178 Pa.

Volume 178 — Pennsylvania State Reports

80 opinions

178 Pa. 1Metzger v. Borough of Beaver Falls (1896)Reversed
Appeal, No. 119, Oct. T., 1895, by plaintiff, from decree of C. P. Beaver Co., March T., 1895, No. 1, on bill in equity. Bill in equity to restrain the construction of waterworks by a borough. Before Wickham, P. J. The bill was filed by a citizen and taxpayer of Beaver Falls to restrain said borough from proceeding to erect waterworks when it was already supplied with water in pursuance of a contract between the borough and the Union Water Company. The court refused the injunction on the ground that the borough was vested with power to contract, own and operate waterworks irrespective of the effect on the Union Water Company. Plaintiff appealed. .... Further facts appear by the opinion of the Supreme Court. Error assigned was decree refusing injunction. The borough has no power hi this behalf beyond what is delegated to it by the commonwealth. Its sole power is, in the language of the statute, “ to provide a supply of water for the use of the inhabitants.” This has been done. The inhabitants are supplied by the authority executed by other .means. The duty of the borough has been thus executed. Its power has been supplanted and suspended. It has no authority to erect waterworks at the expense of taxpayers while such other means are ■operative : Grand Rapids Light & Power Co. v. Light & Fuel Co., 33 Fed. Rep. 659; Barnes v. District of Columbia, 91 U. S. 540; In re Phila. & Trenton R. R., 6 Whart. 25. Corporate grants must be strictly construed: Minturn v. Larue, 23 How. 436; Penna. R. R. v. Canal Comm’rs, 21 Pa. 9; Cooley, Const. Lim. 195. Prima facie, municipal functions must be confined to matters of government: Holmes v. Shreveport, 31 Fed. Rep. 113; Western Savings Fund Society v. Philadelphia, 31 Pa. 185; Philadelphia v. Fox, 64 Pa. 169; Bank of U. S. v. Bank of Georgia, 9 Wheat. 904; Wimer v. Worth Twp., 104 Pa. 317; Dillon, Mun. Corp. sec. 91, p. 119; Detroit v. Detroit City Ry., 56 Fed. Rep. 867; Wright v. Nagle, 101 U. S. 791; Pittsburg’s App., 115 Pa. 4. The water company derives its right not 'from the borough but from the state: Chicago City Ry. v. People, 73 Ill. 541; Com. v. Erie & N. E. R. R., 27 Pa. 339; Brymer v. Butler Water Co., 172 Pa. 489; Com. v. Russell, 172 Pa. 506. Under the laws of Pennsylvania, it has never been denied that municipal corporations have the power to construct, maintain-and operate systems of waterworks and so provide a supply of water for the borough and its inhabitants: Wheeler v. Phila., 77 Pa. 338; Lehigh Water Co.’s App., 102 Pa. 515; Howard’s App., 162 Pa. 374. And this construction is in harmony with that of the courts of other states wherein similar statutory provisions exist: Rome v. Cabot, 28 Ga. 50; Livingston v. Pippin, 31 Ala. 542; Hardy v. Waltham, 3 Met. (Mass.) 163. The borough and the water company stand upon the same footing as two corporations of the same character, granted like powers, to be exercised in the same locality, neither grant being exclusive: Atlantic City Water Works v. Consumers’ Water Co., 44 N. J. 437; Luzerne Water Co. v. Toby Creek Water Co., 148 Pa. 568; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650 ; New Orleans Water Works Co. v. Rivers, 115 U. S. 674; Louisville Gas Co. v. Citizens Gas Co., 115 U. S. 683; Brenham Water Co. v. Brenham, 67 Texas, 542; Charles River Bridge v. Warren Bridge, 11 Peters (U. S.), 420; Syracuse Water Co. v. Syracuse, 116 N. Y. 167; Thompson Houston Electric Co. v. Newton City, 42 Fed. Rep. 723; Lehigh Water Co. v. Easton, 121 U. S. 388; Reid v. Smoulter, 128 Pa. 324; Grand Rapids E. L. & P. Co. v. Grand Rapids E. E. L. & F. G. Co., 33 Fed. Rep. 677. The legislature cannot interfere with power of boroughs to supply water: Cronise v. Cronise, 54 Pa. 255; Com. v. Clark, 7 W. & S. 127; Penna. R. R. v. Canal Commissioners, 21 Pa. 9; Dugan v. Bridge Co., 27 Pa. 303; Com. v. Erie North East R. R., 27 Pa. 339; Southwark R. R. v. Phila., 47 Pa. 323; Susquehanna Canal Co. v. Wright, 9 W. & S. 11; Monongahela Nav. Co. v. Coons, 6 W. & S. 113; Bank of Penna. v. Com. 19 Pa. 155; Foltz’s App., 56 Pa. 413; Pittsburg etc. R. R. v. Allegheny County, 63 Pa. 126; Diligent Fire Co. v. Comm., 75 Pa. 291; North Penna. R. R. v. Stone, 16 Leg. Int. 174; Wright v. Nagle, 101 U. S. 791; Ruggles v. Illinois, 108 U. S. 536; Chicago Fire Ins. Co. v. Needles, 113 U. S. 574; Cains v. Coates, 51 Miss. 335; State v. Denny, 118 Ind. 449; East St. Louis v. Wehrung, 50 Ill. 28; Howard’s App., 162 Pa. 374. on behalf of the borough of Rochester which was interested in and affected by the question involved, and to be decided in this case.
178 Pa. 6Imbrie v. Manhattan Life Insurance (1896)Affirmed
Insurance — Life insurance — Authority of agent — Taking promissory note for premium where policy requires cash — Ratification. A policy of life insurance provided that the premiums should be paid in cash, and stipulated that no provision of the contract could “ be changed or waived except by written agreement signed by the president or secretary of the company.” The insured gave his promissory note to the agent, and the company subsequently took the note with other notes in settling a balance against the agent. The company claimed that it took the note merely as collateral security for the amount of the balance due by the agent. The agent testified that he took the note as payment from the insured, and that he gave it to the company in part payment of his balance'. Before the note matured the company, with knowledge that it was outstanding, notified the insured to pay the premium for the ensuing year. Held, that the question as to whether the company had ratified the act of the agent in taking the note was for the jury.
178 Pa. 16Imbrie v. Ins. Co. (1896)Affirmed
178 Pa. 17Brown v. Pettit (1896)Reversed
Appeal, No. 381, Jan. T., 1896, by defendants, from judgment of C. P. McKean Co., June T., 1894, No. 222, on verdict for plaintiff. Assumpsit on a promissory note. Before Mobbison, J. HISTOBY OE THE CASE. The defendants, John S. Davis and Webb Evans, were partners under tbe firm name of Davis & Evans, in a general merchandising business at Kane, in McKean county, Pennsylvania, in 1892 and 1893, and J. L. Brown, the plaintiff and appellee, was at the same time doing a private banking business at Wilcox, Elk county, Pennsylvania. Kane and Wilcox were ten or twelve miles apart, connected by railroad and telegraph, and with mail communication three times a day. On January 17, 1893, Evans presented at the banking house of Brown, the plaintiff, a note for $1,250, drawn by himself to the order of Davis & Evans and by them indorsed. It was also indorsed “Joshua Davis.” John S. Davis, the partner of Evans, was wholly ignorant of the transaction until after the note in suit — which was a renewal of the original note discounted January 17, 1893 — became due April 4,1894. Tbe proceeds of this original note were, at Evans’ request, placed to Ms individual account on the books of the bank and were used by him for his individual purposes. No part of the proceeds was used in the business of the firm of Davis & Evans. The written portion of the body of the note in suit, and the indorsement “ Davis & Evans,” were in the handwriting of Evans, and the indorsement, “Joshua Davis,” was a forgery. Other facts appear by the opinion of the Supreme Court. The court gave binding instructions for plaintiff. Yerdict and judgment for plaintiff for $1,406,37. Defendants appealed. Error assigned among others was binding instructions for plaintiff. The circumstances were such as to invite inquiry, and, the appellee, having failed to inquire, bad faith on his part is to be implied, and his claim to be a bona fide holder thereby defeated: Smith v. Harlow, 64 Me. 510; 2 Randolph on Commercial Paper, 999: Merritt v. Northern R. R., 12 Barb. (N. Y.) 605; Tanner v. Hall & Easton, 1 Pa. 417; Hendrie v. Berkowitz, 37 Cal. 113; Wood’s Byles on Bills and Notes, 101; Miller v. Manice, 6 Hill (N. Y.), 114; N. Y. Fireman Ins. Co. v. Bennett, 5 Conn. 574; Miller v. Consolidated Bank, 48 Pa. 514; Haldeman v. Bank of Middletown, 28 Pa. 440; Central Nat. Bank v. Frye, 20 N. E. Rep. 325. The plaintiff in this case is a bona fide holder of a negotiable note for value before maturity, and the only thing that can defeat his recovery will be bad faith on his part, and the burden to prove this bad faith is on the defendants, and they have not done it in this case. And even though it should be shown that the plaintiff took the note under circumstances which ought to have excited the suspicion of a prudent man, it would not prevent recovery: Phelan v. Moss, 67 Pa. 59; McSparran v. Neeley 91 Pa. 17; Bank v. Morgan, 165 Pa. 199; Richards v. Monroe, 85 Iowa 359; Kitchen v. Loudenback, 48 Ohio, 177; Breckenridge v. Lewis, 84 Me. 349; Farrell v. Lovett, 68 Me. 326; Ihmsen v. Negley, Mohan & Co., 25 Pa. 297; Miller v. Consolidated Bank, 48 Pa. 514; 1 Cook on Stock and Stockholders, 442; Goodwin v. Am. Nat. Bank, 48 Conn. 550; Moorehead v. Gilmore, 77 Pa. 118; Potts v. Taylor, 140 Pa. 601.
178 Pa. 23Dauler v. Hartley (1896)Affirmed
Appeal, No. 87, Jan. T., 1896, by J. M. Campbell, from decree of C. P. Bedford Co., Feb. T., 1891 No. 1, on bill in equity. Bill in equity for an account and injunction. The case was referred to J. G. Bussell, Esq., as master and examiner. The master found that the plaintiffs and the defendants all resided in Bedford County, Pennsylvania, at the time of the transactions in controversy, except J. M. Campbell, who resided in Pittsburg, and carried on the business there of a general broker in stocks, grains, etc. He had special wires under an arrangement with a telegraph company, which he hired out to persons in various parts of the country who were engaged in the business of brokers. About the beginning of July, 1891, George W. Kirk opened a room called the stock exchange in the borough of Bedford, Pa., which was continued until the beginning of December following, in which were posted the daily market quotations on stocks, produce and the like. The plaintiffs went to this room and there engaged in buying and selling said articles on the belief and representations of said Kirk that he was the operator at Bedford for the said J. M. Campbell, and that all transactions by them were had with Campbell through Kirk. In the purchase or sale of stock, grain and the like, any of the plaintiffs directing sales or purchases placed certain sums as margins in the hands of said Kirk under the distinct agreement with Kirk and J. G. Hartley & Co. that Kirk would deposit the money with J. G. Hartley & Co., bankers, as holders for all the parties interested; that the money was to be put to the account of J. M. Campbell, but said account was a conditional one; the funds were not to be withdrawn from the bank or paid over to Campbell without the consent of the parties who advanced the same, nor until the transactions were closed according to the conditions of the sale or purchases on which the moneys were staked, and tbe bank so received tbe money and agreed to so hold the funds. The amount of money paid in as margins or advanced as above by the different plaintiffs was as follows: by Dauler, $1,745; by Hartley, $315; by Hartley and Taylor, $3,120; by Shoemaker, $560; by McNamara, $530; by Boor, $320. The balance in the bank of J. G. Hartley & Co. on November 30, 1891, was $6,384.48. The other facts which are material to an understanding of this case appear by the opinion of the court below. The master made a pro rata distribution of the balance in bank among the plaintiffs. The court, Longenecker, P. J., filed the following opinion : The findings of fact and law by the master do not appear in consecutively numbered paragraphs, as is usual under our rule of court, but are found in the form of answers given in response to requests from both sides. This, though not the most convenient arrangement, seems to comply substantially with the equity rules adopted January 15, 1894. While there is some conflict between the bill and answer and in the testimony, it does not seriously affect the material questions upon which, as it seems to us, the case must be determined. In stock gambling transactions, like these, it is not strange the participants should differ as to the terms on which they dealt. From Campbell and Kirk down to the last customer they did not pretend to own a dollar’s worth of the commodities in which they assumed to be dealing. Nothing was actually bought or sold in Bedford or elsewhere, but it was a mere matter of wagers, of bookkeeping and the adjustment of .balances. The master finds in answer to the plaintiffs’ request, that Campbell “ acknowledges that he took the trades himself and did nothing towards investing the funds he received in the articles which were supposed to be bought and sold.” The business was, therefore, all confined to the little circle made up of Campbell, Kirk and their customers at Bedford. The profit of one was the loss of another of their number. Each party negotiated with reference to keeping its grasp on the fund, against the inevitable day of reckoning, which was sure to come under such a state of business. Distrusting each other, they each sought to so frame the papers and arrange for the security of the deposits as to guard against the other controlling them. It was a scramble for advantage, in which they could not be expected to agree as to the precise terms of contract. Upon one thing, however, all are agreed; namely, that so far as the fund now in dispute is concerned, it represents the pure, unmixed margins arising on their stock gambling transactions. This is asserted as to the nature of the business in the bill and answers; is sworn to by all the witnesses, contended for in the requests and points submitted to the master on both sides, found by him and again bitterly insisted upon on the final argument. It is denied by no one, and may be accepted as a settled fact. Another matter which is clear of controversy is the fact that the fund is not in the hands or control of either of the contending parties, but in the banking house of J. Gf. Hartley & Co., a third party, which however has no interest in the results of the ventures or the fund itself. The plaintiffs placed it there in the form of stakes or margins, and now seek to recover it. Campbell concedes this, but resists a recovery on the ground that it belongs to him as the result of his winnings and because the greater portion of it was credited to his name on the books of the bank. The main contention of the counsel for defendants is that the claim of the plaintiffs rests on an illegal foundation, on transactions which are against the policy of the law, and that the presentation of their case involves a disclosure of this fact, and hence a court will not lend itself to aid them, but will leave them where it finds them. This would clearly be so if there had been a final execution of the wagers by payment to the winner. It is not necessary to refer to the multitude of authorities sustaining this well recognized doctrine. But we think it is as well settled that so long as the money remains in the possession of a third party, who confessedly has no right to retain it, the party placing it there may recover it. This is especially true when notice of the desire to do so is given before the event occurs upon which it is staked. It has not, of course, been usual in operations on margins, to place the wager with a stakeholder, and hence no precedent is found in the books of an effort to recover margins from such a depositary. But here the parties selected one, who now has the fund in litigation. The master expressly finds in answer to the defendants’ 11th point that the bank was a “stakeholder,” and in this we think he was fully sustained. Kirk testified that the money was to be held in the bank for the use of the people who put it in, and the plaintiffs and bank officer all say that the bank was designated to perform that office between the parties. A “ stakeholder ” is defined in the Century Dictionary to be “ in law, one holding a fund which two or more claim adversely to each other.” In Rapalje and Lawrence’s. law dictionary, “ stakeholder primarily means a person with whom money is deposited pending the decision of a bet or wager (q. v.), but it is more often used to mean a person who holds money or property which is claimed by rival claimants, but in which he himself has no interest.” In the 23 Am. & Eng. Ency. of Law, p. 18, “ a stakeholder is a depositary for both parties of money advanced by them, respectively, with a naked authority to deliver it over upon the proposed contingency. He is not regarded as a party to the illegal contract.” Can the plaintiffs recover back the margins deposited with Hartley & Co. ? It has been repeatedly held that while the stake continues in the custody of the holder, it may be sued for. “ When the action is against the stakeholder before its payment and after notice not to pay it over, the money may be recovered back:” Cotton v. Thurland, 5 Term R. 406. In McAllister v. Hoffman, 16 S. & R. 147, Gibson, C. J., said, “ The result of the authorities undoubtedly is, that the loser may withdraw his stake at any time before actual payment to the winner.” And this he asserts of wagers void only at common law and without reference to statutory enactments. In the case of Forscht v. Green, 53 Pa. 138, a recovery from a stakeholder was had, though notice not to pay to the winner was given only after the event had taken place. It being an election bet, the court held he could then sue for his money, and that he could have done so prior to the act of 1839. The rule is thus stated in the elaborate note to Godsall v. Boldero, 2 Smith’s Leading Cases, part 1, 8th ed., page 319, “ But it is held in general, that so long as the money staked on the result of a wager, remains in the hands of a stakeholder, it belongs to the person from whom it came, and may be withdrawn by him, notwithstanding the loss of the bet, and without the consent of the other party to the contract. A notice not to pay will operate as a countermand of the authority implied by the original deposit, and a subsequent payment will be no defense to an action for money had and received.” It further states, “ the law was so held in Vischer v. Yates, 11 Johns. (N. Y.) 23, and although this decision was overruled by Yates v. Foot, 12 Johns 1, it is sustained by the course of decision throughout this country, which establishes that the position of the stakeholder in such cases, is that of a mere agent or bailee,” etc., and the views thus expressed are then fortified by the citation of numerous authorities. “ If the authority is actually revoked before the money is paid over, it remains a naked deposit to the use of the depositor : ” Shaw, C. J., in Ball v. Gilbert, 12 Met. (Mass.) 397. In Stacy v. Foss, 19 Me. 335, it was held immaterial that the notice to the stakeholder came after the happening of the event on which the wager depended, so it was before payment to the winner. And to the same effect is Gilmore v. Woodcock, 69 Me. 118; s. c. 31 Am. Rep. 255. “The rule is general, both in England and this country, that when a wáger is made and the stakes are deposited with the stakeholders, either party may, at any time before the .result is ascertained and the money paid over to the winner, withdraw from the illegal transaction, notify the stakeholder and demand and recover his deposit money: ” Lewis v. Bruton, 49 Am. Rep. 816 (74 Ala. R. 317), and cases there cited. In Wilkinson v. Tousley, 10 Am. Rep. 144, (16 Minn. Rep. 299), it is said, “ The other question presented by the case at bar is, whether money bet upon an illegal wager can be recovered by the loser of the stakeholder, if before paying it over to the winner, the stakeholder has been notified by such loser not to pay it over and the loser has demanded its repayment to himself. There is a remarkable approach to unanimity in the authorities in answering this question in the affirmative,” citing a large number of authorities. The case of Deaver v. Bennett, 26 Am. St. Rep. 415, (29 Neb. Rep. 812), contains the following in the opinion of the court: “ At common law, where the wager is illegal, either party may claim the money deposited by him, from the stakeholder, even after the wager is decided against him, if the demand is made before tbe money is actually paid oyer.” To tbe same effect was the case of Riddle v. Perry, 19 Neb. Rep. 505. The same doctrine is also clearly announced in Bernard v. Taylor, 37 Am. St. Rep. 693. A. C. Freeman, Esq., the compiler of the American Decisions, in his note.to the case of Downs v. Quares, 12 Am. Dec. 339, says, “ It is the universally accepted doctrine that no action in affirmance of an illegal wager can be maintained, but that actions which proceed upon a disaffirmance of the contract as illegal and void may be sustained while the contract is executory. Under the English decisions, which have been followed in most of the United States, the contract is considered executory until the money depending upon the result of the wager has been actually paid to the winner. In accordance with this view, where the articles wagered are placed in the hands of a stakeholder, the determination of the event does not execute the contract, and an action on the part of the loser will lie to recover what he has deposited with the stakeholder.” “ Winch of the parties is the more blamable, is quite immaterial : ” Spring Company v. Knowlton, 103 U. S. 60. See also, Seigel v. Funk, 3 Pitts. R. 28. These authorities, together with Alford v. Burke, 68 Am. Dec. 457; Hardy v. Hunt, 70 Am. Dec. 788; Tarleton v. Boher, 44 Am. Dec, 360; App v. Coryell, 3 P. & W. 494, and Conklin v. Conway, 18 Pa. 329, cited by the master, seem to sustain quite fully the right of the depositor to recover his stake at any time before it has really passed into the hands of the winner. And as the law puts operations in mere margins on the same footing as other wagering contracts, we think the foregoing authorities apply with equal force to the case at bar. The right to recover is not dependent on statutory authority, as was contended by counsel for the defendants on the argument. But the defendants say that after the checks had been given and deposited by Kirk in the bank, to the credit of Campbell, matters had progressed so far that the plaintiffs could not dis-affirm their contracts; that they were in fact executed. From the foregoing statements of the law it seems however that a contract of this character is executed only when the successful party gets the money in his grasp. There are no equities operating in his favor to give him title short of that. No innocent third persons are affected by these dealings. The checks never passed beyond the stock gamblers. And as the contracts themselves were utterly -void, are not all checks, accounts and papers relating to them void as well ? The Supreme Court of our state said, in Lloyd v. Leisenring, 7 Watts 294, in approving Smith v. Mitchell, 1 Binn. 110, “ The doctrine is laid down, that all contracts which have for their object anything which is repugnant to justice or against the general policy of the common law or the provisions of a statute are void; and where a contract or agreement is entered into with a view to violate any of their principles or provisions, there is no form of words, however artfully introduced or admitted, and no evidence of contract which ingenuity can suggest, which will give effect to a contract, expressly prohibited or declared null and void.” Harper v. Young, 112 Pa. 419, is a case in which a negotiable note, given in a gambling transaction, was held void though in the hands of an innocent holder for value ; and in the case of Griffith v. Sears, 112 Pa. 523, a bond given by way of margins, for the adjustment of differences in stock gambling, was held void. The same rule was applied to a promissory note given to a broker to satisfy losses arising from stock gambling operations in the case of Gaw v. Bennett, 153 Pa. 247. “ When an instrument is absolutely void in its creation, it cannot be made valid by any subsequent transaction immediately arising out of it. It is not like a security given by an infant, which is only voidable: ” Woodson v. Barrett, 3 Am. Dec. 614. A check given for a gaming consideration was held void in Fuller v. Hutchings, 70 Am. Dec. 746; Williams v. Judy, 44 Am. Dec. 699, and Edgell v. McLaughlin, 6 Wh. 176. See also Cunningham v. Nat. Bk. of Augusta, 51 Am. St. Rep. 266. How can the checks in this case be held effective to transfer the fund as between parties to the illegal dealings ? That they were void and worth no more than so much blank paper cannot be disputed. And are the book entries' in relation to them, made by the bank officials with full knowledge of the character of the transactions, of more value for that purpose? Jurisdiction of the bill in this case was originally entertained by our predecessor on the bench, and we afterwards refused to dissolve the preliminary injunction granted by him. It has been strenuously urged that it is not a case for equity jurisdiction, and that if the plaintiffs have a remedy at all it is at law. In the closing lines of the 15th paragraph of the amended bill it is alleged, with an air of ingenuous artlessness, that “ the paying over of said money to said Kirk or Campbell by said bank would be a fraud on the said complainants, contrary to law and equity, prejudicial to the interests of the community, against public policy and the rights of the individuals concerned.” Better grounds for the intervention of an equity court are, we think, assigned in the 17th paragraph. Besides, in addition to the reasons given by the master for entertaining equity jurisdiction, the fund is insufficient 'to pay all the depositors in full, as his distribution shows, and if each had brought his suit at law, Inis pro rata share could not have been arrived at in a separate action. If the plaintiffs are entitled to recover the fund in controversy, we think they are in the right court. “ Chancery has jurisdiction to restrain the enforcement of an unexecuted and illegal wager contract: ” Patillon v. Hipple, 32 Am. Rep. 31. That was a bill in an Illinois court to restrain a stakeholder from paying over the stakes. Woodson v. Barrett, 3 Am. Dec. 612, supra; Davidson v. Givins, 4 Am. Dec. 695; Clay v. Fry, 6. Am. Dec. 654, were all cases in equity to restrain the collection of paper founded on gaming considerations: 2 Pomeroy’s Éq. Juris, section 939, etc. Having jurisdiction it was the master’s duty to determine the whole matter, as he did, by a pro rata distribution of the fund to those who had contributed to it. Entertaining these views, we overrule the exceptions to the report of the master and confirm his report. Error assigned was decree of the court. The court should have dissolved the injunction: Machette v. Hodges, 1 Brewster’s Rep. 316; Carpenter v. Burden, 2 Parsons’ Eq. 27; Dull v. Holl, 1 Phila. 259; McVeagh v. Brindle, 5 Lancaster, 26; Huston v. Huston, 1 W. N. C. 26; Hilliard on Inj. 109, par. 40; Berlew v. Illuminating Co., 1 Pa. C. C. 651; Lutz v. Lutz, 34 P. L. J. 260; Bedford v. Potter, 9 Phila. 560; Hopkinson v. Mortimer, 1 W. N. C. 139; 2 Selling on Ex. Remedies, par. 1056; Brewster’s Eq. Prac. p. 421. The injunction was improvidently granted. An injunction will be refused till the court are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done: Harkinson’s App., 78 Pa. 203; Brown’s App., 62 Pa. 17; Kelley v. City, 53 Leg. Int. 234; Minnig’s App., 82 Pa. 373; Hoffman’s App., 10 W. N. C. 401; McCall v. Barrie, 14 W. N. C. 420. The claim'of plaintiffs is not within the jurisdiction of a court of equity: 1 Story’s Eq. p. 315; Ham v. Smith, 87 Pa. 66; 2 Pomeroy’s Eq. 454; Patterson’s App., 13 W. N. C. 154; Holt v. Green, 73 Pa. 198 ; 6 Am. & Eng. Ency. of Law, 708; Evans v. Dravo, 24 Pa. 62; 1 Story’s Eq. sec. 294; Hershey v. Weiting, 50 Pa. 244; Bredin’s App., 92 Pa. 241; 1 Pomeroy’s Eq. 343; Allebach v. Hunsicker, 132 Pa. 349; Stewart v. Parnell, 147 Pa. 523; Harbaugh v. Butner, 148 Pa. 274; Merryman v. Stock Ex., 1 Pa. C. C. 478; Smaltz’s App., 99 Pa. 132; Hilliard on Injunction, 217; Grey v. Ohio & Penna. R. R. Co., 1 Grant, 412; Richard’s App., 57 Pa. 105; Bispham’s Eq. (ed. 1882) page 54; Gallagher v. R. R., 38 Pa. 102; Smaltz’s App., 99 Pa. 310; Edelman v. Latshaw, 159 Pa. 644; McGowin v. Remington, 12 Pa. 56; Bridesburg Mfg. Co.’s App., 106 Pa. 275; De Zouche v. Garrison, 140 Pa. 430; Dohnert’s App., 64 Pa. 311; Bechtel v. Sheafer, 117 Pa. 555. Kirk was not Campbell’s agent: Wharton on Agency, 114; Underwriters Association v. George, 97 Pa. 238; Union Refining Co. v. Bushnell, 88 Pa. 89. Hartley & Company were not stakeholders for plaintiffs of the money standing to the credit of Campbell in their bank. Campbell’s right to these funds cannot accrue on terms different from those made with Kirk: Kelsey v. Nat. Bank of Crawford Co., 69 Pa. 426; Mundorff v. Wickersham, 63 Pa. 89; Stephenson v. Grim, 100 Pa. 73; Jones v. Nat. Building Association, 94 Pa. 215; Sunbury Fire Ins. Co. v. Humble, 100 Pa. 499. Plaintiffs may show for whose actual use the Campbell account was kept: Patterson v. Marine Nat. Bank, 130 Pa. 419; Hemphill v. Yerkes, 132 Pa. 545; Burger v. Burger, 135 Pa. 499. Deposits were made under terms of the agreement of the depositors, Kirk, and the bank. J. G. Hartley & Co. were stakeholders of these funds: Tarleton v. Boher, 44 Am. Dec. 358; Wharton on Contracts, ed. 1882, sec. 352; Nace v. Boyer, 30 Pa. 110; Alford v. Burk, 68 Am. Dec. 449; McKee v. Manice, 11 Cushing, 358; Vischer v. Yates, 11 Johns, 23; Conklin v. Conway, 18 Pa. 329; Forscht v. Green, 53 Pa. 140; Hardy v. Hunt, 70 Am. Dec. 787; Downs v. Quarles, 12 Am. Dec. 338; Clay v. Fry, 6 Am. Dec. 654; Moore v. Tripp, 20 N. J. 263; Ruchinzky v. De Haven, 97 Pa. 202; 8 Am. & Eng. Ency. of Law 899; Wharton on Contracts, 641; Repplier v. Jacobs, 149 Pa. 167. The remedy is in equity: Harrisburg Nat. Bank v. Hiester, 2 Pierson, 256; Adams v. Beach, 1 Phila. 99; Wharton on Contracts, sec. 454; Aycinena v. Peries, 6 W. & S. 243; Harper’s App., 109 Pa. 9; Bitting’s App., 105 Pa. 517; Electric Co.’s App., 114 Pa. 574; Wesley Church v. Moore, 10 Pa. 280; Kirkpatrick v. McDonald, 11 Pa. 393; Yard v. Patton, 13 Pa. 282; Socher’s App., 104 Pa. 615; Riegel v. Am. Life Ins. Co., 153 Pa. 147.
178 Pa. 38Rutherford v. Pennsylvania Midland Railroad (1896)Affirmed
Receivers — Receivers' certificates — Railroads. While the court will not ordinarily make a decree authorizing the issue of receivers’ certificates for the completion of an unfinished railroad, such a decree is proper where it is made at the request of the president of the company with the approval of the holders of ninety-six per cent of the bonds, and the decree provides that it shall be without prejudice to the nonconsenting bondholders. Receivers — Receiver's certificates— Creditors. Creditors of a railroad company whose claims for material and labor accrued more than six months prior to the appointment of a receiver for the company, have no standing to object to the issuance of receiver’s certificates for the payment of claims for materials and labor which accrued within six months prior to the receivership.
178 Pa. 43Estate of Kuhlman (1896)Reversed
Appeal, No. 73, July T., 1895, by William Rebfuss, from decree of O. C. Lancaster Co., dismissing exceptions to auditor’s report. Exceptions to report of auditor, W. W. Franklin, Esq. Philip Kuhlman, the decedent, an aged citizen of Lancaster, died December 12,1890. He was a widower, and he left as his heirs and legatees three children, Michael, Bernhard (also called Benjamin) and Louisa, intermarred with William Rehfuss, the accountant, who was appointed his executor.
178 Pa. 50Strohl v. Borough of Ephrata (1896)Reversed
Equity — Finding of facts — Appeals—Practice. A finding of facts by the court below in favor of plaintiff in an equity case will be accepted as conclusive by the Supi’eme Court where the defendant takes no appeal, and the plaintiff who is the appellant makes no complaint of the finding. Boroughs — Streets—Turnpikes—Sewers—Injunction—Acts of May 22, 1883, and May 16, 1891. The purpose of the act of May 22, 1883, P. L. 39, was to extend the ordinary jurisdiction and authority of a borough over its streets for the purposes enumerated by the act, to turnpike roads lying within the borough limits. The act does not contain any grant of power to condemn private property for the construction of drains and sewers except upon the line of turnpike roads. Although the act of May 16,1891, P. L. 75, by its express terms includes the subjects of sewers, and ditches or drains, open or covered, the proceedings under the act must conform to the requirements therein prescribed, other wise a court of equity will restrain the borough from appropriating land. Where a borough adopted a natural water course for drainage purposes, and subsequently, for a consideration, permitted the owner of the land to close it.up, the borough can only reopen it by proceedings de novo under the act of May 16, 1891, and not by a mere resolution of councils. In such a case as the water course had been abandoned, the act of June 8, 1891, P. L. 210, relating to existing streams and water courses had no application.
178 Pa. 57Shreiner v. Shreiner (1896)Reversed
Appeal, No. 147, Jan. T., 1896, by plaintiffs, from judgment of C. P. Lancaster Co., March T., 1893, No. 49, on verdict for defendant. Issue devisavit vel non. Before Livingston, P. J. Maria Shreiner, the testatrix, died on April 9, 1892, aged seventy-nine years. Her will was written by a prominent member of the Lancaster bar, and executed by her J une 30,1887, the attesting witnesses being leading merchants of Lancaster city, who knew her well. In her will she mentioned all of her children by name, and left the greater portion of the share of the contestant to her executors (who are also children) in trust; Mary E. Shreiner, the contestant, being a daughter, a maiden lady, who at the time of the trial was fifty-seven years of age. The testatrix was a widow from 1879 to the time of her death. She had been engaged in business during the more active period of her life, and had accumulated a considerable estate, which she managed prudently and left as an inheritance for her children and grandchildren. Other material facts appear by the opinion of the Supreme Court. The court charged in part as follows: [It is, therefore, necessary that a testator at the time he makes and executes his will should be possessed of a sound mind. And a testator of sound mind has the right to do as he deems best with his own property, to prefer one child to another, or disinherit one or more at his discretion. The court, in such cases, will not interfere with this statutory dominion for slight causes in order to produce equality where such testator has seen fit to make inequality. A sound mind has been defined to be a mind wholly free from delusion.] [3] Plaintiffs’ points and answers thereto among others were as follows: 11. There is no evidence of want of testamentary capacity at the time of giving instructions for the will in question or the time of the execution thereof sufficient in law to justify a verdict against said will, and the verdict of the jury on said question-should be in favor of the plaintiffs. Answer: Our answer to' that is, the jury have heard all the evidence with reference to the facts presented in this point, and we submit it to them to answer by their verdict. [2] 12. Under all the evidence the verdict should be in favor of the plaintiffs. Answer: That point we refuse. The fact is for the jury, and we have no authority to decide. [1] Defendant’s point and answer thereto among others were as follows: 2. If the jury believe from all the evidence that Maria Shreiner at the time she executed the. paper in issue, by reason of mental infirmity, no matter how produced, was unable to fully comprehend the nature of her act, the amount and character of her estate, and the objects of her bounty, so as to make an in telligent disposition of her property, the verdict must be in favor of the defendant. Answer: That we say is true, and affirm that point. [4] Verdict and judgment for defendant. Plaintiffs appealed. JSrrors assigned among others were (1-4) above instructions, quoting them. The evidence offered is not in our opinion so strong as that presented in Eddey’s App., 109 Pa. 406, where the court refused to direct the issue. Neither are the facts as strong as in Comb’s and Harkinson’s App., 105 Pa. 155. The facts in this case are somewhat similar to Miller v. Oestrich, 157 Pa. 264. Neither age nor sickness, nor extreme distress or debility of body will affect the capacity to make a will, if sufficient intelligence remains: Wilson v. Mitchell, 101 Pa. 495. Partial unsoundness not affecting the general faculties and not operating on the mind of the testator in regard to the testamentary disposition, is not sufficient to make a person incapable of making a will: Pidcock v. Potter, 68 Pa. 342; Boyer’s App., 166 Pa. 630; Rodger’s Est., 19 W. N. C. 383; Cauffman v. Long, 82 Pa. 72; Pensyl’s App., 157 Pa. 465; Douglass’ App., 162 Pa. 567; Herster v. Herster, 122 Pa. 264; Cameron’s Est., 3 Dist. Rep. 101; Horne v. Horne, 9 Ired. 99. Partial unsoundness, not affecting the general faculties and not operating on the mind of the testator in regard to testamentary disposition, is not sufficient to make a person incapable of making a will: Pidcock v. Potter, 68 Pa. 342; Smith v. Tibbitt, 36 L. J. R. (N. S.) 97; Banks v. Goodfellow, 39 L. J. R. (N. S.) 257; Freeman v. Easly, 117 Ill. 317; Yoe v. McCord, 74 Ill. 40. The exact measurement of enfeeblement from age, in the natural decay of mental powers, which disqualifies one making a will, is, of course, not to be defined by any unbending rule of law. It must be ascertained from facts of each particular case, and therefore is generally a question for a jury: 1 Williams on Executors, sec. 32; Shep. Touch. 403; Jarman on Wills, 5th Am. ed. p. 94. A person disturbed at some particular point and under the influence of a delusion has partial insanity, and if a will is made under the influence of such a delusion, it is not the free result of a sound mind and memory and should not be admitted to probate: Cassidy on Wills, 467; Taylor v. Trich, 165 Pa. 691. Where witnesses first testify to facts indicating an abnormal state of mind, they may give their opinion about the mental state or condition of the testator and answer generally whether he is sane or insane: Taylor v. Trich, 165 Pa. 691; Elcessor v. Elcessor, 146 Pa. 359.
178 Pa. 64Gross v. Strominger (1896)Reversed
Appeal, No. 232, Jan. T., 1896, by defendant, from judgment of C. P. York Co., Aug. T., 1895, No. 60, for plaintiff on case stated. Case stated'to determine title to personal property. The case stated was as follows: It is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict, to wit: That Henry Strominger, of Newberry township, in said county, the father of the plaintiff and defendant in this case, died March 17, 1881, testate, seized and possessed of real and personal estate in said county, leaving to survive him a widow, Margaret Strominger, and six children, to wit: Rankin M., John A., Sarah Jane, Anna Eliza, Margaret M., and. Rachel Emma, and a grandson, David H. Strominger, having in his lifetime made his last will and testament in writing, bearing date the 14th day of February, A. D. 1880, which said will was duly proved before the register for the probate of wills in and for said county, March 22, 1881, and remains on file in the office of said register, and of record therein in will book BB, page 420. That the following is a true and correct copy of said will, to wit: “Know all men by these presents, that I, Henry Strominger, .... As to my worldly estate and all the property real, personal and mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, viz: First, my will is that all my just debts and funeral expenses shall by my executrix hereinafter named be paid out of my estate as soon after my decease as shall by her be found convenient. Item, I give and devise and bequeath, unto my beloved wife, Margaret, all my real, personal or mixed estate, to have and to hold the same to her, during her natural life. And if she desires to sell the same, she may sell the whole real, personal, or mixed, at public or private sale, to the best advantage, without any appraisement, and put the money derived therefrom, upon interest, where it will be perfectly safe invested in real estate, not encumbered, with any liens upon the same, and use all the said interest, if required for her own subsistence, and if there is not sufficient of said interest for her own personal wants and comfort, then to take of the principal sufficient to make her comfortable, she to have full control of said money, the same as I would have if I was living, and whatever is left at her decease, after her just debts and funeral expenses are paid, the balance that is left is to be equally divided between my named children, &c., viz: Rankin M., John A., Sarah Jane, Ann Eliza, Margaret M., and Rachel Emma, and my grandson, David H. Strominger is to have the one half of a full share of the balance left, which is to equal the full share of my son Philip, who is not, or any of his heirs, to receive any part or parcel of my estate. And in case any of the within named heirs, that is to inherit the aforesaid balance, should decease without leaving any legal heirs, then their respective share or shares to fall back to the survivors above named, or their legal heirs, to be divided as before mentioned. And none of my children or sons in law or their heirs to settle up the estate after the decease of my wife. “And lastly, I nominate, constitute, and appoint my said wife Margaret, to be my executrix of this my last will and testament.” That letters testamentary thereto were duly granted to said Margaret Strominger, the executrix therein named, March 22, 1881, who took upon herself the duties of said trust, and filed an account of the personal estate of said testator, charging herself with the amount thereof, to wit: $879.64, and showing a balance thereon in favor of the estate of $248.18, which account was duly confirmed in the orphans’ court of said county, January 3, 1887, and referred to an auditor for the distribution of the balance on the same. That by the report of the auditor, and the proceedings had on exceptions filed to said report, it appears that the persoiial estate of said testator was insufficient to pay his debts. That the real estate of said testator was sold and conveyed by said Margaret Strominger, executor as aforesaid, at private sale to Samuel Gross for $1,500, for part of which purchase money, to wit, $900 thereof, Samuel Gross executed and delivered to said Margaret Strominger a mortgage on said real estate, recorded the same day, payable one- year after date with interest; that said $900 were paid to said Margaret Strominger and the mortgage satisfied by her and the money again invested by her for her own use. That no account of the proceeds of the sale of said real estate of the testator was exhibited or filed by the said Margaret Strominger. That the balance- of said proceeds of sale of the testator’s real estate remained under the control of the said Margaret Strominger, invested for her use and benefit and in her name to the time of her death. That said Margaret Strominger received all the interest and income of the balance of the testator’s estate to the time of her death, which occurred on the 14th day of April, 1895. That the balance of the testator’s estate remaining invested at the time of the death of said Margaret Strominger, and in her name, consists of the amount of three certain promissory notes and one certificate of deposit, to wit: the joint promissory note of Levi Small and Benjamin Small for $800, dated March 24, 1892, payable one year after date to the order of Margaret Strominger, bearing interest, on which note interest was paid to April 1, 1895; the joint promissory note of Emma Gross and Samuel Gross for $100, dated April 1, 1893, payable one year after date to the order of Margaret Strominger, bearing interest, on which note interest has been paid to April 1,1894, and $15.00 on the principal, leaving a balance due thereon of $85.00, and interest thereon from April 1,1894; the promissory note of Ban-kin Strominger for $100, payable one year after date to the order of Margaret Strominger, bearing interest; a certificate of deposit of The Western National Bank of York, Pa., for $75.00, dated March 28, 1896, payable on demand to the order of Margaret Strominger, with interest not exceeding three per cent. That the amount due on said promissory notes and certificate of deposit is $1,082 (subject to the just debts and funeral ex penses of the said Margaret Strominger), the same being the proceeds of the sale of real estate of the testator, sold by said Margaret Strominger as aforesaid; and the said promissory notes and certificate of deposit are all in possession of Rankin Strominger, the defendant in this case. That five of the children of the testator named in his will survive said Margaret Strominger, to wit: Rankin Strominger, Sarah Jane, wife of Elias Glatfelter, Anna Eliza, wife of Jacob Gray, Margaret M., wife of Andrew Goble, and Rachel E., wife of Samuel Gross, and his said grandson, David H. Strominger; one of the children named in the will, to wit, John A., died before said Margaret Strominger, leaving no issue surviving him. That said Margaret Strominger died intestate. That letters of administration on her said estate were granted to said Rachel E. Gross, the plaintiff, who claims that said balance of the said Henry Strominger belongs to the estate of her intestate, Margaret Strominger. That letters of administration de bonis non cum testamento annexo of the estate of the said Henry Strominger were duly granted to said Rankin Strominger, the defendant, who claims said balance as belonging to the estate of his testator, said Henry Strominger. If the court shall be of the opinion that under said will of said testator the whole estate of the testator vested in said Margaret Strominger, absolutely, then judgment to be entered in favor of the plaintiff for the remainder of the estate of the testator, with costs of suit, to be released on the said defendant delivering to the plaintiff the above specified promissory notes and certificate of deposit; but if the court shall be of the opinion that under said will of said testator said Margaret Strominger took an estate for and during her natural life only, with remainder over to the legatees named therein, then judgment to be entered in favor of the defendant with costs of suit. Either party to have the right to appeal. Latimer, P. J., filed the following opinion : The will of Henry Strominger contains a devise and bequest to his wife of all his real and personal estate for life, with full power of sale and conversion at either public or private sale, without appraisement, with power of consumption of both principal and interest, “ She to have full control of the money, the same as I would have if living.” Many cases might be cited to show that such a gift vests an absolute estate in the wife, which is unaffected by a bequest of “ whatever is left at her decease.” Besides all this, the case stated finds that she did invest the money as her own in her own individual name, not as executrix of her husband, and it is difficult to see how any one but her administrator could collect. And now, to wit, August 6,1895, judgment in the case stated for the plaintiff and against the defendant for $1,082, to be released on defendant delivering to plaintiff the notes and securities specified in the case stated, and for costs of suit. Error assigned was in entering judgment for the plaintiff. The life tenant and executor having sold the land of the testator for a specific purpose, the surplus money, after the payment of his debts, retains the character of land, and must go where the land would have gone under the will at her death: Sayer’s App., 79 Pa. 428; Pennell’s App., 20 Pa. 515; Greenawalt’s App., 37 Pa. 95; Dyer v. Cornell, 4 Pa. 359; Hay’s App., 52 Pa. 449; Large’s App., 54 Pa. 383. The intention must be gathered from the whole will taken together, from the four corners of the instrument, and not from detached portions alone: Seibert v. Wise, 70 Pa. 147; Reck’s App., 78 Pa. 433; Urich’s App., 86 Pa. 389. A power of salé attached to an express life estate will not enlarge the gift to a fee: Kennedy v. Kennedy, 159 Pa. 327; Brockley’s App., 1 Pa. Sup. Ct. Dig. 242; Cox v. Sims, 125 Pa. 522; Fisher v. Herbell, 7 W. & S. 63; Morris v. Phaler, 1 W. 389; Dale v. Dale, 13 Pa. 448; Sheets’ App., 52 Pa. 257; Follweiler’s App., 102 Pa. 581. To effect a conversion of land into money under the terms' of a will the power to sell must be absolute and unconditional: Stoner v. Zimmerman, 21 Pa. 394; Henry v. McCloskey, 9 W. 145; Blight v. Bank, 10 Pa. 131; Symons v. Butter, 2 Vern. 227; Walker v. Denne, 2 Ves. Jr. 170. A gift to a widow of all testator’s estate after payment of debts for her sole use and benefit during the term of her natural life, to use, expend, sell and convey as she may desire and think proper, with a gift of the residue over upon her decease, vests in the widow an absolute power of disposition over testator’s estate : Mercur’s App., 151 Pa. 49. Mere precatory words, or words of command, or words of explanation, are not enough to establish an intention that is not to be gathered from a consideration of the operative words upon the face of the will: Boyle v. Boyle, 152 Pa. 108; Presbyterian Church v. Disbrow, 52 Pa. 224; Evans v. Smith, 166 Pa. 625.
178 Pa. 71Plonk v. Jessop (1896)Reversed
Appeal, No. 295, Jan. T., 1896, by plaintiff, from judgment of C. P. York Co., April T., 1895, No. 73, of nonsuit. Trespass for personal injuries. At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Stewart, J., filing the following opinion, by which the facts appear. This is an action of trespass brought by the plaintiff against the defendant, a plumber and gas fitter, to recover damages occasioned to the plaintiff through the alleged negligence of the defendant, by an explosion of illuminating gas in the house of the plaintiff whereby he sustained very severe injuries. At the trial upon the completion of the plaintiff’s testimony, a compulsory nonsuit was entered, on the ground of the plaintiff’s contributory negligence disclosed by his own testimony. Prior to April, 1893, the plaintiff, who is a briekmalcer, and who testified that he is a contractor and builds houses occasionally, built a house for himself, into which he moved with his family on or about April 1, 1893. While the house was in course of erection he had gas pipes put through it and tested, the pumps for that purpose being attached to the gas pipe in a small storeroom on the third floor of his house. This operation the plaintiff saw. Some time after he moved in, he had some gas fixtures put in, but not all through the house, and on the 24th day of December, 1894, while he was living in the house, he employed the defendant to put in some additional fixtures, and to have the gas, which had not prior to that time been in the house, turned on. The defendant came in the forenoon of that day, and with the plaintiff and his wife, went through the house, and they pointed out to him where they wanted fixtures. After they had gone through the rooms on the second floor, the defendant started as if to go to the third floor and was informed by the plaintiff and his wife that they did not need any brackets on the third floor as they didn’t use it to any extent except to store stuff there. The defendant after having been shown where a fixture was required in the kitchen, left the house and didn’t return any more that day. In the afternoon he sent his employees to the plaintiff’s house to do the work required, and this they did, putting in some brackets and changing the chandelier ; and the gas company’s men also came and ran a pipe from the street into the cellar, put up the meter and made attachment to it. The plaintiff testified: “ After they had the connections made to the meter, they turned the gas on; and I was standing by there and I seen the indicator as they called it, in the meter, — the small indicator in the meter that they call it,— two foot, — that was going on around about as fast as a second hand in a watch, and I made the remark to those men, ‘ Does that hand always run that fast,’ and they said, ‘No,’ that that did not go that fast if all the jets were turned on in the house,; and they said it was a leak. And I said, ‘ If a leak, you ought to ■fix it before you go away from here.’ And they started to go up stairs to find the leak and I went outside to do some paving outside. . . . And when they come out, they come out through the kitchen, and I asked them if everything was all right, and they said everything was all right, and no more was said, and they started off right after that then, and I sat down to supper. I was not quite done supper yet, and my wife she went into the hall and came in and said she smelled gas in the hall.” After his wife came a second time and repeated that she smelled gas in the hall, the plaintiff got matches and lighted them and tried to find the leak along the pipes, and finding that process too slow he got a candle or taper and lighted it and tried it along the pipes, as he had seen the plumbers do, going upstairs and through the different rooms until he reached the storeroom in the attic. He opened the door leading into this and immediately there was a terrific explosion of gas which knocked him down, set all his clothes on fire and burned him badly, besides igniting the room. He fell or crawled downstairs, called for help and tools, went into the cellar and had the gas turned off and the fire was quickly extinguished. As a consequence he was blind for many days, ten or more, had to be fed through a tube, and for three months was unable to attend to business. In view of the character of the explosion he made an exceedingly narrow escape with his life. It was discovered afterwards that there was no cap on the gas pipe where it terminated in the little storeroom, and where the plaintiff had seen the pumps put on to test the system of gas pipes, and when the gas was turned on it flowed with full force through this exit. The plaintiff testified on cross-examination that when he went into the hall, after his wife had told him the second time that she smelled gas in the hall, that he smelled gas. The examination on this subject was as follows: “ Q. You are sure it was gas you smelt? A. Yes, sir. Q. Was it strong enough to be very perceptible? A. Yes, it was a strong current of gas. It wasn’t strong enough to ignite. Q. You could smell it? A. It did smell bad enough for a leak. Q. As you passed up toward the third story did it smell stronger? A. Well, I didn’t — it didn’t seem so to me. I couldn’t tell much difference in it. Q. It was very strong everywhere ? A. Yes, sir. Q. And when you got up to the third story didn’t you smell it more than you did downstairs ?■ A. I don’t know — I guess I smelled it a little stronger. It wasn’t strong enough to ignite until I opened the door.” After detailing the circumstances of the explosion again, and turning off the gas in the cellar, the witness said: “ Q. Did you not know that illuminating gas would explode ? A. I often heard of it, yes, sir. Q. If it was brought in contact with a light? A. Yes, sir. Q. In the morning, or on the afternoon, rather, when the gas company’s men were at work making the connection with the meter, you were there with a light were you not? A. Yes, sir; yes, there was a light setting, or did I make the light ? I am not positive oh that, and 1 wanted to give a light, and they told me I had better take the light away or it might explode, one of the gas men told me, and I took it away; and the reason I went with the light upstairs, I done as the plumbers done because I seen them hunt in the same way, with matches and with a taper.” I have reviewed the testimony with care since the filing of the notes, and hearing the argument as well as the authorities cited, and, in view of both, I am convinced that the entry of the nonsuit was proper. According to the plaintiff’s admission he knew the explosive character of illuminating gas; he had, to use his own language, “ often heard that it would explode if brought in contact with a light,” and he virtually volunteered that “ the gas men told him that afternoon when he wanted to give them a light, that he had better’ take it away or it might explode; ” but as if to break the force of this he follows it by saying, “ I done as the plumbers done because I saw them hunt in the same way, with matches and a taper.” According to the plaintiff’s admission he knew that there was or had been a serious leak in his house; that after he was informed that it was all right, the gas almost immediately manifested itself in a strong current, strong enough for a leak; that it would explode if brought in contact with a light which he knew from often having heard it, and from having been warned of it that afternoon. Notwithstanding this he lighted a candle to hunt the leak. Can it be said in view of this that he was not negligent, or that a jury on such a state of facts ought to find that he was not ? The very element — the knowledge of the explosive character of gas — -absent in the case of Kibele v. Phila., 105 Pa. 41, and which would have ruled that against the plaintiff there, is present here. There the Supreme Court said : “ If the plaintiff knew that illuminating gas was escaping from the main and also knew that from it an explosion might reasonably be expected, it was his duty to have withdrawn from the premises, or to have taken other precautions for his safety until the leak could be discovered and stopped. He could not knowingly take upon himself such a risk as this, the risk of an explosion, and for its consequences charge the city: ” Kibele v. Phila., supra. To the same effect is Oil City Gas Co. v. Robinson, 99 Pa. 1. There the plaintiff who was a civil engineer entered a newly completed city sewer with a lantern in his hand, and an explosion occurred. The Supreme Court said: “ The plaintiff was also bound to the exercise of a reasonable care for his own safety. He was a civil engineer and may be presumed to have had some knowledge of the dangerous nature of illuminating gas, of its power to penetrate the earth and the materials composing the sewer, and of its explosive character when mixed in certain quantities with common air. He certainly did know, for he so testifies, that the gas was escaping and saturating the adjacent earth; hence it seems to us that he ought to have been on his guard. ... If it was probable that the gas escaping from the leak would find its way into the sewer in quantities sufficient to produce an explosion, he ought to have anticipated the result and not have entered the sewer with a lighted lamp. If he did so under the conditions stated he was guilty of such contributory negligence as ought to have prevented his recovery : ” Oil City Gas Co. v. Robinson, supra. In Beittenmiller v. Brewing Co., 22 W. N. C. 33, the plaintiff, a carpenter, was employed with other workmen to put a stringer in the defendant’s ice house. After working for a time the smell of ammonia became so strong as to affect their eyes, and they quit. About an hour afterwards the superintendent under whom they were working, finding they had quit, and the cause, directed them to go back, stating that the ammonia was not then so bad. The plaintiff did so, and very shortly after in doing his work his face was brought opposite a bolt hole in the wall from which a blast of ammonia was entering the room. He became senseless and fell to the floor and was injured. In- a suit for damages he was nonsuited on the ground of his contributory negligence, which the court refused to take off. The Supreme Court on appeal said: “The plaintiff has no one but himself to blame for the injuries he received. He knew the room was full of ammonia, and by continuing to work in it he assumed all the risks arising from that cause,” and the judgment was affirmed: Beittenmiller v. Brewing Co., supra. Indeed the rule could not be otherwise. If a man walk into a place having the appearance of danger with his eyes open, he is not in a position to charge the party with negligence who created the dangerous condition: Payne v. Reese, 100 Pa. 302. Was it proper for the court to enter a nonsuit? Where none of the essential facts is in dispute it is the court’s duty to declare the law: Wannamaker v. Burk, 111 Pa. 423; Hill v. Tionesta Twp., 146 Pa. 11; Davidson v. Railway Co., 171 Pa. 522; Gray v. Penna. Railroad Co., 172 Pa. 383; Ely v. Railway Co., 158 Pa. 236. All the facts affecting the question of contributory negligence were furnished by the plaintiff’s testimony: Delaware R. R. Co. v. Cadow, 120 Pa. 559. One cannot recover damages for an injury which by the exercise of reasonable care he might have avoided; and to this point there are numerous authorities, but one or two of them is sufficient: Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Township v. Anderson, 114 Pa. 643. I am of opinion therefore that the nonsuit was properly entered, and now decline to take it off. Error assigned was refusal to take off nonsuit. The case was submitted on paper-books. Plaintiff was guilty of contributory negligence: Wannamaker v. Burk, 111 Pa. 423; Davidson v. Ry. Co., 171 Pa. 522; Gray v. Penna. R. R., 172 Pa. 383; Stoughton v. Nat. Gas. Co., 159 Pa. 64; Hartman v. Incline Plane Co., 159 Pa. 442; Finch v. Conrade, 154 Pa. 328. Where the facts of a case are admitted or undisputed it is the duty of the court to pronounce the law arising thereon: Baker v. Gas Co., 157 Pa. 600; Fisher v. Ry. Co., 131 Pa. 292; D. L. & W. R. R. v. Jones, 128 Pa. 314; D. L. & W. R. R. v. Cadow, 120 Pa. 559; Brossman v. L. V. R. R., 113 Pa. 493; Central R. R. of New Jersey v. Feller, 84 Pa. 229; Beittenmiller v. Bergner & Engle Brewing Co., 22 W. N. C. 33; Oil City Gas Co. v. Robinson, 99 Pa. 1; Kibele v. Philadelphia, 105 Pa. 41; Holly v. Boston Gas Light Co., 8 Gray, 123; McCully v. Clarke & Thaw, 40 Pa. 399; Baker v. Gas Co., 157 Pa. 600.
