157 Pa.

Volume 157 — Pennsylvania State Reports

76 opinions

157 Pa. 1Zeller v. Henry (1893)Rule discharged
Appeal, No 327, Jan. T., 1892, by-Daniel W. Zeller, judgment creditor, from order of C. P. Lebanon Co., Jan. T., 1885, No. 71, Henry v. Light, discharging rule to mark judgment to use. Rule for s-ubrogation. Before McPherson, J. From the record.,’ it appeared that in 1878 Beuben L. Light and Susanna Light his wife owned a farm of one hundred and twenty-three acres in Lebanon county. The husband owned one seventh and the wife six sevenths of the land. On April 3, 1878, Reuben and his wife joined in a mortgage of the entire farm to Christian Henry, to secure the sum of $2,000, a debt of the husband. This mortgage was the first lien on the land. On July 24, 1884, John H. Uhler obtained judgment against Reuben L. Light. On this judgment a fi. fa. was issued, the interest of Light in the farm condemned, a ven. ex. issued and his interest exposed to public sale, at which sale notice was given that there was a mortgage, a first lien upon the farm, for $2,000, jointly executed by husband and wife, for the debt of the husband, and that the wife was surety for the husband. Zeller bought the interest of Light for $2,500, and received a deed from the sheriff on Nov. 13, 1884. Zeller offered to pay the mortgage debt and interest to the mortgagee, if he would assign the mortgage to him, which he refused to do, but on Dec. 12, 1884, issued a sci. fa. sur mortgage, and on Dec. 16, 1884, Reuben L. Light and Susanna, his wife, jointly confessed judgment de terris for the sum of $2,135 and costs, and the mortgagee issued a lev. fa., under which the sheriff advertised that he would expose to public sale, on Jan. 13, 1885, the interest of Reuben L. Light. On the day of sale, just previous to the sale, Zeller paid to the sheriff the whole mortgage debt, interest and costs, amounting to $2,184.95, in order to prevent the sale of his interest in the land. On Jan. 14, 1885, Zeller presented his petition to the court for subrogation to the rights of the mortgagee, in order that his cotenant might be made to contribute her share of the mortgage money. A rule was issued to show cause, etc., and an answer filed by Light and his wife, denying the right to subrogation because the wife was the surety of the husband, and that Zeller had purchased with notice of that fact. Christian Henry, in writing, agreed not to enter satisfaction on the mortgage or j idgment obtained thereon until the court so ordered. Error assigned was order discharging rule. Bryar’s Ap., 111 Pa. 81; Tichenor v. Dodd, 3 Green Ch. 454; Calkins v. Munsel, 2 Root, 333; Eiceman v. Finch, 79 Ind. 511; Wager v. Chew, 15 Pa. 323; Watson’s Ap., 90 Pa. 426; Gearhart v. Jordan, 11 Pa. 325; Ryer v. Gass, 130 Mass. 227 ; Brown v. Lapham, 3 Cush. 551; Gibson v. Crehore, 3 Pick. 475; Hinds v. Ballou, 44 N. H. 619; Leavitt v. Pratt, 53 Maine, 147 ; Carpenter v. Koons, 20 Pa. 222; Cooley’s Ap., 1 Grant, 401; Hansell v. Lutz, 20 Pa. 284; Mevey’s Ap., 4 Pa. 80 ; Fisher v. Clyde, 1 W. & S. 544; Wright v. Knepper, 1 Pa. 361; Koons v. Hartman, 7 Watts, 20; Sheidle v. Weishlee, 16 Pa. 134 ; Johns v. Reardon, 11 Md. 465; Miller’s Ap., 119 Pa. 620; 15 A. & E. Enc. L. 864. Dollar Savings Bank v. Burns, 87 Pa. 491; Bryar’s Ap., 111 Pa. 81; Cooley’s Ap., 1 Grant, 401; Hansell v. Lutz, 20 Pa. 284; Sheidle v. Weishlee, 16 Pa. 134; Bispham’s Eq., 2d ed. § 342.
157 Pa. 5Pottsville Lumber Co. v. Wells (1893)Plaintiff appealed
Appeal, No. 76, Jan. T., 1893, by plaintiff, from judgment of C. P. Schuylkill Co., May T., 1891, No. 402, on verdict for defendant William B. Wells, executor of Christina Pott, deceased, and Andrew Comrey, sheriff. Replevin for lumber seized under landlord’s warrant. At the trial, before Pershing, P. J., it appeared that, on Feb. 14, 1872, Christina Pott conveyed to William Buechley a lot of ground in the borough of Pottsville. The purchase money was secured by mortgage. On Aug. 2, 1880, judgment was entered against William Buechley on a sci. fa. on the mortgage. This was followed by a lev. fa. and sale of the property on Sept. 11, 1880, to William B. Wells, executor of Christina Pott. A sheriff’s deed was subsequently made. After the sale Mr. WTells leased a part of the property to the Potts-ville Lumber Co., Limited. Taxes were assessed in 1880, against the property, and on June 12, 1882, the property was sold for the taxes and bid in by tbe county commissioners. On March 16, 1888, the commissioners sold the land to A. B. McCool, who in turn conveyed it to the wife of William Buechley, who it was alleged held it for the Pottsville Lumber Co., Limited. It appeared from the evidence that, shortly before the sale for taxes, Mr. Wells went to the treasurer’s office for the express purpose of paying all overdue taxes on the property and thus preventing a sale ; that, after explaining his business, he requested a statement of such taxes and paid all taxes demanded from him by the treasurer. The court charged in part as follows : “ The defendant here claims that he was misled when he went to the treasurer for the purpose of payin'g all the taxes upon the land to prevent its sale. In connection with that you have heard the evidence as to its being assessed in different wards. So far as our own notes go, and we think we have taken it down correctly, the property was assessed in 1871 in the proper ward, the northeast ward. Subsequently Mr. Buechley lived in different wards, and the property was afterwards assessed, sometimes in the southeast ward and sometimes in the middle ward. Question has been made here as to whether such an assessment was legal, whether it must not be made in the ward and for the ward in which the property is located, and question has been raised as to the legality of the sale, in view of the efforts which Mr. Wells alleges he made in order to pay the taxes and prevent .the sale of the property, whether or not he was misled, and whether the treasurer was to blame for the fact that the land was not redeemed. These and other questions, some of them we confess a little perplexing to our mind just now, we need not discuss, because the case in our judgment turns upon another question, the first question suggested by the points of the defendant. “ [It is claimed that as this purchase money mortgage had been in existence from 1872 to 1880, constituting the first lien, the taxes assessed in 1880 and which were in existence and unpaid at the time of the sale upon the mortgage, were discharged by that sale ; and we so instruct you. That the sale upon the mortgage discharged the taxes so far as the property was concerned; and, if so, then the treasurer’s sale two years afterward, in 1882, would convey no title to the county, and the county commissioners’ sale of it afterwards in 1888 would convey no title to A. B. McCool, and that therefore your verdict must be for the defendant.] ” [1] “ In finding a verdict for the defendant it will be your duty to ascertain and fix the amount of rent due at the time the sheriff seized this lumber for the purpose of paying the rent by its sale. There is no dispute, I understand, between the parties, nothing to contradict it.at least, that the rent was $125 a year, and that up to the time this landlord’s warrant was issued there was three years’ rent due Jan. 1, 1891, and $125 a year would make $875 rent due at that time. To this the authorities say a jury may add interest from the date of the seizure of the property for the payment of the rent. You must also find the value of the property seized under the landlord’s warrant. It is agreed that it was worth $500, and there is no other evidence upon the subject. “ [We say to you, therefore, that, affirming this point, you must necessarily find for the defendant; also find how much rent was due and unpaid at the time the landlord’s warrant was issued and he levied upon this lumber, and also the value of the lumber.] ” [2] Verdict and judgment for defendants for $352.62. Errors assigned were (1, 2) above instructions, quoting them. Acts of April 29, 1844, P. L. 501; May 13,1879, P. L. 55 ; 3 Triekett, Liens, 440; Brigg’s Ap., 38 Leg. Int. 262 ; Bergwin v. Birchfield, 28 Pitts. L. J. 13; Burd v. Ramsay, 9 S. & R. 109; Evan’s Est., 2 Woodward, 166; Ellis v. Hall, 19 Pa. 292; Kennedy v. Daily, C Watts, 269; Sheaffer v. McCabe, 2 Watts, 421; Harrisburg v. Orth, 2 Pearson, 340 ; Cohen’s Ap., 10 W. N. 230; Plunkett v. Maguire, 2 Pearson, 273; Smeich v. York Co., 68 Pa. 439 ; Henry v. Horstick, 9 Watts, 413 ; McGregor v. Montgomery, 4 Pa. 237; Caldwell v. Moore, 11 Pa. 58 ; Lacy v. Green, 84 Pa. 514; Act of June 2, 1881, P. L. 45 ; Miller v. Cunningham, 7 Pa. C. C. R. 500 ; Townsend v. Wilson, 7 Pa. C. C. R. 101; Com. v. Patton, 88 Pa. 258; Davis v. Clark, 106 Pa. 384; Scranton v. Silkman, 113 Pa. 191; Morrison v. Bachert, 112 Pa. 322; Ayars’s Ap., 122 Pa. 266. Act of 1867, P. L. 44; Fisher v. Connard, 100 Pa. 68 ; Dietrick v. Mason, 57 Pa. 40; Breisch v. Coxe, 81 Pa. 336.
157 Pa. 13Commonwealth v. Hollister (1893)
Appeal, No. 96, July T., 1892, by defendant, Herschel H. Hollister, from judgment of O. & T. Lackawanna Co., Dec. T., 1891, No. 2, on verdict of guilty. Indictment for larceny, etc. Before Archbald, P. J. Tbe facts and assignments of error appear by the opinion of tbe Supreme Court. Brown was Spencer’s agent, and the custody of the money by Brown was the possession of Spencer: Bass’s Case, Leach’s Crown L., 1st ed., p. 242. Appellant acted through Engle and Snow as well as through Brown. Whatever Engle and Snow did appellant did. A person acting as detective is not an accessory before the fact to the commission of a crime, although he caused and encouraged its commission: Campbell v. Com., 84 Pa. 187; State v. McKean, 36 Iowa, 343; 1 Greenleaf on Evidence, § 382.
157 Pa. 17Drake v. Lacoe (1893)Plaintiffs’ exceptions were dismissed, defendants’…
Appeal, No. 133, Jan. T., 1893, by plaintiffs, Thomas Drake et al., from decree of C. P. Lackawanna Co., Nov. T., 1888, No. 3, dismissing bill in equity against R. D. Lacoe, J. B. Shiffer and John Jermyn, defendants. Bill in equity for account and for forfeiture of coal lease. The case was referred to W. W. Lathrope, Esq., as master, who reported the facts and conclusions of law as follows : “ 1. By an indenture of mining lease, dated the 28th day of November, 1863, and recorded, Charles Drake, then the owner of the 78 acres of land described in the plaintiff’s bill, did lease and let unto Ralph D. Lacoe and J. B. Shiffer, defendants, all the coal in said land, except the upper vein. “ 2. The habendum clause in said lease is as follows: ‘ To have and to hold the same to the said parties of the second part, their heirs, executors, administrators and assigns, for the term and period of ten years, and for such other and further time as the parties of the second part and their legal representatives shall continue to pay the rent, as named in this instrument, unless the time is sooner ended by nonpayment of rent as hereinafter provided for.’ “ And there is also contained in said lease a stipulation in the words following, to wit: ‘ And it is further understood and agreed that if at any time an instalment of rent shall become due and remain unpaid for the space of six months, in that case the term of this lease shall be at an end, and the rights and liabilities of the lessees and their legal representatives and assigns under this instrument, either at law or in equity, shall absolutely cease and be determined, and the party of the first part may thereupon resume possession of said premises, aud of all the permanent improvements thereon.’ “ 3. By an assignment in writing dated 27th February, 1865, and recorded, said Lacoe and Shiffer, defendants, transferred their rights under said lease to James Ritchie and Hugh W. Green. “ 4. By an indenture of mining lease, dated the 13th day of April, 1865, and recorded, the said Charles Drake did lease and let unto the Massachusetts Coal Company, all the coal reserved in the above recited lease to Lacoe and Shiffer, to wit, the upper vein of coal in the land aforesaid; in consideration whereof the said company covenanted and agreed to pay the said Charles Drake, semi-annually, a rent or royalty of ten cents per ton, miners’ weight, on all merchantable coal mined from said vein on the said land, and also to deliver to said Drake, his heirs or assigns, free of cost, fifty tons of lump or prepared coal as he might elect, annually for each and every year during which said company should work said vein of coal. “ 5. The said last recited lease contains this stipulation, to wit: ‘ And it is further agreed that this lease shall be subject to the provisions in the lease from said Drake to Lacoe and Shiffer, so far as it relates to its continuance, the payment of taxes and the inspection of books, as well as in the conducting of the mining operations in a workmanlike manner.’ “ 6. There is nothing contained in the lease last recited requiring the lessee to mine by any special process. “7. By an assignment in writing, dated 21st August, 1865, and recorded, James Ritchie and Hugh M. Green, assignees of Lacoe and Shiffer, as set forth in the third finding of fact, transferred to the Massachusetts Coal Companjr aforesaid, all their rights in the first lease. “ 8. By deed dated the 1st day of November, 1869, and duty-recorded, the Massachusetts Coal Company conveyed unto R. D. Lacoe, one of the defendants, all their rights in the said 78 acres of land, and also all their rights under the two mining leases above .recited. In some way that does not appear, J. B. Shiffer, another of the defendants, acquired part of the leasehold rights vested by said conveyance in R. D. Lacoe. “9. By an indenture of mining lease dated 25th May, 1871, and recorded, R. D. Lacoe and J. B. Shiffer, defendants, together with O. F. Gaines, did sublet all the coal aforesaid, together with coal under other lands, to the Glenwood Coal Company, who continued in possession until 1877, when their property was sold at sheriff’s sale. “ 10. Said Lacoe and Shiffer, defendants, again acquired title to said leasehold rights, and by lease dated April 1st, 1887, sublet the same to John Jermyn, also named as a defendant, and Joseph J. Jermyn, who are now in possession of the premises. “ 11. The said Charles Drake died on the 21st day of February, 1873, leaving a will by which he gave his residuary estate, including the land aforesaid, to his four sons, Ebenezer Drake, Thomas Drake, George K. Drake and Lyman Drake, the plaintiffs. The interest of said Lyman Drake in said land and leases was sold by the sheriff and conveyed to said R. D. Lacoe by deed dated 10th May, 1879, and by said Lacoe conveyed to M. W. Morris and Isaac Everitt, who are named in the bill as use parties. “12. During the years 1871, 1872, 1874, 1875 and 1876, while the Glenwood Coal Company were in possession of said premises, under the lease to them from the defendants, Lacoe and Shiffer, the said company mined from the upper vein aforesaid 27,868 tons and 12 cwt. of coal, for which no payment has been made to, Charles Drake, or to his devisees, or legal representatives, or to any of the plaintiffs. [“ 13. Full statements of the coal thus mined were rendered by the defendants, Lacoe and Shiffer, to Charles Drake in his lifetime, and afterward to the plaintiffs, or to some of them. No objection as to their accuracy was made until shortly before the bringing of this suit. The objection then made was that while they showed the number of tons of prepared coal, they did not show the number of tons, 4 miners’ weight,’ as called for by the lease. The amount of coal which the plaintiffs have stated in their bill as mined from their property, they obtained from the statements furnished them as aforesaid.] [2] [“ 14. Under all the evidence, the phrase, ‘ miners’ weight,’ in 1863, and during the years when the said coal was mined by the Glenwood Coal Company, meant such quantity of coal, slate and dirt, as was agreed upon between the operators and the miners to be sufficient to make a ton of prepared coal.] [3] “ 15. No coal has been mined by the defendants, or their predecessors in title, from the lower veins, under the first lease, excepting about 767 tons, and none from the upper vein embraced in the second lease, excepting the 27,868 tons 12 cwt. aforesaid. “ 16. From the date of the first lease, to wit: Nov. 28, 1863, until the time of ¡filing the bill in this case, the full minimum royalty provided in said lease, to wit ¡$500 per annum, was paid. The aggregate amount of these payments is such, and at all times has been such, as to exceed the royalties for all coal actually mined under both leases, were they so applied. “ 17. Prior to October 1, 1880, receipts were given by the plaintiffs for the minimum royalties payable under the first lease, but no receipt was given for royalties on coal mined from the upper vein under the second lease, unless a receipt given April 9, 1875, be so construed. The receipt is in the words following : “ ‘ Old Forge, April 9,1875. 44 ‘ Received of R. D. Lacoe, two hundred and fifty dollars, being for the twenty-second semi-annual payment of lease of coal, dated Nov. 28, 1863, given to Shiffer & Lacoe, and supplement given to Massachusetts Coal Company. “ 4 $250.00 E. Drake, Exetor.’ 4418. On February 18, 1880, a written agreement was entered into between Thomas Drake, Ebenezer Drake and George K. Drake, plaintiffs, and R. D. Lacoe (defendant), vendee of Lyman K. Drake, of the one part, and R. D. Lacoe and J. B. Shiffer (defendants), of the other part, reciting the two leases aforesaid, and stipulating that coal from other properties might be mined through the land of the parties of the first part, and granting the use of a portion of the surface for depositing culm, etc. Nothing is said in this agreement about coal royalties. “19. On the same day, February 18, 1880, Thomas Drake, one of the plaintiffs, told R. D. Lacoe, one of the defendants, that they, the plaintiffs, had not been paid for the coal mined from the upper vein. “ 20. After October 1, 1880, down to October, 1887, the semi-annual installments of the minimum royalty, payable under the first lease, were generally receipted for as applying on said first lease, ‘ and the supplement and modification thereof,’ or ‘ the supplements thereto,’ or ‘ the supplementary agreements thereto.” One receipt was as follows : “ ‘ Received, Old Forge, April 15,1885, of R. D. Lacoe One Hundred and Eighty-Seven 50-100 Dollars, being the portions of Ebenezer Drake (62.50), George K. Drake (62.50), and Thomas Drake (62.50), in installment of rent due April 1st, 1885, on lease made by Charles Drake in his lifetime to R. D. Lacoe and J. B. Shiffer, and to the Massachusetts Coal Company, now assigned to Lacoe and Shiffer, being in full of rent to April 1st, 1885, on said leases and supplementary agreements.’ Signed by Ebenezer Drake, George K. Drake and Thomas Drake. “ One receipt, however, given during this period, to wit, 30th April, 1883, was for coal royalty on the first lease, without reference to the other lease or to any supplementary agreement. “ 21. There is no evidence, other than that of the receipts just mentioned, that the two leases were treated as one, or that the second one was merged in the first, or that the minimum royalty provided in the first lease was applicable to the coal mined under both leases; and the evidence is not sufficient to satisfy the master that the plaintiffs ever agreed or intended that the royalty paid should apply on both leases. “ 22. Neither the defendants, Lacoe and Shiffer, nor the Glenwood Coal Company, who possessed and mined the coal under them, have delivered to Charles Drake, or to his heirs or assigns, the full amount of fifty tons of coal per annum, as provided in the lease to the Massachusetts Coal Company, dated 18th April, 1865. Soon after the lease by Lacoe and Shifter to the Glenwood Coal Company was executed, an order was drawn and delivered to Charles Drake, of which the following is a copy: ‘“Scranton, Jan. 20,1872. “ ‘ Glenwood Coal Company please furnish Charles Drake, Esq., fifty tons of coal per year to commence October 1st, 1871, in satisfaction of provision of lease from said Drake to the Massachusetts Coal Company, on property now leased to you, and oblige and charge our account. Ii. D. Lacoe, “ ‘ For Lessors to the Glenwood Coal Company. “Endorsed: ‘Accepted. E. Phinney, “ ‘ General Agent.’ “ Some coal was delivered under this order; but bow much the evidence does not show; but tire full amount was not delivered. It does not appear, however, that any complaint was made to defendants until the bringing of this suit.” The master then made a statement of coal mined and of the amounts owing for each six months from October, 1871, computing interest on each item to Oct. 1, 1891. “ Plaintiffs’ 11th request for findings of fact is as follows : “ ‘ [That the plaintiffs are entitled to an account with the defendants for all coal mined from said upper vein, by the miners’ ton, as established by the evidence at the time the contract was made.’ Refused.”] [5] “ The master’s conclusions of law are as follows : “ [1. The plaintiffs are not entitled to a forfeiture of the lease of Charles Drake to the Massachusetts Coal Company, dated April 13, 1865, a copy of which is attached to their bill and marked ‘ Exhibit B.’ Neither the nonpayment of royalty under the circumstances of this case, nor the nondelivery of the fifty tons of coal per annum entitles them to such forfeiture.] [8] “ 2. The construction contended for by the plaintiffs, that what was to be paid for under said lease, was a ton of uncleaned material, is inconsistent with the provision of said lease that the party of the second part should pay the party of the first part a ‘ royalty of ten cents per ton, miners’ weight, on all merchantable coal.’ “ [3. The plaintiffs are not entitled to an account for coal mined and removed from the upper vein. They have received an account, and the evidence as to the meaning of the term ‘ miners’ weight,’ does not show any error in such account.] [9] “4. The plaintiffs are not entitled to an account of the coal delivered and undelivered under the agreement to furnish them fifty tons of coal per annum. “ 5. The lease of April 13, 1865, to the Massachusetts Coal Company has not been merged in the prior lease of November 26, 1863, to the defendants, Lacoe and Shiffer, and the minimum royalty paid under the latter, is not applicable to any coal mined under the former. “ [6. The plaintiffs, Thomas Drake, Ebenezer Drake, George K. Drake and Lyman K. Drake, are entitled to a decree for the payment tó them by the defendants, R. D. Lacoe and J. B. Shiffer, of the royalty on the coal mined from the upper vein, together with interest on the various installments thereof, from the semi-annual periods when such installments were payable.] [10] “ The master therefore recommends: That a decree be made by your Honors, directing the defendants, R. D. Lacoe and J. B. Shiffer, to pay to the plaintiffs, Thomas Drake, Ebenezer Drake, George K. Drake and Lyman K. Drake, the sum of five thousand -three hundred and seventy-three dollars and forty-three cents (§5,373.43), together with interest from October 1, 1891, and also directing the said defendants, R. D. Lacoe and J. B. Shiffer, to pay the costs of this proceeding, and that as to John Jermyn, the other defendant, the bill be dismissed.” “ Both parties have submitted conclusions of law, which they ask the master to find. . . . “ The plaintiffs’ 2d conclusion of law is as follows : “ ‘ [The contract or lease of April, 1865, is forfeited for noncompliance with its terms.’ Answer: This is denied. The .master is satisfied that the terms of the lease have not been complied with. But it must be a very clear case in which a court of equity will enforce a forfeiture.] [6] “ In Oil Creek Railroad Co. v. Atlantic & Great Western Railroad Co., 57 Pa. 72, Mr. Justice Shauswood says, that a court of equity never lends its assistance in the enforcement of a forfeiture. In Funk v. Haldeman, 53 Pa. 229 and 249, Woodward, C. J., says, that equity does not ordinarily enforce forfeitures. And in other states it is held that a court of equity will not enforce a forfeiture : Warner v. Bennett, 31 Conn. 468 and 478 ; White v. Port Huron Railroad Co., 13 Mich. 356. “ Assuming that a court of equity may under certain circumstances enforce a forfeiture, it seems to the master that the right to have the same enforced in the present case has been lost by delay. In Thompson v. Christy, 138 Pa. 230 and 249, it is held that the right to declare a forfeiture must be promptly exercised. “ Furthermore, in the present case new rights have intervened since the right to a forfeiture accrued. The right to such forfeiture accrued in 1872. Whether the plaintiffs, then, or at any time during the mining, knew that coal was being taken from the upper vein under the second lease, does not appear, but it does appear that they knew of it in 1880. In 1887, more than six years afterward, the defendants, Lacoe and Shiffer, sublet the coal to John Jermyn, the other defendant, and Joseph J. Jermyn. The bill in the present case was not filed until 1888. “ In Evans’ Appeal, 81 Pa. 278 and 302, it was held that where parties had full knowledge and where new business arrangements had been made, and other rights had intervened, and the parties had delayed to assert their rights, the delay was fatal. It is true that the case did not involve a forfeiture, but it seems to the master that the reasoning applies to the present case.” “ The defendants’ 8th conclusion of law is as follows : ‘ That the bill fails to aver or set forth any matter or thing relating to “ miners’ weight,” or “ miners’ ton,” and being, therefore, only a bill to recover a specific sum of money, it cannot be sustained.’ Answer: The master cannot affirm this proposition. It is true that the bill fails to set forth anything relating to ‘miners’ weight,’ except so far as it quotes the lease. It is also true that, under the view taken by the master, the plaintiffs’ bill is practically a suit to recover a specific sum of money for which the plaintiffs have their remedy at law. Had this objection been taken to the bill on demurrer before it was amended it might have been sustained; but the defendants having denied the material allegations in the plaintiffs’ bill, and having had a full hearing on the merits, and heavy expense and costs having been incurred, it seems to the master too late to sustain this objection now. “ In The Sunbury & Erie Railroad Co. v. Cooper, 33 Pa. 280, it was held that though a case be not a proper one for an application of an equitable form of remedy, yet if the court has jurisdiction of the cause of action, it may give redress in the equity form, if the defendant does not demur to the form, even though the common law form is the more proper one. “ In Adams’ Appeal, 113 Pa. 449 and 455, it is said, ‘ This question should be determined, not by what may have been shown by the answer of testimony adduced in support thereof, but by what appears on the face of the bill itself. If the averments therein contained, assuming them to be true, present a case of which equity has either concurrent or exclusive jurisdiction, the bill should not have been dismissed, especially in view of the fact that the appellees did not object in limine by plea or otherwise to the jurisdiction of the court. While it is true that manifest want of jurisdiction may be taken advantage of at any stage of the cause, the court will not permit an objection to its jurisdiction to prevail in doubtful cases, after the parties have voluntarily proceeded to a hearing on the merits, but will administer suitable relief.’ “ Apply these principles to the case in hand. The bill, as amended, sets forth that plaintiffs believe that the aggregate number of tons reported in the statements furnished them by the defendants, does not include all the coal miued from the upper vein, and that the number of tons mined has not been ascertained by the weight of the coal as it was brought from the mine in accordance with the terms of the lease, but in violation of said terms. Now, assuming these averments to be true, it cannot be said that there is manifest want of jurisdiction. The most that can be said is that it is a doubtful case. “ In Evans v. Goodwin, 132 Pa. 136 and 146, the court say : ‘ It is true the want of jurisdiction may be taken advantage of at any stage of the proceedings. But this is so only in clear cases when the want of jurisdiction is patent.’ Is it not so here ? The most that can be claimed is that the want of jurisdiction is doubtful. Under such circumstances the defendants should have demurred. This was not done. The defendants conceded the jurisdiction so far as it may be implied from his acquiescence in the reference to a master. After such reference, involving heavy costs, the case should be very clear to justify us in setting the proceedings aside for want of jurisdiction. “ In Niles v. Williams, 24 Conn. 284, it is said that the decisions are uniform and establish the ruling that, on a bill in equity, an objection to the jurisdiction of the court cannot be taken at the hearing. “ And in Nicholson v. Pirn, 5 Ohio State, 32, Chief Justice Kent is quoted as saying: ‘ Admitting the grounds in the first instance not to have been sufficient to have sustained the bill, the respondent comes too late to object to the jurisdiction of the court, after having put in an answer to the merits of the case. By answering in chief, instead of demurring, he submitted his defence to the cognizance of the court.’ The ruling thus quoted, was followed by the Supreme Court of Ohio. “ In the present case the defendants have submitted to the jurisdiction of a court in equity, and have had a full hearing on the merits. In the master’s opinion they have failed to establish a complete defence. A large mass of testimony has been taken, and heavy costs have been incurred. While the evidence, as the master views it, does not entitle the plaintiffs to an account, because that has been already rendered, yet it seems clear to him that the plaintiffs are entitled to be paid for the coal mined from the upper vein. It is just and equitable that they should be paid. Therefore, as hereinafter stated, the master recommends a decree for such payment.” “ Defendants’ 12th conclusion of law is as follows : “ ‘ [That as matter of law the evidence as to the meaning of “ miners’ weight ” or “ ton ” is such quantity of material uncleaned or clean as might from time to time in each colliery be agreed upon between the miner and operator as required to produce a ton of clean coal.’ Answer: This is matter of fact, and not of law, as the master views it. The proposition is affirmed in the master’s fourteenth finding of fact.”] [4] “ Defendants’ 16th conclusion of law is as follows : “ ‘ [That the plaintiffs, by reason of their laches, are estopped from maintaining this bill. Answer: The plaintiffs by reason of their laches are estopped from claiming a forfeiture of the second lease. They are not estopped, however, under all the circumstances, from demanding payment for the coal mined under said lease.”] [7] Exceptions among others were filed by plaintiffs to the master’s findings of fact, conclusions of law, and answers to plaintiffs’ and defendants’ requests, as in brackets above. Defendants’ 26th exception was to the master’s 6th conclusion of law. Defendants’ 24th exception, referred to in the opinion of the Court, was the refusal of a request to find that “ under all the evidence in the case, plaintiffs’ bill must be dismissed.” Defendants’ 81st exception was: “ The master erred in not dismissing plaintiffs’ bill as against all the defendants.” Errors assigned were (1) dismissal of bill; (2-9) dismissal of plaintiffs’ exceptions; and (10) sustaining defendants’ 26th exception; quoting them. On the question of jurisdiction: Adams v. Beach, 1 Phila. 99; 1 Story’s Eq. Jurisp. § 684; Willard’s Eq. Jurisp. 135; Benson v. Baldwyn, 1 Atk. 598; Mitchell on Contracts for Sale of Land, 57; Kauffman’s Ap., 55 Pa. 383; Sylvester v. Born, 132 Pa. 467; Daniell’s Ch. Pl. & Pr. 653; Livingston v. Livingston, 4 Johns. Ch. 287; Underhill v. Van Cortlandt, 2 Johns. Ch. 339; White v. Carpenter, 2 Paige, 217; Bank Bellows Falls v. R. R., 28 Vt. 470; Niles v. Williams, 24 Conn. 279; Nicholson v. Pim, 5 Ohio, 25; Cooper v. Smith, 9 S. & R. 26; Montgomery v. Snodgrass, 2 Yeates, 231; Stewart v. N. W. Coal & I. Co., 147 Pa. 612; Ferguson’s Ap., 117 Pa. 450; Washburn’s Ap., 105 Pa. 480 ; Harper’s Ap., 109 Pa. 9 ; Brush Electric Co.’s Ap., 114 Pa. 574; Bierbower’s Ap., 107 Pa. 14; Earley’s Ap., 121 Pa. 496; S. & E. R. R. v. Cooper, 33 Pa. 280; Adams’s Ap., 113 Pa. 449; Evans v. Goodwin, 132 Pa. 136. As to defendants’ liability for royalties: Davis v. Shoemaker, 1 Rawle, 135; Richards v. Bickley, 13 S. & R. 395; Wickersham v. Lee, 83 Pa. 424; Duff v. Bayard, 4 W. & S. 250; Berry v. McMullen. 17 S. & R. 84; Elkinton v. Newman, 20 Pa. 283; Negley v. Morgan, 46 Pa. 285; Adams v. Beach, 1 Phila. 100; Kearny v. Post, 1 Sandf. 105; Royer v. Ake, 3 P. & W. 461. As to the meaning of the words “ miners’ weight:” 2 Parsons, Cont. 493; 1 Addison, Cont. 374; Williamson v. McClure, 37 Pa. 402; Allison’s Ap., 77 Pa. 221; Brown v. Brooks, 25 Pa. 210; Carey v. Bright, 58 Pa. 70; Cooley’s Const. Lim. 344; Reiser v. Sav. F. Assn., 39 Pa. 146 ; Harrison v. Mora, 8 Pa. C. C. R. 224; Evans v. Myers, 25 Pa. 114; Weaver v. Fegeley, 29 Pa. 27; Farmers’ High School v. Potter, 43 Pa. 134; Godcharles & Co. v. Wigeman, 113 Pa. 431; Dunham v. Haggerty, 110 Pa. 560. On the question of forfeiture: McKnight v. Kreutz, 51 Pa. 232; Davis v. Moss, 38 Pa. 346; Hamilton v. Elliott, 5 S. & R. 375; Sheaffer v. Sheaffer, 37 Pa. 525; Becker v. Werner, 98 Pa. 555 ; Kenrick v. Smick, 7 W. & S. 41; Soper v. Guernsey, 71 Pa. 219; Bainbridge on Mines, p. 200, Dallas’ 1st Am. ed.; Quinn v. McCarty, 81 Pa. 480; Taylor’s L. & T. 379; Clark v. Cummings, 5 Barb. 339; Jackson v. Brownson, 7 Johns. 227; Gas Co. v. De Witt, 30 Pa. 235; Wills v. Gas Co., 130 Pa. 222 ; Shimer v. Morris Can. etc. Co., 27 N. J. 364; Waterman, Spec. Per. of Con. 7. Even if the bill, as amended, presented grounds for equitable relief, plaintiffs were proven guilty of gross laches and have no standing in a court of equity: Herman on Estoppel, 733; Waterman, Spec. Per. of Cont. § 435; 2 Beach, Eq. Jurisp. §§ 843, 1021; 2 Pomeroy, Eq. Jurisp. pp. 136, 259; Neely’s Ap., 85 Pa. 389. There can be no claim for an accounting under the pleadings, the issues of fact, and the findings of the learned master, approved by the court below: Horton’s Ap., 13 Pa. 66 ; Adam’s Ap., 113 Pa. 449; Grubb’s Ap., 90 Pa. 228; Harper’s Ap., 109 Pa. 9; Mathers’ Ap., 1 Cent. R. 342; Warner v. McMullin, 131 Pa. 370; Mitchell on Land Contracts, 65; Kauffman’s Ap., 55 Pa. 383 ; Adams, Eq., 8th ed., p. 401; Bispham, Eq., 3d ed. § 485; Passyunk Building Association’s Ap., 83 Pa. 441; Todd’s Ap., 24 Pa. 429; Neely’s Ap., 85 Pa. 387; Harrison v. Gibson, 23 Gratt. 212; Binney v. Brown, 116 Pa. 169; Irwin v. Cooper, 92 Pa. 298; Hamilton v. Hamilton, 18 Pa. 21; Funk v. Haldeman, 53 Pa. 244; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 617; Lazarus’ Est., 145 Pa. 1; Borland’s Ap., 66 Pa. 473; Bender v. George, 92 Pa. 36 ; Gas Co. v. Johnson, 123 Pa. 576; Lloyd v. Cozens, 2 Ash. 131; Bradford Oil Co. v. Blair, 113 Pa. 83; Helme v. Life Ins. Co., 61 Pa. 107 ; Dunham v. Haggerty, 10 Pa. 560. Plaintiffs are not entitled to a decree of forfeiture: 2 Beach, Eq. § 1010; 1 Pomeroy, Eq., §§ 451-9; Wills v. Manufacturers Natural Gas Co., 130 Pa. 222 ; Morse v. O’Reilly, 4 Clark, 75; McKnight v. Kreutz, 51 Pa. 233; Oil Creek R. R. v. R. R., 57 Pa. 65; Richard’s Ap., 100 Pa. 52; Messimer’s Ap., 92 Pa. 168; Thompson v. Christie, 138 Pa. 230; Mitford & Tyler’s Eq. Pleading, 204.
157 Pa. 41Kelly v. Herb (1893)
Appeal, No. 318, Jan. T., 1893, by William F. Greenoff, from decree of C. P. Berks Co., Equity Docket, No. 538, in case of Ellen Kelly et al. v. Henry P. Herb and William F. Greenoff, partners, awarding preliminary injunction. Bill to restrain distribution of proceeds of sheriff’s sale.
157 Pa. 42Pa. Schuylkill Val. R. R. v. Phila. & Read. R. R. (1893)
Appeal, No. 196, Jan. T., 1893, by defendant, from decree of C. P. Berks Co., Equity Docket, 1884, No. 341, in favor of plaintiff, on bill in equity. Bill and cross-bill to restrain plaintiffs and defendants from occupying portions of streets. (For appeal from preliminary injunction, see 16 W. N. 165.) The case was referred to Henry C. G. Reber, Esq., as master, who, after reciting the charter of the West Reading Railroad Co., act of March 20, 1860, P. L. 471, of the Berks Co. Railroad Co., acts of March 29, 1871, P. L. 466, and April 22, 1873, P. L. 834, both of which roads were afterwards acquired by appellant, and the charter of appellee, act of April 4, 1868, P. L. 62, found among other facts those recited in the opinion of the Supreme Court. The master recommended that the bill and cross-bill be dismissed. Exceptions were dismissed by the court in an opinion by Endlich, J. Errors assigned were dismissal of exceptions and decree, quoting them respectively. Appellants, possessing all the rights, powers and franchises of the West Reading Railroad Company, and of the Berks County Railroad Company, had, by force of the charter privileges, ordinances of the city of Reading and by actual appropriation for railroad purposes, of the same portion of Front and Canal streets on which appellee located and has now constructed its branch, the right to use that portion of the streets for railroad purposes, and this right was paramount to that of appellee, and could not be legally invaded and destroyed by appellee: Western R. R. v. Johnston, 59 Pa. 294; P. S. V. R. R. v. Reading Paper Mills, 149 Pa. 18; 1 Redfield on Railways, p. 306; Philadelphia & Trenton R. R., 6 Whart. 46 ; Danville R. R. v. Com., 73 Pa. 38; Duncan v. P. R. R. 94 Pa. 438; Packer v. R. R., 19 Pa. 211; Pa. R. R. Co.’s Ap., 93 Pa. 150; Jones v. R. R., 144 Pa. 629. A railroad company, organized under the act of 1868, has no right to occupy a street longitudinally, which had theretofore been appropriated, with the consent of the city, by an older railroad company: Pa. R. R. v. Belt Line R. R., 149 Pa. 218 ; Jones v. R. R., 144 Pa. 629; Pierce on Railroads, 247; People’s Pass. Ry. v. Baldwin, 14 Phila. 231; Musser v. Fairmount & Arch St. Ry., 5 Clark, 466 ; P. W. & B. R. R. v. Williams, 54 Pa. 103; Black v. H. & P. R. R. R., 58 Pa. 249 ; West Phila. Pass. Ry. v. Dougherty, 3 W. N. 62. Appellee could not lawfully construct its branch railroad, longitudinally, on Front and Canal streets, crossing at grade the numerous branches and sidings of appellant, and cutting off appellant from access to new business on the west side of Front and Canal streets: Pittsburgh Junction R. R. Co.’s Ap., 122 Pa. 511; Sharon Ry. Co.’s Ap., 122 Pa. 533; L. S. & M. S. R. R. v. N. Y. C. & St. L. R., 8 Fed. R. 858; Packer v. Sunbury R. R., 19 Pa. 217; White v. C., St. L. & P. R. R., 43 Am. & Eng. R. R. Cases, 164. Appellee has no right to cross the main tracks of the West Reading Railroad and Berks County Railroad at grade for the purpose of reaching a lot on which appellee has now built a second freight station: Perry Co. R. R. Extension Co. v. Newport & Sherman’s Valley R. R., 150 Pa. 193. The general railroad laws of Pennsylvania do not, as against the commonwealth, give a railroad company constructing upon a street in a city a right of way upon the said street commensurate in quality and extent with that acquired by condemnation over private lands. The company’s right to construct upon the highway is limited to the line of railway, being that used for passage merely : Com. v. Erie & N. E. R. R. 27 Pa. 354; Pa. R. R. Co.’s Ap., 93 Pa. 150; N. Y. & H. R. R. R. v. 42d St. & G. S. F. Ry., 50 Barb. 285 ; Phila. & Gray’s Ferry Ry. Co.’s Ap., 13 W. N. 105; Allegheny v. Ohio & Pa. R. R., 26 Pa. 355; Pa. Sch. Val. R. R. v. Reading Paper Mills, 149 Pa. 18 ; Neitzey v. Baltimore & Potomac R. R., 26 Am. & Eng. R. R. Cases, 556; McQuaid v. Portland & V. R. R. 40 Am. & Eng. R. R. Cases, 815; Pierce on Railroads, 154; Charles River Bridge v. Warren Bridge, 11 Peters, 420; North Penna. R. R. v. Stone, 3 Phila. 421; Com. v. Erie & N. E. R. R., 27 Pa. 339; Case of Phila. & Trenton R. R., 6 Whart. 25 ; Snyder v. Penna. R. R., 55 Pa. 340. A doubtful charter does not exist: Penna. R. R. v. Canal Commissioners, 21 Pa. 22; Allegheny City v. Ohio & Penna. R. R., 26 Pa. 355 ; Lance’s Ap., 55 Pa. 16 ; Packer v. Sunbury & Erie R. R., 19 Pa. 218 ; Com. v. Erie & N. E. R. R., 27 Pa. 851; Attorney General v. Lombard & S. St. Pass. Ry., 1 W. N. 489; Com. v. Central Pass. Ry., 52 Pa. 506. Appellants have, by none of the statutes under which they claim, been invested with a right to the entirety of the streets in question and have not acquired and do not possess any title to the parts of the streets whereon appellees’ branch and main line are constructed. Where the charter confers a right to build branch roads, the presumption follows that the company has the same right to condemn lands whereon to construct such roads, as in the case of the main line : 1 Wood’s Ry. Law, p. 544. The relative importance of the main line and the branch are not to be measured by their length respectively, under the peculiar circumstances of the case: Mayor etc. of Pittsburgh v. P. R. R., 48 Pa. 359; Volmer’s Ap., 115 Pa. 166 ; Getz’s Ap., 10 W. N. 453. The summary allowance and regulation of a grade crossing by an interlocutory decree, is in accordance with the practice of the courts: Balt. & Phila. R. R. v. P. W. & B. R. R., 17 Phila. 396; Phila. & Erie R. R. v. Catawissa R. R., 1 Walker, 81; Pa. Sch. Val. R. R. v. P. & R. R. R., 151 Pa. 402.
157 Pa. 51Bellows v. Pa. & N. Y. Canal & R. R. (1893)Defendant appealed
Appeal, No. 51, Jan. T., 1893, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1890, No. 479, on verdict for plaintiff, Erastus R. Bellows. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. Defendants’ point among others was as follows: “ 13. That under the circumstances of this case, the bridge that caused the accident having been in the same position for years, and well known to the plaintiff, the only difference in the engine used on this trip being an increased projection towards the side of the bridge of at most three inches and arm rests plainly to be seen by the engineer, there was no necessity on the part of the officers of the defendant company for previous warning and instruction. Answer: We refuse this point, but leave that question to you as to whether it was negligence on the part of the defendant to have placed this plaintiff upon this engine without giving him notice of the condition of the engine.” [5] Verdict and judgment for plaintiff for $12,000. Errors assigned were (5) instructions, quoting them. In an action by an employee against his employer, for injuries sustained while in such employment, negligence must be affirmatively shown and is not to be inferred from the fact of an accident. The law recognizes' no degrees of contributory negligence: Schuylkill Nav. R. R. v. Norton, 24 Pa. St. 465; C. R. R. v. Armstrong, 49 Pa. St. 193. The railroad bridge in question was of the width in general use on railroads, and defendant was guilty of no negligence in either its construction or its continued use. Plaintiff had been running engines of the width of the one on which he was injured so long that he should have known its width, and how close it came to the bridges and other permanent structures along the track. Prom the fact that Lehigh Valley engines to the number of fifteen or twenty were run over' the road with cabs eight feet and eleven inches wide, plaintiff was bound to take notice that the width of engines varied and to govern himself accordingly, so that he might not be injured by being put on one of a slightly increased width. That plaintiff had no right to rely upon so narrow a margin as three inches in making his observations has been expressly decided as to a brakeman when riding on top of a oar: P. & C. R. R. v. Sentmeyer, 92 Ba. 276. The rule requiring previous warning and instruction on the part of employers to employees is ordinarily only held to apply in the case of the employment of young and inexperienced persons to work among dangerous machinery, where the danger is latent: Rummel v. Dilworth, 131 Pa. 509; Melchert v. Brewing Co., 140 Pa. 448; Iron Ship Building Works v. Nuttall, 119 Pa. 149. There is no obligation resting upon railroad companies to build its bridges high enough to clear the bodies of brakemen who are necessarily often on top of its ears, and brakemen when they do go on top of the cars must guard themselves from injury by such structures: Brossman v. L. V. R. R., 113 Pa. 490; Stoneback v. Thomas Iron Co., 17 W. N. 295 ; P. & R. R. R. v. Hughes, 119 Pa. 301; Owen v. N. Y. C. R. R., 1 Lansing, 108; Gibson v. Erie R. R., 18 Sickles, 449. Employers are not bound to guarantee absolute safety; but are bound only to provide appliances that may be used in safety by the exercise of reasonable care on the part of the employee: P. & C. R. R. v. Sentmeyer, 92 Pa. 276; Rummel v. Dilworth, 111 Pa. 343; Brossman v. L. V. R. R., 113 Pa. 490 ; Allison Mfg. Co. v. McCormick, 118 Pa. 519; P. & R. R. Co. v. Hughes, 119 Pa. 301; Lehigh Coal Co. v. Hayes, 128 Pa. 294; Faber v. Carlisle Mfg. Co., 126 Pa. 387; Titus v. R. R., 136 Pa. 618 Diehl v. Lehigh Iron Co., 140 Pa. 487. The true test as to whether the employer has furnished the employee with implements and appliances suitable for the employment is whether such implements and appliances are in general use: Iron Shipbuilding Works v. Nuttall, 119 Pa. 149; Lehigh Coal Co. v. Hayes, 128 Pa. 294; Titus v. R. R., 136 Pa. 618. Plaintiff was guilty of contributory negligence: Butler v. Gettysburg etc. R. R., 126 Pa. 160; Mansfield Coal Co. v. McEnery, 91 Pa. 185; N. Y., L. E. & W. R. R. v. Lyons, 119 Pa. 324; Patterson on Railway Law, 873; Diehl v. Lehigh Iron Co., 140 Pa. 487; Russell v. Hutchinson, 15 W. N. 482; Melchert v. Smith Brewing Co., 140 Pa. 448; Diehl v. Iron Co., 140 Pa. 487; P. & C. R. R. v. Sentmeyer, 92 Pa. 276; Brossman v. L. V. R. R., 113 Pa. 490; Patterson on Railway Law, § 327, page 373; P. & R. R. R. v. Hughes, 119 Pa. 301; Gas Co. v. Robinson, 99 Pa. 4; Railway Co. v. Taylor, 104 Pa. 306; Menseh v. R. R., 150 Pa. 598. Whether plaintiff was or was not guilty of contributory negligence was properly submitted to the jury: P., W. & B. R. R. v. Stinger, 78 Pa. 219 ; Patterson on Railway Accident Law, §§ 6, 37 ; Murphy v. Crossan, 98 Pa. 495; Hydraulic Works Co. v. Orr, 83 Pa. 332; MeIlvaine v. Lantz, 100 Pa. 586 ; Payne v. Reese, 100 Pa. 306 ; Born v. Plank Road Co., 101 Pa. 334; Harrisburg v. Saylor, 87 Pa. 216; King v. Thompson, 87 Pa. 365 ; Mallory v. Griffey, 85 Pa. 275; P. R. R. v. Fortney, 90 Pa. 323. The points presented involved questions of fact that were disputed. These were therefore properly answered: P. R. R. v. Werner, 39 Pa. 64; P. R. R. v. White, 88 Pa. 329. The court could not declare as matter of law, on the facts of this case, that the danger from which plaintiff suffered was one of the risks which he assumed when he accepted employment as an engineer on defendant’s road: Rummell v. Dilworth, 111 Pa. 343 ; s. c., 131 Pa. 509 ; Fay v. Ry., 11 Am. & Eng. R. R. Cas. 193 ; Citizens Pass. Ry. of Pittsburgh v. Foxley, 107 Pa. 537 , Schum v. P. R. R., 107 Pa. 8 ; Arnold v. P. R. R., 115 Pa. 135 ; P. R. R. v. Peters, 116 Pa. 206 ; Schilling v. Abernethy, 112 Pa. 437; Neslie v. Second & Third St. Pass. Ry., 113 Pa. 300; Pass. Ry. v. Boudrou, 92 Pa. 431; McNeal v. Pittsburgh & W. Ry., 131 Pa. 184 ; Sweeney v. B. & J. E. Co., 101 N. Y. 520 ; Patterson on Railway Accident Law, 304, 309, 343; Vosburgh v. L. S. & M. S. Ry., 94 N. Y. 374. The true test in our judgment is, admitting all the facts proved by the plaintiff to be true, with all the legal inferences properly and fairly to be drawn from these facts, would the court sustain a verdict for the plaintiff, and if the court would do that, then it was a case for the jury : Brossman v. L. V. R. R. 113 Pa. 490; P. & C. R. R. v. Sentmeyer, 92 Pa. 276.
157 Pa. 59Gibbs's Estate (1893)Exceptions among others to above findings in brackets…
Appeal, No. 66, Jan. T., 1893, by W. F. Hal]stead, guardian of Mary E. Clapp et al., from decree of O. C. Bradford Co., Sept. T., 1887, No. 20, dismissing exceptions to auditor’s report in estate of Henry Gibbs, deceased. Exceptions to report of auditor on exceptions to administrator’s account. Before Metzger, P. J., 29th judicial district, specially presiding*. The case was referred to Stanley W. Little, Esq., as auditor. Before the auditor, W. F. Hallstead, guardian of Mary E. Clapp et al., claimed to recover from the estate of decedent, Henry Gibbs, the sum of $2,900.46, the amount of a deposit in the Home Savings Bank, of which decedent was a stockholder. The claim was made on the ground that the bank was a general partnership, and that its stockholders were liable as partners for its debts. The auditor reported in part as follows: “ The exceptants to the account of the administrator ask to take out of the funds for distribution the sum of $36,167.53 and interest. This request is based on the position that the ‘ Home Savings Bank ’ was not a corporation, or a limited partnership, or a joint stock association, and therefore was a common partnership. That, being a common partnership, and Henry Gibbs having been a stockholder therein, his individual estate is liable for the entire amount of money deposited in said bank during the time said Gibbs was a member thereof, and unpaid, with what interest may be due thereon. “ This statement of the case at once discloses its importance to the parties concerned. The industry of counsel and the research of the auditor have failed to find much authority in this state to aid in the solution of the question which distinguishes this case. All fair minds must agree that a party seeking to divert so large a fund from its ordinary channel into the pockets of strangers, should present a case strong in the fact and clear in the law. “ As a starting point in this investigation the auditor can find nothing better than the opinion of Mr. Justice Williams, in the case of Hallstead v. Coleman, 143 Pa., at page 364, in these words: ‘ Now the important question in this case, which lay at the threshold of plaintiff’s cause of action, was whether this bank was a partnership. The plaintiff alleged it and claimed to recover against the defendants as members of the banking firm. The burden of proving the partnership was on him, and until this proof was given the defendants were not called upon to enter upon their defence.’ Applying this law to this case, which involves questions very similar to those in the ease just mentioned, the first question is, have the except-ants proved this was a partnership, of which Henry Gibbs was a member at the time they deposited their money in this bank, and for all the debts and defalcations of which his estate is liable ? “ Tbe evidence offered by them shows that in September, 1873, a bank was opened at South Waverly in this state; that it had over its door the name ‘ The Home Savings Bank; ’ that it organized by electing a board of directors and a president and cashier ; that its capital stock was divided into shares of one hundred dollars ; that to each holder of stock it issued certificates of stock, saying upon their face that the bank was organized under act of the legislature of Pennsylvania; that its authorized capital was one hundred thousand dollars; that these certificates bad on their back blank powers of attorney for transfer, and in all respects were in the form and style usually adopted by banks; [that these certificates when issued were signed by the president and cashier, and to some of them the seal was affixed;] [17] [that it had a seal which was affixed to all cashier’s checks ;] [18] that said bank registered in tbe office of the auditor general under section 1 of act of June 7,1879 ; that it filed these separate reports in said office of its net earnings or income under the 10th section of said act; [that it also filed in said office at least six reports for publication, covering the four quarters of the year in accordance with the requirements of the act of A.pril 16, 1850, and April 17, 1861;] [19] that it paid dividends to its stockholders ; that it failed and passed into the hands of a receiver ; that none of the certificates of stock, certificates of deposit, books of account with customers, bills, letters, cheeks or drafts bore upon their face the names of any member other than the president and cashier, and the person to whom addressed or issued; that the transfer of any stockholder’s interest was at his own option, and neither such transfer, nor the death of any stockholder worked any change in the name or conduct of the business ; that so slight was the effect upon the business of the , death of Mr. Gibbs, that a large amount of claims have been presented before the auditor for allowance, for money deposited after his death; or deposited before and re-deposited and new certificates therefor issued after his death. [What is there in all this evidence from beginning of the business to the failure tending to prove a partnership ? What in it all inconsistent with a corporate existence ? Only one thing has been urged upon the auditor, and that is to be found in the form of the reports made by the bank to the auditor general of its net earnings or income under § 10 of act 1879;] [20] and the position was taken that the provisions of this section only apply to unincorporated banks. While it is true that in the printed portion of these reports the word ‘firm’ is used instead of ‘corporation ; ’ yet, remembering that these printed forms were not made by the bank, but were sent to it from the auditor general’s office; and that they were made and returned under an act which is not applicable solely to unincorporated banks, but applies to those which are incorporated as well, [and as at most was only the declaration of one member in the absence of and without the knowledge of any others; the auditor does not deem this single fact sufficient to overcome the preceding evidence of incorporation, or, more accurately, to prove the partnership.] [21] “ This comprises the affirmative evidence of the exceptants. It is supplemented by some of a negative character, showing that searches in the office of the recorder of deeds in this county have failed to find any record of this bank as a limited partnership; and that searches in the auditor general’s office have proved equally futile in finding any record of its incorporation. From these two negatives the auditor is urged to find an affirmative. In other words, as no record can be found showing this bank to have been a limited partnership or a corporation, it nrast have been a simple partnership. “ Upon the certificates issued to Mr. Gibbs each time he acquired stock in this bank, it declared it was organized under ‘act of the legislature of Pennsylvania.’ If this was true, a search among those local acts of the legislature which filled our pamphlet laws prior to 18T4, might have been better rewarded. “ [But is it true that if this was not a corporation or a limited partnership, it follows necessarily that it was a common partnership? This lias been urged with much force, and the audit- or admits that he entertained that belief at the outset of this case ; but from authority consulted and reflection, he has come to a different conclusion. A partnership inter se cannot result from any aggregation of negatives. The formation of such a partnership is a positive action and cannot exist without an agreement of some kind among all its members.] [22] Parsons in his work on Partnership, in discussing who are liable as partners, says : ‘ The first thing to be remembered is that persons may be charged as partners of a firm, on either one of two perfectly distinct grounds ; one of them is that the person actually is a partner, the other is that he lias with his own knowledge and consent held forth as a partner to the person having a claim, or to the public generally.’ [Upon which of these two distinct grounds can Mr. Gibbs be charged as a partner in this case ? Certainly not upon the first; for no articles of partnership and no agreement to be partners, and no agreement of any kind existed between Mr. Gibbs and the other stockholders ; and no person can be a partner in fact in a partnership having no existence. If then this estate is to bo charged, it must be upon the second ground above mentioned. But the evidence fails to show any holding forth of him as a partner by the bauk or by himself. Ills name nowhere appears in any business transaction of the bank with others ; lie took no part in its management or control; ho never held any official position therein ; no one of these claimants knew that he was a stockholder therein at the time of depositing their money; the bank never represented to any one of them that it was a partnership, and none of them dealt with it as such, and the evidence does not show that Mr. Gibbs had any knowledge of the transactions between the bank and these claimants, or had a personal acquaintance with them. But on the contrary the weight of the evidence tends to show that this bank held itself out to the world and to Mr. Gibbs as a corporation and nothing else.] [23] “But, it is said, Mr. Gibbs took dividends on his stock, and hence his estate is liable in this case. [As tending to discharge the burden resting upon the claimants, to prove that this bank was a partnership instead of a corporation, the fact of the receipt of dividends does not go far;] [24] because the taking of dividends is as consistent with the corporate, as with the partnership relation. “ [Nor does this fact, standing alone and disconnected with any agreement between the stockholders, or any holding forth of Mr. Gibbs as a partner by the bank or by himself, or with any credit given to the bank by the claimants knowing Mr. Gibbs to be in any way connected therewith, make his estate liable] [25] in the opinion of the auditor. The old doctrine annunciated in Waugh v. Carver, 2 H. Bl. 235, that one taking a share of profits shall, by operation of law, be made liable to losses, upon the principle that, by taking a part of the profits, he takes from the creditors a part of that fund which is the proper security to them for the payment of their debts, is not the accepted law to-day in England, and, as the auditor thinks, is not in accordance with the weight of authority in this country: Edwards v. Trac}7,62 Pa. 380. [Profits can only exist after payment of all liabilities ; and how any one who shai’es only in what maj7 remain after all creditors are secured, takes from them any security, is not quite plain.] [26] This is especially true of the banking business. [Every man buying stock in a bank that is conducted upon usual and sound banking principles, as he has a right to-expect it will be, knows that he will get no dividends, only such as may remain after all liabilities are deducted.] [27] When a person induces others to credit a firm upon the assurance or belief that he is a member thereof, his property should make good any loss thereby sustained by such creditor, whether such person receives any dividend or not; [but to hold one who puts money into a business and draws out no part of the principal, and but a small part of the interest, liable for all debts, should rest on better reason than that he has reduced the creditors’ security. Mr. Gibbs’s purchase of this stock and the receipt of dividends thereon, did nothing to lessen the amount these exceptants may, or have realized on their claims. He put in six thousand dollars, and drew out eighteen hundred and twenty dollars, thereby making the fund for creditors forty-one hundred and eighty dollars larger.] [28] That this fund was diverted or misappropriated, does not make him liable; it not having been done by him or by any agent of his, in fact or in law. It has been said in support of these claims that there must be a liability somewhere, that persons doing business in this state must do it subject to the liability either of incorporators, partners or individuals. Suppose this is admitted. Is there a want of all liability here ? If this bank were solvent to-day, and these claimants brought suit against it as a corporation, what would prevent their recovery? [Having declared to the world for nearly eighteen years that it was a corporation, and having induced these parties to trust it as such, what court would now permit it to defend on the ground that it was not incorporated, and thereby allow it to benefit by its own fraud? Clearly it would be estopped :] [29] Spahr v. Farmers Bank, Carlisle, 94 Pa. 429, and authorities there cited. The inability of claimants to get their pay seems to result more from a want of ability than liability on the part of the bank; a want from -which this estate has suffered in common with these parties. “ [ The auditor is therefore of the opinion that the demand of the claimant is not sustained ;] [30] and dismisses the exceptions, feeling satisfaction in the knowledge that his decision, if erroneous, can be corrected in a higher court. In coming to this conclusion the auditor has been influenced to some extent (he hopes not too far) by the opinion of Judge Martin of the Supreme Court of New York, and the many authorities cited by him in the case of the Merchants National Bank of Binghamton, New York, v. Charles E. Pendleton et al., which is attached to this report; which opinion has been recently affirmed by the court of appeals of the same state.” Errors assigned were (18 — 30) dismissal of exceptions, quoting them. Rightfully dividends can only be paid out of profits: 5 Am. & Eng. Ency. of Law, 725 ; 2 Lindley on Partnership, see. 791. The auditor was clearly mystified by the terms “ profits” and “ dividends,” or else he attempted to steer clear, which is more likely^, of the rule laid down by the case of Edwards v. Tracy, 62 Pa. 374; Caldwell v. Miller, 127 Pa. 446. The declarations and acts of an officer or even a member of a partnership firm aré binding upon the other members, if done within the scope of the business of the partnership: Loudon Sav. Fund Society v. Hagerstown Sav. Bank, 36 Pa. 498; 1 Lindley on Partnership, § 264. The admissions of one partner with reference to a partnership transaction are evidence against the firm : 1 Lindley on Partnership, § 264; Welsh v. Speakman, 8 W. & S. 257; Taylor v. Henderson, 17 S. & R. 453; Johnston v. Warden, 3 Watts, 101; Reed v. Kremer, 111 Pa. 482; Brown v. Beecher, 120 Pa. 590; Wharton, Agency, § 679; Harrisburg Bank v. Tyler, 3 W. & S. 373; Spalding v. Bank of Susquehanna Co., 9 Pa. 28; Bank of Monroe v. Field, 2 Hill, 445 ; Aid Society v. McDermond, 12 W. N. 73. The Home Savings Bank was a joint stock company or a partnershp : Oliver’s Estate, 136 Pa. 58. But whether it is a joint stock company or a partnership, the liability of the appellant is practically the same : Cook on Stockholders, § 508 ; Kellogg Bridge Co. v. United States, 15 Court of Claims, 111; Westcott v. Fargo, 61 N. Y. 542; Witherhead v. Allen, 3 Keyes, 562. All unincorporated banks are partnerships: Hess v. Werts, 4 S. & R. 359; Witmer v. Schlatter, 2 Rawle, 359; Ridgely v. Dobson, 3 W. & S. 118; Beaver v. McGrath, 50 Pa. 479; Fry’s Account, 4 Phila. 133; Protchett v. Schaefer, 11 Phila. 166; Shamburg v. Fowler, 25 Pitts. L. J. 148; Thomson’s Est., 5 W. N. 14. So are unincorporated joint stock companies : Kramer v. Arthurs, 7 Pa. 165 ; Hedge & Horn’s Ap., 63 Pa. 273; Clarke’s Ap., 107 Pa. 436 ; Oliver’s Est., 136 Pa. 43. The shareholders are therefore each personally liable for all the debts of the bank: 2 Lindley on Partnership, 1421, § 1083; Pettis v. Atkins, 60 Ill. 454; 1 Lindley on Partnerships, 518 ; Hodgson v. Baldwin, 65 Ill. 532; Boston & Albany R. R. v. Pearson, 10 Reporter, 81; Jessup v. Carnegie, 12 Jones & Sp. 261; Shamburg v. Ruggles, 83 Pa. 148 ; Clark v. Fletcher, 96 Pa. 416 ; Christy v. Sill, 131 Pa. 492; Weiterhausen v. Shaner, 26 Pitts. L. J. 213. No partnership is limited in Pennsylvania unless it be formed in strict compliance with the acts of assembly relating to limited partnerships : Andrews v. Schott, 10 Pa. 47 ; Richardson v. Hogg, 38 Pa. 155 ; Vandike v. Rosskam, 67 Pa. 330. If parties seek to have all the advantages of a partnership and yet limit their liability to creditors, they must comply strictly with the act of June 2, 1874, P. L. 271: Maloney v. Bruce, 94 Pa. 249; Eliot v. Himrod, 108 Pa. 579; Hite Natural Gas Co.’s Ap., 118 Pa. 436; Hill v. Stetler, 127 Pa. 145; Vanhorn v. Corcoran, 127 Pa. 255; Sheble v. Strong, 128 Pa. 315. While it may be admitted that participation in profits does not conclusively establish a partnership relation; but such participation must be considered as evidence tending to establish that relation, and in the absence of other proof is to be regarded as sufficient to make out a partnership: Meehan v. Valentine, 19 W. N. 506 : Walker v. Tupper, 152 Pa. 1; Cook on Stockholders, sec. 206 ; Mendenhall’s Case, 9 Bankruptcy Register, 497; Whipple v. Parker, 29 Mich. 369; Foster v. Pray, 29 N. W. R. 155 ; Nat. Bank of Watertown v. Landon, 45 N. Y. 412 ; 1 Lindley, §§ 17, 91; Parsons, pages 8, 9. * That whore a body professing to be a corporation has been expressly dealt with it cannot question its corporate existence, for the purpose of charging its members individually as if they were partners, is the law only as applied to de facto corporations : Morawetz, § 740 ; Planters & M. Bank v. Padgett, 69 Ga. 159; McCarthy v. Lavasche, 89 Ill. 270. Two things must be shown to establish the existence of a corporation de facto, viz.: first, the existence of a charter or some law under which such a corporation with the powers assumed might be created ; second, a user by the partjr assuming to be such corporation, of the rights claimed to be conferred by such charter or law: Methodist Episcopal Union Church v. Pickett, 19 N. Y. 482. The rule laid down by Morawetz, however, has not been universally accepted as in Glenn v. Bergmann, 2 W. R. 597 , Hurt v. Salisbury, 55 Mo. 310. Persons who enter into a contract in the name of a corporation which has no legal existence, become individually liable thereunder. One who contracts with others under a corporate name believing that he is contracting with a corporation, when none in fact exists, is not, in a suit against such persons to enforce the contract, estopped to deny that they were a corporation : Sheble v. Strong, 128 Pa. 315; Cook on Stockholders, § 233, note 2. The prevailing fault of the auditor is that his conclusions are almost wholly based upon inferences drawn from alleged facts which have no existence, and they are not therefore warranted by the facts proved in the case, and, although affirmed by the court below, is strong ground for a reversal of the decree in this case: Hindman’s Ap., 85 Pa. 466; Milligan’s Ap., 97 Pa. 525; Jacob’s Ap., 107 Pa. 137; Cake’s Ap., 110 Pa. 65. The finding of fact by an auditor that a party sought to be charged as a partner was not a partner, either in fact or as to third parties, being approved by the court below, will not be reversed in the Supreme Court except for clear error: Boffenmyer’s Est., Hess’s Ap., 150 Pa. 540; Stevens v. Phila. Ball Club, 142 Pa. 52. We deny that a partnership is the necessary result of an abortive attempt to organize a corporation, or of the purchase of stock in good faith by a person in an institution which he has reason to suppose is legally incorporated. To hold otherwise would daily jeopardize the fortunes of the thousands of individuals who deal in them: Gartside Coal Co. v. Maxwell, 6 A. & Eng. Corp. 359; Morawetz on Private Corporations, sec. 740; Blanchard v. Kaull, 44 Cal. 440; Fay v. Noble, 7 Cush. 188; Spahr v. Farmers’ Bank, 94 Pa. 429; Arnold v. Cochran, 58 Pa. 399; Stevens v. Phila. Ball Club, 142 Pa. 52.
