137 Pa.

Volume 137 — Pennsylvania State Reports

78 opinions

137 Pa. 1Hutchinson v. Snider (1890)
1. Damages for the breach of a contract, for which compensation may be justly claimed and allowed, must he such as may fairly he supposed to have been in the contemplation of the parties when they made their contract, or such as, according to the ordinary course of things, might be expected to follow its violation: Billmeyer v. Wagner, 91 Pa. 92. 2. When three persons agree that each shall drill an oil well on his own land at his own expense, hut that all shall share equally in the production, one of them, who drills on his own land an unproductive well, may not recover from another, who drills no well, damages to be measured by one third of the money expended in the experiment.
137 Pa. 7Boyd v. McCullough (1890)
1. When there is no evidence of fraud, misrepresentation, or concealment on the part of the vendor, the constructive notice which the record of a judgment lien, standing in the line of the vendor’s title, gives to the vendee, is as effective as actual notice: Kuhn’s App., 2 Pa. 264; Stephen’s App., 87 Pa. 202. 2. If the purchase money due and owing from a vendee by articles is sufi ficient to satisfy such an encumbrance, he may so apply it; but if, neg-i lecting so to do, he suffer a sheriff’s sale of the property to take place under the encumbrance, he cannot complain of the loss of what he has paid on the contract. 3. If, at such a sheriff’s sale, the equitable vendee becomes the purchaser, lie will remain liable on his contract for the residue of the purchase money; but his liability to his vendor, after a sale to a stranger, would depend upon whether the purchase money in his hands, due and unpaid, was sufficient to extinguish the encumbrance. 4. When the encumbrance is in excess of the purchase money unpaid, the vendor must remove it before he can enforce the contract otherwise than by ejectment; and if, without having tendered performance of the contract, he suffers his vendee to be evicted under such encumbrance, he cannot collect the residue of the purchase money. 5. The vendee in such case, however, cannot recover back what he has paid on the contract with the record open before him, if he himself was in default at the time of the sheriff’s sale, as no implication of a promise to re-pay the money could arise, except upon full compliance with the contract. 6. When the time for payment of the purchase money and for delivery of the deed has passed without performance, or tender thereof, by either party, the time for performance becomes indefinite, and whichever of the- \ parties first desires to enforce the contract, he must perform or offer to-\perform his part of it, as a condition precedent. 7. In the absence of fraud, and as a general rule, when a contract contains concurrent conditions, or mutual and dependent covenants, an offer of performance or readiness to perform, by one party, must be shown, before he can charge the other with a breach; and without a breach there-can be no ground for rescission of the contract.
137 Pa. 18Dalton v. Upper Tyrone Tp. (1890)
APPEAL BY PLAINTIEE EROM THE COURT OE COMMON PLEAS OE EAYETTB COUNTY. No. 398 January Term 1890, Sup. Ct.; court below, No. 328 June Term 1888, C. P. On May 29, 1888, John Dalton brought trespass against Upper Tyrone township, to recover damages for injuries sustained by falling over the bank of Jacob’s creek from a public highway. Issue. At the trial on May 20, 1890, it was shown by the plaintiff that, early on the morning of October 11, 1885, before daylight, he was going to his work along a highway known as Brown street, leading to a bridge over Jacob’s creek. The road or street approached the bridge nearly at right angles and was on a level therewith. The bridge was about sixteen feet wide, and rested on abutments from the water’s edge about twelve feet high. The plaintiff, mistaken in the direction he was walking, missed the bridge, walked over the abutment and received severe injuries. It was claimed by the plaintiff that the approach to the bridge on the Fayette side, where the accident occurred, was wider than the bridge, _and that it was negligence in the defendant not to have the abutments guarded. At the close of the testimony, the plaintiff requested the court to charge, inter alia: 1. That if the jury find that the place where the accident occurred was part of the public highway, and that such part was so dangerous, by reason of its proximity to a precipice, that common prudence required extra precaution in order to secure safety to travelers, the township was bound to use such precaution, and the omission to do so was negligence.1 The court, Ewing, J., made no specific answer to the point, but instructed the jury in part as follows: According to the evidence, before the Mt. Pleasant railroad was constructed there used to be a road running up on the Fayette county side of Jacob’s creek, which was occupied by that railroad company in their construction of the road. There was leading down to that road, and at the point where Brown street now strikes the Baltimore & Ohio railroad, which now controls the Mt. Pleasant & Broadford railroad, a country road, which was subsequently vacated and supplied by what is now called Brown street; and, according to the records of the location of that road, or the street that has been called Brown street, it ended at a post in the line of this old road that used to run up along Jacob’s creek, and was taken by the Baltimore & Ohio or the Mt. Pleasant & Broadford Railroad Company, when its road was constructed. So far as it extended, then, from a point back in the country to this point in the line of the old road, it was ordered to be opened thirty-three feet wide. From there to the Fayette county end of this bridge, according to the witnesses, is a distance of thirty, forty or fifty feet, — I believe they varied in their testimony as to the exact distance,— in which distance the traveled* road crosses the Baltimore & Ohio or Mt. Pleasant & Broadford tracks to get to that bridge. Because of their having taken that old road that ran up along the creek, it appears in the testimony of Mr. Tinstman, who was at that time the president of the Mt. Pleasant & Broad-ford Railroad company, they built this bridge across Jacob’s creek, the original structure, to furnish parties who used to go up this old road which they had taken, and across the bridge at the old mill or distillery, a way to cross Jacob’s creek to the Westmoreland county side, and allowed the public to cross their tracks at that place and go on to this bridge and across the creek. Now it may well be, that, having supplied a way for getting across that creek there, by the construction of this bridge, then the township became liable for the maintenance of that road, and possibly also, for the purposes of this case, they are absolutely liable for the care of that bridge; at least Upper Tyrone township, and the corresponding township on the Westmoreland county side. [But there is no evidence in the case to show that so far as the roadway from the end of Brown street to the Fayette county end of the bridge was concerned, it was of any greater width than the bridge itself.] 8 The contention of the plaintiff in this case is, that that roadway must be assumed to be the same width as Brown street which terminates at that place in the old road. But that is an assumption we cannot make, and there is no evidence that it was of less width. And, proceeding on that assumption, [the plaintiff claims that it was the duty of the township to see that the roadway was constructed of the same width as Brown street, or else that guards should be placed on each side of the bridge so as to make a barrier there, including the bridge, of the width of Brown street, thirty-three feet; and that if the plaintiff, in going along there on this dark morning, kept within the lines of Brown street, extended to the creek there, and in doing so missed this bridge by no fault of his own, and received these injuries, the township is liable. Well, in the absence of any testimony going to show that the distance between the end of Brown street and the Fayette county end of the bridge is of any greater width than the bridge itself, I cannot so instruct you.] 3 And, in addition to that, [according to the decisions of the Supreme Court, it is not incumbent upon the township, admitting its liability in other respects, to maintain any barriers at the side of the bridge there, to take up any additional width, even if the road had been admitted and proven to be thirty-three feet wide at that point.] 4 But they have only to maintain a sufficient roadway there, to enable people to travel over the creek, that is reasonably safe. I don’t think there is any liability on the part of the township in this case, however much we may deplore the injury suffered by the plaintiff here and consequent therefrom. [Consequently, I instruct you to render a verdict for the defendant.] 5 The jury returned a verdict for the defendant. Judgment having been entered, the plaintiff took this appeal, specifying that the court erred: 1. In refusing the plaintiff’s point.1 2-5. In the portions of the charge embraced in [ ] 8 to 5 Counsel cited: Newlin Tp. v. Davis, 77 Pa. 817; Mill Creek Tp. v. Perry, 10 Cent. R. 299; Hey v. Philadelphia, 81 Pa. 44 ; Burrell Tp. v. Uncapher, 117 Pa. 363 ; Plymouth Tp. v. Graver, 125 Pa. 24; Jackson Tp. v. Wagner, 127 Pa. 184; Lower Macungie Tp. v. Merkhoffer, 71 Pa. 276. Counsel cited: Scranton City v. Hill, 102 Pa. 381; South Easton Bor. v. Reinhart, 13 W. N. 389 ; Monongahela City v. Fischer, 111 Pa. 9.
137 Pa. 23Patterson v. Dushane (1890)
1. When the question is, whether certain government bonds belonged to the estate of a decedent, an interested witness may testify that after the decedent’s death he found them on deposit in a bank in her name. That this fact would be inferential proof that they were so deposited in the decedent’s lifetime, does not render the witness’s testimony incompetent : Rothroek v. Gallaher, 91 Pa. 108. 2. When the deposition of a deceased witness has been read in evidence, it is competent, for the purpose of affecting its credibility, to show that the witness, after the deposition was taken, declared that he had made a certain mistake in his testimony; though, if he were living, he should first be recalled and asked whether he made such declaration. 3. But, where the declaration of the deposing witness was merely that he had made a mistake in his testimony, without saying what the mistake was, then, even if proof of his declaration were inadmissible, the declaration would be of insignificant consequence, and its admission not error. 4. A distributee, who, with knowledge that certain securities have been inventoried as part of a decedent’s estate and accounted for in the executor’s settlement, confirmed by the Orphans’ Court, accepts, in accordance with a decree of distribution, a share of a fund made up in part of their proceeds, is estopped from afterwards asserting that they were his own private property.
137 Pa. 35Tuit v. Smith (1890)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF FAYETTE COUNTY. No. 87 July Term 1890, Sup. Ct.; court below, No. 137 June Term 1886, C. P. On April 5,1886, Belford J. Tuit brought ejectment against Laura E. Smith, for a certain house and lot in New Salem. • The defendant pleaded not guilty. At the trial on October 8, 1888, there was a verdict for the plaintiff. Judgment having been entered, on writ of error to No. 374 January Term 1889, Sup. Ct., the judgment was reversed and a new venire awarded: Smith v. Tuit, 127 Pa. 341. At a second trial, on December 13,1889, the plaintiff put in evidence a deed to himself for the property in dispute from Mrs. Sarah E. Smith, under whom the defendant also claimed, which was dated August 29,1885; also an article of agreement between himself and Mrs. Smith, with a bond given in pursuance thereof, and testified that the deed was executed and delivered and the bond was given under said agreement, whereby he undertook to take Mrs. Smith and care for her the remainder of her life, in consideration of said conveyance. The defendant put in evidence a paper purporting to be the will of Sarah E. Smith, dated October 31, 1884, portions of which were as follows: “Second. I will and bequeath to Laura E. Smith all my real and personal property of whatsoever kind or nature, including house and lot that I purchased of William M. J ones in town of New Salem, adjoining lands of Jacob Allamon, ■Caleb Antram and others. I desire that the above described property, after the settlement of all my just debts, heretofore mentioned, shall be for his kindness and care toward me in sickness and in health, in watchfulness and care during all my natural life, and at my decease the aforesaid property shall belong to the said Laura E. Smith, his heirs or assigns, with all rights, liberties and hereditaments, forever and forever. “ Third. It is my will and desire that the said Laura E. Smith have possession of my house on the first day of November, 1884, and he take me with him, and that he take care of me as one of his own family.” This will is given fully in the report of the former trial. • The defendant then testified at length and adduced the testimony of other witnesses as to the way in which the execution of the will had been brought about, and as to the manner in which he had taken care of Mrs. Smith. He testified also that he had gone into possession of the property under the will; that Mrs. Smith had lived in the house with him until near September, 1885, when she went .away, without having complained about his treatment of her. Among the witnesses called by the plaintiff, in rebuttal, was Mrs. Sarah E. Smith, portions of whose testimony were as follows : “ Q. Well, you went to live with Smith there, and he said he gave you your choice of rooms ? A. Not then, he didn’t. Q. But when you came to move ? A. Well, he spoke to me once about my choice of rooms, but I proposed to take the room myself. Q. Who fitted it up ? A. Well, I suppose her and him. Q. Well, whose furniture was in the room? A. Why, mine; and she had a couple pieces of carpet; my carpet wouldn’t fit. Q. What else ? A. And a big chair, I think; well, after while I can’t tell what — I don’t know what — my carpet, or the chairs— perhaps the carpet wasn’t gone, but the chairs were taken up stairs. Q. They had taken what chairs up stairs ? A. Why, their own. Q. How long was that after you had moved there ? A. Why it wasn’t very long. Q. What kind of chairs did you have in the room ? A. Why, a couple for me. Q. Who took them out? A. I can’t tell you. Q. Well, did you ever have any conversation with theiii about it, or either of them. A. No, sir; I don’t know that we had any particular conversation. Q. Well, do you know when they took those chairs out? A. And put them up stairs; and I said to Jennie, what did you take the chairs out for ? Well, Q. What did she say ? A. I don’t know what she said, whether she said anything; she was no wajrs talkative, nor I wasn’t; when I had nothing to talk about; and so — well, she set there — it was after breakfast, I think, she set there — now here’s the important point, she set there with her elbow on the side of the chair or table, I can’t tell you which, but this way, and I want you to understand, and she said to me, “ I want you to understand that I am boss here,” she said. Q. She said that she wanted you to understand that she was boss there ? A. Well, I didn’t say no; after a bit I repeated it to Laura Smith. Q. You told Laura about it? A. Yes, sir. Q. Whát did he say? A. Well, he spoke an ugly word. Q. Well, what was that? A. Well, I can’t tell you. Q. What kind of a word ? A. Well, kind of a swear; and here — what was I going to say? I was going to say, I am getting forgetful. Well she repeated and said this, — Laura didn’t say, I don’t think he did— Q. Well, what was it? A. Well, she said that there was some wonderful thing going to happen here. Well, I said nothing. I didn’t know what it was even, and just before this she had-cut my shoe, and thinks I, the next thing will be my throat. I just thought of that and that’s what started me to move. As God is my father and judge this is the truth. Q. Well, how was Jennie towards you, was she kind and considerate, did she treat you right? A. Well, she supposed so. She is an ignorant woman, and I suppose she done the best she could; I can’t compare her to anything else. There is some people in this latter day professes to be intelligent, and yet they don’t know their duty to an old person. Q. Well, how did Laura treat you while you were staying there with them ? A. Well; only sometimes he would take a spurt in ugliness; have his bad words you know. He was just middling. He done the best, I suppose, he knew how..... Q. Well now, just state briefly why you left Laura and his wife ? A. Why it was this here cutting of the shoe and the expression that she made. You know I said just a bit ago that she said that “ there is going to be dreadful things here.” Well, thinks I, what in the world — she never explained things very fully, and when she said that, the shoe was cut, and I thought my throat would go next. I am as honest as eternity in that matter.....” Other portions of the witness’s testimony are referred to in the opinion of the Supreme Court. At the close of the testimony, the defendant requested the court to charge the jury : 1. That the plaintiff has shown no facts which would justify Sarah E. Smith in rescinding the contract contained in her will, and therefore he cannot recover.1 The court, Ewing, P. J., did not answer the defendant’s point specifically, but charged the jury in part as follows: [The sole question for you to determine is whether or not Laura Smith performed his part of the agreement under that contract. If he did, he is entitled to hold that property as against the plaintiff in this action, or Sarah Smith, or anybody claiming under her. If he did not, if he failed substantially to perform that contract, then he is not entitled to hold possession of that property, and the plaintiff will be entitled to recover. So you will understand, then, that your inquiry is directed to the ascertainment of the fact, whether or not the defendant in this action, Laura E. Smith, has substantially'performed the contract implied and in part expressed in the paper dated October, 1884, and signed by Sarah Smith, by which she provides for giving him this property at her death, and the possession of it a few days later, at which time he did take possession.] 3 His part of that contract seems to have been to take her with him and to care for and maintain her, and treat her kindly and considerately the rest of her natural life. That, he says he has done. She went with him when he took possession of this property, and selected her rooms in the house ; they were fitted up for her partly with her own furniture which she had had before, and partly with furniture which the defendant furnished, and she remained there with him until the following September, a period of some ten months, and then she left. Now, even if she did leave, if it was without any sufficient reason, that would not enable her, or those claiming under her, to recover possession of this property.....[ If, on the other hand, he failed in the substantial performance of his part of that agreement, did not, during the time she was with him, according to their circumstances and her needs and the conditions of the parties, take care of and maintain her, why then the plaintiff would be entitled to your verdict.] 8 The jury returned a verdict for the plaintiff. A rule for a new trial having been discharged, judgment was entered, when the defendant took this appeal, specifying that the court erred: 1. In not affirming the defendant’s point.1 2. In the portions of the charge embraced in [ ] 8 8 Counsel cited: Stephen’s App., 87 Pa. 202; Delamater’s Est., 1 Wh. 362; Yard v. Patton, 13 Pa. 278; Smethurst v. Woolston, 5 W. & S. 106; Taylor v. Saurman, 110 Pa. 3; Erwin v. Myers, 46 Pa. 105. Counsel cited: Cook v. Trimble, 9 W. 15; Emery v. De-Cfolier, 117 Pa. 161; Galland v. Schroeder, 21 W. N. 103.
137 Pa. 42Robb v. Connellsville Bor. (1890)
1. The reasonable care which the law exacts of all persons, in whatever they do involving the risk of injury, requires travelers on the footways of public streets to look where they are going; especially, when they are about to step upon the crossing of an intersecting street, where they are bound to expect the continuity if not the level of the pavement to be broken. . A plaintiff, suing for an injury received by falling over the footway of a street crossing, raised six inches above the level of the footway upon which she was walking, should be nonsuited for contributory negligence, when it appears from her own testimony that she could have seen the obstruction had she looked where she was going, and that her fall resulted from a failure so to look.
137 Pa. 47Miller v. Miller (1890)
(а) The plaintiff in a judgment assigned a portion of it, entered satisfaction as to the balance, and afterward became the owner of the land bound by the lien thereof. The lien of the judgment having subsequently expired, he signed a paper upon which judgment.of revival was entered against him by the prothonotary. (б) The paper was a blank form filled up, but it was not signed by the judgment defendant, and, against the latter, judgment was subsequently taken upon two nihils. Execution having issued, a rule was granted to show cause why the judgment against the plaintiff should not be stricken off: 1. The judgment was a nullity in law because not authorized by the agreement. 2. The signature of the judgment plaintiff to the paper filed was consistent with an intention on his part to charge his land by the revival, and, unexplained, a court exercising equitable jurisdiction might be justified in treating the execution of the paper as having been with that intent. 8. But, an averment of the petition, that “ there was no intention on the part of the petitioner to confess a judgment against himself,” being undenied by the answer, the paper as filed was insufficient to authorize the judgment to be entered against the petitioner, and it was properly stricken off.
137 Pa. 53Hackney v. Tracy (1890)
APPEAL BY DEPENDANTS PROM THE COURT OP COMMON PLEAS OP PAYETTE COUNTY. No. 41 July Term 1890, Sup. Ct.; court below, No. 378 June Term 1889, C. P. On May 10, 1889, Hiram H. Hackney and John Hackney brought ejectment against William Tracy and others, for fifty-three acres of land in Menallen township. The defendants’ plea was not guilty. At the trial on March 19,1890, it was shown that Jacob Crabb died on March 25,1864, seised of a tract of one hundred and fifty acres which embraced the land in controversy, and leaving a .will, dated August 12, 1854, by which he disposed of his real estate in the following manner: “ 4. I give and bequeath to my beloved wife Nancy, that part of my farm on which I reside, supposed to contain about seventy-five acres, to have the use of it for her support during her natural life. “5. And at the decease of my wife Nancy, I give and bequeath the same to my daughter Elizabeth by her paying to my daughter Mary, intermarried with C. V. Tracy, one half the appraised value; but in case my daughter Elizabeth should die without issue, then in that case all her interest that she might or could have in the same to descend to my daughter Mary.” “7. I give and devise to Warwick Miller that part of my farm on which my son William resides, supposed to contain seventy-five acres, in trust for the use of my son William during his natural life, and at his death to be equally divided among his children if he should have any; but in case he should leave no heirs, then in that case to be equally divided between daughters Elizabeth and Mary, but if my daughter Elizabeth die without heirs as above stated, then her interest to descend to my daughter Mary, her heirs and assigns forever.” .... The land sued for in this case was a part of the seventy-five acres devised to Elizabeth. The testator’s wife, Nancy, died during his lifetime. Soon after his own death, his will having been admitted to probate, proceedings were had in the Orphans’ Court for the appraisement of the land devised to Elizabeth, who thereupon paid to Mary Tracy the one half of its appraised value. In 1865, Elizabeth sold and conveyed her seventy-five acres to her brother William Crabb by a deed in fee-simple, and by subsequent conveyances the title of William Crabb thereto became vested in the plaintiffs. Elizabeth died in 1872 at the age of sixty-six years, without issue, never having been married. At the date of the will, William was sixty-one years of age, married, but childless; and Mary had six children. Mary died in 1863, leaving said children to survive her. One of them died afterwards, and the remaining five were defendants in this action and claimed title to the land in dispute as her heirs. The plaintiffs were in possession of the remaining part of the seventy-five acres devised to Elizabeth. At the close of the testimony the court, Ewing, J., instructed the jury to render a verdict for the plaintiffs for the land described in the writ. A verdict having been returned as directed, the defendants took this appeal assigning the instruction to find for the plaintiffs, for error. 1. The act of April 27,1855, P. L. 868, practically makes the statute De Donis inoperative, and remits us to the common law as it existed prior thereto, but it has no effect upon executory devises: Nicholson v. Bettle, 57 Pa. 384; Price v. Taylor, 28 Pa. 95. This will did not become operative until after the act of 1855 went into effect, and in this respect the case differs from those relied on by the plaintiffs. The devise to Elizabeth was of a base or conditional fee, and created a technical limitation, because, upon failure of the condition that Elizabeth should leave issue, the estate was given over to Mary: 2 Bl. Com., 154; Roe v. Jeffery, 7 Term R. 585. The courts favor such a construction of wills as points to a definite failure of issue, and throw weight on small matters to give this effect. 2. A limitation over, on the death of the first taker without issue, was held to be an executory devise, on a definite failure of issue, in the following cases: Rapp v. Rapp, 6 Pa. 45; Johnson v. Currin, 10 Pa. 498; Curran v. McMeen, 55 Pa. 487; Toman v. Dunlop, 18 Pa. 72; Nicholson v. Bettle, 57 Pa. 384; Coates Street, 2 Ash. 12; Mifflin v. Neal, 6 S. & R. 460; Hauer v. Sheetz, 2 Binn. 532; Eby v. Eby, 5 Pa. 461. In the following cases the context was called in to determine the question, and the interpretation was in the same way: Langley v. Heald, 7 W. & S. 96; Scott v. Price, 2 S. & R. 59; Berg v. Anderson, 72 Pa. 87; Hill v. Hill, 74 Pa. 173 ; Eichelberger v. Barnetz, 17 S. & R. 293; Kelso v. Dickey, 7 W. & S. 279. The plaintiffs can recover in this case only if Elizabeth took an estate-tail and the limitation over to Mary is void for remoteness. 3. That Elizabeth’s estate cannot be an enlarged fee-tail is manifest, because fees-tail are by virtue of the statute De Donis: 2 Bl. Com., 112; and that statute is not in force in Pennsylvania. The general intent of the testator was that his whole estate should descend to Mary and her heirs, in case William and Elizabeth died without children living at their death. The word “ then,” in the devise over, is an adverb of time and imports this, referring to the time of Elizabeth’s death: Langley v. Heald, 7 W. & S. 96; Eby v. Eby, 5 Pa. 463; Snyder’s App.f 95 Pa. 183; Turner v. Fowler, 10 W. 325 ; Wilkensonv. South, 7 Term R. 555, 589. The words issue and heirs are evidently used in the sense of children, as clearly appears from the devise to William, and they must be so construed when this is necessary to carry out the testator’s intent: Eahrney v. Holsinger, 65 Pa. 388; Berg v. Anderson, 72 Pa. 87. Mary’s children were in being at the testator’s death, and the limitation over cannot be held too remote: Rapp v. Rapp, 6 Pa. 45;. Scott v. Price, 2 S. & R. 59; Deihl v. King, 6 S. & R. 33; Mifflin v. Neal, 6 S. & R. 460: Criley v. Chamberlain, 30 Pa. 164 ; Berg v. Anderson, supra. 1. The fact that the devise over is to a person living at the date of the will, is not of itself sufficient to show that the testator contemplated a definite failure of issue: Eichelberger v. Barnitz, 9 W. 447; Lapsley v. Lapsley, 9 Pa. 130; Allen v. Henderson, 49 Pa. 333; Cochran v. Cochran, 127 Pa. 486. In each of these cases, the devise over was1 to a person in existence. Nor is it true that the courts incline to a definite failure of issué ; exactly the contrary is the case. A provision for a, definite failure of issue makes a defeasible, uncertain estate, and the law leans in favor of an absolute rather than a defeasible estate : Smith’s App., 23 Pa. 11. The act of April 27, 1855, P. L. 368, rendered the statute De Donis practically inoperative, but did not change the meaning of words or the interpretation of the law. We must still determine what estate the devisee would take indepeudent of the act, and if that estate be a fee-tail, the act converts it into a fee-simple. In construing devises, the Rule in Shelley’s Case is just as applicable today as before the act of 1855 : Carroll v. Burns, 108 Pa. 394. 2. The words heirs of the body, are strictly words of limitation, and, when uncontrolled by the context, create an estate-tail. The word issue, means prima facie the same thing: Kleppner v. Laverty, 70 Pa. 72. The defendants claim that the testator intended to give Elizabeth a conditional fee. We fail to find any such intention expressed in the will. He evidently intended to make his two daughters equal, and certainly did not intend that Elizabeth should pay half the value of the farm to Mary, and that then it should go to Mary irrespective of the remoteness of Elizabeth’s issue. What he intended was to prevent any part of the land devised to Elizabeth from going to William. In the clause disposing of William’s part of the farm, the words “ die without heirs,” applied to Elizabeth, mean issue, as Elizabeth could not die without heirs so long as Mary or her children should be living: Covert v. Robinson, 46 Pa. 274; Moody v. Snell, 81 Pa. 359. Applying the Rule in Shelley’s Case to this will, Elizabeth takes an estate-tail. 3. Unless some specific reason for doing otherwise can be given, the Rule in Shelley’s Case must be applied: Bender v. Fleurie, 2 Gr. 346; Carroll v. Burns, 108 Pa. 394; Kleppner v. Laverty, 70 Pa. 72; Lawrence v. Lawrence, 105 Pa. 341. The cases in Pennsylvania on this subject are very numerous, and, when examined carefully, sustain the ruling of the court below: Gause v. Wiley, 4 S. & R. 509; Eichelberger v. Barnitz, 9 W. 447; Clark v. Baker, 3 S. & R. 470; Lapsley v. Lapsley, 9 Pa. 130; Vaughan v. Dickes, 20 Pa. 509; Matlack v. Roberts, 54 Pa. 148; Lawrence v. Lawrence, 105 Pa. 335; Stone v. McMullen, 10 W. N. 541; Carroll v. Burns, 108 Pa. 386; Bassett v. Hawk, 118 Pa. 94; Reinoehl v. Shirk, 119 Pa. 108; Cochran v. Cochran, 127 Pa. 486. The word “ then ” does not, as contended b3»- the defendants, refer to the time of Elizabeth’s death, but refers to the fact of her dying without issue. The same word was used, in the same way, in Reinoehl v. Shirk and Lawrence v. Lawrence, supra, and it was not regarded as affecting the construction of the devise, it being held, in each case, that the testator meant an indefinite failure of issue.
137 Pa. 61Wanner v. Landis (1890)
No. 125 January Term 1890, Sup. Ct.; court below, No. 46 August Term 1888, C. P. On July 6, 1888, Sarah Wanner brought assumpsit against Benjamin Landis and Martin Shaeffer. Issue.
137 Pa. 65Keller v. Swartz (1890)
1. A decree, upon a bill for a settlement of partnership accounts, adjudicating the fact of partnership, and ordering that the defendant render an account before a master of all bis partnership transactions with the plaintiff, is interlocutory only, and no appeal will lie therefrom until a final decree upon the accounting. 2. An agreement by two persons to contribute equally to a common fund to be used by a third person in speculating in stocks for their joint benefit, does not make them technical partners inter sese, where there was no arrangement between them that they should assume that relation: Per Mr. Justice Green. 3. If two persons, joined in a stock speculation, agree, with no unsettled accounts between them, that one may sell his half of the stock at his discretion, and in pursuance thereof the latter proceeds to sell Ms share, while the other holds his for a rise, neither is liable to an account to the other thereafter as in a partnership. 4. To render such an agreement effective, it is not essential that stock held by the broker of the parties, as security for advances made for its purchase, be at once withdrawn and divided; nor will the fact, that the broker continues to keep on his books an account against the parties as partners, be evidence that the association continues as between themselves.
