139 Pa.

Volume 139 — Pennsylvania State Reports

86 opinions

139 Pa. 1Stayton v. Graham (1891)
APPEAL BY PLAINTIPP PNOM THE COURT OP COMMON PLEAS OE BUTLER COUNTY. No. 172 October Term 1890, Sup. Ct.; court below, No. 108 June Term 1879, C. P. On March 10, 1879, a scire facias sur mortgage was issued by E. R. Stayton, for use of W. W. Martin, now for use q' George S. Bryan, against Dr. Samuel Graham and Elean/ Graham. On March 29th, W. H. H. Riddle and Alexander Mitchell, on affidavit of defence filed, were permitted to intervene and defend as terre-tenants of a portion of the premises bound by the mortgage. On April 24th, judgment was tendered by the defendants for §6,551, the amount of plaintiff’s claim less §1,239, the usury set up in the affidavit of defence. On the same day, the plaintiff declined to accept the tender in full satisfaction, hut elected to accept it as satisfaction pro tanto and to proceed to trial for the balance. A trial was had subsequently, and on April 27, 1886, a verdict rendered for the defendants. Judgment having been entered on the verdict, the plaintiff took a writ of error to No. 123 October Term 1886, Supreme Court, whereon the judgment on November 1, 1886, was reversed with a venire de novo : Stayton v. Riddle, 114 Pa. 464. At the next trial, on November 4, 1889, the facts made to appear, briefly stated here, but fully stated in the opinion of the Supreme Court, were as follows: After the plaintiff’s election to proceed to trial for the balance claimed upon the mortgage, the terre-tenants alone then defending, an affidavit was filed nunc pro tunc counter to the affidavits of defence filed, wherein it was averred by Dr. Samuel Graham, the mortgagor, that he was “ not asking a reduction of plaintiff’s mortgage on account of usurious interest,” etc., anal subsequently, on August 16, 1880, Dr. Graham and wife, -the mortgagors, voluntarily confessed judgment, to No. 173 '.September Term 1880, in favor of the plaintiff for the balance of the judgment then unpaid, to wit, $1,676.07. On March 5,1881, the terre-tenants, or one of them, filed a bill in equity against Dr. Graham, and George S. Bryan, the use plaintiff, to enforce an agreement alleged to have been made with Graham, upon the faith of which, as was alleged, the terre-tenants had purchased the property subject to the mortgage, to wit, that $1,050 of the mortgage debt was usurious, and that Graham would defend against it. This bill, after, answer filed, was so proceeded in that in the end it was dismissed, on the ground of an existing adequate remedy at law. Next, after the verdict and judgment for the defendants, heretofore referred to, and its reversal in Stayton v. Riddle, 114 Pa. 464, to wit, on March 23, 1889, the death of George S. Bryan, the use plaintiff, was suggested, and S. S. Bryan, his executor substituted. Then, on May 7, 1889, the cause again being set for trial, Dr. Graham united with the terre-tenants in a petition, verified by his affidavit, setting out the actual existence of the usury in the mortgage, previously denied; and thereupon, after argument, the judgment confessed by Graham and his wife was opened to let in a defence; exception.1 At the close of the testimony, showing, inter alia, the foregoing facts, the court, McMlCHAEL, P. J., charged the jury: This case is really a question for the court. The plaintiff admits that the sum which he now seeks to recover was usury included in the mortgage given by Dr. Graham, held by plaintiff, and it is conceded that if Dr. Graham had set up the defence, which is now set up by him, in the inception of this case Avhen the suit was brought, he might have been able to prevent a verdict against him and these other defendants for the amount claimed. The claim, however, is that he has done certain acts, so conducted himself in this litigation and with respect to this claim, that he now ought not to be permitted to set up this defence. On that subject there has' been some evidence offered here, all of it, I believe, connected with this litigation. There is no dispute about the truth of the facts, as they are alleged in these sundry papers. Nobody denies that Dr. Graham has done just the things which the papers offered in evidence show him to have done. The question, then, is really one for the court to determine, whether those acts, about which there is no dispute, are such as should estop him from setting up this defence in this case. That question the court will reserve for future examination. The plaintiff in this case asks the court to charge you: 1. That, although at the inception of the proceedings on this scire facias, the defendant, Dr. Graham, had a clear right to set up the defence of usury to the amount claimed by plaint^ iff in the present issue, yet, if the jury find, that Dr. Graham refused to set up said defence, voluntarily confessed judgment therefor, refused, also, when the bill in equity was filed, to make such defence, and by reason thereof the plaintiff incurred. expenses to not less than $250, in litigating the defence set up by the terre-tenants, the other defendants, said Graham is now equitably estopped from setting up said defence of usury, and the verdict should be for plaintiff for $1,050, with interest from February 8, 1876, or $1,912, with costs of suit against defendants, to be levied de terris. Answer: So far as your present duty is concerned, the court answers that point in the affirmative, but reserves the question as to whether the facts set up and referred to in the point are sufficient to estop the defendant, Graham, as mentioned in the point; with the right to enter a judgment for the defendant, notwithstanding the verdict, in case the court concludes that is the law. —A verdict was thereupon rendered in favor of the plaintiff for $1,912, subject, etc. After argument of the reserved question, the court, Mc-Michael, P. J., on March 3, 1890, filed an opinion, which after stating the facts proceeded: The case, more concisely stated, is this: The plaintiff has expended $250 in trying to obtain a final judgment for the usury contained in the mortgage, against which the mortgagor made no defence, and, when requested by the terre-tenants to defend, he refused to do so, and voluntarily confessed judgment to plaintiff for the whole amount of the usury. Do these facts estop him from now setting up the defence of usury? If the defendant is estopped, then the court ought not to have opened the judgment which he confessed. All the facts which are now relied on as sufficient to estop him were then on the records and known to the court, except the precise amount expended by plaintiff in the litigation, and that precise amount is not material. It might have been more or less, without changing the law of the case. Defendant’s counsel claim that it is now too late to inquire whether the judgment was rightly opened; that that matter is res judicata,- that all these matters of alleged estoppel have been passed upon and determined by the opening of the judgment, and the defendant now stands as though no judgment had ever been entered against him. I do not think that position is entirely correct. If the court erred in opening the judgment, it is not too late to now correct that error. But I have not been convinced that it was error to open the judgment. There was not then, and there is not now any doubt that the plaintiff obtained the confession of judgment for the purpose of concluding him and all the parties concerned, from setting up the defence of usury. It was a method, a device adopted in this case for the purpose of enabling the plaintiff to collect more than six per cent interest on the money he had loaned. It is perhaps true that the plaintiff did not intend to collect it from the defendant or his property, and that the defendant did not expect that he would personally have it to pay; but that does not make it any the less true that the purpose was to fix his personal liability to pay it, to put him in such a position that at law he could be compelled to pay it. The line of decisions in Pennsylvania is long and unbroken that no such device, nothing short of actual payment of a judgment containing usury, will prevent or estop the defendant from setting it up as a defence. If it were definitely settled and determined that a lender could bring suit on the obligation given him by the borrower, and, after obtaining a confession of judgment in’ such suit, estop the borrower from showing usury because he had been put to trouble and expense in the matter, the usury laws would be very easily and constantly evaded, and the very expense which would serve as the ground for the estop-pel would be added to and included in the usury. Our usury laws might as well not exist if a borrower’s promise, his covenant, his deed, or his confession of judgment, coupled with some expense (the amount is not material) on the part of the lender, and incurred on the faith of such promise, deed, or confession, is to estop the borrower from setting up the defence of usury. It is a mistake to suppose that the law of estoppel, which applies where one induces another, by some representation or conduct, to pay money which he would not otherwise pay, applies to.cases of usury where the party pleading the estoppel knows of the usury. He is not misled or deceived in any way. He knows that no matter what security he takes, whether note, bond, mortgage, or judgment, still the borrower can successfully refuse to pay the usury. He loans- his money in the first place, and he afterwards spends his money in trying to collect what he has loaned, with usury, relying on the borrower’s promise or covenant that he will not plead the defence of usury. But he knows all the time that the borrower can, at any time, legally violate that promise or covenant and set up that defence, and he knows that the statute was passed for the very purpose of giving the borrower that right. He is not misled to his injury, but he injures himself by attempting to collect money which the statute says the borrower shall not be required to pay. .... —Citing and considering Wood’s App., 1 Penny. 259; Marr v. Marr, 110 Pa. 160, and Earnest v. Hoskins, 100 Pa. 551, the court proceeded: It does not seem necessary to cite others of the numerous cases where judgments have been opened and the defendants let in to defend against usury. It is well settled that nothing short of a judgment, obtained in a proceeding which is actually adversary, or the payment of a judgment, is sufficient to prevent a defendant from defending against usury, when the plaintiff is the lender of the money or takes the obligation with knowledge of the usury. In our case, it is admitted that Mr. Bryan was the real lender of the money which Dr. Graham got, and knew of the usury. A borrower can estop himself by a certificate of no defence, or other representation to a purchaser of his obligation who has no knowledge of any usury in it, from defending against usury, but the plaintiff who knows of or exacts the usury cannot estop himself by any amicable device short of payment of a judgment. The lender trusts the borrower’s promise or undertaking, and the statute says the borrower need not keep that promise or undertaking. Then, he cannot be estopped by anything the lender may do, relying on such promise or undertaking. Thus far, I have considered this subject as though no persons except the plaintiff and Dr. Graham were concerned in it, and that is the proper way to view it. The terre-tenants who are made defendants, have no right to any consideration in this controversy. Their lands are liable to the payment of the amount unpaid on this mortgage. Whether they are sufficient to pay it, or whether it would be collected from those lands, or from the defendant on his bond, the court does not know. That they have no right to defend against the usury was decided by the Supreme Court in this case. Our only question is whether the defendant has now the right to make this de-fence. If he has, the terre-tenants may be benefited, but it is his rights and not their benefit that we are seeking. The argument of the learned counsel for plaintiff, though he did not state it in terms, seemed to proceed on the theory that though Dr. Graham might yet defend, if the usury were to be collected from him, he should not now be permitted to prevent the plaintiff from collecting it from the terre-tenants. That position was well taken, if it appeared that Dr. Graham could not now be compelled to pay it if judgment were recovered against him, but the plaintiff failed to produce the evidence that Dr. Graham had been discharged in any bankruptcy proceedings, or is not now liable on his bond. As the case stands, Dr. Graham has a right to defend in his own interest, leaving out of view the interests of the terre-tenants. He cannot be estopped any more by the facts that he confessed judgment and stood by while the plaintiff expended $250 in trying to collect this usury from the terre-rtenants, than he would have been estopped if he bad permitted the plaintiff to expend that sum, or more or less, in trying to collect the usury from himself. The fact that there are terre-tenants, in the case, in no way changes the rights of the plaintiff and defendants as between themselves. The whole subject now considered, in this opinion, is in fact a review of the action of the court in opening the judgment confessed by Dr. Graham. I think enough has been said to show that the court did right in opening that judgment. If that be true, then Dr. Graham had a right to defend against the usury in the mortgage. It is admitted that the whole amount of the verdict is usury, with interest on that usury. It follows that the defence to the whole of the plaintiff’s claim was complete. Judgment is entered for the defendants, on the reserved question, notwithstanding the verdict. —Thereupon, the plaintiff took this appeal, specifying that the court erred: 1. In opening the judgment confessed on August 16,1880.1 2. In entering judgment in favor of the defendants, non obstante veredicto. 8, 4. In holding that Dr. Graham was not estopped by his conduct. Counsel cited: Herman on Estoppel, §1012; Insurance Co. v. Mo wry, 96 U. S. 547; Bigelow on Estoppel, 678. Counsel cited: Duquesne Bank’s App., 74 Pa. 438; Wood’s App., 1 Penny. 259; Marr v. Marr, 110 Pa. 60; Earnest v. Hoskins, 100 Pa. 551.
139 Pa. 13Gloninger v. Pittsb. & C. R. (1891)
APPEAL T5Y PLAINTIFFS FEOM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 214 October Term 1889, Sup. Held: accordingly, that the mortgage and bonds in question were valid, notwithstanding the provisions of the present constitution and the act of April 18,1874, the company having heen invested with power to give them by the acts of April 3, 1837, P. L. 185; April 18,1853, P. L. 566; and April 6, 1854, P. L. 281; and recommended that the…
139 Pa. 42Ross v. Walker (1891)
APPEALS BY DEPENDANT EROM THE COURT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY. Nos. 4, 5 October Term 1890, Sup. Ct.; court below, Nos. 115, 116 April Term 1888, C. P. No. 2. At No. 116 April Term 1888, of the court below, Sylvester Ross, a minor, by his next friend, Hugh Ross, brought trespass against J. W. Walker, to recover for personal injuries received by said Sylvester Ross, in consequence, as was alleged, of negligence on the part of tbe defendant. Issue. At No. 115 of the same term Hugh Ross brought trespass against the same defendant, to recover damages, as the father of Sylvester Ross, for the same injuries. Issue. The two cases were tried together on September 30, 1889, when the following facts were shown: In June, 1887, the defendant was engaged in erecting, as a contractor, an iron bridge over the Pittsburgh, Ft. Wayne & Chicago railway, at Superior station, Allegheny county, to replace a wooden one upon the same location. Sylvester Ross, then about nineteen years of age, was one of the workmen employed, and the defendant’s foreman, one Duffey, had a general oversight of the work. In a general way, Duffey directed the work and the men, and occasionally hired and discharged men. The testimony of certain witnesses tended to show that Duffey was in entire charge of the work, and that, while the defendant was on the ground several times during its progress, he gave no directions to the workmen. On June 21, 1887, the men were engaged in erecting part of the scaffolding required for use in putting up the bridge. An abundance of material had been provided for that purpose, part of which consisted of timbers taken out of the old bridge. Out of the mass of material, a piece of 8 by 10 timber was selected by some one for use as a “ cap ” in the scaffolding or false work. The testimony was conflicting as to whether it was selected for this particular use by Duffey, or by one of the workmen under him. It was of sufficient size for the purpose, however, and was sound, except that it contained a large knot which weakened it. The testimony tended to show that the knot was visible upon the surface, though larger in the interior of the timber, and that an ordinary inspection would have discovered it. After the cap had been put in position it broke, in consequence of the weakness produced by the knot, causing Sylvester Ross to fall to the ground and receive the injuries for which these actions were brought. No question was raised as to the competency and skilfulness of the foreman, and of the other workmen who were employed with Ross, and there was no evidence of any negligence in the construction of the scaffolding, except in the use of this defective piece of timber as a cap. At the close of the testimony, the court, EwiNG, P. J., charged the jury in part as follows: The defendant requests the court to charge the jury as follows : 2. That, if the jury find that the defect in the timber was visible, then the negligence in the use of it was the negligence of the fellow servants of Sylvester Ross, and not the negligence of defendant, and the verdict must be for the defendant. Answer: The second point is refused.1 3. That, if the defendant furnished an abundance of material from which the workmen employed in constructing the bridge could select suitable timber for the erection of the false work, and plaintiff’s fellow servants selected the defective timber, the breaking of which was the cause of plaintiff’s injury, the defendant is not liable therefor, and the verdict must be for the defendant. Answer: The third point is affirmed. 4. That, under all the evidence in this case, the verdict must be for the defendant. Answer: The fourth point is refused.8 5. That, if the jury find that the defendant put the work in charge of a competent foreman, and there was enough suitable 'material on the ground to build the scaffolding, then there is no negligence on the part of the defendant, and the verdict must be for the defendant. Answer: The fifth point is refused. If Mr. Duffey was nothing more than a mere foreman, in the ordinary sense of that term, in charge of the work under the general superintendence of the defendant, the point is affirmed. But, if Mr. Duf-fey was in the entire charge and control of the work of erecting the bridge, determining what materials were to be furnished for the scaffolding, employing and discharging the men, and directing where and what materials were to be used, he was acting for Mr. Walker as vice-principal, and his negligence would then be the negligence of the defendant.3 —After referring to the testimony, the court proceeded: A question for you to determine, before you need consider as to whether or not Mr. Duffey was guilty of negligence, is what position he occupied. That is a question of fact for the jury. I do not mean to say that it is a question for the jurj to determine as to wliat the responsibility of Mr. Walker would be for Mr. Duffey’s acts, if the facts were not in dispute. Because, if the facts were not to some extent matters for the jury to determine, the court would say what position he occupied. [But, we have already said to you that if Mr. Duffey was in entire charge of this work of building the bridge, erecting scaffolding and determining what material was needed and how it was to go up, having general control, hiring the men, (which is not a very important or material matter, whether he hired and paid them or not,) but if he were in entire charge of this work, determined what was to be furnished and how it was to go up, not under the general superintendence of Mr. Walker, going back and forth, then he is to be treated just as though it was Mr. Walker there; acting in general superintendence, — not, however, where he was acting as a workman or as a.mere foreman of a gang or squad of men, but if he was in entire charge of that work; then, his acts in that general charge are to be treated in this case as the acts of Mr. Walker. It is for the jury to say whether he was there in that way or not; if he was not, but was simply an ordinary foreman in charge, without this authority, you will find for the defendant;] 4 you need not go any further. To explain what I mean: If Mr. Rea, and the other men who aided in erecting this bridge, in putting in this piece of timber, were simply the fellow workmen of this young man who was hurt, and if the putting in of the timber was their negligence, the plaintiffs cannot recover. If the timber was simply furnished and lying there, and good timber also, and it was their business to make a selection, and they negligently selected this bad piece of timber, the plaintiffs cannot recover. But, if Mr. Duffey was in this general charge of the work, that I have indicated to you would make Mr. Walker responsible for him; and if he determined that this was a fit piece of timber for that place, selected it and ordered it put in there, in this general oharge of the work, then the act would be that of Mr. Walker, and then you would come to the question whether he was negligent or not. Now bear in mind, again, what negligence is; he is not an insurer. It does not follow that because the timber turned out to be defective in fact, there was negligence in putting it in. If it was apparently strong and sufficient, and be put it in, it is one of those accidents that nobody is responsible for, if it was in the exercise of reasonable care. But, if the knot so showed that he, on a reasonable inspection of it, could have ascertained, and should have ascertained that it was unfit for the place, then it was negligence. You have his testimony on that point and the testimony of the others. The witnesses for the defence say that the piece of timber looked to be all right outside. The workmen who put it in, Miller and Rea, say it appeared to be all right, and one of them said, at one time, that he and his fellow workmen selected it; but again, the same witness said that Mr. Duffey was also there. The witnesses who testify to its appearance, after the break, do not pretend to have seen it before, and it might very readily be a knot that would weaken largely in the interior of the wood, and yet show to a very trifling extent on the surface. I do not understand that knots that endanger a piece of timber of that size will always appear on the surface, at all, and you have the testimony, of Mr. Duffey 'as to how this knot ran through the stick of timber, the only witness who gives any account as to how it did run. No witness says that the timber itself was rotten or unsound, and on that simple, very narrow question stands the right of the plaintiffs to recover, if at all. Unless Mr. Duffey is to be treated as the vice-principal and standing in the place of Mr. Walker, for the reasons I have given, then the plaintiffs cannot recover; and, even if he does so stand, unless he was guilty of negligence in his selection of that timber to be in there, and did select it in order to put it in that place, they cannot recover. The jury rendered a verdict for $134 in favor of Sylvester Ross, and a verdict in favor of Hugh Ross for $166. Judgments having been entered, the defendant took these appeals, assigning for error: 1-8. The answers to defendant’s points.lto-3 4. The part of the charge embraced in [ ] 4 It was not contended upon the trial that there was any personal negligence on the part of the defendant, as the employer of the workmen engaged in erecting the bridge. If there was any negligence in the selection of the defective piece of timber, and lack of care in its inspection before it was put up in place, it was the negligence of a fellow servant. It was the duty of the defendant to provide suitable material out of which his servants could erect the scaffolding; and, admittedly, he could not delegate this duty, except subject to a liability for the negligence of his agent, if the latter should fail to provide such suitable materials. But, having provided an abundance of sufficient and proper materials, he is not liable to a servant for the act of a fellow servant, in passing by safe material and picking out that which was unsafe. Nor, was he required to remove out of the reach of his servants every piece of timber unsuitable for the scaffolding. Duffey was but a fellow servant of Sylvester Ross, and for his negligence the defendant is not liable: Lehigh Y. Coal Co. v. Jones, 86 Pa. 432; New York etc. R. Co. v. Bell, 112 Pa. 409; Kinney v. Corbin, 132 Pa. 341; Wilson v. Merry, L. R. 1 S. & D. App. 326. The verdicts amount to a finding that Duffey was a vice-principal, as defined by the court. Unless the definition is wrong, or there is no evidence bringing Duffey within it, there is nothing to be considered in these appeals. The testimony shows that Duffey had an authority that an ordinary foreman does not have. He had charge of all classes of workmen and directed them in their work. He employed and discharged men. He was in sole control. Though the master occasionally visited the work, he exercised no supervision or control, and gave no orders or directions. Duffey was his mouth piece, not as a foreman, in the ordinary sense of that term, but as an agent: Stephens v. Railroad Co., 96 Mo. 207; Chicago etc. R. Co. v. Hoyt, 122 Ill. 369. And Duffey personally and negligently selected the defective timber which caused the injury.
139 Pa. 52Iron City N. Bank v. McCord (1891)
[To be reported.] (as) A depositor in a sayings bank drew an order thereon payable nine weeks from date. Upon the upper margin of the blank form used ' were printed the words, ‘‘Return notice ticket with this order.” On the lower margin, below the drawer’s signature, were the following printed words : “ Deposit book must be at bank before money can be paid: ” 1. There was enough on the face of the order to show that, in the commercial sense, it was not a regular check and was not intended to oper-ate as such, but was drawn on a specially deposited fund, held by the bank subject to certain rules and regulations requiring certain things to be done before payment of the order could be required. 2. The effect of these requirements was to render the order non-negotiable; as it is well settled that anything written or printed on an instrument, otherwise negotiable, prior to its issuance by the maker and tending to restrain or qualify it, must be regarded as part of the contract intended to be evidenced thereby.
139 Pa. 61In re Sellers M. E. Church (1891)
APPEAL BY ANN REDMAN FROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COHNTY. No. 28 October Term 1890, Sup. Ct.; court below, No. 372 ■ October Term 1889, C. P. No. 2. On August 31,1889, the Sellers Chapel Methodist Episcopal Church of Braddock borough presented a petition to the court below, praying for a decree for the sale of certain real estate, in substance averring: That, by a deed dated April 16, 1889, Matthew Henning and Martha G., his wife, and William Redman and Ann, his wife, in consideration of $50, conveyed a certain lot of ground, then situated in Wilkins township, Allegheny county, now within the limits of the borough of Braddock, to John Kerr, James Kerr, Oliver Clark, John W. House and James Mc-Cleary, trustees, to have and to hold the samé “ unto them the said trustees and their successors in office forever, in trust that they shall erect and build, or cause to be erected and built, a house or place of worship for the use of the members of the Methodist Episcopal Church in the United States of America, according to the rules and discipline which from time to time may be agreed upon and adopted by the ministers and preachers of the said church, at their general conference in the United, States of America; and in further trust and confidence that they shall at all times forever hereafter permit such ministers and preachers belonging to the said church, as shall from time to time be duly authorized bj, the general conferences of the ministers and preachers of the said Methodist Episcopal Church, or by the annual conferences authorized by the said general conference, to preach and expound God’s holy word therein.” That, in pursuance of the said trust, a house of worship was built upon said lot for the use of the members of the Methodist Episcopal Church in the United States of America and had since been so used by them; that the members of said church, so using the same, constituted the religious society petitioning, and said society was duly incorporated on September 7, 1867; that said lot of ground and house had become inadequate and unsuitable for the purposes of the said trust, and it was for the interest and advantage of the petitioner, and of all persons interested in the trusts, that said lot should be sold freed from the trusts aforesaid, and that the purchase money be held and applied in lieu thereof and for the same purposes and trusts; that the society, the petitioner, had bought, and had had conveyed to it in fee-simple, other land in the borough of Braddock more suitable for a place of worship for its members, and was building thereon a house of worship; that its charter provided that all its property, whether real personal or mixed, should be held in trust for the following purposes and on the following conditions, to wit: “ That the corporation and its successors, and its board of trustees, shall at all times and forever permit the duly authorized ministers of the Methodist Episcopal Church of the United States, to occupy the pulpit and house of worship for preaching and expounding God’s holy word, and for executing the discipline and administering the sacraments according to the doctrines, discipline and uses of the said church; and shall faithfully appropriate all the rents, issues and profits of said property, and all the proceeds of any sale or mortgage that may be made, to the use and benefit of said church, and in accordance with the discipline and usages thereof.” The petitioner, averring further, that these trusts were substantially the same as those expressed in the Henning and Redman deed; that a majority of all the male members of the society, the petitioner, acting in accordance with a provision in its charter, had authorized the sale of the property first mentioned, at a meeting called^for that purpose and held after public notice thereof from the pulpit, prayed for a decree ordering that the lot, conveyed to the trustees aforesaid by Hen-ning and Redman, be sold in fee-simple, wholly freed from the said trusts, the purchase money to be substituted therefor as regards enjoyment and ownership, and that such purchase money should be applied toward payment for the other property, so bought by the petitioner, and the erection of the house of worship thereon. All the trustees named in the deed from Henning and Red-man were dead except John W. House, who, by writing annexed to the petition, appeared, confessed the facts therein stated, and submitted to the order of the court, praying, however, to be relieved from executing the order of sale, and nominating P. S. Todd for that purpose. Rev. Noble G. Miller, presiding elder of the McKeesport district of the Pittsburgh conference of the Methodist Episcopal Church, in whose district and charge the Sellers Chapel church was, also appeared by paper filed with the petition, approving the action of the petitioner and joining in the prayer of the petition and in the nomination of P. S. Todd as trustee to sell. Upon the reading of the petition, the court made the decree of sale prayed for, appointing P. S. Todd trustee to make the sale. On October 12, 1889, the trustee having reported a sale of the property for $10,500, and having entered security, the court confirmed the sale nisi ten days; and, on November 2d, on motion of the petitioner’s counsel, the court directed a citation to issue warning the members, ministers and preachers of the Methodist Episcopal Church in the United States of America, and the general conference and annual conference of said church, and all other parties interested, to appear on November 30, 1889, and show cause why the prayer of the petitioner should not be granted, and whj^ the decree of sale, and the decree of confirmation nisi, should not be approved, ratified and confirmed, ordering said citation to be served by publication. Service thereof was made accordingly. On November 27, 1889, Ann Redman, describing herself as a member of the Methodist Episcopal Church in the United States of America, and widow of William Redman, deceased, one of the grantors in the deed recited in the petition, and as agent of Martha G. Henning, the widow of Matthew Henning, deceased, also a grantor in said deed, and as agent of the heirs at law of said William Redman and Matthew IJenning, filed exceptions to the confirmation of the sale, objecting for the following reasons: 1. Because the said real estate is vested in said John Kerr et al., trustees, and their successors, for the use of the members of the Methodist Episcopal Church in the United States of America, for the uses mentioned in said deed; and petitioner has no title to said real estate other than what is common to all of the members of the said the Methodist Episcopal Church of the United States of America.1 2. Because petitioner has no right or authority, with or without the approval of the court, to sell said real estate, or divert the same from the uses mentioned in said deed.8 3. Because a sale of said real estate, as proposed by petitioner, would be a violation of the trust in said deed expressed, and would work a reversion of the real estate to the widows and heirs at law of said William Redman and Matthew Henning, deceased, and due and public notice thereof was given by ex-ceptants, on the day of the alleged sale of said real estate, to bidders and purchasers thereof.3 Before hearing on the exceptions, an affidavit was filed,- setting forth a copy of the minutes of “the Fourth Quarterly Conference of Braddock charge, McKeesport district, Pittsburgh Conference,” embracing a resolution, adopted August 10,1888, for the sale of the property in question in this proceeding. —After argument, the court, EwiNG, P. J., finding that all the conditions laid down in the book of discipline of the Methodist Episcopal Church had been fully complied with,' and that the exceptants had no standing to object to the sale, entered a decree overruling the exceptions,1 to 3 confirming the sale,5 and directing the making of a conveyance in pursuance thereof and that the purchase money should be substituted for the land and held upon the same trusts. Thereupon Ann Redman, for herself and as agent, etc., took this appeal, specifying that the court erred: 1-3. In overruling the exceptions.1 to 3 4. In taking jurisdiction of the proceedings. 5. In confirming the sale reported.5 1. The donors of the land have a standing in this proceeding because the sale, if sustained, will pass “ a fee-simple title, indefeasible by any party or persons having a present or expectant interest” in the premises: § 5, act of April 18,1858, P. L. 503; Yard’s Est., 15 W. N. 422. The act of 1853 is intended only to relieve against a want of power to convey in any person or set of persons, not against a lack of alienable quality in the estate itself, and does not justify a decree when exemption or immunity from sale inheres in the title: Burton’s App., 57 Pa. 220; McClurg’s Est., (Hawkins, P. J.,) 22 Pittsb. L. J. 133. This leads directly to the question, what character of estate did the trustees take under the original deed ? Eor, if it was a base fee, or a fee limited to special uses, the attempt to pass a title under the act of 1853 must fail. On this point we contend : 2. The deed being in effect a donation for a specified purpose, there could not be a diversion of the land from the purpose to which it was dedicated, and this sale in effect strikes down the consideration of the grant: McKissick v. Pickle, 16 Pa. 140; s. c. 21 Pa. 236; Kirk v. King, 3 Pa. 436; Kerlin v. Campbell, 15 Pa. 500; Brendle v. Ger. Ref. Congregation, 33 Pa. 424. The duties of the trustees are active; the trust was created for the support of a special use which extended to the whole body of worshippers of this faith throughout the country, is not confined to any particular congregation, and vested before the petitioner’s incorporation. The Sellers Chapel congregation, therefore, are not entitled to have the property sold: Latshaw’s App., 122 Pa. 142. If there could be a sale, House, the surviving trustee, would be the party to petition for it. But the fact that there are no words of inheritance in the deed, is conclusive that a fee-simple was not conveyed to the trustees : Methodist Church v. Remington, 1 W. 219; Henderson v. Hunter, 59 Pa. 335. And the publication of the citation cannot conclude the rights of parties interested, even if brought borne to them, nor supply a want of authority in the petitioner to sell. Counsel cited: (1) As to the nature of the trusts and uses upon which the property in question was held, and the alien-ability of the estate granted: Wright v. Linn, 9 Pa. 483; Mc-Kissiek v. Pickle, 16 Pa. 140; Griffitts v. Cope, 17 Pa. 96; Pickle y. McKissick, 21 Pa. 232; Barr v. Weld, 24 Pa. 84 ; Brendle y. Ger. Ref. Cong., 33 Pa. 415 ; Schier y. Church, 109 Mass. 1; Rawson v. Sch. Dist., 7 Allen 125; Brown y. Baptist Soc., 9 R. I. 177. (2) As to the necessity of words of inheritance in the deed: 4 Kent Com., 304; Villiers v. Villiers, 2 Atk. 72; Cleveland v. Hallett, 6 Cush. 403; Gould v. Lamb, 11 Met. 84; Newhall v. Wheeler, 7 Mass. 189; 2 Washburn on Real Prop., *186, 187; Doe v. Considine, 6 Wall. 458; North v. Philbrook, 34 Me. 532; Fisher v. Fields, 10 Johns. *495; Wilcox y. Wheeler, 47 N. H. 488; Attorney General v. Meeting House Proprietors, 3 Gray 1; King v. Parker, 9 Cush. 71; Brooks v. Jones, 11 Met. 191; Welsh v. Allen, 21 Wend. 147 ; Kirkland v. Cox, 94 Ill. 400; Angelí v. Rosenbuiy, 12 Mich. 241; Spessard v. Rohrer, 9 Gill 261; Wright v. Linn, 9 Pa. 433. (3) That the donors to the charity were not the grantors in the deed, but the contributors to the erection of the building, and said grantors have no standing in this case: Methodist Church y. Remington, 1 W. 219; McGinnis v. Watson, 41 Pa. 9.