157 Pa. 75Pease's Appeal (1893)
Appeal, No. 77, Jan. T., 1893, by Edward E. Pease, from decree oí O. C. Bradford Co., Sept. T., 1887, No. 20, dismissing exceptions to auditor’s report. The facts are the same as in the preceding case.
157 Pa. 75Livezey v. Northern Pacific R. R. (1893)The court entered a compulsory nonsuit, and subsequently…
Appeal, No. 259, Jan. T., 1893, by plaintiffs, Ann L. Livezey, John Livezey and Thomas Livezey, Jr., executors of Thomas Livezey, deceased, from order of C. P. No. 1, Phila. Co., March T., 1892, No. 492, refusing to take off nonsuit. Trespass for damages for refusal to transfer stock. The facts appear by the opinion of the Supreme Court. By testator’s will, all his property, real and personal, was given to his executors, the plaintiffs, in trust to pay the income only to his widow during her life. After the widow’s death the corpus of the estate was to be divided into five equal parts, two of which the testator gave absolutely to his sons John and Thomas Livezey, Jr., the plaintiffs. The remaining three parts were given, devised and bequeathed “ unto my executors hereinafter named, and the survivor of them in trust to invest the personal property and keep the same invested,” etc., upon three separate trusts. Further sections of the will are as follows: “ 12. I desire my executors not to sell any of my stocks that may be depreciated in market value but to retain the same trusting to a rise. “ 13. All investments to be made by my executors shall be in either: United States registered bonds, city sixes or other city loan, first mortgages on real estate to not more than one half of the property mortgaged, or first mortgage interest-paying registered bonds of a good railroad company. Provided, however, that other investments may be made with the assent of tile cestuis que trust. “ 14. I authorize my executors to sell any part of my real estate whenever they think it best to do so, and to make good and sufficient deeds therefor to the purchaser and invest the proceeds therefor as above provided.” The codicil to testator’s will provides : “ 3. Whereas, in the sixteenth clause of niy will, I direct that no real estate shall be sold by nry executors after the division without the consent of the cestui que trust. Now I ■ also direct that after such division no securities so hold in trust shall be sold without the consent of the cestui que trust.” The division referred to was to take place after the death of the widow, who still lives. Error assigned was refusal to take off nonsuit. The executors in the estate of decedent may transfer the stock of the estate, and convey a title which the corporation is bound to recognize, although the corporation itself is domiciled in another state: Hobbs v. Bank, 8 W. N. 131; Cape May & Delaware Bay Nav. Co., 16 Atl. R. 191; Wilkins v. Ellett, 9 Wal. 742. At-this time, on the facts of the case, no one can reasonably say that there was no evidence from which the jury might not have found that Thomas Livezey, the decedent, owned this stock. No one doubts it. The defendant itself always asserted it to be decedent’s stock and finally transferred it on the powers of attorney given by the executors. It was included in the inventory of the estate. As under the will plaintiffs had the right to transfer, and defendants after suit brought admitted their right, the court below should have left it to the jury to say whether plaintiffs owned the stock, and whether defendant was pi’evented by plaintiffs’ acts from making and justified in refusing this transfer. There can be no question of estoppel, because defendant was not led into any course of action by the conduct of plaintiffs. During the whole controversy it refused to alter its position, until, suit brought, it made the transfer. The only estoppel in this ease is on the part of plaintiffs, who cannot be permitted to say, after procuring a transfer as executors, that either of them is, has been or may be the individual owner of the stock. Plaintiffs failed upon the trial to show that the certificates of stock which defendant company refused to transfer were the property of decedent, of whom they are executors. If it be assumed that the stock belonged to plaintiffs’ testator, then, by the terms of testator’s will, plaintiffs were not justified in making a sale or transfer, and defendant was bound to see that no improper transfer wag made : Bayard v. Bank, 52 Pa. 232; Angell & Ames, Corp. § 587 ; Loring v. Salisbury Mills, 125 Mass. 138; Cook on Stockholders, § 327. The burden is always on the trustee alleging the power of sale to point out such power in the instrument creating the trust: Perry, Trusts, § 767; Lewin, Trusts, 8th ed., p. 427 ; Drake v. Whitemore, 5 D. G. & S. 619; Blacklow v. Laws, 2 Hare, 40 , Kellaway v. Johnson, 5 Beav. 319. The fact that defendant is subject to the jurisdiction of the court for the service of process does not make it subject to the provisions of the Pennsylvania statute regulating transferring of stock. The statutes of a state can have no extra territorial effect: Morgan v. Neville, 74 Pa. 52; Rorer on Interstate Law, 167. The order of the orphans’ court, which was offered in evidence, afforded no protection to the railroad company in making the transfer. The case of Bayard v. Bank, 52 Pa. 232, turned not upon the authority of Thomas F. Bayard, trustee, to transfer the stock on the books of the bank, but upon the trustee’s right to transfer without disclosing any authority whatever for so doing. The case as reported does not disclose what the trustee’s authority was in the instrument appointing him, as the trustee refused to give the bank any information whatever as to the extent of his authority. Under these circumstances the bank properly refused to make the transfer until the instrument containing the trustee’s authority was disclosed. This case, together with the three English cases cited by appellee, Drake v. Whitmore, 5 D. G. & S. 619; Blacklow v. Laws, 2 Hare, 40; Kellaway v. Johnson, 5 Beav. 319, were all cases of specific gifts of which the specific legatees would take the income and which were compelled to be held to be enjoyed by the cestui que trust in specie : Perry, Trusts, § 451. In a case where testator gave to his wife the whole of the interest arising from his property, both real and.personal, during her life, and at her decease to be disposed of as therein directed, it was held that the trustees must convert, as there was no indication that she should enjoy any of the property in specie : Perry, Trusts, § 451; Benn v. Dixon, 16 Sim. 21; Thornton v. Ellis, 15 Beav. 193 ; Morgan v. Morgan, 14 Beav. 92; Blann v. Bell, 2 D. G., M. & G. 775 ; Hood v. Clapham, 19 Beav. 90 ; Litchfield v. Baker, 13 Beav. 447.
157 Pa. 88Ingraham v. Schaum & Uhlinger (1893)Rule for judgment discharged
Appeal, No. 262, Jan. T., 1893, by plaintiff, Edward Ingraham, from order of C. P. No. 2, Phila. Co., March T., 1892, No. 331, discharging rule for judgment for want of sufficient affidavit of defence. Assumpsit for royalties on sale of unpatented device. From plaintiff’s statement it appeared that on Feb. 16,1891, plaintiff granted to defendants by an instrument in writing the right to build his “patent witch motion ” at a royalty of five dollars per machine. The right was given for one year with the privilege of renewal. At the date of the contract plaintiff had applied for letters patent on the witch motion, and the agreement provided that when the patent was issued, that another agreement should be entered into embodying in detail the matters mentioned in the first agreement, and stating tlie date and number of the patent. Daring the year defendants made and sold 375 machines, the royalties on which amounted to $1,880. Of this amount $490 were paid on account. The affidavit of defence averred: “ At and before the signing of the said contract, be, the said plaintiff, represented to the defendants that he was the first, true and. only original inventor of a certain device, the construction of which he explained to deponent, and which is known as a witch motion, and for which he stated he had made or was about to make application for letters patent of the United States. Relying upon these representations of the plaintiff that the said device was new and would be patented by him, and in consideration of its patentability, the defendants entered into the said contract. Since then the defendants have built and sold a number of machines containing a witch motion as aforesaid. Have paid the plaintiff the sum of $490 on account of royalties, and are ready and willing to pay any balance that may be due him on that account, when he shows he has the right to claim and receive the same in accordance with his contract and as the owner of the patented or patentable device. But the defendants have been informed since the signing of said contract, and believe and expect to be able to prove it at the trial of this case, that, notwithstanding the representations of said plaintiff at and before its execution and referred to therein, there was nothing new or patentable in plaintiff’s device as aforesaid; that he cannot obtain a patent therefor; that his application for letters patent for tlie same had been refused, all of which he has wrongfully concealed from said defendants, and that therefore the entire consideration for the agreement of said defendants to pay any royalty or for the money paid on account has failed. The deponent further says that the items in the plaintiff’s expense account, referring to the Augusta Exhibition, amounting to $59.05 were contracted without authority from the defendants and without their knowledge. “ The deponent further says that as the defendants have paid plaintiff the sum of $490 (not $450, as alleged by him) on account, and in consideration of his representations and without knowledge on their part at the time of payment that there was a want of novelty or patentability in his said device, or that the granting of letters patent for the same had been refused, that, therefore, he cannot recover the sum of $105.85 claimed by him for the expenses, or any part thereof, but on the contrary, the said plaintiff is indebted to the defendants on this account of the sum of $490 for which they shall ask (less the expenses due him) for a verdict in this case.” Error assigned was above order. Angier v. Eaton, Cole & Burnham Co., 98 Pa. 594; Hardwick v. Caves, 1 Dist. R. 137; Bellas v. Hays, 5 S. & R. 427; White v. Lee, 14 Fed. R. 789; Kinsman v. Parkkurst, 18 How. 289; Rogers v. Riessner, 30 Fed. R. 525; Marston v. Swett, 66 N. Y. 206; 82 N. Y. 526. Jenkins v. Abbotts, 54 N. H. 447; Iron Works v. Newhall, 34 Conn. 67; Smith v. Hightower, 76 Ga. 629; Harlow v. Putnam, 124 Mass. 553; 3 Robinson on Patents, § 915; Marston v. Swett, 82 N. Y. 526; Pope Mfg. Co. v. Owsley, 27 Fed. R. 100.
157 Pa. 93Cox v. Watts, Twells & Co. (1893)
Appeal, No. 325, Jan. T., 1893, by D. W. Cox, trustee, from order of C. P. No. 2, Phila. Co., March T., 1889, No. 587, discharging rule to show cause why execution should not issue. Rule for execution against defendants individually. The facts appear b}r tbe opinion of the Supreme Court. Errors assigned were (1) in discharging rule for execution against defendants individually, for the amount of capital unpaid by them respectively ; (2) in not awarding execution against Ethelbert Watts for the sum of $10,916.66, being the amount unpaid on his subscriptions ; (3) in not awarding execution against Ethelbert Watts for the sum of $4,500 at least. Hill v. Stetler, 127 Pa. 145 ; Maloney v. Bruce, 94 Pa. 249; Van Horn v. Corcoran, 127 Pa. 265; Bement v. Phila. Brick Machine Co., Limited, 5 W. N. 58. Cock v. Bailey, 146 Pa. 326 ; Rehfuss v. Moore, 134 Pa. 462; Laflin v. Steytler, 146 Pa. 434; Lauder v. Logan, 123 Pa. 34.
157 Pa. 98Mulligan's Estate (1893)
Appeal, No. 266, Jan. T., 1893, by Henry S. Cattell, assignee for benefit of creditors of James Mulligan, Jr., from decree of O. C. Phila. Co., July T., 1890, No. 182, sustaining exceptions to adjudication of account of James Mulligan, Jr., executor of James Mulligan, Sr., deceased. Adjudication of executor’s account. The facts appear by the opinion of the Supreme Court. The auditing judge, Ferguson, J., corrected the account by-adding commissions which the accountant had refused to charge, and awarded two thirds of the balance to appellant, assignee of accountant for benefit of the creditors. On exceptions, the court, in an opinion by Hanna, P. J., 1 Dist. R. 511, struck out the commissions and awarded one third of the balance to Rose Cooney, late Mulligan, and one third to accountant. Errors assigned were (1) awarding any part of the assets of the business enterprises which were bequeathed to James Mulligan, Jr., by his father’s will, to Rose E. Cooney, his sister; (2) in not confirming the award by the auditing judge to the assignee of commissions to which the assignor was entitled as executor of his father’s estate. Perry on Trusts, 4th ed., § 818 ; Stewart’s Ap., 110 Pa. 410 ; Day v. Ins. Co., 111 Pa. 507; Act of April 15, 1845, P. L. 460 ; Purd. 746, § 30. Holman’s Ap., 24 Pa. 174 ; Witman’s Ap., 28 Pa. 376 ; Robinett’s Ap., 36 Pa. 191; Stearly’s Ap., 38 Pa. 525; Smith’s Ap., 47 Pa. 424.
157 Pa. 103Fredericks v. Northern Central R. R. (1893)Verdict and judgment for defendant
Appeal, No. 280, Jan. T., 1893, by-plaintiff, Joseph A. Fredericks, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1889, No. 305, on verdict for defendant. Trespass for personal injuries. Before Arnold, J. At the trial, it appeared that on July 17, 1889, plaintiff was a passenger on defendant’s train from Hickory Swamp Colliery to Shamokin.
157 Pa. 133Hamberger v. Marcus (1893)Rule for judgment absolute
Appeal, No. 311, Jan. T., 1893, by garnishee, Bernard Corr, from judgment of C. P. No. 3, Phila. Co., March T., 1892, No. 15, on verdict for plaintiff, Philip Hamberger, in case of Philip Hamberger v. Julius Marcus. Rule for judgment 'against garnishee on answers in foreign attachment. The material answers to the interrogatories were as follows: “ I have had no transactions with defendant, Marcus, saving that I have employed him from time to time to sell for me liquors.
157 Pa. 140Broadnax v. Cheraw & Salisbury R. R. (1893)Verdict and judgment for plaintiffs
Appeal, No. 210, Jan. T., 1893, by defendant, from judgment of C. P. No. 4., Phila. Co., Dec. T., 1880, No. 8, on verdict for plaintiff, Jane Broadnax et al. Foreign attachment in case on general average bond. Before Thayer, P. J. (Reported below in 1 Dist. R. 251; also on former writ in 109 Pa. 432.) At the trial, the general average bond was given in evidence. It was as follows: “ Whereas, The schooner ‘ Mattie A. Hand,’ of Philadelphia, whereof Joseph Hearon is master, having on board a cargo of merchandise, sailed from the port of Philadelphia, on or about the ninth day of January, A. D. 1880, bound for Charleston, S. C., and in prosecution of her said voyage on the twenty-first day of January, 1880, at 1 p. M., Phoenix Island Lighthouse bore N. E. four miles distant with the wind from the N. E. and a chopping sea on, which caused the vessel to labor heavily, when upon sounding the pumps found that she had sprung a leak at the rate of about one hundred strokes per hour, and which gradually increased to about four hundred strokes per hour, with the pumps kept going all the time in order to keep her free. At 7 p. m. Chincoteague Lighthouse bore W. N. W., and as it was deemed unsafe to continue on the voyage, after due consideration bore up for Norfolk for the general benefit, where we finally arrived on the 23d, at 1.30 P. M. “The said vessel after having proceeded on her voyage, and on the 12th of April, 1880, at 1 p. M., Cape Henry Lighthouse bore W., about eight miles distant, wind W. N. W., and under all sails and a chopping sea, she again sprung a leak at the rate of five hundred strokes per hour, which continued to increase, when finding it unsafe to continue on the voyage finally bore up at 2 P. M. and arrived back at Hampton Roads on the 13th inst., at 9 A. M. On the 14th inst. she arrived at Norfolk at 6.80 P. M. for repairs. The said vessel being now under the command of W. Nelson Jarvis, who is master and agent for all concerned. “ By which means certain losses and expenses have been incurred, and other expenses hereafter may be incurred in eon-sequence thereof, which (according to the usages of the port of Charleston, S. C.) may constitute a general average to be apportioned on the said vessel, her earnings as freight, and the cargo on board; or a special or particular average or charge upon said vessel, cargo and freight separately. Now we subscribers, being owners, shippers, consignees, agents or attorneys of owners, shippers, or consignees of said vessel or cargo, or underwriters on said vessel, cargo, or freight, do hereby, for ourselves, our executors and administrators, and our principals, generally and respectively, but not jointly, nor one for the other, covenant and agree to and with each other, and also separately to and with the said master and agent for all concerned in the said vessel, cargo, and freight; that the loss and damage aforesaid, and such other incidental expenses thereon, as shall be made to appear to be due from us, the subscribers to these presents, or our principals either as owners, shippers or consignees of said vessel or cargo, or as underwriters upon said vessel, cargo, or freight, shall be paid by us respectively, according to our parts of shares in the said vessel, her earnings as freight, and her said cargo or our interest therein or responsibility therefor, that such losses and expenses be stated and apportioned in accordance with the established laws and usages of this state in similar cases, by Jno. R. Heriot, adjuster of marine losses, and that we will severally furnish them on request with all reasonable information and accounts. And for the true performance of all and singular the premises, we do severally hereby bind ourselves,” etc. Plaintiffs proved the execution of the bond and that the adjustment was made in accordance with the laws and usages of the port of destination, and, the same being admitted by the court, rested. Defendant gave evidence to show that the vessel sprung a leak under circumstances which would not cause such results to a seaworthy vessel, among other evidence the following extract from the log-book : “ Wednesday, January 21st, 1880. — Comes in fine weather; light N. W. winds. At 6.30 A. m. got under way and proceeded to sea, all sail set. At 8 A. m. off Hen and Chickens. Stowed the anchor, set the watch and tried the pumps ; wind hailing to North. At 1 P. m., Phoenix Island, bearing N. W. 4 miles distant. Tried the pumps ; found the vessel making srtme water, about one hundred strokes per hour. Middle part, light E. winds and clear weather. At 7 p. M., Chincoteague, bearing to N. W., 11 miles distant; found the leak increasing to about four hundred strokes per hour. Winds E., S. E.; threatening weather ; sharp sea. Vessel rolling heavy. Bore up for Norfolk. Pumps kept going all the time. Crew employed. So ends this day.” Plaintiff offered evidence in rebuttal; among other evidence the depositions of the master of the vessel in part as follows: “I put to sea on the 21st of January, 1880. After getting to sea the wind canted around to the eastward about nine o’clock in the morning. It breezed up right away and thickened up and commenced a storm ; there was a short chopping sea, and being kind of quartering on the vessel it made her roll pretty heavily. There was nothing at that time in the weather or in the condition of the vessel to give me any anxiety. I continued on my voyage, and at twelve o’clock noon that day I tried my pumps and found my vessel was making a little water. I think it was eight o’clock that night, or it might have been twelve o’clock that night — it has been so long now that I can’t remember — that the wind canted to the southward and eastward, and the vessel began to increase making water. I went on my voyage until I got up as far as Chincoteague; I think I got to Chincoteague about eight or twelve o’clock tbat night. When I got to Chincoteague I found the vessel making about four hundred strokes an hour. We had been trying the pumps then right along since dark, and were paying particular attention to see whether she was leaking or was not leaking. The weather at this time was stormy, the wind easterly and every appearance of a gale of wind setting in.” Rulings on evidence, assigned for error, are recited in the opinion. The ninth assignment of error was the admission of an affirmative answer to a question similar to the question in the eighth assignment. The court charged in part as follows : “ This is not a bond of such a binding character that it prevents the defendants from setting up any good and lawful defence which they may have to the payment of the money, but it is a bond or agreement which binds them absolutely to the payment of their share of the loss, provided it was a proper case for general average, as between the owners and the consignees of the cargo. If it was a proper case for general average, the defendants are bound by this adjustment. This adjustment has not been impeached, and by the law of the sea anywhere throughout the world, this adjustment is binding upon all parties in interest, if made by a competent officer and if it is unimpeached for fraud or mistake. “ Therefore, if you should be of the opinion that this was a proper case for a general average to be made, you ought to find a verdict for the plaintiffs for the amount awarded by the adjuster, with lawful interest thereon. “ The important question in the case, therefore, is whether this was a proper case for a general average as between the owners and these defendants. The defendants allege that it was not a proper case for general average because the vessel, as they say, was unseaworthy at the commencement of her voyage, and that the necessity which arose to put into the port of Norfolk for the purpose of repairs arose, not from the perils of the sea, but from the unseawortbiness of the vessel before she began her voyage. If that position is well taken and is proved to your satisfaction, you are to find a verdict for the defendants. If it is not proved, you are to find a verdict for the plaintiffs. “ There is in all contracts relating to the carriage of goods by sea, in reference to which questions arise between the owners of the ship and the owners of the cargo, an implied contract that the vessel shall be seaworthjr at the commencement of her voyage. This means that the vessel is competent to resist ordinary attacks.of wind and waves, and is completely equipped and manned for the voyage with a sufficient crew and with sufficient means to sustain them, and with a captain or master of general good character and nautical skill. It is also an implied condition that the goods and the tackle of the ship, etc., shall be properly stowed. In order to be seaworthy the vessel must be sound, staunch and strong, competent to resist all ordinary action of the wind and waves, and to prosecute her voyage without damage to the cargo. A seaworthy vessel is such a vessel as is able to encounter, without serious damage, all the ordinary perils of the sea. “ The question in the ease is whether the ‘ Mattie A. Hand ’ was a vessel of this character when she commenced the voyage from Philadelphia to Charleston. If you find that she was, you ought to find a verdict for the plaintiffs. If you find that she was not, you ought to find a verdict for the defendants. If you find for the plaintiffs, you ought to find what is awarded them by the adjuster in the adjustment of the average, with interest. “ I have already told you that a general average fairly settled at the port of destination, according to the usage and law of the port, is binding and conclusive as to the items, as well as the apportionment thereof upon the various interests, if it was a proper case for general average. “ This vessel sailed from this port on a voyage to Charleston, the principal part of her lading consisted of railroad iron, of which she had some five or six hundred tons on board, consigned to the defendants in this case. Everything seems to have gone right on board until she had gotten outside the capes of the Delaware, when, from some cause or other, the ship began to leak, and the leak continued to increase, and finally it became so great that the captain considered it his duty to put into the port of Norfolk for repairs. He sailed into the port of Norfolk, where the ship underwent repairs. After the repairs were made the ship started on her voyage again, and she began to leak again after she got outside of the capes of Virginia. They returned again to Norfolk, had the leak stopped, then resumed their voyage, and arrived safely at Charleston, delivering the railroad iron consigned to the defendants, upon their giving the general average agreement to which I have referred. “ The time to which jmu are to look in ascertaining the seaworthiness of the vessel, and the time to which the implied agreement of seaworthiness to which I referred relates, is the time preceding the commencement of the voyage. If the ship is tight and strong and is seaworthy when she begins her voyage, and becomes unsea worthy afterwards from the perils of the sea, of course the claim of the owners to their general average is not affected by that fact, because the owners do not 'warrant the continued seaworthiness of a vessel against all weather and all the accidents of the sea. They fulfill their obligation completely if she is seaworthy when she begins her voyage, and that is the point to which you are to look in this ease. If this vessel was seaworthy when she began her voyage from Philadelphia, you ought to find for the plaintiffs. If she was not seaworthy when she commenced this voyage, you ought to find a verdict for the defendants.” “You will see from what I have said that the whole case turns upon the question whether this was a proper case for a general average to be made, and whether it was a case in which the expenses of these repairs to the ship ought properly to be charged upon all the parties in interest, ship, cargo and freight, or whether it was not a case for a general average. That question depends upon the single central question of all, whether this vessel was seaworthy, in the sense in which I have defined a seaworthy vessel, when she left the port of Philadelphia. If you find that for the plaintiffs, you ought to find a verdict for the plaintiffs. If you find it for the defendants, you ought to find a verdict for the defendants.” Defendant’s points were among others as follows: “ 4. That the signing and delivery of the average bond or agreement by the president of the company defendant and the adjustment of Mr. Heriot did not of themselves make out a ease entitling the plaintiff to recover from the defendant. Answer: To which I answer they do not make out a case unless the case was a ease for average. If the injury received by the vessel on her voyage was caused by the perils of the sea, and was not due to her unseaworthiness before she commenced her voyage, the plaintiff is entitled to a verdict for the proportion of the loss with which the defendant is charged in this adjustment, and with interest thereon. By the maritime law of the world a general average fairly settled at the port of destination according to the usage and law of the port is binding and conclusive as to the items as well as the apportionment thereof on the various interests, provided it was a proper case for general average.” [1] “ 5. That in order to make out a case against the defendant, the plaintiff must show not only the execution of the average bond or agreement, but also that the expenses were incurred and their amount, and that they were caused by the perils of the sea. Answer: In answer to this point I have to say that the uncontradicted evidence is that the vessel became so leaky after getting outside of the capes of the Delaware that she was obliged to be put into Norfolk for repairs, and that she was there repaired. The general average, which was settled and adjusted by the adjuster, agreed upon in the general average agreement at the port of destination, is conclusive of the items and the apportionment also on all the parties in interest, and there is no evidence in this case to impeach this adjustment of the general average.” [2] “ 6. That the plaintiffs, in their case in chief, having given no evidence that the expenses claimed for had been paid, and that they were such as constituted a general average claim against the defendant, the verdict must be for the defendant.” Refused. [3] “ 7. That the signing of the average agreement and the adjustment did not of themselves bind the defendant to pay the amount fixed thereby as its share of the expenses, and the plaintiffs, in order to recover, must make additional proof that the expenses had been paid, and that they constituted a proper claim as general average.” Refused. [4] “ 8. That upon the case as presented by plaintiffs in chief, they have not proved their claim, and the verdict should be for defendant.” Refused. [5] 9. Request for binding instructions. Refused. [6] Errors assigned were (1-6) instructions, quoting them, (7-10) rulings on evidence, assignments 8 and 9 not quoting the evidence. Although there may be a prima facie presumption of seaworthiness and the burden of proof is upon the insurer to prove the contrary, yet where it appears from the undisputed evidence in the case that the vessel sprung a leak or became damaged under circumstances which would not cause such results to an ordinary seaworthy vessel, the burden of proof is placed upon the vessel-owners to show that she was seaworthy: 1 Parsons on Marine Insurance, 367 ; Prescott v. Ins. Co., 1 Wharton, 399; Dupont v. Vance, 19 Howard, 162; Paddock v. Ins. Co., 11 Pick. 237; Miller v. Ins. Co., 2 McCord, 336 ; The Gulnare, 42 Fed. R. 861; Watson v. Ins. Co., 2 W. C. C. R. 480: Coles v. Ins. Co., 8 W. C. C. R. 159; Deshon v. Ins. Co., 11 Metc. 207. R. R. v. Broadnax, 109 Pa. 440; Myers v. Girard Ins. Co., 26 Pa. 195; Steimetz v. U. S. Ins. Co., 2 S. & R. 292; Armroyal v. Union Ins. Co., 2 Bin. 394.
157 Pa. 153Lineoski v. Susquehanna Coal Co. (1893)Rule to take off nonsuit discharged
Appeal, No. 403, Jan. T., 1892, by plaintiff, Annie Lineoski, individually and as administratrix of Michael Lineoski, deceased, from order of C. P. Luzerne Co., Nov. T., 1886, No. 278, refusing to take off judgment of non-suit. Trespass for death of plaintiff’s son. At the. trial, before Woodward, J., it appeared that, on Dec. 18, 1885, a break occurred in one of the chambers of defendant’s mine, and a great quantity of quicksand and water flowed in, engulfing twenty-six miners whose bodies were not recovered. According to plaintiffs’ theory of the case the roof of the chamber was rotten and weak and had not been sufficiently propped and timbered, and that in consequence of these defects the roof had caved in. The defendant’s theory was that the gangway had penetrated very near the bottom of a pit hole worn in the overlying strata by erosion, which was filled with water and quicksand in great volume, and that the pressure had crushed in the rib or side of the gangway. Further facts appear by the opinion of the Supreme Court and of the court below. When G. M. Williams, a witness for plaintiff, was on the stand, defendant’s counsel made this offer: “We offer a copy of that map, printed from the same plate, with the same marks on it, identical in every respect except that the map we offer has the gangways and counter gangways represented on it colored. Objected to as not cross-examination and incompetent.” The Court: Witness having testified that the map produced by defendant’s counsel is an exact copy or duplicate of the map already in evidence, the court allows this map of defendant to be used during the trial, for purposes of convenience. Exception. [1] J. C. Brader, a witness for plaintiff, was asked: “ Q. Taking into consideration the testimony you have heard upon the witness-stand here in this ease, what, in your opinion, from your knowledge of this mine and the situation generally, inside and out, was the cause of this caving in of the mines ? ” Defendant objected that the witness was not qualified to give an opinion on this subject. The Court: The witness, to be competent as an expert, must be shown to have some particular knowledge on the subject he is called upon to speak about, over and above that possessed by ordinary men. In this case the witness does not claim to be a scientific mining engineer nor a practical miner, nor to have any particular familiarity with these mines as to their workings inside. I do not think he is in any sense of the word an expert. Objection sustained, and exception. [2] Daniel Bonewitz, witness for plaintiff, was asked : “ Q. Plaintiff’s counsel: At this place we speak of in this air shaft, what was the thickness of the rock and slate overlying this Ross seam?” Objected to. The Court: I understand the witness to say that he knows about the thickness of the cover of this vein at a point some 900 feet away from the point where the accident occurred. It is too remote. Exception. [B] The same witness was asked: “ Q. State whether or not in jrour opinion, knowing that culm up'on top, from your practical knowledge of mining, your experience of twenty-five years, this was a safe place to have permitted men to work in — right at that point where the accident happened, or beyond it over at the point where these men were inclosed — with that danger there before them ? ” Defendant’s counsel objected to the question: (1) That the facts on which the witness is asked to give his opinion are not facts known to himself, but are facts which it is alleged have been testified to by witnesses, and that witness has not heard all of this testimony, and that there is a conflict in the testimony with regard to the facts stated in the question. (2) That this is not a subject-matter for expert testimony at all. (8) That the testimony is entirely immaterial, incompetent and irrelevant. The Court: It does not seem to me that we have sufficient data in this case thus far, to justify the calling of experts— especially an expert who is a miner simply, who has no scientific knowledge beyond that of an ordinary miner, nor any practical knowledge from actual experience in these particular mines. The question for the jury ultimately, if it gets there at all, is whether, under the evidence, it was negligence to allow work to go on there. [4] Frederick Winters, a witness for plaintiff, was asked: “ Q. What brought down the roof here in this mine where the accident happened, if you know? ” Defendant objected: (1) That the witness has not testified that he was in the place where the accident occurred. (2) That he has not testified to any knowledge that would entitle him to give an opinion on the subject. (8) That it has not been proven in any way that he is an expert competent to give an opinion. The Court: That involves again the question of experts. If it is a question at all for the jury, it is a question for them under all the evidence, whether it was negligence on the part of the defendant company in the existing state of things there to go on with the mining. [5] A. J. Gallagher, witness for plaintiff, was asked: “ Q. Whether mining coal at a place where there is a synclinal, and especially where there is a sand bank, as described by the witnesses in this case, with a culm bank overhead and water percolating through the sand — whether mining at such a point in a mine is more than ordinarily dangerous? ” Objected to as follows : (1) That the facts upon which the hypothetical question is based have not been proved in this case. (2) That the witness has not shown the qualifications of an expert necessary to enable him to testify on this subject in this particular case. (3) The case itself is not the subject of expert testimony. The Court: I do not think that this evidence is competent or relevant. The question in this case is whether the company were negligent in going on with the mining operations after certain things had happened, and while they were happening at that point. It is not a question involving that expert learning which is referred to. Nor does the hypothetical question stated to the alleged expert seem to be based upon any clear testimony in the case, in our judgment. Objection sustained, and exception. [6] The same witness was asked this question: “ Q. You have sat listening for two days to the testimony as delivered here. Now take this mine of the Susquehanna Coal Company just as it has been described by these witnesses: 1. You have beard the witnesses testify that they go into a slope running down a distance of about one thousand feet — you may refer to the map before you — then they go into what is called a tunnel of about three hundred feet into the Iloss seam, then they travel along this gangway a distance of nearly eighteen hundred feet until they strike what they call the sjmclinal there, as you can see upon the map; they also state that they make a bend —that the gangway turns around at the foot of this anticlinal there; you have heard the witnesses testify that they were working for several months in there previous to the accident, that these timbers were breaking, that the pillars were bursting and. breaking, and that in some places the roof was coming down ; that right overhead large streams of water, some half as big as your arm, were coming through, and that this water was muddy and carried with it lots of sand. You also heard one of the witnesses testify that he drove up one place near into the fifth counter and drove it right up into tho sand or into the clay; you also heard the altitude — that is the height above the level of the sea — described by the mine inspector. You also heard the witnesses testify that overhead, overlying this place where the timbers were breaking and the roof cracking and the muddy water coming in — indicating surface water —that there was a heavy body of culm covering three acres, said culm having a weight of about two millions of tons, also that there was a sand bank at one end of this culm bank and right over the point where these men were working; and that previous to the dumping of this culm bank there, there was a natural channel of water running down this ravine, that the land itself was boggy and swampy and that when they put the culm on it choked up this natural water course. Having listened to all this testimony, state what, in your judgment, was the cause of the breaking in of tfre roof at this point where the accident happened.” Defendant’s counsel objected on the ground: (1) That the statement of the counsel as to what has been proved is eminently inaccurate, there being no such state of facts proved by the testimony in this case. (2) Because this is not a question for expert testimony. (3) Because the witness has not exhibited any such qualifications as would entitle him to answer this question as an expert. The Court: The question as to the cause of this accident is quite a distinct one. The question submitted to the witness is so complicated that I cannot say that it is competent in its present form. Because it involves not only a question as to the negligence by piling up culm on the outside, but also as to the negligence of mining after warning received inside of the mines, where the miners engaged in the work were just as much experts, if not more so than the witness. As a whole, therefore, I regard the question as incompetent. Objection sustained and exception. [7] The same witness was asked: “Witnesses having testified and you having heard them, that for some months previous to the accident in question, and up to within three days of the same, they observed water in places coming down from the roof of the gangways and chamber, of a muddy nature, the props and timbers split and cracked in several places along the counters ; the roof cracked and lowering, the pillars and sides crushing in; that on the surface over this mining operation was a depression in which water occasionally ran ; that the land itself was wet and soggy, and that a culvert was built to carry off the water; that about three acres of this surface depression had deposited upon it about 2,000,000 tons of culm, about forty feet high; that the culvert was covered over by this culm; — state whether or not, under these circumstances, the ordinary risks of mining, in the vicinity, and almost immediately underneath this culm-bank in the mines below, would or would not be increased ; and also what, under the circumstances, would be the natural and probable result of mining in such a place, and under such a weight of culm ? ” Objected to as follows: (1) Because the witness has not been shown to have the qualifications necessary for an expert to give an opinion on the question^ proposed. (2) Because the facts assumed in the question have not been established by the testimony. (3) Because all the alleged facts were open to the inspection of the workmen in the mines and they were as competent to judge of danger as the company. (4) Because the question is not one upon which expert testimony is competent, as it does not require peculiar skill or knowledge to answer it. The Court: In order to entitle the witness to testify as an expert, it must first be shown that he has acquired peculiar skill and scientific knowledge upon the subject; for the term expert as used in the law implies both superior knowledge and practical experience in the art or business or profession involved in the case. Furthermore, the general rule in regard to the admission of expert testimony, we understand to be this: Where the facts of a case are in dispute or have not been fully ascertained at the trial, it is error to ask an expert who ha.s heard a portion of the evidence his opinion upon the case, and this although he may be asked such a question in a similar case hypothetically stated. For the reason that we do not think the witness on the stand is such an expert as is required by the rule stated by us, and for the other reason that the offer is not made upon an hypothesis of ascertained facts — the evidence not being closed and the subject-matter being in dispute — the objections are sustained, the testimony is rejected, exception is noted and bill sealed for the plaintiff. [8] The same witness was asked: “ Q. After hearing the testimony of the witnesses, that, for five or six months, and up to within three days of the time of this accident, in this mine, at a point three hundred feet to within twenty yards of the place where the accident is located, the props and timbers were breaking, the pillars crushing and the roof split and lowering, so that at times the cars had to be barred out from the working, and as testified to by Mr. Brader, assistant superintendent, that at a short distance from the cave-in a bore-hole was put down, which showed about fifty feet of rock or slate covering over the vein of coal in which the accident happened; and overhead where the accident happened and these men were working, the surface of the ground showed a depression surrounded by hills, through which depression water used to run at times and in which depression a natural channel was formed for the water to run. In this depression and overhead where these men were working, about two millions of tons of culm were piled in an area of three acres. The water was choked off and the natural channel was choked up and the water made its way into the culmbank, and down into the surface — state whether or not, in your opinion, under this state of facts, was it prudent or otherwise for the company to permit the portion of the mine underneath the said eulm-hean to be operated at the time of the accident.’’ Defendant’s counsel made the same objections to this question as was made to the last. The Court: In our opinion it is the duty of the court in this case to admit any evidence that throws light on the condition of those mines at the time of the disaster, and then if the case goes to the jury, it will be for the jury to determine whether it was prudent for the company to prosecute their mining in that condition of things. All evidence which throws light on that subject, of course, is admissible ; but the testimony of an expert is not admissible to establish a fact deducible from evidence, which the jury is just as competent to deduce as the witness. You may show all the facts and circumstances indicative of negligence, but you may not call an expert on any particular subject, unless you clearly establish the necessity, first, for an expert on that subject; and, secondly, that the witness proposed, has made a study of that particular subject, such as qualifies him bejmud an ordinary man or juryman, to give his opinion in regard to it. With these views, we sustain the objection and note an exception for the plaintiff. [9] The court entered a compulsory nonsuit, in an opinion by WOODWAKD, J., as. follows : “For several months before the accident in this case, the miners and workmen in certain chambers of' this mine were troubled with an inflow of what is claimed to have been surface water. The roof of the mines had cracked to some extent, and the water came in through these openings, as well as along the sides of the chambers. Some of the props were broken by the settling of the roof. There were indications from time to time, of what is known as a ‘ squeeze,’ so that it was difficult to move the cars over their usual route. Complaints were made to the mine foreman, but he did not apparently attach much importance to these indications, nor regard them as pointing to danger to those engaged in mining and removing the coal. The men continued at their work until the morning of the 18th of December, 1885, when the flood of water, earth and sand occurred, which resulted in the entombment and death, among others, of the driver boy, Max Lineoski, whose mother is the present plaintiff. “ It has been established by several decisions of our Supreme Court, in actions brought to recover damages resulting from tlie alleged negligence of the owners and operators of mines, that the mine foreman, or boss, who has general charge of the management of the work, is, in contemplation of law, a fellow workman with those who perform the actual labor of mining and removing the coal. “ When,, therefore, an owner or operator of mines has employed a competent mine foreman, and accident results to a workman in the mines from the negligence of such foreman, the common employer is not held liable in damage for the injury arising from the accident. Such negligence is held to be one of the necessary risks of the business which the workman takes upon himself. “ [Applied to the present case, this doctrine of the law is fatal to the plaintiff’s claim unless there is something else established by the evidence than simply the dangerous character of the mines, and notice of the danger conveyed to the mine foreman but not to the common employer.] [10] “ [We are unable to find in the testimony any proof of notice to the Susquehanna Coal Company of the dangerous condition of their mines at the point in question.] [11] The mine boss had notice, but the company had not such notice as the law requires to render them liable in this action. Nor are we able to see in what respect the question is a different one than it would have been if presented before the act of 1885. We are unable to perceive that the mine foreman, under the statute, stands in any different relation to his fellow workman then he did under the act of 1870. The cases of Waddell v. Simoson,, 112 Pa. 567; of Redstone Co. v. Roby, 115 Pa. 364, seem to us applicable to the question now presented, and to be conclusive of it. “ As to the other question involved, that of the alleged negligence of the company in depositing their culm, we feel bound to hold : [That want of ordinary' care has not been established by the evidence : (1) For the reason that it has not been clearly shown that the deposit of the culm was the cause of the accident. (2) It has not been shown, by the production of any competent testimony, that, if the deposit of the culm at the place in question was the cause of the accident, such deposit was negligently made, in view of the thickness of the cover at or near that point and of the usual custom of disposing of the culm produced in the business of mining coal. (3) It does not appear from any evidence in the case at what point of time the culm, which covered three acres, was deposited at or near the location of the accident, nor whether it was before or after the employment of the men working in the mines on the 18th of December, 1885.] [12] I refer to the case of Wagner v. Chemical Company, [147 Pa. 475,] recently decided by our Supreme Court, in which Hevdrick, J., said : ‘ It is a well settled rule that an employee will be deemed to have assumed all the risks naturally and reasonably incident to his employment, and to have notice of all risks which, to a person of his experience and understanding, are, or ought to be, open and obvious. This is a reasonable rule, for, when a man seeks employment in any particular department, of either industrial or intellectual activity, he thereby represents himself to be qualified by the necessary experience or learning, as the case may be, for the performance of the duties which he proposes to assume, and such experience or learning necessarily brings a knowledge of the ordinary risks of the employment.’ “ The motion for a compulsory nonsuit must prevail and is now granted.” Errors assigned were (1-9) rulings on evidence as above ; (10-12) portions of opinion as above; and (13) in entering non-suit and refusing to take it off; quoting bills of exceptions and portions of opinions in brackets. The case of Waddell v. Simoson, 112 Pa. 567, and Redstone Coal Co. v. Roby, 115 Pa. 364, relied upon by the court below, and all the mine cases in the books, from the case of Lehigh Valley Coal Co. v. Jones down to the present time, wherein the master is relieved from liability by reason of the employment of a competent mine foreman, refer solely to a condition of things in a mine where accidents happen through dangers that originate from some defect that is not noticeable or is of recent origin. In our ease the danger was open and notorious for months before the accident. The .general superintendent was the direct representative of the company, and knew that this mine was likely to cave in, if he had any judgment at all. Rule 24, act of 1885, P. L. 239, differs from the law of 1879, in which the former rulings of the court in the cases of Waddell v. Simoson, 112 Pa. 567; Redstone Co. v. Roby, 115 Pa. 364, were rendered, which held the mine boss a fellow servant of the mine worker. The master is. bound to furnish a reasonably safe place for his servant, and to know that appliances once safe may become unsafe: Schall v. Cole, 107 Pa. 1; Baker v. R. R., 95 Pa. 211; Green & Coates St. Pass. Ry. v. Bresmer, 97 Pa. 103; Patterson v. Pittsburgh R. R., 76 Pa. 389; Tissue v. B. & O. R. R., 2 Cent. R. 596; Lewis v. Seifert et al., 116 Pa. 647; Wharton on Negligence, par. 210; Wagner v. Chemical Co., 147 Pa. 475; Trainor v. Philadelphia & Reading R. R., 187 Pa. 148; P. & N. Y. Canal & R. R. Co. v. Mason, 109 Pa. 301; Hough v. Ry., 100 U. S. 214; Coombs v. Cordage Co., 102 Mass. 585; Spelman v. Fisher Iron Co., 56 Barb. 151; Sullivan v. Mfg. Co., 113 Mass. 396; R. R. v. Doyle, 49 Texas, 190; Ross v. Walker, 139 Pa. 42. An employer is bound to furnish his employee with such tools and appliances as with ordinary and reasonable care may be used without danger: Coal Co. v. Hayes, 128 Pa. 294; Patterson v. Ry., 76 Pa. 389; Allison Man’f Co. v. McCormack, 118 Pa. 519; Ship Building Works v. Nuttall, 119 Pa. 158. It was the duty of the company to notify appellant’s son of this dangerous place in the mine. As he was inexperienced and a minor, the necessity for notice was greater than under ordinary circumstances : Webster Coal Co. v. Marsden, 8 Cent. Rep. 198; Coombs v. Cordage Co., 102 Mass. 585; Spilman v. Fisher Iron Co., 56 Barb. 151; Sullivan v. Mfg. Co., 113 Mass. 896 ; R. R. v. Doyle, 49 Texas, 190 ; Green & Coates St. Pass. Ry. v. Bresmer, 97 Pa. 106; Cayzer v. Taylor, 10 Gray, 274; Seaver v. B. & M. R. R., 14 Gray, 466; Gilman v. R. R., 10 Allen, 233; Parkhurst v. Johnson, 50 Mich. 70; Swoboba v. Ward, 40 Mich. 420; Baker v. Allegheny R. R., 95 Pa. 211 ; Smith v. Oxford Iron Co., 42 N. J. L. 467; O’Connor v. Adams, 120 Mass. 427 ; Fort v. R. R., 17 Wall. 544; Ross v. Walker, 139 Pa. 42. Obviously, an employer may perform ail his duties in respect of his machinery and his employees through agents, and will in such a case be responsible for their acts. A corporation stands on the same footing: Ardesco Oil Co. v. Gilson, 63 Pa. 151; Michigan C. R. R. v. Dolan, 32 Mich. 510; Corcoran v. Holbrook, 59 N. Y. 517; Crispin v. Babbitt, 81 N. Y. 516 ; Mitchell v. Robinson, 80 Ind. 281; Flike v. Boston R. R., 53 N. Y. 549 ; Ryan v. Bagaley, 50 Mich. 179; Tyson v. R. R., 61 Ala. 554; Harper v. R. R., 47 Mo. 567; Woodward v. Shump, 120 Pa. 469 ; Lee v. Woolsey, 109 Pa. 124. The court was clearly in error in rejecting the testimony of all the witnesses, including the expert called by plaintiff, on the questions as to the cause of this accident, and the probable result from the condition and working of this mine under all the testimony offered: Wh. Ev. §§ 444, 452; Fenwick v. Bell, 1 C. & K. 312; Malton v. Nesbit, 1 C. & P. 72; Lane v. Wilcox, 55 Barb. 615; Seaver v. R. R., 14 Gray, 466; Clark v. Willett, 35 Cal. 534; D. & C. S. T. Co. v. Starrs, 69 Pa. 41; First Nat. Bank v. Wirebach, Ex’r, 106 Pa. 44; Minnequa S. Imp. Co. v. Coon, 10 W. N. 502; Lewis v. Seifert, 116 Pa. 628. The ease was for the jury : Iron Co. v. Shaffer, 8 Atl. R. 204, Christner v. Coal Co., 146 Pa. 67; Rummell v. Dilworth, 111 Pa. 371; Pa. R. R. v. Coon, 17 W. N. 137 ; Schum v. P. R. R., 107 Pa. 11. The rejection of the opinions of witnesses was proper: 1 Greenleaf, Evidence, § 440. The question of the competency of the witness was for the court, and the discretion of the court is not reviewable, unless for gross abuse: Minnequa Springs Improvement Co v. Coon, 10 W. N. 502; Allen’s Ap., 99 Pa. 201; First Nat. Bank of Easton v. Wirebach’s Executor, 106 Pa. 37 ; Franklin Fire Ins. Co. v. Gruver, 100 Pa. 266; Hartman v. Ins. Co., 21 Pa. 466 ; Reber v. Herring, 115 Pa. 599; Coyle v. Com., 104 Pa. 117 ; Greenleaf, Evidence, § 440. When an owner or operator of mines has employed a competent mine foreman, and accident results to a workman in the mines, from the negligence of such foreman, the common employer is not held liable in damages for the injury arising from the accident. Such negligence is held to be one of the necessary risks of the business which the workman takes upon himself: Waddell v. Simoson, 112 Pa. 567; Redstone Coke Co. v. Roby, 115 Pa. 364. Want of ordinary care lias not been established by the evidence : (1) For the reason that it has not been clearly shown that the deposit of the culm was the cause of the accident. (2) It has not been shown, by the .production of any competent testimony, that, if the deposit of the culm at the place in question was the cause of the accident, such deposit was negligently made, in view of the thickness of the cover at or near that point and of the usual custom of disposing of the culm produced in the business of mining coal. (3) It does not appear from any evidence in the case at what point of time the culm, which covered three acres, was deposited at or near the location of the accident, nor whether it was before or after the employment of the men working in the mines on Dee. 18, 1885. But if it be granted that the evidence shows that sufficient care was not taken to prop the roof and that therefore the accident occurred, the case is within the line of decided cases in which owners are held not liable when the working of the mine is committed to the care of the official that the law requires them to employ: Redstone Coke Co. v. Roby, 115 Pa. 364; Waddell v. Simoson, 112 Pa. 567. The negligence of the mine boss is that of a fellow servant which entails no liability on the company. As to a driver boy the mine boss is a fellow servant: Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; Delaware & Hudson Canal Co. v. Carroll, 89 Pa. 374; Keystone Bridge Co. v. Newberry, 96 Pa. 246; Reese v. Biddle, 112 Pa. 72. The deceased was fifteen years of age, and therefore must be presumed to have had capacity to be sensible of danger. This presumption will stand until overthrown by proof of an absence of such discretion: Kehler v. Schwenk, 144 Pa. 348. Furthermore this is not a suit by an infant injured, but by a parent who allowed a son to enter a dangerous employment and Avho must, therefore, assume the risks incident to the business: McCool v. Coal Co., 150 Pa. 641.