178 Pa. 78In re Estate of Fulton (1896)Reversed
■Evidence — Books of original entries — Physicians' books — Decedents' estates Glaims against decedents' estates. A book which shows on its face that it was not one of entries in the regular course of business, but was a separate book containing no charges exC6pt against the defendant is not admissible as a book of original entries. Original entries need not-be such as to be generally understood, if they are such as are intelligible to persons in the business, but in such case they should be supported by evidence of their meaning and character. Decedents' estates — Executors and administrators — Unsettled accounts. At the audit of an executor’s account it appeared that a claimant against the estate had very close and complicated business connections with the decedent. The evidence showed real estate held in common and in trust; many payments or advances of mouey on account of such real estate, transfer and satisfaction of judgments; and very numerous checks passing from each of the parties to the other. The auditor separated as far as was practicable the matters involved in the personal and the real estate, and as to the latter reported that as they had not been adjusted, the orphans’ court was without jurisdiction to pass upon them. The auditor’s report was confirmed by the orphans’ court. Held, that as the parlies had never made any final settlement in their business, relations, the orphans’ court could not allow any items connected with the personal estate apart from those connected with the real estate. Professional services — Book entries. Not decided whether professional services can be the subject of proof by book entry.
178 Pa. 91Lancaster County National Bank v. Garber (1896)Reversed
Appeal, No. 247, Jan. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., May T., 1894, No. 58, on verdict for defendant. Assumpsit against first indorser upon a promissory note. Before Brubaker, J. The court charged in part as follows: This, as you bave seen, is an action brought by the Lancaster County National Bank, plaintiff, against Andrew Garber, the defendant, for the recovery of the amount of a certain promissory. note for $1,350, which was dated January 15, 1894, and was made payable sixty days after date to the order of Andrew Garber at the Mountville National Bank, in this county, and signed Henry B inkley. Youwill observe, gentlemen, that Henry Binkley is a drawer and that Andrew Garber, the defendant, is the first indorser, and E. H. Kauffman is the second indorser on this note. It is what is known in business circles as a bank accommodation note, that is, a note indorsed for the accommodation of the drawer. ■ The words, “ credit the drawer,” are at the bottom of the note, which is printed, and it also contains the signature of Mr. Garber under these words, which shows that it was an accommodation note. You will also observe that the note in suit contains the word “ renewal ” on the face, both in black and in red ink, and that it was made payable at the Mountville National Bank, of Mountville, Pa. The bank, plaintiff, contends that the note in suit, which was made payable at the same place, at the Mountville National Bank, was taken by them as a renewal of a certain other $1,400 accommodation note, dated October 18,1893, drawn by said Henry Binkley, and made payable sixty days after date to the order of Andrew Garber, the defendant, at the said Mountville National Bank, which was indorsed by Mr. Garber and also by E. H. Kauffman, which was discounted for said Kauffman by the Lancaster County National Bank, the plaintiff in this action; that the bank took the $1,400 note in the regular course of business without notice or suspicion of any alteration or fraud, and so far as that note is concerned, if it was a genuine note, the bank would be an innocent holder for value; and if there had been no further testimony in this case, the plaintiff would unquestionably be entitled to your verdict. But the note of $1,400 has been attacked here on the part of the defendant. We have admitted the testimony — after a full discussion by the learned counsel on either side in this case — of Mr. Garber, the defendant, to show, as the defense contends, that this $1,400 note was altered after it had been signed and indorsed, without the knowledge or consent of Mr. Garber, the defendant, and that the note in suit was not signed as a renewal of the alleged altered note of $1,400, but as renewal of a certain note of Binkley in the Columbia National Bank, and that it was fraudulently misused after distinct notice had been given to plaintiff’s bank by Garber of the fraud perpetrated, upon him before as to the $1,400 note. The note in suit has the word “ renewal ” distinctly marked in black ink, and also in red ink. The main question, which I am obliged, from the view I take of this case, to submit to you for your consideration and determination, therefore, is, whether or not the $1,400 note is an altered or forged note. This is the first question you must decide when you come to examine the testimony after you retire. The alteration alleged is as to the time that the note was made payable. The time of payment was altered, as Mr. Garber says in his testimony, after it was signed and after it was indorsed by him and after it had left his hands from “ six ” to “ sixty ” days by erasure or otherwise, although the alteration was not apparent on the face of the note, or even could not be detected by the aid of a magnifying glass, which was used by the bank officers, as testified by them and admitted by Mr. Garber. I am obliged to say to you, that, in the eye of the law, if it was so altered, it would be such a material alteration as to relieve Mr. Garber, the defendant, and a recovery could not be had on that $1,400 note, if suit had been brought on it. There is no dispute between the parties as to the notice given by Mr. Garber that there was an alteration made in the note and that Mr. Garber said that he would not pay it by reason of the alteration that had been made. Mr. Breneman and Mr. Haldy, officers of the bank, both admitted that he had so notified them, but at the same time they told Mr. Garber, that so far as they were concerned they were innocent holders, and would hold him responsible and expected him to pay it. Mr. Garber left the bank. Subsequently the note in suit was presented to the bank by Mr. Kauffman, who had had the former note discounted, and the note in suit was given to the bank in the presence of Mr. Binkley, and the bank took it in payment of the $1,400, note, and it was credited to Mr. Kauffman’s account, although the note hi suit was indorsed by Mr. Garber to renew a note at the Columbia National Bank, but which was misused by Binkley to pay off the $1,400 note, the alleged forged note, which had also been so misused if you believe Garber. Now it may be conceded that both the bank, plaintiff, and Mr. Garber, defendant, if the note was an altered or forged note, were imposed upon in this transaction by some one, and that some one may have been Mr. Kauffman or Mr. Binkley. It is a rule of' law that when one of two innocent parties is to bear a loss, the one who occasioned it is the one that should bear it. There is no pretense on the part of the plaintiff, the Lancaster County National Bank, that Mr. Garber did not use ordinary care in this case to prevent the fraud committed upon him if committed at all, and he could not be held responsible for any negligence, so far as the evidence in this case is concerned, if you believe it was an altered note, as contended. [We have evidence, on the contrary, that notice had been given to the bank by Mr. Garber that the $1,400 note was a forged note; and the note in suit being drawn by the same parties, indorsed by Mr. Garber, payable at the same bank where the $1,400 note had been made payable, being an accommodation note, being marked “ Renewal ” in both red and black ink, it was the duty of the bank, after it had notice of the alleged forgery, to make inquiry with reference to this note before it received it, and if the bank chose to take this note in suit without having made such inquiry, by reason of the former suspicious circumstances, then the bank was not an innocent holder of the note in suit for value.] [1] The alleged forged note of $1,400 is not in evidence. It was handed, as the bank officers say, to the drawer, Mr. Binkley, who was present with Mr. Kauffman as indorser, when the note in suit was taken by the plaintiff, the bank officers, and credited to Mr. Kauffman’s account in payment of the $1,400 note, as I have said before. The alleged forged note is not here for inspection by you, and the question must, therefore, depend solely upon Mr. Garber’s testimony, and his credibility, as I have said before, is a matter for you. [Now, gentlemen, this is a serious case. You have before you a genuine note, recovery upon which on the part of the plaintiff depends upon the fact whether the $1,400 note, the alleged forged note, was actually an altered note or not,] [2] as contended on the part of the defendant. We have said to you that, in our view of the matter, if that was a forged note, no recovery could be had on this one; knowledge having been brought to the plaintiff of that fact before they received the note in suit, and the note in suit being taken in renewal of the forged note, there could, therefore, be no recovery in this case. If you come to the conclusion that it was not an altered note, then the verdict should be in favor of the plaintiff in this case, with interest. If you come to the conclusion that it was an altered note, then no matter how good the new or second note may have been, being taken as a renewal of the forged or altered note after notice, there can be no recovery. You should take the law from the court. You must pass upon the evidence. You should simply decide the question of fact, whether that $1,400 note was or was not a forgery, and render your verdict accordingly. Plaintiff’s points and answers thereto among others were as follows: 2. Before the jury can find for the defendant, they must find that the plaintiff and its officers were guilty of bad faith. Answer : Affirmed, but we say as we have already said more fully in our general charge to you, that if the alleged altered note of $1,400 was actually altered after Mr. Garber had signed and indorsed it and after it had left his hands, without his knowledge or consent, and Garber had given notice to the plaintiff,the bank, of the fact of alteration after the note of $1,400 became due, the plaintiff would not be an innocent holder of the note in suit; in such case it was the duty of the plaintiff to make inquiry concerning the note in suit before it accepted it in pay-. ment of the $1,400 note. [8] Defendant’s points and answers thereto among others were as follows: [2. If the jury believe further that the $1,400 note was altered, and that the note in suit was given as a renewal of the note in' the Columbia National Bank, and not as a renewal of the October 18, 1893, note for $1,400 (the alleged altered note), then the plaintiff bank was not a holder for value as to defendant of the note in suit. Answer: Affirmed, if you believe Garber gave him notice or information of the matter contained in this point.] [4] [3. If the jury believe from the evidence that the plaintiff bank took the note in suit mala fide (in bad faith) to the defendant, then the verdict should be in favor of the defendant. Answer : That is affirmed.] [5] [4. If the jury find from the evidence that the plaintiff bank was not the holder of the note in suit for value in good faith as to defendant, then the verdict must be in favor of the defendant. Answer: That is affirmed.] [6] Verdict and judgment for defendant. Plaintiff appealed. Errors assigned were (1-6) above instructions, quoting them. Now while it is true that fraud in the procurement or misappropriation of a note may be a defense, it is not a defense as against one who is a bona fide purchaser for value, without notice : Rothermal v. Hughes, 134 Pa. 510; Phelan v. Moss, 67 Pa. 67; Moorehead v. Gilmore, 77 Pa. 118; McSparran v. Neeley, 91 Pa. 17; Bank v. McCoy, 69 Pa. 204; Second Nat. Bank of Clarion v. Morgan, 165 Pa. 199. The fact that this was an accommodation note is not a matter for defense or for consideration: Philler v. Patterson, 168 Pa. 468. As to the alteration of the first note, if it was altered, this was only shown by the evidence of the defendant, and the same evidence and the evidence of the officers of the bank prove that no sign of altering could be discovered even with the aid of a magnifying glass. Therefore the note must have been issued in such a form as to admit of fraudulent practice with ease, and without ready detection: Zimmerman v. Rote, 75 Pa. 188; Garrard v. Hadden, 67 Pa. 82; Brown v. Reed, 79 Pa. 370; Gettysburg Nat. Bank v. Chisolm, 169 Pa. 564. A material alteration in a note discharges the parties not consenting thereto: Randolph on Commercial Paper, secs. 1742, 1758, 1777; Bank of U. S. v. Boone, 3 Yeates, 391; Babb v. Clemson, 10 S. &. R. 428; Getty v. Shearer, 20 Pa. 16; Stephens v. Graham, 7 S. & R. 505; Graighead v. McLoney, 99 Pa. 215; Hooker v. Jamison, 2 W. & S. 438; Leas v. Wall, 101 Pa. 64. The surrender of an original valid note for a forged renewal will not affect a recovery upon the original. The converse of this proposition ought to be equally sound: Randolph on Commercial Paper, sec. 488; Fraker v. Cullum, 21 Kansas, 55; Lenheim v. Wilmarding, 55 Pa. 73; Royer v. Keystone Bank, 83 Pa. 248; Daniels on Negotiable Instruments, secs. 177, 205, 795. Where a negotiable note has been obtained by fraud, or fraudulently put in circulation, the holder must prove that he is a bona fide holder for value, and without any notice of fraud: Hutchinson v. Boggs & Kirk, 28 Pa. 294; Lenheim v. Wilmarding, 55 Pa. 73; Smith v. Building Assn., 93 Pa. 19; Lerch Hardware Co. v. Bank, 109 Pa. 240; Randolph on Commercial Paper, sec. 1027. Plaintiff was not a bona fide holder for value of the note in suit as to Garber. In Rothermal v. Hughes, 134 Pa. 510, cited by appellant, Hughes indorsed a note under the promise of the maker to get several more indorsers. The indorser defended on that ground. The facts are in no wise similar. In Phelan v. Moss, 67 Pa. 59, the note was obtained by the maker by fraud. It was purchased by the holder for less than its face value. There was no knowledge or notice of the fraud. It is not applicable to the case at hand. In Moorehead v. Gilmore, 77 Pa. 118, a member of the firm had no authority to sign the note under the private articles of partnership. The holder had no notice of this. In McSparren v. Neeley, 91 Pa. 17, and Bank v. McCoy, 69 Pa. 204, the defendants were very drunk when they indorsed the note; the holder had no knowledge of the fact.
178 Pa. 99Musser v. Stauffer (1896)Affirmed
Appeal, No. 383, Jan. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., June T., 1895, No. 49, discharging rule for judgment for want of a sufficient affidavit of defense. Assumpsit upon promissory notes. Before Brubaker, J. The plaintiff’s statement shows that on the 11th day of November, 1890, he sold the defendant at Roanoke, Va., eight lots of ground in the city of Roanoke in the state of Virginia, in consideration of which the defendant assumed and agreed to pay as part of the purchase money twelve notes of $83.33 and four of $83.34, which notes had been made by the plaintiff and were payable to and held by the Melrose Land Company of Roanoke, Va., amounting in the aggregate to $1,333.32, and in further consideration for the sale of said lots, the defendant gave the plaintiff sixteen promissory notes, dated said 11th. day of November, 1890, for $83.83 each, eight of which were payable in one year from date and eight in two years from date; that defendant having neglected and refused to pay eleven of the notes assumed by him plaintiff was compelled to pay them; and plaintiff claimed for the amount of said eleven notes which he had been compelled to pay to the Melrose Land Company and for the sixteen notes which defendant had given him. The notes were executed in Virginia, and were to be paid in Virginia. Defendant filed an affidavit of defense, and also a supplemental affidavit of defense. The latter is as follows: 1. At the time of the execution of the notes upon which this suit is brought and which are set forth in the plaintiff’s statement, Samuel D. Stauffer was the owner and holder of one-fourth of the capital stock of the Monitor Steam Generator Manufacturing Company of Lancaster city, and had from it authority to enter into contracts with the Monitor Steam Gen erator Manufacturing Company of Roanoke, and with Henry C. Musser, its secretary, the plaintiff in this action. 2. At or about the time of the execution of the said notes and as part of the consideration of the same, the plaintiff, Henry C. Musser, made an oral agreement with Samuel D. Stauffer that his company, the said Monitor Steam Generator Manufacturing Company of Roanoke, would pay to the Monitor Steam Generator Manufacturing Company of Lancaster, eighty thousand dollars ($80,000) for the transfer and assignment of the territorial rights under patent No. 382,863, issued by the United States, which promise made to the said Monitor Steam Generator Manufacturing Company of Lancaster, was of value to defendant in that he owned one-fourth of the stock of the said company and would therefore be entitled to one-fourth of the profits arising from the sale of said patent, and it was part of the consideration of the notes upon which this suit is brought that said money should be paid to the said Monitor Steam Generator Manufacturing Company, of Lancaster, Pennsylvania. Said agreement between said two companies was dated on the second day of October, 1890. Its terms and conditions are set forth in the record book of the Monitor Steam Generator Manufacturing Company, of Roanoke, of which plaintiff is secretary and to which he has access, and of which defendant has no copy but will be able to produce by subpoena on the trial of this cause. But the defendant avers that when he executed said notes the said Henry C. Musser had knowledge of said agreement and was interested in the same as a stockholder of the said company, of Roanoke, and expressly made said agreement and the advantages resulting to defendant from the execution thereof a part of the consideration of said notes, without which consideration said notes would not have been given, and it was expressly agreed by and on behalf of plaintiff that if said consideration failed, said notes need not be paid, and this on the trial of this - cause defendant expects to be able to prove by another witness than himself and by corroborating circumstances the exact nature of which he is advised he need not at this stage of the case disclose. 3. Defendant notified the Monitor Steam Generator Manufacturing Company, of Lancaster, of the alleged agreement; the said company had knowledge of, ratified and adopted it, and in making partial payment to the said company of Lancaster, the said company of Roanoke, through its secretary, the plaintiff in this case, deducted a portion of the moneys due from defendant to plaintiff on the contract out of which this suit arose and in which the notes on which this suit is founded were given. 4. The defendant had power and authority from the Monitor Steam Generator Manufacturing Company, of Lancaster, to make an arrangement by which there might be deducted from the moneys payable to it the amount of said notes. 5. The defendant was not bound to demand or to have demand made upon plaintiff or his company of Roanoke for the payment of said forty-five thousand dollars ($45,000) to the Monitor Steam Generator Manufacturing Company, of Lancaster, but inasmuch as the payment of said moneys was part of the consideration of said notes, the plaintiff and his company of Roanoke were bound to comply with all their undertakings and agreements before they had a right to collect said notes, and the consideration of said notes having failed, defendant is not bound to pay them. 6. The defendant alleges that the Monitor Steam Generator Manufacturing Company, of Lancaster, was owner and had the right and power to sell and convey to the said company, of Roanoke, all the patents and property for which it had made agreements. 7. Said rights and patents were of great value, to wit, of the whole amount which plaintiff’s company had agreed to pay for them. 8. The defendant alleges that he expects to be able to prove upon the trial of the said cause, by his own evidence, by the testimony of another witness whose name he is advised he is not bound to disclose, and by corroborating circumstances the exact nature of which he is advised he is not bound to disclose, that a part of the consideration of the notes on which this suit was brought was the promise and undertaking of plaintiff to see that said forty-five thousand dollars ($45,000) was paid by the company of which he, plaintiff, was a large stockholder and was an officer, to the company of which defendant was a large stockholder, which consideration having failed, said notes were not to be paid by, and cannot in law be collected from, the defendant. 9. Defendant alleges and is advised that he was not bound to disaffirm the contract set forth in plaintiff’s statement, but that before plaintiff could collect the moneys of said obligations, he was bound to furnish the consideration upon which they were given, by reason of the failure of which he is further advised there can be no recovery in this case. The court discharged a rule for judgment for want of a sufficient affidavit of defense. JError assigned was above order. . The written contracts set forth in plaintiff’s statement, and upon which this action was brought, were made, and were to be performed in Virginia, and the land is situated in Virginia, and the law of that state must govern in determining their validity, obligation and construction; therefore, if under the laws of Virginia, the allegations contained in the defendant’s affidavit and supplemental affidavit of defense would be no defense to a suit' brought in that state, they can be no defense in this suit: Tenant v. Tenant, 110 Pa. 484; Baum v. Birchall, 150 Pa. 164; Story on Conflict of Laws, 424. The law of Virginia will not admit parol evidence to vary or contradict the terms of these contracts : Crawford v. Jarrett, 2 Leigh. (Va.) 684; Watson v. Hurt, 6 Grattan, 633; Leas v. Eidson, 9 Grattan, 277; Carter v. McArtor, 28 Grattan, 356; Barnett v. Barnett, 83 Va. 504; Towner v. Lucas, 13 Grattan, 705; Woodward, Baldwin & Co. v. Foster, 18 Grattan, 200; Shenandoah Valley R. R. v. Dunlop, 86 Va. 346; Sangston v. Gordon & Riely, 22 Grattan, 755; Colhoun & Cowan v. Wilson, 27 Grattan, 639; Johnson v. Mann, 77 Va. 265; Miller v. Fletcher, 27 Grattan, 403; Redd v. Com., 85 Va. 648; Bonsack v. Woodrum, 88 Va. 512; Shirley v. Rice, 79 Va. 442; Bast v. Bank, 101 U. S. 93. Decisions of the courts of one state upon the commercial or any other branch of the common law prevailing therein, are as binding upon the courts of another state as are decisions based upon statutes: Forepaugh, v. D. L. & W. R. R., 128 Pa. 217. The defendant does not allege that anything was omitted from the written contracts by fraud, accident, or mistake, or that there was any fraud, accident, or mistake in the making of the contracts; therefore,’ if anything was omitted therefrom it was purposely omitted: Irvin v. Irvin, 142 Pa. 286; Anspach v. Bast, 52 Pa. 356; Hacker v. The Nat. Oil Refining Co., 73 Pa. 93. Parol evidence may be given to prove the existence of any separate parol agreement constituting a condition precedent to the attaching of any obligation under a written instrument; or to show a consideration different from or additional to that expressed : 17 Am. & Eng. Ency. of Law, 436; Shue v. Fuheman, 1 York Leg. Reg. 62; Caley v. Phila. & Chester County R. R., 2 W. N. C. 313; Flood v. Park, 2 W. N. C. 569; Lippincott v. Whitman, 3 W. N. C. 313; Christ v. Diffenbach, 1 S. & R. 464; Iddings v. Iddings, 7 S. & R. 111; Miller v. Henderson, 10 S. & R. 290; Parke v. Chadwick, 8 W. & S. 96; Clark v. Partridge, 2 Pa. 13; Renshaw v. Gans, 7 Pa. 117; Rearich v. Swinehart, 11 Pa. 233; Martin v. Berens, 67 Pa. 459; Burk v. Kerr, 12 W. N. C. 191; Greenawalt v. Kohne, 85 Pa. 369; Keough v. Leslie, 92 Pa. 424; Iowa Gulch Mining Co. v. Work & Co., 13 W. N. C. 47; Hardwick v. Pollock, 15 Pa. C. C. 161; Sidney School Furniture Co. v. Warsaw School District, 130 Pa. 76; Walker v. France, 112 Pa. 203; Cullmans v. Lindsay, 114 Pa. 170; Mich. Mut. Life Ins. Co. v. Williams, 155 Pa. 405; Ferguson v. Rafferty, 128 Pa. 356. Foreign laws must be proved as facts : Story on Conflict of Laws, secs. 637 638; Rorer on Inter-State Law, 163; 1 Randolph on Commercial Paper, 34; Male v. Robert, 3 Esp. 163; 1 Daniels on Negotiable Instruments, 890; Braintrim Twp. v. Windham Twp., 10 Pa. C. C. 251; Harlan’s Est., 16 Pa. C. C. 51; Coleman’s Est., 13 Pa. C. C. 81; Perlman & Co. v. Sartorius & Co., 162 Pa. 324. This court will not lightly reverse for refusal to enter judgment for want of sufficient affidavit of defense: Radcliffe v. Herbert, 135 Pa. 568; Murphy v. Cappean, 147 Pa. 45; Ætna Ins. Co. v. Confer, 158 Pa. 604; Ensign v. Kindred, 163 Pa. 638. The unwritten or common law of another state may be proved by the books of reports adjudged in its courts, and the proof is to the court and not to the jury: Rorer on International State Law, 2d ed. p. 165; Cragin v. Lamkin, 7 Allen, 395; Bollinger v. Gallagher, 163 Pa. 252; Mullin v. Morris, 2 Pa. 85; Tenant v. Tenant, 110 Pa. 478; Bock v. Lauman, 24 Pa. 435; Haynes v. Synnott, 160 Pa. 180. Parol evidence is only admissible under certain circumstances to vary, change or reform a written instrument, where fraud, accident or mistake at the time of the execution of the instrument is alleged and proved, and the alleged parol agreement must be shown by evidence that is clear, precise and indubitable, and tins can only be done by the testimony of two witnesses, or of one witness corroborated by circumstances equivalent to another: Thomas v. Loose, 114 Pa. 35; Spencer v. Colt, 89 Pa. 314; Rowand v. Finney, 96 Pa. 192; Murray v. N. Y., L. E. & W. R. R., 103 Pa. 37; Stull v. Thompson, 154 Pa. 43; Jessop v. Ivory, 158 Pa. 71; Clarke v. Allen, 132 Pa. 40; Anspach v. Bast, 52 Pa. 356; Hacker v. Nat. Oil Refining Co., 73 Pa. 93; Wodock v. Robinson, 148 Pa. 503; Thorne v. Warfflein, 100 Pa. 519; Coughenour v. Suhre, 71 Pa. 462; Hill v. Gaw, 4 Pa. 493; Wharton v. Douglass, 76 Pa. 273; Lighty v. Shorb, 3 P. & W. 453; Stroop v. Ransom, 10 Watts, 297; Black v. Halstead, 39 Pa. 71; Comly v. Bryan, 5 Wharton, 265; Ogden v. Offerman, 2 Miles, 40; Peck v. Jones, 70 Pa. 83; Wayman v. Ochse, 3 Pittsburgh, 163; Endlich on Aff. of Def. sec. 363.
178 Pa. 106Taylor v. Haskell (1896)Beversed
Appeal, No. 384, Jan. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1895, No. 6, on verdict for defendants. Ejectment for a tract of land in Manor township. Before Livingston, P. J. The facts appear by the opinion of the Supreme Court. The court below gave binding instructions for defendants. Yerdict and judgment for defendants. Plaintiff appealed. Error assigned was above instruction. The rule is well settled that persons who act in a fiduciary capacity cannot become purchasers at their own sale against the dissent of their cestui que trust: Hill on Trustees, 536; Lewin on Trustees, 460; Chronister v. Bushey, 7 W. & S. 153; Painter v. Henderson, 7 Pa. 49; Beeson v. Beeson, 9 Pa. 284; Musselman v. Eshleman, 10 Pa. 395; Leisenring v. Black, 5 Watts, 303; Pennock’s App., 14 Pa. 447; Drysdale’s App., 14 Pa. 531; Chorpenning’s App., 32 Pa. 315; Campbell v. McLain, 51 Pa. 201; Grim’s App., 105 Pa. 377; Shuman’s App., 27 Pa. 64. While equitable conversion operates to take the title of real estate from the heirs and vest it in the executors for the purposes of sale, the law wisely holds that such a serious consequence cannot be effected by implication: Bleight v. Bank, 10 Pa. 131; Hunt & Lehman’s App., 105 Pa. 141; Irwin v. Patchen, 164 Pa. 65; Cobel v. Cobel, 8 Pa. 342; Peterson’s App., 88 Pa. 397; Hunt’s App., 105 Pa. 128; Chew v. Nicklin, 45 Pa. 88. An absolute direction to sell lands after the death of the testator and to divide the proceeds among his children effects an equitable conversion thereof into personalty: Page’s Est., 75 Pa. 87; Hunt & Lehman’s App., 105 Pa. 128; Marshall’s Est., 147 Pa. 77; Allison v. Wilson, 13 S. & R. 330: Morrow v. Brenizer, 2 Rawle, 185; Burr v. Sim, 1 Whart. 252; Allison v. Kurtz, 2 Watts, 185; Gray v. Smith, 3 Watts, 289; Simpson v. Kelso, 8 Watts, 247; Hess v. Shorb, 7 Pa. 231; Willing v. Peters, 7 Pa. 287; Silverthorn v. McKinster, 12 Pa. 67; Parkinson’s Appeal, 32 Pa. 455; Wilson v. Shoenberger, 34 Pa. 121; Brolasky v. Gally’s Executors, 51 Pa. 509; Evans’s Appeal, 63 Pa. 183 McClure’s Appeal, 72 Pa. 414; Jones v. Caldwell, 97 Pa. 42.
178 Pa. 112Fidler v. John (1896)Reversed
Appeal, No. 89, July T., 1895, by defendant, from judgment of C. P. Northumberland Co., Feb. T., 1885, No. 42, on verdict for plaintiffs. Ejectment for a lot of land in Shamokin borough. Before Lyons, P. J., of tbe 41st judicial district, specially presiding. Tbe facts appear by tbe opinion of the Supreme Court. Tbe court charged in part as follows : [But tbe plaintiffs now allege, in order to avoid this title of U. F. John, that the deed of William Fidler and wife to Michael Lucas, for tbe consideration of twenty-five hundred dollars ($2,500), dated the 10th of August, 1877, was made for the purpose of defrauding Eva'Smink, who had brought suit against William Fidler in the common pleas of Northumberland county, which was to be tried before arbitrators on the 14th day of August, 1877, and that William Fidler, who was then the owner of the land in dispute, acting upon the advice of U. F. John, who was the attorney in the suit of Eva Smink against him, advised him to make the deed of conveyance, which was made to Michael Lucas on August 10, 1877, for the purpose of defrauding Mrs. Eva Smink out of her money, and for the purpose of casting a cloud upon the title to enable him to buy this property for less than its value. If he did in point of fact so advise William Fidler to make this conveyance, and Justina Fidler had no knowledge of the fraud intended, and this was done not only for the purpose of defrauding Eva Smink, but also for the further purpose of enabling U. F. John, the defendant, to buy this property for less than its value, then his subsequent purchase of the land at sheriff’s sale upon his own judgment would vest no .title in him, and the plaintiffs would be entitled to recover.] [5] [The allegation of fraud as alleged here by the plaintiffs is an easy one to make, but the law never presumes fraud. He who alleges it must prove it, although it is sometimes difficult to do. Yet there is not very much in the circumstances of tins case which is difficult for you to understand, and we submit it now as a question for you to determine whether or not Mr. John, if he did in point of fact advise the conveyance by Fidler and wife which was made on the 10th of August, 1877, to Michael Lucas, did so for the purpose of defrauding Eva Smink; and whether he did that intending at the same time to enable himself by means of his .judgment and his conduct in the premises to obtain title to this land for less than it was worth. If you find that he did then he would be affected by the fraud, unless ' you find further that Mrs. Fidler was also cognizant of the fact, that she knew the purpose for which it was made and entered into; and that she, as testified to by Mr. Smink, was in conversation with her husband about the matter. If such was the case then I say to you that she cannot set up this fraud to defeat the right of Mr. John to recover. I submit the questions to you to find under all the evidence in the case. If you believe that Mr. John did counsel and advise the making of that deed for the purpose of defrauding Eva Smink, that it was made in pursuance of that counsel and advice; that he intended also to enable himself to gain this property for less than its value, then he would not be in a position to hold that title. On the other hand, if he did not do it for that purpose he has a valid title, and the verdict ought to be for the defendant.] [6] Defendant’s points and answers thereto among others were as follows: 1. Under all the evidence in the case the verdict must be for the defendant. Answer: This we refuse and refer you to the general charge. [7] 5. There is no evidence of any conspiracy between William Fidler and U. F. John to defraud Justina Fidler out of her property, therefore there can be no recovery by the plaintiffs. Answer: We refuse so to instruct you and refer you to the evidence in the case and to the instructions given you in the general charge. [10] Verdict and judgment for plaintiffs. Defendant appealed. Errors assigned among others were (5, 6, 7, 10) above instructions, quoting them. Lien creditors are not included among persons who may be defrauded by the conveyance of land, for they may follow the land irrespective of all changes in title, honest or dishonest: Zuver v. Clark, 104 Pa. 227; Henderson v. Henderson, 133 Pa. 412; Byrod’s App., 31 Pa. 241; Fisher’s App., 33 Pa. 294; Hoffman’s App., 44 Pa. 95; Dungan’s App., 88 Pa. 416; Haak’s App., 100 Pa. 59; Long v. McConnell, 158 Pa. 578. As against everybody except persons intended to be defrauded, the deed of William Fidler and wife to Michael Lucas, of August 10, 1877, vested a good title in him for the land in controversy, subject to undisputed existing prior liens. William Fidler’s title became as absolutely vested in Michael Lucas by virtue of his deed as if the deed had been executed and delivered in the best of faith for a valuable and sufficient consideration paid, and if void as to Eva A. Smink or other creditor intended to be defrauded yet the title was changed and a sheriff’s sale upon the judgment of Mrs. Smink, obtained after-wards against William Fidler, would be subject to liens which existed at and before the date of the delivery of the deed to Lucas. So far as U. F. John was concerned, if 'he advised the sale from Fidler to Lucas, and the jury found that he did, the conveyance to Lucas was not fraudulent as to him, because he was a party to it. It was simply void. There can be no fraud between parties to a fraudulent transaction, and the subsequent sale under the Smink judgment discharged the lien of John’s judgment, consequently the subsequent sale to him by the sheriff by proceedings under Ms judgment was void, and passed no title to him for the property in controversy; he can reap no advantage from his fraud, and if in the absence of the fraudulent conveyance the sale of the Smink judgment would have discharged his liens, which it surely would have done, the sale brought about by his act cannot prevent his judgment from being affected and discharged by the sale, because if it did he would be benefited by his own covinous act: French v. Mehan, 56 Pa. 286; Blystone v. Blystone, 51 Pa. 376; Evans v. Maury, 112 Pa. 312; Gill v. Henry, 95 Pa. 388; Murphy v. Hubert, 16 Pa. 50; McKennan v. Pry, 6 Watts, 137; Gilbert v. Hoffman, 2 Watts, 66; Beegle v. Wentz, 55 Pa. 369; Smull v. Jones, 1 W. & S. 128; Faust v. Haas, 73 Pa. 295; Hoffman v. Strohecker, 7 Watts, 86; Pendleton v. Richey, 32 Pa. 58; Sager v. Mead, 164 Pa. 125. Where the debtor is not the originator of the fraud, but is enticed into the transaction, either through weakness of mind, or the advice of his attorney, or creditor, to whom the transfer is made, equity will grant relief, not on account of any right in the debtor, but for the purpose of preventing any perpetration of a greater fraud by the grantee: Bump on Fraudulent Conveyances, 447; Prewett v. Coopwood, 30 Miss. 369; Freelove v. Cole, 41 Barb. 318; Beale v. Hall, 22 Geo. 431; Smith v. Elliott, 1 Pat. & H. Va. 307; Ford v. Harrington, 16 N. Y. 285; Austin v. Winston, 1 H. & M. (Va.) 33; Stewart v. Iglehart, 7 G. & J. (Md.) 132; Dearman v. Dearman, 4 Ala. 521; Brady v. Ellison, 2 Hay (N. C.), 348; Smith v. Bowen, 2 Hay (N. C.), 296; Baker v. Gilman, 52 Barb. 26; Wolf v. Kohr, 133 Pa. 13; Kintzel v. Kintzel, 133 Pa. 71; Hager v. Weiss, 5 Montg. 121. Fraud must always be proved, but great latitude is allowed in the admission of evidence which may throw light on the alleged fraud: Heath v. Slocum, 115 Pa. 549; Cover v. Manaway, 115 Pa. 338; Lowe v. Dalrymple, 117 Pa. 564; Yerkes v. Wilson, 81* Pa. 9; Com. v. Leed, 11 Phila. 296; Lauth v. Walker, 1 Penny. 165; Brinks v. Heise, 84 Pa. 246; Gill v. Henry, 95 Pa. 388; Becker v. Hammes, 2 Kulp, 404; Evans v. Maury, 112 Pa. 312; Reed’s App., 122 Pa. 578; Hood v. Fahnesstock, 8 Watts, 489; Foulk v. M’Farlane, 1 W. & S. 297.
178 Pa. 123Jones v. Pennsylvania Canal Co. (1896)Affirmed
Appeal, No. 294, Jan. T., 1896, by defendant, from judgment of C. P. Perry Co., Nov. T., 1890, No. 3, on verdict for plaintiff. Trespass for personal injuries. The facts appear by the opinion of the Supreme Court. Defendant’s points and answers thereto among others were as follows: 1. If the washout into which-the plaintiff fell, on February 23, 1890, was visible and manifest to the ordinary observer, it was the duty of the plaintiff to have avoided the hazard of taking to the footbridge in crossing the canal of the defendant, and to have gone by the manifestly safe way, the wagon bridge alongside, instead of the footbridge. Answer: We submit it to you as a question of fact to determine whether this plaintiff could or did see the plank at the west end of the bridge. And as we have instructed you in the general charge, if she knew the way was dangerous and could have avoided it she was bound to do so, or she cannot recover. [1] 5. The fact that the plaintiff found a plank resting on the west end of the footbridge was sufficient to put her upon notice and inquiry that there was something wrong at that point, and if she disregarded such notice and undertook to cross the hole on the plank, she was guilty of contributory negligence and cannot recover in this action. Answer: Refused. The question is one of fact for the jury to determine, whether that was sufficient notice or not to her and whether she was guilty of negligence in that particular. [5] 7. Under all the evidence in this case the plaintiff is not entitled to recover. Answer: Refused. [7] Verdict and judgment for plaintiff for $3,000. Defendant appealed. Errors assigned among others were (1, 5, 7,) above instructions, quoting them. cited Erie v. Magill, 101 Pa. 616; Wilson v. Charlestown, 8 Allen, 137; Centralia v. Krouse, 64 Ill. 19; Durkin v. Troy, 61 Barb. 437; Butterfield v. Forrester, 11 East, 60. cited Beach on Contributory Negligence, sec. 161; R. R. v. Van Steinburg, 17 Mich. 99; Wash v. Oregon R. & H. Co., 10 Ore. 250; Johnson v. Bruner, 61 Pa. 64; Longenecker v. P. R. R., 105 Pa. 332.
178 Pa. 128Borough of Shamokin v. Shamokin Street Railway Co. (1896)Reversed
Street railways — Repair of streets — •Contract boroughs. .- An ordinance of a borough granting to a street railway company the right to lay its tracks upon the streets of the borough, provided that the tracks should be laid upon the grade of the streets; that the company should “ maintain and keep in repair a road bed four and a half feet in width from the centre of their track, on either side of said centre,” that the company should use the same material in making such repairs that the borough might use for the same purpose or such other material as the borough should appi'ove; and that the company should on being notified so to do for fifteen days before the work was to begin join with the borough in the improvement of any street by repairing or macadamizing as the borough might elect, and repair and macadamize the nine feet of road provided for by the ordinance at its own cost. Held, that while the borough could not demand that the railway company should pay the cost of a pavement different in kind from what the borough .used, it could demand that the company should pay the cost of putting its tracks on the legal grade, and also its share of the cost of repairs as provided by the contract.
178 Pa. 134Nye v. Pennsylvania Railroad (1896)Reversed
Negligence — Railroads—Master and servant — Risk of employment. As track repairing or track cleaning after a snowstorm in the vicinity of moving trains is intrinsically a dangerous occupation, the fair presumption is not only that men who engage in it take the risks of their employment, but that they are competent to keep themselves out of manifest and unnecessary exposure to danger. In an action against a railroad company to recover damages for the death of one of its employees, it appeared that the deceased was killed while engaged in cleaning the tracks of snow in order to release a train which had become snow-bound. At the point where the accident occurred there were two tracks seven feet apart, and the deceased was directed to work on track No. 1. The deceased was killed by a delayed express train on track No. 2. The uncontradicted evidence of the superintendent was that owing to the stormy character of the day extra men were employed to keep the tracks clear of the snow; that he had at least one hundred gangs scattered along the road, engaged in this work, and that it would . have been impracticable to give the engineer of the delayed express train information that would have been of any use as to the gang in which deceased was employed, because the train which it was sent to release might have moved one hundred feet or a mile in ten minutes. Held, (1) That there was no evidence of negligence on the part of the railroad company sufficient to submit to the jury; (2) that the deceased had taken the risk of his employment; (8) that if, owing to the weather, the danger was greater than usual the railroad company was entitled to rely on the presumption that the deceased would not unnecessarily incur the danger.
178 Pa. 139Darr v. Pennsylvania Railroad (1896)Reversed
178 Pa. 140Miller v. McAlister (1896)Affirmed
Judgment — Fraudulent confession — Evidence. On an issue as to whether a judgment confessed by a debtor in failing circumstances for more than the sum due the creditor was confessed with intent to defraud other creditors, or to secure future advances, evidence that soon after the confession of the judgment another judgment was confessed to a third person for such fraudulent purpose is inadmissible against the judgment creditor, he having had no knowledge of such fact. Judgment for more than is due — Fraud—Issue to determine the validity of judgment. S. owed M. $700 on a promissory note, which ran for ten years without the payment of interest on it. At the end of the ten years it was agreed that the amount due M. was $1,025. M. then requested S. to give him a judgment. S. stated that lie would soon be called upon to pay over moneys which he held as a guardian, and at his request M. agreed that the judgment note should be drawn for$3,000, and that S. could draw upon him when the money was wanted. About two years afterwards M. advanced $800 to S. upon the security of the judgment. A short time afterwards S. died. There was no evidence that the note had been given for $3,000 with any fraudulent intent. In 1895, the amount actually due, including interest, was about $2,400. At the instance of another judgment creditor of S. an issue was framed to determine the validity of the judgment and, if valid, the amount due on it. Held, that a verdict and judgment for the plaintiff in the judgment should be sustained.
178 Pa. 148Commonwealth ex rel. Farmers' Bank v. Strickler (1896)Affirmed
Principal and surety — Bond of bank teller. In an action by a bank against the sureties of the teller it appeared by the plaintiffs statement of claim and by the declaration of plaintiff’s counsel that the case was tried on the theory that the teller had converted to his own use $1,000 of the bank’s money. The evidence showed that on a certain day the teller made an error in adding the items in the depositor’s column, amounting to $1,000. There was no evidence, however, that the bank actually sustained a loss by reason of the wrongful addition. Held, (1) that the trial court was not in.error in saying to the jury that “ a mere incorrect entry would not in itself impose an obligation on the defendant ; it would be necessary to show that a money loss accrued to the bank;” (2) that the burden of proof was upon the bank to show that an actual loss had been incurred.
