129 Pa.

Volume 129 — Pennsylvania State Reports

77 opinions

129 Pa. 1City of Meadville v. Dickson (1889)
ERROR TO THE COURT OE COMMON PLEAS OE CRAWEORD COUNTY. No. 472 January Term 1889, Sup. Ct.; court below, No. 109 February Term 1887, C. P. On December 8, 1886, a municipal claim was filed by tbe city, of Meadville against the property of Mary Dickson and Jane Dickson fronting on North street, for tbe proportional cost of a sewer constructed along said street. Tbe city of Meadville was originally incorporated by tbe act of February 15, 1866, P. L. 57, and its supplements, act of March 28, 1870, P. L. 585, and act of April 6, 1870, P. L. 967. It was given by its charter power to construct sewers, but no express authority to assess tbe cost of tbe same on adjoining property was conferred. The provisions of certain sections of tbe act of May 23, 1874, P. L. 230, dividing tbe cities of tbe state into three classes, having been adopted by the council, pursuant to tbe provisions of § 16, act of April 11, 1876, P. L. 25, an ordinance was approved on May 23, 1886, providing for tbe construction of a sewer along North street, and for tbe assessment of the cost thereof upon adjoining owners. Tbe sewer having been constructed, tbe sum of 161.50 was assessed against the property of Mary Dickson and Jane Dickson, and tbe same not being paid within tbe time provided by tbe ordinance, a municipal claim was filed therefor, and on January 14,1887, a scire facias thereon was issued. On February 16, 1888, tbe defendants in tbe claim obtained a rule to show cause why it should not be stricken off and tbe writ of scire facias quashed. After argument, tbe court, Henderson, P. J., filed tbe followmg opinion: Tbe claim in this case was filed to charge tbe real estate of the defendants, fronting on North street, in tbe city of Mead-ville, with tbe proportionate cost of a sewer constructed along said street of said city. Tbe sewer was construe ted under tbe pro visions of §§ 47,48,49, of tbe act of May 23,1874, and of tbe supplement of April 11, 1876, which sections had been adopted by tbe city of Mead-ville by ordinance No. 168, approved June 8, 1878, in accordanee with the provisions of the acts referred to, relating to the construction of sewers. There was no law applicable to the city of Meadville which authorized the charging of the cost of sewers constructed, against adjoining property. The defendants now ask that the lien filed be stricken off for the reason that § 16 of the act of April 11,1876, authorizing the adoption by ordinance of a whole or part of the act of May 28,1874, and its supplements, is unconstitutional, in that it is special legislation and therefore in violation of § 7, article III. of the constitution. The question raised was decided in Scranton City School Disk’s App., 113 Pa. 176, and in Reading City v. Savage, 124 Pa. 328. These cases hold that the provisions of the acts of 1874 and 1876, authorizing cities to adopt by ordinance the whole or a part of the provisions of said acts, are unconstitutional. It follows therefore that claims filed under provisions of these acts, so adopted, cannot stand. The case of Reading City v. Savage, supra, also decides that taxes charged ■ under said acts are not validated by the provisions of § 2 of the act of May 24,1887. It is therefore ordered that the lien filed in this case be stricken from the record and that all proceedings thereon be quashed. The plaintiff then took this writ specifying that the court erred in the order striking off the lien and quashing the proceedings under the scire facias. 1. By the ruling of this court in the case of Reading City v. Savage, 124 Pa. 328, the act of May 23, 1874, P. L. 230, is a general law, and is binding on cities theretofore incorporated which have by ordinance adopted its provisions, pursuant to § 67 of the act. It established one rule of municipal action for future cities, and allowed existing cities to conform to this rule of action. The legislature of 1876 went one step further, and allowed existing cities'to conform, in part only, to this general rule of action. This tended toward uniformity and not diversity of action. No case has met the exact facts, but what is the objection to the provision ? It simply says to existing cities of a class, “You may avail yourself of any or all of the municipal powers and franchises herein granted, by-enacting the proper ordinance.” There is nothing negative or exclusive in the law. 2. But it is submitted that this lien may be sustained independent of the act of 1874. The city council was, by its local charter, act of April 6,1870, P. L. 967, authorized to “ survey, lay out, enact, ordain, and open such.....common sewers, culverts, and drains, as they may deem necessary.” A borough ordinance requiring a lot-owner to pay for paving and curbing opposite his lot, is reasonable and valid without special legislative authority: Greensburg Bor. v. Young, 58 Pa. 280. 3. The charter power to create the debt being granted, there can be no doubt as to the efficacy of the act of May 17, 1887, P. L. 118, to afford a remedy for its collection. This act was prior to- the act dividing cities into seven classes, and Mead-ville was then a city of the fifth class, as defined by the act of April 11, 1876. A retrospective statute giving effect to pending claims for lien is constitutional: Bolton v. Johns, 5 Pa. 145; School Directors v. Reed, 2 Pears. 187; Supervisors v. Dennis, 96 Pa. 400; Schenley v. Commonwealth, 36 Pa. 56; Waters v. Bates, 44 Pa. 473; Hinckle v. Riffert, 6 Pa. 196; Lycoming Co. v. Union Co., 15 Pa. 166. 1. The lien in this case must be sustained under the provisions of the act of April 11, 1876, or not at all. Under its charter, the city of Meadville had no authority to file a claim for lien such as in this case. Greensburg Bor. v. Young, 53 Pa. 280, is not in point. In that case it was not contended that there was any authority to file a lien, and all that was determined was, that under the power delegated to the borough, it had the right to levy a special tax and collect the same by action at law. • 2. In Reading City v. Savage, 124 Pa. 328, this court overruled part of the former decision, Reading City v. Savage, 120 Pa. 198, and sustained the lien. Ayars’s App., 122 Pa. 266, was thus supplemented, and the two cases doubtless give us what is to be the settled law on the subject of classification. The one declares the acts of 1876 and 1887 unconstitutional and void, and “ not to be sustained even in part; ” tbe other is affirmative and declares the classification of the act of May 23,1874, constitutional, and the option feature of § 57 of the act not special, but general, because it “ tends to uniformity by permitting cities with different charters to surrender them and come under the uniform provisions of the act for cities of the third class.” This applies to the city of Reading for the reason that prior to the passage of the act of 1876 it had accepted the provisions of the act of May 23,1874, in accordance with the provisions of § 57 of that act, but it does not apply to Meadville or any other city that accepted only the provisions of § 16, act of April 11, 1876. 3. The tendency and necessary result of such legislation is diversity; local, not general legislation. The provisions of the act are numerous and might well lead to as many local governments as there are provisions, or different cities to adopt them. The two cities within the limits of Crawford county are to-day examples of this vicious legislation. The provision is, that cities of the third, fourth or fifth class may adopt. The classification of the act of 1876 having been declared void, there was no fourth or fifth class, or third class, such as that act contemplated, and Meadville never was a city of the third class. But it is contended by the defendants that even though § 16, act of April 11, 1876, should be held constitutional, there is no authority for this lien. 4. Reading City v. Savage, 120 Pa. 198, in affirming the court below, necessarily decided two questions raised in that case, to-wit, the unconstitutionality of § 57, act of May 23, 1874, and the unconstitutionality of the validating act of May 24, 18,87, P. L. 204. The second case, Reading City v. Savage, 124 Pa. 328, reversed the former of these rulings, and left the latter ruling as it was first made. If the act of May 24, 1887, is unconstitutional, the act of May 17, 1887, P,. L. 117, is also unconstitutional if it means what the plaintiff claimed in this case, in that it “ authorizes the creation and extension of liens ” in one city, or at most only a few cities, contrary to the prohibition of § 7, article III. of the constitution. It attempts to validate what is invalid, simply because done under the authority of acts declared unconstitutional because they were local legislation. The legislature cannot validate what it cannot authorize in advance, or cure what does not exist: Cooley, Const. Lim., 381; Richards v. Rote, 68 Pa. 248; Menges v. Dentler, 33 Pa. 496; Halderman v. Young, 107 Pa. 324; Schenley v. Commonwealth, 36 Pa. 56. Meadville is not a city of either of the classes to which the. act was intended to apply.
129 Pa. 8Kraber v. Union Insurance (1889)
1. An agent has no legal right to sit in judgment upon the wisdom or expediency of the instructions of his principal, and his failure to execute them with reasonable promptness and fidelity will render him liable to his principal in damages. (a) An insurance company, by letter, instructed their agent having power to issue policies subject to approval, to cancel an insurance reported by him, on account of the rate at which the policy was issued, and to advise cancellation; the agent replied that “ it would be attended to," 2. The directions being in writing, their construction was for the court, and correspondence relating to prior risks taken was not admissible to relieve the agent from his neglect, where such correspondence did not establish a settled course of dealing between the parties. 3. Nor was the agent relieved from the consequences of his failure to obey the directions, by the fact that, after a fire which destroyed the insured property, and after his failure to cancel the policy came to the knowledge of the company, the latter received from the agent the premium upon the insurance.
129 Pa. 15Madore v. Horn (1889)
1. The language of a deed poll, conveying a lot of ground, to wit : “ The said piece of ground to be used for milling or manufacturing purposes only,” is not a covenant, expressed or implied, that the grantee would erect a mill of any kind upon the property. ' 2. There being no averment of fraud, accident, or mistake, in the execution and delivery of the deed, and no attempt to re-form it, the previous understanding of the parties, if there was one, was merged in the deed, and a bill to restrain the use of the lot for other purposes than those expressed will be dismissed.
129 Pa. 26Biddle v. Ahl (1889)
1. Where an opinion of the court below, in a proceeding in equity, though stating that the court was compelled to close the ease by overruling pro forma the exceptions filed, yet shows that the court did not decide the case without examination or without reaching a conclusion, the Supreme Court will give the decree full effect as disposing of the questions of fact, unless the appellant can overcome its prima facies and clearly point out its errors. 2. If an assignment of real and personal property be made to another, who agrees to hold the property and apply the income thereof to the debts of the assignor, and the assignor, at the same time, sell and convey to the assignee other property, the assignee to hold the purchase money and to apply it to the same object, the assignee is liable to account, as a trustee, for all the funds that come into his hands from the property of the assignor. 3. An account rendered by a trustee to his cestui que trust, is not affected by the general rule that where a seller renders an account to the buyer of goods sold and delivered, the buyer must object within a reasonable time, otherwise his conduct will be regarded as an admission of the items of which the account is made up; the reason for the exception being that the cestui que trust has not the means of verifying the account. 4. If an accounting trustee withhold books and sources of information, under his control, from a master appointed to state an account for the trustee who has failed to render proper accounts himself, thus rendering the master no assistance and co-operation, but delaying and hindering him, he will not be permitted to show mistakes in the master’s account by means of the books, etc., he withheld from inspection. 5. An agreement providing for the division of profits arising from the manufacture of iron at an iron works belonging to a defendant, is not without a sufficient consideration to support it, when it recites and purports to rest upon a sale of the iron works on the previous day by the plaintiff to the defendant, and a transfer of the entire plant upon the terms stated in the contract. 6. Where valuable services were rendered by a trustee, and important responsibilities borne by him for many months, and large sums of money collected and disbursed by him in the discharge of the trust, an allowance of commissions to him may not be disturbed on the ground that he mingled the trust funds with his own, and was reluctant to give the master the benefit of his books and his aid in adjusting the trust estate.
129 Pa. 49Ahl v. Harrisburg etc. R. (1889)
FROM THE DECREE OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, IN EQUITY. Nos. 53 July Term 1889 and 438 January Term 1889, Sup. Ct.; court below, No. 3 August Term 1884, C. P. in Equity. . On May 6, 1884, Q. P. Ahl filed a bill in equity against the Harrisburg & Potomac R. Co., T. W. Abl, C. W. Abl and P. A. Ahl, in substance averring: That P. A. Ahl, had contracted to build the Harrisburg & Potomac Railroad for, inter alia, $23,000 per mile, $18,000 in first mortgage bonds and $5,000 in stock. That prior to October 11,1877, he sub-let 4 miles and 942 feet between Langsdorf station and Jacksonville, upon which some work had been done, to Q. P. Ahl and T. W. Ahl, who were to receive the $18,000 first mortgage bonds and $5,000 in stock per mile. That the sub-letting was reported to the board of directors of'the railroad October 11, 1877, and was approved by it. That on May 6, 1878, the chief engineer reported to the board of directors the completion of the sub-let portion and suggested the release of contractors and the reception of the section. That this report was approved, and the board passed a resolution authorizing the Provident Life and Trust Co., of Philadelphia, trustee in the first mortgage, to certify $75,200 of first mortgage bonds, deliver the same to the treasurer of the company, to be paid over to the “ contractors,” T. W. Ahl and Q. P. Ahl, sub-contractors under P. A. Ahl, being 118,000 per mile for each mile between Langsdorf’s station and Jacksonville. That the plaintiff expended a large sum of money in this construction, but was ignorant what T. W. Ahl had invested ; he had never been able to effect a settlement with him nor to ascertain what .portion of the -bonds he was entitled to receive, under the sub-letting, in which he was a partner of T. W. AM. That he was informed and believed that P. A. Ahl received some of said bonds which passed to C. W. Ahl. That C. W. Ahl received a large portion of them, if not all, knowing that they belonged to the plaintiff and his partner, T. W. Ahl. That T. W. Ahl, individually, or as treasurer of the railroad, received a portion of them and delivered them to C. W. Ahl. The prayers of the bill were : 1. That the said partnership between plaintiff and T. W. Ahl be dissolved and an account taken and T. W. Ahl be required to pay to plaintiff the amount due him. 2. That it be determined what amount of said bonds plaintiff was entitled to receive under his partnership, and that the railroad company be required to deliver to him said portion of bonds. 8. That it be determined that Peter A. Ahl was not entitled to any of said bonds, but that they all belonged to plaintiff and T. W. Ahl, as sub-contractors. 4. That C. W. Ahl, P. A. Ahl and T. W. AM be required to make known what portion of said bonds each received, how and when received, what they did with them, and to deliver to plaintiff any now in their possession. 5. Other and further relief. The defendants filed answers denying the averments of the bill, and the right of the plaintiff to the relief prayed for. The case having been put at issue, it was referred to Mr. 0. P. Sumrich, as examiner and master, who filed a report finding for the defendants upon every issue raised by the bill, as more fully shown in the opinion of the Supreme Court. The master further found that Q. P. Ahl was induced to advance and did advance money for procuring materials and for the payment of laborers on the railroad; that tMs was advanced at the request and for the benefit of P. A. Ahl, the contractor, and had never been repaid by him, and that the plaintiff therefore had a just and equitable demand against P. A. Ahl, for $8,558.69. No averment with reference to the subject matter of this claim was made in the bill, but the master recommended a final decree in favor of plaintiff for the sum of $8,558.69 against P. A. Ahl, and the dismissal of the bill as to the other defendants. Exceptions were filed to the master’s report by Q. P. Ahl, plaintiff, and by P. A. Ahl, one of the defendants, the nature of which exceptions appears from the opinion of the court by Barnett, P. J., 41st district, specially presiding, which, after stating the pleadings proceeded: The controlling question for our decision is whether the conclusion reached by the master is right, under the pleadings and evidence; and if so, it should be sustained, even if some of the reasons given for it might be opened to objection. If the decree recommended by the learned master should be sustained in other respects, we do not understand that defendants object to the particular amount found to be owing from P. A. Ahl to the plaintiff. Nor do the plaintiff’s exceptions complain of the amount found for the plaintiff’s expenditures. That amount may be taken to be right. The partnership is denied by T. W. Ahl, in his answer to the bill and in his testimony before the master. It is sought to overcome this by the testimony of the plaintiff and by other circumstances. These other circumstances might be sufficient to establish a partnership as to third parties. But in the absence of sufficient evidence tending to show either a written or verbal agreement of partnership, any consultation between the alleged partners or joint action in regard to the completion of the road, any office books or bank accounts,- or other indicia of an intention to form a partnership between themselves, we think the finding of the learned master in this respect is fully justified by the evidence. : In regard to the purpose of the sub-letting, two views are ■presented. The one taken by the plaintiff’s counsel is, that it was for the benefit of P. A. Ahl, and tq hinder and delay his creditors. If his be the correct view, it is manifest that some, at least, of his exceptions are well taken. There is a plain distinction between an illegal contract, and one simply fraudulent as to creditors. The former, whether executory or ex-eeuted, is absolutely void. If a note or bond had been given for the commission of a crime, no recovery can be had thereon. The maker may show the nature of the contract, and because the public are interested, the law will not help the criminal to obtain his reward. If a judgment has been confessed, the defendant may have it opened to show the illegal consideration, and have it declared void. The cases of Ham v. Smith, 87 Pa. 68; National Bank v. Kirk, 90 Pa. 49, and Bredin’s App., -92 Pa. 241, are authorities for this doctrine. But if the contract be merely fraudulent as to creditors, it. is nevertheless good between the parties. Why should it hot be? Neither of them is defrauded, because both of them are fully acquainted with the subject matter and purpose of the contract, and mutually consent with full knowledge. The public is without interest in the matter, and the law will not assist either party. If the contract be executory, the law will not enforce it; if executed, it will not relieve. And yet, because the public has no interest, the law will undertake no search after concealed fraud. And if either party can present his case without revealing the fraud, he may invoke the same law as an honest litigant. The authorities for' this are numerous, and are abundantly cited in the plaintiff’s brief. The other view, taken by the master, is, that the sub-letting was for the benefit of the railroad company, in order that its road might be finished without vexatious delay. The company having doubtless learned from unpleasant experience, that the original contractor was financially unable to complete his contract, it was mutually arranged between them that it should be otherwise completed for the benefit of both. P. A. Ahl having obtained the consent of his nephews to finish his work, the company approved of the plan, and he sub-let to them his contract. And in this arrangement fraud was neither intended, nor existed, in reference to creditors. If the company agreed to relieve the contractor and accept others to perform his work for the same compensation, it is not readily perceived what fraud has been done. The property of P. A. Ahl, subject to levy and sale, could not legally be transferred to the injury of creditors; but he was not bound to labor or continue in business for their benefit. If the subcontractors were willing to take up and perform his .work in their own names, although the reason for it was that he was otherwise liable to be harassed by his creditors; if they made themselves responsible for the iron and ties, and paid the workmen, and agreed that nevertheless he should receive the stock and bonds when the work was taken off their hands; if nothing was taken or concealed from his creditors that was liable to their executions, it does not appear in what way they were defrauded. When a contract will admit of two constructions, one consistent with honesty, and the other, not, the former will be presumed. It does not clearly appear that any property of P. A. .Ahl, liable to seizure, was tranferred to the sub-contractors. It is true, he testifies that when the sub-letting was done “ the ties were on the road or secured, and 125 tons of rails on the line of the road.” But there is no evidence of any sale or transfer of this material; and the testimony of T. W. Ahl that, “ I surrendered about $7,000 of material for which I had given my obligation to creditors of P. A. & D. V. Ahl; that material was put in these four miles;” would seem to indicate that creditors had received other security in lieu of this material, and that the presumption of honesty was not overthrown by the facts. We are unable, therefore, to say that the learned master’s view of this sub-contract is not warranted by the evidence. But it seems to us not very important, in determining the rights of these litigants, whether this sub-letting was fraudulent or otherwise. We think the real foundation of the plaintiff’s claim consists in the written contract marked No. 42, and the action taken by the railroad company in their approval thereof, their acceptance of the completed work, and in their resolution to issue the bonds necessary for payment. And when these things have been put in evidence, the claim is established without exciting even a suspicion of fraud. The defence to the claim is equally legitimate. It consists in the fact that the bonds were issued and delivered to the plaintiff, and in the evidence tending to prove that he handed them over to P. A. Ahl personally, as the property of the latter, and not to the president of the company, with a request for certification. In short, the plaintiff’s claim is practically on an obligation, to which the defence is actual payment. The learned master is of ooinion that the evidence is sufficient to amount to proof that the bonds were delivered to the plaintiff, who delivered them in turn to P. A. Ahl, as the property of the latter. His 5th finding is: “ That the railroad company discharged their duty in the premises, and that the bonds were delivered by the plaintiff to P. A. Ahl, who was entitled to them as the contractor for building the road.” If the bonds were voluntarily delivered by the plaintiff to P. A. Ahl, with the intention of vesting title in the latter, it is immaterial in what capacity he received them, whether as contractor for the road, or donee of the sub-contractors. In either event, the plaintiff would be without legal claim against the railroad company, or against P. A. Ahl. After careful consideration we are unable to say that the evidence fails to support the finding of the master. If the bonds were so delivered to Peter A. Ahl as to vest title in him, it is immaterial to this investigation what became of them afterwards. Under such circumstances, C. W. Ahl incurred no liability to the plaintiff; and the question of the competency of witness as affected by his death need not be discussed. If now, the plaintiff was not a partner of T. W. Ahl, and has no title to the railroad company’s bonds, this whole contest might end here, under the pleadings and the prayers for relief. But the court has jurisdiction by reason of the subject matter set forth in the bill: Adams’s App., 113 Pa. 449. And where a court has obtained jurisdiction for one purpose, it may retain it generally for relief: Allison’s App., 77 Pa. 227, and authorities there cited. “ When once a court of equity takes cognizance of a litigation, it will dispose of every subject embraced within the circle of contest, whether the question be of remedy, or of distinct, yet connected topics of dispute. If the jurisdiction once attaches from the nature of one of the subjects of contest, it may embrace all of them, for equity abhors multiplicity of suits: ” Bell, J., in McG-owin v. Remington, 12 Pa. 63 ; Wilhelm’s App., 79 Pa. 120. Under the prayer for general relief, the plaintiff is entitled to such relief as is agreeable to the case made in the bill, though different from the specific relief prayed for: Slemmer’s App., 58 Pa. 167. We are of opinion that the learned master reached a right conclusion, and that his report should be confirmed and his decree adopted, and the same is hereby done accordingly. And now, to wit, Maxell 31,1888: The exceptions to the report of the master are hereby overruled. And it is now ordered, adjudged and decreed: That Peter A. Ahl, one of the defendants, shall pay to Q. P. Ahl, the plaintiff, the sum of $8,558.69, with interest thereon from March 13, 1888. And that he shall also pay the sum of $582.66, the costs including the master’s fee, to the several parties entitled thereto, as per the schedule in which they are taxed, attached to the master’s report. And as to the other defendants the bill is hereby dismissed. Q. P. Ahl thereupon took the appeal to No. 53 July Term 1889, specifying that the court erred in dismissing his exceptions to the master’s report. P. A. Ahl took the appeal to No. 438 January Term 1889, specifying that the court erred in dismissing his exceptions to the master’s report. 1. Q. P. Ahl was not a party to P. A. Ahl’s fraudulent intent to defeat the claims of his creditors, and he should not be prejudiced thereby: Reehling v. Byers, 94 Pa. 216; Foster v. Walton, 5 W. 378. Even if Q. P. Ahl had knowledge of the intended fraud upon creditors, the contract was good as against P. A. Ahl and could have been enforced. “ A contract, which is fraudulent as to creditors, by reason of the statute of 13th Elizabeth, is binding upon the parties themselves, and the .one may use it against the other for any purpose whatever: ” Sherk v. Endress, 3 W. & S. 255; Blystone v. Blystone, 51 Pa. 373 ; Sickman v. Lapsley, 13 S. & R. 225; Zuver v. Clark, 104 Pa. 225; Evans v. Dravo, 24 Pa. 62; Bonesteel v. Sullivan, 104 Pa. 9; Gill v. Henry, 95 Pa. 388; Bredin’s App., 92 Pa. 241; Murphy v. Hubert, 16 Pa. 50. 2. The facts charged in the bill showed that equity had jurisdiction. The bill was not demurrable nor demurred to. Thus far, Adams’s App., 113 Pa. 449, rules the case. “ When once a court of equity takes cognizance of a litigation, it will dispose of every subject embraced within the circle of contest, whether the question be of remedy, or of distinct yet connected topics of dispute. If the jurisdiction once attaches, from the nature of one of the subjects of contest, it may embrace all of them, for equity abhors multiplicity of suits: ” McGrowin v. Remington, 12 Pa. 63; Thomas v. Oakley, 18 Ves. 184; Souder’s App., 57 Pa. 498; Coleman’s App., 75 Pa. 441; Masson’s App., 70 Pa. 26; Allison’s App., 77 Pa. 221; Wilhelm’s App., 79 Pa. 120; Danzeisen’s App., 73 Pa. 65; Koch’s App., 93 Pa. 434. The false averment of an essential jurisdictional fact, does not give to a court of equity jurisdiction over all matters and disputes between a plaintiff and such persons as be may choose to make defendants: Koch’s App., 93 Pa. 434; 1 Pomeroy, Eq. J., 247; Rule 1 in note. The cases cited by the court below do not contain a single expression which justifies the decree.
129 Pa. 64Neal v. Lewisburg Nail Works (1889)
129 Pa. 74Irvin v. Curwensville Borough (1889)
129 Pa. 81Miller v. Chester Slate Co. (1889)
ERROR TO THE COURT OE COMMON PLEAS OE NORTHAMPTON COUNTY. No. 63 July Term 1888, Sup. Ct.; court below, No. 7 April Term 1887, C. P. ( On February 16, 1887, Edwin Miller, W. H. Miller and others brought ejectment against the Chester Slate Company, to recover a tract of land in East Allen township, containing a slate quarry. Issue. At the. trial on April 24, 1888, it was made to appear that the defendant, as the Chester Slate Company, was in possession of the disputed property, as the assignee of a lease thereof for the purpose of quarrying and manufacturing slate, executed by Nathan Miller, the predecessor in title of the plaintiffs, to George S. Ziegenfuss and R. A. Grider, the lease containing this covenant: “ The party of the second part agrees to forfeit the lease when they fail in not working the quarry for the space of three successive months.” The plaintiffs introduced evidence to show that the defend-ant became the assignee of the rights of the lessees in the lease in 1882, and continued to mine and manufacture slate therefrom until October 18, 1886, when it ceased work and made no attempt to mine or quarry slate from that day until the suit was brought. John Geiser, called for the defendant, testified that he was superintendent of the quarry, when he was asked to show what work was done in October. Plaintiffs objected to all testimony on the part of defendant of any work done at the quarry after October 18th, except in the quarry itself. By the court: Objection overruled; exception.17 The question, then answered at length, was followed by another: Q. Do you recollect that there was a large flood of water in the latter part of January ? Objected to, as incompetent and irrelevant. By the court: Objection overruled; exception.18 The witness answered that there was a flood of water on January 29th, and about 35 or 40 feet in depth got into the quarry: Q. What was the condition of the quarry during the month of January, or even December already, with reference to the ice that was in it ? Objected to, as incompetent and irrelevant. By the court: Objection overruled, offer admitted; exception.19 Richard Chapman, called for defendant: Q. You have stated that you have some 25 years experience as superintendent of slate works, and that you have been working in slate quarries since you were 12 years of age, in this country and in the old country; now, as' an expert, what is meant by slate men by the working of a quarry ; what constitutes the working of a quarry ? Objected to, as incompetent. By the court: Objection overruled; exception.80 The witness, having answered the foregoing question, was asked: Q. Suppose it was water that was in the quarry, that had to be pumped out before you could mine any slate, would that be called working a quarry among slate manufacturers ? Objected to, as incompetent. By the court: Objection overruled; exception.81 The court, Reeder, J., charged the jury, in part, as follows: The plaintiffs claim in this issue that there has been a forfeiture of the lease on the part of the defendant, because of a breach of the provision in the lease which requires the working of the quarry continuously, and which provided that if the quarry is not worked for a period of three months, then the lease will be forfeited. It is claimed by the defendant that that is not the true interpretation of this clause in the lease ; or, in other words, that the lease does not provide that if the defendant fails to work the quarry for a period of three months, then there should be a forfeiture of the lease, but that there should be a literal interpretation of the clause, that if they fail not to work the quarry for a period of three months, then there would be a forfeiture of the lease; or, in other words, they want the court to say to you that if the defendant, to whom was given for a valuable consideration, first in the lease from Nathan Miller to Rufus A. Grider and George Ziegenfuss, and subsequently by the articles of the agreement between Nathan Miller, and Funk and the Laidshaws, a right to go upon his property and dig and manufacture slate, that if they did what they had paid a valuable consideration for the privilege of doing that would be a forfeiture, and that is the true meaning of this clause in the lease. I cannot so interpret it, and I say to you that the true interpretation of this clause in the lease is as if the word “ in ” in the lease read “ on account of: ” that is to say, that the true reading of this clause in the lease is, that the party of the second part agrees to forfeit the lease when they fail on account of not working the quarry for a period of three successive months ; or, when they fail in manufacturing slate on account of not working the quarry for a period of three months. There is no money rental reserved to Nathan Miller by this lease, but it provides that the compensation to him shall be a royalty of thirty cents upon each and every square of slate made, or mined and sold, and one fourth of all the money received in the sale of flagging, curbing, and building stones. The questions of fact, therefore, for your determination, in order to arrive at your verdict, are but three: 1. What is the meaning of the term “ working the quarry,” in this clause in the lease; 2. Was the quarry worked within the three months, during which the plaintiffs claim that it was not worked; 8. If it was not worked within the three months, were the defendants prevented from working the quarry by the acts of God, or unavoidable accident. The defendant contends that the terms “ working the quarry,” in this clause of the lease, are words of technique; that they are words used in a particular sense in connection with the mining and the manufacture of slate. The plaintiffs, on the other hand, claim that the words are used in their ordinary sense. The difference between the contention on the part of the plaintiffs and that on the part of the defendant is, in effect, this: If the plaintiffs’ contention is correct, then it would be the duty of the court to say to you whaj¿ the words “ working the quarry ” meant. If the contention of the defendant is correct, then it is the province of the jury to say, from the testimony, what the words “ working the quarry ” meant. [I have concluded to leave to you, under the testimony of the experts that have been called in this case, the interpretation of the words “working the quarry,” as contained in this clause in the lease; that is to say, the interpretation of the words “ working the quarry,” as ordinarily used among slate miners and manufacturers.] 9 The defendants have called two witnesses, Richard Chapman and Peter Robinson, who have testified as experts. [They both say that work done in the manufacture of slate about a quarry, is working the quarry as generally understood among slate miners and manufacturers.] 10 If I am mistaken about their testimony on this point, you will correct me; but I think Mr. Robinson said that the working of a quarry consisted in pumping out the water, taking the blocks out of the hole, hoisting them out and delivering them to the slaters on the bank, and splitting and manufacturing them into slate, and that that constituted working the quarry. Therefore, the working of the quarry does not consist alone, according to his testimony, of taking the blocks out of the hole, but that, incident to worldng the quarry is also the manufacture of the slate blocks into slate for the purposes of the trade. And this would seem reasonable too, in connection with the lease, because the only rental that is provided for by this lease is derived from the sale of the manufactured slate. The plaintiffs are not compensated, under this lease for the rock taken out of the hole. Their compensation for the taking of their property is based upon the manufactured slate, the slate that is manufactured after taking it out of the hole. But, as I said before, I propose to leave that question to you for your determination, under the evidence, as a question of fact. The expert witnesses for the defence have also testified that where an unusual quantity of water is precipitated into the hole, which renders the digging of slate impossible until the water is removed, that also is working the quarry. The plaintiffs, upon the other hand, called an expert, George H. Ziegenfuss, who testifies that the removal of dirt and rubbish which have fallen into the hole, preparatory to the removal of the blocks to manufacture slate, would be working the quarry. He says, however, that the manufacture of slate out of blocks already taken out upon the banks, without carrying on the work in the hole, would not be working the quarry. He also says that the removal of water covering the beds in the quarry, from which the blocks are taken to manufacture slate from, is not working the quarry. The defendant contends with some degree of force, and this is a matter that you will take into consideration in determining this question, that there is no difference between the removal of dirt, that has fallen in the quarry and concealed the beds, in order to get at the beds to take out the blocks to manufacture slate, and the precipitation of water in the hole which has covered the beds, and its removal in order to get at the beds in order to take out blocks to manufacture slate. This is a matter that you will take into consideration in connection with the testimony of Mr. Ziegenfuss, for the purpose of determining what weight that testimony is entitled to. If, however, you should conclude that the pumping of the water was not working the quarry, within the meaning of the terms as contained in this clause in the lease, then you will proceed to the consideration of another question. It is undisputed in the testimony in this case that work was stopped generally at this quarry upon October 18th; but that two men, one a slater and the other a dresser, did not stop with the rest of the men; and, according to the testimony of one of the witnesses, William Jones continued to work three or four days later, and according to the testimony of Amandus Stetler, he continued to work until the latter part of the week; indeed, he fixes the day as the day before he himself quit work, which was on Saturday, and that would make it Friday, that James, the slater and his dresser continued to work, and that would be the Friday succeeding Monday, the 18th of October, which would make it October 22d, that James and his dresser continued working on the bank. [Was that working the quarry under the testimony in this case? Because if it is, if you believe from the evidence of the witnesses who have testified as experts in this case, that that is working the quarry, and you believe also from the evidence in this case that the pumping of the water, in order to get at the beds of slate commenced on the 19th or the 21st day of January, the time of the first flood, then they worked the quarry within the three months, and there would be no forfeiture.]11 [If, however, you believe that the work of James and his ' dresser upon the bank, in working up the blocks of slate remaining there, was not working the quarry, but that the working of the quarry stopped on October 18th, and that the quarry was not flooded by tbe first flood until the 19th or 21st day of January, then the quarry was not worked within the three months, unless you should find from the testimony that the making of the slate posts, holing them, and the work that was done by William Jones in January, in splitting slate, was working the quarry.]18 The testimony is that the first flood occurred either on the 19th or the 21st day of January. The testimony of one of the two witnesses who testified upon that subject is, that it was about eight days before the large flood, which occurred upon January 28th, and the testimony of the other witness is that it was eight or ten days, or from the 19th to the 21st day of January. If, however, you believe from the evidence that work was not done upon the quarry, at the time testified to by some of the witnesses, by James and his dresser upon the bank, or, if you believe from the evidence that the pumping was not done there at the time they testify to, then, as I said before,- [you will determine whether, from the evidence, the manufacturing of fence posts and the splitting of the slate in January was working the quarry within the meaning of the term as contained in this clause in the lease.] 13 If you should conclude, that working the quarry is not what was contended for by the defendant, but that working the quarry means solely going down into the hole and taking out the slate blocks from the bottom of the pit, then, before you will render your verdict for the plaintiffs, you will pass to another consideration of this testimony. Where the performance of a duty is prevented by inevitable accident without the fault of the contracting party, the law excuses him from the performance of that duty. But where a person absolutely contracts to do a certain thing, not impossible or unlawful at the time, he cannot.be excused from the obligation of his contract; because he might have made proper provision to guard against it at the time he entered into the contract. Neither inevitable accident, nor even those events denominated the acts of God, vhll excuse him from the performance of any such contract. And the reason given is, that he might have provided in his contract against such contingencies. But there are a variety of cases which are exceptions to this general principle of law. Thus, where a man enters into a contract of marriage and dies, or either party to the contract dies, he cannot be held to the performance of his contract. So, where a man enters into a contract for the sale of a particular horse, and the horse dies, he cannot be held to the performance of his contract. So, where a man enters into a contract for the sale of specific goods, he is discharged from his contract if the goods are destroyed. So, too, where a man enters into a mining lease, containing a clause of forfeiture in case he does not work the mine, or mine the material in a given time mentioned in the lease, and he is prevented from so doing because of the acts of God, or by inevitable accident, he is excused from the performance of that duty, and his failure to perform it does not work a forfeiture of' his lease. [Therefore, I say to you that in this case, if you should find that the working of the quarry within the meaning of this clause in the lease, is not as contended for by the defendant, as a working of the quarry for a period of three consecutive months, it will not work a forfeiture if that working of the quarry was prevented by inevitable accident or the acts of God.] 14 [If, as contended for by the defendant, they were unable to work the quarry because of the condition of the ice which formed upon the side, or which formed upon the bottom of the quarry, and that men refused to go into that quarry for the purpose of working it, or even if they made no effort to procure men to work the quarry, yet, if its condition was such that nobody could work in that quarry without danger to life or limb, the law excuses them, because of this act of God, from the performance of their contract, and the non-performance of it does not work a forfeiture under this clause in the lease.] 15 [If you should find that the pumping of the water out of the quarry is not working the quarry; within the meaning of this clause in the lease,- then you will consider whether their not woiking was on account of such an inevitable accident, resulting from a condition of things over which they had no control and which they had no reason to anticipate or to guard against; and if it was, then they were not able to work the quarry by reason of the act of God, and if that prevented it, then they are excused from the performance of the duty that Was enjoined upon them by this clause in the lease, and its non-performance will not work a forfeiture of their rights under the lease.] 16 If, however, this was for only a certain portion of the time, then you will proceed to determine the question as to whether there was a period of three months when they could have worked the quarry; when the quarry was in such condition that they could have worked it without endangering the lives of their employees, or when they could have quarried the stone from the bottom of it, because of the absence of the water. If there was, then, finding the other facts in favor of the plaintiffs to which I have called your attention, it would work a forfeiture ; that is to say, if, between OctoberlSth and January 18th following, there was no work done, or the quarry was not worked according to the meaning of the term in this clause of the lease, and the condition of the quarry was such that it might have been worked, then, of course, their not working the quarry would work a forfeiture. But if, from October 18th to December 18th the quarry was in condition to be worked, and yet ice formed after that time, and between October 18th and the time of the conclusion of the three months, they could not work the quarry without endangering the lives of their employees, then the law would excuse them from working the quarry, and their not working it would not work a forfeiture of the lease..... The plaintiffs request the court to charge you : 1. That it is the province of the court to construe the lease in evidence from Miller to Ziegenfuss and Grider, and that the jury are bound to accept the construction given to it by the court. Answer: This is true in a measure; that is to say, the lease being a written instrument, it is the duty of the court to construe it, except so far as the meaning of the words, “working the quarry.” Those being words of technique, we have heard testimony in relation to their meaning, and we submit that testimony to you for the purpose of determining what is meant in the craft, or among slate manufacturers and miners, by the words “ working the quarry.”1 2. That the words “quarry” and “working the quarry” are not terms of art, and are to be construed according to their usual and well-known signification among the mass of mankind, which is presumed to be the sense in which the parties used them at the time of making the contract. Answer: That point I cannot affirm.3 3. That a quarry is a place, cavern or pit, where stones are cut from the earth for building or other purposes, and that working the quarry containing slate means, removing the slate rock from the quarry and preparing it for building or other purposes. Answer: I cannot so construe these words as contained in this provision of the lease, but leave that question of fact for your determination.3 4. That the provision in the lease in question, in reference to the forfeiture of the lease, is to be construed in connection with the other parts of the lease relating to the same subject matter; and, as by the first clause of the lease, Nathan Miller granted a lease to Ziegenfuss and Grider, for the purpose of digging, mining, quarrying and manufacturing slate, and erecting buildings and machinery to work the same, the said lease became forfeited whenever lessees failed to dig, mine, quarry, and manufacture slate for the space of three successive months. Answer: If this point means that the lease became forfeited when they failed to dig, mine and manufacture, I cannot affirm it. If it means dig, mine, quarry or manufacture slate, then I leave that question to you.4 5. That the evidence in the case is undisputed; that between October 18, 1886, and January 29, 1887, the defendant did not dig, nor attempt to dig, mine or quarry, or make any effort to dig, mine or quarry any slate rock from the plaintiffs’ quarry, and that between said dates they manufactured no slate, except the making of about a half a square of roofing slate from a block hoisted from the quarry prior to October 19, 1886, and the holing of a small quantity of slate posts, which had been taken from the quarry prior to said last mentioned day; that the work so done was entirely inadequate to relieve them from the penalty of forfeiture imposed by the lease, and the verdict must be for the plaintiffs. Answer: This point I cannot affirm.5 6. That between October 18, 1886, and January 19, 1887, there was a failure to work the quarry in the manner required by the lease to prevent a forfeiture, and the verdict must therefore be for the plaintiffs. Answer: This point I deny.6 The jury returned a verdict in favor of the defendant. Judgment having been entered upon the verdict, the plaintiffs took this writ, assigning as error [inter alia] : 1-6. The answers to plaintiffs’ points.1 to 6 9 — 16. The parts of the charge embraced in [ ] 9 to 16 17-21. The admission of defendant’s offers.17 to 81 1. The fundamental error into which the court below fell was in assuming that the words, “ working the quarry,” were not to be understood in their plain, ordinary and popular meaning, but were technical words, and that evidence must be received to enable the jury to find their meaning: Watson v. O’Hern, 6 W. 362; Koch’s App., 93 Pa. 434. It was the province of the court alone to construe the contract: 2 Parsons Cont., 4; Robertson v. French, 4 East 136; Stanley v. Insurance Co., L. R. 3 Ex. 73 ; Eaton v. Smith, 20 Pick. 165; Krum v. Mersher, 116 Pa. 17; Galey v. Kellerman, 123 Pa. 491. 2. It is apparent from' an examination of the forfeiture clause, that the lease would not be forfeited if the lessees failed to manufacture slate for three successive months. The lessor might recover damages for such a failure, but could not forfeit the lease. The forfeiture could only take place when there was no quarrying. It seems to us, that is the reasonable construction of the instrument, and Blackstone’s pithy rule declares it to be a cardinal principle that it must be “ reasonable and agreeable to common understanding.” 3. The court was in error in its instruction as to the allegation of the defendant that they could not fulfil their contract, because of the acts of God. It is essential to the validity of a defence to an action for a breach of contract, on the ground that by reason of the act of God the party could not fulfil his contract, that there should not be any human agency promoting thé casualty, or that there should not have been any negligence on the part of the party contracting, or failure to perform his full duty in the premises: Michaels v. Railroad Co., 30 N. Y. 564 (86 Am. Dec. 415) ; Crosby v. Fitch, 12 Conn. 410 (31 Am. Dec. 745); Williams v. Grant, 1 Conn. 487 (7 Am. Dec. 235) ; New Brunswick Co. v. Tiers, 24 N. J. L. 697 (64 Am. Dec. 394); Klauber v. Amer. Exp. Co., 21 Wis. 21 (91 Am. Dec. 452); Bostwick v. Railroad Co., 45 N. Y. 712; Marquis of Bute v. Thompson, 13 M. & W. *487. Moreover, the defendant in this case was not entitled to interpose as a defence the equitable doctrine of substantial performance: Gillespie Tool Co. v. Wilson, 123 Pa. 19. “Working the quarry” includes digging, mining, quarrying and manufacturing slate, and the defendant had a right to establish this by proper proof. There is another principle involved that will prevent the court from interpreting these words, and from excluding parol evidence of usage in explaining them. This is a case where the plaintiffs claim a forfeiture, the enforcement of which equity abhors. Where the penalty is a forfeiture, and it is fairly doubtful in the mind of the court, what certain words in a contract may mean, or it is rendered so by extrinsic facts, there the court, for the purpose of ascertaining their meaning and thus to protect the party against an odious penalty, will resort to every legitimate means to effect that purpose and protection. To do otherwise would be to assist the party in the recovery of a forfeiture instead of relieving against it, which is the peculiar province of equity: Steedman v. Cooke, 13 S. & R. 174; Stafford v. Walker, 12 S. & R. 195; Moyers v. Tiley, 32 Pa. 269; Helme v. Insurance Co., 61 Pa. 107; McKnight v. Kreutz, 51 Pa. 232; Newman v. Rutter, 8 W. 51.