157 Pa. 174Hoffman v. Bloomsburg & Sullivan R. R. (1893)Plaintiff appealed
Appeal, No. 329, Jan. T., 1892, by plaintiff, John W. Hoffman, from judgment of C. P. Columbia Co., Sept. T., 1887, No. 34, on verdict for plaintiff. Appeal from report of jury assessing land damages. At the trial, before Ikeler, P. J., it appeared that plaintiff owned a tract of land lying on both sides of Big Fishing creek. The creek was the dividing line between Orange and Mount Pleasant townships. Plaintiff’s land on the west side of the creek was a strip about twenty feet wide. On the east side of the creek he owned several dwellings, a barn, a sawmill and a gristmill. Sometime in 1883 plaintiff signed the following written agreement, witnessed by H. J. Conner but not dated: “ I hereby agree in behalf of a railroad to be constructed along the valley of the Big Fishing creek 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 and Sullivan Railroad or 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 light of way of lawful width through my land in Orange township, Columbia county, Penna. The damages to be assessed when the road is located and the amount of said damages to bo paid in stock in said railroad. Cost of fencing not included in damages provided no damage is done my buildings, race or water power.” The railroad was constructed in 1886 and 1887 on the east side of the creek. The proceedings were begun in 1887. Plaintiff claimed that at the time the agreement was signed there , was a contemporaneous oral agreement that the railroad should be built upon the west side of the creek. Other facts appear by the opinion of the Supreme Court. Plaintiff made various offers to show the condition of the race before the railroad was finally completed. All of these offers were rejected. [1, 8, 4, 5] Plaintiff also offered to show the condition of the dam five years after the railroad was constructed. Objected to. Objection overruled and exception. [2] Plaintiff also offered to show that defendants had placed a large mortgage on their road in fraud of plaintiff, and for the further purpose of showing that the stock was worthless. Rejected and exception. [25] Various other rulings on evidence are set forth in the opinion of the Supreme Court. The court charged in part as follows : “ The plaintiff contends that at the time the road was located in 1886-7 his sawmill, dam and water power for the same were in first rate condition for the business for which they were especially adapted — that of custom work and merchant work in the manufacture of flour, chop and lumber ; that the gristmill was especially fitted with machinery which had been repaired and renewed within a year or two prior to that time ; that in constructing their railroad, the defendant company changed the bail race to both gristmill and sawmill, filled up and changed a portion of the headrace and dam which furnished and conducted the water to his mills, entirely stopping for a time — about a week — his mills; and that the water power to and from his mills by the changes made by the construction of the railroad was so injured and affected that he could not run and operate his mills as he formerly could ; that above the headrace the defendant company has built its embankments — upon which the track is laid — over and upon a part of the ground formerly occupied by the water in entering the headrace to his mills, and has thereby changed the force and current of the water leading from the pool of his dam to the headrace; and also that the defendant company, in making a portion of the headrace new, at its mouth or entrance at the dam, lessened its depth and changed its location, and thus diminished the force and flow of the water and choked and retarded and prevented its flow to his mills in the manner it formerly did. [In fact, the plaintiff further contends that the defendant company, by the building of the coffer dam and by the filling up of a portion of the head-race, thereby stopped entirely the flow of water in its accustomed channel to his mills and absolutely destroyed his water power and rendered valueless his sawmill and gristmill; and that what the defendant company subsequently did towards restoring, reconstructing, repairing and rebuilding the race and dam and waterpower upon the lands of the plaintiff outside of the company’s defined right of way, cannot be considered by you or set off against the plaintiff’s claim for damages in this suit. But, as to this last mentioned contention, we differ with the learned counsel for the plaintiff, and hold that it is a question for your determination under all the evidence and circumstances in the case whether or not the plaintiff consented and agreed to the construction of such works outside of the defined right of way. If yoii find that he did not, you should so state in your verdict, and thereupon all consideration of such works must be omitted in your estimation of the plaintiff’s damages.] [55] [If he did so consent and agrée directly with the defendant company or with its agents and employees, or was present when the works were being constructed and knew what was being done and did not dissent, remonstrate or object, but looked on and approved of the work, and subsequently ratified, accepted and used such works in connection with his mills, race and dam and water power, you may consider them in estimating the damages to his whole property, as being connected with the construction of the road.] [56] [If he did consent and agree, and if you so find from all the evidence in the case, then such works may be considered as if within the defined right of way, for the purpose of either increasing or diminishing the amount of damages, either as they increase or diminish the market value of his whole property as it was immediately before, compared with what it was immediately after the construction of the road.] ” [57] Plaintiff’s points were among others as follows: “ 1. That if the jury believe from all the evidence in this cause that the Hoffman proposal was to be void and of none effect, if defendant should erect its line of railway on the east side of Fishing creek and injure or damage the buildings, race, or water power as they then existed, the assessment of damages in this case should be an assessment in money.” Refused. [26] “ 2. That the plaintiff is not bound to accept the work of the defendant in the reconstruction of the water power upon his land, in lieu of damages, without an agreement to such an effect, and without such agreement no works of the defendant outside of its defined right of way can be considered by the jury in mitigation of damages in this case. Answer: This point is refused, for the reason that the plaintiff may have subsequently to such construction, of works ratified and accepted them as lawfully made ; and, if he did, such ratification and acceptance were equivalent to a prior agreement, as stated in our general charge.” [27] “ 3. That if the jury believe that, from all the evidence in the ease, the defendant company obtained a concession to enter upon the plaintiff’s land on condition of refraining from injury to plaintiff’s buildings, race, and water power, and violated such condition by the destruction of the water power, as it then existed upon the land, the measure of damages is the value of such water power, together with other damages to the mill and farm property.” Refused. [28] “ 5. That if the jury believe from all the evidence, the railroad company in the entry upon the plaintiff’s property under the alleged license did not exercise their right in good faith as to the location of their road, and thereby injured the plaintiff’s buildings, race, and water power, then the license is forfeited and the plaintiff’s damages are payable in money. Answer : This point is refused because we do not consider the evidence in the case with reference to this point alone sufficiently clear, precise and indubitable to warrant us in submitting this question to the jury for the purpose of setting aside a written contract, but submit it under our general charge and as stated in answer to the plaintiff’s second point.” [29] “ 6. That under the alleged license it was the duty of the defendant to have accepted the same within a reasonable time, and to have notified the plaintiff of such acceptance and that such acceptance should have been unconditional and in the same sense in which it was offered, and to have had the damages assessed upon the location of their road and to have tendered the stock at such time in payment of the damages, and if the jury believe from all the evidence the defendant has not done so, they are estopped from setting up such license and its terms in this cause. Answer: Taken as a whole this point is refused.” [30] “ 7. That there is no evidence in this cause that the defendant company have any stock to tender or that it has any market value or would be in any sense just compensation for plaintiff’s property taken by the railroad company or injured by the construction thereof.” Refused. [31] ' “ 8. That there is no evidence in this cause that the defendant company have undertaken or intend to extend its line, or that such line is extended to the point named in the plaintiff’s proposal, to wit: to the state line at or near Waverly, and they are estopped from setting up such license in this case until such conditions are shown to be complied with.” Refused. [32] “ 9. That the position taken by the president and counsel of defendant company in open court upon the former trial of this cause, as to the assessment of any damages to the buildings, race, and water power, of plaintiff in money, estops them from setting up a different measure of damages in this cause, viz.: the stock of the defendant company, as requested by the defendant in its first point, to wit, ‘ That if the jury believe that by reason of the new race and new dam provided by defendant, Mr. Hoffman’s water power is not damaged; then under the evidence and the written agreement for right of way, plaintiff can only recover if total value of his property is diminished to that extent, payment to be in capital stock of R. R. Co.’ ’ Refused. [33] “ 10. That if the jury believe the testimony of John W. Hoffman taken in connection with corroborating circumstances, and all the evidence in the cause that the license was given with the understanding that it was to be forfeited upon the erection and construction of the railroad upon the east side of Fishing creek and causing damage to plaintiff’s buildings, race and water power, and the defendants have violated the conditions thereof, they are estopped from setting up such license in this cause.” Refused. [84] “ 11. That if the jury believe from all the evidence that defendant company, in the erection of its said railway, went outside of their line of appropriation and destroyed the plaintiff’s dam, and by blasting and otherwise cast in and filled up plaintiff’s pool of water, with rocks, stumps, logs and earth and thereby changed the currents of the plaintiff’s pool and pool supplies and occasioned irreparable injury to plaintiff, he is entitled to a money assessment for such damages in this suit.” Refused. [35] “ 12. That the defendant having entered upon the property of plaintiff without making compensation and without giving security for damages under a claim of license, the defendant is required to show a strict compliance with such license in all respects, and particularly with reference to the manner and time of the location and the matter of consideration therein mentioned ; and if the jury believe that the defendant did not so comply with the license either as to matter of omission or commission, the license is forfeited by the defendant, and the plaintiff is entitled to recover compensation in like manner as if no license had been given for the injuries occasioned to his property by reason of the location, appropriation for, and construction of the railroad, and that the plaintiff is also entitled to recover compensation for the injuries to his property occasioned by any work upon or interference with the property of the plaintiff outside of the actual appropriation as by the defendant limited and defined. Answer: Taken as a whole, this point is refused for reasons given in the general charge and in the answers to the other points.” [36] Defendant’s points were as follows: “ 1. That the construction of the release agreement of John W. Hoffman witnessed by H. J. Conner is a question of law to be determined by the court. To be determined exclusively upon the face of the paper itself, unless some question of fact connected with such construction and affecting the same shall be submitted b}r the court to the jury for their decision. Answer : We have already ruled upon that question, and we affirm this point.” [37] “ 2. That the legal construction of said agreement is as follows : That Hoffman agrees to release to a proposed railroad company undertaking a particular improvement, the right of way through his land, and all the damages sustained by him resulting from the location, construction and lawful operation of the road shall be paid to him in the capital stock' of such company at par. The damages to be assessed or valued when the road is laid down or placed upon his land. The term ‘located ’ used in the agreement, judged by the context and the concluding portion of the paper, relates to a time when the question of injury to certain parts of his property and the question of fencing connected therewith can be determined. Lastly the agreement further provides that if no damage shall be done to his buildings, race or water power, the cost to him of fencing caused by the railroad appropriation shall not be included in the damage to be assessed, but if there shall be such injury to buildings, race or water power, then the cost of fencing shall be included in the damages to be paid by the railroad company. Answer: That the legal construction of said agreement is as follows: ‘ That Mr. Hoffman agrees to release to a proposed railroad company undertaking a particular improvement the right of way through his land’ — We ought to add here the words ‘ in Orange township.’ ” Mr. Scarlet: We object to any alteration or reformation of the point at this time, unless it is withdrawn and the new point submitted to us. Mr. Freeze : The words were in the point as originally drawn and have been overlooked in copying. Court: Restoring these words, we affirm the point. (Reads the -rest of the point.) This point is affirmed. [38] “ 3. That there is no evidence in this case sufficient to be submitted to the jury of any fraud, mistake or contemporary understanding of the parties qualifying the instrument, by which Hoffman' was induced to sign the agreement of release in evidence : The testimony of plaintiff being insufficient for such purpose, as it is directly contradicted by a witness on the other side who negotiated with him the agreement in question. The paper must therefore stand as against its attempted impeachment or qualification.” Affirmed. [39] “ 4. That by the general law of the state relating to railroads, a release or an agreement to release by a landowner the right of way through his land to a railroad company will include all the damages to his property for which legal assessment may be made resulting from the location, construction and proper operation of a railroad line, whether such damage relate to the appropriation of land by the company or result consequentially to other portions of the landowner’s property, or from interference therewith by the railroad company, and in this sense the words ‘ right of way ’ in the Hoffman agreement are to be taken and understood.” Affirmed. [40] “ 6. In the present case the main ground of complaint by the plaintiff: is the change of his headrace for a distance of about 160 feet, by which he claims his mill power is decreased and the working capacity of the mills greatly impaired. As the old and new race at the place of change lie near each other and are partly blended at their entrance, the question assumes the form of an examination of the relative capacities and action of the two channels of water supply, to be determined by the jury upon the evidence. Is the new race as wide, as deep, and as capable of delivering water toward his mill as the old one ? If so and no additional point require consideration, the validity or the invalidity of this ground of complaint and claim can be directly determined upon the evidence relating thereto.” Affirmed. [41] “ 7. If the old race was sixteen feet wide and of a depth” not exceeding three and one half feet at its entrance and the new race as first constructed was seventeen feet wide at its entrance and of a depth corresponding with the old one, and since then has been greatly widened at that point, the comparison of capacity between must result in the rejection of the plaintiff’s complaint unless the new race at lower points is deficient in capacity or otherwise. It is for the jury to determine this question under the instruction of the court upon the evidence, but where the testimony is contradictory the testimony of the engineers as to actual measurements made and recorded by them is much more relied upon than the testimony of unprofessional witnesses who speak from mere recollection after a lapse of many years.” Affirmed. [42] “ 8. Whether the passage of water under the railroad at the lower end of the new part of the race has been, or will be, in the natural course of things, impeded, will also be determined upon the testimony relating thereto, and upon the obvious and proven fact that the water heretofore passing at that point has not required the whole space between the abutments, and has thrown down sedimentary matter upon the side, and particularly upon the east side of its channel. Answer: We affirm this point, because we understand that that fact is undisputed in the testimony.” [43] “ 10. So likewise if the jury believe the testimony of the president of the railroad company and its superintendent of construction in the spring of 1887, and before work was completed, in reply to complaint made by plaintiff of the insufficienejr of the new race, the president of the railroad company replied that the company would make any change necessary or desired at the head of the race, in which proposition plaintiff acquiesced, and thereupon the railroad company did through its proper officer make the enlargement of the race at the point referred to, including the erection of about 90 feet of new dam at large expense, the same being undertaken with plaintiff’s knowledge and acquiescence therein as an improvement of his property, he cannot now object that the extension of his race was unauthorized nor that he is entitled to damages therefor, unless he shall show that it was a disadvantage to his property and to be taken into consideration as such by the jury.” Affirafed. [44] “ 11. If on the other hand such construction and enlargement of the new race and dam shall be found by the jury to be an element of advantage to the property for purposes of sale, it is to be considered in determining the entire value of the property after the railroad was made.” Affirmed. [45] “ 12. If the jury shall believe that the new race at its entrance was upon the same level and in part includes the old and becomes deeper, going downwards to the point of junction with the old race below the crossing, and was of greater width and capacity than the old race, there can be no recovery by the plaintiff upon the ground that his headrace and water power were injured by the railroad company. For the obligation of the railroad company was that it should not damage plaintiff’s property, not that it should undertake to improve it; hence it was under no obligation or duty to the plaintiff to dig a channel in the pool of his dam above the entrance of the new race in order to facilitate the downward movement of the water from the pool of his dam and increase the power of his mills, nor was there any obligation on the railroad company to provide for plaintiff a race of greater depth, width or capacity than the old race.” Affirmed. [46] “ 13. That the proof given by the railroad company that the deepening of the present race from a point about twenty-five feet above its entrance and one foot in depth, thirteen feet wide at the bottom, can be made down the new race (inclusive of all collateral charges) for the sum of $120, is to be considered by the jury only in case they shall find that the headrace and water power have been injured by the railroad company because of deficient depth or capacity in the new race. For if the plaintiff could have remedied the defect at the entrance of the new race alleged by him by an expenditure not exceeding that sum, it would be unreasonable and unjust to allow him large damages for a cause which would not probably have affected the value of his property for sale to any heavy extent.” Affirmed. [47] The jury returned the following verdict: 41 $5,200. We find damages for plaintiff in the sum of five thousand and two hundred dollars, with interest included payable in capital stock of defendant company at par value.” Judgment was entered thereon. Errors assigned were (1-25) rulings on evidence, instructions ; (64) verdict; quoting bills of exception, evidence, instructions and verdict respectively. The verdict is uncertain, not responsive to the issue, inconclusive, and there is no means of compelling its performance: Bruck v. Mausbury, 102 Pa. 35. Except by another suit: Glass v. Blair, 4 Pa. 196. No execution can issue upon such a judgment: Acts of June 16, 1836, P. L. 774, and April 7, 1870, P. L. 58. Defendant company has no authority to issue such stock : Art. 16, § 7, Const. A mere offer or promise, not accepted, involves no concurrence of wills and it can never constitute a contract: Bishop on Con., par: 321. The acceptance must be communicated to the proposer. An acceptance not communicated to the proposer does not make a contract: Borland v. Guffey, 1. Gr., Pa. 394. An acceptance must be unequivocal, unconditional and without variance from the proposal: Strange v. Crowley, 7 West. R. 106; Bishop, Cont. par. 323; Waterman, Spec. Per., p. 174. The paper was only admissible, if it was such a contract that a court*of equity could enforce specific performance of it: 2 Story, Equity, § 760; Jacobs v. P. & S. R. R., 8 Cush. 223. Defendant was guilty of laches : Waterman, Spec. Per. 348; Tiernan v. Roland, 15 Pa. 429; Boston & Maine R. R. v. Bartlett, 10 Gray, 384; Stewart v. Morrow, 1 Gr., Pa. 204; Roberts v. Beatty, 2 P. & W. 63 ; Barr v. Myers, 3 W. & S. 299. The interpretation of a contract is the ascertaining, not only of its verbal meaning, but also of its legal effect: Bishop, Cont. 367 ; Waterman, Spec. Per. 158. Defendant company, having set up a contract, it would have to show an agreement: Oliver v. R. R., 131 Pa. 413 ; Omaha R. R. v. Janeck, 3. Am. R. R. Cases, note, 268; McKnight v. Ratcliff, 44 Pa. 165 ; Dark v. Johnston, 55 Pa. 164; Cook v. Stearns, 11 Mass. 533; Miller v. Auburn R. R., 6 Hill, 61; Cooley, Torts, 304; Edelman v. Yeakel, 27 Pa. 30; Hoffman v. R. R., 143 Pa. 516. It was for the jury to find from the time and manner of acceptance and the acts of the company whether it entered under the contract or under the statute or in defiance of both. It was not a question of construction: Edelman v. Yeakel, 27 Pa. 30. The location of a railway by survey is a taking and appropriation of the land, although the actual construction is not begun for years afterwards: Pittsburgh V. & C. R. R. v. Com., 101 Pa. 192; Beale v. Pa. R. R., 86 Pa. 509; Heise v. R. R., 62 Pa. 68; Neal v. R. R., 2 Gr., Pa. 138. Plaintiff was not bound to wait until defendant had committed a new trespass in alleged repair of the injury done. This principle is found in a very old case, Y. B. 6 Ed. IV. 7, pl. 18. It was the duty of the licensee to refrain from acts willfully injurious. In acting upon the license the licensee was bound to use due care, and do nothing on the land which would be injurious: McKnight v. Ratcliff, 44 Pa. 159; Dark v. Johnston, 55 Pa. 164; Kissecker v. Monn, 36 Pa. 313 ; Kay v. Pa. R. R., 65 Pa. 272; Edelman v. Yeakel, 27 Pa. 26. The value of the property was its market value immediately before the diversion of the water and immediately after as affected thereby: Hanover Water Co. v. Ashland Iron Co., 84 Pa. 279; R. R. v. Scully, 16 W. N. 213 ; McKnight v. Ratcliff, 44 Pa. 165; Bishop, Cont., par. 323. The time and manner of acceptance were at least mentioned in the proposal in this way. The time when the damages were to be assessed was when the road was located: Cooley, Torts, 304 ; Lyford v. Putman, 35 N. H. 563. The evidence was sufficient to show the real character of the agreement between the parties : Phillips v. Meily, 106 Pa. 543 ; Greenawalt v. Kohne, 85 Pa. 369; Hoopes v. Beale, 90 Pa. 82 ; Hartley’s Ap., 103 Pa. 23; School Furniture Co. v. Warsaw Sch. Dist., 130 Pa. 94. When on the face of the writing it appears to be incomplete or imperfect as a contract or to embrace only part of the stipulations meant, oral evidence may be introduced in connection with it, and from the two the actual contract determined : Bishop, Cont., par. 175; Thorpe v. Fremont R. R., 3 Am. R. R. & Corp. Cas. 000. A grant is to receive a reasonable construction which will accord with the intention of the parties, and the court must look at all the circumstances under which it was made : Connery v. Brooke, 73 Pa. 84; McFarson’s Ap., 11 Pa. 503. Defendants having neglected for over four years to pay in stock, it was incumbent on them to show that the value at the time of the proposal or organization was the same in the market: Lewis, Eminent Domain, 462; Demarest v. McKee, 2 Gr., Pa. 248. A party is not bound to pay for an erection on his land in every way radically defective in view of the purpose for which it was intended, although it maybe of some value to him : Bryant v. Stilwell, 24 Pa. 314; Miller v. Phillips, 31 Pa. 218 Barnhill v. Haigh, 53 Pa. 165. Even where a landowner allows a company to construct a road without remonstrance, he will not be held to have waived his right of action for damages: Lawrence v. Morgan R. R., 30 Am. &, Eng. R. R. 309; Harris v. R. R., 141 Pa. 242; Oliver v. Ry., 131 Pa. 408. To show waiver it tvas incumbent on defendant company under the rulings of this court in Oliver v. R. R., 131 Pa. 408, and in Unangst’s Ap., 55 Pa. 128, to come into court if not with a writing, with full, distinct and unequivocal proof of the waiver it alleges. In an assessment of damages, where an alleged obstruction of water power exists, defendant may prove the cost to plaintiff of removing the obstruction as a fact to be considered by the jurjr, in the ascertainment of his damages: Barclay R. R. &. Coal Co. v. Ingham, 36 Pa. 194. In general, time is not of the essence of the contract unless so declared by the parties, or plainly indicated by attending circumstances : Shaw v. Turnpike Co., 2 P. & W. 454; Hewson v. Paxson, 38 Leg. Int. 308 ; Barnard v. Lee, 97 Mass. 92; Whitsitt v. Church, 110 Ill. 125; 3 A. & E. Enc. L. 847. An offer proposing a unilateral contract becomes a binding promise immediately upon the performance of the act requested to be done; and therefore, unless communication to the proposer is one of the things requested, it is not necessary: 3 A. 6 E. Enc. L. 847 ; Hare, Contracts, 313; Cooper v. McCrimin, 7 Am. R. 268; Phillips v. Allegheny Car Co., 82 Pa. 368. . It was clearly not competent for plaintiff to enter upon an inquiry as to the market or cash value of stock. By his contract he was to take that stock without reference to its actual or selling value at the time it was received, no stipulatidn being made that its cash value should be ascertained or regarded at the time of payment: Miller v. Pittsburgh R. R., 40 Pa. 237; Cleveland & Pitts. R. R. v. Speer, 56 Pa. 325. A landowner having consented to the entry of a railroad company cannot afterwards treat it as a trespasser: Oliver v. R. R., 131 Pa. 408. The railroad company had a right to accept payment of stock in labor or materials, or in damages which the company was liable to pay: Phila. & Chester R. R. v. Hickman, 28 Pa. 318. In the present case both the context and the after action of the parties show that in their contemplation the assessment was to be made when the road was actually constructed, and the nature and effect of the work, as made, could be ascertained: Mercer Mining Co. v. McKee’s Admr., 77 Pa. 170. When it is uncertain whether words are used in an enlarged or restricted sense they should be construed most favorably to the covenantee : Paul v. Ins. Co., 112 N. Y. 474; Ry. Co. v. Reynolds, 118 Ind. 170 ; Crawen v. Cotton Mill Co., 16 Am. St. 298. Parol evidence was inadmissible to vary the written agreement: Thorne, McFarlane & Co. v. Warfflein, 100 Pa. 526; Cullmans v. Lindsay, 114 Pa. 166; Martin v. Berens, 67 Pa. 459; Miller v. Smith, 33 Pa. 386; Stine v. Sherk, 1 W. & S.195. Commissioners to take subscriptions of stock, preparatory to the organization of a railroad company, cannot bind the company by parol engagements in connection with, or qualification of, written subscriptions made: Bavington v. R. R., 34 Pa. 358; Nippenose Mfg. Co. v. Stadon, 68 Pa. 256 ; Graff v. R. R., 31 Pa. 489; McCarty v. R. R., 87 Pa. 332. Statement by defendant’s counsel does not estop defendant from setting up the true construction of the agreement: Dungan v. Ins. Co., 52 Pa. 253 : Eldred v. Hazlett’s Admr., 33 Pa. 307 ; Mecough v. Loughery, 37 Leg. Int. 341; Wright’s Ap., 37 Leg. Int. 170.
157 Pa. 200Reese v. Reese (1893)
Appeals, Nos. 162 and 163, July T., 1892, by Hart, Lee & Co., and Wells, Bowman & Co., creditors, from order of C. P. Luzerne Co., Oct. T., 1889, No. 683, in Reese v. Reese, distributing funds arising from sheriff’s sale. Exceptions to auditor’s report distributing proceeds of sheriff’s sale. Before Rice, P. J. The auditor, C. F. Bohan, Esq., found the following facts: “1. That, for about four and one half years prior to the 4th day of March, 1889, William B. Reese was engaged in the business of keeping a general store in Plymouth borough in this county. And that for about seven months prior to the 4th day of March, 1889, and for some time thereafter, said Wm. B. Reese was also engaged in the business of hardware at Taylorville, in Lackawanna county. “ 2. That on the 4th day of March, 1889, said Wm. B. Reese, by private sale, sold out his general store in Plymouth, including all book accounts due him from his then and former customers, to Benjamin Reese and Elizabeth Jones, who subsequently carried on that same business under the firm name of Jones & Reese. That on the day of said sale, and in consideration thereof, the said Wm. B. Reese received no money from Jones & Reese, but received from them an obligation containing a confession of judgment for the sum of six thousand one hundred and thirty-three and ninety one hundredths dollars, which said obligation was duly executed by said Elizabeth Jones and Benjamin Reese. “ 3. That on the 22d day of August, 1889, said Wm. B. Reese duly assigned said obligation, referred to above, to his wife, Mary Reese, which said obligation with the assignment, on the same day, was duly filed and judgment entered thereon in the court of common pleas of Luzerne county to No. 683 October term, 1889, in favor of William B. Reese, assigned to Mary Reese, and against Elizabeth Jones and Benj. Reese. That there was no valuable consideration, but that there was a good consideration for this said assignment. “ 4. That in February, 1890, a fire occurred in the store of said Jones & Reese whereby their stock of goods, which was insured for the sum of five thousand dollars, was so much destroyed that the insurance companies, on April 23,1890, paid to said Jones & Reese the sum of twenty-three hundred and eighty-nine and twelve one hundredths dollars, the amount agreed upon to cover their loss. That after said fire Jones & Reese changed their place of business to a store across the street, and there continued until April 24, 1890. “ 5. That on April 24, 1890, an execution was issued on the judgment, No. 683, October term, 1889, above referred to, against said Jones & Reese, whose stock of goods was sold out by the sheriff on May 1, 1890, to Michael Gannon, Esq., attorney for the plaintiff in the execution, for the sum of nineteen hundred and eighty-four and fifty one hundredths dollars. That, subsequent to the sale, Mary Reese, the plaintiff in said judgment and execution, carried on the said business formerly conducted by Jones & Reese and sold out as aforesaid. “ 6. That before the sale and after the issuing of the execution above referred to, attachments under the act of March 17, 1869, and its supplements, were issued out of the court of common pleas of Luzerne county in the following entitled cases, viz.: (a) Hart, Lee & Co. v. Benj. Reese and Mrs. Elizabeth Jones, defendants, and ¥m. B. Reese and Mary Reese, garnishees, No. 653, May term, 1890. (b) Wells, Bowman & Co. v. Same, No. 658, May term, 1890. (e) Levy, Bros. & Co. v. Benjamin Reese and Mrs. Elizabeth Jones, trading as Jones & Reese, No. 705, May term, 1890. (d) Bixler & Correll v. Same, No. 718, May term, 1890. “ That these attachments were founded upon allegations of fraud committed, or about to be committed, by defendants. That rules to show cause why the said attachments should not be dissolved were taken out in each of said cases, which rules were subsequently discharged by the court. “ 7. That the money realized from said sale having been paid to the sheriff by agreement of counsel, it was allowed to remain with the sheriff with like effect as if paid into court, and the undersigned was appointed by the court to distribute said fund. That counsel, representing the said attachments, claim the fund here for distribution alleging ‘that the note upon which the judgment was obtained and sale had, was without consideration ; that whatever consideration there was failed; that the note was fraudulent, and that the proceedings had on said judgment were for the purpose of delaying, hindering and defrauding creditors.’ “ 8. [That the insurance money referred in the fourth finding, supra, was retained by Jones & Reese until about ten days or two weeks after the sheriff’s sale, when it was paid to Mary Reese.] [5] “ 9. [That at the time of and prior to the transfer or sale of the business from W. B. Reese to Jones & Reese, Jones & Reese had had no dealing with Hart, Lee & Co. or Bixler & Correll, and that the indebtedness for which the several attachments were issued in this case was all incurred subsequent to said transfer or sale, and that the creditors had notice of a change in the firm, if not of the persons who composed the new firm.] [6] “ 10. [That the execution on the judgment upon which the sale was had in this case was issued for the purpose of protecting the debt of the plaintiff, Mary Reese, therein.] ” [7] The auditor’s conclusions of law were as follows : “1. [That the obligation given by Jones & Reese to ¥m. B. Reese, upon which, the judgment was obtained and sale had, was for a valuable consideration, valid, and not fraudulent; that the assignment by Wm. B. Reese to Mary Reese of said obligation was for a legal consideration and not in fraud of creditors ; that the execution issued by Mary Reese upon said judgment was not for the purpose of hindering, delaying and - defrauding creditors, but to legally protect her vested rights in said judgment; that, while there is testimony that excites suspicion, yet, on the whole, considering the great latitude allowed in proving alleged fraud, we are unable to connect Mary Reese with any fraud or fraudulent design, and conclude that the weight of evidence pronounces this a valid and lawful proceeding, untainted by fraud.] [34] “2. [That the fund in this case for distribution, after deducting the fees of the auditor and the sheriff’s and prothonotary’s costs, be awarded to Mary Reese, the execution creditor in the judgment on which the sale was had and fund realized, and that each of the several parties contesting for this fund pay their own bills for subpoenaing and attendance of Witnesses at the audit.] ” [35] Exceptions, among others, to the conclusions of law and fact as in brackets were dismissed by the court in the following opinion by Rice, P. J.: “ It is argued that the order of court discharging the rule to dissolve the attachments was a conclusive adjudication that all of the allegations were sustained, which was binding, not only on the defendants, but also on the plaintiff in the judgment and execution alleged to be fraudulent. We are unable to adopt this conclusion. The parties to the issue raised by the rules to dissolve the attachments were the defendants and plaintiffs in the attachments, and the adjudication was simply to the effect that enough of the allegations of fraud were sustained by the evidence then presented to entitle the plaintiffs to maintain the attachments, but, of course, subject to all prior-valid liens. These allegations were (1) That the defendants were about to assign, etc., their goods by means of a sheriff’s sale on a fraudulent judgment in favor of William B. Reese, assigned to Mary Reese; (2) that the debts for which the attachments issued were fraudulently contracted. In order to sustain the attachments it was necessary for the plaintiffs to establish one or the other of these allegations, but it was not necessary to establish both. We are still of opinion that there was sufficient evidence of the latter allegation, because the credit was given to the defendants upon the faith of representations, in which, to say the least, there was suppression of part of the truth concerning their indebtedness, where they were in duty bound to state the whole truth in the matter. But it does not necessarily follow that the judgment in favor of W. B. Reese assigned to Mary Reese was without adequate consideration, and fraudulent. That was a question which, so far as she was concerned, could be conclusively adjudicated only on a distribution of the fund realized by the sheriff’s sale. She had no stand in court to have the attachments dissolved. The learned auditor, after a full hearing of the parties to be affected, has found that there is not sufficient' evidence to sustain this allegation of the attaching creditors, and no request has been made for a jury trial. We cannot say that his conclusion upon the question of fact was clearly wrong. Most of the evidence tending to impeach the bona fides of the transactions consists of declarations and acts of the defendants and of W. B. Reese, after the note had been assigned to her and entered by record, and we are unable to say that the auditor erred in holding that there was not sufficient evidence to connect her with a fraudulent scheme to defraud the defendant’s creditors to make these declarations competent to affect her rights: Kintzel v. Kintzel, 133 Pa. 71; Wolf v. Kohr, Ibid. 13; Unangst v. Goodyear Co., 141 Pa. 127; Tisch v. Utz, 142 Pa. 186. Furthermore, there was a conflict of testimony as to some of the material facts, and in such cases it has repeatedly been said that the auditor who had an opportunity to observe the manner in which their testimony was given is better able to judge of the credibility of the witnesses than the court. For these reasons we conclude that we would not be justified in disturbing the auditor’s findings.” Errors assigned were dismissal of exceptions, quoting them. The judgment was not only not known to appellants and other creditors, but its existence was kept carefully concealed and in effect denied. When a person furnishes another with property upon which to obtain credit, or with which to do business, and states to this person’s creditors that he had given it to him, or induces credit by representing that “ it is all right,” he will commit fraud if, when the credit is furnished, he seizes these goods or the goods thus obtained upon execution upon judgment confessed for that particular property as to which the statements were made, and the judgment itself will be fraudulent as to those creditors. And these representations were mainly made while Reese held the note. The garnishees had a right to move to dissolve the attachment : Finch v. Bullock, 10 Phila. 318 ; Morris v. Turner, 3 Clark, 423; Act of March 17, 1869, P. L. 10; April 29, 1891, P. L. 35. The discharge of the rules to dissolve the attachments was res judicata, therefore. There is one law as to transactions between husband and wife — there is another law as to the same transactions between that husband and a stranger. Where a husband confesses judgment to the wife she must prove it to be honest. She must prove that she owns property she claims. The presumption is that the property she claims is her husband’s : Wilson v. Silkman, 97 Pa. 509; Winter v. Walter, 37 Pa. 155; Aurand v. Schaffer, 43 Pa. 363; Bucher v. Ream, 68 Pa. 421; Topley v. Topley’s Admrs., 31 Pa. 328 ; Walker v. Reamy, 36 Pa. 410. It was conclusively shown that neither W. B. Reese nor Mary Reese was indebted to appellants in this case at any time after the transfer of the note in question, and the auditor so found, and his findings of fact were confirmed by the court. The report of an auditor will not be disturbed, where his findings of fact are approved by the court below, except upon flagrant error: Bull’s Ap., 24 Pa. 286 ; Harbison’s Est., 145 Pa. 458 ; Gilbert’s Ap., 78 Pa. 266. Confirmation of the auditor’s report by the court gives it additional force: Fahnestock’s Ap., 104 Pa. 49.
157 Pa. 208Benscoter v. Long (1893)
Appeal, No. 13, Jan. T., 1893, by defendant, Clinton H. Long, from judgment of C. P. Luzerne Co., Oct. T., 1889, No. 870, on verdict for plaintiff, John Benscoter. Trespass for penalty for illegal fishing. At the trial, before Lynch, J., it appeared that defendant at various times fished in a pond which plaintiff claimed was a private pond, protected by the act of June 3, 1878, P. L. 160. It appeared that plaintiff had placed bass in the pond, but there was no evidence that he had improved the pond for the purpose of propagating fish. He had placed near the pond the following notice: “ All persons are hereby notified not to trespass on these lands or fish in this pond under penalty of the law.” ■ [Plaintiff offered in evidence, contract, Archibald McCall, assignee of Moore Whorten, to Isaac Benscoter, 2d, dated Feb. 20,1836, recorded May 5,1863, for a tract of land situate in Union township, Luzerne county, and containing about 441 acres, be the same more or less, which was surveyed in pursuance of a Avarrant in the name of John "Watson ; and the said Isaac Benscoter agrees to purchase the said land from the said Archibald McCall, and pay him for the same the sum of $300 in manner following: etc. Then follows deed from Archibald McCall, assignee of Moore Whorten, to Isaac Benscoter, dated Dec. 19, 1862, recorded May 5, 1863, for the whole Watson tract. Defendant objected to the contract and deed as incompetent; and also there being no showing of title in Archibald McCall. Plaintiff’s counsel: We offer this for the purpose of showing a link in the "chain of title to the pond in question in the plaintiff ; we propose to show that the title is in John Benscoter for all this pond. Defendant’s counsel: Do you propose to show any conveyance from Moore Whorten to Archibald McCall ? Plaintiff’s counsel: Only what is recited in this deed; it has been lost and as I am informed unable to be found; we propose to show in connection with this our possession for thirty or forty years. By the Court: For the present we will admit it, for two reasons ; first, the age of the paper, and second, the recital contained in the paper; exception noted for defendant, and bill sealed.] [1] Plaintiff then gave in evidence the other deeds, tracing title to himself, with the exception of the deed to the assignee mentioned above. [Plaintiff then offered in evidence exemplification of the will of Benj. R. Morgan, Gloucester county, New Jersey, under the hand and seal of the probate court of that county, together with the proper certificates attachedexemplified under the act of Congress, — willing to his executors Louis Walm, Coleman Fisher and William Rawl this land, and giving them power to sell. Deed, Louis Walm, Coleman Fisher and William Rawl, executors of the last will and testament of Benjamin R. Morgan, to William Search, George Search, Lot Search, Ellen Kremer, Christiana Search, Elizabeth Search and Thomas J. Search, all of the township of Union, county of Luzerne, state of Pennsylvania, dated July 10, 1849, lot of land partly in Union and partly in Ross, describing this same tract 260 acres 76 perches and allowance, being a part of the larger tract of land surveyed on the 10th of January, 1793, by the commonwealth of Pennsylvania to Benjamin R. Morgan ; the deed recites will, and it speaks of William Rawl as being then called and known by the name of William Rawl, Jr., consideration, $675. Recorded Jan. 13, 1851. Defendant objected to the admission of this deed last offered, because it contains no internal evidence that it covers the land involved in this lawsuit; (2) the will under which it purports to have been executed contains no authority to the executors to make deeds; and (3) the purported will of Benjamin R. Morgan, so far as shown, has never been recorded in Luzerne county or in the state of Pennsylvania, nor have letters been issued by the proper authority in Pennsylvania, therefore the executors have no authority to make deed of lands lying within the state. Plaintiff proposed to show, in addition to the paper title offered, that the present possessor and his father under whom he claims have been in possession of this land between 30 and 40 years undisputed under and by virtue of the title ; it therefore does not lie in the mouth of a trespasser to dispute this title; and we propose to show location, — that it is a part and upon that part that this trespass occurred. By the Court: The court sustains the third objection; exception noted for the plaintiff; bill sealed. Plaintiff offered in evidence exemplification of the will of Benjamin R. Morgan, deceased, now filed in the register’s office of Luzerne county, Feb. 11,1892, recorded in will book M., page 185, — the same exemplification that was offered this morning. Together with the exemplification and all papers thereto attached, recorded in the office of the register of wills in and for Luzerne county, in will hook M., page 185, Feb. 11, 1892. Defendant objected to the offer, that it is inadmissible for the purpose of showing title in the present action, and as to the defendant here, there was no paper title in the plaintiff at the time of the alleged trespass, — the record of the exemplification of the will during the trial of the case does not relate back to a time prior to the alleged trespass. The Court: The objection is sustained. It seems this is offered for the purpose of proving a paper title to the land in dispute and possession in the plaintiff. As the court understood before dinner, the plaintiff intended to rely upon an open and notorious possession of the land, and hence the court is of the opinion that this act does not authorize the admission of paper such as is offered at this late date for the purpose of affecting the alleged trespass committed at the beginning, or on or before the beginning of this suit. Exception noted for the plaintiff and bill sealed. Plaintiff re-offered the same record on the next day; exemplification of the will of Benjamin R. Morgan, recorded in will book M., page 150, recorded Feb. 11, 1892, to be followed with the other deeds already offered in evidence by the plaintiff, showing a continuous title from the commonwealth to John Benseoter of the portion of the South Pond now occupied by him, — the same deeds that have been put in evidence; they were then put in evidence to show color of title. Objected to for the same reasons as before. The Court: Objection is sustained for the same reasons. On Feb. 15, 1892, plaintiff’s counsel proposed: At the time when the certified copy of the will was last offered, together with the record thereof, — will of Benjamin R. Morgan, will book M., page 150, — it had already been probated by the register under the provisions of the act of 1882, a fact that we did not call to the attention of the court, and for that reason I now make a re-offer of that will, to be followed with the deeds that were formerly offered. I offer it for the purpose of showing a title in fee in John Benseoter. Defendant objected to the offer as containing no new essential element of the offer previously made in this behalf; that the alleged conveyance from the executors of Benjamin R. Morgan under his will was never legal and never could have been legalized except under the curative act of assembly on that subject; that no curative act legalizes such a conveyance prior to the time when it is actually perfected under the act, particularly for the purpose of a pending suit and during the trial thereof. By the Court: The court is of opinion that this evidence, taken together with such possession as has been shown by Mr. Benseoter, and the remainder of the paper title, is sufficient in law to warrant a presumption of a valid title having passed from the Morgan estate to the plaintiff. Objection overruled, evidence admitted, and bill sealed for defendant.] [2] Defendant disputed plaintiff’s claim to title to the whole pond, and alleged and gave evidence that a portion of the pond was on his own land. The court charged as follows: - “ This case is an action of trespass, brought by Mr. Benscoter, the plaintiff, against Clinton Long, the defendant. The essential part, or ingredient, of this action is an injury done to the possession of the plaintiff’s land, or land that is in his possession. The action is based upon the 21st section of the act of June 3, 1878, which provides as follows: ‘ Any person trespassing on any lands for the purpose of taking fish from any private pond, stream or spring, after public notice on the part of the owner or occupant thereof, such notice being posted adjacent to such pond, stream or spring, shall be deemed guilty of trespass, and, in addition to the damages recoverable by law, shall be liable to the owner, lessee or occupant in a penalty of one hundred dollars for any such offence. Provided, however, this section shall apply only to such ponds, streams or springs as shall be used or improved by the owners or lessees for the propagation of fish or game fish.’ Permit me briefly to call your attention to some of the facts and to eliminate from the case matter which the court thinks is not essential in order to arrive at a proper verdict. “ All the land in the neighborhood of this pond, in so far as it is essential for the purposes of this case, is shown to have at one time belonged to the commonwealth of Pennsylvania. On the tenth day of January, 1779, a warrant was secured, and upon that a survey was made, upon the fourteenth of October, 1793, to Benjamin R. Morgan, for 440 acres, 9 perches and allowance, situate at the head branches of Hunlock’s Greek and Shickshinny, and including South Pond, so called. By that patent the title to that tract passed from the commonwealth to Benjamin R. Morgan. The same proceedings were had so far as the John Watson tract is concerned. The warrant is dated April 10, 1793; it was surveyed on April 2,1794, for 440 acres and allowance; situated on the South Pond on Hunlock’s Greek. By virtue of that patent the Watson tract was conveyed to John Watson. [By a line of conveyances which it is unnecessary to burden the jury with in this action, the title and possession to a portion of these tracts — secured by Morgan to the Morgan tract, and by Watson to the Watson tract— vested in John Benscoter. So that on the 5th day of September, 1889, John Benscoter had both paper title and title by possession to that part of the Watson and that part of the Morgan now in question, extending north to the Hazlehurst line.] [3] On the 19th of July, 1792, a warrant was issued by the commonwealth to Samuel Hazlehurst, and upon that warrant a survey was made on the 29th September, 1792. By a line of conveyances the title of the Samuel Hazlehurst in question vested and was in Clinton Long, on the 5th of September, 1889. [This not being an action of ejectment, you may assume, for the purpose of arriving at a true verdict in this case, that on the 5th of September, 1889, John Benscoter owned that part of the Morgan and Watson covered by the pond south of the Hazlehurst line, and that the property was then in his possession, so that a trespass upon it makes the trespasser liable in damages.] [4] Clinton Long owned and was in possession of the Hazlehurst, which joins the north line of the Morgan at the point in dispute, on the 5th of September, 1889. In 1843 or 1844, you will recall the year, the predecessor in the title which is held by Mr. Benscoter built a milldam on the outlet of this pond, a short distance below the pond, for the purpose of holding the water in order that a mill near by might be properly run. That dam was not erected for the purpose of making the South Pond a private pond, nor for the purpose of propagating fish in the South Pond, but for milling purposes, and it is conceded on both sides that the height of the dam has not since been changed or altered. You will have before you the original surveys of the Morgan, the Watson and the Hazlehurst tracts. “ One of the principal questions in this case is, the location of the Hazlehurst line. The plaintiff contends, and the court is of the opinion that it is necessary, that he shall establish that fact by proper credible evidence, to the satisfaction of the jury, that the Hazlehurst line is not in nor across the north end of this pond, but that it is either on the shore above the ordinary level of the water or still further north. The defendant’s contention on that point is, that the Hazlehurst line is in the pond and cuts across the upper end of it, some places one rod, and at other places, two, three, four, five, six, seven, and I believe as high as eight or nine rods. “You have heard the evidence of the plaintiff, and especially that of Mr. Crocket, an engineer or surveyor; you will remember what he said concerning surveys made by him, and the map made by him based upon that survey. Does that map show that the Hazlehurst line is in or across any material part of the water of this pond ? Then you may go next to the survey and map of the defendant's witness, Mr. Trescott. Where does that surveyor and his map show the Hazlehurst line is ? Examine the original map or surveys, namely, the surveys of the Watson, Hazlehurst and Morgan. It is proper for the court to call your attention to the fact that there is no direct evidence as to how high the dam built by the Benscoters did raise the water in this pond. You will ascertain, from the credible evidence in this case, whether the dam built by Benscoter at the outlet in 1843 or 1844 did raise the water so as to throw it upon the Long land, and thereby change the actual height of the pond from what it was when the original survey was made, in 1793. If the dam raised the water and thereby backed it upon Mr. Long, and held it there for twenty-one years continuously, Mr. Benscoter would undoubtedly have what is called an easement in that part of Long’s land, that is, a right to enter upon his land by the water of the pond, but plaintiff would not thereby become the owner of the land under it. He would have a right to keep the water at that height for the purpose of supplying the mill, and Mr. Long could not compel him to lower it, but by keeping it there for twenty or any other number of years, Mr. Benscoter would not thereby become the owner of the land under the water. Was the water in 1793, and about that time, at its ordinary height upon the Hazlehurst ? If not, was it put upon the Hazlehurst by the dam built by the Benscoters in 1843 or 1844, and has it been kept there since that time ? “ [If you find as a matter of fact, from the credible evidence in the case, that Clinton Long owned any substantial part of the land covered by this pond — and J mean by substantial, two, or three, or four or five or six rods as indicated by some of the maps — then it is not a private pond. The Supreme Court has held, under the section of the act of 1876, of which this section is a transcript, that in order to constitute a private pond, the plaintiff (in that case the prosecutor) must be the owner of the whole of the pond, otherwise it is not private.] [10] “ This action, although stated in the different forms in the declaration, is based upon the act of 1878. If, therefore, you find as a matter of fact that the Hazlehurst line crosses any substantial part of this pond, this action cannot be maintained, and the verdict should be for the defendant. Suppose however you concluded that the Hazlehurst line is on the shore at or above the ordinary height of the water, then, you may find that the pond is private; but you will first inquire whether the pond was used or improved by the owner for the propagation of fish. What evidence is there that it was so improved ? What improvements for the propagation of fish were put upon this pond by Mr. Benscoter? Propagation of fish means the increase and spread, by artificial and natural means, by the spawn and by the placing of fish in the pond. Is there any evidence in the case that Mr. Benscoter did anything to improve the pond for that purpose ? The court does not remember any evidence of that kind. You will then inquire, also, whether it was used by Mr. Benscoter for the propagation of fish? On that branch of the case what was done ? Mr. Benscoter testified that several years ago he purchased and stocked this pond with 115 black bass and other sorts of fish, so that it would seem to a certain extent that he stocked the water. The evidence is that the fish did propagate and that there were black bass and other fish in the pond on the 5th of September, 1889, and for a short time before that. [The stocking of this pond by Mr. Benscoter, and the care which he says he exercised over it afterwards, is perhaps sufficient to warrant the jury in finding that it was used by him for the propagation of fish.] [12] [It is also necessary that Mr. Benscoter prove that he gave public notice as required by the act, and that such notice was posted adjacent to the pond. If Mr. Long were a stranger, and had no knowledge of the claim of the ownership of this pond, the notice here offered would not be sufficient to entitle the plaintiff to recover under this section of the act. Mr. Long did know and recognized the fact that Mr. Benscoter at least claimed to be the owner and claimed to be in possession of this property, below the Hazlehurst line. This notice, therefore, is sufficient warning under the act] [13] to Mr. Long. You will have the map which it is claimed was made by Mr. Sturdevant in 1860, and, also, the map made by Mr. Leuffer in 1843 or 1844. “You will observe that one of the main questions for the jury to decide is the location of the Hazlehurst line. If it does not cross the water of this pond at its ordinary height, then you may find that the whole of the pond was in the possession of Mr. Benscoter. If you shall find that the Hazlehurst line does cross and cover a material or substantial part of the water, the pond is not private under this section, and Mr. Benscoter cannot recover in this action. If you shall find that Mr. Long is simply a shore owner, that is, if the Hazlehurst line is along the shore, and not in the water, he had not the right to fish where he testifies he did. He must be an owner of part of the land covered by the water in order to defeat Mr. Benscoter’s action in this case.” Plaintiff’s points were among others as follows: “ 2. If the jury believe the evidence of plaintiff and of Abram Benscoter, the plaintiff, John Benscoter, is the owner, lessee and occupier, of South Pond within the meaning of the statute of 1878, providing a penalty for trespassing upon the lands of another for the purpose of fishing. Answer : I do not recall exactly what Mr. John Benscoter swore to. Assuming that he testified that he was the owner of the whole of the pond, if you find that to be the case, and that he did so testify, then his point is affirmed.” [7] Defendant’s points were among others as follows: “ 4. Under the undisputed evidence in this case a portion of the pond in question is upon the Samuel Hazlehurst tract, and the plaintiff has shown no ownership, occupancy or lease in him of a private pond within the meaning of the statute, and the verdict must be for the defendant. Answer: I decline to affirm that point. It is a question for the jury to ascertain where that line is.” [8] “ 5. The plaintiff has shown no legal or equitable paper title either in himself as owner, or in any person from whom he claims, to any part of the pond in question at the time of the alleged trespass, and there is no sufficient evidence of such title by possession to enable him to maintain this action, and the verdict must be for the defendant. Answer: I decline to affirm that point. ' The substance of the point is, that the plaintiff has not shown a legal title to any part of the pond. The plaintiff has shown, for the purpose of this case, title to the Hazlehurst line.” [5] “ 6. The plaintiff has shown no legal or equitable paper title either in himself as owner, or in any person from whom he claims as lessee or occupant, to the Benjamin B. Morgan tract, or to that part of the pond in question, situate upon said tract where the trespass is alleged to have been committed, and there is no sufficient evidence of title in the plaintiff by possession to enable him to maintain this action, and the verdict must be for the defendant. Answer: That point I decline to affirm. I think Mr. Benscoter has shown title and possession up to the Hazlehurst line, sufficient for the purposes of this case.” [8] “ 7. There is no evidence that at and prior to the time of the alleged trespass either the plaintiff or any one acting for him had posted, adjacent to the pond, a public notice that such pond was a ‘ private pond used or improved for the propagation of fish or game fish,’ as required by the statute, and the verdict should be for the defendant. Answer: That point I decline to affirm. While the notice offered here might possibly be defective as to strangers, with the knowledge shown in this case that Mr. Long had of the claim of ownership and possession of Mr. Benscoter there, it is sufficient.” [14] “ 8. If the jury find that a portion of the pond in question is upon the Samuel Hazlehurst tract, their verdict must be for the defendant. Answer: If that point simply mean a foot or two in width, the point is not well taken, but if it mean several yards or any substantial part of the water, the point is affirmed.” [9] “ 9. If the jury find that there has always been a natural stream of water flowing over lands not owned, leased or occupied by the plaintiff, and in the northerly part of the pond in question, and that, unobstructed by any natural or artificial means, the fish and game fish have been able to- pass from the pond into the stream and from the stream into the pond, then there has been no such use or improvement of the pond in question as is necessary to bring this case within the statute, and the verdict must be for the defendant.” Refused. [11] “12. A prescriptive right to enter upon the lands of another and fish in his waters, in common with that other, may be acquired from continued uninterrupted adverse use by the owner of the adjoining land, and those who formerly owned such land for the period of at least twenty-one years. Answer : I decline to affirm that point. As an abstract question of law it is not questioned, but the evidence in this case offered on the part of the defence does not warrant the court in submitting the question to the jury.” [15] “ 13. If the jury find that Joseph B. Long, the defendant’s father, lived upon the land acquired by him as already stated, from the time of its acquisition to his death, in 1874; that since his death the defendant has owned and continuously occupied the same property; that the father during the period of his occupancy and the defendant since 1864, respectively and as incident to their respective ownerships of these adjacent lands, continuously and uninterruptedly asserted a right to enter upon the pond in question and catch fish and did so continuously and uninterruptedly enter thereon and fish; that the assertion and exercise of this claim of right was continuously known to the plaintiff during his ownership of the pond and to those who may have preceded him in such ownership meantime, and that neither he nor his predecessors granted permission to defendant or his father to fish, on the one hand, nor attempted to interfere in that behalf until the year 1888, then the defendant, on the occasion of his fishing in September, 1889, has a perfect legal right so to do, and was not a trespasser and the verdict should be in his favor. Answer: That point I decline to affirm. Under the evidence in this case, the point does not apply; repeated acts of trespass upon the part of the defendant did not ripen into a prescriptive right.” [16] Verdict and judgment for plaintiff for $100. Defendant appealed. Errors assigned were (1, 2) admissions of evidence; (3-16) instructions; quoting bills of exception and instructions as above. The evidence was not sufficient to show that the pond was a private pond within the meaning of the act: Act of June 3, 1878, P. L. 160; act of May 4, 1876, P. L. 102. The evidence of title was insufficient: Olewine v. Messmore, 128 Pa. 480 ; Garwood v. Dennis, 4 Bin. 314; act of May 22, 1878, P. L. 98. Those portions of the Morgan and Watson tracts covered by this pond have, under the evidence, been actually occupied no-more by plaintiff than by dozens of his neighbors. What he has done even on the borders of this pond, is not shown by any evidence, if we except that of the construction and maintenance of the dam at its outlet or southern end, but this would not give him title by possession to the bed of the pond: Mfg. Co. v. Strafford, 51 N. H. 455; Corning & Horner v. Nail Factory, 34 Barb. 529. If the court, as matter of law, can say that a pond is a private one under the act of assembly, notwithstanding the alleged private owner does not own a strip one and nine tenths rods wide across the whole end, — then with equal propriety it may be ruled, as a question of law, that the alleged private ownership may exist in the absence of ■ a strip, five or ten or twenty-five rods wide, and so on indefinitely until it becomes a question only which of two different parties, each claiming-sole ownership of a pond, has the larger portion. The “use” of this pond “for the propagation of fish or game fish,” consists solely, under the evidence, of the plaintiff having at one time put in some black bass, at another some trout that had never been heard of since, and at another some white chubs. Appellant did equally as much in that direction. Nor was there any “improvement” whatever “for the propagation of fish or game fish.” The notice was insufficient. There was no claim that the pond was private or that it had been used or improved for the propagation of fish. Title was sufficiently shown in Benscoter: Olewine v. Messmore, 128 Pa. 480; James v. Letzler, 8 W. & S. 192; Warner v. Henby, 48 Pa. 187; Townsend v. Kerns, 2 Watts, 180. The court left it to the jury to say whether any material part of this pond was on the Hazlehurst warrant, and the jury found that there was no material part of the pond upon that tract. Had the appellant printed the maps showing this location that were offered in evidence, as they could have done, the correctness of this ruling would be seen at a glance. This was not the case of Reynolds v. Com., 93 Pa. 458. In that case there was no dispute regarding the facts. It was an admitted or well proven fact in that case that the prosecutor did not own a large portion of the pond in dispute. The evidence regarding the public notice was all the statute required. • Appellant had no prescriptive right to fish as indicated in the 16th assignment of error: Cobb v. Davenport, 32 N. J. L. 369; Hughes v. Stevens, 36 Pa. 320; Wheeler v. Winn, 53 Pa. 122; Tinicum Fishing Co. v. Carter, 61 Pa. 21; Bennett v. Biddle, 140 Pa. 396 ; Baylor v. Decker, 133 Pa. 168.
157 Pa. 224Miller's Estate (1893)The auditing judge disallowed the claim
Appeal, No. 138, Jan. T., 1893, by Wm. M. Miller & Co., from O. C. Luzerne Co., dismissing exceptions to adjudication of account of Peoples Bank of Wilkes-Barre, administrator of Wm. M. Miller, deceased. Adjudication of administrator’s account.
157 Pa. 231Bradbury v. Kingston Coal Co. (1893)Defendant appealed
Appeal, No. 193, Jan. T., 1893, by-defendant, from judgment of C. P. Luzerne Co., Jan. T., 1889, No. 36, on verdict for plaintiff, Rowena Bradbury. Trespass for death of plaintiff’s husband. Before Rice, P. J. The facts appear by the opinion of the Supreme Court. The court charged in part as follows : “ The employer is bound to furnish machinery and appliances that are of ordinary character and reasonable safety, and the former is the conclusive test of the latter; whatever is, according to the general use, the ordinary course adopted by those in the same business is reasonably safe within the meaning of the law. So that if it depended simply upon the question whether the use of the spring cotter in place of a burr and a spring cotter at the time this engine was put in was negligence, we should say to you that it was not, because, according to the testimony of witnesses here, about which there can hardly be any room for doubt, this was one method at least which was in very common use. But it is argued that even if this was so, yet the device used by the defendant company differed from the spring cotter in ordinary use. The points of difference to which your attention has been directed are, that in the spring cotter which is usually furnished by manufacturers of these engines the inner side of the wire is flattened, while in this case the wire was left in its original round state. I have carefully examined the testimony, and while it does appear that there is that difference, yet I do not recollect any witness who testified that the use of a wire of proper material, even though it were round and were put in in the same way that this was, would not be as safe as the use of the spring cotter which is manufactured and furnished by the wholesale. If it was as safe as that which is ordinarily furnished with such engines as the contrivance for the purpose of holding the bolt, we do not think that the defendant company ought to be held guilty of negligence, because they did not use the precise form of cotter which is usually furnished. “ But there remains the other question, and this is a question of fact to be determined by the jury. It appears from the testimony that this engine was put in place in 1881. The accident occurred in October, 1888. According to the testimony of the engineer this cotter had to be taken out about four times a year and put back again, and he has described to you the method in which it was taken out and the method in which it was put back, and in view of this testimony we submit to you this question: Had the key or cotter become so weakened by use that it was no longer safe, and did the defendant know or ought the defendant to have known that fact by the exercise of ordinary care and diligence ? You are not to determine this question by looking backward to see what actually did take place. If a man could see ahead as well as he can see backwards he would make very few mistakes, so that you are not to judge of this question by what has transpired, but what, in the exercise of ordinary care and diligence, the defendant knew or ought to have known at the time the accident took place. [If the fact that the use of such a contrivance for that period of time in the way that it was used would have the effect of rendering it weak and unsafe, and such as a man of ordinary care and prudence ought to have known, then knowledge was brought home to the defendant company. But if it was a fact which would not have been known in the exercise of ordinary care and prudence, but was a fact which, while proved, would only have been known by the exercise of extraordinary knowledge, skill and care, then the defendant company would not be affected with notice because they did not know it. In considering this question you are to take into consideration the length of time it had been in use, the manner of its use, the nature of the material, and the examination and inspections that have been made. We may say to you that if you find it had been carefully and frequently examined, and upon such examination no defect appeared in it, then the defendant company would not be guilty of negligence in continuing its use. But if you find, however, from all the circumstances in the case to which we have called your attention, that > ■ was defective, that it had become defective by reason of use, <. >d that this was a fact which the defendant company knew or ought to have known in the exercise of ordinary care and prudence, their it was their duty to replace it, and they would be guilty of negligence in not so doing.] [1] “ So much for the allegation of negligence upon the part of the defendant company. [Was the deceased guilty of contributory negligence t Has it turned out that it was not necessary for him to have jumped from the carriage ? If he had remained upon the carriage he would have escaped without injury, as did the others; but that fact is not conclusive by any means upon the question of his negligence. That is to be determined by a consideration of the danger which he appeared to be in ; and if a man of ordinary care and prudence would, in view of the danger that appeared, have pursued the course that he did, he could not be guilty of negligence, even though it turned out that it was a mistaken course.”] [2] Defendant’s points were among others as follows : “ 7. The plaintiff having proved that the breaking of the spring cotter was probably due to bending and hammering by the engineer, and that the accident was caused by its breaking, the plaintiff cannot recover, for the reason that the negligence, if any, was that of a fellow servant. Answer: We decline to charge as requested in that point. We say to you, however, if the accident was occasioned by the negligence of the engineer, either in that particular or in any other particular, then the plaintiff could not recover, because it would be the negligence of a fellow servant.” [8] “ 9. That under all the evidence, the verdict of the jury must be for the defendants. Answer: We decline to charge as requested in that point, because it would have the effect of withdrawing from your consideration the question of fact, which we think it is your province to decide.” [4] Verdict and judgment for plaintiff for $4,500. Errors assigned were (1-4) instructions, quoting them. In an action by an employee against his employer, in the absence of definite proof of some negligence which directly or naturally results in injury to the employee, the accident is regarded as one of the hazards of the employment of which the servant takes the risk, and for which there can be no recovery : Mensch v. P. R. R., 150 Pa. 598. A mine owner should be allowed to rely on the judgment of the man whom the law compels him to emplojr for the purpose of judging machinery. The law will not hold him guilty for not knowing more than his inspector. It was the duty of defendants to furnish those in their employ with ordinary machinery, such as, with reasonable care, may be used with safety. This was the precise measure of their duty, nothing more, nothing less : Shaffer v. Haish, 110 Pa. 575; Augerstein v. Jones, 139 Pa. 189. The breaking of the pin, which immediately prior to the accident showed no defect or weakness, was no evidence of negligence : Baker v. R. R., 95 Pa. 211. The danger was one of the risks of employment: R. R. v. Bresmer, 97 Pa. 103 ; P. & C. R. R. v. Sentmeyer, 92 Pa. 276 ; Sykes v. Packer, 99 Pa. 465; North Cent. R. R. v. Husson, 101 Pa. 7; Allison Mfg. Co. v. McCormick, 118 Pa. 519; P. & R. R. R. v. Hughes, 119 Pa. 301. Deceased contributed by his own reckless conduct to cause the accident and injury complained of. The accident was due to the negligence of a fellow servant. —Defendant neglected the duty of proper inspection: R. R. v. Huber, 128 Pa. 63; Mensch v. R. R., 150 Pa. 598. If an opportunity to discover the defect was shown to have existed, and attempt to repair was made, then a condition of liability would arise, in which the absence of exculpatory proof would justify an inference of culpable negligence: R. R. v. Huber, 128 Pa. 63; Baker v. Allegheny V. R. R., 95 Pa. 211. It is the duty of employers to renew instruments of this character at proper intervals. The expense would certainly not be great, and a due regard for the lives of their servants imperatively demands it: Whart. Neg. § 210; Schall v. Cole, 107 Pa. 1; Ford v. R. R., 110 Mass. 241; Phila. R. R. v. Keenan, 103 Pa. 124. It is the master’s duty to be careful that his servant is not induced to work under the notion that tackle or machinery is staunch and secure, when in fact the master knows or ought to know that it is not so: Beach, Neg. § 136; Frazier v. Pa. R. R., 38 Pa. 104. It is the master’s duty to keep himself informed of the condition of his machinery, and notice of a defect will be presumed after the lapse of a sufficient time: Kibele v. Phila., 105 Pa. 41; Reese v. Payne, 100 Pa. 301; Mullan v. Steamship Co., 78 Pa. 25; Wood’s M. & S. § 366; Railroad v. Lempe, 11 A. & E. R. R. Cas. 201; Patterson v. R. R., 76 Pa. 389; Shaffer v. Haish, 110 Pa. 577; Augerstein v. Jones, 139 Pa. 189; Pittsburgh R. R. v. Sentmeyer, 92 Pa. 280; McKee v. Bidwell, 74 Pa. 218. If a man of ordinary care and prudence would, in view of the danger that appeared, have pursued the course he did, he could not be guilty of negligence even though it turned out that it was a mistaken course: Schall v. Cole, 107 Pa. 1: Penna. R. R. v. Warner, 89 Pa. 59. The engineer was not a fellow servant: Mullan v. Steamship Co., 78 Pa. 32; P. & R. R. v. Hughes, 119 Pa. 315; Baker v. Allegheny V. R. R., 95 Pa. 211; Lewis v. Seifert, 116 Pa. 647 ; Rummell v. Dilworth, 111 Pa. 351. The case was properly left to the jury : Kehler v. Schwenk, 151 Pa. 517.