178 Pa. 154Fink v. Farmers' Bank (1896)Reversed
Appeal, No. 14, May T., 1896, by defendants, from decree of C. P. Daupbin Co., Equity Docket, No. 172, on bill in equity. Bill in equity for an injunction and to compel the delivery of certain promissory notes. The case was referred to M. W. Jacobs as master, who reported the following facts: 1. The Farmers’ Bank of Harrisburg was incorporated by a special act of assembly, approved March 27,1873, for the purpose of carrying on the business of banking in the city of Harrisburg. 2. Immediately after its incorporation the said bank commenced business under its charter and so continued until February 20, 1893, when it was closed by its directors at the direction of the superintendent of banking, since which time its affairs have been in liquidation. 3. The charter contains the following provisions: “Sec. 5. That the affairs of said bank shall be conducted by a board of directors to be chosen as hereinafter directed and provided; that the said board of directors or a majority of them shall elect a president and a cashier from their own number and such other' officers as they may deem necessary, and fix the compensation of the same; and all officers shall give bonds with good securities, in such sums as may be required by said board, for the performance of their several duties. Sec. 6. That the said bank shall keep its office in some suitable place in the city of Harrisburg; and on the first Monday of May one thousand eight hundred and seventy-three and on the first Monday of May annually thereafter, after two weeks’ previous notice, the stockholders shall convene at the office of the bank and by ballot elect not exceeding twelve stockholders as directors (the number to be fixed by the by-laws), who shall continue in office one year or until their successors are elected; and the directors so elected shall annually elect one of their number president and one as cashier.” 4. Frederick C. Fink was elected cashier of the bank in May, 1873, and immediately entered upon the discharge of the duties of his office, and, in' pursuance. of the above provision of section 5 of the act of incorporation, executed and delivered to the bank a bond, dated July 21, 1873, in the sum of $20,000, with his brother, Henry Fink, the plaintiff, as surety, the condition of the bond being as follows : ■ “ The condition of the above obligation is such, that whereas the above bounden Frederick C. Fink has been appointed cashier in the said Farmers’ Bank, of Harrisburg, Pa.: Now therefore the condition of the above obligation is such that if the bounden Frederick C. Fink shall well, truly and faithfully perform all-the duties assigned to and trust reposed in him as cashier of the said Farmers’ Bank, of Harrisburg, Pa., so long as he shall continue in that capacity, then the above obligation to be void, otherwise to be and remain in full force, virtue and effect.” This bond was the only one ever given by said F. C. Fink to the bank to insure the faithful performance of his trust. 5. F. C. Fink was re-elected in May, 1874, and continued by annual elections held in May of each year thereafter in the office of cashier of said bank down to the time it was closed, when it was discovered that he had misappropriated the funds of the bank to a large amount, which was subsequently ascertained to be about $27,000. 6. This amount of money had been abstracted from the funds of the bank from time to time by the cashier without the assent of the directors or other officers, or any of them, and its absence had been concealed by substituting for it his own due bills, memoranda and demand notes, which were placed by him among the cash items in the drawer and accounted for as such cash items in the weekly statements made by him to the directors. When the first of these defalcations, or “ shortages,” as they are frequently called in the testimony, occurred, does not appear, but probably not before 1880 and certainly not earlier than 1875 or 1876; nor does the amount of the first defalcation appear, but the master finds that it did not exceed $5,000. 7. The directors met weekly, received the reports of the cashier, passed upon discounts, examined the expense account, passed to the surplus such funds as they deemed proper, and at stated periods declared dividends, but beyond that, at least since 1887, they appear to have exercised little or no oversight of the management of the bank. The cashier was a trusted official, enjoying the entire confidence of the directors, and into his hands was committed, beyond the matters already mentioned, almost the entire management of the bank, his reports, whether intended for their guidance and information or for publication under the banking laws, being accepted by them without question as correct. 8. In April, 1874, nine months after the bond referred to in paragraph 4 was given, the board of directors adopted by-laws, among which was the following: “ There shall be a committee to be known as the executive committee, to be composed of the president and two directors appointed by the board annually, whose duty it shall be to examine into the affairs of the bank every three months and a.t such other times as they may deem expedient, and report to the board at the first meeting after such examination.” 9. An executive committee was accordingly appointed, which continued from time to time to make quarterly reports that “ they had carefully examined into the affairs of the bank and had found everything in accordance with the cashier’s statement,” or “that they had carefully examined the assets of the bank and found them as stated in the cashier’s statement.” These examinations were made Avith apparent regularity down to the beginning of the year 1877, when they ceased and were never again resunied, and the master finds that the defalcations of the cashier began after these examinations ceased to be made. 10. Apart from the by-laws above ref erred to, the master finds from the evidence before him that it is the custom of Avell conducted banks to verify periodically the statements of their cashiers by actual physical examination of the assets of the bank; that had such examinations been made by the directors of the Farmers’ Bank, the abstraction of cash from the funds of the bank by the cashier and the substitution therefor of his due bills, memoranda and demand notes, if done at all, would have been discovered; that said directors were negligent in failing to perform this duty, and that by their failure so to do the defalcations of the cashier in the manner in which they were made and the extent to which they grew were rendered possible. The master finds, however, in this connection, that the allegations contained in paragraphs 10 and 11 of the original bill are not supported by the eAridence, and there is no evidence tending to show that any one connected Avith the administration of the affairs of the bank was directly or indirectly connected with, connived at, or prior to February of 1893 knew of the defalcations of the cashier, either in whole or in part. 11. On February 17, 1893, the superintendent of banking, suspecting that the condition of the Farmers’ Bank was not what the published reports of its cashier and directors showpd it to be and for other reasons which do not clearly appear by the testimony, caused an examinationinto its affairs tobe instituted, with the result that he on that day discovered the cashier to be a defaulter to an amount exceeding $25,000. Later in the afternoon of the same day he called together some of the director’s at the banking house and informed them of his discovery. The ■cashier being called before them admitted the defalcation and the approximate accuracy of the amount alleged, produced the bond referred to above in paragraph 4, and stated that the plaintiff, who was surety on the bond, would stand good for $20,000, the amount of his bond. He was thereupon directed to communicate with the plaintiff and report the result of his interview at a meeting of the directors to be held later in the evening. He accordingly called upon the plaintiff, laid before him his trouble and reminded him that he, the plaintiff, was on his bond, and at the subsequent meeting of the directors reported that he had seen the plaintiff and suggested that some of the directors should call upon him. In pursuance of this suggestion one of the directors, who was also their legal adviser, called upon the plaintiff at his place of business early the next morning. The interview was a brief one and went little beyond fixing a time for the plaintiff to meet the directors at the banking house. It is to be noted, however, that in this interview the plaintiff spoke of being on his brother’s bond and declared his intention of paying the amount of it. A few hours later the plaintiff called at the banking house and there met three of the directors, among whom was their legal adviser. Without much preliminary conversation, after an offer of certain railroad bonds had been made and rejected, the plaintiff offered the four notes mentioned in the bill of complaint, one of which was for $5,000 and each of the others for a like sum with interest, in payment of the amount of the bond, and his offer was accepted. The notes were accordingly drawn up, signed by the plaintiff and handed over to one of the directors, and the bond, which in the meantime had been lying on the table before the parties unopened and unread, was surrendered to the plaintiff. 12. The plaintiff was unattended by counsel and had previously consulted none, and his attention was not called to the terms of the bond, but he made no inquiry of the directors present- or either of them with respect to his liability on the bond, or with respect to the affairs of the bank or the defalcation of the cashier, and no statement was made to him by them or either of them with respect to these matters; nor was there, so far as appears by the evidence, any intentional concealment by them or either of them from him of any fact relating to these matters, nor any willful misrepresentation, either at this time or before, of any matter affecting his liability. 13. The master finds that the four notes referred to in the bill of complaint were given, partly at least, in satisfaction of the bond, and that they were given in the belief shared at that time by all parties, that the same was a continuing bond and that the plaintiff was liable thereon for the defalcations of the cashier ; but he further finds that in giving said notes the plaintiff was moved, not merely by his belief that he was liable on the bond, but also by a desire to relieve the • cashier, who was his brother, to continue him in his employment and to save the family name from disgrace. 14. A few days after the notes were given by the plaintiff the amount represented by them was credited in the books of bank in the hands of the agent for liquidation upon the indebtedness of F. C. Fink to the bank, and a judgment bond in the sum of $10,000 was given by said F. C. Fink to cover the remainder of his indebtedness, and judgment thereon was entered in the court of common pleas of Dauphin county. But there is no evidence that said credit was given in pursuance of any agreement or understanding with the plaintiff or that he knew it had been given. 15. Two or three days after the notes were given or possibly the next day, F. C. Fink transferred to the plaintiff a policy of insurance on his life, a few shares of stock in the Farmers’ Bank and a small amount of other property. F. C. Fink was at that time indebted to the plaintiff in the sum of $1,000, and the latter was also indorser for him on notes in the Farmers’ Bank aggregating about $3,500, which were subsequently paid by the plaintiff. There is no evidence showing any direction by F. C. Fink that these securities should be applied to any particular account or that they were applied to any particular account by the plaintiff. 16. At the time the notes were given and for several days thereafter it appears to have been the intention of the directors to make good the impairment of the capital stock and continue the business of the bank, to which course the superintendent of the banking department appears at first to have assented, but for some reason which has not been fully explained, the latter subsequently changed his mind and insisted upon the business of the bank being wound up, and the directors yielding to his demand closed the bank and placed its affairs in the hands of the defendant, Edward Bailey, as agent for liquidation. 17. At the time the bill was filed three of the notes above mentioned were unnegotiated and in the hands or under the control of the defendants. The note for $5,000 falling due first was paid at maturity by the plaintiff. It may not be out of place for the master to state briefly his reasons for the 13th finding of facts, as it contains matters of considerable materiality in the case. It is true that the answer of the defendants is responsive to the bill and denies that the notes were given in satisfaction of the bond, or that they were given in mistake as to the liability of the plaintiff thereon; and it is also true that the plaintiff himself is the only witness who testifies directly in support of the allegations of his bill on this point. But in the opinion of the master there are corroborating circumstances equivalent to the testimony of a second witness. The bond was constantly brought forward. It was laid by the cashier before the superintendent of banking and the directors with a statement that the plaintiff would pay the amount of it. In the evening of the same day the cashier reminded the plaintiff that the latter was surety upon it. Early the next morning when the director, who was also the legal adviser of the directors, visited the plaintiff at his place of business, the fact that the latter was on the bond was mentioned by both, and the plaintiff declared his intention “ to pay it.” A few hours later, when the plaintiff met the directors at the banking house, the bond was produced and laid upon the table before the parties while the negotiations proceeded, and upon the execution and delivery by him of notes for the exact amount of the bond with interest to the maturity of the notes — except upon the first note maturing in about thirty days — the bond was given over to and taken away by him. The plaintiff testifies that he at the time considered himself liable upon tbe bond, and tbe gentleman who was both director and counsel for the directors, and was present at the meeting of the parties in the banking house, was at that time of the same opinion. Upon all the evidence it is impossible to escape the conclusion that there existed in the minds of all the parties a belief that the plaintiff was liable upon the bond, and that the notes were given, in part at least, in satisfaction of his supposed liability. The second branch of the thirteenth finding of facts rests partly upon the admissions of the plaintiff himself and partly upon the evidence to the same effect introduced by the defendants. While insisting that at the time the notes were given he supposed himself to be liable upon the bond, he stated in his testimony that he was moved by other motives also. They were, first, his supposed liability upon the bond; second, Ms desire to relieve his brother, and, third (which was probably incidental to the second) his expectation that the bank would contmue to do business. Upon the third he himself appears to lay the most stress, although he does not allege that any promise or inducement was held out to him by -the directors that the business of the bank would be continued or that he asked for any such assurance, but he alleges that he was misled by the published reports of the bank, which showed its affairs to be in good condition, whereas in fact they were not so. Upon the other side several of the directors testified that before and at the time the notes were given the plaintiff declared that even if he was not legally bound he was morally bound, and intended to pay the bond. This the plaintiff denied. It was further testified that the plaintiff, at the time he gave the notes, declared that he gave them to relieve his brother, and that he was desirous of having preserved “the good name of Fink;” and still further that just before the notes were given he requested the directors not to prosecute his brother and asked for a promise to that effect in writing, and that such promise was refused upon the ground that it would be unlawful and would afford no protection, whereupon his request was withdrawn. The attention of the plaintiff was not called to those matters, although he subsequently appeared upon the witness stand. Without attempting any specific finding as to the precise language used by the plaintiff, it sufficiently appears that he was largely influenced to give the notes by his desire to aid his brother, and that he substantially so stated to the directors at the time. Paragraphs 10 and 11 of the original bill are as follows: [10. That plaintiff believes a settlement or payment of a large part of said defalcation was made some years ago with Daniel Eppley, then president of the bank, or some other officer, that he is not informed of the date or nature of such payment or settlement, and had no knowledge thereof until after he had given the notes. 11. That plaintiff believes a large part of said defalcation was the result of certain joint speculations of F. C. Fink and others connected with the administration of the affairs of the bank, the particulars of which he is not informed of.] ******** Upon the facts found and for the reasons given in the foregoing discussion the master concludes as matter of law as follows : 1. The plaintiff was not discharged from liability as surety upon the bond mentioned in paragraph 4 of plaintiff’s original bill by reason of any negligence on the part of the officers or directors of the defendant bank. 2. Said bond was an annual bond upon which the plaintiff was responsible for the good conduct and fidelity of F. C. Fink as cashier of said bank, only during the term to which said F. C. Fink had been elected at the time said bond was given, to wit during the year ending May, 1874. 3. The plaintiff was not, at the time the notes, mentioned in. paragraph 5 of his original bill, were given, liable upon said bond for any part of the defalcation or defalcations of said F. C. Fink in the pleadings mentioned. 4. Said notes are and each of them is without any consideration in law or equity to support them or it. 5. Said notes having been given without consideration and in the mutual mistake of all parties that, the plaintiff was, as surety upon said bond, liable for the defalcations of said F. C. Fink in the pleadings mentioned, and said notes being negotiable, and, at the time of the filing of thé bill in this case, not yet due, the plaintiff is entitled to equitable relief against the payment of said notes. 6. Upon the facts found by the master the plaintiff is entitled to a decree for the delivery up to him and cancelation of the second, third, and fourth notes mentioned in paragraph 5 of plaintiff’s original bill. 7. Under all the circumstances of the case the costs of these proceedings should be paid by the Farmers’ Bank, defendant. The court in an opinion by Simonton, P. J., affirmed the sixth conclusion of law as found by the master, and entered the following decree: And now, February 19, 1896, this cause came on to be heard on exceptions to the master’s report and was argued by counsel, whereupon, upon due consideration thereof, it is ordered, adjudged and decreed as follows, to wit: 1. That the exceptions to the master’s report be and the same are hereby overruled. 2. That the said Edward Bailey, liquidating agent of the Farmers’ Bank of Harrisburg, or such others of the defendants as may be in possession or control of the same, be and they are hereby required and directed to deliver up to the plaintiff for cancellation the second, third and fourth promissory notes mentioned and described in paragraph 5 of plaintiff’s original bill, to wit: One note dated February 18, 1893, for five thousand (5.000) dollars, due July 4, 1893, with interest from date, amounting at maturity to five thousand one hundred and ten (5,110) dollars; one other note dated February 18, 1893, for five thousand (5,000) dollars, due October 5, 1893, with interest from date, amounting at maturity to five thousand one hundred and eighty-eight dollars and eighty-three cents ($5,188.83), and one other note dated February 18,1893, for five thousand (5.000) dollars, due January 4, 1894, with interest from date, amounting at maturity to five thousand two hundred and sixty-three dollars and thirty-three cents ($5,263.33), upon surrender to the defendants of the bond described in plaintiff’s original bill. 3. That the Farmers’ Bank of Harrisburg pay the costs of these proceedings. Error assigned among others was above decree, quoting it. • There was a settlement of compromise of a doubtful liability: Hagey v. Detweiler, 35 Pa. 412. If a compromise of a doubtful right is fairly made between parties, its validity cannot depend upon any future adjudication of that right: Stevens v. Lynch, 12 East, 38; Bidwell v. Catton, Hobart, 216; Brown v. Pring, 1 Ves. Sr. 407; Gibbons v. Caunt, 4 Ves. Sr. 849; Gordon v. Gordon, 3 Swanst. 470; Pickering v. Pickering, 2 Bevan, 31, 56; Goymour v. Pigge, 8 Jurist, p. 526; Leonard v. Leonard, 2 Ball & Beatty, 179, 180; Shotwell v. Murray, 1 Johns. Ch. 516; Lyon v. Richmond, 2 Johns. Ch. 61; Dunnage v. White, 1 Swanst. 151, 152; Harvey v. Cooke, 4 Russell, 34; Stewart v. Stewart, 6 Clark & Finnelly, 969; Longridge v. Dorville, 7 Eng. C. L. R. 43; Lucy’s Case, 4 De G., M. & G. 355; Callisher v. Bischoffsheim, L. R. 5 Q. B. 450; Balfour v. The Sea Fire Life Assurance Co., 91 E. C. L. R. 300; Oxford v. Barelli, 20 W. R. 116; Miles v. New Zealand Alford Est. Co., 32 L. R. Ch. Div. 283; Sibree v. Tripp, 15 M. & W. 29; Sowerby v. Butcher, 2 Cr. & M. 367; Baker v. Walker, 14 M. & W. 467; Poplewell v. Wilson, 1 Strange, 264; Babcock v. Hawkins, 23 Vt. 561; Russell v. Cook, 3 Hill, 504; Barlow v. The Ocean Insurance Co., 4 Metc. 270; Tuttle v. Tuttle, 12 Metc. 551; Hubbard v. Coolidge, 1 Metc. 84, 92, 93; Burr v. Wilcox, 13 Allen, 273; Taylor v. Patrick, 1 Bibb. 168; Stoddard v. Mix., 14 Ct. 12; Clark v. Sigourney, 17 Ct. 511; Titus v. Ash, 24 N. H. 319; Perkins v. Bumford, 3 N. H. 522; Day v. Gardner, 5 Cent. Rep. 630; Grandin v. Grandin, 8 Cent. Rep. 587; Rue v. Meirs, 10 Cent. Rep. 682; Devecmon v. Shaw, 12 Cent. Rep. 886; Given v. Corse, 2 W. R. 579; Valle v. Picton, 8 W. R. 734; Bank v. Geary, 5 Peters (U. S.), 99, 114; The Richardson & Boynton Company v. The Independent District of Hampton, 70 Ia. 573; Adams v. Morton, 37 Ia. 255; Goodrich et al. v. Stanley, 24 Ct. 613; Naylor v. Winch, 1 Sim. & Stuart, 555; 1 Story’s Eq. sec. 131; 2 Pomeroy’s Eq. Jur. sec. 855; Hunt v. Brown, 5 New England Rep. 810; Story on Contracts, sec. 440; Perkins v. Gay, 3 S. & R. 325; Barton v. Wells, 5 Whart. 225; O’Keson v. Barclay, 2 P. & W. 531; Brown v. Sloan, 6 Watts, 421; Logan v. Mathews, 6 Pa. 417; Chamberlain v. McClurg, 8 W. & S. 31; Muirhead v. Kirkpatrick, 21 Pa. 237; Blockley v. Blockley, 122 Pa. 1. There was forbearance to sue and an agreement to forbear: Clark v. Russel, 3 Watts, 217; Lyth v. Ault & Wood, 7 W. H. & G. 669; Hamaker v. Eberley, 2 Binn. 505; Johnes v. Potter, 5 S. & R. 519; Silvis v. Ely, 3 W. & S. 420; Saalfield v. Manrow, 165 Pa. 114. There was payment of the brother’s indebtedness: Popple v. Day, 123 Mass. 520; Sykes v. Chadwick, 18 Wall. 141; Baker v. Walker, 14 M. & W. 467; Armstrong v. Southern Express Co., 4 Baxter, 376; Conmey v. Macfarlane, 97 Pa. 361; Forster v. Fuller, 6 Mass. 58; Delano v. Bartlett, 6 Cush. 364; Cumber v. Wane, 1 Sm. Leading Cas., 595; Corbet v. Cochran, 2 Hill (S. C.), 41; Hind v. Holdship, 2 Watts, 104; Osgood v. Franklin, 2 Johns, Ch. Rep. 23; Esling v. Zantzinger, 13 Pa. 50. There was a surrender of the bond: Shortrede v. Cheek, 1 Adolph. & Ellis, 37; Smith v. Smith, 13 C. B. N. S. 429; Lawrence v. McCalmont, 2 How. 426; Goodman v. Simonds, 61 U. S. 343; Droper v. Hitt, 43 Vt. 439; Churchill v. Bradley, 58 Vt. 403; Newhall v. Paige et al., 10 Gray, 366; Bank v. Coit, 7 Cent. Rep. 39; Coggins v. Murphy, 121 Mass. 166; Wilton v. Eaton, 127 Mass. 174. There was a change in the position of the parties: Cook v. Wright, 1 B. & S. 559. Continuation of the business of the bank was possible: Sickles v. Herald, 149 N. Y. 332; St. Mark’s Church v. Teed, 120 N. Y. 583. The bond was continuing: Lord Arlington v. Merricke, 2 Saunders, part II. p. 411; Liverpool Water Works Co. v. Atkinson, 6 East, 507; St. Saviour’s Wardens v. Bostock, 5 Bos. & P. 175; Hassell v. Long, 2 M. & S. 363; Peppin v. Cooper, 2 B. & A. 431; Leadley v. Evans, 2 Binn. 32; Kitson v. Julian, 4 E. & B. 854; Mayor of Cambridge v. Dennis, 96 E. Com. Law Rep. 660; Com. v. Fairfax, 4 Hen. & Mun. (Va.) 208; Amherst Bank v. Root, 2 Metc. 522; Chelmsford Co. v. Demarest, 7 Gray, 1; Treasurer v. Mann, 34 Vt. 371; State v. Wayman, 2 Gill & J. (Md.) 254; Exeter Bank v. Rogers, 7 N. H. 21; Mut. Loan & Building Assn. v. Price, 16 Fla. 204; Boston Mfg. Co. v. Messinger, 2 Pick. 223; Richardson School Fund v. Dean, 130 Mass. 242; South Carolina Society v. Johnson, 1 McCord, 41; Moss v. State, 10 Mo. 338; Mayor v. Crowell, 40 N. J. Law, 207; Thompson v. State, 37 Miss. 518; People v. Beach, 77 Ill. 52; Com. v. Drewry, 15 Grattan, 1; State ex rel. Jackson Twp. v. Berg, 50 Ind. 496; State v. Kurtzebom, 78 Mo. 98; Long v. Seay, 72 Mo. 648; B. & L. Assn. v. McMullen, 1 Penny. 431; Shackamaxon Bank v. Yard, 143 Pa. 129; Bank v. Barrington, 2 P. & W. 27; Oswald v. Mayor of Berwick, 5 H. of L. Cases, 856; Dedham Bank v. Chickering, 3 Pick. 335; Savings Loan Co. v. O. F. Hall Assn., 48 Pa. 446; Elam v. Bank, 13 Va. L. J. 384., s. c., 9 S. E. Rep. 498 (Va. Ct. of App. 1889); Humboldt S. & L. Assn. v. Wennerhold, 20 Pac. Rep. 553 (Cal. 1889). There was no material mistake: Meredith v. Haines, 14 W. N. C. 364; Kelly v. Solari, 9 M. & W. 54; 2 Pomeroy’s Eq. 843. If there was a mistake of law, there could be no relief: Heacock v. Fly, 14 Pa. 540; Gross v. Leber, 47 Pa. 520; Russell’s App., 75 Pa. 269; Wilson v. Ott, 173 Pa. 253; Lansdown v. Landsdown, Mosely, 364; s. c., 1 Jac. & W. 502; Bank of U. S. v. Daniel, 12 Peters, 32; Upton v. Tribilcock, 91 U. S. 45; Fish v. Cleland, 33 Ill. 243; Starr v. Bennett, 5 Hill, 303; Lewis v. Jones, 4 B. & C. 506; Rashdall v. Ford, L. R. 2 Eq. 750; Bank v. Daniel, 12 Pet. 32; Hunt v. Rousmanier, 1 Pet. 1; s. c., 8 Wheat. 174; Mellish v. Robertson, 25 Vt. 603; Leavitt v. Palmer, 3 N. Y. 19; Bingham v. Bingham, 1 Ves. Sr. 126; Cooper v. Phibbs, L. R. 2 H. L. 149; Good v. Herr, 7 W. & S. 253; Hunt v. Moore, 2 Pa. 109; George’s App., 12 Pa. 260; McAninch v. Laughlin, 13 Pa. 370; Rankin v. Mortimer, 7 Watts, 372; Clapp v. Hoffman, 159 Pa. 531. cited as to the nature of the bond: Mut. Building & Loan Assn. of McKeesport v. McMullen, 1 Penny. 431; Shackamaxon Bank v. Yard, 143 Pa. 129. As to the status of the notes substituted for the bond: Com. v. West, 1 R. 299; Loan Co. v. O. F. Hall Assn., 48 Pa. 449; McNutt v. Loney, 153 Pa. 281; Nace v. Boyer, 30 Pa. 110; Conmey v. Macfarlane, 97 Pa. 361. As to the question of mistake: 2 Pomeroy Eq. Jur. sec. 849, p. 1178.
178 Pa. 171Commonwealth v. Anderson (1896)Affirmed
Appeal, No. 10, May T., 1896, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1894, No. 438, on case tried by the court without a jury. Appeal from settlement for tax upon fees of office. The case was tried by the court without a jury under the act of April 22, 1874. McPherson, J., filed the following opinion: This case was tried without a jury under the act of 1874. We find the facts to be as follows: 1. The defendant was elected to the three offices of register of wills, recorder of deeds and clerk of the orphans’ court of Fayette county, and entered upon the discharge of his duties on the first Monday of January, 1892. 2. During the year 1893, the fees which he received from these offices aggregated $7,763.21. This sum appears upon the report of Joseph Carroll, an auditor appointed by the court of common pleas of Fayette county under section 10 of the act of 1846, P. L. 415. 3. Mr. Carroll’s report, which was filed in the auditor general’s office on March 22, 1894, charges the defendant with the sum of $7,618.56, “amount of fees received, charged during the current year,” and with the sum of $144.65, “ amount of fees received, charged during the previous year; ” making the above-stated aggregate of $7,763.21. The report does not state separate accounts with the defendant as register of wills, recorder of deeds and clerk of the orphans’ court. 4. The report of the auditor credited to the office of register of wills a salary of $2,000, and clerk hire amounting to $3,221.51, making a total of $5,221.51; which amount deducted from the gross amount of fees with which the defendant is charged leaves an excess of fees of $2,541.70. From this amount a further deduction of fifty per cent is made in favor of the defendant; leaving abalance of $1,270.85 due from him to the commonwealth on account of fees. For this amount a settlement was made against the defendant as register and recorder of Fayette county, on May 28,1894, and from this settlement an appeal was taken to the court of common pleas of Dauphin county in due form and within the time allowed by law. 5. No salary was allowed by the accounting departments of the commonwealth to the defendant in his capacity of recorder of the orphans’ court. 6. No appeal was taken either by the commonwealth or the defendant from the report of the auditor. The questions raised by these facts have already been decided in Com v. Conway, 2 Dist. Rep. 429. In accordance with that opinion we conclude that the commonwealth is entitled to recover as follows: Balance,.......$1,270 85 Interest from July 23, 1894, to May 6, 1895, at 6 per cent per annum, .... 60 37 Attorney general’s commission, 5 per cent, 63 54 Total......$1,394 76 For which amount we direct judgment to be entered if exceptions are not filed according to law. Exceptions that the court erred in its conclusions of law, and in not directing judgment for defendant, were overruled and judgment directed in accordance with above opinion. On an additional exception filed, McPherson, J., filed the following opinion: Since the entry of judgment in this case the attorney general has agreed that the defendant may file the following additional exception to the ruling of the court: “ The court erred in directing judgment in favor of the commonwealth and against the defendant, because the settlement of the auditor general and state treasurer which purports to have been made under the act of April 2, 1868, sec. 8, P. L. 11, is in fact a settlement under the act of May 6, 1874, P. L. 125; and if the proviso in said last mentioned act is so construed as to allow tbe defendant but one salary for the several offices which he holds, thus discriminating against him and in favor of other persons who hold like offices separately, it is unconstitutional, null and void, being contrary to article IX. section 1 of the constitution, as well as article III. section 7, clause 2.” The defendant’s argument is, that the body of the act of 1874 repeals all preceding acts on this subject, because it provides a new system for taxing the fees of officers in counties having less than one hundred and fifty thousand inhabitants ; but that the proviso of the act is void because it offends against article IX. of the constitution providing for uniformity of taxation, and against article III. section 7, forbidding the legislature to pass “ any local or special law .... regulating the affairs of counties . . . . ” In our opinion this position is unsound throughout. It is not the proviso, however, but the whole act which the defendant ought to attack, if he desires to insist upon an alleged violation of article III. section 7, for it is not the proviso but the body of the act which confines its scope to counties having a specified population. But whatever may be his point of attack we believe that the act of 1874 does not offend against article III. section 7, because it is not a local or special law. It applies to all the counties of the state containing less than one hundred and fifty thousand inhabitants; and while statutes upon certain other subjects having a similarly restricted scope have been held to be unconstitutional in several cases which it is not necessary to cite, the act in question is valid because it is restricted by the constitution itself to the class or subject with which it deals, and therefore is not within the reason of these decisions. In effect this was declared in Morrison v. Bachert, 112 Pa. 322. The subject of the act then under consideration was the fees which the citizens of the state should pay in consideration of the services rendered by certain officers. The statute was held to be unconstitutional because it excluded permanently from its provision every county containing more than one hundred and fifty thousand inhabitants ; its subject being clearly a county affair upon which local legislation was prohibited. But the court was careful to distinguish between a fee considered as a sum which the citizen is to pay, and a fee considered as the sum which the officer is to receive. In the latter aspect the constitution itself has made a classification which, the legislature is not at liberty to disregard. “ It is further to be observed,” Mr. Justice Paxson says on page 330, “ that so far as the compensation to county officers is concerned the constitution has classified the counties of the state.” Moreover the act of 1874 does not in any respect regulate “ the affairs of counties.” It does not increase or diminish the fees which the officers are to receive — thus affecting the people who pay, as well as the officer who earns, the fees. Leaving the amount of his fees to be determined by other statutes, the act of 1874 is concerned simply with the subject of taxation by the state upon the receipts of the office. This treats a fee as the compensation of the officer, and taxes it in his hands as his property. From this point of view bis fees are in no sense a county affair. The act affects the profits of the officer and the receipts of the state treasury, but, except remotely, no other consideration is involved. Therefore even if the act is to be regarded as local it is not forbidden by the clause to which we have just referred. Neither is it forbidden by section 1 of article IX., which requires uniformity of taxation within the limits of a particular class. The body of the act provides for taxation upon a certain subject, namely: the fees of one office when received by a person who holds no other office, while the proviso imposes a tax upon a different subject, namely: the aggregate fees of several offices when they are held by the same person. These two classes are formed in the exercise of the legislative power to classify subjects for taxation, and if the power has been lawfully exercised, article IX. has not been violated, for the act bears uniformly upon every subject in each class. Considering the wide discretion left to the legislature in this matter of classification, we decline to hold that the act in question offends against the constitutional provision by putting into one class those offices of which each is held by a separate person, and ■ putting into another class those offices of which two or more are held by the same person. The following cases will illustrate the extent of the power to classify: Com. v. Germania Brewing Company, 145 Pa. 83; Com. v. Westinghouse Company, 151 Pa. 272; Com. v. National Oil Company, 157 Pa. 516; Com. v. Sharon Coal Company, 164 Pa. 304; Pittsburg v. Coyle, 165 Pa. 61; Williamsport v. Wenner, 172 Pa. 182. This disposes of the defendant’s exception; for even if the act of 1874 is looked upon as furnishing a new system of taxing fees of office in counties containing less than one hundred and fifty thousand inhabitants (as the defendant contends) his position is no better than it was under the 8th section of the act of 1868, P. L. 11, unless he can divide the act of 1874 as the exigency of his argument requires. He must sustain the body of the latter act as a substitute for the section referred to, but must get rid of the proviso before he can escape the taxation he is now resisting. The commonwealth sefemed content to rest its case upon the act of 1868, apparently believing that the entire act of 1874 was local and unconstitutional. It may be as well therefore to repeat briefly that in our opinion tins position is not correct. For the reasons already outlined, the cases cited by the learned deputy attorney general in support of his view do not sustain it, if we understand their scope. So far as the compensation of county officers is concerned, the constitution in article XIV. section 5, has certainly classified the counties of the state. It there directs that “in counties containing over one hundred and fifty thousand inhabitants, all county officers shall be paid by salary; ” and thereby has divided the counties of the state into two classes, one having a population of over one hundred and fifty thousand, and the other containing a population less than that number. Therefore, in taxing the compensation of county officers by the act of 1874, it was not only proper for the legislature to confine its attention to the officers in the latter class, but it would have been practically useless to do otherwise. To have made the act apply to officers in the former class would certainly have violated the spirit, at least, of the constitution which enjoined the legislature to provide for the payment of salaries to officers in tins class. Moreover, while it is true that the preceding statutes fixing the compensation and taxing the fees of officers in counties containing more than one hundred and fifty thousand inhabitants continued in force until the passage of the act of 1876, P. L. 13, which established a new system in these counties; and while therefore it may perhaps be true that the act of 1874 might conceivably have been so framed as to embrace formally, and for a year or two, the fees of office received in all the counties of the state, this would have been a formal and temporary inclusion only. In the counties of the first class the officers ceased to receive fees for their own benefit after the act of 1876 provided salaries for their compensation; and therefore any tax upon fees which might have been imposed by the act of 1874 would have disappeared ipso facto with the officers’ interest in the fees themselves : Com. v. Mann, 168 Pa. 290. Manifestly, as it seems to us, the legislature in 1874 properly excluded the class of counties containing more than one hundred and fifty thousand inhabitants, reserving that class for the separate treatment which it received two years later in accordance with the command of the constitution. The act of 1874 is almost an exact transcript of the 8th section of the act of 1868, and the reason why it was enacted is to be found in the last section of the act of 1868, which exempts a few counties from the operation of that statute. The act of 1874 follows the constitutional classification, and extends the scope of section 8 of the act of 1868 so as to embrace those counties theretofore exempt which belong to the class with which it is concerned; the result being that the fees of office in all the counties of this class are now taxed by the acts of 1868 and 1874, except perhaps the fees of the clerk of the oyer and terminer. The omission of this particular office has been recently considered in Com. v. Fry., No. 24, commonwealth docket, Dauphin common pleas; and it is mentioned now only because it might otherwise appear to have been overlooked. It has no effect upon the question raised in this controversy. The defendant’s additional exception is accordingly overruled, and the judgment already entered will continue to stand as the judgment of the court. Error assigned was in entering judgment for the commonwealth. The report of the county auditors upon the county treasurer’s account is conclusive, as against both the officer and the commonwealth, ■unless appealed from within the time limited by the act: Glatfelter v. Com., 74 Pa. 74; Siggins v. Com., 85 Pa. 278; Blackmore v. Allegheny County, 51 Pa. 160. The defendant contends that he is entitled to receive a salary of or at least to have credited to him an amount up to $2,000 for each office he holds, before dividing with the commonwealth. The tax on offices in all counties containing less than one hundred and fifty thousand inhabitants must be settled and collected under the act of May 6, 1874, P. L. 125, and not under the act of April 2, 1868, sec. 8, P. L. 11, the act of 1874 being a statute embracing the essential provisions of the antecedent one on the same subject, and formulating a new system: Com. v. Mann, 168 Pa. 297. While the tax on offices must be levied and collected under the act of 1874, that tax must fall equally upon every county of the state, and under the operations of the proviso to this act that is impossible. The proviso fixing a different rate or percentage for determining the tax on offices which are held separately, from that determined for offices held together, is in violation of article IX. section 1 of the constitution, and being a regulation of the affairs of counties is in violation of article III, section 7, clause 2.
178 Pa. 180Harrisburg National Bank v. Bradshaw (1896)Reversed
Appeal, No. 16, May T., 1896, by plaintiff, from judgment of C. P. Dauphin Co., June T., 1895, No. 408, on trial by court without a jury. Foreign attachment in assumpsit on promissory note. Simonton, P. J., found the facts to be as follows: This case was tried by the court without a jury as provided by the act of April 22,1874. It is an action in which the plaintiff seeks to recover from the defendant the sum of $10,817.97, •with interest from December 20, 1894, upon the following EACTS. 1. In July, 1889, Miss Elizabeth Reily indorsed a note for $10,000 for the accommodation of her brother, John W. Reily, which was discounted for him by the Harrisburg National Bank, with knowledge that she was an accommodation indorser, and when this note matured on November 4, 1889, she in like manner indorsed a like note in renewal of the first. Before the second note matured she became the wife of Walter J. Bradshaw and executed jointly with him a power of attorney to G. M. McCauley, which is attached to plaintiff’s statement filed in this case, and is hereby referred to and made part of this finding. 2. After her marriage and the execution and delivery of this power of attorney she removed to Helena, Montana, where she resided when the second note matured on March 7, 1890. On that day the attention of her attorney was called to this note by the president of the bank, who asked him to indorse a note in renewal. Mr. McCauley expressed doubt whether he had authority so to. do, and the president said, if he would indorse it, it would be satisfactory, which he then did. He had no knowledge of the ^execution of the note until this time, and Mrs. Bradshaw had not mentioned it to him nor given him any authority to act for her except the power of attorney above referred to. No protest or notice of nonpayment was made or given as to the note which then matured. At this time the balance to the credit of John W. Reily on the books of the bank was $2,558.06. 8. Thereafter at intervals of four months until August 17, 1894, notes each in renewal of the preceding one were given to the bank with the accommodation indorsement of Elizabeth R. Bradshaw, the defendant. None of these renewal notes was protested, and there were intervals of, in some cases, two or three days, and in others as many weeks, between the maturity of a given note and the indorsement and delivery of the renewal. Most of the notes when matured and renewed were delivered to the attorney of John W. Reily and Mrs. Bradshaw, and the renewal interest was paid by him, on account of John W. Reily. 4. When the last note matured on December 20, 1894, it amounted with interest to $10,817, and it was duly protested and notice of nonpayment was sent to the defendant. The court entered judgment for defendant. jError assigned was entry of judgment for defendant. All of the notes subsequent to the original were “ renewals ” and were so marked. They were not payments in any sense, nor were they shown to have been tendered or accepted as such. They could not have been considered as payments unless it was clearly shown that they were so intended: Randolph on Com. Paper, sec. 1511; Daniel on Neg. Instruments, sec. 1266; Ritter v. Singmaster, 73 Pa. 400; Brown v. Scott, 51 Pa. 357. If the renewals in question were not payments, but operated simply as a suspension of the right of action, the obligation evidenced by the contract remained, and necessarily related back to the origin of the debt: Overholt v. Mt. Pleasant Bank, 82 Pa. 490; Stephens v. Bank, 88 Pa. 157. If this contention be sound, it seems to follow that the true test of liability in-the present case must depend upon the question whether or not an antenuptial contract of indorsement falls Avithin the prohibition of the acts of 1887 and 1893. It may be safely assumed that these acts did not impose any additional restrictions upon married women. On the contrary, their plain import is to enlarge the powers of a feme sole except in certain specified particulars: Real Est. Co. v. Roop, 132 Pa. 496; Koechling v. Henkel, 144 Pa. 215. Under the proviso to the act of April 11, 1848, a married woman Avas liable for a debt contracted by her before marriage, but she could not give a bond or confess judgment in satisfaction of such debt: Glyde v. Keister, 32 Pa. 87; Finley’s App., 67 Pa. 453. Since the acts of 1887 and 1893, she can confess a judgment, or do any other act in recognition of her liability in such cases, to the same extent as if she were feme sole: Adams v. Grey, 154 Pa. 258; McCormick v. Buttorf, 155 Pa. 331; Mitchell v. Richmond, 164 Pa. 566; Mahon v. Gormley, 24 Pa. 80. Demand and notice are not parts of the contract, but mere steps in the remedy, Avhich may be waived by the indorser: Barclay v. Weaver, 19 Pa. 396. If the indorser had remained a feme sole, she would undoubtedly have been bound, and if in case the last note had been lost she had been sued on the original note or any of the intermediate renewals, her conduct would clearly have amounted to a waiver of demand and notice: Sherer v. Bank, 33 Pa. 134. It is not contended that an antenuptial contract cannot be enforced against a married woman. The argument of the learned counsel.for appellant seems to be based upon the theory that the antenuptial contract of accommodation indorsement fixed upon the appellee an absolute liability to pay the note of November 4, 1890. No such liability, however, was created by the indorsement. Her liability, as is well settled, was only conditional or contingent: McKinney v. Crawford, 8 S. & R. 357; Brenzer v. Wightman, 7 W. & S. 266. In the light of these, and many other decisions of like import which might be cited, we confidently contend that the contingent liability arising from the accommodation indorsement of the appellee, dum sola, never became fixed and absolute. The failure to give due notice of the nonpayment of the note, maturing March 7, 1890, effectually discharged her from her contingent liability. The subsequent renewals signed by her were “ new undertakings,” which she was not competent to make, for the acts of 1887 and 1893 expressly continue the disability' of a married woman to “ become the accommodation endorser, guaranty or surety for another:” Patrick & Co. v. Smith, 165 Pa. 526.
178 Pa. 186Cheetham v. McCormick (1896)Reversed
Appeals, Nos. 17 and 19, May T., 1896, by defendant, from judgments of C. P. Dauphin Co., Commonwealth Docket, 1895, Nos. 25 and 26, granting a peremptory mandamus. Petition for mandamus. Before Simonton, P. J. . Frcm the record it appeared that the Reading Traction Company was incorporated under the act approved March 22, 1887, entitled “ An act to provide for the incorporation and regulation of motor power companies for operating passenger railways by electricity, cable or other means.” The Reading & Womelsdorf Electric Railway Company was incorporated under the provisions of the act of assembly, approved May 14, 1889, entitled “An act to provide for the incorporation and government of street railway companies in this commonwealth.” In July, 1895, an application was made to the attorney general by J. H. Cheetham and Henry Landis, M. D., “ two reputable citizens, resident in the region traversed by the line of the railroad ” for process against the two companies above named upon the ground that they had issued stock contrary to the provisions of the act of May 7, 1887, entitled “ An act to enforce against railroad corporations the provisions of section seven of article sixteen of the constitution.” After full hearing the attorney general refused to proceed against said companies upon the ground: First, that traction companies'and street passenger railway companies were not within the purview of the act of 1887; and, second, if they were, that no such complaint had been made before the attorney general as would warrant him in commencing proceedings “ at law or in equity ” as provided by section four of said act of 1887. A rehearing was granted on the application of counsel for Messrs. Cheetham and Landis, and their application was again refused. The complainants then filed their petition in the court of common pleas of Dauphin county, praying for a mandamus against the attorney general, commanding him to commence proceedings “at law or in equity,” as provided by the said act of 1887. The court below, in an opinion by Simonton, P. J., awarded a peremptory mandamus, holding that motor power companies and street passenger railway companies were within the provisions of the act of 1887; that the attorney general was absolutely without any discretion when complaint was made by “ two reputable citizens, resident in the region traversed by the line of the railroad,” and, further, that it was not necessary that the “ two reputable citizens ” should be interested either as stockholders or creditors, but that all that was necessary was that they should swear that they resided “ in the region traversed by the line of the railroad.” From these judgments appeals were taken by the attorney general. Error assigned was judgment awarding a peremptory writ of mandamus. Though the words “railroad” and “railway” are synonymous, yet where either one or the other is used in a provision, and it is evident from the context that a particular kind of road is intended, that kind of road only will be held to be the subject-matter of the enactment: Gyger v. R. R., 136 Pa. 96; Hestonville etc. R. R. v. Phila., 89 Pa. 210; Borough of Millvale v. Evergreen Ry., 131 Pa. 1. It is clear, under the act of 1836, relating to the duties of the attorney general, that he is clothed with discretionary power as to the institution of suits in the name of the commonwealth, and it is equally true that, unless the act of 1887 changes the well established rule, the discretionary power of that officer can not be supervised or controlled by the courts: High on Extraordinary Legal Remedies, sec. 45; Spelling on Extraordinary Relief, sec. 1, 304. The petitioners are not persons beneficially interested: Com. v. Allegheny Bridge Co., 20 Pa. 185; Murphy v. Farmers Bank, 20 Pa. 415; Com. v. Phila. Ger. & Nor. Ry., 20 Pa. 518; Com. v. Burrell, 7 Pa. 34; Com. App., 85 Pa. 433. The title of the act of May 7, 1887, is “ An act to enforce against railroad corporations the provisions of section seven of article sixteen of the constitution.” The words “ railroad ” and “ railway ” are synonymous, and when a statute relates to “ railroad companies ” or “ railway companies,” and there is nothing in the title or context which limits its operation to a particular kind of company, it will be held to embrace all kinds of railroad and railway companies, and there being nothing in the title or body of the act of May 7, 1887, indicative of a contrary intent, it must be taken to apply to passenger as well as to steam railway companies: Hestonville etc. R. R. v. Phila., 89 Pa. 219; Mace v. Cammel, Lofft, 782; Colehan v. Cooks, Willes, 395; Holbrook v. Holbrook, 1 Pickering, 250. The Reading Traction Company here in question must be regarded as a railroad corporation: Act of March 22, 1887, P. L. 8; Rafferty v. Central Traction Co., 147 Pa. 587. The purpose of section 4 of the act of May 7, 1887, was to insure proceedings against railway corporations whenever two reputable citizens, as described therein, should file with the attorney general a written complaint under oath, and the language “ upon complaint.... of any two reputable citizens .... it shall be the duty of the attorney general at once to institute proper proceedings,” leaves that officer no discretion, but is a legislative assignment of duty which he is not at liberty to.disregard : Com. v. Burrell, 7 Pa. 34; Com. v. McHale, 97 Pa. 406. ' The interest requisite to entitle the appellees to a writ of mandamus under the provisions of the act entitled “An act relating to mandamus,” approved June 8,1893, P. L. 345, is a beneficial interest in the results sought to be obtained, and the appellees in this case have such beneficial interest: Heffner v. Com., 28 Pa. 112; Union Pacific R. R. v. Hall, 1 Otto, (U. S.), 343; Mechem’s Public Offices & Officers, sec. 948. The complaints filed by the appellees with the attorney general against the companies in question were precisely in accordance with the provisions of the act of 1887: Blatch v. Archer, Cowper, 63; Fowler v. Sargeant, 1 Grant’s Cases, 355; Frick v. Barbour, 64 Pa. 120.
178 Pa. 194Greenfield v. East Harrisburg Passenger Railway Co. (1896)Affirmed
Negligence — Street railways — Grossing—Collision with wagon. In an action against a street railway company operating an electric railway, to recover damages for the killing of plaintiff’s husband while he was driving a two horse wagon over the railway at a public crossing, the case is for the jury where the evidence for the plaintiff though contradicted is in effect that the car which collided with the wagon was run at a high rate of speed, that no signal was given, that the deceased looked and listened before going upon the track, and that obstructions of the view at the crossing made it a dangerous one.
178 Pa. 198Commonwealth ex rel. McCormick v. Morgan (1896)Affirmed
Appeal, No. 25, May T., 1896, by defendant, from judgment of C. P. Daupbin Co., Commonwealth Docket 1896, No. 326, for plaintiff in qno warranto. Quo warranto to determine the title of the defendant to the office of justice of the peace in Mahanoy City. The facts appear by the opinion of the court McPherson, J., which is as follows: The undisputed facts in this case appear from the pleadings and an agreement filed by the parties.
178 Pa. 211Commonwealth ex rel. McCormick v. Williams (1896)Affirmed
Appeal, No. 24, May T., 1896, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket 1896, No. 334, for plaintiff on quo warranto. Quo warranto to determine title to public office. McPherson, J. filed the following opinion: The undisputed facts in this case appear from the pleadings and an agreement filed by the parties.
178 Pa. 213Commonwealth ex rel. McCormick v. Rynkiewicz (1896)Affirmed
Appeal, No. 23, May T., 1896, by defendant, from judgment of C. P. Dauphin Co., Common-' wealth Docket 1896, No. 328, for plaintiff on quo warranto.
178 Pa. 214Commonwealth ex rel. McCormick v. Shoemaker (1896)Affirmed
Appeal, No. 22, May. T., 1896, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket 1896, No. 330, for plaintiff on quo warranto.
178 Pa. 215Daugherty Typewriter Co. v. Kittanning Iron & Steel Manufacturing Co. (1896)Affirmed
Appeal, No. 100, Oct. T., 1896, by-plaintiff, from decree of G. P. Armstrong Co., refusing preliminary injunction. Bill in equity for an injunction.
178 Pa. 215Commonwealth ex rel. McCormick v. Toomey (1896)Affirmed
Appeal, No. 21, May T., 1896, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket 1896, No. 331, for plaintiff on quo warranto.
178 Pa. 223Hill v. Pennsylvania Railroad (1896)Affirmed
Negligence — Death—Release of damages — Widow—Acts of April 15,1851, and April 26, 1855. Under the acts of April 15, 1851, P. L. 674, and April 26, 1855, P. L. 309’, a widow has no independent right of action for the death of her husband caused by the negligence or default of another which the husband could not release in his lifetime, after the injury and before his death.
178 Pa. 232Kennedy's Disbarment (1896)Affirmed
Appeal, No. 507, Jan. T.,. 1896, by George C. Kennedy, from order of C. P. Lancaster ■ Co., Trust Book No. 15, page 244, making absolute a rule to disbar him. Rule to disbar an attorney at law.
178 Pa. 239Hess v. Berwind-White Coal Mining Co. (1896)Affirmed
Appeal, No. 44, Oct. T., 1896, by defendant, from judgment of O. P. Jefferson Co., September T., 1893, No. 461, on verdict for plaintiff. Trespass for death of plaintiff’s husband. Before .McClure, P. J., of the 17th judicial district, specially presiding. At the trial it appeared that on April. 21, 1893, T. M. Hess, plaintiff’s husband, was killed at a point on the Pennsylvania & North "Western Railroad, where the defendant company’s switch joined the railroad. W. I. McGregor, an employee of defendant, was engaged on the day of the accident in dropping loaded cars from the defendant’s tipple down to the switch or siding. A number of cars had been run upon the switch and allowed to stand for four or five hours. Against these cars McGregor then ran two loaded cars down from the tipple with such violence as to bump all the standing cars forward and hurl the first one so far that it projected over the main fine of the railroad; The car was allowed to stand upon the track for about ten minutes when it was struck hy the rear car of a freight train which was being pushed backward on the railroad. The evidence tended to show that the train men after they saw. the car projected on the track did everything they could to stop the train. The deceased was a brakeman on the train and, in the collision, was thrown off and killed. Other facts appear by the charge of the court which was in part as follows: It is contended, and there is no dispute as to this branch of the case, that the sidings about the coal company’s works at No. 5 tipple were owned by the railway company; that it was accustomed to back the light cars up a light car siding beyond the tipple, they were then placed on a siding with a grade, known as a loading siding, and brought to the tipple by the employees of the defendant company, loaded, and then run by gravity on down towards the main track of the railway, and that on this road was a throw-off or safety switch. This switch seems to have been the o,ne that is in ordinary use by railway companies at like places, and has been for twenty years, and that it was upon the day of the accident, so that ordinarily the cars, if they got beyond the control of the man in charge in dropping them down from the colliery, would run out on the ties and over towards the hill and away from the main track, so that they would not get on that main track. This is the object of the switch’ It seems that on tins day Mr. McGregor was dropping these ears for the company; he had dropped the two first cars (which was their custom, two at a time) to within some fifteen feet of the throw-off switch; he then dropped two more, and two more, until, at some one time, either one or three, so that he had the number of seven on this siding. He then dropped two more down, and they went with such speed that it seems he was unable to control them, and they struck those seven cars, driving one, the last car, entirely off the siding through this throw-off switch to the front truck of the second car. The first car was so driven that it protruded over on the line of the railroad. It is contended on the part of the plaintiff that Mr. McGregor was negligent in the handling of these cars. Now, it seems to us that if there was any negligence there at all it must have been in the starting of the cars hard enough to get too great a rate of speed before he crossed over the trestle at Polecat run, so that when he got beyond that he was unable to control .them. If there was not negligence in that, there was no negligence in the handling of these cars, for the testimony is, and it is uncontradicted, that the brakes were in good condition, and he threw them on with all his might and staid with the cars and stuck to them until the collision occurred with the other cars standing on the siding. So that if you find there is any negligence in this, the only part that we could see that would warrant it is that he must have allowed the cars to get under too great headway crossing this bridge, for beyond that he seems to have done everything in his power, and everything that had ordinarily been done by all the men that had run the cars there before. In the second place it is contended that after the car had been thrown out on the main line notice was not given the railway company; that the defendants were negligent in not notifying the railway company of the obstruction on its tracks. There was an arrangement or understanding between these companies, or probably orders from the railway company, as we understand the testimony, that when there was an obstruction on the track the orders were to go to the weigh-of6.ee and telephone that fact to the despatcher’s office, in order that the railway company could promptly for itself remove, and notify the men running the trains of the obstruction. The testimony of Mr. McGregor on this point is that it was some ten minutes after the collision that he notified the railway company of the obstruction on the track. Was this notice given in time? Was it promptly given? And in addition was that all the notice that the railway company should have had of this obstruction ? If it was, then the defendant company is not guilty of negligence on that branch of the case. In order for the plaintiff to recover here she must not only show that the defendant company has been guilty of negligence, but it must also appear to you that the men in charge of this train were not guilty of negligence, for if they were guilty of negligence, and the two concurred or contributed — the negligence of the defendant company, assuming that there was negligence, and that of the hands running the train, if those two concurred or contributed to the injury, the plaintiff is not entitled to recover. It appears that this train was being backed along there at the rate of eight miles an hour; the engineer was at the rear of his train, and he was the first one, although at the rear of the train, to notice the obstruction on the track; the conductor and Mr. Hess, a flagman, and other brakemen were along this train, and the conductor, we believe, was on the first car, and the flagman also, and it seems, although they were there, that no notice was given by them- to the engineer of the obstruction, until after he had noticed it himself and thrown on Ms brakes and reversed bis engine. Now, it would seem to us, although this is a question for you to determine, that a train crew backing the train along the railroad track, with the engine, of course at the rear of it, should use rather extraordinary diligence in determining whether or not there are obstructions on the track, and in the running of the train, because the power which is usually applied, which is applied to drive the train, and the greatest power in the stopping of it, is at a point where the engineer cannot see, so that the signals have to be conveyed from one end of the train to the other before the greater power in stopping the train can be applied. Now we think you will have no difficulty in finding and saying that in the backing of a train there should be greater care used on the part of the operators or train men than if the train is running with the engine ahead. Was there due care on the part of those train men? Could they by this due care have discovered the obstruction on the track in sufficient time to have stopped the train ? The evidence on the part of the engineer is that if they had, if the brakes had been applied in conjunction with his efforts, by the brakes on the tender and engine, and the reversing of the engine, the train could have been stopped in its length, or two hundred feet, and that he discovered the obstruction some eight hundred feet before they came to it, but was unable to stop the train because he received no assistance from the train men. Now if they could have stopped the train with due care, could have seen the obstruction and stopped the train, and by not doing so they ran into it, they would be guilty of contributory negligence and the plaintiff could not recover. It further is necessary for you to find, and of course a most important part of this case, or one of the important parts, at least, that the defendant met his death by reason of the obstruction on the track. He was seen shortly before the collision on top of the car, he then went back, and we believe the rear brakeman testified that he saw him down between the cars, as he passed over them just before the collision, or, rather, he stated he did not see Mm then, but that the last time he saw Mr. Hess he was down between the cars; he did not have time to look the last time he passed over them; the engineer some time before that saw him go down between the two cars, that is the first and second car, and one of the other men saw him go down between them, we believe that was Mr. Aul; but all the testimony is for you to determine, and if we have made a mistake we have no doubt you will readily correct it. So that tMs man, Mr. Hess, was seen at that time and then not; again until he was on the track, maimed and injured to such an extent that in a few minutes he died. Defendant’s point and answer thereto among others were as follows: 10. That under the evidence in this case, the verdict of the jury should be for the defendant. Answer: TMs point is refused. [4] Verdict and judgment for plaintiff for |3,500. Defendant appealed. Error assigned among others was (4) above instruction, quoting it. In the moving and starting of cars on its road with appliances furnished by it, as in this. case, McGregor was the servant of the Railroad Company: Union Pacific Ry. Co. v. Harris, 12 U. S. C. C. A. 598; Oil Creek & Allegheny R. R. v. Keighron, 74 Pa. 316. In an action to recover damages for alleged negligence, if the undisputed .evidence discloses no negligence on the part of the defendant, it is error for the court to submit it to the jury as an open question: Reading etc. R. R. v. Ritchie, 102 Pa. 425; Hestonville, Mantua & Fairmount Pass. Ry. v. Kelley, 102 Pa. 115; Bunting v. Hogsett, 139 Pa. 363; Pass. Ry. v. Trich, 117 Pa. 390. A proximate cause is one which, in actual sequence, undisturbed by any independent cause, produces the result complained of: Behling v. Pipe Lines, 160 Pa. 359; McGrew v. Stone, 53 Pa. 436; Texas & P. R. R. v. Doherty, 15 Southwestern Rep. 44. As the facts in this branch of the case were undisputed, it was the duty of the court to determine the question involved: Twp. of West Mahanoy v. Watson, 112 Pa. 574; Scott & Co. v. A. V. Ry. Co., 172 Pa. 646; Hoag v. L. S. & M. S. R. R., 85 Pa. 293; P. R. R. v. Kerr, 62 Pa. 353. The train’s hands were in the same common service with Hess for the same general purpose: Frazier v. Penna. R. R., 38 Pa. 104; Ryan v. C. V. R. R., 23 Pa. 384; Hoffman v. Clough, 124 Pa. 505. The case was properly submitted to the jury: Yoders v. Amwell Twp., 172 Pa. 447; Spisak v. R. R., 152 Pa. 281; R. R. v. Werner, 89 Pa. 64; Philpott v. Penna. R. R., 175 Pa. 570; Davidson v. Ry., 171 Pa. 522; Gray v. Penna. R. R., 172 Pa. 383; Howett v. Phila. etc., R. R., 166 Pa. 607; Hestonville etc. R. R. v. Kelley, 102 Pa. 115; Bunting v. Hogsett, 139 Pa. 363; Oil City Gas Co. v. Robinson, 99 Pa. 1; Quigley v. Del. & Hudson Canal Co., 142 Pa. 388; Lloyd, v. Phila. & Reading R. R., 162 Pa. 29; Vallo v. U. S. Express Co., 147 Pa. 404.
178 Pa. 245Smith v. Wildman (1896)Reversed
Appeal, No. 53, Oct. Term, 1896, by plaintiffs, from judgment of C. P. Greene County, April Term, 1892, No. 128, on verdict for defendant. Ejectment for a tract of land in Springhill township. At the trial it appeared that plaintiffs claimed title as heirs of James Smith, deceased. The defendant claimed title under a decree of the orphans’ court authorizing the sale of the land for the payments of the debts of James Smith, deceased.
