138 Pa.

Volume 138 — Pennsylvania State Reports

87 opinions

138 Pa. 1Mark v. Osmer (1890)
[To be reported.] 1. When the purchaser of real estate at sheriff’s sale claims to be entitled to the proceeds of the sale as a lien creditor, and the sheriff, without making a special return under the provisions of the act of April 20, 1846, P. L. 411, takes the purchaser’s receipt therefor, the taking of such a receipt is an official act which the sheriff performs at his own risk. 2. If, after making such an appropriation of the proceeds of sale, the sheriff learns that there was a prior lien upon the land and is obliged to pay the same, the statute of limitations runs against his right of action to recover from the purchaser the amount so paid, not from the date at which the prior lien was brought to his notice, but from the date when the receipt was taken. 8. Where there is evidence that the purchaser, having knowledge of the existence of the prior lien, concealed it from the sheriff, and thereby induced the sheriff to accept Ms receipt, the statute might not begin to run until the discovery of such fraud and concealment; but, when no such fraud is shown, the statute will bar such an action, brought more than six years after the giving of the receipt.
138 Pa. 10Linden Steel Co. v. Imperial Ref. Co. (1890)
APPEALS BY PLAINTIEE FROM THE COURT OF COMMON PLEAS OF VENANGO COUNTY. Nos. 63, 64 October Term 1890, Sup. Ct.; court below, Nos. 100, 101 August Term 1888, C. P On August 8,1888, the Linden Steel Company, Limited, issued writs of scire facias against the Imperial Refining Company, Limited, owner or reputed owner, and the Titusville Iron Works, contractor, upon two mechanics’ liens filed by the plaintiff in the court below. On September 14,1888, affidavits of defence were filed, upon the merits, raising no question respecting the formality of the plaintiff’s claims. On November 12, 1888, the plaintiff’s attorneys entered rules on the defendants to plead, and on December 4, 1888, judgments for the plaintiff were entered in default of pleas. On December 13th, counsel for the defendants having presented affidavits excusing the failure to plead, and averring that sufficient affidavits of defence had already been filed, the court made an order opening the judgments. Thereupon the defendants filed in each case a motion to strike the lien from the record, when a rule was granted to show cause why the motion should not be allowed. Afterwards the defendants filed in each case a demurrer to the plaintiff’s claim as insufficient. The material parts of the claim for lien, recited in the scire facias at No. 100 August Term 1888, in the court below, were as follows: “ The Linden Steel Company, Limited, above named, hereby files its claim or statement of demand for shell and flange steel plates furnished for the erection and construction of material additions to the refinery of the Imperial Refining Company, Limited, known as the Union Refinery, and against the buildings and the ground covered thereby, and so much other ground immediately adjacent thereto and belonging to the said Imperial Refining Company, Limited, as may be necessary for the ordinary and useful purposes of the same, and sets forth as follows, to wit: “ First. The name of the party claimant is the Linden Steel Company, Limited; the name of the owner, or reputed owner, is the Imperial Refining Company, Limited; the name of the contractor, at whose instance and request the material was furnished, is the Titusville Iron Works. “ Second. The amount claimed to be due is 1780.66 for shell and flange steel plates furnished within six months last past, for and about the erection and construction of a material and essential addition to, and upon the credit of, the refinery, buildings, machinery, etc., hereinafter described, the particular items, amounts and the dates when said material was furnished being specifically set forth in the bill hereto annexed and made a part of this claim. “ Third. The said Union Refinery, buildings, etc., are located on a certain piece, parcel or tract of land situate within the city of Oil City, county of Venango and state of Pennsylvania, bounded and described as follows: [ Here followed the lines by courses and distances, and the adjoiners of the land;] con-, taining 12£ acres, more or less, having thereon erected a large oil refinery used to refine crude petroleum and to manufacture gasoline, etc.; which refinery has a capacity of 1800 barrels and upwards per day; a map or plan showing the exact location of said refinery, its tanks, buildings, stills, etc., being hereunto attached, made a part hereof, and marked exhibit A. “ Fourth. All the steel plates specifically mentioned in the itemized statement annexed hereto and made a part hereof were made and furnished by the said Linden Steel Company, Limited, for the erection and construction of a material and essential addition to the refinery aforesaid of the said Imperial Refining Company, Limited, to improve the same and increase its capacity and efficiency. “ Fifth. The above mentioned material and essential addition to said refinery, for and about the erection and construction of which said steel plates were furnished, consisted of one six hundred-barrel steam still for steaming naptha, said still being inseparably connected with said refinery and being an essential part thereof; the relative location of said still, and of the various component parts of said refinery, being ^hown in the map or plan above referred to, in which said map or plan, said still, for and about the erection and construction of which said material was furnished, is colored red. “ Sixth. That the said Linden Steel Company, Limited, furnished all of said steel plates, and parted with the possession thereof for the erection and construction of said steel still, to be inseparably connected with said refinery, and to constitute a necessary, essential and material addition thereto and part thereof, and so furnished all of said materials upon the faith and credit of the said refinery, or buildings, machinery, etc., and with the intention that the said refinery should be hold liable under the mechanics’ lion laws of the commonwealth of Pennsylvania for the payment of the amount due therefor; due, timely and legal notice of which intention on the part of the said Linden Steel Company, Limited, was furnished and given on the 28th day of March, A. D. 1888, prior thereto, and afterwards, to the said Imperial Refining Company, Limited, the said owner or reputed owner, and the fact that said materials were furnished upon the faith and credit of the said refinery, and that it was the intention of the said Linden Steel Company, Limited, to hold the same liable for the payment of said amount under the mechanics’ lien laws aforesaid, was expressly recognized, known and understood by all parties hereto from the very beginning of the negotiations which resulted in the furnishing of the said materials for the purposes aforesaid.” The itemized account, mentioned in and appended to the lien, contained charges bearing date March 17, 22 and 27, 1888, respectively. The draft referred to in the claim as exhibit A, showed the boundary lines of the land against which the lien was filed, and the various structures erected thereon, exhibiting the location of said structures on the tract and with reference to eacb other, their shapes and relative sizes, and various other details stated in the opinion of the Supreme Court. The names of some of the buildings and other structures represented upon the map were not given thereon, but the diagrams of them were numbered. No explanatory paper referring to those numbers accompanied the map, however. The claim recited in the scire facias to No. 101 August Term, in the court below, was filed against the Imperial refinery, and was in all respects similar to the one described above. On January 14,1889, after the filing of the motions to strike off the lien, but before the demurrers were filed, the plaintiff asked leave to amend in each case, by filing an additional paper, explaining the map filed with the lien. The following are specimens of the explanations given in the paper relating to the map of the Union refinery: “ Diagram marked No. 1 in red, on the map, represents a frame building 12 feet wide by 16 feet long and is 16 feet high. “ Diagram marked No. 2 in red, on the map, represents a frame building used for an engine house, and is 10 feet wide and 12 feet long and 12 feet high.” • The explanatory paper relating to the Imperial refinery was similar in form. Each of those papers concluded by making the following averment: “ That all of the aforementioned property is included in the lien filed in this case, and is connected and joined together by iron pipes, as represented by the various colored lines on said map, and is used and operated as one plant by the party defendant, the Imperial Refining Company, Limited.” The court granted rules to show cause why the amendments prayed for should not be allowed. No further action directly upon these rules was taken. The demurrers and the rules to strike off the claims having been argued together, the court, Taylor, P. J., on March 3, 1890, entered a decree sustaining the demurrers and making the rules to strike off absolute. Thereupon the plaintiff took these appeals, specifying in each case that the court erred : 1. In making absolute the rule to strike off the lien. 2. In sustaining the defendants’ demurrer. 3. In making the decree of March 3, 1890. 1. After filing the affidavit of defence, it was too late to object to the sufficiency of the description of the property in the lien filed: Titusville I. Works v. Oil Co., 130 Pa. 211. This principle should be particularly emphasized in the present case. If the defendants had moved to strike off the lien, at the time the affidavit of defence was filed, the plaintiff could have amended, or could have filed a new lien, as it was then less than six months after the furnishing of the materials. However, the property is sufficiently described in the lien. It furnishes on the whole a better description than that pronounced sufficient in Titusville I. Works v. Oil Co., supra. The explanatory papers, if originally attached to the liens, would have made perfect descriptive statements. 2. The plaintiff had a right, under § 2, act of June 11, 1879, P. L. 122, to file those papers and make them a part of the liens. Knox v. Hilty, 118 Pa. 430, when closely examined, is not against this position, but supports it, as do Fahnestock v. Wilson, 95 Pa. 301; Florey v. Haverford College, 24 W. N. 372; and Snyder Chapel v. Baer, 3 Penny. 530. This lien was filed under the act of June 16, 1836, P. L. 695, and its supplements, one of which is the local act of February 27, 1868, P. L. 212, operative in Venango and other counties, and expressly subjecting oil refineries and their appurtenances to a lien. The original lien is valid under that act. The act of June 5,1874, P. L. 300, which attempted to repeal the act of 1868 as to Venango and certain other counties, is unconstitutional and void, being in contravention of §§ 3, 6, 7, 8, article III., of the constitution. 1. An affidavit of defence, filed within twenty days after the return day of the writ, because required by a Rule of Court under penalty of having judgment entered against him, will not estop defendant from afterwards filing a demurrer to the plaintiff’s declaration. The affidavit of defence is not a plea, nor any part of the pleadings : West v. Simmons, 2 Wh. 261. A demurrer is one form of pleading. We do not understand Titusville I. Works v. Oil Co., 130 Pa. 211, as holding that a demurrer to a claim cannot be sustained after filing an affidavit of defence. So to interpret it would be to overrule many decisions of this court, among which are: Lybrandt v. Eberly, 36 Pa. 347; Lee v. Burke, 66 Pa. 336. In Titusville I. Works v. Oil Co., the appellant asked this court to decide, upon the authority of Thomas v. Shoemaker, 6 W. & S. 179, that the sufficiency of the plaintiff’s claim is necessarily in question upon ,a motion for judgment for want of a sufficient affidavit of defence, and this was the point in the case, as appears by the reporter’s syllabus. This court had previously adjudged the affidavit of defence insufficient, and that judgment necessarily involved a decision that the plaintiff’s claim was good in form, as otherwise no affidavit of defence would be necessary, and consequently no judgment could be entered, no matter how defective the affidavit might be. But, in the case now at bar, there was no question as to the sufficiency of the affidavit of defence, and the legality of the plaintiff’s claim was never passed on by any court, until argued upon the demurrer and motion to strike off, by which alone that question was raised in the regular and ordinary course of practice. 2. The paper by which it was proposed to amend or explain the lien, is not before this court. The plaintiff had no right to file it as an amendment. There was nothing to amend by. Amendment is not creation, and a lien which is fatally defective, for want of a description of the building, cannot be made good by filing an “ amendment ” after the lapse of six months. As an explanatory statement, it is entitled to precisely the same weight as an offer to prove by parol, upon trial, what is necessary to make good a totally defective description. The question whether the act of February 27, 1868, P. L. 212, is still in force or not, is entirely immaterial. It is now the settled law that a lien against an oil refinery may be sustained under the act of June 16, 1836, P. L. 695. But under no act of assembly can a lien be sustained without a sufficient description of the property against which it is filed. The buildings must be so described as to be capable of identification: Short v. Ames, 121 Pa. 530. The vital question in this case is, therefore, whether there is such a description, and we submit that there is not. The description is hot as particular and satisfactory as tbe one held insufficient in Short v. Ames, supra. It lacks the essentials which appear in the cases of Short v. Miller, 120 Pa. 470, and Titusville I. Works v. Oil Co., 130 Pa. 211. There is nothing to identify the structures, severally or as a whole. Their size, character, form, height, material, etc., are not given. The alleged description would apply to any refinery. An interested and inquiring purchaser or lien creditor might wander around in a labyrinth of structures upon the land described, and never ascertain to what he would obtain title, ’or how far his own lien might be affected, so far as the statement of claim gives information. 3. Prior to the act of May 1, 1861, P. L. 550, no lien could be claimed for furnishing materials for alterations, repairs or additions. By that act, a lien was given for materials furnished for an “addition to any house or other building.” Does the statement of the claim in this case, reading its language in connection with the map, show that any addition was made to any building ? Does it describe any building to which the addition was made ? The statement that it was an addition to a refinery, is not sufficient to designate the buildings composing the refinery : Short v. Ames, 121 Pa. 530. The claim shows on its face that an undescribed thing was an addition to another un-described thing, and we are asked to presume that both are substantial buildings to which the lien of a material-man could attach. Again; the act of May 18, 1887, P. L. 118, requires notice to be given to the owner or reputed owner, of the intention to claim a lien under the act of 1861, at the time the materials are furnished, and this, like every other essential fact, necessary to show the claimant’s right, should appear upon the face of the lien : Barclay’s App., 13 Pa. 495. In this case, it does not appear with sufficient definiteness that the notice was given at the time of furnishing the materials. The claim is therefore defective, in not showing affirmatively upon its face that the plaintiff was within the statutes authorizing the filing of a lien.
138 Pa. 22Citizens' N. Gas Co. v. Shenango N. Gas Co. (1890)
No. 67 October Term 1890, Sup. Ct.; court below, No. 8 March Term 1889, C. P. in Equity. On January 29, 1889, the Citizens Natural Gas Company filed a bill in equity against the Shenango Natural Gas Company, praying, upon the facts therein averred and charged: 1.
138 Pa. 35Clapp v. Township of Pinegrove (1890)
APPEAR BY PLAINTIFF FROM THE COURT OR COMMON PLEAS OE VENANGO COUNTY. No. 72 October Term 1890, Sup. Ct.; court below, No. 15 November Term 1889, C. P. On September 3,1889, E. E. Clapp brought assumpsit against the township of Pinegrove, to recover back certain moneys alleged to have been paid by the plaintiff for the use of the defendant township. The defendant’s pleas were non-assumpsit, and non-assumpsit infra sex annos. At the trial on March 10, 1890, the following facts were shown: In the year 1872, 290 acres of tract No. 2632, in Pine-grove township, Venango county, appeared in the tax lists as unseated land, being assessed as such in the name of John B. Carson & Co.; and upon such assessment county and township taxes were levied. Similar assessments and levies were made for the years 1873 to 1884 inclusive. On February 26,1877, the county treasurer made sale of 200 acres of tract No. 2632, for the taxes of 1872 so levied, and on April 25, 1877, again sold the same 200 acres, this time for the taxes of 1874 and 1875, also levied in the name of John B. Carson & Co. At each of these sales the plaintiff became the purchaser. On October 26,1878, the taxes levied, as aforesaid, upon the assessments of 1876 and 1877, being unpaid, there was a treasurer’s sale of the same 200 acres, at which the county of Ve-nango became the purchaser. On January 14,1884, one of the county commissioners called the attention of the plaintiff to the sale made to the county in 1878, and suggested that he redeem the land. Thereupon, the plaintiff paid into the county treasury all the taxes remaining unpaid upon the assessments aforesaid, together with interest thereon, and received a redemption deed from the county commissioners. At the time of the redemption, the plaintiff was ignorant that there was any illegality about the tax assessments; but, in point of fact, as he learned within a year or two before this suit was brought, there was at the time of the several treasurer’s sales no land liable to sale, answering to the description contained in the assessments upon which those sales were based, the taxes having been paid, during the period covered thereby, upon the whole of tract No. 2,682, in accordance with proper assessments against the respective owners thereof, and the assessments upon which said sales were based being erroneous duplicate assessments. One McKissick, being upon the stand as a witness for the plaintiff, the plaintiff’s counsel made the following offer: We propose to prove by the witness upon the stand that the assessors of Pinegrove township, and the commissioners of Ve-nango county, were notified that the assessment “ J. B. Carson & Co.” was erroneous, before the purchase by Mr. Clapp, and before the redemption by him. Objected to, as irrelevant. By the court: Offer overruled; exception.3 There was evidence on the part of the plaintiff that the township taxes, which were collected by means of the sales to the plaintiff in 1877, and also those which were included in the redemption money paid by the plaintiff in 1884, were paid over in due course by the county treasurer to the defendant township. At the close of the testimony for the plaintiff, the defendant offering no testimony, the court, Taylok, P. J., charged the jury as follows: The plaintiff brings this action to recover certain moneys which he alleges he has paid upon a double assessment of land in Pinegrove township, this county. It is conceded that there was a double assessment, and that Mr. Clapp, when he became the purchaser at the treasurer’s sale, got nothing; that there was no such land there, and that the taxes for which the land was sold had been paid by other parties. The sale to Mr. Clapp was in 1877, and, after purchasing it at treasurer’s sale, instead of its being assessed to him as it ought to have been, there was no change in the assessment, as I understand it, but it was carried out in the same way upon the assessment books, and ran along in that manner for years. In our opinion Mr. Clapp had some duties to perform. It was the duty of the assessor to go upon the lands and try to learn if there had been any change of owner; that was his duty, and if he neglected it, then, in our opinion, [Mr. Clapp ought to have notified these parties that he had purchased that land, or had pretended to, — at least, that he claimed there was a double assessment; given some kind of notice. He did not do so, and the suit not having been brought to recover the money back for some eleven years after this money had gone into the township treasury, and been expended for the benefit of the township, we think that the statute of limitations would run, in that case, from the time that the money was paid by Mr. Clapp.] 1 More than six years having elapsed from that time, and the money having gone into the public treasury and been expended (it is presumed that public officers do their duty, and, if they did, the money has been expended for the use of the township), we think that the statute would bar his right of action so far as that clahn is concerned. Then [there is another' claim of double assessment. Mr. Clapp afterwards neglected to pay the taxes, and the commissioners, under our act of assembly, were bound, if no one else bid in the unseated lands at the treasurer’s sale, to bid them in for the county; and on October 26, 1878, the commissioners bid in this land. Then the owner, if there was any owner, had five years in which to redeem it under the statutes. If the five years expired and it was not redeemed, that vested the title absolutely, whatever title there was, in the county; that is, there was no right of redemption in Mr. Clapp. After this right of redemption had expired, by reason of the statute, Mr. Clapp, then acting, as he says, upon the suggestion of Mr. Eakin, one of the commissioners, that he had better redeem that land, paid this other balance here claimed to redeem the land. So far as that part of his claim is concerned, that, we think, was a purely voluntary payment by Mr. Clapp. He was under no obligation to pay that money to the county or to any one else. He was a pure volunteer; and the fact that one of the commissioners advised him to do it, has nothing to do with the case at all. A man has no right to act on the advice of one of the commissioners, or all, unless he wishes, and if he does so, he takes all the chances. At this time Mr. Clapp dealt with the county as an individual, and there was no process of law; no execution or warrant, in the hands of the collector and a threat that he would sell the land. Such a state of facts would relieve the payment from being a voluntary one, that it was done under duress; but here there was nothing of that kind. It was purely and simply a matter of business with Mr. Clapp and the commissioners, and the payment in that instance was a voluntary one, and he could not recover it back. Under these instructions, if you believe the testimony here, in our opinion the plaintiff has no right to recover.] a —A verdict having been returned for the defendant, and judgment entered thereon, the plaintiff took this appeal, assigning for error: 1, 2. The parts of the charge embraced in [ ] 1 s 3. The refusal of plaintiff’s offer.3 1. In Bredin v. Cranberry Tp., 87 Pa. 441, this court held that a purchaser at treasurer’s sale of lands, doubly assessed, may recover from the township the township taxes paid by him upon such sale. The underlying principle of that decision is equally applicable to the moneys paid by this plaintiff after his purchase at treasurer’s sale, by way of redemption from the subsequent sale to the county. He had a right to redeem after the expiration of five years, with the consent of the commissioners: Philadelphia v. Miller, 49 Pa. 440. The redemption money paid by him, then, was money paid upon false representations, made and persisted in by the public officers, inducing him to-believe that he had acquired title by the treasurer’s sale to him, and that the taxes thereafter assessed were a legal charge upon his property. What he paid was not money given to the township ; nor money paid in discharge of a lawful tax upon somebody else’s property, which the township could with a good conscience receive and retain. 2. The township has in its treasury money belonging to the plaintiff which he has a right to recover in assumpsit against it: Bredin v. Cranberry Tp., supra; Thomas v. Brady, 10 Pa. 164; Miles v. Stevens, 3 Pa. 37; Johnson’s App., 114 Pa. 132 ; Babcock v. Day, 104 Pa. 4; Moses v. Macferlan, 2 Burr. 1005;. Lee v. Gibbons, 14 S. & R. 105; Smethurst v. Woolston, 5 W. & S. 109; American L. Ins. Co. v. McAden, 109 Pa. 399;. Goettel v. Sage, 117 Pa. 298; Miller v. Ord, 2 Binn. 382; Mussi v. Lorain, 2 Bro. 56; Tybout v. Thompson, 2 Bro. 27;. Johnson v. Rutherford, 10 Pa. 455; McDonald v. Todd, 1 Gr. 17; Gaines v. Miller, 111 U. S. 395; Pickard v. Bankes, 13 East 20. When does the statute of limitations begin to run against the plaintiff’s claim for moneys paid on his supposed purchase in 1877 ? It is well settled that in case of fraud, the-statute does not begin to run until the discovery of the fraud. And it is not necessary, to taint an act with fraud, that a wrong should have been originally intended: Parke v. Chadwick, 8 W. & S. 98; Rearich v. Swinehart, 11 Pa. 240. 3. This branch of the case, however, does not rest alone upon the doctrine of fraud by relation. Our rejected offer to show notice to the township and county officers of the illegal character of the assessment, which should have been received, presents a case of„ fraud pure and simple, and the plaintiff was in ignorance thereof until less than two years before suit brought. But it is unnecessary that we establish positive fraud. The case of Bredin v. Cranberry Tp., supra, necessarily assumes, that a purchaser has a right to rely upon the assessment, as a representation that there is such land as is therein described, and that it is not otherwise assessed. That representation was continued in this case until a time within six years before the bringing of the suit, and as the plaintiff was thus misled and deceived, the township and county officers knowing and concealing from him the fact that there was a double assessment, and thereby inducing him to delay his action, they cannot set up the statute against him: Morgan v. Tener, 83 Pa. 305; Wickersham v. Lee, 83 Pa. 416; Hughes v. Bank, 110 Pa. 428. 1. As to the money paid by the plaintiff upon his purchase in 1877, the action is manifestly barred by the statute of limitations. There is no proof of fraud to toll the statute, but there is proof of the most extraordinary negligence on the plaintiff’s part. In cases of fraud, the statute begins to run from the time when the fraud is discovered, or the time when by reasonable diligence it might have been discovered: Sankey v. Me-Elevey, 104 Pa. 265. In this case, after purchasing in 1877, the plaintiff abandoned this purchase for more than six years. If he had made any inquiry after his purchase, as to the location of the land, he would have discovered the facts. Moreover, he was put on notice by the fact that taxes had been paid by someone else on 90 of the 290 acres embraced in the assessment. Nor is there anything to sustain the allegation that he was misled by the subsequent assessments. There is no proof that he saw them, or that his purchase ever came to his mind from 1877 until 1884. The case of Bredin v. Cranberry Tp., 87 Pa. 441, however, does not sustain the position that the continuation of the assessments amounted to a fraudulent representation of facts. The plaintiff’s offer, referred to in the third assignment was improper, and is supported by no citation of authority. 2. The conveyance made to the plaintiff by the commissioners in 1884, although in form a grant, is in effect only a redemption: Jenks v. Wright, 61 Pa. 410. An owner may redeem after five years, with the consent of the commissioners, but only by their permission: Kunes v. McCloskey, 115 Pa. 466. And the redemption by the plaintiff was voluntary. It was not a purchase of land, and the act of April 21, 1856, P. L. 477, relative to treasurer’s sales, has no application. It was a payment of taxes merely, and the rules governing such payments control it. It was a voluntary payment of taxes which were not a personal charge upon the plaintiff, and which were received with a good conscience, under a claim of right, and expended for public purposes; and money so paid cannot be recovered back: Cooley on Taxation, 565; 2 Dillon on Mun. Corp., § 940; Union Ins. Co. v. Allegheny, 101 Pa. 256; Pee-bles v. Pittsburgh, 101 Pa. 304; McCrickart v. Pittsburgh, 88 Pa. 133; Taylor v. Board of Health, 31 Pa. 73; Mays v. Cincinnati, 1 Ohio 268. The rule that a voluntary payment under a claim of right precludes recovery, applies generally: Harvey v. Girard N. Bank, 119 Pa. 212.
138 Pa. 45Imperial Coal Co. v. Port Royal Coal Co. (1890)
No. 84 October Term 1890, Sup. Ct.; court below, No. 245 February Term 1888, C. P. On December 21,1887, the Imperial Coal Company brought assumpsit against the Port Royal Coal Company. The defendant pleaded non-assumpsit.
138 Pa. 48Veon v. Creaton (1890)
[To be reported.] (a) A father incurred expenditures of money and loss of time, in and about the nursing, care and cure of his unmarried adult son, who, while not sustaining a family relation or that of a servant to his father, had received personal injuries in consequence of the furnishing to him of intoxicating drinks, in violation of § 3, act of May 8, 1854, P. L. 663: 1. The father was not a person “aggrieved” by the unlawful furnishing of liquors to the son, within the meaning of § 3 of said act, so as to have a right of action for such expenditures and loss of time; nor could he found a right of recovery, under the act, upon the ground that the son’s injury increased the probability of the father ultimately becoming liable for his support under the poor laws. 2. The fact that the son regarded his father’s house as his home, occasionally spent some time there, paying board, and contributed part of his earnings to the father in return for the cost of his education, is not sufficient evidence of a subsisting family relation; what the effect of such a relation, continued from the time of the son’s arrival at age to the time of the injury, would have been, not decided.
138 Pa. 58Commonwealth v. N. Y. Etc. R. (1890)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP VENANGO COUNTY. No. 164 October Term 1890, Sup. Ct.; court below, number and term not given. On April 27,1887, upon the petition of W. C. Tyler and others, road commissioners of Cornplanter township, a rule was issued upon the New York, Pennsylvania & Ohio Railroad Company, to show cause why a mandamus should not issue requiring said company to reconstruct a certain public highway generally known as the Franklin and Oil City road, between Reno and Oil City, in said township. The rule was served upon M. C. Flower, “agent in the office of” the defendant company, “ there being no president, vice president, secretary, treasurer or director in my bailiwick.” Depositions on the part of the relators having been filed, an alternative writ of mandamus in 'the name of the commonwealth, ex rel. W. C. Tyler, etc., was awarded as prayed for, on November 28, 1887, and said writ was served on M. C. Flower, agent of said company at Franklin, Yenango Co., Pa., and “ by leaving a true and attested copy of the same at the office of said company in Oil City, in said county, with A. N. Simmons, at that time in charge of said office, for Mr. D. W. Guernsy, the agent of said company,” and afterwards upon D. Y. Derickson, a director of said company residing at Meadville, Crawford county, Pa. A return and a supplementary return having been filed by the defendant company, the relators on April 3, 1888, filed a “ reply and demurrer,” and on April 11th, the defendant filed a “rejoinder.” The facts shown by the pleadings, so far as undisputed, were in substance as follows: In 1807, a public highway, claimed to be the one in controversy, was laid out and opened in due and legal course. Thirty years afterward, a company was incorporated to construct a turnpike over substantially the same route, but it continued to be maintained as a public highway until about 1862, when the Franklin & Oil Creek Turnpike Company was incorporated, took possession of the highway under its charter, and improved and maintained it as a toll road until in 1865, when the Atlantic & Great Western Railroad Company, in the construction of its roadbed, so encroached upon the turnpike as to injure it materially. Thereupon the turnpike company abandoned the road, and it became and was once more maintained by the township as a public highway. In 1871, the franchises, etc., of the Atlantic & Great Western Railroad Company were sold, and the purchasers organized as a railroad company under the name of the Now York, Pennsylvania & Ohio Railroad Company, the defendant in this proceeding. The principal office of the defendant company was at Cleveland, Ohio, but its principal place of business in Pennsylvania was at Meadville, Crawford Co., Pa., where an office was maintained and where Mr. Derickson, one of its directors, resided. On August 30, 1888, the defendant company filed a motion that all the proceedings be quashed, for the reasons : 1. They were commenced without authority from the attor.ney general of the commonwealth. 2. The alternative writ was not issued in accordance with the petition. 3. The court has no jurisdiction of the case as presented on the face of the papers on file. 4. As appears by all the papers on file, the plaintiffs have no cause of action. On January 14, 1889, the motion to quash having been argued, the court, Taylob, P. J., filed the following opinion: The petition alleges that the defendant company, in the construction and operation of their road, occupied a part of the public road situate in the township of Cornplanter, county of Venango, particularly described therein, and that they had not constructed a good and sufficient road for the accommodation of the public, praying for a mandamus commanding the defendant to make such road, etc. An alternative writ was issued, which was returned served upon an agent of the defendant at Franklin, in this county. A demurrer and replication was then filed, after which the writ was served upon D. V. Derickson, a director of the company living at Meadville, in the adjoining county of Crawford. An answer and replication was then filed, when, upon motion by the defendant, a rule to show cause why all the proceedings should not be quashed was granted. Upon this rule, testimony was taken which showed conclusively and was not controverted that the principal place of business of the respondent and the residence of its principal officers and offices was in the state of Ohio, and that its principal place of business in this state was at Meadville, in the county of Crawford. The jurisdiction of the court is the only question raised. The act of June 14, 1836, [P. L. 626], inter alia provides “ That the several courts of Common Pleas, the president judge being present, shall, within their respective counties, have the like power with the Supreme Court to issue writs of mandamus to all officers and magistrates, elected or appointed, in or for the respective county, or in or for any township, district, or place within such county, and to all corporations, being or having their chief place of business within such county.” In 1845, this statute was before the Supreme Court for construction, and it was then ruled “ that a Court of Common Pleas cannot issue a mandamus to a railroad company, whose office and chief place of business is not in such county, although their road may pass through the same: ” Whitemarsh Tp. v. Railroad Co., 8 W. & S. 865. In 1847, the legislature, evidently to remedy the evil or inconvenience of the want of power in the courts, by the second section of the act approved March 15,1847, [P. L. 361,] enacted, “ That in all cases where any company has been incorporated by this commonwealth, and the principal office for the transaction of business thereof shall be located out of this state, or, where the president, treasurer, cashier or other principal officer of such company shall reside out of this state, it shall be lawful to sue such company in any county of this state, where the works of such company shall be located, or adjoining thereto, or where any director, manager or other officer of such company shall reside; and service of legal process upon such director, manager or other officer shall be valid and effective upon said company; and such company shall be taken to be both in law and in equity for every purpose of legal proceedings, to be located in this state; and shall also be liable to the writs of quo warranto, mandamus, attachment and execution; and service of such writ upon any manager, director or other officer of such company, shall be, to all intents and purposes, as effective as if served upon the president of such company, and he resident of this state, and as if the locality of such company’s office were within this state.” It is urged upon the part of the respondent that under this act the service can only be made within the county in which the writ is issued, and that the act approved May 25, 1881, [P. L. 32,] repeals the act of 1847 before recited. . The act of May, 1881, is a supplement to the act of 1886, and provides that it be amended to read as follows:. There is no repealing clause, and if any act is repealed it is by implication only. The act of 1881 is an affirmative act, and no mention is made of the act of 1847 in any of its provisions. And if such a construction can be placed upon the latter act as that both may stand, it is our plain duty to so construe it. “ Repeal by implication is not favored. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable: ” Endlich on Statutes, 280. The act of 1881 invests the court with power to grant the writ of mandamus in certain specified cases. And, if there was no prior act in force, extending or enlarging that power, the court could not entertain jurisdiction, upon the well established rule that certain objects being specified, all not specified are excluded. But the act of 1847 was in force at that time; and, as the legislature did not limit the power of the courts to ■the objects .specified in the latter act, and as the legislature is presumed to be familiar with every act they propose to amend or supplement (a violent presumption, I must admit,) and as both acts can be reconciled as not in conflict, I am of the opinion that the act of 1847 was not repealed. That act seems to have been passed to meet just such a case as the one under consideration. It provides “that it shall be lawful to sue such company in any county in the state where the works of such company shall be located, or adjoining thereto, or, where any director, manager or other officer shall reside,” etc. If service could only be had in a county where one of these officers resides, the evil in the act of 1836, which is sought to be remedied, would still remain. And the important amendment, viz., the bringing of suit in any county where the works are located or adjoining thereto, would be a dead letter upon the statute book; and, that the power to simply bring suit was' not the intention of the legislature is clearly evidenced by the further provision in immediate connection, to wit, “ and such company shall be taken to be both in law and equity, for every purpose of legal proceedings,” etc. I am of the opinion that the works of the company being located in this county a service of the writ upon a director in an adjoining county was valid. For the reasons given the rule must be discharged.1 The cause .was called for trial on February 10, 1890. Before the jury was sworn, tbe defendant again filed a motion to quash the alternative writ of mandamus, “ for the reason that the same was not issued upon information by the attorney general, or with his consent, or at his instance; as appears from the record.” By the court: Motion refused; exception.8 At the close o£ the testimony submitted, the court, Taylob, P. J., charged the jury in part as follows: The thirteenth section of the act of February 19, 1849, P. L. 85, provides as follows, which is the rule to be laid down in this case for your guidance : “ If any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith, at their own proper expense, on the most favorable location, and in as perfect a manner as the original road.” That is what you are to apply to this ease. If they have occupied any portion of the road, then they are to reconstruct it again, in the most favorable location, and in as perfect a manner as the original road at the time they took it. It is in evidence, or conceded, that the turnpike company abandoned the road shortly after the construction of the railroad ; or, that the abandonment was about twenty-five years ago; and from that time until the present the township has had charge of it. Upon the abandonment of the road it reverted to the township authorities, and it was their duty to have the road reconstructed, if necessary, or to compel the railroad company to do so, if they had occupied any portion of the public road, and had not constructed as good a one for the use of the public. “ A public road is ordinarily opened as nearly as possible to the diagram returned with the report. In process of time gradual alterations may be made until, perhaps in seventy-five or one hundred years, the original track used by the public will be found to have been gradually changed, and ground disused in consequence of the shifting of the road is so far abandoned that it may not be resumed after twenty-one years without the owner’s consent. The public has the right to the enjoyment of its franchise according to its actual occupancy, and are entitled to the breadth of road as laid out from the centre of the traveled track.” This is the general rule. In the present issue, the turnpike company had occupied, either in whole or in part, the original location, or at least occupied thirty feet, as a general rule, but not in every instance, adhered to. In the use of its franchise, and at the time of the building of the railway, it had possession in breadth of the roadway as you may find it; and, if defendants occupied or changed the site of the public road, they were bound to cause the same to be reconstructed in the most favorable location, of the same width, and in as perfect a manner as was the road when they occupied it. [There are some cases, where after great lapse of time, and after improvements have been honestly made upon the faith of appearances, and when parties could not have learned the true situation, and possession thus taken has been acquiesced in for more than twenty-one years, an equitable estoppel would be allowed, but, in my opinion, this is not one of those eases. The defendants purchased the franchise at sheriff’s sale and they took it cum onere; that is, with its burdens and subject to all the duties and liabilities existing against the original road constructing the same.] 6 You will therefore find first: Where was the traveled track at the time the railroad was built ? What was the width of the occupancy of the turnpike company at that time ? Then, from the centre of the traveled track, did the railroad company occupy any portion of that occupied by the public, within the ninety-nine rods complained of, and, if so, have they constructed as good a road in the most favorable location ? If so, you will find for the defendant. If not, then you will say for what distance, or all of the distance, they have not, and find for the plaintiffs for that part they have not so reconstructed. The defendant requests the court to charge: 4. That, although the statute of limitations will not run against the commonwealth, it will run against a municipal corporation; and, as the plaintiffs’ cause of action, if any, was complete on the construction of the road, which was more than twenty-one years before the commencement of this suit, the action is barred by the statute of limitations. Answer: Answered in the negative. The statute of limitations does not run against the public.16 —The jury returned a verdict for the commonwealth, finding that tbe defendant company bad encroached upon and occupied a part of tbe public highway for the whole distance complained of, and that they had not reconstructed said highway, etc. A rule for a new trial having been discharged, judgment was entered on the verdict for costs, whereupon the defendant took this appeal, assigning for error: 1. The discharge of tbe rule to quash.1 2. The refusal of the motion to quash.8 5. The portion of the charge embraced in [ ] 5 15. The refusal of defendant’s point.15 Counsel cited: (1) Section 18, act of June 14, 1836, P. L. 626 ; Whitemarsh Tp. v. Railroad Co., 8 W. & S. 365; § 2, act of March 15, 1847, P. L. 361; act of May 25, 1881, P. L. 32; act of June 24, 1885, P. L. 150. (2) Heffner v. Commonwealth, 28 Pa. 108; Green’s Brice’s Ultra Vires, 700; Pittsburgh etc. R. Co. v. Commonwealth, 104 Pa. 583; Buffalo etc. R. Co. v. Commonwealth, 120 Pa. 537. (5) Commonwealth’s App., 4 Pa. 164; Arnold’s Est., 46 Pa. 277; 2 Dillon on Mun. Corp., § 528; 3 Wood’s Ry. Law, 1644-45. (15) Evans v. Erie Co., 66 Pa. 222; Glover v. Wilson, 6 Pa. 290. Counsel cited: (1) Section 2, act of March 15, 1847, P. L. 361; § 14, act of February 19, 1849, P. L. 85; § 1, act of March 17, 1856, P. L. 388. (2) Hall v. Railroad Co., 3 Dill. 515; Union Pac. R. Co. v. Hall, 91 U. S. 343; Heffner v. Commonwealth, 28 Pa. 108; Commonwealth v. Messer, 44 Pa. 341; Uniontown Bor. v. Veech, 34 Pa. 293; Lamb v. Lynd, 44 Pa. 336; Porter Tp. v. Overseers, 82 Pa. 275; Commonwealth v. Berks Co., 109 Pa. 214. (5) Pittsb. etc. R. Co. v. Commonwealth, 104 Pa. 583; Commonwealth v. Railroad Co., 117 Pa. 637. (6) Pittsb. etc. Ry. Co. v. Commonwealth, 101 Pa. 192; Commonwealth v. Railroad Co., 117 Pa. 637; Barter v. Commonwealth, 3 P. & W. 253; Commonwealth v. Albur-ger, 1 Wh. 469; Commonwealth v. McDonald, 16 S. & R. 395; Philadelphia v. Railroad Co., 58 Pa. 253; North. Cent. Ry. Co. v. Commonwealth, 90 Pa. 300.
