there has been some family arrangement or actual payment by which Mr. Ledward had received satisfaction of his share of that mortgage before Ms assignment was made; if you find that to be the case, then the verdict ought to be for the defendants ;] 10 but, if it is not, and the presumption is that the whole mortgage is due, if it is not sufficient to overcome that presumption, then your verdict ought to be for the plaintiffs, I suppose for the amount of his interest. Have you fixed that ? Defendants’ counsel: I suppose we would better take a general verdict for the defendants. By the court: I say, then, gentlemen, if it is to be for the plaintiffs, then it is for the interest of Mr Ledward, which is the one fourth. Plaintiffs’ counsel: One fourth of $13,000 ? By the court: One fourth of $13,000, with interest from his mother’s death. Plaintiffs’ counsel: Which was November 13, 1886. By the court: But if you find for the defendants, that it was satisfied, that in reality satisfaction was received before the assignment to Mr. Broomall, you may find a general verdict for the defendants. If you find with Mr. Broomall that it was not, that is it was not reeei ved until after the assignment was made to him, then yon should find for the plaintiffs and assess the damages at one fourth of $18,000, with interest from the day of the death of the mother. Plaintiffs’ counsel: That is not true; it would divide the $3,250 between him and the three sisters. If they find for the defendants, should not the verdict bo for three fourths of $13,000 with interest ? Defendants’ counsel: Let them find for the defendants generally. By the coxirt: Let the jury, if they find for the plaintiffs, render a sx^ecial verdict, and say that they find that John J. Led-ward had received no satisfaction of that mortgage at the time he made his assignment, and then we can easily settle it. Now, gentlemen, I will answer the points that have been submitted, and leave the case with you. The plaintiffs’ x^oints are these : 1. Under all the evidence the verdict should be for the plaintiffs. Answer: I decline to so chaige you.11 2. All the evidence being in writing it is for the construction of the court, and the same is not sufficient evidence of payment or merger. Answer: 1 Recline to so charge you.18 8. There can be no merger of John J. Ledward’s interest in the mortgage into his ownership of the land, on account of the life interest of Catharine Ledward in the mortgage. Answer: That I affirm. That is to say, that when Mr. Led-ward bought the prox>erty subject to the mortgage, it did not merge, because his mother had a lifetime interest there. The defendants’ points are these : 1. By the taking in the x>artition proceedings of the land described in the mortgage in suit, John J. Ledward became liable to x>ay the mortgage, and his subsequently acquiring an interest in the mortgage was an extinguishment of the mortgage to that extent, unless it be shown that it was not the intention of John J. Ledward to so extinguish it. Answer: Well, 1 have already affirmed the plaintiffs’ point, and I therefore decline this poiiit. 2. The taking of the land in the partition proceedings; the settlement made by John J. Ledward with his mother and sisters ; the giving of the recognizance and its subsequent partial satisfaction; the giving of the $2,000 mortgage to his mother and sisters ; the proceedings in the assigned estate of John J. Ledward; the failure to mention the $13,000 mortgage among the assets of the assigned estate; the making of the conveyance by the assignee to the sisters of John J. L'edward, and the conveyance by them to his wife, and the taking of purchase money, mortgages for the whole purchase money; the acknowledgment by John J. Ledward, on the record, that his interest in the mortgage had been fully paid; these, and all the other evidence in the case, are sufficient under all the evidence, to fully justify the jury in finding that the interest of John J. Ledward in the mortgage now sued upon, has been paid or extinguished, and fully sufficient to warrant the jury in rendering a verdict for the defendants. Answer: Gentlemen, I will simply say that these facts may be considered by the jury as bearing upon the question of whether Mr. Ledward’s interest in the mortgage has been satisfied in any way, and if so whether it was paid or satisfied before or after his assignment. They bear upon that question, and you may consider that if they are sufficient to satisfy you that he did receive satisfaction before he made his assignment, then you may find for the plaintiffs. I do not advise you that they are fully sufficient, but say that they are for you to consider, and if they are sufficient to satisfy you, then your verdict will be sustained.13 3. W. B. Broomall, the assignee of John J. Ledward, has the same and no greater rights, with respect to the fact of payment or extinguishment of this mortgage, than John J. Led-ward himself would have, if he had not made an assignment and were now attempting to collect the amount of this mortgage from his sisters, and if the jury are sufficiently convinced from the evidence of the fact of payment, to find against John J. Ledward, were he the plaintiff, they should render a verdict against the assignee and in favor of the defendants now. Answer: This third point I ■ negative. I hold that Mr. Broomall has a greater right now in court than his assignor would have if he were here; that his assignor would not be permitted to discontinue the suit or receive payment now; therefore the assignee has rights the assignor would not have. Mr. Broomall does not oidy represent the assignor, but he represents the creditors. While he acts for the assignor strictly, the rights may he identical; but when he acts for the creditors, he has a greater right than the assignee would have. 4. Where there are two lien creditors, one of whom is the debtor of the other, the debtor is not permitted by law to receive payment until his creditor has been fully paid, and if in this case John J. Ledward was indebted to his sisters, and they both held liens against the same property, he was not entitled to receive payment of his lieu until his sisters had been paid their liens. The fact of such indebtedness in this case may be considered by the jury as hearing upon the question of payment or extinguishment of the mortgage in suit. Answer: Well, gentlemen, I decline to affirm this point. I have said to you all that I think is material, and I decline to affirm that point. It comes back to the single question in the case, which I have already stated to yon, and that is all there is in it, whether by any family arrangement or by an actual payment, Mr. Ledward had received satisfaction of his share of that $145,000 mortgage before he made the assignment. That is the question. Just keep that before you and direct the evidence in the case to that point, and you ought not to have any difficulty. As before stated, the onus is upon the defendants; they must satisfy you by sufficient evidence that it has been paid, and if the evidence satisfies yon, you may act upon it. I inform you that if you find the question in favor of the plaintiffs that 1 have submitted, just come into court and state that you have found that question in favor of Mr. Broomall. If you find it against Mm, just come into court and find for the defendants. Do not bother yourselves with making calculations.14 The jury returned a verdict for the defendants. Judgment having been entered, the plaintiffs took this writ, assigning as error: I, 2. The admission of defendants’ offers.1 3 8-10. The parts of the charge embraced in [ ] 3 *°10 II, 12. The answers to the plaintiffs’ points.11 13 13, 14. The answers to the defendants’ points.13 14
124 Pa. 450Byrne v. Stewart (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY. No. 173 July Term 1888, Sup. Ct.; court below, No. 602 June Term 1886, C. P. No. 1. On July 3, 1886, an action in assumpsit was brought by Samuel Stewart, Jr., against Peter Byrne, to recover upon a note dated March 1,1886, for the payment of $400 in three months after date, drawn by Joseph T. Byrne to the order of Peter Byrne, and by the said Peter Byrne indorsed. A plea was filed, but what it was did not appear upon the paper books. At the trial on January 31, 1888, before Bjregv, J., the plaintiff put the note in evidence and rested. The defendant then introduced testimony, without objection, to the effect that he had indorsed the note for use as part of the consideration of $1,500 to be paid the plaintiff by Joseph T. Byrne and another brother, in the purchase of a meat-shop on Ridge avenue; that to induce the purchase the plaintiff, who knew that defendant was but an accommodation indorser, had represented that the purchasers could make the money in two months, that he himself had made $1,900 in six weeks, that the ice-box was worth $800, and the fixtures $1,500. The purchasers kept the shop a little over three months, when it was sold out by the sheriff. James H. Young, called for defendant, testified that he was a carpenter1 and builder. Q. “ Have you examined the ice-box and fixtures in the place, and from your knowledge what can they be put there for ? ” Objected to by the plaintiff. By the court: Offer refused; exception.1 William Wein, called for defendant, testified that he had rented the house and owned the fixtures. Q. “ Just state to the jury first what you paid for the fixtures.” Objected to by tbe plaintiff. By the court: Offer refused; exception.8 Q. “ Have you ever fitted up any butcher places ? ” A. “ There is an ice-box in my place.” Q. “ I will ask you to state to the court the value of those fixtures.” Objected to by the plaintiff. By the court: Offer refused; exception.3 The defendant then rested. In rebuttal, the plaintiff testified that Owen Byrne had opened a tavern and plaintiff had loaned him money, and he asked Owen one day how he was getting along and he said, poor enough. Owen then came to buy the plaintiff out, and was asked $1,500; plaintiff told him there was a good living there for anybody; the first month he had kept there he had made $225; after that the place was so full of meat he couldn’t take account of stock, but there was a good living for anybody. Thomas Hughes, called for-plaintiff, testified that he was a butcher by trade; went on Wednesdays and Saturdays; it took five of us on Wednesdays and Saturdays : “ It was worth every dollar the Byrnes paid for it.” On cross-examination: Q. “ I propose to ask this witness whether he was familiar with the store when Mr. Stewart had it, and how much business was done there.” Objected to by plaintiff. By the court: Offer refused; exception.4 Fred Loney, called for plaintiff, testified that he was familiar with the store at the time it was bought by the Byrnes. Q. “ What would you have paid for the store at the time ? ” Objected to by the defendant. By the court: Offer admitted; exception.5 Q. “ What was the value, in your opinion, as the keeper of a shop like this ? ” Objected to by the defendant. By the court: Offer admitted; exception.6 A. “ $1,500, for a man in the business who understood his business.” The jury returned a verdict for the plaintiff for $441.68. A rule for a new trial having been discharged, the defendant took this writ assigning as error: 1-3. Tbe refusal of the defendant’s offers.110 3 4. The refusal of the defendant’s offer.4 5. The court erred in overruling defendant’s objection to the question put to witness Frederick Loney: “ What would he have paid for the store at that time ? ” 5 6. The court erred in overruling defendant’s objection to the question put to witness Frederick Loney: “What was the value, in your opinion, as the keeper of a shop like this ? ” 6
124 Pa. 455Patterson v. Caldwell (1889)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF PIIILA- ~ DELPHIA COUNTY. No. 220 July Term 1888, Sup. Ct.; court below, No. 797 March Term 1887, C. P. No. 1. On March 23, 1887, J. A. Caldwell and others, trading as J. E. Caldwell & Co., obtained a judgment against Mrs. L. H. Lynde for the sum of 83,758.82, and issued thereon an execution attachment summoning Robert Emmet Patterson and others, the executors and trustees under the will of Robert Patterson, deceased, and the Central National Bank, as garnishees. Served. To the interrogatories filed the garnishees answered, in effect, that they had no property in their hands, etc., in which Mrs. Lynde had any interest, but that they were executors and trustees under the will of Robert Patterson, deceased, and that Mrs. Lynde had the right under said will to receive a share of income, which, however, under the terms of the will, was not attachable, and that the nature and extent of her interest would appear from a copy of said will attached to the answer. Supplemental and more specific interrogatories were then filed, to which the garnishees answered that they were advised that, as appeared by the will, a copy of which was filed with their former answer, the defendant had no interest in the estate in their hands which could be attached in this proceeding, and suggested that they should not be required to make further answer until that question should be determined. It was stated in the history of the case, and undenied, that General Robert Patterson 'died in 1881, leaving four children, one of whom was Mrs. L. H. Lynde, the defendant in the judgment, and the issue of a fifth child, who was deceased. By his will, attached to said answers, which was dated May 13, 1879, and duly admitted to probate, he gave his residuary estate to his executors in trust, and provided : That so long as his estate remained undivided the net income should be semi-annually divided into as many parts as there should be, at the time of such division, survivors of Ms children and the issue of any deceased child, the issue of any child to count collectively as one only, and that the executors should pay one of these parts to each of the surviving children and one to the issue of each deceased child; that as soon as it could be done fairly the trustees should divide the estate into as many equal parts as there should be, at the time of such division, survivors of his clfildren and issue of deceased children, the issue of each child to count collectively only as one, and should designate each part, but should continue to hold and invest the estate after such partition; that the net income of the part designated for each of Ms children should be paid to such child semi-annually during its life; that the net income of the part designated for the issue of any deceased child should be paid to said issue if they should be all grandchildren, during their respective lives, but if they should be descendants in a more remote degree, the said part should vest in and be transferred to them absolutely. That upon the death of any of his children leaving issue surviving at the time of his or her death, the part of the estate, the income of which had been payable to such child, should be held by the trustees upon the same trusts, as to the estate itself and the income, as were declared concerning the parts of the estate set apart in the division for the issue of a deceased child, but that, if any of his children should die without leaving issue surviving at his or her death, the part of the estate, the income of which was payable to such child, should be held upon the same trusts for division and appropriation as if the same had never been divided and set apart from his estate. That, upon the death of any grandchild leaving surviving issue, the part of the estate of which such grandchild had received the income should vest in the issue of such grandchild, but that, upon the death of a grandchild without leaving surviving issue, the part should be held upon the same trusts as were declared for the brothers and sisters and issue of brothers and sisters of such grandchild, and in default of such brothers and sisters, upon the same trusts as if said part were an originally undivided part of liis estate. That the payments of income, whenever directed to be made by the trustees, should be inalienable personal provisions for the parties to whom the same should be payable, and should not be anticipated, transferred, pledged or assigned, or made liable, by legal proceedings or otherwise, for their debts, engagements or contracts. The paragraph upon which the present controversy arose, was the following: “ 21. I direct that either at the death of the last survivor of my now living children and grandchildren who may be living at the time of my death, or at the expiration of twenty-one years from my own death, whichever event shall first happen, any part of my estate which shall then be held in trust under the terms of this my will for the payment of the income thereof to any person or persons, shall vest absolutely in, and be transferred and conveyed by the said trustees or trustee to such person or persons, his her or their heirs and assigns, absolutely and in fee simple: And I declare that all trusts herein-before declared of and concerning my said estate are to be subject to this qualification.” Neither of the events contemplated, to wit, the death of all the testator’s children, or the expiration of twenty-one years from his death, had yet occurred. On April 21, 1888, the plaintiffs took a rule for judgment against the garnishees for want of sufficient answers, and on July 16,1888, the court, Allison, P. J., delivered an oral opinion, holding that the judgment defendant had an attachable interest in the principal of the estate of Robert Patterson, deceased, and entered judgment generally in favor of the plaintiffs against the garnishees. Thereupon the garnishees took this writ and assigned the order entering said judgment as error:
124 Pa. 462Pennsylvania R. v. MacKinney (1889)
3 OE PHILADELPHIA COUNTY. No. 92 January Term 1889, Sup. Ct.; court below, No. 331 June Term 1887, C. P. No. 3. On June 1,1887, Herbert C. MaeKinney brought case against the Pennsylvania Railroad Company, to recover damages for personal injuries received while a passenger on the defendant company’s railroad. At the trial on November 1,1888, it was shown that on May 21, 1887, the plaintiff was a passenger on an afternoon train from New York to Philadelphia.
124 Pa. 473Weaver v. Sheeler (1889)
No. 137 July Term 1888, Sup. Ct.; court below, No. 63 April Term 1886, C. P. On March 19, 1888, the record in Weaver v. Sheeler, 118 Pa. 634,… Held: in order that it might be preserved until the company became incorporated, then Mr. Weaver held an equitable title which belonged to the Pennsylvania Granite Company, under their parol purchase from Messrs. Knauer and Keim, in which event his title would rise no higher than theirs, and would be the subject of a mechanics’ lien.