178 Pa. 258Fenn v. Dickey (1896)Affirmed
Appeal, No. 67, Oct. T., 1896, by defendants, from judgment of C. P. Jefferson County, Sept. Term, 1892, No. 251, on verdict for plaintiff. Assumpsit upon a contract to recover commissions for the sale of land. Before McClttbe, P. J., of the 17th judicial district, specially presiding. The facts appear by the charge of' the court below, and the opinion of the Supreme Court. At the trial Mr. A. B. McLain was called on behalf of the plaintiff and duly sworn. Direct examination by Mr. McCarrell. “Q. State whether or not you met those three persons, Messrs. Dickey, Darrah and Fenn, together, at any time in 1886 ? A. I did. Q. About what time in 1886, was that,’Squire ? A. To the best of my recollection it was along about the 18th or 19th of June. Q. Did you have a conversation with either Mr. Dickey or Mr. Darrah at a later time in regard to their arrangement with Mr. Fenn? A. I did with Mr. Darrah. Q. When was that? A. That was but a very short time after — (Interrupted.) Q. By Mr. J enks: Mr. McLain, when was this alleged conversation with E. H. Darrah, to which you are about to testify ? A. It was a short time, I can’t tell you, probably ten days after this meeting at Mr. Darrah’s house on that morning. Q. By Mr. J enks: It was about ten days after that alleged meeting ? A. I think so; probably it might have been more and it might have been less, I did not pay very much attention to it. (Telegram having been shown witness.) Q. By Mr. McCarrell: ’Squire, will you look at that telegram and tell the court and jury in whose handwriting it is? A. Yes, sir; I sent that dispatch, that is my handwriting. Q. To whom did you send it, to what place, and at what date?- A. I sent it from Brookville to James V. Fenn at Lock Haven at the date that purports there, June 28, 1886. Q. What conversation did you have with Mr. Darrah about that time ? ” Defendants object to the declarations of Mr. Darrah made in the absence of the other defendants as not evidence, for the reasons, first, Mr. Darrah is not shown to be the agent of the other parties; second, he is not sued; third, he is dead; fourth, there is no claim of a contract in the pleadings to which he is made a party; and fifth, tins was at a time as to which there is no evidence that Mr. Darrah was authorized to speak for the others. By tbe Court: In addition to other evidence in the case it seems that on the Monday following, Mr. Darrah, Mr. McCain, and the plaintiff met at Pittsburg, and that Mr. McCain said to plaintiff, “ All right, go on and fetch your party and we will do as we contracted to do,” showing that he had a knowledge of the action of Darrah in making the proposed sale of the property; we think in this view of the case the evidence is admissible. The objections are overruled, exception taken by defendants, and bill sealed by the court. “ Q. What conversation did you have with Mr. Darrah about that time? A. Now, I am not able to say that this conversation was at the date of that telegram. Q. Well, about that time ? A. I said it was a short time after I had met Mr. Dickey, Mr. Darrah and Mr. Fenn at his house, probably something like ten days, I am not clear about that. When I met Mr. Darrah, I rather twitted him, as he and I were very good friends, about this sale; I said, ‘ This man Fenn is going to make about $50,000 off of you,’ and he said, ‘Well, that is all right; we are getting a good price for the land.’ I said, ‘ Mr. Dickey, suppose that Mr. Fenn is not able to sell this land’ — Q. By Mr. Jenks: Did you say Mr. Dickey? A. Mr. Darrah, I should say. ‘ Mr. Darrah, suppose Mr. Fenn is not able to sell this land for more than the $400,000, where is he going to come in then? ’ ‘ Oh,’ he says, ‘ we will'give him a five per cent commission ; we can well afford to do that and then make a nice little sum of money.’ ” [10] The court charged in part as follows : It is contended on the part of the plaintiff that Collins was the owner of timber land and had conveyed about the 1st of June, 1886, an undivided interest in this land to the other defendants, Dickey, McCain and Darrah; that he came to this town of Brookville on June 18, 1886, and met Mr. Dickey at bis house on the evening of that day, and I believe he also claims he had met Mr. Darrah on that day, and they arranged for a meeting on the morning of the 19th, and that they met at that time at the house of Mr. Darrah. The contract as he tells it is somewhat in these words: That he told them he had come to Brookville to arrange to sell the Forest county lands they had recently bought for $800,000; that he thought he had a purchaser for it at an advance to them and sufficient for a consideration to him in addition for his services ; that Mr. Darrah and Mr. Dickey each said they would sell at an advance, Darrah at an advance of from $25,000 to $50,000, and Dickey at an advance making a total of $400,000; he said that would make it a little hard, and Dickey said they would want to sell the whole tract at $400,000 and that I (the plaintiff) was to have all over that amount; that he then remarked to them suppose he could not get over $400,000, and Dicky stated they would give him 5 per cent; they then instructed him how to get to the lands and told him as to the timber on them, seventy-five to ninety million feet of white ‘pine, forty million of hemlock, and eight to ten million feet of oak, ancl some one of them procured a map from Mr. Kreitler; and further instructed him as to how to get to the lands. He said they further agreed to name the price and sell to any person that he might bring as a purchaser so that it should not be less than $400,000, and that they agreed that the title to the property would be a perfect title; that he was to have plenty of time to examine the timber; and that they represented to him they were the representatives of, or at least had power to contract for, the others, or rather they represented all the parties ; that when they were about leaving the house they met A. B. McLain and one of them stated, “We have given Mr. Fenn the Forest county lands to sell and all over $400,000 he is to get, and if that sum, five per cent.” The testimony of Mr. McLain, who was called as a witness on the part of the plaintiff in this suit, is, that he met these parties coming from and in front of Darrah’s house about June 18 or 19, in the morning; “I met them just coming out of the front door, at Darrah’s gate. Either Dickey or Darrah said, We have given Mr. Fenn the land to sell at a price of $400,000 and he is to have all he can make over and above that sum.” Mr. McLain further testified that some ten or twelve days afterward he met Mr. Darrah and twitted him about this contract, this sale, and he said to him, “What will Fenn get if he only sells for $400,000 ? ” and he says “We will give Fenn a five per cent commission if the sale is not over $400,000, and we can well afford to do that.” It seems, the plaintiff contends, then, that he saw Mr. Pardee, and that Pardee’s men went on the lands and examined this timber, and that on the 1st of July he came to Brookville again, I believe, and informed Darrah and Dickey they were ready to look at the timber, and on the 6th of July they met on the lands, and he introduced Mr. Pardee to Mr. Darrah and Mr. Dickey, and on July 7 they went over the lands; that Darrah and Dickey complained to him that Pardee seemed to be dissatisfied with the price namely, of $450,000, and they urged him to help them, to see Pardee and to keep him up to that price. The connection Mr. Kreitler had with this, so far as the testimony of the plaintiff is concerned, was, that he saw him there on the 2d of September, and that M'r. Darrah introduced Mr. Kreitler to him, and Kreitler said that he was glad to meet him, and Darrah said, “We are all here to make the transfer, and I presume you want your money; ” and Kreitler said, “We will be ready for you shortly, in Mr. Tate’s office.” And he connects Mr. Collins with it, that he was introduced to Mr. Collins by Mr. Darrah (I believe this was there), and Darrah said there was some hitch (that was on the 2d of September) with Pardee, and Collins said, “ You are interested as well as we are, and we want you to help us with Pardee ! ” It seemed that a contract was entered into on the 13th of August. These parties went to Tionesta and entered into a contract for the purchase of the land for $400,000. This contract, I believe, had something like twenty days in winch it should be closed. And on the second of September the parties again met there, Pardee and others, and the defendants, with their wives, ready to close the deal. At that time, Mr. Kress, who represented Pardee, found a defect in the title and instructed his client not to accept the property. And the plaintiff further contends that by reason of tins defect in the title the deal fell through, the contract was canceled, and the money that had been paid at the execution of the contract, which was $10,000, was surrendered, and also $1,400 in addition were paid Pardee (Mr. Collins, I believe stated ho furnished the money paid Mr. Pardee) for his expenses in examining the title and looking over the property. Mr. Pardee said that he went there to look at the timber lands, and went, through Fenn, and with him; that is, through the instrumentality of Mr. Fenn, and with him, in July, 1886 ; that he first heard of these timber lands through Fenn, and came there a number of times in 1886 ; that he employed Mr. Haines, who was his timber expert, to examine the timber and determine the kind, quantity and quality of it, and subsequently they met Darrah and Dickey on the land. He said that at the time of the meeting in September, 1886, he was ready with the money, had $90,000 in New York and Philadelphia paper, drafts, to meet these obligations, which were, I believe, $90,000 to be paid then; and he was ready and willing to complete the contract, and it was only on account of the failure of the parties to present what his counsel considered a good, valid, marketable title to the property, that he refused to accept. The defect that was found in the title by Mr. Kress was, that some undivided five fifty-sixths interests, or one third of that, were outstanding in the heirs of one Joseph Green, from whom Mr. Collins had derived title, and he deemed this of sufficient importance, and a defect of such a character, that it could not be remedied except by conveyance from those heirs, and so he instructed his client not to accept the property. This, in substance, is the case on the part of the plaintiff. The defendants have been called to the stand, and their defense is practially a denial of this whole contract as alleged by Fenn and as set up by him. Mr. Dickey said the first that he met him was oh the morning of the 19th of June. That he was not at his house at all on the evening of the 18th of June, and he did not know there was such a man as Fenn before the 19th. That on the morning of that day Mr. Darrah called .him into his office and there he met Mr. Fenn and was introduced to him. “ Fenn said he represented a firm in the east who wanted to buy a large tract of pine land, and he wanted to know if we wanted to sell, and I stated we did not care to sell. He said he had talked to Darrah and he agreed to sell.” fie intimated to him that they had bought this property for the purpose of operating it and not for the purpose of selling it, and “ I said I did not care to sell it. If all the rest are willing to sell at the sum of $400,000,1 would not stand in the way of the sale.” That there was nothing stated there about guaranteeing the title, and nothing was stated about their representing the other parties in interest. That he further told Fenn he did not think that Collins would agree to sell, and that he had not seen Me-Cain in the matter; that he never saw Fenn again until they met at Pittsburg. It then seems that he and Mr. McCain met there and Fenn was introduced to Mr. McCain, and they talked about selling this land, and Fenn wanted to know if they would give him an option for twenty to thirty days on the land and Mr. Dickey said to him, “Not a day!” to bring on a man, to bring on his purchasers and buy the property; that Mr. Darrah was not there at that time and did not introduce Mr. Fenn as he had testified, but Mr. Dickey himself introduced him to Mr. McCain. He denies that he was on the timber, said he was not there examining it with Fenn, did not meet him on the first of July. Pie further testified that he not only told Fenn he had no power to represent these parties, but that they did not represent any of them but themselves, that is Darrah and Dickey, and that he had no power to act for the others, and he made no representations to Fenn of such power; further, he said that Mr. Fenn, so far as he knew, had nothing to do with the contract. Mr. McCain was called and testified to meeting Mr. Fenn at the Hotel Boyer at Pittsburg, Mr. Dickey having introduced him, in the summer of 1886, between the 1st of June and the 13th of August, he could not name the date; he had business transactions in Pittsburg at that time frequently and he could not name the date they met there. He said he did not see Darrah and Darrah had not introduced him. His testimony further is, “ Dickey introduced me and said Fenn was the man who wanted to buy and that he would give 1400,000 for the property. Fenn asked me if I would sell at 1400,000; I said I was not particular about selling but if the rest wanted to I would not stand in the way of the sale,” and there was nothing said about Fenn representing him. Pie further testified as to the option, that Mr. Fenn wanted to know whether he would give .him an option on it, and Dickey replied to him that he would not give him an option for a day. [Mr. Kreitler was also called as a witness. His interest in this property according to the agreement which you will have out with you began on the 22d day of July, 1886, and therefore of course he could not have authorized — unless you would find that he was interested before the agreement, he could not have authorized Mr. Darrah or Mr. Dickey to make sale of his property which he did not then own, and the subsequent ratification of this act is the only means you have of bringing him or holding him to this contract.] [4] We will come to that branch of the case in a few minutes. Mr. Kreitler said he thought he saw Fenn at Tionesta on the 2d, when they all met there to consummate the deal, but he had no recollection of seeing him between the time he got the map from him (you will recollect his testimony about the map) and that time; that he never heard of any contract to pay for the sale before summons was served, and that he never authorized any one to make the sale for him. Mr. Collins also testified he never authorized any one to make the sale, never knew about Fenn until suit was commenced, and never had any knowledge of any one making the sale of the lands until he signed the contract; “never saw Fenn that I know of until now; never asked Fenn to help on the sale, as he was interested as well as I,” at the time testified to by Fenn, on the 2d of September, 1886. Now, gentlemen, as we recollect it, this in main is the testimony of the parties, and we have only gone over it because this case has been drawn out over two or three days, and the effect of much of the testimony must have been lost on your minds, and we have just called your attention to what we think are the main features of it. [The question that you will have to determine is, whether there was such a contract as alleged by Mr. Fenn and sworn to by him for the sale of this pi'operty; and if he had a contract for the sale of it with these defendants, representing the others, whether or not he procured a purchaser who was able, ready and willing to accept the price named by them ? If there was such a contract, and he furnished a purchaser, able, ready and willing, and this contract fell through and the deal fell through on account of a defect in the title, he is entitled to his commission.] [7] Of course if there was no such contract, if Fenn had nothing to do with it, if as testified to by these witnesses he did not make the contract, and was, as they supposed, representing the purchaser instead of the sellers of this property, and their version of this is true, then he is not entitled to his commission. [Now, it is necessary for the plaintiff to establish his authority, his employment. He was practically a broker in this case and Ms commission is -what is known as brokerage; and he must establish that, as I said, either by previous authority, that is, by Darrah and Dickey telling him to go on with the sale, or by the acceptance of his agency and the adoption of Ms acts by those who did not previously authorize him. Each one of these defendants must have previously authorized or subsequently accepted Ms agency and adopted his acts in order to bind them. Now, did these people authorize him to proceed? And if they did not authorize him to proceed themselves, did they accept Ms agency and adopt Ms acts, as according to the evidence in the case it was the plaintiff’s duty to prove as to Mr. Kreitler?] [5] We will say that it is necessary, in order to recover a verdict against these parties (and a point has been submitted to that effect) — it is necessary for you to find a verdict against all of them or none. And if any one of these parties did not authorize the act, or did not accept his agency and adopt his act, then your verdict should be in favor of the defendants, because the plaintiff must get a verdict against all or none. [We will repeat, so you will be sure to understand, that it was the plaintiff’s duty to procure a purchaser who was able, ready, and willing to purchase the lands at a price agreeable to the owners, and if in pursuance of the contract with Darrah and Dickey (if you find there was a contract) he procured A. Pardee & Son as purchasers, and they were able, that is, they had the financial ability, to complete this contract, to pay the $10,000 down on the day of the sale and $90,000 at the time of the execution of the deed, and to give the other additional security — if they were able to do that and were ready, came there prepared for that purpose, with the money in their pockets as testified to by Mr. Pardee, and willing to purchase, that is they were willing to go on bona fide, in good faith, to complete this contract, and did not raise the objections to the title as a mere subterfuge to get away from it, and were willing to purchase at $400,000, and the deal fell through on account of a defect in the title, the plaintiff had earned his commission; and if each of the defendants had either authorized the plaintiff to procure a purchaser, or had accepted Ms agency and adopted Ms acts, the verdict should be in the plaintiff’s favor.] [6] On the other hand, as said before, if they did not adopt Ms acts, or did not authorize him to proceed, then the verdict should be in favor of the defendants. Plaintiff’s points and answers among others were as follows: 1. That if the jury believe from the evidence that the plaintiff, James Y. Fenn, was employed by the defendants to procure a purchaser for the timber upon the lands in Forest county owned by them, for the price of not less than $400,000, and that the plaintiff in pursuance of said employment procured the defendants a purchaser for the said timber at the price designated in the persons of A. Pardee & Son, to whom the defendants made a proposition of sale, and that the said Pardee & Son, in good faith, accepted said proposition and entered into an agreement of purchase, dated August 13,1886, and that the said A. Pardee & Son were able to comply with their part of said agreement, then the sale was made so far as the plaintiff in this case was concerned, and the plaintiff is entitled to recover the full sum of the commission agreed upon between him and the defendants. Answer: We affirm this point with this qualification : That you should find not only that Pardee & Son were able to comply with their part of the agreement, but.that they, were able, ready, and willing, as we instructed you in the general charge, to comply with it. [8] 2. That if the jury believe from the evidence that the defendants made a proposition for the sale of their timber in Forest county at the price designated in their arrangement with the plaintiff, if such arrangement was made, which the said Pardee & Son accepted in good faith and were able to carry out, but that the sale to them failed to be consummated by reason of the defendants’ defective title to their timber, then the plaintiff is entitled to recover his full commission as per his agreement, if made, to wit: five per cent on the sum of $400,000 with interest thereon from the time when the said proposition was accepted by Pardee & Son as evidenced by their agreement of August 13, 1886. Answer: This point is also affirmed with the qualification that you should find that A. Pardee & Son were not only able to carry out their part of the agreement, but were also ready and willing to carry it out. [9] Defendants’ points and answers are among others as follows : 4. That as under the express terms of the alleged contract, as testified to by the plaintiff, he was only entitled to recover commission on $400,000 in the event he could not sell for more than that amount, and as the evidence shows he could have sold for more than that amount but did not do so, nor give any notice to Collins, McCain or Kreitler, or bring home to them knowledge of such fact, or show that they stood in the way of its accomphshment, he cannot recover the commission. Answer: We refuse to so instruct you. [3] 7. That there is no sufficient evidence that T. D. Collins, W. G. McCain and F. X. Kreitler, or either of them, with knowledge of the same and the terms thereof, ratified the alleged contract of June 19,1886, at any time subsequent thereto. Ansioer: We refuse to so instruct you. [2] 9. That under the pleadings and evidence in this case the verdict of the jury should be for the defendants. Ansioer: We refuse to so instruct you. [1] Verdict and judgment for plaintiff for $31,169.99. Defendants appealed. Errors assigned among others were (1-9) above instructions, quoting them; (10) ruling on evidence, quoting the. bill of exceptions; (14) refusal to strike off amended statement. It is error to submit to the jury the question of whether the party subsequently ratified the act of a person acting without authority, where there is no evidence that the facts were ever communicated to the party, or that he assented to the acts alleged to be done for him: Moore’s Executors v. Patterson, 28 Pa. 505; Union Refining etc. Co. v. Bushnell, 88 Pa. 89; People’s Bank v. Gayley, 92 Pa. 518; American Underwriter’s Association v. George, 97 Pa. 238; Hays & Wick v. Lynn, 7 W. 525; 1 Wharton on Agency, sec. 65. The rule is well settled that a full knowledge of all the material facts and circumstances attending the transaction is necessary to give validity to the ratification; and the party must know that he would not be bound without such ratification: Pittsburgh & Steubenville Railroad Co. v. Gazzam, 32 Pa. 340; Porter v. Patterson, 15 Pa. 229; Twelfth Street Market Co. v. Jackson, 102 Pa. 269; B. & O. Relief Ass’n v. Post, 122 Pa. 579; Essick v. Buckwalter, 1 Pa. S. C. Cases (Monaghan) 209; Zoebisch v. Rauch, 133 Pa. 532; Frank, Liveright & Co. v. Martin, 26 W. N. C. 361; Owings v. Hull, 9 Peters, 607; Bennecke v. Connecticut Mutual Life Ins. Co., 105 U. S. 355; Bloomfield v. Charter Oak National Bank, 121 U. S. 121; Western National Bank v. Armstrong, 152 U. S. 346; Seymour v. Wyckoff, 10 N. Y. 213; Smith v. Tracy, 36 N. Y. 79; Baldwin v. Burrows, 47 N. Y. 199; Smith v. Kidd, 68 N. Y. 130; First National Bank of Fort Scott v. Drake, 29 Kansas, 311; s. c., 44 Am. Rep. 646. The contract declared on is a joint one and the judgment rendered is joint: 1 Chitty’s Pleadings, 51; Schoneman v. Fegley, 7 Pa. 433; Rowan v. Rowan, 19 Pa. 181; Loew v. Stocker, 61 Pa. 347. The declarations of an agent made after the transaction is .fully completed and ended, are not admissible: Huntingdon etc. R. R. v. Decker, 82 Pa. 123; Giberson v. Patterson Mills Co., 174 Pa. 369. The question of ratification was for the jury: Bond v. Aitkin, 6 W. & S. 165; Mechem on Agency, sec. 146; Fichthorn v. Boyer, 5 W. 159; Kramer v. Dinsmore, 152 Pa. 264; Miller v. Glassworks, 172 Pa. 70; Ahern v. Goodspeed, 72 N. Y. 115; Codwise v. Hacker, 1 Caines R. 539; Berwick v. Dusenberry, 32 How. Pr. R. 348; Commercial Bank v. Warren, 15 N. Y. 579; Meehan v. Forester, 52 N. Y. 277; Bank of U. S. v. Davis, 4 Hill, 464. The law is well settled in regard to plaintiff’s right to recover : Keys v. Johnson, 68 Pa. 42; Reed’s Ex. v. Reed, 82 Pa. 420; Mayer & Co. v. Rhoads, 135 Pa. 602; Sweeney v. Oil & Gas Co., 130 Pa. 193; Middleton v. Thompson, 163 Pa. 119; Restein v. McCadden & Bro., 166 Pa. 343.
178 Pa. 273Lett v. Kunkle (1896)Affirmed
Appeal, No. 91, Oct. T., 1896, by defendants, from judgment of C. P. Westmoreland Co , November Term, 1893, No. 559, on verdict for plaintiff. Assumpsit upon a promissory note. Before Rayburn, P. J., of the 33d judicial district, especially presiding. The note in suit was as follows: [seal] “ ¿6405 “I promise to pay to John Lett on demand the sum of four hundred and five pounds sterling, for value received at five per cent. “Kunkle & Wilson. “ Sept. 5,1890.
178 Pa. 276Manross v. City of Oil City (1896)Affirmed
Negligence — Municipalities—Accumulation of ice on sidewalk. In an action against a city to recover damages for personal injuries caused by falling on an accumulation of ice on a sidewalk, even if it was not shown that the ice had formed into hills or ridges, a verdict and judgment for plaintiff wall not be disturbed where there was sufficient evidence to support a finding that ice had accumulated on the sidewalk at the mouth of an alley; that the accumulation would not have taken place if the gutter had been properly cleaned and opened, and that the plaintiff had not passed over the sidewalk for three weeks, and knew nothing of its condition.
178 Pa. 280In re Assigned Estate of White (1896)Affirmed
Assignment for creditors — Sale by assignee — Act of February 17, 1876. Under the act of February 17, 1876, P. L. 4, relating to saies by assignees for the benefit of creditors, the court to which the application for an order of sale is made has a discretionary power to grant or refuse the order, and when that discretion is exercised and an order is granted it will require very clear and satisfactory proof of either an abuse of discretion or a manifest disregard of the plain rights of execution creditors, under all the evidence, to induce an appellate court to reverse the action of the court below. An order of the court of common pleas granting to an assignee for creditors permission to sell the assigned estate will not be reversed by the Supreme Court, where it appears that there were fourteen different tracts of land and interests therein, some held by fee simple title and others by equitable title, and not all lying in the same county; that there were a considerable number of mortgages on the properties, some of which would be discharged by a sheriff’s sale and others not; that there were a number of judgments, some of which were liens on parts of the properties only, and others upon other parts; and that the discrepancy between the estimated value of the aggregated properties and the amount of the liens was not very great, and was an uncertain quantity which might result in an amount of sales larger than the estimate, and an amount of liens less than was apparent on the records.
178 Pa. 286Estate of Hartzell (1896)Affirmed
Decedent's estates —Legacies charged on land — Remedy to enforce payment-jurisdiction of orphans' court — Act of February 24, 1834, sec. 59. Section 59 of the act of February 24, 1834, P. L. 84, vests the jurisdiction to enforce payment of a legacy charged on land exclusively in the orphans’ court, and the form of the remedy is by bill or petition by the legatee, and not by the executor: Hart v. Homiller, 20 Pa. 248; 23 Pa. 39, overruled, in so far as it relates to the question of practice.
178 Pa. 290Felts v. Delaware, Lackawanna & Western Railroad (1896)
Motion for reargument. No. 53, Jan. T., 1895, 170 Pa. 432.
178 Pa. 291Aye v. Brown (1896)Affirmed
Appeal, No. 13, Oct. T., 1896, by defendants, from judgment of G. P. Armstrong Co., September Term, 1893, No. 156, on verdict for plaintiffs. Assumpsit for rentals under an oil and gas lease. Before Rayburn, P. J. Tbe material portions of tbe lease were as follows : . • “ We, Frederick Aye, Albert Aye, and R. S. Martin of Kittanning, Pa., the lessees named in the hereinafter described oil and gas leases, for the considerations hereinafter mentioned and stipulated for, have granted, assigned and set over, and by these presents do grant, assign and set over unto R. L. Brown of Kit-tanning, Pa., and J. R. Smith, Wm. H. H. Piper and G. W. Reese of Manor township, Armstrong county, Pa., the seven eighths part of all the right, title, interest and'claim of them, the said Frederick Aye, Albert Aye, and R. S. Martin, of, in and to the following oil and gas leases of the lands therein described, situate in Manor and Kittanning townships, Armstrong county, Pa., as follows, to wit: [Description of leases.] “The said Frederick Aye, Albert Aye and R. S. Martin, reserving nevertheless hereby unto themselves, their heirs, executors, administrators and assigns, the one eighth part of all.the petroleum or oil in the lands described in said leases, and the same is not herein granted and assigned. “In consideration of the premises and the future operating of said leases for the purposes therein expressed, the said R. L. Brown, J. R. Smith, Wm. H. H. Piper and G. W. Reese, for themselves, their heirs, executors, administrators and assigns, do hereby jointly and severally covenant to and with the said Frederick Aye, Albert Aye, and R. S. Martin, their heirs, executors, administrators, and assigns, that they, the said R. L. Brown, J. R. Smith, Wm. H. H. Piper and G. W. Reese, will drill the test well stipulated for in the said leases at their own cost and expense, and without any expense, charge, cost or assessment whatever to said Frederick Aye, Albert Aye, and R. S. Martin, who shall have an eighth interest therein when completed; and upon the completion of said test well, will pay to said Frederick Aye, Albert Aye, and R. S. Martin the sum of $1.00 per acre for each acre contained in said leases, providing said test well contains gas in sufficient quantity to pipe it to' market. ' “ It is understood that these presents do not constitute a co-partnership or company between the assignors and assignees herein named.” At the trial R. A. Rodgers, called by plaintiffs, testified: " Q. What is your business ? A. Drilling gas and oil wells. Q. How long have you been in the business ? A. I have been in the gas business five years this fall. Q. Where ? A. In Armstrong and Butler counties. Q. Drilled a number of wells? A. Yes, sir, we have drilled quite a number. Q. Been fortunate in getting gas? A. Some we got gas and some-Q. What experience have you had in marketing the gas? A. Never had any experience in marketing at all, we just drill the wells for other companies. Q. Do you know the pressure contained in those wells you drill? A. Some we do, and some I suppose we have forgotten. Q. Those wells you drilled, were they piped to market? A. Where they got gas that paid to pipe it they piped, and where they did not they did not pipe it. Q. What was the pressure in those wells in Armstrong county of persons for whom you were drilling and piping it to market? ” To be followed by evidence showing where the market was to which they were piped. Defendants’ counsel objected as incompetent and irrelevant; the witness has not shown himself sufficiently acquainted to give his opinion as an expert on the kind of pressure; it is not proposed to show that the wells of which the witness is about to speak were in the neighborhood of the well in dispute. The Court: We think if the witness can give evidence here as to the kind of pressure that was on these wells, we will permit him to answer. We will give you an exception and sealed bill. ■ “Q. How are wells tested in Armstrong county? A. It is taken by the minute. Q. What piece of machinery? A. They have got a gauge that they use for that purpose, common steam gauge, generally don’t go over two hundred pounds, but they have got a gauge that will run up one thousand pounds to take the pressure of a well. Q. What are these gauges ? A. They look like an ordinary steam gauge, only they will. gauge one thousand pounds, and some of them five hundred, and as low as one hundred and sixty. Q. What is the lowest pressure that these gauges will take? A. Well, about five pounds, you have got to have five pounds to make it show at all. Q. How are they applied to the well in order to ascertain the pressure? A. There is a small hole tapped in the side of the casing and a thread tapped in it, and then a short nipple in it and put the gauge in that. [1] “Q. Where have you drilled wells in Armstrong county? A. We drilled down here on this side of Freeport, and we drilled one out here in Armstrong about two miles and a half from here, it was a dry hole, though, and on this side of Free-port, several wells there. Q. Was the gas of many of these wells taken to market ? A. Some were and some not. Q. What was the lowest pressure that you can recall now that was taken to market? A. I saw a well there that rated seventy-five pounds was taken to Ford City Glass Works. Q. How far is that ? A. It is a good little piece off the works, but it was not a great ways off the main line. Q. What is the range of wells that are piped to market that you know of, of your own knowledge ? A. They run anywhere from one hundred pounds up to five hundred pounds. Q. Do you mean one hundred pounds and five hundred pounds to the minute? A. To the minute. Q. A gas well situated four miles from a gas market that would show a gauge such as you have described, pressure of two hundred and forty pounds, state whether or not in your opinion such a well would contain sufficient quantity of gas to pipe to market? ” Defendants’ counsel objected, because the witness has not shown sufficient knowledge of the marketing of gas to tell whether or not there was sufficient gas in this well to pipe to market; second, it is not shown that he has any acquaintance whatever with the well in dispute; third, it has not been shown that a proper gauge was used to gauge the well in dispute, and it has not been shown by any evidence nor has it been asked the witness what kind of pressure, whether rock pressure or minute pressure, is referred to. The Court: We will overrule the objection and give an exception and sealed bill, and admit the evidence for the present. “A. You mean two hundred and forty pounds in a minute; if she makes two hundred and forty pounds in a minute I would consider it sufficient to pipe. Q. Well according to the manner in which wells are measured? A. Wells are all gauged by minute pressure, what they make in a minute; rock pressure does not count because some wells will — if she made two hundred and forty pounds in a minute would consider it good enough to pipe four miles.” [2] The court charged in part as follows: Now, this action is brought by the plaintiffs to recover what they allege is due them by the agreement entered into between them and the defendants in reference to this leased property. The plaintiffs contend that they by the terms of this agreement are entitled to one dollar per acre for the leases that they transferred to these defendants by the assignment. They contend that the well drilled on the Colwell property by the defendants was such a well as was described in this assignment; that is, it was a well containing sufficient gas to pipe to market. R. S. Martin, one of the plaintiffs, testifies that after the well had been finished they had a meeting at Mr. Brown’s office, one of the defendants, where Mr. Brown, Mr. Smith, Mr. Reese and Mr. Dull of Harrisburg, were present. Mr. Aye, one of the plaintiffs, was also present. He says they had some conversation there in reference to the development of this territory; and it was proposed by Mr. Brown, one of the defendants, that they enter into a corporation, get a charter and develop this property; that plaintiffs would not accede to it, but offered to sell to them the remaining one eighth which they still held and reserved in the agreement entered into between them and the defendants. He also states that at that time there was nothing said by any of the defendants that the well thus driiled upon the property was not a good well; there was nothing said that it did not contain a sufficient amount of gas to pipe to market. I believe he also stated that there was something said by him or Mr. Aye in reference to the payment to them; they wanted the money which was due them under the agreement between them and the defendants. Now, as to the capacity of this well, the plaintiffs call Mr. Miller and Mr. Mecklish; they testify that they were present at the well on the Monday after it was struck; Mr. Brown was there, and that Mr. White, one of the men who had drilled the well, put a gauge upon this well, and that the gauge showed some two hundred and thirty-five or two hundred and forty pounds, I believe it was, that they testified to, and that Mr. Brown stated there that it was a pretty good well, or a fair well. [Mr. Rodgers is called in behalf of the plaintiffs and testifies before you as to his experience in gas wells, and he testifies as to the pressure of a well that would warrant the piping to market, but also states the conditions under which it could be. piped, speaking about where the market was, and whether there was not a pipe fine in the vicinity, it would not be so far •to pipe, etc;] [6] • Now, the defendants do not dispute that this agreement was entered into;-they say they entered into the agreement; they 'say they drilled the well; but they say the well was not of sufficient capacity to pipe to market. Mr. Brown comes upon the witness stand and testifies that he was out there the Monday following, and there was a test made, that it was made with a steam gauge, and I believe was made before the tubing was put in; it was when it was in the casing yet; he states that it was not sufficient to warrant the piping to market; he states that when any person asked him in reference to it he supposed he would state to them it was a fair well, or a pretty fair well; he said he would not have any idea of depreciating his property. Mr. Reese and Mr. Brown are called and testify as to their experience in the gas business. Mr. Reese testifies that the well was not of sufficient capacity to pipe to market. Mr. Piper also testifies to that fact. And the evidence of Mr. Pitcairn is read in your-hearing, who is also a practical gas man; he gives in his evidence what he considers a well that would pay to pipe to market. And in considering this evidence on the part of the plaintiffs and on the part of the defendants, it will be for you to take into consideration, in arriving at a conclusion whether this well was. of sufficient capacity to pipe to market, the situation of the well and the distance from the market. It is understood that a contract of this kind is to have a construction such as would bring about that which is reasonable on the part of either of these parties. In the article-of agreement it states that they are to pay the sum of $1.00 per acre- for each acre contained in the said leases, provided said test well contains sufficient gas to pipe to market. If you find from the evidence before you that this gas well contained sufficient gas, or gas in sufficient quantity, to pipe it to market, the defendants would have to pay to the plaintiffs $1.00 per acre for the number of acres contained in these leases, that is the number of acres which they got by the assignment. But if it did not contain gas in sufficient quantity to pipe to market, then these defendants are not liable. [That is about the whole thing in this case, and that you will ascertain from the evidence, whether or not it was situated as it was, the distance it was from the market, whether the well as drilled there put forth sufficient gas to warrant the piping of it to market by these defendants.] [7] Now you will recollect the testimony in this case as given by both the plaintiffs and the defendants, and it will be for you from that evidence to say whether or not there was sufficient gas in this well to warrant these defendants in piping it to market. That is about all the question you have to decide in this case. Defendants’ point and answer thereto were as follows: That there is no sufficient evidence to submit to the jury that the well contained sufficient gas to pipe to market. Answer : There is evidence on part of the plaintiffs that it was sufificient. The defendants contend it was not. Now you takó the evidence of the plaintiffs and the defendants and weigh the evidence, and from that evidence say whether or not there was a sufficient quantity of gas to pipe to market. This point as put we refuse. It is for you gentlemen to say; it is not for the court to say whether there was sufficient gas to pipe to market or not. [5] Verdict and judgment for plaintiffs for $1,285.65. Defendants appealed. Errors assigned among others were (1, 2) rulings on the evidence, quoting the bills of exceptions; (5-7) above instructions, quoting them.
178 Pa. 298Smith v. City of New Castle (1896)Reversed
Negligence — Municipalities—Defective street — Evidence. One who undertakes to use a public street, knowing that is is unsafe, and knowing the defects which make it so, but not choosing to avoid them, although he could do so by taking another road, cannot recover against the municipality .for ah injury resulting from such defects. With the person having the knowledge of the defects, the choice of the unsafe way is an act of negligence which contributes to the injury and thereby prevents a recovery. In an action against a city to recover damages for personal injuries caused by a defect in a street of which there was ample evidence, plaintiff testified that she had been living in the city only about four days before the accident; that she had passed along the street on the west side several times, but not on the east side where there was a hole, and that she had never seen the hole or had any knowledge or information concerning it; and that the accident occurred on a dark night. Held, that it was error to enter, and refuse to take off, a compulsory nonsuit. Del.. Lack. & West. R. R. v. Cadow, 120 Pa. 559, explained and distinguished.
178 Pa. 303Kuhn v. Ogilvie (1896)Affirmed
Appeal, No. 108, Oct. T., 1896, by defendant, from judgment of C. P. Cambria Co., March T., 1895, No. 578, for plaintiff, on trial by court without a jury. Scire facias sur mortgage. Before the court with a jury. The court found the facts to be as follows : On March 1, 1894, Thomas Ogilvie and Ada J. Ogilvie executed in proper form a mortgage to Henry H. Kuhn “ trustee for the creditors of ‘ Mintmier & Ogilvie ’ and ‘ Ogilvie & Watkins.’ ” The mortgage recited the failure of said firms in business and that their creditors had agreed to accept fifty per cent of their respective claims in full, and that they (Mintmier & Ogilvie) had agreed to give promissory notes for the same, payable in three, six, and nine months, the payment of which notes to be secured by a trust mortgage to be given by Ada J. Ogilvie on real estate owned by her. The said mortgage further recites as follows: “And whereas the said Ada J. Ogilvie and Thomas Ogilvie, her husband, stand ready to mortgage the property of the said Ada J. Ogilvie, hereinafter described in pursuance of the foregoing agreement and subsequent verbal agreements between the said parties above mentioned to secure the payment of certain promissory notes given by said Thomas Ogilvie to his creditors in the full sum of Forty-two Hundred and Fifty-eight Dollars and Forty-four Cents (the amount due each creditor being set forth in the.statement hereto annexed), according to the terms and tenure of said promissory notes.” The defeasance clause in the mortgage reads as follows: “ Provided, Always nevertheless that if the said Thomas Ogilvie or Mintmier and Ogilvie, their heirs, executors, or administrators shall and do well and truly pay or cause to be paid unto the said several creditors aforementioned their respective claims and demands in the full and aggregate sum of Forty-two Hundred and Fifty-eight Dollars and Forty-four Cents, being the total amount of promissory notes for the security of which tins mortgage is executed upon the days and times mentioned in said notes for the payment thereof and all costs, etc., then and from thenceforth tins present indenture and the estate hereby granted shall cease and determine and become absolutely null and void,” etc. The real estate covered by the mortgage was the property of Ada J. Ogilvie. The .notes given for the indebtedness of Mintmier & Ogilvie were signed by Thomas Ogilvie with the firm name ; the notes given for the indebtedness of “ Ogilvie & Watkins ” were signed by Thomas Ogilvie with his individual name. The firm of Mintmier & Ogilvie consisted of Christ Mintmier and Thomas Ogilvie, and the firm of Ogilvie & Watkins of Thomas Ogilvie and Lee W. Watkins. Thomas Ogilvie furnished all the capital that was put into the business of both firms. The notes maturing in three and six months were paid by Thomas Ogilvie, and the notes due in nine months not being paid a writ of scire facias was sued out on the mortgage and after the suit was at issue the parties waived a jury trial and submitted the case to the court under the provisions of the act of 22d day of April, 1874. The foregoing recital of facts may be considered as the findings of facts required to be filed by the court under the provisions of the above act of assembly. The court entered judgment in favor of plaintiff. Error assigned was entering judgment for plaintiff. In view of all the evidence submitted, and the language of the mortgage itself, this is the contract of a married woman in the form of a mortgage on her separate estate to secure the promissory notes of another, and in view of all the facts and the mortgage itself, the execution of the mortgage did not extinguish the debts evidenced by the notes. There was no novation between Thomas Ogilvie’s creditors and Ada J. Ogilvie, and there was no merger. The indebtedness on the notes was always distinctly separate from the indebtedness sought to be created by the mortgage ; then, if this is the case, the mortgage is collateral security to these notes, and we claim that if Mrs. Ogilvie can be held liable by this mortgage or contract of suretyship that she ought to be held if she was an indorser upon the notes, as it is exactly the same thing in effect; the whole transaction being a transparent device, adopted by the owners of the notes and the husband to evade the express purpose of the law to create by form a liability where by law none in fact existed: Nat. Bank v. Scofield, 168 Pa. 407; Real Est. Co. v. Roop, 132 Pa. 496; Patrick & Co. v. Smith, 165 Pa. 526. We contend that the words accommodation indorser, maker, guarantor or surety, are to be taken in their technical and legal sense, and not in the general sense which counsel would attribute to them.. Whoever becomes security for the debt of another, or pledges property for its payment, is to a certain extent a guarantor or a surety, and if a married woman who pledges her real estate for the payment of her husband’s debt is held to be a surety within the purview of the act, then the title to the same is misleading, and the act did not enlarge her powers, but forged new fetters, for this court has uniformly held that under previous acts she had that power: Du Bois Deposit Bank v. Kuntz, 175 Pa. 432.
178 Pa. 308Commonwealth ex rel. Cambria County v. Lloyd (1896)Affirmed
178 Pa. 310Hayes v. Treat (1896)Reversed
Appeal, No. 52, Oct. T., 1896, by-defendants, from judgment of C. P. Washington Co., May T., 1895, No. 45, on verdict for plaintiffs. Before Green, Wil- Ejectment for a lot of land in the borough of Washington. Before Taylor, J. At the trial, the common source of title by agreement being Mrs. Martha B. Montgomery, an heir or devisee of the estate of George Black, deceased, the plaintiffs rested on proof of a deed from A. J. Montgomery and Martha B., his wife, dated April 29, 1874, conveying the property described in the writ to “S. B. Hayes and Charles Hays” in fee, the will of Charles Hayes, admitted to probate December 8, 1886, and proof of possession by the defendants. The defendants claimed title as purchasers of the lot in dispute from the copartnership or firm of S. B. & C. Hayes, composed of Sheldon B. Hayes and said Charles Hayes, partners in the manufacture of carriages, etc., for many years prior to April 29, 1874, and until as late as May 11,1891; and in their case in chief evidence was offered and admitted as follows: (a) That the firm of S. B. & C. Hayes, by written articles of agreement dated and duly acknowdedged July 9, 1873, purchased the lot in dispute from Mrs. Martha B. Montgomerj'-, for $3,100, of which $1,100 was to be paid or secured to Mrs. Montgomery, and $2,000 was to. be paid to Edward Sexton, who owned and occupied the buildings on the lot for a livery stable. ([b) That the property was so purchased by S. B. & C. Hayes, as expressed at the time, for the purposes of the firm’s business, - and that all the purchase money was paid out of the firm’s moneys, as follows: $2,000 to Edward Sexton on April 1,1874, as provided in the articles, and to Martha B.. Montgomery $559.45 on July 14, 1874, and $573.38, including interest, on December 15, 1874. (e) That, after obtaining possession of the property in dispute, on or about April 1, 1874, the firm of S. B. & C. Hayes used the property in their firm business, without interruption, until about May 11, 1891, at first with a “repository” for carriages, etc., on part of it, and a livery stable conducted by the firm upon another part of it, subsequently renting the whole in the name of the firm as landlords, until the date last mentioned, when by articles of agreement the representatives of the partners, both then deceased, agreed to sell and convey, and the defendants herein, in trust for the Baptist Church of Washington, Pa., agreed to purchase, the property for $6,300. Qd) That of said purchase money, the sum of $4,300 was paid in cash on the date of the articles to the manager of the partnership estate of S. B. & C. Hayes, and on May 16,1891, the said manager applied $4,000 of said moneys to discharge the balance of an indebtedness of S. B. & C. Hayes to John H. Little; an indebtedness that was originally $7,000, borrowed of the Washington Savings Bank in 1878, when both partners were living, upon three judgment notes executed by the firm of S. B. & C. Hayes and signed by Charles Hayes, the plaintiffs’ testator, and subsequently transferred by the bank to said John H. Little. (e) That at once upon the purchase of the property, the Baptist Church took possession, and removing the old buildings proceeded to erect thereon a large brick church building, and had nearly completed the same at a cost of about $12,000, when, endeavoring to obtain a conveyance, they for the first time learned of an alleged defect in the record title. Defendants then rested and the court admitted on the part of the plaintiffs, after the defendants had rested, under objection and exception the testimony of Margaret Hayes, one of the plaintiffs, that before the sale of the property in controversy to the Baptist Church she had a conversation with Mrs. Henry Hull, the wife of a member of the Baptist Church, but who was not a member herself, in which the witness said that she was opposed to the sale of this property, and that she never would consent to it. This was offered for the purpose of showing notice of plaintiffs’ claim of title to the trustees of the Baptist church. [1] The court, in ten separate offers, admitted under objection and exception ten separate deeds, of different dates, for different properties, in no way connected with the property in dispute. Some of these deeds were to Sheldon B. Hayes alone, some to Sheldon B. Hayes and Charles Hayes as tenants in common and some to Sheldon B. Hayes and Charles Hayes, doing business under the firm name of S. B. & C. Hayes. The purpose of these offers was to show that Sheldon B. Hayes and Charles Hayes held some real estate individually, some as tenants in common and some as firm property. [2, 3,4,5, 6,7, 8,9,10,11] The court admitted under objection and exception the testimony of these several plaintiffs that they had never assented directly or indirectly to the sale of the property in controversy. [12, 13, 14] The court charged in part as follows: This is an action of ejectment brought February 28, 1895, by Margaret Hayes, Katherine, Lola B., Margaret F., Bessie, Charles H. Hayes and Sarah Forrest, widow and heirs at law of Charles Hayes, deceased, against Milo C. Treat, William L. McCleary and Isaac J. Dickson, trustees of the Baptist Church of Washington, Pa., to recover an undivided moiety of a lot of ground situated on the south side of East Wheeling street in the borough of Washington, fronting on said street sixty-four feet and extending back along an alley eighty-five feet, on which the defendants have erected a church edifice, and of which property they are shown to be in possession at this time. The plea entered by the defendants is the usual plea of not guilty. [There is no dispute over the title to the other moiety or half of tins lot of ground being in the defendants, it having been acquired at the same time and by "the same instrument of writing under which the defendants claim they have title to the moiety claimed by the plaintiffs in this equitable proceeding. The plaintiffs in tins action claim an undivided moiety of this lot of ground as devised under the will of Charles Hayes, deceased, the husband and the father of the plaintiffs. That will was read in your hearing. The common source of title was admitted to be a deed of conveyance, also read in your hearing, from A. J. Montgomery and Martha, his wife, to S. B. Hayes and Charles Hayes, dated April 29,1874. That the legal title, or paper title, to this moiety sued for in this action is in the plaintiffs there is no dispute. But this prima facie title of the plaintiffs the defendants contend is not sufficient to dispossess them of the equitable title in them by reason of the beneficial use and trust 'to which this property was put and held by S. B. and Charles Hayes in the partnership of S. B. & C. Hayes, from which they claim title.] [15] [If the jury find from the evidence that it was so held and used by them as partnership property, notwithstanding the conveyance of Montgomery and wife was to them as tenants in common, the equitable title set up by the defendants will prevail over the legal title; but on the other hand should you find from the evidence that this lot of ground formed no part of the partnership property of S. B. & C. Hayes, from the date of the conveyance to them until the purchase" of the property by the defendants, then the title to the undivided moiety contended for here by the plaintiffs is in the plaintiffs and good in them against all comers since parted with by Montgomery and wife, if found by you to be the individual property of Charles Hayes.] [16] It is not denied here that there was a partnership formed between S. B. Hayes and Charles Hayes many years ago, back in the ’40s, as was testified to, for the manufacture and sale of buggies and carriages, of vehicles, and the sale of lumber; that it continued to be a partnership composed only of the original copartners, Charles Hayes and S. B. Hayes, except from 1867 to 1871, during which time two other gentlemen came in and went out of the firm; the original partners continued as such until the time of their death, and the business then being continued by their survivors, and to this day remaining unsettled between their respective representatives, as it was shown that there was a proceeding in equity for the purpose of détermining it in this court. You will be relieved, therefore, in this case from determining often a very perplexing question of mixed law and fact, whether or not a partnership existed between the parties, and your duties are therefore simplified to this question for your determination. Was the property in dispute partnership property under the facts and the law applicable thereto ? Much of the time occupied in trying this case was on offers, objections to offers, and arguments on the admissibility of testimony, but the facts in the case, the relevant facts, are not many nor difficult of application. [The plaintiffs made out their prima facie case by introducing in evidence the deed from Montgomery and wife and the will of Charles Hayes, and proving possession by the defendants of this property. That made out for them, gentlemen of the jury, a complete legal title.] [17] [The defendants claim they are entitled to a verdict at your hands because they have shown that when one J. M. House had started an opposition factory across the street from the property in dispute, which was a livery stable then, S. B. & C. Hayes, in order to get nearer to that opposition business and be better able to compete with it, purchased this property with partnership funds, put in a livery stock, and built as an addition thereto, first, a two-story brick repository, put in a stock of buggies and carriages, leased ground adjacent thereto, erected a frame structure in which they kept their omnibuses and horses for the omnibus business in this branch of the business, — all with partnership funds; that they employed from time to time managers for this business, and that the accounts and expenses of this business were kept in the books of the firm at the factory on Franklin street, and the proceeds of the business there turned into the general partnership account; and other facts and circumstances from which the defendants claim, in connection with those enumerated, that this property was held for the beneficial ownership and uses of the firm of S. B. & C. Hayes, and not by them as individuals or tenants in common as the deed of conveyance imports on its face.] [18] S. B. Hayes, of this firm, died in 1879, and Ms interest in the partnership passed by his will to his son Marshall, and the business was continued in connection with the surviving partner, Charles Hayes. Charles Hayes died in 1886, and the business was continued by Marshall Hayes, who died in 1891, when Sheldon B. Hayes, son of Marshall Hayes, continued to run the business for a short time, when efforts were made by the executors of Charles Hayes to wind up the business. By the will of Charles Hayes Ms executors were empowered to sell' the real estate of the firm for the payment of the debts of the firm. From time to time the property in dispute here, the rents and issues from it, were also turned into the partnership account. A considerable sum was owing to John H. Little, who held tbe firm’s paper for some years, and this property in dispute was offered for sale and finally sold for $6,300, by articles of agreement entered into by Sheldon Hayes and George Hayes, representing the interest of Marshall Hayes, which was at one time that of S. B. Hayes, and the executors of Charles Hayes, to assist in winding up the firm business, on the one part, and the defendants in this suit on the other part, who paid $4,300 of the purchase money, which was applied in payment of the firm’s old indebtedness to Little, entered into possession of the property under these articles of agreement read to you, dated May 11,1891, removed the stable and repository and erected thereon the church building now to be seen on this lot of ground. Under this article of agreement the defendants here, having both the title of S. B. and C. Hayes in this property, are entitled to a deed when the consideration money is paid in full. The plaintiffs testify that they never gave any authority to any one to sell the interest they claim in this property, or consented to the sale of it. If you find it was partnership property, no authority or consent from them was necessary, as authority to sell was vested in Charles Hayes’ executors in connection with the managers of the then existing firm by reason of its still being unsettled or wound up. If it is found by you to be the separate property of Charles Hayes, then it could not be sold without their consent or authority, — that is, the plaintiffs in this case, — and the only manner in which they could be defeated hi this action would be by the doctrine of estoppel, which has been set up here but not seriously urged; and even that would not affect Charles Hayes, one of the plaintiffs here, — the doctrine of estoppel if it were applied here would not affect Charles Hayes, the young man, because it was proved that at that time he was not of age. [An estoppel is where one claiming a title to property stands by, as it is said, and permits an innocent purchaser for value to enter upon the property claimed and make improvements, without asserting title. It is, in law, an act or admission that after-wards cannot legally be denied; and if you should be satisfied from the evidence that the plaintiffs in this case knew of the sale and interposed no objections thereto, and suffered the defendants to go on with their improvement without asserting their title as they now set it np, they are in law estopped from asserting it in this action. And the same principle would apply, gentlemen of the jury, to the defendants. It is alleged that they had notice before they bought or tore down the old structure or commenced the erection of the new; — if they had information that the title was defective or that the Hayeses here claimed to have an interest in this property, then it would have been their business to have investigated. Both upon the question of acquiescing by the plaintiffs in what was done by way of improving this property, and also of notice on the part of the defendants as to the existing title.claimed by the plaintiffs, you will take all the evidence into account concerning that, and determine whether or not upon either of those branches of the case one side or the other are entitled to any serious consideration in this investigation. You will recall all the testimony touching upon that branch of the case and give it the weight you think it entitled to receive, as it is your duty to consider all the evidence in the case, as from it you are to determine the rights of these parties.] [19] [Now, as to the law, gentlemen of the jury. This is an equitable proceeding as distinguished from one where the parties stand purely on their legal rights; and the general rule of equity as applied in courts of equity is, that real estate purchased for and appropriated to, or intended to be used for partnership purposes, and paid for out of partnership funds, is partnership property, although the legal title, such as that under which the plaintiffs in this action claim and have shown, is taken in the individual names of the partners, or in the name of one of the partners, or in the name of a third person even, equity will hold the party holding the legal title, or his heirs in case of his death, as trustees for the firm: 1 Lindley on Part. Am. ed. p. 334, n.; Abbott’s App., 50 Pa. 234; Lacy v. Hall, 37 Pa. 360; Erwin’s App., 39 Pa. 535; and many other Pennsylvania cases, as well as those of other states, we might cite. In these cases it is distinctly laid down that land bought for partnership purposes and paid for out of partnership funds is partnership property, though conveyed by deed to the partners as tenants in common, to use the language of Abbott’s Appeal. Real property, purchased with partnership funds and held for the purposes of the firm, is held by courts of equity as constituting a part of the stock of the partnership; it leaves the legal title undisturbed except so far as may be necessary to protect the equitable rights of the respective parties. Such real estate is regarded in equity as personal property so far as may be necessary for the payment of debts and the adjustment of accounts between the partners. In equity this property in dis pute, if found by the jury that it was purchased with partnership funds and devoted to partnership uses, would be regarded as held in trust as partnership property, and therefore subject to the rules applicable to partnership personal property, and liable to the claims of the partners, or their survivors, upon each other, and the debts of the partnership. Real property so purchased which remains after paying the debts of the firm and the just and equitable claims of the different members of the firm, as between themselves, is considered and treated as real estate. We deem it unnecessary to say anything further to you upon the law of the case.] [20] [The degree of proof necessary to establish that this was partnership property must be clear, explicit aiid unequivocal from all the evidence in the case, or to use the language of a more recent decision, clear, precise and indubitable.] [21] [Your verdict, if you should find for the plaintiffs, would be for the plaintiffs for the land in dispute, which is described in the praecipe for the writ to be an undivided one half of this lot of ground.] [22] If you find for the defendants you simply return a verdict for the defendants. Should you find that this was not partnership property but the individual property of Charles Hayes, and find that the plaintiffs are estopped in any way under the law of estoppel as previously stated, you will still find for the defendants except as to the interest of Charles Hayes, one of the plaintiffs here, for his undivided interest, which would be one seventh of one half, or one fourteenth of the whole. But if you find from evidence in the case, and the law that you must apply thereto as a fact, that it was partnership property, then the title set up here by the defendants is good as against the legal title not denied to be in the plaintiffs. Plaintiffs’ point and answer thereto among others were as follows: 10. The proof necessary to convert real estate conveyed to the partners as tenants in common into partnership assets must be clear, explicit and unequivocal, and in the absence of such proof the verdict of the jury must be for the plaintiffs. Answer: Affirmed. [23] Defendants’ point and answer thereto among others were as follows: 2. If the jury find from the evidence that the land in dispute was purchased by the firm of S. B. & C. Hayes for use in their partnership business, and was paid for with partnership funds, and was devoted by them to use in the partnership business, the firm of S. B. & C. Hayes became the beneficial owners of the said land, and their title must prevail in this suit against the legal title of Charles Hayes as a tenant in common with S. B. Hayes, and the verdict should be for the defendants. Answer: That is affirmed, if you find that to be the case. [24] Verdict and judgment for plaintiffs. Defendants appealed. Errors assigned among others were (1-14) various rulings on evidence (15-24) above instructions, quoting them; (25) the charge was misleading and confusing. The equitable title under the articles of July 9, 1873, as sustained by the evidence, was the main branch of the defendants’ case. The articles transferred the estate in equity, and the vendor, Mrs. Martha Montgomery, became a trustee for the purchasers: 2 Add. on Cont., 872; Seton v. Slade, 7 Ves. 274; Taylor v. Abbott, 41 Pa. 352. When the purchase money has been paid in full under the articles of purchase, the legal estate becomes a dry trust, and the holder of the equitable title can compel a conveyance: Kay v. Scates, 37 Pa. 31; Ogden’s App., 70 Pa. 501; Keyser’s App., 57 Pa. 236; Riel v. Gannon, 161 Pa. 289; Rife v. Geyer, 59 Pa. 393; Jamison v. Dimock, 95 Pa. 52; White v. Patterson, 139 Pa. 429; Todd v. Campbell, 32 Pa. 250; Reno v. Moss, 120 Pa. 67; Wylie v. Mansley, 132 Pa. 65; Dougan v. Blocher, 24 Pa. 28; Piersol v. Neill, 63 Pa. 420; O’Hara v. Dilworth, 72 Pa. 397; Lewis v. Baker, 151 Pa. 529. It is clear, upon principle and authority, that there was no merger of the equitable estate created by the articles of July 9, 1873, in the alleged .legal title transferred by the deed of April 29, 1874: Carrow v. Headley, 155 Pa. 96; Wallace v. Blair, 1 Gr. 75; Broom’s Leg. Maxims, 176; Pennock v. Eagles, 102 Pa. 295; Wagner v. Wanrich, 1 Woodw. 37. It will be observed that from the beginning of the defendants’ case to the end, every offer made to show the equitable estate in the defendants was met by the repeated and persistent objection that the apparent legal estate conveyed by the Montgomery deed could not be affected by the evidence offered, in utter forgetfulness of the settled rule that no careful conveyancer will ever pass a deed for firm property when made to a firm in its firm name; that, owing to the fact that in a partnership, “ every addition or retirement of a member, though the business be conducted under the same name, ends the old and forms a new and distinct firm, ... a deed to or by a firm, in a conventional name, either wholly fails to convey the legal title or is wholly defective: Bates Law of Part. sec. 174. The fact that the plaintiffs’ witnesses did not consent, directly or indirectly, to the sale of the property to the defendants, was immaterial. There was evidence of an estoppel to be submitted to the jury in this case: 2 Beach Modern Equity, sec. 1, 105; Morgan v. R. R., 96 U. S. 716; Chapman v. Chapman, 59 Pa. 214; Woods v. Wilson, 37 Pa. 379; Logan v. Gardner, 136 Pa. 588. Impressed with the conviction that, under the unimpeached and uncontradicted evidence in the case, the property in dispute at the time of its purchase by the defendants was the partnership property of S. B. & C. Hayes, and passed by the purchase to the defendants, we submit that there was nothing to leave to the jury upon the subject, and nothing to support their verdict for the plaintiffs : 1 Lindley on Part. 5th ed. Wentworth, ed. 1888; Shanks v. Klein, 104 U. S. 18. Real estate belonging to a partnership is in equity treated as personalty, so far as is necessary to preserve the equities of the partners and partnership creditors; in other respects it is realty: West Hickory Mining Assn. v. Reed, 80 Pa. 38; Moderwell v. Mullison, 21 Pa. 257; Lacy v. Hall, 37 Pa. 360; Erwin’s App., 39 Pa. 535; Billmyer v. Sleifer, 2 Pitts. 539; Abbott’s App., 50 Pa. 234; Meason v. Kaine, 63 Pa. 335; Ebbert’s App., 70 Pa. 79; Moore v. Wood, 171 Pa. 365; Warriner v. Mitchell, 128 Pa. 153; Collner v. Greig, 137 Pa. 606; Titusville Bank’s App., 83 Pa. 203; Gunnison v. Loan Co., 175 Pa. 303; Foster’s App., 74 Pa. 391. In Pennsylvania the decisions have been uniform to the effect that when a conveyance is taken by the individuals composing a firm as tenants in common, they must be so considered : Lancaster Bank v. Myley, 13 Pa. 544 Hale v. Henrie, 2 Watts, 143; Ridgway, Budd & Co.’s App., 15 Pa. 181; Coder v. Huling, 27 Pa. 84; Erwin’s App., 39 Pa. 535; Frye v. Shepler, 7 Pa. 91; Haslet v. Haslet, 6 Watts, 464; Chadwick v. Felt, 35 Pa. 305; Ebbert’s App., 70 Pa. 79; Jones’s App., 70 Pa. 169; Meily v. Wood, 71 Pa. 488; Foster’s App., 74 Pa. 391; Geddes’ App., 84 Pa. 485; Holt’s App., 98 Pa. 257. It is not competent to show by parol that real estate conveyed to two persons as tenants in common is partnership property: McDermot v. Laurence, 7 S. & R. 438; Gunnison v. Erie Dime Savings & Loan Co., 157 Pa. 303; Harding v. Devitt, 10 Phila. 95. It is true, equity will in case of fraud or mistake reform a written contract so as to conform to the intention of the parties, Snyder v. May, 19 Pa. 235, but the party alleging the mistake must establish it by clear, precise and indubitable evidence : Stine v. Sherk, 1 W. & S. 195; Logue’s App., 104 Pa. 136; Sylvius v. Kosek, 117 Pa. 67; Breneiser v. Davis, 141 Pa. 85; Van Horn v. Munell, 145 Pa. 497. It is not for the court to rule as a matter of law, that words amount to an estoppel in pais: Brubaker v. Okeson, 36 Pa. 519; Maynes v. Atwater, 88 Pa. 496. Notice affecting the title to land or acts to be done upon it need only be given to the tenant in possession: Paden v. Akin, 7 W. & S. 456; Gregg v. Patterson, 9 W. & S. 197; McMahan v. McMahan, 13 Pa. 376; Story’s Equity, secs. 64, 96, 97, 117, 243; Knouff v. Thompson, 16 Pa. 357; Hill v. Epley, 31 Pa. 331; Hill v. Meyers, 43 Pa. 170; Allen v. Allen, 45 Pa. 468; Lawrence v. Luhr, 65 Pa. 236; Thompson’s App., 126 Pa. 367; McAninch v. Laughlin, 13 Pa. 371; Rogers v. Walker, 6 Pa. 374; Innis v. Templeton, 95 Pa. 262.