138 Pa. 66Hoge v. Dwelling-House Ins. (1890)
(ct) The recognized agent of a foreign fire insurance company wrote and countersigned a policy signed by the company’s officers, reported it to the company for approval, and, after due time receiving no reply, delivered the policy and accepted and transmitted the premium to the company, all in his usual course of dealing: 1. The property insured being subsequently destroyed by fire, the company was liable upon the policy; and it could not be heard to allege, as a defence, that as there was no evidence that when the policy was issued the company was authorized to transact business in Pennsylvania,* the policy in suit was therefore ultra vires and void.
138 Pa. 69Mullen v. McKinney (1890)
138 Pa. 73Davis Shoe Co. v. Kittanning Ins. (1890)
[To be reported.] 1. Upon receiving proofs of a loss, furnished by the assured in an attempt to comply with the requirements of his policy, it is the duty of an insurance company to examine them, and if they be found objectionable, to return them, pointing out the particular defects therein. 2. It is not a sufficient compliance with this duty to return the proofs with a letter, quoting that part of the policy which prescribes the form of the proofs and what they shall contain, and stating merely that the proofs in question are not in accordance therewith. 3. The fact that an insurance company retained proofs, so furnished, for more than fifty days without objection, and then returned them as insufficient, but without any specific objection, is evidence sufficient to justify a verdict finding waiver of any defects in the proofs supplied.* 4. And, in such case, the waiver may be found, it seems, notwithstanding a provision in the policy “ that no action taken, preliminary to an adjustment of a claim, to ascertain the amount and validity of such claim, shall be considered or treated as a waiver of any rights of this company.” 5. When a commission for the taking of testimony in another state, and the entry of its issue upon the appearance docket, bear date on different days, it is not error to permit the prothonotary to testify, on the trial of the case, that the date upon the docket is correct and that the commission was misdated by mistake. 6. When objections to a deposition taken upon a commission are made first upon the trial of a cause, in disregard of a rule requiring such objections to be taken by exception within a specified time, it is not error to admit a deposition thus taken, although the form of the final interrogatory is not in compliance with Rule 11, § 57, Equity Rules. 7. An insurance company has no right to require a public officer to act in the adjustment of its risks. Wherefore, a condition in a fire policy requiring a certificate of examination from a public officer is of no effect, and the neglect of the assured even to ask for such a certificate would be no default on his part: Universal Ins. Co. v. Block, 109 Pa. 535.
138 Pa. 91Penna. R. v. Bor. of Freeport (1890)
138 Pa. 99Sloan v. Ballentine (1890)
No. 41 October Term 1890, Sup.' Ot.; court below, No. 130 March Term 1888, C. P. On January 5, 1889, Alexander C. Sloan brought trespass against Joshua M. Ballentine and Lucinda Ballentine. Issue. At the trial on. December 3, 1889, the trespass shown was the removal by defendants of a gate from a fence of the plaintiff, and also of part of another of plaintiff’s fences.
138 Pa. 104Estate of Bracken (1890)
APPEAL BY JAMES S. BRACKEN ET AL. EROM THE ORPHANS’ COURT OE CAMBRIA COUNTY. No. 43 October Term 1890, Snp. Ct.; court below, number and term not given. The account of Samuel Reed, executor of the will of Ann Elizabeth Bracken, deceased, showing a balance for distribution of $1,102.83, having been confirmed without exception, Mr. JE. G-. Kerr was appointed auditor to report a distribution. The facts found by the auditor were in substance as follows: Ann Elizabeth Bracken died leaving a will dated November 15, 1881, by which she gave and bequeathed to Susan Bracken a colt, the household and kitchen furniture, and $300 in money, “ also share and share alike in the real estate; ” to her son James S. the sum of $1; to Nathan’s two children $1 each; to her daughters, Caroline, Margaret, Joanna, Elizabeth and Jennie (Catharine J.) “share and share alike of all my estate ; ” to Jennie (Catharine J.) the sum of $300 “ over and above her share above mentioned;” to her son William $1. The said will was duly admitted to probate on October 28, 1885, and soon afterwards an agreement under seal “ to settle and compromise all difficulties,” dated November 25,1885, was signed by Susan, Caroline, Margaret, Joanna and Elizabeth, which provided: “ That at the death of our father the land shall be sold and the proceeds divided according to the provisions of the will of our said mother, excepting that our brother, James S. Bracken, shall receive an equal share with us, viz., Caroline Garman, Margaret Keller, Joanna Orner, Elizabeth Wilson, Susan Bracken and Jennie Davis, after allowing to Susan Bracken and Jennie Davis the special bequests to them.” Afterwards, a testamentary paper, executed by the decedent under date of June 13, 1885, was discovered, which on January 2, 1886, was separately admitted to probate and was as follows: “ I, Ann E. Bracken, do charge my daughter Catharine J. Davis the sum of three hundred dollars for raising her child and wish this sum taken from my special bequest to her in my will, and have requested my sister to write [this] and hold the same until after my death, and wish this to be a codicil to my will.” It appeared, also, that on March 2, 1888, James S. Bracken had assigned all his interest in the éstate of his mother to Mal-vina S. Bracken, his wife. The auditor on April 15, 1889, filed a report, holding that, after payment of the bequests to James, William and Nathan’s two children of $1 each, and the bequests to Susan and Cath-arine J. of 1300 each, the net balance for distribution was to be divided equally among the seven beneficiaries named in the will, James S., William, Joanna, Susan, Caroline, Margaret and Catharine; and that James S. Bracken could participate in the distribution only by virtue of the agreement of November 25, 1885, which “negatived” the codicil. To arrive at the net balance for distribution, the auditor deducted from the fund in the hands of the accountant as follows: “ Auditor’s fee and advertising, 11 days,” $115; accountant’s attorney, “ appearing before auditor, 10 days,” $50. To the report of the auditor, James S. and Malvina S. Bracken filed exceptions, alleging that the auditor erred, inter alia: 1. In setting aside the codicil to the will. 2. In awarding to Catharine J. the bequest of $300 in the will, revoked by the codicil. 6. In the allowance of $50 to the executor’s counsel. 7. In the charge made for the auditor’s services. Said exceptions having been argued, the court, JOHNSTON, P. J., deciding that James S. Bracken, by excepting to the distribution made under the family agreement which he had himself procured, left himself without any standing to sustain a contest, and that his wife’s interest could rise no higher than his own, dismissed the exceptions and confirmed the distribution reported by the auditor. Thereupon the exceptants took this appeal, specifying that the court erred in dismissing the exceptions filed and in confirming the auditor’s report. Counsel cited: (1) Hess v. Hess, 5 W. 187, 192; Holliday v. Ward, 19 Pa. 485 ; Lovett v. Mathews, 24 Pa. 330; Shinn v. Holmes, 25 Pa. 142; Cochran v. Young, 104 Pa. 333 ; McCay v. Clayton, 119 Pa. 133. (2) Act of June 4, 1879, P. L. 84.
138 Pa. 109County of Cambria v. Township of Madison (1890)
No. 103 October Term 1890, Sup. Ct.; court below, No. |- September Term 1889, Q. S. On September 2, 1889, upon the petition of the overseers of the poor of the poor district of Madison township, Clarion county, an appeal was allowed from an order of removal by two justices, dated July 26, 1889, of William Randolph and others, poor persons, from the poor district of Cambria county to the poor district of said township.
138 Pa. 111Holton v. New Castle Ry. Co. (1890)
APPEAL BY PLAINTtFP EBOM THE COURT OE COMMON PLEAS OE LAWRENCE COUNTY. No. 112 October Term 1890, Sup. Ct.; court below, No. 2 May Term 1886, C. P., in Equity.
138 Pa. 116Petition of Sparrow (1890)
FOR A MANDAMUS TO THE COURT OF QUARTER SESSIONS OF MERCER COUNTY. No. 100 October Term 1890, Sup. Ct. On May 5, 1890, George E. Sparrow filed in the Supreme Court a petition, averring that the petitioner was a citizen of the borough of Greenville, Mercer county, Pennsylvania, and the owner and proprietor of a hotel in said borough known as the National Hotel; reciting an application by the petitioner to the Court of Quarter Sessions of said county, at January Term 1890, for a license to sell liquors at retail, at said hotel, under the act of May 13, 1887, P. L. 108, and the refusal thereof by said court; averring that in such refusal the said court exceeded the discretion vested in it by the law, and praying for a writ of alternative mandamus, directed to the Honorable S. S. Mehard, the president judge of said court, and finally for a peremptory mandamus, requiring the said court to grant the petitioner a license. To the petition were attached copies of petitioner’s application for license and of all the record papers connected therewith ; also, the opinion of the court below, Meiiard, P. J., refusing the application. To an alternative writ of mandamus awarded, the respondent made a return as follows : That it is true, George E. Sparrow, the complainant, made application to this court, at No. 15 January Term 1890 of the Court of Quarter Sessions of Mercer county, for license to sell vinous, spiritous, malt and brewed liquors at retail in his hotel in the borough of Greenville, this county. That complainant’s said application was duly filed on December 14, A. D. 1889, being more than three weeks before the first day of the term of said court at which said application was to bo heard; that said applicant paid the fees required by law, and a publication of his application was made in two newspapers designated by the court, three times, as required by law; said application conformed in all respects with the requirements of the law, had the necessary certificate of fifteen reputable electors of said borough, and was accompanied by a bond in proper amount, with sufficient sureties and in due form. That the said applicant was then and still is a citizen of the United States and of this commonwealth, of temperate habits and good moral character. That the National Hotel, for which said license was prayed, was then and still is a good hotel and necessary for the accommodation of the public and the entertainment of strangers and travelers. That the borough of Greenville, where the said hotel is located, has a population of nearly four thousand persons ; and there was then and is now no licensed house in said borough, or within twelve miles of it. These facts appeared and were undisputed at the hearing of complainant’s said application. But your respondent further respectfully showeth: That remonstrances were filed against said application, wherein it was alleged that said license was not a matter of public necessity; that said license was not necessary for the accommodation of the public and the entertainment of strangers and travelers; and that the granting of said license would be detrimental to the public good and an injury instead of a benefit to that community. That these remonstrances were signed by eight hundred and seventy citizens of said borough of Greenville, of whom two hundred and seventeen were males and six hundred and fifty-three were females, and all of whom were above the age of twenty-one years. That additional petitions, asking that said license be granted, were likewise filed, wherein it was alleged that such license was necessary for the accommodation of the public and the entertainment of strangers and travelers, and that the applicant was a fit person to whom to grant such license. That said additional petitions were signed by five hundred and ninety-two citizens of the said borough, of whom four hundred and seventy-one were males and one hundred and twenty-one females, and all of whom were above the age of twenty-one years. That, thereupon, your respondent, representing the Court of Quarter Sessions of the Peace in and for the county of Mercer, having due regard to the number and character of the petitioners for and against said application, considered that the clear preponderance was in favor of the remonstrants and against the petitioners; and, therefore, determining that the license prayed for was not necessary for tlie accommodation of the public and entertainment of strangers or travelers, refused to grant the same. The respondent respectfully states, that he is of opinion that, notwithstanding all the facts favorable to complainant’s application above set forth, the preponderance of the remonstrants against, over the petitioners for said license, was of itself a sufficient ground for concluding that the same was not a matter of public necessity, and therefore a just and lawful ground for refusing to grant it; and that this opinion is based upon our-, acts of assembly as interpreted by your honorable Court. That the acts of assembly in force in Mercer county, conferring discretion upon the Court of Quarter Sessions in the matter of granting and refusing liquor license, are the general act of May IB, 1887, P. L. 108, and the special act of April 8, 1867, P. L. 893. —After quoting § 7, act of May 13, 1887, P. L. 108, averring that said section confers upon the courts of Quarter Sessions a discretion similar to that conferred by the general act of March 22,1867, P. L. 40, though in more positive terms, and quoting from the opinion of the Supreme Court in Reed’s App., 114 Pa. 452, construing said act of 1867, the return continued: The respondent is aware that the expressions quoted were obiter dicta; nevertheless, he understands that they were deliberately made for the instruction of lower courts, so that they might not in the future misapprehend the force and effect of remonstrances against such applications. The respondent further respectfully states, that ho is of opinion that the necessity for the license to sell vinous, spirituous, malt and brewed liquors is distinguishable, under our law, from the necessity of the hotel as a place for public entertainment; that our acts of assembly, relating to liquor license, have in view only the regulating and restraining of the sale of intoxicating liquors, and have no purpose affecting the right of any one to keep a house for the entertainment of the public; that when the necessity of the house for the accommodation of the public and the entertainment of strangers and travelers appears, the necessity for the liquor license appears presumptively also; but that this is only a presumption of fact, which may be overcome by proof, and that the contrary is properly shown by a sufficient preponderance of the remonstrants against, over the petitioners for sucb license; that this distinction appears by comparing the fifth section of the act of 1887, with the seventh section; the former, in prescribing the contents of the petition, mentions only the necessity for the house for the accommodation of the public, but the seventh section makes the additional petitions and remonstrances refer to the necessity for the license to sell vinous, spirituous, malt or brewed liquors. Moreover, the respondent apprehends that the same distinction has, in effect, been recognized by your honorable Court in the opinion delivered in Reed’s Appeal, supra. The application in that case was for a wholesale liquor license. What was there said was predicated, therefore, of such a license, which, of course, does not contemplate a necessity for the house. The act of assembly, on which that opinion was based, is the act of March 22, 1867, which did not mention wholesale liquor licenses, but had special reference to hotels and eating houses. If remonstrances had the effect to prove that a wholesale license, not specially embraced in the provisions of the act, was not necessary, the more clearly would they appear to have the same effect as to a retail license, which the act was specially intended to regulate. The construction given to the act of 1867 in Reed’s Appeal, has been recently approved by your honorable Court: See Nordstrom’s Petition, 127 Pa. 542. The respondent therefore concludes that the words house and license, as used in the acts of 1867 and 1887, are not convertible terms, but are separable and distinct, and that a necessity for the one may exist without a necessity for the other. The respondent, while showing that it is his earnest wish and purpose, in representing the Court of Quarter Sessions of Mercer county, to administer the laws relating to liquor licenses according to their true spirit and meaning, respectfully submits that complainant’s application for a retail liquor license was duly heard, was carefully considered, and was lawfully refused- —The petitioner demurred to the foregoing return as insufficient in law, and the respondent filed a joinder in demurrer. 1. In attempting to decide as to the necessity of sales of liquors, tbe Court of Quarter Sessions exceeded its powers and failed to exercise the discretion Tested in it by the act of assembly. The interpretation which it put upon § 7, act of May 13, 1887, P. L. 108, seems to be based upon the idea that the statute has in view only the regulating and restraining of the sales of intoxicating liquors, and has no purpose affecting the right of any one to keep a house for the entertainment of the public; that is, that the act of 1887 is a step in advance of all previous retail license laws, and that such a license is not necessarily connected with the keeping of a hotel or an eating house. Such a construction of the law is not tenable. “ The whole theory upon which retailers are licensed, and it is the theory of the law, is that they are needed for the public accommodation, to provide places where strangers and travelers may rest and procure needed refreshment: ” Pollard’s Petition, 127 Pa. 507. 2. The provisions of § 7 of the act of 1887, are copied almost verbatim from § 1, act of March 22,1867, P. L. 40, as will appear by a comparison of the two acts. The act of 1867 has been clearly construed by this court, in Schlaudecker v. Marshall, 72 Pa. 200, as requiring the license court to ascertain, inter alia, the necessity of the applicant’s house for the accommodation of the public, as a hotel or as an eating house. Under that ruling the application should have been granted in this case, upon the facts found by the court. The dictum of this court in Reed’s App., 114 Pa. 452, does not, and was not intended to overrule Schlaudecker v. Marshall, supra. In the Reed case, the application was for a wholesale license, in which there is no actual distinction between the necessity of the license and the necessity of the place. The question raised here was not considered, and it is not possible that a well-considered case like Schlaudecker v. Marshall, would be reversed or modified by a dictum in a per curiam decision. 3. The act of May 13, 1887, was not intended to abolish the sale of liquors, but merely to curb and license the same. In passing a law to restrain and regulate such sales, the legislature has decided the question of their necessity, for the legislators would not have stultified themselves by passing a law to license sales which are unnecessary. It is absurd to say that sales might be necessary in some places and not in others, for whatever is required to accommodate the public and entertain strangers and travelers in one place, is equally necessary in all others. If a hotel is required for that purpose, the question whether or not the citizens of the district in which it happens to be situated, think, as a matter of morality or expediency, that the sale of liquors is unnecessary, is .beside the case, for the legislature has already determined that questioñ in passing the law. The interpretation which has been put upon the act in this case, makes it a local option law, broader than the local option act of March 27,1872, P. L. 49, since it' permits the citizens of the district to determine what particular houses shall have license. This the legislature never intended.
138 Pa. 126Sourwine v. Claypool (1890)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY. No. 121 October Term 1890, Sup. Ct.; court below, No. 191 June [Term 1887, C. P. On April 20,1887, John D. Sourwine and Ellen, bis wife, in right of and to the use of said wife, brought assumpsit against C. O. Glaypool, executor of Daniel Shaeffer, deceased, to recover the sum of $600, alleged to have been received by said Daniel Shaeffer in his lifetime, for the use of the said Ellen Sourwine. Issue. At the second trial on March 18, 18.90, the following facts were shown upon the part of the plaintiffs : The beneficial plaintiff, Ellen Sourwine, was a daughter of Daniel Shaeffer, deceased. In 1865 she was married to John D. Sourwine ; and, not long thereafter, Daniel Shaeffer contributed $400 toward the price of a tract of land in Indiana county, purchased by her husband. No note or obligation for the repayment of this money was then taken, and there was no agreement for its repayment. The only evidence as to the nature of the transaction consisted of declarations of Daniel Shaef-fer not made in the presence of either of the plaintiffs, to the effect, in substance, that he made the contribution as a gift to his daughter, intending that it should go into the land for her benefit. One or two of these declarations were made before the payment of the money, and stated a purpose to make such a contribution; the others were subsequent to its payment and were statements of what Mr. Shaeffer had done. The most important of the declarations, shown in the testimony, are quoted in the opinion of the Supreme Court, infra. After Sourwine and wife had gone into the occupancy of the land above mentioned, Daniel Shaeffer took from Sour-wine a judgment note for the $400, payable to himself. He subsequently told another daughter that John had got the deed for the land made in his own name and he was not pleased about it, and had made John give him a note for Ellen’s share, $400 ; that he took the note because he was afraid that John, having the deed in his name, would squander the money. In 1873 or 1874, John Sourwine entered into an article of agreement for the sale, of the land to Jonas Hileman, for $1,000, and received $100 on account of the purchase money. Learning of this, Shaeffer sent his son to Indiana county with the $400 judgment note, had it entered, had the laud levied upon and sold at sheriff’s sale thereunder, as the property of Sourwine, and became its purchaser. After some litigation by ejectment with Hileman, he finally collected from the latter $900, the unpaid residue of the purchase money upon the article of agreement. Of that sum there remained in his hands, after paying his bid at the sheriff’s sale and the expenses of the litigation, $600. A number of declarations, made about the time of this transaction and subsequently, by Daniel Shaeffer to his son John Shaeffer, his daughters, Lucinda Shearer and Sarah Claypool, his daughter-in-law, Sarah Shaef-fer, and other persons, part of which are quoted in the opinion of the Supreme Court, infra, were shown in the testimony. Their general purport was that his purpose in selling the land was to get out of it the .$400 which he had put into it for Ellen, so that he might prevent John Sourwine from getting it and squandering it and save it for Ellen; that the $600 remaining in his hands, after “squaring” up everything, was Ellen’s money, and he was holding it for her, and that, as soon as they would look up a place that pleased them, he was going to invest it in laud for her, so that John Sourwine could not get it, to go through with it. To one witness he said that he would pay it to her when he was ready. To another he said that if he did not give it to her himself, she would get it after he was gone. Some of these declarations were testified to have been made within a short time of Sheaffer’s death in 1886. The defendant presented testimony tending to show that, in the spring of 1883, Mrs. Sourwine was at her father’s house, and that they had a quarrel about this money, she asserting that he owed her $600, and he saying that she and John had squandered $600 and he did not owe them anything, and offering to give her $50 if she would go away and leave him alone, to which she replied that she did not want any of his thieving, stolen property. This quarrel, one of the defendant’s witnesses testified, lasted a week. At the close of the testimony the court, Mekabd, P. J.,' 35th district, specially presiding, charged the jury in part as follows: [In this case, the plaintiff’s claim to recover is, that there was a gift of four hundred dollars by Daniel Shaeffer to Mrs. Sourwine.]4 You must find from the evidence in this case that there was not only the purpose in the mind of Daniel Shaeffer to give this money to his daughter, but that he actually gave it to her; otherwise your verdict must be in favor of the defendant. [It is not essential, however, that the money should have been given directly to Mrs. Sourwine. It is sufficient if Daniel Shaeffer made an absolute and unconditional payment of this money to some one else for her benefit.] 6 If the evidence in this case satisfies you tbat Daniel Shaeffer gave the money, either to John D. Sourwine or the one from whom the land was bought, not as the absolute property of Mrs. Sour-wine, but he reserving at the time a control over it, but intending tbat he would use that control for the use and benefit of Mrs. Sourwine, that was not a sufficient giving, and your verdict would have to be in favor of the defendant. Now, if the only evidence in this case were that Daniel Shaeffer had invested four hundred dollars in this land for the benefit of Mrs. Sourwine, and at the time he invested it he took a note in his own name for four hundred dollars, the plaintiff could not recover, in our opinion. If the note of four hundred dollars was made at the time the money was invested, and that four hundred dollar note was taken in the name of Daniel Shaeffer, we would say clearly that it evidenced the intention of Daniel Shaeffer to retain the control of the money, and that it could not be called an executed gift; but, if his intention was to make an absolute investment there, and a clear, unconditional gift to Mrs. Sourwine, and he made that without taking any note or evidence of indebtedness at that time, but relinquishing all control of it, — and even though he afterwards assumed control, the subsequent assumption of the control would not destroy the validity of the gift; but you are to take into consideration the fact of the note being given, as well as the testimony indicative of what the real transaction was, at the time the four hundred dollars was invested, as indicative of all that was done and what was intended to be done by Daniel Shaeffer. Now, if Mrs. Sourwine had a valid legal claim against her father, you can reasonably ask why she did not bring suit. If there is no apparent reason for her not bringing suit, and a great length of time has elapsed, that is a fact rveighing against the probability of her having a valid legal claim against her father. You are of course to consider that it was father and daughter, and whatever explanation that would be to your minds for the delay in bringing suit, or her failure to do so in the lifetime of her father. On the other hand, you are to consider the fact, if you believe it to be a fact, that she and her father had a violent dispute, ending in an open rupture, in which she said she would not have any of his thieving, stolen money, and to inquire whether one who had a valid legal claim, and who would use such language as that towards her father, would upon the ground of affection and filial regard hesitate to bring suit against her father, or whether that was a sudden exclamation of passion, and not indicative of the settled feelings of the plaintiff towards her father. You are to have in mind all these things; and, gentlemen of the jury, you are not, in any of your deliberations, to forget for a moment that the pivotal point in this case, is whether or not Daniel Shaeffer made a completed and unconditional gift of this money to his daughter, or whether he only intended an investment of which he would retain control and which he would use for his daughter’s benefit. If it was the former, and you find that after that was made, and in consideration of that Daniel Shaeffer received into his hands money from Mr. Hile-man, and that the amount of money he realized after the payment of expenses was $600, then you should render a verdict in favor of the plaintiff for $600 together with interest; but, if you do not so find, then your verdict should be in favor of the defendant. The defendant requests the court to charge : 1. That, under all the evidence in the case, the plaintiff is not entitled to recover. Answer: This request is refused. We leave it with you, gentlemen, to say whether or not the plaintiff is entitled to recover, in view of the evidence in the case and the law as it has been laid down to you.1 2. That something more specific than loose declarations is necessary to furnish that solid and satisfactory ground on which the court is to decide the rights of property; there being no evidence in this case of anything except admissions, the plaintiff cannot recover. Answer: This is a question which you have heard the counsel on both sides discuss with great earnestness and ability. It is a question upon which we have our own doubts, viz., whether it is sufficient for the plaintiff to rest upon the admissions of Daniel Shaeffer, not only as to the fact of his intention, but as to the fact that he actually did make a gift of this money to his daughter, without accompanying proof of what took place at the time the money was invested; but we do not instruct you in this case that the plaintiff cannot recover for that reason. We leave it to you to say, under all the evidence, whether there was such an intention to give, and whether there was also such an unconditional gift made absolutely by Daniel Shaeffer; but we reserve for subsequent consideration the question whether the declarations or admissions of Daniel Shaeffer are sufficient to sustain a verdict in the event of your finding in favor of the plaintiff.8 3. There is no evidence in this case of a delivery of the claim sued for, and the plaintiff is not entitled to recover. Answer: This request is refused, the plaintiffs relying upon the admissions or declarations of Daniel Shaeffer.3 The jury found a verdict for the plaintiff for 1563.21. Rules for judgment for the defendant non obstante veredicto, and for a new trial were discharged, Mehard, P. J., filing an opinion in part as follows : The theory upon which plaintiff seeks to recover is as follows: That John D. Sourwine, plaintiff’s husband, purchased, by executory contract, a piece of land in Indiana county, Pa., and at that time Daniel Shaeffer paid on the land four hundred dollars, for the benefit and as a gift to his daughter, the plaintiff; that thereafter Daniel Shaeffer, learning that John D. Sourwine had taken a deed for the land in his own name, procured a note from Sourwine to secure the four hundred dollars for Sourwine’s wife, and that Shaeffer took that note in his own name; that thereafter Shaeffer, having obtained judgment on the note, sold the land and purchased in his own name; that Shaeffer re-sold the land to one Jonas Hileman and realized from said sale, after the payment of all costs and expenses, at least six hundred dollars. To recover this sum the suit was brought. The jury found the facts involved in this theory in favor of the plaintiff. It is contended by the learned counsel for defendant that they do not embrace a delivery of the alleged gift to the donee, Mrs. Sourwine. It is to be borne in mind that the gift relied upon by plaintiff is not of the six hundred dollars paid by Hileman to Shaeffer for the land, but of the four hundred dollars paid by Shaeffer on the land bought by Sour-wine for the benefit of his daughter Mrs. Sourwine. The jury have found that Shaeffer paid that over as an absolute gift to his daughter, intending it as such, and not reserving any interest in or control over it. It is not necessary that the money should have been paid directly to the donee; it was a sufficient delivery if paid to a third person on her behalf: Kilby v. God-win, 2 Del. Ch. 61; 3 Pomeroy’s Eq., § 1149, n. 3. Inasmuch as Mrs. Sourwine was a feme-covert at the time, and the gift was to her advantage, the law accepted it for her, so that no proof of acceptance was necessary: Dehevillon v. Evans, 39 Cal. 120; Jackson v. Bodle, 20 Johns. 184; Darland v. Taylor, 52 la. 503; 1 Washburn, R. P., 468, *315; 3 Pomeroy’s Eq., 89, § 1149, n. 1. If those were the facts in the transaction, it was a valid, executed gift of the four hundred dollars, and was, of course, not revocable: Greenfield’s Est., 14 Pa. 489. Thereafter, Mrs. Sourwine alone was entitled to the benefits arising from this money. If it was the consideration of a note given by Sourwine to Shaeffer, for the purpose of securing the money to Mrs. Sourwine, or even without that purpose, the equitable right to the security would still be in Mrs. Sourwine. But the plaintiff’s case rests solely on declarations of Daniel Shaeffer made to third persons, so far as the evidence of the gift of four hundred dollars is concerned. It is earnestly contended on behalf of defendant, that such declarations, made to third persons, are not legally sufficient to sustain a verdict against a decedent’s estate. A discussion of the authorities will not be undertaken here. The examination given to the cases decided by our Supreme Court leads to the conclusion that they may be divided into three classes, viz.: 1. Where the plaintiff seeks to establish a parol gift or sale of land. In such case, declarations of the decedent made to third persons are not sufficient in law to sustain the claim. The parties must be brought face' to face when the terms of the bargain are stated: Harris v. Richey, 56 Pa. 395; Burgess v. Burgess, 109 Pa. 312. 2. Where the circumstances under which the declarations are made show that no weight should be given them ; or, where they indicate only an intention, rather than a deliberate admission of fact. In such case, they are likewise insufficient to sustain a verdict: Pollock v. Ray, 85 Pa. 428. 3. Where plaintiff’s claim does not rest on a parol gift or sale of land; in. which case, if the declarations relate to existing conditions, and are sufficiently full, clear and precise, they may be sufficient to warrant a verdict in favor of the plaintiff: Miller’s App., 100 Pa. 568. —Judgment having been entered, the defendant took this appeal, specifying tbat tbe court erred: 1-3. In tbe answers to tbe defendant’s points.1 to 3 4, 5. In the parts of the charge embraced in [ ] 4 5 6. In not entering judgment on the reserved question for the defendant. The claim in this case rests entirely upon alleged admissions of Daniel Shaeffer, deceased, to third persons, not made in the presence of Mrs. Sourwine, nor to persons in any way representing her. Such loose declarations are insufficient to establish a claim like this against a dead man’s estate: Zimmerman v. Zimmerman, 129 Pa. 237; Keyser’s App., 124 Pa. 82, per Pen-rose, J., sustained by Supreme Court; Sandford v. Decamp, 8 W. 544; Wharton on Ev., § 1077; Burgess v. Burgess, 109 Pa. 316; Miller’s App., 100 Pa. 572. The plaintiff cannot recover oil the ground that the $600 was received by the decedent for his daughter, without proof of a consideration: Kennedy v. Ware, 1 Pa. 445; Linsenbigler v. Gourley, 56 Pa. 166; Trough’s Est., 75 Pa. 115. Upon the point that there was a gift to the daughter, the case is fatally defective, as there is no evidence of delivery. She herself appears never to have known of the so-called executed gift, as when brought face to face with her father she makes no such claim. If there had been a delivery to her, certainly she would have known about it. To perfect a gift there must be an actual delivery, a parting not only with the possession, but with the dominion of the property: Bond v. Bunting, 78 Pa. 210; Zimmerman v. Streeper, 75 Pa. 147. The conversations of Daniel Shaeffer were not loose declarations, but a recounting to his children of what he had actually done. They were evidence in support of the plaintiff’s claim: Miller’s App., 100 Pa. 572. They were neither loose, uncertain, nor ambiguous; and they were corroborated by tbe circumstances. As the court below clearly shows, iu a case of this kind the evidence was sufficient to submit to the jury.