139 Pa. 69Assigned Estate of Graff, Bennett & Co. (1891)
[To be reported.] 1. When lands are sold by an assignee for creditors subject to the lien of a mortgage, and the mortgagee, without being first required to proceed on his mortgage, is allowed a dividend upon his bond out of the pro needs, creditors whose dividends have been thereby reduced are entitled to be substituted, to that extent, to the mortgagee’s rights. 2. A decree of substitution cannot be made, however, so long as any part of the superior creditor’s claim remains unsatisfied, as, until then, he is entitled to the sole direction and control of his security, and of all actions, remedies or arrangements that he may desire to take thereon: Kyner v. Kyner, 6 W. 221; Forest Oil Co.’s App., 118 Pa. 138. 3. Wherefore, it is error, in awarding such dividend to the mortgagee upon his mortgage bond, to attach a condition requiring him to assign for the use of the other creditors a corresponding part of his mortgage, even though the decree provide that the part to be assigned shall be postponed to the balance of the mortgage unassigned. 4. Speaking for myself only, I am disposed to think thjit the difficulties in the way of a partial and postponed subrogation to the remedies of a partly satisfied creditor are not insuperable, and that the court in Kyner v. Kyner gave up too easily; but the rule, in the form that that case left it, is now too firmly fixed to be disturbed: Per Mr. Justice Mitchell.
139 Pa. 77Commonwealth v. Miller (1891)
[To be reported.] 1. While the continuance of a business, admitted or established to be a public nuisance, cannot be justified by the length of time it has been in operation, by the capital invested in it, or by its influence upon the prosperity of the community, yet, where the fact of the public nuisance is controverted, these matters are proper for consideration by the jury. 2. A defendant, indicted for maintaining a public nuisance, by operating an oil refinery within city limits, is entitled to have the character of his business determined, not according to any abstract principle, but in the light of all the circumstances peculiar to the business, its place and its surroundings, and their use for manufacturing purposes. 3. It was therefore error, in such case, the fact of the public nuisance being denied, to charge that it is no defence to an indictment for maintaining a common nuisance, that the business complained of has been in operation for many years, that the size of the establishment made no difference, and that it was not a defence that the business was a useful one. 4. The granting or a refusal of a request by the defendant that the jury be sent to view the alleged nuisance, is fairly within the discretion of the court; and the prevention of comments by defendant’s counsel to the jury, respecting the objection of the commonwealth to such inspection, will be reviewed only in a clear case of infringement upon counsel’s rights. 5. An indictment charging, in the same count, that the defendant on a certain date erected a nuisance and from that date continuously until the finding of the indictment maintained the same, is not objectionable on the ground of duplicity, as charging two distinct offences, but is of sufficient form to sustain a general verdict of guilty. 6. A doubt that would cause one to pause and hesitate, is, if fairly derived from the evidence adduced on the trial, a reasonable doubt, within the meaning of the criminal law; it is error, therefore, to instruct the jury, that a reasonable doubt is such as would influence or control the jurors in any of the important transactions of life.
139 Pa. 96Bair & Gazzam, Lim. v. Hubartt (1891)
1 OF ALLEGHENY COUNTY. No. 135 October Term 1890, Sup. Ct.; court below, No. 810 March Term 1889, C. P. No. 1. On February 28, 1889, Bair & Gazzam, Limited, brought foreign attachment against William Hubartt.
139 Pa. 100Stedman v. Poterie (1891)
[To be reported.] 1. Courts of Common Pleas have power to establish rules authorizing the entry of judgment for such part of the plaintiff’s demand as is not denied by the affidavit of defence, and permitting the plaintiff to proceed thereafter to issue and trial for the residue of the claim. 2. Unless the court or the parties intend by it to put an end to the action, when such a judgment is entered, under the authority of a rule of court, its amount may be liquidated and collected by execution, without barring the plaintiff’s right to proceed for the balance claimed: Brazier v. Banning, 20 Pa. 315, distinguished. 3. It seems that a court rule authorizing an interlocutory judgment for a part of a claim “ admitted or not denied,” is applicable, when an affidavit of defence as to the part lacks the legal requisites; at all events, an order of court directing such a judgment is a special rule sufficient for the purpose. 1. The execution on the interlocutory judgment will be under the control of the court, when equitable grounds for such control exist; and a judgment which has such elements of finality as liquidation of amount and capacity to support an execution, may well be held sufficiently final to sustain an appeal therefrom: Per Mr. Justice Mitchell. 5. The procedure act of May 25, 1887, P. L. 271 did not incorporate into it existing rules of court, as to entering judgment for part of a claim, so as to take them out of the control of the courts; rules on that subject old and new, are still within the control of each court in respect to its own practice: Marlin v. Waters, 127 Pa. 177, explained.
139 Pa. 111Collins v. Chartiers V. Gas Co. (1891)
[To be reported.] 1. One who bores for oil or gas is responsible for an injury to a neighboring water well, arising from the commingling by his well of salt and fresh waters percolating underground, where such injury was plainly to be anticipated, and was preventable by the exercise of reasonable care at a reasoñable cost: Collins v. Chartiers V. Gas Co., 131 Pa. 143. 2. The defendant is liable, in such case, not because, in the exercise of his own legal right, he has necessarily injured the plaintiff, but because he has injured him unnecessarily, by his neglect to adopt such reasonable precautions as might and should have been taken to protect him: Penna. Coal Co. v. Sanderson, 113 Pa. 136, distinguished. 3. Videtur: The defendant is responsible, in such case, notwithstanding the drilling of his well was let out to an independent contractor, when, though there were methods well known and in more or less common use to prevent the commingling, the contract not only did not require the contractor to use such methods, but virtually excluded his use of them.
139 Pa. 125Phillips v. Craft (1891)
[To be reported.] (а) The plaintiff, having purchased certain land in West Virginia from one Williams, refused to accept the title until the land was released from the lien of a certain deed of trust in favor of the defendant, given to secure six promissory notes, and covering that and other real estate. (б) Williams then went to the defendant, told him that the land in question had been sold, and asked him to sign a release which recited a conveyance of it to the plaintiff on a prior date. The defendant objected to signing the release, because it was general in its terms and he did not then own two of said notes. (c) Assured by Williams that the plaintiff and his attorneys knew of the ownership of those two notes, and believing that the conveyance to the plaintiff had been made, the defendant signed the release. Williams then brought it to the plaintiff who accepted the title. The land was afterward sold under the trust deed for the payment of said two notes : 1. Negligence, to be actionable, must be at least the breach of a legal duty; and, as the defendant was under no duty of diligence toward the plaintiff, having assumed no contract or other relation with him, the execution of a release apparently covering all six of the notes was not such negligence, especially after the distinct notice to Williams that it would not so operate.
139 Pa. 132Estate of Shoenberger (1891)
APPEAL BY THE PENNA. CO. EOR INS., ETC., ET AL. EBOM THE ORPHANS’ COHBT OE ALLEGHENY COUNTY. No. 114 October Term 1890, Sup. Ct.; court below, No. 131 April Term 1890, O. C. On April 24, 1890, upon the petition of the Pennsylvania Company for Insurance, etc., A. J. Antelo, Andrew Long and John M. Brownson, executors of the will of John H. Shoenber-ger, deceased, a citation was awarded directed to Samuel P. Conner, register of wills of Allegheny county, to show cause why an appeal from his order, made on April 15, 1890, that letters testamentary be granted by said register to the executors aforesaid, should not be allowed, and said order set aside. The answer of the register, filed May 7, 1890, was not exhibited in the paper-books, but from the records set out in the appendix, it appeared that S. P. Conner, the register of wills for Allegheny county, had issued a citation to the Pennsylvania Co., A. J.-Antelo and J. M. Brownson, executors, etc., to show cause why letters testamentary should not be issued upon the will of John H. Shoenberger deceased, by the register of wills of Allegheny county; that on April 3, 1890, the respondents answered that in and by the last will and testament of John H. Shoenberger, late of the city and state of New York, the respondents were appointed the executors thereof; that on January 16,1890, letters testamentary on said will were granted, by the surrogate of the city and county of New York to Alice E. Shoenberger and Alexander G. Mason, of said city and county, who had assumed and were exercising the duties thereby devolved upon them; that on January 30, 1890, an exemplified copy of the said will was duly proved in the register’s office of the city and county of Philadelphia, in the commonwealth of Pennsylvania, and letters testamentary granted thereon to tbe respondents, as appeared by a certified copy of the letters attached, and the respondents had assumed and were exercising the duties devolved upon them by said letters; wherefore, the respondents were advised that good cause was shown why letters testamentary on said will should not be granted by the register of wills of Allegheny county. It further appeared that on April 15, 1890, Samuel P. Conner, register, etc., of Allegheny county, upon hearing had and testimony taken, found that personal estate of the testator, on deposit in Allegheny county banks, interests in partnerships, stocks in corporations, and mortgages on real estate, all in Allegheny county, amounted in value to $470,846.82; that there was also personalty of said estate in Pennsylvania, outside of Allegheny county, amounting in value to $47,580.10; that the real estate of the testator in Pennsylvania was situate in the counties of Allegheny, Washington, Huntingdon, Fayette, Blair and Centre, but the greater portion in value was in Allegheny county; that there was neither real estate nor personal estate of the testator in Philadelphia county; that “ under the undisputed facts, jurisdiction to issue letters in Pennsylvania, is exclusively in the register of Allegheny county, and the act of the register of Philadelphia county in issuing letters is void and of no effect,” and that the register, therefore, ordered that letters testamentary be granted to the Pennsylvania Co., etc., and A. J. Antelo, of Philadelphia, and Andrew Long and John M. Brownson, of Pittsburgh, “upon their appearing within ten days and qualifying according to law; and upon the failure of said executors so to do, that letters of administration, with the will annexed, be then issued to some other fit person or persons.” The matter was set down for hearing upon the petition and answer, and, after argument thereof, the court, Over, J., on May 14, 1890, filed the following decision: FINDINGS OF FACT. John H. Shoenberger, a resident of New York city, died testate, on November 12, 1889, leaving to survive him a widow but no issue. He left a large estate, and appointed his wife, Mrs. Alice Shoenberger, executrix, and A. G. Mason, executor of his will, relative to that portion situated in New York; and the Pennsylvania Company for Insurance on Lives, etc., of the citjr of Philadelphia, Andrew Long, of Pittsburgh, J. M. Brown-son, of Pittsburgh, and Anthony J. Antelo, of Philadelphia, executors and trustees of that portion in the states of Pennsylvania, Ohio, Kentucky and Illinois, “ and of any property that maj*- be transferred to them,” by the New York executors. The principal part of his estate in Pennsylvania is situated in this county, consisting of $470,846.32 of personalty, viz., Deposits in banks, interests in the firms of Shoenberger & Co. and Shoenberger, Speer & Co., stocks, bonds and mortgages; and real estate of the value of $472,000. He devised valuable real estate in the 17th ward, Pittsburgh, and bequeathed a direct legacy of $550,000, and a residuary legacy of $250,000 to his Pennsylvania executors and trustees, for the erection and endowment of a hospital. The will was probated in the city of New York, and an exemplification of the record being presented to the register of wills of Philadelphia county, he issued letters testamentary thereon. An exemplification was subsequently filed for record with S. P. Conner, Esq., the register of this county. He being of opinion from an inspection of the will, that the principal part of the testator’s estate in Pennsylvania was in this county, and it appearing to be subject to a collateral inheritance tax, issued a citation upon the executors to show cause why they should not appear before him and take out letters; and, having found from the testimony adduced at the hearing that the principal part of the estate was in this county, he decreed that he would issue letters to them upon their applying within ten days and qualifying according to law, and that upon their failure so to do, letters, with the will annexed, would be issued to some other fit person. From this decision of the register the executors have taken this appeal. OPINION. The sixth section of the act of March 15,1832, P. L. 136, provides that “ letters testamentary and of administration shall be grantable only by the register of the county within which was the family or principal residence of the decedent, at the time of his decease, and if the decedent had no such residence in this commonwealth, then by the register of the county where the principal part of the goods and estate of such decedent shall be.” The twelfth section of the same act provides that “ copies of wills and testaments proved in any other state or country, according to the laws thereof, and duly authenticated, may be offered for probate before any register having jurisdiction, and proceedings thereon may be had with the same effect, so far as respects the granting of letters testamentary, or of administration, with the will annexed, as upon the originals.” These two sections are to be construed together, and it is evident that the register having jurisdiction under the twelfth, to admit to probate a copy of a will of a deceased non-resident and issue letters thereon, is the register of the county in which the principal part of his goods and estate are situated, to whom the sixth section gives jurisdiction to issue letters. There can be no doubt then, under the facts of this case, that this jurisdiction is vested in the register of this county. It is contended, however, by the appellants, (1) that, as the register of Philadelphia county has issued letters, the presumption is that he found that the principal part of the estate was in that county; that his decision can only be reviewed on appeal therefrom, and cannot be attacked collaterally; and (2) that the register of Allegheny county had no authority on his own motion to cite the executor to take out letters. 1. The jurisdiction of a register of wills in this state is limited to the probate of wills and granting of letters on the estates of decedents residents of his county; and, as to nonresidents of the state, to those the principal part of whose estate is situated in the register’s county. It is therefore limited and special: Wall v. Wall, 123 Pa. 545; and, if the facts necessary to give such a tribunal jurisdiction do not appear on the face of its proceedings, and are not proved aliunde, the whole will be invalid, and may be set aside as a nullity when called in question in the course of a collateral controversy: Cupps v. Durbin, 1 Sm. L. C. 1105; Camp v. Wood, 10 W. 118; Tor-, ranee v. Torrance, 53 Pa. 505. And in Devlin v. Commonwealth, 101 Pa. 276, it was said that the decrees of a register “ are final and conclusive until reversed by superior tribunal, when under the statute, he has jurisdiction; but, if made without jurisdiction, they are worthless and void, and may be impeached in any collateral proceedings.” There is no averment or finding, in the record of the proceedings before the register of Philadelphia county, that the principal part of the estate was in it. He evidently assumed jurisdiction without investigating that question. It was a jurisdictional question, and the record should show that it was decided affirmatively before the letters were issued. Had he ■passed upon it, his decision, no doubt, could have been reviewed only on appeal; but, until it was decided in the affirmative, his jurisdiction to issue letters did not attach, and his action in issuing them was, under the statute, without jurisdiction and liable to be impeached in a collateral proceeding. And, as it appears from the evidence that the jurisdiction is vested in the register of this county, the letters are void and of no effect: § 5, act of March 15, 1882, P. L. 136. 2. It is the duty of registers of wills, as agents of the commonwealth, to collect the collateral inheritance tax in all estates within their jurisdiction subject to it. The first step is to have letters issued; and the commonwealth is undoubtedly interested in having estates subject to the tax legally administered. The first section of the act of March 22,1841, P. L. 99, makes it the duty of the register, whenever any executor or administrator of a decedent, whose estate is subject to the tax, shall have neglected to file an account within the period allowed by law, to cite them to file one. As this act would be nugatory, where letters were not taken out, if, on his own motion, he could not also cite persons interested to take them out, he surely has this power; and, in case of their refusal, and no creditor applying by the letter and spirit of the statutes, he could grant the letters to any fit person at his discretion : Frick’s App., 114 Pa. 34. That case seems to be directly in point. There, it was claimed that the decedent’s domicile was in Massachusetts, and letters were issued there. Ancillary letters were taken out in this county, where his principal estate was located. Subsequently, the register of Fayette county, on his own motion, granted letters to H. C. Frick, a stranger. He applied to this court to have the ancillary letters vacated, which was done. The Orphans’ Court of Fayette county then vacated the letters issued to Frick; he appealed; its decree was reversed, and it was held that the register, having jurisdiction, rightfully granted the letters to Frick, and that it was proper the register should act promptly. The appeal is dismissed at the costs of the appellant. Thereupon, the petitioners took this appeal, specifying that the court erred: 1. In holding that the action of the register for Philadelphia city and county, in granting letters testamentary to the appellants, was void for want of jurisdiction. 2. In sustaining the action of the register for Allegheny county, and in dismissing the appeal from the same. 3. In dismissing the appeal at the costs of the appellants. 1. The error of the register and the court below was in treating the case of a will, admitted to probate in another state, as if it came within § 6, act of March 15, 1832, P. L. 136. That section, in terms and spirit, is applicable to the case of a resident of this commonwealth. If the decedent, in such case, had a family residence, then the register of the county of the residence would have jurisdiction; if without such residence, then the register of the county in which the larger part of his estate was, would have jurisdiction. But, it is § 12 of the act which relates to the case of a non-resident whose will has been admitted to probate in another state, and that section contains nothing that restricts the power of granting letters testamentary to the register of the county in which the larger part of the estate of the testator may happen to be found. 2. Even, however, if the court below was right in treating § 6 of the act as applicable to this case, yet the register for Philadelphia county, in granting the letters, was acting in a judicial capacity, and his decree or order in the premises cannot be attached collaterally. The presumption that he acted rightly, is an indisputable one in every other county in the state. Otherwise, the spectacle might be presented of every register in the state, of his own motion, taking evidence and declaring his own jurisdiction to be the sole one. Conceding, for the sake of the argument, that the question of the comparative amount of the estate, as between several counties, was jurisdictional, still, to avoid confusion and unseemly contests, the register first acting must be deemed to have acted duly, until and unless he is corrected on a direct appeal. 3. It was thought, however, that a valid distinction could be made in the present case, because the record of probate in Philadelphia did not affirmatively show that the register took evidence on the subject of the locality of the larger portion of the estate. But § 5, act of March 15, 1832, P. L. 186, does not provide that the register shall preserve the evidence on which he acts. And grant, that when a record discloses that a court has no jurisdiction, then its decision is a nullity and can be impeached collaterally, yet, in the present case, the register of Philadelphia plainly has jurisdiction to inquire into the facts, and, this being so, his decision must stand until overturned on appeal. Frick’s App., 114 Pa. 31, was a case of intestacy, and the jurisdiction of the register of Fayette county was upheld because the intestate had his domicile in that county ; and, in Wall v. Wall, 128 Pa. 549, the want of jurisdiction was apparent on the face of the record. Moreover, the creation of two separate, co-ordinate administrations upon the same estate, is unknown in our practice, and an irregularity: Brubaker’s App., 98 Pa. 21. 1. The fact having been established that the principal part of the goods and estate of the decedent is in Allegheny county, the plain provisions of §§ 5, 6 and 12, act of March 15, 1832, P. L. 136, vest exclusive jurisdiction to admit to probate the copy of the will and issue letters thereon in the register of Allegheny county, and make the act of the register of Philadelphia county void and of no effect. The argument that § 12 introduces a different system with reference to wills of nonresidents is without force, for that section provides only that such wills may be offered for probate before any register “ having jurisdiction,” and §§ 5 and 6 settle beyond all question what register shall have jurisdiction. 2. The point that, the register of Philadelphia county having assumed jurisdiction, his action cannot be attacked collaterally, is opposed to the authorities, which hold without exception that the act of a court or officer of limited jurisdiction is not conclusive and may be inquired into collaterally. The proceedings of probate courts are not according to the course of the common law; their jurisdiction is special and limited: 3 Redf. on Wills, 56; Griffith v. Frazier, 8 Cranch 9; Devlin v. Commonwealth, 101 Pa. 273; Wall v. Wall, 123 Pa. 545. And, in Cupps v. Durbin, 1 Sm. L. C. 816-819, it was held that when a court or officer exercises a limited and special jurisdiction, all the facts necessary to support that jurisdiction, in any particular case, must appear of record; otherwise, the proceedings are not merely voidable but void. This has been approved in Camp v. Wood, 10 W. 118, and Torrance, v. Torrance, 53 Pa. 505. , The ease at bar is ruled by Frick’s App., 114 Pa. 29.
139 Pa. 143Heilman v. Weinman (1891)
(a) The plaintiff, operating a coal mine on the nortli side of a road, under a written lease from the defendant, made a parol agreement with the latter that if he could find coal on the south side of the road, the defendant would lease to him eight or ten acres thereof, for as long as it would last, at a certain rental. (b) The plaintiff having developed coal on the south side of the road and opened and prepared a pit, and a platform and road for the working of it, on the faith of the parol agreement, the defendant then refused to execute the lease and ordered the plaintiff to cease work, whereupon the latter sued for damages: 1. These facts, being found by the jury upon evidence properly submitted, the parol contract was an independent agreement, upon the breach of which the plaintiff was 'entitled to recover damages to the value of his work done: moreover, the case was unaffected by the statute of frauds, and no change of the written contract by parol was involved.