157 Pa. 246Collins v. Lynch (1893)Verdict and judgment for plaintiff
Appeal, No. 360, Jan. T., 1893, by defendant, Sarah A. Lynch, from judgment of C. P. Luzerne Co., March T. 1889, No. 86, on verdict for plaintiff, John Collins. Ejectment. Before Rice, P. J. At the trial, defendant introduced evidence which tended to show that prior to 1827 John Shepherd was in possession of the land in controversy as a trespasser, and that he had not acquired title by adverse possession. On Jan. 10, 1827, by an instrument in wilting he sold and transferred his possession to his daughter, Sally Ann Collins, the wife of William Collins. Mrs. Collins and her husband went to live on the land, and Mrs. Collins lived there continuously until her death on May 2,1879. William Collins died either in 1857 or 1859. In 1853, an ejectment was brought against William Collins and Truxton Benedict for the land in question, and a verdict was rendered against William Collins on Dec. 2, 1859. No judgment was entered upon the verdict and no change of possession of the land took place in consequence of these proceedings. In 1872, four of the children of Sally Ann Collins, viz.: Jacob A. Collins, William Collins, John Collins and the defendant, Sarah A. L3'nch, bought the record title. In 1885, the land was sold under a judgment against Sally Ann Collins and was bought in by the defendant. Plaintiff offered in evidence the record of the ejectment, Charles Wurts v. William Collins and Truxton Benedict, to show that an action of ejectment was begun against William Collins for the whole of the Jesse Fell tract of land in 1853, and that a verdict was rendered for the plaintiff and against the defendant, William Collins, for the land described in the writ, showing that the possession of the Collins, was not peaceable and quiet for the length of time required by law. Also for the purpose of showing, it appearing in evidence now that the claim of Sally Ann Collins is for the Jesse Fell tract, this suit also having been for the same tract, and the verdict having been in favor of the plaintiff and against William Collins in that action, that it is a bar to the defendant’s recovery in this present suit. For the purpose also of showing that the title or claim under which Sarah Lynch claims title was not adverse and peaceable, but was contested and disputed and successfully defended against. Defendant’s counsel objected to the evidence proposed as not evidence for the purpose stated. Objection overruled, evidence admitted and bill sealed. [2] Plaintiff also offered in evidence the record of the ejectment, E. B. Sturges et al. v. Enos Collins and Sarah Ann Collins, for the land in dispute, exit Sept. 23,1878; summoned and service sworn to. Offered for the purpose of showing that Sarah Ann Collins’ possession was not adverse and peaceable, and for the purpose of showing that Sarah A. Lynch joined as a plaintiff in this action against her mother, the party under whom she now claims, and that she cannot set up a contrary title now1 for the purpose of defeating the plaintiff in this action. Objected to as not competent for the purpose proposed. The Court: We will admit the testimony. We think it admissible as bearing at least upon the question of Sally Ann Collins’ possession. Bill sealed for defendant. [3] Plaintiff offered in evidence in rebuttal the lease between J. A. Collins, R. T. Bliss et ah, and J. M. Armstrong and wife, for the purpose of affecting the possession of Sally Ann Collins, under whom Sarah Lynch, or Sarah Armstrong, claims title, for the purpose of showing that at one time the defendant in this suit admitted by signing this lease, or assenting to its being signed for her, that the title was not in Sarah Ann Collins. Also for the purpose of estopping her from setting up any outstanding title contrary to this instrument. Also for the purpose of contradicting the witness, Sarah Lynch. Objected to as not competent evidence for the purpose proposed. Admitted and bill sealed. [6] The court charged in part as follows: “ [The first inquiry is, What was the nature and character of the possession of Sally Ann Collins during the lifetime of her husband ? Presumptively, owing to the legal relation of husband and wife, she had no possession distinct from that of her husband, and therefore acquired no title by possession during his lifetime. Her possession was his possession, and, upon his death, his title by possession, if one had been acquired in that way during their joint occupancy of the premises, would descend to his heirs. We say presumptively this wmuld be the nature of the possession in the absence of any evidence to show that William and Sally Ann held the possession in her right exclusively. The defendant has put in evidence a paper purporting to have been executed in January, 1827, whereby John Shepherd, the father of Sally Ann Collins, conveyed to her his possessory right in the Jesse Fell tract. Without stopping at this time to comment on the question as to the definiteness of this paper, or as to its genuineness, we instruct you, in the first place, that this paper did not give title to the land, because it does not appear that John Shepherd had any title to convey. In the second place, it is not evidence that John Shepherd had any possession or possessory right as against the holders of the recorded paper title: — it does not show that he had any possession of the premises which was transferred to her, to which her possession was tacked. In other words, it does not show that her title by possession, if she has acquired one, had its inception at an earlier date than when she went into the actual occupancy of the premises. In the third place, if the paper is genuine, it is evidence to show the nature and extent of her claim, and, in connection with the oral evidence of witnesses of her declarations while in possession of the land, would tend to show that she claimed to hold possession of the land in her own right, and not in that of her husband. But, on the other hand, while there was some attempt to show that her husband, William Collins, had little to do with the farming operations there, it does appear that he did work upon the land, that he worked at his trade, that he exercised the ordinary acts of ownership which a man does exercise in possession of such property, and it does not appear, so far as we recollect, in the testimony, that he assented to this exclusive claim, set up by his wife. On the contrary, if the testimony of Jacob Weaver, a son-in-law, and a witness called by the defendant, is to be believed, William Collins claimed the land in his own right under a purchase from Henry Drinker, or under some arrangement with Henry Drinker, whatever that may be. In view of this and the other testimony in the case, we instruct you that the circumstances are insufficient to overcome the radical, legal presumption that the possession of a husband and wife, in joint occupancy of premises as a home, is the possession of the husband. This being so, it follows that Sally Ann Collins acquired no title by possession, prior to the title of her husband.] [1] “ If Sally Ann Collins did not acquire title by adverse possession during the lifetime of William, did sbe acquire title by adverse possession after his death? It is claimed on the part of the defendant that she did, and that is the question of fact which we purpose to submit to you; namely, was she for twenty-one years after the death of her husband in the actual, adverse, exclusive, uninterrupted, notorious possession of the premises for twenty-one years ? That she was in possession from the time of the death of her husband until the time of her own death is undisputed; but it is claimed, in the first place — and this we submit to you as a question of fact — that there was not twenty-one years of time between the death of her husband and her own death; and it is contended, in the second place, that her possession was not exclusive of the owners of the Wurts title. If the defendant resided upon the premises during the same period of time, if she was there under her mother, recognizing her mother’s claim, then that would not interfere with the exclusiveness of the possession of Sally Ann Collins. [But if during this period between the death of William Collins and the death of Sally Ann Collins, Sarah Ann Lynch was in possession claiming under the Wurts title, it would have the effect of breaking the continuity and exclusiveness of the possession of her mother. This will require you to consider the testimony with regard to the nature of the possession of Sarah Ann Lynch during that period of time. For it does appear that in 1872, sbe, with three of her brothers, took a deed for the Wurts title, which was recorded. It appears also that in 1878 an action of ejectment was brought by these same parties against the mother, Sally Ann Collins. While the bringing of the action of ejectment would not of itself break the continuity of the possession of Sally Ann Collins, it is, nevertheless, a fact to be considered by the jury in determining what was the nature- of the claim which Sarah Ann Lynch was setting up whilst she was in possession ; and, of course, you will take into consideration her testimony, denying any knowledge of that suit or authority to bring it. If she authorized the suit to be brought — and presumptively she did — then it would be a fact bearing upon that question as to whether or not she herself was in the actual possession of the premises, or a portion of them at least, under this Wurts title, and thus adversely to the possession of her mother.] [4] “ [So also you will take into consideration the testimony as to this lease that has been offered in evidence. If, when it was presented to her, she refused to sign it, to have anything’ to do with it, or to recognize the claim which was made under it, then it ought not to have any bearing in your consideration of the question. If, however, this lease which purported to be a lease of the land under the Wurts title, recognizing the title which they had bought from Wurts’estate — if when that, was presented, she acquiesced in its execution by John M. Armstrong, in the manner that it was executed, it would be a circumstance tending to show the nature of her possession during that period of time.] [7] “You will inquire then, whether or not from the time of the death of William Collins until the death of Sally Ann Collins, there was a period of twenty-one years, and whether or not Sally Ann Collins was during that time in the actual, adverse, notorious, open, exclusive possession of the premises. If she was, then she acquired title to the premises, which was subsequently acquired by the defendant by virtue of the sheriff’s sale. If she was not, then she had not such title as would pass by that sale, and your verdict should be for the plaintiff.” Defendant’s points were among others as follows: “ That the action of ejectment in 1878, by the purchasers of the Wurts title, against Sally Ann Collins, if it was authorized by Sarah Lynch and had any effect at all as to possession, it would be an admission upon her part that the possession was in Sally Ann Collins. Answer: It would undoubtedly be an admission that Sally Ann Collins was in possession — an admission for the purposes of that suit — but it would not prove that she herself was not in possession as against the actual fact that she was, as proved by the testimony in this case.” [5] “ 2. If the jury find that Sally Ann Collins went into possession of the land under a transfer from her father and continued the same uninterruptedly, claiming the same as her own, for a period of twenty-one years prior to 1858, the time of the ejectment against her husband and Truxton Benedict, then her title by possession would be complete and would not be affected by the said ejectment. Answer: This point is answered in the negative, for reasons that we have already given.” [8] “ 3. If the jury find that she thus took possession claiming in her own right, and continued the same thus for the term of twenty-one years, her title would not be destroyed by the claims or acts of her husband made or done without her assent.” Refused. [9] Errors assigned were (1, 4, 5, 7, 8, 9) instructions, and (2, 8, 6„) rulings ; quoting instructions and bills of exceptions. Plaintiff cannot recover but upon the strength of his own title: Roe d. Haldane & Urry v. Harvey, 4 Burrows, 2484; Welker v. Coulter, Add. 390; Covert v. Irwin, 3 S. & R. 283; Lehman v. Howley, 95 Pa. 300. The statute of March 26, 1785, bars the right of a plaintiff to make entry, or to maintain a possessor}' action, after an adverse possession of twenty-one years: Kennedy v. Skeer, 3 Watts, 95; Hole v. Rittenhouse, 25 Pa. 491; Burford v. McCue, 53 Pa. 427. The court below' speaks of the fact that the husband worked upon the place when at home, as though that destroyed the possessory title .of his wife acquired from her father. It is to be borne in mind that a title to land by possession is a title to realty, and is to be considered and treated as such, the same as a title acquired in any other way. It is simply inchoate during any period short of twenty-one years. And in view of the rulings of this court as to the effect of such action of the husband, in many and varied cases, in w'hich the question has been presented, this ruling of the court below was clearly erroneous: Rush v. Vought, 55 Pa. 437 ; Brown v. Pendleton, 60 Pa. 419; Musser v. Gardner, 66 Pa. 242; Silveus’s Exrs. v. Porter, 74 Pa. 448; Seeds v. Kahler, 76 Pa. 262; Holcomb v. Savings Bank, 92 Pa. 338 ; Troxell v. Stockberger, 105 Pa. 405; Shuster v. Kaiser, 111 Pa. 215. The court below speaking of the conveyance of his possessory title by John Shepherd to his daughter, says “ we instruct you in the first place, that this paper did not give title to the -land, because it does not appear that John Shepherd_ had any title to convey.” We submit that this instruction was at variance with the law as set forth by the court in Overfield v. Christie, 7 S. & R. 173 ; Mercer v. Watson, 1 Watts, 330, 338; Parker v. Southwick, 6 Watts, 377 ; Graffius v. Tottenham, 1 W. & S. 488; Mead v. Leffingwell, 83 Pa. 191. There is no conclusive presumption, no presumption juris et de jure, which forbids a daughter taking from her father a transfer of an inchoate possessory title and carrying it forward to completeness, because she is married and her husband lives with her. In the present case it was a question of fact for the jury whether Sally Ann Collins had so done. Whether the possession is to be considered that of Sally Ann Collins or that of her husband, in either case, a continuous, adverse possession against the Wurt’s title, for twenty-one years during his lifetime would avail as a defence in the present issue, and therefore it should not have been taken from the jury. If the ejectment commenced in 1853 against William Collins had been prosecuted to judgment and execution in his lifetime, the plaintiff therein would undoubtedly have been putin possession of the land, for it was the duty of William Collins to defend the possession of the land under his wife’s title, and execution could not have been hindered by reason of his neglect so to do: Johnson v. Fullerton, 44 Pa. 466. But as is shown in that case, Sally Ann Collins’ title would not have been affected by such verdict and judgment. If made aware of the judgment in time she should have applied to have it opened and a defence allowed: Lewis v. Brewster, 57 Pa. 410; Pederick v. Searle, 5 S. & R. 236 ; Lewis v. Bradford, 10 Watts, 67 ; Schall v. Williams Valley R. R., 35 Pa. 191. But in this ejectment no judgment was at any time entered, and of course no execution, and it had no effect whatever on the possession. Nothing is clearer than “ that such a recovery ” is not equivalent to an entry even to bar the statute of limitations, and therefore not equivalent to actual possession : Powell v. Smith, 2 Watts, 126; Caldwell v. Walters, 22 Pa. 378; Workman v. Guthrie, 29 Pa. 495; Bennett v. Morrison, 120 Pa. 390. Where a charge as a whole misleads the jury it is error : Wenger v. Barnhart, 55 Pa. 300; Stall v. Meek, 70 Pa. 181, Pa. Canal Co. v. Manning, 87 Pa. 240; Bisbing v. Third Nat. Bank, 93 Pa. 79. —There was no sufficient evidence of any disputed facts to submit the question to the jury ; and the legal conclusions were clearly in line with the authorities on this question: Sed. & Wait, Trial to Title to Land, § 255; Rose v. Bell, 38 Barb. 25; Walker v. Reamy, 36 Pa. 410; Bellis v. Bellis, 122 Mass. 414. The evidence of the ejectment against Wm. Collins was properly admitted: Truby v. Seybert, 12 Pa. 101; Johnson v. Fullerton, 44 Pa. 466. The testimony regarding the lease was not submitted by the court to the jury, as appellant’s counsel argues, to estop appellant from impeaching the Wurts title, under which she joined her brother, the appellee, as a purchaser, and which title she recognized under said lease, but simply as a “ circumstance to show the nature of her possession.” We submit that the appellee was entitled to have this testimony, if believed by the jury, submitted to them as an absolute estoppel of her right to deny the Wurts title, and that under which she leased: Horton v. Davidson, 135 Pa. 186; Miller’s Ap., 84 Pa. 391 ; Sutton’s Ap., 112 Pa. 598; Woodward v. Tudor, 81* Pa. 382; Velott v. Lewis, 102 Pa. 327 ; Weaver v. Craighead, 104 Pa. 288. The court would have been justified in giving the jury binding instructions to find the verdict they did, instead of submitting to them as questions of fact, whether the appellant had made out a defence of “ actual adverse, notorious, open, and exclusive possession to the premises : ” Horton v. Davidson, 135 Pa. 186 ; Donavan v. Driscoll, 93 Pa. 509. At common law a married woman living with her husband could acquire title to land by adverse possession, but we do not think she could do so without the express or implied assent of her husband. Where this is shown, the possession, although, strictly speaking, that of the husband, would inure to her benefit, and if continued long enough would finally ripen into title : Sawyer v. Kendall, 10 Cush. 241.
157 Pa. 257Commonwealth v. Clark (1893)Yerdiet, guilty, and judgment thereon
Appeal, No. 134, July T., 1892, by defendant, B. F. Clark, from judgment of Q. S. Huntingdon Co., May T., 1891, No. 7, on verdict of guilty. Indictment for perjury under act of April 14, 1874, P. L. 58, in affidavit that land was unimproved. Before Fhrst, P. J. The facts appear by the opinion of the Supreme Court. The affidavit made by defendant was to the effect that “ to his certain knowledge the land described is unimproved.” The court charged in part as follows : “The witnesses on the part of the commonwealth, not only the prosecutors, but other witnesses called, surveyors who have gone upon the land, have sworn to yon that two thirds of the land embraced in this warrant surveyed to H. W. Pe trikin, which is sworn to bjr Mr. Clark as being a warrant for unimproved land, is well settled, improved farms; that there are various kinds of buildings upon the land; that the garden of Mr. Griffith, or the greater portion of it, is on these 201 acres; that, not only these buildings, but the schoolhouse of that district is built upon this tract of land, and school is held in that schoolhouse regularly; and that Mr. Clark is a voter and has for years passed through this land in going to the place where elections in his district are held. In addition to this testimony, there is other testimony on the part of the commonwealth, and for that matter on the part of some of the witnesses for the defendant, that there are old fences upon this land inclosing the fields. One witness, Mr. Africa, testifies that there are some fifteen or sixteen fields and seventeen fences which he crossed in making the survey. Other witnesses testify that there are several orchards upon this land, and that the land is cultivated regularly in grain and grass by these prosecutors. This is the burden of the testimony on the part of the commonwealth. Various witnesses have testified to that, and possibly portions of that testimony was given by witnesses of the defendant. “ [The defendant has called witnesses to prove that there is no dwelling on this particular piece of land. You will notice, in that connection — and I think it is something bearing upon the case — that the application of Mr. Petrikin for 75 acres referred to in this application, and also referred to in the defendant’s testimony, embraces a little piece of land perhaps northeast of the 201 acres. All the witnesses who testified on the subject testified that the stone house of Mr. Griffith is on that piece of land, which is termed vacant here ; and the defendant says that the stone house, therefore, is on the 75 acres and not on the 201 acres. Mr. Griffith, however, occupied that house as his home and dwelling; he claimed and improved, or purchased the improvement from his predecessors, as early as in the fifties ; and his heirs since his death have occupied part of the same laud. If his dwelling house he on the seventy-five acre piece, as contended by the defendant in his testimony, then I do not see how, by the separation of this land into two parcels, it could be said to the jury that the case does not fall within the principles of the law, because, by a similar application for a tract of land, this application puts the dwelling house on that; and then he applies for the balance of this property as vacant land. 1 do not think it can be separated in that way. We must, in other words, regard that land just as it was at the time Mr. Petrikiu’s surveyor went there; and just as it was when Clark made this affidavit.] [14] . . . “ [The act of 1889, referred to as being an amendment of the third section of the act of 1874, we think has no relation to the present case. We think that that relates to a controversy between persons, in the civil courts, where one person claims a piece of land and his claim is resisted by another who claims that he holds the land as improved land. Such a controversy is one arising between individuals in the civil courts or before the board of property or the secretary of internal affairs. The law that governs this case is the second section of the act of 1874, and the first section with regard to the requirement of a disinterested witness to prove that the land was either improved or unimproved.] [15] The second section forbids the issuing of a warrant for any land which may be improved, occupied, settled upon or cleared, except to the improver or to his legal representative, which has been construed to be his vendee or his heirs. . . . The defence in this case consists of the allegation that this defendant made this affidavit under the advice of counsel that it was unimproved land, while he was a resident of that township and knew that it was cleared and fenced, that orchards were growing there, and that this schoolhouse and certain other buildings were upon it. He says that, as there was no dwelling houses upon it occupied by any settler, he was therefore advised that it remained unimproved land. To support that defence he testifies that he had the act of assembly before him and conferred with counsel a short time prior to the making of this affidavit. You must remember that the affidavit was made on the 20th of. June; and I think he testifies that he had the pamphlet laws or act of assembly at that time. You will recollect his testimony on that point. If that be true, then the question of law arises, whether or not he honestly made this affidavit under a false impression of the provision of the law relating to improvement titles.” Defendant’s 4th point was as follows : “ Under all the evidence there can be no conviction.” Refused. [18] Errors assigned were (14, 15, 18) instructions, quoting them. -Under the acts of 1874 and 1889, and the law as it previously existed, what constituted an improvement was a question of law for the court-. Improvement rights under these acts may be acquired: (1) By an actual entry. (2) With the intention to make it a place of abode. (8) By tilling and clearing the soil for the purpose of gaining support. (4) By defining the limits of such claim by survey and well marked lines. The commonwealth must show a conversion of the vacant lands of the commonwealth into an improvement by entire compliance with legal methods, — by whom made, when, how, and for what purpose. AH the evidence showed that the land embraced in the Petrikin application was cleared, fenced, used and occupied and held by defined boundaries for at least 50 years. There were buildings, orchards, a schoolhouse, fences and fields cleared and cultivated for many years. A stone dwelling house, barn, stables and other buildings used and occupied as a place of abode for the tillers of the soil and for storing the crops raised on a large portion of the lands embraced in the application, stood just on the verge of it. The act of April 23, 1889, P. L. 46, has no relation to the case. Its title is, “ An act to amend section three of the act approved the 14th day of April, 1874, entitled, “ An act relative to the issuing of warrants to survey vacant land,” providing for the payment of purchase money and fees due the commonwealth, and regulating the consideration of caveats filed against the granting of patents.” It purports to be only an amendment of the third section of the act of 1874, and in no way affects the first and second sections of that act; neither is it inconsistent with them.
157 Pa. 264Miller v. Oestrich (1893)Verdict and judgment for plaintiff
Appeal, No. 82, Jan. T., 1893, by defendant, Mary Oestrich, from judgment of C. P. Huntingdon Co., May T., 1892, No. 14, on verdict for plaintiffs, David P. Miller et al. Issue devisavit vel non. Before Furst, P. J. The issues to be tried were as follows : 1. Whether the paper writing dated the 6th day of November, A. D. 189k purporting to be the last will and testament of Eliza E. Watson, was signed by her. 2. Whether said paper wilting dated the 6th day of November, A. 1). 1891, purporting to be the last will and testament of Eliza E. Watson, if signed and executed by her, was signed through or by the undue influence of Catharine Corbin, and wbetbor said Catharine Corbin procured it to be signed by fraud and by exercising an undue influence over her. 3. Whether the said Eliza E. Watson at the time of the alleged signing of the said paper writing, dated November 6, 1891, purporting to be her last will and testament, was of sound and disposing mind, memory and understanding, and competent to make a will. The facts appear by the opinion of the Supreme Court. The court withdrew from the jury tbe question of undue infinenee and testamentary capacity, and submitted the question of the genuineness of the signature alone. [10] Errors assigned were (10) above instructions, quoting them. The trial judge erred in expressing his private opinion of the evidence: Proffatt on Jury Trial, 306 ; Greenleaf on Evidence, § 691; Curtin v. Somerset, 140 Pa. 70 ; Rosenagle v. Handley, 151 Pa. 107; Steinbrunner v. Ry. Co., 146 Pa. 504; R. R. v. Alvord, 128 Pa. 42. Relating to the mental capacity of Mrs. Watson and the undue influence practiced upon her, counsel for appellant contend that after establishing the intimate relations existing between Mrs. Watson and Catharine Corbin, it is a matter of law that they were confidential, and the burden of disproving undue influence was on the plaintiff; and confidently submit the evidence in this case to determine them as present and potent powers affecting the making of this will: Dean v. Negley, 41 Pa. 312. When a considerable portion of the estate of the testator, whose mental faculties are impaired by disease, bodily suffering, trouble, etc., though not enough to destroy testamentary capacity, is given to one occupjdng a confidential relation, it raises a presumption of undue influence: Jones’s Ap., 11 W. N. 258; Darlington’s Ap., 86 Pa. 512; Miskey’s Ap., 107 Pa. 612; Pittock’s Est., 9 Pa. C. C. 457; Boyd v. Boyd, 66 Pa. 283; Cuthbertson’s Ap., 97 Pa. 163; Yardley v. Cuthbertson, 108 Pa. 395; Darlington’s Est., 147 Pa. 624; Herster v. Herster, 122 Pa. 252; Worrall’s Ap., 110 Pa. 349; Smith v. Loafman, 145 Pa. 628. The question to be solved by the jury — whether there was mental incapacity or undue influence practiced — arises under the circumstances, and the question is one of degree. There is no possibility of mistaking midnight for noon, but at what precise moment twilight becomes darkness is hard to determine: Carter’s Est., 29 W. N. 436. Old age, failure of memory or habitual drunkenness will not per se constitute incapacity to make a will. The test of capacity is, that the testatrix’s mind and memory were sufficiently sound to enable her to know and understand the business in which she was engaged at the time she executed her will. As a general proposition, less capacity is sufficent to make a valid will than to transact business : Thompson v. Kyner, 65 Pa. 368. Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative must be established not in a doubtful but in a positive manner: Grubbs v. McDonald, 91 Pa. 236 ; Wilson v. Mitchell, 101 Pa. 495 ; Shaver v. McCarthy, 110 Pa. 339; Harmony Lodge’s Ap., 127 Pa. 269; Napfle’s Est., 134 Pa. 492; McKim’s Est., 27 W. N. 110; McMahon v. Ryan, 20 Pa. 329; Eckert v. Flowry, 43 Pa. 46; Wainwright’s Ap., 89 Pa. 220 ; Trost v. Dingler, 118 Pa. 259; Thompson v. Kyner, 65 Pa. 368.
157 Pa. 278Bird Coal & Iron Co. v. Humes (1893)
No. 397, Jan. T., 1893, by-plaintiffs, from order of C. P. Centre Co., April T., 1891, No. 295, entering judgment of nonsuit in favor of E. C. Humes. Account render for secret profits alleged to have been wrongfully received by a director of a corporation. Before Barker, P. J., 47th judicial district, specially presiding. The facts appear by the opinion of the Supreme Court. The court below entered a compulsory nonsuit and subsequently refused to take it off, in the following opinion: “ It must be conceded that there can be no recovery here unless the plaintiff can show that the defendant received money to which the plaintiff in law or in equity would be entitled as a corporation, and we are still of the opinion that the receipt of money has not been shown of which any part, either in law, equity, or good conscience would belong to said corporation. The lease between the Bird Coal & Iron Company and James Sommerville was made without the knowledge of defendant; immediately upon learning of it, he took steps to have it legally set aside, asserting that it had been made upon such terms that it was disadvantageous to him, although advantageous to the stockholders instrumental in having it made; and, so far as shown by the evidence, all others interested acquiesced in this lease. The lessee, and those who were to obtain the coal from him, were anxious to have the lease consummated on some terms, and the latter agreed to pay to Mr. Humes, individually, such an amount, in addition to the amount to be paid to the corporation, as would make the lease advantageous to him, and induce him to remove the legal obstacle he had placed in its way. Why then should he share the proceeds of this arrangement with the other stockholders, who were satisfied with the amount previously agreed upon by the officers. He was not a party to the agreement of lease, except as bound by the acts of the corporate officers; the other stockholders, through the officers of the company, made an arrangement satisfactory to them, but unsatisfactory to him, and he, on his part, had a perfect right to make an arrangement supplemental to theirs, which made it satisfactory to him, and as we view the law, he would not be compelled to account to any one for the proceeds of this arrangement. “We concede that it is unusual for a dissenting stockholder in a corporation to realize on his stock in this manner, but where it is not done to the loss, prejudice, or injury of the other stockholders, and is not the result of contracts regarding corporate property which he had been instrumental in having made, we see nothing inequitable in it, and more especially where, as in this case, the money received was, so to speak, the price of his acquiescence in corporate acts, satisfactory to the other stockholders. “ But it was contended that when he became a director of the company there was such a fiduciary relation between him and the company that he would be bound to account for all money received from any dealings in regard to the corporate enterprise. But if we are correct in ruling that there can be no recovery from him for the amount received when he was a mere stockholder, we cannot see how liability would attach when he became a director. There was no new contract made, and he did not so manage the affairs of the compare, as a director, as to receive any secret profit detrimental to the interests of the company; he merely continued to receive the amounts due him according to the terms of a contract made before he became a director. We can readily see how a stockholder would be liable to a corporation for secret profits growing out of a contract which he had induced the company to make, and we can more readily see how a director would be liable to a corporation for a^^ amount received by him growing out of any transaction brought about b3r him as a director, but the facts of this case do not bring the defendant within the principles involved above. “Counsel for plaintiff relied on the general principles found in the text books to sustain their position. Let us see how far tliej' are sustained by the authorities cited by them. They cite Story’s equity jurisprudence, for the principle that the directors of a corporation are trustees for the shareholders, and are bound to the same rules of good faith as is required between principal and agent between each other.- ‘ On the whole, the doctrine may be generally sustained that wherever confidence is reposed, and one party has it in his power in a secret manner for his own advantage to sacrifice those interests which he is bound to protect, he will not be permitted to hold any such advantage.’ We know of no principle that would require an agent to return to his principal moneys received before his agency commenced, or after his agency commenced, under an arrangement made before whereby his principal suffered neither loss nor damage. When Mr. Humes made the agreement with Harned, Jacobs & Co., he did not have ‘ it in his power in a secret manner for his own advantage to sacrifice the interests he was bound to protect.’ He did not receive the money now sought to be recovered, because confidence had been ‘reposed in him.’ “ ‘ The directors of a corporation are so far trustees for the company, that they cannot derive directly or indirectly out of their position any profits or other advantage, save with the kno wledge and concurrence expressly or impliedly given by the company.’ Potter on Corporations, volume 1, page 441. Mr. Humes did not derive profits or other advantage ‘ out of his position ’ as a director. “ Morawetz on Corporations, Taylor on Corporations, Angelí & Ames on Corporations, were cited to sustain the principle that directors are liable to account for all secret profits made out of any dealings in regard to the corporate enterprise. The first author in the section cited says : ‘ They have no right under any circumstances to use their official position for their own benefit or the benefit of any one except the corporation itself.’ Mr. Plumes did not so use his official position. ‘ The directors of a corporation have no right to use either its assets or its credit or any of the powers of their office, except to advance the interests of the company, irrespective of their advantage or desires. Thus it has often been decided that the directors have no right to stipulate for a bonus or commission to be paid them by a person with whom they enter into a contract on behalf of the company, and it is equally well settled that they cannot by any arrangement secure to themselves a share in the profits of any transaction to which the company is a party.’ Mr. Humes neither used the assets or credit of the corporation nor any of the powers of his office in the transaction complained of, nor did he stipulate for a bonus or commission to be paid by any one with whom he entered into a contract ‘ on behalf of the company,’ and he did not, as a director, secure a share of the ‘ profits of any transaction to which the company was a party.’ “ ‘ Directors of the company cannot exercise their powers for their own personal ends against the interests of the company. The3r cannot derive any advantages from contracts made by their authority as directors, except through the company for which the3r acted: ’ Wardell v. Union Pacific Railroad Co., 103 U. S. 651, also cited by plaintiff’s counsel. We fail to see where Mr. Humes exercised any powers of "a director for his own ends ‘ against the interests of the company,’ or where he derived any advantage from any contract made by his authority as a director. “ Without further reference to the authorities cited, we might add that we find the same qualification running through them all, — that the transaction out of which the profits result or the director receives a benefit must be one to which the director was a party as a director, or in which he exercised his power as a director, and the principle invoked only having relation to the management of the corporate business. Nowhere do we find a director held liable, except he has used his position to advance his individual interest as distinguished from that of the corporation. Applying these principles to this case, we find nothing which would warrant us in saying under all the facts before us that there was anything in the conduct of Mr. Humes, as a director of The Bird Coal & Iron Company, which so connected his position as a director with the agreement under which he received the money referred to above from Harned, Jacobs & Co., that the other stockholders of the said corporation would have a right to share in the same. “ It was shown in evidence that, during the time Mr. Humes was a director, the royalty to be paid by the lessee was reduced to twelve cents a ton, by reason of the depression existing in the coal trade, and it was sought to be shown by certain letters written by Mr. Humes to the president of the company that he induced and advised the officers of the company to make this reduction, and, it was claimed, that in concealing from the company at that time that he was receiving a ‘ bonus ’ from the lessee, he acted in bad faith and rendered himself liable for the amount so received. The letters offered in evidence seemed to be in reply to others from the president of the company to him, which we have not seen, but we do not gather from these letters that Mr. Humes induced the officers of the company to make this reduction ; he seems to have been consulted by them in relation to it, and assented or advised it as better than the alternative of having all royalties cease, but we fail to see anything in this fact to render him liable in this action, if we are correct in ruling that on the other facts in the case he was not liable.” Error assigned was refusal to take off nonsuit. Corporate officers may not buy from or sell to their corporation and retain any profits from such transaction ; for all secret profits derived by them from any dealings in regard to the corporate enterprise they must account to the corporation. These principles are well established by the decisions and have become elementary principles of law: Taylor on Corporations, § 629 ; Ry. v. Poor, 59 Maine, 277; Parker v. Nickerson, 112 Mass. 195; Simons v. Vulcan Oil Mining Co., 61 Pa. 202; Densmore Oil Co. v. Densmore, 64 Pa. 43. It is clear that a director has no right to "sell his influence in the management of the company, or to enter into any agreement by which his official action would be influenced or controlled : Morawetz on Corporations, 2d ed., § 519. The directors of a corporation are trustees for the stockholders and creditors of the corporation, and are so far trustees for the company that they cannot derive directly or indirectly out of their position any profits or other advantage, save with the knowledge and concurrence expressly given of the company : Taylor on Corporations, sec. 630. Appellant had the legal right to make the contract under which he received the bonus of three cents a ton, and the fact that he became a director did not affect his right under the contract. What appellant advised as to the new agreement was not only to his own interest as a stockholder but to the best interest of every stockholder.
157 Pa. 292Fink's Estate (1893)
Appeal, No. 22, July T., 1892, by Adaline Hoon, legatee, from O. C. Cumberland Co., overruling exceptions to auditor’s report, on account of Jacob A. Smith, executor of William Fink, deceased. Exceptions to report of auditor on distribution of decedent’s estate. Before Sadler, P. J. The auditor, A. G. Miller, Esq., reported as follows: “1. Wm. Fink, the testator, died Sept. 12, 1890. “ [2.
157 Pa. 303Gunnison v. Erie Dime Savings & Loan Co. (1893)Verdict and judgment for plaintiffs
Appeal, No. 181, Jan. T., 1893, by-defendant, from judgment of C. P. Erie Co., Sept. T., 1888, No. 249, on verdict for plaintiff, Frank Gunnison, assignee of Hayes & Kepler. Amicable action in assumpsit to determine ownership of fund produced by assignee’s sale of real estate. Before Noyes, P. J., of the 37th judicial district, specially presiding. The facts appear by the opinion of the Supreme Court. Binding instructions for defendant were refused. [7] Error assigned was (7) instructions, quoting them. Where partners intend to bring real estate into the partnership stock, the intention must be manifested by deed, or writing, placed on record, that purchasers and creditors may not be deceived: Hale v. Henrie, 2 Watts, 143; Kramer v. Arthurs, 7 Pa. 165; Lancaster Bank v. Myley, 13 Pa. 544; Ridgeway, Budd & Co.’s Ap., 15 Pa. 177; McCormick’s Ap., 57 Pa. 54; Lefevre’s Ap., 69 Pa. 122; McDermot v. Lawrence, 7 S. & R. 438; Appeal of Second Nat. Bank of Titusville, 83 Pa. 203 ; Geddes’s Ap., 84 Pa. 482; Holt’s Ap., 98 Pa. 258; Shafer’s Ap., 106 Pa. 54; Warriner v. Mitchell, 128 Pa. 161; Kepler v. Erie Dime Savings & Loan Co., 101 Pa. 602. The position occupied by Mr. Kepler was that of trustee for the firm of Hayes & Kepler, the beneficial interest in the land being in said firm, and said land belonged to the partnership, and was personal property, and not liable to a lien for the indebtedness of an individual member of the firm: Erwin’s Ap., 39 Pa. 535 ; Lefevre’s Ap., 69 Pa. 122; McCormick’s Ap., 57 Pa. 54; Lacy v. Hall, 37 Pa. 360. The interest of a partner in land which forms part of the partnership assets is not subject to the lien of a judgment entered against him individually: DuBree v. Albert, 100 Pa. 483. We can see no reason for any different rule where land is held by a firm as partnership property than that which prevails in other cases, in which it is held that a judgment creditor is not within the protection of the recording acts : Reed’s Ap., 18 Pa. 495; Moyer v. Schick, 3 Pa. 248; Sill v. Swackhammer, 103 Pa. 7. Nor can we conceive of any equitable principle by which the partnership, the unquestionable real owner of this land, should be postponed to a judgment creditor of one partner, merely because the deed from that partner was not recorded at the time of the entry of judgment. In the case of Erwin’s Ap., 89 Pa. 585, cited by appellee, Ditmars, the judgment creditor of Imhoff, had no standing to claim the money for distribution without first showing that the land, which had been conveyed to Jacob Myers, the other partner, was the joint property of Imhoff and Myers. He claimed to have a lien on the interest of Imhoff in the land, notwithstanding the title thereto was in Myers, the other partner. There was no question of notice to strangers or creditors raised as in this case. It is not the number of grantees in the deed upon record that is to determine the question, but it is the notice upon the record, not who holds the title, but that it has been changed by consent of the partners from real estate, which it is actually, to personal estate, constructively, for the purposes of the partnership. It is notice of this change that is material: Lancaster Bank v. Myley, 13 Pa. 544.
157 Pa. 312Lebbering v. Struthers, Wells & Co. (1893)Defendants appealed
Appeal, No. 53, Jan. T., 1893, by defendants, from judgment of C. P. Warren Co., Sept. T., 1891, No. 50, on verdict for plaintiff, August Lebbering. Trespass for personal injuries. Before Noyes, P. J. Plaintiff’s statement averred that defendant’s negligence, was “in employing unskilled, unfit, incompetent and inexperienced servants.” Plea, not guilty. At the trial, it appeared that, on March 24, 1891, plaintiff, while working at a bull or hydraulic riveter in defendant’s boiler works, received serious personal injuries. Plaintiff’s evidence tended to show that he was a common laborer, and was directed by defendants’ foreman to work on tbe machine without having been given any instructions as to its use. After he bad been working at the machine for about four days, another laborer named Pedlow was also placed at work at tbe machine without having been instructed as to its use. On the following morning, through the lack of skill and proper care of Pedlow in managing the levers, plaintiff was injured. There was evidence to the effect that tlie machine was a dangerous one, and that it was improper to intrust its operation to any one not instructed as to its use. Tlie court charged in part as follows : “ [It is claimed that the defendants are chargeable with negligence in assigning Pedlow to the operation of tbe riveting machine. This was done, not by any member of the firm in person, but by Mr. Hammond, the foreman. Assuming that there was negligence in selecting Pedlow for this work, (but I do not mean to say that was the case,) which, if you reach it, will be a question of fact for you, under all the evidence, and governed by certain principles which I shall hereafter explain — was this • act of Hammond done in his capacity of foreman, or was it one of the master’s duties, intrusted to him by his employers?] [1] “ Upon this point the defendants ask us to instruct you in the eighth and tenth propositions, submitted as follows : “ [u8. That if the defendants, by themselves or their foreman, employed competent and reasonably careful men in their boiler shop, and employed a competent foreman, and placed him in charge of the boiler shop, they had discharged every duty they owed to the plaintiff, resulting from the negligence of such foreman, or from his mistake of judgment in assigning one of the employees to different work than that to which he had been accustomed.’ Answer: This is a correct statement of the law in general; but its application must be limited to cases where the work to which the workman is assigned is of the same general nature as that in which he was formerly employed. But where the work, under the charge of the foreman, consists of various operations, each requiring a special sort of skill and fitness in the workman, and the foreman is intrusted by the master with the duty of hiring and discharging the workmen, as well as assigning them their duties; his act in taking a workman from one sort of work and setting him at another requiring different and special qualifications, would be in effect a new employment, and in so doing he would be regarded as acting for the master; for example, if the foreman of a carpenter shop takes a carpenter from planing boards, and sets him to boring auger holes, he acts merely as foreman and fellow employee with the carpenters. The master is not responsible for any error of judgment or neglect in selecting the right men, but if the superintendent of a railroad, hiring and discharging all the men employed upon it, takes an employee ■ from the gravel train, unskilled in machinery, and puts him to running a locomotive, he acts as vice principal; it is in effect, a new employment. These are extreme cases, but they illustrate the principle which you must apply in the present case.] [2] “ 10. That in the assignment of Pedlow to the work of managing the riveter, and the assignment of plaintiff as assistant, Hammond was not acting as vice principal, charged with the duties of the defendants, but was a co-employee with the plaintiff.’ Answer: This point is refused. Whether Hammond was acting as vice principal or as co-employee, depends upon how you find the facts in the case. If the machine was of such a character that it required no special skill or experience to operate it with ordinary safety, and it might be so operated by the ordinary men employed in the boiler shop as Pedlow and the plaintiff were employed, then the point would be correct. But if it did require special education and skill, so that its safe operation constituted a special employment, different from the ordinary work of the boiler shop, then it would not be. In the one case the foreman would act within the ordinary range of his duty as foreman, assigning men of equal grade to their respective stations within the grade. But in the other, he would be acting for the principal — practically discharging a workman from one employment, and re-employing him in another. “With respect to this point, — the first question of fact — - a very important question for you to consider — is as to the character of this machine with reference to its mode of operation. If it was so complicated in its construction and operation that it required considerable special skill, that no ordinary man employed in the boiler shop, and having acquaintance with the business of making boilers and its various branches, could, with a small amount of instruction, learn bow to operate it; but it required special education, although, perhaps, not so great as would be necessary to run a locomotive ; then the assignment of the laborer to that machine from some other employment would be such an act that the master would be bound to know that the man so assigned was competent,] [8] but if the machine, though powerful, was simple in construction, easily operated, so that any man who had been around the boiler shop and done the work there, and used other machines, was put in charge of it, and receiving instructions as to how it was operated, what levers to pull and how to pull them, how to arrange the boiler, -etc., could operate it with a reasonable degree of safety, then it would not fall within any special class, and the act in assigning such workmen from some other machine to that machine would be within the ordinary duty of the foreman, and any neglect of his would not be negligence of the employer, and would not be a basis for liability in such a case as the present. . . . “ [Now, from all the evidence, you will determine whether the machine is of such a character that a man had to have special education in order to run it with safety; ] [4J whether one or two hours’ instruction in pulling the lever and handling the valve by which the work is raised and lowered would be sufficient, so that, if he had ordinary intelligence and gave ordinary care to his work, he could operate it with an ordinary degree of safety; if he could, then there was no negligence in assigning Pedlow to this work. “ [If you should find that the machine was of such a character, and its operation attended with such difficulty and danger, that it did not belong to the ordinary work of the shop, but constituted a special branch requiring special skill, then you must inquire further whether there was in fact, any negligence on the part of Hammond in selecting Pedlow. If Pedlow was known to have no previous knowledge or experience in operating the machine, it would be negligence to intrust its operation to him, without seeing that he was first properly instructed and educated, so that he could with due care operate it safely. It is a part of the duty of the master to instruct inexperienced workmen in the use of machines or appliances which he knows they are not acquainted with, and to warn them against dangers in their use, not apparent to the experienced observer, if he required the workmen to operate them; and this not only for the protection of the workmen assigned to the machine, but for the safety of all those employed with them, and who might be injured through their ignorance. His duty is to put the employee in possession of the knowledge required to enable him, with due and ordinary care, and using ordinary intelligence, to operate the machine with reasonable safety. How was this in the present case? Was the machine difficult to operate, and especially dangerous, or was it simple, though powerful, easy to understand, and requiring only slight knowledge and ordinary care ? Were the instructions given by Hammond to Pedlow such as should have enabled him, if he had attended to them and used ordinary care, to have operated the machine with ordinary safety ?] [5]. . . . “ [If he was injured through Pedlow’s ignoranee of the work to which he was intrusted, if Pedlow was not instructed how to use it, didn’t know how, and Hammond failed to instruct him when he was inexperienced and ignorant, and he put him on the machine to do this work, ignorant of how to do it, and that was the cause of the injury, then the plaintiff can recover, unless he was himself at fault in some way.] [6] “ [There is another branch of the case to which I will now call attention. If there was no negligence in assigning Pedlow to the operation of the machine, or in instructing him as to its use, the plaintiff claims that there was negligence in continuing him there after notice that he was operating the machine improperly. It is conceded that such notice was given to Hammond, the foreman, by Dyson. Such notice, in my opinion, was notice to the employer.] [7] But, inasmuch as there is no evidence that Pedlow was in general either incompetent or habitually careless, and the notice was that he was not pulling the lever right — not operating this particular machine in a proper manner — it does not follow that it was negligence to retain him in the employment. [If the improper pulling of the lever was due to Pedlow’s ignorance, it became the duty of the defendants or their representative, on knowledge of this, to see that he had the requisite instructions to enable him to correct it. But his general character for carefulness justified Hammond in believing that he would exercise care after a suitable caution, and if he gave such caution, and had reason to believe that Pedlow had attended to his orders, then the defendants would not be responsible, even although Pedlow caused the injury to the plaintiff by a subsequent act of carelessness. But if he knew that, notwithstanding his cautions, Pedlow continued to run it in a dangerous manner, or if he ought to have known it by ordinary attention, then they would be liable if Pedlow was continued in the employment and the plaintiff was injured thereby without his fault.] [8] “ In respect to this, the evidence tends to show, by Dyson and others, that the machine was run too fast by Pedlow; the lever was pulled out too suddenly; that it continued to be so on Tuesday, as well as on Monday; that he spoke to Hammond about it; and that Hammond, who says he had some other business at the moment, returned within a short time. Hammond testifies, and there is no contradiction of it, that he went to Pedlow and cautioned him and gave him some .further instructions, which' you will remember; he said he observed the machine afterwards, and also passed it occasionally, and Pedlow was operating it all right. You will have to determine how this was. “ [ If, when it was called to Hammond’s attention, he immediately went to Pedlow, who he had reason to believe was ordinarily careful and ordinarily skillful, gave him what information he needed to enable him to pull the lever properly and warned him of any danger, or cautioned him against his carelessness, if that is what it was, and he had no reason after that to suppose it had been repeated, but that he was operating it rightly, then it would not be negligence. But if he neglected that, it would be.] ” [9] .... Plaintiff’s points were among others as follows : “ 4. The foreman of the shop in which the plaintiff was engaged in working, having authority to hire and discharge men in that department, from time to time, had such delegated authority over that department as rendered the foreman vice principal, and notice to said foreman was notice to the principal, and if the jury find from the evidence, notice was given to the foreman that Pedlow, in charge of the riveting machine, was running the machine in a careless or unskillful and dangerous manner, and after such notice he was permitted to continue running the machine in the same careless, unskillful manner, whereby the plaintiff was injured, this would be notice to the defendants, and they would be liable to plaintiff in damages for injury thus sustained. Answer: To this point we answer that the foreman of the shop, who had authority to hire and discharge the men employed, there, is to be considered as standing in the place of the employer in respect to that duty, which is one which belongs to the employer. Notice to the foreman that Pedlow was an unskillful and careless workman, whose employment would render the other workmen unsafe while discharging their duties, would be notice to the employer, and a continuance of Pedlow in the employment after such notice would render the principal liable for any injury resulting from the negligence or unskillfulness of Pedlow thereafter. But there is no evidence that Pedlow was either unskillful or careless in respect to bis general character, nor that any such character was known to the employers or their foreman. Under these circumstances, knowledge that Pedlow was acting unskillfully or carelessly in a single instance, or, for example, in operating this particular machine, would not necessarily make it the duty of the employer to discharge him, nor to remove him from the machine. If the manner in which he was operating the machine showed a want of competent knowledge of the proper way to run it, it became the master’s duty, on notice of such want, to give the necessary instructions and so put him in such position that he could, if he pleased, operate it properly. If he was in this instance careless, but was a man of ordinary prudence and care in other matters, the master had a right to expect that a caution or reprimand would cause him to-be careful in this one. If after such caution the master or his foreman had no reason to suppose that the acts of carelessness were repeated he would not be bound to remove him from his place ; nor would he be liable for injuries resulting from his negligence. But he would be bound of course to exercise ordinary supervision over it, and to inform himself, not shut his eyes willfully to what was going on.” [11] “ 5. If the jury find from the evidence that the riveting machine was a new invention, and in use in the shops of the defendants a short time prior to the time when the plaintiff was injured, having a very high pressure, to wit, fifty tons pressure, it would be incumbent on the defendants to see that a competent person was placed in charge of the same; and if the young man Pedlow placed in charge of the machine was inexperienced, and not properly instructed, the plaintiff being injured thereby, he is entitled to recover. Answer: If the machine was one which might reasonably be expected to cause accidents to those about it when operated by persons inexperienced or not instructed in its proper use, and Pedlow was inexperienced and without knowledge of the proper way to use the machine, and was placed in charge of it by the defendants’ foreman without being properly instructed in the use of the machine, so that with ordinary care and attention he could operate it with the ordinary degree of safety, the defendants would be responsible for an injury to the plaintiff resulting from Pedlow’s want of instructions, provided that the plaintiff himself is free from negligence which contributed to the injury.” [12] Defendants’ points were among others as follows : “ 2. It was only while discharging duties which the employer (the defendant company) was bound to discharge toward its employee (the plaintiff), that Hammond can be regarded as a vice principal. The only such duty of the principal, which, from the evidence, Hammond appears to have discharged was that of employing and discharging hands, and the moment this duty was performed by him, all his functions as vice principal ceased, and all his other acts were but as foreman or co-laborer with plaintiff in the works. Answer: The first clause affirmed. The second refused. The evidence shows that Hammond instructed those who were set to operate the machine which caused the accident. In giving such instructions to the inexperienced men he acted also as vice-principal.” [18] “ 5. The pleadings in this case raise no issue as to the failure of defendants to warn the young and inexperienced employee as to the danger incident to machinery upon or about which he was working. Answer: No such distinct issue is raised by the pleadings, but the question is indirectly involved in this case.” [14] “ 6. This duty of an employer to warn the young and inexperienced employee of the dangers incident to the machinery, is a duty the employer owes to the employee so warned for his own safety. There is no duty upon the employer or employers to warn other employees of the dangers incident to machinery for the safety of an employee; (such as plaintiff who does not in his statement complain that he was young and inexperienced, and not warned of the dangers incident to the use of the machinery.)” Refused. [15] “ 7. So far as plaintiff is concerned he cannot complain that one of his co-employees being young and inexperienced was not so warned of the dangers incident to the use of machinery. It is enough if defendants employed fit and reasonably competent fellow laborers to work with him. The defendants’ failure, if there was such failure, to warn them or any of them, of the dangers incident to the use of the machinery, was not a neglect of duty of which plaintiff could complain.” Refused. [16] 8 and 10. See charge of court above, page 314. “ 11. That under the pleadings and evidence the plaintiff is not entitled to a verdict.” Refused. [17] Verdict and judgment for plaintiff for $2,105. Errors assigned were instructions in brackets, quoting them. Ross v. Walker, 139 Pa. 42; Cullen v. Norton, 126 N. Y. 1; Crispin v. Babbitt, 81 N. Y. 516 ; Malone v. Hathaway, 64 N. Y. 5 ; R. R. v. Bell, 112 Pa. 400 ; Kinney v. Corbin, 132 Pa. 341; Rummel v. Dilworth, 131 Pa. 509; Kehler v. Schwenk, 151 Pa. 505; Faber v. Mfg. Co., 126 Pa. 387 ; Duffy v. Oliver, 131 Pa. 203 ; Sherman & Redfield on Negligence, 110; Wright v. N. Y. Central R. R., 25 N. Y. 562; Reese v. Clark, 146 Pa. 465; Tarrant v. Webb, 18 C. B. 797. Ross v. Walker, 139 Pa. 48; Atkins v. Thread, 142 Mass. 431; O’Connor v. Adams, 120 Mass. 427; Wagner v. Jayne Chemical Co., 147 Pa. 475; Rummel v. Dilworth, 131 Pa. 509; Kehler v. Schwenk, 151 Pa. 505 ; R. R. v. Fort, 17 Wal. 553; Brennan v. Gordon, 118 N. Y. 489; Crissey v. Ry., 75 Pa. 83; Reynolds v. B. & M. R. R., 24 Atl. R. 184; Foster v. Pusey, 14 Atl. R. 545; Union Mfg. Co. v. Morrissey, 22 Am. L. Reg. 574; Wust v. Erie City Iron Works, 24 Atl. R. 291.