178 Pa. 325In re Fisher (1896)Affirmed
Streets — Constitutional law — Declaration of rights — Act of April 1, 1870. The act of April 1, 1870, P. L. 751, entitled “ An act relative to streets in the city of Allegheny,” in so far as it makes the city a judge in its own ease in condemnation proceedings, is a palpable violation of the declaration of rights, and is unconstitutional. Streets — Change of grade — Act of May 16,1891 — Remedy.' A party entitled to relief will not be turned away from the courts because his property has been taken, injured or destroyed under a local law that makes no provision for .compensation, so long as a general law can be found which supplies the deficiency in the local law, and gives him an ample remedy. The city of Allegheny changed the grade of one of its streets. It had a right to do so both under the act of April 1, 1870, P. L. 751, and the act of May 16, 1891, P. L. 76. The act of 1870 made no legal provision for ascertaining the damages done by the change of grade. Held, that a landowner injured by the change of grade had a right to avail himself of the remedy provided by the act of 1891.
178 Pa. 331National Premium, Building & Loan Ass'n v. Seibert (1896)Affirmed
Appeal, No. 20, Oct. T., 1896, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1895, No. 307, discharging rule for judgment for want of sufficient affidavit of defense. Rule for judgment for want of a sufficient affidavit of defense. Plaintiff’s statement was as follows: Nicholas Seibert, defendant in this suit, is indebted to the National Premium, Building & Loan Association, No. 3, of Allegheny City, the plaintiff in this suit, in the sum of $2,077.41, being a balance due and owing upon a certain mortgage made by a certain Fred. C. Schwartz to the said plaintiff, dated July 18, 1892, and city and county taxes and water rents assessed for the years 1894 and 1895 upon the premises mortgaged in said mortgage, also one and a half year’s rent from January 1,1894 to July 1, 1895, due under the lease described in said mortgage, which rent, taxes and water rents said plaintiff was compelled to pay, and did pay, to preserve its rights to said lease; which said rents, taxes and water rents the said Fred. C. Schwartz by said lease covenanted to pay, but neglected to do so. That the said Nicholas Seibert, defendant, became personally liable to pay said balance owing upon said mortgage and said rent, taxes and water rents by reason of an assignment of said lease made by said Schwartz to said defendant, dated June 2, 1893, in which it was stipulated as follows, to wit: “ Subject to all the terms, conditions, stipulations and covenants therein contained,” and also, “ subject to the payment of the money owing upon the mortgage of the National Premium, Building and Loan Association, No. 3, of Allegheny City, dated July 18, 1892, which said Seibert assumes to pay.” That the said assignment of said lease was accepted by said defendant, by an instrument in writing dated June 2,1893, signed by him, the said defendant, and wherein he expressly accepted said assignment and covenanted and agreed “ to fulfill the terms of the original lease and perform the conditions, stipulations and covenants therein contained as fully as though he were the original lessee;” which covenants he has failed to perform. That the said mortgage became due and collectible on June 17, 1895, by reason of the default made for upwards of six months by said Schwartz and Seibert to pay the weekly dues, etc., secured thereby, and on a writ of fieri facias at No. 227, July term, 1895, issued on a judgment entered on the bond accompanying said mortgage, the said leasehold was sold at sheriff’s sale to said plaintiff for $10.00 on July 2, 1895, which sum was applied to the costs on said writ. That the said defendant has been twice notified that all the plaintiff wanted was its money, and that the defendant could have the lease assigned to him on payment of what the property cost plaintiff, but the defendant never offered to do so. That the said Seibert received the whole proceeds of said mortgage. Plaintiff attaches copies of said mortgage, lease, assignment and acceptance thereof by said defendant, and also an itemized statement of its claim and makes the same part hereof. Defendant filed the following affidavit of defense: That defendant is not, and never was at any time a stockholder in said plaintiff association, and that he has not, at any time, ever had any contract relation with plaintiff association under and whereby he might, or could become indebted to it; that he is informed and verily believes that, as alleged in plaintiff’s statement, Fredrick C. Schwartz, by articles of agreement dated July 1, 1892, with Mary E. Schenley, obtained a lease on certain premises situate on Cedar avenue, Allegheny City, Pa.; that on July 18,1892, said Frederick C. Schwartz, a stockholder in said plaintiff association, executed his bond and mortgage to plaintiff association upon said leasehold, conditioned for the payment of the sum of $2,300, as shown by said mortgage referred to and made part of plaintiff’s statement; that of said sum of $2,300, said plaintiff association paid to the mortgagor therein named only the sum of $1,800, at the time the same was executed and delivered: that on June 2,1893, by assignment of said Frederick C. Schwartz to defendant, the said leasehold became vested in defendant, subject to the payment of the mortgage hereinbefore mentioned; that on March 31, 1894, an agreement in writing was entered into between Frederick C. Schwartz and defendant in words as follows, to wit: “ I agree hereby to transfer the foregoing described property to Frederick C. Schwartz upon payment of $500.00, and other conditions as we may agree upon, to me by Frederick C. Schwartz. Frederick C. Schwartz to pay all liens against property; ” that the said Frederick C. Schwartz obtained the sum of $500, consideration expressed in said agreement, from the said plaintiff association, and the said agreement was consummated and said leasehold transferred to said Frederick C. Schwartz, with the knowledge of the said plaintiff association of such reassignment, and the said Schwartz thereupon and thereafter made and continued to make the payments required by the constitution and by-laws of the said plaintiff association, and that at the time of said reassignment there were no arrearages due on the stock in said plaintiff association, which stock stood in the name of the said Frederick C. Schwartz, and carried the mortgage loan referred to; that the foreclosure proceeding referred to in plaintiff’s affidavit of claim was made without legal notice to defendant; that defendant has no knowledge of the matters alleged in plaintiff’s statement showing items alleged to be due on account of said mortgage and taxes, etc., and rents alleged to have been paid by said plaintiff association, and defendant demands proof thereof; that said mortgage was given as collateral to a bond accompanying the same, executed by the said Frederick C. Schwartz,.and defendant is informed and verily believes that said plaintiff association, as a matter of law, has no right of action against him based upon the said mortgage and assignment of said leasehold to him, mentioned and specified in plaintiff’s statement of claim; that the assignment to him of said leasehold is not such as would in any way make him personally liable to plaintiff association for the amount of said mortgage, or for any part thereof, or for any sum or sums that may accrue thereupon, and that if plaintiff association paid the moneys, to wit : taxes, etc., and rents as alleged in plaintiff’s statement and affidavit of claim, such payment was not made by said plaintiff association for the use of defendant, nor with his knowledge, nor under his instructions or directions. The court, Kennedy, P. J., discharged a rule for judgment for want of a sufficient affidavit of defense. Error assigned was above order. The authorities are uniform that it is the acceptance of a grant containing an assumption or agreement by the grantee to pay an incumbrance or debt which creates the grantee’s personal liability: Woodward’s App., 38 Pa. 322; Fisk v. Taiman, 124 Mass. 254; Locke v. Homer, 131 Mass. 93; Rice v. Sanders, 152 Mass. 108; Furniss v. Durgin, 119 Mass. 500; Dean v. Walker, 107 Ill. 540; Bay v. Williams, 112 Ill. 91; Rickman v. Miller, 39 Kans. 362; Crawford v. Edwards, 33 Mich. 354; Stanton v. Kenrick, 135 Ind. 382; Birk v. Abbott, 103 Ind. 1; Kelso v. Fleming, 104 Ind. 180; Fitzgerald v. Barker, 70 Mo. 589; Heim v. Vogel, 69 Mo. 529; O’Connor v. O’Connor, 88 Tenn. 76; Bishop v. Douglass, 25 Wis. 696; Jones on Mortgages, sec. 752; Wiltsie on Mortgage Foreclosure, secs. 224 and 613; Merriman v. Moore, 90 Pa. 78; Hoff's App., 24 Pa. 200; Delp v. Brewing Co., 123 Pa. 42; Justice v. Tallman, 86 Pa. 147; Hind v. Holdship, 2 Watts, 104; Blood v. Crew Levick, 171 Pa. 328; Equitable Life Assn. v. Bostwick, 100 N. Y. 628; Belmont v. Conant, 22 N. Y. 438; Hare v. Murphy, 45 Neb. 809; Roth v. Berner, 2 Penny. 214; McClaughry v. McClaughry, 121 Pa. 477; Marshall v. Franklin Ins. Co., 38 W. N. C. 473; Johnson v. Harder, 45 Iowa, 677; Schmucker v. Sibert, 18 Kans. 104; Josslyn v. Edwards, 57 Ind. 212. As to the rents and taxes paid by the plaintiff, they might perhaps be considered as part of the mortgage debt: Jones on ’Mortgages, sec. 77; Port v. Jackson, 17 Johns. (N. Y.) 239; Rawlings v. Duvall, 4 H. & McH. (Md.) 1; Lapen v. Gill, 129 Mass. 349; Hogg v. Longstreth, 97 Pa. 255; Selden v. B. & L. Assn., 81* Pa. 336; Johnson v. B. & L. Assn., 104 Pa. 394. It is well settled that a lessee cannot hy an assignment of the lease relieve himself from his liability on his covenants in the lease, though the lessor consents to the assignment and accepts rent from the assignee: Frank v. Maguire, 42 Pa. 77. The same rule applies to a grantee assuming a mortgage. But assuming that the lease was in fact reassigned by the deT fendant to Schwartz, this would not release the defendant, but would only convert him into a surety for Schwartz, who would again become the principal debtor: Steele’s App., 47 Pa. 437; Paine v. Jones, 76 N. Y. 274; Flagg v. Gellmacher, 98 Ill. 293; Union Life Ins. Co. v. Hanford, 143 U. S. 187; Mechanics Savings Bank v. Goff, 13 R. I. 516; Corning v. Burton, 102 Mich. 87; Weber v. Zeimett, 30 Wis. 283; Locke v. Homer, 131 Mass. 93. The defendant, perhaps, relies upon the act of June 12, 1878, P. L. 205 (2 Purd. Dig. 1837); Dorsey’s App., 72 Pa. 192; Com. v. Samuels, 163 Pa. 283. Where the grantee in an absolute conveyance of land assumes and agrees to pay a mortgage thereon, given by his grantor, an absolute and irrevocable obligation is thereby created in favor of the mortgagee, which cannot be released or affected by any act or agreement of the mortgagor, to which the mortgagee does not assent: 15 Am. & Eng. Ency. of Law, 841; Bay v. Williams, 112 Ill. 91; Douglass v. Wells, 18 Hun (N. Y.), 88; Garnsey v. Rogers, 47 N. Y. 233; Ramsey v. McMullen, 5 Abb. N. C. (N. Y.) 246; Ramsey v. Peyser, 5 Abb. N. C. (N. Y.) 259; Rogers v. Gosnell, 58 Mo. 592; and to the same effect are Lawrence v. Fox, 20 N. Y. 268; Hartley v. Harrison, 24 N. Y. 170; Bigelow v. Davis, 7 Barb. (N. Y.) 565; Campbell v. Smith, 71 N. Y. 26 ; Urquhart v. Brayton, 12 R. I. 173; Henderson v. McDonald, 84 Ind. 149; Pruitt v. Pruitt, 91 Ind. 595; Watkins v. Pope, 38 Ga. 518; Wilson v. Burton, 52 Vt. 394; Keedle v. Flack, 27 Neb. 834.
178 Pa. 337Pender v. Raggs (1896)Affirmed
Appeal, No. 23, Oct. T., 1896, by defendants, from judgment of O. P. No. 3, Allegheny Co., Aug. T., 1892, No. 213, on verdict for plaintiff. Trespass for personal injuries. Before Kennedy, P. J. The facts appear by the charge of the court. When George P. Kretz was on the stand plaintiff offered to prove by him that the specifications required that Ruben, one of the defendants, was to be allowed to occupy the two stores that he occupied to carry on his business until the two stores next to the Duquesne Bank could be made ready to be occupied by him while the building was being erected; that the two stores next to the Duquesne Bank were two new stores to be built and not two stores standing. Defendants objected to the offer as incompetent, that the language in the specifications speaks for itself, and-it is not for the witness to construe that language, but for the judge. Objection overruled. Exception allowed and bill sealed. Mr. Kretz testified as follows : “ The specifications by the two stores next to the Duquesne Bank mean that I was to erect them so Mr. Ruben could occupy them temporarily as a lower floor to carry on his. business for a specified time set there.” [13] The court charged the jury in part as follows : It seems that about the first of April, 1892, these defendants, Solomon & Ruben, owning or controlling a large lot of ground on the corner of Smithfield street and Diamond alley, in this city, fronting one hundred and sixty feet on Smithfield street and running along Diamond street ninety'feet, desired to erect a new building thereon, and made a contract with one George P. Kretz for the removal of the old buildings on the lot and the erection of the new one. Mr. Kretz sublet the contract for the removal of the old buildings to Ramsden & Raggs. Both of these contracts, that is, the contract between Solomon & Rubén and Kretz, and the contract of Kretz with Ramsden & Raggs were in writing, but with the contract between Kretz and Rams-den & Raggs you have no concern. The contract between Solomon & Ruben and Kretz, as I have told you, was in writing, and is what was called an independent contract, that is, under this contract for the removal of the old buildings and the erection of the new one Mr. Kretz was an independent contractor. This is one of the questions of law which you have heard discussed, and I instruct you that so far as this contract is concerned it was an independent one, and Mr. Kretz was an independent contractor. And if the work had been done under that contract without any interference, which I will hereafter explain to you, on the part of Solomon & Ruben, the defendants, there would be no liability upon their part to the plaintiff in this -case, and there could be no recovery here. So that leads us to the first question of fact for you to determine; was there interference here, such interference on the part of the defendants, Solomon & Ruben, in this work as would render them liable for the damages resulting from this accident to the plaintiff? In order to entitle the plaintiff to recover from these defendants he must satisfy you that there was such interference on the part of the defendants, Solomon & Ruben, that amounted to an assumption by them of the direction and control of the work. You have heard the discussion of the contract, that there were certain reservations made to Solomon & Ruben. For instance, they reserved the right to occupy the store that they were in at the time of the execution of the contract, which was about the middle of the lot, for a certain length of time, and afterwards to occupy temporarily the two stores on the lower end of the lot next to the Duquesne Bank, and that the contractor, Kretz, was to interfere with them and their business as little as possible in the prosecution of his work under the contract. But that, gentlemen, was not such a reservation to Solomon & Ruben as would take from this contract its character as an independent one. I so instruct you. But as I have said to you, and that you will bear in mind, in order to entitle the plaintiff to recover damages at all in this case, he must satisfy you that there was such interference on the part of Solomon & Ruben as amounted to an assumption of the control and direction of the work done under the contract. The plaintiff claims that after the work had been prosecuted to a certain extent, and Solomon & Ruben had moved into the two stores next to the Duquesne Bank, and were occupying them, that part of the work to be done there was the erection of a stack in the neighborhood of this wall which fell subsequently, and that, in the work of the digging of the hole for the erection of the stack, Solomon & Ruben interfered to such an extent as amounted to an assumption upon their part of the direction and control of the work, in that, they prevented the contractor, Kretz, and his subcontractors, from removing the wall which was within a few feet of this hole that was being made for the foundation for the stack; and that that wall was dangerous in its character, and fell into the hole, and the man was injured thereby. For these injuries he now seeks compensation from the defendants, claiming that the accident occurred through their negligence; that they, by their interference with the contractor and, subcontractors, assumed such control and direction of the work as to make them liable in this action. The plaintiff claims that they positively prohibited the contractor, Kretz, from taking down this wall. You will observe, as I have stated, that they were to be allowed to occupy these two stores temporarily, and were to be interfered with as little’ as possible in their occupation of those stores in their business, and they had a right to require these contractors to act in a reasonable manner in the prosecution of their work. But the plaintiff claims that the only reasonable and proper mode of performing this work was to tear down this wall which you have heard described as dangerous, and that when the contractor and his subcontractors attempted to tear it down that they were interfered with and positively prevented from doing so by the defendants. [If you are satisfied that that was done by these defendants, that they did interfere and prevent the contractor or his subcontractor from removing this wall, and that there was no other safe way of prosecuting the work, than by the removal of the wall, and that they not only prevented the contractors from so doing, but assumed the control and the direction of the work, then they would be liable in this action to the plaintiff -provided the plaintiff was not guilty of contributory negligence,] [11] the discussion of which question I will come to hereafter. The defendants claim that it was not necessary to take down this wall, that it could have been braced in some way on the inside without its removal, that it would have made it perfectly safe, and that that was a reasonable way to do it; if it was, the contractors should have adopted that mode of doing it. The contention of the plaintiff is that the only proper mode of doing it was by the entire removal of the wall. The defendants claim that it might have been done in the other manner. And if it is so, if it could have been done reasonably in the other way, as claimed by the defendants, then it was the duty of the contractor and subcontractors to do it and avoid the interference that the removal of the wall would have done to the defendants. [The defendants claim further and argue to you that if you believe the statements of certain of the witnesses on the part of the plaintiff himself, then he was-guilty, of contributory negligence ; if he was, then -he cannot recover in this action — that is a principle of law which you will bear in mind. If the plaintiff was guilty of any contributory negligence, -negligence that •contributed in any way to the accident that produced'-the injuries, he is not entitled to recover. And those statements are that the wall was so obviouslj dangerous that he could not help observing the danger himself; that he was bound to observe the danger from the condition of the wall as testified to by some of the witnesses for the plaintiff. If that is true, gentlemen, if the statement as to the condition of this wall, that it was so dangerous, or the danger from it was obvious to every one, then the plaintiff would be bound to notice it and he worked there at his own peril — he would be guilty of contributory negligence and could not recover. But the plaintiff claims that the danger was not obvious or manifest to him — so plainly to be seen that he was bound to observe it and avoid the danger.] [12] That, then, is the second question of fact for you to determine, and before you can find a verdict here in favor of the plaintiff for anything you must answer both of these questions that I have stated to you in favor of the plaintiff; that is, you must find that there was such an interference with this work on the part of the defendants that it amounted to an assumption of the control and the direction of the work by them. And you must find also that the plaintiff was not guilty of any contributory negligence, any negligence upon his part contributing in any way to the accident complained of. Verdict and judgment for plaintiff for $1,250. Defendants appealed. Errors assigned among others were (11-12) above instructions, quoting them. cited, Diehl v. Iron Co., 140 Pa. 496; Pollock on Torts, 640. cited: Gilbert v. Beach, 16 N. Y. 608; Hefferman v. Benkard, 1 Robt. 432; Jones v. Chantry, 4 N. Y. S. C. (T. & C.) 63; Hydraulic Works Co. v. Orr, 83 Pa. 332; Schilling v. Abernathy, 112 Pa. 437; Johnston v. Ott Brothers, 155 Pa. 17; Marble v. Worcester, 4 Gray, 395; Bunting v. Hogsett, 139 Pa. 375; Burrell Twp. v. Uncapher, 117 Pa. 353.
178 Pa. 342Williams v. Guffy (1896)Affirmed
Lease — Oil and gas lease — Termination of lease. An oil and gas lease stipulated that it was “ for the sole and only purpose of drilling and operating wells and storing and transporting oil or gas .... to have and to hold said premises .... for and during until the full term of twenty years.” The lease further stipulated that if gas should be obtained in sufficient quantities and utilized, $500 per year should be paid for each and every well drilled. The lessee was to complete one well within six months of the lease; “ if oil and gas or neither is found on this property within two years from date then this lease to expire and be of no effect.” The lessees completed a well within six months, and found gas and utilized it, and subsequently the laud became exhausted, and no more gas was produced. Held, that the lessees were not liable for rent after the cessation of the production of gas and use of well.
178 Pa. 346Katz v. Johnston (1896)Affirmed
Appeal, No. 28, Oct. T., 1896, by-defendant, from decree of C. P. No. 2, Allegheny County, Jan. Term, 1896, No. 187, on bill in equity. Bill in equity for an account and for an injunction. White, J., filed the following opinion: On the 28th day of March, 1893, the plaintiff and defendant bought from W. J. Dible and J. E. Hunter a piece of ground in Turtle Creek, this county, containing about one acre, and the deed was executed to them of that date.
178 Pa. 356Ramlack v. Wolf (1896)Affirmed
Promissory notes — Accommodation indorser — Evidence — Question for jury. In an action by a holder of a promissory note against the first indorser, who was an accommodation indorser, it appeared that the second indorser owed the holder $1,000 on a judgment note and over $800 on book account. Both the holder and the second indorser testified that the note in suit, which was for $2,000, was given in payment of the judgment note which was surrendered, and also in payment of the book account, and that the difference making up the $2,000 was paid by the holder to the second indorser in cash. Held, that the evidence was sufficient to support a verdict and judgment against the first indorser for the full amount of the note.
178 Pa. 363City of McKeesport v. Soles (1896)Affirmed
Appeal, No. 51, Oct. T., 1896, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. Term, 1892, No. 126, on verdict for plaintiff. Scire facias sur municipal lien for grading and paving a portion of Fifth avenue in the city of McKeesport. The case was previously reported in 165 Pa. 628. At the trial the case turned on whether the defendant’s property was urban or rural. The court, White, J., charged in part as follows: [The principle of all these local assessments is that the properties are benefited by these local improvements, and therefore ought to pay for them, and that is a sound principle. Where there is a public benefit, or any improvement for the general public, it is paid for by general taxation; but these local improvements, where the properties are benefited by it, the properties should pay for. The only difficulty in the case I have mentioned was to get at a rule for assessing the benefits. The foot front rule was adopted; that is, that the expense should be borne by the property holders according to the frontage of their property at so much a foot front. That was sustained in this state and nearly all the improvements made in the city — out in the rural regions of our city — were made and paid for on that basis. But there was a disposition to extend that beyond all reason, and hence it led to a reaction. The case ivas what is called Washington Avenue Improvement. That was the case of an avenue that was laid out on the southern side of the city, to extend away out into the country, through farms miles out in the country, by a special act authorizing it to be done, and authorizing an assessment of the farms for a distance on each side. When that came before the, Supreme Court, they said that was Afrong; that while this foot front rule was right enough in cities, it could not be extended to farm land, and that an improA'ement of that kind, running out miles through the country, through farm land, was a perversion of that principle, was unconstitutional and wrong. So in the Penn Avenue case, persons living out in East Liberty, miles from the city, wanted to have a magnificent driveway in place of the old Greensburg pike, and they got a special act of the legislature, authorizing that to be constructed. At that time there were a good many farms between what was known as East Liberty and the city, and they undertook to assess all those farm lands and everybody along the line of Penn avenue so much a foot front, and that Avas declared by the Supreme Court unconstitxitional, and the principle in those cases was announced that rural property could not be taxed by the foot front for an improvement of that kind. But never heretofore have we had a clear and satisfactory definition of what is to be understood as rural property, in the sense that it is not liable to an assessment for street improvementstbe principle has been announced, but no clear definition of it, perhaps because none of the cases required that. The cases that went up were manifestly through rural property, through farms on both sides, and there was no pretense of it being town land, but it was entirely and undoubtedly farm land.] [6] [Now in this case before you, allowing credit for the damages resulting from the grade, it comes down really to the expense of paving and curbing that street. As I said to you, the Supreme Court has not yet given a clear definition of what is meant by rural property, in the sense that it is to be exempt from assessments for the improvement of a stfeet. This case, however, requires me to give you some instructions on that point. I will endeavor to do so, and to define what is meant by rural property, and to illustrate its meaning by referring to cases that may happen. The land in this case is farm land. Mrs. Soles has a farm of fifty or sixty acres, which fronts on this avenue one thousand and sixty-three feet. It has always been used as farm land, either for cultivation or for pasture, and is not laid out into lots. That is proved here and is admitted; but those facts do not decide this contention. As I have said, the land has always been used for farm purposes, either for growing crops or for pasture, and has never been laid out into lots. In that sense, it is rural property, but-this fact does not determine the present controversy. The question is : Is it rural in the sense that it is not liable under the law to be assessed for the improvement of the street ? It is very difficult to give a clear definition of what is to be considered rural property, in contradistinction from city property, so as to be exempt from liability or assessments for street improvements. The character of the locality, the streets, lots, buildings and improvements," and the market value of the property, as also of the neighboring and surrounding properties, must be considered. Whether the particular properly in dispute is to be considered rural or city, depends largely upon its surroundings and the character of the property in the neighborhood. If the buildings and improvements in the neighborhood are few and scattered; if they partake of the character of the country rather than of the city or town, and are occupied by persons engaged in rural pursuits ; the locality should be considered rural. On the other hand, if the houses and improvements partake of the character of the city or town and are mainly occupied by persons engaged in city pursuits, the locality should be considered as city and not rural. A locality which is laid out in small lots, of the usual size, for city or town lots, and partly built upon with city improvements, such as paved streets, gas or water pipes, should be considered in the class of city property. There may be in the city a square or several squares or several acres of ground used only for pasture or growing crops, j'et, if in the midst of a business part of the city, it would be treated as city property, liable to a street assessment. In a large city there may be thriving villages or suburbs some distance from the main body of the city, with large farms intervening on both sides of the street. In such cases the villages or suburbs would be considered as city property and the farms as rural, but if the intervening territory be devoted to fine residences ornamented with trees and shrubbery and occupied by business men of the city, it would be classed a,s city property. If the property on one side of the street be built up, or considerably built up, with residences, factories or other places of business, the vacant lots or farm land immediately across the street should as a general rule be considered city property. The owner on one side of a street may hold back until the land on the other side is divided into lots, sold and built upon, thus having his property greatly enhanced in value, and if not liable to an assessment for the improvement of the street, he would derive an unjust advantage over the other property owners. I can hardly conceive of a case where the property on one side of the street is to be considered as city property and that on the other side as rural. It might possibly be where there were no improvements whatever on that side of the street.] [7] Verdict and judgment for plaintiff for $8,605.56. Defendant appealed. Errors assigned among others were (6, 7) above instructions, quoting them. Property used as farm land cannot be assessed according to the foot front rule for improvements to a street upon which it fronts. The costs of improving streets along rural property should be borne equally by all the taxables of the municipality: Scranton v. Coal Co., 105 Pa. 445; Philadelphia v. Rule, 93 Pa. 15; Craig v. Phila., 89 Pa. 265; McKeesport v. Soles, 165 Pa. 628; Seely v. Pittsburg, 82 Pa. 360.
178 Pa. 367Van Steuben v. Central R. R. (1896)Reversed
Appeal, No. 87, July T., 1895, by plaintiff, from judgment of C. P. Northampton Co., July T., 1895, No. 87, on verdict for defendant. ■ . Trespass to recover damages for property alleged to have been destroyed by fire through the negligence of defendant. Before Scott, J. The facts appear by the opinion of the Supreme Court. Plaintiff, by nine separate offers, proposed to prove by Joseph Applegate, Eugene Graver, Bishop Judd, John Ruple, William Root, William R. Wohlback, Eugene Kindt, Edna Redener and Mrs. Emma Kindt, that during that summer, and shortly before and shortly after the particular fire which caused the destruction of the buildings and property for which the present action is brought, there were large sparks of fire thrown by passing lpcomotives on this railroad, of the size of a man’s fist, a walnut, a hickory nut, a considerable distance from the track, and that many of them were thrown in the air as high as a hundred feet. The offer was objected to as incompetent and irrelevant. By the Court: The objection is sustained because the proposition of the plaintiff does not embrace an offer of proof that the emission of these sparks was from the engine identified as No. 315, and for the reasons given by the court in granting the defendant’s motion to strike out this testimony. Plaintiff excepts. Bill sealed. [3, 4, 5, 6, 7, 8, 9, 10, 11.] Plaintiff offered to prove by Mrs. Amelia Steuben that during the time that she lived upon this farm a coal of fire was thrown from a locomotive on the track of this railroad in question and was thrown upon the porch in front of the summerhouse ; to be followed with proof that the distance from the place where the locomotive was at the time to the place on the porch where the coal fell was one hundred and seventeen feet, for the purpose of showing the possibility that a coal of fire could be thrown this distance, as is indicated by the evidence where this fire commenced at this time. It is not offered for the purpose especially with regard to this particular locomotive. The offer was objected to as incompetent and irrelevant. Objection sustained and bill sealed for plaintiff. [12] The court gave binding instructions for defendant. [1, 2] Errors assigned were (1,2) binding instructions for defendant ; (3,12) rulings on evidence, quoting the bills of exceptions. The evidence as to the defendant’s negligence in the management of its locomotive was sufficient to submit to the jury: Henderson v. R. R., 144 Pa. 477; P. & R. R. Co. v. Hendrickson, 80 Pa. 185; R. R. v. Schultz, 93 Pa. 341; Lehigh Valley R. R. v. McKeen, 90 Pa. 123; R. R. v. Watson, 81* Pa. 293. The court virtually decides that the testimony of Edna Redener cannot be considered by the jury and that, if they do, they must give no effect to it whatever. This is legal heresy, pure and simple: Ely v. R. R., 158 Pa. 233; Kohler v. Penna. R. R., 135 Pa. 346; Glase v. Phila., 169 Pa. 492; Huyett v. R. R., 23 Pa. 374; Longenecker v. R. R., 105 Pa. 332. The Central Railroad Company of New Jersey had no legal authority under the Pennsylvania statutes to lease the Lehigh & Susquehanna Railroad to the Port Reading Railroad Company, a foreign corporation: Act of April 23, 1861, sec. 1, P. L. 410; Act of March 17, 1869, sec. 1, P. L. 11; Act of February 17, 1870, sec. 1, P. L. 31; Abbott v. R. R., 80 N. Y. 27; Ohio & Miss. R. R. v. Dunbar, 20 Ill. 623; 1 Redfield on Railways, sec. 142, Pl. 2; Ottawa R. R. v. Black, 79 Ill. 262; Troy & Boston R. R. v. B., H. T. & W. R. R., 86 N. Y. 107; Shrewsbury & B. R. R. v. L. & N. B. R. R. Co., 8 House of Lords, 113; Pierce on Railroads, 283; 5 Cases in Gen. Dig. (U. S). 1752, Pl. 18. The lease of the Central Railroad Co., if in fact to the Reading, was not a lawful lease of its L. & S. railroad and property, under the laws of New Jersey: Attorney General v. C. R. R. Co. of N. J., 50 N. J. Law, 52. There was no sufficient proof of negligence: Henderson v. R. R., 144 Pa. 487; Kohler v. R. R., 136 Pa. 346; Ely v. R. R., 158 Pa. 233; Ford v. Anderson, 139 Pa. 261; R. R. v. Yerger, 73 Pa. 121; Whelan v. Hardisty, 8 El. & Bl. 262; Jennings v. R. R., 93 Pa. 337: Post v. R. R., 108 Pa. 585; Erie Ry. v. Decker, 78 Pa. 293; R. R. v. Page, 21 W. N. C. 52; Huyett v. R. R., 23 Pa. 374; Hendrickson v. R. R., 80 Pa. 189; Longenecker v. R. R., 105 Pa. 332; R. R. v. Jones, 128 Pa. 314. Where a statute authorizes a lease, the lessee assumes during the existence of the lease all the duties and obligations of the lessor and, from the time that it enters upon the possession of the road, becomes solely liable for all injuries resulting from its management unless it is operating the road in the name of the lessor: Wood on Railway Law, sec. 490; Ditchett v. R. R., 67 N. Y. 425; Miller v. R. R., 47 Am. & Eng. R. R. Cases, 369; Arrowsmith v. R. R., 59 Am. & Eng. R. R. Cases, 79; Com. v. South Penna. R. R., 1 Pa. C. C. 214; Gummere v. Lehigh Valley R. R., 12 Pa. C. C. 106.
178 Pa. 377Fergusson v. Anglo-American Telegraph Co. (1896)Affirmed
Appeal, No. 412, Jan. T., 1895, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1890, No. 19, on verdict for plaintiff. Assumpsit for breach of contract in delivering a telegraph message. Before Pennypackeb, J. The facts appear by the charge and the opinion of the Supreme Court. The court charged in part as follows: The suit is brought to recover damages for the failure to deliver in Liverpool a cablegram given by the plaintiffs here to the Western Union Telegraph Company, and by them handed over to the defendants for transmission. It appears that there was an arrangement between the plaintiffs here and the telegraph company here and the correspondents of the plaintiffs abroad, Messrs. Bressler, Wachter & Co., that the parties should be known by the name of Octorara, and that messages backward and forward should be delivered in Liverpool to Messrs. Bressler, Wachter & Co. under the name of Octorara, and messages coming here should be delivered to the plaintiffs under that name. This, as you see, was a saving of expense to the parties, and was a very convenient arrangement, provided all of those who participated in it had the requisite knowledge as to what was meant by Octorara. On the 15th of March, 1890, the plaintiffs gave to the Western Union Telegraph Company here a telegram containing the words, “ Bewail boarish bewail bluster provided steamer Kings-dale,” and that is interpreted to mean, “ Purchase for our account fifty tons of Jarrow fifty-five to fifty-six per cent soda ash, fifty tons of Jarrow forty-eight per cent soda ash, provided shipment can be made per steamship Kingsdale.” This message reached Liverpool on the evening of March 15, and it is conceded that in the ordinary course of business it would have been delivered on that evening or the following morning. It was actually delivered to Messrs. Bressler, Wachter & Co. upon the 21st of March, some six days after. It was the duty of the defendants, if they had knowledge who were the firm meant by the word Octorara, to deliver the message with due care and diligence. If you find that the delay was caused by their lack of due diligence or due care, your verdict will be for the plaintiff. If it was not due to such want of care or diligence, your verdict will be for the defendant. In case you find for the defendant you will not be confronted with the question of damages. If, however, your determination of that' question of fact is in favor of the plaintiffs, then it is my duty to instruct you as to what the measure of damage is. [It is contended on the part of the plaintiff here that he is entitled to recover the loss of profits which resulted to him upon the failure to receive the soda ash winch he expected, and from the sale which he had actually made of that soda ash to parties here. I cannot, however, say to you that that is the measure of damage. The correct measure of damages, as I understand the law, is what the parties may reasonably be understood to contemplate at the time the contract was made as to the probable results of a failure to perform that contract.] [1] To present a case which is somewhat extreme, but which will enable you, I think, to understand the principle involved in it, is this : Suppose a person here finding that one of you was going over to New York to-morrow should give you 10 cents to deliver a sealed letter to some agent of his there, and that you on going to New York to-morrow should either forget to deliver the message, or, finding that your time was less than you had supposed, should fail to deliver it, would it be reasonable for him afterward to say that that message contained a direction to his agent to buy real estate which would have resulted in a profit to him of $100,000 or $1,000,000? Would it not be reasonable if you are to incur any such liability as that, that information should be given to you as to the importance of the message which you are bearing and the amount involved in it ? This telegram, as you see, was like the sealed letter which disclosed nothing to the party carrying it. The words, “ Bewail boarish bewail bluster,” are meaningless. [Now the law requires that where a liability of this kind is assumed that some information should be given to the carrier as to the responsibility which he is undertaking.] [2] There is no decision, so far as I know, of this question in Pennsylvania, but in the case of the Western Union Telegraph Company against Landis the then Chief Justice of the Supreme Court uses these words: “ It seems reasonable that where damages are claimed for mere delay in delivery the face of the telegram ought to contain something to put the company upon its guard. A delay of a day, or even a few hours, might cause a heavy loss.” Following the intimation contained in this decision of the Supreme Court of Pennsylvania and the decisions of other courts elsewhere [I instruct you that in case you find for the plaintiffs in this case the measure of damage is the amount which was paid for the transmission of the telegram.] [3] It appears that by admission of counsel it had been agreed that the amount paid for sending of this telegram was $2.52. Verdict and judgment for plaintiffs for $2.52. Plaintiffs appealed. Errors assigned were (1-3) above instructions, quoting them. The measure of damages was the actual loss: United States Tel. Co. v. Wenger, 55 Pa. 262; Western U. Tel. Co. v. Stevenson, 128 Pa. 442; Western U. Tel. Co. v. Landis, 21 W. N. C. 38; Adams Ex. Co. v. Egbert, 36 Pa. 360; Relf v. Rapp, 3 W. & S. 21; Camden & Amboy R. R. v. Baldauf, 16 Pa. 67; Brown v. Camden & Atlantic R. R., 83 Pa. 316; Passmore v. U. Pass. Ry., 78 Pa. 238; N. Y. & W. P. Tel. Co. v. Dryburg, 35 Pa. 298; Wolf v. Western U. Tel. Co., 62 Pa. 83; Baldwin v. U. S. Tel. Co., 1 N. Y. 125; Willock v. Penna. R. R., 166 Pa. 184; Western U. Tel. Co. v. Reynolds, 77 Va. 173; Western U. Tel. Co. v. Fatman, 73 Ga. 285. The instruction of the trial judge as to the measure of damages was correct: Hadley v. Baxendale, 9 Exch. 341; Saunders v. Stuart, L. R. 1 C. P. D. 326; Candee v. Western U. Tel. Co., 34 Wis. 471; Daniel v. Tel. Co., 61 Texas, 452; Behm v. Tel. Co., 8 Bissell, 131; Western U. Tel. Co. v. Wilson, 32 Florida, 527; Western U. Tel. Co. v. Coggin, 68 Fed. Rep. 137; Tel. Co. v. Martin, 9 Ill. App. 587; Hart v. Tel. Co., 66 Cal. 579; Primrose v. Western U. Tel. Co., 154 U. S. 1. Not only have the courts applied this strict rule with respect to the measure of damages to cipher messages, but also to ordinary messages which, upon their face, did not disclose the probable damages resulting from a delay in their delivery: Beaupré v. Pacific & Atlantic Tel. Co., 21 Minn. 155; U. S. Tel. Co. v. Gildersleeve, 29 Md. 232; Lowery v. Tel. Co., 60 N. Y. 198; Western U. Tel. Co. v. Reynolds, 77 Va. 173; Western U. Tel. Co. v. Fatman, 73 Ga. 285; U. S. Tel. Co. v. Wenger, 55 Pa. 262; Western U. Tel. Co. v. Landis, 21 W. N. C. 38. The authority of Pennypacker v. Jones, 106 Pa. 237; Adams Express Co. v. Egbert, 36 Pa. 360; Pelf v. Rapp, 3 W. & S. 21, and the other cases cited by the appellants upon the question of proximate damages, is not denied by the appellee. But it is respectfully submitted that the rule of Hadley v. Baxendale, which has been often approved by this court, renders it unnecessary in such a case as this to enter upon an investigation as to whether or not the damages claimed were the proximate result of the breach of the contract. For if, as is clearly the case, there was no expectation in the mind of defendant’s agent of any such measure of damages as that claimed by plaintiffs in this case, it does not matter at all whether or not the damages which plaintiffs suffered were direct or remote.
178 Pa. 384Keely v. Hartranft (1896)Reversed
Contract — Construction of — Parol evidence. Plaintiffs, the authors of a book, and the owners of the plates and copyright thereof, delivered the plates to defendant, and by a written contract agreed that he should be the publisher of the book, and have all the rights and use of the same, and that defendant should be the publisher of the book. Plaintiffs were to receive one quarter of the net profits arising from the sale of the book by defendant. The written contract did not prescribe the form, style or quality of the work, or fix the selling prices. All the expenditures connected with the publication and sale of the book were-to be borne by the defendant. Three editions of the book were published. There was evidence that at the time the written contract was executed there was a parol agreement providing that the book should be printed on a certain fine quality of paper, and that it should not be sold under a certain specified price per copy, which the master and the court found should be construed to apply only to the first edition and not to extend to the second and third editions; Held, (1) that as to the copies of the second and third editions, the form, style and quality of the work and the selling price of it were left to the discretion of the defendant; (2) that the defendant was not required to continue the publication and sale of the book at a loss, but it was his duty to do all that he reasonably could to promote the success of the enterprise; (3) that in an accounting after the sale of the book had practically ceased, the amount expended in the publication of the unsold books should be deducted from their market value,.and one fourth of the balance, if any, should be paid to the plaintiffs.
178 Pa. 397Nuss v. Rafsnyder (1896)Reversed
Negligence —Master and servant — Risk of employment. When an employee after having the opportunity of becoming acquainted with the risks of his situation, accepts them, he cannot complain if subsequently injured by such exposure. By contracting for the performance of hazardous duties, he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain. In an action by a workman against the owner of a building to recover damages for personal injuries alleged to have been caused by a defective scaffold, it appeared that plaintiff knew the scaffold differed in construction from other scaffolds on which he had worked. He worked on it with a fellow workman on a Saturday, and men observed that it appeared loose and it rocked up and down. Plaintiff’s fellow workman complained to the defendant of the condition of the scaffold, and the defendant said in plaintiff’s presence that he was sorry, but made no promise to repair the scaffold. On the following Monday plaintiff resumed work on the scaffold, noticing at the time that there had been no change in its condition since he left it on Saturday. While the plaintiff was at work (he scaffold broke, and plaintiff was injured. Held, that the plaintiff was guilty of contributory negligence, and not entitled to recover.
178 Pa. 401Sopherstein v. Bertels (1896)Affirmed
Appeal, No. 81, July T., 1895, by defendant, from judgment of C. P. Luzerne Co., October T., 1892, No. 216, on verdict for plaintiff. Trespass for personal injuries. Before Rice, P. J. At the trial it appeared that the plaintiff was injured on January 8, 1892, while operating a tin stamping press in the defendant’s factory in Wilkes-Barre. His work was to stamp what are called bottles which serve as covers for dinner pails.
178 Pa. 409Commonwealth v. Shaffer (1896)Affirmed
Appeal, No. 462, Jan. T., 1896, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1895, No. 283, on verdict of guilty of murder in the first degree. Indictment for murder. Before Bennett, J. At the trial it appeared that on October 28, 1894, a building occupied by a number of Hungarians was blown to atoms by dynamite' set off by an arrangement of wires leading from an electric battery, and four persons were killed.
178 Pa. 416In re Estate of Martin (1896)Reversed
Will — Legacy—Condition. Testatrix charged a legacy to her grandson on a farm which she gave to her daughter, and directed that it should “ be paid to him personally when he shall come for it, but should he never come for it, then I direct it to be,divided among my other legatees equally.” At the time the will was made the grandson had removed to the West, and testatrix had heard a rumor that he was dead, and was in doubt whether he was living. Five months after testatrix’s death the grandson came from California to Pennsylvania and demanded payment from the daughter to whom the farm had been devised, and from the administrator c. t. a. of the testatrix. Neither the administrator nor the daughter had funds to pay him. He then sold and assigned the legacy to S., and returned to his home. Subsequently tjie land upon which the legacy had been charged was sold. Held, (1) that the grandson had sufficiently complied with the requirements of the will by making the demand which he did for the payment of the legacy; (2) that after such demand his right to the legacy became fixed; (8) that a good title to the legacy passed by the assignment. Stover’s Appeal, 77 Pa. 282, distinguished.
178 Pa. 420Caldwell v. Snyder (1896)Reversed
Will — Partition—Conversion—Advancements. Where parties bold property in common the right of partition exists without regard to its difficulties. Testator after providing for his wife and giving a legacy to a son provided that all the rest and residue of his estate, real and personal arid ' mixed, should be equally divided between his children, subject to deduction from “ their share ” of specified advancements. lie also directed his “ executors to sell or lease any or all of my real estate at any time that it may be advisable, and by the agreement of my wife and a majority of my heirs.” Held, that one of the devisees under the will had a right to demand partition of the real estate notwithstanding the power to sell ' given to the executors. Baum’s App., 4 Penny. 25, distinguished.
178 Pa. 424McClane v. Peoples Light & Heat Co. (1896)Affirmed
Lease — Oil andgas lease — Evidence—Question for jury. In an action to recover rentals under an oil and gas lease, the defendant claimed that the plaintiff had reduced the rental in consideration of the defendant continuing to operate the well'. Plaintiff admitted that he had offered to reduce the .rental $50.00 per annum, and no more, but that this offer was rejected. He denied that he had agreed in any general way to reduce the rental, but admitted that he had said he would rather reduce the rental than have the well pulled. Held, (1) that as this raised a disputed question of fact, as to which the testimony was all verbal, it was for the jury to determine from the conflicting testimony whether there had been an agreement to reduce the rental; (2) that a judgment and verdict for the plaintiff for the full amount of the rental provided by the lease would not be disturbed by the Supreme Court.
