143 Pa.

Volume 143 — Pennsylvania State Reports

54 opinions

143 Pa. 1Bemisch v. Roberts (1891)
[To be reported.] (a) While the plaintiff, with other workmen employed at an iron mill, was pushing a vehicle known as a “ buggy,” loaded with bars of iron, a part of the load fell upon and injured him. The buggy was so constructed that by inserting in certain holes iron pins or rods, provided for the purpose, the accident could have been prevented. (b) Such pins wore not used in this instance. Testimony for the plaintiff tended to show that their use was prevented by the condition of the holes, being so worn and enlarged that they would not hold the pins; that the plaintiff had not assisted in loading the buggy, and did not know that the pins wore not in place. This he could have ascertained by a glance. (c) There was no evidence that the employer knew of the defect in the buggy. There were more than a hundred buggies at the mill from which workmen made their own selection when they had occasion to load one. There was some evidence that the load upon this particular buggy was improperly piled, and that this contributed to the accident: 1. The absence of the pins, the real cause of the iron falling off the buggy, being manifest and conspicuous, the plaintiff was bound to notice it, and was chargeable with negligence in failing to do so; wherefore. lie was not entitled to recover damages for Ms injury, in an action against Ms employer: Phila. etc. R. Co. v. Huber, 128 Pa. 63, distinguished. 2. Moreover, for the negligence of the plaintiff’s fellow-workmen in voluntarily selecting and loading a buggy that was defective, when they were entirely at liberty to select one that was in good condition, the master was not responsible; and therefore, the plaintiff was not entitled to recover in any aspect of the case.
143 Pa. 10Blight v. Camden etc. R. (1891)
No. 257 January Term 1891, Sup. Ct.; court below, number and term not shown. On August 25, 1888, “ Charles P. Blight, administrator of George Leightheisel, deceased, to the use of John Leightheisel, and Mary Leightheisel, parents of deceased, and Mary Leightheisel, his sister,”* brought trespass against the Camden & Atlantic Railroad Company. Issue. At the trial on October 20, 1890, the plaintiff adduced testimony showing that on August 5, 1888, about five o’clock in the afternoon, George Leightheisel, the deceased, and one Charles Schad were about to cross the railroad track of defendant company at a public crossing near Chiselhurst station, New Jersey, to take a train to Philadelphia. The railroad ran somewhat north and south. The highway crossed it at right angles. The station was on the west side of the track and south of the crossing. About one hundred and fifty yards south of the crossing was a cut through which the track passed. A heavy thunder storm broke upon the deceased and his companion as they approached the crossing from the east. Schad testified that when they got to a point about three yards from the track, carrying umbrellas, they stopped to see if any train was approaching; that they looked south towards Atlantic City, but did not see or hear any train; that the storm was blinding, and the witness did not believe one could see more than ten yards; that as they passed upon the track an express train approached from the south, and passed the station and the crossing at the rate of sixty miles an hour, without ringing the bell or blowing the whistle. Leightheisel was killed on the track. The testimony of other witnesses called by the plaintiff sufficiently appears in the opinion of the court. At the close of the plaintiff’s case, the court, Finletter, P. J., on motion of the defendant, entered a judgment of non-suit, with leave, saying: There is no doubt that in this ease the defendants were negligent, and the only question that remains is whether the deceased was or was not negligent. The evidence is that persons could see nearly six hundred yards down the road, and it is almost impossible to conceive that any person could stop and look and listen, and then be instantly killed. This man could have seen, if he had taken the precaution which the law required, to stop and look and listen. I do not see that the evidence is at all satisfactory that it was impossible to see more than ten yards, because these people were seen at a distance of three or four hundred yards in the same storm, and were seen down to within thirty feet or ten yards of the track. But it seems to me that if the storm was so violent that they could not see, the greater the necessity to stop and to stop long enough. I am compelled in this case to enter a nonsuit. —A rule to show cause why the judgment of nonsuit should not be taken off having been discharged, the plaintiff took this appeal, assigning the orders entering the judgment and discharging said rule, for error.
143 Pa. 14Bacon v. Delaware etc. R. (1891)
No. 240 January Term 1891, Sup. Ct.; court below, No. 192 February Term 1887, C. P. On January 28, 1887, Lena Bacon brought trespass against the Delaware, Lackawanna & Western Railroad Company, to recover damages for the death of the plaintiff’s husband. The statement of claim filed averred, inter alia: That on October 12, 1886, the defendant company was the owner, and was in possession and use of a certain railroad, locomotive-engine, cars, station, and passenger platform at the village of Nicholson, Wyoming county, all which were under the charge, government and direction of servants of the defendant, “ who were then and there driving and propelling the said locomotive-engine and cars along and upon the said railroad at the said station and platform; ” that the defendant negligently maintained the said platform, so that it was in certain places .full of holes and defective and unsafe for persons to walk upon; “ that through the mere carelessness, negligence and improper conduct of the said defendant, the plaintiff’s husband, Arthur Bacon, being lawfully upon the said platform at said station, as a passenger on the cars of said defendant, and while in the act of walking upon said platform for the purpose of getting on the cars of said defendant, in the nighttime, his foot sank into a hole in the said, platform, thereby causing him to be thrown with force against and under the moving train of cars at the platform and station aforesaid, by means whereof the said Arthur Bacon, plaintiff’s husband, was greatly bruised, hurt and wounded, so that afterwards, to wit, on the twelfth day of October, 1886, at the county aforesaid, he died of said woundsetc. The defendant pleaded not guilty. At the trial on June 13, 1890, the following facts were shown: On October 12, 1886, an excursion party went from Scranton to Hiawatha Island, N. Y., under the auspices of a lodge of thp Junior Order of United American Mechanics, returning the same evening. Both going and returning, the cars occupied by the excursionists were attached to a regular passenger train on the defendant company’s railroad. The plaintiff’s husband, Arthur Bacon, residing at Scranton, formed one of the party, having purchased an excursion ticket through the committee of the lodge in management of the excursion. On the return trip, the train reached Nicholson, one of its regular stopping places, about 7.23 p. M. At that place, the conductor was informed that the pump of the locomotive was out of order, and that it would be necessary to get the assistance of another engine to move the train to Scranton. He reported this by telegraph to the proper officer, and asked for the necessary order. While the order was awaited, the train stood on the track in front of the station, and the plaintiff and other passengers got off and passed the time upon the platform. Orders having come to use a freight engine, the train was backed up some distance above the station, where the freight engine was attached to it. It then started on its way. While it was moving past the station at the rate of from three to four miles an hour, according to the testimony for the plaintiff, or four to five miles an hour, according to the testimony for the defendant, Bacon, who until that time had remained standing on the platform, talking with some friends, walked rapidly across the platform toward the train, and when close to it he fell forward against the end of one of the cars and then under the car. Both his legs were cut off by the car wheels, and he died that night from the wounds thus received. The plaintiff called two witnesses who described the accident. Their testimony, parts of which are quoted in the opinion of the Supreme Court, infra, tended to show that Bacon’s fall was occasioned by his catching his foot in a hole close to the edge of the station platform, left unrepaired for months, and that at the instant of falling he was facing the train and was about opposite the platform of one of the cars. Each of these witnesses said that he did not know whether the deceased was trying to get on the train or not. For the defendant, a number of witnesses testified that Bacon was in the act of attempting to get on the cars when he fell. Several witnesses testified for the defendant that, before the train was backed away from the station, the conductor gave warning to the passengers to get on by calling out “ all aboard ” twice; one of them testifying, further, that the conductor called out also that the train would not. stop at the station as it came back, and that the witness thereupon warned the deceased to get on board before it started, to which the deceased replied that he was used to jumping trains. This testimony was not contradicted, though one of plaintiff’s witnesses testified that he did not hear the conductor cry “ all aboard.” There was some evidence also that the deceased appeared to be partly intoxicated, and evidence to the contrary in rebuttal. At the close of the testimony, the court, Woodward, J., charged the jury as follows : This action is for alleged negligence resulting in accident and death, and is brought by the legal representative, the widow of the deceased. To recover damages in this case, it was necessary for the plaintiff to show, first, that the defendant was guilty of negligence which caused the accident resulting in the death of the deceased; and [secondly, the court must be satisfied from the evidence, that if the negligence of the company has been established, it has not been shown that negligence of the deceased concurred with that of the company in producing the result. Or, to put it in a different form, if the judge trying a case, after a careful examination of all of the evidence submitted, is satisfied that this evidence establishes the fact of concurring negligence at the time of the disaster, on the part of the person injured, then it is his duty to take the responsibility of saying, under the rules of the law, there can be no recovery.]1 Now, we have examined this case with these legal rules in view, and our examination results in this: 1. The declaration in this case alleges negligence on the part of the defendant company; also, that the deceased was upon the platform at the company’s depot, with the intention of boarding the cars. [2. The evidence shows that the deceased was injured while making an effort to board the train of cars while it was in motion.]2 [3. The evidence also shows that the deceased, while making an effort to board the train in motion, was distinctly warned of the danger of so doing, but insisted on making the effort, notwithstanding the warning.]3 A thorough analysis of the evidence in the case compels us to say that these three statements are a fair deduction from the undisputed facts, and it therefore becomes our duty to affirm the third point of the defendant, which reads as follows: 3. Under the undisputed testimony of the plaintiff, it having been shown that the decedent purchased a ticket for the excursion from Scranton to Hiawatha Island and return, that he was a passenger on the train returning to Scranton, and that he got out of the train at Nicholson, an intermediate station, of his own volition, and attempted to get on the train again when it was in motion, he was of his own action guilty of contributory negligence, and the verdict must be for the defendant. Answer: In affirming this point,we say, after examining the law, we find it to be the general rule, leaving out of view extreme cases and emergencies, that the attempt to board a train in motion, is negligence; and we see nothing in the present case to take it out of the effect of this general rule. It is therefore our duty, on this question of contributory negligence, to affirm the third point of the defendant; and this results in our being obliged to say to the jury, as matter of law, the plaintiff cannot recover in this action; and we so instruct you. The verdict should be for the defendant.4 I am requested by the plaintiff's counsel to charge you: 1. That the deceased had a right, under the evidence in the case, to be upon the passenger platform at Nicholson. Answer: That point we affirm. 2. If the injury done to Mr. Bacon was the result of carelessness and negligence on the part of the defendant, without fault on the part of the deceased, plaintiff may recover in this action. Answer: As a legal proposition, that is correct, although we are unable to apply it in the present case; we therefore affirm it as a legal proposition. 3. If the jury believe that on the approach of the train at a speed’of between three and four miles an hour, Mr. Bacon left a party of friends with whom he had been conversing on the station platform, and walked towards the train, intending to enter a car after the train had stopped, and that without negligence on his part, and not having attempted to board the moving train, he caught his foot in a hole, as described by the witnesses on the part of the plaintiff, and was thereby thrown under the car and injured, plaintiff may recover. Answer: We decline to affirm that' point, because we do not think it is justified by the evidence in the case, and it is disaffirmed.5 —The jury returned a verdict for the defendant. Judgment having been entered thereon, the plaintiff 'took this appeal, assigning for error: 1-3. The parts of the charge embraced in [ ] 1 to 3 4. The answer to defendant’s point.4 5. The answer to plaintiff’s point.5
143 Pa. 24Estate of Eshelman (1891)
No. 190 January Term 1891, Sup. Ct.; court below, number and term not shown. John Eshelman died without issue on October 6, 1885, leaving a widow, Annie E. Eshelman, the appellant, and six sisters, whose names appear in the quotation from his will below. The will of the decedent was dated June 20, 1885, and was admitted to probate on October 12, 1885. By said will, the testator devised a certain lot to David G. Beidleman; bequeathed certain chattels to two of his sisters respectively; directed the conversion into money of all the residue of his property, real and personal, and bequeathed to his wife out of the proceeds thereof the sum of twenty-five hundred dollars. He then provided, inter alia, as follows: “ I owe my sister, Ann R. Eshelman, the sum of four thousand six hundred dollars. I owe my sister Mary Eichelberger two thousand dollars. I owe my sister, Fanny Lantz, two thousand dollars. I owe my sister Elizabeth May, two thousand dollars. I owe Catharine Wolf two thousand dollars. I owe Susan R. Eshelman two thousand dollars. - My executor hereinafter named is directed to pay the several sums mentioned to my sisters, within two years after my death;....” David G. Beidleman was named in the will as the executor thereof, and letters testamentary were duly issued to him. On August 16, 1887, the first and final account of the executor, exhibiting a balance of $5,458.01 in his hands for distribution, was confirmed by the Orphans’ Court, and on September 20th, Mr. A. B. Sharpe was appointed auditor to distribute said balance. On February 2, 1890, while the proceeding to distribute was pending before the auditor, the widow entered an appeal to the Orphans’ Court from the decree of the register admitting the decedent’s will to probate, and on the same day she presented to the auditor a demand for an issue, to determine whether or not certain judgment bonds, signed by the testator in favor of his six sisters, respectively, for the sum of two thousand dollars each, bearing date June 19, 1885, payable April 1, 1888, presented to the auditor for allowance as debts due from the estate of the testator, were executed on the same day with the will, were intended to be and were actually delivered to the several obligees after the death of the testator, and were executed and directed so to be delivered for the purpose of injuriously affecting the interest of the widow in his estate, the testator, as was averred, declaring at the time of executing them that he was not indebted to said obligees and that they were made for the purpose aforesaid. The demand for an issue was thereupon certified to the court by the auditor, with the testimony taken before him. After argument, the court, Stewart, P. J., 39th district specially presiding, on May 1, 1889, filed an opinion in part as follows: In support of the motion for an issue, counsel have submitted the evidence taken before the auditor appointed to make distribution of the funds in the hands of the executor. In the view we take of this case, it is not necessary to consider this evidence at length, nor to pass upon its sufficiency for the purpose it was submitted, at this time. The application for the issue is made on behalf of the widow, who alleges that the several bonds specifically set out in her motion and which were executed by the testator, were not delivered to the obligees in the testator’s lifetime; that they were without any consideration to support them, and that they were executed by the testator with directions for their delivery after his death, for the purpose of injuriously affecting the interests of the widow in his estate. The testator, by his will, gives to his widow the sum of two thousand five hundred dollars, and by his will he recognizes the bonds referred to as his proper debts, and directs their payment. We have not been furnished with a copy of the will, but these facts appear from the evidence submitted, as well, also, the further fact, which we regard as entirely controlling, viz., that the widow has not, as yet, made her election with reference to testator’s will. It may be that the testator had no other purpose in executing the bonds and in directing their payment in his will, than to reduce the share of his estate which otherwise his widow would be entitled to receive. But, however this was, the same will which directs the payment of these bonds gives to the widow a legacy of two thousand five hundred dollars. If she accepts this provision made for her, she cannot be heard to assert a claim repugnant to the terms of the very will from which she derives a benefit, and until she makes her election, how are we to know what her purpose in this regard is ? She cannot accept this legacy of two thousand five hundred dollars, and then contest the validity of the will with respect to the bonds. It is only by putting herself in opposition to the entire will, so far as her own interests are concerned, that she can have any standing to contest any part of it. If she takes under the will, she takes whatever benefits it confers, along with all the disadvantages which may result. If, on the other hand, she takes against the will, in such case, she is not concluded by any of its terms. But, until she does the latter, she is not in position to ask for an issue respecting the validity of any of the provisions of the will. It might be that, under ordinary circumstances, the court would be warranted in accepting this request for an issue as an election to take against the will; but the evidence submitted shows an agreement between the parties that the exercise of her privilege of election is to be continued or postponed until a final settlement, and that her acts meanwhile are not to prejudice her rights in this regard. This, agreement leaves the matter open and undetermined. Under existing circumstances, the issue ought not to be awarded. But the rule must be discharged without prejudice to the right of the petitioner to renew the application, upon her filing her election to take under the intestate laws of the commonwealth. Rule discharged. —From the order discharging said rule, Annie E. Eshelman on August 27, 1889, took an appeal to the Supreme Court. The audit was then proceeded with, against the objection of Mrs. Eshelman; and, on February 10, 1890, the auditor filed his report, embodying the material testimony relating to the controversy between the widow and the sisters of the testator as to the allowance of the bonds held by the latter, in the distribution. The testimony was in substance to the following effect: H. N. Bowman, the scrivener of the will, testified that he had written a prior will for the testator, by which no legacies were given to the latter’s sisters; that, when the witness was writing the last will, he inquired of the testator whether the latter owed the two thousand dollars which he was giving to each of his sisters, to which the testator, replied that “ he did not, but that he did not want the woman, as he called Mrs. Eshelman, to get more than twenty-five hundred dollars; ” that the will and the bonds were written at one sitting and executed at the same time; that their execution was attested by the witness and by Beidleman, the executor, and that Beidleman was instructed by the testator to hold the bonds until after his death, and then deliver them to the sisters. Beidleman testified that his recollection of the conversation, in connection with the preparation and execution of the will and bonds, was substantially the same as that of Bowman; that the will and bonds were both handed to the witness on the day of their execution, June 20, 1885, with instructions to hand over the bonds to the sisters after the testator’s funeral, and in pursuance of these instructions the witness did hand them over on the day the testator was buried, without having taken advice of counsel on the subject. For the obligees in the bonds, several witnesses testified to conversations between themselves and the testator at different times between 1861 and 1885, in which the testator made declarations to the effect that he was indebted to his sisters for their interests in his father’s estate, he having taken the farm and their money having been left in it, and that they had given him releases without receiving any papers in return, and held no notes for their money. Parts of the testimony of these witnesses are quoted in the opinion of the Supreme Court, infra. Four of the testator’s sisters, and John Lantz, the husband of one of them, testified under objection as to their competency. Their testimony tended to prove that the six sisters conveyed to the testator their interests in the farm left by their father, under an arrangement that each of them should leave one thousand dollars of the consideration money in the farm ; that the' testator at different times talked with his sisters about the sums thus owing to them, saying that they would not lose their money, but would get it when the farm was sold; and that, but a short time before his death, he told at least two of them that he had fixed things so that they would all get their money, having made notes for it, and that he stated to one of the sisters that the notes were in the possession of Mr. Beidleman or Mr. Bowman. The deed, by which the testator’s sisters conveyed their interests in the farm to the testator, was put in evidence by the widows It bore date March 20, 1861, and recited an agreement between the widow and heirs of Jacob Eshelman that John, one of them, should take the farm at twelve thousand dollars, “ deducting from the said valuation money the sum of §705.61, charged upon the said land in favor of the widow and heirs of John Moltz, and the further sum of $2,884.72§ also charged on the same tract in favor of the widow and heirs of Jacob Moltz; ” one third of the balance of the said valuation money to be charged on the said land, the interest thereon to be paid Elizabeth Eshelman, the widow, during her life, and at her death the principal sum of the said one third part to the said children of the said Jacob Eshelman ; John Eshelman to pay to his sisters their equal shares of the other two thirds of the valuation money. The deed then stated the consideration of the conveyance to be the agreement so recited and, also, “the sum of $799.58, paid by the said John Eshelman to each of his said sisters, the receipt whereof is hereby acknowledged,” and conveyed the land subject to the two charges of $705.61 and $2,884.72§, mentioned in the agreement recited, and to a further charge of $2,803.20, the interest whereon was to be paid to Mrs. Elizabeth Eshelman during her life, and at her death the principal to be paid to the children of Jacob Eshelman, including said John, in equal proportions. The widow also put in evidence a release* from the daughters of Jacob Eshelman to John Eshelman dated June 16,1866, acknowledging the payment of $406.46 to each of said daughters, in full satisfaction of all moneys payable to them out of the estate of Jacob Eshelman, deceased, after the death of their mother, Elizabeth Eshelman, deceased; and the account of John Eshelman as administrator of Jacob Eshelman, deceased, which showed a balance for distribution of $5,216.23, and claimed credit for payments on distribution aggregating $3,208, as follows : to the widow $808, and to each of the daughters $400. Upon the testimony before him, the auditor found that the several bonds held by the sisters of the testator, dated June 19, 1885, for two thousand dollars each, represented legitimate debts entitled to come in on the fund for distribution,1 and reported further the following conclusions of law: [That the appeal taken by the widow of testator (from the decree of the register of the twelfth of October, 1885, admitting to probate the will of testator ), which is dated the second of February, 1887, is too late to be effective, as more than three years had intervened before she took it, and it therefore is no supersedeas.]11 [That her appeal to the Supreme Court from the decree of Judge Stewart, filed May 1, 1889, declining to grant an issue until she elected to take under or against the will of testator, is no supersedeas, nor is it a reason why the auditor should delay making this distribution, as no right to an appeal exists, the power to grant or withhold an issue being exclusively with the court below.]8 [That he had authority in the premises to do all he has done, although there was no direction to him to proceed by the court in their opinion filed on May 1, 1889. This was not needed.]9 The record of the proceedings before the auditor up to February 2, 1889, with the opinion of the court declining the demand of the widow for an issue, and her appeal from the decree of the register, were all handed to the auditor by counsel, requesting him to fix a day of meeting; and he, on May 14, 1889, had the written consent of all the counsel in the case, those concerned for the executor and the creditors, as well as the counsel for the widow, to meet on the eighteenth of that month at his office; and they did attend on that day and at all the subsequent meetings up to the twenty-fourth of January, 1890, when the audit closed. [He overrules the objection to the competency of Annie R. Eshelman, Mrs. Fanny Lantz, their two sisters, and John Lantz, taken by the counsel for the widow, and holds that the exceptions can relate only to their credibility; as he does, also, the exceptions of the counsel on both sides, taken to the testimony embodied and considered in his report.]3 —In accordance with his conclusions, so reported, the auditor, after surcharging the accountant with $7,388.25, increasing the net balance for distribution, after payment of costs, to $12,556.87, distributed that sum pro rata to the six bonds in controversy and to a number of notes and accounts allowed as claims against the decedent’s estate, the dividend awarded on each claim being a fraction over sixty-five per cent. To the report of the auditor the widow filed exceptions alleging that the auditor erred in his findings and conclusions.1 3 8 9 11 Said exceptions having been argued, the court, Stetwart, P. J., specially presiding, on November 14, 1890, filed an opinion and decree as follows: We have delayed making a disposition of this case, in the expectation that an election by the widow of John Eshelman would be made, either voluntarily or by citation under the act of assembly, in view of the opinion filed when the application for an issue was before us. Neither has been done, and the matter should be concluded without further delajn The findings by the auditor are fully warranted by the evidence in the case, and his conclusions of law are correct. The exceptions, therefore, are overruled, the report is confirmed, and the accountants directed to pay over the balance in their hands, in accordance with the schedule submitted by the auditor. —Thereupon the widow, Annie E. Eshelman, now Annie E. Reiver, took this appeal, specifying inter alia that the court erred: 1, 3. In not sustaining appellant’s exceptions.1 3 8, 9. In not sustaining appellant’s exceptions.8 9 11. In not sustaining appellant’s exception.11
143 Pa. 39Leggett v. Western N. Y. etc. R. (1891)
No. 436 January Term 1891, Sup. Ct.; court below, No. 8½ June Term 1890, C. P. To the first Monday in April, 1890, Neva E. Leggett brought trespass against the Western New York & Pennsylvania Railroad Company, to recover for personal injuries alleged to have been caused by the negligence of the defendant. The defendant’s plea was not guilty. At the trial on February 11, 1891, the following facts were shown: On December 14, 1889, the plaintiff was a passenger upon a train of the defendant company. Her destination was Sugar Run station, which was reached by the train after dark, about six o’clock P. M. When the train stopped at the station, the brakeman who had announced the station and whose duty it was to assist passengers in the rear car to alight, started forward towards the engine. Testimony for the plaintiff tended to show that it was but a few seconds from the time the cars stopped until they started again, while several of the train crew testified for the defendant that the stop was for the “usual time.” The conductor testified that he signaled the engineer to start, after hearing the brake man call out, “ All right here.” As soon as the train had come to a stop at the station, the plaintiff gathered up a number of packages, and started to the door of the car. The testimony of one of the witnesses for the defendant tended to show that she turned back, before reaching the platform of the car, to get something she had forgotten, and that the train was moving before she reached the door. Two other ladies, who preceded the plaintiff, got off safely. The plaintiff testified that after she had reached one of the car steps she became aware that the cars had started, and almost instantly, without having time to think anything about stepping off the train while it was moving, she fell forward, and, alighting on the ground, received the injuries complained of. The testimony of several witnesses for the defendant tended to show that she stepped or jumped off the car, after throwing her packages off. The facts are more fully stated in the opinion of the Supreme Court, infra. At the close of the testimony, the court, Metzger, P. J., 29th district, specially presiding, charged the jury in part as follows: I will not recapitulate the testimony further than I deem it necessary in order to draw your attention to the question involved in the case, and enable you to see what the real issue is that you are trying, and also to understand the testimony. The plaintiff, herself, is not here ; and it is stated that the reason of her not being present is the fact of her present physical condition being such that she could not appear here. But we have her deposition, which has been read in your hearing. [She testifies that when the train arrived at Sugar Run station it was dark; that she understood the train was two minutes late; that she sat in the rear car, about midway in the car, and that as the train approached the station the brakeman opened the door of the car, announced the station and the train stopped; that while the train was stopping, she immediately gathered up her satchel, her money bag and umbrella, which she had with her, and walked out; that when she got upon the steps of the platform she became aware that the train was moving ; that she had her valise in one hand and her money bag and umbrella in the other hand; that she has no recollection of making any effort to step off; and in cross-examination she says that she stood but an instant, I think, and then knew nothing more; the next thing she remembered she was lying on the ground. Mr. Wooster is called, who, it seems, that evening was at the station, and was standing at the window, right inside the door; that the moment the train approached and he saw it stop, he started out of the door, and he did not go more than three or four steps, he says, until the train started. You have also the testimony of young Miss Morrison, who testifies that the train, in her judgment, did not stop five seconds. You have the testimony of her sister, who is probably mistaken, but will illustrate, probably, the shortness of the stoppage. She was called by the defendant, and she testified that she did not think the train stopped at all. We have also the testimony of one Mr. Sheldon, who testifies that he saw the two ladies, Misses Morrison, and this other lady, whom he did not know at the time, but who, undoubtedly, was the plaintiff in this case, get up and go out of the car; and that the train was moving, or moved before they got off; and he must, from his testimony, have suspected that an accident would occur, as he says he opened the window and looked out, and the train was moving at that time. The defendant then calls one Vangorder, who testifies that he was on the train, and that he saw these ladies get up and go out; and he also saw another lady, whom he never saw before and I believe has not seen her since, get up and walk to the door and then go back for something, and all this while, if his testimony is to be believed, the train was moving. This is all the testimony that I remember that bears directly upon this point, except the general testimony of the employees of the road, who state that they stopped, as they believe, the usual time.]6 If you find from all the evidence that the defendant was guilty of negligence, by reason of not stopping a sufficient time at this station to enable the plaintiff to get off in safety, the plaintiff still is not entitled to recover, unless you find that she was not guilty of negligence, and that there is no fault to be attributed to her in producing this injury..... The question, then, will be, if you find the company was guilty of negligence, did the plaintiff in this case, when leaving the car, exercise such reasonable care as a prudent person having due regard to his or her personal safety would, under the circumstances, have exercised ? Did she leave her seat when the train stopped at Sugar Run station, with reasonable expedition, and go out, using reasonable care in so doing? But even if you should find, from the evidence, that you could answer these two questions in the affirmative, yet if she was at the time of attempting to get off the train conscious that the train was in motion, and by the exercise on her part of ordinary care and prudence she could have retreated and avoided the accident, she is guilty of negligence. In law, it is presumed that a prudent person will not attempt, knowingly, to alight from a train while it is in motion. Therefore, when one undertakes to do so, such person is guilty of contributory negligence, if an injury occurs. If, however, the circumstances at the time were such that the plaintiff was not aware of the motion of the train, until it was too late for her, by the exercise of ordinary care and prudence, to avoid the fall or the going off, whether by falling or stepping, and the train had not stopped sufficiently long to enable her, by the use of reasonable expedition, to get off in safety, then she is free from fault, and the injury was caused by the sole negligence of the defendant, and she is entitled to recover. [She may be said to have exercised proper care- and prudence, if, in a sudden emergency, she acted according to her best judgment, or if, because of want of time in which to form a judgment, she omitted to act in the most prudent and proper manner. The law will not hold one responsible for alleged negligence where it consists in the omission of a duty suddenly and unexpectedly arising, where the circumstances are such that the party has no time to think and is consequently unable to form a proper judgment before acting. In such case, all that is required is that the party act according to his or her best judgment at the time.]7 Now, gentlemen, this case resolves itself, therefore, into a question of fact, and the pinch of the case seems to be whether or not the plaintiff contributed by her negligence in any degree to the accident. If it were true that the train was in motion while she was yet at her seat, and she, knowing this to be the fact before she got out of the car, went out and stepped down while the car was in motion, we instruct you, if such was the fact, that she would be guilty of contributory negligence. [On the other hand, if you find the fact to be that the train did not stop sufficient time to enable passengers who acted expeditiously and prudently to get off in safety, and that she was not aware of the fact of the train being in motion until she got out on the platform and undertook to step off, then she may be entirely free from fault,] 9 [if you are satisfied from all the circumstances under which it occurred that she acted at the time according to her best judgment, and that by reason of fright, when thus confronted so suddenly with the danger which she for the first time saw when she was stepping off, she was impelled to do what she might not have done if she had time to consider. If you find the.facts and circumstances to be of such character as I have last stated, then she would be free from fault, provided you find that the defendant company was guilty of negligence, and the fact of stopping too short a time placed her in this position of danger.] 8 I think the legal questions that are involved will probably be covered by our answers to the points submitted by the counsel in the case. The defendant requests the court to charge: 2. Under the law of Pennsylvania, it is negligence per se for a passenger to alight from a moving train; and in order to escape this conclusion, the plaintiff must show affirmatively that after the train was moving she was induced by the train officers to leave the train, or that she had reason to apprehend greater danger from remaining on the train, or that the starting of the train and her stepping from it were simultaneous. Answer: We affirm this point, as far as it goes, but it does not contain all the facts that, we think, cover this case. We therefore qualify this point, for the reason that it does not contain all the facts by which the presumption of negligence in alighting from a moving train may be overcome. In addition to what the point contains on this subject, we say to you that if the defendant company did not stop its train at the station a sufficient time to enable the plaintiff to alight with safety, and the plaintiff proceeded to leave the car with reasonable expedition and care, and did not discover that the train was in motion until she came to the steps of the platform and was descending them, then her position of danger was one occasioned by the negligence of defendant; and if the jury further find, from the evidence in this case, that the danger was so sudden and unexpected that she had no time to deliberate and choose between the danger of remaining on and stepping off, and that under all the circumstances she acted according to her best judgment, then she is free from fault, and it does away with the presumption of negligence arising from the fact of alighting from a moving train.1 4. If the evidence shows that at the time the plaintiff reached the platform of the car before alighting, the train was moving, and that if she had used her senses she should have been aware of the fact, and notwithstanding this fact she jumped from the car, this constitutes contributory negligence, and the plaintiff cannot recover. Answer: We affirm this point, if you find no other facts in the case than what are stated here. But if you find the facts which we have stated to you, in our answer to the second point, and find that she was placed in the position in which she was at the time she alighted or was about alighting from the car, by the negligence of the defendant, and that the suddenness of the danger which confronted her was such as to deprive her of power to form proper judgment and make a judicious choice, then, although she might have retained her senses to a certain extent, she would still be free from fault. If she got into a position of danger through no fault of hers, but solely through the negligence of the defendant, she cannot be held responsible for a mistake of judgment in attempting to get out of the danger.2 5. If the undisputed evidence on both sides shows that at the time the plaintiff reached the steps of the car before alighting, the train was moving, and that she was aware it was moving, and notwithstanding this fact she jumped from the car, this constitutes contributory negligence and the plaintiff cannot recover. Answer: We affirm this point, provided you find that she did jump from the car, and at the time of so doing she was in such a condition that she was able to judge as to whether it was a judicious and proper act or not.3 6. Under the law and the evidence in this ease the plaintiff cannot recover. Answer: We refuse to charge you as asked in this point. We think there are sufficient disputed facts which warrant us in submitting it to you for determination.4 The plaintiff requests the court to charge : 3. If, when the train stopped at the Sugar Run station, the plaintiff proceeded to leave the car with reasonable expedition and care, and, when she was on the steps of the car platform, was thrown off by reason of the movement of the train before she had sufficient time to alight, and in consequence of the movement of the train was thrown off and injured, without any fault on her part, she is entitled to recover. Answer: Affirmed.4a 4. If the jury find from the evidence that the railroad company was guilty of negligence in not stopping its train a sufficient time to enable the plaintiff to alight with safety; that when the train stopped at the station, the plaintiff proceeded to leave the ear with reasonable expedition and care; that when she reached the steps of the car platform and was descending them, she then for the first time discovered that the train was moving; that her position was then one of clanger, occasioned by the fault of the defendant starting the train too soon, she is not chargeable with contributory negligence, if, realizing the danger in the excitement of the moment and without time to deliberate and choose between the danger of remaining on and stepping off, she voluntarily stepped off; and much less is she so chargeable if, under such circumstances, she stepped off by reason of the loss of her self-possession and not knowing what she did. Answer: We affirm this point, except to say to you that “if she voluntarily stepped off,” and was at the time in such condition that she was competent of judging as to her safety, then her “voluntarily stepping off” might not be good law; but, if it was done under an impulse of the moment, and she was utterly incapable, by reason of the suddenness of the danger confronting her, to form a proper judgment and to act with any greater prudence, then, of course, in making a choice, such as she did, although it might be a dangerous one, she would still be held to be free from fault.5 5. If .entitled to recover, the verdict should be for such an amount as will compensate the plaintiff for the injury sustained, so far as the same was occasioned by the neglect of the defendant ; and in fixing the amount, the jury may take into consideration the expenses incurred for medicine and medical attendance; reasonable expenditures for nursing;* the diminution of earning power; the mental and bodily suffering endured and likely to be endured in the future. Answer: We affirm this point; the measure of damages in this case is correctly stated in this point.10 —The jury returned a verdict for the plaintiff for $11,000. A rule for a new trial was discharged, on condition that the plaintiff remit $3,000 of the verdict. This condition having been complied with, judgment was entered on March 16,1891, in favor of the plaintiff, for $8,000; .whereupon the defendant took this appeal, assigning for error: 1-4. The answers to defendant’s points.1 to 4 4a, 5. The answers to plaintiff’s points.4a 5 6-9. The parts of the charge embraced in [ ] 6 to 9 10. The answer to plaintiff’s point.10
143 Pa. 53Mercantile N. Bank v. Lauth (1891)
Nos. 358, 357 January Term 1891, Sup. Ct.; court below, Nos. 45 January Term 1888, and 302 August Term 1888, C. P. On December 20, 1887, the Mercantile National Bank of the city of New York brought assumpsit against the Howard Rolling-Mill Company, Limited, upon a draft a copy of. which is as follows: “$1,479.38 New Haven, Conn., August 5, 1887. “ Four months after date, pay to the order of ourselves fourteen hundred and seventy-nine and thirty-eight one hundredth dollars, with current rate of exchange, the same to account of “ E. S. Wheeler & Co, “ To Howard Rolling-Mill Company, “ Limited, Howard, Pa.” Accepted across the face as follows: “ Accepted August 9, 1887; payable at the First National Bank, Lock Haven, Pa. “Howard Rolling-Mill Company, “ Per Bernard Lauth, Chairman.” An affidavit of defence having been filed, averring, inter alia, that the draft was not binding upon the defendant company because the acceptance was not signed by two of the managers thereof, the plaintiff, on February 13, 1888, moved to amend the record by striking out the name of the Howard Rolling-Mill Company, Limited, as the defendant in the action, and substituting that of Bernard Lauth. The motion was granted, and an amendment made accordingly. On October 24, 1888, the pleas, non-assumpsit and payment with leave, were entered by the prothonotary for the defendant Lauth. On July 16, 1888, the National Park Bank of New York brought assumpsit against Bernard Lauth upon two drafts, one for $1,522.30, and the other for $1,498.32, dated August 2, 1887, and August 9, 1887, respectively, drawn by E. S. Wheeler & Co. to the order of themselves, and so indorsed,, and accepted on the face thereof in the same form as the draft in the suit before mentioned. The defendant’s plea, in this case, was non-assumpsit. The two cases were fried together on March 18, 1890, when the plaintiffs, under objection and exception,1 put in evidence the drafts in suit, following them with testimony to show that the plaintiffs were bona-fide holders for value. There was some evidence that E, S. Wheeler & Co. had made advances of money to the rolling-mill company, and had received notes therefor, and that these drafts were accepted, to take the place of said notes. The precise form and nature of the transaction were not clear upon the testimony. The defendant Lauth, being sworn as a witness on his own behalf, testified that in 1887 he was a memher of the Howard Rolling-Mill Company, Limited, was its chairman and one of the board of managers, though he had nothing to do with the actual management of the business ; that he signed the acceptances in question at the request of George Bancroft, who “ was the head man ” and “ attended to the whole business,” being the general superintendent of the works; that the witness did not know E. S. Wheeler & Co., and had never received any consideration for the drafts; that he “ was under the impression that they needed two signers, and signed as one of them.” The defendant testified further, under objection and exception, as follows: “ Q. When you were on the stand before, you were starting to state what Mr. Bancroft said to you about accepting this draft, about your signing it; now state what was said ? A. He told me that this note would be protested the next day if he didn’t accept it, and that we were a new company and it would hurt us if our note went to protest. I think I signed it at the bottom; I see I signed it across the draft, but I thought he was to go and sign his name also. Q. Was there anything said about the absence of your son John ? A. He said that John was away and he had to get me to-day to sign it, because there had to be two on it. And, of course, I signed it with the understanding that he was to sign it too.” The articles of association of the Howard Rolling-Mill Company, Limited, were put in evidence. From them it appeared that said company was regularly organized as a limited partnership association under the act of June 2, 1874, P. L. 271, and its supplements. The defendant offered to prove by a witness on the stand that the Howard Rolling-Mill Company, Limited, had been in the habit of executing the notes of the company, in the transaction of their business, by the chairman alone, by the vice-chairman alone, and also by the treasurer of the company; and as evidence of said facts proposed to offer sundry notes, so executed by said respective officers, for the purpose of showing that the chairman, Bernard Lauth, had authority to sign the acceptances in suit so as to bind the company, and that he incurred no individual liability by so accepting. Offer objected to by plaintiffs. By the court: Objection sustained; exception.2 The testimony being closed, the court, Krebs, P. J., charged the jury in part as follows: The fifth section of the act of June 2, 1874, is in this language : “ There shall be at least one meeting of the members of the association in each year, at one of which there shall be elected not less than three, nor more than five managers of said association, one of whom shall be the chairman, one the treasurer, and one the secretary, or one may be both treasurer and secretary, who shall hold their respective offices for one year and until their successors are duly installed; and no debt shall be contracted or liability incurred for said association except by one or more of the said managers, and no liability for an amount exceeding five hundred dollars except against the person incurring it shall bind the association, unless reduced to writing and signed by at least two managers.” [Now, the plaintiff’s attorneys, representing the bank in this case, claim that because Mr. Lauth accepted these drafts which have come into the hands of the bank, himself, without any other manager accepting them with him, he made himself liable individually for the amount of these drafts. Now, gentlemen of the jury, that is a pure question of law, and not free from difficulty to my mind, but it is our duty to follow in the line, we think, that the Supreme Court has indicated in reference to this subject. We take it to be law that, at the time Mr. Lauth accepted these drafts, he having accepted them alone, without any other manager signing them with, him, he has made himself liable to pay those drafts. He, as a manager of that association, in order to avoid a general liability for the debts of that association, was required to see that all the provisions and regulations of that act of assembly were duly and reasonably complied with. If he did not so see that these regulations were complied with, whether he was manager or not, he would be individually liable for the debts of the association. When it makes a contract, that is, for which the association would be liable, this act is specific in its declarations that when an amount exceeds five hundred dollars the instrument of liability, or cause of liability, or purpose of liability, must be reduced to writing and signed by two of the managers; otherwise the act of assembly in its intent makes them individually responsible.]4 Now, there are two reasons for that, as we take it. The first is, that the business of the association shall be conducted in an orderly way; that the members of the association, who may not be managers, may be protected from the carelessness or bad management of any one member of the association; and, as a guaranty of the act of the association, that it has entered into it in good faith for the benefit of the association, or the members of the association, at least two of the managers shall agree that it is a proper act for the association to engage in, and thus fix the liability of the association so as to bind the association itself and the association’s property. Mr. Lauth, being a member of this association and a manager of it, was bound to know what the provisions of this act of assembly were. He could not escape by alleging that he did not know, because he must avail himself, in the management of that business, of the provisions of the act of assembly, or else be liable as a general partner. The second reason is, that if -there is a manager of the association who incurs a liability which is not incurred according to the provisions of this fifth section of this act of assembly, to an amount which exceeds five hundred dollars, in order that the persons to whom that debt is due may not be defeated from recovering that with which he may have parted to one supposed to have authority, except on a promise to pay, because that might be a fraud upon that person, so that if the association was not liable he would have a remedy against the individual who accepted the drafts, therefore it was the duty of Mr. Lauth to see that the association was made properly liable, otherwise he is made liable by this act of assembly in his individual capacity. We have been asked by defendant’s counsel to instruct you on two points: 1. If the jury find from the evidence in the cause that the drafts in suit were drawn upon the Howard Rolling-Mill Company, Limited, and accepted by the Howard Rolling-Mill Company, Limited, per Bernard Lauth, chairman, and that the chairman had authority of said company, by usage Or by the consent of a majority of the managers, express or implied, to accept the drafts, then the acceptance would bind the company and does not bind Bernard Lauth individually, and the verdict should be for the defendant. Answer: The acceptance of these drafts in the language by the Howard Rolling-Mill Company, Limited, per Bernard Lauth, chairman, would not in my judgment, of itself make Mr. Lauth liable; but, it appearing that the amounts of the drafts exceed five hundred dollars, and that no other manager of the association has accepted them but him, we are constrained to refuse this point.5 2. That the drafts in suit having been drawn upon the Howard Rolling-Mill Company, Limited, and accepted in the name of the company, per Bernard Lauth, chairman, the principal being fully set forth in the drafts, and they showing clearly on their faces that in the acceptance thereof, per Bernard Lauth, chairman, said Bernard Lauth, chairman, acted as the mere scribe in accepting the drafts, they import no personal liability on his part, and he cannot be held individually liable thereon, and the verdict should be- for the defendant. Answer: For the reasons already given in answer to the first point and our general charge, we are obliged to say we must decline this point.6 3. That, under the evidence and pleadings in this case, the verdict must be for the defendant. Answer: We decline to answer this point in the affirmative.7 Now, gentlemen of the jury, that leaves only the question of how much these drafts are, with the interest added. There seems to be no dispute of fact in this case. Counsel for plaintiffs have presented a statement of the amounts of these drafts, which will be handed to you; and if you find the calculation correct, and the other fact that these banks are bona-fide holders for value, then, under the law, your verdict would be for the plaintiffs for those amounts..... —The jury returned verdicts in favor of the plaintiffs for $1,686.09 and $3,441.87, respectively. Rules for new trials having been discharged, judgments were entered on the verdicts on January 23, 1891; whereupon, the defendant took these appeals assigning for error inter alia: 1. The admission of plaintiffs’ offer.1 2. The refusal of defendant’s offer.2 4. The part of the charge embraced in [ ] 4 5-7. The answers to defendant’s points.5 to 7
143 Pa. 64Commonwealth v. McManus (1891)
No. 119 July Term 1890, Sup. Ct.; court below. No. 110 March Term 1890, O. & T. On March 6, 1890, the grand jury returned as a true bill ail indictment charging John McManus with the murder of Eugene McGinnis, on February 21, 1890; certified. On March 7th, the prisoner, being arraigned, pleaded not guilty. Issue.
143 Pa. 98Hill v. Pardee (1891)
No. 165 July Term 1890, Sup. Ct.; court below, No. 85 October Term 1885, C. P. On June 9, 1885, S. W. Hill and T. J. Hill, with notice that the plaintiffs would claim damages up to the time of trial, brought trespass on the case against A. Pardee & Co. and the Lehigh Valley Railroad Company, filing a narr averring plaintiffs’ ownership of a certain messuage and premises in the borough of Hazleton, whereon was erected a frame grist-mill, owned by and in the possession of the…
143 Pa. 104Shaw v. Fleming (1891)
No. 321 January Term 1890, Sup. Ct.; court below, No. 351 September Term 1887, C. P. No. 1. On October 15, 1887, James B. Shaw and O. L. Broadbent, trading as Richard Kershaw & Co., brought assumpsit against George M. Fleming, filing a statement of claim to recover for merchandise sold and delivered.
