131 Pa.

Volume 131 — Pennsylvania State Reports

72 opinions

131 Pa. 1Borough of Millvale v. Evergreen Railway Co. (1890)
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 225 October Term 1888, Snp. Ct.; court below, No. S9T September Term 1881, C. P. No. 1 in Equity. On August 20, 1881, the burgess and town council of the borough of Millvale filed a bill in equity against the Evergreen Railway Company and the Pittsburgh & Northern Railroad Company, averring that the Lawrenceville & Evergreen Passenger Railway Co., without legal right and without the consent of the plaintiff, had constructed a narrow gauge steam raikoad upon certain streets in said borough, which railroad was not the kind of road authorized by its charter and was a dangerous nuisance; that the franchises of said company had become vested in the defendants, who without right and against the protest of the plaintiff, intended to extend said road and to widen it to a standard-gauge road, which would render it more dangerous and a much greater nuisance; praying for an injunction to restrain the defendants from laying any tracks on and over Bridge street in said borough and from widening the gauge of their tracks already laid upon the streets of said borough; for a decree, upon final hearing, that the defendants remove their tracks from Grant avenue and Hooker street, and refrain from further use and occupancy of any of the streets in the borough for the purposes of their said tracks; and for general relief. The Evergreen Railway Co. answered, maintaining a right in itself, as the successor of the Lawronceville & Evergreen Passenger Railway Co., to construct, widen, maintain and use the tracks referred to in the bill, and denying the right of the plaintiff to the relief prayed for. The Pittsburgh and Northern Railroad Co. filed a separate answer, disclaiming and denying any interest in the matter in controversy, and it was subsequently agreed by counsel that the bill should as to it be dismissed. Issue having been joined, the cause was referred to Mr. John O. JSTewmyer, as examiner and master. At the hearing before the master the parties agreed upon a statement of facts, which should constitute the master’s findings of fact, and was as follows: 1. That the plaintiff is a borough, incorporated by an act of assembly, of the state of Pennsylvania, approved February 13, 1868, under the corporate style and title of The Burgess and Town Council of the Borough of Millvale, and the territory comprising said borough is situate within the county of Allegheny. 2. That Bridge street, in said borough, is a street extending from the Ewalt (or Forty-third) street bridge over the Allegheny river to the Allegheny and Butler plank-road; that Grant avenue is a street extending from said Allegheny and Butler plank-road to Hooker street; and Hooker street is a street extending at right angles with Grant avenue to the northern boundary of the borough; said streets were all duly laid out and opened, and have been in continuous use by the public since prior to 1871; that Grant avenue and Hooker street are each of the width of 50 feet throughout, and Bridge street is of the width of 45 feet; and said three streets form a main thoroughfare and line of travel through said borough from the Ewalt-street bridge to the borough line. ■ 3. That about the year 1872 the Lawrenceville & Evergreen Passenger Railway Co. built a narrow-gauge steam railroad, of a gauge of three feet, from the southerly terminus of Grant avenue, in said borough of Millvale, to Evergreen Hamlet, in Ross township. That said road was constructed upon and along the whole length of Grant avenue, and upon and along the whole length of Hooker street from Grant avenue to the borough line; that said road was constructed through the centre of said two streets, except where said streets intersect, and was constructed by laying wooden ties upon said streets and fastening iron T rails across said ties, and in such a manner as to render it impracticable for teams and vehicles to be driven across said railroad track, except at certain street crossings; that where said streets intersect, a curve was formed in each from the centre of the street to within eight feet of the outside line of the street and back again to the centre of the street; that the distance from curb to curb on said streets is thirty feet, and the space occupied by said railroad is eight feet, leaving eleven feet on either side of the track free from any obstruction or impediment by said railroad; that at and on either side of the point where Butler street crosses Grant avenue, said railway company made a cut through the centre of Grant avenue wide enough for the construction of a single track and about 600 feet in length, thereby rendering it necessary for the sides of said street to be graded down to a level with said track; and also necessitating the grading down of some of the streets crossing Grant avenue at great cost to said borough; that previous to the construction of said road said Grant avenue at said cut was impassable for vehicles, and certain cutting was necessary to make it passable, but said railroad necessitates the cutting to a much greater extent than would otherwise have been required; that the said street, at said point, is now in the same condition as the remainder of the street with reference to the railroad thereon and travel along it, and since the construction of said railroad, and shortly before the filing of the bill in this case, said company constructed a turn-out or switch upon and near the southerly terminus of Grant avenue. 4. That said railroad was constructed as an ordinary steam railroad, and of the ordinary gauge of a narrow-gauge railroad, and its gauge is not the gauge of the Citizens Passenger Railway in the city of Pittsburgh, but, since the filing of the bill in this case, the ties of said railroad have been changed from narrow-gauge ties to ties suitable for a standard-gauge railroad. 5. That said railroad was constructed in the manner aforesaid, and upon the public streets in said borough, without the consent of the borough authorities, but against their protest. And ever since its construction the company operating said road has continued to run freight and passenger cars and steam locomotives over and upon said railroad and upon said two streets. 6. That said Lawrenceville & Evergreen Passenger Railway Co. claimed the right to locate, construct and operate said railroad upon said streets, by virtue of its act of incorporation, entitled, “An Act to incorporate the Lawrenceville & Evergreen Passenger Railway Company,” approved May 13, 1871, and the act of assembly, approyed March 9, 1872, entitled “A supplement to an act to incorporate the Lawrenceville & Evergreen Passenger Railway Company, approved May 13, A. r>. 1871.” 7. That subsequent to the construction of said railroad, and prior to the filing of the bill in this case, all the rights, privileges, franchises and property of the Lawrenceville & Evergreen Passenger Railway Co. became vested in the Evergreen Railway Co., the defendant in this case, by virtue of a judicial sale of all the rights, privileges, franchises and property of said Lawrenceville & Evergreen Passenger Railway Co., under and according to the provisions of the act entitled “ An act concerning the sale of railroads, canals, turnpikes, bridges and plank roads,” approved April 8, 1861, and the supplement thereto, approved May 25, 1878, P. L. 145. Upon the facts, so agreed upon, the master, on November 19, 1887, reported his opinion, as follows : The facts being thus undisputed, the only questions presented by counsel for determination involve the construction and constitutionality of the original act of incorporation of the Lawrenceville & Evergreen Passenger Railway Co., approved May 13, 1871, P. L. 850, and the supplement thereto, approved March 9, 1872, P. L. 290, entitled “ A supplement to an act to incorporate the Lawrenceville & Evergreen Passenger Railway Company, approved May 18, A. D. 1871.” The contention of counsel for plaintiff is, that the act of incorporation of May 13,1871, conferred on the company thereby created only the restricted privileges of a “ passenger railway,” as distinguished from the more general and comprehensive powers granted to a “ railroad,” and that such intent is shown by the use of the word “ passenger,” in the title, otherwise the title is misleading, and therefore fatally defective; that the supplement approved March 9,1872, seeks to enlarge the powers of the company by authorizing the extension of its line to Butler county, and granting to it “ all the powers and privileges in locating, constructing and operating their road as are contained in the act regulating railroad companies, approved February 19, 1849, and the several supplements thereto, and thereby changes the entire character of the corporation without clearly expressing such object in the title ; and, not being germane to the original subject is consequently obnoxious to the ■constitutional amendment of 1864, which declares “that no bill shall be passed by the legislature containing more than one subject, which shall be clearly expressed in the title, except appropriation bills.” These propositions were very earnestly and ably urged by the counsel, and it must be admitted that the questions thus raised are not free from doubt or uncertainty. In support of the first proposition, it is contended that the term “passenger railway” has a technical and well defined meaning, and that the powers granted to such companies are much more limited than those possessed by “ railroads; ” therefore, an act which confers the enlarged privileges enjoyed by the latter (such as the right of eminent domain) under a title which purports to be for the incorporation of a “passenger railway,” is for the reason above stated unconstitutional. Two cases are cited to show the distinction between passenger railways and railroads. In the Kentucky case of Louisville .etc. R. Co. v. Louisville City R. Co., 2 Duv. 175, a railroad is .defined to be for the use of the universal public in the transportation of all persons, baggage and other freight; and a street railway, as dedicated to the more limited use of the local public, for the more transient transportation of petsons only, and within the limits of a city only. The other is the ease of the Commonwealth v. Central Pass. Ry., 52 Pa. 519, wherein it is said, “A distinction has been recognized between railroads as a class and passenger railways,” but exactly wherein that distinction lies is not stated, nor was the constitutionality of an act of assembly involved in that case. It is obvious that the Kentucky case, which simply attempts to define the nature of a street railway, affords but little assistance to this inquiry. It may be admitted that if the word “ street ” were used in the title to an act of incorporation, which conferred the right to condemn and take private property, that such a title would tend to mislead by excluding, impliedly at least, any other location ; but, however that may be, such is not the case now under consideration, neither the title nor the body of the act containing such words of limitation. True, in the case of West. Penna. R. Co.’s App., 104 Pa. 406, cited by plaintiff, the court incidentally said that the defendant company was originally incorporated as a street passenger railway, but an examination of the case shows that the questions there presented were essentially different from those now under consideration, which were not involved in or material to that issue. The question there raised was not a constitutional one, but related mainly to the right of a private party to assert and enforce forfeiture of the franchises of a corporation by bill in equity, on the ground of nonuser or abandonment. The difficulty of accurately determining the precise powers and privileges to be enjoyed by passenger railways, may be inferred from the fact that prior to the enactment of May 23, 1878, P. L. Ill, there was no general law in force in Pennsylvania, under which such companies could be incorporated. They all, like the defendant company, existed and held their franchises under and by virtue of special acts of incorporation; and, while usually confined by the terms of their charters to the streets of a particular town or city, such limitation was neither necessary nor universal, while the powers conferred differed in scope in almost every instance; some companies, for example, being confined to the transportation of passengers only, and the use of horse power as a motor, while others were permitted to carry freight as well as persons, and also to use steam as a motive power. With this diversity of powers granted to these companies, and in the absence of any well defined meaning attached to the term “ passenger railway,” it is plain that each act of incorporation must be examined at length in order to ascertain the extent of those powers, as no title could or did furnish a complete index to the contents of the act, nor is it legalty necessary that it should. “ If the title fairly gives notice of the subject of the act so as reasonably to lead, to an inquiry into the body of the bill, it is all that is necessary: ” Allegheny Co. Home’s App., 77 Pa. 77. Does then the title to the act of May 13, 1871, which is “An Act to incorporate the Lawrence-ville & Evergreen Passenger Railway Company ” comply with this rule ? It will be observed that this language does not necessarily indicate an intent to confine the corporation to the use of streets or within the limits of a town or city. On the contrary, it may fairly be inferred that it was to connect the locality known as Lawrenceville, in the city of Pittsburgh, with Evergreen, a hamlet or village in Ross township; and an examination of the body of the act would have clearly shown that such was the object. It, in terms, fixes the termini of the road at Forty-third street, Pittsburgh, and Evergreen Hamlet in Ross township. The route is located partly in the city of Pittsburgh, thence across the Allegheny river by the Ewalt-street bridge to the Allegheny and Butler road, and thence by the most practicable route to Evergreen Hamlet, with the right to go by and upon any public road now or hereafter to be opened. Power , is given to construct such turnouts and switches as may be necessary; to cross any other railroad at grade; to use steam as a motive power, and to carry freight and passengers. Authority is also given to consolidate with the Citizens or any other passenger railway near its city terminus. Without stopping to consider the full extent of these powers and privileges, it must be apparent that they are greatly in excess of those ordinarily necessary for the operation of a mere street or city railway. With the information thus furnished by the title, and in the absence of a legal definition of “ passenger railways,” which would exclude the powers granted by this act, the master, under the weight of Pennsylvania authorities, must decline to sustain the plaintiff’s position, so clear a case not being presented as to overcome the presumption of constitutionality. “ All the presumptions are in favor of the constitutionality of an act of assembly.....To doubt is to decide in favor of its constitutionality. It is only in a clear case that we are justified in declaring an act to be unconstitutional: ” Craig v. First Presb. Church, 88 Pa. 46; Cooley’s Con. Lim., 3d ed., 182, et seq. The same conclusion seems inevitable with respect to the supplemental act of March 9, 1872, which contains an enlargement of the corporate powers of the company before recited. The title thereto is “ A Supplement to an act to incorporate the Lawrenceville & Evergreen Passenger Railway Company, approved May 13, 1871.” Precisely such a title to a supplement was before the court in the State Line etc. R. Co.’s App., 77 Pa. 431, and the rule was there laid down “ that where the legislation in the supplement is germane to the subject of the original bill, the object of such supplement is sufficiently expressed in the title,” and the practice to so designate supplements was there shown to be so general and uniform as to entitle it to great weight with the court. Under this rule, and if the master’s views respecting the original act be correct, he fails to find any warrant for holding the supplement unconstitutional, as all the legislation therein contained relates to the defendant corporation and is germane to the subject of the original act. Counsel for defendant also cited a decision in which your honorable court very recently passed upon the matters now under consideration, and although the proceedings were not between the parties to this controversy, these same acts of assembly received a judicial construction which, under all the circumstances, the master believes to be binding on him. This decision was rendered in the equity proceedings of Graff, Bennett & Co. v. The Evergreen Ry. Co., this defendant, at No. 463 December Term 1886, in which the same constitutional questions seem to have been raised, and in an opinion filed by his Honor Judge Stowe, the objections were held not well founded, thus sustaining the constitutionality of both the original and supplemental act: 2 Pa. C. C. R. 502. The master therefore concludes that neither the original act of incorporation of May 13, 1871, nor the supplement thereto, approved March 9,1872, has been shown to so offend against the constitutional provision as to sustain the plaintiff’s contention. It does not seem to be questioned that the defendant company possesses the legal right to construct its road in the manner complained of, if these acts of assembly are constitutional. As such is, in effect, the conclusion reached by the master, he accordingly recommends that the bill be dismissed at the costs of the plaintiff, and herewith submits a form of decree in conformity with this opinion. All of which is respectfully submitted. The plaintiff filed with the master exceptions to his conclusions of law, specifying that he erred in not finding: 11. That the supplement of March 9, 1872, P. L. 290, was not germane to the original act of May 13, 1871, P. L. 850.8 12. That the subject of said supplementary act was not clearly stated in its title.3 13. That the title of said supplement was misleading.4 14. That said acts of 1871 and 1872, being dependent upon one and the same title, and being in effect. one and the same act, are in conflict with § 8, article IX. of the constitution, as amended in 1864, because (a) they relate to more than one subject and only one is expressed in the title; (Jb) the title is misleading as to the supplemental part; (e) no notice is given.in the title as to the subject matter of the supplement.5 Said exceptions, being overruled by the master, were after-wards renewed before the court, and after argument, were dismissed, and the decree recommended by the master adopted and entered, without opinion filed. Thereupon the plaintiff took this appeal, specifying that the court erred: 1. In entering the decree dismissing the plaintiff’s bill. 2-5. In dismissing the plaintiff’s exceptions.8 to 5 6. In not decreeing the relief prayed for by the plaintiff.
131 Pa. 24McKendry v. McKendry (1890)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 1 OP ALLEGHENY COUNTY. No. 10 October Term 1889, Sup. Ct.; court below, No. 448 June Term 1887, C. P. No. 1. On April ,£¡8, 1887, Elizabeth J. MeKendry by her mother and next friend, Matilda B. Thompson, brought ejectment against W illiam MeKendry and John Eessler, a tenant under him, to recover a tract of 86 acres of land in Moon township. Issue. / Atfthe trial on May 3, 1888, it was admitted that the legal tithe to the property in dispute was in the plaintiff, who was the wife of William MeKendry, the defendant. The facts then Kiade to appear, so far as material to this report, wore as follows: Up to April 1, 1886, Mr. and Mrs. MeKendry were living /together at a house known as the Mark’s house, possession of which they then surrendered, Mrs. MeKendry going to the home of her mother, Mrs. Thompson, until they could have the house upon her own farm, the property in dispute, put in order for their occupancy. In May, 1886, they were together upon the property in dispute, engaged for several days in putting it in order and preparing a garden, then intending to make their home upon it. • They put some goods into the house. Soon after, however, difficulties arose between them, and Mrs. Mc-Kondry remained with her child at the home of her mother, the key of the house, the goods previously placed there having been removed, being left by her in the custody of a Mr. Neely. In the fall of the year, Mrs. MeKendry made an agreement with a tenant to lease the property to him from April 1,1887, but in November, 1886, her husband obtained the key from the neighbor who had it, and kept it, declaring that no person could move on that place, because he had possession of it, and if any one would come upon it he would put him off. About April 1, 1887, Mr. McKendry took actual possession of the property and put into it the family of Mr. Fessler, and a Mr. -IMcCloskey, who was living with them. Testimony having been introduced to show that Mrs. Mc-Kendry had refused to live with her husband upon the property, alleging as her excuse that her' n^other was an invalid, and needed her care, the defendant offered in evidence the exemplification of a record from the Court of Quarter Session^, of Beaver county, to No. 10 December Temí, 1886, Q. S., showing that on December 9, 1886, upon an indictment based upon the information of Mr. McKendry, one JeroWe Prosser was convicted of adultery with Mrs. McKendry, the plaintiff in this case, and after conviction was sentenced for’^the said of-fence : This for the purpose of showing that the excuses of the plaintiff were frivolous and a mere pretence, and tiliat at this time she had deserted her husband and committed tire offence with which Prosser was charged, thus showing that sihe had left her husband without cause and without provocation.^ Objected to, as incompetent and irrelevant. By the court: Objection sustained; exception.5 The offer was then renewed by the defendant, to bo followed Dy proof that Lizzie McKendry, the person named in said record, was the plaintiff in this case, and that she did commit-^ adultery with said Prosser. Objected to, as incompetent and irrelevant. By the court: Objection sustained; exception.6 At the close of the testimony, the court, Slagle, J., charged the jury as follows : This is an action by Mrs. McKendry against her husband to ■recover possession of property which is in his possession and which she claims the right to have. It is not disputed that the title is in Mrs. McKendry; that it was her property, acquired by her from her father, and to which she has the undisputed right; and if the suit were against any other person than her husband, there would be no question as to her right to your verdict. But the law relating to marriage and the rights of married women makes the questions of difficulty in this case. Prior to the act of 1848, commonly known as the Married Woman’s Act, upon marriage all the personal property of a married woman became the property of the husband, absolutely, and her real estate became his for his life. He had the right to control and manage it,'to receive the rents and profits of it, and he had the right to her earnings. She had no right even to go into business and make money for her own use. That was all changed by the act of 1848, which secures to married women all property owned by them at the time of marriage, or which may be acquired after marriage except from her husband, and in some cases it may be acquired from the husband and secured to her. [I take it that the act of 1848, and if there were any question about it, the act of 1887, secures to a married woman the absolute use and control of her property, even as against her husband,] 4 and certainly against every person else. The creditors of the husband cannot touch it. The difficulty arises in the fact that by the law a man and wife are considered one person; and, therefore, as a rule, no action can be maintained by a wife against the husband, or by a husband against the wife. In 1856 an act of assembly was passed which authorized a married woman who had been deserted by her husband to bring suits in her own name. Prior to that, she could not bring a suit even against a stranger in her own name ; it was necessary to join her husband with her, because they were regarded in law as one person. In no case was she authorized to bring a suit at common law against her husband, for the reason that she would be suing herself, in contemplation of law. But before the act of 1856, and even before the act of 1848, a wife was not deprived entirely of the protection of the courts, and it was held that she could in equity protect her rights even against her husband. In Pennsylvania, until 1886, our courts had no equity powers, and therefore she was almost deprived of any remedy. But our courts, prior to the passage of that act conferring equity powers upon them, had adopted equitable principles, and there were certain actions that were specially called equitable actions, and among them was the action of ejectment. There are numerous instances in which a party may bring an action of ejectment where at common law it could not be done. ' For instance, we have a very familiar case in that of specific performance, and even though the act conferring equity powers authorizes courts by bill to specifically enforce contracts, it is nevertheless still done by action of ejectment, because it is a substitute for a bill in equity; [and I therefore conclude that though this was a common law form of action, it might be treated as and substituted for a bill in equity, for the purpose of enforcing the rights of the plaintiff in this case; and I have so treated it in the trial thus far, and instruct you, therefore, that the plaintiff has a right to recover, provided she has made out a case in other respects entitling her to a verdict.] 2 We then come to the question as to her rights. As I remarked before, her title is undisputed, and if there be nothing in the marriage relation which prevents her from recovering, she is entitled to your verdict against her husband, and we must then look at that relation to see how it affects this case. Although the acts of 1848 and 1887 secure to a married woman her property, the use, enjoyment and the control of it to a large extent, she cannot sell it without the consent of her husband, he joining with her. But those acts of assembly were not intended, even as to the property rights of the husband and wife, to create an absolute divorce, and they have some joint interest in the property which is owned by the wife. Though the husband and wife each have control of their own estates, there is necessarily growing out of the marriage relation some community of interest in their property. Therefore, she has a right to say to her husband, “ I have this property and we will make our home upon it; ” and if they do, she would have no claim for rent unless there was a bargain made for it. She could not sue him for his occupancy of it, and as I held in a suit between these same parties, she could not sue him for trespass upon it, in a common law form of action. But if they mutually agree, and here is where I think you will find the real point of the cáse, to go and make their home upon the property of the wife, and do make their home upon that property, she has no right arbitrarily and without cause to remove from the property and bring suit against him to recover it, because the action being equitable she must do equity, and, therefore, the courts will not enable her to do what is unjust and wrong, and if she comes into court in that way she is not entitled to recover. Then the question for you to determine is, did these people make an arrangement to go upon that property and occupy it for their home, and did they do so ? Because, until the arrangement is perfected, I do not think that the right of the husband to occupy is perfect. But if ho went on that property in pursuance of the arrangement with his wife for the purpose of making a home, she assenting to it, and he took possession of the property with that purpose and under that arrangement, then she cannot, without cause, disavow or annul the arrangement and bring an action of ejectment to recover the property. That an arrangement was made is admitted upon both sides; that in the spring of 1886 they had agreed and had prepared to go on the property, had been there and put their furniture in, cleaned the house, and were about ready to go upon the property, there is no dispute. For some reason they never did live together after they got the house ready for occupancy. They were there, as I understand, two or three days ; but, if I remember the testimony properly, they were there cleaning the house and putting it in order. If I am mistaken about that you will know. For some reason, afterwards she did not go, but she rented the property or made a lease of it to Mr. Vandevort for the year 1887. There is some testimony that her personal property was all removed from the premises, and Mr. Neely, I believe, says that was done with Mr. McKendry’s consent; that he said, “let her take it.” There is some evidence that he took away what he had put there, a stove and some other things. He went back in the fall, got the key from Mr. Neely, to whom it had been delivered by Mrs. McKendry, and got into the property, but there was no actual occupancy of it until April or May, 1887; and when he did go into actual, permanent occupancy of it he brought with him a family, Mr. Fessler’s and Mr. McCloskey, who was living with them, and put them in the place. [It is a question you will consider, whether that possession was in pursuance of this arrangement made with his wife, or whether it was inconsistent with that arrangement. If it was in pursuance of that arrangement, she would not be entitled to recover. But if it was inconsistent with that arrangement, and it is for you to say whether or not the bringing of a family into a three-roomed house is inconsistent with his possession in pursuance of that arrangement, she would be entitled to recover. He must not only have taken possession, but he must retain it in pursuance of that agreement.] 3' The facts have all been commented on at length by counsel, and they are fresh in your minds. I do not need to say further than this, except to direct your attention to the point that he must have entered into and retained possession in pursuance of and consistently with agreement. The defendant requests the court to charge: 1. If the jury believe that Elizabeth J. McKendry, the wife of said William McKendry, the defendant, made an arrangement with her husband to go to and live upon the premises in dispute, some time prior to April 1, 1886; that the said Elizabeth J. McKendry, in conjunction with her husband, moved her furniture and household goods from the Mark’s house, where they were then living, to the premises in dispute, and fitted up the said house for the purpose of their habitation, and that they occupied the same for some time, in cleaning and fitting up the same, and in superintending the making of garden thereon, for their use and enjoyment in the occupation of the same; and if the jury should further find that said William McKendry, the husband, retained possession of the said premise's for the purposes of their occupation and habitation, but that said Elizabeth J. McKendry, his wife, by excuses and frivolous objections, declined to go to and live upon the said premises with her husband, and deserted him and her habitation, then the plaintiff is not entitled to a verdict in her favor, and your verdict must be for the defendant. Answer: Affirmed, if the jury further find that Mr. Mc-Kendry went into and retained possession in pursuance of the arrangement referred to. 2. Under the facts in evidence, Elizabeth J. McKendry, the plaintiff, cannot maintain this action against the defendant, William McKendry, her husband, and your verdict should be for the defendant. Answer: Refused.1 8. It having been proven, on the partof the plaintiff, that there was an arrangement made by which William McKendry and Mrs. Elizabeth J. McKendry, his wife, were to go to live upon the farm in question, and that the defendant did go to live upon said farm, and is now living upon said farm, the burden of proof is upon the plaintiff to show that the arrangement was changed, either by the mutual consent of the parties, or that she, Elizabeth J. McKendry, had such reasonable cause for leaving her husband, as would entitle her to a divorce, such as (1) “when the husband has, by cruel and barbarous treatment, endangered his wife’s life; ” or, (2) “ offered such indignities to her person as to render her condition intolerable and life burdensome.” Answer: Affirmed, if the jury find that McKendry went on the farm and is now living on it in pursuance of the arrangement referred to. The jury returned a verdict in favor of the plaintiff. A rule for a new trial having been discharged, the defendant took this appeal, assigning for error: 1. The refusal of the defendant’s point.1 2-4. The parts of the charge embraced in [ ] a to 4 5, 6. The refusal of the defendant’s offers.5 6
131 Pa. 36McCracken v. Gumbert (1890)
APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 62 October Term 1889, Sup. Ct.; court below, No. 79 January Term 1888, C. P. No. 2. On October 18, 1887, Mary Ann McCracken brought trespass against R. R. Gumbert and William Huey, partners as Gumbert & Huey, to recover damages for the alleged breaking and entering of the plaintiff’s close by the defendants, and, in connection therewith, the digging of holes and trenches and the building up of piles of earth, stones, logs, etc., thereon. The defendants pleaded not guilty. At the trial on October 10, 1888, the following facts were shown: On June 30, 1859, Alexander McClure, being the owner of a tract of land lying on the Monongahela river in Elizabeth township, Allegheny county, containing 244J- acres, entered into a written contract by which he sold and agreed to convey to Thomas Farrow, John Gumbert and William Huey, in fee simple, all the coal under said land, excepting, inter alia, “the soft red coal at the out-crop of the coal in said entire premises.” In addition to the coal itself, the contract specified certain rights and privileges as embraced in the sale, in the following language: “ Together with all the necessary rights and privileges of mining and taking away the same by the use of entries, drifts and courses for air and drainage, and air holes, pit-mouths, places for the deposit of slack and slate, and right of way for railroads over surface at the crossing of ravines, but no right for hauling over the surface of the inclosed land with teams or otherwise, than when necessary in crossing a ravine with pit cars in the usual way; and the said McClure also grants the privilege of forever hereafter running other coal from other lands through the entries and railways made and used in taking out the coal herein above granted.” McClure having died, his administrator on January 17,1866, executed and delivered to the vendees, in pursuance of a decree of the Orphans’ Court of said county, a deed conveying to them the coal, rights and privileges as the same were specified in said contract. The title conveyed by said deed after-wards became vested in the defendants. A part of the surface above said coal containing about eighteen acres became vested, at some time subsequent to the sale of the coal by McClure, in the plaintiff’s husband, and, at his death, some years prior to the bringing of the action, a life estate in these eighteen acres passed under his will to the plaintiff. The plaintiff’s land lay along the rear edge of the McClure tract, back from the river, and was bounded on the side away from the remainder of the McClure land by a tract belonging to one Pierce. The boundary line between the Pierce and McClure tracts ran along the bottom of a ravine, which lay about fifteen feet below the level of the coal seam. The Pierce tract was underlaid with the' same seam of coal, starting on the opposite side of the ravine and at the same level above its bottom. At one point, on another part of the McClure tract than that owned by the plaintiff, the McClure and Pierce coals came together, without any break in the continuity of the stratum. The defendants, working backward from the river, had exhausted all the coal under the McClure land, except a smallv block lying next to the Pierce line, at a point where the coal on the two properties came together. Having then purchased the Pierce coal, they made an opening from their workings under the McClure land out through the crop coal to the side of the ravine, built a railroad across the ravine to a pit-mouth which they opened in the face of the Pierce coal, and proceeded to transport coal mined on the Pierce tract across the ravine by means of this railroad, and so into their entries on the McClure tract and through them to the river. Testimony for the defendants tended to prove that the block of coal left standing on the McClure tract might have been taken out at one time through the McClure workings, but that, at the time the railroad was built across the ravine, it could be gotten out only through, the Pierce coal and by means of the railroad; also that at no time after the purchase of the Pierce coal by the defendants was there any practicable way of taking it out through the McClure land, otherwise than by means of the railroad constructed by them. In constructing their opening on the McClure side of the ravine, the defendants necessarily removed a considerable quantity of soft red coal from the outcrop on the land of the plaintiff, which, however, they were not shown to have made any use of, and their testimony was to the effect that it was stored in old workings under the plaintiff’s land. They destroyed a part of a crop of oats in constructing the railroad from this opening across the ravine. At the close of the testimony the court, Magee, J., charged the jury in part as follows: The damages claimed by the plaintiff consist of three items. (1) Damage done to her by the destruction of a crop of oats. (2) In the interference with the use and enjoyment of a certain portion of her land. (3) The value of a certain quantity of soft red coal taken and used by the defendants in the construction of the fill and railroad complained of. * ^ & ifc -K- ifc Now, under the view I take of the case, it does not matter whether the tenant for life is old or young, whether she will live one year or ten years, but it bears upon the deprivation that has taken place from the time the entry was made and the railroad constructed, until the time of the bringing of this suit; because that is damage she can recover. If they go on interfering with her rights she can bring another action and in the end restrain them from so doing..... The only remaining item is for the taking of the soft red coal in opening the entry. There is no dispute as to the fact that the red coal was taken, nor is there any particular difference as to the amount taken; there may have been some little difference in the testimony as to whether it was all that character of coal to which the defendants had no right, admittedly no right, under their grant from McClure. The grant made by McClure to the defendants, or their predecessors, did not confer soft red coal. Now I think I have sufficiently referred to the evidence, and I have done so in order to enable you to estimate in a proper way the amount of damage done to the plaintiff, if it becomes necessary that you should determine that matter. And that depends upon a question of law. [The defendants say that the plaintiff cannot recover in this action for the reason that they had a conveyance of the coal from Mr. McClure, who at one time owned the land involved in this controversy, as well as other surrounding lands, which after granting 244'acres of coal, with the right to mine the the same, and make entries and so on, contained this additional provision: “ And the said McClure also grants the privilege of forever hereafter running other coal from other lands through the entries and railways made and used in taking out the coal hereinbefore granted.” The defendants claim that by virtue of this provision in their original grant, in law they are permitted to make this entry, which, it is claimed, occasioned the damage for which this suit is brought; that under this, privilege they had a right to construct this entry; and, therefore, in exercising the right conferred, they are not responsible in law for damage resulting from a careful and proper exercise of that right. -There is no evidence here to show that it was not done in a careful and proper way; and they say, therefore, that the plaintiff cannot recover. Now, that is a question of law submitted to the court as to the construction of the terms of an agreement. As a matter of law I say to you that the privilege conferred by the clause I have just recited does not warrant the making and using of new entries and railways for the mere purpose of running coal from other land. But it confers the privilege forever of making and using, in the running of coal from other lands, such entries and railways as have been made and used in taking out the coal in the tract granted. If, therefore, you find from the evidence that the entry and railway in question — that is, the things he has a right to use in connection with mining and running coal from other tracts —were not made and used in taking out the coal granted in the deed, the defendants cannot justify their act as lawful under the privilege conferred by the deed and the -agreement mentioned.] 1 Now, I do not mean to say that it did not confer the right to make an entry; tbe grant itself gave tliem tbe coal under 244^ acres of land (soft red coal I should say excepted), “ together with all the necessary rights and privileges of mining and taking away the same,” that is the black coal. How? “ By the use of entries, drifts and courses for air and drainage and air holes, pit-mouths, places for the deposit of slack and slate, and right of way for railroads over surface at the crossing of ravines,” etc. That is what they had a right to do; to make railways, to make entries, to cross ravines. For what? For the purpose of taking out the black coal. And he also covenants and agrees that after they have done that, that anything reasonably and properly necessary in connection with mining the black coal under the tract, any reasonable and legal exercise of the privileges of the grant, could be done afterwards; but it does not authorize the construction of entries over and under the surface of the property, for the mere purpose of getting at other coal. I take it, that is not the meaning of the grant. It gave authority to the defendants to do what was necessary for the mining and taking away of the coal conveyed; and if you find that this entry and railroad were legally, properly and legitimately made for the purpose of mining the coal conveyed to the defendants, then they can be used by them for the running of other coal, because those are two things he can use under that privilege; and if you find the fact to be that they were made for the purpose of mining the coal granted by the deed from McClure, then the defendants have a right to use them and the plaintiff could not recover. That, then, is the question to be determined in order that you shall apply the law. It either relieves the defendants from liability or makes them responsible for the trespass, accordingly as you find the fact to be in reference to the object and purpose for which the entry was constructed. I omitted in speaking of the right of the plaintiff to recover for the red coal, an additional defence set up by the defendants, that it was not a subject of damage for wdiich the plaintiff, who is a tenant for life, could recover; that she did not have any right to the coal, and therefore the damage was not to her, but was a damage to the tenant in fee. That is one of the claims, as I understand it, on the part of the defendants, in regard to the right of the plaintiff to recover for the red coal. Now, as carrying out the views I have expressed in my general charge, I will read and answer the points presented by the parties, and they are affirmed, as I understand them, carrying out and supporting the views which I have expressed to you more at length on matters of law. The plaintiff asks me to charge : 1. That upon all the evidence in the cause the verdict should be for the plaintiff. Answer: This point is refused. 2. That unless the entry, fill and railway, complained of by the plaintiff, were made in good faith for the purpose of taking out the coal on the McClure land, the act of the defendants in making them was a trespass; and, unless they were also used in taking out said coal, the use thereof for taking out the Pierce coal was a further trespass. Answer: This point is affirmed. I have indicated in my general charge more at length the effect of this point as matter of law, and the construction of the right of the defendants under their deed.3 The defendants ask the court to' charge the jury: 1. That under all the evidence the verdict should be for the defendants. Answer : This point is refused.3. The jury rendered a verdict in favor of the plaintiff for $146. On January 10, 1889, a motion for a new trial was overruled by the court, without opinion, “ the plaintiff, by writing filed, having remitted the sum of $61 of the verdict of the jury, being the item found by the jury as the damages sustained from the taking of the red coal,” and ' judgment was entered on the verdict as thus reduced. Thereupon the defendants took this appeal, assigning for error: 1. The part of the charge embraced in [ ] 1 2. The answer to defendant’s point.3 3. The answer to plaintiff’s point.3
131 Pa. 46Schubkagel v. Dierstein (1890)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO 2 OF ALLEGHENY COUNTY. No. 84 October Term 1889, Sup. Ct.; court below, No. 236 October Term 1887, C. P. No. 2. On September 2, 1887, Mary Schubkagel brought assumpsit against Joseph Dierstein to recover damages for an alleged breach of a contract to marry the plaintiff. The defendant pleaded not guilty. At the trial on January 31, 1889, the following facts were shown: In June, 1887, the defendant, then about sixty-eight years of age, lived with his wife in one end of a double house, belonging to himself, situated in the city of Allegheny. The plaintiff, who was a widow and about sixty-four years of age, occupied the other end of the house as his tenant. The defendant’s wife died on June 15th, of that year. During her sickness the plaintiff assisted in waiting on her, and a door, which communicated between the plaintiff’s and defendant’s sides of the house, was kept unlocked, so that the defendant and his wife could get help whenever they wanted it. After Mrs. Dierstein’s death, this door remained unlocked, and the defendant frequently passed through it into the plaintiff's apartments, and paid friendly visits to her. Testimony for the plaintiff tended to show that on July 1,1887, the defendant commenced a courtship which culminated on July 15th in a contract between the plaintiff and defendant to marry. The plaintiff in her testimony stated that no time was fixed for the marriage ceremony ; that the defendant did not refuse to marry her, but simply locked the door communicating between their apartments, quit coming to see her and ceased to talk with her or have anything to do with her. She testified further on cross-examination, as follows: Q. Did he ever refuse to marry you? A. I asked him about the marriage, and he said that his property and everything were all gone; “ I formerly been worth eight thousand dollars, and whoever would get married to me would have to marry a poor man.” Q. What did you say? A. I said all right, left him and went and sued him. Q. What suit did you bring? A. I had loaned him two hundred dollars, for which I had no receipt or note, and I sued him for to recover that much money. Q. Did you receive it? A. I received the money. Q. Then because he locked his door, you went and sued him for breach of promise ? A. Yes, sir; I sued him for $200, and then for breach of promise. It was further shown that after the commencement of the present action the defendant was married to another person. At the conclusion of the plaintiff’s case the defendant moved for a compulsory nonsuit for the following reasons : 1. Because the plaintiff has failed to prove the statements set forth in the declaration, which constitutes the plaintiff’s cause of action. 2. That the plaintiff has failed to prove any legal contract of marriage, together with a refusal to marry. 8. That under all the evidence in this case, there is no legal contract of marriage proven and a breach of the same, upon which the case can be submitted to the jury. By the Court: Motion overruled; exception.5 The defendant, testifying on his own behalf, denied the making of any contract to marry the plaintiff. He further testified that after his first wife’s death he had been compelled to pay about nine thousand dollars of bail money; that he sold his property in order to pay this debt, and at the time of the trial owned nothing. Henry Ferring, called for defendant, testified that he was “ reading law ” and had done business for the plaintiff in the summer of 1887, as her attorney. Q. In what cases ? Objected to, on the ground that the witness was rendering service to the plaintiff as an attorney. We propose to show that the witness attended to some suits' between this woman and this man, and that this and all other cases were settled for $200. Q. Did you appear as counsel for this plaintiff at any place at that time? A. Yes, sir. Q. When was it that you did so ? A. It was some where in 1887 ; I don’t recollect the date; it was in August, I believe. Q. Before what alderman or squire? A. Before Alderman Stork, Seventh ward, Allegheny. Q. What cases did you appear in, and what did Mrs. Schubkagel say and what was done ? Objected to. The records are the best evidence, and the plaintiff’s counsel objects to the witness going into the character of the cases, as incompetent and irrelevant. By the court: If witness acted as her attorney, it’s like a doctor, it’s confidential communications, and he is not bound to answer. Objection sustained; exception.1 Adam Stork, called for defendant, testified that he was an alderman in Allegheny city, and had business before him between the parties, in August, 1887; he had the records with him: Defendant’s counsel offers to show by the witness on the stand that there were two cases before him, in which he acted in the capacity of an alderman, and that the cases were heard before him; that Mary Schubkagel was the plaintiff and prosecutrix, and the present defendant the defendant, and that he heard and disposed of and settled the cases, as shown by the two transcripts now shown to the court, which settlement included the present case. —The first of the two transcripts referred to in this offer, showed a criminal prosecution against Joseph Dierstein, upon an information made by Mary Schubkagel, charging the defendant with having committed the offence of fornication with the prosecutrix on July 15, 1887, which information was withdrawn by her on August 31, 1887. The other transcript exhibited an action of debt brought by Mary Schubkagel against Joseph Dierstein to recover S200 alleged to have been loaned to the defendant on June 25, 1887 ; and showed that on August 24, 1887, judgment was entered in favor of the plaintiff for said sum, and that on August 26,1887, it was paid into the office of the alderman and the plaintiff acknowledged satisfaction upon the record. Offer objected to as incompetent and immaterial. By the court: Objection sustained; exception.3 At the close of the testimony the court, Maoee, J., charged the jury in part as follows: The courtship apparently, from the testimony of the plaintiff herself, was of short duration. He began his attentions about the first of July, coming to see her then frequently, and these attentions were continued for fifteen days; he then became engaged, according to her statement, on the fifteenth of July; the attentions and demonstrations continued for fifteen days longer, and then came to an end. The wife of the defendant had died on the fifteenth of the preceding month, June, so that it was very prompt work. People may make up their min ds rapidly, or take a longer time in such affairs; so that these things are only elements that enter into the case for your consideration in the determination of what was really done. The plaintiff says that on the fifteenth of July, 1887, Mr. Dierstein said he would marry her, promised to do it, and she said she was willing. That makes a contract; a proposition on one side and an acceptance on the other* and the law says that if such a contract is not kept, then comes in the question of damages. You have the affirmation of this contract on the one side and the denial of it on the other. Now as to the defence: The defendant says he did not make any contract; that their relationship was only friendly; they were in the same house, and families often live in the same houses and under the same roof in different apartments, and that was their case, and that his wife had been sick; the plaintiff was his neighbor and that she had been kind to his wifethat the door between their apartments had been left open. With an unlocked door between families in the same house and sickness going on, it is not astonishing that that should be the case, and that there was this intimacy. You can account for this friendly intercourse on the part of the defendant.....After all I do not consider that it is a breach of promise of a very serious character. It was all done in a very short time. It was not a long courtship and a disappointment of a life that may occur where engagements are long postponed and then broken. If he made an engagement, he broke it promptly, but you could not find any damages against him if there was no contract. It must be- found to have been absolutely made between the parties, with the understanding that there was an engagement of marriage. If you find that to be the fact then comes the question of damages. [If plaintiff has lost any money, if she has lost the pleasures and comforts that go with a relationship of that kind; if she has lost tlie advantages of maintenance — because when a man takes a wife he has to take the responsibility as well as the fun — he must furnish the means for her support; the law imposes that upon the relationship and she would be entitled to a support; and if you find that he was in shape to furnish that, you take that into consideration and the law permits evidence to be offered as to the extent of a man’s ability, that is, to indicate the character of the home and home comforts that his moans will furnish to her as his wife, of which she may be deprived in the future by the breach.] 0 If he has nothing, the damages are less of course, because the contract, if performed, would not furnish much money, and the defendant is of that age that unless he had money at the time, you may assume that a man of the age of sixty-eight can do no more by his own labor than to maintain himself. [If he has money, and he has undertaken to get rid of it to avoid responsibility, then you ought not to allow that; you ought to let the lawyers hunt it up, if it is concealed in that way, and whether or not the defendant is old, he has taken upon himself that he has the capacity to perform the duties of a husband, because he has married since.] 7 Whether that was done for the purpose of getting a home on his part or not, is a matter for your consideration. I think all these cases can be trusted to twelve intelligent and capable men, under the evidence, to do what is right and proper in the matter. The jury rendered a verdict in favor of the plaintiff for $600. Thereupon the defendant filed a motion for a new trial and in arrest of judgment, assigning, inter alia, as reasons in support thereof, that the verdict was against the weight of and unwarranted by the evidence, and that the court erred in overruling the defendant’s motion for a compulsory nonsuit, because the plaintiff had failed to prove a legal contract of marriage and a breach thereof. After argument, the motion was overruled by the court without opinion filed,10 and judgment was entered on the verdict, whereupon the defendant took this appeal, assigning, inter alia, for error: 1, 3. The overruling of defendant’s offers.1 3 5. The refusal of the motion for nonsuit.5 6, 7. The parts of the charge embraced in [ ] 6 7 10. The refusal of the motion for new trial and in arrest of judgment.10
131 Pa. 55Commonwealth v. McNaugher (1890)
APPEAL BY THE COMMONWEALTH EBOM THE COUBT OE QUABTEB SESSIONS OE ALLEGHENY COUNTY. j No. 80 October Term 1889, Sup. Ct.; court below, No. 782 September Term 1888, Q. S. At September Sessions, 1888, of the court below, the grand jury returned as a true bill an indictment charging Joseph Mc-Naugber and Samuel McNaugher with unlawfully and injuriously erecting and maintaining a certain wooden building and fence upon a public highway in the city of Allegheny, known as Federal lane, to the common nuisance of all citizens of tbe commonwealth going, etc., along said highway. The defendants pleaded severally not guilty, and issue was duly joined. At the trial on February 1, 1889, the following facts were shown: Under the provisions of the act of September 11, 1787, 2 Sm. L. 414, a tract of land called “ the Reserve Tract opposite Pittsburgh,” now embraced within the city of Allegheny, was surveyed and laid out as a town in lots, with streets, lanes and alleys. The act declared that these streets, lanes and alleys should be common highways forever. Among the highways so laid out was one called Federal lane, running north, and terminating at the northern boundary of the Reserve Tract. The commonwealth by various patents conveyed all the lots abutting on this lane, describing them in the patents as bounded thereby. For about one third of its length, at its northern end, Federal lane has never been graded so as to prepare it for travel. The public have been using a roadway deflecting from the line of the lane and running .nearly parallel with it. The defendants are the owners of land fronting on that part of Federal lane which has not been graded, and for many years they and their predecessors in the title have maintained a barn, and a fence inclosing the same, upon and across it. There was no evidence that the portion of the lane thus obstructed was ever traveled. At the conclusion of the testimony the court, Collier, J., charged the jury as follows: [The defendants are indicted for maintaining a nuisance, in having buildings upon a public highway. This highway was laid out, defined and made a public highway by virtue of an act of the legislature, and the only question in the case is, whether the defendants, if you believe they are upon the highway as designated by the drafts given in evidence by the commonwealth, can be convicted of maintaining a nuisance, if the .road is not used by the public at all. That is the only question in the case; whether the defendants would be guilty of maintaining a nuisance if there was no use made of that part of the road,.which is laid out on paper, and in the act of assembly, but not on the ground; whether, there being no use of it by the public, foot passengers or anybody else, they are amenable to the criminal law. My own opinion (and I have so decided heretofore), is, that it is not a criminal offence, however it may be as to the civil remedy; for the essence of a nuisance in a case like this is the interference with the travel of the public.] 3 [If you find there is no travel there; that the road is never used in any way, either by foot passengers or otherwise, I instruct you that the defendants would not be guilty of the offence charged in the indictment. If you find that to be the case, you return a verdict for the defendants; but if you find there is any evidence that it was used by persons as a road, or any part of it, the defendants would be guilty.] 4..... The commonwealth has asked me to charge you: 1. Federal lane, in Allegheny, as established and laid out by the act of 1787, and the survey for the Reserve Tract opposite Pittsburgh, was a public highway, and under the evidence is a public highway to-day. Answer: That is affirmed. It is a public highway, although not laid out on the grounds. 2. If the jury believe that the defendants occupied or obstructed any part of the state road, Federal lane, Allegheny, as laid out by the state under the act of 1787, and the survey, they would be guilty as indicted. Answer: This is refused, and a bill of exceptions sealed for the commonwealth. Unless there was a road or path, something traveled by the public, the defendants cannot be convicted of obstructing the public highway, for there is no public highway to obstruct.1 3. In the case of a street laid out by the state, it is not necessary that the same be accepted or used by the public, before the person may bo guilty of a nuisance, who may obstruct the same. Answer: That is refused. It is necessary that it be used to some extent, however small.8 Mr. Ferguson: I would ask your honor to charge, that inasmuch as it appears that the ground in question is a part of an entire street, extending from Allegheny river, to the northern line of the Reserve Tract, known by the name of Federal street or lane, in the plan of the Reserve Tract, the fact that a very considerable portion of it has been actually adopted for the public use, and traveled, and is so used, is sufficient to make it a nuisance for any person to obstruct any portion not yet used. Answer: That is for the jury. Gentlemen, you will take that into consideration in finding your verdict.5 The jury returned a verdict of not guilty, but that the defendants should pay the costs, and the court passed judgment accordingly. Thereupon the commonwealth took this appeal, assigning for error: 1, 2. The answers to the commonwealth’s points.1 8 8, 4. The parts of the charge embraced in [ ] 3 4 5. The answer to the commonwealth’s verbal request.5
131 Pa. 62Schlag v. Jones (1890)
APPEALS BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY. Nos. 95-98 October Term 1889, Sup. Ct.; court below, Nos. 392 to 395 April Term 1888, C. P. No 2. On March 14, 1888, J. Henry Schlag, Thomas Weithause, Charles R. Weitersliausen and the township of Shaler severally brought actions of trespass against Alban Y. Jones and Charles E. Jones to recover damages for the alleged obstruction by the defendants of a certain natural water-course. The defendants pleaded in each case not guilty. The four cases were tried together on March 26,1889, and at the conclusion of the testimony the plaintiff in each case took a nonsuit as to Charles E. Jones. The facts shown by the testimony were in substance as follows : In 1870, Charles F. Klopfer and others purchased from William Sample a tract of land in Shaler township, Allegheny county, adjoining the borough of Millvale. Through this tract ran a toll road known as the Evergreen Hamlet plankroad. To the west of that road lay a stream of considerable size, called Girty’s run. Crossing the plankroad and emptying into Girty’s run, was a small stream which drained a considerable extent of land, roughly estimated at from 100 to 150 acres in extent. Many years before, a dam had been built across Girty’s run, some distance above the land purchased, and a race, connecting it with a saw mill and a grist mill, constructed. For the greater part of its length the race lay along the eastern edge of the plankroad. It was constructed at a lower level than the small stream mentioned, and, at the point where it intersected the latter, the water of the stream was carried over it by means of a bridge or aqueduct. In 1871 Klopfer and others laid off the land purchased by them from Sample into lots, streets and alleys. They had a plot of it made and put on record. The only water-course shown by the plot was Girty’s run, and the Evergreen Hamlet plankroad was adopted as one of the principal streets. On July 1, 1872, seven of the lots in said plan fronting on the west side of the Evergreen road and numbered from 262 to 268 respectively, were purchased by Martin Pfiester. These lots were so laid out that the small stream which crossed the road ran from it into lot No. 263, thence diagonally across the front part of lot 264 and thence westward upon lot 265, in the direction of Girty’s run. In 1873 Pfiester built along his front on the Evergreen road, and about ten feet bach from it, a solid row of seven brick houses, occupying thus his entire frontage. He also made a fill in front of his property and extending to the middle of the Evergreen road, and graded the rear of his lots, so that all surface signs of the water-course which had run through the lots were obliterated. At the same time, the bridge or aqueduct on the opposite side of the road, which had carried the water of the small stream across the mill race, was torn away, letting the water run into the race. For some years prior to this, the race had been abandoned, unused, and was dry, the dam on Girty’s run having been cut. On the opposite side of the road from the Pfiester houses were some lots bought by one Seibert. He also filled up his side of the road, built over the water-course, and turned the water into Gray’s alley, by which it thereafter ran into the mill race. Charles R. Weitershausen, Thomas Weithause and J. Henry Schlag all purchased from Klopfer lots fronting on the east side of the Evergreen road. Weitershausen bought his in 1871 and built on it in 1875 or 1876. Schlag bought in 1871 and built in 1878. Weithause bought and built hr 1882. The buildings erected on these lots were all located along or near to the line of the old mill race. They were situated further down the street than the Pfiester houses, and were not upon ground that had been drained by the water-course which Pfiester and Seibert had stopped up. The only way in which they were affected thereby was, that in consequence of the turning of the water into the old mill-race, in connection with a gradual filling up of the race that had taken place, and the raising of the grade of the Evergreen road, the water in times of heavy rains percolated into the cellars. At such times water from the race also ran over and injured certain public roads occasioning expense to the township in connection with their repair. In 1874, Martin Pfiester borrowed 113,000 from Charles R. Fendrick, securing the loan by a mortgage upon his seven lots. About the same date Fendrick transferred the mortgage to Isaac Jones, father of the defendant A. Y. Jones. Under this mortgage a part of the property was sold by the sheriff in 1876 to Isaac Jones, other portions of it having been previously released from the lierf of the mortgage. Isaac Jones died in 1878, and in 1882, in a partition of his estate, A. Y. Jones became invested with the entire title to two of the houses built by Pfiester, located on lot 264 and parts of lots 268 and 265. He testified that he had no knowledge of the former existence of the water-course upon the ground occupied by his houses until in 1887, shortly before the bringing of these suits, when he was notified by Mr. H. I. Riley, as attorney for the plaintiffs, to open it up. At the conclusion of the testimony, the court, Ewing, P. J., charged the jury in part as follows: The court is requested by the defendant to charge the jury [inter alia] : 1. That under all the evidence the plaintiffs cannot recover. Answer: This point is refused.1 4. If the jury find, from the evidence, that the defendant acquired title to the property as improved by Pfiester, without any knowledge of the water-course or any signs of it on the ground, by which he should have known of its existence, and that he has only maintained the property as he received it, so far as the water-course is concerned, then the defendant took his title free from any burthen of such water-course and easement, and cannot be held liable in this action. Answer: The fourth point is refused. While from the uncontradicted testimony we are of the opinion that there were and are marks on the ground, above and below his lots, from which the defendant, had he examined, could and should have known that an ancient water-course had been obstructed by the buildings he purchased, yet we are of the opinion that even if the traces of this water-course had been obliterated beyond his lots, he took the property subject to the natural right or servitude of the flow of water over it in the natural channel.8 5. That the plaintiffs, W. H. Weitershausen, Thomas Weithause and C. R. Weitershausen, and J. J. H. Schlag and Pfies■ter, all purchased from Klopfer town lots, laid out in his plan of a town, in evidence, and were all thereby affected with the knowledge that no water-course, as here alleged, appeared upon the plan or affected the location of the lots, but that, on the contrary, said water-course was appropriated by the town lots in the plan, which were thereby offered for sale and purchased for the ordinary uses and improvements such as Pfiester made of his lots, and no one purchasing in the said plan can complain and maintain suit for such use of Pfiester’s property as here alleged. Answer: The fifth point is. refused. If this water-course was the natural channel for several springs, rising on and outside the Sample farm plán of lots, and above and beyond the Sample farm, and had been the natural, ancient and necessary-outlet for the springs and drainage of a valley a mile, or a mile and a half in length, and draining land to the extent of 150 acres or more, and that it had a well defined channel with constant flow of water therein, such that to carry it safely in high water, reasonably to be expected from time to time, would require a pipe of three feet in diameter, as testified to by plaintiff’s witnesses, the stream was such a one as defendant and his grantors had no right to dam up and throw it on to the other lots in the plan, where it did not naturally run, although the plan of lots did not show the stream or mark its channel.4 6. In no aspect of the case do the several plaintiffs, any one or all, show that their land was drained or directly affected hy the said water-course, so as to give them an easement therein, and thereby a right to its maintenance ; but, on the contrary, show that they are only affected by drainage of water, backed up and running in front of their properties, through or in place of an old millrace, artificially built and maintained on or in front of their properties, and that they built with full knowledge and, in the existing condition of things, without complaint; wherefore they cannot recover in this action. Answer: The sixth point is refused, except as answered in the general charge. The plaintiffs do not complain., of obstructions to the drainage of water from these lots, but of water wrongfully thrown on their lots from obstruction in the channel of a stream of water, which otherwise would not affect •them.5 7. The township and other plaintiffs are each and all estopped from maintaining any claims for damages here, by their silence and acquiescence under which the defendant has acquired title, and remained ignorant of their alleged causes of complaint, until about the time of the bringing of these suits. Answer: This point is refused.6 10. The evidence clearly proves that there has been no apparent water-course, or any evidence of any, upon the land of A. Y. Jones since 1873 or 1874, and that he acquired title in 1882, and never knew of this claim or of the fact of such watercourse, until shortly before these suits, when he only learned of these claims thereof, of the evidence of which he only learned upon this trial, and in such case he is not liable in these actions. Answer: • Refused.3 12. That the alleged notice given A. Y. Jones by Mr. Riley was, under the circumstances as shown by the evidence in this case, not such notice as imposed any duty upon said Jones, so as to render him liable in these- cases. Answer: Refused. Taking the testimony of Mr. Riley and Mr. Jones, both or either, the notice was sufficient.8 This suit was originally brought against C. E. Jones and A. Y. Jones. It seems that Mr. C. E. Jones got lot No. 267 and a part of No. 266. Mr. A. Y. Jones got lot 264, with 8 feet of 263 and 7 feet 10 inches of 265, making 39 feet 10 inches fronting on the plankroad, and on that were two brick houses. According to the testimony, this water-course never ran over those lots of C. E. Jones; therefore Mr. C. E. Jones is not in any way responsible for the maintenance of this alleged obstruction and he is eliminated from the case. After the testimony was all in, the plaintiffs conceded that they had no case against C. E. Jones and took a nonsuit as to him. You are, therefore, to consider now the case of A. Y. Jones alone, who owns this 39 féet 10 inches, and it is alleged that his houses are over the ancient bed of this stream that came down from the general direction of Gray’s alley. There is uncontradicted proof that Mr. Pfiester did build over the bed of this run, and proof that he raised the ground so in front of his houses that this run could not pass down where it had before. There is no direct evidence of who tore away this bridge across the race, which was then dry or had been dry before. One of the witnesses says that when they began to dig the cellars for the Pfiester houses, the bridge was torn away by somebody, and that let the water down into the race. The plaintiffs claim, that this building over the water-course had turned the water away from where it usually ran, along the side of the old millrace, and damaged their property. Now, if this were open country property, and the question were between the owners of the land above and Mr. Pfiester, who built these houses, there would be no difficulty about it. The general rule is this: An ancient water-course or spring cannot be dammed up and kept from flowing in its ordinary channel; the owner of the lower land must submit to the flow of water that nature would throw upon it ordinarily, whether it be surface water or a spring. Especially can he not stop a water-course of any size. In the city that rule is modified from the necessity of the case. When a piece of property is laid out in small building lots in a city or town, the general rule is that each owner must grade his own-property so as to keep the water away from the lower property, and the owner of lower property may keep the water from flowing upon it. That refers to ordinary flowage, or to some small spring that has no definite channel over the lower property. We find no case that precisely covers the case before us. However, I do not understand the modification of the general rule to apply to a stream of any considerable size, with a well-defined channel and with water in any considerable quantity flowing in it constantly, and that will flow in it at ordinary seasons of the year. It clearly would not apply to Girty’s run, because that is too large a stream. There is some difference in the testimony in regard to the character of this stream. The witnesses, without exception, I believe, say that they never knew this stream to be dry, and that it ha,d a well-defined channel. They differ in regard to the amount of water in the dry part of the summer. One, or perhaps two witnesses, said that at the very lowest they had ever seen it, it would be as much as an ordinary hydrant would discharge at full flow. Others say it would take two or three -hydrants to discharge as much as it did at a low stage. A witness who says he examined the flow on last Saturday, and you will bear in- mind that it has been rather a dry season, says that it would require a six-inch pipe to carry the water in it. The witnesses vary a little in regard to the amount that would be carried in the spring and in the fall, or in what they would call wet seasons. To constitute a stream of water such as we are of the opinion the owner of a lot or lots in a town plan cannot close up, without the consent of others, it is. not necessary that there should be a flow of water at all times, in the very driest seasons. “ A water-course,” says a learned authority, “consists of bed, banks and water. The water need not flow continually, and there" are many water-courses which are sometimes dry. There is a distinction to be taken in the law between a regularly flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water which in times of freshet or melting ice or snow descend from the hills and inundate the country. To maintain a right to a water-course or brook, it must be made to appear that the water usually flows in a certain direction and by a regular channel, with banks or sides. It need not be shown' to flow continually, and it may at times be dry, but it must have a well-defined and substantial existence.” The witnesses differ in describing the extent of the valley. The lowest estimate, I think, is half a mile; another a mile, and Mr. Cooper, who is accustomed to measurements and ought to be accustomed to make estimates, as he is an experienced engineer, estimates it at a mile and a half in length; that the water rises a mile and a half above and drains a valley, he says, with pretty steep hillsides, and would have an extent of 150 acres. He says the channel that went to this plan of lots, was a well-defined one. Below the Evergreen hamlet road, he says it was in places eight and possibly ten feet wide; other places, narrower. Some of the witnesses speak of it as from four to six feet wide. Some of them put it as deep as four feet; others say it was shallow in places. Now, if this was a stream having a well-defined channel with banks going down to Girty’s run, and being the outlet for springs arising above and beyond this plan of lots, and draining an extent of country three quarters of a mile, a mile, or a mile and a half long, containing 150 acres, then we say to you that it was such a stream as Mr. Pfiester could not dam up and stop and throw out of the channel where it-was accustomed to run, upon other property holders. Ordinary surface drainage he could throw in a little different channel or in little different quantities from what it had been. When a plan of lots is laid out and streets made, it is not necessary that every inequality of surface shall be preserved in order to let the water run just where it had been running. The streets are the natural and ordinary place for small seepage or flow of a spring to run, and not across lots; but we think that if this stream be of the size and character described by the plaintiffs’ witnesses, as we have recited to you, then it has passed beyond the kind of a stream that either lot-owners are bound to allow to be thrown upon their property, or the public upon the streets. The owners of the lots upon which it runs are bound to take care of it. It is admitted that this row of seven brick houses built by Mr. Pfiester were somewhere over the ancient bed of this stream, though the witnesses differ considerably as to where it is; in fact, testimony could' be taken that would throw the entire row outside of this stream, and it is only the property that is over the ancient bed of the stream that is responsible. If you find affirmatively the stream to have been of the character described by plaintiffs’ witnesses, and that the houses that Mr. Jones has owned and controlled since 1882 were over the ancient bed of the stream, and you will have to find those facts affirmatively or else you would find for the defendant, then you come to other questions. . Mr. A. Y. Jones got the property in 1882. He says that he did not know that there was any stream passed over it; and there is no reason to doubt his word in regard to that; he does not seem to have given very much attention to it personally. If the testimony is believed as to the plain condition of the stream both above and below his lot, that there was an evident channel, we think a man of ordinary judgment and knowledge, if he had been looking, would have seen that there was a stream there; whether under his house or not, is a question for the jury, not the court. To find for the plaintiffs in this case you must find that one of Mr. A. Y. Jones’s houses is over the ancient bed of this stream and blocks it up.' We have already said in answer to a point of defendant’s counsel that we do not think it necessary in this case that he should have seen or known it. [Even if all the marks had been ob-1 iterated from the’ plankroad down to Girty’s run, we tbink, if the character of the stream was such as the witnesses describe, that until a longer time has elapsed and more acts been done than have been shown to have been done by others, the plaintiffs are not estopped from claiming that the stream should keep its original bed and not be thrown upon them.] 7 Under all the circumstances of this case we are of the opinion that ho was not responsible for this until he had notice that his property was improperly obstructing this ancient bed. We have further said, in answer to one of defendant’s points, that if you believe either Mr. Riley’s testimony in regard to that, or Mr. Jones’, and they do not greatly disagree, and especially if you take them both together, Mr. Jones had sufficient notice before the bringing of this suit to at least do something towards remedying it; he does not appear to have done anything, but stands on his rights and says he is not bound to do anything. Now, taking this view of it, the damages to the plaintiffs are necessarily very small compared to what some of them seemed to think they would be. We did not know, during the progress of the case, where the testimony was going to lead us, or we would have excluded a good deal of it. All the improvements that were made on any of- this property were made before Mr. Jones had notice. Some of them were made before he owned it, and of course he is not responsible for that. Even Mr. Weitershausen’s drain or sewer in front was made long before Mr. Jones had any notice of this; and while it is possible that Mr. Weithause may have suffered five dollars a month decrease in the rental value of his property from this water being in front of it, I think the much more obvious reason for the decrease in rents is the fact given in evidence this morning that the mill of Graff, Bennett & Co. was idle, the workmen having nothing to do, or going away. But, giving a reasonable time for Mr. Jones to do something after he had notice, if there was any actual decrease in rents from that cause, they would be entitled to recover that. If you find that this water was improperly thrown upon plaintiffs’ property, or either of them, they would be entitled to nominal damages, some trifling sum, even if there was no proof of any considerable pecuniary damage. The question here is very much more important as to the right than it is to the ámount of damages. The jury rendered a verdict in favor of the township of Shaler for 6-| cents, and a verdict for $20 in favor of each of the other plaintiffs.' Judgments having been entered upon the Verdicts, the defendant took these appeals, assigning for error: ■1-6. The answers to defendant’s points-.1 to 6 7. The part of the charge embraced in [ ] ? 8. The answer to defendant’s twelfth point.8
131 Pa. 77Langdon v. Chartiers Tp. (1890)
1 OF ALLEGHENY COUNTY. No. 99 October Term 1889, Sup. Ct.; court below, No. 139 March Term 1888, C. P. No. 1. On December 27,1887, Joseph Langdon brought trespass against the township of Chartiers, in Allegheny county, and Abraham Clinton, to recover damages for personal injuries sustained by the plaintiff, as it was alleged, in consequence of negligence on the part of the defendants. The .defendants’ plea was not guilty.