137 Pa. 82Schive v. Fausold (1890)
(ia) An action of ejectment was brought in the right of a wife to recover land which had been sold at sheriff’s sale as the property of her husband, the plaintiff claiming that, though the legal title was in her husband at the time of the sale, it was held by him under a resulting trust for her, her separate estate having supplied the purchase money: 1. A verdict and judgment in her favor for an undivided part of the land, was the equivalent of a verdict and judgment against her for the other parts; and, the action being upon an equitable title, to wit, the resulting trust alleged, it was a bar to a subsequent action of ejectment to recover the other undivided parts of the same land: Peterman v. Iiuling, 31 Pa. 432.
137 Pa. 85Dunbar v. Fleisher (1890)
1. When an obligation, signed by a surety, is given in pursuance of k provision therefor in a contract between his principals and the obligee, and it expressly refers to such contract, it should be construed in the light which the principal contract throws upon its purpose and intended scope. (a) A contractor for the erection of a county bridge sub-let the mason work by a written contract providing that he should pay for two thirds thereof when that quantity should be done, and if he should then give security for the price of the remainder, the same should be paid when Ihe work was fully completed. (5) The agreement provided further, as an alternative, that the subcontractors might give security “for the money for the balance of the work to be done,” in which case the contractor should pay for said remaining one third of the work in advance of its commencement by the sub-contractors. (c) After the sub-contractors had done two thirds of the work, and had been paid therefor, they received from the contractor an order on the county commissioners for the price of the remaining one third, and gave to him a paper, executed by a surety, reciting said order and engaging for “ the faithful performance of said mason work to said bridge as per contract: 2. Construed in the light of the principal contract, the obligation of the surety did not embrace any liability for defects in the two thirds of the work already done by his principals, but was simply an engagement, in consideration of an advance payment for the remaining one third, that they should do the work so paid for. 3. Wherefore, the order on the county commissioners having been refused payment, although accepted by the sub-contractors on the assurance of the contractor that it would be promptly paid, the consideration of the surety’s undertaking wholly failed, and he was not liable even for a failure of the sub-contractors to do the rest of the work; nor were they bound to perform it. i. The fact that payment of the order was refused because there were defects in the work already done by the sub-contractors, did not affect the liability of either their surety or themselves as to the last one third of the work: by the terms of their contract they were not bound to do that work until its price should be paid or secured to them.
137 Pa. 92Readdy v. Bor. of Shamokin (1890)
No. 169 January Term 1890, Sup. Ct.; court below, No. 19 December Term 1886, C. P. On September 18, 1886, John Readdy and Mary, his wife, in right of said wife, brought case against the borough of Shamokin, to recover damages for personal injuries received by said wife in falling upon a defective pavement.
137 Pa. 98Readdy v. Bor. of Shamokin (1890)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP NORTHUMBERLAND COUNTY. No. 47 July Term 1890, Sup. Ct.; court below, No. 20 December Term 1886, C. P. On September 8,1886, John Readdy brought case against the borough of Shamokin to recover damages for injuries received by his wife, Mary Readdy, by falling upon a defective pavement. Issue. At the trial on March 17,1890, facts were shown sufficiently appearing in the report of Readdy v. Shamokin Bor., ante p. 92, to which reference is made. At the close of the testimony the court, Rockefeller:, P. J., charged the jury in part as follows: [It is the duty of borough authorities to keep the streets and sidewalks of the borough in repair, and in a reasonably safe condition for public travel. The sidewalks are intended for people to travel upon, on foot, and it is their duty to keep them in a reasonably safe condition for such travel. If they neglect their duty, in this respect; if they allow the sidewalks to be out of repair and to remain so, and a person traveling along the sidewalk is injured in consequence of a defect, without any contributing negligence on the part of the person walking along the sidewalk, the borough is liable to pay damages for injuries which are inflicted in consequence of their negligence. It is claimed here, that on the east side of Shamokin street, on a line between the lands of Mrs. Robinson and Mr. Weir, there was an offset in the walk; that the walk in front of Mrs. Robinson’s property was considerably higher than the walk in front of Mr. Wier’s; that the break was, one of the witnesses puts it, as high as from twelve to fifteen inches, and the borough surveyor puts it at nine inches and a fraction or ten inches and a fraction, I forget which. This evidence is submitted to you, and it is for you to say whether this constituted a dangerous sidewalk; whether the sidewalk at this point was in such a defective condition as to be dangerous, so that it was negligence on the part of the borough authorities to permit it to remain in that condition.] 3..... On the part of the defendant we are asked to say to you [inter alia] : 2. That the plaintiff can recover only, if at all, for the loss of the services, etc., of his wife, up to the bringing of this suit, and such other expenses as the plaintiff has shown that he incurred by reason of the accident. Answer: This point we do not affirm. We have already said to you that the plaintiff is entitled to recover for any temporary or permanent loss of earning power of the wife, and he is also entitled to recover for any expenses he has been put to for taking care of his wife and for medical attendance.8 —The jury returned a verdict in favor of the plaintiff for $962. A rule for a new trial having been discharged, judgment was entered, when the defendant took this appeal, specifying that the court erred: 1. In not directing the jury to find a verdict for the defendant, under all the evidence in the case. 2. In the answer to the defendant’s point.* 3. In the part of the charge embraced in [ ] 3 4-9. In the admission of certain offers of testimony by plaintiff, the assignments not setting out the evidence admitted under the offers, or showing that exceptions were sealed thereto.
137 Pa. 101Est. of Wormley (1890)
APPEAL BY MARGARET WORMLEY PROM THE ORPHANS’ COURT OE PERRY COUNTY. No. 877 January Term 1890, Sup. Ct.; court below, number and term not given.
137 Pa. 112Estate of Dull (1890)
137 Pa. 116Estate of Dull (1890)
137 Pa. 122Long v. Township of Milford (1890)
No. 68 July Term 1890, Sup. Ct.; court below, No. 101 December Term 1887, C. P. On November 14, 1887, John F. G. Long brought trespass against the township of Milford. Issue. At the trial on April 27,1888, it was made to appear that on July 12,1887, the plaintiff was driving with a blind horse along a highway in defendant township, at a point where there was a steep bank at the side of the road.
137 Pa. 128Greenough v. Small (1890)
No. 371 January Term 1890, Sup. Ct.; 'court below, No. 215 December Term 1886, C. P. On November 16,1886, William I. Greenough brought ejectment against Bruce Small and Susan E., his wife, in right of said wife; Clarence Hawthorne and Rose, his wife, in right of said wife, P. C. Oberdoff, Jacob Youngman, and others who were tenants, to recover the undivided seven thirty-sixths part of two adjoining lots of ground, being lot No. Ill and part of lot No. 112, in Sunbury. Issue.
137 Pa. 132Greenough v. Small (1890)
No. 93 July Term 1890, Sup. Ct.; court below, No. 217 December Term 1886, C. P. On August 16, 1886, William I. Greenougb brought ejectment against “ Bruce Small and Susan E. Small, bis wife, in right of said Susan E.,” to recover the undivided one sixth of a parcel of land situate in Upper Augusta township. Issue.
137 Pa. 138Commonwealth v. Crompton (1890)
1. Proceedings to escheat the estate of a decedent who died intestate, without heirs or any known kindred, are regulated by the statutes, and these statutes permit any person, in whose hands or possession the goods and chattels are found, to traverse the inquisition in the Court of Common Pleas. 2. Even though, the traverser being an administrator of the decedent and claiming to hold the goods and chattels in dispute in his own right under an alleged gift, an effort was made to surcharge him with them upon a pending proceeding in the Orphans’ Court, the right of the traverser and the jurisdiction of the Common Pleas cannot be doubted. 3. And, that the administrator noted upon the inventory filed and in the account presented that the disputed goods specified were in his hands, but held in his own right as a gift from the decedent, will not estop him from asserting his claim upon a traverse of the inquisition in the Court of Common Pleas. 4. Where it is apparent from the evidence that an absolute and present gift of non-negotiable securities, e. g., shares of railroad stock, is intended, a gift of them, valid against a volunteer, may be made by delivery to the donee without assignment or indorsement in writing, and without compliance with the forms required by the corporation.
137 Pa. 148Trainor v. Phila. & R. R. (1890)
(a) The plaintiff, a coal-handler, was injured while employed about an appliance for the storage of coal, dangerous and unfamiliar to him, and placed in the charge of a fellow-employee during the temporary absence of the regular foreman, the appliance being supplied by a contractor who was to “ erect and operate it” at his own expense: 1. The question whether the temporary foreman was competent to manage the appliance having been fairly raised by the evidence, and the trial judge having correctly stated who were fellow-servants, error cannot be assigned to the omission of specific instructions as to the relation of the foreman to the plaintiff, where no request for them was made. 2. And after a trial on the merits, it is too late for the defendant then to object that the question whether it had placed a competent man in charge of the work was not raised by the pleadings. Where pleadings would have been amendable of course in the court below, the amendment will be considered as having been made: Jones v. Freyer, 3 W. N. 365; Bolton v. King, 105 Pa. 78. 3. The defendant, knowing the dangerous nature of the appliance and that its servants were employed about it, must have known that their safety required a competent person to supervise the work; and, in the absence of evidence that the plaintiff knew the dangerous character of the appliance, the question whether a competent man was placed in charge of it was for the jury. 4. A master owes to his servant the duty of providing a reasonably safe place in which to work, and reasonably safe appliances with which to do the work; and the delegation of this duty to an agent, or to an independent contractor, will not relieve the master from responsibility for an injury resulting from his neglect.
137 Pa. 160Estate of Corson (1890)
APPEAL BY SABAH YEAKEL, EXRX. OF MARIA CORSON, DECEASED, FROM THE ORPHANS’ COURT OF MONTGOMERY COUNTY. No. 388 January Term 1889, Sup. Ct.; court below, number and term not given. On July 29, 1887, Rev. J. Q. McAtee filed his first account as executor of the will of Mary A. Corson, deceased, showing a balance for distribution of $11,819. To this account, Maria Corson, the mother of the testatrix, filed exceptions, alleging, inter alia, that the accountant should be surcharged with a U. S. bond for $1,000 and 100 shares of North. Pac. R. Co. stock, as of the estate of the' decedent, and that certain U. S. bonds for $2,400, 66 shares of North. Pac. R. Co. stock, and 3£ shares of Jefferson Fire Ins. Co. stock, accounted for as part of the estate of the decedent, were the property of the exceptant and should be transferred to her. Thereupon, the account and the exceptions thereto were referred to Mr. B. E. Chain as auditor. At the hearing before the auditor, the exceptant called Rev. J. Q. McAtee, the accountant, as if on cross-examination. The witness, being shown a folded paper, was asked: Mr. Fox: Q. Do you recognize that paper? Is that your handwriting on the back of it ? A. I think that is my handwriting, taken at the time we appraised John Lentz’s estate. I was one of the appraisers, with Levi Streeper. Q. You made it in my office, did you not? A. I cannot swear to that. Mr. Hunsicker: Q. Which part do you mean is in your writing ? A. The lead pencil only. I cannot swear when I made it. Q. On the back of the paper ? A. The back of the paper is my writing, but I cannot tell where I made it. Mr. Fox: Q. Try to recollect if you did not make it in my office on my table. A. I cannot recollect it.* At a subsequent meeting, the testimony in behalf of the accountant was taken, when the accountant was recalled and his counsel proposed to “ prove by this witness things that transpired in the lifetime of Mary Ann Corson, as well as things that have transpired since. ” Being objected to, the auditor admitted the offer and noted an exception “ both to the competency of the witness and as to the testimony.” The accountant was then examined at length, as to matters occurring in the lifetime of his decedent. The accountant’s wife was also examined, generally, in his behalf. In his report, the auditor found from the testimony submitted including that of the accountant, that Mary A. Corson, the decedent, died on June 24, 1886, aged about sixty-three years. She was the daughter and only child of Maria Corson, who was aged about ninety years, and blind. John Lentz, an uncle of Mary A. Corson, had died in 1884, having bequeathed and devised to her all his estate, inventoried at $8,429.36, including 120 shares of North. Pac. R. Co. stock, 3^ shares of Jefferson Fire Ins. Co. stock, and $1,050 in U. S. bonds. Mary A. Corson was made the executrix of the will of her uncle, and received letters testamentary thereon on March 5, 1884. She was illiterate, and in their business she and her mother relied upon the advice and assistance of Rev. McAtee, the accountant, who was the clergyman in charge of the church to which she belonged. In September, 1884, Mr. McAtee aided to have the 120 shares of railroad stock transferred to Miss Corson, tie had advanced to her money for certain purposes, and after-wards accompanied her to Philadelphia, “ and at the house of Drexel & Co., on January 5, 1885,” as reported by the auditor, “ she sold and he purchased of her, at the then market rates, a $1,000 U. S. bond, she paying him the amounts so loaned her. This amount had been loaned her in two sums, one of $550, and the other of $375.” On January 12, 1885, Miss Corson, in company with Mr. McAtee, went to the Guarantee Trust Co. in Philadelphia, where she kept her securities, and “ she transferred 100 shares of the preferred stock of the North. Pac. R. Co. to Mr. McAtee,” as reported by the auditor, “ at the same time declaring that it was so transferred because he had been a friend both to her and her mother, as compensation for his services. The gift of this large portion of her personal estate was made with the knowledge of and approbation of her mother, Maria Corson, and without solicitation on his part.....Shortly after this, McAtee, in February, 1886, sold the 100 shares of North. Pac. R. Co. stock, so as aforesaid transferred to him, at Drexel & Co.’s office in Philadelphia, for $3,775, cash. Of this fact both Maiy and her mother were informed and expressed their approval thereof.” On January 14,1885, Mary A. Corson and Maria Corson, her mother, each executed a will. About April 14, 1885, Maria Corson transferred to Mary Ann Corson, $2,400 U. S. bonds, which had been her own property. These bonds were registered and new certificates therefor were issued to Miss Corson. And in January, 1886, Mrs. Corson transferred to her daughter 3]- shares of Jefferson Fire Ins. Co. stock, and at a later date 66 shares of North. Pac. R. Co. stock. The auditor found the circumstances under which each of these transfers were made. The wills of Mary A. Corson and her mother, before referred to, were executed in the full belief and expectation that Miss Corson would survive her mother, but on June 24, 1886, as stated, Mary A. Corson died, leaving a later will executed by herself on February 19, 1886, wherein Rev. McAtee was made a legatee of $1,200 and also the executor. This last will was admitted to probate on July 1,1886, and on July 19, 1886, Maria Corson entered an appeal from the decree of the register admitting said will to probate, but after a protracted contest the will was established. Mr. McAtee, as executor of the will, on July 22, 1886, filed an inventory which included the $2,400 U. S. bonds, the 66 shares of railroad stock, and the 3¿- shares of ' he insurance company stock. Upon the subject of the exceptions relating to the $2,400 U. S. bonds, the 66 shares of railroad stock, and the insurance stock, the auditor reported as follows: It is in evidence that a bill in equity is pending, in which said Maria Corson is plaintiff and in which it is sought to cancel these transfers. It is submitted that by this bill the plaintiff has sought the proper forum in which to accomplish the end desired. If these bonds and stocks belong to the estate of Mary Ann Corson, then they must be disposed of as her will directs. If, on the contrary, they belong to Maria Corson, then they do not compose Mary Ann Corson’s estate and the Orphans’ Court has no jurisdiction over them. Much testimony was taken in regard to this ownership, but, the auditor believing that in this proceeding the court has no jurisdiction, he refrains from making any report relating to said ownership, and from expressing any opinion upon that question..... —As to the exceptions relating to the gift of the 100 shares of North. Pac. R. Co. stock, the auditor, considering Hunter v. Atkins, 10 Eng. Ch. 135 ; Huguenin v. Baseley, 14 Yes. 273 (2 Lead. C. in Eq. 1156) ; Greenfield’s Est., 14 Pa. 489; Darlington’s App., 86 Pa. 512; Cuthbertson’s App., 97 Pa. 163; Wilson’s App., 99 Pa. 545; Miskey’s App., 107 Pa. 611, reported as follows: The question now to be considered is, has McAtee shown affirmatively that this gift to him of 100 shares of North. Pac. R. Co. stock was the free and voluntary act of the donor’s mind uninfluenced by him or any one acting for him ? If it was, then it will stand; for, though no power of revocation is reserved in the gift, yet this fact will not affect the question, for it is not the donor who now seeks to annul it, but a volunteer, to wit, the heir of the donor, who stands on the same footing with the donee, who is also a volunteer. Beside, as is remarked by Judge Knox in Greenfield’s Est., 24 Pa. 232, “ There is no rule of law or morals which prevents ministers of the gospel from receiving gifts, large or small, from their parishioners, or from other persons not belonging to their congregations.” Now, in answering this question, the auditor feels that in this case, as in other cases, he must be governed by the weight of the testimony. While Mr. McAtee was the agent of the donor, and also her spiritual adviser, yet we fail to find evidence to show any influence exerted by the donee which affects the validity of the gift. The only evidence upon the subject, having reference to the transfer of this stock is that given by himself, in which he says she wished him to take her to Philadelphia, that she wanted to make him a gift; that he did go with her, and she said she wished to give him some North. Pac. R. Co. stock; that the Guarantee Trust Company was the place to go to; that he introduced her to Mr. Gilroy, the secretary and treasurer of the company; he then left; in his absence, and without his knowledge of the character or amount of the gift, she then made to him a transfer of 100 shares of stock; that on his return, the act had been done and she then handed him the certificate transferred, and told him it was a gift to him for his kindness to her and her mother. This is corroborated by Mr. Gilroy. The fact of this gift was communicated to the mother, the present exceptant, and confirmed by her at the time, or shortly after. That it was referred to and confirmed by the donor and by the present exceptant, is further corroborated by the testimony of Mrs. Hattie Bean, Miss Mary Hallman and by Mrs. McAtee. This testimony is uncontradicted, and would seem to confirm the gift as a free and uninfluenced act of the donor’s mind, and hence I am constrained to report that it cannot now be annulled. I may add that we have no right, in the decision of this question, to consider the propriety of the donor making the gift, nor of the donee, under the circumstances, accepting the same. The auditor having reported a distribution in accordance with his findings of facfiand law, Maria Corson filed exceptions alleging that the auditor erred, inter alia: 2. In not deciding that the gift of the 100 shares of North. Pac. R. Co. stock to Mr. McAtee was void in law. 4. In not finding that the said McAtee should forthwith transfer to exceptant her $2,400 U. S. bonds, her 66 shares North. Pac. R. Co. stock, and her shares Jefferson Fire Ins. Co. stock. 6. In admitting the testimony of Mr. McAtee as to matters which occurred in the lifetime of the decedent. 14. In not surcharging the accountant with the value of the $1,000 bond of the decedent, unaccounted for except by his own illegal testimony. Said exceptions having been argued, the court, Swaktz, P. J., dismissed them, confirmed the report of the auditor, and entered a final decree accordingly. Thereupon, the exceptant having died, her executrix, Sarah Yeakel, took this appeal, specifying that the court erred in dismissing the several exceptions filed and in confirming the auditor’s report. 1. The accountant should have been surcharged with the value of the 100 shares railroad stock. Being the confidential, trusted agent, as well as the spiritual adviser of the party, he could not take such a gift. The sting of disability was in the situation. It would be so, even if the evidence was clear that she was of ordinary intellect; but it was plain that she was weak and easily overcome by the persuasion or the control which a sharp, shrewd business man, like this executor, would acquire over such a person by constant attention and flattery. Her acts, in giving away three fourths of her estate, show her weakness, independently of other testimony. 2. The relation of confidence which McAtee sustained to the decedent as spiritual adviser, as the custodian of all her securities, and as her trusted agent transacting all her business, made it impossible that the gift should stand: 2 Lead. Cas. in Eq., 1192; Shelford on Lunacy, 2 Law. L. 265-269, 270-273; Gibson v. Jeyes, 6 Ves. 266; Hill on Trustees, 156; 2 Story’s Eq., §218; Hatch v. Hatch, 9 Ves. 292; Chesterfield v. Janssen, 2 Ves. Sr. 125; Hull v. Perkins, 6 Wend. 631; Greenfield’s Est., 14 Pa. 505 ; Caldwell v. Anderson, 104 Pa. 204; Archer v. Hudson, 7 Beav. 551; Darlington’s App., 86 Pa. 512; Miskey’s App., 107 Pa. 630; Cuthbertson’s App., 97 Pa. 163; Wilson’s App., 99 Pa. 545; Wilson v. Mitchell, 101 Pa. 505. 3. As to the $1,000 U. S. bond. The only evidence that it had been transferred to the accountant was his own testimony, which was inadmissible. Besides, under all the circumstances, his unsupported testimony was not entitled to credit. And, as to the $2,400 U. S. bonds, the railroad and insurance stocks, the transfer of them to Mary Ann was without consideration, and there was no occasion for it. The accountant charged himself with these items in his account; his account was in the jurisdiction of the court, and the court not only had the power, but it was its duty, to do complete justice between the parties: Kittera’s Est., 17 Pa. 422; Whiteside v. Whiteside, 20 Pa. 474: Shollenberger’s App., 21 Pa. 387; Johnson’s App., 114 Pa. 139; Otterson v. Gallagher, 88 Pa. 357; Misldmins’ App., 114 Pa. 533; Neill’s Est., 19 W. N. 383; Mussleman’s App., 65 Pa. 480; Postlethwaite’s App., 68 Pa. 480; Blacky. Black, 34 Pa. 357; Dundas’s Est., 73 Pa. 474; Patterson’s App., 116 Pa. 9; McMurray’s App., 101 Pa. 427. 1. The auditor bases his finding that the 100 shares of railroad stock was a gift from Miss Corson to Mr. McAtee, the free and uninfluenced act of the donor’s mind, upon the uncontradicted testimony of seven witnesses. Although the burden of proof was placed on the donee to establish the fairness of the transaction, and that the gift was not procured by fraud, concealment, or other improper means, and that the donor had full knowledge of its character, extent and value, he certainly established it beyond all doubt. In addition to the cases cited by the auditor, reference is made to Pringle v. Pringle, 59 Pa. 285 ; Russell’s App., 75 Pa. 269. 2. A study of the testimony (reviewed) will show that it was impossible for the auditor to come to any other conclusion. Moreover, the finding of the auditor upon the facts, which has been approved by the court below, will not be disturbed on appeal except for flagrant error: Burroughs’s App., 26 Pa. 264 ; Whiteside’s App., 23 Pa. 114; Mellon’s App., 32 Pa. 121; Landis v. Scott, 32 Pa. 495; Robinett’s App., 36 Pa. 174; Dellinger’s App., 71 Pa. 425; Sawtelle’s App., 84 Pa. 306; McConnell’s App., 97 Pa. 31; Loomis’s App., 22 Pa. 312; Bull’s App., 24 Pa. 286; Bolton’s App., 3 Gr. 204; Chew’s App., 45 Pa. 228; Gilbert’s App., 78 Pa. 266; Bedell’s App., 87 Pa. 510. 3. Mr. McAtee was clearly a competent witness under § 7, act of May 23, 1887, P. L. 160: “ Such person, so cross-examined, shall become thereby a fully competent witness for the other party as to all relevant matters, whether or not these matters were touched upon in his cross-examination.” And, as to the $2,400 in U. S. bonds, the railroad and the insurance stocks, claimed as the property of the exceptant adversely to the estate of the decedent, the auditor properly decided that the Orphans’ Court had no jurisdiction, and that this claim must be determined in the pending proceeding in equity : Groff v. Groff, 14 S. & R. 181; Weyand v. Weller, 39 Pa. 443; Harrisburg N.. Bank’s App., 84 Pa. 380; McBride’s App., 72 Pa. 480; Braman’s App., 89 Pa. 78; Winton’s App., Ill Pa. 387.
137 Pa. 170Commonwealth v. Marshall (1890)
Where one is indicted for obstructing a long-used public highway, by the erection of a private wall upon what he claims to be his property line, the question as to his defence is, not whether his wall is within the lines of the highway as originally laid out, reported and confirmed, but whether it is within its lines as maintained by the supervisors and used by the public.