138 Pa. 137Union Type Foundry v. Kittanning Ins. (1890)
No. 130 October Term 1890, Sup. Ct.; court below, No. 215 September Term 1888, C. P. On August 24, 1888, the Union Type Foundry brought as-sumpsit against the Kittanning Insurance Company, on a policy of insurance in the sum of $1,000 upon certain property of the plaintiff situated in the city of Chicago, Illinois, said policy being dated May 7,1887, and issued by the defendant company to the plaintiff.
138 Pa. 143Estate of Gilpin (1890)
APPEAL BY J. H. MCCAIN, EXE., EBOM THE ORPHANS’ COURT OE ARMSTRONG COÜNTY. No. 161 October Term 1890, Sup. Gt.; court below, No. 6 December Term 1886, O. G. On December 8,1886, James H. McCain, executor of the will of John Gilpin, deceased, stated a first and partial account in the estate of his testator. In said account, the accountant charged himself with assets aggregating 192,188.91, of which the sum of 167,775.26 represented cash actually collected.
138 Pa. 153Bondz v. Pennsylvania Co. (1890)
[To be reported.] 1. Where no exception was taken to the refusal by the court below to take off a judgment of peremptory nonsuit entered, the testimony for the plaintiff cannot come before the Supreme Court, and the action of the court below in refusing the motion cannot be reviewed: Tasker v. Sheldon, 115 Pa. 107.* 2. Facts arising upon the evidence can find their way into the record in but three modes: (a) By the finding of a jury, called a special verdict; (6) by the agreement of the parties, called a case stated; and (o) by the certificate of the court contained in a bill of exceptions: Miller v. Hershey, 59 Pa. 64.
138 Pa. 156Anderson v. Oliver (1890)
No. 203 October Term 1890, Sup. Ct.; court below, No. 2 December Term 1889, C. P. On September 3, 1889, Lars Anderson brought trespass against Henry W. Oliver and others, partners as Oliver Brothers & Phillips, to recover damages for personal injuries alleged to have been suffered by the plaintiff through the negligence of the defendants. The defendants pleaded not guilty.
138 Pa. 162Rohrer v. Cunningham (1890)
APPEAL BY DEPENDANTS PROM THE COURT OP COMMON PLEAS OP ARMSTRONG COUNTY. No. 88 October Term 1890, Sup. Ct.; court below, No. 188 September Term 1887, C. P. On September 3,1887, an appeal was entered by the defendants from the judgment of a justice of the peace in an action by George S. Rohrer against Alexander Cunningham and Josiah Klingensmith. Issue. At the trial on December 18, 1888, upon evidence as to the facts sufficiently stated in the opinion of the Supreme Court, the plaintiff claimed to recover the value of an organ which had been distrained and sold by Alexander Cunningham, bailiff, for rent due from one William Vaughn, tenant, to Josiah Klin-gensmith, landlord, the organ at the time being under lease by the plaintiff to Clara Vaughn, a daughter of William Vaughn, the tenant, and living in his family. At the close of the testimony, the court, Neale, P. J., answering certain points presented, instructed the jury: We have been requested to answer points presented by the plaintiff: 1. That if the jury find that the defendant, J. Klingensmith, had notice of the sale to G. S. Rohrer on November 24, 1886, and that Wm. Yaughn, the father of Clara Vaughn, the lessee, who lived in and was a member of the family of the said Wm. Vaughn, gave notice to J. Klingensmith of the lease to Clara by G. S. Rohrer, then said notice is a sufficient compliance with the terms of the act of assembly, and the verdict of the jury ought to be for the plaintiff for the value of the organ, with interest thereon from April 16, 1887. Answer: That point is affirmed; but we refer you to the provisions of the act of assembly, for your determination whether or not, even if such notice was given, it was given by the agent of Mr. Rohrer or the agent of Miss Clara Vaughn. It says, in these words: “ Provided, that the owner or owners of any such piano, melodeon or organ, or his or their agent, or the person or persons, etc., shall give notice to the landlord or his agent that the instrument is leased or hired.” You will ascertain whether or not Mr. Vaughn was such an agent.3 On the part of the defendant, we have been requested to charge you as follows: 1. The act of 1876, under , which the plaintiff claims, is in derogation of the common-law right of the landlord to distrain for rent, and, therefore, must be construed strictly. Answer: That point we affirm; we have explained that to you. 2. That, in order to exempt the organ in suit from levy and sale under the landlord’s warrant, the plaintiff, or his agent, or the lessee, was in duty bound to give notice of the lease to the defendant; that this notice should have been clear and explicit, naming the make and style of the organ, so that the landlord would not be misled when he made his levy; and should have been in writing, and if not in writing, the burden is on the plaintiff to prove that the notice was heard and understood by the defendant. Answer: That point is affirmed; but, as to a particular description of the organ, we do not say as fully as this point would require us to say. It must be such a notice that would describe the particular organ that is in suit. 8. That, under all the evidence in this case, the verdict must, be for the defendant. Answer: That point we refuse; this is a question that we submit to the jury under the law and the facts.4 —The jury returned a verdict in favor of the plaintiff for $55. A rule for a new trial having been discharged and judgment entered, the defendants took this appeal assigning for error: 8. The answer to plaintiff’s point.3 4. The answer to defendants’ point.4 Counsel cited: Wireman v. Ditson, 5 W. N. 428; McGeary v. Mellar, 87 Pa. 464; Lehigh Yalley Ins. Co. v. Fuller, 81 Pa. 400; Haddock v. Commonwealth, 108 Pa. 249; East Union Tp. v. Ryan, 86 Pa. 465.
138 Pa. 165Schotte v. Meredith (1890)
No. 211 October Term 1890, Sup. Ct.; court below, No. 258 March Term 1889, C. P. On February 23, 1889, Charles T. Schotte brought assump-sit against William B. Meredith, administrator of F. G. Schotte, deceased, to recover the sum of $2,000, with interest from February 23, 1886, payable under a contract for the sale of real estate. The defendant pleaded non-assumpsit.
138 Pa. 168Wallace v. New Castle Etc. R. (1890)
138 Pa. 174Hebb v. Kittanning Ins. (1890)
APPEAL BY DEPENDANT PROM THE CODRT OP COMMON PLEAS OP ARMSTRONG COUNTY'. No. 177 October Term 1890, Sup. Ct.; court below, No. 144 June Term 1888, C. P. On April 14,1888, Lavina S. Hebb and Thomas P. Hebb brought assumpsit against the Kittanning Insurance Company, upon a policy issued by the defendant, dated June 8,1887, insuring the plaintiffs against damage by fire to the amount of $838.88, as follows: $666 on a frame hotel building at St. George, Tucker county, West Virginia, and $167.33 on furniture, etc., contained in said building. The plaintiffs’ statement of claim recited the contract of insurance contained in the policy, and averred that on December 16, 1887, during the term for which the policy was issued, the property insured thereby was totally destroyed by fire, the hotel building being then worth at least $3,000 and the personal property at least $573.35; that, on the same day, the plaintiffs gave the defendant notice of said loss, and afterwards, to wit, on December 21, 1887, delivered to the defendant as particular an account thereof as the nature of the case permitted, and produced to the defendant full and adequate proofs; that the plaintiffs had in all respects complied with the conditions of said policy, but the defendant had not paid or made good said loss, and there was now due from the defendant to the plaintiffs, $833.33, with interest from March 22,1888. A copy of the policy sued on was appended to the statement of claim as a part thereof, but no copy of the application for the insurance was attached to the copy. The defendant, having been served with a copy of the statement of claim, filed an affidavit of defence, which, after averring that the paper called a declaration and statement, filed by the plaintiff, was wholly insufficient and defective under the law and practice of this commonwealth, and reserving all objections thereto, set out a defence to the plaintiffs’ claim as follows: “ That the said plaintiffs, by the application and otherwise, did procure the policy of insurance sued upon, by representing and alleging that the building embraced by the said policy of insurance and insured by said company defendant, was wholly owned, possessed and controlled by said plaintiffs, as a three story frame shingle-roof hotel, with two story addition, situated as the said policy described, in fee; whereas in truth and in fact, the said plaintiffs were not the owners, possessors or controllers of the whole of said building, nor was its use and occupation at the time the property was insured, before or since, occupied wholly as a hotel; nor had the said plaintiffs fee title to whole of said building and ground upon which it was situated, but that of one room in said building the fee title was in and yet continues in St. George Lodge No. 39, I. O. O. F., used and controlled by said lodge and without the control of said plaintiffs; and also there was one room and ware-room in said building occupied by W. A. Lipscomb & Co., as a store, which was a fact at the taking out of the policy of insurance, and did so continue to the date of the said fire; which facts the said company ascertained only from the plaintiffs’ proofs of loss since said fire, and was never informed or made aware of the said facts in any other manner or at any other time, but the same facts were fraudulently concealed from said company by the said plaintiffs. “ And the said defendant company further says that by the terms of the policy sued upon, it is thus provided: ‘No. 1. Conditions and limitations of this insurance ; What will render this policy void unless stated — : This company will not be liable under and by virtue of this policy if there be any omission, misrepresentation, non-disclosure or concealment of the title, encumbrance, condition, location or occupancy of the property, etc., etc.; in each and every case, this insurance is void and this policy ceases and determines.’ And the said company defendant further says that by reason of said condition, and the said concealments, etc., the said insurance was void and the policy was of non effect, and before the said fire by the reason of the premises the said policy had wholly ceased and been determined. All of which facts this company defendant can prove on the trial of the case, by legal and competent evidence.” The History of the Case of the defendant company (appellant) stated that the application, referred to in the affidavit of defence, was in writing. A rule for judgment for want of a sufficient affidavit of 'de-fence having been argued, the court, Neale, P. J., on August 5, 1889, filed the following opinion: Whether or not the defendants have a meritorious defence to this action, we cannot say. The affidavit of defence would indicate that the defence would be meritorious; but, by reference to the authorities cited by the plaintiff, it would seem that the affidavit of defence is insufficient. The act of May 11,1881, P. L. 20, makes it obligatory upon this defendant company to attach to the policy a copy of tbe application, otherwise it is not to be received in evidence or made a part of the contract. And, whilst the affidavit of de-fence refers to this, as a part of the contract, nowhere is this fact set out. Nor is any other paper presented to the courtj either by copy or otherwise, by the defendants. We are therefore left wholly to inference, or compelled to accept the defendant’s conclusions, which cannot be done. The case of Erie City v. Butler, 120 Pa. 874, is a strong authority upon this point, and under that authority we feel constrained to sustain the motion. The rule for judgment is therefore made absolute.1 —On August 6, 1889, upon application of the defendant for a re-argument, the court granted a rule to show cause why the judgment should not be opened. After argument thereof, the court, RaybuhN, P. J., on August 4, 1890, discharged the rule to open, at the cost of the defendant; exception.0 Thereupon the defendant took this appeal, specifying that the court erred: 1. In making absolute the rule for judgment.1 2. In discharging the rule to open the judgment.8 1. The procedure act of May 25, 1887, P. L. 271, did not change the law and practice which prevailed prior to its passage, respecting affidavits of defence. In § 5 it provides that judgments for want of a sufficient affidavit shall be taken “ in accordance with the present practice.” An insurance policy does not come within the affidavit of defence law, as it is not an instrument for the payment of money, but a contract of indemnity; and the insurer’s liability, in the event of a fire, is conditioned upon the performance of certain duties by the assured, and dependent, as to its extent, upon the existence and amount of concurrent insurance, as well as upon the value of the property destroyed: Morton v. Insurance Co., 12 Phila. 246; Karthans v. Insurance Co., 1 Pears. 104; Miller v. Insurance Co., 1 Pears. 106; Borlin v. Commonwealth, 99 Pa. 46. The only exception to this is when the insurance company has made an adjustment of the loss: Endlieh on Aff. of Def., §§ 182, 188. In Lycoming Ins. Co. v. Dickinson, 4 W. N. 271, this court sustained a judgment for want of an affidavit of defence in a suit on an insurance policy, but the decision was rested upon the peculiar phraseology of a Rule of Court in Blair county, and therefore the case is an authority in our favor. 2. Tbe affidavit filed presented a sufficient defence. In bold-ing the affidavit insufficient because it was obligatory on the company, under the act of May 11, 1881, P. L. 20, to attach the application to the policy, the court erred: (a) Because that act is in conflict with § 7, article III., of the constitution, being an attempt to prevent persons who are sui juris from making contracts of insurance in a manner to suit their own pleasure : Godcharles v. Wigeman, 118 Pa. 487; and (5) because, by its terms, the act limits its operation to policies upon property and persons within this state, and therefore it does not apply in the present case. Nor was it necessary to attach a copy of the application to the affidavit. We do not understand Erie City v. Butler, 120 Pa. 374, as deciding that every mention made of a paper in such an affidavit makes this necessary. It is necessary only where the court would be called on to judge of the legal effect of the paper referred to, in order to determine the sufficiency of the affidavit. The mention of the application in this instance was purely incidental. The affidavit would be sufficient if that word were expunged, and it alleges representations “ otherwise.” It merely indicates the sources of/ the defendant’s evidence, which it was unnecessary to recite. Nor does the affidavit allege that the application was in writing. It is immaterial whether it was or not, as the court could not judge of its legal effect until proof had been made that its contents were false. Hence it does not come within the reason of Erie City v. Butler, supra. 1. The decisions made in this case by two of the president judges of the courts of Armstrong county, familiar with their own rules of practice, should have greater weight than the decisions made in Philadelphia and Dauphin counties, so much relied on by the appellant. It has never been questioned in Armstrong county, since the decision in Lycoming Ins. Co. v. Dickinson, 4 W. N. 271, that judgment could be taken in a case of this kind for want of an affidavit of defence. Our Court Rules are similar to those upon which that case was decided. But the procedure act of May 25,1887, P. L. 271, has a wider scope than the old affidavit of defence law: Byrne y. Hayden, 124 Pa. 170. 2. The act of May 11, 1881, P. L. 20, has been passed upon over and over again by this court. Its constitutionality and beneficial character are supported by the decisions: Norristown Title Co. v. Insurance Co., 182 Pa. 391. It is a procedure act, and was intended to apply to all policies sued on within this state. Moreover, the defendant’s affidavit is clearly evasive. It states that the facts alleged were ascertained only from the proofs of loss, since the fire. But where are the proofs of loss and the application ? They are in the hands of the defendant, and why are they not produced ? When reference is made in an affidavit of defence to a paper, a copy must be annexed to enable the court to judge of its legal effect: Erie City v. Butler, 120 Pa. 874.
138 Pa. 181Wayne Township v. Porter Township (1890)
1. The settlement of a husband in a poor district is the settlement of Ms wife and their children; but, where the woman is not the man’s wife and their children are illegitimate, his settlement is not theirs. 2. As a decree upon an appeal from an order of removal does not affect any of the legal rights of the alleged wife or her children, excepting their right to support by the poor district, the validity of the alleged marriage may be determined in such a proceeding.
138 Pa. 183Miller v. Balfour (1890)
138 Pa. 184McKeever, Cook & Co. v. Canonsburg Iron Co. (1890)
APPEALS BY DEPENDANTS EEOM THE COURT OE COMMON PLEAS OE WASHINGTON COUNTY. No. 86 October Term 1888, Sup. Ct.; court below, No. 257 February Term 1886, C. P. No. 35 October Term 1890, Sup. Ct.; court below, No. 257 February Term 1886, C. P. On January 28,1886, assumpsit was brought by McKeever, Cook & Co., for use of J. Y. H. Cook, against H. S. Duncan and others, doing business as the Canonsburg Iron Company, Limited.* The defendants pleaded non-assumpsit. At the trial on March 1,1888, the beneficial plaintiff showed that on November 8,1882, the legal plaintiffs were operating a coal mine at Canonsburg, Washington county, and on that day they entered into a contract in writing with the defendants, operating an iron mill at the same place, which contract was as follows: “ Canonsburg, Pa., November 8th, 1882. “ Canonsburg Iron Co., Limited. Canonsburg, Pa. “Gentlemen: We will agree to supply you with what coal you will require for your mill, for three years time from November first, 1882, at the following prices delivered at your works, yon to build the necessary bridge, make and keep the road in good condition during this contract: Forked coal, $4.10 per 100 bushels. Run of mines, 3.30 “ “ “ Slack, 2.00 “ “ “ “ Payment to be made in cash on or before the fifth of each month for previous month’s delivery. This price is based on the three-and-a-half cent mining rate, and should same be advanced at any time during this contract, the price of coal will be correspondingly advanced; that is to say, if the mining in the Pittsburgh district should advance half a cent, our price to you will then be as follows : Forked coal, $4.85 per 100 bushels. Run of mines, 3.95 “ “ Slack, 2.00 “We will use our best efforts to give you your full requirement daily, but not to be held in damages for miners’ strikes, or other causes beyond our control. Neither will we require you to receive coal, should your works be out of operation at any time. Should coal not prove satisfactory after thirty days’ trial, this contract to be null and void. “ Accepted, ' J. V. H. Cook, “ H. S. DuNCAN, Sec. and Treas. “ Chas. H. Taylor, W. C. Magee,” “Managers Canonsburg Iron Co.” There was testimony given to show that at the date of said contract, natural gas, in sufficient quantity for fuel, had not been discovered in Washington county; that McKeever, Cook & Co. furnished a full supply of coal to defendants under the contract, until in January, 1885, when the defendants put down a gas well upon their own premises and introduced natural gas into their mill; that in May, 1885, the defendants put down a second well and obtained an additional supply of gas for their furnaces; that, although some coal was used by them, occasionally, after January, 1885, yet it was chiefly slack and nut coal; that from April 16, 1863, to the time when the contract expired, the defendants used in their mill 142,100 bushels of slack and nut coal, purchased from Shupe & Co., and that of this amount 55,650 bushels was slack. At tbe close of the testimony on both sides, tbe court, Mc-IiiVAiNE, P. J., charged the jury in part as follows : [Under this contract, Mr. Cook claims that the iron company was bound to take from the plaintiffs all the coal that was required and necessary to run the mill during the three years that the contract was in force. It being in evidence that at the time the contract was made by the parties, coal was the only fuel being used or that was then accessible and suitable to be used in this mill, we instruct you, as a matter of law, that this is a proper interpretation and construction of the terms of this contract.] 4 . . . . Now, in regard to the points that the counsel have presented, we will charge as follows: The plaintiffs ask us to charge you: 1.If the jury find from the evidence that there has been a breach of the contract on the part of the defendants, the proper measure of damages is the difference between the value of the coal which the jury may find the defendants would have required had they complied with their contract, at the contract price per bushel, and the value of that quantity of coal in place, with the cost of mining and delivery added. Answer: Affirmed. The defendants ask us to charge you as follows: 1. That the acceptance by the defendants of the offer made by the plaintiffs, to supply the iron company with what coal it would require for the mill for three years from November 8, 1882, at the prices named, did not bind the defendant company to use coal during the said term, exclusive of any other fuel. Answer. Refused.1 2. That the acceptance by the defendants of the offer made by the plaintiffs to supply the iron company with what coal it would require for its mill for three years from November 8, 1882, did not bind the defendant company to take coal in sufficient quantity to operate its said mill for three years from November 8, 1882, exclusive of any other fuel. Answer. Refused.8 3. That by the true construction of the writing dated November 8, 1882, the defendant company was not bound to take coal in sufficient quantity to operate its mill, from the plaintiffs, but was only bound to take what coal it saw fit to use in its mill at the prices named. Answer. Refused.3 —The jury returned a verdict in favor of the plaintiffs for $1,767. Judgment having been entered, the defendants took the appeal to No. 86 October Term 1888, Sup. Ct., assigning for error, inter alia : 1-3. The answers to the defendants’ points.1 to 3 4. The portion of-the charge embraced in [ ] 4 Upon the construction of the contract, counsel cited: Williamson v. McClure, 37 Pa. 402; Rowland v. Leach, 11 Pick. 151; 2 Wharton on Cont., § 674; Aspdin v. Austin, 5 Q. B. 683. ■ Counsel cited: Reaney v. Culbertson, 21 Pa. 507; Miller v. Fichthorn, 31 Pa. 252; Adams v. Betz, 1 W. 425; Miller v. Cresson, 5 W. & S. 284; Mitchell v. Insurance Co., 51 Pa. 410. That the court was not bound to answer, without qualification, abstract propositions, or propositions which met but a single view of the evidence when it admitted of another, the brief filed cited: Rider v. Maul, 70 Pa. 15; McKnight v. Ratcliff, 44 Pa. 165; Graham v. Moore, 4 S. & R. 467; Irish v. Smith, 8 S. & R. 573; Hughes v. Boyer, 9 W. 556.
138 Pa. 191Lutes v. Reed (1890)
APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY. In ejectment by the executors of a decedent, claiming under a power to sell, evidence having been adduced by the defendant, more than a scintilla, tending to show a delivery of a deed for the land to her by the decedent in his lifetime, the question of delivery was a question of fact properly submitted to the jury. No. 47 October Term 1890, Sup. Ct.; court below, No. 218 November Term 1888, C. P. On October 20, 1888, service was accepted of a summons in ejectment brought by Silas Lutes and Samuel Mancha, .executors of the will of James Stroud, deceased, against Sarah Ann Reed and her husband, John W. Reed, to recover 78 acres and 146 perches of land in East Pikerun and Fallowfield townships. Issue. At tbe trial on March 14, 1889, the plaintiffs claimed the land in dispute under the will of James Stroud, deceased, wherein was contained a power of sale. The defendants introduced evidence tending to show that Mr. Stroud died on May 25, 1886, a widower, then living upon a tract of land of which the land in dispute was a part, and owning an undivided one half interest in an adjoining farm and a large personal estate ; that his household consisted of himself, Sarah Ann Reed, who was an adopted daughter, John W. Reed, the husband of Sarah Ann Reed, and Mary Ann Worrell, a niece of Mrs. Reed; that both Mrs. Reed and Miss Worrell had been in the testator’s family from childhood; that in 1881 the testator had had his mansion farm divided into two parcels, one of which was the tract in dispute; that on December 2, 1881, he executed a deed for the land in controversy to Sarah A. Reed and for the other parcel to Miss Worrell; that on December 6,1881, he executed his will, by which, after making several bequests, he provided that “ if there is any more real estate, personal estate, or mixed, after the above legacies are paid,” it should be divided among Mrs. Reed, Miss Worrell and others; that these deeds and the will were wrapped up in a paper by themselves, indorsed, “ My will and deeds,” or “ My deeds and will,” and kept in a drawer of a bureau which the defendants claimed was used by Miss Worrell as well as by the testator; that the package remained in that place with other papers of Mr. Stroud and articles of Miss Worrell until in May, 1886, about three weeks before the date of the testator’s death, when, as was testified, Mr. Stroud directed Miss Wor-rell to get his papers, his pocket book, the deeds and some other papers; that he took the package containing the will and deeds, separated them, laid the deeds, one on top of another, and then handed them to Miss Worrell, saying, “ These are the deeds, put them away; ” that Miss Worrell took the papers, including the will, when he said, “ Put these papers away carefully ; they will be of use to you when I am gone.” There was evidence, further, that Miss Worrell saw the deeds when Mr. fjtroud wrote them; that when the deeds and other papers were handed to her three weeks before his death she put them back in the same drawer; that, when the executors came to look for Mr. Stroud’s papers after his death, the key of the drawer was in tbe possession of Mrs. Reed, who said she had got it from Miss Worrell the day Mr. Stroud died. At the close of the testimony, the plaintiffs requested the court, McIlvaine P. J., to charge the jury: 6. Under all the evidence in the case, the verdict must be for the plaintiffs. Answer: Refused.13 —The jury returned a verdict in favor of the defendants. Judgment having been entered, the plaintiffs took this appeal, assigning for error, inter alia: 15. The answer to the plaintiffs’ point.15 Upon the question of delivery, counsel cited: Thompson v. Franks, 37 Pa. 329; Boardman v. Dean, 34 Pa. 252; Critch-field v. Critchfield, 24 Pa. 100; Bryant v. Bryant, 42 N. Y. 16; Fain v. Smith, 14 Ore. 82 (58 Am. Rep. 282); Stone v. French, 37 Kas. 145 (1 Am. St. Rep. 238) ; Davis v. Cross, 14 Lea 637 (52 Am. Rep. 178); Thompson v. Lloyd, 49 Pa. 128; Pringle v. Pringle, 59 Pa. 286; Linsenbigler v. Gourley, 56 Pa. 167; Baker v. Haskell, 47 N. H. 479 (93 Am. Dec. 455) ; Prutsmau v. Baker, 30 Wis. 644 (11 Am. Rep. 598); Wyman v. Remsen, 11 Paige 564. Counsel cited: Galbraith v. Zimmerman, 100 Pa. 377; Eek-man v. Eclnnan, 55 Pa. 275; Steel v. Tuttle, 15 S. & R. 217; Dayton v. Newman, 19 Pa. 199; Allen v. Getz, 2 P. & W. 821; Arrison v. Iiarmstead, 2 Pa. 193; Wilt v. Franklin, 1 Binn. 502.
138 Pa. 194Commonwealth v. Cruikshank (1890)
One who, in the daytime, enters a store when the owner is absent and it is in charge of a boy ten years of age alone, and by falsehood, threats- and intimidation of the boy obtains money and goods from the store, may lawfully be convicted of a felony: See § 102, act of March 31, 1860, P. L. 408; § 2, act of April 22, 1863, P. L. 531.
138 Pa. 198McLaughlin v. Collins (1890)
No. 87 October Term, 1890, Sup. Ct.; court below, No. 37 March Term 1889, C. P. On January 15, 1889, James McLaughlin and twenty-five others brought ejectment against John D. Collins and Julia McLaughlin, to recover 75 acres of land in Fairview township. Issue.
138 Pa. 204Hineman v. Matthews (1890)
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLI R3 OF YENANGO COUNTY. No. 66 October Term 1890, Sup. Ct.; court below, No. 57 August Term 1888, C. P. On June 28,1888, an appeal was entered by the defendant from the judgment of a justice of the peace in favor of P. J. Hineman against David Matthews. Issue. At tbe trial on May 21, 1889, the plaintiff submitted evidence tending to show that in November, 1887, he sold to Gay-lord Minium certain timber, with a distinct agreement, as was claimed and testified, that the title to the timber was not to pass by the sale until the vendee had paid the purchase money; that Minium,- however, was allowed to cut the timber and remove it to Wilson’s mill where it was sawed into lumber; that in January, 1888, Minium having failed to pay for the timber and become insolvent, the plaintiff paid the bills for hauling and sawing, took possession of the lumber made from the timber, hauled it away from the mill, and kept possession of it as his own. Afterwards, the defendant, a constable, levied upon the lumber as the property of Minium upon a judgment and execution in favor of one William Ware, and, although notified of the plaintiff’s claim of ownership, sold it at constable’s sale to one Wilson. At the close of the plaintiff’s testimony, the court, on motion of defendant, entered a judgment of nonsuit, with leave, etc. A rule to show cause, etc., having been argued, the court, Tay-LOB, P. J., on January 6, 1890, filed the following opinion: The material question at issue was whether the transaction between the plaintiff and Minium was a sale or a bailment. Giving the testimony the most favorable construction for the plaintiff, there were no elements of a bailment in it, at least as far as creditors are concerned. It was a sale, with a reservation that no title should pass until the purchase money was all paid. The possession was unconditionally delivered, and so remained in the vendee until after the logs in controversy were sawed. Whatever may be the rule in other states, in Pennsylvania, in Welsh v. Bell, 32 Pa. 13, following other cases, it was held that “ if actual possession be given to the vendee, the vendor’s property in the goods is gone with his possession, and also his lien for the purchase money; for, retention of possession is essential to a lien on personal property.” In Haak v. Linderman, 64 Pa. 499, Justice THOMPSON says: “ No valid lien for purchase money, when the property is delivered on a contract of sale, is worth anything; ” citing numerous authorities. Of course this relates only to creditors. The rule to take off the nonsuit is discharged. —Thereupon the plaintiff took this appeal, specifying that the court erred in entering the judgment of nonsuit, and in discharging the rule to show cause why the same should not be taken off.
138 Pa. 208Estate of Ferguson (1890)
[To be reported.] 1. Bequests, subordinate to a life-estate in the testator’s widow, or payment of which is postponed by the will until her death, become presently payable upon her election to take under the intestate laws; ás to its effect upon all claims under the will, such election is equivalent to the widow’s death, unless the will manifests a contrary intent. 2. While equity will depart from the literal provisions of a will, in order to carry out a superior or preferred intent of the testator which would otherwise fail, such departure is never made except of necessity, and then only to the extent that the necessity requires: Young’s App., 108 Pa. 17, considered and explained. (a) After bequeathing his household furniture to his wife and devising to her certain realty for life, a testator directed that his other personal property, and certain other realty, be sold and the proceeds thereof invested, and that the income therefrom and the interest on all moneys, notes, etc., outstanding, should be received by his wife during her life. (&) Ho. then directed that at his wife’s death all his property should be sold; bequeathed, out of the proceeds of such sale, $500 each to four persons by name, and gave the residue of his personal and real estate to his brothers and sisters. By a codicil he bequeathed to an adopted son five per cent of the personal and real estate remaining at the widow’s death: 3. The widow having elected to take under the intestal e laws, her election, being equivalent to her death, obliterated any distinction between the proceeds of the different sales provided for in the will; and the definite legacies became presently payable out of the proceeds of the personal estate of the testator sold by the executor in her lifetime. 4. The fact that the widow’s election disarranged the testator’s scheme and disappointed the residuary legatees, presented no reason for throwing the definite legacies upon the fund to arise from the realty at the termination of the widow’s life-estate therein under the intestate laws, thus departing from the ordinary rule that definite legatees are to be paid before residuary legatees. 5. Wherefore, upon distribution of the personal estate, which amounted to $2,823.66, the widow was entitled to take the one half thereof as if the testator had died intestate, and the remainder was divisible pro rata among the particular legacies, including said legacy of five per cent, which was to bo calculated as five per cent of the entire net fund for distribution.
138 Pa. 222Haworth v. Truby (1890)
No. 51 October Term 1890, Snp. Ct.; court below, No. 389 June Term 1888, C. P. On April 30, 1888, an appeal was entered by the defendant from the judgment of a justice of the peace in favor of Haworth & Dewhurst, Limited, against John Truby. Issue.