139 Pa. 149Graham v. Pennsylvania Co. (1891)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY. No. 139 October Term 1890, Sup, Ct.; court below, No. 402 December Term 1888, C. P. No. 1. On October 23, 1888, William S. Graham and Maria E.' Graham, his wife, in right of said wife, brought trespass against the Pennsylvania Company, operating the Pittsburgh, Fort Wayne & Chicago railwaj1-, to recover damages for personal injuries received by Mrs. Graham and alleged to have been caused by the negligence of the defendant company. Issue.- At the trial on April 1,1890, it was shown that the arrangement of the Federal street station, Allegheny city, where Mrsi Graham received her injuries, was as follows : Along the track upon which Mrs. Graham arrived, were two platforms, together about twentjr-three feet wide, the two covered with a shed. Next the track was a platform three feet ten inches wide (as given in the appellant’s paper-book,' four feet nine inches, as given in that of the appellees), extending the length of the train eastward towards the exit gate. This platform was nine inches below the lowest car step. On the other edge of it from the train, was a descent of nine inches to the main platform, which was about nineteen feet wide extending across to the north main track. The posts of the shed, on one side, were at the inner edge of the narrow platform ; on the other, about twelve feet, perhaps, to the south. The shed was lighted by electric lights of 50-candle power, suspended under the comb of the roof. Mrs. Graham testified that on the evening of February 6, 1888, about 8 o’clock, her train reached the station, when she alighted and with a basket on her arm started east toward the exit; that, after walking about twelve feet, “ edging ” to the right to get within the line of the posts, she fell and sustained severe injuries; that she had frequently stopped at Federal street station from defendant’s trains, but never befdre had she alighted upon this raised platform; and she could not imagine at first what caused her to fall, as she supposed she had alighted upon the main platform, until she looked about her and observed the descent from the narrow platform to the other, and that was the first she knew of the offset there. William Graham, a son. of the plaintiffs, called on their behalf: Q. State whether, in your judgment, from your observation there, your knowledge of the platform, that is a safe platform upon which to alight from trains ? Objected to, as incompetent and irrelevant. By the court: Objection overruled; éxception.1 A. I think it is an unsafe platform to arrive on, for the light shines toward you, and the elevation is in front of you, and the light shining against this elevation would make the platform appear one, unless you were looking for it; unless you were warned against it. M. Jacob, called for the plaintiffs, testified that he was an architect, had -had experience in building railroad stations and platforms, was once in the employ of the Fort Wayne railway, and that he had examined the construction of the platform at Federal street station, at the point where Mrs. Graham was injured. Q. Please state whether, from what you observed there of the construction of this platform, you would regard it as a safe place for passengers to land ? Objected to. By the court: Objection overruled; exception.8 Q. Answer that question, whether or not you would consider that a safe place for the passengers to land ? A. In my personal opinion, I would unhesitatingly sa3r that the platform, from the way it is built, is not only not safe, but it is actually a trap, from the very fact that it is raised nine inches above the level of the ground, without any side protection. People walking towards the front are very apt to make the least step sideways and go down. Such platforms when meant to be raised above a common level of the ground, must be — Objected to. Q. Give your reasons for regarding them unsafe; you say a person walking towards the front, the least step sideways would throw them down? A. Yes, sir, off the level on which he stands. Other witnesses for the plaintiffs were permitted to testify under objection and exception, to the same effect. At the close of the testimony, the court, Stowe, P. J., charged the jury, in part, as follows: That brings us to this question that we have before us. Here was an offset. Here was a place that if a person fell over it he might get hurt. This lady did fall over it and was hurt. Now, was she guilty, under the circumstances, coming up at that time of night, without knowledge of this platform there, of a want of ordinary care; or, was she doing that which persons would ordinarily be expected to do, and ordinarily would do, under the same circumstances ? The evidence shows these posts were less than four feet from the car. She, with her basket, could not very well get along on the narrow platform with safety, if the train would move. It would be in danger of dragging her, throwing her down, and the necessary and/safe way would be to step off the platform. Therefore, she had a right to go out towards the center of the main platform. She did go there, or intended to go there, and in doing that fell. Now, was she bound to expect, under the circumstances, that there was a place there that would cause her to fall, an offset? If the evidence satisfies you that such would be the ordinary conclusion, observation and experience of people, then she has been guilty of negligence. We have been asked to say to you on the part of the plaintiff: 1. If the jury find from the evidence that the plaintiff was a passenger on the defendant’s train and arrived at the station of the defendant company in Allegheny, on the night of February 6, 1888, and after alighting from the train, was walking along the platform of the company towards the exit, and while thus walking fell and received the injuries complained of, and such fall was caused by any negligence of the company, in the construction of the platform or the lighting of same, then the verdict should be in favor of plaintiff. Answer: This point is affirmed, with the qualification that you do not find the plaintiff herself guilty of some concurrent negligence. That is understood. 2. The defendant company, being a common carrier for hire, was bound to use the utmost skill and foresight in the construction of the platform and the lighting of same; and, if the platform upon which plaintiff was injured, was not constructed and lighted in such manner as the most prudent and careful persons are accustomed to use, such want of prudence and care would render the defendant guilty of negligence. Answer: This point is affirmed. It does not mean, gentlemen, that the very highest and the utmost amount of skill and care should be used, but only that amount of skill that persons are accustomed to use, who exercise the greatest degree of skill that is usual. It does not intend to put the company in the position of insurers, but of simply compelling it to use the utmost degree of skill that is usual under circumstances of a like nature, to guard against injury to passengers. 3. The evidence in this case being uncontradicted, that the platform upon which plaintiff was injured, was composed of two parts, to wit, an upper or higher platform upon which plaintiff alighted when she stepped from the car, this platform being about four feet in width and extending in length towards the exit from the station where it sloped gradually to the lower level, and a lower platform about nine inches below the upper one, it is a question of fact to be determined by the jury, from the testimony in the case and in view of their own experience, whether such a platform is constructed with the proper skill and foresight to prevent accidents to persons alighting from the cars upon the same; and, if the jury should find that the platform is not so constructed, then the defendant is guilty of negligence, and would be liable to the plaintiff for the injuries received by her. Answer: This is affirmed, subject, of course, to the proposi-sition that the plaintiff was not guilty of concurrent negligence. The defendant’s counsel has asked me to say: 1. The plaintiff’s right to recover in this case, if any, depends upon the liability of the defendant to respond in damages for its negligent acts; and the burden is upon the plaintiff to convince the jury, by the fair preponderance of testimony, that the plaintiff’s injury was caused by negligence of the defendant. Answer: This is affirmed. By way of explanation, I may say, that if the jury are satisfied from all the testimony, that this was a dangerous place to be used as an exit for passengers from the car, one that ought not to have been there, that constitutes negligence and will make the defendant liable. 2. The duty of the defendant company is to use ordinary care in the construction of its platforms; and, if the jury believe that the platform on which the plaintiff fell was reasonably safe, and one which could be used, without danger, by a passenger exercising ordinary care, tlien their verdict should be for the defendant. Answer: This point is refused.3 3. If the jury believe that the alleged defect in the platform was a patent one, that is, open and visible, and that there was sufficient light for a person using ordinary care to see and avoid the danger, then their verdict should be for the defendant. Answer: We cannot say, that, because the offset in the platform was open and visible, there being sufficient light to see it by a person exercising ordinary care, the plaintiff cannot recover, without explaining to the jury what constitutes ordinary care under the circumstances of this case. The question here is, did the plaintiff use or exercise ordinary and proper care on the occasion in question ? Here you will consider the facts in evidence. She says she did not know of the offset in the platform. The evidence shows such an offset is not usual in platforms used for the debarking of passengers from railway cars, but, on the contrary, indicates that the usual method is to have the platforms level after they were reached. Passengers are not bound to anticipate and look out for irregularities or offsets which might cause one to fall. Under ordinary circumstances, a passenger has a right to expect an ordinary and usually level and safe exit to the depot or station after he has left the cars, and has, therefore, a right to go along the platform exercising only such care as would be reasonable and proper under circumstances he was bound to anticipate. With this explanation the point is affirmed.4 4. If the jury believe from the evidence that the platform on which Mrs. Graham fell was a useful device to assist passengers to enter and alight from trains, and that the step down which Mrs. Graham fell was of a common and usual height and properly lighted, their verdict should be for the defendant. Answer: This, and the point I have refused before, are answered together. This point is refused. It is for the jury to determine, under all the evidence, whether, even if the device was useful, as suggested, it was constructed and arranged in such a manner as was safe and proper, as a means of exit from trains stopping at the station. It might be a very useful device, extremely useful; but the question is not, was it simply useful, but was it safe as arranged in this case. 5. If the jury believe from the evidence that the distance from the lowest step of a car to the ground is about seventeen inches, and that that distance is greater than children or women can with reasonable comfort and safety step, then it is the duty of the defendant to provide some intermediate step for them at stations; and, if the jury believe that the narrow raised platform or step from which Mrs. Graham fell, was placed there for that purpose, and was such a device as could be used'by a passenger exercising ordinary care, without injury, then their verdict should he for the defendant. Answer: This point is refused. We think the proposition is too broad. It means, if I understand it, that if one using ordinary care could use the platform without injury, the plaintiff cannot recover. This would seem to say, if affirmed, that because one exercising due care was not hurt, therefore, one who was hurt did not exercise due care, proper care, which we think does not follow, either as a matter of fact, or as a principle of law. I may be exercising due care and may be getting along perfectly well, because I may see the danger, and if I see it I am bound to expect it. If I do not, and fall down, I am nob exercising due care, because I know it is there. You do not know it is there, and you fall down, it may be due care. The thing I do would be negligence in me, and yet due care in you.5 The jury returned a verdict for the plaintiff for $8,000. A rule for a new trial having heen discharged, judgment was entered, when the defendant took this appeal, assigning for error: 1, 2. The admission of plaintiffs’ offers.1 8 3-5. The answers to the defendant’s points.3 to 5 1. The question at issue was whether the platform provided by the defendant was so constructed that it could be used by passengers, by the exercise of ordinary care on their part, without injury. There was involved in the case no question of any particular technical knowledge, with reference to the platform. .It was a plain, ordinary contrivance, of which any juror of ordinary knowledge was competent to judge, when put in possession of the facts. Having- the location, the distance of this offset from the train, the height of the offset, and the width of the platform below, the jury were as competent to pass upon the fact whether it was dangerous or not, as upon a like question connected with a step in a sidewalk or pair of stairs. The offers objected to were therefore inadmissible: Starkie on Ev., Shars. ed., 96, 176; 1 Greenl. Ev., § 440, n. 4 ; 1 Phillips, Ev., 778; Franklin Ins. Co. v. Graver, 100 Pa. 278; Ramadge v. Ryan, 9 Bing., O. S., 388 ; New Eng. Glass Co. v. Lovell, 7 Cush. 321; Landeford v. Ballou, 8 Allen 408; Connell v. Insurance Co., 59 Me. 582; Garisk v. Railway Co., 49 Mo. 274. 2. While it is the duty of a railroad company to keep its platform and approaches safe and convenient for the ingress and egress of passengers to and from its cars, the rigor of the rule which requires it, out of considerations of public policy, to exercise the highest possible diligence for the benefit of the passenger, while in the actual progress of its journey, and holds it responsible for the slightest defect in its machinery, track and appliances, is reasonably relaxed with respect to its platform and approaches. With respect to these, it is held to that reasonable degree of care for the safety and protection of its patrons, having regard to the nature of its business, as is demanded of individuals upon whose premises others come by invitation or inducement for the transaction of business: More-land v. Railway Co., 141 Mass. 31; Thompson on Carriers, 104. And if the jury found “ that the distance from the car step to the platform was greater than women or children could with reasonable comfort and safety step,” then, under the doctrine of Delaware etc. R. Co. v. Napheys, 90 Pa. 135, it was the duty of the company to provide the intermediate step, and if it was such as could be safely used with ordinary care, the company was guilty of no negligence in erecting it. 1. The witnesses whose testimony was admitted, under objection, were not called and permitted to testify as experts. They did not testify as experts at all. Before they were permitted to give their judgments, they testified that they were familiar with the platform from daily use. They knew the manner of its construction, the situation of the offset, and of the row of posts; the location of the lights and the manner in which the light would strike the eyes of persons descending from the car; the location of the exit from the station, and the course passengers would take to reach the exit; and, upon showing their knowledge of all the facts, théy were permitted to give their judgments. The question is settled by the ruling in Beatty v. Gilmore, 16 Pa. 463; and Franklin Ins. Co. v. Gruver, 100 Pa. 273, does not establish a different doctrine. 2. Beatty v. Gilmore, has been followed in Amer. Steamship Co. v. Landreth, 102 Pa. 135 ; Altoona v. Lotz, 114 Pa. 245 ; Nanticoke Bor. v. Warne, 106 Pa. 374; Minnequa Imp. Co. v. Coon, 10 W. N. 502. And the rulings in other states are not in conflict: Potter v. Pequonnoc Co., 17 Conn. 249; Commonwealth v. Sturtivant, 117 Mass. 122; Lund v. Tyngs-borough, 9 Cush. 36; Kellehu v. Keokuk, 60 la. 473; Alexander v. Mt. Sterling, 73 Ill. 366; Spear v. Commissioners, 113 Ill. 632; International R. Co. v. Klaus, 64 Tex. 293 ;• Railroad Co. v. Jarrard, 65 Tex. 560; Bridge v. Railroad Co., 25 S. C. 26; Turnpike Co. v. Carrell, 66 Md. 431; Hanna v. Barker, 6 Col. 303. 3. While there seems to be some difference in the cases as to the relative duties of railroad companies and passengers, when the latter are upon trains and when upon platforms and approaches, no case holds a railroad company to a less degree of care than the rule laid down in the present case. The cases all hold that it is the duty of the company to. see that the approaches to the station are reasonably safe to the passenger: Patterson’s Rju Acc. Law, §§ 5, 8, 208, 221; Shear. & Redf. on-Neg., §§ 63, 507; McDonald v. Railroad Co., 26 la. 154; Chicago etc. R. Co. v. Wilson, 63 Ill. 167. In Pennsylvania, no distinction has been made as to the degree of care required: Peana. R. Co. v. Zebe, 37 Pa. 420; Gillis v. Railroad Co., 59 Pa. 129, 132. The only distinction ever drawn in this state is as to the burden of proof: Hayman v. Railroad Co., 118 Pa. 508. And the court could not say, in answer to the defendant’s fifth point, that because others who .exercised due care were not injured, therefore Mrs. Graham could not recover: Longman v. Railroad Co., 19 C. B., N. S., 183; Dickson v. Hollister, 123 Pa. 421; Phil. etc. R. Co. v. Hagan, 47 Pa. 244.
139 Pa. 163Strawick v. Munhall (1891)
1 OE ALLEGHENY COUNTY. No. 147 October Term 1890, Sup. Ct.; court below, No. 585 December Term 1889, C. P. No. 1.
139 Pa. 168Estate of Sheehan (1891)
[To be reported.] 1. In the distribution of a decedent’s estate, though the evidence as to the light of a claimant to participate may be such as to authorize an issue, yet, where none is demanded and the parties prefer the decision of the court upon the facts, the finding of the court must be given the same effect as the verdict of a jury. (a) The evidence of a claimant, as to her identity as an heir at law of the decedent, was circumstantial merely, relating to three subjects, to wit, early recollections of the claimant, family resemblance, and a birthmark, and was met by the direct evidence of a witness examined before the court filing the adjudication : 2. The burden of proof being upon the claimant, and the evidence before the Orphans’ Court being fully sufficient to submit to a jury and to sustain a verdict against the claim made, the finding of the court against the right of the claimant to participate as an heir at law, would not be disturbed.
139 Pa. 183Augerstein v. Jones (1891)
[To be reported.] 1. In an action to recover damages for injuries received by an employee by means of the breaking of machinery supplied him to work with, the fact that the accident occurred and that it was possible to prevent it, is not the legal test of liability for negligence on the part of the employer. 2. The rule of duty on the part of the employer is, not that he must provide machinery such as will either insure the employee against injury or be of the very best and newest device obtainable, but such as is ordinarily in use and reasonably safe for the work to be done. 3. Where an employee was injured by the bursting of an emery wheel operated by him, not shown to be defective or constructed out of the usual way, it was error to charge that if the accident could have been prevented by the adoption of a device which was not adopted, the employer was guilty of negligence. 4. Where specifications of error do not set out the testimony alleged to have been erroneously admitted or excluded, or, where the record presented does not show that exceptions were taken and sealed to the admission or refusal of the offers, they cannot be sustained on appeal.
139 Pa. 193McGibbeny v. Jefferson Gas Co. (1891)
1 OE ALLEGHENY COUNTY. No. 150 October Term 1890, Sup. Ct.; court below, No. 136 July Term 1890, E. D., sur No. 474 April Term 1889, A. D. C. P. No. 1.
139 Pa. 195Butler v. Pittsb. & B. Ry. Co. (1891)
139 Pa. 198Spencer v. Jennings (1891)
2 OE ALLEGHENY COUNTY. No. 157 October Term 1890, Sup. Ct.; court below, No. 811 April Term 1884, C. P. No. 2. To tbe first Monday of March, 1884, an action of ejectment was brought by John Spencer, and others, against Nicholas Freichtel, to recover a tract of 115 acres in Plum township. Subsequently, John F. Jennings was brought in as the real defendant, and owner of the land. Issue.
139 Pa. 201Huckestein v. Kelly & Jones Co. (1891)
1 OP ALLEGHENY COHNTY. No. 83 October Term 1890, Sup. Ct.; court below, No. 73 June Term 1889, C. P. No. 1. On March 15, 1889, a summons was served in assumpsit by John and Henry Huckestein, trading as Huckestein & Co., against the Kelly & Jones Co. Issue.
139 Pa. 207Latimer v. Groetzinger (1891)
[To be reported.] (a) In a lease at a certain rental payable monthly, the lessees covenanted that during the term they would not engage in a certain business on the premises, “ under a penalty of $10,000, to be paid.in the nature of rent, in addition to the amount above mentioned, in equal monthly instalments at times of payment of the rent aforesaid: ” 1. The covenant not to engage in the prohibited business, was a mere personal covenant on the part of the lessees; and that to pay the penalty, was an engagement to pay, not for the use of the demised premises, but for the violation by the lessees of their said personal covenant. 2. The right of distress is incident only to that which is strictly rent; it cannot be implied as to that which is not rent. There being no express stipulation for the right to distrain for the penalty, when payable, the right could not be exercised by the landlord to enforce its payment.
139 Pa. 213Bailey v. Pittsb. Coal R. (1891)
APPEAL BY ¥M. VANKIRK ET AL. EROM THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY. No. 159 October Term 1890, Sup. Ct.; court below, No. 488 September Term 1886, C. P. No. 1, in Equity. On September 1, 1886, W. F. Bailey filed a bill in equity against the Pittsburgh Coal Railroad Company, J. F. Dravo, R. B. Brown, Wm. Vankirk, C. Trautman, J. G. Robinson, Geo. Trautman and W. H. Aldred, averring : That defendant company was incorporated under the railroad act of April 4, 1868, P. L. 62, with a capital of $300,000, in shares of $50 each. That the individual defendants were subscribers to its stock, each 300 shares, except Dravo, Brown and Vankirk, who each subscribed 500 shares. That Jos. N. McCreery, on May 12,1886, at No. 748 September Term 1885, obtained judgment against said company for $560, and at June Term 1886, issued a fieri facias which was returned nulla bona, and that the judgment had not been paid. That on June 2, 1886, said judgment was assigned to W. F. Bailey. That said company had no assets except stock subscriptions, and that no subscriber had paid over ten per cent on his stock, and the board of directors had failed to call in the balance. The prayers of the bill were: 1. For a receiver to collect and receive from defendants their unpaid stock subscriptions. 2. That defendants pay said receiver the amount due and unpaid by them, or so much as would satisfy debt and costs. 3. That out of the moneys paid in, the plaintiff may have satisfaction. 4. General relief. The individual defendants demurred, because: (1) The bill was not filed on behalf of the plaintiff and other creditors of the company who might see fit to join therein. (2) The plaintiff averred no request to the company, its directors or officers, to collect any alleged balance on stock subscriptions. (3) The plaintiff had a plain and adequate remedy at law. (4) The bill joined only the holders of 2,700 shares out of 6,000 shares. (5) On its face, the bill showed no necessity for a receiver, and no reason why the company itself, its directors or officers, should or would not collect the balance of stock subscriptions on proper proceedings. On June 14, 1887, the foregoing demurrer was overruled, and the defendants ordered to answer. Subsequently, the defendants, C. Trautman, Geo. Trautman, Brown, Aldred, Van-kirk and Dravo, filed answers averring: That plaintiff could not maintain his bill, because on its face it appeared he had no equity, and he did not join all the subscribers to the stock; that, though Jos. N. McCreery obtained judgment, there was no money justly due him, arid on a fair hearing that could be made to appear; and the averment of the bill that the com-party bad no assets except stock subscriptions was denied. No answer was filed on behalf of the railroad company. On November 30, 1887, issue having been joined by replication filed, the cause was referred to Mr. W. L. Ohalfant, appointed examiner and master. On December 17, 1887, E. P. Kearns, Daniel Risher and M. L. McClure severally presented petitions averring that they were creditors of the defendant railroad company, each stating the amount and character of his claim, and praying to be allowed to become a party plaintiff in the bill. It was so ordered.* On the same day, the individual defendants presented- a petition setting out that injustice would be done by granting the prayer of said petitioners unless all the subscribers to the stock of the company were made defendants; stating the names of the subscribers to the stock and the number of shares subscribed for by each, but denying any admission of liability; and praying that, if permission were given to the said petitioners to join as plaintiffs, it 'should be only on condition that all the subscribers to the stock were joined and made defendants. Thereupon, it was ordered that the subscribers, whose names were given, should be made defendants as prayed for. Many of said subscribers so added then appeared by counsel. No amended bill was afterward filed; nor, after Kearns, Risher and McClure were added as plaintiffs, was there any amended answer filed by the original defendants; nor, was there any replication filed by Kearns, Risher and McClure to the answers already filed. On September 22,1888, the master filed a report, finding the names of the defendants who were subscribers to the stock of the coal railroad company and the number of shares held by each; that the par value of the stock was f50 per share, and but ten per cent thereof had been paid in, leaving a balance due on each share of $45; that the defendant company was indebted to Bailey, assignee of McCreery, in the sum of $560, with interest from April 7, 1876, and the costs of the judgment, etc.; to Daniel Risher, including interest, in $1,786.05; to M. L. McClure, $57.81, with interest from November 2, 1883; to E. P. Kearns, in $1,000, with interest from December 31, 1882. The master, therefore, recommended a decree in accordance with the prayers of the bill, and that a receiver be appointed to collect the amounts found due by the defendants to the respective plaintiffs. Exceptions having been filed by the defendants to the findings of the master, inter alia, as to the validity and proper amount of the plaintiffs’ claims, after argument thereof before the court in banc, an order was made referring the report back to the master, that he should take “ an account of the several amounts due the respective plaintiffs in the bill, as also the amount of the subscriptions of each of the said defendants, the amount thereof unpaid, and the pro rata share which each may be decreed to pay to the said plaintiffs, respectively.” On July 8, 1890, a supplementary report having been filed by the master in the manner directed, and exceptions thereto argued and dismissed, a final decree was entered appointing Mr. W. L. Chalfant receiver of the defendant railroad company, and adjudging that John F. Dravo, R. B. Brown, Wm. Vankirk, W. H. Aldred, and other defendants, should pay severally certain sums for which they were found liable as subscribers to the defendant company’s capital stock, with interest from March 17, 1890, the same to be distributed among the creditors of the defendant company in accordance with the schedule reported by the master in his súpplemental report; providing further for the payment of the master’s fee, the costs, and commissions of the receiver.1 Thereupon, Wm. Yankirk, R. B. Brown, John F. Dravo and W. H. Aldred took this appeal, specifying that the court erred: 1. In entering the foregoing decree.1 2. In committing the case to a master, and confirming his report and the decree recommended; in this, that said case was not at issue as against the Pittsburgh Coal Railroad Company. 3. In. confirming the said report and decree recommended, in so far as the claims of Kearns, Risher and McClure are concerned ; in this, that no issue was ever made up as between them, or any of them, and the said defendants, or any of them. Admitting that the capital stock of a corporation is a trust fund for the benefit of all its creditors in the event of insolvency: Lane’s App., 105 Pa. 49, counsel denied the right and necessity of a court of equity to undertake the determination of a disputed claim, citing North Penna. Coal Co. v. Snowden, 42 Pa. 488. In no event could the decree here be sustained, as no account had been taken of the amount of the debts of the corporation : Bell’s App., 115 Pa. 88. Counsel cited: Lane’s App., 105 Pa. 49; Bell’s App., 115 Pa. 88.
139 Pa. 218Ettinger v. Jones (1891)
2 OP ALLEGHENY COUNTY. No. 162 October Term 1890, Sup. Ct.; court below, No. 464 October Term 1888, C. P. No. 2. Held: to some extent, to have understood what she was doing and with whom she was dealing. When a man or a woman is deceived by another man or woman by a lie, spoken or acted, it is the fault of the liar for that time.
139 Pa. 223Kline v. McCandless (1891)
1 OE ALLEGHENY COUNTY. No. 166 October Term 1890, Sup. Ct.; court below, No. 248 September Term 1889, C. P. No. 1. To the first Monday of August, 1889, Karl Kline brought trespass against Ales. IE. McCandless, sheriff, and Joseph Huffnagle, to recover damages for the seizure and sale of four horses, as the property of George Kline, at the suit of said Huffnagle, the plaintiff claiming the horses as his property. Issue.
139 Pa. 230McGregor v. Equitable Gas Co. (1891)
2 OE ALLEGHENY COUNTY. No. 167 October Term 1890, Sup. Ct.; court below, No. 286 July Term 1889, C. P. No. 2.
139 Pa. 239Crawford v. Shriver (1891)
1 OP ALLEGHENY COUNTY. No. 86 October Term 1890, Sup. Ct.; court below, No. 544 December Term 1881, C. P. No. 1. To tbe number and term of tbe court below, Edward Crawford, and others, partners trading under tbe name of the Crawford Manufacturing Company, by Washington Jarvis and Wm. McConwaj’-, receivers of said company, filed a bill in equity against S. P. Shriver and James H. Stokes, averring in substance : That on April 5, 1880, the Crawford Mfg.
139 Pa. 245Simpson v. Pittsb. Locomotive Works (1891)
139 Pa. 247Commonwealth v. Weiss (1891)
1 OF ALLEGHENY COUNTY. No. 68 October Term 1890, Sup. Ct.; court below, No. 106 June Term 1889, C. P. No. 1.
139 Pa. 253Smith v. Munhall (1891)
139 Pa. 257Robinson-Rea Mfg. Co. v. Mellon (1891)
1 OP ALLEGHENY COUNTY. No. 180 October Term 1890, Sup. Ct.; court below, No. 298 March Term 1890, C. P. No. 1. On January 6, 1890, a summons was served in assumpsit brought by the Robinson-Rea Manufacturing Company against A. W. Mellon.
139 Pa. 261Ford v. Anderson (1891)
1 OP ALLEGHENY COUNTY. No. 194 October Term 1890, Sup. Ct.; court below, No 402 September Term 1888, C. P. No. 1. On August 6, 1888, a summons Avas served in trespass brought by William J. Ford, by his father and next friend John J. Ford, against Robert J. Anderson and others, partners as Anderson, DuPuy & Co., and Frederick Burns. Issue.
139 Pa. 264Humphreys v. Nat'l Benefit Ass'n (1891)
[To be reported.] 1. A contract of insurance must have a reasonable interpretation, such as was probably in the contemplation of the parties when it was made; and when the words of a policy are, without violence, susceptible of two interpretations, that which will sustain a claim to the indemnify it was the object of the assured to obtain, should be preferred. (á) An accident insurance company issued a policy to one who was known to the company’s general agent to have but one eye, providing, inter alia, for the payment of $1,000 to the assured, in case of his permanent disability by “the total and permanent loss of the sight of both eyes,” from accidental bodily injuries received while the contract should be in force: 2. The knowledge of the general agent being the knowledge of the company itself, which therefore must be assumed to have known that it was insuring a man with one eye, the policy must be construed as insuring against the loss of eyesight by the destruction of that eye; notwithstanding the risk of the contract to the insurer was greater than if the assured had had two eyes.
139 Pa. 272Kraus v. Penna. R. (1891)
139 Pa. 276Estate of Mehaffey (1891)
PROM THE ORPHANS’ COTTRT OE ALLEGHENY COUNTY. No. 208 October Term 1890, Sup.
139 Pa. 284Phœnix Pot Works v. Pittsb. Etc. R. (1891)
APPEAL BY DEPENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY. • No. 212 October Term 1890, Sup. Ct.; court below, No. 585 January Term 1889, C. P. No. 2. On January 3, 1889, service of a summons was accepted in assumpsit brought by the Phoenix Clay Pot Works against the Pittsburgh & Lake Erie Railroad Co. Issue. At the trial on January 9, 1890, it was shown that on January 23,1888, the plaintiff company shipped by the defendant’s road, from Pittsburgh to Phillipsburg, in Beaver county, four glass-house pots. These pots were put into a box car by the plaintiffs,.packed by themselves. They weighed about 1,500 pounds each, were flat-bottomed, about 46 inches high, and shaped like a bakeoven, but with a projecting mouth or hood. The method of packing was to put in two of them with their mouths toward the end of the car, and the two others with their mouths toward the other end of the car, hay or straw being used to surround and cover them. They were easily broken, and each pot was worth about $50. The bill of lading contained the following provision : . “ Neither this company, nor any other such company, shall be liable for any loss or damage to such property by dangers of accident to railroad transportation, or by fires or floods, while at depot stations, yards, landings, warehouse, or in transit; and said property is to be carried at the owner’s risk of leakage, breakage, .chafing.” To cover shipments during the year 1888, the plaintiff company had executed and delivered to the defendant company a paper dated January 10, 1888, containing the following provision : “ In consideration of the Pittsburgh & Lake Erie Railroad Company transporting my property, as described, at a reduced rate, all glass-house pots, etc., shipped by us during the year 1888, from Pittsburgh station to various stations, the same being consigned to various parties, at various points, I hereby release said company, and each and every other company over whose lines said goods may pass to their destination, from any and all damage that may occur to said goods, arising from leakage or decay, chafing or breakage, damage by fire while in transit or at stations, loss or damage from the effects of heat or cold, from delay at points of transfer or trans-shipment, or from any cause not the result of collision of trains, or of cars being thrown off the track while in transit.” It was shown further that plaintiffs’ glass-pots, packed like those in this case, had uniformly reached their destination in good condition; that when these pots arrived at Phillipsburg, they were found to be displaced in the car, and that on further inspection, they were condemned as broken and unfit for use. The conductor of the train testified that there had been no collision or derailment on the way. At the close of the testimony, the court, White, J., charged the jury in part as follows: As to these pots being injured so as to become worthless, in consequence of the negligence of the railroad company, the mere fact that the pots were discovered to be injured when the car was opened at Phillipsburg, would not of itself make the company liable; because, to get clear of the release by the plaintiffs they must show that it was an injury resulting from something not properly embraced within the release. In other words they must show it was through the actual negligence of the company. The burden of proof is on the plaintiffs to show that these pots were injured and destroyed by the negligence of the company. On that point, we have no direct testimony as to how they were injured. No witness testifies to the time and manner of the injury. It is a matter that will have to be ascertained by the jury from the evidence. We have the testimony of the man who shipped these pots at South Pittsburgh. He testifies that he superintended the shipping of them; had his gang of men describe how they were put in the car, and how they were protected by hay when put in the car, but he testified from his general habit. He said he could not remember anything in particular about these four pots, or this identical shipment. He testified that it was his custom in all cases to ship them carefully, in the manner he testified to, and that these must have been shipped in that way, because he invariably was careful in shipment and guarding against accidents in the way he described. He testified that for years they had been shipping pots in the same way, and that all had gone safely down to Phillipsburg. Now, we have the testimony of the witness that went down from South Pittsburgh, Mr. O’Connell, foreman, I believe, of the pot works, and also the testimony of the foreman of the glass works, in Phillipsburg, as to the position and condition of these pots when the car was opened, or shortly after. The testimony is that the pots were put in straight, one right before the other, a certain distance apart, with hay between them. The testimony is that when they were down at Phillipsburg they were, not in that condition, but seemed to have been shifted; and, as one of the witnesses said, the front pots were kind of angling across the cars, showing that they were not in the same position they were when shipped, if you believe the witnesses. The question is, how came they to be shifted? One of the witnesses intimated that if the hay had been of a slippery character, in the shaking of - the car they might have shifted and come in contact with each other. Another theory, and that is the theory on the part of the plaintiffs, is that there must have been some sudden jar of the caí; by stopping or starting suddenly, or something of that kind, that caused the displacement of these pots. It is for you to say whether there was any negligence on the part of the railroad company. The court is requested by the plaintiffs to charge : 1. That the defendants cannot, by a release, exempt themselves from responsibility for actual negligence of themselves or servants. Answer: Affirmed. 2. That it is a question for the jury as to whether defendant was negligent, in this case, so as to cause this injury; and, if they find that it was, the verdict should be for the plaintiffs for the value of the goods shipped. Answer: Affirmed.3 The court is requested by the defendant to charge: 1. That, under all the evidence in this case, the verdict must be for the defendant. Answer: Refused.1 2. That, under the bill of lading and release in this case, there being no proof of collision or of cars being thrown off the track while in transit, or of negligence, the verdict must be for the defendant. Answer: There is no proof of any collision, or of the cars being thrown off the track; but, whether there was negligence is a question of fact for the jury.3 3. That no presumption of negligence on the part of the carrier arises from the condition of the clay pots at the place of delivery, and the jury can draw no inference of negligence therefrom. Answer: Affirmed. —The jury returned a verdict for the plaintiffs for $200. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error: 1, 2. The answers to the defendant’s points.1 8 3. The answer to the plaintiffs’ point.3 Counsel cited: Penna. R. Co. v. Miller, 87 Pa. 398; Farn-ham v. Railroad Co., 55 Pa. 59 ; Goldey v. Railroad Co., 30 Pa. 244; Grogan v. Express Co., 114 Pa. 523; Adams Exp. Co. v. Holmes, 19 W. N 571; Weiller v. Penna. R. Co., 134 Pa. 310 ; New York etc. R. Co. v. Eby, 22 W. N. 92; Penna. R. Co. v. Raiordon, 119 Pa. 577. Counsel cited: Penna. R. Co. v. Miller, 87 Pa. 395; Adams Exp. Co. v. Sharpless, 77 Pa. 517; Safe Dep. Co. v. Pollock, 85 Pa. 391; New York etc. R. Co. y. Eby, 22 W. N. 92.
