71 Pa.

Volume 71 — Pennsylvania State Reports

90 opinions

71 Pa. 11Spering's Appeal (1872)
Appeal from the decree at Nisi Prius: No. 8, to July Term' 1867. The bill in this case was filed April 18th 1867, hjt Joshua Sparing, assignee*of the National Safety Insurance and Trust Company,' against James B. Smith, Samuel H. Ashton, C. Landreth Munns, Joseph B. Barry, F. Carroll Brewster, Edward L. Carter, Benjamin W. Jones, Henry L. Churchman, Francis Lee, Thomas B. Smiley, Stephen Coulter, Joseph Yerkes, Henry Diffenderfer, James L. Stevenson, William J. Reed, Peter Glasgow, Henry L. Benner, administrator, &c., of Henry L. Benner, deceased, and Michael A. Byrne, administrator, &c., of Robert Selfridge, deceased. The National Safety Insurance and Trust Company became ^insolvent in the winter of 1860-1861, and losses, to a large amount were sustained by its depositors. They made an assignment for the benefiifof "creditors on fhe 18th of April 1861, to Henry L. Benner, Stephen Coulter and John Derbyshire. Spering, the plaintiff, was afterwards appointed trustee in their place. This bill was brought by the trustee to compel the directors and others, alleged to be connected with them, to make good the losses, on the ground of fraudplenLmisma.nag;ement. The_biU..set out: The NationalhSafet?.Insurance and Trust Company was incorporated by Act of April 17th 1841> under the nameoNThe Equitable and Life Insurance, Annuity and Trust Company, with the powers of the Philadelphia Eire, &c., Insurance Company, and were expressly restrained from exercising banking privileges. The Philadelphia Insurance Company, by several Acts of Assembly, were empowered to make fire and marine insurance, to lend money on bottomry and respondentia, as the American Insurance Company, by their acts of incorporation, were authorized to do; and were to have also the privileges and be subject to the restrictions under a supplement of February 26th 1886, to the act incorporating The Pennsylvania Company for Insurance on Lives,&c; the capital to be $250,000, in 5000 shares of $50 each. By Act of April 1st 1842, there were given to The Equitable Insurance, &c., Company all the powers and privileges conferred on The Pennsylvania Company for Insurance on Lives, &c., by Act of March 10th 1812, and its supplements. These powers, &c., were to make insurance on lives, grant annuities, and make all kinds of contracts, involving casualties on lives and interest on money, to receive money in trust and pay interest not exceeding legal interest; the moneys to be invested in the debt of the United States or any municipal corporation of Pennsylvania, or in the stock of a bank, canal, bridge or road company, in ground-rents or mortgages, or on any good and sufficient security or real estate taken in execution for debt. On the 28th Of May 1850, books were opened for subscription to the stock of the company; the 5000 shares were subscribed and directors were elected June 3d 1850; shortly afterwards the Court of Quarter Sessions of Philadelphia changed the name of the corporation to the “National Safety Insurance and Trust Company ;” this change of name was afterwards confirmed by Act of Assembly. The company opened an office mainly for the purposes of a savings fund and also for life insurance; the risks of life insurance were in 1854 transferred to another company, the savijigs fund business Eeing.thereafter the.main business of_the company. " ~ Directors were elected as follows: William J. Reed, in the year 1850, annually until 1852. Peter Glasgow, 1851, 1854. B. W. Jones, 1852, 1854. J. B. Smith, 1852, 1857. H. L. Churchman, 1855, 1857. H. Diffenderfer, 1858, 1859. H. L. Benner, S. K. Ashton, R. Selfridge, J. B. Barry, 1850, 1861. F. C. Brewster, “ 1851, “ “ 1861. E. L. Carter, “ 1852, “ “ 1861. C. L. Munns, “ 1853, “ “ 1861. ' F. Lee, “ ■ 1855, “ “ 1861. J. Yerkes, “ 1858, “ “ 1861. J. L. Stevenson. “ 1860, « “ 1861. H. L. Benner was elected president in 1851, and was continued until the assignment was made. The company commenced the savings fund business, advertised extensively, and made statements in the pass-books of depositors, setting out the character of the investments, &c., and asserting the safety of the deposits, &c. The deposits in 1850 were $11,596.52, and with the exception of 1857 and 1858, annually increased until 1860, when they amounted to $1,313,819.21; in 1861 amounted to / That the defendants, instead" of paying for their stock, gave notes]" which lay over fór aJñumb'ér~of years, and some-were never paid; they borrowed money on collaterals and took up the colla- ¡ terals without paying the money borrowed; the expenses of the company were wasteful; many of the investments were of a char-. acter forbidden by law; those that were legal were made when I there had been no profits; an over-valuation of assets was made, to ’ show profits; the assets were sacrificed instead of enforcing pay-1 ment of unpaid stock subscriptions; the account books were so ¡ confused, that the transactions of the company could not be ascer- j tained. Shortly after the original subscription of the stock, 750 shares of it were transferred to the company, and at the time of the assignment they held 964 shares; two assessments, together amounting to $10 per share, were made in 1850, to pay losses on life insurance. The most of these assessments were paid in notes of the stockholders, and dividends declared were applied to the payment of interest on these notes and to the principal; in December 1853, the amount unpaid on these assessments and the original subscriptions was $27,598.91; this balance was carried to account of Bills Receivable, and tbe mode of final settlement tbe plaintiff could not'ascertain. If the company bad loaned at legal interest, tbe excess beyond 5 per cent, interest wbicb was paid on deposits, would bave been tbeir profit, and tbeir expenses should bave been limited to that; this excess, from 1850 until tbe assignment, would bave amounted to about $58,000, wbicb was exceeded by the expenses and dividends. Tbe directors discounted at usurious rates; at tbe date of tbe assignment, the assets were: Real estate, $112,080 Mortgages, 46,634 Ground-rents, 47,159 Stocks, 470,433 Bills receivable. 217,415 Discounts and making loans were controlled by tbe finance committee, and were mostly nominally made to tbe defendant Coulter, commencing in 1853 and continuing till the assignment; tbe committee’s books were contradictory; Coulter was in fadt tbe agent of tbe company, be doing an usurious business for them, with tbeir money, “without restraint or responsibility.” In 1852 until December the company held $900 of Coulter’s liabilities; at that time they held $160,000; the amount of Coulter’s notes varied, diminishing and increasing until November 1860, at which time a run commenced on tbe company ; tbe notes were mainly Coulter’s; when tbe assignees’ inventory was filed none of bis notes appeared; tbe transactions with him had at first been entered in tbe books as at legal rates of interest, and afterwards be made acknowledgments in writing of extra interest, of tbe amount of wbicb there is no statement; fictitious entries or loose estimates were made in tbe accounts; large amounts of accumulated interest were carried to tbe credit of Bills Receivable, and Coulter gave bis note for tbe amount. Tbe business of tbe company was usurious at various rates, some as high as 3 per cent, per month. Tbe real estate, ground-rents, mortgages, &c., were of doubtful value, some being collaterals to favor debtors; tbe value of assets was frequently increased on tbe books to show profits not earned; three-fourths of tbe investments were in bills receivable, although advertised to be in real estate and other solid securities; they invested also in forbidden securities, such as stocks in gas companies out of tbe state, real estate not taken in execution, &c. Tbe insolvency arose, amongst other causes, from large expenses, unwarranted dividends, securities of a character wbicb bad to be sacrificed when a run was made on tbe company; there were false entries in tbeir books for tbe purpose of deceiving, showing tbe assets greater and tbe liabilities less than in reality they were; loans were improperly made to directors, and whilst notes of defendants Ashton, Carter, Munns, Barry and Smith were unpaid, tbeir collaterals were returned to them; tbeir notes were in “ Bills Receivable,” but not in the inventory. Early in 1861 depositors brought suit, judgments were recovered, executions compromised or stayed upon deposits of collaterals; real estate and other property were fraudulently transferred to Coulter; the assets at the assignment according to the books should have amounted to $896,711.65; some had been recovered by the plaintiff, hut assets of value had been assigned by the directors between the run in 1860 and the assignment; the amount recovered by plaintiff was not sufficient to pay interest to the depositors; debtors of the company when sued had defended on the ground of the illegality of the debt; others would probably do the same; the defendant Reed held the office of secretary and treasurer of the company, and Smiley that of actuary, they were acquainted with its condition, and assisted the other officers in the fraud and mismanagement. The prayers were for a decree against the defendants, to pay the plaintiff sufficient to make good the liabilities of the company, and for general relief. By amendments to the bill the plaintiff charged that the defendants, during their respective terms of office, had entire control of the affairs of the company; that the frauds charged continued from 1854 until April 8th 1861; that each defendant participated in them, or by negligence permitted and encouraged them. A decree was taken pro confesso against the seven defendants last named. The appearing defendants filed demurrers interposing the statute' of limitations; the demurrers were overruled as to all but Churchman and Smith. Judgment was entered for them on their demurrers; oh Churchman’s demurrer the following opinion was delivered by Thompson, C. J.Y “ Directors in a corporation may in some sense be regarded as trustees for parties pecuniarily interested in its operations, but this results from the nature of the duties they are to perform. They are not technically trustees. An attorney in fact, bears a close resemblance to such a position, or perhaps an attorney at law is still nearer being an official representative. It is settled that, in these cases, the Statute of Limitations is applicable. Constructive trusts, it is well settled, are within the statute: 4 Barr 56;. 2 Grant 278. “ The trust claimed to exist in this case, is of this nature in my opinion. Nine years after the demurrant, Churchman, had ceased to be in the direction of the National Safety Insurance and Trust Company, he is called upon by this bill, to answer an allegation of gross negligence in regard to the affairs of the company, during some period of his official incumbency as director. This I regard as the charge. The bill sets forth that he and the directors participated in frauds, or by the most gross and culpable negligence, permitted and encouraged corrupt and negligent dealings with, and mismanagement of the moneys and assets of said company. The particulars of the fraud are not set out, and only the last branch of the alternative is sufficiently stated, if indeed either be. This negligence was a breach of duty, and might have made the party liable on the instant, or certainly when discovered. But if parties or the corporation, lie by nine years without evincing that they have been injured, the statute of repose in a common-law form would protect, and by assimilation, so in equity: 2 Daniels 43,44. “ If nine years would not protect, nineteen would not. Had he continued a director, it is probable a different rule would be applicable. If no statute or lapse of time will protect a party once a director, nobody ought to serve as such. In addition, I see not any reason why the Act of 28th March 1867 should not apply in this case, although I do not place the case upon it. The demurrer to the bill by the defendant, Churchman, is sustained on the ground of the lapse of time alone, after he ceased to be a director and before bill filed.” Other defendants denied committing fraudulent or illegal acts ; averred that they always took collateral security with ample margin for loans; publications were made by the executive officers not authorized by directors ; but the statements in them were believed to be true ; they all gave stock-notes but Lee, and most of them had been paid at the time of the assignment; the collateral for money Borrowed by them was changed only when excessive or the loans reduced; they had acted under legal advice ; the investments were not forbidden by law; dividends were not declared when there were no profits; the assets were not over-valued, but would have been much in excess of the liabilities, if it had not been for the pressure of the late war; when the run commenced, just before the war, they believed it would be temporary, and under legal advice, they acted so as to preserve the existence of the institution when ordinary experience was at fault; if it had been possible to preserve the assets, the debts would-have been paid; up to the time of the Avar the capital Avas sufficient without calling in all the instalments; all the stock was subscribed, but some Avas forfeited to the company; there was no confusion in the accounts; usurious loans Avere not made; the loans were under the control 6f the finance committee; Coulter was agent of the company; defendants were not connected with him in any fraudulent transactions ; the assets had been committed to Coulter to sell to sustain the company in the crisis in 1860-1861 ; there were no fictitious entries in the books; nothing had been done to deceive depositors. Suits had been compromised under legal advice ; assets had been transferred to secure certain deposits; none of these defendants had possession of the assets; all the affairs of the company were laid before the stockholders. They furtner averred, that the plaintiff had no cause of action ; because, that was in the creditors alone; anything recovered would not enure to the corporation; the corporation had suffered no injury; if there had been a cause of action it would be barred by the Statute óf Limitations. They denied the averments in the amendments. F. C. Brewster pleaded the Statute of Limitations and that he had ceased to be a director in 1858. He also filed an answer in support of his plea. Replications were filed to the answers and pleas. George Bull, Esq., was appointed Examiner and Master.' The testimony taken was very voluminous, covering a vast amount of documentary evidence as well as oral testimony, presenting the affairs of the corporation, its assets from time to time, its management, &c. The Master made a separate report in Judge Brewster’s case; he sustained his plea of the statute upon the evidence and found also that he had ceased to be a director after 1858, and had not participated in the management of the corporation in any way after that time and was not liable. In reporting as to the other defendants, the Master says: “ It appears in the evidence that the defendants always acted upon legal advice, as to the mode of doing business, and making investments. No important step was taken without first obtaining the advice of the solicitor.” After an elaborate and thorough examination of the evidence and authorities, he reports his conclusions, viz : “ * * * Each act charged against defendants must stand by itself, and they are not ‘continuing’ or joined together so as to constitute one whole. Directors are not technical trustees cognisable only in equity. The primary condition of directors is that of agents or gratuitous mandatories of the corporation. * * * The plea of the statute will apply to each separate act, and all prior to six years will be barred unless there is fraud a.nd concealment. “There is no difficulty in determining the question of fraud and concealment. It appears by the facts reported, that there was no actual fraud whereby the defendants sought to obtain a personal advantage at the expense of the corporation. One fact is quite clear — that none of these defendants have ever made any. profit out of their transactions which was not common to all the stockholders. * * * Their actions were governed by an honest desire to make money for the corporation. At each annual meeting of the stockholders, statements were laid before the meeting. * * * Among other items we find the ‘accumulated interest,’ set out as an asset. The valuations are all put down, so that any one might detect the fact if they were above the real' value. In fact, all the information required to show the exact nature of their business was there, and if the stockholders made no further inquiry, they can hardly allege concealment, and will be presumed to have assented. * * * The Master is clearly of the opinion that there is nothing like fraud and concealment. Consequently, in pursuance of the views above expressed, everything dating more than six years prior to the commencement of this suit will be barred. * * * This of course confines the whole case to a period of about three months prior to the date of assignment. * * * “ The final run upon the National Safety Insurance and Trust Company, which continued until the failure, commenced soon after the presidential election of 1860, and was caused by the great panic, which the apprehension of trouble in the South brought about. During the whole of that run no investments were made, except the purchase of the Winslow House. The whole attention of the officers was directed to efforts made to sustain the institution. There can be no question that the defendants who participated in that struggle, acted in good faith. They thought that the panic would soon pass away and that they would be able to weather the storm. The result showed that they were mistaken in, this. But this was an error of judgment for which they cannot be held responsible. * * * They were bound to take the same care of the company’s interests that a prudent man would of his own, and in doing this they were entitled to use the same discretion. If they believed that they could sustain the credit of the institution, and prevent its failure and the consequent loss, it was their duty to do so. That they did so believe is shown by the fact which is in evidence before the Master, that even at the very last, the defendants presented to the creditors a proposition in writing, whereby they agreed to become personally responsible for all the debts of the concern, if the creditors would agree to give them three years’ time, the defendants in the meantime to have entire control of the assets. This proposition or agreement was signed by about one-half of the creditors. In making this offer they must have entertained confidence that the assets, by careful nursing, could be made to pay the debts of the institution. It will be remembered that some of the defendants were men of means, and their guaranty was of great value. “ The manner in which the defendants undertook to raise money at that time, is complained of. The company did not appear in the market as a borrower; to have done so would have hastened the catastrophe which they were trying to avert. Coulter was the agent and broker of the company, and in that capacity negotiated loans upon the collaterals. By this means the fact that the corporation was a borrower remained a secret. In some cases where it was deemed advisable, securities were sold, but most of them were hypothecated. The mode of transacting the business at that time was really an advantage to the corporation, because it prevented the loss of credit, which would have resulted from a general knowledge in the market that the concern was negotiating loans to such an extent. * * * “ At the outset of this crisis, two alternatives were presented to these defendants; first, to make an assignment; second, to make a bold stand against the storm, and endeavor to save the institution. If they honestly believed that they would be able to save the company from destruction, it was their duty to accept the second alternative, and make the effort, and in doing this they were justified in making any reasonable sacrifice that the necessity of the case demanded. The latter course was the one pursued, and the mode in which they undertook to raise money was probably best for the institution. They might have gone into the market and sold their securities absolutely; instead of doing this, they resorted to a system of hypothecation, intending in this way to carry the company over the crisis, and afterwards redeem them. That this was by all odds the wisest course was proved by subsequent events. * * * “ The Master has been unable to find anything in the history of the company, during the time covered by this case, that can avail to render any of the defendants liable. If they were guilty of anything, it was too much anxiety to make money for the company, and to preserve its credit. The conclusion is that the plaintiff has no grounds for recovery, and his bill must therefore be dismissed with costs.” Exceptions were filed to the report. The court at Nisi Prius overruled the exceptions, and made a decree confirming the report. From this decree and the decrees on the demurrers the plaintiff appealed to the Supreme Court in banc, and assigned the decrees for error.
71 Pa. 25Speakman's Appeal (1872)
Appeal from the decree of the Orphans’ Court of Philadelphia: No. 271, to January Term 1871. In the estate of Lewis Morton, deceased. The decedent died June 8th 1863, leaving a widow and mother to survive him, but no children. Administration of his estate was granted to his widow, Margaret Morton; within thirty days she filed an inventory, amounting to $287.50. In the same month she sold the personal property; the vendue list, which, was not filed, amounted to $439.20. In April 1864 the widow married William Knorr. The mother of the decedent died in September 1865, and administration of her estate was granted to Thomas H. Speakman, the appellant in the case. In answer to a citation the administratrix of Lewis Morton filed an account of her administration, November 14th 1867. She charged herself with the amount of the inventory only; the account showed a balance of $37.50 in her favor. Exceptions were filed to the account by the administrator of the mother. It was referred to an auditor. After his report, an issue was directed to the Common Pleas to ascertain certain facts. The jury found in favor of the administratrix. The court awarded a new trial; this trial was waived by the parties and the whole matter referred to D. W. Sellers, Esq., as auditor. He stated in his report that the administrator of the mother of decedent asked a surcharge, viz.: 1. The value of gold claimed by the widow to be hers, $400. 2. The value of gold claimed to be the property of William Knorr, the present husband, $700. 3. The value of the personal estate (as well that in the inventory as some not included), which is thought to be established as of the value of $1000. He reported that the $400 in gold had been obtained from the personal labor of the administratrix, during the life of the decedent, her husband, by “sewing and raising chickens and eggs, * * and washing.” The decedent was a man of intemperate habits; so much so, that on some occasions she had to go to his slaughterhouse and kill sheep for him. Her husband had become so improvident that in 1841 her father gave her $25, with which she bought turkeys and chickens and raised them, and also bought remnants of calico, which she made into quilts and sold the quilts. The gold was neither in the inventory nor the account. These things being the earnings of the wife, the auditor was of opinion that the gold, their proceeds, belonged to the estate of the husband, except the $25 received from her father. The' auditor was further of 'opinion that under the exemption laws the widow could retain “$300, in gold dollars, by the count.” He decided that notwithstanding the administratrix had not introduced the gold into the inventory or account, she should not therefore be deprived of her $300. “ These omissions were, however, for the reason that she considered it as her own. She had earned it. No money coming from her husband was a part of it. She might well be pardoned the error of belief which she entertained. As there were no creditors she could have contemplated no fraud on them, still less could she have supposed that the mother of her husband would have contested her right to these earnings. Few would have done so.” The auditor allowed her the $25 received from her-father and charged her with $75 in gold at $2.60, the price at which she sold it, with interest from October 1864, the time of the sale. On the second head the auditor reported : “ On this head, I find no evidence that the gold first known to be in the possession of the second husband was that of the first. The decedent, according to the weight of the testimony, was an unthrift, and in the latter years of his life wholly without the habits which acquire or save. Without the frugality and commendable industry of his wife, I cannot see but that his life towards the close would have been one of squalor and penury. She did all the work. - In the garden, the slaughter-house, behind the bar, with the needle, and at the wash-tub; often after the labors of the day should have been over, had her domestic duty to be performed. “ It is nothing to the purpose that we do not know where the present husband got the money. We have no legal right to inquire. * * * On the day appointed for the argument, the counsel asking the surcharge said he would make no objection to his examination, but he was not then present, and the counsel for the administratrix might well hold that it was unnecessary, as no evidence in any way tended to show that any of the money belonged to the estate of the dead.” On the third head the auditor reported: “ I find no controlling evidence, that the value of the property was different from that at which it was appraised, except -that at a sale of a greater part of it in September the sum of $815 above expenses was realized. * * * If the mother, when the appraisement and inventory were filed, had then doubts of its -integrity, she had time before the sale in September to have prepared herself to support this surcharge. She has not done so, and I cannot supply the omission. * * * “ The black mare and colt, appraised at $50, were sold at $70. I surcharge the $20, with interest from September 1st 1868, as it was sold before the sale. “ In this case the accountant did not file in the office of the register a just and true account of the articles sold at public auction, and the prices and purchasers thereof, as required by § 11, Act of February 24th 1834, Pamph. L. 74. Here then was a sale, and there was a vendue list made out. If this list had been produced before, much of this litigation might have been avoided, and as the same has always been in the possession of the accountant, the expense of this reference must be borne by her. I shall disallow the commissions, because she did not surcharge herself with the amount realized from the sale, as she ought to have done. “ As much of the litigation on this account has arisen in the effort to surcharge to an amount largely unjust, I allow H. M. Dechert, Esq., $50 for professional services. The following is the adjustment of the account: Appraisement, . . . . $237.50 Realized at public sale, in excess, . . 77.50 Sale of mare and colt, . . . . 20.00 $335.00 Interest from September 1st 1863 to June 1st 1870,...... 134.00 - $469.00 Surcharge of $75 in gold, at premium of $2.60, $270.00 Interest from Oct. 1st 1864 to June 1st 1870, 91.80 -^ 361.80 $830.80 The credit allowed by the former auditor, with the deduction of commissions, . . $251.06 Interest from Sept. 1st 1863 to June, . . 100.40 Expenses of the former audit, . . 125.62 H. M. Dechert, Esq., .... 50.00 - 527.08 Net balance for distribution, .... $303.72 Awarded to Thomas H. Speakman, Esq., administrator of Margaret Morton, . . $151.86 Margaret Knorr, wife of Wm. Knorr, the sum of 151.86 Expenses of reference: Clerk of Orphans’ Court, '. . . . $10.00 Auditor, ..... . . 120.00 $130.00 Exceptions to the report of the auditor, in the Orphans.’ Court were “ dismissed, except as to so much as applies to the allowance to the widow of $300, with the premium of 260 per cent. The allowance should have been for $300, less the premium.” The administrator of the mother appealed to the Supreme Court. The errors assigned were the decree of the court confirming the report of the auditor, with the exceptions stated in it.