129 Pa. 94Duffield v. Hue (1889)
While parol evidence is admissible to ascertain the nature and peculiar qualities of the subject matter of a contract, and to show the situation Part*es resPect t0 yet, where there is no latent ambiguity the construction of the contract is for the court. 1. A grant of “the exclusive right and privilege of digging and boring for oil and other minerals,” for the term of fifteen years from the date thereof, must be treated as a lease for the production of oil, and not as a sale of the oil or of an interest in the land. 3- The court not finding either fraud or mistake in the maldng of an oil-lease, parol evidence offered for the purpose of showing what lands, not embraced in the description, were intended to be included in the grant, is not to be admitted in aid of construction. 4. When the lessor of an oil-lease is dead, and his right, under and subject to it, by his own act or the act of the law has passed to the defendant in an ejectment, who represents his interest in the subject in controversy, neither the surviving party to the transaction sought to be proved, nor the plaintiff in the action, though released by the party offering him, is a competent witness: § 5 (e), act of May 23, 1887, P. L. 158.* 5. It does not follow, that in all Cases where a party to an action derives his title through or under a deceased grantor, neither party can be a witness; it is where a party to a thing or contract in action is dead, etc., and a party to the action represents his interest in “ the subject in controversy.” 6. As a person cannot be supposed to become a party to a thing or contract in action, until after the thing or contract in action has come into being, this rule of incompeteney cannot arise until the thing or contract in action, “ the subject in controversy,” exists.* 7. Where a contract is partly printed and partly written, the written words are entitled to have greater effect given them in the interpretation of the contract, than those which are printed, for the written words are the terms selected by the parties themselves, to express their meaning in the particular case. 8. The right of the lessor in an oil lease to insist upon a forfeiture by reason of a failure of the lessees to put down a seventh well in a stipulated time, is waived by his acquiescence in the failure to put down two or three of the preceding six wells within the periods stipulated in the lease.
129 Pa. 109Patterson v. Scranton etc. R. (1889)
EROM THE DECREE OE THE COURT OE COMMON PLEAS OE LACKAWANNA COUNTY, IN EQUITY. No. 48 January Term 1890, Sup. Ct.; court below, No. 3 October Term 1889, C. P. in Equity. On September 7, 1889, Roswell P. Patterson filed a bill in equity against the Scranton & Forest City Railroad Co., which averred: 1-3. That the plaintiff was the owner in fee of a certain tract of land in the boroughs of Blakely and Winton, said county, over which the Lackawanna river flowed. 4. That on or about September 3, 1889, the defendant, by itself and its agents, etc., without any warrant or authority of law, and without having complied with the statutes in such cases made and provided, entered upon plaintiff’s said lands and commenced to dig, excavate, fill up and construct its railroad thereon, to the great damage of the plaintiff; and that the said railroad company, without any warrant or authority of law, and contrary to law, and without having complied with the acts of assembly in such cases made and provided, was then upon said lands and attempting to construct its said railroad thereon. 5. That the defendant, by itself, its agents, employees, contractors and workmen, had entered and was then upon the lands of the plaintiff, described in paragraph two of the bill, without any authority of law and contrary to law, and in violation of the acts of assembly in such cases made and provided, filling up the bed of the said Lackawanna river, where the same naturally flowed over, upon and across the said described lands of the plaintiff, and was by such unlawful filling up of said river diverting its natural flow or course, to the great and irreparable injury of the plaintiff, and to the plaintiff’s lands described in paragraph two of this bill. The bill prayed for an injunction restraining the defendant from entering upon the plaintiff’s lands to construct its railroad thereon, from filling in the bed of the river, and from diverting the natural flow of the river where it crossed said lands. A preliminary injunction was awarded, on the filing of the bill, and the same day a rule was granted on the defendant to show cause why the preliminary injunction should not be continued, returnable to September 12th. On September 14,1888, the rule having been argued, the-court, CrUNSTEE, J., filed the following opinion: There can be no question but that a corporation, invested with the privilege of taking private property for public use, must make just compensation for property taken, injured or destroyed by the construction of its works or improvements, and that such compensation must be paid or secured before such taking, injury or destruction .* Article XVI., § 8, of the Constitution; and that injunction is the proper remedy in case such corporation attempts to take, injure or destroy property before the compensation therefor has been paid or secured: Commonwealth v. Pittsb. etc. II. Co., 24 Pa. 159 ; Unangst’s App., 55 Pa. 128; Stewart’s App., 56 Pa. 413. There is, however, an obstacle in the way of continuing the injunction heretofore granted. The defendant' not only denies the title of the plaintiff, but alleges that the company has the title to the locus in quo and that it and those under whom it claims have been in possession thereof for many years. There is no formal proof of paper title; but the defendant shows by the affidavit of J. W. Peck, from whom it purchased, as well as by the affidavits of a number of others, that John Mesfeicar and those claiming under him were in possession of the land for many years; that Mr. Peck bought of those in possession about twenty years ago, and that he sold to the defendant in March of the present year. On the other hand, the plaintiff claims to have purchased the land in 1871, and his deed was in evidence before me. I have no doubt the land described in the deed includes the land on which the defendant is constructing its railroad, but the plaintiff offered no evidence to show title in those from whom he bought, and no evidence as to who had been in possession of it, to rebut or overcome that offered by the defendant. When the plaintiff’s right has not been established at law, or is not, clear, but is questioned on every ground on which he puts it, he is not entitled to an injunction : Rhea v. Forsyth, 37 Pa. 503; Minnig’s App., 82 Pa. 373; Washburn’s App., 105 Pa. 480. If the plaintiff were, or ever had been, in possession of the land, a different question might b”e presented, hut .1 do not see my way clear to restraining the defendant from carrying on a legitimate enterprise on land of which it is in possession and to which it claims the title, before the plaintiff’s rights have been established at law. The plaintiff also alleges in his bill of complaint that the defendant is filling up the bed of the river and diverting the channel therof, and that this will cause him irreparable injury. He is in possession of lands on the east side of the river. His rights as a riparian owner are not defined. This part of the complaint appears to me to be based upon a misapprehension of the plans and purposes of the defendant. If the defendant intended to construct the retaining wall already begun to the middle pier of the Decker bridge and to fill in all of the channel between such wall and the former bank of the river on the west side, the complaint would no doubt be well founded; but it appears from the maps and affidavits before me that instead of building the wall to the middle pier of the bridge, it is only cutting into the rough banks of the river and erecting a solid wall with a smooth surface to protect the banks of the river, and that the dirt now thrown into the river is from the excavations made for the wall, and is to be thrown back as filling. The engineers all testify that a wall with a smooth surface, such as is being constructed, instead of impeding the flow of the river or deflecting it upon the plaintiff’s land, will draw the water to itself and increase the flow. If such is the case I do not see how the plaintiff will be injured. The injunction heretofore granted is dissolved. Thereupon the plaintiff took this appeal, assigning as error the order of the court dissolving the preliminary injunction. Counsel cited: Masson’s App., 70 Pa. 26; 2 Wood’s Railway Law, 870; Commonwealth v. Railroad Co., 84 Pa. 159. The brief filed cited: Rhea v. Forsyth, 37 Pa. 503; Mammoth Vein Coal Co.’s App., 54 Pa. 183 ; New Boston C. & M. Co. v. Water Co., 54 Pa. 164; Brown’s App., 62 Pa. 17; Norris’s App., 64 Pa. 275 ; Tillmes v. Marsh, 67 Pa. 507; Minnig’s App., 82 Pa. 373; Washburn’s App., 105 Pa. 480.
129 Pa. 113Pennsylvania R. v. Lyons (1889)
EEEOE TO THE COUET OE COMMON PLEAS NO. 1 OE PHILADELPHIA COUNTY. No. 91 July Term 1889, Sup. Ct.; court below, No. 644 September Term 1886, C. P. No. 1. On October 20,1886, Thomas Lyons brought case against the Pennsylvania R. Co. to recover damages for injuries received through the alleged negligence of the company defendant. Issue. At the trial on October 6, 1887, the plaintiff introduced evidence to show that on the evening of April 6,1886, in the company of two friends, Dooley and Henzey, he was a passenger on a train of the company from Philadelphia to Haverford College station; that upon hearing the station called by a trainman, he and his friends arose from their seats and went to the door of the car; that as the train stopped they opened the door and went out upon the platform of the ear; that Dooley passed out first, Henzey next, and the plaintiff followed, carrying a demijohn under one arm and packages of clothing under the other; that Dooley and Henzey immediately stepped off the car as it stopped about two feet distant from the baggage-stand of the station, which was a raised portion of the station platform about five and a half feet high and about twelve feet long, running parallel with the tracks and about one foot distant from a car standing upon them ; that the car did not stop for more than ten or twelve seconds, and it was started just as Henzey stepped off it, but that Lyons was unable to get off, the car by that time moving past the baggage-stand. Lyons testified that when in the act of stepping off, he was turned backwards and dragged alongside the car between it and the baggage-stand to a point beyond it, and was there thrown by the motion of the train upon the platform of the station, receiving severe injuries. Henzey described the accident as follows: “ Dooley first stepped off the car on to the platform, and I next to him. When I got off, I wheeled around and saw Lyons stepping down with one foot on the lower step. It was in motion, moving slowly. Lyons was about getting his last foot off the step. He had the demijohn and the packages in his hand and under his arm. He was holding on with the other hand. He was too near to the baggage-stand to get off, and was too far over to get back again on the steps of the car. He was overbalanced. I looked at him and said, ‘ Hold on! ’ And he hallooed out, ‘ Hold on, boys! ’ three or four times. It was as if he was screeching. The train passed on and I didn’t see him any more until the train had passed the stand.” Dooley testified that he opened the door and got on the platform, and Henzey stepped off: “ He was next to me, behind. As he stepped the train just moved, and the plaintiff was on the lower step, and hadn’t time to step off for the baggage-stand ; that is, the baggage-stand at that time was in his way, so that he could not step upon the platform.” The witness was then asked: Q. What did Lyons say when yon got to him, when you found him lying on the platform? Objected to: Objection overruled; exception.1 A. He said he was hurt bad. Q. Badly hurt? A. Yes, sir; badly hurt. Q. What else did he say at that time ? A. That is all I seen. He was badly hurt, and we carried him into the station. Q. Was anything said by him at that time with regard to how he was caught, or what sort of a chance was given him to get off? A. Yes, sir. Q. I mean when you got to him and he said, “ I am badly hurt,” did he say anything explaining it at that time ? A. Yes, sir; he said that he got no chance to get off, and that his foot was caught against the steps. The defendant’s testimony was to the effect that when the train approached the station, the conductor called the station through the rear door of the car where the plaintiff and his friends were ; saw them arise and go towards the front of the car, and after helping several passengers off, some of whom were ladies, he got upon the platform of his car, saw that these men had left the car, and, supposing them to have gotten off, as they had had ample time to do, he gave the signal to start the train; that the baggage-agent at the station was standing on the baggage-stand, and saw the plaintiff and his friends on the platform of the car; Dooley and Henzey passed around the plaintiff and got off; the plaintiff then started down the steps, the train having already commenced to move; he called to him not to jump off; the plaintiff then remained upon the lower step of the car until it had passed the baggage-stand, when he voluntarily jumped from the car and was injured. There was also testimony that the train had stopped at the station about three quarters of a minute, or a minute. The court, Allison, P. J., submitted to the jury the questions involved, with a full review of the testimony, and answered the points presented by the defendant company as follows: 1. Where a railway train does not stop at a station to which it has agreed to carry a passenger, or does not stop a sufficient time to allow him to alight, it is the duty of the passenger to remain upon the train, and not to attempt to jump off; therefore, even if the train in this case did not stop a sufficient time to allow the plaintiff to leave it, yet he should not have jumped off after it-started, and his doing so was such contributory negligence upon his part as will prevent a recovery in this case. Answer: My answer to that proposition is, that, as a general rule, if a passenger' is about to be carried beyond a point at which he was entitled to get off the train- by reason of the train not stopping, or if the train starts before he has a reasonable time to get off the train, to jump off that train when it has attained any considerable speed or momentum, is an act of carelessness per se which would defeat any man’s right of action, to show that after the train had got under headway, and was going at any considerable rate of speed, he undertook to jump off from the platform. I do not affirm this proposition in the breadth in which it is put to me. I do not say that when a train is just beginning to move, when it is in motion but just starting, if slightly, a passenger would be guilty of contributory negligence by stepping off, under such circumstances as that; but if a train is in motion, under headway, and a passenger attempts to jump off, it is contributory negligence which would defeat his right of recovery.3 2. If the jury believe that the train had stopped a sufficient time for the plaintiff to leave it, upon the platform where passengers leaving the defendant’s ears usually land,- and then started upon its course, and that the plaintiff then jumped from the platform or steps of the car, he was guilty of contributory negligence, and cannot recover. Answer: I say to you upon this point, in connection with the other point, that in every case it must be left to the jury to say whether under the circumstances of the case, as it is presented to them, the plaintiff is guilty of contributory negligence. In cases like the one before us, such as referred to in the point here, it is for the jury to say whether under the circumstances the plaintiff was guilty of contributory negligence in stepping off the car when it was in motion. My own view of it is that it depends altogether on the speed or rate of motion that the train is under, at the time a passenger attempts to step off. I do not say, if a train has just begun to move, that it is contributory negligence to step off a car; but in all cases it must be left for the jury to say, according to the proof as to how the train was moving at the time the passenger attempts to jump off, — the jury are to determine whether it was contributory negligence in him to get off under the circumstances of that special case.3 Now, these points, the first particularly, assume the fact that the plaintiff jumped off the car. That is a fact which the jury must determine under the evidence. You must recollect the plaintiff’s testimony, that is, that he did not jump off the car; while the testimony of the baggage agent is, that he did jump off, and jumped off backwards. That leaves it as a question of fact for the jury to determine; whether the plaintiff did actually jump off or not. If they find that he did not jump off, then these points have no application to the case. If they find that he did jump off, then with the qualification which I have given in my answers, the jury will be governed accordingly. 3. The evidence shows that the plaintiff was guilty of such contributory negligence as will prevent his recovery in this ae-. tion, and the verdict must be for the defendant. Answer: ■ Refused.4 4. There is no evidence of negligence upon the part of the defendant, and the verdict must therefore be for the defendant. Answer: Refused.® 5. Under all the evidence in the case the verdict must be for the defendant. Answer: Refused.6 The jury returned a verdict for the plaintiff for $2,000. Judgment having been entered, the defendant company took this writ, assigning as error: 1. The admission of the plaintiff’s offer.1 ■ 2-6. The answers to the defendant’s points.8 to 6 1. The evidence covered by the first assignment of error was improperly admitted as part of the res gestee, for the reason that it was merely narrative of a past transaction: Ogden v. Penna. R. Co., 44 Leg. Int. 138. 2. There was not sufficient evidence of negligence in the company to submit the case to the jury : McClintock v. Penna. R. Co., 21 W. N. 133; Strouse v. Railroad Co. (Mo.), 6 A. & E. Ry. C. 311; Central R. Co. v. Slatton, 54 Ill.-; Railroad Co. v. Statham, 42 Miss. 607. 3. It is difficult to see why the learned judge did not affirm the defendant’s second point absolutely and without qualification. Not so to affirm it surely was error. The point took nothing from the jury in the way of ascertaining facts. On the contrary it left the facts to the jury.. And there were no exceptional circumstances in the case, which would enable the plaintiff to claim the benefit of the exception to the rule that it is negligence per se to jump from a moving train: Burrows v. Erie R. Co., 63 N. Y. 556. 1. It is submitted that this case comes under the rule that, under special circumstances, it may not be negligence for a person to step from a moving train: Penna. R. Co. v. Peters, 116 Pa. 206 ; Johnson v. West Chester etc. R. Co., 70 Pa. 358. 2. The declarations of the plaintiff were properly admitted as part of res gestee: 1 Greenl. Ev., § 109; Elkins v. McKean, 79 Pa. 493; Tompkins v. Saltmarsh, 14 S. & R. 275; Deardorf v. Hildebrand, 2 R. 226; Cattison v. Cattison, 22 Pa. 275; Hanover R. Co. v. Coyle, 55 Pa. 402. In the case of Ogden v. Railroad Co., the person had been moved from the place of the injury before making the declaration.
129 Pa. 121Schuylkill Co. v. Petery (1889)
FROM THE DECREE OE THE COURT OE COMMON PLEAS OE SCHUYLKILL COUNTY, IN EQUITY. No. 338 January Term 1887, Sup. Ct.; court below, No. 3 September Term 1885, C. P. in Equity. On July 20, 1885, a bill in equity was filed in the name of the county of Schuylkill against Jacob F. Petery and Daniel Boyer, which in substance averred : That on June 10, 1878, the treasurer of Schuylkill county sold to the commissioners of said county, at a public tax sale, for the unpaid county tax of 1876, a tract of land in East Union township, assessed and sóidas “John Hare Powell, 88 acres, warrantee C. North,” and subsequently duly executed and delivered to said commissioners his deed for it. That the commissioners held this title more than five years, and then, on March 22,1884, sold the same to Jacob F. Petery, one of the defendants, for $2.50, and on April 9, 1884, executed and delivered their deed to him. That at the time of this sale and conveyance Daniel Boyer, the other defendant, was one of the commissioners. That complainants were informed and believed that prior to and at the time of the commissioners’ sale, said Boyer had a contract and arrangement with Petery whereby he should become an owner in whole or in part of said tract. That from the date of that sale Boyer had asserted that Petery’s purchase was wholly or in part in his interest. That the purchase was made by and the deed made to Petery, to cover up the illegality of a purchase by Boyer himself at a sale which, as a county commissioner, he was holding. That the amount due to the county on the day of the treasurer’s sale was $48.40. That this tract was claimed by the Lehigh & Wilkes-Barre Coal Co. under a title going back to the original grant from the commoñwealth. That on December 1,1884, Petery executed a deed to Boyer for an undivided one half interest in this tract for a nominal consideration of $25, but long prior to this conveyance, and within two weeks of Petery’s purchase, Boyer had asserted his ownership of the whole or a part of the title purchased by Petery. That on February 2, 1885, to No. 180 March Term 1885, said Boyer and Petery instituted an action of ejectment against the Lehigh & Wilkes-Barre Coal Co. for this tract: — Praying that by reason of the illegality of the arrangement or contract between the defendants, whereby Boyer attempted to acquire a title to land.sold by himself as a county commissioner, the sale be declared null and void and set aside, and the said Petery and Boyer be required to deliver up the commissioners’ deed to Petery for cancellation. The answer of the defendant, Petery, filed September 7,1885, protesting that nothing in the bill entitled the present board of commissioners to interfere or impeach the title of the defendants, admitted that Boyer was one of the three county commissioners at the time of said commissioners’ sale, but denied, in the language of the bill, that there was, either prior to or at the time of the sale, any contract or arrangement-whereby Boyer was to become an owner of the title which Petery purchased, either in whole or in part; denied, also, that there was any arrangement whatever between them, and alleged that at the time of the sale Boyer was in no way interested in the purchase. The answer of Boyer denied that he asserted or admitted, as stated in the bill, that Petery’s purchase was in his interest, and that it was so made and the deed executed to Petery to cover up the illegality of his purchase; admitted the execution of the deed from Petery to him for the undivided one half, as stated in the bill, but denied the assertion, attributed to him, as to ownership prior to this deed, or that he had made any assertions or admissions inconsistent with the honesty of the sale to Petery; admitted the bringing of the ejectment suit, but denied that the county was in any way interested or concerned in the matter, or that the present county commissioners had legal or equitable status in the premises. The cause having been put at issue, Mr. Mason Weidman, was appointed examiner and master, and on December 8, 1886, reported as follows: Tbe undisputed facts are that the treasurer of Schuylkill county, on June 10, 1878, sold to the county commissioners, at a public tax sale, for the unpaid county tax of 1876, the Caleb North tract of 88 acres assessed in the name of John Hare Powell, as unseated, in East Union township, and duly delivered the deed; that, having held the title for more than five years, the commissioners, on March 22,1884, sold the same at public sale, and it was knocked down to Jacob F. Petery, one of the defendants, he being the highest bidder, for $2.50, that being the highest price bidden for the same, and delivered the deed to Daniel Boyer, made out in the name of Petery, on April 9, 1884; that Daniel Boyer was one of the three county commissioners who, in the name of the county, held the sale and made the deed; that the amount due to the county upon this tract on the day of the commissioners’ sale was $48.40; that the tract is claimed by the Lehigh & Wilkes-Barre Coal Co., under a title going back to the original grant from the commonwealth; that Petery, by deed dated'December 1, 1874, executed a deed by which he conveyed to Boyer one undivided half of the tract; that the consideration named in this deed was $25, whereas the amount paid by Boyer was the one half of the bid $2.50, and for the deed $2.00, i. e. $8.25. That Petery and Boyer, upon this title, have brought an action of ejectment against the Lehigh & Wilkes-Barre Coal Co. for the possession of the land. It is alleged by the complainant that prior to said sale by the commissioners, and at that time, the defendants had a contract and arrangement between them whereby it was understood that Petery was to purchase this tract of land and others at this sale, and that Boyer, the commissioner, was to share in the titles, profits and costs; that Boyer from the day of Petery’s purchase at the sale, has asserted that he had an interest in this tract; that they arranged between them that the purchase and the deed should he in Petery’s name so as to cover up the illegality of Boyer’s purchase at a sale which, as a county commissioner, he was helping to conduct. On the ground of the illegality of this contract or understanding, the court is asked to annul and set aside the sale to Petery as fraudulent in law or fact, and to direct the deed of the county commissioners to him to be delivered up for cancellation." The answer of the defendants denies these allegations in the language in which they are made; denies that there was any arrangement or contract whatsoever between the defendants prior to or at the time of the sale, or that Boyer either admitted or asserted that Petery’s purchase was in- his interest; or that the purchase and deed were made to Petery to cover the illegality of a purchase by him; or that Boyer ever made any admission inconsistent with the hoqesty of the sale by the commissioners to Petery. The defendants also deny that the county of Schuylkill has any interest in this suit, or that the present county commissioners have any status, legal or equitable, to maintain this bill. They claim also, as matter of law, that this bill is a mere ejectment bill, and should not be sustained. -The questions raised at the argument upon the bill and answer are: 1. Assuming the facts to be proved, as stated in the bill, is the remedy at law adequate, and should the bill be dismissed as an ejectment bill? 2. Have the present commissioners, or those who filed this bill, sufficient interest to maintain the suit ? 3. Was the purchase by Boyer fraudulent in law or in fact? 1. Is the remedy at law adequate ? The master has been referred to every authority in the digest which asserts the doctrine that a bill in equity will not be sustained where the remedy at law is adequate. As this is an elementary principle, growing out of the definition of equity, none of these cases need be particularly referred to. —Discussing elaborately, however, the following: Meek’s App., 97 Pa. 313; Richard’s App., 100 Pa. 51; Long’s App., 92 Pa. 171; Messimer’s App., 92 Pa. 169; Gloninger v. Hazard, 42 Pa. 389; North Penn. Coal Co. v. Snowden, 42 Pa. 488; Kennedy’s App., 81* Pa. 163; Barclay’s App., 93 Pa. 50; Dohnert’s App., 64 Pa. 311; § 13, act of June 16, 1836, P. L. 789; §39, act of June 13, 1840, P. L. 671; §1, act of February 14, 1857, P. L. 39; Ressler v. Witmer, 1 Pears. 174; Gandolfo v. -Hood, 1 Pears. 269; 1 Story, Eq. J., 11th ed., §§695, 699, 700; Brightly’s Equity, §119; Fowler’s App., 87 Pa. 449, the master proceeded: There is no difficulty in reconciling these authorities. From those last cited it is plain, and I do not understand that it is disputed, that our courts, under the statutes, have a clear right, in case of fraud, either actual or constructive, to require the surrender of a deed and to decree its cancellation. The cases cited by the defendant only limit this right to the extent that where there is an adequate remedy at law; by ejectment or otherwise, the chancellor will dismiss the bill. But this doctrine does not bind the chancellor absolutely, and he may permit the bill to proceed, even when there is an adequate remedy at law: Ressler v. Witmer, 1 Pears. 174. The county of Schuylkill has never had possession of this land. Its only claim upon it is a deed from the county treasurer. That title and the evidence of it they have handed over to the defendants. It is charged in the bill that the defendants procured this to be done by a fraud both actual and constructive, and the bill seeks to bring that fraud to the knowledge of the court for the purpose of destroying its effect. The only demands of the bill are that this fraud may be investigated, and, if found to exist, that the deed may be delivered up for cancellation. Has the county a legal remedy adequate for its purpose in this case ? Ejectment was the only remedy suggested. But ejectment lies only against the party in possession; and Boyer and Petery are not in possession, and by their ejectment suit against the Lehigh & Wilkes-Barre Coal Co. have admitted this fact. Nor can the county sue this company for possession, because it has parted with evidences of title, and to such an action this would be a sufficient answer. Besides this, it is not contemplated by our statutes that the commissioners should hold lands purchased at treasurer’s sales or involve the county in litigation to obtain possession. The law directs them to sell their title whatever it may be. In trying to perform this duty their allegation is that a fraud has been perpetrated by one of their number, who with them had the sale in charge. If this allegation is proven, what is the proper and adequate redress? An action for possession? Defendants are not in possession. An action for damages? An action for damages would condone the act which the fraud vitiates, because the act must be approved as the basis of the demand' for damages. The fraud, actual or constructive, poisons the sale and renders it void or voidable. If the poison is found, the sale must be annulled; if it is not found, the sale must stand. Tils is the whole scope of the bill and of the remedy demanded. If an act is in violation of the public policy, or a matter of principle, it ought not to stand simply because the parties who benefit by it are willing to pay damages, unless the parties whose rights are affected by it are content with that satisfaction. It certainly ought not to be the privilege of the offenders to refuse any other remedy. It has been argued that the objection to jurisdiction not having been made until after answer filed, comes too late. As the master has decided that this court has jurisdiction, it is unnecessary to consider the authorities cited on this point: Bank of Kentucky v. Bank, 1 Pars. 180; Wiser’s App., 9 W. N. 508. 2. Had the commissioners of the county who instituted this suit sufficient interest, or a legal or equitable status, to maintain it? I suppose that it is not contended that the fact that the board had changed between the making of this sale and the deed, and the bringing of this suit, made any difference. If there was actual fraud there would be no doubt of the status of the county commissioners. If the acts complained of constitute only constructive fraud, the right of the county commissioners, as cestuis qui trust in reference to the sale and its avoidance, will be more appropriately considered under the next question. The present inquiry is whether the commissioners have sufficiently authorized and are sufficiently pursuing this suit ? ******** It is now decided that it has sufficiently authorized this suit. 3. Was the purchase by Boyer such a fraud in law or fact as to render the sale void or voidable ? If there was actual fraud, or fraud in fact, it is not denied that the sale should be set aside. If there was no fraud in fact, or if the proof is insufficient, was there fraud in law, constructive fraud ? If so, who has the right to complain ? And what redress does the law afford? Every judge and modern writer has accepted the principle that transactions in which the same person is both buyer and seller are to be jealously and searchingly examined. Some judges have thought that it would have been the wiser and better course never to have confirmed such a sale in any case. The rule is that no man shall be both buyer and seller; and from the earliest times, without any change in the principle, there has been a determination on the part of the courts to maintain it; so that there are very few, if any, exceptions to its application, the exceptions being rather cases which upon the facts are not within the principle of the rule. —Considering at length the following citations: Davoue v. Fanning, 2 Johns. Ch. 252; 1 Story Eq. J., §§ 258-9, 807-8, 816; Brightly’s Eq., §§ 90, 98, 100, 101; Lazarus v. Bryson, 3'Binn. 54; Moody v. Vandyke, 4 Binn. 43; Campbell v. Penn. L. Ins. Co., 2 Wh. 63; Fisk v. Sarber, 6 W. & S. 18; Webb v. Dietrich, 7 W. & S. 402; Painter v. Henderson, 7 Pa. 48; Pennock’s App., 14 Pa. 446; Myers’ App., 2 Pa. 465; Fox v. Cash, 11 Pa. 207; Cuttle v. Brockway, 24 Pa. 147; s. c. 32 Pa. 45; Hallman’s Est., 13 Phila. 562; Eiehelberger v. Barnitz, 1 Y. 307; Beeson v. Beeson, 9 Pa. 285; Bruch v. Lantz, 2 R. 417; Chronister v. Bushey, 7 W. & S. 153; Campbell v. McLain, 51 Pa. 200; Peters v. Heasley, 10 W. 211, the master proceeded: From these cases I infer the rule to be, that where the fact is admitted, or the proofs show, that a third person was interposed as a purchaser for the benefit of the trustee, the purchase is of the same defeasible nature and quality as if the purchase had been made directly by the trustee, and may be avoided as of course and at the option of the cestui que trust. If, however, the agency of the third party is disputed by the trustee, that fact must be proved and found as a conclusion warranted by the evidence: Eiehelberger v. Barnitz, 1 Y. 307 ; Lazarus v. Bryson, 3 Binn. 54; Moody v. Vandyke, 4 Binn. 31; Bruch v. Lantz, 2 R. 417; Chronister v. Bushey, 7 W. & S. 153; Webb v. Dietrich, 7 W. & S. 401. No witness examined before the master testifies directly to any knowledge of an agreement or arrangement between these defendants, before this sale, to buy any particular tract, or to buy at all. Both of the defendants positively swear that there was no such arrangement. The master is asked to infer that there was, from the following facts and theories: Boyer and Petery admit having had a conversation before the sale about the lands offered, and as to whether there would be anything worth buying. They both say that Boyer said that he didn’t know, that he had not had time to look them up. Boyer asked the treasurer, if Petery’s ’bids ran up so high that the money he had with him would not pay for them, to indulge him and that he would see the treasurer paid or would pay them himself. The treasurer’s clerk could not say which way he made the promise. That Petery only made two bids, both on the second day, and then only $2.50 and 50 cents; that they were relatives, connected by marriage; that before the deed .was made they had agreed upon a division of the property by dividing the expense of the purchase ; that for this small sum Petery sold what he believed to be valuable property; that though the bargain was made before the deed was delivered, and Boyer paid to the county the price of the deed, yet the name' of the grantee in the deed only showed that Petery was the purchaser, and this was done because Boyer knew, as he testified he did, that a commissioner had no right to buy at this sale; that though the bargain was made between March 22 and April 9, 1884, no deed was executed or delivered until December of that year; that in that deed the consideration was stated to be $25, when in fact it was only $4; that all the writings differ from the truth, and that the motive for this was concealment; that whilst they both swear that a week or more elapsed after the sale, before Boyer acquired any interest, Kimber C. Wilson swears that Boyer was looking up the title two days' after the sale; that Boyer, Petery and Reber contradict each other as to when the request to the treasurer for indulgence to Petery was made; — it is argued that this testimony shows that there was a secret agreement between the defendants, and that this fact, in connection with the inadequate price, are grounds for setting this sale aside. No authority has been shown to the master holding or arguing that inadequacy of price is a ground for disturbing a commissioners’ sale. There are good reasons for the belief that it will never be recognized as a ground for so doing. I am. unable to see in these facts the proof that there was an agreement or conspiracy between the defendants, which existed before or at the time of the sale. There is no direct testimony that there was such an agreement. There is testimony in positive denial by both defendants, that there was not. Nor can I infer this from the other facts which are relied upon by the complainant. The conversation before the sale, so far as this testimony shows, only proves that Petery was interested in making an advantageous purchase, and that Boyer gave him no information or aid. Boyer did secure a privilege for him as a bidder, and he was the only person for whom he did secure that privilege; but the treasurer’s clerk, whose testimony shows it, also swears, that quite a number of other persons had the same privilege accorded to them by other officers connected with the sale. Mr. Wilson’s testimony does not pretend to prove a knowledge of any arrangement before the sale; he testifies that Boyer was claiming an interest soon, a few days after the sale. But as Wilson is not positive as to the time, and as both Petery and Boyer admit that the purchase of Boyer was between March 22d and April 9th, not much seems to be inferable from this fact. The master is unable to find in this testimony proof that there was such an arrangement. Both defendants swear that there was not; nobody swears that there was. It would be unfair to find actual fraud in the face of this positive denial, from facts which are not inconsistent with innocence. The property was “knocked down” to Petery on March 22, 1884. Very shortly after that, and before the deed was paid for or executed, he bargained with Boyer, who was still a county commissioner, and agreed to take him in as a partner on paying one half of the bid and expenses. Petery had then paid his bid, but had not paid for the deed. On strength of this bargain, Boyer paid his own money for the commissioners’ deed to Petery, directed it to be made out, and received the deed. In December following, Petery made a deed to Boyer for an undivided one half of this tract, in pursuance of the ■bargain admittedly made before Petery had received his deed. When the defendants made that bargain, Boyer was a county commissioner. His duties as such in reference to this sale were not ended. The deed had not been executed or delivered. He afterwards joined in its execution. In other words, the title was still in the county and remained there until Boyer, by reason of his bargain, paid for the deed, and then as a public officer .and trustee joined in its execution. The property had been struck down to Petery, as tbe highest bidder at a public sale, and he had signed an acknowledgment and contract as purchaser. It may be the fact that the duties that were still to be done by Boyer as commissioner in reference to the sale, were merely formal and unimportant, and not of such a character that they could have aided Petery to any peculiar advantage. This may or may not be so. In the eye of the law this inquiry is unnecessary, and to make it would be to recognize exceptions to the rule, which have not been countenanced by our courts. The courts in these cases do not guess or inquire whether the trustee was or could have been of service in getting some advantage. In Fisk v. Sarber, 6 W. & S. 18, the assignee for the benefit of creditors was permitted to buy at a sheriff’s sale on a mortgage adversely held, and which he had not the means to pay out of the assignor’s estate, because the court thought that it was not his sale, and that under the circumstances of that case, he had no duty to perform whatever, as such assignee, in reference to the sale. In Cuttle v. Brockway, 32 Pa. 45, a commissioner was allowed to buy at a treasurer’s sale for more than the tax and costs. But that was a treasurer’s sale, not a commissioners’, and the ground on which the right to buy was made to rest was, that a bid greater than tax and costs by the commissioner would have been, not only a part of his duty, but not a violation of law: See also Bartholomew v. Leech, 7 W. 472. Until the relation of trust is entirely ended and no more care or duties required from the trustee, he cannot acquire anything but a defeasible title; and that no wrong has been proved does not prevent the application of the rule. Now, if the commissioners’ deed had been drawn and delivered in accordance with the facts, as they are admitted to have been when the deed was delivered, the deed would have been to Boyer and Petery, and not to Petery alone. It was not so drawn; but the testimony shows that that was the fact; and that fact, under the decisions of our court, it seems to me, brings this case within the reason of the rule and renders it a constructive fraud, voidable as of course at the option of the cestui que trust, the county of Schuylkill, whose trustee Boyer was; and this follows whether any wrong was done or not and whether Boyer or Petery gained undue advantage or not. The county’s demand that the sale shall not stand, is sufficient reason for setting it aside. Nor does it help the case any that Petery at the time of his bid had no relation of trust which would prevent his acquiring title. He is charged with a knowledge of the law; and, having entered into a contract which brought his rights under the condemnation of the policy of the law, he must suffer the loss. If it be true that the county, upon its own motion had a right to disaffirm this sale, the costs of this suit must also fall upon the defendants, viz.:..... —The master, therefore, recommended a decree that the sale of the land, known as the John Hare Powell tract, by the commissioners of Schuylkill county to Jacob F. Petery, on March 20, 1884, be declared null and void and set aside, and that said Jacob F. Petery and Daniel Boyer, defendants, be decreed and directed to deliver to the court for cancellation the deed made therefor, and that the defendants pay the costs of the proceeding. On March 7,1887, various exceptions to the foregoing report filed by the defendants, having been argued, the court, Green, J.,'without opinion filed, dismissed them and confirmed the report, entering the decree recommended by the master. Thereupon the defendants took this appeal, specifying that the court erred: 1. In not dismissing the bill, because the county was not a party to it, the name of the county having been used without proper authority, and only to subserve the purposes of the Lehigh & Wilkes-Barre Coal Co., which company is the actual party. 2. In not dismissing the bill for want of jurisdiction, there being ample remedy at law. 8. In not dismissing the bill, because the allegations therein contained were wholly unsupported by the evidence. 4. In not dismissing the bill, because, the allegations therein ■contained being denied in respondents’ answer, the answer was conclusive and was not overcome by competent proofs. 5. In not dismissing complainants’ bill for want of equity. 6. In not dismissing the bill, because the complainants had not refunded, or offered to refund, the purchase money paid them by Petery, prior to the institution of this suit. 7. In confirming the master’s report. 1. Is the county really the complainant in this case ? And was this suit duly authorized ? All business that requires care, deliberation and judgment, must be transacted at a regular meeting of the board of commissioners, and the minutes should show it: Sections 19, 20, 21, act of April 15, 1834, P. L. 541; Pike Co. v. Rowland, 94 Pa. 246. There is nothing on the minutes or records of the commissioner’s office to show any authority for the litigation. Only one of the commissioners signed the bill, or authorized the suit. Moreover, it is clearly shown that at best the county is but a nominal party, and that its name is used as a mere cover for the Lehigh & W. Coal Co. 2. Even if the county could be considered a bona fide plaintiff, we submit that this is an ejectment bill. The allegation of fraud is a mere cover. The evident purpose is to enable the Lehigh & W. Coal Co. to redeem from this tax sale, and then successfully defend in the action of ejectment brought against them. The subject of ejectment bills has been discussed in a number of recent cases: Fox’s App., 99 Pa. 385; Meck’s App., 97 Pa. 316; Frisbee’s App., 88 Pa. 144; Messimer’s App., 92 Pa. 168; Long’s App., 92 Pa. 171; Richard’s App., 100 Pa. 51; Triscuit’s App., 13 W. N. 57. 3. The bill should have been dismissed for want of the requisite proofs. The answer of each defendant denied the averments of the bill in the very words in which they were made; and it is horn-book law that such an answer is conclusive, and the bill must be dismissed, unless the answer be overcome by the testimony of two disinterested witnesses, or one disinterested witness and corroborative circumstances; and that the bill charges fraud does not change the rule: Brawdy v. Brawdy, 7 Pa. 159; Eberly v. Groff, 21 Pa. 251; Audenreid’s App., 89 Pa. 120; Campbell v. Patterson, 95 Pa. 453; Nulton’s App., 103 Pa. 286; Lance v. Coal Co., 16 Phila. 38; Lynch’s App., 97 Pa. 353; Hartley’s App., 103 Pa. 23; Light’s App., 24 Pa. 180. 4. The master having found that there was no collusion between Boyer and Petery, the breach of trust of Boyer, if any there was, cannot be visited upon Petery. The master has undertaken to punish Petery and to rob him of his whole land, not for any wrong attributed to him, but simply because Boyer, who was only a half owner under Petery, was supposed to have violated some rule of public policy. This was clearly error: Kunes v. McCloskey, 115 Pa. 461; Morio’s App., 4 Penny. 408; Price v. Barrington, 3 McN. & Gr. 486; Wilde v. Gibson, 1 H. of L. 605. 5. Finally, we submit that the complainants are not entitled to a decree, because they have not refunded, or offered to refund, the purchase money paid by Petery. True, where actual fraud is proven it is not necessary to refund the money; but in cases of constructive fraud, as for example between trustee and cestui que trust, the party seeking to set aside a sale on that ground must first pay back or tender to the purchaser what he has paid for the title: Gilbert v. Hoffman, 2 W. 66; Cleavinger v. Reimar, 3 W. & S. 486; McCaskey v. Graff, 23 Pa. 321; Nulton’s App., 103 Pa. 297. 1. The finding of the master in this case in favor of the plaintiff, approved by the court below, based upon the conclusion that Petery and Boyer were guilty of a fraud in law, is a complete answer, both in law and in fact, to the questions raised by the appeal which is presented here by the defendants in the equity proceeding in the court below. But, if this were not so, the prayer of the county for equitable relief in the premises must be sustained, on the ground that, under the evidence produced before the master, the purchase by Boyer and Petery of the tax title in question was fraudulent in point of fact as well as in law. 2. All the cases cited in defendants’ paper book in support of the proposition that this is an ejectment bill, will be found to be proceedings in equity by parties out of possession of real estate against parties in possession, and as neither of the parties to this bill are in possession of the C. North tract, the principle of those cases cannot apply. There must be such a state of facts as would support ejectment existing between the parties to a bill, before a bill be dismissed as an ejectment bill. 8. When the county accepted Petery’s bid at the auction and he signed the conditions of sale, there came into existence an executory contract between the county and Petery for the sale and purchase of this title; a contract executory as to both parties to it, each having something to do before the contract became an executed one; and between the auction and the delivery of the deed, no property passed in law or equity. Whilst this executory contract existed, Boyer stepped in and became a party to it, in violation of the statute prohibiting county commissioners from “being concerned in any contract .....made or undertaken under the authority of the county commissioners: ” Section 43, act of April 15, 1834, P. L. 540. 4. Where once a fraud has been committed, not only is the person who committed the fraud, precluded from deriving any benefit from it, but every innocent person is so likewise, unless he has innocently acquired a subsequent interest; for a third person by seeking to derive any benefit under such a transaction, or to retain any benefit resulting therefrom, becomes partieeps eriminis, however innocent of the fraud in the beginning: Perry on Trusts, § 172; Rosenberger’s App., 26 Pa. 67 ; Paul v. Squibb, 12 Pa. 296; Dyer v. Shurtleff, 112 Mass. 165; Terwilliger v. Brown, 44 N. Y. 237; Cumberland Coal Co. v. Sherman, 30 Barb. 553. 5. The sixth assignment of error relates to a matter that was not brought to the attention either of the master or the court below, by any exception; and, if the rule the defendants ask to have applied to plaintiff be correct, then this matter of the failure of the county to offer Petery and Boyer the four dollars and a half which they have paid for their alleged title to the C. North tract cannot he considered upon this appeal. But plaintiff apprehends that in view of the fact, that the county is able to refund this money, the decree asked for will not be denied, but modified, if necessary, so that no injustice be done. The rule in equity is that an ability to refund, which can be enforced by a decree, is all that is necessary.