178 Pa. 429Ralston v. Truesdell (1896)Affirmed
178 Pa. 439Aufderheide v. Schroeder (1896)Affirmed
Appeal, No. 68, Oct. T., 1896, by defendants, from decree of C. P. No. 1, Allegheny Oo, March T., 1896, No. 3, on bill in equity. Bill in equity for a decree to permit complainant to sell real estate, to pay notes for which the title was held as security. From the pleadings and proof it appeared that on July 5,1892, John Frederick Schroeder conveyed to John H. Aufderheide certain real estate in the city of Pittsburg; the deed containing the following provisions: “Whereas said John H. Aufderheide has endorsed sundry note's for said John F.’ Shroeder, and now held by Fifth Avenue Bank of Pittsburg, and in the aggregate amounting to seven thousand (17,000) dollars. And whereas said Aufderheide contemplates the endorsement of sundry other notes for said Schroeder in renewal or extension of same. Witnesseth that this conveyance is made to said Aufderheide in trust for the following uses and purposes and no others, viz : That until said notes have been all paid or default has been made in any one or more of them, said Schroeder shall have the use and occupancy of said property, said Schroeder to pay all taxes, insurance and repairs thereon, and upon his failure to pay or procure the renewal or extension of any one or more of said notes at anytime, said Aufderheide shall sell the said property herein described on such terms and to such persons and at such price as he may think best, and apply the money, after deducting all expenses, to the payment of all unpaid notes, whether due or not, endorsed by said Aufderheide for said Schroeder, and pay the balance, if any, to said Schroeder. Upon the payment of all of ■ said notes endorsed by said Aufderheide, said Aufderbeide shall reconvey said property herein described to said Schroeder or his heirs.” On October 12, 1895, Schroeder made a deed of voluntary assignment of all his property, including the house and lot conveyed to Aufderheide, to S. A. Will Esq., for the benefit of his creditors. Prior to the delivery of said deed of voluntary assignment, judgments were entered against said Schroeder in the courts of common pleas of Allegheny county, which were liens upon all his real estate in said county at the time said assignment was made, in favor of the following parties, viz : F. Schmunk, $2,635; Third National Bank of Pittsburg, $3,350; E. R. Hawkins & Co., $534.25; Alburger, Stoer & Co., $2,199.60, and $1,118, respectively, and John B. Ellison & Sons, $2,362.33. The testimony showed that in July, 1892, Shroeder defaulted in the payment of two notes, one for $2,500 and the other for $1,300, which Aufderheide then paid. In December, 1892, new notes were given which were claimed to be renewals of the notes paid in July. These notes were subsequently renewed by another note for $4,000 dated July 15, 1895, and maturing November 18, 1895. Schroeder failed to pay this note, and on December 4, 1895, Aufderheide filed this bill praying the court to decree that Schroeder had made default in paying said note, or in procuring its renewal or extension; that the amount, which he be allowed to collect from said property, be fixed, and that he be authorized to sell said property and apply the proceeds, after the payxnent of costs and expenses of the proceedings, and the amount due him as indorser on said notes, to S. A. Will, assignee of Shroeder, or to such of his creditors as might be entitled thereto. ■ To this bill the appellants filed an answer admitting all the averments of the bill, except the amount alleged to be due, demanding proof that the proceeds of sale of said property should be applied to the notes referred to in said bill, which in no event can exceed $7,000, and averring that all moneys realized from said property, except so much thereof as might be applied to the payment of such notes as might be shown to be within the terms of the trust, taxes unpaid and costs, should be applied to the aforesaid judgments, in the order in which the same had been entered. The court filed the following opinion: 1. That the plaintiff is only entitled to sell for such indorsements, renewals, and extensions of notes held by the Fifth Avenue Bank, of Pittsburg, as shall not exceed the sum of $7,000. 2. The amount now due on said indorsements, renewals and extensions is $7,000, to which interest must he added, viz: $1,470, making the whole sum now due $8,470. 3. That the allegations in the fourth paragraph of plaintiff’s bill, setting out the list of judgments against Schroeder, and the dates thereof, are true. 4. That on October 12, 1895, Schroeder made a deed of voluntary assignment, including the property conveyed in the deed in this bill, to S. A. Will, Esq., for the benefit of creditors. 5. That the said Schroeder has failed to pay or procure the extension of a certain promissory note for $4,000, upon which the plaintiff is indorser, which note came due on the 18th day of November, 1895 ; and said note was duly protested for nonpayment. Said note is a note given in renewal, or extension of another note or notes constituting a portion of said notes amounting to $7,000, named in said deed to plaintiff. 6. That said Schroeder is now in possession of the lot or piece of ground described in plaintiff’s bill, and has made default in the payment of the second instalment of city taxes thereon for the year 1895, due in September, 1895, amounting to the sum of $62.85. It follows therefore from the finding of these facts that the plaintiff is entitled to exercise the power of sale of the real estate described in his deed, according to its provision. Let a decree be drawn up in accord with these findings and submitted to counsel. A counsel fee of $100 is allowed. We also think the plaintiff should be allowed to bid at his sale of the property, and it is so ordered. A decree was entered in accordance with the opinion. Errors assigned were (1, 2) the first and second findings of facts; (3) the finding that the note of $4,000, maturing November 18, 1895, had been given in renewal or extension of another note or notes, constituting a portion of the notes amounting to $7,000 named in the deed of trust; (4) in allowing a counsel fee of $100 dollars; (5) decree of the court. The notes given in December were not renewals of the notes paid in July, and complainant is therefore not entitled to have them included among those which are to be paid from the proceeds of the sale. Our position is, first, that a note being merely an evidence of indebtedness, a renewal of the debt some months after its maturity by taking notes for identically the same amount, with identically the same security, is as much a renewal or extension of the notes as if the new notes had been made the day of the maturity of the old. Second, that if the court should not hold this view to be correct, but should hold the payment of an overdue note by the indorser to be a satisfaction and extinguishment of the debt, it will not affect our right to recover the amount because, if Aufderheide paid the $1,300 and the $2,500 notes after they became due, as the uncontradicted testimony shows he did, the event had then happened which gave Mm a right to sell the property; and having a right to sell it he had a right to retain the amount of all notes then extant and indorsed by him, as well as the amount of the ones paid by him, out of the proceeds of the sale, amounting admittedly to a larger sum than the $7,000 named in the deed, viz : to the sum of $8,800.
178 Pa. 444Harrington v. Florence Oil Co. (1896)Affirmed
Appeal, No. 74, Oct. T., 1896, by defendant, from decree of C. P. No. 8, Allegheny Co., Aug. T., 1896, No. 449, on billin equity. Bill in equity for an account. The case was referred to John G. MacConnell, .Esq., who reported as follows: On February 25, 1892, the firm of Friday, Keil & Company and Harrington Brothers entered into the following contract, the same having been printed and signed, as follows, on behalf of the plaintiffs, “ Friday, Keil & Co.,” and on behalf of the defendant, “ Harrington Brothers.” “ This memorandum, made the 25th day of February, A. D. 1892, between Friday, Keil & Company, of Pittsburg, Pennsylvania, as parties of the first part, and Harrington Bros., of Washington, Pa., as parties of the second part, witnesseth: “ That whereas, The parties of the first part are the owners of a certain lease for oil and gas purposes, made February 19, 1892, by James R. Kelso, guardian of Arthur Robb, et al., to C. B. Shaffer and J. T. Keil, of a certain tract of land situate in South Fayette township, Allegheny county, bounded on the north by lands of F. Mankedick; on the east by lands of Benjamin Kelso; on the south by lands of Mrs. Campbell, and on the west by lands of James McEwen, containing seventy-six and one half acres, subject to certain rents or royalties, and upon terms and conditions in said lease set forth. And whereas, The parties of the second part are willing to drill and complete a well on said premises for an interest in said lease. “ Now it is agreed as follows, to wit: “ 1. The parties of the second part agree that they will commence forthwith and at their own cost and expense proceed continuously with diligence and without delay, to erect a derrick and drill, finish and complete a well, in good producing order and condition, in manner as wells are usually completed in good producing condition in that vicinity. In case the well so to be drilled shall be a producing well, the parties of the second part shall also, at their cost and expense, furnish and set up such tankage as may be needed for the successful operation of said well. “ 2. Upon the said well being completed and put in good producing order and condition as before provided, the parties of the first part agree to transfer, set over and assign unto the parties of the second part, an undivided one-sixth of the lessee’s interest in the said lease, under and subject to the terms and conditions thereof. It is understood that tubing and sucker rods necessary to pump said well, the cost of same shall be borne by the parties in interest in proportion to their respective holdings. “ 3. If the well so to be drilled be a paying well, the derrick, engine, boiler, casing, tubing, tankage, and everything used in and about the operation of said well shall belong to the parties hereto as if part of the said leasehold; that is to say, the parties of the first part shall have a five-sixth interest therein, and the parties of the second part shall have a one-sixth interest therein; but if the said well be not a paying well, the property above mentioned and used in and about the completion of said well, shall belong to the parties of the second part. “4. If any controversy arises in relation to the drilling through the coal on said premises, the parties of the second part shall not be required to pay any part of the expenses incurred in the settlement thereof. “ 5. After the completion of the first well all expenses incurred in developing or operating upon said premises by the parties hereto, shall be borne by them in proportion to their respective interests, and the parties of the second part are to have the first opportunity of taking contracts for drilling wells, provided they will contract on as reasonable terms as other reliable contractors.” The defendant in its answer admits the following facts to be true, viz: (a) February 19,1892, James R. Kelso, guardian of Arthur Robb et al., entered into a written contract with C. B. Shaffer and J. T. Keil, for a certain tract of land situate in South Fayette township, Allegheny county, Pennsylvania, containing seventy-six and one half acres, for oil and gas purposes. (5) This leasehold was on February 25, 1892, assigned and transferred to William J. Friday, J. T. Keil et al., composing the firm of Friday, Keil & Co. (<?) On the same day, Friday, Keil & Co. entered into a contract with the plaintiffs, to drill, complete and put in satisfactory producing order, a well upon said leasehold; said well was completed and accepted in pursuance of said agreements, and the plaintiffs in consideration of the performance of the said contract on their part, had assigned to them an undivided one sixth interest in said leasehold. (d) Having thus become interested in said leasehold to the extent of a one sixth interest therein, after the completion of the first well, all expenses incurred in developing or operating said leasehold should be borne by them (plaintiffs and defendant) in proportion to their respective interests; that is, the defendant should bear five sixths interest of the same, and plaintiffs a one sixth interest of the same, (e) The plaintiffs should have the first opportunity of taking contracts for drilling wells on said leasehold premises, provided they would contract to drill the same on as reasonable terms as other reliable contractors. The master finds as a fact that plaintiffs under this contract drilled upon the leasehold premises in question wells known and designated as “Number One,” “Number Two,” “Number Three,” Number Four,” “Number Five,” “Number Six,” and “ Number Seven.” (/) That subsequently to February 25,1892, Friday, Keil & Go. sold and transferred their interest in said leasehold premises to The Florence Oil Company, a corporation created under the laws of the commonwealth of Pennsylvania, and plaintiffs continued to drill wells upon said leasehold premises for said corporation under the agreement of February 25, 1892, made with Friday, Keil & Co. Between the 4th and 15th days of July, 1892, plaintiffs commenced to drill well “ Number Six,” on said leasehold premises. Being located in the “ McDonald Field,” wells drilled in this field had to be drilled through the coal measure. In this case, as in the majority of the farms in this particular field, the coal measures had been sold by the owners of the farm, and had become vested in other parties, who were working the same. Owing to the fact that there was at this time a pending and undetermined conflict between the owners of the coal and the operators, as to the rights of the owners of the surface and the underlying strata below the coal and the oil operators as to their right to drill through the coal, the oil operators, in drilling their wells in this district, commenced the “ spudding ” of a well of a diameter of thirteen (18) inches, and drilled it this size to below the coal, so that a ten (10) inch casing could be put in the well to some point sufficiently far enough below the coal, so as to protect, in so far as they could, the coal workings from injury by leakings of oil into the same, or escape of gas into the mines, and jeopardizing the lives and limbs of the miners working therein, as well as the mine itself. After drilling through the coal, the diameter of the well was reduced to ten inches, and was drilled of this diameter to the depth of about seven hundred feet, or what is known by those engaged in drilling wells in this district as the “ hurry up sand.” From the evidence it appears that between the point when the thirteen inch casing stopped and the bottom of the “ hurry up sand,” there was neither cave nor water to any extent found, and therefore no necessity for putting in an eight and a quarter inch casing. From the bottom of the “hurry up sand,” the diameter of the well was reduced to eight inches, and this well “ Number Six ” was drilled that diameter to the distance of one thousand two hundred and eighty feet from the surface. Having gone this distance it became necessary to put in the six and a quarter inch casing, for the purpose of casing off the water, etc. Having reached this point in drilling the well, and it being necessary to case the well, plaintiffs called upon defendant to furnish the necessary casing. This was early in August, 1892. Casing was placed by defendant near the well, and plaintiffs commenced lowering it into the well, and continued to do so until all the casing furnished by defendant had been used, when it was found that there was lacking from one hundred and seventy to two hundred feet of casing. Plaintiffs swung the casing already lowered, and whilst waiting for additional casing, that portion of the well became fastened, and being unable to either raise or lower it, the well had to be and was abandoned. It is under this state of facts that the present contention arose. The testimony bearing upon the furnishing of the casing is as follows: [The master here quotes testimony covering eight pages of appellants’ paper-book. As exceptions were taken to his findings of fact, only its extreme length excludes it.] Under this testimony I am requested by plaintiffs to find a certain state of facts, and the defendant requests me to find a certain other state of facts. Before citing the different requests, I may state that the requests of the defendant appear to the mind of the master to raise a mixed question of law and fact. For this reason I shall determine the requests of the plaintiffs, as they more clearly raise questions of fact. In so far as my findings of fact are in favor of the plaintiffs, they naturally affect the requests of defendant in so far as those facts are concerned. From the weight of the testimony offered and presented to me, I find the following facts, viz: “1. That defendant assumed the obligation to supply the six and one quarter inch casing for well No. 6, and have it at the well in sufficient quantities when wanted.” From the wording of the contract and the evidence, I find this request in favor of the plaintiffs. “ 2. That the defendant failed to comply with this undertaking.” The weight of the evidence shows that the defendant failed to furnish six and one quarter inch casing, after notice, in sufficient quantities to case off the salt water; and upon notice of such deficiency, some five or six hours thereafter, furnished some three hundred feet of new casing. “ 3. That for the want of sufficient supply of said casing at the said well when needed, the said well was lost or destroyed, and an abandonment thereof became unavoidable; that, in consequence of such abandonment, the plaintiffs were compelled to pay, and did pay, the sum of $2,449.40.” It is evident from the testimony that a sufficient supply of six and one quarter inch casing had not been supplied by the defendant to plaintiffs to permit them to case off the salt water draining into well No. 6. As the fact whether the well was lost or destroyed and an abandonment thereof became unavoidable, does not depend entirely upon tins one act, but a question of contributory negligence (if I may so call it) on the part of the plaintiffs, arises from the fact that, when they found that a sufficient amount of casing had not. been furnished by defendant, whether they were justified in permitting the one thousand one hundred feet of casing to swing in the well knowing the well to be in what is known as caving territory. In the judgment of the master, the defendant under its contract, knowing the depth at which oil was obtained in this (the McDonald) field, and the known sands through which the wells had to be drilled, and this being the sixth well drilled on this lease by plaintiffs for defendant, it was a duty incumbent upon defendant through its officers to furnish six and one quarter inch casing, after notice of the need of same, and in sufficient quantities to case off the salt water-encountered. Plaintiffs having proceeded under the usual mode to string and lower the casing furnished them, when they found' there was a deficiency in the number of feet of casing for the" purpose of casing the well to the depth required, and having given notice to the farm boss of defendant of such deficiency, I find as a fact that plaintiffs’ swinging the one thousand one-hundred feet of casing already lowered in this well upon the elevators, awaiting the arrival of additional casing, was not negligence on their part; the testimony shows the caving in thi's field to be in or near what is known as the salts, and by reason of plaintiffs being compelled to wait for this additional casing, said well No. 6 was lost or destroyed, and an abandonment thereof became unavoidable, but the loss or cost of the drilling of said well should not be charged wholly upon the plaintiffs. As to the amount of such loss, my finding in relation thereto is made in another part of my report. “ 4. That the weight of the evidence tends to show that the plaintiffs were not in fault because they allowed the said casing to remain in well No. 6 while waiting for more to finish it to the depth to which it had been bored.” I find this request to be true. The evidence shows that plaintiffs, after discovering that a sufficient amount of casing had not been furnished, gave notice without delay to the farm boss of such deficiency, and then did that which, in their judgment as drillers of oil wells, was the best for the parties in interest; the bottom of the string of casing lowered by them into this well being above the caving place, no fault can be attributed to them for the sticking of the casing. “ 5. Prior to the boring of No. 6, the plaintiffs were requested by the duly authorized agents of the defendant not to use eight and a quarter inch casing when it could be dispensed with in the judgment of the plaintiffs.” I find this request to be true. Dale Schafer, the defendant’s farm boss, testifies that he made this request. “ 6. That in dispensing with the said eight and a quarter inch casing in said well No. 6, the plaintiffs exercised their judgment in good faith.” I find as a fact, that the plaintiffs were not at fault in not using eight and a quarter inch casing, as from the testimony it appears such casing was not necessary in this well No. 6. The defendant’s requests being, in my judgment, mixed questions of law and fact, I give them here, but determine them in my conclusions of law. “ The bill alleges a contract of the plaintiffs to drill, complete and put in satisfactory producing order, a well; that this contract was performed; that in consideration thereof the plaintiffs received a one sixth interest in the leasehold; that they subsequently drilled upon the leasehold other wells which were accepted and paid for; that agreeably to their contract, they undertook to complete abandoned well No. 6, which was drilled to a depth of one thousand two hundred and eighty feet, but was destroyed, as plaintiffs allege, by reason of the default of the defendant.” And, in support thereof, alleges as follows: “ 1. As the loss of the well resulted from the casing becoming stuck, the defendant is not liable unless that accident was the natural and probable result of the delay in furnishing the casing, and one which might reasonably be supposed to have entered into the contemplation of the parties when the contract was made. “ 2. If the sticldng of the casing and consequent loss of the well was a probable and natural consequence of the delay in furnishing the casing, and one which might reasonably be supposed to have entered into the contemplation of the parties when the contract was made, then the defendant is not liable, because such consequence, if natural and probable and foreseen, could have been prevented by the plaintiffs in pulling the casing pending the delay, beyond the place where the rock was liable to cave.” CONCLUSIONS OK LAW. The contract between the parties provided that plaintiffs should at their cost and expense erect a derrick, and drill, finish and complete a well in good producing order and condition, in manner as wells are usually completed in good producing condition in that vicinity. In case the well was a producing ope, plaintiffs, at their cost and expense, were to furnish and set up tankage as might be needed for the successful operation of said well. . If the well was a paying one, the derrick, engine, boiler, casing, tubing, tankage, and everything used in and about the operation of said well, was to belong to the parties to the contract as if part of the leasehold, when the interest in the leasehold was to be owned by the parties respectively in the following proportions: defendant five sixths interest therein, and plaintiffs one sixth interest therein. The well when completed was a good producing one. The plaintiffs having furnished all the machinery and material necessary to drill this well, the contract was then completed between the parties, and the consideration being the one named in the contract, plaintiffs were entitled to have the one sixth interest in said leasehold assigned and transferred to them. This was done, and they became tenants in common with the defendant in the leasehold in the proportions agreed upon. Under this agreement, plaintiffs had the first opportunity of taking contracts for drilling other wells upon this leasehold “ provided they contracted to drill the same on as reasonable terms as any other rehable contractor.” It is evident that as the first well was a venture, defendant did not care to take upon itself the cost and expense of said venture, but sought out some one who would take tins risk. Plaintiffs assumed the risk. The venture was successful, and the contract was performed. The assignment of the one sixth interest in the leasehold to plaintiffs by defendant paid the consideration. After that had been done, there was nothing further to be done thereunder, excepting the privilege that plaintiffs might “ have the first opportunity of taking contracts for drilling wells, provided they will contract on as reasonable terms as other reliable contractors.” Under the agreement to give the privilege of drilling the remaining wells on this leasehold, plaintiffs were to have the first opportunity to bid for the drilling of said wells under certain conditions, but the defendant most certainly reserved the right to refuse to accept such bid, or bids, or enter into a contract or contracts with the plaintiffs for this purpose, unless plaintiffs would contract to drill such wells on as reasonable terms as other reliable contractors might bid to do the same work for. It is fair to assume, under this clause of the contract, that plaintiffs did make such bids for the additional wells (for they drilled in all seven wells upon the lease) and that such bids were on as reasonable terms as bids of other reliable contractors. Therefore, the drilling of each well stood upon the terms agreed upon at the time such letting was made by defendant, and the contract of February 25,1892, has no bearing upon the drilling of any of the wells upon this leasehold, excepting the first well, and in so far as the privilege granted plaintiffs to have the first opportunity to bid for the work. The positions “first” and “second” of defendant in support of this position then relate to facts arising from the sticking of the casing in well No. 6. As my findings of the facts in reference thereto (as above set forth) are against the defendant, it would only be a duplication of that part of this report upon the same matter, consequently I dismiss these propositions. The defendant claimed before the master in its argument as follows, viz: that the case was not properly within the jurisdiction of a court of equity, upon the ground that where the real and substantial controversy has relation to a question of an alleged breach of contract and a claim of unliquidated damages resulting therefrom, and when the case involves no real dispute beyond this, a court of equity has no jurisdiction. There is no doubt, as a bald proposition of law, it is correct, and the plaintiff would be required to look to an action at law for his remedy, if the law furnished him with an adequate remedy therefor. It is true that equity, as a general rule, will not assume jurisdiction in every case where an accounting is demanded or needed; nor because the case involves or arises from fraud; nor because a contribution is sought from persons jointly indebted; nor even to recover money held in trust, when an action for money had and received will lie, as well as many other principles which might be cited. It is also true as a rule that the question of want of jurisdiction can be raised at any stage of the proceedings. Let us look for a moment as to how this case appears upon the record and before the master: July, 10, 1892, bill filed. July —, 1892, bill served on defendant. July 14, 1892, defendant causes an appearance to be entered for it. September 29, 1893, defendant files an answer to said bill. October 30,1893, general replication filed. December 2, 1893, master appointed. January 4, 1894, master met pursuant to notice. Parties, plaintiffs and defendant appear. Testimony covering three hundred and forty pages typewritten, taken. Arguments of counsel heard; no demurrer filed. The question of jurisdiction not having been raised by defendant until the argument before the master, I feel that the principle laid down by the Supreme Court in the case of Fidelity Company v. Wetzel, 152 Pa. 502, is safer to follow than to recommend the dismissal of the bill by reason of the turn taken; cost and expense, and merits of the case had been gone into by both parties. Justice Mitchell, in delivering the opinion of the court in the above cited case, says: “ The jurisdiction in equity as to affirmative relief in this case is, to say the least, questionable. The bill charges the receipt by defendant of certain specific sums of money, alleged to be the property of plaintiff’s decedent, followed by the general and vague averment that other sums also came to the defendant’s hands, etc., and then an averment of a demand for an account, and a refusal by the defendant on the ground he had no property of the decedent to account for. ... As the bill however was not demurred to, and the case has been pursued to a final hearing, we do not deem it necessary to dispose of it now on that ground.” In Adams’ Appeal, 113 Pa. 449, Mr. Justice Sterrett, in delivering the opinion of the court, says: “ While it is true that manifest want of jurisdiction in equity 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: Story’s Eq. Jur. sec. 464. As was said in Sunbury & Erie R. R. Co v. Cooper, 33 Pa. 278, if the court in which suit is brought has jurisdiction of the cause of action, both at law and in equity, it may proceed to give relief, unless the bill be demurred to on the ground that the proper remedy is at law.” In Drake v. Lacoe, 157 Pa. 17, the defendant submitted as a matter of law, that the bill was to recover a specific sum of money and could not be sustained. Upon this question tbe master said: “ It is true that under the view taken by the master, the plaintiffs’ bill is practically a bill 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 answered, it might have been sustained; but the defendant having denied the material allegations of the plaintiffs’ bill, and having had a full hearing on the merits, and heavy expense and cost having been incurred, it seems to the master too late to sustain this objection now.” Exceptions (inter alia) were filed by the defendants to this ruling that he had erred in not dismissing the bill. The court sustained the exceptions and dismissed plaintiffs’ bill. Upon an appeal taken to tbe Supreme Court, that court overruled the court below, sustained the master, and entered a decree in favor of plaintiffs for the amount found to be due by the master. A bill will not be dismissed for want of jurisdiction, after reference to a master, involving heavy costs: Edgett v. Douglass, 144 Pa. 95; Evans v. Goodwin, 132 Pa. 136; Adams’ Appeal, supra; Adams v. Beach, 1 Phila. 99. Will an account render lie between tenants in common in Pennsylvania? The statute of 4 Anne, chapter 16, section 27, provides that account render lies between tenants in common without any appointment as bailiff or receiver. 1 Am. & Eng. Ency. of Law, p. 130. This statute was enacted by, and still is in force in, this commonwealth: Roberts’ Digest of British Statutes; Norris v. Gould, 15 W. N. C. 187. The act of October 13, 1840, section 19, Purdon’s Digest, ed. 1885, p. 692, expressly provides that courts shall have “ the powers and jurisdiction of courts of chancery in settling .... such account and claims as by the common law and usages of this commonwealth have been settled by the action of account render,” (and the plaintiff may) “ proceed either by bill in chancery,or at common law.” “Under act- October 13,1840, courts of equity have concurrent jurisdiction with courts of law in all cases where an action of account render would lie: ” Reeside v. Reeside, 49 Pa. 322; Frisbee’s Appeal, 88 Pa. 146; Adams’ Appeal, 113 Pa. 449; Norris v. Gould, supra. “ And it may be said in general that in all cases where an action of account render would be the proper remedy, the jurisdiction of equity is undoubted: ” Baker v. Biddle, Baldwin (U. S.), 394. “ While account render -will not lie by one tenant in common against another for mere occupation of the property held in common, yet it does lie where one tenant in common receives the money or something else from another person to which both tenants are entitled: ” Norris v. Gould, supra. The reason is the tenant cannot be charged even by implication as bailiff or receiver when he has received nothing, which is the case when he merely occupies the common freehold. “ In determining whether assumpsit or account render or a bill in equity is proper, the question is not, as it is sometimes supposed, whether the jury can as conveniently settle the account as auditors, but it adheres to the right of the defendant to render his account before he can be molested by an action to refund. And where the duty is not direct, but one of outlay in business which, from its nature, requires an exhibit of the sums expended before the duty can arise, the legal requirement is to render an account, and assumpsit will not lie until the balance be ascertained. The right to render an account and settle exists in the very nature and equity of such a duty: ” Reeside v. Reeside, supra. Notwithstanding the right to raise the question of jurisdiction at any stage of the proceedings, and notwithstanding the view of the master that, if a demurrer had been filed by defendant it might have been sustained, defendant having availed itself of its right to file an answer, by which the parties were put to their proofs upon the merits of the case, entailing lieavj’- expense and costs, and having proceeded to final argument of the case before the master, before raising this question, and believing that substantial justice can be done the parties upon the merits of the case, the master declines to recommend a dismissal of the bill upon this ground, believing that the authorities cited are ample in justifying this ruling. Under the act of 4 Anne, chapter 15, and in force in this commonwealth, the provisions of the act of October 14, 1840, and the act of June 15,1840, relating to the equity jurisdiction of the courts of this commonwealth, the master rules that a bill in equity of this character will lie for an account render. In this ease it is true that each party ran their own share of the oil to their own credit and sold the same. If each party had kept account of their share of the expenses of the operation upon the lease, then possibly there might have been some claim that no such accounting could be required. The defendant, however, undertook to keep the accounts pertaining to this leasehold, charging all expenses to it, and carried the same upon its books under the head of “ Robb Lease Acct.” It furnishes exhibits from its books showing this account, as well as statements showing expenses of “Robb Lease” from March 28,1892, to November 1,1892, also statements of credits to “Robb Lease” between June 29, 1892, and November 3,1892, and Harrington Bros, in account with Florence Oil Cd. The defendant made all purchases connected with and pertaining to the lease, kept accounts of the same, paid the bills while the plaintiffs were at work in the field drilling the wells, and furnished plaintiffs statements from time to time deducting plaintiffs’ proportion of said expenses from their drilling account. Under this state of facts, it appears to the mind of the master that this is a case where a bill for account render would prevail; and under the foregoing cited acts of assembly and authorities, as master, I conclude as a question of law, that equity has jurisdiction in this case to compel an accounting, and therefore, upon this ground also, overrule defendant’s request to dismiss the bill for want of jurisdiction upon this point. Independently of the act of October 18, 1840, supra, the equity powers conferred by the act of June 13,1840, section 49, extend the equity jurisdiction of the courts of this commonwealth “ to all cases over which courts of chancery entertain jurisdiction on the grounds of fraud, accident, mistake or account.” The bill in the seventh clause, charges “ that the accounts between your orators (plaintiffs) and the defendant as tenants in common of the said leasehold, remain unsettled, and that the defendant claims compensation from your orators for their share of expense of caring for the wells on said leasehold, so as aforesaid drilled and completed (winch your orators are willing to pay so far as the same is just and lawful), pray,” etc. And the answer “ that the share of the plaintiffs of the expense of operating the said leasehold was deducted from time to time, in settlements made for drilling done by them,” tends strongly to show an agency, a fiduciary relation existing on the part of defendant to the plaintiffs; most certainly, with relation to the cost and expense of operating the leasehold, and for this reason I hold as a matter of law that plaintiffs are entitled to an accounting. The master is of the opinion that the plaintiffs and defendant should bear the loss of well No. 6 in proportion to their interests in said leasehold; that is, plaintiffs should bear the one sixth part thereof, and defendant the five sixth part thereof. The court dismissed exceptions to the master’s report, and entered a decree that defendant pay the plaintiffs the sum of $2,456.03. Defendant appealed. Error assigned, among others, was decree of the court. The court had no jurisdiction : Searight v. Carlisle Deposit Bank, 162 Pa. 505; Silvis v. Clous, 1 Pa. Superior Ct. 41. The undisputed facts are that the well was lost because the casing became fast in it; that the casing became fast because the rock caved in around it and fastened it; and that the defendant did nothing to cause the rock to cave. That proceeded from a natural cause, without its act or intervention. It was the proximate cause of the loss or injury, produced in a natural and continuous sequence, unbroken by any efficient intervening cause, and without which the result would not have happened: St. Louis etc. R. R. Co. v. Commercial Union Ins. Co., 139 U. S. 223; Morrison v. Davis & Co., 20 Pa. 171; R. R. v. Reeves, 10 Wall. 176; Hoadley v. Transportation Co., 115 Mass. 304; Dubuque Wood & Coal Association v. County of Dubuque, 30 Iowa, 176; Daniels v. Ballantine, 23 Ohio, 532; Billmeyer v. Wagner, 91 Pa. 92; Hadley v. Baxendale, 9 Exch. 341; Griffin v. Colver, 16 N. Y. 489. The loss might have been prevented if it was or could have been foreseen: 1 Sedgwick on Damages, 164-5; Penna. R. R. v. Plank Road Co., 71 Pa. 350. Martin v. Railway Co., 5 Ark. 510, was similar to the case of St. Louis etc. R. R. Co. v. Commercial Union Ins. Co., 139 U. S. 223, and the ruling was based on the same reason. In James v. James, 58 Ark. 157, it appeared that certain cotton was burned at a gin after the ginner had broken his contract to gin the cotton by a certain time. He was held not to be liable. Upon the question of jurisdiction the plaintiffs contend, that a party cannot involve his opponent in a long and costly hearing, in which several hundred pages of testimony are taken (in this cause three hundred and forty), and when the cause is being summed up before the master, and he finds himself worsted, spring an objection to the jurisdiction which, if tenable, might have been raised in limine: Adams’s App., 113 Pa. 449; Evans v. Goodwin, 132 Pa. 136; Edgett v. Douglass, 144 Pa. 95; Fidelity Co. v. Weitzel, 152 Pa. 502; Drake v. Lacoe, 157 Pa. 17; Searight v. Bank, 162 Pa. 504; Niles v. Williams, 24 Conn. 284; Ludlow v. Simond, 2 Caines Cases (N. Y.) 1; Nicholson v. Pim, 5 Ohio St. 31. As the parties having these mutual dealings were tenants in common,'the master determined that, under the statute of 4 Anne, eh. 16, sec. 27 (which is in force in Pennsylvania), account render would lie between them. This being the law, the act of October 13, 1840, sec. 19, P. L. 7 (Purd. Dig. 1885, p. 692), comes into play, and the plaintiffs may “proceed either by bill in chancery or the common law action of account render.” And hence it has been repeatedly decided that courts of equity have concurrent jurisdiction with courts of law in all cases where account render would be an appropriate remedy: Reeside v. Reeside, 49 Pa. 322; Bierbower’s App., 107 Pa. 14; Brush Electric Co.’s App., 114 Pa. 585; Kirkpatrick v. McDonald, 11 Pa. 387; Johnson v. Price, 172 Pa. 427. Where two tenants in common are charged (as in this case) with the duty of paying for the development of the territory held in common, each one is primarily liable to contribute his share of the cost; and if either tenant denies liability, he must be in a position to put the responsibility for the entire expense upon his cotenant.
178 Pa. 460In re Estate of Noble (1896)Affirmed
Appeal, No. 101, Oct. T., 1896, by James H. Irwin from decree of O. C. Allegheny Co., Feb. T., 1896, No. 48, surcharging him as guardian. Exceptions to guardian’s account. From the record it appeared that J. H. Irwin was appointed guardian of the minor children of John Noble, deceased, on March 22, 1884. One of these minors, Mary E. Noble, arrived at her majority October 2, 1895, and on January 3, 1896, appellant filed his account as her guardian. The estate of the ward consisted of $5,000 paid appellant July 7,1884, and $2,290 paid him February 4, 1886. The guardian testified that he had invested the funds, with moneys of his own, in six per cent mortgages. A mortgage known as the Kirkpatrick mortgage, for $3,720, assigned to the ward in the year 1888, was paid May 15, 1895, and another, known as the Creese mortgage, was assigned and foreclosed shortly after its assignment, and the real estate covered thereby purchased by the appellant. When the minor arrived at full age she was given option to take this property at $200 less than cost to the guardian, or the amount of her mortgage, and she chose the latter. There was no proof or allegation that the guardian had in any way derived any personal benefit or advantage from the custody or use of the ward’s money, but, on the contrary, his testimony was that the purchase of the Creese farm was a loss to him, and he had in his account charged himself with more interest than he received. After deducting therefrom attorney’s fees, moneys paid for maintenance, costs of appointment and accountants’ commissions, the guardian charged himself with interest on the $5,000 paid him July 7, 1884, and the $2,920 paid February 4, 1886, from six months after the receipt thereof, until October 21,1895, when the appellee arrived at full age, deducting from the interest total the sum of $111, interest on the Kirkpatrick mortgage for $3,720, paid May 15, 1895, and held uninvested until the ward’s majority. Hawkins, P. J., filed the following opinion: 1. It is essential to the safe and orderly administration of trusts, not only that investments should be in the securities prescribed by law, but that a visible impress of the trust should be stamped upon them, for the obvious reason that every departure from the prescribed course must give enlarged scope to incompetency and rascality, and gratuitously introduce an element- of hazard and uncertainty, which must add complication to settlement, and impose unnecessary burden upon the cestui que trust. Investments in the mode prescribed by law imply safety and furnish a ready means of settlement; whereas mingling trustee’s individual money with the trust funds always raises embarrassing difficulties in tracing them. In many cases, such as investment in trade, or in speculation, these difficulties are insurmountable; in all of them the cestui que trust is put at the disadvantage of making investigation; the assets are subjected to the risk of reprisal by the trustee’s creditors ; and the trustee is afforded the opportunity of shifting the burden in the event of loss from himself to the trust. This result is in no sense chargeable to the cestui qui trust, for he has no option in the matter, but to the gratuitous act of the trustee outside of the course prescribed by law. A rule applicable to the administration of every trust is that any departure from the ordinary course is at the trustee’s risk. The policy of the law is to insure safety, facilitate investigation, and take away from the trustee, as far as possible, the opportunity of abuse. The cestui qui trust may repudiate an unauthorized investment, or elect between profits realized in trade and interest. So on the same principle a bailiff who takes a note or an executor who deposits trust fund in his own name may be held personally responsible: McAllister v. Com., 30 Pa. 536. But where the identity of the fund has been lost by a breach of trust, even the opportunity of election is taken from the cestui que trust. A confusion of goods has taken place, and conversion by the trustee to his own use implied. Such investments were characterized in Morris v. Wallace, 3 Pa. 319, as a “legal fraud, liable to all the consequences as such, without regard to the intention, the integrity of the trustee, or the honesty and good faith of the particular transaction,” and bear interest from the time of conversion. The present guardian brought himself within the reason of this rule; he admittedly mingled the trust fund with his own. True, he claims to’have invested them; but he is unable to produce the securities, or show when the investments were made. The cestui que trust is thus deprived of even the opportunity of election, and is forced to treat the trustee as having assumed the added character of debtor with its incidents. The doctrine of rests, if it be not obsolete, can have no application to such a case, for it is predicated of the fact that no interest had been earned. The evidence here fails to show whether or not interest had been earned; if it was in fact, the cestui que trust was entitled to it and ought not to suffer from the uncertainty resulting from the fault of her trustee: Landis v. Scott, 32 Pa. 503. The six months’ rule of rests invoked by accountant grew' out of the circumstances of its time, but is inapplicable in the present, even in cases of legal investment. “ The time,” said Mr. Justice Woodward, in Witmer’s Appeal, 87 Pa. 120, “should be such as the circumstances of each particular ease would show to be reasonable; ” and was there fixed at two months. But in view of the facility with which trust funds may now be deposited at interest until permanent investment can be had, it is at least questionable whether rests in the ordinary sense should be allowed at all. Because this particular trustee is pecuniarily responsible is no reason why he should escape liability for interest. His cestui que trust was entitled to the securities prescribed by law as well as the personal responsibility of her trustee, and to the enjoyment of the earning power of the trust estate. His escape will not only work injustice to her, but “ will be taken for a precedent ” which will encourage the already too prevalent and hurtful idea that trustees may convert trust assets to their own use. 2. The complaint made by accountant that he should have been credited with commission on the principal as of the day of its receipt has no merit. Such compensation is made for active services and responsibility in collection and investment; while here the guardian’s services were formal in character. The services required were mainly legal, and for these his attorney has been liberally paid ; and the funds when received by the trustee were not invested in the mode prescribed by law, but mingled with his own: Landis v. Scott, supra. No question was suggested as to the sufficiency of the compensation. 3. Nor has accountant reason to complain that interest was compounded on surplus income. The expenditures which he was authorized to make were fixed by order of court; and rests of three years each were allowed on the income which was not required for that purpose. Had this surplus been realized on authorized securities, good management would have suggested that it should have been invested, rather than allowed to have lain dead; but when it is considered that this surplus fund was mingled with the guardian’s own fund it must be presumed he had the benefit of it, and should account. 4. There was no reason why this accountant should not have returned the admitted balance in his hands after his ward reached her majority; and if, as is clear, she was entitled to it, but was deprived of its use, the guardian should in justice make her compensation. The practice of retention of funds ought, on account of the temptation to use them as an instrument of coercion, to be discouraged if not prohibited. There have been cases in which dependent and helpless relatives have been forced by their necessities to acquiesce in rank injustice. In most cases the fraudulent purpose is incapable of direct proof; and the obvious remedy is to take away the temptation. The court entered a decree in accordance with the opinion. Error assigned was decree of the court. If the guardian is to be treated as holding the character of a debtor with its incidents, we submit he cannot be so treated until an investment is actually made in his own name, and he should not be charged with interest as of prior date, as was done here: Landis v. Scott, 32 Pa. 503; Merrick’s Est., 1 Ash. 205; Worrell’s App., 23 Pa. 50; Huffer’s App., 2 Grant, 341; Witmer’s App., 87 Pa. 123. The guardian could not know in advance what the actual expenditures during the coming year would be, and therefore he should be allowed to retain a reasonable sum for contingencies, according to the rule adopted by the auditor, recognized by the court below, and approved by this court in Norris’ App., 71 Pa. 106. In the absence of proof that the trustee made profit out of the income, the rule is, that he must be charged only with what he ought to have made: Lukens’ App., 47 Pa. 356. The commissions are due when earned, or at the time the services were rendered: Say’s Executors v. Barnes, 4 S. & R. 116; Callaghan v. Hall, 1 S. & R. 241. Interest cannot be allowed on interest: Norris’ App., 71 Pa. 123; Hughes’ App., 53 Pa. 500; Harland’s Account, 5 Rawle, 323; Springer’s Est., 51 Pa. 342; Dietterick v. Heft, 5 Pa. 87; Pennypacker’s App., 41 Pa. 494; Biles’ App., 24 Pa. 335; Robinett’s App., 36 Pa. 174; Foltz’s App., 55 Pa. 428. When a guardian, instead of investing his ward’s money in securities approved by law, uses a portion of it in his own business, or so mingles the same with his own that it is impossible to trace investments, he will be properly surcharged with interest, and the court would be justified in rejecting his entire claim for commission: Mulholland’s Est., 175 Pa. 411; Say’s Executors v. Barnes, 4 S. & R. 112; Copenheffer’s App,, 3 Penny. 243; Yoder’s App., 45 Pa. 394; Hughes’ Minors’ App., 53 Pa. 500; Luken’s App., 7 W. & S. 48.
178 Pa. 465Buchannan v. Supreme Conclave of the Improved Order of Heptasophs (1896)Affirmed
178 Pa. 471Duff v. Peoria Grape Sugar Co. (1896)Affirmed
178 Pa. 477In re Estate of Jeremy (1896)Affirmed
Appeal, No. 191, Oct. T., 1896, by Theodore R. Jeremy, from decree of O. C. Allegheny Co., Nov. T., 1894, No. 82, dismissing exceptions to adjudication. Exceptions to adjudication. The facts appear by the opinion of the lower court which was as follows: By holographic will Mr. Jeremy provided inter alia as follows : “ Third. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my beloved wife líate Jeremy for and during her natural life. “ Fourth. After the death of my wife Kate Jeremy the estate to be held in trust for my two nieces, Bessie and June Jeremy, daughters of my brothers Will M. and Alfred H. Jeremy, share and share alike. To be held in trust until both are of legal age.” , Mr. Jeremy was not learned in the law. He left a widow, Kate Jeremy, since deceased; and one son, who was not mentioned in the will, and who insists that Bessie and June Jeremy have no beneficial interest beyond their majority, and that consequently there was intestacy in respect of the remainder after that event. OPINION. Had this testator’s disposition of his residuary estate'stopped with the words “ share and share alike ” there could have been no doubt but that his nieces would have taken an absolute beneficial interest in the remainder. His declared purpose was to dispose of “ all ” his residuary “ estate,” and therefore of “ all ” that he had both in quantity and quality: Busby v. Busby, 1 Dal. 226. “ I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal,” said testator, “to my beloved wife, Kate Jeremy, for and during hei natural life,” and “ After the death of my wife .... the estate to be held in trust for my two nieces .... share and share alike.” This plainly made a complete disposition of “ all ” the residuary estate. No active trust having been expressly imposed upon the trustees, nor implied after both cestuis que trustent had attained majority, the trust must have become executed, and the legal and equitable estate vested in them. There is no mention of ulterior object, no limitation of the beneficial use intended for these nieces, and no intestacy. Had any limitation been intended there was the appropriate place, and a slight change would have made it, but the clause was left absolute in its terms. Did the testator intend by the following clause to cut down the estate so given to an interest during the minority of both his nieces ? If so, they may never realize any benefit whatever, notwithstanding the testator’s express declaration that the “ estate ” should “ be held ” for them “ after ” his wife’s death; for she might survive the majority of both. The testator cannot be supposed to have intended so glaring an absurdity. While there is no doubt that of two contradictory clauses in a will the first must yield to the second; yet the clearly expressed intent of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testator’s distinctly announced intention: Hiestand v. Meyer, 150 Pa. 501. This testator’s distinctly announced intention in the first instance was, as has been seen, that his widow and nieces should have his whole residuary estate. The purpose of the trust declared for his nieces was simply to point out the mode of holding their estate. Their beneficial interest was not dependent on the trust, but was vested. The trust itself must, by operation of law, have ended at their majority, and their estate became absolute “after” the widow’s death. The following clause, out of which the question here arises, was probably suggested by the afterthought that, on the nieces attaining their majority, they would be capable of taking care of their estate, and there need be no further trust, and was but an expression of what the law would have implied. Giving to the clause a construction most favorable to the heirs, it raises but a bare implication as against an absolute gift to these nieces, and must, in accordance with the well settled rule, yield: Seitz v. Pier, 154 Pa. 467. But even if a limitation of the trust till the majority of the nieces had been incorporated in the first instance, they would, under the authorities, in the absence of a gift over, have taken an absolute beneficial estate in remainder by implication. Thus in Wilks v. Williams, 2 J. & H. (Eng. Chan.) 125, where there was a bequest after a life estate of a residue in trust “ until ” the legatee attain twenty-one years, it was held that an absolute estate passed, and similar language used in Newland v. Shephard, 1 Eden (Eng. Chan.), 194; Read v. Rowell, 1 Eden (Eng. Chan.), 479; Atkinson v. Pierce, 1 Br. C. C. 91, and Hale v. Beck, 2 Eden (Eng. Chan.), 229, was construed in the same way. No Pennsylvania decision exactly in point has been found, but the principle upon which these cases rest, the creation of an absolute estate by implication, has been repeatedly recognized and applied. Thus introductory words have been carried down to the body of the will to show an intent to give an absolute estate: Schriver v. Meyer, 19 Pa. 87, and the absence of a gift over to imply a fee: Dilworth v. Gasky, 131 Pa. 343. So in Busby v. Busby, supra, the principle was recognized that “a giving over on a dying before twenty-one shows an intention that, if the party attain twenty-one, he shall have a -fee simple.” So in Cassell v. Cooke, 8 S. & R. 268, the court said: “ Let any man ask himself this question, what did the testator mean when he said if my son George be removed by death before he be of age, his part shall fall to my two daughters ? His answer most assuredly would be — he intended by these words that if he arrived at that age, he should have the power of disposing of it as he pleased, and if he died without disposition, leaving heirs, it should descend to them; that the limitation over depended on one contingency • — -his death within age. This is not a construction by conjecture, but one arising from the words themselves on the most necessary implication.” In the present case the evidence of intention to give an absolute estate is at least as strong as in the cases cited. There ’ was not only a bequest in trust till majority without any gift over, but this followed a distinctly announced intention on the part of testator to dispose of his whole estate, and words which were admittedly sufficient to carry it. In these circumstances it is apparent that there was no intestacy; and distribution must be made accordingly. Error assigned was decrée of the court. There is nothing in the will which gives rise to any implication of a greater estate in the nieces than an estate for years: Bender v. Dietrick, 7 W. & S. 285. The law looks with great favor upon the heir, and if we are wrong in our position that the words of this will plainly and without ambiguity give but an estate for years to the nieces, and that there is no room whatever for implication that a greater estate was intended for them, and if it should be thought the true construction is a matter of some difficulty, the doubt should be resolved in favor of the appellant: 1 Jarman on Wills, 355; Howe’s App., 126 Pa. 233; Hancock’s App., 112 Pa. 532; Hitchcock v. Hitchcock, 35 Pa. 393; De Silver’s Estate, 142 Pa. 74; Rupp v. Eberly, 79 Pa. 141; Brendlinger v. Brendlinger, 26 Pa. 131.
178 Pa. 481Smith v. Times Publishing Co. (1897)Reversed
Appeal, No. 212, July T., 1895, by defendant, from judgment of C. P. No. 3, Pbila, Co., Sept. T., 1892, No. 549, on verdict for plaintiff. /Sterrett, C. J., and Dean, J., concurred in the decision, but the former also favored sustaining the fourth assignment of >error, and the latter favored reversing on the fourth assignment of error alone, and dissented from so much of the opinion of the court as held the act of May 20, 1891, constitutional. Trespass for libel.
178 Pa. 533City of Philadelphia v. Union Burial Ground Society (1897)Affirmed
Appeal, No. 186, July T., 1895, by defendant, from order of C. P. No. 1, Phila. Co., Dee. T., 1889, No. 605, making absolute a rule for judgment for want of a sufficient affidavit of defense. Scire facias sur municipal claim. The claim was as follows : “ The City of Philadelphia hereby files its claim against all that certain lot or piece of ground used as the Union Burial Ground, situate on the west side of Parker street, extending northward from the north side of Federal street in 2nd ward of City of Philadelphia containing in front or breadth on said Parker street 376 feet of a foot and extending of that width in length or depth westwardly along the north side of Federal street 175 feet 6 inches to east side of Sixth street for work done and materials furnished by said city in laying water pipe in front of said lot in Parker street, and duly assessed and charged as follows to wit,” etc. The affidavit of defense was as follows: James Gillingham being duly affirmed doth say: I am the president of the Union Burial Ground Society of the city and county of Philadelphia, the defendant in the above case. I am advised that the defendant has a just, true and legal defense to the claim filed, the same being of the following nature and character, to wit: The said society was incorporated under the law of the state of Pennsylvania on the 12th day of January, 1828. That according to the articles of incorporation it is provided, inter alia. “Article 11. Each member shall be entitled to one lot and no more, and shall receive a certificate deed for the same, signed by the president, and attested by the secretary of the society, and the seal of the society affixed thereto; and shall have and hold the same as a cemetery or burial place to his or her heirs or assigns forever, and to be used for no other purpose ; but always subject to the constitution and by-laws of the society. “ Art. 12. The form of the certificate deed shall be such as may be prescribed by the by-laws. “Abt. 13. Each member’s lot or cemetery shall be determined by ballot; that is, there, shall be as many tickets made out, numbered and rolled or folded up and put in a box, as there are members, and each member entitled to a lot or his or her proxy draw, and the number that shall be on the ticket so drawn shall be the number of his or her lot; nevertheless, members may from motives of convenience and by mutual consent exchange their lots or cemeteries with each other. “Abt. 16. A map or plan of the whole ground shall be drawn, showing the number and situation of each member’s lot or cemetery; also the order of rows for the portion of ground allotted to for the interment of nonmembers, which map or plan, when approved and adopted by the society, shall remain unalterable forever.” And in pursuance of the power vested in them the society passed the following by-laws: “ abticle n. “ Payments for the Lots of Cemeteries. “ The purchase money for each cemetery or burial place shall be assessed by four instalments, at two dollars and fifty cents for each instalment. The first instalment shall be payable on the first day of November, 1827; the second instalment on the first day of February, 1828; the third instalment on the first day of May, 1828; and the fourth instalment on the first day of August, 1828. This, however, shall not prevent the subscribers from paying from time to time such sum or sums of money to the treasurer, as may be to them convenient, previous to any instalment; such payment shall stand in lieu thereof. Any member failing in the payment of any of the instalments shall forfeit the former payment or payments, and his or her lot or cemetery shall revert back to the society. “ ABTICLE IX. “ Of the Contingent Fund. “ A fund shall be raised to defray the contingent expenses of the society; such as room hire for the meetings, books, paper, blanks, seal, etc., etc.; and to meet such expenditures each member shall pay the sum of fifty cents.” That in pursuance of said constitution the tract of ground against which this lien is filed was immediately after the incorporation laid off in burial lots in accordance with plan hereto annexed to this affidavit and made part hereof, and the same allotted or drawn by the members, and the said lots are now held by the said persons or their heirs or assigns, and are held exclusively for the purpose of burial; that the water pipe laid in said Parker street is of no use to the said burial ground, nor any improvement thereto, as said burial ground now has, and has had for over twenty years past, received water from the water pipes laid on Federal street; that said society is not managed for private or corporate profit, and no portion of said tract of ground is held for private or corporate profit, all of the above lots as above set forth having been conveyed to members for the purpose of burial, in whom the same or their heirs or assigns is now vested. Deponent is further advised that plaintiff cannot maintain the lien for the further reason that the state of Pennsylvania, by act of assembly approved April 27, 1852, P. L. 460, section 16, provided “that the property now owned for the purpose of interment by the .... Union Burial Ground Association be, and the same are hereby exempted from taxation, excepting for state purposes.” That the Union Burial Ground Association referred to in the said act of assembly is this defendant. All of which facts are true, and which defendant expects to be able to prove on the trial of this cause. Error assigned was order making absolute the rule for judgment. Under the statutes a burial ground is on a different footing, so far as regards exemption, from a church: Act of April 16, 1838, P. L. 525; Act of April 27, 1852, P. L. 460; Act of April 5, 1859, P. L. 363; Act of May 12, 1871, P. L. 771; County v. Lehigh Coal & Navigation Co., 75 Pa. 461; Act of May 14, 1874, P. L. 158. The city of Philadelphia in supplying water is exercising the functions of a private corporation and, therefore, technically speaking, a claim filed by it-for water pipe cannot be considered in the nature of a claim conferring a benefit to the property: Broad Street, 165 Pa. 475; Girard Fire Ins. v. Philadelphia, 88 Pa. 393; Western Saving Fund Society v. City, 31 Pa. 175; Wheeler v. City, 77 Pa. 338; Smith v. City, 81 Pa. 38. It is submitted that the decision of the court in Broad Street, 165 Pa. 475, does not apply to this case; but it is governed by Philadelphia v. Church of St. James, 134 Pa. 207, which specifically decided that a lien for water pipe could not be maintained against the defendant. The case of Broad Street, reported in 165 Pa. 475, is a full answer to the appellant’s case so far as it relates to the claim for exemption under the acts of assembly and the constitution of the state of Pennsylvania, cited in appellant’s paper-book. Were it necessary for this case, in view of the decision of the court in Broad Street, supra, to argue that sections 1 and 2, article IX., of the constitution, repealed all special exemptions from taxation, a reference to the line of cases, such as City v. Masonic Home, 160 Pa. 572; Wagner Free Institute v. Philadelphia, 132 Pa. 612; Philadelphia v. Pennsylvania Hospital, 134 Pa. 171, would be sufficient. Under the constitution of the state of Pennsylvania, the legislature may repeal any exemption of property from taxation, contained in a charter since 1857, and such repeal maybe made by general enactment: section 10, article XVI., constitution 1874. A claim for water pipe is a municipal assessment: Phila v. Church of St. James, 134 Pa. 207. So is a claim for paving: Broad Street, 165 Pa. 475. So is a claim for sewer: City v. Michener, 118 Pa. 535. The appellant may remove the bodies and dispose of its burial ground in the same manner indicated in the opinion of this court in the City of York School District’s Appeal, 169 Pa. 70. By the act of May 26, 1891, sec. 1, P. L. 118, incorporated cemetery or burial associations are authorized to purchase other grounds, and to sell and convey in fee simple such portions of their land owned by them, not used or conveyed by them for burial purposes, or which may have been reconveyed to them. By the act of June 6, 1893, P. L. 325, this authority is reaffirmed and amended by extending it to any incorporated or unincorporated church, cemetery or burial associations.