71 Pa. 31Insurance Company v. Phœnix Insurance (1872)
Error to tbe District Court of Philadelphia: Of January Term 1871, No. 348. This was a scire facias in foreign attachment, issued to December Term 1868, by The Insurance Company of the State of Pennsylvania against B. J. Trask; The Phoenix Insurance Company being the garnishees: the attachment had been served upon them September 22d 1868: The question in the case was, whether William Bell, mortgagee of the vessel and assignee of the policy as collateral security, was entitled to receive the amount due by the insurers in preference to the attaching creditor. Bell appeared and took defence under the garnishees. The plaintiff gave in evidence a policy of insurance, dated February 26th 1867, from The Phoenix Insurance Company to Benjamin J. H. Trask for $5000, “lost or not lost, at and from the 15th day of December 1865, at noon, and to continue until the 15th day of December 1867, at noon, and if then on a passage, with liberty to renew for not exceeding three months, &c., ‘ for account of whom it may concern, loss, if any, payable to the assured or order,’ upon the ship called the Shakespeare, valued at $80,000.” The policy contained also this clause: “ It is also agreed that no assignment of this policy shall be valid unless the premium has been paid or note given therefor is further secured by a previous endorsement of the person or persons for whose benefit said assign ment is intended, and unless the consent of the insurers be first obtained.” The signature of B. J. H. Trask, Jr., was on the back of the policy. It was agreed at the trial that there was a partial loss on “ The Shakespeare,” and that there was due on the policy by the garnishee the sum of $1283.93, being their adjusted share of the loss. The garnishees gave in evidence a mortgage of the “ Shakespeare,” dated July 8th 1867, from Trask to BelLfor $40,000; the mortgage contained a covenant by Trask to keep the vessel insured for the benefit of the mortgagee. Bell testified, that he had lent Trask money in 1865,1866, and 1867, and that Trask had executed the mortgage on.the ship as security for the debt, and assigned and delivered to him the policy as collateral security for the mortgage; that the endorsement in blank had been made to him at the same time; he had not possession of the vessel at the time of the loss. H. J. Moody testified: “ I acted as the agent of Mr. Bell in the adjustment and collection of these insurances on the Shakespeare. Early in September 1868 I had an interview with Mr. Wucherer, the president of the Phoenix Insurance Company, in relation to the amount due by the Phoenix Company on this policy, in which interview I told Mr. Wucherer that Mr. Trask had assigned in the policy to Mr. Bell. Mr. Wucherer claimed to set off against the amount due upon the policy, the amount of another premium-note of Mr. Trask’s which they held.” The following letters from Mr. Wucherer were put in evidence: “ Philadelphia, September 6th 1868. “ Messrs. Moody & Telfair, New York: “ In reply to your favor of the 15th we have to inform you that we are willing to settle the claim for loss on ship Shakespeare on the basis of $30,667.67, as adopted by the Orient & International Insurance Companies of New York, our proportion being l-16th or $1916.67, from which is to be deducted the amount due under a judgment obtained through our attorney, William D. Booth, Esq.” “ Philadelphia, September 22d 1868. “ Messrs. Moody & Telfair, &c.: “ We wrote you on the 16th instant stating our willingness to settle the claim for partial loss on the ship Shakespeare on the basis adopted by the Atlantic and other insurance companies of New York, making our proportion $1916.67, deducting therefrom the amount due under our judgment against Mr. Trask, since when we have not had the pleasure of hearing from you. We have now to inform you that we have this day been served with an attachment at the suit of the Insurance Company of the State of Pennsylvania for any funds in our hands of Benjamin J. H. Trask.” The court instructed the jury to find Tor the plaintiff, and reserved two points:— 1. Whether the endorsement of the policy by Trask, and his delivering it to Bell, in pursuance of the covenant to keep the ship insured for the benefit of the latter, was a good, equitable assignment of the amount, if any, that might become due under the policy to Trask, constituting an answer to the attachment subsequently laid on the garnishee. 2. Whether the agreement by the garnishee to appropriate the amount due to Bell on the policy, as assigned, to the payment of the premiums due by Trask, was a waiver of their right to rely on the non-payment of premium by Trask, as a reason why the assignment should be void. The verdict was for the plaintiffs, finding in the hands of the garnishee $1283.93. The court afterwards entered judgment for the garnishees on the points reserved, non obstante veredicto: Hare, P. J., delivering the following opinion:— “ This case arises under the following circumstances: It is an attachment issued by the plaintiffs for the amount due on a marine policy executed by the defendants in favor of Trask, the defendant in the judgment. The garnishees admitted the execution of the policy and the loss, but contended that the demand had been assigned by Trask prior to the attachment, as collateral security for a mortgage of the vessel to William Bell, who appeared and took defence under the garnishee. “ The evidence on this point was as follows: Trask mortgaged the ship to Bell by an indenture dated July 8th 1867, containing a covenant to keep the vessel insured for the benefit of the mortgagee. There was no formal or written transfer of the policy, but it was endorsed in blank by Trask and given to Bell in pursuance of the covenant. These facts were not contested by the plaintiffs at the trial; but it was contended that the transfer was invalid, because the consent of the insurers had not been given as required by the policy, which contained the following condition : 4 Provided, that no assignment of this policy shall be valid unless the premium has been paid or the note given therefor is further secured by a previous endorsement of the person or persons for whose benefit said assignment is intended, or unless the consent of the insurers be first obtained.’ The question therefore is, whether there was a failure to comply with the terms of this provision invalidating the transfer of the policy to Bell. “ The assignment of a policy of insurance may be viewed in two different aspects. In one of them it passes the insurance considered as such. In the other it is a mere equitable transfer of the right to receive any sum that may be due in the event of a loss. A purchaser who buys a vessel and takes an assignment of the policy, is substituted in place of tbe vendor. He must, it is true, sue in the name of the latter, but the recovery is in his own right, and the defendants cannot rely on the determination of the insurable interest of the nominal plaintiff as a bar. The liability of the insurers is under these circumstances for all practical purposes the same as if the insurance had been effected in the first instance by the assignee. It is a qualified negotiation of the instrument, which may be likened to the passage of a covenant of warranty with the estate to which it is made incident by the deed. Such is also the rule in the case of an insurance against fire, except that the consent of the insurers is requisite to give validity to the transfer. “ On the other hand, an assignment of the policy to a stranger in interest, can only operate as an equitable appropriation or transfer of the damages that are or may be payable for the destruction of the property by the perils for which the insurers have agreed to be answerable. The fund is assigned and not the contract, nor the right to be indemnified under it in the event of loss. The assignee stands in the shoes of the assignor without acquiring a neAY or independent status, and cannot recover unless the assignor has an insurable interest when the loss occurs. Such an instance is afforded by the transfer of a policy as collateral security to a creditor who has no estate or interest in the premises insured: Bibend v. Liverpool, 30 California 78. “ In the cases above supposed, the distinction is plainly marked and may be readily applied, but there is a third where the assignment may have a twofold operation, and it is not always easy to say which was designed. This occurs Avhen the policy is transferred to a mortgagee of the property covered by the insurance. Here there are tAvo insurable interests, each of which may subsist and be a ground of action, notwithstanding the determination of the other. The mortgagor is entitled to indemnity as the owner of the equity of redemption; the mortgagee, by virtue of his lien for the debt; and as the extinguishment of the mortgage will not affect the right of the mortgagor, so a sale or alienation by the mortgagor ayíII not preclude a recovery by the mortgagee. Such at least is the case when the consent of the insurers is obtained, or is not requisite to the validity of the transfer, and there is no condition against alienation. When, however, the insurance is against fire, or contains a proviso that it shall not be assigned without the consent of the insurers, a different question may be presented. If the property is conveyed under these circumstances and the policy transferred to the purchaser without the sanction of the insurers, the insurance will be at an end, and there can be no liability under it for a subsequent loss. The assignor cannot recover, because his insurable interest has been determined by the sale; and the assignee is not a party to the contract originally, or by virtue of the assignment. When, lioAvever, the policy is assigned to a mortgagee, and not to an absolute purchaser, there is this material difference, that the assignor retains an insurable interest, and may recover as if the mortgage had not been executed. His right in this regard is a chose in action, a demand assignable in eqitity to any one to whom he thinks fit to transfer it; and it may consequently be transferred as a collateral security to the mortgagee. It is immaterial that the policy does not attach to the insurable interest of the latter; he will still be entitled to the amount due for any loss that may be sustained by the mortgagor. The assignee contends that this Anew should be taken in the present instance. If the assignment did not operate to pass the contract of insurance because the assent of the insurers Avas not given, it should still be construed as an equitable transfer of the claim of the assignor to compensation for the loss. “ The force of this argument is so obvious, that it must prevail unless excluded by the terms of the policy. It is well established that a contract should be so 'construed ut res valeat; and general words of grant will consequently be applied to that which the party can transfer, and not to that Avhich he cannot. A vessel which has been insured is mortgaged. The insurers do not, perhaps will not, sanction an assignment of the policy. The loss is, however, payable by the terms of the instrument to the order of the mortgagor, and Avould be so if there were no express stipulation. Instead of giving an order or power of attorney, with a clause declaring his intention to pass the fund irrevocably by Avay of anticipation, he endorses the policy in blank and delivers it to the mortgagee in pursuance of an agreement to keep the property insured for the benefit of the latter. Manifestly the transaction should be construed in accordance Avith the intention of the parties as an equitable transfer of the right to receive the money, and not as an assignment of the policy as an insurance. “ It is, hoAvever, said, on behalf of the plaintiffs, that the words of the condition are broad enough to include any assignment, either of the policy, as such, or of the amount that may be due under it in the eve^t of loss. In considering this argument, it is necessary to remember that restraints on alienation are to be strictly construed. Of two interpretations, that is to be preferred which reconciles their operation with the general principle that every one may give what he possesses or is entitled to receive. A man who contracts with one person may well refuse to permit another to become a party to the agreement. This is peculiarly true when the relation is one of trust and confidence, which is necessarily the case betAveen the insurers and the insured. The former may therefore properly require that they should not be put under an obligation to indemnify a third person by an act to which they do not agree. But a provision that the insured shall not be permitted to transfer the amount that may become due under the contract as originally made, is a very different thing. Rights of action ex contractu are in the contemplation of equity as susceptible of alienation as rights which have been reduced into possession. In either case a restraint imposed capriciously without a sufficient cause, is contrary to good policy and void. “ It is accordingly established that the right of action arising from a loss may be transferred subsequently without the consent of the insurers, notwithstanding the express provision that if such an assignment be made, ‘ the policy shall be void, and all liability of the company under it shall henceforth cease.’ The West Branch Insurance Company v. Helfenstein, 4 Wright 289. Woodward, C. J., said that ‘however competent it might be for the company to make the contract of insurance dependent upon such a condition, it was not competent for them to limit the legal effect of a claim upon them after a loss. The insured acquired by reason of the loss, a legal right to receive so much money from the hands of the company. That chose in action he might assign. The condition appealed to was not a defence. If it was applicable to a case like that under consideration, it was void and null because opposed to the law of the land. “ In this instance, the assignment was subsequent to the loss; but the reasoning of the Chief Justice is not less in point where the transfer is made, previously and designed to take effect when the loss occurs. A man cannot, it is said, assign the freight of the ship which he is about to build, or the wool of the sheep which he intends to buy; but a contingent right depending on an existing contract is assignable in equity, and for some purposes, at law. “ These views are sustained by the cases of Cresswell v. The Brooklyn Eire Insurance Company, 39 Bark. 227, and Shotwell v. The Jefferson Insurance Company, 5 Bosworth 247, which bear a close analogy to the present, and are indeed identical in principle. The former case was virtually a bill in equity by an unpaid vendor to have the benefit of an insurance effected by the purchaser. It appeared from the evidence that the vendee had gone into possession under an agreement to keep the premises insured as security for the unpaid balance of the purchase-money. A policy was taken out in pursuance of this agreement, which contained the following proviso: ‘ The interest of the insured in this policy is not assignable unless by consent of this corporation, manifested in writing. In case of any transfer or termination of the interest of the insured, either by sale or otherwise, without such consent, this policy shall thenceforth be void and of no effect.’ “ The court held that if the interest of the assured had been assigned without consent, it would have been a breach of the condition, and no recovery could have been bad on the policy by any one. It was, however, established under Mellon v. The Eranklin Fire Insurance Company, 17 New York 609, that such a clause did not apply to a transfer of the policy, or of the claim arising under it, after the happening of a loss. In the case before the court, the plaintiff was not an assignee of the policy in the sense of the condition, nor did his claim arise through a transfer of the interest covered by the insurance. His true position was that of an equitable assignee of the right of the purchaser to compensation for the destruction of the premises. It had been contended that an equitable assignment of the policy of insurance was as much within the prohibition of the policy, and within the mischief it was intended to prevent, as a legal assignment. It was not necessary to consider the truth of this proposition, because the right which plaintiff had acquired was not to the policy as such, buffo the money due as compensation for the loss. Such an assignment was not equivalent to an assignment of the policy, whether made before or after the occurrence of the injury. The short answer to the objection made on behalf of the insurance company, was that the plaintiff was an equitable assignee of the fund arising out of the obligation of the contract, and not of the policy, and therefore not within the clause prohibiting the assignment of the policy. The distinction was drawn with much precision in Shotwell v. The Jefferson Insurance Company. The plaintiff effected an insurance on his real estate, Avith a proviso that the premises should not be alienated, or the policy be assigned without the consent of the insurers. He subsequently sold the house, and covenanted to keep it insured for the benefit of the vendee. The latter went into possession, and paid the purchase-money except the last instalment of $1500. It was held, under these circumstances, that the policy was not avoided by the sale. The vendor might recover to the extent of his insurable interest, or, in other words, so far as he was prejudiced by the loss. The judgment must, however, be limited to the amount of the purchase-money. There could be no recovery under the policy for the injury sustained by the vendee. In this regard, it made no difference that the vendor had covenanted to keep the premises insured for the benefit of the purchaser. This stipulation operated as an equitable assignment of any demand that might accrue in his own right; but did not confer an independent right on the covenantee. The consent of the insurers was requisite to the transfer of the policy as an insurance, it was not requisite to the transfer of the policy as a demand. It followed that the insurers were not entitled to subrogation to the lien for the unpaid purchase-money. If such a right could have arisen under other circumstances, it wás precluded by the covenant which operated as an implied assignment, entitling the vendee to have the fund applied to the extinguishment of the unpaid balance of the purchase-money. We may, therefore, draw the following inferences with regard to the case in hand: 1st. That the assignment should be viewed as a transfer of the claim for damages in the event of loss, and not of the policy as a contract to insure; and next, that this claim might be transferred without the consent of the insurers, notwithstanding any provision to the contrary in the contract. If, however, we thought differently on these points, we should still be of opinion that the plaintiffs were not entitled to judgment. The policy is against losses by the perils of the sea; and might, consequently, pass to any one who acquired a title to the vessel unless restrained : Powles v. Jones, 13 M. & W. 101. The restraint imposed was not absolute, but that no transfer should be valid without the consent of the insurers, ‘ unless the premium had been paid or the note given therefor was further secured by the previous endorsement of the person or persons for whose benefit the assignment was intended.’ The premium was not paid when the insurance was effected by Trask, nor was the note given for it endorsed by Bell when the policy was subsequently transferred; but on the 16th of September 1868, the garnishees came to a settlement with Messrs. Moody & Telfair acting for Bell, by which it was agreed that the loss should be paid to him after deducting the amount of a judgment which had been obtained for the premiums due by Trask. This arrangement took place prior to the attachment, and with full knowledge that Bell claimed as assignee. The effect was to satisfy the premiums by setting them off against the amount due under the assignment. It was, therefore, not only an admission by the garnishees that the assignment was valid, but a bar precluding them from alleging the non-payment of the premium as a reason why it should be void. A provision against the transfer of a policy is intended for the benefit of the insurers, and, if waived by them, cannot be set up by a creditor under a subsequent attachment. “ The case is, therefore, against the plaintiff in every respect, and judgment is entered for the garnishees on the points reserved.” The plaintiffs took a writ of error. The specifications of error were:— I. Reserving the 2d point, because the statements therein contained were not agreed to by the parties, nor was there any evidence to support the same. 2 and 3. Not entering judgment for the plaintiff on the verdict; and entering judgment for the garnishee on the points reserved non obstante veredicto. A mortgagee, as such, has no interest in an insurance by the mortgagor : Phillips on Ins., § 405. A “ policy for whom it may concern” is for the benefit of those who are, in the contemplation of the parties, making the insurance: 2 Duer on Ins. 30-34; 2 Phillips on Ins., §§ 379-383; De Bolle v. Ins. Co., 4 Wharton 68; Steele v. Franklin Ins. Co., 5 Harris 290. The assignment was invalid under the last clause of the policy, 1st, because the premium had not been paid, nor the note given therefor secured by the endorsement of the assignee: 2d, because the consent of the insurers was not obtained. The restriction is valid: Ferree v. Ins. Co., 17 P. F. Smith 373; 1 Phillips on Ins. § 107; 1 Parsons on Marine Ins. 60; and it is doubtful whether a transfer before loss of the amount, if any, that might become due under the policy, would be sustained. The confidential relationship between the insurer and the insured still exists. It would very palpably have been a mere device to avoid the effect of the condition. The 2d point was improperly reserved: the facts, upon which the point reserved arises, must be either admitted on the record, or found by the jury: Wilson v. Steamboat Tuscarora, 1 Casey 317. There was no evidence of the facts assumed by the court to exist. The words, “for whom it may concern,” and loss if any payable to assured or order, imply an intention to cover other interests than that of the insured, and constitute an express waiver of the condition requiring the assent of the insurers to an assignment: 1 Parsons on Ins. 55, 56; Nat. Ins. Co. v. Crane, 16 Md. 260; Brown v. Roger Williams Ins. Co., 5 R. I. 394; Rogers v. The Traders’ Ins. Co., 6 Paige 583; 1 Parsons on Ins. 65. The assignment to which the restraining clause in a marine policy is intended to apply, is an absolute assignment, not an assignment to a mortgagee as collateral: 1 Parsons on Ins. 59; Ellis v. Kreutzinger, 27 Missouri 311; Folsomb v. Belknap, 10 Foster 231; Lazarus v. Commonwealth Ins. Co., 5 Pick. 76; Prices. Tower, 1 Gray 426; Mellen v. Hamilton Ins. Co., 17 N. Y. 635. There was an express waiver of the condition when the garnishee, prior to the attachment, and knowing of the assignment, agreed upon a settlement of the loss. Such waiver may be by parol: Penna. Ins. Co. v. Bowman, 8 Wright 89; Buckley v. Garrett, 11 Id. 204. A policy of insurance is transferable like any other chose in actiou, and without notice to the underwriters, vests an equitable interest in the assignee: 1 Parsons on Ins., p. 52; Godin v. London Ins. Co., 1 Burrows 496; Wells v. Archer, 10 S. & R. 412; 1 Phillips on Ins. 98. A clause prohibiting assignments after loss, is void: West Branch Ins. Co. v. Helfenstein, 4 Wright 289. A chose in action, equitably assigned, is not liable to attachment: Canal Co. v. Ins. Co., 2 Phila. R. 354; Nesmith v. Drum, 8 W. & S. 9; Watson v. Bagaley, 2 Jones 164; United States v. Vaughan, 3 Binn. 394; Pellam v. Hart, 1 Barr 263; Cromwell v. Brooklyn Ins. Co., 39 Barbour 227; Dickinson v. Philips, 1 Id. 454; Carter v. Rocket, 8 Paige 437; Providence Bank v. Benson, 24 Pickering 204; Drake on Attachment, § 204. An attaching creditor stands upon no better footing than his debtor: United States v. Vaughan, 3 Binn. 394; Dix v. Cobb, 4 Mass. 508; Walker v. Coover, 15 P. F. Smith 430; Drake on Attachment, § 608 et seq.; Walters v. Washington Ins. Co., 1 Iowa 404.
71 Pa. 40Fisher v. Rush (1872)
1. Pislier, being life-tenant, leased to Harding for ten years, at a money rent, Harding also to take down an old building and erect a new one; the remaindermen agreed that the lease should continue during the term, although Fisher should die. Rush erected the building and entered a lien for the erection and “alteration, repairing and improvement.” Eeld, 1. The lease was a contract with Harding for the erection of the building. 2. Fisher was the person in possession at the commencement of the building, at whose instance it was erected, and was within sect. 24, Act of April 28th 1840. 3. The Act of August 1st 1868 does not apply, the words “ alteration, repairing and improvement” in the lien being surplusage. 4. The lien could be sustained. 2. Bush took notes from Harding for the amount due him, on which judgment was recovered: Hád, that the notes did not relieve the lien. Per Stroud, J.
71 Pa. 44Wistar v. Philadelphia (1872)
1. The city of Philadelphia has no power to open a street without paying or giving security to the owner of the land for damages. 2. The city has no power to construct a culvert in a street not opened, although laid out. 3. A street was laid out and viewers appointed to assess damages; they reported no damages to Wistar; he filed exceptions ; the city could not open the street while proceedings were pending without giving security for the damages. 4. While the proceedings were pending the city made a culvert in the street: Held, that a municipal claim for the cost could not be sustained against Wistar.
71 Pa. 47Evans v. Chew (1872)
1. The 67th sect, of Act of February 24th 1834, coniines powers extended to administrators c. t. a. to those given to executors virtute officii, and not to a power of sale collateral to their duties as executors or unconnected with them. 2. A general power to sell will be presumed to be for the payment of debts. 3. A purchaser is not required to call for an account, or an inventory of personalty, or list of debts. 4. A power to sell for the purpose of distributing the proceeds amongst persons named in the will, is a power belonging to the executor, virtaie officii, as well where the power is discretionary as where the direction is absolute. 5. Ross v. Barclay, 6 Harris 179 ; Waters v. Margerum, 10 P. F. Smith 39, explained.
71 Pa. 53Dickerson v. Peters (1872)
Writ of error to the Court of Common Pleas of Philadelphia: No. 13, to July Term 1871. The proceedings in this case were commenced, January 14th 1870, by the petition of Emanuel Peters, setting forth a resolution, of the councils of Philadelphia directing the department of highways to make “a contract with a competent paver who shall 'be selected by a majority of the owners of property fronting on Orthodox street from,” &c., on the condition that the contractor shall collect the costs of paving from the property-owners, and enter into an obligation to keep the street in repair for three years; that under that resolution a majority of the owners of property on Orthodox street, &c., selected the petitioner as a competent paver to do said paving; that after 'the selection, the petitioner gave notice “in two daily papers having the largest circulation,” &c., as required by the ordinance of councils, that on the 3d of December 1869 he would apply to the department for the contract; that on the day mentioned he applied to Mahlon H. Dickerson, James Work and Hiram Hooker, the commissioners of highways, for the contract, informing them of his selection by a majority of the owners of property; that he was ready to enter into the contract and the obligations, &c.; that notwithstanding the foregoing facts and that the petitioner was a competent paver, the commissioners of highways refused to enter into a contract with him. The prayer was for a mandamus to the commissioners of highways to enter into contract with the petitioner for paving Orthodox street, &c. An alternative mandamus, returnable January 22d, was issued. On that day the defendants made return, denying that the petitioner had been selected by a majority of the owners of property on Orthodox street from, &c.; that the surveyor of the district had certified to the defendants that a majority of such owners had selected Johnson & Faunce; that the petitioner had filed a bill in the Supreme Court against the defendants in which the charging part is the same as in their foregoing petition and asking that the petitioner should elect between proceeding on that bill and this petition. Attached to the return was an agreement between a number of owners of property on Orthodox street fronting, &c., and Johnson & Eaunce to pave the street; with the certificate of the surveyor of the disti'ict that they were a majority of such owners. The petitioner by a replication traversed the allegations of fact in the return, and put himself on the country. On the trial of the issue, April 28th 1870, before Ludlow, J., the petitioner gave in evidence a list of property-owners on the part of Orthodox street to be paved, with a certificate of the surveyor of the district that the list contained the names of all such owners. Peters, the petitioner, testified that he presented to the commissioners of highways a paper signed by a majority of property-owners on the part of Orthodox street to be paved, selecting him as the paver, and certified by the surveyor on the 25th of September 1869 to be so, and upon the faith of the paper and at a cost of $45, he advertised his intention to apply for the contract; that he tendered a bond for his compliance with the conditions of the contract, and the commissioners refused to give him the contract. The defendants gave in evidence a paper in date subsequent to that of the petitioner, and containing a number of the names which were to that paper, certified by the surveyor to contain a majority of the owners of property, selecting Eaunce & Johnson as the pavers. This paper was presented to the commissioners of highways, December 1st 1869. The defendants requested the court to charge: That if there was not an exclusive selection of the relator, the defendants were vested with a discretion, and the verdict should be for the defendant. The court charged, that the selection made by the owners, in September 1869, of the relator, exhausted their power under the ordinance; and if that selection was acted upon by Peters, they were estopped from making any other selection after that without cause. The verdict was for the plaintiff (petitioner). On the 8th of April 18.71, after motions by defendants for a new trial and judgment non obstante veredicto, the court entered judgment on the verdict and awarded a peremptory mandamus. On the 12th of April the defendants took out a writ of error, and amongst other errors, assigned for error the charge of the court in answer to their point. A discretion was vested in the commissioners: Conner v. Board of Health, 7 Phila. R. 629; Laughlin v. Kneass, Id. 634. A mandamus could not issue to direct commissioners how to decide: Commonwealth v. Perkins, 7 Barr 44; Resp. v. Clarkson, 1 Yeates 46; United States v. Lawrence, 3 Id. 42.
71 Pa. 56Garsed v. Turner (1872)
Error to the District Court of Philadelphia: Of July Term 1871, No. 14. This was an action on the case commenced September 15th 1869, by John B. Turner against Richard B. Garsed, Henry T. Garsed and Alfred W. Garsed,. trading as Garsed & Brothers. The declaration was that in consideration of the plaintiff renting from the defendants two buildings at $400 rent, to carry on dyeing and bleaching, the defendants promised to lease him the buildings, furnish him with water and the machinery in the dye-house, the plaintiff to furnish the additional machinery required, with the right at the end of the lease to remove it, if not purchased by defendants; to give him all the dyeing and bleaching they might require, and pay him at the customary price; to use their influence to obtain for him similar work from others; to give him a lease for five years; that the plaintiff fitted up the premises for dyeing and bleaching and put machinery in them. The plaintiff averred his readiness to perform his part of the agreement, that he had offered to take the buildings and to do the dyeing and bleaching defendants might give him or procure for him and pay the rent: but the defendants would not rent the premises to him or allow him to use them or any of the machinery in them, nor give him dyeing and bleaching work, nor procure him such work from others, nor give a lease of the premises as agreed on. The damages claimed were the amount expended in fitting up the premises and putting in the machinery; loss of profits plaintiff would have made in dyeing and bleaching. The case was tried January 30th 1871, before Hare, P. J. The plaintiff testified that he was a dyer and bleacher; in 1869 he met Richard Garsed, who asked plaintiff to take his work of dyeing; said he would give plaintiff a lease of dye-house, drying-house, &c., and all their work, and would do his best to get work from others; plaintiff asked him to put'his proposition in writing, which he did by following letter:— “Philadelphia, February 5th 1869. “ Jno. B. Turner, Esq.: “ Dear Sir: As I feared, I was compelled to go over to New York, hence the delay in answering you. I will rent you the two buildings for dye and bleach house, as they are, furnishing you water, and the use of all machinery now in the dye-house; any additional machinery required you must furnish at your own expense, and at the end of lease, — if we do not agree as to purchasing the same, — you of course are to be at liberty of removing the same. “ I will give a lease for five years, or less, and will give our work so long as it is done satisfactorily, and use every influence to procure work for you. The rent to be four hundred dollars per annum.” Plaintiff told him the letter was satisfactory, and he would come; he took possession May 1st; he was ready and began to fit up the place. He described the machinery which he put in and stated its cost; stated that he hired a man to help him and his wrages; the value of plaintiff’s own time; he bought drugs and had everything ready; asked defendants several times for work, they said they had none; after being there eighteen weeks he came away; the defendants had his improvements and were using them. The plaintiff gave other evidence to show his contract, the amount expended, and the damage sustained by him, and generally in support of his case. The defendants gave evidence in answer to the plaintiff’s case. Several exceptions, not important to specify, were taken by dezendants to the admission of evidence. No points were submitted to the court. The court charged:— “ If the contract was broken by the defendants, the plaintiff is entitled to be put in the same position, pecuniarily, as he would have been if the contract had been kept, regard being had to' the fact that the plaintiff soon afterwards obtained other employment. There is a difficulty in this case, from the fact that the plaintiff had incurred considerable expense in fitting up the dye-house; but still the evidence shows that the defendants were willing that the plaintiff should remove the articles that he put there, so that the only loss in regard to these articles would seem to be the loss of a favorable opportunity of making profit by them.” The verdict was for the plaintiff for $2500. The defendants took a writ of error. In two specifications they assigned the charge for error.
71 Pa. 60Springer v. Phillips (1872)
Error to the District Court of Philadelphia: No. 27, to July Term 1871. This was an action of covenant, commenced November 19th 1870, by Benjamin Phillips, alienee of Oliver Parry and Rachel R. his wife, and Nathaniel Randolph against John Springer, with notice to Conrad Wittich, terre-tenant. It was brought to recover the principal reserved in a ground-rent deed dated March 30th 1862, between Parry and wife and Randolph of the first part and Springer of the second part. By the deed the grantors conveyed to the grantee a lot of land in Third street, Philadelphia, in consideration of one dollar and the “performance of the covenant and agreement,” thereinafter mentioned. The reservation was: “Yielding and paying therefor and thereout unto the said Oliver Parry and Nathaniel Randolph, their heirs and assigns, the yearly rent or sum of fifty-four dollars lawful silver money of the United States of America, each dollar weighing, &c., in equal half-yearly payments on the first day of the third and ninth months in every year hereafter for ever.” * * * The deed further provided: “ That if the said John Springer, his heirs or assigns, shall and do at any time, within ten years from the date hereof, pay or cause to he paid to the said Oliver Parry and Nathaniel Randolph, their heirs or assigns, the sum of $900 lawful money as aforesaid; and the arrearages of the said yearly rent, to the time of such payment; then the same shall for ever thereafter cease and be extinguished, and the covenant for the payment thereof shall become void; and then they, the said Oliver Parry and Nathaniel Randolph, their heirs or assigns, shall and will, at the proper costs and charges in the law of the said grantee, his heirs or assigns, seal and execute a sufficient release and discharge of the said yearly rent hereby reserved to the said John Springer, his heirs and assigns for ever,” &e. And the said John Springer, for himself, his heirs, executors, administrators and assigns, doth hereby covenant and agree to and with the said Oliver Parry and Nathaniel Randolph, their heirs and assigns, to pay the said principal sum of $900, within the period of ten years from the date hereof, in extinguishment of said ground-rent, and in default thereof the same may and shall be forthwith recoverable by the said Oliver Parry and Nathaniel Randolph, their heirs or assigns, against the said John Springer, his heirs and assigns, with all arrears of said rent, and be first payable out of the proceeds of the sale of the said premises under any judgment for said principal sum, and upon payment and satisfaction of such judgment with all arrears of said rent to the date of such payment, the said ground-rent shall forthwith cease and become extinguished as aforesaid.” * * * By deed, Parry and wife and Randolph assigned the deed, &c., to Phillips. Wittich, the terre-tenant, filed an affidavit of defence, averring: That he has paid to the plaintiff the annual rent above reserved in full. That he is advised, and believes, that the plaintiff cannot set up and claim anything, on account of the' covenant made by the original parties to said deed — the one to extinguish said rent, the other to pay $900, the consideration therefor. 1. Because such covenants are not assignable at law, and that this was not, in fact and in terms, assigned to plaintiff 2. That no deed of extinguishment was tendered to defendant before suit brought. 3. That the assignment of said rent to plaintiff worked a dissolution and breach of said covenant on the part of plaintiff’s vendors, and that the said covenant thereupon became void, and was mutually waived, abandoned and extinguished. 4. That neither the plaintiff nor this deponent are parties or privies to said covenant. 5. That the said supposed breach, if any, on the part of affiant occurred on the 30th day of March, A. ». 1862, and thereupon, a right of action, if ever, accrued to plaintiff on said covenant to recover the said $900, with interest in currency; but the plaintiff did not then, nor in any reasonable time afterwards, tender his deed of extinguishment and demand his money with interest, but on the contrary waived and relinquished said breach, if any there was, and deiñanded ground-rent in specie as reserved in said deed; and in consideration of the premises, this affiant did agree to pay, and in fact has paid, to the plaintiff, from time to time, all the ground-rent as the same became due, in specie, up to the present time. Wherefore he says that the supposed breach, if any there were, has by mutual agreement, and for a sufficient consideration, been condoned, tolled, and the covenant rescinded before suit brought. It was admitted by agreement in writing, that the ground-rent had been paid in specie, by Wittich the terre-tenant, on March 1st 1871. The court entered judgment for the plaintiff for want of a sufficient affidavit of defence. Wittich the terre-tenant took out a writ of error. The covenant was personal between the grantors and Springer the grantee: Congleton v. Pattison, 10 East 180; Coke Litt. 215 b; Spencer’s Case, 5 Reports 16. The covenant being mutual and dependent, the party suing must allege and show performance: Stokes v. Burrell, 3 Grant’s Cases 242; Bank v. Hagner, 1 Peters 464; 2 Smith’s Leading Cases 26, note 5. Acceptance of rent after breach is a waiver: Newman v. Rutter, 8 Watts 55. The covenant runs with the land and may be enforced by the assignee: Hurst v. Lithgrow, 2 Yeates 24. The covenant to pay the principal to assignee binds as the covenant to pay the rent. The deed is to be construed according to the intentions of the parties: Newman v. Rutter, 8 Watts 51; Bear v. Whisler, 7 Id. 144. Plaintiff and defendant are privies in contract and estate: Thomas’ Co. Lit. 506; 2 Prest. Conv. 327, 345; Bouvier’s Law Diet., tits. Privies, Privity of Estate, Privity of Contracts. This is not a forfeiture, nor an entry, nor a penalty: 2 Bl. Com. 267; Wharton’s Lexicon, tit. Forfeiture. This action is the demand: Byles on Bills 170, 361. The covenant to pay the principal is distinct from the covenant to pay rent, and so is not affected by the receipts if the receipts are to be construed as receipts for the rent: Bear v. Whisler, 7 Watts 144; Irvine v. Campbell, 6 Binney 118.