143 Pa. 114Summers v. Bergner Brewing Co. (1891)
No. 414 January Term 1890, Sup. Ct.; court below, No. 768 December Term 1885, C. P. On March 1, 1886, May Summers, by her father and next friend, M. P. Summers, brought case against, the Bergner & En-gel Brewing Company. Issue. At the trial on February 26, 1890, Dr. A. W. Griffith, a practising physician, testified for the plaintiff that on July 28, 1885, he was walking up Tenth street below Washington Avenue, and, hearing a child scream, turned and saw the child between the fore legs of one of the horses drawing a beer wagon. The team was following the street-railway track on a descending grade, and was moving at a fast trot. The driver was sitting with his hands in his lap and his head down, the witness being of the opinion he was asleep, “and in no condition to drive in a dangerous place.” The witness shouted to the driver, and rushed to get the child, which was being turned about by the fore legs of the horse. As the driver checked up the horses, the witness reached for the child, when the latter received a blow from the horse’s hind foot and was thrown before the front wheel of the wagon. The wheel, running along the railway track, struck the child’s head just under the ear, and would have crushed it had not the witness snatched it away. It was shown, further, that the driver’s name was John Dillenz, and that he was driving the team in the employment of the defendant company; that the child was the plaintiff, and when taken home was found to be bruised at the hip, in the stomach, and to be bleeding from the left ear; that she was confined to bed for about two weeks, was then taken to Atlantic City, and on her return after an absence of some weeks, went about as usual, but seemed to be nervous ; that in about eighteen months after the injury, it was found that the sight of the child’s right eye was defective, and in February, 1889, she was put under the care of an oculist. The oculist, Dr. Randall, testified that there was atrophy of the optic nerve of the right eye, and that the sight was substantially lost. Upon statements made to him by the parents of the child as to the facts of the injury, and in response to a hypothetical question including as a fact the statement of a fracture of the skull, the oculist expressed his opinion that the injuries received in the accident would account for the defective condition of the eye. Other expert witnesses, as well as Dr. Randall, testified to the opinion that the defective eyesight was not congenital. There was no testimony tending to show that there was a fracture of the child’s skull. The driver of the wagon testified for the defendant that he was going down Tenth street slowly and was not asleep; that he saw the child with other children playing on the right-hand side of the street, and they ran across to the left-hand side, when he pulled up and hallooed to them; that the plaintiff started to run, and in an effort to pick up something she had dropped, or stopping for some other purpose, she got under the feet of the horse and was thus injured. The defendant’s counsel offered in evidence the exemplification of the record from the Court of Quarter Sessions, in the case of Commonwealth v. John Dillenz, “to show that at that time there was no contention on the part of Mr. Summers that this driver was asleep, and that he prosecuted him for assault and battery on this child.” Objected to. By the court: Offer refused; exception.1 At the close of the testimony, the court, Pennypacker, J., after briefly reviewing the facts, charged the jury in part as follows: [If you find that there was negligence in the way the driver was conducting the wagon at this time, and that this negligence resulted in the injuries which the child suffered, your verdict should be for the plaintiff.] 2 In behalf of the defendant, the driver himself, Mr. Dillenz, is produced. There was some confusion about the account which was given by the driver, and it may be that it was more or less affected by his imperfect knowledge of the language. What he said, substantially as I understand it, was, that he was going down Tenth street slowly; that he was not asleep; that he saw the child "with other children playing upon the right-hand side of the street; that they ran across onto the left-hand side; that he pulled up and he hallooed to them; that he pulled up his horses and came to a stop; that this little girl started to run to the other side of the street, and in an effort to pick up something that she had dropped, or for some other purpose, got under the feet of the horse and was injured. If there was no negligence on the part of the driver, or if there was negligence, and these injuries were caused solely and only because of the fact that the child herself ran under the horse’s feet, the verdict should be for the defendant. If you should find in favor of the plaintiff, you will then approach the question of the measure of damages..... It is also alleged here that there was a permanent injury to the child. If there was such a permanent injury resulting from the accident which occurred through the negligence of the defendant, she is entitled to recover for the loss of earning power resulting from that injury. The permanent injury which is alleged is the loss of the sight of her right eye. There was some reference in the testimony to injuries in her stomach, but I do not understand that they were pressed very strongly, or that the evidence is very clear, but that is a question for you. It is asserted that because of these injuries the child has lost the use of her right eye. Dr. Randall, an expert oculist, who made two examinations of the child, has testified that there is atrophy of the optic nerve of the right eye, and that the sight is substantially lost. In response to the hypothetical question which was put to him, his answer substantially was, that the injuries received in this accident could account for this loss of sight. It is my duty to call your attention to the fact that when this hypothetical question was put, there was included in it, as a fact presented to him, the statement of a fracture of the skull, and, based upon the facts presented, he gave that testimony. I recall nothing in the evidence to show that the child’s skull was fractured. Dr. Schweinitz says that the injuries were the most likely cause of the loss of sight, and Dr. Jackson, a witness produced by the defendant, who had not examined the child, but who had heard the testimony as to her injuries and the condition as given by Dr. Randall, says that the loss of sight may have been caused by a disease, from over-use of the eye, from studying in an improper light, or, it might have been congenital or from some fault; it might arise suddenly, or from a local injury; and he went on to testify that in the latter event it would not be likely to develop for several months. I understood Dr. Randall to say that this injury to the eye might develop slowly, after the expiration of some months, and that as to whether it would develop after years, was an uncertain question. [Now, you have heard this testimony, and the testimony of the parents of the child, as to when they first noticed this apparent injury to the eye, and my recollection is, that they fixed it at about a year, or a year and a half. If this permanent injury was the result of the accident, and you find in favor of plaintiff on the question of negligence, it would be your duty to ascertain what was the loss of earning power to the child, because of the injury. It is not, as has been suggested to you by counsel for the plaintiff, what you would be willing to sell your eyes for, or one of your eyes for. That is a bargain which no roan in his senses would be willing to make. But it is your duty to carefully and thoughtfully estimate what would be the loss of the earning power because of this hr jury, and to give a verdict for that, and for that alone, in addition to compensation for the pain and suffering to which I have called your attention.] 3 I am asked on the part of the defendant to charge you upon these points: 1. The foundation of plaintiff’s case is the negligence and improper conduct of defendant’s driver.. Therefore, unless the evidence. shows that the driver did something he ought not to have done, or omitted something he ought to have done, and this act or omission caused the accident, your verdict should be for the defendant. Answer: I affirm that point. 2. The mere fact that the accident happened is no evidence of negligence on the part of defendant. The plaintiff must prove the particular act of commission or omission on the part of this driver, which caused the accident, and if this has not been done, the verdict should be for defendant. AnswerI affirm that point. 3. No person, in driving through the street, is bound to -anticipate that a person, either child or adult, may suddenly run in front of or under his horses, and get injured; and if any injury does happen under such circumstances, the driver would not be negligent, and there could be no recovery against him, or his employer. Answer: I decline that point.4 4. If this child ran suddenly right in front of the horses of the defendant, either to pick up something she had dropped, or for any other childish reason, and that act of hers was the real and sole cause of the accident, the plaintiff cannot recover, and the verdict should be for defendant. Answer: I affirm that point. Ordinarily, if there is negligence on the part of both plaintiff and defendant, which unite in causing the accident, the plaintiff cannot recover, because if there he any contributory negligence, it deprives him of that right. In this case, the child being about four years of age, there can be no contributory negligence. 5. There being no evidence in the case that the accident was the direct result of any negligence on the part of the defendant’s driver, therefore, under all the evidence the verdict must be for defendant. Answer: 1 decline that point.5 —The jury returned a verdict for the plaintiff for 17,500. Upon the plaintiff filing a remittitur for all the verdict over 15,000, a rule for a new trial was discharged and judgment entered on March 26, 1890, for the sum last mentioned; whereupon the defendant took this appeal, assigning for error: 1. The refusal of the defendant’s offer.1 2, 3. The portions of the charge embraced in [ ] 2 3 4, 5. The refusal of the defendant’s points.4 5
143 Pa. 122Fearn v. West Jersey Ferry Co. (1891)
No. 243 January Term 1890, Sup. Ct.; court below, No. 699 December Term 1887, C. P. No. 1. On January 13, 1888, John Fearn brought trespass against the West Jersey Ferry Company, to recover damages for injuries charged to the negligence of defendant company. The plaintiff: died on July 4,1888, and on August 9th, Amelia Ann Fearn, his widow and administratrix, was substituted. Issue. At the trial, on April 5, 1889, the plaintiff introduced testimony to the effect that on February 10, 1883, the plaintiff, John Fearn, and his wife, Amelia Ann Fearn, were on their way from Washington City to New York, and about nine o’clock p. M. went from the Broad-Street railroad-station to the defendant company’s ferry at the foot of Market street, Philadelphia, to take the boat to Camden, N. J., tied up at the slip. It was then snowing. The snow had been swept off the boardwalk, in front of the ferry house, when the plaintiff and his wife were admitted to the boat, but the passage-way on the deck leading to the ladies’ cabin was covered with snow to the depth of from one quarter to one half an inch, and the floor was slippery underneath. On their way to the ladies’ cabin, the plaintiff preceding his wife and carrying a “ cabas ”* and a galvanic battery, both fell and were injured. The plaintiff fell upon his stomach across a cleat fastened to the floor near the deck railing. The condition of the deck at the time of the injury, as shown by the testimony of the administratrix and her son, is fully stated in the opinion of the Supreme Court. For his injuries thus received, the plaintiff was under treatment until the time of his death on July 4, 1888. On June 1, 1883, suit was brought in the Court of Common Pleas No. 3 by the husband and wife, in right of the wife, against the defendant company, to recover damages for the injuries the wife received at the same time the husband was injured. That cause was afterwards transferred to and tried in the Circuit Court of the United States for the Eastern District of Pennsylvania. Plaintiff offered in evidence “ the deposition of John Fearn, the plaintiff in this case, taken in the suit, John Fearn and Amelia Ann Fearn, his wife, to the use of said Amelia Ann Fearn v. West Jersey Ferry Company, (No. 87 October Term 1883, Circuit Court United States, Eastern District of Pennsylvania, removed by defendant from Common Pleas No. 3, Philadelphia, No. 299 June Term 1883), brought to recover for the injuries to the wife received on the same occasion and at the same time ; before Henry J. Smith, Esq., Notary Public, on the twenty-ninth of September, 1884, under rule, etc. (Richard C. Dale, Esq., being present representing defendant and cross-examining), and filed therein; to show the condition of the boat, the state of the weather and the circumstances of the accident.” To which offer, the counsel for the defendant objected, the said deposition appearing to have been taken in a proceeding in another court, between different parties, and under a different issue. By the court: Objection sustained, offer refused; exception.1 The plaintiff then rested, when, on motion of defendant’s counsel, the court, Biddle, J., entered a judgment of nonsuit, with leave, etc. A rule to_ show cause why the judgment should not be taken off having been argued before the court in banc, the rule was discharged; exception.2 Whereupon, the plaintiff took this appeal, assigning for error: 1. The refusal of the plaintiff’s offer.1 2. The order discharging the- rule to show cause.2
143 Pa. 129Shackamaxon Bank v. Yard (1891)
No. 178 July Term 1890, Sup. Ct.; court below, No. 703 December Term 1885, C. P. No. 2. To the number and term of the court below, above stated, the Shackamaxon Bank, to the use of Joseph Ferguson and W. E. Swire, assignees for creditors of said bank, brought debt against “Benjamin Yard and Mary E. Yard, his wife, executrix of Charles S. Murphy, deceased, ” declaring on a bond of said Murphy as the surety of Thos. L. Huggard, the cashier of said bank, averring breaches. The defendant executrix pleaded non est factum, nil debet, payment with leave, plene administravit. At the trial, on January 14, 1890, it was made to appear that on February 17, 1873, Thomas L. Huggard was elected by the board of directors the cashier of the Shackamaxon Bank and Savings Fund (afterwards the Shackamaxon Bank), a state bank subject to the provisions of the act regulating banks of April 16, 1850, P. L. 477, and of § 15, act of March 29, 1851, P. L. 295, relating to the election of cashiers and solicitors of banks in Philadelphia county.† On the same day William Bumm was elected by said board president of the bank. That, on May 1, 1873, said Thomas L. Huggard and said Charles S. Murphy, defendant’s decedent, executed a bond under seal to the said bank, in the sum of five thousand dollars, reciting and conditioned as follows: “ Whereas, the above-named Thomas L. Huggard has been duly elected cashier of the Shackamaxon Bank and Saving Fund: “ Now, the condition of this obligation is such that if' the said Thomas L. Huggard shall, for and during the time of his employment by the said bank, whether under his present election or under any subsequent election to the said position, or whether under its present organization or charter, or under any renewals or extension thereof, discharge and fulfil with integrity and fidelity the trust thereby reposed in him, and faithfully and honestly execute the duties that may be assigned to him, then the above obligation to be void, or else to be and remain in full force and virtue.” That there was no record evidence that said Huggard was ever re-elected as cashier, although he continued to act as such until the insolvency and assignment of the bank in 1885. The president of the board of directors was re-elected annually. That Charles S. Murphy died on June 8, 1876, and about ten days thereafter letters testamentary upon his estate were granted to Mrs. Mary E. Yard. Notice thereof being given to the bank, the account of the said Murphy was transferred to his said executrix. That no default occurred on the part of Huggard, the cashier, until more than one year after the death of said Murphy, the surety, was known to the bank; but thereafter and until the bank’s assignment extensive defaults were shown in breach of the said bond if still in force. At the close of the testimony, the court, Hare, P. J., gave instructions to the jury and added: I will reserve the third, fourth, and fifth points submitted by counsel for defendants, it being agreed by counsel for both parties that if I should have affirmed any or all these points, judgment for the defendants non obstante veredicto shall be entered by the court in banc. These points are as follows:* 3. The bond in suit not having been taken in the name of the commonwealth, as required by the act of April 16, 1850, the verdict'must be for the defendants. 4. The bond in suit not having been approved by the court and recorded, as required by the act of April 16, 1850, the verdict must be for the defendants. 5. The act of March 29, 1851, requiring that the cashier shall be elected annually, and the default in this case having occurred more than a year after the death of the surety was known to the bank, the verdict must be for the defendants. —The jury returned a verdict for the plaintiff for $5,000. On April 25, 1890, a motion for judgment for the defendants, non obstante veredicto, on the points reserved, having been argued before the court in banc, an opinion was filed as follows, Hare, P. J.: Thomas L. Huggard was elected cashier of the Shackamaxon Bank in the month of February, 1873, and soon afterwards united with the defendant’s testator, Murphy, in giving a bond as security for the faithful performance of his office. The condition was that if the said “ Thomas L. Huggard shall, for and during the time of his employment by the said bank, whether under his present election or under any subsequent election to the said position, or whether under its present organization, or charter, or under any renewals or extension thereof, discharge and fulfil with integrity and fidelity the trust thereby reposed in him, and faithfully and honestly execute the duties that may be assigned him, then the above obligation to be void, or else to be and remain in full force and virtue.” The act of March 29, 1851, provides that the cashiers and solicitors of the several banks in the county of Philadelphia shall be elected annually by the directors in the same manner as the presidents thereof are now elected. This provision, which in requiring an annual re-election impliedly limits the cashier’s term to one year, was disregarded, and Huggard suffered to continue in office for more than twelve years without a re-election. During this long period, the president was guilty of many fraudulent acts in which the cashier participated, resulting in a loss to the bank of nearly $200,000. The surety, Murphy, died before these offences were committed, and the suit was brought against the executrix, Mrs. Yard. The directors were negligent in another particular; for, while the act of April 16, 1850, makes it their duty to require the cashier, tellers, and other officers of the bank, to enter into a bond to the commonwealth of Pennsylvania, the bond in suit was taken in the name of the bank, thus frustrating the object of the statute, which is to enable “ any person aggrieved by the default of the obligors,” to obtain redress without waiting for the assent of the president and directors. The trial judge was requested, inter alia, to instruct the jury: 8. The bond in suit not having been taken in the name of the commonwealth, as required by the act of April 16, 1850, the verdict must be for the defendants. 4. The bond in suit not having been approved by the court and recorded, as required by the act of assembly of April 16, 1850, the verdict must be for the defendants. 5. The act of March 29, 1851, requiring that the cashier shall be elected annually, and the default in this case having occurred more than a year after the death of the surety was known to the bank, the verdict must be for the defendants. These points were reserved under an agreement signed by counsel, that if the court in banc should be of opinion with the defendant on any or all of them, judgment should be entered in his favor. They may now be considered in the order in which they stand of record. Justice would seem to demand that when security is given for the faithful performance of an office under a legislative enactment to that effect, the statute shall be construed in view of its object, which is to protect tire citizen, and that the instrument shall not be held void simply because it is not worded as the act prescribes. Such a course of decision would sacrifice the letter to the spirit, and enable the parties to use their negligent or wilful failure to comply with the directions of the statute, as a means of evading the obligation which the legislature intended to impose. It has, notwithstanding, been held that bonds given for the performance of a public office in pursuance of a legislative fiat, must not impose an obligation differing in kind, or that will inflict a' greater burden, and if this principle be disregarded the instrument will be invalid. It is not an answer that the obligor saw fit to incur a different liability and must abide by his choice. For, as he cannot enjoy his office without giving security, he is not entirely a free agent and should not be required to do more or other than the act enjoins. The object nevertheless, is to protect the obligor, and the rule does not apply unless he is prejudiced. As Chief Justice Gibson observed in Commonwealth v. Laub, 1 W. & S. 261, 263, “ A variance between a statutory bond and the requisitions of the law is fatal to it, only when the condition would impose a greater burden than the law allows. An alteration lessening the liability is not a defence.” So considered, there is no valid objection to the instrument in suit. The condition is substantially what the law requires; and if the failure to take the bond in the name of the commonwealth might prejudice the creditors of the bank, or be a ground of recovery against the directors, it does not alter the position of the principal or surety for the worse: Shunk v. Miller, 5 Pa. 250; McCaraher v. Commonwealth, 5 W. & S. 21; Power v. Graydon, 53 Pa. 198. The point is not less clearly with the plaintiff in another aspect. It may be that where a public office is held under the statutory or common law, and there would be no power to exact a bond did not the legislature so provide, the act must be followed, or at least not so departed from as to injure the obligors, although the case of Commonwealth v. Wolbert, 6 Binn. 292, looks the other way; but if such is the rule it does not apply to an appointment made by a private corporation, which would be entitled to demand security from its officers at common law. Under these circumstances, the statute simply regulates an existing power; and while a failure to comply with its requirements may render the parties in default answerable, it will not discharge the officer or his sureties, unless the object is not only to indicate a particular form, but to prohibit every other: United States v. Bradley, 10 Pet. 343, 364; United States v. Linn, 15 Idem 290, 317. No one denies that the directors might have taken the bond in suit, although the act of March 29, 1851, had not been passed; and it should not be so construed as to discharge the persons whom the legislature intended to bind, and prejudice the persons whom they sought to protect. It cannot be said that the cashier, or the surety who came forward in his behalf, was under any compulsion that could render the bond involuntary, because his right depended on the votes of the directors who might impose any conditions calculated to protect the bank: Bank of Northern Lib. v. Cresson, 12 S. & R. 314; Greenfield v. Yeates, 2 R. 158. It is not easy to find a solid ground for the support of the defendant’s second contention, that the surety’s death invalidated the bond as soon as it became known to the directors. His intention to contract an enduring obligation is as plain as that he took the appropriate means to make it effectual. The instrument is the most formal known to the law. The obligors not only bound themselves, but their executors and administrators ; and these terms signify, when turned into ordinary speech, that the surety would not only be answerable while he lived, but that his estate should make good defaults occurring after his death. What Murphy intended is therefore plain, and it cannot be said that power was wanting. It is not denied that a man may, by an instrument executed in his lifetime, provide for the disposition of his property after he has gone. He may devise the whole or any part of it to a charitable use, or bestow it on an entire stranger, to the exclusion of his children or next of kin. It would be strange if a gift were more binding than a contract. The right to bind a man’s personal estate by a bond is accordingly as old as his right to bequeath by a will, and, under our laws, real property is on the same footing as personal. There is certainly nothing in the object for which the bond in suit was given, to take it out of the rule. The demand for security was not only a common-law right, but a duty enjoined by statute, and the surety’s death is not a justification for the refusal of the executrix to fulfil the contract as far as the funds in her hands will go. Yet the defendant contends that the board should, on learning of Murphy’s death, have required Huggard to give another bond, with a sufficient surety, and on his failure to comply, have dismissed him and appointed some one who was willing and able to fulfil the condition so imposed. Until this, which might take weeks or months, was accomplished, the bank would remain unsecured, and the creditors would have no redress in the event of the cashier’s failure. Such an interpretation is at variance with the requirements of trade and the language of the act of assembly. Business would be insecure if the contracts of solvent debtors could not be enforced against their estates, and the legislature obviously intended that the depositors and stockholders should be safe. It is not just that the death of a person who has guaranteed the good behavior of a confidential agent should leave the employer unsecured, nor that the employer should be obliged to dismiss the agent, and look for some one else to fill his place, at the risk of the delay and inconvenience which may result from such a change. While a guaranty will not be carried beyond its terms, it should still be read in the sense in which the words would naturally be understood by the person to whom they are addressed, and no condition introduced which is not set forth in terms or plainly implied: Douglass v. Reynolds, 7 Pet. 113; Lawrence v. McCalmont, 2 How. 426, 450; Gates v. McKee, 3 Kern. 232 [64 Am. Dec. 545]. The authorities cited during the argument show that a promise to be answerable for another’s default will not fail on the death of the promisor, unless it is so far incomplete that it might have been retracted in his lifetime. But it is also true that to render a parol guaranty of a contract between third persons irrevocable, some promise must have been made or act done on either side that will make the contract obligatory on both, for if the parties are not held together the guarantor will be equally at large. A promise that such loans as A may think fit to make B during the ensuing year, or any other definite period, shall be repaid, may consequently be retracted before the money is advanced, or after the advances which have been made are refunded, although the year has not expired; and where the testator is entitled to give such a notice, it will not be less valid because coming from his executors: Offord v. Davies, 12 C. B., N. S., 748. The revocation must, notwithstanding, be communicated to the person who is to make the advance, and if he is left in ignorance it is immaterial that the guarantor has changed his mind, or even that he mailed a letter which did not reach the lender until he had parted with the money. It has, notwithstanding, been contended, that when nothing has been done and no engagement entered into on the faith of the guaranty, it will fail immediately on the death of the guarantor, even if this is unknown to the person whom the instrument purports to secure, and he discounts bills or sells and delivers goods in the belief that the guaranty is still in force. In Jordan v. Roberts, 122 Mass. 171, the court decided that a covenant to be answerable for such goods as a third person may buy, does not render the guarantor’s estate answerable for purchases made after his death, because, until the goods are sold there is no consideration, and, as the contract is not mutual during the guarantor’s life, it cannot be rendered obligatory by anything that is done subsequently. An opposite conclusion was reached in Bradbury v. Morgan, 1 H. & C. 249, on the ground that a person who acts in reliance on a promise, without knowing that the person who gave it is deceased, should be compensated for any resulting loss. The American cases which decide that the principal’s death does not invalidate the contracts of the agent, unless it is known to the persons with whom the latter deals, may stand on this ground against the technical view of the English courts, and cannot well be referred to any other. See Cassiday v. McKenzie, 4 W. & S. 282; Ish v. Crane, 8 Ohio 522; Smart v. Sanders, 5 C. B. 895; Campanari v. Woodburn, 15 C. B. 400. Whatever may be thought of the doctrine of Jordan v. Roberts, as contrasted with that held in Bradbury v. Morgan, it does not apply to guaranties of contracts that have become mutual through performance, nor where, as in the present instance, all that the guarantor stipulates for is performed in his lifetime!. In Offord v. Davies the goods were sold after the guarantor’s death, and there is no decision that where an agent is employed during the life of the person who has guaranteed his fidelity, the guarantor’s undertaking will fail or become revocable when ho dies. In Calvert v. Gordon, 7 B. & C. 809, 2 Sim. 253, 4 Russ. 581, the bond was conditioned for the fidelity of a collecting clerk. The obligor died, and his executrix gave notice that she would no longer be responsible for the clerk’s good conduct, and that if the plaintiffs continued to employ him it would be at their own risk. He remained in their service, and it was not only held that they could recover at law for a subsequent failure on his part to account, but a bill in equity filed by the executrix was dismissed by the lower court, and on appeal. The judgment in Loyd v. Harper, 16 Ch. Div. 209, 313, is to the same effect. These cases seem to be conclusive; and, so far as I am aware, there is no decision that a man who employs an agent on the faith of an undertaking by a third person, will lose the benefit of the guaranty on the surety’s death. The case of Harris v. Fawcett, 8 Ch. App. 866, cited by the defendants, does not seem to be in point. The guaranty in suit was so worded as to be revocable on six months’ notice, and as it had been given for the executor’s benefit, and he was equitably bound to exercise the power of revocation, the court held that what ought to have been done should be considered as done, and as the creditors were cognizant of the equity they could not recover. The point would also seem to be' with the plaintiff, on the ground that a bond is not less irrevocable because it is given as an inducement to an act which is not performed until a future day. It was, indeed, decided in Jordan v. Roberts, above cited, that an undertaking under seal to be answerable for such sales as the plaintiffs might make to a third person before the guarantor gave notice to the contrary, became inoperative at his death. The court said that death terminates the power of the deceased to act, and revokes any authority or license which has not been executed or acted upon. His estate may be held under any contract upon which a liability existed during his life, although depending upon future contingencies ; but it cannot be held for a liability arising after his death through the exercise of a power or an authority which he might have revoked. The provision that the guaranty should continue until written notice was given by the guarantor, might affect the mode in which he could exercise the right to revoke the guaranty, but did not render the instrument less revocable by his death, and the nature and construction of the writing were'not changed by the fact that it was under seal. In the opinion of the court, a covenant that if the covenantee will do a certain' thing within a given time he shall be remunerated, is not binding unless performance occurs during the covenantor’s life, although the covenantee complies before the time expires, in ignorance of the covenantor’s death. This conclusion would seem to be at variance both with the civil and common law. It implies that a contract, however formally made, cannot be rendered obligatory by the agreement of one party to give and of the other to receive. A parol promise is not binding unless the promisor stipulates for an equivalent, or in other words, for a consideration; and it may be that the condition must be fulfilled during his life in order to bind his executor. But it is equally well settled that contracts in writing and under seal become obligatory immediately on execution and delivery, by affording conclusive proof that the minds of both parties met in a common purpose which one of them agreed to fulfil: Rann v. Hughes, 7 Term R. 350; Schoonmaker v. Roosa, 17 Johns. 301, 303; Candor’s App., 27 Pa. 119, 121; Dorr v. Munsell, 2 Mass. 259; Page v. Trufant, 65 N. C. 454; United States v. Linn, 15 Pet. 290, 317. The want of a consideration is not, therefore, an objection to a bond or covenant, although the failure of the cause or consideration may operate as an equitable defence: Fallowes v. Taylor, 7 Term R. 471; Yard v. Patton, 13 Pa. 278, 285; Bunn v. Winthrop, 1 Johns. Ch. 329, 337. As Lewis, C. J., observed in Candor’s App., “In this respect a simple contract differs from a specialty. In the one case, the party is not bound without a consideration. In the other, no consideration is necessary if none was contracted for.” If the authorities are not more numerous, it is because until recently the rule was regarded as indisputable. It has sometimes been contended that a man should not be allowed to break a written promise simply because the opposite party has not done or promised anything in return, but never, so far as I am aware, that a consideration is necessary to the obligation of an undertaking under seal. See Pillans v. Van Mierop, 3 Burr. 1663; Rann v. Hughes, 7 Term R. 346. Had the guaranty in Jordan v. Roberts been for a valuable consideration moving from the party to whom or for whose benefit it was given, it would confessedly have bound the guarantor in his lifetime, and consequently his executors. As has often been said, a “ seal imports a consideration: ” United States v. Linn, 15 Pet. 290, 317; or, more accurately, a consideration became, in tbe course of centuries, after much debate, equivalent in many respects to a seal. We may therefore infer that a covenant to be answerable for such goods as the covenantee may sell to a third person, before he is notified to desist, does not resemble a naked power, and is, on the contrary, as irrevocable as a bond or covenant for the payment of money on the happening of any other future or contingent event. The contingency does not touch the existence of the obligation, and is simply, will the thing for which the obligor stipulated be fulfilled? Here the common law, except in requiring a seal, follows the civil law, in holding that a promise to be answerable if the promisee will do a certain act, is irrevocable as soon as he signifies his assent, although subject to a condition which suspends the obligation until the act is done: Maynz, vol. 1, § 6, p. 469; vol. 2, § 205, p. 178; Pothier, Traite des Obligations, Part. 11, Ch. III, article 1, §§ 1, 3. The remaining question affords ample room for argument. It is conceded that the obligation would not have endured beyond the current year without a stipulation to that effect; but the plaintiff contends that, inasmuch as the bond is conditioned for the cashier’s “ good behavior for and during the term of his employment by the said bank, whether under his present election or any subsequent election to the said position,” effect should be given to the plainly expressed intent that the surety’s liability should endure so long as the principal remained in the service of the bank. There was no second election, but the cashier must be presumed to have held over with the assent of the directors, and it was immaterial that their approval was tacit without a formal vote. The argument has much weight, but does not cover the entire ground. In many respects it matters not whether the cashier is re-elected or suffered to remain in office. His responsibility to the bank is the same, and it is equally bound by his acts. It does not, however, follow that his fitness will be as carefully considered at the close of each succeeding year, where he holds over by sufferance, as if the question were brought before the board. The point would appear to me doubtful, were it not for the language of the act of assembly. The legislature there provided for an annual election, and, even if the clause is merely directory, the surety was entitled to suppose that it would be obeyed. The phrase “ under the present election, or under any subsequent election,” should consequently be taken as restricting, rather than enlarging the preceding clause, “ as long as he shall remain in the service of said bank.” If this stood alone there could be no doubt of the surety’s liability; but the qualifying words should not be stretched beyond their literal meaning, or read as implying a holding over without a deliberate vote. Here the distinction between the principal and the surety is marked, because the former is precluded from raising an objection which he waived at the time, while the latter derives no benefit from the consideration, and may insist on the letter of the bond. Judgment is entered for the defendants on the third point above enumerated. —Thereupon, the plaintiff took this appeal, specifying that the court erred in entering judgment for the defendants, and in not entering judgment for the plaintiff, on the points reserved.
143 Pa. 150Estate of Williamson (1891)
No. 198 July Term 1890, Sup. Ct.; court below, No. 484 March (?) Term 1890, O. C. On March 31, 1890, D. B. Cummins, surviving executor of the will of Isaiah Y. Williamson, deceased, filed his first account, wherein he charged himself with principal amounting to $10,380,654.86, taking credit for disbursements out of the same amounting to $1,574,552.60, on account of debts, expenses of administration and settlement, collateral inheritance taxes and legacies. He charged himself, also, with income realized upon the estate between the death of the testator and the filing of the. account amounting to $489,649.97, against which he took credit for disbursements aggregating $32,193.24, leaving a net balance of income amounting to $457,456.73. The said account having been called for audit on April 7, 1890, it was shown that Isaiah Y. Williamson died on March 7, 1889, leaving a will dated April 18, 1874, duly admitted to probate on March 11, 1889. After bequeathing a number of legacies to collateral relatives and charities, some of them being given in trust for the benefit of the legatees, said will provided, further, in part as follows: 14. “ The rest, residue, and remainder of my estate, real, personal and mixed, wherever situated, vested, contingent or future, after satisfying the foregoing bequests, as such remainder shall be realized and converted into proper securities by my executors, as provided in item Seventeenth of this will, shall be by them transferred and delivered to the Pennsylvania Company for Insurances on Lives and Granting Annuities, of this city, which company shall hold the same as a trustee and in special trust as follows: that is, to keep the same invested in productive securities in manner provided in items Sixteenth and Seventeenth, and after deducting the proper charges and expenses incident to the management of said investments and securities, to add the interest and income thereof to the capital, and thus accumulate and increase the fund until the expiration of ten years after my decease, at which time it shall be divided amongst such of my grand-nephews and grand-nieces, who shall then be living, as are the issue of my brothers and sisters named in the second item of this will, which fund shall then be distributed to each one, per capita and not per stirpes, an equal share thereof: Provided however such shares shall not be paid until each person thus ascertained shall attain the age of twenty-one years, excepting however from this proviso the shares of all who would not attain the age of twenty-one within twenty-one years after my decease; aud I direct that this fund shall all be paid to the persons who shall become entitled as aforesaid, at the end of ten years from my decease, within the period of twenty-one years therefrom; and all income accruing after said ten years shall be accumulated on each share and paid with the principal. Thus said entire fund and accumulated income must be paid over within twenty-one years after my decease.” ********* 17. “ I give and bequeath to my executors and the survivor of them all my bank, railroad, canal and other stocks, bonds, notes, and loans of every description, mortgages and other securities, and all my other personal estate, to enable them freely and fully to execute the various provisions of this will. They may pay said special bequests given by items Fourth to Eleventh, both included, either by assigning any of said personal property (excepting the St. Louis investments) to the legatee at its fair value, to be ascertained and settled by the executors, or they may pay the same in money. [Here followed similar provisions in regard to the making up by the executors of funds which were the subjects of other bequests, stated sufficiently in the opinion of the Supreme Court, infra. The will then continued:] And the rest, residue, and remainder of my estate consisting of bank and other stocks, loans, lands and tenements, ground-rents and all real, personal, and mixed property of every description, and wherever situated in this state and elsewhere, and by whatever title held, whether vested, contingent, present, or future, which may belong to me at the time of my decease, I direct my executors to sell and convert into money (excepting only such personal investments which they may deem suitable to enter into the trust provided for in item Fourteenth), and then reinvest the same in such bonds, loans, or other investments, (excepting capital stocks of corporations or other companies only), as the executors may deem best for the benefit and advantage of the residuary trust provided for in the fourteenth item of this will; and as such residuary portions of my estate shall be so converted and reinvested by the executors, they will from time to time hand over to the said trustee, to be by it held and disposed of as in the fourteenth item provided, and to continue subject to the provisions of item Sixteenth as to the investment and reinvestment of such fund. And, in executing the powers in the various items of this will conferred, the executors shall have full and absolute power to convey in fee-simple, or for less estate, and for cash or upon mortgage, or upon ground-rent, in such manner and on such terms as they may deem proper, all and every part of my estate in this will in any way mentioned, including all my lands and tenements; and all titles and conveyances which they may make shall be taken free and discharged of all trusts herein provided for, and without liability on the part of any purchaser to see to the application of the purchase money; and the net proceeds of all such sales as well as all rents and income derived from any part of said property shall constitute a part of my residuary estate, and be invested as hereinbefore expressed. And until sale of my real estate my executors shall have full control over the same, and are authorized to lease or rent it, and to make such repairs, alterations and changes therein as they may deem proper; and to pay all taxes and other proper charges against the same, and to make all insurances thereon deemed proper by them, and generally they may do and perform all acts touching such property as they may deem to the advantage of my estate, in as full and ample a manner as I can do.....And I direct that my executors shall apply the proceeds of sales of real estate equally, and in like manner with the proceeds of sales of personal estate, in payment of all or any of the bequests and legacies given by me.....The executors are requested to make up and hand over to the trustee the amounts called for in items Second and Third within one year after my decease or as much sooner as may be practicable; and all income given by this will shall begin to accrue to the beneficiaries after one year from my decease, and not before then, excepting the annuity in item Third, which shall accrue from the date of my decease, and which the executors shall pay during the first year in order to prevent any delay in paying that.....All persons who receive portions of the residuary estate as provided in item Fourteenth and who do not attain the age of twenty-one within the period of twenty-one years from my decease, shall be paid their shares precisely at the end of twenty-one years from my decease, and to this extent I modify the provision as expressed in item Fourteenth. The investments herein authorized of the residuary estate made by the executors, or authorized by them, are intended to include all investments of the kinds which I may die possessed of (excepting only capital stocks of corporations or associations) and are not confined to legal investments until reinvestments shall be made by the trustee, after the executors and the survivor shall cease to direct or authorize the same as hereinbefore mentioned.” On the hearing, a contest was had as to the proper application and disposition of the income accounted for by the executor ; the Pennsylvania Company for Insurances, etc., claiming it as a part of the residuary estate bequeathed to the claimant in trust, by item fourteen of the will, while the next of kin of the testator contended that it constituted part of the income which the testator directed to be accumulated until the expiration of ten years after his death; that such direction was void, and that the next of kin were entitled to receive the income accounted for by the executor, as well as all income accruing thereafter until the expiration of said period. Upon the questions thus presented, the auditing judge, Ferguson, J., on April 25, 1890, filed an adjudication, which, after quoting § 9, act of April 18, 1853, P. L. 503, proceeded: This act has received judicial interpretation in a number of cases in this state, beginning with Washington’s Est., 75 Pa. 102, and followed by Carson’s App., 99 Pa. 325; Schwartz’s App., 119 Pa. 337; Mitcheson’s Est., 11 W. N. 547; Sergeant’s Pet., 11 Phila. 8; Grim’s App., 109 Pa. 391; McKee’s App., 96 Pa. 277; Eberly’s App., 110 Pa. 95. It is not necessary to refer particularly to all that was decided by these cases, or the reasoning by which the conclusions were reached. It is sufficient for the purposes of this case to say that, in the opinion of the auditing judge, they settle conclusively that, while under the British statute upon this subject, there might be accumulations for an absolute period of twenty-one years from the death of the testator, under our statute the accumulation is confined to the minority of the beneficiary who under the will takes the fund at majority. In other words, there can be no trust for accumulation except for minors; and, as twenty-one years is the limit of minority, that is the utmost period of time for which any trust for accumulations can exist in this state. Is the trust created by this testator’s will transgressive of this statute ? The answer to this question depends upon whether it is a trust for minors, who were in existence at the time of the testator’s death and who would be entitled to take upon attaining their majority. There are no persons to-day who answer this description, because it is impossible to ascertain now who will be the persons ultimately entitled to receive this residuary estate. The testator says, “At which time (the expiration of ten years after his decease) it shall be divided amongst such of my grand-nephews and grand-nieces, who shall then be living.” This estate is therefore not vested in any one. It is purely contingent, and it is absolutely impossible to-day to determine who are to take it. They cannot now be ascertained. There may be grand-nephews and grand-nieces living to-day, who may be dead on the seventh day of March, 1899, and there are children now unborn who, when that time arrives, will answer in full the description of those who are to take ; so that we must wait until the expiration of the time fixed by the testator, before we can know who are to be the recipients of his bounty: McBride v. Smyth, 54 Pa. 245; Holme’s Est., 126 Pa. 228. Such being the case, how can we conclude that this trust for accumulations is for the benefit of minors, when we do not know who it is for; and if we cannot so conclude, this trust must fall. If this trust is null and void, as the auditing judge thinks it is, to whom do the “ rents, issues, interest and profits, so directed to be accumulated contrary to this act,” go ? By the provisions of the act they “ shall go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed.” As a rule, the residuary clause of a will carries all of an estate which has not been otherwise thereby disposed of, and therefore covers all void and lapsed legacies. If this direction for accumulation had been with reference to some portion of the testator’s estate other than the residue, it would then have fallen into and been disposed of by the residuary clause ; but it is the income of the residuary estate itself, which is to be accumulated, and if this direction is void, there is but one conclusion that can be reached, and that is, that as to the income which the testator has failed to legalty dispose of by the residuary clause of his will, he died intestate, and the same must go to and be distributed among his next of kin according to the intestate laws of this commonwealth: Grim’s App., supra; Mellon’s Est., 16 Phila. 328. The account shows that the income of this estate, in the hands' of the accountants for the first year, amounts to the sum of $457,456.73. The question was raised whether this fell into and became a part of the principal which passed to the trustees under the residuary clause, or, whether it remained income, and as such, if the direction to accumulate is void, was undisposed of by the bill. Mr. Johnson, for the trustees, claimed that this income became principal and passed under the residuary clause. Every will takes effect from the death of the testator, and all its provisions must be presumed to relate to things as they existed at that time. When, therefore, a testator bequeaths all the rest, residue, and remainder of his estate, he means all that is then left after debts, expenses, and legacies previously given by him have been paid. While one year from the time of death has been fixed by the law, and in this particular case by the testator himself, as the time' within which his estate must be settled, this does not alter the fact that the status of the corpus of the estate is fixed as of the time of the death of the testator. For this reason, in every properly-stated account, as in the one now before us, the account of the corpus of the estate is kept separate and distinct from the income, whether of the first or any subsequent years. This has been frequently held to be the only way to state accounts for the proper settlement and distribution of estates. In fact, it has been made one of the rules of this court, that accounts must be so stated. Where, in most cases, would be the use of this care and particularly with reference to principal and income, if after all the provisions of the will had been carried out, what was left, whether principal or income, fell into the residue? That the income does not fall into the residue, has been held in a number of cases to which the auditing judge will simply call attention: Bird’s Est., 2 Pars. 168; King’s Est., 11 Phila. 26; Sergeant’s Est., 9 Phila. 346. In his will, the testator directed that “ all income given by this will shall begin to accrue to the beneficiaries after one year from my decease, and not before then; ” so that there can be no question but that the beneficiaries under this testator’s will do not take the income until a year after his death. But this direction can have no application to the income of the residue, which he did not give to any one, but which he directed to accumulate. That must either be accumulated, as directed by the will, or if this direction is void, go to the next of kin. It was urged that the estate which is to pass under the residuary clause of testator’s will to the trustee, is not the residuary estate as it existed at testator’s death, but as it existed a year afterwards, when it was augmented by nearly a half a million dollars income, because the testator fixed that time for the settlement of his estate and until then the residuary estate could not be ascertained. This, however, presents no different case than we have in every decedent’s estate where the law fixes the same time for its settlement. In no case can the exact amount of the residue, in dollars and cents, be ascertained until the account is filed and adjudicated; but this does not alter the fact that the estate is what existed at the moment of his death, and the residue thereof is what is then left, after all the conditions of the will have been fulfilled, even though the amount cannot be ascertained until the settlement. It would hardly be contended that this income would be subject to the collateral inheritance tax, yet to hold that it became part of the principal of the estate would make it so liable. It was further claimed that one year was the time fixed for the settlement of this estate, and the handing over of the residue to the trustee ; and that as this will directed accumulation of the residuary estate by them only after it came into their hands, this income of the first year could not be considered as accumulation of income but as principal. If this position is tenable, then the testator might have avoided the statute altogether, by simply postponing the settlement of his estate for several years. If he could thus accumulate for one year, he might continue it for ten years, without the intervention of a trustee or without any direction in his will .to accumulate, but by simply leaving it in the hands of his executor and fixing a distant time for the settlement of his estate. When that time arrived after the legacies, etc., were paid, all that would be left, principal and income, would be residue and pass under the residuary clause, and thus by indirection he might accomplish what he could not do directly. It is further claimed that there has been no accumulation during the first year, because the estate taking it as a whole is not now as large as it was when the testator died, having been diminished by the payment of legacies, taxes, expenses, etc., to an amount greater than the income, and therefore, there has been no violation of the statute. The answer to this is that ‘ there was no direction to accumulate the whole estate, but only the residue, and that consists only of what is left after the other things have all been paid. If to this residue is added this large sum of money, it seems to the auditing judge as if this were an accumulation. The corpus of the estate may have been diminished, but the residuary estate, to which the trust for accumulation alone referred, has been largely increased. Without any further discussion of this matter, the act itself in terms provides that there shall be no accumulation “ only after such decease during the minority,” etc. Any accumulation after the death of the testator is therefore prohibited. The auditing judge awards the income for the year, as shown by the-account, to the next of kin of the testator. —A decree of distribution in accordance with the opinion of the auditing judge was thereupon reported. Exceptions to the adjudication, after argument thereof, were dismissed by the court in banc upon the opinion of the auditing judge, and the adjudication confirmed; whereupon, the Pennsylvania Company for Insurances, etc., trustee, took this appeal, specifying that the court erred: 1. In refusing to award to the trustee, as part of the trust fund to be held by it, the balance of income accounted for by the executor. 2. In distributing said income among the testator’s next of kin.
143 Pa. 167Wood v. Bridgeport Borough (1891)
No. 8 January Term 1891, Sup. Ct.; court below, No. 98 December Term 1889, C. P. On November 29, 1889, Milton S. Wood brought trespass against the borough of Bridgeport. Issue. At the trial on March 19, 1890, it was shown that about September 12, 1889, the Frame Building & Loan Ass’n dug a trench across Front street to the canal, in the borough of Bridgeport, for the purpose of draining a wet cellar. The trench was filled up with the earth removed therefrom, and on Sunday, September 15th, a very heavy rain-storm occurred, whereby the trench across the street settled about two feet. The same day, after the rain was over, the burgess and street commissioner made an inspection of the streets, and finding the trench thus settled, had poles put up, upon which in the evening lights were suspended. About eight o’clock in the evening, Lincoln Wood, driving the plaintiff’s horse, was returning with a companion from a trip to the country, and drove upon Ifront street where the trench was. There was testimony on the part of the plaintiff to the effect that one of the poles with the lights on them was on the right side of the street, to the approaching team, and the other about the middle, leaving the left side of the street exposed. The defendant claimed from the testimony adduced that both sides of the street were protected by the poles and lights. The defendant adduced testimony, further, that Mr. Wood and his companion, as they turned from DeKalb street into Front street, were warned by a man on the corner who called to them that they could not get down there. They testified that they did not hear the warning, but, seeing the lights to the right and in front, drove carefully to the left and went into the trench, whereby the plaintiff’s horse was thrown and badly injured. At the close of the testimony, the court, Swartz, P. J., charged the jury in part as follows : It seems that this trench was dug by the building association across this highway. It was filled up, but by reason of a heavy rain either the trench was washed out or the filling so settled that there was a depression from the surface of the street to the top of the filled-up ditch. If the building association are guilty of erecting a dangerous obstruction in the street, it would be their duty to see that it should be corrected, that the public having occasion to use the street may do so with safety. But, because such may be the duty of the building association, it does not follow that the borough authorities are entirely relieved from removing such an obstruction, or from taking proper steps to protect the public against a dangerous obstacle or obstruction in the street. They, would, however, not be liable unless they had notice of the existence of such a dangerous place, put there by other persons, or unless there was such time elapsed from the time it was put there that they ought to have known, and failed to know because they were negligent in not finding out. If they failed to find out by an omission to exercise proper care, they would have been just as guilty as if they had known of the existence of the dangerous place. But that question does not arise in this case, because if you believe the evidence on that point, they did have knowledge of the existence of this trench and of its dangerous condition..... You have heard the evidence in this case as to the character of the poles that were put up. According to the plaintiff, as I recollect the testimony, but the testimony is entirely for you and if my recollection is at fault you will correct it, — you will not be guided by my recollection, but rely upon your own recollection of the testimony, — [according to my recollection, the plaintiff’s witnesses testified that these poles were placed, one near the right-hand gutter or curb stone, and the other some distance from it, but that they were on the right-hand side of the street, leaving a place at the-left-hand side of the street where it was not covered by the light that was shining from these poles. That is the testimony, so far as I recollect it. On the other hand, the testimony of the defendant is, at least the contention is in that way, that there were two of these poles and that they were properly distributed over the street, one being eight or ten feet from the curb line, and the other was, as the counsel contends, set in the middle of the street, so that the whole street was protected, one part of it as much as the other.]1 As I understand it, one pole was eight or ten feet from the curb, and the next pole some eight or ten feet beyond that, and if the street was only thirty feet wide, the second pole must have been on the left-hand side of the middle of the street. Was this a proper precaution for persons who might drive along that street? Was it a sufficient warning for them that there was danger in crossing this trench ? If it was, then the burgess and town authorities are not liable for any damages in this suit. If the poles were placed as contended by the defendant; if you find that, from the weight of the evidence, I charge you there can be no recovery in this case; because, if the poles were placed, one eight to ten feet from the curbstone and the other from eight to ten feet beyond that in the street, then the street was so covered that the plaintiff, or those having the horse in charge, had a sufficient warning to make inquiry and not drive across without stopping, and if they did so they would be guilty of contributory negligence; that is, if you find the poles covered the street as claimed by the defendant. If, however, the poles and lights were on the right-hand side of the street, then I leave it as a question with you to determine whether there was negligence on the part of the borough in so placing them and not taking other precautions, and whether there was contributory negligence on the part of the parties using this horse in driving over this ditch, notwithstanding these lights were there. As the court views it, this inquiry under the instructions of the court narrows itself down to a very small compass..... Now, you will take the testimony and determine' whether there was any contributory negligence on the part of these young men when they drove down this street. If they heard the notice given to them that they could not pass down the street, and yet persisted in going, that would be negligence on their part, because they failed to heed the warning. However, the parties who drove the team, both Lincoln Wood and the young man who was with him, swear they did not hear any such words used, as I recollect the testimony, by any one standing on the corner of the street. [Suppose they went on and saw these lights there; were they negligent in not stopping, and looking and finding out what was meant by those lights? Here the test is: Did they act in this manner as a reasonable man of ordinary care and prudence would have acted under similar circumstances; that is the test. Did they exercise care and prudence according to the circumstances ? If they did, then there was no contributory negligence. If they failed to exercise the care and prudence that a reasonable man under such circumstances would have exercised, then they are guilty of contributory negligence.] 2 That is all that I desire to say to you, gentlemen of the jury, on the question of negligence..... I am asked by the defendant to charge you: 1. Under all the evidence in this case the verdict should be for the defendant. Answer: I refuse to so charge you. It is a matter entirely for you, under the evidence as it has been adduced before you from the stand, and under the law as I have endeavored to give it to you in the charge.3 —The jury returned a verdict for the plaintiff for 1113.32. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error: 1, 2. The portions of the charge embraced in [ ] 1 2 3. The refusal of the defendant’s point.3
143 Pa. 171Bodey v. Thackara (1891)
No. 41, January Term 1891, Sup. Ct.; court below, No. 19 June Term 1888, M. L. D., C. P. On January 28, 1889, William H. Bodey and James Livingston, trading as Bodey & Livingston, issued a scire facias sur mecb anics’ lien against Alexander M. Thackara and Eleanor Sherman Thackara, his wife, in right of said wife, owners or reputed owners, and L. W. Kitzelman, contractor. Issue.
143 Pa. 182Bevan v. Thackara (1891)
No. 83 January Term 1891, Sup. Ct.; court below, No. 9 June Term 1888, M. L. D., C. P. On February 26, 1889, Walter Bevan and H. C. Bevan, trading as Walter Bevan & Brother, issued a scire facias sur mechanics’ lien against Alexander M. Thackara and Eleanor Sherman Thackara, bis wife, owners or reputed owners, and L. W. Kitzelman, contractor. Issue.
143 Pa. 201Fesmire v. Shannon (1891)
No. 97 January Term 1891, Sup. Ct.; court below, No. 44 June Term 1886, C. P. On April 6, 1886, Peter Fesmire, Ephraim Magargal and Josiah Kerper, executors of the will of Peter Fesmire, deceased, as assignees of Benjamin Brown, administrator, etc., brought scire facias against James Shannon, with notice to William Hazel Wilson, terre-tenant, upon a mortgage executed by the defendant Shannon in favor of Samuel Brown. Before trial, Josiah Kerper was dismissed by the Orphans’ Court of Montgomery county from the office of executor, and, by amendment made at the trial, his name was stricken from the record as one of the plaintiffs. At the trial, on October 13, 1890, the following facts were shown: On April 1, 1871, James Shannon executed and delivered to Samuel Brown a mortgage of certain real estate in Norristown, to secure the payment of $2,500, with interest. The mortgagee having died, Benjamin Brown, his administrator, on June 19, 1875, transferred the mortgage by the following assignment indorsed thereon: “ I, Benjamin Brown, administrator of Samuel Brown, the mortgagee within named, do hereby assign, transfer and set over the within mortgage and all moneys due and to become due thereon, unto Josiah Kerper, Peter Fesmire and Ephraim Magargal, executors of the last will and testament of Peter Fesmire, deceased, to hold the same to them, together with the mortgaged premises within described, their heirs, executors, administrators and assigns.” By the will of Peter Fesmire, deceased, his executors, named in the foregoing assignment, were directed to invest the one third of his estate in “ good real-estate securities,” the interest or income of which was to be paid half yearly to the testator’s widow during her life, the principal to be distributable at her death among certain of his children, among whom were Peter Fesmire, one of the executors, and Catharine Magargal, the wife of another. The purchase by said executors of the mortgage in question was made as an investment, in pursuance of the aforesaid direction in the will. At the date of the assignment to them they had settled their final account, in which they set aside $7,806.12 for investment for the widow’s benefit. The date of filing that account was given in the paper-books as June 10,1875. As Josiah Kerper resided near to the widow, while his co-executors resided some distance away, the latter left in his custody the original mortgage and assignment, in order that he might from time to time collect and pay over to the widow the interest accruing upon the mortgage. He did so collect and pay over the interest until 1882, and continued to make payments of interest to the widow until October 1, 1885. On April 1, 1882, Shannon paid the principal of the mortgage debt to Kerper, who thereupon delivered up to him the original mortgage, and entered upon the record thereof in the recorder’s office an acknowledgment of satisfaction under seal in the following form : “I, Josiah Kerper, assignee of Benjamin Brown, administrator of Samuel Brown, Sr., mortgagee named in the annexed mortgage, do hereby acknowledge full satisfaction for principal and interest of said mortgage, and do release the mortgaged premises to the mortgagor, his heirs and assigns forever. Witness my hand and seal this first day of April, 1882. Josiah Keeper, Acting Executor. Acknowledged before me, H. B. Strodook, acting for Recorder.” Kerper’s co-executors were not aware of this payment until some time in 1886. On cross-examination, they both testified that they had not given notice to Shannon that he must not pay the principal to Kerper, or that the mortgage was held by them as testamentary trustees. The money so collected by Kerper from Shannon was embezzled.* At the close of the testimony, the court, Swartz, P. J., charged the jury in part as follows: This is a suit upon a mortgage, and as the court views this case there is no question of fact that requires your consideration. [The only question raised by this issue is one of law, and therefore it seems plain to the court that the duty of the court is to direct you to render a verdict in favor of the plaintiffs and against the defendants.] 3 It is perhaps unnecessary to give my reasons to you for this conviction..... There is no evidence here that Mr. Shannon had any knowledge of any trust devolving upon these executors, other than that which devolved upon them as executors. Nor is there any proof here that Mr. Shannon had notice that this money was invested by the executors, the interest whereof was to be paid to the widow of Peter Fesmire. [The facts as disclosed, in this case, show simply the investment by three executors of the funds of the estate, and the payment by the owner of the property, the mortgagor, to one of the executors, who failed to account to the estate or to his co-executors for the money so received; and, in the view the court takes of this case, that is not a good payment of the mortgage],3 and the satisfaction entered by one of the executors under such circumstances is not a good satisfaction. The executors are appointed to act together. The purpose of the appointment of three executors, no doubt is for the better protection of the estate; and when this obligation was taken in the name of the three executors, it was right and proper that each one should be consulted, or at least assent to the payment of this money to any particular one of the executors, for otherwise the matter would be entirely in the hands of one executor, and it would be useless to have the appointment of three. If one executor can undo everything that three can do or may do, it is useless to require that the three should act conjointly in the investment..... [It is your duty, therefore, under the instructions of the court, to render a verdict in favor of the plaintiffs, for the amount of this mortgage together with interest at six per cent from the time the last interest was paid, and that is admitted to be from the first day of October, 1885,] 3 or at least there is no testimony to the contrary. —The jury, in accordance with the direction of the court, returned a verdict for the plaintiffs for $3,255.46. Judgment having been entered thereon, the defendants took this appeal, assigning for error: 3. The parts of the charge embraced in [ ] 3
143 Pa. 217Estate of Hibbs (1891)
No. 132 January Term 1890, Sup. Ct.; court below, number and term not shown. On September 16, 1886, James G. Hibbs, trustee for Spencer B. Hibbs, under the will of James G. Hibbs, deceased, filed an account exhibiting a balance of income in his hands.