178 Pa. 543Commonwealth v. Stevens (1897)Affirmed
Appeal, No. 471, Jan. T., 1895, by defendants, from decree of C. P. Blair Co., Equity Docket “A,” No. 226, on bill in equity. Bill in equity for an injunction. Bell, P. J., filed the following opinion: FINDING OF FACTS. The lot of Messrs. Stevens & Owens is a part of a tract of land originally surveyed in the name of John Harland. The official draft and description of said Harland tract bounds it on the south by the Juniata river. In 1831 Wm. M. Lyon & Co., became the owners in fee simple of said John Harland tract and about the time the Pennsylvania railroad was built, they laid out the town of Tyrone principally on said tract. By deed dated September 3, 1867, Wm. M. Lyon & Co., by their attorney in fact J. ft. Lowrie, conveyed the lot now owned by Stevens & Owens to D. T. Caldwell. August 4, 1869, D. T. Caldwell conveyed same to Lloyd, Caldwell & Co. March 25, 1874, Lloyd, Caldwell & Co. conveyed the lot to John T. Fowler who, by deed dated February 25, 1891, conveyed it to S. H. Boyer, and Boyer, by deed dated February 18, 1893, conveyed it to A. A. Stevens. The description of the lot, as contained in deed, Wm. M. Lyon & Co. to D. T. Caldwell, is as follows: “ All that certain half lot in Tyrone designated on the draft of said town as Lot Number One Hundred and Twenty-three and one-half (128j) bounded as follows : Beginning at the intersection of the west line of Alley K with the north line of Main street, thence by Alley K one hundred and twenty feet to Alley L, thence by Alley L to the bank of the Juniata river, thence down said river on the bank thereof about one hundred and thirty feet be the same more or less, till it is cut by the line of Main street (extended) thence by Main street about 14 feet be the same more or less to the beginning.” This same description is followed in the succeeding deeds in the chain of title with the exception that, in the deed to A. A. Stevens after the words “ thence by Main street about 14 feet, be the same more or less,” the words “ the actual measurement being thirty (30) feet more or less,” are added. Main street is now called Pennsylvania avenue. The building of Messrs. Stevens & Owens erected on the lot in question has a frontage of thirty feet on Pennsylvania avenue, the Juniata river flowing very close (from the map we would approximate the distance as two or three feet) to the southeast comer of said building. The building is a two story frame, the first story at least being used for business purposes. Pennsylvania avenue is the principal business street of Tyrone. It starts at the Ward House and P. R. R. station; thence it runs north a distance of about three hundred (300) feet to the Juniata river which is crossed by the iron county bridge. Pennsylvania avenue from the Ward House to said bridge has been filled up and the floor of the bridge is but a continuation of the grade of the avenue. Passing off the bridge going north you immediately come to the lot of Stevens & Owens; in fact the northern abutment of the bridge extends into Pennsylvania avenue in front of the Stevens & Owens building a distance of about one half the frontage of said building. As has been stated the Juniata river runs along the south border of the Stevens & Owens lot. West of the county bridge there is a gradual bend in the river which, as you stand on the bridge and look west in the general direction of Altoona, curves to the southwest, until at a distance of four hundred feet the railroad bridge of the Tyrone Division P. R. R. is reached. Looking east from the county bridge the river is seen to flow almost due east between the lot of W. F. Conrad on the north and the Ray tannery property on the south, a distance of some two hundred feet until the junction of said river with the Bald Eagle creek is reached, said creek entering the river from the north- almost at right angles. On the north side of the river east of the bridge a wall, intended to serve as a breakwater, has been constructed along the Conrad lot, and the building on the Conrad lot almost overtops this wall. In 1867 D. T. Caldwell, the then owner of the Stevens & Owens lot, erected a stone wall along the bank of the river to protect said lot. I find as a fact that since that time said lot has lost no frontage on Pennsylvania avenue by the encroachment of the river. The fact that in the deed from W. M. Lyon & Co. to D. T. Caldwell such frontage is stated to be only fourteen feet while the present building of Stevens & Owens, thirty feet in front, is strongly persuasive that no frontage has been lost, and the weight of the testimony convinces me that there has been no decrease of frontage. I also find as a fact that Mr. Caldwell erected his wall on the then bank of the river. He was called as a witness by defendants and he testified that “ he built to the bank of the river.” I also find as a fact that the bank of the river as defined by said wall has not changed since the erection of the wall. West of the termination of the wall it has changed somewhat, being encroached upon by the flow of the stream, such flow by reason of the curve in the river being directed to the north side of the river. Defendants now propose to erect a new wall, and prior to the issuance of the preliminary injunction had commenced the erection of the same. Said proposed wall starts at a point on the southern face of the northern abutment of the county bridge; gradually diverging by a gentle curve from the said abutment it runs up the bed of the river, and when it arrives at a point opposite the old wall it continues to diverge from the old wall; at a point opposite or nearly opposite the southeast corner of the Stevens & Owens building a divergence of nine feet (9.2) has been attained, and as this point is also opposite the northwest comer or angle of the southern abutment of the bridge, the inevitable result is a narrowing of the vent space of the stream by such distance of nine feet. Passing up the stream the proposed wall for a considerable distance continues to diverge from the old wall, such divergence at its widest point being twenty-three feet, and then again the old wall is gradually approached by the new wall until the two unite, or the new unites with a continuation of the old. To compensate for the loss of said nine feet in width of vent space the defendants propose to clean out certain sand bars in the stream opposite the new wall and also erect the new wall three feet higher than the old wall. By a calculation of J. Luden Henry, civil engineer, the vent space for water — at said narrowest point — before it will now overflow the old wall, is only 739/^ square feet; raising the said wall three feet, although the space is narrowed nine feet, will increase the vent space to 886feet. If the new wall is erected as proposed the said narrowest point will be seventy-five and eight tenths feet wide. About 150 feet below the bridge there is a narrow neck between the Ray tannery property and the Conrad lot with vent space of only seventy-six feet wide. On the principle that you can force into the top of a three inch pipe no more water than is passing out at the bottom, if the same narrow neck below the bridge is to be allowed to remain, the narrowing •of the stream by defendants above the bridge would have very little injurious effect in causing the water to overflow; the only ■additional injury would be by the additional friction referred to by Mr. Gfuyer and Mr. Beyer in their testimony. [I find as a fact that if said narrow neck between the Ray tannery and the Conrad lot is not to be widened the erection of the proposed wall by defendants would not probably cause such ■a perceptible increase in the overflow of Tyrone in times of floods as would justify a chancellor in restraining the erection •of such wall by an injunction. But I also find as a fact that the vent space for water in the vicinty of this Pennsylvania ■avenue county bridge is already too narrow, especially in view -of the well known fact that as the timber in the mountain is cut ■off the volume of water in times of floods is increased.] [1] The vent space of the Juniata river at this point should be widened, wherever widening is practicable, instead of narrowing. I also find as a fact (and it is self evident) that raising the -old wall three feet and cleaning out the sand bars would be attended with all the advantages to the stream which could, in any view of the matter, be claimed for the erection of the new wall, without any disadvantages. The weight of the testimony shows, and I so find, that the, erection of the new wall, as it is proposed to erect it, will not damage the abutments of the Pennsylvania avenue county bridge. It is true that a sand bar which now protects to a certain degree the south abutment may be washed out and driven away, but said sand bar and also the series or continuation of sand bars which have collected along the south bank or side of she stream approach very nearly in character to nuisances, and should be abated. Defendants propose however, as we understand the matter, to start their wall outside the line of their lot on ground which, while it is in the river, is within the lines (extended) of Pennsylvania avenue. By what right or by whose authority, (as the -borough of Tyrone and the county commissioners both seem to be hostile) defendants undertake to so occupy territory to which they have no claim is not apparent. If defendants are compelled to withdraw to the front line (extended) of their own lot then, to obtain the additional frontage to their lot on said front line which would enure to them by the erection of the new wall, they would be obliged to construct a wall out into the stream joining their present wall at almost right angles. The result would be an angle just above the north abutment of the bridge and an eddy which would tend to undermine the north abutment of the bridge. Such findings of facts in regard to the navigability of the Juniata river, as I regard to be material, can well be embraced in answers to defendants’ written requests to find certain facts. I will therefore proceed to answer said written requests. First. That the land contained within the municipal limits of the borough of Tyrone, included within which is the lot of defendants, is part of four tracts of land granted and conveyed by the commonwealth of Pennsylvania, as follows: Warrant to John Harland, dated October 8, 1784, for 100 acres of land situate in Bedford county (now Huntingdon) including the improvement since March 1,1784, on Little Juniata at the narrows of Logan’s Ridge, adjoining the proprietaries’ line in Sinking Valley, on which was surveyed on the 4th of October, 1786, 42 acres, 127 perches and allowance, adjoining Edward Shippen, James Harris et al. Warrant of Frederick Lazarus, dated February 1st, 1794, on which was surveyed on the day of June, A. D. 1794, 227 acres, 118 perches and allowance of land situate on the waters in Little Juniata, Tyrone township, Huntingdon county, and adjoining lands of Edward Shippen, Daniel Turner, Samuel Daniels, Adam Johnson and John Smith. Warrant of James Harris dated October 8, 1784, for 400 acres of land adjoining land, this day applied for by Alexander Hale, on the north bank of Little Juniata river, on which was surveyed October 5,1786, 452 acres, 112 perches. Application No. 2, dated August 1,1766, Edward Shippen, Junior, for 1000 acres of land lying on the Little Juniata creek, beginning where said creek runs through a piney road, and extending up said creek until it joins lands to be surveyed for Joseph Shippen, Junior, on which was surveyed June 26, 1767, 492 acres and allowance of the said tracts having been so granted and conveyed without reservation and restriction. Answer: Affirmed. Second. That the defendants claim title to the locus in quo under the aforesaid grants or parts of them. Answer: Affirmed. Third. That at the time of the aforesaid grants the Little Juniata river flowed through the same and emptied into the Juniata river near what is now Petersburg, Huntingdon county, Pennsylvania, and was a public stream or highway for the purpose of navigation. Answer: Affirmed. Fourth. That by an act of the legislature of Pennsylvania, approved March 29,1808, the Little Juniata river between certain points, including the plan of said borough of Tyrone, was declared a public highway for the passage of rafts, boats and other vessels, but that the said Little Juniata river has not been used as a public highway for the passage of rafts, boats and other vessels for more than 80 years past. Answer: Affirmed. 4i. That Logan’s Narrows is east of, below, the locus in quo, and is east of the John Harland tract.’ Answer: Affirmed. [Fifth. That the width of the ancient bed of the stream was variable and indefinite. Answer: I decline to affirm this point as to the bank of the river near the southeast corner of the Stevens & Owens building which is the point most material to the present controversy. I find, however, that prior to the erection of the county bridge and the filling up of Pennsylvania avenue and adjacent land south of the bridge, the river in times of flood found vent and flowed through a flat, now filled up, between tbe bridge and tbe base of the Brush mountain. The Pennsylvania railroad now runs along said base of said mountain ; next to the railroad in the direction of the river has been erected the Ward House and the Pennsylvania railroad station; the space between said railroad and the county bridge, especially along the line of Pennsylvania avenue, has been filled up. But I find as a fact that in the vicinity of the county bridge the bed of the stream has not changed.] [2] [Sixth. That owing to the construction of the railroad, public highway and other improvements the ancient bed of the stream has been interfered with and diverted at various points, and the bed of the same over which the river now flows is not the ancient bed, but one created by reason of the diversion of the stream so as to encroach upon the property on the north bank of the river. Answer: I decline to affirm this point except in so far as it may be affirmed by my answer to the preceding (fifth) point.] [3] [Seventh. That by the erection of the wall of defendants and the extension of the same along the alley bounded by the Juniata river by the municipal authorities, or other persons, the damage sustained in the past from the overflowing of the bank of the Juniata river will, to a great extent, be avoided, and while the danger and damage as sustained will not be increased by the erection of a proposed wall by defendants. My answer to this point is as follows : If the narrow neck below the bridge between the Ray tannery property and the Conrad lot, is not to be interfered with and widened, the erection of the proposed wall by defendants will not increase the injury by overflow in time of floods to such an extent as would justify a chancellor in interfering by injunction.] [4] 7i. That for times past the Juniata river, as it passes through the borough of Tyrone, in times of freshets and floods, has overflowed the banks, filling the lower part of the borough of Tyrone, in the vicinity of 10th street, Logan avenue and Pennsylvania avenue with water to a depth of six feet or less and doing great damage to real and personal property and the streets and alleys of said borough. Answer: Affirmed. Eighth. That the width of the bed of the Little Juniata river, at a point below the locus in quo, as fixed by the walls erected with the knowledge and acquiescence of the borough of Tyrone, is seventy-six feet. Answer: I decline to find that the bed of the river at the point designated is fixed at seventy-six feet, hut I do find that it has been narrowed to that width. The borough authorities must have seen this, and there is no evidence that prior to the commencement of this present action they took any steps to remedy the matter. Ninth. That the wall as laid out by defendants will leave in said river a clear bed for the flow of water of the width of at least seventy-six feet, and of a width equal to the width of the channel at a distance about 150 feet farther down the stream, • below the county bridge, and at a point between the tannery wall and that erected by W. F. Conrad. Answer: Affirmed. [9^. The present passing capacity of the stream from the bed to the level of the present wall of defendants, and from said wall across to the abutment, as shown by cross section of J. Luden Henry, is 739.5 square feet. The passing capacity of the stream, at the same point, as it will be if defendants erect their proposed wall, will be 886.86 square feet or about twenty per cent greater. The construction of the proposed wall by defendants will be a material protection to their property, and will enable them to use a portion not now available by reason of interference by the water of the Juniata river, and it will not materially, if at all— increase the danger and damage sustained in the past by the citizens of Tyrone in the vicinity of 10th street, Logan avenue and Pennsylvania avenue, from the overflow of the banks by the Juniata river in time of high water. Answer: I affirm this point with the exception of the last clause, to wit: the clause following the words “ interference by the water of the Juniata river.” My answer to said last clause is the same as my answer to the seventh point.] [5] Tenth. That the wall which defendants are erecting is located within the lines of their own property, and when erected will not interfere 'with the use of the Little Juniata river as a public highway for the passage of rafts, boats and other vessels. Nor will it cause any greater rise of water in times of freshets, under the Juniata bridge, or endanger the abutments of the same. Ansiver: The wall proposed to be erected will not interfere with the use of the Little Juniata river as a public highway, for the passage of rafts, etc. As it is proposed to be erected, it will not endanger the abutments of the bridge, but the commencement of the wall is not within the lines of defendants’ property as I understand the matter. Eleventh. That said wall is necessary to protect the property of defendants from damage in time of high, water, and to enable them safely to occupy and improve the same. Answer: I decline to affirm this point as it is put. A wall is necessary, but rebuilding and raising the old wall would protect the property now occupied by defendants. The proposed wall would be a benefit to defendants because it would enable them to increase their frontage on Pennsylvania avenue. Twelfth. That no greater damage will be sustained by the citizens of Tyrone, nor will any greater damage be done to the streets and highways of the municipality, by the construction of the proposed wall of defendants than has been sustained in the past from overflows of its banks by the Little Juniata river in times of high floods. Answer: My answer to this point is the same as my answer to the seventh point. CONCLUSIONS OP LAW. The act of March 26, 1808, declaring the Juniata river from Logan’s Narrows to the mill of Edward Bell to be a public highway having been passed subsequently to the issue of warrant and return of survey of the John Harland tract, the right of the owners of said Harland tracts to hold the land to the center of the Juniata river (subject to the easement of navigation) was not divested: Coovert v. O’Connor, 8 Watts, 477. Navigation ceased years ago on this portion of the Juniata river; moreover the wall proposed to be erected by defendants would be no obstruction to navigation; therefore it is unnecessary to consider legal questions concerning the obstruction of navigable streams. Conceding, however, that Messrs. Stevens & Owens own to the middle of the river they have no right to so obstruct said river as to injure their neighbors. If any authority is necessary to sustain this last proposition it will be found in the opinion of Mr. Justice Williams, in Fulmer v. Williams, 122 Pa. 206, wherein he clearly demonstrates that the maxim sic utere tuo ut alienum non lsedas is as clearly applicable to water fronts as to back lands. The lot of Messrs. Stevens & Owens is in the business portion of Tyrone and the river as it flows past said lot is within a square of the business center of the town. Any obstruction which would cause ordinary floods to overflow said business portion of the town, or which would materially increase such overflow, would be a public nuisance. “ The remedy for public nuisance is by information by the Attorney-General. And the Attorney-General may likewise proceed by bill in equity: ” ■ Bispham’s Equity, sec. 438. [The natural result of narrowing the banks of a stream is to cause it more readily to overflow its banks in time of flood. In the vicinity of the proposed wall the river has been encroached upon by one obstruction after another until the passageway for the water has become too narrow and should be widened instead of narrowed. The proposed wall would add another encroachment. Defendants attempt to justify their right to erect said wall by claiming that the stream will still be as wide as it is some 150 feet below at the narrow neck between the Conrad lot and the Ray tannery property. But two wrongs never make one right. Said Conrad-Ray narrow neck should be widened, and a halt should be called on all persons who may attempt to further encroach on the stream.] [6] At the narrowest point between the abutments of the bridge there is a passageway for water ninety-three feet wide. No one should be allowed by the erection of walls or otherwise to make the channel any narrower than this distance of ninety-three feet; rather an attempt should be made to keep the channel wider, and when the bridge is rebuilt the distance between the abutments should be increased. [A wall is necessary along defendants’ water front, and such wall should be continued on up to the railroad bridge, but such wall should be constructed as part of a system of breakwaters to protect the citizens of Tyrone, instead of being erected according to the caprice of each individual lot owner, and in its construction the channel of the stream should be widened, wherever practicable, instead of being narrowed.] [7] The sandbanks also should be systematically removed, and the bottom of the river should be deepened. [By act of assembly of June 8, 1891, P. L. 210, Pur. Dig. edition of 1894 p. 24-3, authority is conferred on the borough councils of Tyrone to so widen and deepen the channel of the Juniata river. Proceedings in this court for the appointment of viewers to assess damages show that on September 3, 1894, said councils did pass an ordinance for this purpose. In the belief that said ordinance will be enforced and that existing encroachments on the stream will be removed, and further attempts to encroach will be prevented, a decree is now made continuing the preliminary injunction awarded on August 3, 1894.] [8] Equity is a flexible system and its decrees can be moulded and modified by subsequent events. If in the future it be made to appear to this court that vigorous measures have not been adopted to widen the river at the narrow neck between the Conrad lot and the Ray tannery property it will be possible to modify, or wholly vacate, the decree now made, as it is not the province of a court of equity to restrain one man from committing a nuisance if similiar nuisances in the same neighborhood are allowed to go unnoticed and uncomplained of. ANSWER TO LEGAL POINTS SUBMITTED BY DEPENDANTS. That under the grants of the commonwealth of Pennsylvania to John Harland, dated October 8, A. D. 1784, surveyed October 4, A. D. 1786, the right of the commonwealth to the land described in said warrants and surveys, which includes the locus in quo, passed to the warrantees, without reservation or restriction; and the Little Juniata river being the southern boundary of said John Harland tract, at a point where said tract covers the locus in quo, vested the bed of said stream in said grantees and their successors in title: Gould on Waters, p. 214, note 1; Coovert v. O’Connor, 8 Watts, 477; Railroad Co. v. Ingham, 36 Pa. 194; Zug v. Com., 70 Pa. 138; Fulmer v. Williams, 122 Pa. 191. Answer : Affirmed. That the defendants holding the locus in quo, under the grant from the commonwealth to John Harland are vested with all the title of the commonwealth to said tracts, and the streams flowing over, or abutting thereon, in so far as the locus in quo is part of the same, and the southern line' of defendants’ lot of ground — the locus in quo — being the “bank” of the Little Juniata river vests in them a good and sufficient title to the land covered by water of the Little Juniata river to the middle thereof. Answer: In the deeds for the lot in question said lot is described: . . . “ Thence by alley L to the bank of the Juniata river, thence down said river on the bank thereof about 130 feet, be the same more or less, till it is cut by the line of Main street.” In a note to p. 208, 10 Lawyers’ Annotated Reports, after stating the general rule to be that where a river is described as the boundary the grant extends to the center-of the stream it is said: “ But if the land is described as bounding on the bank or shore of a stream then the low water mark will be the boundary. The particular reference to the bank excludes the stream:” Child v. Starr, 4 Hill, 369; Halsy v. McCormick, 13 N. Y. 296. In Harch v. Dwight, 17 Mass. 299, Parker, C. J., says: “Without doubt by our law the-owner of land extending to the bank of a river will own to the-middle of the river, if it be not navigable, and so public property. But the owner may sell the land without the privilege-of the stream, as he undoubtedly will if he bounds his grant by the bank.” • The above stated rule would limit the claim of Messrs. Stevens & Owens to the bank of the Juniata river and would make-them trespassers on some one’s land — Wm. M. Lyon & Co.’s-most probably — if they should attempt to build their proposed wall. However the cases of Fulmer v. Williams, 122 Pa. 206; Wood v. Appal, 63 Pa. 224 and other cases would seem to-indicate that the rule as stated in the foregoing citations, is not the law in Pennsylvania; hence I have concluded to affirm this point. That the act of assembly passed March 26, A. D. 1808, declaring the Little Juniata river from Logan’s Narrows to the-mill of Edward Bell a public highway for the passage of rafts, boats and other vessels, being subsequent to the grant of the-commonwealth to John Harland covering the land in controversy, did not divest the property of the grantees to said tract, or the soil covered by the waters of the stream abutting thereon; but left to the same their right to the soil to the middle of the-stream not inconsistent with the public use of the stream as a highway for the passage of rafts, boats and other like vessels. Answer: Affirmed. The Little Juniata river from Logan’s Narrows to the mill of Edward Bell (now Bell’s Mills), is not and never was one-of the large rivers or principal streams of the commonwealth. Answer: Affirmed. The wall which defendants are erecting on their property in so far as it, in any way, is built on land covered by waters of the Little Juniata river, will not obstruct or impede the navigation of the same, or interfere with any easement or right the public may have in the waters thereof for the passage of rafts boats and other vessels. Answer: Affirmed. [The wall as proposed to be constructed by defendants is not a nuisance per se; whether it is or will be a nuisance at all depends upon the testimony, which in the case is conflicting and contradictory, and the right to the injunction prayed for not being clear, and not having been settled by the verdict of a jury, the bill must be dismissed at the cost of the plaintiffs : New Castle v. Ranney, 130 Pa. 546; Wood v. McGrath, 150 Pa. 458; Mowday v. Moore, 133 Pa. 612; Rhodes v. Dunbar, 57 Pa. 286. Answer: I decline to affirm tins point. [9.] In Bispham’s Equity, sec. 440, page 492 (third edition), it is said: “ The tendency of the modern decisions is certainly very much against the old rule which required the prior establishment of the legal right.” Mowday v. Moore, 133 Pa. 598 and Wood v. McGrath, 150 Pa. 451, were both cases of alleged private nuisances, but in Mowday v. Moore, Mr. Justice Mitchell shows very conclusively that the plaintiff had no case even at law, and in Wood v. McGrath, Mr. Justice Green characterizes the case of plaintiff as “ worse than doubtful.” In New Castle v. Raney the nuisances complained of were of a public character, but that case is clearly distinguishable from the present one; there the attempt was to destroy a dam which had “ been in existence for over half a century,” and which, “ if a nuisance at all ” had become “ so by the gradual growth of the city of New Castle; ” here the wall is attempted to be built after the thriving and growing town of Tyrone had sprung up all around the locus in quo, and defendants are met at the “threshold” of their “enterprise by a remonstrance.” The injunction asked for in New Castle v. Raney was in effect mandatory ; in the present case the injunction is in effect preventive. “ Preventive injunctions are more easily obtained from the courts than mandatory: ” Beach’s Modern Equity, sec. 753. [Moreover it is clear the proposed wall will be a nuisance; the doubt as to whether any additional injury will be caused thereby in time of floods arises from the fact that another nuisance of like nature exists a little further down the stream.] [9] SUPPLEMENTAL BEPOBT. After preparing the foregoing portion of this report I left it at the prothonotary’s office, notifying parties and counsel that access to the same might be had, and also informing them that I would sit on March 1, 1895, to hear any suggestions orrearguments as to alleged mistakes either of law or of fact. At the request of defendant said resitting was adjourned until March 8, 1895, at which time counsel for both parties appeared. Defendants submitted exceptions — herewith filed — and presented testimony taken on rule and notice, showing that the borough authorities of Tyrone had done nothing to carry into effect the ordinance passed September 3, 1894 — and hereinbefore referred to — for the improvement of the Juniata river. Counsel for plaintiffs asserted that said improvement was to be pushed in good faith, and gave several excuses for the delay, one being that the tax levy for 1894 had been made prior to the passage of said ordinance and consequently no financial provision for the additional expense had been made, but that such provision would be made at the approaching annual tax levy. Counsel for defendant made an elaborate argument to the effect that my finding of fact, as to the narrowing of the river being a public nuisance, was not sustained by the testimony, and that the weight of the evidence showed that the proposed wall would be a benefit instead of an injury. I have carefully reread the testimony, but must decline to alter my former findings of fact, except in one particular. In the answer to tenth request for findings of fact I said, “ As it is proposed to be erected .... the commencement of the wall is not within the lines of defendants’ property as I understand the matter.” I reform said portion of said answer so that it will read, “As it is proposed to be erected .... the commencement of the wall will not be within the building line of defendants’ extended, but will be within their curb or outer pavement line extended,” and they claim the right so to do by reasoning analagous to that which justifies a lot owner in constructing a coal cellar under the pavement. Counsel for defendants also presented an elaborate argument alleging error in conclusions of law. This argument was principally directed to the point that, assuming the evidence to be conflicting, no injunction should issue until the plaintiffs’ right ■has been established by law. My views on this point have •already been given in the answer to defendants’ sixth legal point ■and I see no reason to revise the same. In City of Philadelphia’s Appeal, 78 Pa. 39, Mr. Justice Shabswood closes the opinion of the Supreme Court by saying: “ Every case of this kind must depend on its peculiar circumstances and will form no precedent for any other case varying from it in those circumstances or the character and extent of the encroachment.” This remark of course was made in a case in some respects dissimilar to the present one, but in a certain •sense at least the remark is applicable to all proceedings for injunctions. And, under all the circumstances of the present ■case I deem it best that the preliminary injunction should be ■continued. Suppose the injunction is dissolved and defendants •energetically proceed to erect a building on the land which they ■claim the right to include inside of their proposed wall. If the borough of Tyrone, under the provisions of the act of assembly ■of June 8, 1891, P. L. 210, proceed to widen the river, in accordance with the lines as laid out by ordinance of September 3, 1894, one of two results will follow; if plaintiffs are right in their present contention the building can be torn back to the bank line without paying any compensation to defendants for such destruction to the building; if defendants are correct in their present claims as to the facts and the law, still the borough •can tear down said building by paying compensation therefor. In either case it would be so much money out of pocket for •some one without a corresponding benefit to the other party, for, in the latter event, defendants would be simply reimbursed out •of the borough treasury for money expended by them in erecting the proposed improvements. On the other hand a continuance of the proposed injunction can damage no one except in so far as injury may possibly result to plaintiffs through delay. If, as intimated by defendants at the reargument, the borough authorities of Tyrone do not propose energetically to proceed with their projected improvement of the Juniata river as provided for by said ordinance, and said ordinance is a mere makeshift to meet the exigencies of the present ease, and the motive of certain members of borough council is not to improve, but simply to lay obstacles in defendants’ path, while others are allowed to pass unnoticed, the court, after a proper interval of time has elapsed to develop the real purpose of the borough authorities, can modify the decree this day made and allow defendants to erect the wall, and seek compensation for any delay occasioned by these proceedings by action brought against the plaintiffs or the injunction bondsmen. I have therefore adoptedthe decree suggested by, and submitted with the original report, with the single exception that I have directed plaintiffs to pay the costs of their own witnesses; this provision as to a division of the costs seems to be but just in view of the fact that plaintiffs failed to substantiate their allegations as to the injury to the county bridge, and their contention as to the effect •of the act of assembly declaring the Little Juniata river a navigable stream. DECREE. [This case came on to be heard and was argued by counsel •and after due consideration, now March 23, 1895, it is ordered, .adjudged and decreed as follows, viz: That the preliminary injunction awarded on August 3,1894, restraining defendants from erecting a wall in the Juniata river near the Pennsylvania •avenue county bridge be continued and that defendants pay the -costs of these proceedings excepting plaintiffs’ bill for witnesses which is to be paid by plaintiffs.] [10] Errors assigned were (1-9) portions of opinion as above, -quoting them; (10) the decree, quoting it. That no one but the attorney general can sue for the common■wealth in proceedings of this kind to abate a public nuisance is •so well established as to scarcely require authority to sustain it: Buck Mountain Coal Co. v. Lehigh C. & N. Co., 50 Pa. 99. Neglect on the part of the public may create such an equitable estoppel as to lead courts of equiiy to decline to exert the -extraordinary remedy of an injunction in its behalf: Gould on Waters, (ed. 1891) sec. 533; Kerr on Injunction, (ed. 1871) p. 362; Phila.’s App., 78 Pa. 37. If for argument’s sake it be conceded that the testimony was •conflicting and contradictory, still, under all the authorities, •for the court to assume the functions of a jury and undertake to pass upon such, testimony and continue the injunction, was, we submit, a clear error: Newcastle v. Raney, 130 Pa. 562; Wood v. McGrath, 150 Pa. 458; Mowday v. Moore, 133 Pa. 611; Rhea v. Forsyth, 37 Pa. 506; 2 Story’s Eq. 251; 3 Pomeroy’s Eq., sec. 1349; Bispham’s Principles of Equity, (ed. 1882) sec. 440; 1 High on Injunction, (ed. 1890) secs. 760, 762; Gould on Waters, (ed. 1891) sec. 506; Spelling on Extraordinary Relief, (ed. 1893) p. 340. The nuisance must actually exist; if the injury be doubtful, eventual or contingent equity will not interfere by injunction. The fears of mankind, though they be reasonable, will not create a nuisance: Bispham’s Principles of Equity, (ed. 1882) sec. 440; Gould on Waters, (ed. 1891) sec. 512; Rhodes v. Dunbar, 57 Pa. 287; Butler v. Rogers, 1 Stockton, 487. Equity will not lend its aid to enforce by injunction the bylaws or ordinances of a municipal corporation restraining a certain act unless the act is shown to be a nuisance per se: High on Injunctions, 466, sec. 788; City of Hudson v. Thorne, 7 Paige Ch. (N. Y.) 261; Williamsport v. McFadden, 15 W. N. C. 269. The tendency of the modern decisions is certainly very much against the old rule which required the prior establishment of the legal right: Bispham’s Eq., sec. 440, p. 492; Reimer’s App., 100 Pa. 182; Rochester v. Erickson, 46 Barb. 92; 3 High on Injunctions, sec. 768. In grants by the commonwealth of lands bounded by water there is no presumption of an exclusive use of the water, nor of hereditament of the soil covered with water: Carson v. Blazer, 2 Binn. 491. On streams declared to be public highways the absolute ownership extends only to high water mark, and all below that is public river highway. Nothing can be erected between high and low water marks: Bailey v. Miltenberger, 31 Pa. 43; Wainwright v. McCullough, 63 Pa. 77; Stover v. Jack, 60 Pa. 343; Fulmer v. Williams, 122 Pa. 208; Palmer v. Farrell, 129 Pa. 169.
178 Pa. 563Morris v. Stevens (1897)Affirmed
Appeal, No. 178, Jan. T., 1896, by-defendants, from decree of C. P. Blair Co., Equity Docket “A,” No. 222, on bill in equity. Bill in equity for an injunction. Bell, P. J., filed tbe fol lowing opinion in the nature of report of a master. FINDING OF FACTS. On July 4,1892, an annual election for officers of the Tyrone Gas & Water Company was held. Two tickets were in the field.
178 Pa. 582Estate of Blair (1897)Reversed
Appeal, No. 323, Jan. T., 1896, by Frank P. Blair, from decree of O. C. Centre Co., on petition for specific performance. Petition for specific performance. From tbe record it appeared that various orders and decrees were made from time to time by different judges. The facts are briefly as follows: On August 18, 1887, General "William H. Blair, the decedent, gave to the Bellefonte Furnace Company, the petitioners, in writing, the refusal or option,-for the-period of sixty days, to purchase from him a tract of land situate in Half Moon township, Centre county, Pa., containing 260 acres or thereabouts, for the sum of §5,200, with a provision, therein to the effect that whenever the purchasers, by the sale of the surface of said land, iron ore or timber thereon, should be reimbursed the said sum of §5,200, then he should become the owner of an undivided one half interest in what remained unsold; his interest in the iron ore to be accounted for at twelve and one half cents per gross ton as royalty; the furnace company to have the right of entry, within the sixty days, for the purpose of testing for iron ore thereon. In pursuance of this contract the furnace company went into possession, sank certain test pits for ore and made valuable improve^ ments upon said land, and while there was no specific election on the part of the furnace company to accept the land under the option, the parties acted as if it had been accepted and dealt with each other upon that basis. No legal tender was ever made of the purchase money, but the purchasers signified to Mr. Blair, their readiness, and offered to pay the purchase money upon title being made in pursuance of the contract, desiring to have the title in order to place upon this and their other property a contemplated mortgage for one hundred thousand dollars. The evidence shows that while Mr. Blair treated this tract of land as his own, that the title to a part thereof, to wit: That portion included within the lines of the Josiah Lambourne survey, was in his son, Frank P. Blair, who is his administrator and the respondent in this proceeding, and the title to another portion thereof was in William Lytle, to whom he had sold it by article of agreement; that he had an understanding with his son to join in a conveyance, and with said Lytle for his title, if necessary, but objected to passing the title on account of the intention of the furnace company of including the premises in the mortgage, on the theory that the mortgage would interfere with his reserved rights in the property. Mr. Blair died in 1888, intestate, leaving to survive him, his widow and one son; the said Frank P. Blair, thus vesting in said Frank P. Blair the legal title to the land agreed to be conveyed to the furnace company, subject only to the right of dower therein in the decedent’s widow. On the 16th of April, 1889, Frank P. Blair brought an action of ejectment against the furnace company, to No. 319, April term, 1889, in the court of common pleas, of Centre county, for the 260 acres of land in question. The case was tried May 5, 1891, when the defendants, by way of defense, claimed title under the option contract, the offer of which was objected to and excluded by the court on the ground that the orphans’ court alone had jurisdiction over such contracts and a verdict was taken for the plaintiff. On the 6th of May, 1891, a rule for new trial was granted, which, on the 24th of July, 1893, was overruled by Judges Fukst of the 47th, and Barker of the 49th judicial districts, before whom it was heard, who made decree, allowing defendants sixty days within which to institute proceeding for specific performance in the orphans’ court, and provided that no judgment be entered upon the verdict, except upon application to the court. On the 26th of August, 1893, the Bellefonte Furnace Company filed in the orphans’ court of Centre county their petition for specific performance of said contract, to which petition, respondent made answer to the effect that, the contract in question was a mere option for sixty days, not accepted, nor purchase money paid or tendered, and denying petitioners’ right to specific performance. At the same time the respondent, as an individual, represented, that while under no obligation, either as an individual or administrator to do so, lie was willing to convey said land to the petitioners, including the part owned by him individually, as well as that inherited from his father, upon their paying the stipulated price of $5,200, with interest. On the 27th of .November, 1893, Clement Dale, Esq., was appointed examiner and master to report the facts to the court, and to suggest a decree, who made report the 6th of December, 1894, finding from the facts that the land agreed to be conveyed by the option contract contained 270 acres 113 perches; that the title to about one half of this land was vested hi the decedent and the other one half in his son, Frank P. Blair; that prior to the making of the option contract, the decedent had sold to one William Lytle 132 acres of the land in question; that subsequent to his death a release had been procured from said William Lytle to said Frank P. Blair, vesting title in him; and that he, the said Frank P. Blair, could, as he proposed in his answer to the petition and in his testimony, make title to the entire tract, and he recommended a decree that as an individual, and as administrator and sole heir at law of his father, he make deed, therefor, to the Bellefonte Furnace Company, reserving such rights as were contemplated in the option contract, and that the furnace company, within ten days from the receipt of notice of the preparation of said deed, pay to him the sum of $5,200, without interest, the costs to be equally divided between them. Exceptions were filed to this report before the master, which were overruled by him, and the same were subsequently renewed in court; they alleged various errors of law and fact made by the master. The exceptions were argued on the 4th of January, 1895, before the then president judge of the court, the Honorable A. O. Fubst, who filed an opinion thereon, in which he briefly considered the rights and equities of the parties, and in favor of the petitioners held that the facts, as to the offer of payment of the purchase money, under the circumstances, were equivalent to a tender thereof, and considering the condition of the title, that the purchaser ought not to be required to pay interest upon the purchase money; and decided in favor of the estate, by allowing it to have the benefit of securing title from William Lytle and Frank P. Blair, so as to enable the conveyance to be made of the entire tract agreed to be conveyed under the option contract, and in accordance with said option the court on the 5th of January, 1895, made decree as follows, namely: “Decree. And now, January 5,1895, the above cause came on to be heard upon exceptions to the master’s report and the same was duly argued by counsel, and after consideration thereof, the court do award and decree specific performances of said contract of August 17, 1887, in manner following: “ 1. The estate of Gen. W. H. Blair is allowed thirty days from this day to obtain a good and sufficient title to all of the land therein described, and thereupon shall, within said period, prepare and file in the orphans’ court a good and sufficient deed conveying to the petitioners a fee simple clear of all encumbrances, a good and sufficient title to the lands in said contract mentioned and being specifically described by metes and bounds in the decree submitted by the master, subject only to the reservation contained in said written contract, and upon notice of the filing thereof, petitioners shall thereupon pay into the orphans’ court and subject to the order of the court, without liability to costs or poundage, the sum of $5,200, and thereupon the said court shall name and file a formal decree in specific performance of said contract according to the true intent and meaning thereof. “ 2. If, within said time, it shall be impossible (by reason of inability to obtain) for the estate of Gen. W. H. Blair to make such conveyance of title as is provided in the first section of this decree, the petitioners having, in open court, assented to an election and willingness to take title to such part as Gen. W. H. Blair had' title at the date of the agreement, then the case to be referred back to the master to ascertain the exact quantity of land to which the estate of Gen. W. H. Blair had title at the date of contract and at the time of his death. Also to ascertain the due proportion of the purchase money, without interest, which should be paid for such part. Said calculation to be made upon the basis of $5,200 for the net amount of land contained and described with the boundaries set out in the aforesaid agreement, and to report the same to the court within thirty days after the reference back to the master, and the court, shall thereupon make a formal decree in specific performance of the contract so far as the same can be specifically enforced, as aforesaid, reserving to the grantee or grantees in said contract any right of action he or they may have at law or in equity for breach of contract as aforesaid. . “ 3. All costs now accrued to be paid by the parties in equal proportion as decreed by the master, including the master’s fee of $100. All future costs which may be incurred to be paid by the estate of Gen. W. H. Blair. “ 4. The purchase money, when paid into the orphans’ court, shall be paid out upon the written order of the court only, or' shall be retained by the court until the equities arising out of this contract shall be fully adjusted by the decree of the said court.” This decree, as will be seen, was so drawn as to enable the administrator, who is the sole heir of the decedent, to procure the outstanding title of William Lytle and, as administrator and an individual, file deed for the entire tract of land, and gave him thirty days therefrom to do so, in which case the petitioner should pay into court the consideration or sum of $5,200, without interest, in which case a formal decree in specific performance of contract should thereupon be made. And it further provided that, in case it was “ impossible by reason of inability to obtain title ” for the administrator to thus convey, that then the case “ be referred back to the master to ascertain the exact quantity of land to which the estate of Gen. W. H. Blair had title at the date of contract and at the time of his death. Also to ascertain the due proportion of the purchase money, without interest, which should be paid for such part.” Respondent, however, saw fit to decline the privilege afforded him of filing a deed for the entire tract within thirty days, and took an appeal to the Supreme Court from the decree made as aforesaid, which Court, after argument, refused to pass upon the errors complained of because the order appealed from was but an interlocutory decree, and sent the case' back to the lower court to be proceeded with to final decree and adjudication. In accordance, with said decree the record was returned from the Supreme Court, and on the 25th day of June, 1895, the court made the order referring the matter back to the master to ascertain the quantity of land to which the estate could make title and the proportionate part of the purchase money to be paid on account thereof in pursuance of the decree of January 5, 1895, who,after taking testimony, made report on January 3,1896, finding that the estate could only make title to sixty acres of the land in question, and that the proportionate part of the $5,200 of purchase money to be paid on account thereof was $1200, and recommended the following decree, to wit: “KECBEE. “And now, January 3, 1896, it is ordered, adjudged and decreed that the petitioners, to wit: the Beliefonte Furnace Company, pay into the orphans’ court of Centre county the sum of twelve hundred ($1,200) dollars, not to be paid out only upon the written order of the court, and shall be retained by the court until the equities arising out of this contract shall be fully adjusted by the decree of the said court. And further, that the said Frank P. Blair make, execute and deliver to the Bellefonte Furnace Company a deed for all that certain tract of land containing sixty (60) acres, to which the said William H. Blair had title during his lifetime.” To this report both the petitioners and the respondent filed exceptions, winch were disposed of by Gordon, P. J. of the 46th judicial district in the following opinion: The case is now before us for final decree, and the first question to be considered is the extent to which our investigations should go; that is to say, whether we should review the case from the beginning, regardless of the decree of his Honor, Judge Ftjbst, of January 5, 1896, as claimed by the respondent, or consider all matters up to the making of that decree adjudicated so far as the lower court is concerned, as claimed by petitioners. We are of the opinion the latter contention is correct and that the investigation should be confined to the matters submitted to the master on the second reference and to the exceptions filed to his report thereon. We have no right to review the case as presented to the court resulting in the former decree. That is a matter exclusively for the higher court. The appeal heretofore taken was for that purpose. The Supi’eme Court did not refuse to pass upon the errors complained of, but merely postponed consideration of the same until final decree was made disposing of the case. If the higher court would consent to review each interlocutory decree as made in the progress of a trial, there might be as many appeals as there are steps taken. After the decree in the present issue is made, either party can have the entire case reviewed on appeal, and all errors complained of in the various decrees made during its progress corrected. Being of this opinion, we decline to consider any of the questions involved in the issues heretofore disposed of by the court, and express no opinion whatever thereon. But, assuming the decree of January 5,1896, is just and correct, will confine our investigation to the issue raised by the exceptions taken to the master’s second report, just as if said decree was a final adjudication of the case up to that point, which it will be, unless reversed on appeal by a higher court. From this the conclusion follows that respondent’s first fourteen exceptions, raising questions involved in the prior disposition of the case, must be and they are hereby overruled. The issue is confined to the master’s second report. This case was referred back to him “ to ascertain the exact quantity of land to which the estate of Gen. W. H. Blair had title at the date of the contract and at the time of his death. Also to ascertain the due proportion of the purchase money, without interest, which should be paid for such part.” Before considering the exceptions taken to the master’s findings as set forth in his report, we feel it our duty to notice the following points made by the respondent’s counsel, on account of which we are asked to grant relief, viz: 1st. That the provision in the first section of the decree limiting the estate to thirty days in which to procure title and file deed is unjust. 2d. That the time for filing deed should be extended, and the decree so modified that the deed filed with the master November 23, 1895, dated November 13, 1895, may be considered as filed in time. And 3d. That the case was improperly sent back to the master, because the emergency upon the happening of which it was to be sent had not arisen — that is to say, it was not “ impossible (by reason of inability to obtain title) for the estate of Gen. W. H. Blair to make such conveyance of title as is provided,” but on the contrary that it acquired the necessary outstanding title, and refused to file deed, not because of inability to make title, but in order to have the action of the court reviewed on appeal. In our opinion these points are not well taken. It is sufficient answer to the first to say that if the order limiting the estate to thirty days in which to procure title and file deed is illegal and unjust, the same can be corrected on appeal. To the second, that we are powerless to afford the relief asked. The decree being regular upon its face, and the term at which it was made having ended, it could not subsequently be modified or changed: Ullery v. Clark, 18 Pa. 148; Mather’s Ex’r v. Patterson, 33 Pa. 487; King v. Brooks, 72 Pa. 363. As to the third point, we think the case was properly sent back to the master. This was the only proper way to bring about the final determination of the case. The excuse that the reason the deed was not filed was because of the appeal to the Supreme Court, is not a valid one. The deed was not only not filed within thirty days from the decree as provided therein, but it was delayed till after the expiration of thirty days from the return of the record from the Supreme Court, and until the case had been referred back to the master, and he was proceeding therewith. The deed could have been filed within the limited period upon such terms and conditions as would not only not have prejudiced, but have secured the rights of the estate, notwithstanding the appeal. It could have thus been done as safely as ' when subsequently filed before the master, or as it could be done now. Looking at the case as developed by the testimony, we are convinced the conclusion of the court to permit the estate, as 'proposed by the administrator in his answer,-to procure the necessary outstanding title and file deed for the land covered by the contract, with same effect as if the decedent' had been vested with the title at the time of malting it, was just and right, and it is to be regretted that the administrator did not seize the ' opportunity thus afforded, of taking advantage of it and of, thereby, reaping the benefit of the portion of the decree made in favor of the estate, by filing deed in compliance with it. At the time of the death of Gen. Blair, the title to a portion of the land agreed by him, by the option contract, to be conveyed, was in Frank P. Blair, 'his administrator and sole heir at law, and the equitable title to another portion thereof was in William ' Lytle, who by quitclaim deed, dated November 12,1895, reconveyed the same to him. But while he Avas thus permitted, he was not required, as an individual, to join with himself as administrator, in a conveyance, and thereby part with the title to his own as well as the estate’s portion ■ of the land, and having elected not to do so must run the risks and take the conse- • quences Avhatever they may be, ■ 'i ' The question remains, what portion of the land contracted to be sold shall, in accordance with the decree of the 5th of January, 1895, be ordered and directed to be conveyed by the administrator by final decree of specific performance. Manifestly it is only that portion thereof which the decedent owned at the time of his death, and which his administrator can be required by a decree of court to convey. As before stated, the first section of the decree authorized the administrator to procure the necessary titles and convey the whole of the land called for in the contract of sale. It was optional with him to do so or not as the interests of the estate might dictate. But not so as to the portion actually owned by the decedent; as to this, a conveyance by the administrator could be enforced by attachment or otherwise, and would not be optional on his part. The second section of the decree was intended to meet the very emergency that arose, to wit: The inability or failure of the estate to thus procure title and convey-the entire tract, and provided that in that event the specific performance should be confined to the portion owned by the estate, and that the purchase money to be paid be proportionably reduced. True, as claimed by respondent’s counsel, this was only to be done in case it became “ impossible” for the estate to convey “by reason of inability, to obtain title,” and the respondent claims in his answer and evidence such title could be conveyed. But the fact remains such conveyance was not filed as required by decree. The failure to file deed, which was optional, can properly be taken as evidence, either of inability or unwillingness to do so. What portion of the tract then did the decedent own ? The decree covers not only what he owned at the time the contract was made, but also what he subsequently acquired. If one agrees to seE land to which he does not have title his subsequent acquisition of title enures to the benefit of his vendee. It is claimed that decedent had arranged orally with William Lytle, to whom he had sold by articles of agreement one hundred and thirty-two acres - of the land in question, and with his son, Frank P. Blair, who was the owner of the portion thereof embraced within the lines of the Josiah Lambourne survey', that they should convey to him in case it was necessary in order to comply with the option contract. But, in our opinion, these oral ■ contracts did not vest title in the decedent. No ponsideration was paid, improvements made, or possession taken in pursuance of them. No such oral contracts were proved as would justify a chancellor in decreeing their specific performance. The decedent could not have enforced them in his lifetime, and his administrator being equally powerless to do' so, cannot be required by a specific performance decree to do so. The evidence does show, however, which the master seems to have overlooked, that by agreement in writing, dated November 14, 1887, the decedent repurchased from William Lytle a portion of the land previously sold him by articles of agreement. The notes of evidence state that it was for sixty-eight acres. The agreement was not produced at the argument, and has become lost or mislaid. The respective attorneys, however, upon their attention being called to it, admit the existence of such agreement; that it was offered in evidence; and in order to avoid the necessity and delay of again sending the case to the master to ascertain the quantity of land owned by the estate in accordance with these views, have agreed that, excluding from the land agreed to be sold by the option contract the balance or portion remaining in William Lytle, after deducting from his purchase the portion sold back to decedent as aforesaid, and the portion included within the lines of the Lambourne warrant, owned by F. P. Blair, there would remain thereof one hundred and two acres and ninety perches, described as in draft hereto attached, with the signatures of said attorneys appended. Inasmuch as William Lytle had but an equitable title to the land purchased by him, the agreement of November 14, 1887, which he evidently refers to in his testimony, and seems to recite in his quitclaim deed of November 12, 1895, would vest in William H. Blair valid and legal title to the portion of the land which it calls for, which is included within the lines of the Blair warrant, the legal title to which remained in William H. Blair, and that for the one hundred and two acres and ninety perches the administrator can now make title. From this the conclusion follows that the report of the master as to the quantity of land owned- by the estate and the proportion of purchase money to be paid therefor, is incorrect. We find from the testimony that, as before stated, the quantity of land owned by the estate is one hundred and two acres and ninety perches (a specific description of which will be found in the decree hereto appended), and basing the value of the entire tract of two hundred and seventy acres and one hundred and thirteen perches at $5,200, calculate and fix its value, or proportionate part of purchase money to be paid by petitioners therefor (without interest, as provided in the decree), at the sum of $1,974. But one question remains to be considered, which is the objection made by petitioners on account of the fact that the premises agreed to be conveyed being bound by the lien of a mortgage entered prior to the making of the option contract, title under this proceeding cannot be made clear of that incumbrance. We overrule this exception for two reasons : 1st. Because from the fact that we find that the purchase money to be paid is $2,562, instead of $1,200, as fixed by the master, the objection may be removed by the application of the same to the incumbrance. And 2nd. If not thus removed, we do not think petitioners can raise the question, for the reason that they are the applicants for the decree of specific performance. As we have hereinbefore explained, petitioners are entitled to receive under this proceeding all the title held by the decedent at the making of the option contract and which he subsequently acquired. The administrator cannot be required to make that title good. When it was found that the estate could not make a good title, clear of incumbrances, to petitioners, they had the right to elect to either accept the title to the extent that it could be made, as they did, or to rescind the contract and seek a remedy for its breach. But having elected to accept under the contract, they must take title in the best and most complete form in which it is possible for the administrator to give it to them. We are not informed as to the condition of the estate, whether solvent or not. Petitioners cannot demand of the respondent that which he cannot give them as administrator. But if they cannot be protected by the application of the purchase money under the order of the court, if there be any other remedy, by subrogation or otherwise, it will be their right and privilege to seek it-. To the extent that the foregoing views are in line with and responsive to the various exceptions, we sustain the same, and' so far as in opposition thereto overrule them, without considering them in detail. And note an exception both to petitioners and respondent. DECBEE. Therefore now, March 27, 1896, in accordance with the foregoing opinion, it is ordered, adjudged and decreed as follows, idz: 1. That within five days from the filing hereof said Frank P. Blair, administrator of William H. Blair, deceased, shall execute and file in the orphans’ court of Centre county a good and sufficient deed conveying to the petitioners, the Bellefonte Furnace Company, their successors and assigns, in fee simple, all that certain tract or piece of land situate in Half Moon township, Centre county, Pa., bounded and described as follows, viz: Beginning at the north corner thereof, thence by land of Mat-tern brothers south forty-one degrees and fifteen minutes east one hundred and seventy-three and five tenths perches to post, thence by land formerly of William Lytle, now of F. P. Blair, ■south fifty-one degrees west one hundred perches to post, .thence ■by line of Josiah Lambourne warrant, owned by F. P. Blair, ■north fifty-one degrees and fifteen minutes west one hundred and seventy-three and five-tenths perches to post, thence by land of S. T. Gray north fifty-one degrees east eighty-nine and twenty-five one hundredth perches to place of. beginning, containing .one hundred and two acres and ninety perches. Said convejrance to be made excepting, reserving and subject to all the rights and privileges mentioned and reserved to William H. Blair, his -heirs and assigns, in the said option contract of August 18, 1887, entered into and given by him to the said Bellefonte Furnace Company, excepting the sum of money for which said furnace company shall be reimbursed shall be the said sum of $1,974 instead of $5,200, as therein provided. Deed to be delivered to petitioners only upon the order of said court. 2. That within five days from notice of the filing of said deed the Bellefonte Furnace Company, the petitioners, shall pay into the said orphans’ court of Centre county the sum of $1,974, without liability to costs or poundage, subject to the order of court, the same to be retained until the incumbrances upon the premises in question are removed, and the equities arising out of the contract in question shall be fully adjusted by the court. Said money to be subject to the order of the court, and appropriated or paid out only upon its order, after notice to parties interested and hearing had. 8. .Nothing herein contained shall be taken or construed as in any manner taking from the said Beliefonte Furnace Company, their successors or assigns, as grantees in said option contract, or as affecting, an} right of action at law or in equity, which they may have for or on account of any breach thereof, as set forth in the decree of January 5, 1895. 4. As provided in the said decree, all costs, including master’s fees, incurred subsequent thereto, shall be paid by the estate of W. H. Blair, deceased. Frank P. Blair, administrator and heir at law of Gen. Wm. H. Blair, appealed from this decree. Error assigned among others was decree of the court. If an option is given, which is to be accepted by payment within a given time, then the time of payment is certainly essential; in fact, payment is a condition precedent to the vesting of any right in the vendee: Pomeroy on Contracts, sec. 387; Westerman v. Means, 12 Pa. 97; Fessler’s App., 75 Pa. 483. If specific performance be directed it should be for all the land described in the contract and not for one hundred and two acres and ninety perches only. A much stronger suit is required to maintain than to decline specific performance: Datz v. Phillips, 137 Pa. 203; Foster’s Est., 23 W. N. C. 271; Porter v. Dougherty, 25 Pa. 405; Jones v. Jones, 11 Phila. 559; Geissler v. Scott, 13 Leg. Int. 212; Walsh’s Est., 4 Kulp, 178; Irvin v. Bleakley, 67 Pa. 24. Equity may enforce specific performance of contract though vendor had no title at the time of sale if he can make a good title at time of decree: Mason v. Caldwell, 48 Am. Dec. 330; Seymour v. Delancy, 15 Am. Dec. 270; Convers v. Vanatta, 24 Pa. 257; Townsend v. Lewis, 35 Pa. 125; Ley v. Huber, 3 Watts, 367; Gans v. Renshaw, 2 Pa. 34. Admitting, for argument, that decedent was in fault, that even a good legal tender was made of the purchase money, we still maintain that decedent’s estate is entitled to interest from the time appellee went into exclusive occupation of the land: Pomeroy on Contracts, Specific Performance sec. 428; Smith v. Byres, 152 Mass. 144. All the costs should be placed upon appellee. Where a misrepresentation is made as to quantity, though innocently, the purchaser is entitled to have what the vendor can give, with an abatement out of the purchase money for so much as the quantity falls short of the representation: Hill v. Buckley, 17 Ves. 394; Erwin v. Myers, 46 Pa. 96. A court of equity ought not to decree specific performance of a contract to the letter, where from change of circumstances, mistake or misapprehension, it would be unconscientious so to do. The court may so modify the agreement as to do justice as far as circumstances will permit, and refuse specific execution unless the party seeking it will comply with such modifications as justice requires: Mechanics’ Bank of Alexandria v. Lynn, 26 U. S. 374.