129 Pa. 138Burns v. Commonwealth (1889)
ERROR TO THE COURT OE QUARTER SESSIONS OE nr.AIR. COUNTY. No. 417 January Term 1889, Sup. Ct.; court below, No. 19 January Term 1889, Q. S. On January 15,1889, the grand jury returned as a true bill an indictment drawn under § 94, act of March 31, 1860, P. L. 405, charging that David Burns and Nettie Burns “ maliciously, by force and fraud, did lead, take and carry away, and decoy and entice away a child under the age of ten years, to wit: Maud E. Gregory, two and one half years old, the daughter of Mrs. Delilah Gregory, with intent to deprive its parent, the said Mrs. Delilah Gregory, she having the lawful charge and care of said child, of the possession of said child,” etc. The defendants pleaded not guilty. At the trial on January 24, 1889, it appeared that A. B. Gregory and his wife, Delilah, separated on November 19,1888, Mrs. Gregory going to her father’s and taking Maud E. Gregory, their only child, with her. About November 17th, Mr. Gregory, alleging that he was ill, sent for the child, and his •wife returned with it. There was no reconciliation, and her visit was to be but temporary. The commonwealth introduced testimony to show that as soon as the child was brought to his house, Mr. Gregory recovered from his illness and took the child to a room to which Mrs. Gregory was denied access; that in a short time he took the child to Mr. and Mrs. Burns, Mrs. Burns being his sister; that every effort of Mrs. Gregory to regain possession of it, by writ of habeas corpus and otherwise, failed, and about December 13, 1888, Mrs. Burns took the child with her on the train to Tyrone, where she was met by Mr. Gregory who took it and left the state with it. The court, Dean, P. J., charged the jury as follows : From the evidence on the part of the commonwealth, it seems too plain to admit of any doubt that the father of this child did, by an artifice or trick unworthy of a husband and father, get possession of this child from its mother. The child was peaceably in her custody, and there is not a single word of evidence tending to show that she was not an entirely competent person to have the custody of a child, and especially of her own child of tender years. It is proven here, and not denied on the part of the defendants, that A. B. Gergory did get this child against the consent of its mother; that he did maintain possession of it, and did leave the jurisdiction of the court, taking it with him out of the jurisdiction of the court and out of the commonwealth, so that it cannot now be' had. He was guilty most clearly under this act, and if he were here and on trial on this evidence, as it is now developed, and not answered so far as he is concerned, he would clearly be guilty of having abducted this child out of the custody of the parent in whose peaceable and rightful custody it was, no matter what might have been the determination on the hearing of the writ of habeas corpus. The mother had the child, and it was taken from her; he had no right to take it in that way, and the law will not countenance any such method. The only question here is, did the defendants, or either of them, aid and abet him in taking this child from its mother ? In a misdemeanor there are no accessories before the fact. The man who acts in the commission of a misdemeanor, and those who stand by and in any way aid or encourage him, are all equally guilty. Did these defendants, or either of them, aid or abet A. B. Gregory in taking this child from its mother, in leading it away from her and keeping it away ? The commonwealth alleges that-at the time the child was taken to the other part of the house and the door was locked, Mrs. Burns was there on the other side of the door, and that she knew how the child had been obtained; and the commonwealth asks you to infer from her acts, as well as from her failure to act, that she was, in the inception of the matter, aiding and abetting her brother. It is alleged that the child was afterwards found in her possession; that she seemed to be taking care of it and aiding her brother, its father, to carry it. up and down the railroad between Altoona and Tyrone; and that she acted in a peculiar manner, leaving home and returning at unseasonable hours, and otherwise demeaning herself in such manner as to indicate a knowledge on her part of an attempt to keep the child from its mother, and an effort on her part to aid the father in so doing. You have heard the testimony of the conductors and other witnesses as to the movements of Mrs. Burns on the railroad, and at Tyrone and elsewhere. It is alleged, further, that both she and her husband falsified to the sheriff, at the time he served the writ of habeas corpus, as to the whereabouts of Gregory and as to their knowledge of the child, indicating on their part a guilty knowledge, and pointing to an attempt to aid him in the abduction of this child. It is also alleged that after this prosecution was instituted Mrs. Burns displayed a knowledge of the child’s whereabouts, and exercised a power over it, such as could not be obtained innocently; and that she offered to have the child brought back if the suit against her was settled, at the same time threatening that its mother would never see it again alive if the suit was not settled. On the other hand, the defendants swear that they did not assist in taking this child away, and David Burns says that so far as he is concerned, he had nothing to do with it; that he knew nothing of his wife’s trip to Tyrone with the child, nor anything of any attempt or desire on the part of his brother-in-law, Gregory, to take the child away. Mrs. Burns says she rendered to the child only such assistance as it would be natural in a woman to render to her brother’s child, and that when the child needed any attention from her she rendered it because the mother was not there to do it; as she would have done to anybody’s child under similar circumstances, without any intention on her part to aid her brother in wrongfully taking this child out of the possession of its mother, or of aiding him in evading the process and defying the power of the court. You have heard the testimony adduced by the defendants, as well as that offered on the part of the commonwealth, tending to show guilt on their part, as the commonwealth claims, and the whole case is with you. Clearly the conduct of this man Gregory has been most defiant, wicked and outrageous. He has acted in such a manner as to call for severe punishment, if the law can seize him; but he has thus far successfully evaded the process of the court and trial on the warrant of arrest issued against him. But whatever may be his guilt, the question for you is, not how guilty he was, but was he, in his guilty conduct, aided and abetted by his brother-in-law and sister ? Did they render him assistance, knowing they were aiding to lead away and keep away this child from the custody of its mother, or from the custody of the law, after the writ of habeas corpus was issued ? The writ was gotten out on the suggestion of the mother, and only for the purpose of restoring the child to her possession; and the condition or status of the case is not materially changed by reason of the writ of habeas corpus, which did not give to Gregory, or to any one aiding him, immunity from punishment for taking away the child. If the evidence satisfies you beyond a reasonable doubt that the defendants or either of them aided or abetted this man Gregory in taking this child away, and keeping it away, as charged by the commonwealth, they or that one of them is guilty, and should be so found. If you have a reasonable doubt as to the guilt of both, then you should find a verdict of not guilty. They are entitled to the benefit of any reasonable doubt as to their guilt. The court has been requested by the counsel for the defendants to say to the jury: 1. That there is no evidence to sustain a conviction on this indictment; as the evidence of the commonwealth, in so far as it affects either of the defendants, shows that the custody of this child was in A. B. Gregory, at the time the writ of habeas corpus was issued, December 10, 1888; and that the defendants had no control over it. Answer: This point is denied.1 2. The act of assembly does not intend to make a father liable to its penalties for taking a child of his own, unless an order or decree of some competent court having jurisdiction of the subject matter was first made, giving the custody and control to the mother or some other person; and if the father, A. B. Gregory, could not be guilty under the act if he were indicted, it follows that there can be no accessories. Answer: This point is denied; it is not the law.3 3. That upon the whole evidence in this case, the defendants must be acquitted. Answer: This is denied. There is evidence here for your consideration; and, as you determine the truth of it, so will you bring in your verdict.3 The jury returned a verdict of guilty, upon which judgment was subsequently passed. The defendants, having obtained an allowance thereof, then took this writ, assigning as error: 1-3. The answers to defendant’s points.1 to 3
129 Pa. 146Tarbell v. School D. of Montrose Borough (1889)
from the decree of the court of common fleas of SUSQUEHANNA COUNTY, IN EQUITY. No. 102 July Term 1890, Supt. Held: and a majority vote in favor thereof had; that they had prepared and issued bonds to raise money for the purpose, and the said bonds had already been negotiated, the entire issue sold at par, and the proceeds were deposited to the’ credit of the district; that the directors, defendants, had considered the propriety of erecting the…
129 Pa. 151DeTurk v. Commonwealth (1889)
1. Under § 2, article XU. of tbe' constitution of Pennsylvania, the offices of postmaster and county commissioner are incompatible offices, although the legislature has not as yet declared them so to be. 2. The titles to the two offices npt being from a common source, an acceptance of the office of county commissioner by one who holds an appointment as postmaster, does not create a vacancy in the latter office. 3. But where a postmaster has accepted the office of county commissioner, and after proceedings on quo warranto begun, yet before answer filed, he resigns the former office, judgment of ouster as to the latter may not then be entered: Commonwealth v. Pyle, 18 Pa. 519, explained and distinguished.
129 Pa. 162Palmer v. Farrell (1889)
EKE OR TO THE COURT OE COMMON PLEAS NO. 8 OE PHILADELPHIA COUNTY. No. 296 January Term 1888, Sup. Ct.; court below, No. 110 June Term 1885, C. P. No. 8. On May 12,1885, Lydia P. Palmer, and by subsequent substitution, Alfred Palmer in her stead, William H. Force, Jr., and Hannah Force, his wife, formerly Hannah Palmer, in right of said wife, brought ejectment against Hamilton Farrell and Ann F. Farrell, his wife, in right of said wife, to recover about 26 acres of land in the 27th (formerly the 24th) ward, Philadelphia; the land lying on the west side of the Schuylkill, about opposite Point Breeze, and about four miles from Independence Hall.* Issue. The writ was not printed, but the land was described in the plaintiff’s paper book as being “ bounded on the north by a line run upon the artificial river bank, on the south by low-water mark, and on the east and west by the projection to low-water mark of the side lines of the ten-acre meadow lot, in front of which it lies.” At the trial on November 19, 1885, it was made to appear that the common source of title was Aaron Palmer, to whom on September 17,1791, Nathan Jones conveyed the ten-acre meadow lot, with the appurtenances. Aaron Palmer died in 1817, leaving a will whereby, inter alia, he devised the ten-acre lot to his widow and daughter Eliza for life, remainder to his daughters Hannah Jones and Mary Palmer, share and share alike, in fee. The land in controversy, being what is commonly called the flats, or the mud flats, was not expressly mentioned, or described in said deed or will, but it was admitted that both the meadow land and flats had been in the tenure and possession of Aaron Palmer and his successors in title from 1791 to May 13, 1864. The widow of Aaron Palmer died in 1832, and the daughter Eliza, in January, 1864; whereupon the possession of the meadow land, with the outlying flats, passed to Mary Palmer and Lydia P. Palmer, the latter being the daughter and sole heir of Hannah Jones then deceased. By deed dated May 13, 1864, Charles Palmer and Lydia P., his wife, and John Gr. Palmer and Mary, his wife, conveyed the ten-acre meadow lot to Hamilton Farrell, one of the defendants, in fee, the deed containing the following description: “Bounded and described according to a survey made thereof by James Miller on the 26th day of April, A. D. 1864, as follows, to wit: Beginning at a point on the bank of the river Schuylkill, at the corner of ground of Joseph Gibson; thence along the same and the middle of Upper Two creek N. 5° 17' E., 16.47 perches to a point in the middle of said creek; thence N. 21° 25' E., 3.91 perches to a point in the middle of said creek; thence N. 38° 42' E., 21.41 perches to a point in the middle of said creek, thence S. 87° 27' E., 21.59 perches to a point in the middle of said creek; thence N. 55° 10' E., 4.25 perches to a point in the middle of ditch running between this lot and other ground of the said Hamilton Farrell; thence S. 81° 57' E., 2.25 perches to a point in the middle of said ditch; thence S. 40° 20' E., 39.92 perches to a point on the bank of the said river Schuylkill; thence S. 85° 45' W., 59.47 perches to a point on said'bank, and thence S. 76° 58' W., 9.82 perches to the place of beginning, containing ten acres and sixty-two perches of land more or less.” According to the abstracts, Alfred Palmer claimed the undivided one half interest in the-flats, the land in dispute, under a deed therefor from his mother, Lydia P. Palmer, dated January 7,1887. The other plaintiff, Hannah Force, claimed the other undivided one half interest, — one eighth thereof as one of the children and heirs at law of Mary Palmer, who with John G. Palmer, her husband, died in 1878, and as grantee by deed'dated May 11,1885, of the undivided three eighths interest of the other children. The defendant, Ann F. Farrell, claimed the premises under and by virtue of the deed of May 18, 1864, as the grantee of her husband, Hamilton Farrell, through the medium of Robert Paschall, trustee, by deeds both dated April 14, 1885. The plaintiffs having read in evidence the deeds referred to, dated May 13, 1864, and April 14, 1885, called Lydia P. Palmer, and said: We propose to prove by this witness that the defendants entered into possession of the premises in controversy under claim of title through the said deed John G. Palmer et al. to Hamilton Farrell, dated May 13, 1864, but that in reality defendants’ possession under said deed was an intrusion. Witness objected to by counsel for the defendants, because she was one of the grantors in said deed of j!864^and that alNthe other grantors were dead and .therefore, under the law, incompetent. Counsel for the plaintiffs admitted the facts so averred by the counsel for the defendants, and stated that the witness had conveyed all hor right, title and interest in the premises in controversy to Alfred Palmer, one of the plaintiffs, by deed containing no covenant but that of special warranty, dated January 8, 1887, and produced the deed. By the court: Objection sustained, offer refused; exception.1 Then, aft;er having put in evidence the deed from Nathan Jones-to fiaron Palmer dated September 17, 1791, and the other facjis heretofore given relating to the tenure and possession of Aaron Palmer and his successors in title from the date of thatMeed to May 13, 1864, and the character of the land in controversy as lying between high- and low-water mark immedia;teéíy in front of the ten-acre meadow lot, called Henry PalFiier and offered to prove by him: That the grantors in the deed of May 13,1864, made known to the grantee, Hamilton Farrell, before the sale to him, their intention to reserve the flats in controversy; that they refused to sign a deed which, by its express terms, conveyed their title to low-water mark, and that the deed was re-drawn and the lines drawn upon the bank in order to meet that objection; that the first deed was drawn by Mr. Farrell’s attorney and conveyancer to whom the grantors made known their objection; that the second deed was drawn by the same attorney and conveyancer, and that the second deed is the deed under which defendants claim their title to the flats in controversy; and also that the land described in the deed of 1864 was sold at public auction to Hamilton Farrell, by the acre, subject to a survey which was afterwards made. Counsel for the defendants objected to the foregoing offer, on the ground that it was an attempt to contradict the deed of the Palmers to Farrell, dated May 13, 1864, already offered in evidence by plaintiffs, which passed the title to the flats in controversy. By the court: Objection sustained, offer refused; exception.8 The plaintiffs then rested. -' 'On motiono'f defendants, the court, Finletteb, P. J., entered a judgment of compulsofyumnsmt, with leave, etc. Subsequently, a motion to take off the nonsuit, with reasons, was filed, and rule granted. On January 21, 1888, the rule granted was discharged, without opinion-filed, when the plaintiffs took this writ, assigning for error: 1, 2. The refusal of plaintiffs’ offers.1 8 3. The order directing judgment of nonsuit. 4. The refusal to vacate said judgment. s 1. Flats lying between high- and low-water mark,(which ordinarily pass by a deed of the abutting fast land, pass's as a parcel thereof, and not as an appurtenance. Such flats,xthough not included within the lines of the deed, ordinarily pi^ss by virtue of a presumed intention on the part of the grantor. NE>ut such deed may in truth have been made pursuant to a contra^ ry intention: parol evidence of this fact is admissible to rebut said presumption and to confine the operation of the deed to the lines strictly expressed: Codman v. Winslow, 10 Mass. 149; Risdon v. Philadelphia, 18 W. N. 78; Marquis of Salisbury v. Railway Co., 5 C. B. (N. S.) 174; Stanley v. Green, 12 Cal. 162; Putnam v. Bond, 100 Mass. 58; Waterman v. Johnson, 18 Pick. 263. The flats pass, if at all, by presumption, and not by description: Jones v. Janney, 8 W. & S. 443; Paul v. Carver, 26 Pa. 223; Knight v. Wilder, 2 Cush. 199. 2. Extraneous evidence is always necessary and admissible to locate the descriptive boundary of the deed, irrespective of uncertainty. It not only resolves ambiguity and doubt, but may even control the plainly indicated boundary of the deed, in order to give effect to the manifest intent. Plaintiffs’ evidence materializes the exact description of the deed, and contradicts only the extraneous presumption: Burkholder v. MarkLey, 98 Pa. 37; Blasdell v. Bissell, 6 Pa. 259; Welles v. Yates, 44 N. Y. 525; Brown v. Willey, 42 Pa. 209; Naglee v. Ingersoll, 7 Pa. 185; Gratz v. Beates, 45 Pa. 504; Abbott v. Abbott, 51 Me. 581; Opdyke v. Stevens, 3 Dutch. 88; Caldwell v. Fulton, 31 Pa. 489. 3. Lydia P. Palmer was competent within the exception to clause (e), § 5, act of May 23, 1887, P. L. 158; Ash v. Guie, 97 Pa. 493; Hill v. Truby, 117 Pa. 320; Adams v. Bleakley, 117 Pa. 283.. She was not interested, except for costs, and this did not incapacitate her. The act of 1887, though repealing all- prior acts on "the subjects therein treated, is intended simply as a compilation or codification of the same, in the light of the intervening decisions. 1. By a conveyance of the meadow running to the bank, which bank was the high-water mark? the flats and everything to low-water mark would pass also: Jones v. Janney, 8 W. & S. 439; Coovert v. O’Conner, 8 W. 470; Ball v. Slack, 2 Wh. 508; Patterson v. Harlan, 124 Pa. 67. 2. Under the act of May 23, 1887, Lydia Palmer could not be called as a witness. Hamilton Farrell was clearly incompetent, and why should one of the plaintiffs be permitted to testify? The deed of January 8, 1887, was executed merely for the purpose of making Lydia Palmer competent, and as that fact is apparent she is clearly incompetent: Ewing v. Ewing, 96 Pa. 881. 3. The recital in the deed from the heirs of Aaron Palmer to Farrell, conveying all the interest, right and title which Aaron Palmer had by his deed from Nathan Jones, is conclusive that they had conveyed all the land in which they had any interest, and as they could not contradict said deed, they are governed by the recitals, and therefore no right of action accrued: Stoever v. Whitman, 6 Binn. 416 ; Reigart v. Ehler, 1 Wh. 18; James v. Letzler, 8 W. & S. 192; Schuylkill etc. Imp. Co. v. McCreary, 58 Pa. 304.
129 Pa. 173Hessel v. Johnson (1889)
ERROR TO THE COURT OE COMMON PLEAS NO. 4 OE PHILADELPHIA COUNTY. No. 311 January Term 1889, Sup. Ct.; court below, No. 534 March Term 1888, C. P. No. 4. On March 14, 1888, Henry Hessel issued a writ of replevin against M. T. Johnson, agent of H. M. and Mary Bell Allen, and R. D. Thompson, bailiff, for the recovery of goods which had been distrained for rent in arrear due by Clinton S. Fritz for premises at the northwest corner of Tenth and Race streets. The writ was served and the property delivered by the sheriff to the plaintiff. To the plaintiff’s declaration defendant Johnson filed an avowry and cognizance, setting out that the distress was lawfully made for rent in arrear by Fritz under a lease made by the defendant to Fritz. To this avowry and cognizance the plaintiff filed several pleas, demurrers to which were sustained as to all except one, which was as follows: “ That no part of the said goods in said declaration mentioned were in and upon the messuage or tenement situate on the northwest corner of Tenth and Race streets, in the city of Philadelphia, which were held and enjoyed by Clinton S. Fritz, with the appurtenances, as tenant thereof to the said Moses T. Johnson, as in the said avowry and cognizance mentioned, at .the time when the goods and chattels-were distrained for rent in arrears to Moses T. Johnson, as in the said avowry and cognizance mentioned, and this the said plaintiff is ready to verify.” Upon this plea the defendant joined issue. At the trial on October 30,1888, the defendant, assuming the burden of proof, called M. T. Johnson, and showed that on October 19, 1887, as agent for Horatio M. and Mary Bell Allen, he had executed a lease of the premises at the northwest corner of Tenth and Race streets to Clinton S. Fritz, for the term of two years from November 1, 1887, at the rent of $700 per annum, payable in equal portions monthly in advance; that when four months rent was due and unpaid, amounting to $233.32, the property replevied was found upon the premises and was distrained for said rent. On cross-examination, the witness testified that Fritz, his tenant, was never in possession of the store and basement of the building; that when he made the lease to Fritz, Mr. Hessel, the plaintiff, was in possession of the store and basement, as a sub-tenant of James P. Rossiter ; that he had rented the premises to Rossiter on a lease which had expired on April 1,1888, and Rossiter had held over under the terms of the lease for another year, but in October, 1887, Rossiter had surrendered his lease and the witness then leased to Fritz; that Rossiter had permission in his lease to sub-let tbe first floor, and witness “presumed” he had sublet to Hessel, but “ I do not know anything about Hessel; ” and that when witness made the lease to Fritz, he made it on the understanding that he could give him possession of the store and basement “ on the first of the year.” It was then shown that the value of'the goods distrained and replevied was about $300. The defendant then rested. The plaintiff, so far as the paper books showed, offered no testimony, but it was stated in the paper books that the lease made by Johnson, agent, to Rossiter, was for fifteen months from January 1, 1886, at $700 per annum, with a provision for holding over. No points for instructions were presented, and the court, Arnold, J., charged the jury: All the questions of fact, usually given to a jury, are agreed upon in this case; i. e., that the goods levied on were of the value at least of $300, and that the rent due was $233.32, on the first day of March; your verdict will therefore be for the defendant, and that the rent in arrear was $233.32, and the value of the goods replevied $300. Exception.8 The jury returned a verdict for the defendant, finding the rent in arrear at $233.32; value of the goods, $300. A rule for a new trial having been argued before the court in banc, on December 15, 1888, the following opinion was filed, Arnold, J.: Moses T. Johnson, agent "for Horatio M. and Mary Bell Allen, on January 22, 1886, leased a messuage or tenement, in the city of Philadelphia, to James P. Rossiter for the term of fifteen months from January 1, 1886, at the rent of $700 per annum, or $58.33 per month, in advance. Rossiter held over, and, on October 20, 1887, by writing, surrendered his lease and term as of November 1,1887. On October 19,1887, Johnson, agent, leased the same premises to Clinton S. Fritz for two years, from November 1, 1887, at the rent of $700 per annum, payable in equal monthly payments in advance. Hessel, the plaintiff, was sub-tenant of part of the demised premises under Rossiter. On March 9, 1888, Johnson distrained on goods on the leased premises for four months’ rent, whereupon Hessel brought this action of replevin, and the question is, whether the distraint can be sustained. In Brown v. Butler, 4 Phila. 71, it was decided that a surrender by a tenant, during the year, would not justify the landlord in ejecting a sub-tenant lawfully in possession. But the decision does not go to the length we would have to go, in saying that the sub-tenant may not only remain in possession, but also without being liable for rent. True, he may stand upon his right to remain until the end of the term at no greater rent than was demandable under the lease to the tenant under whom he held; but it is no less true that if he retain possession, it must be at the peril of having his goods distrained upon for the payment of rent due for the whole of the premises, although he may occupy but part. That the term has come to an end by surrender, or otherwise, makes no difference: Whiting v. Lake, 91 Pa. 349. The sub-tenant cannot hold possession without subjecting his goods to distraint for at least as much rent as was reserved out of the property when he entered into possession; and as that is the same in the old and the new leases in this case, the plaintiff’s goods are liable to distraint, either as the goods of a sub-tenant or a stranger: Whiting v. Lake, supra, and cases cited therein. The rule for a new trial is discharged. Thereupon the plaintiff took this writ, specifying that the court erred: 2. In the charge to the jury.8 3. In directing the jury to find for the defendant, in their verdict, on all the facts generally, subject to the decision of the court in banc upon the questions of law. Rossiter, by the surrender of his lease on November 1, 1887, could not prejudice Hessel as to the enjoyment of his possession until April 1, 1888 : Brown v. Butler, 4 Phila. 71; Whiting v. Lake, 91 Pa. 349. To sustain an avowry for rent in arrear, the relation of landlord and tenant must be shown to exist between the parties : Helser v. Pott, 3 Pa. 179. In this case there was no relation of landlord and tenant between Johnson and Hessel. It appears from the record that the only question for trial was, whether the goods were taken on' the demised premises; neither the lease nor the rent in arrear being denied in the pleading. The evidence was clear that the plaintiff’s goods had been distrained upon on the premises stated in the avowry as the demised premises. There was no pretence of evidence to the contrary, nor was there any dispute as to the amount of rent due, or as to the value of the goods. Therefore, the learned judge rightly instructed the jury to find a verdict for defendant, in accordance with this undisputed testimony. Moreover, there was no evidence that Hessel was a tenant of Rossiter. If he had been, he would now be the tenant of Fritz, who had stepped into Rossiter’s shoes, as lessee of the whole building: Tilford v. Fleming, 64 Pa. 300.
129 Pa. 181Pennsylvania R. v. Duncan's Admr. (1889)
1. Exemption of railroad corporations from the operation of future general enactments, either constitutional or legislative, cannot exist unless given expressly or by an implication equally clear with express language; wherefore, the mere fact that the charter of a company imposes upon it no liability for consequential injuries, arising from the construction or enlargement of its works, does not give rise to a contract that it shall always be exempt from such liability. 2. The Pennsylvania Railroad Company, incorporated by the act of April 13, 1846, P. L. 312, is subject to the provisions of § 8, articleXVI. of the constitution of Pennsylvania of 1874, and is liable thereunder to make compensation for property injured or destroyed by the construction or enlargement of its works or improvements in the subsequent exercise of the right of eminent domain, although there be.no physical taking of such property or any portion thereof. 3. This liability exists as to the elevated roadway constructed in 1881 by the said railroad company upon Filbert street, Philadelphia, as a branch of the Philadelphia & Columbia railroad, purchased by said company on the sale under the provisions of the act of May 16, 1867, P. L. 619, notwithstanding that by the terms of the purchase this road was to be held by the company under its original charter, which, as then inter- ' preted by the courts of the state, imposed no such liability.
129 Pa. 201Hoover v. Hoover (1889)
129 Pa. 206Harrisburg Elec. L. Co. v. Goodman (1889)
129 Pa. 213City of Harrisburg v. McCormick (1889)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP DAUPHIN COUNTY. No. 21 May Term 1888, Sup. Ct.; court below, No. 545 November Term 1886, C. P. On November 13, 1886, a writ of scire facias was issued by tbe city of Harrisburg upon a municipal claim, filed on July 15, 1885, for 1446.05, assessed for water pipe, under the foot-front rule, against an abutting lot belonging to the estate of James McCormick, deceased. On January 14,1887, James McCormick, one of the trustees of the defendant estate, made and filed an affidavit of defence which averred: “ The lot of ground against which the lien for water pipe, amounting to 1446.05, is filed, is a narrow, triangular strip, about 31 feet wide at the one end, and running thence along Ninth street, about 405 feet, diminishing in width' until it reaches a point. A part of this land is claimed by the Pennsylvania Canal Company, and the title is in dispute. The defendant is advised by counsel and avers that the foot-front assessment,' on which the lien is based, as applied to a piece of ground of this description is unjust, inequitable and not warranted by law, the whole property in the opinion of the defendant, not being worth the amount assessed against it. The defendant, therefore, alleging that proof will be given, on. the trial of the cause, of the facts averred in this affidavit, prays for judgment against the plaintiff that it cannot maintain its lien against the property; and the defendant believes and avers that the act of May 23, 1874, under which the lien referred to was filed, is unconstitutional and void. Upon a rule for judgment for want of a sufficient affidavit of defence, the court, Semonton, P. J., on April 28, 1888, filed the following opinion: This case comes before us on a motion for judgment for' want of a sufficient affidavit of defence. Two grounds of defence are stated in the affidavit: 1. That the act of May 28,1874, P. L. 266, under which the assessment was made and the lien filed is unconstitutional and void. This is conceded on behalf of the plaintiff, but it is claimed that the assessment and lien were validated by the act of May 17, 1887, P. L. 117, and the act of May 24, 1887, P. L. 261. There is abundant authority for this claim: Grim v. Weissenberg School District, 57 Pa. 433; Hewitt’s App., 88 Pa. 55; and this defence must fail. 2. The affidavit avers: “ The defendant is advised by counsel and avers that the foot-front assessment, as applied to a piece of ground of this description, is unjust and inequitable and not warranted by law, the whole property, in the opinion of the defendant, not being worth the amount assessed against it.” It is also stated in the affidavit that the ground assessed is a triangular lot abutting on three streets, about 31 feet wide at one end, and running to a point at the distance of 405 feet, and the assessment is for laying water pipe along this whole distance at $1.10 per foot, amounting to about $446. The opinion of the affiant may therefore very readily be thought correct; but we are unable to see how, under the law, the facts can constitute a valid defence. The late case of Michener v. City of Philadelphia, 118 Pa. 535, re-affirms the oft declared doctrine of the constitutionality of the per foot-front rule of assessment, and declares that such assessments are “ a species of taxation, and all taxation is presumed to be for the benefit, directly or indirectly, of the taxpayer or his property.” And further: “ It would be intolerable if in every instance of special taxation the question of benefits could be thrown into the jury box.” On the authority of the principles thus clearly stated we must adjudge the affidavit of defence insufficient. Judgment is therefore directed to be entered for the plaintiff, the amount to be liquidated by the prothonotary. Judgment was accordingly entered for the plaintiff for $520.61, whereupon the defendant took this appeal, alleging that the court erred: 1. In directing judgment to be entered for the plaintiff. 2. In ruling that the act of May 17,1887, P. L. 117, and the act of May 24, 1887, P. L. 261, validated the assessment and lien made and entered under the act of May 28,1874.* 3. In ruling that the foot-front rule of assessment, as applied to the property mentioned in the affidavit, was legal and valid. Cdunsel cited: Schenley v. Allegheny City, 36 Pa. 29; Hammett v. Philadelphia, 65 Pa. 146; Seely v. Pittsburgh, 82 Pa. 360; Craig v. Philadelphia, 89 Pa. 265. Counsel cited: Butler’s App., 73 Pa. 451; Stewart v. Philadelphia, 4 Cent. R. 674; In re Centre Street, 115 Pa. 247; Michener v. Philadelphia, 118 Pa. 541.
129 Pa. 217Commonwealth v. Am. Bell Teleph. Co. (1889)
No. 33 May Term Í888, Sup. Ct.; court below, No. 395 August Term 1885, C. P. On February 19, 1885, the auditor general stated the following account against the American Bell Telephone Company for taxes for the year 1884, which was approved by the state treasurer April 2, 1885: For tax on capital stock, per acts of March 20, 1877, and June 7, 1879, for the year ending first Monday of November, 1884, as per report herewith filed.
129 Pa. 229Zimmerman v. Zimmerman (1889)
1. The law implies no contract to compensate for personal services rendered by a son to a father, but, even though at the time of rendering them the son was not a member of his father’s family, the law exacts, as the basis of such a claim, proof of an actual contract, definite in its terms. 2. To support a claim for nursing or other services such as filial duty and common humanity require a son to render, there must be better proof than loose declarations of gratitude and of an intention to compensate, made by afather in his last sickness: Neel v. Neel, 59 Pa. 347; Titman v. Titman, 64 Pa. 480; distinguished.