137 Pa. 175Estate of Stewart (1890)
APPEAL BY J. F. CONNOLLY ET AL. FROM THE ORPHANS’ COURT OF LACKAWANNA COUNTY. No. 372 January Term 1889, Sup. Ct.; court below, number and term not given. On June 30, 1884, Dr. Thomas Stewart, executor of the will of Jesse Stewart, deceased, filed his first account, which after-wards passed in due course to final confirmation. On January 14, and June 20, 1885, petitions were presented by distributees interested in the estate, praying for a review of the account. A citation having issued to the accountant, and answer thereto filed, the court made an order opening the decree of confirmation, and referring the account to Mr. J. Alton Davis, as auditor. Among the credits claimed in the account as filed, and objected to by the exceptants before the auditor, was one stated in the following words : “ By assignment of judgment, $5,000.” The following facts relating to that credit were shown: On May 1, 1877, Jesse Stewart, the testator, who was the father of the accountant, sent to Judge Handley, of Scranton, the sum of $9,276.49, for investment. Of- this sum, Judge Handley invested $5,000 in a bond and mortgage given by one Melvin to Annie C. Loag, taking an assignment thereof from Annie Loag to Jesse Stewart; $8,500 in a judgment against John Gibson, and the remainder, $776.49, in notes of one Beardsley. In October, 1877, Jesse Stewart wishing to have $1,400, that amount was sent to him by Judge Handley, who took from him an assignment of the Gibson judgment to that extent. This reduced the interest of the testator in these investments to $7,876.49, upon which amount interest was regularly remitted to him by Judge Handley until July 1, 1881. Prior to the latter date, however, the securities had been changed by Jesse Stewart’s direction. Certain notes discounted in bank, given by the accountant and indorsed by the testator and Judge Handley, having been dishonored, were paid by Judge Handley and charged to the Jesse Stewart fund. These payments used up the Gibson judgment and the Beardsley notes, and in addition thereto the sum of $1,780.96 of the Loag mortgage. On March 25, 1880, that mortgage was assigned by the testator, to the extent of $3,000, to John Rudy, as collateral security for a loan made by him to the accountant. The loan and security were afterwards transferred by Rudy to R. Crippen, and were paid to Crippen, after the testator’s death, by Judge Handley, and charged against the testator’s funds. Thus, all the funds invested by Judge Handley for the testator were used up, except a balance of $219.04. This balance, after the testator’s death, was paid in cash to the accountant by Judge Handley. Jesse Stewart, the testator, lived at Belvidere, New Jersey. The accountant lived at Scranton. On June 18, 1881, the testator, then about eighty-eight years of age and in feeble health, came to Scranton in response to a telegram from his son, the accountant, and remained there for several days. On the day of his arrival, he received from the accountant a judgment note for $4,000, as security for his past indorsements for the latter. The testimony before the auditor tended to show that, two days later, he made an assignment to the accountant of the debt secured by the Loag mortgage and the judgment bond accompanying the same. In view of tbe use that had been made of the funds invested in that mortgage, to take up and secure debts of the accountant, the effect of such assignment, if absolute, would practically be a release of the accountant from debts due by him to his father. On November 25, 1881, the testator died at Belvidere, N. J., leaving a will whereby he appointed his two sons, J esse and Thomas, as his executors. His will was duly proved in Warren county, N. J., on December 23,1881. On the same day letters testamentary were granted to the executors therein named, who filed an inventory and appraisement of the estate, containing the following item: “ Amount of money received by the Hon. John Handley and Thos. Stewart, M. D., agents of Jesse Stewart, Sr., $9,276.49.” On June 27,1883, ancillary letters were granted to the accountant by the register of wills of Lackawanna county, his co-executor, Jesse Stewart, Jr., declining to act in Pennsylvania; and on June 30, 1883, the accountant filed an inventory with said register, the second item therein being stated thus: “ Mortgage and judgment notes amounting to $12,000, upon which there is due thereon the sum of $7,876.49 with interest on the same from the 10th day of July, 1881; total value, $8,805.91.” In the account in question before the auditor, the accountant had charged himself with the whole amount of the Pennsylvania inventory. The principal sum of $7,876.49, mentioned in the item of said inventory above quoted, included the Loag . mortgage; and the credit in the account of $5,000 which was excepted to, was taken in pursuance of a claim that the debt secured by said mortgage had been given to the accountant by the assignment in June, 1881, above mentioned. The auditor, in his first report, surcharged the accountant with $5,000, holding that, by putting into the inventory the amount of the Loag mortgage, he was estopped from claiming title thereto. Exceptions to this ruling were sustained by the court, Arcrbald, P. J., citing Bell’s Est., 25 Pa. 92, and distinguishing Miller v. Springer, 70 Pa. 269; s. c. 88 Pa. 203; and the report was re-committed to the auditor for a finding upon the question whether or not the alleged assignment was in fact made. In his second report, the auditor found adversely to the accountant upon this question, and accordingly recommended that the surcharge of $5,000 be allowed to stand. Upon exceptions to this report, the court, Abchbajjd, P. J., overruled the auditor’s finding upon the question respecting the making of the assignment, but declined to give effect to the assignment as an absolute transfer, and confirmed the surcharge, for reasons stated in the opinion, which was, in part, as follows: But the fact of the assignment, and the effect to be given to it, are two separate and distinct things. It is in this connection' that the facts and circumstances which are so forcibly arrayed by the auditor against the assignment come in, and show that an absolute and unqualified transfer of this judgment to the accountant to hold as his own, could not have been intended and cannot now be sustained. In the first place, then, it is not pretended that the transfer was for value; it is simply claimed as a gift from the decedent to his son. Now, not only is the evidence of this unsatisfactory in itself, but the subsequent conduct of the accountant with respect -to this security entirely dissipates such an idea..... But, going back to the evidence of Judge Handley, how did it come about, if he knew that the Loag mortgage had been given to Dr. Stewart, that on July 26, 1881, he paid to Jesse Stewart the interest on this security for the six months preceding? Or, again, in August, 1882, after the death of the decedent, when Daniel LaBar and Jesse Stewart, Jr., came to Scranton for the express purpose of seeing how the estate stood, and in company with Dr. Stewart went to the office of Judge Handley, how was it that, in the detailed examination of books and accounts there gone into, no mention was made of the accountant holding an assignment of the Loag judgment ? Or, still again, in June, 1888, when Dr. Stewart took the appraisers to the same office, to obtain from Judge Handley a statement of the affairs of the estate for the purpose of making an inventory and appraisement of it, why, if this same security was then, to the knowledge of the witness, owned by the accountant, was it given to the appraisers as part of the estate ? I can find no satisfactory answers to these questions anywhere in the case; and while it is true that the accountant is not answerable for what Judge Handley did or did not do, I agree with the auditor that these acts may well be weighed against his testimony as a witness, and that the latter is to such extent discredited. I do not mean in this to suggest anything derogatory to Judge Handley. The circumstances simply show that he must be mistaken. This conclusion is emphasized when we come to consider the conduct of Dr. Stewart himself, with respect to this security. On a trip to Belvidere in December, 1881, about a month after the death of his father, he stated to Daniel LaBar, who was there to become surety for him as executor of the estate, that the property at Scranton amounted to nine thousand two hundred and odd dollars, besides some bank stock. It was at this time that the appraisement in New Jersey was made, and included therein, in funds, the following item: “Amount of money received by the Hon. John Handley and Thos. Stewart, M. D., agents of Jesse Stewart, Sr., $9,276.49.” The inventory-containing this was signed by Dr..Stewart, and proved before the surrogate by his oath, with that of the other executor and one of the appraisers. The amount so given necessarily included the $5,000 Loag judgment, and we have thus a solemn admission confirmed by the oath of the accountant, that it constituted a part of the decedent’s estate. We have already noted that Dr. Stewart was present at Judge Handley’s in August, 1882, when Daniel LaBar and Jesse Stewart, Jr., went over in detail the affairs of the estate, and that no claim was then made to this judgment. We also have a reference to the same investigations in a somewhat remarkable letter from Dr. Stewart to his co-executor, in November, 1882: “Scranton, Nov. 14,1882. “ Mr. Jesse Stewart, Stewartsville. “ Dear Sir:.....You ask me in your letter if you shall advertise for settlement. What can I say? I do not know. I have been manipulating one way, and you have been manipulating another way. I told you the truth on two different occasions; then you came up here to see for yourself, and I supposed that you were satisfied, after seeing things in black and white, that what I told you was so. You seemed at that time to be satisfied that all was right, and in the last letter you wrote to me if Judge Handley would not furnish the money and take a mortgage on my property; something must be wrong, as though him and me was a conspiring together to defraud and cheat the estate. Then you write to Judge Handley to know if I would be willing to give a mortgage if you could raise the money down there, and he wrote to you that I would be glad to give a mortgage for five thousand dollars to settle the matter, as I was tired of this slander all the time about cheating the estate; and so I am, for it has been thought Judge Handley and myself was going to cheat father and the estate out of the money ever since it came here, and there has been more fuss made over these eight or nine thousand dollars than many persons would have made over two hundred thousand dollars. Now what can I say? I do not know whether you can get the amount of five thousand dollars or not; if you can, I am ready to send you bond and mortgage to that effect at a reasonable rate of interest, payable annually, which Judge Handley wrote to you about..... “Yours respectfully, “Thomas Stewart.” It seems to me that there is enough in this letter alone to discredit the present claim. At the time it was written, the $3,000 for which the Loag mortgage was pledged as collateral had not yet been paid. The indebtedness of the accountant to the estate therefore was summed up in the $4,657.46 paid upon his notes, out of the funds of the decedent, with interest which would run it up to the neighborhood of $5,000. It is this that the mortgage of that amount referred to in the letter was no doubt intended to cover. Nothing indeed is directly said about the Loag mortgage, but the writer asserts the truth of his former statements to his co-executor, and appeals to the personal investigation made by the latter in proof of them ; speaks of the eight or nine thousand dollars over which so much fuss has been made, and finally refers to the mortgages of his father, held by Judge Handley against the property shown the executor when he was up in Scranton, upon which security and such as he could furnish personally, he thinks Judge Handley would be safe in paying over the money of the estate. Now the only moneys at the time which practically were in Judge Handley’s hands,'were the balance not yet exhausted by the debts of Dr. Stewart, of the $5,000 Loag mortgage. For, of the $9,276.49 originally received, and invested in the Gibson judgment of $8,500, the Loag mortgage of $5,000 and the Beardsley loan of $776.49, fourteen hundred dollars had been repaid to the decedent October 1, 1877, and $4,657.45 had been paid out from time to time on Dr. Stewart’s notes. . . . The face of the Loag mortgage had thus at that time been drawn upon to the extent of some $1,800 on account of this accountant’s debts. The balance of $3,200, according to his present claim, belonged to him by virtue of his assignment, and yet he talks in this letter of Judge Handley turning over the estate to his co-executor!..... No doubt the inventory made by an administrator or executor, is not conclusive upon him. The law imposes the duty of making a true and perfect inventory of the estate, which he must submit to appraisers to value. But it would be a harsh rule to hold him concluded thereby, and such is not the law. The inventory is prima facie evidence of the extent and value of the estate which has come to the administrator’s hands, but he may still show that through inadvertence, ignorance, or mistake, property has been put into it which did not in fact belong there: King’s Est., 12 W. N. 109; Bradford’s Case, 1 Bro. 87; 3 Williams on Exrs., 1966 n. This may well apply not only where property has been inventoried which is found to belong to a third party, but also where by mistake or inadvertence the administrator has inventoried that which belongs to himself. Of necessity, however, in the latter case a much more stringent rule of proof must be observed than in the former. It is so extraordinary a suggestion for the administrator to lay claim as his own to that which apparently he has voluntarily inventoried as part of the estate, that he can only be allowed to prevail in such claims upon the clearest and most satisfactory evidence. What explanation, then, is offered by the accountant here for inventorying this security ? It is suggested, though how this comes into the case I hardly know, only that it appears in the auditor’s report and was adverted to by counsel at the argument, that upon the inventory in New Jersey everything was put in, including even the advancements to the heirs, so as to swell the estate and enlarge the commissions of the executors. If there were indeed anything sufficiently definite in the case to bear this out, I should be compelled to discard it, upon the principle, nemo allegans suam turpitudinem audiendus est. But there is not. Dr. Stewart indeed testifies that they included the advancements under his protest, but nothing was said against the amount at which the property in his and Judge Handley’s hands was stated. Now, is there anything to sustain the further suggestion that the inventory here was based upon that in New Jersey? The evidence is to the contrary. The inventory and appraisement here were independently made from an examination of the securities submitted. It is true, Judge Handley says that he included the Loag mortgage at the time, so that the whole transaction with the decedent might appear, and the inventory here correspond with the amount given to LaBar and the other executor. But we are not concerned with the purpose of Judge Handley. The accountant says that he furnished the information to the appraisers, and Judge Handley merely gave them the items; and, in any event, it is evident that the statements made and securities exhibited to the appraisers were accepted and adopted at the time, as correctly representing the affairs of the estate. What mistake or inadvertence can be predicated upon such evidence? There is no allegation by Dr. Stewart that the assignment escaped his mind, or that he did not understand the effect of the inventory. No subsequent effort is made to have it corrected so as to truly represent the estate according to the present claim: Bradford’s Case, 1 Bro. 87. Not a thing is heard of it by any one interested in the estate, until it is set up in the account now under consideration. The whole of the accountant’s case lies in his possession of the assignment and the evidence which goes to show that it was a gift. Against the inventory alone this might be sufficient; but the fact of having inventoried this security as belonging to the estate is by no means the whole of the case against him. All the facts and circumstances, which I have endeavored to detail, extending from a time immediately subsequent to the decedent’s death up to within a few months of filing his account, rise up with accumulated force and confront the accountant in his present claim. What should be the effect upon the candid mind ? Should the assignment of the judgment and the assertion that it was a gift be allowed to prevail, or the acts and admissions of the accountant, which entirely refute such an idea? It seems to me that there can be but one answer to this, and whatever may have been the purpose of making the assignment, we are forced to conclude from the evidence that it was never intended by the decedent or understood by the accountant to be a gift, or that he thereby became the owner in fact of the security..... But there is still another matter touching this claim, only slightly adverted to by the auditor, which to my mind, is conclusive against it; so that if all which has been so far considered were insufficient to overcome the effect of the assignment, it could not, nevertheless, be allowed to prevail. The accountant stood in such confidential relations to his father, that public policy will not, under the circumstances presented in this case, allow him to profit by the alleged gift. The decedent in June, 1881, was in his eighty-eighth year. He had been in feeble health for some time previous, and upon being called to Scranton by Dr. Stewart’s telegram, it was not considered prudent for him to go without the company of his granddaughter. If the opinion of Dr. McGee, his attending physician, be taken, he was childish and in his dotage, and not capable of transacting important business. These are circumstances of some, but not necessarily of a controlling importance. Undue influence may exist between persons in full'health of body and strength of mind; it is only that the weakness of either tends to create a greater feeling of dependence, and is the more liable to imposition, and improvident impulses. But the prime inquiry in such cases always is as to whether a relation of confidence between the donor and the donee existed at the time of the alleged gift. If it did, then the latter shall take nothing by the gift without satisfactory evidence that it was the clear intent of the donor to confer the benefit obtained, after having been fully advised with respect to the same, either by the donee himself or by some other and indifferent party. This rule is too well established and too familiarly known to need the citation of authority to sustain it. It will be found fully exemplified, however, in Huguenin v. Baseley, 14 Yes. 294; Bellage v. Southee, 9 Hare 540; Rhodes v. Bates, L. R. 1 Ch. App. 252; Greenfield’s Est., 14 Pa. 505; Boyd v. Boyd, 66 Pa. 283; Darlington’s App., 86 Pa. 512; Cuthbertson’s App., 97 Pa. 163; Miskey’s App., 107 Pa. 611; Brogan’s App., 2 C. P. Rep. 148; Yardley v. Cuthbertson, 108 Pa. 395; 2 Lead. Cas. in Eq., p. 1192, et seq. To my mind the present case falls within the rule. Less than what is here shown was held sufficient by the Supreme Court in Brogan’s Appeal, supra, to set aside the voluntary deed from a mother to a daughter. There were peculiar relations of confidence between the decedent and his son with respect to the subject of the alleged gift. It composed or was supposed to compose a part of property of the decedent which had been entrusted to Dr. Stewart and Judge Handley for investment and management. The former had indeed been allowed to draw upon it, from time to time, to meet his personal financial needs. Still, there had been an apparent intent on the part of the decedent to meet this by taking counter security, and the moneys as originally invested in the Gibson judgment and Loag mortgage were held and regarded as substantially intact. Interest was regularly paid upon them to the decedent every six months. They had in fact, however, been almost entirely eaten up by the accountant’s debts ; $4,657.45 had been actually paid out for Dr. Stewart at that time, and $3,000 more was pledged to secure his note to Mr. Rudy. Practically the whole estate was gone. Was this condition of things known to the decedent, or brought home to him, at the time of making this alleged gift ? There is certainly nothing to show it. On the contrary; it is said that, while angry with one of his other children, Mrs. Wilson, for having had to pay some $1,400 for her, several years before that, he considered his son Thomas as the only one who had ever done anything for him, and this combined reason is assigned as the motive for the gift. If this was what actually moved the decedent, it shows, not only the unreasoning impulse of a childish old man, but, — what is more important upon the point we are now considering, — an entire misapprehension also of the facts. What information or counsel, then, did the decedent receive at this time ? It is certain the accountant offered none, and it is doubtful whether Mr. Campbell was in a position or had the knowledge to afford any. True, Judge Handley says he advised against the suggestion made by the decedent that he was going to give all his property here to his son, Dr. Stewart. But what facts or information did he lay before him, which might be expected to dissuade a rational mind ? Again; it is pertinent to inquire whether the decedent was advised as to the legal effect of the transfer of this security to the accountant. Did he suppose that the assignment simply bestowed the balance of the Loag mortgage over and above the $3,000 for which it stood pledged, or did he expect and intend, as now claimed by counsel, in the ninth exception, that it also canceled the obligation of the accountant to which it was collateral ? In the one case it amounts to two and in the other to eight thousand dollars. It is incumbent upon the claimant to clear up these matters in order to relieve the transaction from the imputation of undue influence, which the law otherwise conclusively presumes. This has not been done. Upon grounds of public utility, then, as well as for the other reasons before stated, the alleged gift to the accountant cannot be allowed to prevail..... The result is that notwithstanding the second and third exceptions on the part of the accountant, have been sustained; [the supplemental report of the auditor, and the re-statement of account therein contained, must be confirmed, and it is so ordered.] 8 [And it is further ordered that the costs of audit, amounting to the sum of $321, be paid by the accountant, out of the funds of the estate in his hands, to be reimbursed, however, unto the said estate by the said accountant, out of his own personal funds.] 3 —Thereupon, Dr. Thomas Stewart, the accountant, having died pending the proceedings, John.F. Connolly and others, his executors, who were substituted, took this appeal, specifying for error: 2, 3. The orders of the court below embraced in [ ] 8 3 Counsel, confining the argument chiefly to the facts in controversy, cited and distinguished: Miskey’s App., 107 Pa. 611; Cuthbertson’s App., 97 Pa. 163. Counsel cited: Houghton v. Houghton, 15 Beav. 278; Miskey’s App., 107 Pa. 611; Brogan’s App., 2 C. P. Rep. 148; Warrall’s App., 110 Pa. 849; Shea’s App., 121 Pa. 302; Miller v. Springer, 70 Pa. 269; s. c. 88 Pa. 203.
137 Pa. 188Sweetzer v. Atterbury (1890)
No. 129 July Term 1889, Sup. Ct.; court below, No. 327 April Term 1883, C. P. On February 26, 1883, Addison Sweetzer brought ejectment against B. B. Atterbury and Olivia P. Atterbury, his wife, and others, for two lots of ground in the city of Scranton, upon which was erected a building known as Washington Hall. The defendants’ plea was not guilty.
137 Pa. 197Ogden v. Beatty (1890)
APPEAL BY PLAINTIFFS FROM THE COURT OE COMMON PLEAS . NO. 4 OE PHILADELPHIA COUNTY. No. 113 January Term 1890, Sup. Ct.; court below, No. 319 March Term 1889, C. P. No. 4. On May 4,1889, Emanuel Ogden, John D. Hutchinson and George Hutchinson brought assumpsit against James M. Beatty, trading as James M. Beatty & Co. The plaintiffs filed a verified statement of claim, declaring upon a book account for yarn sold by them to the defendant, amounting to $1,118.75, and also upon four promissory notes, three of which were drawn by the T: Hermann Manufacturing Company and indorsed by the defendant, the fourth note being drawn by the defendant to the plaintiffs’ order. The plaintiffs’ claim as stated, was for $6,033.40, with interest thereon, and also $5.99, costs of protest upon said notes. The defendant filed an affidavit of defence which averred: “ I have a defence to the whole of plaintiffs’ claim in this suit of the following character: The notes in suit were all given for payment for yarn bought by me from plaintiffs, and all of said yarn, together with the yarn claimed for in plaintiffs’ statement, was bought by me by sample which was shown by me to John Hutchinson, the member of plaintiffs’ firm from whom I bought the yarn. The yarn delivered was of a lower grade than the sample and very much inferior thereto in quality, by reason of which I lost very much more than the amount plaintiffs claim in this case, by reason of claims made on me by my customers on account of the poor yarn in the cloth manufactured from the said yarn, and by reason of the cancellation of 'contracts made with me hy customers on account of the lower grade and inferior quality of the yarn. My loss directly by reason of the lower grade and inferior quality of said yarn amounts to many thousands of dollars in excess of the amount claimed by plaintiffs in this case. “ I expect to prove these facts on the trial of this case.” ■ — -A rule for judgment for want of a sufficient affidavit of defence was taken and, after argument thereof, discharged; exception.8 Thereupon the plaintiffs took this appeal, specifying that the court erred: 1. In refusing to enter judgment for want of a sufficient affidavit of defence. 2. In discharging the rule for judgment.8 1. This was not a sale by sample, although so called in the defendant’s affidavit. A sample is “ a portion of the goods to be sold, fairly taken from the hulk, ” and that term is inaccurately used in the affidavit, as the substance of the allegation is that certain goods were ordered by description, that is, the defendant showed to the plaintiff certain goods, and ordered certain other goods to be of the same description. The affidavit describes neither the goods shown to the plaintiffs, nor the goods received by the defendant under his order. Nor does it aver an agreement or warranty that the goods ordered should correspond with those shown. Whatever is not stated in an affidavit of defence is taken not to exist: Lordv. Ocean Bank, 20 Pa. 387. The defendant’s allegation that he made a purchase by sample, is merely his own conclusion, and his general averment thereof is insufficient: Gould v. Gage, 118 Pa. 565; Stitt v. Garrett, 3 Wh. 283. 2. But if the defendant had properly alleged a warranty, the affidavit would still remain wholly frivolous and evasive, as, when it comes to state the breach of warranty, it does not deal in facts, hut merely in adjectives and opinions. It does not state a single fact in support of the defendant’s opinion respecting the quality of the goods; and the averments in this affidavit, being mere matter of opinion, upon which no indictment for perjury would lie, it does not comply with the requirements of the affidavit of defence law: Gould v. Gage, 118 Pa. 561; Erie City v. Butler, 120 Pa. 382; Stitt v. Garrett, 3 Wh. 283. Moreover, the affidavit fails to state properly the damages alleged to have been suffered. They are averred simpty as a general statement of results, from unstated facts and unnamed conclusions of law. As the defendant nowhere denies getting and keeping the goods, he is bound, in any case, to pay what they were worth, notwithstanding their defects. His affidavit is an attempt to usurp the court’s function of determining the law on facts stated, and is insufficient: Stitt v. Garrett, 3 Wh. 283; Goüld v. Gage, 118 Pa. 565; Louchheim v. Becker, 3 W. N. 449; McCracken v. Congregation, 111 Pa. 106. 1. While the strict legal definition of sale by sample is in accordance with the plaintiffs’ contention, among the ordinary significations of the word sample are: “ specimen, example, illustration.” An affidavit is not defective because of omitting to use words in a technical sense. It is enough if they are used with their ordinary conventional significance. There is nothing in the act of April 13,1887, P. L. 21, which provides that there shall be an implied warranty in all sales by sample, unless otherwise agreed, to limit the use of the word sample; and, according to the plain meaning of the act, the warranty arises, whether the sample was shown by the vendor or by the vendee. 2. It is impossible to tell from a casual inspection of yarn, when delivered, whether it comes up to the sample on which it has been ordered. That can be told only by the use of the yarn after it is put in course of manufacture. As to what makes yarn poor and unfit for use, there is no standard in words that can be applied. Inferior yarn makes poor goods, and the affidavit distinctly says that the defendant’s loss was incurred by reason of the poor yarn in the cloth manufactured therefrom. No other test can be suggested; nor could this test be averred or applied in more emphatic words than have been used in this case. 3. That the amount of the defendant’s loss is not stated in figures is unimportant, inasmuch as it is averred to be in excess of the plaintiffs’ claim. In the ordinary case, when the damages claimed are less than the bill sued for, there is necessity for an exact statement. And it is no argument to say that the defendant kept the yarn and did not offer to return it. It would be impossible for him to do so. The quality of the yarn could not be ascertained until it was manufactured into goods, and the goods placed on the market. The goods manufactured and sold by the defendant, and not paid for because of the poor quality of the yarn, represent not only the value of the yarn, but that of other materials, labor, rent, etc. The yarn was not only worth nothing to the defendant, but was destructive of his entire product. On an appeal of this kind there can be a reversal only for a clear case of error in law: Griffith v. Sitgreaves, 81* Pa. 378.
137 Pa. 203Datz v. Phillips (1890)
4 OE PHILADELPHIA COUNTY. No. 149 July Term 1889, Sup. Ct.; court below, No. 247 December Term 1886, C. P. No. 4, iu Equity.
137 Pa. 219Stephens v. Gifford (1890)
APPEAL BX DEFENDANTS FROM THE COURT OF COMMON PLEAS OF ERIE COUNTX. No. 276 January Term, 1890, Sup. Ct.; court below, No. 170 November Term 1888, C. P. On November 12, 1888, an appeal was entered by the defendants from tbe judgment of the recorder of Erie city in favor of George Stephens against M. V. B. Gifford and Frank Williams, for $550 and costs. The plaintiff having filed a statement of claim in trespass for the value of a pair of horses, wagon and harness, sold as the property of Frank Mulkie, by Gifford as sheriff, on an execution in favor of Williams, the defendants pleaded not guilty. At the trial on December 11, 1889, the plaintiff’s evidence was to the effect that in the latter part of May, 1888, the plaintiff, who lived at Titusville and conducted a cooper-shop, had an account of about $3,000 against Frank Mulkie, who carried on an oil refinery at Corry. Meeting Mulkie at Corry, Mulkie proposed to sell to plaintiff the horses, wagon and harness in dispute for $550, the plaintiff to have the use of the barn where the horses were kept, while they remained at Corry, with the feed that was on hands. The plaintiff told Mulkie he would write and let him know as to the proposition. The same day, the plaintiff met John Keefer, who for a long time had had the care of the team for Mulkie, and arranged with Keefer that if he bought the property Keefer should take charge of it for him. On May 29th, the plaintiff accepted Mulkie’s offer by letter, and the same day Mulkie discharged Keefer from his employ, and Keefer after that charged his time to the plaintiff. Mulkie the same day, charged the price of the team to the plaintiff. Keefer continued to keep the horses, etc., in the same compartment of the same barn where they were kept before, the barn being inclosed within the refinery property. He carried the keys of the compartment as before, and he alone had access to it. On June 2d, a writ of execution came into the hands of Sheriff Gifford, at the suit of Frank Williams against Frank Mulkie, and on June 5th, a levy was made upon the property in dispute, with other property alleged to belong to the execution-defendant. The plaintiff making claim to the team, etc., Williams gave to the sheriff a bond of indemnity, and on September 15th, the property was sold at sheriff’s sale. At the close of the testimony, the court, Gunnison, P. J., charged the jury: In this case, there is no evidence to justify you in finding actual fraud. Actual fraud must be proven, and cannot be inferred or presumed. And you are instructed in this case, that there is no evidence upon which you would be justified in finding that there was any actual fraud in the sale of this property to Mr. Stephens. If you believe the testimony of Mr Chadwick, and Mr. Keefer and Mr. Stephens, the property was sold to Mr. Stephens on the 29th day of May, the day following that upon which the transaction was closed. A valuable consideration was paid for the property. Mr. Mulkie owed Mr. Stephens a certain amount of money, and it was agreed between them that he should take this property and that Mr. Mulkie should credit him with the amount agreed upon, $550, and that was as valuable a consideration as if he had paid him $550 in cash. As far as the transaction of the sale is concerned, you would not be justified in finding that it was otherwise than honest and fair. So, the only question you have to decide is whether there was such a transfer of possession from Mr. Mulkie to Mr. Stephens as the law requires. If there was, then there was no constructive fraud. If there was not such a change as the law requires, there was a constructive fraud, and in that case your verdict should be for the defendants. Mr. Stephens testifies that he had an interview with Mr. Mulkie several days before May 29,1888, and there was an understanding that if he could make an arrangement satisfactory to himself he would take the property at the price agreed upon. At the same time, he made arrangements, in case he should accept Mr. Mulkie’s proposition, for Mr. Keefer to take charge of the property for him. On the 29th day of May he wrote a letter to Mr. Mulkie agreeing to take the property, and that letter was received by Mr, Mulkie on the 29th of May, and on the 80th of May Mr. Mulkie’s book-keeper, under the instructions of Mr. Mulkie, charged Mr. Stephens in his account with the amount agreed to be paid for the property, $550. On the very day upon which this letter was written and upon which Mr. Mulkie received the letter, if you believe the testimony of Mr. Mulkie and Mr. Keefer, Mr. Mulkie delivered the possession of this property to Mr. Keefer on the public highway in the city of Corry, and then and there discharged him from his employment. Now, that is a very important matter for you to consider in determining this case; because, if Mr. Mulkie had not discharged Mr. Keefer on that day from his employment, then there might be evidence to justify you in finding that there was no change of possession, because the possession remained in Mr. Keefer, who had before had possession and charge of the property, and he would still be the servant of Mr. Mulkie, and his possession might still be considered by you to be the possession of Mr. Mulkie. [But if he discharged him on that day from his employment, and delivered the possession of the property to him, and upon his discharge Mr. Keefer entered the employment of Mr. Stephens, then it would be the possession of Mr. Stephens;] 1 because the delivery of possession to Mr. Stephens’s servant would be equivalent to delivering possession to him in person. Then, the testimony of Mr. Stephens and Mr. Mulkie is that it was kept in the same barn and stable of course as before, but Mr. Mulkie tells you that Mr. Keefer had the key and that Mr. Mulkie had no access to the barn except by applying to Mr. Keefer for the key, and with Mr. Keefer’s consent, and that Mr. Mulkie was never in the barn afterwards. Now, if that is so, the fact that they were kept in the same premises would not be sufficient to defeat the right of the plaintiff. The delivery of possession may be made in various ways. It may be by the vendor manually handing the property to the vendee, or it may be by his withdrawing from the possession and presence of the property. And if Mr. Mulkie discharged Mr. Keefer and Mr. Stephens employed him, and Mr. Keefer then as agent of Stephens had possession of the barn, and Mr. Mulkie was removed from his occupancy of the barn, that would be a sufficient transfer of the possession to vest a perfect title in Mr. Stephens to this property as against the creditors of Mr. Mulkie. The mere fact that a few articles of Mr. Mulkie, of small value, remained in the barn and stable, as an old harness and shovel and broom, etc., would not be sufficient to defeat the title of Stephens, providing Mr. Mulkie had no possession of the barn himself; and if you believe his testimony, it was a part of the arrangement, at the time of the sale, that Mr. Stephens should have this barn in which to keep his horses, and wagon, and harness until he should dispose of them; and, if the testimony of Mr. Mulkie and Mr. Keefer is correct, Mr. Keefer, as the servant of Mr. Stephens, had perfect and exclusive and not concurrent possession, and that possession would be the possession of the master, Mr. Stephens. -[And, if it were not for the fact that Mr. Keefer had made some statements to- the sheriff, and perhaps before the legal arbitrator, that were slightly inconsistent with this statement, you would be instructed peremptorily to bring in a verdict for the plaintiff.] a But the fact that there were such inconsistent statements makes it a proper question to submit to you, as to whether the transfer of possession was as claimed by the plaintiff..... Counsel for the defendants have'asked the court to answer specifically certain points presented. 8. If the jury, in considering the question of possession aforesaid, find from the evidence that after May 29, 1888, Keefer, the driver, was the legal bailee of Stephens, that will not avail the plaintiff, if it was contrary to the visible ownership and possession, and the verdict must be for the defendants. Answer: This point is affirmed also. If there was no such change of possession as to enable the public upon proper inquiry to find out who had possession of it, then there was not such a change of possession as the law required.3 4. That, if, from the evidence, the jury find said alleged sale and purchase to and by Stephens to have been honest and for value, yet that there was not such an open, notorious and visible change of possession from said Mulkie to plaintiff as would be apparent to the public, the same is a fraud in law and not binding on the defendant Williams, one of the creditors of said vendor Mulkie, at the time of said alleged sale to Stephens, and the verdict must be for the defendants. Answer: This point is refused. Whether or not there was such a change of possession of the property as will prevail against the defendant Williams, is a question of fact for the jury, under the evidence and under the instruction of the court as to the principles of law applicable to the case.4 6. That if the jury find from the evidence that such alleged sale was made from Mulkie to plaintiff, and that after the same, May 29, 1888, up to the attachment of the lien of Williams’s writ, June 2,1888,11.40 A. m., the team and property in question was fed and cared for by the same driver, Keefer; fed, cared for and stored in the same barn and on the same premises of Mulkie the same as before said alleged sale of May 29,1888, then there was no such change of possession as in this case was required by law, and said sale, no matter how honest in fact, was a fraud in law and the verdict must be for defendants. Answer: If the jury find from the evidence that after the date of the sale from Mulkie to the plaintiff, and prior to the delivery of the writ of Williams to the sheriff, the team and property in question were fed and cared for by the same driver Keefer; fed and cared for and stored in the same building or room and on the premises of Mulkie the same as before the alleged sale of May 29,1888, then there was not such a change of possession as in this case was required by law. But if they find that the property was not fed and cared for as before, but that on May 29,1888, Mulkie delivered the property to Keefer as the servant of the plaintiff; that at the same time he discharged Keefer from his employment; that Keefer thereafter had possession of the property as the servant of the plaintiff, upon premises or in a stable to which Mulkie had no access except on application to and with the consent of Keefer, that amounted to a sufficient change of possession such as would vest the title of the property in the plaintiff as against the defendants and the creditors of Mulkie. 10. That, if from the evidence the jury find that the property in question was, after the alleged sale from Mulkie to Stephens of Majr 29, 1888, up to the lien of defendant’s execution, June 2,1888, 11.40 A. m., kept in the same barn, building and premises where Mulkie’s property was, then at the least, if in all other respects the possession was perfect, it would not be an exclusive f possession in Stephens, and the verdict must be for the defendants. Answer: This point is refused.5 11. That, from all the evidence, the alleged sale was and is a fraud in law by reason of there being no such change of possession and open,.notorious, visible, apparent and exclusive possession as in this case is required by law, and the verdict must be for the defendants. Answer: This point is refused.6 12. That from all the evidence the jury would not be justified in finding for the plaintiff. Answer: This point is also refused.7 The jury'returned a verdict for the plaintiff for $599.50. Judgment having been entered, the defendants took this appeal, assigning for error: 1, 2. The portions of the charge embraced in [ ] 1 8 8-7. The answers to the defendants’ points.3 to 7 The court below erred in qualifying the answer to the defendants’ third point as follows: “ If there is no such change of possession as to enable the public, upon proper inquiry, to' find out who had possession of it.” This was of itself enough to mislead the jury and defeat the rights of the defendants, for we had shown no inquiry. There is no law charging the public or creditors with inquiry as to whether the debtor has sold his property, when it is kept upon the premises and cared for the same as it had been before the alleged sale. The question was, how was the team kept, etc. ? It must indicate to the public an actual change of possession: Worman v. Kramer, 73 Pa. 378. And, whether the sale to the plaintiff was accompanied by a corresponding change of possession required by the law, it was error to leave as a question of fact for the jury: Hoffner v. Clark, 5 Wh. 544. 1. The court below left the question of delivery to the jury in a remarkably clear and explicit charge as to what constitutes delivery; and there can be no question that Keefer had exclusive possession of the barn where the property was kept, that Mnlkie never was there after Stephens’s purchase until he went to the sheriff’s sale, and that Keefer had the key and was then in the employ of Stephens. The vendor must make such an actual delivery, only, as the nature of the property and the circumstances of the case will reasonably admit; and the separation may be made by the vendor’s surrender and the transfer of his power and control over it: Barr v. Reitz, 53 Pa. 256; McMarlan v. English, 74 Pa. 296; Billingsley v. White, 59 Pa. 464; Evans v. Scott, 89 Pa. 136. 2. “ In determining the kind of possession necessary to be given, regard must be had, not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties is required: Mr. Justice Mercer, in Crawford v. Davis, 99 Pa. 576; McClure v. Forney, 107 Pa. 414; Hugus v. Robinson, 24 Pa. 9; Boud v. Bronson, 80 Pa. 360; Renninger v. Spatz, 128 Pa. 524. Moreover, the public could in no way have been misled, for Mulkie never had the actual or manual possession of this team; it was a team that seemed to pass with or belong to the refinery. Keefer used it, and had the possession or control of it; he was then in law the 'bailee of Mulkie, and a change of his possession was unnecessary: Worman v. Kramer, 73 Pa. 378; Linton v. Butz, 7 Pa. 89; Woods v. Hull, 81* Pa. 451.