143 Pa. 225Clayton v. McCay (1891)
No. 102 January Term 1891, Sup. Ct.; court below, No. 1 June Term 1887, C. P. in Equity. On May 12, 1887, Sarah J. Clayton and Thomas J. Clayton, her husband, William McCay and George E. McCay filed a bill in equity against John B. McCay, Jr., and Emma McCay, for the partition of certain lands of the estate of John B. McCay, deceased, between the plaintiffs and the defendants.
143 Pa. 238Ulrich v. Reinoehl (1891)
No. 201 January Term 1890, Sup. Ct.; court below, number and term not shown. On February 11, 1889, A. Stanley Ulrich, executor of the will of Andrew Bleistine, deceased, brought assumpsit against Adolphus Reinoehl and Charles H. Meily, trading as Reinoehl & Meily, to recover certain moneys collected by the defendants as assignees of a policy of insurance upon the life of the plaintiff’s testator, on the allegation that said policy, as to the defendants, was a wagering contract. The defendants’ plea was non-assumpsit. At the trial, on October 24, 1889, the following facts were shown: In 1877, the defendants held a judgment against Andrew Bleistine for $99.51, which was the second lien upon his real estate. Other creditors were pushing him, and he desired to get rid of the defendants’ judgment, in order that he might make some arrangement to meet his other indebtedness. To this end, he offered to give the defendants a policy of insurance on his life in $3,000, $5,000 or $10,000, if they would satisfy the judgment. They at first declined to make such an arrangement, but after several interviews yielded to the entreaties of Bleistine and his wife, and consented to take a policy for $3,000 and in consideration thereof satisfy the judgment. Accordingly, on April 2, 1877, they entered satisfaction on the record of the judgment, and on the same day Bleistine took out a policy for $3,000 in the United Brethren Mutual Aid Society, and immediately assigned it to the defendants. The assignment was not by way of collateral security, but was an absolute one, without reservation. The defendants paid the admission premium and all subsequent assessments and charges upon the policy. At the date of the policy the debt, interest and costs due upon the judgment in favor of the defendants amounted to $110.02. Bleistine died on August 13, 1881, and after his death the amount of the policy was paid by the insurer to the defendants. The latter were not related to the deceased. The defendants offered to show by Thomas Spangler, secretary of the defendant society, the life expectancy of the insured, Andrew Bleistine, at the time the insurance was taken out, and the amount of assessments which would have been paid upon the policy in question, in case the insured had lived out that life expectancy. Objected to, as irrelevant and incompetent under the circumstances of this case- By the court: Objection overruled; exception.1 The witness then testified, in substance, that Bleistine was insured at the age of 42 years; that according to the Carlisle Tables his expectancy of life was then 26.84 years; that, in the event of his living out that expectancy, there would be paid on that policy, on the basis of the present average number of assessments, “$2,226.82 of assessments, and on annuals $210,” making a total of $2,436.13, without interest; and that if interest on the several payments were added, the total amount invested in the policy at the end of the expectancy of life of the insured would be $4,336.31. The testimony being closed, the court, McPherson, J., charged the jury in part as follows: [The question, and the only question in the case for you to determine, is whether or not this was a wagering or speculative contract.] 7 .... Now, you will have to determine, and therefore as I say, we submit to you the question, whether or not this was a speculative transaction. And you must, of course, determine it, not by what took place since that time, but by what took place at the time the contract was made, and this policy was taken out by the parties and assigned to Reinoehl & Meily. It is admitted that they were not relatives, and therefore had no insurable interest on that account; but it is contended, and it appears clearly, that they were creditors to the amount which I named; and therefore they had an insurable interest to-some extent in this man Bleistine, who was their debtor in the sum of nearly one hundred dollars; and therefore, we repeat, they had a right to insure his life, so as to protect that debt. The difficulty arises there just at that point: for how much ought a creditor to insure the life of his debtor, in order to fairly protect his debt? Of course, there are other things to be considered than the mere amount of the debt. You must consider the age of the person insured; his condition of health, his habits of life, and there are other circumstances also to be considered. The character of the company in which the insurance is to be put, is a fair matter of consideration; the amount insured, as bearing upon the amount of premiums, or the amount of assessments which the insurer may be called upon to pay; and you see, therefore, that it is not an easy matter to determine off-hand just how much insurance a creditor ought to take out in order to protect a debt. If he takes out too little, he may be called upon to pay out a considerable amount of money, and at the death of his debtor may find that, instead of being paid his debt, he is out of pocket a considerable sum; and that would inevitably be the case if he takes out too small a policy. On the other hand, if he takes out too large a policy, one that is entirely disproportionate, then it plainly becomes a wagering or speculative policy. It is then plainly his interest that the man should die, and die soon. Take this present case: Suppose, instead of a policy of three thousand dollars, it had been ten thousand dollars. I suppose none of us would hesitate a moment to say that, considering all the circumstances and all the evidence in the case, this was a grossly disproportionate sum, and therefore the policy should be pronounced a wagering policy as a matter of law. [But I am not able to say to you, considering all the facts before us, that this is a wagering policy. I think it is a question of fact for yourselves.] 8 . . . . Now, what is the case ? Here is the admitted relation of debtor and creditor, and the creditor is about to take out a policy of insurance upon the debtor to protect his debt; and he takes it out in a certain sum. [Now, the question for the jury is whether, considering all the circumstances of that transaction —the age of the person insured, his condition of health, his habits of life, his expectancy of life; the amount of premium, the probable amount required to be paid by the creditor — whether, considering all those matters, the amount of insurance taken out to protect that debt was so disproportionate as to make the policy a wagering or a speculative policy. If the jury find that it was not, that it was properly proportionate, fairly calculated to protect the debt, and no more, then the verdict must be in favor of the defendants.] 9 If, however, they find under all the circumstances of the case — and we consider it as of that time, and not as of this — that it was a wagering policy, then the plaintiff is entitled to recover the sum which I have already indicated to you, and of which you will no doubt have a calculation. [The fact that this transaction has turned out well for the defendants is not the controversy; for, if this man had lived out his expectancy of life, if the calculations which you have heard testified to were accurate, it would have turned out badly; and the mere fact that it turned out well is not controlling. In my judgment, it is not an element in the case at all. The question is, whether, when the policy was made, it was a wagering contract, or was to fairly protect the debt, and no further.] 10 If it was the latter kind of contract, the defendants are entitled to the proceeds of the policy. If it was the former, then they are entitled only to that which I have said, and the jury must find for the plaintiff in the amount I have indicated. [Plaintiff’s counsel have asked us to answer a number of points. They are all refused, because they all ask for binding instructions as to the amount to which the defendants are entitled. I need not read them to you.] 6 The defendants’ points I have already answered in the general charge, so that I need not detail them. —Among the points of the plaintiff referred to in the charge, were the following: 4. If the jury believe that Reinoehl & Meily effected this insurance for themselves; that they paid all the premiums and assessments; that the policy was taken out with the understanding that it was for the benefit of defendants and to be assigned to them, and they having shown no insurable interest in the life of the insured except judgment No’. 116 January Term 1876, the verdict must be for the plaintiff, for whatever is in excess of said judgment, and whatever expense they may have had to keep policy in force, with interest.4 5. The satisfaction of the judgment No. 116 January Term 1876, held by Reinoehl & Meily against Andrew Bleistine, for $99.51, with interest and costs, on April 2, 1877, the date of the assignment to them of the $3,000 policy by Bleistine, as the consideration for the assignment of this policy on Bleistine’s life, was a purchase of the policy from Bleistine by Reinoehl & Meily. The satisfaction of the judgment, as the price of the transfer to them of the policy, was an extinguishment of the indebtedness from Bleistine to Reinoehl & Meily, and with it the interest Reinoehl & Meily, as creditors, theretofore had in the prolongation of the life of Bleistine. Both the purchase of a policy, and the taking of a policy on the life of another by a person no longer a creditor, and whose pecuniary interest lies in an early death of the insured, are speculative transactions, against the policy of the law; and as such, Reinoehl & Meily acquired no right to any portion of the proceeds, except sufficient to reimburse them for their satisfied judgment, with interest and costs, and the necessary outlay in the taking out and maintenance of the policy, with interest on the payments to the date of the payment of the money; and the jury must find in favor of the plaintiff for the balance.5 6. The amount allowed and paid as the consideration of the transfer of the insurance, to wit, the sum of $99.51, with interest thereon from December 7, 1875, April 2, 1877, and the costs, was grossly inadequate; and the disproportion between that amount and the amount of the insurance, $3,000, is so great as to require the court to say, as matter of law, that the transaction was a wager, and that in this action Reinoehl & Meily have no right to retain more of the insurance money received by them than the amount of their satisfied judgment with interest and costs, and the premiums and assessments paid by them, with interest thereon ; and therefore, the verdict of the jury must be in favor of the plaintiff for the amount received by the defendants, with interest from the date of its receipt, less the amount of the judgment, interest and costs, and assessments and premiums paid, with interest.* 7. The utmost insurance upon the life of Bleistine to which the defendants would have been entitled, was for the amount of the principal, interest and costs of their judgment of $99.51, with interest thereon for the period of his life expectancy, added to the amount of the premiums necessary to insure such aggregate for his expectation of life under the Carlisle Tables, with interest on the amount of such premiums at lawful rates for the one half of such period, instead of the disproportionate amount taken by them. Having insured for an amount largely in excess of the sum to which they were entitled, they are now entitled to be allowed only an amount sufficient to pay them their debt, with interest and costs, and the interest thereon to the date of the payment to them of the insurance, together with the actual premiums, etc., by them paid, with interest thereon to the receipt of the money sued for; and for the remainder of the fund with interest, the verdict of the jury must be for the plaintiff.3 —The jury returned a verdict for the defendants. A rule for a new trial having been argued, the court, McPherson, J., on December 26, 1889, filed an opinion as follows: The defendants, being creditors of the decedent, had an undoubted insurable interest in his life: Corson’s App., 113 Pa. 444; and in this respect the case before us essentially differs from Seigrist v. Schmoltz, 113 Pa. 326, where the beneficiary had no such interest, and was therefore denied the right to retain any sum beyond actual payments with interest thereon.. The present question, however, is this: The defendants’ insurable interest being admitted, should the court have declared the policy speculative, as a matter of law, because it was disproportionately large, or was its speculative character to be determined by the jury ? If the question was for the jury, the plaintiff’s points were properly refused, because they all asked for binding instructions. As stated in the charge, there is on the surface much resemblance between this case and Cooper v. Shaeffer, 20 W. N. 123; but we thought then, and still think, that there is much real difference also. That case was rested in the court below, and on this point we can speak with positiveness, solely on the-disproportion between the debt and the amount of the policy. Even the age of the insured was not dwelt upon as an element of the problem, and there was not a word of evidence as to the-expectancy of life, or the probable amount of annual payments to be made. Here, however, these important matters were proved, were urged as a principal ground of defence, and required consideration. In our opinion, they necessarily carried the case to the jury, and abundantly justified the verdict. The defendants insured a healthy man of forty-two years in the sum of three thousand dollars, to protect a debt of one hundred dollars. If lie had merely lived out his expectancy and no longer, they would have been obliged to pay for assessments and annual dues $2,436.82, to which, if interest be added, the amount of their investment would have been $4,836.31. In return, they would have received three thousand dollars, thus suffering a considerable loss. Surely, to call such a transaction speculative is to misuse the word. That it happened to be profitable because the insured died within a few years, is manifestly not to the point. With much respect, it is suggested that the principle, indicated in Grant v. Kline, 115 Pa. 625, and Cooper v. Shaelfer, supra, as the proper rule to determine for what sum a creditor’s policy should be taken out, ought to be somewhat expanded before it is positively adopted. As now stated, it would not provide for a case like this, where the policy is taken out in a company which levies annual (monthly?) assessments, and where, therefore, allowance must be made in the creditor’s forecast for possible fluctuations; neither would it now provide for the not infrequent contingency of. the insured outliving his expectancy. Under the present form of the indicated rule, the creditor must always lose if the debtor lives beyond his expectancy; and it cannot be accurately applied to assessment insurance, because in this variety of the business the annual payments are not a previously known and certain sum. New trial refused and judgment directed on the verdict upon payment of the jury fee. —Judgment having been entered, the plaintiff took this appeal, assigning for error: 1. The admission of defendants’ offer.1 2-5. The refusal of plaintiff’s points.2 to 5 6-10. The parts of the charge embraced in [ ] 6 to 10 The cause was first argued in the Supreme Court on February 20, 1890, before Paxson, C. J., Sterrett, Green, Clark, Williams and Mitchell, JJ.
143 Pa. 256Auburn Bolt & Nut Works v. Shultz (1891)
No. 211 July Term 1890, Sup. Ct.; court below, No. 117 March Term 1888, C. P. On January 17, 1888, the Auburn Bolt & Nut Works, a corporation, brought assumpsit against Dr. D. L. Shultz, to recover a subscription by the defendant for ten sitares of the capital stock of the plaintiff company. The defendant pleaded non-assumpsit.
143 Pa. 269Muncy Traction Engine Co. v. DeLa Green (1888)
No. 7 January Term 1888, Sup. Ct.; court below, No. 525 March Term 1887, C. P. On March 4, 1887, the Muncy Traction Engine Company, a manufacturing company incorporated under the act of A pril 29, 1874, P. L. 73, brought assumpsit against DeLa Green, to recover a subscription by the defendant to the stock of plaintiff company. Issue. At the trial on May 11, 1887, the case made to appear was substantially as follows : Early in 1886, a paper was circulated to obtain subscriptions to the capital stock of a company to be incorporated for the manufacture of traction, portable and stationary engines and boilers, etc., etc., at Muncy, Pa., the capital stock to be fifty thousand dollars, divided into five hundred shares of one hundred dollars each. The defendant took an interest in the project from the start, solicited subscriptions, subscribed himself, and induced others to subscribe. It became apparent that the full amount of the proposed capital stock could not be raised, when the foregoing subscription list was abandoned and a new one adopted, identical with the first except reducing the capital stock to thirty thousand dollars, at least, and the par value of each share to-fifty dollars. This subscription paper was as follows : “ We, the undersigned, agree to take the number of shares set opposite our names, in a company to be incorporated under the laws of the commonwealth, and located at Muncy, Pa., for the manufacture of traction, portable and stationary engines, saw-mills, farm and other machinery, and for the purpose of doing a general foundry and machine business. “ The capital stock of said corporation to be thirty thousand dollars (130,000) or more, to be divided into shares of fifty dollars each. “ After sufficient stock has been subscribed and a preliminary organization has been effected, ten per cent of each share of the stock subscribed is to be paid for the purpose of securing a charter; after a charter has been obtained and a permanent organization effected, the balance of the subscriptions to be paid in three equal payments, in three, six and nine months from date of organization of the company. “ NAMES. SHAKES. AMOUNT. P. M. Trumbower, 100 $5,000.' H. B. Larzelero, 80 4,000. Mrs. C. Bowman, 20 1,000. DeLa Green, 20 1,000. John M. Bowman, 20 1,000.” And about seventy-five others. This subscription was completed about March 1, 1886, and on March 4, 1886, a meeting of the subscribers was hold, when the number of directors was fixed, a committee on articles of association and by-laws appointed, and the name of the intended corporation adopted. At a meeting on March 8th, nominations were made for the office of directors; at another meeting on March 9th, articles of association and by-laws were adopted; and at a meeting on March 10th, the members of the board of directors were elected. The defendant was present at the meetings of March 8th and March 9th. At one or the other of these meetings, he handed to Mr. Gray, the acting chairman, who caused it to be read publicly, the following notice in writing: “ For reasons satisfactory to myself, I hereby withdraw my subscription to the proposed Muncy Traction Engine company, and forbid the use of my name in connection with the same for any purpose whatever.” On March 27, 1886, the application for a charter of incorporation was prepared and filed, and on April 16th, letters patent issued. At the close of the testimony, the court, Cummin, P. J., charged the jury: The issue which you have been sworn to try arises in an action of assumpsit, brought by the Muncy Traction Engine Company against DeLa Green, and this action is brought by the plaintiff to recover the amount of a subscription made by the defendant to this company in its preliminary existence. The paper on which the plaintiff seeks to recover is in these words. “We, the undersigned, agree to take the number of shares set opposite our names, in a company to be incorporated under the laws of the commonwealth, etc., etc.” Then follows the names of a number of persons, with the number of shares and amount of money they respectively subscribe; and among others, is the name of DeLa Green, this defendant, for twenty shares, or $1,000. The plaintiff showed this paper and the charter of the company, and thus made out a case. If there was nothing else here, there would be nothing but to find the interest, and that would be the end of the case. The defendant says, however, he ought not to pay this sum of money; and as a defence sets up here that, before this company was organized, he notified them that he withdrew, and would not pay his subscription ; that, for reasons satisfactory to himself, he desired not to continue any further in the company. That is the principal point of the defence in this case. And whether or not he had the right to do this thing at the time he did do it, is the real question that will determine whether the plaintiff will be entitled to recover in this case. Now, just when these subscriptions were made, or just when this withdrawal was filed, is not clearly in evidence. We have very few dates in respect to many of these transactions. A general history of the entire transaction would be substantially as follows: In the early part of the year 1886, some enterprising citizens of Muncy proposed to get up this corporation. They went about with subscription papers, and among others who were active was the defendant in this case. They solicited subscriptions for the purpose of erecting a corporation, and at that time they hoped to establish a company with a capital of fifty thousand dollars, with shares at one hundred dollars each. Numerous subscriptions were made, but it was discovered by the projectors that they could not raise fifty thousand dollars, and it was changed to thirty thousand dollars; and a new paper was gotten up similar to the original, except it changed the capital stock from fifty to thirty thousand, and the par value from one hundred to fifty dollars; and the persons who signed the first were asked to sign the second, and many did, perhaps all. Among others, this defendant signed the second paper. Meetings were held from time to time of the persons interested in the matter. They were not stockholders yet. They were all projectors of the company, persons interested in getting it np. Meetings were held from time to time to discuss the probability of the success of the enterprise, and to give encouragement to it, and to increase the subscriptions. At these meetings officers for the time being were elected; Mr. Gray, temporary chairman, and Mr. Schuyler acting as secretary. Minutes were kept, and they have boon put in evidence. These meetings, so far as the minutes show, were all held in the early part of March of the same year. The fourth of March, 1886, is said to be the first meeting. All this matter about the first and second papers had taken place before the fourth of March. Perhaps all the subscribers were not there. We have no date until the fourth of March; another meeting on the 8th, another on the 9th, and another on the 10th; and these four meetings represent all the minutes that we have, so far as they were given in evidence. At some of these meetings, this defendant was present. It was at a meeting held by the projectors of the company that he sent to the chairman a letter which was in substance as follows: “ For reasons satisfactory to myself, I hereby withdraw my subscription to the proposed Muncy Traction Engine Company, and forbid the use of my name in connection with the same for any purpose whatever.” This paper was received by the chairman at a meeting, and he read the notice and left the paper lying on the table in front of him, where it remained for some time. What meeting that was, or when held, we have no definite knowledge. Some witnesses testified it was before the preliminary organization. When was the preliminary organization ? Of it there is no definite date given. The next thing we know of this company, an application is made for a charter, and the articles of association, which they are required by law to file, were signed on the twenty-seventh of March, 1886. There we have another date. Now, at that time they were certainly organized, because they gave the names of their directors, and they had organized by that time. Just how long before that they had, we have no definite information. [That leaves the question there is in this case for you to determine; this question of the time when this withdrawal was delivered to Mr. Gray. Was it before they had perfected their organization, so they were ready to make application to the governor? If they had not perfected their organization before the twenty-seventh of March, that is the date you will go by. Was this withdrawal sent in before that time? If that was the time they were ready to file their application, if the withdrawal was before that time, DeLa Green had a perfect right to do it, no matter what his reasons were, and not only he, but any person. The .right did not belong to any particular person. The important question in the formation of a corporation of this kind is, when the association was ready to file their articles with the secretary of the commonwealth. Until this time, the whole scheme is inchoate, and a subscriber may withdraw. That leaves just that question to be determined by you.] 1 [If this defendant withdrew his name by a paper in writing that was read to the meeting as testified to, and that was before they were ready to file their papers in the-secretary of the commonwealth’s office, then the plaintiff cannot recover. But if they were ready, then he could not withdraw, except for fraud, of which there is no evidence in this case, or perhaps some other reasons. If he filed his withdrawal before that time, the plaintiff cannot recover.] 2 If afterward, they can recover. That, it seems, is the only point in this ease. Defendant’s counsel request the court to charge : 1. If the jury believe from the evidence that the defendant, at any time prior to the execution of the articles of incorporation, gave written notice of his withdrawal from his subscription to the proposed company, their verdict must be for the defendant. Answer: I cannot affirm that point just in the words in which it is expressed, but I say this: If the jury believe from the evidence that the defendant had withdrawn at any time prior to the time when this company was ready to file its articles of association in the office of the secretary of the commonwealth, and gave written notice of his withdrawal, then your verdict must be for the defendant. 2. It appearing by the subscription paper signed by the defendant that the subscriptions were to be paid in cash, and no reference therein to any subscriptions to be paid in property, and by the charter, that two of the principal subscriptions were paid in whole or in part in real estate and patent rights, the defendant is not bound by his subscription, unless the jury are satisfied by the evidence that the defendant assented to the change. Answer: We refuse to charge you as requested in that point. Under the statute which authorizes companies of this kind, real estate and other things necessary may be received for stock issued by them. 3. Under all the evidence in the case, the defendant is entitled to recover. Answer: We decline to charge you as requested in that point. We leave that the only single question for you to decide ; that if this defendant, by written notice, read by the chairman of the meeting, withdrew, and said his subscription was withdrawn, before they were ready to file their papers in the secretary of the commonwealth’s office, the plaintiff cannot recover. It is no matter what reason he had for it, or any reason whatever. If you find, on the other hand, that he did not withdraw until after they were ready, he cannot escape and must pay his subscription, and your verdict will be for the plaintiff for the amount of its claim with interest. —The jury returned a verdict for the defendant. A rule for a new trial having been discharged and judgment entered, the plaintiff took this appeal and assigned for error: 1, 2. The portions of the charge embraced in [ ] 1 2
143 Pa. 276Keiser v. Mahanoy City Gas Co. (1891)
No. 263 January Term 1891, Sup. Ct.; court below, No. 66 March Term 1884, C. P. On January 17, 1884, Francis Keiser brought trespass on the case against the Mahanoy City Gas Company, to recover damages for a private nuisance averred to have been occasioned by negligence of the defendant in carrying on the manufacture of illuminating gas. The defendant pleaded not guilty. At the trial on December 9, 1888, the following facts were shown: In 1873, the plaintiff became the owner of a property situated on the north side of Centre street in the borough of Mahanoy City. His lot had a frontage on said street of seventy-five feet, and a depth of one hundred and twenty-five feet. A hotel building was erected on the eastern side of the lot, occupying about forty-two feet of the front on Centre street. The North Mahanoy creek ran through the lot on the western side of the hotel building. Throughout the whole length of the plaintiff’s lot, a wall eight or ten feet high had been built on each side of the creek, and the western wall of the hotel building was in part set upon the eastern creek-wall. The creek was covered over with planking laid upon the walls referred to, so as to make the whole surface of the plaintiff’s lot available for use. About 1880, the plaintiff built a water closet upon the planking over the creek, adjoining the west side of his hotel building, cut away the planks beneath the seat of the water-closet, so that excrement would fall down to the creek, and placed a communicating door between the water closet and the wash room in the hotel building.- The water closet was removed in 1885. From 1873 until the time of the trial, the plaintiff used the building in carrying on the business of keeping a hotel, and resided therein with his family. The defendant company was incorporated under the act of April 29, 1874, P. L. 73, to supply gas light to the borough of Mahanoy City and persons, partnerships, and corporations residing therein, etc. Its works were located on a lot of ground in said borough, several hundred feet up the creek from the plaintiff’s premises, and about the beginning of the year 1875, manufacturing gas from coal was commenced. The waste matter produced in the manufacture, consisting of pitchy and oily substances, impregnated with the smell of gas, was at first discharged into the creek and allowed to float down through the plaintiff’s premises. About 1880, the plaintiff having complained that his house was in this manner filled with the odor of gas, the defendant laid a line of pipe along the creek,'to a point below the plaintiff’s house, to carry off the waste. After some time the pipes became obstructed or out of order, and the waste leaked out at the joints and was again carried by the water to the plaintiff’s premises. The plaintiff again complained, and the defendant then turned the waste matter into a pit dug upon its own premises. Testimony for the plaintiff, however, tended to prove that the waste still found its way to the stream, and thus filled the atmosphere in and about the house of the plaintiff with offensive odors. Testimony for the plaintiff tended to show that the presence of gas in his house affected the health of himself and of members of his family. The plaintiff and his wife both testified, under exception, that a physician, since deceased, who had been called in to attend one of their children, attributed her sickness to the gas that was in the house.22 28 There was evidence that several guests of the hotel had left it, on account of the presence of gas in their rooms and throughout the house. The plaintiff testified that he estimated a loss of profits in his business of from $700 to $800 per year; that he kept no book-account of his receipts and disbursements, and could only estimate what that loss amounted to. His wife testified that the business of the hotel had fallen off, but that it began to increase again and had increased for the last four or five years. Having given a notice that damages would be claimed, under the act of May 2, 1876, P. L. 95, down to the date of trial, the plaintiff was allowed, under exception, to testify that after the commencement of the action he erected two buildings upon his lot, to the west of the hotel building,21 and to show that tenants of those buildings had threatened to leave on account of the presence of gas therein.26 The plaintiff offered in evidence the record of a proceeding in equity, commenced by himself subsequent to the bringing of this action, to obtain an injunction against the defendant gas company, restraining it from discharging waste materials into the waters of North Mahanoy creek, at any point north of the plaintiff’s premises. That record showed that on September 28, 1884, a preliminary injunction was granted; that, after hearing on affidavits, the injunction was continued until final hearing or further order, and was still in force; and that a rule for an attachment, for contempt in violating the injunction, was pending and undetermined. The offer was objected to by the defendant. By the court: I think I will admit this offer for the purpose of showing the date, in view of the evidence already before the court, showing that the order of the court was after hearing for the defendant, as I understand Judge Green’s order; but not conclusive of the plaintiff’s right to recover: exception.19 The testimony of a number of witnesses tended to show that waste matter from the gas works was allowed to float upon the creek after the granting of the injunction. Testimony for the defendant tended to show that the only noxious smells in the plaintiff’s hotel came from the fouling of the stream by slaughter houses and privies, situated above the hotel, and by the plaintiff’s own privies; that any odor that might have come from tar or pitch, discharged from the gas works, was beneficial as a disinfectant of the smells from the other sources aforesaid, and that there was no gas in the house, as was alleged by the plaintiff; that the arrangement of the water closet, constructed by the plaintiff, was such as to produce a strong upward draft and carry into the hotel odors which otherwise would not have entered it; that no appreciable injury to the plaintiff’s business had been suffered; and that the business of the defendant had been conducted in the ordinary manner, and, since the first complaint of the plaintiff, every possible effort had been made to prevent the discharge of waste into the creek. The testimony being closed, the court, Pershing, P. J., charged the jury in part as follows: [There is another question which has been raised here as a legal point, and to which I perhaps may as well refer now as later on in my charge to you; that is, that this was a business authorized by the legislature, that it was a lawful business. The charter of the company is in evidence before you showing that they had the authority of the state for the manufacture of gas, but that this will relieve them from responsibility to a private party who is injured is not the law. The charter does not go to that extent. Under the law, and now particularly under our constitution, consequential damages may be recovered from any person or corporation who injures the property or destroys the property of another. There can be no taking of property, and no injury to property, without making compensation on the part of the corporation, although it may be armed with the authority of the state for the business which it follows. And a man’s property may be as effectually destroyed by rendering it uninhabitable, destroyed for the purpose for which he desires to use it by rendering it uninhabitable, as it would be to take hold of it and tear it down. In the one case, the act is direct, it is a taking of the property actually; in the other, the damages are consequential, — in consequence of the act on the part of the defendant charged with the offence. We have it laid down by the very highest legal authority that that which is authorized by the legislature, within the strict scope of the power given, cannot be a public nuisance. They could not be indicted for exercising the powers vested in them by the state. But it may be a private nuisance, and the legislative grant is no protection against a private action for damages resulting therefrom.] 1 [The legislature may authorize a use of property which will operate to produce a public nuisance; but it cannot authorize a use of it which will create a private nuisance, by an actual invasion of one’s premises by noxious vapors, malarial gases, or disagreeable smells, without compensation therefor. We not only have a large number of authorities outside of this state, but our own state authorities are to the same point; that is, that the trade may be strictly lawful and armed with the power of the state; the company may be protected as against the public from an indictment, but it is not protected by its charter from an action by a private party who has sustained special injury in consequence of the noxious smells, gases, vapors, etc., which may be the result of carrying on the business.] 2 I will call your attention to other principles of law as I go on, if I deem it necessary, in answering the numerous points which have been presented by the counsel on both sides. Now, what is the evidence to sustain the action of the plaintiff? .... The defendant could only be held responsible so far as it had contributed to make the premises unhealthy and. to injure the business of the plaintiff; and if it did not contribute in any degree to inflict the injury upon his person or his property, then it would not be liable at all. The position taken here by the defence is, and they have offered testimony upon that point, that the odor proceeding from gas, tar, naphtha, operated as a disinfectant of the smells that infested this houge, as they claim, from the slaughter house, garbage, and the privies; that is, disinfected those smells and rendered the premises more healthy, and that, instead of being an injury to the plaintiff, it operated as a direct benefit. Of course, if that is true, no injury was inflicted upon him by the gas company, and it could not be made responsible in damages. [There was nothing that prevented the smell proceeding from the water closets and the slaughter houses from entering the premises of the plaintiff, any more than there was to prevent the gas from entering. He has described to you the condition of his premises. Whilst we do not think Mr. Keiser was bound to erect barricades against the infliction of a nuisance upon him by other parties, yet the condition of his premises is a matter for your consideration, as bearing upon the question whether other noxious vapors, other noxious smells, did not find their way into that house, there being no more difficulty about their getting in, as claimed here by the defendant, than there was about the smell of gas getting in. It was alike open to all offensive smells and noxious vapors proceeding from that creek in that neighborhood.] 3..... [Now, having considered all this testimony produced on both sides, the question for you to determine would be whether the plaintiff has a right to recover. If you find that he has the right to recover, then it devolves upon you to fix the amount of his damages. Damages are said to be compensatory; that is, in popular language, sufficient to make a man whole, or they may go beyond that and be what are called vindictive damages; that is, a party may under certain circumstances recover what will make him whole, and in addition, what will punish the party who has inflicted the injury. The claim made here on the part of the plaintiff is for what are called vindictive damages. It is alleged that the conduct of the defendant was such as to require a jury to impose more than what would be mere compensation, to give an additional amount so as to punish the defendant. It will be for you to determine, if you find for the plaintiff, what his damages shall be, how you will assess them. It has been said, in cases of this kind, that a mere invasion of a right would be sufficient to authorize nominal damages, damages that would be less than compensation; that has been decided in a number of cases.] 4..... A number of points have been presented. The plaintiff asks us to charge you as follows: 1. If you find from the evidence that in the process of manufacturing gas at the defendant’s works large quantities of waste and refuse matter and materials were generated and produced; that said product was impregnated with the odor of gas, and other foul, noisome and offensive smells and vapors ; that the defendant emptied and discharged said product into the waters of North Mahanoy creek, and that the same floated upon and was carried by the current of said stream into, upon and through the plaintiff’s messuage and premises ; that thereby the air in and around the plaintiff’s messuage and premises was made and became corrupt, impure, foul, unwholesome and offensive, and that by reason thereof the messuage and premises of the plaintiff became and were made uncomfortable, that the plaintiff and his family were incommoded and annoyed in the use, occupation and enjoyment of the same, you will find a verdict for the plaintiff. Answer: We affirm this, if you find the facts to be as stated here; and we call your attention to what we have already given you from the authorities, that the injury must be substantial. The fact that there is some smell unavoidable in the manufacture of gas, is shown by the testimony here all around. The Supreme Court say that a certain degree of offensive odor is unavoidably incident to the business, and that must be endured by the public. This was said in a case against a gas company somewhat similar to the one we have before us. With this statement of the law we will affirm this point.5 2. If you find a verdict for the plaintiff you will then inquire: First, to what extent the plaintiff has been injured, in the use, occupation and enjoyment of his messuage and premises; and in so doing, you may take into consideration the inconvenience and discomfort, if any, suffered by the plaintiff and his family, the fact that the place was licensed as a hotel and that he carried on therein the business of an inn-keeper, the patronage and business the hotel had acquired before the committing of the wrong complained of, and the loss of patronage and business, if any, he has sustained by reason thereof; and allow him for such injury such an equivalent in damages as a fair and reasonable consideration of the testimony warrants. Answer: That we affirm, in connection with what we said in answer to the other point.6 Second, to what extent, if any, the plaintiff was injured in his health; and in so doing, you may take into consideration the nature and character of the disease, the suffering, if any, he endured, the money, if any, he expended for medicine and medical attendance; and also allow therefor such an equivalent in damages as in your judgment a fair consideration of the evidence warrants. Answer: We have already virtually said yes to this; but, so far as the expenditure of money is concerned, there is no evidence here. The plaintiff has not shown in his own or any other evidence what amount of money he expended for doctors, in consequence of sickness in his family. He does not show that he even had a physician for himself. The only evidence of having a physician was that in reference to the little girl, and there it was omitted to state what amount of money he paid to the doctor for his services. That certainly could have been in his power to have told the jury. 1 mention this, so that you will exercise your reasonable judgment in ascertaining the amount.7 3. If, upon a fair and just consideration of all the evidence in the case, you should come to the conclusion that the injury complained of and sustained by the plaintiff was characterized by wantonness, vexation, oppression or gross carelessness on the part of the defendant, then you may give the plaintiff, in addition to the damages above specified, such reasonable sum as in your judgment the evidence may warrant. In determining this question, you may take into consideration whether or not the injury complained of was continued after the bringing of the present suit; the fact that an injunction was issued by the court to restrain the defendant, and whether or not said injunction was violated by the defendant. Answer: We affirm this, calling your attention to what we have already said on the subject of vindictive damages. This is a request that you give what are called vindictive damages; damages in addition to the loss which the plaintiff has actually suffered, if you find he has suffered any loss.8 On the part of the defendant we were asked to instruct you: 1. The defendant, the Mahanoy City Gas Company, was incorporated by letters patent, dated September 21, 1874, with the right and power to erect in Mahanoy City gas works to manufacture illuminating gas to supply the streets and inhabitants of Mahanoy City with light; that the business, carried on in pursuance of and under said charter, being by law a legal and authorized business, cannot' be held in law or equity to be a nuisance, although it may occasion inconvenience and discomfort to inhabitants being in proximity to said works, by reason of the escape of gaseous and noxious smells. Answer: We have already said to you that this company had a charter, and therefore its business is a lawful business, and probably so far as the public was concerned it could not be interfered with. No indictment could lie against it for what would be called a common nuisance, a common injury to the public. But, if the plaintiff here has sustained a special damage, a damage outside of that which the general public was called upon to endure in the manufacture of gas, also calling your attention to the rule of law, that some smell is unavoidable, we could not affirm this point. We do not affirm it just as it stands here, in the broad terms in which it is put. It would depend upon circumstances.9 3. That the manufacture of gas by the defendant, as stated in the preceding point, for the purpose of supplying public and private wants, is impressed with the character of lawfulness and had the sanction of the supreme legislative power of the state ; and though the carrying on of said business within the scope of chartered rights may be injurious to private rights, and may subject private persons to injurious and disagreeable smells, the defendant cannot be held liable to pay damage therefor. Answer: We answer this in the negative.11 4. That, under the charter of the Mahanoy City Gas Company, the defendant cannot be held liable to the plaintiff for the injury complained of by him, if the business of making illuminating gas was conducted in a proper manner under the' chartered rights of the company, unless the plaintiff has shown by the evidence that the defendant was guilty of negligence in the making of gas and conducting said business, whereby the plaintiff received said injury. Answer: We answer this in the negative. We have already read to you from the authorities that while the business may be entirely lawful, yet if it is carried on so that injury results to a private individual, injury above that which is sustained by the public, he may have his action. We think the proposition is stated too broadly here.13 5. That if the plaintiff covered over the creek with planking through his lot and erected one or more water closets over said creek and connected the same with his hotel and yard, whereby the gases floating in said creek and under the planking were permitted to escape into his house, he thereby contributed to the injury of which he complains, and the verdict should be for the defendant.. Answer: We answer this in the negative.13 6. The plaintiff was bound to use reasonable care and precaution to protect his house from noxious and unwholesome smells in said creek, and if he neglected said duty and made a connection between his house and the creek, whereby the odors from the creek and his water closets passed into his house, he was guilty of contributory negligence, and the verdict must be for the defendant. Answer : As a question of law we negative this. No question of contributory negligence arises in this case.14 8. If the plaintiff knew that noxious smells entered his house, through the openings made in the culvert over the creek for a water closet, and through the opening made in the basement wall next to the creek, it was his duty to close such openings; and if he neglected to close the same, he cannot recover in this case and the verdict must be for the defendant. Answer: We answer this in the negative.16 9. The loss of profits from boarders and from casual and transient visitors is too remote and uncertain'to constitute any measure of damages in this case, and if the plaintiff has not proved any other damage, the verdict must be for the defendant. Answer: We answer this in the negative, although it presents a question of some difficulty. The evidence was admitted and I have discussed it in what I have said to you, and therefore could not consistently affirm the point now. I have examined the case, and I find that in Sedgwick on Damages which I think would authorize the admission of the testimony as you have it before you; that is, as to the loss sustained. I find also a case in our own Supreme Court, Hanover R. Co. v. Coyle, 55 Pa. 396, where a party was injured in his person and his property both, by a railroad, and the loss of his profits was ruled to be admissible. With the explanation I have already given you of the testimony which accompanies the evidence of the loss sustained; that is, that he kept no account of what he took in or what he paid out, I leave the matter for your consideration and therefore negative this point.17 —The jury returned a verdict for the plaintiff for $3,000. A rule for a new trial having been discharged and judgment entered,.the defendant took this appeal, assigning, inter alia, for error: 1-4. The parts of the charge embraced in [ ] 1 to 4 5-8. The answers to the plaintiff’s points 5 to 8 9. The answer to the defendant’s point.9 II- 14. The answers to the defendant’s points.11 to 14 16, 17. The answers to the defendant’s points.16 17 19. The admission of the plaintiff’s offer.19 21, 22. The admission of the plaintiff’s offers.21 22 26, 28.* The admission of the plaintiff’s offers.26 28
143 Pa. 293Lillibridge v. Lackawanna Coal Co. (1891)
No. 89 July Term 1889, Sup. Ct.; court below, No. 4 October Term 1888, C. P. in Equity. On August 22, 1888, G. J. Lillibridge, and John N. Lillibridge and Lucilla, his wife, filed a bill in equity against the Lackawanna Coal Company, Limited, averring that bjr a written agreement, dated March 24, 1883, made a part of the bill, the plaintiffs, with Mrs. Almira Lillibridge, demised to the defendant all the merchantable coal underlying a tract of forty-five acres in Blakely borough, Lackawanna county, the lessors being then the owners in fee of said land and coal; that the plaintiffs had since become the sole owners of the land aforesaid, and of the rights appertaining to the lessors under said agreement; that under said lease the defendant had mined out coal from one of the underlying veins, to such an extent that an open way, of great breadth, about twelve feet in height, and about two hundred feet beneath the surface of the land, had been made through said vein, from the northerly to the southerly side of said tract; that, within two years prior to the filing of the bill, the defendant had become the lessee or owner of about three hundred and fifty acres of coal, adjoining the plaintiffs’ land uporr the northerly side thereof, and was mining the last mentioned coal and carrying it through, under and across the plaintiffs’ land, by means of said open way, to its improvements for preparing the coal for market situated upon other property not belonging to the plaintiffs, thus unlawfully and wrongfully appropriating plaintiffs’ property for a road to transport said other coal; praying that, for want of an adequate remedy at law and to avoid a multiplicity of suits, an injunction might be granted, restraining the defendant from transporting said other coal through plaintiffs’ land by means of said underground way, and for general relief. By the agreement of March 24, 1883, recited in the bill, the plaintiffs and Mrs. Almira Lillibridge, parties of the first part, “ granted, demised, leased, and to mine-let, unto the ” defendant, “its successors or assigns, all the merchantable coal, together with the sole and exclusive right to mine and remove -the same, under the ” tract of land described in the bill, “ to have and to hold the coal in and under said land unto the said party of the second part, its successors or assigns, until the exhaustion thereof, under the terms of this indenture.” The defendant, by the same instrument, covenanted to prosecute energetically the business of mining said coal, and to pay to the parties of the first part certain specified royalties by the ton of mined coal, paying for at least fifteen hundred tons of coal each year, “ until such time as the coal under said tract shall become so far exhausted that it is impossible to mine so large an amount in any one year,” etc. After stipulating, further, that the party of the second part (defendant) should pay all taxes and imposts upon the coal mined, but that all taxes upon the surface and unmined coal should be paid by the parties of the first part; that, upon failure of the party of the second part to comply with certain covenants contained in the agreement, the parties of the first part, upon written notice, might “ declare this lease forfeited,” and retake possession, etc.; that the parties of the first part should have the right to direct that a reasonable amount of coal be left in pillars, as support for the surface; and that the party of the second part should have the right to take, without payment therefor, such coal as might be necessary for the making of steam, for the work of mining, ventilation, etc., the amount so taken to be “proportioned with the other tracts of land from which coal is taken by means of ” defendant’s breaker and other improvements, the agreement provided as follows : “ All and singular the grants, demises, leases and lettings, covenants and agreements hereinbefore contained, shall enure to the benefit of, and be binding upon each and every of the heirs, executors, administrators, survivors, successors and assigns, of each and every of the parties to this indenture, the same, to all intents and purposes as though they were mentioned and included in each and every of said grants, demises, leasings, lettings, covenants and agreements.” On October 25, 1888, the defendant filed a demurrer to the bill, averring as causes thereof, first, that the plaintiffs had not made or stated such a case as entitled them, in a court of equity, to any relief; and second, that for the grievances alleged in the bill there was a plain and adequate remedy at law. After argument upon the demurrer, the court, Gunster, J., on March 25, 1889, filed an opinion, setting forth his conclusions of law in substance as follows: (a) That the indenture between Mrs. Almira Lillibridge and the plaintiffs, of the one part, and the defendant, of the other part, was, in effect, not a lease or a license, but a conveyance of the coal; citing: Smith v. Darby, L. R. 7 Q. B. 716; Caldwell v. Fulton, 31 Pa. 475; Caldwell v. Copeland, 37 Pa. 427; Brown v. Corey, 43 Pa. 495; Whitaker v. Brown, 46 Pa. 197; Penna. Salt. Mfg. Co. v. Neel, 54 Pa. 9; Scranton v. Phillips, 94 Pa. 15; Sanderson v. Scranton City, 105 Pa. 469; Delaware etc. R. Co. v. Sanderson, 109 Pa. 583; (b) that by the sale and conveyance of the coal, the defendant acquired along with it the right to use the chamber or space enclosing it, for any purpose it might see fit, until the coal was exhausted; citing: Proud v. Bates, 34 L. J. Ch. 406; McSwinney on Mines, 69, 356, 360; Hamilton v. Graham, L. R. 2 Scotch & Div. App. Cas. 166; Eardly v. Granville, L. R. 3 Ch. Div. 826; Ramsey v. Blair, 1 App. Cas. 701; Whitaker v. Brown, 46 Pa. 199; Sheppard’s Touchstone, 100; distinguishing Dand v. Kingscote, 6 M. & W. 174; Durham etc. Ry. Co. v. Walker, 2 Q. B. 940 (42 E. C. L. R.), and citing, as to the distinction between easement and copy-hold cases, and cases of separate tenements divided from each other vertically: Lewis v. Branthwaite, 2 B. & Ad. 437 (22 E. C. L. R. 186); Keyre v. Powell, 2 El. & Bl. 132 (75 E. C. L. R. 132); Bowser v. Maclean, 2 DeG., F. & J., 415; and (a) that, there being no averment that the defendant was interfering with the subjacent or superjacent soil, the transportation of foreign coal through the way created in taking out coal under the indenture, was not an unlawful or wrongful appropriation of the property of the plaintiffs, but a legitimate use by the defendant of its own property. A decree was then entered sustaining the demurrer and dismissing the bill at the costs of the plaintiffs; whereupon the plaintiffs took this appeal, assigning said decree for error.
143 Pa. 308Estate of Reber (1891)
No. 197 July Term 1890, Sup. Ct.; court below, number and term not shown. On January 7, 1889, the account of Reily L. Fisher, executor of the will of Thomas B. Reber, who died on August 27, 1887, was called for audit, when Elizabeth Reber, the widow of the testator, proved for allowance out of the estate in the executor’s hands, a note, not under seal, made by the testator January 27, 1873, as follows: “ I promise to pay to my wife Elizabeth, or order, the sum of seventeen hundred and twenty-five dollars on demand, with, lawful interest from this date until paid; without defalcation, value received.” On November 12, 1889, the auditing judge, Schwartz, P. J., filed an adjudication as to said claim as follows : The claim is allowed, with interest from August, 27, 1887, to date, now amounting to $1,950. In the court’s opinion, this note should not pay interest during the testator’s lifetime. True, the presumption is that the interest on a note is payable from the time it demands interest, in ordinary cases. Between husband and wife it is otherwise. In such cases, the presumption of law is that they lived off such interest, and that they consumed it from year to year; and this presumption may be rebutted only by showing that the husband and wife lived apart, each upon his or her own income. —A distribution having been reported accordingly, the claimant filed an exception. After argument, the exception was dismissed and the adjudication confirmed. Thereupon, the exceptant took this appeal, specifying that the court erred in not allowing interest upon said note from its date until paid.