139 Pa. 289Henry v. Pittsb. Etc. R. (1891)
[To be reported.] 1. Unless restrained by contract, a corporation or an individual may suspend or discharge an employee, at pleasure, with or without cause; and the fact that the employee’s reputation is affected by unfavorable inferences drawn from the suspension, or discharge, itself, will not render the employer liable in damages. 2. A railroad company is not responsible, under the rule of respondeat ouster, for a libel of an employee published by its general superintendent without authority from the corporation; nor, is the superintendent himself responsible, when there is no evidence submitted that the libelous article was dictated, or even inspired by him. 3. In this case, even if the superintendent had furnished all the information contained in the publication, as imputed to him by the plaintiff, he would not thereby be responsible for the libel, in the absence of proof submitted that he went one step further, and procured its publication.
139 Pa. 298Commonwealth v. Wilkinson (1891)
No. 217 October Term 1890, Sup. Ct.; court below, No. 205 March Term, 1890, Q. S. On March 10, 1890, the grand jury returned as a true bill an indictment of William Wilkinson and Sarah Wilkinson, charging in the first count that the defendants on January 8, 1890, did kill and expose for sale “twenty quail and Virginia partridge,” and charging in the second count that the defendants on the same dajr did have in their possession, after the same bad been tilled, “ twenty quail…
139 Pa. 306Estate of Morrison (1891)
FROM THE ORPHANS’ COURT OE ALLEGHENY COUNTY. No. 218 October Term 1890, Sup. Ct.; court below, No. 55 January Term 1890, O. C. On February 17,1890, the second and final account of Jobn A. Harper and George Shiras, Jr., executors of the estate of William Morrison, deceased, showing a balance due the estate of 1125,095.88, was called for audit.
139 Pa. 309Stewart v. Neely (1891)
2 OE ALLEGHENY COUNTY. No. 221 October Term 1890, Sup. Ct.; court below, No. 249 October Term 1890, C. P. No. 2.
139 Pa. 316Woodward v. Brace (1891)
1 OE ALLEGHENY COUNTY. No. 225 October Term 1890, Sup. Ct.; court below, No. 526 June Term 1890, G. P. No. 1.
139 Pa. 319Poundstone v. Hamburger (1891)
2 OE ALLEGHENY COUNTY. No. 226 October Term 1890, Sup. Ct.; court below, No. 618 July Term 1887, C. P. No. 2. On June 25, 1887, George W. Poundstone brought assump-sit against “Philip Hamburger, surviving George W. Jones and Philip Hamburger, late partners.” Issue.
139 Pa. 326McCracken v. Hamburger (1891)
Where, on the sale of a business and the plant in which it is conducted, the vendor, in pursuance of the contract of sale, remains in the management thereof under the same business name, the vendee will be liable upon the vendor’s contracts for supplies, made with persons who had dealt with him before the sale, and at the time of the contracts were without notice of the change of ownership.*
139 Pa. 330Johnson v. Allegheny City (1891)
139 Pa. 334Conroy v. Pittsburgh Times (1891)
1.A privileged communication* is one made upon a proper occasion, from a proper motive, and based upon reasonable or probable cause: Briggs v. Garrett, 111 Pa. 404, 414; and also, perhaps, in a proper manner; for, if the manner be improper, the privilege is lost: Per Mr. Justice Mitchell. 2. In such cases, there is no prima facie presumption of malice from the publication: there must be some evidence beyond it; either intrinsic, from the style and tone of the article, or extrinsic, as actual malice, known falsity, or want of probable cause; or, other evidence fairly tending to overcome the protection of the privilege. 3. Hence, where the publication charges upon the plaintiff the commission of an indictable offence, the presumption of the plaintiff’s innocence of the offence is evidence that the publication is false and without probable cause, sufficient to put the defendant to proof of the facts to support his claim for the privilege.
139 Pa. 341Fennell v. Guffey (1891)
2 OF ALLEGHENY COUNTY. No. 233 October Term 1890, Sup. Ct.; court below, No. 131 October Term 1890, O. P. No. 2.
139 Pa. 345Murphy v. Morton (1891)
1 OF ALLEGHENY COUNTY. No. 234 October Term 1890, Sup. Ct.; court below, No. 663 September Term 1890, C. P. No. 1.
139 Pa. 347Chambers v. Balt. & O. R. (1891)
2 OE ALLEGHENY COUNTY. No. 235 October Term 1890, Sup. Ct.; court below, No. 233 July Term 1890, C. P. No. 2, in Equity.
139 Pa. 354In re Berg (1891)
Nos. 89, 90 October Term 1890, Sup. Ct.; court below, Nos. 1182, 1184 March Term 1890, Q. S. On February 4,1890, Henry Berg and Daniel Ritter filed separate petitions, in due form and accompanied by proper bonds, for a license to sell liquors at retail under the act of May 18, 1887, P. L. 108, on Railroad Avenue, in Verona borough.
139 Pa. 358Beatty v. Rankin (1891)
2 OF ALLEGHENY COUNTY. No. 153 October Term 1890, Sup. Ct.; court below, No. 89 January Term 1885, C. P. No. 2. On March 3, 1890, in an action to No. 89 January Term 1885, a verdict was rendered in favor of Fisher Beatty against J. S. Rankin and Louisa G., his wife, for -$180.57. A motion for a new trial having been withdrawn, judgment was entered on the verdict on June 10, 1890, and execution issued.
139 Pa. 363Bunting v. Hogsett (1891)
[To be reported.] 1. Ordinarily, the question of proximate cause is for the jury; but, when the facts are not in dispute, it is for the court to determine whether or not an injury was the natural and proximate consequence of the negligence complained of, — a consequence likely to flow from the negligent act. 2. One who commits an act of negligence will be held to have foreseen and to be responsible for whatever consequences, in the nature of things, may ensue therefrom without the intervention of some other independent agency, although, in advance, the result actually occurring might have seemed improbable. 3. The inquiry must always be, whether there was any intermediate cause, disconnected from the prim ry fault and self-operating, which produced the injury; if there was not, the defendant’s act of negligence must be considered as the proximate cause of all the consequences resulting therefrom. 4. The engineer of a locomotive, through whose negligence a collision is about to occur, may, perhaps, in any criminal aspect of the case, be justified in leaping from the engine to save himself from death or great bodily harm, even though in so doing he puts in jeopardy the lives of others. 5. But, nevertheless, the engineer or his employer, may be held responsible for an injury which resulted from his primary act of negligence, and was rendered possible by his leaping from the engine and submitting it without control to the consequences of the collision. 6. If an individual is injured by the concurrent and contributory negligence of turn parties, one of whom at the time is the common carrier of his person, both tort feasors are liable to him jointly and severally; the views on this subject expressed in Dean v. Bailroad Co., 129 Pa./ 520, re-affirmed and applied. 7. When there is testimony that a plaintiff, suing for permanent personal injuries, has Bright’s disease of the kidneys, with little if any evidence to the contrary, and none to show that said injuries caused the disease, it is proper to direct the jury to consider the fact, in determining his expectancy of life and loss of earning power.
139 Pa. 378Felty v. Calhoon (1891)
|J%>PEAL BY PLAINTIFF EROM THE COURT OF COMMON PLEAS ' — ' NO. 1 of ALLEGHENY COUNTY. No. 193 October Term 1890, Sup. Ct.; court below, No. 556 December Term 1889, C. P. No. 1, in Equity. On November 6, 1889, Levi E. Felty filed a bill in equity against D. K. Calhoon, praying for specific performance of. a written agreement signed by the defendant in the following form: “ Homestead, Pa., July 19, 1889. Received of Levi E. Felty the sum of ten dollars, hand money, on purchase of a piece of ground situate in Mifflin township, county of Allegheny, and state of Pennsylvania, having a front of four hundred feet on West’s run township road; starting at the corner of land now belonging to Frederick Drew, thence running along said township road towards- the Pittsburgh, Virginia & Charleston railroad, said distance of four hundred feet, and extending back along line of said Drew and another line to be fixed, sufficient, with said frontage, to make two acres of land; being a part of a larger tract of land now belonging to D. K. Calhoon, Esq. The price of said described land is two hundred and twenty-five dollars per acre, cash, on tender of good and valid general warranty deed, within thirty days from date hereof, clear of all encumbrances. “ I accept the above. D. K. CalhoON.” “Luyi E. Feltv. “Witness to both: D. R. JONES.” The bill averred, inter alia, that the defendant had refused to meet the plaintiff, for the purpose of fixing the last boundary line referred to in the agreement; whereupon the plaintiff, at his own expense and in a reasonable manner, established a line, which, with the other lines mentioned in the agreement, made and bounded the two acres agreed to be conveyed; but, if the defendant should object to the line so fixed by the plaintiff, the plaintiff was willing to accept from the defendant any other line he might establish, in a reasonable manner, in accordance with said agreement; that the plaintiff always had been and still was willing and prepared to pay to the plaintiff the full amount of the purchase money on tender of a deed for the land by the defendant, but that the defendant peremptorily refused within thirty days from the date of the agreement to make a deed therefor to the plaintiff, and afterwards refused to execute a proper deed therefor presented to him by the plaintiff. The defendant demurred to the plaintiff’s bill, assigning, as causes of demurrer, the following reasons : “ 1. That the bill does not set out any property to be conveyed or any tender of the purchase money therefor, with sufficient certainty and definiteness to base a decree thereon. “ 2. The bill, as a whole, discloses no facts for which an action at law would not lie and give an adequate remedy. “ 8. The bill does not set out such a state of facts as would entitle the plaintiff to the equitable relief prayed for.” After argument, the court, Stowe, P. J., sustained the demurrer by the following opinion: I do not see how I can avoid sustaining the demurrer filed to the. plaintiff’s bill. The agreement fails to set out anything by which the piece of land can be identified. Indeed, its very terms show that it was not defined, even in the minds of the contracting parties. There is only one line given with certainty, viz., 400 feet along West’s run township road towards the Pittsb., Y. & C. railroad, starting at corner of land of Frederick Drew. The other description, “ extending back along line of said Drew and another line to be fixed, sufficient, with said frontage, to make two acres,” is so vague as to amount to nothing. Drew’s line can be located, but another line “ to be fixed ” with said frontage to make two acres, shows that the line was not then determined upon; and the agreement gives no means of determining where it shall start or how long it shall be, so as to include the two acres. There is nothing upon which we can base the maxim, Id certum est quod certum reddi potest. Demurrer sustained. —A final decree having been entered, dismissing the bill, the plaintiff took this appeal, specifying that the court erred: 1. In dismissing the plaintiff’s bill. 2. In not overruling defendant’s demurrer. 8. In not entering the decree prayed for. 1. In the construction of contracts equity follows the law; and, therefore, this agreement will have in this case, as it would have in a court of law, a fair reading, and not a strained one. It is not necessary that the description of the land should be so full as to be completely known by a mere reading of the language: Pomeroy on Specif. Perf., § 152; Waterman on Specif. Perf., § 144. Certainty to a common intent is sufficient: 2 Lead. Cas. Eq., 1030. And the court will look at the spirit of the contract to determine its meaning: Herdic’s App., 58 Pa. 211. Our position is, that the words “ another line to be fixed,” mean nothing more nor less than a survey of its location on the ground, and a calculation of its length, so that with the other lines mentioned it may bound the two acres. There was a contract completed, except the ascertainment of the location of one line and the calculation of the length of the side lines. Therefore, if the court has the means at hand to ascertain the location, the maxim, Id certum est quod certum reddi potest, applies, and specific performance should be decreed : Bispham’s Eq., § 377; Fry on Specif. Perf., § 207; Herdic’s App., 58 Pa. 211. If the court had given this writing to any surveyor, he would not have had a particle of difficulty in locating the two acres agreed to be surveyed. 2. But, assuming the correctness of the defendant’s view, that the contract as signed was not a complete one, still, if what was left to be done can be done by the court, consistently with the contract, specific performance will not be refused: Yandoren v. Bobinson, 1 Green N. J. Eq. 256; Milnes v. Gery, 14 Yes. 401. In those cases, it was held that a contract to sell “ at a fair price ” could be specifically enforced. The only difference between them and the case in hand is, that there the price was to be fixed and here a line is to be fixed. Therefore, there would have been nothing inconsistent with either the letter or the spirit of this agreement, had the court sent a surveyor out to fix the location, or adopted any means suited for that purpose. But, if we assume that something material to a completed contract was postponed for future settlement, it was the duty of the defendant to meet the plaintiff for that purpose, which it is admitted he refused to do. So far as appears, he has no objection to the line fixed by the plaintiff, but if he have any, our offer to accept any other line fixed by him removes all reason for a strict application of the statute of frauds: Story’s Eq. J., § 770; and makes it the fault of the defendant himself if any uncertainty or indefiniteness remain in the agreement, and such indefiniteness he cannot set up to defeat specific performance: Fry on Specif. Perf., § 207; Bispham’s Eq., § 377; Pritchard v. Ovey, 1 J. & W. 396. There was no appearance for the appellee.
139 Pa. 383Commonwealth v. Doughty (1891)
APPEALS BY DAVID DOUG-HTY, D. R. CALLEN AND ¥M. MA-NEESE EKOM THE COIJBT OF QUARTER SESSIONS OE ALLEGHENY COUNTY. Nos. 12, 17 October Term 1890, Sup. Ct.; court below, No. 758 September Term 1889, Q. S. To the number and term of the court below, the grand jury returned as a true bill an indictment of Wm. Maneese, Reddy McCall, James Doyle, J. D. Bauder, John Dougherty, D. R. Callen and David Doughty, in four counts. The first count charged that the defendants “ unlawfully did falsely and maliciously conspire, combine, confederate and agree together to cheat and defraud divers citizens of the said county of their moneys, goods, chattels and property, the names of the said citizens of the said county being to the said inquest unknown, and to do certain other malicious, dishonest and unlawful acts, to the prejudice of the said persons, whose names are to the said inquest unknown.” The second count charged that the defendants in pursuance of said unlawful, etc., conspiracy, etc., had, etc., “ did falsely and maliciously cheat and defraud the said persons, whose names are to the jurors unknown, of their moneys, goods, chattels and property, and other malicious, dishonest and unlawful acts then and there did,” etc. The third count charged, with formal averments, that the defendants conspired to make and cause to be made before David Doughty, William Maneese and D. R. Callen, respectively, aldermen of the city of Pittsburgh, criminal informa-tions charging certain persons, whose names to the inquest were unknown, with certain criminal offences, and by means thereof afterward to extort large sums of money from such persons, as a compensation to defendants for desisting from the further prosecution of said informations. The fourth count, with formal averments, charged that the defendants, in pursuance of said unlawful conspiracy last mentioned, so had and made, did then and there make and cause to be made criminal informations for certain crimes and misdemeanors against persons, before the said aldermen, respectively, and unlawfully and corruptly did demand, exact, extort and receive large sums of money from the persons charged, as a compensation to the defendants for desisting from said prosecutions, etc., etc. On October 18,1889, on motion of attorneys for defendants, an order was made upon the district attorney to furnish “ a bill of particulars, including specifications as to the times, places and persons involved in the alleged conspiracy.” Thereupon, the commonwealth filed a bill of particulars specifying the matters proposed to be shown in support of the indictment, appended a list of prosecutions of persons informed against before said aldermen, and averred “ that divers large sums of money were extorted from each and all of said persons for an alleged settlement of such criminal informations,” the said list embracing prosecutions before different aldermen of sixty persons, in-eluding Maggie Raymond, charging divers offences such as adultery, fornication, and selling liquors without license, in which the informations were made chiefly by Doyle, Dougherty, or Bauder. The indictment was called for trial oh November 12, 1889, when defendants Wm. Maneese, Reddy McCall, D. R. Callen and David Doughty, pleaded not guilty. Defendants, James Dojde, J. D. Bauder and John Dougherty, against whom, at the same term, a verdict had been rendered upon a like indictment to No. 752 September Term 1889, pleaded autrefois convict, referring to the record of said last mentioned indictment. The commonwealth demurred. By the court: The record referred to, shows only a verdict of guilty, and no sentence or judgment thereon; it therefore does not support the plea, and the demurrer is sustained; exception.0 The defendants last mentioned, being then called upon to plead to the indictment, stood mute; whereupon the court ordered the plea of non cul. to be entered as to said defendants. Issue. On the trial, the commonwealth called Maggie Raymond and, after she had testified at length on her examination in chief without objection, and partly on cross-examination, defendants’ counsel moved “ to strike out all this testimony, as not embraced in the bill of particulars as to the defendant, Alderman Doughty.” Objected to, for the reason that the witness’s name was mentioned in the bill of particulars. Bjr the court: Motion overruled; exception.8 9 A witness for the commonwealth* being on the stand, the commonwealth proposed to prove: That the case of the commonwealth against Peter Butterhoff, being a criminal information for the offence of selling liquor without license, made by one Lowrey J.- Bender before Aider-man M. F. Cassidy, on June 8, 1889, was settled before said alderman by the withdrawing of the information, and the paying of $15 for costs by the prosecutor. That Doughty, one of the defendants, interested himself and was concerned in the said settlement, and that it was through his intervention that the said case was allowed to be settled by the alderman. This to be followed by proof that J. D. Bauder, James A. Doyle and John A. Dougherty, three of the said defendants, were concerned in the settlement of the said case, and that Bender was in the employ and acted for the said J. D. Bauder in the said settlement; that the said Doughty received money for the settlement of the said case, which he appropriated to his own use, and that he made the said settlement in pursuance of the conspiracy alleged in this indictment. Mr. Moore: Objected to : 1. Because the defendant, David Doughty, is not charged in the indictment with any illegal settlement of the Butterhoff case. 2. Because the defendant, David Doughty, is not charged with any conspiracy with Bender, he not being one of the defendants named in the indictment which we are trying. 8. Because David Doughty, the defendant, is not in the offer proposed to be shown as having any knowledge of the connection of Bauder, or Doyle, or Dough-erty, named in the indictment as co-defendants with him. 4. Because the defendant, David Doughty, has a right to secure the settlement of the case as a friend, or acting as a friend and agent of the defendant, Butterhoff, and committed no crime whatever in so settling the case. By the court: Objection overruled; exception.8 E. J. Donnelly, stenographer, called : The commonwealth proposes to prove by the witness on the stand that upon the trial of the indictment against J. D. Bau-der et al. for conspiracy, at No. 752 September Term 1889, on or about October 21, 1889, in this court, Wm. Maneese, D. R. Callen and David Doughty, three of the defendants in this case, were called as witnesses to testify in said case. That they and each of them were cautioned by the court, before testifying, that they need not testify as to anything that would tend to criminate them. That, after being so cautioned, they did testify, and the testimony was fully, completely and accurately reduced to writing by E. J. Donnelly, an official stenographer. The commonwealth further proposes to offer the testimony of said defendants in evidence in this case, in so far as the same affects them. Counsel for defendants object to the offer: 1. It is an attempt to prove a conspiracy by the declarations of individual defendants, before there is any evidence submitted to the court or jury. 2. Evidence tending to convict the defendants must be submitted to the court, and sufficient in law to show that they conspired and breathed together for a common purpose, before any declarations of any defendant can be offered in evidence. 3. It is incompetent, irrelevant and out of time. 4. The offer does not propose to prove the stenographer’s notes. 5. Specially objected to on behalf of defendants McCall and Doughty, as incompetent, unless containing their own admissions or confessions. 6. Objected to, as involving evidence against said defendants in matters in which they were not parties, and in which they were not charged as conspirators, and in which they were not of record as defendants. 7. As incompetent, because containing testimony in relation to matters not embraced in the bill of particulars furnished to said defendants McCall and Doughty. By the court: I understand, and it is so asserted by the attorneys for the commonwealth, that the witness as a stenographer took the full testimony of the defendants referred to in the offer, at the former trial, and it is proposed to prove the notes, etc., so taken. The offer embraces only the testimony so far as it affects the defendants named. I think it is admissible, as admissions' on their part, so far as it tends to prove a conspiracy and their participation in it. The objections to this extent are overruled; exception.7 At the close of the testimony, the court, White, J., charged the jury in part as follows: [Now these defendants are charged with conspiracy. There are seven, I believe, of the defendants in this case. Three of them, Bauder, Doyle and Dougherty, were tried with three others some two weeks or so ago, and all of those six were found guilty. They were those that were concerned in the Bauder agency; Bauder was the head of it, and the others were employees acting under Bauder. Three of those parties are parties to this suit, but there aré several others included here; one of them, McCall, and the three aldermen. This suit embraces most if not all the charges made in the former suit, and I believe it embraces some not in tbat. That was a charge of conspiracy, and this is a charge of conspiracy; but different parties were in the former case, not the same parties now that were on trial then. Three of the former ones are parties now, three of them are not. Then we have four other parties now charged with a conspiracy. The conspiracy charged is substantially this: That the defendants confederated or conspired for the purpose of instituting civil suits for penalties and prosecutions for criminal offences, not for the purpose of bringing offenders to justice, but solely for the purpose of personal gain, making money out of these prosecutions by way of compromising them, or settling them contrary to law; that is substantially the charge. Now, as to three of these defendants, Bauder, Doyle and Dougherty, I presume that the juiy will have no difficulty in finding a verdict. They were convicted in the former case, but that verdict is not conclusive against them here. You will pass upon their guilt, in this case, upon the evidence before you. If you find them guilty you will say so by your verdict. It is not at all likely that the court will sentence parties twice for the same offence. The important question in this case is, are these three aldermen guilty, or any one or two of them ? As for the other defendant, McCall, while there is some evidence against him, I do not think it is sufficient to convict him, and as the attorney for the commonwealth has very properly stated to the jury, he does not ask his conviction. Of course, in a case of this kind the jury may find all the defendants guilty if they believe the evidence is sufficient, or they may find two or more of them guilty; to constitute a conspiracy there must be at least two. Now gentlemen, I wish to make a remark about the act [of February 26, 1855, P. L. 53] , which has been referred to frequently during this trial. In 1855 an act of the legislature was passed entitled, “An Act to prevent the sale of intoxicating liquors on the first day of the week, commonly called Sunday.” .I say that that act has been used in this city, a great many suits brought on it, and money squeezed out of parties on the ground that they were selling on Sunday, when if they were guilty at all they were guilty of selling without license, having no license. I do not think it applies to parties that have no license, but it has been used in that way, and has been used undoubtedly for improper purposes, simply to squeeze out of them the penalty of fifty dollars, and let them go on selling without license, conniving at them. Wherever a case of that kind is before a magistrate, and the suit is for the fifty dollars, and the party is brought in on a warrant, it is for selling without the license presumably, and the magistrate who will settle the fifty dollar case and drop the other is guilty of a great wrong. And that is one main charge in this conspiracy, that the criminal prosecutions were used for the purpose of extorting out of these poor creatures, many of them, the fifty dollars penalty, because in the criminal prosecutions the prosecutor would get nothing, and the magistrate would have no right to try it. A magistrate has no right to try any criminal case, or no right to receive evidence for the defendant in any criminal case; all he has to do is to inquire whether there is sufficient ground to hold that party over to answer in court for the offence. But the main charge is, in many of these cases, that the .criminal prosecution was held over these parties to compel them to pay the fine of fifty dollars for selling on Sunday, and then let it go. Now, gentlemen, as the main question in this case is as to the aldermen, wé will inquire what is a conspiracy, and who may be conspirators. The evidence, on the part of the commonwealth, points to several illegal acts, of. some of the defendants, at least, in the furtherance of this unlawful purpose, charged as a conspiracy. They may be classed under five heads, each of which is plainly unlawful, namely: First, settling a civil suit for the penalty of fifty dollars, under the act of 1855, for less than fifty dollars. Neither the prosecutor nor the magistrate has any right whatever to settle a suit of that kind for less than fifty dollars. Second, settling the civil suit for the penalty, and dropping or abandoning the criminal prosecution for selling without a license ; plainly, palpably wrong and illegal. Third, settling or dropping the criminal prosecution because of money or costs received. Fourth, compelling parties not guilty to pay costs, to stop the prosecutions ; that is extortion. Fifth, commencing prosecutions for some criminal offence for the purpose of frightening suspected parties into paying money or costs to avoid a law suit. That is a manifest perversion of law and the processes of the law. If two or more of the defendants were engaged in carrying out all or any one of these offences I have mentioned, they were engaged in an unlawful business,* and, if acting in concert, were conspirators. It is not necessary that each conspirator should personally know all the other conspirators, or should have had any consultation, or concerted action with all the others. If three or more are in a conspiracy to carry on an unlawful business, and another knowingly unites with one of them in furtherance of the unlawful acts, within the purpose of the conspiracy, he thereby becomes a conspirator, a co-conspirator’, although he may not know of others being in the conspiracy. Now let us look at the duties of aldermen. An alderman should not take an information for a criminal offence without inquiring into the facts of the case, and being satisfied that there is a reasonable ground for the prosecution. It is his duty to keep a regular docket in which shall be entered every suit commenced or information made before him, with a full and complete record of all proceedings in the case, and the final disposition thereof, witlr all costs charged or paid in the same, and also any fine imposed and paid, if any, and the names of all witnesses. It is also the duty of the magistrate to proceed without delay to the hearing and final disposition of every ease. The constable or officer having a warrant, process or subpoena to serve, shall serve the same without delay, and make return thereof immediately to the magistrate, with his return indorsed thereon. If the constable or officer fail to make return in a reasonable time, it is the duty of the magistrate to require him to make return, and in default thereof, to issue an alias warrant, process or subpoena, and place it in the hands of another officer who will execute it. If the magistrate is satisfied that the accused is guilty of an indictable offence (unless within the excepted cases, or a trivial case that I will presently refer to), he acts improperly and does wrong to dismiss the case, or permit it to be settled on payments of costs. Much more is it improper, and even criminal, for him to permit a prosecutor to drop or settle a case, where he has reasonable ground for believing that money has been or is to be paid to the prosecutor. If the charge turns out to be a very frivolous one, the magistrate ought to dismiss it after hearing the testimony on behalf of the commonwealth. (But my experience in this court is, that that class of cases is not dismissed by aldermen. At the beginning of every term I have been in this court, we have from two to three hundred cases sent up by aldermen and magistrates of the most trifling character imaginable, that never ought to have come to court. Some poor devils were not able to pay the costs before aider-men, and come up, go before the grand jury and come to court for trial, if there is a true bill; they are not able to pay the costs, but the county has to pay the costs; they have an act passed to that effect. Scores and scores of surety of the peace cases that never should have come here at all, are sent here simply to get costs. For years that has been a crying evil of this county, and hence, I say, in these trifling cases aldermen have a right to dismiss them and ought to dismiss them, and the county has to pay the costs then, but unfortunately there are more costs if they send them to court.) d Now, there is a class of cases that aldermen or magistrates may settle, or permit the parties to settle, I mean. That class of cases is of this kind: where the prosecutor complains of an injury to him personally, or to his property; for instance, common assault and battery on his person, or some injury to his property in the way of a malicious trespass. You will remember many of these cases in which the information was made by Bauder; that the warrants sometimes went to him, and sometimes to his employees in his office. The settlement of such a case without a hearing, or the defendant appearing, or upon sham evidence, is conclusive evidence of corrupt motive in the prosecutor. When there is a criminal prosecution for selling liquor without license, and also a civil suit for the penalty for selling on Sunday, if the civil suit is settled by the payment of the penalty and costs and the criminal prosecution dropped, the inference is irresistible that the prosecutor was influenced by corrupt motives. So, also, where the civil suit is settled for less than the penalty of fifty dollars, and the magistrate, who-knowingly permits such settlement of cases before him, is a party to the wrongful, illegal act. If an alderman or magistrate acts honestly and in good faith, but commits a wrong, either through a mistake as to his duty or a mistake as to the law, he is not to be held criminally responsible. But if, from the frequency of prosecutions and other circumstances, he has good reason to believe that the prosecutions are instituted for improper purposes, and the prosecutor is simply seeking personal gain, he should not only refuse to aid the prosecutor in his unlawful purpose, but should resolutely •refuse and expose him. And, if the circumstances are such that the jury may reasonably find that the magistrate knew or believed that the prosecutor was acting corruptly and illegally, and he permitted or connived at such acts, he is as criminally guilty as the prosecutor.] 3 The counsel for the defendants have asked me to answer certain points: 1. Under the pleadings and the evidence in this case, it is the duty of the jury to find the fact, whether or not the defendants, Bauder, Doyle and Dougherty, have been heretofore convicted on charges the same as those in this indictment. Answer: Refused.3, 2. As it appears from the record of this court, at No. 752 September Sessions 1889, given in evidence, that on October 22,1889, the defendants, Bauder, Doyle and Dougherty, were, on charges same as in this case, tried by jury and found guilty, and that no new trial or arrest of judgment was granted or applied for, and the case stands ready for judgment, the law does not authorize a further verdict against them here. Answer: Refused.1’ 4. Counsel for David Doughty, one of the defendants in case on trial, respectfully requests the court to charge the jury, as to the fourth count in the indictment, that even if the settlement effected in the case of Peter Butterhoff was illegal, yet, if the jury believe that the said David Doughty acted throughout the entire transaction without criminal intent, and in good faith, as a friend of said Peter Butterhoff, they should acquit as to that count. Answer: I affirm that point, if the jury believed Doughty did not share in the money received from Butterhoff. You will remember that case; that seventy-five dollars were paid by Butterhoff to Alderman Doughty. Now, if it was a suit for the penalty, that was twenty-five dollars too much. They had no right to demand that in a civil suit for the penalty. If it was a criminal prosecution against him for selling without a license, then it was glaringly improper to settle it on the payment of seventy-five dollars, settling a case that ought to have been returned to court; and I say it was glaringly improper for any of the parties to get seventy-five dollars to settle the case that ought to have been returned to court, no difference before whom the information was made, Cassidy or anybody else. But, the evidence is that Alderman Doughty went to Alderman Cassidy’s office to get him to settle it, and it is for the jury to say. If he received nothing of the money, that act alone, gentlemen, would not be sufficient to convict him of this conspiracy, but you are to take it in connection with other evidence, and if he received any of that money it would be very strong evidence against him.4 The jury returned a verdict finding defendant Reddy McCall not guilty, and defendants Wm. Maneese, James Doyle, J. D. Bauder, John Dougherty, D. R. Callen and David Doughty guilty. Thereupon, the defendant David Doughty filed a motion for a new trial and in arrest of judgment, for the following reason, among others: Defendant, David Doughty, says, that whilst his trial in this case was going on, the district attorney called for sentence for illegal liquor selling, one Mrs. Clifford, and in the course of her examination she made serious charges against the said David Doughty, of efforts, to wit, of trying to extort money illegally from her for the settlement of a case pending before him, and that the charge was discussed, tried and disposed of in the presence and hearing of the jury then trying this indictment, to the manifest prejudice and injury of defendant. In assigning this reason, counsel has no intention of attributing any knowledge of the fact to the district attorney or the court, or any intention to do injury to defendant, but believes that it was unforeseen and unexpected, yet its injurious effects justify the assignment as a reason for a new trial and in arrest of judgment.® Other defendants filed a motion for a new trial, and, after argument of the motions, the court, White, J., filed the following opinion: From tbe evidence, there can be no doubt that J. D. Bauder and the men employed by him in his business, to wit, J. Doyle, L. J. Bender, J. A. Dougherty, W. Nagle and F. B. Stoner, were engaged in a conspiracy to extort money by means of criminal prosecutions. They were all found guilty at No. 752 of this term. The question on this trial was, whether the three aldermen, Maneese, Callen and Doughty, were engaged in the conspiracy. I think the evidence justified a verdict against all of them. What occurred, incidentally, during the trial, when Mrs. Clifford was called up for sentence, was a surprise to the court, and no doubt to all parties concerned. But Alderman Doughty was given full opportunity to contradict what she said, as he did most emphatically. This seemed to be entirely satisfactory to himself and his counsel, for no objection was made to going on with the trial, and no request made to have the case continued. It is too late now to complain' of it. It is not at all likely it had any influence upon the verdict of the jury. Overruling the plea of autrefois convict of Bauder, Doyle and Dougherty, was not injurious or prejudicial to the other defendants. The indictment charged a conspiracy with them. If they had not been defendants in this trial, all evidence proving the original conspiracy and connecting any of the other defendants with it, would have been admissible. The indictment charges a conspiracy of Maneese, Callen, Doughty, Bau-der, Doyle, Dougherty, McCall, “together with divers other wicked and evil disposed persons.” And, in the bill of particulars furnished by the commonwealth at request of defendants, it is expressly stated that the defendants conspired with L. J. Bender, W. Nagle and F. B. Stoner, in conjunction with those named in the indictment. Also, the case of Peter But-terhoff was stated as one of the cases embraced in the conspiracy. Thus, Alderman Doughty had specific notice that Bender was charged as one of the conspirators. The evidence was amply sufficient to justify the jury in finding that Alderman Doughty actually knew of the illegal business and practices of the Bauder agency, and that Bender was one of the party. It was sufficient also to justify them in finding that Alderman Doughty was the chief instrument in illegally settling the Butterhoff case, received from Butterhoff seventy-five dollars for that purpose, and retained twenty-five dollars for himself. He was thus directly connected with the original conspirators through Bender, and was corruptly concerned in settling one of their cases, in pursuance of the conspiracy. The testimony of Maggie Raymond in chief was not on the matter complained of, but was brought out rather in consequence of the cross-examination. In the case of Alderman Callen, the evidence was so clear and strong there is no room for doubt. The same is true in the case of Alderman Maneese. But in his case there are two mitigating circumstances: he received nothing except in the way of costs, and was candid enough to admit all the facts. And now, November 29, 1889, new trial refused as to all defendants, and motion in arrest of judgment, overruled in all.5 —On the same day, sentence was suspended as to defendants, Bauder, Doyle and Dougherty, and Vm. Maneese was sentenced to pay a fine of six cents and the costs, and to imprisonment in the county workhouse for six months; D. R. Callen, to pay a fine of .six cents and the costs, and to imprisonment in the county workhouse for three years;6 and David Doughty, to pay a fine of six cents and the costs, and to imprisonment in the workhouse for one year. Thereupon, defendant David Doughty took the appeal to No. 12, assigning for error: 1. The admission of Maggie Raymond as a witness. 2. The admission of the commonwealth’s offer.8 3. The portion of the charge embraced in [ ] 3 4. The answer to the defendants’ fourth point.4 5. The refusal of the motion in arrest of judgment,5 for the reason given.5 6. The giving of “ undue prominence to the evidence against Doughty, and in not presenting the evidence in his favor with fullness and emphasis.” 7. The admission of the commonwealth’s offer.7 8. 9. The refusal of defendants’ motions.8 9 The defendants, D. R. Callen and Wm. Maneese took the appeal to No. 17, specifying that the court erred: 1, 2. In refusing defendants’ points.® b 8. In the portion of the charge embraced in [ ] 3 4. In sustaining tbe demurrer to the plea of autrefois acquit, filed by Bauder, Doyle and Dougherty.® 5. In the language of the charge embraced in [ ] d 6. In sentencing defendant Callen to three years imprisonment, the section of the act under which he was indicted, to Avit, § 128, act of March 81, 1860, P. L. 413, not authorizing imprisonment for over two years.6 7. In not instructing the jury to find on each count of the indictment separately, or generally.