124 Pa. 484Susq. Mut. Fire Ins. v. Elkins (1889)
ERROR TO THE COURT OH COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 20 July Term 1888, Sup. Ct.; court below, No. 312 March Term 1882, C. P. No. 2. On March 7, 1882, William L. Elkins, trading as William L. Elkins & Co., brought case against the Susquehanna Mutual Fire Insurance Company of Harrisburg, Pa., to recover the sum of $710.36, the loss apportioned to a policy of fire insurance for $1,575 issued by the defendant company to the plaintiff. At tlie first trial of tlie cause, there was a judgment for the defendant on a point reserved, which judgment on April BO, 1888, was reversed by this court, and a venire de novo awarded: Reported, 3 Penny. 367. At the second trial, there was a judgment of compulsory nonsuit entered in the court below, which judgment on October 4, 1886, was also reversed by this court and a venire de novo awarded : Reported 113 Pa. 386. The record having been remitted to the court below, the cause was again called for trial on January 5, 1887, when it was shown that in consideration of #51.98 premium and an additional deposit of $26.77 in cash, on December 10, 1880, the defendant insured the plaintiff’s Belmont Oil Works to the amount of #1,575 for one year from December 1, 1880, accoi'ding to the terms and conditions of the policy, some of which were as follows, to wit : “2. This company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor be actually paid and the deposit is made.” “ 7. The use of general terms or anything less than a distinct specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction therein.” “ 12. It is expressly understood and mutually agreed, that the person or persons, if any other than the assured, who have procured this insurance to be taken by this company, shall be deemed the agent or agents of the assured and not of this company, in any transactions relating to this insurance, and if the premium on this policy shall be paid to any person or persons other than the duly appointed or authorized agent of this company, such payment shall be at the sole risk of the assured.” “ And it is hereby mutually understood and agreed, by and between this company and the assured, that this policy is made and accepted in reference to the foregoing terms and conditions, and the by-laws of the company, which are hereby declared to be a part of this contract, are to be used and resorted to in order to determine the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for in writing.” Certain of the by-laws referred to were as follows, to wit : “ See. 10. All general and local agents or surveyors shall be appointed by the secretary, and shall be furnished with a certificate of his or their appointment with the seal of the company affixed thereto, setting forth the powers of such agents, and without said certificate no person shall be, or is, authorized to act as agent for this company.” “ Sec. 24. No insurance, whether original or continued, shall be considered as binding until the cash premium shall have been actually paid to some duly authorized and commissioned agent of the company.” “ Sec. 42. These, and all other by-laws hereafter adopted, shall not be abrogated, modified, or in anywise altered or added to, unless at a regular meeting of the board of directors, and all by-laws heretofore adopted by this company and inconsistent herewith are hereby repealed.” Thomas J.. Lancaster, called for plaintiff, testified that he was an insurance broker, his business being to receive orders for insurance, place risks, receive the policies, deliver them to the assured, receive the premiums and to transmit them to the companies or their agents ; that in 1880 and 1881 he had charge of all the plaintiff’s insurance, and placed that on the Belmont Oil Works in eighteen or twenty companies; that he received the policy in suit from Robert Crane, the agent of the defendant company, and, on December 17, 1880, delivered it to the plaintiff and received a check from him for the amount of the premiums and deposits; that he afterwards received from Crane a bill or statement of the premiums, etc., due on policies issued to Elkins in three companies one of which was the policy in suit, the amounts, less commissions, aggregating $200.82, and on March 8, 1881, he gave Crane a check for $100, on account of the bill generally; and that he paid the balance of the bill on March 15th. “ Crane and I,” said the witness, “ settled for premiums sometimes in thirty, sometimes in ninety days. He was a broker and I was a. broker. I took him business and he gave me business. It depended on our accounts how I settled with Crane as the agent of tins company.” The fire which injured or destroyed the insured property occurred on March 9, 1881. Robert Crane, called for the plaintiff, testified that he was an insurance agent and broker; that in 1880 and 1881 he did business with the defendant company. The witness proceeded : “ About April, 1880, I became its agent for certain purposes. I had no certificate of appointment from the company. I never saw one. I wrote the company in reference to doing business. The secretary called to see me. It was arranged that I should send it business. In pursuance of that arrangement I sent applications for insurance, subject to their approval. All applications they approved they wrote up the policies and sent them to me as their agent or representative. They sent mo the Elkins policy. I received it in December, 1880, by mail from the company. I delivered it to Mr. Lancaster, as I received the order from him, and from him I collected the premium. I received §100 on March 8th on account of my bill, and on March 15th received the balance. I charged him with all the policies I delivered. I credited the company with all the policies sent and charged myself with the premiums. I was responsible for the premiums. They looked to me for the premiums. 1 placed the checks of Lancaster to my credit. I sent the company my check for the balance of my account on March 16th, which they returned to me. When I received the policy, I recorded it in my register and sent it to Mr. Lancaster. I examined the applications and forwarded this one to the Susquehanna M. Insurance Company, with a description of the property. They approved it and wrote the policy. After recording it in my register, I delivered it to Mr. Lancaster and charged him with the premium. At the close of the month I sent him a bill. We, the company and I, usually settled about the 15th of the month. I have in some cases remitted to the Susquehanna M. Insurance Company before I received premiums, to close the account. I was responsible to the company for the premium or the return of the policy.” On cross-examination, the witness stated that he had received a letter from Mr. Huntzinger, “ informing me that the company was not keeping a general running account with mo. They wrote for my account. They asked for reports and remittance of premiums. I cannot now produce the letters making these requests, but I kept an account on my books and sent statements and checks for balances.” On behalf of the defendant, B. K. Huntzinger testified that in 1880 and 1881 he was secretary of the defendant company and had charge of the appointment of agents and of giving them instructions; “ At no time was there an arrangement of Mr. Crane with our company as to business. The company never issued to him a certificate of appointment as agent. I received applications for insurance from Mr. Crane..... His applications were signed by him, as agent for the applicant.....It is not true that the company held Crane personally responsible for the premiums on the policies sent him. We never made any demand on him for money which he had not collected. He always remitted after he had collected. He gave us no written agreements to be responsible for uncollected premiums.....The first remittance we received on account of Elkins’s premium was about March 17 or 18, 1881. That is the check. We refused to accept it and returned the check to Crane.....Mr. Crane did not remit on general account; he' always remitted specially for certain premiums. When a check covered several premiums, the letter always stated what premiums.” On cross-examination the witness testified that the company allowed Crane the usual commission of 25 per cent to all brokers who brought the company business. At the close of the testimony, the court, Fell, J., charged the jury as follows: I can probably best direct your attention to the law governing this case by first answering the defendant’s points, which are : 1. That under the terms of the policy, the company defendant would not be liable thereon until the premium was actually paid and the deposit made by the plaintiff, and that there is no evidence in this case that the premium was so paid or deposit made, and therefore the policy never took effect, and the plaintiff cannot recover. Answer : I decline to so instruct you.1 2. That under the terms of the policy in suit the payment of the premium thereon to any person, other than the duly appointed or authorized agent of the company, was at the sole risk of the assured, and the company was not made liable by such payment. Answer: I affirm this point. 3. That there is no evidence that either Lancaster or Crane was the duly appointed or authorized agent of the company, or acted in any other capacity than that of a broker, in effecting the insurance in question ; and therefore, both in law and under the terms of the policy, they were the agents of the plaintiff and not the agents of the defendant. Answer: There is no testimony showing that Lancaster was the agent of any one, except of the plaintiff, Elkins. But there is evidence that Crane represented the company in some capacity. What that was, and what were its scope and extent, are the questions which you must decide.3 4. That there is no evidence in this case that Robert Crane was authorized to bind the company defendant by the acceptance of the premium upon the policy, after the occurrence of a loss. Answer: I affirm this point. 5. That the plaintiff is bound by the provisions of the bylaws of the company defendant, which are made by the policy a part of the contract. Answer : I affirm this point. 6. That by the provisions of the by-laws of the company defendant no person is authorized to act as agent for said company without having been furnished with a certificate of appointment with the seal of the company affixed thereto setting forth the powers of such agent; that the evidence in this case is that Robert Crane had no such certificate, and therefore he was not authorized to act as agent for said company and could not bind it in any way. Answer : As I have said, there is testimony that Crane was authorized to act for the company in some respects; to forward applications, to receive and deliver policies and to collect the premiums. If his authority was given verbally and they ratified what he did under it, they would be bound by it. They cannot accept the benefit and refuse the burden.3 7. That the plaintiff was bound to inform himself as to the authority of the person with whom he was dealing, and the company defendant cannot be held liable for the unauthorized acts of a third party. Answer: I affirm this point. 8. That, where a party seeks to avail himself of the acts of an alleged agent, the burden of proof lies on him to establish both the agency and the extent of it. Answer: I affirm this point. 9. That the condition of the policy in suit, which provides that nothing less than a distinct specific agreement, clearly expressed and indorsed on the policy, can be construed as a waiver of any printed or written restriction therein, was binding upon the plaintiff, whether the alleged waiver was by an officer or agent of the company. Answer : Mr.-Crane, if agent, had no authority to waive any condition in the policy, but the company could waive a condition as to prepayment inserted for its own benefit, and such waiver need not be written nor indorsed on the jjolicy.4 10. That under all the evidence in this case, the verdict of the jury must be for the defendant. Answer: I decline to so instruct you.5 11. The payment of the premium by the plaintiff to Lancaster, his own broker and agent, was not a payment to the company defendant, nor to any agent of the defendant, and such payment was not a compliance with the condition of the policy, requiring actual payment of the premium to the company or its agent before the policy should be binding upon the defendant. Answer: I affirm this point. 12. Even if the jury is satisfied that Crane was the agent of the defendant to collect the premium, the evidence is distinct and uncontradicted, to the effect that he had no authority to waive any of the conditions of the policy; and inasmuch as the testimony shows conclusively that the premium was not actually and fully paid to him until after the fire, the plaintiff cannot recover. Answer : I decline to so instruct you.6 13. Before the plaintiff can recover upon the theory that Crane had obligated himself to pay the premium to the company, and that the company had agreed to accept Crane’s personal credit instead of the actual payment in cash, he must show that Crane had made himself legally responsible to the company for the premium, and as such legal responsibility, under the statute of frauds, can only be established by a memorandum in writing, which it is not pretended was ever given by Crane to tbe defendant, the plaintiff cannot recover upon any such theory as is suggested in this point. Answer : 1 decline to instruct as requested in this point.7 14. Before the plaintiff can recover upon the theory that the company had agreed to accept Crane’s credit instead of actual payment of the premium as required by the policy, he must show by a preponderance of evidence that Crane, for some good consideration, had made himself personally and legally responsible for payment of the premiums upon policies which he delivered to the assured, and that the company had agreed to accept his personal legal responsibility, in lieu of actual payment; and unless the jury is satisfied that this fact is established by a preponderance of evidence in the present cause, the verdict, so far as this branch of the case is concerned, should be for the defendant. Answer: I affirm this point. 15. Before the plaintiff can recover upon the theory suggested in the foregoing point, he must, in addition to the facts therein suggested, establish the fact that Elkins, the plaintiff, or his broker, Lancaster, had notice of thq alleged arrangement by which Crane’s credit was to be accepted in place of actual payment, and that they relied upon the same in withholding the actual payment until after the fire. Answer: I affirm this point. This is an action on a policy of insurance issued by the defendant, the Susquehanna Mutual Fire Insurance Company, to William L. Elkins. The policy is dated December 10, 1880, and is for $1,575. The fire occurred March 9, 1881, and the loss apportioned to this policy is $710.86. There is no dispute about this, and the only question is whether the policy bound the company. Mr. Lancaster and Mr. Crane were both insurance brokers, and [Mr. Crane represented for some purpose, at least, the Susquehanna M. Insurance Company]8 and Mr. Lancaster represented Mr. Elkins for the purpose of procuring insurance. Lancaster applied for and received the policy in question some time after its date, December 10th, and delivered it to Mr. Elkins on December 15th, and on the 17th he was paid for it by Mr. Elkins. He had a running account with Mr. Crane for premiums on policies received, and on the 8th of March, the clay before tbe fire, sent Mm a check for $100, and on the 15th a check for the balance, closing the account. March 16, 1881, Mr. Crane sent a check to the company, which paid them for this policy in full, but wliich they declined to receive. Mr. Lancaster was clearly the agent, of Mr. Elkins in the transaction, and his failure to pay was the failure of his principal. Mr. Crane gave credit to Mr. Lancaster, and the case turns to his, Mr: Crane’s, relation to the company. The policy contained this stipulation : “ This company shall not be liable by virtue of this policy, until the premium therefor be actually paid.” This stipulation was for the benefit of the company, and the company could waive it, if it desired to do so. [If the company, notwithstanding this condition, had delivered the policy to Mr. Elkins or Mr. Lancaster, without payment, and accepted in lieu thereof the promise of either to pay in the future, either at a fixed time or on the settlement of their mutual account, the policy would have been in force. This is what Mr. Crane did. Had he authority from the company to do this ?]„9 Lancaster had a running insurance account with Mr. Elkins, settled every three months. Crane had a running insurance account with Lancaster, settled at their convenience. The company had an account with Crane of this nature. They received from him applications and accepted or rejected them as they saw best. They sent him policies, on wliich he was to collect premiums or return the policy.- He sent statements with remittances each month. He says he marked those not paid and sometimes advanced small premiums. Sometimes he was in their debt and sometimes they were in his. There is a dispute as to his relations to the company and the course of business between them. The truth of the matter you must determine from the testimony. [If the company agreed to substitute the personal liability of Mr. Crane for the security which this clause of the policy afforded, and to dispense with the requirement that the premium should be prepaid, the policy was in force at the time of the fire; otherwise, it was not.] 10 The jury returned a verdict in favor of the plaintiff for •$959.86. A rule for a new trial having been refused, judgment was entered on the verdict, when the defendant took this writ and assigned as error: 1-7. The answers to the defendant’s points.110 7 8-10. The parts of the charge embraced in [ ] 81010
124 Pa. 498Emerick v. Moir (1889)
No. 395 January Term 1888, Sup. Ct.; court below, No. 16 March Term 1888, C. P. On December 1,1887, a case stated was filed wherein Roscoe K. Moir was plaintiff and George S. Emerick, defendant, in which it was agreed as follows, to wit: That on January 1, 1886, Roscoe K. Moir and George S. Emerick entered into articles of copartnership, under the firm name of George S. Emerick & Co., for the purpose of manufacturing and selling foundry facings and supplies, at West…
124 Pa. 505Hoffman v. Clough (1889)