137 Pa. 234James v. Sterrett (1890)
No. 51 January Term 1890, Sup. Ct.; court below, No. 19 October Term 1886, C. P. On August 25,1886, Benjamin F. James brought case against Thomas K. Sterrett to recover damages for the alleged continuance of a nuisance to the lands of the plaintiff, after the recovery of a judgment against the defendant therefor in a prior action.
137 Pa. 244Bentley v. Cranmer (1890)
No. 10 July Term 1889, Sup. Ct.; court below, No. 804 May Term 1887, C. P. On April 23, 1887, Lloyd Bentley brought trespass against B. A. Cranmer to recover damages for personal injuries charged to the negligence of the defendant.
137 Pa. 249Penna. etc. R. v. Vandyke (1890)
1. Shops, owned and operated by a railroad company, for the construction and repair of its locomotives and cars, are liable to taxation for local purposes as real estate, even though they have no greater capacity than is required for the work the company itself has for them to do. 2. Railroad v. Berks Co., 6 Pa. 70; Erie Co. v. Transportation Co., 87 Pa. 434; Allegheny Co. v. Diamond Market, 123 Pa. 169, followed; Northampton Co. v. Navigation Co., 75 Pa. 461; Penna. R. Co. v. Pittsburgh, 104 Pa. 522, 545, explained; Northumberland Co. v. Railroad Co., 20 W. N. 381, and New York etc. R. Co. v. Sabin, 26 Pa. 242, distinguished.
137 Pa. 255Commonwealth v. Spink (1890)
No. 233 January Term 1890, Sup. Ct.; court below, No. 34 June Term 1889, Q. S. On September 2, 1889, the grand jury returned as a true bill an indictment against C. M. Spink and Edward P. Spink, in two counts.
137 Pa. 269Wilson v. Wilson (1890)
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF BEDFORD COUNTY. No. 290 January Term 1890, Sup. Ct.; court below, No. 33 November Term 1887, C. P. On October 9, 1882, a judgment for $19,006, in favor of “Annie D. Wilson, for self and in trust,” and against A. Porter Wilson and William A. P. Wilson, was entered in the court below upon a judgment note, dated the same day, and signed by the defendants. On October 12, 1882, the plaintiff assigned $2,293.45 of the judgment to John Mitchell. The part of it so assigned was afterwards paid to Mitchell and satisfied. On February 17, 1887, on petition of W. A. P. Wilson, one of the defendants, alleging that his signature to the judgment note had been procured by fraud and without consideration, a rule to show cause why the judgment should not be opened and said defendant let into a defence was awarded. Depositions were taken under the rule by both parties, and on September 6, 1887, the court, Baer, P. J., filed an opinion as follows: The allegation of' fraud made by the defendant falls by so great a preponderance of evidence that I am of opinion the court above would promptly reverse for opening on this ground. It is not a question what might a jury do under an allegation of fraud supported by such evidence, but what should it do. I conceive it would be my duty to say to them that such evidence does not prove fraud. On this view of the case, should the judgment be opened on any other ground of defence ? ... . Though the petition does not allege that any part of the note was given as indemnity or as collateral, the evidence as a whole does now very clearly show that a part of the consideration of the note was the risk assumed by the plaintiff in becoming indorser for the defendants, and that the note in part was given as indemnity for indorsements made to D. Caldwell for $2,948 and to the First National Bank for $10,000; and, though it does not appear how much, if any, has been paid by plaintiff, the evidence discloses the fact that some of it was paid by money raised on a joint mortgage of defendants and the plaintiff, and that if no part of the principal has been paid a large amount of interest has been, but by whom, especially how, does not appear. As the plaintiff’s witness, Mr. Caldwell, at whose instance the note was given, testifies to the fact that the note in part was for indemnity, as does one of the defendants, I deem so much of the judgment as covers the amount of indorsements to be a proper subject of inquiry, and therefore make the rule so far absolute as to permit inquiry into the amount paid by plaintiff on account of said indorsements, if any, and the amount for which by virtue of her said indorsements she remains liable, excluding all else from the investigation, the issue to be made in such way as will raise the question to be tried; the lien of the judgment to remain, and so much of the judgment as appears to have been assigned to John Mitchell, by consent of all the parties, to stand unaffected by this ruling. —Subsequently the court made an order directing that the issues to be tried should be as follows: 1. How much, if any, of the note in suit at the date thereof was for indemnity on account of certain indorsements made by plaintiff for the defendants, or either of them, to wit, on a note to I). Caldwell for $2,948, and on a note to the First National Bank for $10,000. 2. How much, if any, has the plaintiff paid upon said notes by reason of her indorsements. 3. How much, if any, is she still held responsible for on account of her indorsements of the said notes of $2,948 and $10,000. On September 13, 1887, the plaintiff issued a scire facias to revive the lien of the judgment.- W. A. P. Wilson made defence thereto, filing pleas which were not given in the paper-books. On November 28, 1888, the issue framed by the court under the rule to open the judgment, and the issue joined in the scire facias suit, were tried before the same jury. On the former issue, the jury by direction of the court rendered the following verdict: “We, the jury, have considered and duly passed on the question raised by the issues in this case, and (the trial on the scire facias to revive judgment pending before us at the same time, in which we will hereafter deliver a verdict,) we therefore find for the plaintiff on the issues joined in this case.”' The issue upon the scire facias being submitted by the court to the jury, the latter found a verdict for the defendant, W. A. P. Wilson, but the court afterwards made absolute a rule for a new trial in that case. At the second trial of the scire facias on April 23,1889, the defendant, W. A. P. Wilson, presented testimony tending to prove that the plaintiff and the defendants, who were the heirs of General A. P. Wilson, deceased, and as such were the owners of certain lands in Huntingdon and Bedford counties, raised the sum of $20,000, by a mortgage of their lands in Huntingdon county, for the purpose of paying debts due from General Wilson’s estate; that the plaintiff agreed to satisfy her judgment when that money should have been applied to those debts, and that it was so applied. W. A. P. Wilson, having stated, while testifying upon his own behalf, that, according to his understanding and as the matter was explained to him after the judgment in controversy was entered, the purpose for which it was given was that it should be used to raise money to meet pressing debts of the estate, he was asked upon cross-examination whether he did not say to Mr. Caldwell, after the entry of this judgment, that he did not sign the note on which the judgment was entered; this for the purpose of showing that the judgment was not given as collateral. Objected to. By the court: Objection sustained; exception.10 The plaintiff presented testimony tending to disprove the testimony of the defendant. The deposition of W. A. P. Wilson, taken upon the rule to open the judgment, was offered for the purpose of contradicting him on the allegation that this judgment was held as collateral, by showing that his statements were inconsistent. Mr. Hall: The statement was made that the note was signed in blank; we object, first, that the question of how the note was originally given, the purpose for which it was originally given, the $19,000 note, is no part of this ease; second, that they introduced that in a cross-examination of William Wilson and they are bound by his answer; third, the original transaction of the note, which we allege was given in blank and filled up by A. Porter Wilson with the name of Annie Wilson in as payee, was not allowed to be inquired into, on our side, and it cannot be brought in in this way, unless we are allowed a fair opportunity to explain the nature of this transaction; fourth, the evidence is irrelevant and incompetent in this issue. Mr. Reynolds: I offer it also in contradiction of the witness on the stand, that he testified before the magistrate that there was an agreement between him and his sister that this should be collateral. By the court: If we were to admit this, they would have a right to ask about other matters in this same deposition. We would have to rule that out. Mr. Reynolds: We offer only the part that is marked on the left margin; then I offer a portion as to his conversation with John Mitchell in procuring this assignment. Mr. McNeil: There is ho contradiction in that. By the court: We do not recollect that this witness says that the note was given as collateral, but that it was held as collateral. We shall exclude this testimony; exception.11 There was testimony tending to show that Miss Wilson had assigned $1,000 of the judgment to Mr. D. Caldwell, and that W. A. P. Wilson was present at the time this assignment was executed, and said nothing on that occasion about the judgment being held as collateral. At the close of the testimony, the court, Baer, P. J., charged the jury in part as follows : • William A. P. Wilson makes defence and alleges, not that the judgment was paid directly in money or anything else to Annie D. Wilson, the plaintiff, but that it has been satisfied. He says that Annie agreed that the judgment should be satisfied upon the payment of certain debts existing in Huntingdon county and so much of this judgment as had been assigned to John Mitchell, by the proceeds of a $20,000 mortgage, given by her brothers and herself upon certain Huntingdon county lands owned by them jointly..... It is further alleged on the part of the defence that the judgment was held in trust as a collateral security, and that it was so considered and understood by the parties to the judgment. The records show that the judgment stands in favor of Annie D. Wilson, “ for self and in trust,” but it does not show in trust for whom. On the face of it, it shows a valid judgment in favor of Annie herself, and in her favor as a trustee for somebody. She is the legal plaintiff, suing for herself and the persons covered by this trust, and can maintain the suit; and, unless the defence has shown that the original purpose of the judgment note was that of collateral security only, it would stand as a valid unconditional judgment, held for herself and in trust, and the plaintiff would be entitled to recover, for herself and as trustee, for such sum as remains unpaid and unsatisfied. The only satisfaction alleged is that of the payment, out of the mortgage moneys, of certain existing judgments against Annie D., William A. P., and A. Porter Wilson in Huntingdon county. But, though such judgments were paid, it was a payment by moneys raised on a mortgage binding the lands of each of them alike. It was not by moneys raised only on the lands of the two defendants alone; and this payment would not operate as a satisfaction of Annie’s judgment, unless the original purpose of the judgment was that of a collateral security for the payment of the Huntingdon county judgments..... From what we have said, you will see that, as no actual payment has been proved, though this question is for you, the question on which the case turns is whether the original purpose of the judgment note given to Annie, and on which this judgment was entered, was that of collateral security; and if a collateral security, whether the persons and debts intended to be protected by the collateral have since been paid or satisfied. We repeat that. We say, the question turns on this: Whether the original purpose, in giving the note on which this judgment was entered, was that of collateral security, and if a collateral security, whether the persons or debts intended to be protected thereby have since been paid or satisfied..... We are asked to charge you on some points which have been submitted to us by counsel for plaintiff and for defendant. We take the points of the plaintiff first, who asks us to say: 1. That, under all the evidence in this case, the verdict must be for the plaintiff, Annie D. Wilson. Answer: This we refuse, for the reason that there are certain matters of fact in this case for you to determine.1 3. That the validity of the judgment in suit, and the fact that it was not given as collateral, having, in the issues framed by and tried in this court been judicially determined, the jury must take it as established now, beyond controversy, that the judgment was not given as collateral. Answer: This we refuse. That question is still an open question for you to pass on.8 Now, we are asked to charge you on certain points by the defendant, as follows: 1. If the jury believe that the judgment of Annie D. Wilson v. William A. P. Wilson, for $19,006, was held upon an agreement or arrangement between her and him that the said judgment should stand as collateral security for certain indebtedness of the estate of General A. P. Wilson, deceased, of which estate Annie D. Wilson, A. Porter Wilson and William A. P. Wilson were the heirs, and which indebtedness has been actually paid since the date and entry of said note, then the verdict should be for the defendant, William A. P. Wilson. Answer: This point we affirm, if the jury find that the judgment note, as originally given, was, at the time it was made, given for the purpose of a collateral security; but if not originally given as collateral, any subsequent arrangement to hold it as collateral, without a consideration shown as passing to Annie, the plaintiff, would not, as between Annie and William, be sufficient to defeat a recovery. [The court reads the point again and then says :] This is affirmed, if the jury find that the judgment note, as originally given, was, at the time, given as collateral security, but if not, any subsequent agreement to hold it as collateral, without consideration, would not be sufficient to defeat a recovery by the plaintiff.7 But, if the evidence is believed, $1,000 of this judgment was assigned to Mr. Caldwell, one of the plaintiffs, in the presence of the defendant, William A. P. Wilson, without objection by him. He is, therefore, estopped from setting up a defence to the Caldwell part of the judgment, and for the Caldwell part, at least, the plaintiff would be entitled to a verdict. If the judgment in favor of Annie has not been paid, and was not held as collateral, then the verdict would be for the plaintiff for the amount of her judgment, less the amount which had been assigned to Mr. Mitchell, with interest from the time it was entered. This is the question in this case. The jury returned a verdict for the defendant, the court 'sent them back, after repeating the instructions given in the charge respecting the part of the judgment assigned to D. Caldwell, but they again returned a verdict for the defendant. Afterwards, the court made the following ruling upon a motion of the plaintiff for a new trial: This cause was twice tried, and at each trial the verdict was for the defendant. A new trial is again asked. As a juror, the court would not have found as the jury did; but this alone is not a sufficient reason for a new trial now. So far as concerns the questions of law raised in the motion, we deem it best to let a higher tribunal pass on the questions raised. Imperative instructions were given, or meant to be given, as far as relates to the part of the judgment assigned to D. Caldwell, Esq., and these the jury either disregarded or did not comprehend. In either case, the error caused thereby should be corrected. We therefore grant a new trial, unless the defendant assents, by writing to be filed in the case within fifteen days, that judgment shall be entered in favor of Annie D. Wilson, use of David Caldwell, for the sum of $1,314, with all costs, as of the date of the verdict and notwithstanding the verdict, being the amount of the judgment assigned to said Caldwell on February 2, 1884, with interest to the date of the verdict. —The defendant filed the writing specified in the order of the court, and judgment was entered in accordance therewith, whereupon the plaintiff took this appeal, assigning for error, inter alia: 1, 2. The refusal of plaintiff’s points.1 2 7. The answer to defendant’s point.7 10, 11. The refusal of plaintiff’s offers.10 11 1. The court erred in submitting to the jury, without a particle of sustaining evidence and against the evidence on both • sides, whether the judgment was originally given as collateral security for the debts in Huntingdon county: Hyatt y. Johnston, 91 Pa. 200; Selser y. Roberts, 105 Pa. 245. Moreover, that question was determined against the defendant on the proceeding to open the judgment. By the verdict in favor of the plaintiff on the issues framed by the court, the defendant’s mouth was closed on that point, and nothing was left as a defence but the question of a satisfaction, pure and simple, since the rendition of the judgment. The defendant cannot attempt to avoid the want of consideration for the alleged agreement of the plaintiff, after the judgment was entered, to hold it as collateral, by tacking to the promise the assertion that the judgment was originally void for want of consideration: Kincade v. Cunningham, 118 Pa. 501. 2. We should have been allowed to ask the defendant whether he did not tell Mr. Caldwell, after the entry of the judgment, that he did not sign the note. If he had admitted saying so, it would have been plain that the note could not have been given or held as collateral security, as such an admission would have destroyed the whole theory of the defence. If he had answered in the negative, a contradiction on this point, so vital, would have gone to his credibility. In his testimony, given on the rule to open the judgment, the defendant was sworn to ah averment that the note was signed in blank; that his signature was obtained by his co-defendant upon the representation that, it was to be filled up for some taxes and costs due in Bedford county, and without his having had any conversation with the plaintiff about giving her a note for anything. That testimony-was an absolute contradiction of the theory that the note was given as collateral security for the Huntingdon county debts, and should have been admitted. 1. On the trial of the issues framed under the rule to open the judgment, the court ordered the jury to find a verdict for the plaintiff, for the reason that all the matters alleged by the defendant could be tried and determined in the scire facias, saying to them: “ But to prevent your verdict from being after-wards considered as set up, or from being considered as res judicata on the question of collateral security, we direct you to return a verdict in the first case, which we will write and send out with you.” On the second trial of the scire facias, the defendant clearly showed that, by reason of matters occurring since the entry of the judgment, the purposes for which the note was held by the plaintiff had been served, and it was equitably paid. We do not believe it is the law that on the trial of a scire facias evidence cannot be given to explain what the original judgmenfowas given for. The leading case on this subject, Cardesa v. Humes, 5 S. & R. 65, simply rules that the defendant cannot set up a defence which he might have made in the original suit. 2. But the defendant may show that the plaintiff is attempting, in violation of an agreement, to use the judgment for a purpose not contemplated at the time it was given, as by showing that the judgment sought to be revived was given upon a promise to cancel it on the occurrence of an event which has since taken place : Hartzell v. Reiss, 1 Binn. 289. The assertion that the court submitted to the jury the original purpose of the judgment, without evidence and against the evidence on both sides, is utterly fallacious. There was evidence from which the jury could find that it was always held as collateral. The verdict for the plaintiff in the proceeding to open the judgment did not settle this question. It established nothing, but was taken pro forma, merely to simplify'the case, the court directing in the charge to the first jury that it should not be set up as res judicata. The rejected offers of the plaintiff were made to contradict the defendant in his statement, that his sister’s explanation to him was that the judgment was held as collateral. The testimony offered had no bearing on this point.
137 Pa. 282Reading Tr. Co. v. Reading I. Works (1890)
(а) A manufacturing corporation, though making large profits, declared no formal dividends. Its stockholders, however, were annually credited on its books with sums equal to six per cent of the value of their stock, as ‘ ‘ interest ” thereon; and they were allowed to draw out moneys from time to time which were charged against this interest credit. (б) Accounts current wered'endered annually to the stockholders, exhibiting the balances in favor of or against them, and upon the latter balances interest was charged as upon an indebtedness. During certain years, resolutions were in force, limiting the amount which stockholders might draw out to five per cent upon their capital stock: 1. One of the stockholders, who was also a director, having drawn out annually, for eight years before his death, sums aggregating more than the annual interest credit of six per cent, and having received without objection annual statements of his account which treated him as a debt- or for the excess, he must be considered as having assented thereto. (c) The corporation, making returns to the United States for the assessment of income tax in the names of the individual stockholders, reported their respective proportions of the profits earned by the company, paid the tax in their names, and charged the same to them, respectively, in the accounts kept with them: 2. Although the profits earned, and so returned, greatly exceeded the annual interest credits, this action of the company was not the equivalent of an actual division of profits, so as to cancel the debt of the stockholder for his overdrafts, inasmuch as the excess of profits remained invested in the business and was never credited. 3. Such debt of the stockholder to the corporation was made a lien upon his stock by a by-law which provided that no stock should be transferred so long as the holder thereof should be indebted to the company, without the consent of the board of directors, and the statute of limitations did not operate to destroy such lien. (d) The corporation was reorganized and re-chartered, after the death of a stockholder, thus indebted at his death for overdrafts above his annual interest credits. The resolution under which the reorganization took place, and which was unanimously agreed to, provided that the stock of the new corporation should be issued proportionately to the holders of that in the old: 4. Additional provisions in the i-esolution, that no stockholder indebted to the corporation should receive such new stock till his debt was fully paid, and, on his failure to pay it for sixty days, the directors should apply a sufficient amount of the stock at par to the extinguishment of the debt, and issue the balance to him, were reasonable and within the power of the corporation. 5. Wherefore, the representatives of such deceased stockholder were entitled to recover new stock only to the extent of the value of the old stock held by him, less the amount of his debt at the date of the distribution ; but payments on account of profits, made after his death through his executor to the widow, as legatee for life of the income of his estate, were not a valid charge on the stock. fi. When a corporation, in the distribution of a new issue of stock among its members, refuses to issue to a stockholder the amount to which he is entitled, he may recover as damages for such refusal the highest market price the stock afterwards attained, notwithstanding that, pending the suit, the corporation became insolvent and made an assignment for the benefit of creditors.
137 Pa. 302Township of McIntyre v. Walsh (1890)
1. Implied contracts arise under circumstances which, according to the ordinary course of dealing and common, understanding of men, show a mutual intention to contract: Hertzog v. Hertzog, 29 Pa. 165. (а) A township clerk, being requested by the auditors to produce the township books, promised to appear before them at a certain time. At the time appointed he failed to appear, and the auditors issued a subpoena which he refused to obey. (б) Being brought before them on an attachment, he refused to produce the hooks, whereupon the auditors committed him to jail. Afterwards it was agreed that he should produce the books and that the proceedings against him should be dropped: 2. A promise, upon the part of the clerk, to reimburse the township for its expenditures on account of the services of the auditors during the time they were endeavoring to procure the books, and the costs of executing the process issued by them, could not be implied in such case. 3. The terms upon which the difficulty between the auditors and the clerk was settled, excluded the idea of any recourse by one party to the other for anything growing out of or incident to that difficulty; wherefore, the township could not maintain assumpsit against the clerk for said expenditures.
137 Pa. 309Ulmer v. Ryan (1890)
(a) On August 3, 1881, tbe defendants, at Dubuque, authorized a broker in Chicago to “ offer five car loads of fully cured pickled shoulders, average not above twelve pounds, at not below six and one half cents, f. o. b. Dubuque. ” On August 5th, the plaintiff, at Pottsville, telegraphed to the broker to “ buy two cars s. p. shoulders if choice seven.” (5) On August 9th, the broker informed the defendants that he had sold two oar loads of sweet-pickled shoulders “ at 6.85 f. o. b. Dubuque,” and requested them to send the same to his order at Pottsville. The shoulders were shipped, and a bill of lading describing the meat as “ sweet-pickled shoulders” was forwarded to the broker, who reported the purchase and consignment to the plaintiff. (c) The bill of lading was indorsed by the broker, and forwarded with a draft on the plaintiff for the price, which was paid. Before the meat was shipped it was inspected and found to be in good condition. When it reached Pottsville, it was spoiled and found to be unmerchantable. The defendants had no knowledge of the plaintiff’s telegram to the broker at Chicago: 1. In such case, the telegram was not a part of the contract sued upon, nor an element in the decision of the cause; there was no implied warranty of the meat; the broker, when he bought, was acting for the plaintiff, but when he sold, he was acting for the defendants, and the rule, that notice to the agent is notice to the principal, had no application: Ryan v. Ulmer, 108 Pa. 332.
137 Pa. 314Delaware etc. R. v. Newton Coal M. Co. (1890)
137 Pa. 317Thompson Glass Co. v. Fayette Fuel-Gas Co. (1890)
137 Pa. 320Read v. St. Ambrose Church (1891)
3 OE PHILADELPHIA COUNTY. No. 35 January Term 1890, Sup. Ct.; court below, No. 70 June Term 1888, C. P. No. 8. On May 9, 1888, Harry Read and others, “ known as the St. Ambrose Guild,” brought assumpsit against the corporation of the Rector, ChurchWardens and Vestrymen of the Church of St. Ambrose, to recover damages for an alleged breach of contract in excluding the plaintiffs from a certain building. Issue.