131 Pa. 86Allegheny V. R. v. Dickey (1890)
1 OF ALLEGHENY COUNTY. No. 126½ October Term 1889, Sup. Ct.; court below, No. 466 March Term 1886, C. P. No. 1. On February 4, 1886, the Allegheny Valley Railroad Company, by John Scott and W. H. Barnes, receivers, brought ejectment against C. C. Dickey and James Verner for certain land in the borough of Verona. The defendants pleaded not guilty.
131 Pa. 100Oil Well Supply Co. v. Exchange N. Bank (1890)
2 OE ALLEGHENY COUNTY. No. 154 October Term 1889, Sup. Ct.; court below, No. 82 April Term 1888, C. P. No. 2.
131 Pa. 109Wilkinsburg Bor. v. Home for Aged Women (1890)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY. No. 164 October Term 1889, Sup. Ct.; court below, No. 400 July Term 1889, C. P. No. 2. On June 11, 1889, an amicable action of scire facias upon a municipal claim filed to No. 556 January Term 1889, by the borough of Wilkinsburg, plaintiff, against the Home for Aged Protestant Women, defendant, was entered in the court below, in pursuance of an agreement filed stating the following case for the opinion of the court: The borough of Wilkinsburg was incorporated on the-day of October, 1887, under the general borough laws of the state. The Home for Aged Protestant Women was incorporated by act of general assembly, approved March 25, 1871, P. L. 452, the last section of which is as follows: “ Section 4. All the estates and property of the corporation hereby created shall be free from taxation.” The defendant is the owner of certain real estate situate within the limits of said borough, plaintiff, bounded and described as follows: . . . . containing about five acres. The footwalk adjoining said land on Coal street was in such a state of decay that it was dangerous to the life and limbs of persons passing over the same, and it was necessary, for the safety of pedestrians passing along the said street, that a new footwalk be substituted; and accordingly the plaintiff, by resolution duly passed by its council, September 4, 1888, required the defendant to construct and lay a new footwalk along and in front of its property on Coal street, in the place occupied by the said old walk, in accordance with the ordinances and general regulations of the said plaintiff, of which said resolution the said defendant had due notice. The said defendant neglected and refused to lay and construct a footwalk as required by the resolution and notice of said plaintiff, whereupon the said plaintiff duly advertised for proposals for the construction of said footwalk, and received a number of bids for the said walk, and, after consideration of the same, the lowest bidder was allotted the work; said lowest bid being for the sum of $291. Said footwalk was constructed by said lowest bidder, as required by the ordinances and general regulations of said plaintiff, and in accordance with the resolution and notice aforesaid. Within the time required by law, the plaintiff filed its claim against said described real estate to recover the value of said work and labor and the material used in the construction of said footwalk, together with twenty per centum advance thereon. The Home for Aged Protestant Women, defendant, was founded, endowed and incorporated, and is maintained by public and private charity, for the purpose of providing a home free of charge for aged Protestant women of this community over sixty years of age who may be without near relatives and without the means of supporting themselves. It is under the supervision of the State Board of Charities. The land above described, against which it is sought to enforce the claim for the construction of the footwalk, was given to the institution for the purposes thereof by James Kelly, now deceased. The buildings, originally erected thereon by the defendant, in the year 1871, at a cost of about $25,000, were paid for out of money donated for that purpose; a large part of it was bequeathed by James M’Auley, and about $8,000 were the proceeds of a public bazaar, held in old City Hall in 1870. The premises and grounds are occupied solely for the purposes of the corporation, as a home for the inmates and a place of meeting for the managers. The said grounds are annexed to the institution and are necessary for the occupancy and enjoyment of the same, and no profit or revenue is derived from any part thereof. The institution is supported by public and private charity, annual subscriptions and occasional donations, and the interest on the endowment fund, which is formed of bequests made from time to time. The whole of the income of the defendant corporation is applied to charitable purposes in the support and maintenance of the home, in the payment of the wages of the employees necessary in caring for the inmates, and in payment of the funeral expenses of those who die. Each applicant for admission,- on being received as an inmate, pays, when practicable, a fee of $200. The payment of these fees has been established for the purpose of having, to a certain extent, a guarantee of the respectability and good behavior of the inmates, and that the latter may not feel themselves to be paupers. The rules of the board of trustees provide that this payment may be remitted in proper cases. The fees, in the aggregate, bear a very insignificant ratio to the expenses of the institution. The average number per annum who have been supported, cared for and nursed, free of charge, as inmates of the home, during the past ten years, is fiftyrthree. The average yearly expenditure during the past ten years, for the maintenance and support of the inmates and current expenses of the institution, has been $10,000. One tenth or one twelfth of this annual sum has been paid from admission fees, and the remainder from public and private contributions and the interest on the endowment fund. The corporation has no capital stock and no member or manager thereof receives any salary or compensation for her services, or derives any pecuniary profit or advantage therefrom. Now, therefore, if the court shall be of opinion that under . the defendant’s charter, the laws of this commonwealth and the facts set forth in the case stated, the law is with the plaintiff, and the said claim is a lien against said premises, then judgment to be entered for the plaintiff for the sum of $291, with legal interest from December 10, 1888, together with twenty per centum advance thereon; but if not, then judgment to be entered for the defendant; the costs to follow the judgment, and either party to have the right to sue out a writ of error therein. The court after argument entered judgment upon the case stated for the plaintiff, White, J., filing the following opinion: ' Under the borough act of 1851, the burgess and council may require property owners to keep the footwalk or pavement in front of their property, in good1 and safe condition for foot passengers, and in default, after notice, the borough may cause it to be done, and collect the amount of expense, with twenty per cent penalty, from the owner. While this police regulation is based on the taxing power, it is in no sense a tax. It is altogether different from an assessment for opening or paving streets, or construction of sewers, etc. The footwalk in front of defendant’s property, by the case stated, “ was in such a state of decay, that it was dangerous to the life and limbs of persons passing over the same, and it was necessary for the safety of pedestrians passing along the said street, that a new footwalk be substituted.” In pursuance of the general borough ordinance, notice was given the defendants, requiring them to construct a new footwalk, which they neglected to do, and the borough then caused it to be constructed, this suit being for the amount of expense and penalty. The - fourth section of the charter of defendants, act of March 25, 1871, says: “ All the estates and properties of the corporation hereby created, shall be free from taxation.” No doubt, this section exempts the property from all taxes proper, and also from municipal assessments of a general character, which stand on the footing of taxes. But under the powers given in the act to boroughs, they have right to require property holders to keep the footwalks in front of their property in a safe condition for passing pedestrians. This is among the enumerated police powers of the borough. This footwalk was not in such condition ; it was “dangerous to the life and limbs of persons passing over it.” After notice and demand to repair it, and neglect or refusal so to do, the borough, in pursuance of express authority given in the act, constructed the footwalk, and now seeks to recover the amount, with the penalty also expressly authorized by the act. We think this does not come within the letter or spirit of the exemption clause in defendant’s charter, and they are liable. The power to pave a footwalk and charge the owner, includes the power to re-pave when it becomes necessary: Smith v. Kingston Bor., 120 Pa. 857. And now, June 29, 1889, after argument on the case stated, and consideration thereof, the court is of opinion that the law is with plaintiff and judgment is entered for plaintiff in the sum of $291, with interest thereon from December 10, 1888, and 20 per cent advance thereon. Thereupon the defendant took this appeal, specifying that the court erred: 1-2. Ip entering judgment for the plaintiff on the case stated. 8. In not entering judgment thereon for the defendant.
131 Pa. 118Commonwealth v. Miller (1890)
1 OE ALLEGHENY COUNTY. No. 165 October Term 1889, Sup. Ct.; court below, No. 108 June Term 1889, C. P. No. 1.
131 Pa. 125Hart v. H. C. Frick Coke Co. (1890)
2 OF ALLEGHENY COUNTY. No. 170 October Term 1889, Sup. Ct.; court below, No. 29 October Term 1888, C. P. No. 2. On July 10, 1888, John Hart brought trespass against tbe H. C. Frick Coke Company, to recover for personal injuries alleged to have been received in consequence of the negligence of the defendant. Issue.
131 Pa. 137Allegheny City v. McCaffrey (1890)
APPEAL BY DEFENDANT FROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY. No. 155 October Term 1889, Snp. Ct.; court below, No. 20 July Term 1889, Allegheny City M. L. D., C. P. No. 2. On April 5, 1889, the city of Allegheny issued a scire facias snr a municipal claim filed against a certain lot in the Second ward owned by Charlotte McCaffrey, for the sum of $8.58, for assessments for benefits for the opening of Federal street extension from Morris street to Perrysville plank road, under an ordinance of date October 14, 1886, enacted under the provisions of the act of April 1,1870, P. L. 751, relative to streets in the city of Allegheny. The defendant filed an affidavit of defence to the writ, averring for herself and other defendants against whom similar liens were filed, inter alia, as follows : 3. The amount for which this lien is filed, is a sum assessed as benefits to defendants’ lots, to pay damages assessed in favor of Joseph and Samuel McNaugher and others, for the taking by plaintiff of a public street, laid out by the commonwealth in the Reserve Tract opposite Pittsburgh, in the original plan thereof, and which public street had been fenced in by said McNaughers and cithers, but without any right on their part.* 4. The ordinance mentioned in the lien in this case, of October 14, 1886, is not sufficient to authorize this lien, nor any proceedings taken under it. 5. That in pursuance of an act of the general assembly, of the commonwealth of Pennsylvania, approved the 11th day of September, A. D. 1787, 2 Sm. L. 414, the Reserve Tract opposite Pittsburgh, (now embraced within the limits of the city of Allegheny,) was laid out and surveyed as a town in lots, with streets, lanes and alleys, among which was a street called Federal lane, which extended from what is now known as North avenue, in said city of Allegheny, to the northern line of said Reserve Tract, having a width of eighty feet in a straight line; and a copy of the plan of said Reserve Tract, as laid out and surveyed under the act of assembly aforesaid, showing the exact location of said Federal lane, is recorded in the recorder’s office of Allegheny county, in a separate plan book, reference to which being had, will sufficiently appear. That by the terms of said act of assembly of September 11, 1787, the streets, alleys and lanes in said Reserve Tract, as shown in the plan recorded as aforesaid, were declared to be common highways forever. That the commonwealth of Pennsylvania, by its various patents, conveyed to divers persons, their heirs and assigns, out-lots Nos. 147 to 178, both inclusive, being all of the out-lots abutting on either side of said Federal lane in the plan aforesaid, and in all of said conveyance recognized said Federal lane, and described the out-lots so conveyed, as bounded, inter alia, by said Federal lane; and by said conveyances, the grantees therein, their heirs and assigns, for a valuable consideration, acquired the right to have said Federal lane kept open forever as á common highway and as appurtenant to said out-lots, as well as all other lots in the plan aforesaid. That as defendant is advised and believes, no attempt has ever been made by any act of assembly, or ordinance of the city of Allegheny, to vacate said Federal lane or any part thereof; but on the contrary said Federal lane, as laid out on said plan of the said Reserve Tract, has been accepted by said city of Allegheny, as a public street, and directed to be opened as such by ordinances duly passed and approved, among which are, an ordinance entitled, “ An Ordinance authorizing the widening and opening of Federal lane, from R. Duncan’s south line to the intersecting of Perrysville avenue,” approved March 26, 1874, and an ordinance entitled, “An Ordinance authorizing the opening of Federal street extension, from present pavement to Perrysville plank road,” approved June 27,1881, which latter ordinance has never been repealed, but still remains in full force. That defendants, by virtue of divers conveyances, duly executed, have respectively become the owners, in fee-simple, of portions of the out-lots aforesaid, fronting on the west side of Federal lane, and by virtue of said conveyances, hold and own the following described lots of ground:..... That on October 14, 1886, an ordinance entitled “ An Ordinance authorizing the opening and widening of Federal street extension, from Morris street to Perrysville plank road,” was passed by the councils of said city of Allegheny, a copy of which, marked exhibit B, is hereto attached, and under said ordinance said city of Allegheny has attempted, and is now attempting to open a street 50 feet in width, part of which is within the limits of said Federal lane, and part of which lies to the westward thereof, upon the properties of defendants, and part of which lies to the eastward thereof, making a narrow winding road, Cor which no necessity exists, and which practically obstructs and destroys said Federal lane, as established by the commonwealth of Pennsylvania, as aforesaid; and defendants aver that said ordinance does not confer or establish any right in said city of Allegheny, to locate any such street upon the properties of defendants, as attempted under said ordinance. That the viewers appointed under the ordinance of October 14, 1886, aforesaid, in their report to the councils of said city of Allegheny, and the said councils in approving the said report, wholly disregarded the fact of the existence of Federal lane, and assessed damages in favor of Joseph and Samuel McNaugher and others, as though they were the absolute owners of that portion of the said Federal lane, abutting upon the property of said Joseph and Samuel McNaugher and others, although, in fact, none of their property was taken under said ordinance; and charged defendants with benefits for the opening and widening of the street, under said ordinance, in utter disregard of the fact that they were already entitled to the benefits of said Federal lane; and assessed, as benefits to defendants, the damages awarded to said McNaughers and others for said taking of portions of said Federal lane; and the amounts so assessed as benefits to defendants, for damages to said McNaughers and others, for the taking said Federal lane, in which said McNaughers and others had no right, title or interest, are the amounts for which these liens are filed. And affiant says that defendants are not liable to pay such benefits so assessed, as the ground taken was and is public ground, and such benefits-so assessed, and for which these liens are filed, are for the taking said ground only, and not for grading or any other cause. 6. And affiant says further, that she is informed and believes, and expects to be able to prove on the trial of this case, that the city engineer of plaintiff and said McNaughers, unlawfully and improperly combined and conspired together, for the purpose of adding to said McNaughers’ property, the said public street known as Federal lane, and attempting to give title to the same; and for this purpose wrongfully and unjustly procured the viewers appointed under said ordinance of October 14, 1886, to assess as damages in favor of said McNaughers and against defendants, the value of the portion of said Federal lane taken under said ordinance, when said city engineer and said McNaughers well knew at the time of procuring said false and fraudulent assessment, that the ground taken was portion of a public street, to wit, said Federal lane, for which no damages could be assessed or paid. And affiant says further that she is informed and believes, and expects to be able to prove on the trial of this case, that the whole proceedings, as to the putting through this street, called Federal street extension, in said ordinance of October 14,1886, were conceived in fraud and iniquity, and gotten up for the express purpose of enriching and benefiting said Samuel and Joseph McNaugher, at the expense of defendants, and that it' is highly proper that the whole matter should be ventilated by a jury trial. A rule was taken for judgment for want of a sufficient affidavit of defence, the grounds assigned being, 1. The confirmation of the report of viewers by councils and the court is conclusive, and the matters alleged in the affidavit of defence cannot be set up as an answer to the scire facias. 2. Defendant took a,n appeal from the action of the board of viewers, and after a jury trial resulting in a judgment in favor of the city, the report of the board of viewers was confirmed absolutely by the Court of Quarter Sessions. On June 22, 1889, the court, White, J., filed the following opinion: “ All the matters set up in the affidavit of defence were proper questions to be heard and decided on an appeal from the report of viewers and approval by the city councils. And it appears on the argument that an appeal was taken, and after a juiy trial, the decision was in favor of the city. These questions cannot be raised again by way of defence to the scire facias. The rule is, therefore, made absolute and judgment entered for plaintiff.” Thereupon the defendant took this" appeal, assigning as error the opinion of the court below as quoted, and the order entering judgment for the plaintiff for want of a sufficient affidavit of defence.
131 Pa. 143Collins v. Chartiers V. Gas Co. (1890)
APPEALS BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. Nos. 177, 204 October Term 1889, Sup. Ct.; court below, Nos. 157, 509 April Term 1888, C. P. No. 2. To No. 157 April Term 1888, of the court below, Nannie R. Collins brought trespass against the Chartiers Valley Gas Company to recover damages for an injury to a water well owned by the plaintiff, alleged to have been occasioned by the negligence of the defendant. To No. 509 of the same term Mary L. Osbon brought a similar action against the same defendant to recover for a like injury. The two cases having been put at issue, they were tried together on May 6, 1889, when the following facts were shown: Each of the plaintiffs is the owner of a small lot of ground, with a house thereon, situate in the borough of Glenfield in Allegheny county. On each of said lots is a well used to supply water for domestic uses on the premises. On June 7,1887, the defendant, being engaged in the business of producing and supplying natural gas, entered into a written contract with C. J. Hummel, by which Hummel engaged to drill a well for natural gas upon a “ location ” in the borough of Glenfield, distant about 100 feet from the water'well of one of the plaintiffs, and about 125 feet from that of the other. The contract provided that Hummel should encase said gas well with eight and one fourth inch casing to the depth of 700 feet, and deep enough to shut off all fresh water, and below that with six inch casing to shut off any water or caving rock found just above the gas rock, and should warrant the well absolutely free from water and do all work to the satisfaction of the defendant’s superintendent ; all tools, and gas and Avater connections, to be furnished by Hummel, and all casing required for the well to be furnished by the defendant. The contract contained also the following clause: “ All springs to be fully protected from damage, and drillings to be carried from the wells to such point as will do least damage to property possible.” The well thus contracted for was begun sometime in June and finished in August or September 1887. At the depth of about 70 feet it passed through the vein of fresh water which supplied the plaintiffs’ wells, and at about 700 feet below the surface it passed through a large quantity of salt water, which, rising and mingling with the fresh water, ruined the plaintiffs’ wells, and rendered the water therein utterly unfit for domestic uses. There was evidence tending to establish that the defendant ought to have anticipated that its well would encounter this salt water and that it would thus affect neighboring water wells, unless precautions were taken to prevent the two kinds of water from commingling; that by the use of well known appliances this commingling could have been prevented, and this had often been done, though it was not customary and had been done only in eases where the operator desired to guard against injuring water wells on his own property; and witnesses estimated the cost of one method of effecting this object at about $50, and the cost of another method at from $200 to $250. After the completion of the gas well, the defendant took it off the contractor’s hands and remained in possession of it down until the time of the trial. Agents of the defendant were notified of the injurious effect of the salt water upon the plaintiffs’ wells, and promised to remedy the injury, but did not do so. At the close of the testimony, the court, Ewing, P. J., charged the jury: Counsel on each side have presented to us numerous points of law to be answered, which we will not undertake to answer in detail. The view we take of the main point in the case is such that it is unnecessary. The plaintiffs are each the owner of a small lot of ground, with a house thereon, in the borough of Glenfield, situated down the Ohio river, on the Ft. Wayne railroad, about seven miles below the city. The defendant company undertook to and did drill wells for natural gas on property in the borough, and in the immediate vicinity of these lots. There were several wells, as I understand, but the well in question was begun about the middle of June, 188T, was finished, perhaps, in the latter part of August of that year, and was put down in all a distance of about 1,600 feet. From the description of the witnesses, the village of Glenfield is on the river and railroad, and its territory runs up on the hill for some distance. There is a high hill fronting the river, and Killbuck run puts into the river at this point, running up one side of the property, or through the borough, rather, and a very high steep hillside comes down from the top for a considerable distance. The larger portion of the houses in the thickly built up portion of the town, is on comparatively level land lying between the foot of this river hill and the river. The soil or surface of the land there, is composed of gravel and coarse sand, with, of course, better soil on top, but it is tbe accumulation of gravel from ages past, no doubt partly from the river and partly from this Killbuck run, and through this sand and gravel water permeates easily. That gravel is on a bed of slaty rock, varying from 2 to 20 feet below the surface. Digging down through the surface soil and into this gravel, they go down some distance to the slaty rock which would appear to hold the water, and they get water in large quantities at any place that they may dig. The gravel is no doubt permeated with water, and wells are obtained for the use of the houses built there; and the plaintiffs each had her .well of what has been testified to as good, clear, cold water, and it is claimed that it was very pui'e. The well of the defendant company was started 125 to 150 feet, or 100 to 150 feet away from one or the other of these places, on the hillside at an elevation of about 75 feet above this gravel bed below. The defendants drilled down through the rock and soil there, and at the distance of what Mr. Hummel, the driller of the well, says was about 90 feet below the surface, some of the drillers saying about 70 feet, but apparently about the level at which the water stands in this gravel below, there, in a coarse sand rock they struck fresh water of the kind ordinarily expected. That fresh water no doubt has flowed on down through that sandy rock into this gravel below, and the jury might fairly find that that was the source, the principal supply of water into the gravel bed of the .bottom land below on which the houses are built. The drillers of the gas well drilled on down through this rock, and down in another rock below, a distance of about 140 feet, say 50 or 60 feet below where this gravel bed is, on lower land, they got another supply of fine, fresh water. Of course that did not disturb, and did not affect the flow of water in the wells in the gravel bed below, but they went on down about 720 feet, when they struck, not far apart in two places, salt water that rose up to meet its level in some distant basin, rose up and mixed with the fresh water. It seems to have been very salty, and in a few days thereafter it began to tell on the water in the wells of the plaintiffs, and it rapidly got worse, until in a short time it seems they were unable to use the water for drinking, cooking, washing, for watering plants or for any other purpose, utterly destroying it, and it has continued so since and the plaintiffs seek to recover damages for this injury to their wells respectively. Now it is claimed by the defendant that because they had a contract with Mr. Hummel to drill this well for a certain price, an independent contract, that they are not responsible. We do not so interpret the contract. On the other hand, taking all the testimony, if believed, the contract was to do that which paid no attention to the probability of injuring these wells; and in fact, if I understand the contract, it rather excludes from it, unless it would be otherwise ordered by the defendant company, the idea of protecting against this flow of salt water into the water below. The testimony offered by the defendant, again, shows that the ordinary way of drilling is to case or shut off the salt water from the well, for the benefit merely of the well owner, the well which is being drilled. It seems that it is not an uncommon thing, and Mr. Hummel testified that he has frequently done it, to shut off the salt water from the fresh water, so as to protect the wells or water on the tract where the well is being drilled. But the custom appears to be to pay no attention to the rights or injuries of people owning property anywhere in the neighborhood. It does not strike me that that custom has much to do with the question of right in this case ; the fact that people neglect their duty would not affect the liability of the defendant here. There is evidence from which the jury might fairly find that the destruction of the well of the plaintiffs was brought about by the salt water coming up and mixing with the fresh water; I have to assume that they would so find. I think there is evidence from which the jury fairly could find, that the defendant company -when the well was drilled knew, or ought to have known, if they had exercised any reasonable judgment, or investigated, or paid attention to it, that the boring of this well in the way it was done, without shutting off the salt water from the fresh water, would almost inevitably ruin these and other wells in the immediate vicinity. And I think there is evidence from which the jury could fairly find, and probably would find, that the defendant could, with the outlay of a small amount of money, 50 to 250 dollars, have shut off the salt water from the fresh water so that it could not have done any injury; [but as I understand the decisions in our own state and in some others, the courts lay down a rule that governs here, that although it may be a hardship in this case, yet the general rule is that where a party, as the defendant company, drills, mines, works on his own property, in the way this was done, he is not bound to pay any attention to what the effect may be on hidden streams beneath, what the effect may be on his neighbor; he has a right to use his own property in boring in this way, or mining or drilling, and unless he is actuated by malice, he would not be liable for the consequences.] 3 If this were an open stream, I think they would be clearly liable; if this were a stream of water open on the surface, and they could with reasonable outlay and care have .prevented the poisoning of the stream, I think they would be liable, but there is no such stream; [there is nothing but the percolation of water through the rock where the defendant company bored down; and we feel constrained under the decisions that have been shown us, and as we understand the law, to say to you that the plaintiff cannot recover in this action, and that your verdict, from the evidence, should be for the defendant;] 4 and I state this at length in the way of explanation to the jury, in order' that when this case goes to the Supreme Court, they may be able to see the ground on which I have so instructed you. The jury accordingly returned verdicts in favor of the defendant. Rules for a new trial having been granted, the court, Ewing, P. J., filed the following opinion: These cases were tried together, and the facts are substantially the same in each. The vital question in the cases is a close one; it is a very interesting question and has become a very important one, the developments and experience of the last twenty-five years having produced a state of facts different from that on which similar questions have heretofore been ruled. In the oral charge to the jury, the stenographer’s report of which is on file, the court stated the evidence, assuming that the jury would find the facts in favor of the plaintiffs, were the questions submitted to them. There is but little doubt that the jury would have found that the pollution of th.e wells of the plaintiffs respectively, was caused by the defendant drilling its gas well on its own property, close to the wells of the plaintiffs, abcmt 100 and 125 feet away; that the pollution of the water came from permitting the salt water that rose from a depth of about 700 feet, to mix with the veins of fresh, near the surface, about 70 feet, which supplied plaintiffs’ wells; that at the time of contracting for the drilling of this well, the defendant knew, or should have known, that the plaintiffs’ wells would almost necessarily be ruined by the drilling of its well, unless precautions should be taken to shut off the salt water from the fresh water; and that by well known means, in general use, where the driller of an oil- or gas-well desires to preserve the fresh water on his own property, this salt water could certainly have been shut off from contaminating the fresh water, and this at the moderate expense of $50 to $75, by one method, and about $250 by the permanent method of double casing below the fresh water, and without detriment to the gas well. The evidence would have justified these findings. On this state of facts, following what we understand to be a strong line of decided cases, the court instructed the jury to find for the defendant. The facts raise a conflict between the two maxims, “ sic utere tuo ut alienum non laidas,” and “eujus est solum ejus est usque ad coelum et ad inferos.” If the former maxim is to prevail, the right is with the plaintiffs; if the latter, it is with the defendant. If this were the case of a running stream in a well known channel on the surface, the defendant would be liable, because its pollution of the visible stream would not be necessary to the enjoyment of its own property, as it is easily preventable, and it would be bound to take the necessary precautions to prevent the pollution. But a different rule prevails in regard to underground hidden veins of water, or percolations through the rock or soil. The general rule as to such water is, that the owner of the land may use his land for any lawful purpose; and in agriculture, or by mining, or in any other lawful way, take for his own use, or divert the underground water without liability to his neighbor therefor. In Acton v. Blundell, 12 M. & W. 324, decided in 1843, a leading case, the distinction is drawn between a surface stream of water, and an underground vein or percolation that may be cut off by a well dug, or a mine opened on land of an adjoining owner, the one being known and the other unknown and uncertain. It is there declared that “ the owner of the soil owns all that lies beneath the surface ; ” that the land immediately below is his property whether it be solid rock, or porous ground, or venous earth, or part sod and part water; he may dig therein and apply all that is therein found to his own purposes at his free will and pleasure; and that if in the exercise of such right he intercepts or draws off the water collected from underground springs in his neighbor’s well, this inconvenience to his neighbor falls within the description of damnum absque injuria. The reason given is, that the course of underground streams of water is so uncertain that until the well is sunk no one can tell whether or not there will be any effect on the flow of water. In Chessmoro v. Richards, 5 H. & N. 982, decided in 1859, Acton v. Blundell was followed, though Lord WensLEYDALE, in a concurring opinion, lays down a rule that if the work done by the owner of the land, though otherwise lawful, were done for the purpose of injuring another, the law would forbid it. The rule in Acton v. Blundell has been generally followed in this country, without any qualifications. The leading case in Pennsylvania is Wheatley v. Baugh, 25 Pa. 528; opinion by Judge Lewis, than which there is no abler discussion of the question in either English or American authorities. Acton v. Blundell is followed. In Wheatley v. Baugh, a spring which supplied plaintiff’s tannery'was dried up by pumping the water out of the copper mines of defendant,' which pumping of water was necessary to the working of the mine. Judge Lewis says : “ In conducting extensive mining operations, it is in general impossible to preserve the flow of subterranean waters through the interstices in which they have usually passed, and many springs must be necessarily destroyed in order that the proprietors of valuable minerals may enjoy their own. The public interest is greatly promoted by protecting this right, and it is just that the imperfect rights and lesser advantage should give place to that which is perfect, and infinitely the most beneficial to individuals and the community generally.” The learned judge further says: “We have treated the spring as depending upon percolations alone at the point where the mining operations were carried oh, because the evidence does not show that any distinct water-course leading to it has been cut off or diverted. If this should be shown, and it should also appear that it could have been preserved without material detriment to the owner of the land through which it flowed, the .destruction of it might be attributed to malice or negligence. The beneficent Being who created the earth and gave man dominion over it imposed on him the duty of doing to others as he would that they should do to him. Upon this high moral obligation rests the legal one which requires every one so to use his own privileges as not to injure the rights of others. In all the relations of social life, it is to the interest and duty of each to respect the privileges of others. The law which requires this, acts with a reasonable reference to the public convenience and general good, and it is not betrayed into narrow strictness subversive of common sense, nor into extravagant looseness, which would destroy private rights. In determining what is reasonable, the circumstances of each case must be considered, and the jury under the instructions of the court must in general decide the question.” This last quotation, from the opinion of Judge Lewis, is a strong presentation of the plaintiffs’ position in the present case. It is, however, but an obiter dictum. Haldeman v. Bruckhart, 45 Pa. 515, is similar to Wheatley v. Baugh, and was decided in the same way. Judge Strong, however, in delivering the opinion of the court, makes the same reservation as was made in Wheatley v. Baugh, as to the defendant, being liable in case he acted maliciously or negligently. We do not consider the case of Penna. Coal Co. v. Sander-son, 118 Pa. 126, cited by defendant’s counsel, as governing this case. In that case, had it appeared that the coal company, by a reasonable expenditure in their operations, could have fully enjoyed their property without fouling the stream that flowed down over Sanderson’s property, the decision of the case would have been different. That case marked a distinct progress in the law of this state. Undoubtedly, the general rule of law, before and since is, that the owner of land through which a well defined stream of water flows, cannot foul the stream to the detriment of a lower proprietor without being liable; and this because the owner of the land can usually enjoy and use his own property for all reasonable purposes, without damaging his neighbor. But in the Sanderson case, the property of the coal company could not be used without fouling the water; the great public interests and the private rights of mining could not be sacrificed to preserve the inferior right and interest of the lower proprietor. The reason for the general rule failed, and the rule was not followed. In McLord’s Executors v. The Carbon Iron Mfg. Co., 38 N. J. Eq. 452, it is held that, “ for water that gets into complainant’s mine, from the defendant’s mine, by gravitation or percolation, or by any other natural means, it is clear that the defendant is not in any way responsible.” In Brown v. Hius, 25 Conn. 583, it is held that in such case, if the defendant’s acts are done in prosecuting a lawful business on his own land, his motives are immaterial. In Frazier v. Brown, 12 Ohio 294, the questions are fully discussed and the conclusion is thus stated: “ The law recognizes no correlative rights in respect to underground waters, percolating, oozing, or filtrating through the earth, and this mainly on the grounds of public policy: 1. Because the existence, origin, movement, and course of such waters, and the causes which govern and direct their movements are so secret, occult and concealed, that an attempt to administer any set of legal rules in respect to them, would be involved in hopeless uncertainty, and therefore would be practically impossible; 2. Because any such recognition of correlative rights would interfere to the material detriment of the public, with drainage and agriculture, mining, the construction of highways and railroads, with sanitary regulations, building, and general progress of improvement in works of embellishment and utility.” This is a fair summing up of the conclusion of law reached in the English and American cases, with the reasons given for the conclusion, when any reason is given. Some authorities draw a distinction between the abstraction of water in such situations, and the pollution thereof. In Hodkinson v. Ennor, 4 B. & S. 229, Mellon, J., says: “ There is a great distinction between abstracting water before it becomes the property of plaintiff, and sending polluted water into water to which he is entitled;” but this was where the defendant had, by washings of lead-producing earth on his own land, allowed the poisoned water to percolate through the rocks to a flowing stream. We can see good ground for the distinction, but the weight of authority seems to be against it, especially when the pollution comes from a lawful operation of mining, whereby water naturally rises in the new channel that may be opened. While in our opinion the equities are with the plaintiffs, the adjudicated law is decidedly against them. There is, however, a view of the case arising from the new circumstances, which the plaintiffs are entitled to have considered. The drilling of deep wells for producing petroleum and natural gas has become a very important branch of industry in Pennsylvania. The districts in which these products are found, and especially that of the Pittsburgh coal field, are of wonderfully uniform geological formation. Experience has shown that fresh water supplying springs and wells is almost certainly found comparatively near the surface, while almost as certainly salt water is found at greater depth, and usually when struck, if uncontrolled will rise and mix with the fresh water, polluting the supply of fresh water for considerable distances around. Since the decisions in Acton v. Blundell, and Wheatley v. Baugh, probably more deep wells have been drilled in Western Pennsylvania, than had been previously dug in the entire earth in all time. And that which was then held to be necessarily unknown and merely speculative as to the flow of water underground, has been by experience in such cases as this reduced almost to a certainty. Until recently most of this drilling of wells was in sparsely settled districts; latterly, much of it is close to or within the limits of towns. Following the precedent of the Penna. Coal Co. v. Sanderson, the Supreme Court, when the reason for the old rule applicable to such cases as these has disappeared, may disregard the precedents. We feel bound to follow the adjudicated cases. Counsel for defendant contends that the Chartiers Natural Gas Co. having given out the contract for boring this well to C. J. Hummel, they are not responsible. We are of the opinion that this point is not well taken. 1. It is not the kind of case or damage against which an owner can protect himself by giving out a contract. 2. An inspection of the whole contract shows that it was not intended to include any protection against damages suffered by other parties than the owner of the land on which the well was drilled. It excludes it, unless specially ordered. Although it does provide for casing off all the salt water for the benefit of the well drilled, it makes no provision for separating the salt water from the fresh. 8. The defendant took possession of and maintains the well, keeping up the damages to plaintiffs’ wells, to the present time, after full notice of its effects,.and with ability to remedy it. New trials will be refused. Judgments having been entered on the verdicts, the plaintiffs thereupon took these appeals, assigning for error : 3, 4. The parts of the charge embraced in [ ] 3 4
131 Pa. 161Mason v. Mason (1890)
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 185 October Term 1889, Sup. Ct.; court below, No. 326 September Term 1888, C. P. No. 1. On July 14, 1888, Elizabeth B. Mason filed her libel against her husband, John Mason, averring that the defendant had offered such indignities to the person of the petitioner as to render hex* condition intolerable and her life burdensome, and thereby forced her to withdraw from his house and family; praying for a divorce. A subpoena and an alias subpoena awarded tbereon were returned non est inventus, and service upon the defendant was made by publication. The court thereupon appointed Mr. Joseph M. Sivearingen commissioner to take testimony respecting the allegations contained in the libel. At the hearing before tbe commissioners, on March 27,1889. the defendant not appearing, the plaintiff was called simply to prove the fact of her marriage to the defendant, which took place on February 21, 1886. Several other witnesses were called at this and subsequent bearings, whose testimony was substantially to the following effect: Shortly after their marriage the plaintiff and defendant resided for a few weeks with the parents of the former. the remainder of the time they lived together as husband and wife, they were keeping house in various localities in the city of Pittsburgh and its vicinity. The defendant was addicted to drunkenness to such an extent that his occupation was very much interrupted thereby and very irregularly followed. He did not provide properly for his wife’s maintenance, and during a large part of the time she would have been entirely without food or decent clothing, had these not been supplied by her parents. The defendant was not regular -about staying at home, and would frequently be absent for a week at a time. With great frequency he would come home drunk, scold his wife and treat her rudely, and call her a whore and other vile names, in the presence of other people, charging her with going with other men and with having procured an abortion upon herself. He frequently made threats of violence against her, saying that he would shoot her, blow her brains out the first chance he had, cut out her bloody heart, or cut her throat with a razor. On one occasion, while scolding his wife in a fit of drunkenness, he pulled a razor out of his pocket and said he would cut her into mince-meat, when her father interfered and ordered him to put the razor away. On another occasion he became angry and pushed her off the porch of the house in which they were living. He often threatened to leave the plaintiff, and one day threw all the furniture and carpets out into the street and tried to sell them. In the evening of the same day he came home intoxicated, burst open the door of the house and raised a disturbance such that his wife sent for the police and had him arrested. The next day her father came and took her and her goods to his home. The testimony having been- filed in conrt by the commissioner, the case came up regularly for hearing upon the argument list, and on July 20, 1889, the court in banc entered a decree refusing to grant the libellant’s petition, Slagle J, filing the following opinion : The application for divorce in this case is upon the ground of indignities to the person. The proof shows no actual violence, though the witnesses testify to threats upon one or two occasions. The testimony does show that the husband was frequently drunk, and when in that condition made grave charges against her, and used vile and abusive language. In May v. May, 62 Pa. 206, the court says: “No single act of indignity to the person is sufficient for a divorce. There must be such a course of conduct or continued treatment as renders the wife’s condition intolerable or life burdensome. It need not necessarily endanger life, but such as would render it too humiliating and burdensome to bear.” We do not think the facts of this case bring it within the proper application of the law. Thereupon the libellant took this appeal, specifying that the court erred “ in refusing a decree of divorce.”
131 Pa. 165Berberich v. Ebach (1890)
APPEAL BY PLAINTIEE EROM THE COURT OE COMMON PLEAS , NO. 1 OE ALLEGHENY COUNTY. No 192 October Term 1889, Sup. Cfc.; court below, No. 452 June Term 1888, C. P. No. 1. ■ On April 30,1889, a summons was served in an action of trespass brought by Alexander Berberich against John Ebach and Sophia, his wife, Theodore Striebecher and Albert Striebecher, to recover damages for injuries to the plaintiff’s dwelling house, alleged to have been occasioned by the negligence of the defendants. Issue. At the trial on November 2, 1888, the following facts were shown: The plaintiff is the owner of a leasehold estate in a lot of ground at No. 149 Ohio street in Allegheny city, on which there was a dwelling house. In January, 1888, Mrs. Sophia Ebach, who is the owner of a leasehold in an adjoining lot, commenced the erection thereon of a three story brick building. The erection of Mrs. Ebach’s building was let by herself and her husband, upon a written contract, to Albert and Theodore Striebecher, who carry on business as builders, under the name of Striebecher & Bro. By the terms of this contract the builders had entire charge of the work, which was to be done in accordance with plans and specifications prepared by George W. Ott, architect, and to be subject to his approval, and they were required to protect adjoining properties. Striebecher & Bro., as the general contractors, sublet various portions of the work. Among the sub-contracts was one with Ammond Grow for the stone-work, and one for the brick-work with John Becker. The carpenter work was done by the general contractors themselves. Their contract with Grow consisted of the following written proposition and a verbal acceptance thereof: Allegheny, December 20,1887. M. Striebecher & Brother : I promise that I will do the mason and stone cutting work for Mr. Ebach’s house, according to plan and specifications, for the sum of four hundred and ninety-eight dollars ($498). Ammond Grow. Two oi three days after Grow had completed the foundation walls, it was found that the wall on the side of the house away from the plaintiff’s property had bulged inward, toward the cellar, from three to six inches. The wall was built in freezing weather. After it was built, an open space on the outside of it-was filled in with earth and rubbish. Milder weather followed, and the sun shining on the inside face of the wall softened the mortar, so that the pressure of the earth, which had been filled in behind it, caused the bulging to take place. This filling in was done by workmen in the employ of Striebecher & Bro., but one of the defendants testified that they were working at the time under Grow and that he commanded them. Albert Striebecher’s attention being called to the condition of the wall, he conferred with Grow about it. Grow told Striebecher to have the filled-in earth removed, and he, Grow, would get the wall back into place. The earth was accordingly-removed and braces put against the wall, and it came back into line. Testimony for the plaintiff tended to show that after having thus bulged and been pressed back into place, the wall was not a safe one to build on; while testimony for the defendants tended to show that when a wall is new,-and before the mortar has become fully set, such action will not injure it, and that this was the case with the wall in question. Ott, the architect, saw the bulged wall and knew what was done to remedy it. With his approval the first floor joists were laid upon it by Striebecher & Bro., and Becker-then, by their order, built on it the brick wall. The work of building proceeded regularly until the brick walls were completed to a height of about thirty-three feet, the joists for the first, second and third floors had been laid, and the building was about ready for the roof, when, on the night of April 5,1888, during a wind storm, the brick walls fell down upon the plaintiff’s house, crushing it in and entirely demolishing the larger part of it. The testimony tended to establish that the cause of the fall was weakness of the foundation wall, resulting from the bulging and pressing back before mentioned. Portions of the testimony will be found quoted in the opinion of the Supreme Court, infra. At the close of the testimony the court, Stowe, P. J., charged the jury in part as follows : There does not seem to be any dispute about one matter in this case; that is, that Mr. Ebach was the owner of this property and he employed an architect by the name of Ott to get up plans. There is no indication that he was not entirely competent, and you are bound to presume that he was a competent architect. He got up the plans and specifications for this building. Mr. Ebach had done all he was bound to do, all that any man is bound to do when he undertakes to put up a building,.....and, therefore, we say that, so far as the owner is concerned, there is nothing that would justify a verdict against him. Then we come to the parties who had the contract for this whole work, the Striebechers. They took the contract for the whole work, and were to build it according to certain plans and specifications, subject to the supervision of some one, who turns out to be Mr. Ott. They are carpenters and contractors. Of course, carpenters do not build brick walls nor stone walls, and the only way by which they could get that work done would be to employ some one who made it his business to do such work. They, with the knowledge at least of Ebach, had these contracts given out. I will say here, that it makes no difference whether Ebach knew it or not. They had the contract, and had the right to give out any portion they saw fit, if there was no restriction, as there was not, in this article of agreement. They employed Grow to do the stone-work, and Becker to do the brick-work..... It seems Striebecher gave out these contracts and that he had no further charge over that portion of the work, as we understand the testimony; and we put it to the jury in that way. He gave out the stone-rwork to Grow, who was to do it under the supervision of the architect. He had to do it apparently in accordance with the suggestions of the architect, at least so far as his testimony is concerned. But, at any rate, that was a matter, as we think now, that Mr. Striebecher had nothing to do with, no responsibility, I mean, arising out of it, in case it fell down. The same would apply to the brick wall. The house was built, stood there a while, and this storm came along. It does not seem to have been a very extraordinary storm. . . . . Probably the jury will think that so far as that is concerned, there is nothing to indicate that it was an extraordinary storm that did this mischief. It would show in that case, however, that from some cause or other, that wall was not properly built. If this strong wind — not one that would amount to what we call the act of God ordinarily — did, from some cause or other, bring down this wall, then we come back to the question, who is to blame for that? Certainly only the parties that were responsible for it; and if the view we take of the matter is law, the defendants, Striebeehers, were not responsible. Under their contract, they had no right to control the building of this wall, and there is no evidence to show that it was so manifestly and improperly built as to make it negligence on their part to go ahead and put the superstructure on. Then Grow, if his work was the cause of the accident, should be held responsible alone, and not the Striebechers, who had no control over it. If the jury come to that conclusion, and it seems to me the evidence is all one way upon that question, then the verdict ought to be for the defendants. They have not sued the right parties.....As it stands now, with the view I have on the subject, if the jury were charged in a general way and they found a verdict for the plaintiff, I do not see how, with my view of the law under the facts of this case, I could conscientiously let it stand..... The plaintiff’s counsel request the court to charge : 1. It being admitted on the part of defendants that Striebecher Bros, had the contract for the building which fell down, and that the building fell down while yet unfinished and on the contractors’ hands, this is prima facie evidence of negligence in the construction of the building, and the builders would be liable for the damages caused to plaintiff by the fall. Answer: Affirmed. 2. If Striebecher & Bro., made a sub-contract with Ammond Grow for the building of the stone foundation walls, and Grow did the woik in a negligent and unskilful manner, so that a reasonably prudent man would apprehend danger of the wall giving way under the weight of the brick-work to be placed thereon, and the defendants, Striebecher & Bro., knew, that the work was negligently and improperly done, and .ought, as reasonably prudent men, to have anticipated that the wall would fall down under the weight of the structure to be placed thereon, but nevertheless took the wall off Grow’s hands, Striebecher Bros, will be liable, notwithstanding the terms of the contract between them and Grow. Answer: Refused, there being no sufficient evidence to base it on.1 3. If the foundation wall built by Grow was insufficient to sustain the weight of the structure placed thereon, either by reason, of its negligent construction in the first instance, or by-reason of its being bulged in by the earth thrown back of the wall, and then pressed back to its place, and such defect was known to the defendants, Striebecher & Bro., or could have been discovered by them by the exercise of reasonable care and prudence, and said defendants, notwithstanding the defect, erected or caused to be erected the brick wall which fell over and caused the damage to plaintiff, they will be liable for said damage. Answer: Refused, same as point 3.2 4. The fact that the fall of the building may have been produced by a storm will not constitute a defence, unless the storm was an extraordinary one, an unexpected visitation whose coming was not foreshadowed by the usual course of nature; and there is no sufficient evidence in this case that the storm was of that character, and therefore the defendants cannot avail themselves of that defence. Answer: Affirmed. Under what I have said you may take a verdict for the defendants.3 The jury rendered a verdict for the defendants. A motion for a new trial having been argued, the court, Stowe, P. J., on January 18, 1889, filed the following opinion: There is no sufficient evidence to show that the men who threw the dirt behind the wall were working under the control and direction of Striebecher at the time. The men were in his employ, it is true, but he says they did that work by the direction of Grow. His evidence is, “They were working under Grow» he commanded them,” and this is all the evidence we have oil the point. The evidence then fails to show that Striebecher had anything to do with the work that may be presumed to have caused-.the bulging out of the wall. Is there sufficient evidence' to go to the jury to show that Striebecher in erecting the brick wall upon the foundation as he knew it to be, or had reason to believe it to be, so far as safety is concerned, was guilty of negligence ? I still think the true rule was expressed by me in Lynch v. Chartiers V. Gas Co., which is in effect that one is responsible when the danger is manifest and such as was apparent. Here the work was all done under the supervision of a competent architect, whose duty it was to bring to bear proper knowledge and care. It is true this action will not protect the builders, Striebechers, if they are shown by the evidence to have been themselves guilty of negligence; but it is an important factor in the consideration of the question of fact, and if not prima facie evidence of no negligence, it is at least strong evidence in that direction, casting the burden of proof upon plaintiff to show such facts as will fairly satisfy the jury of actual noglience under the circumstances. In this I think the evidence entirely failed. I could not allow a verdict to stand based upon such finding of negligence by the Striebechers, and therefore must refuse a new trial. Judgment having been entered on the verdict, the plaintiff took this appeal, specifying that the court erred: 1, 2. In the answers to the plaintiff’s points.1 3 3. In directing a verdict for the defendants.3
131 Pa. 177Harbach v. Kurth (1890)
APPEAL BY PLA INTIFF EJROM THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 197 October Term 1889, Sup. Ct.; court below, No. 147 April Term 1888, C. P. No. 2. On February 6, 1888, a scire facias sur mortgage was issued by Charles Harbach, now for use of Jacob Harbach, against August Kurth, with notice to Louis Kremientate, Charles Kremientate and Charles Baer. Issue. At the trial on April 9, 1889, the plaintiff put in evidence a mortgage upon lots 1 and 2, in Shaler’s Plan on Coal Hill, executed by August Kurth to Charles Harbach, for $2,500, dated October 1, 1875, recorded November 17, 1875, payable in one year, reciting that it was to secure unpaid purchase money; with an assignment thereof to Jacob Harbach dated November 24,1875, entered on the margin of the mortgage as recorded. The plaintiff then rested. The defendant offered in evidence a mechanics’ lien filed by Frederick Raab, on September 6, 1875, to No. 20 October Term 1875, for $587.62, against “a two-story frame house containing eight rooms and erected upon two lots or pieces of ground situated in the Thirty-fifth ward, city of Pittsburgh, Allegheny county, Pa., bounded and described as follows: Lots numbered 1 and 2 in block two in Clarence Shaler’s plan of lots on Coal Hill in Union borough, bounded as follows: Beginning on the south side of Sherman street at its intersection with another street, forty feet wide; thence southwardly along Sherman street one hundred and twenty feet and four inches to lot No. 3; thence by the same, one hundred and seventy feet and six and three fourths inches to Well street; thence by said street seventy-three feet and nine inches to a forty foot street; thence by the same, north-westwardty one hundred and ninety-five feet and seven inches to the place of beginning: ” ■also a scire facias upon said lien to No. 2 January Term 1876, and judgment thereon on November 4, 1875, for $548.37 ; also a levari facias upon said judgment and a sale thereon of the property covered by the lien, on January 3, 1876, to G. L. Fisher, for $1,025, and sheriff’s deed to said Fisher for said lots 1 and 2, in Shaler’s Plan, acknowledged January 29,1876. The foregoing offer was objected to by the plaintiff for the following reasons: 1. Because the record does not show that any boundaries were defined or any curtilage set apart as necessary for the ordinary and useful purposes of the building, as required by the act of assembly under which the lien was filed. 2. Because the lien never extended to any more land than was necessary for the ordinary and useful purposes of such building, and did not extend to the amount of ground, described in the lien, upon which the building is alleged to be situated; and therefore did not extend to lot No. 2, or to any more ground than was necessary for the ordinary and useful purposes of the building. 8. The offer is incompetent and irrelevant. By the court: The second objection shows that your first one is too strong, but it is competent. Objections overruled; exception.1 After other testimony showing the appropriation of the proceeds of the sale of the property to prior liens, the defendant rested. The plaintiff in rebuttal, under objection and exception to the defendant, put in evidence the record of the mechanics’ lien, scire facias and levari facias above mentioned, for the purpose of showing simply that the curtilage of the building against which the lien was filed was not set apart, nor the boundaries thereof defined, as provided by the act of assembly under which the lien was filed. Calling Jacob Harbach, the plaintiff then offered to prove by the witness on the stand and others: 1. That the building against which the lien was filed is a two-story frame house, and,was situate in the corner of lot No. 1, fronting on Sherman street and the forty foot street mentioned in the description in the mechanics’ lien, now known as Grant street; that said building was twenty-four feet front on Sherman street, and about thirty-four feet deep, running along said forty foot street; that said building is built out even with or close up to Sherman street and said forty foot street, no ground intervening between said house and said streets; that the western corner or side of said house is fifty-six feet from the western line of lot No. 1, and fifty-six feet from the eastern line of lot No. 2, and that at the time of filing said lien there were fifty-six feet of vacant and unoccupied ground between the western side of said house and the western line of lot No. 1; that no portion of said house stood on lot No. 2, nor did it stand within fifty-six feet of it. 2. That the whole of the two lots, fronting together one hundred and twenty feet on Sherman street, was not necessary for the ordinary and useful purposes of the building against which the lien was filed. 3. That no portion of the lot No. 2, mentioned in the lien was necessary for the ordinary and useful purposes of said building. 4. That the plaintiff had no notice or knowledge of said scire facias or sale on said levari facias. Counsel for defendant object to plaintiff’s offer, because: 1. The judgment or lien of Frederick liaab was entered against Charles Harbach while still owner, and reduced to judgment prior to the assignment of Charles to Fred. Harbach, who has constructive notice thereof,, and, being in privity, is concluded thereby. 2. The act of assembly provides a method of procedure by which the rights of lien creditors may be adjusted as between thémselves, and that remedy is exclusive. 3. The sheriff’s sale was based upon a judgment regularly entered and valid upon its face, and operated to transfer the title to G. L. Fisher discharged of the lien of the mortgage in suit.' 4. The offers are all incompetent and irrelevant. By the court: Objection sustained; exception.3 At the close of the testimony the court, Ewing, P. J., charged the jury that the lien of the plaintiff’s mortgage had been divested by the sheriff’s sale upon the mechanics’ lien which existed when the mortgage was executed, and that their verdict should be for the defendant.3 0 The jury returned a verdict for the defendant, as directed; and judgment having been entered on the verdict, the plaintiff took this appeal, assigning for error: 1. The admission of defendant’s offer.1 2. The refusal of the plaintiff’s offer.3 3. The direction to find for the defendant.3
131 Pa. 184McNeal v. Pittsb. & W. Ry. Co. (1890)
APPEAL BY PLAINTIEE EBOM THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 199 October Term 1889, Sup. Ct.; court below, No. 427 June Term 1888, C. P. No. 1. ’ On May 4, 1888, service was accepted of a summons in an action of trespass brought by Alice McNeal against the Pittsburgh & Western Railway Company, to recover damages for the death of the plaintiff’s husband, charged to the negligence of the defendant company. At the trial on April 4,1889, before Slagle, J., Edward McNeal, a son of the deceased and of the plaintiff, testified that he was with his father when the accident occurred, and described the circumstances thereof. On cross-examination he was asked: Q. When you approached the crossing, did you see the section foreman there, who was engaged at work on the track? Objected to, as not cross-examination. By the court: Objection overruled.3 A. Yes, sir. Q. Did you see him wave at your father with his hand to signify to him to stop ? A. I saw him wave, but I did not know.what he was waving at;1 for us, or at the men. Alexander Moeser, called for the plaintiff, also testified as to the circumstances surrounding the accident. On cross-examination he was asked: Q. Ask him if he saw the section foreman waving at McNeal at that time. Objected to, as not cross-examination. By the court: Objection overruled.4 A. I saw him, but I don’t know whether it was for McNeal or for the engineer. Q. What did the section foreman do, when McNeal got up to the track ? A. When the wagon was on the track, he waved. Q. That is, the section foreman waved? A. Yes, sir. After other testimony showing the facts sufficiently appearing in the Opinion of Court below, post, the plaintiff rested, when, on motion of defendant’s attorneys, the court entered judgment of nonsuit, with leave, etc. A rule to show cause why the judgment of nonsuit should not be lifted, having been argued before the court in banc, on April 10, 1889, the following opinion was filed, Slagle, J.: This was an action by Alice McNeal, widow of Henry McNeal, to recover damages for the death of her husband caused by the alleged negligence of the defendant company. The decedent’s death was caused by an accident at a crossing of the railroad, about 1,000 feet above Witmer station. The road is the main outlet for a large extent of country, and, though some distance from the city, has considerable travel over it. The railroad crosses it at grade, and just below the crossing has a short curve around a hill which somewhat obstructs the view. A person near the track is not able to see more than 150 feet. The evidence showed that the train was running at express speed, about 30 miles an hour. Several witnesses testified that they heard a whistle below Witmer station, about 1,000 feet, but heard no whistle after passing that station. As to the negligence of the defendant company, this testimony should have been submitted to the jury, and therefore it may be assumed that there was negligence on part of the defendant. The testimony further showed that the deceased was driving a two-horse team, one of the horses being young. His son was with him in the wagon, and a Mr. Reis was driving immediately behind him. These both testified as to the facts substantially the same. At the distance of about 50 feet from the track they heard the whistle of the train, presumably below Witmer station, about 2,000 feet from the crossing. The deceased stopped and then drove on. As he drove toward the track, a foreman of a gang of workmen, who was standing near the track, motioned, whether to deceased or not, the witnesses would not say, but looking towards them. Just as the horses came to the track they saw the train, and the young horse became restive. Though they did not stop, it checked their speed. The son got out of the wagon to the rear, and the engine struck it about the forward wheel, killing Mr. McNeal. Reis remained where he first stopped. As tbe son of deceased and Mr. Reis heard the whistle, and deceased stopped immediately afterwards, it is a necessary presumption that deceased also heard the whistle and knew that a train was approaching. If he had remained there he would have been perfectly safe, and in any ordinary circumstance would have lost but a minute or two of time. He chose to drive on. Plaintiff’s counsel allege that he stopped again before going on the track. We do not so understand the evidence. He should have done so. If he did stop he should have also looked and listened. Looking, he could have seen about 150 feet; and listening, he could have heard the train a greater distance. According to his son, the horses saw the train just as they came to the track, and the engine struck them just as the horses were leaving the track upon the other side. If deceased was driving at an ordinary rate, it is evident that the train was sufficiently near to be heard and seen, if he had stopped before driving on the track, and looked and listened. This case seems to fall within the principles laid down in Marland v. Railroad Co., 123 Pa. 487, and the cases there referred to. The motion to take off the nonsuit is therefore refused. The plaintiff thereupon took this appeal specifying that the court erred, 1, 2. In entering the judgment of nonsuit, and discharging the rule to lift said judgment. 3, 4. In admitting defendant’s offers, 3, 4.