71 Pa. 64Kraut's Appeal (1872)
Appeal from the decree of the Court of Common Pleas of Philadelphia: In Equity : Of July Term 1871, No. 68. The bill was filed at December Term, 1869, of the Common Pleas, by John Gr. Kraut against William Fox, Rachel Fox, John Nace and Sarah Nace: afterwards Matthew Craig was added as defendant. The bill averred that on the 14th of July 1859, Frederick Fox conveyed to the plaintiff a messuage and lot of ground on the south-westerly side of Savery street in Philadelphia, and extending south-westerly 60 feet, bounded on the north-east by Jacob Kurtz; south-west by other land of Fox; south-east by Eliza Miller “ with the right, &c., of a passage-way into Marlborough street, over and across the remaining ground of the said Frederick Fox, adjoining the lot thereby granted on the south-west for ever thereafter whenever, &c., the same might be required for the purpose of conveying the filth from the privy-well sink on the said thereby granted lot into the said Marlborough street,” that the defendants’ title was under Frederick Fox, and was bound by the said grant of a passage-way ; that the lots of William Fox, Sarah Nace and Matthew Craig were part of the “ remaining ground ” of Frederick Fox adjoining the plaintiff’s premises, and they derived their title from Frederick Fox by deed dated subsequently to the conveyance to the plaintiff; that the plaintiff’s privy-well was full of filth, and he had been notified by the Board of Health to remove the same, that he had so notified the defendants, but they refused “ to let him use the said passage-way although a passage and entry was made and left open over, across and through the premises of the defendants, William Fox and Sarah Nace, for the express purpose of being used for clearing and carrying away the filth from said privy-well, and they had threatened complainant with violence, &c., if he attempted to proceed through said passage-way and entry,” &e.; that the defendants William Fox, Rachel Fox, John Nace and Sarah Nace were preventing him from carrying away, &c., as he had the right to do. The prayer was that the defendants he restrained from prevent-' ing his removing the filth, &c., and for further relief. William Fox, Rachel Fox, John Nace and Sarah Nace answered that they resided on the property on Marlborough street, which belonged to Sarah Nace and William Fox, and on which is erected a house “for over forty years,” covering the whole front of the lot. The property adjoining on the northwardly side at the date of the conveyance to the plaintiff had no building on it and was then the property of Frederick Fox, from whom these respondents derived title: there was a fence between the plaintiff’s property and this adjoining property in which was a gate from plaintiff’s lot to the adjoining ground, which these defendants averred was the “remaining ground of Frederick Fox: — this ground belonged to Matthew Craig. These defendants denied that Frederick Fox made a passage in his house to carry the filth through the house now belonging to them; there was an entry through the house made by Frederick Fox for the convenience of his family; Frederick Fox in his lifetime and these defendants since his death, denied the claim made by the plaintiff. These defendants denied the right of the plaintiff to carry the filth through the entry; denied that Frederick Fox conveyed such right to the plaintiff, or that the words “ over and across the remaining ground ” gave the plaintiff the right to carry through the house. Craig answered, admitting according to his belief that Frederick Fox conveyed the premises and passage-way to the plaintiff as stated in his bill. On the 24th of August 1860, Frederick Fox conveyed to this defendant free from any condition or reservation a lot of ground on the north-east side of Marlborough street and at that time Frederick Fox owned a lot and messuage adjoining the defendant on the south-east; Frederick Fox died intestate in possession of the said messuage and lot. and seised of them, and the other defendants were his heirs. About the time of the sale by Frederick Fox to this defendant, he had opened an entry or passage “ through, over and across his remaining ground, that is to say over and through the messuage and lot of ground, which he himself occupied, and which adjoined ” this defendant’s lot; that this passage was once or more used by the plaintiff during Frederick Fox’s lifetime “with his knowledge and consent and in ex-t ercise of the privilege granted to the plaintiff for the purpose of conveying the filth, &c., into Marlborough street.” No such way had ever been opened over this defendant’s premises; the plaintiff never used his lot or claimed the right to do so in exercise of his privilege; but “ the passage or alley above set forth was selected and used by Fox and the plaintiff for that purpose.” This defendant set out his legal defence as follows:— “ 1. That the plaintiff being the grantee of Frederick Fox, of a privilege or right of way over the remaining ground of Fox, and such way at first indefinite, having been designated or agreed upon or fixed by use and acts of acquiescence of the parties, it cannot be changed by the plaintiff or by the heirs of Frederick Fox, or by any one else to my prejudice. “ 2. That having purchased my lot of Frederick Fox, clear of encumbrance and without condition or reservation; as between the heirs of Frederick Fox and myself, the plaintiff’s privilege must be exercised over the ground of which Frederick Fox died seised.” A replication was filed, and Joseph T. Ford, Esq,, was appointed examiner. Before him Lewis- Holsworth testified that Kraut had carried his filth over Fox’s property: that Frederick Fox, the father of William Fox, and Sarah Nace had told witness that the man who bought the property next to him would not have bought it if the alley had been on the other side, and that he told Kraut that the passage-way for carrying the filth was the entry through the house ; the property “ on the other side ” was an open lot; Kraut had used this entry for the purpose twice to Marlborough street; Kraut always claimed the right, and Frederick Fox never said anything against it. Craig was the owner of the lot “on the other side.” Kraut the plaintiff testified that when he first purchased, he carried the filth through the lot now Craig’s: Craig bought about a year afterwards, and closed the entrance into his lot, and on speaking to Fox he told him he would give him an outlet and make an entry through his house; he did so and Kraut used it twice for carrying the filth and nobody stopped him. Other witnesses testified that Fox had made the entry, on purpose to carry the filth of Kraut through it, and that Kraut had used it for that purpose twice. Mrs. Nace and William Fox are the children of Kraut’s grantor. The conveyance from Fox to Kraut was July 14th 1859, as set out in the bill; from Fox to Oraig August 14th 1860. The court awarded an injunction against Oraig, restraining him from preventing Kraut from carrying his privy filth across his, Craig’s, lot, and refused the injunction as to the other defendants. Kraut appealed to the Supreme Court, and assigned for error the refusal of the injunction against the latter defendants. Where a right of way by deed is without fixed limits, the use of the way acquiesced in by the grantor is deemed to be that intended to be granted: Gale and Whately on Easements 344; Hall v. Fuller, 2 Vermont 199; Washburne on Easements 41, 185; Comyn’s Dig. Chimin D. 5; Wynkoop v. Berger, 12 Johnson 222; Stone v. Clark, 1 Metc. 371; Jennison v. Walker, 11 Gray 423; Katmuller v. Krotz, 18 Iowa 352; Jones v. Percival, 5 Pick. 485; Lefevre v. Lefevre, 4 S. & R. 241. The right to pass through defendants’ house could not be shown by parol: Barnet v. Dougherty, 8 Casey 372; Richardson v. Campbell, 1 Dall. 10; Litle v. Henderson, 2 Yeates 295; McWilliams v. Martin, 12 S. & R. 269; Collam v. Hooker, 1 Rawle 108; Shepherd v. Watson, 1 Watts 35. A writing relating to lands cannot be varied by parol: Seitzinger v. Ridgway, 4 W. & S. 472; Simpson v. Murray, 2 Barr 76; Woods v. Wallace, 10 Harris 171; Best v. Hammond, 5 P. F. Smith 412.
71 Pa. 69Evans v. Waln (1872)
Error to the District Court of Philadelphia: No. 119, to July Term 1871. This was an action of assumpsit, brought March 27th 1871, by Edward Wain and others, executors, &c., of S. Morris Wain, deceased, against Manlius Gr. Evans and others, trading as Evans, Wharton & Co. The plaintiffs being owners of 2033 shares of Columbus, Chicago and Indiana Central Railroad stock, employed Markoe & Brother, brokers in Philadelphia, to sell them. The stock was sold by the defendants, brokers in New York, through the agency of Frank Wister, another broker in Philadelphia. Wister failed, in debt to -the defendants whilst the proceeds of the sale of the stock were in their hands, in remitting the proceeds, they withheld the amount of his indebtedness. The suit was brought to recover this amount. The ease was tried May 31st 1871, before Stroud, J. Wister testified that he had been employed to sell the 2033 shares of stock, which belonged to the estate of S. Morris Wain, deceased, his instructions were from Markoe & Brother, he sent the order to the defendants by the following telegrams : “Philadelphia, March 7th 1871. E. W. & Co.: Sell five C. C. & I. C. — best seller there — don’t press — have a lot for sale — can be shipped to-day if absolutely necessary. Wister.” “Philadelphia, March 8th 18T1. Evans, W. & Co.: Work off fifteen hundred and thirty-three at best. Don’t hurry, and quote C. C. & I. 0. income bonds. Wister.” In pursuance of these, the stock was sold by the defendants; the certificates had never been in his possession; Markoe & Brother attended to the rest of the business: he informed defendants in a conversation previously, that he thought he would have the sale of the stocks, and that it belonged to the estate of Mr. Wain. He did business with defendants on his own account, as well as for his customers. On cross-examination he testified, “ It is the custom for a broker who is employed to sell stock, to receive the proceeds thereof and pay the principal. I could not say what the custom is between brokers of different cities. It is not uniform.” The following questions were put to the witness, they were objected to by the plaintiffs, rejected by the court, and several bills of exception sealed. “ At the time these orders were given were you not indebted to the firm of Evans, Wharton & Co ?” “Was it not your custom in dealing with Evans, Wharton & Co., to keep one account of all your transactions ?” The counsel for the defendants on being asked, said thab he did not intend to follow the question by showing that the plaintiffs were acquainted with such custom. Wain, one of the plaintiffs, testified that he gave Markoe & Brother the order to sell the stock and suggested that it would be agreeable to witness, if they would share the commissions with Wister; he understood Wister was associated with them in effecting the sale: the stock was not saleable in Philadelphia. Markoe & Brother returned to the plaintiffs account sales as having been made in New York: he knew stock had been sold through the defendants. He did not see Wister in the transaction ; the plaintiff never communicated directly with the defendants ; he first heard of Wister’s failure about the closing of this transaction. John Markoe, of the firm of Markoe & Brother, testified, that the firm was employed to sell the stock. Mr. Wain knew the condition of the Philadelphia market and instructed them to sell it, he knew through whom they would sell it; it was sold by the defendants; the'stock brought $42,621.22; Markoe & Brother received $41,491.99 from defendants, leaving due $1129.23 ; the orders'to sell the stock were given in the name of Markoe & Brother. Witness said : “ When stock is sold regular it is generally deliverable the next day.” The defendants asked witness as follows : “ When stock is sold regular and not delivered the next day, is not the broker to whom the stock is sold obliged to borrow stock in order to fill his contract with his principal ?” The plaintiffs objected to the question, it was rejected by the court and a bill of exceptions sealed. The plaintiffs then gave in evidence seven telegrams dated March 7th and 8th 1871, from the defendants to Wister ; two of them respectively informed him of the sales of “ 300 0. C. & I. 0.” and‘‘20,0 0. 0. &I. C.” The defendants then gave in evidence the following telegrams : Phila., March 9th 1871. C. Evans, care Evans, Wharton & Co.: I have stopped. I owe Treichel ten Reading at two. Deliver these, if you have enough to make you whole. Keep the Erie, if you can; but I don’t want you to suffer. The Columbus will be shipped by Markoe. Answer to this main office. Wister. Phila., March 9th 1871. Evans, Wharton & Co.: Notification by letter reports sale of only nineteen hundred and thirty-three shares (by wire yesterday, two thousand and thirty-three shares). Suppose latter is correct. Have shipped stock to-day. Remit to us. Markoe & Bro. Phila., March 9th 1871. Evans, Wharton & Co.: Have had no answer to our despatch. Markoe & Bro. N. Y., March 9th 1871. Markoe & Bro.: • We sold one hundred to Marx Co. at West, and omitted to notify by mail. Do you want the entries to go into your account, or into Frank’s ? What are his liabilities ? E., W. & Co. Phila., March 9th 1871. E., W. &Co.: Our account. We ship all the stock to-day. Advise us that you remit. Don’t know poor F.’s liabilities. Markoe & Bro. N. Y., March 9th 1871. Markoe & Bro.: Our friend owes us about six hundred. If you will ship the C. C. & I. C., we will remit (less that amount) to-day. If not, we must buy in sufficient stock to protect us. Answer quickly. E., W. & Co. Phila., March 9th 1871. E. W. & Co.: Do not think it ought to be included, for shipment. I have the stock ready Markoe. N. Y., March 9th 1871. Markoe & Bro.: Please answer our first despatch, do not delay as you are removing our chance of protection. E., W. & Co. Phila., March 9th 1871. E., W. & Co.: You have asked for whose account and have been answered. The stock was sold for account of customer of ours. Markoe & Brother. N. Y., March 9th 1871. Markoe & Bro.: Please send order to cover. E., W. & Co. Phila., March 9th 1871. E., W. & Co.: Do not cover. We áre ready to deliver. Markoe & Bro. N. Y., March 9th 1871. Markoe & Bro: Do not fail to ship stock to-night, in any event, as it is very scarce. We will give vou net balance to-morrow in Philadelphia. E., W. & Co. March 9th 1871. E., W. & Co.: All right, as far as shipment is concerned you could have had it before. Markoe & Bro. The defendants proposed to prove by Robert Grlendenning, a broker, that it is the custom of stockbrokers when dealing with stockbrokers in other cities, to put all the transactions between them into one account, and to remit or draw for the general balance. This was objected to by the plaintiffs, unless to be followed by evidence that it was known to the plaintiffs, and the defendants’ counsel saying he did not so purpose, the court rejected the offer, and sealed a bill of exceptions. Cadwalader Evans, one of the defendants, testified that the defendants had not been informed when the orders were given, that the Markoes had anything to do with the transaction, except as friends’ of Wister. The plaintiffs in rebuttal gave in evidence three telegrams from Markoes to defendants and as many answers from defendants, all of March 7th and 8th 1871, and all relating to “ C. C. & I. C.” stock. The defendants submitted the following points, which the court declined to answer :— 4. If the jury believe from the evidence that F. Wister was unable to or did not fulfil his promise to deliver the said stock to the defendants on the ninth day of March 1871, then the defendants were not obliged to accept the subsequent delivery of said stock by Markoe & Brother, except upon such terms as they the defendants chose to agree to. 5. If the jury believe from the evidence that the defendants did not accept the delivery of stock by Messrs. Markoe & Brother, as the fulfilment of F. Wister’s contract, except upon the condition that the indebtedness of the said F. Wister to the said defendants was to be deducted from the proceeds of the sale of the said stock, the verdict must be for the defendants. 6. If the jury believe from the evidence that the defendants were employed as sub-agents for the sale of the said stock by Francis Wister, then they are accountable only to the said Wister and not to the plaintiffs, and the verdict must be for the defendants. The court charged the jury as follows:— “ If you find from the evidence that the stock sold by the defendants belonged to the plaintiffs, as the executors of S. Morris Wain, and the ownership was known to the defendants, that the order to sell the stock was given by Colonel Wister, that the defendants knew that he was a stockbroker, the plaintiffs are entitled to the proceeds of the sale of this stock, after deducting the commissions of the defendants for making the sale, and that the plaintiffs are entitled to the balance claimed.” The verdict was for the plaintiffs for $1144.48. The defendants took out a writ of error and assigned for error the rejection of their offers of evidence and declining to answer the points. Evidence of the custom of brokers under the circumstances of this case was admissible: Coles v. Bristowe, Law Rep. 4 Ch. App. 3; Maxted v. Paine, Id. 6 Exch. 132; Duncan v. Hill, Id. 255. The action could be maintained against defendants only the name of Wister: Stephens v. Badcock, 3 B. & Ad. 354; Sims v. Brittain, 4 Id. 375; Ireland v. Thomson, 4 C. B. 149; Addison on Contracts 587. The defendants could not be themselves the purchasers, while acting as agents for the sale: Story on Agency, §§ 9, 211; Tetley v. Shand, L. T. 25, C. P. xxv., N. S. 658. Even had they been purchasers of the stock from Wister, they could not have set off the debt in an action by the principal: Dunn v. Wright, 51 Barb. (N. Y. S. C.) 244; Fish v. Kempton, 7 M. G. & S. (62 E. C. L. R.) 687; Sweeting v. Pearce, 7 C. B. N. S. (97 E. C. L. R.) 449; Wigglesworth v. Dallison, 1 Sm. Lead. Cas. Part II., 687; Shaw v. Spencer, 100 Mass. 382; Markham v. Jaudon, 2 Hand. (41 N. Y. Court of App.) 235; Day v. Holmes, 103 Mass. 206; Coxe v. Heisley, 7 Harris 243. Assumpsit lies where the defendant has money of the plaintiff’s which, ex aequo et bono, he ought to refund: Nash v. Towne, 5 Wallace 689; Gilpin v. Howell, 5 Barr 41; Taintor v. Prendergast, 3 Hill (N. Y.) 72; Parker v. Donaldson, 2 W. & S. 9; Reeside v. Reeside, 13 Wright 322. It is really only an attempt to set off the debt due by Wister, which they are not entitled to do: Pratt v. Willey, 2 C. & P. 350 (12 E. C. L. R. 164); Grant v. Seitsinger, 2 Penna. R. 525; McNair v. McLennan, 12 Harris 384; George v. Clagett (7; T. R. 359), 2 Smith’s Lead. Cas. 197 (*185); Sheffer v. Montgomery, 15 P. F. Smith 329; Bousfield v. Wilson, 16 M. & W. 188.
71 Pa. 76Esser v. Linderman (1872)
1424-, to July Term 1871. On the 3d of May 1866, Henry R. Linderman and others, brokers in Philadelphia, trading as Linderman, Ely & Co., brought an action of assumpsit against George W. Esser, of .Mauch Chunk, to recover from him a balance which they claimed to be due them on their purchase of stocks for him. W. H. Ely, one of the plaintiffs, testified, that in 1865 the defendant wrote to the plaintiffs to purchase stock for him; the letter could not be found.
71 Pa. 81Taylor v. Young (1872)
Error to the District Court of Philadelphia: No. 143, to Julv Term 1871. This was an action of ejectment, brought May 14th 1870, by Richard Young against Sarah Taylor, for real estate in the Fifth ward, Philadelphia. The plaintiff claimed as purchaser of the land at sheriff’s sale as the property of-Robert Barnet, Jr.; the defendant defended as the guardian of the minor children of Barnet, who was dead, alleging that the title of Barnet had not passed by the sale, because he, being dead at the time of the judgment, no process had been issued to warn his representatives before execution had been issued. The case was tried April 12th 1871, before Stroud, J., when it appeared that Robert Barnet, Jr. executed a mortgage of the pre- . mises to Robert Barnet, senior dated February 25th 1857; the mortgage was assigned May 15th 1858, to Alexander Gibson:— Richard Barnet, Jr. died in possession of the premises on the 14th of July 1868. On the 16th of April 1869, Gibson as assignee, issued a scire facias on the mortgage against Robert Barnet, Jr., which was returned “ Nihil.” -On the 5th of May 1839, an alias scire facias, Gibson, assignee of Barnet v. Robert Barnet, was issued, which was returned “ nihil.” ' On the 10th of June 1869, the death of Robert Barnet, Jr. was suggested on the record. On the 3d of July 1869, judgment by default was entered for the plaintiff on two returns of “nihil.” To July Term 1869, a levari facias was issued; to September Term 1869 an alias levari was issued, and to December Term 1869 a pluries levari facias; each without warning the personal representatives of Barnet. Under the last writ the premises were sold by the sheriff to Sarah Taylor the plaintiff, and the deed acknowledged February 12th 1872. The defendant asked the court to charge: “ Sheriffs’ vendees buy at their peril. Not only must there be a legal judgment, but a legal execution also to make a sheriff’s sale valid, and therefore if the jury find that the writ of execution issued.subsequently to Barnet’s death, without bringing in by sci. fa. his personal repre- ' sentatives, the execution was void. Young took no title, and the verdict must be for the defendant.”. The court answered: — ■ “ I decline to charge as requested by the defendant. If you believe the evidence of the plaintiff, he has shown title in him, and the defendant has neither shown title iron any reason why the plaintiff should not recover.” The verdict was for the plaintiff. The defendant took a writ of error’, and assigned the charge of the court for error. cited Wood v. Colwell, 10 Casey 92; Cadmus v. Jackson, 2 P. F. Smith 295; Act of 24th February 1834, § 33, Pamph. L. 77; 2 Bright. Purd. 425, pl. 101. cited Warder v. Tainter, 4 Watts 270; Hartman v. Ogborn, 4 P. F. Smith 120; Colley v. Latimer, 5 S. & R. 211.
71 Pa. 95Weist v. Grant (1872)
1. Weist, without inspection, bought from Hickcox and Coryell, the owners, silver mines, upon their representation that they would yield a certain amount; the contract to be void if Weist should not approve the report of a selected assayer. After the report, Weist paid a large part of the purchase-money ; on working the mines by Weist, the product was only one-third of the representations. Held, that Weist was, liable for the remainder of the purchase-money, unless the misrepresentation was intentional. 2. Weist having bargained for the report of an assayer before being bound by the contract, and having acted on it, and there being no collusion or fraud, he was estopped from alleging misrepresentation in the inception of the contract. 3. Weist was garnishee in a foreign attachment against Hickcox : in the scire facias on the attachment, there could be a recovery Without first ascertaining the specific interest of Hickcox. 4. Primfi'facie the interest of the vendors was equal.
71 Pa. 100Woods v. Sherman (1872)
Error to tbe District Court of Philadelphia: No. 98, to July Term 1871. This was an action of assumpsit, brought November 7th 1870, by Roger Sherman and others, trading as Sherman & Co., against Thomas Woods. Tbe declaration was that tbe defendant guarantied to the plaintiffs tbe payment for printing books for Davis & Woods; that they proceeded to execute tbe work for Davis & Woods; that there were due to tbe plaintiffs $14,000, for which judgment bad been obtained and execution issued, but nothing realized. There was no further averment that the plaintiffs had complied with their contract. On the trial the plaintiffs offered in evidence the following paper: “ Philadelphia, July 11th 1868. I do hereby guarantee to Sherman & Co.j the payment of contract made by them with Davis & Woods, to the amount of ten thousand dollars. Thomas Woods.” The defendant objected to its admission because no consideration was stated in it. The court admitted the paper, and sealed a bill of exceptions. Sherman, one of the plaintiffs, testified that at the time the paper was executed, they had printed “ Davis’ Astronomy” to the amount of $3550.68, for Davis & Woods, or Professor Davis; Davis & Woods wanted a new edition, which plaintiffs refused to print without a guaranty; shortly afterwards the defendant in company with Davis & Woods came with the guaranty. In consideration of the agreement plaintiffs consented to print another edition. The work done under Davis & Woods’s order amounted to $13,200; in the fall of 1869, plaintiffs went to see Woods about the payments; he said : “You have earned your money and ought to have it.” Plaintiffs had received on account of the contract about $800; after the guaranty they had received $3070.95. Defendant was not told at the execution of the guaranty, that there was a balance due for old books, but he knew it: nothing was said about alterations. The books were in plaintiffs’ possession ; they frequently offered to deliver them. Expensive alterations were made on the books after the guaranty; the alterations were necessary by discoveries in science and improvements, and for the success of the work : the books in plaintiffs’ possession had all been sold by the sheriff; the defendant was present at the sale: Davis & Woods said they could not pay. The plaintiffs offered in evidence an execution issued by plaintiffs against Davis & Woods on a judgment for $13,867.88, for their debt, to which the return was “ nulla bona.” The defendant objected to the offer, it was admitted, and a bill of exceptions sealed. The defendant gave evidence that Davis & Woods owned land in Forest county, Pennsylvania, and 5000 acres in Virginia. Plaintiffs, in rebuttal, offered in evidence another execution at the suit of 'Sherman & Co., against Davis & Woods, to show the value of the goods in plaintiffs’ hands, which had been sold by the sheriff; also testatum fi. fa. in the same case, with sheriff’s return in each case. The offers were objected to by defendant, admitted,1 and several bills of exception sealed. Sherman testified, under objection and exception, that he bought about fifteen thousand of the books at the sheriff’s sale, and the defendant’s attorney bought about one hundred. The defendant’s points were: 1. If the jury believe that they had no contract with Davis & Woods when the guaranty was made, and that their contract was not completed until the order of July 13th was given, two days afterwards, and no notice was given to Thomas Woods of said order, there can be no recovery in this case. 2. It not having been shown by the plaintiffs that they had brought suit against Davis & Woods for the breach of the contract guarantied by the defendant; or, that they had obtained any judgment thereon, and it being admitted that they had on hand undelivered and unsold the identical books, for the printing of which, it is alleged by the plaintiffs, the guaranty was given, on which this suit is brought, there can he no recovery in this case. 3. The hooks printed for Davis & Woods never having been delivered or taken out of the possession of Sherman & Co., they have a lien on them for the price, and if sold at sheriff’s sale, whilst so in their possession, the purchaser at such sale would take subject to their lien for the unpaid price; and being still in their hands at the commencement of this suit, there can be no recovery in this case. 4. If Davis & Woods, or either of them, have property in Philadelphia, or in the state of Pennsylvania or elsewhere, liable to be seized and sold on an execution issued on a judgment obtained against them for the debt forming the subject-matter of the guaranty, and the property admitted by the plaintiffs to be in their hands is so liable, there can be no recovery in this case, and there can be no recovery against a guarantor until after the creditor shall have exhausted all the assets of the debtor. 5. This suit having been commenced on the 5th November 1870, and the execution offered in evidence for the purpose of proving the insolvency of Davis & Woods at that date, being returnable the first Monday of November 1870, which was the 7th day of November, two days subsequent to the commencement of this suit, its return of nulla Iona affords no legal presumption of their insolvency. 6. The declaration, not averring that plaintiffs had complied with their contract with Davis & Woods, but alleging that they had executed certain work desired, &c., which at reasonable prices amounted to $14,000, and for which judgment had been obtained and execution issued, but nothing realized whereby, &c., &c., but of all which there is no evidence, and the proof failing to sustain the averments in the second count, the verdict must be for the defendant. 7. There being no allegation of insolvency made in the narr., the jury must disregard and reject all proof on this point, and the verdict must be for the defendant. 8. If plaintiffs and Davis & Woods changed the work contracted for after the delivery of the order of July 13th, without the knowledge or consent of Thomas Woods, there can be no recovery in this case, and your verdict must be for the defendant. 9. Sherman & Co. having purchased 15,000 of the books covered by the guaranty, their so becoming possessed of Davis & Woods’ title, subject to their own lien, their lien has become merged and extinguished, and they cannot recover, on the guaranty given for the debt, the lien of which is so extinguished. In answer to the defendant’s 3d point the court charged: “ The omission of the plaintiffs to sell before the commencement of this suit the property of Davis & Woods in their possession, though technically an irregularity, is immaterial, inasmuch as the value of this property has been ascertained by the proper test of a sheriff’s sale; and the proceeds of this it is also the fight of the plaintiffs to appropriate to that portion of the debt of Davis & Woods not guarantied by the defendant; that is to say, the portion above $10,000. The fact that the copies of the books which were in the plaintiffs’ possession, and which had been printed for Davis & Woods, were not sold by the sheriff until after the commencement of this suit, constituted no defence to this action.” The court refused defendant’s 4th point and added: “ The plaintiffs must show that they have used all reasonable diligence to compel payment by Davis & Woods. If they have done so and failed, then they have a just claim against the defendant for what may be owing to them under the guarantied contract.” ín answer to the defendant’s 7th point, the court charged: “If the jury find indebtedness of Davis & Woods to plaintiffs, arising out of this transaction, to the amount of $10,000 or more, which they had been unable to recover from Davis & Woods, by due diligence, then the verdict should be for plaintiffs for $10,000, with interest from the commencement of this suit. That if they found that Davis & Woods are indebted to the plaintiffs to the amount of $10,000 for work done under the contract guarantied, and which the plaintiffs have been unable by due diligence to compel Davis & Woods to pay them, their verdict should be for the plaintiffs for that amount, with interest.” The court refused all the other points of the defendant; and further charged: * * * “ If no appropriation was made by Davis & Woods, the plaintiffs might appropriate the money paid by them to the first work which they had done; * * * The fact that the copies of the books which were in the plaintiffs’ possession, and which had been printed for Davis & Woods, were not sold by the sheriff until after the commencement of this suit, constituted no defence to this action. * * * The pursuit of Davis & Woods by the plaintiffs obtaining judgment against them and issuing execution, and the testimony of Mr. Sherman, if believed by the jury, constitute sufficient evidence of diligence on the part of the plaintiffs in their efforts to compel the payment of the debt by Davis & Woods. * * * It is no defence to this action, that Davis & Woods may have had other property if the plaintiffs did not know that fact. * * * If the jury find that Davis & Woods are indebted to the plaintiffs to the amount of $10,000 for work done under the contract guarantied, which the plaintiffs have been unable by due diligence to compel Davis & Woods to pay them, their verdict should be for the plaintiffs for that amount, with interest.. * * * “ The plaintiffs must show that they have used all reasonable diligence to compel payment by Davis & Woods. If they have done so and failed, then they have a just claim against the defendants for what may be owing to them under the guarantied contract. * * * [If where the payments were made by Davis & Woods, they were not appropriated either by Davis & Woods or the plaintiffs to any particular account, then the jury might appropriate them to the oldest indebtedness, and the guaranty applied, if the jury believed the evidence, only to the work which was done subsequent to the contract of guaranty.”] The verdict was for the plaintiffs for $10,296.66. The defendant took out a writ of error and assigned for error the admission of plaintiffs’ offers of evidence : the answer to the points and the part of the charge in brackets, which was the 12th assignment.