139 Pa. 399Marshall v. Roll (1891)
2 OP ALLEGHENY COUNTY. No. 132 October Term 1890, Sup. Ct.; court below, No. 108 October Term 1889, C. P. No. 2. To the number and term of the court below, A. M. Marshall brought ejectment against George C. Roll and Minnie A. Roll, to recover two lots of ground in the Fourteenth ward, Pittsburgh. Issue.
139 Pa. 404Bradwell v. Pittsb. Etc. Pass. Ry. Co. (1891)
APPEAL BY PLAINTIPP PROM THE COURT OP COMMON PLEAS NO. 2 OP ALLEGHENY COUNTY. No. 154 October Term 1890, Sup Ct.; court below, No. 386 April Term 1889, C. P. No. 2. On March 4, 1889, a summons was served in an action of trespass brought by John Brad well against the Pittsburgh & West End Passenger Railway Company, to recover for personal injuries caused by negligence. Issue. The case was called for trial on March 24, 1890, when, as stated in the appellant’s paper-book, after the challenges had been exhausted and a jury selected, but before the jury was sworn, the fourth juror asked to be excused from serving, saying that he was an employee of a firm a member of which was a director of the defendant company. The court ordered the juror to be sworn. The record, however, showed no bill of exceptions to the order. The testimony presented tended to show the following facts: On November 3, 1888, between one and two o’clock R. M., the plaintiff, a farmer about twenty-eight years of age, started to drive to his home from Hay’s livery stable, Pittsburgh, in a light two-wheel cart, his route lying along Wabash Avenue, traversed by the two tracks of the defendant company. When he started, a horse-car of the defendant was in advance of him, going upon the right-hand track in the same direction. The plaintiff took the left-hand track, and drove along it for nearly 300 yards until he was about abreast of the car, when, seeing another car and a team approaching from the opposite direction upon the track he was pursuing, he attempted to pull over to the right-hand track, in front of the car he was passing, but at that instant the left wheel of his cart struck the end of a rail in the left-hand track, which had become loose and had sprung out of place, described by tbe witnesses as bent up like tbe runner of a sled. The result was, that the plaintiff was pitched out of his cart to the right, falling under the horses attached to the ear on the right-hand track, and that car passed over him, breaking his leg in two places and otherwise injuring him. His cart being caught and held by the end of the rail, the harness upon his horse gave way, releasing the horse. There was testimony for the plaintiff to the effect that the gait at which he was driving was “ not very fast,” while testimony for the defendant tended to show that he was driving at “ a pretty smart trot; pretty fast.” The rail causing the accident had been observed during the morning of that day to be sprung out of place, its upturned end being then between two and three feet above the ground. About eleven o’clock an employee of the defendant company came along and spiked it down, but it did not long remain in place. After it again became loose, one or more cars passed over it, the weight of the car pressing it down as the wheels ran along it, and the rail, when released from this pressure, springing up farther than it had been before. A car passed along four or five minutes before the accident. The testimony was conflicting however, as to whether the rail was then in place. At the time the plaintiff approached it, its end was at a height' of between four and five feet above the ground. The plaintiff testified that he was keeping a lookout ahead along the track, but did not see the upturned rail. Other witnesses testified that it could easily be seen twenty-five or more feet away. The thickness of the rail was about half an inch. The uncontradicted testimony of the plaintiff was to the effect that he had expended for medical services, nursing and other assistance rendered necessary by his injuries, nearly $500. He testified, also, that his earning power before the accident was at least $350 per year, and the testimony on his behalf tended to show that he was permanently disabled from following his occupation of farming. On cross-examination, he admitted that he had been drinking that day. At the close of the testimony, the court, White, J., charged the jury in part as follows : To entitle the plaintiff to recover in an action of this kind, two things are essential. One is, that the defendant company was guilty of negligence; the other is, that the plaintiff is not guilty of any negligence that contributed to the result. It is not sufficient to prove that the defendant company was guilty of negligence. [However gross the negligence of the defendant, in a case of this hind, the plaintiff cannot recover unless he was not guilty of any negligence that contributed to the result.] 4 Negligence is, in a general sense, carelessness. A man driving along a road is bound to look out, bound to keep his eyes and thoughts about him. . . . Counsel for the defendant company asks me to say, as a matter of law, that the plaintiff was guilty of negligence upon the evidence before us. In certain cases, where it is very manifest and very plain, it becomes the duty of the court to take the question from the jury in a case of this kind. I decline to do that in this case. [The jury must not infer, however, because I decline to take this case from the jury that I believe the plaintiff was not guilty of negligence. I thought it was a case where the jury ought to pass upon that question, and you are to be thoroughly satisfied, gentlemen, that this accident did not occur in consequence of the carelessness of the plaintiff in his driving. You are to be satisfied on that point, because the duty of the plaintiff is, not only to prove negligence on the part of the defendant, but also to prove that he was clear of contributory negligence. That must appear, that he was entirely clear of any carelessness or negligence that contributed to the result. Contributory negligence in this case would be, of course, careless driving, neglecting to look ahead. The witnesses on the part of thq plaintiff testified yesterday that this rail was up from four to five feet high; that is, the end of it; witnesses who looked and saw it from the side. The witness, Day, said this morning that he thought it was about three feet and a half high. Now, if the rail was up from four to five feet high, could not the plaintiff have seen it if he had looked ahead of him ? That is the question. He was bound to look ahead. If he had done so, could he not have seen the rail projecting ? The plaintiff’s counsel suggests that it was projecting in such a way that he would be looking at the end of it, but could he not have seen the rail 50 or 100 feet away before he came to it, if he had been looking? Those rails are sometimes covered with mud, but are generally a little brighter that the ground around; and if that rail had been up four or five feet high, there would have been considerable space along the track where there was no rail, and the side of the rail would have been towards him, not the edge of it, as viewed from the side of the pavement. The plaintiff says he did look ahead. The accident occurred suddenly and he was pitched suddenly under the horses, and the car immediately went over him. But was he ? That is for you to say. Were the circumstances such that if he had been looking he would have seen the rail? Not whether he did see it; that is not the question; but, if he had been looking as he was bound to, to see what was ahead of him, could he not and would he not have seen the rail projecting ? If so, then he is guilty of contributory negligence in not looking, and if that is a fact, he cannot recover at all.] 4 . . . . The court is requested to charge for the plaintiff: 1. That it was the duty of defendant company to keep the track of its railway in proper repair, so as to do no injury to the public. This is a condition attendant upon the grant of the franchise to construct it for profit, and, if it neglected or refused to do so, by reason whereof the plaintiff sustained injuries, the defendant company is liable in damages therefor. • Affirmed, provided the plaintiff was not guilty of contributing negligence. 2. That if the jury believe that the plaintiff was thrown from his cart by the loose and upturned rail of the defendant company, by reason whereof he was injured, the verdict must be for the plaintiff. Answer: This point ignores the question of contributory negligence, and is therefore refused.3 5. That the measure of damages for the personal injuries done plaintiff, resulting from the negligence of the defendant company, is the direct expense incurred by plaintiff, the privation and inconvenience he has been subjected to, the pain and suffering, bodily and mental, which he has endured, or is likely to experience, and the pecuniary loss he has already sustained, and is likely to sustain during the remainder of his life, as a result of his injuries. Answer: If the plaintiff is entitled to recover, this point correctly states the measure of damages. —It was stated in the appellant’s paper-book that when the jury in charge of a tipstaff were on the way to the jury room, one of the jurors strayed off from the rest of the panel, and wandered around through the corridors of the court house for some time before he was found and placed with the other jurors, and that this fact was brought to the attention of the court below. The record contained, however, no exception relating to the matter. The jury returned a verdict in favor of the plaintiff for six and one fourth cents. A rule for a new trial having been argued before the court in banc, the following opinion and order were filed, White, J.: The evidence showed gross negligence on the part of defendant company in not keeping its track in repair, and the court so said to the jury. The only question was, was the plaintiff guilty of contributory negligence ? The verdict for six cents damages is inconsistent and unreasonable. It means that the plaintiff was not guilty of contributory negligence, or that he was guilty, and therefore nominal damages are given. Can we let such a verdict stand ? If the plaintiff was not guilty of contributory negligence, he should, under the evidence in this cause, have had more; if guilty, none. We can hardly let the verdict stand, on the ground that the jury meant to put the costs on defendant. They had no right to do so, if they found for the defendant on the question of contributory negligence. The case would be a bad precedent for the future. I think the plaintiff was very careless in his driving, and, perhaps, was not in a proper condition to guard against accidents. But the railway track was in a very bad and dangerous condition. It ought to suffer for as gross negligence as was shown in this case. It may be a useful lesson for the future, and save others from accidents. I do not believe the plaintiff was permanently injured or disabled. His injuries, however, were of a serious character, and entailed considerable expense. It is hard that he should suffer so greatly because of the gross negligence of the defendant company, and yet the company go scot free because of some contributory negligence on the part of plaintiff. There are some equities in the case which the court may properly consider on this motion. It is true the rigid rule of law will not allow the court or jury to apportion damages according to the relative negligence of the plaintiff and defendant. Yet, in granting or refusing a new trial, the court has power to impose conditions which are plainly just and equitable. A new trial in this case might result in a clear verdict for the defendant, or a verdict for a very large sum for plaintiff. It is a fair case for a compromise. Under the admitted facts and circumstances, I think the defendant company can well afford to pay the plaintiff four hundred dollars, and he should be satisfied with that sum. I suggest that compromise, and make the following order to enable the parties to carry it out: And now, June 19, 1890, it is ordered that if the defendant eompanjq within thirty days from this date, shall pay the plaintiff four hundred dollars, with costs of this case, then new trial is refused; otherwise new trial will be granted.6 —The plaintiff having refused to accept $400, when tendered to him by the defendant, judgment was entered on the verdict, whereupon the plaintiff took this appeal specifying that the court erred: 0 1. “ In permitting the fourth juror to remain in the panel, after he had given a good and valid reason why he could not serve.” 2. “In permitting the verdict of the jury to be rendered and entered, after it was known that the second juror had for some time been separated from the other jurors in the jury room.” 8. In refusing the plaintiff’s second point.3 4. In the portions of the charge embraced in [ ] 4 5. In making the order of June 19, 1890.6 6. In entering judgment on the verdict. 1. Unfortunately, the subject matters of the first and second assignments of error are not of record; but the facts are undisputed, and it is submitted they are well worthy of consideration at this time. No case can be cited which bears directly upon these assignments, but they come within the spirit of Mencb v. Bolbaeb, 4 Phila. 68, holding that any irregular act on the part of a juror is ground for a new trial. The fourth juror being dependent upon and under the control of his employer, was disqualified: Cummings v. Gann, 52 Pa. 484 Hubbard v. Rutledge, 57 Miss. 7; Central R. Co. v. Mitchell, 63 Ga. 173. And the rule of law as to contributory negligence was stated incorrectly, or at least too broadly, so as to mislead the jury: Patterson’s Ry. Acc. Law, § 55. The facts of the case disclosed nothing warranting the belief that the plaintiff was in any degree guilty of contributory negligence: Shear. & Redf. on Negl., § 462; Patterson’s Ry. Acc. Law, § 50. 2. The court, in answering plaintiff’s fifth point, laid down the proper measure of damages. But as the jury perversely disregarded the instruction, a new trial must be granted, whether the judge was right or wrong: Flemming y. Insurance Co., 4 Wh. 59; Ross v. Eason, 1 Y. 14; Smith y. McCormick, 2 Y. 164; Le Van y. Railroad Co., 5 W. N. 293 ; Hawman y. Turnpike Co., 2 Woodw. 332. The error was not cured by the order of the court, making a new verdict of $400. The power of the court to reduce verdicts is well recognized, but there are no precedents in this state supporting the order made by the court below. Moreover, the verdict, as rendered, was brought about by erroneous instructions of the court on the subject of contributory negligence, and the court, in granting a new trial for its own error, ought not to impose terms: Mc-bride v. Daniels, 92 Pa. 332. Error cannot be assigned to a matter not apparent on the record: Rogers v. Whiteley, 38 Pa. 137; Jones v. Dilworth, 63 Pa. 447 ; Commonwealth v. Ware, 137 Pa. 465. The testimony establishes clearly that the plaintiff was guilty of contributory negligence ; and if his injury was contributed to by his negligence in any degree, he cannot recover: Thirteenth St. Ry. Co. v. Boudrou, 92 Pa. 475. It is clear that if he had used his eyes he would not have been hurt. Even if a plaintiff swears that he looked and did not see, yet, if from other evidence in the case it appears that looking would have disclosed the danger, he cannot recover: Barnes v. Sowden, 119 Pa. 53; Carroll v. Railroad Co., 12 W. N. 348 (2 Penny. 159) ; Reading etc. R. Co. v. Ritchie, 102 Pa. 425; Moore v. Railroad Co., 108 Pa. 349; Penna. R. Co. v. Bell, 122 Pa. 58; Marland v. Railroad Co., 123 Pa. 487. Error does not lie to an order refusing a new trial: Thompson v. Barldey, 27 Pa. 263; Howser v. Commonwealth, 51 Pa. 332. And the right to impose terms was incident to the discretion appealed to by the motion for a new trial: Huston Tp. Ins. Co. v. Beale, 110 Pa. 321. The verdict, in effect, was one in favor of the defendant, but imposing the- costs upon it.
139 Pa. 414Jinks v. Banner Lodge No. 484 (1891)
1 OF ALLEGHENY COUNTY. No. 171 October Term 1890, Sup. Ct.; court below, No. 497 September Term 1888, C. P. No. 1, in Equity.
139 Pa. 419Lockhart v. Craig St. Ry. Co. (1891)
139 Pa. 429White v. Patterson (1891)
APPEAL BY DEFENDANT FROM THE COURT OE COMMON" PLEAS OE BEAVER COUNTY. No. 173 October Term 1890, Sup. Ct.; court below, No. 1 June Term 1890, C. P. in Equity. On March 11, 1889, Robert White filed a bill in equity against Sallie H. Patterson, praying that the defendant be declared a naked trustee of the legal title to the “ coals, ores, minerals and fire clays,” in and under a certain tract of land containing one hundred acres, and that she be ordered to convey the same by a sufficient deed to the plaintiff. , A demurrer to the bill was sustained in part by the court, Wickham, P. J., whereupon the plaintiff amended by introducing some additional averments. A second demurrer to the bill as amended having been overruled, tlie defendant filed an answer, and, issue having been joined, the cause was referred to Mr. F. H. Agnew, as examiner and master, who subsequently made a report finding the following facts: John White, Sr., owned a tract of land in Beaver county containing 400 acres, and lived thereon with his family, among whom was his son, Robert White, the plaintiff, and another son, John White, Jr. The 100 acres mentioned in the bill formed a part of said tract of 400 acres. An article of agreement was made January 31,1843, between John White, Jr., and the plaintiff, whereby John White, Jr., agreed to sell and convey to the plaintiff all his interest in the aforesaid 100 acres, accruing at the death of their father, John White, Sr., the plaintiff then to give up to him his note for 11,000. John White, Sr., died in 1846, seised, inter alia, of the said 100 acres, and devised the same in fee-simple to the said John White, Jr. In 1847, John White, Jr., thus holding the fee-simple of the 100 acres, after survey made delivered possession of the same to Robert White, the plaintiff, and the plaintiff gave up to him his said note for $1,000. The plaintiff, after his entry into possession in 1847, remained in peaceable, continuous, open, notorious, exclusive and adverse possession of the said 100 acres, making improvements thereon and paying all the taxes, which had been assessed wholly in his name. John White, Jr., died in 1856, without having, made a deed to the plaintiff for the 100 acres, and without providing for the same; but no demand for a deed was shown by plaintiff. Prior to his death, John White, Jr., with Esther, his wife, on November 2, 1854, made a deed, in fee-simple, for “all the coals,, ores, minerals, clays and fire clays ” under the said 100 acres, together with very extensive and somewhat unusual surface rights pertaining to the same, to James Patterson, which deed was recorded May 7, 1855, prior to the record of said agreement, which was not recorded until June 12, 1855. The deed to James Patterson was to the prejudice of the plaintiff’s rights and in violation of the agreement aforesaid. But, so far as James Patterson was concerned, no fraud was alleged or shown. The only evidence as to this was the deed itself, recorded prior to the said agreement and admitted by the plaintiff to be the legal title and therefore with the presumption in its favor, containing evidence of valuable consideration and the receipt thereon of John White, Jr., for the purchase money, $325, to which may be added the oath of the defendant, claiming the adverse and the complete legal and equitable title. From all these facts and presumptions the master deemed himself justified in finding that James Patterson was, in fact, a bona-fide purchaser for value. There was no evidence of actual notice to James Patterson of either the plaintiff’s possession or title, or of John White, Jr.’s fraud, and his relation to the plaintiff as the trustee of his legal title. The plaintiff was in possession, at the time of the said deed to James Patterson. James Patterson and Eliza, his wife, by deed dated June 23, 1855, and recorded July 24, 1867, conveyed his interest in the coals, ores, etc., to Sarah Harrison, wife of Wm. Harrison. Sarah Harrison was a bona-fide purchaser for value, and without any notice of the title of the plaintiff, or of the fraud of John White, Jr., or of the trust in him in the plaintiff’s behalf, saving and except such notice as might be construed from the plaintiff’s possession, of which she had no actual notice, and from the fact of the said agreement being on record at and prior to her deed. Sarah Harrison, by will duly admitted to probate August 20, 1888, her death occurring March 10, 1888, devised her said interest in the coals, ores, etc., aforesaid, to Sallie H. Patterson, the defendant. The findings as to Sarah Harrison were true also as to the defendant, with the additional fact that the proceedings for specific performance at No. 12 March Term 1886, infra, existed at and prior to the devise aforesaid. In neither the defendant’s nor Sarah Harrison’s case was there any evidence of actual notice of any of these prior records. By proceedings in the Orphans’ Court at No. 12 March Term 1886, for specific performance of said agreement, W. H. Part-ington, administrator of the said John White, Jr., by decree of said court executed and delivered a sufficient deed, dated June 15, 1886, to the plaintiff, vesting in the plaintiff the legal estate in the 100 acres aforesaid, so far as it was possible for the same to be performed on the part of John White, Jr., after his said deed to James Patterson; and Esther White, widow of John White, Jr., gave a release of dower to the plaintiff, by-deed dated January 5, 1886, and recorded June 16, 1886. Upon the facts so found, the master reported his conclusions of law in substance as follows: 1. The possession of the plaintiff was constructive notice of his title to James Patterson, who therefore bought with notice thereof, and, as is shown by the facts found, it was the better title. 2. John White, Jr., was a naked trustee for the plaintiff, but as James Patterson was a bona-fide purchaser, without actual notice of either the possession or title of the plaintiff, of the fraud of John White, Jr., or of the trust in him on behalf of the plaintiff, said trust, being necessarily a constructive or resulting trust, can be fastened on James Patterson only by construetive notice arising out of the plaintiff’.s possession, which the master holds to be sufficient for that purpose. 3. The defendant and Sarah Harrison are in no better position, so far as constructive notice of the trust is concerned, than James Patterson; but, if the trust fails as to him, it must fail also as to the defendant, even though she had notice. 4. The court has jurisdiction of the case. 6. The proceedings for specific performance in the Orphans’ Court are not conclusive on the plaintiff. 6. The plaintiff is entitled to relief, notwithstanding acquiescence, laches or delay for thirty-three years. 7. Sufficient privity between the defendant and John White, Jr., to justify the relief sought, has been shown, and the relation of trusteeship exists between the plaintiff and the defendant. —Explaining that his conclusions of law as to the sufficiency of constructive notice from possession to impose a trust upon an innocent bona-fide purchaser for value, and as to the effect of laches upon such a trust, were based upon the rulings of the court in overruling the demurrer to the bill, and that these questions had not been squarely brought before the court in the argument of the demurrer, the master recommended that they be fully heard and considered by the court, and reported 6 in the alternative as to the decree to be entered, viz.: That, in case the court should reaffirm the points recommended for further hearing, a decree be made in accordance with the prayer of the bill; but, if the court should refuse said points, or any of them, that other relief be granted or the bill be dismissed, as might seem meet. The master stated his own views upon these subjects as follows : The question of possession being constructive notice of the title, and of being notice of the trust, are quite distinct. That it is of the title, is good law: Hottenstein v. Lerch, 104 Pa. 455, and Rowe v. Ream, 105 Pa. 548; and equity following the law, it is properly so held in this case. But, such notice of title is in reality in derogation of the recording act and not a subject always agreed upon by courts. To hold that possession is notice, also, of a trust, is to go a step farther, and tends to weaken the effect and intention of the recording acts. That the law should cast a trust upon an innocent purchaser, who supposes he is getting a complete title, the record being all right, and pays his money therefor, simply because of laches in not noticing the possession of the land, seems straining the idea of privity which lies at the bottom of a trust. But it is held as late as in Brickell v. Earley, 115 Pa. 473, that as to realty a constructive or resulting trust may arise only in the case of fraud or the payment of the money of another. Such a rule serves to quiet title, but to hold as the plaintiff must ask in this case, is but to disturb title. But, more; the plaintiff was guiltjr of laches in not demanding the legal title from John White, Jr., for so long a time after 1847, and he was guilty of laches in not putting on record within reasonable time bis article of agreement; and again guilty of laches in making no demand for some thirty-three years of James Patterson and his assigns to execute the trust. Does he come into a court of equity with clean hands, such that at his demand the law shall cast upon the defendant a trust because of her laches in buying without noticing his possession ? It does not seem equity. But, supposing Patterson was affected by the trust, is not the plaintiff by all analogy barred from enforcing it after a lapse of thirty-three years? The plaintiff’s true remedy would seem to be a bill quia timet: Bispham’s Eq.,' § 575. —Upon exceptions to the report of the master, the court, Wickham, P. J., filed an opinion in part as follows: A careful examination of the evidence fails to reveal any error in the master’s findings of fact, save so far as they relate to the matters complained of by the plaintiff in his exceptions. In holding that James Patterson was shown by the evidence to have been a bona-fide purchaser, for value, the master erred, as will appear from the following reasons: First, the plaintiff’s actual possession of the land bought by him from John White, Jr., was constructive notice of all his rights thereto and therein, and he who has either actual or constructive notice, is not, in law, regarded as a bona-fide purchaser, even though he pay full value: Garrard v. Railroad Co., 29 Pa. 154; McCray v. Clark, 82 Pa. 457. Second, there is nothing in the case, save the recital in the deed and the receipt attached thereto, to show the payment of the purchase money. These things, although sufficient as regards the vendor, are mere hearsay, so far as the plaintiff is concerned, and amount to nothing. [The court here cited and quoted from Lloyd v. Lynch, 28 Pa. 419, and Penna. Salt Mfg. Co. v. Neel, 54 Pa. 9, and continued:] It is needless to cite further authorities. It will be observed, moreover, that the bill does not admit nor the answer assert, as a fact, that Mr. Patterson was a purchaser for value. In view of something said by the defendant’s counsel and also stated by the master in his report, it is perhaps necessary to consider more fully than was done in the former opinions, the nature of the trust imposed on John White, Jr., and his successors in title, by his contract with the plaintiff. It may be termed a trust by equitable construction in the absence of fraud: Hill on Trustees,4th Am. ed., 272, § 171. “Thevendor’s legal estate is held by him on a naked trust for the vendee ; this trust, impressed upon the land, follows it in the hands of the persons who .may succeed to his legal title, his heirs and his grantees, who take with notice of the vendee’s equitable right:” 1 Pomeroy’s Eq. J., § 868. The case of Brickell v. Earley, 115 Pa. 473, cited in support of the theory that a constructive trust in land can arise only when title has been derived through fraud, or through purchase with another’s money, contains that doctrine only in the syllabus, which grossly misrepresents the meaning of the opinion. All that the court decided was, that, under the circumstances of the case, the defendant could not be held liable as a trustee of a resulting trust, unless it were shown that he was guilty of fraud or had bought with the plaintiff’s money. It never was intended to deny the existence of what is perhaps the most common constructive trust now known to our law, namely, that arising from purchase of lands by articles of agreement. Perhaps it is hardly necessary to say, although the circumstances of the case suggest the remark, that where one agrees to convey land for a valuable consideration, which land he does not then own, but afterwards acquires, he will hold it, when acquired, as a trustee for his vendee. Notwithstanding the able and ingenious arguments of the defendant’s counsel, that the plaintiff is precluded, by laches, from relief, the court cannot assent to this view. The plaintiff fully complied with his contract, took possession of the land, and held it undisturbed. No one ever attempted to mine or even prospect under the Patterson title. Indeed, so far as the evidence shows, we do not know that the plaintiff actually had knowledge of the deed to Mr. Patterson. But, even if he had, it would not matter. Under the circumstances, delay in bringing suit was not laches. The authorities cited on this point by the defendant’s counsel, apply to an entirely different class of eases. This case is governed by the rule laid down by Mr. Justice Agnew, in Richards v. El well, 48 Pa. 861. In the words of that decision, “ Neither law nor equity impute laches to one in possession.Had the possession been fiduciary, by reason of the non-payment of purchase money, or some unperformed duty; or, had some right of the vendor remained to be protected, which, in equity, required the purchaser to be prompt, eager and active, it might be different. But Dunn owed no duty, while his vendor, for twenty-nine years before suit brought, had owed him a conveyance.” This decision is also important on the question as to the degree of proof required on the part of the vendee, in a case like the one under consideration. In Du Bois v. Baum, 40 Pa. 537, Mr. Justice STRONG- says: “His,” the purchaser’s “possession would have been constant action under the contract.” Some stress is laid by defendant’s counsel on the alleged severance of the minerals from the surface of the land, by the deed of John White, Jr., to James Patterson. As John White, Jr., had long before this sold the land, minerals and all, to the plaintiff, who had paid therefor and was in possession, he, John, while he might convey the naked title to the minerals, certainly could make no severance that would injuriously affect the real owner’s right. A few words may be added to what was said in the former opinion on the question of jurisdiction,* as it is still contended by the defendant’s counsel that the plaintiff’s remedy, if he has any, must be sought in the Orphans’ Court. John White, Jr., before his death, parted with both the legal and equitable titles to the minerals in controversy. The act of February 24, 1834, § 15, gives the Orphans’ Court jurisdiction only where the decedent dies “ seised or possessed ” of the real estate he contracted to convey. On this point, comment is made as follows, in Scott on the Intestate Laws, 1st ed., 434: “ The second condition, necessary to support a petition for a decree under the statute, that the vendor shall have died seised or possessed of tbe estate sold, places tbe act in apparent antagonism to a general custom of tbe country, and is irreconcilable with tbe tenor of the sixteenth century. But, to reconcile what should never have stood apart, the Supreme Court has emphatically held that the language of the statute must be satisfied by a legal or constructive seisin.” I have no knowledge that any court has ever gone further than this, in extending the operation of the statute. Would not Robert White, with the knowledge he now possesses, be guilty of something like perjury, if he were to present in the Orphans’ Court a petition, duly sworn to, alleging that John White, Jr., died either actually or constructively seised of the minerals in dispute ? The exceptions need not be further considered. —The court thereupon entered a final decree, [adjudging the defendant to be a naked trustee for the plaintiff of the legal title to the coals, etc., mentioned in the bill,] 9 and [ordering and decreeing that she convey the same to the plaintiff within twenty days, and that she pay the costs.] 10 Thereupon the defendant took this appeal, specifying, inter alia, that the court erred: 2. In not finding that the plaintiff’s possession did not extend to the coals, etc., in and under his land. 8. In overruling the master’s finding that James Patterson, Sarah Harrison, and the defendant were bona fide purchasers for value. 5. In holding that a court of equity had jurisdiction of this case. 6. In not holding the plaintiff concluded by the proceedings in the Orphans’ Court. 7. In not holding the plaintiff barred by laches and delay. 9, 10. In decreeing as set forth in [ ] 9 10
139 Pa. 439Republic I. Works v. Burgwin (1891)
2 OP ALLEGHENY COUNTY. No. 223 October Term 1890, Sup. Ct.; court below, No. 393 January Term 1889, C. P. No. 2, in Equity. On December 7, 1888, tbe Republic Iron Works, Limited, filed a bill in equity against Hill Burgwin and John 0.