157 Pa. 324Hague v. Wheeler (1893)
Appeal, No. 107, Jan. T., 1893, by defendants, N. P. Wheeler, L. R. Freeman et al., from decree of G. P. Warren Co., Dec. T., 1892, No. 33, awarding injunction in favor of plaintiffs, W. W. Hague and Citizens Gas Co. Bill in equity for injunction to restrain waste of gas on adjoining premises. Before Noyes, P. J. The bill averred that plaintiffs were lessees of about twenty-two hundred acres of land for oil and gas purposes, and that defendants were neighboring landowners. Plaintiffs further averred as follows: “ 3. By reason of the geological formation in that locality, the gas-bearing sand-rock underlying a large part of tracts Nos. 5202, 5203, 5207 and 5208, including those parts of which the plaintiffs and defendants are lessees or owners of the gas and oil respectively, and from which the plaintiffs are producing gas in paying quantities, is subject to rapid drainage by the drilling of wells on any part thereof. “ 4. The plaintiff, Hague, began drilling wells on his leasehold in the year 1888, and the plaintiff, Citizens Gas Co., in the year 1887. The defendants, lessees, did not drill any wells on the land in which they own the oil and gas or in the said basin until the year 1890, when they sunk one well on that part of tract number 5207 situate in Limestone township, Warren county, about fifty' rods from the leasehold of plaintiff the Citizens Gas Go., and about eighty or ninety rods from the leasehold of the plaintiff Hague, in the summer of 1890, and obtained gas in considerable quantities. “ 5. The flow of gas from the said well of defendants is so great that it will, if allowed to go to waste, seriously and irreparably injure the wells of the plaintiffs by drainage from the lands adjoining and near to said defendants’ wells. The defendants have not marketed the gas from said well, nor made any u^e thereof whatever, but in 1891 said well was opened and the gas permitted to escape in great quantities, and it having caught fire, the plaintiff Hague and Geo. H. Ahrens caused the same to be extinguished and shut in for the protection of their “own lands, as well as to the benefit of the defendants, at the expense of about $200. The defendants at one time offered to shut in said well and give plaintiffs control thereof for a consideration of $1,650 per annum, which plaintiffs, being greatly injured by the waste aud drainage of said gas, agreed to pay; but the defendants failed to perform their agreement, and in September, 1892, sent men to open said well and allow the gas to escape in great quantities, and declared their intention to open said well unless plaintiffs would pay them an extortionate and exorbitant price therefor. Said defendants are still threatening to open said well, and if done the drainage of gas from the territory of plaintiffs will be such as to cause them great and irreparable damage. And your orators are informed and believe that on the 25th day of October, 1892, the said defendants again opened said well and intend to keep the same open. “ 6. The said acts and threats of the defendants, your orators aver, are contrary to law and equity, and injurious to them and to the public.” The bill prayed for an injunction (1) to prevent the opening of defendants’ well, so as to prevent the gas from going to waste, and (2) general relief. The court granted a preliminary injunction, and subsequently refused to take it off, in the following opinion by Noyes, P. J.: “ The plaintiffs, W. W. Hague and the Citizens Gas Company, are lessees for oil and gas purposes of certain lands lying in this and the adjoining county of Forest; the defendants, Watson, Freeman and Syms, are lessees, or owners, of the oil and gas in certain other lands lying near those in which the plaintiffs are interested ; since 1887 and 1888 respectivety the plaintiffs have been producing and marketing natural gas upon their respective premises in paying quantities; in 1890 the defendants caused a well to be drilled upon their premises which produced gas in large quantity, but they never have used or marketed the same; in 1891 the derrick at this well was destroyed by fire, and the gas escaped into the air; the defendants refusing or neglecting to shut it in, the plaintiffs did so at their own expense, and the well remained in this condition until shortly before the present application. The allegations of the bill that the defendants agreed to shut in the well and put it under the control of the plaintiffs in consideration of |1,650 per annum, and that thej1" threatened to keep the well open unless paid an exhorbitant price, are expressly denied in the affidavit of Mr. Freeman, and we lay them out of view. At the time the bill was drawn, the defendants had given directions to have the well opened, and at the time of the hearing it was conceded that it was, in fact, open and on fire, the gas thereby going to waste. “ The only answer to the plaintiffs’ allegations thus far made is the affidavit of Mr. Freeman, before referred to. It denies that the injury to the plaintiffs will be serious, or irreparable, but gives no facts bearing upon the matter, and states the affiant’s belief that the plaintiff Hague has no interest in the leases set out in the bill. These averments are too indefinite to defeat the right of the plaintiff to an injunction, especially in view of the conceded fact that the granting of such an order will work no pecuniary loss to the defendants, while its refusal will inflict great loss upon the plaintiffs, if in fact they are entitled to such relief. The positive statement in the affidavit that the acts of the defendants now complained of had been invited by the Citizens Gras Company through its president might defeat this -application so far as that company is concerned, but as it cannot affect the plaintiff Hague, it is not necessary to consider it at this time. “I am obliged therefore to consider this application upon the merits of the case, leaving out of view any contractual relations between the parties, and regarding only their respective rights and duties as adjacent owners of oil and gas. For the purposes of this case they may be treated as owners of the land itself. “ The mere fact that the defendants by operations upon their land are taking gas from the earth, and thereby diminishing the quantity of gas which would otherwise come to the plaintiffs’ wells furnishes no ground for complaint, or equitable interference, and this is freely conceded. .If the plaintiffs have any right, it rests upon the fact that the defendants are not taking gas in the ordinary course of mining, or for purposes beneficial to themselves, or others, but are permitting it to go to waste. Malice is not expressly alleged in the bill, but the facts disclose no possible motive for so doing except a purpose of diminishing the amount which the plaintiffs will get through their wells, though the natural inference would be that the defendants are not actuated by feelings of malevolence towards the plaintiffs, but are seeking, through their power to injure, to secure a better bargain. “ The questions thus presented for my determination on this preliminary application are of great importance and delicacy, and, so far as I am advised, have never been determined in any court. I regret that I am obliged to decide without the aid of adequate and thorough argument, such as the able counsel representing the respective parties could have made, had they not been prevented by the emergency of their case. I have, however, examined every authority bearing upon the case which I have been able to find, and will state the conclusions to which they lead my mind. “ If the defendants have a right to take gas from their well in unlimited quantities for their own profit, how far is their right affected by the fact, if it be a fact, that their motive in taking it is not profit, but injury to another — malice, in the le"gal sense ? “ There are many dicta and some authorities which seem to declare that an act done in the exercise of a lawful right, and without negligence, may be unlawful if done with express malice. Prominent among these is the carefully considered case of Wheatley v. Baugh, 25 Pa. 582, in which the rule of the civil law is cited with approval by C. J. Lewis, to the following effect: ‘ He who, in making a new work upon his own estate, uses his right without trespassing either against any law, custom, title or possession which may subject him to any service towards his neighbors, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that change with a view to hurt others without any advantage to himself.’ The same doctrine is approved in Haldeman v. Bruckhart, 45 Pa. 514, in Penn. Coal Co. v. Sanderson, 113 Pa. 148, and other cases. The suggestion that one may not do maliciously what he might lawfully do if his motives were good is found in many English cases, among. which are Acton v. Blundell, 12 M. & W. 338; and Chasemore v. Richards, 7 House of Lords Cases, 387. It has been more or less clearly made in the following, among other cases, in other states of this Union: Greenleaf v. Francis, 18 Pick. 117; Roath v. Driscoll, 20 Conn. 533; Carson v. Western R. R. Co., 8 Gray, 423; Howland v. Vincent, 10 Mete. 371; Brown v. Illius, 25 Conn. 583; Gallagher v. Dodge, 48 Conn. 389. I have not been able to find any case, however, in which a party has been actually held to liability on this ground alone. “ On the other hand there are many cases in which malice as a criterion of liability for civil damages is distinctly repudiated, and among these our own eases of Covanhovan v. Hart, 21 Pa. 495 ; Jenkins v. Fowler, 24 Pa. 308; Fowler v. Jenkins, 28 Pa. 176; and Glendon Iron Co. v. Uhler, 75 Pa. 467. ‘ Malicious motives,’ says Black, J., in Jenkins v. Fowler, ‘make a bad act worse; but they cannot make that wrong which in its own essence is lawful. ... As long as a man keeps himself within the law by doing no act which violates it, we must leave his motives to him who searches the heart.’ To the same effect are Mahon v. Brown, 13 Wend. 261; Clinton v. Myers, 46 N. Y. 511; Phelps v. Nowlen, 72 N. Y. 39; South Royalton Bank v. Suffolk Bank, 27 Vt. 505 ; Chatfield v. Wilson, 28 Vt. 49. “ Without lengthening out this opinion by pointing out the distinctions between these cases, it is enough to say that my mind inclines strongly to the conclusion that the presence or absence of malice cannot of itself determine the liability of an owner of land for an act done upon it. If the act is' lawful when done with innocent intentions, it is no less so because the motives were bad. If these defendants might lawfully drill a hole into the gas bearing rock and suffer the valuable gas to escape because they foolishly, but honestly, believed that the use of natural gas is an injury to mankind, they may do so for the purpose of keeping their neighbor from getting it, even if the motive is purely malevolent. Such in my opinion is the weight of the authorities, as well as the reason of the case. “But this assumes that the act done with malicious intent invades no legal right of another. The eases are all of this character, or were so regarded by the courts deciding them. On the other hand the cases which seem to announce a different doctrine deal with rights which are not absolute and exclusive, but qualified and correlative. An example of the former is Fowler v. Jenkins, supra, in which the action was brought for maliciously tearing down a fence which neither the plaintiff nor the defendant had a right to maintain; of the latter is Grreenleaf v. Francis, in which the action was brought for digging a well so near the plaintiff’s well as to divert the water. The instructions of the trial court to the jury, which were indorsed by the appellate court, were: ‘ That if the defendant had a legal right to dig a well upon any part of his own land for the purpose of obtaining water for his own use; that if he dug his own well where he did for that purpose, he was justified in so doing, although the effect might be to diminish the water in the plaintiff’s well; that if he dug where he did for the purpose of injuring the plaintiff, and not for the purpose of obtaining water for his own use, he was liable in this action ; but if he thus dug his well for the purpose of accommodating himself with water he was ■ not liable for so doing, even if he at the same time entertained feelings of hostility towards the plaintiff and a desire to injure her, and these feelings were thereby gratified.’ “ Malice implies knowledge. If the defendant in the case above cited dug his well maliciously, he knew beforehand where to dig to tap the same subterranean stream from which the plaintiff’s well was supplied. His right in such waters was qualified by the right of the plaintiff in the same flow of water. He could use it without stint, even if it exhausted the plaintiff’s well, but he could not wantonly destroy it, nor take it not for use, but merely to injure his neighbor. Malice in such a case is not the criterion of liability, but it is an index which clearly shows an overstepping of the line, otherwise difficult to trace, between the respective rights of the parties. The true place of malice in such inquiries is clearly defined by the court in Chatfield v. Wilson, above cited, in the following paragraph from the opinion of the court: ‘ There are many cases in the books relating to the relative use of surface streams, where the case has turned upon the question whether the use was reasonable, and for the party’s own convenience or benefit, or wanton and malicious and done to prejudice the rights of another. In such cases there are correlative rights to the use of the water, and the boundary of the right is a reasonable use of it.’ “ Respecting rights in water I find the following from the pen of Judge Cooley in the Southern Law Review (reprinted Alb. L. J., vol. 14, p. 68), which though not delivered ex cathedra, is none the less dispassionate and sensible: ‘ There seems to be some difficulty in laying down a rule for these cases that will be quite satisfactory in principle and in its workings. That a man may lawfully make an excavation on his premises for the sole purpose of drawing away the water from his neighbor’s well and rendering it useless, seems to be, and is, in fact, a monstrous doctrine. On the other hand it cannot be said, consistent with the authorities, or perhaps with reason, that adjoining proprietors have rights in the water percolating the soil corresponding to those they may have in a running stream which crosses their several estates. Such a rule would raise questions of reasonable use, and create difficulties both of evidence and of application that would make the right to such waters more troublesome than valuable. The courts have doubtless been right in declaring that one proprietor cannot insist on another keeping his estate as a filter for the use of the former, nor be heard to complain if the use by his neighbor of his own estate draws off the secret particles of water which otherwise he might have gathered. These waters belong to no one until they are collected, and they may be appropriated by the one who collects and puts them to use. But though neither proprietor has such a right in or control over rhe water as will enable him to complain of his neighbor’s appropriation, does not each owe to the other certain duties of good neighborhood, among which is the duty to abstain from purposely withdrawing the water that may be useful to both, when a use of it is not intended ? Conceding that he may collect it for use, does this entitle him to do so not for use, but of malice ? If he sinks a well to supply his house, or water his stock, it must be admitted that no question can be raised whether this is, or is not a reasonable appropriation of the water; but if he digs a hole to injure his neighbor, it is not perceived that the two cases are necessarily to be governed by the same rule. What is a man’s right to Avater percolating through the soil ? The just answer seems to be this: It is a right to gather and appropriate it to his lawful uses. When he does this he is exercising- his right, and his motive is not open to inquiry. But when he collects it, not for use, but to injure his neighbor, he exceeds his right, and there is that conjunction of wrong and injury which constitutes a tort and will support an action.’ “ In most of the cases malice and negligence are coupled together, and, in respect to the rights of the party injured, it would seem that liability would result from one in any case where it would from the other. No matter how negligently an act may be done, it creates no liability unless some legal right of another is injuriously affected; the same is true of an act done maliciously, and the converse holds in both cases. And where the right of one to do an act is limited by any qualification, it must be held to stop short of a right to do it from pure malice. “ What, then, are the rights of adjoining owners of oil and gas ? Are they absolute and independent, or qualified and correlative. “ These valuable products are obtainable only in connection with tire ownership of land and for many purposes are to be regarded as minerals, and as constituting an integral portion of the land itself. Funk v. Haldeman, 58 Pa. 229; Stoughton’s Appeal, 88 Pa. 198. But they are not, like coal and iron ore, fixed in their place in the rocks, so that the owner may know his own, protract his lines downwards to mark his boundaries, and take them when he pleases. As water percolates by untraceable rills through the gravel, so these ‘ minerals ferae naturae,’ as they have been aptly called in a recent case, permeate the porous rocks deep in the bowels of the earth, and rush to the surface through any opening made through the impervious cap by which the basin which contains them is sealed. No landowner gets through his wells oil or gas exclusively from his own land; that which saturates his rocks may be lawfully taken by his neighbor through wells on his land, tapping the common reservoir. From the very nature of the case the right of each owner is qualified. It is common to all whose land overlies the basin, and each must of necessity exercise his right with some regard to the rights of others. “ Notwithstanding the fugitive nature of oil and gas, I think it will not be doubted that if a party by negligent operations-upon adjacent land injures the flow of oil wells, as, for example, by neglecting to case off the fresh water, he would be liable in damages to the well owners so injured; such a liability as to wells of water was established in Collins v. The Chartiers Gas Co., 181 Pa. 143, and the right to gas or oil would seem to be of as high a character as the right to water. If the owner of gas wells, or land, has such au interest in the gas that he can recover for an injury done by negligence, he surely may when it is done of deliberate purpose. “ The same considerations of natural justice which limit the ownership of running water to the usufruct, and of percolating waters to their use in a broader sense, must of necessity impose qualifications upon the enjoyment of all rights of property, which, from the nature of the things possessed, many must enjoy together. The owners cannot be permitted to carry on their operations in lawless irresponsibility, but must submit to such limitations as are inevitable to enable each to get his own. The fact that these limitations are not found clearly defined in the books is no proof that they do not exist. The common law is a growing tree; its principles must be continually adapted to new facts, and the changing conditions of modern life. Only the legislature can grub it up, but the courts are charged with the duty of pruning its branches, and sometimes grafting a new scion on the old stock. “ I concede that the defendants may lawfully take as much gas as they can get by wells drilled upon their land, and apply it to any useful purpose, though with an avowed intention of destroying the plaintiffs’ wells by so doing, and a malicious pleasure in the act. But their well in its present condition is not a means of obtaining gas for any purpose. It is a mere conduit by which the gas imprisoned in the rocks is enabled to escape into the atmosphere. All who have proved their ability to obtain gas from that reservoir are interested in common in its preservation, and the reckless waste of it is an injury to all. Whatever other qualifications may attach to the landowner’s right, it seems to me clear that it must of necessity be limited to legitimate operations for profit' — -not malice — and by the requirement of ordinary care for the protection of others interested in common with himself. “I am aware that the conditions attending the production and sale of natural gas are peculiar. There may be cases where the wasting of gas seems to be the only alternative to permitting another to take it without compensation. IIow far a court of equity would be influenced by such considerations, it is not necessary now to decide, for no such facts appear in this case at present. Upon the whole case I am of opinion that the injunction should be continued. “And now, Nov. 5, 1892, on hearing and due consideration, the plaintiffs having filed a bond in the sum of $2,000, with sureties approved by the court, the same is ordered to be substituted for the bond given on issuing the injunction, and the injunction heretofore granted is continued until further order.” Error assigned was decree, quoting it. Waste is defined to be the destruction or improper deterioration or material alteration of things forming an essential part of the inheritance done or suffered by a person rightfully in possession by virtue of a temporary or partial estate, as, for example, a tenant for life or for years: Grubb’s Ap., 90 Pa. 228. Plaintiffs’ right to the gas under their leasehold is to so much gas only as may be obtained through the well or wells or opening upon the land owned by them, or embraced within the boundaries of their leasehold: Westmoreland N. Gas Co. v. Dewitt, 130 Pa. 235; Duffield v. Rosenzweig, 144 Pa. 537. The owner is defined to be he who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy or to do with as he pleases, — even to spoil or destroy it, as far as the law permits, unless he is prevented by some agreement or covenant which restrains his right: 2 Bouv. L. Diet. 343 ; Anderson’s Diet. 741; 1 Bl. Com. 138. The owner of the land may maintain an action of trespass for the injury to his close, but there the remedies which the law allows end: Angelí on Water Courses, p. 12; Race v. Ward, 82 E. C. L. 700 ; Haupt’s Ap., 125 Pa. 224; Mayor v. Commissioners, 7 Pa. 348; Phila. v. Collins, 68 Pa. 116; Kitchen v. Smith, 101 Pa. 452. The established principle of the common law, that a man’s ownership of land covers all the land inclosed within vertical lines drawn from the boundaries of his property to the centre of the earth, makes the owner of the land the owner of the oil and gas which is contained therein, and of water that percolates therein. Natural gas, like petroleum oil, coal and iron ore, is a mineral, and belongs to and is part of the realty: Funk v. Haldeman, 53 Pa. 229; Stoughton’s Ap., 88 Pa. 198; State v. Indiana & Ohio Oil, Gas & Mining Co., 120 Ind. 575. The rights of the owner of the land to the water which percolates, or filters through the soil are not qualified, as they are in streams which flow upon the surface of the earth, and well defined water courses which flow under the earth, but are absolute : Acton v. Blundell, 12 M. W. 824; Chasemore v. Richards, 2 H. & N. 168; Greenleaf v. Francis, 18 Pick. 117; Roath v. Driscoll, 20 Conn. 533; Wilson v. New Bedford, 108 Mass. 261; Wheatley v. Baugh, 25 Pa. 528; Chatfield v. Wilson, 28 Vt. 49; Frazier v. Brown, 12 Am. L. Reg. O. S. 294; Chase v. Silverstone, 62 Me. 175; Delhi v. Youmans, 50 Barb. 316 ; Ellis v. Duncan, 21 Barb. 230; Angell on Water Courses, 7th ed., 174; Brown v. Illius, 25 Conn. 583. The same rule applies with still greater force to natural gas, which belongs to and exists in the earth. If the analogy between natural gas and percolating water holds good, then the conclusions of the learned court below in holding the rights of the owners in natural gas to be qualified and correlative, are against the uniform decisions of the courts in England and this country, with the exception of New Hampshire : Westmoreland Gas Co. v. Dewitt, 130 Pa. 235. The presence or absence of malice cannot of itself determine the liability of an owner of land for an act done upon it: Covanhovan v. Hart, 21 Pa. 495 ; Jenkins v. Fowler, 24 Pa. 308; Fowler v. Jenkins, 28 Pa. 176; Glendon Iron Co. v. Uhler, 75 Pa. 467; Mahon v. Brown, 13 Wend. 261; Clinton v. Myers, 46 N. Y. 511; Phelps v. Nowlan, 72 N. Y. 39 ; South Royalton Bank v. Suffolk Bank, 27 Vt. 505 ; Chatfield v. Wilson, 28 Vt. 49. The conclusions of the learned judge in granting the injunction rest solely upon the ground that defendants are not taking the gas for any useful purpose. In this, again, the court is not supported by the weight of authority or by any adjudicated case : Mahon v. Brown, 18 Wend. 261: Phelps v. Nowlen, 72 N. Y. 39; Auburn Plank Road Co. v. Douglas, 9 N. Y. 444; Chatfield v. Wilson, 28 Vt. 49; Frazier v. Brown, 12 Ohio St. 294; Haldeman v. Bruckhart, 45 Pa. 514; Pickard v. Collins, 23 Barb. 444; Westmoreland Gas Co. v. Dewitt, 130 Pa. 235. There can be no invasion of any legal right of the plaintiffs until they have reduced the gas to their possession: Westmoreland Gas Co. v. Dewitt, 130 Pa. 235. The “ fugitive and wandering character ” of gas, as defined by Agnew, C. J., in Brown v. Vandergrift, 80 Pa. 145, does not in the least militate against the argument that the right of the owner of the soil to it is absolute so long as it remains in his land and is subject to his control. Defendants stand upon what they say is a right, cold and naked, to drill a well upon their own land, in close neighborhood to that of plaintiffs, drain the gas from their own land and waste it, and at the same time waste that of plaintiffs, depriving them of the sale of it, and the public of its use, and doing themselves no good whatever by such conduct. This, we say, is a development of human selfishness and malice beyond what the law permits. Where a man uses his own property in the usual manner, in the natural way, and without negligence or malice, and an injury results to his neighbor, for such injury there can be no remedy. But it will be observed that in all these cases the use must be proper, ordinary and natural, and the damage must be unavoidable, that is, resulting solely from the lawful use of one’s own: Collins v. Chartiers Gas Co., 131 Pa. 143; Penna. Coal Co. v. Sanderson, 113 Pa. 126. The opinion of the court below contains an ample discussion of the question and citation of authorities.
157 Pa. 342Consolidated Oil Well Packer Co. v. Jarecki Mfg. Co. (1893)
Appeals, Nos. 836 and 340, Jan. T., 1893, by plaintiff and defendants, from decree of C. P. Warren Co., March T., 1884, No. 49, on bill in equity. Bill in equity for account. Before Noyes, P. J. The case was referred to James O. Parmlee, Esq., as master, who found the following facts: “1.
157 Pa. 349Smalley v. Morris (1893)
Appeal, No 427, Jan. T., 1893, by plaintiff, S. D. Smalley, from judgment of C. P. Warren Co., Sept. T., 1892, No. 16, on verdict for defendant, B. F. Morris. Assumpsit on promissory note. Before Noyes, P. J. At the trial, it appeared that the note in suit, which was for 11,833.33, was the fifth of a series of six negotiable promissory notes given on Oct. 3, 1889, and payable at intervals of six months. The notes were given in part payment for certain oil leases. Defendant alleged that he was induced to purchase the property by fraudulent misrepresentations as to productiveness, etc., made by plaintiff’s agent, W. H. Pickett. To show the latest and best information as to the production of the properties in question, plaintiff offered in evidence statements made by the National Oil Company, Limited, of the royalty production of the properties. No proof was offered as to the correctness of the statements. Objected to as incompetent, irrelevant and hearsay. Objection sustained and exception. [4] Plaintiff’s fifth and sixth points were as follows: “ 5. If the jury believe that Morris, after learning that Pickett had misrepresented the value of the property to him, kept the property for a year or more and then sold it, thus putting it out of his power to place Smalley in statu quo, such conduct amounts to a ratification of his contract of purchase, even were it tainted with fraud, and he, Morris, cannot now be permitted to defend against the notes he gave in payment of the purchase money.” [1] “ 6. It being admitted by Morris that he learned in August, 1890, that Pickett had misrepresented to him the value of the property before purchase, and at least for a year he made no tender back to Smalley of the property, and it being undisputed that in the meantime the property was depreciating in value, such delay was unreasonable, and the defendant cannot now defend against the payment of the note for purchase money in suit. Answer: Refused. The principles stated in these points are applicable in case where one party is seeking to enforce an executory contract, or to rescind it in equity upon the ground of fraud. There is no question of rescission involved in this case. The contract was executed at or about the time it was entered into, and neither party ever offered to rescind, nor are they now in situation to do so. But if the defendant was legally damaged by the false representations made by the plaintiff or his agent, he may show such damages as a defence to the Jiote in suit.” [2] Defendant’s seventh point was as follows : “ 7. The jury ai'e not at liberty to set aside or nullify the note in this case on the ground of fraud in its procurement unless the evidence of such fraud is clear, precise and indubitable. Answer: Refused. Fraud must be proved and cannot be presumed. But there is no attempt to set aside or nullify the note, and the rules of evidence in such cases are not applicable. You will determine the question of fraud upon the weight of the testimony, as you find it, remembering that it must be proved and the burden of proving it rests on the defendant.” [3] The jury returned a sealed verdict as follows : “ Warreifi Pa., Jan. 11, 1893. To the Hon. Coui't: We do find for the defendant, and agree to give to Mr. Monis judgment in the sum of fifteen hundred dollars.” Affidavits of eleven jurors filed averred that they intended to find for plaintiff with credit to defendant of $1500. The court entered judgment generally for defendant on the verdict, and discharged a J'ule for a new trial in the following opinion by Noyes, P. J.: “ The only reason for new trial urged in argument was the fourth, which raises the question whether the affidavits of jurors may be received to impeach, contradict, or set aside their verdict. “ While there are early oases both English and American in which under peculiar circumstances such evidence has been received, it has long been settled in England, and in most of the United States, that reasons of public policy forbid the practice, and the decisions of the Supreme Court of Pennsylvania appear to be uniform to this effect. It was so decided in Cluggage v. Swan, 4 Binney, 150; and announced as a settled rule inHutchinson v. Sandt, 4 Rawle, 234, and White v. White, 5 Rawle, 61. The common pleas eases cited cannot weigh against these authorities, but Conrad v. Broomall, 6 Phila. 237, did not involve the question, and Commonwealth v. Johnson, 5 Pa. C. C. R. 236, which is in point, was a capital case, and the learned judge who delivered the opinion misunderstood Ritchie v. Holbrooke, 7 S. & R. 458, which he regards as qualifying, or impeaching Cluggage v. Swan, for C. J. Txlg-hman takes pains to distinguish the case, and received the affidavits of jurors to show misconduct by one of the parties to the suit, but not to impeach the verdict, or show the misconduct of the jurors. “ The passage cited from Wharton’s Crim. PI. & Pr., 9 ed., § 847, seems to me well answered by Turxjey, J., in Saunders v. Fuller, 4 Humph. 516, who says : ‘ If the verdict from misapprehension be found either against the law of the ease, or the weight of the testimony, the evil can be easily remedied without affidavit; and if it be against neither the one nor the other there is no remedy required, and no necessity for investigating the secret operations of the minds of the jurors in arriving at their verdict. “ The great weight of authority everywhere, and I think all the authorities in Pennsylvania, are against the reception of the testimony of jurors, to impeach their verdict, either by showing their own misconduct or by contradicting the record as to their determinations. An exception is recognized in some courts, where the verdict agreed upon by the jury has been misapprehended and erroneously recorded by the court; or where, by the mistake or misconduct of the foreman, the verdict has been announced contrary to the intention of the jury. But the case in hand cannot be brought within this exception. The affidavits do not allege that any of the jury misunderstood the language of their verdict, but merely that they did not intend to find what the plain and unambiguous terms used import. The paper which they brought into court admits of but one interpretation, and cannot be tortured into meaning what the affidavits allege was the finding of the jury. “If anjr wrong is done in this case we regret it; but it is not contended that the evidence did not justify the verdict as it stands. To admit the proposition that a jury, after solemnly rendering a verdict in open court, not only orally, but by writing prepared by themselves, may set it aside by their affidavits made afterwards would be a serious blow to the purity and dignity of judicial proceedings.” Errors assigned were (1-8) instructions; (4) ruling on evideuce, quoting instructions and bill of exception but not evidence offered; (5) in entering judgment on verdict; (6) in refusing to set aside verdict. There is no evidence that Smalley authorized Pickett to make any representations. Defendant’s delay in tendering back the property indicates a ratification of the contract: Pearsoll v. Chapin, 44 Pa. 9 ; Negley v. Lindsey, 67 Pa. 217 ; Leaming v. Wise, 73 Pa. 176 ; Oil Co. v. Marbury, 91 U. S. 592. Why. should less evidence of fraud be needed to successfully defend against a promissory note than to vary and contradict on the same ground the terms of a written agreement? To do the latter requires evidence clear, precise and indubitable : Thorne v. Warfflein, 100 Pa. 526. The verdict was wrongly entered: Cogan v. Ebden, 1 Burrows, 383; Rex v. Simmons, 1 Wils. 329; Com. v. Johnson, 5 Pa. C. C. R. 236. We do not seek by affidavits of the jurors to impeach their conduct in rendering the verdict, but do seek to show that the court erred in moulding an obscure verdict into a new one that the jury never agreed to. That the court below had a right to correct a manifest error in the verdict, even after the jury were discharged, is well settled: Keen v. Hopkins, 48 Pa. 445; Clouser v. Patterson, 122 Pa. 372; Wolfran v. Eyster, 7 Watts, 38; Reitenbaugh v. Ludwick, 31 Pa. 141; Newell v. Wilgus, 35 Pitts. L. J. 306; Cluggage v. Swan, 4 Bin. 150; White v. White, 5 Rawle, 61; Hutchinson v. Sandt, 4 Rawle, 234; Watkins v. B. & L. Asso., 97 Pa. 514. The positive acts, misrepresentation of facts and concealment of material matters by an agent, when part of the res gestae, are binding upon the principal: Story on Agency, 7th ed., §> 137; Addison on Torts, § 1197; Addison on Contracts, 631; Lynch’s Ap., 97 Pa. 350; Hughes v. First Nat. Bank, 110 Pa. 428. Whether the property was real or personal, Morris was not bound to rescind by reason of the fraud practiced upon him. Defence upon equitable grounds may be taken to an action of purchase money even at common law : Tyson v. Passmore, 2 Pa. 123; Heastings v. McGee, 66 Pa. 384; Lowry v. McLane’s Admr., 3 Grant, 333; Krumbhaar v. Birch, 83 Pa. 428; Blygh v. Samson, 137 Pa. 368. The testimony and all other facts necessary to a proper comprehension of the question must be quoted with the assignment of error: Express Publishing Co. v. Aldine Press, 126 Pa. 347; Royse v. May, 93 Pa. 454; Cornish v. Hooker, 141 Pa. 138. The verdict was properly entered before this court, and is the only verdict on the record: Walters v. Junkins, 16 S. & R. 414; Ring v. Baker, 4 W. N. 185; Scott v. Scott, 110 Pa. 390; Dornick v. Reichenback, 10 S. &. R. 84; Reese v. Stillé, 38 Pa. 139; Wolfran v. Eystei*, 7 Watts, 39; Willard v. Shaffer, 6 Phila. 520; Gaskill v. Crawford, 130 Pa. 28 ; Schubkagel v. Dierstein, 131 Pa. 46; Cohn v. Scheuer, 115 Pa. 178; Hoar v. Flegal, 1 Penny. 208. After a verdict is rendered and recorded, and the jury dismissed, the members of the jury cannot alter their verdict by a certificate or affidavit of mistake, or give evidence to impeach it: Cluggage v. Swan, 4 Bin. 150; White v. White, 5 Rawle, 61; Norton & Co. v. Breitenbach, 1 Pearson, 467; Com. v. Miller, 3 Lancaster L. R. 175; Building Assn. v. Mitchell, 2 Kulp, 343 ; Com. v. Haines, 38 Leg. Int. 94 ; Ring v. Baker, 4 W. N. 185; Mattox v. U. S., 146 U. S. 140; Clum v. Smith, 5 Hill, 560; Dana v. Tucker, 4 Johns. 487; People ex rel. Hosmer v. Columbia Common Pleas, 1 Wend. 297.
157 Pa. 358Krepps v. Carlisle (1893)Verdict and judgment for plaintiffs
Appeals, Nos. 146 and 261, Jan. T., 1892, by defendants, Wilson Carlisle and Robert Bolen, from judgment of C. P. Fayette Co., June T., 1888, No. 100, on verdict for plaintiffs, Ada. D. Krepps, widow, and Anna Y. Krepps, John B. Krepps, Jr., and Lizzie B. Krepps, children and heirs at law of John B. Krepps, deceased. Ejectment. Before Ewing, J. Before the case was called for trial, the death of Lizzie B. Krepps, one of the plaintiffs, was suggested of record. At the trial, the only question in dispute was as to where upon the ground was the eastern end of the bridge over Dunlap’s creek. Plaintiffs did not deny that if that point was the end of the span over the creek, or the abutment or pier on the east bank of the creek, the lot in dispute would not be covered by their title papers, nor did defendants allege that they had any title if the eastern end of the bridge was the beginning of the structure which led up to the creek span. When one of the defendants was on the stand the following offer was made : Mr. Campbell: I propose to prove by this witness, that since the death of the plaintiffs’ intestate, the location of the old abutment of the bridge (that it) has been uncovered by a flood, and to prove the location of it as this witness saw it since the death of John B. Krepps. Objected to as incompetent, because the effect of it is to prove the existence of a fact during the lifetime of John B. Krepps, or his predecessors in the title. Objection sustained and exception. [2] Plaintiff offered as a witness Solomon G. Krepps as to matters occurring prior to the death of his father, Samuel J. Krepps. Mr. Campbell: I object to this witness answering any questions about matters occurring prior to the death of his father. By the Court: He has no interest in it, has he ? Mr. Campbell: Well, he might have, we don’t know about that, — he is one of the heirs of Samuel J. Krepps, they might have a part of the Carlisle land in that partition. By the Court: That wouldn’t make any difference, he must claim under Samuel J. Krepps. Mr. Campbell: Well, the best understanding I can get of the act of 1887 is, whenever there is a controversy including the whole of any property that has passed by devolution, the parties interested in that stand as they did before the act was passed. By the Court: But he has no interest; that, is what I am trying to get at. Mr. Campbell: Yes, he would be a competent witness between his brothers and sisters, but here is a case where the whole estate of Samuel J. Krepps is against an outsider. By the Court: Any interest he may have had he has parted with long ago. Mr. Lindsey: And neither is he a party to the record. Mr. CampbellI don’t know whether he has parted with his interest. By the Court: I thought he had by the partition proceedings introduced here. Objection overruled and bill sealed. '[8] The court charged in part as follows: “The jury will remember what the contention between the parties here is. [It is practically an inquiry for you to determine where was the eastern end of the bridge over Dunlap’s creek, which was the point upon the ground called for in the reservation made in the agreement between Gillespie and Krepps,] [2] and subsequently the point called for as descriptive of the land conveyed by Gillespie to Eli Abrams, and from him to Lucas, and through him to Samuel Thompson, one of the present defendants. If the eastern end of the bridge over Dunlap’s creek means the end of the span going over the creek as contended for by the defendants, then the Krepps deeds do not cover the land in dispute, but it was expressly reserved by Gillespie and is embraced in the papers showing title here in the defendant Samuel Thompson and the other defendants in this case who hold under him. “ Now as bearing on that point you will have to determine just exactly what the nature and character of the structure was at that time, so as to find out where the end of the bridge was. A bridge, as you all know, is a structure made for the purpose of obtaining a passageway over something; ordinarily, it is over streams, but it may be over other roadways. Here, the object of the structure was to get a passageway over Dunlap’s creek. But by reason of the conformation of the ground on the eastern side of the creek in the borough of Brownsville, it seems to have been necessary to make some wa}r of getting to an elevation which would plant you upon the other side properly in the borough of Bridgeport, the bank there being much higher than in the borough of Brownsville; and some of the witnesses have said, and detailed to you here in your hearing, that the bridge structure' began within three or four feet of the Abrams house and was continuous from there until resting upon the abutment on the other side. Others have said, and it is argued by counsel for the defendants here as their case, that the erection, structure, whatever it was, extending from near Abrams’s house to where that pier on the eastern side of the creek rested, was but an approach to the bridge proper — not a portion of the bridge, but simply an approach to it; that the bridge began at that pier, and that the other was but the approach, and that since this present bridge had been erected that it has all been filled in and made of solid earth and is no part of the bridge at all, although then it was a wooden roadway resting upon trestles. Now in addition to the character of the Structure there as you have it from the testimony of the witnesses and from the delineation shown upon the plot given in evidence here, it is contended, by the one party and the other, that this point and that, according to their respective positions in this case, was recognized as the end of the bridge, by the party who held title to this property at the time and soon after it was sold by Gillespie to the different subsequent owners. [For instance, the plaintiffs contend here, that Eli Abrams who was the first vendee of Gillespie said, as Judge Duncan has told you in his testimony, .that the line of his land was about his porch, or along his porch, taking in, perhaps, a portion or nearly all of his porch, and that was the line, as we understood, between him and Krepps running along the western porch of his, Abrams’s residence.] [3] [Then Daniel Campbell, another witness on the part of the plaintiffs, testified that Lucas, while he was the owner of the property there, told him that he only claimed the ground his house covered, and his porch. That is, I believe he said the whole of his porch — the ground covered by his house and the entire porch, or a portion of it at least, the porch being on the west side of his house.] [4] Those witnesses detail these facts, and the plaintiffs say that that goes to show that the parties who owned the land at that time, recognized the end of the approach, as we will say, to distinguish it from the bridge proper, to be the end of the bridge, and it was so meant and intended and recognized by the parties in making these conveyances wherein they spoke of these corners of the land; and you will remember that that comes within three or four feet of the Abrams house; and according to this testimony, if those parties recognized it at the time, it goes to show that they only claimed the land up to that point. On the other hand, instead of that being the case, and in addition to the arguments they use as to the nature and character of the structure there, the defendants claim that it is shown by the testimony of William Chatlandt and other witnesses that Lucas claimed, when he was in possession, that the ground ran clear up to where they claim the line was — up to the end of the bridge — and they say that this is shown by the testimony of William Chatlandt when he testifies that he rented this house from Lucas in 1854, I believe, and resided there from 1854 to 1859, and during that time, in addition to the porch on the west side of the house, he also had a kitchen just outside of the porch — a small structure some 8x10, and also had a hogpen outside of the porch there somewhere about the same size, and in addition to that a garden plot which he made use of by the consent of Mr. Lucas, his landlord, which garden plot, he says, extended from these buildings about some thirty feet in the direction of the bridge, being some ten or twelve feet wide and inclosed by the parapet wall or wing-wall on the one side and by a stave fence which he made on the other side; that he used that while he was there, and that, after he left, Lucas continued to use it; and that it is also shown, they say, by the testimony of Harvey Leonard, who says that there was a fence upon this ground most of the time, or at least a portion of it, and that this ground covered by these buildings is a portion of the ground that is now claimed in this suit; and so they say, that having made use of it in that way, goes to show that they claimed title to it, and that the land meant to be embraced between the Abrams house and the eastern end of the bridge was the land between the Abrams house and the eastern end of the bridge proper, or the span going over the creek, and not the approach or trestle way leading to that span. “ [ On the other hand it is not denied that the Ivreppses always claimed title to this land, and one of the witnesses — Mr. Chatlandt, I believe — speaks of Mr. Krepps having come along there one day and spoken to him about having inclosed a part of his land, but he would allow him to use it in that way as long as he staid there, they being great friends.] [5] The land embraced in this action it seems was vacant, unimproved land lying open there, not improved in any way up until comparatively recent years, and adjoining it, and likewise embraced in the inclosure, so far as the evidence discloses, and not separated from it by any lines or division fence, or anything of that kind, from the lot in dispute, was what was known as the Krepps bottom; and they say that the Kreppses always claimed that it was embraced within their title papers and that it was a portion of their claim along with the bottom lands, and was so used. [But there doesn’t seem to have been a continuous inclosure, occupation or cultivation of this particular lot of ground for any time, so as to give title by hostile, adverse, continuous possession, so that it refers to the construction of the title papers in this case as to what was meant by the eastern end of the bridge over Dunlap’s creek.] [6] [If it was the eastern end of the span over the creek, why then, according to the papers, you may find that the land is embraced within the Thompson deed and not the Krepps conveyance, and your verdict should then be for the defendants. If it was the beginning of the structure by which passage was made from the eastern side of Dunlap’s creek to the western side, and which came within three or four feet of the Abrams house, then it is contended by counsel that you may find from the papers that the land in dispute is embraced in the title papers of the plaintiffs, and was not embraced in the reservation made by Gillespie, and your verdict should be for the plaintiffs. This is the question you will have to determine from the testimony you have heard from the witnesses here and the facts and circumstances surrounding the ease, as you may determine from the plot and other matters of record which have been given in evidence before you.] ” [7] Errors assigned were, (1, 8) rulings on evidence; (2-7) instructions, quoting bills of exceptions and instructions as above. Stephens v. Cotterell, 99 Pa. 188 ; Rothroek v. Gallaher, 91 Pa. 108 ; Porter v. Nelson, 121 Pa. 628 ; Patterson v. Dushane, 137 Pa. 23 ; Feig v. Meyers, 102 Pa. 10; Miller v. Eshleman, 43 Leg. Int. 499; Sandford v. Decamp, 8 Watts, 542; McLaughlin v. McLaughlin, 91 Pa. 462; Potts v. Wright, 82 Pa. 498; Hart v. Girard, 56 Pa. 23; Connelly v. Walker, 45 Pa. 449; Palmer v. Farrell, 129 Pa. 162; Jones v. Janney, 8 W. & S. 436; Webster v. Laudenslager, 84 Pa. 446.
157 Pa. 367Porter v. Dawson Bridge Co. (1893)Defendant appealed
Appeal, No. 387, Jan. T., 1893, by defendant, from judgment of C. P. Fayette Co., June T., 1891, No. 200, on verdict for plaintiff, Samuel E. Porter. Assumpsit for penalties for overcharges of toll. At the trial, before Inghram, P. J., it appeared that plaintiff was a resident of tlie town of Vanderbilt, and that he ran a hack or omnibus line from that town to the town of Dawson to connect with the Baltimore and Ohio Railroad, and that, in doing so, he was compelled to pass over defendant’s bridge. Between Feb. 4, and April 4, 1891, he carried 579 passengers over the bridge, and was charged by defendant the foot passenger rate for each person carried, in addition to the charges for the vehicles. Other facts appear by the opinion of the Supreme Court. u Defendant offered to show the motive of plaintiff in bringing suit; also that defendant had advice of counsel as to the charge made and that the charge was made in good faith. Objected to, excluded and exception. [14-17] Plaintiff’s points were as follows : “1. That under the testimony the plaintiffs are entitled to recover the penalty of ten dollars for each and every time the defendant company collected from plaintiff more than fifteen cents toll for a two horse four wheel vehicle, and more than twenty cents toll for a four horse four wheel vehicle.” Affirmed. [2] “ 2. That under all the ^testimony the plaintiffs are entitled to recover.” Affirmed. [8] “ 8. That the defendant company have no right to collect toll more than fifteen cents for each two horse four wheel vehicle, nor more than twenty cents for each four horse four wheel vehicle ; and have no right to collect from plaintiff more than said rates by reason of having passengers as a part of his freight or load.” Answer: Affirmed.] [4] “ [The third point we affirm, for the present, at least, and it not being disputed, gentlemen of the jury, that the company did collect from this plaintiff the amount which the plaintiff claims to have paid to the company, the amount of the penalty would be easily ascertained, and it is claimed by the plaintiff to amount to five thousand seven hundred and sixty dollars, and, with your consent, the prothonotary will now take your verdict for that amount in favor of the plaintiffs.]” [1] Defendant’s points were as follows: “ 1. That under all the evidence in the cause, the plaintiff is not entitled to recover and their verdict must be for the defendant.” Refused. [5] “ 2. That clause 2 of section 7 of the act of April 17, 1876, P. L. 84, under which this action was «brought, was supplied and repealed by the act of May 6, 1887, P. L. 92.” Refused. [6] “ 3. That there is no evidence in the cause to warrant the jury in finding that the defendant company ever demanded any greater rate or price for plaintiffs vehicles passing over said bridge than that prescribed in the list of tolls put up at the gate of said bridge.” Refused. [7] “4. That, under the evidence in the cause, the defendant company collected tolls off plaintiff but five times, and that if plaintiff is entitled to recover at all, there can only be a recovery in this action for five penalties, viz.: fifty dollars.” Refused. [8] “ 5. That there is no evidence in the cause showing that the defendant company at the time named in the plaintiff’s statement demanded and collected from the said Samuel E. Porter a greater amount than twenty cents for said plaintiff’s four wheeled vehicle and four horses attached thereto, passing over defendant’s bridge at any one time.” Refused. [9] “ 6. That if the evidence discloses any excessive charges for plaintiff’s four wheeled vehicle witii two horses attached thereto, passing over defendant’s bridge, there can be no recovery for them in this action.” Refused. [10] “ 7. That the defendant company did not incur the penalties imposed by clause 3 of section 7 of the act of April 17, 1876, P. L. 34, by collecting two cents toll for each passenger conveyed across said bridge in plaintiff’s vehicles, in addition to the legal toll for said vehicles.” Refused. [11] Verdict and judgment for plaintiff for 15,760. Errors assigned were (1-11) instructions; (14-17) rulings on evidence ; quoting instructions, and bills of exceptions. The act of May 6, 1887, P. L. 92 repealed and supjfiied clause 2 of sect. 7 of the act of April 17, 1876, P. L. 30, and consequently there could be no action brought on it: Com. v. Cromley, 1 Ash. 181; Bartlet v. King, 12 Mass. 545; Rogers v. Watrous, 8 Texas, 62; Cain v. State, 20 Texas, 364; Pierpont v. Crouch, 10 Cal. 316; State v. Wilson, 43 N. H. 415 ; Norris v. Crocker, 13 How. 429; Endlich, Interp. Stat. § 200; Sedgwick, Stat. and Const. Law, 124; Dash v. Van Kleeck, 7 Johns. 477. Penal laws must receive a strict construction and should not be extended beyond the evident intention of the legislature, as expressed upon their face: Com. v. Standard Oil Co., 101 Pa. 150 ; Bucher v. Com., 103 Pa. 528 ; Andrews v. U. S., 2 Story, 203 ; Schooner Enterprise, 1 Paine C. C. 32; Hines v. R. R., 95 N. C. 434; Potter’s Dwarris on Statutes, 247. It appears by the testimony in the case that defendant charged and collected two cents for each passenger crossing the bridge in plaintiff’s hack. It also clearly appears that defendant company did not demand or collect from plaintiff any greater rates of toll for his hack than those prescribed b3r the act and posted at the bridge. To construe the act of 1876 to mean a “ greater or other rate ” would be contrary to the rules of construction of penal statutes as laid down in all the adjudicated cases and text books on the subject: Central R. R. v. Green, 86 Pa. 432. If plaintiff is entitled to recover at all, it can be only for one penalt3r, at most for no more than five. There was no demand made for the pa3',ment of these tolls, but they were paid by plaintiff at five different times. If these pa3>,ments are construed to be a “ collection,” then the defendant compan3r is liable for five penalties. There has been no repeal of the act of April 17,1876 : Brown v. County Coin’s, 21 Pa. 43; Malloy v. Reinhard, 115 Pa. 31; Sifred v. Com., 104 Pa. 179 ; Dwarris on Statutes, 154; Wallace v. Barrett, 41 Barb. 92; McCool v. Smith, 1 Black U. S. 459 ; Bank v. Com., 10 Pa. 442; Erie v. Bootz, 72 Pa. 196; Wright v. Vickers, 81 Pa. 122; Barber’s Election, 86 Pa. 392; Harrisburg v. Sheck, 104 Pa. 57. The bridge company should have made itself fully acquainted with the law. It was even attempted on the trial to show that the company had been advised by its counsel that it was authorized to collect for every passenger, in addition to the regular toll for the hack. Even if they had been so advised, it would be no defence to this action. The taking of the excessive tolls being the gist of the offence, the intention of the parties is not to be considered: Coates v. Wallace, 17 S. & R. 80; Reynolds v. Smith, 2 Browne, 257; Gibson v. Gault, 33 Pa. 44. Under the language of the act, a mere demand of excessive toll throws the party liable for the penalty. In this case there was both a demand and a collection, after protest, against paying. The offence was certainly committed every trip the hack made, where excessive toll was charged: Bartolett v. Achey, 38 Pa. 277; Gibson v. Gault, 33 Pa. 44; Central R. R. v. Green, 86 Pa. 432.
157 Pa. 379Lock Haven Bridge Co. v. Clinton County (1893)Plaintiff appealed
Appeal, No. 151, Jau. T., 1893, by plaintiff, from judgment of C. P. Union Go., Dee. T., 1891, No. 49, on verdict for plaintiff. Proceedings to free bridge. Before McClure, P. J. At the trial it appeared that plaintiff was incorporated under' act of March 4, 1850, P. L. 782. Section 13 of the act is as follows : “ At any time after the expiration of twenty years from the time of completing said bridge, it shall be lawful for the commonwealth to purchase the same, by paying to the said company a sum of money which, together with the dividends declared, shall equal the cost of constructing said bridge and ten per cent per annum interest thereon.” Plaintiff offered to prove what the Lock Haven bridge cost in its original construction, and what the receipts from tolls have been from said bridge from year to year to the present; what dividends have been allowed and paid to the stockholders from the time of the completion of the bridge to the time it was taken for public use. In order to show what amount of money the corporation is entitled to receive under its contract with the commonwealth. Defendant objected for the following reasons: (1) That the value of the structure at the time of its seizure by the defendant is the true measure of damages. (2) That the original cost is irrelevant and immaterial. (3) The offer as made is irrelevant. By the Court: We are of the opinion that in this proceeding the measure of damages is the value of the bridge and franchise at the time of the taking, and that the charter of the bridge company is not such a contract between the bridge company and the commonwealth as could not be affected by subsequent legislation providing for the payment of an adequate compensation for the bridge upon its taking by the county of Clinton. For the present so much of the offer as proposes to show the cost of the structure is rejected. We will admit the evidence tending to show the dividends declared by the company to the stockholders as an element in determining the value of the structure and franchises. Exception. [1] Plaintiffs offered to prove how much the Lock Haven bridge originally cost, before it was completed, ready for travel and $the taking of toll; how many and the amount of dividends declared and paid to the stockholders, from the completion of the bridge to the time the same was taken by Clinton county. This evidence is offered for the purpose of furnishing the basis of determining the amount to bo paid to the plaintiff for the taking of the said bridge, under and in pursuance of the contract between the Commonwealth of Pennsylvania and the Lock Haven Bridge Company, contained in the thirteenth section of the act incorporating said company, approved March 4, 1850. Defendants objected to this offer: (1) Because it is not evidence for the purpose offered. (2) Because the evidence does not properly fix the damages which the county must pay for the taking of the bridge. (3) Irrelevant. Per Curiam: For the reasons stated in ruling plaintiffs’ offer No. 1, the objections are sustained and the evidence rejected. Exception. [2] Defendant proposed to ask his witness the following: Q. State whether there are bridges other than this in question crossing the Susquehanna river upon the road leading to and from Lock Haven where this bridge is located; if so, how far they are located from the Lock Haven bridge, and are they free or toll bridges; if free bridges how long have they been such ? This is offered for the purpose of showing the jury the facilities to the public for crossing free of charge this same stream, the Susquehanna river, which is spanned by the bridge in question, and enable the public to reach Lock Haven at the same point at which the bridge in question terminates. Mr. Kress: Objected to: (1) Because it is incompetent to show by this witness when those bridges were made free. It is a matter of record and the record would be the best evidence. (2) It is irrelevant unless it is offered to be shown in connection with this, that the making of those bridges free reduced the tolls of this bridge. The Court: We will allow you to ask the question of this witness whether, at the time the bridge was taken, there was a free bridge one mile away. The witness : “ There was a free bridge one mile away from the Lock Haven bridge, I believe.” By Mr. Hippie: “ Where were those bridges, on what road ? A. On the road leading from Lock Haven to Jersey Shore,* crossing two branches of the river, one at the upper and one at the lower end of the island, a mile below Lock Haven. Q. Was that the main road leading through Clinton and into the adjoining counties ? A. I think it was, leading into the eastern part of the county.” Mr. Hippie: We offer to prove tl^at during the years covered by plaintiff’s proof of dividends and moneys received by the Lock Haven bridge, except a part of the year 1890 and subsequent, these bridges had been toll bridges the same as the Lock Haven bridge; and that after the flood of 1889, they having been carried away, they were rebuilt as free bridges and opened in 1890 as such. Question allowed and exception. [8] The witness answered in the affirmative. Depositions of witnesses were received, under objections and exceptions, to the effect that the travel on the bridges that were freed increased, and the travel on plaintiff’s bridge diminished, thereafter. [4, 5] The court charged in part as follows : “ [The question is one of damages, and the measure of these damages is a just compensation to the bridge company for the injury they have sustained by reason of the taking of this bridge, and in arriving at that you should determine the value of the bridge, the piers and abutments, the tollhouse and superstructure of the bridge and the franchises, or the right to maintain and operate a bridge there and take tolls from the traveling public.] [9] . . . . “ [A number of things enter into it, the value of the superstructure and substructure of the bridge and the value of the tollhouse, the property of the- company there, and the franchise, the right to take toll, are all to be included; and we have admitted this evidence of the value of these different parts of the bridge in order that you may arrive at its value, and taking it in connection with the value of the franchise, or right to take toll, this must all be considered by you in making up your verdict of the damages which this company have sustained by the taking of the bridge by the county.] [10] “ [You have heard the figures gone over as to the amount of the receipts of the company during the last seven years, from 1884 down to 1891, and the amount of expenditure, and you can calculate from that about what the net income of this bridge would be; as I understand, Mr. Harris has stated that the ordinary expenses of the bridge were in the neighborhood of eight hundred dollars per annum, which he itemizes as toll keeper, treasurer and managers’ salaries, gas and taxes, and all these things should be considered by you in determining what the net income of this company would be each year.] [11]. . . . “ [There is another element you will take into consideration in the valuation of this bridge, and that is its liability to be destroyed by floods, by ice and by storm. The evidence is that in 1859 a portion, or may be the whole, of this roof, I do not recollect, was blown off the bridge; that in 1865 one span was carried away and another injured; that in 1876 the bridge was rebuilt and placed four feet higher than it had been before, and that again in 1889 it was again damaged by the flood; the spans are out of line and the loggerheads knocked from it, and there is evidence that the north pier is in a strong current and must be riprapped pretty often, as some of the witnesses said, and some said every year. This is evidence to show you the character of the structure and its liability to be destroyed, and it was allowed to go in with the other evidence, for you to determine what this property is worth to the bridge company.”] [12] “ [It is contended on the part of the plaintiff that it matters not whether the bridge below was a free bridge or not; that the tolls they received were the same as before. That is a question for you to determine ; you have the figures before you and you will determine the question from the evidence.] ” [13] Defendant’s points were as follows: “ 1. That the franchise of the plaintiff consists of the right to construct and maintain a bridge and to charge tolls for the use of the same, and that the value of this franchise cannot be ascertained as a separate and distinct item of damage, but must be considered in connection with the property to which it appertains.” Affirmed. [14] “ 2. That the jury cannot allow, as a measure of damages, a gross sum that would yield an income equal to the past or anticipated net profits from the bridge. Answer: This point is affirmed and I refer you to what I have said in the general charge as to the measure of damages.” [15] “ 8. If the jury believe from the evidence that there was a bridge free for all to travel at the Great Island, from one to two miles below the bridge in dispute, that this must be considered in ascertaining the measure of damages. Answer : This point is affirmed. You will recollect the testimony of the witnesses as to the distance the Great Island bridges are away, .to which I have referred in the general charge.” [16] “ 4. If the jury believe from the evidence that the north pier of the bridge and the abutment on the same side were exposed to an extraordinary current which washed the foundations of the pier, and further find that the bridge was exposed to liability of destruction or damage from floods, ice, floating logs and violent winds, which at times actually damaged it, that this must be considered in estimating the value of the structure. Answer : Not affirmed as put. There is no evidence as to washing the foundations of the abutment on the north side of the river. But if the jury believe from the evidence that the north pier of the bridge and the abutment on the same side of the river was exposed to an extraordinary current which washed the foundations of the pier, and further find that the bridge was exposed to liability of destruction or damage from floods, ice, floating logs and violent winds, which at times actually damaged it, this must be considered in estimating the value of the structure, as I explained to you in the general charge.” [17] “ 5. If the jury find from the evidence that the stone in the abutments and piers was inferior in quality, badly laid up, and that there were cracks in the same at the time of the taking of the bridge, that this must be considered by the jury in fixing the value.” Affirmed. [18] “'6. If the jury find from the evidence that at the time the defendant took possession of the bridge the arches were strained, the structure out oí line, that it required a new roof, was destitute of proper braces, and was otherwise damaged, that all this must be considered in estimating the value.” Affirmed. [19] “ 7. That the jury in estimating the value of the structure must consider its ago, its Lability to injury or destruction by floods, ice and storm.” Affirmed. [20] Verdict and judgment for plaintiff for 114,141.25. Errors assigned were (1-5) rulings on evidence; (9-20) instructions; quoting instructions, and bills of exceptions and evidence. A state may grant franchises to a corporation upon condition that the grantee shall assume certain duties or obligations : Fletcher v. Peck, 6 Cranch, 135 ; Boston R. R. v. Salem R. R., 2 Gray, 1; College v. Woodward, 4 Wheat. 518; Enfield T. B. Co. v. Connecticut R. R., 7 Conn. 44; People v. Platt, 17 Johns. 215; Derby Turnpike Co. v. Parks, 27 Am. Dec. 700. The remedy being provided by the charter, that remedy must be pursued : Royersford Bridge, 112 Pa. 627; Charles River Bridge v. Warren Bridge, 7 Pick. 462; Green v. Biddle, 8 Wheat. 1; 1 Kent, 449. If the state were not bound by this clause in fixing the compensation in proceedings to take the bridge by the right of eminent domain, then this section is nugatory, and the promise was only made to deceive : Norman v. Heist, 5 W. & S. 171. This act like every other act and charter of the same kind, is a contract between the state, on the one part, and the subscribers accepting the act of incorporation, on the other; and therefore what they both intend by the terms used, if we can ascertain it, forms the true construction of the contract: Boston R. R. v. Salem R. R., 2 Gray, 1. This section was also intended as a protection to the state : Enfield T. B. Co. v. Hartford R. R., 42 Am. Dec. 721; Dillon, Mun. Corp. § 612. Where corporate property is taken by virtue of the right of eminent domain, the grantee does not suffer loss. The ex-elusiveness of the grant, and the agreement against interference with it, constitute elements in its value to be computed in assessing compensation for its condemnation: State etc. R. R. v. Hudson T. R. R., 38 N. J. L. 558. The taking by the right of eminent domain is a purchase. It is not an alteration, modification or repeal of the charter, it is the enforced purchase of its property: Backus v. Lebanon, 35 Am. Dec. 469; Burt v. Merchant’s Ins. Co., 106 Mass. 356; Hackett v. School Dist., 150 Pa. 220. Plaintiff’s construction of the act of 1850 would ' amount to an extinction of the right of eminent domain, and especially of one essential element thereof, viz., the right of the commonwealth to take property for public use upon payment of just compensation for the injury sustained, and it would be an abridgment of that right which it was beyond the power of the legislature to enact so as to bind the commonwealth or subsequent legislatures: Royersford Bridge, 112 Pa. 627; Mills, Em. Dom. §40; Backus v. Lebanon, 11 N. H. 19; Cooley’s Const. Lim. § 283 ; Garrison v. New York, 21 Wal. 196. The authorities cited by plaintiff merely establish that franchises or privileges arising out of charter contracts may be valued and assessed along with the bridge structure proper, and if it has value as a franchise or privilege that value may be included in the compensation or damages allowed. If a statutory remedy is not complete in ascertaining damages and securing their payment, the common law remedy may be pursued: Mills, Em. Dom. 88. The pursuit of one remedy waives the right to the other: Mills, Em. Dom. 88; Pinkham v. Chelmsford, 109 Mass. 225; Herman, Estoppel, § 1, 501; Cooley’s Const. Lim. 695. If any doubt arise as to the actual purpose and object of this section 13 and as to how it shall be construed, then plaintiff must for that reason fail, because it cannot have any forced construction of its charter, nor can it depend upon inference or implication. Franchises cannot be created by or arise from implication or intendment: Charles River Bridge v. Warren Bridge, 11 Pet. 420; Mills, Em. Dom. § 39; Cooley’s Const. Lim. 488; Penna. R. R. v. Canal Com’rs, 21 Pa. 22; R. R. v. Com’rs, 37 N. J. L. 239; Backus v. Lebanon, 11 N. H. 19; Bethlehem Toll Bridge, 12 Pa. C. C. R. 311.
157 Pa. 390Barber v. Mensch (1893)Verdict and judgment for defendant
Appeal, No. 23, July T., 1893, by plaintiff, William B. Barber, from judgment of C. P. Union Go., Dec. T., 1891, No. 46, on verdict for defendant, Benneville Menseh. Appeal from justice of the peace. Trespass for injuries caused by defendant’s cattle. Before McCetjre, P. J. The facts appear by the opinion of the Supreme Court. The court charged in part as follows: “ The contention of the plaintiff is that the act of 1700, providing for the erection of fences about cornfields, and other inclosures, and naming the kind of fence, height of it, and manner of its construction, was repealed by the act of 1889; that with that act fell the act of 1842, providing for the cost of maintenance and erection of partition fences between adjoining landowners. On the other hand, the defendant contends that, while the act of 1700 was repealed, the act of 1842 is still in force, and that it is still necessary for landowners to keep up the partition fences. Without any act of assembly on the subject, at common law, a man is not obliged to fence against his neighbor’s cattle, and a person is responsible for any damage that his cattle might do on the land of another. The act of 1700 was intended to prevent that in this state, and from that time until 1889 it did so. The act of 1842 we do not think was rendered null and void by the repealing act of 1889, as contended by defendant’s counsel. Between adjoining landowners, the act of 1842 is still in force, and it is now, as it was before the act of 1889, necessary for farmers to build partition fences,’ and to maintain them. That is the principal point which is raised in this case. [Therefore, as between Mr. Barber and Mr. Menseh, this fence being a common fence, they were both bound to see that it was in repair; that is, it was the duty of each of them to keep up every part of the fence, unless there was an agreement between them that one should keep up one part and the other the other, and I believe there was no evidence of any agreement of that kind in this case.] [1] There had been an agreement years before between Barber and Menseh as to the partition fence along the north line and east line of the tract of Menseh; but having sold part of the property to R. W. Barber, this agreement fell between the points A and B on the map. At least, the defendant does not contend that they were not jointly liable to build the fence. Hence, if this fence between the points A and B, and through which the cattle passed, was defective, it was as much the fault of Barber as of Mensch, and being the fault of Barber he could not recover of Mensch on account of its bad condition. . . . “ [There is just one question of fact for you to pass upon. Was the fence between these parties sufficient to keep out ordinary cattle. If it was not your verdict should be for the defendant ; if it was your verdict should be for the plaintiff for whatever damages you think he sustained.] ” [2] Plaintiff’s points were as follows : “ 1. That since the act of April 4, 1889, no line or partition fence is required to be made between the lands of adjoining owners, and no condition of any so called line fence will excuse the defendant in the present case, if the jury believe that the defendant’s cattle were without permission on plaintiff’s lands.” Refused. [3] “ 2. That if such line or partition fence is required, the evidence shows that the plaintiff did all that he was legally required to do in relation thereto, and if the jury believe that the defendant’s cattle were upon the plaintiff’s land without his permission the plaintiff is entitled to recover.” Refused. [4] “ 3. That since the passage of the act of April 4, 1889, no man is required to fence against his neighbor’s cattle ; but every person is legally bound to restrain his own cattle. Answer : This point is refused as far as this case is concerned. That would apply to outside fences, but not partition fences.” [5] Defendant’s points were among others as follows: “ 3. That a partition fence is a common burden to both parties and both parties must build the fence; if they cannot agree, recourse must be had under the act of assembly of 1842, before any right of action can accrue from the condition of the fence.” Affirmed. [6] “4. That under the act of assembly if the parties cannot agree the adjoiner seeking to have the fence must build it himself and have recourse to the act of assembly.” Affirmed. [7] “ 5. That if recourse is not had to the act of assembly and a fence built under it, no right of action can accrue by reason of there being no fence, neither can a right of action accrue by reason of breachy cattle if there is no such fence.” Affirmed. [8] Hrrors assigned were (1-8) instructions, quoting them. We are unable to discover any case decided in Pennsylvania which goes to the extent that a defendant is relieved of his liability for the trespass of his cattle by reason of anything contained in the act of 1842. In Knappenberger v. Roth, 153 Pa. 614, wherein the facts are very similar to those in the present case, plaintiff was allowed to recover damages, although defendant Roth averred that the portion of the partition fence which Knappenberger ought to have kept up was in bad condition, and not sufficient protection against cattle of orderly habits. Odenwelder v. Frankenfield, 153 Pa. 526, did not involve the liability of an owner for the trespass of his cattle. In Rangler v. M’Creight, 27 Pa. 95, the act of March 11,1842, is not mentioned. Painter v. Reece, 2 Pa. 126, decided that in case either party abandons a partition fence, the fence viewers have no jurisdiction. Rohrer v. Rohrer, 18 Pa. 367, decides that fence viewers had no jurisdiction, because the adjacent land was not improved land but land open to the public. In Palmer v. Silverthorn, 32 Pa. 65, proceedings under the act of 1842 were not resorted to. In Gregg v. Gregg, 55 Pa. 227, it was said that the provisions of the act of 1700, that the owner of such cattle shall make good all damage to the owner of the inclosure, if it be fenced according to law, implies that without such fencing there is no such liability. When the act of April 4,1889, was passed repealing the first section of the act of 1700, it repealed the only law in Pennsylvania which required lands to be inclosed within a fence. The common law now obtains in Pennsylvania, and the landowner is not required to fence cattle out, but their owner must fence them in so as to avoid trespassing on his neighbor’s fields: Arthurs v. Chatfield, 9 Pa. C. C. R. 34; Thompson v. Kyler, 9 Pa. C. C. R. 205. In the case of Milligan v. Wehinger, 68 Pa. 236, cited by defendant below, an examination of the opinion of this court shows that the statutory duty to fence could only be based upon the act of 1700. Under the common law every man must keep up his cattle. The act of 1700, § 1, prescribed that the owner of lands must maintain a certain character of fence, and under it it was decided no cause of action accrued by reason of trespassing cattle unless that character of fence was maintained. That act is repealed, and no other, expressly or by implication. The act of 1842 established a distinct judicial tribunal for the adjudication of a right created by the act, proceedings before whom are a step in the legal remedy, an expedient the parties must adopt in the absence of a contract, before an action is allowed: Shriver v. Stephens, 20 Pa. 141. The keeping of the fence is a common duty: Milligan v. Wehinger, 68 Pa. 236. Knappenberger v. Roth, 153 Pa. 614, and Odenwelder v. Frankenfield, 153 Pa. 526, distinctly recognize the act as not repealed. Before a cause of action can accrue in favor of one adjoining landowner against the other, he must make a sufficient fence along the whole line, or have a portion of it assigned to the other, so that the duty would not rest exclusively on the latter to keep it in repair. Until the fence is apportioned between the adjoining landholders, it is equally the duty of each to keep up every part of it. Hence, if it is defective, it is as much the fault of one as the other, and being equally defective, neither can recover of the other on account of its condition. It is sufficient that the jury found that the fence was not sufficient: Rangler v. McCreight, 27 Pa. 95.
157 Pa. 399Norbeck v. Davis (1893)Verdict and judgment for plaintiff
[Marked to be reported.] Husband and wife — Execution—Interpleader—Evidence—Competency of wife as witness. In interpleader proceedings to determine the ownership of goods seized as the property of the husband, but claimed by the wife, the wife is a competent witness to support her title, if the husband disclaims ownership. If the husbaud actually claimed the property and were on the side of the execution creditor, then the antagonism which the law contemplates would exist, and the wife would be incompetent. Evidence of wife's ownership of household goods. Where the evidence shows that household goods had been in possession of a married woman for over thirty years, and that she received them from her first husband who had been dead for thirty years, the jury may fairly presume that her title was settled. In such a case, the fact that the second husband replaced various articles which were worn out by use, did not change his wife’s title. Assignment of error — Evidence. An assignment of error to the admission of testimony will not be considered where the bill of exception does not show the purpose of the offer, or the reason for the objection or admission of the evidence, the evidence being admissible for some purposes.
157 Pa. 407Smith v. Wehrly (1893)
Appeal, No. 59, July T., 1892, by defendant, George Wehrlv, from order of C. P. Lancaster Co., Nov. T., 1889, No. 88, in favor of plaintiff, H. G. Smith & Co., discharging rule to set aside execution. Rule to stay execution and open judgment. Testatum fieri facias to York county on judgment of justice of the peace. Before Livingston, P. J. The facts appear by the opinion of the Supreme Court. Error assigned was order discharging rule to stay execution. The proceedings were in violation of the act of May 5,1854, P. L. 581: Bannan v. Rathbone, 3 Grant, 259. The court below seemed to be under the impression that the act of June 24, 1885, P. L. 160, allowed the proceeding in question. That act does not repeal the act of May 5, 1854; it was not intended to be a substitute for it; they are concurrent. Implied repeals are not favored: Erie v. Bootz, 72 Pa. 196. Even if the former act was repealed, the appellant would not be affected. The judgment was entered in 1877. The second act was passed in 1885, more than five years after the rendition of judgment. His right to be notified by scire facias was vested, and where civil rights are affected, even repealing acts are not to be construed so as to have a retrospective operation. The act of 1885 is not retroactive. Legislation is never to have retroactive effect, except when enjoined by the most explicit language: Becker’s Ap., 27 Pa. 52; Morrison v. Fayette Co., 127 Pa. 110. There can be no question that the court below had the power to set aside or stay the execution, in this case, as it issued out of said court. It may strike off the judgment of a justice: Allen v. Krips, 119 Pa. 1; Pantall v. Dickey, 123 Pa. 431; McKinney v. Brown, 130 Pa. 365. The act does hot contemplate that a testatum fi. fa. should issue on a transcript of a justice, only on an original judgment of a court of record. It was held prior to the act of June 24, 1885, P. L. 160, that a transcript from the docket of a justice of the peace might be entered in the court of common pleas as a judgment, even as long a time as nineteen years after the entry of judgment by the justice: Diamond v. Tobias, 12 Pa. 312 ; Kaufelt v. Fisher, 1 Pears. 79. Up to June 24, 1885, plaintiff could, on a justice’s transcript, proceed by execution in the common pleas, only against defendant’s real estate; if he wished to proceed against defendant’s personal property, it was necessary for him to go back to the original judgment on the justice’s docket, and issue execution there. Should it be desirable to issue execution in the common pleas to reach personal property as well as real estate, it was only necessary to revive the judgment in the common pleas by scire facias: Bannon v. Rathbone, 3 Grant, 259; Harmony Building Association v. Berger, 14 W. N. 499.