ERROR TO THE COURT OE COMMON PLEAS OF DELAWARE COUNTY. No. 187 July Term 1887, Sup. Ct.; court below, No..... Term 1886, C. P. On February 15, 1886, John Clough brought an action in case against Sellers Hoffman to recover damages for personal injuries suffered through the alleged negligence of the defendant. Issue. At the trial of the cause on March 7, 1887, the case presented by the testimony on the part of the plaintiff was in substance as follows, to wit: John Clough, the plaintiff, was a carder by trade, about 62 years of age, and in November, 1885, applied to Sellers Hoffman, the owner of a cotton mill at Kellyville, for employment, and made an engagement with him. About 150 hands were employed at the mill. The carding machine at which the plaintiff was to work was placed upon a passageway about three feet and a half wide. About the middle of the passageway was a square opening in the floor, about two feet in diameter, over a water well .of considerable depth. The workman at the machine would pass over the opening when dressing his machine. There was a loose batten covering for the opening, made with cleats, so that when in position it would have to be lifted for removal. The hands were accustomed to obtain water from the well by a bucket let down into it, and the cover was frequently left removed from the opening. The passageway, at the place where the opening was, was usually dark. On November 17, 1885, when the plaintiff went to work, on the first day of his employment, he placed his tools to one side and stepped to his machine to adjust it, when he fell into the opening to his armpits, receiving severe injuries. He did not know, as he testified, of the existence of the well or opening. On the part of the defendant, testimony was introduced to the effect that the defendant had previously given orders that the opening should be kept closed and had directed that the cover be nailed down; that the plaintiff had passed over the opening several times before he fell into it; that another of the employees of the mill had passed over it just before the accident; that the plaintiff was somewhat intoxicated at the time, and had been drinking for several days; that he had previously worked at the mill, knew of the well and had used water from it. After the rebuttal case of the plaintiff, the court, Clayton, P. J., having instructed the jury as to law of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff, submitted the questions of fact to the jury and answered the points presented as follows, to wit: The plaintiff requests the court to charge: 1. An employer is bound to adopt, provide and maintain a reasonably safe and suitable place at which to carry on his business, so that workmen may perform their duties and without exposure to dangers which are not reasonably incident to the employment; and if the jury find that the well was in such condition as to be dangerous, and that the plaintiff was injured by falling into it, he is entitled to recover. Answer: I affirm that point,' gentlemen, provided you find that there is no contributory negligence upon the part of the plaintiff. If the plaintiff was also negligent he cannot recover. The law does not allow you, gentlemen, to measure the difference of negligence, or to say how much more negligent one side was than the other ; the jury is not permitted to do that. If you find that there was any contributory negligence upon the part of the plaintiff, the law absolutely shuts out his claim and he cannot recover. But i f there was no negligence upon his part, which contributed to this accident, then this point is undoubtedly law. 2. If the jury find that the defendant, Sellers Hoffman, permitted, in the floor of an ill-lighted passage in his mill, a well opening, through which water was taken by the hands, and that this opening was covered by a loose lid, the opening not being otherwise protected, it was negligence upon the part of the said Hoffman, and the plaintiff Clough is entitled to recover, if they find be fell into said opening and was injured without any negligence on his part. Answer: I decline to so charge you. The question of negligence is for the jury and not for the court. It is for you to say, under all the circumstances of the case, whether leaving a well in that condition was or was not negligence. 8. If in view of all the evidence, the jury find for the plaintiff they should allow in estimating damages, not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconvenience he is subjected to, and for the pain and suffering he has already endured, bodily and mentally, and which he is likely to sustain during the remainder of his life, from lfis disabled condition. Answer : That is affirmed. The defendant requests the court to charge: 1. If the jury believe that the plaintiff knew of the well and the condition of the cover at the time he engaged to work at the place, he was bound to take more than ordinary care, and if he did not, he was guilty of negligence and cannot recover. Answer: That is affirmed. As I stated, there must be no negligence upon the part of the plaintiff. 2. If the jury believe that the plaintiff was under the influence of liquor, or had been so much so, the day before the accident, as to render him incapable of taking care of himself, or of performing his work in the position in which the machine was, next to the well, he was guilty of negligence and cannot recover. Answer: Well, that is affirmed, provided you find that the accident would not have happened had the plaintiff been sober. If you find the accident would not have happened if he had been sober, he cannot recover, for that would be the result of his own drunkenness; if it was, he must bear the loss himself. Employers do not expect drunken men to work around machinery or around wells. 3. If the jury believe that the plaintiff, knowing of the well and its alleged dangerous condition, consented and agreed to work at the machine next to it, he took all the risks incident to such work and cannot recover. Answer: Well, gentlemen, if you find that he had been fully informed of the danger and then undertook to do the work, this point is affirmed.1 4. If the jury believe that the well and its covering were reasonably safe for workmen using ordinary care, there was no negligence on the part of the defendant, and the verdict should be for the defendant. Answer: That point is affirmed. That is the law. Reasonable safety is all the law requires; absolute safety cannot be required of any person carrying on business. 5. In no case can there be a recovery for more than compensation for loss of wages, such as the evidence shows the plaintiff could earn during the time he was necessarily rendered incapable of pursuing his usual occupation. Answer: Well, gentlemen, this is in the past tense, and I cannot affirm it as it is written. It applies to the future as well as to the past; if he is entitled to recover at all, he is entitled to have fair compensation for the loss of his earning power not only up to the present time, but whatever you may see proper for the future. 6. If the jury believe that the plaintiff in any way contributed to the accident, the verdict should be for the defendant. Answer: I have already stated to you that; that is the law; I affirm that point. 7. If the jury believe that some co-employee of the plaintiff, without the knowledge of the defendant, had left the covering off the well and in a dangerous condition, and the plaintiff fell in, the defendant has not been guilty of negligence, and therefore the plaintiff cannot recover. Answer: I decline to affirm that point, because I can easily conceive that while a co-employee may contribute to the injury, yet if there is negligence in the plaintiff he would be responsible, not the defendant.8 * The jury returned a verdict in favor of the plaintiff for $1,000. A rule for a new trial having been discharged, judgment was entered upon the verdict, when the defendant took this writ, assigning as error: 1, 2. The answers to the defendant’s points.1 8
124 Pa. 511Streets & Alleys in Parkesburg Borough (1889)
CERTIORARI TO THE COURT OF QUARTER SESSIONS OF CHESTER COUNTY. No. 132 January Term 1888, Sup. Ct.; court below, No. .....Term 1887, Q. S. On January 31, 1887, viewers were appointed upon tlie petition of the burgess and town council of the borough of Parkesburg to the Court of Quarter Sessions, representing that the corporate officers of the borough had laid out, enacted and ordained a number of streets and alleys in said borough, describing them by name and location, and that they were about to open the same and had been unable to secure from the owners of the lands occupied thereby releases of claims to damages which might arise from the opening thereof; praying for the appointment of seven disinterested freeholders of the borough to assess damages and contributions, etc. Viewers appointed and order issued. On April 25, 1887, the report of the jury of view was filed and confirmed nisi. On August 8, 1887, a rule was granted to show cause why said court should not make an order approving and confirming the report of the jury to assess damages, and directing the county treasurer to pay said damages to the persons entitled thereto, out of the county stock, returnable, etc. The rule having been argued, the court, Waddell, J., on November 7, 1887, filed the following opinion: This is a rule to show cause why the court should not approve and confirm the report of a jury appointed to assess damages done to certain land owners in the borough of Parkesburg, occasioned by the opening of certain streets and alleys in said borough, and also make an order directing the county treasurer to pay said damages out of the county stock. This borough was incorporated by special act of assembly, but, by the terms of the act, made subject to the provisions of the general borough law: Act of March 1, 1872, P. L. 195. It appears that the corporate officers of said borough surveyed, laid out, enacted and ordained the streets and alleys in question, and, being about to open the same, and being unable to secure from the land-owners releases of damages, applied to the court for the appointment of a jury to assess these damages. The court thereupon, under the provisions of the act of 1856, appointed seven disinterested freeholders of said borough to view the premises described in the petition, and assess the damages, if any, sustained by the owners. The jury performed this duty, and reported to the court an assessment of damages sustained by certain land-owners, by reason of the taking of their land alone, for the use of said streets and alleys. These land-owners now ask the court to approve and confirm said report, and further, to make an order directing the county treasurer to pay the damages thus assessed, out of the comity stock. The county commissioners deny the right of the court to make such an order upon two grounds: (1) because the county is not liable to pay such damages for the opening of streets and alleys, in boroughs incorporated under or subject to what is known as the general borough law; and, (2) because the court has no power to make or enforce such an order. 1. It is a fundamental principle of our government that private property shall not be taken for public use without fully compensating the owner. With this principle in view the legislature has, from time to time, provided that the owner of land taken for public roads shall be paid by the comity for all damages sustained by him. In the Newville Road Case, 8 W. 177, the court say: “ Whatever may he the nature of the loss or damage which the owner of the land sustains by the road passing through his land, he is to be compensated for it, and it cannot be pretended that occupying his land for a public road, and lessening the value of the remainder, is not a damage to him. It is unnecessary to inquire what might be the right of the commonwealth to take the land of individuals for public highways without making compensation, under the original reservation of six acres in every hundred for roads, etc. It is sufficient to say that they have not chosen to do so, but have directed compensation to the owner, since the year 1700, for taking improved land.....and have awarded compensation for whatever damage or injury he may sustain.” The act of 1836, after providing for the appointment of a jury to assess the damages done to land-owners by reason of the opening of public roads through their properties, proceeds as follows: “ The viewers so appointed shall make report in writing to the next Court of Quarter Sessions, and if this report be approved by the court, the amount of damages awarded shall be paid by the county treasurer, out of the county stock, to the party ‘ entitled thereto.” This continues to be the law, as regards the payment of damages occasioned by the laying out and opening of all county roads. It is also applicable to the payment of all damages occasioned by the laying out and opening of all streets in boroughs not incorporated under or subject to the provisions of the general law relating to boroughs. Does it apply to the damages occasioned by the opening of streets in such boroughs ? We need hardly say that no distinction is to be made between the terms, highway and street. In common parlance the word, street, is equivalent to the word, highway: Fitzwater Street, 4 S. & R. 108; and in the statute they are to be regarded as synonymous. It is clear, then, that the act of 1836 has made full provision for the laying out and opening of streets or highways, and the assessment and payment of all damages occasioned thereby. These provisions apply to all cases, except where, by subsequent legislation, they have been changed, modified, or repealed. Do the acts relating to boroughs change the general road law in respect to the laying out and opening of streets, and the payment of damages resulting therefrom ? The act of April 3, 1851, P. L. 320, § 27, provides “that like proceedings shall be had for the opening, widening, and straightening of the roads, streets, lanes, courts, alleys, etc., laid out and ordained in accordance with, the provisions of this act, as are provided by law for the laying out and opening of public roads within this commonwealth.” It further provides “ that such streets, lanes and alleys, etc., shall not be opened for public use until the damages shall be liquidated, and, upon any amounts due or to become due by borough corporations for the purposes aforesaid, interest shall be allowed and paid from the date of the adjudication of said damages.” It has been held that this act changes the mode of laying out streets in boroughs. Under it the borough authorities have the power to lay out and ordain streets without the intervention of a jury from the Court of Quarter Sessions. It is clear that, so far, the only change made in the act of 1836, by these provisions of the act of 1851, was as to the laying out of the streets. No change was made in the manner of opening them. It is true, as we have already said, that the third proviso of the third division of the 27th section provides that “ upon any amounts due or to become due by borough corporations for the purposes aforesaid, interest shall be allowed and paid from the date of the adjudication of said damages.” Tt is difficult to determine what this proviso means, but we think it is clear that it does not impose the payment of any damages for the opening of streets upon boroughs. Such a liability cannot be created by implication. It should be created by a clear and positive enactment, and especially is this the case where it has already been imposed directly upon the county. We are therefore justified in saying, that the provisions of the act of 1851 make no change in the road system of the commonwealth, except in the matter of laying out the same, and if the provisions of the act of 1836 are applicable to boroughs, the damages occasioned by the laying out of streets therein are still to bo paid by the county. The same act, however, further provides “ that all damages assessed, beyond the value of the land thus appropriated to public use, shall be paid by the corporation, and the jury shall separately assess the same.” The legislature here evidently intended to discriminate in the matter of damages. What had theretofore been regarded as one subject for consideration by the jury, was hereafter to be divided into two subjects; the value of the land appropriated to public use was to be one object of assessment, and all darn-ages beyond this was to be another object. The jury must separately assess these objects. The latter assessment must be paid by the borough. Who is to pay the other ? Upon this point the act is silent. It makes no provision for the payment of the same, and unless the land thus appropriated to public use is to be paid for under the provisions of the act of 1836, it cannot be paid for at all. The act does not impose this liability upon boroughs. In fact, the language used justifies us in saying that the legislature did not intend boroughs to pay this character of damage. The language is, “ all damages assessed beyond the value of the land thus appropriated to public use, shall be paid by the corporation.” The value of the land appropriated, unless counterbalanced by the advantages, must be paid by somebody else, or go without being paid. The legislature did not intend it should be taken without compensation. Such legislation might be regarded as unconstitutional, under the ruling in Pittsburgh v. Scott, 1 Pa. 314, and would certainly be against the settled policy of the commonwealth from its early foundation, and is not to be established by inference alone. If the value of the land appropriated is to be paid for, it can only be done, therefore, by virtue of the provisions of the act of 1836. If we are correct in these conclusions, are they modified or abolished by the provisions of the act of April 22, 1856, P. L. 525 ? This act recognizes the right of the town council to open streets in boroughs, as well as lay them out, and also defines the method of assessing the damages resulting therefrom. It is to be by a jury of the freeholders of the borough, appointed by the proper Court of Quarter Sessions, and this jury is clothed with authority to make assessments for contribution upon all such properties as may be benefited, over and above all disadvantage. In these particulars it changed the act of 1836 and the act of 1851. It then provides that the jury shall report their proceedings specifically to the court, who may subsequently modify, approve, and confirm their report, and, upon it being so disposed of, the burgess and council may proceed to collect all such damages and assessments for contribution, in the same manner as other debts due boroughs are by law collectible. Thus, we see, the changes made are in the man-: ner of opening the streets and the assessment of damages. No change is made in the payment of damages. Nothing is said on the subject of payment. It continues as it was under the act of 1836, modified by the act of 1851. In view of the acts of 1851 and 1856, are the provisions of the act of 1836 now applicable to the streets of a borough incorporated under the acts relating to boroughs ? The act of 1836 prescribed a general system for laying out and opening roads and streets throughout the commonwealth, and provided for the assessment and payment of the damages occasioned thereby. All its provisions are as applicable to boroughs as they are to townships: Newville Road Case, 8 W. 172. The acts of 1851 and 1856 are interposed as a substitute for the act of 1836, as far as they go and no farther. Beyond this the earlier statute remains untouched, and the later ones are to be construed and treated in connection with, and as part of it: Sharett’s Road, 8 Pa. 92; Smedley v. Erwin, 51 Pa. 445; In re Ridge Avenue, 99 Pa. 476; Somerset & Stoystown Road, 74 Pa. 63. Where there are several acts on the same subject, they are to be taken together, and as interpreting and enforcing each other. Statutes on the same subject are to be construed together. The general system of the legislation upon any subject-matter may be taken into view to aid the construction of any one statute relating to the same subject: Neeld’s Road, 1 Pa. 355. We are therefore of opinion that the county is the proper and only corporation liable to pay the damages occasioned to land owners in a borough incorporated by the court, by reason of the taking of their land for the use of streets and alleys. All damages beyond the value of the land thus appropriated to public use are to be paid by the borough. The damages assessed in the case in hand are for the taking of land alone. No damages appear to have been incurred beyond the taking of the land. 2. The second inquiry is, has the Court of Quarter Sessions power to make and enforce an order against the county treasurer for the payment of such damages ? It might be regarded as better practice, to enforce in the Common Pleas the payment of the damages when ascertained. The parties here interested, however, have thought proper to ask the Court of Quarter Sessions to make and enforce such an order, and the only question now for our consideration is, can we do so ? The confirmation of the award of the jury amounts to a final judgment of the court for the amount of the assessment. It cannot be questioned collaterally in any subsequent proceeding. The rights of all parties then become fixed; it is a judgment of the Court of Quarter Sessions for the payment of money. It is an inherent right in every court to enforce its own judgment, and the payment of such judgments is enforced by an order. Such orders have been issued by the Court of Quarter Sessions from the foundation of the government: Price v. County Commissioners, 1 Wh. 1; Commonwealth v. Commissioners, 2 Wh. 286, and can be enforced by virtue of the act of April 15, 1834, § 5, P. L. 538. The Court of Quarter Sessions, although it has no power to issue the prerogative writ of mandamus, has a right to issue an order to enforce a judgment resulting from an assessment of road damages, standing on its records: In re Sedgeley Avenue, 88 Pa. 509; Spring Street, 112 Pa. 262; Kensington Turnpike, 97 Pa. 276. We are of opinion that the county is liable to pay these damages, and that the Court of Quarter Sessions has power to issue an order requiring their payment. We must, therefore, approve and confirm the report of the jury; and, further, we direct an order to issue to the county treasurer, to pay to the respective parties entitled thereto, the damages awarded by said report, out of the county funds in his hands, when properly advised that said streets and alleys have been duly opened as provided for by the act relating to roads and bridges in the county of Chester, approved February 13, 1869, P. L. 174. A final decree having been entered in accordance with the foregoing opinion, the county of Chester took this writ, specifying that the court erred: 1. In making absolute the rule granted August 8, 1887. 2. In the decree of November 7,1887, directing that an order issued to the. treasurer of Chester county to pay to the parties entitled the damages awarded by said report, etc.