139 Pa. 448Black Lick Mfg. Co. v. Saltsburg Gas Co. (1891)
139 Pa. 457Common'h v. New York Etc. R. (1891)
No. 180 October Term 1885, Sup. Ct.; court below, No. 151 May Term 1884, C. P. To the number and term of the court below, Mr. Lewis C. Cassidy, Attorney General, on behalf of the Commonwealth of Pennsylvania, filed an information in quo warranto against the New York, Lake Erie & Western Railroad Company, a corporation of the state of New York, with notice to the North Western Mining & Exchange Company, a Pennsylvania corporation, for the purpose of escheating to the…
139 Pa. 461Estate of Watson (1891)— Affirmed at Bar
139 Pa. 464Randall v. Frankford Etc. R. (1891)— Affirmed at Bar
139 Pa. 467Albert v. Board of Revision (1891)— Quashed at Bar
139 Pa. 469Clark v. Fell (1891)— Affirmed at Bar
139 Pa. 470Sherry v. Plasterers' Union (1891)
1 OF PHILADELPHIA COUNTY. No. 332 January Term 1890, Sup. Ct.; court below, No. 379 September Term 1889, C. P. No. 1. Held: as provided by § 1, article XV. of the by-laws of defendant corporation, ‘ on Tuesday evening of each week at 8 o’clock; ’ and, having thus failed to pay the dues for the said months of May, June and July, 1887, and having died after the expiration of the said month of July, 1887, he was more than three months’ dues in arrears, and…
139 Pa. 473Campbell Etc. Co. v. Hering (1891)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 4 OP PHILADELPHIA COUNTY. No. 335 January Term 1890, Sup. Ct.; court below, No. 444 December Term 1889, C. P. No. 4. On December 16,1889, the Campbell Printing Press & Manufacturing Company brought assumpsit against Walter E. Piering, filing a statement of claim to recover two instalments of rent due for the hire of a printing press, under the terms and conditions of a contract under seal, dated July 23, 1889, a copy of which was attached as an exhibit. The said contract was headed, “ Campbell Printing Press and Manufacturing Company, 160 William St., New York; 306 Dearborn St., Chicago,” and provided that the said company had let and hired for use to the defendant a certain printing press, at the rent or hire of $2,000, payable in specified instalments, and that upon the prompt payment of said instal-ments when due, and an additional sum thereafter, a bill of sale of the press would be executed. On January 28, 1890, the defendant filed an affidavit of de-fence averring as follows: “ That the plaintiff is a corporation organized under the laws of the state of New York; and deponent is informed by letter from the office of the Secretary of the Commonwealth of Pennsylvania, and therefore avers, that the said Campbell Printing Press and Manufacturing Company has not filed a statement in the office of the Secretary of the Commonwealth and complied with the provisions of the act of assembly of April 22, 1874, entitled ‘ An Act to prohibit foreign corporations from doing business in Pennsylvania without having known places of business; ’ and deponent is advised and avers that said Campbell Printing Press and Manufacturing Company consequently cannot maintain an action in any of the courts of the commonwealth of Pennsylvania.” On February 8, 1890, a rule for judgment for want of a sufficient affidavit of defence was made absolute, without opinion filed, and judgment entered in favor of the plaintiff for $1,028.83. Thereupon the defendant took this appeal, assigning the order making the rule for judgment absolute, for error. Counsel cited: Act of April 22, 1874, P. L. 108; act of June 1, 1889, P. L. 427 ; § 5, article XXI. of the constitution; Thorne v. Insurance Co., 80 Pa. 15; List v. Commonwealth, 118 Pa. 822; Doyle v. Insurance Co., 94 U. S. 585; Phila. Fire Ass’n v. New York, 119 U. S. 117; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Pembena Mining Co. v. Pennsylvania, 125 U. S. 181; Holt v. Green, 73 Pa. 198; Johnson v. Hulings, 103 Pa. 498; Tenant v. Tenant, 110 Pa. 478; Mullen v. Morris, 2 Pa. 85; Forepaugh v. Railroad Co., 128 Pa. 217. Counsel cited: Stewart v. Insurance Co., 9 W. 126; Commonwealth v. Standard Oil Co., 101 Pa. 145 ; Kilgore v. Smith, 122 Pa. 48.
139 Pa. 476Ch. Tyrrell L. & B. Ass'n v. Haley (1891)
APPEAL BY DEPENDANT PROM THE COURT OP COMMON PLEAS NO. 4 OP PHILADELPHIA COUNTY. No. 394 January Term 1890, Sup. Ct.; court below, No. 344 June Term 1888, C. P. No. 4. On June 6, 1888, with leave of the court below, judgment was entered in favor of the Charles Tyrrell Loan & Building Association of the city of Philadelphia, against Jeremiah Haley, upon a bond containing a warrant of attorney to confess judgment, dated December 14, 1877, and conditioned for the payment of a loan of $1,200, made to the defendant by the plaintiff, within nine years from date, with lawful interest, fines, etc., and a monthly contribution of six dollars on six shares of stock in the plaintiff association, all payable monthly, on the fourth Monday of each month; provided that in case of default for six months in the payment of interest, fines or monthly contributions, the whole debt should at the option of the association become due and payable. On June 21,1888, on application of the defendant, the court granted a rule to open the judgment and let the defendant into a defence, which was afterwards made absolute. Thereupon an issue was framed to try the plaintiff’s right to recover, the defendant pleading payment. At the trial, February 10, 1890, the following facts were shown upon the part of the defendant: The defendant was a stockholder in the plaintiff association, holding six shares of stock which formed a part of a series started in May, 1887. In December of that year he borrowed from the association, upon said shares, the sum of $1,200, at a premium of ten per cent, giving a bond and mortgage therefor, and assigning his six shares of stock to the association as collateral security. The bond so given was the one upon which judgment was entered in this case. Article XII. of the constitution of the association provided as follows: “ When it shall be ascertained that the value of each share of stock amounts to two hundred dollars, a meeting of the stockholders shall be convened, at which time a division shall take place, and the holder of each share of stock shall receive the sum of two hundred dollars, or his or her own securities to that amount, witb the same fully satisfied and discharged of record, and this corporation shall cease and determine.” The defendant paid to the association the monthly dues upon his stock, interest upon the loan, and fines, until November, 1887, in which month the annual meeting of the stockholders was held. Thereafter, claiming that the series of stock had matured by attaining the value of $200 per share, and that his indebtedness to the association was thereby extinguished, he declined to pay any more.* Joseph Sheehan, being called and sworn for the defendant, testified that he was connected with various building associations, but was not a member of the plaintiff association. Thereupon, the defendant made the following offers: Defendant offers to prove by this witness that the division of profits made by the officers of this association was not correct, and that the stock of the association, from which defendant borrowed, had, in November, 1887, attained a value of $200 per share. Objected to by plaintiff’s counsel, unless made more specific. The defendant offers to prove by this witness that the stock in the series, in which defendant was a stockholder and had borrowed the loan in controversy, had reached a value of $200 ; and, fuither, that the stock upon which he had borrowed the loan in controversy was worth in November, 1887, $218.24 a share. Objected to by plaintiff, because the constitution and bylaws provide a method for division of profits, and witness could testify only as a matter of judgment. By the court: Objection sustained; exception.1 The testimony for the defendant being closed, the court, WILSON, J., directed tbe jury to find a verdict for the plaintiff for the full amount of its claim. The jury, accordingly, returned a verdict for tbe plaintiff for $ 1,418.05. A rule for a new trial having been refused, and judgment entered, tbe defendant took this appeal, specifying that the court erred: 1. In refusing the defendant’s offer.1 2. In directing a verdict for tbe plaintiff. The trial judge evidently proceeded on the general theory that the value of the stock could not be shown, as an extin-guishment of the debt, where the party was in arrears. This was manifestly error, since the terms of article XII. of the constitution of the society are conclusive as to the defendant’s rights. That article provides that when the shares of stock reach the value of $200 each, the borrower is entitled to have his securities returned and canceled. This was a suit on one of the securities given by the defendant under the constitution, which therefore became a part of the contract. What, then, could be more pertinent to the issue than to show that the series of stock which included that of the defendant, had reached the value which the constitution said should be considered full payment and satisfaction of such securities ? The value of the stock in any other series is immaterial. 1. The defendant did not ask credit at the trial for the payments he had made on his stock, but staked his whole defence on the idea that, according to his method of calculating the proper division of profits, his stock should have matured in November, 1887; and, being of that opinion, he took the risk of refusing to make any more payments after that time. He was not entitled under the constitution to credit for any profits, until the stock became worth $200: Watkins v. Building Ass’n, 97 Pa. 528. He was not a withdrawing member, and could not be, because he was a borrower: Watkins v. Building Ass’n, supra. By refusing to make further payments he put himself in the position of a delinquent. 2. One stockholder in a building association cannot assume for his own benefit that his stock has matured, against the aetion of tbe whole body of stockholders who declare that it has not matured, and thus disarrange the whole system of division of profits, especially when he never objected at any meeting. There is nothing in the record to show that the defendant ever objected to the division of profits made in November, 1887. The constitution provides that the final division of profits and cancellation of securities shall take place at a meeting of the stockholders convened, “when it shall be ascertained that the value of each share of stock amounts to $200.” A jury cannot determine the question of maturity when the constitution provides that the stockholders shall do so. 3. The court below did not rule, as the defendant seems to» think, that the question of maturity of stock could not be considered. The rejected offer of testimony did not propose to show that the stock had matured in the manner prescribed by the constitution; hut that, according to the opinion of one Mr. Sheehan, who was not a member of the association at all, and who was not shown to be competent to give an opinion, the stock should have matured in November, 1887. Disregarding this clearty incompetent offer, how could the court do otherwise than direct a verdict for the plaintiff? There was no offer to show that the stockholders had declared this stock matured, and, in fact, the defendant’s own evidence showed that they had not.
139 Pa. 483Philadelphia v. Evans (1891)
[To be reported.] (а) By § 40, act of February 2, 1854, P. L. 43, constituting the present city of Philadelphia by consolidating the old city with certain incorporated districts and townships, it is provided that the paving of streets, at the expense of the owners of abutting property, may be prescribed by ordinance, and that liens may be filed for the same, “ as is now practiced and allowed by law: ” 1. The expression quoted does not apply to the kind of paving, but to the filing of the lien; and under that act and its supplements, the city is not restricted to the use of such pavements as were known and used in 1854, but councils have discretionary power to pave streets at the cost of abutting owners, with granite blocks, or other more durable and expensive paving than any used at that time. 2. The fact that a street, except certain spaces in the middle thereof reserved for use as market places, has already been paved with cobble stones, at the expense of property owners, cannot exempt abutting owners from the cost of paving such spaces, upon the termination of their use for market purposes, nor prevent the city from adopting for them a more expensive paving and making assessments for its entire cost. (б) A special act, incorporating a street-railway company, subjected it to the provisions of all ordinances of the city then existing or thereafter to be passed, regulating passenger railways; and, at the time of such incorporation, there was in force a city ordinance imposing upon such companies the duty of paying the costs of paving ary street, avenue or alley occupied by them: 3. Said act of incorporation did not impose upon the company thereby created a statutory duty of paving streets, in such a sense as to prevent the city councils from terminating its obligation to pay for such paving by repealing said ordinance; the duty imposed by the act was not a fixed but a shifting one, subject to regulation or repeal at the will of councils by any future ordinance. 4. The fact that an unusual and -unsuitable season was selected by the city authorities for paving a particular street, whereby its cost was increased, does not present a defence under § 1, act of April 19,1843, P. L. 343, allowing abutting owners to take defence to assessments for paving, on the ground that the price charged is too high, when there is nothing to show that such selection was an improper exercise of discretion.
139 Pa. 492Whiteman v. Fayette Fuel-Gas Co. (1891)
No 94 January Term 1891, Sup. Ct.; court below, No. 161, C. P. in Equity.
139 Pa. 497General Assembly v. Gratz (1891)
139 Pa. 513Borland v. Meurer (1891)
1. A third person, who, with money raised upon his own note, though with the aid of securities of the mortgagor, pays off an execution from a judgment on a mortgage bond, and has the judgment marked to his use, acquires not only control of the judgment but also the right to an assignment of the mortgage. 2. In such case, on failure of terre-tenants to discharge the mortgage subject to which they hold the mortgaged premises, the purchaser of the judgment may proceed by scire facias on the mortgage in the name of the mortgagee, without express authority from the latter. 3. Where the court below, without giving specific answers to points presented for chai'ge, declined to affirm them, generally, a specification of error which groups the refusal of all the points into one assignment, is not in compliance with the Rules of the Supreme Court.
139 Pa. 522Campbell v. Frankford Etc. Ry. Co. (1891)
3 OP PHILADELPHIA COUNTY. No. 406 January Term 1890, Sup. Ct.; court below, No. 50 September Term 1889, C. P. No. 3. On September 18,1889, Elizabeth Campbell brought trespass against the “ Frankford & Southwark City Railway Company,” for negligence causing personal injuries to the plaintiff.
139 Pa. 534Phila. Trust Co. v. Phila. & R. C. & I. Co. (1891)
APPEAL BY DEPENDANT PNOM THE COURT OE COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 410 January Term 1890, Sup. Ct.; court below, No. 887 June Term 1886, C. P. No. 2, in Equity. On August 4,1886, the Philadelphia Trust, Safe Deposit & Insurance Company, administrator d. b. n., c. t. a., of the estate of William Richardson, deceased, and trustee under the will of said decedent, filed a bill in equity against the Philadelphia & Reading Coal & Iron Company, praying for a decree that the defendant deliver to the plaintiff certain mortgage bonds, made by the defendant, eighteen in number, and of the denomination of $1,000 each, averred to be the property of the estate of the plaintiff’s testator, and to be wrongfully detained by the defendant. After answer and issue joined, the cause was referred to Mr. Greorge M. Dallas, as examiner and master, who found in substance the following facts: On January 19, 1872, Greorge J. Richardson, John B. Okie, and Thomas Webster, surviving and continuing executors and trustees under the will of William Richardson, deceased, in the exercise of powers conferred upon them by said will, agreed, by sealed articles of agreement, to sell and convey certain coal lands, in fee-simple, subject to a mortgage thereon for $55,000, held by the executors of James Dundas, deceased, unto the defendant, the Philadelphia & Reading Coal & Iron Company, for the sum of $420,000. Said lands were then in the possession of John Lucas & Co., tenants under a mining lease, and the property was to be conveyed to the defendant subject to said lease. The purchase money was to be paid in seven per cent mortgage bonds, guaranteed by the Philadelphia & Reading Railroad Company, and payable in twenty years from January 1, 1872; and the contract contained the following clause: “ 7. This agreement shall bear date as of the first day of January, A. D. 1872, so that all the rents and profits of the said land shall be paid and belong to the said party of the second part, and interest on the said consideration price from said time shall be allowed to the said party of the first part.” The coal lands were conveyed to the defendant, in pursuance of said contract, by a deed dated January 1, 1872, acknowledged by all the trustees on July 19, 1872, and delivered on July 24, 1872. Contemporaneously with the delivery of the deed, John B. Okie, one of the trustees, received from the defendant, on account of the consideration, bonds to the amount of $402,000, and interest on the whole $420,000 from January 1, to July 1,1872, and executed an agreement, dated July 24, 1872, purporting to be between the defendant company, party of the first part, and Messrs. Richardson, Okie and Webster, executors and trustees, as parties of tbe second part. This agreement recited the contract of January 19, 1872 ; stated that by the provisions thereof the rents and profits of the lands from January 1, 1872, were to be paid and belong to the coal and iron company, and interest on the consideration price, at seven per cent, from the same date, was to be paid to the trustees; recited the payment of such interest to July 1, 1872, and the non-payment to the coal and iron company of the rents of said land for the months of January to June inclusive, amounting to $17,308.69, “ which said amount is due by the said executors to the said Philadelphia & Reading Coal & Iron Company.” It then stipulated that the defendant should retain eighteen of the bonds, for $1,000 each, as security for the payment of said rents to it, by the executors, the company agreeing to endeavor to collect the rents from the tenants under the advice of the counsel of the executors and trustees. Okie's co-trustees never joined in executing this agreement of July 24, 1872. The rents therein referred to were never paid by Lucas & Co., the tenants, and the trustees never paid the amount of them to the defendant. The defendant, claiming the light to do so, still retained the eighteen bonds, which were the subject of this bill, as security for the payment of said rents to it. In November, 1872, Messrs. Webster, Richardson and Okie ceased to be executors and trustees under the will of the decedent, and were succeeded in the administration of the estate and as trustees by the plaintiff. The master reported further findings of fact and of law, in part, as follows: * The learned counsel of the respective parties have, in argument, submitted different views with respect to the construction of the agreement of January 19, 1872, and this difference is first to be considered and passed upon; for, if that agreement gave to the defendant the right to retain and hold the eighteen bonds in question, then, of course, plaintiff’s case could not be maintained. Upon behalf of the defendant it was contended that the agreement of January 19, 1872, was wholly executory, and that upon delivery of the deed, and not before, the contract to convey and to purchase became an executed one; that the agreement did not operate as an assignment of the rental or royalties to the defendant, but that, upon delivery of the deed, a settlement was to be made in which the vendors were themselves to pay, or be charged with, the rental from January 1, 1872, and the vendee with the interest upon the bonds from the same date; in other words, that the vendee was not to pay the interest upon the bonds, and look to the mining tenants for the rents. In enforcement of this contention, it was insisted that Lucas & Co. remained the tenants of the vendors until delivery of the deed, and that the vendee could not compel payment from the tenants before such delivery, unless, perhaps, by invocation of equity, to require action by or in the names of the vendors, a course which the agreement, it was argued, did not indicate as in contemplation, and which the parties could not have intended. I think that this position of the defendant, though, of course, intelligently assumed and ably presented, is not sound. Although the agreement was to convey and to purchase, so that the deed was to be delivered and the consideration paid in the future, yet it was expressly made to bear date as of the first day of January, 1872, “so that all the rents and profits of the said land shall be paid and belong to the said party of the second part (defendant), and interest on the said consideration price from said time shall be allowed to the said party of the first part ” (plaintiffs). As it seems to me, this meant that when the deed, though to be made in the future, should be delivered, it would take effect as of January 1, 1872, and that accordingly, because of defendant’s ownership of the tract as as of that date, the rents would issue thereout to it and belong and be payable to it as landlord, just as “ from said time ” interest on the consideration, because of the same circumstance, would be allowable to the vendors. The rights of neither of the parties were made dependent upon anything to occur in the future, but were fixed as of a past date. As of that date, the rents belonged to the vendee, and I perceive no ground for holding, that the vendors guaranteed that they would be paid. Other provisions of the agreement also tend to support the view that the purchase and sale were to be treated as consummated upon January 1, 1872. The bonds in which the price was to be paid were to run from that date. The vendee assumed the Dundas mortgage from that date, and expressly agreed to take subject to then subsisting leases; the only lease being, so far as appears, this lease to Lucas & Co. I report as my opinion, that by the agreement of January 19, 1872, the claim of the defendant to withhold and retain the eighteen bonds in question, as security for the unpaid royalties, is not sustained. The writing of July 24, 1872 .if valid and binding upon the estate of William Richardson, would be conclusive of this case, and require its decision in favor of the defendant. It is, however, asserted, upon behalf of the plaintiff, that this document is not a valid and binding agreement, because it was executed by only one of the trustees. This point, considered apart from and without reference to any of the circumstances alleged by the defendant, and claimed upon its behalf to make this case an exception from the general rule, must, in my opinion, be sustained. Whether or not the fact that the agreement is expressly stated to be that of three persons, only one of whom executed it, would be conclusive against its validity as the contract of any of them, need not be decided. I base the opinion I have expressed upon the principle that “ when the administration of a trust is vested in co-trustees, they all form but one collective trustee. They must, therefore, execute the duties of the office in their joint eapacfiy, .... in all cases depending on the discretion and judgment of the trustees: ” Vandever’s App., 8 W. & S. 409. Having already reached the conclusion that the agreement of January was such that the supplementary writing of July cannot be considered as merely confirmatory of it, the instrument of later date must be taken to involve the exercise of discretion and judgment, and therefore its execution by all the trustees was requisite to render it binding upon the trust-estate, unless, as I have said, there are some circumstances to make the general rule inapplicable to it. The defendant insists that there are such circumstances, viz.: 1. That the two trustees, who did not sign, had previously orally agreed to the retention of the bonds, precisely as the writing provided that they should be retained. 2. That, even if Webster and Richardson bad not agreed beforehand, they subsequently assented to and ratified what Okie had done. 3. That the present trustee, the Philadelphia trust company, recognized and ratified the retention of the bonds. ■ These three propositions may be consolidated and re-stated as, in effect, an allegation that, although the writing of July 24,1872, was executed by only one of the then three trustees, the same thing had, by parol, been previously agreed to by the other two of them, and that the writing was subsequently ratified by those others, and also by the present substituted trustee. I am of opinion, with respect to this contention, that if acquiescence or consent to the contract by all the trustees, coupled with an exercise of their own judgment therein, has been shown, it is valid, if no sufficient ground other than its non-execution by two of the trustees exists for holding it to be invalid. See Yandever’s App., supra, and Bohlen’s Est., 75 Pa. 304. This brings me to a consideration of the facts upon this point. 1. As to the alleged prior acquiescence of Messrs. Webster and Richardson. [ — After discussing the testimony:] I think it incumbent upon’ me to conclude that the allegation of agreement upon their part has not been established; and, accordingly, I find as a fact that the two then trustees who did not execute the writing of July 24,1872, or either of them, had previously assented to or authorized its execution, or had agreed, by parol, that the bonds should be retained as security for the unpaid royalties. 2. Did Mr. Richardson and Mr. Webster subsequently ratify the writing of July 24, 1872? Upon full consideration of the evidence, especially the testimony of Mr. Okie, of Mr. Webster, and of Mr. Richardson, I believe that both Mr. Richardson and Mr. Webster knew of the writing which Mr. Okie had signed, and its purport, a few days after its date. Certainly, if they did not, in fact, know it, their position as joint trustees with Mr. Okie required, in view of facts which they certainly did know, that they should have made prompt inquiry, which, if made, must have resulted in their immediately acquiring the information. But knowledge is one thing, ratification another. There is no evidence whatever of the latter, and it cannot, in my opinion, be inferred from the former. The subject was one calling for the exercise of judgment and discretion; and it is, I think, impossible to find that Mr. Richardson or Mr. Webster, in the exercise of these, gave tlieir assent and approval to the writing in question. Proof of such ratification on their part should, to avail the defendant, be, I think, clear and satisfactory. It is not enough that they knew, or should have known, what Mr. Okie had done, and did not notify to the defendant their dissent therefrom. The right set up by the defendant depends for its maintenance upon the agreement, in some form, of all the trustees, and this has not been shown. In addition to this, no consideration appears for this supposed surrender of the property of the trust, by those whose duty it was to demand and hold it. The only thing in the nature of consideration which is suggested by the writing itself, is the recital that 117,308.69 of rents was “due by the said executors,” which was not true; the statement that such rent was so due being based upon a construction of the first agreement which was not correct, and to which Mr. Richardson and Mr. Webster have both testified they never assented. Neither did they agree to give away any of the bonds which belonged to the trust-estate; and, if they had, I think such agreement would not have been binding. In accordance with the foregoing, I find and report, as matter of fact and of law, that Mr. Webster and Mr. Richardson did not ratify or assent to the writing of July 24, 1872, and that if they had done so it would not, in view of my construction and understanding of the original agreement, have been binding upon the estate. 3. — After discussing the third point, to wit, the allegation that the present trustee, the plaintiff, had recognized and ratified the retention of the bonds by the defendant, and reporting that in his judgment there was nothing to warrant a finding that the present trustee had acquiesced in the claim of the defendant to hold the bonds by virtue of either of the prior agreements, the master continued: I report as my opinion, upon the facts as I have found them, that the writing of July 24, 1872, even in connection with the circumstances alleged and set up to support it, is not a valid and binding agreement, and does not entitle the defendant to retain and hold the bonds in question. It bas been further contended that “the defendant has a perfect legal title to tbe 118,000 of bonds, by writing executed by all the trustees.” This refers to the fact, which is beyond question, that in January, 1872, the then trustees executed a writing directing the delivery of the bonds under the contract of sale, to C. & H. Borie, and upon July 24, 1872, also executed an assignment to C. & H. Borie of four hundred and twenty bonds, inclusive of these eighteen bonds ; and that the said C. & H. Borie, by their duly authorized attorney, did, upon June 21, 1878, assign the said eighteen bonds to the defendant. But the purpose for which these bonds were transferred to C. & H. Borie so plainly appears, that it would be superfluous to refer to the evidence of it in detail. They were assigned as collateral security for notes of the trustees. It is equally beyond question that the defendant knew this; and there is not any evidence which would support a finding that the trustees assented or agreed that the transfer from C. & H. Borie, by their attorney, should operate to pass the title to the bonds to the coal and iron company as security for the unpaid rental of Lucas & Co. The notes had been paid. C. & H. Borie had, therefore, no right to longer retain the bonds; and upon the facts as I have found them, it follows that the defendant could not and did not acquire such right by virtue of C. & H. Borie’s assignment to it. I report that, in my opinion, the defendant’s claim of right to retain these eighteen bonds, by virtue of title derived through C. & H. Borie, and the circumstances connected therewith, has not been sustained. No jurisdictional question has been raised; and, as the bill avers and the answer admits that these bonds have a peculiar value, and are not readily obtainable in the market, I am of opinion that this suit is cognizable in equity. —The master thereupon recommended a decree that the defendant deliver to the plaintiff the eighteen bonds described in the bill, and interest thereon at seven per cent from July 1, 1872, and that the defendant pay the costs. Exceptions to the report of the master, filed with and overruled by him, having been argued before the court in banc, an order was entered, without opinion filed, dismissing the exceptions, confirming the report, and decreeing as recommended by the master. Thereupon, the defendant took this appeal, specifying inter alia that the court erred in dismissing its exceptions filed to the action of the master, 2. In finding that the agreement of January 19, 1872, did not give the defendant the right to retain and hold the eighteen bonds in question. 8. In not finding that the two trustees, who did not sign the writing of July 24, 1872, had previously assented to the agreement embodied therein. 4. In not finding that Webster and Richardson subsequently assented to and ratified the agreement of July 24, 1872. 5. In finding that the writing of July 24, 1872, was not a valid and binding agreement. 9. In not finding the plaintiff to be barred by laches from the equitable relief sought. 13. In finding the suit to be cognizable in equity. Counsel cited: (1) As to laches: Russell v. Baughman, 94 Pa. 400 ; McGrew v. Foster, 113 Pa. 642 : Patterson v. Martz, 8 W. 874; Penna. R. Co.’s App., 125 Pa. 189 ; Todd’s App., 24 Pa. 429; St. Andrew’s Church’s App., 67 Pa. 519; Ash-liurst’s App., 60 Pa. 290 ; Evans’s App., 81 Pa. 278 ; Bell v. Railroad. Co., 1 Gr. 105. (2) On the question whether the agreement of January 19, 1872, was an executory or an executed contract: Gray v. Packer, 4 W. & S. 18; Bruner’s App., 57 Pa. 46 ; Stewart v. Lang, 37 Pa. 201; Williams v. Bentley, 27 Pa. 294; Ogden v. Brown, 33 Pa. 247. It is true that under certain circumstances equity will refuse its relief, though the statute of limitations has not run. The only thing, however, which justifies, or has ever been thought to justify such refusal, is the existence of a state of affairs prejudicial to the defendant, or operating to mislead him, and brought about by such a failure of the plaintiff to proceed, as amounted to a declaration that he did not intend to do so. This is the doctrine of all the cases cited on this point by the appellant.