138 Pa. 230Thompson v. Christie (1890)
APPEAL BY DEPENDANTS PROM THE COURT OP COMMON PLEAS OP BUTLER COUNTY. No. 142 October Term 1890, Sup. Ct.; court below, No. 11 March Term 1890, C. P. On December 4, 1889, W. C. Thompson brought ejectment against C. G. Christie, H. W. Christie and T. G. Christie, for forty acres of land in Connoquenessing township. Under a Rule of Court providing for the filing of an abstract of title by the plaintiff in ejectment, a like abstract by the defendant, a replication by the plaintiff denying or admitting the latter, and issue under the plea of not guilty, to be entered by the prothonotary, the plaintiff filed an abstract exhibiting title in Hugh McClelland to the land in question, under a deed dated March 27, 1867, and an oil-lease thereof, for the term of fifteen years, from Hugh McClelland to the plaintiff, dated May 16, 1889, recorded May 21,1889. The defendants’ abstract, filed January 6,1890, admitted the title of Hugh McClelland, but called for proof of the lease to the plaintiff and denied that he acquired any title thereby; and, as afterwards amended, it set up the following chain of title in the defendants: Oil- and gas-lease, for the term of fifteen years, from Hugh McClelland to C. L. Jones and others, dated March 6,1888, recorded May 28,1889; assignments vesting the ownership of said lease in A. Griesbach, O. W. Shoup, Philip Shoup, J. P. Ripper and L. Ripper; agreement between said owners and H. W. Christie, dated September 24, 1889, for the assignment of said lease to said Christie; and an assignment from said owner to H. W. Christie dated December 5, 1889, recorded January 6, 1890. The abstract also averred that the plaintiff was not a bona fide purchaser for value of the lease set up by him, but took the same with notice, through his partner and agent, of the prior lease under which the defendants claimed; that he paid nothing for his lease, never took possession and never expended any money in developing on the faith of it; that the lessees in the Jones lease, or those claiming under them, took possession in October or November, 1889, commenced drilling a well about November 6, 1889, and finished it about December 25, 1889, at an expense of over $8,000. Along with their abstract, the defendants filed a plea of not guilty. On January 18,1890, the plaintiff filed a counter specification, denying all the matters set up in the defendants’ abstract, and averring that the Jones lease was obtained from McClelland by means of fraud and misrepresentation, was executed by the lessor on the faith of a contemporaneous parol agreement, and that it was null and void long before the defendants obtained any title thereto; that the defendants did not purchase the same in good faith, but took it with full knowledge of all the facts, and were notified of the plaintiff’s lease before they took possession or invested a dollar in the property. At the trial on April 12, 1890, the plaintiff, in his case in chief, put in evidence the lease from McClelland to himself, and the sheriff’s return showing service of the writ of ejectment upon the defendants, and then rested. The defendants, in their case in chief, first put in evidence the lease from McClelland to Jones and others of March 6, 1888, and the assignments thereof vesting title in Griesbach and others. Said lease was for the term of fifteen years, and so long thereafter as oil or gas could be produced in paying quantities, and contained the following stipulations: “ The party of the second part agrees to drill a test-well in the township of Connoquenessing, or within two miles of the above described premises, within one year from the date hereof ; and if oil or gas is found in paying quantities in said test-well, the party of the second part agrees to complete one well on the above described premises within one year from the completion of said test-well, or, in lieu thereof, thereafter to pay to the said party of the first part forty dollars per annum until work is commenced. “ And it is further agreed, that the second party, his heirs or assigns, shall have the right at any time to surrender up this lease, and be released from all moneys due and conditions unfulfilled; then and from that time this lease shall be null and void and no longer binding on either party, and the payments which shall have been made shall be held by the party of the first part as the full stipulated damages for the non-fulfilment of the foregoing contract.” The defendants then offered an article of agreement, dated September 24,1889, between Griesbach and others, of the one part, and H. W. Christie of the other part, for the sale of said lease to Christie, in consideration of §200 in hand paid, and a further consideration, contingent upon the result of a well upon the property of one Shannon, viz., $300 if said well should produce ten barrels per day, or $600 if it should produce twenty-five barrels per day. The agreement further provided that Christie should take the lease “ subject to a lawsuit now pending,” and “ subject to all claim that any one may have against the said lease.” A certificate of an acknowledgment by all the parties before J. A. Ripper, justice of the peace, bearing date September 24, 1889, was appended to the agreement. The date of the acknowledgment appeared to have been written over erasures. The offer being objected to until the •erasures appearing upon the paper were explained, the defendants called J. A. Ripper, who testified in substance that the agreement was signed and acknowledged before the witness by all of the parties to it, except Griesbach, on September 24,1889, but the witness did not at that time fill up the certificate of acknowledgment; that Griesbach refused to sign it until he received all the money coming to him under it, but that he did sign and acknowledge it on December 5, 1889, when the witness filled up and signed the certificate of acknowledgment, •dating it on that day, but after so doing the witness erased that date and substituted September 24th, entirely of his own motion, in view of the fact that all the parties except one had signed and acknowledged the paper on the day of its date; and that from September 24th to December 5th the paper remained in the possession of either the witness or one of the assignors. The defendants then renewed the offer of the agreement. The offer was objected to for the reason, in substance, that the agreement was not executed and delivered and did not go into effect until December 5, 1889, after the bringing of this suit, and that, as appeared in the body of the instrument, Christie had notice of the plaintiff’s claim. By the court: Objection sustained. The defendants then offered the same paper as an agreement between the vendors therein named, other than Griesbach, of the one part, and Christie of the other part; to be followed by proof of payment of the consideration; possession of the property taken in pursuance thereof and valuable developments and improvements thereunder by the defendants; to be followed with the further proof that the remaining party named therein agreed to the terms of sale, accepted his portion, of the purchase money, and possession of his interest taken by defendants thereunder, all prior to the time suit was brought, and his subsequent approval- of the agreement by adding his name thereto. 'Phis for the purpose of showing title in the defendants. Objected to. By the court: Objection sustained; exception.1 The defendants then offered in evidence a formal assignment of the Jones lease from Griesbach and others to H. W. Christie, dated and acknowledged December 5,1889, and recorded January 6, 1890; to be followed by proof of possession of the property by the defendants several months prior to the date of the assignment, and the expenditure by them of large sums of money, to wit, about $8,000, in developing and improving the property, and payment of the consideration of said assignment, or a portion thereof, prior to suit brought. Objected to, in substance, because the assignment was dated after suit brought; that no expenditure or development, prior to its date, could have been under or in pursuance of it, and that the defendants’ brief of title did not allege any parol agreement. By the court: Objection sustained; exception.8 The defendants showed, further, that the plaintiff paid nothing for the lease made to him by McClelland, and that said lease was procured and written by the plaintiff’s father, John M. Thompson, who had notice of the Jones lease at the time. The defendants having closed their case in chief, the plaintiff, in rebuttal, called Hugh McClelland, the lessor, who testified to a conversation between himself and C. L. Jones at the time when the lease to Jones was signed, as follows: “ When he presented the lease to me, I says, ‘ I want it distinctly understood, I don’t claim to understand all the hooks and turns of the law, but for one year I will sign it.’ He says, ‘Most assuredly it is only for one year; I don’t ask you for any more.’ Then there was to be a test-well inside of that year from the 6th of March, or he would pay $40 or deliver up the lease.” Cross-examined: “ Q. You knew you were signing a lease that made a lease for fifteen years, didn’t you ? A. Yes sir ; providing — Q. And yon say that he told yon before yon signed that lease that he would drill a well within a year or pay you $40? A. Yes, sir. Q. A dollar an acre for not drilling? A. Yes, sir. Q. At the end of the year? A. Yes, sir. Q. That was the extent of his promise, and induced you to make the lease? A. Yes, sir. Q. You knew you were signing a lease for fifteen years, but he told you he would operate within a year; if not, he would pay you $40 for neglecting so to do, for refusing so to do ? A. Yes, sir. Q. That is the extent of his representations ? A. Yes, sir.Q. Then, as I understand, the reason you signed this lease was that he said before you signed it that he would put down a well in Connoqueness-ing township within a year, and if not he would pay you $40 ? A. Yes, sir. Q. And because that well was not put down in Connoquenessing township, and because that $40 was not paid at the end of the year, you contend that he only had the lease for one year and he had no right to assign to Christie ? A. Yes, sir. Q. Now that is your whole contract, is it? A. Yes, sir.” Re-direct: “ Q. You said to Mr. Marshall, as I understood you, that he said he would drill a well within a year or pay your money within a year, and then Mr. Marshall asked you if that was all he said; what, if anything, did he say and did you say that he said ? A. He said he would deliver up the lease. Q. If he didn’t do either? A. Yes. He further said 'that that lease would never go out of his hands. If that well wasn’t drilled, or that money wasn’t paid, he wasn’t going to give that lease out of his hands. Q. But would hand it hack to you ? A. Yes, sir.” The witness testified, further, that the test-well referred to in the agreement with Jones was not drilled within the year, and the $40 for delay was not paid to the witness, nor was it ever offered to him by any one, until August, 1889, when Mr. Christie was notified by the witness that the lease was forfeited. by the non-payment of the money, whereupon Christie offered to pay it but the witness refused to accept the offer. The defendants’ counsel proposed to cross-examine the witness as to whether he did not go to John M. Thompson’s office on the day when the lease to the plaintiff was made, not for the purpose of making a lease, but to obtain advice as to how he could avoid the prior lease made to Jones and others. Objected to, as not cross-examinatino. By the court: Objection sustained; exception.4 The wife, two daughters and a son of Hugh McClelland, being called by the plaintiff, all testified, in substance, that at the time the Jones lease was signed Jones agreed either to drill a well in the township or to pay $40 within a year, and, if he failed to do either, to give up the lease; and that the witnesses were consulted by Hugh McClelland, in Jones’s presence, as to whether he should accept those terms, before signing the lease; also that Jones agreed to hold the lease himself and not to transfer it to any one else during the year. The plaintiff testified that he had no knowledge of the existence of the Jones lease at the time he signed the lease from McClelland to himself; that the witness was not present when the latter lease was written, never negotiated with McClelland about it and had no knowledge of it, until informed by his father, and partner, John M. Thompson, that McClelland had made such a lease and had left it in the hands of the notary public who had taken his acknowledgment; and the witness, after looking at it in the office of the notary, accepted and signed the lease. The defendants, in sur-rebuttal, made the following offer: Defendants’ counsel now propose to prove by Hugh Mc-Clelland and others, that on May 16, 1889, he visited the office of Thompson & Son, John M. Thompson and William C. Thompson, father and son being partners in business, for the purpose of consulting them as to how he could avoid and annul a lease made to C. L. Jones and others of the date of March 6, 1888, for the land now in controversy, and, after consulting with Mr. John M. Thompson, the father of William C. Thompson, the son William C. Thompson not being present, Mr. Thompson told Mr. McClelland he could either file a bill to cancel the lease or else lease to some person without knowledge of the old lease and thereby avoid the lease in law; that, in pursuance of this advice or suggestion of John M. Thompson, the lease to William C. Thompson was executed and left with John M. Thompson; that no consideration was paid for the lease; that the lessor, Hugh McClelland, and the nominal lessee, William C. Thompson, had no conversation in regard to the lease or its terms. Further, that Hugh Me-Clelland, the lessor to Wm. C. Thompson, brought Ms action of ejectment at No. 10 March term 1890, this action being No. 11 March term 1890, against the same defendants as in this action for the same land. This being offered, in connection with the evidence already given to the court and jury, to show that the lease of May 16, 1889, of Hugh McClelland to Wm. C. Thompson was merely a device to avoid or defeat the lease of said Hugh McClelland to Jones and others of March 6,1888; that the use of the name of William C. Thompson was only a contrivance to obtain the name of a party plaintiff who had no personal knowledge of the lease of March 6, 1888, and it was not a lease in good faith to convey a title in the way of general business. Objected to by plaintiff’s counsel. By the court: It would seem to me that under the rules this offer, if it is covered by your abstract, would have very considerable force, but it would be getting outside of the pleadings to admit it; the objection is therefore sustained; exception.10' The defendants made another offer, substantially to the same effect as the offer made in their case in chief,3 which upon objection was overruled; exception.9 They also offered to show by Griesbach that, while he was interested in the Jones lease, and within a year after its date, he offered to pay McClelland $40 as rental, not on the basis of his being entitled to receive it, but in view of the fact that some of his neighbors had been receiving rentals. Objected to. By the court: In your offer do you use the words, offered the money, as a legal tender. Mr. Brandon: Not as a legal tender, but as an offer to pay. By the court: The objection is sustained; exception.8 The defendants put in evidence the deposition of C. L. Jones who testified that there was no agreement between him and McClelland, in reference to the lease between them, that the witness remembered, except what was embodied in the written lease, and that the witness did not agree to pay rental within one year. At the close of the testimony the court, HazEN, P. J., charged the jury in part as follows: Tbe defendants, tbougb they may fail in their own paper title, may defend the action by showing an outstanding title in others; and, haying, in this case, failed to connect their ownership by paper title, they were remanded to the point, given them under the law, to defend by showing good title outstanding in another person or persons, and this is the title set up and under which they defend. It brings the matter then to this question: The plaintiff, after having introduced his paper title, the praecipe and writ and acceptance, the admission of the parties that there was good title in Hugh McClelland, rested. After hearing defendants as to their title, he sets up this defence in rebuttal, which it was claimed and not disputed was in their abstract and gave them the right to offer the proof, that at the time the lease of March 6,1888, was executed, it was at the dwelling of Hugh McClelland; that, at the execution of this lease, C. L. Jones, who was acting for himself and the others named in the lease as grantees, McClelland, and the members of McClelland’s family, there was a parol agreement, additional to what was expressed in writing in the lease, covering that which probably ought to have been embraced in the lease in writing, to the effect that a well was to bo put down within one year within a given territory named, or the payment of money named, or the surrender of the lease. If this be true, it must be established to the satisfaction of the jury that they may find the fact, by clear and indubitable proof, and the burden of that is thrown upon the plaintiff. He must establish this fact in the way provided by the law, and by such clear and indubitable proof, as stated, that the jury will be able to say that that was a part of the agreement at that time and without which the signature of McClelland would not have been appended to the agreement. If this fact be so clearly established that you may determine from the proofs that such was the case, and without this agreement in parol, at the time, McClelland would not have executed that lease, then that becomes a part of this lease: and having so found that fact, then we think, gentlemen, you have reached the main point in the controversy now before you. If you find that to be a part of the contract, at the time it was made on March 6, 1888, then we are of opinion that the defendants have not set up a good title outstanding in another person, mucb less good title in themselves. Having found or reached that conclusion, your duty then would be brief, and consist only in returning a verdict for the plaintiff for the land described in the writ with six cents damages. On the other hand, if you reach the conclusion that this parol part of the agreement, claimed to have been made at the time and upon the strength and credit of which the signature of Hugh Mc-Clelland was obtained and he executed that paper of March 6, 1888, that that was not a part of the agreement, but that the paper as it is in writing shows the whole agreement then made, then we think your duty is equally short, and would consist only in returning a verdict in favor of defendants. After hearing this case, gentlemen, this is the conclusion which we hold in regard to the main question before you, and it turns upon that point and upon that solely. Defendants’ counsel have asked the court to instruct you upon certain points submitted: 1. The plaintiff in this case, W. C. Thompson, is not a holder of the lease upon which he brings suit, for value, without notice of the prior lease to Jones and others, and his record gives him no priority over the Jones lease. Answer: This is refused.11 2. The presumption is that when McClelland made the lease to Jones and others the whole contract of the parties was reduced to writing and put in the lease. The burden is upon plaintiff to convince the jury that any part of it was omitted, and that McClelland would not have signed it if it had not been for the parol promise. The evidence to show this must be clear, direct, convincing and indubitable. Answer: We will divide this second point into two parts, and what we have just read we will call the first part; what follows, the 2d part: The court must be convinced that the witnesses who testify to the parol contract or promise are worthy of belief; that they distinctly remember the facts and truly state them. The evidence in this case is not clear, direct, convincing and .indubitable, and the court, sitting in the case as chancellor, should so instruct the jury and direct a verdict for defendants. Answer: The first part of this point is affirmed; the latter part is refused. As a whole, the point is refused.18 3. The evidence upon the part of plaintiff, if it shows any promise upon the part of Jones not incorporated in his lease, shows only a promise to pay a rental of forty dollars per year, in one year after the execution of the lease, instead of two years as written therein, or in default of said payment that Jones would surrender the lease. This clause of surrender was not a forfeiture which can only be taken advantage of by the lessor, but was a privilege of the lessee to avoid the payment of rentals; and if the lessee did not avail himself of that privilege, an action would lie against him, but no forfeiture would accrue. The agreement to pay rentals cannot be enforced in an action of ejectment and the verdict must be for defendants. Answer: This is refused.13 4. The evidence introduced by the plaintiff in this case to reform, or cancel, or annul the Jones lease, is in the nature of an application to the court sitting as a court of equity to reform, cancel, or annul the Jones lease, by introducing into it by parol a clause of forfeiture, and then to immediately enforce that forfeiture for the non-payment of a small sum of money. The application is governed by equitable principles. Courts of equity do not enforce forfeitures in general, and especially for non-payment of money; and in this case the forfeiture is not demanded by any equity. The verdict then must be for defendants, and McClelland be remitted to his action at law to recover the rental. Answer: As a whole this is refused.14 5. The reformation of a contract in writing relating to real estate by parol testimony, is permitted only to prevent a fraud. The evidence shows that McCelland has made a lease to Thompson, since the Jones lease, upon terms less favorable to him than the Jones lease, and he will not be benefited by changing the terms of his lease. He has therefore no equities to enforce. And the evidence also shows that possession of the lease was never given to Thompson and that he never paid value for it, and he will therefore lose nothing if the paper is not reformed. This suit is brought by Thompson who has acquired no independent rights. Nothing was transferred to him but the mere right to attack the Jones lease for fraud, and that right was. not assignable in equity. The verdict in this ease, Thompson alone being plaintiff, must be for defendants. Answer: This is refused.15 6. If the jury believe that Jones obtained his lease by fraud, or that he made a parol promise upon the strength of which the lease to him was executed, but also find that any interests were afterwards sold to others for a valuable consideration paid without notice of the fraud or parol agreement, to the extent of those interests the verdict must be for defendants. Answer: This is refused.16 _ ' . 7. Under all the facts in this case, the verdict must be for defendants. Answer : This is refused.17 —The jury returned a verdict for the plaintiff for the land described in the writ, with six cents damages. Judgment having been entered, the defendants took this appeal, assigning for error: I-4. The refusal of the defendants’ offers.1 to 4 8-10. The refusal of the defendants’ offers.8 to 10 II-17. The answers to defendants’ points.11 to 17 1. The contract dated September 24,1889, was admissible, at least so far as the parties who signed it prior to the conu mencement of the suit were concerned. Formal delivery of it was unnecessary. Execution and acknowledgment by the vendors, and possession and improvement by the vendee, fully take the place of delivery. But if formal delivery was essential, the paper should have been admitted and the question of delivery left to the jury: Galbraith v. Zimmerman, 100 Pa. 374. A defendant in ejectment may defeat the action by showing a title in himself at the time of trial: Galbraith v. Elder, 8 W. 101. And even a plaintiff’s title acquired after suit brought is admissible, when the conveyance of the legal title to him was made merely to complete an equitable title acquired before suit, accompanied by possession and improvements: Rockland Coal Co. v. McCalmont, 72 Pa. 221. But all these questions did not concern the plaintiff. He cannot object to the proof of a parol title to the Jones lease, under which the defendants were in possession and made improvements : Christy v. Brien, 14 Pa. 248; Rockland Coal Co. v. McCalmont, 72 Pa. 221; Moody v. Fulmer, 3 Gr. 1J. His objections to our offers were collateral to any questions involved in the case. The similar offer to show title, possession, improvements and expenditure of money, when made in rebuttal in answer to the equities set up by the plaintiff against the Jones lease, should have been received, as it was not shown that the defendants had notice of the facts upon which the attempt to reform that lease was based. 2. The question whether the plaintiff’s lease, as the one first recorded, had priority, was the sole question at the close of the defendants’ case in chief. In the plaintiff’s rebutting case, he opened up a new attack upon the defendants by calling Mc-Clelland and others to show a parol agreement upon the faith of which the Jones lease was signed, and the breach of that agreement. Our offers to show, on the cross-examination of McClelland, and afterwards in sur-rebuttal, that the lease to the plaintiff was made for the purpose of preventing the holders of the Jones lease from defending against the charge of fraud, should have been received. Such a purpose was dishonest. The proof of it by cross-examination was admissible, because it bore upon the trustworthiness of McClelland’s testimony : Fulton v. Bank, 92 Pa. 112; Curry v. Curry, 114 Pa. 367. But it was admissible for another purpose. The plaintiff’s attempt to reform the lease was an appeal to the equity powers of the court: Nicolls v. McDonald, 101 Pa. 514; Rowand v. Finney, 96 Pa. 192; and a chancellor will not grant relief when the plaintiff’s hands are not clean: Reno v. Moss, 120 Pa. 49; Gill v. Henry, 95 Pa. 388; Kunkle’s App., 107 Pa. 368; Delp’s App., 109 Pa. 277; Stafford v. Wheeler, 93 Pa. 462: Lynch’s App., 97 Pa. 349; Scranton Electric Co.’s App., 122 Pa. 154; Weaver v. Craighead, 104 Pa. 288. As the proof of such dishonest purpose was in rebuttal of new matter, first alleged in the plaintiff’s counter abstract, and first shown upon the trial, in his rebutting case, it was unnecessary, under the Rule of the Court below, to give notice of it in our abstract. 3. It is objected that McClelland’s motive could not affect the plaintiff unless he had notice of it. We say that he had. notice. Tbe lease to him was written by bis father and law partner, who advised the making of it for the purpose referred to, giving^hat advice as a member of the law firm. Under the circumstances of the case, the plaintiff could not take the benefit of the lease without being visited with notice of all that his partner knew: Wade on Notice, § 691. But it is immaterial whether he had knowledge of .the fraudulent purpose in making the lease or not. He paid nothing for it, expended nothing on the faith of it, and stands in no better position than his lessor : Beck v. Uhrich, 13 Pa. 636; Union Canal Co. v. Young, 1 Wh. 410; Griffiths v. Sears, 112 Pa. 523; Forest Oil Co.’s App., 118 Pa. 188. The fraud which is alleged by McClelland as the ground for admitting evidence of a parol promise, made at the execution of the Jones lease, is not in the lease itself, but in the breach of the contemporaneous promise : Lippincofct v. Whitman, 83 Pa. 244. If, then, an offer to perform it within the stipulated time be shown, there is no ground for the reformation, and it is inequitable to enforce a forfeiture: West-moreland N. Gas Co. v. DeWitt, 130 Pa. 235. The court refused to permit us to show that Griesbach offered to pay the lessor rental, because we did not propose to show a legal tender. This was extending the effect of a legal tender, so as to make the want of it a ground for permitting McClelland to refuse to receive the rental to be paid under the parol promise, and then to forfeit the lease because it was not paid. 4. The appeal for reformation and forfeiture being to the court sitting in equity, the duties of the judge were those of a chancellor and the verdict was merely advisory. Whether there was sufficient satisfactory evidence to justify a decree, was a preliminary question for the court. We contend that the evidence here was not of such a character as to' justify the change of a written instrument for the conveyance of land. It was essential for the plaintiff to show that McClelland signed the lease on the faith of a parol promise of forfeiture. The testimony of the understanding of others cannot help the matter, if McClelland himself did not understand that a forfeiture was to follow a breach of the parol agreement, for it was not upon the faith of what they understood that he signed the paper. Comparing his testimony upon cross-examination with his testimony in chief, it is not clear that he understood the lease was to be returned if rental was not paid. But a parol agreement to return a lease is not a cause of forfeiture which can be enforced in this action. The agreement to return was a privilege the lessee had, to dissolve the relation <jf landlord and tenant. And an agreement to pay rental unless the lease is surrendered, cannot be forced by ejectment: Krebs v. Stroub, 116 Pa. 405. 5. Admitting, however, that the parol promise contains a clause of forfeiture and has been made out clearly, a court of equity will not reform the lease, and in the same breath and in the same proceeding forfeit it in favor of a volunteer, simply because a small sum of money, offered to McClelland by Christie before the bringing of the suit, was not paid before March 6, 1889. Courts of equity never lend their assistance in the enforcement of a forfeiture, but leave the party to his legal remedies: Oil Creek 11. Co. V. Railroad Co., 57 Pa. 72. Forfeitures, if no longer odious, are at least not favored, especially when founded on mere delay in the payment of money: West-moreland N. Gas Co. v. DeWitt, 180 Pa. 235. In any event, McClelland has no equity to reform the lease, for any recovery by him Avould be in the interest of the plaintiff; and the plaintiff has no equity, because he never had possession of the land, paid nothing for his lease and can lose nothing if he is defeated in this action. The lease made to him by McClelland was in effect merely an assignment of the right to attack the Jones lease for fraud, in a court of equity, so as to have it reformed and forfeited. This mere right is not assignable: 2 Story Eq. J., § 1040 h. and note 5; note to Marshall v. Means, 12 Ga. 61 (56 Am. Dec. 444). 1. The papers and testimony, offered to show title in the defendants, were properly rejected. If the plaintiff’s lease was not good, he could not recover, no matter whether the defendants had or had not title. If the Jones lease had ended by its own conditions, the testimony could not help the defendants nor hurt the plaintiff. The expenditures by the defendants, which it was proposed to show, were admittedly all made after notice that the lease was in dispute. McClelland’s motive in making the lease to the plaintiff, whether to avoid the former lease without the cost of a suit, or to secure the development of his farm, or both, were matters in which the defendants had no interest, and by which the plaintiff’s title could not be affected. Griesbach’s willingness to pay rental was immaterial. It might be evidence that the lessees knew they were bound to pay within the year or forfeit the lease. Its rejection did the defendants no harm. . 2. The real inquiry in the case was one for the jury, viz.: What were the terms and conditions of the Jones lease ? It was a matter of indifference what title Christie had to it, if it was ended by forfeiture. That the agreement for its forfeiture was made, and that the lease was signed on the faith of it, has been established by the testimony of five witnesses, practically uncontradicted, and by the verdict of the jury. Under well-settled principles, that agreement became a part of the lease, with the same force and effect as though written therein, and failure to perform the conditions specified avoided the lease. A clause of forfeiture is necessary for the landowner’s protection in such contracts. In such cases, forfeitures are not odious, but will be encouraged and enforced: Brown v. Yandergrift, 80 Pa. 142; Christie’s App., 85 Pa. 468; Stoughton’s App., 88 Pa. 198; Wills v. Gas Co., 130 Pa. 222; McKnight v. Kreutz, 51 Pa. 287; Kreutz v. McKnight, 53 Pa. 319; Spencer v. Darlington, 74 Pa. 294; Becker v. Werner, 98 Pa. 555; Paschall v. Passmore, 15 Pa. 303; Newman v. Rutter, 8 W. 54; Wilson v. Guthrie, 2 Gr. Ill; Napier v. Darlington, 70 Pa. 64; Kerr v. Day, 14 Pa. 112; Columbia Coal Co. v. Miller, 78, Pa. 246. .. 3. The continued possession of McClelland, after the breach of the conditions of the lease, was equivalent to a re-entry for condition broken. His making another lease to the plaintiff, which was put on record, and his notice to the defendants that the first lease was dead, were an unequivocal declaration of a forfeiture. The forfeiture therefore took effect: Hamilton v. Elliott, 5 S. & R. 385; Clark v. Trindle, 52 Pa. 495 ; Wills v. Gas Co., 130 Pa. 222; McKissick v. Pickle, 16 Pa. 149; Ken-rick v. Smick, 7 W. & S. 41; Davis v. Moss, 38 Pa. 346; Sheaf-fer v. Sheaffer, 37 Pa. 525. The parol evidence offered to show tbe agreement for a forfeiture was admissible for tbat purpose: Greeuawalt v. Kohne, 85 Pa. 875; Christ v. Diffenbach, 1 S. & R. 464; Miller v. Henderson, 10 S. & R. 290; Lingenfeltor v. Ritchey, 58 Pa. 488; Bown v. Morange, 108 Pa. 75; Wolfe v. Arrott, 109 Pa. 475 ; Chalfant v. Williams, 35 Pa. 215; Bank v. Fordyce, 9 Pa. 277 ; Thudium v. Yost, 20 W. N. 217 ; Cull-mans v. Lindsay, 114 Pa. 167; Phillips v. Meily, 106 Pa. 536; Gump’s App., 65 Pa. 478; Shughart v. Moore, 78 Pa. 469; Parke v. Chadwick, 8 W. & S. 98; Renshaw v. Gans, 7 Pa. 117; Hoopes v. Beale, 90 Pa. 83; Lyon v. Bank, 14 S. & R. 286.
138 Pa. 250Saltsburg Gas Co. v. Bor. of Saltsburg (1890)
APPEAL BY DEPENDANT EROM THE COURT OE COMMON PLEAS OE INDIANA COUNTY. No. 152 October Term 1890, Sup. Ct.; court below, No. 240 June Term 1890, C. P. in Equity. On April 14,1890, the Saltsburg Gas Company, incorporated for the transportation and supply of natural gas, filed a bill in equity against the burgess and town council of the borough of Saltsburg and its employees, praying upon the facts therein averred: 1. That the defendant be restrained and enjoined from using, burning, or consuming the gas of the plaintiff in open street lights, or from authorizing or permitting the same to be so used, burned, or consumed. 2. That the defendants be further restrained and enjoined from interfering with the plaintiff in the exercise of its legal and corporate rights over its property and gas, within the limits of the borough of Saltsburg, and from interfering with or preventing said plaintiff from severing the connections between its main gas pipe, in said borough of Saltsburg, and said open street lights. 3. For general relief. On the filing of the bill with a bond approved, a preliminary injunction was ordered requiring the defendant “to abstain from using and consuming the natural gas from the plaintiff’s well or wells in open street lights, in the streets or alleys of the borough of Saltsburg, or any place else, until the further order of this court; ” the injunction to be dissolved, unless on further hearing it should be otherwise ordered.1 On April 18, 1890, a motion was made that the injunction be continued, and a day fixed for hearing. Subsequently, an answer was filed by the defendant; and, on argument upon the pleadings and affidavits presented, disclosing the facts sufficiently appearing infra, the court, White, P. J., on April 30, 1890, filed the following opinion and decree : This is a case, probably, in which we might now make a final decree, as the facts, material to the precise question presented, do not appear to be in dispute. McCallum v. Water Co., 54 Pa. 40, is authority for a final decision at any stage of a bill, when there is no actual dispute of law or of fact. We shall forbear, however, final decree now, in abundant caution, and with the hope of early efforts of the parties for practical and mutually satisfactory adjustment. A brief statement of undisputed facts developed, will make moré apparent the reason for our present judgment. The town council of the defendant borough, on March 12, 1888, by formal ordinance gave to the plaintiff gas company the privilege of digging and putting in the streets and alleys of the borough pipes or mains for conveying and distributing natural gas to consumers. Regulations were detailed in the ordinance about the laying of the necessary pipes and devices. Section 5 provided: “ That, in consideration of the privileges herein granted, the Saltsburg Gas Company, its successors or assigns, shall furnish gas,'free of charge, for all street lamps, and for the council chamber, town hall, and all town police purposes, and continue such supply as long as said company, its successors or assigns, shall exercise the rights granted under this ordinance.” The requirements of this ordinance were accepted by the plaintiff company, and it accordingly put its pipe through the streets to supply customers. The ordinance and its acceptance became the contract of the parties. It does not appear clearly how many street lamps or how manjr lights were supplied in the streets, alleys, council chamber, town hall and for police purposes, until the 28th of March, 1889. Prior to this date, various differences and disagreements arose between the company and the borough authorities about the kind of street lights the borough could use for which the company was to supply the gas. That there was a difference between the parties about the kinds of lights, is perfectly clear; the company contending that it was to supply without charge gas only for what the ordinance designated as street lamps, while the borough claimed that the company was to supply the gas for such street lights as were erected, regardless of their being street lamps or otherwise. To settle these differences, on March 28,1889, the company submitted the following proposition, which appears as exhibit B in plaintiff’s bill: “ Rescinding all previous propositions to furnish gas to light the streets of Saltsburg, whether verbal or written, excepting that found in the ordinance passed by council March 12, A. D. 1888, and accepted by the Saltsburg Gas Company, we now make the further proposition, namely, that, subject to our rules and regulations, we will furnish gas for open lights on the streets of Saltsburg for thirty-six dollars per annum, payable quarterly in advance, conditional that the number of lights under this proposition shall not exceed twentjq and the price per quarter shall not depend upon the number of lights, but shall be nine dollars per quarter, whether one or twenty lights are burned. “ This contract may be terminated at the end of any quarter by either party, gas company or council, upon giving ninety days notice to the other party.” On April 1, 1889, this proposition was accepted by the borough, by formal resolution or motion of the council. Thereafter, in this respect, this written proposition of the company became the contract of the parties. It appears that in pursuance of its terms, nineteen open street lights were thereafter put up and burned along the streets, and paid for until the filing of this bill. This contract is plain, and speaks for itself. It had the merit of mutuality. It could be terminated by either party. The notice of the company, of January, 1890, the plaintiff’s exhibit C, terminated this contract on the 1st of April, this month. The plaintiff company now claims to stop the burning of its gas in open lights, hereafter, because of their alleged exhaustive consumption, and the necessity for economizing the supply; ‘and that for that purpose it can dig to its pipes in the streets and sever the connection between its mains and the open street lights. The defendant borough denies the plaintiff’s claim, and now contends that by the fifth section of its ordinance of March 12, 1888, it is entitled to a supply of gas for either street lamps or open lights, as it may choose to erect, and that there is really and practically no difference between street lamps and open lights. Right here, then, is the material question. If the plaintiff’s right is doubtful, the preliminary injunction will be dissolved. “ A preliminary injunction is never awarded except when the right, in equity, of the plaintiff is clear, at least supposing the facts of which he gives prima facie evidence to be ultimately-established : ” Audenried v. Railroad Co., 68 Pa. 370; Brown’s App., 62 Pa. 17; Waring v. Cram, 1 Pars. 526. The office of a preliminary injunction is not to take property out of possession of one party and put it into the possession of the other, but to preserve the statu quo until the controversy can be finally adjudicated. We have said, if the plaintiff’s complaint appears doubtful, the preliminary writ will be refused. We have doubt of the plaintiff’s right, in view of the borough ordinance in that behalf, to dig up the pipe to enforce their contention. This we will not give the company authority, now, to do. But does it appear doubtful, on the bill and affidavits of both sides, that there is substantial difference between street lamps and open street lights ? Here is the test of the controversy. If, from the reading of the fifth section of the ordinance of1 March 12, 1888, a reasonable doubt arose, the parties themselves resolved it by their contract of March 28, 1889. The company insisting, then, there, was a material difference, it admitted its liability to supply free gas for street lamps, but claimed money compensation for the open lights. The borough recognized and acceded to this demand. It is difficult for us to dismiss a distinction the parties themselves recognized. But, it is said this latter contract is ended and the parties are remitted, to the ordinance of March 12, 1888. This is true; but in construing what the borough is entitled to under that ordinance, it is most persuasive to recall what the council, on April 1, 1889, did, in accepting plaintiff’s contention that there was a material difference between street lamps and open lights. The case of Williamson v. McClure, 37 Pa. 408, has been well quoted on the argument, wherein Justice Wood-wakd says: “It is a true rule of construction, said Lord ElleNBOROUGH, in Barton v. Fitzgerald, 15 East 541, that the sense and meaning of the parties, in any particular part of an instrument, may be collected- ex antecedentibus et conse-quentibus; that every part of it may he brought into action, in order to collect from the whole one uniform and consistent sense, if that may be done.” Can we imagine the terms of the proposition of March 28th, adopted by the borough April 1, 1889, admits of more senses than one? The very subject matter between them was the alleged difference, under their original contract, of the kind of lights. With what was done before us, can we doubt both parties accepted the substance of the difference between the character of the lights, in consumption and expense of gas? But it is said, by defendant, that this contract of March 28th was only a temporary expedient; that ended, the parties are now remitted to the original ordinance of March 12th. Let this be granted, and we must repeat with emphasis, when construing the original contract, that the construction the parties themselves gave it continually presents itself. When so intelligent a body as the town council, speaking for the community, formally by a contract recognized the difference between street lamps and open lights, agree to pay for the latter, when the former was secured them free, how can we fail to regard their act, if not conclusive, certainly as most persuasive, when inquiring whether a street lamp or an open street light is practically the same thing ? For the moment, however, dismissing any consideration of the contract of March 28th, and reading alone the fifth section of the ordinance of March 12th, what does it mean? What does its reading indicate the parties to be bound intended? “ Shall furnish gas for all street lamps, for the council chamber, town hall, and all town police purposes,” it says. In the connection we find this sentence, the natural inference is, the same character of lights for streets was to be used for the town hall and council chamber. There are some matters we can take judicial cognizance of without evidence. What we see and know, in. general use, for heating and lighting houses and streets in a large section of the country, may be recalled and discussed by the court, without waiting to hear particular evidence about it. Observation informs us the open, flaring natural-gas lights we see at night, here, in front of this court house, and at occasional places on the streets, as we walk along, are not used in town halls and deliberative council chambers. Lamps, jets, or burners of the size and appearance of those employed for artificial illuminating gas are there used. The first reading of the section, quoted from the ordinance, impresses us these were the lights in the minds of the council passing it, when they say “gas for all street lamps.” But we have listened with patience and entertainment to the learned counsel for defendant, in his copious citations from lexicographical authority to show, from the etymology of the words, that lamps and lights were really synonymous and should be here so treated.Leaving the region of literature and science, and recalling our common sense and observation, in the natural gas regions of Pennsylvania the street lamp and the open street light are each employed and have obviously different characteristics. Their very construction indicates a difference in gas-consuming, as well as light-giving power. We cannot ignore what is so manifest to our senses, as we travel along the railroads and through the gas towns of western Pennsylvania. We must accept as true what is so plainly visible. Accepting, then, the contention of the defendant, now, to secure the dissolution of this preliminary injunction, that the parties, since the termination of the contract for open lights of April 1, 1889, are remitted to the terms of the ordinance of March 12, 1888, we cannot say the claim of the plaintiff company, as at present advised, that street lamps are not open street lights, is so doubtful, in view of all that has transpired, as to require us to refuse equitable interference by injunction. We have considered the objection of the defendants, although not formally demurring, to our jurisdiction in equity, yet the same as if they had. W e cannot fail to regard that any remedy at law would be inadequate, under the circumstances, for both parties. Suits at law by the plaintiff for the gas consumed by the open lights, would certainly be less convenient to all the parties. These are tests for equitable, interference we cannot disregard. We will, therefore, for the present, continue the injunction against the use of the open street lights. We have indicated, in a general way, in this opinion, the kind of street lamps we think the defendants can use and the plaintiffs must supply gas for. We shall forbear discussing the matter, now, further in detail, but will remark we do not think the plaintiffs can dig up the streets to prevent the burning of the gas, as contended by it in its bill, nor do we think the defendants are limited in number in the use of street lamps. Of course, in this respect they should be reasonable. And now, to wit, April 80, 1890, preliminary injunction continued, and the case will proceed in regular way to final bearing. Tbe bond is directed to be increased to $8,000 and to be filed within ten days.8 —Subsequently, upon the suggestion of the defendant, the following decree was entered : And now, to wit, July 12,1890, the defendant suggesting that- there is no actual dispute of facts involved as the basis of the injunction, but the injunction manifestly depends upon the rights of the parties in the use of gas for street lights on the contracts and ordinances admittedly made, as recited in the opinion of the court, the defendant therefore requests the court to make the injunction already granted perpetual, so an appeal may be taken to the Supreme Court and final decision expedited and the expense and annoyance of further hearing, to establish facts already appearing in the affidavits and stated in the opinion of the court and not disputed, be avoided. Following, therefore, the suggestion of the parties, here, and also in the opinion of Justice Read, in McCallum v. Water Co., 54 Pa. 59, “there can be no reason in a plain case, why it should not be finally decided by this tribunal upon the case before them,” the preliminary injunction heretofore granted, prohibiting the borough authorities from using the plaintiff’s gas for open street lights, is now made perpetual, for the reasons stated in our opinion filed April 30,1890. While we refused the injunction to prevent the borough from interfering with the gas company, plaintiff, in its efforts to sever the connection between the lamp posts and the company’s mains, we decree nothing against the right of such company to go upon and dig up the streets for the purpose of mending or laying its pipes to the places of consumption for its customers and patrons. The defendant borough is further ordered, to pay the costs.3 Thereupon, the defendant took this appeal, specifying that the court erred: 1-3. In entering the several decrees of April 14, April 30, and July 12, 1890.1 3 Counsel cited: Grubb’s App., 90 Pa. 228. Counsel cited: Pittsburgh’s App., 115 Pa. 4; High on Inj., 2d ed., § 1309; McOallum v. Water Co., 54 Pa. 40.