143 Pa. 311Gehr v. Fisher (1891)
No. 50 January Term 1891, Sup. Ct.; court below, No. 98 May Term 1887, C. P. On April 29, 1887, Mary Gehr and others, heirs at law of Baltzer Gehr, deceased, brought ejectment against Austin Fisher and others, for the undivided one third of two hundred and thirty-one acres of land in Maxatawny township. The defendants pleaded not guilty. In a prior action of ejectment for the same property, Baltzer Gehr, the plaintiffs’ father, recovered a verdict and judgment: Sitler v. Gehr, 105 Pa. 577. The defendants in that action afterward brought ejectment against the heirs of Baltzer Gehr, who had died in the meantime, and recovered judgment therein: Gehr v. Miller, 20 W. N. 387. In each of those actions, as well as in the present, the question for determination was whether or not Baltzer Gehr was one of the heirs of Catharine Geehr, who died May 10, 1877, intestate, unmarried and without issue, seised in fee of the land in question. At the trial, on December 2, 1889, testimony was presented substantially to the same effect as in Sitler v. Gehr, supra. Catharine Geehr’s grandfather was Balser Geehr of Berks county. The plaintiffs claimed that their father, Baltzer Gehr, who was the son of Joseph ,Gehr, formerly of Lancaster county and later of Crawford county, was a nephew of Balser Geehr of Berks county. If this were the fact, the plaintiffs would have title to the undivided one third of the land in dispute. To prove it, the plaintiffs made offers to show by the testimony of Baltzer Gehr,1 Solomon Gehr,2 and Samuel Gehr,3 taken in the first ejectment, that the mother of Baltzer Gehr, and several other members of his family, all of whom were deceased, had made declarations, prior to the commencement of this controversy, tending to show that Balser Geehr, of Berks county, was the uncle of Baltzer Gehr of Crawford county. Each of these offers was objected to upon the ground that, before such declarations could be admitted, it must be proved by evidence aliunde, to the satisfaction of the court, that the declarant was connected with the family of Balser Geehr, of Berks county. In each instance the court overruled the objection and admitted the testimony; exceptions.1 to 3 Cyrus Gehr, a grandson of Baltzer Gehr, being upon the witness stand, the plaintiffs proposed to prove by the witness that he had conversations with Baltzer Gehr, now deceased, about the time of the late civil war? long before this dispute originated, and before Kitty Geehr died, and that in those conversations the said Baltzer Gehr described to the witness his family, told him that lie was named after his uncle Baltzer Geehr, a brother of his father, Joseph Gehr, who lived near the Longswamp, in Berks county, Pennsylvania, and who had been a gunsmith by trade; that at the time of the whiskey insurrection he had gone to the camp with his father and mother and hi's uncle Baltzer, after whom he was named; and that the said Baltzer Gehr also talked to him about his other uncles, brothers of Baltzer Geehr, of Berks county, called Philip and Samuel. Mr. Green: The defendants object (1), on the ground that it is hearsay evidence of the real plaintiff himself in this case, and is intended to supplement Baltzer’s deposition in his lifetime, notwithstanding said Baltzer Gehr testified fully in reference to his relationship in the deposition already read in evidence: (2), the testimony is generally incompetent. By the court: We think we will admit this and give the defendant an exception.4 The witness then testified to the matters set out in the offer. Among the persons whose declarations, as to the existence of a relationship between Baltzer Gehr, of Crawford county, and Balser Geehr of Berks county, were shown by the plaintiffs, was John Gehr. Solomon Gehr, of Crawford county, the witness who testified to the declarations of John Gehr, stated that this John Gehr was the father-in-law of the witness and was a son of Jacob Gehr, and a nephew of Baltzer Gehr; that he was born in 1784 and died in 1853. Asa Gehr, another witness for the plaintiffs, testified that Jacob Gehr, an uncle of the witness and a brother of Baltzer Gehr, lived in Crawford county, about twelve miles west of Meadville, and had a sou named John, and testified further as follows: “ Q. Did airy of the other brothers of your father have a son by the name of John? A. They had. Q. Which one? A. They called him Captain John Geehr. Q. Which one of your father’s brothers had a son John besides Jacob? A. Baltzer Gehr. Q. That John is living yet? A. Yes, sir.” The defendants, having called Jacob C. Geehr, who was grandson of' Philip Geehr, a brother of Balser Geehr of Berks county, made the following offer: The defendants offer to prove by the witness that about 1846 or 1847 he visited Meadville, in Crawford county, where he remained about a year; that while there with his relatives on his mother’s side, the Smull family, he became acquainted with a number of the Gehrs; that he attended the funeral of Jacob Gehr, who lived west of Meadville twelve or fourteen miles, and that while at the funeral he met John Gehr and Joseph Gehr; that John Gehr was a person between fifty and sixty years of age, whom he met and had a conversation with him in reference to their relationship; that he explained to John Gehr that he had a grandfather in Berks county by the name of Philip Geehr, and that Philip Geehr had a brother by the name of Balser Geehr, and also a brother by the name of Samuel Geehr, who died long ago; and that John Gehr, after having heard this statement of the relationship of the witness, said that their family were not related to any of those people: these are offered as declarations of John Gehr, who is deceased, and are directly contradictory of what Solomon Gehr has testified as having heard John Gehr say; it having already been testified by Asa Gehr, plaintiff’s witness, that Jacob Gehr lived at that place, and had two sons, John and Joseph Gehr, and lived about twelve miles west of Meadville, and there was no other John Gehr excepting Captain John Gehr, who is still living, and a son of Baltzer Gehr, of Crawford. Plaintiffs object, because the offer is irrelevant, immaterial and indefinite. By the court: Objection sustained; exception.5 Baltzer Gehr having testified, in his deposition, that his father, Joseph Gehr, who died about 1798, aged between fifty and sixty years, was the brother of Balser Geehr, of Berks county, and was the youngest of that family, the defendants made an offer, designed to discredit his testimony by showing that his father must have been much older than Balser Geehr’s sister, Mrs. Michael Croll. Joseph Kutz had testified that the grandfather of the witness was a brother of Balser Geehr, and had two sisters, Mrs. Croll and Mrs. Bast, whose first names the witness was unable to give, but whose husband’s names were Michael Croll and Dewalt Bast, and that Mrs. Croll was buried at the Smoke Church near Hamburg. Jonas Kohler, another witness, had testified that he knew a certain Mrs. Croll, who died in 1832 and was buried at the Smoke Church, now St. Paul’s; that she was called Margaret Croll, and the witness had heard her called Mrs. Michael Croll. The offer of the defendants, above mentioned, was as follows: Mr. Snyder: It having been testified by Joseph Kutz that the sister of his grandfather, Margaret Croll, wife of Michael Croll, lived in Greenwich township and was buried, as much as he knows, at the Smoke Church, near Hamburg, and it having been further testified by Jonas Kohler that Margaret Croll, wife of Michael Croll, was buried in 1832 at the church of Lebanon with the nickname of Smoke Church, now St. Paul’s, the defendants propose to prove that the said Margaret Croll was buried in 1832, at a church within two miles or two miles and a half of Hamburg, and propose to give in evidence the record on the tombstone; this for the purpose of showing that she was Mrs. Margaret Croll, wife of Michael Croll, the date of her death and age, and that there is no tombstone showing any such burial at the Smoke Church. Mr. lliester: The plaintiffs object, (1) because the tombstone, whose inscription it is proposed to read, has not been shown to have been the tombstone of Mrs. Croll, sister of Baltzer Geehr; (2) because the evidence is irrelevant and immaterial. By the court: Objection sustained; exception.6 Baltzer Gehr had testified that among the brothers of his father, Joseph Gehr, were Andrew, John and Paul; that his father lived on Paul’s land in Cocalico township, Lancaster county; and that the witness did not recollect the name of his paternal grandfather. It had been shown by other testimony that the father of Balser Geehr, of Berks county, was Conrad Geehr. For the purpose of showing that Joseph Gehr and his brothers Andrew, John and Paul, were sons of John Gehr, and therefore could not be brothers of Balser Geehr, the defendants made the following offer: Mr. Snyder: Baltzer Gehr testified that his father’s name was Joseph Geehr and that he lived in Cocalico township, Lancaster county, having prior to 1782 lived on his brother Paul’s land, and that his father had three brothers, Andrew, John and Paul, and two sisters, Mrs. Ginter and Catharine, the defendants now offer: (1) A mortgage dated November 21, 1757, John Geehr, Sr., of the county of Lancaster, of the one part, and Paul Geehr and Andrew Geehr, both sons of the said John Geehr, of the second part. (2) A mortgage dated November 22,1760, from John Gehr, Jr., and George Gehr, single men, to John Gehr, Sr. (8) A deed dated January 12,1769, from Thomas Cadwallader to Paul Gehr, conveying lands in Cocalico township, Lancaster county. (4) Deed dated April 21, 1774, from John Gehr and George Gehr, sons of John Gehr, conveying lands to Joseph Gehr. (5) Deed dated March 28, 1783, from Francis Brumbach and Elizabeth, his wife (one of the daughters of Paul Gehr), releasing her interest in lands of her father, Paul Gehr, in Cocalico township, Lancaster county, to Joseph Gehr, of Cocalico township. (6) Next, the will of Paul Gehr, dated November 1, 1773, proved November 29, 1773, directing inter alia that this farm should be rented out by his executors and the rent used to support his family until after his two youngest sons should arrive at age, and then directing an appraisement to be taken-'and the farm to be given them upon certain conditions. (7) The account of the executors, filed April 13, 1790, showing that the farm was rented up to 1790, and the account showing pajunents to Joseph Gehr, under date of 1779, for taxes and for expenses at the valuation of the real estate. (8) Deed dated March 25, 1790, from the executors of Paul Geehr and his sons, on their arrival of age, to show that from the date of 1773, to 1790, there was a farm in Cocalico township, Lancaster county, known as “ Paul Gehr’s farm,” the title remaining in his estate. (9) Also, assessment lists to show that there was but one Paul Gehr assessed in Cocalico township, Lancaster county, fronr 1769, the date of the conveyance, to 1790, and that between 1773 and 1790 there is no assessment to Paul Gehr, he being dead, as shown by the will, in 1773. (10) Also, the assessment of Earl township, Lancaster county, which adjoins Cocalico township, to show that there was but one Paul Geehr in Earl township, and was, presumably, the Paul Geehr mentioned in the deeds and mortgages. (11) Also the signatures of Paul Gehr to the will and satisfaction of the mortgage, to show that they were one and the same person. (12) Also the will of Peter Gehr, dated May 1, 1763, bequeathing ten pounds to each of the children of his brother John, and designating them as seven, and naming Andrew as the eldest son: This is for the purpose of identifying the Joseph Geehr mentioned by Baltzer Gehr as his father, and the Paul Gehr mentioned as his uncle, and to establish that the John Gehr, Andrew Gehr and Paul Gehr, mentioned as brothers of Joseph in Baltzer Gehr’s deposition, were the Joseph, the Paul, the Andrew and the John Gehr referred to in the several papers offered, and that they were sons of John Gehr, Sr., of Lancaster county, and not of Conrad Geehr, who was the father of Balser Geehr, of Berks. Mr. Hiester: Plaintiffs object to the offer as being generally irrelevant and incompetent: particularly, (1) because Peter Gehr, who made the will, is not shown to be a brother of John Gehr, described in the deeds; (2) because Joseph Gehr, described in the deeds, is not shown by any declarations to be a brother of any other person named in the deeds; (3) because none of the persons named in deeds, or will, or tax lists are identified as the persons of the same name named by any of the plaintiffs’ witnesses; (4) because absence of a name from a tax list is not competent evidence that such a person did not reside in the district; (5) because the plaintiff, Baltzer Gehr, who was born in 1782, testified to having seen his father’s brother Andrew, while the Andrew Gehr of the records must have died prior to 1772, according to the records themselves; (6) because the records offered do not contradict the plaintiffs’ testimony, and, even if they were admitted, they would not be sufficient to justify the jury in concluding that the relationship testified to by plaintiffs’ witnesses is not established. By the court: We see no substantial difference between this offer and the one ruled upon by the Supreme Court. We, therefore, sustain the objection and give the defendant an exception.7 Mr. Snyder: We make the same offer with this amendment: We propose to strike out the will of Peter Gehr and add a certified copy of the records of the Orphans’ Court of Lancaster county, showing that on the fifth day of March, 1776, Andrew Geehr, a minor son of Paul Geehr, late of Cocalico township, deceased, being above the age of fourteen years, came into court and selected John Geehr as his guardian; this for the purpose of showing that there was an Andrew Geehr, son of Paul Geehr, of mature years when Balser Geehr was a child in that place, and as explaining who he may have meant by his uncle Andrew. Mr. Hiester: We make the same objection as before, with the exception of that as to Peter. By the court: We will make the same ruling; exception.8 The testimony being closed, the case was submitted, Ebmentbout, P. J., to the jury, who returned a verdict for the plaintiffs for the one third of the land described in the writ. A rule for a new trial having been dischax’ged and judgment entered, the defendants took this appeal, assignixig for error : 1-4. The admission of plaintiffs’ offers.1 to 4 5-8. The refusal of defendants’ offers.5 to 8
143 Pa. 323Reed v. Horn (1891)
No. 103 January Term 1891, Sup. Ct.; court below, No. 37 April Term 1889, C. P. On April 3, 1889, William H. Reed brought assumpsit against Josiah F. Horn, to recover the sum of $650, alleged to have been paid by the plaintiff to the defendant, through a mutual mistake, on the partition of a tract of land between them. Issue. At the trial, on January 23, 1890, the plaintiff being called to testify in his own behalf, his counsel made the following offer: “We propose to prove by the witness on the stand that the plaintiff and the defendant owned as tenants in common, a farm in Packer township, Carbon county, Penna. “ That in the fall of 1883, they agreed by parol to make partition between them; and that in pursuance of said pa rol agreement they employed Francis Moyer, a surveyor, to run the lines, and that in making the survey they tried to make the partition as nearly equal as they could. “That it was agreed and understood between the plaintiff and the defendant that if one purpart should contain more acres than the other, the one who would take the purpart containing’ the greatest number of acres should pay the other for the excess, at the average price per acre that the land cost them. “ That, after the survey was made, it was agreed that the party who would take the purpart without the buildings was to have half of all the crops that grew on the place, including hay and straw; and that it was agreed about the timber, and the privilege of staying, and the other privileges, as set forth in the agreement dated October 30, A. D. 1883, between the parties to thist suit, except the right of laying pipes; that it was agreed between them that the land should be divided according to the survey. “ That, after the dividing of the land, they agreed that each one should make a valuation of the buildings, as all the buildings were on the eastern purpart and none on the western; that, if they could not agree, they would “ try to come together ” without regard as to who would take the eastern or western part of the farm; that the eastern purpart should be worth the price of the buildings more than the western purpart, and that the land was valued by them at an equal value in the two purparts not including the valuation of the buildings; that, several days afterwards, the plaintiff and the defendant met, and defendant asked plaintiff whether he had his paper with the valuation on, and he said, ‘Yes ’; that the plaintiff got his paper out, and they compared valuations and found that they corresponded exactly, each one having valued all the buildings at $1,300. “ That the plaintiff then said, ‘ We are alike, we have nothing to decide;’ whereupon the defendant replied, ‘Yes, but I will not take the old place,’ meaning the eastern purpart with the buildings; to wnieh the plaintiff replied, ‘ Then I suppose I will have to take it; ’ That, soon thereafter, the defendant sent word to the plaintiff to come over; that he came over and they began talking about this division; that plaintiff said to the defendant that since they had valued the buildings at $1,300 and the defendant did not want the purpart with the buildings on, he, the plaintiff, supposed he would have to take it and pay to the defendant the $1,300; that they then put these facts down upon a piece of paper, and on the same day drove down to Francis Moyer, Esq., and had the agreement dated October 30, 1883, drawn, in which there is a mistake, as it should have provided for the payment of half of $1,300, instead of the $1,300, to the defendant. “ That, on the same day, the plaintiff paid to the defendant the sum of $250, and was asked to give a note for the balance; that on the following evening the defendant came to the plaintiff with a note for the balance $1,050, drawn up ready to sign, which the plaintiff signed and has since paid. “ That the plaintiff, as lie was the owner of the undivided half interest in the farm and improvements, should have paid only one half of the value of the buildings, in making a partition, and not the full value, to the defendant; which mistake the plaintiff did not discover until sometime after all this money with interest had been paid. “ That sometime after the plaintiff discovered his mistake, he had a talk about this matter with the defendant, and said to him, ‘Lot us figure over it;’ that plaintiff told-the defendant that they had agreed upon a division of the land and a valuation of the buildings, to which defendant replied, ‘Yes; ’ that plaintiff told the defendant that one half of the buildings belonged to him, and if there was no mistake they must have valued the buildings at $2,600 instead of $1,300, to which the defendant replied, ‘No, we did not value them at $2,600, we only valued them at $1,300, as the full value; ’ that plaintiff then told the defendant that he should not have paid him $1,300, but that he should have paid him only one half of $1,300, to which the defendant replied that ‘ he had never figured over it.’ This conversation was in the presence of plaintiff’s wife, who said to the defendant, ‘ You are figuring over it now, and you can see that there is a big mistake,’ to which the defendant replied, ‘ Yes; ’ that the plaintiff then said to the defendant that they had done all this to save expenses, to which the defendant replied, ‘Yes.’ “That the plaintiff would not have executed the written agreement, had he known at the time that, after an equal partition was made of the real estate and the valuation of the buildings as agreed upon, the defendant would only be entitled to $650 instead-of $1,300. “We propose to follow this up by other evidence that since this mistake has been discovered, the defendant has said to different parties that the land was divided and the buildings valued as stated in the offer, and that if it had been the other way and defendant had been beaten, he (the defendant) would never have said anything about it, and if defendant had paid the money to plaintiff, he (the plaintiff) would not have paid it back either. This is for the purpose of showing the admission by the defendant of a mistake in the agreement, and that the same was mutual.” To this offer the defendant objected: 1. To all evidence proposed by the offer, as to what occurred between the parties prior to the signing of the agreement. 2. Also, to all evidence of valuations and conversations between the parties before the signing of the contract. 3. To any parol evidence to change, alter or amend the written contract offered in evidence by the plaintiff. 4. To all subsequent conversations between the parties themselves, after the signing and execution of the contract ; and to all declarations alleged to have been made by defendant after the signing and execution of said contract. 5. The witness on the stand having stated that the consideration of $1,300, was fully paid by him to Horn in the fall of 1884, and that the contract was fully executed between them, and in pursuance thereof a deed was made by plaintiff to defendant for the portion allotted to him, all of which were voluntary acts on the part of the plaintiff, he is estopped by his own acts and cannot reform the contract and deed. 6. It is incompetent for the plaintiff to offer any testimony on his- alleged mistake, inasmuch as it appears from his offer that he signed and executed the contract and deed voluntarily, and without any duress, constraint, or fraud. T. The whole offer of the plaintiff is objected to as incompetent, and immaterial. By the court: Offer admitted; exception.1 The plaintiff testified at length in support of the offer. He was corroborated by the testimony of his wife as to a conversation between the plaintiff and defendant, in her presence, sometime in the spring of 1888, soon after the plaintiff, as was alleged, first discovered the mistake; and somewhat by the testimony of other witnesses as to admissions and declarations made by the defendant. Francis Moyer, the surveyor and scrivener, testified, as to the survey for the division of the land, that the two pieces were 'to be as nearly equal as he could make them, and that it was the purpose, the one to take one piece, and the other the other piece’; that when the parties came to him they had agreed upon the terms, and had appraised the buildings on the eastern purpart at $1,800, which he called the “ rausgeldt ” or boot-money. The defendant testified that there was no mistake in the matter of the $1,300, the appraised value pf the farm buildings; that the division of the land was not made to equalize the value of the respective portions, and that the $1,300 was the “ over-money ” agreed upon as the difference between the values of the two purparts, with the buildings on the plaintiff’s tract. The written agreement, under seal, between the plaintiff and defendant, dated October 30, 1888, was put in evidence, showing, inter alia, that the plaintiff agreed to retain and keep the eastern purpart with the farm buildings thereon, and the defendant the western purpart, with certain growing and cut timber on the eastern part, and certain privileges of egress and ingress for the purpose of ditching and laying pipes, etc., etc.; “ the said William H. Reed further agrees to pay unto the said Josiah F. Horn the sum of thirteen hundred dollars, lawful money, etc., as follows: two hundred and fifty dollars down and the balance or remaining ten hundred and fifty dollars, at or upon the first day of April 1884.” It was further shown that the $250 dollars hand money was paid, that the plaintiff and defendant exchanged deeds for their respective portions on December 8, 1883, and that after-wards the note given for $1,050 was paid off and discharged. At the close of the testimony, the court, Dreher, P. J., charged the jury: The principal item of claim on the part of the plaintiff in this case is that for $650, which he alleges he paid to this 'defendant under a mutual mistake between them in relation to the division of their property. As you have heard from the evidence, these two parties in 1883 were the joint owners, or tenants in common, of a farm in Packer township, containing something over 260 acres. They also owned, as joint owners, the stock upon that farm, farming utensils, crops they had raised. In the month of October, 1883, they determined between themselves to divide this farm; and, as they have both' said, sent for a survejmr, with the view of having a division line run so as to equally divide it in quantity; that is, that each part after being divided should, as near as possible, contain the same number of acres. The surveyor came and ran the line. These parties made a division of the farming utensils and the stock and some of the crops, perhaps all of them; indeed everything, all, as I understand it, of the personal property that they owned. Having done that, they went to the scrivener, Squire Moyer, who was also the surveyor, and on the thirtieth day of October, 1883, had him reduce to writing their final contract or agreement. By that written contract the line of division was fixed. There are some stipulations as to the quantity [of timber] that the one holding the west half was to have off the piece called the east half. So, in relation to the laying of pipe for taking water on the western part. I believe I am correct in that division. And in that agreement it is stipulated that Peed should pay to Horn $1,300. Now, that written agreement is plain upon its face, easily read- and easily understood. There is no ambiguity about it. And this plaintiff now claims that the stipulation contained in that contract, that he was to pay $1,300 difference, was a mistake ; a mistake on his part, and, he alleges, also on the part of Horn. I have said to you that this written agreement is plain in its terms and easily understood. The presumption is that when parties have been in negotiation and finally reduce to writing their contract, all their prior negotiations are merged in that contract. [And where the paper is plain, unambiguous, the party alleging mistake must show, by clear, certain, unambiguous evidence, that the mistake was made.] 5 If this were not the rule of law, there would be but little use in reducing contracts to writing. The plaintiff alleges that his mistake grew out of the fact that he and, as he alleges, Horn, took the whole value of the buildings upon that property, agreed to their valuation, as the amount which he was to pay Horn, when, in point of fact, they were both mistaken, and that all he should have paid was $650, the one half of the value of the buildings. The plaintiff’s allegation, as you know, is that they had divided the land, and by the terms of their agreement had equalized the value of the two properties, without regard to the buildings, between themselves, and the only thing left after that was to value the buildings ; and that the amount at which they should fix the valuation of the buildings, should be added to the eastern part, or old place, and that should be worth that much more than the other. Now, if such was the understanding between both these parties, and they had divided everything except the buildings, equally according to their own arrangement and understanding, and they then simply valued the buildings on the old place; or, if they intended to make an equal division of the properties, of course there would be to pay, by the party accepting the part where the old buildings were, simply the one half of the valuation of it. [Now, was there a mistake when they entered into this written agreement based upon a mutual mistake between these parties? Because, they must both have been mistaken before this plaintiff can recover. My recollection is, that the plaintiff says that when the two parties met the next day, or within a few days after they had fixed the value on the buildings, Horn said to him he wouldn’t take the new place but he would take it if the defendant took the old place; that Horn would take the new place if he, Reed, would take the old place and pay Horn $1,300. Horn says that the $1,300, was to be the difference between the two places; that he was to receive the $1,300. Whatever may have been the conversations between these parties, prior to the time when they came to a final agreement when it was agreed which should take the old place and which the western place, were merged in this final arrangement they made. So that your attention must be directed to what these parties did agree to, when Reed agreed to take the old place and Horn the new one. Were they then both of the mind, that the party who took the old place was to take the buildings, and that the buildings were to be valued simply at $1,800, as the property of the two owners ? If they were both of that mind at the time, then there was a mistake made, because each owned one half of these buildings. If, on the other hand, the agreement and understanding was that Reed was to pay $1,800, as the difference between these two properties, and there was no mistake on the part of both, then the plaintiff cannot recover. What did Reed understand, and what did Horn understand as to their respective rights? Did they enter into the valuation of these old buildings, with the view to determine what they were worth, and that the difference should be paid by the one who took the old place, — the difference in value of the places after adding the value of the buildings to it — while they fixed no value on the farms, but meaning that the old place should be worth as much more than the new place as the buildings were valued by them? If they intended that, and that was the basis of their contract, then clearly there was a mistake when Reed paid the $1,300. Horn says there was no mistake on his part, and that he was to receive the $1,300.] 4..... I do not know, gentlemen of the jury, that it is necessary for me to say anything further than to answer the points that have been presented. The plaintiff Reed, by his counsel, has asked us to charge you: 1. That, if the jury find from all the evidence in the case that the land and farming stock were divided between the plaintiff and the defendant; and that they agreed to put a valuation upon the buildings, and that what the buildings were worth the old place would be worth that much more than the new place; and that Reed then paid to Horn the full valuation of the buildings, to wit: $1,300, when he should have only paid half of that amount; and if the jury further find that there was a mistake made in said payment, to wit, $1,300, and that such mistake was mutual between the parties, then Reed, the plaintiff, is entitled to recover $650, with interest from the time he paid Horn the last money. Answer-: That proposition I affirm. 2. If the jury find from the evidence in the case, that the plaintiff paid to the defendant one half of $1,300, in a mistake, and that the mistake was mutual between the parties, then all the testimony bearing upon the question of the value of the land owned by either of the parties would have no bearing upon the issue trying, and the jury should disregard it. Answer: That I also affirm. Defendant has presented to us several points in which we are asked to charge you: 1. The uncontradicted evidence in this case being that the plaintiff paid the defendant the $650 for which this suit is brought, voluntarily and without any constraint, duress or coercion, he cannot recover it back in this action. Answer: Negatived. 2. The uncontradicted evidence in this case being that the plaintiff paid the defendant the $650 for which this suit is brought, voluntarily and without any constraint, duress, coercion or fraud, and that the defendant consistently with conscience received it, the plaintiff cannot recover it back in this case. Answer: Negatived. 3. If the jury find that the plaintiff paid the defendant the $650 for which this suit is brought, voluntarily and without any constraint, duress, coercion or fraud, in pursuance of the contract between them in evidence, and with full knowledge of the facts and circumstances of the subject matter of the contract, the plaintiff cannot recover it back in this case. Answer: Affirmed. 4. If the jury find that the plaintiff paid the defendant the $650 for which this suit is brought, voluntarily and without any constraint, duress or fraud, and in pursuance of the coil-tract between them, and that the terms of said contract were fully carried out, and that deeds passed between the parties for their respective portions of the farm, and that the plaintiff acquiesced in said executed contract and deeds of division for a period of three years and upwards, the plaintiff cannot recover it back in this case. Answer: Negatived.2 5. The evidence of the plaintiff discloses no mistake of fact between the parties, but simply a mistake in calculations on his part, and that he paid the $650 voluntarily, without constraint or fraud. The plaintiff therefore cannot recover back the money in this suit. Answer: Negatived. 6. Before the executed contract in this case can be reformed, changed or altered by parol testimony, the plaintiff must satisfy the court by evidence that is clear, precise and indubitable that there was a mutual mistake at the time of the making of the contract. Answer: Affirmed. 7. Under all the evidence in the case, there can be no recovery of the $650 claimed by the plaintiff. Answer: Negatived.3 [As I have said to you, the burden rests upon the plaintiff to satisfy you by clear, precise and indubitable evidence that there was a mistake when that contract was made, by which the plaintiff agreed to pay $1,300, and that that mistake was a mutual one, a mistake on the part of both parties.] 5 If that is proven, by the kind of evidence that I have already said to you is necessary for the plaintiff to produce, then the plaintiff would be entitled to the amount of $650, with interest. If the evidence fails to satisfy you beyond any doubt that there was this mistake, then you should not allow the plaintiff for the $650. ' —The jury returned a verdict in favor of the plaintiff for $650, without^ interest. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal and assigned for error: 1. The admission of the plaintiff’s offer.1 2, 3. The answers to the defendant’s points.2 3 4, 5. The portions of the charge embraced in [ ] 4 5
143 Pa. 338Wagner v. Dwelling-House Ins. (1891)
No. 67 July Term 1890, Sup. Ct.; court below, No. 895 May Term 1889, C. P. On April 29, 1889, J. & W. Wagner brought assumpsit against the Dwelling-house Insurance Company of Boston, filing a statement of claim averring in substance as follows: That on November 10, 1885, the defendant company issued a policy of insurance insuring the plaintiffs against loss or damage by fire or lightning to the amount of $3,950 on certain property specified as set forth therein, for the period of three years, a copy of said policy being annexed to the statement; that on October 30, 1888, a fire occurred, and said plaintiffs’ dwelling-house and family wearing apparel and family provisions therein were destroyed, and by reason thereof said plaintiffs suffered a loss and damage to the amount of $1,638.21; that defendant was immediately notified of said loss, and such proofs of loss as were deemed necessary were made out and .delivered to defendant on November 20, 1888; that on December 2, 1888, plaintiffs received a notice from defendant stating certain matters (set forth in the statement) wherein it was alleged that the proofs of loss were insufficient; that, upon the request of plaintiffs, the defendant returned said proofs, and on December 13, 1888, amended proofs of loss were delivered to said defendant, at its branch office in Towanda, Pa., and the same day were forwarded to the defendant at Boston, with notice that “ any other information that may be required will be furnished on call and considered a part of these proofs; ” that “no other or further complaint was made, nor information asked by said defendant from said plaintiffs, in relation to the circumstances of the fire aforesaid, or the loss and damage thereby suffered; but, on or about the first day of February, 1889, said defendant, by its duly authorized agent, W. M. Melchert, came to and upon the premises in the township of Franklin, Bradford county, Pa., where said fire occurred, and where the loss and damage to said plaintiffs was suffered, and then and there compromised, adjusted and settled with said plain tiffs, their claim of $1,638.21 for the sum of $1,520.10, under an agreement with said plaintiffs that said sum should be paid them by defendant within a week or ten days thereafter, in full satisfaction of their claim for their loss and damage aforesaid. Yet said defendant, disregarding,” etc. The defendant company filed an affidavit of defence admitting the issuance of the policy, the receipt of the first proofs of loss and the return thereof, and the receipt of the amended proofs, wherein the sum claimed from the defendants was $1,638.21; but denying that no other or further complaint was mad.e or information asked for by it relative to the loss or damage claimed to have been suffered by said fire; averring, on the contrary, that “on February 20, 1889, another proof of loss was asked for by it through its agent, W. M. Melchert, and one was executed and given by said plaintiffs to said agent, wherein the amount of said plaintiffs’ claim as set forth was $1,520.10,” and said proofs of loss was delivered to defendant; that plaintiffs thus admitted that the amount as claimed by them in their first proofs of loss was false; that defendant did not object to the proofs of loss last mentioned, but alleged that said proofs were not furnished in season, as required by the terms and conditions of the policy, and denied that said W. M. Melchert, in behalf of the defendant or himself, compromised and adjusted the plaintiffs’ loss as set forth in their statement of claim; and averred, further, that as the plaintiffs’ loss was not payable, under the terms of the policy, for ninety days after the final proofs of loss were received, to wit, May 21, 1889, the plaintiffs’ suit was brought prematurely. At the trial, on April 7, 1890, the plaintiffs offered the first proofs of loss, the letter from the defendant to them in reply pointing out the defects, and the amended proofs, for the purpose of showing that the defendant had notice of what property was lost and the amount claimed therefor; this to be followed by evidence showing the value of the property lost. Objected to. By the court: Offer admitted; exception.1 John Wagner, called on behalf of the plaintiffs, testified to the making and sending of the first and amended proofs of loss, and to the visit of the defendant’s adjusting agent on February 20, 1889: “Q. State everything that he did? A. He sat right down and figured, and made that offer. That was the only offer he made, $1,520.10. Q. Did you accept the offer right away ? A. No, sir, I didn’4;. Q. How long was he there ? A. Oh, I don’t know. He might have been there a couple of hours. Q. Did he talk German to you ? A. Yes, sir, he did. Q. Did he tell you where he was from? A. He told me where he was from, and I told him where I was from. Q. When did you finally agree to accept the $1,520.10? A. Well, he had his horse before the house, ready to start, and I hadn’t talked with him yet about it, at all, that I would take that, and my brother said to me, ‘ We had better take it than to have a lawsuit about it.’ And I said, ‘ Well, I don’t know but we had.’ And we went to the house, and he had a paper there and he had us sign it. Q. He had you sign a paper? A. Yes, we had to sign a paper. Q. Did you sign the paper before, or after you had agreed to take the $1,500 ? A. Just before he started away. Q. Had you consented to take the $1,520.10 before you signed the paper? A. Well, I don’t understand you light. Q. Had you agreed with him that you would take the $1,520.10? A. Yes, sir. Q. Was that agreed to before you signed the paper ? A. Yes, sir. Q. Did he tell you when you would receive your money ? ” Mr. Mercur: “We object, that by the terms of the policy of insurance, the company are allowed ninety days to pay, after the receipt of satisfactory proofs of loss; that the agent had no power to waive any conditions of the policy as to the time of payment, and that if he stated to the insured that it would be paid within a month or ten or twenty days, it was not binding.” By the court: “We think that an adjuster might have power to agree that it should be paid at once, as one of the inducements to reduce the amount to be paid, and as a part of the terms of compromise. Objection overruled ; ” exception.8 Mr. Wood: “Q. When did he say you would get your money? A. He told me in two weeks. Just as quick as he could get home, he said. He said that would be about two weeks. Q. But the money didn’t come ? A. No, sir.” Further testimony was adduced, as shown in the opinion of the Supreme Court. The policy of insurance put in evidence contained the following conditions: “ The amount of loss or damage to be estimated according to the actual cash value of the property' at the time of the loss, and to be paid ninety days after notice and due and satisfactory proofs of the same shall have been made by the assured and received at the company’s home office at Boston, Mass., in accordance with the terms and provisions, of this policy hereinafter named.” There was also the usual condition as to title and against encumbrances, and the following: “ No act or omission of the company or any act of its officers or agents shall be deemed, construed or held to be a waiver #f* a full and strict compliance with the foregoing provisions of the terms and conditions of this policy, nor an extension.of time to the assured for compliance, except it be a waiver or extension in express terms, and in writing signed by the president or secretary of the company.” The statement, or proofs of loss, as claimed' by the defendant, furnished February 20, 1889, contained the following provisions : “ And in consideration of this proof of loss and the amount awarded therein, we waive all claims made heretofore of above company, and all former proofs made by us are null and void.” “ Any other information that may be required will be furnished on call, and considered a portion of these proofs.” “ It is expressly understood, and agreed that the furnishing of this Proof-of-Loss blank to the assured, or making up of proofs by an adjuster, or any agent of the company or companies named herein, is not a waiver of any rights of said company.” At the close of the testimony, the court, Seely, P. J., charged the jury as follows: This is an action brought upon an insurance policy. No controversy exists but that the defendant agreed, on the tenth day of November, 1885, to insure the property of the plaintiffs for the term of three years. The policy is in evidence. This policy contains certain conditions and stipulations with reference to notice to the insurer of encumbrances that may: be against the property, and requirements with reference to notice, and proofs of loss. The dwelling-house and certain personal property were destroyed by fire on the thirtieth day of October, 1888. The defendants admit by their affidavit of defence that notice of this loss was given to them. Within a few days after the fire, the defendants received from the plaintiffs what they, the plaintiffs, called their proofs of loss. The company notified the plaintiffs that they were insufficient, and declined to recognize them, and called attention to the respects in which they were insufficient. The plaintiffs wrote for these proofs, and they were returned to them, and finally, on the thirteenth of December, 1888, additional proofs were sent. These proofs -were received by the defendants. .They made no further communication to the plaintiffs with reference to the proofs, but retained them in their possession. [Subsequently, in February, they directed their agent to come on here for the purpose of settling this loss. He went upon the premises, had an interview with the plaintiffs, and after some discussion they agreed upon the sum of $1,520.10. The plaintiffs say that this was a compromise. They say that the defendants’ agent came there, saying that he came for the purpose of compromising their claim. Judge Russell, when he is called upon the stand, testifies as to his conversation with the agent of the defendants, and also uses the word “ compromise ” as the one that was used in this connection. And another witness, F. E. Jayne, who was present at this interview with Judge Russell, also uses the word “ compromise ” in speaking of it. The agent himself says that he went there for the purpose of adjusting the loss, and that he adjusted it at the sum of $1,520.10.] 3 [They certainly had a right to accept these proofs of loss as sufficient, and to act upon them and adjust the loss. After having received and retained these papers, when they sent their agent, in the middle of February, to meet these plaintiffs and adjust this loss, and to agree upon the amount that should be paid to the plaintiffs, it was an acceptance of the former proofs of loss as a sufficient compliance with the conditions of the contract.] 4 [If this was a compromise of the claim in-controversy between these parties, and the agent had authority to make such a compromise, as a part of that compromise he had the authority to agree that the money should be paid promptly. It might be one of the considerations for the abatement, from the amount claimed upon the policy, that prompt payment should be made of the amount agreed upon. And if, in the exercise of this authority, they came together and agreed upon the terms of compromise and the amount that should be paid, and when it should be paid, and that transaction was ended in that respect, it could not be defeated by the subsequent signing of a paper, unless it was a clear relinquishment of the plaintiffs’ claim that had already been established and agreed upon. Did the agent of the defendants, under their directions, on the twentieth of February, come there to see the plaintiffs, and to adjust their loss? Did he meet these plaintiffs, and did they then agree upon a sum which was to be paid in satisfaction of this loss, and did the agent of the defendants agree that it should be paid promptly ? If they accepted the former proofs of loss as sufficient for their action in adjusting this loss, we do not think that after it was all over, new proofs of loss could be taken to defeat the rights of the plaintiffs.] 5 The position of the defendants is this. The policy contains a provision that no action can be maintained unless brought within six months of the date of the loss. That would take it to the thirtieth or thirty-first of April, 1889. If the defendants’ theory is correct about this proof of loss that was signed on the twentieth of February, an action could not be brought until ninety days after the twentieth of February, which would be- about the twentieth of May. So that the plaintiffs could not maintain an action brought after the thirtieth of April, and they could not maintain an action brought before the twentieth of May. If the claim of the defendants in this respect is true, the plaintiffs could not maintain any action at all, but this last paper which they call a proof of loss is an absolute bar to any action that could be brought by the plaintiffs. We do not think that it can be so considered. We do not think that under the circumstances, if the matter admits reasonably and fairly of another construction, it should'be so considered. We think you have a right to inquire whether the paper called proofs of loss, signed on the twentieth of February, was not rather a paper drawn for the purpose of making the assertion of the plaintiffs agree with the act of the defendant in respect to the abatement; that is, to make the proofs of loss agree with the amount of the claim as adjusted, and whether this was not the sole and only purpose of the paper at that time. If such was the fact, we do not think that this action is prematurely brought. We do not think that the plaintiffs are placed in a position where they have absolutely waived all right to recover, or to maintain any action whatever against the defendants. The counsel for defendants has submitted certain points in writing, asking us to instruct you : 1. That by the terms of the policy, the defendant company was not required to pay the loss until ninety days after notice and due and satisfactory proofs of. the same shall have been made by the assured and received at the company’s home office, at Boston, Mass., in accordance with the terms and provisions of this policy; and, as satisfactory proofs of loss were not made until the twentieth of February, 1889, and suit was brought on the twenty-ninth day of April, 1889, the right of action had not then accrued to the plaintiffs, and the verdict must be for the defendant. Answer: We refuse to affirm this point. While the proposition of law is generally correct, the proposition of fact, in the latter part of this point, Ave cannot affirm. This proof of loss was not in existence, at all, at the time of the adjustment, according to the testimony of the witnesses, but was something that was signed after the parties had consummated their agreement of settlement. The only proofs of loss existing at the time this agreement was made were the proofs that were made in December and November, and three months had expired since the filing of those proofs before this action was brought. It is true that in this last paper there is an agreement or stipulation that all former claims are waived and treated as null and void. It may be true that after an agreement had been effected by which the amount to be paid and the time when it should be paid had been determined, that they did so agree. They then might waive all the terms of their former claim, and incorporate that claim into a new" paper, if they chose.6 2. The condition not to encumber the property insured was broken by the entry of the judgment of $200, February 2, 1888, confessed by the plaintiffs in favor of Sarah F. Lantz, to No. 540 February Term 1888; and if the jury believe the plaintiffs failed to notify the company and obtain their consent to the continuance of the policy, the policy was therefore void, and the plaintiffs cannot recover. Answer: That would be true as a proposition of law, if it were not for this settlement that is alleged to have been made in February. But, in the proofs of loss which had been furnished, the amount of encumbrances was stated. And after notice had been given to the company that encumbrances to the amount of $3,500 existed upon this property, if they chose then to come in and make a settlement of this matter with the plaintiffs, they had a pérfect right to do so. They had a perfect right to waive this clause in the policy, and might become liable to pay any sum which they agreed upon.7 3. The condition riot to encumber the property insured was again broken by the entry of the judgment of $160, May 15, 1888, confessed by the plaintiffs in favor of P. L. Ward, to No. 78 September Term 1888; and if the jury believe the plaintiffs failed to notify the company and obtain their consent to the continuation of the policy, the policy was therefore void, and the plaintiffs cannot recover. Answer: We make the same answer to this that we did to the former point.8 4. That the alleged representations made by the agent of the defendant company were at.any rate not the assertion of any fact past or present, but only a promise as to the future; and the insured had no right to repose any confidence in such a promise, because there was by the terms of the policy an express exclusion of any such authority on the part of the agent to make it. If he had had sufficient authority to bind the company, his declarations would not have been sufficient to constitute an estoppel. Answer: The matter here is very different from that presented in the authorities that were read. It is alleged by the plaintiffs here that there was an agreement by which they conceded certain things and the defendant agreed to certain things, so that one might be the consideration for the other. If they came to an agreement for mutual considerations, and sufficient considerations, by which this agent, acting for the company at that time, undertook to pay a certain sum to these plaintiffs, in consideration of their waiver of a claim to a larger sum, and agreed to pay it within a certain time, then we think the company should be called upon to respond to that agreement.9 —The jury returned a verdict for the plaintiffs for #1,620.42. Judgment having been entered, the defendant took this appeal and assigned for error: 1, 2. The admission of the plaintiffs’ offers.1 2 3-5. Tlie portions of the charge embraced in [ ] 3 to 5 6-9. The answers to the defendant’s points.6 to 9
143 Pa. 352Hallstead v. Coleman (1891)
Nos. 260, 261 January Term 1891, Sup. Ct.; court below, No. 328 December Term 1887, C. P. On October 19, 1887, W. F. Hallstead, guardian of Mary E. and Henry C. Clapp, minor children of H. Clay Clapp, deceased, brought assumpsit against Michael Coleman, Susan Fish, Levi Curtis and others, “ late copartners doing business under the firm name of the Home Savings Bank of South Waverly,” to recover the amount of a deposit alleged to have been made by the plaintiff in the Home Savings Bank. The defendants pleaded non-assumpsit. At the trial on February 12, 1890, the jury were sworn as to Michael Coleman, Levi Curtis, Susan A. Fish and Sarah K. Harris, the names of all other defendants having been stricken from the record on application of the plaintiff. The following facts were then shown: The Home Savings Bank of South Waverly commenced the transaction of a banking business in 1873, under the management of a president, vice president, cashier, and a board of directors, and continued to prosecute the same until June 25, 1887, when its doors were closed for want of funds. About that time its president, Selim Kirby, made an assignment for the benefit of his creditors to his son, Allen B. Kirby. Selim Kirby died on August 3, 1887. Having shown that at the time it suspended business the plaintiff had on deposit in the bank the sum of $4,830.30, plaintiff’s counsel put in evidence certificates of stock in favor of the defendants, Susan A. Fish, Levi Curtis and M. Coleman, dated respectively April 18, 1874, September 18, 1874, and June 11, 1877, for eight, ten and five shares, respectively, in form as follows: Each of these certificates was signed by Selim Kirby as president, and by C. E. Pendleton, as cashier, but with no seal affixed. It appeared upon cross-examination of one of plaintiff’s witnesses, that the books and papers of the bank relating to its organization, were taken possession of, after its suspension, by Allen B. Kirby, who was present at the trial as a witness for the plaintiff, and that at the time of the trial they were in the state of New York. The plaintiff did not offer to show that the bank was organized as a partnership or joint-stock company, and the only evidence of its character, found in the plaintiff’s case, consisted of said certificates of stock and the fact that it was under the management of the officers named above. The plaintiff showed, further, that the defendants Coleman and Curtis had received several dividends upon their stock out of the earnings of the bank. It was admitted by the plaintiff that Allen B. Kirby was the husband of one of the plaintiff’s wards. W. D. Kirby, the brother of Allen B. Kirby, was called as a witness for the plaintiff, and testified that he was employed as a book-keeper in the bank for about six years prior to the time when it ceased to do business. At the close of the testimony for the plaintiff, the court, on motion entered a compulsory nonsuit as to Sarah K. Harris, but refused the motion, as to the other defendauts. The defendants then presented testimony tending to show that Selim Kirby was the projector and promoter of the organization of the Home Savings Bank; that, while soliciting subscriptions to its stock, he exhibited to persons whom he asked to subscribe a paper purporting to be a charter of incorporation, and that the defendant Curtis subscribed for his stock after having been assured by Kirby that the bank was regularly incorporated ; that annual elections of officers were held, at which stockholders cast one vote for each share of stock held by them; and that annual reports of the condition of the bank were made to the auditor general of the commonwealth. Michael Coleman testified that five shares of stock held by the witness were issued to him as and for stock which had been held by his son, who died intestate, leaving a widow but no children; that they came to the witness as his son’s heir, and that at the time of receiving the certificate he gave the bank a bond of indemnity'. There was no evidence of any transfer of the original certificate to Mr. Coleman, upon the books of the bank, by an administrator of the son. It was not shown how many shares of stock the son had held in his lifetime. Among the persons whose names originally appeared upon the record as defendants, but were stricken off before trial, was John Coleman, who was said in the paper-books to be the son referred to in the testimony of Michael Coleman. The testimony of Levi Curtis and Michael Coleman tended to show that they never participated in the management of the bank or in any of its business, except by merely holding stock and receiving some dividends thereon. Susan A. Fish was not called as a witness. There was testimony tending to show that H. Clay Clapp, the father of the plaintiff’s wards, was one of the directors of the bank. The testimony being closed, the court, Sittser, P. J., charged the jury in part as follows: The first question for you to dispose of, will be whether the Home Savings Bank of South Waverly, whatever it was, was indebted to the plaintiff in the sum claimed by him in this suit. The plaintiff claims that he had deposited in that institution, and that there was due him on the twenty-fifth day of June, 1887, the sum of #4,830.30. It will be your duty to first ascertain what, if any, amount was due to the plaintiff from the Home Savings Bank at the time this suit was-brought. [If you find that there was any sum due to the plaintiff at that time, your next inquiry will be whether this institution was a partnership, or what it was. And if you find that it was a partnership, your next inquiry will be whether these defendants were members of the firm. A partnership may be formed where the parties do not intend a partnership. A man may become a member of a fiim, and assume all the liabilities of a partner, when he does not intend to become a partner, when he does not regard himself as a partner, and has never been treated as a partner by the other persons connected with the business. If a man puts his money or his property into a business, and by contract with the other parties stipulates for a share of the profits, he becomes a partner in that business whether he intended to do so or not. And this results from the fact that he •has joined with other persons in a business or adventure, and has stipulated for a share of the profits of the business. That fact would make him a partner. That is the general rule. These defendants claim that when they invested their money in this business they supposed it was an incorporated bank. But- the material question for you to determine is, did they invest their money in this business, and did they stipulate for a share of the profits of the business? If they did, they became partners, and individually liable for all the debts of the firm, unless they can show something by which they can protect themselves from this liability. If the institution was an incorporated bank, then they would not be individually liable. But if it was incorporated, the burden is upon the defendants to show it. And if it was a limited partnership the burden is upon the defendants to show it. No evidence has been given before you that it was incorporated, and no evidence that it was a limited partnership.] 4 A question has been raised here as to the liability of Michael Coleman. The certificate of stock which has been given in evidence is dated the eleventh of June 1877, and it is claimed on the part of the plaintiff that because he took that certificate of stock for five shares, he acquired an interest in this business and became liable as a partner. If this institution was a partnership; if you find that it was a partnership, when you come to the case of Michael Coleman you will consider, first, what authority Mr. Kirby and the cashier bad to transfer to him five shares in that business. This certificate is signed by Selim Kirby, and by C. E. Pendleton. Ordinarily, where a partnership exists each member of the partnership participates in the business, and has an equal voice with the others. They may, however, if they see proper, deputize certain persons to be managing partners. They may by express agreement authorize certain persons to admit other persons into the partnership, upon their contributing to the capital of the concern; or they may, without any express resolution to that effect, by a long course of business and an acquiescence in the exercise of such authority upon the part of certain persons, make a certificate of stock evidence that the person named therein has been made a partner in the concern and a sharer in the business. But there should be proof of this. That Selim Kirby and C. E. Pendleton, the one styling himself president and the other cashier of this bank, could issue a certificate of stock to a person who had invested his money in the business, seems to have been the course pursued by this bank from the beginning. And it seems to have been acquiesced in by all the persons interested in that business. There is no evidence, however, that Mr. Kirby or Mr. Pendleton could issue certificates of stock and give persons an interest in that business unless they contributed money to the capital of the institution. There is testimony in this case to show that Mr. Coleman paid nothing for this certificate of stock; that he put no money in this business. The evidence on the part of the defendant is that a son of Michael Coleman had an interest in this business, and held ten shares in this institution; and that upon his death Selim Kirby and C. E. Pendleton attempted by this certificate to transfer to Michael Coleman five shares of the stock that had belonged to Mr. Coleman’s son in his lifetime. When a man dies, his personal estate goes to his executors or to his administrators. Selim Kirby had no authority to assign and transfer to Michael Coleman the property which belonged to Michael Coleman’s son. The executor or administrator could have transferred it. And if the executor or administrator had produced proper authority to Mr. Kirby, he might have had the power to transfer it upon the books, and to issue this certificate. But in the absence of some authority, either from an administrator or from an executor, or of a family arrangement made between the parties in interest and assented to by them, he had no authority to transfer this stock, and could not by that act make Michael Coleman a member of the firm. In the absence of such authority, Michael Coleman could not claim to be a member of the firm, and would have no right to call upon the other partners for an account, and would have no right to participate in the business. [Whether he was authorized in that way, whether there was a family arrangement by which Mr. Kirby would be authorized to transfer this stock, is a question of fact for you under all the evidence in the case.] 9 If you find for the plaintiff you will say in your verdict that you find for the plaintiff a certain amount, which you will state in your verdict. And if you are of the opinion that Michael Coleman was not a member of this firm, and that Susan Fish and Levi Curtis were, you can say that you find for the plaintiff as to Susan Fish and Levi Curtis, stating the amount in your verdict. The plaintiff’s counsel have submitted a point in writing, asking us to charge you as follows: 1. That, under all the evidence in the case, the plaintiff is entitled to recover, and your verdict should be in his favor for the amount of his claim as shown by the evidence. Answer: This point is not affirmed. But in refusing to affirm it [we do not say to you that the plaintiff is not entitled to recover. We simply submit the evidence to you, and it is for you to determine, under the instructions we have already given to you, whether or not the plaintiff is entitled to recover.] 5 Mr. Mercur: I think the court is in error in saying that there is no evidence of any agreement or arrangement. The evidence of Michael Coleman was that he went to the bank together with his daughter-in-law, and made the arrangement by which the certificate was surrendered and these two issued to him and his daughter-in-law. By the court: [We do not say to the jury that there was no arrangement, but we submit the evidence to the jury, and it is for them to find whether there was any such arrangement or not.] 9 —The jury returned a verdict for the plaintiff for §5,593.48. A rule for a new trial having been discharged and judgment entered, the defendants Coleman and Curtis took these appeals, assigning for error, inter alia, in each case: 4, 5. The parts of the charge embraced in [ ] 4 5 Michael Coleman assigned for error, also: 9. The parts of the charge embraced in [ ] 9
143 Pa. 367Philadelphia v. Pennsylvania Hospital (1891)
No. 106 January Term 1891, Sup. Ct.; court below, No. 27 June Term 1889, C. P. No. 1. To the number and term stated of the court below, the city of Philadelphia, to the use of John Mack, brought scire facias against the Contributors to the Pennsylvania Hospital, upon a municipal claim for curbing laid in front of defendant’s property, on the west side of Forty-second street. The defendant filed an affidavit of defence, averring that the claim of the plaintiff for curbing was a tax levied and assessed against the defendant; that defendant was incorporated by act of May 11, 1751, 1 Sm. L. 208; that, by the acts of March 19, 1845, P. L. 187, and April 18, 1858, P. L. (1854) 834, its estate and property were expressly exempted from all taxation. The affidavit then proceeded: “ 6. Defendant further avers that the real estate in question forms part of a large tract of land, the whole of which is in actual continuous daily use and occupation for the purposes of an insane asylum for males and females, belonging to and exclusively managed by the Contributors to the Pennsylvania Hospital, and upon this tract are erected the various buildings in which the said insane patients live. The whole of the remainder of' this tract of land forms the grounds immediately around the said hospital building, and the entire tract, including the whole piece against which this lien is filed, is annexed to and necessary for the occupancy and enjoyment of the same, and actually lies within the high walls which have been built to prevent the escape of insane patients, while affording them the amplest opportunity for recreation and exercise. “ This tract, as well as all the rent- and profit-producing property of the defendant, both real and personal, has been and is appropriated entirely and exclusively for the purposes specified in its act of incorporation, namely, the ‘ relief of the sick and insane poor;’ and neither the president nor any of the directors of the corporation get any salary or emolument of any kind for managing and superintending the affairs of the institution, nor can any profit be derived from the property of the said corporation, directly or indirectly, or can be obtained from any connection therewith. .“7. That the said corporation has no capital stock; and there is annually more money expended by the institution, in carrying out the purposes of its incorporation, than is received from all sources of its income; and this deficit is made up by annual contributions and donations made to it from time to time by private individual donations and contributions. “8. That the said corporation is maintained by voluntary contributions from its members and others, and from the income derived from the capital accumulated from time to time by gifts, devises, and bequests. “ 9. That no distinction is made in the reception of patients by the defendant on the ground of sex or color, and the said corporation is a charitable trust open to the public indefinitely and conducted without a view to corporate or individual profit, and is an institution of purely public charity, and no such profit arises, but it is founded, endowed, and maintained by public and private charity. “ 10. The department of this corporation known as the hospital for the insane, heretofore referred to in paragraph 6, is conducted for the same charitable objects as the hospital for physical injuries and disease, between Spruce and Pine streets and Eighth and Ninth streets, in-the city of Philadelphia. “All the funds of the institution, unless especially earmarked, may be devoted, at the discretion of the board of managers, in whole or in part, to the maintenance of either or both of these institutions, there being no difference in the method of management between the two institutions. Separate books are kept solely for the purposes of convenience, and to ascertain the cost of carrying on the various branches of each department, for the department in West Philadelphia and in the city proper; but the use of the funds of the institution for the support and maintenance of either or both these institutions, as well as the amount to be devoted to each, lies solety within the discretion of the board of managers. “ The whole institution, including the insane department in West Philadelphia and the hospital in the city, is purely and exclusively charitable, and no profit of any kind is derived in any way, directly or indirectly, from either of these departments. “ 11. In order to extend as widely as possible the benefits of the charity, those applicants for admission, both to the hospital at Eighth and Spruce streets and to the insane department in West Philadelphia, who can afford to do so, are required to pay a fee which shall, as nearly as possible, represent the actual cost to the institution of the board of such patient, together with a reasonable charge for the lodging of such patient, and for the use by such patient of the plant of the defendant; but the total charged to any patient in no case exceeds the actual cost to the hospital of such patient’s maintenance, including such charge for lodging. “ 12. Many patients are admitted absolutely free, both in the male and in the female department, and both in the hospital and insane department. “ If the institution were a private corporation carried on for the purpose of profit, and if all persons admitted to it paid an amount equal to the average amount paid by all the pay patients, the institution as a whole would be operated at a very heavy loss, the excess of expense over average amount paid being nearly double.” Statements were exhibited showing the value of each parcel of land owned by the hospital, the receipts from pay patients, and the deficits made up from contributions, general or special. After argument, the court, Biddle and Bregy, JJ., without opinion filed, made absolute a rule for judgment for want of a sufficient affidavit of defence; whereupon the defendant took this appeal, specifying that the court erred : 1. In entering judgment against the defendant.