71 Pa. 106Norris's Appeal (1872)
71 Pa. 128Hawkins v. Weightman (1872)
Error to the District Court of Bhiladelphia: No. 44, to January Term 1872.. On the 21st of February 1871, William Weightman commenced an action of covenant on a ground-rent deed against John C. Hawkins and Peter A. Dickinson. The sheriff returned: “ £ Served,’ by leaving a true and attested copy of the within writ, at the dwelling-house of Peter A. Dickinson, one of the defendants, with an adult member of his family, on March 2d 1871, and £ Nihil habet,’ as- to John C. Hawkins, the other defendant.” Judgment was taken May 20th 1871, against Dickinson, for want -of an affidavit of defence. On the 4th of April 1871, an alias summons was issued: “ William Weightman v. John C. Hawkins, who was sued with Peter A. Dickinson, and as to whom the sheriff returned ‘Nihil habet” ” To this writ the sheriff returned “ ‘ Served,’ by posting a true and attested copy of the within writ, on the premises herein described, on April 20th 1871, and by advertising the same once a week for two weeks in the ‘ Evening Telegraph,’ a daily newspaper published in this city, agreeably to the Act of Assembly in such case made and provided, and an abstract in the ‘ Legal Intelligencer.’ And ‘ Nihil hahet ’ as to the defendant.” On the 20th of May 1871, judgment was taken “ for want of an appearance on two returns of ‘ Nihil habet,’ ” and damages assessed at $264.34. A fieri facias No. 361, and a venditioni exponas No. 682, to June Term, were issued on the above judgment, and the land sold to William Ernst. On the 15th of July 1871, the defendants obtained a rule to set aside judgment, inquisition on fieri facias and venditioni exponas, and to withhold deed in hands of prothonotary from record. September 18th 1871, the rule was discharged. The defendants took a writ of error. Their assignment of error was : The court below erred in entering judgment against John 0. Hawkins, for want of an appearance on the return made by the sheriff to the alias summons in covenant. The Act of April 8th 1840, sect. 1, Pamph. L. 249, 1 Br. Purd. 751, pi. 14, provides, that in actions of covenant on a ground-rent deed, if the sheriff shall return “ Nihil,"* the plaintiff may issue an alias summons, and if that be returned “ Nihil,” the two returns of “Nihil” shall be equivalent to actual service of the writ, as is the practice in cases of scire facias on judgments and mortgages, with the proviso that “ it shall be the duty of the said sheriff or other officer to give notice of the said alias writ, by serving a copy thereof on the tenant in possession of the premises, if any, or if there he no such tenant, by posting a copy of the same on some conspicuous part of the premises, at least ten days previous to the return-day thereof, and also by publication in one or more newspapers, in such manner and for such time as the court by rule or otherwise shall direct.” The Rulp 19 of the District Court says : “ Publication of the alias writs of summons, required by the Act of Assembly, &c., shall be made by the sheriff, in such daily newspaper as he may choose, once a week for two successive weeks prior to the return-day of such writ.”
71 Pa. 130Morgan v. Browne (1872)
Error to the District Court of Philadelphia: No. 9, to January Term 1872. This was an action of covenant on a lease, commenced July 19th 1870, by Gr. Blight Browne, against Joshua Morgan, Edwin L. Morgan and Arthur Orr, trading as Morgan, Orr & Co. The declaration was on a lease dated May 1st 1866, from the plaintiff to the defendants, for a lot and the buildings on it from May 1st 1866, for ten years, at an annual rent of $1500, payable quarterly, averring that the defendants have entered into possession of the premises under the lease and there was due of the rent on the 1st of May 1870, the sum of $1125. The defendants pleaded payment with leave, covenants performed absque hoe, and a special plea of eviction, with other pleas. They also filed an afiidavit of defence : That at the time of the leasing, there was a brick building on the end of the premises, which the plaintiff covenanted to take down and remove, after the lease of one Thomas Schofield had expired, to wit, on the 1st day of May 1867 ; that plaintiff had declined and neglected to remove it, thereby preventing defendants from having a passage over the ground upon which said building stands, and through their other property into Callowhill street; and without that passage-way, they would not have rented the premises of the plaintiff and made the improvements they did, and were required to do by the terms of the lease, their part of which they have fully complied with; that by the lease a passage-way of twenty-two feet was to remain open and for the use of these defendants, with the privilege of opening a gateway through a building fronting on Willow street, whereby the defendants would have had a continuous passage way from Callowhill street north to Willow street, which was one of the inducements moving them to the leasing of this property of the plaintiff, as they could along such passage-way have exit for their teams, machinery, &c., that the plaintiff did not put defendants into possession of the said twenty-two feet; that about July 1867, he rented the mill on the westward of this space to one Albert D. Cooke, who entered into possession of the said twenty-two feet, and proceeded under his lease with the plaintiff to erect upon the twenty-two feet wide passage-way a boiler-house, &c., thereby shutting up the passage-way and rendering it impossible for defendants to open a gateway into Willow street, or have free exit and ingress across the said twenty-two feet; and said lessee of plaintiff, with the knowledge of said plaintiff, and against the remonstrance made by defendants to plaintiff for the breach of his covenant with the defendants, placed upon it lumber, &c., said Cooke carrying on the business of a planing and box-making mill; that in 1869, when said defendants absolutely refused to pay any further rent until plaintiff complied with the covenants in said lease, and to deduct the amount of damages they suffered from the breach by plaintiff of the conditions of the lease, said plaintiff filed a bill in equity, in the Supreme Court of the state of Pennsylvania, against the said A. J). Cooke, in which said plaintiff admits the obstructing of the passage-way, endangering the buildings by fire, and increasing the cost of insurance thereof from risk by fire. That from plaintiff giving possession of this passage-way to said Cooke, allowing him to erect said boiler, &c., the property of defendants had suffered large loss by fire communicated to their buildings from the smoke-stack erected upon the said twenty-two feet passage-way by Cooke, with the knowledge of the plaintiff; that they were compelled to erect battlement walls to their buildings, to protect them from fire from that source, to purchase hose and have apparatus to put .out the fires, which disturbance and loss was occasioned by the plaintiff not giving to defendants the use of the said twenty-two feet, in accordance with the covenants of said lease; that said Browne, the plaintiff, had repeated notice from the defendants before the commencement of this suit, and before the withholding of the rent sued for, to put the defendants into possession of the premises, in accordance with the terms of said lease, which he refused and neglected to do. That the damage suffered by the defendants, from the aforesaid acts and omissions of the plaintiff, vrould amount to th'e sum of at least two thousand dollars, which they claimed to offset against the plaintiff’s demand. The defendants’ attorney gave notice of special matter, viz: “ To show the damage they have suffered for the neglect, refusal, failure and breach of covenants of said plaintiff in not keeping open the space of wenty-two feet wide east of the said stone building, to be and remain open as a passage-way, to be used by the said defendants in common with the said plailitiff and his other lessees, and for the damage resulting to the defendants by the blocking up of the same; also the damages from plaintiff not taking down the small “brick building on the rear of the demised premises, which damages they claim to amount to the sum of two thousand dollars. The facts which the evidence will be offered to prove, are more fully set out in the copy of the affidavit of defence hereto annexed, make part of this notice of special matter.” On the trial, April 17th 1871, before Stroud, J., the plaintiff gave in evidence the lease declared upon, which was for a lot with the building on it, situated on the south side of Willow street, between 12th and 13th streets, Philadelphia, beginning at the distance of twenty-two feet eastward from the east line of the stone mill occupied by Thomas Schofield, &c., the twenty-two feet east of the said stone building to be and remain open as a passage to be used by the lessees (the defendants), in common with the lessor, plaintiff and his other lessees; the defendants to have the use of the brick building over to the passage, and at their convenience open the passage through the lower story of the brick building; until so opened, the passage to be used as it then was ; the small building on the rear end of what is intended to be the passageway, and then used by Thomas Schofield, to remain in his possession until May 1st 1867, when his lease would expire and then to be taken down; possession of the brick building to be given May 1st 1866, when Schofield’s lease would expire, or as soon as plaintiff could obtain possession of it. Defendants to alter the building at their own expense to suit their business, plaintiff to pay $500 toward the expense, &c., the rent to be $1500 per annum, payable quarterly. The plaintiffs having rested, the defendants gave evidence by E. L. Morgan, that the small building had not been taken down according to the contract. Defendants had requested P. A. Browne, son of the plaintiff, to take it down; it was taken down by plaintiff, January 16th 1871; the twenty-two feet passage had never been left open for defendants’ use. The defendants gave in evidence the lease to Schofield, produced by plaintiff on call; it was dated February 27th 1866, for the “ stone mill occupied by him on Willow street, and also picker house in the rear thereof,” for a year from May 1st 1866; Schofield to deliver premises at the end of the term : with right of way on the west side of the mill. The defendants called plaintiff, who testified, that Schofield fixed up a place in the small building in the yard for a press-room; he had no right on the twenty-two feet space. The defendants read a léase from plaintiff to Albert D. Cooke, produced by plaintiff upon call. The lease was dated July 5th 1867, for the rent of the mill and picker house occupied by Schofield for five years, from November 1st 1867, with right of way on the west side of the mill and also on the east side, “ in common with and subject to lease of Gr. Blight Browne to Morgan & Orr,” with other privileges and restrictions. The defendants offered in evidence the deposition of A. D. Cooke: the plaintiff objected to the answer to the following question in the deposition, viz.: What were your rights under the lease? It was rejected by the court and a bill of exceptions sealed. In his deposition, Cooke testified that he had rented from plaintiff the stone mill, with premises attached; which had been occupied by Schofield. The premises leased by witness from plaintiff were a stone building on Willow street, picker house <£ one story brick building in the rear of the former buildinghe rented exactly what Schofield occupied. The defendant offered to prove “ the terms agreed upon by Peter A. Browne and A. D. Cooke, as to occupancy by Cooke of the twenty-two feet passage way on the east side' of the mill, rented by Cooke from plaintiff.” This was objected to by plaintiff, rejected by the court, and a bill of exceptions sealed. The defendants offered the record of proceedings in equity in the Supreme Court, by G~. B. Browne against A. D. Cooke, to January Term 1869. By the bill in that ease, Browne, amongst other things, sets out the lease to Cooke; the lease to defendants, specifying as in the lease, the privilege to defendants to use the twenty-two feet passage in common with Browne and his other lessees; and charged that Cooke had obstructed the twenty-two feet by shavings and other rubbish, without the consent of Browne or the defendants, endangered Browne’s other buildings; increasing the cost of insurance and that Browne’s mill, &e., and the mill of another of his tenants had been damaged by fire, communicated from the rubbish placed there by Cooke; the prayer of the bill was that Cooke might be restrained from piling and storing lumber, &c., in the passage-ways, &c. The defendants again called E. L. Morgan, and being asked by plaintiff what they proposed to prove, answered that they offered to prove the matters set out in the notice of special matter. The plaintiff objected “that the matters referred to as contained in the affidavits of defence were for the most part acts and things done by others, and not by plaintiff, and the court should require the defendants to state which of the matters and things contained they intended to prove by the witness, and that defendants should also offer to prove the plaintiff’s connection and participation in each of the matters and things offered to be proved.” The offer was rejected and a bill of exceptions sealed. The defendants closed. The plaintiffs offered in evidence a lease from defendants to Langenbach and others; the offer was objected to by the defendants, admitted by the court, and a bill of exceptions sealed. The lease was dated June 1st 1866, for the building “ situate on the south side of Willow street, &c., said building beginning on the east line of the stone mill now occupied by Thomas Scofield and extending eastwardly with a front of 65f- feet, and depth of 27 feet. This lease is for five years, from June 1st 1866,” &c. The plaintiff offered in evidence a letter from defendants to him dated November 16th 1869; the defendants objected to the offer, it was admitted and a bill of exceptions sealed. The letter appeared on its face to be in answer to one from plaintiff, demanding payment of rent. It stated that the reason the rent had not been paid was because Cooke, the other tenant of the plaintiffs, had used shavings for fuel; the building rented by defendants had been fired many times during the previous summer ; that for their own and the plaintiff’s protection the defendants had to purchase hose and other appliances to extinguish fire: that they had repaired the roof at a cost of $50; “ when this amount is deducted from the rent due you on the 1st inst., the balance will be paid. * * * We decline paying for this reason.” The court charged the jury : “ There is no evidence for defendants here for you to consider, the claim is for rent, and there is no evidence of damage to defendants, caused by the plaintiff, and you must find for the plaintiff.” The verdict was for the plaintiff for $1206.88. The defendants took out a writ of error, and assigned for error: 1. Rejecting the answer to the question in Cooke’s deposition. 2. Rejecting the offer to prove the terms agreed upon between P. A. Browne and Cooke, as to the occupancy of the twenty-two feet. 3. Rejecting the offer to prove the matters set out in notice of special matter. 4. Admitting the lease of Langenbach and others. 5. Admitting the letter of defendants to plaintiff in error, as to first and second assignments cited Hite v. Kier, 2 Wright 72.
71 Pa. 137Sproull's Appeal (1872)
100, to January Term 1872. This bill was filed January 5th 1871, by Ann Sproull against Alexander W. Sproull and James Simpson, executors, &c., of George Sproull deceased, John Bassing and James D. Lee.
71 Pa. 139Ashton v. Bayard (1872)
Error to the District Court of Philadelphia: No. 97, to January Term 1872. This was an action of assumpsit brought October 24th 1870, by Charles P. Bayard ^gainst Samuel K. Ashton, on the following instruments:— “ Due on demand, after sixty days, to C. P. Bayard or order, one hundred shares of Schuylkill Navigation preferred stock. Stephen Counter. ■ Philadelphia, October 25th 1864.” “ I hereby become the security of S. Coulter, for the fulfilment of the within obligation. S. K. Ashton. October 25th 1864.” On the trial, June 15th 1871, before Thayer, J., the plaintiff testified that Coulter wanted to borrow stock from him and he declined; Coulter said he would give defendant as security, and afterwards brought' to plaintiff the due-bill with the defendant’s agreement endorsed; plaintiff then lent him the stock; plaintiff had demanded the stock from Coulter and the defendant many times. He testified as to the value of the stock and the number of dividends paid on it since the loan. The court charged: That plaintiff could recover upon the instrument sued on, as an original undertaking, without proving diligence in an effort to pursue Coulter, and to recover the money from him. The verdict was for the plaintiff for $6031. The defendant, on the removal of the case to the Supreme Court, assigned the instruction of the court for error. cited Gilbert v. Henck, 6 Casey 205; Kramph v. Hatz, 2 P. F. Smith 525. This was an original undertaking by defendant: Marberger v. Pott, 4 Harris 9; Allen v. Hubert, 13 Wright 259; White v. Howland, 9 Mass. 314; Hunt v. Adams, 5 Id. 358; Reigart v. White, 2 P. F. Smith 438; Amsbaugh v. Gearhart, 1 Jones 482; Sherman v. Roberts, 1 Grant 261; Unangst v. Hibler, 2 Casey 150. The lapse of time without suing principal is no defence for surety: Richards v. Commonwealth, 4 Wright 146; Johnston v. Chapman, 3 Penna. R. 18.
71 Pa. 140City of Philadelphia v. Gilmartin (1872)
Error to the District Court of Philadelphia: No. 102, to January Term 1872. This was an action on the case, commenced November 10th 1869, by John Gilmartin against the City of Philadelphia. The cause of action was, that the defendant, by reason of the drawing off of the water of Schuylkill river, so reduced it that the plaintiff, the owner of a canal-boat navigating ,by means of the canal, &c., of the Schuylkill Navigation Company, could not proceed, and had been detained at Manayunk from the 9th of August till the 7th of* September 1869. The detention occurred during a season of most extraordinary drought. On the 9th of April 1807, Robert Kennedy was authorized by Act of Assemby of that date, “ to dig and support a mill-race ” at the Falls of Schuylkill, “ to lead the water necessary for a grist and saw-millhe to keep in repair a lock for the passage of boats, and prohibiting Kennedy from obstructing the navigation of the river Schuylkill. It was provided by the act that if the city of Philadelphia should thereafter erect machinery, and such erection should injure the works of Kennedy, the city should pay the reasonable expenses of Kennedy, with 20 per cent, on conveyance being made by him of the whole of his right; if Kennedy should exceed his authority or encroach on the rights of the public he should be liable to indictment. On the 31st of March 1810, Kennedy granted to Josiah White all the right he had acquired under this act. On the 8th of March 1815, the Schuylkill Navigation Company was incorporated. The act of incorporation (sect. 15, 6 Sm. L. 261) authorized the company to use the water-power from the river, canal, &c., to propel machinery, or sell or rent the waterpower, provided “ it be so done as not to impede or interrupt the navigation,” &e. On the 14th of August 1816, the Schuylkill Navigation Company granted to Josiah White, his heirs and assigns, the right to erect a dam at the Falls of Schuylkill, and all the rights of the company under their act of incorporation, with the proviso that the water should be used, &c., so that it should not impede or interrupt or injure the navigation of the river or canal. On the 1st of January 1817, White granted to Joseph Gillingham a portion of the water-power which he owned, and subsequently Gillingham and White conveyed their rights in the water, &c., to the city of Philadelphia. On the 3d of June 1819, the Schuylkill Navigation Company and the city of Philadelphia entered into an agreement, reciting amongst other things that, “ The mayor, &c., of Philadelphia, being desirous to increase the supply of water raised from the river Schuylkill- for the use of the said city, and for vending the same, if they see fit, to the adjoining districts, as well as for such other purposes as are hereinafter mentioned, by means of a new and enlarged power to be obtained by the erection of a dam to be built therein, near to their present waterworks : and, the said Navigation Company, fully sensible of the importance of such improvements, and willing to give effect to the same so far as may be done under their charter of incorporation, and having at the same time respect to the navigation of the said river, which by the erection of such works may be improved and extended, have agreed with the said mayor, aldermen, and citizens of Philadelphia to allow of such improvements under the conditions, stipulations, and agreements hereinafter mentioned.” And it was agreed, that in order to fulfil the intention and meaning of said parties, and also the Acts of Assembly before mentioned, the said parties have contracted and agreed mutually with each other with respect to the improvements to be made by the said mayor, &c., of' Philadelphia, at or near to Fairmount, Philadelphia county, as follows, to wit: “ They the said company, &c., grant to the said mayor, &c.j the right, and they the said mayor, &c., agree to erect a dam as hereinafter directed, across the said river near to Fairmount, at, &c., the said dam to be built conformably to the charter of incorporation of the said Navigation Company,” &c. “ It is hereby mutually understood, &c., that the said company, &c., shall and may at all times draw off from the said dam as much water as they may deem necessary for the purpose of the navigation, and that the said mayor, &c., shall and may enjoy all the remainder of the water of the said river for the purposes hereinafter mentioned: Provided, They do not at any time reduce the same or keep the same reduced below the level of the surface or top of the said dam, it being the design and meaning of the parties that the said mayor, &c., shall only have such use of the water as with the use thereof by the said company will not reduce it below the said surface or top of the dam, or keep it so reduced. And the said dam is to be kept up and in good and sufficient repair at all times and for ever by the said mayor, &c. * * * “ And the said parties hereby further covenant and agree, that the said mayor, aldermen, and citizens of Philadelphia, and their successors, shall not sell, lease, or dispose of any water-power of the said river Schuylkill, nor the said water-power for manufacturing purposes, except only for boring pipes, pumps, and such other matters and things as may be useful to and connected with the said public works of the said mayor, &c.” * * * Another agreement was entered into on the 20th of July 1820, between the Navigation Company and the city of Philadelphia, by which it was stipulated that the city might raise their dam at Fair-mount eighteen inches, &c. A third agreement was entered into on the 14th of June 1824, between the Navigation Company and the city; by which after reciting the various agreements previously made between them, and other matters, stipulated that the city should forever have, use, &c., “ the whole water and water-power of the river Schuylkill, at Fairmount, that shall remain after drawing off from the dam there erected so much as may be necessary for the purpose of the navigation of the said river, canal, and locks, without any restriction or other reservation whatever, and that it shall and may he lawful to and for the said mayor, &c., to lease, sell, or dispose of the said water-power, and to use the same, &c., for any and every purpose whatsoever, without any let or hindrance by the said company or by reason of any restriction contained in the articles of agreement hereinbefore recited, or either of them, &c. * * * It being nevertheless the true intent and meaning of the parties to these presents, that the said the mayor, &c., shall only have such use of the said water, as with the use thereof for the purpose of the navigation aforesaid, will not reduce it below the surface or top of the said dam, or keep it so reduced. * * * “ And it is further agreed by and between the parties to these presents, that they, the mayor, &c., shall and will have and take charge of the locks and canal aforesaid at Fairmount, and at all times hereafter for ever, cause the same to be well and faithfully attended, and kept in good order and repair, at the proper expense of the said mayor, &c. * * * That the said company shall and they do hereby retain the right of superintending the management of the said locks and canal, &c. * * * And that they shall be and are hereby authorized and empowered, at the expense of the said mayor, &c., to remove any obstructions, and make any repairs, which, according to the true intent of these presents, or the said recited agreements, the said mayor, aldermen, and citizens of Philadelphia are bound, and shall, after reasonable notice, neglect to remove and make. * * * And it is also further agreed, &e., that should it at any time happen that the water should be drawn off below the top or surface of the dam, it shall be lawful for the said president, managers, and company to fasten up the gates or openings used by the said mayor, &c., to draw off the water, and keep the same fastened until the water shall be raised as high as the top or surface of the dam.” * * * The cause was tried October 19th 1871, before Thayer, J. Gilmartin testified that he reached Manayunk with his canal-boat on the 9th of August and was detained until the 7th of September when he passed through the Fairmount locks, he had 184 tons of coal on his boat, which drew about five feet five inches. He testified also, and gave other evidence as to the amount of damage which had been sustained by the detention. John Frick, a toll collector of the Navigation Company, testified that the water was belowthe comb of Fairmount dam in August 1869; the persons in charge of the- city water-works declined to comply with his request to close the gates to the city water-works, saying they had been instructed by their superior officers not to do so ; afterward they were closed and,the water rose so as to enable some boats to pass; they were opened again August 11th, and afterward the city agents positively refused to close them; the water got down again, so that boats grounded and the navigation was stopped until August 16th; on that day several boats passed through; after that the water was drawn down, the city would not allow the company to pass any boats, and the navigation was stopped till September 7th, after which there was no difficulty in getting the boats through ; there were narrow strips put on the dam by the city, as had been done for several years; the stoppage was occasioned by drawing down the water at Fairmount dam; orders had been received from the company on the 14th of August not to lock boats through until further instructions; no boat could have got through until September 7th except a short time on August 16th. The company’s locks leaked some. There was evidence that the shallowest part of the navigation was opposite Penncoyd Works, that there is there an outside channel but a very difficult one. Frederick Graff, the chief engineer of the city water-works, testified that power to drive the works is derived from the Fair-mount pool, that it takes 13J gallons for power to pump 1 gallon with turbine wheels and 22 to 27 gallons with .breast-wheels. After several interviews and correspondence with company, he requested the company to close their gates, and they were closed in pursuance of an agreement between them and the witness in order to supply the city with water, using the wrater also for power; on the 7th of September steam-engines commenced working; during August the water on an average was about S,1® inches below the comb of the dam; there were no adequate means for power except the water; the deficiency of power had been the subject of his annual reports for fifteen years. The average use of water by the citizens during the drought was, less than usual; “ Everything was done to make the use of the water as economical as possible; the city was put on a minimum allowance of water at that time.” The company had stores of water in pools above Fairmount and below Reading, which were let down about September 7th and aided in the resumption of navigation; by thus drawing the water the navigation in these pools would be obstructed. The plaintiff then offered in evidence the following papers, &c., which were all admitted under objection and exception: Letter, August 7th 1869, from W. M. Tilghman, Esq., secretary of the company, to Mr. Graff, in which Mr. Tilghman, referring to the obstructions of the navigation by the action of the water department, informs Mr. Graff that to prevent their recurrence the company will urge upon the city authorities that they provide a steam-engine for forcing power, &c. * * * “We propose this course, in the first instance, rather than a resort to legal proceedings, because we are aware that every effort on your part has been made to comply with the agreement' between the city and this company, under which alone the former derives its right to use the water of Fairmount pool as a motive power, and that the repeated violations of that agreement, by drawing off the water below the level of the top dam, are frankly admitted and explained, without being attempted to be legally justified upon the ground that they were necessary in order to supply the city with water. The object of this note is simply to place upon record the above facts, and to express the hope that you will at the earliest moment call the attention of the watering committee to them.” * * * Letter August 11th 1869 from same to Mayor Fox, enclosing copy of the foregoing letter, and saying that the present mode of obtaining power, would supply the city but a short time, that the city was incurring heavy liability by obstructing the navigation, &c., admitting that the city might use the water without limit for distribution from the reservoirs; denying the right of the city to use the water for propelling power, and asserting that there would be enough water for the navigation and the wants of the city if the water were not so used; that such use of the water would be avoided by the use of steam-power which the city had not employed solely to save the cost, that the rights granted by the company to the city under their several agreements, were the same as those to which the company was restricted by the charter, viz., that after draining off the dam at Fairmount, there should remain what would be necessary for navigation and that the use of the water should not reduce it below the top of the dam; that the pool had frequently been drawn below the top of the dam, and urging that the city should provide means to avoid the difficulty. Letter August 14th, Mr. Graff to C. W. Wharton, assistant president of the company, asking that the upper pools be drawn and reply of same date, Mr. Wharton to Mr. Graff, informing him that he had authorized the drawing down of the upper pools, relying upon the city for indemnity against losses occasioned thereby, &c. A number of telegrams, all of August 14th, between the officers of the company, Mr. Graff and J. E. Smith, superintendent of company at Reading, in relation to drawing down the water from the upper pools. Other letters between the mayor, Mr. Graff, Mr. Tilghman, and other officers of the company, on the general subject of the use of the water by the city, &c. Message August 23d, the mayor to the councils, transmitting the correspondence with the officers of the company, referring to the use of the water by the city contrary to its agreement with the company, as resulting from its propelling power; urging provision for payment of losses occasioned by the stoppage of the navigation, &c. Report August 23d, Mr. Graff to councils, in relation to the general subject, and recommending modes for remedy in the future. Ordinance of councils August 23d, in accordance with report of a committee appropriating $25,000 to the water department “for the purpose of payment to the Schuylkill Navigation Company, Provided, That if the said Schuylkill Navigation Company shall hereafter establish any claim against the city, this amount shall be considered as an offset ‘pro tanto’ to said claim,” &c. Mr. Graff further testified that all his actions between August 14th and September 7th were with the assent of the company. A steam-tug was employed from September 7th to force the water, the amount of water saved by its use 27,000,000 gallons per day. There was evidence that drawing down the upper pools greatly injured the navigation; that the draft boats had been increased from about 3§- feet to 5 and 5J feet; there was no channel from Manayunk to Eairmount except that pursued by the boats. The plaintiff, under objection and exception, gave evidence by J. H. Hutchinson, a director of the company, that on the 11th of August, the mayor informed a committee of the company that if the company should attempt to close the head gates of the dam, he would resist such action by the whole police force of the city. All then agreed that the attempt would be useless, and that no right would be waived by abstaining from it. The defendants gave evidence that the outside channel at Penncoyd could be and had been used when the other channel was too low; also evidence that there was large leakage at company’s locks at Eairmount. 'The documentary evidence will be found in detail in City v. Collins, 18 P. F. Smith 106. The plaintiff submitted four points, the last of which was: If the jury believe that a depth of water, sufficient for the navigation of loaded boats of the usual draught, had been provided in Eairmount pool by means of the temporary strip placed upon the dam by the Navigation Company, the depth of water so obtained was lawful, and the defendants had no right to diminish it by taking the water for water-power, if by so doing they impeded or interrupted the navigation of such boats. The defendant’s points were : 1. For the purposes of this case, the right of the City of Philadelphia to the water and water-power of the Schuylkill vested in it by the Act of 1807, and the deed of Josiah White, and the only restrictions of this act are, that the dam and race shall not obstruct the navigation at the lower fall, and that the channel then used at that place should be left open for boats to pass as they did prior to that date. 2. If the jury believe from the evidence that the boat of the plaintiff was detained above the lower falls, and that no works of the city were at that place, and that the channel used before 1807 was left open for boats to pass as they did before that time, then the city is not responsible for the detention, and the plaintiff cannotn-ecover. 3. If the jury find from the evidence that the boat was detained below the lower falls, and there was between that point and the dam sufficient water in the river to float the boat and to lock it through the canal, then the city took no more water than they were authorized to do under the Act of 1807, and the plaintiff cannot recover. 4. The limitation or restriction in the Act of 1807 applies only to boats of such draught as navigated the river before that time. 5. If the jury find from the evidence that, whilst the capacity of the locks and. the draught of the boats have been increased, the Navigation Company has not made a proportionate increase in the depth of the canal channel in the upper portion of Fairmount pool, the Navigation Company alone is responsible for any detention caused by such want of depth, and plaintiff cannot recover. 6. If the jury find from the evidence that anywhere in the river there was a channel of sufficient depth to float boats from Manayunk locks to the Fairmount dam, the plaintiff cannot recover. 7. If the jury believe from the evidence that through the negligence of the Navigation Company there was sufficient water wasted at the Fairmount locks to have kept the water in the dam at a sufficient height to have floated the plaintiff’s boat, the Navigation Company alone is liable, and the plaintiff cannot recover in this action. 8. If the jury find from the evidence that the water wasted, together with the water stored in reservoirs and contained in dams beyond the demands of navigation, would have kept up the navigation, the Navigation Company alone is liable, and plaintiff cannot recover in this action. 9. The right of the city to draw water from the pool at Eairmount is superior to that of all other persons, except only such water as is necessary for the sole purpose of lockage, and if the jury find from the evidence that water was drawn from the dam by the Navigation Company to a greater extent than was necessary for lockage, and to a sufficient extent to impede navigation, the plaintiff cannot recover in this action. 