178 Pa. 601Platz v. McKean Township (1897)Affirmed
Negligence — Roads—Evidence—Effect of variance between allegata and probata when not misleading. In the statement of claim filed in an action of trespass for personal injuries it was averred that the accident took place on “a public or township road . . . leading from Erie to Middleboro.” The evidence showed that the injury was not received between Erie and Middleboro. Counsel for the defendants conceded that they were not misled by the statement of claim. Held, that the defendants were not prejudiced by the alleged variance, and were not entitled to have a motion for a nonsuit sustained. Evidence — Witness—Instruction of court-upon weight of interested and disinterested witness. The fact that a witness has an interest in the case may and should be considered by the jury in determining what weight shall be given to his testimony, but this is no ground for an instruction from the court that the testimony of a disinterested witness is entitled to more weight than his. If a witness in a former trial or elsewhere has made statements contradictory to his testimony at a second trial, such statements affect his credibility as a witness, but they do not authorize a binding instruction for the defendant. Practice, O. P. — Gharge of court. ■ It is no ground for reversing a judgment on a verdict for the plaintiff in an accident case, that the trial judge in instructing tire jury used facts assumed but not purporting to have been shown in the testimony, merely by way of illustration as to legal negligence, although the facts assumed may have conformed to a theory of the case urged by one of the parties. Negligence — Notice of condition of highway — Supervisors—Municipal corporations. The individual knowledge of officers or agents of a municipal corporation, who in such capacity have powers or duties conferred upon them with reference to a given matter, is the knowledge of the corporation, and notice to such officers or agents is notice to the corporation, and the corporation is bound or affected by such knowledge or notice. Notice to a supervisor of the dangerous condition of a public road is notice to the township. Evidence — Opinion of witnesses — Dangerous condition of road. Where the description of a witness of the condition of a sluice in a public road is intelligible and easily comprehended it is proper to reject the opinions of witnesses respecting the safety of the sluice. Husband and wife — Measure of damages to husband for injury to loife. In an action by a husband for an injury to a wife, the husband is entitled to recover the moneys he has expended or become liable to pay for the medical care and attendance upon his wife during her illness, and for the loss of her services while unable to attend to her domestic duties ; and in such a case the term “ services ” implies whatever of aid, assistance, comfort and society the wife would be expected to render to or bestow upon her husband under the circumstances and in the condition in which they may be placed, and it is immaterial that services in the ordinary sense were not rendered at all. Negligence— Township road — Bridge. In an action against a township to recover damages for personal injuries caused by an alleged defect of a bridge over a sluice on a road, there was evidence that the bridge was dished, and there was also evidence that the horse driven by plaintiff’s wife broke through a plank because of a defect in it. Held, that it was not improper for the court to refer to the dishing condition of the bridge.
178 Pa. 612Powell v. Derickson (1897)Affirmed
Appeal, No. 341, Jan. T., 1896,’ by plaintiffs, from judgment of C. P. Crawford Co., Feb. T., 1894, No. 175, on verdict for defendants. Assumpsit on certificate of deposit. Before Cels well, P. J. At the trial it appeared that in 1867 Cyrus Kitchen and others organized a general copartnership under the name and style of the M'eadville Savings Bank for the purpose of carrying on a general banldng business in the city of Meadville, Pa., and entered into and signed articles of association therefor, the interests of the members being represented by shares of stock. On January 20, 1877, A. P. Ingraham, one of the shareholders, assigned five shares of the stock to D. V. Derickson, which were duly transferred on the books of the association in accordance with its articles. These shares were held by him until the 21st day of July, 1891, when he died testate, and letters testamentary upon his estate were issued to C. M. Derickson and G. M. Derickson. The bank continued to do business until the 13th of January, 1894, when it closed its doors, and on January 20,1894, made an assignment for the benefit of its creditors. In the meantime, on September 3, 1886, William Gibson deposited in said bank $10,000, receiving therefor a certificate of deposit. On July 12, 1887, he died intestate, and letters of administration upon his estate were issued to Watkin G. Powell and Patrick Clark. On July 18,1890, the bank made a partial payment to Gibson’s administrators on his certificate of deposit, and issued another certificate for $6,400, balance due. This certificate was retained by the administrators until October 10, 1893, more than two years after the death of D. Y. Derickson, at which time they sent it by their attorney, Thomas Roddy, to the bank, who received from Cyrus Kitchen, the president, acting for the bank, $1,672, and a new certificate of deposit in the name of the administrators for $5,400. Other facts appear from the opinion of the Supreme Court. Cyrus Kitchen was called as a witness for the plaintiffs to prove the transfer book and the minute book of the bank. The court on objection excluded Iris testimony on the ground that he was incompetent to testify to matters occurring in the lifetime of D. Y. Derickson, and sustained the objections to the admission of the books, granting exceptions and sealing bills for the plaintiffs. [1, 2] Witness was then shown the certificate of deposit of October 10, 1893, and testified that he was in the bank at the time it was given, and remembered the circumstance of giving it; that it was given in lien of a certificate of a former date which was surrendered and canceled, and that no money was paid for it at the time. He was then asked: “ Q. What were these certificates for ? A. They were for money, the balance of a $10,000 deposit.” Mr. Mehard, of counsel for defendants, objects. We do not concede ’Squire Kitchen’s competency to testify to anything that occurred prior to the death of D. Y. Derickson. Mr. Haskins, of counsel for plaintiffs: I asked him if any money was put in at the time. He says, “No.” I ask him if the money was theretofore deposited. I do not now ask when. Mr. Mehard: Their allegation is that the money which was deposited was deposited in 1886. That is the allegation of their declaration. And ’Squire Kitchen is not competent to testify that it was money theretofore deposited unless it was money deposited since the death of D. Y. Derickson. Mr. Haskins : State whether or not it was for money theretofore in the bank. You need not tell when it was deposited. Was it money that was in the bank after the death of D. Y. Derickson and before the date of the issuing of this certificate. Mr. Mehard objects to ’Squire Kitchen stating anything' except what actually occurred since the death of D. Y. Derickson. By the Court: It appearing to be admitted or heretofore proved that the certificate bearing date October 10, 1893, was given in lieu of a certificate, bearing prior date, and it also appearing that the certificate bearing a prior date, and surrendered October 10,1893, bears date prior to the death of D. Y. Derick-son, deceased, objection to the question is sustained and the offer overruled. Seal a bill for the plaintiffs. Exception. [3] W. G. Powell, one of the plaintiffs was asked this question: “You may state whether you knew whether Major Derickson was a member of the bank or not.” Mr. Mehard objects to the witness testifying as to a state of facts existing in the lifetime of Major Derickson. Mr. Haskins : The objection is probably well taken, that is, if it is conceded — as I understand the court to hold — that he is interested so that he is not a competent witness. But we insist that the witness is not interested in a sense that he cannot testify. Therefore we insist upon the question. By the Court: We will have to sustain the objection and seal a bill for the plaintiffs. Exception. [4] Patrick Clark was called and examined by plaintiffs. Mr. Mehard on cross-examination: I simply want to show his familiarity with Crawford county. Mr. Haskins: For what purpose ? Mr. Mehard: I will indicate my purpose by asking him now if he was not acquainted with Major Derickson. Mr. Haskins objects. The object of all this is to ask the jury to infer that these men must have known of the death of D. V. Derickson. That is altogether unimportant and is not relevant, if they did not know that he was a member of the bank, therefore they .have no right to go into that. By the Court: There was no examination in chief reaching back to the time of D. V. Derickson’s death. Mr. Mehard: We wish to know whether he didn’t know of the fact of D. V. Derickson’s death. Mr. Haskins: That is not competent. No inference can be drawn from that without he knew at the same time that he was a member of the bank. By the Court: That is another question. We will allow you to ask whether he knew of his death. Mr. Haskins asks exception. By the Court: Seal a bill for the plaintiffs. Exception. “Q. Yon heard of Major Derickson’s death, did you not? A. I suppose I did.” Mr. Haskins desires to add the further objection that it is also not cross-examination. By the Court: You asked whether he knew of any changes in the partnership. It might have been followed by another question asking him whether or not he did not know that he was a member of the partnership, but counsel saw proper not to do so. I am not saying now that it would have been competent. Mr. Haskins: Your honor gives me the exception on the ground that it is not cross-examination also. By the Court: Yes. Seal a bill for the plaintiffs. Exception. [5] The court charged in part as follows: The deliberation with which this trial has proceeded has enabled me to place in writing the greater part of.what I shall have to say to you at this time. In 1867 or 1868 Cyrus Kitchen, A. P. Ingraham and others organized a copartnership under the name and style of the Meadville Savings Bank for the purpose of carrying on a banking business. Articles of association were then prepared and signed by those entering into and becoming members of the partnership. These articles of association, supplemented by the general law governing partnerships, became the law of this association. The business then commenced, continued, it appears, under the terms of the articles of association until the bank failed and closed its doors on the 13th of January, 1894. A copy of these articles of association has been offered in evidence, and you will be permitted to take it with you to your consulting room. Its terms have been stated and referred to so often and so much in your presence that it is unnecessary to recite it at length. From the evidence it appears that it has remained unchanged, and as provided therein, new shareholders or partners have been taken into the business from time to time, and persons who were partners or shareholders therein have retired from time to time. In January, 1877, Mr. Derickson, defendants’ testator here, purchased the interest of Ingraham, consisting of five shares of stock of the par value I believe of $100 each, which interest was transferred to him on the books, and under the terms of the articles of association he was accepted and approved as a member of the copartnership as it then existed. He continued to hold the interest then acquired or gained until his death, the 21st day of July, 1891. The defendants here, C. M. Derickson and G. M. Derickson, it is conceded, are the executors of the last will and testament of Mr. D. Y. Derickson, deceased. While these articles of association were a law to the partners, that is to those signing or assenting thereto, they were not a law in all respects to those dealing or having business transactions with them. While as between themselves, members could retire and new members could be admitted without any change in the partnership or the books, further than to change the names of the owners of the shares therein, as to outsiders, creditors of those parties, every change in the ownership of shares, whether by written assignment thereof or death, worked a dissolution of the partnership as it existed at the time of the transfer or death; and the business' thereafter conducted by the surviving or new members, was a new partnership, composed of persons in part different from those who composed it prior to the transfer or death. This is true notwithstanding the fact that the name under which they continued to operate remained unchanged from the time of the inception of the business in 1867 to the time of the failure. This is a general statement of the law applicable to the manner of doing business. To what extent this general statement of the law may be modified by particular facts we will call your attention hereafter. In the bank, owned and conducted by the persons then working under these articles of association, the plaintiffs’ intestate, Dr. William Gibson, then in life, on the 3d day of September, 1886, deposited funds to the amount of $10,000, taking therefor Avhat is called a certificate of deposit bearing said date and signed by the acting president or agent for the partners, Gyrus Kitchen, which certificate was due and payable in one year with interest at the rate of four per cent per annum. On October 21, 1887, it appears this certificate issued to Dr. Gibson was surrendered to the bank and a new certificate was issued for $10,400, being the original principal deposited, with one year’s interest at four per cent added. Dr. William Gibson, the original depositor, having died in the meantime, this -certificate was issued to W. G. Powell and P. Clark, his administrators, and was due and payable in one year after date with interest at the rate of three and one half per cent per annum, which certificate was also signed by Cyrus Kitchen as president. Afterwards the bank, or those conducting the business, paid on account of this certificate all interest accrued thereon to July 18,1890, and $4,000 on account of the principal. According to my notes the payment of $4,000 on the principal was made on June 6,1889, and was indorsed as a credit on the back of the certificate then held by the administrators of Gibson. All of these certificates have been offered in evidence and you will also have the privilege of taking them out and examining them, and their dates, and the indorsements thereon. On December 11,1890, the certificate then held by plaintiffs was returned to the bank and a new certificate was issued to them calling for $6,400,'with interest from July 18,1890, signed by W. R. McCoy, acting as cashier of the bank, and therefore as agent for the parties then doing business. This certificate was payable to the administrators of Gibson with interest at the rate of three and one half per cent per annum on return of the certificate properly indorsed by them. I call your attention to this certificate for the reason that it is the one last issued prior to the death of Mr. D. Y. Derickson, the defendants’ testator. From 1877 to this time and to the time of his death he had been and was a member of this partnership, or rather a member of the several partnerships which had been conducting this banking business. He was such a member when the original deposit was made by Gibson in 1886, and when each new certificate was issued, including the one last referred to and dated the 11th of December, 1890. It is contended by the plaintiffs here, and as I understand it, admitted by the defendants, that D. Y. Derickson, deceased, was on the 11th day of December, 1890, liable to the plaintiffs for the amount called for by this certificate, and that he so remained liable until the time of his death; and also that after his death his estate remained liable until the 10th of October, 1893. Having died on the 21st of July, 1891, he could not thereafter himself, of course, remain a member of any partnership. His death severed his connection with the partnership. But it did not release his estate from liability for anything for which he was liable at the time of his death. Therefore if the plaintiffs had retained the certificate bearing date the 11th of December, 1890, and had brought suit upon it, so far as anything has been disclosed by the evidence here the defendants would have had no defense to its payment. Plaintiffs, however, did not retain this certificate. [On the 10th day of October, by their attorney or agent, Mr. Roddy, they sent this certificate to the place where the parties then operating under these articles of association were doing business — and we presume at the old stand — under the name of the Meadville Savings Bank, where Mr. Roddy received from them $1,000 and some interest, surrendered the old certificate dated December 11, 1893, and received a new one for $5,400, with interest from July 18,1893, signed by Cyrus Kitchen, president, payable as was the last one to the administrators of William Gibson, with interest at three and one half per cent per annum on return of the certificate properly indorsed by them. Mr. Kitchen says this certificate was given in lieu of and for the balance due, after deducting payments, on the one dated December 11, 1890. This transaction is the important one in the controversy you are now to determine.] [17] The defendants say that by reason of what then and there took place on the 10th of October, 1893, under the facts in connection with this banking business as they then existed, the estate of D. V. Derickson, deceased, then ceased to be liable to the estate of William Gibson, deceased. As reason for this contention on the part of the defendants that the estate of D. V. Derickson, deceased, ceased to be liable to the plaintiffs on the 10th day of October, 1893, defendants allege, and they have offered in support of their allegations evidence that there were sundry transfers of shares in this business after the death of D. Y. Derickson, July 21, 1891, in consequence of which and the approval of the acting board of directors of the bank the membership was changed, and that by reason of this as well as by reason of the death of Mr. Derickson, under the law the partnership to which Mr. Derickson belonged at the time of his death became dissolved, and that on the 10th of October, 1893, a new and different partnership composed in part of new and different members was then doing business as the Meadville Savings Bank. That ten shares of stock held by some Cussewago Lodge, or some order, I have not the name of it exactly, were transferred to one Stolz, both of which transfers were approved by the board of directors after the death of Mr. Derickson and on January 8, 1892. That on May 20, 1893, fifty-three shares held by Nancy J. Loveridge and others were transferred or surrendered to the bank; that on August 2, 1893, ten shares held by one Beman were transferred to Mr. Kitchen, both of which transfers were approved as required by the articles of association, by the board of directors, the approval of the latter having been given January 20, 1893. The defendants claim that as to creditors and as to these plaintiffs by reason of the death of Mr. Derickson the partnership existing at the time of and prior to his death became dissolved; that by reason of the subsequent changes in the membership a new and different partnership resulted. And this we instruct you is the law so far as these plaintiffs are concerned, if they had notice either actual or implied of the facts. It further appears that the different old certificates issued to William Gibson or to his administrators, all of those certificates in fact, offered in evidence and issued prior to and bearing date of October 10, 1898, were produced here before you by Mr. Kitchen, the late president of this bank, who testified that he procured them in the vault or safe of the bank among the papers or files of the bank. The defendants allege that these certificates were surrendered to the bank for cancelation; and it appears, I believe, by the face of the certificates that they were canceled or stamped paid. That by the surrender and cancelation on October 10, 1898, of the certificate dated December 11, 1890, and the part payment thereof and the issue by the bank, as it then existed, with a new or changed membership, of a new certificate for the balance, and the acceptance of such new certificate by the plaintiffs, ended the liability of the defendants on the old certificate of December 11, 1890; that thereby such old certificate was paid and that thereafter the plaintiffs held, and held only, those bound by the new certificate, that is the partnership as it existed at that time, October 10, 1893. In other words, that there had been what is termed in law a novation, that is a voluntary substitution of a new or different security for the old security. And we say to you as matter of law, if this was done intelligently, with knowledge of the facts, the defendants were released by the issuing of that new certificate and its acceptance. In answer to this allegation of the defendants, plaintiffs’ counsel allege and contend and ask you to find as a fact that they, the plaintiffs, had no knowledge of any change in the membership of the association before or after the death of Mr. Derick-son; that neither they nor their intestate, Dr. Gibson, had knowledge on or prior to October 10, 1893, that Mr. Derickson ever was a stockholder, and that by reason of this want of knowledge and ignorance on their part as to the membership of the banking association, they were not affected by changes in the ownership of shares, and that they did not voluntarily surrender an old for a new security. They alleged that so far as the plaintiffs are concerned they have now the same remedy, the same security they had when the money was first deposited in 1886, that is the Meadville Savings Bank and the individuals who composed that partnership. [The defendants here, D. V. Derickson’s executors, through their attorneys, argue and expect you to find as a fact that both Dr. Gibson in his lifetime and his administrators after his death and prior to the death of Mr. Derickson, had knowledge of the membership of Mr. Derickson in this association. That is, that you have a right to infer such knowledge. There is no direct proof of the fact of such knowledge or want of such knowledge by any witness competent to testify to the fact. Gibson was long since dead, and his administrators, as we have ruled, are incompetent to testify to anything occurring or any fact existing prior to the death of Derickson, for the reason that Mr. Derickson’s lips being closed by death the law closes the lips of the plaintiffs, the other parties to this transaction as to anything which occurred or any fact which existed prior to the death of Mr. Derickson.] [19] [While there is no direct proof of knowledge or want of knowledge by the plaintiffs or either of them prior to the death of Mr. Derickson, yet the history of this series of transactions between them and the bank is in evidence. And if from this history or any evidence in the case you can reasonably infer knowledge by the administrators of Gibson prior to the death of Mr. Derickson of his membership, you may do so. If you find that they had such knowledge then we say to you as a conclusion of law that they were bound to take notice of Mr. Derickson’s death,] [18] and that by his death the partnership as it existed at the time of his death became dissolved, and that if the business was thereafter carried on they were bound to know that it was being conducted not by the old but by a new partnership operating under the old name, of which Mr. Derickson’s estate was not a member. So far as the death of Mr. Derick-son is concerned the law imputes to the plaintiffs knowledge of that fact without any proof. If, with knowledge of these facts they, the plaintiffs, voluntarily surrendered for cancelation and destruction the obligation they held and took a new one from different parties in satisfaction thereof, then they cannot recover in this action. So if you find from the evidence that plaintiffs had knowledge of the transfer of shares after Mr. Derickson’s .death, thereby working a change in and a new partnership prior to October 10,1898, and with knowledge of these facts voluntarily accepted in lieu of the old certificate a new obligation of a new partnership, composed in part of new or different members, then we say to you that the plaintiffs cannot recover in this action. Upon this point, however, you have the testimony of both plaintiffs, Mr. Powell and Mr. Clark, that after Mr. Derickson’s death and prior to October 10, 1893, they acquired no knowledge of any transfers of shares, and consequently had no -knowledge of any new partnership caused or arising by reason of transfers of shares. You have also the testimony, as I remember, of the plaintiffs that between the time of the death of Mr. Derickson and the time when they surrendered the old certificate — that is between July 21, 1891, and October 10, 1893 — they did not learn that Mr. Derickson in his lifetime had been a shareholder in the bank. [If they had such knowledge, therefore, you will probably conclude that they acquired it before the death of Mr. Derickson,] [26] although all the evidence throwing light on this question is for you. It is your duty, gentlemen, to determine the facts in controversy. You find facts from evidence, but not without evidence. Facts may be found from direct and positive testimony or proof to the effect that they exist; or facts may be found by inference from the existence of other facts when the relation between the two is such that the one is necessarily the concomitant of the other. There can be no inference however, from facts not shown positively or negatively to exist. It is only where a fact has been established that another can be inferred from it. Now what are the facts here? What knowledge had these plaintiffs that Mr. Derickson in his lifetime was a member of this banking firm ? Can you fairly infer such knowledge on the part of the plaintiffs ? If they had.such knowledge on the 10th day of October, 1893, then what occurred at that time ? With what mind were the papers changed on that day? Was there an intention on the part of the plaintiffs with a knowledge of the facts affecting their rights to substitute a new security for the old one ? Did a novation under these circumstances take place at that time ? If so, and the old certificate was surrendered to be canceled, to be destroyed, to be thereafter void and of no validity, then the plaintiffs cannot recover in this • ease. If on the other hand plaintiffs had not on the 10th day of October, 1893, knowledge of the facts affecting their rights, and in ignorance thereof accepted one paper for another without knowing that by so doing they were accepting a different security from that which they had, then we say to you that the plaintiffs are entitled to recover in this case. [We call your attention to the fact that on the 10th day of October, 1893, the plaintiffs were not present at the bank; they were represented there by their agent or attorney, Mr. Roddy. What was there done in reference to the certificate of December 11, 1890, was done by Mr. Roddy as the agent of the plaintiffs. While the plaintiffs were not there at that time and were represented only by their agent, it was their duty upon learning what had there been done to either ratify it or disaffirm it. If Mr. Roddy acted without authority, or exceeded his authority, in surrendering the old certificate and taking a new one, it was the duty of the- plaintiffs promptly upon learning of this fact to advise the bank that they did not so desire and to make their claim upon the old certificate.] [20] Counsel upon both sides have requested us in writing to instruct you upon certain propositions. The plaintiffs here through their attorneys ask us to instruct you. [First. That by the articles of copartnership and the evidence offered in this case, the persons doing business under the name and style of the Meadville Savings Bank constituted a common law copartnership, and each member became individually liable for the debts of the said firm. Our answer is this : Not purely a common law partnership, but members thereof became liable to creditors as in a common law partnership.] [22] [Fourth. That the taking by the plaintiffs on the 10th day of October, 1893, of the last certificate, identical in form and style of the former one from the Meadville Savings Bank, less the amount then paid subsequent to the death of the said D. V. Derickson did not thereby release the estate of said Derickson, it not being a payment of the original debt or a novation. Our answer is this: This question with all the evidence bearing thereon is submitted to the jury with the instructions bearing thereon, for them to determine.] [23] [Fifth. They ask us to instruct you that at the time of the receiving by the plaintiffs of the certificate of date of October 10, 1898, from the Meadville Savings Bank, of the balance remaining unpaid of the original deposit, it having been shown that the same officers as theretofore were still doing business without change and without change of name or business of said copartnership, or without any notice or information being given to the plaintiffs of any change in said copartnership at that time or any other time, by death or otherwise of any of its members and copartners. And it further appearing that the plaintiffs’ administrators or their agent had no knowledge of any change in said copartnership, that in such cases the receiving and taking of said certificate was not a payment of the original debt or a novation. Our answer is this : If the facts were as here assumed we would affirm this point; but we will not assume the facts to be as here stated and therefore refuse to affirm this point.] [24] [Sixth. That the onus is on the defendants to show that the acceptance of the present certificate at that time was a discharge of the old indebtedness, and on failure so to show on their part the verdict of the jury must be for the plaintiffs. Our answer is that as applicable to the facts in this case this point is refused. It is the duty of the jury to take into consideration all the evidence bearing upon the acceptance of the new certificate, whether such evidence has been introduced by the plaintiff or by the defendants. If the evidence of the plaintiffs does not show such acceptance then the burden is on the defendants to show it. But you should consider all the evidence bearing upon the question.] [25] The defendants have also made requests in writing. [First. That when D. V. Derickson died, his relation as a partner in the firm known as the Meadville Savings Bank ceased, and his estate or his executors were not substituted for him as a partner in said firm. Answer: That point is affirmed.] [27] [Second. If the jury find from the evidence that the other members of said firm, whether alone or in conjunction with new members introduced after the death of D. Y. Derickson, continued to carry on the business of said firm, and as continuing, not liquidating partners they gave a new certificate of deposit and lifted and canceled the old one, it showed the intention upon their part to end the indebtedness of the old firm, and to make it a debt of the new one. Answer: Having in view the articles of association and tbe methods of doing business by the bank, as shown by the evidence, this point is affirmed.] [28] [Third. If the plaintiffs, through their agent, with knowledge actual or imputed of the death of D. Y. Derickson, and of a change thereby resulting in the firm as constituted in his lifetime, surrendered the old certificate of deposit and accepted a new one from the new firm, this is evidence strongly tending to show their consent to cancel the debt of the old firm, and to accept in lieu thereof the certificate of the new firm. Answer: This point is affirmed.] [29] [Fourth. If the jury find from the evidence that the firm as constituted on the ■ 10th day of October, 1898, received the old certificate and gave therefor part cash and a new certificate for the balance, and marked the ’old certificate “ paid,” it is strong, clear evidence that it was the intention of said firm to absolutely end the old certificate. Answer: That point is affirmed.] [30] [Fifth. If the jury find from the evidence that at that time the plaintiffs or their agent accepted part cash and a new certificate for the balance of' said old certificate, and at same time receipted for the amount of the old certificate, principal, and interest, it is strong, clear evidence of his or their intention to end the existence of the old certificate, and to make substitution therefor of the new one. Answer: That point is affirmed, as explained in the general charge 'touching the duty of the plaintiffs in case their agent acted without or exceeded his authority in taking the new certificate.] [31] [Sixth. If the jury find from the evidence that Otto A. Stolz became a partner in said firm subsequent to the death of D. Y. Derickson, and that the business of the bank was continued and carried on by the firm as constituted including Mr. Stolz; and that in the regular course of business of said firm a new certificate was issued on October 10, 1893, for the old one surrendered for cancelation, Otto A. Stolz became bound by such new certificate and liable for the debt thereby represented. And if this be so it emphasizes the inference of a novation— that is that D. Y. Derickson was released. Answer: Having in view the articles of association and the methods of doing business by the bank as shown by the evidence, and in the absence of other evidence, this point is affirmed. Except the latter clause thereof, which we affirm only on condition that the plaintiffs had knowledge of the membership of Otto A. Stolz.] [82] At 10:48 A. m., Thursday, January 23, 1896, being the following morning, the jury appeared and asked further instructions upon the following point, submitted to the court in writing by the foreman of the jury. “Your Honor, If the court please we would like to ask: If in the case of D. Y. Derickson’s death, was his estate released from liability in this case according to law ? Can your Honor give us any light on this point ? ” By the Court: We instructed you, gentlemen in our charge that the plaintiffs allege, and that the defendants do not deny, that Mr. Derickson was liable for the plaintiffs’ claim here as a partner in the Meadville Savings Bank as it then existed at the date of the last certificate, that is on the 11th day of December, 1890. We also stated that there is no question as to the liability of Mr. Derickson for the balance of that deposit at the time of his death. That if his estate became afterwards released it was because of what occurred at the time the last certificate was issued, that is on the 10th of October, 1893. His estate was liable up-until that time. [On that day, as you learned from the evidence, and we call your attention to it, the plaintiffs here, the administrators of Dr. Gibson, through their attorney or agent, Mr. Roddy, brought the certificate dated December 11, 1890, to the bank and surrendered it to the bank, receiving $1,000 on account of the principal, and some interest, accepting a new certificate for the balance, $5,400, with interest from July 18, 1893, as I remember. We instructed you that-if at that time plaintiffs had knowledge that Mr. Derickson had been a member of this partnership, and, having that knowledge, that they were bound to take knowledge of the fact of his death, and they accepted this new security knowing that he had been interested in the firm and had died, that they voluntarily accepted the new certificate instead of the old certificate and surrendered the old certificate for cancelation, that that would be a novation, You would be warranted in finding from that a verdict for the defendants if you find the facts in that way.] [21] Verdict and judgment for defendants. Plaintiffs appealed. Errors assigned among others were (1-5) rulings on evidence, quoting the bill of exceptions; (17-32) above instructions, quoting them. The defense set up is ■that the transaction of October 10,1893, constitutes a novation. This depends upon the intention of the parties to the transaction at the time: Kemmerer’s App., 102 Pa. 558; Fleming v. Parry, 24 Pa. 47; Weakly v. Bell, 9 Watts, 273; Hart v. Boller, 15 S. & R. 162; 16 Am. & Eng. Ency. of Law, 868; Walstrom v. Hopkins, 103 Pa. 118; Brown v. Scott, 51 Pa. 357; Clark v. Brooks, 19 W. N. C. 333. In case of deceased partner, a creditor does not lose his right -against the estate of such partner unless there is evidence of intent to abandon his recourse on such estate: 16 Am. & Eng. Ency. of Law, 908; Collier’s Executors v. Leech, 29 Pa. 404. Unless a note from remaining partners is received by the -creditor under an express or implied understanding that it is taken as payment, the liability of prior firm is undisturbed: Shamburg v. Ruggles, 83 Pa. 148; Christy v. Sill, 131 Pa. 492; Riegel’s App., 16 W. N. C. 221; Bernard v. Torrance, 5 Gill & J. 383; Kimberly’s Appeal, 7 Atl. Rep. 75; Hill v. Voorhies, 22 Pa. 68; Potter & Colfelt v. McCoy, 26 Pa. 458; Estate of Davis & Desauque, 5 Wh. 530; Hartley v. Kirlin, 45 Pa. 49; Newcomet v. Brotzman, 69 Pa. 185; 1 Addison on Contracts, sec. 109; Parsons on Partnerships, 409; Mason v. Wickersham, 4 W. & S. 100. The refusal to permit Watkin G. Powell or Dr. Clark to testify to anything that had occurred before the death of Mr. Derickson was error: Smith v. Hay, 152 Pa. 377; Dixon v. McGraw, 151 Pa. 98; Braine v. Spalding, 52 Pa. 247; Struthers v. Kendall & Son, 41 Pa. 214; Scott v. Wells, 6 W. & S. 367; Leith v. Bush, 61 Pa. 395. Mr. Kitchen was one of a number of the surviving partners in this bank against whom judgment had already been obtained by these plaintiffs for this debt, and was a competent witness •for the plaintiffs for all relevant purposes: Collier’s Executors v. Leech, 29 Pa. 404. The errors in the charge raised in specifications of errors Nos. 17 and 21 inclusive consists in giving too much prominence to the defendants’ evidence, in ignoring the evidence of the plaintiffs, in instructing the jury that they might find a fact, on which the court made the case turn, upon inference when there was no evidence from which such fact might be inferred : Bank of DuBois v. Bank of Williamsport, 114 Pa. 1; Griffee v. Griffee, 173 Pa. 434. The court committed no error to the plaintiff’s injury in rejecting the testimony of Cyrus Kitchen as to matters that occurred before the death of D. V. Derickson: Porter v. Wilson & Kelly, 13 Pa. 641; Hogeboom v. Gibbs, Sterritt & Co., 88 Pa. 235; Alcorn’s Exrs. v. Cook, 101 Pa. 209. The court committed no error in rejecting the testimony of the plaintiffs themselves as to matters which occurred before the death of D. V. Derickson: Seip v. Drach, 14 Pa. 352; Grier v. Huston, 8 S. & R. 403; Fritz v. Thomas, 1 Whar. 66; 2 Williams on Executors, 6th Am. ed. (1771-1774); Crosse v. Smith, 7 East, 258; Conrad v. Keyser, 5 S. & R. 370; Meason v. Kaine, 63 Pa. 335; Miller v. Frazier, 3 Watts, 456; Kuester v. Keck, 8 W. & S. 16; Catawissa R. R. v. Armstrong, 49 Pa. 186. It will he borne in mind, moreover, that the stockholders of this bank were not silent, secret or dormant partners. Their situation was that of open partners with the rights and privileges as well as the liabilities of such: Deford & Co. v. Reynolds, 36 Pa. 332; Shamburg v. Ruggles, 83 Pa. 148; Christy v. Sill, 131 Pa. 504. When the plaintiffs, with the knowledge of the facts, surrendered for cancelation the evidence of the old firm’s debt, i. e., the certificate of deposit, and accepted in lieu thereof an obligation of the new firm, the clear implication is that both parties to this transaction intended to substitute the new certificate for the old one; and it would follow as a necessary conclusion that the old indebtedness was ended and that the estate of D. V. Derickson was discharged: Hart v. Boller, 15 S. & R. 162; Estate of Davis and Desauque, 5 Wh. 530; Weakly v. Bell & Sterling, 9 Watts, 273; Mason v. Wickersham, 4 W. & S. 100; Stone v. Miller, 16 Pa. 456; Collier’s Executors v. Leech, 29 Pa. 404; Evans v. Drummond, 4 Esp. 89; Reed v. White, 5 Esp. 122; Hart v. Alexander, 7 Car. & P. 746; Bedford v. Deakin et al., 2 Barn. & Ald. 212; Thompson v. Percival, 5 Barn. & Ald. 241; Spenceley v. Greenwood, 1 Fos. & Fin. 297; Bilborough v. Holmes, L. R. 5 Ch. D. 255; Arnold v. Camp, 12 Johns. 409; Parsons on Part., 4th ed. sec. 326.
178 Pa. 631Earley v. Mutual Fire Insurance (1897)Affirmed
Appeal, No. 5, May T., 1896, by defendant, from' judgment of C. P. Daupbin County, March Term, 1895, No. 93, on verdict for plaintiff. Assumpsit on a policy of fire insurance. Before McPherson, J. The facts appear by the opinion of the Supreme Court. The court reserved the question whether there was any evidence of waiver to go to the jury. Verdict for plaintiff with answers to questions submitted by the court as follows: 1.
178 Pa. 636Commonwealth ex rel. Hensel v. Provident Bicycle Ass'n (1897)Affirmed
Appeal, No. 18, May T., 1896, by plaintiff, from judgment of C. P. Dauphin Co., March T., 1895, No. 4, in quo warranto proceedings. Quo warranto to forfeit charter. The facts appear by the opinion of McPherson, J., which was as follows: This a proceeding by quo warranto in which it is averred that the defendant claims to have, exercise, use, and enjoy the right to transact the business of insurance, but does not have a charter as required by the act of May 1, 1876, P. L. 58. The facts are agreed upon, and are substantially as follows : The defendant is a corporation chartered in November, 1894, under the general corporation act of 1874 by a judge of the common pleas of Philadelphia county “For the purpose of the accumulation of a fund by assessments for the protection of its members from loss by reason of injury to, or the losing of bicycles.” Every member of the association pays a fixed annual due of $2.00, and a further sum of $1.00 on the 1st days of January, April, July and October, making a total annual payment of $6.00. By virtue of these payments the member becomes and remains entitled to all the benefits accruing under a card of membership issued to him by the association, which contains the following contract: “The Provident Bicycle Association agrees to, 1. Clean your bicycle twice during the year. 2. Repair tire when punctured by accident. 3. Repair bicycle when damaged by accident. 4. Replace bicycle when destroyed by accident. 5. Replace bicycle when stolen, if not recovered in eight weeks, and provide a bicycle during that time.” It is also provided by the card of membership that “ Assessments are due January 1st, April 1st, July 1st, and October 1st. Membership is forfeited if assessments are not paid on the above dates before 12 o’clock, noon.” The association has no lodges, secret ritual, signs or symbols, and does not pay its members any sick disability or death benefits. Upon these facts the question first arises: Is the defendant carrying on a kind of business which is provided for and regulated by the act of 1876? If so, its business is being conducted unlawfully, because it is a corporation of the first class chartered as a protective association under section two of clause nine of the corporation act of 1874, and not under the insurance act of 1876, under which alone insurance companies strictly so called can now be incorporated: Com. v. Equitable Association, 187 Pa. 412, and note. The defendant’s franchise to be a corporation is not attacked; the dispute simply concerns the character of its business. If it is making contracts of accident insurance, as the commonwealth contends, it needs the authority of a charter under the insurance statutes; and as it has no such authority it must cease to exercise this pretended power. But if its contracts do not fall within the scope of these statutes, but are such agreements as may be made under the corporation act of 1874, the present proceeding must fall. The contract contained in the card of membership is peculiar. In some respects it is like, and in other respects unlike, a contract of accident insurance. It is not insurance to agree to clean the bicycle of each member twice during the year; nor is it insurance to agree to provide a bicycle for his use during eight weeks if his own is stolen, unless the stolen property is sooner recovered or replaced. Upon the other hand, the agreement to repair in case of accident, and the agreement to replace when a total loss occurs by accident or by theft, may readily fall within the general language of many accepted definitions of insurance. For example: In section one, May defines the transaction as “A contract whereby for a consideration one undertakes to compensate another if he shall suffer loss; ” and Phillips, in section one, defines it to be “A contract whereby for a stipulated consideration one party undertakes to indemnify the other against certain risks.” The American and English Encyclopaedia of Law, vol. 11, page 280, expresses the same thought in slightly different language: “ A contract whereby one party agrees to indemnify another in case he shall suffer loss in respect of a specified subject by a specified peril.” Our own Supreme Court, in distinguishing an insurance company from a beneficial association, thus describes the former: “ The general object or purpose of an insurance company is to afford indemnity or security against loss; its engagement is not founded in any philanthropic, benevolent or charitable principle ; it is a purely business adventure, in which one for a stipulated consideration or premium per cent engages to make up wholly or in part, or in a certain agreed amount, any specific loss which another may sustain; and it may apply to personal injury or to loss of life. To grant indemnity or security against loss for a consideration, is not only the design and purpose of an insurance company, but is also the dominant and characteristic feature of the contract of insurance: ” Com. v. Beneficial Association, 137 Pa. 419. These quotations, and others which might be added, do not specify the means by which indemnity is to be given; but obviously indemnity may conceivably be made either by a money payment, or in certain cases by repairing or replacing the object injured or destroyed. Accordingly many insurance policies offer the company an option to repair or replace, although the option is not often exercised. There is, however, one prevailing feature of insurance policies as they exist in practice, which these abstract definitions do not express. It appears in the following quotation from Smith’s Common Law, p. 299, defining insurance to be “ A contract by which a person, in consideration of a gross sum or of a periodical payment, undertakes to pay a larger sum on the happening of a particular event.” A similar idea is thus stated in Smith’s Law of Contracts, star page 248: “ Insurance .... is a contract by which, in consideration of a premium, one or more persons assure another person or persons in a certain amount .against the happening of a particular event.” This is the form in which policies are almost universally cast. The amount stated is usually intended as the limit of the insurer’s risk, but it also makes prominent the fact that the primary undertaking is to pay money, and not to replace or repair the object injured or ■destroyed. Indeed in many cases replacing would be impracticable — even where the object destroyed was by no means unique —because there would be no agreement between the parties that the object offered was identical with the object lost or ■destroyed. As an instance, if a horse was insured against theft and was afterwards stolen, it may be affirmed with confidence that scarcely ever would the parties be able to agree upon a substitute for the lost animal. In this, and in every similar ■situation, the opportunities for friction and dispute concerning the fulfillment of the insurer’s obligation are so many that it is easy to understand why the option to replace is so seldom exercised. While, therefore, as an abstract proposition, an insurance company might issue a policy agreeing to repair or replace, and specifying no sum whatever, either as a maximum or as a sum definitely agreed upon beforehand; it does not follow that every corporation which agrees to repair or replace, without fixing a limit in money to its obligation, is doing the business of insurance as it is ordinarily regarded and is carried on in practice. The insurance act of 1876 certainly does not regard that kind of agreement as necessarily a contract of insurance; for its provisions do not permit the incorporation of companies for this purpose. The class into which such a company would be expected to fall is the fourth class named in section one (now the third class under the act of 1895, P. L. 116), viz: “ To make insurance .... against loss, damage or liability, arising from any unknown or contingent event whatever . . . .” Corporations of this class may be organized either upon the stock or mutual principle. If a mutual company is to be chartered— such as the present defendant — section four requires that “ the subscribers to the articles of agreement shall open books to receive applications for insurance at convenient times and places, and keep the same open until applications for insurance have been obtained in sufficient number and amount to comply with the requirements of this act.” Section seven further provides that “Whenever applications for insurance in the case of a mutual company mentioned in the .... fourth paragraph of the first section of this act have been obtained in sufficient number and amount,” the officers of the company shall certify to the governor “ the names and the residences of the persons applying for insurance in said company and the amount agreed to be taken by each,” whereupon the governor shall incorporate them by directing letters patent to issue. And finally, in sections eleven and thirteen, it is provided that mutual companies organized for any of the purposes of the act “ may accept risks and issue policies whenever applications be made for insurance to the amount of 1200,000. ...” These provisions indicate clearly the kind of contracts which a company incorporated under this act is expected to make— whether it be organized on the stock or mutual plan — and manifestly an association which does not specify any amount in its policy cannot successfully ask for a charter thereunder. A ccordingly it must be held of necessity that the defendant is not obliged to have a charter which it cannot obtain. There is one clause in section fifty-four of the act of 1876 which is capable of being construed so as to exclude associations like the defendant from the operation of the insurance statutes; and if that is its true construction, no further reply is needed to the question which we are now considering. The section is as follows: “That this act and the act to which this is a supplement (Insurance Act of 1873) shall not apply to the beneficial associations that provide aid for the family or heirs of a deceased member, whether issuing policies containing a guaranteed sum of insurance or not, nor to associations issuing policies not containing a guaranteed sum of insurance.” Evidently the clause italicised if read by itself is broad enough to embrace the defendant; but this manner of reading would fail to reach the truth. The history of insurance and of insurance legislation in this commonwealth — considering especially those companies which do business upon the assessment plan — taken in connecr tion with the fair meaning of the section read as a whole, enables us to say with confidence that the clause in question refers only to the assessment associations which were then coming into prominence, and were practically insuring lives while they were professing to be mere beneficial associations. A few of these societies were promising to pay a definite sum at death, but much the larger number preferred a contract to pay no more than might be collected from the surviving members. It .is well known that these assessment companies were anxious to escape the regulation of the insurance statutes and the supervision of the insurance commissioner, and that the clause in question had no other' purpose than this. It does not apply to any other kind of company or to any other land of business. The remaining question is this, does the corporation act of 1874 authorize the defendant to make such contracts as are contained in the card of membership already quoted ? The clause under which the defendant is chartered permits incorporation for “ the maintenance of a society for beneficial or protective purposes to its members from funds collected therein; ” and in our opinion the defendant’s business falls fairly within this description. It is not a beneficial association, Com. v. Association, 137 Pa. 419, but it is protective in its purpose and in the actual character of its business. Its agreement is an undertaking not to pay money but to perform certain services for its members. Without doubt these services benefit the members and protect them from loss or inconvenience; and while it is freely admitted that in some respects the defendant’s undertaking approaches closely the field which belongs properly to insurance' — at least to insurance abstractly considered — nevertheless we think that the absence of an agreement to pay money establishes a difference between this undertaking and the contract of insurance as it is known in practice, which of itself perhaps would justify us in saying that the transaction as a whole falls fairly within the protective clause already quoted from the act of 1874. Moreover this agreement differs in other respects from the usual policy of insurance. The defendant makes the same contract with each member; it does not grade its risks; it receives the same sum from each person, although it undertakes to perform services which may vary widely in value among the members served. One bicycle may require no repairs during the year, while another may need to be repaired every month; total destruction will be comparatively infrequent, and it may safely be assumed that losses by theft will be still more rare. Bicycles differ considerably in value; but for the same sum the defendant will replace a wheel worth $100 and a wheel worth only half that sum. In brief, whatever may be the loss or injury which each member may sustain, he is entitled to have it made good in consideration of the same unvarying sum. The extent of his rights is tested only by the fact of membership. We may say also that upon the facts before ué, which do not show in what manner the defendant intends to carry out its contract, it is impossible to declare that its proposed method of operation is unlawful. It is quite clear that an association of bicycle owners, with many members, can protect themselves against loss or injury at a much cheaper rate than can an individual; it can get repairing done at better rates, and can buy at better rates for the purpose of replacing wheels that are stolen or destroyed by accident. Indeed, if the association chose to do so it could establish a repair shop of its own and in that way carry out a part of its contract without even being supposed to violate any provision of law. The manner in which the defendant intends to fulfil its agreement to repair and to replace does not appear from the facts agreed upon by the parties, and we are not at liberty to presume in the absence of proof that any unlawful method is proposed. Clearly, if the association intends to maintain its own repair shop, or to purchase bicycles in wholesale quantities and at wholesale rates so as to be able to replace from its own stock those which may be destroyed or stolen,' its business in these respects cannot be described as insurance in the ordinary use of that word. And even if it arranges that other persons shall do the work or furnish the wheels, the benefit winch the members thus receive is essentially the same as if it performed these services itself. We add in conclusion that this view of the defendant’s business is not in conflict with the case of Solebury Mutual Protective Society, 4 C. P. Rep. 11. In that case Judge Yerkes was considering whether he would incorporate a company for “ The recovery of property that may be stolen from its members, and in the event of a failure to recover such property, to pay to the loser such part of the value thereof as the company may hereafter determine and set forth in its by-laws.” This apparently contemplates a positive agreement to pay money; and as no bylaws and no form of contract were submitted, the court was naturally unwilling to take the risk which was so plainly visible in the large discretion committed to the company. As the opinion says, in a metaphor of some boldness: “ The paragraph in the second article providing for compensation to the loser of such part of the value of the property as the company may hereafter determine and set forth in its by-laws is the Trojan horse by means of which a full fledged and unrestricted insurance company is to be introduced to fill out the skeleton which we are asked to set up as a society for beneficial and protective purposes to its members, not for profit.” In the case before us, however, the charter has been already granted, and we know the kind of contract which the company is actually making. We regard it as a proper contract for a protective society to make; if an attempt should be made to change it so as to enter the field of insurance, or if an effort should be made to carry it out by an unlawful method, the power of the court is ample to afford redress. Without further elaboration, and conceding that the question is not free from difficulty, we hold that this society is not doing the business of insurance, and does not need a charter under the act of 1876. Its business can be carried on lawfully under the charter which it holds from the common pleas, and the commonwealth has not proved that any unlawful method has yet been adopted. Judgment is accordingly directed to be entered for the defendant. Error assigned was in entering judgment for defendant. The defendant association is not a beneficial society such as can be incorporated under the authority of the act of 1874: Com. v. Equity Beneficial Ass’n, 137 Pa. 412; Berry v. Knights Templar, 46 Fed. Rep. 439. The business transacted by the defendant association is accident insurance: Pullen v. Glover, 12 East 124; Roebuck v. Hammerstown, Cowp. 737; 2 Blackstone, 458; Biddle on Ins. sec. 2, p. 2; Lucena v. Crawford, 2 B. & P. N. R. 301; Farmer v. State, 69 Texas, 561; Com. v. Wetherbee, 105 Mass. 149; State v. Farmers’ Benevolent Ass’n, 18 Neb. 276. We submit that even aside, from the express exemption declared in section 54 of the act of 1876, such a corporation as respondent should not be considered an insurance company within the terms of the act. There is no inconsistency between this primary idea of insurance and the taldng of precautions by the insurer, though the effect of such precautions may be to make the risk which is borne by the insurer less than it would have been if left to fall upon the ordinarily negligent insured. The relation of the parties is still this primary relation of insurance. The Provident Bicycle Association is not open to exception. If it makes bicycles to replace those which are lost or stolen, or if it does its own repairing, the establishment so used is the property of the members. If it makes the saving for which it is organized, by securing club rates, the continuing contracts for such rates are the property of all the members in their corporate capacity.