143 Pa. 374Jones v. Pennsylvania R. (1891)
No. 111 January Term 1891, Sup. Ct.; court below, No. 445 June Term 1882, C. P. No. 2. On. June 21, 1882, William Jones brought trespass on the case against the Pennsylvania Railroad Company, to recover damages for consequential injuries to plaintiff’s real estate, caused by the building of the elevated Filbert street extension of defendant company’s railroad. A declaration was filed July 19, 1884. On September 16, 1884, the defendant pleaded not guilty, and on October 12, 1886, filed an additional plea setting up specially an alleged submission and award, and a tender of the amount of the award. Issue. At the trial, on February 10, 1890, the plaintiff having shown the construction, etc., of the Filbert street extension of the defendant’s railroad, the pillars thereof being upon the sidewalk and the top of the road not more than four feet from the plaintiff’s buildings, and the injuries caused thereby, rested, when the defendant put in evidence under its special plea the following submission, executed on November 7, 1888, by the plaintiff and by Mr. Fox and Mr. MacVeagh, representing the defendant company: “Now, these presents witness that the undersigned hereby agree that the question as to the fair market value of each of said properties, No. 2129 Filbert street, and northeast corner of Twenty-second and Filbert streets, immediately before the Filbert street branch was known to be contemplated, say July 1, 1881, shall be submitted to the final decision of Henry R. Gummey and Craig D. Ritchie, Esqs., if they can agree upon the same; if not, they shall have power to select an umpire whose decision shall be final; it being agreed that the premises, northeast corner Twenty-second and Filbert streets, have been occupied for many years past as a blacksmith and wheelwright-shop by said William Jones, and that that fact shall be taken into consideration by the arbitrators, but no valuation shall be made of the good-will of the business, but a reasonable time (say three months) without rent and after that, if necessary, six months, under such rent as may be fixed by tbe arbitrators, shall be allowed said Jones to remove. “ The Pennsylvania Railroad Company agreeing to pay in cash the price so ascertained, with interest at three per cent., from said time at which the said properties are so valued, and the owner agreeing to give to said company a good fee-simple title to said premises clear of encumbrances. And it is expressly understood that the price, when paid for the property in pursuance of this agreement, shall operate as a release to all claims of every character that the owner could make from the time of the location of the Filbert street branch to the date of said purchase.” ' The defendant put in evidence, also, the following award made by the arbitrators named in the agreement, to whom had been referred, in like manner, the valuation of properties of other owners upon the same square : “The undersigned arbitrators, to whom was referred the question of the values of certain properties situate on Twenty-first, Filbert, and Twenty-second streets, proposed to be purchased by the Pennsylvania Railroad Company, and specifically delineated on a plan thereof hereto annexed, hereby report the following award: * * * * * * * * “ William Jones, No. 2129 Filbert street, . $5,000 “ William Jones, northeast corner Filbert and Twenty-second street .... 11,200 “ The above sums being awarded to the owners respectively of the premises severally above mentioned as the full consideration therefor, and on payment thereof to the said several owners respectively, together with interest on the said several sums, at the rate of three per centum per annum from the first day of January, A. D. 1881, they, the said several owners, shall, by proper deeds of conveyance, grant, assure, and convey the said premises respectively to the said Pennsylvania Railroad Company, or to such person or persons as it may designate, in absolute fee-simple, clear of all ground-rents and all encumbrances whatsoever. Titles to said premises to be made satisfactory to the counsel of the said railroad company, and rent and taxes to be adjusted to dates of the respective settlements. And the said owners shall, at the same time, execute and deliver to the said railroad company a full and absolute release arid discharge of all claims for any loss or damage by reason of the construction and use of the elevated railroad on the said Filbert street. “ By the terms of submissal, the said William Jones has the right to the occupancy- of the premises now owned by him for the space of three months after conveyance thereof by him as aforesaid clear of rent, and the right further to continue to occupy the same for the further term of six months at such rent as the arbitrators may determine. The undersigned decide that during the free occupancy of the premises, the said Jones shall pay the taxes and water rents thereon, and that if further occupied, the rent of No. 2129 Filbert street shall be twenty-live dollars per month, and the rent of premises at the corner of Twenty-second and Filbert streets at the rate of seven hundred dollars per annum. “ The expenses of this arbitration shall be paid, one half by the owners of the premises valued, and one half by the Pennsylvania Railroad Company. “ Witness our hands and seals the twenty-sixth day of November, 1883.” It was made to appear, also, that Mr. Frank Wolfe, acting as attorney for the several property owners named in the award, caused amicable actions against the defendant company to be entered on behalf of said property owners, the action in favor of William Jones being entered on November 13, 1883, to No. 723 September Term 1883, in the Court of Common Pleas No. 3 of Philadelphia county ; that he filed in said actions the agreements of submission and awards and caused judgments to be entered upon the awards in favor of the respective plaintiffs, and that afterward some of those judgments, including the one in favor of William Jones, were stricken off by the court. Testimony for the defendant tended to show that defendant’s counsel objected to those judgments as irregular, asked plaintiff’s counsel to have them stricken off, and that the motion upon which the judgment in favor of Jones was stricken off was made by his attorney, Mr. Longstretli. It was made to appear, further, that the arbitrators who made the awards were not sworn, and that they did not hear witnesses and did not give the parties notice of any meeting, but made the awards upon personal inspection and investigation. The defendant showed, also, that on December 26, 1883, the board of directors of the defendant company by formal resolution approved the several awards made by the arbitrators, and directed payment of their amount, with interest at three per cent from January 1, 1881, to time of settlement, upon delivery of deeds for the properties, in fee-simple, clear of encumbrances, to said company or such person as it might designate, with releases of damages as set forth in the report of arbitrators, provided that the conveyances and papers should be approved by the general solicitor of the company; that on December 31, 1884, Mr. Henry K. Fox, on behalf of the defendant, visited the plaintiff’s premises, taking with him the amount of money payable to the plaintiff, Jones, upon the award in his favor, and read to the plaintiff a written tender, signed by Mr. Fox for the defendant company, in accordance with said award; and that upon the reading of the said tender, the plaintiff refused to accept it, and ordered Mr. Fox to leave his premises. In rebuttal, the plaintiff testified that he never knowingly submitted the matter to arbitrators; that he signed a paper in the office of Mr. Wolfe, in blank, which he supposed Mr. Wolfe afterwards filled up; that as soon as the witness heard that an award was made, he objected to it because he thought he was not getting enough, and went to Mr. Wolfe and told him that he could not stand any such arbitration as that; and that within a few days after the date of the award, having been informed that his title papers were in the hands of Mr. Fox, the witness demanded his deeds and informed Mr. Fox that he could not stand such an arbitration. Mr. Fox testified in rebuttal for the defendant that, according to his recollection, he did not have the plaintiff’s title papers until some time early in 1884, and therefore, such a conversation as that testified to by the plaintiff could not have occurred at the time the plaintiff .named. It was admitted that the plaintiff’s wife, immediately upon the appraisement being made known to her, declined to sign the deed to the defendant, and told the plaintiff that she would not release her dower in the property and would not join in the deed, and that she had not changed her mind. The testimony being closed, the court, Hake, P. J., charged the jury in part as follows: The defendant requests the court to charge: 1. The uncontradicted evidence being that the plaintiff agreed with the defendant in writing to sell to it the properties in suit at values or prices to be determined by arbitrators, and that the arbitrators duly fixed the said values or prices by an award in writing, and awarded the said sums to the plaintiff, and that the defendant, by formal action of its board of directors, accepted and approved said award, and by its duly constituted agent tendered to the plaintiff, the said sums fixed, and also tendered to the plaintiff, for execution, a deed and release to be signed by him, but which was declined and refused by the said plaintiff, the equitable title to the premises, for damage to which this action is brought, has passed from the plaintiff to the defendant, and the verdict must be for the defendant. Answer: Refused. 2. If the jury believe that the plaintiff agreed with the defendant to sell to it the properties in suit at values or prices to be determined by arbitrators, and that the arbitrators duly fixed said values or prices, and awarded the same to the plaintiff, and that the defendant accepted and approved said award, and tendered to the plaintiff the said sums fixed, and also tendered to the plaintiff, for execution, a deed and release to be signed by him, but which was refused and declined by said plaintiff, the verdict in this action for damages to the properties must be for the defendant. Answer: Refused.4 3. If the jury believe the defendant’s witness, Henry K. Fox, who testified that the alleged revocation of the submission to the award of arbitrators by plaintiff was not communicated to the defendant by plaintiff until long after the award had been made and signed by the arbitrators and formally approved by the board of directors of defendant, the plaintiff has no cause of action, and the verdict must be for the defendant. Answer: Refused.5 4. If, on the other hand, the jury believe the plaintiff himself, who testified that the alleged revocation of the submission to the award of arbitrators was not communicated to the defendant by him until after the award had been signed by the arbitrators, the plaintiff equally has no cause of action, and the verdict must be for tbe defendant. Answer: Refused.6 7. Under the special plea filed in this case on October 12, 1886,* if the jury find tbe following facts, viz.: That in the year 1883, after the bringing of this suit, the plaintiff and defendant entered into the agreement in writing, dated November 7, 1883, which has been admitted in evidence; that after-wards, viz., on November 26, 1883, Henry R. Grummey and Craig D. Ritchie made the appraisement in writing which has been offered in evidence; that before any repudiation or attempted repudiation of the said agreement on the part of the plaintiff, the defendant afterwards, viz., on December 26, 1883, by resolution of its board of directors, accepted the terms of the said agreement and appraisement; and that afterwards, to wit, December 31, 1884, the defendant tendered to the plaintiff the sum of $17,658, being the full consideration for the said property with interest, together with the deeds for execution, which have been also offered in evidence; and that the plaintiff thereupon refused to accept the said purchase money and to execute, or cause to be executed, the said deeds, their verdict should be for the defendant. Answer: Refused.2 8. If the jury believe from the evidence that the facts set forth in the additional special plea filed October 12, 1886, are true, their verdict should be for the defendant. Answer: Refused.3 9. Under all the evidence, the verdict should be for the defendant. Answer: Refused.7 [The agreement and the action under it is not a defence to this action, and its consideration as a defence is withdrawn from the jury.] 1 I may add that, in deciding whether a jury will give damages in the nature of interest for delay in compensation, the question may arise, who was to blame for that delay; was it the plaintiff’s fault, or was it the defendant’s fault that the money was not sooner paid ? So far as that part of the case is concerned, I do not withdraw the agreement from you; I cannot do so because the papers in evidence will go out with you. If you find that the delay in payment arose from the fault of the plaintiff, Mr. Jones, you may consider whether that ought to induce you to withhold interest. If it arose from the fault of Mr. Jones not taking the money that was offered him, you can consider that on the question of interest. In using the expression that the agreement is to be left out of view, I mean in regard to the original sum claimed by the plaintiff and withheld by the defendant. In regard to additional damage on the question of interest, you may do as you see fit. You will say if the delay was the plaintiff’s fault. —-The jury returned a verdict for the plaintiff for $10,000. Before judgment, the plaintiff died, and his executrices, Sarah M. Jones and Annie E. Jones, were substituted. A rule for a new trial having been discharged and judgment entered upon the verdict, the defendant took this appeal, assigning for error: 1. The part of the charge embraced in [ ] 1 2-7. The refusal of defendant’s points.2 to 7
143 Pa. 386Estate of Kesler (1891)
No. 177 January Term 1891, Sup. Ct.; court below, number and term not shown. On November 12, 1889, the account of Charles M. Lukens and Thomas M. Montgomery, executors of the will of Henry Kesler, deceased, was called for audit. At the hearing, it was shown that the testator died on June 23, 1888, leaving a will dated May 18, 1883, duly admitted to probate. The account, as corrected, showed a balance for distribution of $134,376.96, one third of which was claimed by Mrs. Mary R. Kesler, as the widow of the testator electing to take against the will. In a codicil to his will, dated October 6, 1884, the testator referred to the fact that after the date of the will he had married, and before his marriage had entered into a marriage settlement with his wife whereby he had secured to her the sum of six hundred dollars per annum, in the event of her surviving him, to be paid to her during her life, which settlement he confirmed; and as a further provision for his said wife, he bequeathed to her the sum of two thousand dollars, to be paid to her out of the first moneys to come into the hands of his executors. By a second codicil, dated August 18, 1885, to increase the share of his estate that he had set apart for his wife’s benefit by the marriage settlement and the former codicil, the testator bequeathed to her the sum of fifteen thousand dollars, which by said marriage settlement he had conveyed to trustees, and directed said trustees to assign and convey said trust fund to her absolutely, free and clear of all the trusts of said settlement; and he bequeathed to her, further, such part and portion of his estate as, with the said sum of fifteen thousand dollars and the two thousand dollars bequeathed to her by the former codicil, would amount to the one full equal third part of his whole estate, to hold the same to her absolutely. By a third codicil, dated October 28, 1887, the testator revoked both the former codicils as improvidently made, and in lieu thereof gave and bequeathed to his wife, in addition to the annuity provided for in the marriage settlement, the further yearly sum of six hundred dollars, which he directed to be paid to her by his executors yearly during her life or widowhood ; “ and if my said wife marry again at any time after my decease, then the said yearly payment of six hundred dollars shall cease and determine, and revert to and become part of my residuary estate.” It was admitted that the claimant was the widow of the testator, and that she was married to him on May 20, 1883. At that time the testator was about seventy-three years of age, the wife, formerly Mrs. Mary Rebecca Davidson, a widow with two children, being somewhat over thirty. The accountants, also the trustees, under the will, of Thomas H. Kesler and Georg’e Kesler, sons of the testator and the devisees of nearly the whole of the estate, proved and put in evidence a formal deed of marriage settlement executed by Henry Kesler, of the first part, Mary Rebecca Davidson, of the second part, and Charles M. Lukens and Thomas M. Montgomery of the third part, and bearing date May 6, 1884. This deed was long and formal, but in substance recited the intended marriage of Mr. Kesler and Mrs. Davidson, and assigned and conveyed to said Lukens & Montgomery a certain mortgage security for fifteen thousand dollars owned and held by Mr. Kesler, in trust to receive the interest thereon as it was payable, to pay such income to Mr. Kesler during the joint lives of said Mr. Kesler and Mrs. Davidson, and upon the decease of Mr. Kesler, if said Mrs. Davidson should survive him, to pay over to said Mrs. Davidson, for and during all the term of her natural life, the sum of six hundred dollars, in even and equal half-yearly payments from the day of the decease of said Mr. Kesler; in consideration whereof, the said Mrs. Davidson, on her part, covenanted “ to accept the provision herein made and provided for her, as a full discharge and satisfaction of all rights of dower, or thirds, or other right, title and interest, which by virtue of such marriage she may or might acquire or become entitled to in the estate of him the said Henry Kesler.” The trust created by this deed was accepted by Charles M. Lukens and Thomas M. Montgomery of date as written May 6, 1884. The date of the acknowledgment as given on the deed was May 6, 1884, but the deed was recorded and the assignment noted on the margin of the mortgage on May 19, 1884. Lukens & Montgomery appeared to be the business agents and advisers of Mr. Kesler. There was also put in evidence by the accountants and trustees a “ Statement of the Investments and Estate of Henry Kesler,” showing a list of securities and their value, which, with the dwelling-house and grounds of said Kesler valued at $9,000, made the then total value of his estate $118,300. To this list was attached a writing signed by Mrs. Davidson, bearing date May 6, 1884, setting forth that she had examined the said list of securities, etc., and acknowledged that she had been made acquainted with the value and amount of Mr. Kesler’s estate. Messrs. Lukens & Montgomery and the subscribing witnesses, also Mrs. Clara E. Kesler, a daughter-in-law of the testator, all testified that the purpose and contents of both said papers were fully made known to Mrs. Davidson before she executed and acknowledged them. The claimant called Dr. Howard Patterson, who testified that he was the family physician of Mrs. Davidson; that from February 22, 1884, Mrs. Davidson was seriously sick, part of the time delirious, and was convalescing only, on and about May 20th; that Mr. Kesler called upon him several times before the date last mentioned, and on the last visit, two or three days before the marriage, he spoke to him about whether she could go out to attend to the signing of “that paper;” that “ he was particularly anxious to have her go and sign that paper, telling me that he expected to marry her, and it was absolutely necessary to sign that paper before the wedding. . . . He told me that his intention was to settle some money 'on Mrs. Kesler prior to her wedding, so that there would be no dispute afterwards, in the event of his death, so far as the will was concerned. My recollection is that he told me that it was to be independent of anything else, and was a provision to prevent any after trouble.” The witness assented that his patient should go out for an hour or so, and testified that up to the time of the execution of the deed Mrs. Davidson was in a weak nervous condition. Under objection on the part of the trustees to any testimony as to declarations of Mr. Kesler or anything that occurred after the signing of the paper, Lawson C. Funk testified that he was the husband of a daughter of Mr. Kesler who died in 1882; that Mr. Kesler and he were on very intimate and friendly terms, and that at various times Mr. Kesler talked with him about the subject now in controversy, both before and after his marriage; that the witness advised against the marriage; “he told me he was having a paper prepared by scriveners Lukens & Montgomery, to protect himself and his heirs, as she was a young widow, and he did not know what she might do; to use his language, she might jump the traces.” The testimony of this witness, as to the declarations of Mr. Kesler before the execution of the deed, went to show that Mr. Kesler. intended to have Mrs. Davidson execute the deed under the belief that the provision made for her in it was to be independent of and in addition to her interest in his estate under the intestate laws; “that this would not interfere with her rights.” The witness testified, further, that he never saw Mrs. Davidson until the next Sunday after she was married to Mr. Kesler; that in 1886, there was a family difficulty and Mrs. Kesler left home and would not return unless Mr. Kesler’s son and the wife of the latter should leave; that this difficulty was adjusted by the witness and the claimant returned; that in May, 1887, Mr. Kesler came to the witness very much excited ; he said, “ The cat is out of the bag, and the devil is to pay; the thing is all up now, but you are the man to help me out of this difficulty; we can shut her eye up again; she has found out all about this, all about this marriage agreement; she has proceeded with legal proceedings; I have got a letter from her lawyer on Market street, and took it in tó Lukens & Montgomery, this morning, and got their advice; ” that the witness, though objecting at first, finally consented and went with Mr. Kesler to see the claimant; that the claimant said she had been advised by her counsel not to make any compromise whatever, unless the marriage settlement was destroyed; that any codicil he might add to his will would not amount to a straw. The witness then proceeded: “A. Yes; lam getting to that. He says, ‘You certainly have that much confidence in me, that you will take my word if I promise that I will give you one third of my personal and real estate and revoke all marriage agreements and codicils that I have made; you certainly will have that much confidence in your husband.’ She says, ‘ You played a trick on me, and if you will in one instance you will in another.’ He says, ‘Well, you don’t think that I will do that, when I give you my word. You never asked me any questions in regard to the other. You do not suppose I would do a thing like that; and don’t you see this man standing by to witness that I will make all wrongs right?’.....He says to her, ‘You will find that I have given you one third absolutely, and I will make a promise, and here is your witness, I will not destroy it or change a letter in any manner, shape or form whatsoever, without you and he have knowledge of it, at any time in the future; that I will revoke all agreements, set aside, but not destroy from the record.’ He says, ‘ I wont promise to do that, because my word is sufficient, without destroying that which is recorded on the record.’ She says, ‘If you will show Lawson the marriage agreement, and he will witness all that you will say that is in the will, why, I will tell you when you return. Make an investigation, and I will make up my mind between this time and the time you return, and I will tell you what I will do. But I am loth to accept any compromise whatever under the conditions, the way I have been treated.’ She asked him why he made that provision in that marriage settlement, in the first place, and he related what I have gone over, — to protect his family; that she might jump over the traces; that he fully intended, if she proved to be a faithful, good wife, — he only had this to protect himself and his family, — if she proved to be what he thought she was, and what she had now turned out to be, he would have given her at the same time one third. We left.”. . . . The witness then testified that the next morning he and Mr. Kesler called upon Lukens & Montgomery and examined the marriage settlement, the will, and the codicils then attached to it; that the same day they called together upon Mrs. Kesler, and the witness stated to her what he had seen oí the papers; that she asked witness if he would advise her to accept this, and the witness declined to give her advice ; that Mr. Kesler then said, “You will certainly advise her, when you have heard the statement made and have seen that it was made personally, and then substantiated by a document which carries out everything that I have said.” The witness then proceeded: “ I said I certainly could not under the conditions. He said to her, 'I have promised to give you one third. I have promised to set aside the marriage agreement.. I have brought you now an attorney, (as he called me,) to represent you, in case of any trouble to protect you, and have shown him that every statement that I made was absolutely correct, and he does not bring home any objection whatever. Now, what else under the heavens do you want a man to do ? I have done all I can do.’ She says, ‘As my attorney, do you advise me to accept it?’ I said, ‘I have no advice to give whatever.’ She hesitated, and they had repeated remarks, and then she says, ‘Papa, I have concluded to accept this, since you have shown it to Lawson, and have pledged yourself that you would not change, alter, or destroy it; that you will not in any manner, shape or form, alter the codicil, the last codicil to that will, without his or my knowledge; that you willingly, without any persuasion, called in him to represent me, and as you have had confidence in him to represent you in another case, I will have confidence enough in him to represent me, so I will accept it.’ They shook hands, kissed, made up, and I went home.” On November 21, 1889, the auditing judge, Ashman, J., filed an adjudication in part as follows: The widow elected to take against the will. Her eligibility to elect was of course barred, so long as the marriage settlement stood; and, in support of the settlement, it was shown that the claimant, at the age of about thirty, a widowand possessed of little if any property, was engaged to be married to the testator who was seventy-three. Two days before the ceremony, she went with the testator’s daughter, at the testators’ request, to the office of these accountants, who were the legal advisers of the testator, and she there executed the settlement. The paper was in formal shape, and set apart fifteen thousand dollars, in the hands of the accountants, in trust to secure the payment of an annuity to the claimant of six hundred dollars, commencing at the decedent’s death. It was accompanied by a schedule of the decedent’s property which designated the several investments and included a piece of real estate valued at nine thousand dollars, and it showed a total of $118,800. Before executing the settlement, both papers were read over to the claimant, and she admitted that she was satisfied with them. This was the case for the estate; and as all the testimony which was afterwards received was strenuously objected to, it may be well to determine whether at this point, the ante-nuptial arrangement was in legal contemplation complete. The auditing judge regards the question as doubtful. The attitude of the contracting parties required, on both sides, the amplest disclosure of every fact which could assist the judgment. Perhaps the duty of an ordinary counsel, who had been engaged by the husband, would have been discharged when he had read over to the wife the items which constituted the estate of the husband and the provisions which made up the settlement, because he might have assumed that neither party was ignorant of the law. But it will scarcely be said that any lawyer, engaged by the wife, would have stopped at the reading of these papers, and ended his responsibility when he was satisfied they were in due form. These accountants, however, stood as close to the widow as if they had been her attorneys, for they were her trustees. They knew that she was bartering an absolute interest of thirty-six thousand dollars in cash, and a life-interest in real estate, for an income of fifty dollars per month; and, certainly, if they chose to refrain from advising her as to her legal rights, or even from asking her if she had made a single calculation, they might at least have assured themselves that she had received advice elsewhere. They were bound to this by the persuasive fact that they were the paid advisers of the husband; that they had advised him as to the provisions of the settlement, and had actually drafted its provisions; and that, just so far as the interest of the husband could be said to be opposed to the interest of the wife, they, as the representatives of the husband, were, in a very understandable sense, antagonists of the claimant. The importance of these suggestions as to the duty of counsel is instantly apparent when the conduct of the husband is considered. He had persistently assured the claimant that the provision by way of settlement was a gift entirely independent of her share in his estate, and was intended to meet her immediate necessities in case of his death or of a difficulty with his family. With this preconceived misunderstanding of its meaning, she listened to the reading of an instrument which is as •remarkable as the will for the extent of its verbiage, and gathered from it, if she gathered anything at all, that she was to receive six hundred dollars per annum, exactly the amount of the gift which her husband had told her she would receive. A single word from her own trustees would have dispelled the delusion, or rather have unearthed the treachery; and the trustees remained silent. Their defence was, that, as advisers of their own client, they were not called upon to represent also the interest of the party with whom he dealt. This is ordinarily true ; but it is not true where the other party is in a relation of the closest dependency upon that client, and certainly not, where she is the beneficiary of a trust which they have accepted as her trustees. Passing this point, the auditing judge, upon the evidence which was given by the claimant, and without going into more detail than can be avoided, finds these facts: The claimant had suffered for some months from nervous prostration, culminating at one time in delirium, and was only fairly convalescing when she was married. Two days before that event, the decedent called upon her physician, as he had done previously, and expressed the greatest anxiety that the claimant should sign a paper, the object of which he said was to settle money upon her to avoid a dispute in case of his death. On that day, the doctor gave his consent, which he. had heretofore refused, to the execution of the business, provided it could be dispatched in an hour, his hesitancy having arisen from his knowledge of the claimant’s nervous condition. The paper was accordingly executed under these circumstances. The intended marriage was the subject of frequent conversations between the decedent and his son-in-law, who was decidedly opposed to the new connection. To this gentleman the decedent declared that he was about to prepare a paper which would protect himself and his heirs, and which he would not show to his wife until two or three days before his marriage; that she was poor and was grateful to him for presents, one in particular of one hundred dollars; that she would ask no questions, and that he would “pull the wool over her eyes.” He added that he had told her the paper would not interfere with her rights, and would be independent of them ; that he had been advised in the matter by his scriveners, and that they would take care of him. At this time, the son-in-law did not know the claimant nor where she lived; and he never in fact saw her until after the marriage. Two or three years thereafter, the claimant came to the witness for aid in settling a family dispute which had induced the claimant to leave the house. He then declared that his wife had found out about the settlement; to use his own words, “ the cat is out of the bag, and the devil is to pay.” He avowed his willingness to make any promises that would soothe her, and added that he could creep out of his new promise as he had crept out of old ones. The son-in-law positively refused to move in the matter; but afterwards, he met the decedent and claimant at their own house; and the claimant, then stating that her husband had promised to retain a codicil to his will by which she would be given one third of his estate, and that nothing therein would be changed without the son’s consent, requested the witness to examine the will for himself. Accordingly, the witness repaired with the decedent to-the office of these accountants, and was shown the codicil revoking the marriage settlement and granting the thirds. He objected that the codicil could be annulled and the settlement thereby reinstated. The reply of the decedent, in the presence and hearing of the accountants, was that he would not revoke it, and that the instrument should be at all times open to the witness’s inspection. When the witness afterward reported to the claimant that he had read the codicil in question, and found it to be as represented, the decedent renewed his assurance to his wife in the most solemn and unqualified terms, that he would never revoke what he had there promised ; and asked whether in return she would forego the legal proceedings which she had threatened. She so promised. Two years afterwards he executed the codicil of revocation. This evidence, if competent and uncontradicted, established such fraud in the procuring of the contract as rendered the contract void. It certainly was uncontradicted, and the auditing judge believes was competent. The general principle, of course, is conceded, that parol declarations of either party, donor or beneficiary, to an instrument, will not be permitted to contradict what he has written in the deed: Frey v. Heydt, 116 Pa. 601. But this will have its exception, where those declarations are a part of the res gestee: Dinkle v. Marshall, 8 Binn. 587. See also the late case of Brooks v. First Presb. Church, 128 Pa. 408. That in this instance they entered into the heart of the transaction itself, there can be no manner of uncertainty. They were made to the claimant just before she signed the paper; they were false in fact, and were intended to deceive her, and their statements were the inducement to her action. Here the doubt may be interposed that a chancellor will not set aside an instrument upon the oath of a single witness, and with no corroborative circumstances. But that point does not arise (although confirmatory evidence followed in the subsequent events), because the burden of proof was, in the first instance, upon the accountants. It was their duty to show by affirmative evidence that no advantage was taken of the confidential relation in which the claimant and decedent stood, and that the claimant executed the contract with a full knowledge, not only of its provisions, but of their effect: Shea’s App., 121 Pa. 302. How far they failed to do this, has been already shown. But the auditing judge is entirely willing that all this reasoning shall be dismissed as inconclusive. He will then rest his decision upon another proposition. The evidence established a new promise, with a valid consideration behind it; and nothing can avail to prevent a recovery by the claimant on that promise. The undertaking was to give her one third of the estate, and the consideration was her refraining from suit. It makes little or no difference that the testator chose to put that promise in the shape of an instrument which bore a revocable character; this suit is upon the promise which was complete before the codicil was written, and of which the codicil is only collateral proof. The accountant’s case is not aided by the circumstance that the vehicle of the promise was selected on account of its easy adaptability to fraud. The oath of one witness was sufficient to make out the undertaking, but in reality there were three witnesses. The decedent’s pledge to retain the codicil unchanged was given to the witness who repeated it, and in the presence and hearing of the accountants ; and it was not denied by counsel. The argument of the latter was, not that such a pledge had not been made, but simply that it was not binding. The auditing judge, does not, however, propose to discuss at greater length the questions which he has barely touched, because they will undoubtedly be carefully considered by the court in banc. He admits the claim of the widow to share in the estate as though the testator had died intestate, and as though no marriage settlement existed. Exceptions to the adjudication and the distribution directed thereunder, filed by Charles M. Lukens and Thomas M. Montgomery, trustees, and Thomas H. Kesler and George Kesler, cestuis que trust, having been argued before the court in banc, the court, Hanna, P. J., on January 18, 1890, filed the following opinion: In Tiernan v. Binns, 92 Pa. 253, the present Chief Justice said: “ I see no reason why the law should regard with disfavor an ante-nuptial contract, especially where, as here, it was entered into by parties each of whom was advanced in years, with separate children and separate estates. Persons so situated do not usually act from mere impulse, or contract without consideration. Such family arrangements, in many instances, reconcile differences and avoid unpleasant disputes. Where they are free from fraud, there is no reason why they should not be enforced.” ' ’What is here said is strikingly applicable in the present instance; and the deed of marriage settlement between testator and the claimant, then his intended wife, should not be set aside except upon evidence of fraud or concealment, deception or misrepresentation, the equivalent of actual fraud. We have carefully considered the entire testimony; and, apart from the evidence of imposition and deceit, practiced by testator to obtain the execution of the marriage settlement by his intended wife, and of his subsequent contract with her not to alter or revoke the codicil to his will, which expressly set aside the deed of settlement and gave her the full one third part of his estate, no reason is shown to justify the interference of a court of equity to prevent the execution of the contract. The testator was seventy-three years old, with children by a former marriage; and the claimant was a widow between thirty and forty years old,' a mother, and possessed of more than ordinary intelligence and education. She was informed by testator of the preparation of the deed of marriage settlement, and two days prior to the marriage, at his request, accompanied the wife of one of his sons to the office of his conveyancers, where a written statement of his entire estate, real and personal, prepared by the conveyancers, was submitted and read to her, after which the deed of settlement was also read to her in the presence of testator and his daughter-in-law; and, in reply to the inquiry of the scrivener whether she had any questions to ask concerning the deed, claimant replied she had not, and that she understood and was fully satisfied with it. She then, together with testator, executed the deed, in the presence of disinterested witnesses, and acknowledged it before a notary, who carefully observed the time-honored formula. Thus, every requirement of the law seems to be complied with. A full disclosure was made to the intended wife, and every opportunity afforded her, either to obtain information as to the nature and character of the instrument she came prepared to execute, or object to its execution, if ignorant of its contents or deceived as to its purpose and object. She was not illiterate : Shea’s App., 121 Pa. 302; but intelligent and well educated. She was not young and inexperienced, but of mature years and acquainted with marital'duties and rights. She was a free agent, of sound mind, and fully capable of protecting herself. Nor was she under duress or constraint. The deed of settlement, although of great length, is in the usual form adopted by careful and accomplished conveyancers; and its preamble, in clear and perspicuous language, easily comprehended by a person of even ordinary intelligence, specified the terms and objects of the agreement entered into between the parties. That it was fully understood by the claimant, we think there can be no doubt. And from her necessitous circumstances it is not wholly improbable she was content, assured of the maintenance and comforts afforded by her future husband’s wealth during his lifetime, and the secured annuity of six hundred dollars for her life after his death, to relinquish all further claim upon his estate. Apart from the testimony, not yet referred to, we think the testator, as husband, did all he was obliged to do, in order to give his intended wife such knowledge of his estate as would enable her to act intelligently. There is no concealment, bat, on the contrary, ample disclosure. The conveyancers who prepared the deed, and therein selected by the parties as their trustees, acted with fairness, candor and good faith. As already stated, one of their number prepared the schedule of property and deed, and read both to the intended wife, and, with perfect honesty and integrity as a wholly impartial and disinterested business man, inquired if she understood and was satisfied with it. We cannot conceive he was bound to do more. He then saw the claimant for the first time, but knew her errand to his office. And there is no evidence that either he, or his copartner, had the slightest intimation or knowledge of any deceit or misrepresentation by testator, to accomplish the execution of the deed by his intended wife. Under the facts shown, the law presumes the claimant fully understood the contents of the deed, and willingly executed it; and the conveyancer, who read to her the deed, might well from her acts and declarations reach the same conclusion. But it was strongly urged at the argument that the trustees were derelict, and failed fully to perform their duty; that it was incumbent upon them to advise and instruct the claimant as to her rights under the law, ascertain whether she had made a calculation of the value of her interest in her intended husband’s estate, or had obtained advice, perhaps, in relation to her rights as wife and widow, and the propriety of the execution by her of the deed of settlement. But we do not understand this formed any part of their duties. They were trustees both for testator during his life, and for his intended wife only in the event of her surviving him. Their duties as trustees for them did not commence till then. And furthermore, the trust was only as to the fifteen thousand dollars set apart to pay her annuity. We therefore think the relation between the claimant and the trustees in the deed is misconceived. But irrespective of this question, the auditing judge has found as a fact that the deed was executed by claimant through misrepresentation and fraud, practiced upon her by her intended husband, and under the belief and confidence in his assurances that the provision thereby made was wholly independent of her share in his estate, and to provide for her in case of his death or difficulty with his family. This testimony is not shown to be unworthy of belief, nor are the conclusions of fact shown to be unsupported by evidence. If, then, the claimant was duped and deceived by her intended husband, and by his falsehood and deception led to enter into the marriage contract, whereby, to adopt the language of the auditing judge, “she was bartering an absolute interest of thirty-six thousand dollars in cash and a life interest in real estate for an income of fifty dollars per month,” it should be set aside. By reason of the confidential relation between the parties, the utmost good faith is required. Confidence is reposed by each in the other, and if that confidence is abused, courts of equity will grant relief: Story’s Eq., § 308; Bispham’s Eq., § 230. And among the many cases upon the subject may be cited: Kline v. Kline, 57 Pa. 123; Darlington’s App., 86 Pa. 512; Smith’s App., 115 Pa. 319; Shea’s Appeal, supra; and Neely’s App., 124 Pa. 406. But a still more cogent reason appéars for a total disregard of the marriage settlement and allowance of the claim of the widow; and that is, the failure of testator to comply with his undertaking and agreement with her not to annul the codicil to his will whereby he had revoked the deed of marriage settlement, upon the faith of which promise and undertaking she withdrew from the legal proceedings she was about to institute to set aside the deed. That testator entered into such a contract with his wife, is fully proved and uncontradicted. On August 18, 1885, he. executed a codicil revoking the marriage settlement, and bequeathed his wife one full third part of his estate. In 1886, or early in 1887, having discovered the imposition practiced by her husband, whereby she was induced to execute the deed of marriage settlement, she consulted counsel with a view to institute legal proceedings to annul the deed. In consequence of notice from counsel of his wife’s intention, testator sought the intervention of a son-in-law, who seems to have been the confidant of all his domestic troubles, and invoked his aid to secure a reconciliation. His mediation resulted in the assurance and promise by testator to his wife that, if she would become reconciled and withdraw the threatened iitigation, he would not destroy or alter in any manner the codicil of 1885, without first informing her and his son-in-law. Upon the faith of this promise and undertaking, testator’s wife withdrew from her contemplated legal proceedings, and, confiding in the promise made by her husband, continued upon amicable relations with him until his death on June 23, 1888. The subsequent action of testator, however, proved that little reliance could be placed upon his promise, and verified the statement by his wife to him during the negotiations for a settlement before referred to, that “ You played a trick on me, and if you will in one instance you will in another.” For, upon his death, it was discovered that on October 28, 1887, he had executed a further codicil, whereby he revoked the prior codicils of October, 1884, and August, 1885, thus reinstating the provisions of the deed of marriage settlement, and giving her an additional annuity of six hundred dollars per annum during life, which he magnanimously provided should cease upon her re-marriage. It will surely not be contended that this wilful disregard of his promise and flagrant violation of his contract will be countenanced by a court of equity. The promise was made upon a consideration always recognized as valuable, and therefore binding, and this was the agreement of his wife to withdraw her threatened legal contest and the resumption of marital relations with him. Upon a similar principle, a promise to compensate for services rendered, by leaving a legacy, is held to be founded upon a good consideration, and may be enforced: Thompson v. Stevens, 71 Pa. 161; Hartman’s App., 3 Gr. 271; Cottrell’s App., 4 W. N. 237; Pollock v. Ray, 85 Pa. 428. The consideration, moreover, was a compromise of a family disagreement and difficulty, which is favored in equity if made in good faith and with a full disclosure: Bispham’s Eq., 192; Walworth v. Abel, 52 Pa. 370; Wilen’s App., 105 Pa. 121; and Burkholder’s App., 105 Pa. 31, which is precisely in point with the case now before us, and where the entire subject is fully considered by the present Chief Justice. There the contract was post-nuptial, but the object was to settle the differences between husband and wife which caused the latter to abandon her husband. They afterwards became reconciled, and executed a deed under seal, whereby, in consideration of the compromise of the differences theretofore existing between them, they should enjoy their separate estates therein set forth; and it was held there was sufficient consideration to support a provision in favor of the wife’s issue by her former marriage, contingent upon the husband surviving the wife and dying, which upon his death will be enforced in a settlement of his estate. And it would appear from O’Keson v. Barclay, 2 P. & W. 531, where it is held that the compromise of an action of slander, in which the words laid in the declaration are not actionable, is a good consideration for a note for the payment of the money; that the wife gave a good consideration for the promise and undertaking by her husband, even though she might be unsuccessful in her suit to annul the deed. We accordingly conclude that, by reason of the failure of testator to comply with the terms of his contract, if no other valid reason be shown, the claimant should not be barred from asserting her claim to take against the will, notwithstanding the deed of ante-nuptial settlement; and she is entitled to one third of the personal estate absolutely, as if her husband died intestate. —A decree of distribution in accordance with the foregoing opinion having been entered, the exceptants took this appeal, specifying that the court erred: 1. In awarding to Mary R. Kesler one third part of the personal estate. 3. In ruling that the statement to the wife by the husband that he had given her one third by will, followed by her refraining from leaving his house and stopping proceedings to avoid the deed of marriage settlement, constituted a contract that the wife can now enforce against her husband’s estate.
143 Pa. 408Hand v. Clearfield Coal Co. (1891)
No. 178 January Term 1891, Sup. Ct.; court below, No. 815 June Term 1888, C. P. On June 24,1888, Elmer E. Hand brought assumpsit against the Clearfield Consolidated Coal Company, a corporation. Issue. At the trial on October 13, 1890, the plaintiff adduced testimony to show that he first entered the service of the defendant company temporarily on November 1, 1887, in the office of Samuel P. Langdon, the president of the company; that in January, 1888, he was about to take employment elsewhere, when he was told by Mr. Langdon to let the matter rest for the present; that a few days afterward he met Mr. Langdon, who said to him, “ Hand, I fixed that thing for you; we will give you $1,800 from the first day of February, for one year’s services,” and the plaintiff accepted the offer; and that at a meeting of the board of directors on February 20, 1888, the following action was minuted: “ The question of the salary of the assistant to the president and secretary was here taken up, and on motion of Mr. Cox, seconded by Mr. W. P. Davis, it was, “ Resolved: That the salary of the assistant to the president and secretary be $1,800 yearly, and that it be divided as follows : $1,850 yearly as secretary, and $450 yearly as assistant to the president. “Resolved: That the following named gentlemen be and are hereby appointed officers for the following year: President and treasurer, Samuel P. Langdon; assistant to the president and secretary, Elmer E. Hand; assistant treasurer, William P. Brown.” The plaintiff testified that he rendered services and received his salary at the rate of $150 per month, including the month of June, 1888, and that on June 28th, without cause or reasons given, he was discharged, the following corporate minute being made: “ On motion of Mr. Levan, seconded by Mr. Davis, the services of E. E. Hand be dispensed with, to date from June 1888; it was so ordered.” It was shown that the plaintiff had made unsuccessful efforts to obtain employment after his discharge, but received several small amounts of money as commissions on sales made by him in the latter part of the year. On behalf of the defendant, a clerk of the company gave testimony of a general nature, to the effect that the business •manners of the plaintiff were “ unpleasant,” “ overbearing,” “ domineering,” “ frequent little spats, back and forth; ” that one mistake in shipping was made by him, causing extra freight charges, and that he appeared to have outside matters on hand. All these allegations were denied by the plaintiff, At the close of the testimony, the court, Fell, J., charged the jury: This action is brought to recover damages for an alleged breach of contract between the plaintiff and the defendant corporation. The plaintiff’s allegation is this: That he entered into a contract with the Clearfield Consolidated Coal Company on January 15, 1888, to serve them as secretary and assistant to the president for a period of one year, commencing February 1, 1888; that'he was discharged without cause on June 30, 1888. As a measure of damages for the breach of that contract, he claims the recovery of his salary, at the rate of $150 per month, for seven months, from July 1, 1888, to February 1, 1889. If a man is employed by another for a definite term, and is discharged without cause before the expiration of that term, it is a breach of contract upon the part of his employer, and the proper measure of damages for the breach of contract is what he would have earned if the contract had not been broken, less what he did earn after it was broken. He cannot sit down and refuse employment, or be indifferent whether he earns anything or not after the .contract is broken. It is his duty to make a reasonable effort to obtain reasonable employment, and what he receives from it is to be deducted from what he would have received under the terms of his contract. If, on the other hand, his discharge was for cause, there could be no recovery whatever. If an employee fails in the faithful performance of the duties for which he has been employed ; if his conduct, however honest, is such as to create a fair doubt of his integrity; or, if in his relation to his fellow-employees he is unreasonable, arbitrary and quarrelsome to such an extent as to interfere with his usefulness and with theirs, and with the proper discharge of his duties and theirs, there is a just ground for his discharge.- That is, it is his duty to faithfully do the work for which he is employed. It is his duty in his relation to his follow-employee, as far as that relation affects the interest of his employer, to properly conduct himself. With the testimony before you, it is for you to say: First, whether this discharge was for a just cause or not; if it was for a just cause, plaintiff is not entitled to recover; and if there was no just cause for the discharge, then he is entitled to recover here, and the measure of damages is the difference between what he would have earned during these seven months, under the terms of his employment, and what he did earn after his discharge, the sum of some two hundred dollars. I have been asked to answer some points submitted by the counsel for the defendant: 1. If the resolution by which plaintiff was elected as secretary and assistant to the president fixed a period of service, it was an election subject to the right of rescission, if the board deemed it best to do so ; and if, in the exercise of this discretion, the directors by resolution concluded to rescind, they had a right to do so, and, having done so, the verdict should be for the defendant. Answer: This is refused.1 2. If the plaintiff performed his work in a manner not satisfactory to the company, or if his manners were objectionable, and by reason thereof his relations to other employees of defendant were not entirely harmonious, the company defendant had a right to dismiss him and dispense with his services, and the verdict should be for the defendant. Answer: If his manner was such as to interfere with the business of the company, by impairing his usefulness or the usefulness of other employees, by preventing a proper discharge of his duties or the proper discharge of the duties of others, then they were justified in discharging him.2 3. If the defendant company were satisfied that the conduct and actions of plaintiff were such as not to advance the best interests of the company, and in the exercise of a reasonable discretion they concluded to dispense with his services, they had a right to do so, and the verdict should be for the defendant. Answer: I affirm that, but you will remember that in affirming it I do not leave it to the company as the sole judge of whether the ground of his discharge was reasonable or not. Here is a question for you to determine under the evidencé in the case. 4. Under all the evidence the verdict should be for defendant. Answer: This is refused.3 —The jury returned a verdict in favor of the plaintiff for $946.40. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error: 1-3. The answers to the defendant’s points.1 to 3
143 Pa. 414Change of Grade in Plan 166 (1891)
Nos. 318, 319, 304, 223, 224 January Term 1891, Sup. Ct. Plan 166. On June 10, 1886, C. H. Clark filed in the court below a petition averring that, on November 2, 1885, by virtue of an ordinance approved June 23, 1884, certain changes in grade on Plan 166 of the city of Philadelphia were confirmed by the board of surveys, and praying for the appointment of a jury to ascertain the damages resulting from such changes to certain real estate of the petitioner situated within the limits covered by said plan. Subsequently, Mr. IS. Spencer Miller, assistant city solicitor, obtained a rule upon the petitioner to show cause why the petition should not be dismissed, the reason assigned for such dismissal being that § 27, act of February 2, 1854, P. L. 37, was replaced by § 1, article IV., act of June 1, 1885, P. L. 43. After hearing, the rule was discharged.1 A jury, appointed in pursuance of the prayer of the petition, reported on January 22, 1891, finding in substance that, prior to February 4, 1878, the survey plan, covering the locality in question, was one confirmed by the Court of Quarter Sessions on March 28, 1860; that the plaintiff purchased his property between the two dates mentioned; that on February 4, 1878, a revised plan was adopted, lowering the grade levels of a number of the streets bordering upon the petitioner’s property; that no work was done upon the petitioner’s property prior to November 2, 1885, toward making the same conform to the grades of 1878, except the partial grading of the sidewalks on Chester Avenue, a street opened by deed of dedication in 1883, and that no expenditure whatsoever was at any time incurred by the petitioner in reliance upon the grades of 1878, because of which he made claim, except that some thousands of cubic yards of dirt had been dumped into some of the holes; that none of the streets touching the petitioner’s property had been graded to conform to the plan of 1878, except Chester Avenue, and upon that street no curbing or paving had been done at the time of the revision of 1885; that the effect of the revision of 1885, upon which the petitioner’s claim for damages was based, was to place the street levels approximately at the elevation of the plan of 1860, although somewhat lower; that the jury estimated the difference between the value of the petitioner’s property according to the plan of 1878, and its value according to the grades established by the plan of 1885, at $12,000, which sum they awarded to him subject to the opinion of the court upon the matters stated in the report, but that, comparing the value of the property according to the plan of 1860, with its value according to the plan of 1885, the latter plan was not less favorable to the property than was the former. Exceptions to the report were filed by the city, inter alia, as follows: 1. The jury erred in awarding damages for the change of grades of merely plotted streets, not constructed or opened, to wit: Forty-fourth street, Forty-fifth street, and Kingsessing Avenue.2 4. The jury erred in awarding damages for the change of grades effected November 2, 1885, when it appeared that said change only restored the grade substantially equivalent to that prevailing when claimant purchased. 5. The jury erred in awarding damages for a change of grade to a property owner who had not thereby suffered depreciation of improvements erected in reliance upon the former grade.3 —At the argument upon the exceptions, on January 31, 1891, an agreement of counsel was filed, to wit: “ It is agreed for the purposes of all proceedings, based upon the report filed, that claimant has sustained no damage or injury by the confirmation of the grades of 1885, if the said grades be compared exclusively with those upon the plan of 1860, and the plan of 1878 be disregarded.” On the same day, the court, without opinion filed, entered the following decree: “ Ordered that the fourth exception filed be sustained, the remaining exceptions be dismissed, and that the award of the jury be set aside; petition dismissed.” Thereupon both the petitioner and the city took appeals to the Supreme Court. The assignments of error in the appeal of the petitioner were not printed in his paper-book. The city assigned for error: 1. The discharge of the rule to dismiss the petition.1 2. The dismissal of the city’s first exception.2 8. The dismissal of: the city’s fifth exception.3 Ajllen’s Lane. On January 25, 1890, John Hamilton and others filed in the court below a petition for the assessment of damages for a change in the grade of Allen’s Lane, by revision confirmed August 5, 1889. A jury, appointed in pursuance of the prayer of the petition, reported on September 27, 1890, finding that there had been two grades of Allen’s Lane duly confirmed; that the first, following the natural surface of the land, was confirmed by the court on June 28, 1869, and that the second, confirmed by the board of surveyors on August 5,1889, entirely altered the grade of 1869 ; and awarding damages to the petitioners, “ caused by the change of grade from the natural surface of Allen’s Lane to the confirmed grade of 1889.” To the report of the jury, the city of Philadelphia filed, inter alia, the following exception: “4. The court is without jurisdiction, as the act of 1854, under which these proceedings were instituted, was repealed by the act of June 1, 1885, and the remedy of said claimants is by an action of trespass, and not by a petition for a road jury.” The court having entered a decree without opinion filed, dismissing the exceptions and confirming the report, the city appealed to the Supreme Court, assigning for error : 1. The dismissal of the appellant’s exception.