129 Pa. 238Levis v. Lochiel I. & S. Works (1889)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY. No. 7 May Term 1889, Sup. Ct.; court below, No. 453 September Term 1887, C. P. On September 9,1887, Henry Levis, trading as Henry Levis & Co., brought replevin for 475 pieces of old iron rails, against the Lochiel Iron and Steel Works. The defendant gave bond and retained the iron, subsequently pleading non cepit and property. Issue. At the trial on May 17, 1888, it appeared that in 1887 the defendant had purchased from the plaintiff about 1079 tons of old iron rails, paying in cash about $3,400, and giving its notes payable on demand for the balance, amounting to $24,850.05. The iron was shipped to plaintiff’s agent and retained by him as collateral security for the payment of the notes. The defendant paid $3,000 on the notes, and received about 125 tons of the iron rails. In August or September, 1887, the plaintiff demanded payment of the balance due on the notes, which was not made. Thereupon the plaintiff, under authority contained in the notes, proceeded to sell the iron in order to1 obtain payment of the money due thereon. In attempting to deliver the iron sold, plaintiff was compelled to cross defendant’s premises, when 475 pieces of the iron were seized by the defendant, who claimed that they had not received the quantity of iron paid for. At the conclusion of the testimony the court charged the jury as follows: Although a good deal of time has been consumed in the trial of this case, it is in reality within a rather narrow compass. It is in form an action of replevin. In reality and substance it is an action to recover a balance claimed to be due on certain notes, and the substantial question in the case is, what amount, if any, is due to the holder of these notes. The notes have been given in evidence and you will have them with you when you retire to your room. From these notes, and the testimony in the case, it appears that the plaintiffs sold to the defendants certain iron, for which the defendants paid a comparatively small amount of the price in cash, and gave their notes for the balance, and in those notes they provide that the plaintiffs are to hold the iron so sold as collateral security for the payment of the notes. All that appears by the facts and the testimony, and practically is not in dispute. Part of that iron so held was taken out of the possession of the plaintiffs, without their consent, by the defendants. You have heard detailed by the witnesses the manner in which it was taken, and we do not intend to go into that. It is comparatively of little importance. It cannot bo controverted that the iron was taken without the consent of the plaintiffs. The plaintiffs complain of the manner in which it was taken, but that is of little consequence in this case. The question for you to determine is, whether, after that iron was taken, there was still as much iron left in possession of the plaintiffs as' was worth, at the price fixed upon it, the amount due on the notes, because, whenever the notes were paid the iron belonged to the defendants. If the defendants paid the notes they had a right to take the iron they owned, but it was subject to the right of the plaintiffs to hold it until the debt was paid. * * * * * * * * You have heard the testimony as to the sale of the iron by the plaintiffs. We have said that the iron belonged to the defendants when it was paid for, as it was only pledged to the plaintiffs. Part of the agreement was that if the notes were not paid when they were due, the plaintiffs had a right to sell the iron and credit the amount. If you believe the testimony that demand was made for the payment of these notes some time before the iron was sold by the plaintiffs, then they had a right to sell it, because the notes upon their face are due on demand ; and therefore, if the payment of the notes was demand ed they became due, and the condition printed in the notes is that if they are not paid when due, the plaintiffs have a right to sell the iron and credit the proceeds on the notes. The plaintiffs claim that they did that and admit that they did sell the iron, except what the defendants took. You have heard the testimony as to the amount they sold, and as to the price, and according to the calculation, taken from the testimony of the manager of the plaintiffs, it appears that they sold and gave credit for the iron left in their possession after these eighty-two or eighty-three tons were taken, and. applied the proceeds to pay the notes, and that that left a balance due, according to his testimony, of $1,753.78 on, we do not know precisely what date, but it was some time in the fall of 1887; and they claim that amount with interest from the time when the sales were made up to the present date. The defendants claim that there was more than enough iron left, outside of what was taken by them, to pay these notes. If we understand correctly they base that claim partly upon the different prices for the iron. Then there is no dispute as to the prices at which the defendants should account for the iron, viz.: twenty-four and twenty-five dollars, for the street rails, and the T rails. [Part of the agreement between them, it seems, was a contract as to freight, the plaintiffs agreeing that the defendants were only to pay so much per ton for freight, and if the freight charged was over that amount, the plaintiffs were to pay it, or were to collect it from the railroad company and credit it to the defendants; and there is a certain amount of money arising from that source. I believe the defendants claim something like nine hundred dollars. The plaintiffs’ testimony, as we rmderstand it, was that it was something over seven hundred dollars.. The defendants claim to be entitled to credit for that, and the plaintiffs claim that they are not entitled to credit for it, and this is one of the questions to be determined. It appears that some time in April, 1887, an order or letter was directed to the plaintiffs by the defendants, in which they requested the plaintiffs to pay whatever was received from the railroad company to certain other parties. There is nothing on that order to show that it was accepted. There is some evidence in the case that afterwards, in July, one of the plaintiffs was asked whether he had paid that money to the third party, and he said he had not, and that he was holding it as a credit on these margins for the iron. It is testified to by the manager of the plaintiffs that after he received the money from the railroad company he did pay it over to that third party, and the defendants now claim that as he did not pay it over when the order was sent to him, or for so long a time afterwards, and as he said he was holding it on account of this iron transaction, therefore he is not entitled to credit for it in this cause. W e do not think the mere fact of the giving of that order in itself would make the plaintiffs in this case liable to the third party, or would entitle them to a credit in this case, if that were all that was in it. But there is nothing in the way of the jury determining this question, upon the fair rights and equities of the parties. The defendants claim that their rights were fixed on the day they took the iron. But that taking was unlawful in itself, .and could not fix any rights; the defendants could not put the plaintiffs in any worse position by doing that unlawful act, than they were in before; and if it would have been right and fair ■for the defendants to give credit for that payment before this suit was brought, it is right for the jury to give credit for it now.]1 The objection to giving credit for the payment is a strictly technical objection, if in equity it ought to be given. [You are to determine, however, whether that money was actually paid to the third party, the Rock Hill Iron Company. If the money was not paid, if it has not been paid, and if it is still iu the possession of the plaintiffs, then they are bound to give credit for it on these notes. But if it be a fact that the plaintiffs did pay it over, in the absence of any positive recall ■ of that order on the part of the defendants, then defendants’ debt to the third party is paid; and if the defendants’ debt to the third party has actually been paid by the plaintiffs, there is no legal rule that would prevent the plaintiffs from getting the benefit of that payment in this action. The manager of the plaintiffs testified that it was paid. ■ When he was cross-examined on that point he said he had not seen it paid, but had seen the stub of the check that was drawn for its payment, and had seen the receipt the third party had given for the pay•ment. That is all the evidence of this payment before us, and that is some evidence of payment. The witness being the manager or business man of the plaintiff, is competent to testify as he did. If the jury is satisfied that it is paid, then it ought not to go as a credit on these notes, because it went to •pay a debt of the defendants, and if the plaintiffs are charged with.it here they would have to pay it twice. You are to determine how that matter is; whether or not the money was paid to the third party; and if it was, that amount cannot be credited on these notes.] a ******** Unless, then, you think the defendants behaved very badly and took this iron under circumstances of some violent outrage, then your verdict should not charge them for more than the value of the iron. It should be for the amount unpaid, and if you find that the amount is paid in full, then your verdict will, of course, be for the defendants. The defendants ask us to charge as follows: 1. The rights of the parties to this action were fixed at the time of the bringing of the suit, September 9, 1887 ; and if the jury believe that the plaintiff declared to the defendants in July, 1887, that he had not then paid the Rockhill Iron Company claim out of the freights, but was holding that money as additional security for margins, this was a refusal to accept the defendants’ order to pay, given in April, 1887, and the payjment of the order in April, 1888, does not entitle the plaintiff to a credit in this suit for the money so paid. Answer: This is refused. We have instructed you about that.3 2. That there is no evidence from which the jury can find that any money was paid to the Rockhill Iron Company on account of the defendant. Answer: That is also refused, for the reason we have given in the general charge.4 The jury returned a verdict in favor of the plaintiff for $1,935.96. A rule for a new trial having been granted, on June 8, 1888, the court ordered that “if plaintiffs file a remittitur of the sum of $193.65* within ten days from the filing of this opinion, judgment to be entered on the verdict as so reduced on payment of jury fee; otherwise new trial to be granted.” A remittitur having been duly filed, judgment on the verdict was entered on June 15, 1888. Thereupon the defendant took this writ, assigning as error: 1, 2. The portions of.the charge included in [ ] 1 8 3. 4. The answers to defendant’s points.3 4 5. [Omitted, see opinion of the court.]
129 Pa. 244Roads in Londonderry Township (1889)
Nos. 9, 10 May Term 1889, Sup. Ct.; court below, Nos. 6, 7 Road Docket 1888, Q. S. On March 28, 1888, to No. 6 Road Docket 1888, in the court below, was filed the petition of divers citizens of Londonderry township, setting forth that a certain part of a road or street in the village of Port Royal, in said township, which crossed at grade the tracks of the Harrisburg, Portsmouth, Mt. Joy & Lancaster railroad, operated by the Pennsylvania Railroad Company, had become…
129 Pa. 250Estate of Snively (1889)
1. A recognizance for the payment of owelty upon land taken by an heir in an Orphans’ Court partition, is a lien upon the entire estate in the land thus taken, including the interest therein which passed to the recognizor by descent: McCandless’ App., 98Pa. 489, and cases cited. 2. A recognizance given by a married woman for owelty upon land awarded to her in such a proceeding, is no exception to the rule; the extent of the lien of her recognizance is unaffected by her coverture, and there is no analogy between the case and that of a purchase money judgment given by a feme covert. 3. Whether, in a partition proceeding, a married female heir has the right to bid for land independent of her husband, and whether the Orphans’ Court has power to award it to her without the consent and against the protest of her husband, and in disregard of his claim to be allowed to bid for it in her right, not decided. i. Even if such an award be erroneous, the error under the decree will be voidable merely, and upon distribution of the proceeds of the same real estate, sold after the married woman’s death, the regularity of the proceedings as affecting the recognizance given by her cannot be questioned.
129 Pa. 264Hoffeditz v. South. Penn. R. & M. Co. (1889)
Where the owners of land, for a valuable consideration, released a railroad company from all suits, claims, demands and damages by reason of its entry, and the location and construction thereon of its railroad and works connected therewith, such release is a bar to an action by a subsequent lessee of said owners, brought to recover damages for injuries caused by an insufficient culvert constructed prior to the execution of the release.
129 Pa. 268Assigned Estate of Beshler (1889)
129 Pa. 272Wolf v. Ferguson (1889)
(а) Britton held a judgment against Wolf, which was a lien on Wolf’s own land and also on Wolf’s legal title to certain land which he had sold to Ferguson by a contract calling for a deed clear of incumbrances. There was unpaid, on said contract, purchase money to the extent of $1,000.25. (б) Wolf made a deed to Ferguson in execution of his contract, receiving in settlement of the purchase money $200.25 in cash, and Ferguson’s judgment for $800. Wolf assigned this judgment to Hollar in part payment of a certain judgment indebtedness due from Wolf to Hollar, subsequent in lien to Britton’s judgment. Hollar knew the $800 judgment was for purchase money. (o) Wolf’s own land was afterwards sold by the sheriff to Hollar. The proceeds were more than enough to pay Britton, but the sheriff made a special return that Hollar was entitled to the whole proceeds of sale, ignoring Britton’s judgment, although it appeared in the list of liens attached to the return. The record did not show that this return was read in court, but the sale was confirmed. (d) Hollar received a deed from the sheriff and retained the entire proceeds of sale, less costs. The land purchased by Ferguson was then sold by the sheriff under the $800 purchase money judgment held by Hollar, and the proceeds were brought into court for distribution. Britton, Hollar and subsequent lien creditors claimed payment out of the fund, which was insufficient to pay all. 1. By the sheriff’s sale of Wolf's Iand, Britton’s' judgment was paid as to subsequent lien creditors of Ferguson other than Hollar, the Wolf fund being the one primarily liable in equity, and Ferguson’s land sustaining the relation of surety for Wolf. If, therefore, Britton be paid out of the Ferguson fund, the latter’s creditors are entitled to subrogation against the Wolf fund. 2. The auditor having awarded Britton payment out of the Ferguson fund, deducting the amount so awarded from Hollar’s $800 judgment, this award is sustained, under the doctrine of marshaling assets, as simply subrogating Ferguson’s judgment creditors to Britton’s right against the Wolf fund, Britton’s proportion of which was wrongfully in Hollar’s hands. 3. On an appeal from a decree of distribution, made upon an auditor’s report, an assignment of error alleging in general terms that the court erred in confirming the report of the auditor, without stating in what respect or for what reason it erred, is too vague and unsatisfactory to be considered by the Supreme Court. (a) In passing upon exceptions to an auditor’s report, the court below, . after finding additional facts, confirmed the report, allowing the excep.tant fourteen days in which to move for a re-argument or reference back. Without making such motion the exceptant appealed, specifying that the court erred in going outside the report and the testimony, and making up a report without legal evidence.. A The going outside the report was not error, in the absence of anything to show that the court went outside the evidence, and as to this the specification was too vague, in that it did not state what facts the court found without evidence. Moreover, as the appellant did not move for a re-argument or reference back, little weight can be given in the Supreme Court to his complaint of the findings by the court below.
129 Pa. 289Trullinger v. Charles (1889)
APPEAL BY PLAINTIFFS FROM THE COUBT OF COMMON PLEAS OF DAUPHIN COUNTY, IN EQUITY. No. 16 May Term 1889, Snp. Ct.; court below, No. 104 Equity D., C. P. A bill in equity was filed in the court below, which as amended was by William Trullinger, Jacob Charles and Mary E., his wife, against Sarah E. Charles, praying upon the facts therein-.averred that said defendant be enjoined from proceeding against the land of said William Trullinger on a writ of venditioni exponas issued, and perpetually restrained from proceeding against said land upon any process whatsoever, upon a certain judgment in favor of Sarah E. Charles against her husband John D. Charles. An answer having been filed, issue was joined, and the cause referred to Mr. JElias Mollinger, as exaininer and master, who made a report the material parts of which were as follows: The first, second and third paragraphs of the plaintiff’s bill allege that on March 31, 1887, William Trullinger purchased from Jacob Charles, a co-complainant in this proceeding, a tract of land situate in said county, containing fifty-two acres, and paid for the same the sum of $7,000, being the full amount of the purchase money. At the time of said purchase a judgment for $1,344 had been entered by Sarah E. Charles, the defendant, against her husband, one John D. Charles, son of Jacob Charles; said judgment being entered to No. 308 April Term 1886, on March 18, 1886. Having heard a rumor that the said John D. Charles had an interest of some kind in the land he was about to purchase, the complainant, William Trullinger, inquired of the vendor and was assured by him, that the said John D. Charles had no interest in the same, and that the judgment aforesaid was not an incumbrance on the land; and he therefore, as before stated, paid over the whole purchase money and took his deed. These are facts not controverted by the respondent. It further appears and the master finds as facts that on December 31, 1884, Jacob Charles and Mary E., his wife, by deed of conveyance granted and conveyed to their son John D. Charles the tract of land before mentioned for and in consideration of the sum of $6,000, which was paid in the following manner, viz.: said John D. Charles gave his father a promissory note for $3,500, and surrendered to him a note of $300 which he held against his father, and assumed the payment of a mortgage of about $2,000, held by a Mrs. Fisher as a lien upon said land, with some interest due on the mortgage. John D. Charles made some effort the following April to raise $4,000 on a mortgage which he proposed to create as a lien upon said farm, and with the proceeds of which mortgage he intended to lift the Fisher mortgage and to pay on account of the $3,500 note which his father held against him; in this effort to raise money he failed, although his father had actively assisted him. John D. Charles and his family were occupying the premises at the time he bought the farm, having taken possession as tenants of the father, and they remained in possession after the purchase. On March 30, 1886, not having paid anything to the vendor, except as before mentioned, the said John D. Charles and his wife, the respondent, conveyed said farm to Mary E. Charles, and he, the said John, got his $3,500 note back again and also received the $300 for which he had held a note against his father. Prior to said conveyance of March 30, 1886, by John D. Charles and wife to Mary E. Charles, to wit: on March 18, 1886, said judgment for $1,344 was entered, by Sarah E. Charles against John D. Charles upon a note dated April 2, 1883. [At the time of the sale of this farm to John D. Charles by his father, there was something said about a reconveyance in case John could not pay; but it is evident from all the testimony in the case that there were no binding conditions of that kind attached to the sale, and that the conveyance by John and his wife Sarah, respondent, to John’s mother, was not made in pursuance of any agreement so to convey.] 8 [John D. Charles and his wife never regarded this sale to John as other than an absolute one, and the weight of the evidence is to the effect that Sarah never heard any talk about a reconveyance until a short time before she signed the deed to Mary E. Charles.] 3 It is clear also that the idea in Jacob Charles’s mind that the sale was a conditional one is an afterthought, else why should he try to induce William Enders to loan John $4,000 in April, 1885, upon his, John’s, title to this farm, and he, Jacob, was to get only about $1,500 of that money as payment of his note, for the balance was required to satisfy the Fisher mortgage. It certainly cannot be said under the facts in this case, that John D. Charles never paid any part of the purchase money. True, upon conveyance to his mother there was returned to him whatever he had paid, but at the time of the entering of the wife’s judgment against him he had a title to and interest in the farm to which the lien of her judgment attached, just as the' Ender’s mortgage would have done if the project of John and Jacob Charles had been carried out in 1885. [If the master has come to proper conclusions as to the facts of this case, there certainly was no fraud either actual or legal in the respondent’s causing an execution to be issued, and in directing that a levy be made upon the real estate which her husband owned at the time she entered her judgment.] 4 If there is fraud in any part of these transactions, it is a fraud inflicted upon Trullingerby Jacob Charles, in asserting that John D. Charles had no interest in the land; that said judgment was not an incumbrance, and in pretending to be able to convey in the face of said judgment, a title to said Trullinger clear of incumbrances, as Charles and his wife undertook to do by their deed of March 31,1887, which contained a general warranty and in which they grant, bargain and sell the real estate in question. The master is of the opinion that, upon the facts of this case, ’ these proceedings should be dismissed at the cost of the complainants, and that the respondent should be permitted to proceed with the collection of the balance due upon her judgment. To the foregoing report the plaintiffs filed exceptions, alleging that the master erred, inter alia: 2-4. In his findings and conclusions in [ ] 8 to 4 5. In recommending the dismissal of the bill. Said exceptions having been argued, the court, SiMONTON, P. J., filed the following opinion and decree : The master finds that at the time of the sale of the farm to John D. Charles by his father, there was something said about a reconveyance in case he could not pay the purchase money, but that there were no binding conditions of this kind attached to the sale, and that the reconveyance was not made in pursuance of any agreement so to do. The counsel for complainant concedes, as we understand, that the finding of facts of a master is entitled to the same weight as the verdict of a jury, but he contends that this finding if made by a jury on the same evidence would be properly set aside by the granting of a new trial, and he asks us on this principle to reverse it. After a very careful examination of the evidence we have come to the conclusion that we cannot do so. The evidence consists, substantially, of the testimony of Jacob Charles and his wife, that there was such an agreement, and of John D. Charles and his wife, that there was not. The only-testimony given by William Trullinger on the subject relates to certain admissions which he testified John D. Charles had made three weeks before the taking of the testimony. Each of these witnesses was interested, and each testified in favor of the interest represented by them respectively. The transaction on the face of the papers purported an absolute sale by Jacob to John. The deed was executed, delivered, and recorded; and a note was taken for the balance of the purchase money not paid, or secured by the Fisher mortgage. There is nothing to show that Jacob and his wife are any more worthy of credit than John and his wife. Trullinger testifies to statements made by John three weeks before the hearing, which are inconsistent with John’s sworn testimony, but he also testifies that Jacob did not give him the correct version of the facts, when he asked him about the judgment on record against John. In this state of the evidence we could not say with any confidence that the master erred in his conclusion, nor would we set the finding aside if it were the result of a verdict by a jury. It is probable, as suggested bj1- the master, that at or after the time the conveyance was made to John, there was some talk of his reconveying in case he could not pay. But the testimony does not convince us that this talk ever amounted in form or substance to an agreement which, even in the absence of the statute of frauds, could have been enforced. And there is no evidence whatever that Sarah E. Charles, the defendant, John’s wife, ever agreed to join in a conveyance, and she could not in any event have been compelled to do so. Jacob might have withheld the conveyance to John until the purchase money was paid, and on failure to pay, either from want of disposition or ability, have refused altogether to convey; but he did not choose to do so. He made the conveyance and gave credit for the balance of the purchase money not paid or secured, and thus made it possible for Sarah to obtain a lien on the land; and be now asks the court to do for him what he declined or omitted to do for himself. In view of the master's finding, which we do not feel at liberty to disturb, we do not think we can afford him any relief. We cannot say as a conclusion of law that Sarah by joining with her husband in the reconveyance discharged the land from the lien of her judgment. She certainly did not intend to do so, and our attention has not been called to any clause in the deed which is claimed to have that effect. It cannot be said that J ohn took no interest in the land by the conveyance made to him by Jacob. He paid $300 of the purchase money, by the surrender of the note for that amount which he held against Jacob. This being so, even if Jacob had retained the legal title as security for the purchase money, or had taken from John a written agreement to re-convey on failure to pay the balazz.ce, John would have had an interest in the land which would have been subject to a judgmezit liezi and sale on execution, and the purchaser at such sale, certainly, if made before reconveyance, would have stood izi John’s shoes, and have been ezititled to a conveyance on payment of the balance of the purchase money; or, to have the amount paid refunded on making a reconveyance. And we are unable to see how the rights of the judgment creditor, vested by the entering up of the judgmezit could be prejudiced by a reconveyance of the land bound by the lien of the judgment, because it was made before execution was issued. Nor do we think that the judgment creditor is izi aziy worse position because she is John’s wife, holding a judgment agaizist him for an honest debt, than if she were a stranger. She had the same right to levy on his iziterest in the land that a strazzger would have had. In our opinion the plaintiffs are misled into the belief that they have a right to equitable relief, by the fact that Jacob took no security from John for the uzipaid purchase money. If he had, for example, taken a valid written contract to reconvey, it would be seen at once that a judgmezit creditor, whether his wife or a stranger, could levy on his interest in the land, subject to this agreement, and that the purchaser at sheriff’s sale would take his place under it. The fact that no such valid contract was made, does not destroy the right to levy and sell; it simply leaves the purchaser unbound, because John, whose rights the purchaser takes, was not bound. Any evil consequence to Jacob results from his own failure to make himself secure when he could have done so. It was said by Chief Justice Gibson, in Kauffelt v. Bower, 7 S. & B. 77, that, “ it is inconsistezit with natural justice, that a vendor who publishes to the world by the terms of his deed, that he has parted with his whole interest, and has trusted to the personal security of the vendee, should become an object of special protection against the conseqences of his own negligence; and that, too, at the expense of a third person, who, in purchasing from the vendee, even with notice that the purchase money was unpaid, has been guilty of nothing positively immoral or even unconscionable.” We see no reason why this will not apply as well to the ease of a judgment creditor as a purchaser, and we are of the opinion that the plaintiffs have no equity which would justify a decree in their favor. The injunction is therefore refused, and the bill dismissed, the costs to be paid by plaintiffs. A final decree having been entered refusing the injunction and dismissing the plaintiffs’ bill, the plaintiffs took this appeal filing the following assignments of error: “ 1. The court erred in sustaining the report of the master upon the facts of the case, his finding being against the weight of the evidence. “ 2. The court erred in holding that the defendant, by joining in the deed of reconveyance to Mary E. Charles,* did not discharge the land from the lien of her judgment against her husband. ■ “ 3. The court erred in refusing the injunction and' dismissing the bill.” (1) That a master’s report, like the verdict of a jury, may be set aside when clearly against the weight of the evidence, counsel cited: Packer v. Noble, 103 Pa. 188. (2) That a court of equity may restrain a party, in a case like this, from proceeding to sell land: Dent v. Ross, 35 Pa. 337; Harrison v. Soles, 6 Pa. 393; Winch’s App., 61 Pa. 424; Taylor’s App., 93 Pa. 21; Gray v. Bell, 4 W. 410; Witmer’s App., 45 Pa. 455; Big Mountain Imp. Co.’s App., 54 Pa. 361; Given’s App., 121 Pa. 260; but distinguishing Reeser v. Johnson, 76 Pa. 313; Davis v. Michener, 106 Pa. 395. (3) That the defendant by joining in the deed of reconveyance discharged the land from the judgment: Funk v. Voneida, 11 S. & R. 109; Chambers v. Spencer, 5 W. 404; Hatz’s App., 40 Pa. 209; Klein v. Caldwell, 91 Pa. 140; Seheid v. Rapp, 121 Pa. 593; Miner’s App., 61 Pa. 283; Thomas v. Harris, 43 Pa. 231. Upon the last assignment of error, counsel cited: Waters’s App., 35 Pa. 523; Chambers v. Spencer, 5 W. 406; Dean v. Shelly, 57 Pa. 426; McAninch v. Laughlin, 13 Pa. 371; Crest v. Jack, 3 W. 238 ; Carr v. Wallace, 7 W. 394; Hill v. Epley, 31 Pa. 333 ; Glidden v. Strupler, 52 Pa. 400 ; Innis v. Templeton, 95 Pa. 262; Wagner’s App., 98 Pa. 77; Knepper v. Kurtz, 58 Pa. 480.
129 Pa. 297Wm. R. Hart & Co. v. Cooper (1889)
1. There is no provision in the act of July 12, 1842, P. L. 339, making the proceedings under a warrant of arrest, subsequent to the issuing of the warrant, a part of the record; and, upon a certiorari bringing up such a record, the Supreme Court can do no more than determine whether the affidavit on which the warrant was based is sufficient to justify it. 2. If a contract creating a debt be free from fraud at the time it is made, a subsequent fraudulent breach of its conditions by Hie debtor, will not convert the indebtedness arising from it into a debt fraudulently contracted, within the meaning of that term as used in § 3, act of July 12, 1842,P. L. 339. (а) An affidavit in support of an application for a warrant ol arrest, averred that the plaintiffs had shipped certain iron, purchased from them by the defendants, to the plaintiffs’ agent, in care of the defendants, upon an agreement with the latter that it should remain in the cars unloaded and in the custody of said agent, until it should have been fully paid for. (б) The affidavit further averred that the defendants, in violation of said agreement and in fraud of the plaintiffs’ rights, had taken possession of said iron and converted it to their own use without paying for it, and had thus fraudulently incurred, within the meaning of the act of July 12, 1842, a debt or obligation for which a suit had been brought against them by the plaintiffs. 3. These averments were at most an averment of a fraudulent breach of a contract not originally tainted with fraud, and, there being no averment connecting the subsequent fraud with the original purchase of the iron, the affidavit was insufficient to justify issuing a warrant, applied for upon the ground that the debt arising from that purchase was fraudulently contracted.
129 Pa. 308Commonwealth v. Lehigh Valley R. (1889)
Nos. 28, 24, May Term 1889, Sup. Ct.; court below, Nos. 524, 576 June Term 1888, C. P. On August 9, 1886, the Lehigh Valley Railroad Company returned to the auditor general, the sum of $3,925,552.14, as its gross receipts for tolls and transportation, telegraph business, telephone business, express business, and transportation of coal mined, purchased or sold, for the six months ending June 30, 1886, and that the total miles of line were 326.61, of which 260.69 were in…
129 Pa. 314Totten & Co. v. Cooper, Reynolds & Co. (1889)
129 Pa. 317Commonwealth v. Hulings (1889)
1. Where a cause is submitted to the decision of the court, under the act of April 22, 1874, P. L. 109, the findings of fact are notreviewable, and the Supreme Court can hear and determine only questions arising upon bills of exception to the rulings of the trial judge, relating to the evidence, or to the law.* (a) Hulings, Simcox and Stone were the owners of a ferry franchise, and in 1878, Simcox, for himself and Hulings, agreed to aid in establishing a toll-bridge company, and in consideration of one fifth of its capital stock, to discontinue the ferry when the bridge was opened, reserving the right to re-establish if the bridge should be destroyed in two years. (b) The toll-bridge company opened their bridge in 1879, and kept it open until its destruction in February, 1881, during which time the ferry was not operated, the boats and rope being removed; but the ferry was re-opened soon after the bridge was destroyed, and in December, 1886, a proceeding by quo warranto was instituted to test the right to continue the use of the franchise. 2. In such case, it was not error for the court to hold that the delay to institute the quo warranto proceedings for over five years after the reopening of the ferry, and the fact, inter alia, that there was nothing in the case to show that since then it had failed to supply the needs of the public, entitled the defendants to judgment in their favor.
129 Pa. 324Boyer v. Bolender (1889)
t. Where one of several directors of an insurance company has paid off a judgment recovered against them, jointly, for the fraudulent appropriation of the funds of the company to their own úse, he cannot enforce contribution from the other defendants. 2. Such contribution cannot be enforced by means of an assignment of the judgment to the son of the defendant seeking it, the evidence showing that the assignment was fictitious, in that the means to pay were furnished to the son by such defendant.
129 Pa. 329Reed v. Gettysburg B.-F. M. Ass'n (1889)
APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS OF ADAMS COUNTY, IN EQUITY. No. 31 May Term 1889, Sup. Ct.; court below, No. 1 January Term 1889, C. P. in Equity. On January 7, 1889, John Reed, Sylvester Byrne, Frederick Middleton, Julius B. Allen and Charles W. Dewitt, representing the survivors of the 72d Regiment of Pennsylvania Volunteers, filed a bill in equity against the Gettysburg Battlefield Memorial Association, and John P. Taylor, Samuel Harper, J. P. S. Gobin, John P. Nicholson and R. B. Ricketts, commissioners appointed by the governor of Pennsylvania, under the act of June 15, 1887, P. L. 408. The bill averred the incorporation of said memorial association by act of April 30, 1864, P. L. 670, and supplement of April 24,1866, P. L. 1075, certain of its objects being, as stated in the act of incorporation, to preserve the natural and artificial defences of the battlefield of Gettysburg, as they were at the time of the battle, and to erect and encourage others to erect monuments designating the spots of special interest and commemorating the deeds of valor and signal events which render the battle ground illustrious; that the charter of said association was amended by a decree of the Court of Common Pleas of Adams county, April 21, 1885; so as to make the governor of Pennsylvania ex officio president thereof, and to constitute the governors of such other states as should by legislative appropriation contribute funds for the support of the association, ex officio members of the board of directors; that large appropriations to the funds of the association had been made by the state of Pennsylvania at different times; that pursuant to the act of June 15,1887, making an appropriation for the erection of memorial tablets to mark 't4 the position of each of the commands of Pennsylvania volunteers engaged in the battle of Gettysburg,” and providing for the appointment by the governor of five commissioners 44 to select and decide upon the design and material for such monuments, and to cooperate with five persons representing the survivors of the several regimental organizations or commands of this state, engaged in the said battle, in the location of the said monuments and the selection thereof,” the plaintiffs, appointed for that purpose by an association composed of the survivors of said regiment, and the commissioners appointed as aforesaid by the governor, had united in selecting the design and in fixing the location of a monument to be erected upon ground owned by said memorial association, marking the position of said regiment in the battle of Gettysburg; but the said memorial association refused to permit its erection upon said location, and required that it be erected upon another location which would be inconsistent with the facts of history and- a libel upon said regiment, by representing it as occupying a position in the rear of its actual position during the battle. The averments of the bill are fully set forth in the opinion of the Supreme Court, infra. The bill prayed that it be ordered and decreed that the power to select the location of the monument referred to was vested solely ,im the commissioners appointed by the governor, co-operating with the plaintiffs; that the monument be erected at the place selected by these persons, and that the memorial association be enjoined from preventing its erection and from removing or in any way interfering with it when erected, and for general relief. To this bill the defendants demurred, upon the ground that the act of June 15, 1887, was no part of the charter of the defendant association, had no relation to it or its grounds, and could not be used to affect its rights to or possession of said grounds, or its right to determine the location of monuments thereon; and that the bill did not state a case entitling the plaintiffs to equitable relief. The plaintiffs having filed a joinder in demurrer, the court, MoClean, P. J., filing no opinion, entered a decree after argument, sustaining the demurrer and dismissing the bill at the cost of the plaintiffs. Thereupon the plaintiffs took this appeal, specifying that the court erred: 1. In sustaining the demurrer. 2. In not overruling the demurrer. 8. In dismissing the bill. 1. The charter of the defendant association gives it no exclusive right to select sites for monuments, nor any discretion as to the location of landmarks indicating the topographical features of the battle. No power was granted to misrepresent the facts, by erecting monuments indicating untruths and violating historic accuracy. It was meant that the association should erect, and prompt others to contribute, works of art appropriate as memorials not only of heroism but of the very spots on which heroic acts were done. It is bound to permit such contributions. The argument that it may erect them or not as it chooses, or may place them where it sees fit, without regard to the suitability of the location, is un warranted by either the spirit or the language of the act of April 30, 1864. 2. But, even were this view of the subject incorrect, the charter of the association was, and always has been, subject to amendment, alteration or annulment by the legislature, the constitutional amendment of 1857 having antedated it by six years. Its property also, is subject to be taken from the association for public uses. The act of June 15, 1887, may be regarded as within the scope of each of these legislative powers. Putting the act of 1864 and that of 1887 together, then, where lies the power to choose the site of the monument ? Ultimately, it is clear, in a court of equity. If it be exclusively in the association in the first instance, a chancellor will see that it is not wrongfully, hurtfully or malevolently exercised, and this even independent of the act of 1887. 3. Considering the action of the memorial association in the light of these principles, we contend that equity will enjoin interference with the use of the site selected, because the legislature contemplated that such monuments should be placed upon locations historically precise and accurate. The act of 1864, in providing for the designation of spots of S£>ecial interest, unmistakably shows this. The act of 1887 makes it equally clear. In providing for memorials to mark the position of each of the Pennsylvania commands engaged in the battle, it obviously meant that the positions to be marked should be those of the commands as engaged in the battle, and that the memorials should indicate the spot where the fighting, of special interest, by any given command took place. 4. But, even were the provisions of the statute less stringent, the plaintiffs would be entitled to the decree prayed for, upon the ground that the association is shown by the bill to be abusing its powers in such a way as to justify a chancellor’s interference. The act of 1887, however, constituted the commissioners a tribunal to determine, sitting as a quasi judicial body, for the state, which was a large contributor to the monuments, the questions of location that might be presented to it. The power of selection was by that act committed exclusively to the five commissioners co-operating with the representatives appointed by the survivors of the Pennsylvania volunteers. We submit that the legislature had power to do this. 1. By an inspection of the acts of April 30, 1864, and April 24, 1866, and of the amendments to the charter of the defendant association, decreed by the Court of Common Pleas of Adams county on April 21, 1885, it will be seen that this great battlefield .is not the property of the state of Pennsylvania, either directly or indirectly. Neither the state nor the defendant commissioners make any claim to the control of it. The commissioners neither have nor claim any authority to appropriate the grounds to the use of any regiment, for its monument, without the consent of "the association. This battlefield knows no state, but belongs to all; and Pennsylvania cannot create a commission to locate monument sites, without the concurrence of the battlefield memorial association. 2. The fact that the five commissioners appointed by the governor are made defendants in the bill, shows conclusively that they did not co-operate with the plaintiffs, and defeats the right of the latter to maintain their bill. Without such cooperation the bill cannot be maintained, and no other conclusion can be drawn from the fact that the commissioners are placed in the position of adversaries by the bill, than that they will thus agree to a site only with the consent and concurrence of the battlefield association. Nor are the commissioners any more than mere agents of the state to perform, for a brief period, such supervisory duties as are set out in § 3 of the act of 1887. 3. The act of June 15, 1887, has no reference to or connection with the battlefield association. Its title contains no reference to the act incorporating the association, and it cannot be used in any manner to affect the terms, provisions or grant of powers contained in said act of incorporation: Sections 3 and 6, article III. of the constitution. Nor does the body of the act of 1887, contain any reference to the battlefield association. The title of an act is now deemed a part of it: Penna. R. Co. v. Riblet, 66 Pa. 164; Eby’s App., 70 Pa. 311; and if it do not clearly indicate the subject matter, the act is unconstitutional : Cooley’s Const. Lim., 177 et seq.; Dorsey’s App., 72 Pa. 192; Dewhurstv. Allegheny, 95 Pa. 437; Craig v. First Presb. Church, 88 Pa. 42; Beckert v. Allegheny, 85 Pa. 191.
129 Pa. 338Estate of Bittinger (1889)
1. The collateral inheritance tax imposed by the act of May 6, 1887, P. L. 79, is a direct tax upon the property devised to or inherited by collaterals, in the hands of the devisees or heirs, and not merely a succession tax imposed upon the persons thus succeeding to real or personal estate. 2. Said act, in so far as it imposes such a tax upon realty situated in other states, transcends legislative power and cannot be enforced, real estate not being drawn to the person or domicile of the owner for taxation or any other purpose, and lienee not taxable outside of the jurisdiction where it is situate. 3. The facts that the devisor of land situate in Maryland was domiciled at the time of his death in Pennsylvania, and that the devisee of said land is a Pennsylvania corporation, mate no difference in the applicability of the rule denying to state tax laws an extra-territorial operation. 4. Whether the imposition by the act of May 6, 1887, P. L. 79, of collateral inheritance taxes upon estates not before taxable, is in violation of § 3, article III., of the constitution, in that the title of the act refers solely to the collection of taxes and does not clearly indicate the subject matter, not decided.
129 Pa. 346Commonwealth v. Lackawanna I. & C. Co. (1889)
(a) A coal and iron company, exercising the corporate powers with which it was invested, owned and operated coal and ore lands, and from the products manufactured, transported and sold iron and steel as a manufacturing company, having, also, a portion of its capital invested in bonds and mortgages, city lots and store-goods. 1. In such case, § 20, act of June 30, 1885, P. L. 193, exempts from the state tax imposed by § 4, act of June 7, 1879, P. L. 112, only so much of the corporation’s capital as is employed in strictly manufacturing operations, as distinguished from that employed in mining operations, or invested in city lots and bonds and mortgages. 2. The fact that a portion of the capital of a manufacturing corporation is employed in other business operations, does not deprive the comjiany of the exemption authorized by § 20, act of July 30, 1885, P. L. 193, as to its capital employed strictly in its manufacturing business.