131 Pa. 189Reynolds v. Cridge (1890)
APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 203 October Term 1889, Sup. Ct.; court below, No. 292 June Term 1887, C. P. No. 1. On May 2,1887, Hannah Reynolds and William Walton, executors of Samuel Reynolds, deceased, brought case against Matthew Cridge. Issue. At the trial on April 25, 1889, testimony was introduced upon which it was claimed by the plaintiff: That in 1873 the defendant was president of the Lawrence-ville & Evergreen Passenger Railway Company, and loaned to it $7,000, receiving as collateral security therefor bonds of the company owned by certain stockholders to the amount of $6,250, and also bonds of the company to himself to the amount of $3,750, — in all $10,000; that in May, 1874, the railway was sold at judicial sale for $9,000, subject to the mortgage securing its bonds, and in the same year, Henry D. Leitz, the trustee in the mortgage and a son-in-law of Samuel Reynolds, the plaintiff’s testator, bought from the stockholders owning them the $6,250 of bonds pledged to the defendant and in his hands, of which purchase the defendant had notice ; that out of the proceeds of the judicial.sale of the railway, the defendant, in November, 1876, was awarded and paid $2,424.80, on account of his $7,000 loaned to the company; that after the judicial sale the company was reorganized as the Evergreen Passenger Railway Co., but the defendant had no connection with the new company until in 1879, when, Henry D. Leitz having died, the defendant was appointed by the Court of Common Pleas No. 1 his successor as the mortgage trustee; that in 1880 the road was much injured by a flood, and it required a large amount of money to repair and put it in order, one half of which was supplied by the defendant, he receiving in consideration therefor the one half of all the then stock, to wit, 250 shares; that in 1881, the then stockholders sold the entire concern to A. G. Hatry, for $80,000, delivering to the latter all its property and stock; that of this purchase money, the defendant received $15,000, and delivered to Hatry all the bonds he had, including the $6,250, owned by the plaintiff’s testator; that this conversion of the bonds, as alleged, was not discovered by the plaintiffs until 1887, when this suit was brought. In the defendant’s case, the defendant was called in his own behalf, when the following offers were made : Counsel for the defendant proposes to show by the witness that at No. 488 April Term 1877, an action was brought against the Lawrenceville & Evergreen Railway Co., on a contract- or’s claim, being a scire facias to enforce claim under the resolution of 3842; and that the witness being apprehensive that an execution upon that judgment would divest the lien of the bonds and mortgage in question here, being informed that Samuel Reynolds claimed an interest in those bonds, went to see Mr. Reynolds’ executors, in order that they might, with him, protect the securities as against this claim; that he was told that they considered the bonds of no account and that they would put no money up to protect them; and that after such action on the part of the executors the witness employed counsel to protect the securities against the claim, and paid the fees and finally paid the claim itself: this for the purpose, first, of establishing the right of the witness to a charge upon the securities for the amount of that expenditure, and secondly, for the purpose of showing an abandonment on the part of plaintiffs of any interest in the securities in question. Objected to, as incompetent and irrelevant. By the court: Objection sustained; exception.8 Counsel for defendant proposes to prove by the witness that in the year 1880, a flood having washed away the tracks, road bed, and appurtenances of the Lawrenceville & Evergreen Railway Co., the same was left in such condition as to be worth considerably less than the amount of the bonds and mortgage in question; and that the witness, for the preservation of the securities expended a large sum of money, to wit, the sum of about |5,500, in restoring the different portions of the road to their places and in rebuilding the road; this for the purpose of showing the amount by way of recoupment against any claim of the plaintiffs in this case; to be followed by evidence in support of this offer that any value the securities in question had, or the road had, at the time of the agreement of April 11, 1881, with Hatry, was' by reason of this expenditure of money. Objected to, as incompetent and irrelevant. By the court: Objection sustained; exception.3 At the close of the testimony, the court, Stowe, P. J., answered certain points presented as follows : The defendant requests the court to charge : . 2. That if the jury find that in December, 1874, Samuel Reynolds became the owner of the bonds in question, in this case, subject to the claim and interest of Matthew Cridge therein and thereon, and that during his lifetime he did not at any time tender or offer to pay the debt due Cridge, for which they were pledged, or give said Cridge any notice of his interest in said bonds, or assert in any way any interest or claim therein; and that after his death his executors never offered to pay said Cridge said debt, or demanded said bonds; and that 'after the washing away of the railway in 1880 they still made no tender to said Cridge of the debt due to him, theu the jury may presume an abandonment or relinquishment on the part of the plaintiffs and their testator of any interest in the bonds in question, and on that presumption find for the defendant. Answer: Refused.4 3. That the debt to Cridge for which the bonds in question were pledged became due and payable in 1874; and if the jury find that neither the plaintiffs nor their testator made any offer or attempt to redeem the pledge, during nearly seven years thereafter, then plaintiffs cannot recover. Answer: Refused.5 4. That the debt to Cridge, for which the bonds in question were pledged, became due and payable in 1874; and if the jury find that neither the plaintiffs nor their testator ever made any offer or attempt to redeem the pledge, and brought this suit, in 1887, without such offer or attempt to redeem, and without any demand for said bonds, then the plaintiffs cannot recover; they cannot escape the consequences of their own laches, because it now turns out that Cridge parted with the bonds in April, 1881. Answer: Refused.6 The jury returned a verdict in favor of the plaintiffs for $7,284.32. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this appeal specifying that the court erred, inter alia: 1. “In overruling defendant’s objection to the following offer of evidence on the part of the plaintiffs, to wit: Plaintiffs’ counsel offer exhibit No. 6 in evidence. Objected, to, as incompetent and irrelevant, the non-production of the original not being sufficiently accounted for. Objection overruled; bill sealed for defendant. E. H. Stowe, P. J., [Seal.] ” 2, 3. The refusal of defendant’s offers.8 8 4-6. The answers to defendant’s points.4 to 6
131 Pa. 195Masters v. Lauder (1890)
APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 206 October Term 1889, Sup. Ct.; court below, No. 181 September Term 1887, C. P. No. 1. On July 1, 1887, W. U. Masters and Edward C. Pope, late partners as Masters & Co., brought assumpsit against George Lauder, F. H. Oliphant and S. D. Oliphant, doing business as the Wampum Iron Company, Limited. Issue. At the trial on January 8, 1889, it appeared that the defendants on January 25, 1881, entered into articles for the purpose of forming a limited partnership association, under the act of June 2, 1874, P. L. 271. The capital was to be $20,000, payable in money; three fourths at the execution of the statement, and one fourth, four months from the date of execution This capital was divided into 200 shares; of which Lauder subscribed for 100, F. H. Oliphant for 60, and S. D. Oliphant for 40. At the date of the execution of the statement there was on deposit in bank to the credit of the company $14,900. S. D. Oliphant testified that $100 had been drawn out for the. use of the company. Shortly after the recording of the statement, the. company paid out from the capital the sum of $12,000 on account of the purchase money of certain property the title to which at first was not taken in the name of the association, and which was used in the business of the company. The plaintiffs adduced testimony to the effect that certain personal property had been bought for a lump sum, $5,000, and that it was not worth more than $8,600. The court, Stowe, P. J., charged the jury in part as follows: Now, the first question which arises is, whether the parties have paid in the amount represented in the statement as paid in. Under a decision of the Supreme Court, when parties represent that they have paid in a certain amount of money, that must be a fact. Here it is represented that they paid in $15,000, and that is the first question that comes before us. Did they pay in $15,000 ? Undoubtedly, under the testimony, $15,000 was paid in by these three parties, and the Supreme Court say that it does not make any difference who paid it in, whether paid in proportion to their subscriptions or not, so that it was paid in: [See Lauder v. Logan, 123 Pa. 34.] [Now, $15,000 obviouslywas paid in; but before the execution of the agreement, or at all events before it was recorded, some portion of it was withdrawn from the bank. It does not necessarily follow that it was not in the pocket of the treasurer, but that is perhaps a matter of inference for the jury. If there was nothing else in the case, we do not think that would be an important matter; because, we instruct you, if the money was actually paid in, with the honest intention of creating this partnership, and the parties .afterwards, as appears, executed a deed in due form and had it properly put upon record, carrying the firm into effect, it makes no difference that a small part of the money may have been withdrawn before the signing of the deed, if it was used for the purposes of the contemnlated firm and in good faith.] 4 That may be giving this act somewhat of a broader signification than its terms would warrant. It does not say anything about that; but, [it seems to me that if a firm have $15,000 or $20,000 (but it might be half a million), paid in by all the parties in interest, and some one of them, appointed treasurer, should draw out $1.50 to buy a blank book for a subscription list, half an hour or an hour before the execution of the papers, to therefore make all the parties interested liable as general partners is putting a very close construction on the act.] 5 It would amount to that, however, if we would tell you that if anything had been withdrawn previous to the execution of this paper, under any circumstances, it would operate as a forfeiture of their rights under this act of assembly. That we do not think would be a fair construction of the act. Of course we can only state to you what we think. Our superiors may think differently, and if they do, we always submit with the best grace we can to their instructions. That matter out of the way, then, assuming that the company was properly organized, we have another matter upon which much has been said and much testimony offered; and that is the claim that the amount of $5,000, which was to be paid in afterwards, was never paid in; that the property was purchased in the individual names of the partners, and while it is true that the use of it went into the firm, yet there was no formal conveyance of the property. The personal property, it is said, covered more than this $5,000, which indicates that it was at least valuable to that amount. The parties themselves testified, and it is not contradicted, that they considered it nominally worth a great deal more, some $12,000. The firm got the benefit of that; but it is alleged that, so far as the realty was concerned, it was in the names of these individuals, or as partners not described as members of this limited firm; that that was a fraud, in violation of this act of assembly and that by it they forfeited their rights. Now, a case might arise where such a state of facts would be a fraud. The evidence tends to show, however, that at the time this paper was executed, the title was taken and the mortgage given in the names of these gentlemen as individuals, because the vendor, the party who sold the property to them, would not take their obligations as limited partners. I think he was very sensible in that, because the limited partnership liability was probably not worth very much; it certainly was not so good as the individual liability. To secure this mortgage, which was held by a third party, they took the deed in their own names and gave obligations in their own names, but, according to the testimony, and there is no dispute about that, they always treated this as partnership property, except in the one case where Mr. Lauder sold a right-of-way to a railroad company. It appears, however, that he appropriated the proceeds to this bank that held the mortgage upon the property, which was a proper and legitimate disposition of the money, showing that he was not using it for his own personal benefit, and it left the title just where it was before, for the benefit of this company. [Then I say that, as there is no dispute about it, under the testimony, if you believe that the property was intended and held all this time for the benefit of the company or partnership, although not formally conveyed to them until after this suit was brought, still it is not such an act or state of affairs as would render these parties liable as general partners, but would be a sufficient, compliance with the act of assembly to protect them so far as this action is concerned.] 18 The jury returned a verdict in favor of the defendants. Judgment having been entered, the plaintiffs took this writ, assigning as error, inter alia: 4, 5,12. The portions of the charge embraced in [] 4 5 18
131 Pa. 199Estate of Grimm (1890)
APPEAL BY MARY GRIMM PROM THE ORPHANS’ COURT OE ALLEGHENY COUNTY. No. 208 October Term 1889, Sup.
131 Pa. 203Duffy v. Oliver Bros. (1890)
2 OF ALLEGHENY COUNTY. No. 209 October Term 1889, Sup. Ct.; court below, No. 489 April Term 1887, O. P. No. 2. On April 1,1887, a summons in case was served in an action brought by Patrick Duffy against Henry W. Oliver, Jr., David B. Oliver, James B. Oliver and John Phillips, partners under the firm name of Oliver Brothers & Phillips, to recover damages for personal injuries.
131 Pa. 205Yard v. Pittsb. & L. E. R. (1890)
131 Pa. 209Commonwealth v. Richards (1890)
APPEAL BY DEFENDANT FROM THE COURT OF QUARTER SESSIONS OF ALLEGHENY COUNTY. No. 217 October Term 1889, Sup. Cfc.; court below, No. 568 March Term 1889, Q. S. On May 10, 1889, there was filed in the court below a transcript of a proceeding before an alderman, wherein Thomas Richards, upon complaint of Emma Richards, was bound over to answer in said court a charge that on September 20,1887, he, the said Thomas Richards, did without any cause or provocation desert and abandon the said Emma Richards, his lawful wife, and since said date had failed and refused to provide anything toward her support and maintenance. At the hearing before the court, on May 11, 1889, the defendant admitted that he was the husband of the prosecutrix, that he had been living separate and apart from her since March 11, 1886, and that since that date he had contributed nothing toward her support and maintenance. He offered in evidence, however, the following deed of separation, executed by himself and his wife, under seal, and duly acknowledged before a justice of the peace, with a separate examination of the wife: “ This indenture, made the 11th day of March, 1886, between Thomas Richards, of the borough of New Brighton, county of Beaver, and state of Pennsylvania, of the first part, and Emma, his wife, of the second part. “Whereas divers disputes and unhappy differences have arisen between the said party of the first part and his said wife, for which reason they have consented and agreed to live separate and apart from each other during their natural lives; therefore, this indenture witnesseth, that the said party of the first part, in consideration of the premises and in pursuance thereof, doth hereby covenant, promise and agree to and with his said wife, that it shall and may be lawful for her, his said wife, at all times hereafter to live separate and apart from him; and that he shall and will allow and permit her to reside and be in such place and places, and in such family and families, and with such relations, friends, and other persons, and to follow and carry on such trade or business as she may from time to time choose or think fit to’ do, and he shall not nor will not at any time compel her to live with him, or molest, disturb or trouble her for living separate and apart from him, nor sue, molest or trouble any other person whomsoever for receiving, entertaining or harboring her; and that he will not without her consent visit her or knowingly enter any house or place where she shall dwell, reside or be, nor shall or will, at any time hereafter, claim or demand any of her money, jewels, plate, clothing, household goods, furniture or stock in trade which she now hath in her power, custody or possession, or shall hereafter procure, or which shall be devised or given to her, or that she may otherwise acquire, and that she shall and may enjoy and absolutely dispose of the same as if she were a feme sole and not married; and further that the said party of the first part shall and will well and truly pay, or cause to be paid unto her, his said wife, for and towards her better support and maintenance, the sum of fifty dollars in hand, and shall and will set over and transfer to her absolutely such of his household goods and furniture as she has or may select, valued at one hundred dollars, and four shares of stock of the Cooperative Foundry of Beaver Falls, Pennsylvania, of the par value of one hundred dollars per share, free and clear of all charges and deductions whatsoever, the receipt and payment of which said money and the transfer and delivery of such goods and stock is hereby acknowledged by the said Emma Richards at and before the sealing and delivery hereof. “ And, in consideration of the premises and of the grants and payments made to her, the said Emma Richards, by her said husband as above set forth, she does hereby remise, release, quit-claim and forever discharge the said Thomas Richards, his heirs and assigns, and his estate now owned by him, or which he may hereafter acquire, of and from all claims, shares or interest therein which she now has or may or might have by reason of her said marriage, and she further agrees and desires that her said husband may have the control and custody of their child, William Emmett, but in case the said Thomas Richards dies, then the said Emma Richards is to have the control and custody of him. “ In witness whereof ” etc. The paper-book of the appellee stated that it was in evidence that a short time before this proceeding was instituted, the defendant spent one night with his wife and arranged with her to live together again, and that she should go to St. Louis, Mo., where he would join her in a few days; that she went to St. Louis and remained for three or four weeks, and not hearing from her husband she returned to Allegheny City. Such evidence, however, was not in any way brought upon the record. On July 13,1889, the court pronounced sentence that the defendant pay the costs of prosecution, pay to the prosecutrix the sum of ¿10 per month until otherwise ordered, and give security for his compliance with the sentence,4 Magee, J., filing an opinion as follows: On the hearing in court it was admitted by the defendant that he was the husband of this prosecutrix and that he had been living separate and apart from his wife from March 11, 1886, and that from the time of said separation he had contributed •nothing toward the support and maintenance of his wife. He, however, claimed that he was not liable to her for her support and maintenance, because their separation in 1886 took place under the terms of a written agreement entered into between them “ to live separate and apart from each other during their naturals lives,” on payment and terms then made in consideration of the separation agreed upon. The agreement then entered into was offered in evidence and is not denied, and is as follows, viz.: . . . . On the execution and acknowledgment of these articles of separation, the parties separated, and have continued to live separate and apart ever since. The defendant complied with his part of the agreement, and paid to his wife the consideration therein mentioned. There is nothing in the evidence to indicate that the division of the property was not fairly made, or. that any undue advantage was taken of the wife by the husband in the terms of separation. What was done was done understandingly, under the supervision and advice of counsel, and reduced to writing. The counsel for the prosecutrix contends that the articles of separation entered into do not discharge the defendant from his obligation to support and maintain his wife, for the following reasons, viz.: 1. That the writing made directly between husband and wife,' to live separate and apart, is not a valid and binding agreement. 2. If valid, it does not by its terms and covenants provide for the discharge of the husband from liability for the support and maintenance of the wife in the future. 3. That if the covenants do by implication include the husr band’s release, the wife is not thereby deprived of the remedy provided by the act of April 13, 1867, for a support and maintenance. The first question suggested, we think is determined by Lehr v. Beaver, 8 W. &. S. 105, and other authorities, in which it is held substantially that agreements between husband and wife to live separate, are valid and effectual both in law and in equity, provided their object be actual and immediate, and net a contingent and future separation; and this though the deed be made between the parties without the intervention of trustees: See also Agnew v. Frost, 11 Cent. R. 58. The agreement in this case, under the authorities cited, is to be regarded and treated as a valid and binding agreement upon the parties. The object was actual and immediate, and not a future and contingent separation; it was entered into and executed with deliberation, and evidently with full understanding of the provisions, for it was prepared and signed under the supervision and advice of counsel learned in the law; the properties to be handed over were at once delivered, and the husband and wife parted under their agreement, and have continued to remain separate. Whatever, therefore, are the relative duties and obligations of the parties to one another under their agreement, the same are to be observed and enforced. So long as the agreement stands unrevoked by mutual consent, either in express terms, or by acts or conduct inconsistent with its continued existence, the legal effects of the contract can be enforced. We come now to the second inquiry suggested, viz.: What are the legal duties and obligations assumed by the parties to the articles of separation as a valid and binding agreement? They have mutually agreed “to live separate and apart from each other during their natural lives.” The husband has, in fact, agreed not to molest or interfere with his wife in any way whatever, and permit her to enjoy and dispose of any and all property as though she were feme sole, and further, to pay for her better support and maintenance “$50 in hand, and transfer $100 in value of furniture, and four shares of the stock of the Co-operative Foundry, of Beaver Falls, of the value of $100 per share.” The wife agrees, “ to remise, release, quitclaim, and forever discharge the said husband, his heirs and assigns, and his estate now owiied by him, or which he may hereafter acquire, of and from all claims, shares or interest therein, which she now has or may or might have by reason of her said marriage, and, further, that the husband during his life shall have the custody of their child.” Do these stipulations or conditions affect the marital obligation to support and maintain the wife in the future ? It is clear that there is no discharge from liability in express and unequivocal terms. If it is to be found in the paper, it must be as an inference from the general terms used, or as an incident to an agreement to live separate and apart. We see nothing in the covenants of the husband to indicate an intent to Secure exemption from future maintenance. It is true that he agrees “ to pay for her better support and maintenance,” $50 in hand, $100 in furniture, and $400 in stock (worthless in the end), but the inference that such words were intended to cover her support for all time, in the absence of express terms, would be, we take it, a strained view of its meaning. Does the covenant of the wife relieve the husband ? It does not appear to us to have that effect. The interpretation which might fairly be given to its meaning would be a release of his estate from the dower interest of the wife in property then held or to be acquired. That such is the unquestionable effect of the language cannot be denied, and we think that ought to be the extent of its application. We take the view, that if the husband is to secure discharge from the marital obligation to support and maintain his wife, otherwise than by a decree in divorce, the stipulation in the agreement for such result as a consequence of amicable separation ought to be made to appear, as the contract of the parties, in plain and unmistakable terms. To take away the right from the wife it ought to be justified by express words or by necessary implication, and in the writing we find neither of these essentials. If correct in our view, that the articles of separation do not relieve the husband from his marital obligation to support and maintain his wife, it would be unnecessary for us to discuss the third question, as we have suggested. It may be possible, however, that the view taken is not maintainable, and we therefore deem it proper to refer to the question. Assuming that the words of the agreement do include within their meaning the discharge-of the husband, will the agreement in such case operate as a bar to the proceeding or remedy afforded by the act of 1867 ? We think that it may safely be assumed as the law that the husband, by an agreement made with his wife, cannot exempt himself from liability to support and maintain her, if she should become a charge on the public. But I would be inclined to the opinion that the wife by her own act, where the public interests were not involved, might deprive herself of any resort to her husband for support as a personal right. If held to be capable of contracting, it may be contended reasonably that there ought to be no limit to its extent, in so far as it affects her individual rights and personal comfort. The opposite view, however, is taken in the case of Commonwealth v. Orth, 2 Pears. 446. In that case, a contract was entered into between the parties, with the interposition of a trustee of the wife, by which the husband bound himself to pay her a certain sum of money for past maintenance, and the sum of $12.50 per month so long as she should live, they agreeing to live separate. The wife, who at the time was in a state of health to maintain herself in part, became afterwards sickly, and commenced a proceeding in the Court of Quarter Sessions for maintenance under the act of April 13, 1867. The court say: “We are of opinion that by a fair construction of this act, it will apply to cases where husband and wife have separated by agreement as well as to those of desertion..... The court is then, under the second section of the act, bound to inquire into the neglect and ability of the husband, and order such sum as shall be thought necessary and proper for the comfortable support and maintenance of the wife..... It is a duty from which he cannot escape by a voluntary separation.” The syllabus of the case states the purport of the decision to be that, “ under the act of April 13, 1867, the court can make an order that a husband shall maintain his wife, wdien the parties have separated by agreement and the wife has no adequate means of support.” That statute is remedial in its nature and should be liberally construed so as to advance the remedy. When an allowance is agreed upon between husband and wife at the time of their separation, the sum must be sufficient therefor and punctually paid, else the court may order the payment of a larger sum. All things considered, we have come to the conclusion that the agreement to separate, bearing date March 11, 1886, is not a bar to this proceeding, and that the remedy invoked and the information made presents for consideration and adjudication the rights of the wife, as well in a case of “ neglect to maintain,” as where the ease is one of desertion. The defendant excepted to the opinion and decree of the court, and at his instance a bill was sealed setting out in ex-tenso the offer of the deed of separation, the ruling of the court thereon, and stating the grounds of the defendant’s exception as follows: 1. The said deed of separation in evidence, and made part of this bill, is a bar to this proceeding. 2. By said, deed, the prosecutrix released the defendant from all claims for support and maintenance. 3. In the absence of evidence, and a finding that prosecutrix is unable to support herself, or that she is, or is likely to become, a charge upon the public or her friends, said deed of separation is a bar to this proceeding. The defendant then took this appeal, assigning for error, inter alia: 4. The sentence of the court.4
131 Pa. 220Estate of Knox (1890)
APPEAL BY JAMES A. KNOX EROM THE ORPHANS’ COURT OE ALLEGHENY COUNTY. No. 218 October Term 1889, Sup. Cb.; court below, No. 186 June Term 1889, O. C. On December 14, 1888, James A Knox, husband of Harriet S. Knox, deceased, entered in the court below his appeal from the decision of the register of wills, admitting to probate, as.the last will and testament of said deceased, an instrument written with a lead pencil upon three of the four pages of an ordinary folded sheet of letter paper, of the following form and tenor: “ A few little things I would love to have done. Always keep Vicie and Pot, if possible. Mama to have everything she wants, with a few exceptions of remembrances. Please let sister have my house rent as long as she may live, then may my little namesake have it. The money in Pittsburgh Savings Bank, for Bessie, but just let it be until she is eighteen years old. Please send something I have painted to Miss Judkins, also to Lee. A box in attic I have fixed for Dollie Good, and please Mama always remember her, and help her whenever you can. My diamond pin and largest stone ring and bracelets for Mama. The next size stone in ring for Bessie, also locket and chain, and the next for Harriet, also Auntie’s locket not to have until old enough to appreciate it. Please send seal sacque to Lena Johns, and fur circular to Katie Good, my beaver set to Dollie Good. Give Jane my blue suit, also please take one hundred dollars out of the rent of next quarter, October, and give her for a nest-egg — she is so good and loves Vicie. The $1,000 Auntie left me, please give to Lee $500, and sister $500. My coral to Ella McKinney and a plain gold ring to Dan. McK. Sewing machine to sister, and have her take some money, get nice books and give one to each one of my Sunday school class of 1885, which I left, when going to New Brighton. Please have just my baptismal names on stones, daughter of E. J. and Felician Slataper. Doctor Dunn would give you the list of names, about eleven or twelve gills. My large arm-chair to Dr. Strom. Take good care of Vicie ‘ somebody ’ as long as she lives. Saturday. Harriet.” The grounds of the appeal, and of the prayer for the reversal of the register’s decree, were the following: 1. That said alleged will does not claim to be the last will and testament of said decedent. 2. That said alleged will is not dated. 3. That the signature of the alleged testatrix is not attested by any subscribing witnesses. 4. That said alleged will is not signed by the name of the alleged testatrix at the end thereof. 5. That said alleged will is not executed in accordance with the requirements of the acts of assembly in such case made and provided. At the hearing of the appeal it was agreed by counsel that the testimony taken before the register should be treated as if taken before the court. That testimony was to the folio Aving effect: Mrs. Knox died unexpectedly on October 27, 1888, at the home of her father, Felician Slataper, in the city of Pittsburgh, being then in the twenty-fourth year of her age. She left no children. From January 15,1888, until her death, she was living apart from her husband, in consequence of differences that had arisen between them, and was an inmate of her father’s family. Three days after her death, her only sister, Mrs. Samuel Kerr, found the paper under consideration in a portfolio which was lying in a cupboard, in the room occupied by the decedent at the time of her death. Four witnesses testified that they were familiar with the decedent’s handwriting, and that in their opinion both the body of the instrument and the signature Avere written by her, and one of them testified that the signature ordinarily used by the decedent in her correspondence consisted of the word “ Harriet ” alone. The aunt whose bequest is mentioned in the paper, died on August 15, 1888. After argument, the court entered a decree affirming the decision of the register and dismissing the appeal therefrom, Over, J., filing the following opinion: The writing admitted to probate by the register as the will of Harriet Knox, deceased, is testamentary in form, and if properly executed and proved the decision must be sustained. It appears from the evidence of four witnesses that the whole paper as well as the signature “ Harriet ” is in her handAvriting; that this was the signature used in her correspondence ; and she is fully identified by the request .made in the paper as to the inscription upon her tombstone. It is objected however by the appellant that the signature “ Harriet ” is not such a signing of the paper as is required by the fifth section of the act of June 3, 1887, which provides as follows: “A married woman may dispose of her property, real and personal, by last will and testament in writing, signed by her or manifested by her mark or cross, made by her at the end thereof, in the same manner as if she were unmarried.” The main purpose of the signature is to show the execution of the paper; and if one were prepared in a formal manner, and it was evident that it was the intention to strictly comply with all the forms of law, the signature of the Christian name alone might not be considered sufficient evidence of its execution. There does not seem, howovei’, to be anything in the act which requires the full name to be signed. And when the paper is as informal as this one, and signed by the testatrix in her customary manner, the signature of her Christian name shows its execution as conclusively as if she had signed her full name. But it may be, that if this act is to be construed as to the signing of the paper as strictly as that of April 8, 1833, it would be held that it was not properly signed. The act, however, provides for the execution of a testament by the mark of the testatrix, and, as there is no rule which prescribes for it any particular form or structure, the word “ Harriet ” may be regarded as her mark: Hartwell v. McMasters, 4 Redf. 39; Schouler on Wills, § 304. It is not necessary that the name should be written with it, and, therefore, if considered as a mark, the paper is properly executed as a will: Long v. Zook, 13 Pa. 400. If it was an ordinary mark or cross, it would be perhaps impossible to prove it except by witnesses who saw it made, but it is not necessary that they should be subscribing witnesses : Carson’s App., 59 Pa. 498. In that case the question of the execution was treated as one of proof. And, as it is shown here by the testimony of four witnesses, and is not denied, that the signature “ Harriet” is in the handwriting of the testatrix, the proof of the execution of the paper is ample, and the register was right in admitting it to probate. The appeal is therefore dismissed. Exceptions, filed by James A. Knox, to the findings and decree of the court, were dismissed on September 4,1879, whereupon James A. Knox took this appeal, specifying, inter alia, that the court erred: 5. In dismissing the appeal and sustaining the decree of the register admitting the paper in question to probate.
131 Pa. 233N. Holmes & Sons v. Briggs & Drum (1890)
APPEAL BY DEPENDANTS EROM THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 227 October Term 1889, Sup. Ct.; court below, No. 287 September Term 1885, C. P. No. 1. On July 2, 1885, John G. Holmes and others, partners doing business as N. Holmes & Sons, brought assumpsit against C. Q. Briggs and John Drum, partners as Briggs & Drum, to recover the amount of a draft drawn upon tbe defendants by Alexander & Co. At tbe trial, on March 31, 1887, the jury under the peremptory instructions of tlie court rendered a verdict for the plaintiffs, and judgment was entered thereon. Upon a writ of error to No 139 October Term 1887, that judgment was reu with a venire facias de novo: Briggs v. Holmes, 118 At the second trial, on March 1, 1889, substantially the same facts were shown as upon the former trial. W. H. Drum, called for defendants, testified in chief: .Q. I wish you would state now how you came to pay that draft by a cashier’s check. A. I was notified some time previous. to that by Holmes & Sons, by one of the clerks, that they would not accept our check in payment of drafts, that I would have to bring a cashier’s check, and I did so. Q. Had you been lifting drafts through Holmes’s Bank prior to that time? A. Yes, sir.....Q. Now, you have stated that once you went down there'with your own check? A. Yes, sir..... Q. Do you think you have given us the substance of the conversation that occurred that day at Holmes & Sons, when you went down to lift the draft ? A. Do yon mean the one when I took our own check? Q. Yes, sir. A. He said, “ I will take it this time, but I wont take it again; either have a certified check, or a cashier’s check.” . . . . Q. And after that you would take down a Penn Bank check and present it and lift the draft ? A. Yes, sir. Q. And the checks went through the Clearing House and were paid? A. I suppose they were paid; I never heard anything from them. At the close of the testimony, the court, Slagle, J., charged the jury: This action is brought by Holmes & Sons against Briggs & Drum for the recovery of a certain amount of money due upon a draft sent to them for collection. The action is not directly upon this check, but for the money which is alleged to be due from Briggs & Drum upon a draft held at that time by Holmes & Sons. There is no dispute as to the fact that this draft was drawn by some person upon Briggs & Drum and sent to Holmes & Sons, who held it and had a right to receive the money. Nor is there any dispute that Briggs & Drum owed the money upon that draft. But they allege that it was paid, and that is the only question- in this case for your determination.' Was the draft paid ? If it was not, then the plaintiffs are entitled to recover the balance remaining unpaid upon that draft, of which you will have a statement. not alleged that this draft was paid in any other way he delivery to Holmes & Sons of the check which has been shown to you. That cheek is what is called a cashier’s check, of the Penn Bank; and it is used as the equivalent of a certified check, the banks sometimes certifying the check, sometimes taking up the check and giving a cashier’s check instead of certifying; and it amounts to the same thing. It is an assumption, in other words, by the bank instead of the individual of the liability; but being the check of a third person, the presumption of law is that it is taken simply as a conditional payment, that is, if the check be paid, then the debt will be paid; if not, otherwise. This being the presumption in the case, when the plaintiffs rested, after having shown the fact that this draft was held by Holmes & Sons, and Briggs & Drum had been called upon for payment and had delivered to them this dishonored check and taken up the draft, there was nothing in the case to show payment under the law, the presumption being that that check was taken as conditional and not as absolute payment. [Therefore, the burden of proof was upon the defendant to show that that check was given by Briggs & Drum and accepted by Holmes & Sons as payment; and if so, then your verdict should be for defendants. That is the only question in this case, and that is a question of fact. It is a question of the intention of the parties. When this check was delivered over to Holmes & Sons, did Briggs & Drum intend to give it, and Holmes & Sons to receive it, as payment of the indebtedness that they then owed? You have all the facts connected with the matter in evidence, and from them you must find that the weight of evidence is that it was accepted by Holmes & Sons as payment, and that they did not intend further to look to Briggs & Drum, but took this check of the Penn Bank in payment and satisfaction of their obligation.] 3 I do not propose to go over the testimony in this case. You have the testimony of Mr. Drum as to what occurred in relation to this matter when he presented a check to Holmes & Sons in payment of a preceding draft. He states that after that it was their universal custom to pay all drafts at Holmes & Sons with checks similar to this; that they were received by them, and there was never any question about them, because, the Penn Bank remaining good, he presumed they had all been paid, at least they had never heard anything more about them, but that they did, from that time on, receive these checks in this way, and delivered up the drafts which they held. You will take the circumstances and the language used, as far as you can gather it, and say whether or not it was to be payment, or simply conditional payment; that is, absolute payment, or simply conditional payment. The word “ absolute,” of course, was not used; but the word “payment” was used. That is not necessarily absolute or conditional, but it may be determined by you from the circumstances, whether it was intended to be absolute payment. If so, then as I say, your verdict should be for the defendants. There is another fact in the case; that is, that after this check was dishonored by the Penn Bank, it was held for some time by Holmes & Sons without any demand upon Briggs & Drum for the payment of it. That is a fact which you have a right to consider in connection with the other circumstances in the case. That alone perhaps might not have much weight with you, but you will take it in connection with the testimony of Mr. Drum as to what was said and what was done after the conversation in relation to how these things should be paid. There is another fact that has been referred to; and that is, the presentation of this check to the assignee of the Penn Bank by Holmes & Sons, and their receiving a dividend upon it. That is a fact that you will consider along with the others, but in my judgment it has very little bearing, because, as stated by counsel, if they went to Briggs &■ Drum to have this matter settled, and it was not settled, and they still held possession of the check, it was their duty to the defendants, if they were going to hold them liable, to present it and get what they could out of it. I do not think there is much in that particular fact. However, that is all for you. But you must be satisfied from all the circumstances that this check was received by Holmes & Sons as payment. Defendants’ counsel have asked me to instruct’you: 1. That-the acceptance by plaintiffs from defendants of the cashier’s check of Penn Bank, drawn to plaintiffs’ order, for the amount of the draft of Alexander & Co., and the delivery to defendants of the said draft, followed by failure on the part of plaintiffs to notify defendants of the dishonor of said cashier’s check, and the retention of said check until the present time, and collection of dividends on account thereof, is a bar to the plaintiffs’ right to recover in this suit. Answer: Refused. The facts therein stated are for your consideration upon the question of the understanding between the parties.1 4. That the failure on the part of Holmes & Sons to give notice to Briggs & Drum of the non-payment of said cashier’s check, and their retaining possession of said check without offer to surrender same until the present date, and collecting dividends thereon from the assignee of the Penn Bank, raise a sufficiently strong presumption that said check was accepted as absolute payment of the draft, to justify the jury in finding a verdict for defendants. Answer : Refused. The effect of the testimony is for you and not for the court.3 —Subsequently, the jury having asked for the further instructions, the court replied to their request as follows: You ask me whether or not a cashier’s check is money, or so considered from a legal point of view. It is not so considered. That is what was decided by the Supreme Court in this case when it was before them, after having been tried in this court. [The question for you to determine is, whether or not Holmes & Sons agreed to accept it as money, as payment. That is the question of fact for you to determine. It is entirely for you to say from all the evidence, whether or not Briggs & Drum gave it to them and they accepted it as money, as payment; and I cannot make it any clearer.] 4 The verdict of the jury was in favor of the plaintiffs for $2,541.81. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendants took this appeal, assigning for error: 1, 2. The answers to defendants’ points.1 3 8, 4. The parts of the charge embraced in [ ] 3 4
131 Pa. 241Peoples Sav. Bank v. Denig (1890)
1 OE ALLEGHENY COUNTY. No. 228 October Term 1889, Sup. Ct.; court below, No. 39 June Term 1886, C. P. No 1. On March 10,1886, the Peoples Savings Bank brought ejectment against Christian Denig, terre-tenant, with notice to Benjamin P. Wilson, the Woods Run Savings Fund and Loan Association, James Wallace, and Amelia Gilleland Irwin and husband, to recover a tract of land in Allegheny county. The defendants’ plea was not guilty.
131 Pa. 256Carson v. Fuhs (1890)
APPEAL BY PLAINTIEES EBOM THE COUBT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 229 October Term 1889, Sup. Ct.; court below, No. 461 April Term 1887, O. P. No. 2. On April 2, 1887, a summons was served in an action of ejectment brought by Eliza Carson and others against Adam Eubs and others, to recover tbe undivided ten elevenths of three lots of ground in the city of Allegheny. Issue. At tbe trial on December 14, 1888, the following facts were shown: On July 20, 1858, Stewart Hamilton became invested with the title in fee-simple to tbe whole of the property in controversy. On January 18,1867, Stewart Hamilton, together with his wife, Isabella, executed and delivered to their son, James Hamilton, a deed whereby, for tbe expressed consideration of “ one dollar and natural love and affection and better maintenance of the parties for whose use this deed is made in trust,” etc., they conveyed said property to Mm, his heirs and assigns, “ in trust, nevertheless, for the use of the said Isabella Hamilton, wife of the said Stewart Hamilton, during ber natural life, and at her decease then to her heirs in fee, share and share alike, and in tbe meantime to allow and permit her to receive to her own rise the rents, issues thereof, subject to the taxes and the costs of executing this said trust.” On October 80, 1867, James Hamilton made a deed, designating himself as “ trustee of Isabella Hamilton and her heirs,” and purporting, in consideration of one dollar, to reconvey the property to Stewart Hamilton and Ms heirs. A part of the property, on February 25, 1868, was conveyed by Stewart Hamilton and Isabella, his wife, for the consideration of $3,000, tb James Hamilton, who afterwards conveyed. the same to the defendant, Adam Fuhs. The remainder of it was sold and conveyed by Stewart and Isabella Hamilton to Adam Fuhs by two deeds, dated respectively in 1869 and 1874. Fuhs took possession of the several parcels thus purchased by him and made valuable improvements on each of them. Isabella Hamilton died July 8, 1885, intestate, and leaving to survive her her husband, Stewart Hamilton, and ten children and one grandchild as her heirs at law. All of said heirs except the oldest son, James Hamilton, named above, were joined as plaintiffs in this action. The surviving husband, Stewart Hamilton, was still living at the time of the trial. At the close of the testimony the court, White, J., instructed the jury to find for the plaintiff for the undivided ten elevenths of the property described in the writ, subject to the opinion of the court on the question of law reserved, to wit: Whether, on the deeds put in evidence, it being admitted that Stewart Hamilton, the husband of Isabella ’ Hamilton, is still living, the plaintiffs are entitled to recover ? On February 2, 1889, the reserved question having been argued, the following opinion was filed, White, J.: The plaintiffs are children of Mrs. Isabella Hamilton, deceased, who was wife of Stewart Hamilton, and claim under a deed of trust executed by Stewart Hamilton and wife to their son James Hamilton, dated January 18, 1867, for three lots of ground in Allegheny City. The deed is to James Hamilton, his heirs and assigns, in fee-simple, with covenant of general warranty, “ in trust for the uses hereafter mentioned,” in consideration of “one dollar and natural love and affection and better maintenance of the parties for whose use this deed is made in trust,” etc. The trust is in these words: “ In trust nevertheless for the use of the said Isabella Hamilton, during her natural life, and at her decease then to her heirs in fee, share and share alike, and in the meantime to allow and permit her to receive to her own use the rents, issues thereof, subject to the taxes and costs of executing this said trust.” Nine months thereafter, October 30,1867, James Hamilton conveyed back the premises to Stewart Hamilton, describing himself as “ Trustee of Isabella Hamilton, and her heirs,” in consideration of one dollar, but making no reference to the trust deed, or his title, and conveying in the usual form, as if the property was his own, with general warranty, signing his name simply, James Hamilton. Stewart Hamilton and Isabella his wife, subsequently, by deeds dated February 25,1868, and January 12,1869, conveyed two of the lots to James Hamilton, who conveyed to Adam Fuhs, and then by deed of April 30, 1874, Stewart Hamilton and Isabella his wife, conveyed the remainder to Adam Fuhs, who thus claims title to the whole. In none of their conveyances is there any reference to the trust deed from Stewart Hamilton and James Hamilton. Isabella Hamilton died July 8, 1885, leaving ten children, and her husband, Stewart Hamilton, who is still living. The question of law reserved is, what title did Isabella Hamilton take by the trust deed ? If she took merely a life estate, the plaintiffs are entitled to recover; if a fee, either under the rule in Shelley’s Case, or by virtue of the statute of uses, they are not. I think no question of estoppel can be raised against the plaintiffs during the life of their mother. All the deeds were duly recorded before Adam Fuhs bought. The trust deed Avas directly in the line of his title, and he had constructive notice of it. He paid his purchase money and made improvements at his own risk. The rule in Shelley’s Case is firmly established as a law of this state. While it is difficult to reconcile some of the decisions, the rule itself has never been denied, and no avowed effort made to defeat or evade it. The rule briefly stated is this : When by deed or will an estate in land is given to one for life, and at his death the remainder to his heirs in fee, the estate of the life-tenants is enlarged to a fee ; the two estates are merged in one, and the first taker takes the whole. The true test in the application of the rule is, did the grantor or donor intend that the remaindermen should take as heirs of the life-tenant? “ The thing to be sought for is not the persons who are directed to take the remainder, but the character in which the donor intended they should take: ” Guthrie’s App., 37 Pa. 12; nor the intention that the first taker should have only a life estate; for that intention must be overthrown, if apt words are used to bring the case within the rule. The words “ heirs ” may be limited or modified by other unequivocal expressions in the deed or will; and other words than that of “ heirs ” may have the effect of bringing the case within the rule. “ Any form of words sufficient tó show that the remainder is to go to those whom the law points out as the general or lineal heirs of the first taker will enlarge the estate of the life-tenant into a fee by implication : Potts’s App., 30 Pa. 170 ; McKee v. McKinley, 33 Pa. 93; Dodson v. Ball, 60 Pa. 493; Yarnall’s App., 70 Pa. 341. If the deed we are considering had been directly to Isabella Hamilton, “ during her natural life and at her death then to her heirs in fee, share and share alike,” there could be no doubt she would have taken a fee. The added words, “ share and share alike ” are not sufficient to take it out of the operation of the rule: Physick’s App., 50 Pa. 136; Ogden’s App., 70 Pa. 501. But the rule in Shelley’s Case does not apply, unless both estates, for life and in remainder, are of the same quality, both legal or both equitable. Here the legal estate -under the trust deed, is in the trustee, and Isabella Hamilton had only an equitable life estate. So had the remaindermen; but under the statute of uses, it became an executed trust as to them, and they took the legal estate in remainder, if the first taker had only a life estate. Was it a dry or executed trust, also, as to her, so that she took the legal estate under the statute of uses ? A dry, naked trust, where no duties are to be performed by the trustee, is a passive trust, and as a general rule, is executed by the statute. Active trusts where important duties are confided to the trustee, such as renting and managing the estate, investing money, distributing the proceeds, etc., are not within the operation of the statute. Others, not strictly active but passive trusts, will be saved where, (a) it is necessary for the protection of a married woman; (5) for the protection of a spendthrift child; (e) to support contingent remainders; (fl) or to serve some other useful and lawful purpose. As the trustee had no duties to perform under this trust, it falls under the second class, passive trusts. The only ground for contending that it is saved from the operation of the statute is, that it was for the protection of a married woman. Mrs. Isabella Hamilton was tlie beneficiary, and the only one intended to be provided for by tlie deed of trust. Although the consideration is stated as, “one dollar and natural love and affection and better maintenance of the parties for whose use this deed is made in trust,” yet the only person mentioned as interested in the trust, or whose maintenance is provided for, is Isabella Hamilton. The trustee is to “ allow and permit her to receive to her own use the rents, issues thereof, subject to the taxes and cost of executing this said trust.” The object of creating a trust for a married woman is to save the property from the debts or control of her husband. Trusts for this purpose, or for one in immediate contemplation of marriage, will be sustained. “ When an active trust is created, to give effect to a well defined purpose of a testator in reference to his family, the trust must be sustained whether the cestui que trust is sui juris or not: ” Barnett’s App., 46 Pa. 392; Earp’s App., 75 Pa. 119. But even an active trust ceases when there is no longer any purpose to serve by keeping it alive. If the trust is simply for the benefit of a married woman, or one in contemplation of marriage, it falls when she becomes discovert, and is not revived by a subsequent marriage: Bush’s App., 33 Pa. 85; Earp’s App., supra. Dodson v. Ball, 60 Pa. 492, is where a single woman conveyed land to a trustee in trust to permit her to occupy, manage and rent her premises and take the income for her sole and separate use for life and upon her decease to convey the same to such person as she might appoint, or, in default of a will, to such persons as would be entitled under the intestate laws, etc. She afterward married and her husband died. By bill she asked for reconveyance. It was held an executed trust and that she was entitled to reconveyance. The opinion of the court concludes : “ The trust being passive, and the trustees not being needed to protect any other interest, Mrs. Dodson being sui juris and competent to exercise any power which had been vested in the trustees, the ulterior trust not being intended to protect any special interests, but being exactly commensurate with her own power and estate as absolute owner, there is no proper or useful purpose to uphold the trust and it consequently fell when she became discovert.” This case was not strictly a passive trust, for there.were certain duties to be performed by the trustees. But it fell with discoverture. Trusts for the sole and separate use of married women have been sustained in order to effectuate the object of the trusts; that is, save the property from the control or debts of their husbands. When the husband dies, the trust falls because there is no longer any necessity for it. Our married woman’s act of 1848 secures to married women the entire control and management of their separate estate and protects it from the debts and liabilities of their husbands. It accomplished all that can be accomplished by a trust for that purpose. Hence, such a trust is no longer of any necessity or practical advantage, and should fall, or be considered an executed trust, as in cases of discoverture. The trust deed in this case was executed in 1867, nineteen years after the passage of the act of 1848. It is, as we have seen, solely for the benefit of Mrs. Isabella Hamilton, then a married woman. If the title had been made directly to her she would have taken the property entirely free from the control, debts and liabilities of her husband. The trustee was simply the depository of the legal title, with no duties whatever to perform. It was a dry, naked trust. Mrs. Hamilton was to receive the rents and issues, subject to taxes and expenses, during her natural life, and at her death, then the property to go to her heirs. As there was no useful purpose-to be served by the trust, it was executed by the statute of uses and fell still-born at its birth. The trustees had no duty to perform during her life, or at her death. The trustee was not required to convey. The property went to the heirs of Mrs. Hamilton by virtue of the trustee’s deed itself. .Both estates, for life and in remainder, being legal, they merged, and Mrs. Hamilton took the feei, under the rule in Shelley’s Case. It follows that Mrs. Hamilton and her husband could convey the fee. They might have done that, perhaps, without a reconveyance by the trustee. But after such reconveyance, and deeds for the fee-simple duly executed by Mrs. Hamilton and her husband for the whole property, her children have no claim or interest in the property. And now, January 26, 1889, the question of law reserved is decided in favor of defendants, and it is ordered that judgment be entered in favor of defendants, non obstante veredicto.8 Judgment having been entered accordingly, the plaintiffs took this appeal, assigning the order entering said judgment as error.
131 Pa. 267Stutz v. Loyalhanna Coal & Coke Co. (1890)
1 OE ALLEGHENY COUNTY. No. 280 October Term 1889, Sup. Ct.; court below, No. 81 March Term 1888, C. P. No. 1. On January 2, 1888, a summons in assumpsit was served in an action brought by Sebastian Stutz against The Loyalhanna Coal & Coke Company. Issue.