10. The City of Philadelphia, the defendants in this suit, are not liable for any action of the chief engineer of the water department beyond the scope of his authority, and any interference by him with the outlet locks of the Navigation Company at Eairmount was outside of and beyond such authority, and is not binding upon the city. 11. If the jury believe from the evidence that the chief engineer of the water department assumed control of the locks, and did it at the suggestion of and in pursuance of authority given by the Schuylkill 'Navigation Company, then to that extent he was the agent of the company, and the company alone is responsibl^for any injury caused by the exercise of such authority or conduct of such agent, and the plaintiff cannot recover in this suit for any injury so caused. 12. If the jury believe from the evidence that the stoppage of the plaintiff’s boat was occasioned by the act of the Schuylkill Navigation Company, in closing and keeping closed their locks in the manner described by the plaintiff’s witnesses, during the time his boat was lying in the canal at Manayunk, then their verdict should be for' the defendants. 13. If the jury believe from the evidence that the use by the city of the water of the river, in the way it was used by them, during the time the plaintiff’s boat remained in the canal at Manayunk, would not have prevented the passage of his boat through the Eairmount pool and the outlet locks into the tideway, if the Navigation Company had done everything they were bound to do in the proper maintenance of their locks and in other respects, the plaintiff cannot recover in this suit. 14. If the jury find from the evidence that the stoppage of the plaintiff’s boat was occasioned directly by the act of the Schuylkill Navigation Company, then the verdict should be for the defendants. 15. If the jury find from the evidence that the plaintiff contributed, by act or neglect, to the injury of which he complains, the verdict should be for the defendants. 16. Although the city had no right to reduce the water below the comb of the dam, yet, if the jury find from the evidence that the plaintiff’s boat could not have navigated Eairmount pool, without a breast of water flowing over the dam, then the act of the city did not damage the plaintiff, and the verdict should be for the defendants. 17. If the jury find that the period of the detention of the plaintiff’s boat was one of extraordinary drought along the line of the Schuylkill river, and that the city of Philadelphia used no more water than was reasonably needed for the supply of its inhabitants, including the amount requisite for power, the verdict should be for the defendants. 18. If the period of the detention of the plaintiff’s boat was of extraordinary drought, and the low stage of the water and consequent detention of said boat was caused by such drought, and not by any., unusual use of the w'ater of the river by the city of Philadelphia to supply the actual necessities of the citizens, then the plaintiff is not entitled to recover. The court charged at great length : the following extracts, with the opinion of the Supreme Court., will sufficiently elucidate the matters decided. * * * “ The plaintiff says that his detention was the immediate result of the unlawful act of the city in drawing from Fairmount dam so large a portion of the water of the river for the purpose of propelling the wheels of their water-works at Fairmount that the navigation was thereby impeded and interrupted; that the volume of water withdrawn reduced the stream to such an extent that the plaintiff was unable to pass with his boat from the Manayunk pool to the outlet locks at Fairmount. The plaintiff does not deny the right of the city to use the water of the Schuylkill river to any extent which may be necessary for drinking and domestic purposes, but he denies its right to use the water as a power or propelling force to an extent which shall impede or interrupt the artificial navigation constructed by the Schuylkill Navigation Company, under the authority of the state. He says that to do that is an unlawful act, an invasion of the right which every citizen of the Commonwealth has to the free and uninterrupted use of the navigation, and that it has caused the loss of which he complains. “ The defendants resist the plaintiff’s suit upon several grounds. “ 1. They say that their act did not cause the plaintiff’s detention. “ 2. That the detention was caused by the misconduct or negligence of the Navigation Company. “ 3. That the plaintiff’s loss was caused in .part, if not altogether, by his own negligence and want of ordinary skill and foresight. “ 4. That the low stage of the water and the plaintiff’s detention were caused by an extraordinary and unusual drought, and not by any unlawful act committed by them. “ 5. They allege that they have a right to use the water of the river, not only for drinking and domestic purposes, but for power, which is paramount and superior to any right of the plaintiff to the navigation. * * * “ Now, in the first place, it is necessary to determine what was the nature of the grant which the city had for the use of the waterpower. “ The state, which was the depositary of all the franchises which belonged to the people, authorized the enterprise which was carried into effect by the Schuylkill Navigation Company — that is, the construction of the slack-water navigation. The object of that improvement was the benefit of the public, and of all the citizens of the Commonwealth who chose to avail themselves of the advantages which the navigation would present. The state, therefore, in granting the water-power, with the right to alienate it, had the right to couple the grant with any conditions which she might think proper, and she did couple the grant with the condition that the water-power should not be used in such a manner as to obstruct 'or impede the navigation which was contemplated by the Act of Assembly. “ The Navigation Company had no authority to grant any other use of the water-power than that which they were authorized by the Act of Assembly to grant. “ The power which they had was not a power to grant the waterpower to any extent, but ‘provided, it did not impede or interrupt the navigation of the river’ — that is, the navigation by the slack-water navigation, which it was contemplated to make. The navigation company could not transfer, under its grant, to any person, a right to the water-power, which would be free from the condition which the state had annexed to the grant. * * * “ This, therefore, was the limit of the right of the city. The city, under any circumstances, had no right, by using the waterpower at Eairmount for the propulsion of their wheels, to reduce the water below the comb of the dam. Whether they had the right to reduce it to the surface of the dam is a question which depends upon a question of fact; and that is, whether by reducing it to the surface of the dam the navigation was impeded. If it impeded the navigation, then the city had no right to reduce the volume of water even to the surface of the dam; but so long as it did not impede the navigation, they might reduce it even with the surface of the dam, but no further. “ It is claimed, however, by the defendants, that notwithstanding this restraint upon the authority of the navigation company to transfer the use of the water-power, the city, by the Act of April 9th 1807, making the grant to Kennedy, had acquired a prior right which was paramount and superior to any right of the Navigation Company, or any other persons. * * * The grant to Kennedy is guarded in precisely the same way by the legislature as the grant to the Navigation Company, viz., by an express proviso that the said Kennedy, his heirs and assigns, shall not obstruct the navigation of the said river. * * * “ Now, if Robert Kennedy could not use the water-power to the prejudice of the public, that is, in such manner as to impair the right of the public to the unobstructed navigation of the Schuylkill river, I need not tell you that any one claiming title under him, can have no right to do that thing; because the right acquired by the city from Kennedy could be no greater than the right which Kennedy himself possessed. * * But it is also argued that the other proviso contained in the grant to Kennedy, vested in the city an absolute right to the water-power, and a right which, being anterior to, was superior to the grant subsequently made to the Navigation Company. * * * The construction of this act, which is contended for by the defendants is, in my judgment, totally inconsistent with the act itself. It would be absurd to suppose that the state has given power to the city to destroy the navigation of the Schuylkill river by an act which expressly prohibits the obstruction of the navigation of that river. What then was meant by this proviso in the Act of 1807, relative to the future construction of water-works by the city ? * * * The legislature reserved the right to repeal Kennedy’s grant if they thought proper so to do, and provided that in that event he should be compensated for his losses in a certain designated manner. That is the whole scope and intent of the language used. It is not a present grant to the city, but a present grant to Kennedy, with the reservation of a right to repeal it in favor of the city if they should see proper so to do. It is inconsistent with all the other legislation of the state upon the same subject, and inconsistent with the whole subsequent conduct of the Navigation Company and the city herself. * * * “ Therefore it is my duty to say to you that neither under any Act of Assembly which has been shown, nor under any agreement which has been put in evidence before you, had the city the right to use the water of the Schuylkill river as a power or propelling force in a manner or to an extent which would impede or interrupt the navigation of that river. As between herself and the Navigation Company, the city had the right to use the water for power to an extent which would reduce the volume of the stream to the surface of the dam and no lower. If she exceeded that limit, she trespassed upon the rights of the Navigation Company. Whether as against a person lawfully navigating the stream she might reduce it to the surface of the dam, depends upon the fact whether by so doing she impeded or interrupted the navigation. She could not make any use of the water which would produce that result. “ Therefore you are to inquire, in the first place, whether the use which the city made of the water-power, was the cause of the plaintiff’s detention. That is a question of fact for you and for you alone. * * * “ I feel it to be my duty to say to you that the existence of the extraordinary drought would in no respect alter the rights of the parties, neither does the argument of necessity relieve the city from responsibility if she is otherwise responsible. A solemn contract and agreement is binding upon the parties at all seasons, in dry seasons and wet seasons alike, and under all circumstances, and a party cannot justify himself for violating the agreement by any severity or stress of weather or surrounding circumstances. Now, if there was a necessity for the city to have water, as undoubtedly there was, for the use of the citizens, obviously they might have had it by using some other power than the water itself. * * * “ So far then as the legal aspects of the case are concerned, I sum them up in the following propositions :— “1. The city has no right, either under the grant to Robert Kennedy, by the Act of 9th of April 1807, or under the agreement with the Navigation Company of June 3d 1819, to use the water-power of the Schuylkill river to an extent which will impede or interrupt the navigation. If the city has done that, and if the plaintiff’s detention was caused by it, and if his detention was not due in any degree to his own negligence, then your verdict should be for the plaintiff. “ 2. If you can find that the plaintiff’s detention was due to the misconduct or negligence of the Navigation Company alone, and not to any act of the city, then your verdict should be for the defendants. But you are not to find that except upon sufficient evidence. “ 3. If you find that the plaintiff’s detention was due to the combined unlawful acts of the city and the Navigation Company, then your verdict should be for the plaintiff. “4. If you find that the plaintiff’s detention was due to his own negligence, either in whole or in part, then your verdict must be for the defendants. * * * “ I decline to give any further instructions upon the first nine points presented by the defendants’ counsel than those which I have already given in my general charge. “ In answer to the defendants’ tenth point, I instruct you that the action against the city is for an unlawful diversion of the water, and not for shutting down the gates of the locks or for interfering with the locks. If the plaintiff’s detention was not owing to an unlawful use of the water-power by the city, then the city is not responsible and the verdict must be for the defendants. “ I make the same answer to the defendants’ eleventh point. “ In answer to the defendants’ twelfth point, I instruct you that if the plaintiff’s detention was caused by the act of the Schuylkill Navigation Company in closing and keeping closed their locks, and not by the unlawful use of the water-power by the city, then your verdict must be for the defendants. “ In answer to the defendants’ thirteenth point, I decline to give any further instruction upon the subject of negligence on the part of the Navigation Company than that which I have already given in my general charge. “ In answer to defendants’ fourteenth point, I instruct you, if the stoppage of the plaintiff’s boat was occasioned by the act of the Schuylkill Navigation Company, and not by the act of the city, the defendants are not responsible. “ If the Navigation Company closed the locks when there was water enough in the pool for the plaintiff’s boat to pass, and if such closing was the cause of detention, and not the low stage of the water in the pool, then the defendants are not responsible to the plaintiff for the detention. “ I feel bound, however, in fairness to say, in connection with that, that it appears to me that one of two things must be admitted, viz'., either that the Navigation Company closed these gates because the water was too low to allow of the passage of boats, or else they closed them in order to facilitate the operations of the city in filling their reservoirs. “Now, in either case, the city would not be relieved from responsibility. If they closed the gates because there was not sufficient water, why then if the lack of water was unlawfully produced by the defendants, the defendants are responsible. If they closed the gates in order to enable the chief engineer of the Fairmount water-works to avail himself of the water for the purpose of filling the reservoirs; for the purpose of driving his vrheels at Fairmount in order to pump the water into the reservoirs, and in that way to protect the city of Philadelphia and its people from disaster and suffering, then, although that would be an act of co-operation on the part of the company with the city in the detention of the plaintiff, yet the fact of such' co-operation would not relieve the city from liability if the cause of the plaintiff’s detention was the taking of the water unlawfully by the defendant. It is no defence to an action for damages for a wrong, that other people contributed to the wrong, and aided in the perpetration of it. That is never either a defence or excuse at law for the commission of a wrong. “ I affirm the fifteenth point made by the defendants without qualification. If you find that th.e plaintiff contributed, by his act or neglect, to the injury of which he complains, then your verdict must be for the defendants. “By the defendants’ sixteenth point I am requested to charge you that, £ although the city had no right to reduce the water below the comb of the dam, yet, if the jury find from the evidence that plaintiff’s boat could not have navigated Fairmount pool without a breast of water flowing over the dam, then the act of the city did not damage the plaintiff, and the verdict should be for the defendants.’ “ In answer to that I say that I must decline to instruct you as requested in this point; for I say to you, whether the city was justified in drawing off the water to the extent of reducing it to the level of the surface of the dam depends upon this, viz., whether such a use of it impeded or interrupted the navigation. “By the 15th section of the charter the company could not sell or grant any water-power which would have the effect of impeding or interrupting the navigation. “ I leave it as a question of fact for you to determine whether reducing the water to the level of the surface of the dam impeded or obstructed the navigation. “As to the defendants’ seventeenth and eighteenth points, I must decline to instruct you as requested by the defendants. They relate to that part of the defence which is founded upon an alleged extraordinary character of the season. I consider that any unexpected event of that kind cannot either increase or diminish the rights which are secured by law. The law is made for all seasons, and it is to be supreme in all seasons, and the right which the city had not in a wet season she cannot have in a dry season. “ I affirm the plaintiff’s fourth point.” The verdict was for the plaintiff for $327.23. The defendants took out a writ of error and assigned 12 errors : 1-7. The admission of the testimony objected to. 8. Affirming the plaintiff’s 4th point. 9-11. The answers to the defendants’ 14th, 16th, 17th and 18th points. _ ■ 12. The answer as contained in the general charge, to the dedants’ first nine points.
71 Pa. 161Thompson v. Stevens (1872)
This was an action of assumpsit, brought April 29th 1870, by Rebecca M. Stevens against John P. Thompson, surviving executor of Abraham Shalkop, deceased. The declaration was in the common counts. The bill of particulars was as follows: Plaintiff’s claim is for services rendered to Abram Shalkop as housekeeper, nurse, and confidential business agent, for ten years prior to his death, at one thousand dollars per year, $10,000.
71 Pa. 170Ulshafer v. Stewart (1872)
1. If a plaintiff in error die after issuing the writ, and before assignment of errors, the writ will not abate, but his representatives may be substituted. 2. A writ of error is an action: a release of all actions will bar it. 3. Acts of April 13th 1807, and February 24th 1834, sect. 26, applied. 4. Judgment was entered, but the amount not liquidated: an execution was issued, and an amount endorsed on the writ: this presumed to be the amount for which the judgment was recovered. 5. In 1798 judgment was recovered which was a lien on land in North! umberland county ; successive fi. fas. and venditionis were issued; in 1808 by Act of Assembly, part of Northumberland, including this land, was annexed to Luzerne, the powers of the officers of Northumberland to cease, “ except in the determination of suits now pending in said courts, so far as relates to that part annexed.” A pluries venditioni was issued to Northumberland in 1814, under which the land was sold by the sheriff of that county : Held that the title passed to the purchaser. 6. The proceeding was one ‘‘pending in the court” of Northumberland, and the sheriff of that county was the proper officer to carry it into execution.
71 Pa. 175Lower Makefield Road (1872)
Certiorari to the Court of Quarter Sessions of Bucks county: No. 78, to January Term 1872. ^ In the matter of a public road in Lower Makefield township. On the 15th of June 1869, the petition of citizens of Lower Makefield township was presented to the court, setting forth that part of a road known as the “Lower River Road,” beginning at the intersection of that road with Bridge street, and ending in the same road at John Doyle’s gate, by reason of the washing away of the road by high waters in the river Delaware, &c., had become useless, &e., “ and would better accommodate the public by being changed so as to begin and end at the same points, but by being further removed from the said river in many places along the same.” They prayed for viewers “ to vacate and relay the same or such parts thereof as in their judgment may be found necessary.” . Viewers were appointed accordingly: by the order they were directed, amongst other things, to return with their report, “a plot or draft thereof, with the courses and distances,” &c. The viewers reported that parts of the road had become useless, &c., “ and ought therefore to be vacated, and we do vacate the same in the manner set forth in the plot and draft hereunto annexed, which we make part of this our report.” This report was confirmed nisi September 16th 1869. The supervisors of the township on the 4th of November filed exceptions to the report. On the same day citizens of the township, petitioned, setting out the former proceedings, and praying for reviewers “ to review the said road as well that vacated as the one laid out,” &c. On the 17th of January 1870, the exceptions to the report of the viewers were dismissed, and the report confirmed: on the 9th of February reviewers were appointed. j They reported that there was no necessity for the road reported by the viewers; and as to the portions of the river road vacated by the viewers, they reported: “We do vacate the same in the manner set forth in the plot or draft hereunto annexed, which we adopt and make part of this our report.” This report was confirmed nisi, May 7th 1870. On the 19th of September 1870, a petition for a re-review was filed, setting forth all the previous proceedings, and stating that to the report of the viewers and reviewers a plot or draft was annexed, which they had adopted and made part of the reports respectively. Re-reviewers were appointed September 22d. The order, amongst other things, directed them to return with their report “ a plot or draft thereof, and the courses and distances,” &c. The re-reviewers made report, laying out a road, and stating particularly all the courses and distances, which were numerous, from the beginning to the ending, “ hereby first vacating all of the said river road lying between the said two points, viz., from the middle of the said Bridge street, and the said river road, where the road now being laid commences, to the terminus of said road now being laid out opposite the said John Doyle’s gate,” &c. They returned no plot or draft. The road was confirmed nisi, December 17th 1870, and five exceptions were filed to the report, March 13th 1871. There was no exception that a plot or draft did not accompany the report. On the 14th of November 1871, the court (Chapman, P. J.) dismissed all the exceptions; adding: “ But there is one defect which appears on the face of the proceedings we ought not to disregard. It is the omission to return a plot or draft of the road vacated. This is a material omission, and therefore the report is set aside.” James W. Paff, one of the persons through whose land the road was laid, removed the record to the Supreme Court by certiorari. for certiorari, referred to Act of June 13th 1836, sect. 3, Pamph. L. 555; 2 Br. Purd. 1272, pl. 3; Hess’s Mill Road, 9 Harris 217; Southampton Road, Id. 356; Road in Abington, 14 S. & R. 31; Road in Jackson, 9 Barr 85. referred to same act and section, and also sect. 18, 2 Br. Purd. 1276, pl. 26; Rutherford’s Road, 10 S. & R. 120; Act relating to road in Bucks county, April 23d 1857, sect. 5, Pamph. L. 298.
71 Pa. 177Leidy v. Messinger (1872)
Error to the Court of Common Pleas of Bucks county: No. 63, to July Term 1871. On the 26th of March 1870, Charles Messinger brought an action of assumpsit against Zachariah Leidy, to recover one-half of the sum of $500, which the plaintiff had paid on account of a share of oil stock alleged by him to have been bought jointly with the defendant. The plaintiff testified that he and the defendant had jointly purchased one share of the stock of the Fayette Oil and Mining Company, of which the price was $1000, and that he had paid $500; that the defendant paid nothing at the time, but had given his note to the company for $500; the note was endorsed by the plaintiff, who took from the treasurer of the company the following receipt:— “ Rec’cL, May 20th 1865, of Z. Leidy and C. Messinger (by C. Messinger), Five Hundred Dollars on account of one share in the Fayette Oil and Mining Comp. Mo: Loeb, $500. Treasurer of said Company.” The evidence was undisputed that the plaintiff and defendant were partners in the stock. The company was an unincorporated company. The note was passed to Robert Alsop by the company on part payment of the land of the company in West Yirginia, and was at the time of the trial in the hands of an attorney for collection against Leidy. The plaintiff gave evidence that “ the company collapsed, became defunct, insolvent.” The following is a copy of the note:— “ $500. “ Doylestown, Pa., April 22d 1865. “ Four months after date, I promise to pay to the order of Charles Messinger, at the Doylestown National Bank, Five Hundred Dollars, without defalcation, value received. (Endorsed,) Z. Leidy. Charles Messinger, Mo: Loeb.” The defendant submitted a number of points, not necessary to set but — which the court denied, and Chapman, P. J., charged :— * * * “It is contended by the defendant that he is not liable to contribute in making up the loss which the plaintiff has sustained by his advancement of the $500. We decline so to charge you, because if you find they jointly engaged in the purchase of a share of stock, they would be' equally bound to the company for the whole price, and consequently, as between themselves, • liable to contribute to one another. In a common undertaking between two persons, if the enterprise fails, the whole burden of the loss cannot be thrown on one. It is urged that defendant purchased but half a share of stock, and is only responsible to the company for half the price. But the receipt recognises them both as purchasers of the whole share, and in order to treat the share as divisible, it is necessary there should be some evidence that there was an arrangement between the parties to that effect. As the matter stands, both parties are still responsible to the company, if the company has not forfeited its right to resort to either. “ It is further contended, that if plaintiff and defendant are partners, the plaintiff has mistaken his form of action, which should have been account render. We charge you, as this was a single transaction between themselves, and as such involving no complication of accounts, the form of action adopted was a proper remedy. And we further charge you, if you believe the evidence, the plaintiff is entitled to your verdict.” The verdict was for the plaintiff for $389.25. The defendant took out a writ of error, and assigned the denial of his point and the charge of the court for error. cited Knerr v. Hoffman, 15 P. F. Smith 126; Finlay v. Stewart, 6 Id. 183; Ferguson v. Wright, 11 Id. 258. The suit was instituted to recover upon an implied, if not direct, promise, growing out of a case of a single partnership transaction, or joint adventure. Under such circumstances assumpsit was the proper form of action: Wright v. Cumpsty, 5 Wright 102; Meason v. Kaine, 13 P. F. Smith, 338; Finlay v. Stewart, 6 Id. 183; Brubaker v. Robinson, 3 Penna. Rep. 295; McFadden v. Erwin, 2 Whart. 37.
71 Pa. 180Wolf Creek Diamond Coal Co. v. Schultz (1872)
Error to the Court of Common Pleas of Schuylkill county: No. 461, to January Term 1871. This was an action of assumpsit brought February 28th 1868, by John Schultz and Thomas Patten, Jr., trading as John Schultz & Co., against The Wolf Creek Diamond Coal Company; the defendants were an incorported company. The declaration was for an indebtedness of $12,000 on the common counts. There was also a special count, setting out in ipsissimis verbis, as a parol contract, an agreement dated January 9th 1867, between the defendants of the first part and the plaintiffs of the second part, by which the plaintiffs stipulated to deliver to the defendants at a place designated, “ all kinds and sizes of sound timber” required about the Wolf Creek collieries for all “mining purposes and repairs inside and outside,” from January 1st 1867 to January 1st 1868; in consideration of which the defendants agreed to pay the plaintiffs eighteen cents per ton for all the coal mined from the Wolf Greek Colliery, &c. Should the tonnage in 1867 not amount to 76,000 tons, the defendants to pay the difference between the amount shipped and 75,000 tons at eighteen cents per ton; the plaintiffs, during the continuance of the agreement, to keep a sufficient supply of such timber as the defendants should require; the timber to be furnished at rates particularly specified in the agreement and always to keep a supply of timber on hand at the colliery, “at least $2000 worth.” The plaintiffs averred that they had faithfully performed their covenants, but the defendants did not perform their part of the agreement, viz: they “ did not pay the plaintiffs eighteen cents per ton on 45,000 tons of coal, the difference between the number of tons actually shipped and 75,000 tons,” and had not paid the plaintiffs for the timber furnished, &c., “ as by the terms of its agreement it had undertaken and promised to do.” On the trial, March 25th 1870, before Ryon, P. J., the plaintiffs gave in evidence the contract declared on, it was executed thus : “In witness whereof the parties have hereunto set their hands and seals; this * * * “ Wolf Creek Diamond Coal Co. Per J. K. Siegfried, Supt. seal. John Schultz. seal/ Thomas Patten, Jr. SEAL.' all the seals being scroll seals. Siegfried-testified that the plaintiffs furnished timber during the year as agreed on by their contract, at one time they were a little short of $2000 worth of timber on hand ; there was sufficient for all the company’s requirements except for one day; the collieries were never suspended for want of timber. The president of the defendants knew all about the contract with plaintiffs and approved it. There had been a “crush” in July in one of the veins and work was suspended for the remainder of the year; the plaintiffs after the “crush” furnished timber to the plaintiffs as they required. Witness tried to get the plaintiffs to cancel the contract, “ after consultation they replied that they would carry out the contract.” On cross-examination the witness, in answer to a question of defendants, said, that he told defendants “ not to bring any more timber after July, and tried to get them to cancel the contract.” The plaintiffs proposed to ask witness to state “ all the conversation which passed between them at the time.” This was objected to by the defendants admitted by the court and a bill of exceptions sealed. Schultz, one of plaintiffs, testified that they had a stock of teams and ivagons on hand for carrying on the business, and at the beginning of 1867, had $3500 worth of timber at the colliery; they kept the defendants supplied all the time; after the “ crush,” Siegfried the superintendent told them they need not haul timber for a day or two and in a day or two told them to haul again. The defendants gave evidence that the amount of coal actually mined during the continuance of the contract was 29,931 tons; that estimating that amount of coal only, there was still due to the plaintiffs on the 1st of January 1868 a balance of $2135.91; there was also on the bank of the colliery at that date $3117.03 worth of timber; the defendants accounted to plaintiffs for the amount of tonnage actually shipped. • Also, that sometimes there was not timber of the kind they wanted, and the hands had to stop; they did not mine any coal after their stoppage in June 1867. The defendants proposed to ask William Beddow one of their superintendants, “ whether if the defendants had continued mining during the year 1867, they would or not have used up more timber than remained on the bank or at the colliery in December of that year.” Also to prove by same witness, “ that prior to the stoppage of mining by the defendants in June 1867, the quantity of timber consumed was not greater in any one month or for any given period, than would have been required for a like time or period after that time, had the defendants continued to mine for the balance of the year.” Both offers were rejected by the court and several bills of exception sealed. After the evidence had closed, defendants’ counsel had closed his argument and plaintiffs’ counsel had progressed in his argument, the plaintiffs offered to prove by Mr. Siegfried, that the defendants had a corporate seal, that the contract was not executed under the corporate seal, but the individual seal of witness who was their general agent. The offer was admitted by the court and a bill of exceptions sealed. The witness testified that the company had á corporate seal, that he did not intend the scroll seal as their seal, it was put there by him at their request; “ I intended simply to make a contract, that would be binding on both Schultz and the company by me as their agent. This scroll was put on simply as my own act, I knew this was not the official act of the company.” The plaintiffs asked the court to charge: That if the plaintiffs in good faith entered immediately after making the contract upon its performance, and during the yóar supplied the timber required according to the terms of the agreement, they are entitled to a verdict for the difference between 29,930 19-20 tons of coal actually shipped, and 75,000 tons of coal, at the rate of 18 cents per ton, with interest upon such sum from January 15th 1868. The defendants requested the court to charge:— 1. That the plaintiffs’ claim for damages in this suit is merely what they would have made under their contract, had the defendants continued to mine during the year 1867. 2. That plaintiffs have not shown they could have made any profit out of their contract, had the defendants continued to mine during the year 1867, and consequently can recover nothing in this suit. 3. That the plaintiffs have offered no evidence of any contract made with defendant, and seek to recover in no other except the agreement of January 19th 1867, in evidence. That such agreement is covenant under seal sealed by the defendants, and that as this suit is an action on the case, there can be no recovery in this suit. 4. The demand of the plaintiffs is according to the narr. filed for non-performance of a simple contract obligation in writing of the defendants, and none other, that the plaintiffs have given no evidence of any such contract, and consequently cannot recover. 5. That under the whole evidence the verdict of the jury must be for the defendants. The court charged:— [“ If the plaintiffs have substantially and bonfi fide complied with their contract, they are entitled to recover. If there are any small deficiencies, they can be compensated for in damages, which should be deducted from the amount due upon the contract.”] “ The plaintiffs have supplied the Wolf Creek Diamond Collieries inside and outside for the year 1867 with timber under the contract in evidence. [The defendants agreed to pay for the timber 18 cents per ton on seventy-five thousand tons, whether that amount was shipped or not. This amount the defendants are entitled to recover for, allowing any losses from want of timber to one or two sets of mines, as testified on the part of the defence. This is a sufficient answer to the points.”] The verdict was for the plaintiffs for $11,000. The defendants removed the record to the- Supreme Court by writ of error. They assigned for error:— 1. That the court allowed Siegfried to state additional conversation between him and plaintiffs at the time he asked them to cancel the contract. 2. That the same witness was permitted to testify that the defendants had a corporate seal, but that the contract was executed by his individual seal. 8, 4. The refusal to admit the testimony of Beddow. 5. Denying plaintiffs’ point. 6, 10. Not affirming defendants’ points. 11,12. The parts of the charge in brackets. 18. Not submitting to the jury whether the seal to defendants’ name on the agreement was the defendants’ seal, and whether they had adopted it. As to the 2d specification, parol evidence is inadmissible for the purpose of altering the legal operation of an instrument by evidence of an intention to an effect which is not expressed by the instrument: Stark. Ev. 666-8; Wright v. Weakly, 2 Watts 89. The common seal of a corporation is not necessarily the seal that is commonly used. A corporation may adopt the seal of another or an ink impression: Crossman v. Hilltown Turnpike Co., 3 Grant 225; 10 Cushing 27; Story on Agency 181, 141 and note; Reynolds v. Glasgow Academy, 6 Dana 37. The action should have been covenant: 1 Chitty’s Pl. 111, 128, 134; Crossman v. Turnpike Co., supra. Seal of a corporation must be proved: Maises v. Thornton, 8 T. R. 303; 2 Starkie on Ev. 300; Jackson v. Pratt, 10 Johns. 381; Hopkins v. Mehaffy, 11 S. & R. 126; Foster v. Shaw, 7 Id. 156. The evidence might be admitted after the case was closed: Richardson v. Stewart, 4 Binney 198. The damages were stipulated by the contract; it was not a penalty: Powell v. Burroughs, 4 P. F. Smith 329.