157 Pa. 415Inquirer Printing Co. v. Wehrly (1893)
Appeal, No. 60, July T., 1892, by defendant, George Wehrly, from order of C. P. Lancaster Co., Nov. T., 1891, No. 87, in favor of plaintiff, discharging rule to strike off judgment and stay execution. Rule to stay execution and strike off judgment. Testatum fieri facias to York county on judgment of justice of the peace. Before Livingston, P. J. The court discharged the rule in the following opinion: “ The proceedings returned show that a summons in debt not exceeding $100 was, at the instance of the plaintiff, issued on August 10,1876, by John M. Amweg, Esq., against defendant, requiring him to appear on August 16, 1876, between the hours of 9 and 9& o’clock A. M., directed and delivered to constable. Summons returned August 10,1876, served on the defendant by producing the original summons to and informing him of the contents thereof, so answers John H. Roy, constable, on oath. A continuance until August 28, 1876, at 9 o’clock A. M. And on August 23,1876, plaintiff appears and claims $12.50 — interest $1.00 — due for 5000 circulars ; defendant not appearing, and on examination of the case judgment by default for plaintiffs for $18.50, with costs of suit. “ Execution was issued August 28, 1876, and returned Sept. 12,1876, ‘ no goods found, so answers John H. Roy.’ “ Thus the case stood until November 19, 1891, when the caption was amended so as to read ‘ Wickersham Printing Co.,’ by virtue of a change of corporate name made by authority of law; and on November 20, 1891, a transcript of the docket of Alderman John M. Amweg, Esq., upon which the case appears, (who is dead and whose docket has passed into the hands of J. K. Barr, Esq., an alderman of the same ward, by due course of law,) was given by said J. K. Barr, Esq., to plaintiff, who had it entered in this court as a judgment on November 21, 1891; and on the same day issued upon it a testatum fi. fa. directed to the sheriff of York county, Pa.; and, by one of the reasons filed by defendant, we are informed that a scire facie was issued bjr the alderman on November 19,1891, and judgment obtained thereon November 26,1891. “On November 27,1891, the above rule was granted. The summons was issued by a proper officer, the amount was under $100 on an account, it was served on the defendant properly by a constable, and proper return made, so that the magistrate had full jurisdiction in the matter. “ The defendant does not allege, in any of the reasons he has filed, that he was not aware and did not know that judgment in the above case was entered against him at the time it was so granted, and at all times since; and that an execution had been issued upon it, upon which the return of the constable was nulla bona. He has lain idly by for fifteen years, until the alderman by whom the judgment was entered has died, and his docket passed into the hands of another, and until, if this judgment be declared invalid, the statute of limitations will be a bar to plaintiff’s claim. “ Now, while the judgment may have been in some respects defective, fatally defective, and might have been set aside, if proper diligence had been used, and an appeal taken or writ of certiorari issued within the time prescribed by law, the defendant has, by his great laches, deprived us of the power of setting it aside or striking it from the record. The rule must, therefore, be discharged and stay removed. Rule discharged and stay removed.” Error assigned was order as above. McKinney v. Brown, 130 Pa. 365; Pantell v. Dickey, 123 Pa. 431; Fowler v. Eddy, 110 Pa. 117. Boyer v. Kimber, 2 Miles, 393; Pantell v. Dickey, 123 Pa. 431; Lacock v. White, 19 Pa. 495; Stedman v. Bradford, 3 Phila. 258; Wasser v. Brown, 1 Kulp, 341; Smith & Bro. v. Snyder, 6 Lancaster L. R. 321.
157 Pa. 417Neely v. Bair's (1893)Verdict and judgment for defendant
Appeal, No. 10, Jan. T., 1893, by plaintiff, John Neely, from judgment of C. P. York Co., August T., 1890, No. 56, on verdict for defendant, Samuel M. Fulton, executor of John Bair, deceased. Assumpsit for price of personal property sold to plaintiff’s decedent. Before Bittenger, J. The defendant, John Bair, died after the trial of the case. On July 12, 1892, his executor, Samuel M. Fulton, became a party of record. Plaintiff’s statement set forth the articles sold and the aggregate amount. Pleas, non assumpsit, payment, set-off and the statute of limitations. Defendant also filed an affidavit of defence setting up a contract that a debt due defendant by plaintiff’s decedent was to be set off against the amount due by defendant. A rule of court provided for special notice of any defence which theretofore might have been specially pleaded, such notice to “contain a specific averment of facts intended to be offered in evidence sufficient to constitute a good legal or equitable defence; and, in default of such notice, the defence shall be confined to matters strictly admissible under the pleas filed.” The notice of special matter was as follows : “ In compliance with your request of Nov. 17, 1890, calling upon us to furnish you with a specification of the matters and facts proposed to be given in evidence under the pleas of payment and set-off in the above case, we reply that at the trial of said case we propose to prove' that at the time of the death of Thomas Neely, late of Lower Chanceford township, in said county of York, (of whose estate the said John Neely, the plaintiff in this suit, is one of the administrators,) to wit: on May 30, 1884, the said Thomas Neely was indebted to the said John Bair, the defendant in this suit, in his individual right. “ That after the death of said Thomas Neely the black horse, top wagon or buggy, buggy tongue and set of harness mentioned in the plaintiff’s statement filed in this case, being part of the estate of the said Thomas Neely, came into the possession of the administrators of the said decedent. “ That after the death of the said Thomas Neely, to wit: on or about June 26, 1884, the said John Neely, the plaintiff in this case, as one of the administrators of the said Thomas Neely, sold to this defendant the said black horse, buggy, buggy tongue and set of harness mentioned in said plaintiff’s statement, for the respective prices therein set forth, upon the clear, distinct and express contract and agreement made and entered into by and between the said John Neely as one of said administrators, and the defendant, at and before the time of said sale, that the purchase money for said black horse, buggy, buggy tongue and set of harness mentioned in said plsfintiff’s statement, and amounting in the aggregate to five hundred and eighty dollars, should be appropriated and applied to the full payment, satisfaction and extinguishment of this said defendant’s said individual account against the said Thomas Neely, and that this defendant should pay to the said John Neely, as one of said administrators, the difference between his said individual account and the amount of the purchase money for said black horse, buggy, buggy tongue and set of harness, which said difference was ascertained to be sixty-nine dollars and seventy-four cents and was paid by this defendant to the said John Neely, as one of said administrators, before the time of the bringing of this suit, and that this defendant would not have purchased the above mentioned property from the said John Neely as one of said administrators, upon any other terms, conditions or considerations than that the price thereof, as above set forth, should and would be applied to the payment, satisfaction and extinguishment of the said defendant’s individual claim or account against the said Thomas Neely. “ That when this said defendant received from the said John Neely, as one of said administrators, the said black horse, buggy, buggy tongue and set of harness, he entered a credit on his said individual claim or account against the said Thomas Neely for the said sum at which he had purchased the said above-mentioned property, to wit: the sum of five hundred and eighty dollars, whereby he fully satisfied and extinguished his said individual account or claim against the said Thomas Neely, deceased, and left this defendant in debt to the said John Neely as one of said administrators, in the sum of sixty-nine dollars ■and seventy-four cents, which said last-mentioned debt or sum this defendant paid to the said John Neely, as one of said administrators, before the bringing of this suit.” Plaintiff on the trial offered in evidence his statement, and the affidavit of defence, admitting the receipt of the goods, etc., and 'rested. Defendant then offered to prove, by his own testimony, the contract with plaintiff, that the debt due by plaintiff’s decedent should be set off against the amount due by defendant, that plaintiff went over the account, and that the contract was executed, defendant paying the balance due. Defendant also offered in evidence the' check used to pay the balance; also the items of the book account showing the claim of defendant against plaintiff’s decedent, used and examined by plaintiff in the settlement. Also the record of proceedings before an auditor, distributing plaintiff’s decedent’s estate, with the notes of testimony. A witness was offered to testify that plaintiff was present before the auditor and admitted that defendant’s account was correct. All this evidence was objected to as not admissible under the general pleas or under the notice of special matter. Received and exceptions noted. [1 — 13] Plaintiff proposed to ask his witnesses in rebuttal whether or not, in a conversation between plaintiff and defendant, it was stated or anything was said about or to the effect that the price of the property was to be credited upon an account of plaintiff’s decedent, for the purpose of contradicting defendant. Objected to as leading, objection sustained and exception. [14-16] The court charged in part as follows: “ [You will consider and determine, from all the evidence, whether or not it was agreed by the plaintiff and defendant, when the sale of the goods was made, that they should be paid for at the price agreed upon by crediting said price on the indebtedness of Thomas Neely to the defendant, whether or not there was an indebtedness on the part of Thomas Neely to the defendant at the time of Thomas Neely’s death, in May, 1884, which was recognized and accepted by the plaintiff; whether or not the parties to this suit afterwards went over the defendant’s books, and whether or not the plaintiff admitted the correctness of any such claim of indebtedness by Thomas Neely, and whether or not they settled on July 20, 1889, and included in said settlement the $580 now sued for in this action. The record evidence of the auditor’s report and evidence of distribution and decree of distribution, together with the accounts and the testimony of the witnesses in connection therewith, show that the plaintiff, in his administration account, accounted for the $580, the price of the goods, and that the same was distributed with the balance on the account among the creditors of Thomas Neely, deceased, before the commencement of this suit. The estate was insolvent and was distributed pro rata among the creditors. The defendant’s account, made out by him, was handed to the auditor by the plaintiff. It shows a balance due to the decedent’s estate of $69.74, which was deducted from another account, claimed by John Bair & Son, of which firm John Bair, the defendant, was a member. The defendant was awarded nothing on his claim. This is a contest entirely between the plaintiff and the defendant, and one or the other must lose this money in the event of either of their respective claims and contentions being allowed by your verdict. If you are satisfied, from the evidence, that Thomas Neely, at his death, was indebted to the defendant, as claimed by him; that the plaintiff, John Neely, recognized as valid such indebtedness and sold the horse, buggy, etc., to the defendant for the said sum of $580, and agreed that such price should be credited on Thomas Neely’s indebtedness to the defendant, and that such credit was given upon the delivery of the goods; that the parties afterwards settled all their claims, including in said settlement the said sum of $580, and that this balance, for which it was claimed the defendant gave his obligation to the plaintiff, was afterwards paid, then your verdict should be for the defendant. “ I instruct you, as a matter of law, that while the plaintiff, as administrator of Thomas Neely, deceased, could not make a contract, such as was asserted here by the defendant, to affect the creditors of the decedent, he would be bound by such a contract himself if the parties executed and acted upon it. If there was an indebtedness by Thomas Neely to the defendant, which was recognized and admitted by the plaintiff, as his administrator, and the parties made the contract as claimed by the defendant, to wit: that the price of said goods should be credited upon such indebtedness, and the alleged contract was executed by the defendant, entering the stipulated credit on Thomas Neely’s indebtedness to him and by including it in the final settlement or other acts in this case, then it is binding on each of them. The transaction took place within a year from the death of Thomas Neely, and if you should be satisfied, from the evidence, that the contract was that claimed by the defendant, and it was executed by delivery of the goods under it — it was a voluntary payment by the plaintiff, and in that event he cannot recover the money in this action. On the other hand, if you are satisfied from the evidence that the contract for the sale of these goods was as testified to’ by the plaintiff, John Neely, that Thomas Neely at his death was not indebted to the defendant, or that the plaintiff did not acknowledge or recognize such indebtedness, that these goods were not settled for in 1889, as claimed bjr the defendant, but were excluded from that settlement as testified to by the plaintiff, and that the said price, or part thereof, is still due and unpaid, then your verdict should be for the plaintiff for the amount of said balance unpaid and interest from the date of sale and delivery of the goods. You will carefully consider all the testimony in this case, all the witnesses, and the papers and records admitted by the court, and render such verdict as in your judgment the preponderance of the evidence shall warrant.”] [17] Plaintiff’s points were as follows : “1. An administrator has no power to agree that the amount of a purchase of his decedent’s goods from him shall be credited on a debt due from the decedent to such purchaser; and he cannot be compelled to adhere to such an agreement, the estate being insolvent. Answer: We cannot affirm this point as written. An administrator has not the power to make such an agreement to affect the right of creditors of a decedent. If he make such an agreement and execute it by the delivery of the goods it is binding upon the administrator.” [18] “ 2. The defence set up in this case is: That plaintiff agreed that the price of the goods sold defendant should be paid for by a credit on the account claimed by defendant against plaintiff’s decedent. This was either, first, an agreement to bind the estate (admitted and proved to be insolvent) in such manner as to take the assets out of the course of distribution provided by law; or, second, it was an assumption by the plaintiff personally of a portion of his decedent’s indebtedness to the defendant. In neither view is this defence admissible. As administrator, plaintiff had no power to make such an agreement. He cannot be held to it personally, because there was no valid consideration to support such a promise; nor was there any memorandum of the contract in writing signed by him as is required by the statute of frauds. Answer: This point as written cannot be affirmed. Its statement of the facts of the defence cannot be affirmed. If the agreement mentioned in the point was made and executed, it is binding upon the parties to it, but could not affect the creditors of the decedent.” [19] “ 3. The defence attempted to be set up in this case was an equitable one that before the procedure act of 1887, under the law and the rules of court, might have been especially pleaded or given in evidence under equitable pleas; and under the rules of court adopted May 24, 1887, could only be admitted at the trial under the notice of special matter. Therefore all of the evidence of facts not mentioned in the notice of special matter was inadmissible and must be disregarded by the jury. Particularly the jury must disregard all testimony in regard to the alleged admissions by the plaintiff of the correctness of the account of Bair v. Thomas Neely, and of the agreement to give the goods on the account and also all testimony in regard to what was done and said before Levi Maish, the auditor.” Refused. [20] “ 4. There being no legal evidence in this case that John Bair had any account or claim that was valid or legally enforceable against Thomas Neely at the time of his death or at the time of the sale of these goods, all evidence of dealings or negotiations based thereon was irrelevant and immaterial, and must be disregarded by the jury. Answer: This point is not correct. It cannot be affirmed with the statement of facts therein contained.” [21] “ 5. Defendant’s admission shows that at the time of the death of Thomas Neely, he and the defendant were partners in the whiskey business and other matters which he has not explained; and he has further admitted that some of the items of the account produced by him were partnership transactions. In the face of these admissions, defendant could not maintain an action against Thomas Neely or his administrator, nor can he interpose his accounts as a set-off or defence to an action by them, without showing affirmatively a settlement of the partnership accounts, a balance struck and a promise to pay. Answer : This point cannot be affirmed by the court as written, and is refused.” [22] “ 6. All of the items of the account attempted to be set up as a defence by the defendant are barred by the statute of limitations and were at the time of the bringing of this suit, and therefore are inadmissible as a defence; and no recognition of their correctness by the plaintiff, if now repudiated by him, can remove the bar of the statute. This account of defendant cannot now, in the face of plaintiff’s objection, be admitted or considered as a set-off or a defence to the plaintiff’s claim. Answer: This point is not correct, under the evidence in the case.” [28] “ 7. Under the plea of payment nothing can be proven, except the specific liquidation of a debt due by the party pleading it to another. If therefore the chattels claimed for in plaintiff’s statements were sold by him to defendant under the agreement alleged by defendant that they were to be credited on defendant’s account against plaintiff’s intestate, these facts are not evidence under the plea of payment. Answer: This point is not correct, as written; under the plea of payment in this case with the notice of special matter filed under the rule of court, the facts mentioned in the point are evidence under the plea of payment and non assumpsit.” [24] “ 8. The defendant in this case upon all the evidence has failed to establish any legal defence to the plaintiff’s claim, and •the verdict of the jury must be for the plaintiff.” Refused. [25] “ 9. If the jury believe from the evidence that the plaintiff did agree with defendant that the price of the property sued for should be credited on defendant’s account against Thomas Neely, then such agreement was not binding upon plaintiff and was revocable by him, and if the jury further believe that prior to the distribution of his intestate’s estate plaintiff repudiated such contract and gave defendant notice to present his claim to the auditor, such credit is no defence, and what plaintiff did in reference to defendant’s account before the auditor does not estop him from recovery in this suit. Answer: This point is correct if the jury believe from the evidence that the agreement made as stated was not executed by the parties.” [26] Errors assigned were (1-16) rulings on evidence; (17-26) instructions ; quoting instructions, and bills of exception, but not evidence. Upon the authority of Stephens v. Cotterell, 99 Pa. 192; James’s Ap., 89 Pa. 57, and Fritz v. Thomas, 1 Whart. 65, it was asserted that an administrator has no power to agree that the amount of a purchase of his decedent’s goods from him shall be credited on a debt due from decedent to the purchaser; and cannot be compelled to adhere to such an agreement, if made. It is the general policy of the law, rather than regard for any particular creditors, that absolutely deprives an administrator of the capacity to make such a contract as was offered and admitted here; and, if he does attempt to make it, he cannot be held to it. If claims against decedent’s estate can be established, simply by proving that book entries have been exhibited to the administrator ; then would such trusts be in more peril than has ever heretofore been supposed: Fritz v. Thomas, 1 Whart. 71. A creditor by receiving a part of his claim does not thereby surrender his right to collect the balance, no matter what his debtor may assert about full satisfaction. To constitute an estoppel in pais at least three ingredients must be affirmatively shown : (1) Misrepresentation, or willful silence by one having knowledge of the fact. (2) That the actor having no means of information was by the conduct of the other induced to do what otherwise he would not have done. (8) That injury would ensue from a permission to allege the truth: Com. v. Moltz, 10 Pa. 527 ; Wight’s Ap., 99 Pa. 425; Hill v. Epley, 31 Pa. 331. None of these elements, were shown or offered to be shown in this case. Plaintiff, for the purpose of contradicting defendant, had a right to ask his witnesses whether anything was said by plaintiff or defendant that the price of the property was to be credited on defendant’s account against Thomas Neely : 2 Phillips’ Ev., p. 895; Wilson v. McCullough, 23 Pa. 440. Payment is a matter of agreement. Whatever the parties intend for payment is payment. The law esteems that payment which the parties have treated , as a payment: Heath v. Page, 48 Pa. 130. The contract was fully executed by the parties and the subsequent discovery that the estate was insolvent cannot clothe plaintiff with the right to recover back this payment, especially if plaintiff had told defendant the estate was solvent at the time of these transactions, as the latter testified he did: Carson v. McFarland, 2 Rawle, 118; Hinkle v. Eichelberger, 2 Pa. 483; Heppard v. Baylard, 1 Whart. 223 ; Ege v. Koontz, 3 Pa. 109; Boas v. Updegrove, 5 Pa. 516; During, King & Miller’s Ap., 13 Pa. 224; Montgomery’s Ap., 92 Pa. 202; Hulme v. Miller126 Pa. 281. All the testimony offered, the admission of which is assigned for error, was offered under defendant’s pleas of non assumpsit, and payment, and was properly admitted whether set out in the notice of special matter or nor: Heck v. Shener, 4 S. & R. 249; Gaw v. Wolcott, 10 Pa. 43; Beals v. See, 10 Pa. 59; Stansbury v. Marks, 4 Dallas, 130 ; Lyon v. Marclay, 1 Watts, 271; Falconer v. Smith, 18 Pa. 130; Scott v. Kittanning Coal Co., 89 Pa. 231; Van Storch v. Griffin, 77 Pa. 504; Dawson v. Tibbs, 4 Yeates, 349; Troxell v. Lehigh Crane Iron Co., 42 Pa. 515; Moyer’s Admrs. v. Fisher, 24 Pa. 515; Hobson v. Croft, 9 Pa. 363; Smaltz v. Ryan, 112 Pa. 423. There was no promise on the part of plaintiff to assume the debt of his decedent.
157 Pa. 430Malone v. Phila. & Reading R. R. (1893)Defendant appealed
Appeal, No. 102, Jan. T., 1893, by defendant, from judgment of G. P. Lancaster Co., June T., 1890, No. 19, on verdict for plaintiffs, R. A. Malone & Sons. Assumpsit for balance alleged to be due under contract to enlarge tunnel and build bridge. Before McMullen, J. At the trial it appeared that, by agreement in writing, dated May 21, 1889, plaintiffs contracted to do all the work in the enlargement of the Manayunk and Phcenixville tunnels, with the approaches to the same, together with a stone arch bridge across the Schuylkill river at the north end of the Phcenixville tunnel. Plaintiffs introduced evidence which tended to show that after the work was begun in the Phoenixville tunnel the plan of lowering the tunnel at the bottom, as originally contemplated and provided for in the contract, was abandoned, and plaintiffs were directed by defendant to remove from the top of the tunnel throughout its entire length about a foot of rock, amounting to over seventeen hundred cubic yards of rock. The evidence tended to show that this was much more difficult work than the removal of the rock ballast and loose material from the bottom, and imposed upon the contractors great additional cost and expense. [Plaintiff offered in evidence the written agreement of May 21, 1889. By Mr. Brown : We offer it simply for the purpose of showing how we began the work, and only for that purpose; because it is not our agreement. We do not offer it as evidence of the agreement under which we did the work, but as evidence of the agreement under which we began the work. By the Court: You may offer the agreement in evidence as the agreement under which you began the work, and if there were any alterations made afterwards, you can prove that specially at the proper time. We will go on with the evidence. The original agreement is in evidence. By Mr. Brown : For the purpose for which we offered it. By Mr. North: The written agreement was objected to, because a copy of it was not attached to the plaintiffs’ statement filed in the case. Objection overruled and exception.] [1] When R,. A. Malone was on the stand he was asked': “ Q. Did you or not lower the tracks according to that plan ? ” Objected to by defendant’s counsel. Objection overruled and exception. “ A. I did not.” [2] Thirty-two other offers of evidence were admitted or rejected by the court, under objection and exception. The assignments of error relating to them referred to the appendix to the paper book by page where the evidence was to be found, and quoted the answers to the questions admitted, but did not disclose the purpose of the offers, or the reason for their rejection or admission, or the connection in which the offers were made. [8-34] The court charged in part as follows : “ [It may be further remarked, that, although the company finished the work in March, 1890, no estimate appears to have been furnished to the plaintiffs until July of that year, until nearly two months after the plaintiffs had brought their suit, when a type-written document purporting to be an award of the chief engineer was served on the plaintiffs, accompanied by an estimate and statement of moneys expended by the company in finishing the work. It was not signed by any one, and, therefore, was not binding upon either party, as no suit could have been maintained upon it by the plaintiffs. This clause in the agreement is, therefore, no bar to this suit, and the plaintiffs may recover such amount as they have shown to you they are honestly entitled to.] [35] .... “ [The contract provides also that at the approaches to the tunnels the rock cuts must be excavated to such widths as to allow of shifting and widening of tracks, as per accompanying plans ; and the plans show by red lines how the tracks were to be shifted, as well as the space intervening between the rails before alterations, and the foot of the embankment; they do not show the width of the excavation required to be made nor the depth of the cuts, and there is nothing to show how much space the company required to be left between the rails after. shifting of tracks and the foot of the slope.] [38] .... “ [But the plaintiffs claim that at the time they made their proposal, there was exhibited to them a document called a ‘ quantity sheet,’ showing the quantities of material to be taken out, and that this paper showed the amount of excavation from the approaches to be two hundred cubic yards. Mr. R. A. Malone testified that this quantity sheet was exhibited to him in the chief engineer’s office; that it showed two hundred cubic yards, and that he made a memorandum of it, and he was left under the impression that this was the quantity to be removed. Mr. Nichols, the chief engineer, testifies that there was a quantity sheet in the assistant chief engineer’s office, where the plans and everything pertaining to the work was; that this quantity sheet showed four hundred and fifty cubic 3'ards; that he does not know whether any of the contractors who came to bid on the work saw it. • He also says he did tell Mr. Malone that the quantities given by them, the defendants, were only approximate, and he must not be governed by it but must rely on his own judgment from an inspection of the work; that the defendant’s approximate estimate was four hundred and fifty yards, but the company would not be bound by that estimate, and he must rely on his own estimate. Now, we say to you that if Mr. Malone was so informed before making his proposal, it w’as notice to him to make further inquiry and examination, and unless the plaintiffs show that upon making such inquiry there was deception practiced on them, they can have no claim for extra compensation. But if he was given to understand that two hundred yards was the quantity, or even four hundred and fifty 3Tards, without being warned that the company would not be bound by those figures, and that he should make bis own examination, and he relied on those figures, and was afterwards compelled to remove sixteen hundred cubic yards, the discrepáis was so great chat it would amount to a fraud on the plaintiffs, and he may recover for the excess such price as he has shown it to be worth. Approxirnate means ‘ near to; ’ and if a contractor, as was testified by Mr. Stevens, could make an approximate calculation from the lines on the draft, an engineer making up a quantity sheet should certainly come closer to the correct figures than seems to have been done in this case.] ” [37] Plaintiffs’ points were among others as follows: “ 2. If the jury believe the evidence of the plaintiffs, the verdict must be for the plaintiffs for the above amount of the extra work on force aeeouut, and in addition thereto for $5,000 for the extra work done on the roof of the tunnel, together with interest thereon from March 30, 1890. Answer: If the jury believe the roof cutting was not to be substituted for the bottom cutting in the contract, then they should find for the plaintiffs so much as the work done on the roof was actually worth.” [38] “ 3. If the jury believe the evidence for the plaintiffs, there must be a verdict for plaintiffs for the above two items, and in addition thereto for $2,000, with interest thereon, for the work done on the approaches to the Phoenixville tunnel. Answer : If the jury believe the plaintiffs’ evidence, they should find for the plaintiffs such amount as the excess of work over the quantity given to Malone was actually worth, that is, on the approaches to the tunnel.” [39] “ 4. If the jury believe the evidence for the plaintiffs, the verdict must be for the plaintiffs for the aggregate amount of the above three items, and, in addition thereto, for $16,997.35, balance due on the contract work of the tunnel, together with interest thereon from the 30th day of March, 1892, to date. Answer: The verdict should be for the first of the above three items, and so much of the second and the third as the jury may find due under instructions already given, together with the balance of the contract price remaining after deducting all payments already received — the $2,000 agreed upon for money and materials,- the $1,225 for canal service, and whatever the company necessarily expended, if anything, in completing the plaintiffs’ work, with interest from March 30, 1890.” [40] Defendant’s points were as follows: “ 1. The only item the plaintiffs may recover in this action is the sum of $3,026.06, with interest, for their force, extra or 10 per cent work, as admitted and agreed upon, being the fourth item in the statement filed in the case by the plaintiff.” Refused. [41] “ 2. As the contract of May 21, 1889, between the plaintiffs and the defendant required the plaintiffs to complete to the satisfaction and acceptance of tile chief engineer of said defendant all the graduation, masonry and such other work as may be required in the enlargement of Mauayunk and Phoanixville tunnels with the approaches to the same, together with the stone arch bridge across the Schuylkill river at north end of Phoenixwille tunnel, and R. A. Malone, one of the plaintiffs, having admitted on the stand, as witness for the plaintiffs, that the plaintiffs did not complete said work to the satisfaction and acceptance of said chief engineer, there can be no recovery in this action by the plaintiffs of any compensation for said work. Answer : We refuse this point, and say that the company having exercised their option of completing the work and charging the cost to plaintiffs, the plaintiffs may recover in this action such balance as may be due to them.” [42] “ 8. As the plaintiffs, by the said contract, were only entitled to a final estimate when all the work embraced in the contract was completed agreeably to the specifications, and in accordance with the directions and to the satisfaction and acceptance of the chief engineer of the defendant, and as they have not done this, they are not entitled to their final estimate and cannot recover for said work in this action. Answer: This point is refused. The company having finished the work and charged the same to plaintiffs, they cannot defeat a recovery for balance due by withholding the final estimate.” [43] “ 4. The plaintiffs cannot recover in this action for any work done by them in the enlargement of the Manayunk and Phoenix-ville tunnels with the approaches to same, together with the stone arch bridge across the Schuylkill river at the north end of the Phcenixville tunnel, as all work so done was provided for by tbe contract, and plaintiffs have no final estimate therefor.” Refused. [44] “ 5. As the plaintiffs and defendant by their contract of May 21, 1889, mutually agreed that the decision of the chief engineer of the defendant shall be final and conclusive in any dispute arising between the parties to said agreement, relative to or touching tbe same, and have waived any right of action, suit or suits, or other remedy in law or otherwise, so that the decision of the said engineer shall, in the nature of an award, be final and conclusive on tbe rights and claims of the parties, the decision of the said engineer in the nature of an award, dated July 16,1889, and given in evidence, is final and conclusive on the rights and claims of the parties to this suit, and prevents a recovery by the plaintiffs in this action, except the sum agreed on upon the trial, for extra or force work. Answer: This we refuse for the reasons already given in our charge.” [45] Verdict and judgment for plaintiffs for $81,302.02. Errors assigned were (1-34) rulings on evidence as above ; (35-45) instructions; quoting bills of exceptions and evidence and instructions. The contract between the parties was in writing; plaintiffs did not declare on a written contract, and as they had not declared on it nor attached a copy of it to their statement, they could not give it in evidence: Act of May 25, 1887, P. L. 271. The engineer’s award was final: Mentz v. Armenia Fire Ins. Co., 79 Pa. 478; Gray v. Wilson, 4 Watts, 39; Leebrick v. Lyter, 3 W. & S. 365 ; Wilson v. Getty, 57 Pa. 266; Boswell’s Ap., 3 Penny. 305; Monongahela Navigation Co. v. Fenlon, 4 W. & S. 205; Faunce v. Burke, 16 Pa. 469 ; Snodgrass v. Gavit, 28 Pa. 221; Lauman v. Young, 31 Pa. 306; Fox v. Hempfield R. R., 14 Leg. Int. 148; North Lebanon R. R. v. McGrann, 33 Pa. 530; McCahan v. Reamey, 33 Pa. 535; Williams v. Danziger, 8 W. N. 21; Irwin v. Shultz, 46 Pa. 74; Reynolds v. Caldwell, 51 Pa. 298. If there was a final estimate, which was erroneous, and the contractors’ covenants were broken, an action at law could not be maintained upon it, but resort must be had to the tribunal appointed by the agreement: O’Reilly v. Kerns, 52 Pa. 214; O’Loughlin v. Jefferson Co., 56 Pa. 62; Backus’s Ap., 58 Pa. 186; Howard v. Allegheny Valley R. R., 69 Pa. 489; Mentz v. Armenia Fire Ins. Co., 79 Pa. 478 ; Quigley v. De Haas, 82 Pa. 267 ; Hartupee v. Pittsburgh, 97 Pa. 108 ; Connor v. Simpson, 104 Pa. 440 ; Hostetter v. Pittsburgh, 107 Pa. 419; Snodgrass v. Gavit, 28 Pa. 221; Rea’s Ap., 13 W. N. 546; Lauman v. Young, 31 Pa. 306; Whart. Ev. §§ 800, 870; Leech v. Caldwell, 5 A. L. R. 280; Robinson-Rea Mfg. Co. v. Mellon, 189 Pa. 257; Fulton v. Peters, 137 Pa. 613; Fayette Co. v. Laing, 127 Pa. 119; Vicary v. Moore, 2 Watts, 451; Carrier v. Dilworth, 59 Pa. 406; McCauley v. Keller, 130 Pa. 53. -The testimony of plain tiffs established clearly that the written contract was modified and materially changed; it then, of course, became a parol contract, and was treated as such by plaintiffs, and the damages claimed are for its breach: Vicary v. Moore, 2 Watts, 457. A prior agreement under seal may be referred to b}r a subsequent parol agreement, and made part of it, so that both shall form but one parol agreement, and assumpsit be maintained: Spangler v. Springer, 22 Pa. 454. The engineer could not say what the agreement ought to be, but simply what it was : Drhew v. Altoona, 121 Pa. 401.
157 Pa. 444Commonwealth v. Warfel (1893)
Constables — Suits against — Aot of March 21, 1772. ' No action can be brought against a constable for anything done in obedience to a warrant issued by a justice of the peace, until demand has been made upon the officer, and the same has been neglected or refused for the space of six days. The conditiou imposed by the act of March 21, 1772, 1 Sm. L. 365, requiring such demand to be made is absolute and imperative, and is precedent to the right of action. Action — Constable—Altering return clay in summons. No action can be brought against a constable for altering the return day in a summons before serving it upon defendant. Such an alteration is entirely a matter between the justice of the peace and the constable.
157 Pa. 454Johnson v. Watson (1893)Verdict for defendant
Appeal, No. 39, July T., 1893, by plaintiff, J. W. Johnson, from judgment of C. P. Lancaster Co., March T., 1888, No. 53, on verdict for defendant, Harriet P. Watson. Replevin for household goods. Before Livingston, P. J. The facts appear by the opinion of the Supreme Court. The case had been on trial on the original pleas but the jury was discharged on account of the sickness of one of their number. When plaintiff was called on his voir dire, he was asked: “ Q. Had this case on a previous occasion been called for trial, and you called and examined as a witness in your own behalf ? ” Objected to because it was not since this special plea and replication were filed. Disallowed, and exception. [1] “ Q. Was or was not the case continued at that time on account of the sickness of a juror? ” Objected to by defendant. Disallowed, and exception. [2] Plaintiff then called J. W. Johnson as a witness in chief. Objected to by defendant as incompetent and disqualified. Disallowed, and exception. [3] Plaiutiff offered in evidence testimony of J.W. Johnson, plaintiff in this suit, as shown by the notes of former trial in this case; which trial commenced Jan. 28, 1890. Objected to by defendant. Disallowed, and exception. [4] J. W. Johnson, plaintiff, now offered as a witness to show the value of the goods mentioned in "the writ of replevin. Objected to, disallowed and exception. [5] Binding instructions were given for defendant. [6] Errors assigned were (1-5) rulings on evidence, (6) instructions ; quoting bills for exceptions and instructions. Patterson v. Clyde, 6 Phila. 391; McBride v. Duncan, 1 Whart. 269; Davis v. Stuard, 11 W. N. 366; Knowles v. Lord, 4 Whart. 504. Knowles v. Lord, 4 Whart. 500; Musser v. Gardner, 66 Pa. 242; Seibert v. McHenry, 6 Watts, 303; Waterman v. Robinson, 5 Mass. 303 ; Mackinley v. McGregor, 3 Whart. 398; Marsh v. Pier, 4 Rawle, 283; Sahms v. Brown, 5 Lancaster L. R. 105.
157 Pa. 457Cake's Estate (1893)
Appeal, No. 98, Jan. T., 1893, by J. A. Cake, from decree of O. C. Northumberland Co., May T., 1891, No. 43, dismissing exceptions to adjudication in estate of J. W. Cake, deceased. Adjudication of administrator’s account. The account was referred to William A. Sober, Esq., as auditor, who found the facts substantially as stated in the opinion of the court below. Decedent died in 1879, and the real estate, the subject of the present contention, was sold by order of court in 1890. Exceptions to the auditor’s report were dismissed by the court in an opinion by Albright, P. J., of the 31st judicial district, specially presiding, which was as follows: “1. Claim of S. P. Wolverton, Esq.: The intestate made his bond and mortgage (the mortgage did not include the lands held by the administrator) of date of July 12,1877, to J. Adam Cake for the payment of $8,000 on July 12, 1882, and which the latter assigned to Mr. Wolverton on April 20, 1882. On a sheriff’s sale of the mortgaged lands $5,385.49 was made and is credited by claimant as of Dec. 1, 1886. The unpaid part of the debt created by the bond, $6,977.17, with interest, is now demanded. Its rejection is the error alleged by the 6th exception. “ The claims of J. Adam Cake are these: “ (1) The sum of $10,535.65 (credited in the account) which is based on and explained by the following acknowledgment and covenant of the intestate: ‘ Whereas my son, J. Adam Cake, made a. bond and mortgage to Jacob Huntzinger, of Potts-ville, for $10,000, and borrowed the money for me. Mortgage dated the 4th of October, A. d. 1874. The mortgage was given as security for the note of J. Adam Cake, indorsed by J. W. Cake and H. L. Cake, which is to be renewed from time to time for five years from October, 1874. Now this is to certify that as the money was borrowed for me and that I received it, and used in my business, I promise to pay it at the end of the five years above mentioned. Witness my hand and seal and keep the said J. Adam Cake harmless. December 25, 1876. “ ‘ J. W. Cake, [seal.] ’ “ That J. Adam Cake paid the debt above referred to, amounting to $7,116.93 (the last part thereof on April 20, 1882), was found by the auditor, and there is now no dispute concerning the fact of payment. Its rejection is complained of by the 1st and 2d exceptions to the auditor’s report. “ (2) The sum of $10,902.35 (credited in part in the account) upon a bond and mortgage made by J. W. Cake, the decedent, to J. Adam Cake on July 10,1877, for the payment of $14,000 on July 10, 1882. The mortgaged premises were sold by the sheriff, and the proceeds, $12,105.68, credited as of Oct. 27,1884. Credit was taken in the account for "$5,000, the whole of $10,902.35 was claimed out of the fund before the auditor. Its disallowance is the subject of the 3d and 4th exceptions. “ (3) Thirteen thousand fifty-eight dollars and ninety-three cents, for which credit was taken in the account and which is alleged to be owing on a bond and mortgage made by J. W. Cake to J. Adam Cake on July 10, 1877, for the payment of $8,000 on July 10,1882. The lands included in this mortgage were sold under this or a prior mortgage, and $1,792.90 credited as of Sept. 3, 1883. The 7th exception in general terms alleges error in not allowing this demand. . . . “ Was the debt represented by the covenant of Dec. 25,1876, or that created by any of the bonds held by J. Adam Cake and Mr. Wolverton a lien upon the land sold, at the time its sale was decreed? Was that land at that time liable in the hands of the heirs for said debts ? If as to none of said claims there was a lien, then the land was not liable, and then the creditors cannot take the proceeds from the heirs. The sale of the land upon the administrator’s petition, the other heirs not having been made parties to the proceeding, cannot prejudice them. That requires no demonstration. “ Other debts were included in the schedule accompanying the petition. One other at least was regarded by the auditor and all concerned to have been a lien. No, party to this controversy suggests that the sale was not valid. All concede its validity by claiming the proceeds thereof. “ ‘ No debts of a decedent except they be secured by mortgage or judgment shall remain a lien on the real estate of such decedent longer than five years after the death of such debtor unless an action for the recovery thereof be commenced and duly prosecuted against his heirs, executors or administrators within the period of five years after his decease, or a copy or particular written statement of a bond, covenant, debt or demand, where the same is not payable within the said period of five years, shall be filed in the office of the prothonotary of the county where the real estate to be charged is situate, and then to be a lien only for the period of five years, after said bond, covenant, debt or demand becomes due : ’ Act February 24, 1834, § 24, P. L. 77. “ A creditor of a decedent can enforce payment out of land by obtaining judgment against the representative and then proceeding by scire facias against the widow, heirs or devisees, and obtaining a judgment de terris : Sec. 34 of same act; Murphy’s Ap., 8 W. & S. 165; Atherton v. Atherton, 2 Pa. 112. “ The covenant of Dec. 25,1876, was enforceable on Oct. 4, 1879; exceptant’s counsel urges that an action accrued only when J. Adam paid the debt on April 20, 1882 — if this were conceded it would not change the situation. The $14,000 bond and that for $8,000 were due on July 10,1882. The bond held by Mr. Wolverton was payable on July 12, 1882. The intestate died on June 1,1879. There was no copy or statement of any of the four demands just referred to filed in the prothono■tary’s office, and no action was brought upon the said covenant, nor upon any one of said three bonds. The decree of sale was made and the land sold in 1890. “ In Hope v. Marshall, 96 Pa. 395, it was held that where an intestate had died on June 12,1867, and suit on a debt owing by him was brought in 1871, judgment obtained in 1873 and scire facias on said judgment against the widow and heirs issued on Dec. 26, 1877, a judgment against the widow and heirs could not be sustained; that the lien of the decedent’s debts against the lands of the widow and heirs was barred by lapse of time, the scire facias having issued more than ten years after the decedent debtor’s death. “ Phillips v. Railroad Company, 107 Pa. 460, decides that where the intestate debtor died on April 14,1874, and suit was brought by the creditor against the administrator on Dec. 20, 1875, judgment recovered on Jan. 2, 1883, scire facias against the heirs issued on Jan. 10,1883, and judgment therein entered on March 28, 1884, the judgment was binding on the heirs, the action against the administrator having been duly prosecuted within the meaning of said act of 1834, the judgment in the action against the administrator having been obtained within five years after the expiration of the statutory lien of five years after death, and the suit brought during the first period of five years. Proceedings to charge the real estate of a decedent íd the hands of his widow and heirs must be brought within ten years from the decedent’s death: Allen v. Krips, 119 Pa. 1; Allen v. Krips, 125 Pa. 504. “ Though the administrator advance his own funds in payment of debts due by decedent within five years from his death, it will not prolong beyond that time the existence of the lien: Demmy’s Ap., 43 Pa. 155. “ The 24th section of the act of February 24, 1834, did not create a lien; it limits the liens which prior to legislation on this subject were indefinite; the act of 1834, as well as the prior act of 1797, is an act of limitation and repose (citing Kerper v. Hoch, 1 Watts, 9, and Church v. Watson, 50 Pa. 518 ; Justice Paxson in Colwell v. Rockwell, 100 Pa. 138. “ The auditor rightly refused to distribute any of the proceeds of the land upon said debts because they had ceased to be liens on the land before its sale was decreed. “ Exceptant’s counsel contends that the paper of December 26, 1876, was not evidence of a debt of the decedent, and therefore is not within the meaning of the act of 1834; that said act applies only to debts existing at the time of the decedent’s death; that said undertaking is in the nature of a warranty; that only when J. Adam paid Huntzinger did a right of action accrue. ‘‘ The reply to that contention is that the question presented is whether or not the claim was a lien on the land at the time the sale was decreed, not whether there could be a recovery in an action against the administrator or a right to payment out of personal effects of the intestate. “ If the undertaking was not a debt created by the decedent, then it was no debt at all; if it was no lien existing at the time of the intestate’s decease, then it never became one. A further answer is furnished by the case of Hunt’s Ap., 105 Pa. 128. There the decedent had entered into a covenant guaranteeing the payment of interest upon a mortgage until the mortgaged premises should be so improved as to constitute adequate security. It was held that such covenant survived the decedent and could be enforced against his representative so as to recover interest accruing after decedent’s death; also that the lien of such covenant could only be continued against the real estate of the decedent by bringing suit within five years or by filing a copy of the covenant within five years. “ As to the rejected claims which were secured by mortgages, it was argued that they are within the exception of said act of 1884; that being debts secured by mortgages, they were an indefinite lien on the land not embraced in the mortgages; that the purpose of the act was that the heirs should have notice of debts; that the mortgages and the writs of scire facias thereon furnished all the notice of the debts that said statute contem plates. On this point Rushton v. Lippincott, 119 Pa. 12, is cited. Shannon v. Newton, 132 Pa. 375, is also referred to as authority for the principle that an heir is a mere volunteer and takes what is left after his ancestor’s debts are paid, that he is not a terre tenant, and the principle is invoked in support of said claims. “Shannon v. Newton recognized what had been decided long before, that judgment against a decedent in his lifetime remains a lien against him, his heirs and devisees, without revival within five years from its entry; and it decides that the Act of June 1, 1887, P. L. 289, relative to the liens of judgments does not affect said rule. But how can that affect the exceptant’s case? “ By judgment in that reference is of course meant a personal judgment, the decision of the law that the defendant is indebted to the plaintiff in a sum specified. Here there was «no judgment in intestate’s lifetime, not even judgment under a scire facias on the mortgages ; if there had been the latter it would not have benefited the exceptants, for plainly the judgment meant by the statute is not a judgment under a scire facias on a mortgage. “All that is decided in Rushton v. Lippincott, that could possibly be thought to affect this case, is that an action of covenant upon a ground rent deed where it is not sought to enforce the judgment against real estate other than that bound for the rent, is not within the provision of said act of 1884 requiring the widow and heirs to.be made parties thereto. “Notice or knowledge by the heir of his ancestor’s death does not make such debt a lien if otherwise it would have been none. No statute or decision declares that it does. All the debts of the ancestor known or unknown to the heir or representative of the estate are liens. The act of 1834 limits the duration thereof. “ In Bindley’s Ap., 69 Pa. 295, land was sold within five years of the decedent’s death and a creditor presented his claim before an auditor distributing the proceeds, and received a pro rata dividend. More than five years after the death other land was sold and said creditor sought payment out of the fund of the residue of his demand. Upon objection that his debt had ceased to be a lien, it was urged in his behalf that the claim Defore the auditor was an action commenced — that the act of 1834 does not speak of a common law action, and that he had given notice of his debt against the estate in a mode pointed out and authorized by law. In deciding against the claimant and distributing the fund among the heirs the court said that the intention of the 24th section of the act of 1834 was to promote the security and repose of titles in the hands of the heirs and devisees as well as purchasers from them, and it would imperil said objects to give the section so broad a construction as contended for, and that the words of the act in their technical sense were to be adhered to. “ That said act of 1834 means that a debt secured by a mortgage of one tract is by reason of such mortgage a lien on all the other real estate of a decedent indefinitely, is so plainly not the case that a discussion is scarcely necessary. “None of these mortgages contain an express covenant to pay — therefore an action of debt thereon could not have been maintained: Scott v. Fields, 7 Watts, 360; Fidelity Co. v. Miller, 89 Pa. 26. The only obligations or evidences of these debts are the bonds. “ The instruments evidencing these rejected claims are specialties and are not barred by the statutes of limitation. If there is personal estate of the intestate the claimants have valid demands as to it. But they are not entitled to this fund because the lien on the laud of the debts had expired before it was ordered to be sold.” Errors assigned were (1-6) dismissal of above mentioned exceptions, quoting them. Com. v. Cochran, 146 Pa. 223; Stewart v. Montgomery, 23 Pa. 410; McBride’s Ap., 72 Pa. 480; Rushton. v. Lippincott, 119 Pa. 12; Shannon v. Newton, 182 Pa. 375 ; Woods v. Irvin, 141 Pa. 278; Bucknor’s Est., 18 W. N. C. 118; Newman v. Metzgar, 1 Pearson, 273 ; Myers v. Kingston Coal Co., 126 Pa. 582 ; Wetherald v. Van Stavoren, 125 Pa. 535.
157 Pa. 465Pensyl's Estate (1893)The court, in an opinion by Mayer, P
Appeal, No. 161, Jan. T. 1893, by Samuel Pensyl, from decree of O. C. Northumberland Co., Feb. T., 1891, No. 13, refusing an issue devisavit vel non to try the validity of the will of Mary Pensyl, deceased. Petition for issue devisavit vel non. From the record it appeared that Mary Pensyl died on or about Nov. 8, 1890, leaving to survive her, four sons, William Pensyl, Adam Pensyl, Samuel Pensyl and Francis Pensyl.
157 Pa. 469Haupt v. Haupt (1893)Verdict and judgment for plaintiffs
Appeal, No. 384, Jan. T., 1893, by defendants, Frederick L. Haupt et al., from judgment of C. P. Northumberland Co., May T., 1889, No. 309, on verdict for plaintiff, Henry Haupt. Ejectment. Before Metzger, P. J. At the trial, it appeared that, in an action brought by defendants against plaintiff, defendants had recovered a verdict for the same land, and that a judgment upon this verdict had been sustained by the Supreme Court.
157 Pa. 473Martin v. Kline (1893)Verdict and judgment for defendants
Appeal, No. 147, Jan. T., 1893, by plaintiff, Adam H. Martin, for use of Dr. J. F. Thompson, from judgment of C. P. Perry Co., Aug. T., 1889, No. 168, on verdict for defendants, John L. Kline and George L. Kline. Issue to determine validity of judgment. Before Lyons, P. J. The note, by order of court, was to stand for plaintiff’s statement. Defendant pleaded payment and payment with leave.
157 Pa. 484Brothers v. Mitchell (1893)Verdict for the plaintiffs for “the lands described in…
Appeal, No. 13, July T., 1893, by defendants, Louis Mitchell et al., trustees, from judgment of C. P. Perry Co., Jan. T., 1892, No. 36, on verdict for plaintiffs, James S. Brothers and wife. Ejectment. At the trial it appeared that plaintiffs by mistake had included in the praecipe a graveyard to which they made no claim. They filed an amended prsecipe, but in the description by courses and distances failed to exclude the graveyard. Both plaintiffs and defendants claimed through Joseph Mitchell, who was dead at the time suit was brought. Plaintiffs claimed under a deed, executed and delivered Sept. 22, 1886, and recorded Sept. 27, 1886. Defendants claimed under a deed executed and delivered May 7,1886, but not recorded until April 6, 1889. The deed of May 7, 1886, granted the premises in fee to defendants, as “ trustees for the heirs of George Mitchell, Sr., (who died in 1817, and is buried in the ‘ Mitchell graveyard,’) for a period of ten years, to begin with the date of this deed, their places to be filled in case of expiration of the ten years, or in case of death or removal, from some of the other members of the Mitchell family, by a vote of the majority of the whole members of the Mitchell family cast by ballot, ... to be used as a public burying ground, free to all, subject to such conditions as the trustees shall adopt in order to keep up the fences and otherwise beautify and ornament the said burying ground,” concluding with clause of general warranty. Defendants’ counsel offered Louis Mitchell, one of the defendants, who was one of the grantees in the deed of May 7, 1886, by which Joseph Mitchell (now deceased) conveyed the locus in quo to Geo. Mitchell, Louis Mitchell, Charles Mitchell and Sarah Mitchell, as trustees for the heirs of George Mitchell, Sr., (also deceased in 1817,) and proposed to prove by him that, prior to the making of this deed a few days, the grantor, Joseph Mitchell, Silas Wright and others, went upon the ground, surveyed and drove stakes as monuments around the locus in quo, so as to increase the ancient graveyard by the addition of a half acre or more of land thereto. That these monuments remained upon the ground, and were there at the time of the survey (so made in April, 1886) by Silas Wright on the same day that Joseph Mitchell conveyed the entire tract by his deed dated Sept. 22, 1886, to the plaintiff in this action. And to further prove by the witness, that the addition so made to the said graveyard was known to the plaintiffs, as well as the execution of the deed of May 7, 1886, at the time they bargained for the tract with Joseph Mitchell and prior to the deed to them from him. To be followed by proof that at the very time of the making of the bargain between Joseph and the plaintiffs for the land, it was made known to both the vendees in said deed, and plaintiffs in this action, that there had been a conveyance of the locus in quo on the 7th day of May, 1886, to the aforesaid trustees — the object being to show that the plaintiffs took the title to the entire tract, with knowledge of the previous conveyance of the locus in quo, thus rendering the recording of the deed immaterial and non-important. Plaintiffs’ counsel objected: (1) That the offer does not propose to show that the alleged monuments upon the ground were brought to the notice of both or either of the vendees, in the deed of Sept. 22, 1886, prior to its execution and delivery. (2) The witness is incompetent to testify, he being a party to the record and the grantor being dead. Objection sustained and exception. [1] The court charged in part as follows : “We say to you that the law is such that it will not affect the title given in the deed to Brothers and wife unless they had notice and knew at the time they purchased from Joseph Mitchell and wife, who had received their deed on the 22d of Sept., 1886, that it had been executed and delivered and conveyed the land now in dispute. This is the question upon which your verdict in this case depends. You have heard the witnesses on the stand who testity as to that; they are Laura E. Mitchell, Taylor Mitchell and Louis Mitchell. Laura E. Mitchell testified, as you recollect, that she was present when her father, Joseph Mitchell, and Mr. James S. Brothers were bargaining for this land, sitting upon the porch at the homestead, and as to what was said by Joseph Mitchell to James S. Brothers about the g'raveyard. If you believe this testimony then Mr. Brothers had notice of the deed of May 7,1886. His wife was not present at that time. This was some days prior to the date of the deed from Joseph Mitchell and wife to the plaintiffs. I also call your attention to the testimony of Taylor Mitchell and Louis Mitchell, who testified as to the admissions of James S. Brothers to them in regard to his knowledge of this deed of conveyance. I will not repeat the testimony of either of these witnesses. You will recollect it for yourselves. It has been discussed in your hearing by the learned counsel on the one side and the other, and if this testimony satisfies you that James S. Brothers and his wife had knowledge that Joseph Mitchell and wife had conveyed this graveyard as it now exists to the defendants then the plaintiffs are not entitled to recover. But unless you find from the evidence in the case, and you will recollect all the evidence on the one side and the other, that no notice was given to James S. Brothers and wife prior to the time that they purchased this tract of land and accepted the deed of September 22, 1886, then the title to all the lands claimed by the plaintiffs in this action vested in them, notwithstanding a prior deed had been made to these defendants, because if a purchaser of land who does not enter into possession of it fails to record his deed within six months the law says it shall not defeat the right of a subsequent purchaser who takes his title without notice. Here is the point in this case and where it hinges, and accordingly as you find the facts in regard to that your verdict will be. If you find that no notice was given to James S. Brothers and his wife that more land than they admit belongs to the defendants had been conveyed to them as trustees, then your verdict should be for the plaintiffs. But if you find that they did know of this deed of conveyance and knew that the land from the pale fence up to the public road had been conveyed to these defendants as testified to by Laura E. Mitchell and corroborated by the testimony of Taylor Mitchell and Louis Mitchell as to the admissions of James S. Brothers, then your verdict should be for the defendants.” Defendants’ point was as follows : “ 1. That a purchaser of land is presumed to have examined the tract before he purchases, and he is therefore chargeable with anything which a reasonable examination would have disclosed, and that if these stakes around the addition to the old graveyard were visible and readily discerned, then it was the duty of Brothers and wife to have inquired about their meaning, and if this inquiry would have led to a knowledge of the previous deed of May 7, 1886, to the trustees, then they are to be treated as having knowledge of the said previous conveyance to the said trustees.” Refused. [2] Frrors assigned were (1) ruling on evidence; (2) instructions; quoting bill of exception and instructions; and (3) to the form of the verdict, as stated in the opinion of the Supreme Court. Patterson v. Arthurs, 9 Watts, 152; Wilson v. Cochran, 48 Pa. 111; Smith v. Jenks, 10 S. & R. 153; Stewart v. Speer, 5 Watts, 79; Harrisburg v. Crangle, 3 W. & S. 460; Martin v. Martin, 17 S. & R. 431; Allen v. Flock, 2 P. & W. 159; Tyson v. Passmore, 7 Pa. 273; O’Keson v. Silverthorn, 7 W. & S. 246. Wilson v. Cochran, 46 Pa. 232; Peck v. Jones, 70 Pa. 85; Memmert v. McKeen, 112 Pa. 315.
157 Pa. 490Elder v. Lykens Valley Coal Co. (1893)Defendant appealed
Appeal, No. 9, May T., 1898, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1891, No. 115, on verdict for plaintiff, David D. Elder. Trespass for injuries to land. Before Simonton, P. J. At the trial, plaintiff claimed that defendant negligently deposited large piles of culm and refuse on tlie banks of Bear creek whicli empties into Wiconisco creek, and that the rains and elements swept large quantities of the culm down tbe two creeks and on to plaintiff’s lands. Defendant offered to prove generally by expert witnesses that there was no negligence in putting tbe coal dirt where it was before he made tbe change of tbe stream. Also the special facts mentioned in the opinion of the Supreme Court. Objected to, excluded and exceptions. [13-18] Tbe court charged in part as follows : “ [Defendant lias no right in carrying on its mining operations, it has no right, speaking generally, to take the coal dirt out of the mines, separate it from the coal, and throw it into the stream ; ] [1] it must have regard to the interests of those who are living upon the stream; and unless it shows some solid reason for it, it would not have the right to put this material into the stream. [It is claimed by the plaintiff that, having done this, this material passed down gradually, or perhaps by the flood of 1889 to some extent rapidly, down the stream, and that it was lodged, a large amount of it, in what you heard called Good’s dam, and that it was afterwards put out of the dam, the plaintiff claims, through the concurrence and on the responsibility of the defendant, and passed on down, and finally in 1889 lodged to some extent upon the land and in the springs of the plaintiff. You will determine how that was, as to the passing of this coal dirt down the stream.] [1] You will find what the facts were in regard to passing it out of Good’s mill. It has been testified that the mill was purchased by the defendant ; that it was leased by the defendant to a brother, I believe, of Good, from whom it was purchased; that after it was leased, the coal dirt which was in the dam, to a considerable extent, and that which was in the headrace, and, if any, in the tail-race, was swept out into the stream — in 1887 or 1888, I believe — you will remember — -this is said to have occurred, and it is claimed by the plaintiff that this was done on the responsibility of the defendant. “ The defendant was the owner at the time it was done. [A lease has been given in evidence by the defendant to Good— at least it was said to be in evidence ; it has not been produced, it has not been read ; we do not know what its terms are. You will remember what the testimony was as to whether the mill could be operated or not in the condition it was while that coal dirt was in. If it could not be operated at that time, if it was in the contemplation of the parties on both sides that the coal dirt was to be removed, and if it was turned over in that condition, to be operated as a mill, by the defendant to Good, and if he did then turn that coal dirt out into the stream, if you find that it previously came from the mines of the defendant, then we say that the defendant, under those circumstances, would be responsible for whatever damage was done by turning that coal dirt out of its dam. The fact of its having leased it with that in, when it was necessary that it should be removed in order that the mill could be operated, would not relieve it from the responsibility, whatever it might be, for that coal dirt. And we say to you further, that, if this coal dirt was voluntarily put by the defendant into the stream at the mines, and, if you find it to be so, at the dam, then, even if the extraordinary flood of 1889 did carry it down on to the land of the plaintiff, the fact that this was an extraordinary flood would not, under those circumstances, relieve the defendant from responsibility.] [2] If it put the coal dirt where it had no right to be, where it had no right to put it, and where the tendency of ordinary floods would be to sweep it on to the lands of the plaintiff, then, even if it was swept there by an extraordinary flood, that would not relieve the defendant from responsibility, because its negligence would be concurring with the extraordinary flood; but for whatever damage was occasioned by the extraordinary flood alone, without any concurrence of the defendant, it would not be liable. “ Testimony has been given by the defendant tending to show that there was coal dirt coming from mines above its mines. That fact would not, of itself, relieve it from responsibility for the coal dirt that it put in, if you find that it did. If you find then that it did voluntarily put this coal dirt into the stream in 1886 or 1887, or both, and that it did voluntarily put this coal dirt out of its dam in 1888, or whenever it was, and that •this was carried down afterwards and lodged upon the plaintiff’s land, then it would become your duty to ascertain whether any damage was thus done to him; and if there was any real, substantial, pecuniary injury done to him, for that, under those circumstances, he would be entitled to recover. And in determining these facts you are to consider the whole evidence on both sides. You are to consider all the testimony that bears upon the question of whether or no defendant did put this coal dirt into the stream. [If you find that it did, then you are to consider whether it would be the natural and probable, and whether it was the actual consequence of the flow of the stream downwards, that this coal dirt was carried down the streams; you are to consider whether it did or did not lodge upon the farm and in the spring of the plaintiff; and if you should find that it did not, that it did him no injury, he would be entitled to no damage. If you find on the other hand that it did injure his water or his land, then you would have to determine the amount of damage that was done to him.] ” [3] Defendant’s points were, among others, as follows: “2. The floods of January, 1886, and that of 1889 (known as the Johnstown flood) were acts of God; and the plaintiff cannot recover for any damages he might have sustained resulting therefrom. Answer: To that we say, gentlemen, as we have already said to you, that for damages done purely and simply by what is called an extraordinary flood, as it is practically conceded these floods were, the defendant would not be liable ; but if the defendant puts coal dirt before the last of these floods where it had no right to put it in the stream, and if then that coal dirt was carried on to the lands of the plaintiff by an extraordinary flood, that would not relieve the defendant for liability therefor.” [4] “ 7. Even if the jury believe that the culm and dirt were placed in Bear creek by the defendant in 1886 and 1887, or in the Wiconisco in May, 1889, it would be no ground for recovery in this case, it not having been proved that said deposits were carried on to plaintiff’s farm, on or after June 1, 1889, as is alleged in plaintiff’s narr. Hence the verdict must be for the defendant. Answer: It is sufficient for us, in answer to that point, to say, as it asks us to give the jury a binding instruction, we cannot affirm the point.” [5] “ 8. As the running was done without malice or negligence, if the plaintiff was thereby injured, it is damnum absque injuria, and the plaintiff cannot recover. Answer: That point we cannot affirm, because it asks us to take the case from the jury.” [6] “ 84. As the plaintiff has neither alleged in his narr, nor proved any negligence of the defendant in 1889, when he says the dirt was lodged on his farm, there can be no recovery. Answer: That is refused for the same reason.” [7] “ 9^. As the work done, by which the culm, etc., went in Bear creek, was done for the protection of the banks of culm, and to prevent them being washed away, it affords no cause of action to plaintiff.” Refused. [8] “ 10. The testimony in the whole case shows that the defendant did not go bejmnd what was necessary in the lawful use of his property, and the plaintiff cannot recover.” Refused. [9] “ 11. The mining of coal necessitated the dirt, culm, etc., and as the evidence shows the defendant did everything required to protect the rights of others, there can be no recoveiy by the plaintiff, and the verdict must be for the defendant. Answer: That we have to decline for the reason that it requires us to give binding instructions to the jury; and there would be the further reason that it is predicated upon a witness undertaking to decide a question of law by saying that the defendants did everything that they were required to do. That is a legal question.” [10] “ 14. The defendant is not responsible in law in this case for1 its action in the premises, although both quantity and quality of the water of the Wiconisco creek were affected thereby.” Refused. [11] “ 15. The uncontradicted evidence in this case, showing that the unprecedented floods, which did the damage to the plaintiff’s property were great torrents of water which came from' the adjoining lands to the plain below, the defendant is not responsible for the loss thus occasioned, if any loss is shown to have occurred. Answer: To that we say, as we already have said, gentlemen, that for the action of an unprecedented flood, pure and simple, the defendant would not be liable ; if the negligence of the defendant concurred with the flood, the defendant would be liable for the result.” [12] Verdict and judgment for plaintiff for $1,507. Errors assigned were (1-12) instructions ; (13-18) rulings on evidence; quoting instructions and bills of exceptions. While one is responsible for such consequences of his fault as are natural and probable, and might therefore be foreseen by ordinary forecast, if his fault happen to concur with something extraordinary, and therefore not likely to be foi'eseen, he will not be answerable for the extraordinary result: Schaeffer v. Jackson Twp., 150 Pa. 145; Chartiers Twp. v. Phillips, 122 Pa. 601; McCauley v. Logan, 152 Pa. 202. When the facts are undisputed, what is negligence is a question of law, and for the court: Reese v. Clark, 146 Pa. 465; Fulmer v. Packard, 32 N. E. Rep. 784. There is nothing to show that defendant used its property in an unreasonable or unlawful way; and for such use as proved the books are full of cases holding that defendants are not responsible : R. R. v. Lippincott, 116 Pa. 483; R. R. v. Speer, 56 Pa. 326; Keiser v. Gas Co., 48 Leg. Int. 477; Jutte v. Bridge Co., 29 W. N. 169; Pa. Coal Co. v. Sanderson, 113 Pa. 126; Collins v. Chartiers Gas Co., 131 Pa. 143; Long v. Pa. R. R., 147 Pa. 343; Lane v. Atlantic Works, 111 Mass. 136; Wabash R. R. v. Locke, 14 N. E. R. 391; City of Allegheny v. Zimmerman, 95 Pa. 287; Fairbanks v. Kerr, 70 Pa. 86; Baker v. Fehr, 97 Pa. 72; Hoag v. Ry., 85 Pa. 293 ; Loftus v. Ferry Co., 84 N. Y. 455; Dougan v. Champlain Trans. Co., 56 N. Y. 1; Cleveland v. N. J. Steamboat Co., 68 N. Y. 306; Burke v. Witherbee, 98 N. Y. 562; Marsh v. Chickering, 101 N. Y. 396; Hayes v. Ry., 111 U. S. 228. The lease from defendant to Daniel A. Good was a simple lease of the property without any covenant for repairs by the lessor. Under such circumstances the landlord would not be responsible for any act of the tenant: Bears v. Ambler, 9 Pa. 193; Offerman v. Starr, 2 Pa. 394. Where an act is malum in se or willful, the person guilty of it is liable for all the consequences, however remote, because the act is quasi criminal in its character’, aird the law conclusively presumes that all the consequences are foreseen and intended : 16 A. & E. Enc. L. 434; Bigelow on Torts, 313 ; Robinson v. Black Diamond Coal Co., 57 Cal. 412; Coal Co. v. Tucker, 48 Ohio, 41. That one who throws coal dirt and other impurities into a stream, and permits them to be carried down by the action of the water and deposited on the land of another, is responsible in damages therefor, has been recognized and applied in the following cases : Coal Co. v. Price, 81 Pa. 156; Howell v. McCoy, 3 R. 268; Horton v. Hall, 1 Penny. 159; McCallum v. Water Co., 54 Pa. 58; Water Co. v. Iron Co., 84 Pa. 284; Seely v. Alden, 61 Pa. 306; Lentz v. Carnegie, 145 Pa. 612 ; Bamford v. Turnley, 3 B. & S. 61; R. R. v. School District, 96 Pa. 70.