124 Pa. 528Appeal of Ryon (1889)
FROM THE DECREE OF THE ORPHANS’ COURT OF SCHUYLKILL COUNTY. No. 344 January Term 1889, Sup. Ct.; court below, No. . . . . 1888, O. C. In the distribution of the estate of Esther Maginnis, deceased, by Mr. J. W. Moyer, auditor appointed for the purpose, it was shown by the testimony that Margaret Maginnis died at Pottsville on July 5, 1868, leaving to survive her a husband, John Maginnis, and four children, to wit: Harry Maginnis; Mary Ellen, who married John Connor and died before Esther, leaving two children; Esther Maginnis, and Clara, who married Michael J. Ryon. Mrs. Margaret Maginnis left a house and lot in Pottsville which she devised to her husband and the four children in equal parts. The husband refused to take under her will, and claimed a life estate in the property, which then went to the children subject to his life estate. Esther Maginnis died on August 25, 1883, leaving a will dated July 17, 1883, duly admitted to probate, the disposing provisions of which were as follows: “ As to such estate, as it has pleased God to entrust me with, I dispose of the same as follows, viz.: “Item: I direct that seventy-five dollars be paid to my uncle Wm. Ford out of my interest in my mother’s estate. “Item: I direct that one hundred dollars be expended in procuring two tombstones, one to be placed over my beloved mother’s grave, and one to be placed over the grave of my beloved niece, Clara Ryon, out of said interest. “Item: I give and bequeath unto Father Gallagher, my spiritual adviser, the sum of fifty dollars. “Item: I give and bequeath unto my brother, Henry Maginnis, the sum of fifty dollars, out of said interest. “ Item: As to the remainder of my interest in the estate of my beloved mother, I direct that, after deducting funeral expenses and all other lawful debts, it shall be disposed of as follows, viz.: If said estate is sold before the death of my beloved father, then one half of said remainder shall be paid to him absolutely,-and the remaining half shall, be given to my sister, Mrs. Clara Ryon, or her heirs or assigns.” The father died in 1884, and afterward partition proceedings were instituted which resulted in a sale of the house and lot in Pottsville. The share of the proceeds, which formed the entire estate of Esther Maginnis, amounted to $1,301, out of which was paid the legacies given in her will and the costs and expenses of settling her estate, leaving a net residue of $811.36, for distribution by the auditor. Upon the foregoing facts the auditor made the following report: Clara Ryon, through her counsel, claimed that she was entitled to recover the whole balance for distribution, because John Maginnis having died before the sale, the legacy lapsed, and that as Mrs. Ryon therefore remained the sole legatee under the clause of the will, she was entitled to the whole fund. It was claimed in her behalf that the intention was manifest from the will, that Harry Maginnis, testatrix’s brother, should receive no other share of the decedent’s estate, than that bequeathed to him, and that the Connor family were to be excluded altogether. On the other hand Mr. Connor, guardian, and Harry Maginnis claimed to participate in the whole fund. A careful reading and consideration of the will convinces your auditor that the testatrix intended to dispose of her entire estate; and he is fully convinced that, under the contingency that has arisen, she failed to do so as to the portion of the estate that was to go to John Maginnis, if the real estate was sold during- his lifetime, and that as to this portion she died intestate. It may therefore be admitted that the testatrix did intend to dispose of her entire estate. Indeed, the whole tenor and scheme of the will indicates clearly that intention. In fact, she carried out that intention fully in the will, subject to a certain contingency: the sale of her property during her father’s lifetime, which, not having happened, the legacy lapsed. To whom did it lapse? To the other legatees? Not at all. If so it would go to them all alike in equal portions, thus including persons not related by blood or marriage. It could not be held to lapse to Mrs. Ryon, a sister, and not to Harry Maginnis, a brother, in the absence of provisions to that effect. It is undoubtedly true the legacy did lapse, but it lapsed to the estate. While admitting that testatrix intended to dispose of her entire estate, it is clear she failed in carrying out or expressing such intention in language, under the contingency that subsequently arose. The question therefore is not one of intention, but one of fact. Nothing whatever is expressly said in the will, or can be legally implied, as to what disposition should be made of the portion bequeathed to testatrix’s father in case the property was not sold during his lifetime, and hence your auditor holds she died intestate as to that portion of the estate, and will make distribution accordingly. The auditor then reported a distribution in accordance with his opinion, giving one half of the fund to Clara Ryon, as legatee, and one third of the other half to each of the three heirs of testatrix, as in an intestacy. Thereupon, exceptions were filed on behalf of both Clara Ryon and the Connor children. Said exceptions having been argued, the court, Green, J., filed an opinion, which after quoting the will of Esther Maginnis, proceeded: The father died before her estate was sold. The estate having been sold after his death, the question arises, how shall the estate be distributed ? Is there sufficient in the will to govern the distribution? or must the fund be distributed according to the intestate laws of the commonwealth? The auditor comes to the conclusion that, the father having died before the sale, the legacy to him lapsed; and that his share must be distributed according to the intestate laws. But he also comes to the conclusion that the legacy to Mrs. Clara Ryon did not lapse, and that she is therefore entitled to one half, in addition to her distributive share in the other half as an heir of the decedent. I can see no warrant in coming to such a conclusion from the language of the will. It seems plain that if one legacy lapsed, then the others did also. They must both either stand or fall together. Otherwise from the same language we draw two inconsistent conclusions. It may be taken for granted that the testator intended to dispose of the whole of her estate, yet it is very clear, from the language of the will, that she has only done so in a certain contingency. The grammatical construction leaves this in no doubt. The will does not provide for the distribution of her estate in the event of a sale after her father’s death, and I think the whole of the remainder must be distributed under the intestate laws. It is a mere guess to say that the decedent intended that Mrs. Clara Ryon should at all events have the one half, or that she should have the whole of it, as is contended for by her counsel. The words of the will do not show that such was the intention of the decedent. The distribution reported by the auditor was therefore corrected in accordance with the foregoing opinion, and the entire fund divided into three equal shares, one to each of the heirs . at law of the testatrix. Thereupon Clara Ryon took this appeal, assigning the distribution ordered as error.
124 Pa. 536Gorman v. Commonwealth (1889)
ERROR TO THE COURT OF QUARTER SESSIONS OF SCHUYLKILL COUNTY. No. 153 January Term 1889, Sup. Ct.; court below, No. September Term 1888, Q. S. On September 8, 1888, tbe grand jury returned as a true bill an indictment charging: In the first count, that Thomas Gorman, on, etc., at, etc., “ with force and arms, etc., did commit fornication with a certain Ellen Colihan, and a female bastard child on the body of her, the said Ellen Colilian, then and there did beget, contrary,” etc. In the second count, that the said Thomas Gorman, afterward, to wit, on, etc., at, etc., “ did commit the crime of adultery with one Ellen Colihan by then and there having carnal knowledge of the body of her, the said Ellen Colihan, the said Thomas Gorman being then and there a married man and having tlien and there a lawful wife alive, contrary,” etc. The case being called for trial, on September 10,1888, before Green, J., the defendant pleaded, not guilty; issue. The commonwealth then proved that on October 7, 1887, in the county of Schuylkill, the defendant had carnal connection with Ellen Colihan, a single woman, and that a female child was begotten which was born in tbe county on May 26, 1888. It was admitted that tbe defendant was a married man. Tbe defendant did not cross-examine the prosecutrix, the only witness testifying for the commonwealth, but called upon the commonwealth to elect upon which count of the indictment a conviction was claimed. The district attorney then moved the court for leave “ to strike out from tbe indictment the charge of fornication, and to amend the second count so as to include the charge of bastardy in accordance with the evidence.” The motion was allowed.1 The cause was submitted upon the evidence and the charge of the court, and the jury returned a verdict that the defendant was “ guilty of adultery and bastardy.” The defendant then moved in arrest of judgment, and assigned as the ground thereof, that the count of the indictment upon which he was convicted did not so charge the offence of adultery as to authorize the court to enter judgment against the defendant upon it. On October 15, 1888, the court, Gkeen, J., filed the following opinion and decree: The indictment in this case contained two counts, one charging fornication and bastardy, the other adultery. Before the trial, the defendant filed a motion to quash without assigning any reasons. This was overruled. The evidence upon the trial clearly made out the case; the commonwealth proving a single illicit connection between the parties, and the defendant admitting he was a married man. The commonwealth thereupon rested. The counsel for the defendant thereupon asked the commonwealth to elect upon which count a conviction was claimed. The commonwealth, instead of resisting the claim, acquiesced in it, and elected to proceed upon the count for adultery. Why they should have acquiesced in this demand of the defendant, we are at a loss to understand. It seems to have been based upon the idea that as but a single act of illicit intercourse was proven, a conviction upon the indictment generally would be a double conviction for a single act, authorizing the court to impose sentence upon each count. I cannot realize the force of this objection. It is a matter of every-day practice to join different offences in the same indictment when they are of the same nature; as in indictments for larcency or receiving stolen goods, etc.: Commonwealth v. Gillespie, 7 S. & R. 469; Stevick v. Commonwealth, 78 Pa. 460. A felony triable in the Quarter Sessions may be joined with a misdemeanor growing out of the same transaction and part of it, and the defendant may be convicted of the lesser offence: Hunter v. Commonwealth, 79 Pa. 508. It necessarily follows that two counts for misdemeanors growing out of the same transaction may be likewise joined in the same indictment, when but a single offence has been committed. It is very usual to charge it in various ways in two or more counts, so as to make the charge conform to any turn the evidence might take, as in indictments charging assault and battery, aggravated assault and battery, and assault and battery with intent to kill, or with intent to commit rape. This is recognized practice: Commonwealth v. Dobbins, 2 Pars. 380; Henwood v. Commonwealth, 52 Pa. 424; and the commonwealth is not put to an election on which count a conviction is asked. That is for the jury to say under the evidence. A conviction under the greater offence charged, including a conviction under the lesser, when both are of the same nature; a conviction for adultery, necessarily including the offence of fornication, because the lesser is included within the greater, the commonwealth may claim a conviction under both counts of such an indictment, when the offence has been made out by proper proof. Why should not this be the case when it has been decided that under an indictment charging adultery, the jury may convict of simple fornication ? Commonwealth v. Salman, 1 Leg. Chron. 320. For these reasons I think the commonwealth could not have been compelled to elect upon which count to proceed. But it is useless to discuss this at any greater length. The commonwealth having made its election and the jury having convicted the defendant of adultery and bastardy, the defendant now asks the judgment to be arrested on the ground that the count charging adultery does not aver that Ellen Coliban, the prosecutrix, was not the wife of the said Thomas Gorman; the charge being that the said Thomas Gorman “ did commit the crime of adultery with one Ellen Colihan.....the said Thomas Gorman being then and there a married man and having then and there a lawful wife alive.” This is the question which now confronts us. It is absolutely necessary that there should be an averment that Ellen Cólihan w^s not his lawful wife, in order 'to exclude any inference that she might be. I find no decisions in this state expressly upon this point, but I doubt whether any indictment was ever adjudged defective, after trial and conviction, which showed by necessary implication that defendant was not either the husband or wife of the person with whom the offence was committed. The fact that the indictment charges the defendant, Thomas Gorman, to have committed the offence with a person by the name of Ellen Colihan would probably be not sufficient to raise such necessary implication; but I think it is necessarily implied in the charge that he did commit adultery with her, he being then and there a married man, the charge of adultery with her necessarily implying that she was not his wife. In the absence of direct authority the ancient and approved forms and precedents are of great weight in determining such questions. I find that the indictment in this ease follows the form as laid down in Wharton’s Prec. of Indictments, 584, and which, according to the foot note, was also the form as laid down in Reed’s Digest, a still earlier publication. I find also that in indictments for fornication in this state, a form of the same kind is used as in adultery, there being no averment that the party with whom the fornication was committed was not the wife or husband of the offender. If the position taken by the defendant in this case is correct, it would be as necessary to insert such an averment in an indictment for fornication as in one for adultery. Even if the indictment were objectionable in this respect, it would, I think, be clearly amendable under our criminal procedure act of 1860, § 11. Under the liberal construction given to that act, amendments which do not affect the substantial merits of the case are readily allowed. This is especially the case when the objection to the form of the indictment is not exposed until after verdict. In the Commonwealth v. Harris, 1 Leg. Gaz. 455, it was decided that an indictment might be amended by inserting the technical words substantially charged. See also Davis v. Commonwealth, 4 Cent. R. 711, to the same effect. For these reasons the motion in arrest of judgment must be overruled. And now, Oct. 15, 1888, motion in arrest of judgment overruled. On December 3, 1888, judgment was passed that the defendant, on the charge of adultery, pay a fine of §75 and costs and undergo an imprisonment in the county prison for a period of four months; and on the charge of bastardy, that he pay to the prosecutrix $25 lying-in expenses, and $1 per week, until the child should arrive at the age of 7 years, and give bond, etc.8 Thereupon the defendant took this writ, assigning as error: 1. The order allowing the amendment of the second count of the indictment.1 2. The entering of judgment upon the indictment as thus amended. 3. The entering of judgment for bastardy upon the amended count, as neither in the original nor in the amended count was it averred that the child was born. 4. The judgment entered on the second count.8
124 Pa. 544Penn. Schuyl. V. R. v. Walsh (1889)
No. 49 January Term 1889, Sup. Ct.; court below, No. 42 June Term 1886, C. P. On April 8,1886, Maurice A. Walsh, Nicholas Cantwell and James E. Mulholland, executors of the last will and testament of the Most Rev. James F. Wood, Archbishop of Philadelphia, to the use of the Most Rev. Patrick John Ryan, Archbishop of Philadelphia, successor to the Most Rev. James F. Wood, brought an action in case against the Pennsylvania Schuylkill' Valley Railroad Company.