138 Pa. 260Estate of Marshall (1890)
138 Pa. 264Opening of Sheridan Ave. (1890)
APPEAL BY MARY ROGERS FROM THE COURT OE QUARTER SESSIONS OF ALLEGHENY COUNTY. No. 271 October Term 1889, Sup. Ct.; court below, No. 15 September Term 1888, Q. S. On September 22, 1888, upon the petition of the burgess and town council of the borough of Bellevue, presenting certain ordinances and the official plan of said borough, the court below appointed viewers, under the provisions of § 1, act of April 22, 1856, P. L. 525, to assess damages for injuries, or contributions for benefits, to arise from the opening of a portion of Sheridan Avenue, under said ordinances.' On December 22, 1888, the report of the viewers was filed, approved and confirmed nisi. On March 2, 1889, Mary Rogers, to whom damages had been awarded by the report, presented her petition praying for the appointment of a jury of review; reviewers appointed. On March 22,1889, on motion of the borough, a rule was granted upon Mary Rogers to show cause why the order of March 2d, appointing reviewers, should not be vacated, for the reasons following: 1. The act of April 22, 1856, P. L. 525, makes no provision for the appointment of reviewers. 2. Under said act, the court alone, “ on the hearing of such parties as choose to contest the same,” has the exclusive power to review, “ modify, approve and confirm ” the report of the viewers, and no authority is vested in the court either to appoint reviewers, or to consider and dispose of their report. —Said exceptions having been argued, the court on June 1, 1889, filed an order vacating the order of March 2, 1889, appointing reviewers, and dismissing the petition of Mary Rogers therefor. An order having been entered on October 12, 1889, confirming the report of the viewers, Mary Rogers took this appeal, assigning the order of June 1st, for error. Counsel cited: Street v. Commonwealth, 6 W. & S. 209; Cohen v. Commonwealth, 6 Pa. Ill; Commonwealth v. Easton Bank, 10 Pa. 442; Brady St., 99 Pa. 591; Parkesburg Bor. St., 124 Pa. 512; C. Street, Verona Bor.. 118 Pa. 171.
138 Pa. 266Marshall Etc. Co. v. Pittsb. Traction Co. (1890)
(а) A construction company became bound to construct and put into place, for a traction street-railway company, the iron work and appliances for the curves, as per drawings and specifications, at a certain price per linear foot on the centre line of the track. (б) After the work was begun, a change was made in the plans by which three curves, at a certain point, were made practically into one, by lengthening the radii and placing lighter and less complicated castings between the boxes described in the specifications: 1. In an action for the price of the work, it was not error to instruct the jury that the plaintiff could recover for the filling pieces only their actual value, “unless when the change was made there was an agreement, express or implied, that it was part of the curved work to be paid for at the contract price.”
138 Pa. 270Miller v. Rivers (1890)
138 Pa. 276Commonwealth v. Orr (1890)
1. Where the entire charge to a jury is not assigned for error, specifications making general complaints of it, as unfair and one-sided, without quoting the particular portions alleged to be erroneous, cannot be considered: Burke v. Maxwell, 81 Pa. 139, distinguished. 2. It is well settled that it is not error for a judge, in his charge to the jury, to express his opinion upon the facts, if done fairly; in some cases it may be his duty to do so, provided he does not give a binding direction, or interfere with the province of the jury. 3. On the trial of an indictment for rape, where the defendant testified on his own behalf, not only was it not improper, but it was the duty of the court to call the attention of the jury to the interest of the defendant, as affecting the question of his credibility. 4. Nor was it error, after testimony was adduced to establish an alibi, to call the attention of the jury to the uncertainty of an effort to recall the exact hour or half hour of the occurrence of an event on a certain day, when there was nothing to fix it as of that time.
138 Pa. 285Estate of Marshall (1890)
APPEAL BY SECOND N. BANK EROM THE ORPHANS’ COURT OE ALLEGHENY COUNTY. Nos. 56-59 October Term 1890, Sup. Ct.; court below, Nos. 368-366 December Term 1888, O. C. On February 16, 1889, to No. 363 December Term 1888, of the court below, Anna Frances Marshall, a legatee under the will of James Marshall, deceased, filed her petition averring that James Marshall, Jr., who was one of the executors of said testator, being engaged in business individually under the name of James Marshall & Co., procured the discount of a certain note at the Second National Bant of Allegheny, for his own benefit and in connection with his said business, and unlawfully pledged to said bank, as collateral security for said note, 75 shares of the Farmers Deposit National Bank, belonging to the estate of said testator and held in trust by the executors for uses and purposes set forth in said will; that said James Marshall, Jr., having become insolvent, was afterwards discharged from his executorship; that Thomas M. Marshall, Mark W. Watson and Matilda Marshall, the remaining executors, being notified by the petitioner to take proper legal steps for the recovery of said stock, neglected and refused so to do ; praying, in substance: 1. That said remaining executors be required to institute proceedings for the recovery of said stocks and moneys, and that said bank be restrained in the meantime from otherwise disposing of the same; or 2. That the court, by order or decree, compel said bank to re-transfer said stocks, and pay over the dividends collected by it thereon to said executors. At Nos. 364, 365, 366 of the same term, similar petitions were filed on the same day by Anna F. Marshall, as to similar pledges of other stocks belonging to said estate made by James Marshall, Jr., to the Second National Bank of Allegheny. The petitions at Nos. 364 and 365 related to certain shares of the stock of the Allegheny Gas Company, and that at No. 366 to certain shares of the stock of said Second National Bank. Upon the filing of the petitions, citations were awarded by the court against all parties in interest. Thomas M. Marshall, executor, and Mrs. Watson, Mrs. Talbot and James Marshall, Jr., children and legatees of James Marshall, deceased, made no answer, and the petition was taken pro confesso as to them. M. W. Watson and Mrs. M. Marshall, executors, filed separate answers, substantially admitting the averments of the bill, and asking to intervene as parties petitioning. The Farmers Deposit National Bank and the Allegheny Gas Company disclaimed interest in the subject-matter of the controversy, and submitted themselves to the judgment of the court. The Second National Bank filed answers in which it substantially set forth: 1. That said loans were made to the firm of James Marshall & Co., on the representations of James Marshall, Jr., that the said firm was composed of the estate of James Marshall, deceased, and himself, who were associated in the business of said firm, and that he, the said James Marshall, Jr., was the acting and managing partner of said firm; that all said loans were made on the credit of said firm so constituted and composed, and the money was paid to said James Marshall, Jr., as the active business partner of said firm of James Marshall & Co.; that it was informed and believed and expected to be able to prove, that the business of James Marshall & Co. was carried on by James Marshall, Jr., for the benefit of himself and the three other legatees and devisees named in the will of James Marshall, deceased, and that said legatees received, enjoyed, participated in, and used their respective shares of the profits of said firm. 2. That respondent had actually held said stocks more than six years, and had acquired title thereto by virtue of the statute of limitations. 3. That the court had no jurisdiction in the premises. After a bearing upon testimony, tbe four cases being by consent beard together, tbe court, Hawkins, P. J., filed tbe following decision: FINDINGS OF FACT. James Marshall died in 1869, leaving a will in which be appointed Thomas M. Marshall, Mark W. Watson, James Marshall, Jr., and Matilda Marshall, executors and trustees, and gave his estate to said trustees for an indefinite term, for the benefit of his widow and children. Anna F. Marshall, the present petitioner, who was the youngest child, attained her majority in August, 1886. All the executors and trustees qualified; but James Marshall, Jr., became the acting executor and trustee, and so continued until April 16,1883, when, having become insolvent, he ceased to act, and the surviving executors and trustees assumed the duties of the trust. James Marshall, Jr., was discharged as executor and trustee in 1887. While acting executor and trustee, James Marshall, Jr., trading as James Marshall & Co., procured certain notes to be discounted by the Second National Bank of Allegheny, upon the security of stocks belonging to the estate of James Marshall, deceased, as follows : 1. March 26, 1883, note signed by Oliver Wylie, payable thirty days after date, for $14,000, for which was pledged as collateral a certificate for 75 shares of the capital stock of the Farmers Deposit National Bank of Pittsburgh, showing on its face that it belonged to the estate of James Marshall, deceased. This note was the last renewal of a series of notes beginning May 11, 1881. The first pledge of the stock was made May 1, 1882; and renewed pledges were made with the successive renewals of the notes aforesaid. Dividends have accrued and are in the hands of the Farmers Deposit National Bankamounting to $7,200. 2. April 7, 1883, note signed by John D. McCune, payable thirty days after date, for $12,000, for which was pledged as collateral, by James Marshall, Jr.’s transfer on the books as acting executor, 300 shares of the capital stock of the Allegheny Gas Company belonging to the estate of James Marshall, deceased.* This note was the last renewal of a series of notes beginning May 11, 1881. The first pledge of this stock was made May 10, 1882, and renewed pledges were made with the successive renewals of the notes aforesaid. Dividends on these stocks have been received by the pledgees. 3. March 30, 1883, note signed by C. H. Hetzel payable 30 days after date for $15,000, for which was pledged as collateral, by James Marshall, Jr.’s transfer on the books as acting executor, 390 shares of the capital stock of the Allegheny Gas Company belonging to the estate of James Marshall, deceased. This note also was the last renewal of a series of notes beginning February 28, 1882. The first pledge of this stock was made March 25,1882, and renewed pledges were made with the successive renewals of the notes aforesaid. The Second National Bank has received in dividends on 690 shares of gas stock, $12,660. 4. March 27,1883, note signed by J. N. Davidson payable 30 days after date, for $2,500, for which was pledged to said J. N. Davidson (who was cashier of said bank), by James Marshall, Jr.’s transfer as acting executor, 20 shares of the capital stock of said Second National Bank, belonging to the estate of James Marshall, deceased.* This note was the last renewal of a series of notes beginning November 15, 1881. The first pledge of this stock was made November 15,1881, and renewed pledges were made with the successive renewals of the said notes. Fifteen of these shares were sold by Mr. Davidson, under power contained in the note for which they had been pledged as collateral; and the remaining 5 shares are held by him subject to the order of the executors. The bank received dividends on this stock. All the notes prior to the last were surrendered by the Second National Bank upon renewals. These discounts were made by said bank for, and the proceeds were used by James Marshall & Go. James Marshall, Jr., represented to the discounting bank, and it believed, that the estate of James Marshall, deceased, was in the firm. J ames Marshall was in his lifetime a partner, but the firm was dissolved by his death, and James Marshall, Jr., had no authority whatever to bind the estate. The estate had no need of these discounts, and received no benefit, directly or indirectly, from them. They were made without the consent or knowledge of either the co-executors or co-legatees of James Marshall, Jr. As already stated, James Marshall, Jr., having become insolvent, ceased to act as executor and trustee in 1888, was discharged from his trust in 1887, and thereupon the surviving executors and trustees assumed the duties of the trust, and have so continued since. James Marshall, Jr., filed no account of his administration. He was very largely indebted to the estate. These pledgees do not claim absolute title to the stock held by them respectively. The position taken by their counsel, in argument, was that because the original pledge was illegal as against the estate, their holding thereby became adverse, and the statute of limitation, running from that date, perfected their title as pledgees as against the estate. CONCLUSIONS OT? LAW. 1. It was not denied in argument, that, assuming this court had jurisdiction over the controversy here, Anna F. Marshall had a right, as party petitioner, to institute these proceedings. The reasons for her action were the same as those which were recognized as being sufficient in the Odd Fellows Bank’s App., 128 Pa. 856. She was beneficially interested; the stocks were needed for the due administration of the estate, and the surviving executors had refused or neglected to take action. 2. And the same reasons exist here, as there, for maintaining the jurisdiction of this court to afford relief. The respondents, admit that at the time of the original pledge the stocks were the property of the estate of James Marshall, deceased, and that they were illegally pledged for the individual debt of James Marshall, Jr. This court had jurisdiction of the settlement of the estate of James Marshall, deceased, and its possession of these stocks was an essential step towards that settlement. It had, in fact, possession of them, for the possession of its officer is the possession of the court: Kerr on Receivers, 165 ; Wheat-land’s App., 125 Pa. 38. Could that officer have successfully denied accountability for these stocks, and held them for his own use in defiance of the jurisdiction of this court? If not, can his pledgee, who took with notice that the pledge was made in violation of a trust, claim an immunity which he could not have successfully claimed? It is well settled, in courts of equity, that trust funds, so taken, may be followed so long as they can be identified, no matter through how many hands or transmutations they may have passed; and the wrongful holder becomes a trustee ex maleficio, subject to the same rules and remedies as the lawful trustee: Perry on Trusts, § 245. This court is a court of equi-r ty, and within the orbit of its jurisdiction administers equity by the same rules and remedies. What more appropriate, indeed, what other tribunal could there be to follow these assets ? It has exclusive jurisdiction of the settlement of this estate'; and for the purpose of that settlement, had these stocks in its. possession when they were eloigned. The pledge, in contemplation of law, was a contempt, and punishable as such exclusively by this court: Kerr on .Receivers, 165. It will readily be conceded that, in those cases in which this court has never had possession of the assets of decedents, as where the pledgee claims title derived through a stranger to the estate ; or where, as in Delbert’s App., 83 Pa. 468, an executor de son tort has taken possession, the jurisdiction belongs to another tribunal. But here, possession of the stocks was admittedly in the hands of the officer of this court, and was. illegally taken from him. They have been traced into these, respondent’s hands and identified. Those in possession are trustees ex maleficio, claiming title through a trustee who was subject to the jurisdiction of this court, and recovery of possession of these stocks is essential to the exercise of the exclusive jurisdiction of this court in the settlement of the es-, tate of James Marshall, deceased. It cannot be doubted, that in these circumstances, this court can maintain its jurisdiction as a court of equity, and restore these assets to their original status. Its equitable jurisdiction having once attached, is sufficient to embrace every relief necessary to a full disposition of the case. “ When a cause is once within the grasp of a court of equity, or a court lawfully exercising equity powers, it has no need to call in the aid of a court of law. Its process is plastic, and its power is only limited by the necessities of the case, and by its duty to administer equity in accordance with established rules. In such case, it needs no other court to finish its work: ” Odd Fellows Bank’s Appeal, supra. For these reasons the plea to the jurisdiction must be overruled. 3. Nor can the plea of the statute of limitations be sustained. Treating the pledge of stocks as a contempt, the only admissible answer of the pledgees is to restore the stocks and purge themselves of contempt: Kerr on Receivers, 165. Contempts may relate, as well to misconduct tending to obstruct the proceedings of courts or mar -their efficiency, as to disobedience to decrees; and it is obviously essential to the purposes of their jurisdiction that they should have power to punish such misconduct whenever it shall be brought to their notice: Wells oil Jur., § 178. When the jurisdiction of a court has once attached, time cannot run against its exercise. The collusion of its officers might otherwise defeat the administration of justice, without any default on the part of those for whose benefit suph jurisdiction was established. James Marshall, Jr., was amenable to the jurisdiction of this court, as acting executor of the will of James Marshall deceased, and it must be conceded that he could not have pleaded the statute of limitations as against the exercise of that jurisdiction, in respect of the stocks; his pledgees are trustees ex maleficio, who sit in his seat, amenable to the same jurisdiction; and there is no reason why they should have privileges which he could not have claimed. Treating the pledge as affecting the beneficial ownership of this petitioner, these trustees ex maleficio are subject to the same rules and remedies as, and can have no greater rights or privileges than James Marshall, Jr. They hold these stocks under an express trust, indefinite in its duration, which was created by the will of James Marshall, deceased, and of which this court has exclusive jurisdiction; and the question now involved is between them as trustees and their cestuis que trust. Even, therefore, upon the principle announced in Yorks’ App.,.110 Pa. 69, the statute of limitations has no application. There is no analogy with the case of a creditor whose claim has not been seated on the trust by action, and who may resort for that purpose either to the Court of Common Pleas or this court: Reber’s App., 125 Pa. 20. It may be that if a trustee repudiates the trust by clear and unequivocal acts or words, and claims tbencofortb to bold the assets as bis own, and sucb repudiation and claim are brought to the notice of cestuis que trust, who are sui juris, long acquiescence majr raise a presumption of abandonment on the part of such cestuis que trust. But notice of such repudiation and claim must be brought home to the cestuis que trust; the attitude of the trustee must be continuously hostile, and there must be no room for mistake or misunderstanding as to the character of his holding: Perry on Trusts, § 864; Fox v. Cash, 11 Pa. 207. Adverse holding implies notice: Johnston v. Humphreys, 14 S. & R. 394. Lord Justice Knight Bruce said, in Stone v. Godfrey, 5 De G. M. & G. 86, that where one entered into possession as trustee, he could not bo permitted to set up a possession or title in himself adverse to his cestui que trust without first resigning the trust and delivering over possession, for no claim could be made through a breach of trust. So, it was said in Pierce v. McKeehan, 3 W. & S. 280, that a trustee can acquire no right, nor those in privity with him, by a breach of trusL Even a tenant must yield up possession of land before he can contest bis landlord’s title. The relation of cestui que trust to his trustee being one of confidence that his estate will be preserved for him, the burden is clearly on the trustee to give him such notice as will enable him to protect his interests from any adverse or inconsistent claim on the part of the trustee. Constructive notice cannot be sufficient, because, owing to the confidential relations of the parties, the cestui que trust cannot be supposed to be on his guard. In the nature of the case, act ual notice must be essential. What lapse of time after actual notice has been given, will bar the cestui que trust, must depend upon the circumstances of each case. The result of the authorities is stated in Perry on Trusts, § 864, to be twenty years. In the case of Waterman v. Brown, 31 Pa. 161, upon which respondent relies, six years was adopted by analogy “ under the circumstances of the case ” as raising a presumption of abandonment; but that was a case between pledgor and pledgee, and lacking in the element of breach of trust. But, assuming that a reasonable period within which the cestui que trust must take action, this petitioner is in time. There was in fact no adverse claim made by these pledgees, as trustees ex maleficio, until after the last note bad been discounted. They admit that until then they supposed the estate of James Marshall, deceased, was in the firm of James Marshall & Co. The whole series of notes, and the successive renewals of pledges -were confessedly made upon that supposition. The last pledge •was made by James Marshall, Jr., within six years, as collateral •security for the last discounted note; there could have been no ■ pledge without actual or implied possession, and his possession was the possession of the estate. The acceptance of the pledge was a distinct recognition of title in the estate within six years. And there was no actual notice of any adverse claim by the trustees ex maleficio until after the last note had been discounted, to any of the parties, trustees, or beneficiaries named in the will ■of James Marshall, deceased. James Marshall, Jr., asserts that he was not aware the pledge was a breach of trust; and the •other parties had no knowledge that the pledge was being made. :Three of the four beneficiaries were under disabilities ; and of these, Anna F. Marshall, the present petitioner, did not obtain her majority, and was incapable of receiving notice until 1886. There was nothing in the circumstances to put any of. these parties other than James Marshall, Jr., upon their guard. These stocks were in the'custody and control of James Marshall, Jr., as their trustee; and they had a right to assume that he would ■faithfully discharge his duty. So far as this petitioner is concerned, there can be no difference between an actual and a constructive breach of trust; the results are the same to her, and she can repudiate either, in the assertion of her rights of property. It is therefore immaterial to the issue here, whether these pledgees had, or had not, actual notice that the pledge was made in breach of the trust under which the stocks were held, .as there was enough to put them upon inquiry; inquiry became a duty, and would have led them to a knowledge of the facts. The absence of any reference in the will to the firm of James Marshall & Co., ought of itself to have excited inquiry. There is no evidence that they even examined the will, or made inquiries of the co-executors or co-legatees of James Marshall, Jr., or consulted an attorney with ■reference to the matter. They appear to have trusted alone to •the representations of James Marshall, Jr., and have themselves to blame for their credulity. It would be simply a perversion of justice to bold that in such circumstances, this petitioner, without any default on her part, should lose her beneficial interest in these stocks. Whether, therefore, these pledges be treated as contempts, or as affecting the beneficial ownership of this petitioner, they were breaches of trust and invalid, and made these pledgees trustees ex maleficio, in privity with James Marshall, Jr., who was the lawful trustee, and like him amenable to the jurisdiction of this court. It follows, that the stocks so pledged in breach of the trust under which they were held, remaining unsold, the proceeds of those sold, and all accruing dividends in the hands of said trustee ex maleficio must be transferred to the rightful custodians, the surviving executors of the will of James Marshall, deceased. It may well be that as between James Marshall, Jr., and his pledgees, the latter have an equity as against such share as shall be awarded the former in distribution, upon settlement of the estate of said decedent, and the transfer must be made without prejudice to such claim. Formal decrees were then entered, adjudging that the stocks in controversy belonged to the estate of James Marshall, deceased, and were part of its assets; ordering that the respective corporations by which said stocks were issued should recognize the executors and trustees under the will of said decedent as the owners thereof, and account for and pay over to said executors and trustees all dividends on said stocks not previously paid to them; that the Second National Bank of Allegheny deliver up to said executors and trustees the certificates of stock pledged with it, in the case of the shares of its own stock pledged by James Marshall, Jr., re-assigning and delivering up the five shares which remained unsold, and accounting for and paying over the sum of $2,550, as the proceeds of those sold under the pledge, with interest thereon from October 1, 1883; and that the trustees should hold said stocks, cash and dividends, subject to the right, if any, of said bank to claim, on final distribution of the estate, the share or interest therein which may be determined to belong to James Marshall, Jr. Thereupon the Second National Bank took these appeals, specifying in substance, that the court erred: In assuming jurisdiction of the disputed question of the title to said stock; in making the several parts of the decrees; in not decreeing that the appellant’s possession as pledgee was adverse to the estate of James Marshall, deceased, and, under the statute of limitations, ripened into a perfect legal title, to the extent of the bank’s lien and estate therein, with remainder over to the executors and trustees; in not finding that the pledges by James Marshall Jr., acting executor, were notice to his co-executors and co-trustees; and in not applying the principle that when the legal title to stock is vested in trustees, and, failing to sue for it within six years, they are barred, their eestuis que trust are barred also. 1. If the ruling in Odd Fellows Bank’s App., 123 Pa. 356, is to stand, it is unnecessary to discuss the question of jurisdiction. Assuming, as matter of law that the estate of James Marshall deceased, was not in the firm of James Marshall & Co., and that James Marshall, Jr., was not authorized to use or pledge stocks of the estate in connection with the firm business, as was held in First N. Bank’s App., 19 W. N. 309, yet the appellant believed otherwise, and upon such belief in good faith made the loans and parted with its money.' And it claims an absolute title under the statute of limitations, by continuous possession of the stock for more than six years. But, as showing its good faith, it is willing that an equitable decree be made, directing that whatever remains of the proceeds of the stock and dividends, after payment of its claims, shall be paid to the executors and trustees of the estate. 2. Is the statute of limitations a bar ? A trust to which the statute is inapplicable must be (a) direct and continuing, (5) exclusively cognizable in equity, and (c) arising between trustee and cestui que trust. All three of these elements must enter into its composition: Yorks’ App., 110 Pa. 79; Lyon v. Marclay, 1 W. 271; Finney v. Cochran, 1 W. & S. 112; App v. Dreisbach, 2 R. 287; Zacharias v. Zacharias, 23 Pa. 452; Barton v. Dickens, 48 Pa. 518; Sankey v. McElevey, 104 Pa. 265 ; Wickersham v. Lee, 83 Pa. 422; Glenn v. Cuttle, 2 Gr. 273; Alexander v. Leckey, 9 Pa. 120; Hamilton v. Hamilton, 18 Pa. 20"; Bull v. Towson, 4 W. & S. 557; Neely’s App., 85 Pa. 387. When concurrent remedies, legal and equitable, exist, the statute applies ; and if it is a bar at law, it is so also in equity: Bank of U. S. v. Biddle, 2 Pars. 31; Strimpfler v. Roberts, 18 Pa. 283; Curcier’s Est., 28 Pa. 261; Todd’s App., 24 Pa. 429; Spering’s App., 71 Pa. 11; Biokel’s App., 86 Pa. 204; Irwin v. Cooper, 92 Pa. 298; Yorks’ App., 110 Pa. 75; Zacharias v. Zacharias, 23 Pa. 455. If the Orphans’ Court has jurisdiction of this controversy as to title, its jurisdiction is not exclusive. The executors may proceed by action at law or bill in equity, and in either they would be met by the bar of the statute. Like concurrent remedies, legal and equitable, exist to enforce and protect the rights of the bank. 3. The right of the executors to recover against the bank, measures that of the legatees. If the former cannot recover directly in their own names, they cannot do so indirectly through an action in the names of the legatees. The rule between legatee and executor that an express continuing trust is not affected by the statute, has no application to third persons ; and, if the executors, who had the legal title to the stock and could have sued for it are barred, so are their cestuis que trust: Smilie v. Bifile, 2 Pa. 52; Molton v. Henderson, 62 Ala. 426; Rush v. Barr, 1 W. 110; Lyon v. Marclay, 1 W. 271; Wickersham v. Lee, 83 Pa. 422; Coleman v. Walker, 3 Met. (Ky.) 65 (77 Am. Dec. 163) ; Llewellyn v. Mackworth, Barn. Ch. 445; Bond v. Hopkins, 1 Sch. & Lef. 429; Medlicott v. O’Donnell, 1 B. & B. 156; Perry on Trusts, § 858; Maus v. Maus, 80 Pa. 203; Warn v. Brown, 102 Pa. 353; Williams v. Otey, 8 Humph. 563 (47 Am. Dec. 632) ; Wooldridge v. Bank, 1 Sneed 297; Pendergast v. Foley, 8 Ga. 1; Goss v. Singleton, 2 Head. 67; Long v. Cason, 4 Rich. Eq. 60; Herndon v. Pratt, 6 Jones Eq. 327; Wingfield v. Yirgin, 51 Ga. 139; Brady v. Walters, 55 G a. 25; Varner v. Gunn, 61 Ga. 54; Waring v. Railroad Co., 16 S. C. 417 ; Love v. Love, 65 Ala. 555; Bisph. Eq., 4th ed., 94 (4). 4. When did the statute begin to run ? It commenced running from the very moment when the bank got possession of the stock, for at that moment an action accrued to the executors for its recovery; and possession thereafter for more than six years ripened into a legal title: Waterman v. Brown, 31 Pa. 161; Zacharias v. Zacharias, 23 Pa. 454; Downey v. Gar-ard, 24 Pa. 52; Campbell v. Boggs, 48 Pa. 524; Sankey v. McElevey, 104 Pa. 273. The possession of the bank lacks every element of fraud or concealment, and even of silence, to stay the running of the statute. But the appellees claim that the pledging of the stock was illegal at its inception, and that the bank was visited with notice of its illegality. If this be so, the rule of notice must work both ways. The analogy drawn by the court below between the possession of an executor and that of a receiver, is fallacious. To hold that trust assets held by an executor are in possession of the Orphans’ Court, and therefore no limitation can run against its jurisdiction, is to establish an anomaly in jurisprudence, and to depart from a long line of precedents, uniform and unbending, to the contrary. Nor does the fact that the loans were renewed within six years, toll the statute. The renewal 'notes in no way affected the bank’s possession, or the right of the executors to bring suit, or the running of the statute from the inception of the bank’s possession. 5. The claim that the statute would not begin to run until the cestuis que trust had knowledge of the bank’s possession, •is unsupported by authority: Sankey v. McElevey, 104 Pa. 265; Hostetter.v. Hollinger, 117 Pa. 611. James Marshall, Jr., had full knowledge of the facts, and his knowledge was notice to his co-executors and to the cestuis que trust whom thejr represented: Bisph. Eq., 4th ed., 337 (3) ; Perry on Trusts, §222; Eeed’s App., 34 Pa. 207; Astor v. Wells, 4 Wheat. 466; Bracken v. Miller, 4 W. & S. 102; Blair v. Owles, 1 Munf. 38; Brotherton v. Hatt, 2 Vern. 574; Mechanics’ Bank v. Seton, 1 Pet. 309; Jackson v. Sharp, 9 Johns. 163; Le Neve v. Le Neve, 3 Atk. 646; Tunstall v. Trappes, 3 Sim. 301; Jackson v. Winslow, 9 Cow. 13; Bank of U. S. v. Davis, 2 Hill 451; Fuller v. Bennett, 2 Hare 202; Maddox v. Maddox, 1 Ves. Sr. 61; Ashley v. Baillie, 2 Ves. Sr. 368; Sheldon v. Cox, 2 Eden 224; Sterling Br. Co. v. Baker, 75 Ill. 139; Hovey v. Blanchard, 13 N. H. 145; Griffith v. Griffith, 9 Paige 315; Wade on Notice, § 681; Fulton Bank v. Canal Co., 4 Paige 127; North R. Bank v. Aymer, 3 Hill 262; National S. Bank v. Cushman, 121 Mass. 490; Edwards v. Thomas, 2 Mo. App. 282; Watson v. Wells, 5 Conn. 468. The co-executors, moreover, had actual knowledge of the pledges as early as April, 1883. With knowledge that the statute of limitations had started on its journey, they neglected to bring suit from that time until February 16, 1889 ; it has therefore intervened to prevent recovery: Byrne v. Frere, 2 Moll. 137 ; Sankey v. MeElevey, 104 Pa. 273. 1. The appellant cannot set up the statute of limitations, for the reason that it held the stock merely as collateral and did not claim to own it, and the statute does not run in favor of a pledgee, so long as he holds in that character: Edwards on Bailment, § 321; Humphrey v. Bank, 113 Pa. 422; Reynolds v. Cridge, 131 Pa. 194; Prentiss v. Hannay, 4 Wh. 508; Trickett on Limitations, § 210; Brown v. Tyler, 8 Gray 140; Hancock v. Insurance Co., 114 Mass. 156 ; Story on Bailments, § 346. 2. Another reason prevents the bank from pleading the statute, viz., that it held the stock as a trustee ex maleficio. It was visited with notice of the provisions of the will: Gar-rard v. Railroad Go., 29 Pa. 158; Hill v. Epley, 31 Pa. 336 ; Smith v. Ayer, 11 Otto 326. Taking with notice of the fraudulent use, it was a participant in the executor’s breach of duty: Wood’s App., 92 Pa. 379. It can no more set up the statute, therefore, than its co-conspirator, James Marshall, Jr., could. In cases of fraud by a trustee, the statute does not run until discovery of the fraud: Hill on Trustees, *266-269. This is such a trust, therefore, as is not barred by the statute : Yorks’ App., 110 Pa. 79. 3. But, even if the bank could be regarded as holding the stock adversely to the real owners, the statute of limitations cannot avail it, because the statute could run only from the date of the last pledge, which was within six years of the commencement of the present suit. In order that its title under the statute might mature, the bank must have held for six years uninterruptedly and adversely. An interval or lapse of one instant in the holding, or any interruption in its adverse character, will toll the statute: Clarke v. Dougan, 12 Pa. 87; Sailor v. Hertzog, 4 Wh. 259; Trickett on Limitations, §§ 74, 75; Diller v. Brubaker, 52 Pa. 504; Morrell v. Trotter, 12 W. N. 144. Each renewal was such an interruption: Slay-maker v. Gundacker, 10 S. & R. 82. 4. It was the duty of James Marshall, Jr., bimself, to bring an action and recover the stocks. This court has ruled that when a trustee has made an unauthorized pledge of the trust, assets, the same trustee can institute legal proceedings to recover them back, and that it is his duty to do so: Abbott v. Reeves, 49 Pa. 494. The statute certainly would run against James Marshall, Jr., only from the dates of the last pledges, and probably only from the maturity of the notes for which those pledges were made: Waterman v. Brown, 31 Pa. 161. This suit of Anna F. Marshall is in lieu of the suit of her unfaithful trustee. If he might sue within six years after the last pledge, can she be barred in less time ? There are no-equitable circumstances in the case to induce the court to withhold its aid from her.