137 Pa. 328Clement v. City of Philadelphia (1891)
APPEAL BY PLAINTIFP PROM THE COURT OP COMMON PLEAS NO. 2 OP PHILADELPHIA COUNTY. No. 206 January Term 1890, Sup. Ct.; court below, No. 182 September Term 1886, C. P. No. 2. On October 29, 1886, an action in debt was brought in the name of H. G. Clement, to the use of Samuel Josephs, against the city of Philadelphia, upon a contract entered into between Clement and the city. Issue. On February 11, 1889, a verdict was rendered in the plaintiff’s favor for $3,384. A rule for a new trial having been made absolute, the parties agreed upon a case stated showing the following facts: In 1874, Henry G. Clement became surety for a clerk in the employ of the city of Philadelphia. This clerk, in 1883, became a defaulter for a sum largely in excess of the amount of the bond, and on April 24, 1883, judgment was entered on the bond for the full amount thereof, $5,000. There were two sureties on the bond. The city has failed to collect anything on the judgment from the principal. On July 28,1885, Henry G. Clement entered into a contract with the city of Philadelphia to complete the repairs to South street bridge. Samuel Josephs became the surety on the bond accompanying said contract. On July 27, 1885, an agreement had been entered into between Clement and Josephs, (set out in full in the case stated,) under which Josephs was to advance to Clement, from time to time, the funds necessary to pay for the work and material needed in the completion of the west approach to the South street bridge, and, as security for the moneys thus advanced, Josephs was to receive all warrants for moneys to become due to Clement from the city for or on account of said work, with the right to apply the moneys arising from the warrants to his reimbursement. As a compensation for the moneys so advanced, and in lieu of interest thereon, Josephs was to retain out of the moneys arising from said warrants, in addition to the sum necessary to repay his advances, a further sum equal to half the net profits of Clement on the contract. This agreement was given by Josephs to his counsel, and the city had no knowledge of it. On the same day of the agreement, Clement gave Josephs an irrevocable power of attorney to receive from the city all warrants issued in payment for the work, and to execute all necessary vouchers and receipts. This power of attorney was filed with the city controller within three or four days after it was given to Josephs. ° The work was completed in accordance with the contract. On February 6, 1886, a warrant was drawn in favor of Cle ment for $3,825 and delivered to Josephs. On April 29,1886, a warrant was drawn in favor of Clement for $2,874.36, receipted for by him, but delivered to the city solicitor in payment of Clement’s indebtedness on the judgment against him entered in 1883. For the balance of the contract price, $325.64, a warrant was drawn in favor of Clement on December 21, 1886, and delivered to Josephs. Clement never authorized the bringing of this suit, except as authority may appear from the agreement, power of attorney, and facts above stated. Josephs advanced money to Clement, under the agreement before referred to, to the aggregate of $10,000, all of which was expended in the performance of the contract. Clement expended of his own moneys $100, and he still owes bills incurred in the performance of the contract to the extent of $2,500. The city claims to retain the $2,874.36 by reason of Clement’s indebtedness on the judgment before referred to. At the time the warrant for that amount was given to the city solicitor, the judgment was unpaid, and that sum was the amount due by Clement. If the court shall be of opinion that the defendant can retain said sum against the said Josephs, the equitable plaintiff, then judgment to be entered for the defendant; if otherwise, then judgment for the plaintiff for $2,874.36, with interest from May 1, 1886, either party to have the right to refer to the contract between the city and Clement, or to any ordinances of the city, as though set out herein. —After argument, judgment was entered on the case stated for the defendant; whereupon the plaintiff took this appeal, specifying that the court erred: 1. In entering judgment for the defendant. 2. In not entering judgment in the plaintiff’s favor for $2,874.36, with interest from May 1, 1886. 1. The contract on which Josephs was surety was awarded under § 26, act of May 13, 1856, P. L. 573, which, as modified by § 6, act of May 23, 1874, P. L. 233, required the contract to be awarded to the lowest responsible bidder, and required the contractor to give security for its performance. The first suggestion is, that a contract governed by such a law, in which the surety is guided only by that which inheres in the contract itself, is not subject to a set-off against the contractor which existed at the date of the contract, so as to prevent the surety from recouping his advances to perforin the work. The city knew of Clement’s indebtedness to it when the contract was awarded, and its duty was to give Josephs notice that such indebtedness was to be deducted. 2. The agreement between Clement and Josephs worked an equitable assignment, and by reason of the latter’s obligation as surety to the city, neither the city nor Clement, without payment of his advances, could deprive Josephs of the sums due. The filing of the warrant of attorney was sufficient notice to the controller to deprive Clement of any further right of disposition. As surety, Josephs spent $10,000 in completing ■ the contract, and he thus in any event suffers a loss of $3,000. His liability, when he became surety, was to expend of his own funds only such sum in excess of $7,025, the contract price, as should be required for the completion of the work. If the city’s contention is sustained, the burden of his suretyship is increased to the extent of $2,874.36. 3. The agreement between Clement and Josephs, and the power of attorney, were made on the faith of decisions of this court. The agreement was drawn from the precedent approved in Hart v. Kelley, 83 Pa. 289, construing the act of April 6, 1870, P. L. 56, which authorizes loans of money upon an agreement to receive a share of the profits of a business, as compensation for the use of the money. The power of attorney and the notice to the controller were drawn and given under the authority of Philadelphia v. Lockhardt, 73 Pa. 211. After notice, the city was bound to recognize the right of Josephs, and nothing outside of the contract could affect his right to be paid in cash. The city’s judgment against Clement did not enhance its rights; a judgment cannot be set off against an equitable assignee for value: Ramsey’s App., 2 W. 228. And Clement could not prevent the use of his name in this suit: Coffey v. White, 17 Phila. 236. 1. When the contract between Clement and the city was executed, the rights of the parties became fixed. The city could compel Clement to finish his contract, and,- upon so doing, he could recover the contract price, less the city’s set-off. The balance due him was the utmost he could claim, and no act of his could take the city’s right of set-off away. The agreement between Clement and Josephs was a partnership agreement, drawn under the act of April 6, 1870, P. L. 56, so as to protect Josephs from the liabilities of a general partner. It was not brought to the notice of the city. The power of attorney lodged with the controller gave no notice of it, and contained nothing that required the city to do aught else than to settle with Josephs as Clement’s attorney. It requires no argument to prove that the position of the attorney in fact was no higher nor better than that of Clement. 2. The city is asked by this action to give up the $2,874.36, appropriated to paying the judgment held by it against Clement, and the request should be backed up by clear reasoning and authority. The appellant’s counsel are driven to deny the city’s right of set-off, as against-a surety’s advances to perform the work. The city had no reason to anticipate that the surety intended to make such advances, and had no notice that Clement was doing the work with money other than his own. How, then, can it be logically reasoned that the city was under obligation to inform Josephs of its intention to deduct the judgment when it came to settle with Clement? Besides, the judgment against Clement was a matter of record, and easily ascertainable by Josephs. The advances made by Josephs give him no greater claim than any other creditor would have, who could show advances expended in the performance of Clement’s work. 3. The authorities relied on by the appellant are not applicable. Philadelphia v. Lockhardt, 73 Pa. 211, differs radically from this case. There has been no payment to Clement; all that the city owed him has been paid to Josephs. Ramsey’s App., 2 W. 288, does not fit the ease in hand, for Josephs asserts no claim against the city as an equitable assignee for value. He asserts no claim as surety, and as such he has not lost a dollar. The claim asserted is as a partner. He asserts it under a power of attorney which gave him the right to collect what the city owed Clement: and that he has been paid. The effect of his collecting the money sued for might be to evade the city’s right of set-off, for the partners may have made a settlement between them already. His position as partner, and the fact that the venture has been a losing one, give Josephs no right to maintain this suit, or to collect the balance retained by the city in payment of the judgment due it.
137 Pa. 335Long v. North British etc. Ins. (1891)
1. A provision in an insurance policy making actual payment of premium a condition of its validity, may be waived by the issuing agent, so far as to give time for such payment, notwithstanding a prohibition in the policy of any waivers of conditions by agents, where the established course of dealing between all parties has been for the agent to extend such credits, he becoming the accepted debtor of the company for the premium, and the assured becoming his debtor therefor: Lebanon Ins. Co. v. Hoover, 113 Pa. 591. (а) In an action on a fire policy, regularly made out and approved by the defendant company, the plaintiff testified that the defendant’s agents agreed to give him thirty days’ time for the payment of the premium; that he left the policy with them until it should be paid for, and that this arrangement was in accordance with the previous course of dealing between him and them. The agents testified for the defendant that the plaintiff objected to the rate, and went away saying he would consider whether to take the policy. (б) Before any further communication between the plaintiff and the agents, the property described in the policy was destroyed by fire. After the fire, "but within the period of credit named, the plaintiff sent to one of the agents a check for the premium, which was retained without objection until said period expired. The premium had been charged upon the agents’ books against the plaintiff, and they had charged themselves with it in their account with the company. These charges were allowed to stand for eleven days after the receipt of the check: 2. In view of the previous dealings between the plaintiff and the agents, their possession of the policy and the non-payment of the premium thereon were consistent with his allegation that a contract of insurance had been entered into; and there was sufficient evidence in the plaintiff’s favor to make it the duty of the court to submit to the jury the question whether a contract of insurance existed between the plaintiff and the defendant company. 3. An insurance agent who, testifying for his principal, has denied that the plaintiff accepted an insurance policy, under an agreement that he should have time to pay the premium, and who admittedly received from the plaintiff, after the destruction of the property and without objection, a check for the premium, and held it for two weeks, may be asked on cross-examination whether, if no fire had occurred, he would not have insisted on the payment of the check. I. When it is proposed by the defendant to prove declarations by the plaintiff’s son-in-law, while engaged in the performance of a certain act in the plaintiff’s absence, it must appear, or there must be an offer to show, that the declarant was acting at the time for the plaintiff, or by his authority, and the offer must embrace at least the substance of the declarations, that the court may judge of their relevancy and materiality : Williams v. Williams, 31 Pa. 312.
137 Pa. 352Drake v. Penna. R. (1891)
1. A passenger’s consent to the reasonable regulations of a railroad company, in regal'd to entering and leaving its trains, is implied; and for an injury which results to him from his voluntary disregard thereof, the company is nob liable: Sullivan v. Railroad Co., 30 Pa. 234; Penna. R. Co. v. Zebe, 33 Pa. 318; s. C., 37 Pa. 420. 2. When a passenger knows that on one side of the track no platform or place for alighting from trains has been provided, and that there is a safe and convenient platform, upon the other side, for the use of passengers in entering and leaving trains, such knowledge is notice of a rule of the company that passengers shall get on and off trains at said platform. 3. When a railroad company has provided safe and convenient means of ingress and egress to and from its trains, upon one side of its track, it has in this particular discharged its whole duty to passengers, and it is not bound to anticipate that, in disregard of its reasonable and known regulations, they will alight upon the opposite side. 4. Wherefore, a passenger, who, with notice of a regulation requiring him to alight from his train upon the south side of the track, voluntarily alights upon the north side, and, in alighting, is injured by falling into an unguarded excavation made by the railroad company, cannot recover damages from the company for his injuries. 5. The fact that the company has permitted persons residing north of its road to cross its right of way and track on foot, at different points in the vicinity of its station building, in going between different parts of the town, is not a waiver of its regulations affecting its passengers, nor a permission to them to alight on the north side. 6.. Evidence that occasionally a passenger would get off on the north side of the company’s trains, cannot affect the rights and duties of the passenger, when it is not shown that the railroad company consented to or had knowledge of such practice, nor is such testimony admissible: Penna. R. Co. v. Zebe, 37 Pa. 420.
137 Pa. 361Burns v. City of Bradford (1891)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF MCKEAN COUNTY. No. 78 July Term 1889, Sup. Ct.; court below, No. 246 February Term 1885, C. P. On February 2, 1885, Maria Burns brought case against the city of Bradford, to recover damages for personal injuries received by the plaintiff by a fall upon one of the sidewalks of said city. The declaration charged the city with negligence in suffering the sidewalk to be and remain in a dangerous and \insafe condition, in that a portion thereof was covered with snow and ice, and one side of it was upheaved several inches above the other. The defendant pleaded not guilty. At the trial on November 20, 1888, the following facts were shown upon the part of the plaintiff: One evening early in March, 1883, the plaintiff, then about thirty-three years of age, while passing along Pearl street in Bradford, slipped and fell upon the sidewalk, receiving permanent injuries to her right ankle. The walk upon which she fell was built of plank, and was about four feet in width. The plaintiff had passed over it twice, a few days prior to her accident, and at that time noticed nothing wrong with it. She testified that the evening on which she was injured was not very dark, and she thought it was a bright starlight night; that it had snowed a little in the afternoon, and had been a little muddy, but in the evening it got colder; that she went up the street on an errand and passed over this sidewalk without noticing any tip in it; that as she was returning down the street, her foot slipped while upon the walk and she fell, breaking a bone in her ankle ; that, while lying on the walk awaiting the coming of assistance, she observed the condition of the walk and noticed that it tipped toward the roadway of the street, the inside edge of it being over a foot higher than the edge on the side next the roadway ; and that she had never noticed this, and had paid no attention to it, before her fall. The plaintiff testified, also, that she was unable to say whether there was any snow or ice upon the walk. Mrs. Elizabeth Fitzpatrick testified for the plaintiff that the witness saw the plaintiff, at the latter’s house, on the evening of her injury, and was told by her where the accident had occurred ; that the witness had passed over the same sidewalk, and had fallen at the same place, two or three weeks before the plaintiff’s fall, and that the walk at that time tipped to the roadway, the side toward the fence being nearly a foot higher than the side toward the roadway. W. J. Alexander, a witness for the plaintiff, testified that he was one of the persons who helped to carry the plaintiff to her home after her injury, and described her situation and apparent condition just after her fall. On cross-examination, he testified, further, that there was nothing about the sidewall?; that attracted his attention to it as being dangerous in any way. Other testimony for the plaintiff tended to show that Pearl street was very much traveled. The defendant recalled W. J. Alexander, and called L. D. Crandall, the other person who assisted in carrying the plaintiff home after her injury, and several other witnesses who were in the habit of using Pearl street. The testimony of these witnesses tended to prove that, at the time of the plaintiff’s injury, the sidewalk did not tip toward the roadway in the manner described by her, but that it was nearly level from side to side, the outer edge of it having been raised by the frost a little higher than the edge next the fence, and the difference in level between the two not being more than three or four inches ; that it was in good and substantial repair, and there was nothing about it to attract attention as unsafe; and that there were level spaces, sodded over, on each side of the planks, upon which there was room for a person to walk. At the close of the testimony the court, Olmsted, P. J., charged the jury respecting the duty of the city to keep the sidewalks in repair; submitted to them the disputed questions of fact arising upon the testimony; instructed them that if the walk was in the condition described by the plaintiff and Mrs. Fitzpatrick, and had been in that condition for two or three weeks, the plaintiff would be entitled to recover, unless she stepped on it with knowledge of its condition; stating for the guidance of the jury the rule governing the measure of damages. Among other points presented to and answered by the court, was the following point of the defendant: 1. There is no such evidence of actual or constructive notice of the dangerous condition of the walk as would render the city liable for the injury accruing thereon, and your verdict must be for the defendant. , Answer: We cannot affirm this point. It asks us to withdraw the ease from the jury. We think there is some evidence in the case that should he submitted to the jury upon this question.4 The jury returned a verdict for the plaintiff for $2,000. The plaintiff having remitted the sum of $800, in accordance with a condition prescribed by the court, a rule for a new trial was discharged, and judgment entered in favor of the plaintiff for $1,200. Thereupon the defendant took this appeal, assigning for error, inter alia: 4. The answer to the defendant’s point.4 1. There was no evidence at all of actual notice to the defendant that the walk was out of repair, and no evidence that the walk was in such condition that constructive notice could be presumed. From the testimony of the plaintiff herself it is evident that the walk, when she first passed over it on the evening of her accident, could not have been in the condition described by Mrs. Fitzpatrick; for no reasonable being could pass over a sidewalk four feet wide, and tipped so that one side was a foot higher than the other, without noticing it. A walk in that condition would incline at an angle of from thirty to forty degrees. The fair inference from the plaintiff’s testimony is that its condition changed between the time she went up the street and the time she came back. This is certainly a much fairer inference than the one submitted to the jury. The action of frost is quick, and the condition of the walk might have changed in that short time. 2. To visit the city with notice of the alleged defect, something more’ is necessary than the naked testimony of two persons, who say they fell at a certain point, at times three weeks apart. To make the city responsible, the defect must be so notorious as to be obvious to all who had occasion to pass over the walk: Rapho v. Moore, 68 Pa. 404; Mauch Chunk Bor. v. Kline, 100 Pa. 119; Otto Tp. v. Wolf, 106 Pa. 608; 2 Dillon on Mun.. Corp., 1062, note; New York v. Sheffield, 4 Wall. 189. There is no evidence of such a defect. The testimony shows that a large number of people were in the habit of using this walk regularly, and not one of them is called to show that it was in a defective condition. The plaintiff passed over it on a bright, clear evening, one half hour before she was injured, and it was not at that time in such a condition that she noticed its dangerous character. How, then, can the city be charged with constructive notice ? If it was in such a condition that the city was bound to notice it, then the plaintiff was guilty of contributory negligence, as the testimony shows that she could have avoided the walk: Crescent Tp. v. Anderson, 114 Pa. 643; Erie City v. Magill, 101 Pa, 616; Dehnhardt v. Philadelphia, 15 W. N. 214. The accident occurred about the first of March. Bradford’s latitude and elevation warrant the presumption that the condition of the sidewalk described by Mrs. Fitzpatrick was attributable to the action of the frost, and continued until after the time of the plaintiff’s accident. If, then, this sidewalk was in the condition, described by Mrs. Fitzpatrick, for two or three weeks before the accident occurred, the defendant was visited with constructive notice thereof. It is not the law that the defect must be known to the public generally, in order to visit the city with constructive notice. It is sufficient if the defect be such that those who used the sidewalk might readily have observed it. A sidewalk four feet wide, with one side of it from four inches to a foot higher than the other, is defective to the extent referred to. The fact that a half dozen persons, of the hundreds who daily passed over it, did not observe the defect, ought to have no weight in determining the facts constituting constructive notice. The city was chargeable with notice of it, but the plaintiff was not; she was bound only to exercise reasonable care and prudence, and was not bound to have her mind directed at every moment to the condition of the sidewalks: Dillon on Mun. Corp., 1007.
137 Pa. 368Blygh v. Samson (1891)
No. 83 January Terra 1890, Sup. Ct.; court below, No. 161 February Term 1888, C. P. On January 23, 1888, Patrick Blygh brought assumpsit against J. A. Samson and J. C. French, copartners as J. A. Samson & Co., upon a promissory note for $475, with interest, dated May 17, 1887, drawn by J. A. Samson & Co., and payable to the order of the plaintiff on January 2, 1888. The defendants pleaded non-assumpsit, payment and set-off.
137 Pa. 378Ogle v. Baker (1891)
1. A judgment or decree procured through the fraud and collusion of the parties to it, for the purpose of defrauding a third person, may be at-' tacked by such person in a collateral proceeding, because he has no standing to appeal from it, or to require that it be vacated or reversed. 2. A party to the judgment, however, who alleges that it was obtained against him by’fraud, may assail it directly, by appeal from or motion to open it, but he cannot impeach it collaterally, in an action to recover back money collected by regular process issued upon it. 3. A subsisting judgment, entered upon warrant of attorney, is no more subject to collateral attack than one obtained in open court; and the remedy of a defendant therein, alleging that the warrant was forged, and that, having notice, he was prevented by fraud from defending, must be by an application lo open.
137 Pa. 385Paxson v. Nields (1891)
A'note given by a widow for the payment of a debt due from her deceased husband’s estate, which estate is insolvent, is void in law without a new consideration; and such consideration will not be raised by an agreement on the part of the creditor that the note will be renewed from time to time after maturity: Leonard v. Duflin, 94 Pa. 218; Bentley v. Lamb, 112 Pa. 480, distinguished.
137 Pa. 389Commonwealth v. Reynolds (1891)
APPEALS BY DEPENDANTS PROM THE COURT OP COMMON PLEAS OP LUZERNE COUNTY. Nos. 6, 84 January Term 1891, Sup. Ct.; court below, Nos. 125, 109 October Term 1890, C. P. On June 11, 1890, upon the petition of Mr. Alfred Darte, District Attorney, filed to No. 109 October Term 1890, in tbe court below, the court awarded a writ of quo warranto against H. O. Reichard and fourteen others, requiring the defendants to show by what authority they claimed to exercise the office of school directors in the school district of the city of Wilkes-Barre. Issue. On June 13,1890, upon a similar petition, filed to No. 125 October Term 1890, a writ of quo warranto was awarded against G. M. Rejniolds and five others, requiring the defendants to show by what warrant they claimed to have and enjoy the powers of school directors of said city. Issue. The following conceded facts appeared in the pleadings in the two cases: The city of Wilkes-Barre was incorporated by the special act of May 4, 1871, P. L. 539, comprising within its area the whole of the former borough of Wilkes-Barre, and parts of the north and south districts of Wilkes-Barre township. The city was divided into fifteen wards. By § 28 of the act, it was provided that the wards of the city, which had been a part of the north district of said township, should, together with the remaining portion of said north district, constitute an independent school district, to be called the First School District of the city of Wilkes-Barre; that the wards of the city, which had been a part of the south district of the township, should, in connection with the remaining portion of said district, constitute an independent district, to be called the Second School District of the city of Wilkes-Barre; and that the wards, which had constituted the borough of Wilkes-Barre, should be an independent district,'to be called the Third School District of said city. The act of May 23, 1889, P. L. 274, provided that any city of the third class, incorporated after its passage, should constitute a single school district; and ordained regulations for the organization and management of such districts, directing, inter alia, that the members of the board of school controllers of the district should be elected by wards, each ward electing one member in cities composed of fifteen or more wards. The ninth and tenth sections of the act provided a method by which cities of the third class, incorporated prior to its date, might accept and become subject to its provisions, through action by the board or boards of school directors of the city, formally declaring their purpose so to do, the acceptance to take effect upon being filed and recorded in the office of the clerk of the Court of Quarter Sessions of the proper county. On May 31, 1889, an act of assembly was approved, repealing § 28 of the act incorporating the city of Wilkes-Barre, with the proviso that the act should not go into effect until from and after the first Monday of June, 1890: P. LI 418. . In January, 1890, the city of Wilkes-Barre being then a city of the third class, but not having accepted the provisions of the act of May 23, 1874, P. L. 230, the/directors of the several school districts of the city, residing within its limits, adopted formal resolutions accepting the provisions of the act .of May 23, 1889, and certified copies of these resolutions were presented to the clerk of the Court of Quarter Sessions, for filing, on February 10, 1890.* At the regular election held on February 19, 1890, doubts existing as to what statute should govern the election, two tickets were voted for. The citizens elected by wards, in accordance with the provisions of the act of May 23, 1889, a board of fifteen school controllers, who were the defendants in the case of the Commonwealth v. Reichard and others, and there was also elected, by the votes of the people at large, a board of six directors, in accordance with the provisions of the common school act of May 8, 1854, P. L. 617. The defendants, in the case of Commonwealth v. Reynolds and others, constituted the board of school directors of the Third School District of the city of Wilkes-Barre, in office at the time of the passage of the acts of May 23, and May 31, 1889, having been elected under the provisions of § 28 of the act incorporating the city. They alleged that under § 3, act of May 8, 1854, P. L. 617, their powers and duties as school directors continued until the proper election and organization of a new board of directors, and that no such board had been lawfully elected or appointed, and organized, contending that the act of May 23, 1889, P. L. 274, was wholly unconstitutional, and that, as the act of May 31,1889, P. L. 418, was, by its terms, not to go into effect until from and after the first Monday in June, 1890, there was no authority for the election of a board of school directors for the entire city, in February, 1890. The answer of the defendants in each case alleged that the election of the board of six directors, chosen on February 19, 1890, was illegal, for the reason that no legal notice of such an election was given beforehand, nor was there general knowl.edge among the electors of the city that such officers would be chosen. It was agreed by the parties that the question of fact thus raised should be determined by the court, upon testimony heard, and the court found the facts to be as follows: 1. The high constable’s proclamation did not give notice of an election of six directors, by the voters at large, but did give notice of an election of one director, by the electors of each ward. 2. Three thousand seven hundred and fifty votes, in the aggregate, were cast in the several wards for fifteen ward directors, under § 2, act of May 23,1889, which we have held to be unconstitutional. One thousand one hundred and eighty-four votes for a board of six directors, were cast in the city at large under the act of 1854. The maximum vote cast for any officer was 4024 for the office of high constable. 3. The fact that the city had- accepted the provisions of the act of May 23,1889, and therefore had become a consolidated school district, was generally known. That there would be an election of six directors, was discussed and advised in the daily newspapers and by citizens, and tickets were generally distributed at the several polls. 4. There were no opposing candidates for election to the board of six, and it is fair to infer that this fact, rather than the lack of general knowledge, accounts for the cómparatively small number of votes. The two causes having been heard at the same time, the court, Rice, P. J., on July 18, 1890, entered judgment for the commonwealth in each case, holding: (1) That § 2, act of May 23, 1889, which provides for the election of school directors by wards in cities of the third class governed by its provisions, was unconstitutional, as a local or special law, inasmuch as the management of public schools is not one of the corporate powers of cities of the third class, and school directors are not corporate officers thereof, and there are no manifest peculiarities of school districts, coterminous with cities of either of the three classes, which clearly distinguish them, as a class, from school districts in other cities, and imperatively demand legislation for their government not adapted to the needs of others, and, therefore, that the board composed of the fifteen directors elected by wards in February, 1890, had no lawful existence. (2) That § 1, act of May 23, 1889, providing that each city of the third class subsequently incorporated should constitute a single school district, and § 9, in so far as it provides that existing cities of that class may become single districts by acceptance of the act, were constitutional and valid, and that by accepting said act, the city of Wilkes-Barre became a single school district, so that the electors at large, and not by wards, were entitled, under the act of May 8, 1854, P. L. 617, to elect a board of six school directors at the municipal election in Feb' ruary, 1890. And (3) that such an election having been held, and the persons receiving the certificates of election having duly organized, and it not appearing clearly that there was lack of general knowledge that such a board was to be elected, the six persons so chosen were entitled to act and perform the duties of directors, at least until duly ousted. —The defendants, in Commonwealth v. Reynolds and others, thereupon took the appeal to No. 6 January Term 1891, specifying that the court erred: 1. In entering judgment against said defendants. 2. In holding § 1, act of May 23, 1889, P. L. 274, constitutional. 3. In holding § 9 of said act constitutional. And the' defendants, in Commonwealth v. Reichard and others, took the appeal to No. 84 January Term 1891, specifying that the court erred: 1. In entering judgment against the appellants. 2. In holding § 2, act of May 23,1889, unconstitutional. The court erred in holding § 2, act of May 23, 1889, to be unconstitutional. A statute prescribing how many members shall constitute a board of school directors, and how they shall be elected, can hardly be regarded as a regulation of “the affairs ” of the school district; and if the constitution of a board is not among such affairs, it is not one of the subjects upon which the constitution inhibits special or local legislation. If, however, § 2 can be regarded as regulating the affairs of the district, still, such legislation, based upon classification, is valid, being justified by the necessity of adapting the details of the school system to the varying needs and circumstances of cities diverse in their characteristics: Wheeler v. Philadelphia, 77 Pa. 351; Walker v. Cincinnati, 21 Ohio St. 14 (8 Am. Rep. 24) ; State v. Brewster, 3 Am. & Eng. Corp. C. 551; State v. Powers, 38 Ohio St. 54 ; Scowden’s App., 96 Pa. 425 ; Ayars’ App., 122 Pa. 266 ; Kilgore v. Magee, 85 Pa. 401. Counsel for the commonwealth in No. 84 presented no paper-book, and were not heard. The act of May 23, 1889, P. L. 274, relates only to cities of the third class thereafter incorporated, and to such existing cities of that class as may, by vote of their directors, accept its provisions. It provides for the cities to which it relates various regulations which are inconsistent with and essentially different from those ordained by the common-school law of May 8,1854, P. L. 617. We claim that the act of May 23, 1889, violates several provisions of the constitution. 1. It violates § 7, article III., prohibiting special legislation regulating the affairs of school districts, changing school districts, creating school districts, or regulating the management of public schools; and also § 1, article IX., providing that all taxes shall be levied and collected under general laws. It is unnecessary to discuss §§ 2 to 6 of the act, as the court below is with us in holding them unconstitutional, and this position is sustained by the decisions of this court: Rúan St., 132 Pa. 257 ; Ayars’ App., 122 Pa. 266. The question for discussion here is as to the validity of §§ 1 and 9. The classifications contained in § 1 make it void. The power to classify cities extends only to matters relating to the exercise of corporate powers, or to corporate officers and their powers and duties : Rúan St., supra. It does not include the classification of school districts in cities, and no imperious necessity therefor has been shown. Furthermore, the legislature can no more classify school districts, according to the date of the creation of the city, than it can make any other time or geographical classification. If local results are or may be produced by a statute, it is unconstitutional: Scranton Sch. D.’s App., 113 Pa. 190; Frost v. Cherry, 122 Pa. 417. 2. Nor can §§ 1, 7 and 9 stand, when the rest of the act falls. The statute has not two distinct objects, but its one purpose is to regulate school districts in cities of the third class, by giving them a different scheme of government from districts in other cities. The court has no power wholly to change this intent, and to substitute a purpose plainly never contemplated by the legislature. The different provisions of the act are so interwoven, that it must speak as an entirety: Commonwealth v. Potts, 79 Pa. 164; Ayars’ App., 122 Pa. 266; Reading v. Savage, 124 Pa. 328. And, as amended by the court below, the statute offends also against § 3, article III., of the constitution, because its title does not fit it when so amended. There is no purpose mentioned in the title that is accomplished by the act, as the court below left it, and such a title, if the act were composed of only §§ 1, 9 and 10, may reasonably be characterized as misleading. The title must clearly give notice of the legislative purpose: Sewickley Bor. v. Sholes, 118 Pa. 165; Ridge Ave. Ry. Co. v. Philadelphia, 124 Pa. 219. This title gives no notice that the act affects the township districts, and for that reason it is inadequate: Beckert v. Allegheny, 85 Pa. 192; Airy St., 113 Pa. 281. 3. The act violates § 1, article XI., of the constitution, vesting the legislative power of the commonwealth in the general assembly, inasmuch as the breath of life comes to the act from the school boards, and not from the legislature. The legislature cannot delegate its power. There are a number of recognized instances in which the legislature may submit to the people of a locality a question as to the executive administration of a law, complete in itself and operative throughout the state, but the act before us, as amended by the court below, is clearly distinguishable from those cases. There is no person, thing or corporation in the state upon which it can operate, except by the affirmative act of school directors in certain cities ; it provides no rule of action as to circumstances actually existing or contingently possible, except by the intervention of a board of school directors who are to say when it shall go into effect; and it is not a law, but merely an invitation to school directors to make a law. What the legislature may not do directly, it cannot accomplish in this manner: Frost v. Cherry, 122 Pa. 417. The act creates confusion and uncertainty, and tends to diversity, and is therefore void: Scranton Sch. D.’s App., 113 Pa. 190. By the general school law every city, not subject to a special law, is a single school district governed by six directors, to be chosen by the electors at large: §§ 1, 5, act of May 8, 1854, P. L. 617. Six directors were so chosen in Wilkes-Barre on February 19, 1890, but the validity of their election is denied by the appellants, on the ground that the city was then subject to a special law, to wit, § 28 of the act of incorporation. 1. Section 28 of the act incorporating Wilkes-Barre is unconstitutional and void ab initio, because relating to a subject not expressed in the title, which makes no reference to schools: Second Constitutional Amendment of 1864; Ayars’ App., 122 Pa. 266. That section, however, was repealed by the act of May 23, 1889, P. L. 274, which constituted every city of the third class, thereafter incorporated, a single school district, and empowered school boards, in existing cities of that class embracing more than one district, to accept the act. Wilkes-Barre’s school boards having accepted it, it is claimed by the appellants that said act of 1889 is unconstitutional, but the question in this case is narrowed down to §§ 1 and 9, and these operate simply as a repeal of a special law. 2. It is constitutional to legislate that all cities of a certain class shall be single school districts. This does not involve the power to classify school districts in respect to government, and does not constitute a classification of cities for school purposes; it simply defines the geographical boundaries of school districts in the only natural and convenient manner, to wit, by reference to the geographical boundaries of existing municipalities. It is constitutional to confine such an act to cities afterwards incorporated or accepting its provisions. The omission of existing cities not regulated by special law, is the omission of mere surplusage, as they are already single districts; and the omission of cities which are regulated by special law, until they accept the act, is not a violation of the constitution: Evans v. Phillipi, 117 Pa. 226; Reading v. Savage, 124 Pa. 336. 3. The delegation to the school boards within the city limits of the power to accept the act, is constitutional: Locke’s App., 72 Pa. 496; Reading v. Savage, 124 Pa. 328. There are two distinct objects in the act: consolidation and government. The first is effected by §§ 1, 7, 8 and 9; the second by §§ 2, 3, 4, 5 and 6. The first set of sections is territorial in scope and the second governmental. The two are absolutely distinct and not essential to each other. Therefore §§ 1 and 9 can be sustained, though the other sections be pronounced unconstitutional: Smith v. McCarthy, 56 Pa. 359; Dewhurst v. Allegheny, 95 Pa. 437; Lea v. Bumm, 83 Pa. 237; Fox’s App., 112 Pa. 337 ; Euan St., 132 Pa. 257. The title gives distinct notice of the constitutional purpose of the act, to wit, consolidation, and was sufficient notice to the township districts of the change the act would effect as to them. 4. But even if the act of May 23, 1889, be overthrown, the express repeal, by act of May 31, 1889, P. L. 418, of the local law by which the separate districts were’created, supports the relator’s contention. It may be argued that, as the act of May 31, 1889, did not take effect until the first Monday in June, 1890, the single district did not exist at the time of the election in February, 1890. But we submit that the election in February of six directors for a district, sure to exist in June at the beginning of the next school year, is valid. If this be not so, these separate districts are maintained until February, 1891, contrary to the express legislative command that they should cease to exist in June, 1890.