129 Pa. 360Commonwealth v. Mahoning Roll. Mill Co. (1889)
The portion of the capital of a manufacturing corporation invested in dwelling houses built to be leased to its employees, does not differ materially from any other investment made outside of its business as such a corporation, and is not exempted by § 20, act of June 80, 1885, P. L. 193, from the state tax imposed by § 4, act of June 7, 1879, P. L. 112 : Commonwealth v. Lackawanna Iron & Coal Co., ante, 346,
129 Pa. 366Small v. Small (1889)
APPEAL BY DEPENDANT .EROM THE COURT OE COMMON PLEAS OE ERANKLIN COUNTY. No. 12 May Term 1889, Sup. Ct.; court below, No. 87 December Term 1888, C. P. On September 17, 1887, Lavina Small brought assumpsit against David W. Small to recover $8,388, alleged to have been received by the defendant for the use of the plaintiff. On September 13, 1888, the defendant filed a plea in abatement, averring that the plaintiff was, at the commencement of the action, and still was the lawful wife of the defendant. To this plea the plaintiff demurred. The defendant having filed a joinder in demurrer, the court, after argument, entered judgment sustaining the demurrer and directing that the defendant answer over; exception.1 Thereupon the defendant pleaded non-assumpsit, payment and the statute of limitations, and the same day, September 13, 1888, a jury was empaneled to try the issue. Upon the trial the following facts were admitted: The plaintiff both at the time the action was commenced and at the time of trial, was the lawful wife of the defendant. They were married in February 1844, and from that time un til the trial lived together continuously as husband and wife. Subsequently to the year 1856, the defendant received $2,200 of moneys derived from the separate estate of his wife, the plaintiff. The defendant was offered as a witness to prove that whilst he had received the money, it was a gift, and not to be repaid to her at any time. The competency .of the witness was objected to, and the offer refused. No further evidence being adduced, the court, Rowe, P. J., charged the jury as follows : The plaintiff, Lavina Small, brings this action against David W. Small to recover a large sum of money. It is admitted that Lavina Small is the wife of David W. Small, that they were married in 1844, and that she was at the commencement of this suit and now is his wife. On the other hand it is admitted that David W. Small received from his wife, subsequently to the year 1856, the sum of $2,200, which money was derived from her separate estate. That is all the evidence there is in the case, and I instruct you that on that evidence the plaintiff is entitled to recover the sum of $2,200, she not claiming any interest whatever. When it is proved or admitted that a. husband, subsequently to the year 1848, received the moneys or .properties of his wife, the presumption of law is that he received it from her by way of a loan, and to be repaid, and not that he received it as a gift. Counsel for defendant have asked us to instruct you upon two points. 1. The court is respectfully requested to instruct the jury that it being admitted that this plaintiff and defendant are husband and wife; that they were married many years ago and lived together as man and wife from the date of their marriage until the bringing of this action, then this action cannot be maintained, and the verdict must be for the defendant. Answer: I have already settled this question upon a plea of abatement which was filed in the case, and I now refuse this point.8 2. That there being no evidence in this case of any promise by the defendant to repay the plaintiff the moneys received by him, there can be no recovery. Answer: This point I refuse also, and I instruct you now that upon the evidence you ought to render a verdict in favor of the plaintiff for the sum of $2,200.3 The jury then rendered a verdict for the plaintiff for $2,200, and judgment was subsequently entered thereon; whereupon the defendant took this appeal, specifying that the court erred: 1. In sustaining the demurrer to the plea in abatement.1 2, 8. In the answers to the defendant’s points.8 3 1. This action could not have been maintained prior to the act of June 3, 1887, P. L. 332. The court is now called upon for the first time to construe the fourth section of that act. In such construction, the old law and its mischiefs must be considered. What were those mischiefs ? Upon reading the act we think we can discover what the legislature deemed them to be, and what it undertook to remedy. They saw that a married woman’s coverture stood in the way of a full, free and expeditious transaction of affairs, necessary for the support and comfort of herself and family; that in order to make contracts with her legal and binding, it was necessary for every mechanic and every tradesman to have a knowledge of the most intricate questions of law; and that to recover even the smallest account against her required the services of a skilful lawyer. These were the mischiefs they undertook to remedy. 2. Accordingly, the legislature, by the second and third sections of the act, imposed upon a married woman the same liability with reference to her contracts, as upon any other person, provided such contracts relate to any trade of business in which she may be engaged, or to the improvement of her separate estate, or to the procurement of necessaries. By the second section, she is rendered capable of suing or being sued upon such contracts, or for torts committed to or by her, as if she were a feme sole. The provision in the same section that her husband need not be joined with her as plaintiff or defendant in any action brought by or against her in her individual right, must be taken to refer to the actions before enumerated. Hence § 4 was added to make it unnecessary for the husband to be joined as plaintiff in other actions. We take it that now, ' a married woman loaning money can sue' for its recovery without the joinder of her husband, and that is all the fourth section means. 8. There never has been any mischief arising out of the fact that a wife could not sue her husband except as is provided in § 3, act of April 11, 1856, P. L. 315, and act of June 11, 1879, P. L. 126. The mischief has always been the other way, to wit, in the confession of judgments to the prejudice of honest creditors. As originally introduced into the senate the act of 1887 expressly gave to husband and wife civil remedies against each other: Legislative Record, 1887, vol. 1, p. 896. No other reason can be given for the striking out of that provision than that the legislature intended to be withheld the right to maintain such an action as this. It will not do to say that the words stricken out were removed because considered tautological ; the idea contained in them is not to be found anywhere else in this section, or in the act. The act ought not to be held to confer such a right of action by inference. Statutes are not presumed to alter the common law further or otherwise than is clearly declared.: Archer v. Bokenham, 11 Mod. 150; Pettit v. Fretz, 33 Pa. 122 ; Bac. Abr., tit. Statute 1, pi. 4. 4. The construction of the act should be such as will best answer tbe intention of its makers: Plowd. 282; Pettit v. Fretz, supra. When the intention of the legislature is doubtful, the court will interpret the law to be what is consonant with equity: Kerlin v. Bull, 1 Dali. 176. Following these rules of construction, how should this statute be interpreted ? What was the intention of the legislature ? Surely there was no occasion to permit the wife to sue the husband, while the marriage relation exists. What construction is agreeable to the rules of the common law, and what is consonant with equity ? By the common ■law the husband and wife are one person, and the possibilhy of ■a civil suit between them is excluded. The evil consequences which would follow the destruction of this legal unity, have been set forth clearly by some of the wisest judges that ever sat in this court: Bitter v. Ritter, 31 Pa. 396; Bear v. Bear, 33 Pa. 526. If it is to be destroyed, this must be done by unmistakable language: Ritter v. Ritter, supra. 5. That the legislature did not intend to destroy by this statute the legal unity of husband and wife, is apparent from their passing, about the same time, the act of May 23, 1887, P. L. 158, providing that husband and wife should not testify against each other. The laws of Pennsylvania have been very liberal in modifying the common law doctrine as to the marriage relation, but the time has now come to call a halt. It was contended in the court below, that a wife always had a right to proceed against her husband in equity and that the evils of litigation would be no greater if she proceeded at law. The cases cited to support this argument were Williams’s App., 47 Pa. 307; Miller v. Miller, 44 Pa. 170; Bergey’s App., 60 Pa. 416, and Gleghorne v. Gleghorne, 118 Pa. 383. We answer this by simply saying that not one of these authorities supports the contention that, in the circumstances of this case, a wife could enforce such a claim as this against her husband in equity. 1. We contend that this action is maintainable under § 4, act of June 3, 1887, P. L. 333. There has been a gradual and progressive amelioration of the harsh rule of the common law by the following series of enactments: Section 22, act of April 15, 1851, P. L. 675; § 2, act of May 4, 1855, P. L. 430; § 3, act of April 11, 1856, P. L. 815; § 2, act of June 11, 1879, P. L. 126. This course of legislation may throw light upon the intention of the legislature as expressed in the act of 1887, which is but a very short step in advance of the last preceding act. 2. Husband and wife could always proceed against each other in equity: Miller v. Miller, 44 Pa. 170. We have heard of no evil results from this power, and how a suit in a common law court could cause a disturbance of domestic relations which a proceeding in equity would not, we leave the other side to explain. The direful results prophesied in Ritter v. Ritter, 31 Pa. 396, have not followed the legislation before referred to. For our part we prefer the more cheerful views of Mr. Justice Agnew in Williams’s App., 47 Pa. 308. In the same spirit is the language of this court in Kincade v. Cunningham, 1 Mona. 9. 3. Any other construction of the fourth section of the act of 1887 than that for which we contend, would result in a reductio ad absurdum. The act either authorizes both husband and wife to sue each other, or else it authorizes neither to sue the other. If it does not authorize the husband to sue the wife, then we have a statute solemnly conferring upon a married man the same rights to sue persons other than his wife, which an unmarried man possesses. This is of course absurd. 4. The defendant having admitted that since 1856 he received $2,200 of his wife’s money, the presumption is that he received it for her, and that it continues hers; and the burden is upon him to prove the contrary: Grabill v. Moyer, 45 Pa. 530; Mellinger’s Admr. v. Bausman, 45 Pa. 522; Johnston v. Johnston, 31 Pa. 450 ; Gicker v. Martin, 50 Pa. 141; Bergey’s App., 60 Pa. 408; Hamill’s App., 88 Pa. 367. His mere possession of his wife’s money is no evidence that the title to it has been vested in him: Hamill’s App., supra.
129 Pa. 376Anderson v. Brinser (1889)
APPEALS BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP DAUPHIN COUNTY., No. 12 May Term 1887, Sup. Ct.; court below, No. 258 August Term 1885, C. P. On June 18, 1885, Christianna Anderson et al. brought ejectment against Jonas Brinser for lot No. 258 in the town of Portsmouth, now known as the borough of Middletown. The defendant’s plea was not guilty. At the trial on January 17, 1887, both the plaintiffs and the defendant claimed title under John Snyder, who died prior to 1857, seised of the lot in controversy, leaving as his heirs at law several children among whom was Washington R. Snyder. For the purpose of showing that the title of Snyder’s heirs had become vested in John Anderson, whose heirs the plaintiffs were and through whom they claimed, the plaintiffs called Margaret Snyder, who testified that she was the widow of Washington R. Snyder, now deceased; that in 1857, in the presence of the witness, her husband, Washington R. Snyder, on behalf of himself and the other heirs of J ohn Snyder, deceased, made a parol contract with John Anderson by which the latter purchased the lot in controversy for the price of $300, to be paid in such instalments as he should be able to pay; that at the time of making this contract Anderson paid to the husband of the witness $40, on account of the purchase money, and her husband subsequently told the witness that he had received from Anderson $150, in all, under the contract. The witness also identified the signature of her husband to a receipt which was read in evidence, as follows : “ Rec’d, Middletown, October 22d, 1857, from J ohn Anderson, forty dollars, in part of the Purchase Money for Lot No. 258, in the Borough of Middletown. “ $40. Washington R. Snyder, Ag’t.” No evidence of any authority in Washington R. Snyder to represent the other heirs of John Snyder in making this sale, was presented. Several witnesses testified for the plaintiffs that John Anderson took possession of the lot so purchased, erected thereon a house soon after its purchase, and subsequently added a kitchen to the house; that for about three years after it was built, this house was in the occupancy of a tenant of Anderson; but about the spring of 1861 he moved into it himself and continued to reside therein until his death in 1883. His widow and two of his heirs continued to live in it after his death, until ejected under a recovery in an action of ejectment brought against them in 1884 by Jonas Brinser. The plaintiffs having rested, the defendant put in evidence ■a deed from the heirs of John Snyder, deceased, executed November 22,1858, conveying to J. H. Hershey the lot in controversy, in consideration of $150. The defendant then called Peter Helman, one of the subscribing witnesses to a paper dated December 30,1875, and purporting to be signed by J. H. Hershey and John Anderson. The witness testified that this paper was executed by both Hershey and Anderson in his presence.. The paper, so proved, being put in evidence by the defendant, appeared to be a demise from J. H. Hershey to John Anderson of the lot No. 258 in the borough of Middletown, in the occupancy of said Anderson, upon terms specified in the instrument as follows: “ To have and to hold the said premises monthly, if the said John Anderson shall prove himself satisfactory to the said J. Hoffman Hershey, and if not, the said J. Hoffman Plershey hereby reserves the right to remove the said John Anderson and family, with his goods, from the house and premises, as a tenant at will, at any time during said term. The said John Anderson, hereby promising and agreeing to pay as rent, for each month in advance, the sum of two dollars; commencing on April 1, 1876, upon the conditions aforesaid, and also pay all taxes assessed on said property during the occupancy of the same. The said John Anderson agrees also to do such labor or work (at the customary wages) as the said J. Hoffman Hershey shall direct him to do. He shall suffer no damages to be done whilst occupying said premises, nor do any himself, but agreeing peaceably, at any time, as hereinbefore reserved, to yield up the premises to the said J. Hoffman Hershey, or his agent,” etc. David Detweiler, called by the defendant testified that during the years 1878-1880 the witness, as-the agent of J. H. Hershey, occasionally collected from John Anderson rent for tbe premises in controversy, and that after Anderson’s death his son George paid some rent to the witness; that at the end of every year the witness gave Anderson notice to quit, but he and his heirs were allowed to stay on; “ they came and re-rented:” that on one occasion John Anderson spoke to the witness about having been to see Hershey in regard to buying the property in the way of paying rent. J. H. Hershey testified for defendant that John Anderson often wanted to buy the property from the witness, to pay for it in monthly instalments; that the property was purchased by the witness from the Snyder heirs, at the instance of Anderson, so that Anderson could keep it at a cheap rent, and if ever he should be able to buy it, the witness intended to let Anderson have it at cost, with a fair interest; that $150 was all that the witness paid for the property ; that he did not know at that time that Anderson had built the house on it; that after purchasing, the witness rented it to Anderson at $3 a month, but subsequently made the lease in evidence at the rate of $2 a month, and he was unable to tell how much was back on the rent. The defendant put in evidence also the deed of J. H. Hershey and wife, dated August 19, 1884, conveying the lot in controversy to Jonas Brinser. There was no evidence that Brinser, at the time he purchased, knew anything of the lease between Hershey and Anderson in evidence, or that he made any inquiry, or had any information, respecting the capacity in which Anderson and his heirs had been in the possession of the property. In rebuttal, the plaintiffs presented evidence tending to prove that John Anderson could not write and could not have signed the lease; and that J. H. Hershey had at different times admitted Anderson’s ownership of the lot in controversy, had admitted to Anderson in his lifetime the loaning to him of $150 to pay for the lot, to be repaid in rent, and after his death had admitted to some of the plaintiffs that the purchase money he had paid to the Snyders was advanced for Anderson as a loan, and promised to inform them to what extent the moneys so advanced had not been repaid to him, and to permit the plaintiffs to pay it in instalments, but had failed to inform them as to the amount due. In sur-rebuttal the defendant presented testimony tending to disprove the statements made by the plaintiffs’ witnesses in rebuttal, and to prove that after the death of John Anderson the plaintiffs endeavored to buy the property from Hershey. At the conclusion of the evidence the court, Sumonton, P. J., charged the jury as follows : This is an action of ejectment, brought by the heirs of one John Anderson against Jonas Brinser and others, to recover possession of a certain lot in the town of Middletown, or what was originally the town of Portsmouth. The claim of the plaintiffs, which stands exactly on the same footing as it would stand if John Anderson, who is dead, were here and bringing the action, is that John Anderson, in 1857. the time is not very definitely fixed, purchased this lot from the heirs of one Snyder ; that Anderson, after purchasing it, went into possession of the lot which at that time was a vacant lot, and built a small house upon it; that Anderson remained in possession of it until his death, about 1883, and died while in possession, leaving the present plaintiffs as his heirs. On the part of the defendant, it is claimed that he holds a regular deed for this property, which was conveyed to him by one Hershey, and that Hershey received a regular deed, in 1858,1 believe, from the same persons from whom the plaintiffs claim that Anderson bought, viz.: the Snyder heirs. The title of the defendant is regular upon its face. Pie has a deed which upon the face of the papers is regular and legal, conveying to him a regular title from the Snyder heirs, and it is agreed on both sides, that the Snyder heirs had a good title. But the plaintiffs say that before the Snyder deed was made to Hershey, who afterwards conveyed to Brinser, the Sliders had already sold the property to Anderson. They have no deed to show for this sale. If they had a deed regularly executed by the heirs of Snyder, that was made in 1857, while the deed of Hershey was made in 1858, they would have a good title, and the fact that a second deed was made, would not affect it at all. They have no deed, however, but they claim that they made the purchase by parol, as it is called in the law; that is to say, by word of mouth, and without any writing or deed. There is a law in this state, as in most other states, in English speaking countries at least, that an interest in real estate, except for three years or less, cannot be conveyed except in writing, signed by the parties conveying the land. That is the general rule, and if there were no exceptions to that rule there would be an end to this case at once. The plaintiffs in this case would have no title because they have no deed or writing, and the claim here is not for a lease for three years or under, but an absolute fee simple of the land. That law is called the statute of frauds and perjuries, and it was passed for the purpose of preventing fraud and perjury by allowing persons to claim that they had purchased land by word of mouth or parol. But it was found by experience that persons did sometimes make these conveyances without writing, and therefore there have been exceptions established by the courts to that unbending rule, and there are times in which a man can get a title to land for a greater term than a lease for three years by parol agreement; and it is sufficient in this caseto say that persons may do so, and that where a person, having made a contract by parol, purchases land, and goes into possession of the land purchased, and makes valuable improvements upon it, or, to confine it still further to this case, where a person goes into possession and builds a house upon the property which he purchased by parol, it is, by law, sufficient to take the case out of the statute. But in order to establish it there must be clear proof of certain matters. In the first place there must be proof that the contract was made, and there must be clear and definite proof as to the subject matter of the contract; that is to say, there must be proof of what land it was that was purchased; there must be proof to satisfy a jury clearly as to what the consideration was, and there must be proof to satisfy a jury of the fact that the person who claims to have purchased went into possession of the property under and because of the contract. It is eontended#on the part of the plaintiff that there is not such proof in this case, and that is the first question you are to determine. You are to determine whether in this case there was a parol contract, which you understand to be a contract without writing, by word of mouth, between John Anderson and the Snyders, to purchase this property; that is to say, to purchase the very lot upon which the house about which you have heard was built; because if it was a contract for any other lot it is of no consequence here. If you have no evidence to satisfy you definitely that it was in respect to this lot, the plaintiffs fail. The evidence upon that point is contained, first, in the testimony of Mrs. Snyder, and you heard what she said as to bargaining between her husband and John Anderson. She speaks of hearing them contracting about the purchase of a lot. She could not give the number of the lot. She spoke of the price being $300. You will have to remember and determine how far she made that statement from her own knowledge, or how far she made it, if she did, simply from hearing her husband speak of it afterwards. The testimony was not very definite upon that point, but she did testify to the fact that the price was to be $300. She testified also as to payments made — one payment she spoke of quite definitely; she spoke of payments being made at other times on account of the purchase; she said, if we remember rightly, that at the other times she did not hear them say that the money was paid on this particular lot. You will have to determine whether or not Anderson, when he paid money from time to time, paid it on account of this purchase. She did not know the amount of the payments at the different times with any great definiteness. She did say that in all $150 had been paid. You will have to determine whether she testified to that from her own knowledge, or from her husband saying so. In addition to this testimony there is this receipt. In this receipt the lot is designated, and that is the equivalent to a description of the property, because in the absence of any other evidence in the case we have a right to assume that the lots in Middletown are designated by numbers, and that this description, number 258, in the borough of Middletown, designates the lot. If this receipt refers to the payment for the same property that Mrs4 Snyder testified about, or if her testimony refers to the same property that this receipt does, then the lot is sufciently designated and described to make complete the subject matter of the purchase and to show that the lot purchased, if one was purchased, was lot number 258, and we believe the testimony is that that was the lot upon which the house was built. Then, again, you determine with definiteness and certainty what the price was to be for this lot; and a good reason why the jury should be able to find, and why the plaintiffs should satisfy the jury by testimony from which they can find, what the price of the lot was, is because it would not %e fair and equitable to allow the plaintiffs to recover unless they have paid the purchase money, and the jury cannot compel the payment of the purchase money unless they know what it was; therefore it is right and proper that the law should be as it is, that the plaintiffs shall satisfy the jury what the price was. Then, again, if you find that there was a purchase of a definite lot, and if you can find what the price was from clear and satisfactory evidence, you are to determine next, was possession taken of that lot by virtue of this purchase? Was it because John Anderson purchased this lot, and because it was agreed to be sold to him by the owners, that he went into possession ; was that the way he got possession, if he did take possession of it ? If he did, did he build this house upon it ? If all these matters are found satisfactorily; if you can find that a definite . contract was made for the purchase of a definite lot, the identity of which you can ascertain; that the price was fixed; that possession was taken by virtue of that contract; that the house as described by two carpenters was built upon it by Anderson and paid for by him, and that the taxes were paid upon the property by Anderson, or even without that, for the present purpose, then he would get such a title by parol as would take the case out of the statute of frauds, and he would get such a title as would be equivalent to a written deed. The statute of frauds, under these circumstances, would not stand in the way of his title. The fact that he did not get a deed would not prevent the title from passing to him, and if the title did' thus pass to him, then the Snyder heirs would have no title to convey to Hershey, and Hershey’s deed would not be good against the title so acquired. But there is other evidence in the case. As you have heard here, there is evidence to show that some years afterwards Anderson went to Hershey and asked him to buy this property, or to get a deed for this property from the Snyders, and that Hershey did go, and he got this deed that has been offered in evidence here. It was one year afterwards, in 1858. The deed was then made by the Snyders to Hershey, and tire consideration of that deed, as it has been read here, was $150. Some years after that deed was taken by Hershey a lease was taken and entered into by Anderson, in which he rented this property from Hershey. It has been contended upon the part of the plaintiffs that there is something irregular about that lease. They gave some evidence, as you heard, to show that Anderson could not write his name, whereas, it is written on that lease. There has been no evidence, as the counsel avers, that the lease was not read to Anderson or explained to him. That is of no consequence, gentlemen; there is nothing to show that it was not read to him or explained, and therefore we must assume that it was so read and explained to him. And it is contended that the fact that Anderson gave this lease; the fact that by that writing he rented this property from Hershey, shows that he was not the owner of it and estops him now from claiming to be the owner, and we are asked, as a matter of law, to instruct you that that is so. This we do not think we can do, and we leave the question to you to determine, upon all the evidence of the case, what the intention of the parties was in executing that lease ; to determine whether the object of it was, as it would appear upon its face, in the absence of any other facts and circumstances in evidence, that Anderson was to become the lessor of Hershey for the lot to which he otherwise had no title ? There is no controversy but that when Hershey bought, there was $150 due by Anderson, if he became the purchaser. Hershey was entitled to get this from Anderson. Did he buy it for the purpose of giving Anderson time, or of enabling Anderson to get the title finally by paying off this $150? Was the lease made by Hershey so that Hershey might be in a position to in-force the payment of the interest and principal of that $150 from time to time ? If Anderson, in making this lease, and if Hershey in taking the lease, did not intend that Anderson was acknowledging that he had no title to the property, but it was for the purpose of carrying out that arrangement, and of securing the payment of the $150, the giving of the lease would not, as a pure matter of law, prevent Anderson, or his heirs, from setting up a claim of title, and we leave to you to determine what his intention was, from all the facts in the case, in the giving of the lease. [Brinser, this defendant, stands just where Hershey did. He has no greater rights, nor no less. Anderson was in possession of the property, or Anderson’s heirs were, after the death of Anderson, and that was notice to Brinser of the facts, and he could get no less or no greater title than Hershey had. He stands precisely in Hershey’s shoes.] a [If you find by satisfactory evidence that the parol contract was made for the purchase of this lot No. 258; if you find what the amount of the purchase was, what the bargain was; if you find by testimony of the same kind that in pursuance of that Anderson went into possession, built a house and paid for it; if you find these facts, then, unless this lease was a change of that condition, or was an agreement on Anderson’s part that Hershey had become the legal owner, and that Anderson was only the lessor, you find a verdict in favor of the plaintiffs.] 3 And if you find a verdict for the plaintiffs, you will have to find whether the $150 due at the time that Hershey bought, was afterwards paid. If, up to this point, you find a verdict in favor of the plaintiffs, then whatever money Anderson paid to Hershey would be, in law, a payment upon the $150 of purchase money, and the interest due upon it; that is, if you find the lease did not change their legal relations. If you find that after the time that Hershey purchased, Anderson paid enough to make up the $150, with interest, then you will simply find a verdict in favor of the plaintiffs. If you find he did not pay it all, it will be your duty to find how much he did pay, and if a balance is due, it will be your duty, by your verdict, to say how much that balance is. If you find that all the $150 was paid, you simply find a verdict for the plaintiffs; but if you find for the plaintiffs, and that all the $150 was not paid, then you find for the plaintiffs and the amount that was paid. If you find, gentlemen, that this lease did change the legal relations of these parties, or if you find that it proves that Anderson, from the time Hershey claimed to own it, knew that he had no title to it, and that he knew that Hershey had a full title, then, of course, your verdict would have to be for the defendant. If Anderson was only a tenant; if he had no title or had given it up, and was simply a renter, then your verdict would have to be in favor of the defendant. The defendant requests the court to charge the jury: 1. The fact that Anderson took this lease, the fact that by that writing he rented this property from Hershey, shows that he was not the owner of it, and estops him now from claiming to be the owner. Answer: This we do not think we can do, and we leave the question to you to determine, upon all the evidence in the case, what the intention of the parties was in executing that lease; to determine whether the object of it was, as it appears from its face, in the absence of any other facts and circumstances in evidence, that Anderson was to become the lessor of Hershey for the lot which he otherwise had no title to.1 Now gentlemen, I will call your attention to the reserved points. I have put the points this way: “ It is agreed by counsel on both sides that if the jury find a verdict in favor of the plaintiffs, and the court should, on the motion for the entry of judgment for defendant non obstante veredicto, be of the opinion that the evidence of a parol purchase is not sufficient to take the case out of the statute of frauds, the judgment shall be entered for the defendant. It is further agreed that if, on the said motion, the court should be of the opinion that the existence of the lease is a legal bar to the recovery of plaintiffs, then judgment to be entered for defendant non obstante veredicto.” This statement of these points makes them an agreement of counsel, on both sides, that the case may be disposed of in that way. The jury rendered a verdict in favor of the plaintiffs for the premises in dispute, subject to the opinion of the court upon the points reserved. On January 27, 1887, without opinion filed, the court entered judgment upon the verdict in favor of the plaintiffs.5 Thereupon the defendant took this writ, assigning for error: 1. The answer to defendant’s point.1 2, 3. The parts of the charge embraced in [ ] 3 3 4. That the judgment which was intended to be a judgment upon the reserved points, contained nothing to indicate its grounds, nor the facts upon which it was based. 5. The entry of judgment, for the plaintiffs on the reserved points.5 1. The court erred in submitting to the jury whether the lease was an agreement to pay purchase money in the form of rent. There was not .a scintilla of evidence that it was anything else than what it purported to be. The mere suggestion of counsel that it might be an agreement for the payment of purchase money, seems to have been adopted by the court without anything to warrant it. To submit a fact without evidence is error: Stauffer v. Latshaw, 2 W. 167; Bradley v. Grosh, 8 Pa, 49. Neither fraud, accident nor mistake was proved, or even alleged, and parol evidence was inadmissible to vary the written lease: Martin v. Berens, 67 Pa. 463 ; Eargood’s Est., 1 Pears. 399 and cases cited. 2. Moreover, the lease was in the nature of an estoppel as to Brinser, who was an innocent purchaser. When a party is in possession under a lease, knowledge of the lease dispenses with further inquiry as to the character of the possession: Leach v. Ansbacher, 65 Pa. 85. If invalid, its invalidity depends on what took place when it was made, and of this Brinser should have been shown to have knowledge when he bought: Dinkle v. Marshall, 3 Binn. 589; Kostenbader v. Peters, 80 Pa. 441; United States v. Mertz, 2 W. 407. This ground alone was sufficient to require binding instructions for the defendant: Hood v. Fahnestock, 1 Pa. 470; Wilson v. McCullough, 23 Pa. 440 ; Sartwell v. Wilcox, 20 Pa. 123. 3. The parol contract under which the plaintiffs claim, was not sufficiently proved. The amount and time of payment of the purchase money were not definitely stated. A parol contract should be definite in its terms and unequivocally established : Goucher v. Martin, 9 W. 106. There is no evidence that John Anderson took possession in consequence of the contract. His building a small house can be compensated in damages: Postlethwait v. Frease, 31 Pa. 474; McKowen v. McDonald, 43 Pa. 441. If he ever had an equity, he abandoned it by his neglect to assert it and his recognition of Hershey as his landlord. Moreover the judgment on the reserved questions was erroneous: Ferguson v. Wright, 61 Pa. 258; Central Bank v. Early, 113 Pa. 477; Wilde v. Trainor, 59 Pa. 439. There are but two questions raised by the record, viz.: (1) Was the evidence of a parol purchase of the lot in controversy by John Anderson, sufficient to take the case out of the statute of frauds? and (2) Was the alleged lease a legal bar to the recovery of the plaintiffs ? 1. Upon the first question there is no ground for controversy. The testimony as to Anderson’s purchase, payment of purchase money, possession and improvements, was remarkably clear, considering the great lapse of time which had intervened. Had it been much less clear, distinct and positive, the court would have been bound to submit it to the jury: Richards v. Elwell, 48 Pa. 867; Milliken v. Dravo, 67 Pa. 233. Many cases of like import might be cited. 2. The law is equally well settled upon the second question. A lease does not under all circumstances estop the lessee from claiming title. The real arrangement intended to be made can always be inquired into. All the circumstances show that the deed from the Snyder heirs to Hershev was a mere mortgage to secure the repayment of the money advanced by him for Anderson. The lease, if ever made by Anderson, was not inconsistent with Hershey’s holding the title in this manner: Kunkle v. Wolfersberger, 6 W. 126. 3. It is claimed that Brinser was relieved by the alleged lease from making inquiries of the parties in possession, and that its true purpose cannot be shown as against him. No such question is fairly raised by the record. It was not proved or pretended that he had seen or knew anything of the lease. But the case of Leach v. Ansbacher, 55 Pa. 85, does not sustain the position of the defendant. The remark of Mr. Justice Thompson as to knowledge of the lease dispensing with inquiry was a dictum, unnecessary to the decision. 4. The authorities cited by Justice Thompson, in Leach v. Ansbacher, do not sustain his remark. Neither Hood v. Fahnestock, 1 Pa. 474, nor Sugden on Vendors, is to the point. Besides, Sugden’s doctrine is not approved in Pennsylvania: Billington v. Welsh, 5 Binn. 134. Possession of a tenant is notice not only of his interest under the lease, but also of a subsequently acquired title : Jaques v. Weeks, 7 W. 276; Hottenstein v. Lerch, 104 Pa. 460. It was Brinser’s duty to make inquiry of the parties in possession, and having failed to do so he cannot complain: Jamison v. Dimock, 95 Pa. 52. No. 13 May Term 1889, Sup. Ct.; court below, No. 258 August Term 1885, C. P. On August 31, 1888, the record of the foregoing cause, with a remittitur certifying the judgment pronounced by the Supreme Court therein, was filed in the court below. At the second trial on Octbber 2, 1888, the plaintiffs presented evidence substantially to the same effect as that adduced by them upon the former trial, and, in addition, the following testimony respecting the authority of Washington R. Snyder to represent the other heirs of John Snyder, deceased, in making the sale to John Anderson: Margaret Snyder, the widow of said Washington R., testified that the heirs of John Snyder were four in number, viz.: Washington R. Snyder, Mrs. Fisher, Mrs. Winagle and Mrs. Snavely; that after the administrator of John Snyder had settled his account, the three daughters of the decedent verbally authorized their brother, Washington R., to sell the lots remaining unsold, among which was lot No. 258, which Washington R. sold to Anderson, in pursuance of this authority, for $300. Mrs. Winagle testified that she and her sisters had given Washington R. authority to sell their interests in the lots belonging to their father’s estate; that he had paid her her share of the purchase money of the lot sold by him to Anderson, and had offered her sisters their shares ; that her sisters, as well as her brother Washington R., were since deceased. Christian Fisher, the surviving husband of Mrs. Fisher, one of the heirs of John Snyder, testified that Washington R. Snyder represented the wife of the witness in making the sale to John Anderson, and paid Mrs. Fisher her share of the proceeds. The defendant, in addition to substantially the same testimony that he had presented on the former trial, adduced testimony that Brinser, before purchasing the title of Hershey, was shown by the agent of the latter the lease of December 80, 1875, from Hershey to Anderson, and read it and knew its contents ; that, in accordance with the provisions of said lease, Anderson regularly paid the taxes upon the property; that these were levied in the name of fíershejq and Anderson took the receipts therefor in Hershey’s name. At the conclusion of the testimony the court, SüfflOítTON, P. J., instructed the jury in part as follows, the omitted portions of the charge being chiefly a repetition of instructions given upon the former trial: The plaintiffs claim that they purchased, that is to say, that John Anderson, whose heirs they are, purchased from Washington R. Snyder, acting for himself and for his sisters, who with him had inherited the property from their father. You have heard the evidence on this subject; the testimony of one of the sisters, that she authorized him to act for her, and that he gave her afterwards her share of the purchase money; the testimony of the husband of another of the sisters, that his wife authorized him to sell, and received her share of the purchase, money; the testimony of the mother as to the children having authorized him to sell; and from that testimony you are to determine whether the Snyder heirs, the sisters of Washington R. Snyder, did authorize him to make a contract. There is no pretence that they gave him any written authority, but plaintiffs claim, and you are to determine whether correctly or not, that they gave him authority by word of mouth to act as their agent in selling this property. You can separate that question so as to determine as to each one; whether one'gave, or the other; or whether they all gave it. If any of them gave him that authority, and made him their agent, then whatever he did under that agency would bind whoever authorized him. If they did not all authorize him, if any one or more did not authorize him, then they would not be bound by this action. The question is whether they made him an agent; if he made such a contract at all. The plaintiffs then claim that Washington R. Snyder, being such an agent, did for himself and his sisters make a contract with John Anderson to sell him the property that is in controversy now, lot 258 in the town (then at least) of Portsmouth. Then the defendant here produces a deed dated, I think, in 1858, a year after the time when it is claimed that this parol sale was made. The consideration in that deed is stated to be $150. ******** It is claimed by the defendant that Hershey got a clear title to the whole of the property by that deed, because, as they claim, there had been no sale made prior to that. That is for you to determine. If you find that there was a prior sale, then this deed could not destroy it, if you find on evidence of the nature we have stated, that there had been a prior sale. But the defendant says further that even if there had been a prior sale made, that afterwards for some reason, being unable to pay the purchase money, or for some other reason, Anderson in some way gave up his rights, or lost his title; and as evidence of that he has produced the lease you have heard spoken of; and we are asked to say to you that the fact of that lease, the fact that Anderson rented the property from Hershey, goes to show that he did not any longer own it, and did not any longer claim to own it. He says that if a man is the owner of property he would not become the tenant, he would not rent it. That is a question for you to determine under all the evidence. We cannot say to you as a matter of law, that Anderson, from the mere fact of having made that lease, lost his rights, or that the mere fact of his having made a lease proves that he did not have any rights. ******** It is contended further, on the part of the defendant, that Brinser stands in a better position, if necessary, than Hershey; that when Brinser went to buy, he was shown this lease; and that he had a right to assume and conclude from that lease that Anderson had no title, and that, therefore, even if Anderson might have had the title, yet he cannot have any claim, or his heirs cannot, against Brinser; that if Anderson had a title, he should not have made a lease and put himself on paper, on record as it were, as being only a renter; and when Brinser saw by the title papers that Anderson was only a renter, he had a right to assume that he was nothing more, and to buy from the person who claimed to have the title. I do not think that we can say to you as a matter of law that that is so in this case. When Bxinser bought, Anderson was dead. The lease did not purport to give any one possession but Anderson. When Brinser bought, these plaintiffs who are the heirs of Anderson, were in possession. As heirs they would have no right to the possession because of the lease. Therefore, when Brinser looked at the lease, and also at the fact that these plaintiffs were in possession, he had no legal right to assume before further inquiry that they were in possession because of the lease; and the rule of law is that when a person purchases a title to a property, real estate, from one who is not in possession of the property, when there are other persons in possession, in order to protect himself against any title that those who are in possession may have, he is bound to inquire from them, or to learn in some way, what this title or claim is, else he cannot by purchase cut out any claim they may have. So Brinser did not in this case get any advantage by means of his purchase from Hershey, that Hershey had not; he cannot claim any right here that Hershey could not have claimed, if Hershey were the defendant here instead of Brinser, if Hershey had not sold. You are to determine the case then so far as that part of it is concerned, as though no conveyance bad been made to Brinser, and as though the title were still in Hershey. You are to find then from all the evidence in the case, whether there was a sale originally by Washington R. Snyder to Anderson, a parol sale; and in order to find that, as we have said, you are to be satisfied by clear and distinct and definite evidence what the contract was; the property that the contract was about; how much the purchase money was to be; whether the purchaser went into possession because of the contract, and whether he made valuable improvements because of his having made that purchase and gone into that possession. If you find those facts, they would amount to a valid contract and valid sale, although there was no writing. If you find there was such a sale, then you are to find whether Washington R. Snyder, who made it, had authority from his sisters to make it for them as well as for himself. If he had authority from them, it would bind them as well as him. If he had no authority from them, then it would not be binding upon those who had not given him the authority to make it; and it would bind those who had given him authority. If you find those facts, then you are to consider further whether under that sale Anderson did get possession, and paid the purchase money, more or less; because it would not depend upon the question whether he paid all the purchase money; but whether he paid purchase money on it, went into possession, and made valuable improvements. If yoii find that he did, then you are to determine further whether afterwards he gave up in any way his rights, whatever they were. You are to determine the effect of the lease; was the lease made because Anderson had no further claim, or was it made because Hershey had purchased the right to the balance of the purchase money? and was that the way in which they undertook to secure the balance of the purchase money from Hershey to Anderson? If you find that there was a sale, that Anderson did have a title, and that his title continued after the purchase by Hershey, and after the execution of the lease, then you are to determine further whether Anderson paid to Hershey the full amount that he was entitled to get, whether Anderson paid Hershey all that he was entitled to. If he did, if you should find those facts, your verdict then ought to be generally in favor of the plaintiffs. If you find that the plaintiffs have a title by that parol sale, and that that title continued, and that all the purchase money that Hershey would under those facts have been entitled to has not been paid, then you would find a verdict for the plaintiffs, subject to the payment at such time as you fix, of whatever balance of the purchase money was due; and then, if the plaintiffs did not pay it within that time, they would lose their title. I do not know that we could enlighten you any further in the case, gentlemen, except to answer the' points that have been presented to us by the defendant in writing. The defendant asks us to say to you, 1. There is not sufficient evidence that Washington R. Snyder had any authority from the heirs of John Snyder to sell to John Anderson, to be submitted to the jury, and the verdict must be for the defendant. Answer: That instruction is refused. We have already called your attention to the ^evidence on that subject, and submitted it to you.1 2. There is no evidence that any sale made by Washington R. Snyder was ratified by tbe heirs of John Snyder but the deed to J. Hoffman Hershey is evidence that it was not, and the verdict must be for the defendant. Answer: That instruction is refused.3 3. There is not sufficient to impeach the lease to submit to the jury as against the evidence of the subscribing witnesses. Answers: To that we say, the evidence on the subject is legal evidence; and therefore we cannot withhold it from the jury; that is, gentlemen, the evidence given by the plaintiffs, that the lease was not signed by Anderson. You are to consider that evidence together with all the rest. In considering the evidence on that subject, you must also bear in mind the evidence of Hershey and the other witnesses on that subject.3 4. The evidence being without dispute that Jonas Brinser, the defendant, was shown, examined and knew the contents of the lease before he purchased, he was not bound to'inquire any further. Answer: That instruction is refused. We have already said to you that, finding these persons in possession, it was his duty to inquire how they came to hold the possession; and, if he'did not do so, his purchasing would not take away any rights from them; their rights would remain whatever they were before; he would have no greater right against them than the person from whom he purchased.4 5. That under all the evidence in the case, the verdict must be for the defendant. Answer: That is refused. The case must be passed upon by the jury on the principles which we have already stated.3 The verdict of the jury was for the plaintiffs for the premises described in the writ. Judgment having been entered thereon, the defendant took this appeal, specifying that the court erred: 1-5. In refusing to affirm defendant’s points.1 to 3 6. In submitting to the jury the question whether the lease was given to secure payment of the purchase money. 1. The testimony will be read in vain to find the terms of the contract by Anderson with the Snyder heirs, the payment of any purchase money except the $40 mentioned in the receipt of October 22, 1857, that possession was taken in pursuance of the contract, what the improvements cost, or that they were not capable of being compensated in damages. The court should have charged the jury that there was nothing to take the case out of the statute of frauds, and should have directed a verdiet for the defendant: Overmeyer v. Koerner, 81* Pa. 517; Lord’s App., 105 Pa. 459; Hart v. Carroll, 85 Pa. 508; Anderson v. Brinser, ante 876; Ballard v. Ward, 89 Pa. 858. 2. The lease in evidence was notice to Brinser of Anderson’s title as tenant, and of Hershey’s as the landlord under whom Anderson held possession, and he was not bound to inquire further: Leach v. Ansbacher, 55 Pa. 85; Anderson v. Brinser, supra. That Anderson was dead and some of his heirs were in possession when Brinser bought, does not affect this point. Their possession was notice of nothing but the title of John Anderson, whatever it be. The plaintiffs claim by no other title. What John Anderson did binds them, and the question in the case is, did he have a title ? If he had none, the plaintiffs have none. 3. If this lease can be found not to be a lease, but an agreement for the payment of purchase money, without evidence, and without showing that Brinser knew it to be other than what it purported to be, then no man can safely buy land not in the actual possession of the vendor, and the law laid down in Wilson v. McCullough, 23 Pa. 440, and Sartwell v. Wilcox, 20 Pa. 123, is a delusion. The paper should have been construed by the court, and the jury should not have been allowed to pass upon its character without evidence: Stauffer v. Latshaw, 2 W. 167; Bradley v. Grosh, 8 Pa. 49; or without proof that Brinser knew when he bought what took place at its execution : Kostenbader v. Peters, 80 Pa. 438. The writing could not be altered by parol: Martin v. Berens, 67 Pa. 463; Eargood’s Est., 1 Pears. 399. 1. The testimony fully warranted the jury in finding precedent authority in Washington R. Snyder to make the contract of sale with John Anderson. It results, then, as matter of law, that Hershey, taking the title by the deed of 1858 just as the Snyder heirs then had it, was bound to convey to Anderson upon payment of the balance of purchase money. That this was fully paid to Hershey by Anderson in his lifetime, is settled by the verdict. Anderson’s heirs are therefore the owners of the premises, and entitled to the possession, unless the alleged lease of 1875 stands in the way. 2. The jury would have been waranted by the testimony in finding that John A nderson never executed this lease. Whether they did so, we have no means of ascertaining. But even if executed by Anderson, it was not inconsistent with the theory of the plaintiffs, nor a bar to their recovery. The opinion delivered by this court, when the case was here before, fully warranted the careful instructions given the jury respecting this alleged lease and the effect to be given to it. The fact that Brinser saw it before he bought, can make no difference. The alleged lessee was not then in possession, but had been dead about a year. Brinser knew this, and it was his duty to inquire of the parties in possession whether they were there under the lease. 3. Knowledge of the existence of a lease, does not dispense with inquiry of the tenant before purchasing from the landlord. An extension or modification of an existing lease, or a subsequent purchase by the tenant of the landlord’s title, can certainly be enforced against the landlord’s vendee, who has not inquired of the tenant in possession respecting the nature and extent of his claim. It is only where the possessors of property have been given an opportunity to speak and have refused, or given false information, that they are estopped from showing the truth: [citing the same authorities cited under par. 4, argument for defendant in error, in Anderson v. Brinser, ante 376, with the addition of Howe v. Ream, 105 Pa. 543.]