138 Pa. 301Fisher v. Baden Gas Co. (1890)
2 OF ALLEGHENY COUNTY. No. 238 October Term 1890, Snp. Ct.; court below, No. 362 January Term 1888, C. P. No. 2. On November 26, 1887, upon petition of William Fisher, the court below appointed viewers to assess the damages payable to him by reason of tbe location and construction upon and through his land in the borough of Glenfield of a pipe line for the transportation of natural gas by the Baden Gas Company.
138 Pa. 306Swan v. Covert (1890)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 1 OP ALLEGHENY COUNTY. No. 220 October Term 1890, Sup. Ct.; court below, No. 114 December Term 1890, C. P. No. 1. On September 13,1890, a case stated was filed, wherein John Swan and William Lyons, executors of the will of Robert Swan, deceased, were plaintiffs, and Jacob H. Covert, defendant, submitting to the judgment of the court whether the said executors could make title, under said will, to a certain parcel of land, part of the Green Tree farm, sold by them to the defendant by articles of agreement for $3,000, payable in cash on the delivery or tender of a deed. The case stated showed that on June 16, 1873, the date of the testator’s will, containing as paragraph 10 the provision quoted in the syllabus hereto, the testator was the owner of an undivided one fifth interest in a farm in Reserve township, known as the Green Tree farm; that in 1877, under partition proceedings to No. 390 June Term 1877, of the Courtof Common Pleas No. 1, the interest of the testator was set apart to him in severalty, and that the testator died in January, 1880, still owning said purpart, the lot subsequently sold by the plaintiffs to the defendant. After argument of the case stated, the court, Stowe, P. J., entered judgment for the plaintiffs for $3,300; exception. Thereupon the defendant took this appeal, assigning the order entering judgment for the plaintiffs for error. Counsel cited: 2 Washb. on Real P., 654. Counsel cited: Act of June 4, 1879, P. L. 88; Stiver’s Est.* 21 W. N. 335; 3 Redf. on Wills, 137; Leeds v. Wakefield, 10 Gray 514, 519; Gray v. Henderson, 71 Pa. 368.
138 Pa. 308Lewis v. Rattigan (1890)
APPEAL BY DEPENDANT PKOM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY. No. 71 October Term 1890, Sup. Ct.; court below, No. 565 January Term 1889, C. P. No. 2. On January 7, 1889, a summons was served in ejectment brought by Lewis H. Lewis against Bridget Eattigan, to recover a strip of ground in the borough of Homestead, nine inches in width and thirty-five feet in length. At the trial on October 22,1889, it was made to appear that the controversy was as to the true boundary line between lot 74, owned by the defendant, and lot 75 owned by the plaintiff. Charles A. Cooper, a surveyor, called for the plaintiff: “ Q. In making that survey, what did you do in the first place ? A. I fixed the line of Fifth Avenue, as shown on the plan, and as fixed on the ground by buildings and by the street, as it has been approved, and then measured from Fifth Avenue up to this lot line. The distance from Fifth Avenue along Heisel street is 220 feet, and along the alley it is 220 feet, eleven feet from Fifth Avenue. I marked this line that divides lots 74 and 75, and located the houses in a general way on the sketch that is shown here by the dotted lines. “Q. By the court: Are there houses that mark this line? A. There are houses there on Fifth Avenue, yes, sir; lots 69 to 72 front on Fifth Avenue, and run directly back to lot 73 on the original plan.A. The house that stands on lot 74 at Heisel street, is over on lot 75 five inches. There are two houses on lot 74, one at each end of the lot. There is a frame house standing on lot 75 fronting on the alley; it stands about ten inches on its own ground at the time I made the survey. The house that was on lot 74 was being moved, and was not entirely up to this house which was over on lot 75, but there was still a little space between the houses, which was, I think, about six or eight inches over on lot 75, and was in process of being moved.” The witness was subsequently recalled and examined further. At the close of the testimony, the court in charging the jury said: [Mr. Cooper says he fixed the line of Fifth Avenue, which he found by a stake on Heisel street, and found tbe line of bouses, with perhaps some other stakes, and says there is no difficulty in fixing the line of Fifth Avenue, and he measured the same measurement that Mr. Wolf had done, although he says he did not know there had been any measurement by Mr. Wolf.]1 —The jury returned a verdict for the plaintiff for the ground in dispute. 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 summing up the evidence produced by plaintiff, in the part of the charge embraced in [ ] 1
138 Pa. 310King v. Humphreys (1890)
138 Pa. 316Petition of Wolff (1890)
138 Pa. 318Petition of Koch (1890)
138 Pa. 319Petition of McCaffrey (1890)
138 Pa. 321Petition of Goldman (1890)
APPEAL BY PETITIONEE, EROM THE COUBT OE QUARTER SESSIONS OE ALLEGHENY COUNTY. No. 107 October Term 1890, Sup, Ct.; court below, No. 462 March Term 1890, Q. S. On February 4, 1890, David Goldman filed his application for a license to sell liquors at wholesale, under the act of May 24,1887, P. L. 194. The application appeared to be in due form and accompanied by the proper bond. The record, as presented in the paper-books, did not set out any examination of witnesses, but copied in the “ Docket Entries ” was the following order: “ And now April 80, 1890, after hearing and upon due consideration, the following applications of David Goldman et al., for license to sell liquors at wholesale, are hereby refused, for the reason, inter alia, that the applicants do not have the qualifications required by the act of assembly relative thereto.” The petitioner took this appeal, filing the following assignments of error: 1. The court erred in refusing to grant the petition of David Goldman for a license to sell liquors at wholesale, as prayed for. 2. The record showing that the petition and bond of David Goldman were in due form, and that no remonstrance or objection was filed or made to the same, and that the petitioner had complied with the requisites of the law, the court erred in refusing to grant him a license, as prayed for. Counsel cited: Pollard’s Pet., 127 Pa. 507.
138 Pa. 322Estate of Powell (1890)
DITTMOR PROM THE ORPHANS’ COURT OP ALLEGHENY COUNTY. No. 94 October Term 1890, Sup. Ct.; court below, No. 164 December Term 1888, O. C. On December 11,1888, the first and partial account of J. K. Melborn and J. Boyd Duff, executors of the will of John T. Powell, deceased, showing a balance due the estate of $4,261.23, was presented and confirmed nisi.
138 Pa. 327Estate of Giffin (1890)
138 Pa. 330Assigned Estate of Hanika (1890)
2 of ALLEGHENY COUNTY. No. 118 October Term 1890, Sup. Ct.; court below, No. 449 January Term 1889, C. P. No. 2. On December 22, 1888, the account of George H. Lepper, assignee for the benefit of creditors of Frank Hanika, was confirmed nisi. No exceptions being filed, the confirmation was made absolute, and Mr. R. JE. Stewart appointed auditor to report a distribution of the fund.
138 Pa. 332Kaiser v. Flaccus (1890)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF -ALLEGHENY COUNTY. No. 123 October Term 1890, Sup. Ct.; court below, No. 485 December Term 1887, C. P. No. 1. On November 7, 1887, a summons in trespass was served in an action brought by Albert Kaiser against Charles L. Flaccus, to recover damages for personal injuries received. Issue. At the trial on April 20, 1890, it was shown that on February 21, 1887, the plaintiff was in the employ of the defendant, a manufacturer of bottles at Tarentum. His duty was the grinding of bottle necks. The machine at which he was employed consisted of a grinder made of a horizontal plate of cast iron hung on a perpendicular shaft, the plate being protected by a sheet-iron casing about it, extending a little above its upper edge. Over the plate was suspended a box, feeding upon it sand and water. The shaft was run by a belt attached at its top. The testimony of the plaintiff was to the effect that the bearings of the shaft at the top and bottom had become worn so that it wabbled, and tended to throw the belt from the shaft pulley; that no sufficient hanger was supplied to catch the belt should it become loose and fall; that while the plaintiff was at work the belt fell upon him, and, in attempting to lift it from about his head, he was caught about the shaft and his right arm so badly mangled that it had to be amputated. As he testified, he had never seen or been employed about the machine until that day, and his instructions were limited to directions how to hold the bottles upon the grinder. There was also evidence that the engine running the shaft was not at the time in the care of the proper engineer, and that one Stoltz, a fellow employee, ran to the engine and stopped it. From the evidence on the part of the defendant, it was claimed that the plaintiff was guilty of negligence in being at the place where the belt would strike him if it fell; that at that point, which was rather between the shelving and the grinder, there was but little room, and plenty of room about it at other places; that the shaft was not in bad working order, and that the plaintiff’s injury was caused by the carelessness of the boy Stoltz with the engine. At the close of the testimony, the court, Stowe, P. J., charged the jury in part as follows: The defendant has asked us to say to you, and the general principles suggested here cover so fully the whole case, that I have affirmed them all as good law, as follows: 1. That an employer is not a guarantor of the safety of his workmen; and the full extent of his duty to them is that he shall provide them with reasonably safe machinery and appliances with which to work, and keep the same in reasonable condition and repair, and also furnish a reasonably safe working place. 2. That the employer need supply only such machinery as is commonly used by other like employers for the same kind of work, and when he has done this, he has done his full duty- 3. That an employer cannot be held guilty of negligence because he has not furnished the best known or conceivable appliances. 4. That the burden of proof is upon the plaintiff to satisfy the jury, by the fair weight of the testimony in the case, that the machinery furnished for him to work at was not reasonably safe, and that it was not of such a character as could be, with reasonable care on his part, used without danger, except such danger as was reasonably incident to the business at which he was employed. 5. That a servant assumes the ordinary risks incident to the service, as well as of known dangers, and also such risks as become apparent by ordinary observation; and, if the jury should find that on the day of the injury the plaintiff placed himself unnecessarily in a place obviously dangerous, and there received his injury, he cannot recover. 6. That from the facts alleged by the plaintiff, that he was previously employed in the box factory, and had never before worked at the glass grinder, the jury would have no right to infer negligence on the part of the defendant. 7. That from the testimony given on the part of the plaintiff, in relation to the use of an iron bar or rod in putting the grinder belt on the pulleys, the jury would have no right to infer negligence on the part of the defendant. 8. That if the jury should find that the injury happened in the manner alleged by plaintiff, yet, if they further find that the dropping of the grinder belt was directly tbe result of tbe stoppage of tbe engine by John Stoltz, Jr., and that John Stoltz, Jr., was not tbe engineer, and stopped the engine of bis own volition, without directions from any one, without notice to the plaintiff, and without any reasonable necessity, and further find that said Stoltz was a fellow workman with the plaintiff, then they must find that the injury to the plaintiff was caused by the negligence or carelessness of the said Stoltz, and their verdict must be for defendant. 9. That if the jury find that, after the grinder belt fell from the pulley, and while the grinder was still in motion, the plaintiff climbed up on the grinder and attempted to replace the belt, and in so doing was caught between the belt and shaft, he was himself guilty of negligence and cannot recover. 10. That if the jury find that immediately under the grinder belt, the grinder was so close to the bottle shelf as to indicate that it was not intended that a workman at the grinder should stand there in performing his work, and that, nevertheless, he crowded himself into that place, and that otherwise he would not have been injured, then he cannot recover. The plaintiff asks us to say to you, and it is bearing on the action of Stoltz, I think it was, who was not an engineer, and who, when he heard of the accident, ran and stopped the engine, and in that way caused the injury: 1. That the concurring negligence of a fellow servant with the negligence of the master, will not relieve the master of liability. Answer: Affirmed.1 If Stoltz, directing our attention to that particular point, without any authority, without having any right to stop the engine, did that which was absolutely careless, and brought about this accident as he did, if he did it at all, without any apparent necessity, was guilty of negligence, he himself would be responsible, and not the employer, without the evidence shows that the defendant himself had been guilty of something that, concurrently with the improper act of Stoltz, brought about the accident. Whether it was Stoltz’s negligence or not, the plaintiff must show some negligence on the part of defendant, which contributed to the accident, to hold him liable. The first question, gentlemen, is how did the accident occur ? Was it from plaintiff climbing up on the grinder to put back tbe belt that bad fallen from tbe pulley ? That is the first question to be determined in this case. The theory of the defendant, upon that point, is that the plaintiff, being in this place, assuming for the present that it was a proper one where he had a right to be, and the belt having fallen, undertook to replace the belt, and in doing that got his knees upon the rim of the grinder, reached up his hand or arm in such a way that it got caught in the belt, and was in that way drawn on the grinder, and the injury sustained. If that is so, the plaintiff cannot recover in this case. It was something he had no business to do. It was an act of carelessness, and an act his duty did not require him to perform; and if that is the way the accident happened, he cannot recover. If he was not drawn upon the grinder and hurt by means of climbing up upon it in that way, as is alleged by the defendant, and, of course, denied by the plaintiff, the next question is, was he in a place where it was apparent from the arrangement of the machine and the bench, if there was a bench there, he should not have placed himself ? If he climbed up he cannot recover. If he did not climb up, was he in a place where he had no business to be? You will recollect on that subject there is no evidence indicating that he was put in any particular place. He was taken to the machine and directed to go to work. He had a right, in the absence of anything that would indicate the contrary, to go to work wherever it was most convenient. If the water was splashing around one place more than another and the one place seemed to be a better place than another, so far as his own convenience or comfort was concerned, he had a right to assume or take that position and go to work. [If there were nothing other than the belt running over his head to indicate danger, if there were nothing that would indicate it was not a proper place, not a place intended for him to go, or for a workman to be; if the surroundings indicated it was a place where he should not go, where it was apparent to a man of ordinary discretion, (and he is to be held to that,) he had no business to be, and he placed himself there, and the belt fell down upon him and drew him on to this grinder, he cannot recover, because that would be negligence. That is based on the assumption that, if he was put there without instructions, it would be a dangerous place to go, because in the absence of that he cannot be held negligent in doing that he had no warning against, either in words or in appearances, as to danger.] 8 Then I say, first, if the accident occurred by his climbing upon the grinder to put back the belt, as claimed by the defendant, the plaintiff cannot recover, because he was guilty of contributory negligence; second, if it did not occur in that way, but, as the plaintiff claims, by being drawn upon the grinder, then, if he was in a place where it was apparent from the arrangement of the machine and the bench he should not have placed himself, because dangerous, and the jury believe from the evidence, that if he had not been in such place the accident would not have occurred, he cannot recover; because in such case the law estops him from recovering on the ground of contributory negligence. The jury returned a verdict in favor of the plaintiff for $3,500. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error: 1. The answer to the plaintiff’s point.1 2. The portion of the charge embraced in [ ] 8 as qualifying the affirmance of defendant’s tenth point. Counsel cited: Maguire v. Railroad Co., 146 Mass. 379; Franklin v. Railroad Co., 37 Minn. 409 (5 Am. St. Rep. 856); Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700; Phila. Iron & S. Co. v. Davis, 111 Pa. 597. Counsel cited: Wheeler v. Manuf. Co., 135 Mass. 297-8; Lewis v. Seifert, 116 Pa. 647; Patterson v. Railroad Co., 76 Pa. 389; Shear. & Redf. on Neg., §187; McMahon v. Hen-ning, 1 McCrary 516; Fifield v. Railroad Co., 42 N. H. 225; Hough v. Railway Co., 100 U. S. 213; Cayzer v. Taylor, 10 Gray 274 ; Paulmien v. Railroad Co., 5 Vroom 151.
138 Pa. 338Sauer v. Mollinger (1890)
2 OF ALLEGHENY COUNTY. No. 137 October Term 1890, Sup. Ct.; court below, No. 285 January Term 1889, O. P. No. 2, in Equity.
138 Pa. 344McKenney v. Fawcett (1890)
138 Pa. 346Philadelphia Co. v. Park Bros. (1890)
138 Pa. 352Estate of Carr (1890)
138 Pa. 356Straub v. City of Pittsburgh (1890)
138 Pa. 365Mt. Pleasant Bor. v. Balt. & O. R. (1891)
[To be reported.] 1. A municipal claim for the paying of a sidewalk along the roadbed of a railroad company cannot be sustained, inasmuch as the paving cannot possibly confer a special benefit upon the property known as the right of way, and hence the whole theory which justifies such charge fails in this instance.* 2. This reason does not apply, however, to a railroad passenger station, nor to ground used as a freight station or a lumber yard; and, in the exercise of police powers conferred upon boroughs by the act of April 3, 1851, P. L. 320, ground used for such purposes and not forming part of the roadbed may be subjected to such charge. 3. A demand upon the property-owner that he construct the sidewalk, and the refusal or neglect by him so to do, are a prerequisite to the acquisition of a lien by the borough for the cost of a sidewalk constructed by it, but it is unnecessary to aver such demand and refusal in the claim filed: Connellsville Bor. v. Gilmore, lo W. N. 343, distinguished. 4. An application by the borough, however, for leave to amend such a claim by introducing an averment that such demand was made, and that the pavement was laid by the borough after the neglect of the property-owner to lay it within the time prescribed by the ordinance, should be granted: Philadelphia v. Stevenson, 132 Pa. 103. 5. The decisions upon questions arising out of street improvements in the city of Philadelphia, have little application to eases arising under the borough act of April 8,1851, P. L. 320, as that city has a complete system of its own, and, as was said in Philadelphia v. Richards, 124 Pa. 310, its authority in such matters is general and unlimited: Per PaxsoN, C. J.
138 Pa. 375Allegheny City v. West. Penna. R. (1891)
APPEAL BY PLAINTIFF FROM THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. No. 205 October Term 1889, Sup. Ct.; court below, No. Id January Term 1889, M. L. D., C. P. No. 2. On December 8, 1888, the city of Allegheny filed a municipal claim for §4,238.78, with interest from July 1, 1888, and attorney’s commissions of five per cent, against a certain lot of ground described as fronting 442 feet on the south side-of East Ohio street in said city, and running back therefrom 52 feet to South Canal street, with a further description of its location and boundaries; averring that the Western Pennsylvania Railroad Company was the owner or reputed owner of said lot, and that the sum aforesaid was an assessment thereon for the cost and expense of grading, paving and setting with curb stones a portion of the said street, the work having been done in pursuance of the act of April 1,1870, P. L. 751, and its supplements, and an ordinance of said city, within six months last past, etc. On January 7, 1889, a writ of scire facias upon said claim was served upon tbe station agent of defendant company at Allegheny, and on January 25, 1889, the defendant filed an affidavit setting forth a defence to the action as follows: “ That said lot of ground, described as aforesaid by metes and bounds, is a portion of the old Pennsylvania Canal constructed by the commonwealth of Pennsylvania and sold and conveyed to the Pennsylvania Railroad Company, and by the said Pennsylvania Railroad Company sold and conveyed to the Western Pennsylvania Railroad Company, by deeds duly recorded in the recorder’s office of Allegheny county; that the Western Pennsylvania Railroad Company, under and by virtue of its title to said old canal property, has constructed a line of railroad from the city of Allegheny to Freeport, on said canal, and the same has been in use and operation for a period of over twenty years; that the lot of ground, hereinbefore described, is at present used and occupied by said railroad company with two main tracks, known as an east-bound and a west-bound track ; and, in addition thereto, there is constructed over said lot, and now in use, two sidings extending for the whole distance and more than the distance of the 442 feet of ground against which said lien is filed; that there is no room left between the siding and the retaining wall, built by said city, for another track or siding; that there is also a third siding on the south of the main east track for the whole distance extending over the lot described as aforesaid; that the whole of said lot, being 52 feet or more in width, and in length a distance of 442 feet, is covered with the said tracks and sidings to such an extent as to be wholly occupied, leaving no additional room for other tracks.” The affidavit averred, further, that a plot attached thereto accurately represented the location of a retaining wall built by the city along the north side of said lot of ground, with the location of the various tracks upon said lot, and the streets, properties and buildings in the immediate neighborhood. From the plot, it appeared that the surface of the lot in question was at a lower level than the surface of the street; that the retaining wall at the southern edge of the street, referred to in the affidavit, was from twelve to fifteen feet high, and that a part of the ground on the northern side of the street consisted of building lots, occupied by houses which fronted on the street. A rule for judgment for want of a sufficient affidavit of de-fence having been discharged by the court, jEwhtg, P. J., filing no opinion, the plaintiff after bill sealed took this appeal, assigning the order of the court discharging said rule for error. 1. We do not question the propriety of the decision in Junction R,. Co. v. Philadelphia, 88 Pa. 424, holding the roadbed of a railroad not assessable for the improvment of a street on which it abutted. The act of April 21,1858, P. L. 385, under which the municipal claim was filed in that case, expressly exempted the superstructures of railroads in Philadelphia from such assessments, and the policy of the law, forbidding the assessment of one highway for the improvement of another, as declared in Philadelphia v. Railroad Co., 33 Pa. 41, gave added force to the legislative prohibition. But those authorities cannot affect the case in hand, because the legislature, by act of April 1, 1870, P. L. 751, clothed the city councils of Allegheny with ample power to assess railroad property with the expense of street improvements. 2. In § 6 of the act of 1870, the power is conferred to assess the cost of such improvements on the owners of property abutting on the street improved, by the foot-front rule; and § 18 provides that the term, owner, shall include corporations and associations having any title or interest in the properties assessed. Under § 20, when the defendant in a scire facias is a public corporation, so that the property assessed “ cannot for any reason in law be sold upon a judgment obtained on such scire facias, such lien shall be prosecuted to judgment on the scire facias; and the writ of execution to be issued on any such judgment shall be a writ of fieri facias, by virtue of which the sheriff may levy upon any personaUproperty, etc, of said corporation.”, These provisions were intended to alter, for the city of Allegheny, the law declared in Philadelphia v. Railroad Co., supra, and the legislature had power to make such property taxable in this manner: Welty’s Law of Assessments, § 180. 3. It is admitted that this property is owned in fee by the defendant, and that it is a part of the old Pennsylvania Canal. By § 2, act of April 27, 1864, P. L. 624, the authority was granted to abandon any portion of the canal. The defendant, then, may, if it chooses, abandon this ground for railroad purposes, and devote it to some other use. But, under § 18 of the act of April 1, 1870, it is immaterial whether it owns the iee or only an easement. The liability of this defendant for municipal assessments was decided by this court in West. Penoa. R. Co. v. Allegheny, 2 W. N. 229. Moreover, it is incompetent for the defendant to raise the question whether its property was benefited by the improvement for which the present lien was filed: Commonwealth v. Woods, 44 Pa. 113j Ballen-tine Dist. v. Evans, 61 Cal. 106. The councils of the city, in making this assessment, were the ministers of a sovereign state, imposing a tax by its supreme authority; and it is against the letter and policy of the law to permit the interposition of such a defence, especially when the amount of the tax is fixed by frontage. The defendant has alleged nothing to make the frontage rule unconstitutional as applied to this case. 1. This case is ruled by Philadelphia v. Railroad Co., BE Pa. 41; Junction R. Co. v. Philadelphia, 88 Pa. 424. Whatever force there may be in the appellant’s contention, based upon the provisions of the act of April 1, 1870, P. L. 751, as to railroad property abutting on streets, and used for stations, warehouses, etc., it fails in its application to a case like the present, where the property is merely the roadway. The present question was neither raised nor decided in West. Penna. R. Co. v. Allegheny, 2 W. N. 229. The railroad company, in that case, contended that the assessment of the benefits sought to be collected was illegal, because based upon an unlawful taking of its property in opening a street. The decision of this court was that the company was concluded by the previous proceedings in the Court of Quarter Sessions. The provisions of the act of April 27,1864, P. L. 624, referred to by appellant’s counsel, relate to the abandonment of the canal* as distinguished from its maintenance. They do not authorize the defendant bo abandon its railroad and to devote the land to other uses. At any rate, this has not been, and is not likely to be done. 2. Even if the act of 1870 did authorize the assessment of defendant’s roadway for tbe improvement of an adjacent public street, the foot-front assessment cannot be sustained. Such a method is sustained only as a substitute for actual assessment, where the properties are of one kind and not differing much in value: Hammett v. Philadelphia, 65 Pa. 146; Washington Ave., 69 Pa. 852; Seely v. Pittsburgh, 82 Pa. 364. And it appears, in the present case, that on the northern side of East Ohio street are city lots, probably substantially similar in character and value, while on the southern side is the defendant’s railroad, from twelve to fifteen feet below the grade of the street. There is no necessity for any access to the street from the railroad, but if there were, the difference in grades makes it impossible. The improvement of the street cannot possibly benefit the railroad; but even if there were a possibility of such benefits, the situation of the land and the nature of its use render it so totally unlike the property on the north side of the street, as to bring this ease within the decisions holding the frontage assessment inapplicable.
138 Pa. 383McCloskey v. Powell (1891)
[To be reported.] 1. One who, claiming and asserting ownership, sells certain specified timber trees standing upon land which in fact does not belong to him, and distinctly authorizes tlieir removal from the land, will be liable as a co-trespasser with his vendee for a subsequent cutting and removal of the timber by the latter, in consequence of such sale and authority, and without the consent of the real owner. 2. In such ease, the liability of the vendor of the timber will extend to the measure of damages prescribed by act of March 29, 1824, 8 Sm. L. 288, to wit, treble the value of the timber cut and removed, although he neither participated in person in such cutting and removal, nor employed the laborers who did it: McCloskey v. Powell, 123 Pa. 62, re-affirmed; but such statutory damages do not bear interest prior to their recovery.
138 Pa. 401Whitney v. City of Pittsburgh (1891)
[To be reported.] 1. The sections of the acts of June 14, 1887, P. L. 386, and May 16,1889, P. L. 228, relating to streets and sewers in cities of the second class, which provide for the creation and fix the powers and duties of a board of viewers to assess damages and benefits arising from the opening and improvement of streets and the construction of sewers in such cities, are unconstitutional and void: Wyoming St., Pittsburgh, 137 Pa. 494. 2. The board of viewers is an indispensable part of the system of assessments which said acts undertake to establish, and with the striking down of the board of viewers that system must fall as a whole; wherefore, all assessments of damages and benefits made under said acts are invalid, all work done or to be done thereunder must be paid for by the city, and all damages inflicted upon property owners thereby must be recovered from the city. 3. Even if the system of assessments provided for the city of Pittsburgh, by the act of January 6, 1864, P. L. 1131, and its supplements, be still in existence for any purpose, that system cannot be resorted to in a case where street improvements have been conducted in accordance with the provisions of the act of June 14, 1887, P. L. 386, and without a compliance with the conditions prescribed by the prior acts. 4. The fact that the act of June 14,1887, P. L. 395, “in relation to the government of cities of the second class,” fixed certain dates for the doing of things necessary to put the city government in operation, compliance with which direction was possible only in the city of Pittsburgh, the then sole city of that class, and made no corresponding provision for cities afterwards coming into it, does not render the act invalid as a local law.† 6. The declaration in §§ 1 and 9 of the act of June 14, 1887, P. L. 395, that the powers of the councils and of certain officers of cities of the second class shall remain “ as heretofore,” does not offend against § 6, article III., of the constitution, prohibiting the reviving, amending, extending or conferring of laws without a re-enactment at length, as it does not extend or confer powers, previously exercised in some other way, to the incumbents of newly created offices. 6. But §§ 5, 6 and 7, in so far as they confer statutory powers, previously exercised by officers whose offices are discontinued, upon heads of departments created by the act, are unconstitutional and invalid, and such heads of departments possess no powers except such as are conferred by §§ 15, 16 and 17; and § 18, authorizing the councils to create new departments in the city government and to define their powers, is also unconstitutional. 7. Suggestions as to other objectionable features in the street acts of June 14, 1887, P. L. 386, and May 16, 1889, P. L. 228, for cities of the second class, as to the appropriation of private property; the assessments for damages and benefits occasioned; the costs of the collection of benefit assessments, and the relations of cities to contractors and citizens, given at the request of counsel: Per Mr. Justice Williams.
138 Pa. 437Stewart v. Benninger (1891)
No. 46 October Term 1890, Sup. Ct.; court below, No. 174 January Term 1888, G. P. On December 27,1887, an appeal was entered by the defendant from tbe judgment of a justice of the peace, in an action brought by G. B. Stewart against Jacob Benninger, to recover damages for injuries committed to property of tbe plaintiff by trespassing swine belonging to tbe defendant. Issue.
138 Pa. 442Hoeveler v. Hune (1891)
APPEAL BY DEFENDANT PROM THE ORPHANS’ COHRT OE WEST-MORELAND county. No. 185 October Term 1890, Snp.
138 Pa. 447Commonwealth v. Brown (1891)
No. 200 October Term 1890, Sup. Ct.; court below, No. 76 May Term 1890, Q. S. On May 15,1890, the grand jury returned as a true bill an indictment charging J. Seward Brown with forcible detainer. The information upon which the indictment was based was sworn to on May 9, 1890, by Lizzie Ohr, the prosecutrix.
138 Pa. 453Graft v. Loucks (1891)
No. 92 October Term 1890, Sup. Ct.; court below, No. 67 Equity Docket, C. P. On March 21, 1876, Jacob L. Graft filed a bill in equity against Peter S. Loucks, praying for a decree directing the specific performance of an alleged parol agreement of tlie defendant to sell and convey to the plaintiff a certain lot of ground in Scottdale, Westmoreland county, containing one fourth of an acre.