143 Pa. 430Ogden v. City of Philadelphia (1891)
Nos. 246, 247 January Term 1891, Sup. Ct.; court below, Nos. 186, 244 September Term 1888, C. P. No. 1. On October 8, 1888, the city of Philadelphia filed in the court below its appeal from the report of a jury of view, appointed by the Court of Quarter Sessions, assessing damages in favor of Richard T. Ogden, for a change of grade of North street. On October 10th, a similar appeal from an award of damages made by the same jury in favor of Margaret H. Ellis was filed.
143 Pa. 435Arrott St.-P. Mills Co. v. Way Mfg. Co. (1891)
No. 202 July Term 1890, Sup. Ct.; court below, number and term not shown. On April 15, 1889, the Arrott Steam-Power Mills Company, a corporation, brought assumpsit against the Way Manufacturing Company, Limited. Issue. At the trial, on April 7, 1890, the plaintiff introduced testimony tending to show, as was claimed: That, on. April 1, 1883, William Arrott, the owner of a factory building in Philadelphia, made a parol lease of the fifth floor of the same to J. Howard Way, Pennington Way, A. T. Evanson and Hunter Evanson, trading as J. H. Way, Brother & Co., at an annual rental of $1,500, payable monthly. That, on July 9, 1883, the Arrott Steam-Power Mills Company, the plaintiff herein, was duly incorporated under the act of April 29, 1874, P. L. 73 ; and that on or about July 13, 1882, said William Arrott sold and conveyed the factory buildings to the said company, subject to all subsisting leases. That the plaintiff company, by William Arrott, its president, leased by parol to the same firm of J. H. Way, Brother & Co., on April 15, 1885, one half the fourth floor of the factory building, at an annual rental of $1,000, pajmble monthly; on October 15, 1885, a warehouse connected with said building at the annual rental of $250, payable monthly; and, on January 20, 1886, the other half of the fourth floor of the building, at an annual rental of $1,000, payable monthly. That William Arrott died on September 11, 1886, and his son, William H. Arrott, succeeded him as president of the plaintiff company; that, prior to November, 1886, the firm of J. H. Way, Brother & Co. dissolved, and was succeeded by the firm of J. H. Way & Brother, composed of J. Howard Way and Pennington Way, the latter firm assuming all the liabilities of its predecessor as to existing leases. That, on November 6, 1886, the plaintiff company, by William H. Arrott its president, leased to the firm of J. H. Way & Brother the third floor of the factory building, at the annual rental of $2,000 per annum, payable monthly. That in July, 1888, the Way Manufacturing Co., Limited, the defendant firm, was organized, composed of J. Howard Way, Pennington Way, A. T. Evanson and Hunter Evanson, the same individuals formerly constituting the firm of J. H. Way, Brother & Co., and this firm assumed the liabilities of their predecessor upon the leases then subsisting. That on January 31, 1889, the defendant firm, after having given one month’s notice of their intention so to do, vacated the premises occupied by them. The plaintiff company afterward brought this suit, claiming to recover $1,178.71, as a balance of rents due for February and March, 1889, and certain unsettled balances for gas and power supplied. J. Howard Way being called as a witness in bebalf of the defendant firm, his counsel proposed to prove by him a conversation which took place between William Arrott, deceased, and the witness in 1888, as to the renting of the fifth floor in the factory. Objected to. By the court: Objection overruled. The witness then testified, in substance, that he was the member of the firms occupying the premises who attended to the arrangements with the Arrotts for the lettings; that, referring to a conversation which occurred in regard to the renting the additional floor, the witness remembered the defendant firm was to take it at the rental proposed on the terms of the original letting in 1883, and that the terms of the original letting on April 1, 1883, were settled in a conversation between the witness and William Arrott. Mr. Bispham: “ Q. State what passed at that conversation ? ” Objected to. By the court: Objection overruled; exception.2 “ Q. State what those terms were under which you held the property you rented from William Arrott, Sr.; state the terms of your tenancy, and what conversation you had with Mr. William Arrott?” Objected to. By the court: Objection overruled; exception.3 The witness then testified that in negotiating with Williftm Arrott, deceased, in March, 1883, prior to the renting of April 1st, he told Arrott he wanted a lease for two years, and Arrott said: “ 1 don’t give leases. I never have a lease; I want my tenants to be perfectly satisfied. If they are not satisfied I want them to get right out; and I want them in there in such a shape that if I am not satisfied with them I can make them get right out;.....I have them in there on those terms, and therefore I want them in there on this monthly rental. ” The witness thezz testified, in substance, that the defendant firm rented that room, the fifth floor, at $125 per month, and on that original letting rented the others afterward : “ I don’t recollect any conversation at the other rentals, any further than stating we would take the rooms or such portions of the rooms at the usual way of renting.” Mr. Bispham: “ Q. Then, I understand you to say that the original letting was frozn month to month ? ” Objected to. By the court: Objection overruled ; exception.4 “ Q. My understanding of what you said was, that the original letting in 1883 was from month to month, and the additional rooms were taken upon the same terms ? A. Yes, sir. Q. You gave one month’s notice to quit? A. We did, the company did.” It was shown, further, that bills for the rental, etc., were rendered monthly, and that after each additional room or space was taken, the bill rendered was for the rent, etc., of all together at the aggregate of the rents agreed to be paid. In rebuttal, the plaintiff company made the following offers: “ Counsel for plaintiff pffers to show in rebuttal Mr. William Arrott’s custom in the way of renting.” By the court: Offer overruled; exception.5 “ Counsel for plaintiff offers to call Mr. Murphy to show what Mr. William Arrott told him as to the renting to these parties.” By the court: Offer overruled; exception.6 William H. Arrott, called for plaintiff: “ Q. What is the usage of the Arrott Steam-Power Mills Company, as to renting in like cases since these gentlemen first went in there ? ” Objected to. By the court: Objection sustained; exception.7 At the close of the testimony, the court, Finlextee, P. J., charged the jury in part as follows: In this case, the plaintiff claims that the renting was from year to year and by the year. The defence have said that it was a letting by the month. If this had been a single house or a single room which had been rented, the present plaintiff and the present defendants would have been bound by the conversation such as it was at the time the agreement was made for the last room in November, 1886; but, inasmuch as the tenants had been .in possession of the premises or of several rooms anterior to that, and as this was a combination of the rentals, at least a fixing of the time that the rent should run from, the fact that the defendants occupied them before becomes a very important thing; because, if they went in under William Arrott at a monthly renting, then that contract continued, no matter who became the owner of the premises, until a contrary or a different contract was entered into between the parties. [So, it is very important that you should at the very outset determine what the contract between William Arrott, deceased, and these parties was; because, as it referred to a large proportion of the premises, it must of course be considered that it in some way entered into the arrangement which was made-in November, 1886.] 8 If you should be of the opinion, from the testimony, that William Arrott rented to these defendants by the month, then you will consider the conversation which was had between the parties when this additional renting and this contract was made between the present plaintiff and the defendants. In all matters of this kind, you must gather what the parties meant, in any act they did, from the conversation they had at the time. Now the defendant (Mr. Way) has sworn that he specifically called the attention of the present plaintiff to the fact that he took the additional rooms and entered into this second arrangement upon the same terms that he had with the father, William Arrott, deceased. If you are satisfied that that conversation was had, then it raises the question, What were the terms upon which these defendants held from William Arrott? Mr. Arrott is dead, and of course there is no one to contradict the defendant in relation to the terms upon which he held under William Arrott. There is, however, this to say about it, that William Arrott’s son was with his father employed in business in some way from the time these defendants went in. The secretary of the present plaintiff was also in William Arrott’s employment, and has continued in that employment and business, holding the same relation to the son as he had held to the father, private secretary, and also being secretary and treasurer of this company. [Under such circumstances, it would be very natural to suppose that William II. Arrott had some understanding of the terms under which the defendants held under his father. At all events, if that conversation was had, it was his duty at that time either to ascertain what the terms were, or, not having done that, the presumption would naturally be that he understood what they were.] 9 It leaves but the single question for you; first, to determine under what terms William Arrott had rented, and, secondly, whether the additional rooms were taken and the additional agreement as to time made upon the basis of the letting by which the defendants held under William Arrott. There is this to say: That whilst a letting ordinarily is from year to year, that might not be the proper method by which a whole factory would be rented, or the different parts of a large establishment like this. It might very well be in the interest of the owner of a large factory, who had many or several tenants, and to the interest of his tenants, that lie should hold control over every one who came there to rent; that is, to be able to put out an unpleasant and disagreeable tenant whenever the month expired; because, you can understand that in a place like this one tenant might make himself extremely disagreeable, not only to the landlord, but to all who occupied the place, and that might be of such a character as to make the rest of the mill or the proper use of the rest of the mill by itself useless or worthless. [So that, whilst ordinarily a renting, if nothing is said, is from year to year, it might very well be that the proper way to let out a large factory like this would be to let it out in such a manner as that the landlord would have reasonable control, over all the tenants, and be able to put out an objectionable man whenever the necessity arose.] 10 However, it is your province to decide between these two parties. They might have settled the matter by a very easy understanding at the time this last contract was made, but not having done so and disagreeing about it, you must determine this case upon the evidence that has been produced. —The jury returned a verdict for the plaintiff for 1222.57. A rule for a new trial having been discharged and judgment entered, the plaintiff took this appeal, assigning for error: 2-4. The admission of the defendants’ offers.2 to 4 5-7. The refusal of the plaintiff’s offers.5 to 7 8-10. The portions of the charge embraced in [ ] 8 to 10
143 Pa. 444Philadelphia v. Ridge Ave. Pass. Ry. Co. (1891)
No. 127 January Term 1891, Sup. Ct.; court below, No. 755 December Term 1886, C. P. No. 1. On January 26, 1887, the city of Philadelphia brought case against the Ridge Avenue Passenger Railway Company, to recover from the defendant company the cost to the plaintiff of re-paving Ninth street from Race to Sergeant. Issue on June 9, 1890.* On November 1, 1890, upon the petition of the defendant company, verified by the affidavit of its president, a rule was granted to show cause why there should not be a change of venue. This petition, and the relevant provisions of the act of March 30, 1875, P. L. 35, are shown in the opinion of the Supreme Court, infra. When the cause was called for trial and a jury drawn, on November 10, 1890, Allison, P. J., delivering an oral opinion, the rule for a change of venue was discharged.1 Thereupon, the defendant, by its counsel, filed an exception, to the jurisdiction of the court, and a protest against a trial before the jury about to be sworn. By the court: Objection overruled; exception.2 The jury being sworn, the plaintiff put in evidence the act of April 15, 1858, P. L. 300, reading §§ 7 and 8 thereof, providing as follows: “ § 7......And provided further, that the city councils may from time to time, by ordinance, establish such regulations in regard to said railway as may be required for the paving, repaving, grading, culverting, and the laying of gas and water pipes in and along said streets, and to prevent obstruction thereon : And provided further, that before the said company shall use and occupy the said streets, the consent of the city councils shall be first obtained; and said consent shall be taken and deemed to have been given, if said councils shall not within thirty days after the passage of this act, by ordinance duly passed, signify their disapproval thereof. “ § 8. That said company, in constructing said road, shall conform to the grades now established, or hereafter to be by law established, of the several streets and avenues traversed by said road, and keep said streets and avenues in perpetual good repair, at the proper expense of said company: Provided, that said Girard College Passenger Railway Company shall be subject to an ordinance of the city councils, entitled ‘An ordinance to regulate passenger railways within the city of Philadelphia,’ approved the seventh day of July, Anno Domini one thousand eight hundred and fifty-seven.” Also, the city ordinance of May 5, 1858, Ordinances, 175. This ordinance, referring in its preamble to the act of April 15, 1858, P. L. 300, above cited, and other acts relating to other railway companies, enacted in § 1 that councils did thereby declare their disapproval of each and every of said acts and of the rights therein respectively granted to the railway companies therein mentioned; and in “ § 2. That if any company in said preamble named shall within ninety days from the passage of this ordinance and before such company shall occupy any of the said streets or highways, file in the office of the city solicitor a written obligation sufficient in law to bind such company to observe and be subject to all ordinances of the city in reference to passenger railways then in force or thereafter to be passed, then the provisions of the first section of this ordinance as to each and every such company as shall file the written obligation as aforesaid shall cease to have effect.” The plaintiff then offered the “ written obligation” of the defendant company, bearing date July 29, 1858, and filed in the office of the city solicitor on July 31, 1858, which, after setting out the foregoing ordinance, and the minutes of the stockholders’ meeting authorizing the execution of the obligation proceeded : “ These presents witness, that, for and in consideration of the consent, permission, and authority given and granted as aforesaid by the said city, to said company, to occupy certain highways of said city with the railway of said company, as in their charter is more fully and at large set forth, that the said company, by this, their written obligation, subscribed by their president and secretary, duly empowered for that purpose, do covenant and agree with the said city that the said company shall now and at ail times hereafter be bound to observe and be subject to all ordinances of said city in reference to passenger railways now In force or hereafter to be passed as aforesaid; and said company hereby say that the true and sole intent and purpose of these presents is to declare that said company is now and shall be at all times hereafter bound to observe and be subject to all and several the ordinances aforesaid. “In Testimony Whereof, The president and secretary of said company have hereunto set their hands and corporate seal of the said company, this twenty-ninth day of July, Anno Domini 1858, at Philadelphia aforesaid.” The defendant’s counsel objected to the offer, because of its legal invalidity to bind the corporation to any other terms than those imposed by the act of assembly. By the court: Offer admitted.3 The plaintiff then put in evidence the agreement of merger executed by and between the Girard College Passenger Railway Company, and the Ridge Avenue & Manayunk Passenger Railway Company, dated January 23, 1872, the consolidated company thereafter to be known as the Ridge Avenue Passenger Railway Company. Also, the city ordinance of July 7, 1857, Ordinances, 248, (the ordinance refered to in § 8, act of April 15, 1858,* quoted supra,) reading §§ 3 and 9 of the same. Pertinent portions of this ordinance are quoted in the opinion of the Supreme Court, infra. Section 9, not quoted in said opinion, provided in part as follows: “ § 9. Any passenger railroad company which is now or may hereafter be incorporated in the city of Philadelphia, shall, by their proper officer or officers who shall sign the same, file in the office of the city solicitor a written obligation to comply with the provisions of this ordinance.” The plaintiff then offered: (1) The city ordinance of December 12, 1881, Ordinances, 263, enacting as follows: “ § 1.....That on and after the passage of this ordinance, it shall be unlawful to pave with cobble or rubble pavement any street in the city of Philadelphia, or to pave the gutters of any street with bricks: Provided, That this ordinance shall not apply to that portion of any street between the tracks of a passenger-railway company, nor shall it affect existing contracts.” And (2) a resolution of councils of May 6, 1886, Journal of Common Council, 82, as follows: “ Resolved, That the chief commissioner of highways be and is hereby authorized to notify any railway company or companies that may pass over a square or squares where Belgian blocks in place of cobblestones are necessary, to forthwith re-pave accordingly; and in the event of the said company neglecting or refusing to re-pave, as directed, within ten days from the date of said notice, then councils hereby authorize the said commissioner of highways to re-pave the same at the expense of the said railway company, and the cost thereof shall be paid by the railway company, and in default of the said company paying the same, after the notice from the highway department, then the city solicitor shall take proceedings to collect the amount thereof, with interest and costs.” .... These offers, (1) and (2), were objected to, on the ground of their invalidity to bind the defendant company. By the court: Objection overruled; exception.4 The plaintiff then proved and put in evidence a notice from the chief commissioner of highways, served upon the defendant company July 23, 1886, reciting the resolution of May 6, 1886, and notifying the company to re-pave Ninth street, from Race to Sergeant, with Belgian block, within ten days from the date thereof; and that in case of its neglect or refusal to do the same within the time specified, the commissioner would cause the same to be done at the company’s expense. It was then shown that the said notice not being complied with, the work was done by the city. This suit was for the cost thereof. “ The defendants decline to offer any testimony, under the exception taken to the jurisdiction of the court.” The case being closed on the testimony, the court, Allison, P. J., charged the jury: This case which we have been engaged in trying yesterday and so far to-day, is to be determined mainly upon the view of the law which I take of the question, as it stands upon its legal aspects; and you will be very much guided, therefore, by the instructions which I am required to give you as to what I think is the proper legal principles governing and controlling the case before us. The questions submitted by the points which I have been asked to charge the jury upon, as submitted by the plaintiff, are mainly questions which affect the construction of the acts of assembly, the ordinances of councils, and the agreement of the defendant company filed in pursuance of the ordinance of councils, and those are purely and entirely questions of law upon which I shall give you directions in a moment. That applies to the first, second, and third points. As to the fourth point, there is a question of fact raised by that point upon which I will say something to the jury, and so also of the fifth and sixth points. Now, the plaintiff has asked me to say to you: 1. That the Ridge Avenue Passenger Railway Company is bound by all the charter obligations of the Girard College Passenger Railway Company. Answer: I affirm that proposition, because the Ridge Avenue & Manayunk Passenger railway and the Girard College Passenger railway became consolidated under the laws of this commonwealth; and having consolidated and merged, the present corporation became liable to all the obligations of the two corporations; that is, of the first and of the second coming together and merging their corporate existence into the present corporation, which represents the two, and stands under precisely the same obligations under which the several companies stood at the time when that merger took place. I therefore affirm that proposition. 2. That the Ridge Avenue Passenger Railway Company is subjected by the act of April 15, 1858, chartering the Girard College Passenger Railway Company, to the ordinance of July 7, 1857. Answer: That ordinance you will probably recall, as it was referred to by counsel, and the substance of it was stated, and I affirm that proposition. That was an existing ordinance at the time the Ridge Avenue Passenger Railway Company was chartered, and the company then chartered was made subject to the provisions of the ordinance of 1857. 3. That the Ridge Avenue Passenger Railway Company is by the corporate obligation of the Girard College Passenger Railway Company of July 29, 1858, subjected to all the provisions of the ordinance of July 7, 1857. Answer: Those two points merely ask me to say to you that the two corporations which were merged, the Ridge Avenue & Manayunk Passenger Railway Company and the Girard College Passenger Railway Company, were, each of them, subject to that ordinance of July 7, 1857; they are jointly subject to that ordinance of July 7, 1857, because of the merger of the two companies or corporations into one.® 4. That if the jury believe that the pavement on Ninth street, above Race street, was out of repair in 1886, and the company defendant failed to comply with the notice to repair, the city had a right to make the repairs at the cost of the defendant. Answer: I affirm that proposition; that if the jury believe {hat in 1886 it was necessary to repair the pavement upon Ninth street above Race street, and the company defendant failed to comply with notice to repair, to re-pave, and it was necessary to repair the pavement on Ninth street above Race, and the company defendant failed to comply with the notice, the city had a right to make the repairs at the cost of the defendant.6 5. That if the jury believe that in 1886 it was necessary to re-pave the pavement on Ninth street above Race street, and the company defendant failed to comply with notice to re-pave it with the kind of pavement suited to the traffic on the street, the city had a right to lay such a pavement at the cost of the defendant. Answer: I affirm that proposition.7 6. If the jury believe that granite-block pavement is (the pavement with which all large cities in this country and abroad are paving their main streets, and streets on which the traffic is heavy; that such pavement is), considering the first cost and the item of repairs, as cheap if not cheaper than cobblestone pavement, and is the kind of pavement suited to the neighborhood and traffic of Ninth and Race streets, and with which the city is, as fast as its finances will permit, re-surfacing its main streets, then the city had the right to re-pave and repair Ninth street north from Race street with granite blocks, and the defendant company is liable for the just and proper cost thereof. Answer : I affirm that proposition, striking out all that follows in the first line the word “ is; ” that is, the words “ the pavement with which all large cities in this country and abroad are paving their main streets, and streets on which the traffic is heavy.” I do not think that is a question which the jury have anything to do with, except it may be a fact to be taken into "account by the jury in passing upon the question as to whether the Belgian-block pavement was the proper pavement to be laid down on this part of Ninth street. I make this point read as follows: “ If the jury believe that granite-block pavement is, considering the first cost and the item' of repairs, as cheap if not cheaper than cobblestone pavement, and is the kind of pavement suited to the neighborhood and traffic of Ninth and Race streets, and with which the city is, as fast as its finances will permit, re-surfacing its main streets, then the city had the right to re-pave north on Ninth street with granite blocks, and the defendant company is liable for the just and proper cost thereof.” I affirm that proposition with that portion of it stricken out.8 Upon the defendant’s points I am asked to say to you: 1. No authority to pave Ninth street with Belgian blocks has been shown, and your verdict must be for the defendant. Answer: I decline to affirm that proposition as submitted.10 2. No authority to re-pave Ninth street from curb to curb with Belgian blocks has been shown, and your verdict must be for the defendant. Answer : I decline to affirm that point; because, if the company were obliged to pave at all or re-pave at all, or keep in repair at all, the street, it is the pavement between curb and curb and not simply between tracks.11 3. There is a lack of evidence of any power conferred upon the city of Philadelphia to re-pave Ninth street with Belgian blocks at the expense of the defendant, or at the expense of any other party, and your verdict must be for the defendant. Answer: I decline to affirm that proposition,-because the question of paving or re-paving with any particular kind of pavement is a question that is under the control of the city of Philadelphia as supervisor of the highway. I do not at all agree with the general proposition that counsel for the plaintiff pressed upon me so erroneously, that the whole power or the whole obligation, so far as paving is concerned, is cast upon the defendant. Notwithstanding the fact that the defendant as a railway corporation accepted the grant of the privilege which was the condition of their filing the agreement with the city of Philadelphia, that they would pave, re-pave, and repair the streets of the city,—notwithstanding that, there is still a general oversight and general care and general obligation resting upon the city of Philadelphia as supervisor of the highway. Those highways are still under their general supervision and control; and, that remaining and resting upon them, a power to determine what kind of a pavement shall be laid down upon particular portions of the streets of the city remains with the corporate authorities of the city of Philadelphia ; and I decline, therefore, to affirm that proposition. If they decided that Belgian block was the proper pavement to be put down, they had the right so to decide.13 4. If you find that the bill of paving sued for is for tearing up a cobblestone pavement existing on Ninth street at the time the railway was laid down, and for re-paving said street from curb to curb with Belgian blocks, your verdict must be for the defendant. Answer: I decline to affirm that proposition, for the reason which I have just given; that this power is a general power of supervision and control over the highways of the city which still remains in the corporate authorities of Philadelphia, and that it was for them to direct what character of pavement should be laid down, at the time the Belgian block on Ninth street, which is the subject of controversy and dispute here, was laid down.14 5. There is no authority in the city of Philadelphia to compel the defendant to pay the cost of paving the whole cartway of Ninth street, at the place in question, with Belgian blocks. Answer: I decline to affirm that, because if they had the right to decide what kind of pavement should be put down, as I have said to you they had that right, then they have the right, under my view of the law, to direct that it should be paved with that kind of pavement, or such other kind of pavement as they may have thought to .be best and most suitable for this particular locality, from curb to curb. As I said a moment ago, if there is an obligation on the part of the railway company to pave or re-pave and put the streets in repair under direction of city councils, that means the whole cartway of the street, and not the mere portion of it which is within the track of a railway laid upon the street itself; that that is not the cartway of the street, and that is not the part of the street which is to be paved; that is only a portion of that part of the street called a highway, which is required to be paved for the passage of general travel over the cartway of the city.15 6. The city councils had no authority to make their approval to the laying of defendant’s railway conditioned upon'their entering into a written obligation to observe and be subject to all ordinances of the city in relation to the passenger railway, then in force or thereafter to be passed. The agreement thus compelled to be signed by the defendant did not bind them, so far as it exceeded the authority of the city to impose conditions. Answer: I decline to affirm that proposition, because I think the city had the right to impose that condition upon this corporation before the corporation could enter upon the streets and lay its track upon them. The act of assembly made the consent of the city to the exercise of that power by the defendant, a prerequisite to the right to use the streets of the city for the purposes of constructing upon them, the defined streets in the act, a city-passenger railway; and if the city had the right to refuse or to consent, it had the right to say upon what terms it would consent, and upon what terms it would refuse. Perhaps, if the question were raised by the city with a view of preventing the exercise of this power under the act, that it had imposed impossible conditions on the railway company, that might be held to be an exercise of authority not warranted by the law; but the condition which is here imposed, and which is the one to which this point is directed, I hold was not an impossible condition nor an unreasonable condition, and therefore I decline to affirm this proposition.16 17 7. If you find that the existing cobblestone pavement on Ninth street was capable of being repaired with the same stones, in the proper manner, and that to repair the same it was not necessary to re-pave with Belgian blocks, your verdict must be for defendant. Answer : I decline to affirm this proposition, because, if the city councils are, as I understand they are, vested with the" power of determining what kind of pavement should be laid down, either as an original pavement or as a pavement to be substituted for the one which is to be re-paved,—which is to be taken up and put down, that power was properly exercised by the city of Philadelphia when they directed that this portion of the highway of the city should be re-paved with Belgian block, the discretion being given to them. Now, in the exercise of this power, they must exercise it within reason; they must exercise it with a proper consideration of the rights of the company, as well as with a proper consideration of what they owe to the public, to endeavor to secure proper highways in the city of Philadelphia, and, as I am asked to state to you this point, the city had no right to direct. The general proposition as thus submitted, I decline to affirm.18 8. Your verdict must be for the defendant. Answer: Declined.19 So that you will find the question of fact which you have to consider is presented under the fourth, fifth, and sixth points of the plaintiff, which I will read to you again, and which I have affirmed : “ 4. That if the jury believe that the pavement on Ninth street above Race street was out of repair in 1886, and the company defendant failed to comply with notice to repair, the city had a right to make the repairs at the cost of the defendant.” Now, the jury will have to pass upon the question as to whether the pavement on Ninth street was out of repair, and out of repair in such a way that it was a proper thing for the city of Philadelphia to direct the company defendant to repair it, and if they failed to repair it, then the question is presented as to whether the city had the right to make the repairs at the cost of the defendant. If you find that the pavement on Ninth street above Race street was out of repair in 1886, and that the defendant company did not comply with the notice served upon them by the city, and that they failed to make the repairs under that notice, then the city had the right to make the repairs at the cost of the defendant. I affirm the proposition, leaving the question to you as to whether Ninth street above Race street was out of repair, and in such condition as to justify the city in calling upon the defendant to put it in proper repair and condition, that if you find they failed to put it in proper repair after that notice was given, the city had the right to make the repairs at the cost of the defendant. Now, the plaintiff’s fifth point, to which I want more particularly to call your attention as we go along, is : “ 5. That if the jury believe that in 1886 it was necessary to re-pave the pavement on Ninth street above Race street, and the company defendant failed to comply with notice to re-pave it with the kind of pavement suited to the traffic on the street, the city had a right to lay such a pavement at the cost of the defendant.” —I see you do not specify the kind of pavement? Mr. Beitler: You will find it by looking at my copy. By the court: There is no such modification here at all. This ought to be so modified: “ That if the jury believe that in 1886 it was necessary to re-pave the pavement on Ninth street above Race, and that the company defendant failed to comply with notice to re-pave it with the kind of pavement suitable to the traffic on the street, the city had a right to lay such a pavement at the cost of the defendant.” I affirm that proposition. That leaves to you the question that if the jury believe that in 1886 it was necessary to re-pave the pavement on Ninth street above Race street, and that the company defendant failed to comply with the notice to re-pave, the city had the right to lay such pavement. “ 6. If the jury believe that granite-block pavement is, considering the first cost and the item of repairs, as cheap if not cheaper than cobblestone pavement, and is the kind of pavement suited to the neighborhood and traffic of Ninth and Race streets, and with which the city is, as fast as its finances will permit, re-surfacing its main streets, then the city had the right to re-pave and repair Ninth street north from Race street with granite blocks, and the defendant company is liable for the just and proper cost thereof.” [Now, that submits to you, gentlemen, the question as to whether, considering the first cost of the Belgian-block pavement, that it is as cheap if not cheaper than cobblestone pavement. If you believe that fact, in the first place; and that is put in this way for the purpose of presenting to the jury the question as to whether this requirement on the part of the city was a reasonable or unreasonable requirement. The city has not the arbitrary authority to do just exactly what it may please in regard to the orders which it may give to these companies to repair or to ro-pave. Their orders must be reasonable and must be just, and such as, under the circumstances of the case, they ought to have given for the doing of that particular kind of work. Therefore, it is presented as a question in this point that if you believe it was as cheap as cobblestone, or cheaper than a cobblestone pavement, the inference which you will be asked to draw from it is that that was no unreasonable obligation imposed upon the company, that is, if they could lay down the Belgian-block pavement, taking the whole question in regard to the laying down and keeping it in repair, that it was as cheap or cheaper than cobblestone, that then it was no hardship to require them to lay down the Belgian-block pavement instead of the cobblestone. That question of fact is submitted to the jury, and if you find also that it is the kind of pavement suited to the neighborhood and traffic of Ninth and Race streets, and with which the city is, as fast as its finances will permit, re-surfacing its main streets—I think that had better be stricken out, because it is asserting a fact, and I will strike out that clause, because it is assuming something as to which you have offered no evidence, but you assume it that it is really doing that very thing—“ then the city had the right to re-pave and repair Ninth street, north from Race street, with granite blocks, and the defendant company is liable for the just and proper cost thereof.” With this modification I affirm that proposition.] 9 —The jury returned a verdict in favor of the plaintiff for $1,026.50. Judgment having been entered, the defendant took this appeal, assigning for error: 1. The refusal of defendant’s petition for change of venue.1 2. The overruling of defendant’s objection to the jurisdiction.2 8, 4. The admission of the plaintiff’s offers.3 4 5-9. The answers to the plaintiff’s points.5 to 9 10, 11. The answers to the defendant’s points.10 11 13-19. The answers to the defendant’s points.13 to 19
143 Pa. 473West Phila. N. Bank v. Field (1891)
No. 199 January Term 1891, Sup. Ct.; court below, No. 94 June Term 1887, C. P. No. 4. On June 3, 1887, the West Philadelphia National Bank brought assumpsit against John Field, filing a statement of claim to recover $5,000, the amount of a certain negotiable note drawn by the defendant to the order of John and James Hunter, dated June 25, 1886, payable four months after date, and indorsed to the plaintiff bank. The defendant pleaded non-assumpsit. At the trial on October 10, 1890, the plaintiff bank, to lay ground for evidence of the contents of the note, not produced, proved by their cashier that he had delivered it to James Hunter, about the time of its maturity, and that within his knowledge the latter had not been in Philadelphia after some time in March, 1887. The defendant, who was the brother-in-law of James Hunter, was called for cross-examination by the plaintiff, and testified that he had not seen James Hunter since March, 1887; that about the time of Hunter’s disappearance there was a common report that there were charges of forgeries to a large amount against him; that the witness was the assignee of the estates of John and James Hunter, and that it had never occurred to him to hunt James Hunter up, as he had taken it for granted he was not in Philadelphia. As to the note sued upon, the plaintiff bank, under objection, proved by its cashier that it had originally been discounted by the plaintiff for the indorsers, John and James Hunter, and the proceeds paid to James Hunter;. that when it matured, James Hunter obtained it from the plaintiff by giving in exchange for it a note for $5,200 made to the order of John and James Blunter by James Long, dated October 28, 1886, and that, subsequently, the last mentioned note was renewed by a note for the same amount by the same maker, at four months, to the same payees, dated March 2, 1887. James Long testified that the said two notes were forgeries. The cashier and president of the plaintiff bank then gave testimony, sufficiently appearing in the opinion of the Supreme Court, tending to show that while the note in suit was yet in the plaintiff’s possession, and after it was surrendered to James Hunter, the defendant had admitted the genuineness of his signature as the maker thereof. At the close of the plaintiff’s testimony, on motion of the defendant’s counsel, the court, Willson, J., entered a judgment of nonsuit, with leave, etc. The grounds for making said order were not shown in the paper-books. A rule to show cause why the judgment of nonsuit should not be vacated having been subsequently argued before the court in banc, the rule was discharged, without opinion filed. Thereupon the plaintiff took this appeal, assigning the orders entering the judgment of nonsuit and discharging the rule to show cause, etc., for error.
143 Pa. 479Martinez v. Earnshaw (1891)
No. 203 January Term 1891, Sup. Ct.; court below, No. 416 June Term 1890, C. P. No. 3. To the number and term of the court below, Ramon Martinez and others, trading as R. Martines e hijos y Conesa, brought assumpsit against Alfred Earnshaw, filing a statement of claim, verified by affidavit, as follows: “ The plaintiffs seek to recover of the defendant the sum of $3,750, with interest thereon from the first day of January, 1888, for damages suffered by the plaintiffs for breach, on the part of the defendant, of a certain contract entered into by and between the said plaintiffs and defendant, by his agents Allan, Wrenn & Co., which contract is in the following words and figures: “ ‘ Contract made this 28th of March, 1887, between Messrs. JtC. Martinez e hijos y Conesa, of Cartagena, and Messrs. Allan, Wrenn & Co., of London, acting on behalf and for account of Alfred Earnshaw, Esquire, of Philadelphia, U. S. A. “ ‘ 1. That R. Martinez e hijos y Conesa sell, and Alfred Earnshaw purchases, all the dry iron ore of usual quality which sellers can collect from the mine San Anisetto during the rest of this year, up to ten thousand tons or thereabouts, at the price of six shillings per ton of twenty-two hundred and forty pounds. f. o. b. Cartagena, guaranteed to contain a yield of fifty per cent of iron in the natural state, with a sliding scale at the rate of three pence per unit additional for every unit over fifty per cent, and with a deduction at the rate of four pence per unit for every unit under fifty per cent. Final settlements to be made on output weights and assays found at port of discharge. “‘2. R. Martinez e hijos y Conesa will advise Messrs. Allan, Wrenn & Co., from time to time, about the quantity of mineral they have ready for shipment under this contract, and Messrs. Wrenn &. Co. will do the chartering of tonnage required according to these advices. , “ ‘ 3. R. Martinez e hijos y Conesa undertake to put the mineral on board steamers at the rate of two hundred and fifty tons per day, weather permitting, Sundays and holidays excepted, being paid for so doing five pence per ton. Any dispatch-money earned in loading steamers at Cartagena to be equally divided between buyers and sellers. Sellers are to pay demurrage incurred at port of loading in the event of not so doing. “ ‘ 4. Alfred Earnshaw has the right of sending sailing vessels to load under this contract, he paying R. Martinez e hijos y Conesa five pence per ton additional price; all other conditions as stated herein, except that the loading will be at the rate of eighty tons per day. ‘“5. On arrival at port of discharge of the cargoes shipped under this contract, same shall be sampled and assayed by a chemist of repute, cost being paid jointly by buyers and sellers, and whose decision shall be final and binding on both parties. “‘6. Payment by seller’s draft on an approved London banker at sixty days for steamer cargoes, and ninety days for sailing-ship cargoes, for eighty per cent of the amount of provisional invoice, based on fifty per cent of iron, against bill of lading and consular invoice (if required), and the balance to be sent within fifteen days after output, weight, and assays are ascertained in cash. In the event of loss of any cargo, the full amount of provisional invoice shall be paid by buyers. “‘7. In the event of war, civil commotion, cholera, quarantines, or any other case of force majeure, which may hinder the loading or chartering of tonnage in execution of this contract, same shall be suspended during the existence of the producing cause.’ [Signed in duplicate.] “ And the said plaintiffs aver that they did mine the said ten thousand tons of said ore capable of yielding about fifty per cent of iron in the natural state, from the said mine, in accordance with the agreement, and notified the said Allan, Wrenn & Co., as well as the said defendant, from time to time, of the quantity of the said ore which they, the said plaintiffs, had ready for shipment, and did perform all and everything that they, the plaintiffs, ought to have performed according to the terms of the said agreement, and that nothing has occurred or has been done which has had the effect to release the said defendant from the terms of the said contract; but that the said.defendant, disregarding his promises in his said agreement contained, neglected and refused to charter the tonnage required by the said agreement and advices, and has refused to provide means for the shipment of said ore, or any part thereof, and still doth neglect and refuse so to do; and hath hitherto neglected and refused and still doth neglect and refuse to pay for the same, or any part thereof, or to fulfil any part of the said agreement on his part to be fulfilled; and, by reason of the premises, the said plaintiffs have suffered the said loss of $3,750; as, at the expiration of the said contract, namely, the thirty-first day of December, 1887, and for some considerable time thereafter, the highest and best price that could be obtained for the said ore was four shillings and six pence per ton, the market price of the said ore having declined to that sum. “ The loss* thus entailed upon the said plaintiffs of about $3,750, was the difference between the contract price of the said ore, in accordance with the said agreement, and the market price of the, said ore at the time of the expiration of the said agreement. “ The plaintiff therefore brings this suit.” The defendant filed an affidavit of defence averring: “Before the making of the contract, a copy of which is set forth in the plaintiffs’ statement, the defendant, when negotiating with the plaintiffs for dealing in the ore which is the subject of the contract, examined the mines, and received from the defendants certain representations as to the qualities of the ore which led him to request samples should be sent, with a view of purchasing. A sample was forwarded and analyzed, showing the ore contained 59.586 of metallic iron and .025 of phosphorus, after drying the ore at two hundred and twelve degrees. A second sample was sent him by the plaintiffs, accompanied with a letter of August 31, 1886, a copy of which is annexed. This sample showed 53.598 of metallic iron and .026 of phosphorus, after drying the ore at one hundred and twelve degrees. “ Having received this letter and the samples, and having procured the analysis thereof, the defendant authorized shipments to be made, and two were made, one by the steamship Lorain and one by the bark Simpatía. Before the arrival of these vessels, relying on the samples and letter, the defendant authorized a contract to be made for future shipments, and the contract set out in the statement was made. After this, the vessels arrived and their cargoes were delivered and sent to the furnaces. These ores were then tested and ascertained not to accord with the samples or the guaranty in the contract, the analysis showing that the cargo of the Lorain contained 48.747 of metallic iron in the natural state and .038 of phosphorus, and the cargo of the Simpatía contained 49.40 of metallic iron in the natural state and .030 of phosphorus. “ The defendant did not discover these facts until after the iron had been delivered at the furnaces and it had become impracticable to reject and return the ores, nor could he, in the usual course of business of this kind, have discovered the fact sooner. Immediately on ascertaining the fact that the ores shipped did not correspond to the quality guaranteed, the defendant repudiated the contract that had been made and refused to receive any more dre under it. “ As respects the averment that the plaintiffs have fulfilled their part of the contract, and were ready and willing to perform the same by loading ore of the kind stipulated for by the contract, the defendant believes this is not true, and expects to be able on the trial to prove that the ore that was sold by the plaintiffs, and for the loss on which he claims to recover, was not of the quality that the defendant was bound to accept if the contract had continued to be in force.” .... After argument of a rule, judgment was entered for the plaintiffs for want of a sufficient affidavit of defence, the court below filing no opinion. Thereupon, the defendant took this appeal, assigning the order entering judgment for error.