131 Pa. 273Nelson v. Guffey (1890)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 1 OP ALLEGHENY COUNTY, IN EQUITY. No. 231 October Term 1889, Sup. Ct.; court below, No. 117 September Term 1888, C. P. in Equity. On June 20, 1888, a bill in equity was filed by William Nelson against William C. Guffey, in which it was in substance averred: That on June 6, 1874, William C. Guffey, the defendant, then and now a resident of Westmoreland county, obtained an award of arbitrators against the firm of Blackmore & Nelson, composed of William Nelson, the plaintiff, and James Blackmore, since deceased, which was entered as a judgment at No. 680 June Term 1874, Court of Common Pleas No. 1, for the sum of $9,652.64,- that on July 7, 1874, an exemplification of the record of said judgment was filed in the Court of Common Pleas of Westmoreland Co., at No. 388 August Term 1874, and on the same day said defendant caused a writ of fieri facias to be issued thereon and personal property of Black-more & Nelson, in said Westmoreland county, to be levied upon and advertised for sale; that on Angust 13, 1874, an injunction issued from the District Court of the United States for the Western District of Pennsylvania, at No. 2036, restraining said defendant from interfering with the property or estate of said Blackmore & Nelson, and no further proceedings were had on said judgment in Westmoreland county until January 8, 1887, when a writ of scire facias was issued thereon to revive the same, which writ was returned nihil, and afterward, to wit, February 25, 1887, an alias writ of scire facias was issued, which was likewise returned nihil, whereupon, on March 9, 1887, judgment of revival was entered by default for want of appearance, and the sum due liquidated at $12,444.94; that immediately thereafter, upon the filing of the affidavit required by law, a writ of testatum fieri facias was issued upon said revived judgment, directed to the sheriff of Allegheny county, and was then in the hands of that officer for collection from the property of the plaintiff, the estate of said James Blackmore, deceased, being insolvent; and that the plaintiff, having been for many years prior to the entry of the original judgment, and continuously since, a resident of Allegheny county, had no notice of said writs of scire facias, and no opportunity to defend against the same, his first knowledge thereof being the issuance of said testatum fieri facias. The bill averred further, that the original judgment from which said exemplification was taken, had long since been satisfied and discharged; that on or about October 18, 1878, proceedings in involuntary bankruptcy were instituted in said District Court against said firm of Blackmore & Nelson, who were duly adjudicated bankrupts on October 29, 1874; that on February 12, 1879, the plaintiff was regularly discharged as a bankrupt from the payment of all pre-existing debts of the firm of Blackmore & Nelson, the judgment now attempted to be enforced by said William C. Guffey representing one of said pre-existing debts; that the plaintiff believed that the revival of said discharged judgment in Westmoreland county, where no notice could be had by the plaintiff, was a trick and a device, intended to deprive him of an opportunity to plead his discharge in bankruptcy, and thus to secure to the plaintiff an unconscionable advantage in the prosecution of his alleged claim. So averring, the plaintiff prayed for an injunction directed to said William C. Guffey, the defendant, and the sheriff of Allegheny county, “ to restrain them from further proceeding with said writ of testatum fieri facias, and to compel said' William C. Guffey to abstain from any and all interference by execution, levy, sale, or in any other manner whatsoever, with •the property or estate of jmur orator, by virtue of or under any authority of the judgment obtained against him at No. 680 June Term 1874, in the Court of Common Pleas No. 1 of Allegheny county, or upon the exemplification thereof entered at No. 888 August Term 1874, in the Court of Common Pleas of Westmoreland county.” A bond having been filed, on hearing of plaintiff’s motion ■after notice thereof, a preliminary injunction was issued and served; subsequently, an answer having been filed by the defendant, setting up the grounds of defence sufficiently appearing in the opinion of the court below, the cause was set down by the plaintiff for hearing upon bill and answer. On September 3,1889, after argument, the court, Slagle, J., filed an opinion, which, after stating the facts shown by the pleadings, proceeded: The defence set up in the answer is altogether legal: (1) that the debt was not discharged, because it was created by the recovery of judgment on June 6, 1874, after proceedings in bankruptcy were commenced; (2) that if the original judgment was discharged by the proceedings in bankruptcy, they did not affect the revived judgment obtained on March 9, 1887, in Westmoreland county; and (3) because said William Nelson, before the bringing of his bill in this case, had presented his petition to the court containing substantially the same averments as the bill, and asking that the judgment at No. 680 June Term 1874, be opened to permit him to plead his discharge in bankruptcy, upon which a rule was granted, and after argument of counsel and consideration by the court, was discharged. If the third objection is good it will be unnecessary to consider the first and second. It may therefore be properly disposed of first. It has been held in a number of cases that “ a bill in equity cannot be maintained to restrain execution upon a judgment at law, where a rule to show cause, etc., founded on the same facts, had previously been discharged by the court: ” Given’s App:, 121 Pa. 260; Gordinier’s App., 89 Pa. 528; Frauenthal’s App., 100 Pa. 290. This is simply the application of the principle that a judgment of any court having jurisdiction, is conclusive of the matters adjudicated, as between the parties and privies. But in order to make the judgment conclusive it must appear that the issues are the same, and involve substantially the same state of facts, and that the decision was upon the merits of the case. Such does not appear to be the case here. The bill filed is for the purpose of restraining the plaintiff at No. 680 June Term 1874, from proceeding to execute in this county a testatum fieri facias upon a judgment entered in Westmoreland county upon exemplification from this county, or any execution process upon the judgment in this county. The matter adjudicated by the court upon petition at No. 680 June Term 1874, which is claimed to be a bar, was an application to open the original judgment and permit the defendant to plead the discharge in bankruptcy. It is very clear that these are not the same issues. A state of facts might exist which would justify the restraining of execution, which would not authorize the opening of a judgment. It might be that the court would say, “ As there was no fraud, and the judgment was obtained after a legal trial, it cannot be opened,” and at the same time say, “if the execution were based upon a judgment within our control we would stay it without hesitation.” The court is therefore of opinion that the order of the court at No. 680 June Term 1874, discharging the rule to open the judgment in that ease, is not a bar to proceedings in equity to restrain execution for the same debt. —Considering upon the first question, as to the effect of the discharge upon the original judgment, the cases of Boynton v. Ball, 121 U. S. 457; Wise’s App., 99 Pa. 193, the opinion proceeded : It is clear, therefore, that the plaintiff should not be compelled to pay the debt evidenced by the judgment at No. 680 June Term 1874, unless something has occurred since the discharge in bankruptcy to avoid its effect. This is supposed to be found in the entry of judgment upon the scire facias upon this judgment transferred to Westmoreland county. The allegation of a fraudulent purpose in issuing the writ in Westmoreland county, where the defendant did not reside, and had no property, instead of issuing upon the judgment in Aliegheny county, where he did reside and own property, is denied, and must be accepted as true; but the allegation that the defendant in that case and the plaintiff here, had no notice of the proceedings or knowledge of the judgment until the attempt to enforce a testatum execution is not denied, and the effect as to him is the same, whether so intended or not. In Dimmock v. Reviere Copper Co., 117 U. S. 559, it was held that “ a discharge in bankruptcy is no bar to an action upon a judgment recovered against the bankrupt after his discharge, in a suit commenced before the bankruptcy and pending when the discharge was granted, though founded upon a debt provable against him in bankruptcy.” See also Stewart v. Colwell, 24 Pa. 67. But this was because the discharge having been granted before judgment, the defendant had an opportunity and should have availed himself of it on a defence in proper time. This case is more like that of Wise’s Appeal, where the judgment was entered upon a warrant of attorney, in which the court held that it should be opened to enable the defendant to avail himself of the benefit of his discharge, which he could not have upon the scire facias. In this case there .is- no element of waiver or laches. ’ The judgment was entered upon two nihils, which, though equivalent to service for some purposes, is not actual but only constructive notice; and it appears that as soon as the defendant in that case had knowledge of the judgment, he took action to avoid its effect. He has done nothing recognizing the obligation, nor has he voluntarily omitted to do anything from which such recognition would be presumed. To enforce the claim, would be to compel the payment of a claim from which the plaintiff in this case had been legally discharged, and which had as to him been satisfied in law; This should not be done. Plaintiff is clearly entitled to relief, and the only question is, whether this court can administer relief in the proceeding before it. It is claimed by defendant in this ease, that this court has no power to interfere with a testatum execution from the court of Westmoreland county, and that plaintiff’s only remedy, if any, is by application to that court. It is possible that that course was open to him, and that an appeal to that court to restrain the execution would be effective, but he has invoked the power of this court, and if we have jurisdiction to grant the relief, we should do so. The prayer of this bill is, among other things, “ to compel the said William C. Guffey to abstain from any and all interference by execution, levy, sale, or in any other manner whatsoever, with the property or estate of your orator, by virtue of or under authority of the judgment obtained against him at No. 680 of June Term 1874, in the Court of Common Pleas No. 1 of Allegheny county.” This we have the unquestioned power to do: Boynton v. Ball, 121 U. S. 457; Wise’s App., 99 Pa. 193; and in the mode adopted here, by bill in equity: Given’s App. 121 Pa. 260. But the bill further prays that the same order be made as to the exemplification of said judgment entered at No. 388 August Term 1874, in the Court of Common Pleas of Westmoreland county, and that the said William C. Guffey and the sheriff of Allegheny county be restrained, “from further proceedings with said testatum fieri facias.” The sheriff is not a party to this suit, and as he is an officer of this court, it would be improper to make any order as to him. In the case of Given’s App., 121 Pa. 265, a judgment had been entered in Common Pleas No. 4 of Philadelphia county, in 1882, upon a warrant of attorney. In 1887, writs of scire facias and alias scire facias had been issued, whereupon the defendant filed her bill in the same court, praying that the judgment bond be declared null and void; that the judgment and scire facias be stricken off; that the defendant in the bill be restrained from further proceedings to obtain a revival thereof, or to issue any writ of execution on the original judgment, and for further relief. The court below dismissed the bill, saying: “We decide that a bill to declare the judgment void, and restrain the execution of it, will not be entertained before the refusal or discharge of a rule to open the judgment.” This judgment was reversed, Justice Clark saying: “The court below, as a court of equity, of course has no power to interfere with the records of the Common Pleas as a court of law..... The first two prayers of bill, therefore, we have no power to grant. If a proper case is presented, howmver, we may enjoin Kern from proceeding to enforce tbe judgment, but the injunction in such case would not be addressed to, nor would it operate on, the Court of Common Pleas; it would be addressed to Mm, and would in terms prohibit him from resorting to the legal jurisdiction in which his judgment was obtained for the enforcement thereof.” This would seem to justify this court in granting the relief, having properly obtained jurisdiction of the parties; but we would hesitate to exercise the power, even in case of a testatum fieri facias levied upon property in this county, if the judgment had been originally entered in Westmoreland county. We would probably restrain' proceedings until an opportunity was afforded for appropriate action in the proper court of that county. But under the circumstances of this case, we do not regard it as a breach of comity to proceed to a final determination of the matter. The original judgment is in this court, and the proceedings in Westmoreland county are ancillary to it, and for the purpose of enforcing its obligations. “ It is not. then a very judgment of the court to which it has been transferred, but a quasi judgment, and that too only for limited purposes: ” Brandt’s App., 16 Pa. 843. It remains a judgment of the court in wMeh it was first entered. The act of assembly, therefore, gives no authority to transfer it from the court to wlfich it has been transferred, for the reason that it is not a judgment of that court: Mellon v. Guthrie, 51 Pa. 116. A judgment that is transferred from one county to another, under the act of April 16, 1840, bears a very strong analogy to a testatum execution. It is transferred only to facilitate its enforcement, but with a right to all the writs of scire facias that may be needed for that purpose. The primary judgment is still the principal one: ” King v. Nimick, 34 Pa. 297. It has the same force and effect, so far as concerns execution proceedings in the county to which it was transferred, as if it had been originally entered there: Baker v. King, 2 Gr. 256. The logical conclusion from these cases is, that being transferred for purposes of execution only, a revival of the transferred judgment would merely continue the lien, and would not create a new judgment independent of the original. But it is argued that the testatum fieri facias has some peculiar sanctity which forbids our interference with its enforcement. It is true that the courts of a county into which a testatum fieri facias is sent, have no power to directly interfere with its execution, but it is not so clear that where a party has obtained judgment in one county, and voluntarily goes into another by such process, the courts of such county may not interfere in equity to prevent him from unjustly taking the property of a party resident there. But that is not this case. The defendant comes here to enforce payment of a judgment of the court which we are satisfied he has no right to demand, and it certainly should make no difference that he comes here by the way of Westmoreland county. The judgment being still the judgment of this court, we have the right to inquire into the process which emanates from it. If, as we have held, the revived judgment in Westmoreland county is ancillary to the judgment in this county, the execution thereon must be also. The question may therefore arise as to the validity of such execution. If the transferred judgment cannot be transferred to another county, as held in Mellon v. Guthrie, 51 Pa. 116, it is at least doubtful whether a testatum execution will lie upon such transferred judgment. The act of Juno 16,1886, § 76, P. L. 775, authorizes a testatum fieri facias where the defendant “ has no real or personal estate in the county where such judgment may be obtained.” If the transferred judgment is, not a judgment of the county to which it is transferred, as held in Mellon v. Guthrie, it would not come within the provision of the act of 1836. But if the act authorizes a writ of testatum fieri facias upon a transferred judgment, it surely cannot be allowed to come into the county in which the original judgment was obtained. To do so would produce great confusion. It is the duty of the prothonotary, upon receipt of such a writ, to enter the same of record, and thereupon it becomes a lien upon the real estate of the defendant. So there would be two liens for the same debt in the same court. Upon the expiration of one, the other might continue, and the lien of the original debt be continued for ten years without reviva]. But, further, the writ is then returned to the sheriff for execution. If an execution were issued upon the original judgment, the court in which it was entered would have control of it; but if transferred to another county and a testatum fieri facias returned, we would have the anomaly of a process in the hands of the sheriff of the county, for execution of a judgment of the court of the county over which the court had no control. Such could not have been intended by the legislature and ought not to be recognized by the courts. The debt for which the judgment was obtained at No. 680 June Term 1874, having been discharged in bankruptcy, and this court appearing to have jurisdiction of the subject-matter and the parties, the injunction will be continued and made perpetual. A formal decree having been entered restraining William C. Guffey as prayed for in the bill, the defendant took this appeal, specifying that the court erred, (1) in not dismissing the bill at plaintiff’s costs ; (2) in decreeing that an injunction issue as prayed for in the bill.
131 Pa. 292Fisher v. Monongahela C. Ry. Co. (1890)
1 OF ALLEGHENY COUNTY. No. 234 October Term 1889, Sup. Ct.; court below, No. 306 September Term 1888, C. P. No. 1. On July 11, 1888, J. P. Fisher brought trespass against the Monongahela Connecting Railway Company, to recover damages for personal injuries alleged to have been sustained by him in consequence of negligence of the defendant. The defendant’s plea was not guilty.
131 Pa. 298Thomas v. Hukill (1890)
APPEAL BY PLAINTIEES EROM THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY, IN EQUITY. No. 235 October Term 1889, Sup. Ct.; court below, No. 351 July Term 1889, C. P. No. 2. in Equity. On July 8, 1889, T. R. Thomas, J. B. VanWagner, F. G. Milliken and G. V. Milliken filed a bill in equity against E. M. Hukill, averring in substance as follows: 1. On August 11, 1885, William P. Core, of the county of Monongalia, state of West Virginia, executed and delivered to John Kennedy and J. W. Long, a lease for the sole purpose of drilling for oil and transporting the same, upon a certain tract of land situate in Cass township, Monongalia county, West Virginia, containing 131 acres. By writing dated September 29,1885, the lessees assigned the lease to E. M. Hukill. 2. The lease provided that the lessees should commence operations within one year from the execution thereof, or thereafter pay to the lessor $5.50 each month until work should be commenced; and a failure on the part of the lessees to comply with either one or the other of the above conditions should work an absolute forfeiture of the lease. E. M. Hukill, lessee, did not commence operations within one year from the date of the execution of the lease, nor did he pay to the lessor the sum of $5.50 a month; whereupon William P. Core, the lessor, declared the lease forfeited. 3. On March 7, 1888, William P. Core leased the above described property to O. B. Ryall, for the sole purpose of drilling for oil and gas for the term of two years, and as long thereafter as gas and oil were found in paying quantities. On March 10, 1888, O. B. Ryall, the lessee, transferred this lease to the plaintiffs; and the plaintiffs, since the making of the lease last mentioned, have fully complied with all its covenants and conditions. 4. That defendant, notwithstanding the forfeiture of his lease and the making of the new lease to the plaintiffs, asserts title to the premises under his forfeited lease, and has begun to drill for oil and gas for his own benefit, although he had received full notice from the plaintiffs of their title to the premises. 5. That at the time of the forfeiture of the defendant’s lease, the right to the property was of but little value; on account of recent discoveries, however, the right is now of great value; that the lease to the defendant is a cloud upon the title of the plaintiffs; that, under the term of their lease, the plaintiffs have no right to the possession of the premises, except for the purpose of drilling for oil and gas; nor have they yet entered for the purpose mentioned in their lease, and, therefore, have no remedy by action at law to determine the title to the gas and oil. 6. That the defendant is now drilling wells, and threatens to take from the premises of the plaintiffs the oil and gas, and by so doing is destroying, or greatly injuring the value of the plaintiffs’ right. 1'. That the plaintiffs, as well as the defendant, are citizens of the state of Pennsylvania and residents of the county of Allegheny. Upon these averments the plaintiffs prayed for relief, as follows: 1. For an injunction restraining the defendant, his agents and servants, from any further entry upon said premises, and from all further drilling or operation thereupon for oil or gas, and from assigning or transferring the lease. 2. For a decree declaring the said lease to defendant void and of no effect, and that the same be delivered up for cancellation; and 3. For general relief. On September 9, 1889, the plaintiffs, with leave of court, amended their bill of complaint by adding the following seetion: 8. That since the filing of the original bill, the defendant has drilled upon the premises of the plaintiffs two oil wells, from which are being taken 700 barrels of oil a day. The following prayer for relief was added: That an account may be taken by a master, appointed by the court, of the petroleum so produced and taken away by the defendant, that the value thereof may be assessed, and that the defendant may be decreed to pay over the sum so assessed to the plaintiffs. To the foregoing bill the defendant filed a demurrer, assigning the following as the grounds thereof: 1. The plaintiffs have not, in and by their said bill, made or stated such a case as doth or ought to entitle them to the relief thereby sought, or give the court jurisdiction in equity. 2. The subject matter of the controversy is situate in the state of West Virginia, and the complaint of the bill involves a question of title to, or possession of property situated in that state, and this court has no jurisdiction. 3. That the bill does not set forth that the lease of August 11, 1885, had been forfeited or declared forfeited, prior to the alleged lease of March 7, 1888. 4. The allegation in the bill, that defendant failed to pay $5.50 per month, may mean simply that payments were not made monthly or each month, and this would not work a forfeiture of the lease. 5. That if the conditions of the lease of August 11, 1885, were broken, as alleged, the lessor and not the plaintiffs, could take advantage of such breach or breaches. 6. The plaintiffs have an adequate remedy at law for the grievances complained of in the bill, and this court has no jurisdiction of the subject matter. On September 11, 1889, the court, Ewing, P. J., filed the following opinion: The fact that the land, concerning which the dispute arises in this case, lies in West Virginia, does not necessarily prevent jurisdiction of the dispute, the parties all being residents of this county and subject to the jurisdiction of the court. The question is, as to whether or not the questions as raised by the bill and demurrer are cognizable in equity. The demurrer admits all the allegations contained in the bill. The defendant’s lease or license to bore for oil was made August 11,1885. Ho covenanted to give to the lessor, Core, one ninth of the oil produced; to begin operations within one year from the execution of the lease, or thereafter to pay Core, the lessor, 85.50 per month, until work should be commenced ; and a failure on the part of said second party, Hukill, to comply with either one or the other of the foregoing conditions, shall work an absolute forfeiture of this lease. The bill asserts, and the demurrer admits, that the defendant, the lessee, wholly failed to commence operations for said purpose within one year from and after the date of the execution of said lease, and wholly failed thereafter to pay to the said lessor the sum of $5.50 per month; that the said William P. Core thereafter declared the lease forfeited, and that on March 7, 1888, the said W. P. Core granted, demised and leased the said premises for the purpose of drilling for oil, etc., to O. B. Ryall, the assignor of plaintiffs. This being so, we are of the opinion that the first lease was forfeited. The bill is an assertion that at no time up to the filing of the bill was the $5.50 paid; “ wholly failed thereafter to pay.” It is possible that the lessor, while he held the entire title, might have sued and recovered the $5.50 per month, but the making a new lease in March, 1888, was acting on the condition in the lease of 1885, which on failure ipso facto made it absolutely void. We have then a lease held by the complainants which entitles them to enter on this tract of land and bore for oil and gas. And the defendant is a trespasser boring for and obtaining oil. It is not pretended that the defendant is now or is likely to be insolvent. We are of the opinion that the plaintiffs have an adequate remedy at law, either by an action of ejectment in the courts of West Virginia, or by an action at law for damages. See Code of West Va., 682, § 5; and provisions for recovering damages. This case seems to us to be governed by the case of Stewart’s App., 78 Pa. 88, and kindred cases. Decree : This case came on to be heard on bill of complainants and demurrer of defendant and, after argument by counsel and after consideration, it is now, September 11,1889, adjudged and decreed that the bill of complainants be, and it is hereby dismissed for want of jurisdiction in that the complainants have an adequate remedy at law. The foregoing decree having been entered, the plaintiffs took this appeal, specifying that the court erred: 1. In dismissing the bill. 2. In making the said decree. 8. In not overruling .the defendant’s demurrer, and in making the decree as prayed for in the plaintiffs’ bill.
131 Pa. 304Barr v. McFall (1890)
131 Pa. 305Friend v. City of Pittsburgh (1890)
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 244 October Term 1889, Sup. Ct.; court below, No. 585 March Term 1888, C. P. No. 1. On February 11, 1888, John W. Friend brought assumpsit against the city of Pittsburgh upon a municipal bond issued by the defendant. The plea was non-assumpsit. At the trial on May 8,1889, the plaintiff recovered a verdict for $3,431.34, which the court afterwards set aside, granting a new trial upon motion of the defendant. At the second trial on September 23, 1889, the following facts were shown: By the act of April 2,1869, P. L. 634, the borough of Temperaneeville, in Allegheny county, was authorized and required, in certain circumstances, to issue to property owners its bonds, payable in ten equal annual instalments, without interest, for the amount of certain paving and sewer assessments which such owners were required to advance to it. The act of April 2, 1872, P. L. 743, annexed said borough and certain other districts to the city of Pittsburgh and made them part thereof, extending to the districts so annexed the provisions of the act of May 10,1871, P. L. 718, relative to the payment of the indebtedness of municipalities admitted into said city. In pursuance of this legislation, the city, by ordinance of councils, assumed the municipal debt and liabilities of each of the boroughs embraced in said consolidation act of 1872. By § 13, act of March 20,1873, P. L. 325, it was provided that any contracts which had been entered into by any of the boroughs mentioned in said act of 1872, should be carried out by the city of Pittsburgh, and the cost of the improvements assessed and collected by and in the name of the city, in the manner prescribed in the laws for street improvements in the said respective boroughs. On May 12, 1873, an ordinance was enacted by the city councils directing the issue of bonds, in the name of the city of Pittsburgh, for the amount of the grading, paving and curbing of "Walnut aird Main streets in the late borough of Temperanceville, in accordance with the act of March 20, 1873. Thereupon the city of Pittsburgh issued in pursuance of this ordinance, under its corporate seal, seventy bonds aggregating $58,189.10, all payable in ten annual instalments, without interest, the date of payment in each year being the first day of October. Among these was the bond in suit which was issued to Woods & Brown for $2,137.92, on October 1, 1873. In December, 1887, or January, 1888, Woods & Brown assigned this bond, by writing under seal indorsed thereon, to the plaintiff. Having offered in evidence tbe bond and assignment thereof, and shown the authority for its issue, the plaintiff rested. The defendant then adduced evidence tending to show that there had been no presentation of the bond at the city treasury until in 1887 or 1888, shortly before this suit was brought, when there was money in the treasury to meet it; and that the defendant offered to pay to the plaintiff the amount of the principal, which the latter refused to accept, claiming interest on each instalment from the date of its maturity. In rebuttal, the plaintiff called witnesses whose testimony tended to show that the yearly provision made by the city for the payment of the maturing instalments of the Temperance-ville street bonds, was insufficient in amount, and that at different times, in different years, the city officers refused to pay the sums due upon bonds belonging to this series, upon the ground that there was no money in the treasury for that purpose. Testimony in sur-rebuttal for the defendant tended to show that in 1880, and continuously thereafter, the city had in the treasury ample funds, provided for and appropriated to the payment of these bonds. At the conclusion of the testimony the court, Slagle, J., charged the jury in part as follows: The plaintiff claims that these obligations bear interest from their maturity, whether they were presented or not, and whether or not the city had money provided for payment; that it was their duty to seek the creditor and pay, and if they did not do so, the obligation bore interest. That was his theory of the case. On the other hand, counsel for defendant claim that they were not liable for interest, in any event, until presentation and refusal. Now these are the two propositions of law. I think they are both wrong, and I will so instruct you when I come to the!1 points. I may say here that the city is not liable for the payment of interest on these obligations before maturity, because the bond itself provides it shall be without interest. After maturity, the liability for interest depends upon two facts; first, a presentation and refusal; or, in the absence of that, it appearing in evidence (the burden being on the plaintiff), that they had not money sufficient to pay these bonds. In the first place, there is no dispute between the parties as to the validity of this bond. It was issued by the city of Pittsburgh, admittedly under proper authority, and was a valid and binding obligation of the city of Pittsburgh. Under the act of assembly under which it was issued it was to be without interest up until the maturity of each instalment. I further say to you that after maturity these obligations would bear interest as each instalment fell due, if not paid. But it would not bear interest if the city of Pittsburgh had provided the means for payment, unless it was presented and payment refused. It is not alleged that it was presented until 1887 or 1888, and therefore the question, and the only question of fact in the case, is whether or not the city had-made provision for the payment of these bonds and had money in the treasury, and would have paid them, was ready to pay them if presented. That is the only question for you to determine. The evidence is, as I have said, that the two issues of these bonds amounted to $58,000; that the levy of taxes and the appropriation for their payment amounted in no year to $58,000. Therefore, prima facie, the city did not provide for the payment of all these bonds, and they were bound to provide for all of them. You may presume that if they made no provision for the payment of the whole of the bonds, that this one would not have been paid if it was presented; and therefore the city would be liable to pay interest on these‘bonds, if that is the fact. And there is no evidence of any provision having been made up to a certain period except this appropriation. The city would be liable to pay interest upon those several instalments as they came due, from the time they were due until provision had been made for their payment. If this was a single obligation and payable all at one time, and provision was not made for it at the time it fell due, then in order to relieve themselves of interest they would have to notify the party when they were ready to pay.....' But these bdnds were not payable all at one time; they were payable in instalments; and the final payment on the hond became due on October 1, 1888. Now, prior to 1880, as I say, the testimony would indicate that they were not prepared to pay these bonds..... [But if the city, before the final maturity of these bonds, had the money, then it was the duty of the plaintiff to present the bond for payment. They were presentable every year; an instalment came due every year, and because one instalment was not paid, that would not excuse them for not making a demand for a second instalment. Therefore, up until the maturity of the bond, it was the duty of the holder of it to present it, in order to entitle him to interest. And if, before the final payment became due, the city had provided means for paying it, and had the money in the treasury, and kept it in the treasury all the time, from that time up until the final demand was made, then the interest would stop from the time they were prepared to pay it.] 9 Now, then, I think (but that is a question of fact for you, of course), that prior to 1880 there is not sufficient evidence to justify you in finding that the city was prepared to pay these bonds as they came due. But Mr. Davis says that in 1880 a loan was made of $30,000, and put to the credit of this fund for the purpose of paying these bonds; and from that time on they had sufficient money at all times to pay all these obligations.....[If that is believed, then the city had provided in 1880 for the payment of these bonds, and a party failing to present them, would not be entitled to receive interest from that time on.] 9 He would be entitled to receive interest prior to that date..... [Therefore, as I say, the simple question is this: Did the city of Pittsburgh provide the means for the payment of these bonds ? If she did, before the maturity of the bond, that is by the maturity of the last payment, then the interest would stop from that date, and you will fix the time when that provision was made. As I have said before, the evidence does not satisfy me that a provision was made before 1880. It is a question of fact, however, for you, and you will fix the time, and allow interest on the instalment from the time it came due, up until the time that you find that the city had provided for the payment of the bonds. That is all the interest the plaintiff is entitled to in this case, in my judgment. If 1 am wrong, I have put it on record plainly, so that it may be corrected.] 10 Counsel for plaintiff has asked me to say to you: 1. That the bond in suit being payable to Woods & Brown, or assigns, without specifying any place of payment, it was the duty of the defendant to seek the obligees, or their assigns, and tender payment to them of the several instalments of the bond as they became due and payable ; and that if the defendant failed or neglected to do this, it became liable to them, or their assigns, for interest on the several instalments from the time each became due. Answer: This is refused. It would be impracticable for a municipal corporation to seek its creditors to tender payment. It would involve the necessity of the treasurer carrying the funds of the city all over the country, which is certainly not feasible.1 2. That the bond sued upon being payable to Woods & Brown, of assigns, without specifying any place of payment, it was the duty of the defendant to seek the obligees, or their assigns, and tender payment to them of the several instalments of the bond as they became due; and there being no evidence of any such tender, or of any subsequent tender of the amounts due, with interest thereon from the time they became payable, or of any payments thereon, or of any search by the defendant for the said Woods & Brown, or their assigns, the plaintiff is entitled to recover the amount of the bond, with interest on each of the several instalments from the time they were payable to the date of the verdict. Answer: Refused for the same reason.8 8. There being no place of payment specified in the bond sued on, mere ability and readiness to pay on the part of the defendant, without more, will not relieve it from liability for interest on the several instalments of the bond from the time they severally became due. Answer: Refused for the same reason.3 If the court should refuse to charge as above requested, it is requested to charge: 4. That the bond in suit being one of a number of similar bonds issued by the defendant city under the ordinance of May 12, 1873, in evidence, for the amount of the cost of grading, paving and curbing of Walnut and Main streets, in the late borough of Temperanceville, all bearing the same date and payable in annual instalments at the same times, it was the duty of the defendant city to appropriate by ordinance a sufficient sum annually to pay the instalments of all of said bonds as they became due; and if it failed to make such appropriation the city was in default, and became liable for interest on all sucli instalments remaining unpaid, from the time they became due. Answer : Affirmed; but if money for payment was provided in any way, by loan or otherwise, that would be a sufficient appropriation so far as plaintiff was concerned.6 5. That in order to relieve the defendant from liability for interest on the several instalments of the bond sued on, from the time they became due, the jury must be satisfied from the evidence that the defendant had, on each of the days the several instalments of this bond became due, money in its treasury applicable to the payment of the bonds of the same issue, sufficient to pay all the instalments of such bonds then due and payable, and at all times afterwards continued to have in its treasury money applicable to that purpose sufficient to pay ail of said instalments of said bonds, as well as of the bond in suit. Answer: Affirmed; but if the defendant had sufficient money to pay the bonds and accrued interest at any time before the maturity of the last instalment and continued to do so, the interest would cease from the time such money was so provided.* 6. That only such moneys in the treasury of the city as had - been appropriated by ordinance to the payment of said bonds was applicable to that purpose, and only such moneys could be legally drawn from the city treasury to pay them. Answer: Refused. The mode of providing the money cannot be questioned in this case, the only question being whether or not the money was provided.8 Counsel for defendant city respectfully ask the court to charge the jury: 1. That in tlxe absence of any place of payment being specifically fixed in the bonds or obligations of a municipal corporation, the law fixes such place at the treasury thereof. Answer: Affirmed.4 2. That it is the duty of the holder of such municipal warrants, bonds, or other obligations, to present the same for payment ;>t maturity at the place fixed by law for the payment thereof. Answer: Affirmed.5 There was one other matter spoken of by counsel which I ■forgot. [It was argued that because the city did not offer to ■.pay the interest that was actually due, they would, therefore, be liable. In order that counsel may have the benefit of an error if I make one, I say to jmu that that is not correct. The plaintiff demanded interest on the bond from the maturity of each instalment up to date. If his demand was larger than he was entitléd to, the city’s offer was possibly less than they were bound to pay, but that does not affect the question of the rights of the parties in the matter.]'11 The .jury rendered a verdict in favor of the plaintiff ior 12,263.80 and judgment was entered thereon, whereupon the plaintiff took this appeal, assigning for error: 1-3. The answers-to plaintiff’s points.1 to 3 4, 5. The answers to defendant’s points.4 3 6-8. The answers to plaintiff’s points.6 to 8 9-11. The parts of the charge embraced in [ ]9toU
131 Pa. 318Bell v. Farmers D. N. Bank (1890)
APPEAL BY PLAINTIEE EROM THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY, IN EQUITY. No. 247 October Term 1889, Sup. Ct.; court below, No. 26 March Term 1884, C. P. No. 1, in Equity. On January 4, 1881, Thompson Bell filed a bill in equity against the Farmers Deposit National Bank, and James Marshall, Jr., Thomas M. Marshall, Mark W. Watson and Matilda Marshall, executors of the last will and testament of James Marshall, deceased, averring in substance : (1) That one James Marshall, by his will dated May 23, 1867, admitted to probate on September 27,1869, appointed James Marshall, Jr., Thomas M. Marshall, Mark W. Watson and Matilda Marshall, executors ; (2) that, by a paper dated April 1,1874, the other executors authorized James Marshall, Jr., to assign, transfer and hypothecate stocks belonging to the estate, and to do and perform all necessary business of the estate; (3) that on January 10,1883, the said James Marshall, Jr., borrowed from Thompson Bell, the plaintiff, for the purposes of the estate, the sum of $20,000 and delivered as a pledge for payment of said debt, a certificate for 80 shares of the capital stock of the Farmers Deposit National Bank, bearing date December 18,1882, and issued to James Marshall’s estate, together with a note and power of attorney to sell said stock in case of default of payment of said note; (4) that said note was not paid at maturity, and, after notice, the said Bell sold said stock at public sale and became purchaser thereof; (5) that demand was made oil the Farmers’ Deposit National Bank to permit a transfer of the stock but said bank refused to permit any transfer to be made, giving as a reason that Thomas M. Marshall, M. W. Watson and Matilda Marshall, as executors of Janies Marshall, deceased, claimed the stock. Upon said averments the prayers for relief were, that the plaintiff be decreed to be the lawful owner of said stock; that the defendant bank be ordered to transfer the stock to the plaintiff upon its books and issue him a certificate therefor in his own name; and for general relief. The bank answered, admitting the issue of a stock certificate to James Marshall’s estate; a demand by the plaintiff for a transfer of said stock, and the refusal of the bank to permit such transfer, because of a notice received from .some of the beneficiaries under the will of James Marshall, deceased, and from the trustees under said will. The answer of- the executors of James Marshall, deceased, other than. James Marshall, Jr., averred, upon information and belief, that the transaction referred to in the bill was in substance a borrowing by James Marshall, Jr., doing business as James Marshall & Co., for the purposes of the business of James Marshall & Co.; that the money borrowed was paid by the plaintiff to the firm of James Marshall & Co., with knowledge that the loan was made for the use and benefit of that firm, in which neither of the respondents, nor the estate, was a partner; that the pledge of said stock by James Marshall Jr., to the plaintiff for said loan was without authority and void. James Marshall, Jr., filed a separate answer, the third paragraph whereof was as follows: “ 3. I deny the allegations of the third paragraph of the bill, and state that the facte of the transaction therein referred to, are as follows : I did borrow for the firm of James Marshall & Co. on the 10th day of January, 1883, from plaintiff, the sum of twenty thousand dollars (f>20,000), and I then gave to the. said plaintiff an acknowledgment of the indebtedness, a copy of which, marked Exhibit B, is annexed to the bill in this case; and I did then leave with the said plaintiff a certificate for eighty (80) shares of stock of- the Farmers Deposit National Bank of Pittsburgh, made -by the said bank in the name of ‘James Marshall’s Estate.’ I cannot from memory give the exact form and wording of the said certificate, but the same is now in possession of the plaintiff. The said stock belonged to the said James Marshall at the time of his death, which death occurred on the 9th day of September, 1869. The plaintiff knew that the money was borrowed for the firm of James Marshall &'Co., and the fact of how the note was to be drawn was a matter discussed with the plaintiff prior to the preparation of the same; it was signed by James Marshall, acting executor, because the stock in the bank stood in the name, of the said decedent, James Marshall, and the note was a stock note; that is, a form prepared for the purpose of pledging stock.” After the filing of the answers, the plaintiff died, and Emma M. Bell and James M. Bell, his executors, were submitted as plaintiffs. Subsequently, issue having been joined, the cause was referred to Mr. Henry It. Ewing, appointed examiner and master. At the hearing before the master, James Marshall, Jr., one of the defendants, was offered as a witness in their behalf, the defendants showing that he had been dismissed by the Orphans’ Court from the position of executor and trustee under the will of James Marshall, deceased, and that the other executors and trustees, and all the legatees and devisees under said will, had released him from liability to the estate in respect of the matters involved in this case; whereupon the plaintiffs objected to his competency to testify. Upon the question thus raised, the master made the following ruling: The competency of James Marshall, Jr., depends on whethel his interest is adverse to the right of Thompson Bell. The stock in controversy in this case was part of the residuary estate of his father, James Marshall, deceased, and by the will of his father, James Marshall, Jr., was entitled to one fourth of said residuary estate. Therefore, he is undoubtedly interested in the estate of his father, James Marshall, and if that estate wins in this case, the amount to be distributed to his devisees, of whom James Marshall, Jr., is one, will be increased. But that is not the test. It is his relation to the estate of Thompson Bell that settles his competency or incompetency to testify in this case. In order to exclude his testimony, it is necessary to show that his interest is adverse; that is, against the right of Thompson Bell. In other words, to exclude his testimony his interest must be to see Thompson Bell lose his case. Now if Thompson Bell loses, although the estate of James Marshall is increased thereby, yet James Marshall, Jr., becomes personally liable to Thompson Bell’s estate for the whole of the $20,000 note given in evidence and which is the cause of the controversy in this case. He gave the note and received the money on it and unless Thompson Bell’s estate can hold James Marshall’s estate for the amount of it, his estate can hold James Marshall, Jr., personally. True, if Thompson Bell wins, James Marshall, Jr., becomes personally liable to his father’s estate for a misappropriation of its assets, but he is in the other event liable for the whole of the amount in controversy; and hence his interest cannot be to see Thompson Bell lose; that is, his interest is not adverse to that of Thompson Bell. Whatever effect the releases given James Marshall, Jr., by the other executors and trustees of James Marshall have— if they have any, is doubtful — would be to make the interest of James Marshall, Jr., in favor of the right of Thompson Bell. But the master is of opinion that the interest of James Marshall, Jr., is not adverse to the right of Thompson Bell and his evidence is admitted. —From the pleadings and evidence the master found the following facts: Prior and up to September 9, 1869, James Marshall, Sr., and James Marshall, Jr., carried on the foundry business in the city of Pittsburgh, under the firm name of James Marshall & Co., under a verbal agreement that James Marshall, Jr., was to receive one fourth the profits, but have no interest in the property. There was no certain time fixed when the partnership should end, and no agreement or arrangement for continuing the business after the death of either party. On the day above named James Marshall, Sr., died, leaving a will which was duly probated, whereby he gave to his wife, Matilda, his dwelling house for life and |4,000 per annum during her life, and all the balance of his estate he bequeathed as follows: “ 4. I bequeath to my executors all the balance of my estate, real, personal and mixed, to have and to hold the same in trust for the use and benefit of my children, viz: Harriet Watson, James, Julia and Anna Frances, making them all equal at twenty-one years of age, share and share alike; and should any of them die without lawful issue, their interest shall be equally distributed to the survivors or the heirs of my deceased children, by investing it for their benefit, or paying to them the proceeds, as I wish them, the executors, to be invested with full power to give or withhold as they think best for the interest of any or all of my children; and for the purpose of carrying out this, my purpose, I hereby authorize my executors to purchase and sell real estate at public or private sale, as they deem for the best interest of my children, and to hold it in trust for them, or give it to them as they regard their best interest.” Of his will he appointed as executors and trustees, his son, James Marshall, Jr., his wife, Matilda Marshall, his brother, Thomas M. Marshall, Esq., and his son-in-law, Mark W. Watson. All the executors qualified and filed an inventory in 1869, but never filed any account until after the failure of James Marshall, Jr., in 1883. James Marshall, Jr., was the acting executor, attending to all the business of the estate, the others taking little or no part in it; and in 1874 they executed a power of attorney authorizing him, inter alia, to make and execute all necessary bills, drafts or acceptances which pertain to the business of the estate, and to assign, transfer and hypothecate gas, water, or any other stock belonging to the estate, as security for any loan necessary to the purposes of the estate, and to do and perform all other necessary business of the estate for and in the names of the other executors. After the death of James Marshall, Sr., the business was carried on by James Marshall, Jr., in the same place and in the same name, from 1869 to 1883, the son keeping the books and accounts the same as before, crediting the estate regularly with three fourths of the profits, etc., using the realty and personalty without paying any rent or charging rent on the books, or paying for, or making any account of the personalty; and none of the other executors and trustees or any of the cestuis que trust under the will of James Marshall authorized or had any knowledge of these transactions while they were going on. During the period from the death of James Marshall, Sr., in 1869, to the failure of James Marshall, Jr., in 1883, James Marshall, Jr., collected all income due his father’s estate from all sources, except from the real estate used by the firm; kept a separate account of it in the Farmers Deposit N. Bank and from time to time paid over portions of it to his mother and sisters for their support. While the transactions of the firm were carried on by him on the presumption that the estate of his father was interested in the firm to thé extent of three fourths of the profits, there never were actually any of the profits of the firm paid to the estate, and none of the cestuis que trust under the will of James Marshall ever received any of the profits of the firm, made after his death. James Marshall, Jr., made an assignment of his property for the benefit of creditors on April 16, 1883, and on April 30, 1887, was discharged by the Orphans’ Court of the county of Allegheny from his position as executor and trustee under the will of his father. At the time of the assignment there was a large amount of the income of the estate of his father not paid over by him to the cestuis que trust. All the debts of James Marshall were paid before 1876. Among.the assets of his estate were certain shares of stock of the Farmers Deposit N. Bank. A certificate for 80 of the shares was issued in the name of the estate of James Marshall under date December 18, 1882. On January 10, 1883, James Marshall, Jr., gave to Thompson Bell a note for $20,000 payable on demand, and at the same time pledged, as collateral security therefor, said certificate of stock, and received from Bell $20,000 in cash, or its equivalent. The proceeds of this note were used by the firm of James Marshall & Co., and at the time of lending the money and taking the security aforesaid, Bell knew that it was the intention of James Marshall, Jr., so to use the money. The note being unpaid on April 18,1883, demand was made on the bank for a transfer of the stock to the name of Thompson Bell, which was refused, and on April 24, 1883, the note was duly protested for non-payment. The stock was then put up at public sale, after public advertisement, and sold to Thompson Bell, and demand again made on the bank for transfer, which was again refused, the reason given being that it had received from the executors of the will of James Marshall, deceased, notice not to permit such transfer. Thereupon Thompson Bell filed this bill. Upon the facts so found by him, the master reported his opinion in part as follows : The case of the First N. Bank’s App., 19 W. N. 309, decided: 1. That at the death of James Marshall, Sr., the firm of James Marshall & Co., was dissolved. 2. That the estate of James Marshall, Sr., was not in the firm of James Marshall & Co., after his death. 3. That James Marshall, Jr., as executor, had no right to pledge the assets of his father’s estate as security for loans made to the firm. 4. That any party taking these assets as security for loans to the firm, with knowledge that the money loaned was to be used for the purposes of the firm, could not compel a transfer to themselves of such assets. 5. That the executors and trustees, under the will of James Marshall, Sr., could defend in behalf of the innocent cestuis que trust, in a suit brought by such pledgee to compel a transfer. The master considers it unnecessary to again discuss the reasons for the decision in that case and the law upon which it is decided. It was decided upon good reason, and after a full discussion of the authorities bearing on the law of the case. In this case, then, Thompson Bell loaned $20,000 to James Marshall, Jr., and took as security therefor 80 shares of the stock of the Farmers Deposit N. Bank, part of the assets of the estate of James Marshall, deceased. The money loaned was used for the purposes of the firm of James Marshall & Co., and the master has found that at the time the loan was made and the security taken, Thompson Bell knew that the money was to be used for the purposes of that firm. It seems to the master, and he so decides, that the First N. Bank’s App., supra, entirely covers this case and rules it, and if his findings of fact are correct, this bill should be dismissed. As to why he finds the facts as he has found them, he suggests the following: The only controversy in this case is as to the purpose of the loan from Bell to Marshall. Bell alleges that he loaned the money for the purposes of the estate of J ames Marshall, deceased, while the Marshall executors allege -that the money was borrowed for the firm of James Marshall & Co. That all the money borrowed was actually used for the purposes of the firm, is undoubted..... On the question of the knowledge of such use by Thompson Bell at the time the loan was made, the only testimony we have is that of James Marshall, Jr..... From this testimony the master has found as a fact that Thompson Bell, at the time he made the loan of $20,000, and took as security the stock in controversy, knew that the money loaned was to be used for the purposes of the firm of James Marshall & Co. But aside from and outside of the testimony of James Marshall, Jr., if he is not a competent witness in this case, there is ample evidence to show that Thompson Bell knew of the improper use of the proceeds of the $20,000 note. His books produced in evidence, show that the money was by him loaned to James Marshall & Co. .... The testimony of Oliver Wylie is to the effect, that he is familiar with the notes discounted for James Marshall & Co. by Thompson Bell, from 1876 to 1883, and in every case, no matter how the notes were drawn up, if James Marshall & Co. received the money on them, they were indorsed in red ink, “ James Marshall & Co.” The note in suit is so indorsed, and this is persuasive as to the knowledge of Thompson Bell as to the use to be made of the money loaned on this note..... But, taking the case simply on the pleadings, if the answers or any one of them are. responsive to the bill, the case of complainant falls. The complainant has alleged that he loaned the money for the purposes of the estate of James Marshall, deceased, but he has introduced no evidence to show for what purpose he loaned the money. The evidence of complainant shows only that he loaned to James Marshall, Jr., the $20,000 but shows no use for which it was loaned. All the evidence in the case as to what use the money was actually put, or to what use it was intended to be put, at the time it was loaned, was introduced by the defendants. There is nothing, therefore, in complainants’ case to offset the allegations of the defendants’ answers if they or any of them are responsive to the bill. The answer of M. W. Watson, Thomas M. Marshall and Matilda Marshall being made only on information and belief, is not responsive. The mere denial of James Marshall, Jr., would not make his answer responsive, but he goes further. He admits the loan and pledge, as set forth in the bill, but states that the purpose was different from that alleged by Bell, and that Bell knew that it was for a different purpose than what he alleged in his bill, as the matter was discussed between them at the time the loan was made, and that the note was drawn as.it was in order to hold the estate. The master is of opinion that this answer is responsive to the bill. It sets up no new contract, but admits the contract was made as set forth by the complainant, and denies a matter entirely outside of the contract itself. The purpose of making a contract is entirely outside of the actual contract. It is not the contract itself, but an incident to the contract. That such an answer is responsive is ruled in Pusey v. Wright, 31 Pa. 387, and Eaton’s App., 66 Pa. 483. That the answer of James Marshall, Jr., is evidence for his co-defendants, is clearly ruled in Mills v. Gore, 20 Pick. 34. But while the defence in this case can be made for the innocent cestuis que trust under the will of James Marshall, deceased, it cannot be made for James Marshall, Jr. He signed the note and received the money on it, and has no equities, as far as his own share of the stock is concerned, against Thompson Beil’s estate. The circumstances in this case, as far as his share is concerned, are not different from those in the case of the First N. Bank’s App., supra, and the decree should be the same as to it. For these reasons, the master recommends that the plaintiff’s bill be dismissed at plaintiff’s cost, except as to the share of James Marshall, Jr., in the stock in controversy, which should be held hy the executors and trustees under the will of J ames Marshall, deceased, subject to any rights which the plaintiffs have to claim and take the share, or interest, which the Orphans’ Court, on final distribution of the estate of James Marshall, deceased, may determine as coming to James Marshall, Jr., out of or from the shares of stock in controversy in this case. Exceptions to the report of the master were filed with and overruled by him and afterwards renewed before the court. After argument, the report was confirmed in the following opinion by Stowií, P. J.: “ After a careful consideration of this cause I am unable to sustain any of the exceptions to the master’s report. I fully concur in every respect with the views expressed by him. I also think the form of decree suggested is proper under the circumstances. The exceptions filed to said report by plaintiffs’ counsel are therefore overruled and the report of the master is now confirmed. Decree to be prepared by counsel as recommended.” The court then signed a formal decree, dismissing the bill at the cost of the plaintiffs; declaring the stock pledged to Thompson Bell the property of the estate of James Marshall, deceased, and ordering that the certificate therefor be delivered to the trustees of said estate, to be held by them subject to any right which the plaintiffs had to claim and take the share or interest, which the Orphans’ Court, on final distribution of the estate of James Marshall, deceased, may determine as coming to James Marshall, Jr., out of or from the said shares of stock. Thereupon the plaintiffs took this appeal, specifying that the court erred: 1, 2. In sustaining the master’s rulings respecting the competency to testify and respecting the effect of the answer of James Marshall, Jr. 3. In dismissing the bill. 5. In not sustaining the bill, at least so far as the interest of James Marshall, Jr., was concerned. 6. In imposing the costs upon the plaintiffs.
131 Pa. 333Estate of Laughlin (1890)
131 Pa. 339McNeil v. U. O. of Golden Cross (1890)
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 251 October Term 1889, Sup. Ct.; court below, No. 828 June Term 1887, C. P. No. 1. On June 8,1889, a summons was served in an action of assumpsit brought by George W. McNeil, administrator c. t. a of Ross S. Beatty, deceased, against the Supreme Commandery United Order of the Golden Cross of the W orld, a foreign corporation doing business in the state of Pennsylvania, filing the following statement of claim: “ The plaintiff, by his attorney, files the following statement of his claim and cause of action against the defendant. He avers that said defendant is justly and legally indebted to him as administrator, cum testamento annexo, of the estate of Ross S. Beatty, deceased, in the sum of two thousand dollars, with interest from May 16, 1887. Said indebtedness arises as follows : “ Said defendant is a foreign corporation, organized for the purpose, inter alia, of insuring the lives of all persons admitted to membership therein ; and for the purpose of promoting and carrying on its business, said corporation established agencies in the state of Pennsylvania, and having said agencies located in the county of Allegheny, in said state, and duly constituted and appointed agents in .charge thereof, who receive compensation for their services as such. “ That said Ross S. Beatty became and was for several years prior to his death, a member of said corporation in good standing, and received from it a policy of life insurance, called a Benefit Certificate, on his life, which certificate or policy was numbered 514, and was made payable to Clara B. Beatty, wife of said Ross S. The said Ross S. Beatty died on the 16th day of May, A. d. 1887, having first made his last will and testament, since duly probated, by which he devised and bequeathed his estate, after payment of debts, to said Clara B. Beatty, and letters of administration, c. t. a., were afterwards duly issued to plaintiff. Said Beatty was at the time of his death a member of defendant corporation, in good standing, and the policy of insurance No. 514 was in full force. “ Said defendant has, notwithstanding these facts, refused to pay said insurance to said Clara B. Beatty, alleging and claiming as its ground for such refusal, that said Ross S. Beatty had absolute, full and entire control of said policy, and of the disposition of the proceeds thereof, and that the title thereto remained in him and subject to his control until his death, and that Clara B. Beatty had and has no title to or interest in the same. And said defendant also refuses to pay over to plaintiff as administrator c. t. a., the proceeds of said policy, alleging that he has no interest therein. “ Plaintiff' avers that said policy is part of decedent’s estate and that the whole amount now claimed by him is due and payable. He further says that said Ross S. Beatty was at his death wholly insolvent and left no estate, other than the insurance above mentioned, for payment of his debts, funeral expenses, etc. “ Affiant further avers that said defendant corporation admits the fact that said Ross S. Beatty was a member, was insured as stated, and that the policy mentioned was in full force at his death, and makes no objection to paying same, except upon the ground that plaintiff has no legal right to demand and receive payment thereof. He further says that he is informed and believes said policy of insurance is now in the hands of defendant company and he is unable to furnish a true copy thereof. And he avers that no part of said sum claimed has been paid, and the whole amount is now due.” To the foregoing statement the defendant demurred, assigning as ground, specially, that the certificate or policy No 514, upon account of which the suit was instituted, was made payable to Clara B. Beatty, wife of said Boss S. Beatty, and not to said Boss S. Beatty, or his representatives. The demurrer having been argued, the following opinion was filed, Slagle, J.: By the statement filed, it appears that the defendant company is a corporation organized for the purpose, inter alia, of insuring the lives of all persons admitted to membership therein; that Boss S. Beatty was a member in good standing, and received a benefit certificate, No. 514, which was made payable to his wife, Clara B.; that he died May 16,1887, having made his last will and testament, by which he devised and bequeathed his estate, after payment of his debts, to his wife Clara, and letters of administration were granted to plaintiff; that defendants refused to pay the money to Clara B. Beatty, alleging that she had no title or interest in the same, because said Boss S. Beatty had control of the same until his death, and now refuses to pay the same to plaintiff, alleging that he has no interest therein. To this statement the defendant has filed a demurrer. So far as the statement shows, there is no power in the assured to change the beneficiary at will, and the designation of his wife is an absolute gift to her, and it could not be revoked by will: Vollman’s App., 92 Pa. 50. It is true that the association might make a regulation providing for transfer, but then it could be transferred only in the mode prescribed: Same case. See also Fish v. Equitable Aid Union, 20 W. N. 290, and Beatty’s App. 122 Pa. 428. It would appear, therefore, from the facts as set forth in the statement, that the title to the certificate is in Clara B. Beatty, and suit could only be maintained by her. The fact that the company refused to pay her, alleging that the title and control remained in Boss S. Beatty would not give a right of action to plaintiff; first, because it is not necessarily an admission that it passed to the plaintiff by his will; second, because Clara B. Beatty not being a party to the suit would not be bound by the judgment, and third, because if the admission were clearly made that the title passed to plaintiff, there is no circumstance of estoppel in it. The demurrer must therefore be sustained. Subsequently, by leave of court the plaintiff filed an amendment to his statement which was as follows: “ And the said plaintiff further says that the title to said policy of insurance, No. 514, became and was vested in said Ross S. Beatty from and after the date thereof. That said Beatty claimed and exercised full and entire dominion over and control of said policy, and the title thereto remained and was in him (Beatty) until and at the date of his death.” The demurrer of the defendant having been renewed, with substantially the same grounds, the court ruled as follows: “ And now, October 4,1889, demurrer sustained. The amendment filed does not avoid the real question in the case. It is a statement of conclusions rather than of facts. Judgment will be entered for defendant.” Judgment having been entered for the defendant, the plaintiff took this appeal, assigning for error the orders sustaining the defendant’s demurrers and directing judgment to be entered for the defendant.
131 Pa. 343Dilworth v. Gusky (1890)
131 Pa. 346Estate of Nieman (1890)
FROM THE ORPHANS’ COURT OF ALLEGHENY COUNTY. . No. 254 October Term 1889, Sup. Ct.; court below, No. Ill May Term 1889, O. C. On May 29,1889, August Lauman and Johanna M. Nieman, executors of the will of Gerhardt E. Nieman, deceased, presented their petition praying for the allowance of an appeal from the decree of the register of wills assessing a collateral inheritance tax upon legacies and real estate bequeathed and devised by the will of said decedent.
131 Pa. 352Estate of Brown (1890)
131 Pa. 356Corcoran v. Chess (1890)
APPEAL BY PLAINTIFF FEOM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 240 October Term 1889, Sup. Ct.; court below, No. 69 October Term 1885, C. P. No. 2. On July 29, 1885, service was made of a summons in case in an action by James G. Corcoran against Harvey B. Chess and others, partners as Chess, Cook & Co. Issue. At the trial on February 26, 1889, it was shown that plaintiff made a bid for work on the defendants’ rolling-mill as follows: “ May 18, 1885, I propose to do the mason work for foundations, piers, etc., at your new works in Braddocks, according to the plans, and do it in a good and workmanlike manner, for 18.45 per cubic yard. Reference J. Wain wright, Esq., chief engineer P., McK. and Y. R. R. “ Jambs G. Cobcoban.” The bid was accepted by the defendants. After the work was done under the contract, a dispute arose between the parties as to the method of measurement of the piers erected, the plaintiff claiming pay according to “ masons’ measurement,”— taking the girth of the pier, adding thereto one half, and multiplying by the height. The defendants paid to the plaintiff the contract price for the actual number of cubic yards, the right to recover more being reserved by the defendants. The defendants introduced the testimony of masons, builders, architects, and civil engineers to the effect that since 1834 a usage had been observed generally in Allegheny county, applicable to three feet piers, to measure by a girth and a half multiplied by the height. Builders and contractors called for the plaintiff, testified to a knowledge of this rule of “ masons’ measurement,” and that they avoided it by special contracts. The court, Ewing, P. J., instructed the jury as follows: The defendants ask the court to charge: 1. That under all the evidence the verdict must be for the defendants. Answer: Affirmed.8 Custom may be sufficient to control a contract if there is a uniform, well established, well known custom, which has continued for so long a time and so uniformly that everybody contracting must be presumed to know that there is such a custom; in that case, the contract is to be interpreted in the light of the custom. If it appear that the defendants in this case understood or ought to have understood, that they were contracting to pay twice as much for the piers, as the written bid says they were to pay, it would bind them. I am not prepared to say that the alleged custom is bad for immorality; namely, a custom that without any contract, or with a contract, for so much a perch or so much a cubic yard, contractors are to pay for twice the amount of work actually done; but I do think that such a custom is calculated to lead to dishonesty and trickery, and to defrauding and extorting money from people who have such work done. This custom is not alleged to be general, but local in Pittsburgh, Allegheny and vicinity; one witness said, in Allegheny county, he thought. But the testimony shows, in my judgment, that it is not a uniform custom, and especially in Brad-docks, where this work was done; that is not the custom, which, if you believe the testimony, very largely preponderated against it. [The law does not, I believe, fix what a perch is, which seems to be the ordinary unit in contracting for common work. But a yard is defined by statute; it means three feet, and a cubic yard means twenty-seven cubic feet; and it being considered that the plaintiff has been paid at the rate of his bid for each and every cubic yard of twenty-seven cubic feet of work that he did, I instruct you that your verdict should be for the defendants.] 1 The jury returned a verdict in favor of the defendants. Judgment having been entered, the plaintiff took this appeal, assigning for error: 1. The portion of the charge in [ ]1 2. The refusal of the defendants’ point.8
131 Pa. 359Estate of McGregor (1890)
131 Pa. 362Maginn v. Dollar Savings Bank (1890)
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 264 October Term 1889, Sup. Ct.; court below, No. 1-8 December Term 1887, C. P. No. 1. On September 10, 1887, John Maginn brought assumpsit against the Dollar Savings Bank, to recover a check or order drawn upon the defendant by James McCartney, payable to the order of John Maginn, dated July 19, 1887, for $631. Issue. At tbe trial on May 22,1889, before Collier, J., the plaintiff testified that on July 19, 1887, he received the cheek in suit from James McCartney, stating the circumstances, under which he received it, as follows: “He told me he had money in the Dollar Savings Bank; he hadn’t enough to satisfy the full claim, and I told him I would take what was there and give him fair time for the balance. He said he thought he had in all about enough, and he went down to the Dollar Savings Bank, and the gentleman behind the counter that had charge of the books, he had his book there, whether M’Cartney carried the book there or not I do not know, and he had the book and went all through, and he had $681 in ; when M’Cartney made a note (check) and I retained M’Cartney’s note, only the bank said they had to have some one to guarantee he was the party had the money there.” He further testified that the check was one of the bank checks; was obtained in the bank building, and that one of the persons in the bank in charge of the books told him that the check would become payable in seven weeks. H. F. McGrady testified for the plaintiff that he presented the check on the day that it became due, and that payment was refused on the ground that McCartney had notified the bank not to pay the check. At the close of the plaintiff’s testimony in chief, the court on motion of the defendant entered judgment of nonsuit, with leave, etc. A rule to show cause why the judgment of non-suit should not be lifted was subsequently discharged, and judgment having been entered on the verdict, the plaintiff took this appeal, assigning for error the orders entering the judgment of nonsuit and discharging the rule to show cause why the judgment should not be lifted.