71 Pa. 186Klase v. Bright (1872)
1. Bright sold out to Klase, who was his partner, took his notes for the purchase-money and transferred them, still retaining the ownership, to Dye, who retransferred them to Bright. Suit was brought, Bright, to Dye’s use, against Klase. Afterwards Dye settled with Klase, allowing Bright’s alleged indebtedness on the partnership; a note for the balance from Klase to Dye was put into his attorney’s hands; he was notified by Bright not to deliver it to Dye. Held, that the settlement did not prevent a recovery by Bright in the suit against Klase. - 2. Klase, having given no value, was not prejudiced by the settlement with Dye, he not owning the note; the suit being to the use of Dye, did not estop Bright from repudiating Dye’s settlement. 3. In this action evidence of partnership debts paid by Klase, was not admissible as set-off. 4. Whaiher Bright was indebted on account of that payment could be ascertained only by account render or bill in equity between the partners; not in assumpsit. 5. Bright sold to Klase his “ right, title and interest ” in the firm: a mill mentioned in the agreement as part of the firm property, was sold by the sheriff as the property of a third person. Held, that Klase could not defend for a failure of consideration, his knowledge of ownership being the same as Bright’s; and Bright sold his right only.
71 Pa. 193Thomas ex rel. Heebner v. Moore (1872)
Error to the Court of Common Pleas of Schuylkill county: No. 239, to January Term 1871. This case was commenced before a justice of the peace, by John Thomas, for the use of H. R. Heebner and brother, against John H. Bracken and William D. Moore. Judgment was rendered by the justice for the plaintiff: the defendant Moore appealed to the Court of Common Pleas. The declaration was in the common counts: the pleas were non assumpsit and payment with leave. The claim was for labor by Thomas at the Charter Oak colliery, in which he alleged that Moore was a partner with Bracken. The question in the case was whether Moore was a partner.' The trial was December 20th 1870, before Ryon, P. J. The plaintiff gave evidence by C. Marsh that he was clerk for Bracken at the colliery; that Thomas worked there; that Heebner and Brother kept a store, and when the workmen wanted an order for goods, they filled out assignments of their wages to Heebner, and gave to the men; witness said that the assignments which were shown to him, were such assignments as were given to Thomas for his labor in September and October 1867: his instructions were from Bracken. Oscar E. Moore, brother of defendant, was frequently about colliery, defendant himself not before November 1867. Oscar received and sold coal. There was a firm of J. H. Bracken & Co.: it transacted business in Philadelphia. Witness had no knowledge of who composed the firm except from the books; found there only the names of J. H. Bracken and Oscar E. Moore. W. D. Moore was frequently about the colliery in the spring and summer of 1867. Plaintiff then gave in evidence an assignment, dated Eebruary 11th 1867, from Bracken to Moore, the defendant, of one-third of his interest in lease for ten years, of the colliery, the whole of the lease having been vested in him, and “ a third of all the personal property appertenant to and connected with and used in working said colliery,” and an assignment dated November 1st 1867, to W. D. Moore, of his remaining two-thirds. Erancis Bannar testified that in August, September and October 1867, he had a negotiation with Moore for rolls for the colliery. Oscar also conversed with witness about them. The plaintiff then called Moore, the defendant, and proposed to prove by him: 1. That on Eebruary 11th 1867, John H. Bracken was in failing circumstances and insolvent; that at the instance of Oscar E. Moore the witness was induced to take a transfer of one-third interest in the said colliery; that William D. Moore never paid any money for the transfer of said colliery, but that the arrangement between said Bracken and Oscar -and William D. Moore, was that William D. Moore should cover up a one-third interest, and give to said Oscar E. Moore a power of attorney to manage the interest in said colliery assigned to said William D. Moore; that the profits of the colliery were to be covered by the said William D. Moore, till at a later period when William D. Moore was to take a transfer of the whole colliery; that during the time between the transfer of the one-third and the remaining two-thirds of the said colliery, said William D. Moore, through Oscar E. Moore, as his attorney, and pursuant to the aforesaid arrangement, took the management of said colliery along with John H. Bracken; that at the date of the assignment of the one-third interest there were large sums of money due by John H. Bracxen for labor and materials, which remained a lien on said one-third interest, notwithstanding such sale; that said William D. Moore well knew this fact, and that he made no other provision for the payment of the same, except that they were to be paid by the future workings of said colliery. The defendant objected to the offer. “ By the court: We admit any evidence tending to show a joint working of the colliery by Bracken and William D. Moore from February 1867, or at the time the debt in suit was contracted; but we exclude so much of the offer as relates to the covering up the property for the purpose of defrauding the creditors of Bracken.” The court sealed a bill of exceptions to this ruling. Plaintiff proposed to ask:— 2. Did you not know, when you purchased a one-third interest in that lease, that you thereby assumed to perform the covenants to be done, kept and performed by the original lessee, so long as you held such interest ? 3. Where he, Moore, got the money from with which he made the advancement of $10,000 ? Both offers were rejected,' and several bills of exception sealed. Moore testified that in March 1867, he gave a power of attorney to Oscar F. Moore to act for him at the colliery; and after-wards left him in charge of it, to look after his interest; his brother was to do for him whatever he thought necessary for the good of the colliery. Defendant had the books of the colliery, and left them with Marsh; he was carrying on then no business in Pennsylvania; he resided in Washington. Gf. W. Pomeroy testified that he sold oil to John Bracken in August and September, and to John Bracken & Co. in October 1867. W. D. Moore paid him for a bill of oil in the fall of 1867. 4. 5. Plaintiff offered to prove the timé the oil was sold to J. H. Bracken & Co.; also, what Oscar F. Moore said as to W. D. Moore’s interest in the colliery, on occasions when witness was negotiating with Oscar about the oil. The offers were rejected by the court, and bills of exceptions sealed. 6. Plaintiff offered drafts drawn by J. H. Bracken on J. H. Bracken & Oo., in Philadelphia, given to plaintiff for goods furnished upon orders in September and October 1867, and accepted in handwriting of Oscar F. Moore. The offer was rejected, and a bill of exceptions sealed. 7. Plaintiff called James Bussell and proposed to prove by him, that after the assignment of the whole interest, Bracken continued to manage the business as before. The offer was rejected, and a bill of exceptions sealed. 8. The plaintiff offered seven orders or assignments on which the suit was brought, dated in September and October 1867. They were all of similar kind; the first was as follows:— “ No. 30. — For a valuable consideration, I do hereby transfer assign unto H. R. & Gr. W. Heebner, or order, the sum of six ($6) dollars and--cents, it being the amount of wages due me for work done for J. H. Bracken in the month of September 1867, and authorize them to recover and receive the same for their own use. Witness my hand the 6th day of September 1867. (Signed) his Witness to signature, John ¡x! Thomas. (Signed) Chas. Marsh. mark.” The offer was rejected, and a bill of exceptions sealed. The plaintiff having dosed, the court directed the jury to find a verdict for defendant; and the jury so found. The plaintiff took out a writ of error and assigned for error:— 1-7. The rejecting the offers of evidence as contained in the several bills of exception of the same numbers respectively as the specifications. •9. That the court erred in not submitting the fact as to whether or not the colliery was carried on jointly by Bracken and William D. Moore to the jury, and directing a verdict for the defendant. However slight the evidence, every question of fact, if pertinent, must be left to the jury: Dougherty v. Stephenson, 8 Harris 210; McIldowny v. Williams, 4 Casey 492; Strohl v. Levan, 3 Wright 177. The doctrine of a scintilla evidence being submitted to the jury is exploded: Howard Express Co. v. Wile, 14 P. F. Smith 201. Partners are not the same as part owners of goods: Story on Part., § 211.
71 Pa. 198Hosie v. Gray (1872)
Error to the Court of Common Pleas of ScTmyhiU county: No. 290, to January Term 1871. This was a scire facias on a coal-lease mortgage, issued September 3d 1867, at the suit of Alexander Gray, Sr., and Alexander Gray, Jr., for the use of Alexander Gray, Sr., against John Hosie and Samuel P. Longstreet. The praecipe (which set out the mortgage ipsissimis verbis) described a coal-lease mortgage from the defendants to the plaintiffs, dated June22d 1865, recorded in Coal Lease Mortgage Book, &c., on a coal-lease from the Catawissa Railroad Company to the plaintiffs and defendants, dated March 4th 1865, for 15 years, the right of the plaintiffs to which, on the day of the date of the mortgage, the plaintiffs had sold to the defendants for $62,050, payable in instalments, the first on the 22d of June 1866, and on the same days in each successive year until paid, the mortgage being given to secure the purchase-money, with the proviso, “ that whenever and so often as there shall occur any failure to pay any instalment of principal for a period of thirty days after the same falls due, as hereinbefore mentioned, and provided the whole amount of principal secured hereby with all interest that may have accrued thereon, shall thereupon for purposes of suit become due and collectable, and that a scire facias may thereupon forthwith issue upon this mortgage, to have the same force and effect as though the whole amount of said principal and interest had been due for a year and a day,” the defendants having paid the instalment due June 22d 1866, and that it was assigned to Alexander Gray, Sr. The writ of scire facias did not contain the proviso above stated. The defendants pleaded accord and satisfaction, and payment with leave, &c. After the case was called for trial, December 27th 1870, before Ryon, P. J., the defendants by leave of the court, filed a special plea, viz.:— “ * * * That the writ of scire facias issued in this case is not upon any mortgage of lands, tenements and hereditaments, but upon a certain coal-lease mortgage, of mining rights claimed and owned by. the same defendants, and which said coal-lease mortgage is recorded only in a certain special Mortgage Book in Schuylkill county aforesaid, known as and called by the provisions of a certain Act of Assembly entitled An act to authorize mortgages of coál-leases in Schuykill county, approved the 5th day of April, A. D. 1853, ‘ Coal-Lease Mortgage Book.’ That the said mortgage was made, and recorded only pursuant to the provisions of said act, and not otherwise, and that no provision is made or given by said act for any proceedings by writ of scire facias thereon, and that such coal-lease mortgage book is not a record upon which, by law, any writ of scire facias may issue, and this the defendants say they are ready to verify.” The plaintiff demurred to the plea. December 28th 1870, the court gave judgment for the plaintiffs on the demurrer and overruled the plea. The plaintiff' gave in evidence a lease dated March 4th 1864, from the Catawissa Railroad Company to the plaintiffs and defendants for the coal-lease and appertenances mentioned in the mortgage described in the praecipe : it was stipulated in the lease that the lessees should not sell or transfer the lease to any person without the written consent of the lessees; it was recorded June 29th 1865. Assignment: plaintiffs to defendant mentioned in mortgage in the praecipe, with the written consent of the railroad company attached. The plaintiffs offered the mortgage recorded June 29th 1865. The defendants objected; because being a coal-lease mortgage no lease was recorded with the mortgage; and no scire facias would lie on a mortgage thus recorded ; because the mortgage does not conform to the scire'facias; does not show that any default had occurred ; and because the mortgage was not recorded within five days as required by Act of April 3d 1853. The court admitted the evidence and sealed a bill of exceptions. The plaintiffs asked leave to amend the writ to make it conform to the praecipe; the court allowed the amendment against the objection of the defendants and sealed a bill of exceptions. The defendants then offered to prove that a part of the consideration for the present and another mortgage given by defendants to plaintiffs was the stipulation by Alexander Gray, Sr., that if the defendants would purchase the interests of plaintiffs in the coal-leases described in said mortgages, he‘would advance or loan to the defendants the sum of $20,000 to enable them to develop the property described in the leases; that the property was unproductive at the time and required further large expenditures to make it productive; that it was a part of the contract of purchase by the defendants of the interest of plaintiffs in said coal-leases; that the said Alexander Gray, Sr., should advance or loan said $20,000, and look exclusively to the profits arising from the future working of the colliery to be created under said leases; that after the sale and execution of the mortgages, the said Alexander Gray, Sr., refused to loan or advance said $20,000, as he had agreed, or any part thereof; that in consequence of such refusal, the defendants were subjected to great delays and losses. That after this suit was brought, but before any suit brought on the other mortgage, the plaintiffs and defendants agreed to submit all matters in variance between them and also sundry propositions made by the plaintiffs to defendants, and counter propositions made by defendants to plaintiffs having reference to a mode of settling and discharging said mortgages to M. P. Hutchinson, Esq. That the respective parties made a full submission as aforesaid to said Hutchinson, with the stipulation that his decision should be final and conclusive; that thereupon the said Hutchinson made an award, which was communicated to said plaintiffs, who thereupon declared their concurrence and satisfaction with said decision; that it was a part of said award that the said plaintiffs should enter satisfaction upon said mortgages. The remainder of said decision was that the said defendants should accept Alexander Gray, Sr. (who was then the sole owner of the mortgages), as a silent partner for one-fourth interest in the profits of the colliery created under said coal-leases, and then worked by the said defendants, upon the said Alexander Gray, Sr., paying to said Hosie and Longstreet the sum of $15,000; that the said Gray, after having agreed to abide by said award of the referee aforesaid, refused to pay said $15,000 or any part thereof, and refused to become interested in said profits as aforesaid, but in violation of the terms of said submission and said award, brought suit upon the other mortgage, and has ever since been pressing it and this suit to trial; that this award of the referee was made in November 1867, and that all that was decided or passed upon by the referee was strictly within the terms of submission and the matters referred to him. The first part of the offer is to show that there were matters in controversy, and to show a consideration for the submission to the referee. The latter part is to show that the mortgage in suit has been discharged pursuant to said submission and the award of the referee. The plaintiffs objected to the offer. It was rejected by the court and a bill of exceptions sealed. In rejecting the evidence the court gave the following opinion: “ The first part of this offer is made to show a controversy between the parties as a consideration for the agreement of submission. It is not material to show a consideration. An agreement to submit all questions is good without a consideration, but is the award as proposed to be proved a binding award ? It does not ascertain the rights of the parties under the mortgage, nor pretend to adjust the rights of the plaintiff growing out of the mortgage. It appears the plaintiff made one proposition to the defendants, and the defendants made one to the plaintiff. These propositions were not based upon the mortgage as a claim, but looked to the future working of the colliery, upon joint account of the plaintiffs and defendants. The award was not to ascertain the rights of the parties as' to the mortgage, and other questions growing out of that and their other dealings, but was that the plaintiff should become a partner, satisfy his mortgages and pay defendants fifteen thousand dollars. This does not seem to us an award in any legal sense. It is a contract and to be binding must have the consent of the parties. The fact that the plaintiff said he was satisfied with the award does not make an acceptance of the defendants’ offer, nor does it become an offer by plaintiff to defendants. It is in effect a recommendation of the referee to the parties that thpy settle upon certain terms which he proposed, and these terms do not appear to have been carried out by either party. It is quite clear that such an award is not good at common law for two reasons. One we have already suggested that the award does not make a final account or settlement between the parties, but proposes terms in the nature of a contract which requires the parties to consent to the terms of the award. “ And the other reason is that the award is uncertain, as to the time the plaintiff is entitled to participate in the profits, and the time for the payment of the fifteen thousand dollars, and therefore is void for uncertainty. “ Whether this is a sufficient equity to prevent the plaintiff from recovering upon the mortgage, even though the award is not valid as an award, is a question of some difficulty, but we incline to the conclusion, that as the award is not such an award as can be enforced, the parties remain unaffected by it.” There were other offers of evidence by the defendants which were overruled by the court below, and exceptions to the decisions sealed. The opinion of the Supreme Court makes it unnecessary to state them. The court charged that the plaintiffs were entitled to recover. The jury found for the plaintiffs $63,022.11. The defendants took out a writ of error. They assigned for error:— Overruling their special plea on the demurrer. The admission of the mortgage. The rejection of the defendant’s offer of evidence. Allowing the plaintiffs to amend the scire facias. ■ Charging that the plaintiffs were entitled to recover. The Act of April 3d 1868, Pamph. L. 57, provides that mortgagees of coal-leases shall have the same remedies as other mortgagees, and such proceedings theretofore instituted should be valid. The scire facias should set out everything necessary for a recovery with the accuracy of a declaration: Kean v. Franklin, 5 S. & R. 147; Umberger v. Zearing, 8 Id. 163; Arrison v. Commonwealth, 1 Watts 374. They cited also Act of April 5th 1853, Pamph. L. 195, which authorizes recording of coal-leases in Schuylkill county in a 11 Coal-Lease Mortgage-Book” within five days after their execution, and requires that a copy of the lease shall be filed in the recorder’s office in one year.
71 Pa. 205Funk v. Frankenfield (1872)
Writs of error to the Court of Common Pleas of Bucks county: Nos. 411 and 412, to January Term 1871. In the court below two actions were commenced on the 6th of January 1870, by William Frankenfield against E. H. Gangwer and IT. S. Funk on notes of which the following are copies :— “ $200. Springfield, Pa., July 25th 1867. Ninety days after date we or either of us promise to pay to Wm. Frankenfeld, or order, two hundred dollars, with interest (at 7 cent), without defalcation for value received. E. H. Gangwer, H. S. Funk.” “$400. Springfield, August 8th 1867.” Six months after date we or either of us, separately or jointly, promise to pay William Frankenfield, or order, the sum of four 7 cents hundred dollars, with legal- interest from date, without defalcation for value received. E. H. Gangwer, H. S. Funk.” Funk only was served; the return as to Gangwer was “Nihil.” Funk was surety for Gangwer in the notes. Both cases were tried together, February 16th 1871, before Chapman, P. J. Funk testified on the trial, that in the fall of 1868 and in the spring of 1869, he gave the plaintiff notice to collect the money due on the notes at once, and if he did not, defendant would not hold himself bound; that Gangwer had property, &c. Gangwer assigned his book accounts to Funk, who placed them in the hands of a/justice for collection. The plaintiff gave in evidence the following letters:— “ Springtown, Bucks co., December 21st 1869. ¥m. Erankfield, Esq. Dear Sir: Yours rec’d. Have patience until about Jan. 3d, and I think you will receive your money. Yours with respect, H. S. Funk.” “ Springtown, Pa. January 6th 1870. Wm. Frankenfield, Esq. 'Sir: I wrote you I would see and intended to pay you about the 3d. I was at Freemansburg, at Bloss’s, Esq., for money already three times, but did not meet him. I was there yesterday. Will go again to-morrow. I will pay you as soon as the money is obtained. I will see you yet this week. Yours, H. S. Funk.” The court charged: * * * “ It is further alleged by defendant, that in the fall of 1868, or spring of 1869, Funk gave notice to Frankenfield to bring suit at once on the notes, against Gangwer, and if he did not do so, he would consider himself discharged. Gangwer says that in the spring of 1869, or in fall of 1868, he was worth $1600, and was able to pay the notes. Sometime after this, his property was swept away by fire, and there was not enough left to meet this responsibility. These suits were not brought till February Term 1870, so that the delay on Frankenfield’s part extended beyond the period when the fire occurred. Funk, the surety, contends that inasmuch as the plaintiff did not institute suits immediately, he is discharged. The law, as laid down by defendants’ counsel, is correct. When a surety gives notice to the creditor to institute suit, and declares if he does not, he will hold himself discharged, if the creditor allows time to elapse, during which the principal debtor fails, the creditor’s laches may be visited upon him. He holds the evidences of debt, and is bound to institute suit at once, if he gets notice, or take the consequences. Mere delay, however, will not absolve the surety. Funk testifies, that in the fall of 1868, he told Frankenfield to collect the money at once, or he would not be responsible. If this be true, he did all the law required him to do. Frankenfield denies the statement made by Funk, and says, instead of Funk giving him notice to proceed, he asked him to delay proceeding. Which will you believe ? According to Frankenfield, there was no such notice given as will absolve Funk. If you believe Funk, he did at this stage of the business all he was required to do. But even if you believe Funk, there is still a question arising as to the effect of the two letters addressed by him to Frankenfleld before the suits were instituted. And upon the solution of this question the case turns. What is the effect of the two letters to which I referred ? In the first letter, dated December 21st 1868, Funk writes to Frankenfield, ‘ Have patience till January, I think you will receive your money.’ The second letter is dated January 6th 1869, and therein Funk promises to pay the money as soon as it is obtained. It is an established rule of law, that forbearance to sue upon a promise, constitutes a consideration. Even supposing Funk at this time had been absolved from the payment of the notes, if he promised to pay in case Frankenfleld would forbear to sue Gangwer, he is bound. The forbearance for one day to sue, constitutes a consideration. When one man engages, if a creditor will forbear to sue a third person he will pay the debt, and the creditor does forbear, he will be hound. Did Frankenfleld forbear to sue ? These letters-must be scanned closely. If they referred to these notes, and there was a delay to bring suit in consequence of Funk’s request for more time, then I say there was a binding promise to pay, whatever Funk’s position was previously to his writing the letters.” The verdicts were for the plaintiff for f>221.66 and $311.21 respectively. On removal of the case to the Supreme Court, the defendant • assigned the charge of the court for error.
71 Pa. 208Bush v. Stowell (1872)
1. In assumpsit on a note payable in instalments, an action may be maintained on each as it becomes due; the statute therefore began to run as soon as such instalment became due. 2. A payment or acknowledgment by one of several joint debtors will not avoid the bar of the statute as to the others. 3. In an action of assumpsit against four on a joint note payable by instalments, one of which had become due within six years, two pleaded the statute ; and there was an acknowledgment by one as to the whole; the verdict was for the plaintiff for the whole, “for §692 whereof and no more two of the defendants D. and II. are liable.” On error by the plaintiff, held, that no injury had been done him; the judgment on the verdict was affirmed. 4. The instruction of the court should have been to find against all the defendants for the amount of the last instalment.
71 Pa. 213First National Bank v. Bache (1872)
407, to January Term 1871. This was an action of assumpsit, brought August 28th 1869, by John N. Bache against The First National Bank of Wellsborough. The case was referred to Samuel F. Wilson, Esq., under Act of February 28d 1870 (Pamph.
71 Pa. 216Everitt's Appeal (1872)
Appeal from the decree of the Court of Common Pleas of Luzerne county: No. 295, to January Term 1872 : In Equity. This bill was filed in the court below, May 1st 1871, by M. E. Everitt against B. F. Louder, Gf. W. Bailey, C. F. Hill and John Steele. The bill set out that the plaintiff, on the 5th March 1870, was the owner of 157 shares of the capital stock of the Second National Bank of Wilke’sbarre, in Luzerne county; incorporated under the Act of Congress, approved 3d June 1864, entitled: “ An Act to provide a National Currency,” and its supplements; the par value of said stock is $15,700. The defendants, Bailey, Louder and Hill, are the commissioners of the county of Luzerne, and the defendant, John Steele, is the collector of county taxes. On or about March 15th 1870, A. H. Ketcham, assessor for the purposes of state taxation, under and by virtue of the Act of Assembly entitled “An Act to increase the revenue of the Commonwealth by taxation of the shares or stock of the National Banks,” approved 12th April 1867, valued his stock at $18,212, which assessment plaintiff believed was without authority of law, was also at a greater rate than was assessed and imposed upon other moneyed capital in the hands of individual citizens of this state. The commissioners, on this assessment, had levied a county tax of 8 mills on the dollar, there being some other classes of moneyed capital exempt from county tax under the laws of this Commonwealth, and on or about May 1870, placed in the hands of the defendant, John Steele, a duplicate with a warrant attached for the collection of this tax; and Steele threatened if the tax be not paid to enforce the collection of the same by a sale of the stock. Under the 4th section of the Act of Assembly, approved 31st 1870, entitled “ An Act providing for the taxation of bank shares,” the Second National Bank of Wilkesbarre, before the 20th January 1871, paid into the state treasury a tax of one per centum on the par value of all the shares of that bank, which payment was applied, by the auditor-general, without consultation with , the' said bank or with plaintiff to the tax of 1871; and the auditor-general subsequently demanded and received from the bank a tax of 3 mills for the year 1870. The prayer was, that the defendants be restrained from the collection of the'tax. The defendants demurred, and the court (Dana, J.) dismissed the bill. The plaintiffs appealed to the Supreme Court, and assigned the dismissal of the bill for error. cited Act of April 29th 1844, § 32, Pamph. L. 497, 2 Br. Purd. 1380, pl. 147; Act of May 15th 1841, § 4, Pamph. L. 394, 2 Br. Purd. 1359; Acts of Congress June 3d 1864 and May 12th 1868; Act of Assembly March 31st 1870, § 3, Pamph. L. 42, 1 Br. Purd. 143, pl. 96, imposes a tax on National Bank stock at 3 mills per annum on the assessed value for state purposes and for county, school, municipal and local purposes, the same rate as may be assessed on other moneyed capital in the hands of individuals. The assessment could not be higher than par. cited Mintzer v. Montgomery Co., 4 P. F. Smith 139; Acts of April 12th 1867, Pamph. L. 74; April 2d 1868, 1 Br. Purd. 142, pl. 86 et seq.
71 Pa. 219Soper v. Guernsey (1872)
1. R. conveyed for $1 to J., and took from J. a mortgage for his support: under a judgment against J. the land was sold to H. — R. recovered against H. in ejectment on the mortgage. Under a sale on a judgment against H. his title became vested in G. In ejectment by G. against R.’s alienee, Held, that II. and G. were privies. 2. In ejectment by G. against R.’s alienee, the record of the ejectment, R. against II., was persuasive evidence. 3. Evidence by G. that J.’s title was in him made a primá facie case, and the defendants having given the mortgage in evidence, the burden was on them to show a breach by J. 4. A condition in a conveyance may be enforced by ejectment, but a consideration, although a covenant, cannot. 5. To such mortgages the principles as to an ordinary money mortgage do not apply. 6. The legal effect of the mortgage from J. to R. was to revest the estate in R., on J.’s failure to perform the condition of support. 7. A mortgagee cannot recover possession of the mortgaged premises before condition broken, where there is stipulation to the contrary, or where it appears to be the intention of the parties that the mortgagor should hold the possession until breach.