137 Pa. 407Commonwealth v. Myers (1891)
PETITION OF DEFENDANT TO BE ADMITTED TO BAIL, PENDING AN APPEAL FROM THE COURT OF OYER AND TERMTNER OF ALLEGHENY COUNTY. No. 43 October Term 1891, Sup. Ct.; court below, No. 22 June Term 1890, O. & T. James E. Myers having been indicted and tried for the murder of Margaret Douglass, in the Court of Oyer and Terminer of Allegheny county, was convicted by the jury of murder in the second degree, and on December 20, 1890, was sentenced bjr the court to imprisonment in the Western Penitentiary for the period of eight years and three months. Thereupon the defendant, having entered an appeal to the Supreme Court, presented a petition, addressed to Mr. Justice Clark, which averred the petitioner’s indictment, trial, conviction and sentence, and the appeal taken by him therefrom; “ that error was committed in the trial of said cause by the court trying the same; ” that the appeal was taken for the purpose -of obtaining relief from such error, and that the petitioner had not yet been removed to the penitentiary, but was in confinement in the jail of Aliegheny county; praying that the petitioner be admitted to bail pending the appeal. Upon this petition the Supreme Court made the following order: Per Curiam: January 5, 1891. No reason appearing why the petitioner should be admitted to bail, the prayer of the within petition is Refused. filed a motion for a re-consideration of the foregoing order, for the following reasons : 1. That counsel was not aware, until said order was made, that it was necessary to assign causes for admitting a defendant to bail, in a bailable case, pending an appeal to the Supreme Court. 2. That the petition of the appellant is an exact copy of similar petitions filed in the cases of Bowser v. Commonwealth, Weston v. Commonwealth, and McClain v. Commonwealth, upon which orders were made admitting to bail, and therefore it is according to the practice of this court. 3. That the reasons assigned in arrest of judgment are legal reasons, upon which the defendant has a right to be heard on his appeal, and for such hearing he cannot properly prepare whilst in prison. 4. That the appellant is the possessor of property and other interests in Allegheny county, amounting to about $79,000, requiring his attention, and if not allowed his release until the regular term of the Court for the Western District, he must suffer well nigh irreparable loss. —The motion prayed, further, for leave to file affidavits in in support of the reasons assigned, and for a hearing.
137 Pa. 411Commonwealth v. Pennsylvania Co. (1888)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY. No. 29 May Term 1887, Sup. Ct.; court below, No. 50 April Term 1886, C. P.
137 Pa. 412Commonwealth v. Equitable Beneficial Ass'n (1890)
1. A contract of insurance is purely a business adventure, not founded on any philanthropic, benevolent or charitable principle; and the design and purpose of an insurance company, and the dominant and characteristic feature of its contract, is the granting of an indemnity, or security against loss, for a stipulated consideration. 2.But thedesign of what are known as benevolent societies, which are purely of a philanthropic or benevolent character, is, not to indemnify, or secure against loss, but, from the contributions of members, to accumulate a fund to be used in their own aid or relief, in the misfortunes of sickness, injury or death. («) An association, incorporated as a beneficial society under the act of April 29, 1874, P. L. 73, being called upon by quo warranto to show by what authority it exercised the franchise of making insurance contracts, the issue, joined upon a plea denying such exercise, was tried without a jury under the act of April 22, 1874, P. L. 109 : 3. The decision of the court, in such ease, not stating separately and distinctly the findings of fact from which the conclusion that the defendant had engaged in the making of insurance contracts was drawn, as required by § 2 of said act of 1874, but referring to the facts found in another and like cause, the judgment of ouster entered was reversed.
137 Pa. 421R. & A. Heckscher & Co. v. Amer. T. & I. Co. (1890)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP DAUPHIN COUNTY. No. 3 May Term 1890, Sup. Ct.; court below, No. 353 June Term 1889, C. P. • On April 13, 1889, Austin S. Heckscher and Richard P. Heckscher, doing business as R. & A. Heckscher & Co., brought assumpsit against the American Tube & Iron Company, filing a statement of claim, verified by affidavit, charging that the defendant was indebted to the plaintiff in the sum of $3,841.87, with interest thereon from March 27,1889, said sum being the unpaid balance upon a book-account for skelp-iron sold and delivered to the defendant,'a copy of which account was annexed to the statement of claim as a part thereof. The copy of the account annexed exhibited various sales of iron to the defendant, at different dates between November 2, and November 28, 1888, aggregating $29,202.22, and gave credit, as of date January 25, 1889, for three notes for $8,453.45 each, and exhibited a balance due of $3,841.87. The defendant filed an affidavit of defence, made by A. S. Matherson, its general superintendent, which, as afterwards amended by a supplemental affidavit, set forth the nature and character of the defence as follows: “ The iron specified in the claim of the plaintiff, as filed in this suit, was purchased by the defendant from a firm named Cooper, Rej'nolds & Co., then operating the Lochiel Rolling Mills, near the city of Harrisburg, and of which firm the plaintiff was sole agent for the sale of skelp-iron manufactured by them; and that said plaintiff, in payment for said iron, accepted sundry drafts drawn by said defendant to the order of said Cooper, Reynolds & Co. for the aggregate amount of $25,360.35; and the said Cooper, Reynolds & Co. on the 26th day of November, 1888, being then indebted in the sum of $3,841.87 to the defendant, assigned and transferred to said defendant, $3,841.87, the residue of the total price of said iron, as per transfer of that date a copy of which is as follows : “ ‘Harrisburg, Nov. 26,1888. “ ‘ On demand, pay to American Tube & Iron Company, or order, three thousand eight hundred and forty-one eighty-seven one-hundredths dollars out of the funds now in your hands, or hereafter to come into your hands, from iron sold, or hereafter to be sold, to the American Tube & Iron Company, after paying hands in accordance with our agreement. Value received, and charge to account of “ ‘ Cooper, Reynolds & Co. “‘To R. & A. Heckseher & Co., 238 South 3d Street, Philadelphia, Pa.’ ” “ Whereby the whole price of said iron, including the claim now in suit, was paid by said defendant, of which assignment the said plaintiff was then and there notified, by presentation thereof to him.” A rule for judgment for want of a sufficient affidavit of defence, after argument was made absolute by the court, McPherson, J., in an opinion, which, after stating the defence set up by the defendant’s affidavit, proceeded as follows: The defence, however, is incomplete. It does not aver that the plaintiffs had any fund in their hands upon which Cooper, Reynolds & Co. had a right to draw, or which they could assign; neither does it aver that any such funds came into the plaintiffs’ hands after November 26th. We are left to infer, what is not denied to be the fact, that the fund referred to was simply the balance due by the defendant upon the account now in suit, and that the transaction was a circuitous attempt to give the defendant a receipt in full. Drawing this inference, however, and assuming that Cooper, Reynolds & Co. had some control over this balance, their own draft shows that another claim than the defendant’s was to be first paid; “ after paying hands in accordance with our agreement.” But, what this agreement was which is thus made part of the transaction; how far it was carried out; how much was paid to the hands, and how much, if any, was then left of the so-called fund, we are not informed, although these matters are evidently necessary to the defence. In brief, if the fund drawn upon or assigned belonged to the plaintiffs, Cooper, Reynolds & Co. could not apply it to their own debt; and, if it belonged to the latter to any extent, as we assume it did, they themselves directed it to be first applied to pay the hands, and there is no averment that it was not needed and used for that purpose. It seems-plain to us, that the affidavits fail to state the whole transaction, and fail to aver that there was any fund upon which the-draft or assignment could take effect. We direct judgment to be entered for want of a sufficient, affidavit of defence, the amount to be liquidated by the pro-^ thonotary. —Judgment having been entered, the defendant took this appeal, specifying that the court erred: 1. In entering judgment for want of a sufficient affidavit of defence. 1. All the allegations in the affidavit of defence, and the inferences deducible therefrom, are to be taken as absolute verity. The iron being the property of Cooper, Reynolds & Co., they had the right to direct their agents to apply the money as they desired, and the fact that they gave the order indicates-clearly that they intended the defendant company to retain the amount it owed. The order was an assignment of so much money as is specified therein, and was complete. The assignors retained no control of the fund. The order was drawn on a particular fund, and contained no power of revocation. Such an order is a valid assignment in equity: Christmas v. Russell, 14 Wall. 84; Trist v. Child, 21 Wall. 447. The fundholder is bound from the time of notice: Rodgers v. Hosack, 18 Wend. 334. Assignments of parts of a fund have been recognized in Pennsylvania: Caldwell v. Hartupee, 70 Pa. 74; Greenfield’s' Est., 24 Pa. 240. 2. Besides this, the conceded facts show clearly that the defendant was entitled to a set-off for the amount in dispute. The fact that the iron was sold by the agents of the owners, can. make no difference on tins point, and cannot deprive the defendant of the statutory right of set-off. Cooper, Reynolds & Co. were the owners of the iron, and they were indebted to the defendant in the amount of its price. Even if the order was invalid, the defendant can set off that indebtedness against the price of the iron. Confessedly, the defendant had an honest and bona fide claim against them, equal to the whole amount sued for and due at the time the action was brought, and Cooper, Reynolds & Co., were insolvent. It would be a great wrong to the defendant, and a palpable violation of both the letter and the spirit of our defalcation laws, so to administer the affidavit of defence law as to allow a recovery in this action. 1. There is no doubt that there may be a valid assignment of a specified fund or part of a fund, but an affidavit of defence must show, not only an attempted assignment, but also that there was a fund subject to assignment, and its amount. The defence that the claim in suit was paid by the attempted assignment by a third party of a fund which is not shown, nor even alleged to have existed, is insufficient in law. The affidavit does not deny that the defendant owes the plaintiffs the amount sued for. Nor, is the affidavit sufficient to make out a defence of set-off. There is no averment of indebtedness after November 26, 1888, nor are the particulars of the alleged indebtedness disclosed, which must be done ^ Endlich on Aff. of Def., § 515; Bryar v. Harrison, 37 Pa. 233; Louchheim v. Becker, 3 W. N. 449; McCracken v. First R. P. Church, 111 Pa. 106. 2. Not every debt is available as a set-off; for example: the consideration of a parol contract within the statute of frauds : Sennett v. Johnson, 9 Pa. 335; a debt for which a suit is pending, on appeal from arbitrators by the party offering the set-off: Good v. Good, 5 W. 116; a judgment which has been opened: Bare v. Hertzler, 16 Leg. Int. 108; a debt not due when the suit was brought: Morrison v. Moreland, 15 S. & R. 61; ora debt barred by limitation: Taylor v. Gould, 57 Pa. 152. The affidavit should allege that the debt proposed to be set off was unpaid: Smyth v. Armstrong, 2 W. N. 383. The alleged indebtedness of Cooper, Reynolds & Co. is not sufficiently set forth to be available in a suit to which that firm is a party, and certainly cannot avail as a defence to a suit in which it is in no way interested. What the defendant is really trying to set off is a supposed indebtedness from the plaintiffs to Cooper, Reynolds & Co., which is not specifically averred.
137 Pa. 428Jacques v. Fourthman (1890)
1. A peremptory nonsuit is in the nature of a judgment for the defendant on demurrer to evidence; and, if there is any evidence, more than a mere scintilla, which would justify an inference of the disputed fact upon which the plaintiff’s right to recover depends, it must be submitted to the jury: Hill v. Trust Co., 108 Fa. 1. 2. When the plaintiff claimed properly in notes as a gift from her deceased brother, and proved her possession of them immediately after his death, with evidence of acts and declarations of the deceased in his lifetime, and other circumstances, appropriate to a gift of them, as alleged, it was error to refuse to submit the question of fact to the determination of the jury.
137 Pa. 433Estate of Young (1890)
137 Pa. 443Kelly v. McGehee (1890)
APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS OF FULTON COUNTY. No. 7 May Term. 1890, Sup. Ct.; court below, No. 181 January Term 1888, C. P. On January 8,1887, L. C. Kelly entered against “Laura Mc-Gehee, owner or reputed owner, and Charles McGeh.ee, her husband, and John A. Snyder, contractor, defendants,” a mechanics’ lien in the following form : “ L. C. Kelly, above named, hereby files his claim or statement of demand for seventy-five dollars for materials to wit: No. 2 white pine shingles, furnished said John A. Snyder, contractor, within six months last past, and against the building and the ground covered thereby and so much other ground immediately adjacent thereto and belonging to the said Laura Mc-Gehee, owner or reputed owner, as may be necessary for the ordinary and useful purposes of the same, and sets forth as follows, to wit: “1. The name of the party claimant is L. C. Kelly. The name of the owner or reputed owner is Laura McGehee. The name of the contractor, at whose instance and request the work was done and materials furnished, is John A. Snyder. “ 2. The amount claimed to be due is seventy-five dollars for 20,000 white pine No. 2 shingles, at $3.75 per 1000, furnished to contractor with the knowledge and consent of said Laura McGehee, at her request and the request of her said husband, for the impfovement of her separate estate, within six months last past, for and about the erection and construction and upon the credit of the building hereinafter described, the particular items, amounts and dates when said materials were furnished, being specifically set out in the bill hereto annexed and made part of this claim. “ 3. The said building is located on a lot or piece of ground situate.....The said materials, so furnished, were actually applied to the improvement of said Laura McGehee’s separate estate, and were necessary for the use and enjoyment of her separate property. “Witness the hand of the said L. C. Kelly,” etc. On December 27, 1887, the plaintiff issued a scire facias on said lien ; and, on March 28, 1888, Laura McGehee presented her petition, alleging in substance that at the time said lien was filed she was a married woman, and that the lien was defective and void because it did not allege that she was a married woman when the materials were furnished and that she was such when the lien was filed; nor did it allege that the goods were sold and delivered to her upon her order and contract, that she was the owner of the land on which the building was erected and had a separate estate therein; nor, that the materials were furnished for the improvement of her separate estate; said claim or lien failing wholly to state the kind of a building erected. Whereupon, a rule was granted to show cause why the lien should not be stricken off. On June 22, 1888, the court, citing Forrester v. Preston, 2 Pittsb. 298, discharged the rule above-mentioned, at the costs of the petitioner; exception.1 The scire facias was then put at issue upon special pleas filed by the defendants, averring (1) the coverture of Laura McGehee ; (2) that the materials set out in the plaintiff’s claim were, not furnished upon her order and contract and by her authority and with her consent; and (3) that the claim was defective in that it failed to charge that the alleged improvement was a building necessary for the preservation and convenient use and enjoyment of her separate estate, that the materials therefor were furnished upon her order and contract, upon the credit of her separate estate and building, and that the same were actually used .therein. At the trial on October 11, 1889, evidence was adduced tending to support the claim of the plaintiff. In the defendant’s case, with evidence in support of the averments of the pleas filed, it was shown, inter alia, that the building had been erected by John A. Snyder for Charles McGehee, under a contract in writing dated January 18,1886, for the contract price of 11,600. At the close of the testimony, the defendants requested the court to charge: 1. Under all the evidence in this case, there can be no recovery against Laura McGehee; her coverture is a bar to such recovery.3 2. The plaintiff was bound to allege that Laura McGehee was a married woman at the time the materials were furnished, and the lien contains no such averment, and therefore there can be no recovery.4 3. It is essential to the plaintiff’s case for the plaintiff to show that the materials were furnished to Laura McGehee upon her order and contract. The evidence shows that John A. Snyder contracted with Charles McGehee to build the house, and that the materials were sold to Snyder. 4. There can be no recovery in this case, because the lien avers that the materials were furnished upon the joint request of the husband and wife. This is fatal to the claim. It must be averred that the materials were furnished upon the request of the wife, Laura McGehee, alone.5 5. It must be proved as a fact that the improvement was a necessary one. There is no evidence upon this question to submit to the jury and the defendants are entitled to the verdict.6 6. If the jury believe from the evidence that John A. Snyder contracted with Charles McGehee to build the dwelling-house, there can be no recovery in this case against Laura McGehee.7 7. The plaintiff’s own evidence shows that Snyder was his partner shortly before the shingles were delivered, and that he sold the shingles to Snyder. If the jury believe the sale was to Snyder, or upon Snyder’s personal credit and not upon the credit of the building, there can be no recovery by the plaintiff in this case.8 8. There is no evidence in this case to show that the materials were sold by the plaintiff upon the credit of the separate estate of Laura McGehee, and there can be no recovery against Laura McGehee.9 —The court, McLean, P. J., refused the foregoing points, and instructed the jury to render a verdict for the plaintiff.8 The jury having returned a verdict for the plaintiff for $89, the defendants took this appeal, specifying that the' court erred: 1. In not striking the mechanics’ lien from the record.1 2. In instructing the jury to find for the plaintiff.8 3-9. In refusing the defendants’ points.3 to 9 As to the refusal to strike off the lien, counsel cited: Lloyd v. Hibbs, 81 Pa. 306 ; Berger v. Clark, 79 Pa. 340; Murray v. Keyes, 35 Pa. 384; Parke v. Kleeber, 37 Pa. 251; Kuhns v. Turney, 87 Pa. 497. That the cause should have been submitted to the jury: Gould v. McFall, 111 Pa. 66; Guyer v. Harrison, 103 Pa. 480; McMullen’s App., 107 Pa. 90; Need-ham v. Woollens, 14 W. N. 525; Shannon v. Shultz, 87 Pa. 481; Loomis v. Fry, 91 Pa. 396. Counsel cited: (1) Einstein v. Jamison, 95 Pa. 403; Duck v. O’Rourke, 19 W. N. 497; Forrester v. Preston, 2 Pittsb. 298: Presb. Church v. Allison, 10 Pa. 413; Kelly v. Brown, 20 Pa. 446. (2) 1 Trickett on Liens, §§ 68, 71, 72, 74.
137 Pa. 448Oyster v. Knull (1890)
(a) A testator provided as follows: “I give and bequeath to my son FT. K. O. my Mount Airy farm.....for his support, and if he should be spared to have family, I desire the above estate to go to use of his children.” When the testator died, the devisee was but ten years old, and remained unmarried and without issue: 1. The word “ children ” in said will, was a word of purchase, not of limitation ; and, therefore, the devisee took but a life-estate. That such was the intention was indicated by the words “ for his support: ” Oyster v. Oyster, 100 Pa. 538; and the word “ desire ” as employed in the will, was not precatory, merely, but mandatory: Fox’s App., 99 Pa. 382. 2. The word “ children ” in a will, is primarily and generally a word of purchase; and, while it maybe used to signify heirs, or heirs of the body, itwill not be so construed, unless the testator has employed other words indicative of an intention to use it as a word of limitation.
137 Pa. 454Estate of Scott (1890)
APPEAL BY WM. H. SCOTT ET AL. EBOM THE ORPHANS’ COURT OE FRANKLIN COUNTY. No. 10 May Term 1890, Sup. Ct.; court below, number and term not given. On March 26,1889, William H. Scott and William M. Kaufman filed the account of their settlement of the estate of James D. Scott, deceased, which account after confirmation was referred to Mr. Walter K. Sharpe, as auditor to report a distribution. The auditor subsequently reported, finding as facts that James D. Scott died resident at Chambersburg on January 18, 1887, intestate, leaving to survive him a widow and four children, to wit, William H., George W., Mary C., intermarried with William M. Kaufman, and Clara Scott. Letters of administration upon his estate were granted to the accountants on January 27, 1887. On May 10, 1887, upon the petition of the heirs, proceedings in partition of the real estate of the déceased were begun in the Orphans’ Court, and so proceeded in that sales thereof were made by the administrators, as trustees, which sales were all confirmed on October 25, 1887, and the administrators directed to make deeds to the purchasers. On November 8,1887, Clara Scott was married to Alexander Linn, and on various dates between November 4, 1887, and April 2, 1888, the deeds for the real estate sold were all delivered by the administrators to the ^purchasers, each deed containing a charge protective of the statutory interest of the widow, who at the date of the distribution by the auditor was still living. Mrs. Clara Scott Linn died on April 3,1888, intestate and without issue, and letters of administration upon her estate were granted to Alexander Linn, her husband. The account adjudicated embraced both the personal and the proceeds of the real estate of the decedent, but the personal estate was exhausted by the payment of the debts and the expenses of settlement of the estate. No claim was made that there were debts held against the estate of Mrs. Linn. Upon the foregoing facts, considering § 48, act of March 29, 1832, P. L. 205; § 9, act of April 11, 1848, P. L. 537 ; Kaun’s Est., 69 Pa. 224; Biggert’s Est., 20 Pa. 17 ; Nissley v. Heisey, 78 Pa. 418: Wentz’s App., 126 Pa. 541; Hay’s App., 52 Pa. 450, the auditor concluded as matter of law: 7. That one fourth of the net balance for distribution was distributable to Alexander Linn, administrator of Clara Scott Linn.1 8. That Alexander Linn, the husband and administrator of Clara Scott Linn, was entitled to the whole of her share, not only as her administrator, but absolutely in his own right as her husband, it descending to him under § 9, act of April 11, 1848, P. L. 537.® The auditor thereupon reported a distribution accordingly. To said report, the other distributees filed exceptions, alleging that the auditor erred: 4, 5. In his said conclusions of law.1 3 6. He should have awarded the share of Clara Scott Linn, deceased, to Alexander Linn for life, and at her death the principal sum to the heirs at law of said Mrs. Linn.3 After argument, Sadler, P. J., citing Barley v. Zeigler, 16 W. N. 218, and Wentz’s App., 126 Pa. 541, dismissed the exceptions filed, confirmed the auditor’s report, and entered a decree of distribution in accordance therewith.4 Thereupon the exceptants took this appeal, specifying that the court erred: 1-3. In dismissing the exceptions filed.1 to 3 4. In the decree confirming the report, etc.4 That Mrs. Linn’s share should have been treated as real estate, and as such distributed to her heirs, and not to her administrator or husband as personalty, because, under the circumstances, the transmission from Mrs. Linn was the first transmission, counsel cited: Biggert’s Est., 20 Pa. 17; § 48, act of March 29, 1832, P. L. 205; Hay’s App., 52 Pa. 449; Beyer v. Reesor, 5 W. & S. 501; Gutshall v. Goodyear, 107 Pa. 123; § 1, act of March 27,1865, P. L. 45 ; § 1, act of April 13, 1869, P. L. 28; Brooks v. Smyser, 48 Pa. 86; Robinson’s App., 62 Pa. 213, 217; Kami’s Est., 69 Pa. 224; Dyer v. Cornell, 4 Pa. 363. That Mrs. Linn’s share was personalty at the time of her death, counsel cited: Biggert’s Est., 20 Pa. 17; Bigley v. Jones, 114 Pa. 510; Wentz’s App., 126 Pa. 541;' Spangler’s App., 24 Pa. 424; Nissley v. Heisey, 78 Pa. 418; Barley v. Zeigler, 16 W. N. 218; Sayers’s App., 79 Pa. 428; Grider v. McClay, 11 S. & R. 224.
137 Pa. 457Early v. Zeiders (1890)
No. 11 May Term 1890, Sup. Ct.; court below, No. 39 September Term 1889, E. D., C. P. On September 19, 1889,/the sheriff of Dauphin county sold certain real estate as the property of Josiah Zeiders, at the suit of Jacob Early. The fund arising from the sale, amounting to $400, was by agreement treated as paid into court, and on September 30, 1889, Mr. Lewis M. Neiffer was appointed auditor to make distribution thereof. Two claimants to the fund appeared before the auditor.