143 Pa. 487Orne v. Fridenberg (1891)
No. 219 January Term 1891, Sup. Ct.; court below, No. 695 March Term 1881, C. P. No. 1. On June 3, 1881, John F. Orne filed a bill in equity against Solomon R. Eridenberg, Samuel M. Eridenberg and Isaac S. Isaacs, executors and devisees in trust under the will of Louis E. Fridenberg, to restrain the maintenance of certain alleged violations of building restrictions, contained in a conveyance to Thomas C. Rockhill of tbe premises occupied by the defendants. The bill averred, in substance, that Edward Shippen Burd, being seised in fee of a certain described lot with the buildings thereon, now 908 Chestnut street, bounded on the east by another lot of the said Burd, now 906 Chestnut street, on which latter stood a large house with wings, the residence of said Burd, and a stable and coach-house in the rear on George (now Sansom) street, by deed dated July 9, 1825, duly recorded, conveyed the said lot and buildings, 908 Chestnut street, to Thomas C. Rockhill in fee, upon the express condition that all the buildings, then on said lot, should, within one year from said date, be prostrated, and that said Rockhill, his heirs or assigns, should “ not at any time thereafter erect or build, or permit or suffer to be erected or built on said lot, any buildings other than privies, milk or bathing houses, walls, or fences, not exceeding nine feet in height from the surface of the curbstone immediately in front of the said lot,” excepting a messuage on the Chestnut-street front “ not exceeding sixty feet in depth,” with a piazza to the south for a staircase “ not exceeding twenty-five feét in depth,” and a stable and coach-house on the George (now Sansom) -street front, which was not to be higher nor extend farther north than the stable and coach-house of said grantor Burd then standing on his said mansion-house lot on the east; also that the north wall of any building to be erected on the Chestnut-street front should be built precisely on a line east and west with the north wall of the west wing of said Edward Shippen Burd house, which was ten feet one inch and five eighths of an inch from the south line of Chestnut street, and that “ the ground between the said north wall of the said building, so to be erected on Chestnut street, and the south line of the said Chestnut street, shall be forever left open for a public pavement and footway, free from every obstruction or encumbrance whatever, except steps, cellar-doors, and scrapers.” That said Burd died in 1848 leaving a will and codicils, by force of which and of subsequent conveyances, the premises on the east, 906 Chestnut street, became vested in 1875 in John F. Orne, the plaintiff, in fee-simple; and that the premises, 908 Chestnut street, by divers mesne conveyances and devises had become vested in said Solomon R. Fridenberg and the other defendants, as trustees under the will of Louis E. Fridenberg. It was averred, further, that the stable and coach-house of the said Burd, at the time of the said conveyance to Roekhill, was of certain dimensions and height stated; and that the defendants had violated and were violating said restrictions and the easement created thereby, by permitting and maintaining the following erections, structures, and buildings upon said lot, 908 Chestnut street, to wit: (a) A brick building, on George, now Sansom street, and a frame building annexed thereto, north (south ?) of the house, fronting on Chestnut street, which buildings were neither a stable, coach-house, privy, milk, nor bath house, wall or fence, but a tavern and drinking and concert saloon, and were more than nine feet high above the Chestnut street curb, the frame building extending in depth farther north than the said stable and coach-house on the Burd homestead lot adjoining on the east. (b) A frame building adjoining the piazza of the said house on Chestnut street, on the south thereof, and exceeding nine feet in height above the curbstone in front of the property. (c) A structure, obstruction, and encumbrance upon the ground between the north wall of said building, 908 Chestnut street, and the south line of said street, being neither steps, cellar-doors, nor scrapers, but an extension of the first-story front part of said building. That the erections complained of were in violation of the ordinance of Philadelphia of April 11, 1868, prohibiting wooden and brick-paned [?] buildings, were dangerous on account of fire to the plaintiff’s buildings on his adjoining lot, filled with valuable merchandise, materially injured the value of plaintiff’s property, and interfered with the free access of light and air, and approach thereto. Upon said averment, the bill prayed: (1) That defendants answer; (2) That they be restrained from keeping and maintaining said erections and buildings, in violation of the said restrictions; (3) That defendants be ordered to remove said tortious erections ; and (4) For further relief. The defendants’ answer denied the material averments of the plaintiff’s bill and inter alia, averred: “ The physical condition of said lot No. 908 Chestnut street, as to erections, structures, and buildings, is now and was when said bill was filed, and has been since the said defendants’ testator first viewed and bought the same on November 1, 1875, unchanged and identically' the same; and, to the best of these defendants’ several knowledge, information and belief, such present condition had then existed for more than twenty-one years previously; with these exceptions only, that the building occupied by Mr. Monaghan [a tenant] has, since the date of said deed, been enclosed, and some betterments have been done to the front building, not however increasing its size.” Issue having been joined, Mr. James S. Niekerson was appointed examiner; and on October 10, 1888, the examiner having filed his report, the cause was referred to Mr. John M. Collins, as master. On August 23, 1890, the master filed his report, wherein he found, in substance, that on July 9, 1825, Edward Shippen Burd had conveyed to Thomas C. Rockhill lot now 908 Chestnut street, with the conditions and restrictions contained in the deed as averred in the plaintiff’s bill; that, thereupon Rock-hill occupied the premises, and while he was the owner thereof complied with said conditions and restrictions; that subsequent owners of the premises, many years at least before the bill was filed, erected buildings upon the lot substantially of the character and position and occupied and used substantially as averred in the plaintiff’s bill, and were in violation of the conditions and restrictions contained in the deed from Burd to Rockhill.1 to 7 Upon his findings of fact, the master reported his conclusions of law in part as follows: 1. The question arising in this case is important, touching the right to and value of the easement which the plaintiff claims has been violated by the defendants. This easement is in itself a very valuable property, in a pecuniary point of view, worth doubtless many thousands of dollars to the plaintiff owner, and the property No. 908 Chestnut street would sell for an amount proportionately less on account of being subject to said restrictions the right to which in the plaintiff constitutes the easement. And, although there is no evidence as to the value of the said property, No. 908, yet it may be assumed that, when said Louis E. Eridenberg bought said property in the year 1875 for §27,500, subject to mortgages for §45,000, he gave much less than said property would have sold for if it had been free of said restrictions. The said restrictions, if enforced, are of great value in another sense to the dominant lot, the restricted space affording light and air to workmen, through a large number of windows in the west wall of said Orne’s storehouse. The use of said space is not merely a convenience, but it is necessary to the enjoyment of the plaintiff’s premises. The right, however, to the easement in this case which has been violated, depends in nowise on its utility, or even necessity, but upon a contract, having originated in a grant (as above recited) from E. S. Burd, who necessarily paid for the easement by an allowance or deduction from the consideration for which he conveyed said property, No. 908 Chestnut street, to said Thomas C. Rockhill, his heirs and assigns. 2. It is stated above that if said restrictions created by said Burd in his grant to Rockhill, his heirs and assigns, etc., are valid and subsisting restrictions, then that said long frame building and said bulk-window and the Clinton frame building are manifest violations thereof; and that the permitted use of said brick building on Sansom street for any other purpose than that of a stable and coach-house, without the owner plaintiff’s consent, is also a violation thereof. The master now submits that the said restrictions are valid and subsisting restrictions, entitling the owner of the property, No. 906 Chestnut street, to the interference of a court of equity by injunction to restrain the continuance of such violations. As to the right of the owner plaintiff to the benefit and advantage of said restrictions, and of the liability of said defendants, trustees, and their land to bear the burden of the restrictions, there can be no dispute..... [Said restrictions are in apt words to create a conditional estate in fee in Thomas C. Rockhill, his heirs and assigns.] 8 By the terms of the grant they were made expressly operative upon the assigns of said Rockhill. They, therefore, ran with the land, because the liability to conform to said restrictions passed to the assignees of the land, No. 908; and so the easement, or right to take advantage of said restrictions, reserved by said grantor Burd, ran with his other land adjoining on the east, for the benefit of which the easement was created, because it passed to the successive assignees of said other land. And, even if it had not run with the land, in a strict sense, it would be enforced against all purchasers who took with notice of it. This common-sense view was taken by Lord Cottenham in Tulk v. Moxhay, 2 Phill. Ch. R. 774, and it has been followed in Luker v. Dennis, 7 Ch. Div. 227; 47 L. J. Ch. 174. Now, these defendants, Pridenbergs and Isaacs, as well as their testator, had full notice of all the restrictions created by Mr. Burd. It would be idle to say otherwise. They are on the face of every deed in the title, including that to Louis E. Fridenberg. Grantees of land subject to restrictions are affected with knowledge of all information necessary to observe the restrictions: Whitton v. Whitton, 38 N. H. 127 (75 Am. Dec. 163); Rowell v. Jewett, 69 Me. 293. —Citing and considering Clark v. Martin, 49 Pa. 289; Whitney v. Railway Co., 11 Gray 359; Peck v. Conway, 119 Mass. 546; Bear v. Whisler, 7 W. 148; Linzee v. Mixer, 101 Mass. 512; Tobey v. Moore, 130 Mass. 448; Bank v. Marshall, L. R. 40 Ch. Div. 112, the master held that the acceptance by the grantee of a title expressed to be subject to such restrictions, though the deed was signed only by the grantor, amounted to a covenant which ran with the land;10 and, citing further upon the same point, Trull v. Eastman, 3 Met. 121; Hartung v. Witte, 59 Wis. 285; Burbank v. Pillsbury, 48 N. H. 475 (97 Am. Dec. 633); Kellogg v. Robinson, 6 Vt. 276 (27 Am. Dec. 550); Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 (13 Am. Rep. 556); Bowen v. Beck, 94 N. Y. 86 (46 Am. Rep. 124); Wilcox v. Campbell, 35 Hun 254; Kentucky Cent. Ry. Co. v. Kenney, 82 Ky. 154, he proceeded: No matter whether the stipulation or restriction in the deed amounts to a covenant or not, or is a strict condition, an injunction is proper, and by that high remedial writ a court of equity will enforce the agreement, express or implied, against a party purchasing with notice of it. As Lord Cottenham said in Tulk v. Moxhay, 2 Phill. Ch. R. 777-8, “ If an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.” Said restrictions, then, operating as a covenant, the case of St. Andrew’s Church’s App., 67 Pa. 512, is in point, as bearing upon the violation of said restrictions by said defendants, trustees, in permitting Monaghan to use the brick building on Sansom street as a saloon and dance-house under a lease the sudden termination of which by an injunction the said defendants deprecated in their answer. In that case, there was a mutual covenant between grantors and grantees that the lots should be subject to the restriction that none of them should “be used for purposes other than a dwelling-house, office, privy, coach-house or stable,” etc.; and the defendants were about to erect a church, and it was contended, inter alia, that the contemplated edifice was not against the spirit of the covenant. But the court, Shabswood, J., held that the purpose of the restriction was not material, nor whether the inconvenience was greater or less to the grantor or his assignees; that if a church should be allowed, the covenant would be at an end; “ there would be nowhere any power to restrain its application to any purpose not a nuisance in itself. To protect himself, therefore, from such a consequence, it was the clear right of the plaintiff to stand upon the covenant, even though the erection of a church might not prove of any actual inconvenience or annoyance to him so long as it was only used as a church.” In the present instance, the permitted use of said Sausomstreet house as a drinking-saloon and dance-house was a gross violation of said restrictions; but, to whatever innocent uses said defendants may offer to apply said building, the principle of the above case makes it clear that the owner plaintiff in this cause has the right to stand upon the covenant which has run with and binds the land of the defendants, that said building shall not, without the consent of said plaintiff, be used for any other purpose but that of a stable and coach-house; and he has the right to ask the court for an injunction to restrain said defendants from using it, or permitting it to be used, for any other purpose without his consent. It is not to be supposed that such consent will be unreasonably withheld, but it is necessary to any other use; otherwise, as Judge Shabswood said, “ the covenant ” (or easement) “ would be at an end.” —Considering upon other question's arising: Brady v. Weeks, 3 Barb. 157; Bemis v. Clark, 11 Pick. 452; Staple v. Spring, 10 Mass. 72; Erb v. Brown, 69 Pa. 216; St. Mary’s Church v. Miles, 1 Wh. 229; Banner v. Angier, 2 Allen 128; Farrar v. Cooper, 34 Me. 394; Heath v. Bucknell, L. R. 8 Eq. 1; Hall v. Swift, 4 Bing., N. S., 381; Duke of Bedford v. British Museum, 2 M. & K. 552, the master concluded: 6. It being quite clear the owner plaintiff in this case is entitled to the benefit of said restrictions, and that [the defendants, said Fridenbergs and Isaacs, violated, and are now continuing to violate the said restrictions,] 13 [an injunction ought to be issued against said defendants to prevent them from continuing the wrong.] 14 A mandatory injunction is clearly within the power conferred by § 13, act of June 16, 1836, P. L. 789, which provides: “The.....Court of Common Pleas shall.....have the power and jurisdiction of courts of chancery, so far as relates to— “ Y. The prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community or the rights of individuals.” [The damage to plaintiff from the violation of said restrictions, and the continuance thereof, is not adequately remediable at law,] 15 and the inadequacy of any remedy at law is a sufficient equity to warrant an injunction in this cause; and, the injury being constantly recurring and continuing, an injunction is the only remedy to avoid a multiplicity of suits and suppress litigation. The distinction is obvious between the enforcement of “ an equity attached to the property,” such as an easement, the breach of which cannot he adequately compensated in damages, and the enforcement of covenants to pay rent and the like, the non-performance of which is capable of being fully compensated in damages: See Tulk v. Moxhay, 2 Phill. Ch. R. 774. In Webb v. Portland, 3 Sim. [Sumn.] 189, it was said by Stout, J., of a diversion of water: “ If the diversion is a violation of the right of the plaintiffs, and may permanently injure that right, and become by lapse of time the foundation of an adverse right in the defendant, I know of no more fit case for the interposition of a court of equity by way of injunction.” An injury is irreparable, so as to authorize an injunction, where its continuance must occasion a constantly recurring grievance, as where an easement or servitude is annexed by grant, covenant, or otherwise, to a private estate. Equity will interfere by injunction in furtherance of justice and the violated rights of the party, or to protect the due and quiet enjoyment of the easement against encroachments: Webber v. Gage, 39 N. H. 182. The amount of actual injury, where a right is involved, or where adverse use might ripen to a right, is held not to be material: Corning v. Troy, 34 Barb. 485. The jurisdiction of equity by way of mandatory injunction is too firmly established to admit of a doubt: High on Inj., 3. Injunctions of this class have been granted, e. g., against continuing the removal of the stop-gate of a canal, as in Robinson v. Lord Byron, 1 Bro. C. C. 589 [?]; against permitting stables to remain which had been wrongfully built in an ornamental garden, etc.: Lane v. Newdigate, 10 Ves. 194; Rankin v. Huskisson, 4 Sim. 13, and other cases. In the latter case it was considered proper to restrain defendants from permitting such part of the buildings as they had already erected wrongfully to remain. The projection of the cornice and window-sills over defendants’ lot do not affect the plaintiff owner’s title to the relief .by injunction under the circumstances, he having offered to remove said projections, which must be done before final decree: Daniell’s Ch. Pr., 989, 990; Schaidt v. Bland, 66 Md. 141. —To the report of the master, the defendants filed exceptions, alleging, inter alia, that the master erred: 1-7. In his findings of fact.1 to 7 8, 10, 13-15. In his several conclusions of law embraced in [ ] 8 10 13 to 15 On December 15, 1890, said exceptions having been argued before the court in banc, an order was made, without opinion filed, dismissing the exceptions, confirming the master’s report, and entering a decree in part as follows : “ That the said defendants, .... and each of them, be enjoined from keeping and maintaining, or permitting to remain, the said bulk window, with its surroundings as above and in the said report particularly described, and from keeping and maintaining, or permitting to remain, the said two frame-buildings between the Chestnut-street front building and the back building on Sansom street, as above and in said report particularly described; and, further, from using, or permitting to be used, the said brick building on Sansom street for the purposes of a saloon or dance-house, or any similar use, by whatever name called or known, and from all use or application of said building for any purpose whatever except that of a stable and coach-house only, without the consent of the said owner plaintiff, [now] Henry C. Gibson, his heirs or assigns ; and, further, from erecting or building, or permitting or suffering to be erected or built on the said lot of ground any buildings whatever other than those allowed by said restrictions and provided for in the said indenture from said Edward S. Burd to Thomas C. Rock-hill of the ninth of July, 1825. And it is further ordered, adjudged and decreed that a writ of injunction do issue forthwith against the said defendants, commanding them to comply with all and singular the premises so enjoined upon them; and further, that the defendants do pay the costs of the cause. “ This decree, however, not to be enforced until the plaintiff remove the projection of the cornice and window sills of his building over the defendants’ premises, if required by them.” Thereupon, the defendants took this appeal, specifying that the court erred, inter alia : 1-7. In dismissing defendants’ exceptions.1 to 7 8, 10, 13-15. In dismissing the defendants’ several exceptions.8 10 13 to 15 16. In entering the foregoing final decree.
143 Pa. 503Hoffman v. Bloomsburg etc. R. (1891)
No. 44 July Term 1890, Sup. Ct.; court below, No. 34 September Term 1887, C. P. On September 21, 1887, an appeal was filed from the report of viewers assessing damages in favor of John W. Hoffman against the Bloomsburg & Sullivan Railroad Company, for land taken and injured by the location and construction of the defendant company’s railroad. Issue. At the trial, on October 1, 1889, the plaintiff introduced testimony showing, as was claimed, that he owned a farm of about one hundred and thirty-four acres along Big Fishing-creek, upon which were erected two dwelling-houses, a barn and farm buildings, a grist-mill and a saw-mill, the mills being driven by water-power; that in 1886-87 the defendant company entered upon his land and located and constructed its railroad through it for a distance of 4889 feet; that the railroad was constructed across both the head-race and the tail-race of the mills, and in the dam or pool on the eastern side for a distance of about 1200 feet; that the tail-race was changed, with the effect of preventing the water from flowing away from the turbine water-wheels freely; that the head-race was changed also, so as to prevent the water from feeding the wheels fully and properly, and that the channel of the dam or pool was so filled, by blasting and working down the hill-side to form the roadbed, as to change the current of the pool and diminish the power of its water supply; that, moreover, by means of a dam or structure of planks and scantling, driven down at the throat of the head-race for the purpose of permitting a change of the latter by the company, its remains being afterwards imperfectly removed, the washings from the railroad embankment collected and filled up the pool to the depth of four feet, at the throat of the race, and sloping thence about four hundred feet, further injuring the power of the water supply. With testimony as to the foregoing facts, plaintiff showed the proximity of the railroad to the buildings upon the land, and a depreciation in the market value of the mill properties ranging, in the opinions of the witnesses, from $3,500 to $6,000. The defendant company, in its case in chief, showed that on September 4, 1886, the board of directors of the company accepted and ratified certain agreements theretofore made with landowners along the line of the road, one of which was as follows : “ I hereby agree in behalf of the railroad to be constructed along the valley of the Big Fishingcreek, from a point near its mouth and following its general course to Cole’s creek, thence, by the most eligible route, along the gorge of its eastern branch into Sullivan county, to connect with the State Line & Sullivan Railroad to be extended to the state line at or near Waverly, that I will release to the company which undertakes to construct such road, the right of way of lawful width through my land in Orange township, Columbia county, Pennsylvania; the damages to be assessed when the road is located, and the amount of said damages to be paid in stock in said railroad. Cost of fencing not included in damages, provided no damage is done my buildings, race or water-power. “ Witness, John W. Hoffman.” “ H. J. Conner.” It was shown, also, by the defendant, that this agreement was signed by the plaintiff in 1882 or 1888, when the building of the railroad was first set on foot, and that the' plaintiff frequently recognized its existence and validity while the railroad was constructing in 1886 and 1887. The “ agreement or release ” being offered in evidence by the defendant, the plaintiff objected, on the ground' that it was obtained prior to the organization of the defendant company, and, inter alia, “ because the condition of the paper itself shows to the court, as by the evidence already adduced in this case on the part of both parties and uncontradicted by the defendant, the violation of the agreement or paper; and therefore, the agreement so far as the plaintiff is concerned must be considered as rescinded.” Mr. Buckalew: “ The object is to show, first, that the railroad company entered by consent of the defendant (plaintiff ?) upon his premises, to construct their line of road; secondly, that there was an agreement between the parties for the assessment, voluntary assessment, of any damages that might be occasioned to his property, and for the payment in capital stock of the company. We do not question that if the water-power is damaged, the defendant, under that agreement, is liable to a money assessment in this .suit. We do not deny that if the water-power is injured, the damage is to be a money assessment in this suit.” By the court: “ Merely remarking that we think the offer is proper, we overrule the objection, and admit this release or paper without any further comment at this time; and give the plaintiff a bill.” Testimony on the part of the defendant company tended to show that the tail-race, and head-race, and part of the dam, though changed at places, were changed with the knowledge and assent of the plaintiff, and that they were as good if not better than before the company interfered with them; that they were as deep, and were entirely adequate to supply to and carry from the plaintiff’s mills fully as great an amount and power of water as before; and that the lessened supply and power of the water, if any, were caused by the broken and unrepaired condition of the old dam. At the close of the testimony, the court, Ikeler, P. J., charged the jury in part as follows : It seems that in 1882, or 1883, persons were prospecting for the location and building of a railroad upon the branch of Big Fishingcreek; and that some time in 1882 Captain Conner, now a director and the secretary of the company, with Hoffman, the plaintiff here, made an agreement, put in evidence as a “release,” and it will be before you, formal in terms and in writing, signed by John W. Hoffman and witnessed by H. J. Conner, which instrument provides as follows: . . . . The defence here is, that no damage has been done to the buildings, race, or water-power, and the allegation on the part of the defence is that the release has not been violated but is binding upon the parties. I do not understand that any damage is claimed here on account of danger of fire from close proximity of the railroad to the buildings; — is there ? Mr. Barkley: Only such as the law allows us, that is all. Then, in that respect, it is simply a question as to the general condition of the property as it was left, and we call your attention to the undisputed evidence on that point. [The railroad is located seventy-two feet from the shed, seventy-four feet from the barn, one hundred forty-nine feet from the grist-mill, thirty-four feet from the tenant house, forty feet from the saw-mill; and you will judge, as men of experience, knowing how railroads are located, how near to buildings, and how they are managed, whether there is any danger apparent of injury from close proximity of these buildings to the railroad, arising from the careful and ordinary use and operation of the railway; because, if the buildings should be injured or destrojmd, or if any other damage should occur, from the careless or negligent use and operation of the road, the plaintiff would be entitled to recover in a separate action for such injuries.] 1 [It is our duty to instruct you in reference to this agreement or release. If you find that no damage is done or has been done to the buildings, race, or water-power, then, according to this release, whatever damage has been done to the property in general, as for land taken, would be payable in stock of the railroad company, according to this agreement. Our construction of this agreement is, that the cost of fencing was excepted from that kind of payment, and to be ascertained and assessed, if any, detracting from the general value of the whole premises, and is payable in money value. The proviso or provision that no damage is done to my buildings, race, or water-power, that, we hold, relates to the whole agreement, and not to the single item of cost of fencing].2 We have been asked by counsel for the plaintiff to instruct you as follows: 1. That the depreciation in the market value of the plaintiff’s property, as a water-power with grist-mill and saw-mill, may be shown by the evidence of the difference between the working capacity of the power upon the mills, at and about the time of the entry by the defendant to construct the railroad, before any work done, and the working capacity of the power upon the mills after the construction of the railroad and the change made by the defendant by its work upon the property. Answer : That point is affirmed. 2. That the measure of damages to the property of the plaintiff as a water-power and mill property is the difference in the market value before and after the construction of the railroad and works of the defendant; and, in determining this difference, the jury should take into consideration the difference between the working capacity of the power upon the mills before and after; and the jury should also consider any unused or surplus water-power of the plaintiff for good and useful purposes, the water-power and mill property remaining as it was before the road was constructed; and should also consider all matters of inconvenience and increased expense and burden and risk in the use, maintenance and occupancy of the waterpower and mills, occasioned by the works of the defendant, and also the danger of fire and the inconvenience of access and use of the buildings and grounds therewith connected. Answer: We affirm this point also; with the explanation that it is with the careful and ordinary use and management and operation of the road; and we have also instructed you with reference to fire. This point is correct, with that explanation.8 6. That the jury, in estimating the damages to the plaintiff’s property as a farm property, should take into consideration the depreciation in its market value by reason of quantity and quality of land taken and the manner of taking, the inconvenience arising from a division of the property or from increased difficulty of access, the burden of increased fencing, the ordinary danger of accidental fires to the fences, fields or farm buildings, not resulting from negligence; and, generally, all such matters as, owing to the particular location and manner of construction of the railroad, may affect the convenient use and future enjoyment of the property. Answer: This point is correct. These elements are proper for your consideration, with the addition that the special advantages, not general to the whole community, are also a matter to be considered and set off against any damages arising from these several elements.9 7. That under the agreement offered by the defendant, it was the duty of the defendant so to-construct the railroad as not to interfere with the plaintiff’s water-power and race; and in this case the defendant should be held to a strict compliance with the conditions of the license in all respects. Answer: That point is affirmed.10 On the part of the defendant we are asked to instruct you as follows: 1. That if the jury believe that by reason of the new race and new dam provided by defendant, Mr. Hoffman’s waterpower is not damaged, then, under the evidence and the written agreement for right of way, plaintiff can only recover if the total value of his property is diminished to that extent; payment to be in capital stock of railroad company. Answer: That point is affirmed, as we have already instructed you. 2. That defendant company is a common carrier; that its railroad is a public highway; that plaintiff has a right in law to construct on his land adjoining said railroad a suitable switch for the uses of his business, and to connect the same with the tracks of the railroad company, subject to general rules of the company regulating such connections; and that the defendant company is bound to receive and deliver to and from such switch or siding, cars and freight for said plaintiff to and from such points on the liné of defendant’s railroad as may be designated by plaintiff, and on equal terms with other individuals or transportation companies. Answer: That point is correct in the main. The railroad is not strictly a highway, in the sense that a public wagon-roád is a highway; it is a highway for the general and exclusive use of the railroad for the accommodation of the public, and the company must accommodate and answer the calls or requirements of the public and of all individuals alike, and cannot refuse one and accommodate another, nor charge different rates for the same transportation for different individuals. * * * * * * * * In making up your verdict, or in order to arrive at a just conclusion, you may consider separate items of alleged particular injury to the property, not suffered by the community in general; such as the land taken, the manner of taking and cutting the land, increased difficulty of operating the remainder, if there be any; the -cost of fencing and of maintaining fences, if any are necessary, [the danger to buildings, crops and fences by fire, from a careful and ordinary operation of the road, not resulting from negligence in the use of the road; the injury to water-power, if any;] 7 and if, in considering all these, damage and disadvantages are found; if, considering all, you find damage and disadvantage, against such you may and .should set off advantages, if any, that the building and operation of the road may bring or cause to the whole property or to any portion thereof, not common to the community but direct and peculiar to the property or the owner; such as switches and the bringing of material to and taking it from the manufacturing industries of the plaintiff, as to his grist-mill or sawmill..... [Now you have seen an illustration of the power of water, given here in the argument of counsel for the plaintiff. It is a self-evident fact that height of water above the discharge gives weight, force and power to the discharge, as conclusively illustrated by Mr. Scarlet* in this case.] 3 The complaint here is, the main complaint, that the force and power of the water in the head-race of Hoffman’s mill is so diminished and weakened that it will not supply sufficient force or power to run his mills, to wit, his grist-mill and his saw-mill, as it formerly did; that the water in the forebay is lower now than it was before the construction of the railway; and, if it is, it seems to the court that the main inquiry then is whose act or fault was it, is it, that the same height of water is not there now; and whether the tail-race fails to discharge the How of water from the grist-mill, as is alleged here, is a question of fact for you under all the evidence. On the part of the defendant the allegation here is that the funnel or mouth of the head-race will take in more water, draw the dam lower, and carry more water from the main branch to the forebay or the tail-race below, furnishing more height and power above the wheels, than the old race did. The allegation upon the part of the plaintiff is that on account of the changing of the current there is less depth of water there at the head-race. The complaint is that in the changed condition of the head-race it is so shallow that the water spreads upon it in a thin surface, and does not draw a sufficient amount from the pool of the dam or from the creek to supply the depth and force that formerly existed at the forebay. [Now you have been there upon the ground, and you have heard the experts testify, civil engineers and hydraulic engineers, one or two; James C. Brown, a skilled professional hydraulic engineer, as well as Mr. Ostrander and Squire Neyhart; you have heard their testimony, and the testimony is that careful measurements were taken by their instruments of the depth of the race, and the evidence is that the measurements were taken from the same standpoint. It is not an unusual thing for engineers to differ in their measurements and surveys; so much depends upon where they locate their instruments, and it is not unusual to locate them at different points ; but it is rather unusual that they should differ when they locate their instruments at the same point, to wit, at the red bolthead of the iron bolt. You will recall the evidence to your minds, in considering this question, and determine where the truth lies. It is a matter of judgment and experience. (By order of the court and with consent of the parties you went upon the premises and viewed them, so that you might have a more intelligent understanding of the evidence from knowing the lay of the land and the location of the railroad over it; and you may and should use your own observation and judgment, together with all the other evidence in the case, as to the damage sustained, if any, and the advantages accruing, if any, as well.) 4] 12 In cases like the one on trial, witnesses may give, and they have in this case given their opinions as to the value of the property, because it is the value that is in dispute. It is therefore proper and competent for those who are sufficiently acquainted with the property to give an opinion upon the subject ; but it is the duty of the court to say to you that such opinions are subject to the qualification that the opinions of witnesses as to value are not binding upon you but persuasive merely; if you are of a different opinion, you may find according to your own opinion. [The opinions of witnesses are to aid and assist you, if possible, in arriving at a just conclusion; but you are not to lay aside your own observation and judgment, and accept the conclusions of witnesses, if you think them extravagant in being either too high or too low or incorrect in statement.] 5 It is not an unusual thing for witnesses in cases like the present to differ widely in their opinions as to the market value of the property before and after the construction of the road, in order to fix the difference which would be the damage sustained, some putting the difference at nothing and some up into thousands of dollars as- they have done in this case. From your own individual observation and view upon the premises, together with all the evidence and the surroundings of the case, you are to decide this question between the plaintiff and the defendant according to your oath, to the law and to the testimony, doing equal and exact justice between them. To recapitulate: The proper measure of the injury sustained by a landowner, by reason of an entry upon and appropriation of any portion of his land, is the difference between the market or selling value of his land immediately before and immediately after such entry and appropriation. In determining this difference in market or selling value, the advantages and the disadvantages resulting from the construction, operation and ordinary use of the road are to be taken into consideration. The advantages and the disadvantages are to be estimated upon the property and tract as a whole, and not upon each separate field, or piece, or part that has been touched or interfered with by the road. The question is, what was the value of the plaintiff’s whole tract or property, the farm, the gristmill, the saw-mill, and the land, immediately after the railroad had passed through it and immediately before; and the difference, if any, in dollars and cents would be the damages sustained. [That is, if any injury accrued to the water-power, the damage would be in dollars and cents, to be paid in cash: and if there was no injury to the water-power, then, as we have instructed you, the land damages, if there should be any, you should find payable in stock of the railroad company. The fencing and the burden of fencing, whatever it may be, as detracting from the value of the whole tract, the burden of maintaining fences, if any fences are necessary, that you would find payable in cash.] 11 [It is entirely a questiop for the exercise of your best judgment, adapting the testimony of the witnesses to the land and to the location and construction of the road upon it, as you saw it, and also using your own judgment and knowledge in the matter;] 6 and upon whatever sum you shall find to be payable in dollars and cents the plaintiff would be entitled to interest from September, 1886, not as a separate item, not as interest, but to be added to the sum total as damages, from September, 1886, because that was the time agreed upon hero or not in dispute, that the land was taken..... —The jury returned a verdict in favor of the plaintiff for $4,975.50. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error: 1-7. The portions of the charge embraced in [ ] 1 to 7 8-10. The answers to the plaintiff’s points.8 to 10 11, 12. The portions of the charge embraced in [ ] 11 12
143 Pa. 521McGuire v. James (1891)
No. 43 January Term 1891, Sup. Ct.; court below, No. 288 May Term 1888, C. P. On April 5, 1888, John McGuire brought replevin against John H. James, for a bay mare of the value of two hundred dollars. The defendant gave bond, was permitted to retain the mare, and pleaded non-cepit and property. At the trial, on January 17, 1890, the plaintiff introduced testimony to show that, in 1882, he bought two colts, one of which was the mare in suit, from his step-father Patrick Fox ; that at that time and afterwards, being over twenty-one years of age, he was employed on a railroad but made his home with his said step-father, paid his board, and assisted to support the family; that he had paid for the colts in full out of his earnings, paid for their keeping, and used them as his own when he had occasion to do so, until on March 5, 1888, the mare in suit was sold at constable’s sale to the defendant, after notice in writing that she was the plaintiff’s property. The plaintiff’s case did not disclose when the judgment against Patrick Fox was entered, nor when the indebtedness for which it was obtained arose. At the close of the plaintiff’s testimony, the court, Woodward, J., being of the opinion that there was not a sufficient change of possession, in regard to the property, to make a valid sale as against a creditor who had obtained a judgment, made a levy, and obtained a title by a sale thereunder, on motion entered a judgment of nonsuit, with leave, etc. A rule to show cause why the nonsuit should not be taken off having been argued, the court, Woodward, J., on November 1, 1890, citing Crowley v. Irvin, 1 Penny. 227, entered an order discharging said rule; exception. Thereupon, the plaintiff took this appeal, assigning the orders entering the judgment and discharging said rule for error.
143 Pa. 525Volkenand v. Drum (1891)
No. 114 January Term 1891, Sup. Ct.; court below, No. 576 October Term 1886, C. P. On August 24, 1886, the prothonotary of the court below entered judgment in favor of A. F. Yolkenand against Milton Drum, “for $750, payable one year after date,” on a note under seal bearing date April 1, 1888, signed by the defendant, whereby the latter promised to pay to the order of the plaintiff $750 one year after date, with six per cent interest, “empowering any attorney of any court of…
143 Pa. 532Dersheimer v. Maloney (1891)
No. 324 January Term 1891, Sup. Ct., court below, No. 64 December Term 1887, C. P. On October 1, 1887, P. W. Dersheimer and B. Griffin, trading as Dersheimer & Griffin, issued a scire facias sur mechanics’ lien filed against Thomas Maloney, owner or reputed owner, and Thomas J. Nichols, contractor. The defendant Maloney pleaded nil debet, payment with leave, etc. At the trial on January 15, 1891, it was made to appear that, on August 10, 1886, Thomas Maloney, the defendant, entered into a contract, under seal, with one Thomas J. Nichols, whereby the said Nichols, in consideration of $7,220, covenanted that he should and would “ on or before December 1, 1886, well and sufficiently erect, finish and deliver in a true, perfect and workmanlike manner, the materials and work required in the erection and completion of a three-story frame building ” for the said Thomas Maloney, agreeably to the plans, drawings and specifications prepared therefor by John A. Duckworth, architect. The said contract contained the following provisions : “2.....Eighty-five per cent will be paid as the work progresses on labor and materials, in monthly payments, according to and upon the estimate of the architect. The proprietor reserves the right to pay bills, deducting fifteen per cent until completion: Provided, that in each case of payment a certificate shall be obtained from the architect;.....and, provided further, that in each case a certificate shall be obtained by the contractor from the clerk of the office where liens are recorded, signed and sealed by the clerk, that he has carefully examined the records and finds no liens or claims recorded against said work; neither shall there be any legal or lawful claims against the contractor in any manner, from any source whatever, for work or materials furnished on said works.” “ 7. The proprietor will not, in any manner, be answerable or accountable for loss or damage that shall or may happen to said work or any part or parts thereof respectively, or for any of the materials or other things used and employed in finishing and completing said works; or for injury to any person or persons, either workmen or the public, or for damage to adjoining property.” .... The plaintiffs were sub-contractors under Nichols, and furnished lumber and materials for the building. At the close of the testimony, the court, Woodward, J., charged the jury: The building in question was erected for Mr. Maloney by Thomas J. Nichols, the contractor, under a written contract, which has been read in your hearing and is in evidence; and without quoting the language of that contract accurately at this time, we call your attention to the fact that it substantially provides that Nichols, the contractor, is to finish this house for Maloney, the owner, and' that said Maloney is not to be liable for any claim, or lien, or encumbrance, to sub-contractors, arising out of work and labor performed, or for material furnished in the erection of the building. That, in effect, in our judgment, is the meaning of the provision in the contract to which your attention has been called. I do not profess to quote the language precisely. If we are correct in this view of the contract, then it follows that Dersheimer & Griffin, who were sub-contractors under Nichols, and who furnished lumber and material for this building, had no right to file their lien. In other words, they were bound by the covenants of the contract between Maloney and Nichols, and their right, which under other circumstances might exist, to have a lien against this property, was gone and disposed of by the contract. Now, the counsel have submitted to us two points, which raise distinctly the legal questions I have suggested. Defendant’s first point reads as follows: 1. If the jury believe Dersheimer & Griffin sub-contracted with Nichols, to furnish a part of the material for the building, and that Nichols had contracted with Maloney to build a house at a price agreed upon between them, and that Maloney under the contract was not in any manner to be answerable or accountable for any of the materials or other things used and employed in finishing and completing the building, Dersheimer & Griffin cannot maintain a lien against Maloney’s building for material furnished by them under a contract with Nichols. Answer: That point, gentlemen, we feel it our duty to affirm.1 2. Under the law and the evidence, the verdict must be for Maloney, the defendant. Answer: There being no dispute about the facts referred to in the second point and assumed therein, we say to you that it is well taken also, and it is our duty to charge you that under the law and the evidence your verdict in this case should be for the defendant.2 The jury returned a verdict in favor of the defendant. Judgment having been entered, the plaintiffs took this appeal, assigning for error: 1, 2. The answers to the defendant’s points.1 2
143 Pa. 537Stoddart v. Price (1891)
No. 322 January Term 1891, Sup. Ct.; court below, No. 812 May Term 1890, C. P. On May 19, 1890, an issue in sheriff’s interpleader was ordered, wherein William Stoddart, claimant, was made plaintiff, and S. B. Price, an execution creditor of Aaron Whitaker, defendant, to determine the title to certain personal property levied upon as the property of said Whitaker. Issue joined." At the trial on January 13, 1891, it was made to appear that on April 7, 1879, one Isaac Livingston purchased at sheriff’s sale, on an execution against Aaron Whitaker, the furniture, etc., of a hotel then carried on by Whitaker in Wilkes-Barre ; that, some months afterwards, Livingston sold the property thus purchased to William Stoddart, a brother-in-law of Whitaker, for $2,000; that one Paine, the owner of the hotel building, enlarged it in 1885, and Whitaker about the same time leased an adjoining building or two in addition, and, to enable him to furnish and use the additional rooms thus obtained, Stoddart advanced to him an additional sum of money; that Whitaker continued in the business until, on an execution against him issued in May, 1890, upon a judgment “confessed in favor of S. B. Price, trustee, on February 12, 1880, and duly-revived, the property in dispute was levied upon by the sheriff as the property of Whitaker. Whereupon, this issue. Stoddart testified, inter alia, as follows : “Q. After this assignment of property was made to you, what were the terms under which this property was left in the possession of Mr. Whitaker ? A. After I paid for it and got possession, I left it there with him, to try and make some money out of the thing and pay me if he could. Q. What was the arrangement between you ? A. Well, that is all the arrangement there was. He was to go on and- run this thing and try to make some money and pay me, and if I got dissatisfied with the thing, of course I was to take possession of it and dispose of it at any time it suited me. I have been trying to get him to make some money. Q. The arrangement was that any time you saw fit you should come and get those goods ? A. That is it exactly; the goods were mine and any time I choose to take them I could take them. Q. Has any other arrangement concerning that property been made with you since that time ? A. No, sir; no other arrangement. Q. After that time other furniture was put in that hotel ? A. Yes, sir. Q. State to the court and jury the circumstances under which that other furniture was placed there ? A. Well, that other furniture was put there as my agent. He acted as my agent for the furniture; bought some furniture and things and put them in there, I presume, with my money. Q. Tell the terms of the agency? A. What do you mean by that? Q. How much were you to get out of this and how much was Whitaker to get out of this ? ” Defendant’s counsel: “ Q. Was all this arrangment ever reduced to writing? A. No, sir; never reduced to writing.” Plaintiff’s counsel: “Q. Now, go on and state the terms under which Whitaker became your agent and under which this additional furniture was placed in the hotel? A. Well, the only agreement that we had of terms about the arrangement was this, that I was trying to help Whitaker make a living and make some money and pay me; and the old hotel was too small; he claimed to me he could not make any money and he got Mr. Paine to put up an extra building and he leased the rooms over that one, Mr. Ward now has a store, and ho also leased the building of which Mr. Birbock is the agent, I don’t know whether he is the owner of the property or not. I have never seen the lease. And that place had to be furnished and the only way he could furnish it was by me to assist him and I was in and had to stay in. Q. If you did assist him, state the manner in which you assisted him. You assisted him and by your assistance this additional furniture was procured I suppose ? A. This additional furniture was procured. Q. Upon what terms did he hold that additional furniture ? A. He was to get a living out of this business and pay me, if he could,' and when I was paid what I had put in, the thing was his. Q. Has he ever paid you anything ? A. Never paid me a cent. Q. Up to the time he did pay you, what was your arrangement with respect to that furniture, whose property was it to be up to the time of his payment to you ? A. Why, it was my property. Q. What were your words to Whitaker respecting that part of your bargain? A. My words to him was, go ahead and buy that property as my agent, and I would assist him iu paying for it. If we could not get money enough out of this hotel in some shape, why, I would try and raise the money and help pay for it. Q. State clearly what was said at that time ? A. In regard to the new furniture ? Why, simply to go on and what money he could make over and above a living belonged to me until I was paid. That is all the contract there was about it. Q. State what was said as to your right to take the furniture, if anything ? A. I had a perfect right at any time that I was satisfied that he was not doing right, to dispose of the furniture, take it; it was absolutely mine, you know.” Stoddart testified, further, that for the additional furnishing he had advanced to Whitaker $500, of which $300 had been paid back, and that he had in Whitaker’s business $6,000 altogether. Aaron Whitaker testified for the plaintiff: “ Q. Will you state whether this property embraced in this schedule is also embraced in the levy upon the execution of S. B. Price, trustee, against you ? A. Yes, sir; all of it. Q. With reference to this property that was returned as sold to Mr. Livingston; state what arrangement you made, if any, with Mr. Stoddart with respect to the business there and with respect to the property he purchased from Mr. Livingston? A. After he purchased the property he came over there and says, I have purchased those goods at sheriff’s sale of Mr Livingston, and he says, I will leave them in your possession, and if you can pay me for them, why, I will sell them back to you, but if you cannot pay me for them they are subject for me to take any time I want them. I want that distinctly understood that they are my goods until I get my pay for them..... Q, How was the hotel business run ? You took the lease in your own name ? A. Yes, sir. Q. Took the license in your own name? A. Yes, sir. Q. What interest did Mr. Stoddart have in that? A. All the interest he had in there was to get his money back out of the business if I ever made enough to give it to him. He let me have the furniture there as a matter of course, and if I could pay him back why he was to sell me back the furniture or do what he pleased with it. It was his furniture. It is his furniture to-day. I do not own a dollar of it. Q. And then to give the business back to you? A. Yes, sir. Q. Whether you have ever made enough out of the business to pay him anything that he ever put into the hotel? A. No, sir, I never made enough, and up to last January I am eleven hundred dollars out besides.” The defendant in the issue offered no testimony. The case being closed on the evidence, the court, Woodward, J., charged the jury in part as follows : Mr. Stoddart having thus become the owner of the personal property of Aaron Whitaker, which had been sold by' the sheriff, then entered into an arrangement with Whitaker, the nature and character of which gives rise to the legal question involved in this case. The evidence as to this arrangement is contained in the testimony of Mr. Stoddart himself, and of Mr. Whitaker. There is no conflict whatever in this testimony as presented by the plaintiff; and it therefore becomes the duty of the court, if they entertain the opinion that the evidence shows no case in favor of the plaintiff, so to declare as matter of law. In other words, it is the duty of the court to say whether the thing done, was as matter of law, so far as regarded the rights of creditors of Whitaker, a conditional sale of the property by Stoddart to Whitaker, or a mere bailment of it, in which, while Whitaker remained the possessor and manager, the title was really in Stoddart, so that the creditors of Whitaker could acquire no title by a sale made upon a levy in May, 1890. If at the date of this levy the title to these goods was in Stoddart and not in Whitaker, then they would take nothing by a sale. But if, on the contrary, Whitaker was at the time of the levy, the real owner, then the defendant in this issue should have a verdict for the property in dispute. [As we view this question, it is one of law, simply, and therefore for the court to decide by giving the jury what are called binding instructions on the subject.] 6 In doing this we have the satisfaction of knowing that if we err in our views of the law, the Supreme Court will correct our mistakes. [We say to you, gentlemen, that in our judgment, the transaction between Stoddart and Whitaker, which resulted in leaving the possession and control of all this personal property in Whitaker, was not a bailment but a conditional sale; and therefore the creditors of Whitaker had a right to seize this property, and sell it as Whitaker’s. It was not a bailment, as plaintiffs ask us to hold. A bailment is defined as a delivery of goods in trust for some special object or purpose, on a contract express or implied that the trust shall be faithfully executed. The transaction, in our opinion, under the undisputed evidence, was not a delivery of goods in trust for a special object or purpose, in such a manner as to amount to what is known in the law as a bailment. A bailee is defined to be the person to whom goods are committed in trust, and who has a temporary possession and an exclusive property in them for the purposes of the trust. We cannot understand from this evidence that Mr. Whitaker stood in the position of a bailee of these goods.] 4..... [The transaction, in the present ease, is described by Mr. Stoddart and Mr. Livingston. Mr. Stoddart’s statement is as follows: “ After I got possession of this property I left it with Whitaker. He was to use it, and I was to have it back whenever I saw fit to take it. No other arrangement was made. After this, other furniture was put in the hotel; my money paid for it. The arrangement was made with a view of enabling Whitaker to make a living. The building was enlarged by Mr. Paine, the owner. Whitaker was to get a living out of the business, and then to pay me what he owed me, and then the property was to be his. The property was to be mine in the meanwhile,” etc. Mr. Whitaker tells the transaction substantially in the same way, stating that he took possession of this property with the undertaking and arrangement that he was to run the Exchange Hotel as usual, using this furniture for that purpose. He was to make a living for himself and his family out of his business; if anything remained over he was to pay it to Mr. Stoddart, who had befriended him; and when he had fully paid Mr. Stoddart, then he, Stoddart, was to convey the property or sell it back to him, Whitaker; and that under this arrangement he did remain in possession of all of this property for something over ten years. Now, while it is clear, that Mr. Stoddart has acted in all this matter in the kindest possible manner and with the best motives, and while we do not for a moment doubt the good faith of his conduct in all respects, we are still bound, in administering the law, to say to you that this transaction amounted in the eye of the law to a conditional sale of this property by Stoddart to Whitaker; and that being the case, the creditors of Whitaker would have a right to levy upon it and sell his interest in it. Entertaining these views, and regretting the hardship which befalls Mr. Stoddart, under all the circumstances of the case we say to you, as we are requested to say in a point submitted, that your verdict must be for the defendant.] 5 We are asked by the plaintiff to charge you on the following points: 1. The record and documentary evidence in the case shows that on the seventh day of April, 1879, Isaac Livingston became the owner of certain personal property, consisting of furniture, etc., in the Exchange Hotel in the city of Wilkes-Barre, by virtue of a sheriff’s sale to him on an execution against Aaron Whitaker, the occupant or keeper of said hotel, which property he afterwards sold to William Stoddart, the plaintiff, whereby (there being no evidence to the contrary) said Stoddart became the bona-fide owner of said personal property. Answer: That point we affirm. 2. A loan of personal property, subject to be turned into a sale by compliance with certain conditions, does not vest in the bailee such an ownership as subjects the property to levy and sale upon an execution for his debt. Answer: We say to you that in our opinion that point is not applicable to the case, and we decline to affirm it.1 3. The uncontradicted evidence is that all the property levied upon under the defendant’s execution, and described in his levy as being contained in rooms one to fifty inclusive, and in the parlor, reading-room, bar-room, billiard-room, dining-room and kitchen, is the same property as that which Isaac Livingston purchased at the sheriff’s sale on the execution against Aaron Whitaker, and which he transferred to William Stoddart, excepting two pool tables in the billiard-room; and if the jury believe this evidence, and that Stoddart loaned this property to Whitaker, with the understanding that he (Stoddart) might take it away at any time, and with the further understanding that whenever Whitaker paid him what the property cost him, he would transfer it to him, such arrangement did not vest in Whitaker an ownership that would subject it to levy and sale on an execution for his debt; and if Whitaker’s possession has been retained with this understanding, the jury should find as to this property in favor of the plaintiff. Answer: We have substantially negatived that point in our general charge, and we now formally decline to affirm it.2 4. The uncontradicted evidence is that the remainder of the property contained in the defendant’s levy, except the wines, liquors and cigars, was purchased by Whitaker as agent for Stoddart, and that it was retained and used by him subject to and included in the original understanding between Stoddart and himself concerning the property purchased by Stoddart from Livingston. If the 'jury believe this evidence, no such ownership of the new furniture was vested in Whitaker as would subject it to levy and sale for his debt, even if ho made payments upon it for Stoddart, or paid to the latter a portion of the money advanced by him for the purchase, and as to this new property (except the wines, liquors and cigars) the verdict should be for the plaintiff. Answer: In our view of the case, we cannot affirm this point, and it is negatived.3 [We therefore take the responsibility, as we feel bound to do, in this case, of saying that under the law your verdict should be for the defendant.] 7 —The jury returned a verdict for the defendant, as directed. Judgment having been entered, the plaintiff took this appeal, assigning for error: 1-3. The answers to the plaintiff’s points.1 to 3 4-7. The portions of the charge embraced in [ ] 4 to 7
143 Pa. 548Henry v. Huff (1891)
[To be reported.] (а) The plaintiffs in ejectment having shown title to a tract that included the land in dispute, the defendant put in evidence a deed to himself from plaintiffs’ ancestor for a part of said tract. The controversy was over the location of one line, given in the deed as running from a stone corner on a boundary line of said tract, N. 34½o E., at right angles, across said tract to another corner. (b) The bearing given, N. 34½° E., and the statement that the line, formed a right angle with the line from which it started, were inconsistent. Other circumstances showed that the bearing was a mistake. The line was described, also, as touching “ the fence at the southeast part of the improvement.” There were two clearings on the land of the grantor, one on the northwest and the other on the southeast half thereof: 1. The burden of proof was on the defendant to show that the disputed land was enclosed by the disputed line; and, as the lengths of the other lines of the land conveyed to him were not given in the deed, and the line in question was therefore to be located by the monuments called for, the defence must fail if neither of the points, the corners at the ends of the line and the intermediate fence, could be located by the testimony. 2. The inconsistency in the description, being due to an evident mistake, did not render the deed ambiguous; nor did proof of the existence of two clearings develop a latent ambiguity, unless the testimony tended to show the existence of two improvements, having each a fence at the southeast part, either of which might answer the description of the intermediate point given. 3. The improvement mentioned in the deed was presumably upon the land conveyed; and, as the fence referred to as a monument must therefore be upon the southeast side of the improvement, proof that the line claimed by defendant would touch a fence on the northwest side of a clearing, in the southeast part of the entire tract, admittedly not conveyed, did not exhibit a latent ambiguity. 4. A man cannot give a construction-to a deed, or make a eonsentable line, by not dissenting from acts of which he had no knowledge; wherefore, the fact that the defendant, during a series of years after receiving his deed, cut timber from the land in controversy, could have no bearing on the true location of the line, in the absence of proof that the grantor and his successors had knowledge thereof. 5. References by counsel, in addressing a jury, to the wealth or poverty of the parties, to the strength of municipal or private corporations and the comparative helplessness of an individual citizen, are proper when made in a spirit of fairness, and for the purpose of stimulating the jury to a careful and conscientious discharge of duty. 6. But, when such references are made, and the changes are rung upon them for the evident purpose of inflaming the passions and prejudices of jurors, and leading them to disregard their duty, the actual facts and the legal rights of the parties, in the particular ease, it is the duty of the judge, upon request, to interfere. 7. A party has the right to have the official stenographer enter upon his notes any objectionable remarks made by counsel in the argument. In this case, the record, so made of the words objected to, failing to exhibit the connection in which they were spoken, the Supreme Court assumed that the court below was right in declining to interfere.