129 Pa. 405Commonwealth v. Lehigh Ave. Ry. Co. (1889)
(а) The Lehigh Ave. By. Co., incorporated by act oí December 18, 1873, P. L. (1874) 458, with an authorized capital of $1,000,000, was given power to borrow money not exceeding in amount “ one half of the par ■ value of the capital stock.” Only ten per cent, or $100,000, of its capital was paid in, when it resolved to issue its bonds for a loan of $250,000.' (б) A bill in equity was filed by the commonwealth to enjoin the issue of said bonds, as contravening § 3, act of May 7, 1887, P. L. 94, enacted to enforce against railroad corporations the provisions of § 7, article XYI. of the constitution, providing that “no corporation shall issue stocks or bonds, except for money, labor done, or property actually received,” etc. 1. Inasmuch as there was no pretence that the railroad company did not intend to receive full value for the proposed bonds, if issued, no question was raised as to the applicability of the act of M% 7, 1887, or of the provision of the constitution referred to, which the said act was intended to enforce. 2. The words, “ the par value of the capital stock,” used in the incorporating act, however, were to be construed to mean capital actually paid up, and not authorized capital; wherefore, it was not error to enjoin . the issue of bonds to an amount greater than $50,000, the one half of the capital paid in to the company.
129 Pa. 422Duke v. B. & C. V. R. Extension Co. (1889)
(a) A railroad company was-authorized by a borough ordinance to construct its roadbed upon a borough street, provided it should conform to a certain grade shown by a profile drawing attached to the ordinance, no grade for the street having been established previously by the borough. 1. In an action against the company to recover damages for injuries to lots abutting upon the street, caused by an embankment made by the company in the construction of its roadbed in accordance with the ordinance, the ordinance was inadmissible as a defence relieving the company from the payment of damages.
129 Pa. 425Seipel v. B. & C. V. R. Extension Co. (1889)
No. 42 May Term 1888, Sup. Ct.; court below, No. 73 April Term 1884, C. P. On May 31,1883, Adam Seipel presented his petition for the appointment of viewers to assess the damages alleged to have been done by the Baltimore & Cumberland Yalley Extension Railroad Company, in the construction of its roadbed on Water street in the borough of Chambersburg, and thereby making an embankment in front of petitioner’s lot.
129 Pa. 429Commonwealth v. Lehigh Valley R. Co. (1889)
APPEALS BY PLAINTIPP AND DEPENDANT PROM THE COURT OP COMMON PLEAS OP DAUPHIN COUNTY. Nos. 34, 44 May Term 1889, Sup. Ct.; court below, No. 260 June Term 1887, C. P. On January 21, 1887, upon report made, the auditor general and state treasurer settled and entered an account for taxes against the Lehigh Valley Railroad Company, as follows: “For tax on scrip, bonds and certificates of indebtedness per section four of the act of June 30, 1885, for the year ending first Monday of November, 1886, as per report herewith filed: Nominal value of scrip, bonds and certificates of indebtedness, owned by residents of Pennsylvania, $24,136,000 Tax, three mills,.....$72,408 00 Deduct treasurer’s commission, . . . 412 04 Due commonwealth, .... $71,995.96 ” From the settlement thus made, the railroad company filed an appeal, with, specifications of objections, and the cause was then submitted to the decision of the court, without a jury, under the provisions of the act of April 22, 1874, P. L. 109. On May 10,1888, after hearing had, the court, SlMONTON, P. J., filed the following decision: FINDINGS OF FACT. 1. The Lehigh Valley Railroad Company is a corporation of the state of Pennsylvania, originally chartered under the name of the Delaware, Lehigh, Schuylkill & Susquehanna Railroad Company, by an act of assembly, approved April 21,1846; and by a further act, approved January 7, 1853, its name was changed to the Lehigh Valley Railroad Company. Various supplementary acts'of assembly have also been passed relating thereto. The charter of the company authorizes the creation of indebtedness and the issuance of bonds secured by mortgage. 2. In pursuance of authority conferred by its charter, the company has borrowed money and secured the same by mortgages to the amount of $25,458,000. Of the bonds included in, and secured by, said mortgage, there were held, November 1, 1886: By individuals resident in Pennsylvania, as nearly as can be ascertained by the treasurer of the company, .......$13,141,000 By individuals who were non-residents of Pennsylvania, ........ 1,322,000 By persons whose residence is unknown — no direct evidence was offered save the fact that $6,000,000 were issued in London, England, and are not known to have returned to this country, 7,482,000 In trust for persons whose residence is unknown, (of which $209,000 were held by individual trustees, residents of Pennsylvania, $10,000 by nonresident trustees, $633,000 by corporations acting as trustees, and $78,000 by trustees whose residence is unknown,)...... 930,000 By corporations of the state of Pennsylvania owning the said bonds, ..... 2,583,000 3. The $25,458,000 of indebtedness of the company consists of three mortgages, viz.: A first mortgage of $5,000,000, bearing six per cent interest payable June 1st and December 1st of-each year, the principal being due in 1898. A second mortgage of $6,000,000, due in 1911, bearing interest at seven per cent, payable semi-annually upon the first days of March and September; and A consolidated mortgage of $14,458,000, due in 1928, bearing'six per cent interest, payable semi-annually upon the first days of June and December. In November, 1886, the actual value of the bonds included in the first mortgage was 124, the actual value of the second mortgage, 141, and the actual value of the consolidated mortgage, 137. 4. The interest maturing upon the various mortgages, during the year ending with the first Monday of November, 1886, was paid in full by the company as it matured. The company did not deduct from said interest, and pay into the state treasury, the tax of three mills, as provided by the fourth section of the act of June 30, 1885. 5. The account settled by the auditor general charges tax upon all of the bonds of the company except $1,322,000, and is for the year ending with the first Monday of November, 1886. 6. The nominal or par value of bonds and mortgages issued by corporations is no reliable indication or measure of their actual value, which is usually either above or below, and very seldom the same as their par value; the actual value being dependent upon the value of the property mortgaged, the rate of interest, the date of maturity, and other conditions; some bonds upon which interest is regularly paid selling as low as 45 cents on the dollar, and others as high as 170. There are owned by residents of Pennsylvania millions of dollars worth of bonds and mortgages issued by foreign corporations not doing business in this state, the actual value of some of which bonds is above, and of others below, their nominal or par value. For the reasons given in the opinions filed in Commonwealth v. Delaware Division Canal Company, 170 September Term 1887, and Commonwealth v. City of Chester, 191 March Term 1887, in Dauphin Common Pleas [see Commonwealth v. Del. Div. Canal" Co., 123 Pa. 594, and Commonwealth v. Chester City, 123 Pa. 626], we find the following CONCLUSIONS ON LAW. 1. That § 4 of the act of June 30, 1885, is repugnant to § 1 of article IX. of the constitution of Pennsylvania, which provides that all taxes shall be uniform within the territorial limits of the authority levying the same, and is, therefore, void.a 2. That the settlement appealed from in this case is illegal and invalid because the taxes claimed therein, under § 4 of the act of June 30, 1885, are not uniform, as required by section 1 of article IX. of the constitution.11 3. That said settlement is illegal and invalid because the laws, under which it was made, and under which the taxes embraced in it are claimed, do not provide for any notice to, or right of appeal by, the owners of the corporate loans, who are claimed to be liable for the taxes.® 4. That the defendant, in this case, has a legal right to interpose the defence of the unconstitutionality of the act and the invalidity of the settlement made under it. 5. That judgment must be entered in favor of defendant.3 We, therefore, direct judgment to be entered in favor of defendant unless exceptions be filed within the time limited by law. To the foregoing decision, the defendant company filed exceptions, specifying that the court erred: 1. In not finding as a fact that “ In the year 1883 the commissioners of every county in the commonwealth made returns to the revenue commissioners, as required by law, of the valuation of all ‘ mortgages, money owing by solvent debtors, etc.,’ within their respective counties, which returns were duly considered by the revenue commissioners, who, on August 8,1883, ascertained and determined the total amount of state tax due thereon, and made an allotment of the equitable quota of said state tax to each county, according to the amount of the valuation of taxable property therein, assigning to each county the quota of state tax to be raised therefrom. Duplicate records of this valuation were filed in the offices of the state treasurer and auditor general, respectively, and a copy of its valuation transmitted to each county. Upon this valuation the state tax in each county was assessed. With slight changes, the valuation so made and transmitted remained unaltered for the years 1884 and 1885, and no other valuation or assessment was made for these years. The rate of state tax for 1883,1884, and 1885, upon mortgages and money owing by solvent debtors, was four mills, and at this rate the tax for the calendar year 1885 was assessed upon said valuation. With an unimportant exception, it has been paid in full to the commonwealth for that year. No deduction was made in consequence of the passage of the act of June 30,1885.” f 2. In not finding as a fact that of the $13,141,000 of bonds owned by residents of Pennsylvania, $2,515,000 were first mortgage bonds, and $6,233,000 were consolidated mortgage bonds, upon all of which the only interest paid during that portion of the calendar year 1886, embraced in the auditor general’s tax settlement, was the semi-annual interest paid June 1,1886, at which date not more than five months tax, under the act of 1885, could have accrued or been due upon the said bonds; that of said bonds held by residents of Pennsylvania, $4,393,000 were second mortgage bonds upon which the semi-annual payments of interest were made March 1st and September 1st, and that, at the date of the last payment of interest upon said bonds during that portion of the calendar year embraced in the auditor general’s tax settlement, no more than eight months tax could have accrued or become due under the act of June 30, 1885. 3. In not finding as a conclusion of law that the three mills tax, imposed by the act of June 30, 1885, did not apply to any portion of the calendar year 1885, for which year a four mills tax, under the act of 1881, had been assessed and collected prior to the date of the passage of the said act of 1885.s 4. In not finding as a conclusion of law that defendant is not, in any event, liable for any tax upon any of its bonds except for that proportion of a year’s tax which had accrued between the thirty-first day of- December, 1885, and the date at which the last payment of interest is due and payable upon said bonds within the year ending with the first Monday of November, 1886.1 5. In not finding as a conclusion of law that the act of June 30,1885, and particularly the fourth section thereof, is unconstitutional and void because in conflict with article Y. of the amendments to the constitution of the United States, which provides that “ no person shall be.....deprived of life, liberty or property, without due process of law.” 3 6. In not finding as a conclusion of law that the act of June 30, 1885, and particularly the fourth section thereof, is unconstitutional and void because in conflict with § 1 of article XIY. of the amendments to the constitution of the United States, which provides that “ no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.” 3 7. In not finding as a conclusion of law that the act of June 30,. 1885, impairs the obligation of contracts between the Lehigh Yalley Railroad Company and its creditors, and is, therefore, void, because in conflict with § 10 of article I. of the constitution of the United States, which forbids any state to pass any law “ impairing the obligation of contracts.” 4 8. In not finding as a conclusion of law that the act of June 30, 1885, impairs the obligation of the charter contract between the state of Pennsylvania and the Lehigh Yalley Railroad Company, and is, for that reason, void, because in conflict with § 10 of article I. of the constitution of the United States.5 The commonwealth also filed exceptions, specifying that the court erred: 1 — 4. In the several conclusions of law.a to a 5. In directing judgment to be entered for the defendant. 6. In not directing judgment to be entered in favor of 'the commonwealth for the tax upon the corporate loans of defendant, shown, by paragraph 2 of the findings of fact, to be held by individuals resident in Pennsylvania and by residents (corporations and other trustees) in trust for persons whose residence is unknown.® On April 20, 1889, the said exceptions having been argued, the court, SlMONTON, P. J., filed the following opinion : This case was tried by the court, and an opinion was filed May 10,1888, finding certain facts and directing judgment to be entered in favor of defendant, subject to the filing of exceptions within the time allowed by law, for the reasons which had been given in opinions previously filed in Commonwealth v. Delaware Division Canal Co., and in Commonwealth v. Chester City. Exceptions were filed in these cases which we overruled, and judgments were entered therein, for defendant. Thereupon the cases were removed to the Supreme Court, by writs of error on behalf of the commonwealth, where the judgments were reversed and judgments were entered in favor of the commonwealth: 123 Pa. 594, 626. Meanwhile, exceptions having been filed in this case by both plaintiff and defendant, we must now pass upon them in the light of the judgments of the Supreme Court in the cases above referred to. In the above stated cases we found as a fact, as we did, also, in this case on the trial, that the bonds of corporations secured by mortgage, differ greatly in value, and that when taxed at a given rate on their nominal value there is great inequality in the resulting taxes; and from this we drew the conclusion of law that the taxes were not uniform. No exception has been any■where taken to this finding of fact, and, indeed, could not be, in view of the evidence; but the first and second exceptions of the commonwealth are to the effect that the conclusion of law drawn from this fact, that the resulting taxes are not uniform, is erroneous, and on the authority of the ruling of the Supreme Court, in the cases above referred to, we sustain these exceptions. The third, fourth, and fifth exceptions of the commonwealth are sustained for the same reason. Defendant’s first exception is to the omission of the court to find certain facts, and its third to the failure of the court to base thereon the conclusions of law contained in said exception. It was decided in Commonwealth v. Lehigh Valley R. Co., 104 Pa. 89, that, as it was the duty of the local assessors, under § 17 of the act of June 7, 1879, P. L. 112, in taking the triennial assessment, to assess corporate loans in the hands of resident owners, it must be presumed under the evidence given in that case that they had performed that duty; and the same evidence having been given in this case as to the triennial assessment made in 1883, under the same act and its supplement of 1881, P. L. 99, which imposed a like duty on them, we are asked to draw the same conclusion here. The purpose for which the evidence is offered and the legal conclusion is asked to be drawn is this: The settlement appealed from in this case, claims tax for one year from the first Monday of November, 1885, to the first Monday of November, 1886, but if tax was collected under the local assessment for the calendar year 1885, it ought not to be collected in this case for the two months of November and December, 1885. Some evidence was offered by the commonwealth to rebut the presumption that the local assessors in certain counties did actually assess all corporate mortgages in the hands of individual citizens, but this evidence did not relate to the year 1883, in which the triennial assessment was made upon which the taxation for the years 1883,1884 and 1886 was based, and it was shown that before that assessment was made the auditor general sent to the commissioners and boards of revision of taxes of the several counties and cities of the commonwealth forms of statements and instructions relating to the assessment of property taxable for state purposes, accompanied by a circular letter, which was approved by the state treasurer and secretary of the commonwealth, the other members of the board of revenue commissioners, calling particular attention to the requirements of the law in relation to the assessment of moneys at interest. In due time returns were received by the revenue commissioners from each county and city, purporting to include all mortgages, money owing by solvent debtors, etc. After receiving these returns the revenue commissioners sent out interrogatories to the county commissioners and boards of revision of taxes, inquiring whether the interest bearing bonds of corporations held by individuals had been fully and correctly returned by the assessors, and finally, on the 8th day of August, 1883, acting upon said returns and the answers to the interrogatories, the board of revenue commissioners made, as required by law, a duplicate valuation purporting to include all mortgages and money owing by solvent debtors, etc., within the commonwealth, subject to taxation for state purposes. On these duplicates the state tax of four mills, imposed by the acts of 1879 and 1881, has been collected for the calendar years 1883, 1884 and 1885, with the possible exception of a small balance for which suit has been brought by the attorney general. Some evidence was offered by the commonwealth for the purpose of showing that the assessment made in 1883 was not so complete as it purports to be, and that in some counties corporate loans were not returned, but the evidence was very indefinite and unsatisfactory. Evidence was also offered by the commonwealth for the purpose of showing that corporate loans were not included in an assessment made in the year 1884 in the city of Philadelphia, but the assessment had no relation to, or connection with the triennial assessment, under which the taxes for 1883, 1884 and 1885 were collected, and the auditor general, the state treasurer, and the clerk to the state board of revenue commissioners, all testified that the state taxes were collected from the counties and cities on the duplicate valuation made by the board, August 8, 1883, for the years 1883, 1884 and 1885, and that no other assessment was made or ordered by the state revenue board until 1886. In Commonwealth v. Lehigh Valley R. Co., 104 Pa. 89, Justice Clark said: “We incline to the opinion, that the first tax of four mills, under the act of 1879, would be for the year 1880, and the second for the year 1881; that as the act of 1881 was passed June 10th, after the taxes of that year had accrued, the collection of which was expressly reserved, the report made in November of that year was intended as a basis of exemption from other taxation for the ensuing year. Thus the period of default falls within the time of effecting the local assessments.” In accordance with this view we think that the first three mills tax, under the act of 1885, would begin to accrue on and after January 1, 1886, and before June 30th, the date of its passage, the assessment of 1885 would have been already made, and the collection of these is expressly reserved in the act. For these reasons defendant’s first exception is sustained, and the facts are found to be as therein stated, and the defendant’s third exception is, also, sustained. Defendant’s second exception is overruled for the reason that we consider the facts irrelevant which we are therein asked to find. Defendant’s fourth, fifth, sixth, seventh, and eighth exceptions are overruled on the authority of Commonwealth v. Delaware Div. Canal Co., 123 Pa. 594, and Commonwealth v. Chester City, 123 Pa. 626, above referred to. The sixth exception on behalf of the commonwealth is, that the court erred in not directing judgment to be entered in .favor of the commonwealth, for the tax upon the corporate loans of the defendant, shown by the second paragraph of the findings of fact to be held by individuals resident in Pennsylvania, and by residents (corporations and other trustees) “ in trust for persons whose residence is unknown. ” This exception raises three separate questions. 1. As to corporate loans of defendant held by individuals resident in Pennsylvania; and so much of the exception as relates to these is sustained. 2. As to corporate loans held by individual trustees, residents of Pennsylvania. So much of the exception as relates to these is sustained, for the reason that it is a fair inference from the report of defendant to the auditor general and the findings of fact that, even if the cestuis que trust are not residents of the state, the bonds themselves are within the state in the hands of individual trustees, and, therefore, “owned or possessed by ” the trustees, and for this reason within the very words o¿ the act of June 30, 1885; as well as for the further reason that they are in the words of the act “ moneyed capital in the hands of individual citizens of the state.” They are, therefore, within the terms of the taxing act, as well as within the jurisdiction and taxing power of the state and under the protection of its laws; and, therefore, properly taxable ; and, as already stated, so much of the exception as relates to them is sustained. '3. As to the loans of defendant held by corporations of the state acting as trustees. The question whether these are taxable in the possession of the corporation trustees is not entirely clear. In Fox’s App., 112 Pa. 337, the Supreme Court held that mortgages owned by corporations were not taxed or taxable by the act of June 30, 1885. The same ruling had previously been made by Judges Mitchell and Thayer in separate cases and opinions with respect to the acts of 1879 and 1881: Appeals of Hunter and others, 18 W. N. 411, and Justice P AX-SON, referring to these, said: “It is true Judge Mitchell’s opinion refers to the act of 1881, but the language of the two acts is substantially identical, and his reasoning applies equally well to the act of 1885. They both hold, and conclusively show, that the language referred to in the two acts does not extend the tax on mortgages, etc., to corporations.” And Judge Mitchell, in his opinion, shows that the acts of 1879 and 1881 are practically identical in language with § 32, act of April 29,1844, P. L. 497, differing from the act of April 22, 1846, P. L. 486, in that this act names among taxable persons “ any corporate body,” and also taxes “ all property real or personal not taxed under existing laws, held, owned, used, or invested by any person or corporation in trust for the use, benefit, or advantage of any other person, company, or corporation.” And in Spangler v. York Co., 13 Pa. 322, it was said, in the opinion of the Supreme Court, speaking of the act of 1844, above referred to, and the act of June 11, 1840: “ It is pretty obvious, from their context, that they look only to choses in action, and other property, the legal title to which is vested in the same persons who receive and enjoy the proceeds and usance. They were, therefore, probably thought to be exclusive of a large class of eases created by deed or will, where the legal ownership of the principal sum or thing is vested in one set of persons, while the present beneficial interest or right of enjoyment is limited to others.....Then came the act of 1846.....It will be perceived by the express terms of this enactment, all property held, owned, or used, or invested for the use, benefit, or advantage of another, is made the subject of assessment.” And in Carlisle Bor. v. Marshall, 36 Pa. 397, it was said by Justice Woodward, on page 401: “ Mr. Marshall is a mere trustee, having no interest in the fund whatever. The reason why he is taxable for the fund, for state and county purposes, is that the act of 1846, expressly subjects trust funds to taxation in the hands of trustees, without regard to ownership.” In Appeals of Loughlin et al., 19 W. N. 517, the Supreme Court says: “The repealing clauses of the acts of 1879 and 1885 embrace all prior laws which are ‘inconsistent’ or ‘substantially re-enacted ’ by those acts. It is impossible for us to say that the acts of 1844 and 1846 are not ‘ inconsistent ’ with, or ‘substantially re-enacted’ by the acts of 1879 and 1885. So far as the taxation of mortgages is concerned, the latter legislation appears to provide a system full, complete, substitutionary in character, and seemingly intended to take the place of the former. In the very best view of the subject for the commonwealth, it is exceedingly doubtful whether the earlier acts can be considered as now in force for the purpose of taxing mortgages in the hands of corporations, and the mere fact of such doubt interdicts the proposed legislation.” And it may be added, that, even if the act of 1846 were still in force, corporations could not under it be taxed in the manner claimed in this case, but only through assessments made by the local assessors as provided by said act. Since, therefore, the act of 1885, under which the taxes in this case are claimed, does not tax mortgages owned by corporations, and contains no provisions taxing mortgages held in trust which are applicable to corporation trustees, and as, according to the findings of fact, the residence of the persons for whom corporations are acting as trustees is unknown, and it has not been shown that any of them are residents of this state, we think so much of the commonwealth’s sixth exception, as relates to corporate loans held in trust by corporations, must be, and it is, therefore, overruled. This disposes of all the exceptions which have, been filed, and it results from the conclusions to which we have come, that the commonwealth is entitled to recover the tax for ten twelfths of a year on all the mortgages and bonds issued by the defendant and held by individuals residing in Pennsylvania, whether for themselves absolutely or in trust for others. The judgment directed to be entered in our former opinion is therefore modified, and judgment is now directed to be entered in favor of the commonwealth and against defendant, as follows, viz.: Amount of tax,......$33,375 00 Interest at 12 per cent from March 27, 1887, 4,818 75 Attorney general’s commission, . • . 1,666 75 Total,.....$39,862 50 with interest from May 10, 1888. Judgment having been entered, the defendant company took the appeal to No. 34, specifying that the court erred: 1-5. In overruling the defendant’s exceptions.1 to 5 6. In not deciding that § 4 of the act of June 30,1885, is repugnant to § 1 of article IX. of the constitution of Pennsylvania, which provides that all taxes shall be uniform within the territorial limits of the authority levying the same, and is, therefore, void. 7. In directing judgment to be entered in favor of the commonwealth and against the defendant for 139,862.50. 8. In not directing judgment to be entered in favor of defendant. The commonwealth took the appeal to No. 44, specifying that the court erred: 1. In not sustaining the commonwealth’s sixth exception.® 2. In not holding that the commonwealth was entitled to recover the tax upon corporate loans held by corporations of Pennsylvania, in trust for persons whose residence is unknown. 3. 4. In sustaining defendant’s first and third exceptions.* s 5. In not holding the commonwealth to be entitled to a full year’s tax upon the amount of the corporate loans shown by the findings of fact to be held by individuals resident in Pennsylvania, and by resident corporations and other trustees, in trust for persons whose residence is unknown. 1. Section 1, article IX. of the state constitution provides not only that “ all taxes shall be uniform upon the same class of subjects,” but also that, even when uniform, they “ shall be levied and collected under general laws.” The taxes resulting from the operation of § 4 of the act of 1885 are not uniform : Washington Avenue, 69 Pa. 362; Banger’s App., 109 Pa. 79. As it applies only to a portion of the class of taxable subjects, the section is not a general law for the levying and collection of taxes: Wheeler v. Philadelphia, 77 Pa. 338; Commonwealth v. Patton, 88 Pa. 258; Scowden’s App., 96 Pa. 422; Strine v. Foltz, 113 Pa. 349; Philadelphia v. M. E. Church, 115 Pa. 291; Weinman v. Pass. Ry. Co., 118 Pa. 192; Ayars’s App., 122 Pa. 266. 2. The first section of the act of 1885 is identical with the seventeenth section of the act of 1879 and the first section of the act of 1881, which were before this court in Commonwealth v. Lehigh Valley R. Co., 104 Pa. 89. It was there held that the tax imposed by the acts of 1879 and 1881 was upon the actual value of the bonds, and that a legal ascertainment of that actual value, with notice to the owner of the bond and the right of appeal, was essential to the assessment of a valid tax. The first section of the act of 1885 reimposes the same tax in the same language. Recognizing the necessity of an assessment, the fourth section attempts to provide for it by requiring the treasurer of the corporation, upon the payment of interest, to assess the tax “imposed and provided for state purposes” (which is plainly the tax imposed by the first section), upon the nominal value of each bond, etc. 8. This is precisely what this court said in Commonwealth v. Lehigh Valley R. Co. was not a legal assessment. There is no ascertainment of the actual value, no notice to the owner, and no right of appeal. For these reasons the tax sought to be enforced in this case is invalid: Commonwealth v. Lehigh Valley R. Co., 104 Pa. 89; Cooley on Taxation, 259; Blackwell on Tax Titles, 114; Bratton v. Mitchell, 1 W. & S. 310 ; Miller v. Hale, 26 Pa. 432; Commonwealth v. Blair Co., 2 Pears. 416; McReynolds v. Longenberger, 57 Pa. 13; Philadelphia v. Mackey, 2 Pears. 406; Weber v. Reinhard, 73 Pa. 376. 4. Section 1, article XIV. of the amendments to the constitution of the United States provides that no state shall “ deny to any person within its jurisdiction the equal protection of the laws.” It has been held that this provision applies to taxation, and that where the tax is upon property, the only way in which “ the equal protection of the laws ” can be afforded to the tax payer is by the application of á fixed rate to the actual value of the property taxed: San Mateo Co. v. Railroad Co., 13 Fed. R. 722; Stewart v. Palmer, 74 N. Y. 186 ; Cooley on Taxation, 265-6 ; Insurance Co. v. Yard, 17 Pa. 338; Philadelphia v. Miller, 49 Pa. 448; Ervine’s App., 16 Pa. 256. 1. The court was in error in sustaining the first and third exceptions ©f the defendant, and in pursuance of the findings thus made failing to enter judgment for a full year’s tax. The report for the tax in question here was made on the first Monday of November, 1886. The settlement was made for the first tax that could be legally collected under the act of 1885, to wit: the tax for the year 1886. It may be true that the settlement purports to be for tax on scrip, bonds, etc., for the. year ending the first Monday of November, 1886, but, if the effect of the act of 1885 was to make the tax payable for the calendar year, and the tax year was to be such calendar year, then the settlement would have annexed to it its legal effect, whatever might be the words employed by the auditor general in making the settlement, and the same could properly be treated as surplusage. The settlement was for a proper amount' and for the full tax year, to which the report of the company was intended to relate: Commonwealth v. Chester City, 128 Pa. 626. 2. We complain that the court below erred in not entirely sustaining the commonwealth’s sixth exception, and in overruling so much thereof as relates to corporate loans held in trust by corporations. The cases cited by the court below had no reference to the question of the taxability of mortgages in the hands of corporations as trustees, and the act of April 22, 1846, P. L. 486, is not repealed by the act of 1879: Price v. Hunter, 21 W. N. 306; Philadelphia etc. Co.’s App., 17 W. N. 446. Property held in trust should be assessed to the trustee where he resides: 1 Desty on Taxation, 337; Borough of Carlisle v. Marshall, 36 Pa. 401; Spangler v. York Co., 13 Pa. 322; Lewis v. Chester Co., 60 Pa. 325; West Chester School District v. Darlington, 38 Pa. 157; Latrobe v. Baltimore, 19 Md. 13; Gatlin v. Hall, 20 Vt. 152; Dorr v. Boston, 6 Gray 131. 3. In the appeal of the defendant company to No. 34, the commonwealth submits in answer to the appellant’s argument, the argument submitted by the commonwealth, last year, in Commonwealth v. Delaware Div. Canal Co., 123 Pa. 594, with the opinion of this court therein. 1. The commonwealth’s third specification of error is directed to a finding of fact, but it cannot be reviewed here: Jamison v. Collins, 83 Pa. 359; Lee v. Keys, 88 Pa. 175; Brown v. Dempsey, 95 Pa. 243; Bradlee v. Whitney, 108 Pa. 362; Southern Md. R. Co. v. Moyer, 125 Pa. 506. 2. The claim of the commonwealth in this instance is for the year ending with the first Monday of November, 1886, thus overlapping and including two months of the calendar year 1885. For more than half a century, under a succession of statutes, the officers of corporations have been required to report their stock and dividends for the year ending with the first Monday of November, the tax being payable 15 days after the 81st day of December: see § 4, act of June 7, 1879, P. L. 112. Other taxes have been collected, some for the calendar year, and some for years ending at various dates. It was the undoubted intention of the legislature in 1885, to fix the same tax year for corporate loans as had so long prevailed for corporate stock. There are no objections to that, except that the act must not be so enforced as to produce double taxation for a portion of the year 1885, which was clearly not intended and is never to be presumed. 3. The act of June 30, 1885, does not include bonds held by corporations either in trust or otherwise. Property held in trust is taxable, if at all, to the legal owner. But the legal owner in this case is a corporation, and the section applies only to natural persons: Fox’s App., 112 Pa. 337. Nor does the act of 1846 include such property: Loughlin’s App., 19 W. N. 519.
129 Pa. 458Commonwealth v. Delaware L. & W. R. Co. (1889)
APPEALS BY PLAINTIFF AND DEFENDANT FROM THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY. Nos. 35, 45 May Term 1889, Sup. Ct.; court below, No. 185 September Term 1887, C. P. On May 20, 1887, upon report made, tbe auditor general and state treasurer stated and entered a settlement of account for taxes against the Delaware, Lackawanna & Western R. Co., of three mills upon the nominal value of scrip, bonds, and certificates of indebtedness, owned by residents of Pennsylvania, per § 4, act of June 30, 1885, P. L. 193, for the year ending first Monday of November, 1886. From this settlement. the defendant company appealed. The cause was submitted to the decision of the court, without a jury, under the provisions of the act of April 22, 1874, P. L. 109. The specifications of objection to the settlement, the decision of the court below, Simonton, P. J., the exceptions thereto filed by both plaintiff and defendant, the opinion of the court below disposing of the exceptions, and the final judgment, raised essentially the same questions raised in Commonwealth v. Lehigh Y. R. Co., ante, 429. Judgment having been entered as of May 10, 1888, in favor of the commonwealth for the tax at three mills “ for ten twelfths of a year upon $885,026.62, being upon the amount of mortgages, etc., owned by residents of Pennsylvania “ as nearly as can be ascertained,” with attorney general’s commissions and interest, total, $2,787.61, the defendant company took the appeal to No. 35, and the commonwealth took the appeal to No. 45, the assignments of error filed being essentially the same with those filed in the case referred to.
129 Pa. 460Commonwealth v. North Penna. R. Co. (1889)
APPEALS BY PLAINTIFF AND DEFENDANT FROM THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY. Nos. 39, 47 May Term 1889, Sup. Ct.; court below, No. 509 September Term 1887, C. P. On April 13, 1887, upon report made, the auditor general and state treasurer stated and entered a settlement of account for taxes against the North Pennsylvania Railroad Co., of three mills upon the nominal value of scrip, bonds, and certificates of indebtedness, owned by residents of Pennsylvania, per § 4, act of June 30, 1885, P. L. 193, for the year ending first Monday November, 1886. From this settlement the defendant company appealed. The cause was submitted to the decision of the court, without a jury, under the provisions of the act of April 22, 1874, P. L. 109. The specifications of objection to the settlement, the decision of the court below, Simonton, P. J., the exceptions thereto filed by the plaintiff and defendant, the opinion of the court below disposing of the exceptions, and the final judgment, raised essentially the same questions raised in Commonwealth v. Lehigh Y. R. Co., ante, 429. Judgment having been entered in favor of the commonwealth for the tax on $5,547,500, for ten twelfths of a year, with attorney general’s commissions and interest, total, $17,317.45, the defendant company took the appeal to No. 39, and the commonwealth took the appeal to No. 47, the assignments of error filed raising essentially the same questions with those filed in the case referred to.