124 Pa. 560Penn. Schuyl. V. R. v. Ziemer (1889)
ERROR TO THE COURT OE COMMON PLEAS OE BERKS COUNTY. No. 322 January Term 1888, Sup. Ct.; court below, No. 45 January Term 1886, C. P. On December 25, 1885, Margaret Ziemer, widow, and five others who were the heirs at law of Samuel Ziemer, deceased, brought an action on the case against the Pennsylvania Schuylkill Yalley Railroad Company, to recover damages for injuries to their property caused by the construction of the defendant company’s railroad. The plaintiff’s narr ivas not printed in the paper books. Issue. At the trial on October 20, 1887, it was shown that Samuel Ziemer died on June 11, 1884, seised of a lot fronting 140 feet on Canal street and 47 feet on Bingaman street, Reading. Bingaman street made an obtuse angle with Canal street at one end of the lot. In this angle and fronting on Bingaman street were two dwellings connected with each other, though the front of one in which a store was kept was close to said street and that of the other was further - back. The side of the double house -was towards Canal street with no intervening structures. On the other end of the lot and fronting on Canal street were several buildings, a slaughtering-house, a meat-house, an ice-house and a stable. One of the dwellings was occupied a part of the time by tenants. Three railroad lines occupied Canal street longitudinally, in front of the property; first, the Wilmington & Northern, on the far side of the street opposite the property; then, the West Reading line, in the middle of the street, and then the defendant company’s line, on the near side of the street occupying a small portion of the foot-way at the curb-line. There was a switch line to the freight depot of the defendant company crossing all three lines diagonally in front of plaintiffs’ premises. The tracks were all laid at grade. There was testimony to the effect that by the construction of the defendant company's roadway, which was done in June, 1885, the drainage of plaintiffs’ property was destroyed; that access to the property on Canal street was made difficult and dangerous — “ To tell the truth, that property has no road any more;” that the dwellings were “full” of smoke, noise and dirt. John P. Strohockor, called for plaintiffs, testified upon the subject of the injuries and the damages. On his cross-examination the following offer was made: Mr. Derr: “ The witness on the stand having testified as to the effect of the construction of the defendant’s railroad upon the market value of the plaintiffs’ property, the defendants propose to test his knowledge of market values and of the effect of the defendant’s railroad upon market values, by asking him what the people owning property adjoining the plaintiffs and upon the same street, and the owners of property on the same street and in close proximity to the plaintiffs, received from the defendant company for the privilege of using their property in the street for the purposes of their railroad.” Objected to by plaintiffs, as irrelevant, immaterial, and incompetent. By the court: Offer refused; exception.8 Mrs. Margaret Ziemer, one of the plaintiffs, called: Mr. Bland: “Plaintiffs propose to ask the witness on the stand as to the effect of the construction of the road upon the custom of her store. The object of the inquiry is to prove that by reason of the proximity of the road to the store, and the danger resulting to horses and persons from the frequent shifting of engines to and fro near the store building of the plaintiffs, the custom of the store is greatly diminished; this for the purpose of proving the effect of the construction of the road upon the property as a place of business, and not for the purpose of recovering any loss by reason of the diminution of trade.” Mr. Derr: “ Objected to by defendant: 1. Because the store property does not front on Canal street, nor is it contiguous thereto; another property, separate therefrom and used for a different purpose altogether, being interposed between it and Canal street; as an element of damages, the matter proposed to be proved is too remote; 2. Because it is, generally, irrelevant, inadmissible, and incompetent.” By the court: Offer admitted; exception.3 The testimony of the witness, admitted, sustained the offer. In the defendant’s case George R. Van Reed was called, and it was proposed to prove by him that the defendant company’s road was duly located and staked out for construction upon Canal street opposite the plaintiffs’ property, in the fall of 1883, by resolution of the board of directors, and with the consent of the city councils ; so that though the road was actually constructed after the death of Mr. Ziemer, the location of it preceded his death, and the right to damages accrued at a time when the plaintiffs had no ownership. Objected to by the plaintiffs. By the court: Offer refused; exception.1 At the close of the testimony, the court, Eementrout, J., charged the jury: The parties plaintiff claim to be owners of certain property in the city of Reading at the corner of Canal and Bingarnan streets, fronting some forty-seven feet on Bingarnan street, and some one hundred and forty feet on Canal street. The jury will recollect the testimony as to the ownership, and the location and character of the buildings that were erected upon this property, as well as the parties who were upon the property at the time of the actual location and construction of this railroad. It is alleged that in 1855 the defendants located and constructed their railroad upon and down Canal street directly in front of this property, and that the plaintiffs’ property was in tliis way injured. The defendants have asked us to charge you : 1. That the plaintiffs have not submitted sufficient evidence of title to enable them to recover in this case. Answer : This point is refused. 2. The plaintiffs’ declaration sets up a reversionary interest, merely, to the greater portion of the property in question, and all their testimony is as to the difference in market value of the entire property, undiminished by any leasehold interest vested in other people, before and after the construction of the ra ilroad. A verdict based upon such testimony would embrace damages to which the owners of the leasehold interest would be entitled, and cannot therefore be rendered; and there being no evidence in the case on the part of the plaintiffs from which the jury could assess the damages to the plaintiffs’ property as described in the declaration, the verdict must be for the defendant. Answer: This point is also refused.3 3. The railroad company have not, by the construction of their railroad on part of the street in question, excluded the public therefrom; nor have they a right to exclude the public therefrom. The street still belongs to the people of the commonwealth and the public at large, including the plaintiffs’ tenants, and the railroad company have the right to use the said street for passage to and fro, each one in such use accommodating himself to the other in a reasonable manner. Answer: This point we affirm. Previous to the constitution of 1874, there could be no recovery in cases of this character. Unless there was an actual taking of property, an actual going upon the property and laying down the railroad tracks upon it, there was no remedy. Corporations like a railroad company, possessing what is known as the right of eminent domain, could place their tracks upon the public highway, although such action might materially injure the market value of adjoining properties, and without any responsibility whatever in damages. But the provisions of the constitution of 1874 require that just compensation should be made for property taken, injured, or destroyed, either in the construction or in the enlargement of such public works as railroad companies ; and in this way the constitution remedied a great defect and hardship which existed under the old law. [And the courts now say that under the new constitution a man who is injured is entitled to compensation for all the damages, direct or consequential, which he suffered or might suffer in consequence of the building and operation of a railroad placed upon a street in the manner that this was placed upon the street.] 6 You will observe that the language of the constitution is “ just compensation; ” just compensation for the injury that may have been done. Compensation for the damages, direct or consequential, is the measure to be considered by a jury. In ascertaining what this just compensation is the courts have laid down some general rules, and they do not materially differ, in cases of this character, from what they were previous to the constitution, when applied to an actual taking of land. If the plaintiffs were the owners in fee-simple, in possession, without having any portion of the land leased away, it would be the duty of the jury to inquire what was the fair market value of the property at and immediately before the location and construction of the railroad; then they would have to inquire what was the fair market value of the property at and immediately after the location and construction of the railroad as affected by it, with the railway upon the street, built as it is, properly operated as ordinarily railroads are. The difference between those two values would then be the just compensation which the constitution requires a jury to give a party who is injured. In ascertaining this difference of market values there must always be a fair and just, comparison of the advantages and disadvantages resulting from tile location and construction of the road; but the advantages, the law books say, the advantages to be considered are such only as are special to the property affected, and the disadvantages such as are actual, not speculative ; they must be such as substantially affect the market value of the land, and in no case are speculative damages allowed. In passing upon the question of inconvenience in this case, arising from the increased difficulty of access to the property, the ordinary danger from accidental fires to buildings not resulting from negligence is all to be considered. You will observe that. “ The danger from accidental fires to buildings not resulting from negligence ” is the point. Where a fire results from the negligence of a railroad company, there is a special remedy given ; and therefore the law does not permit anything else but the ordinary danger from an accidental fire to be taken into consideration, and then only as it may affect the market value of the property. In a general way, you take into consideration all such matters as, owing to the peculiar location of the road, may affect the convenient use and enjoyment of the property. [There must be taken into consideration the effect of the railroad there, operated in the ordinary way, locomotives running over it, smoke and dirt that may be made by them; all such matters, however, only as they may affect the market value of the property;] 4 and all the advantages and disadvantages are to be considered in comparison only as they may affect the market value of the land. The object in every ease is to ascertain the difference in the market value. Everything which gives land its intrinsic value is a proper subject for consideration. Land may be applied to various purposes, and for various objects ; and the construction oí a railroad through a property may perhaps destroy its value as a dwelling-house, and yet it may increase its value for manufacturing purposes ; and therefore the law says that in considering the matter, it is the general market value for any purpose that will induce persons to purchase, that is the true test. The principles of all these rules will apply to the present case, with this exception, that you are not to allow any compensation to the plaintiffs for the injury to the interests of their tenants. The tenants have a right of action for any injury done to their interest. You will recollect the testimony of the witnesses, that on certain parts of this property there were tenants for the period of one year. You will recollect the testimony on that point better than the court, but all those tenants would have a right to recover for the injury that might be done to their interests in that land which they possessed for that one year. You will, therefore, exclude from your consideration any possible injury which the tenants’ interests may have suffered; and you will consider, in estimating the amount of your verdict,- the amount of this just compensation which the law gives, the interest of the plaintiffs alone, carefully excluding any injury which the tenants may have sustained. On this question of market value in this case there is a wide difference of opinion. The plaintiffs base their estimates of the market value of the whole property, without any consideration of the interests which the tenants may have possessed in it for the one year. Their estimates upon that basis run from $2,500,1 believe there is one at $2,500, up to $3,500. On the other hand, the defendants say that the market value of this property has not been injured at all. Some of their witnesses say that it has been increased;-that previous to the construction of the defendant’s railroad there were two other railroads passing along there, which rendered the street dangerous, and which also subjected these properties to the annoyance of smoke and dirt; and that that may have affected their market value, and that the running of this railroad down the street, and the corresponding special advantages resulting specially to this property, were of such a nature that all disadvantages or annoyances are counter-balanced; and that, therefore, the general market value of this property has not been affected. Now, if that were so, the verdict should be for the defendant; if otherwise, then you will ascertain the difference in market value of the interests which the plaintiffs have in that property, taking as your guide the rules which I have laid down to you. [Should you come to the conclusion as to a certain amount which should be alloAved plaintiffs, you will add to that amount interest from June, 1885, to the present time.] 7 The jury returned a verdict in favor of the plaintiffs for $2,515.33. A rule for a neAv trial having been discharged, the defendant company took this writ, assigning as error: 1. The refusal of defendant’s offer.1 2. The refusal of defendant’s offer.3 3. The admission of plaintiffs’ offer.3 4. The part of the charge embraced in [ ] 4 5. The answer to the defendant’s point.5 6. 7. The parts of the charge embraced in [ ] 6 7
124 Pa. 572Greenwood v. Phil. W. & B. R. (1889)
The rule requiring one about to cross the tracks of a railroad company, D stoP> Dole and listen for an approaching train, is a clear and certain rule of duty, and a failure to observe it is more than evidence of negligence, it is negligence of itself. 2. Moreover, the rule is applicable as to railroad crossings in cities and towns, as well as to crossings in the open country, and whether safety-gates are maintained at street crossings or not, and whether or not ordinances regulating the speed of approaching trains are observed by the railroad company.
124 Pa. 578Blackman v. Commonwealth (1889)
ERROR TO THE COURT OE QUARTER SESSIONS OE SCHUYLKILL COUNTY. No. 21 January Term 1888, Sup. Ct.; court below, No. 2,058 July Term 1886, Q. S. On September 10, 1886, the grand jury returned as a true bill an indictment tbat Oliver J. Blackman on July 1, 1885, did commit fornication with a certain Lydia Ami Leehner, and a female bastard child did beget, contrary, etc. The defendant pleaded, not guilty. At the trial on September 15, 1886, Lydia Ann Leehner, the prosecutrix, was called for the commonwealth, when the following offer was made: “ Commonwealth offers to prove the offence, then to follow it with evidence that the defendant was a fugitive ; that the child was begotten in 1881; that in November, 1881, information was made against defendant before John E. Fertig, a justice of the peace, a warrant issued and placed in the hands of William Brown, constable ; that seaych was made for defendant and he could not be found; that about a year thereafter prosecutrix received information that defendant was living in the state of New York; with other evidence that defendant was not a resident of this state for two years preceding the finding of this indictment.” The defendant objected: The indictment avers fornication committed July 1, 1885; the offer is to prove a crime more than two years prior to that time; the proof offered to show that the case comes within the exception to the act, can only apply where the true time is laid in the indictment and the facts set out therein bring it within the exceptions. By the court: Offer admitted; exception.1 The commonwealth then proved that the child was begotten by the defendant in January, 1881, and was born October 17, 1881; that about six weeks before the child was born, the defendant who then lived in the county, started away with the prosecutrix promising to marry her, but deserted her on the journey; that the warrant for his arrest was issued in March, 1882, and the constable holding it, as well as the justice who issued it, made unsuccessful efforts to find the defendant by search and inquiry within the state where it was reported he might be found. He was eventually arrested iu June, 1886. No testimony was offered on the part of the defendant. The court, Pursuing, P. J., charged the jury inter alia: [If the jury find from the evidence that the defendant had run away from the county for the purpose of preventing his arrest, and remained away under circumstances which baffled all efforts made to find him, he might be convicted whether his place of concealment was within or without the state. .....The meaning of the statute, we think, is, that where any offender shall not have been an inhabitant of the state, or, if within the state, he leaves his usual place of residence therein and thus frustrates any attempt to arrest him, he cannot avail himself of the statute of limitations if, as was the fact in the case in hand, he is indicted within the time prescribed after his return to his customary residence.] 8 The jury returned a verdict that the defendant was guilty. Motions in arrest of judgment and for a new trial were then made on behalf of the defendant, which, in an opinion filed on July 11, 1887, citing § 77, act of March 31, 1860, P. L. 450 ; ■Commonwealth v. Haas, 57 Pa. 443; Roosevelt v. Kellogg, 20 Johns. 208; Graham v. Commonwealth, 51 Pa. 255; Commonwealth v. The Sheriff, 3 Brewst. 394; 1 Whart. Crim. Law, § 446; Bishop, Crim. Proc., § 405; People v. Van. Santvoord, 9 Cow. 655; Commonwealth v. Ruffner, 28 Pa. 259, were overruled. The usual judgment was then passed upon the defendant, when he took this writ and assigned as error: 1. The admission of plaintiff’s offer.1 2. The charge to the jury embraced in [ ] 8
124 Pa. 583Appeals of Oberholtzer (1889)
Nos. 287, 288 January Term 1889, Sup. Ct.; court below No.........Term 1886, C. P. On February 2, 1886, John W. Gibble made an assignment of his estate, real and personal, to Samuel R. Zug and John M. Stern, for the benefit of his creditors. In 1888, the assignees having settled their account, Mr. Charles M. Zerbe was appointed auditor to distribute the balance shown thereby to the creditors entitled.
124 Pa. 595City of Scranton v. Gore (1889)
No. 115 January Term 1889, Snp. Ct.; court below, No. 414 April Term 1887, C. P. On March 8,1887, an action in case was brought by William Gore against the city of Scranton to recover… Held: under this evidence, to be the act of the city authorities. We have here the whole thing originating with the city councils. It is true their authority was delegated to this sidewalk board, and it may be that they have not the right to delegate the authority lodged in them in that way.