138 Pa. 466Irwin v. Mattox (1891)
APPEAL BY DEPENDANT EROM THE COURT OE COMMON PLEAS OE 'WESTMORELAND COUNTY. No. 146 October Term 1890, Sup. Ct.; court below, No 227 February Term 1888, C. P. On December 20, 1888, Wilson Irwin brought replevin against Henry Mattox for seven cattle. The sheriff replevied the cattle and delivered them to the plaintiff, taking from him the usual bond. The defendant then pleaded non-cepit and property. At the trial on May 29,1890, the following facts were shown: In the spring of 1887, the plaintiff leased from Mrs. Mary Ewing a field containing about ten acres, part of a farm belonging to her, for the consideration of $20. The demise was a verbal one, and its terms were in dispute; the testimony for the plaintiff tending to prove that he was to have the land for the raising of two successive crops, while witnessess for the defendant testified that it was to be used for one crop only. After so leasing to the plaintiff, Mrs. Ewing leased her entire farm to the defendant, subject to the plaintiff’s rights. The field leased to the plaintiff had at one time been separated by a fence from the adjoining field, but the fence had been burned down prior to 1887 and was not rebuilt. The plaintiff planted a part of his field in corn, in the spring of 1887. Before its maturity, a part of the corn was trampled down by cattle of Alexander Ewing, and failed to come to perfection. When he came to gather his crop, he left upon the ground the corn which had been so injured, and afterwards turned into the field the cattle in controversy, that they might feed on the damaged part of the crop. The cattle having strayed across the unfenced boundary, between the field into which they were put by the plaintiff and the adjoining field in the possession of the defendant, which was in grass and kept for pasture, and having damaged the latter to some extent, the defendant took them up, while upon his pasture land, drove them to his barn-yard, penned them up therein, and notified the plaintiff that his cattle were in the barn-yard and that if he would pay for the damage done by them, he could have them again ; and afterwards told him that he could have them “if he would pay the costs at the squire’s office.” There was nothing in the testimony to explain the nature of the proceeding in which the costs thus referred to had been incurred. It was stated in the appellant’s paper-book, however, that a proceeding under the stray law of April 18,1807, 4 Sm. L. 473, had been commenced by the defendant before a justice of tlie peace, and that it was still pending on an appeal to tbe Court of Common Pleas, at the time of the trial of the present ease; but the facts so stated do not appear to have been shown upon the trial. The plaintiff refused to pay the damages and costs demanded by the defendant, and resorted to this action to recover his cattle. At the close of the testimony the court, Doty, P. J., charged the jury in part as follows: This proceeding, that the defendant followed, is what is known as the stray law, an old law that has been in force in this state for many years, passed by the legislature in 1807, and which authorized any person who found stray cattle, horses or swine upon his premises, to take up the same if the premises were improved and enclosed lands. Now, you will observe from the reading of the first section of this act of assembly, that it applies to only one kind of land; that is, improved and enclosed land. If land be unenclosed, if it has no fence surrounding it, and cattle are found upon it, they would not be regarded as trespassing under the provisions of this act of 1807. As early as 1700 there was an act of assembly passed in this commonwealth, that required all improved lands, all corn fields and grounds kept for enclosures, within the said province and counties annexed, to be well fenced with fences at least five feet high, of sufficient rails or logs and close at the bottom. The act of 1700, to which we referred, was repealed by a subsequent act of assembly passed upon April 4, 1889, P. L. 27; so that, as regards the fencing of lands, the law now is just as it was under the common law, and it does not require the owner of land to fence the same, under the provisions of this act of 1700 ; but any cattle that are found straying upon the premises would be regarded as trespassing upon the lands of another and could be seized under the provisions of this act of 1807. But the act repealing this act of 1700, was not passed for almost two years after the seizure of the cattle by the defendant in this action, so that this case falls within the provisions of the act of 1700. Now, in order to determine this question, with this brief •reference to the law regulating fences, it will be necessary for yon, under the testimony, in the first place to determine what was the fact with regard to this particular piece of property. The plaintiff alleges that he had rented it, as we understand him, for two years at a stipulated rent, or for two crops; he has given you his construction of that contract, and he has told you precisely, according to his recollection, what passed at the time. Upon the other hand, the defendant alleges that there was no such contract; that the lease extended but for one year, or for a single crop. In support of that contention, the defendant calls Alexander Ewing, if I remember correctly, and another witness, Mrs. Ewing, whose testimony you will recall in that connection. It is important, as the court regards it, for you to determine that as a preliminary fact, before you decide the other question of fact which will be submitted to you. If it be true that under this contract he had a right to turn his cattle in there, it would be an important question for you to decide, and perhaps would have justified fully the action which the plaintiff took; if, however, there was no right at all upon his part to turn these cattle in there, and he did turn his cattle into this pasture, and they then strayed upon the land of the other party, there may have been some justification for seizing them under this act of 1807, if we correctly understand the evidence, and there was very little, according to our recollection, upon that particular point. We understand that the who! e field, and if the court be not correct in this point, the jury has the right to correct us, under the evidence, the whole field was surrounded by a fence; into this field, piart of which was in com and claimed by the plaintiff, and the other part of which was in pasture and claimed by the defendant, those cattle were turned. Between the two parts of the field, perhaps the defendant claiming the whole thing under the terms of the contract, there was no fence at all. Wo think the evidence is undisputed upon that point. Now, if the plaintiff, under the terms of his contract, had a right to turn his cattle into the corn stocks, and there was no fence between that part of the land and the land claimed by the defendant, we would say to you, as a matter of law, that the defendant was not justified, under the provisions of the stray law, in seizing these cattle. If on the other hand this whole tract was surrounded by a fence, and the plaintiff had no right to put his cattle upon any portion of that land, then the field was enclosed, because the dominion of the defendant extended oyer the whole tract. You will determine, then, what was the contract.. Now, this as we understand it is the whole case. If this was enclosed and improved land and these cattle had been taken up as trespassing upon the property, the plaintiff would have no case here and no right of complaint. If, on the other hand, under the instructions we have already given you, the land was not enclosed, the defendant was not justified in séizing these cattle, and it would be no defence in this action of replevin. We try here, in this form of action, the right to take the cattle, the right to the possession of the cattle; and it would operate as no defence whatever, unless the defendant, under the instructions we have given you, has shown that he has complied fully and literally with the provisions of this stray law of 180T. The following points are submitted by defendant’s counsel: 1. The uncontradicted evidence being that the cattle were taken damage feasant, the action of replevin will not lie until the fees and charges provided by the act of 1807 are paid, and the verdict must be for the defendant. Answer: We cannot so instruct you. If the. cattle were taken upon enclosed apd improved land, under the instructions already contained in our general charge, your verdict ought to be for the defendant; otherwise, it is a question of fact for you to determine.* 2. The ’ undisputed evidence is, that the cattle described in the writ of replevin were seized by the defendant under the stray laws of the commonwealth of Pennsylvania, and were at the time the writ was served in the custody of the law; the action of replevin, therefore, does not lie and the verdict must be for the defendant. Answer: This point is refused.3 8. The uncontradicted evidence of the defendant is that the cattle, when taken under the provisions of the stray laws of this commonwealth, were upon his improved and enclosed lands, which cattle, when so taken, were in the custody of the law, and replevin will not lie and the verdict must be for the defendant. Answer: The facts stated in the point and upon which the legal proposition is based, we submit to you for your determination ; the point as a whole is refused.4 4. The evidence of the plaintiff is that he paid twenty dollars for two crops, which gave him no right of pasturage, and when he turned his cattle in to pasture, he was a trespasser on the rights of the defendant; and when the said cattle were taken up damage feasant, under the stray laws of the state, the action of replevin will not lie to recover possession thereof, until satisfaction be made or tendered, even if then, and your verdict must be for the defendant. Answer: This proposition as a whole cannot be affirmed.5 —The jury found a verdict in favor of the plaintiff for the property in dispute, with one dollar damages. A rule for a new trial having been discharged, judgment was entered on the verdict; whereupon the defendant took this appeal, assigning for error: 1. “ The general doctrine of the charge.” 2-5. The answers to defendant’s points.8 *.° 5 1. This action of replevin cannot be sustained, because the plaintiff was bound to follow the special remedy given to him by the act of April 13, 1807, 4 Sm. L. 473, under which these cattle were taken damage feasant: § 13, act of March 21,1806, 4 Sm. L. 332; .Phelps’s App., 98 Pa. 549; Beltzhoover Bor. v. Gollings, 101 Pa. 293 ; Hoffman v. Commonwealth, 123 Pa. 77. If this were not so, then we may have the anomaly of two different tribunals trying the same case at the same time, and perhaps arriving at different results. In this case, this dif ñculty has arisen, a proceeding under the act of 1807 having been commenced before a justice of the peace, and an appeal therefrom taken by the plaintiff, Irwin, being still pending in the Court of Common Pleas. 2. If the plaintiff was a cropper, as he characterized himself, our position is that, even giving him the fullest benefit of his assertion that he had the right to take off two distinct crops, his rights in the year 1887 ended totally and absolutely when he had cut off the spring crop of that year, and that he was a trespasser every time be set foot on that field for any other purpose. The right to take a crop from a field does not carry with it a right of pasturage, any more than the privilege of cutting trees from a forest would do so, and in pasturing his cattle in the field he was a trespasser : Reiff v. Reiff, 64 Pa. 135; Bell v. Railroad Co., 25 Pa. 181. The defendant’s fourth point was neither affirmed nor denied, and it was error not to answer it: Swank v. Phillips, 113 Pa. 489; Tyrone M. & M. Co. v. Cross, 128 Pa. 636. 1. On a fair construction of the contract between Mrs. Ewing and the plaintiff, he was a renter, not a cropper. He was not restricted by his lease to any specified mode of removing his crop, and, therefore, having paid a money rent for the field, and being entitled to the entire crop, he had a right to remove it as he saw fit, and was justified in doing so by means of his cattle. It is conceded that there was no fence between the fields of the plaintiff and the defendant, and the jury have found that the defendant’s land was not enclosed. Therefore, the provisions of the act of April 13, 1807, 4 Sm. L. 473, do not apply: Gregg v. Gregg, 55 Pa. 227; Race v. Snyder, 10 Phila. 534. 2. Accordingly, the plaintiff could sue out this writ of re-plevin and recover his cattle wrongfully detained, as the defendant, failing to make out a case under the act of 1807, was a trespasser ab initio in seizing the cattle: Fitzwater v. Stout, 16 Pa. 22; Miller v. Warden, 111 Pa. 308; Harlan v. Harlan, 15 Pa. 513. Moreover, there is nothing on the record to show that the cattle were ever legally distrained, or what, if any, proceedings were had before the magistrate. The defendant’s fourth point was in substance refused in the general charge. But, independent of that, the point was so constructed that it could not be affirmed, and the answer made to it was a proper one.
138 Pa. 474Bank v. Foreman (1891)
No. 169 October Term 1890, Sup. Ct.; court below, No. 3 December Term 1889, C. P. On September 28, 1889, tbe German National Bank of Allegheny brought assumpsit against N. Smith Foreman, as an in-dorser of a promissory note for $1,126.68, dated March 27,1889, at four months, drawn to the order of the defendant, and indorsed by the defendant and by Jacob Kepler. The defendant pleaded non-assumpsit, and payment with leave.
138 Pa. 481Collins v. Houston (1891)
(a) Plaintiffs brought replevin, for timber in the possession of the defendant as the assignee for creditors of Wilkins, to whom the plaintiff's had sold it before the assignment, with the condition, as alleged, that the title was not to pass till the purchase money was paid. Under the plea of non-cepit and property, the defendant asserted that the sale was absolute : 1. In such case, the plaintiffs were entitled to and received the proper instruction that, as the defendant was the direct representative of Wilkins, his assignor, standing in his shoos, as between the plaintiffs and the defendant and creditors of the assignor claiming through the assignee, the conditional sale if found to be as claimed was valid. 2. There being evidence that, shortly after the time of the sale alleged, the vendee removed the plaintiffs1 lines from the timber, substituted his own, and tabbed and left the plaintiffs’ lines at the railroad station for shipment to them, it was not error to submit to the jury whether there was notice to the plaintiffs that their timber had been appropriated by the vendee to liis own uses. 3. The first agreement as to the sale being by parol, and the purchase money ascertained by a subsequent measurement, when a memorandum and a receipt in writing were made and passed, indicating the terms of sale, it was correctly submitted to the jury to determine on all the evidence in the cause, verbal and written, what the real contract between the parties was. 4. There being evidence that the plaintiffs, present at a creditors’ meeting before which was laid the inventory of the assigned estate including the timber, did not then assert their continuing title, the court properly refused to instruct that there was an estoppel, but left to the jury to say how far the facts tended to rebut the plaintiffs’ allegations. 5. The timber in dispute having been delivered to the plaintiffs under the writ, it was not error to instruct the jury that if they found for the defendant, lie was entitled to a return of the property replevied and damages for its detention, the measure of which would be the interest on the value of the timber while it was out of his possession. 6. Where an objection is made to an offer oE the testimony of a witness, and the offer is refused by the court, but the witness immediately thereafter is examined, and testifies without limitation to everything relating to the subject upon which the offer was made, the refusal of the offer works no harm, aud an assignment of error thereto is without merit.
138 Pa. 494Fidelity Etc. Co. v. West. Penn. Etc. R. (1891)
[To be reported.] 1. The power of a railroad company, incorporated under the act of April 4, 1868, P. L. 62, to borrow money upon a mortgage of its property and franchises for the construction and equipment of its road, is limited in the clearest manner to twice the amount paid up of its capital stock: Section 8 of said act. 2. Such a mortgage, given for a greater amount than that specified, is unauthorized, and might be held inoperative and void as to parties having the right to complain; but, as between bona fide holders of the mortgage bonds and the company, the mortgage is a lien upon the mortgaged property: Reed’s App., 122 Pa. 565. 8. Subsequent creditors of the company, who became such with notice of the mortgage while the negotiation of the bonds was in progress, occupy no better position than the company itself, and cannot set up its fraud in exceeding the authority conferred, as a defence against the victims of that fraud. 4. The provision of § 7, article XVI. of the constitution, prohibiting the fictitious increase of corporate indebtedness, will not apply to the sale of the mortgage bonds of a railroad company, for which it receives the money from innocent purchasers at par, for construction and equipment ; the debt is not fictitious, though the securities may turn out to be largely so. 5. When interest coupons of mortgage bonds have been presented and paid at the place of payment with money furnished by a third party, a private arrangement between such third party and the mortgagor, that the transaction shall be treated as a purchase of the coupons by the former, is not enforceable against the bondholders.
138 Pa. 506Ellis v. Lake Shore Etc. R. (1891)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF MERCER COUNTY. No. 131 October Term 1890, Sup. Ct.; court below, No. 185 January Term 1890, C. P. On December 24, 1889, H. W. Ellis brought trespass against the Lake Shore & Michigan Southern Railroad Company, operating the Jamestown & Franklin railroad, for personal injuries to the plaintiff alleged to be the consequence of negligence on the part of the defendant company. The defendant’s plea was not guilty. At the trial on June 12, 1890, the following facts were shown: On the afternoon of December 21, 1889, about half past three o’clock, the plaintiff was driving a team of horses with an empty wagon, along a public road in the outskirts of the borough of Stoneboro in Mercer county. His son Clinton, aged about seventeen years, was in advance on foot, driving a yoke of oxen. Another son, Frederick, between twelve and thirteen years of age, was in the wagon with the plaintiff. The public road referred to was crossed by the New Castle & Franklin and the Jamestown & Franklin railroads, the latter of which was operated by the defendant company. These two railroads were about two hundred feet apart, but the distance, by way of the public road, between their respective intersections therewith, was about three hundred feet. The point where the public highway crossed the defendant’s railroad was within the corporate limits of the borough of Stoneboro, but was outside of the built-up portion thereof, and was a little over a mile west of the passenger station of the defendant company in the town. From 400 to 500 feet west of that crossing, another public road crossed the defendant’s railroad. There was a road crossing, also, to the east of that first mentioned, but how far away from it did not clearly appear. While driving across the defendant’s track, the plaintiff’s wagon was struck by a special train, running west, which consisted of a locomotive, tender and one passenger coach, and severe, probably permanent injuries were inflicted upon the person of the plaintiff thereby. Testifying on his own behalf, the plaintiff narrated the circumstances as follows : “ Before I crossed either the New Castle & Franklin or Lake Shore & Michigan Southern railroad I stopped on a bridge from which I had full view of both roads]5 and listened and looked for trains. This was my custom.After we crossed the New Castle & Franklin railroad, I proceeded on to cross the Jamestown & Franklin railroad, or Lake Shore railroad. As I drove along there I was standing up back of the seat. As 1 drove across between the New Castle & Franklin and Lake Shore railroads I think I had full view of the Lake Shore road toward Stoneboro the most of the distance. I neither heard nor saw any train on the Lake Shore road; everything was perfectly still. Before I undertook to cross the Lake Shore road, I stopped and looked and listened for trains on it, because there was considerable timber piled up about there. At the point where I stopped, I think it was about two rods from the Lake Shore road; it might have been a little more or less. At that time I neither heard nor saw any trains on the road. I did not see nor hear any. I first heard and saw a train after I drove upon the track, and I did not hear it then, as it was running very still. It was not more than a second from the time I saw it until I was struck, and I did not know anything for some time after that. I had no notice nor warning before I was struck, that the train was coming.After I stopped between the two railroads and started on, I drove toward and onto the Lake Shore track on a walk, a slow walk. I think there were some timbers along down the track on the south side of the track. I could not be positive whether I could see down the track on account of the timber, or not. There were no houses in the neighborhood except O’Neal’s and that is near the track.Where I stopped first, before I crossed the New Castle & Franklin railroad, I had a full view of the Lake Shore road down toward Stoneboro. I neither saw nor heard any trains coming on either roads.” The plaintiff was corroborated by the testimony of his two sons. Witnesses for the defendant testified that the sons, soon after the accident, made declarations to the effect that their father attempted to drive across the track with knowledge that the train was approaching, having been warned thereof by Clinton. The sons, testifying upon the trial, denied the making of such declarations. The testimony was conflicting as to whether, at the place where the plaintiff stopped between the two railroads, an unobstructed view of the defendant’s track to the east could be had, that of the plaintiff tending to show that while the view was obstructed to some extent by piles of lumber placed along the track, a person standing up in a wagon would be able to see an approaching train; and» the testimony of the defendant tending to show that the obstructions would prevent a person from seeing a train far enough away to receive in this manner proper warning of its approach. The plaintiff’s testimony tended to show that the train in question was running at an unusually rapid rate, so as to attract on this account the attention of several persons who observed it; one of the plaintiff’s witnesses fixing the rate at which it was going, in bis opinion, at forty-five miles per hour, and another giving data from which it could be inferred that the rate was about sixty miles an hour ; while the testimony for the defendant tended to show that the train was running, just before the plaintiff drove upon the track, at the rate of but twenty to twenty-five miles an hour; that by promptly applying the air brakes, reversing the engine and sanding the rails, its speed was reduced to about eighteen miles per hour when it struck the plaintiff, and that the accident occurred just five minutes after the train left the station at Stoneboro. Witnesses for the plaintiff testified to the effect that no signal of the approach of the train to this crossing was given, until after the plaintiff’s team was upon the track, when the stock alarm, consisting of a succession of short quick blasts of the whistle, was sounded. Witnesses for the defendant testified that the usual crossing signals were given at the regular place. By testimony for the plaintiff, it was shown that the crossing in question was a very dangerous one. It appeared, further, that the plaintiff was acquainted with its character, as he lived only a half a mile north of it, and had often passed over it. At the close of the testimony, the court, Mehabd, P. J., charged the jury in part as follows: It is the duty, then, of any one who approaches a railroad crossing to stop and look and listen, in order to determine whether or not there be a train. This stop, this investigation, must be made at a point which will give information upon that subject; and, if one approaching a railroad crossing fails to stop and look and listen and properly investigate the question whether or not there be a train approaching, that one is guilty of negligence; and if he go upon the railroad track and an accident occur, resulting in injury to him, he cannot recover for it, even though that accident be brought about in part by the negligence of the railroad company itself. It is essential, then, to a plaintiff who seeks to recover in a case of this kind that his case does not disclose negligence upon his part, because if there is any degree of negligence upon the part of the plaintiff that is an absolute barrier to his recovery, even though he make out the clearest case of negligence on the part of the railroad company. But, if the plaintiff establishes the fact that there is negligence upon the part of the railroad company; that this negligence was the direct cause of damage to himself, and the case does not show that the plaintiff himself was negligent, in any degree contributing to the injury, then the plaintiff is entitled to recover for whatever injury he sustained because of the negligence of the defendant. Therefore, gentlemen of the jury, we say to you in this case, that if the evidence discloses that the plaintiff has been guilty of negligence in the occurrence which is the subject of this suit, contributing in any degree to the injury of which he complains, he cannot recover here. But, if the evidence does not so show, and it does affirmatively appear by the weight of the evidence, that the defendant company was guilty of negligence at that occurrence, and that negligence resulted in damage to the plaintiff, he is entitled to compensation for whatever damage he thus sustained. This is the general law as to the rights and duties and liabilities of those using a road crossing and railroad, and of a railroad approaching a road crossing. Now, while the law requires of one approaching a railroad crossing the use of due care to find out whether or not a train is approaching, so as to avoid a collision with the railroad train, it also requires of the railroad company that it shall likewise use due diligence in approaching the crossing of the highway. Both those using the highway as well as those using the railroad have rights, and these rights must be regarded by each with respect to the other. It is the duty of a railroad company, as the train approaches the crossing of a highway, to give proper warning of that approach. In thickly populated districts the duty goes to the extent of requiring the railroad company to put flagmen in the way, or even gates, for the purpose of preventing crossing while the train is in that vicinity. But in districts which are not thickly populated, that is not required of railroads, but then they are required to give proper warning by such signals as they can make, so as to notify pen-sons approaching the railroad crossing of the approach of the train and thereby prevent collision. These remarks apply to crossings generally. [Now, you are to inquire what was the character of this crossing. What was its situation ? What were its surroundings ? Because, the duties of the parties, plaintiff and defendant, are measured in a degree by that situation, by those circumstances. The plaintiff, upon his part, would be required to use greater care in approaching a crossing where the view was obstructed, than he would be required to use where the view was not obstructed. The defendant, upon its part, would likewise be required to use greater care in approaching such a crossing, than approaching one where the view' was plain for a great distance. That is to say, if the view along this road was obstructed in a degree, that obstruction would be a circumstance which ought to be present in the mind of both plaintiff and defendant as determining how much more care they would take than if they could both see up and down the track and through the surrounding country without obstruction.] 8 . . . . Now, you are to say whether the ^plaintiff exercised such care and diligence in crossing that railroad track as the circumstances and surroundings of that crossing required of him as a man of prudence. If he did not, then if that negligence contributed in any degree to his injury, he cannot recover in this case," notwithstanding the fact that he did stop and look and. listen. But if you are satisfied that the plaintiff did use due care and diligence making that crossing, used such care as a man of ordinary prudence would use under those circumstances, and that he did stop and look and listen at the point where he crossed, then he would not be prevented from recovering in this case on the ground of negligence, and you would further inquire whether or not the defendant has been guilty of negligence which was the cause of the plaintiff’s injury. [Now, as I have said, the defendant must have regard to the particular circumstances and situation of that particular crossing as well as the plaintiff. The defendant should also have regard to the proximity of other road crossings to that crossing, if there were other road crossings in that vicinity. The defendant should also have regard to the rate of speed at which such a train was moving, and also to the fact that this was not a regular train, but a special train, which is a conceded fact in this case. The degree of care which the law requires of the defendant corresponds to the surroundings of the crossing and to all the circumstances of the case, and it would require of the defendant to give warning by signals, whistling and ringing the bell long enough to give a proper warning of the train’s approach. The amount of warning and the amount of care which is required of the defendant in this case corresponds and is proportionate to the danger of the crossing, as well as the speed at which the train was moving and the proximity of other crossings, and the fact that it was a special train.] 3 . . . . It is alleged in this case, that the defendant was negligent by failing to signal, either by whistling or ringing the bell, or both, as this train approached this crossing; and, second, that this train was approaching this crossing at such an extraordinary rate of speed that, even if they did whistle or ring the bell, nevertheless it-was negligent to approach this crossing at that rate of speed, and that this accident is the result of the combined acts; that is, the failing to whistle and ring and also of the high rate of speed at which this train was moving. [Now, gentlemen of the jury, you are to take the testimony of the witnesses upon the part of the plaintiff and the witnesses on the part of the defendant, and you are to say from that evidence what was the rate of speed at which that train" was moving.] 3 On the part of the defendant, it is alleged and claimed that the evidence shows that this train was not passing at the rate of more than twenty to twenty-five miles an hour at any point between Stoneboro and the place of accident. [On the part of the plaintiff it is claimed that the evidence shows that this train was passing at from the rate of from forty-five to sixty miles an hour. You are to take the evidence in this case, I say, upon the part of the plaintiff and upon the part of the defendant, and you are to say what is the truth. Is it true that this train was passing at an extraordinary rate of speed, of from forty-five to sixty miles an hour; or, is it true that it was passing only at the moderate rate of speed of from twenty to twenty-five miles an hour, for that is an important question in this case ? ] 8 Did the defendant blow the Avhistle and ring the bell at a proper distance, and for a long enough time to give warning to Ellis at this crossing of the approach of this special train, regard being had to the rate of speed at which the train was approaching the crossing ?. [Now, if the plaintiff used proper care in approaching this crossing, and if, on the other hand, the defendant’s train ap-preached this crossing without whistling or ringing the bell and at an unusually high rate of speed, you will say whether or not that was such care as the defendant should have exercised in approaching a crossing of this kind. If it was not, then your verdict will be in favor of the plaintiff. If the defendant did ring the bell and did blow the whistle, but was approaching this crossing at a high rate of speed, .at an extraordinary rate of speed, if that rate of speed was from forty-five to sixty miles an hour, as it is claimed on the part of the plaintiff, then you will say whether or not it was negligence on the part of the defendant to approach this crossing at such a rate of speed, having regard to the situation and the surroundings of that particular crossing. If you find that the train did approach this crossing at snch an extraordinary high rate of speed, and you are further satisfied that it was negligence and the want of due care to approach this particular crossing at such rate of speed, and further find that the accident to this plaintiff was the result of such negligence, then you would find in favor of the plaintiff.] 8 But, on the other hand, if you find that defendant was not guilty or negligent in this matter, your verdict would be, of course, in favor of the defendant. You must also consider the amount of credibility which each of tbe witnesses is entitled to. You are to have regard to tbeir fairness and frankness, or the lack of sucb fairness and frankness upon the witness stand as they appeared before you. You must have regard to their interest in the result of this ease, or to the bias they may have, if any such was shown to you, when upon the witness stand. The plaintiff in this case is, of course, an interested witness. It is a matter of moment to him. It is a matter of pecuniary interest to him. You are to say whether or not the plaintiff, notwithstanding that pecuniary interest, has told you a frank, and plain, and truthful story. The plaintiff’s sons have no direct pecuniary interest in this suit, but they are the plaintiff’s sons, and from that we may naturally suppose that they have a bias in this case; that is, a partisan interest in favor of their father. That weighs against their credibility. You will not understand me to say it destroys it. You are to consider that fact in weighing their evidence, and say whether, notwithstanding such inferest or bias, they have resisted any such temptation to tell what is not true and bave told you a plain and truthful story. The other witnesses upon the part of the plaintiff have not disclosed any interest in this case, unless you have discovered upon the part of any of them a partisan interest. They have no direct pecuniary interest in the case. [On the part of the defendant, it is in evidence that William Parker and John M. Woodburn were the engineer and fireman on this train. They have an interest in this case, for if there was negligence in this matter it was their negligence; and, while they are not hurt by the verdict in this case, nevertheless they have a responsibility that weighs against their credibility, and to what extent it is for you to say, in view of all their testimony as it has been shown. The other witnesses who were called upon the part of the defendant are the employees of the defendant company. Whether or not that fact has influenced them in favor of the defendant and against the plaintiff, whether or not they have resisted any partisan interest which you may think would grow out of such relationship, and have told to you the plain and frank truth in this case, is for you, gentlemen of the jury, to determine. You are to judge, and you only are the judges of the credibility of these witnesses, and you are not to be forgetful of the fact that you are to weigh their credibility in determining the value of their testimony.] 0. The defendant in this case has submitted certain points for instruction: 1. If the jury find from the evidence in this case that the engineer of the defendant company sounded the whistle at a proper distance, and rang the bell as they approached the road crossing, then the defendants have done their whole duty, and are guilty of no negligence, and there can be no recovery in this case. Answer: We cannot say to you as a matter of law that the whole duty of the defendant was discharged if the whistle was blown on this train and the bell rung as this train approached the crossing where the accident occurred. There is evidence that this train was‘running at an extraordinary rate of speed; it is claimed as fast as from forty-five to sixty miles an hour. It is also in evidence 'that there was another crossing a short distance west of the one where the accident occurred and another somewhat further distant east of this. We therefore submit it to you to say whether this train was moving at the high rate of speed claimed by the plaintiff, and if so, whether that was a negligent rate of speed, and whether the injury to the plaintiff was the natural result of such negligent rate of speed after the plaintiff had exercised all due care on his own part; if so, you should iind in favor of the plaintiff. But otherwise, if the whistle was blown and the bell was rung, you should find for the defendant. But if you find that the whistle was so blown and the bell so rung, you would inquire whether that is reconcilable with the theory that the plaintiff did stop and look and listen at the proper place as he approached this crossing.1 2. If the jury find that there were obstructions in the way which prevented the plaintiff from seeing down the track as he approached the same, and from the point where he testifies he stopped, then it was his duty as a prudent man not only to look and listen, but also to get out of his wagon and go upon the track and look for approaching trains, and if necessary, to lead his horses across. Anything short of this would be contributory negligence on his part, and there could be no recovery in this case. Answer: The evidence on the part of the plaintiff tends to show that the plaintiff had a good view of this road from his W'agon up and down at the point where he first stopped, and between that and the point where the next stop was made, as well as at the point where he stopped the last time. We are not warranted in affirming this second proposition of law. We refuse it; leaving it to the jury to say whether the plaintiff did stop and look and listen at a place where he could see up and down the track, and whether he used such care and diligence in approaching that crossing as ought to be used by a man of ordinary care and prudence.1 B. It is not negligence for a railroad company to run its trains over a public crossing in the country at the rate of thirty miles an hour. The law fixes no rate at which they should run except in towns and thickly populated places. And this is a question entirely for the court and not to be submitted to the jury- Answer: This we affirm as a proposition of law; but in ah ■firming it we call your attention to tbe answer wbicb was made to the first point in this case. While the law does not fix any rate of speed, particularly, at which a train may pass along defendant’s track, it does require that those in charge of the train shall use proper care and diligence, according to the circumstances, as they approach any crossing. The amount of care which they are to use is proportionate to the particular circumstances of a particular crossing. Thus explained this point is substantially affirmed.1 The counsel call my attention to the fact that I stated to you that the witnessess on the part of the plaintiff testified that this train was moving at the rate of from forty-five to sixt}1-miles an hour. I did not intend to state to you that the wit-nessess so testified in terms. Mr. McFarland testified that he estimated the rate at which this train was moving to be forty-five miles an hour when he saw it. But I say that the plaintiff claims, from all the evidence in the case on his part, touching the .rate of speed at which the train was moving, that the evidence shows that it was moving from forty-five to sixty miles an hour. It is for you to say whether this claim is supported by the data of the plaintiff’s case, whether that be the truth in view of all the evidence in the case both for the plaintiff and the defendant. .. The jury returned a verdict in favor of the plaintiff for $7,900, and upon an inquiry from the court they found specially “ that no signal was given until just before the accident, when the stock alarm was given.” This special finding was thereupon embodied in the verdict as recorded. The defendant moved for a new trial for reasons in substance as follows : (a) that the court committed certain errors in the charge to the jury ; (5) that the verdict was excessive and unwarranted by the evidence ; and (e) that the court erred “ in taking from the jury, orally, the evidence upon which they found their verdict,” and (d) that the verdict should have been recorded as originally rendered. By the court: Motion refused.3 Judgment having been entered, the defendant took this appeal, assigning for error: 1. The answers to tbe defendant’s points.1* 2. The parts of the charge embraced in [ ] 3. The refusal of the defendant’s motion.3 1. We conceded upon the trial that the fact of the plaintiff’s stopping, looking and listening before attempting to cross the track, was proved and was not contradicted. Yet the court magnified it to the jury, and left the impression on their minds, by inference, that a reciprocal duty to stop the train, before reaching a dangerous crossing, rested on the defendant. This was the tendency of the charge. Our points should have had direct answers. The first point did not ask the court to say that the fact of sounding the alarm whistle was proved, but simply to declare the law, unqualifiedly, upon the point as put. The second point was simply a statement of the law as declared by this and every other court in the union, before which the question has been raised: Penna. R. Co. v. Beale, 73 Pa. 504; Schoefert v. Railway Co., 62 Towa 624; Harris v. Railroad Co., 41 Iowa 227 ; Benton v. Railroad Co., 42 Iowa 142; Haas v. Railroad Co., 47 Mich. 407 ; Chaffee v. Railroad, 104 Mass. 108 ; Lake Shore R. Co. v. Hart, 87 Ill. 529; Lake Shore R. Co. v. Miller, 25 Mich. 274; Central R. Co. v. Feller, 84 Pa. 226. 2. Upon the testimony of the plaintiff, three distinct facts were proved, which were undisputed; (a) that this crossing was a place of known danger; (5) that it was well known as such to the plaintiff; and (a) that he attempted to cross the track without knowing whether a train was approaching or not, and without even taking the pains to know whether or not he could see down the track himself when he last stopped. Upon these facts, the court should have instructed the jury that there could be no recovery in the case. The answer to the defendant’s third point was vague and uncertain, and not responsive to the point as put. We are unable to see what bearing the proximity of other crossings bad upon the case or upon the point. And there is no law regulating the speed of trains, except in thickly populated places, under municipal regulations ; if there was, it would form no excuse for want of proper care upon the part of the person injured at a crossing: Michigan C. R. Go. v. Campau, 85 Mich. 469; Grand Rapids R. Co. v. Huntley, 88 Mich. ,537 (31 Am. Rep. 321) ; Pzola v. Railroad Co., 54 Mich. 273; Chicago R. Co. v. Jacobs, 63 Ill. 179; Chicago R. Co. v. Lee, 68 Ill. 582; Grove v. Railroad Co., 67 Me. 100; McKonkey v. Corning, 40 Iowa 205; Scho-field v. Railway Co., 8 Fed. R. 488; Reading R. Co. v. Ritchie, 102 Pa. 425. 3. Conceding, for the sake of the argument, that this was a special train running at a high rate of speed, and that no warning of its approach was given ; still there could be no recovery if the plaintiff was guilty of contributory negligence: Schofield v. Railway Co., 114 U. S. 615 ; Cleveland Ry. Co. v. Elliott, 28 Ohio 340 (14 Am. Ry. Rep. 124) ; Penna. R. Co. v. Righter, 42 N. J. 180; Haas v. Railroad Co., 47 Mich. 407; Williams v. Railroad Co., 64 Wis. 1. But the defendant cannot be held to a stricter account in running a special train than in the case of any other. The same uniform rule must apply to the running of all trains. The judge was in error in' giving force to the fact that this was a special train, and demanding special •care from the company. Then he coupled with this, in such a way as to give it with the jury the force of a fact proved, the statement that the train was running at the rate of from forty to sixty miles an hour, whereas there is no evidence to support it. And the general tenor of the charge was misleading. The comments upon the credibility of the engineer and fireman, who were entirely disinterested, could have no other effect upon the average juror than to prejudice his mind against the witnesses and the defendant’s case. The plaintiff asked for no specific instructions upon the matter of speed, disconnected from the more important question as to whether any signal was given of the approach of the train. The defendant, however, boldly asked the court, in its second point, to say, in effect, tbat no attainable speed in approaching the crossing would constitute negligence. This proposition is not sustained by the decisions cited in support of it. On the contrary, the facts and circumstances of each particular case must govern the question of speed: Reeves v. Railroad Co., 30 Pa. 454; Reading R. Co. v. Ritchie, 102 Pa. 425 ; Penna. R. Co. v. Ogier, 35 Pa. 60; Lehigh V. R. Co. v. Brandtmaier, 113 Pa. 610. While, if the plaintiff had entirely neglected to stop, look and listen, the court could declare the omission to be negligence, as matter of law, yet, as it was shown and conceded that this duty was performed by him, the questions whether in view of all the circumstances it was sufficiently performed, and whether there was anything more incumbent upon him, were to be passed on by the jury: Arnold v. Railroad Co., 115 Pa. 135; Penna. R. Co. v. Garvey, 108 Pa. 369; Lake Shore Ry. Co. v. Frantz, 127 Pa. 297; McNeal v. Railroad Co., 131 Pa. 184; Penna. R. Co. v. Ogier, 35 Pa. 60; Penna. R. Co. v. Ackerman, 74 Pa. 265. This court has never yet held that a traveler is bound, as a matter of law, to get out of his conveyance and go upon the track to look for trains. Penna. R. Co. v. Beale, 73 Pa. 504, and Central R. Co. v. Feller, 84 Pa. 226, were not ruled on any such principle.