129 Pa. 461Commonwealth v. Clearfield Coal Co. (1889)
129 Pa. 463Commonwealth v. New York, L. E. & W. R. Co. (1889)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY. No. 41 May Term 1889, Sup. Ct.; court below, No. 250 March Term 1889, C. P. On June 28, 1888, upon report made, the auditor general and state treasurer stated and entered a settlement of account for taxes against the New York, Lake Erie & Western Railroad Conlpany as follows: “ For tax on scrip, bonds, and certificates of indebtedness, per § 4 of the act of June 30, 1885, for the year ending first Monday of November, 1887, as per report herewith filed: Nominal value of scrip, bonds, and certificates of indebtedness, owned by residents of Pénnsylvania,..... 178,573,485.10 Tax, three mills, ..... $235,720.45 Deduct treasurer’s commission, . ■ . 1,228.60 Due commonwealth, . . . $234,491.85 ” From the said settlement the railroad company appealed, filing specifications of objection to the settlement which, inter alia, averred: 2. The tax to which bonds and mortgages are made subject by the act of June 30, 1885, is an annual tax upon the actual value thereof; and before any tax can lawfully be due upon any bond or mortgage, there must have been a legal assessment or ascertainment of its value, with notice to the owner and the right of appeal. The loans of the company appellant bear different rates of interest and differ in market and in actual values. Neither the company nor its officers were authorized by law to make any valuation or assessment of its bonds for taxation, nor were they furnished with any such valuation or assessment made by any properly constituted authority. Neither the company nor its' officers, therefore, could lawfully have deducted any tax from any interest paid during or for the year, or any part thereof, for which the tax is charged.1 3. If the act of June 30,1885, requires'that the company, or the treasurer thereof, when paying interest to its creditors, shall retain from them a so-called tax upon bonds which had not been assessed and valued by lawful authority, or makes the company or the treasurer thereof liable unto the commonwealth for failure to collect said so-called tax, then the said act is unconstitutional and void, because in conflict with article V. of the amendments to the constitution of the United States, which provides that “ no person shall be ... . deprived of life, liberty or property without due process of law; ” and also because in conflict with § 1 of article XIY. of the amendments to the constitution of the United States.2 4. The said act of assembly is void, also, because in conflict with § 9 of article I. of the constitution of Pennsylvania, which provides that no person shall be “ deprived of Iris life, liberty or property unless by the judgment of his peers or the law of the land.” 3 5. The said act of assembly is void, also, because in conflict with § 10 of article I. of the constitution of Pennsylvania, which provides that private property shall not be taken for public use without due authority of law.4 6. The act of June 30,1885, so far as it relates to the taxation of the bonds, mortgages or other loans of the company appellant, or requires the said corporation, or the treasurer thereof, to deduct any tax when paying interest thereon, is incomplete, inoperative, unconstitutional and void, the said act failing to provide any means for the assessment of said bonds, mortgages and loans, or for ascertaining their value or the amount of tax to be deducted from the interest paid.5 7. If the act of June 30,1885, does not require an assessment or valuation of bonds and mortgages owing by corporations, but requires the treasurers of corporations to calculate the tax at three mills upon the nominal, regardless of the real, value of said bonds and mortgages, which bonds and mortgages, as in the case of this corporation, differ in real and in market values, and to retain the tax so calculated from the interest paid to the holders of said bonds and mortgages, then the said act is in conflict with § 1 of article IX. of the constitution of Pennsylvania, which requires that “ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” For the same reason the said act of June 30, 1885, is also void, because in conflict with § 1 of article XIY. of the amendments to the constitution of the United States.6 8. The act of June 30, 1885, and other acts of assembly relating to the taxation of moneys at interest, require that bonds and mortgages owing by natural persons, and shares of stock in banks and other corporations, shall be taxed at their actual value. If the said acts or any of them require that bonds and mortgages owing by corporations shall be taxed in a different manner, that is to say, upon their nominal value regardless of their real value, then the said act or acts are void because in conflict with § 1 of article IX. of the constitution of Pennsylvania, which requires that “all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax,” and also because in conflict with § 1 of article XIY. of the amendments to the constitution of the United States.7 9. The act of June 30,1885, in so far as it requires the company appellant or the treasurer thereof to deduct from the interest due to its bondholders a tax which has not been lawfully assessed, impairs the obligation of the contract between the said company and its creditors, and is void because in conflict with § 10 of article I. of the constitution of the United States, which forbids any state passing any law impairing the obligations of contracts.8 10. The charter granted to the corporation appellant neither requires nor permits the said corporation to act as a collector of state taxes, and so much of the act of June 30, 1885, as imposes upon it additional burdens by requiring it to collect, or become responsible for, the taxes due by other corporations and individuals, its creditors, is in violation of § 10 of article I. of the constitution of the United States, which forbids any state passing any law impairing the obligations of contracts, and is, therefore, void.9 22. The New York, Lake Erie & Western Railroad Company is not a corporation of the state of Pennsylvania, but is a corporation of, and located in, the state of New York, having its principal office and place of business in the city of New York, in said state, from which state alone it derives its corporate existence, and in which state, namely in the city of New York, all of its bonded indebtedness was contracted, and the bonds actually issued and sold, and are payable, principal and interest; and the said interest is there actually paid to persons there doing business. The said company has no right, under its charter, to assume the duties of an assessor or collector of taxes for the state of Pennsylvania; neither is it competent or legal for the state to impose such duties upon said company; and the act of June 30,1885, if it requires that this company, or the treasurer thereof, shall, in paying interest in the state of New York, retain any part of the interest stipulated to be paid to the holders of its bonds, impairs the obligation of the charter contract between the state of New York and the said company, and also the obligation of the contract between the said company and the owners of its bonds and is, therefore, void, because repugnant to paragraph 1 of § 10 of article I. of the constitution of the United States, which provides that no state shall pass any law impairing the obligations of contracts.10 The cause was submitted to the decision of the court, without a jury, under the provisions of the act of April 22,1874, P. L. 109, and after hearing had, the court, Simonton, P. J., filed the following decision: FINDINGS OF FACT. 1. The defendant, the New York, Lake Erie & Western Railroad Company, is a corporation chartered by the state of New York. The present corporation was formed by certificate filed in the office of the secretary of state of New York, April 27, 1878, by the purchasers, at judicial sale, of the property and franchises of the Erie Railway Company, which last named company had been organized also under the laws of the state of New York, and was the successor of the New York & Erie Railroad Company, likewise a corporation of that state. The defendant is authorized to do business in Pennsylvania, and, in pursuance of the act of April 22,1874, P. L. 108, entitled “ An Act prohibiting foreign corporations from doing business in Pennsylvania without having known places of business and authorized agents,” duly certified to the secretary of the commonwealth of Pennsylvania the establishment of an office at Susquehanna in Susquehanna county, in this state, and the appointment of an agent authorized to transact business therein. 2. The main line of railroad owned and operated by defendant extends from Jersey City, New Jersey, to Dunkirk, New York, about 428 miles, of which 42 are within the counties of Pike and Susquehanna, in Pennsylvania, having been constructed there to avoid engineering difficulties, under authority conferred by an act of the general assembly of Pennsylvania, entitled “An Act to authorize the New York & Erie Railroad Company to construct said road through a portion of Susquehanna coupty, in the state of Pennsylvania,” approved February 16, 1841, P. L. 28, and an act entitled “ A supplement to an act entitled ‘ An Act to authorize the New York & Erie Railroad Company to construct said road through a portion of Susquehanna county, in the state of Pennsylvania,’ approved the sixteenth day of February, one thousand eight hundred and forty-one,” approved March 26, 1846, P. L. 179. 3. Defendant has paid to the state of Pennsylvania annually the sum of $10,000, required by the act of March 26,1846, P. L. 179, and has also paid the annual taxes upon capital stock required by said act. 4. In pursuance of authority granted by the laws of the state of New York, the property of the company has been mortgaged to the extent of $78,573,485.10. The mortgages are of different issues, bearing different rates of interest, and differ in actual values. The following is a detailed statement of them: ******** The first nine mortgages named in the list were not issued by the present corporation. It purchased the property and franchises of the former corporations, subject to the lien of the said mortgages. The other six mortgages were issued by the present corporation. All of the above-mentioned indebtedness was contracted, and the mortgages, and the bonds included in them, were issued and sold in the city and state of New York, to nonresidents of Pennsylvania, the principal and interest being payable either there or in London, England, at the option of the holder. The company maintains a financial agency in London, and some of its coupons are there paid, but the most of them are paid at its office in New York city. With the exception of the funded coupon bonds of 1885 and the income bonds, all of the said bonds and mortgages were issued prior to June 30,1885. 5. So far as the company paid the interest maturing upon the various mortgages during the year ending with the first Monday of November, 1887, it paid the same in full, and did not deduct from said interest and pay into the state treasury, a state tax of three mills, in accordance with the provisions of the fourth section of the act of June 30, 1885. Upon the income bonds amounting to $508,008, no interest was paid, the earnings of the company being insufficient for that purpose. 6. The actual values of the bonds included in the various mortgages ranged, in 1887, from fifteen per cent below, to thirty-five per cent above, their nominal or par value; the first mortgage bonds selling upon the New York stock exchange in November of said year at 119, second mortgage bonds at 111, third mortgage bonds at 105, fifth mortgage bonds at 104, first consolidated mortgage bonds at 135, first consolidated funded coupon bonds at 130, re-organization first lien bonds at 105, second consolidated mortgage bonds at 98f to 101i, collateral trust bonds at 104, funded coupon bonds at 84f to 89¿. 7. The bonds included in the $78,573,485.10 of mortgages are widely scattered, being owned by residents of various states in the Union, and largely held also in England, Scotland, and other foreign countries. As the bonds are all coupon bonds, and the coupons are seldom presented for payment by the persons owning the bonds, but by messengers of banks and other collection agencies, frequently passing through three or four banks before reaching the office of the company for payment, several thousand coupons being frequently presented for payment in a single day, the bank messengers and other collection agents presenting the coupons for payment seldom knowing the names or residence of the owners of the coupons themselves, it was impossible for the officers of the company, upon the payment of interest, to determine what bonds, if any, were owned by residents of Pennsylvania. They could only have done so by suspending the payment of interest upon all bonds until the ownership of each could have been ascertained, which ascertainment would have required an investigation necessarily consuming several weeks or months of time, entailing expenses and results to avoid which the company deemed it wiser to pay the interest upon all its bonds in full, itself accepting whatever responsibility for taxes due the state of Pennsylvania, which might accrue from said payment, in regard to such bonds as might afterward prove to have been owned by residents of said state. 8. In the report made by the treasurer of the company to the auditor general, it was stated that none of the bonds were known to be owned by residents of Pennsylvania, but subsequent investigations by the officers of the company developed evidence from which we find that $2,378,000 of bonds were owned in Pennsylvania, of which $852,000 were held by individuals and firms, and the balance by corporations. 9. The account settled by the auditor general, from which the appeal in this case was taken, charges a tax of three mills upon all the bonds included in the various mortgages of the company, and is for the year ending with the first Monday of November, 1887. 10. The nominal or par value of bonds and mortgages issued by corporations is no reliable indication or measure of their actual value, which is usually either above or below, and very seldom the same as, their par value; the actual value being dependent upon the value of the property mortgaged, the rate of interest, the date of maturity, and other conditions; some bonds upon which interest is regularly paid selling as low as 45 cents on the dollar, and others as high as 170. In the case of mortgages issued by individuals, which are taxable at their actual value, the actual and par values more nearly agree, than in the case of those issued by corporations. There are owned by residents of Pennsylvania millions of dollars worth of bonds and mortgages issued by foreign corporations not doing business in this state, the actual value of some of which bonds is above, and of others below, their nominal or par value. CONCLUSIONS ON LAW. Most of the questions involved in this appeal have been discussed and decided in the cases of the Delaware Division Canal Company and others, 123 Pa. 594, and require no elaboration here. We hold that, 1. The commonwealth is entitled to a full year’s tax upon $852,000 of bonds owned by individuals and firms residing in P ennsylvania.13 2. The act of 1885 does not impose a tax upon bonds owned by corporations. 3. The act of 1885 does not impose a tax upon bonds owned by non-residents of Pennsylvania. All objections specified in defendant’s appeal, the affirmance of which would lead to conclusions other than those above stated, are hereby overruled. It follows from the foregoing conclusions that the commonwealth is entitled to recover— Tax,........$2,556.00 Attorney General’s commission, . . . 127.80 Interest at 12 per cent from August 29, 1888 . 191.70 Total, ..... $2,875.50 for which amount judgment is directed to be entered in favor of the commonwealth, unless exceptions be filed within the time limited by law. To the foregoing decision the defendant company filed exceptions, specifying that the court erred: 1-10. In overruling the specifications of objection.1*010 11. In not deciding that it is not within the constitutional authority of the state of Pennsylvania to impose upon a corporation of the state of New York or upon its treasurer, being a resident of the state of New York, the duty of assessing, in the state of New York, a tax upon bonds and mortgages issued and sold in the state of New York upon the payment of interest made in the city of New York; nor to hold the said company or its treasurer responsible for failure to assess and deduct such a tax from interest paid upon its bonds and mortgages in the city and state of New York; and the act of June 80, 1885, if it shall be construed to authorize the account settled by the auditor general in this case, or any part thereof, is void because in violation of a necessary implication of the constitution of the United States, which confines the power of each state to subjects within its territorial sovereignty, and by reason of which aE subjects over which the sovereign power of a state does not extend are exempt from taxation or control by said state.11 12. In not deciding that the fourth section of the act of 1885 impairs the obligation of the contract contained in the acts of assembly under which defendant constructed a portion of its raEroad in Pennsylvania, and is therefore void, because in violation of paragraph 1 of § 10 of article I. of the constitution of the United States.13 13. In the first conclusion of law.13 14. In directing judgment for the commonwealth for $2,875.50. On May 9, 1889, the said exceptions being argued, they were overruled, without opinion filed, and judgment was entered in accordance with the decision. Thereupon the defendant company took this appeal, specifying that the court erred: 1-14. In overruling defendant’s exceptions.1 to 14 15. In not directing judgment to be entered in favor of defendant. 1. The relation of the defendant company to the state has been determined by this court to be that of a foreign corporation: New York etc. R. Co. v. Sabin, 26 Pa. 242; Erie Railway Co. v. Commonwealth, 66 Pa. 84; Commonwealth v. New York etc. R. Co., 114 Pa. 340. In the last named suit it was distinctly charged in the information filed by the attorney general, that the defendant was a foreign corporation, and as such was indirectly holding lands in Pennsylvania without authority of law, which lands, being held by a foreign corporation were subject to escheat. This view of the matter was sustained by this court. The case before us, therefore, is one in which the state of Pennsylvania seeks to compel a foreign corporation and its officers, all of whom are residents of other states, to act as collectors of state taxes. 2. The tax is not imposed upon the corporation, but upon the holders of its mortgages; the corporation being made the collector of the taxes and the attempt being to hold it responsible for taxes alleged to be due from its creditors, but which it has not collected. “Foreign corporations, exercising their rights and franchises under the laws of other states and countries, are beyond the reach of our processes of taxation. We could not require them to comply with any such regulation of our law, and, therefore, they are necessarily excluded from the provisions of the act. Such foreign corporations as are engaged in business in this state, might doubtless be required to comply, as a condition of their right to do so, but this could only embarrass the action of the local assessor, and upon this ground, doubtless, they are wisely excluded from the operation of the act: ” Mr. Justice Clark, in Commonwealth v. Del. Div. Canal Co., 123 Pa. 594. 3. Bonds held by non-residents are not taxable, and, as to them any law which interferes between the company and the bondholder impairs the obligations of the contract and is void: State Tax on Foreign-Held Bonds, 15 Wall. 300. And although the act of 1885 does not impose a tax upon foreign-held bonds, nevertheless, by compelling a delay in the payment of interest, it does interfere between the company and the non-resident bondholder, and impairs the obligation of the contract to pay the interest upon a certain day. But aside from its effect upon bonds of non-residents, the act cannot be sustained even as to those owned in Pennsylvania. Different sections of the act provide different methods of assessment. Some of the mortgages and evidences of indebtedness are to be assessed by local assessors at their actual value; while another bond worth 150 has a tax equivalent to only two mills on its actual value. [Proceeding, the argument of the counsel in Commonwealth v. Lehigh V. R. Co., ante, 429, was repeated as to the other questions raised.] 1. As to the constitutionality of the act of June 30,1885, the commonwealth submitted the argument in favor of the commonwealth reported at length in Commonwealth v. Delaware Div. Canal Co., 123 Pa. 606. 2. The fourth section of the act of June 30,1885, in express terms, applies not only to corporations incorporated by or under the laws of this commonwealth, but also to such as are incorporated by the laws of any other state, or of the United States, and doing' business in this commonwealth. The act of 1868 taxed the gross receipts of “ every railroad company..... now or hereafter doing business in this state.” The Erie Railway Company was held to be within these terms in the case of Erie Railway Co. v. Commonwealth, 66 Pa. 84. This case was affirmed by the case of Erie Railway Co. v. Pennsylvania, 21 Wall. 492. As a consequence, the company is subject to the jurisdiction of Pennsylvania for the purposes of taxation and judicial proceedings, and is subject to all such duties as may be required to be performed by an individual, not a citizen of Pennsylvania, who is for the time being within her borders. 3. The relations of a railroad corporation, incorporated by a foreign state, to a state which permits the construction and maintenance of a portion of its line within it, are fully discussed in Wood’s Railway Law, 27, 28, 31-35, 578. It follows from the doctrines therein laid down that a foreign corporation, subject to the jurisdiction of this state, may be required to perform such duties as are imposed upon it by the state. The power of the state to require the performance of the duty in question, from such as are subject to its laws, is fully settled: Commonwealth v. Del. Div. Canal Co., 123 Pa. 594; Paul v. Virginia, 8 Wall. 168; Fire Association v. New York, 119 U. S. 110; Hare’s Amer. Const. Law, 666-7.
129 Pa. 478Commonwealth v. New York, L. E. & W. R. Co. (1889)
APPEALS BY PLAINTIEE AND DEFENDANT FROM THE COURT OE COMMON PLEAS OE DAUPHIN COUNTY. Nos. 36, 46 May Term 1889, Sup. Ct.; court below, No. 200 September Term 1887, C. P. On April 13, 1887, upon report made, the auditor general and state treasurer stated and entered a settlement of account for taxes against the New York, Lackawanna & Western Railroad Company, of three mills upon the nominal value of scrip, bonds, and certificates of indebtedness, OAvned by residents of Pennsylvania, per § 4, act of June 30, 1885, P. L. 193, for the year ending first Monday of November, 1886. From this settlement the defendant company appealed. The cause was submitted to tbe decision of the court, without a jury, under the provisions of the act of April 22,1874, P. L. 109. The specifications of objections to the settlement, the decision of the court below, Slmonton, P. J., the exceptions thereto filed by both plaintiff and defendant, the opinion of the court below disposing of the exceptions, and the final judgment, raised essentially the same questions as were raised in Commonwealth v. Lehigh V. R. Co., ante, 429, and Commonwealth v. New York etc. R. Co., ante, 463. Judgment having been entered in favor of the commonwealth for the tax for ten twelfths of one year, attorney general’s commission and interest, total, $2,546.86, the defendant company took the appeal to No. 36, and the commonwealth took the appeal to No. 46, the assignments of error raising essentially the same questions raised in the cases referred to.
129 Pa. 480Commonwealth v. Baily (1887)
No. 30 May Term 1887, Sup. Ct.; court below, No. 65 January Term 1887, C. P. To tbe number and term of the court below, an action of debt was brought by the commonwealth against Silas M. Baily, Charles H. Rush and others, to recover upon the bond of the said Silas M. Baily, as state treasurer.
129 Pa. 492Commonwealth v. McCandless (1886)
129 Pa. 506Macrum v. Marshall (1889)
2 OF ALLEGHENY COUNTY. No. 168 October Term 1887, Sup. Ct.; court below, No. 207¿ July Term 1886, C. P. No. 2. On May 6, 1886, William Macrum, trustee for creditors o ' the Allegheny Savings Bank, brought assumpsit against Thomas M. Marshall, to recover a balance alleged to be due to the plaintiff from the defendant, as indorser of a note drawn by S. Woods, Jr. The defendant pleaded payment and the statute of limitations.
129 Pa. 514Dean v. Pennsylvania R. (1889)
APPEAL BY PLAINTIFF EKOM THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 153 October Term 1888, Sup. Ct.; court below, No. 763 December Term 1885, C. P. No. 1. To the number and term of the court below, Isaac N. Dean brought case against the Pennsylvania Railroad Company, lessee, operating the Southwest Pennsylvania Railroad, to recover damages for personal injuries alleged to have been suffered by the plaintiff in consequence of negligence on the part of the defendant. Issue. Atthe trial February 6, 1888, testimony was adduced on the part of the plaintiff, from which the following facts were made to appear: . On the morning of November 25,1882, Isaac N. Dean, the plaintiff, who was then about twenty-two years of age and resided near Frost station, upon the line of the Southwest Pennsylvania railroad in Fayette county, went to a store not far from said station, known as the Youngstown store, for the purpose of procuring supplies for his father. When he was about to start home, a wagon drawn by two mules, in charge of William Fields, its regular driver, was starting in the same direction with a load of supplies for the workmen in the coke company’s employ, and Fields invited the plaintiff to ride with him in the wagon. The plaintiff accepted the invitation, got into the wagon and took a seat upon some flour sacks, with his back to the mules. The wagon then started, Fields driving, and his son, a boy about twelve years old, being with him on the driver’s seat. Their way led past Frost station. At a point about 324 feet distant from said railroad, the wagon passed through a set of bars and turned into a public road which crosses the railroad, at grade, at Frost station. After passing through the bars the wagon was halted at the corner of the Blackburn House, about 300 feet from the railroad, while the bars were put up by Fields’s son. While this was being done, the plaintiff looked around at the railroad. A stretch of 300 feet of the track, commencing at a point about 1300 feet distant from the crossing of the road upon which the wagon was standing, could be seen by the plaintiff. He neither saw nor heard any train approaching. He was entirely familiar with the locality, having lived about Frost station for nine months, during which time he had passed over the crossing, which the wagon was about to approach, five or six times a month, on an average. He knew that a train was due about that time, but supposed it had passed. When the bars were closed young Fields got into the wagon again, and the mules were started on at “ a right fast trot. ” Between the Blackburn House and a point 124 feet distant from the railroad, the view of the latter from the public road is at times obstructed by trees and houses. At the latter point the public road commences to descend to reach the level of the railroad crossing, making a descent of five and seven tenths feet and passing through a cut five or six feet deep. The evidence was conflicting as to the extent to which a person passing through this cut in a wagon, would have a view along the railroad track. Andrew J. Gilmore, a surveyor called by the plaintiff, testified that a train at any point on the railroad, within at least 1300 feet of the crossing, could be seen from a wagon in any part of the cut, except perhaps at the end of it next the railroad. The plaintiff denied that this could be done, but conceded that at a distance of ten feet from the track a person would have an unobstructed view along it for a considerable distance. Upon, reaching the brow of the.hill where the descent to the. railroad commences, Fields checked the speed of his team to a. walk, but kept on without stopping, and as they started down the descent the mules commenced to trot again, and kept at a rapid trot till they got on the crossing. At no time after leaving the -Blackburn House and before the wagon got to the crossing, did the plaintiff look to see if a train was coming. Nor did he make any request of Fields to stop the wagon. When the mules were just starting across the'track the occupants of the wagon were startled by the whistle of an approaching train of the defendant, sounding the danger signal. The train was then about 125 feet from the crossing. Fields tried to whip up his mules and hurry them across the track, but there was not time to get over, and the wagon was struck by the train.. The plaintiff being weak in consequence of a recent attack of typhoid fever, was unable, as he claimed, to disengage his feet from sacks of flour by which they were surrounded',’ and therefore could not jump out of the wagon, and in the collision between the train and the wagon he received severe injuries. ... • In support of the allegation of the defendant’s negligence, several witnesses testified that they were in a position to hear any signals for the road .eiossmg, and heard nothing until the sounding of the danger signal when the wagon was already upon the track. There was testimony tending to show that the train was running at the rate of 35 or 40 miles an hour. At the conclusion of the plaintiff’s testimony the defendant moved the court for a judgment of compulsory nonsuit, upon the ground that it appeared from the uncontradicted evidence that the plaintiff did not stop, look and listen, before crossing the railroad track, and he was therefore guilty of such contributory negligence as to prevent his recovery; whereupon the court, Collier, J., entered judgment of nonsuit. A motion to take off the nonsuit having been filed, and subsequently argued, the court without opinion filed, overruled the motion. The plaintiff then took this appeal, assigning inter alia, for error: 1. The entry of a compulsory nonsuit. 2. The refusal to take off the nonsuit. 1. The evidence shows pretty clearly that the defendant company gave no warning of the approach of the train to the crossing, until the danger signal was sounded. The rights and duties of travelers on highways, and of railway companies, at grade crossings, are reciprocal: C. I. Co. v. Stead, 95 U. S. 161; L. etc. R. Co. v. Head, 4 Am. & Eng. R. Cas. 619. The company was bound to take such precautions as would insure the safety of persons crossing its track on the public road, and was negligent in not giving proper warning: L. etc. R. Co. v. Goety, 14 Am. & Eng. R. Cas. 627; Funston v. Railroad Co., 14 Am. & Eng. R. Cas. 640; Nehrbas v. Railroad Co., 14 Am. & Eng. R. Cas. 670; Loucks v. Railroad Co., 19 Am. & Eng. R. Cas. 305. 2. The rule of contributory negligence should be strictly "construed. Nothing but positive negligence on the part of the plaintiff, either acting alone or concurring with that of the defendant, "will furnish a defence to the action. The evidence discloses no ilegligence on the part of Dean. He did exactly what any prudent "man would do under like circumstances. Having looked and listened at the point where Fields stopped the wagon, and seeing nothingCofthe. approaching train, he allowed the driver to proceed without protest. There was no evidence that Fields was not a careful driver, competent in every way to manage his team. 8. There is no reason for imputing to the plaintiff the negligence of Fields, there being no relation of master and servant, or principal and agent, between them, and the plaintiff not being in control of the team, but being in the wagon merely through the kindness of Fields: Carlisle Borough v. Brisbane, 113 Pa. 544; Beach on Cout. Negligence, § 36; D. etc. Turnp. Co. v. Stewart, 2 Metc. (Ky.) 119; Bement v. Railroad Co., 36 N. J. L. 225; Transfer Co. v. Kelly, 36 Ohio 86 (38 Am. Rep. 558); Albion v. Hetrick, 90 Ind. 545 (46 Am. Rep. 230); Cuddy v. Horn, 46 Mich. 596 (41 Am. Rep. 178) ; Robinson v. Railroad Co., 66 N. Y. 11 (23 Am. Rep. 1) ; Dyer v. Railway Co., 71 N. Y. 228; Masterson v. Railroad Co., 84 N. Y. 247 (38 Am. Rep. 510). Crescent Tp. v. Anderson, 114 Pa. 643, is distinguishable, because there the plaintiff voluntarily agreed to test a known danger. In that case, also, as in Donnelly v. Railroad Co., 37 Alb. L. J. 376, the plaintiff was as much in control of the vehicle as the driver. 1. Admittedly Fields and Dean did not stop, look and listen before starting across the track, but attempted to cross in front of a train in fuE sight, and were injured in this attempt. Dean was nonsuited, not because of the negligence of Fields, though he might well have been, but because of his own negEgence, which was clear on his own testimony. If he had looked, he could not have failed to see the train, which was in full view, and could have saved himself by telling Fields to stop, or by jumping out of the wagon, for he had plenty of time to do either or both. The reason he did neither was because of his own carelessness. 2. This case is on all fours with Crescent Tp. v. Anderson, 114 Pa. 643. Dean was familiar with the situation, knew that a train was due about that time and knew he was in a place of danger. The danger that caused his injury was as obvious to him as to the driver. He was bound to look, and it is vain for him to say lie did not see what was open and obvious: Carroll v. Railroad Co., 12 W. N. 348; Moore v. Railroad Co., 108 Pa. 353. He was under an imperative legal duty to stop, look and listen: Lehigh etc. R. Co. v. Brandtmaier, 113 Pa. 616. His neglect of this duty is not excused because he chose to place confidence in his driver: Carlisle Borough v. Brisbane, 113 Pa. 544, differs entirely from this case, in that Brisbane did not and could not know the dangerous condition of the street.
129 Pa. 525Hill v. Township of Tionesta (1889)
129 Pa. 527Road in Green & Kingsley Tps. (1889)
129 Pa. 529Pryer v. Mark (1889)
129 Pa. 534Commonwealth v. Taylor (1889)
APPEAL BY DEFENDANT FROM THE COURT OF OYER AND TERMINER OF GREENE COUNTY. No. 124 October Term 1889, Sup. Ct.; court below, No. 1 January Term 1888, O. & T. On January 6, 1888, tbe grand jury returned as a true bill an indictment charging George Clark, Frank Clark, Sr., and Zach. Taylor, with tbe murder of William McCausland. Issue. On April 3, 1888, a severance was had, and the trial of George Clark was ordered. On April 14th, tbe jury returned a verdict of guilty. Judgment having been passed, the case was taken to this court by writ of error to No. 191 October Term 1888, and by opinion filed February 11, 1889, the judgment was affirmed. See Clark y. Commonwealth, 123 Pa. 555, where the material facts relating to the murder sufficiently appear. .' On January 15, 1889, the ease of Commonwealth v. Zach. Taylor was called for trial. In the examination of the jurors as they were called to be impaneled, Theodore Warren, sworn on his voir dire, said: To defendant’s counsel: That he had read the newspaper account of the murder, all that was published in the Waynesburg Democrat; all that was published in the Democrat about the coroner’s inquest, the habeas corpus proceedings, and about the trial of George Clark in April, 1888; was not present at the trial; had.formed an opinion with regard to the guilt or innocence of this defendant; could not say it was a fixed opinion ; a very strong impression, though, and it would require pretty strong evidence to change it; if sworn as a juror, he would try to render a verdict without being influenced by that opinion, but would rather not undertake it. By the court: The question is, whether if you were sworn as a juror you could go into the jury box and, after hearing all the evidence in the case could give this defendant a fair and impartial trial, and be governed by the evidence alone, without being influenced by the impression or opinion you may now entertain? A. Yes, sir; I think I could, to the best of my ability. Q. We are not asking you what you think about it. We are asking you whether you could and whether you would? A. If I was sworn as a juror? Q. Oh, yes, if you were sworn. If you were sworn as a juror, could you and would you give this defendant a fair and impartial trial from the evidence you would hear here in court, without being influenced by your opinion? A. Yes, sir. By the court: Challenge for cause overruled; exception.1 Defendant’s counsel: Q. Do you think that with this strong conviction or strong opinion you have of the guilt or innocence of this defendant, you could go into the jury box and hear the evidence as detailed before you and render a true verdict according to that evidence, without being influenced by any opinion you have now ? A. If the evidence was strong enough I could. Q. The question is, would you be influenced in any way if sworn as a juror by any opinion you now have, would that opinion have any effect on your verdict ? A. I would give a verdict according to the evidence if sworn as juror. Q. Without being influenced in any way by the opinion you now have? A. Yes, sir. Q. Will you now tell me what you mean by a fixed opinion ? A. Well, I would say if a man had a fixed opinion it could not be changed. If it was fixed, it could not be changed, I suppose. Q. That is not your kind of an opinion? A. No, sir; I said it was not fixed that strong. Defendant challenges peremptorily. P. C. Reeves, sworn on his voir dire, said: To defendant’s counsel: That he heard of the murder through the neighbors, then he heard of it through the papers; he had read pretty nearly everything he saw published in the papers about the coroner’s inquest, and the trial of George Clark, but was not present at the trial; he had formed an opinion with regard to the guilt or innocence of the defendant, after he had heard and read what he did; it was not a fixed opinion at all, and could be changed by evidence that he would want to believe. Q. You think you could be sworn as a juror in the case and hear the testimony, as it would be revealed before you, without being influenced in any way in making up your verdict by this opinion you have ? A. I would not allow the opinion to control me at all; I would be controlled by the evidence. Q. You say you read the evidence taken at the trial of George Clark? A. I think I read everything that was printed ; everything I saw, at least. I read the papers every week; I expect I saw pretty much everything that was printed in them. Defendant challenges for cause, for the reason that he has read the evidence on the trial of George Clark. By the commonwealth: Q. I understand you to say, if sworn as a juror in this case, that you could give this defendant a fair and impartial trial on the evidence you would hear here in the case, without being influenced by this opinion 3>-ou have ? A. I said I would not allow the opinion I have to control me; I would be controlled by the evidence. By the court: Challenge for cause overruled; exception.3 By Mr. Sayers: I wish to add that the challenge for cause is made in this case solely on the ground that the witness testified that he read the evidence as published in the George Clark case, at April Term, 1888; the defendant here being a co-defendant with George Clark, and the nature of the testimony being substantially the same as in that. Defendant challenges peremptorily. A jury having been impaneled and sworn, Charles Howard, called for the commonwealth, testified that in November, 1887, he went into Dr. Neff’s store in Masontown; the defendant and others were there talking about the murder when he went in, so that he did not hear the whole of the conversation; the defendant made a declaration, the whole of which he heard. Objected to, that the witness did not hear the whole of the conversation. By the court: The objection is that the witness is not able to state the whole of the conversation. The objection is well founded, unless the conversation he refers to is the whole conversation. If it is the whole of the conversation, then that is the end of it. By the district attorney: Commonwealth would not compel the defendant here to state the whole of the conversation. Defendant excepts to the remark of the counsel for the commonwealth. By the court: Exception sealed.5 The witness, subsequently recalled, testified that after he went into Dr. Neff’s store, they began talking about the shot, if it would kill McCausland instantly; a clerk in the store said the shot would kill him instantly. Q. What did this defendant say ? A. He said it would not; he was hit with a stone. Defendant objects to the witness stating what the defendant’s opinion was. By the court: Objection overruled; exception.3 Q. Give the words as near as you can, what Taylor said there in your presence ? A. He said he knew the shot would not have killed him instantly, for he was hit in the head with a stone. ‘ B. L. Debolt, called for the commonwealth, testified that in December, 1887, he went into Sterling’s store, and when he went in several persons, including the defendant, were present and there was talk going on about the murder. Objected to, unless the witness can say he heard the whole of the conversation. By the court: I do not see any need of any further examination of this witness, unless he can say he heard the whole of the conversation. The witness, afterwards recalled, testified that some of those present were telling the defendant the probabilities were he would be arrested. Q. Then, what did he say in reply to that? A. He just said he could clear ■ George Clark. He said he wished they would arrest him and take him up there, and he would clear George Clark. Q. Why did he say he was clear? A. Well, he said he knew the whereabouts of George Clark during that forenoon. Q. Where did he say he was ? A. He said he was at George Clark’s, I believe, that forenoon— Defendant objects to the testimony as incompetent and irrelevant ; it is not competent for the witness to state any more than the mere admission of the witness [defendant?] himself. By the court: Objection overruled; exception.4 A. Then he said George Clark came to his house about 11 o’clock, I think, and stayed there till sundown. C. L. Cowell, called for the commonwealth, the following offer was made: The commonwealth having proven that George Clark and Zach. Taylor were seen upon the morning of the murder going from the direction of the scene of the murder at a rapid gait, and but a short distance from the scene of the murder; and, having further shown by Thomas Mountjoy that the defendant admitted to him that he had been in the hollow where the murder was committed when James McAllister passed, the commonwealth proposes to prove by this witness that on or about September 12,1885, he saw the revolver, which was found upon the scene of the murder, in the hands and possession of George Clark, who is jointly indicted with Zach. Taylor, the defendant. This is offered for the purpose of showing that the revolver found upon the scene of the murder belonged to George Clark. Defendant objects to tbe testimony as being incompetent and irrelevant; particularly so, as there has been no evidence yet introduced showing the defendant and George Clark together, before the commission of the crime, at the scene of the crime, or within an half-hour after the crime was committed. By the court: Objection overruled; exception.6 The testimony of the witness, admitted under the foregoing offer, did not appear in the paper-books. At the close of the testimony, the jury were instructed by Inghram, P. J., and after deliberation returned a verdict that the defendant was guilty of murder in the first degree. A rule for a new trial haviug been discharged, judgment was passed on May 1, 1889, when the defendant took this appeal, assigning for error: 1, 2. The overruling of defendant’s challenges.1 8 3-6. The admission of the commonwealth’s offers.3 to 6 Upon the first and second specifications of error, counsel cited: Allison v. Commonwealth, 99 Pa. 32; Clark v. Commonwealth, 123 Pa. 574; Staup v. Commonwealth, 74 Pa. 468; Curley v. Commonwealth, 84 Pa. 156; Weston v. CommonWealth, 111 Pa. 251. Upon the third and fourth specifications,no authorities were cited. Upon the fifth specification: Section 10, act of May 23,1887, P. L. 161. Upon the sixth specification : 1 Greenl. Ev., § 111. Upon the first and second specifications, counsel cited: Clark v. Commonwealth, 123 Pa. 558; Staup v. Commonwealth, 74 Pa. 458; Allison v. Commonwealth, 99 Pa. 23; Ortwein v. Commonwealth, 76 Pa. 414; O’Mara v. Commonwealth, 75 Pa. 424; Weston v. Commonwealth, 111 Pa. 251; Commonwealth v. Winnemore, 2 Brewst. 380. Upon the third and fourth specifications: Wharton on Ev., § 1108; Commonwealth v. Pitsinger, 110 Mass. 101. Upon the sixth specification: Roscoe, Crim. Ev., 7th ed., 414; 2 Bish. Crim. L., 190, n. 7; 3 Greenl. Ev., §§ 93, 108.
129 Pa. 542Headley v. Renner (1889)
No. 196 October Term 1889, Sup. Ct.; court below, No. 140 October Term 1886, C. P. On August 27,1886, David Headley and Lucretia Headley, his wife, in right of said wife, brought debt against Barnet Renner, to enforce payment of a legacy alleged to be due- personally from the defendant to his sister Lucretia, under the will of their father, Jacob Renner, deceased. Issue.
129 Pa. 547Kramer v. Wellendorf (1889)
No. 203 October Term 1889, Sup. Ct.; court below, No. 159 February Term 1884, C. P. On January 25,1884, Sarah Kramer and George Kramer, her husband, in right of said Sarah Kramer, brought trover against B. E. Wellendorf and H. Lewis, to recover a boiler, smokestack, engine, etc., of the alleged value of $800. Issue.
129 Pa. 551Barker v. Hartman Steel Co. (1889)
129 Pa. 554Barnes v. Hays (1889)
APPEAL BY E. W. ECHOLS EROM THE COURT OE COMMON PLEAS OE VENANGO COUNTY. No. 68 October Term 1889, Sup. Ct.; court below, No. 41 April Term 1886, C. P.. On March 16,1886, upon a judgment in favor of P. P. Barnes against R. W. Hays, entered to No. 125 January Term 1886, of the court below, an execution attachment was issued against the defendant Hays, with S. A. McKinley and Mary E. Reagle, administrators of S. W. Reagle, deceased, as garnishees. On September 14, 1886, the garnishees answered, and on October 12th, leave of court was given them to pay into court the “ amount of the legacy, 1140.88, accruing to Sarah Golda Hays, deceased, minor child of Hannah Hays, deceased, being the amount claimed under the attachment.” On October 14, 1886, on motion of plaintiff’s attorney, a rule was granted to show cause why plaintiff should not “take out of court so much of the money paid in as will satisfy the judgment of the plaintiff against the defendant.” On November 24th, upon petition filed by E. W. Echols, administrator of Sarah Golda Hays, deceased, a rule was granted to show cause why the money paid into court by the garnishees should not be taken out by the said Echols, administrator, etc. Depositions were taken and filed, and after hearing, on January 4, 1887, the rule taken by the plaintiff October 14,1886, was discharged, “but not to prejudice plaintiff in his claim on the fund; ” and the same day the rule taken by Echols, administrator, was made absolute, “ the administrator taking the fund subject to the rights of the attaching creditor, and any other attachments which have a legal claim thereon.” 1 On November 14, 188T, on motion of plaintiff’s attorney, the name of- E. W. Echols, administrator of the estate of Sarah G-olda Hays, deceased, was added “ as a defendant in the above case;”8 and on March 14, 1888, “proof of notice to E. W. Echols of his being made a defendant filed.” On November 30, 1888, on motion by attorney for E. W. Echols, “to have attachment in above case dissolved,” rule granted. On the same day, on motion of plaintiff, rule granted “ on E. W. Echols to appear and pay over the money received by him.” On December 3, 1888, on motion of plaintiff’s attorney, “judgment against E. W. Echols, administrator of Sarah Golda Hays, deceased, by default, for want of an affidavit of defence; ” 4 liquidated in the sum of $142.85. On the same day, motions by attorney for E. W. Echols to strike off the judgment'entered against him, for reasons appearing on the record, and to have the judgment opened and let him into a defence, refused.5 On December 15, 1888, rule granted on November 30th, to the plaintiff, discharged, but ordered that a citation issue from the Orphans’ Court on the administrator to file an account. .On the same day, the rule granted E. W. Echols, administrator, on November 30, 1888, to show cause why the attachment should not be dissolved, discharged, for the reason that no account is filed in the Orphans’ Court.3 On February 6, 1889, rule granted on E. W. Echols, administrator, to pay within ten days to P. P. Barnes, plaintiff in the attachment, $89.91 of the funds received by him as administrator.6 A bill of exceptions having been sealed, E. W. Echols, administrator, etc.,, took this appeal, assigning for error : 1-6. The orders of the court, severally.1 to 6 1.- As no interest in the fund in the hands of the administrators of S. W. Reagle, deceased, accrued to the defendant, R. W. Hays, by reason of the death of the decedent, the funds in their hands accruing to Sarah Golda Hays in her lifetime, attachment execution will not he: Section 11, act of April 10, 1849, P. L. 620; Smith’s App., 108 Pa. 508; Roumfort v. McLarney, 82 Pa. 193 ; Eisenbise v. Eisenbise, 4 W. 134; Holcomb v. Roberts, 57 Pa. 493. 2. The court could not inject the administrator and fund backward into the teeth of the dead writ; it could acquire jurisdiction only by prior rule or scire facias: Townsend’s Admr.’s App., 117 Pa. 325; Tyrrill v. Lamb, 96 Pa. 464. The attachment could not be amended so as to relate back to the beginning of the action, or change the cause of action: Smith’s App., 108 Pa. 508; Tyrrill v. Lamb, 96 Pa. 464; Leeds v. Lockwood, 84 Pa. 70; Duffey y. Houtz, 105 Pa. 96. 3. The entry of the judgment was error. It has been uniformly held that persons defending in a representative capacity are not required to file an affidavit of defence: Seymour v. Hubert, 83 Pa. 346; besides, the proceedings were in rem : Grant v. Hickcox, 64 Pa. 334. Answers to interrogatories are the exclusive foundation for judgment: Lancaster Co. Bank v. Gross, 50 Pa. 224.
129 Pa. 558Bonnert v. Pennsylvania Ins. (1889)
1. A condition of a policy of Are insurance providing that no suit thereon shall be sustained unless brought within six months after the loss shall accrue, may be waived, not only by express words, but by acts and conduct of the company and its officers, which throw the insured off his guard and lull him into security. 2. The testimony showing that proofs of loss were furnished within the time prescribed, that all the plaintiff’s books and papers were promptly presented on the defendant’s demand, that adjustment was delayed by the company upon various pretexts, and that after the limitation expired the company offered to go on and adjust the loss upon receipt of other books and papers demanded, the question whether or not the limitation as to time was waived by the company must be submitted to the jury.
129 Pa. 564Eisiminger v. Eisiminger (1889)
129 Pa. 567Incorporation of Jeannette Borough (1889)
No. 139 October Term 1889, Sup. Ct.; court below, No. 71 February Term 1889, Q. S. On February 7, 1889, the petition of sundry persons was presented for the incorporation of the borough'of Jeannette. On February 9, 1889, the grand jury reported that the conditions of the act of assembly had been complied with, and that it was expedient to grant the prayer of the petitioners. No plot or draft was attached to the application.