131 Pa. 365Incorporation of Wilkinsburg Borough (1889)
131 Pa. 368Incorporation of Wilkinsburg Borough (1890)
APPEAL BY MARY SINGER FROM THE COURT OF QUARTER SESSIONS OF ALLEGHENY COUNTY. No. 266 October Term 1889, Sup. Ct.; court below, No. 1 December Term 1888, Misc. D. On December 8, 1888, Mrs. Mary Singer presented her petition representing in substance, that the petitioner was a resident freeholder of the borough of Wilkinsburg, incorporated to No. 40 March Term 1887, Misc. D., and was the owner of a tract of land in said borough, which was farming land described by metes and bounds and by plan attached; that her said land did not properly belong to the borough of Wilkinsburg; that the petitioner was the largest individual taxpayer in said borough, and that it would be injurious and burdensome to petitioner to allow her lands to remain in said borough; praying the court to so modify and change the boundaries of said borough as to exclude her land therefrom. A rule having been granted, exceptions were filed on behalf of the borough which were as follows: 1. The petition is defective in that it is not signed by Mary Singer in her own proper person. ■ 2. It is defective in that it does not set forth “ a particular description of the boundaries of the borough,” after the proposed alteration, “exhibiting the courses and distances in words at length,” as required by the act of April 1, 1884, P. L. 163, relating to the change of limits of any incorporated borough. 3. There is no act of assembly authorizing an individual freeholder to have the boundary lines of an incorporated borough altered as proposed in this petition. 4. The petitioner, if her land be farm land, as alleged, had her remedy under the act of April 1, 1863, § 1, P. L. 200, while the proceedings for the incorporation of the borough were pending. If she was guilty of laches then, the court will not aid her now. 5. The matter is res judicata, a similar petition on the part of the petitioner having been refused at No. 40 March Term 1887, of this court. On September 28,1889, after argument, the court entered an order discharging the rule and dismissing the petition, opinion by Stowe, P. J. Thereupon the petitioner took this appeal, specifying that the court erred in refusing to grant the prayer of the petitioner, and in the order discharging the rule to show cause.
131 Pa. 370Warner v. McMullin (1890)
2 OP ALLEGHENY COUNTY, IN EQUITY. No. 236 October Term 1888, Sup. Ct.; court below, No. 166 July Term 1886, C. P. No. 2 in equity. On April 26, 1886, Henry Warner, assignee of the Penn Bank, for the benefit of ereditors, filed a bill in equity against M. K. McMullin, W. N. Riddle and John P. Beall.
131 Pa. 382Estate of Rogers (1890)
APPEAL BY FRANCIS ROGERS ET AL. PROM THE ORPHANS’ COURT OF ALLEGHENY COUNTY. No. 71 October Term 1889, Sup. Ct.; court below, No. 158 June Term 1888, O. C. On July 6, 3888, the account of James E. Walker, executor of tlie will of Mary Rogers, deceased, was called for audit. Neither the will of the decedent, nor the testimony taken at the audit was printed in the paper-books, but it was stated in the paper-book of the appellant that Mary Rogers died on December 8, 1886, leaving a will in which some bequests were made, but as to the balance for distribution in this proceeding she died intestate, unmarried and without issue, leaving to survive her no father or mother, brothers or sisters, uncles or aunts. She left surviving, however, first cousins, who were the children of deceased uncles and aunts, and second cousins, who were the grandchildren of deceased uncles and aunts. The auditing judge distributed tlie fund accounted for to the first cousins of the deceased, to the exclusion of the second cousins. Exceptions were filed by Francis Rogers and others alleging that the auditing judge erred in awarding the fund to the first cousins to the exclusion of the second cousins, and further, that the fund should have been distributed among the first and second cousins, as the next of kin of the decedent. On February 13, 1889, the exceptions filed were dismissed by the court in banc, and the adjudication confirmed. Thereupon the exceptants took this appeal, assigning the decree of the court in banc as -error.
131 Pa. 385Howard Watch Co. v. Bedillion (1890)
APPEALS BY DEPENDANTS PROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY. Nos. 75, 76, 77, 78 October Term 1889, Sup. Ct.; court' below, Nos. 189, 212, 191 April Term 1887, and No. 43 July¡ Term 1887, C. P. No. 2. To tbe numbers and terms, respectively, in tbe court below, writs of execution attachment were issued by tbe Howard Watcb & Clock Co., the Wm. Rodgers Manufacturing Co., Simpson, Hall, Miller & Co., and Falkman, Oppenheimer & Co., upon judgments held by them, respectively, against T. P. Bedillion, in which writs Mrs. Hannah Bedillion, the wife of the judgment defendant, and J. U. Rose, trustee for her, were served as garnishees. Answers of the garnishees having been filed, the causes were put at issue under the plea of nulla bona. The facts made to appear at the trial of the cases together on December 20, 1888, sufficiently appear in the charge to the jury, White, J.: The plaintiffs’ claims are based upon execution attachments. Having obtained judgments in court, they issued executions, and finding no property that could be levied upon directly, as the property of the defendant, they served what are called attachments, upon Mr. Rose, who was acting as trustee for Mrs. Bedillion, and upon Mrs. Bedillion, attaching whatever property or money might be in their hands belonging to her husband, Thomas P. Bedillion. The defendants deny that they have any property belonging to T. P. Bedillion, or that they have any money belonging to him. The issue is, whether the property that Rose bought at sheriff’s sale, and the money he realized from that, belong to Mrs. Bedillion, or whether they are properly the money and property of T. P. Bedillion. In other words, as Rose claims to be acting as trustee for Mrs. Bedillion in those judgments upon which executions were issued and the property sold, the question is whether the judgments were valid judgments. If they were not valid judgments, then the sheriff’s sale on them amounts to nothing, and the property, or the money realized from it, would be subject to these execution attachments, and should go, as far as necessary, towards paying them. As I said, the issue here really is, are those judgments honest judgments ? That is the first question. Did Bedillion owe his wife the amount of those judgments ? , Mrs. Bedillion claims on three judgment notes, that were given her by her husband, one in November, 1884, for $20,000; <;)ne in July, 1886, for $5,000; and one in January, 1887, a day or two before these judgments were entered up, for something over $5,000. At the time the judgments were entered in court, on January 5,1887, counting the interest on the various judgment notes, the total claim was something over $86,000. The sheriff sold out Bedillion’s store, and his return shows that the whole of the property levied upon, sold for a little over $14,000. After deducting costs, and perhaps some other things connected with the sale, Rose, the trustee of Mrs. Bedillion, received from the sheriff a few cents less than $12,000. He afterwards received on collections from debtors of Bedillion, on execution attachments, and some bills that were paid, not covered by the execution attachments, over $3,800. In the neighborhood of $750 of that amount was collected on bills due to Bedillion not covered by the execution attachments. So that altogether the trustee received nearly $16,000. He bought the property at sheriff’s sale, and afterwards carried on the business, as he said, as trustee for Mrs. Bedillion. We have nothing to do with anything that occurred after the sheriff’s sale; I mean, with reference to the disposition of the property or what money was made from it. Our attention must be confined to the time these various notes were given, and the time the executions were issued, on January 5,1887. [Counsel for plaintiffs contend very strongly that these various judgment notes were given for more than was due Mrs. Bedillion; and it is pretty difficult to believe from the evidence in the case that those amounts were actually due to Mrs. Bedillion. I say, it is very difficult to figure out, from the evidence we have, that those sums were actually due by her husband to her at the time these various judgment notes were given. Mrs. Bedillion, in her own testimony, speaks about the $20,000 note given in November, 1884, and she could only account for in the neighborhood of $15,000, due her at that time. I think she said, substantially, that her husband gave her that note, saying that that would cover the $15,000, and anything else that he might owe her. I do not know that she definitely explained what went in as the consideration of the second note, of $5,000, given in July, 1886. As to the last note, given a few days before the judgments were entered up and executions issued, she does not pretend to say what went into that, but she says it was counted up in the lawyer’s office ; that her husband was there, and he and Mr. Barton, her lawyer, figured out that the judgment note should be for a little over $5,000.] 1 Plaintiff’s counsel have candidly admitted that there might have been in the neighborhood of $20,000 altogether due Mrs. Bedillion. They have admitted that, in order to avoid one question that might possibly arise, and that is, that Rose, as her trustee, did not receive more than the amount honestly due to Mrs. Bedillion. But the defendant’s counsel contend for the whole amount; that these judgment notes were given for the actual amount due at the time they were given. That is the position of the trustee here to-day, and the position of Mrs. Bedillion all along..... The first question, gentlemen, then for you to pass upon is this: Were these judgment notes given for more than was due Mrs. Bedillion at the time they were given? If you find that they were, then you pass to another question. But if you find that these amounts were honestly due to Mrs. Bedillion, at the time the judgment notes were given, that is the end of the plaintiff’s case, and your verdict ought to be for the defendants in each case. But if you find that the notes were in excess of the amount due to Mrs. Bedillion, then you pass to another question, viz.: If they were in excess, how came they to be in excess; was it a mere mistake on the part of Mr. Bedillion, or was it done with a fraudulent purpose ? I have said that even if he gave the notes for more than was actually due to his wife, and even if he contemplated a fraud at the time, yet if his wife took those notes in good faith, honestly believing that these sums were due from her husband to her, she would not be visited with the fraud of her husband; and that really, gentlemen, is the main point I think in this case: Was his wife acting in good faith when she took these various judgment notes ? Did she take them honestly believing that her husband owed her those sums ? A wife is justified in reposing a great deal of confidence in her husband. It is hardly to be expected that wives will be as strict and as exacting in their dealings with their husbands, as they would be with strangers. And yet they are bound to act honestly, and they must act in good faith. A wife has no right to take a judgment note from her husband for more than he owes her; and she ought not blindly to take a judgment note when her husband is in business, knowing that he is dealing 'with the world, and may owe other persons who may be affected by it. She has no right blindly to take a judgment note from her husband and just say, “ Well, he told me this is the amount that was due me and I believed him.” .... [I do not think, as counsel has said, Mrs. Bedillion intended to perpetrate a fraud, or intended to become a party to a fraud; yet she may, by her carelessness, become a party to the fraud of her husband, and in that way, a party to a fraud upon other honest creditors. If she knew that those judgments were large and might affect other creditors, and she knew enough to put her on inquiry and make her examine into it, and she did not do it, then she is presumed to have known what she ought to have known under the circumstances. If, therefore, you find that these judgment notes were in excess of the amount Bedillion owed his wife, and that she knew that fact, or ought to have known it, that there was reasonable ground for her knowing it, then she is visited with the fraud of her husband, and these judgments must stand aside for other creditors.] 1 If you find those facts, then you find for the plaintiffs, and your verdict would be for the plaintiffs for the full amount of their claims and costs, because there are ample funds in the hands of the trustee to pay them, or ought to be. Whether he has kept the money or paid it away, is immaterial. The court is requested by the plaintiffs to instruct the jury : 2. If the judgment notes given to J. U. Rose as trustee of Mrs. Bedillion, were for a larger sum than was actually due at the time from her husband to her, and she knew, or had reasonable cause to believe, that such was the fact, the plaintiffs are entitled to recover. Answer: Affirmed.8 The court is respectfully requested to charge on behalf of the defendants: 1. That the undisputed evidence is that Mrs. Bedillion loaned a large amount of money to her husband, exceeding in amount the total receipts of her trustee from sales. If the jury-believe this evidence, their verdict should be for the defendants. Answer: Refused, because of the question of fact submitted to the jury under plaintiffs’ second point.3 3. That if the jury believe from the evidence that Mrs. Bedillion honestly believed that her husband owed her the amount called for by the notes, the verdict should be for the defendants, even though there might be a mistake in the amount. Answer: This is affirmed, if there was simply a mistake in the amount; but if T. P. Bedillion fraudulently gave the notes to his wife in excess of the real sum due her, then the question arises, presented by plaintiffs’ second point, whether his wife knew, or had reasonable cause to believe, they were in excess of the actual amount due.4 5. That under all the evidence the verdict should be for the defendants. Answer: Refused.5 The jury returned verdicts as follows: In favor of the E. Howard Watch & Clock Co., for $426.27; in favor of the Wm. Rodgers Mfg. Co., for $1,845.22; in favor of Simpson, Hall, Miller & Co., for $486.17; in favor of Falkman, Oppenheimer & Co., for $1,698.21. Rules for a new trial having been discharged, judgments were entered, when the garnishees took these appeals, assigning for error: 1. The portions of the charge embraced in [ ] 1 2. The answer to the plaintiffs’ point.8 8-5. The answers to the defendants’ points.3 to 5
131 Pa. 393McElroy v. Nucleus Ass'n (1890)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY. No. 85 October Term 1889, Sup. Ct.; court below, No. 222 November Term 1887, C. P. On October 10, 1887, Catherine E. McElroy and R. T. McGrew brought assumpsit against the Nucleus Association of the Borough of Monougahola City, to recover the sum of $500, with interest from September 2,1884. The defendant pleaded non-assumpsit. At the trial on February 25,1889, the plaintiffs put in evidence the will of Robert McGrew, deceased, duly admitted to probate on June 10, 1841, and letters issued thereon to James McGrew, Minas Tin die and Maria McGrew, the executors therein named. The testator by his said will bequeathed and devised all his estate, real and personal, to his wife, Maria McGrew, during her natural life, or so long as she remained his widow; at the decease of his wife, his estate was to be divided equally between his two sons, James A. and Robert T. McGrew, and his daughter Catherine E. McGrew; and his executors were authorized, by and with the consent of his wife, to sell and convey all or any part of his real estate, as they might think most advantageous. The plaintiffs then put in evidence a deed executed by Maria McGrew and Minas Tindle, executors of Robert McGrew, deceased, to the Nucleus Association of the Borough of Monongahela City, dated April 7, 1869, duly recorded on February 23, 1870, conveying, in consideration of $500, a lot of ground in Monongahela City. They then offered in evidence a mortgage executed and acknowledged by “I. S. Crall, President,” and “ T. R. Hazzard, Secretary,” to the Nucleus Association of the Borough of Monongahela City, dated April 7, 1869, conveying the same property covered by the foregoing deed to secure the bond of the said association, as recited therein, “ conditioned for the payment of lawful interest semi-annually on the first days of October and April in each year, on the sum of five hundred dollars, to the said Maria McGrew, widow of the said Robert McGrew, deceased, during her natural life, and for the payment, within one year after the death of the said Maria McGrew, of the said principal sum of five hundred dollars, with interest thereon from the death of the said Maria McGrew, to the children of the said Robert McGrew, deceased, in his said will named, or their legal representatives, as in and by the said recited obligation and the condition thereof will more fully and at large appear.” The record offered showed that on December 19,1881, the president judge of the Court of Common Pleas had certified the allowance of satisfaction to be entered on said mortgage. To this offer the defendant objected: 1. That the paper offered in evidence was not signed or sealed by the defendant corporation. 2. That it was not authorized or directed by it. 3. That, if executed at all, it was not executed under any power possessed by that corporation; the persons whose names are signed thereto had no power officially or otherwise to bind the defendant corporation. 4. The said writing does not purport to be or contain a contract for the payment of the money. 5. The record is not sufficient to prove the execution of the mortgage. By the court: Offer refused; objection sustained, on the ground that the record does not sufficiently prove the execution of the mortgage. The plaintiff then adduced testimony as to the signatures of the attesting witness and of the persons executing the mortgage; that in 1869 Isaac Crall was president, and T. R. Hazzard was secretary of the defendant association, and that it had no common seal in 1869. The offer of the mortgage record was then renewed, when the objections were also renewed. By the court: Objections overruled; offer admitted; exception.1 The plaintiffs then showed that James A. McGrew had died in 1865, unmarried and without issue; that Mrs. Maria McGrew had died September 2, 1884; that the plaintiffs were the only living beneficiaries of the will of Robert McGrew, deceased, and that they had been paid no part of the sum secured to be paid by the said mortgage. The plaintiffs then rested. The defendant association, under objection and exception to the plaintiffs, put in evidence its charter of incorporation, which provided that the officers of the association should be five trustees, who should choose from among themselves a president, secretary and treasurer; that the said board of trustees should have charge of the funds and property of the association, to be disbursed and managed as they might be directed by the by-laws; that “ The trustees shall have power to purchase, take and hold to them and their successors and assigns, and of selling and transferring in fee-simple or for any less estate, such lands, tenements, and hereditaments, as shall be sold, devised, conveyed, or granted to them by deed, bequest or otherwise, . . . . ” The defendant then proved by the officers of the association that on December 17, 1881, its treasurer had paid the full debt and interest due upon the mortgage, heretofore mentioned, to Mr. T. H. Baird, the attorney for Maria McGrew, one of the executors of Robert McGrew, deceased, and that there was no record on the minutes of the association authorizing or recognizing the mortgage. At the close of the testimony, McIlvaine, P. J., charged the jury as follows: There appears to be little or no dispute as to the facts in the case. Both the plaintiffs’ and defendant’s counsel have asked me to hold that the case is one that must be determined by the court upon the admitted facts; and, as all the material facts in the case are undisputed, we are also of opinion that it is our duty to give you binding instructions, the real question in the case being, whether the payment of the $500 of purchase money to Mrs. McGrew, in 1881, discharged the defendants from liability under their contract entered into when they purchased the lot in question, or whether the plaintiffs have a right to collect the same from the defendants notwithstanding this payment. The defendant association admits that the lot was conveyed to them on April 7, 1869, the consideration being $500, and that they went into possession in pursuance of the conveyance made to them, and that they have been in possession ever since. They also admit, or at least do not deny, that the lot conveyed to them was the property of the testator, Robert McGrew, deceased, at the time of his death. They also admit that the interest on the $500 purchase money was paid to Mrs. McGrew regularly from 1869, up to December 17, 1881, and at that date, they paid $500 to Maria McGrew, Minas Tindle, the other grantor in the deed, having died in 1876. The treasurer of the association who paid Mrs. McGrew, admits that he saw the paper purporting to be the mortgage of the association which was offered in evidence, before he paid the $500, and that on account of the provisions of that paper he refused to pay the $500 unless the mortgage was satisfied; and he says the widow Maria McGrew signed the receipt indorsed on the paper when the money was paid, and that he paid the $500 in discharge of the debt secured by the mortgage. He also says that about the time he paid the $500, perhaps before he paid it, he received a letter from Mrs. McElroy, one of the plaintiffs, claiming that the $500 belonged to her and her brother, and not to the widow..... This paper or mortgage was not admitted in evidence as the obligation upon which suit was brought, for clearly an action of assumpsit could not be maintained upon it; and more than that, the suit in this case, according to .the plaintiffs’ statement, is not brought on this paper, but on the agreement which the defendant association entered into at the time they bought the lot, viz.: That they should pay $500 therefor, and which it is admitted was not paid at the time the deed was delivered. But the paper was simply admitted in evidence to show, so far as it would, how the $500 consideration money mentioned in the deed made to the association of. a lot in which Maria McGrew had a life-estate and the children of Robert McGrew, deceased, an interest as remaindermen, should be paid. To repeat somewhat. The association admit that they bought a lot of which Robert McGrew died seised, and went into possession in 1869. It is admitted that Robert McGrew, deceased, had been dead twenty-six or twenty-seven years when the lot was sold. It is admitted that $500 was to be paid for the lot. Under the will of Robert McGrew, deceased, the lot before sold belonged to Maria McGrew as life-tenant and the plaintiffs as remaindermen, with a power in the executors to sell if they thought it most advantageous. It is admitted that the $500 was not paid at the time of sale. The plaintiffs say that under the will they were entitled to the lot, or the purchase money for which it was sold, at the death of Maria McGréw, and [the mortgage was admitted in evidence to show that the association recognized the justice and legality of this claim, and that at the time the sale was made they agreed to hold the $500 for them and pay it to them one year after Mrs. McGrew’s death. Taking then into consideration the admitted facts, that Maria McGrew had only a life-interest in the lot, and the plaintiffs had an interest in it as remaindermen when it was sold, and that the widow could have no greater interest in the proceeds of sale of the lot than she could have in the lot itself, and the further fact that the association executed an instrument of writing at the time of sale purporting to be a mortgage on the property conveyed and given to secure the purchase money, and that in that paper it is provided that the $500 shall be paid to the children of Robert McGrew, deceased, named in his will, of whom the plaintiffs are the survivors, and that only the interest was to be paid to Mrs. McGrew, and the fact that the sale was made twenty-seven years after the testator’s death and therefore presumably not for the purpose of paying any of the debts of the testator, and the fact that for twelve years after the conveyance was made to the association, its treasurer paid Mrs. McGrew interest on the $500, and that one of the plaintiffs made claim to the treasurer of the association to the $500 before it was paid to Mrs. McGrew in 1881, we are of opinion that the plaintiffs are entitled to recover the amount of their claim, and that the payment of the $500 to Mrs. Maria McGrew, on December 17,1881, did not discharge the liability of the defendant association for the $500 purchase money for the lot conveyed to them by Maria McGrew and Minas Tindle on April 7, 1869; and therefore your verdict, gentlemen of the jury, will be in favor of the plaintiffs for $500, with interest from September 2, 1884, the date at which it is admitted Mrs. McGrew died.] 4 The defendant’s counsel asks us to charge you that your verdict should be for the defendant. This is refused.3 Plaintiffs’ counsel ask us to charge you that your verdict should be in favor of the plaintiffs for $500, with interest from September 2, 1884. This is affirmed.3 The jury returned a verdict in favor of the plaintiffs for $634.50. Judgment having been entered on the verdict, the defendant took this appeal, assigning for error: 1. The admission of plaintiffs’ offer.1 2. The answer to the defendant’s point.3 3. The answer to the plaintiffs’ point.3 4. The portion of the charge embraced in [ ] 4
131 Pa. 401Barr v. McGary (1890)
APPEAL BY DEPENDANTS FROM TIIE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 24 October Term 1889, Sup. Ct.; court below, No. 269 October Term 1888, C. P. No. 2. On August 31, 1888, Nellie Barr brought assumpsit against W. H. McGary and S. F. McGary, filing the following statement of claim, verified by affidavit: “Nellie Barr, plaintiff in this case, by her attorneys, Mercer & Mcllvain, makes tbe following statement of her claim in this ease: “That said defendants, W. H. McGary and S. F. McGary,made and executed under their hands and seals a certain bond in replevin for the faithful and successful prosecution of said W. H. McGary’s suit at No.-887 January Term 1887, in the sum of one hundred and forty dollars; that a true copy of said bond is hereto attached and marked exhibit A and made part hereof; that said W. H. McGary failed to make good his claim in said suit and to return the property replevied, whereby said bond was forfeited, and said defendants have become indebted to said plaintiff in the aforesaid sum of one hundred and forty dollars. That said bond was duly assigned by the sheriff of Allegheny county to said plaintiff and attested by two witnesses, as required by law.” Exhibit A, appended to the foregoing statement, was a bond in the penal sum of $ 140, to the sheriff of the county, “ for the use of the successful party in the original suit,” and dated December 7,1886, with an assignment indorsed upon it to the plaintiff in this suit. The recitals and condition of the bond were as follows. Whereas, a writ of replevin has issued out of the Court of Common Pleas No. 2 of Allegheny county, .... No. 387 January Term 1887, wherein Wm. H. McGary is plaintiff, and Nellie Barr et al. are defendants, commanding the said sheriff, if the above plaintiff should make him safe in prosecuting his claim with effect against the said defendants, to cause to be replevied and delivered to said plaintiff certain property described in said writ, of the value of seventy dollars, which the said defendants took and unjustly detain, as it is said. The condition of the above obligation is such, that if the above named plaintiff shall make good his claim, and shall and will truly return the property replevied to said sheriff, if it shall be so adjudged by the judge of the court aforesaid, and shall in all things comply with and satisfy the judgment of said court in the premises, and of the Supreme Court, if the cause shall be removed to said court by writ of error or otherwise, and at all times save harmless and indemnify the said sheriff in the premises, and pay the detention and costs of suit, etc., for use aforesaid, then the above obligation to be void; otherwise to be and remain in full force and virtue. The defendants filed an affidavit of defence containing the following averments: 1. The affidavit and statement on file do not disclose a liability of the defendants, or of either of them, to the plaintiff. 2. The action cannot be maintained by the plaintiff for the reason that the condition of the bond sued on was that the obligors in that bond should “at all times save harmless and indemnify the said sheriff in the premises, and pay the detention and costs of suit,” etc. That the bond cannot be assigned so as to carry the right of action to the assignee; and further that the sheriff has sustained no damage or loss and that there has been no adjudication that there was detention or costs. 3. That the bond was given for Nellie Barr and John Irvin and, therefore the assignment, if valid at all, should have been made to both, as the sheriff cannot select and assign to one from a number of joint parties for whose benefit a bond may have been given. 4. The goods replevied were the property of W. II. McGary and were seized by Nellie Barr and John Irvin for rent alleged to be due and owing from the said W. H. McGary, and when the replevin case was called for trial it was the duty of the defendants, if they desired to proceed on the bond, to have the jury find the amount of rent in arrear, so as to charge the bondsmen with that amount. The pleadings in that case show that upon the trial the defendants were the actors and it was their duty, as above stated, to proceed affirmatively and have the amount of rent in arrear, if any, found by the jury. But instead of so proceeding, the defendants’ counsel, when the case was called, moved the court for judgment of non pros., which judgment upon said motion was granted by the court on May 16, 1888, and the amount of rent in arrear not being assessed or found by the jury, there can be no recovery upon the bond; the bond being a penal bond and no assessment of damages or determination of the amount of rent in arrear, no recovery can be had in this case. The plaintiff having moved for judgment for want of a sufficient affidavit of defence, the court, White, J., after argument filed the following opinion and decree :. When the plaintiff in the replevin writ suffered nonsuit and judgment of nonsuit was entered against him, he failed to prosecute his suit with effect, and the condition of the replevin bond was broken. He was then bound to return tbe property or pay its value, for the judgment showed he had no right to replevy it. It has not been the practice in this state to enter the formal judgment of de retorno habendo. But if that was necessary the judgment is amendable and we would allow it to be so amended, and may consider it so amended. The plaintiff in replevin fixed the value of the goods at seventy dollars, and the affidavit of defendants does not deny they are of that value. Having retained the goods, taken illegally, they must pay their value. No legal or sufficient defence is set forth in the affidavit of defence. And now, November 10, 1888, rule absolute, judgment to be entered for the plaintiff against defendants for $70 with interest thereon from December 7, 1886, to wit, the sum of $78.3 Judgment having been entered in accordance with the foregoing order, the defendants took this appeal, assigning for error the order directing judgment to be entered for the plaintiff.3
131 Pa. 408Oliver v. Pittsb. V. & C. Ry. Co. (1890)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 1 OP ALLEGHENY COUNTY. No. 55 October Term 1889, Sup. Ct.; court below, No. 565 March Term 1887, C. P. No. 1. On February 23, 1887, George Oliver and others brought ejectment against the Pittsburgh, Virginia & Charleston Railway Co., for a strip of land occupied by the tracks and roadbed of the defendant company. The defendants’ plea was not guilty. At the trial on November 22, 1888, the following facts were shown: In 1868, the land in controversy was of the property of Robert Oliver, who died in that year intestate, leaving to survive him his widow, Martha Oliver, and one heir at law, his son, Robert A. Oliver, then two years of age. In 1870, when the defendant company was preparing to construct its railroad and was engaged in procuring rights of way therefor, Martha Oliver, being in the occupancy of the land of which her husband died seised, executed an agreement stipulating, in consideration of benefits and one dollar, to grant to the defendant the right of way for said road through said land. In the fall of 1871, the defendant constructed its road, taking possession of and occupying for that pulpóse the strip of ground in controversy. Abdiel McClure, the duly appointed guardian of Robert A. Oliver, and duly qualified as such, was one of the promoters of the building of the railroad, and it was constructed through the Oliver property with his knowledge and without objection on his part. The defendant never gave any bond securing the payment of compensation to or for the use of Robert A. Oliver, for the appropriation of the right of way, and never made such payment; nor was any claim or demand therefor ever made by the guardian, or by any one else on behalf of said minor. From the time of its construction until the trial, the defendant’s railroad was continuously maintained and operated upon the ground sought to be recovered in this action. Martha Oliver died December 31, 1872, and on October 19, 1882, Robert A. Oliver, who was still in his minority, died, leaving the plaintiffs, who are his cousins, as his next of kin and heirs. At the close of the testimony, the court, Stowe, P. J., charged the jury as follows: Counsel for the plaintiffs request the court to charge the jury: 1. That under the law and the evidence the verdict of the jury should be for the plaintiffs. Answer: Affirmed.1 Counsel for the defendant request the court to charge: 4. If the jury believe from the evidence that the defendant company, in or about 1871, located and constructed its railroad upon the land described in the writ in this case when the same, was owned by the widow and child of Robert Oliver, deceased, viz.: Martha A. Oliver and Robert A. Oliver, a minor, of whose estate Abdiel McClure was guardian ,■ that said railroad was so located and constructed under a release to defendant from said Martha A. Oliver, and without objection by said Robert A. Oliver or Abdiel McClure, his guardian, and as so located and constructed was operated by defendant thereafter until after the death of said Robert A. Oliver; and that the said Robert A. Oliver died intestate in 1882 and the plaintiffs in this case claim to recover as his heirs at law, then the right to damages for the location and construction of said railroad, if any were sustained, vested in said Robert A. Oliver and was enforceable by him or his guardian or administrator, if not released or otherwise barred, and said land descended to plaintiffs subject to and charged with an easement therein in favor of the defendant for the operation of its railroad, and plaintiffs are not entitled to recover. Answer: Refused.3 5. Under all the evidence in the case the plaintiffs are not entitled to recover in this action. Answer :• Refused.3 Under instructions, the jury returned a verdict in favor of the plaintiffs for the land in dispute. Judgment having been entered, the defendant took this appeal, assigning for error : 1. The answer to plaintiffs’ point.1 2, 3. The answers to defendant’s points.3 3
131 Pa. 416Reynolds v. Braithwaite (1890)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON -PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 151 October Term 1889, Sup. Ct.; court below, No. 275 October Term 1889, C. P. No 2. On September 3, 1888, a summons in trespass was served in an action by B. F. Reynolds against Wm. Braitliwaite and Sarah Braitliwaite, his wife. Issue. At the close of the testimony, at the trial on May 22, 1889, the court, Ewing P. J., charged the jury: ' Counsel for defendant have asked us to instruct you on a large number of points, the first being that under all the evidence your verdict must be for defendants; on the contrary we instruct you, that under the uneontradicted testimony in the case, the verdict should be for the plaintiff as against William Braithwaite. The second point is affirmed and the others are refused, and we say in answer to them, further, that the deed of June 15, 1875, by which Jonathan Hulton conveyed the right to Mr. Reynolds to use water from his spring, with the right of way over or under his grounds to the land of Reynolds, followed by the laying of the pipe immediately thereafter, is a continuous right. Mrs. Braithwaite is but the devisee of Jonathan Hulton, and she and her husband, acting for her, as the owners and occupiers of the land, have no other or greater rights in the land than Jonathan Hulton would have if he were living. The laying and existence of the pipe was notice to them of the right of the plaintiff, had they needed such notice. Mr. Braithwaite admits that he knew of the pipe and its use. [He, Braithwaite, contracted for the grading of the lot over this pipe so laid. He knew of the cutting of the pipe by his employees, and by his own admission on the witness stand he adopted their act, by stopping up the pipe and forbidding the plaintiff from entering on the land to repair or re-lay the pipe.] 9..... In 1875, Jonathan Hulton was the owner of a number of acres of land in what was then Plum township, afterwards in the borough of Yerona, and still later in what is now the borough of Oakmont. On that land was a large, fine spring of soft water; if the evidence is to be believed, apparently water enough to supply a number of families and to fill several pipes that were put into it. Mr. Reynolds was the owner of an acre or more of land there that he had bought previously from Mr. Hulton, and on June 15, 1875, Jonathan Hulton conveyed to Mr. Reynolds a perpetual supply or the amount of water that would run through a pipe three quarters of an inch in diameter, from the spring near the westerly line of said Hulton’s land, the same from which he now supplies his own residence at Hulton station; also the right of way to lay a pipe through the ground of said Hulton, the right and privilege to keep the same below the ground perpetually, and the right to remove or repair the same when he so desired. The uncontradicted testimony is, that almost immediately thereafter, the pipe now in question was laid from the spring to Mr. Reynolds’s property, where it seems to have supplied two houses ; and it would appear indirectly that there has been an ample supply of water for all other houses that had a right to be supplied, and that there was no failure in the spring. The deed did not designate the place in which the pipe was to be laid over Hulton’s property, but the laying of the pipe thereafter by mutual consent fixed that place, and neither of them could thereafter change the location of it except by mutual consent. The right of way over the land that was indefinite as to location, became definite and fixed by the laying of the pipe and continues. It was laid under ground, and ordinarily it would require to remain at about the same place in which it was first laid..... That being the state of the case, in the relations between Mr. Hulton and Mr. Reynolds, Mr. Hulton died in the following year, leaving a will by which he- devised, among other things, to his granddaughter, Mrs. Braithwaite, an interest in his land, and in the partition this portion over which this complaint is made was allotted to her. Now, she is not a purchaser without notice of this right of way. [Mr. Reynolds did not put his deed upon record at as early a date as it should have been done, but as to these parties it is not necessary, because they stand just in the position of Mr. Hulton. They are devisees; they are not purchasers, and even a purchaser would have been held subject to the notice which the things on the ground would show. In addition to that, Mr. Braithwaite admits that he knew all about the pipe for years ; and in May of last year, he, apparently acting for his wife (he is not the owner but seems to have assumed the rights of an owner there), made a contract for the grading of the grounds of Mrs. Braithwaite, including the ground over which this pipe was laid, or a portion of it, and in the grading the workmen or contractor dug and cut this pipe. It appears that Mr. Braithwaite pointed it out to the contractor, and told him to be careful not to cut it, and yet he did cut it; and the contractor on the stand very coolly says that he did not repair it or do anything with it, although he knew what it was, and knew it was property belonging to Mr. Reynolds; he destroyed it and did not deem it necessary to repair it because that was not in his contract. It is a pity he was not the defendant in this case. I think the jury would likely give him an example in exemplary damages, if he were, but he is not, and it is claimed by the defendant that he is relieved because this was the work of a contractor. Well, -if he, Braithwaite, had repudiated that work, possibly he might have claimed that it was a wilful trespass of the contractor, and that he is not responsible : although my impressions are that it is not the kind of a case where he could repudiate; but he did not, and by the testimony of other witnesses and by his own admissions he adopted that act and took no measures to remedy it; his own workmen had cut this pipe, his employees by the contractor; but he goes to work and stops it up and then forbids the owner of the pipe (who had a right to enter there to repair it) from entering. Taking his own statement, throwing out Mr. Reynolds’s statement, — his own statement is, that he said he would not allow it and so accepts the action of his own agent, and he is responsible for it.] 10..... [The question of dispute that the court cannot pass upon is one of damages, as to amount. The plaintiff is to be made whole. He is entitled to go on to the premises to repair his pipe. He will have to find where it was cut and destroyed, and is entitled to have that expense made good to him. It is not very likely that the pipe will all have to be re-laid. It seems there was about 700 feet altogether, and about 150 feet through the premises of the defendant. How much of it will have to be taken up it is pretty difficult to tell; but it is cut and will have to be re-laid and some new pipe put in, and the expense of re-laying probably through the property of Mrs. Braithwaite, with joints at each end, is likely to be necessary to repair that damage. Then, there is the damage from the deprivation of water from his house for the time that elapsed. The taking of the pipe, the cutting off the supply, and the refusal to allow it to be repaired is a continuous damage. Now he is entitled to the cost that it has been to him to supply the water and the cost of the deprivation. You have had a statement as to some expense he has been at; whether that is all that is to be allowed is a matter for the jury. Some of it will be of permanent advantage after he gets his supply, but he is entitled to the reasonable cost of supplying water and for the reasonable cost of the deprivation of water from his house from the time the water was cut off.] 11 There is no complaint that there is any scarcity of water, and the amount coming through the pipes would no doubt be a great deal more than was necessary to supply the houses. [The case is one in which the jury would not be necessarily limited to mere compensation. There are cases of wrong where the jury may go beyond mere compensation, and give what are called exemplary damages to punish a party for gross wrongdoing, for reckless disregard of right; but the chances are in this case that when you get actual compensation for the damage, that will be punishment enough. The court cannot say absolutely that it is a case not for punitive damages, but would simply say that we would, if on the jury, consider that compensatory damages would be' sufficient punishment for the wrong.] liS The jury returned a verdict in favor of the plaintiff for $225. A rule for a new trial having been discharged, judgment was entered against ¥m. Braithwaite, when he took this appeal, assigning for error: 9-12. The portions of the charge embraced in [ ] 9 to 13
131 Pa. 422Reese v. Pennsylvania R. (1890)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY. No. 250 October Term 1889, Sup. Ct.; court below, No. 127 January Term 1889, C. P. No. 2. On October 31,1888, L. B. D. Reese brought trespass against the Pennsylvania Railroad Company to recover damages for the alleged unlawful ejecting of the plaintiff from a passenger train of the defendant. Issue. At the trial on September 17,1889, the following facts were shown: About eleven o’clock on the evening of October 24, 1888, the plaintiff, in company with two friends, boarded a passenger train of the defendant company at East Liberty station, in the city of Pittsburgh, for the purpose of going to the Union station in said city. The testimony for the plaintiff tended to prove that they arrived at East Liberty station just as the train was about to start, and too late to get tickets; while witnesses for the defendant testified that the plaintiff and his companions were at the station some minutes before the train left. The ticket office at East Liberty was kept open the usual length of time prior to the departure of that train, and afforded all persons who were at the station before it started an opportunity to procure tickets. The defendant company was incorporated by act of April 13, 1846, P. L. 312, § 21 of which provides that “ in the transportation of passengers, no charge shall be made to exceed three cents per mile for through passengers, and three and one half cents per mile for way passengers.” After the train had started, the conductor called upon the plaintiff for his ticket, when the plaintiff stated that he had none and tendered to the conductor the sum of fourteen cents in cash. The distance between the East Liberty and Union stations is four and one half miles, and the regular and uniform fare charged by the defendant between those points was fourteen cents, being at the rate of three cents a mile. The company, however, had a regulation requiring passengers without tickets to pay to the conductor, in addition to the regular fare of three cents per mile, the additional sum of ten cents. The amount so to be paid in excess of the regular fare was uniform in all cases, irrespective of the distance the passenger was traveling, and upon its payment the conductor was required to give to the passenger a memorandum or check, signed by the general passenger agent of the company, redeemable at ten cents on presentation at any ticket office of the company along its road. This memorandum is known as a “ duplex ticket,” the conductor being required to retain and forward to the auditor of passenger receipts a duplicate of each one issued. It is printed upon a form so arranged that the stations from and to which fare is collected can be indicated upon it by punch marks, and conductors are required to do this in all cases. Of this regulation, notice was given to the public by printed cards posted at the company’s ticket offices. Two such notices were posted on the station house at East Liberty at and for some time prior to the date when the plaintiff took this train. They read as follows: “ An excess of ten cents will be charged on all fares paid on trains. Passengers paying such fares will be furnished by the conductors with a memorandum, upon presentation of which, at any ticket office, of the Pennsylvania Railroad Division, the excess of ten cents will be refunded. Passengers are respectfully requested to purchase tickets at the regular ticket offices of the company, as far as practicable.” The following instructions to conductors respecting the enforcement of this regulation were issued by the company’s division ticket agent on June 80, 1887, and were still in force on October 24,1888: “The following rules will, until further notice, govern the issue of duplex tickets on the Pittsburgh Division. “ The collection of excess must be omitted as follows: 1. When passage is taken from non-ticket stations; whether the destination is a ticket station, or a non-ticket station. • 2. When passage is taken from a ticket station, the office of which being closed by authority, regardless of the passenger’s destination. 3. When, on account of a large crowd, it is impossible to issue duplex tickets without losing cash fares, or leaving tickets in the hands of passengers. 4. In cases of small children traveling alone, and of sick, aged, or infirm persons, who have not money enough to pay the excess. 5. When excursion tickets are issued. 6. Omit the collection of excess in connection with New York & Chicago Limited Express extra faros ; and, also, when ordered, collections are made on second class and emigrant tickets. “ In all cases, except as above noted, conductors must courteously enforce the collection of excess, as prescribed in circular 160; and require the persons who refuse to pay it, to leave the train; and if necessary, without undue force or violence, eject them at the next station, as provided in the book of rules.” Acting under the regulation of the company respecting the payment of cash fares, the conductor refused to accept the fourteen cents tendered him by the plaintiff and demanded twenty-four cents. The plaintiff declined absolutely to pay more than fourteen cents, whereupon he was put off the train at Roup station. The conductor of the train testified, for the defendant, that at the time of demanding twenty-four cents from the plaintiff, he explained to the latter that a duplex, redeemable at ten cents at any office of the company along the line, would be issued upon payment of the twenty-four cents. The plaintiff denied this and testified that he did not know that he would receive such a check, because he had no notice of the regulation and had never seen any of the printed placards notifying the public of it; and that he had previously ridden in trains of the defendant when no excess over the regular fare was exacted from him. He admitted, however, that he had heard of the regulation, had heard people complain of it, and had read of it in the newspapers : Q. You supposed when the conductor demanded that ten cents, that that was what it was ? A. I suppose so. Q. You did not think they were demanding the ten cents for the purpose of keeping it as fare ? A. I don’t know what they were demanding it for. I know they demanded it, and that is all there was of it. The conductor said nothing to me about getting any rebate; didn’t tender me any slip; didn’t say anything to "me about any regulation they had, but just simply demanded the twenty-four cents. Q. You did not ask him anything about it ? A. I didn’t. At the conclusion of the testimony the court, Ewing, P. J., charged the jury in part as follows : Counsel for defendant requests the court to charge : 1. Under the uncontradicted evidence in this case, the regulation of the defendant was a reasonable one, and the plaintiff, who was insisting on riding in violation thereof, has no cause of action; and the verdict should be in favor of defendant. Answer: Refused.1 8. The regulation of the defendant company requiring a passenger who gets on the train at a station where there is a ticket office and who neglects to obtain a ticket, to pay ten cents more than the regular ticket fare, and giving him a check for the ten cents which he can have cashed at any ticket office of the company, is a reasonable regulation and binding upon a passenger, and he has no right to ride upon the cars in contravention of that regulation. Answer: This point is refused under the uncontradicted evidence and admissions in this case; the fare demanded being in excess of the maximum rate which the railroad company by its charter is permitted to charge, the regulation is illegal and therefore unreasonable. The demand of the conductor that the plaintiff should pay twenty-four cents, or be put off the train, was a demand of that amount as fare.8 4. Where the travel is so great and the stops are so frequent that it is not reasonably practicable for the conductor to receive the passengers’ fares on the train, and the company has provided a convenient ticket office which is open a reasonable length of time before the departure of trains, the company is not bound to receive a passenger’s fare on the train; and a regulation of the company that specifies that his fare will only be received on the train when ten cents extra is paid, for which the passenger receives a refunding receipt, and which will be repaid by the company on presentation of the receipt at any ticket office, is a reasonable and valid regulation and binding upon passengers. Answer: It is not necessary in this case to decide whether or not the railroad company has a right to make a regulation that it will not carry passengers who have no ticket. This company has not made such a regulation; and, having left it open to the public to ti'avel by paying fare on the train, the company must limit its demand to the maximum allowed by its charter.3 The court is requested by the plaintiff to instruct the jury : 3. If the jury find that the amount demanded from plaintiff by the conductor was in excess of the maximum rate of fare per mile fixed by defendant’s charter, such demand was illegal; and if, in consequence of plaintiff’s refusal to pay the excessive amount so demanded, he was ejected from the train, he is entitled to recover in this action, especially if the jury further find that he was willing to pay, and tendered to the conductor, the regular ticket or cash fare between said points. Answer: Afiffimed.4 It seems that the company has a regulation, known to its officers at least, and the regulation 021 which this conductor acted that night, that where a passenger gets on the train to get transportation to some other poÍ2it 021 the road without a ticket, the conductor is to collect from him the regular fare that he would have paid for a ticket and ten cents in addition to that, regardless of the distance he is going to travel. The conductor, actÍ2ig 021 that, demanded the ten cents additional fare, making twenty-four cents. There is no doubt that the railroad co2npany, both in its own interest and in the interest and C021-venience of the public in traveling, has a right to make some difference in the fare charged to a person who gets his ticket at the office and has it so that the evidence of payment of fare shall be easily taken by the conductor, or ticket collector, or whoever it may be, without inconvenience and without waste of time. If they only make a reasonable difference under the circumstances, then it is a valid one; and if the passenger, liaving neglected to get his ticket, refuses to pay the proper fare, and is put off, the company is not liable. It seems that there is another part of the regulation, that when the conductor collects the extra fare from the passenger, he is required to give him a receipt or duplicate ticket, or something of the kind, which is said to entitle the passenger paying it, if he sees fit to go for it, to receive back the ten cents at the office of the company. Now we are unable to see, that giving that receipt converts this into anything else than the fare' demanded on the road, and we say to you, when the conductor demanded twenty-four cents from the plaintiff, as a condition precedent to his ride to Union station, it was a demand of twenty-four cents as fare; and if that was a larger fare than the law of the company, namely, its charter, authorized it to charge, then it was a demand of an illegal fare, and the regulation as to this particular case, and between these two stations, is illegal, and, therefore, unreasonable. If left to the court to form a conclusion, as to whether or not it was a reasonable discrimination between a ticket fare and the cash fare, I would say that ten cents is an unreasonable addition to make to the fare between these two points; but that is immaterial in this case, with the view we take of what this demand was; namely, a demand of the fare of twenty-four cents..... [The act of assembly, read in your presence and offered in evidence, fixes the maximum fare that the railroad company can charge between any points, as three and one half cents per mile. The admitted distance between the two stations is four and one half miles; from which I think they would be entitled to charge for five miles; so that this would he an excessive fare, beyond the maximum that the statute authorized the Pennsylvania railroad to charge in any case, and therefore illegal.] 5 If that fare was demanded, and the plaintiff was put off because he would not pay it, it is immaterial that he got off before force was used; it was illegal, and the defendant is liable for the damages. There are two questions that appear to be in dispute from the evidence, which I do not deem material. We have admitted several things in evidence, on the part of defendant, which we are inclined to think are not strictly legal evidence, but think it is important that everything connected with this case should go on the record, and we will ask yoa to pass on two questions disputed by the testimony..... Did the plaintiff, Mr. Reese, on the evening in question, arrive at East Liberty station in time to procure a ticket before going on the train? If he did, answer it yes; if ho did not, answer it no. The next is, that the conductor explained to Mr. Reese that when he would pay the twenty-four cents, he would get a receipt, or something, entitling him to be paid back ten cents. Mr. Reese says he did not explain anything of the kind, and the other two witnesses corroborate it.....We ask you to answer either in the negative or affirmative that question. [If you find that the fare demanded was in excess of the legal fare, three and one half cents per mile, and that he was put off for not paying that, then you find for the plaintiff, and you will return that verdict, filling the amount in] 6 and answering these questions. The next question is, if you find for the plaintiff, what is the amount of damages ? ... . The jury rendered the following verdict: “We find for the plaintiff in the sum of two hundred and fifty dollars ($250). And we have further answered the annexed questions submitted to us for answer as part of the verdict: “ 1. Did the plaintiff, Mr. Reese, on the evening in question, arrive at the East Liberty station in time to procure a ticket before getting on the train ? “No.” “ 2. Did the conductor, when demanding from the plaintiff twenty-four cents fare, or before putting him off the train, inform him that he.would obtain a receipt entitling him to be repaid ten cents of the fare on presentation at the proper office; or did Mr. Reese know that such was the regulation ? “No:” Judgment having been entered upon the verdict, the defendant took this appeal, assigning for error: 1-3. The answers to defendant’s points.1 to 3 4. The answer to plaintiffs’ point-.4 5, 6. The parts of the charge embraced in [ ] 5 6
131 Pa. 437Lyle v. McKeesport R. (1890)
APPEALS BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY, IN EQUITY. Nos. 256,257,258 October Term 1889, Sup. Cfc.; court below, Nos. 356, 357, 358 September Term 1888, C. P. No. 1 in Equity. On July 19, 1888, Andrew Lyle and Catharine, his wife, filed a bill in equity against the McKeesport & Belle Yernon Railroad Company, praying upon the facts therein averred that the defendant company be enjoined “ from entering upon or in anywise interfering with the messuage, tenement, dwelling-house, or homestead and curtilage appurtenant thereto, of your orators, described in this bill; ” and for further relief. An answer to the bill having been filed, issue was joined, when the cause was referred to Mr. If. S. Williams, appointed examiner and master. Like bills were filed, on the same day with the preceding, by Otto Pfenninghaus, and by Henry Knipcamp, guardian of Anna May Freeman and others, charging like facts and praying the same relief. Answers having been filed and issue joined, these causes also were referred to Mr. Williams as examiner and master. From the testimony taken on the hearing, under the bill filed by Andrew Lyle and wife, the master reported as follows: FINDINGS OS’ FACT. 1. That Catharine Lyle, one of the plaintiffs, at the time of filing plaintiffs’ bill, was seised in fee of a certain lot of ground and messuage, situate in the borough of Reynoldton, Allegheny county, Pennsylvania, said lot having a front of forty feet on Ruth street, and extending back, preserving the same width, ninety-six feet to an alley sixteen feet in width, parallel with said street and of same length. 2. That erected on said lot was a two-story frame dwelling-house, thirty-two feet in length by sixteen in width; with a small L or wing attached to the westerly side of the rear of the house, seven feet in length by three in width. That the dwelling-house stands twelve feet back from the south line of Ruth street, and about three feet from the easterly side of the lot line. That the distance from the house to the northern line of the alley in the rear of the lot was fifty-two feet. That on the rear of the lot, fronting on the alley, were located the following out buildings: A coal house, six and one half feet by nine feet; a cow-stable, eleven and a half feet by four and a half feet; and a chicken-house four and one half feet by four feet. About fourteen feet from the northern line of the alley was a privy four feet by four feet. B. That said buildings were used by the plaintiffs and their family of seven children, at and for some time prior to the filing of plaintiffs’ bill, for the uses and purposes for which said buildings were adapted, access to said buildings in the rear being mainly from the alley. 4. That said lot on which said buildings were erected was inclosed by a fence; said buildings being in one inclosure and the land appropriated constituting part of the curtilage. 5. That the defendant company is a corporation incorporated in January, 1886, according to the provisions of an act of assembly, approved April 4,1868, entitled “ An Act to authorize the formation of railroad companies; ” having authority, under its articles of association, “ to locate and construct a railroad beginning at Iteynoldton, Allegheny county, Pa., and thence extending to and terminating at a point in, at, or near Belle Vernon, Fayette county, Pa. 6. That, by virtue of its authority, said defendant company proposes to construct and maintain a line of railroad for continuous use and operation between said points. That, in pursuance thereof, said company has appropriated sixteen feet by forty feet of plaintiffs’ lot adjoining the alley aforesaid, and has removed the outbuildings above mentioned, having given bond in the sum of four hundred dollars to pay the damages occasioned thereby. 7. That, by reason of said appropriation, plaintiffs’ lot is curtailed from its original size, forty by ninety-six feet, to forty •by eighty feet, the distance from the dwelling-house to the right of way being thirty-six feet, the cow-stable, chicken-house and coal-house having been moved back off the right of way sixteen feet from original location toward the dwelling-house, and the privy moved back toward the house about two feet. 8. That the appropriation so made and the location of defendant’s tracks for the purpose of maintaining and operating a railroad, have substantially shut off and prevented access to said building and lot by means of the alley, and that prior to said appropriation said alley was used by the plaintiffs in supplying their family with water, coal and provisions for family use; and, furthermore, that plaintiffs, at the time of filing bill, kept a cow to supply their family with milk, using the alley as a means of ingress and egress in driving the cow to the stable, and that since the appropriation plaintiffs have been obliged to sell their cow, having no means other than the front street of access to said stable to put the cow in the stable. 9. That said appropriation was made by the defendant company under its alleged power of eminent domain, and is without the consent of the plaintiffs. 10. That prior to filing of plaintiffs’ bill, Barton & Barton, plaintiffs’ attorneys, offered, on June 27, 1888, to sell to defendant company the strip appropriated. CONCLUSIONS OF LAW. The first 'question for decision is: Have the plaintiffs es-topped themselves from claiming equitable relief ? It is contended on the part of the defendant that the letter of Barton & Barton, written to Mr. Wainwright on June 27, 1888, prior to the filing of the bill, proposing to sell the strip appropriated for a money consideration, and the moving back of the buildings, had this effect; it tending to show that the plaintiffs considered the injury done them was of a nature for which damages could alone be properly sought, and not such as to interfere with the enjoyment of the premises as a dwelling-house. In the opinion of the master this position is not well taken. Plaintiffs might have offered for a money consideration to permit the defendant company to take the dwelling itself, which offer not being accepted would clearly not estop them from claiming equitable relief by injunction. The offer was made ■ by way of compromise and was not accepted, and for that reason cannot work as an estoppel. No authority is shown, outside the letter itself, for Barton & Barton to make the proposed sale. The authority of attorney to bind client by way of agreement or compromise is not inferred, but must be proven. See Isaacs v. Zugsmith, 108 Pa. 77, and authorities there cited. See also Brockley v. Brockley, 122 Pa. 1, and authorities there cited. For these reasons the master is of the opinion that plaintiffs are not estopped from claiming equitable relief. The second, or main question then for decision is, was the land appropriated curtilage to and necessary for the reasonable enjoyment of said premises as a dwelling ? The evident intent of the prohibitive clause of the act of assembly was to secure the owner in the ordinary, proper and reasonable enjoymént of the house, as a residence, in view of its location and surroundings: Swift’s App., Ill Pa. 523. To accomplish this purpose, the courts have extended the plain wording of the statute, “ dwelling-house,” to comprise so much of the curtilage as is requisite to afford the owner reasonable enjoyment of the house as a residence. The test is, not Whether the owner can be compensated in damages, nor whether the house has been rendered uninhabitable by reason of the land appropriated. Only that portion, however, of the curtilage is exempted from appropriation which is necessary to the enjoyment of the house, not that which is simply desirable and convenient, dependent on the will of the owner: Damon’s App.. 119 Pa. 287. The test as to how much of the curtilage is protected seems to be, does the proposed appropriation interfere with the ordinary, proper and reasonable enjoyment of the premises as a dwelling, considering its location and surroundings ? In determining this question, the court has said that it must depend on the circumstances attending each particular case. In Swift’s Appeal above cited, “ the land to be taken is one corner of the rear end of the lot; it is one hundred and fifty-five feet from the nearest portion of the house.” “ It does not interfere with the use or enjoyment of any adjacent buildings or ornamental structures of any kind, nor with any shrubbery or beautiful lawn.” “ It in no manner prevents access to the street, nor causes any substantial objection to the building as a dwelling-house.” In Damon’s Appeal, also cited, it appears “ that the ground taken is not within the same inclosure,” and the master found that the ground taken “ was not a part of the curtilage.” “ That the railroad at its nearest point was more than one hundred feet from the dwelling, and does not materially interfere with access thereto.” “ Moreover, no outbuilding was taken.” “ The taking of out-buildings has never, in this commonwealth, at least, been held a violation of the prohibitive words of the act of 1849, and we do not mean to intimate that it would or should be so held. But the fact that none are taken, etc., increases the difficulty of the appellant in his contention.” The facts of the present case differ considerably from either of the cases mentioned. As to the size of the lot in Swift’s Appeal, the lot was a Philadelphia city lot, one hundred feet by two hundred and twenty-five feet. In Damon’s Appeal, the property comprised forty acres, and was occupied as a country residence. In the present case the lot is forty feet by ninety-six feet, situated in the borough of Reynoldton, opposite Mc-Keesport, in this county. In Swift’s Appeal, the distance from the house to the proposed right of way was one hundred and fifty-five feet. In Damon’s Appeal, the distance from the house to the right of way was over one hundred feet. In the present case it is thirty-six feet. In Swift’s Appeal, the amount appropriated was 288 square feet. In the present case, the lot being about one sixth in size to that in Swift’s Appeal, 640 square feet is appropriated. In both the above cited cases, the outbuildings were not interfered with. In the present case the outbuildings, coal-house, cow-shed, chicken-house and privy were moved toward the house a considerable distance, considering the depth of the lot. It is possibly true that the amount of land taken and the removal and re-location of the buildings would not in itself interfere with the reasonable enjoyment of the dwelling, so as to bring the case within the prohibitive portion of the act. In Other words, the master is of the opinion that if the lot were simply curtailed by the appropriation made, sufficient would still remain to accommodate the buildings located upon it. In both the cases cited above, the court seems to have laid considerable stress upon the fact that access to the dwelling was not interfered with. In the present case, access to the buildings and to the lot itself, by means of the alley in the rear, is prevented by the appropriation for the purpose intended; and while it is true that plaintiffs could use the buildings for the same purpose for which they were used prior to the location of the railroad, by approaching them from the street in front, across the open side lot, yet it would be at the substantial destruction of the lot itself, cutting up the lot, destroying the grass and flowers. It seems to the master that the plaintiffs have the same right to be protected in the use of the alley in the rear, as they would have to the street in front; that one is as necessary for the reasonable enjoyment of the dwelling as the other, the alley being the every-day entrance for the supplies of the house, and the fact that the lot fronting on the alley having originally, in all probability, been decisive of its selection for the dwelling. The location of the railroad within such close proximity as thirty-six feet of plaintiffs’ house, must of necessity be a constant menace to plaintiffs’ personal safety, their family’s and their property, much more than a mere inconvenience. From a careful consideration of all the facts in this case upon reflection and study of the case, admitting that his original impressions have been considerably changed, the master is of the opinion that the appropriation of plaintiffs’ land, the removal of the buildings and the proximity of the railroad to the house, and the cutting off of access to the alley, all taken together, clearly bring the case within the prohibitive section of the statute, as defined in Swift’s Appeal, and afterwards limited and qualified in Damon’s Appeal. If the appropriation in this case is not an interference with the ordinary, proper and reasonable enjoyment of the house as a residence, considering its location and surroundings, then it would, indeed, be hard to exempt any part of the curtilage. While the master recognizes the public character of the defendant company, and that a quasi-public corporation like a railroad should be protected in the fair enjoyment of their franchise and rights, yet where they exceed the almost sovereign power with which they are clothed by the commonwealth and invade the rights of a citizen, however humble, the duty then devolves upon the courts to restrain them as quickly and effectually as it would any private trespasser. For the reasons above stated the master recommends the plaintiffs’ bill be sustained, and that an injunction issue as prayed for. A similar report was made in the other causes heard at the same time by the master. Exceptions to the reports were filed before the master and overruled by him. Being renewed before the court, the exceptions were dismissed on October 4, 1889, without opinion filed, and in each case a decree was signed enjoining the defendant as prayed for in the several bills. Thereupon the defendant company took these appeals assigning the dismissal of the exceptions and the decree awarding the injunctions for error. The cases were argued in this court together.