137 Pa. 465Commonwealth v. Ware (1890)
APPEAL BY THE DEFENDANT FROM THE COURT OF OYER AND TERMINER OF DAUPHIN COUNTY. No. 12 May Term 1890, Sup. Ct.; court below, No. 138 June Term 1889, O. & T. On June 13, 1889, the grand jury of Dauphin county returned as a true bill an indictment charging Sidney Ware with the murder of Morris Miller. The defendant, being arraigned,. pleaded not guilty. Issue having been joined, the case was tried on September 26, 1889. The record contained no bills of exception, none having been taken either upon the trial or dt any other stage of the case. The paper-books set forth the following proceedings: In the empaneling of the jury, the jurors, as called, were examined as to their qualifications without having been sworn,1 and without any request on the part of either the commonwealth or the prisoner that they should be sworn. Challenges were made by the district attorney and by the prisoner, based upon the answers elicited by such examinations of jurors, and the jury was completed without the exhaustion of the peremptory challenges to which the prisoner was entitled. The jury selected having been sworn, the commonwealth presented testimony tending to show that on the night of May 4, 1889, the prisoner and a number of others, with some of whom he was unacquainted, spent some time in the saloon or bar-room of the Lykens Valley House, at Lykens, Dauphin county; that the prisoner had done but little drinking, and was not intoxicated; that no ill feeling among the persons present ex-' isted at any time during the evening until about midnight; that, just outside the door, while the proprietor was cleaning the room preparatory to closing for the night, a personal encounter began between Henry Johns, the prisoner’s companion, and Paul Shultz ; that Johns and Shultz having been separated by the proprietor, the prisoner, who had gone out with Johns, stepped back into the room; that a number of the party, who were still itL the room, then started to push toward the door again, and the prisoner, standing at the door-sill, fired two shots with a revolver, one of which took effect upon Morris Miller and the other upon Frederick Kindler, the result being that both Miller and Kindler died not long after; that the revolver used by the prisoner was not a self-cocking one, but had to be cocked again with the hand before firing the second shot; and that at the time the prisoner did the shooting no one was molesting him in any way, he had no reason to fear any personal violence, and was in a position to leave the bar-room without hindrance from any person. The defendant testified, on his own behalf, that at the close ■ of the difficulty between Johns and Shultz, the witness was proceeding on his way, thinking that everything was amicably settled, but that just then some one grabbed him by the coat collar and pushed him down on his face, and he was surrounded by a crowd of men who beat him and pushed him about; that he was forced back into the saloon, and kicked and beaten across it in his endeavors to escape, while he pleaded for a fair show; that finally, as he staggered back after receiving a blow on the head, three men made a combined rush at him, and the witness, being exhausted in breath by reason of a kick received upon his stomach, not having the strength properly to defend himself, and being struck with terror, fired without taking aim and without any intention to kill. Some corroborating testi-. mony was presented by the prisoner. At the close of the testimony, the court, Simonxon, P. J., delivered a charge to the jury, which, after instructing them respecting the different grades of homicide and the ingredients of each, substantially in the same manner as the charge delivered by Mr. Justice Agnew in Commonwealth v. Drum, 58 Pa. 9, continued in part as follows : . The commonwealth, then, in this case, must satisfy you beyond a reasonable doubt, before you pan convict this defendant of murder in the first degree, that he intended to kill the deceased ; that he wilfully, deliberately and premeditatedly killed him; that he intended to kill,- that he was conscious of that intention, and knew what he was doing in carrying it out. If he. intended to kill that way, then he would be guilty of murder in the first degree. He would then have'the malice that the law requires, although he had no evil feelings against the particular person whom he killed. It would not even be necessary that he intended to kill Morris Miller; if he fired the pistol with the deliberate intent to take life, he is guilty of murder in the first degree, under these circumstances. If he is not guilty of murder in the first degree, then you have to determine whether he is guilty of murder in the second degree; and that means, whether, without lawful excuse, and with reckless disregard of consequences, he took the life of the deceased. It has been suggested by the district attorney that there is some inconsistency between the two defences; that the act was manslaughter, or, that it was done in self-defence; and apparently there might be, yet, practically, not. It amounts to the defendant saying that I claim that the facts in evidence in this case prove that I did it in self-defence, or, they prove that I did it in sudden heat or passion. The defendant, in testifying, did not claim that he was in any heat or passion, and the jury can consider that, so far as considering the testimony is concerned; but it is entirely competent for the defendant to set up both these defences. If you should not find him guilty of murder in the first degree, then you will have to determine as to the other offences. As to manslaughter, then; was the killing done upon a sudden impulse, or in heat of passion, and was there such provocation as might naturally lead to that heat of passion? For, as we have said to you, provocation without passion is not sufficient to reduce the killing from murder to manslaughter. If a man have such provocation as naturally might lead him into a passion of rage, uncontrollable almost, we might say, and in that sudden heat he kill another, he would be guilty only of manslaughter; but, if he got into that rage without reasonable provocation, it would not excuse him. And if he had provocation and still remained cool, or did not get into a passion, that would not excuse him. Then as to the question of self-defence. The rule there is that a person, before he can excuse killing on the ground of self-defence, must have no other reasonable or probable means of escape from either loss of his own life or serious bodily harm. If a man is attacked and his life is in danger, and it is reasonably necessary to save his life, he has the right to kill his as^sailant, in order to protect himself from serious bodily harm, loss of a limb, or severe wounding. If he stands his ground and kills without such, then he has gone beyond his right, and the offence would be murder in the second degree, if those facts only existed. Now, gentlemen, you have heard the evidence in this case. It has been fairly and ably argued to you on both sides. The considerations that ought to weigh with you, in the estimation of the counsel, all of them, I think, fair to be presented to you, have been brought to your attention by the counsel on both sides, and I have no doubt that all the facts are fresh in your minds. I shall therefore not detail them, but ask you to carefully weigh and consider the case, applying these facts to these different branches of the case and of the defence as we have explained them to you. Determine, in the first place, whether the defendant is or is not guilty of murder in the first degree; or, to say it perhaps more accurately, determine whether the defendant is guilty of murder, and if so, determine the degree. If not guilty of murder, then determine, whether the defendant is guilty of manslaughter, or whether he is excusable because of his heat or passion; or, whether he was justified in what he did as a means of reasonable self-defence..... The defendant has presented these points and has asked us .to give you certain instructions: 1. The intent to take life, with a full and conscious knowledge of the purpose to do so, is the distinguishing criterion of murder in the first degree; and, unless the jurors are satisfied from the evidence, beyond any reasonable doubt, that the defendant intended to take life at the time the shot was fired, and had a full and conscious knowledge of the purpose and intent to take life, he should not be convicted of murder in the first degree. Answer: That we affirm. 2. Before the jurors can lawfully convict of murder in the second degree, they must be satisfied from the evidence, beyond any reasonable doubt, that the killing of Morris Miller was the result of “depravity of heart” in the defendant, and “a disposition of mind regardless of social duty.” Answer: This is affirmed, in connection with what we have said in the general charge in explanation of the meaning of the term “ malice,” and of the offence of murder in the second degree. 8. If the jury believe from the evidence that the defendant did not “ meditate the death ” of Morris Miller, or any one else; did not carry the pistol to take life, and upon the sudden impulse of an attack upon him and of blows received, drew his pistol in the consequent passion and rage caused by such attack and blows, and fired the fatal shot, then it is their duty to convict of no higher offence than manslaughter. Answer: This is affirmed, if the jury find that there was sufficient provocation, as we have explained in the general charge.3 4. If the jurors are satisfied from the evidence that the defendant at the time he fired the shots, had, in good faith, a reasonable belief, founded upon facts as they appeared to him at the time, that he was in imminent peril of his life, or in danger of great bodily harm, and fired his weapon for the purpose of defending himself, then his act is justifiable, even if his belief at the time was a mistaken one; and the verdict should be one of entire acquittal. Answer: This is affirmed, if the jury also find that the defendant under those circumstances had no other probable means of escape.4 As we have said, gentlemen, the facts havte been so fully argued to you that we do not think it necessary to refer to them. You have them fresh before your mind, and you will consider them in the light of the legal principles we have stated..... —The jury returned, a verdict of guilty of murder in the first degree. The defendant then moved the court for a new trial, assigning, inter alia, as reasons therefor: 5. That the verdict was based upon a misunderstanding and erroneous recollection of the testimony of Joseph Louden, one of the witnesses examined on the trial. 6. That the court erred in not complying with a request made by the jury that certain testimony be read to. them, in order that they might be informed definitely what certain witnesses had testified to in the cause, and that such failure led to the rendering of a verdict based upon a mistaken recollection, of the testimony. -^■In. support of these reasons, the defendant took the depositions of three of the jurors and the sheriff. The testimony of ■the jurors tended to show that a dispute arose in the jury room as to what the witness Louden had testified to, the deponents maintaining that he had testified that there was a scuffle in the saloon, and that in the scuffle the prisoner got down on the floor, while the remaining niire jurors maintained the contrary; that, to settle the dispute, the jury sent the sheriff to the court with a request for Louden’s testimony, but afterwards were informed by the sheriff that the request could not be granted; and that the deponents, then thinking they might be mistaken, assented to a verdict of guilty of murder in the first degree, which they would not have done had they known that their recollection was correct, as they had since found it to be. The deposition of the sheriff was as follows : “ I am the sheriff of Dauphin county, and had charge of the jury in this case. On the morning the verdict was rendered, I was requested by Mr. Cummings, the foreman of the jury, to ask the court whether they could not have Mr. Louden’s testimony read to them. I informed the court of this request, and was instructed to say to the jury that the request could not be granted, and I so informed the jury.” The opinion of the court, Simonton, P. J., with reference to the fifth and sixth reasons assigned for a new trial, was in part as follows: The depositions of three of the jurors have been taken to sustain this reason [the fifth], and to show that if they had been certain that the witness named had testified that “ there had been a scuffle, and in that scuffle Ware got down on the floor," they would not have agreed to a verdict in the first degree. What the witness really did say was, “ Going out, they were all pushing and shoving, they were all pushing and shoving. Ware got down; whether he was struck or not I do not know, I did not see anything of the kind.....After Ware was let up, he went toward the door and the crowd also, and after he got to the door he fired the first shot.” And in answer to a question by the court, “ Can you tell us what the pushing was for, and what occasioned it ? ” he answered, “ Not anything more but Johns and Ware going to the door and starting a fuss, and then they started in from the door.” —After citing Dalrymple v. Williams, 68 N. Y. 361 (20 Am. Rep. 544) ; Wright v. Telegraph Co., 20 Iowa 195 ; Crawford v. State, 2 Yerg. 60 (24 Am. Dec. 477), note; 3 Graham and W. on New Trials, 1428; Cook v. Castner, 9 Cush. 278; Cluggage v. Swan, 4 Binn. 150; and Norton v. Breitenbach, 1 Pears. 467, as establishing the doctrine that jurors are incompetent to impeach their verdict by testifying that they joined in it in consequence of misapprehension or mistake, the opinion continued : But there is nothing in the depositions of the jurors that ought to move the court to disturb their verdict; nothing that tends to show that the verdict of murder in the first degree ought not to have been rendered. The utmost that it tends to show in favor of the defendant is that he was pushed down but not struck, and that after he was let up he went to the door and then turned and fired the shots. This would not show any excuse or palliation of his conduct. The sixth reason is, that the court erred in not causing certain testimony to be read to the jury in open court, as requested by them. The request made by the jury, as we remember it, was that they might have the stenographer’s notes of the one witness, Joseph Louden, named in the preceding reason. Our recollection upon this point is corroborated by the deposition of one of the jurors above referred to, who says: “ The foreman sent the sheriff to the court for Louden’s evidence or the stenographer’s notes; he came back and reported that the court would not let us have the testimony.” This request could not with safety have been complied with; and the court could not know, and did not know, and does not now know, that the jury had any desire to come into court for further instructions. Besides, as we have seen above, there was nothing in the evidence of this witness that ought to have changed the result. The motion for a new trial having been overruled, the court pronounced sentence of death upon the prisoner, whereupon he took-this appeal specifying that the court erred: 1. In permitting the jurors to be examined touching their qualifications, without first having been sworn or affirmed to make true answers. 2. In declining to permit the testimony of Joseph Louden to be read to the jury, when requested by the jury. 8, 4. In the answers to the defendant’s points. 3 4 5. In not fully instructing the jury upon the law as applicable to the facts of the case, aird in not more fully calling their attention to the facts to which the principles of law stated by the court were to be applied by them. 6. In that the evidence was insufficient to establish the essential elements of murder in the first degree, and the verdict was unwarranted by the evidence. 1. The failure to swear the jury before their examination as to their qualifications, was irregular, and should be regarded as fatal: Zellv. Commonwealth, 94 Pa. 272; O’Mara v. Commonwealth, 75 Pa. 424; Comfort v. Mosser, 121 Pa. 455. It was the defendant’s right to have the 'examination conducted under oath, and it was the duty of the court, without request or suggestion, to see that it was so done. The defendant could not waive that which is essential to the due and orderly administration of justice : Guyowski v. People, 1 Scam. 476; 1 Whart. Cr. L., § 145 a; Smith v. Commonwealth, 14 S. & B. 69. 2. It was error to decline to read the testimony of Louden to the jury, when requested so to do. That testimony was on a vital point, and that the verdict was based upon a wrongful recollection of it, is beyond dispute. Whether the request of the jury was as stated by the sheriff, or as recollected by the court, makes no difference. The material fact is that there was doubt or difference of opinion in the minds of the jurors, and that this situation was communicated to the court with a request for further information. The information requested the court had no power to withhold. If it could not be given in the manner desired, the recognized method of calling the jury into open court to receive it should have been adopted: Georgia v. Brailsford, 8 Dalí. 1; Cox v. Highley, 100 Pa. 253. The opinion of the judge that the testimony of Louden, even if correctly remembered, should have made no legal change in the verdict, does not meet the difficulty. The weight to be given to it and the conclusions to be drawn from it were solely for the consideration of the jury; and the jurors were competent to prove the injury resulting to the defendant: Packard v. United States, 1 G. Greene 225 (48 Am. Dec. 375); Bradley v. Bradley, 4 Dali. 112; Follansbee v. Walker, 74 Pa. 310 ; Haak v. Breidenbach, 3 S. & R. 204; Leonard v. Leonard, 1 W. & S. 342; Commonwealth v. Haines, 15 Phila. 363. 3. The modification by the court of the defendant’s third point was calculated to mislead the jury into the belief that they must be satisfied, not only of a sufficient provocation to induce passion and rage, but also of a sufficient provocation to warrant the shooting. And the answer to the fourth point was erroneous, because its effect was an instruction to the jury to inquire whether, as a matter of fact, the defendant had other probable means of escape from the attack upon Mm, and that if such means of escape actually existed, although he may have been ignorant of it, his honest belief of danger and the good faith with which he fired furnished no excuse. The charge was little more than the reading, mutatis mutandis, of the instructions given by Mr. Justice Agnev, in Commonwealth v. Drum, 58 Pa. 9. It was more meagre in its reference to the facts of the case than the charge in Meyers v. Commonwealth, 83 Pa. 131, characterized by the present Chief Justice as inadequate. 4. We confidently submit that none of the essential ingredients of murder in the first degree were proved beyond a reasonable doubt. All the circumstances clearly indicate the entire absence of deliberation and premeditation. The defendant was clearly shown to be a young man of good character and quiet, peaceable disposition, and his every act, until a few moments before the firing of the fatal shot, clearly negatives every suggestión of his meditating the death of any one. A sudden fight, beginning between his companion and Shultz, was almost immediately followed by another in which he became involved and in which he was violently assaulted and beaten, and in the very midst of the attendant noise and turmoil he fired his revolver. This suddenness is opposed to premeditation : Commonwealth v. Drum, 58 Pa. 9. There were no subsequent circumstances to overcome the presumption arising from the suddenness of the occurrence, as was the case in Lanahan v. Commonwealth, 84 Pa. 80. A deliberate intent to take life’ was not sufficiently proved: Pistorius v. Commonwealth, 84 Pa. 158 ; Murray v. Commonwealth, 79 Pa. 814. 1. A defendant may waive his challenge, and there is no good reason why he may not Avaive a step, toward the perfecting of such challenge: 1 Archb. Or. PL & Pr., 64; United States v. Cornell, 2 Mas. 91; 2 Graham and W. on New Trials, 192. The refusal of the court to send Louden’s testimony to the jury was a matter exclusively within the discretion of the court below. No case can be found in Avhich the facts Avere reproduced to the jury.' Jurors, however, are incompetent to impeach their verdict: Dalrymple v. Williams, 63 N. Y. 361 (20 Am. Rep. 544) ; Wright v. Telegraph Co., 20 Iowa 195 ; Crawford v. State, 2 Yerg. 60 (24 Am. Dec. 477) ; 3 Graham and W. on New Trials, 1428; Cook v. Castner, 9 Cush. 274; Cluggage v. Swan, 4 Binn. 150; Norton v. Breitenbach, 1 Pears. 467; Whart. Cr. Pl. & Pr., § 847. Hence the effect of the failure to send the testimony out cannot be known. Moreover, the depositions in support of the motion for a new trial form no part of the record: Alexander v. Commonwealth, 105 Pa. 1. 2. Upon every question of law legitimately raised by the testimony, the jury were properly instructed. Apart from all that has been said, it is a fatal objection to the first five assignments of error that they are not based upon exceptions taken in the court below: Hopkins v. Commonwealth, 50 Pa. 1; Grant v. Commonwealth, 71 Pa. 507. The only question, therefore, of which this court can take jurisdiction, is whether the necessary ingredients of murder in the first degree have been proved, to exist. The question of tbe prisoner’s guilt or innocence it will not review: Grant v. Commonwealth, supra; Staup v. Commonwealth, 74 Pa. 458; McCue v. Commonwealth's Pa. 185; Meyers v. Commonwealth, 83 Pa. 131. There was ample evidence to justify the jury in finding that Ware, when he made use of his deadly weapon, intended to kill, and that he had sufficient time to frame a deliberate design to kill: Keenan v. Commonwealth, 44 Pa. 55; Commonwealth v. Drum, 58 Pa. 9; Commonwealth v. Daley, 2 Clark 156. The question for the jury was virtually whether they would believe the testimony for the commonwealth or that of the defendant.
137 Pa. 481Commonwealth v. Phila. etc. C. & I. Co. (1890)
Nos. 16,17 May Term 1890, Sup. Ct.; court below No. 512 September Term 1887, C. P. On April 18,1887, the auditor general and state treasurer, upon a return made under protest by the treasurer of the Philadelphia & Reading Coal & Iron Company, a corporation organized under the laws of Pennsylvania, settled and entered an account against said company as follows: For tax on scrip, bonds and certificates Nominal value of scrip, bonds and certificates of indebtedness, owned by…
137 Pa. 494Paving, etc., of Wyoming Street (1891)
137 Pa. 508Commonwealth v. Wyman (1891)
1 OP ALLEGHENY COUNTY. No. 52 October Term 1891, Sup. Ct.; court below, No. 274 March Term 1891, C. P. No. 1.
137 Pa. 524Richards v. Buffalo etc. R. (1890)
1. When a railroad company enters upon land to construct its road, without acquiring the land under the right of eminent domain, but relying upon the grant of the right of way from an alleged owner, a subsequent grantee of the real owner may afterwards maintain ejectment against the company. The action is not personal to one who owned the land when it was so taken. 2. If the agent of the company, at the time he procured the grant for the right of way, knew that another than the grantor had title to the land, ' the real owner, though by his words or silence he may have encouraged the execution of the grant and allowed the company to construct and operate its road for years without objection, is not estopped from subsequently asserting title. 3. Where, in such case, the real owner subsequently brings ejectment against the railroad company for the land occupied, and there is submissible evidence that the company’s agent had knowledge of the plaintiff’s title when he procured the grant of the right of way, binding instructions to find for the defendant would be error. 4. Upon recovery by the plaintiff; in such action, and the subsequent affirmance of the judgment, the Supreme Court will order the execution thereof to be stayed for a sufficient time to enable the railroad company to condemn the right of way under its power of eminent domain.
137 Pa. 533Larimer & L. St. Ry. Co. v. Larimer St. Ry. Co. (1890)
1. Although the unauthorized occupation of a public street by a railway track may be regarded as a nuisance, per se, which will be enjoined, an injunction against it will not be granted at the suit of a private citizen, or a corporation, unless the plaintiff can make out a case of special damage. 2. Under § 9, article XVII. of the constitution, and § 15, act of May 14, 1889, P. L. 211, the consent of a city to the construction of a street railway upon its highways, is a condition precedent thereto, and without it a company incorporated under the act of 1889 has no right, present, or prospective, to occupy streets for that purpose. 3. Wherefore, such a company, not having obtained such consent, has no standing by a bill for an injunction to question the right of another company, subsequently incorporated, to occupy for its railway streets covered by the prior charter; having itself no right to occupy such streets, the older company cannot be said to suffer special damage. 4. If a city ordinance, specially authorizing a particular street-railway company by name to occupy certain streets, is invalid as a special grant to said company, it is absolutely void; it cannot be given a general effect, so as to enure to the benefit of another company having a prior charter for the streets named. 5. Whether by § 7, article LX, of the constitution, or by § 52, act of May 16, 1889, P. L. 228, relating to streets and sewers in cities of the second class, the councils of such a city are precluded from passing a special ordinance granting consent to the construction of a street railway by a particular company, incorporated under act of May 14, 1889, P. L. 211, not decided.
137 Pa. 548Mazet v. City of Pittsburgh (1890)
APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. No. 112 October Term 1889, Sup. Ct.; court below, No. 87 January Term 1889, C. P. No. 2, in Equity. In October, 1888, William Mazet filed a bill in equity against tbe city of Pittsburgh; William McCallin and others, composing the Department of Awards of said city; E. M. Bigelow, chief of the Department of Public Works of said city; and J. J. Booth and William Flinn, partners as Booth & Flinn; praying that a certain contract between said city and Booth & Flinn, for the paving and curbing of Craig street, be declared null and void, and that the doing of any work thereunder be restrained by injunction. The following facts, alleged in the bill, were admitted by the defendants’ answers: In accordance with the provisions of § 6, act of May 28, 1874, P. L. 230, directing that all work, etc., to be done for cities shall be let by contract to the lowest responsible bidder, under such regulations as shall be prescribed by ordinance, the councils of the city of Pittsburgh, on June 1, 1881, enacted an ordinance providing for the letting of contracts for work, materials or supplies to the lowest responsible bidder, and ordaining that all contracts exceeding in value the sum of $50 should be let or entered into only after proposals therefor were invited by advertisement, in the official newspapers of the city, for not less than five days. By § 22 of an ordinance to carry into effect the act of June 14, 1887, P. L. 886, a department, known as the Department of Awards, was created for the awarding of contracts for public works and supplies, and it was enacted, inter alia, that all such contracts should be awarded publicly, in the common council chamber, to the lowest responsible bidder ; that no contract exceeding .$50 in amount should be binding on the city until approved by the councils, and, when so approved, the head of the proper department should execute it on behalf of the city; and that all contracts should be awarded after due public notice, as already provided by law, upon such specifications as should be approved by the Department of Awards. On August 1, 1888, the city councils enacted an ordinance for the paving and curbing of Craig street, from Fifth Avenue to Centre Avenue, the cost of the same to be assessed and collected according to the provisions of the act of June 14, 1887, P. L. 386. The ordinance did not designate the kind of paving and curbing to be laid. On August 16, 1888, E. M. Bigelow, as chief of the Department of Public Works of the city, advertised for sealed proposals for the performance of various items of public work, including the paving and curbing of Craig street. The advertisement did not state the kind, character or quality of the paving and curbing to be done on said street, but it contained the following statement: “ Plans and specifications can be seen, and blanks for bidding can be had at this office.” In response to this advertisement bids for the work to be done on Craig street were received on August 28, 1888, the day specified for the close of the bidding, from Booth & Flinn and from the Warren-Scharf Asphalt Paving Company, accompanied by specifications prepared by the respective bidders. Booth & Flinn proposed to put down what was known as a vulcanite asphalt pavement, submitting alternate bids with varying specifications and prices; and the Warren-Scharf company proposed to put down what was known as the Trinidad Asphalt Sheet pavement. These parties were the only bidders. On September 10, 1888, the Department of Awards awarded the contract for Craig street to Booth & Flinn as the lowest bidders. This award was subsequently approved by councils, and in pursuance thereof a contract for said work was entered into between the city and Booth & Flinn. The bill charged fraud in the awarding of the contract to Booth & Flinn, but the answers of the defendants specifically denied this charge. The seventh paragraph of the bill averred that,' “ At no time, from August 16, to August 28, 1888, were there any plans or specifications for the work of paving or curbing Craig street prepared or approved by any department of the city, and no specifications whatever for said work, during said time, were upon file, or open to inspection or examination by parties proposing to bid, at the office of the said Bigelow, or elsewhere ; but, on the contrary thereof, to persons desiring to bid upon said work, and wishing to know the work required or proposed to be done, applying for said plans and specifications for the purpose of bidding, said defendant, Bigelow, refused to exhibit any plans and specifications, and directed such persons to prepare their own specifications, to be enclosed with their bids ; and so it was impossible for those proposing to bid, to know or have any idea as to the nature, quality or character-of the work to be done. In consequence of the total want of plans and specifications for said work and the directions of said Bigelow, all bidders on said work prepared their own specifications in accordance with their own judgment of what was becoming and necessary, or would be required, and submitted the same along with their respective bids.” The answer of the city of Pittsburgh responded to these allegations as follows: “ 7. The averments in the seventh paragraph of the bill are denied. There were plans and specifications for the work of curbing and paving Craig street prepared and approved by the proper department of the city, on file in the Department of Public Works, and open to the inspection and examination of all parties proposing to bid for the paving or curbing of said Craig street. This plan showed the surface of the street; the street as it had to be prepared by grading; the number of square feet of paving to be done; the number of lineal feet of curbing to be done; and the specifications embraced paving with cobble-stone, paving with irregular block-stone, and paving with block-stone. There were no specifications as to what is called an asphalt pavement. “ When the proposals for the grading of Craig street were advertised for, the situation was this : The Warren-Scharf Asphalt Paving Company had the sole and exclusive right of laying what is called the Trinidad Standard Sheet asphalt pavement in the city of Pittsburgh, and no person or firm could lay that kind of a pavement except the W arren-Scharf Asphalt Paving Company. Therefore, if the specifications for asphalt pavement had been made, and the same had been such as are used by the Warren-Scharf Asphalt Paving Company, the result would have been that no person whatever could have bid for the pavement except the Warren-Scharf Asphalt Paving Company. “ In competition with the Trinidad Standard Sheet asphalt pavement is one called the vulcanite asphalt pavement; but, to have restricted bidding to it alone would have prevented bids for the Trinidad Standard Sheet asphalt pavement. Then there are certain kinds of rock asphaltum which are obtained in Switzerland, and to have specifications for Trinidad asphaltum would have prevented bids for rock asphaltum pavement. These are the only kinds of asphaltum pavements, and for each kind each company has its own specifications. By not making specifications as to the particular kind of pavement, but receiving bids for all, the city opened competition for all kinds of asphaltum pavements, and at the same time any person or company laying any other kind of a pavement was at liberty to bid. “ The specifications on file in the office of the chief of the Department of Public Works do show what kind of curbing was to be laid.” The city’s answer averred, further, that the pavement and work specified in the bids of Booth & Flinn were not wholly and altogether different from the pavement and work specified in the bid of the Warren-Scharf companjvbut, on the contrary, all of said bids related to a smooth asphalt pavement, differing, however, in the manner of laying said pavement and in some other respects; that it was not true that there was no competítion between bidders on the price for the work so to be done, bnt, on the contrary, the manner in which the bids were received gave the widest field for competition. The answer of Booth & Flinn contained averments substantially to the same effect. The bill averred, and the answers admitted, that the plaintiff was a citizen and tax-payer of the city of Pittsburgh, and that, during all the transactions referred to in the bill, he had been and still was the owner of certain real estate fronting about 400 feet on Craig street, upon which property the city claimed to assess a portion of the cost of paving said street. But each of the answers impugned the good faith of the plaintiff in preferring his bill. Upon this subject the answer of the city and its officers averred: “ That this bill is not filed in good faith by the said plaintiff, for the purpose of having any grievance of his righted by the court, but the said ■ plaintiff is merely a cover for the Warren-Scharf Asphalt Paving Company; and they believe the bill is filed at its instance and at its suggestion, and is therefore a collusive one and not a bill filed in good faith.” Booth and Flinn’s answer averred: “ These defendants aver that the bill is not filed in good faith by the plaintiff, but on the contrary thereof, he is merely a cover, and, in fact, the said plaintiff represents the WarrenScharf Asphalt Paving Company, a corporation which was an unsuccessful competitor in the bidding for the contract set out in the bill, and this bill is filed at the instance, suggestion and request of the said Warren-Scharf Asphalt Paving Company, and for its use; the Said company bears the cost and expense thereof, and the bill is therefore a collusive one.....Had it not been that the plaintiff was willing to allow his name to be used by the