129 Pa. 570Elliott v. Oil City (1889)
■ No. 161 October Term 1889, Sup. Ct.; court below, No. 18 January Term 1885, C. P. On December 16,1884, Isabella Elliott brought case against the city of Oil City to recover damages for injuries alleged to have been done to her property by the negligent acts of the defendant. Issue.
129 Pa. 577Kearney v. First N. Bank (1889)
No. 187 October Term 1889, Sup. Ct.; court below, No. 226 April Term 1888, C. P. On March 6,1888, A. B. Kearney brought assumpsit against the First National Bank of Clarion, to recover the penalty imposed by the act of Congress of June 8, 1864, Rev. St. U. S., § 5198, p. 1012. Issue.
129 Pa. 583Parker v. Citizens Ins. (1889)
On tbe trial of an action against an insurance company, the fact that a particular person was the agent of the company in making a settlement sought to be enforced, may be proved by the affidavit of the person, made as the general agent of the company, to obtain a continuance of the cause when called for trial previously.
129 Pa. 588Fearl v. Hanna (1889)
No. 7 October Term 1889, Sup. Ct.; court below, No. 68 December Term 1887, C. P. On September 16, 1887, Mrs. C. Fearl, trading as the Johns-town Milling Company, brought assumpsit against C. T. Hanna, to recover back the price of pertain machinery which had been furnished by the defendant, paid for, and alleged to be defective.
129 Pa. 592Bestwick v. Ormsby Coal Co. (1889)
No. 16 October Term 1889, Sup. Ct.; court below, No. 67 March Term 1888, C. P. On February 24, 1888, Thomas Bestwick, trustee, brought assumpsit against the Ormsby Coal Co., Limited, for royalties alleged to be due under a mining grant, for the year 1887. Issue. On May 14, 1888, it was agreed that the cause be submittedto the decision of McMichael, J., 17th district, without a jury.
129 Pa. 605Freeport Water Works Co. v. Prager (1889)
APPEALS BY PLAINTIFF AND DEFENDANT FROM THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, IN EQUITY. Nos. 19, 53 October Term 1889, Sup. Ct.; court below, No. 407 June Term 1885, C. P. in Equity. On May 20,1885, the Freeport Water Works Company, a corporation organized under the act of April 29, 1874, P. L. 93, for the supply of water to the public within the borough of Freeport, filed a bill in equity against John Prager, charging that the defendant, without authority of law and in violation of the plaintiffs’ corporate rights, was supplying the public with water in said borough by means of mains and supply pipes laid in the streets thereof; praying for an injunction and for general relief. The defendant having answered the bill and issue having been joined, Mr. Boss Beynolds, Jr., was appointed examiner and master. On February 9, 1887, the master reported, finding the following facts: 1. The Freeport Water Works Company was organized on December 29, 1882. A charter was applied for under the act of April 29,1874, P. L. 93, and on January 12,1883, a charter was granted said company, giving it the privilege of supplying the public within the borough of Freeport with water. Immediately thereafter a meeting of the company was called, committees appointed, and negotiations had to secure right of way and for the furnishing of necessary materials in the erection of the works. The digging of trenches, etc., was commenced on April 25th following, and on August 25, 1883, water was supplied to customers, and the company has been supplying the public, or such of them as so desire, ever since that time. The present population of Freeport does not greatly exceed 1,600. The company has about 140 customers, which would be about one half the citizens, and they require for their use some 800 barrels of water per diem. The supply of water for the company is drawn from the Allegheny river, by four- or five-inch pipes, to a height of two hundred and twenty-five feet, to tanks having a capacity of 2500 barrels. The pumping capacity of the company’s works is 250,000 gallons per diem. This is four times the present demand, so that the pumps are not kept constantly in operation. The water is distributed from the tanks by four miles of two- to four-inch mains, laid through the streets of the borough, half of which mains were laid during the summer of 1883, including those on High and Fifth streets, and the remaining portion before this bill was filed. Mains are not laid through all the streets of said borough, but are in reach of every street when demand requires it. The company has expended between ten and eleven thousand dollars in the erection of its works, etc., and has ample capacity for furnishing the entire public in the borough of Freeport with water facilities. 2. In September, 1882, John Prager, the defendant, purchased from a man named John Butler, some 1,300 feet of three fourth-inch pipe, which Butler had laid from a spring on the Galbraith farm, near Freeport, for the purpose of supplying water to drill a gas well, the pipe extending from the spring over the hill to the gas well, in the form of a siphon. This same line Prager extended from the gas well to his own house on Fifth street, in the borough of Freeport, the line from the spring to the house being about 3,500 feet in length. He commenced digging a ditch for the pipe in the latter part of September, and had the pipe laid complete to his house in October, 1882, where the water was received in a tank of 1,600 gallons capacity, located on his own lot. It was Prager’s original intention in laying this line simply to supply his own house, but water in Freeport at that time being scarce, and wells and water carts being the sole source of supply, a number of his neighbors applied to him, when he had finished his line in the fall of 1882, and at various times thereafter, for leave to connect with his main and use the water therefrom. This Prager agreed to, the consumers to furnish at their own expense all pipe, etc., required to make the connections, and to pay Prager from eight to ten dollars per annum for the use of the water. A majority of the persons connecting with Prager’s line were residents of High street. A few, however, who resided on Fifth street, were connected with it by means of a pipe running across a lot from High street; but the Freeport Water Works Company has mains by which all these parties who are customers of the Prager line could be supplied. In November, 1882, this three fourth-inch pipe was replaced by a two-inch pipe about half way from Prager’s house to the spring, the three fourth-inch pipe being too small to accommodate those persons using water from the line. This two-inch pipe was buried, the former smaller pipe never having been buried in the streets. That portion of the three fourth-inch pipe from the spring to the gas well, which was brought over the hill in the form of a siphon at the time Prager purchased it, was re-located in the spring of 1883, by bringing it around the base of the hill through Prager’s own property, using a two-inch pipe instead of the three fourth-inch formerly used; so that Prager now has a two-inch main the whole length of his line. Prager laid his line as an individual, and at his own expense, costing him about $1,000, of which sum about $100 were expended subsequent to the time when the Freeport Water Works Company had obtained its charter. His entire main line, including the extension of it on High street, was laid prior to the date of the plaintiff’s incorporation, but the re-location and re-laying of the portion between the gas well and the spring was subsequent thereto. The defendant now threatens to still further extend his line of pipe, and supply water to persons in the borough of Freeport other than those already taking it from him. —It was averred by the defendant’s answer that the mains and pipes laid by him in the streets of the borough of Freeport, were so laid with the consent of the borough council, and evidence was presented in support of this averment. The master’s report, however, contained no finding upon the subject. Upon the facts found by him, the master reported his conclusions of law, in substance as follows: ■ 1. That clause 3 of § 34, act of April 29,1874, P. L. 94, conferring upon water companies exclusive privileges in the respective districts covered by their charters, is not in conflict with the constitution. 2. That the privilege granted by said clause is exclusive as against individuals and unincorporated associations, as well as other private corporations. On this point, the master distinguished Lehigh Water Co.’s App., 102 Pa. 515, upon the ground that the contest in that ease was between an incorporated water company and a municipal corporation. 3. That the acts done by the defendant are an infringement of the corporate rights and franchises of the plaintiff, which since its incorporation had at all times, and now has, the exclusive right and privilege of supplying water to the public within the borough of Freeport, as against all persons natural or artificial. The master accordingly recommended that the defendant be perpetually enjoined from supplying water to the public within said borough, and especially to certain persons named who were his customers at the date of the filing of the bill, or to the properties then occupied by them, and also from further extending his line of pipe or pipes in said borough; and that the defendant be ordered to pay the costs. Exceptions to the report of the master were filed by both parties, and being overruled by the master were renewed in' court. These exceptions, after argument, were disposed of by the court, Mehard, P. J., 35th district, specially presiding, in an opinion which after briefly stating the facts proceeded: The plaintiff by this action seeks to have the defendant restrained, first, from extending his line of pipe; second, from supplying any persons with water therefrom, whether they are about to connect or have already connected with the pipe as now laid. The plaintiff bases this claim of right on the third clause of the thirty-fourth section of the act of April 29, 1874, P. L. 93, which is in the following words, viz.:..... The chief questions for consideration here are: (1) Whether the franchises and privileges of the plaintiff corporation are exclusive, within the borough of Freeport? (2) What the franchises and privileges consist of ? (3) Whether the defendant is infringing upon them in the matter complained of in the bill and shown by the proofs.. 1. The first question must be answered in the affirmative unless the clause of the act of 1874, above quoted, be unconstitutional. It is contended on behalf of defendant that it is inconsistent with § 17, article I. of the constitution of 1874, and with clause 26, § 7 of article III. The latter is an inhibition of local or special laws “ granting to any corporation, association or individual any special or exclusive privilege or immunity,” etc. But as the act under which the plaintiff was incorporated is a general law, it would not conflict with this part of the constitution. Section 17, article I. is as follows, viz.: “ No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.” The plaintiff’s charter was granted and accepted subject to the tenth section of article XYI. of the constitution. It may therefore be altered, revoked or annulled by the general assembly. The act of 1874 does not pretend to provide an irrevocable franchise, but one which shall be exclusive while it continues. This does not show a clear, palpable, plain violation of the constitution. It therefore follows that the act of assembly and the provision of the constitution are compatible: Speer v. School Directors, 50 Pa. 150. 2. What are the franchises and privileges to which it thus appears the plaintiff company is exclusively entitled, within the district or locality covered by its charter ? The chief franchise is the right to act in a corporate capacity in effecting the object of the corporation. This is a special privilege which may not be assumed without legislative authority. The other franchises and privileges embraced in plaintiff’s charter, are set forth in the second clause of the thirty-fourth section of the act of 1874, supra, which is as follows, viz.: “ Where such company shall be incorporated for the supply of water, they shall have power to provide, erect and maintain all works and machinery necessary or proper for raising and introducing into the town, borough, city or district where they may be located, a sufficient supply of pure water, and for that purpose may provide, erect and maintain all proper buildings, cisterns, reservoirs, pipes and conduits, for the reception and conveyance of water; and they are authorized and empowered by themselves, their agents, engineers and workmen, and with their tools, carts, wagons, beasts of draught or burden, to enter upon such lands and inclosures, streets, lanes and alleys, roads, highways and bridges, as may be necessary to occupy, or to obtain material for the construction of said works, and to occupy, ditch and lay pipes through the same, and the same from time to time to repair, subject,” etc. It will be observed that the first part of this clause defines the scope of the powers of the cor- • poration, while the second part confers franchises and privileges for the purpose of enabling the corporation to exercise those powers. It should also be borne in mind that the powers of a corporation are such only as are expressly granted, and may therefore be such as natural persons have of common right; but a franchise or privilege, distinctively, is, according to Blackstone, Book 2, page 37, “ a branch of the royal prerogative subsisting in the hands of the subject.” In other words, it is something created by sovereign grant which would not otherwise exist in the hands of the subject. Thus, natural persons may of common right provide, erect and maintain all works, machinery, buildings, cisterns, reservoirs, pipes and conduits necessary or proper for raising and introducing into a town, etc., a sufficient supply of water; but only through a grant of sovereign power could they “ enter upon such lands and inclosures, streets, lanes and alleys, roads, highways and bridges, as may be necessary to occupy, or to obtain materials for said works, and to occupy, ditch and lay pipe through the same, and the same to repair.” Inasmuch as charters must be strictly construed: Commonwealth v. Erie etc. R. Co., 27 Pa. 339, the words “ franchises and privileges ” as used in the third clause of § 34 of this act are to be taken in a distinctive sense. They are, then, the right to act in a corporate capacity and the rights embraced in the part of the second clause just quoted. 8. Is the defendant violating the plaintiff’s rights, or will it be such violation if defendant still further extends his line of pipe ? It is contended on behalf of defendant that the franchises and privileges made exclusive by the clause of the act of 1874, relied on by plaintiff, are so only as against other incorporated companies, and not as against natural persons. In support of this position the case of the Lehigh Water Co.’s App., 102 Pa. 515, is cited..... If I rightly understand this decision, it is to the effect that, inasmuch as the power to provide'a supply of water for the use of its inhabitants is incident to a borough by virtue of its incorporation : Act of April 3,1851, P. L. 320, the thirty-fourth section of the act of April 29, 1874, would not be so construed as to abrogate this power; but I do not understand it to be said or implied in that decision that a private person or unincorporated company, could interfere with the franchises or privileges of a corporation created under that part of the act of 1874. On the contrary, if the meaning of the terms franchises and privileges, has been correctly ascertained in this opinion, they are such as may be exercised only through special grant from the sovereign power. Moreover, if the sovereign were under obligation, after making such grant to one for a specific purpose, not to make such grant to another for the same purpose, this would stand in the way of a borough conferring a right which would fall within the limits of the franchises and privileges already exclusively granted. Thus, as the plaintiff company, by virtue of its charter, acquired the exclusive right to enter upon the streets and alleys of Freeport, for the purpose of laying pipes, etc., to supply water to its inhabitants, the borough authorities could not thereafter lawfully permit the defendant to lay pipes in the public streets and alleys for the same purpose. These are public highways; and, although under the control of the borough, they are subject to the paramount authority of the commonwealth': Southwark R. Co. v. Philadelphia, 47 Pa. 314; Commonwealth v. Central Passenger Ry. Co., 53 Pa. 517. On behalf of plaintiff it is contended that the defendant is infringing upon plaintiff’s right by permitting his neighbors to connect with his water pipe, for the reason that the plaintiff has the exclusive franchise of supplying water to the public within the borough of Freeport. This I think, is confusing the franchise with the purpose for which it was granted. It is true its franchises and privileges were granted to this water company, in order to enable it to supply water to the public .within the borough of Freeport; but an exclusive grant of facilities which are ordinarily necessary to enable a company to supply the public with water, is not synonymous with an exclusive right to furnish such supply. Hence the defendant has a right to furnish water to as many of the citizens of Free-port as he sees fit, and the plaintiff has no ground to complain so long as defendant does not violate plaintiff’s franchises and privileges as above ascertained. [Measuring the facts by these conclusions, it appears: (1) That inasmuch as defendant’s water pipe, so far as it is laid in the streets of Freeport, was laid as it now exists, before the plaintiff company was incorporated, it was not laid in violation of any right vested exclusively in the plaintiff. (2) Inasmuch as the plaintiff has not an exclusive right to furnish water to the inhabitants of Freeport, it is not a violation of its franchises or privileges for defendant to permit his neighbors to connect with his water pipe. (3) Inasmuch as the plaintiff has been granted the exclusive right to enter upon the streets and alleys of Freeport for the purpose of occupying, ditching and laying pipes through the same in order to supply water to the inhabitants of said borough, the defendant cannot lawfully extend his water pipes through these public streets or alleys beyond the point of their present terminus.® Therefore, the injunction prayed for is granted, so as to restrain the defendant, his agents, laborers and workmen from extending defendant’s lien of water pipe through the streets or alleys of the borough of Freeport beyond the point of its present terminus.b In other particulars the injunction is refused. In view of the whole case as it has come before the court, it is considered just and equitable that the costs should be borne equally by the parties; for this suit was caused by both parties claiming more than their right, if the foregoing opinion is a correct exposition of the law. It is therefore ordered, adjudged and decreed that the plaintiff and defendant each pay one half of the costs of this suit.0 The learned master discharged his arduous duties faithfully and efficiently. It is ordered that Ms fee be taxed at $100.] 6 Thereupon the plaintiff took the appeal to No. 19, specifying that the court erred: 1. In not confirming the report of the master and entering the decree recommended by him. 6. In the portion of the opinion and decree in [ ] 6 The defendant took the appeal to No. 53, assigning for error : 1. The conclusion of law (3) set out in the opinion of the court.® 2. The order granting an injunction against the defendant.1* 3. The order as to the payment of the costs.® 1. Is the plaintiff’s privilege of supplying water to the public in Freeport an exclusive one? What are the franchises and privileges which, under the act of April 29, 1874, P. L. 93, are to be exclusive? The court below took the contracted position that they were only the privilege of being a corporation and the right of eminent domain, a view which gives two incidental rights but ignores the very purpose for which the corporation is formed under the act, viz., the supply of water to the public. To say that the furnishing of this supply, which is the raison d’etre of the corporation, is not one of its privileges and franchises, strikes one as contradictory. 2. The act gives an exclusive privilege in but few cases. The building of bridges, and water and gas works, alone, things which require large outlays, have an exclusive privilege for a reasonable time, and only until from their dividends a fair return is had. The object of the act was to foster industries of this kind in smaller towns, pursuing, the policy indicated by this court in Chincleclamouche Co. v. Commonwealth, 100 Pa. 444. Its wisdom is shown by the fact that to-day water and gas works have sprung up in every village, relying upon this exclusive privilege, which, however, is carefully guarded. If the position of the lower court is right, a water company would far better be unincorporated, for its advantages as a corporation are virtually none, while its disadvantages are many. 3. The same exclusive privileges of corporate existence and eminent domain are given to bridge companies by the act of 1874. Will it be pretended that other bridges could be built near them and take tolls ? Yet that is the effect of the learned court’s opinion. It must be presumed that some object was intended to be brought about by a statute, some change or modification of existing laws. But the act of 1874 virtually makes no change in the legislation respecting water companies, save by granting the exclusive privilege, which did not exist before. Under the acts of March 11, 1857, P. L. 77, and April 24, 1869; P. L. 93, they had the right of eminent domain and all the other powers contained in the act of 1874, except the privilege of excluding others, and were subject to practically the same regulations as now. 4. Prior to the new constitution, the mischief which required a remedy in connection with such corporations, was the unlimited grant of exclusive privileges by the legislature. The remedy was the granting of such privileges with proper limitations and safeguards. It was for this purpose that the act of 1874 was passed, and the whole act should be construed so as fairly to carry out the object in view: Wilkland v. Leland, 2 Pet. 661; The Emily and Caroline, 9 Wheat. 388. In § 25 of this act it is provided that charters shall have the same force and effect, and the franchises granted shall be construed according to the same rules, as if the corporation were created by a special act of the legislature. If the franchises and privileges given to the plaintiff had been conferred by a special act prior to 1874, no one would doubt that its right to supply the public is exclusive. 5. This court has already decided our claim to an exclusive privilege of supplying water, in Scranton etc. Co.’s App., 122 Pa. 174, for unquestionably the clause of the act considered in that case includes water companies. The evidence shows that after the plaintiff’s incorporation Prager’s line was changed in its route, and was altered from a three fourth-inch siphon line to a two-inch gravity line. He does not have his works in the status they were in at the time of our incorporation. If he can thus enlarge their capacity, he can enlarge to any size. To enjoin him from furnishing water will not deprive him of any property; it will leave him with his pipe as it was, and simply prevent him from interfering with the franchise granted to us. The state had a right to grant this franchise and deprive him of the right to infringe it: Washington etc. Turnpike Co. v. Maryland, 3 Wall. 213. Moreover, the court should not have divided the costs. 1. Clause 3, § 34, act of April 29, 1874, P. L. 94, is unconstitutional as conflicting with § 7, article III. of the constitution, which prohibits any local or special law granting any special or exclusive privilege or immunity. This question was raised, but not decided, in Emerson v. Commonwealth, 108 Pa. 111. The clause referred to gives this water company the exclusive right to exercise the franchises and privileges contained in its charter, arid forbids the granting of a similar charter covering the same territory to another company, until the happening of certain contingencies entirely within the control of the grantee. These exclusive franchises, therefore, may be deemed perpetual. This enactment is special legislation in its most odious form. It creates a certain class of corporations, and then grants them rights and privileges to the exclusion of all others and to the detriment of the public, as well as of the individual citizen. It is as much special legislation as if passed for the benefit of the plaintiff alone. 2. The exclusive privileges mentioned in the act are exclusive only as against other and similar corporations, and not as against individuals: Lehigh Water Co.’s App., 102 Pa. 527. The court below understands the language of the opinion in the case cited to be restricted to municipal corporations. But the same reasons given by this court to show that the franchises are not exclusive against municipal corporations, apply with equal force in favor of individuals. The defendant, having laid his pipes with .the permission of the proper borough authorities, and invested his money in a plant for the supply of water, and being in receipt of a revenue therefrom, had a property in his plant and business, which could not be taken from him without just compensation: Constitution, article L, § 1 ; article XVI., § 8. The act of 1874 must be so construed as not to interfere with constitutional rights; if it cannot be so construed, it must fall, so far as it conflicts therewith. The defendant was engaged in a lawful and legitimate business, which every citizen has the right to pursue and cannot be deprived of by any legislative enactment. 3. Grants of special franchises and privileges, in derogation of common rights, are to be strictly construed: 1 Morawetz on Corp., § 323 ; Commonwealth v. Erie etc. R. Co., 27 Pa. 351; Scranton etc. Co.’s App., 122 Pa. 175. The act of 1874 was never intended to prohibit a man from selling water out of a cart. Yet such is the logical conclusion, on the construction, contended for by the plaintiff; for it is immaterial whether the water is brought to a consumer in a water cart, or through pipes buried in the ground. The court below inquired what the plaintiff’s franchises and privileges consisted of. In the bill and the master’s report no other privilege or franchise than that of supplying water is alleged or found. The charter was not in evidence and it was error for the court to assume that it contained all the franchises mentioned in the act of 1874: Emerson v. Commonwealth, 108 Pa. 111. The franchise contended for by the plaintiff as exclusive, was the right to supply water. Having found that the plaintiff bad not such exclusive right, it should have dismissed the bill with costs to the defendant.
129 Pa. 619Beale v. Jennings (1889)
APPEAL BY DEFENDANT FBOM THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY. No. 31 October Term 1889, Sup. Ot.; court below, No. 108 March Term 1888, C. P. On December 31, 1887, Joseph G. Beale brought assumpsit against B. F. Jennings, his statement of claim being as follows : “ This suit is brought to recover from the defendant, B. F. Jennings, the sum of $2,719.09, with interest from October 30, 1886. The claim arises as follows: The firm of Jennings, Beale & Co. was composed of the plaintiff and defendant, and on October 30, 1886, was indebted to plaintiff in the sum of $2,719.09, a statement of the account showing the nature and character of said debt being hereto annexed and made part thereof. On February 21, 1887, the said firm of Jennings, Beale & Co., still owing said sum to plaintiff, and it being then one of the liabilities of said firm, the defendant, by an agreement made and entered into with plaintiff, a copy of which is hereto annexed and made part hereof, agreed and undertook for sundry good considerations to pay the liabilities of said firm, which included the present claim. This however, he has failed to do, though requested and required so to do, and this suit is therefore- brought to enforce his said undertaking and agreement, and collect from him the amount of said account, viz.: $2,719.09, with interest from October 30,1886.” At the trial on September 19, 1888, upon the general issue, it was made to appear that on January 29, 1886, the plaintiff and defendant entered into a copartnership, under the firm name of Jennings, Beale & Co., each partner agreeing to contribute $50,000 to the firm assets. The defendant paid his' contribution in cash. The plaintiff paid in cash $10,000, and conveyed to the defendant, in trust for the partnership, certain real estate, being the plant and fixtures, etc., of the West Penn. Steel Works, together with three gas wells, one of which was in Allegheny Tp., Westmoreland county. The deed was in the ordinary form and contained a covenant of general warranty of “all and singular the hereditaments and premises hereinabove described.” On October 27, 1886, all the assets and property of the co partnership were turned over to a limited partnership then organized by the defendant and others, under the firm name of Jennings, Beale & Co., Limited, and on February 27, 1887, the plaintiff by a sealed instrument sold and transferred to tbe defendant, inter alia, all his stock and interest in the firm of Jennings, Beale & Co., Limited, in consideration of certain covenants on the part of the defendant, inter alia, “ That the said B. F. Jennings will and he hereby does assume and agree to pay all the liabilities of the firm of Jennings, Beale & Co., and he hereby agrees to protect, indemnify and save harmless the said Joseph G. Beale of and from any loss, expense or damage by reason thereof.” The account of the indebtedness of Jennings, Beale & Co., to the plaintiff, as given in the statement of claim, was admitted to be correct. The matters set up in the defence to the plaintiff’s claim sufficiently appear in the charge to the jury, Neale, P. J., which in part was as follows: Mr. Jennings, in his own behalf, has come upon the stand, and by his evidence has attempted to show a different set of facts than those which would appear at first, from the evidence of the account, namely: that he entered into this contract with Mr. Beale upon certain statements that were made to him by Mr. Beale, and especially the representations with regard to some gas wells. They had, it seems, three gas wells, with their connections to the works. These wells were for the purpose of supplying the works with fuel, and the connections were made by a line of pipe extending from the works to the different wells. It is alleged, upon the part of Mr. Jennings, that those three wells were lumped.at a value of $10,000, and put in as a part of the capital of Mr. Beale and represented, in the capital that he supplied to the firm, the sum of $10,000; that at a time prior to the making of the contract which they entered into, Mr. Beale had agreed with Mr. Jennings that he would clean out and put in order and condition these different wells at his own expense, and that these wells furnished him with an inducement to enter into the arrangement with Mr. Beale. The defendant has shown with respect to one of these gas wells, the one over in Westmoreland county, that it was clogged with salt and partially filled up with water, I believe is the language used, and that Mr. Jennings appeared to have some knowledge of that at the time; that that was represented to him at that time. It was that kind of property that he would have a right to examine himself. We are free to say to you, he made the bargain for such property with his eyes open. It would be very proper, we do not say that it was a legal obligation in this kind of a case for him to do so, but as a prudent, careful man, he had a right to go and see the condition of those wells before he entered finally into this contract. Whether he did so, or not, will be for the jury, under all the evidence in the case, to determine. It seems that, afterwards, this well over in Westmoreland county was not repaired at all by Mr. Beale; that it was not improved nor anything done towards making it better or improving it, at any other time afterwards. [Some time in the year 1887, while it seems that Mr. Beale was still superintendent for the firm which succeeded the original firm, the railroad company gave notice to the firm, or to Mr Beale, whichever it may be, that they required the gas pipe to be taken up from the old canal along which it appears to have been laid. It does not appear in the evidence how much or how far this gas pipe extended along that old canal. The plaintiff says it extended some distance along the canal. The company, or Mr. Beale, had notice from the railroad company, who wanted to take possession of their ground, that this gas pipe must be removed. It appears that it was removed and taken up, but it does not appear to have been re-laid, so far as the evidence goes, and the evidence is really obscure with reference to this gas line. It is obscure as to what was done with regard to the taking up of the gas line, whether it was by the firm, upon notice given to the firm with regard to the firm’s property, because it was the property of the firm, or whether it was upon notice given individually to Mr. Beale; or, whether the act was the act of Mr. Beale, as his own act, independent of any connection with the firm, or how. It is not clearly stated in the evidence, and you will have to draw your own inference, because I think that this has some bearing in this case. If Mr. Beale was then the official representative of the firm and acted for the firm, and took it off for the firm, and used it as firm property, it might be a question, and a very serious one, whether the individual Beale would afterwards be accountable for his action, if he acted in that capacity as superintendent of the works, he being then the superintendent of the worts. If it was Mr. Beale acting for himself and upon his own responsibility, then there might be a question of his liability over to the firm for whatever he did. That is a question that we submit to the jury. It belongs to thig case, we think, and we suggest it as a matter for your consideration.] 1 This well over in Westmoreland county does not appear to have been cleaned out. Was it because it was an exhausted well, no longer productive of gas? Because, if you find that that was so, the law in that respect would not require of Mr. Beale to do a vain thing, to bring gas out of a well when it was not there; nor do we say to you that the law would impose upon Mr. Beale an assurance to Mr. Jennings, the purchaser, that the gas would continue in any of the wells for any unlimited time. We all understand the uncertainty of the production of a gas well. Sometimes they will do well for months, and probably years, and sometimes their supply will almost suddenly cease. That is a part of your consideration, if you come to consider what the value of these gas wells was, and how they afterwards came to be valued at a less price than they were valued at when Mr. Beale made his transfer to Mr. Jennings. That is a matter for your consideration. Then we say to you, with respect to that, if this gas well were an exhausted gas well, and it were unreasonable to spend money upon its improvement or attempted improvement, it would be a vain thing, and Mr. Beale would not be required to do that. That will be for the jury, under all the facts, to determine. Then if the gas well itself were of no value, the gas fine leading to it would be comparatively valueless, so far as a gas line is concerned, and the gas pipe would be of more value to the firm if they took it up. If not, if they appropriated it to themselves as a firm, it would be lying there extending to a non-productive gas well. I speak of that with reference to the warranty that is pressed before this court as of weight in this case as a matter of defence. We say to you, so far as the purposes of this case are concerned, that if Mr. Beale entered into a warranty for the property that he conveyed to Mr. Jennings, he is bound by that warranty. He must make good whatever he does warrant. Now, then, if he warrants that gas well to be a productive gas well, and to continue as such for any definite period, or for a continued period, lie would be bound by that warranty, so far as the purposes of this case are concerned, and we instruct you in that way. But if he did not do so, and if Mr. Jennings took the gas well with the risks, that any one who is likely to invest in that kind of property ordinarily takes, then he takes the chances of the gas well continuing good or ceasing to be productive, and if it ceases to be productive, then that warranty would not amount to very much. As to that, it would become a matter for the jury to determine, under all the evidence in the case, what is the actual loss by reason of any breach of that warranty to Mr. Jennings, if there was any actual loss. That is a question for the consideration of the jury. The actual loss may not be what the value of the well was at the time of the purchase by Mr. Jennings, or it may not be what its increased value may have been afterwards; but it is the actual damage sustained, taldng into consideration the chances of the continuation of the gas and the necessity of keeping up that gas line. Now, was the taking up of that gas line a loss? Was it a breach of the warranty under the circumstances of the case? You will bear in mind that it is not contradicted that the company did make some improvements, and did do some work on the other two wells. Was this to be an exception? Was Mr. Beale to work at this well and the company to work at the other two ? There is no evidence, we do not see that it was required that Mr. Beale should have had notice, if that was a part of his condition and a part of his agreement to improve these gas works. It was his duty to do so if that was his agreement. But you are to determine, from all the evidence in the case, whether or not that was his agreement, and that part of the evidence which shows that the company, did improve the other two wells, has some bearing upon that question which you will have to consider. * * * * * * * * On the part of the defendant we have been requested to charge you: 5. That under all the evidence, an action of assumpsit will not lie, the proper remedy being by bill in equity for the settlement of the partnership accounts, and the verdict should be foi the defendant. Answer: That point is refused.8 The jury returned a verdict for the plaintiff for 13,028.15. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant -toolc this appeal, assigning for error: 1. The portion of the charge embraced in [ ] 1 2. The answer to the defendant’s point.8 Counsel cited, (1) Upon the point that incorrect and misleading expressions are sufficient ground for reversal: Bughman v. Byers, 21 W. N. 494; Penna. Canal Co. v. Harris, 101 Pa. 80; Garrett v. Gonter, 42 Pa. 143; Relf v. Rapp, 3 W. & S. 21; Reber v. Herring, 115 Pa. 599. (2) Upon the point made as to the remedy: 2 Bates on Partnership, §§ 849, 857; Leidy v. Messinger, 71 Pa. 177.
129 Pa. 626Plumcreek Tp. v. Elderton Borough (1889)
No. 69 October Term 1889, Sup. Ct.; court below, No. 71 September Term 1888, Q. S. On September 3, 1883, the poor district of Plumcreek township having obtained an order for the removal of Esther Kimmell, known formerly as Hetty Porter, to the poor district of Elderton borough, the latter district entered an appeal from the order.
129 Pa. 631Estate of Summerville (1889)
129 Pa. 635Lindsey v. Stranahan (1889)
Where no express contract is made for payment to a partner for his personal services in the partnership business, the law will not imply one.
129 Pa. 640Road in Upper Yoder Township (1889)
1. “ The expense of views of private roads, and the expense of any review, or of any view subsequent to a review, of a private or public road, shall be wholly paid by the persons applying for the same: ” Section 54, act of June 13, 1836, P. L. 563. 2. Wherefore, the Court of Quarter Sessions has no power of its own motion to appoint reviewers or re-reviewers of a proposed road, and such appointment may be made only upon a petition presented for that purpose. 3. It is the duty of the court itself to select and appoint competent, disinterested and impartial men to serve as viewers, reviewers, etc., and not to permit them to be suggested by the petitioners or parties interested: per Mr. Justice Sterrett.
129 Pa. 644Commonwealth v. Sweitzer (1889)
APPEALS BY DEPENDANTS FROM THE COURT OP QUARTER SESSIONS OP SOMERSET COUNTY. Nos. 136, 137, 138 October Term 1889, Snp. Gt.; court below, Nos. 9, 10,11 December Term 1888, Q. S. At September Term 1888, of tbe court below, tbe constable of Larimer township made return: “ There are two places in my district where intoxicating liquors are sold, to wit: distilleries of S. P. Sweitzer and Jesse Baughman, who sell by virtue of a license from the county treasurer, as I am informed. If this license is lawful, they sell by authority of law; if not, they violate the law.” A like return was made by a constable as to Abraham Shultz. Upon these returns the defendants were brought into court upon process, and indictments were ordered to be preferred against them for selling liquors'without license. The indictments having been returned true bills, the three cases were tried together on February 27, 1889, upon pleas of not guilty. Witnesses called for the commonwealth testified to purchases of whiskey by the gallon from defendants, at their distilleries and at other places away from them, and others that they had ordered and received liquors by the gallon sent by express G. O. D. The defendants showed that they had been rated and returned by the mercantile appraiser for licenses as distillers, for the year beginning May 1,1888, and that they had paid for and obtained their licenses from the county treasurer. Members of the bar were called, and testified that they were of counsel for the distillers at the preceding May term of court, and that, relying upon the ruling of McIlvaine, P. J., in Brewers and Distillers License, 5 Pa. C. C. R. 136, and of other judges, they had advised the defendants that a distiller had the right to take out a treasurer’s license and sell by the gallon thereunder at the place of manufacture. At the close of the testimony, the court, Baer, P. J., charged the jury: [Each of these defendants had a license from the treasurer, but not from the Court of Quarter Sessions, which authorized them to manufacture and to sell whiskey in original packages; but it did not authorize them to sell by the gallon, either at the place of manufacture, or at any other place. The question which you are to consider and determine is that of selling without a license by the gallon. Selling by the gallon is the question. If you, on the evidence, find that the defendants, or either of them, sold in quantities of a gallon, this would be a selling without license, and would be a violation of the act; and if you are satisfied of such selling, beyond a reasonable doubt, it would be your duty, as to such of them as have sold in quantities of a gallon, to return a verdict of guilty. So far as you are concerned in this case, the statute under which these defendants are prosecuted is as much violated by selling by the gallon at the distillery, as by selling in Somerset, Rock-wood, Garrett, Meyersdale, or any other place. A sale made by either of the defendants, and a delivery of the whiskey at Meyersdale, and receiving the money for it there, is selling at Meyersdale. A sale and delivery C. O. D. at Somerset or Rockwood, or Meyersdale, would be a sale at each of these places. Under the law, even if the defendants had been licensed by this court, they could not have sold both at the distillery and at some other place also, without violating the law.] 8 ******** We are asked by both sides to charge you on certain points. We take first the commonwealth’s points. 1. That since the act of May 24, 1887, the Court of Quarter Sessions alone has power- to grant license to a distiller to sell his products, whiskey, by the gallon ; and the fact that the defendant was returned by the mercantile appraiser, and paid a tax of $15 to the county treasurer, and took out a license from said county treasurer as a distiller, will not protect defendant from the consequences of sales made since the act of May 24, 1887. Answer: This is affirmed as the law.1 2. That even a proper license to a distiller would not authorize him to sell at more than one point in the county. Answer: That is affirmed. 3. That when a person residing in one place, receives an order for goods from a person in another place, and sends or in person delivers the goods to the purchaser, and collects the price thereof at the time of delivery at the residence of the purchaser, the sale is made at the place of the residence of the purchaser. Answer: That is affirmed.0 4. A delivery of goods to a carrier, with directions to collect on delivery, or in the usual phrase, marked C. O. D., is a reservation of the title to secure payment of the price, and the title does not pass until the goods are actually accepted and paid for, and under such circumstances the place of the sale is where delivery is made by the carrier to the purchaser.* Answer: This is affirmed.3 '5. That ignorance of the law excuses no man; every man is presumed to know the statute law of the commonwealth and to construe it aright; and if any individual should violate the law through ignorance, he must, nevertheless, abide by the consequences of his error; and it is not competent for him to aver in a court of justice that his infringement of the law was caused by his own mistake, or the mistake of his counsel. Answer: That is affirmed. Now, we are asked to charge you on the following points submitted by the defence: 1. That it having been shown by the testimony in this case, that the defendant has been for several years a distiller ; that he was appraised and returned as such by the mercantile appraiser of the county, for the year commencing May 1, 1888, and ending May 1,1889; that he paid the county treasurer $15 and lifted a license as a distiller for said year; then he was protected by said license for all sales made at his distillery. Answer. That is refused.4 2. That actual delivery and payment of the price of the article sold are not essential to a sale of chattels, and that if the jury believe that the parties to whom sales were made ordered the goods, and that they were separated from the mass by the defendant and placed in vessels at the distillery which were directed to the parties who had ordered the same, and were then delivered to a common carrier, then such sales were completed at the place of manufacture, and it can make no difference in the case that the packages were sent C. O. D. Answer: Because of the last clause in this point we have to refuse it; the first part of this point would be the law.5 3. That in all criminal cases the intent with which the defendant acted is an essential ingredient in the offence; and if the jury believe that there was uncertainty among lawyers, as well as judges, as to the true interpretation of the act of May 24, 1887; and if the jury further believe that the defendant did not intentionally violate the law, but acted in good faith, believing he was protected by the license issued by the county treasurer, then there can be no conviction and the verdict must be, not guilty. Answer: That is refused.6 Another point, which may apply to some of the defendants, is: 4. That if the jury believe that the parties at Meyersdale requested the defendant to send them whiskey, and in pursuance of said order, he separated the quantity ordered from the mass at the distillery, and placed it in vessels for them at that place, then that constituted a sale at the distillery, and the subsequent delivery by himself or any one else cannot affect the case, and the defendant must be acquitted. Answer: We say that if the jury believe that any defendant separated at the distillery, from the mass, the quantity ordered, and placed it in vessels for the one ordering it, that would constitute a sale at the distillery; and that much we affirm, but the rest we refuse. 6. That, under all the evidence in this case the verdict must be, not guilty. Answer: That we refuse.7 The jury returned a verdict of guilty on each indictment. Rules- for new trials having been discharged, judgment was passed that the defendants each pay a fine of $600 to the commonwealth, and undergo an imprisonment in the county jail for the period of three months.9 Thereupon the defendants, severally, upon an allowance thereof, took these appeals, assigning for error: 1-3. The answers to plaintiff’s points.1 to 3 4-7. The answers to defendant’s points.4 to 7 8, 9. The charge to the jury and judgment.8 9 Counsel cited: Acts of April 10, 1849, P. L. 576; March 31, 1856, P. L. 200; April 20, 1858, P. L. 365; May 13, 1887, P. L. 108; May 24, 1887, P. L. 194; Britton v. Commonwealth, 105 Pa. 312; 1 Benj. on Sales, § 181; Garbracht v. Commonwealth, 96 Pa. 449. Counsel cited: Zinner v. Commonwealth, 22 W. N. 97; Benj. on Sales, ed. 1875, §§ 592, 693; Garbracht v. Commonwealth, 96 Pa. 449; Penna. R. Co. v. Stern, 119 Pa. 24.