139 Pa. 546Lantz v. Vermont L. Ins. (1891)
[To be reported.] (a) A life insurance policy stipulated for the payment of quarterly premiums by the assured, providing that if they should not be paid on the dates named and in the lifetime of the assured, the policy should cease and determine, and that the acceptance of a premium after maturity should not be a waiver of payment of any future premiums at maturity. (f;) It was further provided that no persons, except the president and secretary, acting together, were authorized to make, alter, or discharge contracts, or waive forfeitures. A general agent of the company frequently received and practically had authority to receive premiums after maturity, provided the assured was in good health at the time thereof: 1. In the absence of evidence that the company authorized him thereto, the agent had no power to bind it by a promise to accept an already overdue premium on a future day, regardless of the health of the assured or of his death before that time; and the agent’s acceptance of prior premiums after maturity, the assured then being in good health, gave the latter no right to rely on such promise. 2. The consequence of the default of the assured in not paying said premium at maturity, was that the policy thereupon ceased to bind the company and protect the assured, without any act or declaration on the part of the former; and, while it might be restored to life by subsequent payment and acceptance, this in effect would be a new insurance under the former policy. 3. At all events, as a lapsed policy can be restored to life, so far as the assured is concerned, only by actual payment and acceptance of the premium, or by a contract based upon a sufficient consideration, the promise of the agent, being made when the assured was already in default, and without consideration, was not binding upon the company. 4. The assured died before the date at which the agent promised to accept the premium, and it was tendered by his legal representatives, after his death but within the date specified. The company, in such case, was not bound to accept the tender, and was not liable on the policy: Universal Ins. Co. v. Block, 109 Pa. 535; Lebanon Ins. Co. v. Hoover, 113 Pa. 591, distinguished.
139 Pa. 570Beecher v. Stein (1891)
APPEAL BY DEPENDANT FROM THE COURT OE COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 294 January Term 1890, Sup. Ct.; court below, No. 272 September Term 1886, C. P. No. 2. On October 80,1886, James Beecher and Terrence P. Smart brought case against Emanuel Stein. Issue. At the trial, on May 8, 1889, the court ruling that the cause of action was not joint but several, the record was amended by striking out the name of Terrence P. Smart, when it was shown that Beecher and Smart held letters patent for a machine in the nature of a “ jack,”* to be used in shoring up ditches ; that on February 3,1885, they executed an exclusive license to the defendant to make, use and vend the jack throughout the United States for the full term of the letters patent, under a royalty of fifteen per cent of the net selling price, one half to be paid quarterly to each licensor; the contract containing, also, the following provision: “ And provided also, that the royalty per annum, so to become due and payable as aforesaid, shall not be less than five hundred dollars in any one year during the term hereby granted; and that, in case the royalty on jacks sold under this license by said Stein, his heirs or assigns, should amount to less than that sum in any one year, or that no such jacks should be sold during the quarter year following the expiration of six months from the date of this license, or upon failure' to pay any quarterly instalment of said royalty when due, that then, in either of said events, the license and powers hereby granted shall become null and void and revert to said Beecher and Smart, and said Stein shall re-convey the same to them forthwith, on their demand so to do, in writing.”. The plaintiff adduced evidence to the effect that although there was a demand for the jacks and he had orders for them, yet he never could get the defendant to make any, and claimed to recover one half of §500, the minimum royalty provided, for the year ending February 3,1886. The defence was made that the defendant had never made any of the jacks, for the reason, as he alleged, that he had never received any orders for them; further, that, collateral to the execution of the license contract, the plaintiff had agreed to supply the defendant with patterns, dies, etc., necessary for the making of the jacks, and these, though often requested, he had never supplied. The court, PeNNYPACKEr, J., refused to charge, at the request of the defendant, that, under all the evidence, the verdict should be for the defendant,3 submitted the question of fact as to the collateral agreement, and instructed the jury that the provision of the license contract quoted was one which provided for the minimum amount of royalty, to be paid in any event.1 The jury returned a verdict for the plaintiff for $292.50. A rule for a new trial haidng been discharged and judgment entered, the defendant took this appeal, assigning the refusal of defendant’s point3 and the instruction to the jury,1 for error. Counsel cited: Cromwel’s Case, 2 Co. 71 a; Paschall v. Passmore, 15 Pa. 295, 307; Addison on Cont., 188; Faunce v. Burke, 16 Pa. 469; Westerman v. Means, 12 Pa. 97; Mathews v. Sharp, 99 Pa. 560 ; Streeper v. Williams, 48 Pa. 450; Gale v. Nourse, 15 Gray 860; White v. Lee, 3 Fed. R,. 222.
139 Pa. 573Pierie v. Philadelphia (1891)
APPEAL BY PLAINTIHH NR Oil THE COURT OH COMMON PLEAS NO. 4 OH PHILADELPHIA COUNTY. No. 11 July Term 1890, Sup. Cb.; court below, No. 845 December Term 1889, C. P. No. 4. On December 10, 1889, an amicable action was entered in the court below between George G. Pierie, plaintiff, and the city and county of Philadelphia, defendant, the following case being stated for the opinion of the court, in the nature of a special verdict: •“ George G. Pierie, the plaintiff, is recorder of deeds for the county of Philadelphia, duly elected and qualified for three years from the first Monday of January, 1888; he is paid by salary, said county containing over 150,000 inhabitants. “ Under the act of May 28,1715, § 1, 1 Sm. L. 94, it is the duty of the recorder of deeds for said county to ‘ record in a fair and legible hand all deeds and conveyances which shall be brought to him for that purpose.’ Under said act, it was not the custom for the several recorders of deeds for said county to attach their signatures upon the records of said deeds and conveyances at the end thereof, or add any certificate whatever thereto, and none of the predecessors of said plaintiff ever did so. “ On June 24, 1885, the legislature passed the following act: “‘AN ACT “ ‘ To perfect the records of deeds, mortgages and other instruments in certain cases: “ ‘ § 1. Be it enacted, etc., That in all cases where the term of the recorder of deeds and mortgages in the several counties of this commonwealth has terminated by death, resignation, or expiration of the term for which he was elected, and by reason of his having failed or neglected to authenticate the record of any deed, mortgage or other instrument of writing entered on the record, by adding thereto the proper certificate or his signature, his successor in office shall certify or sign the same.’ [§§ 2, 3, provide the forms of certificate and authentication.] “ ‘ § 4. The records of such deed, mortgage or other instrument of waiting, thus authenticated, shall be taken and deemed to be as good and valid to all intents and purposes, as if the same had been certified to and signed by the proper recorder, during his term of office. “ ‘ § 5. The person performing such service shall be entitled to be paid by the proper county the sum of twenty cents for each certificate to record, and ten cents where the signature alone is wanting.’ “In conformity with his interpretation of said last-mentioned act, the plaintiff has certified 211 of certain deeds, which were entered of record by his predecessors, but not certified by them, and now claims that, as the person performing said service, he is entitled, under said last mentioned act, to be paid by the defendant the sum of twenty cents for each of said certificates to record. “ The defendant has refused to pay the same, alleging: “1. That the said act of 1885 is unconstitutional, in that it does not recite the said act of 1715, which it was intended to alter and amend. “ 2. That § 5 of said act of 1885, is in violation of § 5, article XIY. of the constitution of Pennsylvania. “ 8. That said act is not retroactive. “ 4. That, if said act of 1885 is retroactive,'it applies only to deeds and other instruments not certified by the immediate predecessor of the present incumbent. “ If the court be of the opinion that the said sum is due and payable to the plaintiff, then judgment to be entered for the plaintiff for the sum of $42.20; but if the court be not of that opinion, then judgment to be entered for defendant, costs to follow judgment, each party reserving the right to an appeal.” After argument, the court, Thayek, P. J., entered judgment on the case stated for the defendant, filing an opinion in part as follows: It has never been customary for the recorder in Philadelphia county to add any certificate to the record of the deed, or to attest it by his signature. The law did not require it, and consequently it was never done. Pie certified the recording of the deed upon the deed itself, when it was left to be recorded, as the act of 1715 required him to do, and he certified all exemplifications or copies from the records, as he was also required to do by the act. There would seem to be no more necessity for certifying every recorded deed at the end of the record, than there is of certifying in like manner any other public record which is kept in the courts or the public offices of the commonwealth. The office of recorder of deeds has existed from the very foundation of the commonwealth. It was provided for in the “ Laws agreed upon in England,” under the name of the “Public Enrolment Office,” and with the residue of those laws was enacted by the first general assembly which sat at Chester in 1682. From that time until the passage of the act of June 24, 1885, no one, at least in this part of the state, ever supposed that it was necessary, or that it was a part of the recorder’s duty, to write a certificate in the record books at the end of each record of the deeds there recorded. It has long been determined that the record books themselves are evidence of the deeds copied in them: Lewis v. Bradford, 10 W. 67, and that those records are constructive notice to all mankind: Evans v. Jones, 1 Y. 173. In hundreds of cases, those records have been given in evidence, on tbe trial of causes in the courts, and no lawyer was ever found so astute as to object to the records for lack of such certificate. But, by the act of June 24, 1885, entitled “ An Act to perfect the record of deeds, mortgages, or other instruments in certain cases,” it was enacted:. The act assumes, what is altogether untrue, that the omission to do that which is here provided for, was due to a failure or neglect of duty on the part of former recorders, whereas it never was their duty to do it. No such duty was ever imposed upon them by any law, written or unwritten, nor by any custom. The records of the, office in Philadelphia for two hundred years will be searched in vain for any such certificates. How the recorder who is now to add these certificates to th'e old records is to know that the records made by his predecessors are true records, especially where those predecessors have been dead for several generations, except by finding the records spread out there in the official books, the act does not inform us. The fifth section of this act requires the county to pay the recorder for the service to be' rendered, in writing up certificates to these many thousand of old records, a fee of twenty cents for each certificate. I say, requires the county to pay the recorder. The language of the act is, “ the person performing such service but that person, as will be seen by reference to the first section, is necessarily the recorder of deeds, and cannot be any one else. It is for the recovery of these fees which the city has refused to pay, that the present action has been brought. It is insisted on behalf of the city that the act of June 24, 1885, so far as it provides a compensation for the recorder of deeds, by the payment to him of the fees mentioned in the fifth section, is unconstitutional and void, the same being in conflict with § 5, article XIV. of the constitution. By §12, act of March 31, 1876, entitled “An Act to carry into effect § 5, article XIV. of the constitution, relative to the salaries of county officers, and the payment of fees received by them into the state or county treasury, in counties containing over 150,000 inhabitants ” the salary of the recorder of deeds “ in counties, or in cities co-extensive with counties, containing over 300,000 inhabitants” (which is the modern statutory name of the citj' of Philadelphia), is fixed at twelve thousand dollars. Nothing can be plainer than the intention of the framers of the constitution of 1874 to substitute, in all counties containing over 150,000 inhabitants, for the old method of compensating county officers by fees, a new system, by which they are to be paid fixed salaries, not exceeding, however, the aggregate amount of the fees earned by them under the existing fee bills. That the payment by salaries was intended to exclude such officers from all right to compensation by fees, is perfectly clear; for the constitution not only says that “ they shall be paid by salary,” but expressly requires them to pay all fees received into the state or county treasury. The .prohibition of the receipt of fees for their own use, and the regulation of their compensation by fixed salaries exclusively, could hardly have been expressed in plainer language than that which is written in the constitution. It is impossible for any ingenuity to prevail against it. There is nothing left for construction or interpretation. It interprets itself as plainly as any words in the English language can do so, and there is no hook upon which to hang a query or a doubt. If the strongest prohibitory words had been used against a return by the legislature in the counties designated, either partially or entirely, to the old system of compensation of county officers by fees, it could not have made the matter plainer than it is written in the constitution. Inasmuch as the act of June 24,1885, was passed before the election of the plaintiff to his present term of office, it would have been competent for the legislature, by an act passed at that time, to have increased, prospectively, the amount of the compensation fixed'by the act of March 31,1876, if they had thought proper to do so. But the constitution permitted them to do that only by increasing the fixed salary. Its provisions amount to an absolute prohibition of their doing so, by creating additional fees of office without at the same time increasing the salary fixed by law. The fifth section of the act of June 24, 1885, cannot be enforced in the county of Philadelphia without a plain infraction of 'the constitution. The present action, therefore, cannot be maintained. Judgment for the defendant on the ease stated. —Thereupon, the plaintiff took this appeal, specifying that the court erred: 1. In entering judgment for the defendant on the case stated. 2. In not entering judgment for the plaintiff for $42.20. 1. There is no express direction in the act of May ,28, 1715, 1 Sm. L. 94, for the making and signing of a certificate on the book in which a deed has been recorded, as an authentication of the record. But, in Lewis v. Bradford, 10 W. 67, Mr. Justice Huston, laying down the doctrine that the record books are evidence, because they are copies of the original deeds, gives, as the authority for that decision, § 5 of the act of 1715, providing that “ the copies or exemplifications of all deeds so enrolled, being examined by the recorder, and certified under the seal of the proper office (which the recorder or keeper thereof is hereby required to affix thereto) ” shall be evidence, etc. The custom of appending certificates at the end of the record has in fact prevailed in some of the counties of the state for many years, and there is a wide-spread belief that the record is not complete without the authentication. The certificate carries the assurance that the deed, just as it is, has been recorded. But the act of June 24, 1885, P. L. 160, applies in all cases where the recorder has “ failed or neglected to authenticate the record,” whether such failure was or was not a neglect of an official duty. 2. The language of the act is capable of no other construction than that it is retroactive, and to accomplish its purpose of making the records in all the recorders’ offices perfect, it must be retroactive, and apply to deeds recorded by any officer whose term has expired, not simply to those recorded by the immediate predecessor of the incumbent. It does not violate § 6, article III. of the constitution, by attempting to amend or extend the act of 1715 without re-enactment at length, but is entirely independent legislation: Donohugh v. Roberts, 11 W. N. 186. But, the serious contention of the defendant is, that the act of 1885 is in conflict with § 5, article XIV. of the constitution, providing that salaried county officers shall pay all fees into the county or state treasury, as directed by law, and that in counties of a population greater than 150,000, all county officers shall be paid by salaries. The act of March 31, 1876, P. L. 13, was passed to carry that section into effect. It requires the recorder to pay fees into the 'County treasury; but it was intended to cover fees collected from parties other than the county, and did not intend to impose the absurd duty of collecting fees from the county, only to pay them back again. 3. The regulation of the compensation of county officers is a duty devolving upon the legislature from time to time : Crawford Co. v. Nash, 99 Pa. 253. The constitution does not restrict such regulation to an increase of the fixed salary: Commonwealth v. Butler, 99 Pa. 535. The service imposed by the act of 1885 is a special one outside the ordinary duties of the recorder, and it was doubtless to emphasize this that the legislature designated the recorder as “ the person performing such service.” Besides, in no other way could a reasonable compensation be fixed in a general statute applicable to all the counties of the state. The act of March 18, 1875, P. L. 32, requiring recorders to prepare and keep certain indexes, the cost thereof to be paid by the counties, has been followed all over the state, and its constitutionality has never been questioned. If the admission of the court below that the legislature might have provided this additional compensation in the shape of salary, is well founded, the objection is purely technical, and ought not to prevail, except upon the well-defined rules as to the constitutionality of statutes.
139 Pa. 584Ghormley v. Smith (1891)
APPEAL BY PHILA. TRUST CO. PROM THE COURT OP COMMON PLEAS NO. 4 OP PHILADELPHIA COUNTY. No. 346 January; Term 1890, Sup. Ct.; court below, No. 257 December Term 1889, C. P. No. 4. On December 11, 1889, there was filed in the court below the record of a judgment for $846.17, recovered in the Court of Common Pleas No. 1 of Allegheny county by William Ghormley against Edward A. Smith and Henrietta C. Smith, his wife, and on the same day a writ of execution-attachment was issued thereon, and afterwards served upon the Philadelphia Trust, Safe Deposit & Insurance Company, as garnishee of Henrietta C. Smith. The garnishee, in response to a rule to answer certain interrogatories, filed an answer setting forth that the respondent was trustee for Mrs. Smith, under a deed executed by her before her marriage, her name being then Henrietta T. Cather-wood. A copy of the deed was annexed to the answer. It bore date July 2B, 1879. By said deed, Henrietta T. Catherwood conveyed to the Philadelphia Trust, Safe Deposit & Insurance Company, all her property, real and personal, upon trusts in substance as follows: To collect the income and pay over the same when and as received and not by anticipation, after deducting all taxes, necessary repairs, and all reasonable expenses of the execution of the trust, into the hands of the said Henrietta T. Catherwood, or to such person or persons as she should, by any writing under her hand, appoint and direct, for and during all the term of her natural life, whether she should remain sole or should marry, to and for her sole separate use and benefit, “ so that all and singular the trust-estate, rents and income thereof, and every part thereof, shall be absolutely free from and not subject or liable to the debts, control, or engagements of any husband she may have or marry, or to her own debts, control, or engagements,” her receipt or the receipt of her appointee to be a good and valid discharge, etc.; the grantor reserving a power to limit and appoint the estate by will among her children upon her death, and in default of such appointment the property to be conveyed to the use of her children, and the issue of deceased children, absolutely, subject, however, to any provision which the grantor might make for the payment of income to a surviving husband; or, if the grantor should leave no issue, then reserving a general power of appointment, and in default of its exercise the property to be held in trust for her surviving husband during his life, and at his death, or at the grantor’s death, should she leave no husband, then in trust for the person or persons who would be entitled to the same under the intestate laws, had the grantor died seised and possessed thereof. The deed gave to the trustee large discretionary powers as to selling and conveying the trust property, changing investments, and as to the general management of the trust-estate, and reserved to the grantor, in case of her marriage, power to withdraw from the trust a sum not exceeding $5,000, for the purpose of furnishing a house for her residence; and it contained the following further provision: “ This deed, indenture and conveyance, to be absolutely irrevocable in any event whatever, the question of inserting a power of revocation having been carefully submitted to and considered by said party of the first part, and deliberately determined to be excluded.” The answer averred, further, that the deed to the respondent, as trustee, was made by Henrietta T. Catherwood immediately after her becoming of age, with the intention and design of thereby creating an irrevocable trust for the protection of the property of the said Henrietta T. Catherwood from the control of any future husband she might marry, and from her own control and from liability to the debts and engagements either of herself or of any future husband; that the reserved power to withdraw from the trust, in the event of her marriage, a sum not exceeding $5,000, for the purpose of furnishing a house for residence, was exercised by the grantor and said sum was paid to her by the trustee, $2,000 thereof being paid on September 10,1879, and $8,000 on January 2,1880; that the trustee, at the time of answering, held in trust, under said deed, personal property of the par value of $88,285.11, and a one third interest in certain ground rents paying an annual income of $1,168.08, and had in its hands, to the credit of Mrs. Smith, net income to the amount of $561.52; “ that this deed of trust was a good and valid provision by Mrs. Smith for the benefit of herself and family, and being made, as it was, by a single woman, not in debt at the time, and not with a view to embarking in business or contracting debts, but with a view to protecting her estate in the event of future coverture, it sins against no policy of the law, but, on the contrary, its provisions for the protection of herself and family should be maintained like trusts commonly classed as spendthrift son’s trusts.” The answer also admitted the holding of certain funds as an active trustee under the will of Ann Catherwood, deceased, the same having been bequeathed to be held in trust for her benefit during life, free from the control of the beneficiary,* etc. A rule for judgment against the garnishee, on the answer filed, baying been taken, the court in banc, after argument thereof, entered the following order : February 15, 1890, judgment for the plaintiff, and it is considered and adjudged that the garnishees have in their hands the sum of $352.55* belonging to the defendant and subject to this attachment.1 Thereupon, the garnishee took this appeal, specifying that the court erred: 1. In making the order for judgment.1 8. In not entering judgment for the garnishee upon its answer. 4. In not discharging the rule for judgment. 1. The garnishee having admitted the possession of income, held under the trust created by Mrs. Smith, to an amount greater than the plaintiff’s judgment, no recourse was attempted to be had against either the corpus of that trust-estate, or the moneys coming from the trust under the will of Mrs. Cather-wood, and the sole question now presented is the liability to attachment of the income of the property conveyed to the garnishee by Mrs. Smith before her4 marriage. The decision of the court below is not based upon any construction of the language of the trust deed, but, on the contrary, overrides and subverts its intention, and can be sustained only upon the ground that the trust is invalid, as in contravention of public policy or in violation of the statute 18 Eliz., c. 5. As has often been held, the statute of Elizabeth was really declaratory of the law, and therefore there is but one question presented, to wit: whether it is contrary to the policy of the law that a young girl, on attaining majority but without immediate contemplation of marriage, should be able to settle her patrimony so that the income shall not be subject to her husband’s control, or her own anticipation, or to his or her debts. 2. It will be most unfortunate, in many respects, if such settlements be declared invalid. Experience has shown their necessity, to preserve for the wife and her children the income of her estate in all vicissitudes of fortune, and that it is vrise for young ladies to make such provisions, before contracting marriage engagements, when the consent of the future husband is not required. Although the law may be otherwise in England, it is well settled in Pennsylvania that such settlements may be made for the beneficiary, male or female, by a donor or devisor, and no other class of trusts is so favored by our courts : Fisher v. Taylor, 2 R. 35; Eberly’s App., 110 Pa. 95; Phila. Trust Co. v. G-uillou, 100 Pa. 258; Ashhurst’s App., 77 Pa. 464; Thackara v. Mintzer, 100 Pa. 154; Barger’s App., 100 Pa. 240; Patterson v. Caldwell, 124 Pa. 460 ; Peoples S. Bank v. Denig, 181 Pa. 241. It cannot be doubted that the young girl’s father might have so settled her estate, and it probably would not seriously be disputed that, after betrothal, she and her intended husband might safely have so limited it by a marriage settlement. Why should she, if her father unfortunately died intestate, be precluded from making a settlement herself, in advance of any affair of the heart ? 8. A theory has been advanced, and is sought to be supported by the English cases and Mackason’s App., 42 Pa. 880, to the effect that “ a man cannot so settle his estate, that he shall have the benefit of the income thereof during his life and the disposal thereof after his death, and yet so that it shall not be liable to his creditors.” We contend that this doctrine, as thus broadly stated is not law in Pennsylvania. The English rule is even broader, and goes to the extent that a trust cannot be created by which the beneficiary shall enjoy the income during life, with a power of disposition after death, which shall keep the property beyond the reach of creditors : Brandon v. Robinson, 18 Ves. 429; Adams’ Eq., *42; Bispham’s Eq., § 62; Perry on Trusts, 555; and this certainly is not law with us, our books being full of spendthrift trusts carefully upheld and protected. The distinction between trusts created by ancestors, and those created by the man himself, for himself and his family, is without authority, either here or in England. Its only basis is certain obiter dicta in Mackason’s App., supra. The rights of creditors, referred to by Mr. Justice Shabsavood, in Ashhurst’s App., 77 Pa. 464, which cannot be affected by a deed of trust, must be taken to mean rights of creditors existing at the time of its execution. 4. But a careful examination of the facts in Mackason’s App., supra, will show that the decision, whether law or not, has no application to the case at bar. It was placed, to some extent, on the ground that an unlimited power to appoint in fee renders the estate assets for the payment of the appointor’s debts, following the English rule on that subject. But that rule .has since been expressly repudiated in Swaby’s App., 14 W. N. 553. Our case is distinguishable from Maekason’s Appeal on several grounds: (a) The deed, in that case, appears to have contained no provision making it irrevocable, and therefore the settlor had power to revoke the trust: Russell’s App., 75 Pa. 269; (6) the remainder was limited substantially to the heirs of the settlor, who thus practically had the entire beneficial interest and full control of the legal title during his life; (e) the attack was made by creditors in that case after the death of the beneficiary, when the purpose of the trust had been fully accomplished; (d) the settlement was made by a man, and not, as in the present case, by a woman, whose natural future was the marriage state, and not the struggle for life in business pursuits, and any considerations of public policy that might exist in the case of a man have no application here. Settlements of this kind were highly commended by Mr. Justice Sharswood, in Ashhurst’s App., 77 Pa. 464. Mackason’s App., 42 Pa. 330, directly answered the sole question presented in the case at bar. The appellant’s counsel have not cited, nor can they find, a single ease deciding that the grantor can settle his own property upon himself, so that it will not be liable for his debts. The contrary was expressly decided by this court in Mackason’s App., supra,, and by the lower courts in Lewis v. Miller, 21 W. N. 94; Andress v. Lewis, 17 W. N. 270. It is true that a settlor may make a gift of his property, where a present' interest passes, which is irrevocable as against himself, and valid as to creditors not existing at the time and not intended to be defrauded: Harlan v. Maglaughlin, 90 Pa. 293; Kimble v. Smith, 95 Pa. 69; Haak’s App., 100 Pa. 59; Buckley y. Duff, 114 Pa. 596; and, for the purposes of this case, it may be conceded that Mrs. Smith’s gift of the remainder to her children was such. But the income which she never gave away, but retained for herself, does not fall within that rule. It is therefore unnecessary to discuss the question, whether the provision making the deed irrevocable would be sufficient to distinguish the case from Maekason’s Appeal. To say that she may keep her property, or any part of it, and still not have it liable for her debts, is in the teeth of both reason and authority. Her sex should make no difference in this respect.