131 Pa. 447Lemon v. Graham (1890)
APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS OP JEFFERSON COUNTY. No. 37 October Term 1889, Sup. Ct.; court below, No. 183 September Term 1885, C. P. On June 24, 1885, Elizabeth Lemon and others brought ejectment against James Ramsey for a tract of land in Porter township. The defendant Ramsey disclaimed title, and on motion of Elizabeth Jane Graham she was made the defendant upon the record. Issue. At the trial on December 6, 1887, the following facts were shown on the part of the plaintiff: On September 2,1862, James Ramsey the original defendant became the owner of the land in dispute by virtue of a deed from John Ramsey, bearing date that day and conveying the land to James Ramsey, his heirs and assigns. On August 3, 1866, James Ramsey executed the following instrument indorsed on the back of the deed to himself from John Ramsey, delivering said deed with this indorsement to his son, Allen Ramsey: “I, James Ramsey, do hereby assign and set over all my right, title, claim, interest, property and demand whatsoever, in and to the within deed, unto Allen Ramsey, for value received. Witness my hand and seal this 3d day of August. A. d. 1866. James Ramsey, [seal.]” “Attest: Geo. Bish.” After the execution and delivery of this instrument, James Ramsey remained in possession of the land. Allen Ramsey died in 1870, leaving the plaintiffs as his heirs at law. On March 12, 1884, James Ramsey executed a deed for the same land to his daughter, Elizabeth Jane Graham. George Bish, the scrivener of the assignment from James Ramsey to Allen Ramsey, being called upon the stand, the plaintiffs made the following offers : We propose to prove by this witness, Mr. George Bish, that the agreement between James Ramsey and Allen Ramsey of August 3, 1866, was that James should sell and convey to Allen an absolute estate in fee in the land in dispute, and that the witness, who reduced their agreement to writing, made a mistake by omitting to use such words as were necessary to express their real contract and to convey an estate in fee as the parties intended; that the whole consideration was subsequently paid to the vendor by the vendee, and that the parties to said contract always treated the transaction as an absolute bargain and sale of the land in fee. Mr. Stewart, for defendant: We object to that as incompetent and irrelevant. The plaintiffs have offered the paper, and there is nothing in that assignment that would render parol testimony necessary or competent. It is incompetent on a trial of this kind to reform a paper of this nature in that way. . By the court: The objection is sustained; exception.4 Mr. Wier, for plaintiffs: We further propose to prove that the contract between James Ramsey and Allen Ramsey was an absolute bargain and sale of the land in dispute; that the parties went to George Bish, an acting justice of the peace, intending he should draw an absolute conveyance for the land in fee-simple to Allen Ramsey; that the justice drew the writing of August 3, 1866, supposing it was an absolute conveyance in fee-simple; that the deeds were delivered with that understanding; that all parties so understood it, even at the time of filing a bill to perpetuate testimony at No. 1 February Term 1883, in the Common Pleas of Jefferson county. Mr. Corbet, for defendant: We object to that for the reason that it is incompetent and irrelevant. Mr. Wier, for plaintiffs: We propose to follow the proof proposed in our offer by showing that Mrs. Graham, the defendant, knew all aboiit the contract; that she is a daughter of James Ramsey, and that she and her father subsequent to the death of Allen Ramsey conspired together for the purpose of defeating the title of Allen Ramsey’s orphan children; that the defendant, in connection and collusion with James Ramsey, the father, entered into this arrangement and conspiracy for transferring the title to her, with the express purpose of defeating the plaintiffs’ title under this contract. Offer objected to by defendant’s counsel as incompetent and irrelevant. By the court: Objection sustained; testimony rejected; exception.3 8 At the conclusion of the testimony for the plaintiffs, the court, Wilson, P. J., on motion of the defendant, entered judgment of compulsory nousuit, and subsequently, after argument, overruled a motion to take off the nonsuit, without opinion filed. Thereupon the plaintiffs took this appeal, assigning for error: 1. The refusal to take off the nonsuit. ^•■4-6. The overruling of plaintiffs’ offers.4 lo 6
131 Pa. 455Brown v. Devitt (1890)
APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY. No. 225 October Term 1889, Sup. Ct.; court below, No. 84 September Term 1888, C. P. On June 20, 1888, B. F. Brown and N. F. Stanton brought ejectment against John Devitt and T. S. Fletcher for a tract of land containing ten acres, the prsecipe for the writ stating that the action was brought to enforce the payment of $1,600 purchase money and interest thereon from October 7,1887. Issue. At the trial on March 21, 1889, the following facts were shown: On May 26, 1886, the plaintiffs took from Joseph Knox and others, an oil-lease for the term of fifteen years of the ten acres described in the writ of ejectment. Soon afterward they commenced operations upon the leasehold and completed one producing well. On April 28, 1887, they entered into an article of agreement with John Devitt, one of the defendants, whereby they sold him said leasehold, the oil well thereon, and all the machinery and fixtures belonging to it, for the sum of $5,000 payable in instalments, the last of which, amounting to $2,000, was to mature in one year from the date of the agreement. The article recited that for each instalment of the purchase money Devitt had given his judgment note to the vendors, and contained the following stipulations: “ It is further agreed that the title of said described property shall not pass to said Devitt until the full amount of the purchase money is paid; and he, the party of the second part, shall have the privilege of paying said several amounts at any time before the same shall fall due at his option. “ It is also agreed that the oil produced from said oil well shall be run to the credit of the parties of the first part in the pipe lines, and the oil shall be credited to said Devitt on the last note of $2,000, until well No. 2 shall be put down; after which one half of all oil produced on said leasehold shall be run to the credit of said John Devitt, his heirs or assigns, and the other half shall be run to the credit of the parties of the first part, or their heirs or assigns.” On October 7,1887, Brown and Stanton made an. agreement with Devitt by which they sold him two wells on the William Edmunds farm at $8,000, and he sold them two wells on the Robert Black farm at $4,000. The difference of $1,000 coming to Devitt on this transaction was applied to his indebtedness upon the purchase of the Knox lease, and, with payments previously made, extinguished all of the notes except the one for $2,000 maturing April 28, 1888, upon which Devitt was entitled to a credit of about $400 for oil that had been run into the pipe lines for the use of Brown and Stanton, in accordance with the agreement of April 28, 1887. Devitt then requested an extension of the time of payment of the balance of $1,600 remaining unpaid upon the $2,000 note, and Brown and Stanton agreed to surrender the note for $2,000, upon receiving two new notes for $800 each, one of them payable on April 28, 1888, the date at which the original note would have matured, and the other one year later. This arrangement was carried out, and Devitt thus became possessed of the two original purchase money notes. Brown and Stanton also gave to Devitt an order to the pipe line company to run all the oil thereafter in the latter’s name. This order was in the following form: “ National Transit Co., United Pipe Lines Division. “ Have this day sold Brown & Stanton Well No. 1 on Joseph Knox farm, Perry township, Armstrong county, state of Pa., as below: Interest. Name. P. O. Address. All W. I. John Devitt. Bruin, Pa. T. K. 5089. “ You will therefore transfer the same to his credit on your books.” On May 14,1888, T. S. Fletcher, having a claim against Devitt for $225 borrowed money, and being his security upon a note in Bank for $1,000, took from Devitt, in payment of that indebtedness, an assignment of the Knox lease indorsed upon a copy of the agreement between Brown and Stanton and Devitt. The assignment, executed by Devitt under seal, was in the following words: “ For value received I hereby assign to T. S. Fletcher all . my right, title, interest and claim of, in and to the property described in the within copy of agreement, to have and to hold the same subject to the terms thereof to his heirs and assigns as well as to himself.” Before taking this assignment, Fletcher was shown the agreement and the original purchase money notes by Devitt, went to the pipe line office and ascertained that the oil from the Knox leasehold was all being run in Devitt’s name, and consulted an attorney. He then took the assignment believing that there were no liens upon ‘the leasehold. Devitt had told him of the existence of the two $800 notes and informed him they were unpaid, but said he did not think they were a lien upon the property. The first of these notes having matured and not having been paid, the plaintiffs brought this action. At the conclusion of the testimony the court Neale, P. J., charged the jury in part as follows: You will observe that the title to the land remained in the original parties, Brown and Stanton, under this article of agreement, and was to remain with them; that is, the title to the leasehold, until all the purchase money would be paid; therefore, if any part of the actual purchase money remained unpaid, the title still remained in these original parties under their agreement. The second party, Devitt, on May 14, 1888, sold his interest in this land to this other party Fletcher. If he did not have title in May, 1888, the time of the sale to Fletcher, when all the money, according to their original contract or agreement, was due, he could not sell or convey what he did not have. And if nothing else had happened, there would be a perfect right on the part of the present plaintiffs to bring their action of ejectment to recover under their title, because their money was then due..... —The court then reviewed the testimony showing the facts occurring on October 7, 1887, at the time when the new notes were substituted, and proceeded: It is claimed on the part of this defendant Fletcher that that was an entire change of the transaction. Devitt had the notes delivered up to him, and had given $400 iu oil in regard to that last note, and had given his other two notes for $800 each, making the balance of $1,600. Now, it is to be submitted to you, and that is the reason we are particular about it, it is to be submitted to you, whether that transaction was a payment of this $2,000 note by the giving up of the note on the part of Brown and Stanton to Devitt and the accepting of the other two notes of Devitt at different dates coming due at different times than the $2,000 note; one on April 7,1888, when the original note would become due on the 28 th of April, and the other running an entire year, that is until April 7, 1889. Now, was that new transaction a payment of this $2,000 note ? That has to be determined; because we say to you as a question of law that the mere giving of a note for an indebtedness does not pay the indebtedness, unless it is the intention of the parties that it should pay the indebtedness, or cancel it. Did they by that transaction; did Brown and Stanton, or did Devitt, between themselves, intend by the surrender of the $2,000 note and the accepting of the two $800 notes and the crediting of the $400 on the $2,000 note, did they intend that that should be a payment of that $2,000 note ? That is for the jury to determine. If you find that that was the intention and that the $2,000 note by that transaction was paid, that is an end of this suit; because if the debt has been paid, no difference whether it has been paid in money or otherwise, if there has been a payment of that note, then there can be no recovery in this suit, and the remedy must be upon these two notes. They have a right to proceed upon these two notes and collect them. They are judgment notes and might be entered and an execution issued upon them. If it was not the intent between the parties, and that you have to infer from the acts of the parties; you have to determine whether it was a payment or not by the acts of the parties. It will be for you to say whether that was a payment or not. They have an outside party, so far as Fletcher, the present defendant, is concerned. A man cannot take advantage of an innocent party, if he by his own acts makes it possible that another man may be deceived. If he misleads by his own acts he cannot take advantage of his own wrong and let the other innocent party be injured in his interests or in his rights. Did these parties do all that they should have done, so far as Mr. Fletcher is concerned? They surrendered these notes, they went then to the pipe line company, and they transferred or delivered over to Devitt all the oil or all the right to the oil that they had reserved in their original contract. They were to have that oil run to their own credit. Mr. Fletcher had a right to see that on the pipe line books, and to expect that that oil would be run in the name of Brown and Stanton. He had a right to expect that it would be credited from time to time on the notes, but on the 14th of May when he got the wells, by that time there had been a transfer made on the books of the pipe line company, and the wells had been transferred and their product had been transferred over to Devitt. Now, then, Devitt comes to Fletcher with these notes surrendered to him; and with the transfer, and we do not know whether he did or did not, but it was transferred in the pipe line company; I don’t remember whether the evidence shows that he did or did not; the jury will remember; but on the 14th or before the 14th of May, 1888, this oil had been transferred in the pipe lines to Devitt, and Brown and Stanton had done that. Now, was that an act that was corroborative of the fact that this note had been paid; not paid in money, but paid in what these parties, Brown and Stanton accepted as money ? Then you come to the next matter.- Was this action ripe on June 20, 1888, when this suit was brought, and had they a right to the possession of this land ? They had accepted a note that run on till April 7,1889. Had they a right to the possession of the land, even if this is not a payment of the $2,000 note.? Did the plaintiffs have a right to the possession of the land until this note running until April 7,1889, would be paid ? That will be for the jury under all the evidence in the case. We submit to you, gentlemen, the whole case as a question of fact., under the instructions that we have given you as to the law, bearing upon the various facts that have been adduced in the evidence..... The defendants’ counsel have requested us to charge you as follows: 1. That under the evidence in the cause the plaintiff had no right to the possession of the land on June 20, 1888, and cannot maintain this action. Answer: Affirmed, if the jury believe under all the evidence that the plaintiffs had not the right of possession at the time the suit was brought. We have instructed you fully, in one part of our charge, gentlemen, on that subject.8 2. That the notes of April 28, 1887, having been delivered up to John Devitt, the maker, on October 7, 1887, this action cannot be maintained to enforce their payment. Answer: We say to you, gentlemen, that if you believe that these notes gave a further extension of the time of the payment of the purchase money on that leasehold, and that these notes stood for the note of $2,000 and there was thereby given an extension of time for the payment, then the suit was brought prematurely, because the last of these notes has not matured and the right of action would not accrue.3 3. That Brown and Stanton having on October 14, 1887, made an absolute sale of all their working interest in the well on the property in dispute, they cannot maintain this action. Answer: We will affirm that, if you find that Brown and Stanton had sold all their interest in this. That is for the jury. They could not maintain an action for what they did not have title to. They must have title when they bring-the action. If they had not the title to this property, they could not maintain this suit.4 4. That irom the undisputed evidence in this case, the notes mentioned in the article of agreement of April 28,1887, having been delivered up to John Devitt, the vendee, on October 7, 1887, an equitable action of ejectment cannot be maintained to enforce the payment of any part of the purchase money. Answer: That point is refused. 5. That Brown and Stanton having delivered up the notes of April 28, 1887, to Devitt and having transferred to him the production of the oil wells and thereby induced Fletcher to believe that Devitt was the owner of said property, and Fletcher having parted with his money under that belief, the plaintiffs in this case are estopped from claiming they have a lien on said property. Answer: We refuse to affirm this point as a question of law, but submit it to the jury as a question of fact.5 6. That if the jury believe from the evidence that Brown and Stanton put papers in the hands of Devitt by which Fletcher, an innocent party, was deceived, the loss must fall on them and they cannot recover in this suit. Answer: That point is affirmed.6 . That on October 7,1887, Brown and Stanton having made a new bargain and settlement with Devitt, whereby he sold them two wells on Robert Black farm, and they sold him two wells on Edmunds farm, that the notes of April 28,1887, were delivered up to Devitt and he executed new notes, wherein the time of payment was extended and one of said notes is not yet due, the plaintiff cannot recover in this action. Answer: We refuse to affirm this point as a question of law, but submit it to the jury as a question of fact.7 8. Under the agreement of April 28,1887, the production of the wells was to be applied to the payment of the notes, and the value of' the production being in excess of the note not due, the plaintiff cannot recover. Answer: That is affirmed if the jury believe that to be the fact as stated in the point.8 The verdict of the jury was in favor of the defendants. A rule for a new trial having been discharged, without opinion filed, judgment was entered on the verdict, when the plaintiffs took this appeal, specifying that the court erred: 1. In not charging that there was no evidence of a new contract and that the verdict should be for the plaintiffs. 2-8. In the answers to defendants’ points.8 to 8
131 Pa. 466Keil v. Chartiers V. Gas Co. (1890)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 263 October Term 1889, Sup. Ct.; court below, No. 375 December Term 1887, C. P. No. 1. On November 2, 1887, service was made of a summons in trespass brought by Jacob T. Keil against the Chartiers Valley Gas Company, to recover damages for the alleged unlawful laying of a natural gas main through a lot belonging to the plaintiff. Issue. At the trial on May 22, 1888, tbe following facts were shown: Tbe defendant is a natural gas company incorporated under tbe act of May 29,1885, P. L. 29, for the purpose of supplying natural gas to the public in the city of Pittsburgh and elsewhere, invested with tbe right of eminent domain, and duly authorized to lay its lines in the streets, highways and alleys of said city. In the month of August, 1887, it laid a line of large pipe along Berlin alley and Fifty-first street. In an acute angle formed by the intersection of said alley and street, lay a small triangular lot of ground belonging to B. and E. A. Darlington. Adjoining the Darlington lot was the lot of tbe plaintiff. Both lots were vacant, unimproved and uninclosed. When, in proceeding along tbe alley, tbe defendant’s line reached a point near tbe intersection of the alley with the street, it was taken upon and across the Darlington lot, but was laid at such an angle with the street as to pass across one corner of tbe plaintiff’s lot, occupying a few feet thereof. The pipe laid consisted of a two feet main and one or more smaller pipes for carrying off waste gas, all placed in a trench dug to the depth of six feet. Peter Keil, the father of the plaintiff and in charge of the property, testified that some time in August, 1887, having his attention called to the fact that the direction, in which the trench for the pipe was being made by the defendant’s employees, indicated that it would strike the plaintiff’s lot, the witness went to the foreman in charge and asked him where they were going to run that pipe; that the foreman replied that they were going to run up to Fifty-first street and elbow around and turn into the alley, whereupon the witness said, “ that is all right. I have nothing to say,” and walked away. A few days afterward he found that the pipe had been laid upon the plaintiff’s lot. The witness was then asked: Q. What was the market value of that lot before this was done ? And what was its value with that pipe in, in the manner they put it in ? Objected to for the reason that a bond was tendered by the defendant for the damages done, shortly after the defendant entered upon the premises, and that it would therefore not be the fair measure of damages, because that is embraced in a subsequent suit which is pending. By the court: Objection overruled; exception.1 Under this offer, the witness testified that the market value of the lot before the laying of the pipe line in it was fl,400, and its value afterwards was destroyed; it could not be sold as a lot; no prudent man would put up a house on it. The plaintiff having called other witnesses who testified that by reason of the location and laying of the pipe upon the plaintiff’s lot, and the consequent danger of leakage of natural gas into the cellar of any house that might be built upon it, the lot was largely depreciated in its market value, rested. The defendant put in evidence the record of a proceeding in the Court of Common Pleas No. 2 of Allegheny county, showing that on Septemher 28, 1887, the defendant company filed in said court its bond to Jacob T. Keil, securing the payment of compensation for the appropriation of the right-of-way easement over his lot, for the pipe line in question, and that on October 31,1887, the court dismissed exceptions that had been filed to the bond and approved it. J. D. McCabe, an engineer of the defendant company, testified that the laying of the line on any part of the plaintiff’s lot was a mistake of the company’s foreman; the knowledge of the witness as to how it happened was not personal, however, hut had been received from the foreman, who at the time of the trial was in Indianapolis. At the close of the testimony the court, Cox/lieb, J., charged the jury as follows: This is an action of trespass to recover damages from defendant, a gas company, for going upon the lot of plaintiff without any authority of law whatever. It is conceded that the company went on the lot without any authority of law, and dug a trench, and put in a large gas pipe; and for that the plaintiff is entitled to damages, because the law does not permit any company, nor any person, to go upon the property of another and injure it in any way, without being liable to pay damages. But a short time after this injury, for which the plaintiff must have some damages, was done, about October 81st, I believe, the defendant company took regular proceedings under the law, by filing an appropriation plot, and bond securing plaintiff any damages for injury to the lot that he might show thereafter. [It is shown that the defendant filed a bond after having gone on the land without authority, and that, of itself, would not cure the trespass. But it appears that afterwards, regular proceedings were had, and, from the date of the confirmation of that bond, the 81st of October, damages to the plaintiff would stop. You can give damages up to that date, but not after, because in that proceeding, when it comes to he heard, the plaintiff will get the difference in value of his lot before the pipe was put down and after, as affected by it. In other words, he will then get full damages for the injury to the value of his property. So, the plaintiff is entitled, without any question, to damages in the amount yon may think this trespass cost him up to the 31st of October. That much he must have under the law. The next question in dispute here between the counsel is, whether yon shall add to that something to punish the defendant for going on this lot without authority. If you think from the testimony there was aggravation, outrage, wilfulness, grossness, wilful disregard of a man’s rights, you may add something by way of punishing. The rule of law ordinarily in trespass is to give only compensatory damages; that is, money to compensate what the damage really was; full damages. The learned counsel for defendant contends that this was nothing but an ordinary going upon a man’s land, cutting a ditch and putting a pipe down, without any intention to do any harm, or without doing any more than the ordinary damage; that there was no wantonness. He alleges there was some sort of a mistake. I do not see much evidence of it, but he contends there is nothing to make it a gross outrage. On the other hand, the learned counsel for plaintiff contends that the evidence shows maliciousness, grossness ; that the outrage was gross, and he puts it on this ground, and it is for you to judge; that plaintiff heard the company were going on his land, and went to inquire whether it was really true (because if it was true, he might have proceeded in court and stopped them till they gave the proper bond and took the proper proceeding) ; was informed that they were not going that way, and when he got away they went upon the land, and, as he says, took a short route and did this injury. He contends that was a malicious, positive outrage upon his rights, and you ought to punish them for it. If you find such was the case, that there was grossness, outrage, wilfulness, maliciousness, or aggravation, under the circumstances, you might add a reasonable amount to what you think he is entitled to, up to the 31st of October, by way of punishment. The case is not a very great one, but it involves the same principle regarding people’s rights as a much larger one. So, if I have made myself understood, and I think I have, for the counsel do not disagree about the principle at all, could not, because it is too well established, you must give the plaintiff compensation for the trespass upon his rights, up to October 31st, whatever you think that is. All after that will be tried in the other case, how much this pipe has damaged him, and cannot be tried in this, after October. For the injury done up to that time you must give compensation; and if you find there was grossness, outrage, maliciousness, wantonness, in the conduct of the company in going on this lot, you may add such sum by way of punitive damages as you think proper.] a You take the ease under the evidence, and do right between the parties, remembering that both sides have their rights under the law. The jury rendered a verdict for the plaintiff for $600. After argument, the court overruled a motion for a new trial, without opinion filed, and entered judgment on the verdict, whereupon the defendant took this appeal assigning for error: 1. The admission of plaintiff’s offer.1 2. The part of the charge embraced in [ ] 8
131 Pa. 476MacConnell v. Lindsay (1890)
APPEAL BY DEPENDANT FROM THE COUNT OP COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 260 October Term 1889, Sup. Ct.; court below, No. 362 October Term 1889, C. P. No. 2. On September 2, 1889, an amicable action of assumpsit was entered in the court below between Matilda G. MacConnell, plaintiff, and Reese Lindsay, defendant, the following case being stated for the opinion of the court: On June 19, 1889, the plaintiff, Matilda G. MacConnell, devisee under the last will and testament of Eveline Gross, late of Pittsburgh, deceased, sold to the defendant, Reese Lindsay, a lot of ground situate at the northeast comer of Conrad and Harriet streets, in the Twentieth ward of the city of Pittsburgh, .... at and for the price or value of $3,300, of which the sum of $100 was then paid and the residue, $3,200, was to be paid on the delivery of a general warranty deed, on or before July 15, 1889; and it was agreed, inter alia, that the property was to bo free from liens and encumbrances. A deed in proper form, duly executed by the said Matilda G. MacConnell and by Thomas MacConnell, Jr., her husband, was duly tendered to said Reese Lindsay and the payment of said $3,200 demanded, but said Reese Lindsay refused to accept the title and to pay said sum of money, upon the ground that said deed would not pass to and vest in the purchaser a good title in fee-simple. It is further agreed that Eveline Gross, late of the city of Pittsburgh, died, seised in fee-simple of the said lot of ground, and. by her will, duly probated September 4, 1888, and registered in the office of the register of wills, etc., in and for the county of Allegheny, she devised said lot of ground, being parcel of a larger tract of land and being also a part of the residuary estate of said testatrix, to said Matilda G. MacConnell, in the manner following, to wit: “7.1 hereby bequeath and devise to my said adopted daughter, Matilda Gross MacConnell, all the rest and residue of my estate, real, personal and mixed, absolutely and in fee-simple, and including therein any and all legacies which may lapse by reason of the decease of any beneficiary or otherwise; and it is my will that the said Matilda Gross MacConnell shall take and hold the property hereby given to her free from the control of her present or future husband, and without any liability for any debts, liabilities or engagements of such husband, but wholly for her own use and benefit, and subject to her own control.” If upon the agreed facts above stated, the court shall be of opinion that the plaintiff is entitled to recover, then judgment shall be entered in favor of the plaintiff and against the defendant, Reese Lindsay, for said sum of $3,200, with interest from July 15, 1889; but if the court shall be of the opinion that the plaintiff is not entitled to recover upon the facts stated, then judgment shall be entered against the plaintiff and in favor of the defendant for $100, the sum paid to plaintiff as aforesaid, and costs. Each of the said parties shall be entitled to an appeal and writ of certiorari to have the judgment which may be entered in this case reviewed by the Supreme Court. After argument the court, Ewing, P. J., entered judgment on the case stated in favor of the plaintiff for $3,200; with interest from July 15, 1889, filing the following opinion: The question in this case is, does the will of Eveline Gross devise to Mrs. Matilda G. MacConnell the ordinary statutory separate estate in the land in question, or does it give to her the technical trust estate for her separate use, excluding the marital rights of the husband ? If the former, she has the power to convey a good title. If the latter, she cannot exercise any power not expressly given to her in the will: Lancaster v. Dolan, 1 R. 231; Wright v. Brown, 44 Pa. 224, overruling Haines v. Ellis, 24 Pa. 253. The devise is in the following words :..... Heading the whole will, it is evident that the testatrix intended a large bounty and control thereof to her daughter, but we see nothing in the other parts of the will to control or affect the words used in the devising clause quoted. It is impossible, to us, to reconcile the various Pennsylvania cases on this subject, even where not overruled. What constitutes a sole and separate use ? It has been said that a clear intent to exclude the marital rights of the husband, constitutes a separate use. In Morrison v. Dollar S. Bank, 86 Leg. Int. 215, it is said that this is simply substituting one definition for another. While for her “ separate use,” or for her “ sole and separate use,” are the technical words to create such estate, yet no particular form of words is necessary. “It is sufficient if the instrument creating the estate distinctly and unequivocally express the intention to bar the husband’s marital rights, and create an estate for the use of the wife separate from her husband’s : ” Trunkey, J., in Morrison v. Dollar S. Bank, supra. Prior to the act of 1848, when marriage was practically a gift by the wife to the husband, or his creditors, of all she had at the time of her marriage, and all that should be given to her, or that she might inherit during coverture, the humanity of the judges revolting against the barbarity of the law, caused the courts to be liberal in construing bequests and devises to married women, as being for their sole and separate use. Unless the effect of the words of this will is modified by the Married Woman’s Act of 1848, and the Married Person’s Property Act of 1887, it vests a sole and separate use in Mrs. MacConnell. She is to hold the property “ free from the control of her present or future husband,” without any liability for his debts, liabilities or engagements, and “ wholly for her own use and benefit.” As the law stood prior to 1848, this would have been a very complete exclusion. of the husband’s marital rights, and at the same time a declaration that it is for the sole use and benefit of the wife independent of her husband ; “ wholly for her own use and benefit.” In Jamison v. Brady, 6 S. & R. 465, a bequest to “ Martha Brady for her own use,” she then being a married woman, was held to be for her separate use, and the husband was ex-eluded. In Snyder v. Snyder, 10 Pa. 423, a bequest to a widow of all the real and personal estate of the testator for her own proper use during her life, and then over, was held to create a separate use, and to exclude the marital rights of a second husband. In Craig v. Watt, 8 W. 498, a devise to a widow for life, with a proviso that in case of re-marriage her husband should have no dominion over the property, was held to ci'eate an estate for the separate use of the widow. The fundamental idea of a separate use is to bar the husband’s dominion over the property, and to give the wife the use and benefit of it independent of the husband. It is well settled in Pennsylvania that the intervention or non-intervention of a trustee, to hold the legal title to protect the separate use, is immaterial: Wright v. Brown, supra. Logically, a devise in favor of a married woman which in terms barred no dominion of the husband except that which the law does not give him, should be held to convey the same estate which it would convey by a simple devise in fee, without mentioning the husband or the use. A proviso which would in terms forbid the devise by a husband of his wife’s land, would not be supposed to create a separate use or to have any effect whatever. By the act of April 11, 1848, the property of a married woman, owned before marriage or acquired by will or otherwise after marriage, “shall be owned, used and enjoyed by her as her own separate property, and shall not be subject to the debts or liabilities of her husband.” The Married Person’s Property Act of 1887 still further enlarges the powers of a married woman over her property, and as to its management, control and use for her own benefit, she is as though she were a feme-sole, except that she cannot convey or mortgage it without the consent of her husband. The act is in • these words: “ That hereafter marriage shall not he held to impose any disability on or incapacity in a married woman as to the acquisition, ownership, possession, control, use or disposition of property of any kind, in any trade or business in which she may engage..... But every married woman shall have the same right to acquire, hold, possess, improve, control, use or dispose of her property, real and personal, in possession or expectancy, in the same manner as if she were a feme-sole, without the intervention of a trustee, and with all the rights and liabilities incident thereto, except as hereinafter provided, as if she were not married; and property of every kind, owned, acquired or earned by a woman before or during marriage shall belong to her, and not to her husband or his creditors.” The exception is, that she cannot mortgage or convey her real estate without her husband joins in the mortgage or conveyance. With these acts of assembly in force, the will of Mrs. Gross “became of effect” at her death, in 1888. Her will excludes the husband of Mrs. MacConnell from no right or dominion over the property from which the law does not exclude him. In Rank v. Rank, 120 Pa. 191, and other cases, it is declared that even in the case of a separate use in the wife, the husband has his life estate after her death. What right to use or enjoy the property, or to control it for her own use, has Mrs. MacConnell, under the terms of the will, which she would not have had if the last clause of the eighth paragraph of the will had been wholly omitted ? In Todd’s App., 24 Pa. 429, it was held that, the separate estate of a married woman means “an estate held by somebody in trust for her, and not an estate the legal title to which is in herself.” And in Ilaines v. Ellis, 24 Pa. 253, it was held that under the act of 1848 all these separate estates, whether held in trust or not, were alienable as directed under the act of 1848 and its supplements. In Wright v. Brown, 44 Pa. 224, these cases were overruled, and it was held that the act of 1848 did not apply to the separate estate of a married woman as it had theretofore been defined, whether held by a trustee or the legal title devolved on the married woman, and that the law in regard to separate uses was wholly unaffected by the act of 1848. In that case, which was a devise in fee-simple to the daughter of the testator, followed by words which clearly limited it to a separate use, there was no question discussed, says Justice Green, in Ringe v. Kellner, 99 Pa. 460, as to the character of the devise, conceding it to be a separate use, but the controversy was on the power of alienation in view of the act of 1848, and it was held that that act did not affect this class of estates, to wit, equitable separate estates. The case of Wright v. Brown has been followed without serious dissent, though the tendency has been to hold estates to be untrammeled by a technical separate use. In Bailey v. Allegheny N. Bank, 104 Pa. 425, under a testamentary trust “ that no one of the husbands or wives of my said children shall have 'any interest or control over the property bequeathed, but the shares of my said children shall belong to them separately and exclusively,” it was held not to create a sole and separate use. Granting that the decision in Wright v. Brown is strictly correct, that the separate trust estate of a married woman is not alienable under the act of 1848, is not included in that act, it does not follow that the act should not have an effect in determining what words are necessary to create such estate. Under the act of 1887, what place would there be under this will for declaring the husband, or any" other person, a trustee for the wife as in a sole and separate use ? The act says the married woman shall “ hold, possess, control and use her property as if she were a feme-sole without the intervention of any trustee.” If Mrs. MacConnell were in fact feme-sole she could convey a good title. This will gives to Mrs. MacConnell precisely the estate which the law would have made it had the testatrix added no words after the words, “ I devise and bequeath all the rest and residue of my estate, real and personal, to Matilda Gross MacConnell in fee-simple,” unless the statutes of 1848 and 1887 are to he held not to mean what they say, and judicial interpretation, following a technical rule for which the reason has passed away, shall annex a condition plainly not intended by the testatrix and injurious to the devisee and to .the public interest. We are of the opinion that the will in question vested in the plaintiff an estate in fee-simple which she has power to convey and that the plaintiff is entitled to recover. Judgment having been entered for the plaintiff for the sum of |8,200, with interest from July 15,1889, the defendant took this appeal, specifying that the court erred: 1. In not entering judgment for the defendant for $100 and costs. 2. In entering the judgment rendered for the plaintiff.
131 Pa. 492Christy v. Sill (1890)
APPEALS BY G. W. GUTHRIE AND EDWIN BINDLEY EROM THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY, IN EQUITY. Nos. 168, 159 October Term 1889, Sup. Ct.; court below, No. 211 January Term 1881 (acct. at No. 180J- July Term 1888), C. P. No. 2, in Equity. On November 8,1879, to No. 150 January Term 1880, C. P. No. 2, J. T. Stockdale, trustee of the Pittsburgh Savings Bank, filed a bill in equity against Michael Maginn and others, shareholders, for a dissolution of the bank, for a receiver, and for an account; and on November 22, 1879, B. C. Christy was appointed the receiver. Among the assets of the bank was cer-. tain real estate, to secure possession of which the receiver brought ejectment, at No. 211 January Term 1881, against Bella H. Y. Sill et all. Before the final determination of this ejectment, it was compromised, the receiver being made a trustee for himself and the defendants in the ejectment, to sell the land and distribute the proceeds according to a certain method. On April 28,1888, to No. 180J July Term 1888, Mr. Christy, as trustee, filed an account of the fund realized by him from the sale of the land, amounting to 112,486.55, and on June 15, 1888, Mr. Magnus Pflaum was appointed auditor to distribute the fund. Subsequently, of the fund for distribution, $11,295.30 was awarded to B. C. Christy, receiver of the Pittsburgh S. Bank. On September 8, 1888, on motion of Mr. A. M. Brown for creditors of the Pittsburgh S.- Bank, but, as it Avas claimed, without notice, and notwithstanding the pendency of the proceedings at No. 150 January Term 1880, in which the receiver was appointed, and that the order appointing Mr. S. A. Me-Clung general master in that case was still in force, the court made an order that the order appointing Mr. Pflaum auditor be enlarged by adding thereto the further direction that the said auditor should report a distribution of the fund, to wit, $11,295.30, in the hands of the receiver. It was in the distribution of this fund that the contentions herein arose. In his report, the auditor found that the Pittsburgh S. Bank was a copartnership composed of a great number of persons holding shares of the capital thereof, and was organized under articles of association containing inter alia the following paragraphs : “ 26. Any stockholder wishing to sell his stock, must offer it to the board at a stated price. If not accepted by them, he may dispose of the same elsewhere, as he may elect. “ 27. All stockholders are hereby individually bound to make good to all depositors the amount of their deposits.” Transfers of shares were made by the holders at different times from the year 1872 to August 25, 1876, when the last transfer was made. The transferees took the place of their assignors, without any change of the firm name or place of business; and the bank carried on business Avith its customers, old and new, as if no change of shareholders had taken place. On January 4, 1887, the bank suspended business. Among the disputed claims presented for allowance were the following: 6. James A. Hutchinson claimed $1,070.79, for moneys paid upon a judgment obtained in 1879 by John Ubalto against the Pittsburgh S. Bank and certain shareholders, among whom was said James A. Hutchinson. The indebtedness to the judgment plaintiff was incurred May 6, August 28, and September 21, 1875 ; and all the defendants had ceased to be partners in the bank before the suit was begun, having withdrawn On various dates between January 29, 1872, and August 25, 1876. 7. G. W. Guthrie, trustee, whose claim, as it was stated, originated as follows: After the suspension of the bank, various parties who had been shareholders at different times between January 29, 1872, and August 25,1876, but all of whom had sold and transferred their shares therein, and had given notice thereof by advertisement prior to August 25, 1876, entered into an agreement with each other, in pursuance of which they advanced $21,449.25 to said trustee, with which he purchased and took assignments of the following claims: Claimant. Character. Date of Claim. Situation. Marked. Julius Knopf, Cert, of deposit, May & Oct.,’73, Judgment. C. “ “ & wife, “ “ October, 1873, “ D. John O’Brien, “ “ January 16, 1874, “ E. Z.S. Haines, Adm. “ “ March 1, 1877, ? “ a “ “ Bal, of deposit, Sept. 1, 1877, £ “ x Fred. Osterling, Cert, of deposit, January 4, 1878, “ F. City of Pittsburgh, Bal. of deposit, After Sept., 1876, In suit. H. Some of the parties contributing to this fund had sold and transferred their shares in the hank before any of these claims originated, and all of them had done so before the claim of the city of Pittsburgh originated. The certificates of deposit on which claims A and E were based were issued after all said parties bad so sold and transferred their shares, but some of the deposits for which tbey were issued were made before, and some after sucb sale and transfer. By tbe terms of the agreement, any money realized from tbe assets of tbe bank was to be distributed among tbe contributors to the fund in the order in which tbey had sold their shares. 8. Edwin Bindley claimed an interest in eacb of two judgments; one, in favor of Joseph Clements obtained in 1880 against the Pittsburgh S. Bank and certain partners therein, the cause of action arising on December 26, 1873, and tbe assignment to tbe claimant having been made on March 8, 1880; the other, in favor of Julius Knopf, obtained in 1880 against said bank and certain members thereof, the indebtedness having been incurred March 15, May 23, October 10, 1873, and the assignment to tbe claimant having been made in March, 1881. As to the claims mentioned, the auditor reported as follows: The auditor is of opinion that all the foregoing claims are controlled by the following principles: 1. Creditors of different partnerships, composed in part of the same members, must establish their rights through the medium of such membership. “The equity of the creditors must be worked out through the medium of that of the partner : ” Doner v. Stauffer, 1 P. & W. 198; Snodgrass’s App., 13 Pa. 471; Baker’s App., 21 Pa. 76; York County Bank’s App., 32 Pa. 446; Frow’s Est., 73 Pa. 469; Scull’s App., 115' Pa. 148. In Pennsylvania, “ joint stock associations ” are merely partnerships, and in Clarke’s App., 107 Pa. 136, it has been so decided as to the Pittsburgh S. Bank. Plence the principles ruled in the foregoing cases apply with full force. The fund belongs exclusively to the parties to the present bill in equity, they being the membership of the bank at its suspension. It has been decided that upon a transfer of partnership interests, the remaining partners have exclusive con.trol and ownership of the partnership assets: Baker’s App., 21 Pa. 76; Clark v. Wilson, 19 Pa. 414; Bullitt v. M. E. Church, 26 Pa. 110; Clarke’s App., 107 Pa. 436. The bank, being but a partnership, changed upon each transfer of stock from an old to a new copartnership; and with such change of the rights of the various members, also the right of creditors changed. Although, in appearance, the bank remained in all respects the same, yet in law their claims against the old firm conld not have been collected from the new. The incoming partner was as little bound for the payment of the old debt as the old creditors were bound to look to him for payment: Kountz v. Holthouse, 85 Pa. 235. Each successive firm was liable for the payment of its own debts, and the assets of each firm, while kept intact, belonged first to the creditors of such firm; but when these assets became the property of a succeeding firm, its creditors had the sole right thereto, and the old creditors had to look to the individuals who composed the old firm for payment. An incoming partner may become liable for the debt of the old firm by agreement, but the presumption of law is against such liability: Kountz v. Holthouse, 85 Pa. 235. No proof was offered in the present case of such agreement. 2. Upon a transfer of partnership interests the assets vested in the remaining or incoming partners are not a trust fund for the payment of the debts of the old firm, hut the obligation to pay such debts becomes an individual liability of each member of the old firm. The creditor of the old firm, or the outgoing partner who had to pay such debt and by subrogation takes the place of such creditor, has no lien against the assets of the new firm, and must give way to the rights of the creditors who had dealings with and who alone have a lien upon the assets of the new firm. Nor does the assumption of an agreement to pay the old debt by the remaining or incoming partner, and giving indemnity therefor, preserve the lien. Such agreement is but a personal obligation and must be so enforced: 1 Bates on Partnership, § 551; Baker’s App., 21 Pa. 76; York County Bank’s App., 32 Pa. 446. ' - This principle does not apply where “ upon the accession of a new member a new promise has been made by the entire new firm in respect to the payment of the old debt, with the consent of the old partners as well as the creditor.” In such case, “ it would amount to a novation of the debt and the new firm will be liable: ” Story on Partnership, § 153. Here such facts do not exist; on the contrary, the various creditors, not having given their consent to the transfer, had brought suit and recovered their debts from the former partners, and even as to the exclusive liability of the remaining members of the new firm for these debts, the facts are not entirely clear. The claimants 6 and 7 base their rights to repayment upon the fact that the articles of association permit a transfer of the stock, and that having so transferred, they became absolved from the payment of the partnership debts then existing. However, some force should be given to the further provision in the articles of association, article 27: “ All stockholders are hereby individually hound to make good to all depositors the amount of their deposits.” This was an agreement more between the stockholders themselves than between the stockholders and the depositors. As to tbe latter, this provision was unnecessary; the law protected them. But as between the stockholders, it would seem that by the mere withdrawal of a solvent stockholder and the substitution, as may be the case, of an insolvent transferee without consent of all the other stockholders, this nidi vidual liability cannot be shaken off. It may be doubtful whether even the consent of the directors, in the absence of express authority, could release such withdrawing stockholder from this liability, and this especially if the bank was insolvent. The transfer of stock seems to have been loosely conducted by the bank, and the testimony on this point is very unsatisfactory. That the transferer should not be indebted to the bank seems to have been the only care of the directors, and no attention was apparently paid to the fact whether the bank was solvent or insolvent when stock was transferred. An affirmative fact not proved is taken as not to exist: York County Bank’s App., supra. Hence, whether the bank was insolvent before September 11,1875, must be taken in the negative. But on said date the bank was found to be, and until its suspension remained, insolvent, and some of the outgoing partners, who now desire repayment for debts of the bank paid by them, withdrew after said date. Out of twenty-five, five belong to this class, whose joint contribution was $4,650 to the fund out of which these debts were paid. The interests, however, of all these parties are so intricately combined, that no severance of their rights can now be attempted. 3. Because the claims 6 and 7 are, with one exception (the city of Pittsburgh claim), in judgment, and as such have been offered in proof against the fund, does not lend any strength to their claim to share in its distribution. The judgments are no liens upon the fund. They were not liens upon the land which produced the fund, nor were the defendants in those judgments owners of the land. The judgments merely serve the purpose of proving the exact amount the claimants were forced to pay as former partners of the - bank, and for which payments they want to be reimbursed. 4. The payment of these claims constituted those paying them sureties, and as such they had rights for repayment against the remaining partners: Shamburg v. Abbott, 112 Pa. 6. That case, based upon facts similar to the present, points out that such sureties may enforce their rights either by an independent action or by way of subrogation. The subrogation, by reason of the assignment to G. W. Guthrie, trustee, can only be of effect against the co-defendants in each judgment whose names are specifically given in the findings of the facts in each claim. These defendants are not the members of whom the last firm or partnership was composed. And subrogation cannot be had against parties not defendants of record and who had no day in court. The other remedjq action of indebitatus assumpsit, was not brought, and this seems to the auditor the only remedy the sureties had. In Bullitt v. M. E. Church, 26 Pa. 110, it was held that the outgoing partner had a right to demand of the remaining partner the payment of the partnership debts, but that a suit on the contract was the only means of enforcing that obligation. But now, more than six years have elapsed since they became sureties, and their rights are barred by the statute of limitations. It follows, then, that these parties have neither a lien upon the fund, nor rights against the owners of the fund. 5. The cases referred to in support of claims 6 and 7 are : Worrall’s App., 41 Pa. 524; Datesman’s App., 77 Pa. 248, and Schlaudecker’s App., 22 W. N. 37. The first two cases treat of rights as between lien creditors, and have therefore no application to the present contention, in which the parties have no lien whatever upon the fund. Schlaudecker’s Appeal is of still more remote application. It decides that in a corporation of which the members are individually liable, outside of and in addition to their stock in the corporation, this liability is merely a guaranty, and such ultimate liability could not deprive the members, who were also creditors, from sharing in the distribution of the fund. In that case, also, the claimants had a lien upon the fund which here is entirely wanting. The claims 6 and 7 the auditor finds, for the reasons above given, are not entitled to share in the fund, and should be excluded from sharing therein. 8. As to the claims of Edwin Bindley, the auditor finds: A. 1. That Joseph Clements, at 372 January Term 1880, sued the Pittsburgh S. Bank, and on February 21, 1880, obtained judgment (amount not liquidated) against the following members: M. & H. Herzog, E. & C. Maginn, J. C. Bindley, A. Abrams and Jacob Fink. 2. That the cause of action arose December 26, 1878. 8. That on March 8, 1880, the said judg- ment was assigned, inter alia, the one seventh to the said Edwin Bindley. B. That of the judgment of Julius Knopf, No. 200 March Term 1880, the same specified in claim 7, C, the sum of §500 was assigned to the said Edwin Bindley. These two claims belong to the same class as claims 6 and 7, and the opinions expressed as to them apply fully to these two. claims, and for the same reasons there given they should not share in the fund. However, there is an additional ground of exclusion. Edwin Bindley purchased an interest in each of the two judgments. He is a stranger to the record, and to the defendants therein, as well as to the persons whose fund is now being distributed. He has no legal rights nor any equity whatever to the fund. The auditor, therefore, is of opinion that these claims should be excluded from the distribution of the fund. To the foregoing report, G. W. Guthrie filed exceptions alleging that the auditor erred, inter alia, as follows: I. In distributing any portion of the fund awarded to B. C. Christy, receiver, and reporting a distribution of the same among the creditors of the Pittsburgh S. Bank. 4. In excluding the claims of G. W. Guthrie, trustee, and . in refusing to permit the same to participate in the distribution pro rata with the other creditors of the bank. II. In failing to find, in relation to claim H, that there was due the city of Pittsburgh, for deposits made by it in said bank during the year 1877, the sum of $41,580.60. . 21. In finding that “ each successive firm was liable for the payment of its own debts, and the assets of each firm, while kept intact, belonged first to the creditors of such firm; but when these assets became the property of a succeeding firm, its creditors had the sole right thereto, and the old creditors had to look to the individuals who composed the old firm for payment.” 25. In not finding that under the articles of association any stockholder had the right to transfer his stock therein, with the consent of the board of directors; and that when any stockholder sold his stock in good faith, and with the consent of the directors transferred the same on the books of the bank to the purchaser, who was accepted as a stockholder in his stead, the retiring stockholder thereupon- ceased to be a member of the firm, and was entitled to be indemnified from all the debts thereof; and that the remaining stockholders and the new stockholder thereupon become liable for all the debts of said bank, and bound to indemnify him against the same. Edwin Bindley filed exceptions alleging that the auditor erred in excluding his claim from the distribution. The said exceptions, having been overruled by the auditor, they wore renewed in court on the filing of the report. After argument, they were dismissed by the court, White, P. J., and the distribution reported by the auditor was confirmed. Thereupon G. W. Guthrie, trustee, took the appeal to bio. 163, and Edwin Bindley took the appeal to No. 159, specifying for error, severally, that the court erred in dismissing their respective exceptions.
131 Pa. 507Stockdale v. Maginn (1890)
APPEAL BY G. W. GUTHRIE ¡FROM THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY, IN EQUITY. No. 160 October Term 1889, Sup. Ct.; court below, No. 150 January Term 1880, C. P. No. 2. in Equity. The proceeding in the court below, from which this appeal was taken, was the distribution by Mr. S. A. McClung as master, of the sum of $1,295.54, the balance in the hands of B. C. Christy, receiver of the Pittsburgh Savings Bank, as shown by his account filed on July BO, 1887.