138 Pa. 523Frick v. County of Mercer (1891)
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF MERCER COUNTY. No. 202 October Term 1890, Sup. Ct.; court below, No. 78 March Term 1888, C. P. Ou March 2,1888, Benjamin Frick brought assumpsit against the county of Mercer, filing a statement of claim upon three bonds of the county issued for stock of the Pittsburgh & Erie Railroad Company. An affidavit of defence was filed, in which it was averred “ that the issuance of the bonds upon which said claim is founded, was without authority of law and therefore void, and created no legal liability on the county to pay the same or any part thereof.” The case was then put at issue, under the pleas of non-assumpsit and the statute of limitations. At the trial on November 21, 1889, the plaintiff put in evidence the act of April 21,1846, P. L. (1850) 812, incorporating-the Pittsburgh & Erie Railroad company; act supplementary of May 4, 1852, P. L. 605; and nest a paper filed at No. 19 May Term 1852, Court of Quarter Sessions, as follows: “Recommendation of the grand inquest of Mercer county to the commissioners, to subscribe stock to the Pittsburgh & Erie Railroad Company. “ The grand inquest of the Commonwealth of Pennsylvania inquiring in and for the body of Mercer county at the May session, 1852, having taken into consideration the importance of the construction of the Pittsburgh & Erie Railroad to the several counties and the country through which it will pass, also the tendency to advance the value of property and develop the various resources of the country, would recommend that the commissioners of Mercer county subscribe to the capital stock of the Pittsburgh & Erie Railroad to such amount and under such restrictions as may be required by the act of assembly authorizing them to subscribe stock to said road, to an amount not exceeding $150,000. C. G. Cabveb, Foreman.” The plaintiff then followed with evidence from the minutes of the board of commissioners of Mercer county, showing, in substance, that on J une 23, 1852, the commissioners appointed three persons “ as managers or directors of the stock subscribed by the county of Mercer to the Pittsburgh & Erie Railroad Co.; ” that on September 22, 1852, one of the commissioners attended, directors’ meeting in New Castle; tbat on September 5, 1853, the commissioners all met, and in pursuance of the resolution of June 23, 1852, commissioners Pennock and Duncan signed bonds to the Pittsburgh & Erie Railroad amounting to $150,000, and commissioner Cunningham, refusing to sign the bonds, had his reasons entered of record; that on October 8, 1853, the commissioners recalled the bonds issued on September 5th, and issued in their stead other bonds in favor of the company of smaller denominations; that the former bonds were then destroyed and the bonds last issued, Cunningham still refusing to sign them, were delivered to Samuel Goodwin, one of the directors of the Pittsburgh & Erie Railroad Co.; that on February 6, 1855, the commissioners appointed new directors for the stock of the county in the railroad company, and that on April 2, 1855, the directors of the county stock made a report showing abstracts of the proceedings of the company at its last two meetings. After proving the signatures of commissioners Pennock and Duncan thereto, the plaintiff put in evidence bonds 101, 102, 185, which were of the form following: “$100. UNITED States oe America. $100 “ County of Mercer, Pennsylvania, No. 185. “ This bond issued for stock in the Pittsburgh & Erie Railroad Company, payable in twenty years from date at the city of New York. The faith, credit, and property of the county to the Pittsburgh & Erie Railroad Company pledged to the payment of the principal and interest. “ Know all men by these presents, that the county of Mercer, of the Commonwealth of Pennsylvania, is indebted to the Pittsburgh & Erie Railroad Company in the full and just sum of one hundred dollars, which sum of money said county agrees and promises to pay twenty years after date hereof to the said Pittsburgh & Erie Railroad Company or bearer, with interest at the rate of six per centum per annum, payable semi-annually on the first Mondays of. January and July, at the office of the Ohio Life Insurance and Trust Company, in the city of New York, upon delivery of the coupons severally hereto annexed, for which payment of principal and interest well and truly to be made, the faith, credit, and property of said county of Mercer are hereby solemnly pledged under authority of the Act of Assembly of this Commonwealth, entitled “ A supplement to the Act incorporating the Pittsburgh & Erie Railroad Company,” which said Act was approved the twenty-first day of April, 1846, and which said supplement became a law on the fourth day of May, 1852. “ In testimony whereof, and by reason of said Act and supplement of'the Legislature of Pennsylvania, and the resolutions of the county commissioners in their official capacity, passed on the twenty-third day of June, 1852, the commissioners of said county have signed, and the clerk of said commissioners has countersigned these presents, and have hereto caused the seal of said county to be affixed this fifth day of September, A. d. 1853. “ J. D. McGill, (Signed) J. W. PeNNOCK, “ Clerk of Courts. J. J. Dime AN. Commissioners of Mercer County.” The plaintiff thereupon rested. A motion by the defendant for a judgment of nonsuit having been refused, the defendant offered to prove that, at the time of the maturity of the bonds in suit, the county had advertised in the Mercer Dispatch, and other newspapers, that it was ready to pay and would pay the bonds on presentation, and further that the county was then in funds and was prepared to pay all its outstanding bonds, and had been ever since. Objected to, as not evidence of a tender, or sufficient evidence of a notice. By the court: Offer refused; exception. The case then closing on the testimony, the court Mebabd, P. J., after ruling that the bonds in the hands of innocent purchasers for value, without notice and before maturity, were collectible, directed the jury to return a verdict for the plaintiff for the amount of the bonds and the coupons attached, “ reserving, however, for future consideration and determination, the question whether the plaintiff must show that he is an innocent purchaser for value, without notice of the illegality of the bonds.” The jury returned a verdict for the plaintiff for $1,386.76, subject to the question reserved. After argument of the question, the court, Mehaed, P. J., filed an opinion, wherein, after citing and considering Mercer Co. v. Railroad Co., 27 Pa. 389 ; Mercer Co. v. Hacket, 1 "Wall. 83; 1 Dillon on Mun. Corp., §§ 549, 550; Knight v. Pugh, 4 W. & S. 445 ; Hutchinson v. Boggs, 28 Pa. 294; Albietz v. Mellon, 37 Pa. 367; Hoffman v. Foster, 43 Pa. 137 ; Smith v. B. & L. Ass’n, 93 Pa. 19; Lerch Hardware Co. v. National Bank, 109 Pa. 240; Tiedeman on Com. Paper, § 303, the court concluded: The question is not what was the moral status of the commissioners with respect to this transaction, but how were the rights of the county affected by it? We agree with the learned counsel of the defendant that this case is covered in all material points by the decision of our Supreme Court in Lerch Hardware Co. y. National Bank, 109 Pa. 240. There, a negotiable note was executed in the name of the Lerch Hardware Co., Limited. It was signed by the secretary and treasurer and countersigned by the chairman. An affidavit of defence was filed alleging that the note was given for a loan of the credit of the company, but without the knowledge and consent of any of the members of the company save the chairman, and that the consent in writing of a majority of the members was not given as required by the act under which the company was organized. The court below gave judgment for the plaintiff for want of a sufficient affidavit of defence, but the Supreme Court reversed this decision, on the ground that the allegations in the affidavit were sufficient to cast upon the plaintiff the burden of showing that he was a bona fide holder for value. The parallel is complete, and leads to the conclusion that the facts appearing in this case are sufficient to require of the plaintiff proof that he was an innocent purchaser for value before maturity. It is contended by the learned counsel for the plaintiff that even though the facts in evidence might otherwise cast such a burden upon him, yet, inasmuch as there is no evidence that plaintiff had notice of such special matter as would put him to proof of his title, the usual presumption in his favor must prevail. It is true, the defendants did not give the plaintiff such notice. For, even if the affidavit of defence be sufficient in substance and competent for that purpose, it was not given in evidence, and therefore cannot be considered: Maynard v. Bank, 98 Pa. 250. It is also true that ordinarily a plaintiff is not required to prove himself a bona fide holder for value of negotiable paper, unless he has had notice of the special matter on which the defendant relies: Beltzhoover v. Blackstock, 3 W. 20-27; Albietz v. Mellon, 37 Pa. 367. But, when the evidence is indicated by the plea, and the plaintiff had knowledge of the facts relied upon, we take it the rule would not hold. The plea in this case is non-assumpsit, and the defendant relies upon the fact that there was no promise by the county of Mercer to pay these bonds; that they are not the bonds of Mercer county, as the plea implies. On the trial, the plaintiff, knowing that it was not sufficient to simply prove execution of the bonds by the county commissioners, gave in evidence the act of May 4, 1852, and the action of the grand jury, in order to show the authority of the commissioners to execute the bonds. This evidence showed that the commissioners had not such authority. It then became necessary for the plaintiff, according to his own showing, to make proof of further facts which would estop the defendant from denying the power of the commissioners to issue the bonds, to wit, that he purchased for value, in the ordinary course of business, before maturity, relying upon the act of assembly and the contents of the bonds. We think, therefore, the plaintiff cannot object to the burden which the plea and his own evidence imposed. It is now considered that the question reserved must be decided against the plaintiff. It is accordingly ordered that judgment be entered in favor of the defendant and against the plaintiff, non obstante veredicto. —Exception having heen sealed, and judgment having been entered as directed, the plaintiff took this appeal, specifying that the court erred in directing judgment for the defendant, non obstante veredicto, and not directing judgment for the plaintiff on the verdict. That the bonds were negotiable, counsel cited: Mercer Co. v. Hacket, 1 Wall. 83-95; Beaver Co. v. Armstrong, 44 Pa. 63; Gibson v. Lenhart, 101 Pa. 522; s. c. Ill Pa, 624; Kerr v. Corry, 105 Pa. 282; Lexington v. Butler, 14 Wall. 282; Carr v. Le Fevre, 27 Pa. 413; Diamond v. Lawrence Co., 37 Pa. 353. That the holder was prima facie entitled to recover on their production : Miller v. Race, 2 Sm. L. C. 523 ; Holme v. Karsper, 5 Binn. 469; Beltzhoover v. Blaekstoek, 3 W. 20; Knight v. Pugh, 4 W. & S. 445; Brown v. Street, 6 W. & S. 221; Lerch Hardware Co. v. National Bank, 109 Pa. 240; 2 Greenl. Ev., §§ 155,172 ; Story on P. N., §§ 181, 196 ; 1 Sand. PI. & Ev., 586; Phelan v. Moss, 67 Pa. 59; Albietz v. Mellon, 37 Pa. 367; Penn Bank v. Frankish, 91 Pa. 339; Snyder v. Riley, 6 Pa. 168; Hutchinson v. Boggs, 28 Pa. 294. And could not be held to prove consideration, on the trial, unless previously notified that he would be required to do so: 2 Stark. Ev., 221; 1 Sand. PI. & Ev., 587; Story on P. N., 181-196; Holme v. Karsper, 5 Binn. 469; Knight v. Pugh, 4 W. & S. 445; Beltzhoover v. Blaekstoek, 3 W. 20; Brown v. Street, 6 W. & S. 221; Albrecht v. Strimpler, 7 Pa. 476; Dingman v. Amsink, 77 Pa. 114; Jarden v. Davis, 5 Wh. 337. And not then, as part of his original case: 2 Stark. Ev., 221; Jarden v. Davis, 5 Wh. 337; Albietz v. Mellon, 37 Pa. 367; Snyder v. Riley, 6 Pa. 164. Counsel cited: (1) Smith v. Sao Co., 11 Wall. 139; Stewart v. Lansing, 14 Otto 505. (2) Beltzhoover v. Blaekstoek, 3 W. 20.
138 Pa. 533Borough of Greensburg v. Laird (1891)
No. 197 October Term 1890, Sup. Ct.; court below, No. 112 May Term 1890, C. P. On February 13, 1890, the “ Burgesses and Inhabitants of tbe Borough of Greensburg ” issued a scire facias against Harrison P. Laird, sur municipal lien No. 1434, M. L. D., which exhibited a claim for 1232.50, being tbe one third of tbe cost and expense of the curbing with stone and paving with brick ninety-three feet of Main street, in said borough, at $7.50 per foot front, with interest from…
138 Pa. 541Jarecki Mfc. Co. v. Haymaker (1891)
in. an action by a bona fide holder for value against the payee and in-dorser of a negotiable note, the defendant cannot set off against the note damages alleged to have accrued to a firm of which he was a member, by the breach of a contract by another firm not parties to the action and never the owners of the note.
138 Pa. 546Holmes v. Chartiers Oil Co. (1891)
No. 1 October Term 1890, Sup. Ct.; court below, No. 181 May Term 1887, C. P. On March 28,1887, S. D. Holmes and others having obtained judgment against McCauley Brothers for the sum of $1,965.50, caused an execution-attachment to be issued and served upon the Chartiers Oil Company, as garnishee of the defendant ñrm. The garnishee answered, denying the possession or control by it of any moneys or assets due or belonging to the defendants.
138 Pa. 561Kennedy v. Crawford (1891)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS OP BUTLER COUNTY. No. 16 October Term 1890, Sup. Ct.; court below, No. 56 June Term 1889, C. P. On May 7, 1889, Samuel A. Kennedy brought ejectment against W. G. Crawford, for one acre of ground in Adams , township. The defendant’s plea was not guilty. At the trial on November 5,1889, it was shown that tbe plaintiff, being the owner of the land in controversy, made an oil- and gas-lease thereof to the defendant Crawford and W. A. Gilleland, on June 27, 1885, reserving to the lessor a graded royalty upon oil produced, in kind, and a royalty upon gas of fen per cent of its net proceeds. The lease provided that tbe land should be held by the lessees, for the purposes therein specified, “ for and during the time oil or gas may be found in paying quantities, not exceeding the term of fifteen years from the date of this lease,” and contained, further, the following stipulations: “ The said parties of the second part hereby agree to commence drilling on said test well, within ninety days from June 27,1885, and to prosecute said drilling with due diligence to success or abandonment, and should oil or gas not be pumped or excavated in paying quantities on or before June 27, 1886, then this lease to be null and void.” “ Said second parties do further agree that if oil is found in paying quantities, to protect the prbperty hereby leased by drilling thereon an equal number of wells to any wells that may be started on the lands of other parties adjoining this land;.and it is understood and mutually agreed that if said second parties, their heirs or assigns, fail to comply with any of the terms or conditions herein contained, then this lease shall become null and void, and not binding on said first party.” The lessees took possession, under the lease, and commenced the drilling of a well in August, 1885. While the well was drilling, Gilleland assigned his interest in the leasehold, to the defendant. Sometime in December, 1885, the well was put into the oil-bearing rock, with a showing of oil. The defendant testified that there was also sufficient gas in the well to use, and that it contained “ oil and gas both, in paying quantities.” He testified, further, that he pulled the casing out of the well, with the intention of putting in smaller casing and packing off the salt water, but that, as the weather got very cold, he concluded it would be prudent for him to suspend operations until spring, in view of the fact that it was expensive to ease a well and pump salt water in winter; and so, having taken the tools out of the derrick, he went away without having utilized any gas from the well and without having pumped or produced any oil, or made any preparations for pumping or storing oil, but leaving his engine, boiler and other machinery upon the leasehold; that in April, 1886, he returned to resume operations, but was notified by the plaintiff not to go upon the premises, and about May 21, 1886, and on subsequent dates, he received written notices to that effect from the plaintiff; and that in November, 1886, the plaintiff warned him off and kept him from the land. The notice of May 21st, referred to by the defendant, was as follows : “ May 21, 1886. Mr. W. G. Crawford. I notify you by these lines that the oil and gas lease you and others got of me off my farm in Adams Township, Butler County, state of Pennsylvania dated June 1885, has expired, and I now declare said lease null and void and not binding on me, as you have not complied with the stipulations of said lease, and now you take the machinery way off my land in 48 hours, or I will lay claim on said machinery. S. A. KENNEDY.” The plaintiff, in rebuttal, denied that he gave any notice to or in any way interfered with the defendant, prior to June 21, 1886, and testified that the notice bearing date May 21st, was really written on June 21st and misdated by mistake; that the witness intended to give that notice on the day specified in the lease, as that on or before which oil or gas must be pumped or excavated in paying quantities; and, mistaking the figure 7 in the lease for 1, he wrote the notice on June 21st, instead of on June 27th. At the close of the testimony, the court, IIazeN, P. J., charged the jury in part as follows: [The words here, “ to prosecute the said drilling with due diligence to success or abandonment,” are not limited to the means to the principal end contemplated by the contracting parties, but are rather applicable to the object, the purpose, of the contracting minds when they executed this contract. That purpose was the production of oil or gas. The drilling of the test well was the means to obtain that end ; and, to limit the words, with due diligence to success, only to the drilling of the well, is, in our judgment, a misconstruction of the language used by the parties contracting, and the grantee was bound to commence the test well within the time specified, and his failure to so do was a forfeiture by the terms of this agreement. That he commenced within the time and drilled the well, there is no complaint. It seems that neither party dispute that fact, and you will have no trouble about that. But, was it prosecuted to success or abandonment? If to success, then what success ? This lease has provisions, and it was read in your hearing by the counsel, as to what oil was to be given to the grantor; contemplating, clearly, that there was to be a product from this well, of which product the grantor was to receive his share; and success meant, unquestionably, that there was to be a product that could be divided in the proportions named in this contract. It is your duty to decide upon that fact, whether there has been any product whatever divided, or to be divided, or that could have been divided, under any fair construction of this lease. If there is such, we fail to remember it.] 1 [That there was a spray of oil, a smell of oil, or something of that kind, is doubtless true, and the proofs would lead you to that conclusion, but that was not what was contracted for; it is not what the minds of these contracting parties had in view when they executed this contract. Then, we say to you gentlemen, that, interpreting this condition of this lease, this covenant, it was obligatory on the grantee to commence within the specified time, which it is in proof that the grantee did do ; to prosecute that unto success or abandonment; and, having put the well down the depth contemplated, failing to find oil in paying quantities, — and paying quantities is, as contemplated and argued by the counsel for the defendant, a question for the defendant; but the very fact that he did not produee oil which he was bound under the covenants of this lease to do, in some quantity — he might determine whether it paid him or whether it did not, if he had operated the well and taken out but a small quantity, — it is not material how much, — but continued to operate the well, and pay in the proportion provided in this contract, he would have been within the terms of the agreement; but, not having done that, he has not complied with the terms and covenants of this agreement.] 8 [Due diligence required that, even if he had, as he claims, reached oil in paying quantities, if he abandoned, and if you find as a fact that he quit work, — call it abandonment or call it going away, or what you please, — from December until April, it is a violation of this covenaift in this written agreement by which the defendant is bound.] 3 Gentlemen, you take the proofs to determine the facts. Take up what each witness testified to. You try this case by the proofs; the oral testimony by the witnesses. The construction of the written paper is for the court, to be construed by the court. We have given you our views of the covenants in this lease, and the proper view to be taken of them in its application to the issue you have been sworn to try. . Plaintiff’s counsel asks the court to instruct you upon certain points: 1. If the jury are satisfied from the evidence that work or operations ceased on the well for a period of three months or more, under the terms of the lease it became null and void, and the plaintiff is entitled to recover. Answer: This is affirmed.4 2. If the jury are satisfied that oil or gas in paying quantities was not pumped or excavated from the lease before June 27, 1886, then the lease by its terms became null and void, and the plaintiff is entitled to recover. Answer: This is affirmed, unless prevented by the grantee.5 The defendant’s counsel asks the court to charge : 3. The defendant, having successfully drilled said test well to completion and left his rig, machinery, etc., on the said lease, there was no abondonment thereof by him. Answer: This is not affirmed. It is asking the court to pass upon a question of fact solely for the jury.6 4. That the defendant, Crawford, had until June 27, 1886, to test said well, for the purpose of determining whether it would produce oil or gas in paying quantities; and if he was prevented from doing it by the plaintiff, the verdict must be for the defendant. Answer: The assumption that defendant had until June 27, 1886, to test this well, completed in December, is not affirmed; but if, after he completed the well, he was prevented from pumping it by the plaintiff, then that part is affirmed. It was his duty to test the well with due diligence as provided in the agreement, no matter when it was completed, if within the time specified in the lease; and, as we have already stated, if prevented by plaintiff that would prevent the forfeiture.1* 5. That the written notice of plaintiff to defendant, May 21, 1886, in which plaintiff declared said lease null and void and required defendant to remove his machinery, etc., therefrom, taken in connection with the verbal notice to the defendant, that the plaintiff would not permit him on the premises, was such interference on the part of the plaintiff as excused defendant and preserved to him all his rights, etc., under said lease for the full term thereof. Answer: This is not affirmed.® 6. The defendant having proved that he successfully finished the drilling of said well in December, 1885, having by the terms of said lease until June 27, 1886, to pump and produce oil on the said lease, it was discretionary with him when or at what time he would put said well in pumping condition, so that it was down before June 27, 1886; and, the delay from December to April, at which latter time he went to the premises for the purpose of putting.said well in pumping condition, and was notified by plaintiff not to go upon the said lease, did not make said lease null and void. Answer: This is not affirmed.9 7. That under all the evidence the verdict must be for the defendant. Answer: This is not affirmed.10 —The jury returned a verdict for the plaintiff for the land described in the writ. Judgment having been entered thereon, the defendant took this appeal assigning for error: 1-8. The parts of the charge embraced in [ ] 1 to 3 4, 5. The answers to plaintiff’s points.4 5 6-10. The answers to defendant’s points.6 to 10 1. The clause in the lease, “ and to prosecute said drilling with due diligence to success or abandonment, and should oil or gas not be pumped or excavated in paying quantities on or before June 27, 1886, then this lease to be null and void,” must be read as a whole, and not separated into parts, as the. court below would have it. Reading it as a whole, the latter part of it is the only provision effective for a forfeiture. The words, due diligence to success or abandonment,' lost their meaning entirely when the defendant completed his well, developing oil therein. He had a right then to use his judgment as to when he would put the well into condition for pumping, provided he was pumping oil in paying quantities on or before June 27, 1886, and it was not a violation of his covenant to suspend work from December to April. The court should have so instructed the jury. 2. The uncontradicted evidence shows that there was no abandonment by the defendant, and that if the plaintiff had not interfered with him and thus prevented his fulfilling the contract, he would have complied therewith within the specified time. “ Equity abhors a forfeiture when it works a loss that is contrary to equity.” It is not equitable to allow the plaintiff to enforce a forfeiture in this ease, after the defendant has drilled his well at a large expense, taking the risks unavoidably incident to the putting down of a wild-cat well, simply because, in his prudence, he delayed putting the well into pumping condition from December to April, when no injury to the lessor resulted therefrom. To allow such forfeiture “ would be to sanction a fraud such as no court has ever permitted:” Westmoreland N. Gas Co. v. DeWitt, 130 Pa. 253. The points and assignments of error are all based upon alleged facts which the verdict of the jury has negatived. They have found that operations on the well ceased for a period of three months or more, and that the plaintiff did not prevent the defendant from pumping oil on or before June 27, 1886. The lease, therefore, was void by its terms. Having no facts to stand on, the defendant’s points fall.
138 Pa. 570South Mahoning TP. v. Marshall (1891)
(«) A testator, after a specific bequest to his wife and a bequest of the residue of his estate to his children, devised his farm to his son David in fee, but provided: “ My wife shall have as much room of the house as she may need, or as my son David and her may determine; also barn room for her stock.” (6) A codicil to the will appointed David guardian of his son John, who was weak-minded but able-bodied, as to the money that should come to him under the will, directing that John “ shall remain on said farm with my beloved wife and son David who shall care for him in all his actual wants.” (c) David took possession of the farm under the will, and subsequently conveyed it with a condition that his grantee, in addition to the consideration expressed, “ should be bounden by every obligation imposed upon the said David, his heirs and assigns,” by the said last will and testament: 1. A charge upon land can be created only by express words or manifest implication. Without this, the main intent was to secure to John the personal care of his kindred. The charge, therefore, was personal; and, whatever the liability of the grantee of the land, it arose from the covenant in his line of title and was not enforceable in the Orphans’ Court.
138 Pa. 576Ray v. West. Penna. N. Gas Co. (1891)
[To be reported.] (a) An oil- and gas-lease contained a stipulation that the lessee should complete a well within a certain time, or thereafter pay to the lessor certain sums, semi-annually, until such completion; and provided that the lessee’s failure to complete said well, or to make such payments, as stipulated, should render the lease null and void and of no effect between the parties: 1. The forfeiture clause being- inserted in the interest of the lessor, he had the option, upon a default by the lessee, either to declare the forfeiture or to affirm the continuance of the contract; and when he adopted the latter alternative, the lessee could not set up a forfeiture as a defence to an action in affirmance of the lease: Galey v. Kellerman, 123 Pa. -192; Wills v. Natural Gas Co., 130 Pa. 222. 2. When the lessor, being entitled so to do by the terms of such a lease, remains in possession of the land subject to the rights of the lessee, and the lessee has never taken any possession, a formal re-entry by the lessor, for condition broken, is not requisite to effect a forfeiture; his occupancy, however, at and after the breach, will not operate as an assertion of a forfeiture, against his will. 3. The doctrine declared in Wills v. Natural Gas Co., 130 Pa. 222, as applied to a lease made prior to the decision of that case, is not a change in the law impairing the obligation of such contract, within the meaning of article I., § 10 of the constitution of the United States, even though such lease was taken by the lessee in reliance upon the doctrine of K'en-rick v. Smick, 7 W. & S. 41, now rejected. 4. To bring a case within said provision of the federal constitution, it must be the constitution, or a statute, or some enactment that has the force of law, either of the state or of some municipality exercising legislative power delegated by the state, which impairs the obligation of a contract: Williams v. Bruffy, 96 U. S. 178-183. 5. A gas-lease reserved an annual rent of $500 on each well utilized; stipulated for the payment of $250 to the lessor semi-annually until completion of a well, and, after specifying when the $500 rent should be paid, provided in the same sentence that “ a failure to complete one well or to make any of such payments.as above mentioned,” should avoid the lease. The forfeiture clause would seem not to apply to the half-yearly payments for delay. 6. The fact that an oil- and gas-lease, made by a married woman in 1886, with all the terms of which on her part she had fully complied, was not acknowledged in such manner as to be binding upon her, affords no de-fence to an action to recover rentals from the lessee, brought by her after the lease had expired by its own limitation.
138 Pa. 595Hollobaugh v. Peoples' Ins. Ass'n (1891)
No. 155 October Term 1890, Sup. Ct.; court below, No. 25 December Term 1889, C. P. On September 25,1889, William S. Hollobaugh brought as-sumpsit against the Peoples’ Mutual Accident Insurance Association, upon a contract by which the defendant association engaged to indemnify the plaintiff against death, or certain bodily injuries arising from accident.
138 Pa. 606Estate of Woodburn (1891)
[To be reported.] 1. In order that an election by a widow to take under the will of her deceased husband may bind her, it must be made with a knowledge both of her rights and of the relative values of the interests between which her choice is to be made; and this rule applies with especial force, when she is called upon to make her election soon after the husband’s death. 2. Such an election, though made formally by writing under seal filed with the register of wills, will not be binding, if procured from a widow by the executors soon after the husband’s death, she then being ignorant of her rights, and receiving no explanation thereof or of the effect of the paper; at least, if repudiated by her at once, upon ascertaining its effect. 3. When a testator, who has made a lease of his land for oil purposes, Stipulating, as part of the consideration thereof, for the delivery to him of a definite part of the oil produced, bequeaths the income of his estate to life-tenants, such part of the oil produced after his death is income, to which the life-tenants aré entitled absolutely.
138 Pa. 615Commonwealth v. Zelt (1891)
[To be reported.] 1. The word “ known,” in § 17, act of May 18, 1887, P. L. 113, prohibiting the furnishing of liquor to persons of known intemperate habits, does not mean that such habits must be “ known ” to the furnisher; that phrase is but descriptive of a class of persons to whom a dealer sells at his peril, his intent in making the sale being immaterial. 2. Every man has a reputation for sobriety or for intemperance, in the community wherein he resides; and, when a man becomes generally known as an intemperate man in his neighborhood, a person who sells him liquor within that neighborhood, must ascertain and take notice of such reputation at his peril. 3. While, as was held in Leisy v. Hardin, 136 U. S. 100, a state cannot prohibit by a general law the importation from another state of an article of commerce, and its sale by the importer in the original package in which it was imported, the states may, in some instances and for particular purposes, regulate the sale of such packages by partial prohibitions thereof. 4. State laws prohibiting the sale of liquors to minors and to persons of known intemperate habits, are valid regulations as applied to imported liquors sold in the original packages, since they do not interfere with the general power to import and sell, and but incidentally affect interstate commerce by protecting two classes who are wards of the law, one of them not sui juris and the other practically so. 5. Whether a number of quart and pint bottles of whiskey or beer, packed in boxes or barrels, and so shipped into this state, could have been taken out of the box or barrel containing them, and retailed singly by the importer, as original packages, under the protection of the federal constitution, prior to the act of Congress of August 8, 1890, not decided. 6. A defendant, who, in a prosecution for unlicensed sales of liquors made by him prior to August 8, 1890, set up as a defence that he was the agent of an importer, selling the liquor in the original packages as imported, assumes the burden of establishing such agency by competent evidence, to such an extent as to throw a reasonable doubt upon the commonwealth’s case. 7. Under the act of May 13, 1887, P. L. 108, directing that offenders against its provisions shall be imprisoned in the county jail, the courts of such counties as are authorized by act of March 8, 1871, P. L. 184, to impose sentences of imprisonment in the Allegheny county workhouse, in lieu of the county jail, may sentence such offenders to confinement in said workhouse. 8. When a person holding a brewer’s license granted by the Court of Quarter Sessions, and acting, not under such license, but as the employee of an unlicensed person, sells liquor, not of his own make, for his employer, he is to be sentenced, if convicted of a violation of the act of May 13, 1887, in and by such sales, to the punishment prescribed for unlicensed offenders.
138 Pa. 629Commonwealth v. Swihart (1891)
-ARPEAR BY DEFENDANT FBOM THE COTXBT OF QUAETEB SESSIONS OF WASHINGTON COUNTY. No. 191 October Term 1890, Sup. Ct.; court below, No. 26 August Term 1890, Q. S. On August 22,1890, the grand jury returned as a true bill an indictment charging Joseph Swihart with selling liqnor without license. The defendant pleaded not guilty.
138 Pa. 633Commonwealth v. Pendergast (1891)
Nos. 186, 187 October Term 1890, Sup. Ct.: court below, Nos. 19, 21 August Term 1890, Q. S. On August 21, 1890, the grand jury returned as a true bill an indictment»it No. 19 August Term 1890, of the court below, charging W. J. Pendergast with selling liquor without license, and a second indictment against the same defendant, at No. 21 of the same term, charging the furnishing of liquors to persons of known intemperate habits.
138 Pa. 639Commonwealth v. Bishman (1891)
No. 192 October Term 1890, Sup. Ct.; court below, No. 50 August Term 1890, Q. S. On August 22, 1890, the grand jury returned as a true bill an indictment charging William Bishman with the sale of liquors without license. The defendant pleaded not guilty.
138 Pa. 642Commonwealth v. Silverman (1891)
APPEAL BY DEPENDANT PROM THE COURT OP QUARTER SESSIONS OP ARMSTRONG COUNTY. No. 198 October Term 1890, Sup. Ct.; court below, No, 79 June Term 1890, Q. S. On June 4,1890, the grand jury returned as a true bill an indictment oí Citarles Silverman in three counts, the first charge ing the sale of liquors without license, the second, sales to minors, and the third, the furnishing “by sale, gift or otherwise,” of liquors to three persons named, described as persons of known intemperate habits. The defendant pleaded not guilty. At the trial on June 12, 1890, the following facts were shown: The Cincinnati Brewing Company, of Hamilton, Ohio, appointed the defendant as its agent for the sale of beer in the borough of Leechburg, Armstrong county. On May 21, 1890, said company shipped from Hamilton a number of kegs of beer to the care of the defendant at Leechburg. They were received by the defendant on May 24th, and were sold by him on that day, in Leechburg, to residents of that borough and its vicinity. In making such sales, the defendant was acting solely as the agent of said company, and the kegs of beer were sold in the same condition as they were when originally shipped to him. There was testimony tending to show that some of the persons to whom sales were made were minors; that the persons named in the indictment as men of known intemperate habits were such, and that the defendant furnished beer to two of them by sale and to the third by gift. At the close of the testimony the court, Rayburn, P. J., instructed the jury that the defendant could not be convicted on the first count of the indictment, if they should find that the liquor sold by him was in the original packages consigned to him by the brewing company at Hamilton, Ohio, and charged, further, in part as follows: [As to the third count in this indictment, that of selling liquor to men of known intemperate habits, there is evidence that this beer was sold to men whom witnesses state to be men of known intemperate habits. It is for you, gentlemen, to say, under all the evidence before you, whether or not these men named in this indictment are men of known intemperate habits; and if you conclude that they are men of known intemperate habits, and that this beer was sold to them by Charles Silverman, we would say it would be your duty to convict him under the third count of the indictment.. The reason we give for the non-application of the recent decision of the Supreme Court [of the U. S. ], as to this charge of the indictment, .is, that the commonwealth of Pennsylvania has a right to a police regulation of its affairs, and the putting into the hands of men of known intemperate habits intoxicating liquors would be a violation of the laws of the commonwealth of Pennsylvania, and the defendant cannot shield himself under the recent decision of the Supreme Court; saying to you at the same time that original packages from another state cannot be sold in a state to which they are shipped regardless of the law there, on account of the existence of inter-state commerce; and if you find that these men were men of known intemperate habits and that the defendant, Charles Silverman, sold this liquor to them, it would be your duty to convict him of this third count in the indictment, by reason of the commonwealth of Penns}1!-vania having a right to control its police regulations.] 5 . . . . —The jury rendered a verdict finding the defendant not guilty as to the first and second counts, but guilty as indicted, as to the third count, that for selling to-men of known intemperate habits. The defendant, by his counsel, moved the court to arrest the judgment for the following, among other reasons : 1. That the seventeenth section of the act of 1887, on which the third count of the indictment is founded, is unconstitutional and void, the same being in violation of the constitution and laws of the United States, the jury finding that said defendant sold in original packages as agent of the Cincinnati Brewing Company, of Hamilton, Ohio; and the indictment thereon can not be sustained.6 2. That tbe seventeenth section aforesaid, on which the said count is founded, is unconstitutional and void, the same being in violation of § 3, article III. of the constitution of Pennsylvania, in that said section is not covered by or mentioned or expressed in the title of said act, and that said act contains more than one subject; and the provision of said section which is not clearly expressed in said title, and the indictment thereon, cannot be sustained.7 3. That the jury having found the defendant not guilty of violation of law in the sales made, he is not subject to the laws of the state of Pennsylvania, and particularly the said act of 1887.8 —The motion in arrest of judgment having been overruled, and an exception thereto having been sealed for the defendant, the court sentenced the defendant to pay a fine of $500 and the costs of prosecution, and to undergo imprisonment for sixty days in the Armstrong county jail.10 Thereupon the defendant, having obtained a special allowance, took this appeal, assigning inter alia for error: 5. The part of the charge embraced in [ ] 6 6-8. The overruling of defendant’s reasons in arrest of judgment.6 to 8 10. The sentence pronounced upon the defendant.10
138 Pa. 646Assigned Estate of Moss (1891)
£To be reported.] 1. When two funds arising from property of the same debtor are for distribution, and a prior encumbrancer has recourse as such to both funds, a junior encumbrancer having a lien on but one of them, which is insufficient to pay both creditors, the prior creditor shall first exhaust that to which the other cannot resort. ■ 2. This rule applies to a case in which one of the funds, that on which the junior encumbrancer lias no lien, is the proceeds of property in another state, when such proceeds have been brought into this state by the debtor’s assignee for the benefit of creditors, for distribution under the deed of assignment. (a) A resident 'of Pennsylvania, owning land in that state and also in West Virginia, made an assignment of his entire estate for the benefit of his creditors. His personal estate had been exhausted by executions levied thereon, and the land in Pennsylvania was encumbered by judgments in excess of its value. (b) The West Virginia land was encumbered by three deeds of trust, the second and third being in favor of the assignee, as collateral security for certain of the Pennsylvania judgments held by him. That land was sold under the first deed of trust, not realizing enough, however, to pay the second deed of trust in full. (c) In addition to the proceeds of the Pennsylvania land, the assignee charged himself in his account with the entire proceeds of the West Virginia land, taking credit for the disbursement thereof to the holder . .of the first deed of trust and to himself as the trustee named in the other deeds of trust: ’ . 3. Upon distribution of the assigned estate, the Pennsylvania court had jurisdiction to require the application of the money, realized upon the second deed of trust, to the judgments for which it was security, so as to protect subsequent encumbrancers having liens upon the Pennsylvania land only. 4. The equity of the subsequent encumbrancers to have such an application made, was not affected by the facts that the assignee had guaranteed a judgment posterior to theirs, and that the circumstances were such that a different application would save him from loss by reason of his guaranty.