124 Pa. 610Borough of Milford v. Milford Water Co. (1889)
ERROR TO THE COURT OE COMMON PLEAS OE PIKE COUNTY. No. 138 January Term 1889, Sup. Ct.; court below No. 3 October Term 1885, C. P. To tbe number and term of tbe court below indicated, the Milford Water Company brought suit against the borough of Milford, declaring in the common counts in assumpsit. Issue. At the trial of the case on June 7,1888, it was shown: That on April 9, 1875, the borough council enacted ordinance No. 2, which was as follows: “ It is hereby ordained and enacted, by the chief burgess and town council of the borough of Milford, That from the day and date of the approval hereof, the said corporate officers of said borough offer and agree to pay the sum of three hundred dollars annually for the term of ten years to any company first applying that will furnish a proper, sufficient, suitable and permanent supply of water to the said borough, for the extinguishment of fires, cleaning the streets, and other public purposes. during the said term. The said corporate officers reserve to themselves the privilege of placing the plugs and requisite attachments, and as many as they may deem necessary, which they agree to furnish at such points and distances within the corporate limits of the borough as they may see fit.” That on June 17,1875, the Milford Water Company adopted tlie following- resolution: “ That we accept the offer of the borough of Milford to pay the water company that shall first apply for the same the sum of three hundred dollars annually, for tlie term of ten years, according to the terms of borough ordinance No. 2, of said borough, and that we hereby apply for the benefit of the same, and that the secretary notify the borough council hereof.” That, the resolution of the water company having been communicated, on January 25, 1876, the borough council adopted the following resolution: “That the application of the Milford Water Company, as read, be hereby approved, and that the same be recorded at length, and that the said company be, and are hereby accepted by the borough of Milford, for the purposes of, and under and subject to the conditions contained in said borough ordinance, to w'it, ordinance No. 2; and that the secretary be authorized and directed to notify said company of the same.” This action was communicated to the water company. Tlie other facts made to appear are fully shown in the chai’ge to the jury, Seely, P. J., which after reciting the foregoing ordinance and resolutions, proceeded: The borough council proceeded to levy a water tax, and they paid over, from time to time, to the water company, the amount agreed upon for the use of the water. They connected hydrants with the mains of the water company, and for ten years, the period provided for by this ordinance, they collected the water tax, and for eight years they paid over to the water company the amount which it is alleged was agreed upon for the use of the water. In the spring of 1885 the borough refused to pay for the year which then expired. In the year 1877, the borough of Milford gave notice, and adopted a resolution requiring the water company to extend their mains so as to supply water at the corner of Broad and John streets, and at the corner of Harford and Front streets. This demand of the borough was not complied with. In May, 1879, the borough council adopted a resolution requiring the water company to furnish a supply of water at the corner of Ann and Sixth streets, at the corner of Catherine and Fifth streets, and at the corner of Harford and Front streets, and gave notice to the water company of this demand. The water company did not comply with this demand. In April, 1880, the borough council adopted a resolution requiring the water company to supply water at the corner of Catherine and Fifth streets, at the corner of John and Broad streets, and gave notice to the water company of this demand, and with this the water company did not comply. Now we say to you that it was for the borough to determine whether water was required at those points, and they had a right to require the water company to furnish them a supply of water at the points iiamed, and it was the duty of the water company, under their contract, to furnish that supply. That they did not do so was a failure on their part to comply with the terms and provisions of the contract which they had themselves entered into, and it was the privilege of the borough, when the water company refused to comply with these notices, to rescind their contract, because of the failure of the other party to perform. They could have rescinded this contract, and given notice to the water company that they would no longer take the water under its terms; that they would no longer recognize any obligation existing under that contract, or recognize the contract as existing between themselves and the water company in any manner. Whether it would be necessary, or not, that they should go further, and cut off their hydrants from connection with the mains of the water company it is not necessary to consider, now, because they took no steps to rescind that contract. They gave no notice to the water company of an intention on their part to release the water company from any obligation to supply water, nor to indicate a purpose on their part to discontinue the use of the water from that time. The borough could not continue to use the water, and to insist upon receiving the benefits of a contract which they had entered into, and then refuse to pay for the water. They must do one thing or the other. They must recognize this contract as existing, and involving an obligation upon both parties, or else declare this contract at an end, releasing both parties from its obligations. If it remained a contract for one party, it remained a contract, for both parties. The benefit to the borough did not depend upon the quantity of water actually used. Whether the borough should pay the consideration named in this contract or not, does not depend upon, the question whether fires occurred in the borough during the year, nor whether they actually had occasion . to use this water or not. The borough might have been free from fires for years, and may not have had occasion to draw a drop of water from these hydrants for years; but so long as by their contract they could require the water company to maintain a supply of water at these points, in order that it might be available in case a fire should occur, they were deriving a benefit to which they were entitled under the contract, and they were bound to pay for that benefit. So that, so far as this year is concerned, it is not material to inquire whether there was a fire, or any actual use for the water or not. The question is, did the parties continue in the same relation this year as they did before? Was the water company required by this contract to furnish a supply of water for those hydrants, and did they do so ? There seems to be no question about that. It was only at the end of this year that the borough notified the water company that they would not use the water, and that they -would not pay for it. The plaintiff’s counsel have submitted certain points in writing, asking us to charge you: 1. The continued use of the water by the defendant under the contract with the plaintiff, without rescinding the same and notifying plaintiff, is an admission on the part of defendant of a substantial compliance with the contract on the part of the plaintiff. Answer: We affirm this point so far as to say that the continued use of the water was so far a recognition of the continuing force of the contract as to render the borough liable under the terms of the contract.1 2. If the jury believe from the evidence that water was used from, and fire plugs attached to plaintiff’s mains for nine years, and payment for said use made by defendant for eight years, then defendants have accepted the performance of the contract on the part of the plaintiff. Answer: We affirm this proposition to the same extent, that by this use the borough still recognized the contract, and was required to pay for the water. The only hesitation we have about the full affirmance of the point is this expression, “the defendants have accepted the performance of the contract.” They have, so far as relates to the purposes of this case.8 3. If the jury believe from the evidence that defendant used the water of .the plaintiff under this contract for eight years, and paid for said use, and continued to use said water under said contract during the year for which suit was brought, and attached fire plugs to plaintiff’s mains during that year, the defendant cannot now set up want of compliance with the contract, and the plaintiff would be entitled to recover. Answer: We affirm this point.3 The defendant’s counsel have also submitted certain points in writing, requesting us to charge you : ■ 1. That the plaintiffs, if they recover at all, can only do so by virtue of the ordinance and acceptance of it, and not by virtue of any implied contract. Answer: That point we affirm. 2. That under the provisions of ordinance No. 2, the water company are bound to furnish a supply of water for the extinguishment of fires, cleaning the streets, and other public purposes, and for the supply of fire plugs at such places as the borough officers deem necessary. If the jury find that the water company failed to do this, they violated their contract, and the borough had a right at any time to refuse further payment. Answer: We refuse this point, if it means that the borough at any time had a right to refuse payment for services already rendered by the water company. We affirm it, if it means that the borough had at any time a right to rescind this contract and give notice to the water company, and then refuse further payment.4 3. That inasmuch as the plaintiff company claim to recover under a special contract, it is incumbent on them to show that they have fulfilled their part of the contract, and if the jury find that they have not done so, they cannot recover, and the verdict must be for the defendant. Answer: We decline to affirm this proposition.5 4. That inasmuch as it appears from the records of the borough, and of the water company, and is uncontradicted, that a majority of the borough officers, chief burgess, and town council, at the time of the passage of ordinance No. 2, were officers and stockholders of the water company, at the time of their acceptance of the ordinance completing the contract, the contract was against public policy, in contravention of the act of assembly, and void, and the plaintiff cannot recover and the verdict must be for the defendant. Answer: At present we refuse this point. We propose to reserve this question for further consideration.6 5. That if the contract was void for the reasons set forth in the last point, any acquiescence on the part of the officers of the borough thereafter, either by paying money or using water, could not restore its validity so as to enable the water company to enforce it, but a new contract, made by parties who could legally contract was necessary before this action could be sustained. Answer: We refuse this point, for the present, because it is embraced within the question which we propose to reserve for further consideration.17 6. That under all the evidence in the case the verdict must be for the defendant. Answer': We refuse this point.8 A question has arisen in this case to which we desire to give more careful consideration than is possible at present, and that question we shall reserve for further* consideration, reserving it upon certain facts as agreed to by counsel for plaintiff and defendant, which we will now read to you, and which will be made a part of your verdict. These facts are as follows : The offices of chief burgess and town council of the borough of Milford, from year to year, from 1875 to 1885 inclusive, have been filled by the persons named in the records of the borough, as proven in evidence. The list of subscribers to the capital stock of the water company, and of share holders, and of the officers of the water company, from year to year, for the same period, have been proven in evidence. Also that the following persons ceased to be stockholders from the dates named: .... The dates of the meetings for organization of the borough councils for the years 1876, 1878, 1879, and 1884, have been proven in evidence from the records of the borough. The resolution of the council of April 7, 1875, offering to pay for a supply of water, the proposition of the water company, and its acceptance by the borough council have been proven in evidence. The resolution of the council relating to the supply of water, and the compensation to be paid; the resolutions directing payment to the water company from time to time, of certain sums for water rent; directing payment for expenses of putting in hydrants, and of the expenses connected with the supply and use of the water, have been proven in evidence, showing the dates of such resolutions, and who was present at the meetings of the town council when they were adopted; that the water tax was levied and collected for ten years, including the years 1884 and 1885, and was paid to the water company for eight years. Notices were served upon the water company in pursuance of resolution of the town council of July, 1877, May, 1879, and April, 1880, requiring the water company to furnish a supply of water at certain points named. Water was not furnished in pursuance of such notices. As to all the above matters no controversy exists, and upon the agreement of counsel we reserve upon the facts above stated, the question whether the contract which is asserted as the basis of this action was a valid existing contract by which the water company was required to supply, and the borough to pay for the use of water for the year from April 1,1884, to April 1,1885. This question, involving the question whether the alleged contract was void as against public policy, or as in contravention of the act of March 31, 1860, § 66, and whether the same has been subsequently ratified, or in any way rendered valid or invalid, is reserved, with power to the court to enter judgment, non obstante veredicto, if, upon consideration of the facts above referred to, it shall be of opinion that no valid contract existed requiring the defendant to pay for the use of the water for the period mentioned. You will thus see that the matter to be submitted to you is relieved of all difficulty, and this mass of evidence, which perhaps seemed very confusing, at the time, is to a very large extent brushed awa3r. [You have a contract by which the water company agreed to supply water for the use of the borough, for certain purposes, for which the borough agreed to pay the sum of $300 annually. The contract was not in all respects complied with by the water company, but there have been no steps taken by the borough toward the rescission of this contract up to and during the years 1884 and 1885, so far as the evidence shows. The borough accepted the use of the water, and enjoyed the benefits of the contract. And we say to you as a matter of law, under these circumstances, that the water company is entitled to recover the sum of $300 with interest from April 1, 1885.] 9 The question of the validity of the contraed itself, which has been considered hero, is one that we will hereafter consider, and we reserve the right to enter judgment for the defendant, notwithstanding the verdict which you will render in favor of the plaintiff. The jury returned a verdict for the plaintiff for an amount which did not appear in the paper books, the question of the validity of the contract upon which recovery was sought being reserved. On November 8, 1888, the court, Seely, P. J., filed the opinion following: When, in 1875, and January, 1876, the alleged agreement between these parties was made, by which upon distinctly stated terms the plaintiff was to furnish for a period of ten years, a supply of water for the purposes of said borough, and tiie defendant was to pay therefor the sum of three hundred dollars per year, the chief burgess of the borough of Milford and two of the councilmen were officers and another of the councilmen was a stockholder of the Milford Water Company, leaving only two members of the borough council who were not interested in said water company. The act of March 31, 1860, § 66, P. L. 400, prescribes that no member of any corporation or public institution, or any officer or agent thereof shall be in any wise interested in any contract for the sale or furnishing of any supplies or materials to be furnished to or for the use of any corporation, municipality or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly nor indirectly interested therein, under penalty of forfeiting his office, and being held guilty oí a misdemeanor. By the special verdict and judgment under which the question was reserved it appears, that for_the year beginning in April, 1876, the chief burgess and one councilman were managers and two councilmen were stockholders of the water company. For the year 1877, the chief burgess and one of the councilmen of the borough were stockholders of the water company. For the year 1878, the chief burgess and one councilman were managers, and one councilman was a stockholder in the water company. For the year 1879, one councilman was a manager and another was a stockholder of the water company. For the years 1880 and 1881, no officer or stockholder of the water company appears to have been connected with the borough council. For the year 1882, the chief burgess and one of the councilmen were officers of the water company. For the year 1883, one of the councilmen was a stockholder in the water company. For the years 1884 and 1885, no member of the borough council was in any way interested in the water company, until March 2, 1885, when a stockholder in the water company was appointed to fill a vacancy occasioned by the resignation of one of the councilmen. During this entire period of time the alleged contract was recognized and treated as a valid contract between the parties. The borough received a supply of water from the water company, levied and collected a tax to cover the consideration of the contract every year, and paid it to the water company every year until this last year for which suit was brought. The borough from time to time adopted resolutions requiring the water company to extend their mains in accordance with the terms of this contract as the borough construed it, and notified the water company of such requirements, and this in 1877 and 1879, when but two members of the council were in any way connected with the water company, and in 1880, when no member of the council was so interested. It is argued that this contract was against public policy and therefore absolutely void, so that it could in no way be ratified or made valid. We do not think that such a contract would be void because one or two members of the borough council were also interested in the water company, but when as in the jmar 1875, a majority of the borough council was composed of managers and stockholders of the water company, we think public policy as declared by the act of March 31, 1860, forbade them to enter into this contract. But in what respect was the contract against public policy ? Not by reason of anything in the subject matter of the contract or of any of its terms or provisions. Nothing forbade that this water company and borough should contract with each other for just the purposes and upon the same terms as set forth in the resolutions to which they gave their assent. The vice of the transaction is found in the relation which the contracting parties sustained to each other; .that 'the water company possessed a controlling voice in the borough council at the time the agreement was entered into. The case is by no means like that of Mitchell v. Smith, 1 Binn. 110, where the thing agreed to was and must always remain unlawful. It is more nearly analogous to that of Commonwealth v. Commissioners, 2 S. & R. 198, yet differs from that in some material respects. That was an agreement for a purchase of chairs, beginning and ending in a single transaction. This was a continuing contract for services to be rendered and paid for from year to year for a period of ten years. That agreement was never recognized after the fatal objection was removed. The court held in that case that the property in the chairs had never passed from the original owner. If the commissioners had insisted upon retaining the chairs after Taylor had ceased to hold office as commissioner, had asserted in behalf of the county the ownership of the property and refused to deliver up possession until the property had been destroyed or so damaged as to become worthless, a very different question would have been presented. In the present case, the agreement was asserted by both parties for a period of nine years, including the year for which recovery is sought, recognized and asserted, and the benefits of it enjoyed by both parties when the objection arising out of the relation to the parties had ceased to exist; and, whether we call it ratification of the old contract or an adoption of it, the invigorating of a flickering, uncertain life before existing, or the imparting of vitality to that which before possessed none, both the parties having insisted upon this agreement, and each having continued, when no legal objection to their contracting existed, to assert this agreement against the other, and each to require of the other compliance with it according to its terms, the borough cannot now excuse itself from paying for benefits actually received in the years 1884-5, by reason of the fault which existed in 1875-6, when the terms of the agreement first received the assent of the parties. If these parties could at any time enter into a new contract upon the precise terms of the old, we fail to perceive why they could not adopt the old contract as expressive of the mutual obligations by which they would be governed; and, when the borough council by resolution regularly passed, and communicated to the water company, required that company to do certain things, because stipulated in that contract, and continued to attach hydrants to the mains of the water company, it was the highest possible expression of their recognition and adoption of the terms of this agreement. Now, November 8,1888, we determine the reserved question in favor of the plaintiff, and direct that judgment be entered in their favor against the defendant, upon the verdict of the jury- Judgment having been entered, the defendant borough took this writ, assigning as error : 1-8. The answers to the plaintiff’s points.110 3 4-8. The answers to the defendant’s points.4 t0 8 9. The part of the charge embraced in [ ] 9 10. The order directing judgment for the plaintiff on the point reserved.