131 Pa. 509Rummel v. Dilworth, Porter & Co. (1890)
APPEALS BY DEPENDANTS PROM THE COURT OP COMMON PLEAS NO. 1 OP ALLEGHENY COUNTY. Nos. 90, 91 October Term 1887, Sup. Ct.; court below, Nos. 269, 270 December Term 1882, C. P. No. 1. On October 23, 1882, writs of summons were served in two actions in case, one by George Rummel, Jr., by his next friend, George Rummel, against Dilworth, Porter & Co., Limited, and the other by George Rummel against the same defendant. The plaintiff in the case last named was the father of the plaintiff in the first named case. Issues. The two cases were tried together on January 25, 1884, before Collier, J., and at the close of the plaintiffs’ testimony, on motion of the defendant, judgments of nonsuit were entered, which on error to this court were reversed: Rummel v. Dilworth, 111 Pa. 343. George Rummel, Jr., died on August 24,1884, and his father, George Rummel, as his administrator, was substituted as plaintiff in the first named action. At the second trial of the cases together on December 15, 1886, the facts made to appear were in substance as follows: On September 6, 1881, George Rummel, Jr., then about seventeen years of age, went to work as a “ drag-down ” in the mill of the defendant company. His duty was to drag heated billets of iron from the furnace to a train of ten pairs of continuous rolls, by means of which they were converted into material for spikes. Two drag-downs served each pair of rolls and they were required to move with rapidity. The rolls were in pairs, and between each pair was a distance of about two feet. In this space was what was called a “ gate,” which consisted of two bars of metal, perpendicular or nearly so, fastened to tbe floor by binges. These bars were kept upright in their places by a chain tightly drawn from tbe top of one to the top of tbe other, and they held between them small rollers upon which the heated billet would move in its passage from one pair of rolls to the other. Sometimes the billet, too hot or soft, would bend downwards as it was passing from one pair of rolls, and would then stick by failing to reach tbe rollers on the gate. When this would occur, an adjustment was made by loosing the chain from the top of the gate bars, so that the billet would be caught and carried on its way, or removed. The pairs of rolls were kept in motion by a system of cogwheels at the ends of tbe rolls. These wheels were guarded by a board railing at tbe sides of the train, except at the place between the first and second pairs of rolls. To reacli the gate between these pairs, and make its adjustment when necessary, the person in charge called the “ roller,” or his assistant, was obliged to step quickly to tbe point, to loosen tbe chain at the top of tbe gate bars, and when tbe billet was caught, to reach over tbe cog-wheels and with both hands catch the bars, draw them together, and replace the chain. This adjustment had to be done carefully and quickly also, to be ready for tbe heated billet following. On September 10, 1881, when young Rummel had been working in tbe mill for four days, a heated billet stuck at the gate between tbe first and second pairs of rolls. Rummel opened the gates by using an appliance kept for tbe purpose, and in adjusting it again for the next billet he was caught in the cog-wheels of tbe second pair of rolls, his leg drawn into them and so crushed that amputation was necessary.* The defendants introduced testimony from which it was claimed that the operation of the trains of rolls was turned over by the defendant firm to a pair of men known as “ roller bosses,” and these roller bosses operated the rolls with a force employed by themselves; that, in fact, tlie defendants bad nothing to do with such employees as young Rummel, and had no control over them; that Rummel’s sole duty in his employment as a drag-down was to assist in taking the billet from the furnace to the rolls, when it became the duty of the “ roller ” and his assistants to superintend its passage through the train; that Rummel had at various times before been employed as a drag-down, doing spare work; and that not only had he been cautioned not to go in to the gate, but was familiar with the danger at the time he was injured. Other matters of defence shown appear in the charge to the jury, Collier, J.: It is alleged by the learned counsel for the plaintiff, and evidence has been offered tending to show the theory that George Rummel was employed at the defendants’ mill as a drag-down, or, that he took the place for a few days of his brother, who was regularly employed there; however, that is' not very material. He alleges that in addition to his duty, his primary duty as a drag-down, which you have had explained to you very fully, he was permitted, with the knowledge of the roller-boss or bosses, to go in where these cogs were, and unshift them in order to let the billets pass through the rolls; that in doing this he was caught by the cogs and injured, and this because a board, which would have been a protection to him, was not along these cogs. That is the main allegation of negligence. The first matter for you to determine is the question of negligence. It is alleged that along a part of this train of rolls there was a board from one and a half to two feet high, which was a protection, or at least a partial protection, against striking or being caught in the cogs when they leaned over to this apparatus which they threw open to let the billet go through the rolls. It is alleged that the want of that board there, was the cause of the injury to George Rummel. It is also alleged that while Rummel’s primary duty as a drag-down was only to put the billets in the rolls, yet the boss or bosses permitted him and others, and he was accustomed to open these gates with their knowledge and consent. That is for you to determine. Apply the evidence to that: How was it? Rummel had been working there four or five days. It is allegecL that on this morning, when he was injured, Mr. Richards, the boss, and some of the assistants were there, or about there at the time; and it is alleged that Rummel, with the knowledge of Mr. Richards, went around to open the gates; that Richards knew and approved of it, by his acts allowed him to do it; that other drag-downs had been allowed to do the same thing when the bosses were not present. It is alleged that Richards allowed him to do this; that the boy knew what others had been allowed to do, and that he permitted it by his presence and thereby approved of it. That is for you to determine. If Mr. Richards, whose duty it was to see to this matter, knew the boy was doing this and permitted it, it was, as a matter of course, with his approval. Now, the defendants deny that. They allege that this lad was cautioned not to go in there; that drag-downs had been allowed to open the gates only when the others were not about, and that Rummel must have seen Mr. Richards on the ground at the time. You will have to determine how that was. If these be the facts, it was a voluntary act on the part of the boy, and he would have no right under such circumstances to hold the owners of the mill liable for his own. negligence. That is the first question in the case. You will talk that matter over among yourself in discussing the evidence. You saw the witnesses upon the stand and are the judges of their credibility. However, I may say to you that it was clearly not this boy’s primary duty to go there at all. His primary duty was to put the billets in the rolls. But it is contended that with the consent and approbation of the roller boss he went there and got caught in the cogs by reason of the board not being there. Now, if you find that was the case, and he went around to open the gates and that by reason of the board not being there the injury was caused, then the plaintiff in each case would be entitled to recover. That brings the whole question down to a very narrow compass. The plaintiff cannot recover unless he shows you that this boy was hurt by reason of the absence of that board there; that that was the cause of the injury, and it not being his primary duty to do this, that the boss permitted him to do it, or, with his knowledge and consent, saw it, and made no objection. The law requires that employers shall provide for their servants or people who work for them, or under their bosses, not absolutely safe, but reasonably safe and secure machinery and appliances. This board was not machinery, but it was part of the appliances. That is the law and it is not disputed by the counsel. You will direct your attention to the evidence as to negligence. Did this boy do this, with the knowledge and approval of his employer or boss ? And, in putting up this machinery, was the omission to extend this board along and past these cogs, an omission of duty to supply reasonably safe machinery ? All this must be found by you to enable the plaintiff to recover, and if the weight of the evidence does not satisfy you of it, that is the end of the case. Now, gentlemen, the defence is the exact opposite of this. I will call your attention to the allegations on the part of the defence. The defendants allege that this boy Hummel had been working there for a few days, taking the place of his brother; that ■he was a drag-down; that he had notice, not from the boss, it is true, but that he had notice that he was not to go in to these gates, to open them; that he would get hurt if he did. It is alleged, also, that Mr. Richards was present at the time, and that there is no evidence that he saw the boy or knew he was going to open the gates at all; that he was there on the ground to perform his duty, but that the boy slipped around to the gates and the accident occurred. It is further alleged that it must have been known to the boy that the board was not there, and knowing that, and having had notice that he ought not to go there, that would prevent a recovery. If he saw there was no protection there, that the board did not cover these cogs and he chose to risk it, particularly after notice, if he had notice, he was a volunteer, and the plaintiff could not recover against the owners of the mill. This is all denied on the part of the plaintiff. He says that the two witnesses who testified to the notice were contradicted. You will determine that. But if that was a fact; if Mr. Richards or his assistants were there to perform this duty, and this boy went around and opened the gates, without his knowledge, the plaintiff cannot recover. Or, if the boy saw that the board was not there and saw that it protected the other cogs, then there can be no recovery. But on the part of the plaintiff that is utterly denied..... The court is requested by the plaintiff to charge: 1. That defendant company was in duty bound to provide reasonably safe appliances and machinery around about which deceased was employed to work at the time he was injured, as described by witnesses; and if defendants voluntarily subjected deceased to dangers which they ought to have provided against, and the injury sustained by deceased on September 10,1881, was the result of a want of proper provision against such danger, the defendants may be held liable in this action. Answer: Affirmed; exception.4 5. That the scope of duty within which a servant is entitled to protection is to be defined by what he was employed to do and what, with the knowledge and approval of his employer, he did perform, rather than by the verbal designation of his position ; and if the jury find from the evidence that George Rummel, the deceased, was, at the time he was injured, performing service with the knowledge of the roller-boss, Richards, and his approval, and was injured while performing that service, without contributory negligence on his part, they may, under all the evidence, find for the plaintiff such damages as will make the plaintiff whole, in the exercise of their judgment and discretion. Answer: Affirmed, subject to the instructions in the general charge; exception.5 The court is respectfully requested to charge the jury on the part of the defendants : 1. That there is no sufficient evidence of negligence on the part of the defendants which contributed to the injury of George Rummel, deceased, and that, therefore, their verdict must be for defendants. Answer: Refused; exception.1 l£. That there is no evidence in the case that the machinery on which George Rummel was injured was not of an ordinary character and such as could with reasonable care be used without danger, except such as was reasonably incident to such use; and that there is no evidence of any complaint on the part of any one to the defendants of any defect in said machinery, or omission of any reasonable precaution for safety in connection therewith, nor of any knowledge on defendants’ part of any defect or omission, and that therefore the verdicts of the jury must be for the defendants. Answer: Refused; exception.8 3. If the jury find from the evidence that George Rummel was injured while in the performance of an act which it was no part of his duty to perform, there can be no recovery in these actions, and the verdict of the jury must be for defendants. Answer: Affirmed, with the qualification that the scope of duty within which a servant is entitled to protection is to be defined by what he was employed to perforin, and what, with the knowledge and approval of his employer, he did perform, rather than by the verbal designation of his position; exception.6 The jury returned a verdict in favor of the plaintiff in No. 269, for $165; in favor of the plaintiff in No. 270 for $1,815.50. Rules for a new trial having been discharged, the defendants took these appeals assigning for error: 1, 2. The answers to the defendants’ points.18 4, 5. The answers to the plaintiff’s points.4 5 6. The answer to the defendants’ point.6 The causes were argued together on October 26, 1887. On January 7,1889, a re-argument was ordered which was had on October 28, 1889, before Paxson, C. J., Sterrett, Green, Clark, Williams, McCollum and Mitchell, JJ.
131 Pa. 522Penn Gas Coal Co. v. Versailles Fuel Gas Co. (1890)
APPEALS BY PLAINTIFFS FROM' THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY, IN EQUITY. Nos. 20, 21 October Term 1890, Sup. Ct.; * court below, numbers and term not given. On November 18, 1889, the Penn Gas Coal Company filed its bill in equity against the Versailles Fuel Gas Company in substance averring: That the plaintiff was the owner in fee of the coal underlying certain tracts of land in Westmoreland county ; that the acquisition of its title to the coal was accompanied with the privilege to make drains on the surface and air holes, and from time to time to change the drains and air holes, or either of them, as the convenience of mining might require, together with all mining privileges, on the surface or under it, necessary to the removal of the coal, and without responsibility for damages for the sinking or falling in of the surface by reason of the removal of the coal; that the defendant proposed to enter upon and occupy said tracts of land for the purpose of constructing and operating a pipe line for the transportation of natural gas, in the exercise of the power of eminent domain alleged to have been conferred upon it by the act of May 29, 1885, P. L. 29, and threatened so to enter and occupy without tendering to the plaintiff a bond securing the payment of the damages to the plaintiff’s underlying coal; that the defendant had not taken any steps to obtain a decree from the Court of Common Pleas of Westmoreland county defining the precautions which should be taken in laying its pipes, but was proceeding to construct its pipe lino in a manner prejudicial to the rights of the plaintiff, and dangerous to those of the community, because it was laying its pipes at the depth of about two feet below the surface, and there was imminent risk that in mining the coal in the usual and customary manner, and in accordance with the plaintiff’s mining rights, the surface whereon the pipe is laid would sink or fall in, and should this occur damage of the gravest character by the breaking or disjointing of the pipes and the escape of explosive gas therefrom into the mine, would inevitably ensue; that the risk of this sinking of the surface could not be avoided without to a large extent abandoning the ordinary and customary development of the plaintiff’s mine and leaving large bodies of coal in place; that the pipes proposed to be laid were cast-iron pipes, which were not so durable as wrought-iron pipes, and the danger aforesaid might be measurably avoided if the defendant would use pipes of wrought-iron, elevating them above the ground, or inclosing them in adequately strong boxes, open at the top. The bill prayed for an injunction restraining the defendant from entering upon and occupying any portion of the surface of said tracts until the filing and approval of an adequate bond to the plaintiff, securing the payment to it of compensation, and until the defendant should take such precautions, in regard to the erection and construction of its pipe line, as might be prescribed by the court; for a decree declaring what method of construction should be followed by the defendant with reference to safety and a due regard to the rights of the plaintiff; and for general relief. The Westmoreland Coal Company also filed a bill against the same defendant, averring ownership in the plaintiff to the coal underlying certain other tracts of land in said county, with mining rights therein substantially identical with those specified in the bill of the Penn Gas Coal Company, and making substantially the same charges against the defendant and the same prayers for relief. Upon the allegations contained in their bills the plaintiffs moved the court for preliminary injunctions. The motions in the two cases were heard together. Upon the hearing, the plaintiffs presented a number of affidavits tending to prove that the allegations of their bills were true; that the line which the defendant proposed to lay would in some places pass' over workings in the mines of the plaintiffs, and in other places would pass over or through the crop line of the plaintiffs’ coals; that large portions of it, to be laid over coal yet unworked, would not be far enough above the level of the coal to avoid danger to the mines in case of a subsidence of the surface ; that in at least one instance an accident had occurred in a mine by the explosion of gas escaping from a pipe line laid below the surface of the land, and that to make this line safe it should be laid upon the surface. The plaintiffs put in evidence also, an exemplification of certain proceedings in the Court of Common Pleas No. 1 of Allegheny county, wherein the owners of a mine in that county, on complaint of the mine inspectors, were restrained from operating it until certain changes were made in a pipe line laid thereon by the Chartiers Valley Gas Company. The defendant company presented at the hearing specifications which set forth minutely the manner in which it proposed to lay the portions of its line passing over the coal properties of the plaintiffs, and the precautions it proposed to take to guard against accidents. An extract therefrom was appended to and made a part of the decree of the court below, infra. The defendant further presented affidavits tending to prove that its line, as it was designed to be laid, would be reasonably safe and free from danger. The court, Htjntek, P. J., after argument, filed the following opinion and decree: These cases came on to bo heard while we had on hand a heavy criminal calendar, and we have not had time to give the questions raised that thorough research that their importance demands, nor have we time now to hand down or prepare an exhaustive opinion, while the nature of the case and the direction of the act of 1885 requires that “ a decree be made with all convenient speed and promptness.” The facts all appear of record, and we need not, therefore, now repeat them. If the surface land be servient to the coal land, it is only because of a contract by which the latter procured its mining rights, and are relieved from damages to the surface in mining and taking away the coal. In the absence of such contract, the owners of the coal would be answerable to the owners of the surface for any injury thereto or trespass committed thereon in taking out the coal, and thus the coal land would be, in a sense, servient to the surface land. It is not a casepwhere, owing to the natural location of the premises, the common and ordinary use and occupation of the one, necessarily makes another tenement servient. The defendant company is clothed with the right of eminent domain by virtue of its charter and the law that gave it birth, and has the right to enter and lay its pipes on the lands of others, subject, however, to the provisions of § 8, article XVI., of the constitution, and must make compensation for property “ taken, injured, or destroyed ” in the construction of its works. These words have received a judicial construction by our Supreme Court in the case of Penna. R. Co. v. Marchant, 119 Pa. 541. Let me quote from the syllabus: “ The remedy provided by said constitutional provision, to secure just compensation by corporations for property injured or destroyed, has relation to injuries which, though popularly termed consequential, are yet to be understood as confined to such injuries to one’s property as are actual, positive, and visible, the natural and necessary results of the original construction or enlargement of its works by a corporation, and, of such certain character, that compensation therefor may be ascertained at the time the works are being constructed or enlarged, and paid or secured, as provided in the constitution, in advance.” The opinion in this case is exceedingly exhaustive, but fully bears out the syllabus we have quoted. Now then, taking these bills and ex parte affidavits, it is impossible for us to say what, if any, the damage might be to the plaintiff’s coal mines, or that they are actual, positive, and visible, and the necessary results of the original construction of the defendant’s works. Nor do I think that the cases shown by the exemplification of the records of the courts of Allegheny county would establish this fact; nor do they establish the rights of these plaintiffs under the constitution as contended for. The coal companies there were restrained at the instances of the mine inspector from taking out the coal and endangering the mines from breaking of pipes and leakage of the gas, until the gas pipes were constructed in a different or sufficient manner, but of this further on. While the bills in both cases here are precisely similar, yet they both aver an easement in the surface, namely, the right to enter thereon in' the exercise of their mining rights, privileges to make drains with air holes, etc., and this averment is not denied. So then, while we cannot hold that the defendant company is compelled to give a bond for going over the surface which does not belong to the plaintiffs, we have power to direct how or in what manner the pipes are to be laid over land in which there is an easement, under the twelfth section of the act of May 20, 1885, where anj*- dispute arises; and that there is a dispute here, these bills and affidavits and the contention of he parties as to their respective rights clearly aver. And this question is independent of any constitutional provision, because it is in defendant company’s charter privileges and obligations. And here we may remark that this statute would seem to be precautionary only, and, although it does give the court restraining power, yet we think that the well-known principle of equity, that only in clear cases an injunction will be granted, does not for the reason given apply; at least, we shall give the statute a more liberal construction and determine the question from the weight of the proofs offered at the hearing. Turning to the Chartiers Valley Gas Company cases, where there was a restraining order against the coal companies, as shown by the records brought here from Allegheny county, we are not informed as to whether the pipes had been laid as they are here about to be laid, if the specifications are followed. It is true that the pipes there were afterwards laid above the surface, but is this the only safe way ? At the hearing in these cases, the defendant company offered its specifications, and the fair presumption is that the intention is to have the pipes laid in the manner specified therein; and the weight of the proofs offered at the hearing convinces us that if the pipes be laid in the manner as specified on page 3 of the specifications, under the caption of “ Cinder and Coal,” there will be no danger. We find the words “through coal,” quoted, to apply here to cases like the ones before us. These specifications we now direct to be filed with this opinion. And now, November 25, 1889, upon due consideration thereof, it is ordered, adjudged, and decreed, that the Versailles Fuel Gas Company, the defendant in the afore-named bills in equity, shall lay its gas pipes over the plaintiff companies’ coal land, and such surface land as they, or either of them, may own, in the manner prescribed in the Versailles Fuel Gas Company’s specifications on page 3, under the caption of “ Cinder and Coal,” hereunto attached and ordered to be filed; and it is further ordered, adjudged, and decreed that the Versailles Fuel Gas Company, the defendant, its officers, agents, servants, and employees be and they are hereby enjoined from laying their pipes over the premises of the respective plaintiffs aforesaid in any other way.3 —Extract from specifications : “ CINDER AND COAL.” “ Where the ditch runs through cinder or coal, the ditch shall be dug twelve inches extra depth and twenty-three inches extra width. Clay shall be tamped in at the bottom of the ditch for twelve inches, and, after the pipe is laid and tested, clay shall be tamped twelve inches wide on each side of the pipe, and on top of the pipe to the surface of the ground. Where the ditch passes through coal, or close to houses, and at such other places as the engineer may direct, in addition to the clay a broken-stone escape system, consisting of six inches of broken stone on top of the pipes, a layer of tar paper, and escape posts every one hundred feet shall be put in.” Thereupon the plaintiffs took these appeals, assigning for error: 2. The refusal of the plaintiffs’ motions for preliminary in-. junctions. 3. The decree of November 25, 1889.3
131 Pa. 535Hartupee v. City of Pittsburgh (1890)
APPEAL BY PLAINTIEE FROM THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY, IN EQUITY. No. 213 October Term 1889, Sup. Ct.; court below, No. 753 December Term 1887, C. P. No. 1, in Equity. On November 23, 1887, Andrew Ilartupee filed a bill in equity against the city of Pittsburgh and Joseph L. Lowry, averring in substance : That on August 22, 1872, the plaintiff entered into a contract with said city for the construction by him of two pumping engines for the city water works, for the price of $423,550, and on September 4, 1873, entered into a similar contract to construct two other engines for the price of $375,000; that under said contracts the city was to furnish the plaintiff with the requisite plans, specifications and detail drawings, and was to provide the foundations for the engines; that the plaintiff was to have the first pair of engines completed, ready for service, on or before November 15, 1873, and the second pair, on or before November 15, 1874; that the plaintiff diligently prosecuted the work of constructing said engines, and constructed them in compliance with the requirements of the contracts, but was delayed in their completion until February 7, 1879, through the .fault of the city in not furnishing the plans, specifications and drawings, and in not providing’ the foundations, at the times when they should have been provided under the contracts; that on February 7, 1879, the four engines being substantially completed, the city took forcible possession of them, and has since used, them, and they have been and are performing the work for which they were designed; that the city is indebted to the plaintiff upon said contracts for an unpaid balance of $305,370.16, with interest from February 7, 1879; that any disputes which might arise under said contracts, or touching the quantity, quality or value of any work done thereunder, were by the terms of the contracts to be referred to the mechanical engineer of the city, whose decision should be final and conclusive; that the city fraudulently and by collusion with Joseph L. Lowry, its mechanical engineer, procured from said Lowry an award finding that there was nothing due from the city to the plaintiff, but that, on the contrary, the plaintiff was indebted to the city in sums aggregating $317,500, for damages occasioned to it by delay in the completion of the engines and by the use of defective materials in their construction, said award being contrary to the facts as they were well known to the said city and the said Lowry, and contrary to the justice of the case ; that said award bankrupted the plaintiff, and he was without adequate remedy at law. The prayers for relief were that said award be set aside and annulled as fraudulent and void; that the city he decreed to pay to'the plaintiff the sum of $305,370.16, with interest from February 7, 1879 ; and for general relief.* The defendants having demurred to the bill, the court, Stowe, P. J., after argument, filed therein the following opinion and decree: The bill, iu this ease, very distinctly charges the city of Pittsburgh and Joseph L. Lowry with a fraudulent combination and conspiracy to cheat bim out of bis just dues, through the agreement contained in the contracts between tbe plaintiff and tbe city, that all questions or disputes between tbe parties under tbe contracts should be referred to said Lowry, the mechanical engineer of the city, whose decision was to be final and conclusive, under which, acting as such arbitrator, he was induced by the city, and persons in its employ and acting for it in this behalf, to knowingly make a false and fraudulent award in favor of the city and against him, in opposition to facts well known to said parties, and contrary to justice and good faith and to his great injury and loss. —After referring to certain averments of the bill, the opinion proceeded: If these facts are- true, as for the present purpose we must suppose, it is clear that the plaintiff has sustained great and manifest wrong, which should be righted. Tbe only question then is, has equity jurisdiction; or must plaintiff prosecute bis claim at law. It seems to be settled law in England and several of tbe United States, that a defendant in an action on tbe arbitration bond for non-performance of award, or on tbe award itself, cannot at common law plead misconduct, fraud or collusion, on tbe part of tbe arbitrator, and that the remedy is only by hill in equity, seeking to have the award declared null and void, or to have the future prosecution of the suit enjoined: Morse on Arb. and Award, 542-3. In Sperrow v. Wood, 5 Halst. 7, Ewing, C. J., cites with approbation Sergeant Williams’ note to Yeale v. Harmer, in which he says : “ Hence it seems to follow that, to an action on an award the defendant cannot plead collusion or other misconduct of the arbitrator in avoiding the award.” In Barlow v. Todd, 3 Johns. *368, Spencer, J., says : “ It is now well established that, at law, nothing dehors the award, invalidating it, can be pleaded or given in evidence to the jury. Chitty says: ‘ Partiality or improper conduct in the arbitrator cannot be pleaded at bar to an action on the bond conditioned for performance of an award: ’ 2 Chitty 477.” But, while this seems to be the case elsewhere, I am of the opinion that in this state such a rule would not be enforced, and that a plea of fraud and collusion between the arbitrator'and one of the parties, would be good in an action upon the awarcj to recover an amount claimed to be due under it. Such seems to be intimated by Mercur, C. J., in Hostetter v. Pittsburgh, 107 Pa. 435, where he says: “ The award, like a judgment, may undoubtedly be impeached for fraud, which avoids all judicial acts. Partiality and some improper conduct of the arbitrator in making the award will not impeach it, unless the party benefited thereby be implicated in that misconduct.” While, then, we think that the matters set up in this bill could be given in evidence upon an action by the city against Hartupee, to recover the amount found due by him, yet so long as the city might choose not to' sue Hartupee, he could not make any defence, however much he might have been wronged and defrauded; and as to maintaining an action for what might be properly coming to him, he must sue on the contract and show as a part of Iris case the very award that he claims to be fraudulent. It seems that there is no difficulty in holding that, whatever may be the case, where an action is brought to enforce an award, so far as being allowed to set up an equitable defence is concerned, that equitable foundation should still be maintained where the purpose is to recover against a fraudulent award. To do complete justice, the only course is to sweep the award away. And here we find no difficulty as to authority. Courts of equity have always exercised jurisdiction over awards, and the only mode of attaining relief against an award obtained fraudulently, is by bill in equity: See Kerr on Injunctions ; Kyd on Award. The only relief is in equity: Sisk v. Grey, 27 Md. 401. Brows, C. J., says: “But courts of equity will, in all such cases (fraudulent awards), grant relief, and upon due proof will set aside the award.” In Sperrow v. Wood, supra, G. J. Ewing says: “In the chancery books there is a multitude of cases in which awards have been relieved from on the ground of partiality, corruption and misconduct of arbitrators.” In Newland v. Douglass, 2 Johns. 62, the court says: “ A court of chancery may relieve from the partiality and corruption of arbitrators.” See Underhill v. Van Cortland, 2 Johns. Ch. 367. We find, then, that equity lias well established jurisdiction in cases such as that set out in the bill, and being of opinion that the plaintiff has no adequate and complete remedy at law under the facts stated therein, we overrule the defendants’ demurrer and now order that they plead or answer or demur specially to plaintiff’s bill, within twenty days hereafter. The defendants thereupon answered, denying all the material averments of the bill; and afterward, issue having been joined, the court, Stowe, P. J., by agreement of counsel made the following order: And now, December 26,1888, the court having, on the joint application of the plaintiff and defendants, consented to sit as master and examiner in this case and hear the testimony of both sides, and the preliminary question involved, now defines said preliminary question to which the testimony shall be confined, as follows: Whether the award of Joseph L. Lowry, mechanical engineer, specified in the bill, and in favor of the city of Pittsburgh, was induced in the manner as charged in the bill, by fraud and collusion between the said Joseph L. Lowry and the city of Pittsburgh, its agents or representatives. At the hearing before Stowe, P. J., held in pursuance of the above order on December 31, 1888, the plaintiff, after putting in evidence the contracts referred to in the bill, made the following offer: Counsel for plaintiff proposes to prove that the work was constructed substantially according to the contract; that the engines were taken and used by tbe city and have done the work for a period of almost ten years; that the delay in their erection was occasioned by the city and by the engineer and arbitrator, in not furnishing the foundations and detail drawings according to the contract; that the arbitrator knew this, and contributed to the delay himself by not furnishing drawings ; that he, in making up his award, charged $100 a day for delay, when he admits in writing that the foundations were not completed for nearly a year after the time he charged the plaintiff $100 a day; that he notified the plaintiff at a particular time in 1875, that the foundations were ready, and when he made up his award, charged the plaintiff $100 a day for a long period of time previous to that date, and' from that on it becomes a question of dispute as to who caused the delay, there being prior to that time no question or dispute about it; that the engineer and arbitrator condemned as worthless and defective a lot of work and material amounting to $900,000, which in July, 1878, he admitted was according to the contract, and that about one per cent of the entire cost, or eight or nine thousand dollars, would complete the work. Objected to, as incompetent and irrelevant. By the court: Objection sustained; exception.1 The plaintiff then called Mr. Thomas S. Bigelow, who testified that he was city solicitor of the city of Pittsburgh for nine years ending in January 1882; that during his official term hearings were had before Lowry as arbitrator in the controversy between Hartupee and the city, and the witness, as city solicitor, had general charge of the case and appeared before the arbitrator on behalf of the city; that shortly after the retirement of the witness from said office, he visited City Hall on other business, and happened to meet Lowry on 'the outside of his room in which a hearing was being held; and that after some conversation he asked him what would probably be the result of the case, whether he would find for the city or for Hartupee, to which Lowry replied that he would likely find for Hartupee in’a sum approaching $50,000, as, taking the reserve estimate that was to be deducted and the cost of the broken material already taken out, and estimating the cost of the work in the future, it would leave a balance. The witness, denied that Lowry stated in that interview that he had already made up his award in favor of Hartupee for $50,000, and that he, the witness, insisted on Lowry’s not delivering the award, but making an award in another form. The witness denied also that he had ever stated to any person that such an award in favor of Hartupee had been made out, but was changed to an award the other way, in consequence of the remonstrance of the witness and other persons with the arbitrator, or that there was a pool or moneyed arrangement connected with the prosecution of the city’s claim. At the close of Mr. Bigelow’s testimony, the plaintiff made the following offer: Counsel for plaintiff proposes to prove by Andrew Hartupee and others, and by papers, and documents and letters, that the plaintiff substantially complied with the contracts, already in evidence, by constructing the two pairs of engines in the manner and of the strength of iron required by the contracts, and did the work according to the contracts in all respects; that the engines have been in use, doing the work for which they were constructed, for a period of over ten years, and are now in good condition and performing their work with little if any repairs ; that the award in this case, made by Joseph L. Lowry, was made up, first, by charging Mr. Hartupee for the first pair of engines with the delay of five years and four months at $100 per day, and on the second pair of engines four years and two months at $100 per day, making an aggregate of damages for the delay of $846,750; that with these damages for delay Mr. Lowry extinguished the balance due Mr. Hartupee of $805,370.16 ; that he extinguished it or set it off by that damage ; that at the time the arbitrator did this, reached this conclusion, it was a fact and he knew it, that the delays had been occasioned by not completing the foundations for the engines until sometime in 1878, when the foundations should have been completed for the first pair on July 1,1878, and for the second pair July 1, 1874; that another reason for the delay of Mr. Hartupee, and known to Mr. Lowry was, that he had failed to furnish the detail drawings for the work as he was required to do under the contracts, and that the detail drawings were not all furnished until May 4, 1878, and that the plaintiff was delayed up to May 4, 1878, by Lowry, the arbitrator and mechanical engineer, himself, in not furnishing the detail drawings, and that the drawings were furnished from time to time and at different times from the date of the contract up to May 4, 1878, and that that and the foundations not being constructed by the city was the only cause of the delay, and that Mr. Hartupee was not in fault, and the arbitrator knew this ; that the arbitrator all this time was in the employ of the city at a salary of |4,000 per year; that the arbitrator further found that the material and work in the two pairs of engines was not according to the contracts and condemned them as worthless, when he knew as a mechanical engineer that the contract was complied with, that the material was of the -workmanship and tensile strength required by the contracts; that during the progress of the work, and before the year 1878, difficulties arose between Mr. Hartupee and Lowry, the engineer and arbitrator, and that Lowry became without .cause unfriendly and hostile to Mr. Hartupee, so much so that they did not speak, and would communicate by letter in the place of verbal communications. This is offered for the purpose of showing a state of facts and circumstances from which the court should infer dishonesty and fraud on the part of the arbitrator, and set this award aside. Objected to, as incompetent and irrelevant and not tending to show any fraud and collusion between the city of Pittsburgh and the arbitrator, which influenced the award. By the court: Objection sustained; exception.® The plaintiff then rested. After argument, the court, without opinion filed, entered the following decree: Under the agreement of counsel for the several parties in interest, hereto attached, this cause came on to be heard before the court without the intervention of a master, and thereupon evidence was taken and several rulings made, as appear in the reporter’s notes thereof, herewith returned and filed in court. And now, February 16, 1889, upon due consideration thereof, it appears to the court that there is no evidence sustaining the allegation of plaintiff’s bill, that the “award of Joseph L. Lowry, mechanical engineer, was induced in the manner as charged therein, by fraud and collusion between said Lowry and the said city of Pittsburgh, its agents or representatives.” And it is further found as a fact, that no such fraud or collu- ■ sion did exist between said parties as alleged, and therefore it is now ordered, adjudged and decreed that said plaintiff’s bill be dismissed, at the costs of the plaintiff. Thereupon the plaintiff took this appeal, specifying that the court erred: 1, 2. In refusing the plaintiff’s offers.1 8 3. In dismissing the bill and refusing to receive the evidence offered by the plaintiff.
131 Pa. 546Walker v. Keystone Brewing Co. (1889)
131 Pa. 549McGrath v. Donnelly (1889)
131 Pa. 552Neely v. Neely (1889)
131 Pa. 554Wood v. Malone (1890)
APPEAL BY DEPENDANTS PROM THE COURT OP COMMON PLEAS NO. 4 OP PHILADELPHIA COUNTY. No. 353 January Term 1888, Sup. Ct.; court below, No. 691 January Term 1886, C. P. No. 4. On September 19, 1886, an amicable action between Richard Wood and others, partners trading as R. D. Wood & Co., plaintiffs, and R. J. Malone and R. B. Malone, partners trading as R. J. Malone & Brother, defendants, was entered in the court below, the plaintiffs declaring in assumpsit for goods sold and delivered, and the defendants pleading non-assumpsit, set-off, payment with leave, etc. By agreement of the parties the cause was referred to Mr. Francis Rawle as referee under the act of June 16, 1836, P. L. 717. On December 14, 1886, the referee reported, awarding to the plaintiffs the sum of f6,423.57. Afterwards, upon exceptions filed, the court set aside the reP'ort of the referee, and ordered that the cause be proceeded With according to the usual course prescribed by law. At the trial on November 1, 1887, the following facts were shown: The defendants were the contractors for the construction of a section of what is known as the intercepting sewer, running along the canal on the east bank of the Schuylkill river at Manayunk, in the city of Philadelphia, which was being built for the city and under the supervision of its engineer. The sewer was to be made of iron pipe, forty-two inches in diameter, cast in accordance with specifications furnished by the city engineer. On October 20, 1885, the plaintiffs, in pursuance of a request that they should make a bid for furnishing the pipe required for the sewer, sent the following letter to R. A. Malone, the father of the defendants and their agent: “ Dear Sir:— We will make you the 42 in. and 12 in. pipe for the intercepting sewer work and deliver same free on board Pennsylvania Railroad cars at Manayunk for $8,800, or free on board boat on canal at Manayunk at $8,950, in the .event of navigation being open at time of shipment. The amount of pipe is as follows,' . . . .” A few days after the date of this letter, Mr. Murphy, the agent of the plaintiffs, met R. A. Malone and R. B. Malone in Philadelphia, and after some conversation a contract was there closed by which the plaintiffs should furnish the pipe to the defendants. The testimony for the defendants tended to prove that the contract bound the plaintiffs to ship the sections of pipe by the Schuylkill canal, and deliver them on the ground at Manayunk before the close of navigation for the current season. The testimony for the plaintiffs, on the other hand, tended to show that they did not make an absolute engagement to deliver by water, but that their undertaking respecting delivery was simply to push the work of manufacturing the pipe as rapidly as possible, and, if navigation remained open when it was completed, to deliver it by canal; and that they declined to guarantee that any of the pipe would be delivered by water, for the reason that navigation sometimes closed upon the canal as early as the first of November. Some time between November 7, and November 10, 1885, R. A. Malone was at the office of the plaintiffs and there had an interview with Walter Wood, a member of the plaintiff firm, upon the subject of the time at which the plaintiffs could commence making deliveries. In consequence of this interview the plaintiffs on November 12, 1885, wrote to the defendants as follows: “Gentlemen: We have carefully .gone over our arrangements for making your 42 in. pipe, and will put them in work next week, and by Monday the 23d inst., will be making 4 per day, and will continue at that rate until the job is complete, which will give you 120 by Christmas. As fast as we have a lighter-load made, they will be forwarded, so that you will receive the first lot about the first of next month, and the rest regularly thereafter.” The first delivery, however, did not take place until December 23,1885, when twenty pieces of pipe were sent by canal. About two days after that, the canal closed for the winter. On December 31st, having received from the city engineer specifications covering a larger number of pieces than the defendants had ordered, the plaintiffs wrote to the defendants the following letter: “ Gentlemen: We have received to-day from Mr. J. Milton Titlow, a schedule of requirements for the intercepting sewer, representing full amount of work to be done this winter, which is as follows:..... “ Please certify to the correctness of this increase of order, and also instruct us about future shipments of 42 in. pipe, and whether we can ship you another boat-load, or whether all will have to go by rail.” The defendants’ response to this communication was written and signed on the same paper, below the letter, and was in these words: “We certify that the above order is correct, and desire the remainder of the pipe shipped by the Reading railroad to their freight yards at E. Manayunk, as the water is drawn from the canal.” This direction to ship by rail was written by R. J. Malone, the senior member of the defendant firm, who testified that at the time of writing it he had not been informed that the contract, as finally agreed upon between his father and brother and the plaintiffs, required the latter to deliver by water, and did not know that they had broken their contract; and that the only thing he then knew about the terms of contract was derived from seeing the alternative proposition contained in the plaintiffs’ letter of November 12, 1885; that during the construction of the sewer, which he personally superintended, the witness was not informed at any time by his father and brother, that the-contract with the plaintiffs was for delivery by water alone, and he first learned this about the beginning of May, 1886; that his interpretation of the letter of December 31st., at the time of receiving it, was that the plaintiffs desired to know whether the pipe should be shipped by the Reading or bjr the Pennsylvania railroad. The plaintiffs shipped the remainder of the pipe by the Reading railroad as directed. After the deliveries had been completed, several letters passed between the parties with relation to the balance due for the pipe. On May 12, 1886, in reply to a letter from the plaintiffs to defendants dated May 3, 1886, asking prompt payment of said balance, the defendants wrote as follows : “ Gentlemen : In reply to yours of the 3rd inst., we submit the' enclosed bill representing the cost of hauling and handling 100 42 in. pipe, owing to your failure to deliver them by water as per agreement. In a letter received from you dated November 12, 1885, you state that you have ‘carefully gone over our arrangements for making your 42 in. pipe and will put them in work by next week, and by Monday the 23rd inst. will be making 4 per day and will continue at that rate until the job is completed, which will give you 120 pieces by Christmas,’ etc. Navigation was open up to that time ; there was nothing to prevent the fulfilment of the agreement, and yet but 25 were ready for delivery. This letter was written in response to father’s urgent demand that some fixed date be specified for the delivery of the pipe by water, and after he had explained in detail the difficulty, almost impossibility, of handling the pipe delivered by rail. He informed you of his intention to order the pipe elsewhere and would have done so had he not relied upon the terms of the above quoted letter. The cost and trouble to us through your failure to comply with its terms were much greater than shown in our bill. There were 4 pipe broken in course of delivery, not handling, which were valueless to us. We are also experiencing a great deal of difficulty in obtaining our money from the city, owing to the fact that 4 of the pipe in position have broken. Two of these we replaced at our own cost, but refused to go further, as we had already exceeded the requirements of our contract. Please notify us whether the inclosed bill will be deducted from the amount we owe you.” This letter of May 12,1886, was the first notice or suggestion to the plaintiffs, as was alleged, that they had failed to keep their contract. Upon the trial the defendants showed that the cost to them of handling the pipe was very considerably increased by their delivery at the railroad station, over what it would have been had they been delivered on the canal, and claimed to recoup the additional expense thus incurred from the plaintiffs’ demand. In order to explain why the deliveries of pipe were delayed until after the close of navigation on the canal, when shipment by water was impossible, Walter Wood, one of the plaintiffs, was asked, while testifying on their behalf, to state what prevented the realization of the expectations expressed in the letter of November 12, 1885, as to the time when the plaintiffs would be able to deliver. Objected to by the defendants. By the court: Objection overruled; exception.1 This witness and John Graham, the plaintiffs’ superintendent, then testified that it was found impossible to make the pipe in accordance with the engineer’s specifications, as they would invariably crack in cooling, the proportionate thickness of the body and the heads being such that the former would cool so much more rapidly than the latter as to produce a strain the pipe could not stand; that it required some time and experiments to demonstrate just what the trouble was, and then it became necessary to demonstrate it to the city authorities and obtain their permission to change the specifications, and this permission was not given until about the middle of December; that the delay thus occasioned, when added to the time which before that had necessarily been consumed in preparing the fixtures required by the plaintiffs for the manufacture of this unusual size of pipe, rendered it impossible for the plaintiffs, using diligence to perform their contract, as they did, to make deliveries any earlier than the dates at which they did deliver. There was testimony, also, that some delay was occasioned by a dispute between the canal company and the city as to the right of way for the sewer, and an interference by the former with the unloading of the first shipment of pipes along the canal. At the conclusion of the testimony the court, Willson, J., charged the jury in part as follows : The contract in this case is the point about which the controversy principally turns. What was the contract ? This is the first question for you to take up, and is the first question for you to settle. You have nothing to do with any question of damages, until you have settled this question as to what the contract was. If you shall, upon an honest consideration of the testimony come to the conclusion that the contract was what the plaintiffs claim it to be, that it was a contract which bound them to deliver by water as long as it was practicable, as long as navigation was open, and that then they had the right to deliver by rail, and that they discharged their duty under such a contract, then that is an end of the case and your verdict should be for the plaintiffs for the full amount of their claim. [If on the other hand their contract was to deliver by water and water only, and then by their own fault, not by reason of something which they could not control, something which was impossible in its nature, failed to deliver in that way, and thereby the defendants suffered loss, then the defendants would have a right of set-off against the plaintiffs’ claim,] a for the amount of such loss which they suffered, for that loss or that damage which was naturally to be anticipated under the circumstances. The contract was not in writing. There was a letter written on October 20, 1885, by the plaintiffs to the defendants, in which they made a certain proposition. That letter, I say, does not contain the contract. It may possibly have some bearing upon the question as to what the contract was, taken in connection with the oral testimony. That was a\proposition .on their part to furnish certain pipe, either delivered by rail or delivered by water as long as navigation was open, then after-wards by rail. It appears therefore that that thought or question of the possibility of water delivery was in the minds of the parties at the very inception of this transaction; and I mayday, here, that there is no question but that it was considered fiipm the outset between the parties as a matter of advantage to the defendants that the delivery should be by water. There is no question but what it would have been a practical advantage for them. There is no question whatever but that this was knowfi to the parties at the time they were bargaining with each other. The plaintiffs made their proposition on the 20th of October:. That was answered at once or after a few days, I don’t remember that the number of days was fixed in the testimony, when, as the witness Murphy says (I am not giving the very words but endeavoring to give the substance of the testimony), he met them and had a conversation with them. They said that they wanted the delivery by water. Then Mr. Murphy testified that he said to them, we cannot agree to deliver by water; we cannot bind ourselves to deliver by water, because sometimes the river Schuylkill is closed by ice very early, — I think he put it as early as the first of November, — and we have got to make our preparations to cast these pipes; therefore we cannot safely or with propriety enter into a bargain of that kind; we will deliver by water just as long as navigation is open and afterwards by rail. The plaintiffs say that is what their contract was. On the other hand the defendants say, Mr. K. A. Malone, the father, and one of the sons, who was present at the Girard House, if I remember correctly, at the time of the conversation, they say that there was a distinct agreement that the pipes were to be delivered by water, and that the bargain was made upon no other terms than those. Now, gentlemen, that is a question you have got to settle and it is the first question to be taken up and decided..... It is claimed on the part of the plaintiffs that a letter which was written by the defendants, or one of them, in the firm name, on December 81st, instructing the plaintiffs to deliver after that date, by rail, is an entire waiver of any claim, or a waiver of any delivery in any other way than that designated in the note. I cannot so instruct you, gentlemen, as a matter of law. I do not so regard the effect of that writing. Of course, if any convenience of the defendants at the place where they were working at the time, or any reason arising from their desire to prosecute that work in a particular way, had moved them to request that delivery at any other point than that originally designated in the contract, as they stated it to be, why that would have been a waiver and would have released the plaintiffs from their obligation to deliver it at another point. If that was the nature of the notice, the plaintiffs would have been right in their contention as to the effect of the note. But I do not regard it of that sort. Navigation had, in point of fact, closed at or about that time, or within a few hours at any rate. The note of instruction itself stated that the reason why it was given was because navigation was closed..... Now something has been said in regard to the delays which took place in the making and delivery of this pipe. The plaintiffs, under their own version of the contract, were undoubtedly bound, not oidy to deliver by water, so long as nav7 igation should remain open, but to make reasonable speed with the deliveries. They were aware of the fact that the defendants had a contract with the city and of the fact that prompt deliveries of the pipe were needed; and Mr. Murphy said that they bound themselves to get to work, and to work promptly and industriously for the purpose of delivering them. If there was any needless, unnecessary or unreasonable delay on their part, whereby they were prevented from delivering these pipes by water, during the season before navigation closed, then they were guilty undoubtedly of a breach of the contract, for which the defendants could hold them responsible, to the extent that they suffered loss in consequence. These parties seem to have understood, and from the evidence found, about which there is no dispute, it seems to have been necessary for the plaintiffs to get in readiness to make this pipe, because the pipe was of a special size. They had to make their preparations to construct them, to get their patterns ready, and do everything necessary in order that the pipe might be made. Now they say they went to work with reasonable speed. That is what they claim. They say that they did cast the pipe, according to the model or specifications given to them by the city official, and cast about fifty of them, when they found, as Mr. Graham said substantially, that it was practically impossible to make them acccording to the model, that the head was too large for the body of the pipe, which in cooling would cool more quickly than the thicker heads, thereby making cracks, so that the pipes would not be serviceable, and that, therefore, they had to have new specifications. They also say that there was another ground of delay, arising from difficulties which occurred at the place where the pipe was laid, difficulties which, as described by one of the witnesses, occasioned the calling in of policemen to prevent interference of the prosecution of the work. They claim that delayed them some time. [Of course if the delay was owing to circumstances beyond their control, which arose out of the nature of the case, by the pipes as originally provided for by the city officers being such that they could not construct, or that it was impossible for them to construct, and if there were other delays, such as have been referred to, arising in the prosecution of the work, so that the defendants were not ready to receive the pipes, then to that extent the plaintiffs would be excused for non-delivery of the pipes, just as long as those causes operated.] 3 They were undoubtedly bound to use reasonable and proper diligence to overcome those obstacles; and it is only in case they did so that they can be regarded as observing the contract which Mr. Murphy said he entered into with the defendants. [If those obstacles prevented them, to that extent they must have a margin of time allowed; and if, by reason of those obstacles they were prevented from delivering the pipes while navigation was open, then they would be relieved from liability on that score, even though their contract was that they were to deliver by water, and even though the defendants suffered a considerable loss by reason of the pipes not being delivered by water.] 4 I have said if you find that the contract was that the delivery should be by water only, so long as navigation should bo open, and that the plaintiffs observed this contract, you have nothing whatever to do with the question of damages which the defendants suffered, because in that case the plaintiffs would not be responsible for them, and your verdict should be for the plaintiffs. On the other hand if you are of the opinion that the contract was that the plaintiffs should deliver by water and water only, that that was their contract, and that they were not excused by any such unavoidable circumstances as I have referred to, then you will have to consider what the defendants are entitled to set off against their claim..... This subject of damages, as I have already said to you, does not arise unless you are of the opinion that the plaintiffs bound themselves to deliver by water and water only, or were not excused by such circumstances, as I have referred to, from delivery in that way. If you shall think that they were bound to deliver by water and water only, or were not excused in that manner, for any delay, then the defendants will be entitled to set off against the plaintiffs’ claim whatever you shall think, upon consideration of all the testimony in the case, the expenses amounted to, which properly falls upon that portion of the contract which the plaintiffs entered into, upon the theory that they were bound to deliver by water navigation, before the end of the season. The jury rendered a verdict in favor of the plaintiffs for $6,740.87. A rule for a new trial having been discharged, and judgment entered on the verdict, the defendants took this appeal, assigning for error: 1. The admission of the plaintiffs’ offer.1 2-4. The parts of the charge embraced [ ] 8 40 4
131 Pa. 568Sloan v. Baltimore R. (1890)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF DELAWARE COUNTY. No. 129 January Term 1888, Sup. Ct.; court below, number and term not given. On February 7, 1887, the report of a jury of view was filed, awarding 110,987.40, as compensation to be paid by the Baltimore & Philadelphia Railroad Co. for injuries done to property owned by Elizabeth W. Sloan, Sarah A. Sloan and Caroline ^Weaver, in the construction of the company’s railroad. Thereupon the company entered an appeal, which subsequently was put at issue in the form of a statement of claim and plea in trespass, in which the landowners were made plaintiffs, and the railroad company defendant. At the trial on June 21, 1887, it was shown that the plaintiffs were the owners of two lots, one of eight acres, through which the railroad of the defendant company was constructed, and one of sixteen acres, separated from the other by a public road. It was admitted that the value of the sixteen acre lot was not affected by the construction of the railroad, but both parties introduced testimony as to its value, as well as to that of the eight acre lot and of the two together, and as to the manner in which the latter lot was affected. To the admission of this testimony, no exception was taken by either party, nor was there any motion to strike it out. The court, Clayton, P. J., instructed the jury in part as follows: You will, therefore, commence your deliberations by ascertaining from the evidence the market value of the plaintiff’s eight acres of ground, as unaffected by the location and construction of the proposed road, previous to December 4, and on that day, 1884. You may fix the value of this land, from the evidence, at whatever sum you think the land was worth. It is not for the court to intimate what your calculations would be upon the question of value. The entire property, the sixteen and eight — twenty-four acres, according to the evidence, would seem to be worth anywhere from $18,000 to $80,000. I believe the lowest estimate fixes it at about $18,000; the highest, at about $30,000. The consideration paid by these plaintiffs appears to have been $27,000. You may consider all the evidence and find whether it was worth more or less than these two sums on that day, or previous to that day, immediately preceding that day, December 4, 1884..... I may say to you that the question is, what was the eight acres worth on December 4, 1884, and what was it worth after December the 4th, after the road was constructed ? Of course, if you should allow the interest upon the sum, you have in the aggregate, as a rule, what would cover all loss from the want of occupancy of the property; but as bearing upon the $10,000, that may be considered by you. The plaintiffs’ counsel argues that while that may be the present price, yet they have lost the income for two years and six months, and so from that $10,000 you should take the loss of the income for the two years and six months. If you find, therefore, that $10,000 is the value of the eight acres, this will leave $14,000 remaining. Then there is sixteen acres, which it is admitted is not injured by this railroad; that, according to the testimony, was worth from $4,000 to $6,000. Whatever sum you should fix that to be, should be allowed for the defendant. The testimony is, that it was worth from $400 to $600 an acre. Whatever sum you fix that at, you will take that much from your calculation of damages. If you find that to be valued at $500 an acre, then that would he $8,000 for the whole sixteen acres, and deducting that from the $14,000 you have $6,000. If you strike an average from the plaintiffs’ testimony, and take the highest price given by the defendant’s testimony, this will make $6,000 with interest from December 4, 1884. Now, gentlemen, do not understand the court as intimating that you ought to strike this average on the one side, and to take the testimony of Mr. Smith on the other. It will be entirely for you to say, under all the evidence, what the property is worth; and I merely make the above statement of figures as a formula by which you can arrive at a verdict. You may give more, or you may give less; but you should adopt some formula of that kind in arriving at your estimate. [To illustrate: Suppose you take the highest price proved by the plaintiffs, which is $80,000 for the twenty-four acres. That is the highest estimate of the plaintiffs. Now, from this you should deduct the price of the sixteen acres, which may range from $8,000 to $12,000. This would leave $18,000 or $19,000, as the true value of the remaining eight acres. Then if you should take the price of the remaining eight acres, as before stated by Captain Smith, who says he is willing to pay $10,000 for it, and he brings the money into court and tenders it; if you find that that is the value, it will make the damages amount to $8,000 or $9,000, with interest from December 4,1884. Now, suppose you were to take $27,000 as the price for the property. That is the consideration named in the deed. Then, striking off the value of the sixteen acres, $500 an acre, which would be $8,000, that would leave as the value of the eight acres before the railroad came there, $19,000. Deduct from this the present value at $10,000, and you have $9,000 as the damages; that is, if you find that that is its present value. You will still have in that case $9,000 as the damage, if you should take that view of it. This you will add with the interest from December 4th, and it will swell the damage from $10,000 to $10,300; that is, understand me, gentlemen, if you take the $10,000 as the valuation.] 1..... The jury returned a verdict in favor of the plaintiffs for $9,224. Judgment having been entered on the verdict, the defendant took this appeal, specifying that the court erred in the portion of the charge embraced in [ ] 1; and in failing to present the defendant’s testimony, and the formula of calculation according to the evidence of the defendant’s witnesses.