157 Pa. 500Commonwealth v. Pottsville Iron & Steel Co. (1893)The court accordingly entered judgment for the amount of…
Appeal, No. 10, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., June T., 1893, No. 39, for Commonwealth, on appeal from tax settlement. Appeal from tax settlement. The ease was tried by the court without a jury, who found the facts as follows in an opinion by Simonton, P. J.: “ (1) The Pottsville Iron & Steel Company, defendant, has a capital stock of $450,000. It paid no dividends during the tax years 1890 and 1891, and its proper officers made and returned to the auditor general for each of said years a valuation of the capital stock at par, or $450,000. The auditor general thereupon settled and entered, and the state treasurer approved, an account for tax for said years, charging tax at three mills upon the appraised value of the stock for each of said years, the tax amounting to $1,350 for each year, or $2,700 for the two years. From the account so settled, entered and approved, the company duly appealed to this court. “ (2)- Defendant was chartered under clause 17 of section 2 of the General. Corporation Act of 1874, which provides for the incorporation of companies for ‘the manufacture of iron or steel. or both, or of any other metal, or of any article of commerce from metal or wood, or both.’ Section 38 of said act provides that: “ ‘ Companies incorporated under the provisions of this act for the manufacture of iron or steel, or both, or of any other metal, or of any article of commerce from wood or metal, or both, unless otherwise provided by this act, shall, from the date of the letters patent creating the same, have the powers and be governed, managed and controlled as follows: “ ‘ Clause 1. Every such corporation may, in the manner prescribed in this act, increase its capital stock to an amount not exceeding five million dollars, and shall have the right to purchase, lease, hold, mortgage and sell real estate and mineral rights, to prove and open mines, to mine and prepare for market, or for their own use and consumption, coal, iron ore and other minerals, and to erect and construct furnaces, forges, mills, foundries, manufactories and such other improvements and erections as they may deem necessary, and to manufacture iron and steel, or any other metal, or either thereof, in all shapes and forms, and either of these metals, exclusively or in combination with other metals or wood, and to transport all of said articles or any of them to market, and to dispose of the same, and to do all such other acts and things as a successful and convenient prosecution of said business may require ; Provided, They shall not at any one time have more than ten thousand acres of land within this commonwealth, including leased lands.’ “ (3) In its application to the governor for charter the company set forth that its object in seeking incorporation was for the purpose of: “ ‘ Having the right to dig iron ore, build and operate furnaces, forges, manufactories, rolling mills, and to manufacture machinery and other manufactures of iron and steel, and to have and exercise all of the rights and privileges conferred by the act of April 29, 1874.’ “ The company has no powers, privileges or franchises except such as are conferred by the General Corporation Act of 1874 upon all corporations chartered since the date of its passage for the manufacture of iron or steel. “ (4) The capital stock of the defendant company is now, and was in 1890 and 1891, invested exclusively in blast furnaces, rolling and steel mills fully equipped, and in sundry building, appertaining thereto, in which said blast furnaces, rolling and steel mills it was and is engaged in the manufacture of pig iron, railroad iron, steel beams, channels, bars, plates, etc., for structural purposes in the county of Schuylkill, employing constantly from 800 to 1200 men in said manufacturing business. “ (5) The defendant has never at any time exercised the right of eminent domain, nor engaged in- the business of brewing or distilling spirits or malt liquors. “ (6) The defendant company is not and never has been engaged in any business other than that of manufacturing, as aforesaid. No part of its capital is invested in iron or coal land; it does not dig or mine iron ore or coal either to sell to others or for use in its own furnaces, but all of its capital is invested in its strictly manufacturing plant, property and business, and its corporate energies are confined exclusively to such manufacturing business. “ Upon the above facts defendant claims to be within the proviso of section 21 of the Revenue Act of 1889, which relieves from taxation upon their capital stock corporations ‘organized exclusively for manufacturing purposes and actually carrying on manufacturing within the state,’ and we should so hold were it not for the decision of the Supreme Court in Commonwealth v. Westinghouse Electric & Manufacturing Company, 151 Pa. 265, which, as we understand it, requires us to deny any exemption whatever to any corporation in whose charter we find a power, used or unused, to engage in any business other than manufacturing. In Com. v. Lackawanna Iron & Coal Co., 129 Pa. 346, it was held that the ownership of iron ore and coal properties and the mining of iron ore and coal for the supply of raw materials, while frequently convenient and desirable, were, nevertheless, not essential or legally incident to the business of manufacturing, and, as we find that the law under which defendant is incorporated and which constitutes its charter confers upon it authority to own coal and ore lands and mine coal and iron ore, we must hold that it is authorized to make investments and do things not absolutely essential to a manufacturing business, and that, therefore, within the ruling in the Westinghouse case, it is not entitled to exemption, but is taxable upon its entire capital stock, although, as matter of fact, it is not engaged in any other business, and its whole capital is invested in manufacturing. But in so ruling we reiterate what was said by McPherson, J., in Commonwealth v. National Oil Co., 172 March term, 1892 [quoting the opinion as in the report of the case below, page 520, beginning at ‘while’]. “We can hardly conceive that it was not in the minds of the legislators to exempt such a corporation as this. If it is to bo taxed there is neither equity nor justice in exempting any other manufacturing corporation, and yet, for the reasons stated, and in obedience to the ruling in the Westinghouse case, we must hold, as a conclusion of law, that defendant is not organized exclusively for manufacturing purposes, and therefore, not entitled to any exemption whatever.” Error assigned was in entering judgment as above. Com. v. Lackawanna Iron and Coal Co., 129 Pa. 346; Com. v. Westinghouse El. & Mfg. Co., 151 Pa. 265; Com. v. Northern Electric Light & Power Co., 145 Pa. 105 ; art. 9, § 1, of the Const.
157 Pa. 507Commonwealth v. Juniata Coke Co. (1893)The court gave judgment for amount of tax on whole capital
Appeal, No. 24, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., June T., 1892, No. 535, for plaintiff, on appeal from tax settlement. Appeal from tax settlement. Before McPherson, J. The ease was tried by the court without a jury, the facts being found as follows : “ 1. The defendant is a corporation of the commonwealth chartered in February, 1891, under the general corporation act of 1874, and its supplements, for the purpose of ‘ carrying on the business of mining coal and the manufacturing of coke therefrom, and the transporting, selling and marketing the said coke and coal, and to this end to purchase, lease, acquire and in its corporate name take, hold, convey and dispose of such coal, coal lands, mineral rights, mining rights and privileges, and such other real estate and such personal property as may be necessary for the purpose of its organization, and generally to carry on the said coke and coal business in all its branches and details.’ P. L. of 1891, p. 476. “ 2. Its capital stock is $246,614.98. During the tax year ending the first Monday of November, 1891, it declared no dividend, and its capital stock was accordingly appraised at $246,614.98, upon which valuation a tax of three mills was imposed under the general revenue act of 1889, for the portion of the year from February 13th to November 2d. “ 3. The defendant owns a considerable quantity of coal land from which it mines the coal which is used in its ovens. It sells no coal and buys none, but is engaged solely in taking its own coal out of the ground and converting it into coke for the market. Its property is situated in the county of Fayette. “ 4. It is not engaged in brewing or distilling malt or spirituous liquors, and does not enjoy or exercise the right of eminent domain. ' “ CONCLUSIONS OF LAW. “This case is identical in principle with Com. v. Westinghouse El. Mfg. Co., 151 Pa. 265. The present defendant has two distinct corporate franchises: one, to mine and sell coal, and the other to mine coal and manufacture coke therefrom. Its franchise to mine and sell coal is in no sense a manufacturing franchise. Mining is a mere appropriation of an article furnished by nature, and it is like the liberation of natural gas or oil from the earth : Com. v. Light and Power Co., 145 Pa. 117. The defendant is, therefore, not organized exclusively for manufacturing purposes; and this is not modified by the fact that it does not sell any coal. If it has the powers of an ordinary coal mining company (and this is clearly apparent from its charter), if it may mine and sell coal, it must be treated as in part a coal mining company, although it does not use this particular franchise. In the Westinghouse Electric Company’s case, the charter of the defendant contained a power to buy and sell the securities of other companies, and this fact was held to be fatal to the claim that it was organized exclusively for manufacturing purposes, although it had never used the power referred to, and in fact was doing no other business than manufacturing. “We can see no possible distinction between that case and the one before us, and we, therefore, obey the ruling of the Supreme-Court and conclude that the defendant is not organized exclusively for manufacturing purposes, and it is taxable upon its whole capital stock. ■ “ It will be observed that the defendant’s condition is similar to that of the National Oil Company, No. 172, March T., 1892, Dauphin C. P. [page 516 below], and we repeat the request there made for a reconsideration of the decision announced last year on the exempting clause of the act of 1889. We refer to the subject again, only because the present case furnishes an additional reason for respectfully urging a favorable reception of that request. For it is manifest that, unless all the coke companies of this region have charters substantially identical with the defendant’s charter, there will certainly be inequality of taxation, although the actual manufacturing business is the same in each instance and ought to be equally free or equally burdened. “ Moreover, as the rule now is, we cannot reach, and, therefore, cannot consider the interesting and important question raised by the defendant’s evidence, namely, whether its capital stock invested in coal land is exempt on the ground that this land is a necessary adjunct of, its manufacturing business, or whether the tax ought to be so apportioned as to rest only on this part of the capital stock. A similar question exists, also, as to certain other classes of corporations, for example, slate companies and fire brick companies, but it cannot now be decided so as to lay down a rule which will bear equally upon a whole class. For, if a particular charter happens to contain a power (whether used or unused) which is not manufacturing, this alone is decisive, and further discussion is merely academic. But this state of affairs is the rule. Indeed, the combinations of csrporate powers asked for and granted are so numerous that one may fairly say, there is no rule governing the form of charter to be issued to any given class, but every charter is an exception. “ Without repeating what was said in the National Oil Company’s case with reference to the practical difficulties in the way of the existing rule, we will leave the subject, feeling confident that the Supreme Court will consider the matter carefully, both as judges and as men well acquainted with affairs, and in some appropriate way will point out a remedy.” Error assigned was, entering judgment as above. Com. v. Northern Electric Light & Power Co., 145 Pa. 105; Act of June 1, 1889, P. L. 420; Commonwealth v. Westinghouse Mfg. Co., 151 Pa. 265 ; Com. v. Westinghouse Air Brake Co., 151 Pa. 276; Act of April 29, 1874, P. L. 28 ; Com. v. Lackawanna I. & C. Co., 129 Pa. 346. Commonwealth v. Lackawanna Iron & Coal Co., 129 Pa. 346; Com. v. Northern Electric Light & Power Co., 145 Pa. 105.
157 Pa. 512Com. v. Savage Fire Brick Co. (1893)The court gave judgment for the amount of tax on the…
Appeal, No. 2, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1892, No. 268, for plaintiff, on appeal from tax settlement. Appeal from tax settlement. Before McPherson, J. The case was tried by the court without a jury, the facts being found as follows: “ 1.
157 Pa. 516Commonwealth v. National Oil Co. (1893)The court entered judgment for the amount of tax on the…
Appeal, No. 23, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., March T., 1892, No. 172, for plaintiff, on appeal from tax settlement. Before Appeal from tax settlement. Before McPherson, J. The case was tried by the court without a jury, the facts being found as follows : “1.
157 Pa. 524Commonwealth v. Mill Creek Coal Co. (1893)The court entered judgment for the full amount of tax…
Appeal, No. 35, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., June T, 1893, No. 155, for commonwealth, on appeal from tax settlement. Appeal from tax settlement. Before Simonton, P. J. The case was tried by the court without a jury, the facts being found as follows: “ The defendant is a corporation of the state of Pennsylvania, having an authorized capital of $100,000, which was appraised by its officers for taxation for the year ending first Monday of November, 1892, at $200,000, upon which tax was charged in the settlement made by the auditor general and state treasurer January 19,1893, at the rate of five mills, amounting to $1,000. Defendant has paid $800, being four fifths of the amount charged against it in said settlement; and claiming this as a payment in full of the amount of tax legally due from it, has appealed from the settlement with respect to the balance of the amount charged therein, for the following reasons: “ 1. Because the tax on capital stock is a property tax, and appellant claims that it is only liable to the payment of a tax of four mills on the appraised value of its capital stock, under the act of June 8,1891, and cannot lawfully be taxed five mills upon the value thereof, because said tax, to the extent of one mill, or one fifth thereof, is void for want of uniformity under article 9, section 1, of the constitution of Pennsylvania, which provides that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and the state tax upon the same class of subjects is, by the said act of June 8,1891, fixed at four mills upon the valuation thereof. “ 2. Because appellant claims for the same reasons that the imposition of a tax of five mills instead of four mills on the appraised valuation of its capital stock under said act of June 8, 1891, is void, because it deprives appellant ‘of equal protection of the laws,’ as intended by the 14th amendment to the constitution of the United States, and that excess of taxation is also void because its exaction does not constitute ‘ due process of the law,’ and is contrary to the ‘ law of the land,’ as intended by the constitution of the United States. “ In Commonwealth v. Germania Brewing Co., 145 Pa. 83, it was clearly shown, in an opinion of this court, delivered by Judge McPherson, and adopted by the Supreme Court, that the requirement of the constitution that all taxes shall be uniform on the same class of subjects is more than complied with if we consider the capital stock of the corporations named in § 21 of the act of June 8, 1891, under which the settlement in this case was made, or the corporations therein named, as a separate class, and classification may be carried to a much greater length than is necessary for the purpose of sustaining the tax in question in this case, as will be seen by reference to the cases there cited. The taxation of the capital stock of these corporations at a different rate from the taxation of the personal property of individuals does not result in the want of uniformity forbidden by the constitution. While it is true that the capital stock of corporations represents their property, it is not identical with it, and cannot in any real sense be said to belong to the same class of subjects as the personal property of individuals. “ If the act imposing this tax be, as we have seen, in accordance with the requirements of the constitution of this commonwealth, we are unable to see how it can conflict with the constitution of the United States, and do not consider it necessary to discuss the second specification of objection.” Errors assigned were (1-3) entry of judgment, and not holding tax void under constitution of the state and United States. Com. v. Germania Brewing Co., 145 Pa. 83; Fox’s Ap., 112 Pa. 353; Com. v. Standard Oil Co., 101 Pa. 119; San Mateo Co. v. Southern Pacific R. R., 13 Fed. R. 150. Fox’s Ap., 112 Pa. 335; Fidelity Ins. & Safe Deposit Co., 139 Pa. 612; Com. v. Brewing Co., 145 Pa. 85; Com. v. Delaware Div. Canal Co., 123 Pa. 594.
157 Pa. 527Commonwealth v. Philadelphia Co. (1893)plaintiff appealed
Appeal, No. 12, May T., 1893, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 189Í, No. 395, for defendant. Appeal from tax settlement. Before McPherson, J. The facts appear by the opinion of the Supreme Court. Trial without jury; judgment for defendant; Error assigned was entry of judgment. Com. v. Phila. Company, 145 Pa. 142; Com. v. Westinghouse El. & Mfg. Co., 151 Pa. 265 ; Com. v. Westinghouse Air Brake Co., 151 Pa. 276 ; Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 U. S. 344; People v. American Bell Telephone Co., 29 Am. & Eng. Corp. Cases, 616. Com. v. Phila. County, 145 Pa. 142; Com. v. Westinghouse El. & Mfg. Co., 151 Pa. 265 ; Com. v. Air Brake Co., 151 Pa. 276 ; Jamison v. Collins, 83 Pa. 359 ; Lee v. Keys, 88 Pa. 175 ; Brown v. Dempsey, 95 Pa. 243; Com. v. R. R., 104 Pa. 89; Bradlee v. Whitney, 108 Pa. 362 ; R. R. v. Moyer, 125 Pa. 506 ; Com. v. Hulings, 129 Pa. 317 ; Com. v. D. & P. Tel. Co., 145 Pa. 121.
157 Pa. 529Commonwealth v. Edison Electric Light Co. (1893)plaintiff appealed
Appeal, No. 19, May T., 1893, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1891, No. 395, for defendant, on appeal from tax settlement. Appeal from tax settlement. Before McPherson, J. The facts appear in the opinion of the Supreme Court. See appeal in suit between same parties, on different state of facts, in 145 Pa. 181. Trial without jury; judgment for defendant; Error assigned was entry of judgment. Com. v. Edison Electric Light Co., 145 Pa. 131; Com. v. Westinghouse El. & Mfg. Co., 151 Pa. 265; Com. v. Westinghouse Air Brake Co., 151 Pa. 276; Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 U. S. 344; Com. v. American Bell Telephone Co., 129 Pa. 217. Com. v. Electric Light Co., 145 Pa. 131; Jamison v. Collins, 83 Pa. 359; Lee v. Kees, 88 Pa. 175; Bradlee v. Whitney, 108 Pa. 362; R. R. v. Moyer, 125 Pa. 506 ; Com. v. Hulings, 129 Pa. 317; Com. v. Westinghouse El. & Mfg. Co., 151 Pa. 265; Com. v. Standard Oil Co., 101 Pa. 119; Com. v. Penna. Coal Co., 5 Pa. C. C. R. 90.
157 Pa. 531Commonwealth v. Philadelphia County (1893)
Appeals, Nos. 29 and 37, May T., 1893, by plaintiff and defendant, from judgment of C. P. Daupbin Co., Sept. T., 1891, No. 303, for plaintiff. Assumpsit for amount due on tax settlement. The ease was tried without a jury under act of 1874. At the trial defendant made the following offers: Defendant offered to prove that from the beginning of the year 1891 until he quit his office, John Bardsley collected for the commonwealth of personal property taxes $289,282.96, no part of which was paid by him into the state treasury, and most of which was embezzled, stolen and lost, and the said embezlement, theft and loss having been made possible by the negligence of the accounting officers of the commonwealth, and not through any fault or neglect of the city or county of Philadelphia. Refused; exception. [1] Defendant then offered to prove that by the premature, unwarranted and illegal action of the state’s officers in paying to John Bardsley $420,000 of school moneys several months before the same were due from the state to the city, the said John Bardsley was enabled to embezzle the same, resulting in a loss of that amount to the city and county of Philadelphia through the illegal acts of ñie state’s officers. Refused; exception. [4] Defendant then offered to prove that upon receipt of the precept from the state treasury, showing the amount of personal property tax to be collected for the state from the county of Philadelphia, the said county did, through its board of revision of taxes and its machinery and proper agents and officers, assess and collect said taxes from the taxable inhabitants of the city and county of Philadelphia; that the said moneys were collected by the receiver of taxes, and by him paid to John Bardsley, who was assumed to be the officer of the state authorities to receive them; that the said moneys were kept by him in the account in which only moneys received by him for the state were kept. This was all before the 1st of January, 1891. That of said moneys so received by John Bardsley, #145,000 were actually paid by him into the state treasury, but applied, not to the payment of personal property tax, but to his account with the commonwealth for moneys received for licenses. _Of that amount of #145,000, #70,000 was paid subsequently to January 8,1891, the date of the settlement of the account in suit, and #75,000 prior to said date. Refused; exception. [5] That the balance of said personal property tax so collected from the county and paid to John Bardsley, county treasurer, was, together with other large sums, embezzled by him, and that such embezzlement was made possible by the acts, laches and acquiescence of the accounting officers of the commonwealth. That the said money was lost in the Keystone Bank, which failed on or about the 29th day of March, 1891, and that the unlawful acts, laches and acquiescence of the state officers aforesaid were in part subsequent to the settlement of the account in suit. That said acts, laches and acquiescence on the part of the accounting officers of the commonwealth were made the subject of a special proclamation or message by the governor of the commonwealth, to the senate of Pennsylvania, which he had called together in extraordinary session for the purpose of inquiring into said matters, and that said inquiry was duly made thereof. Refused; exception. [6] Defendant then offered to prove that, as charged by the governor of the commonwealth in his message to the senate under date of October 18, 1891: “ During most of his official term John Bardsley was permitted to retain and use a very large amount of money collected for and payable into the state treasury, for which he neither made nor was even called upon and required to make the account directed by law. For the collection of the moneys so retained by him no such legal steps were ever taken as are mandatory upon the state treasurer and auditor general; and he is shown to have embezzled them to the amount of more than a million and a quarter of dollars. The memoranda and entries made in his books at the time by John Bardsley, and when he had no apparent reason to expect public disclosure or adverse use of them, indicate that, apart from the salary, fees and commissions of his office, to which he was entitled by law, he made as interest, dividends and bribes nearly $800,000. The greater part of this was paid to him for the use of the state moneys, which he was allowed to retain in his possession, and for his exercise and abuse of powers in association with and under the control of the auditing and fiscal departments of the state.” Refused; exception. [7] “ Defendant offers to prove that, as charged by the governor in his message of October 18, 1891: “That of the moneys collected by John Bardsley for the commonwealth of Pennsylvania, he has failed to pay over the following amounts: Personal property tax (1890) . . . $622,013 11 “ “ “ (1891) . . . 289,232 96 License tax (1890) .... 367,604 18 “ “ (1891) . . . . . 1,497 64 Municipal loans tax (1890) . . . 86,030 80 $1,366,378 69 ” Refused; exception. [8] Defendant then proposed to prove that, as charged by the governor in his message of October 13, 1891: “ Nearly all the moneys collected for the commonwealth on account of personal property tax are received by the city and county treasurer, and were in particular received by John Bardsley, before the first of August in each year. The act of June 1, 1889, P. L. 427, under which these taxes are levied, prescribed that the several cities and counties collecting them ‘on the first Monday of September shall pay into the state treasury all such sums of money as may then have been collected, and shall on the second Monday of November immediately following in each year complete and pay into the state treasury the whole amount remaining unpaid, and in default thereof, it shall be the duty of the auditor general to add ten per cent penalty to each county or city on all taxes remaining unpaid on the second Monday of November in each year.’ Of the moneys thus collected for the personal property tax of 1889 by John Bardsley (the commonwealth’s share amounting to $530,044.27), only $200,000 were paid in before the second Monday of November. The sum of $124,500 was paid in January, 1890, and the balance, $170,895, was retained by John Bardsley for his own personal use until November 26, 1890, more than, a year after the same was due and payable to the state, and several months after the collections for the ensuing year were in his hands. This money of the commonwealth was allowed to remain in his possession and under his control with the knowledge, consent and permission of the auditor general and state treasurer. No settlement of the same was ever transmitted to the attorney general for collection, no penalties nor interest were charged against John Bardsley, and no commissions were abated by reason of his default. “ Of the taxes collected for 1890, amounting to $785,753.27, no portion was paid on the first Monday of September, nor on the second Monday of November following. On December 31, 1890, $150,000 were remitted to the commonwealth by John Bardsley, but on the same day this was returned to him by the fiscal and auditing officers of the state. On January 13, 1891, it was again paid into the state treasury by Bardsley, and after that time no portion of the personal property taxes collected for 1890 were paid into the state treasury, and $632,012.11 of public moneys have on this account been efnbezzled, stolen and lost.” Refused; exception. [9] Defendant then offered to prove that, on the 22d of December, 1890, the auditor general wrote to John Bardsley a letter, saying, “I find I can get along without any money this month from you,” Bardsley having in his hands at that time of moneys collected for the commonwealth $1,456,758.06, nearly all of which had been collected by him prior to August 1, 1890, and most of which had been embezzled, stolen and lost. Also, that on Nov. 24,1890, the auditor general advised John Bardsley to “ allow the city’s share of the 1890 tax to remain in his hands until December.” Refused; exception. [10] Defendant then offered to prove that from the beginning of the year 1891 until he quit his office, John Bardsley collected for the commonwealth of personal property taxes $289,282.96, no part of which was paid by him into the state treasury, and most of which was embezzled, stolen and lost, and the said embezzlement, theft and loss having been made possible by the negligence of the accounting officers of the commonwealth and not through any fault or neglect of the city or county of Philadelphia. Refused; exception. [11] Defendant then offered to prove that, as charged by the governor in his message of Oct. 13, 1891 : “ Of the license moneys collected by Bardsley for the commonwealth in 1889, amounting to $572,339.36, most of which was collected before July 1, 1889, he was permitted to retain in his possession and for his own private use for more than a year $237,078.48, for which no settlement against him was ever .transmitted to the attorney general for collection, no interest or penalties were imposed upon him, and there was no abatement of his commission for this default. “ Of the $627,604.18 collected by him on the same account for the year 1890, most of which was paid to him before June 1, 1890, he was permitted by the fiscal and auditing authorities to retain the whole amount in his hands until Feb. 27, 1891, when he made a payment of $100,000, and on March 13,1891, of $160,000, leaving a balance of $367,604.18 of the commonwealth’s money, for all of which he was indebted to it at the time of his imprisonment, and for no part of which, except by the bond of $120,000, is the commonwealth secured. “ During so much of the year 1891 as John Bardsley was in the exercise of the duties of the office of city treasurer, of the moneys he collected for licenses he claims a credit of the greater part for expenses and fees of mercantile appraisements. “ For the tax on municipal loans payable from the city to the state, John Bardsley received from the city of Philadelphia on June 26, 1889, $40,580.40, and on December 30, 1889, $39,524.77, making a total of $80,103.17, which he was permitted to retain in his own hands and for his own personal use until Sept. 30, 1890, when it was paid over. “ On June 6,1890, he received from the city of Philadelphia for like purposes $47,444.88 ;■ and o» December 5,1890, he received $43,167.75, making a total of $90,612.63, all of which he was allowed to retain for his own personal use, all of which he embezzled, and no portion of which was ever paid into the state treasury.” Refused; exception. [12] Defendant then offered to prove that by the premature, unwarranted and illegal action-of the state’s officers in paying to John Bardsley $420,000 of school moneys several months before the same was due from the state to the city, the said John Bardsley was enabled to embezzle the same, resulting in a loss of that amount to the city and county of Philadelphia through the illegal acts of the state’s officers. Refused; exception. [18] The facts were found in the following opinion of the court, by McPherson, J.: “ 1. On January 8,1891, the auditor general and state treasurer settled an account against Philadelphia county for tax on personal property. The county was charged with $772,018.11, the amount of said tax for the year 1890, as fixed bj1' the board of revenue commissioners, less the commissions due the county treasurer for collection; and was charged also with $170,895.48, a balance due upon the settlement immediately preceding, making a total of $942,908.59. Credit was given for certain payments amounting to $320,895.48, and thus the account showed a balance against the county of $622,018.11. “ 2. The county had due notice of this settlement, but did not take an appeal therefrom. “3. On January 18, 1891, the commonwealth received from the treasurer of the county $150,000 on account of the tax charged in the said settlement. “CONCLUSIONS OE LAW. “ This settlement being unappealed from, it is conclusive upon the defendant, as a line of decisions has determined: Spangler v. Com., 8 Watts, 57 j Com. v. Reitzel, 9 W. & S. 109; Hutchinson v. Com., 6 Pa. 124; Northampton Co. v. Herman, 119 Pa. 879; Com. v. Luzerne Co., 1 Mona. 418. Unless unusual circumstances existed it could show nothing except payment made after the settlement; and for this reason almost all of its offers of evidence were incompetent. “ [One offer did propose to prove that $70,000 was paid into the state treasury after the date of the settlement, and that this sum had been collected from the tax on personal property; but it also appeared from the offer that the defendant paid the money on a different account; namely, on the account for li censes, and that the commonwealth’s officers did not know from what source the money was derived. Under these circumstances it is clear that the payment cannot be credited to the settlement in suit. It was a misapplication of the money by the county treasurer, but the state was not a party to it and is not bound to set it right.] [16] “ [With regard to the payment of $120,000, which was made to the commonwealth in October, 1891, (also after the date of this settlement,) by the sureties of the county treasurer, it is enough to say that it was made generally, the treasurer being largely indebted on several distinct accounts, and that it was not directed to be applied, and was not in fact applied, to the settlement in suit.] [17] “ A word or two may be added to explain the rejection of the commonwealth’s offer to prove that on Dec. 30, 1890, the defendant paid $150,000 on account of this tax, and that this sum was repaid to it on Dec. 31, 1890, by the commonwealth’s officers as part of the one third of the tax for 1890, to which it was entitled by section 16 of the revenue act of 1889, P. L. 426. It was intended to argue that this repayment was premature, and therefore improvident, because section 16 requires the counties to pay first into the state treasury the full amount of the tax before they become entitled to receive for their own use one third thereof, as provided b}^ the act; and, therefore, that the subsequent payment also of $150,000 made by the defendant on January 18, 1891, ought not to be allowed as a credit upon the settlement, but ought to be considered as a mere return of the money improvidently repaid to the county on December 31st. “We do not think it necessary to decide whether section 16 of the act of 1889 ought to receive the construction suggested. This much at least is clear, and in our opinion is decisive of the controversy: The payment of January 18th was made by the county and received by the commonwealth as a credit upon this particular account for tax on personal property, and not as a repayment of money improvidently advanced by the state. We think, therefore, that it cannot nowbe diverted by the commonwealth to another purpose. When made it was a proper payment on account of this tax, and it would not be just to receive it as such and afterward to apply it otherwise than as directed by the county and agreed to by the state. “ Moreover, to refuse the defendant credit for this payment would allow the commonwealth to recover interest on money already in its treasury, and would charge the defendant with interest on money which it has already paid. This result may sometimes be unavoidable, but any reasonable view of the facts which will prevent it would properly commend itself to a court which is bound to decide these disputes not only according to law but also according to equity.” Judgment for plaintiff as stated in opinion of Supreme Court. Plaintiff and defendant both appealed. Errors assigned by plaintiff were rejection of evidence as to payment of $150,000, allowance of credit to defendant for same and refusal of interest on same to plaintiff. Errors assigned by defendant were (1, 4-13) rulings, quoting offers ; (16,17) conclusions of law as above, quoting them; (18) in not giving credit to defendant, under § 16 of act of June 1, 1889, P. L. 426, for $159,937.07, together with interest thereon from April 8,1891; (19) in charging interest against defendant from April 8, 1891, upon $159,937.07. The county treasurer was the agent of the commonwealth: Phila. v. Martin, 125 Pa. 583. If John Bardsley did not receive the tax upon personal property as the agent of the state, which we contend that he did, he received it as the trustee of the county of Philadelphia, to be used by him in discharging the tax claim upon it, and when he misappropriated that money the state could not profit by his embezzlement, but received that money in trust for the appellant: Pennell v. Duffell, 4 De G. M. & G. 372. When the commonwealth received $145,000 of the amount of this tax so assessed and collected by the county of Philadelphia, appellant was entitled not only to a credit of $145,000, but also to a further credit of one third of that amount, with interest thereon, as the compensation fixed by § 16 of the act of assembly, in the assessment and collection of that portion of the tax. The settlement was conclusive: Com. v. Reitzel, 9 W. & S. 112 ; Spangler v. Com., 8 Watts, 57; Hutchinson v. Com., 6 Pa. 127; Com. v. Farrelly’s Adm’rs, 1P. & W. 52; Com. v. Pittsburgh & Connellsville R. R., 2 Pearson, 390; Lehigh Crane Iron Co. v. Com., 55 Pa. 448 ; Spangler v. Com., 8 Watts, 57; Com. v. Aurand, 1 Rawle, 282; Phila. v. Com., 52 Pa. 454; Hultz v. Com., 3 Grant, 61; Hays v. Com., 27 Pa. 275; Porter v. School Directors, 18 Pa. 144; Com. v. Freedley’s Ex., 21 Pa. 33; Northampton Co. v. Yohe, 24 Pa. 305; Fitler v. Com., 31 Pa. 406; Blackamore v. Allegheny Co., 51 Pa. 160; Phila. v. Com., 52 Pa. 451; Burns v. Clarion Co., 62 Pa. 422; Clatfelter v. Com., 74 Pa. 74; Siggins v. Com., 85 Pa. 278; Com. v. R. R., 2 Pears. 389. The county and not its treasurer is primarily liable to the commonwealth for the personal property tax: Schuylkill Co. v. Com., 36 Pa. 524; Hughes v. Com., 48 Pa. 66; Com. v. Phila., 9 Cent. R. 215; Mayor of New York v. Davenport, 92 N. Y. 604. The commonwealth is not liable for the laches or neglect of its officers: People v. Jansen, 7 Johns. 332; U. S. v. Kirkpatrick, 9 Wheat. 720; U. S. v. Vanzant, 11 Wheat. 184; Com. v. Baldwin, 1 Watts, 55; Haehnlen v. Com., 12 Pa. 618; Com. v. Wolbert, 6 Bin. 292; Easton Bank v. Com., 10 Pa. 451; Del. Div. Canal Co. v. Com., 50 Pa. 408. If the settlement unappealed from was conclusive, the offers of defendant below to show certain payments before the date of that settlement were certainly irrelevant and were properly excluded by the court and their exclusion was not error: Schuylkill Co. v. Com., 36 Pa. 537.
157 Pa. 550Com. v. Phila. City & Co. (1893)
Appeal, No. 30, May T., 1893, by defendants, from judgment of C. P. Dauphin Co., June T., 1892, No. 10, for plaintiff, on appeal from tax settlement. Appeal from tax settlement. Before McPherson, J. The case was tried without a jury, the facts being found by the court as follows: “ 1. On Jan. 20,1892, the auditor general and state treasurer settled an account against the city and county of Philadelphia for tax on personal property, charging $828,909.36, the amount of said tax for the year 1891, as fixed by the board of revenue commissioners, less the commissions due the county treasurer for collection, crediting certain payments, amounting to $527,241.47, and thus showing a balance in favor of the commonwealth of $301,667.89. “ 2. From this settlement an appeal was duly taken by the city and county of Philadelphia. “ CONCLUSIONS OF LAW. “ Four specifications of objection were filed with this appeal, and to these the case must be confined. It is well settled that no other objections can be heard by this court than those which are thus specified: Porter al Com.», 1 P. & W. 252; Com. v. Porter, 21 Pa. 885 ; D. L. & W. it. R. v. Com., 66 Pa. 64. In the latter case it was said by Chief Justice Thompson, after quoting the defendant’s specifications : ‘ These were the objections filed by the company to the settlement in the auditor general’s office, and were the only questions the court below could legally take cognizance of. This is not only so by force of the decisions referred to (Porter v. Com. and Com. v. Porter), but by force of the terms of the act of 1806, which requires that a remedy specially provided by statute shall be strictly followed.’ “ Turning, then, to the defendant’s specifications, we find that the first two object to the settlement as improperly joining the city and county. It is sometimes a little difficult to know just where the city of Philadelphia ought to end and the county of Philadelphia to begin, but in the case before us we think the separation can be easily and correctly made. With regard to the tax on personal property, the state deals primarily with the counties, and not with the individual taxpayers. Other taxes may be collected under different provisions of law; but as to this tax, the counties are debtors to the state, and must pay their duly levied quota, whether they collect it or not: Schuylkill Co. v. Com., 86 Pa. 524; Com. v. Phila., 9 Cent. R. 215. Cities as such are not liable to the state on this account, and we agree, therefore, that the city was improperly joined in this settlement, and think it should be stricken from the record as a party defendant wherever it may appear. “ The third specification alleges that certain payments were not credited, although made upon the tax in dispute, but no evidence was offered to support this allegation, except as to the first item of 1150,000, and for this the defendant has received credit in the finding aiid opinion filed herewith to No. 303, September term, 1891, Dauphin common pleas. “ (The fourth specification is a general allegation of payment, but assuming it to be sufficient, it was not supported by any other evidence than that which has been already considered in the opinion just referred to, except by the offer on page 1. This was an attempt to show that the county treasurer had paid to the state f185,000 which actually belonged to the school fund of the city of Philadelphia, on account of indebtedness for mercantile licenses. This was, of course, a misapplication of the money, but the commonwealth’s officers did not know the fact, and the commonwealth is not bound to make the correction.] [14] Moreover, this offer seems to ask us to make a fresh misapplication of the money, by taking it from one account in which it ought not to be, and putting it in another account where it is equally out of place. “ All the other offers propose to prove the county treasurer’s embezzlement or the misconduct or neglect of the commonwealth’s officers, and need not be further considered. These defences were not specified, and are not included in the most liberal construction of the four objections which alone are properly before us. “ After the opinion in this case was written the attorney general consented to the filing of a specification, raising the questions of negligence and embezzlement which we had declined to consider. “ Treating them now, therefore, as properly before the court, we may briefly repeat, with regard to the alleged negligence of the commonwealth’s officers, what was said by the Supreme Court in Easton Bank v. Com., 10 Pa. 451: ‘ The rights of the commonwealth are not liable to be compromised by the nonfeasance of her agents.’ In Del. Div. Canal Co. v. Com., 50 Pa. 408, the rule is substantially restated in these words: ‘ The mistake or misapprehension of these officers could not prejudice the commonwealth; ’ and it has been followed very recently by Judge Simonton, who holds in a case similar to this [the following case] that ‘ it is a well settled principle of law that the state shall not suffer by the neglect of its officers promptly to perform their duties.’ “ [The question before us is not of estoppel but of simple negligence, and it seems clear that neglect by the commonwealth’s officers to compel payment could not relieve the county from its prior and continuing duty to pay. The county was bound to pay without being compelled; if it failed in this duty the commonwealth’s officers were bound to compel payment; if they also • failed, both were at fault, but the negligence of neither was sufficient excuse for the other. The mere neglect of the commonwealth’s officers to perform one duty cannot justify the county in its neglect to perform another and separate duty. “ In our opinion, therefore, both upon reason and authority, the evidence offered upon this subject was irrelevant, and was rightly excluded. “ Equally irrelevant, as we think, was the evidence offered to prove John Bardsley’s embezzlement. We assume (as the offers in part require us to assume) that he embezzled the money collected on account of this tax, but it seems to us quite clear that his crime cannot relieve the county. For this particular tax, the county is liable, although it may not collect a dollar from the individual taxpayers, and this liability can only be discharged by payment to the state. As to this tax, the county is not only a collector, but also a debtor. The money which the county collects helps to relieve its own liability, and therefore in a very true sense it was the money of the county, and not the money of the state, which the treasurer embezzled.] [15] “ No doubt the state had a real although indirect interest in it, but the interest of the county was superior and much more direct. This is strikingly shown by the case of Com. v. Phila., 9 Cent. B. 215, which decided that, although the county had collected money expressly as state tax on personal property, nevertheless it might retain it even as against the state, because the money in question was in excess of the quota assessed against the county by the revenue commissioners. In brief, the state looks to the county and the county looks to the taxpayers ; the consequence being, that the money collected from individual taxpayers goes into the county treasurer’s hands as money of the county in the first instance, and if embezzled there is lost by the county and not by the state.” Errors assigned were among others (14, 15) the conclusions of law in brackets, quoting them; (17) entry of above judgment ; and (18) as stated in opinion of the Supreme Court. Phila. v. Martin, 125 Pa. 583 ; Pennell v. Deffell, 4 De G. M. & G. 372; McLaughlin v. Fulton, 104 Pa. 161; Farmers’ Bank v. King, 57 Pa. 202; McDermott v. Miners’ Bank, 100 Pa. 285. Com. v. Wolbert, 6 Bin. 292; People v. Jansen, 7 John. 332; U. S. v. Kirkpatrick, 9 Wheat. 720; U. S. v. Vanzant, 11 Wheat. 184; Com. v. Baldwin, 1 Watts, 55; Haehnlen v. Com., 12 Pa. 618; Schuylkill Co. v. Com., 36 Pa. 536 ; Lehigh Co. v. Bartholomew, 148 Pa. 83; Easton Bank v. Com., 10 Pa. 451; Del. Div. Canal Co. v. Com., 50 Pa. 408; Minor v. Mechanics Bank, 1 Pet. 49; Amherst Bank v. Root, 2 Metc. 522; Act of June 1, 1889, P. L. 420; Com. v. Phila., 9 Cent. R. 215 ; Mayor of New York v. Davenport, 92 N. Y. 604.
157 Pa. 558Commonwealth v. Philadelphia City & County (1893)
Appeal, No. 31, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1892, No. 315, for plaintiff. Appeal from tax settlement. Before Simonton, P. J. The case was tried without a jury, under the act of 1874. The opinion of the court below was as follows: “ 1. On June 5, 1890, John Bardsley, treasurer of the city of Philadelphia, reported to the chairman of the finance committee of city councils that the amount of state tax on loans which would be due from the city to the state July 1, 1890, would be $47,444.88, and accompanied this report with a draft of an ordinance, which, if passed by the city councils, would appropriate the amount of tax so due, together with the amount of interest to become due, June 30, 1890, from which the law required the tax to be deducted; and the ordinance was accordingly passed by councils and approved by the mayor of said city June 16, 1890. “ 2. On July 6, 1890, a check on the Third National Bank of Philadelphia, signed John Bardsley, city treasurer, was drawn to the order of D. C. King, who was chief clerk in the treasurer’s office, for $47,444.88, the amount of tax due July 1st, as above stated. This check, after being indorsed by D. C. King, was indorsed ‘ John Bardsley, city treasurer,’ and ‘ D. O. King, attorney, for deposit only,’ and delivered to the Manufacturers’ National Bank for collection and deposit, and the amount was credited to an account kept by said bank with John Bardsley individually in which he had also deposited moneys received for license fees on account of the commonwealth. This bank, as well as many others, was a depository of moneys received by John Bardsley in his character as city treasurer, but, as stated above, the deposit to which the amount of the check was credited was kept in the name of John Bardsley individually. “ 3. Checks were drawn by John Bardsley against this account from time to time in his individual name, but to what purpose the sums thus drawn from the account were applied does not appear. The $47,444.88 tax on loans due July 1,1890, was never paid to the state treasurer, or received by the state ; and it was admitted by the attorney general on the trial that John Bardsley ‘is a defaulter and embezzler of state and city moneys, not, however, of loans-tax payable to the state by him, and is now a convict in the Eastern Penitentiary.’ “ 4. The same course was pursued in December, 1890, with respect to the interest falling due December 31, 1890, and the state tax accrued thereon, which amounted to $48,167.75, including the passage of a like ordinance, the drawing to the order of D. C. King of a corresponding check, which, with the same indorsements, was deposited in the said Manufacturers’ National Bank to the individual credit of John Bardsley, and the withdrawing of the amount so deposited by him, on checks in his own name, and the state tax, which accrued when the interest was paid on December 31, 1890, was never paid to the state treasurer, nor received by the commonwealth. “ 5. Prior to the settlement of the account appealed from, a settlement was made by the auditor general and state treasurer for the same account against John Bardsley, treasurer, which was subsequently withdrawn, and the settlement now appealed from was substituted in its stead. “ The amount of tax on loans due July 1, 1890, as stated by the city treasurer in his report to the chairman of the finance committee of councils, was $47,444.88, while the amount reported by him to the auditor general for the same period and claimed in the settlement was $43,345.61. How this difference occurred we are unable to state. “6. The bond required by the act of assembly to be given by the city treasurer to the commonwealth of Pennsylvania was given by John Bardsley in the sum of $120,000, and it was admitted on the trial by the commonwealth that this amount had been collected from his sureties, and that no part of it has been applied to the payment of the loans-tax account therein appealed from; and that the sureties did not direct any application of the amount so paid by them to this account. “We have found the facts as above in greater detail than we think necessary or strictly relevant to the question before us, because they furnish a history of the transaction and are considered important by the counsel for the defendant. In our opinion, the vital fact is that the tax which became due during the year 1890 on the indebtedness of the city of Philadelphia was not paid by the city treasurer, or by any other person, on behalf of the city, to the commonwealth. “ Eleven specifications of objections to the settlement have been filed with the appeal on behalf of the defendant, which are substantially as follows: That there is no law requiring or authorizing defendant either to collect or to pay any tax upon its indebtedness; that defendant has not collected or received any tax or done or omitted anything which would render it liable to pay said tax to the state; that the tax on municipal indebtedness is payable by the bondholder and not by the debtor, and that if any tax was to be collected, this was to be done by the city treasurer and not by defendant, and that in making such collection, and in everything relating thereto, the treasurer was the agent and representative of the state and not of the city, and that it is not liable for any neglect or refusal of the treasurer to collect or for any misfeasance on his part, or misapplication of the tax collected, or failure to pay over the same to the state; that the settlement should have been made against the treasurer individually, and not against defendant, and is illegal and void -as against defendant, and that if there was any neglect or failure of the treasurer to collect the tax, or pay it over if collected, it was occasioned by the default and neglect of the officers of the commonwealth to require him within the time prescribed by law so to do, and that for each and all of these reasons the settlement is illegal and void. “ Section 42 of the act of April 29,1844, P. L. 501, enacts as follows: ‘It shall be the duty of the treasurer of each incorporated city, district and borough of this commonwealth, on the payment of any dividend or interest to any holder or holders or agent claiming the same on any scrip, bond or certificate of indebtedness issued by such incorporated city, district and borough aforesaid, to assess the tax herein made and provided for such purposes upon the nominal value of each and every such evidence of debt; said tax to be deducted by the said treasurer, upon the payment of any interest or dividend aforesaid, and the same shall be held by him until paid over to the state treasurer.’ “ It has frequently been decided that this section of the act of 1844 is still in force and that it provides the mode in which the tax on loans issued by cities and boroughs and due from the bondholders to the state is to be assessed and collected: Com. v. City of Chester, 128 Pa. 626, where it is said on page 639 that up to this time state taxes on municipal loans have been regularly collected under the act of 1844. “ Section 3 of the act of April 80, 1864, P. L. 218, applied the provisions of this section to the loans issued by private corporations and imposed upon their officers with respect to the collection of the tax due on their loans and indebtedness the same duties which were imposed by the act of 1844 upon the treasurers and other officers of municipal corporations; and the several acts taxing such loans, which have been passed from time to time since 1864, have substantially continued these provisions. The first of these was- the act of May 1, 1868, P. L. 108, to revise, amend and consolidate the several laws taxing corporations, brokers and bankers. This was repealed and supplied by the act of March 21, 1878, which was in turn repealed by the act of April 24,1874. Thereafter no act required the tax on corporation loans to be deducted from the interest and paid over to the state until the act of June 7, 1879, P. L. 112, section 17, which was continued by the supplement of June 1, 1881, P. L. 37, section 2, and this by the further supplement of June 30, 1885, P. L. 193, section 4 of which enacts ‘ that hereafter it shall be the duty of the treasurer of each private corporation incorporated by or under the laws of this commonwealth .... upon the payment of any interest on any scrip, bond or certificate of indebtedness, issued by such corporation to residents of this commonwealth and held by them, to assess the tax imposed and provided for state purposes upon the nominal value of each and every such evidence of debt, and report annually on the first Monday of November to the auditor general the amount of indebtedness of the corporation owned by residents of this commonwealth as nearly as the same can be ascertained; and it shall be his further duty to deduct three mills on every dollar of the interest paid as aforesaid and return the same into the state treasury within fifteen days after the 31st day of December in each year.’ “ It has been the uniform practice ever since the act of 1864 was passed to settle the accounts against the corporation, and not against the treasurer individually for failure to collect and pay over the tax imposed on the holder of the bonds of private corporations by said act, and the subsequent acts above referred to; and the legality and validity of this practice has been often affirmed by the court. In Com. v. Lehigh Valley Railroad Co., 129 Pa. 429, Justice Clark, delivering the opinion of the court, said on page 449 : ‘ The company was bound to see to it that the treasurer performed his duty in assessing the tax and retaining the amount out of the interest. If he made default in this, his default must be visited upon the company which he represents and for which he acts : Com. v. Delaware Div. Canal Co., 128 Pa. 594. The settlement is made against the company, not for taxes of the company, but for taxes which the company, through its treasurer, ought to have collected. If the treasurer has failed or refused to perform what the law plainly required him to do, and has thereby relinquished his right, upon whom the primary obligation would otherwise have rested, the company, whose interest he represented, and whose instructions he is presumed to have pursued, is rightly held for the consequences of such willful default: Com. v. Lehigh Valley Kailroad Co., 104 Pa. 89.’ And in Commonwealth v. Delaware Div. Canal Co., cited above, the same learned Justice said: ‘We are clear in our convictions that if there is any constitutional authority to impose the tax under the 4th section of the act, the settlement by the accounting officer was rightly made against the company. The act constitutes the company or its treasurer, as such, the collector of the tax, and upon failure to discharge the duty imposed by law, the settlement is properly made against the company whose servant he is, as in case of the default of any other officer of the government upon whom a like duty is imposed. The obligation rests upon the company, but as the company can only act through its officer, the default of the officer is esteemed the default of the company, and the penalty is visited upon them. The treasurer is designated in order that there may be no evasion; he has exceptional opportunities to know, and has the power in his own hands to perform the several matters required. This system of collecting the state taxes was first introduced under the 42d section of the act of April 29, 1844, P. L. 501, where it is applied to municipal loans, and by the act of April 80, 1864, P. L. 218, was first extended to the loans of private corporations.’ “ A comparison of section 4 of the act of 1885 with section 42 of the act of 1844, both of which are quoted above, will show that they are substantially the same so far as the liability of the corporation is concerned, and if the former imposes the liability upon a private corporation for the failure of its treasurer to perform the duties prescribed by the act, it is manifest that the latter imposes a like liability upon a municipal corporation. If, therefore, this were all the legislation on the subject, we should not hesitate to decide that the city is liable, and that the account is properly settled against it. But the case is made still plainer by section 4 of the act of April 8, 1864, P. L. 218, which is as follows : ‘ That the treasurer of each county and city, the burgess or other chief officer of each incorporated district or borough of this commonwealth, shall make return under oath or affirmation to the auditor general of the amount of scrip, bonds or certificates of indebtedness outstanding by said county, city, district, borough or incorporation as the same existed on the first day of January .... of each succeeding year .... together with the rates óf interest thereon; . . . . that on the receipt of said returns the auditor general shall proceed to settle the accounts of each county, city and borough with the commonwealth, fix the state tax due and unpaid and transmit notice of the amount by mail to the officers making said returns; and that if the amount so found due shall not be paid within sixty dajrs, the attorney general shall sue and collect the same with interest from the date of such settlement; and hereafter it shall be the duty of every treasurer of every county, city, borough and incorporated district in this commonwealth to deduct the said state tax on payment of any interest or dividend on debts due by the city, county, borough or incorporated district, and pay the same over to the state treasurer within thirty days after the said interest or dividend has fallen due.’ See 2d proviso, section 2, act June 1, 1889, P. L. 421. “ The purpose of this act probably was to supply the omission in the act of 1844, sec. 42, of any provision requiring the treasurer of counties and cities to report to the auditor general the amount of indebtedness on which interest was paid and tax became due, so that he might know whether all the tax had been deducted and paid over to the state treasurer; and the failure to give him express authority to settle accounts for the tax unpaid. The act is somewhat inartificially drawn, and the logical order perhaps is not carefully followed, but we think its intent and meaning is sufficiently plain. The last clause reenacts sec. 42 of the act of 1844'. The first clause requires the treasurer of counties and cities, and the chief officer of boroughs to make returns of the indebtedness outstanding on the preceding first day of January; and the middle clause provides ‘that on the receipt of said returns the auditor general shall proceed to settle the accounts of each county, city and borough with the commonwealth, fix the state tax due and unpaid, and transmit notice of the amount by mail to the officers making said returns.’ Briefly expressed, we think the meaning of the section is this: The treasurer is required, when he pays the interest, to deduct the tax and pay it over to the state treasurer within thirty days after the interest became due, and at the end of the year he is required to make return of the amount of indebtedness outstanding for the previous year; and on receipt of this return, the auditor general is to settle an account against the city giving it credit, of course, for the tax paid over by the treasurer, and, if any remain unpaid, to ‘ fix the tax due and unpaid,’ which the attorney general must sue for if not paid over in sixty days. “ It was shown on the trial that the practice in the auditor general’s office has not been uniform, but that while the accounts have been settled against the treasurers of counties, the practice has been to settle them against all the cities and boroughs in the commonwealth except the city of Philadelphia; but the act applies alike to all, and two opposite constructions could not be imposed upon it by the practice of the accounting department. “ But it was earnestly contended by the able counsel who argued this case that Phila. v. Martin, 125 Pa. 583, is an authority in favor of the defendant. “The only point decided in that case was, that notwithstanding sec. 15 of the act of March 31, 1876, P. L. 13, the compensation which the state is required to pay to county treasurers as commission for the collection of its revenues, belongs to the treasurers, and not to the counties; and it is an end of controversy for us on that point. But this does not conclude the question now before us, unless the mere fact that the state pays the treasurer a commission for the collection of its revenues, including the assessing, deducting and paying over the tax on loans, when interest is paid, makes him alone responsible to the state for the performance of his duties, and releases the county from liability in the premises. That this is not the case is manifest, for the act requiring the treasurer of private corporations to assess, deduct and pay over the tax, allows him a commission for so doing, and yet as we have seen above, the corporation is liable for his failure so to do, and the account for the resulting liability is properly settled against it. The act of May 1, 1868, sec. 11, P. L. 108, allows to treasurers of private corporations 4 the same commission or compensation as is now allowed by law to county treasurers ; ’ and the act of June 30,1885, sec. 4, P. L. 198, provides that the treasurer’s 4 compensation for his services shall be the same that city and borough treasurers receive for such services; ’ and this compensation has always been allowed to treasurers of private corporations for assessing, deducting and paying over the tax. Thus the treasurer of a private corporation and the city or borough treasurer are paid the same compensation *by the state for the same services; if then such payment makes one of them a state officer, or if he must be a state officer to become entitled to such payment, certainly the other must also be such. “ But if, on the other hand, the right to a receipt of commissions by the treasurer of a private corporation can consist with the liability of the corporation to the state, as we have above abundantly shown it actually does, then the right to a receipt of commissions by the city treasurer must be consistent with a like liability of the city. 44 Another argument to which some weight was given in Philadelphia v. Martin is, that, because the city treasurer is required to give a bond to the state, he is a state and not a city officer. This argument is answered by Justice Strong in Schuylkill Co. v. The Com., 36 Pa. 524, delivering the opinion of the court, where, after deciding that the county is primarily liable to the state for the tax on personal property, he adds, page 536 : 4 Nor is it any valid objection to this construction of the act that the county treasurer is required by law to give bond for the faithful discharge of all the duties enjoined upon him in behalf of the commonwealth, and for the payment of all moneys received by him for the use of the commonwealth. This was required by the act of 1834, ten years before the passage of the act of 1844, which directed the state tax to be charged to the county, and besides he is still a county officer, in whose election or appointment the commonwealth has no voice, and he may be removed from office or compelled to give additional security at the instance of the county commissioners.’ “ And in Hughes v. Com., 48 Pa. 66. in an action on a bond, given to the state by the county treasurer, to recover the amount of an account settled by the auditor general against the treasurer, where a surety defended, because the settlement made by the auditor general and state treasurer against the county treasurer embraced an item of $998.99 for tax on real and personal property, on the ground that as the county was liable to the state for this tax the treasurer was not liable, the court said, ‘ the liability of the county in no wise works the release of the sureties on the state bond; ’ again recognizing the principle that the taking of a bond from the treasurer by the state does not imply that the city is not liable. “In Schuylkill Co. v. Commonwealth, cited above, it was expressly decided that by the act of April 29, 1844, the several counties of the state are made liable as principal debtors for the quota of state tax assessed on the property within such counties respectively; Justice Strong saying: ‘ To decide otherwise would do violence alike to the letter and spirit of the act of April 29, 1844. Every part of that act points to the county as the principal debtor.’ But a part, no doubt a large part, of the compensation allowed to the defendant in Phila. v. Martin, was for commissions for paying over to the state the tax on personal property for the years mentioned in the case stated; and if the right to commissions implied freedom from liability on the part of the county, or if the fact that the county is liable determined that the commissions are not to be allowed to the treasurer, the decision in Phila. v. Martin could not possibly stand. This we think shows conclusively that the decision in that case does not affect the question now before us of the liability of the city, and that the right to commissions may be, and is, entirely consistent with the liability of the city to the state here contended for. “ After the most careful consideration of all the objections urged on behalf of the defendant, and without intending to say or even to suggest that an account against the treasurer might not be sustained, we cannot doubt that the account in the case before us is properly settled against the city. The law imposes the duty of assessing, collecting and paying over the tax on the city treasurer in his official capacity as treasurer and not as an individual. He is selected by the city and not by the state; he acts for the city and it is responsible to the state for the proper performance of his duty. We can see no difference in this respect between the position occupied by a city treasurer relative to the city and the treasurer of a private corporation relative to the corporation ; each is equally liable to the state for the proper performance by its treasurer of the duty to assess, deduct and pay over, the tax, and when he has failed to perform this duty, under such circumstances as to create a liability in favor of the state, that liability is incurred by the corporation whose officer he is. “ Section 42 of the act of 1844, and section 4 of the act of 1864, and some of the succeeding acts on the same subject, require the treasurer to ‘ deduct ’ the tax on payment of the interest; while, by some of the subsequent acts, he is required, on payment of the interest, to ‘ retain ’ the tax. Whichever term is used, the meaning is the same, and, physically, the treasurer neither deducts nor retains, but merely pays out of the treasury of the corporation or municipality, to its creditors, the amount of interest due, less the tax, and the amount of the tax remains in the treasury of the corporation, and does not come physically into the possession of the treasurer. It is simply in his custody as treasurer of the corporation, and it would be a breach of trust on his part towards the corporation to withdraw it in any other manner than by payment to the state. “ It is contended on behalf of the defendant that the failure of the treasurer to pay over the amount of the tax to the state was occasioned by the neglect of the officers of the commonwealth to enforce the performance of that duty upon him. It cannot be doubted that it was the duty of the accounting department to charge the city with the amount of the tax on loans due and unpaid on receipt of the proper returns from the city treasurer, and to require him, if he failed in his duty, to make such returns as provided by section 4 of the act of 1864, but it is a well settled principle of law that the state shall not suffer by the neglect of its officers promptly to perform their duties. It is impossible to say whether the treasurer would have failed to pay over if the officers of the state had acted with greater promptness, but whether he would or not, the fact that they did not so act cannot relieve the city from its liability for the failure of its treasurer to perform the duty imposed by law upon him as the officer of the city. “ It cannot affect the liability of the defendant that it agreed to pay the state tax on a large proportion of its indebtedness when the obligations were issued. The state was no party to this agreement, and its right to the tax cannot be affected by it. The right of the state remained the same whether the tax was to be paid by the bondholder or for him by the city according to its agreement. “ An offer was made on the trial to prove that John Bardsley embezzled the moneys involved in this appeal as well as other large sums of money belonging to the city and county of Philadelphia and to the state of Pennsylvania, which was objected to on behalf of the commonwealth and admitted subject to the objection. We consider the offer irrelevant, and therefore the evidence offered has not been considered by the court. “ There is no evidence in the case which tends to show that any of the obligations on which interest was paid, and in respect of which tax became due, were issued by the county of Philadelphia, and we therefore treat the case as one against the city of Philadelphia only, and our conclusion is that the commonwealth is entitled to a judgment for the amount of the tax which accrued upon its indebtedness not exempt from taxation, upon which interest became due and payable, and was paid during and for the year 1890 on the obligations held and owned by individual residents of the state.” The court directed judgment to be entered for plaintiff as stated in the opinion of the Supreme Court, page 577, below. Exceptions filed by the city were overruled by the court in the following opinion: “ If the failure of John Bardsley, the city treasurer, to assess, retain, and pay over, the tax claimed in this case was not, in law, the failure of the city, it cannot be held liable therefor. But if his failure or neglect was legally the failure or neglect of the city, it cannot excuse the failure to perform its duty in order to escape its liability by showing carelessness or negligence of the accounting officers in the performance of their duties as prescribed by law. “ There are numerous cases which sustain this statement, some of which we shall cite. In Ü. S. v. Kirkpatrick, 9 Wheat. 721, the court decided that sureties are not discharged by the omission of the government officers to enforce the law as to periodical accounting, laches not being imputable to the United States; and Judge Story, delivering the opinion of the court, said: ‘ The general principle is, that laches is not imputable to the government; and this maxim is founded, not in the notion of extraordinary prerogative, but upon a great public policy. The government can transact its business only through its agents ; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions .... It is said that the laws require that settlements should be made at short and stated periods; and that the sureties have a right to look to this as their security. But these provisions of the law are created by the government for its own security and protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract with the surety. The surety may place confidence in the agents of the government, and rely on their fidelity in office ; but he has of this the same means of judgment as the government itself; and the latter does not undertake to guarantee such fidelity.’ “ In Com. v. Porter, 21 Pa. 385, it was decided that a county treasurer who fails to pay to the commonwealth the amount due for the state tax received by him, is chargeable with interest; and the omission of the accounting officers to settle his account will not relieve the treasurer from such charge, and Justice Lowrxe, delivering the opinion of the court, said: ‘ It is no answer to this that the auditor general for a long time neglected to decide upon the account, for it is settled by numerous decisions, beginning with our own case of the Com. v. Wolbert, 6 Bin. 292, that the state is not chargeable with the negligence of its officers in such cases, even as against sureties; ’ citing U. S. v. Kirkpatrick, supra, and a number of other cases. And he adds further: ‘ On the principles of common justice, how can it be otherwise ? There is no duty more plainly implied and written than that of a county treasurer to pay ; and how can he excuse his neglect by pleading that of his superior officer to call on him ? His is the first fault, and it is not forgiven because of a similar neglect of another. The auditor general did not settle the account; and what of that? It was no less the duty of the county treasurer to pay; and, if he kept his accounts as he ought to have done, he knew exactly what to pay. His duty was to the state, and not to the auditor general, and he ought to have performed it, and then called for a settlement. The state has been guilty of no negligence, for it has clearly defined the duty of both officers. One of them, who has neglected his duty, has no right to excuse himself on the ground of negligence of the other.’ “ This case is entitled to the greater weight, because it overruled a previous decision of the same court in the same case, Porter v. Com., 17 Pa. 14, which held a contrary doctrine. And it may be worthy of remark that the People v. Jansen, 7 Johns. 332, which also in a very hard case held the doctrine contended for on behalf of the defendant here, was overruled in the People v. Russell, 4 Wend. 570 ; and it is also declared to be without authority in U. S. v. Kirkpatrick, supra.’ “ In Haehnlen v. Com., 13 Pa. 618, the court held that a right of the commonwealth will not be destroyed by the laches of its agents, saying: ‘ The United States v. Kirkpatrick is the leading authority for a principie which covers this case. While that authority remains unshaken, to show that it was the duty of the accounting officers to prevent the defalcation, is to show nothing. That case and many others in our own books prove, beyond question, that the right of the commonwealth cannot be lost by the laches of its agents. The present offers nothing new, nor any circumstances to take it out of the rule of policy we have invariably enforced.’ “In Schuylkill Co. v. Com., 36 Pa. 524, President Judge Pearson said: ‘The general principle long and well established, that the commonwealth cannot suffer through any neglect or omission on the part of its officers, covers many of the delinquencies complained of by the defendant in this case; ’ and Justice Strong, delivering the opinion in the Supreme Court, said: ‘ The commonwealth is not to suffer by the laches of its agent, nor can the county of Schuylkill obtain a discharge from its liability because the state treasurer was not vigilant; citing U. S. v. Kirkpatrick, supra. “In Com. v. Brice, 22 Pa. 211, it was decided that where a sheriff was liable to the county for fines and jury fees received by him, the sureties on his official bond were not discharged by reason of the fact that, after his account had been settled by the county auditors and the balance due by him ascertained, the county commissioners had given to him checks to an amount exceeding the said balance, which were paid by the county treasurer without deducting the amount of his indebtedness, and the court applied the principle stated in the above cited cases to a county, and held that its rights were not affected by the negligence of the county commissioners, saying: ‘ It is inherent in the very nature of the case that the sureties of an officer, who has been guilty of a breach of duty, cannot make any subsequent and consequent neglect of another officer the foundation of a claim that they should be discharged. If they could, then those who have engaged against the primary breach of duty would be allowed to throw the liability for it upon him who committed the consequential one of neglecting to compel its correction, and to make him stand as if he had in this neglected a duty to the sureties of another officer, when he owed the duty, not to them, but to the public only.’ “ The principle on which all these cases proceed is illustrated by the case of Amherst Bank v. Root, 2 Mete. 522, where the court, deciding that the sureties of a cashier are not exonerated from liability for his defaults by reason of the neglect of the directors to examine, as required by the by-laws, into the state of the affairs of the bank, said, by Shaw, C. J.: ‘ Another ground of argument for the defendants was that the sureties were not liable by reason of the culpable negligence of the directors and their agents, inasmuch as the by-laws of the bank made it the duty of the directors to make frequent examinations of the affairs of the bank, to count the money, inspect the books, and generally to watch over its concerns; and it is contended that it does not appear from an inspection of the minutes of the directors that this was done. . . . The adoption of such a principle would lead to this result, that the negligence and fault of one agent, or set of agents, for a corporation would deprive it of the remedy against another for their fault. . . . The idea that the cashier is excused by the act or negligence of the directors arises from considering the board of directors as the corporation, and then applying a very equitable principle that one ought not to recover of a surety damages caused by himself. We think the principle does not apply. The only case which seems to countenance it is the Peo])le v. Jansen, 7 Johns. 332, a case which has been often questioned, and which we think is fully answered by the cases of United •States v. Kirkpatrick, 9 Wheat. 720, and Miner v. Mechanics Bank, 1 Pet. 46.’ “ The principle is further illustrated by the last case cited by Chief Justice Shaw, 1 Pet. 46, where the court held that a usage of the board of directors to permit the cashier to misapply the funds of the bank cannot exonerate his sureties; and Judge Stobv, at page 71, speaking of the pleas, said: ‘They set up a defence for the cashier that his omission “ well and truly to perform” the duties of cashier was by the wrong, connivance and permission of the board of directors. The question then comes to this, whether any act or vote of the board of directors in violation of their own duties, and in fraud of the rights and interests of the stockholders of the bank, could amount to a justification of the cashier who was particeps criminis. We are all of opinion that it could not. . . . The very form of these pleas sets up the wrong and connivance of the board as a justification; such wrong and connivance cannot for a moment be admitted as an excuse for the misapplication of the funds of the bank by the cashier. . . . What is the usage and practice as put in the case ? It is a usage to allow customers to overdraw and to have their checks and notes charged up without present funds in the bank. Stripped of all technical disguise, the usage and practice thus attempted to be sanctioned is a usage and practice to misapply the funds of the bank and to connive at the withdrawal of the same without any security in favor of certain privileged persons. Such a usage and practice is surely a manifest departure from the duty both of directors and cashier and cannot receive any countenance in a court of justice. It could not be supported by any vote of the directors however formal; and, therefore, whenever done by the cashier is at his own peril and upon the responsibility of himself and his sureties.’ . “ A careful consideration of the principles on which the decisions in these cases rest cannot fail to show the fallacy of the reasoning by which the defendants attempt to sustain these exceptions. “ The state can act only through its duly constituted officers. Their duties, and the manner in which they are to be performed and their acts are to be authenticated, are prescribed by law, and they can speak for the state only when performing these duties and authenticating them in the manner prescribed. The legislature can speak for the state only by formal acts of assembly and resolutions. The courts can speak only by formal sentences, judgments and decrees. And the auditor general and state treasurer, in the matter of taxation, can speak only by an account settled in writing, duly entered in the proper register, and sent by certified copy to the party against whom the account is settled. The state is bound by their action when performed in the prescribed manner and within the scope of their jurisdiction, whether it be wise or otherwise, unless it be set aside by an appropriate proceeding; but no one, when called upon by the state to answer for failure to perform a duty to it, the obligation of which does not arise out of their action, but is declared and fixed by law, and is antecedent to and independent of anything they may do, can plead their neglect or failure to act as an estoppel against the state. As is said in Com. v. Porter, supra: ‘ The state has been guilty of no negligence, for it has clearly defined the duty of. both officers. One of them who has neglected his duty has no right to excusé himself on the ground of the negligence of the other.’ ” Error assigned was entry of judgment. Acts of April 15, 1834, P. L. 542; April 29, 1844, P. L. 497; May 18, 1857, P. L. 570; May 14, 1874, P. L. 175; May 7, 1889, P. L. 114, Com. v. Penna, Co., 145 Pa. 266; Standard Oil Co. v. Com., 101 Pa. 146 ; P., F. W. & C. Ry. v. Com., 66 Pa. 76; Com. v. Pittsburgh & Connellsville R. R., 2 Pears. 391; Com. v. Butler Co., 2 Pears. 424; U. S. v. Moore, 95 U. S. 763; Edwards v. Darby, 12 Wheat. 206; U. S. v. Gilmore, 8 Wal. 330; Ins. Co. v. Hoge, 21 How. 66 ; Mathews v. Shores, 24 Ill. 28; Graham’s Ap., 1 Dall. *136; Steiner v. Coxe, 4 Pa. 13; Goddard v. Gloninger, 5 Watts, 209 ; U. S. v. Recorder, 1 Blatchf. 218; Packard v. Richardson, 17 Mass. 143 ; Sedgwick on Statutes, 216 ; Endlich, Int. of St. §§ 357, 358, 360; Com. v. Durkin, 109 Pa. 138; Sheboygan Co. v. Parker, 3 Wal. 93; Com. v. Martin, 107 Pa. 185. Com. v. Del. Div. Canal Co., 123 Pa. 594; Com. v. Lehigh Valley R. R., 104 Pa. 89; Com. v. Chester, 123 Pa. 626; Phila. v. Martin, 125 Pa. 590; Glover v. Wilson, 6 Pa. 290 ; Schuylkill Co. v. Com., 36 Pa. 524; Hughes v. Com., 48 Pa. 66 ; Com. v. Reading, 15 W. N. 530 ; Com. v. Allegheny, 16 W. N. 316; Com. v. Morrison, 1 Pears. 317; Com. v. Wolbert, 6 Bin. 292; People v. Jansen, 7 Johns. 332; U. S. v. Kirkpatrick, 9 Wheat. 720; Com. v. Baldwin, 1 Watts, 55; U. S. v. Vanzandt, 11 Wheat. 184; Com. v. Baldwin, 1 Watts, 55 ; Haehnlen v. Com., 12 Pa. 618; Easton Bank v. Com., 10 Pa. 451; Del. Div. Canal Co. v. Com., 50 Pa. 408; Com. v. Brice, 22 Pa. 211; Miner v. Mechanics Bank, 1 Pet. 49 ; Amherst Bank v. Root, 2 Metc. 522 ; Ayers’s Case, 123 U. S. 443 ; Kentucky v. Dennison, 24 How. 66.