71 Pa. 225Butterfield v. Lathrop (1872)
Error to the Court of Common Pleas of Susquehanna county: No. 52, to January Term 1872. This action was commenced January 27th 1869, before a justice of the peace, by A. & D. R. Lathrop against A. D. Butterfield; the justice gave judgment for the plaintiff for $57 85 ; the defendant appealed from the judgment to the Court of Common Pleas, where it was referred to I. E. Carmalt, Esq., under the Act of April 6th 1869 (Pamph. L. 725), authorizing references in the county of Bradford; extended with additions to Susquehanna and Wyoming counties, by Act of January 20th 1870 (Pamph. L. 85). By these acts parties by agreement may refer their cases to one referee, the trial to be conducted as “by the court with a jury;” the referee to state the facts found and his conclusions of law separately, his decisions may be excepted to and reviewed as if tried by the court with a jury, “ and the referee may as the court, settle exceptions on appeal or writ of error to' the Supreme' Court.” “ The report of the referee on the whole issue shall stand as the decision of the court, and the judgment shall be entered as if the action had been tried by a court before a jury; incase of reversal on appeal or writ of error the Supreme Court shall enter the proper judgment or direct a new trial,” &c. The prothonotary shall enter judgment on the report, and either party may file exceptions to the report within ten days, but not after, and that there may be opportunity for a writ of error or appeal to Supreme Court, execution shall not issue within three weeks from the entry of judgment. The following is the referee’s report on the facts :— “ On the 1st of April 1868, O. W. Baxter took the farm of Mrs. Zilpha Deans to work on halves for one year, to be to one-half of the expense and have one-half of the products. Ten cows upon the property were included in that arrangement. “ He first made butter, but subsequently, after consulting Mrs. Deans, took his milk to the ‘Bridgewater Cheese Factory,’ to be made into cheese and sold according to the custom of that establishment. He commenced carrying milk to the factory on the 18th day of May, A. D. 1868. He ceased working and left the farm on the 22d day of July, A. D. 1868 ; how and under what circumstances does not appear. “ A. D. Butterfield, the defendant in this action, testified, and was not contradicted, that in the year 1868 he was one of a committee of three to manage the ‘ Bridgewater Cheese Factory,’ on the part of its patrons, and sell the cheese. He only kept the books of sale. The practice at the factory was to credit the different patrons of that establishment with the number of pounds of milk received — to charge them one and a half cent per pound for what cheese was made — to credit the parties again with the proceeds of the sales in proportion to the amount of milk brought. He, with two others upon the committee, had charge of all sales of cheese in 1868. He kept the books containing the account of the sales, but only knew whom the cheese was made for by the account, which was kept by a girl at the factory. By that account, Butterfield, the defendant, settled with Mrs. Beans and paid her $273.73. This included Mrs. Deans’s personal account and Deans and Baxter’s account. The latter began May 30th and concluded July 25th 1868. After which time the account was kept in the name of Mrs. Deans. At the end of the season the defendant paid the whole of both accounts to Mrs. Deans. “Deans and Baxter were credited at the factory from the 18th day of May to the 22d day of July with 10,422 pounds of milk. The average amount of milk during the season required to make a pound of cheese, was 10J pounds. The average of sales that season was 14f cents per pound net for cheese. One-half the above cheese only belonging to Baxter, the referee holding the quitting of Baxter and the change of the account from Deans & Baxter to Mrs. Deans to constitute a surrender at law, and cannot affect third parties in interest. “ By the sheriff’s return to judgment as No. 575 of August Term 1868, interest on note given by O. W. Baxter to A. & D. R. Lathrop, the note being given to satisfy an account at A. & D. R. Lathrop’s store of $52.15; the balance was fictitious or to secure future advance. “ He, the sheriff, received his writ July 20th, at 8J o’clock A. M., 1868, and sold a quantity of cheese (which was proved to have been Baxter’s interest in the cheese at the factory) on the 30th day of July. “ The sale took place opposite Mrs. Deans’s house, about ten rods from it. She did not forbid the sale, though she said to D. R. Lathrop, who bid off the cheese, and to the sheriff, that ‘ they’d better not touch anything — they might, get their fingers burned.’ “Immediately after sheriff’s sale, Butterfield, the defendant, was notified that A. & D. R. Lathrop had bought Baxter’s interest in the cheese at the factory and wanted the money for it when sold. “ The practice at the factory was to sell the cheese at the factory at different times through the season. The cheese was made in bulk, and there was no separation of the cheese. The factory is about one and a half mile from Mrs. Deans’s farm-house. The sheriff’s sale on Lathrop’s judgment was at Mrs. Deans’s house; cheese not there, but was at factory, or had been sold previously by the committee.” He stated his conclusions of law as follows :— “ Defendant’s law points. * * * “ 3. That there was no levy upon the cheese, it not being a chattel — the sale was irregular. “ As a legal principle, the referee concedes this point, but does not think it sustained by any evidence on the subject of the levy but the return of the sheriff, which appears to be regular. “ 4. That the taking of the milk to the factory was a sale of the milk, and the proper remedy to secure Baxter’s interest was attachment, instead of levy and sale. “ From this position the referee dissents. Those working in the factory were in the employ of the patrons of the factory, making and selling cheese for those patrons at a fixed price, cent per pound. The patrons left their milk at the factory as bailors, to be manufactured into cheese by the bailees, who also possessed a power of sale over the product. “5. A tenant leaving before the expiration of his lease, has no interest in the property upon the farm. “ This may be true of growing crops or other after-acquired property, but cannot be true as against the vested interest of third parties, where, as in this case, there is no evidence of damage or dissent.” * * * The defendant removed the record to the Supreme Court.
71 Pa. 230Fall Creek Coal & Iron Company v. Smith (1872)
1. A libel for materials, &e., was filed, and a writ of attachment was issued against five boats, which were attached by the sheriff. Meld, if the attachment were irregular because joint, as the court had jurisdiction, it was a protection to the sheriff. 2. It was not for the sheriff to determine anything about the irregularity of the writ, but he was bound to serve it. 3. Where a court has jurisdiction of the action, their officers are not responsible for errors in the process. 4. It depends upon the action of the party in interest whether irregular process shall become void ; if inhen'entty without efficacy it is void as to all persons, whether interested or not.
71 Pa. 234Thornton v. Enterprise Insurance (1872)
1. An insurance was made to T., who gaye a mortgage to W. T. assigned his policy to W. as security, and W. assigned to E. T. afterwards conveyed the property insured to 0., and assigned him the policy; the insurance company refused, to approve the assignment. E. afterwards became the owner of W.’s mortgage, and the company insured his interest as mortgagee. By the policy on payment of a loss the mortgagee was to assign the mortgage to the company: the property was burned, and E. received the amount of his insurance, and assigned the mortgage to the company: Held, that the assignment was properly made, that T. had no claim upon the money paid for the loss, and that the company might recover from T. the amount due on the mortgage. 2. Under the Act of June 22d 1871, supplement to act extending to Luzerne county the Bradford county law of 1869 relating to reference, the Supreme Court is not authorized to review the evidence, and re-examine the decision of the court below as to facts. 3. Writs of error bring up questions of law and appeals questions both of fact and law.
71 Pa. 240Van Storch v. Griffin (1872)
1. An exemplification of the record of the state of New York was certified by the clerk, and J. W. Gr. “Justice of the Supreme Court •” it appeared that there were other judges of the same court. J. W. Gr. did not appear to be Chief Justice. Held, not to be properly authenticated. 2. The record was of proceedings in divorce by the husband, in New York, on the ground of adultery ; the respondent at the time of marriage, of the proceedings, and of the decree, resided in Pennsylvania, and there was no actual service on her. In an action by respondent against a person for breach of promise of marriage after a divorce in Pennsylvania on her own libel, Held, that the record was not evidence against her of adultery. 3. The decree in New York was that respondent should not marry again during the life of libellant; the decree as to this had no extraterritorial effect. 4. The plaintiff having been divorced on her own libel in Pennsylvania, it was lawful for her to marry again, and her marriage would be treated as valid everywhere. 5. In an action for breach of promise of marriage, evidence that the general character of the plaintiff for chastity previously, was bad, is admissible in mitigation of damages.
71 Pa. 246Aldrich v. Bailey (1872)
Error to the Court of Common Pleas of Tioga county: No. 301, to January Term 1872. This was an action of ejectment for a tract of land, containing 62 acres, in Sullivan township, commenced May 1st 1869, by Leander Aldrich and Hannah, his wife, in her right, against Robert B. Bailey, Burr R. Bailey, Frank Young, Cornish R. Mudge and Orrin T. Ames. Both parties claimed under William Bingham’s estate. On the trial June 9th 1871, before White, P. J., the plaintiffs gave in evidence articles of agreement dated December 14th 1832, between Robert H. Rose, attorney in fact for the trustees of William Bingham’s estate, and James McConnell. The agreement was: “ That on condition of an improvement and residence on it, the said James McConnell is to be entitled to a lot of land which was surveyed for him in the township of Sullivan, and county of Tioga, containing eighty-five acres and three-tenths of an acre, for which he is to pay to the said trustees two dollars and fifty cents per acre, in the following order, that is to say: one-eighth part on the 14th day of December, one thousand eight hundred and five, and one-eighth part, with interest annually afterwards until the whole be'paid. Interest to commence at time appointed for the first instalment to be paid. And in case the said James McConnell shall abandon the said lot, or leave it untenanted for the term of six months at any time previous to the payment of the first instalment, then the trustees of the estate of the late William Bingham, or their agent or attorney, shall have power to sell and dispose of the said lot to any other person.” There was evidence by endorsement on the duplicate contract which remained in the hands of the trustees, that McConnell had paid $4 for survey ; but not of any other payment by him ; McConnell took possession of the land about the date of the contract and improved it; he died some years afterwards, leaving a widow, Sally McConnell, and nine children, Charles, Eli, Henry, Mahala, afterwards the wife of Christopher Green, Hannah (the plaintiff), James, Angeline, afterwards the wife of Frederick Fair-man, Mary, afterwards the wife of Charles McArthur, and Justus. Five of these children, Charles, the oldest, Eli, Henry, Mahala and Hannah, were living with the father at his death ; the mother and these children “ remained on the place awhile,” and all the children left but Charles and Hannah, who was married in July 1847; Charles went away and came back and stayed until after Hannah was married; she and her husband lived oh the farm on different occasions for a year at a time, and finally came back and occupied the east part of the land till the trial, but had nothing to do with the west half (the part in dispute now -in possession of the defendants), which was occupied by Charles, who lived there when the mother died; the land was divided near the middle; Charles and the mother had it measured off and established a division. Aldrich, the plaintiff, farmed the premises on the shares under the mother’s direction, and lived with her until her death; the plaintiff never claimed a right to them till her death; L. Aldrich, plaintiff, testified that she went into possession of the east part under a will of the widow giving them that part. The plaintiffs gave in evidence by R. C. Simpson, agent of the Bingham estate, that a paper, hereafter given, was found amongst the papers of that estate, and that the land mentioned in it is the same described in the agreement of December 14th 1832, between the Bingham estate and James McConnell; the paper was signed by Sally McConnell, but was not signed by any one representing the Bingham estate; it was witnessed as to Mrs. McConnell by E. B. Geroulds, a sub-agent of the Bingham trustees. The paper was: “ Articles of agreement made between Alexander Baring (and others), trustees of the estate of the late William Bingham, by their attorney, William Bingham Clytner, &c., of the one part, and Sally McConnell, of Sullivan township, county and state aforesaid, of the other part, witnesseth: That the said trustees agree to sell and convey unto the said party of the second part a lot of land, &c., containing eighty-five acres and three-tenths of an acre, provided the said, party of the second part shall and does fulfil all the covenants hereinafter expressed for Mm to perform on his part, &c. The said party of the second part, &c., covenants, &c., to pay for the said land the sum of three hundred and sixteen dollars and fifty-five cents, with interest on the same, payable annually, in ten equal annual payments, &c. On the payment of principal and interest a deed of general warranty to be given. “ In case the party of second part shall abandon the said lot, or leave it untenanted for the term of six months at any time previous to the payment of the several instalments and interest agreed to be paid as aforesaid, or if he shall sell, cut or destroy, or suffer to be cut or destroyed, any timber, except where he may clear, fence or improve, or make use of any except for the purposes of the lot, for building on the premises, and for firewood, or if he shall sell, &c., this agreement without the consent of the said trustees or their agent or attorney first obtained in writing for that purpose, or if the interest is not annually paid, or the instalments of principal as they become due, it shall and may be lawful for the said trustees, &c., * * * without demand or entry, to make void this contract, and to hold and enjoy the said land clear of this agreement, and of all claim of anything they may have done under the same or at their option to enter judgment for the moneys due,” &c. * * * This paper was dated September 18th 1844. The plaintiffs gave in evidence a deed dated January 10th 1869, from James McConnell (the son), E. Eairman and Angeline, his wife, Justus McConnell, Charles McConnell and Eli McConnell, heirs at law of James McConnell, deceased, to Hannah Aldrich, recorded March 2d 1869, for the land in controversy and other lands. Deed dated March 1st 1869, from William B. Clymer, attorney of the trustees of the Bingham estate, to Hannah Aldrich, plaintiff, for the land mentioned in foregoing deed, and stated in the history of the case to be 69.6 acres ; this deed recited the agreement of December 14th 1832, with James McConnell, and also the foregoing paper, dated September 13th 1844. Mrs. Aldrich paid the purchase-money to the trustees. This deed was recorded, when did not appear, but from the page of the record-book stated in the paper-book, probably about the same time with that from the heirs. , This paper-book did not show anything as to this but the foregoing extracts. The plaintiff gave evidence by Simpson that Robert Bailey, defendant, made two payments in 1865 or 1866, on the contract of September 1844; one payment was $100, the other $50. Bailey claimed to be interested in that contract and paid this money to be applied on the purchase-money; three or four years afterwards the trustees received notice of the plaintiffs’ claim, and gave Bailey notice that he could have his money back; he did not take it and it remained in the safe at the agent’s office. The defendants under objection and exception gave in evidence the following release, which did not appear to be recorded, but was produced by a witness who testified that at the time of its execution Sally McConnell asked him to keep it. “ Be it remembered that we, the undersigned, for ourselves, our heirs, assigns, administrators, &c., do assign over to Sally McConnell and her heirs, viz., Charles McConnell, Eli McConnell, Henry McConnell, Mahala McConnell and Hannah McConnell, for and in consideration of the sum of $15, all our legal right, claim, interest, share of whatsoever name or nature in or on the real or personal estate of James McConnell, deceased, as for my equal right and share in said real or personal estate. “ Sullivan, March 4th 1842. his James ><< McConnell, [l. s.] mark, his Justus M McConnell, [l. s.] mark. Frederick Fairman, [l. s." Charles McArthur, [l. s.j Charles McConnell, [l. s.] “ In the presence of W. C. Ripley, John Fox, Thomas Jerril, paid witnesses. “ Endorsed. “We, the undersigned, acknowledge the within sum of $15, by note. Sullivan, March 4th 1842. his James M McConnell. mark. Frederick F. Fairman. Charles McArthur.” Also, under objection and exception, a deed dated July 18th 1846, from Sally McConnell to Charles McConnell, conveying the land in. dispute described as the west half of the tract. This deed was recorded after the above deeds of January 10th, and March 2d 1869, to Hannah Aldrich; the precise date of recording did not appear on the paper-book. The defendants gave evidence also that in September 10th 1858 Charles McConnell conveyed part of the premises to Benjamin Aldrich; this deed was recorded September 17th 1858. He testified that he had the agreement of Sally McConnell in his possession when he bought from Charles, and within two years he gave it to Mrs. Aldrich. Also a deed without date, from B. Aldrich to Levi Aldrich, which was acknowledged November 13th 1860, and recorded September 13th 1866. Levi testified that he knew of the agreement of the trustees with Mrs. Aldrich, but had not seen it. Levi Aldrich, by deed without date, but acknowledged November 13th 1860, conveyed to Martin A. Cass; this deed was recorded May 5th 1869; Cass testified that he had heard of the contract but had not seen it; Cass by deed not dated but acknowledged, September 16th 1861, conveyed to D. M. Young; this deed was recorded December 9th 1862; Young died shortly afterwards, leaving a minor son, Frank, one of the defendants, whose guardian is Cornish Mudge. The other defendants all claim under D. M. Young, and occupy the land by authority of Mudge the guardian. Plaintiffs requested the court to charge:— 1. That if the jury believe from the evidence that Sally McConnell, under whom defendants’ claim, was left in possession of the land in controversy, at the time of the death of James McConnell, her husband, and remained in possession of it until she sold her interest in the same to Charles McConnell, and that his possession and those claiming under him down to the present defendants, was in pursuance of the interest or title so conveyed by Sally McConnell to Charles McConnell, such conveyance and possession will not affect plaintiff’s right to recover except as to the title of Charles McConnell arising as heir to his father’s estate, and from the paper signed by Justus and James McConnell and others, dated 4th March 1842, and purporting to convey the interest of those executing the same to Sally McConnell and certain of her heirs, among which is the said Charles McConnell and the plaintiffs in this suit. 2. That the possession and title of the widow Sally McConnell and Charles McConnell, and those claiming under them, as shown by the evidence, except so far as such title is derived from the heirs of James McConnell, deceased, is no defence in this suit. _ 3. That by the contract to her from the Bingham trustees,' Sally McConnell acquired no greater title than she had before as widow of James McConnell, and if she had she would have held it as trustee for the plaintiff, Hannah Aldrich, and other heirs of James McConnell, and she could not convey it to Charles McConnell, or to others, so as to affect plaintiff’s right to recover her interest in the suit. 4. That from all the evidence, plaintiffs are entitled to recover in this suit on her legal title given in evidence for all the land in controversy, subject to a conditional verdict, that if the jury believe from the evidence that Frank Young is entitled to the undivided title of Charles McConnell, derived as heir from his father, James McConnell, as effected by the contract signed by him and others given in evidence, it must be upon condition of. payment of a proper proportion of the purchase-money according to the contract to James McConnell, given in evidence. The court, after recapitulating the evidence and referring to the deeds from Charles McConnell and his successors in title to Young, said: * * * “ These conveyances are all recorded. By them the equitable title of the land occupied by the defendants, included in plaintiff’s writ, was vested in D. M. Young, unless the jury, from the evidence, believe that Benjamin Aldrich, Levi J. Aldrich, Martin A. Cass and D. M. Young had notice of the secret trust under which Mrs. McConnell held her contract with the Bingham trustees for the whole tract. The fact that her husband held a contract for the same land, executed in 1832, and that a duplicate of it was found in the office of the trustees after the payments had been made by one of the defendants, on the contract with Sally McConnell, in 1865 and 1867, is not notice. Proof of a knowledge of the existence of such a contract by the defendants would be. So would proof of a knowledge by said defendants of the fact that Mrs. McConnell’s husband, in his lifetime, held possession of the land in controversy under such a contract.” * ■* * “ Since the date of Charles McConnell’s deed, July 13th 1846, the legal possession of the tract of land in dispute has been in Charles McConnell, Benjamin Aldrich, L. J. Aldrich, M. A. Cass, D. M. Young, and the parties now in possession. So far as the evidence shows, no person has attempted to interfere with their continuous possession, or made any claim to the right of possession as against them, until the bringing of this ejectment. This long-continued, peaceable possession is pretty strong evidence that the claimants under Charles McConnell did not know anything of any other contract with the Bingham trustees for this lot of land than Mrs. McConnell’s contract, and unless the jury are satisfied from the evidence that they did have such knowledge, it cannot be inferred from-the proof of the existence of such a contract, which has been introduced by the plaintiffs in this suit.” * * * Upon the points of the plaintiffs, the court charged :— “ These points are affirmed, if from the evidence the jury find that the claimants under Charles McConnell had notice of the trust upon which Mrs. McConnell held her contract with the Bingham trustees, but they are not applicable to the case, if the jury do not find that said claimants had some notice. If said claimants were bond fide purchasers of Charles McConnell’s equity, having knowledge of the title under which he claimed, derived through the contract of the Bingham trustees with his mother, and without notice of the prior contract between said trustees and the father of said Charles McConnell, they cannot be affected by the trust which the law imposed on Mrs. McConnell when she made her contract with the Bingham trustees, and are entitled to hold the land claimed in plaintiff’s writ discharged of such trust, subject only to the amount of purchase-money due said trustees on this portion of the land under the contract between said trustees and Mrs. McConnell, and this having been paid to said trustees by Hannah Aldrich, and this title of'said trustees having been conveyed to her by deed of March 1st 1869, the plaintiffs, if not entitled to an absolute verdict, are entitled to a conditional one. If, therefore, under the facts given in evidence, the jury are of opinion that plaintiffs are entitled to an absolute verdict, they will render such verdict. But if the evidence does not authorize such findings, then they are instructed to return a verdict in favor of plaintiffs for the land described in their writ, subject to be released on payment of the purchase-money due on this portion of the land under the Bingham contract, and costs of suit, determining, also, the amount of purchase-money and interest due, and the time of payments of the same and costs.” The jury found for the plaintiffs' the land described in their writ to be released on the payment of $414.11. The plaintiffs took a writ of error and assigned for error, The admission of the evidence objected to : The refusal of plaintiffs’ points. The parts of the charge above given.
71 Pa. 256Everhart v. Searle (1872)
Error to the Court of Common Pleas of Luzerne county: No. '818, to January Term 1872. This was an action of assumpsit, commenced May 25th 1870, by James Searle against John T. Everhart. On the trial, January 9th 1872, before Harding, P. J., the plaintiff gave in evidence the following paper:— “Pittston, Pa., January 15th 1870: “ I hereby agree to give James Searle, of Pittston, Pennsylvania, in compensation for services rendered in procuring the sale of certain real estate in said Pittston, Luzerne county, all he can obtain for the said real estate, over and above $125 per acre. The said real estate is known as the Elizabeth Drake property, on the Lackawanna river, near John Marcy’s ‘ old forge.’ This to continue for one year. A. S. Elagg. Wilbraham, Mass.” He then testified: “ After I made contract with Elagg I then said to Mr. Everhart that I was prepared to sell this property known as the Elizabeth Drake property; could sell Mr. Elagg’s interest in that property. The result of our conversation in reference to the sale was the contract with Everhart,” viz.: “$500. “Pittston, Pa., January 17th 1870. “ I hereby agree to pay James Searle five hundred dollars; two hundred and fifty on the delivery of the deed, the balance, two hundred and fifty, by note, due in ninety days thereafter, for his services in assisting to negotiate a sale and purchase by me of fourteen of eighteen shares, or all, if he can obtain them conveniently, of the eighteen of a certain piece or parcel of land, situate in Lackawanna township, on Lackawanna river, near the oid forge, known as the Elizabeth Drake property. The fourteen shares now being owned by Captain A. S. Elagg, of Wilbraham, Massachusetts. John T. Everhart. “ The offer Everhart made was $150 per aere for the property, and the condition of this agreement was to pay me the $500 additional if I would sell him the property at $150 per acre, instead of selling to other parties. I had offers from other parties.” * * * After receiving the offer and taking this contract with Everhart I saw Mr. Flagg. We decided to sell the property to Mr. Everhart at his offer. I thereupon saw Mr. Everhart and brought him to my house where Mr. Flagg was waiting the result of my efforts to sell the property. We came down to Wilkesbarre and consummated the sale; Flagg, Everhart and myself came down to Wilkesbarre on 18th January 1870. We went to office of Mr. Y. L. Maxwell, and there the papers were executed for sale; papers signed that day or about that time. The price was to be $150 per acre. The contract was executed and the deed prepared for Mr. Flagg to take home with him. * * * Flagg came to Pittston from my letter to him; no arrangement before date of agreement; Everhart proposed to buy the land, and said it was worth $500 more to him than to any one else; did not consider myself agent for Everhart till paper of 17th January 1870; Flagg told me that he wished me to keep oversight of the property, find a purchaser and write to him from time to time. * * * This $500 additional was offered to induce me to let him have the property instead of letting the other parties, who were negotiating for it, have it. I did not consider myself the agent of Everhart, but of Flagg.” The land was conveyed to Everhart by Flagg, February 10th 1870. . For defendant Flagg testified: * * * “ I had authorized James Searle to sell that land if he could get $125 per acre or more; I would have taken that sum, of which fact Searle was informed; he did not sell it, however, because I found out that he was Ever-hart’s agent to purchase, or to help purchase it of me, and Everhart learning at the same time that he had become my agent to sell, we both refused to have anything more to do Avith him.” * * * On cross-examination witness testified: * * * “After giving that authority to Searle I was staying by invitation at his house, and was in his parlor when Mr. Searle came up and informed me that Mr. Everhart was below in his store; I asked him to bring Mr. Everhart up as I wanted to see him; he did bring him up, and we had conversation together on the subject of the purchase and sale of my land$, but we did not meet for the purpose of arranging, it was rather accidental; that was the way and the only time we were ever together in Pittston relative to that sale.” The defendant’s 1st point was:— “ The plaintiff having, by his own showing, proved himself the agent for the sale of the land at the time he made the contract to act as agent for -the purchase upon which he now sues, has thereby declared himself guilty of constructive fraud.” He submitted four other points. The court read all the points to the jury and affirmed them, and said further:— “ With reference to the 1st point, however, we say to you that assuming the fact to be as stated in the point, we affirm it; but this it is not our province to do. The facts of the case are for you, and should your finding of the particular fact stated in the point correspond with that statement, then the point is well put, and would be affirmed. * * * “ Having, in the outset of our charge, answered the points submitted to us by the defendant’s counsel, and having'further briefly called your attention to the testimony, we say to you, in conclusion, that the whole matter at last is involved simply in questions of fact, which are exclusively for your disposition. You are to find whether the plaintiff was the agent of Mr. Everhart for the purchase of the land, or whether his contract with him was merely that he Avould give him the preference over other purchasers. James Searle, the plaintiff, had control of the sale of the lands, and he had the right to prefer one purchaser over another. * * * If, therefore, you find that the'contract between these parties was predicated of the basis that the plaintiff should give Mr. Everhart the preference over other purchasers, and that Mr. Everhart was to pay him therefor the sum of $500, then we say to you, that such contract was founded upon a good consideration; and further, that the plaintiff had a perfect right to enter into it and to insist upon its fulfilment.” * * *] The verdict ivas for the plaintiff for $553.50. The defendant took a writ of error, and assigned for error:— The qualification of his 1st point; the part of the charge in brackets, and that the court took “ up the defendant’s written points, and as to each one — except the first — simply reading it over and saying ‘ this is affirmed,’ and then laying them aside and delivering a general charge to the jury, disregarding the principles therein mentioned.” The law does not permit the agent for the sale of a tract of land to become at the same time agent for the purchase of the same: Story’s Agency, § 211; Ex parte Bennett, 10 Ves. 381; Gregory v. Gregory, Cooper 201; Crowe v. Ballard, 3 Bro. C. C. 117; s. c. 2 Cox’s C. C. 253; 1 Lead. Cas. in Eq., notes to Fox v. Mackreth, 196, 214, 3d Am. ed.; Davoue v. Fanning, 2 Johns. Ch. 352; Copeland v. Merc. Ins. Co., 6 Pick. 198; Lazarus v. Bryson, 3 Binney 54; Moody v. Vandyke, 4 Id. 31; Rankin v. Porter, 7 Watts 387; Bartholomew v. Leech, Id. 472; Noel v. White, 1 Wright 514. The seller himself cannot become agent for the purchaser: Massey v. Davies, 2 Ves. Jr. 317; Benson v. Heathorn, 1 You. & Coll. C. C. 326; Gillett v. Peppercorne, 3 Beav. 78; Paley on Agency 33, 37. One employed to sell cannot contract with a purchaser for his own private advantage: East India Co. v. Henchman, 1 Ves. Jr. 287, and n. 2; Massey v. Davies, 2 Id. 317, and notes a and 1, 2, Sumner’s ed.; Paley on Agency 38 and notes; Story’s Eq., § 1261. The rule is enforced without regard to the intentions, good or bad, in the particular case, simply upon principles of public policy: Ex parte Bennett, 10 Vesey 381, 385. cited Gould v. Lee, 5 P. F. Smith 99; Barnhart v. Riddle, 5 Casey 96; Aldridge v. Eshleman, 10 Wright 420, as to explaining a writing.
71 Pa. 262Bross v. Commonwealth (1872)
1. The Act of December 9th 1783 does not authorize an appeal from an order of the Quarter Sessions, refusing to moderate or remit a forfeited recognisance. 2. An appeal is given only when the proceedings on a forfeited recognisance are in the Common Pleas. 3. A certiorari not specially allowed by one of the justices of the Supreme Court, under 33d sect, of Act of March 31st 1860, will not remove an indictment, &c., in the Quarter Sessions. 4. Commonwealth v. Rhoads, 9 Barr 488, criticised.