124 Pa. 624Delaware R. v. Amity Coal Co. (1889)
prom the decree op the court op common pleas op LACKAWANNA COUNTY. No. 179 January Term 1889, Sup. Ct.; court below, levari facias No. 29 October Term 1885, C. P. On October 8, 1885, tbe proceeds oí the sale of the property of the Amity Coal Co., Limited, at the suit of the Delaware, Lackawanna & Western Railroad. Company, being paid into court, Mr. J. TL Torrey was appointed auditor to report a distribution thereof to and among the creditors entitled. At the hearing before the auditor a contention arose between William L. Watson, trustee for bondholders under a mortgage of the coal company dated December 26, 1884, subsequent to that upon which the property was sold, on the one hand, and, on the other, two mechanics’ lien creditors, to wit: A. Ryman & Sons, claiming $3,985.68, sur lien filed June 9, 1885, and Harman & Uassert, claiming $3,339.83, snr lien filed June 15, 1885. The facts are shown in Mr. Torrey’s report as auditor, filed on December 7, 1887, which, so far as material to the present case, and that of Ryman’s Appeal, immediately following, was as follows: A. Ryman & Sons’ Claim. The contention between this and the two following liens on the one hand and the trustee of the second mortgage on the other, constitutes the only serious issue in this ease. The facts out of which the contention arises will now be stated: The Amity Coal Company, Limited, was organized under the provisions of the act of June 2,1874, by articles recorded June 20, 1883. They at once leased certain coal lands in Lackawanna township and commenced to sink a shaft and build a breaker. A contract was made with A. B. Tyrrell for the erection of the breaker, according to plans prepared in the office of the Pittston Engine and Machine Co. Under his contract Tyrrell was to build the breaker for thirteen dollars per thousand feet of all lumber which should be used, the company furnishing all materials. Arrangements were made by S. N. S teller, the chairman, and E. L. Fuller, the secretary and treasurer of the Amity Coal Company with the firm of A. Iiyman & Sons, lumber dealers of Wilkes-Barre, to furnish the lumber required for the breaker, as it-should be needed, at the rate of fourteen dollars per thousand feet for hemlock, delivered upon the ground. The orders for the lumber were sometimes received from officers of the company and sometimes from Mr. Tyrrell. The first lumber was shipped August 7, 1883, and the shipments continued from time to time until December 12, 1884. The aggregate amount of the lumber bills of Ilyman & Sons was $21,543.57, which includes some items of discount, etc., which are not proper subjects of lien. They acknowledge to have been paid $17,582.89, leaving their claim $3,960.68. All of the lumber which went into the breaker building was furnished on the credit of the building. & % $ ifc & * * That which was recognized as the most critical question in regard to this lien and to which the great bulk of the testimony was directed, remains to be considered, viz.: Was it filed in time ? The claim was filed June 9, 1885. Only two items of the bill of particulars were furnished within six months before that date, to-wit: December 12, 1884, 10,400 ft., 1 in. x 12 in., 16 ft. hemlock, $145.60, and the following item amounting to $195.81, charged under date of June 6, 1885, and covering a large number of pieces of hemlock timbers. From the testimony of Tyrrell, Lutz and Fuller, it appears that the last item is made up of timbers which were furnished from time to time up to December, 1884, were condemned, replaced by A. Ryman & Sons, and were finally used by the company in the progress of the work, mainly in the construction of the dirt plane and extensions of the culm dump, part of it being used as late as February or March, 1885. So far as it was used by Tyrrell before he left, it is improperly charged as of a date in 1885, as Tyrrell left in November, 1884. So far as it was used in the subsequent constructions testified to by Lutz and Fuller, its value for the purpose of extending the time for filing the lien depends upon the question whether those constructions were or were not essential to the completion of the breaker, which question will be hereafter considered. The item of December 12, 1884, was a car load of hemlock boards which were used in boarding up an archway between the shaft tower and the breaker building. This item was furnished and used within six months before the lien was filed, and is sufficient to carry back the lien of the whole account to the date of the commencement of the breaker building, if that boarding up of tbe arebway was a part of the original construction' of the breaker, as claimed by the lien creditors. If, however, as is claimed by opposing creditors, that work was in the nature of an addition, alteration or repair to the building, the lien was filed too late. The Amity breaker was commenced about June, 1883. It was so far completed about September 20,1884, that work was begun in it at that time aud prosecuted without interruption thereafter. Mr. Tyrrell, the contractor, at that time removed his poles, ropes and scaffolding, but continued to do some work, by day’s work, until November 21, 1884, when he finally left. No further work of an original character was done from that time till about December 20th. By instruction of the owners the space, about thirty feet wide, between the shaft tower and the breaker building, was left uninclosed for a distance of about eighteen feet from the ground. The shaft tower itself was also left uninclosed for about the same height on the breaker side. This was done deliberately, and was at the time intended to be permanent,, the said space being unused except as a means of access to the shaft and a passageway under the breaker. A great deal of water percolated through the soil and rocks into the shaft, but occasioned no serious difficulty during warm weather. The ventilation of the mine vras supplied bjr a downcast of air into the shaft. When the severe cold of winter began to be felt, a great deal of trouble was experienced from the freezing of water in the guides of the shaft carriage during the night, thereby causing it to bind and stick to such an extent as to interfere with the hoisting of coal. The first expedient resorted to for obviating this difficulty, was to line the shaft with timbers so placed that the water would run down between the walls and the lining. This proved to be insufficient. A fire in a stove or grate was then placed upon the carriage, which was lowered part way down the shaft during the night. The evil being still unabated, the shaft on the breaker side and the open archway spoken of were boarded down to tbe ground and two stoves placed inside near the opening of the shaft. The expert testimony developes a diversity of opinion as to whether the boarding up of this archway constituted a necessary part of the breaker structure, or whether it was iu the nature of an addition, alteration or improvement. The admission that the projection of the down-cast into the shaft is a necessary part of the original construction of the breaker, would not, of itself, involve the admission that this particular device was so necessary. Nearly all the witnesses testify that many devices are resorted to for this purpose, and that it is very difficult to entirely avoid trouble from the freezing of water in a shaft with a down-cast of air and a large amount of water. E. J. Evans says that the evil is not yet entirely removed at the Amity mine, and Mr. Storrs says that it is sometimes necessary to change the plan of ventilation so as to make an up-cast in the hoisting shaft. When the question is, as in this case, whether two portions of a structure which have been successively erected, with an intervening period of time, are but parts of one building, or whether the second is an addition to or alteration of the first, the crucial test adopted by the courts is the original design or intention of the parties. The length of the intervening period is of little, if any, importance. That the erection of some portion of the building, as originally designed, is delayed for a considerable period after the rest of the building is completed and put in use, makes it no less an essential part of the building. That something not originally designed as part of the building is found to be necessary and is supplied almost immediately after the building, as planned, is completed, makes it no less an addition. The opinion of expert witnesses as to the necessity for certain appliances is not a safe guide in the determination of the question whether a building is completed. Were it accepted as a guide, new and rapidly growing industries, such as electrical plants, could never be considered completed. Every new discovery in the art leads to the adoption of new and improved appliances, which, when adopted, are rightly regarded as necessary and essential to the structure. And even in old and familiar industries, unexpected and unanticipated exigencies are constantly arising, which require new and improved methods, which, when adopted, seem to be and actually are as necessary as any of those which were originally planned. ■ An unskillful designer may plan a building which would seem to an expert an abortion, to adopt the phrase of one of the witnesses, yet, when finished according to the plan, it is as much a completed building as if it were perfect in all its appointments. And if, after a few weeks or months of unsuccessful experiment the requisite changes are made, they are not the less alterations or repairs, because they ought to have been anticipated and included in the original design : Thoma & Blandy’s Estate, 76 Pa. 30. These principles are so patent that several of the witnesses in this case answer questions whether or not the Amity breaker was completed before certain appliances were provided, in the Yankee fashion, by asking whether those appliances were contemplated in the original plan. The cases are full of illustrations of the application of this test. In Diller v. Burger, 68 Pa. 432, Burger began building a brewery in March, 1866, and finished it in March, 1867. It was found after it was put in operation that the hot water ran down into the cellar and increased the temperature to such a degree as to sour the beer there stored, in consequence of which he was obliged to, and did in 1868, erect another connecting building. Diller furnished the machinery for both buildings and filed a lien therefor. In a contention between Diller and a creditor, whose judgment was entered after the commencement and before the completion of the first building, the issue was determined against the lien. In its ansrver to the plaintiff’s second point the court below said: “ If the jury should consider the two buildings as constituting one, and both buildings were originally designed and intended to be one building when the first building was erected, then we answer this point in the affirmative. But if the second building was erected after the first building was erected, and was a building not designed to be erected when the first building was erected, and the lien was not filed within six months from the completion of the first building, then we answer this point in the negative.” And in the general charge, “If.....when the first building was erected, it was designed and intended that the additional building was to be part of it.....then the plaintiff was in time in filing his claim.” These portions of the charge were assigned as error and affirmed by the Supreme Court in an opinion in which the case is made to turn on the fact that “ the addition was a new building, the result of a new plan, and a new undertaking.” Hofer’s Appeal, 116 Pa. 360, presents the converse aspect of the same principles. There the latter construction was held to be a part of the building, though months had elapsed since the completion of the remainder, because it was a part of the original plan and intention of the builder. See also on-the same point: Norris’s App., 80 Pa. 122; Parrish’s App., 83 Pa. Ill; Yearsley v. Flanigen, 22 Pa. 489; Holden v. Winslow, 18 Pa. 162. The application of this test to the case in hand seems to the auditor fatal to the mechanic’s claim. % St? ^ ¿t? 3? The auditor therefore finds as a fact that at the time the breaker was built it was not the intention to board up tins archway ; but it was the intention to leave it permanently open. And he finds as matter of fact that the breaker was completed more than six months before the lien in this case was filed. Some time in February or March, 1885, a chute was put in the breaker to convey buckwheat coal from the screens to the fire room of the boiler house, and about the same time an extension of the trestling of the dirt plane was made. It can hardly be contended that either of these erections constituted a part of the breaker as originally designed. Counsel for A. Ryman & Sons in their brief of argument state that, according to their theory of the case, the breaker was completed about December 20, 1884. The auditor finds as matter of fact that the chute for buckwheat coal was a mere repair of or substitute for a chute of the same kind and designed for the same purpose in the original erection, but which use had demonstrated to be inadequate. The extension of the trestling was also an addition or repair in no respect an essential part of the original breaker structure, if, indeed, it were a part of it at all. The auditor finds as matter of law that the lien of Ryman & Sons was filed too late to constitute a lien from the date of the commencement of the building. Harman & Hassert’s Claim. Harman & Hassert filed their claim June 15, 1885. It was for mine cars and iron work used in and about the breaker and the mine. The items were delivered from time to time from April 21, 1884, till March 9, 1885. The mine cars were ordered by Mr. Stetler with the understanding that they should be delivered from time to time as they were needed. It was estimated that there would be required from 150 to 200: 116 were delivered ; 60 of them, or more than one half, were delivered after work began in September, 1884. As the mine extended, more ears were required, and, if the Amity company had continued to operate this mine, it seems probable that additional cars would have been needed and furnished under the same contract as the work extended, perhaps up to the present time. It has been decided that mine cars are fixtures under the act of 1858, and it was proper to file a claim for them; but it can hardly be contended that the time of the completion of the breaker is to be postponed until all mine cars that may ultimately be needed shall have been supplied. The rails which are laid in the mines are also fixtures; but, until the mines are entirely worked out, new rails are constantly needed in the extension of the workings. It would seem preposterous to claim that the time of the completion of the works for the purposes of the lien law was to be fixed by the date of the last shipment of rails. The auditor finds that the claim of Harman & Hassert was filed too late, the breaker having been completed more than six months before it was filed. * * * * * * * -* As required by court rule VI., § 4, the auditor served upon the counsel notice of the conclusion of the hearing which is hereto attached. Within four days after the service of said notice, to wit, on October 18, 1887, there was presented to the auditor the written request of A. Ryman & Sons for an issue under the 87th section of the act of June 16, 1886, together with the affidavit of T. F. Ryman particularly stating the facts which they dispute. The said request and affidavit are annexed to this report. The auditor then reported a distribution excluding the mechanics’ lien creditors from the fund and applying the balance after paying certain prior and undisputed claims to William L. Watson, trustee, etc. Attached to the report as filed was the request for an issue made on behalf of A. Ryman & Sons, verified by affidavit and setting forth the material facts alleged to be in dispute and that the issues for which a trial by jury were demanded were as follows: 1. Whether the portion of the breaker finished in December, 1884, was a constituent part of the structure. 2. Whether the lumber received from A. Ryman & Sons in December, 1884, was used in said breaker. 3. Whether the payments received by A. Ryman & Sons have not been applied by them first upon or to the other buildings, not the subject of the lien, and the balance on account of lumber furnished for and used in the construction of the breaker. 4. Whether a balance is still due A. Ryman & Sons for lumber furnished by them under their contract with the Amity Coal Company, Limited, and if so, how much. 5. Whether the notes of defendants accepted by said A. Ryman & Sons, extinguished the lien or discharged the debt. The report of the auditor with the accompanying testimony and exhibits being filed, Harman & Hassert filed various exceptions, inter alia: 1. The learned auditor erred in finding “ that the claim of Harman & Hassert was filed too late, the breaker having been completed more than six months before it was filed.” A. Ryman & Sons also filed various exceptions to the findings of fact of the auditor, and inter alia: 9. In finding as matter of law that the lien of A. Ryman & Sons was filed too late to constitute a lien from the date of the commencement of the building. Said exceptions having been argued, the court, Connolly, J., on December 3, 1888, filed an opinion as follows: This case comes before us upon exceptions to the report of the auditor to distribute the funds arising from the sheriff’s sale of real estate of the defendant company. We have devoted a great deal of time in examining the cáse, and after a very careful consideration of all the points and questions involved, we cannot find where we materially disagree with the learned auditor, either in his findings of fact or of law. The admirable report of the learned auditor relieves us of a great deal of labor in disposing of this case. The report has been prepared with a great deal of labor, and it is so clear and orderly that it relieves us from recounting either the facts or the law. There remains one other question, however. Ryman & Sons and Dale & Co., before the report was filed, presented a written request to the auditor for an issue. The facts demanded to be tried before a jury in their demand for an issue are identically the same as those contended before the auditor. If this is a matter of discretion, and 1 am of the opinion that it is, then I deny the issue for the reason that these claimants have had their day in court before the auditor, where witness after witness was called and voluminous testimony taken pin and con. in reference to the very matter asked for by them to be tried before a jury in their demand for an issue. For this reason, I repeat, I refuse to grant an issue. And now, to wit, December 3,1888, the demand for an issue is refused, the exceptions filed on the part of Dale & Co., Ryman & Sons and Harman & Hassert, to the report of the auditor are dismissed, and the report of the auditor is confirmed finally. Thereupon Harman & Hassert took this appeal, assigning as error the order of the court dismissing their several exceptions and confirming the report of the auditor.