143 Pa. 564Holloway v. Jones (1891)
No. 387 January Term 1891, Sup. Ct.; court below, No. 488 October Term 1888, C. P. On August 11, 1888, Byron Holloway, as trustee for A. B. and A. L. Davenport, brought ejectment against John Jones, M. Bergan, Wm. H. Cornell and Henry Cornell, to recover a tract of land in the township of Plymouth, containing three hundred and fourteen acres more or less, being a part of a tract in the warrantee name of Phineas Bradley. Issue. At the trial on February 13, 1891, it was made to appear that in the spring of 1880, A. L. and A. B. Davenport, brothers, bought and took possession of 200 acres of the Phineas Bradley tract from D. D. O’Neill, who had bought the same at a treasurers’ sale for taxes in 1878; and that in 1886, the defendants went into possession of the northern end of the Phineas Bradley tract. A. L. Davenport having testified to the possession taken by them of the land in dispute, under a deed to them from the county commissioners in 1885, after a tax sale thereof in 1880, was asked: Q. What proceedings were taken, if any, to dispossess you from that land, legal proceedings? Objected to. Plaintiff’s counsel: The purpose of this is to show that the possession of the defendants of the land in question was by virtue of an injunction obtained by one H. H. Harvey and William J. Harvey; that, pending that injunction, the plaintiff’s possession of the whole tract in question was taken from him by virtue of the injunction; that a subsequent arrest was made of the defendants for cutting timber on, and for attempting to take forcible possession of the land of which the plaintiff was in possession; and further, to show that the injunction that had been obtained was subsequently dissolved by the court. By the court: Objection sustained; exception.1 Afterward, the plaintiff offered the record of a proceeding for an injunction, begun December 19, 1887 (?), by Michael Bergan et al. against A. L. and A. B. Davenport, for the purpose of showing: “That the plaintiffs [defendants?] by virtue of the injunction obtained at the instance of the Harveys took possession of the northern portion of this tract, the defendants [plaintiff?] previous to that time being in possession of the whole, and by. virtue of that injunction instituted those proceedings without color of title, they being, as we allege, mere intruders and' trespassers; and in furtherance of this offer, I also propose to prove that a criminal prosecution was instituted against those defendants for entering upon and cutting timber on the land in controversy; that a petition was made out in their behalf and a hearing had, habeas corpus hearing, before Judge Woodward; and that they were discharged pending the proceedings upon the injunction which had been previously granted. To be followed by evidence to show that the injunction was dissolved, and that they are simply intruders and trespassers on the land in controversy.” Objected to. . By the court: We sustain the objection. We think you will have to come down to the question of whether or not you have title to the land described in the writ; that is the issue you will have to try; exception.2 The case .presented by the plaintiff’s testimony sufficiently appears in the charge of the court below. The defendants, in their case in chief, offered, inter alia, Will Book, J., p. 221, will of Jameson Harvey, dated March 21, 1884, admitted to probate July 14, 1885, devising the testator’s residuary estate, including the land in controversy, to Wm. J. and H. H. Harvey, grantors to the defendants. Objected, that no title had been shown in Jameson Harvey. By the court: As we stated at the .outset, this is competent evidence on behalf of the defendants, for the purpose of showing color of title; it does not show title, perhaps, but it shows color of title, and for that purpose we admit it; exception.3 At the close of the testimony, the plaintiff presented the following points for instruction: 1. That from 1879 to the spring of 1886, A. B. Davenport and A. L. Davenport, for whose use this action was brought, were in peaceable possession of the tract of land in the warrantee name of Phineas Bradley, located in the township of Plymouth, said county. 2. That their possession and title to said lands were in pursuance of purchases made by them at tax sales, and the assessment to them of the lands, and of their payment of taxes thereon since said purchases. 3. That the law clothes a purchaser at a tax sale with the constructive possession of the land purchased, and the production by them of the commissioners’ or treasurer’s deed is sufficient to entitle them to recover as against the defendants, whom the uncontradicted testimony shows to be trespassers and without title of any kind. 4. As against them, the verdict of the jury should be for the plaintiff, for the land described in the writ. The court, Rice, P. J., charged the jury in part as follows : The plaintiff, Byron Holloway, brings an action of ejectment for a part of what was originally the Phineas Bradley tract of land in Plymouth township. The part for which he brings this action, has been spoken of during the trial of the case as the northern end of the tract. It is that part which is north of what has been spoken of as the division line which was painted by Mr. Jameson Harvey some years ago. Now, in an action of ejectment the general rule is, that the plaintiff must recover, if he recovers at all, upon the strength of his own title, and not upon the weakness of his adversary’s; the law respects the possession of land to that extent. There are exceptions to this; as, for example, where the man is in the peaceable possession of a piece of land, and another surreptitioxxsly, or by fraud, or by force puts him out of possession, there the person ejected may recover upon the strength of his possession without showing title, unless the defendant in possession can show that he has a better title. It is contended upon the part of the plaintiff that this case comes within that principle; that, even though the plaintiff has not shown, a valid, legal title to the land in controversy, still, he has shown such a right as entitles him to recover, as against these particular defendants. We are unable to agree with the counsel who has so earnestly argued this proposition during the trial and at the conclusion of the trial. Under the testimony, it appears that in 1878, about the first of November, two hundred acres of the Phineas Bradley tract of land was sold at treasurer’s sale to D. D. O’Neill for taxes assessed in the years 1874 and 1875 in the unseated list as unseated land. This deed to Mr. O’Neill was subsequently assigned to A. L. and A. B. Davenport, and some time in 1879 they went into possession. But, according to the testimony of Mr. Davenport himself, they limited their claim at that time to that portion of the tract which lies below or south of the division line, although he refuses to recognize the existence of such a line. He admits, however, that it was not until 1888 that they asserted any claim to any portion of the Phineas Bradley tract north of that line, and not until the fall of 1885 'did they attempt to exercise any acts of ownership there; they allege that at that time they did cut some timber upon the tract, but that they were stopped. [In 1886 these defendants, claiming the right under Mr. Jameson Harvey, went into possession of the northern end of the tract, erected a saw-mill and other buildings, and so far as appears have been in possession from that time until the present. We say to you, that under this testimony there was no such possession shown in the plaintiff, Holloway, or in the Davenports for whom he holds as trustee, prior to 1886, as brings their case within the principle contended for by the plaintiff; in other words, that they did not have such actual, peaceable and exclusive possession, at that time, as would protect them as against the defendants, or make the defendants occupy the position of mere trespassers and intruders.] 4 . If that principle does not apply, then the question arises, has the plaintiff shown such a title in law as entitles him to a verdict at your hands, and a judgment of the court? We have already spoken of the title derived under the O’Neill sale; that appears to have been the title only to the two hundred acres, or thereabouts, at the south end of the tract. We come next to the title derived by the sale of the commissioners in November, 1885, and we think, after as careful a consideration of the case as we have been able to give, that the plaintiff’s case must rest upon the validity or invalidity of that sale. In this state, land is divided, for the purposes of taxation, as you all know, into two classes, seated and unseated lands. Seated land is such as is redeemed from a state of nature by residence and cultivation, or by either. It would appear that some time about 1864 or 1865 there was a residence upon the lower end of the tract, a saw-mill there and a small clearing. Whether that was of such a nature as to render the whole tract seated, or whether it only rendered the southern portion of the tract seated, seems to us immaterial at the present time. If that residence was afterwards abandoned and the land was allowed to run wild again, it would become, under the definition of the law, unseated. Now, this is a fact which, if there were any dispute about it at all, would be for the jury to decide. Even if it depended solely upon the credibility of the defendants’ witnesses, it would be for the jury to decide. But, according to the testimony of Mr. Davenport himself, who with his brother is undoubtedly the real owner of the title which is asserted here, it was in 1877 wild land. It presented that appearance not only to the assessor, but to any person who would look at it. The seating of it years before did not make it seated land at that time, under the testimony in the case. There are two methods of selling land for taxes; one method applying to seated land and another method applying to unseated land. In one case, the courts say in the case of taxes assessed upon seated land, that the owner is the debtor for the taxes; in the case of taxes assessed upon unseated land, the land itself is the debtor and is charged with these taxes. Unseated land may be assessed with taxes and sold in any name which sufficiently identifies it. It may be assessed and sold in the name of the real owner, or of the original warrantee, or it may be sold by any other description which fully and sufficiently identifies it. These taxes were assessed in 1877 and 1878. They were assessed, not against the land in the name of Pirineas Bradley, but against Daniel Seabert. It is claimed that this was a valid assessment of the land; that this was a sufficient identification of the land, because Mr. Seybert, Daniel F. Seybert, had become the purchaser of the land some years before from Mrs.- A. B. Kulp, who had bought the land at a treasurer’s sale in 1868. There is a serious question in my mind whether or not the name of Daniel Seabert is a sufficient identification of the land, taken by itself alone. Perhaps, under the circumstances, it would be a question of fact for the jury, and, therefore, we do not positively rule the case upon that point. [But there is another principle which is well settled by all the authorities, that where land that is seated is sold as unseated, is assessed and sold as unseated, it passes no title; or where, on the other hand, unseated land is assessed and sold as seated, it passes no title; and, according to the testimony in this case, this land, if it was this land, if it be sufficiently identified by the name of Daniel Seabert as being this land, this land was assessed in 1877 and 1878 in the seated list, and was sold in 1880 as seated land to the commissioners. They held it for five years and then they sold it at public sale to the Davenports, for whom the plaintiff claims. As we have said, under the uncontradicted testimony in the case, at the time that this assessment was made it was unseated land; therefore, there was no authority to assess it as seated land, or to sell it as such.] 5 [We therefore instruct you, for this reason, that the plaintiff has failed to show a title which entitles him to a verdict at your hands, and, under all of the testimony in the case, your verdict should be in favor of the defendants.] 6 We have now put the case in a position where it may be reviewed by the Supreme Court, and if we have made any error it may be corrected. In view of this disposition of the case, plaintiff’s points are answered in the negative and defendants’ points are answered in the affirmative.7 —The jury returned a verdict for the defendants. Judgment having been entered, the plaintiff took this appeal, assigning for error: 1, 2. The refusal of the plaintiff’s offers.1 2 3. The admission of the defendants’ offer.3 4-6. The portions of the charge embraced in [ ] 4 to 6 7. The refusal of the plaintiff’s points.7
143 Pa. 573Hazleton Co. v. Union Imp. Co. (1891)
No. 344 January Term 1891, Sup. Ct.; court below, No. 272 September Term 1889, C. P. No. 2, in Equity. On October 17, 1889, the Hazleton Mercantile Company, Limited, filed a bill in equity against the Union Improvement Company, and W.- Madison Monroe, W. A. Marr and H. B. Search, doing business as W. M. Monroe & Co., praying, upon the facts therein averred with relation to a certain construction contract, “1. That the said the Union Improvement Co. be directed by the decree of the court to pay to plaintiffs, out of the moneys in their hands and due upon the contract aforesaid, the said sum of $1,600, with lawful interest on the same from the time the said sum became due; your orators tendering themselves ready and willing to allow all proper charges for expenses to the defendants’debtor, because of the transfer of the debt, and otherwise to do equity in the premises. “ 2. Other relief,” etc. The cause, being put at issue by answers and replication, was referred to Mr. George Wharton Pepper, as examiner and master, who on June 4, 1890, filed a report finding in substance the following facts: On August 1, 1887, the Union Improvement Co. enteredinto a contract with A. H. Church, by the terms of which Church was to dig and construct a canal, for the purpose of draining coal mines in Luzerne county. The contract provided that the work should be completed by January 1, 1888; made the chief engineer of the company arbitrator between the parties; declared that Church should not sub-let nor assign the performance of the contract without the written consent of the chief engineer, and provided for monthly payments for accepted work, the company retaining ten per cent of such monthly estimates as a guaranty of faithful performance. It was further agreed that if the progress of the work should not be sufficient, in the opinion of the engineer, to insure its completion within the time specified, the company should have the right to employ extra labor at Church’s expense, “ or the said party of the second part shall have the power to declare this contract void, and may proceed to contract with other parties for the completion of the same; and any and all retained percentages shall be forfeited by the said party of the first part, and become the property of the said party of the second part.” Under this contract, Church began the work, and although it was not finished at the specified time the company allowed him to continue it. On September 14, 1888, there was due Church by the company $5,788, by way of retained percentages. On that date, Church was indebted to the Hazleton Mercantile Co. in the sum of $1,600, and in payment of the debt gave to that corporation the following order: “$1,600. Hazleton, Pa., September 14, 1888. “ Pay to the order of Hazleton Mercantile Co., Limited, sixteen hundred dollars, for value received, and charge the same to my account with the Union Improvement Co., to be taken out of my final estimate on Big Black Creek canal. “A. H. Church. “ To Edward Roberts, Jr. “ Treasurer Union Imp. Co. ” This order was presented to Mr. Roberts a few days after its date by the Hazleton company, but he declined to accept and refused to pay it, and informed the holder that until the work under the contract was completed, it was impossible to tell whether the fund upon which the order was drawn would be in existence. On October 15, 1888, Church assigned his entire contract with the Union Improvement Co. to W. Madison Monroe, and upon the same date he assigned to W. Madison Monroe, Hendrick B. Search, and William A. Marr all the moneys due him by the Union Improvement Co., whether by way of retained percentages or otherwise. This two-fold assignment was explained by Mr. Marr, who said that all three assignees were jointly interested in the contract, but that Mr. Monroe was to do the active work upon it. The assignees took without notice of the prior assignment to the Hazleton Mercantile Co. Church died about a week after this assignment. Soon after the death of Church, the Union Improvement Co. learned for the first time of the assignment of the contract to Monroe, Search and Marr, and upon October 29, 1888, entered into an agreement with these parties, as assignees of A. H. Church, by the terms of which W. Madison Monroe was substituted for Church, under conditions similar to those of the old contract, and it was agreed that the work should be completed by January 1, 1889. The agreement contained this clause: “ The parties of the second part, Monroe et al., agree to indemnify the party of the first part from all suits, claims, demands or liability to any person or persons claiming under the said A. H. Church in respect of the said contract of the first day of August, 1887, or the money due under it.” Monroe & Co. went on with the work and completed it, and it was accepted by the Union Improvement Co. The improvement company carried on their books the sums due Monroe & Co., as due to the assignees of A. H. Church. While the work was progressing Monroe & Co. learned for the first time of the order in favor of the Hazleton Mercantile Co. When the final estimate was made, Monroe & Co. refused to allow the Union Improvement to pay the sum of $1,600 to the Hazleton Mercantile Co., although the balance due the contractors at that date, September 12, 1889, amounted to $7,785.81. Accordingly, the Union Improvement Co. retained the $1,600, with interest, to await the decision of the controversy, and paid the residue to Monroe & Co. Thereupon, the Hazleton Mercantile Co. filed their bill, setting forth these facts and claiming the $1,600, the Union Improvement Co. and Monroe & Co. being joined as defendants. W. Madison Monroe, and H. B. Search, and William A. Marr filed their answers, denying that any funds were due to Church on September 14, 1888, and alleging that the assignment of that date was invalid. To this answer the plaintiff filed a replication. The Union Improvement Co. in its answer admitted the facts as above set forth, declared its readiness to pay the retained fund as the court should direct, and prayed that the Hazleton Mercantile Co. and Monroe & Co. be required to interplead. The agreement of October 29, 1888, referred to in the foregoing findings, recited the assignment by Church to Monroe of the original contract in consideration of a large debt due from Church to Monroe, and the assignment to Monroe, Search and Marr of any moneys due to Church under said contract; that, after the assignments, work had been continued by the men employed by Church, without notice to the improvement company of any changes; that, whether there would be anything remaining of the fund made up of retained percentages of the price of work done by Church, which could be demanded by the assignees thereof, would depend upon whether the work should be completed without requiring this reserve fund to be used in paying for wages, materials, etc.; and that it was believed “that the assignee of the contract can complete the work provided for in the contract, at less cost and expense than if the same were undertaken by the party of the first part, and may derive some benefit from it.” The agreement then provided that Monroe should complete the canal in accordance with the original specifications by January 1, 1889, and further stipulated, inter alia, as follows: “ 2. He (Monroe) will pay all the persons that were employed by A. H. Church in the performance of the work, or who have been actually working on the canal, either as superintendent, mechanics, or laborers, or in any other capacity, and the rents of houses and buildings due the party of the first part, and will assume the said rents for the future, of houses occupied by men employed on the work. “ 3. There shall be paid to him by the party of the first part the same sums that would be paid under the contract to the said A. H. Church, had he continued to prosecute the work in person. “ 4. If, at the completion of the work and the acceptance and approval thereof, as provided in the above-recited contract, there shall remain anything in the hands of the party of the first part, of the money due A. H. Church under the terms of this contract, on the fifteenth day of October, 1888, the same shall be paid to the said parties of the second part.” Upon the facts found by him, the master reported his conclusions of law in substance as follows : 1. That the act of the Union Improvement Co. in contracting with Monroe & Co., did not cause Church to forfeit or in any way lose his right to the retained percentages in the hands of the improvement company; and, inasmuch as the claim of the plaintiffs was prior in time to that of Monroe & Co., the plaintiffs were entitled to the $1,600, if the order of September 14, 1888, was a valid assignment to them of that amount. 2. That, upon both principle and authority, the order of September 14, 1888, was a valid assignment of so much of the moneys in the hands of the Union Improvement Co., its validity not depending upon acceptance by the debtor; citing and discussing: Mandeville v. Welch, 5 Wheat. 277; Ferran’s Est., 1 Ashm. 319; Hopkins v. Beebe, 26 Pa. 85; Patten v. Wilson, 34 Pa. 299; Caldwell v. Hartupee, 70 Pa. 74; Jermyn v. Moffitt, 75 Pa. 399; Lehigh V. R. Co. v. Woodring, 116 Pa. 513; Ruple v. Bindley, 91 Pa. 296; Phœnix Iron Co. v. Philadelphia, 2 W. N. 596; Murphy’s Est., 4 W. N 39; Philadelphia’s App., 86 Pa. 179; Sibbald’s Est., 18 Pa. 249; James v. Newton City, 142 Mass. 366; Row v. Dawson, 1 Ves. Sr. 331; Peugh v. Porter, 112 U. S. 737. The master accordingly recommended a decree that the Union Improvement Co. pay to the plaintiff the sum of $1,600, with interest from September 14, 1888, and that the costs of the case be paid by the plaintiff and W. M. Monroe & Co., in equal proportions. Exceptions to the report of the master, after argument thereof were sustained by the court, Hare, P. J., who, on January 16, 1891, “ in the belief that the draft was on a fund that never became due or payable to the drawer, and did not operate as an equitable assignment,” entered a decree dismissing the bill and awarding the fund in controversy to the defendants, Monroe, Search and Marr. Thereupon, the plaintiff took this appeal, specifying inter alia that the court erred: 1. In awarding the fund in question to Monroe & Co. 3. In not awarding said fund .to the extent of #1,600 to the plaintiff.
143 Pa. 584Diehl v. McCormick (1891)
No 60 January Term 1890, Sup. Ct.; court below, No. 128 C. P., in Equity. On October 25, 1887, proceedings by bill in equity were begun by Joseph Diehl, administrator of Isaac Diehl, deceased, against George A. McCormick, surviving partner of Isaac Diehl and George A. McCormick, trading as Diehl & Co., and the same day a receiver for said partnership was appointed.
143 Pa. 595Duncan v. Hartman (1891)
No. 143 July Term 1890, Sup. Ct.; court below, No. 58 October Term 1888, C. P. On August 4, 1888, a statement of claim was filed in trespass, brought by P. S. Duncan and others against Jesse L. Hartman. Issue. At the trial on May 26, 1890, an agreement was given in evidence waiving proof of plaintiffs’ title to the lands the’locus in quo of the alleged trespass, the contention being as to the validity of the lease under which the defendant claimed.
143 Pa. 607Levy v. Cooke (1891)
No. 418 January Term 1891, Sup. Ct.; court below, No. 54 January Term 1889, C. P. On December 21, 1888, Isaac E. Levy brought trespass against Robert Cooke, Jr. Issue.
143 Pa. 615Estate of Wengerd (1891)
No. 119 January Term 1891, Sup. Ct.; court below, No. 407 June Term 1890, O. C. To the number and term stated of the court below, Jacob Koser and John I. Gettle, executors of the will of John Wen gerd, deceased, in obedience to a citation settled their account, exhibiting a balance in their hands for distribution. The account was referred to Mr. R. M. Parlcer, as auditor, for the purpose, inter alia, of reporting a schedule of distribution. The auditor found in substance the following facts : John Wengerd, the testator, died on March 2, 1888. By his will, admitted to probate on March 9, 1888, after bequeathing to Marian Beaver a legacy of $150, he provided as follows: “ I direct my executors hereafter named to sell at public or private sale my house and lot on the east side of Penn street, known as the pastorage; and for the purpose of enabling them to do so, I hereby authorize them to make, execute, acknowledge and deliver the necessary deed or deeds to grant and convey the same to the purchaser or purchasers thereof; and the proceeds of the said sale, together with the proceeds of all bonds, notes, and cash on hand, with the proceeds of my personal property, I direct my said' executors, after paying the legacy heretofore mentioned, my just debts and funeral expenses and the expenses of administration, to divide into three equal shares, which I hereby bequeath as follows: To Mary Gettle one third, to Elizabeth Koser one third, and to John Wengerd, Harry Wengerd and Catharine Wengerd, children of my son David Wengerd, deceased, the remaining one third, to be divided between them share and share alike; and in case of the death of any of said children of my son David, before the payment of their said shares, then to be divided between the survivors.” The testator had no debts at the date of his death. With the exception of the house and lot mentioned in the will, his estate consisted of personal property, a -considerable part of it being in corporate stocks. Tbe house and lot were sold by the executors on September 20, 1888, for $860, ten per cent of the purchase money being paid on the day of sale, and the remainder being payable on April 1, 1889. The balance, ascertained by the auditor to be in the hands of the accountants for distribution, was $10,512.80. John Wengerd, Jr., one of the legatees named in the will, died on January 21, 1889, leaving a widow but no issue. By his will, duly admitted to probate, he bequeathed his entire estate to his widow, Jane E. Wengerd, and appointing her his executrix. Before his death, he had received the sum of $200 on account of his distributive share under the will of John Wengerd, Sr., and that amount appeared to have been about a proportionate share of the money in hand available for the payment of legacies at that time. The remainder of the legacy bequeathed to him was unpaid at his death. Subsequently, by consent of all parties interested, there was paid to his widow $100, for the purpose of defraying her husband’s funeral expenses, such payment not to be to the prejrrdice of any of the interests involved. The widow of John Wengerd, Jr., claimed the unpaid balance of the legacy, in his favor, as his executrix and sole legatee; while his surviving brother and sister, Harry and Catharine Wengerd, claimed it under the will of John Wengerd, Sr., asserting that it vested subject to be divested upon the contingency of the death of the legatee before payment. Upon these facts, the auditor reported as his conclusion that the plainly-expressed intention of the testator was to make a gift over to the survivors, in the event of the death of one of the legatees before receiving payment of the legacy, and that the intention so expressed must govern: citing Baker’s App., 115 Pa. 590. He therefore awarded to Harry and Catharine, in equal shares, the whole of the unpaid portion of the legacy in favor of the children of David Wengerd. Exceptions having been filed to the report of the auditor, the court, Sadler, P. J., after argument, filed an opinion and decree as follows: The conclusion arrived at by the auditor seems to be fully supported by Haverstick’s App., 103 Pa. 394. I believe that the distribution made is also in accordance with the intention of the testator. In Muller’s Est., 19 W. N. 320, the direction in the will was to pay the legacy “ immediately ” after the decease of the testator. In the will of Wengerd, the provision is that “ in case of the death of any of said children of my son David, before the payment to them of their said share, then to be divided between the survivors.” It was not immediately payable on the death of the testator. In Haverstick’s Appeal, supra, it was provided that should any of them die before the distribution of the estate without heirs, then the part allotted to such shall be divided equally among the others named. So that the present case and that of Haverstick’s Appeal may be distinguished from that of Muller’s Estate. Again ; the latter decision is by the Orphans’ Court of Philadelphia, and not therefore controlling. And now, October 17, 1890, the exceptions filed to the report of the auditor are dismissed, and the said report is confirmed, and Jacob Koser and John I. Gettle, the accountants and executors of John Wengerd, are hereby ordered and directed to pay out the balance in their bands in accordance with the scheme of distribution prepared by the auditor. —Thereupon Jane E. Wengerd took this appeal, specifying that the court erred: 1. “In holding that the legacy bequeathed by John Wengerd, Sr., to his grandson, John Wengerd, Jr., did not vest in him at the death of the testator, and pass to the appellant, under her husband’s will. 2. “ In holding that while nine tenths of the estate consisted of cash and of first-class stocks, immediately convertible into cash at any time, or distributable by division and- transfer to the legatees, and of good notes, all due and most of them actually collected before John Wengerd, Jr’s., death, the share bequeathed to said John Wengerd, Jr., at least to the extent of said nine tenths, did not become immediately payable to and vested in him.”
143 Pa. 623Hoyt v. Hoyt (1891)
No. 150 July Term 1890, Sup. Ct.; court below, No. 245 March Term 1886, C. P. No. 4, in Equity. On March 6, 1886, Eli W. Hoyt and Freeman B. Shedd, trading as E. W. Hoyt & Co., filed a bill in equity against Frank Hoyt and Walter A. Buhe, trading as F. Hoyt & Co., averring, in substance, as follows: That plaintiffs resided in Lowell, Mass., and were engaged there, and had been, since the formation of their partnership in 1870, in making and selling cologne under the name of “ Hoyt’s German Cologne.” The name “ German ” had been selected merely to give a definite title to the cologne, and they did not intend to offer it as bearing any semblance to German cologne. That they designed three sizes of bottles for this cologne, calling them large, medium and trial size, which retailed for $1.00, 50 cents and 25 cents, respectively. The large and trial 'size they designed in 1870, and the medium in 1876. That in 1871 they 'originated a cap label for the top of the bottle, and a paper label for the body of the bottle, which labels, with the bottles, were their exclusive trade-marks, and the word “ Hoyt’s ” their exclusive trade name. That plaintiffs were the first to use the name “ Hoyt’s ” in making cologne. The name “ Hoyt’s ” as applied to cologne, had always been associated in the public mind with the plaintiffs’ cologne, and the use of that name upon cologne by another . would tend to mislead and deceive the public and be a fraud on plaintiffs. That on July 20, 1871, they copyrighted their said face label, and on August 14, 1877, received a certificate of the registry in the patent office of the United States of said label and trademark. That in 1885 plaintiffs learned that defendants, who were manufacturers of cologne in Philadelphia, had Neen exposing for sale cologne called “ Hoyt’s Egyptian Cologne,” in three sizes, and also a size called “Hoyt’s Dime Cologne,” with labels similar to the plaintiffs’, likely to mislead purchasers and induce them to believe the same was plaintiffs’ cologne. That defendants, by selling cologne under trade-marks imitative of the plaintiffs’, had injured them and deprived them of sales and profits. The bill prayed: 1. For an injunction restraining defendants from selling any cologne in bottles with the labels and caps as described. 2. That defendants be restrained from the use of the word “ Hoyt’s ” on all labels and advertisements of every form, in connection with the sale and manufacture of cologne. 3. That defendants be restrained from using the caps and labels described as defendants’ labels, and from imitating the trademark, bottles and labels of plaintiffs. 4. That defendants be enjoined from simulating in any manner the bottle, cap, labels advertisements and packages used by the plaintiffs. 5. That an account be taken, and for general relief. On March 12, 1886, the defendants filed an answer, averring in substance, as follows : That the plaintiffs, in adopting the word German in the title of their cologne known as “ Hoyt’s German Cologne,” did so to create the impression that their cologne was really German, in order to get the benefit and advantage to be derived from truly foreign and imported cologne, which has a valuable and distinctive reputation and is of fine quality; thus, the plaintiffs were guilty of a deception and misrepresentation in offering their cologne as German Cologne, when it was an American production. That plaintiffs were not the originators of the special sizes of bottles, and were not the first persons to use and apply the name “Hoyt’s ” to cologne; and its use by defendants was not wrongful and would not tend to mislead the public. One of the defendants, Frank Hoyt, had been manufacturing cologne since 1868, and he adopted in 1876 a label as a trade-mark which was duly registered. That defendants’ cologne was called “ Hoyt’s Egyptian Cologne ” and “ Hoyt’s Dime Cologne,” and the labels upon their cologne clearly showed their address and place of business; and there was prominently printed upon their labels, advertisements and goods, a Sphinx and an Egyptian pyramid, distinguishing their cologne from any other manufacture. That defendants, since they had been in business, for ten years past, had put up this Egyptian Cologne, and their Hoyt’s Dime Cologne, different in kind, name and style from the cologne of plaintiffs, and the same could not be mistaken for Hoyt’s German Cologne. Defendants denied the similarity between plaintiffs’ goods and defendants’, and that they intended to deceive purchasers, or, in fact, did deceive them. They denied plaintiffs’ exclusive right to the use of the word “ Hoyt’s,” and denied further that the word German was a good trade-mark, and honestly employed, and asked that the bill of plaintiffs be dismissed. The same day the answer was filed, affidavits presented on behalf of the plaintiffs and defendants were read on a motion by the plaintiffs for a preliminary injunction. Said motion having been argued, the court, Thayer, P. J., on March 27, 1886, filed an opinion, quoted partly in the master’s report, infra, and printed in full in Hoyt v. Hoyt, 2 Pa. C. C. R. 152, concluding: There must, therefore, be an injunction in this case. But it can by no means be as broad as that asked for by the plaintiffs in their bill. The defendants cannot be enjoined from the use of the name “ Hoyt ” upon their cologne. As against other persons of the same name the plaintiff's have no exclusive right to that name. The defendants have, also, we think, the right to use the label placed upon the sides of their bottles, if they will place it upon other bottles not resembling the plaintiffs’ bottles in their peculiar shape, and without the plaintiffs’ peculiar cap label. They might lawfully place it upon the miniature champagne bottles which they formerly used, before they began to imitate the plaintiffs’ peculiar shape, or upon any other style of bottle, which does not bear a striking resemblance to the plaintiffs’ bottles. In other words, their may keep what is their own, if they .will not combine it with the marks and indicia which are calculated to deceive the public and injure the plaintiffs. But the defendants must be enjoined from putting up and offering for sale cologne in the bottles described in the bill, with the labels thereon complained of in the bill. Preliminary injunction awarded, upon security being given by the plaintiffs in the sum of five thousand dollars. A formal decree awarding a preliminary injunction in accordance with the foregoing opinion having been entered, issued and served, issue was joined and the cause referred to Mr. C. Stuart Patterson, as examiner and master. On November 27, 1889, the master filed a report finding, inter alia, that the plaintiffs’ cologne was put up in oblong round bottles with a sunken panel on the back side. The bottles were of three sizes, large, medium and trial. The medium and trial sizes were packed by dozens in cardboard boxes, with separate spaces for each bottle; and when the cover was taken off, the open front exposed the full front labels upon each bottle. The bottles of the large size were packed in wooden boxes having pasted upon the front and back labels printed in black letters upon a white ground, containing the words, “ One Doz. Hoyt’s German Cologne, Fragrant and Lasting. E. W. Hoyt & Co., Proprietors, Lowell, Mass.” The bottles themselves of the large size, containing each about one pint of the liquid, had a cap label pasted on two sides of the neck of the bottle and over the cork, so that in taking out the cork the label must be destroyed, and printed in black upon white paper, having upon one side of the neck the word “ fragrant,” and upon the other side of the neck the word “lasting,” and having upon the centre of the label over the cork the words “ dollar size ” and the initials “ H. & Co.,” arranged in a monogram, and having also upon the inner side of the outer line in the central portion of the label the words “beware of counterfeiters,” and having upon the outer side the words “ E. W. Hoyt & Co., Lowell, Mass.” Upon the front of the bottle there was pasted a label in the shape of a parallelogram, printed upon white paper, in black, red, and gold, with the words, “ Hoyt’s German Cologne, Large Bottle, Price $1.00. E. W. Hoyt & Co., Proprietors, Lowell, Mass. All Genuine signed E. W. Hoyt & Co. Entered according to Act of Congress, 1871, by E. W. Hoyt & Co., in the office of the Librarian of Congress, Washington.” The words referred to in the registration of the -trade-mark were in very small and almost illegible type, but the other words were in larger and more prominent type. The label was pasted on the bottle with the left-hand upper corner higher than the right-hand upper corner, and the left-hand lower corner higher than the right-hand lower corner. Upon the sunken panel in the rear of the bottle appeared, parallel to the axis of the bottle, the words blown in the glass “ E. W. Hoyt & Co. Hoyt’s German Cologne, Lowell, Mass.” The defendants, at the time the bill was filed, manufactured and sold cologne in three sizes of bottles. The large-sized bottles contained a smaller quantity of liquid than those of the plaintiffs, but in appearance they were very like plaintiffs’ bottles, except that in the panel on the back there were blown in the glass, perpendicular to the axis of the bottle, the words “Hoyt’s Egyptian Cologne, F. Hoyt & Co., Piulada., Pa.” The cork was covered by a cap label coming down upon the two sides of the neck of the bottle, printed in black, red, and gold, upon a white ground, and having upon one side of the label the word “ genuine,” upon the other side of the label the word “ signed,” and upon the top of the label the words “ F. Hoyt & Co.” in red upon a gold ground. The front or face label, which was a right-angled parallelogram covering almost the whole front of the bottle, was printed in black, red, and gold, and had upon it the words “ Hoyt’s Egyptian Cologne, delicate and lasting. F. Hoyt & Co., Proprietors, Philadelphia). Registered Patent Office, Trial Size 25 cents. This size bottles 11.00; ” and also an engraved picture of a Sphinx and a pyramid. After the special injunction was served, the defendants abandoned the sale of bottles of this class. The medium-size bottle of defendants was of a like shape and had upon it somewhat similar labels and legends. The defendants discontinued the sale of bottles of this class after the injunction, but they made and sold three other sizes, one called the trial size, containing Egyptian cologne, another size containing Geranium cologne, and another size called Dime cologne. The bottles, labels, etc., of each of these sizes resembled the bottles of the sizes before mentioned, save that on the two smaller sizes the engraved picture of the Sphinx and pyramid did not appear. The packages in which the defendants’ bottles were packed closely resembled the packages of the plaintiffs. Upon bis findings of fact, the master made the following report: The case, as made by the findings of fact, is that the plaintiffs have, by.their energy, industry, and liberal expenditure of money, secured a large sale in the United States for cologne of their own manufacture, put up in bottles of their own devising and of peculiar shape, with labels printed in an original combination of colors, packed in a distinctive manner, sold under the name of Hoyt’s German Cologne, and known iza the trade by that name, and also by the name of Hoyt’s Cologne. The defendants have been and'are manufacturing and selling cologne, and they have intentionally imitated the plaintiffs’ bottles, labels, and method of packing, and have thereby put themselves in the position of selling as goods of the plaintiffs’ manufacture, goods which are really of their own manufacture; and they have thereby appropriated to themselves the benefit of the plaintiffs’ advertising and business reputation. Upon 'these facts, the plaintiffs pray an injunction to restrain the defendauts from the use of the word “ Hoyt’s ” in their labels and advertisements, and from selling or disposing’ of any cologne in bottles imitative of the plaintiffs’ bottles. The plaintiffs also pray an account of the defendants’ sales, and a decree for payment to them of such amount as may be found due. The defendants deny any imitation of the plaintiffs’ goods, either in intention or in fact, but the master has been compelled to find as a fact that they have intentionally imitated the plaintiffs’ bottles, labels, and mode of packing. The master quotes, as the best expression of the law as applicable to the facts of this case, the following extracts from the judgment of the learned president judge of the court: “In the leading case of Croft v. Day, 7 Beav. 84, Cox, 40, it was well said by Lord Langdale : ‘ It is perfectly manifest that two things are required for the accomplishment of a fraud such as is here contemplated. First, there must be a general resemblance of the forms, words, symbols, and accompaniments to mislead the public; and, secondly, a distinctive individuality must be preserved so as to procure for himself the benefit of that deception which the general resemblance is calculated to produce.’ In McLean v. Fleming, 96 U. S. 245, it was held by the Supreme Court of the United States that to constitute an infringement exact similitude is not required. All that is necessary to show is that the imitation is such that purchasers are likely to be deceived by the resemblances. It is no answer that in certain particulars the defendants’ marks differ from the plaintiffs’, so long as the imitation in other respects is so apparent that purchasers have been and are likely to be deceived: Brown v. Mercer, Sebastian’s Digest, case 435. The imitation need not be exact and perfect. It may embrace variations that a comparison would instantly disclose: Cook v. Starkweather, Idem, case 395. And so in our own cases of Wamsutta Mills v. Allen, 12 Phila. 535, and Colton v. Thomas, 7 Phila. 257: ‘ An imitation with partial differences, such as the public would not observe, does as much harm as an entire corrnterpart. If such variations impose on a portion or class of customers only, it is evident that the damage is of the same character, though varied in amount or degree; ’ per Allison, P. J. In that case, it is not necessary that the imitation should be such as to deceive a person accurately scrutinizing it. It is sufficient if it is done with the intention of deceiving any class of purchasers: Hennessy v. Hogan, Cox, case 651. ‘ Whether a person has or has not a property in the name or mark, I have no doubt that another person has not the right to use that name or mark for the purpose of deception, in order to attract to himself that course of trade which without that improper act would have flowed to the person who first used it: ’ Per Lord Lang-Dale, M.R., in Perry v. Trufitt, 6 Beav. 66, Cox, 73...... The exact imitation is not requisite to entitle plaintiff to his remedy. Amoskeag Co. v. Spear, 2 Sandf. 599; Barrows v. Knight, 6 R. I. 434 (78 Am. Dec. 452); Bradley v. Norton, 33 Conn. 157 (87 Am. Dec. 200). It would be a mistake to suppose that the resemblance must be such as would deceive persons who should see the two marks side by side. The rule so. restricted would be of no practicable use: Seixo v. Provenzende, L. R. 1 Ch. 192; Seb. Dig., case 256. ‘Though no one particular mark is exactly imitated, the combination is very similar and likely to deceive; ’ Injunction granted: Abbott v. Bakers’ and Confectioners’ Tea Ass’n, Seb. Dig., case 379. It is not necessary that the intention should be to deceive persons who carefully examine. The old ruling, that the imitation must be such as to deceive a person paying ordinary attention, has been long abandoned. The law now is that it is enough that there is a class of customers who examine so carelessly that they would be deceived by the resemblance between the two: Hennessy v. White, Seb. Dig., case 650. Said Stowell, C. J., in that case, ‘ We were invited to consider the arm and battle-axe on the defendant’s label, and, because it was not adopted by the appellant, to disregard all other matters as of no importance. But this is precisely the course which the courts have carefully avoided, namely, selecting any one or more matters either of resemblance or difference, and considering them essential, or attempting to define a priori what might or might not constitute an improper imitation by one person of the manufacture of another, for such a course would manifestly offer inducements to fraud. Persons so disposed would then endeavor to avoid the one or more objectionable points, but yet so present the particular article for sale as to impose on the unwary, who accept as sufficient proof of genuineness a resemblance in the main without closely examining details.’ And this case furnishes a complete answer in the present case to the argument founded on the presence of the Sphinx and pyramid on the defendants’ label, and its absence from that of the plaintiffs. Substitute for ‘ arm and battle-axe ’ Sphinx and pyramid, and we have here the case of Hennessy v. White over again. Whatever differences may have been introduced, the fact remains that by the arts resorted to, the defendants have produced such a general resemblance in the main between their wares and those of the plaintiffs, that many people are liable to be deceived thereby, and to buy the defendants’ goods under the belief that they are getting those of the plaintiffs. In our opinion, it is in the highest degree improbable that these resemblances are fortuitous. Everything indicates that they are the result of a deliberate design to imitate the plaintiffs’ goods, and this inference is strengthened by other facts in the case. The defendants have not only imitated the plaintiffs’ bottles, but also the pictorial cards and advertisements used by the plaintiffs, and even the wooden boxes in which the bottles are packed.” The defendants also sot up as a defence that the distinctive word of the plaintiffs’ trade-mark is “ German,” and is intended by the plaintiffs to give the impression that their cologne is imported from Germany. It is true that it is an equitable maxim, “ that he who comes into equity, must come with clean hands,” and therefore, as Shartswood, J., said in Palmer v. Harris, 60 Pa. 160, “ the party who attempts to deceive the public by the use of a trademark which contains on its face a falsehood as to the place where his goods are manufactured, in order to have the benefit of the reputation which such goods have acquired in the market, can have no claim to the extraordinary interposition of a tribunal constituted to administer equity.” See also Pidding v. How, 8 Sim. 477; Flavel v. Harrison, 10 Hare 467. But the facts of this case do not bring the plaintiffs within this rule. Each of their labels contains, in conspicuous type, the words, “ E. W. Hoyt & Co., Proprietors, Lowell, Mass,” and there is not one word in the plaintiffs’ advertisements or labels which represents their cologne to be of German manufacture, unless such a representation can be held to be implied from the use of the word “ German.” Upon this point, the president judge of the court said, in deciding the motion for the special injunction, “that it would be as fair to presume that when a person advertised Venetian blinds he intends that the public should understand that the article is made in Venice, or that the defendants, in calling their article cologne, intend to pass it off as an article made in the city on the Rhine which gives it its name. There can be no just inference of a fraudulent intent from the use of such a designation, particularly when a manufacturer, as here, puts his name and the place of manufacture upon the bottle he uses.” It does not affect the question that some unintelligent persons have bought the plaintiffs’ cologne under the mistaken impression that that cologne was manufactured in and imported from Germany, for the mistakes of such purchasers were not based upon any acts or words of the plaintiffs, and the legal test is, have or have not the plaintiffs so acted as to deceive purchasers of average intelligence? Tried by this test, the plaintiffs must be held blameless upon this point. The general doctrine upon which equity acts in cases'of this nature is, as stated by Langdaub, M. R., in Perry v. Trufitt, 6 Beav. 66, that “ a man is mot to sell his own goods under the pretext that they are the goods of another man; he cannot be permitted to practice such a deception, nor to use the means which contribute to that end. He cannot therefore be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person.” Reference need only be made to the authorities quoted by the president judge of the court, in his judgment granting the special injunction; and, under the view of the law there stated, and upon the facts found by the master, it must inevitably be held that the plaintiffs are clearly entitled to an injunction restraining the defendants from putting up and offering for sale cologne in the bottles described in the bill with the labels therein complained of, and that the plaintiffs are entitled also to a decree for an account. The plaintiffs also ask upon the proofs for an injunction to restrain the defendants from the use of the word “ Hoyt’s ” in their labels and advertisements in connection with the sale and manufacture of cologne, and the defendants contend that the plaintiffs are not entitled to any right of property as a trademark in the word “ Hoyt’s,” and therefore that the defendants cannot be restrained from selling cologne of their own manufacture as “ Hoyt’s Cologne.” Upon this point, the president judge of the court said in his judgment, before referred to : “ Every man has the right to put his name upon goods of his own manufacture. No single manufacturer can arrogate to himself the exclusive use of a name which lie shares in common with other persons. As against persons bearing a different name, a manufacturer’s right in his name trade-mark is absolute and exclusive, but as against persons bearing the same name, no such exclusive right can be set up. This point is settled by a multitude of cases. Nevertheless, it is well settled that if a manufacturer combines his name with marks and symbols which are a colorable imitation of the marks and symbols of another person of the same name, so as to confuse his own goods with those of another manufacturer, in such a manner as to be calculated to deceive the public, he will be enjoined from so doing. A person will not be allowed to use his own name in such a maimer as to represent his goods to be those of another person of the same name: McLean v. Fleming, 96 U. S. 245. As was said by Daly, J., in the case of England v. New York Co., 8 Daly 375: ‘ The test is whether he uses the name honestly and fairly, or dishonestly, to palm off his own conimodity as the production of another.’ ” At the hearing of the motion for the special injunction, the court held that the defendants could not be enjoined from the use of the name “ Hoyt’s ” upon their cologne. But the case before the master is much stronger for the plaintiffs upon this point, than that presented to the court on the motion for the injunction. It has been found that the plaintiffs have acquired for their cologne a trade designation of which the word “ Hoyt’s ” is an essential and integral part. It must also be remembered that the defendants’ firm name is not “ Hoyt’s ” but F. Hoyt & Co., Frank Hoyt and Walter Rube having formed a partnership under that firm name. If they designated their cologne in their advertisements and upon their bottles and labels “ F. Hoyt & Co.’s Cologne,” those labels and advertisements would speak the truth; but the fact that one partner in the firm bears rightfully the name of Frank Hoyt does not entitle the firm to put upon their bottles, labels and advertisements, the designation “ Hoyt’s,” when the word “ Hoyt’s ” is an integral part of a trade designation in which the plaintiffs have rightfully acquired a prior and exclusive property. In fact, the word “ Hoyt’s ” was never used by the defendants until after they had entered upon their course of imitating the plaintiffs’ goods; and the word “ Hoyt’s ” has been and is now used by the defendants in connection with bottles, labels, and a mode of packing, which has been intentionally adopted by the defendants in imitation of the plaintiffs’ bottles, labels, and mode of packing. The case is therefore brought within the rule of law as laid down by the president judge in the extract quoted from his judgment, and the authorities cited by him conclusively determine the right of the plaintiffs to a decree restraining the defendants from using the word “ Hoyt’s.” The master is therefore compelled to hold that while the defendants are entitled to use their firm name, “F. Hoyt & Co.,” in their advertisements and labels, they cannot be permitted to use the word “ Hoyt’s ” without prefix, for the reason that that word has been antecedently and rightfully appropriated by the plaintiffs as an integral part of the designation of their goods, and the continued use of that word by the defendants would be a fraud upon the plaintiffs. The master annexes hereto a form of decree. —The defendants filed a large number of exceptions to the master’s report. Said exceptions having been overruled by the master and argued before the court in banc, they were dismissed, without opinion filed, and on January 27, 1890, the following decree was made: That a writ of injunction issue restraining the defendants, etc., 1. From putting up, or selling, or exposing for sale, or offering for sale, cologne in such bottles as are in the plaintiffs’ bill described as the plaintiffs’ bottles, or in bottles resembling the plaintiffs’ bottles, with cap labels, or front labels, as described in the plaintiffs’ bill, or otherwise imitative of the plaintiffs’ labels.35 2. From using the word “ Hoyt’s ” as the initial word of the description of their cologne upon any advertisement, label or bottles of any cologne offered or exposed for sale by them or either of them.36 3. From putting up, or selling, or exposing for sale, or offeriug for sale, cologne in any boxes or bottles, or with any labels simulating or imitating the plaintiffs’ bottles, boxes or labels.37 4. That an account be taken of the defendants’ sales of cologne as made in boxes or bottles, or with labels imitating the plaintiffs’ boxes, bottles and labels; and the defendants are hereby ordered to pay to the plaintiffs such sums of money as by the said account shall be found to be due and payable by them.38 And on March 29, 1890, a further decree was entered for $2,500 against the defendants and in favor of the plaintiffs, with costs to plaintiffs in the sum of $1,750, “as if that amount had been proven and taxed.” 39 —Thereupon the defendants took this appeal, assigning for error: 1-34. The dismissal of defendants’ exceptions. 35-39. The sections of the final decree entered.35 to 39
143 Pa. 642City of Titusville v. Brennan (1891)
No. 121 July Term 1890, Sup. Ct.; court below, No. 26 September Term 1889, C. P To the number and term stated of the court below, there was entered by appeal of the defendant from the judgment of the city recorder of the city of Titusville, an action brought by said city against J. W. Brennan, to recover a penalty for the violation of a city ordinance. Certain testimony, certified by the city recorder as taken' before him, and a deposition of J. A. Shepard, taken before a commissioner at Chicago, having been placed on file, it was agreed by counsel in writing, that the facts appearing in the testimony on the record were “ the facts in the case, and that the cause should be submitted to the court as upon a case stated, and argued without a jury.” Subsequently the following case stated, setting forth the agreed facts, was placed on file: “1. J. A. Shepard is a manufacturer of picture frames and maker of portraits, residing in Chicago, in the state of Illinois, of which state he is a citizen, and in which city he has his manufactory and place of business. “ 2. In the prosecution of said business he employs agents, who, under his direction, solicit orders for pictures and picture frames, in the state of Pennsylvania and other states of the Union, by going personally to residents and citizens of said state of Pennsylvania, and other states, and exhibiting samples of his pictures and frames; going, where necessary, from house to house in said state of Pennsylvania and other states. “ 3. The defendant, J. W. Brennan, was an agent of the said J. A. Shepard, employed by him to travel and solicit order's for pictures and frames in the manner stated, upon a salary and also upon commission upon the amount of his sales, at the time of his arrest, May 25, 1889, upon a warrant issued by the authorities of the city of Titusville, in the state of Pennsylvania. “ 4. Upon receiving orders for pictures and picture frames, the agents of the said J. A. Shepard forwarded the same to him at Chicago, in the state of Illinois, where the same were made and from there shipped by- said J. A. Shepard to the purchasers in Titusville, in the state of Pennsylvania, by railroad, freight, and express; and the price of said goods was collected and forwarded by the express companies, and sometimes by the agents, to said Shepard, at Chicago, in the state of Illinois. J. W. Brennan, the agent employed by J. A. Shepard, was engaged in conducting the business in the manner stated at the time of his arrest, May 25, 1889. The said J. W. Brennan, at the time of his arrest and before, had not been otherwise employed than as stated, and was acting solely for the said Shepard. “5. The city of Titusville had enacted an ordinance, in force at the date of the arrest of said J. W. Brennan, which, in the twelfth section thereof, provides in words and figures as follows: “ ‘ That all persons canvassing or soliciting within said city orders for goods, books, paintings, wares or merchandise of any kind, or persons delivering such articles under orders so obtained or solicited, shall be required to procure from the mayor a license to transact said business, and shall pay to the said treasurer therefor the following sums, according to the time for which said license shall be granted, viz.: For one day, one dollar and fifty cents; one week, five dollars; three months, ten dollars; one year, twenty-five dollars; provided, that the provisions of this ordinance shall not apply to persons selling by sample to manufacturers or licensed merchants, or dealers residing or doing business in said city.’ “ And the said ordinance further provides in the eighteenth section thereof as follows: ‘ That any person or persons failing to obtain a license as required by this ordinance shall, upon conviction thereof before any magistrate, alderman or justice of the peace of said city, forfeit and pay a fine not exceeding one hundred dollars, nor less than the amount required for a license to such person or persons, together with twenty per cent added as a penalty, with costs of suit, and in default of payment thereof shall undergo a confinement in the city or county prison for a period not exceeding ninety days, or perform hard labor on the streets or elsewhere in said city, not exceeding such period.’ “6. At the time of his arrest the defendant Brennan, was not and had not been selling by sample to manufacturers or licensed merchants or dealers residing in said city of Titusville, and was not within the proviso of the twelfth section of said ordinance relating to such excepted persons. “ 7. The defendant, J. W. Brennan, at the time of his arrest, had not obtained a license as required by said ordinance, and had not paid to the treasurer of the city of Titusville the license fee provided by said ordinance. “ 8. The defendant was arrested, tried, convicted and sentenced to pay a fine of twenty-five dollars and costs of suit, under said ordinance, on the twenty-ninth day of May, 1889, before W. M. Dame, city recorder of the city of Titusville. “ If the court should' be of opinion, upon the facts stated, that the defendant, J. W. Brennan, was liable to take out a license and pay the license fee provided by said ordinance, then judgment to be entered for the plaintiff, the city of Titus-ville, for twenty-five dollars and costs of suit. If the court should be of opinion that said Brennan was not so liable, then judgment to be entered for the defendant, with costs of suit.” After argument, the court, Henderson, P., J. citing Warren Bor. v. Geer, 117 Pa. 207, and adjudging that the defendant was guilty of hawking and peddling in the city of Titusville without a license, entered judgment for the plaintiff, on the case stated, for twenty-five dollars and costs of suit. Thereupon, the defendant took this appeal, specifying that the court erred in entering judgment for the plaintiff upon the facts agreed upon in the case stated, shown by the evidence, and found by the court.