131 Pa. 573Hinkle v. Landis (1890)
APPEAL BY PLAIN TIEN FROM THE COURT OF COMMON PLEAS OP BUCKS COUNTY. No. 406 January Term 1888, Sup. Ct.; court below, No. 8 January Term 1886, C. P. On December 12, 1885, Elias Fellman, administrator of tbe estate of Lavina Fellman, deceased, filed a declaration consisting of the common counts in assumpsit, in an action against Aaron Landis. The defendant pleaded non-assumpsit and payment with leave. Subsequently, the death of Elias Fell-man being suggested, William B. Hinkle, administrator de bonis non of Lavina Fellman, was substituted as plaintiff. At the trial on December 14, 1887, the following facts were shown: Lavina Fellman, deceased, was the wife of Elias Fellinan, the original plaintiff. She had money in her own right, and some years before her death, placed a part of it in the hands of the defendant, who was her brother-in-law. Being called upon the stand by the plaintiff, the defendant testified that $900 of that money was handed to him, or his wife, by Mrs. Fellman in the presence of her husband, she saying that she wanted to have the interest on it as long as she lived and afterward it should be theirs, but told the witness to draw up a note for it; that her husband took no part in the conversation respecting the money, but “ undoubtedly he heard what she said.” The defendant’s wife also testified to substantially the same conversation. Within a few days, the defendant gave his note to Mrs. Fellman for the $900. On April 1,1885, the defendant received back from Mrs. Fellman, without the knowledge of her husband, his $900 note and another note for $280, previously given, substituting therefor his bond in the sum of $2,860, conditioned for the payment of “ the interest at the rate of five per cent per annum upon the principal sum of $1,180, annually, during all the term of the natural life of the said La vina Fellman, on the first day of April of each year; provided, however, that the said principal sum of $1,180 shall never become due and payable.” Mrs. Fellman died intestate on October 6, 1885. No payment of interest on the bond was ever made. At the close of the testimony the court, Yerkes, P. J., charged the jury as follows: This case has been heard by the court. It is admitted on both sides that it is a question of law, which may be considered to be raised by the points which the counsel for the plaintiff have presented in the case, which are as follows: 1. That if the bond of the defendant, Aaron Landis, to Lavina Fellman, the plaintiff’s intestate, was given for the purpose of securing to her the interest of her money, in the hands of Landis, during her life, and with the design of depriving her husband of his right to it after her death, then the transaction constituted a fraud upon the rights of the husband, and the money may be recovered, in the present action, by her administrator. Answer: Refused. In the opinion of the court there cannot be a recovery, upon the facts of this case, of the principal sum of the bond.1 [The jury is directed to render a verdict in favor of the plaintiff for the interest at the rate of five per cent per annum upon the amount of the bond, from the first day of April, 1885, down to October 6,1885, the date of the death of the decedent. The amount is admitted to be $30.48.] 3 2. That the bond in question constituted a testamentary disposition of a part of the estate of the obligee, which is not binding upon her husband. Answer : We give the same answer to this point that we gave in answer to the plaintiff’s first point.8 The jury rendered, a verdict in favor of the plaintiff for $30.48. A rule for a new trial having been taken, after argument thereof the court, Yerkes, P. J., filed the following opinion: The plaintiff takes the position that the disposition which Lavina Fellman, in her lifetime, made of the money in Mr. Landis’s hands was a fraud upon the marital rights of her husband, and that therefore the plaintiff is entitled to recover. The object of our legislation, apparently, has been to place the rights of husband and wife, in the estates of each other, upon an equal footing, and the result of the several acts of assembly seems to be that the wife’s power over her separate estate is as complete as that of the husband over his estate. In Pringle v. Pringle, 59 Pa. 281, Justice Sharswood, speaking of donations inter vivos, said: “ In our law no such gift, otherwise valid, can be impeached as a fraud upon a man’s wife or children. They have no legal right to any part of his goods, and, therefore, no fraud can be predicated of any act of the husband or parent to deprive them of the succession.” In Perry’s App., 7 Cent. R. 164, it appears that F. H. Perry died intestate on April 14, 1885, having in the preceding February or March devested himself of very nearly all his property, by transferring bonds, etc., to his children. The master found that he did this under the impression that life was. short, and having in view the devesting of any distributive share which his widow might have in the articles of personal property mentioned, in case she survived him. It was decided by the master that the gifts were valid, and that the wife could not claim any distributive share under the intestate laws. The case was appealed and reviewed on other grounds, and this decision was complained of by the defendant in error, but the Supreme Court did not appear to consider the subject of complaint worthy of notice in their opinion. A father transferred to himself, as trustee of his children, certain securities which he had purchased from a fund set aside for the purpose, and in his will gave directions for the control of the trusts. Mr. Justice Stbrrbtt said: “ It is scarcely necessary to add that such gifts, made in good faith as these were, cannot be impeached on the ground that they are a fraud upon the rights of the widow. Nothing is better settled than the power of a husband to dispose of his personal property, in good fiith, by gift or otherwise, during coverture, free from all post-mortem claims thereon by his widow: ” Dickerson’s App., 115 Pa. 198. We think the principles of law which controlled these decisions apply to this case. We are unable to see any valid reason why the post-mortem lights of the husband should stand upon a different plane from those of the wife. There was a contractual relation between the parties to the bond, which cannot be overlooked. While it was true the defendant agreed to pay interest, the agreement that the principal sum should never become due and payable was as much a part of the consideration for the interest as was the use of the money. It does not follow that he would have agreed to take the money, or to pay the rate stipulated for the use alone. It not being fraudulent for Mrs. Fellman to dispose of her personal property as she saw proper, and there being no sufficient evidence of other fraud in the case, the contract was valid. And now, to wit, February 27, 1888, the motion is overruled and a new trial refused. Thereupon the plaintiff took this appeal, assigning for error: 1, 2. The answers to plaintiff’s points.1 8 8. The part of the charge embraced in [ ] 3
131 Pa. 584Estate of Merkel (1890)
APPEALS BY E. SUNDAY ET AL., CREDITORS, AND BY W. R. MERKEL ET AL., ACCOUNTANTS, PROM THE ORPHANS’ COURT OP BERKS COUNTY. Nos. 192, 368 January Term 1888, Sup. Ct.; court below, number arid term mot given. On May 11, 1877, Wilson It. Merkel and William M. Kaufman, administrators of the estate of George Merkel, deceased, filed two accounts of their administration of said estate, one relating to the personalty and the other to the realty. Exceptions to the account having been filed by creditors of the estate, Mr. S. Maltzberger, on September 11, 1877, was appointed auditor to pass upon the exceptions and make distrn bution of the money in the hands of the accountants. He reported, on January 22, 1887, the following findings of fact: George Merkel, of Greenwich township, Berks county, Pa., died January 2, 1878. Letters of administration upon his estate were granted to Wilson R. Merkel and William M. Kaufman who, on May 11, 1877, filed two accounts, one in reference to the personal property, the other concerning the real estate of the decedent. Up to the time of his death, which occurred very suddenly, George Merkel was extensively and actively engaged in business, principally in the manufacture of charcoal pig iron. He was the owner of two furnaces, one situated in Greenwich township, the other in Albany township, Berks county, Pa., and at the time of his death the furnace in Greenwich township was in blast. He was the owner of a number of tracts of woodland, of a farm and grist mill, and an iron-ore mine which had been leased to a firm' of which he was for some time a member. . All his property was situated in the county of Berks. He was also a member of the firm of Merkel & Kaufman, who kept a country store near the furnace in Greenwich township. An inventory of his personal estate was taken shortly after his death and filed in the register’s office February 8, 1873, and the appraisement amounted to $92,680.57. Of this amount $80,647.31 was supposed to be good. From the account which was filed as to the real estate, it appears that it sold for $24,920.14. This amount was exclusive of a mortgage of $60,000, covering part of his real estate, and dower resting upon various portions, and the sum of $22,600 retained by the purchaser of the Moselem ore-bank to pay a claim of the firm of Bushong & Brother, subject, however, to an adjudication by the court. The real estate was therefore worth at least the sum of $107,520.14, which, with the personalty-accounted good, made the value of his estate $188,16J .45. By a petition of the admir istrators to the Orphans’ Court of Berks county, presented June 30, 1873, praying for an order to sell certain real estate therein' described for the payment of debts, it appeared that the indebtedness of the decedent which had come to the knowledge of the. administrators amounted to $152,680, and the estate was considered to be entirely insolvent. An agreement was entered into by the heirs of Merkel, his widow and children, with the administrators, that the business of the decedent should be carried on by the administrators for a period of five years. This the administrators undertook to do and they had the property in use from the death of Merkel to April 1, 1875, after which they rented the furnace to W. R. & E. F. Merkel for one year to April 1, 1877. As the business in which the decedent had been engaged appeared to be profitable, and the solvency of the estate apparent, it was thought to be best for all parties in interest, creditors and heirs, that the business should be carried on by the administrators. As has been -said, the heirs consented to this arrangement and several also of the creditors. Unfortunately, however, a period of general business depression began in 1873, and the venture of the administrators did not result in paying the debts and saving the property to the heirs as was contemplated. Some of the debts of decedent were paid in full by the administrators; of others the interest was paid and some were partly paid. The accounts filed by the administrators show an insufficiency of assets to pay the indebtedness of decedent, and exceptions being filed to the accounts by creditors, it is asked that the administrators be surcharged as follows: 1. With the sum of $7,316.87,* being the sum of $9,316.37, the amount of credit asked in the account, for decrease on sale of personal property, less the sum of $2,000, the appraised value of George Merkel’s interest in the firm of Merkel & Kaufman. The administrators continued the business of making pig iron at decedent’s furnace, in Greenwich township, from the time that letters were granted them in 1873, to April 1, 1875, a period of more than two years. At the death of George Merkel the furnace was in blast, and the continuance of the business was under the advice of reputable counsel, of some creditors and persons interested in the estate, and also under the judgment of persons interested in the manufacture of pig-iron as to its advisability, and the agreement of the heirs that it should be done. The furnace being in blast at the death of Merkel, with stock on hand and accumulating under the contracts that had been made by decedent, it would unquestionably have been an injury and a loss to the estate to' have blown out the furnace at that time. Under the testimony, it appears that there was stock enough on hand at Merkel’s death to run the furnace for between two and three months, which would have completed the blast at the usual time of the year. A blast was generally begun in May, and continued for a period of about nine months. The furnace was blown out by the administrators in April or May after Merkel’s death, and it was considered to have been a heavy blast that year. To the time of closing the blast in 1878, the auditor is of the opinion that the administrators were justified in continuing the business of the decedent as he had carried it on, and would probably have been culpable had they done otherwise. If at the close of the blast the personal property had been put up for sale and had brought less than the appraised value thereof, the administrators would properly be entitled to a credit on their account for the deficiency, in case they had charged themselves with the appraisement. But preparations were made for another blast and the furnace was again started, and though it appears but a single blast was made, the administrators only stopped making iron in February, 1876. Then came a sale of personal property in February, 1875, and final sales of personal property, March 11,12 and 13,1875, more than two years after Merkel’s death. During this time the property was in use and was kept in repair. But a deficiency of $7,316.37, or decrease below the appraised value, arose from the sales held. Under the law, as the auditor views it, he is compelled to surcharge the administrators with this amount. The duties of an administrator áre plainly prescribed, and it would need the consent of all the heirs and all the creditors to equitably relieve him or them from pecuniary responsibility, in case of a depreciation in the value of the estate or any part of it used in the carrying on of the business. 2. It is further asked that the administrators should be charged with the sum of $14,175, an amount of interest paid upon the mortgage of $60,000 upon the furnace, homestead-farm, mill and ore-bank at Moselem. Of this amount $45,000 was resting upon the Moselem ore, bank, and the total amount of interest paid by the administrators was $14,175. An order of sale of real estate for the payment of debts was granted by the Orphans’ Court of Berks county, June 80,1873, and the administrators were authorized to sell purpart No. 6, being a tract of land in Richmond township, known as the Moselem ore tract, containing 175¿- acres, and No. 7, a tract of land in Richmond township, containing 26 acres and 95 perches. The sale was held September 13, 1873. Tract No. 6 was returned as unsold for want of buyers, and the return was confirmed September 20, 1878. An alias order for the sale of purpart No. 6 was issued April 3, 1876; the sale was held May 6,1876, and the property was sold to Frederick Leybrandt for $69,000, from which was to be deducted, as per the conditions of sale, $45,000, the amount of the mortgage upon the premises; and $22,600 was to be retained in the hands of the purchasers to pay a claim of Bushong & Bro., subject, however, to a decision of the court, and the balance to be paid to the administrators. An effort therefore had been made to sell the ore-bank, the most valuable of Merkel’s properties, within a year after his death. It is difficult to determine from the testimony the exact amount that was offered for the property at this sale, as one of the witnesses says the amount was $100,000, and the auctioneer himself testifies that it was $95,000. The matter may, however, not be important, in view of the fact that the property was not sold, the administrators announcing that it would not be sold for loss than $125,000. It is certainly the fact, however, that a valid bid of $90,000 was made. In the judgment of the administrators the amount offered was less than what was thought to be the value of the property, and it was returned as unsold in their report to the Orphans’ Court. It was unfortunate for the estate in view of subsequent events, that the property was not stricken off at $90,000, for it decreased in market value thereafter to a very great extent owing to the financial panic which unsettled every industry. The attempted sale of September 13, 1873, was but a few days prior to the suspension of the firm of Jay Cooke & Co., in Philadelphia, and that of Bushong & Bro., bankers of Reading. The financial crisis had a depressing effect upon the iron business and furnace property, and ore property depreciated greatly in value. In fact, Mr. Isaac Eckert, himself, largely engaged in the manufacture of iron, who, between the time of the' attempted sale and the suspension of the firm of Bushong & Bro., had made arrangements to buy the property from the widow and heirs at the sum of $125,000, declined to complete them or have the sale consummated, but advised the continuance of the business of making iron by the administrators. The ore-bank was not afterwards offered for sale until May 6, 1876, when it brought but $69,000, subject to all liens, as aforesaid. It must be remembered, also, that when the bid of $90,000 was made, the lien of the mortgage of $60,000 was upon this property as well as upon another property, and as it was a first lien it could not be divested by the sale, and the conditions of sale made the amount to be paid the difference between the amount bid and the amount of encumbrance. The interest upon the mortgage accrued semi-annually and was paid by the administrators, and they ask to be allowed credit for such payment in’ their account. They received the rents of the property, yet do not charge themselves with the amount thereof in their account. Under the rule in Burnell’s Est., 9 W. N. 834, the credits taken for interest paid must be stricken from the account. Merkel’s administrators paid the interest on the mortgage as it became due out of such funds as they may have had in hand,, and as they are not charged in the account with any rents received or profits resulting from the business, the presumption is that they-were paid from the principal of the estate, and they must be stricken from the account. . ¿ . . 3. It is also asked that the administrators be charged with $6,606.89, the cost of mining ore from the Moselem Iron Co,, from March 1,1874, to January 1,1875. Also with the market value of 1,937 tons, 4£ cwt., of ore from Januaiy 1, 1873, toOctobeil, 1873, amounting to $14,523.33. Also with 160 tons, 4 cwt., at $6.50, $1,067.30; ore from October 1, 1873 to December 1, 1873. Also with 91 tons, 9-if cwt., at $6, $548.85,' ore from December 1,1878, to February 1,1874; the sum total being f16,189.48, of which the administrators paid on account to Bushong & Bro. the sum of $8,000, leaving a balance of $8,189.48, with which amount it is contended they should be surcharged. These claims are made under a state of facts which are set forth in the case of. Wilson R. Merkel and William M. Kaufman, administrators of George Merkel, deceased, plaintiffs in error and plaintiffs below, v. Frederick Leybrandt and Bushong & Bro., in the Supreme Court, Eastern District, March Term 1882, in which the Supreme Court affirmed the judgment of the Court of Common Pleas of Berks county, overruling exceptions to the auditor’s report and confirming his report. The record of said suit was offered in evidence, and the auditor’s report, which sets forth the facts in the case, is hereto appended..... The court, in the decision, recognized the principles laid down by the auditor in stating the accounts, and affirmed the law as stated by him, that the covenants in the lease were dependent, and that the administrators were compelled to take 5,000 tons per year at the cost of mining. Shall the administrators now be charged with the cost of mining and with the market value of the ore furnished them, either because the royalty accruing was diminished to the extent of said cost of mining, (said royalty being applied to the payment of Merkel’s notes to Bushong & Bro.,) or because the value of the estate was diminished to the extent of the value of the ore taken out ? As the administrators were compelled to take the ore at the cost of mining under the dependent covenants of the lease, they cannot fairly be charged with the amount. Nor can they be charged with the market value of the ore, although the estate in their hands was increased to the amount of the ore received by them less the cost of mining. The ore was the product of lands. Rents and profits of real estate are not assets for the payment Of debts, and therefore the administrators cannot be charged with them: McCoy v. Scott, 2 R. 222; Robb’s App., 41 Pa. 45. Clearly, the ore received by the administrators under the terms of the lease, was in the nature of rent, and it belonged to the heirs, and for it the administrators would be accountable to them. The proceeds of this ore, together with the royalty, should have been taken to pay the interest on 'the mortgages and the taxes. The auditor therefore declines to make these surcharges. 4. It is also asked that they be charged with the sum of $9,000, the difference between the amount bid at the first sale of the furnace property and homestead and that realized at the second sale, together with interest thereon. It appears that this property was put up for sale without a formal order of the court having been taken out or granted. The price at which it was struck down was $30,000, and the purchasers were George F. Baer and others. The purchasers refused to complete the purchase or take the property, upon discovering the defect or want of an order of the court, and it was subsequently sold on October 27, 1876, to Spang, Erb & Hunsieker for $21,000. At the time of the first sale the administrators were in the hands and under the direction of a reputable attorney, whose advice in this regard they followed, and it would be an extraordinary hardship to visit them with a loss occurring from a cause over which they could possibly have no control: Neff’s App., 57 Pa. 91; Calhoun’s Est., 6 W. 185; Crist v. Brindle, 2 R. 122; Eyster’s App., 16 Pa. 376; Bradley’s App., 85 Pa. 514; Derbyshire’s Est., 81 Pa. 18; King v. Morrison, 1 P. & W. 188. The auditor declines to charge them as asked for. 5. It is also asked that they be charged with the sum of $26,000, the difference between the amount of actual bid at first sale in 1873, $95,000, and the amount for which the Moselem ore tract was subsequently sold in 1876, to wit, $69,000. The refusal to let the property go at the bid offered in 1873 resulted from a belief on the part of the administrators that the property was worth more and would bring more at a subsequent sale. In fact, a private offer had been made for the property of $125,000, and negotiations were in progress to complete the sale, and a time had been appointed for the execution of the proper papers. But events before spoken of occurred which put an end to all negotiations. The property ■ fell in value, and it has not been shown that between the time of the attempted sale, and that of the actual sale in 1876, the premises were worth more than they brought or that they could have been sold for more. That the administrators were right in not allowing the property to go at $95,000, at the time it was offered, cannot be doubted. True, the property Brought less afterwards, but it was from a cause which they did not and could not foresee and which it is safe to say but very few, if any, did. The financial panic resulting from disastrous failures of that time was as sudden and as unexpected to them as to all others, and for it and the consequent deterioration in the value of property they were in no wise responsible. The same authorities may be cited as to this question of surcharge as to the one immediately foregoing, with equal application and effect. Numerous claims have been presented against the estate and they are enumerated hereafter. Upon very many of them payments have been made by the administrators, both of interest and on account of the principal. But as the estate will not pay in full, the payments made are not considered in the calculations for dividends, but the principal of each claim is taken, and interest added to the day of the judgment rendered in the Court of Common Pleas of Berks county in favor of the Kutztown Savings Bank against this estate. This will place all claimants upon an equality as to dividend. From the amount of dividend as declared to each claim, the administrators can deduct the payments already made by them, if any. The amount of these payments with interest have been calculated and set opposite the claims to which they apply..... On December 16,1886, counsel for creditors appeared before the auditor and asked that, 1. There should be a disallowance of counsel fees to the administrators for services of counsel during the pendency of the audit. 2. The imposition of a part of the costs of audit upon the administrators. In the settlement of the exceedingly complicated affairs of this estate, there was an absolute necessity of wise counsel to the administrators, and this necessity continued during the progress of the audit. The long continuance of the audit was not alone owing to the effort made by the administrators to prevent surcharge. During its progress one of their counsel died and they were compelled to get new counsel, and counsel other than him they had when they undertook the trust. The accounts tiled appeared to have been prepared in haste, and the administrators were dependent entirely upon their counsel and mainly in such preparation upon their clerk or clerks; and in the effort to explain the credit items of the accounts, they had to rely upon such explanations as were given by the clerk who kept the books or those who examined them. What this amounted to, counsel are well aware, and the difficulty and length of time consumed in getting the information, even when undertaken by counsel and the auditor themselves, by an examination of the books, is well known to them and under the circumstances is not surprising. The proceedings before the auditor extended over a long period of time, they were frequently interrupted, and were considerably delayed by awaiting the determination of the case of the Kutztown Savings Bank v. Merkel’s administrators. The auditor does not find that there was gross negligence on the part of the administrators so as to warrant him in disallowing counsel fees. They were acting under the advice of counsel in reference to the matters as to which they have been surcharged, and though in the opinion of the auditor, this fact is not sufficient in law to relieve them from surcharge or responsibility, yet it is a sufficient answer to this application to strike out counsel fees and impose costs of audit. : —After passing upon various other matters not involved in these appeals, the auditor re-stated the accounts in accordance with' his findings, and reported a schedule distributing the balance which he charged against the accountants among the creditors of the decedent. Exceptions to the report having been filed both by creditors and by the accountants, the court referred the matter back to the auditor to take additional testimony and report further upon the questions raised by the exceptions. On October 10, 1887, the auditor filed his second report. Therein he made a number of additional surcharges, and allowed a number of additional credits, not in question in the Supreme Court; adhered to the conclusions set out in the portions of his first report given above, and reported additional rulings, refusing requests of the creditors that he should surcharge the accountants with interest from the date of filing the accounts upon the balances thereby shown to be in their hands, which aggregated over $31,000, and also upon various items of surcharge, and that he should disallow all commissions to the accountants. With reference to the matter of charging interest upon, the balance shown by the accounts as originally filed, the auditor reported as follows: If it were really the case that so large an amount of money as $81,000 remained in the hands of the administrators from 1877 to the present time, the ruling of the Supreme Court in Bruner’s App., 57 Pa. 46, would compel the auditor to charge them with interest for at least a part of the time; “ with this sum in their hands and pending the lengthy proceedings before the auditor, it would have been the duty of the administrators ” to invest it, or at least to have prayed the direction of the Orphans’ Court upon the subject while the litigation was pending. But the fact is, that the larger part of this sum, if not the whole of it, was paid by the administrators to creditors, and it is admitted by the learned counsel for the creditors in his argument in these words: “ It is true a large part of this balance has been paid to some of the creditors in excess of what they were entitled to; but many others received little or nothing.” Even though some of the creditors were inadvertently paid in excess of the amounts to which they were entitled, it is manifestly unfair to charge them with interest even upon such excess; and if the great bulk of the money went to the creditors on account of their claims, the fact that some received nothing would not in itself be sufficient to warrant the auditor in charging them with interest on the moneys that had been paid by them to parties entitled to receive them; that is, to creditors. The auditor declines to make the charge asked for. Exceptions to the second report on the part of the creditors and of the accountants were disposed of in the following opinion, Albright, P. J., 31st district, specially presiding: The history of the settlement of this estate, and the questions raised by the exceptions now before the court, are clearly stated by the learned auditor. Therefore the court can proceed at once to consider the questions presented by the exceptions. Tlie great delay in the administration, and in the proceeding to adjust the accounts, and distribute, is made the foundation of several complaints by the creditors. It is demanded that the administrators be charged with interest on a number of sums received by them and that they be denied commissions..... The blame for the great delay does not rest on the administrators alone. The creditors were negligent also. The law enabled the creditors to obtain an account of the administration at the end of the first year, and such further accounts from time to time as the court might deem necessary. For neglect of duty the administrators could have been removed upon complaint by any one interested in the estate. While the matter was before the auditor, the creditors could have insisted at any time upon a distribution of what was in the administrators’ hands upon a sum being set aside to meet claims in suit. There was at least one suit by a creditor in the Common Pleas of this county. The litigation with Leybrandt affected only the proceeds of one tract of land, and that, too, was an effort to realize in addition to what was in hand. If the administrators were too tardy in applying for an order of sale, or in making sales pursuant to orders, they could have been compelled to act: § 86, act of February 24,1834, P. L. 80. But it is profitless now to dwell upon the unaccountable delay, except so far as the fact of delay bears upon the demands to surcharge, to impose interest, and the commissions of account* ants. By their exceptions the creditors assert that the compensation claimed and allowed by the auditor for the personalty and the realty ought to be stricken out'and the administrators be charged with interest as follows : . . . . Some of the questions thus presented, and many others arising in this record, are solved by a statement of the legal rights and duties of all concerned. The furnace property, the iron mine property, and all the real estate, of which George Merkel died possessed, belonged to his ' heirs immediately upon his decease, as did also all the rents and profits thereof. The personal property belonged to the administrators for the purposes of conversion into money, and distribution of the proceeds to the creditors. Much of the contention relates to the rent of the iron mine. The ground for this contention disappears by a statement of the law on the point. George Merkel owned the mine property in fee. In 1868 he demised it to Bushong & Co. for a period of 15 years. The lessees covenanted to pay to the “ lessor, his heirs or assigns,” $1 a ton (75 cents a ton when iron brought under $20 a ton) for all ore taken away, half yearly on the first days of May and November, at least 5,000 tons a year to be taken or paid for each year after the first. The lessees further covenanted to deliver •every year after the first, 5,000 tons of ore to the “lessor, his executors, administrators or assigns,” to supply the furnace referred to and another, the lessees to be paid the cost of mining the ore so to be yielded, also on the first days of May and November of each year. After George Merkel’s death the administrators carried on the business of making pig-iron for upwards of two years for the benefit o'f the heirs, and in doing so received and used large quantities of ore produced at said mine by the lessees. That ore, or the cost of mining it, is the subject of complaints by the creditors. I said that the business was carried on for the heirs. Probably the intention was to prosecute it for the benefit of the heirs and the creditors, but as it proved to be a losing business, its results have not been brought into this proceeding. At the time of George Merkel’s death, Bushong & Bro. held by assignment the right to receive said royalty of $1 a ton, as security for notes owing by Merkel. The argument of creditors’ counsel is, that said royalty and the ore to be delivered belonged to the administrators and must be accounted for by them; that at least that is true of the ore which was to be yielded to the lessor, his “ executors, administrators and assigns.” The royalty was to go to him, his “ heirs or assigns.” This contention cannot be assented to. The rule of law is that all rent goes to the heir and not to the administrator. The ore to be delivered was rent also. It was something to be returned as a part of the consideration for the demise. The two covenants (for the royalty and for the ore) must be taken together. The intent was that both in the lessor’s lifetime and thereafter during the term, the royalty and the cost of mining lessor’s ore was to be settled for at the same time and the one sum deducted from the other. But the decision of this point does not depend upon a construction of the lease alone. The rule of law settles it. When a man seised in fee makes a lease for years, the whole rent becoming due after his death shall go with his reversion to his heir and not to his executor; and though the rent should be expressly reserved to the lessor or his executor or assigns without naming the heir, the executor cannot have ■ it. On the other hand, if a lessee for years underlets reserving rent, the rent accruing after his death shall go to his executors or administrator, and not to his heir, even though the reservation were to him and his heirs without mentioning the executor: Williams on Executors, *730. Thus it is seen that the administrators are not chargeable with the ore received as aforesaid, or with anything connected therewith.1 8..... The goods were sold upwards of two years after the appraisement, and after the administrators had stopped operating the furnace, in which business most of the goods were used. Credit for a decrease of $7,316.37 was claimed and refused by the auditor. The auditor charged the administrators with the value at which the goods had been appraised. The auditor by his first report found a balance of $41,159.63 in the administrators’ hands, of personalty. This was considerably reduced by expenses and other credits subsequently allowed. As to the demand to charge interest as above set forth: It is not alleged that the administrators received any benefit by using or loaning the money. But it is said that they ought to answer for the delay or the failure to invest pending the litigation, during the contest before the auditor. Among other cases that of Bruner’s App., 57 Pa. 46, is cited to support this demand. But the reasoning in that case does not apply here. There was in this case no occasion for or propriety in investing. The time to distribute had arrived. The auditor was engaged in the. task of settling the balance and making distribution. The administrators had a right to expect a report and decree at any time after the latter part of the year 1877, or the early part of 1878. A placing of the money at interest, almost necessarily on time, would have been improper. Had they applied to the court for authority to invest, they would no doubt have been told that the court would not by such action encourage undesirable delay. For these were trustees to convert and distribute, not to manage or invest. If it could be said justly that the administrators alone were-responsible for the delay since 1877, and especially that they caused it by introducing matters that did not belong in the proceeding, in' that case they ought to be punished by the imposition of interest. But by the showing of this record this cannot be imputed. The administrators had not the power to prevent a distribution of what was on hand, when the auditing commenced, and also what came into their hands afterwards. No proper consideration requires the charging of any of the items of interest mentioned.5 6 In defence of the administrators it is urged that they never kept money on hand, but paid to creditors from time to time, and that they paid many general creditors in full under the belief that the estate was solvent. The auditor believed that this was the truth, and with this conclusion no fault is found. But that did not make the case of the unpaid creditors any better. It is a poor excuse for withholding one man’s money to say that by mistake it was paid to another. The refusal to charge interest is based on the grounds that it is not shown that the administrators used or loaned the money, and because they were required to be ready at any time to pay out, in pursuance of a decree o£ distribution, which decree they had a right to expect at any time during the period in question. Before discussing the said question of commissions on the personalty, the surcharge complained of by accountants will be considered. Most of the goods appraised were made use of by the administrators in carrying on the furnace business. They were not sold until upwards of two years after the taking of the inventory. They brought $7,310.37 less than their appraised value. For this the administrators craved and were denied credit. What the auditor says on this point and also as to the propriety of carrying on the business of making iron until the blast in operation at the time of Merkel’s decease was finished and stopping then, is indorsed by the court. It is admitted by all concerned, or at least it is incontrovertible, that after the spring of 1873 the administrators carried on the business at their own risk. One of the elements of that risk was that they must account to the creditors for what the goods were worth when they ought to have been sold. They were worth the appraised value. The prima facie evidence of the inventory has been corroborated by the testimony of the appraisers. The delay and irregularity in the sale of the realty; to be discussed hereafter, deprives the-accountants of the excuse that they were warranted in postponing a sale of the personalty until the furnace to which most of it belonged had been sold. The action by the auditor upon this question is approved.3, b 3 Are the administrators entitled to compensation for what they did respecting the personalty? They no doubt devoted much time and attention to it. But what was the purpose and result of what they did ? There was a desire and expectation in the beginning to save something for deceased’s family. This was a praiseworthy motive. But action for that purpose was not a legal duty. That it injured the creditors is plain. At an early period of the administration, there was ground to believe that the estate would prove insolvent; that the personal estate would prove insufficient to pay the debts must have been apparent from the beginning. The law contemplates and requires accounting in a year from the granting of letters of administration. It is unnecessary to refer to many authorities to show how claims for compensation by trustees are to be regarded. The rules and considerations governing the question are well understood. Trustees are to be paid actual compensation for the value of their services, to be determined under the circumstances of the particular case. Compensation is allowed as the reward of faithful execution of the trust confided, and it is withheld where there has been confusion and procrastinating delay: Stehman’s App., 5 Pa. 417. This is the rule. It is not applied with rigor, where the delay and departure from the requirements of law have not operated to the prejudice of the beneficiaries. Can any one successfully assert that it would not have been better for the creditors if the administrators had within a year or two handed over to them the proceeds of the sale and collection of the personal assets, than to deal with them as they have been dealt with ?■ The history and results of the administration permit a disinterested person to give but one answer, an answer unfavorable to the accountants. The law governing the case requires a withholding of compensation.0 d In reaching this conclusion the court concedes that the administrators meant well, paid many creditors in full, and probably paid out all they received from time to time. But that did not benefit thóse who were entitled to be, but were not paid, and who are still clamoring for their legal rights. Failure to perform duties imposed by law, resulting to the prejudice of those concerned is a sufficient ground to withhold compensation. Nothing worse than such failure is imputed here..... The creditors’ exceptions raise questions connected with the sale of the land. The land belonged to the heirs. But it was subject to the lien of decedent’s debts not of record, and could be sold to pay them under directions of this court. When it appears to an administrator that the personal estate is insufficient to pay the decedent’s debts, he should apply to the Orphans’ Court for an order to sell real estate sufficient to pay the debts; if the administrator does not proceed to sell, any creditor can compel him to do so: § 20, act of February 24, 1834, P. L. 76. Any sale so made by an administrator requires the court’s approval. Any one concerned may object to its approval. If the objection is deemed valid, the sale is set aside. Thus it is clear, that if the administrators delayed unwarrantably the sale of the land, because they hoped to obtain a better prico, or for any other cause, the creditors who are now complaining could have ended the delay by resorting to the court. If they deemed the prices inadequate, they had their day in court to seek to set aside the sale and bring about others. Therefore, for legal reasons, added to those given by the auditor, the demand to surcharge because the real estate was not sold for more must be denied.1 8 There is no valid reason to surcharge administrators simply for delay in selling land, or for not selling at a higher price than the one obtained. Of course, if it appeared that an administrator was actuated by a desire to benefit himself, or his relatives or friends, or that he was guilty of fraud in any form, he could be visited with the damages his wrong had occasioned. Then the decrees approving his sales would be no protection to him. But no fraud or improper motives are alleged in this case. The effort here is to surcharge the accountants with the difference between what the main tracts sold for under order of court and the sums bid for the same at previous auctions. The auditor refused to surcharge. His reasons are deemed valid by the court. The cases cited by creditors’ counsel, Moore’s App., 10 Pa. 435; Springer’s Est., 51 Pa. 342 ; Leslie’s App., 63 Pa. 355; and Dundas’s App., 64 Pa. 325, do not sustain his contention.' They are all cases where executors were vested by wills with powers concerning real estate. In the first, there was a question of surcharging for riot realizing enough rent; the other three relate to the power to surcharge executors vested with power to sell land, for selling for less than should have been realized. The distinction between a case of that kind and that of a sale made by an administrator, with the approval of the court, is evident. I think that both fairness to all concerned, and an observance of the rules governing sales of real estate by administrators, under orders of court, require that any one interested who is dissatisfied with the price shall present his objection in the proceeding to sell, not to the account. He ought to except to the sale before its absolute confirmation, or apply to open the decree of confirmation. A resale, not a surcharge, is the remedy. Whether the administrators are deserving of commissions for selling the land, is, however, another question. The auditor found that for the mine property sold at $69,000, at least $90,000 was bid at a previous auction, and the bid refused, and that the furnace property had been struck down at $30,000, but that sale was not consummated, and that it was afterwards sold for $21,000; also that several auctions of land were held by the administrators without orders of court. What was bid at each of said unauthorized auctions does not distinctly appear, except that $30,000 for the furnace property was bid at one of them. That sale fell through because .it was made without order of court. The bidders signed the agreement, and they were amply responsible. It afterwards brought$9,000 less. • If no other cause to refuse commissions existed, would not this alone compel a refusal of such compensation?' That damage resulting from the administrators’ negligence, the injurious effects of several times offering to sell without authority to do so, the delay in selling and the using of the real estate for the benefit of parties other than the creditors, after it was apparent that the land would have to be sold to pay debts, make the refusal of commissions a duty.® For, as is said in the case of Stehman’s Appeal, already referred to, commissions are given “ as the reward of a faithful execution of the trust confided,” not for occasioning “reckless confusion and procrastinating delay.”' There is no good reason for refusing to credit for the $1,300 paid to counsel.9 They were not the advisers in the early part of the administration, when the irregularities just referred to occurred. It is probable that the bulk of this sum was for conducting the proceeding against Leybrandt in the Common Pleas and in the Supreme Court. Then, too, the administrators required counsel in the long proceeding before the auditor. The administrators were not only defending when- they were in the wrong, but strong efforts were made to impose upon them heavy burdens which the law did not require them to bear. This is shown by the minutes of the auditor and the exceptions in court. If it were disallowed it would be the administrators’ personal loss, as it was paid long ago, other counsel now representing them. These fees were paid to counsel of high standing who certainly did not misadvise their clients. What has been said concerning counsel fees also applies in part to the request to visit a portion of the costs of audit upon, accountants. A further reason for refusing the request is that the audit would have been necessary in any event.10 The accountants complain of the auditor’s action in refusing them credit for $14,175 interest paid by th/>m at van'll w ¿unes on the Tower debt of $60,000, which was secured by mortgage of the furnace and mine properties. It was the interest which fell due after the intestate’s death, and up to the time the administrators conveyed to their vendees. The principal was deducted from the bids for said properties. 1 presume the properties were sold with an understanding that it should be done. By virtue of a local act of assembly the mortgage was not devested by the sale for the payment of debts. This exception must be sustained.4 The general creditors were not prejudiced by the payment. They take the balances of both the real and personal funds. If said interest had not been paid, $14,175 less proceeds of land woizíld be on hand for them. In the second place, the creditor w]¿o had the land as a pledge had a right to be paid out of the |/ersonal property fund the same as the other creditors: Shurik’s /A pp., 2 Pa. 304; Morris v. Olwine, 22 Pa. 441; Keim’s App., 27 Pa. 42. By resorting to both funds, the mortgagee did not disappoint the general creditors. No marshaling of assets was or is necessary. This question deserved and received careful consideration by the court. The conclusions of the auditor respecting it have not been regarded lightly. There is room for a belief that the auditor’s decision does equity. Still, it is useless to attempt to strain the law to reach a result, however fair it may seem to be. The auditor is of the opinion that the administrator paid it out of the rents and profits of the mortgaged lands. I do not think that fact is established, or that it would warrant the refusal of credit if it were established. The land was the property of the heirs, together with the rent issuing thereout, that is, the royalty and the ore to be delivered. It was encumbered by the mortgage. The general creditors had a statutory lien on the equity of redemption. The administrators, standing charged with the personal estate which came or ought to have come to their hands, and the proceeds of the sale of the land, including the equity of redemption of said two tracts, that is $14,640.18, (the items of $1,340, $7,105 and $6,195.13,) cannot be charged with anything more. They cannot be compelled in this proceeding to account fo^ the rents and the profits of the land. The payment of the interest was a proper disbursement, was nor -b°trimental to the general creditors, and upon no theory can credit for it be refused. If the mortgagee had taken possession by virtue of his mortgage and had appropriated the issues and profits of the land conveyed to him as security, such reception would have been on his debt. But he did not have possession..... A final decree was entered overruling exceptions of the creditors to the refusal of the auditor to surcharge the accountants with the value of the ore furnished to them under the lease of the Moselem tract;1 with the price of mining and raising the ore, paid by them;2 with interest on the balances in theirdiands pending the audit,6 and interest on certain items of surcharge;6 with the loss on the sale of the Moselem tract,7 and the MahWcreek tract,8 and with the counsel fees paid by the administrators,9 and his refusal to impose upon the accountants the costst of audit;10 sustaining exceptions of the creditors to the allowance of commissions to the accountants;c d sustaining exceptions by the accountants to the disallowance of credit for interest paid upon the mortgage;4 overruling exceptions by the accountants to the refusal of credit for the loss on the sale of the personal property,a b and ascertaining the balances in their hands as affected by the disposition made of these exceptions. Thereupon Elias Sunday and others, creditors of the decedent, took the appeal at No. 192 January Term 1888, specifying that the court erred: 1. In not surcharging with the value of the ore furnished from the Moselem tract.1 2. In not surcharging with the cost of mining and raising the ore.3 8. In surcharging with but $7,316.37, instead of $9,316.37, for the loss on the sale of the personal property.3 4. In allowing credit for the interest paid on the mortgage.4 5, 6. In not surcharging with interest on moneys in accountants’ hands.3 6 7, 8. In not surcharging with the losses on sale of real estate.7 8 9. In allowing credit for counsel fees.9 10. In not imposing part of the costs upon the accountants.10 The accountants took the appeal at No. 368 January Term 1888, assigning for error: 1. The surcharge for the loss on the personal property.a 2. The refusal of credit for the same.b 3. The refusal of all compensation for the accountants’ services.® 4. The striking out of the credits taken for commissions.0
131 Pa. 614Comm'th v. Detwiller (1890)
APPEALS BY DEPENDANTS PROM THE COURT OP COMMON PLEAS OP NORTHAMPTON COUNTY. Nos. 38, 68, 76 January Term 1889, Sup'. Ct.; court below, Nos. 23 April Term 1887, and 23 October Term 1888, C. P. On May 9,1887, upon the suggestion and complaint in the name of the commonwealth of Asa W. Dickinson, H. Eugene Hamilton, John A. Shawde and H. Mellick, filed to No. 23 April Term 1887, court below, a rule to show cause was made absolute and a writ of quo warranto issued against John J. Dot wilier, Joseph M. Hackett, Thomas Rinek, John Bacon and James A. Edelman. Answers having been filed by the respondents, issue was joined, and the cause was called for trial before a jury on January 11, 1888, when by agreement of the parties it was submitted to the decision of the court, without a jury, under the act of April 22, 1874, P. ,L. 109. The facts and the questions of law involved fully appear in the opinion of tbe court, Reeder, J., filed on August 16,1888: This cause was called for trial last January, and after the conclusion' of the evidence it was agreed that a juror should be withdrawn and the case submitted to the court under the act of April 22, 1874. The Farmers & Mechanics Institute of Northampton county was incorporated by the Court of Common Pleas of Northampton county on April 25,1856. It is provided by the charter, “ that the members of the association shall elect fifteen of their number to be a board of directors, who shall within ten days after their election divide themselves by lot into three classes of five each. The first class shall serve for one year, the second class for two years, and the third class for three years, from the second Tuesday of January next. The mode of conducting the elections and for filling vacancies by death or by resignation, and the duties of the officers, shall be provided by resolutions or by-laws.” On January 11, 1887, that being the second Tuesday of January, the terms of five directors expired, and the members of the corporation met for the purpose of holding an election to supply the vacancies. At that election Asa W. Dickinson, A. S. Deichman, George E. Sciple, Peter Robinson, John A. Shawde and H. Eugene Hamilton each received 890 votes; William R. Wilson received 388 votes; and John J. Detwiller, J. M. Hackett and Thomas Rinek each received 232 votes, and John Bacon 234 votes. Howard Mellick, one of the relators, was elected a director to serve three years, at a meeting of the members of the said corporation held on the second Tuesday of January, 1886. James A. Edelman, one of the respondents, was elected a director on the second Tuesday of January, 1883, and was re-elected again for a term of three years on the second Tuesday of January, 1886. He owned at that time two shares of stock. The stock was sold to Jacob Hay on December 21, 1886, and the stock was delivered, with a power of attorney for the transfer of the stock upon the books of the corporation, to Jacob Hay upon the same day. This was all the stock owned by James A. Edelman at that time. The transfer of this stock was not made on the books of the corporation until February 1, 1887. On that same day, viz.: February 1,1887, Mr. Edelman purchased and had transferred to him on the books of the corporation two other shares of stock which he held up to and at the time of the trial. All of the relators are residents of the state of New Jersey, and were so at the time of their election. They are all stockholders in the corporation; Asa W. Dickinson held 110 shares of stock; H. E. Hamilton, 141 shares; John A. Shawde, 1 share, and Howard Mellick, 1 share. Of the votes cast for those of the relators who were voted for and declared elected by the judges of election on January 11, 1887, 339 were cast by Thomas A. H. Hay by virtue of proxies legally executed and in proper form, and of these, 251 votes were east by virtue of proxies executed by stockholders not citizens of the state of Pennsylvania, viz.: for Asa W. Dickinson 110 votes, and H. E. Hamilton 141 votes. At the election, one vote was cast for each share of stock that was voted for, and was so counted by the judges of election. Fourteen of the stockholders were present at said meeting, five of whom voted for the relators and nine for the respondents. The proxies of six others of the stockholders were held by Thomas A. H. Hay, the votes upon which were east for the relators. So that of the individual stockholders actually present and voting (without reference to the number of shares held by each of them), tbe majority voted for tbe respondents. Of the individual stockholders present in person and represented by proxy, a majority voted for tbe relators. A majority of the stock voted by stockholders actually present .was voted for the respondents. A majority of all the stock voted by tbe stockholders present and by proxies was voted for the relators. The by-laws of the corporation contain tbe following provision : “ Section 7. When any director shall die, resign, neglect to serve or remove out of the county, the board may proceed to supply tbe vacancy by the election of a new director to serve until the next annual election, when the members of the institute shall elect one for tbe unexpired term.” On February 5, 1887, there was an adjourned meeting of tbe board of directors, at wliich the president pro tem. announced “that inasmuch as four persons, not residents of Northampton county, nor citizens of Pennsylvania, had been returned as elected to tbe board of directors, and inasmuch as tbe by-laws of tbe said institute render it impossible for such persons to sit as directors, he declared the seats vacant and announced that it -was in order to supply four vacancies in the board by election, those elected to serve according to the by-laws until tbe next annual election,” etc. Thereupon tbe relators withdrew from the meeting and left tbe room. Tbe board tben adopted the following resolution : “ Resolved, That we proceed to the election of four directors to fill as many vacancies in the board, as provided by tbe by-laws.” They then elected John Bacon, Jolin J. Detwiller, Joseph M. Hackett and Thomas Rinek, directors. Thoy bave since that time acted, and at the time of tbe impetration of tbis writ were acting, as members of tbe board of directors by virtue of said election. On April 11, 1884, tbe by-laws of the said corporation were amended to read as follows: “Section 12, article I. In all elections members shall be entitled to one vote for every share of stock held by tbem respectively, which may be voted either in person or by proxy.” The legal questions raised by the facts as found by the court in tbis cause are: 1. Whether under the law of Pennsylvania persons not citizens of the state are eligible to act as directors in corporations such as this? 2. Whether under the law of Pennsylvania, and the charter of this corporation, stockholders, not citizens of the state, have a right to vote at elections for directors ? 3. Whether under the by-laws of this company, persons, not citizens of the county, are eligible to vote as directors? 4. Whether stockholders had a right to vote at an election by proxy? 5. Whether each stockholder was entitled to cast a vote for each share of stock held by him, or whether each member was entitled to one vote, and only one vote, without regard to the number of shares of stock he might own. There is one other question involved in this cause, besides those which we have already stated, which we will consider' and dispose of first. James A. Edelman had been a stockholder in the corporation and was elected a director on December 21, 1886. He sold and delivered his stock to Jacob Hay, together with a power of attorney for its transfer. The stock still stood in his name on the books of the company at the time of his election and afterward. On February 1, 1887, when it was transferred to Jacob Hay, he purchased and had transferred to. himself two other shares of stock. Did such sale to Jacob Hay ipso facto devest him of the authority to act as a director? ..... James A. Edelman was the legal owner of two shares of stock until February 1, 1887; on that day two shares of his stock were transferred to Jacob Hay and two other shares of stock were transferred to him. I do not know whether it appears in evidence which transfer was made first. Nor does it matter. Having been made upon the same day, in the contemplation of the law they were simultaneously made. This view of this question, so far as it affects James A. Edelman, disposes of it. And it is, therefore, unnecessary for us to consider whether he, having divested himself of his stock, could, by the acquisition of other stock at a date prior to the filing of the suggestion for this writ, rehabilitate himself. The writ as to him must be dismissed. Under the laws of Pennsylvania and the charter of this company, can persons not citizens of the state act as directors ? By the act of October 13, 1840, § 13, P. L. (1841) 5, it was provided that when any number of persons, citizens of this commonwealth, are associated or mean to associate for any literary, charitable or religious purpose, or for the purpose of forming any fire engine or hose company, or beneficial society, such associations could be incorporated by the courts of Common Pleas. This was virtually a re-enactment of the act of April 6, 1791, together with its supplement of April 8,1838, P. L. 238; the only material difference being that in the earlier act the power to incorporate was vested in the governor, while in the later act it was in the Court of Common Pleas. The act of February 20, 1854, P. L. 90, extended the power of the court under the act of 1840 to the incorporation “ of societies for the promotion, of science and agriculture, to cemeteries or burial associations, and to societies for the detection of thieves and recovery of stolen property.” It was under the act of 1840, with its supplement of 1854, that the Farmers & Mechanics Institute of Northampton county was, on April 25, 1856, created a body corporate by the Court of Common Pleas of Northampton county. It is contended by the respondents that the act of assembly under and by virtue of which the company was incorporated was confined to citizens of the state of Pennsylvania, and that therefore the membership in the corporation must be restricted to citizens of Pennsylvania. It is undoubtedly true that the courts had no power to incorporate, under the act of 1840 and its supplement, any association of persons other than citizens of Pennsylvania. But, must the membership now, since its incorporation, be restricted to those only who are citizens of the state ? Corporations are of two kinds; those in which the members have a personal right which cannot be transmitted by sale, bequest, or inheritance, and those in which the members have a right of property. In the former, the right being merely personal and one which terminates by death or removal and which cannot be made the subject of sale, such as beneficial, literary and religious associations, the restriction of membership to citizens of the state or to those of a certain class, is in contravention of no constitutional provision, and such membership can therefore be restricted, limited and restrained. But it is not so with corporations which are in the nature of trading corporations, or where there may be profits to be divided, or where the membership by its organic law carries with it such a right of property as may be sold, bequeathed or inherited. To the latter class this company belongs. The charter declares “That we citizens of the United States.” By its terms there was no limitation other than that, to membership. Provision was made in the charter for the division of all excess of income as dividends upon the stock, as well as the division of the property at the dissolution of the corporation. It was organized for the purpose of giving exhibitions of agriculture and mechanical products, and charging admission fees to such exhibitions. The charter provided for issuance of stock at the subscription price of $25 a share, “ the aggregate subscriptions of which shall constitute the capital stock of the company, which shall be invested for promoting the object of the association.” “ The object of the association shall be to promote agricultural and mechanical science and domestic economy, by exhibitions, premiums, lectures, essays, or such other lawful means as shall best accomplish these objects.” The second section of article IV. of the constitution of the United States provides: “ The citizens of each state shall be entitled to all privileges and immunities of the citizens of the several states.” “ Attempts will not be made to define the words, privileges and immunities, or to specify the rights which they are intended to secure and protect, beyond what may be necessary to the decision of the case before the court..... It will be sufficient to say that the clause plainly and unmistakably secures the right of citizens of one state to pass into any other state of the Union, for the purpose of engaging in lawful commerce, trade or business without molestation, to acquire personal property, to take and hold real estate, to maintain actions in the courts of the state, and to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens: ” Ward v. Maryland, 12 Wall. 418. “ The inquiry is, what are the privileges and immunities of the citizens of the several States ? ... . They may all be comprehended under the following general heads: protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind.....To take, hold and dispose of property either real or personal: ” Corfield v. Coryell, 4 Wash. C. C. 380-1. “ The complainants contend that the seven or thirteen persons, mentioned in the law, who are to join in the articles of association, must be citizens of this state, and that the legislature did not intend to confer the privileges upon others.....The legislature has not attempted to make any discrimination in the law against citizens of other states. The term it uses is ‘persons.’ Citizens of other states are, by virtue of the constitution of the United States declaring that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, entitled to all the privileges to which citizens of this state are entitled under the law Central 11. of N. J. v. Penna. R. Co., 31 N. J. Eq. 486. To hold, therefore, that no one could hold shares of stock in the Farmers & Mechanics Institute by purchase, inheritance or bequest, except citizens of the state of Pennsylvania, would be in contravention of the express provisions of the constitution of the United States. It was ingeniously and ably argued by the counsel for the respondents that the charter made a distinction between the “ members ” and “ stockholders ” of this corporation; that all those who held stock were stockholders, and all stockholders residents of the state of Pennsylvania were members. A careful examination of the charter makes it appear that there is nothing in this contention, but that the words “ member ” and “ stockholder ” are used interchangeably. If their position is correct, then, upon the dissolution of the company, the property would be divided among the members, to the exclusion of the stockholders. This statement shows the absurdity of such contention. We conclude, therefore, that the relators are members and stockholders of the Farmers & Mechanics Institute. It is provided by the charter that “ the members of the association shall elect fifteen of their number to be a board of directors,” etc., etc. There is no provision in the charter anywhere defining the qualification of a director other than this, which makes it necessary for him to be a “ member.” We have already declared that in our opinion these relators were members of this association, and therefore eligible under the charter for election as directors. Is there any provision anywhere in the laws of Pennsylvania making them ineligible as directors? By the act of April 10, 1868, P. L. 80, it is provided: “It may be lawful from and after the passage of this act for any corporation chartered or existing under the laws of this state to determine by a vote of its stockholders, at a meeting duly called for that purpose, the number of directors which shall thereafter govern their affairs; provided always that the said number shall in no event exceed fifteen nor be less than five directors; and provided further that the majority of said directors and officers shall be and remain residents of the state of Pennsylvania during the discharge of their duties.” If this act has any application to this company, it would not affect the right of these relators to act as directors, as the other eleven directors are citizens of the states of Pennsylvania. We can find no other law which would prevent their acting. We therefore hold that stockholders not citizens of the state not only have a right to vote for directors, but that they are also eligible to act as such, so long as they continue a minority of the board. Are these relators qualified to serve as directors under the by-laws of this company ? Among the by-laws is found the following: “ Article 1, § 7. When any director shall die, resign, neglect to serve, or remove out of the county, the board may proceed to supply the vacancy, by the election of a new director to serve until the next annual election, when the members of the institute shall elect one for the unexpired term.” It will not be necessary for us here to pass upon the validity of this by-law, to determine whether the board of directors had the power to pass it, or whether it is unreasonable and therefore void. Was it ever violated by these relators? It is in restraint of the rights of certain members to sit in the board of directors and have a voice in the management of property in which they have an interest, and must therefore be strictly construed. The only portion of the by-law which it is contended has any application to this case, is that which gives the board the power to create a vacancy whenever a director moves out of the county. Neither of these relators have ever done that. They were non-residents of the county at the time of their election, a contingency which this by-law does not meet, and' which probably it was never intended to meet. The success of any institute, such as this, depends upon the local interest which is taken in it. A man who will contribute largely to make it successful, so long as he resides in the vicinity, may no longer be useful if he moves away. In the event of his removal, therefore, the board may fill his place. It may be politic • — indeed the history of the company shows that for many years they considered it so — to elect as directors and officers persons, who, at the time of their election, were non-residents of the county. There can be no objection to this. This by-law does not make such election illegal. Had the stockholders of this company a right to vote by proxy ? The charter contains no provision directly authorizing the casting of votes by proxy, but we find in it the following provision : “ The mode of conducting elections and for filling vacancies by death or resignation, and the duties of the officers, shall be provided for by resolutions and by-laws.” In the bylaws we find the following: “ Article I., § 12. In all elections members shall be entitled to one vote for every share of stock held by them respectively, which may be voted either in person or by proxy.” The evidence discloses that 339 of the votes cast for the relators were cast by proxy. If these votes are illegal then judgment must be entered for the respondents. The right to vote by proxy is not a common law right. The authority to so vote must be conferred by proper provision somewhere. In this corporation the charter confers the power to provide for the mode of conducting elections by by-laws, and we also find a by-law authorizing votes to be cast by proxy. Is this sufficient? The charter confers upon the company the right to regulate the mode of conducting elections; the company passed, in pursuance of this authority, the by-law authorizing voting by proxy. This by-law was certainly within the provision of the charter authorizing the regulation of the mode of conducting elections. In Cook on Stockholders, § 610, the author says: “ When the charter is silent, the right to vote by proxy may in the absence of statutory provision be conferred by a by-law.” Chancellor Walworth says: “ The right of voting by proxy is not a general right, and the party who claims it must show a special authority for it,.....and it is possible that it might be delegated in some cases by the by-laws of a corporation, where express authority was given to make by-laws regulating the manner of voting: ” Phillips v. Wickham, 1 Paige 590. In the case of State v. Tudor, 5 Day 329 (5 Am. Dec. 162), the sole authority of the members of a corporation to vote by proxy was in a by-law. The court held such by-law conferred the right. In Morawetz on Corporations, § 486, the writer says : “ That the right of voting by proxy may be conferred through a by-law adopted by the majority, appears to be reasonably well settled.” That the right of voting by proxy may be conferred by a by-law seems inferentially to have been recognized by the Supreme Court of this state in the case of Commonwealth v. Bringhurst, 103 Pa. 134. Chief Justice Mercur. says: “ As the relators cannot point to any language in the charter expressly giving a right to vote by proxy, and as it is not authorized by any bylaw, they have no foundation on which to rest their claim.” In view of these authorities I conceive it to be lawful for the members of the Farmers ■& Mechanics Institute under their by-laws, to vote by proxy, and that the votes so cast at the election on January 11, 1887, were legal votes entitled to be counted for the persons for whom they were cast. Had each stockholder a right to cast a vote for each share of stock held by him; or was each member entitled to one vote and only one, regardless of the number of shares of stock he held? Under the act of October 13, 1840, among the enumeration of powers conferred, we find this provision: “ and shall be authorized and empowered, and they are hereby authorized and empowered to make rules, by-laws and ordinances and do everything useful for the good government and support of said corporations respectively; provided, also, that the said bylaws, rules and ordinances, or any of them, be not repugnant to the constitution and laws of the United States, to the constitution and laws of this commonwealth, or to the instrument upon which the said corporations respectively are as aforesaid formed and established.” In the charter of this corporation we find the provision that “ the mode of conducting elections .....shall be provided for by resolution or by-laws.” In the by-laws, we find: “ Article I., § 12. In all elections members shall be entitled to one vote for every share of stock held by them respectively, ” etc. A by-law not inconsistent with the constitution and laws of the United States, or the constitution and laws of Pennsylvania, or with the charter, is a valid, lawful by-law. In Morawetz on Corporations, § 476, the author says : “It seems that at common law each shareholder is entitled to east but one vote. But there are good reasons for holding that this rule has no application to ordinary joint stock business corporations of the present day.” In Cook on Stock and Stockholders, § 608, we find the following: “ At common law, in public or municipal corporations, each elector has one vote and only one. This rule has been applied to stockholders in a private corporation, and it has been held that such a shareholder has but one vote, although he be the owner of many shares of the capital stock. Almost universally, however, the charter of a company, or a statute, or a constitutional provision, gives to each share of stock one vote at every corporate meeting, and at the present day it is probable that no court, even in the absence of such provision, would uphold a rule which disregards in the matter of voting the number of shares which the shareholder holds in the corporation.” If this provision in regard to stock voting had been incorporated in the charter, there could be no doubt that it would confer upon the stockholders the right to cast one vote for each share of stock held by them: Yide Commonwealth v. Bringhurst, 108 Pa. 134. The charter, however, contains the provision that the method of conducting the elections shall be provided for by the by-laws, and this by-law is adopted by the company in accordance with this authority. Is not this as binding upon the stockholders of the corporation as if it were embodied in the charter itself ? The respondents contend that as the charter makes a distinction between members and stockholders, therefore, this question falls within the ruling of Commonwealth v. Gill, 3 Wh. 248. The difficulty with this proposition is in its premise. The charter, as we have already said, does not make a distinction between “ members ” and “ stockholders,” but uses the terms interchangeably. Within the provisions of this charter the two terms “ members ” and “ stockholders ” are meant to indicate the same class of individuals. For the reasons hereinbefore given, we find, therefore, that on January 11, 1887, the relators, Asa W. Dickinson, H. E. Hamilton and John W. Shawde, were lawfully elected directors, and that on the second Tuesday of January, 1886, Howard Mellick was lawfully elected a director in the Farmers & Mechanics Institute of Northampton County, and that they were entitled to such offices on February 5, 1887, when their offices were declared vacant, and John J. Detwiller, John Bacon, J. M. Hackett and Thomas Rinek, four of the respondents elected in their stead. Now, August 16, 1888, it is considered and adjudged that the said John J. Detwiller, John Bacon, J. M. Hackett and Thomas Rinek are guilty of usurping, intruding into and unlawfully holding and exercising the offices of directors of the Farmers & Mechanics Institute of Northampton County, and the court here do give judgment that the said John J. Detwiller, John Bacon, J. M. Hackett and Thomas Rinek be ousted and altogether excluded from said offices; and the court do further decide that the said Asa W. Dickinson, H. E. Hamilton, John A. Shawde and Howard Mellick, the relators, were legally elected and entitled to the said offices of directors of the said corporation; the respondents, John J. Detwiller, J. M. Hackett, John Bacon and Thomas Rinek to pay the costs. Judgment is entered in favor of James A. Edelman, one of the respondents. • —On September 18, 1888, upon a like suggestion and complaint filed by Thos. A. H. Hay, Jacob Hay, William O. Hay, Albert H. Robinson, A. S. Deichman, Peter Robinson, Howard Mellick, William R. Wilson and George E. Sciple, to No. 28 October Term 1888, court below, a writ of quo warranto was issued against C. L. Hemmingway, Thos. Rinek, John A. Seitz, Philip F. Stier, Nathan H. Heft, John J. Detwiller, John Bacon, Asher J. Odenwelder, William Young and Samuel Drake. Answers having been filed and issue joined, the cause was called for trial on October 20, 1888. A verdict having been returned, judgment was entered in accordance therewith on October 22, 1888, as follows: The said Charles L. Hemmingway, Thomas Rinek, John A. Seitz, Philip F. Stier, Nathan H. Heft, John J. Detwiller, John Bacon, Asher J. Odenwelder, William Young and Samuel Drake having been found guilty, by the verdict of the jury, of usurping and intruding unlawfully in the office of directors of the Farmers & Mechanics Institute of Northampton County, the court therefore give judgment that the said defendants be ousted and altogether excluded from the said offices of directors of said corporation ; and the court do further decree that the offices of directors for three years shall be held by Thomas A. II. Hay, Jacob Hay, William O. Hay and Albert H. Robinson, their terms of office to date from January 10, 1888 ; and that the office of directors of the said corporation to serve for the term of two years from January 10, 1888, shall be held by A. S. Deichman; and that William R. Wilson and George E. Sciple shall hold the offices of directors of the said corporation for three years from the second Tuesday in January, 1887; and that Howard Mellick shall hold the office of director of said corporation for three years from the second Tuesday of January, 1886; and that Peter Robinson is not eligible to serve as a director for the said corporation for the reason that he is not a citizen of the United States; and the court do further give judgment against the said defendants for the costs of suit. In Commonwealth ex rel. v. Detwiller et al. the defendants thereupon took the appeal to No. 88, specifying that the court erred, inter alia: 1. In holding that persons not citizens of Pennsylvania are eligible to the office of directors of this institute. 2. In holding that, under the law of Pennsylvania and the charter of this corporation, stockholders not citizens of said state have a right to vote for directors of this institute. 5. In holding that stockholders had the right to vote by proxy. 6. In holding that stockholders were entitled to cast one vote for each share of stock held by them. 7. In not deciding that the by-law, article I., § 12, which reads: “In all elections members shall be entitled to one vote for every share of stock held by them respectively, which may be voted either in person or by proxy,” is void because the same is in conflict with the charter, which says that “the members of the association shall elect the board of directors.” 8. In holding that the qualifications of voters prescribed in the charter, to wit, that the members of the association shall elect fifteen of their number to be a board of directors, could be legally changed by a by-law. 13. The court, referring to the by-law, article I., § 7, which reads as follows: “When any director shall die, resign, neglect to serve or remove out of the county, the board may proceed to supply the vacancy by the election of a new director to serve until the next annual election, when the members of the institute shall elect one for the unexpired term,” erred in deciding that the same was not violated by the relators when they severally took upon themselves the offices of directors, they not being at the time of their election citizens or residents of Northampton county or of Pennsylvania. The court should have decided that according to said by-law the seats of the four ■relators, Hamilton, Shawde, Dickinson and Mellick were vacant. In Commonwealth ex rel. v. Hemmingway et al., the defendants took the appeal to No. 68, filing specifications of error raising substantially the same questions raised by the specifications of error filed in the preceding appeal. Peter Robinson, also, took an appeal to No. 76, specifying that the court erred in holding that the 'appellant was not eligible to serve as a director of said association for the reason that he was not a citizen of the United States, and in so entering judgment.
131 Pa. 638Estate of Martin (1890)
[To be reported.] 1. No legal or moral obligation is created by the expression of an honest belief respecting a business enterprise to a person contemplating an investment therein; and, the giving of advice, after the investment is made, favorable to such investment, raises no duty which will constitute a sufficient consideration for a promise to reimburse the investor for any loss upon it. (а) A decedent’s son Robert wrote to a claimant against the estate, recommending an investment in the stock of a corporation with which both Robert and the decedent were connected, and the latter added to the letter a note stating his belief that all its statements were correct: on the strength of these recommendations, which were made in good faith, the claimant invested in the stock. (б) Afterwards, becoming dissatisfied on learning that the company’s plant was uninsurable, he sent his certificate of stock to the decedent, directing him to sell it and remit the proceeds. The decedent replied, acknowledging its receipt, and adding: “Whether the stock is sold or not, give yourself no uneasiness as to fire or otherwise. I will see that Robert makes you whole.” The company was then insolvent and soon after stopped payment: 2. As the correspondence between the claimant and the decedent in regard to soiling the stock, disclosed no consideration for the promise to see that the claimant was made whole, that promise, whether regarded as a guaranty or as an original undertaking, imposed upon the decedent and his estate no liability to reimburse the claimant for the loss sustained upon the investment.