139 Pa. 594Amer. Telegraph Co. v. Lennig (1891)
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY. No. 411 January Term 1890, Sup. Ct.; court below, No. 214 March Term 1889, C. P. No. 2. On March 22, 1889, The American District Telegraph Com-panjr brought assumpsit against Ambrose T. Secor and George G. Lennig, upon a bond executed by the defendants in favor of the plaintiff, in the sum of $500, dated May 3,1882, and conditioned as follows: “ The condition of this obligation is such, that if the above-named Ambrose T. Secor shall and will faithfully perform the duties of the office or employment of book-keeper, to which he has been appointed in the service of the said company, so long as he continues in said office or employment, and shall faithfully account for and pay over to the said company any and all moneys which may come into his hands, as the agent, employee or officer thereof, then this obligation to be void; otherwise to remain in full force and virtue.” The plaintiff’s statement of claim averred that the defendant Secor entered upon the duties of his office as book-keeper, at the plaintiff’s office in Philadelphia, and continued so to act until about May 8, 1886, when he fled from the city; that, while performing said duties, he made divers false entries in the plaintiff’s boobs, by means whereof the plaintiff was defrauded of large sums of money, said falsifications being as follows : “ On May 31, 1884, in the plaintiff’s ledger, page 188, in the account entitled “ Lesyeas’ District Collection Account,” the defendant Secor falsely stated that the sum total of credits due by the said Lesyeas amounted or footed up, by the addition of the figures contained upon the creditor side of the said account, to the sum of $16,760.77; whereas, in truth and fact, as appears by an addition of the said figures, the sum total of such credits is but $16,202.49. And on the same page of the said book, the defendant Secor falsely stated the debt or balance due by Lesyeas to be $3,772.1.5, whereas, in truth and fact, the said debt or balance is $558.28 more than this amount, being in reality $4,830.43. “ On page 189 of the said ledger, under the title of “ Les-yeas’ District Collection Account,” the defendant Secor between May 31 and June 2, 1884, entered that the amount due by Lesyeas was $3,772.15, whereas, in truth and fact, it was, as above set forth, $558.28 more than this, amounting to $4,330.48. And said error is continuously carried through the subsequent accounts of the said Lesyeas.”. After alleging that divers other false entries were made by Secor subsequent to May 31, 1884, the statement of claim made the following additional averments: “ 3. On or about June 9,1884, the said defendant, Secor, was requested to assume the duties of cashier of the company, in addition to his duties as book-keeper of the company, which latter position he still, however, continued to occupy; and, in and by virtue of his position as cashier of the company, he, the said defendant Secor, received and retained possession of divers sums of money, amounting to $1,000, belonging to the plaintiff, and which he fraudulently embezzled and never accounted for or paid over unto the said plaintiff.” “ 5. By reason whereof there has been a breach of the bond so as aforesaid given by the said defendants, and the plaintiff claims to recover against the said defendants the. sum of $500, with interest from July 1, 1884.” The defendant Secor made default, and judgment was entered against him for want of an affidavit of defence. The defendant Lennig pleaded non-assumpsit, and payment with leave. At the trial on February 20, 1890, the following facts were shown: Between the date of the bond in suit and May 16, 1884, the defendant Secor acted as the plaintiff’s book-keeper, and Joseph Wood, Jr., was the plaintiff’s secretary and assistant treasurer. Secor, as book-keeper, kept the accounts between the plaintiff and one Lesyeas, who was a collector for the company. From time to time Lesyeas made written returns of his collections, turning in at the same time the amount of money in his hands. The usual way of doing was for Lesyeas to hand his return and the accompanying cash to Wood, who would give him a receipt for the money. The data for making up the accouuts kept by Secor, would then be furnished to him by Wood. A large part of the time, however, as a matter of convenience, Lesyeas handed the returns and' money to Secor, who would afterwards turn them over to Wood, obtain from him the receipt for Lesyeas, and hand it to the latter. Early in May, 1884, Wood tendered his resignation as secretary and assistant treasurer, to take effect May 16th. On the latter date, the president of the company appointed Se.cor as cashier, and directed Wood to turn over all moneys, books, papers, etc., to him.* Secor acted as cashier, under this appointment, until June 9, 1884, when the board of directors by formal resolution ratified the appointment, and thereafter he continued so to act until May, 1886, when he absconded. But after May 16, 1884, he continued to keep the books, as he had done before that date. Before Secor’s appointment as cashier, there was no ofScer bearing that title, and the money was handled by the assistant treasurer. Testimony for the plaintiff tended to show that Secor made the various false entries in the books kept by him, set out in the statement of claim, and that therebjr he concealed thefts of moneys belonging to the plaintiff and passing through his hands, amounting to more than $5,000. The first false entry mentioned in the statement of claim, charged to have been made on May 81, 1884, was a footing in ink of a column of figures exhibiting collections reported by Lesyeas in April and May, 1884, the amount of tbe footing being fraudulently entered as $558.28 less than it ought to have been. Witnesses for the plaintiff testified that a footing in lead pencil appeared upon the book, between debits dated April 30th, and May 1st, respectively, which also was less than it should have been, by the same amount, and was in the handwriting of Secor; that this footing in pencil indicated that Seeor had taken off a trial balance on April 30th, and that the $558.28, to conceal the theft of which these fraudulent footings were made, had been embezzled prior to that date. On cross-examination, the witnesses admitted that it was impossible to tell from the books whether the pencil footing was made before or after May 16th, though in their opinion all the probabilities favored the conclusion that it was made on or about April 30th. At the close of the testimony, the court, Peknypackek, J., charged the jury as follows: Gentlemen of the jury : Upon the evidence in this case, your verdict ought to be for the plaintiff for the amount of the bond with interest. —The jury rendered a verdict for the plaintiff for $672. A rule for a new trial having been discharged and judgment entered, the defendant Lennig took this appeal, specifying that the court erred: 1. In directing the verdict for the plaintiff. 2. In not directing a verdict for the defendant. 1. The contract of suretyship is always to be construed liberally in favor of the surety. Any doubt is to be resolved in his favor, and he is to be held only to the extent to which he has clearly bound himself: Commonwealth v. West, 1 E. 29; Bank of Washington v. Barrington, 2 P. & W. 45; Miller v. Stewart, 9 Wheat. 680. When one becomes surety in an official bond, reciting that the principal has been appointed to a particular office, mere general words in the condition of the bond will not, in the absence of a clear intent to th'e contrary, extend the liability of the surety to the acts of the principal after a change in that office : National Banking Ass’n v. Conk* ling, 90 N. Y. 116. 2. While a surety for the faithful performance by his principal of the duties of an office, will not be relieved from responsibility simply because the act of the principal occasioning the loss was not strictly in the line of the duties of his office, or was done in the course of his temporary performance of other duties at the request of the employer: German Bank v. Auth, 87 Pa. 419; Detroit Bank v. Ziegler, 49 Mich. 157 (48 Am. Rep. 456) ; Rochester Bank v. Elwood, 21 N. Y. 88; Mayor, etc., v. Kelly, 98 N. Y. 467 (50 Am. Rep. 699) ; or by the mere imposition on the principal of additional duties, or by his appointment to an additional office, provided the new duties or the new office have no connection with the old, and do not interfere with or substantially affect the original employment: Skillet v. Fletcher, L. R. 2 C. P. 469; Gaussen v. United States, 97 U. S. 584; Home Bank v. Traube, 75 Mo. 199 (42 Am. Rep. 402); yet: 3. A surety will always be discharged by any permanent change in the contract with the principal, such as his transfer to a new and different office, or a substantial change in the character or duties of the old office, or the imposition of additional duties, or the conferring of an additional office, so connected with the original duties, or the original office, as practically to effect a substantial change in the employment: Northwestern Ry. Co. v. Whinray, 10 Exch. 77; Pybus v. Gibb, 6 El. & Bl. 902; Reynolds v. Hall, 1 Scam. 35; Manufacturers’ N. Bank v. Dickerson, 41 N. J. L. 448 (32 Am. Rep. 237) ; First N. Bank v. Gerke, 68 Md. 449; National Banking Ass’n v. Conkling, 90 N. Y. 116 ; Northwestern N. Bank v. Keen, 8 W. N. 283 ; notwithstanding the particular default occurred in duties which were part of the original contract of employment: Pybus v. Gibb, 6 El. & Bl. 902. 4. It but remains to apply these principles to the facts of this case. Before Secor’s first default occurred, a permanent change was made by his appointment as cashier, effecting substantial alterations in the terms of his employment. The office of book-keeper merged in that of cashier; or, even if each office still continued to exist, their duties were so intimately connected, the same person collecting the money and making a record of it on the books, that the performance by one person of the duties of both offices materially affected his employment' in either. Seeor’s contract of employment was thus so changed that he had greatly enlarged duties, greatly increased responsibilities, and very much larger opportunities and temptations to embezzle. 1. The doctrines elaborated by the appellant have no application to the facts of this case, as it clearly appears that the false footing entered in ink by Secor on May 31, 1884, had in reality been made by him on April 30th, to cover up speculations made prior thereto. The statement of claim, in giving the date of the falsification as May 31, 1884, refers to the time when the error was permanently recorded in ink, while the evidence shows the date, at which the fraud was conceived and consummated. If the court should consider that the statement of claim ought to have set out this evidence, this would be a technical matter simply, amendable in this court. 2. The action of the president, on May 16, 1884, in requesting Secor to assume Wood’s duties, did not discharge Secor from his engagement as book-keeper, nor was it his appointment to a higher office. Under the express provisions of the by-laws, the president had no power to appoint or dismiss, such power being vested exclusively in the executive committee of the board of directors; and Secor was not appointed cashier until June 9th. Nor was there ever such an office as that of cashier, prior to June 9th. Moreover, Secor, while acting as bookkeeper, had always received money paid into the company. And his temporary assignment to perform Wood’s duties was within the contemplation of the bond: Rochester Bank v. Elwood, 21 N. Y. 88; Detroit Bank v. Ziegler, 49 Mich. 157 (43 Am. Rep. 456). 3. However, the bond is good for falsifications made by Secor while keeping the plaintiff’s books, even though they were made after additional duties were imposed on him, the assumption of additional duties not rendering it invalid, as an undertaking for the faithful performance of the duties first assumed: Gaussen v. United States, 97 U. S. 584; Minor v. Mechanics’ Bank, 1 Pet. 46; Detroit Bank v. Ziegler, 49 Mich. 157 (43 Am. Rep. 456); Mayor, etc., v. Kelly, 98 N. Y. 468 (50 Am. Rep. 699). The test is, were the false entries made while keeping the books of the company, i. e., as book-keeper: German Bank v. Auth, 87 Pa. 419; Rochester Bank v. Elwood, 21 N. Y. 88; Mayor, etc., v. Kelly, supra. Again, Secor violated the second condition of the bond by failing to pay oyer money coming into his hands “ as the agent, employee or officer ” of the plaintiff.
139 Pa. 605Commonwealth v. Biddle (1891)
APPEAL BY DEFENDANT FROM THE COURT OF QUARTER SESSIONS OF PHILADELPHIA COUNTY. No. 187 January Term 1890, Sup. Ct.; court below, No. 898 June Term 1888, Q. S. On June 20, 1888, the grand jury returned as a true bill an indictment charging that James C. Biddle, on July 13, 1887, at Philadelphia county, unlawfully did cause and procure the Cotton and Woolen Manufacturers’ Mutual Insurance Company of New England, not lawfully authorized to do business in Pennsylvania, in consideration of the payment of a certain premium of 169.30, in cash, by Biddle & Weiss, of which firm said James C. Biddle was a co-partner, to enter into a contract by which the said company did insure the said Biddle & Weiss against loss or damage by fire to the amount of $5,580, for twelve months beginning, etc., on their cotton and woolen mill, in Philadelphia, and did then and there unlawfully forward and pay the said premium to the said insurance company, in the city of Boston, Mass. The defendant pleaded not guilty. Issue. At the trial, on August 8,1888, the jury returned a special verdict, in substance as follows : In August, 1886, the defendant, a citizen of Pennsylvania, residing in Pennsylvania, insured his mills, situated in Philadelphia county, in the defendant company. The policy, made a part of the verdict, expired on August 1,1887, and in anticipation of such expiration, the defendant, on July 18, 1887, took a new and renewal policy in the same company on the same property, for a term beginning August 1, 1887. This last mentioned policy was also made a part of the verdict. The renewal policy was effected as follows: In pursuance of the by-laws, the company’s secretary gave notice to the defendant, by letter mailed from the office of the company in Boston, of the approaching expiration of the first or original policy, wherein it was stated that his said first or original policy would be renewed, unless defendant should signify his desire to the contrary. To this notice the defendant sent no reply; and accordingly and in pursuance of such notice, he received from the said*company, by letter mailed in Boston, Mass., the second or renewal policy. The defendant their drew his check for an amount including the premium under the renewal policy, for the purpose of paying said premium, to the order of a person in Providence, R. I., and caused that check to be forwarded by mail from Philadelphia to that person, who duly received it, and thereupon paid the premium, upon behalf of the defendant, to the said insurance company. In order to obtain the original policy, it was requisite that certain precautions against fire and contrivances to decrease the hazard should be taken, provided, and maintained by the defendant, and this was done by him at an expense of about $6,000. The said insurance company is an incorporation created by the laws of Massachusetts, and was not authorized to transact business under any statute of Pennsylvania providing for such authorization within Pennsylvania; and the said James C. Biddle had not obtained any license to procure said insurance, or made any application for a license under the act of April 26,1887 [P. L. 61] . On August 11, 1888, the defendant moved for a new trial and in arrest of judgment, assigning the following' reasons: 1. Because the contract was made out of the state of Pennsylvania, and the payments of premium were made obligatory by that contract, and were paid in pursuance thereof. 2-6. Because the act under which the indictment was framed, to wit, the act of April 26, 1887, P. L. 61, was obnoxious to § 10, article I., article XIV., and § 2, article IV., constitution of the United States; and to § 1, article IX., and § 3, article III., constitution of Pennsylvania. 7. Because the legislature had no power to prevent persons who are sui juris from making their own contracts. On December 9, 1889, after argument of the foregoing motion before the court in banc, the motion for a new trial was refused, the motion in arrest of judgment overruled, without opinion filed, and judgment was passed that the defendant pay a fine of $100, and the costs of prosecution, etc. Thereupon, the defendant took this appeal, specifying that the court erred : 1, 2. In entering the judgment against the defendant on the special verdict. 3, 4. In not entering judgment for the defendant upon the special verdict, and in overruling the motion of the defendant in arrest of judgment. Counsel cited: (1) Section 14, act of April 4, 1873, P. L. 20; act of May 1, 1876, P. L. 53; List v. Commonwealth, 118 Pa. 322; act of April 26, 1887, P. L. 61. (2) Godcharles v. Wigeman, 113 Pa. 431; Swan v. Insurance Co., 96 Pa. 37. (3) Garbracht v. Commonwealth, 96 Pa. 449; Commonwealth v. Fleming, 130 Pa. 138; Daniels v. Insurance Co., 12 Cush. 422; Heebner v. Insurance Co., 10 Gray 143; Todd v. Insurance Co., 3 W. N. 330; Newcomb v. De Poos, 29 L. J., Q. B. 4; Taylor v. Jones, 1 C. P. Div. 87 ; Kline v. Baker, 99 Mass. 253; Insurance Co. v. Tuttle, 40 N. J. L. 476; People v. Im-lay, 20 Barb. 79; Santa Clara v. Railroad Co., 118 U. S. 396. (4) Sutton v. Clark, 7 W. N. 437; Shonk v. Brown, 61 Pa. 320, 327; Williams’s App., 72 Pa. 214, 217; Plankroad Co. v. Davidson, 39 Pa. 435; Ervine’s App., 16 Pa. 256; Thirteenth St. Ry. Co. v. Boudrou, 92 Pa. 475; Horstman v. Kaufman, 97 Pa. 147; Sewickley Bor. v. Sholes, 118 Pa. 165. Counsel cited: (1) Act of March 10, 1810, 5 Sm. L. 106. (2) Columbia Ins. Co. v. Kingon, 8 Vroom 35; List v. Commonwealth, 118 Pa. 322; Paul v. Virginia, 8 Wall. 181. (3) Pembena Co. v. Pennsylvania, 125 U. S. 181; Philadelphia Ass’n v. New York, 119 U. S. 110; Augusta Bank v. Earle, 13 Pet. 536; Commonwealth v. Alger, 7 Cush. 58, 84 ; McKellar v. Kansas, 103 ü. S. 623 ; Munn v. Illinois, 94 U. S. 113; Slaughter House Cases, 16 Wall. 36; Doyle v. Insurance Co., 94 U. S. 535. (4) Commonwealth v. Green, 58 Pa. 226; Allegheny Co. Home’s App., 77 Pa. 77; State Line R. Co.’s App., 77 Pa. 429; Fox’s App., 112 Pa. 337; Dewhurst v. Allegheny, 95 Pa. 437. (5) Powell y. Pennsylvania, 127 U. S. 678 ; Barbier y. Connolly, 113 U. S. 27; Yick Wo y. Hopkins, 118 U. S. 356; Powell y. Commonwealth, 114 Pa. 265.
139 Pa. 612Fidelity Etc. Co. v. Loughlin (1891)
1. Section 21, act of June 1, 1889, P. L. 420, provides for a state tax of . one half mill upon the capital stock of “ every corporation.whatsoever,” for each one per cent of dividend declared, if such dividend amount to six per cent or more; if no dividend, or less than six per cent, be declared, the tax is then to be three mills upon each dollar of the value of the stock, as ascertained by the method directed in § 20. 2. The object aimed at is a uniform tax on the actual value. The different methods of estimating such value, in regard to property which though of the same kind is thus differently situated, are within the province of the legislature to determine; and the uniformity of the tax, as laid by §§ 1 and 21, of the act, and its consequent validity, are settled by Fox’s App., 112 Pa. 337. 3. But, clearly to prevent double taxation on mortgages, etc., which are taxed eo nomine in § 1 of said act and as part of the capital stock in § 21, the proviso to the latter section is added, that corporations, etc., “liable to tax on capital stock under this section,” shall not be taxable on mortgages, etc., constituting assets “ included within the appraised value of their capital stock.” 4. Wherefore, the intent of the act was to tax all mortgages three mills on the dollar, but not to tax any of them twice. Upon mortgages included in the capital stock of corporations, three mills are levied, indirectly under §21, on their value as part of the stock as estimated by the profits earned; but upon mortgages not so included, directly under § 1, as upon mortgages in the hands of individuals.
139 Pa. 623Amer. Pavement Co. v. Wagner (1891)
APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY. . No. 14 July Term 1890, Sup. Ct.; court below, No. 82 June Term 1888, C. P. No. 4. On May 29, 1888, the American Artificial Stone Pavement Company, Limited, brought assumpsit against Louis Wagner, to recover damages for a refusal by the defendant, acting as the director of public works of the city of Philadelphia, to award to the plaintiffs, as the lowest responsible bidders, a contract for certain public work in said city, and for subsequently awarding such contract to another person, in violation, as was alleged, of the plaintiff company’s rights. At the trial, on November 13,1889, the following facts were shown upon the part of the plaintiffs: On December 31,1886, the councils of Philadelphia, by ordinance, made an appropriation for extensions in the water department, and under that ordinance the defendant, who was the director of the department of public works, advertised on May 17, 1887, inviting proposals for the lining of a certain section of the East Park reservoir, reserving “ the right to accept or reject any or all bids, as he may deem best for the interests of the city.” The specifications furnished to bidders defined the work to be done as the covering of the bottom ,and the inside slopes of the embankment, to within twenty feet of the top, with a coating of concrete five inches in thickness, and, thence to the top of the slope, with bricks laid on edge, in cement two inches in thickness. The specifications stated the estimated quantities of concrete and brick lining that would be required, and contained the following provisions: “ The contractor is bound to adopt any change of plans that may be deemed, advisable, and an allowance shall be made for or against him, as the case may be, the amount of such allowance to be determined by the chief of the bureau of water, and stated in writing previous to the work being executed. Such alterations will not annul the contract except as to such altered parts. No extras will be allowed. The estimated quantities may be increased or decreased.” On May 31, 1887, the bids received for the work were opened, when the plaintiffs were found to be the lowest bidders, their offer being to do the brick work for $2.87 per square yard, and the concrete work for $1.23 per square yard, the price of the entire work at these figures, amounting to $65,934.15. The defendant accepted none of the bids made at that time. On July 20, 1887, the defendant again advertised for proposals for the same work. This time the specifications were substantially identical with those on which the bids of May 31, 1887, were based, except that alternative bids were invited for the lining of the entire slopes with bricks laid on edge, bedded in cement, instead, of carrying the concrete work up to within twenty feet of the top. Bids were to be received until August 2d, at noon. On July 30, 1887, the plaintiffs, who made no bid under the advertisement of July 20th, filed a bill in equity against the defendant, praying that he be decreed to award the contract for said work to the plaintiffs, upon their bid furnished under the advertisement of May 17th, and that he be enjoined from awarding any contract therefor under the advertisement of July 20th. The bill averred the plaintiffs’ willingness, “ under this bid, and in accordance with the specifications providing for the increase or decrease of the quantities,” to line the entire slope with bricks on edge, bedded in cement. On the same day, July 30th, the plaintiffs’ counsel notified the defendant, in writing, of the filing of that bill. The defendant, notwithstanding, went on, received bids, and awarded to Lewis Grant, who was the lowest responsible bidder, a contract for lining the res: ervoir in accordance with the second of the alternative modes mentioned in the specifications, to wit, by covering the slopes from top to bottom with bricks bedded in cement. Grant’s contract was duly performed by him, and the amount which he became entitled thereunder to receive from the city was 159,155.53. The compensation for doing the work in the same way, at the prices previously bid by the plaintiffs, would have been 178,493.27. After the work had been done by Grant, the defendant filed an answer, and a supplemental answer, to the bill filed against him by the plaintiffs, averring inter alia, in substance, that the bid of the plaintiffs, and all other bids submitted at the same time, were rejected under, the right to do so reserved in the advertisement inviting proposals, such rejection not béing made arbitrarily, but because the director of public works deemed it best for the interests of the city; that, by the authority and with the approval of the committee on water of the city councils, the specifications were changed and an advertisement for new bids made, with a view to obtain a lining superior to that con templated in the first specifications, such change being, in the judgment of said committee and also in the judgment of the defendant, best for the interests of the city, and the result of re-advertising for this work was a saving to the city of nearly $20,000. The suit in equity was never proceeded with to final decree. The damages laid in the plaintiff’s statement of claim, as the profits that would have accrued, if the contract had been awarded to them by the defendant, were $19,337.74. James A. Mundy, president of the plaintiff company, testified, inter alia, on their behalf that, “ If the contract had been given, we would have made a clear profit of about $17,000.” At the close of the testimony for the plaintiff the court, Willson, J., on motion of the defendant, entered judgment of compulsory nonsuit, with leave, etc.; exception. A rule to show cause why the judgment of nonsuit should not be lifted having been argued before the court in banc, the rule was discharged, opinion by WillsON, J.; whereupon, the plaintiffs took this appeal, specifying the order entering the judgment of nonsuit, for error. 1. Under the statutes providing for bids for public work, the law secures the contract to the lowest responsible bidder, unless cause be shown against it, which, in the judgment of a legal tribunal, is sufficient: § 26, act of May 13, 1856, P. L. 568; McKinley v. Philadelphia, 6 Phila. 128; Kerr v. Philadelphia, 8 Phila. 292; § 6, act of May 23, 1874, P. L. 233; Gutta Percha Co. v. Stockely, 11 Phila. 219 ; Commonwealth y. Mitchell, 82 Pa. 343; Addis v. Pittsburgh, 85 Pa. 37,9; Douglass y. Commonwealth, 108 Pa. 563; Campbell v. Philadelphia, 15 Phila. 141. The cases of Yealy v. Pink, 43 Pa. 212, and Burton v. Fulton, 49 Pa. 151, relied on by the court below, do not support its ruling. The former was a suit against a supervisor for building a causeway which he had undoubted authority of law to build. The latter was an action against school directors for the dismissal of a teacher, and it could not be maintained, because teachers hold their places at the pleasure of the directors : Field v. Directors, 54 Pa. 233. 2. If, after receiving the bids, the city had concluded to abandon or postpone the work, or to prosecute it upon a different plan, a sufficient cause for not awarding the contract to the plaintiffs would be shown. But the defendant is not the city. He could not of his own will, and according to his caprice, abandon, postpone or prosecute, upon plans not approved by his principal. His second advertisement was a manifest attempt to deprive the plaintiffs of the benefit of their bid under the first advertisement, without any cause. The variation in the specifications effected no real change, the first specifications having provided that “ the estimated quantities may be increased or decreased,” and having bound the contractor “ to adopt any change of plans that may be deemed advisable.” His excuse that, by opening the sealed bids and giving others the benefit of the unsealing, a saving was effected, is not a legal justification. And the illegal act of the defendant was the act of himself as an individual officer, not authorized by the city, and the liability is his alone. Even if the water committee did approve the act, they were without power to represent the city in so doing: Articles XIV., xvi., act of June 1, 1885, P. L. 37. The measure of damages, when one is deprived illegally of a contract, is the profit he certainly would have made, if he had been allowed to perform it: Railroad Co. v. Howard, 17 How. 326; Lentz v. Choteau, 42 Pa. 437. This is an extraordinary ease. A public officer is sued, not for negligence in office, nor for corruption, nor for misfeasance, nor for improvidently entering into contracts by which the public money has been wasted, but for simply exercising the option which he reserved to himself, to reject all bids if he deemed it best for the municipality whose officer he was, and for refusing to award the contract to any of the bidders.
139 Pa. 632Bittner v. Hartman (1891)— Affirmed at Bar
139 Pa. 636Hayes v. Coatesville Opera-House Co. (1891)— Affirmed at Bar
139 Pa. 640Estate of Lewis (1891)— Affirmed at Bar
139 Pa. 646Johnston v. Philadelphia City (1891)
1 OF PHILADELPHIA COUNTY. No. 380 January Term 1890, Sup. Ct.; court below, No. 157 June Term 1889, C. P. No. 1. On June 1, 1889, Frank Johnston brought trespass against the city of Philadelphia, to recover damages for personal injuries suffered by the plaintiff, by reason of the alleged negligence of the defendant in allowing the highway on Girard Avenue to be in a defective condition. Issue.