Warren-Scharf Asphalt Paving Company, in the filing of this bill, so that the said paving company could under cover of his name file this bill, as these defendants verily believe it never would have been filed.” The case having been heard on bill and answers, the court, Ewing, P. J., filed an opinion in part as follows: This case was set down by complainant’s counsel on the bill of complaint and the answers thereto. We therefore assume as true all the averments of fact relevant to the issue contained, in the answers, and which can be set up in an answer, whether they be responsive to the bill or independent matters of defence, but conclusions of law or fact, merely inferred therefrom by the defendants, are not conclusive. The most difficult, and as seems to us the only doubtful question in the case, is raised by the averment in the answer of Booth & Flinn as to plaintiff, to wit: “ That the bill is not filed in good faith by the plaintiff, but on the contrary thereof he is merely a cover; and, in fact the said plaintiff represents the Warren-Seharf Asphalt Paving Company, which was an unsuccessful competitor in the bidding for the contract set out in the bill, and the bill is filed at the instance, suggestion and request of said company for its use; the said company bears the cost and expense thereof, and the bill is therefore a collusive one.” This defence is in the nature of a plea in abatement, and should have been so pleaded before answer: 1 Daniell’s Ch., 680 ; Dinsmore v. Railroad Co., 19 Fed. R. 153; Williams v. Nottawa, 104 U. S. 209. By Rule 7 of our equity practice, such defence is excluded from the matters that may be set up in an answer. But, assuming that the defence can be raised by answer, the pleadings admit the legal right of the plaintiff, that he is a citizen and tax-payer of the city, and that he is, and, before the beginning of the proceedings leading to the contract, he was a large property holder on the street to be improved, which property would be subject to a large assessment under the proceedings. His legal right to maintain the suit in his own name cannot be doubted. On this state of facts, defendants’ counsel argue that the bill is collusive and that it should therefore be dismissed as such, and cite in support of the proposition Robson v. Dodds, 8 Eq. Cas. 301, and Forrest v. Railway Co., 4 De G., F. & J. 126. —After commenting on these cases, and also upon Sandford v. Railroad Co., 24 Pa. 378; Colman v. Railway Co., 10 Beav. 1; Ramsey v. Gould, 57 Barb. 398; Central R. Co. v. Collins, 40 Ga. 582; Bloxam v. Railway Co., 3 Ch. App. Cas. 236, and citing Lanier v. Nash, 121 U. S. 410, the opinion proceeded: In the present case, the plaintiff has a clear legal right to maintain his suit; he has a very substantial interest in the subject-matter thereof, and we are of the opinion that his motives therein are immaterial, and that the bill should not be dismissed even though other parties may be interested and may pay his costs. Is. the contract complained of illegal ? The answers effectually dispose of all allegations of fraudulent intent on part of any of the defendants. This leaves the contention to be decided on the naked question of power, or want of power, in the city authorities, to entei; into the contract in question in the manner in which it was done..... —The court here recited the facts appearing upon the bill and answers, and continued: From the answers and from the argument, I understand that 'the specifications for the stone pavement referred to were not special to Craig street, but general specifications applicable to all streets. This, however, is not material. As to asphalt pavements, the charges in the bill are substantially admitted. The contract was awarded for a kind of pavement which was not called for in the ordinance, and which was not advertised for; but, on the contrary, taking the notice in the advertisement that “ plans and specifications for the paving could be seen, and blanks for bidding could be had at the office,” in connection with the averment in the answer that there “were specifications for three kinds of stone pavement on file, at the office,” and no specifications for an asphalt pavement, it was an exclusion of proposals for asphalt pavement. The office blanks for bidding were based on specifications on file in the office, and so state in terms. How the contract for an asphalt pavement could be let under these circumstances, in conformity with the act of assembly, we are unable to see. How there could be “ a lowest bidder” with nothing to bid on, is past our understanding. This case has been very ably argued by experienced and astute counsel, and we have not been referred to any case where the law has required such a contract to be let to the lowest bidder and no specifications have been furnished to bid upon, that the contract has been sustained. Numerous cases have been cited in which an attempt to award a contract in a manner similar to that shown in the present case has been set aside..... —Citing, People v. Paving Co., 43 N. Y. 227; Bilger v. Mayor, 5 Abb. N. C. 51; Wells v. Burnham, 20 Wis. 112; People v. Commissioners, 4 Neb. 150; Boren v. Commissioners, 21 Ohio St. 311; State v. Barlow, 48 Mo. 17; In re Eagen, 46 N. Y. 100; and Attorney General v. Detroit, 26 Mich. 264, the court proceeded: It is argued by counsel for defendants, that because in several of the cases above cited, the act of assembly under which the contracts had been let required plans and specifications, they are not applicable to the facts in this case, where the act of assembly is silent on that point. This objection will not apply to the Nebraska or the Wisconsin cases, and it will be found on examination of the other cases that the reason of the decision is put on the ground that without specifications to bid on there can be no competitive bidding such as is required to award a contract to the lowest bidder. But, in our case, the city ordinances, where not in conflict with the acts of assembly, are equally binding on the departments as are the acts of assembly. The ordinance to carry into effect the act of June 14, 1887, as above quoted, provides that “ all contracts shall be awarded after due public notice, as now required by law, upon such specifications as shall be approved by the Department of Awards.” Counsel for defendants argue that these plans and specifications may for the first time be made public when the contract is let, and that they have no reference to the bids called for by advertisement. We cannot read the ordinance in that "way. Read in connection with the acts of assembly and other ordinances, or read by itself, it plainly means and refers to plans and specifications prepared for competitive bidding. It imposes on the Department of Awards the duty of seeing that the plans and specifications on which the accepted bid has been made, are right and proper, and if not so found all the bids should be rejected. Whether or not that department, as such, has any duty to perform in approving plans and specifications before the bids are advertised for, it is not necessary to decide. Neither from the ordinance authorizing the paving and curbing of Craig street, nor from the advertisement; nor from plans and specifications on file in any office of the city departments; nor from all combined, was there any notice or intimation that any proposal for an asphalt pavement was either desired or would be received. Any such information obtained by a bidder was private information. There was no advertisement for bids competing in kinds of pavement other than the three kinds of stone pavement for which there were plans and specifications. For these reasons, the contract was beyond the power of the city authorities to make, and, regardless of their good intentions, the contract must be set aside. The Department of Awards was not bound to award the contract on the day the bids were opened. Let a decree be drawn in accordance with these conclusions; the city of Pittsburgh to pay the costs. A formal decree adjudging the contract between the city of Pittsburgh and Booth & Flinn, for the paving and curbing of Craig street, to be illegal, null and void; awarding an injunction against the doing of any work in the paving or curbing of said street thereunder, and directing that the city pay the costs of the case, having been entered, the defendants took this appeal, specifying that the court erred: 1. In entering said decree. 2. In not entering a decree dismissing the plaintiffs bill at his cost. 1. The case having been heard on bill and answers, all the averments in the answers, whether responsive or not, are to be taken as true and considered in making the decision: Lang-dell’s Eq. PL, § 63; 1 Daniell’s Ch., 845; Philadelphia’s App., 78 Pa. 38. As a petitioner for the discretionary interference of a chancellor, the plaintiff was bound to come into court with a sincere and unsimulated complaint of a wrong to himself, and not as the mere puppet of and cover for another. The WarrenSeharf company could not itself maintain this bill: Commonwealth v. Mitchell, 82 Pa. 350. The bill is admittedly filed, not to right any grievance Mazet has, but solely on behalf and for the use of the Warren-Seharf company, and Mazet is confessedly merely its puppet or dummy. The company cannot maintain the bill thus in his name, and the attempt to do so is a fraud upon the court. 2. The court below, when this trick was disclosed, held that such a fraud would not be noticed by the chancellor, unless set up by plea in abatement; and, further, that all the averments on that subject in the answers, as they showed only the motive of the plaintiff in filing the bill, were immaterial. Such is not the law in Pennsylvania. The authorities against this ruling are: Kenton v. Railway Co., 54 Pa. 401; Cambios v. Railroad Co., 4 Brewst. 592; Filder v. Railway Co., 1 Hem. & Mil. 489; Forrest v. Railway Co., 4 De G., F. & J. 125 ; Robson v. Dodds, 8 Eq. Cas. 301; Belmont v. Railway Co., 52 Barb. 662; Wallesbury v. Express Co., 50 Barb. 157; Kerr on Injunctions, 25, 169, 480 ; High on Injunctions, § 1550 ; Daniell’s Ch., §§ 244, 245. It is but lately that a tax-payer’s right to file such a bill as this was settled, but, in the doctrine of the court below allowing an unsuccessful bidder to use a tax-payer’s name for this purpose, we have a new equitable principle. Upon this question the answers can be considered together: Mills v. Gore, 20 Pick. 34; Field v. Holland, 6 Cranch 24. The plaintiff has solemnly admitted of record that the averments of each are true. 3. Neither the charter of the city of Pittsburgh, nor any other law applicable thereto, requires, as a condition precedent to the making of a contract, that specifications of a particular kind of pavement should be prepared prior to advertisement for bids. On the contrary, the act of May 23, 1874, P. L. 230, commits to the city the discretionary power of determining the best mode of receiving bids, and, in the absence of fraud, the courts cannot interfere.' This has been repeatedly decided by this court. The decision of the court below,- that under the act of 1874, this contract was void for want of specifications prepared before the bidding, is the more remarkable, in view of the admitted fact that the mode adopted by the city was the best possible one to secure the widest and fairest competition, and that by following it the city secured a better and cheaper pavement than it could otherwise have done. 4. The court also held that specifications prior to the bidding, were required by the ordinance of December 17,1887, and that therefore that ordinance rendered this contract void. Two answers suggest themselves: (a) If an ordinance enacted by the city had contained such a requirement, the city could waive it, if an honest benefit was conferred upon the city by such waiver;.but, (i) the ordinance of 1887 manifestly contemplates that the Department of Awards shall have nothing to do with specifications until they meet to let the contract, and that the specifications shall be approved by the department before the contract is let, but not prior to the taking of the bids. An examination of the cases, cited by the court below as ruling that specifications before bidding are conditions precedent to the granting of a contract, will show that all of them, except the Nebraska case, turned on the express requirements of a statute; and in that case the chief justice dissented. 5. It is useless, however, to examine the cases cited by the court below, because the present case involves a construction of the act of May 23, 1874, P. L. 230, which has been repeatedly before this court, and it is well settled that the question of the letting of a contract, under that act, is a matter for the discretion of the city, and not of the courts, and that the only question for the latter is that of fraud: Commonwealth v. Mitchell, 82 Pa. 343; Findley v. Pittsburgh, 82 Pa. 351; Douglass v. Commonwealth, 108 Pa. 559; McCallin’s App., 1 Mona. 596. Equity will not interfere at the suit of a tax-payer, except to prevent a property loss arising to him from a wrong perpetrated upon him: Sparhawk v. Railway Co., 54 Pa. 401. To hold that a tax-payer may at any time file a bill, and for a mere irregularity have any contract or ordinance of the city annulled, would be a most mischievous rule, and would open wide the flood-gates of litigation. This has never been the rule in Pennsylvania: Cooley on Taxation, 540, 541, n. 1; Wheeler v. Philadelphia, 77 Pa. 346; Page v. Allen, 58 Pa, 344; Sharpless v. Philadelphia, 21 Pa. 158. 1. The purpose of § 6, act of May 23, 1874, P. L. 230, is manifestly to secure competition in bidding on the price of work to be done, and to that end it is absolutely necessary that the bidder should know beforehand exactly what kind of work is to be done. Any other course opens the door wide for fraud and jobbery of all kinds. There are numerous decisions in other states upon the requirements of similar statutes, and in none of them did the method adopted in this case succeed : People v. Board of Improvement, 48 N. Y. 227; Bigler v. Mayor, 5 Abb., N. C, 51; Wells v. Burnham, 20 Wis. 112; People v. Commissioners, 4 Neb. 150; Boren v. Commissioners, 21 Ohio St. 311; State v. Barlow, 48 Mo. 17; In re Eagen, 46 N. Y. 100. 2. The two answers filed in this case cannot be read together, the one to supplement the other where deficient. The answer of a defendant is not evidence for his co-defendant: Larkins’s App., 38 Pa. 457. The allegations as to the bad faith of the plaintiff should have been pleaded in abatement: Story’s Eq. PL, § 722; Rule 7, Equity Rules; 1 Daniell’s Ch., 630; Dins-more v. Railroad Co., 19 Fed. R. 109; Brightley’s Eq., 476; Sandford v. Railroad Co., 24 Pa. 379. But the plaintiff’s motive is immaterial: Colman v. Railway Co., 10 Beav. 1; Ram-, sey v. Gould, 57 Barb. 398; Central R. Co. v. Collins, 40 Ga. 582; Bloxam v. Railway Co., 3 Ch. App. Cas. 236; Lanier v. Nash, 121 U. S. 410. There is a substantial distinction between a case like Kenton v. Railway Co., 54 Pa. 452, and one where the plaintiff had, at the time of the grievance, an undeniable and substantial interest, and is moved to act at the suggestion and instance of another. This distinction is recognized in cases cited by the appellants.
137 Pa. 565Estate of Keys (1890)
(a) A coparcener of land, in process of partition, executed a power of attorney authorizing his sister to take possession of his real estate, to lease, and to sell and convey the same, and transmitted it by a letter to her saying: “ I want you to collect the money that is coming to me from the land that is now to be sold, and keep the $250 and the interest on it that I borrowed of you: ” 1. In such ease, the power of attorney and letter operated as an equitable assignment to the sister of so much of the brother’s interest in the estate as would be sufficient to pay the indebtedness specified in the letter, and the sister to that extent acquired a vested right in such interest, which was not divested by the death of the brother after the execution of the power of attorney.
137 Pa. 569Brown v. Downing (1890)
No. 136 October Term 1890, Sup. Ct.; court below, No. 20 November Term 1888, C. P. On September 24,1888, Della Ann Elizabeth Brown, by her next friend, brought ejectment against William Downing fora certain lot in Oil City. Issue. 'At the trial on March 6, 1890, it was admitted that the United Petroleum Farms Association was the common source of title.
137 Pa. 574Campbell v. Pittsb. & W. Ry. Co. (1890)
APPEAL BY DEPENDANT EROM THE COURT OE COMMON PLEAS OE 0LARI0N COUNTY. No. 242 October Term 1890, Sup. Ct.; court below, No. 280 April Term 1888, C. P. On March 20,1888, Alfred Campbell and Catharine, his wife, in right of said wife, brought assumpsit against the Pittsburgh & Western Railway Company, filing a statement of claim alleging a right to recover from the defendant the sum of $1,100, with interest from February 8, 1887, and averring: “1.
137 Pa. 587Estate of Hazlett (1890)
137 Pa. 590Main Street, Big Run Borough (1890)
No. 2 October Term 1890, Sup. Ct.; court below, No. 22 February Term 1889, Q. S. On February 26, 1889, the burgess and town council of the borough of Big Run presented a petition, setting forth that an ordinance of said borough, enacted on October 31, 1887, directed the straightening and widening of Main street between the intersection of Hudson street therewith and the eastern boundary of the borough, as more particularly described in a draft annexed to and made a part of…
137 Pa. 595Commonwealth v. Ferguson (1890)
No. 11 October Term 1890, Sup. Ct.; court below, No. 85 December Term 1889, C. P. On September 12, 1889, a case stated was filed between the-commonwealth, as plaintiff, and John Albert Ferguson, executor of the will of John Ferguson, deceased, as defendant, wherein it was agreed as follows : “ John Ferguson, late of said county, died February 4,1889,. having first made his last will and testament, dated February-2, 1889, after his death duly probated and registered in…
137 Pa. 601First N. Bank v. N. Y. etc. Coke Co. (1890)
No. 22 October Term 1890, Sup. Ct.; court below, No. 41 August Term 1889, E. D., sur judgment No. 300 February-Term 1889, C. P. Upon venditioni exponas to No. 41 August Term 1889, in tbe court below, the sheriff having made sale of a large body of real estate of the New York & Westmoreland Gas-Coal & Coke Company, a mining and manufacturing company incorporated under the act of April 29, 1874, P. L. 73, for the sum of $55,000, subject to a first mortgage for $200,000, he…
137 Pa. 606Collner v. Greig (1890)
No. 34 October Term 1890, Sup. Ct.; court below, No. 17 February Term 1888, C. P. On February 1, 1888, William F. Collner brought ejectment against George W. Greig, and T. H. B. Patterson, assignee in bankruptcy of said George W. Greig, “ to enforce specific performance of an agreement for the sale of the undivided one fourth of three tracts of land situate in the township of Barnett.” Mr. Patterson was not served.
137 Pa. 613Fulton v. Peters (1890)
Nos. 36, 37 October Term 1890, Sup. Ct.; court below, Nos. 16, 17 February Term 1886, C. P. On November 10, 1885, James Fulton brought scire facias sur mechanics’ lien against James Peters, owner or reputed owner. On the same day, a like suit was brought by the same plaintiff upon another mechanics’ lien against Margaret Metzgar, owner or reputed owner. Issue in both cases.
137 Pa. 617Beech v. Live-Stock Ins. (1890)
137 Pa. 621Estate of Cunningham (1890)
1. The widow of a testator must make her choice between acquiescence in her husband’s disposition of his property, and the assertion, in disregard thereof, of the rights which the law gives her; she cannot take both these courses or parts of each. 2. The necessity of making such a choice, and its effect, do not legally depend in any degree upon the quantum of benefits she receives or renounces under the will, nor upon the mention or omission of her name or the presence or absence of any provision for her therein. 3. When a testator by his will directs the sale of his real estate, and his widow elects to take her rights under the intestate law, as to her there is no will and no conversion, and she cannot assert such rights against the proceeds of the converted real estate as personalty. 4. As the widow’s rights are paramount to her husband’s power of disposition, she can claim, at her election, her statutory estate in Ms land, as such, and in law it is this only to which she becomes entitled, as realty, upon electing to take against the will of her husband. . 5. In equity, however, by acquiescing in a sale made by the executor under a power in the will and claiming the proceeds, she may cause the land to pass to the purchaser discharged of her dower, and may thus become entitled to a corresponding interest in the proceeds of such sale. 6. When a widow is claiming, upon a distribution in the Orphans’ Court, adversely to the will of her husband, the question whether a formal paper, electing to take against the will, was filed by her voluntarily or under stress of an order of court, is immaterial; such a writing is unimportant except as evidence.
137 Pa. 629Lindley v. Ross (1890)
No. 195 October Term 1890, Sup. Ct.; court below, No. 55 June Term 1890, C. P. On April 21, 1890, upon a note dated August 23, 1887, with warrant of attorney to enter judgment and providing for five per cent attorneys’ commissions, if collected by process, judgment was entered in favor of J. D. Lindley against J. B. Ross, H. R. McGlumphy and Samuel Luse, “ for the sum of $1,500, payable one year after date, with costs of suit and five per cent attorneys’ commission.” On May…
137 Pa. 633Huffnagle v. Blackburn (1890)
APPEAL BY DEFENDANT, FROM THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY. Nos. 127, 128 October Term 1890, Sup. Ct.; court below, Nos. 540, 541 May Term 1887, C. P. On May 2,1887, Conrad Huffnagle brought two actions óf ejectment against James W. Huffnagle,, to recover two lots in the town of West Newton. At issue. The two causes were tried together on November 30, 1889, when evidence was adduced by the plaintiff, in substance, as follows: Upon process issued to May Term 1879, upon a judgment against Huffnagle, the plaintiff, in favor of one Croushore, the lots in dispute belonging to the plaintiff were advertised at sheriff’s sale. The plaintiff called upon one Houseman, living at Greensburg, and requested him to buy in the lots for him, but Houseman could give no definite reply at that time. Before the sale, however, Blackburn, the defendant, living in the country, suggested to the plaintiff that he would buy the lots in for him, convey them to him, and take a judgment for the purchase money. On May 17, 1879, the plaintiff and defendant came together to Greensburg, to attend the sheriff’s sale to be held on that day, the defendant buying the railroad tickets. At Greensburg, the plaintiff met Houseman, who told him that he had informed Mr. J. J. Hazlett, the plaintiff’s attorney, that he had arranged to buy in the lots for the plaintiff, if the purchase money did not exceed $2,300, when the plaintiff replied that he had not received notice of that fact from Mr. Hazlett, and that Blackburn, the defendant, had offered to buy in the lots for him. Houseman, as he testified for the plaintiff, then went to Blackburn and asked him if he was to buy the lots for Huffnagle, and the defendant replied that he was, in consequence of which Houseman refrained from bidding. A short time before the sale was Jo take place, the defendant suggested to the plaintiff to bring Mr. Hazlett down to Mr. Edgar Cowan’s law office. As to what there occurred the plaintiff testified: “ So I went down, and afterward Mr. Hazlett come, and so was Mr. Blackburn there, and Mr. Cowan and my wife. Then Mr. Cowan says to Mr. Hazlett, well, how does that thing stand with Huffnagle’s property? Well, Mr. Hazlett lie told him about so and so, he says. Well, Mr. Cowan, he says, we must look our enemy right in the face; we want everything clear; everything. Then Mr. Hazlett he took his paper and explained everything. Well, then, afterwards Mr. Cowan, he says, it is all right; he says, well, Mr. Huffnagle, you want Mr. Blackburn to buy your property in for you ? I said, that is what I understand; that he bought the property back for us on a judgment. Q. Who said this that you have just mentioned? A. I said that the understanding was that Blackburn — Objected to. Q. We do not want the understanding; just what was said. Was Mr. Blackburn there ? A. Mr. Blackburn was there. Mr. Cowan he says, he has got a notion to take a pen and write some things; then he put the pen away and says, aro, that is all right now; now Mr. Blackburn is to bujr your property and give it back on a judgment for you and you have to pay him his fee. I said that is all right, I will pay his fee. Well, then, he says, that is all right; Blackbuan will buy your property for you and you pay him his fee; well, then, he says, now, that is all right; that is the bargain. Mr. Cowan said that is all right, that is a bargain. So then we went up to the Court House.” Mrs. Huffnagle corroborated the plaintiff's foregoing testimony. Mr. Hazlett aaad Mr. Cowan were both dead at the time of the trial. At the sale which followed, the lots advertised were sold to the defendant for $1,142, and the sheriff’s deed was duly acknowledged and delivered. Three or four weeks after the sale, the plaintiff, being sick himself, sent Mrs. Huffnagle to see the defendant about having the lots re-conveyed to hian. Mrs. Huffnagle testified that she met the defendant at his house, and after she had made her purpose known to him he said he did not know what he might do if he were offered the money; that she then said, that was not the bargain, that he was to take a judgment; that defendant replied, every one must look out for himself. On September 18, 1884, when the plaintiff and defendaaat first met after the day of the sheriff’s sale, the plaintiff, accompanied by an attorney from Pittsburgh and one Heilbrunner, who had drawn his check for a certain amouait, went to the defendant, then in possession of the lots, and told him that plaintiff was now ready to repay him the money he had paid for the lots bought at sheriff’s sale, together with his expenses, in accordance with the agreement. To this offer the defendant replied that he was surprised to hear such a statemeoat, and that it was a fabrication from beginning to end, denying that such an agreement had ever been made. The defendant, in his own behalf, testified, in substance, that no such arrangement as testified to by the plaintiff and his wife was ever made by him; that the only dealing he had with the defendant was in regard to a loan to be obtained for the purpose of paying the Croushore execution, and that after consulting with Mr. Cowan, his attorney, the defendant informed the plaintiff he could do nothing for him; that he bought the property for himself, never thought of anything else, and did not tell Mr. Houseman or any other person that he would buy for the plaintiff; and that he never heard of the claim set up by the plaintiff until several years had passed after the sale. The defendant’s testimonjr was corroborated, to some extent, b}r that of his wife, his son, W. D. Blackburn, and others. • It was also shown that defendant had expended money in valuable improvements upon the property. At the close of the testimony, the court, Hunter, P. J., submitted the case to the jury, charging in part as follows: The trust here set up by the plaintiff is what is known in law as a trust ex maleficio ; that is to say, a trust created by the misconduct, or by the wrongful act of the defendant, to the injury of the party complaining. What constitutes this, is not always easily determined, and practically must depend upon the facts as developed in each particular case. I need hardly repeat this. Each particular case must stand by itself, and upon the proof offered and presented in the case; so that the instances of fraud may be as numerous, perhaps, as the cases themselves, and it would be almost impossible to pick out any particular case reported, where there is no dissimilarity in the case from the one on trial, and to say that that case controls this one under consideration. There are, however, some general rules that apply to all cases where fraud is set up. One of these rules is, that a promise by a purchaser of real estate at a sheriff’s sale, who buys with his own money, under a promise that he will convey the purchased premises to another, the defendant in the execution, for example, upon the payment of the purchase money or a certain sum, creates no trust that can be enforced by law. The mere naked promise to convey, followed by the purchase, the purchase money paid by the person making the promise, without more, we say, is not such a contract as the law or equity would enforce. So then, if you apply this rule to the cases now on trial, it makes no difference what promise Blackburn may have made before the sale or at any time, to convey the land to Huffnagle; it could not avail the latter here, and standing alone upon such promise, the same in these proceedings, in these actions, is absolutely worthless. It would be different if Blackburn purchased with Huffnagle’s money; for in such case the former would only be acting practically as agent, or in trust, for the latter. That is to say, if Blackburn promised to purchase for Huffnagle, and Huffnagle furnished the money, then the arrangement thus made could be enforced and carried out, and the law would compel the purchaser to comply with such con-' tract. But this is not contended for here. In point of fact it is not disputed that Blackburn paid the purchase price out of his own pocket. Another rule is, that if any fraud was committed by Blackburn it must have been at the time of the sale : in other words, that the title had its birth in fraud; so that any wrong or fraud committed by the defendant, Blackburn, after the sale, standing alone, would be insufficient to entitle the plaintiff to recover here. The fraud, too, must be to the injury of the party setting it up and to the benefit of him committing it; and, in cases like the one which we have now under consideration, there must be an intent to do an injury or wrong at the time the title was procured. Applying, then, this general doctrine of the law of fraud, I will be permitted to quote the language of the Supreme Court in the case of Abbey v. Dewey, 25 Pa. 416: “We have several times lately decided,” says the court, “in obedience to what we are satisfied is the law of Pennsylvania, that a purchaser at a sheriff’s sale, who practices any deceit or imposture, or, who is guilty of any trick or device the object of which is to get the property at an undervalue, thereby renders the title so acquired utterly void and worthless in his hands.” In another case which I shall quote from as being the law, the case of Hogg v. Wilkins, 1 Gr. 72, by substituting the names of the parties here for the parties in the case we refer to, the law as enunciated by the Supreme Court would be as follows: That is to say, that Blackburn’s title can only be impugned by proof: 1. That he falsely declared his purpose to buy the land for Huffnagle, upon Huffnagle refunding to him the purchase money with interest. 2. That this declaration was made with a fraudulent design to prevent or diminish competition by persons who might be bidders; and 3. That by this means he got the land at a price less than its value and less than it would have brought at a fair sale. You will then take up the evidence..... The plaintiff requests the court to charge the jury: 5. This case rests upon a very narrow basis. If the jury find there was such a contract as that alleged by the plaintiff and his witnesses, and also that the defendant was the means of preventing Houseman from becoming the purchaser for the plaintiff, Huffnagle, and if Blackburn, after the day of sale, denied that there was any such contract to purchase upon his part, then, so far as the law is concerned, the jury will, be at liberty to find verdicts for the plaintiff in both cases. Answer: We affirm this point, referring you, however, more particularly to the instructions we have given you in the general charge.5 The defendant requests the court to charge the jury: 1. To establish any trust in favor of the plaintiff in this case, he must show the agreement, the amount to be paid, the time of payment, etc. And, the plaintiff himself having testified that no agreement was made, other than that Blackburn was to buy this property for him and take a judgment, no amount having been fixed, no time of payment agreed upon, no money paid by the plaintiff, the whole matter resting in parol, and vague and uncertain, the verdict of the jury must be for the defendant. Answer: We decline so to instruct you. It might be that if the arrangement was as contended for by the plaintiff, the amount to be paid by the defendant was not fixed definitely, either as to the amount or the time of payment, and no money paid; yet this would not necessarily prevent a recovery by the plaintiff here.6 2. That the time intervening between May 17,1879, to May 2, 1887, the time at which this action was brought, and during which time the defendant expended large sums of money in repairing and improving the property, was too long; and therefore the plaintiff lost any equity to which he might have been entitled under his alleged arrangement, and cannot now recover. Answer: Nor can we affirm this proposition. This action has been brought within a period not prohibited by law; and, as to the equitable rights of the defendant, as to the valuable improvements the defendant may have made and the length of time which the plaintiff allowed to pass, these might be facts, indeed would be facts, reflecting upon what the arrangement was, if any, at the time of the sale, and in answer in part to the fraud set up by the plaintiff, yet not conclusive, as is asserted in the point.7 4. That resulting trusts can be created only by the payment of the purchase money by the party claiming to be the cestui que trust, or by fraud at the time of thev purchase on the part of the purchaser at sheriff’s sale, and both these requirements being wanting in this case, the verdict must be for the defendant. Answer: The law of resulting or constructive trusts is correctly stated in this proposition; but we decline to say to you that there was in point of fact no fraud, or at least no fraud by operation of law at the time of the purchase. We say to you that there is enough in the evidence to submit the question of fraud to the jury.0 5. That the act of April 22, 1856, P. L. 533, requires that all trusts and all agreements concerning real estate shall be in writing, and signed by the parties holding the title therefor; and the plaintiff having failed to prove the existence of any such written agreement, your verdict must, be for the defendant. Answer: This point is refused.10 7. That under the law and the evidence, the verdict must be for the defendant; and the jury are so instructed. Answer: This we refuse.18 —The jury returned a verdict in each case in favor of the plaintiff for the land described in the writ. Rules for new trials having been discharged, judgments were entered, when the defendant took these appeals assigning for error, inter alia: 5. The answer to the plaintiff’s point.5 6-12. The answers to the defendant’s points.6 to 18 As to the insufficiency of the evidence to establish the trust, counsel cited: Kistler’s App., 73 Pa. 393; Kimmel v. Smith, 117 Pa. 193; Salsbury v. Black,' 119 Pa. 200. As to § 6, act of April 22, 1856, P. L. 533: Duff v. Wilson, 72 Pa. 442; Seylar v. Carson, 69 Pa. 81; Rankin v. Porter, 7 W. 387; Maul v. Rider, 51 Pa. 386; Miller v. Bealer, 100 Pa. 584; Douglass v. Lucas, 63 Pa. 9; Clark v. Trindle, 52 Pa. 492; Best v. Campbell, 62 Pa. 478; McNinek v. Trego, 73 Pa. 52; Christy v. Sill, 95 Pa. 383.