157 Pa. 579Commonwealth v. United States Express Co. (1893)Judgment was directed to be entered for plaintiff
Appeal, No. 32, May T., 1893, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1891, No. 446, for plaintiff, on appeal from tax settlement. Appeal from tax settlement. Before Simonton, P. J. The case was tried without a jury under the act of 1874. The court found the facts as follows : “ 1. The gross receipts of defendant from its express business, transacted wholly within the state of Pennsylvania, during the period included in the settlement appealed from, amounted in the aggregate to $437,657.81. During the same period it paid to several railroad companies for ‘ express transportation ’ the sum of-- “ 2. Some of the railroad companies were paid ‘ a fixed sum per annum for all express facilities ’ furnished to defendant by them; others were paid ‘ a fixed rate per hundred pounds of express matter carried; ’ and others were paid an amount equal to an agreed percentage of the gross receipts of defendant from its express business done on the given road. “ 3. All the railroad companies which carried express matter for defendant, and were paid therefor, as stated in the preceding finding, have paid all the taxes which accrued in respect of all their gross receipts, including the amounts received from defendant, as above stated. “ On these facts defendant claims that it is liable only for the amount of its gross receipts, which accrued during the year included in the settlement, remaining after deducting from its total gross receipts the amount paid to the several railroad companies, as above stated, for the reasons set forth in the following specifications of objections to the settlement appealed from: “ 1. The said settlement for the said years, and each period thereof, is erroneous, for the reason that the tax is assessed upon the total gross receipts within the state of Pennsylvania, without regard to the fact, contained in the reports of the company, of payment of a portion of said receipts to various railroad companies for transportation of the business upon which such gross receipts were collected, contrary to the provisions in section 7 of the act of June 7, 1879, and section 23 of the act of June 1, 1889, providing for the adjustment of tax in such cases between the corporations. “ 2. The said settlement is further erroneous, for the reason that double taxes are received by the commonwealth upon that portion of the said gross receipts paid out for transportation, as set out in the first ground of objection. “ A third specification was filed, which however does not apply to the facts of this case, or the period included in the settlement appealed from. The only questions therefore which can be considered in this case are those raised by the two specifications above quoted: Railroad Co. v. Commonwealth, 66 Pa. 64. “ The provisos in section seven, act of June 7, 1879, P. L. 117, and section twenty-third, act of June 1, 1889, P. L. 431, which are made the ground of the first specification of appeal, are identical, and are as follows : “ ‘ Provided, That in any case where the works of one corporation, company, joint stock association or limited partnership, are leased to and operated by another corporation, company-association or limited partnership, the taxes imposed by this section shall be apportioned between said corporations, companies, association or limited partnerships, in accordance with the terms of their respective leases or agreements ; but for the payment of said taxes, the commonwealth shall first look to the corporation, company, association or limited partnership operating the works ; and upon payment by the said company, corporation, association or limited partnership of a tax upon the receipts, as herein provided, derived from the operation thereof, the corporation, company, joint stock association or limited partnership, from which the said works are leased, shall not be held liable under this section for any tax upon the proportion of said receipts received by it as rental for the use of said works.’ “ The sections of these acts in which this proviso is found, enact1 that .... every express company, .... incorporated or unincorporated, doing business in this commonwealth, .... shall pay to the state treasurer a tax of eight mills upon the dollar upon the gross receipts of said company received from express business done wholly within this state.’ The provisos are expressly limited to ‘ any case where the works of one corporation, company, joint-stock or limited partnership are leased to and operated by another corporation, company, association or limited partnership,’ and the exemption from taxation is strictly limited to ‘ any tax upon the proportion of said receipts received by it as rental for the use of said works.’ “ The defendant is not a corporation or company from which any works are leased, and none of its receipts taxed in the settlement appealed from have been received by it as rental for the use of its works, and it is therefore manifest that [these provisos do not exempt any part of its gross receipts from taxation, and the first specification of objection cannot therefore be sustained.] [1] “ It is further claimed in the second specification that the taxation of all defendant’s gross receipts, not deducting an amount equal to the sum paid by it for express transportation, will result in illegal double taxation. “ The subject of double taxation has recently been considered by each of the members of this court in opinions which will be found in a note to Commonwealth v. Westinghouse Air Brake Co., ,151 Pa. 281; and it is not necessary to repeat what is there said. It is shown by the authorities there cited that the double taxation forbidden by a constitution requiring equality or uniformity of taxation is such as would require the same person or the same subject of taxation to contribute twice to the same burden, while other subjects of taxation belonging to the same class are required to contribute but once. And it was held in Commonwealth v. Tioga Railroad Co., 145 Pa. 38, adopting the opinion of this court by Judge McPherson, that where a railroad company had paid the tax on all its gross receipts, including the amount paid by it to the defendant in that case for the use of its railroad, all the gross receipts of defendant, not deducting the amount received by it from the former company, were taxable, and that this was not double taxation; because both taxes were not levied upon the same subject nor to be paid by the same person. [The receipts of one company were paid to it for transportation, the receipts of the other were paid to it for tolls and trackage. In this case the sums paid by defendant to the several railroad companies, and which formed part of the gross receipts of these companies, were paid for the services rendered by them in transporting express matter for defendant; all defendant’s gross receipts were received for the services rendered by it to its customers in receiving express matter and delivering it to the persons to whom it was consigned.] [2] “In the American Union Express Co. v. Robinson, 72 Pa. 274, the court say that express companies receive a larger compensation, because they contract for a personal delivery of goods intrusted to them. It could not be seriously contended that if defendant had transported the express matter for which it paid freight to the railroad companies by its own servants and in its own vehicles, it could have deducted the cost of so doing from its taxable gross receipts, or that it could have done so if it had hired the vehicles for the transportation by the month or year. [It did not receive any part of the sums paid to it by its customers as the agent of the railroad companies, but all of its gross receipts were for services rendered by it.] [3] “We think the fact that the taxation here imposed does not come within the provisos referred to above, tends strongly to show that the legislature intended the whole of defendant’s gross receipts to be taxed. We must assume that the provisos express the full intention of the legislature, and that if it had intended any further limitation of the letter of the acts, it would have so said. The reasons for the provisos as they stand can be readily seen. The company owning a railroad, which it has leased to another, is not with respect to such railroad engaged in business, and does not receive from its railroad any gross receipts, but only net income. “ [We are clearly of the opinion that the tax charged in the settlement appealed from in this case is not in any proper sense of the term double taxation,] [4] and that therefore the second specification cannot be sustained. “ CONCLUSIONS OF LAW. “ [1. Defendant is not exempted from taxation on any part of its gross receipts, taxed in the settlement appealed from, under the facts of this case, by the provisos to section 7, act of June 7, 1879, and section 23, act of June 1, 1889. “ 2. The taxation of all defendant’s gross receipts under the facts of this case is not illegal double taxation. “ 3. The settlement appealed from in this case is legal and valid.] ” [5] Errors assigned were (1-5) dismissal of exceptions, quoting them; and (6) entry of judgment as above. Express Co. Cases, 117 U. S. 1; Com. v. Westinghouse Air Brake Co., 151 Pa. 281; Com. v. Tioga R. R., 145 Pa. 38; Com. v. New York, Lake Erie & Western R. R., 145 Pa. 200. P. & R. R. R. v. Com., 104 Pa. 80; Com. v. Westinghouse Air Brake Co., 151 Pa. 281; American Union Express Co. v. Robinson, 72 Pa. 274; Union Express Co. v. Ohleman, 92 Pa. 323.
157 Pa. 585Eckert's Estate (1893)Exceptions to auditor’s report by heirs of Peter B
Will — Construction of— Vested and contingent interest. Testator charged upon land the sum of two thousand dollars, the interest to be paid his daughter Mary during her life. He further directed: “ The principal sum of the said two thousand dollars and all interest that may have accrued thereon and not been used, applied and appropriated to the care, support and maintenance of my said daughter Mary in her lifetime, I give and bequeath upon her death unto my two sons, Gabriel and Peter, their heirs and assigns.” Held, that the sons took vested interests in the sum charged upon the land.
157 Pa. 588Crombie v. Order of Solon (1893)The court granted a preliminary injunction, which was…
Appeal, No. 69, Oet. T., 1893, by defendants, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1893, No. 510, granting injunction and appointing receiver. Bill in equity for injunction and receiver.
157 Pa. 590Kaster v. Welsh (1893)Defendant appealed
Appeal, No. 183, Oct. T., 1892, by defendant, J. C. Welsh, from judgment of C. P. Forest Co., May T., 1888, No. 30, on verdict for plaintiff, S. Kaster. Assumpsit for wages. Before Noyes, P. J. At the trial, it appeared that the claim was for wages for labor performed between Oct. 1, 1886, and Oct. 33, 1887. It appeared that plaintiff and defendant had been engaged in operating two oil leases as partners.
157 Pa. 593Baker v. Westmoreland & Cambria Natural Gas Co. (1893)Verdict and judgment for plaintiff
Appeals, Nos. 80 and 81, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1890, Nos. 307 and 309, on verdict for plaintiff, Amanda M. Baker, to.use of Liverpool, London & Globe Ins. Go. Trespass for injuries caused by explosion of natural gas-Before White, P. J., 40th judicial district, specially presiding. At the trial it appeared that, in 1886, plaintiff owned and occupied a residence in Latrobe. The house was in the middle of a large lot which extended back to a street or road called the Derry road. The company, for the purpose of supplying the two houses of plaintiff and Mrs. Reuben Baker with gas, laid a large pipe, from its general system, into the Derry road, and near the end of this pipe put an elbow with a T, having two openings, one for the service pipe to the house of plaintiff and the other for the service pipe to the house of Mrs. Reuben Baker. Each of these openings at the T was protected by a valve. If these valves remained closed no gas could pass into the service pipes that were to be attached to the T; if they were open, the gas in the main would flow without any obstruction to the house. In preparing his house for the use of the gas, S. H. Baker, husband of plaintiff, had a system of pipes put through it, and this system was connected in the basement of the house where it was to be attached to the service pipe. He then had a two inch service pipe laid from the inside of his cellar wall down through his grounds to a point about ten feet distant from the main on the Derry road. The cellar end of this service pipe was not connected with the general house system and was left without any cap or plug. The family had been using the basement to cook in, and the open stove that always had fire in it stood but a few feet away from the open end of the service pipe. On Nov. 10,1886, Mr. Baker received from the superintendent of the gas company, W. L. Mellon, permission to connect his service pipe with the main in the Derry road. When he went with his plumber to make the connection he found that gas at a high pressure was being discharged from the end of the T intended for Mrs. Reuben Baker’s house. He inquired of one Jerry Dillon, a lineman, and employee of the company, whom he found there, what was being done. Dillon informed him that water had gotten into the line, and he was using the full strength of the gas to blow the water out of the line. Mr. Baker said under those circumstances he would not connect up, but Dillon replied that the valve on his side of the T was closed and would remain so, and consequently no gas could get into his service pipe. Baker, relying on this statement of Dillon, had the connection made. This condition of things remained until the next morning, when Dillon, who was still at work blowing the water out of the line, opened the valve on Mr. Baker’s end of the T. The gas immediately flowed into the service pipe, and escaping through its open end into the cellar took fire at the stove and a heavy explosion followed. S. H. Baker, when on the stand, was asked : “ Q. What did you tell him (Dillon) about the condition of your pipe at the house ? A. I told Mr. Dillon ” — Defendant objects to the testimony of the witness as a conversation that passed between him and Mr. Dillon, who was only a lineman of the defendant company and not one of its officers or agents, unless it be followed by proof that the information conveyed by Mr. Dillon was by him communicated to the officers of the company. By plaintiff’s counsel: The purpose of this offer is to show that Dillon, who has been proved to be the man in charge of the defendant company’s line, was informed by the witness that the service pipe running into the witness’s house was open, and that if there would be any danger of gas passing through this service pipe, witness’s property might be in danger of being destroyed ; that he was then informed by Dillon that he proposed blowing the water out of the line at the other end of the T; this to be followed by evidence that the next morning the same person (Dillon), being then in the employ of the defendant company and in charge of this line, came to the place where the T was, opened the valve leading into the service pipe of the witness’s line, forcing gas into the house, and the loss was a consequence, and that this notice to the man in charge of the line was notice to the defendant company. Objected to for the reasons that the testimony already shows and it is a fact that Mr. Mellon was the superintendent of the defendant company in charge of its property at Latrobe; that the person named Dillon was a lineman, as he is correctly described by the witness; that conversations with Dillon or in his presence cannot amount to notice to the defendant company of which he was not the agent. Neither can the defendant company be made liable for his declarations or his negligent acts not performed under the directions of the defendant, or in the line of his employment. By the Court: We think, in view of the statement by the witness of the conversations, that Mr. Dillon, who appears to have been in charge of the line and making some repairs or changes on it, or, at all events, doing some work upon it, that his conversation is competent, with the witness representing the -owner of the property, as part of the res gestse, and it is competent also, with the offer indicated, to raise the question of whether the turning of the gas on, under the circumstances, in view of its condition, would be negligence or not; it would be a question perhaps for the jury ; we are only now deciding upon the competency of the occurrence and conversations at the time this work was being done on the pipe line by Mr. Dillon ; he was doing work or exercising control at the time over this particular part of the pipe line connecting with the service pipe to the plaintiff’s house. Objection therefore overruled and exception. [2] “ Q. What did you tell him about the condition of your pipe at the house at that time ? A. I told Mr. Dillon that the service pipe run up into my house and was disconnected from the plumbing in the house and if there was any danger I would not make the connection at the road. He got down into the ditch and turned up the T of the.service pipe to show me that the valve was in and unturned on the end of the T that I connected with, and that there couldn’t possibly be any danger; and then I told my plumbers or the men that were making the connection that they might go ahead and connect it up, and they did.” Defendant’s points were, among others, as follows : “ 3. The plaintiff in this case, before he can recover, must show that the loss resulted solely from the negligence of the defendant company, and that Mrs. Baker in no way contributed to her own loss by her own negligence. Answer: We cannot affirm this point in this way. We have told you in our general charge that the plaintiff can only recover after satisfying you that the loss resulted from the negligence of the defendant, which we have defined to you, and by showing such negligence prima facie they made out a case, and then it was incumbent upon the defendant company to raise a defence, and if they have shown that the plaintiff, Mrs. Baker, contributed in any degree to the loss or the accident, then the verdict must be for the defendant.” [3] “5. All the material facts of this ease are entirely undisputed, there being absolutely no conflicting evidence as to a single fact. The evidence thus undisputed clearly establishes that on Nov. 10,1886, the defendant company was carrying in its main line, on the Derry road, natural gas at high pressure, and was utilizing the pressure to blow the water out of its line. With full knowledge of both these facts, S. H. Baker, the husband and representative of Amanda M. Baker, on Nov. 10,1886, laid a two inch line from the cellar of his house down to the gas main and connected the two. There was then a single valve between the service pipe so laid and the gas in the main; Mr. Baker having been told, by one Dillon, an employee and lineman of the defendant company, that this valve would remain closed, saw fit to rely upon this statement of Dillon, and neglected to protect his own property by the simple device of capping the pipe in his cellar, and allowed the same to remain open only a few feet distant from the cooking stove. On Nov. 11, 1886, the same Dillon, for the purpose of blowing the water out of the line, opened the valve referred to. The gas was thus allowed to flow into the cellar of the house, and having become ignited at the stove the explosion and fire followed. The evidence further shows that if Mr. Baker had taken the trouble to cap the pipe in the cellar, the accident could not have happened. These facts being undisputed, it becomes the duty of the court to declare the law arising thereon, and we now instruct you that the act of Mrs. Baker in allowing that pipe in her cellar to remain uncapped, amounted to negligence, and, as it unquestionably contributed to the accident, she could not recover in this action, and the present plaintiff, claiming through and under her, cannot recover. Answer: To affirm this point would require the court to take the responsibility of deciding that the plaintiff was guilty of contributory negligence, under the circumstances, in leaving the space in the cellar between his pipe and the plumbing. This, under the circumstances, we refuse to do. While the facts in this behalf may be undisputed, yet, in connection with the situation and all the circumstances, it is a case proper to call to the aid of the court the common sense and judgment of the jury, not to pass upon the facts, but to pass upon the question whether there was a want of ordinary care, under the circumstances, shown by Mr. Baker. And in this behalf we quote from Schum v. Pennsylvania Railroad Company, 107 Pa. 12: ‘But as we said in McCully v. Clarke, 40 Pa. 406, there are some cases in which the court can determine that omissions constitute negligence. They are those in which the precise measure of duty is determined, the same under all circumstances. When the duty is defined, a failure to perform it is of course negligence and may be so declared by the court.’ Now, then, we cannot say what was the determinate duty of Mr. Baker under the circumstances, in view of the conversation had with Mr. Dillon, the lineman of the company, on the 10th of November, 1886, in leaving the pipe disconnected in his cellar. It is a question for the jury, in view of all the circumstances of the situation, to say whether it was negligence or not. If it was, and contributed in any degree to the result, then of course the plaintiff could not recover. Then we cannot say, as a matter of undisputed fact, that if a cap had been put upon the pipe in the cellar, that the accident would not have occurred; and.in this connection all the evidence submitted to us is that of Albert Klingensmith, who says if such cap had been on, the explosion would not have occurred unless the pipe had bursted.” [1] Errors assigned were (1, 3) instructions; (2) ruling on evidence ; quoting instructions, bill of exception and evidence. Harris v. Commercial Ice Co., 153 Pa. 278; R. R. v. Enches, 127 Pa. 316; R. R. v. Cadow, 120 Pa. 559; R. R. v. Feller, 84 Pa. 229; Gramlich v. R. R., 9 Phila. 78 ; Erie v. Magill, 101 Pa. 616; McGill v. R. R., 162 Pa. 381; Myers v. B. & O. R. R., 150 Pa. 389; Warner v. Ry., 141 Pa. 615. McCully v. Clarke, 40 Pa. 406; Schum v. P. R. R., 107 Pa. 12; P. R. R. v. Peters, 116 Pa. 206 ; R. R. v. Jones, 128 Pa. 308 ; Fisher v. Ry., 131 Pa. 292; McGill v. R. R., 152 Pa. 331.
157 Pa. 601Gilfillan v. Dewoody (1893)
157 Pa. 603Dewoody v. Dewoody (1893)
Appeal, No. 90, Oct. T., 1893, by Leonard L. Ray, sheriff, from order of C. P. Venango Co., Jan T., 1892, No. 38, in Perry Dewoody v. A. L. Dewoody, refusing to vacate an order directing the sheriff to pay money into court. Petition to vacate order directing sheriff to pay money into court. The facts appear by the opinion of the Supreme Court. Errors assigned were (1) in granting an absolute rule or peremptory order on the sheriff to pay into court $500 of the amount realized from sale of defendant’s real estate on the fi. fa. No. 38, Jan. T., 1892, on motion of A. W. Dewoody; (2) in refusing the prayer of appellant’s petition for an opportunity to reply to the motion upon which the said order was granted and show cause why the said order should be vacated. Pryer v. Mark, 129 Pa. 529; Mark v. Osmer, 138 Pa. 1. Franklin Township v. Osler, 91 Pa. 160; Bastian’s Case, 90 Pa. 475.
157 Pa. 605Peebles's Estate (1893)
Appeal, No. 232, Oct. T., 1893, by Martha Peebles, widow, from décree of O. C. Venango Co., Jan. T., 1890, No. 24, on petition for widow’s exemption, in estate of W. O. Peebles, deceased. Petition for widow’s exemption. From the petition, answer and proofs it appeared that William O. Peebles died on Feb. 9, 1889, leaving a will of which he appointed John M. Peebles, his son, executor. The first clause of the will was as follows: “ First. I give and bequeath to my wife, Martha Peebles, one thousand dollars, which shall be in lieu of her dower in my estate and also in lieu of the three hundred dollars she would be entitled to under the widow’s exemption law, and in lieu of any and every other interest she might have in my estate after my decease.” On March 29, 1890, the widow presented a petition in which she averred that on Feb. 22, 1889, she was obliged to leave the homestead of decedent on account of ill treatment by her stepsons; that on March 18, 1889, the executor filed an appraisement of the personal estate of the decedent without notice to petitioner ; that on or about April 10, 1889, petitioner was informed that said executor had taken all of said property at the appraised value and had appropriated the same to his own use intending to account for it at the appraised value, and petitioner then notified the executor that she demanded three hundred dollars to be paid to her under the widow’s exemption law; that said executor then refused and has ever since refused to pay said three hundred dollars or set apart to her property to that amount and now refuses so to do. The executor filed an answer in which he denied that the widow was obliged to leave the homestead of the decedent on account of ill treatment. He further averred as follows : “ On the contrary, I aver that on the day of the funeral of said decedent, her husband, she asked me what she ‘ had better do,’ whereupon, understanding her question to relate to her rights as the widow of the said decedent, I replied: ‘ There’s no hurry about it, you have a year to decide.’ Within ten days after this conversation she came to my house and asked me to go to her residence and assist in dividing the household goods, she claiming that part of them belonged to her, and also my advice again as to what she ‘ should do,’ and whether she had better take under the will of her' husband or claim her rights as widow. I again told her that there was no hurry about that; that she had a year to make up her mind, but gave it as my opinion that she had better take under the will. She said she would not wait but would take the thousand dollars given her by the will and take her things and leave the place; that she would not stay there with the boys. I then went with her to the late residence of her husband and assisted in setting apart and delivering to her goods which she claimed to be hers, and I then took the said goods for her and at her request to Titusville, where her father resided, and also removed her to her said father. Relying upon' her election so expressed to me to take under her husband’s will, I proceeded to have the personal property of the testator appraised and then delivered the same over to the children of the testator to whom it was bequeathed, and proceeded with the settlement of the estate of the testator upon the basis of her said election, and have been ready and willing as testamentary guardian of John S. and Gaylord O. Peebles, and have offered to pay to her the sum of money bequeathed to her by the said testator. “ 3. I am advised by counsel and believe that the said Martha having elected to take under the said will is not entitled to demand and receive any other or further sum of or out of the estate of the said decedent. And for that reason I have refused to pay her any money except in accordance with her said election. “ 4. No money has ever come into my hands as executor of the said William O. Peebles out of which I could have complied with the demand of the said Martha, and the only demand she has ever made upon me was for money and not for goods or land. She never asked to have any goods set apart to her except such as she claimed to have owned at the time of her marriage, and these were set apart to her.” After argument the court filed the following opinion discharging a rule to show cause why the exemption should not be paid: “ The answer of the executor under oath denies all the equities relied upon in support of the rule, and the testimony taken in support thereof is that of the widow alone, so far as any material facts are sought to be established. This then is oath against oath, and for this reason the rule must be discharged. I do this without reluctance as, if the widow can sustain the allegations made in support of the rule, she has an ample and complete remedy at law. And now, to wit, March 7, 1892, the rule is discharged.” JError assigned was decree as above. —Under the act of 1851, before the act of 1859, it was the right of the widow to claim, and the duty of the administrator to pay, the $300 exemption out of the proceeds of property in money: Larrison’s Ap., 36 Pa. 130. The sum is payable to the widow, though a stepmother, and she is not a trustee for the children: Nevins’s Ap., 47 Pa. 230. The- widow was certainly entitled to have either property, as she might select, to the value of $300, or money to that amount: McCann’s Est., 9 Pa. C. C. R. 408; Compher v. Compher, 25 Pa. 31. The statutory claim oí the widow for exemption of $300 out of her husband’s estate is such a meritorious and benevolent one that it ought not to be defeated by technicalities, or the astuteness of the court exercised to find reasons for its disallowance. ■ The court below intimates that the widow has a remedy at law, and so she has, as in the case of Compher v. Compher; but as said in that case, the remedy is to be had ordinarily in the orphans’ court. The jurisdictions are concurrent, and the practice observed by petition to the orphans’ court for an order upon the executor to set apart property or pay $300 has been followed and approved for many years: McCann’s Est., 9 Pa. C. C. R. 408; King’s Ap., 84 Pa. 345; Baskin’s Ap., 38 Pa. 65; 3 Rhone’s O. C. Practice, 30. The right of a widow to demand and receive three hundred dollars worth of property out of the estate of her deceased husband, to the exclusion of creditors, heirs, devisees and legatees, does not vest immediately and unconditionally upon his death, but only when she has elected to exercise it: Kerns’ Ap., 120 Pa. 523. It is a right which may be waived: Davis’s Ap., 34 Pa. 256. It may be waived by neglect to make demand within a reasonable time : Burk v. Gleason, 46 Pa. 297 ; by neglect to make the demand before the executor has incurred expenses in proceeding to effect a sale : Davis’s Ap., 34 Pa. 256; by neglect to make demand before the expenses of a full administration have been incurred: Baskin’s Ap., 38 Pa. 65. Being a right that may be waived, by mere supineness of the widow, and that to her disadvantage and to the corresponding advantage of other persons interested in the estate, she may certainly waive it by a positive act resulting in advantage to herself and corresponding disadvantage to the other parties in interest. This appellant has done. In Compher v. Compher, 25 Pa. 31, relied upon by appellant, there was no disappointment of the will nor was the' bequest made to the widow, as in this case, expressly in lieu of her rights under the statutes.
157 Pa. 611Commonwealth v. McComb (1893)
Appeal, No. 249, Oct. T., 1893, by Commonwealth, from order of Q. S. Clarion Co., Nov. T., 1892, No. 12, quashing indictment against defendant, A. C. McComb, for dissuading witness from attending court. Motion to quash indictment for dissuading witness from attending court. From the record it appeared that on Aug. 12,1892, the grand jury made a presentment against defendant for “unlawfully dissuading and attempting to prevent a witness from attending and testifying ” before them. At the November sessions following, the district attorney laid before the grand jury of that term an indictment, charging defendant with said offence, namely: unlawfully attempting to dissuade, hinder, and prevent Mead Nail, W. B. Elliott and Yerd Fulton from attending and testifying at the court of* quarter session, etc., of Clarion county, Pa., on Aug. 2, 1892, in a certain case then and there depending and to be heard before the grand jury on a bill of indictment then and there preferred against D. W. Cook for keeping a gambling house, the said Nail, Elliott and Fulton then and there being witnesses duly summoned and required to attend the said court, etc.; also a second count therein of a like charge for unlawful attempt to dissuade, etc., the said witnesses from attending and testifying in the same case depending in said court on the same bill of indictment against D. W. Cook for keeping a gambling house, etc. A true bill was found by the grand jury on said indictment. The indictment was made without any commitment by a magistrate, and without any instruction from the court. Defendant moved to quash the indictment. The testimony of Wm. A. Cunningham and Sebastian Cook, two of the members of the grand jury by whom the presentment was made at August sessions, 1892, was in substance, that they were members of the grand jury at the August sessions, 1892, that the grand jury madeja presentment against defendant for dissuading and attempting to dissuade a witness .from attending and testifying before that inquest, and that the presentment was not made on the personal knowledge or observation of the grand jurors, and that the grand jury obtained their knowledge of the matter from the testimony given by a witness in another case against another and different person which was then being heard by the said grand jury, and that the information came out through a witness who was then being examined by the grand jury in the case of the Commonwealth v. D. W. Cook, who was charged with keeping a gambling house, and that it was upon the information thus obtained that the presentment was made against this defendant. The court, Clark, P. J., quashed the indictment. Error assigned was quashing indictment. 1 Greenleaf on Evidence, § 373; 2 Russell on Crimes, 473; Com. v. Shaver, 3 W. & S. 338; Clancy’s Case, Fortescue, 208; Schuylkill County v. Copley, 67 Pa. 390 ; Com. v. Green, 126 Pa. 531. Lloyd & Carpenter’s Case, 3 Clark, 188; Com. v. Green, 126 Pa. 531.
157 Pa. 613Cox v. Oil City (1893)Verdict and judgment for defendant
Appeal, No. 357, Oct. T., 1893, by plaintiff, George Cox, from judgment of C. P. Venango Co., Aug. T., 1892, on verdict for defendant. Assumpsit for salary as policeman. Before Taylor, P. J. At the trial, it appeared that plaintiff claimed to recover pay as policeman from Sept. 15,1891, until April 26, 1892. On Sept. 15th plaintiff requested to be relieved from performing any actual duty by reason of sickness. He was laid off by the mayor and remained disabled from the performance of any duty as policeman until April 26, 1892, at which time he was discharged. After plaintiff was employed a regulation was adopted and promulgated that “ policemen were only to be paid for the time when thej^ were actually on duty.” This regulation was made known to plaintiff, and during several months thereafter he was docked for absences, without objection. When Thomas Nicholson, witness for defendant, was on the stand, the following offer was made by defendant: Counsel: I propose to prove by the witness that W. G. Hunt, the mayor of Oil City, told the plaintiff he complained some about being docked too much, and the mayor told him that as a rule and regulation the police force were not to be paid for any time except while they were on actual duty, and if he didn’t like that he must leave the force, and his complaint was made that thejr docked him a little too much and that he didn’t object to being part docked while not on actual duty. This conversation took place before Sept. 15, 1891. Objected to by plaintiff on the ground that it is incompetent, irrelevant and immaterial. Admitted; exception. [2] “ Q. I asked you, Mr. Nicholson, whether the mayor informed Mr. Cox what the city had to do when he was absent from duty ? ” Objected to by plaintiff as 'incompetent, irrelevant and immaterial. Admitted and exception. [8] W. G. Hume, mayor, was asked by defendant: “ Q. State whether or not there was any arrangements made between you and the committee on police ? ” Objected to. Objection overruled and exception. [4] “ Q. Was there anything said about his place being supplied when off duty, and if so what was it ? ” Objected to by plaintiff as incompetent, irrelevant and immaterial. Admitted and exception. [5] “ Q. Now from the 15th of September, 1891, till the latter part of April, 1892, state whether or not the city employed any person to take the plaintiff’s place during his absence ? ” Objected to by plaintiff as incompetent, irrelevant and immaterial. Admitted and exception. [6] Under objection and exception the following ordinance was admitted in evidence on behalf of defendant: “ An ordinance to establish and regulate the police department of the city of Oil City. . . . “Sec. 6. The mayor and committee on police are authorized to make rules for the government of the department, and to provide a badge and club for each member. “ Sec. 8. Each policeman on his appointment will be required to give his assent to obey all police rules and regulations. “ Sec. 9. All ordinances now in force, inconsistent herewith, are hereby repealed. This ordinance to take effect May 29, 1871.” The court gave binding instruction for defendant. [1] Errors assigned were (1) instruction,, quoting it; (2-6) rulings on evidence, quoting the bills of exception but not the evidence ; (7) admission of ordinance, as above, quoting it. Cooley on Taxation, 2d ed. 681; 1 Dillon, Mun. Corp. §§ 96, 210, 292, 385 ; Farrell v. Bridgeport, 45 Conn. 191; Elliott v. City, 75 Pa. 347; Butterwick v. Lowell City, 1 Allen, 172; Noon v. Salisbury Mills, 3 Allen, 340 ; Wilkes-Barre v. Meyers, 113 Pa. 395; Phila. v. Given, 60 Pa. 136; Com. v. Bacon, 6 S. & R. 322; Luzerne Co. Com. v. Trimmer, 95 Pa. 97; Sleigh v. U. S., 9 C. C. Ap. 369; 5 Wait’s Actions and Defenses, 20; Phila. v. Rink, 17 W. N. 136 ; O’Leary v. New York City, 93 N. Y. 1; Act of March 1, 1871, P. L. 137; Act of May 23, 1889, P. L. 277; State v. Hauser, 63 Ind. 155; State v. Bell, 34 Ohio, 194; Budsall v. Clark, 73 N. Y. 73; St. Louis v. Clemens, 43 Mo. 395; Jackson v. Brush, 77 Ill. 59; Minneapolis Gas Light Co. v. Minneapolis, 36 Minn. 159; Matthews v. Alexandria, 68 Mo. 115; State v. Jersey City, 1 Dutch. 530, Whyte v. Mayor, 2 Swan, Tenn. 364; State v. Bell, 34 Ohio, 194 ; 1 Mechem on Public Officers, § 1; Ayon v. French, 21 N. Y. Dailey Reg. No. 98, Sup. Ct., 14 Weekly Digest, 173.
157 Pa. 617Cameron v. Pittsburgh & Lake Erie R. R. (1893)Defendant appealed
Appeal, No. 15, Oct. T., 1893, by defendant, from judgment of C. P. Lawrence Co., March T., 1892, No. 36, on verdict for plaintiff, Allen Cameron. Appeal from assessment of land damages. Before Martin, J. The facts appear by the opinion of tbe Supreme Court. The buildings were on the smaller tract, between the railroad and the canal. When plaintiff was on the stand his counsel proposed to show that although the canal did cut the farm in two, and was occupied for a long period of time across the farm, that notwithstanding this the two parts of the farm were always connected by a bridge and the whole 125 acres was occupied always, while the canal was in operation and afterwards when it went into disuse, as one whole farm. Objected to as incompetent and immaterial for any purpose in this issue. Objection overruled and exception. [2] .The witness then testified as in the offer. Other offers of evidence to prove the injury to the two parts of the farm as one farm were admitted under objection and exception. [1, B, 4, 5] The court charged in part as follows : “ [But when the state took that strip of land for the purpose of constructing a canal upon it, notwithstanding the fact that they took it in fee simple and had the absolute title in it, the identity of the farm through which the canal passed was not destroyed, — notwithstanding the fact that the farm was cut, by taking that strip, into two separate pieces, the identity of the farm was not destroyed, but the two pieces of land, one on either side of the canal, after the building of that canal, constituted a farm just as they had constituted a farm before the commonwealth had entered upon and took the strip out of it.] [8] “ [And notwithstanding the fact that the canal was built across them, they, after that time, constituted one farm, and for the purpose of assessing the damage done by this railroad company to that farm, are to be considered as one farm, the same as though no person, no company — or the commonwealth had not taken that strip out of that piece of land. So that when you come to assessing the damage done, you should assess the damage done to the farm of Allen Cameron, which, as the testimony shows, amounts to between 118 and 120 acres.] ” [9] Defendant’s points were among others as follows : “ 2. In this case, under the evidence, the inquiries and consideration of the jury should be limited and confined to evidence of facts relating to and affecting the value of that tract or piece of plaintiff’s land situate east of the former Erie Canal.” Refused. [6] “3. The jury should not take into consideration, in fixing the amount of their verdict, any advantages or disadvantages, or injuries or benefits to the piece of land west of the former Erie Canal.” Refused. [7] Verdict and judgment for plaintiff for $1,700. Errors assigned among others were (1-5) rulings on evidence; (6-9) instructions; quoting bills of exceptions and evidence and instructions. Advantages or disadvantages affecting an adjoining but separate tract, owned by the same person, but not cut by the railroad, cannot be taken into consideration in assessing damages for the property actually taken: Potts v. R. R., 119 Pa. 278; Pa. Co. for Ins. on Lives v. R. R., 151 Pa. 334; Harrisburg & Potomac R. R. v. Moore, 4 W. N. 532; act of Feb. 19, 1849, § 11, P. L. 83. In Graham v. R. R., 145 Pa. 504, the owner’s land was undivided at the time when the railroad company entered and built its railroad. Defendant’s appropriation invades neither the parcel of land west of the canal, nor such right of way or easement in the land formerly occupied by the canal, and therefore the injury, if any, suffered by plaintiff is but indirect and consequential — and for which there could be no recovery in this case under the rulings of this court in the cases of Penna. R. R. v. Lippincott, 116 Pa. 472; Penna. R. R. v. Marchant, 119 Pa. 541. The commonwealth acquired an absolute estate in perpetuity in the land taken and occupied for canal purposes: Western Penna. R. R. Co.’s Ap., 99 Pa. 155; Wyoming Coal & Tr. Co. v. Price, 81 Pa. 156; Com. v. McAllister, 2 Watts, 190; Haldeman v. Penna. R. R., 50 Pa. 425; Craig v. Allegheny City, 53 Pa. 477; Robinson v. West Penna. R. R., 72 Pa. 316. The several acts of assembly under which the state canals were constructed did not intend to divide the farms through which they passed into distinct parcels: Acts of Feb. 25, 1826, P. L. 55; April 9, 1827, P. L. 192; March 18, 1835, P. L. 75; March 7, 1843, P. L. 36. Railroads divide a farm into two distinct parts just as much as the state canals. But the estimate of damages in case of railroads, as in case of the state canals, has always been the difference in value between the tract taken as a whole before the construction of the railroad, and its value taken as a whole tract or farm after the construction of the road through it. Potts v. R. R., 119 Pa. 278, was an attempt to connect three pieces — quarry lot, shipping lot, and lot used for storage yard— though far apart, and used for distinct purposes, and claim damages for one whole. In Penna. Co. for Ins. on Lives v. R. R., 151 Pa. 334, the pieces were divided by a piece that belonged to another owner, lying between them, and no connection whatever was shown, except that the owner had a private way across the intervening piece.
157 Pa. 622Fick v. Pennsylvania R. R. (1893)Defendant appealed
Appeal, No. 14, Oct. T., 1893, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1891, No. 172, for plaintiff, A. F. Fick. Trespass by tenant, a hotel keeper, for damages by negligent construction and maintenance of culvert. At the trial, before Barker, P. J., when plaintiff was on the stand, he was asked: “ Q. What damage did this water cause to you as a tenant ? ” Objected to for the reason that it is irrelevant and immaterial, as the plaintiff has not alleged' in his declaration any damages of this character. By the Court: Our impression is tending towards the admission of testimony of this kind, if we could once satisfy ourselves as to the character of the damage claimed; but if it be, as has been suggested in the objection, for inconvenience or for discomfort or. other matters of that kind, it would clearly not be evidence in this action. But if for an injury to the freehold which he would be compelled either by a contract to repair, or that he would be liable for under the law, that he would be bound to replace, we think it would be evidence. We will permit this witness to describe the injury done to the house and rule subsequently as to whether it affects the tenancy or not. Exception. [6] The witness stated that water and mud got into the cellar and destroyed goods, etc. “ Q. Were any of the walks belonging to the premises washed away? ” Objected to for the reason that the walks were a part of the realty, and the plaintiff in this action being but a tenant, he would not be entitled to any damages that resulted in an injury to the property that he occupied, that only the owner of the property could bring such an action if an injury had been sustained. By the Court: The witness is permitted to testify to injuries to the private walks on the property within the inclosure, but not as to public board walks. Exception. [7] The witness stated that private walks were injured. The court charged in part as follows: “It seems that at the time of the construction of the Pennsylvania Railroad over the ground where the borough of Gallitzin now stands it was necessary to pass over a natural waterway or water channel in which water gathered from the vicinity and flowed northward. This the Pennsylvania Railroad Company had a perfect right to do under their charter; but it was their duty, in so doing, to construct a channel or culvert under and across their tracks sufficient to carry away that water in times of ordinary high water, [and, after constructing, it was their duty to keep it free and unobstructed, so that it would carry off the water in times of ordinary high water; and, failing to do this, they would be liable in damages to any one injured by reason of their failure. You will observe by this brief exposition of the law, which rve have stated to you now, so that you may understandingly consider the testimony, that the Pennsylvania Railroad Company had a right, under their charter, to build a railroad across this channel; that it was their duty when they did this to construct an artificial channel or culvert so that the embankments would not obstruct the natural flow of this water ; that in doing this they were only bound to provide for the ordinary high water, and not for extraordinary freshets ; and that in maintaining it they were bound only by the same rule, that is, to maintain it in such a condition that its capacity would be sufficient to carry away the water in ordinary high water, and not at times of extraordinary floods or other occasions for which they were not responsible and against which they could not provide by ordinary care and prudence. “ Now bearing in mind the law, as we have given it to you briefly, consider the evidence in this case and determine these questions : First, was this culvert sufficient to carry off the water in times of ordinary high water ? Second, did the defendants exercise ordinary care in keeping it open and in repairing it? And, in considering the question of their negligence or want of care, you will- consider the question as to whether ordinary care would have prevented the accumulation of the débris which it is alleged blocked up the channel. Third, you will consider, was the rainfall on the 19th of June, 1891, when it is alleged this injury occurred, extraordinary? Fourth, should you determine the first and second propositions or either of them in the negative, that is that the culvert was improperly constructed or improperly maintained, and the third in the negative, that the water was ordinary, then it would be your duty to determine from the evidence what damage the plaintiff sustained by reason of the negligence of the defendant.] ” [8] .... Plaintiff’s points were among others as follows: “ 4. That if the drift which ordinarily can be expected to flow down a stream during a freshet, was caught by obstructions placed across the natural water course by the defendant, thereby forming a dam and injuring the plaintiff’s property, the verdict should be for the plaintiff. Answer: If the defendant placed any obstruction in the culvert, otherwise properly constructed, of course they would be liable.” [1] “ 5. If the jury find that the defendant company, by reason of the construction of their road and culvert, caused the water during an ordinary freshet to overflow the plaintiffs land, the verdict should be for the plaintiff.” Affirmed. [2] Defendant’s points were among others as follows: “ 3. That if the jury believe from the weight of the evidence that the débris and rubbish that were carried down to the mouth of the culvert by the heavy rain-fall of June 19, 1891, from the properties lying above the property occupied by the plaintiff, and that the accumulation of the same at that point closed up and clogged the inlet or mouth of the culvert and thereby dammed the water back to and upon the property occupied by the plaintiff, he cannot recover any damages in this action ; and the verdict should bo for the defendant company. Answer : Affirmed, provided the defendants exercised ordinary care and prudence in keeping the inlet clear from débris. In order to find that, you must find that they were not negligent in keeping the opening unobstructed, as well as in constructing it of sufficient capacity originally. They would not be held to extraordinary care in this respect.” [3] “ 5. That if the barrels, kegs, boxes, wood, tin cans, and débris or rubbish placed upon the lots, streets or alleys within the'borough of Gallitzin, were either permitted or disregarded by the borough authorities, and the same or any part thereof would be, during heavy rain-falls, carried down to the mouth of the culvert to obstruct the current of water in the same, and that is what did happen and caused the water to back upon and overflow the premises occupied by the plaintiff and damaged his property, he cannot recover and the verdict must be for the defendants. Answer: We see nothing in this point not covered by our answer to the defendant’s third point.” [4] 10. Request for binding instruction. Refused. [5] Verdict and judgment for plaintiff for $450. Errors assigned were (1-5, 8) instructions; (6, 7) rulings on evidence; quoting instructions, bills of exceptions, and evidence. Huddleston v. West Bellevue Bor., 111 Pa. 110; Duncan v. Sherman, 121 Pa. 520; Peoples Savings Bank v. Denig, 131 Pa. 241; Swank v. Phillips, 113 Pa. 482; Schaeffer v. Jackson Twp., 150 Pa. 145; Chartiers Twp. v. Phillips, 122 Pa. 001; Keil v. Chartiers Valley Gas Co., 131 Pa. 466. Lawrence v. Great Northern R. R., cited in Angell on Water Courses, 6th ed. p. 644 ; Barklay v. Wilcox, 86 N. Y. 140; Kankakee R. R. v. Iioran, 131 Ill. 288; Miss. & T. R. R. v. Archibald, 67 Miss. 38; McCoy v. Danley, 8 Harris, 85; Bell v. McClintock, 9 Watts, 119 ; Duncan v. Sherman, 121 Pa. 520.
157 Pa. 627Mellon v. Shenango Nat. Gas Co. (1893)
Appeal, No. 42, Oct. T., 1893, by Charles Mane, subsequent lien creditor, from order of C. P. Lawrence Co., Dec. T., 1892, No. 53, in T. Mellon & Sons, Trustees, v. Shenango Natural Gas Co., dismissing exceptions to sheriff’s return. Exceptions to sheriff’s return.
157 Pa. 630Jennings, Beale & Co.'s Case (1893)
Appeals Nos. 93 and 107, Oct. T,, 1893, by W. N. Howard et al., and Benjamin F. Jennings etal., from order of C. P. Armstrong Co., March T., 1890, No. 8, sustaining exceptions to the account of William N. Howard, Benjamin F. Jennings and James Hemphill, liquidating trustees of Jennings, Beale & Co., Limited. Exceptions to account of liquidating trustees of limited partnership association.
157 Pa. 637Coopersdale Election (1893)
157 Pa. 644Commonwealth v. Fleming (1893)
Appeal, No. 162, Oct. T., 1893, by Commonwealth, to use of Caroline E. Porter, administratrix of John J. Porter, deceased, from order of C. P. Beaver Co., March T., 1893, No. 339, discharging rule for judgment for want of sufficient affidavit of defence, in favor of defendants, J. Kidd Fleming, Cochran Fleming and M. S. Quay. Rule for judgment for want of sufficient affidavit of defence. Rule discharged. Before Wickham, P. J. Error assigned was discharge of rule. In the Supreme Court the appellee moved to quash the appeal on the ground that the record showed that no exception was taken nor'allowed. Appellant filed the following affidavit and certificate in reply to the motion to quash: “ Thomas M. Henry and David S. Naugle, attorneys for appellant, being sworn according to law depose and say that the above cause came on for an argument by order of the court on Saturday, June 17, 1893, at which time the motion for judgment for want of a sufficient affidavit of defence was overruled; that the aforesaid affiants called at chambers on the evening of June 17, 1893, the day the motion was argued, and asked the court — Hon. J. J. Wickham, P. J. — to seal a bill of exceptions, at which time the judge suggested his inability to do so for the reasons that no exceptions had been asked for in open court, that court had then adjourned and that counsel for defendant was not present. Court having adjourned on said June 17th until the 28th following, at which time this cause was fixed for trial, the plaintiff had no opportunity to ask for an exception in open court after the day of argument until the day of trial.” “ October 5th, 1893. At the request of plaintiff’s counsel, I hereby certify that the facts as set forth in above affidavit, are true. I further certify, at request of defendants’ counsel, that the counsel on both sides were present in open court, when the order refusing judgment, etc., was made, and that no exception has ever been filed to such order by permission of the court, or the judge thereof. “ John J. Wickham, President Judge.” cited on the motion to quash, Mehring v. Commonwealth B. & L. Association, 17 W. N. C. 422; Watson v. Supplee, 14 W. N. C. 452; Titusville B. & L. Association v. McCombs, 92 Pa. 364.
157 Pa. 646Fuller v. East End Homestead Loan & Trust Co. (1893)