124 Pa. 635Delaware R. v. Amity Coal Co. (1889)
FROM THE DECREE OF THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY. No. 219 January Term 1889, Sup. Ct.; court below, levari facias No. 29 October Term 1885, C. P. Tbe facts of this case, tbe report of Mr. J. 3. Torrey, auditor, the exceptions filed, the request for an issue on the part of A. Ryman & Sons, and the opinion and decree of the court below, fully appear in the report of Harman’s Appeal, ante, 624. The opinion and the decree of the court below being filed, A. Ryman & Sons took this appeal assigning as error, specially: 1. The order of the court dismissing their several exceptions and confirming the report of tbe auditor. 2. The refusal of their application for an issue.
124 Pa. 640Appeal of Thomas (1889)
FROM THE DECREE OF THE ORPHANS’ COURT OF LACKAWANNA COUNTY. No. 180, January Term 1889, Sup. Ct.; court below No. ......... 1885, O. C. On November 14, 1885, Mrs. Ann Thomas presented her petition setting forth that she was the widow of William 11. Thomas, deceased, and praying for a partition of certain real estate, a tract of land in Spring Brook township, between herself and the eight children of said deceased. An inquest was awarded as prayed for and notice given. Thereupon Richard Thomas and others, children of the decedent by a former wife, came into court and, representing that tbe petitioner was not the lawful wife of William R. Thomas, but was tbe lawful wife of David Jones, who was living after the death of said William R. Thomas, prayed that the partition proceedings be quashed. On February 18, 1886, the court appointed Mr. W. W. Lathrope, a commissioner, with tbe powers of an examiner and master, to take testimony and report upon tbe subject. Tbe commissioner subsequently filed a report, finding as facts, that the petitioner’s maiden name was Ann Lloyd, a daughter of Griffith Lloyd, and she was married to David J ones at Llaneatog, Wales, in 1838; that she and her said husband were living at one time at Abordare, Wales, and thence removed to a farm, two miles distant, called tbe Falda, where they were living in 1863 ; that they separated in 1864; that in 1872 the petitioner left Wales and came to America, and on January 16, 1875, was married to William R. Thomas; that at the time of the latter marriage the petitioner’s first husband was still alive, but “ it would seem that the petitioner did not know at this time whether her first husband was alive or not; she made little effort, if any, to ascertain; ” that the petitioner had not obtained a divorce from her first husband; and that David Jones was seen alive on May 10, 1888, and so far as evidence showed, he had not after that been seen or heard of. Upon these facts, the commissioner, citing and considering Kenley v. Kenley, 2 Y. 207; Heffner v. Heffner, 23 Pa. 104; Cropsey v. McKinney, 30 Barb. 47; White v. Low, 1 Redf. 376; Kelly v. Drew, 12 Allen 107; Williams’s Est., 8 W. N. 310, found as matter of law that whether the petitioner knew that David Jones was living when she married William R. Thomas, or not, the marriage to William R. Thomas was absolutely null and void, and reported his opinion that the petitioner was not entitled to the partition prayed for and that her prayer should be dismissed. To the findings of fact and law of the commissioner the petitioner filed various exceptions. Said exceptions having been argued, the court, Hand, P. J., filed the following opinion and decree: This question comes before us on the report of the commissioner appointed with the power of a master and examiner, and exceptions thereto. . The sole question is whether the marriage of Ann Thomas to William R. Thomas was a legal and valid marriage. After a careful examination of the testimony and the law, we are unable to reach the conclusions arrived at by the learned commissioner. We are further satisfied that, acting as a chancellor, the conscience of the court must necessarily be informed upon the point in controversy by the aid of a jury. We therefore direct an issue to be framed in the name of Ann Thomas as plaintiff and the contestants as defendants, to be tried in the following manner: The plaintiff, Ann Thomas, shall simply put in evidence the certificate of her marriage issued by Benjamin Jay, alderman, JrM then the affirmative of the issue sin^Ua». upon'TTie^efei^^J^Pwith the burden of proof to showfnat Am^jRio’mas was not the lawful wife of William R. Thomas, the decedent, at the time of his death, the plaintiff affirming that she was the lawful wife of William R. Thomas, and the defendants affirming that she was not his lawful wife. We set aside the conclusions of the learned commissioner and direct that the costs of this proceeding thus far be paid out of the estate of the decedent. On November 28,1887, a certificate from the Court of Common Pleas having previously been filed showing that the issue as directed had been tried in that court, resulting in a verdict and judgment for the plaintiff therein: see Thomas v. Thomas, following this case, an alias inquest was awarded, and the cause afterward so proceeded in that on September 26, 1888, a decree was made that the premises described in the petition be sold at public sale. Thereupon the exceptants took this appeal and assigned that the court erred: 1. In overruling the conclusion of the commissioner and master, that the petitioner was not entitled to a partition of the real estate of the decedent. 2. In awarding an issue to be tried in the Common Pleas, because there was no fact in dispute warranting a trial by jury. 3. In ordering partition of the decedent’s real estate.
124 Pa. 646Thomas v. Thomas (1889)
ERROR TO THE COURT OE COMMON PLEAS OE LACKAWANNA COUNTY. No. 297 January Term 1889, Sup. Ct.; court below, No 295 June Term 1887, C. P. On May 4,1887, the issue directed as noted in the report of Thomas’s Appeal, ante, 640, wherein Ann Thomas was plaintiff, and Richard Thomas and others, children and heirs at law of William R. Thomas, deceased, were defendants, came on for trial before the court of Common Pleas. The testimony submitted disclosed the facts which, in so far as they do not appear in the abstract of the commissioner’s report, ante, 640, are indicated in the charge to the jury, Hand, P. J., which was as follows: This is an issue to determine whether the plaintiff in this case, called Ann Thomas, was the legal wife of William R. Thomas at the time of his death; in other words, whether after his death, she was Ms widow. The question arose in the Orphans’ Court in connection with the distribution of the property of William JR. Thomas, in which the court had to decide whether this plaintiff was his widow or not. As the law permits, in order to aid the conscience of the court, we directed an issue to be tried in the Court of Common Pleas before twelve men, to determine this fact. Y ou are aware that questions of fact are looked upon by the law as best considered by twelve judicious men, acquainted with the affairs of common life, and of good judgment, selected from the county, who, hearing the testimony and passing upon it, are supposed to be able to judge of the facts, and come to a proper conclusion as to what is the truth under the testimony. In view of this, we have sought the aid of a jury to determine this question: Whether this plaintiff was the widow of William E. Idiomas ; in other words, whether she was his lawful wife at the time he died. If she was his lawful wife, then your verdict should be for the plaintiff; if she was not his lawful wife, under the evidence, then your verdict should be for the defendants. The plaintiff has shown that she was married to William E. Thomas on January 16, 1875, by a justice of the peace named Benjamin Jay, who gave a certificate of marriage to them. This certificate, this evidence, raises the presumption of a legal marriage, and at the outset of this case, it is to be presumed that she was the legal wife of William E. Thomas, unless there is enough evidence in the case to counteract that presumption. It is claimed by the defendants, that at the time she contracted tMs marriage, she had a husband still living, by the name of David Jones, in Wales. Now, this raises two questions of fact. First: Have the defendants proved to your satisfaction that the David Jones she married forty-nine years ago, and was proved to be living some four years ago, the two persons, if I may use the expression, were the same person ? You will recollect that one of the witnesses testified that she saw this woman and David Jones living together, and she afterwards saw David Jones twenty-one years afterwards, or four years ago, sitting by the roadside. She gives you to understand that it was the same person; she was fourteen years old or thereabouts when she first saw David Jones, the husband of this woman; she didn’t see him again for twenty-one years, and then she says she saw him sitting by the roadside. There are other witnesses who testified they saw David Jones in Wales at other times. I do not propose to go into the evidence, because it has been ably argued on both sides, and I prefer that you should look at the case from the evidence itself. The question of identity, which is that which determines that the same person is existing at two different times, is a very troublesome question, and it is a question, it is proper for us to say, in regard to which witnesses may be mistaken. We do not say this now to control you, but simply to give you that sense of care in examining this case which it requires. It is an important case, because if this plaintiff did marry when she had a husband living, or when she had reason to suppose she had a husband living, then she has been guilty of a crime, under the laws of the commonwealth. You will see that it is an important question, and of course the evidence should be looked at, and scanned, and weighed, with the utmost care on the part of the jury. You will bear in mind that it is possible that witnesses testifying to seeing the same person at two different times, a long distance apart, may be mistaken; even if they are of the same name, they may be mistaken as to their being the same person. I call your attention to this once for all, so that in examining and considering the testimony of the witnesses you may satisfy yourself as to whether they do give you sufficient circumstances, so that you can determine that they are testifying in regard to the same person at two different times. It is in evidence, I think clearly established, I do not think there is any doubt about that, that this plaintiff was married to David Jones ; I do not think you will have any doubt in regard to that, she does not deny it herself; she says she was married forty-nine years ago to David Jones ; that she had fourteen children by him, which is possible within twenty years even without twins ; she gives you the names of eleven that she had. She says, on her side, that he left her at a certain time ; that he disappeared in 1863, and that for fourteen years after that she heard nothing from him, knew nothing of him. If you come to the conclusion that he was living, that the David Jones she married forty-nine years ago was alive at the time she contracted the second marriage in 1875, then that raises the next question. If you come to the conclusion that he was not living in 1875, that ends the defendants’ case, because, if he was not living at the time she contracted the second marriage in 1875, she had the right to contract that marriage beyond a question, and it was a legal and a valid marriage. But if you come to the conclusion, after weighing all the testimony, taking into consideration that witnesses may be mistaken, that they testified to what they did see and know, and were correct in their observation, and that they did see this same Mr. Jones, after she had contracted the second marriage, in life, then the question arises : Did Ann Jones, in 1875, when she contracted the marriage with William R. Thomas, did she contract it in good faith, under circumstances in which she had the right to believe that David Jones was dead ? The rule of law with regard to that is this : that when a man is absent from bis home for a period of seven years, unheard from, under circumstances from which it would be presumed that he would be heard from if living, and remains away unheard from for a period of seven years, the law raises a presumption of his death. It is supposed that a man who has a family, has a wife and has children, and goes away, will, before the period of seven years has transpired, either communicate with them or let himself be known, in some way, to be in existence. And if he does not, from various reasons which you can think of yourselves — the fact that he has a wife, the fact that he has children, the fact that he has a home — the law presumes that he will in some way correspond with his family, and let it be known that he is alive. If he does not, and remains away for a period of seven years, under circumstances from which, if alive, he would be presumed to communicate with his family, and is not heard from, the law raises a presumption that he is dead. These circumstances are all for you under all the facts of this case. He left her, if you believe the testimony, in 1868 ; she left and (¡ame to this country in 1878. She testifies that for fourteen years she did not hear that her husband was living ; she testifies that she believed, at the time she contracted this marriage, that he was not living. [Now, under all the circumstances of the case, had she the right to presume, when she married William R. Thomas, that her husband was dead under the law ? If she had, then her marriage was legal, and so far as this case is concerned, she is entitled to her civil rights as the widow of William R. Thomas, and should not be deprived of them.]1 We think this is enough to say with regard to this part of the case. We have been asked to charge you upon several points by counsel on both sides, and we will take them up, and we will repeat part of what we have already stated. The defendants ask us to charge the jury: 1. The plaintiff has' not submitted sufficient evidence to raise a presumption of the death of David Jones. Answer: We do not affirm this point; we leave that as a question of fact for you: whether David Jones left his wife and his family; whether he was unheard from for seven years and over; whether the circumstances were such as raise the presumption that if he was alive they would have heard from him. If you find that he did leave his family, and was unheard from, under these circumstances, for the period of seven years, then there would be a presumption raised of his death. 2. If the jury believe that David Jones was in full life after the marriage of Ann Jones to Mr. Thomas, the marriage was void, and the verdict should be for the defendants. Answer : We affirm this, unless you find from the evidence, that he was absent for a period of seven years, unheard from, under circumstances which raise the presumption of his death, as we have already charged you.8 3. A presumption of death, if proved, may be rebutted by evidence showing that the man was in full life during or after the period of seven years. Answer: As a general proposition this is correct, and we affirm it; but if the presumption has arisen as to the wife’s subsequent marriage, that he was dead, she is not deprived of her civil rights thereby.3 The counsel for the plaintiff have asked us to charge you as follows: 1. That if the jury believe from the evidence that a formal ceremonial marriage was solemnized by B. Jay, alderman of the city of Scranton, between the petitioner, Ann Thomas, and William R. ’Thomas on January 16, 1875, the law presumes that it was a valid marriage, and the burden of proving its invalidity on account of the David J ones matter is upon the contestants who attack it. Answer: We affirm this point. 2. That the law presumes that said marriage was contracted in good faith and innocently on the part of the petitioner, and that presumption stands in favor of the plaintiff until it is shown by the contestants that at the time of this solemnization of said marriage the petitioner knew or had good reason to believe that Jones was yet alive then, or had known or had reason to know that fact within a period of seven years' last prior to that date. Answer: We answer that in the affirmative.4 3. That the fact of a man’s being absent and unheard of from his family for seven years previous to January 16, 1875, raises the presumption of his death; and if petitioner in good faith married Thomas, acting on said presumption, the law protects her, and her marriage is considered valid in law, and this is not defeated by showing the mere fact of Jones being alive at the date of said marriage, nor even her discovery of Jones being alive long after the death of ’Thomas. Answer: We affirm this with the qualification, that the circumstances existing at the time when he leaves are such, that if living, it would be presumed that he would be heard from. Simple absence of itself alone is not sufficient, but absence xinder circumstances which raise a presumption that, if living, he would be heard from; and one of these circumstances may be that a man has a wife and a large family of children with whom he has lived, and that for a long number of years, as proved in this case. 6. Proof of a former marriage to invalidate a marriage legal in form and perfectly proven must be positive, direct proof of such former marriage; and continued absence from home as shown in this case, absence of Jones from Falda for over seven years, if you believe plaintiff and her witnesses, raised a presumption of his death which of itself would sustain the marriage to William R. Thomas. Answer: We answer this in the affirmative, qualifying it as we have already, if he left under circumstances under which, if living, he would be supposed to be heard from.5 Now, gentlemen, take up this case and render such a verdict, as under the evidence, all the evidence in the case, you think is just and legal under the charge. If you find that she was legally married to William R. Thomas, that is, if she had no husband living at that time, or if she married William R. Thomas when her husband had been absent for a period of seven years or upwards, unheard from, under circumstances under which, under our instructions, the law raises a presumption of his death, then her marriage would be legal to William R. Thomas as far as this case is concerned. If you believe that she had a husband living when she was married, and there was no presumption of his death at all, then your verdict should be for the defendants. It comes back to the point whether she was the widow of William R. Thomas. If she was, then she is entitled to your verdict; if she was not, then the defendants should have your verdict. The jury returned a verdict in favor of the plaintiff. A rule for a new trial having been discharged, the defendants took this writ and assigned for error: 1. The part of the charge embraced in [ ]1 2, 3. The answers to the defendants’ points.8 3 4, 5. The answers to the plaintiff’s points.4 5