71 Pa. 264Sweetzer's Appeal (1872)
1. Sweetzer being embarrassed, and owning real estate against which were liens, and Jiffkins being liable for him, under an agreement his real estate was sold at sheriff’s sale under one of the liens, to Scranton, who conveyed the land to Jiffkins, who mortgaged it to Scranton for a loan to pay the liens — Jiffkins to hold the property for five years, appropriate the income to pay the liabilities, and at the end of the time reconvey to Sweetzer, upon his paying any balance including compensation for Jiffkins’s trouble. Held, that the transaction was a mortgage, and after the five years Sweetzer was entitled to a reconveyance on paying any balance which might be due Jiffkins. 2. The object of such transaction may be shown by parol; it is not obnoxious to the Statute of Frauds, having never been a conveyance, but a security merely. 3. Such mortgage may be effected through a sheriff’s sale, as well as by a direct deed. 4. The transaction being to procure a loan on Sweetzer’s property and not to make a sale, it would be fraud to permit it to fail.
71 Pa. 276Lower Macungie Township v. Merkhoffer (1872)
1. Miners had excavated into the side of a road, making a precipitous bank; no guard was put up; a wagoner in driving along the road broke the bank; his wagon and team fell over and were injured. Held, to be negligence by the supervisors for which the township was liable. 2. It was not a defence that the driver by careful driving could have avoided the accident. 3. A highway must be kept in such repair that skittish animals may be employed without risk.
71 Pa. 280Ueberroth v. Riegel (1872)
Error to the Court of Common Pleas of Lehigh county: No. 82, to July Term 1870. This' was an action of assumpsit by John Riegel and Stephen Riegel, trading as Riegel & Brother, against Jacob J. Ueberroth. The writ was issued December 17th 1868. The cause was tried, April 18th 1870, before Longaker, P. J. The plaintiffs, under objection that the paper was not stamped, and exception, gave in evidence this paper:— “ Eriedensville, Dec. 15th 1865. “ Riegel & Bro. “ Sirs: Please give the bearer, Henry Pink, the goods which he will select, not exceeding over five hundred and fifty dollars, on my account. J. J. Ueberroth.” They gave evidence by a clerk in their store that in December 1865, they had delivered goods to the amount of $587.50 to Fink on the foregoing order, and had charged them on their books to Fink. The defendant gave evidence that the debt could have been collected from Fink during nine months after the delivery of the goods. The defendant’s 4th point, which was answered in the negative, was as follows:— If the' charge of goods to Henry Fink satisfy the jury that plaintiffs accepted Fink as the principal debtor and Ueberroth as guaranteeing payment, the defendant, if liable at all, can only be liable as guarantor upon notice of acceptance, and» after the exercising of due diligence in collecting of Fink. The court instructed the jury also: “ that the defendant, by the written paper, was a surety, and therefore the only question of fact is, were the goods delivered.” The verdict was for the plaintiffs for $690.25. On removing the record to the Supreme Court the defendant assigned for error, the admission of the order in evidence, the charge of the court, and denying the defendant’s point.
71 Pa. 282Hunter v. Nolf (1872)
Error to the Court of Common Pleas of Lehigh county: No. 178, to January Term 1871. This suit was in assumpsit, and was brought March 28th 1868, by Charles Nolf against Joseph Hunter. Prior to October 1st 1866, the plaintiff and defendant, being applicants for the office of assistant assessor under the United States revenue laws for a division in the Sixth Collection District of Pennsylvania, it was agreed between them that the plaintiff should withdraw his application, and if the defendant should receive the appointment, they should perform the duties jointly and share the receipts equally. The plaintiff withdrew and the defendant was appointed; the plaintiff afterwards assisted in performing the duties ; he brought this suit for services in performing those duties. Independently of the contract previously to the appointment, the plaintiff alleged that the defendant, after being commissioned, contracted with him for the performance of the services for which the suit was brought. On the 8th of November 1870, the case was tried before Longaker, P. J. The plaintiff testified that the contract as above stated had been made between Mm and the defendant. He testified also, that shortly after the appointment the defendant employed him until April 1st 1867, in duties of the office of assessor; he testified as to the value of his services; he said they had a regular contract, which was that “if I would help to do the regular business he would give me half. This was spoken of before and after he had the appointment. * * * The contract was I should have one-half the proceeds; I claimed to be a partner in the assessing office with Hunter; I could not claim to be a partner because only one man could get the office; I claim one-half the proceeds because he offered me that; after he got his commission we agreed again; it appears that the consideration of the contract was that I should withdraw being an applicant; the bargain was spoken of after I commenced performing the duties of the office.” He further testified that he had received sums of money from defendant in October and November, which he said were “one-half” of those months, and also offered plaintiff what he said was “one-half” for December. W. Stoltzenbach. testified that the parties came to Ms office; defendant said they were making assessments ; he had employed the plaintiff to assist him in making assessments and distributing blanks. The defendant submitted a number of points, raising the questions whether the contract was illegal and whether there was evidence of a contract made after the commission was issued. The court charged that the original contract was illegal, and submitted to the jury in answer to the points, whether there was a contract subsequently to the commission. The court further charged:— “ The contract — if you find there was one — for the alleged services rendered, you will inquire for its consideration, and at what time it was entered into. If it were made prior to the obtaining of the commission by Hunter and in consideration that the plaintiff should withdraw his application for the office of assistant assessor of the United States, so that the defendant might receive the appointment, then the contract is void and cannot be enforced in this trial. If, therefore, the plaintiff rendered services after the defendant was commissioned with the expectation that he was to be paid therefor by virtue of a contract entered into prior to the appointment of the defendant, he cannot recover. It was the plain duty of the plaintiff to know the law and the illegality of his contract before .he rendered services. If, however, you can reasonably find from the testimony that these services were not by virtue of that which took place before the appointment of the defendant, and the defendant was obliged to have the aid of some one, and he selected the plaintiff to perform those services and the services were performed by reason of said new engagement, or any new contract, either express or implied, after the commission was issued, then the plaintiff may recover what his services have been shown to be reasonably worth.” The verdict was for the plaintiff for $106.06. The defendant took out a writ of error, and assigned for error the instructions of court. as to the illegality of the contract cited Clippinger v. Hepbaugh, 5 W. & S. 315; Hatzfield v. Gulden, 7 Watts 152; Bogle v. Kreitzer, 10 Wright 465. Whatever arrangement may have been made after the commission issued, the services were rendered in pursuance of the original contract, and therefore void: filson v. Himes, 5 Barr 452.
71 Pa. 285Stopp v. Smith (1872)
1. In tort the plaintiff cannot in the verdict for damages, recover compensation for the trouble and expense of establishing his right. 2. In tort only such damages can be recovered as arose out of the injury. 3. Barnett v. Reed, 1 P. F. Smith 190, remarked on: Good v. Mylin, 8 ' Barr 51, adopted.
71 Pa. 287Arnold v. Macungie Savings Bank (1872)
37, to July Term 1871. This was an action of assumpsit brought February 25th 1870, by Jacob A. Arnold and thirteen others, “partners trading as Post No. 13, Grand Army of the Republic, against the Macungie Savings Bank.” The suit was brought to recover a sum of money deposited in the bank in the name of “ W. W. Hamersly, H. 0. Hunsberger and T. T. Apple, trustees of Post No. 13, Grand Army of the Republic.” The case was tried April 12th 1871.
71 Pa. 291Bartholomew's Appeal (1872)
1. In partition in the Orphans’ Court at the return of the commissioners, all the heirs but two appeared ; the land was offered to those appearing successively ; one in open court offered $4 above the valuation, that being the highest bid; on a rule granted, those then absent afterwards appeared, and one offered $8 above the valuation; the heir who had offered $4 then offered $8.01, and the land was adjudged to her: Held, that to be error-, it should have been adjudged to the heir offering $8. 2. In “ all cases of partition in any court,” a party having made one bid is not entitled to another-. 8. The bid of a party should be made in writing. 4. It is irregular when part only of the heirs are present at the return of an-inquest to offer the land to them; a rule should be granted on all to come in before offering to any. 5. IClohs v. Reifsnyder, 11 P. ¶. Smith 240, adopted.
71 Pa. 293Moyer v. Pennsylvania Slate Co. (1872)
Writs of error to the Court of Common Pleas- of Northampton county: January Term 1872. In the court below a number of suits were brought to August 'Term 1870 against the Pennsylvania Slate Company, August Welle and others, stockholders in the company. The suits were under the 7th section of the Act of June 25th 1864, Pamph. L. 947, incorporating The Pennsylvania Slate Company.
71 Pa. 299Holl v. Deshler (1872)
1. Construction of a statute must be made on the whole; not on disjointed parts. 2. In order to avoid a preference to a creditor under the Bankrupt Law by one in contemplation of bankruptcy, the preference must be within four months before filing the petition for adjudication. 3. "Where the transfer is to a stranger the act may be avoided if the petition is within six months. 4. The provision in the 39th sect, for recovering hack by the assignee, money, &e., paid, &c., by the bankrupt must be construed in consistency with the 35th sect., with reference to a creditor and stranger respectively.
71 Pa. 302Fry's Election Case (1872)
Certiorari to the Court of Quarter Sessions of LeMgh county: No. 86, to January Term 1871. This case was argued at Harrisburg May 13th 1872. The proceedings in this case were commenced by the petition of citizens of the Second Ward in the city of Allentown, contesting the election of certain persons returned as elected members of the common council of that city. The parties afterwards agreed on the following ease stated:— It is admitted that at the municipal election in the Second Ward of the city of Allentown, held October 11th 1870, George B. Both received 223 votes for the office of common council; George Pry received 218 votes for said office ; that John Nonnemacher received 208 votes for said office; and Eli J. Saeger received 211 votes for said office; that the election officers returned that the said George B. Both and George Pry were elected; that two petitions were filed in due form of law in the Court of Quarter Sessions — one alleging that said Eli J. Saeger was elected instead of said George Pry to said office, — the other alleging that said John Nonnemacher was elected instead of said George B. Both to said office; that said George Pry and George B. Both filed their respective answers to said petitions, admitting that the persons named in the petition, except one, did vote; that the following named persons did vote for said George Pry and said George B. Both, to wit, J. A. Schaffer, and ll others. It is further admitted that the said voters are students at Muhlenberg College, an institution of learning located in said ward; that they áre citizens of the state of Pennsylvania; that they claimed that their residence was in said college, where they have lived from one to three years; that they came to Allentown from other counties for no other purpose than to receive a collegiate education, but intended to leave after graduating; that they were assessed and paid taxes before said election. It is further admitted that these students are divided into two classes, as follows:— The Pirst Class : Those who support themselves, or are assisted pecuniarily by persons other than their parents, are emancipated from their fathers’ families, have left the home of their parents, and never intend to return and make it a permanent, abode. In this class are S. W. Kuhns, and four others. The Second Class: Those who are supported by their parents, visit their parents’ home during vacation, and may or may not return there after graduating. It is further admitted that of the votes cast for said John Nonnemacher and Eli J. Saeger there are three, those of J. H. Neiman, and two others, also students at said college, who claimed residence in said ward; that t]iey did not intend to remain here when they came; that they came to receive a collegiate education, and leave after they graduate. The legality of said votes is disputed, and the question as to the legal effect thereof is submitted as a matter of law for the court. If the court should be of the opinion that the persons named, or any of them, are legal voters, then their votes are to be allowed and counted in favor of the party for whom they were cast. All of said votes which, in the opinion of the court, are illegal, are to be cast out, and then the court to decree in favor of the parties having the highest number of votes. On the 5th of June 1871, the court (Longaker, P. J.) made a decree declaring Eli J. Saeger elected, and the certificate of election theretofore issued to Fry to be void. On the removal of the record by Fry to the Supreme Court, this decree was assigned for error. The charter of the chy of Allentown, approved March 12th 1867, sect. 4, provides: “ That the citizens of said city who are otherwise qualified voters under the laws of this Commonwealth, who shall have resided within the bounds of said city at least six months immediately preceding the election,.” shall meet, &c. referred to art. 3, § 1, Const. of Pennsylvania; Election Law, July 2d 1839, §§ 66, 67, Pamph. L. 532, 1 Br. Purd. 519, pl. 44, 45. The apparent or avowed intention of constant residence, not the manner of it, constitutes the domicil: Guier v. O’Daniel, 1 Binney 349; Graham v. Com’th, 1 P. F. Smith 258; Sears v. Boston, 1 Metcalf 250; Miller’s Estate, 3 Rawle 312; Thorndike v. Boston, 1 Metcalf 242; Putnam v. Johnson, 10 Mass. 487; Granby v. Amherst, 7 Id. 1. referred to same article and section in the Constitution, and sections of Act of 1839; also section 63, 1 Br. Purd. 548, pl. 41. Residence is synonymous with domicil: Cooper v. Galbraith, 3 W. C. C. R. 546; Crawford v. Wilson, 4 Barb. S. C. 505; Chase v. Miller, 5 Wright 404; 1 Bl. Com. 59; Opinion of the Judges, 7 Mass. 523; McDaniel’s Case, 3 Penna. L. J. 315; Kneass’s Case, 2 Parsons 581. A domicil is where a person has fixed his habitation without any permanent intention of removing therefrom: Crawford v. Wilson, 2 Barb. S. C. 519; Matter of Wrigley, 8 Wend. 142; Phillimore, Law of Dom. 13; Frost v. Brisbin, 19 Wend. 11; Green v. Wyndham, 18 Maine 225. The intention which gives domicil is an unconditional intention to stay always: The Venus, 8 Crunch 290; U. S. v. Penelope, 2 Pet. Adm. 450; White v. Brown, 1 Wall. Jr. 217; Guier v. O’Daniel, 1 Binn. 349, n.; Casey’s Case, 1 Ash. 126; State v. Daniel, 44 N. H. 383; Still v. Woodville, 38 Miss. 646; Jennison v. Hapgood, 10 Pick. 77; Horne v. Horne, 9 Ired. 99; Graham v. Public Adm’r., 4 Bradf. (N. Y.) 127; De Bonnaval v. De Bonnaval, 1 Curteis 856; Vattel, Law of Nations, B. 1, ch. xix., § 218; Phillimore on Dom. 148; Love v. Cherry, 24 Iowa R. 205; Folger v. Slaughter, 19 La. An. 323; Mears v. Sinclair, 1 West Va. 185; Matter of Fitzgerald, 2 Caines 317; Johnstone v. Beattie, 10 Clark & F. 129; Moorhouse v. Lord, 10 H. L. Cas. 285; Webster’s Works, vol. vi., p. 520. If a person accepts an office which requires that he reside at a particular place, that place is his domicil: Munroe v. Douglass, 5 Madd. 379; Code Civil Act 106-107; Abington v. North Bridgewater, 23 Pick. 176; The State v. Ross, 3 Zab. 527: Ihsam v. Gibbons, 1 Bradford 70. A student of a college does not change his domicil by his occasional residence at the college: Granby v. Amherst, 7 Mass. 1; Kilham v. Ward, 2 Id. R. 236; Harvard College v. Gore, 5 Pick. 374; Jennison v. Hapgood, 10 Id. 98. Going to a public institution and residing there solely for the purpose of education, would not, of itself, give a right to vote there, because it would not necessarily change the domicil: Opinion of the Judges, 5 Met. 589; Horne v. Horne, 9 Ind. 99.
71 Pa. 312Hartman v. Shaffer (1872)
Error to the Court of Common Pleas of Northampton county: No. 194, to January Term 1872. On the 20th of May 1869, Francis Har.tman brought an action of assumpsit against Hannah Shaffer, executrix, &c., of Christian Shaffer, deceased. The declaration was on a note signed by the decedent for $4300, dated March 24th 1863, and payable two years after date. The cause was tried May 3d 1871, before Longaker, P. J. The plaintiff called Cecilia Hartman, his daughter, and granddaughter of the decedent, who, on her examination in chief, testified, that she wrote the note at decedent’s house, her brother Peter and her grandfather were by; her father, grandfather, and Peter calculated the old notes, and then the note was written for $4300, and then the decedent signed it in her presence. On cross-examination she said that the decedent’s wife and daughter Hannah were living with him; Hannah was not then at home; the wife was in the other room; the door was closed; she was not called to come in when the note was written; witness did not tell Hannah when she came home; did not tell her or the wife before the decedent’s death; nor her own mother. The decedent died about January 1st 1864, and was then between 91 and 92 years old. The plaintiff lived about two miles away. After witness sat down to write the note they laid two notes down for her to copy from; her father also said she should write the note; they said they had given two old notes, one for $1500 and one for $349. Witness did not see what became of the notes; both gave her the amount of the note; she read the note after it was signed so that both understood it; she read it in English because it was written in English; did not explain it in German; the decedent did not speak English; the family conversation was in German; she did not know what they did with the old notes nor with the new one; Peter came in just as .she was finishing the note and saw the note signed; her father it was who called her to come in; she did not see any money paid by her father to her grandfather; the decedent’s wife died after him. Plaintiff called Peter Hartman, his son, who testified that he saw the decedent sign the note under the circumstances stated by Cecilia. He told the widow of the decedent after his death that the note had been signed; did not tell the plaintiff, she and he were not good friends. The plaintiff then gave the note in evidence, viz : “ Hellertown, March 24th 1863. “ tow years after date I prommis to pay Francis Hartman the sum for thousad three hundred dolles for value receive with out defalcation. Christian Schaerer.” . [Signature in German letters.] The defendant called Solomon Hess and offered to prove by him that he had lent the plaintiff $1500 in 1867; to be followed by proof that when the note was given the circumstances, &c., of the decedent were such as not to require him to have the amount of money for which the note was given; that the circumstances of the plaintiff at and before the note was given were not such as to enable him to lend the amount of money in the note or pay it for the decedent; that the plaintiff as son-in-law of the decedent wras dissatisfied with his will, and that notwithstanding he did not present the note to the executrix for payment, nor inform her of its existence until he brought suit, that being his first demand for payment; that the executrix settled her final account of the estate October 3d 1867; that at the date of the note the decedent and plaintiff were on unfriendly terms; that when the will was read after the death of the testator, the plaintiff asked defendant and others who were present whether the decedent had any debts, that defendant said there were none so far as she knew, and the plaintiff made no reply; that both before and after the date of the note the plaintiff was largely indebted and paying interest. The plaintiff objected to the offer of the testimony of Hess, it was admitted and a bill of exceptions sealed. Hess testified in accordance with the offer. The defendant gave much evidence in detail of the matters proposed to be proved in following up the testimony of Hess. He also gave evidence that neither the plaintiff nor his wife were at the decedent’s funeral. The will of the decedent was dated January 17th 1863, and proved March 28th 1864. It was read to the family in the presence of the plaintiff and his wife about 30 days after decedent’s death. The final account of the executrix was filed October 3d 1867. The plaintiff gave evidence in rebuttal tending to show that he had pecuniary ability to lend the amount mentioned in the note; accounting for the delay in not presenting the note and in bringing suit. To the notes of testimony was appended the following: “ All the foregoing testimony was received by the court under the first bill of exception, with the same effect as if a special bill of exception had been taken and allowed to eadh offer of testimony. A. B. Longaker, Presiding Judge, [n. s.] ” The plaintiff’s points were:— 1. Under all the evidence in the case the verdict must be for the plaintiff. 2. The evidence given on the part of the defendant constitutes no defence to the plaintiff’s claim. 3. The jury cannot legitimately infer from the evidence given on the part of the defendant that there was no consideration for the note in suit. These points were denied. 4. The execution of the note by Christian Shaffer and its possession by the plaintiff is primá, facie evidence of a consideration, and that there is no evidence in the cause showing want of consideration. The answer was: — The first part of this point is true and affirmed, but the question of want of consideration is a fact for the jury. The defendant’s 4th point which was affirmed was:— If the jury believe that the plaintiff has failed to-prove a consideration for the note in suit, such failure is a circumstance which the jury may consider in determining whether there was an actual consideration. The verdict was for the defendant. The plaintiff removed the record to the Supreme Court by writ of error. He specified 10 errors to the admission of evidence all assigned in the same manner. The 1st was:— “ The court erred in permitting the defendant to prove that the plaintiff had given mortgages in 1829 for $1000, in 1835 for $1400, in 1844 for $1200, and in 1864 for $500.” Four other assignments were to the answers of the court to the plaintiff’s points. The 15th was the answer to the defendant’s 4th point. A promissory note is conclusive evidence of a pecuniary consideration: Edwards on Bills 78, 3111; Hughes v. Wheeler, 8 Cowen 77; Goshen Turnpike Co. v. Hurtin, 9 Johns. 217; Bank of Troy v. Topping, 13 Wend. 569. When the execution was proved and the note given in evidence, the plaintiff was not required to make any further proof until the consideration of the note was impeached by the defendant: Knight v. Pugh, 4 W. & S. 447; Swain v. Ettling, 8 Casey 491; Maples v. Browne, 12 Wright 462. The execution of a note raises only a primd facie presumption, liable to be rebutted: Swain v. Ettling, 8 Casey 491; Byles on Bills 92; Stauffer v. Young, 3 Wright 455; United States v. Price, 2 W. C. C. R. 460.
71 Pa. 317Barrett's Executor's Appeal (1872)
1. An assignee for the benefit of creditors, alleging that a judgment of a creditor hid been discharged, obtained an issue to determine the fact; all proceedings to stay, &c. — the jury found for the creditor; a motion for a new trial was made and held under advisement till the assignee’s account should be settled, which being done it was referred to an auditor. The creditor appeared before him claiming the full amount of his judgment, and insisting on his legal rights. The report of the auditor was referred back to him; the creditor appeared again protesting against evidence being heard against the judgment and claiming its allowance. Held, not to be a waiver of his right to have the facts decided in the issue. 2. The creditor was not bound to demand a new issue, one having been decided in his favor. 3. It seems that the assignee was precluded from a hearing before an auditor until the issue had been finally determined, and that the court below could not allow him to withdraw the issue without the consent of the creditor.
71 Pa. 324Godshalk v. Northampton County (1872)
1. County auditors filed in the prothonotary’s office a statement of indebtedness of the sheriff and other persons to the county; the sheriff appealed as from a report; an issue was framed on the appeal. He could not after-wards object that it was not an auditor’s report, or to the form of the issue. 2. There is no prescribed form in which the auditor's report shall be made; or the accounts stated or balance shown. 3. Including in the reports of the auditors the accounts of persons not sustaining an official relation to the county, did not vitiate the finding as to those whdse accounts they were authorized to audit. 4. County auditors have power to audit, settle, &c., the accounts of sheriffs, &c., and ascertain the amount of public money received by them, whether they have settled or refuse to produce their accounts. 5. The auditors in 1866 settled the accounts of the commissioners and treasurer of 1865, and allowed them credits for payments in that year to the sheriff; this was conclusive only on the accounts of the officers which were settled, and did not prevent the auditors in 1868 from ascertaining whether the sheriff had been overpaid. 6. An Act of Assembly authorized sheriffs, &c., to collect “ 20 per cent, in addition to the fees allowed by law.” This did not authorize adding 20 per cent, to amount allowed for subsisting prisoners.
71 Pa. 330Metzgar & Gernert's Appeal (1872)
1. "Where land is sold subject to purchase-money and interest due a third person, it is a covenant by the vendee to pay such purchase-money: it need not appear affirmatively that such encumbrance was payable out of the purchase-money. 2. A father conveyed land to a son, subject to a widow’s dower, and by his will directed that the annual interest should be paid to the widow out of his estate. This did not relieve the land from the payment of the principal.
71 Pa. 333Knecht's Appeal (1872)
Appeal from the Orphans’ Court of Northampton county: No. 336, to January Term 1872. In the estate of Christian Knecht, deceased. Christian Knecht died on the 26th day of December 1849, leaving a will dated July 27th 1849, with a codicil dated December 21st in the same year. After directing the payment of his debts he gave to his wife such household furniture as she might choose and other chattels; one-half of his dwelling, and out of his real estate in Fork township, grain, &c., yearly during her life. He further provided as follows :— “ Thirdly. I give and devise unto my son, Christian Knecht, Jr., all that certain messuage, &c., in Forks township aforesaid, &c., containing about 122 acres of land, &c., under and subject, nevertheless, to the payment of $7000 in ten equal instalments, without interest until due; the first instalment thereof to be paid one year after the decease of my wife, and the second, two years after her decease, and so on yearly and every year until the full amount of $7000 is paid, and under and subject, nevertheless, to the bequest hereinbefore given to my said wife, out of the said real estate during her natural life. “Fourthly. I give and devise unto my son, Reuben Knecht, all that certain timber lot, &c., in Bushkill township, &c., containing about six acres of land, &c., this I give to my said son Reuben Knecht, without any other consideration than the parental love for the youngest son, and who is in need for a home. “ Fifthly. And as to all the rest and residue of my estate, I give and bequeath in six shares; that is to say, in five equal shares and one-half share.” He gave one full share each to his children, Abraham, Jacob, Reuben, Polly Adams, Rebecca Whitesell, and the half share to his grandson, Josiah Brown. “ My son Christian Knecht, Jr., is not to have a share out of the residuary part of my estate; he is made equal with my other children in the devise of my plantation to him, that is to say, in the consideration he pays for the same.” He appointed his two sons, Christian Knecht, Jr., and Reuben Knecht, executors. By the codicil he provided:— “ Whereas I have in my said will devised all my real estate in Forks township to my son Christian Knecht, Jr., and the consideration-money for the same is made in yearly instalments of $700 each; and whereas it will be necessary that some of the said consideration-money should be paid down cash at the time when the first instalment becomes due, and for the more equalizing my said children and grandchild’s shares. Therefore I order and direct that my said son Christian Knecht, Jr., shall pay at the time when the first instalment is due, in addition of the same, the sum of $2000, and for every year my dear wife Polly may live longer than myself, the further sum of $500, in addition of the said $2000, and the whole sum thereof shall be deducted out of the latter instalments, and the former or first instalments shall be paid as directed in my said last will and testament hereunto annexed, — mentioned. ’ ’ The will was proved January 14th 1850, and letters testamentary granted to Christian and Reuben, the executors named in it. Christian also accepted the devise of the farm. Reuben took no part in the settlement of the estate. On the 18th of February 1851, Christian filed an account, charging himself with $851 personal estate; his credits were $2954.13, showing in his favor a balance of $2103.13. This account was confirmed absolutely, August 1851. He filed a final account November 19th 1861; in that his debits were $126.37, and his credits $135.38, showing in his favor a balance of $9.01. The widow died March 15th 1868. On the 14th of May 1869 the residuary legatees presented a petition to the Orphans’ Court, setting out the devise to Christian, &c., averring that the legacy of $7000 had become due, and praying for a decree against him for its payment. Christian, by his answer, denied the jurisdiction of the Orphans’ Court in this form of proceeding; denied that the petitioners were the proper parties; averred the $7000 constituted part of the residue “which had been bequeathed to the claimants, and had been-expended by him as executor, in the payment of the just debts of the decedent, and costs and expenses in settling said estate; and' that for such expenditures in excess of his receipts, derived from sources other than the said consideration-money, together with interest from the time of payment, he further claimed that the several legatees and devisees abate proportionally accdrding t©> the value of said devises, on the 26th of December, 1849, tlm day of the death of the testator, or on some other basis of value in conformity with law and equity, or'that the said residuary legatees alone should abate for the same.” The matter was referred to,,W. W. Schuyler, Esq., as auditor, to report the facts and state an account. ' He reported the foregoing facts, and also found that at the time of the testator’s death this farm was worth about $10,000 ; at the death of the widow, owing to the general increase in value, it was worth about $20,000. He further said that the respondent interposed two objections:— 1. That the money claimed was not a “ legacy charged upon or payable out of real estate,” under the Act of February 24th 1834, sect. 59, Pamph. L. 84, 1 Br. Purd. 450, pi. 222. 2. If it were such a legacy, there can be no recovery in the present proceeding, because of the nonjoinder of the executors as defendants. “The first of these propositions was that the $7000 is not a legacy at all, no person being designated to whom the money should be paid. * * * “ It cannot be denied that the bequest to the petitioners is in form''residuary, and that the terms in which it is expressed are broad enough to include an infinite variety of objects; but in the interpretation of wills the language of the testator is always to be read in the light of extrinsic circumstances. “ One of these circumstances in the present case is the important fact, that after the payment of debts, and after deducting the bequests to the widow, and the devises of his two sons, there was nothing of the estate left but this consideration-money, and only a portion of that. It is to be presumed that the testator knew .this fact, and that his personal property, not bequeathed to the widow, would be more than exhausted in the payment of his debts. Knowing this, he knew more, to wit: that whatever the form of ¡the bequest to the petitioners, they could take only the consideration-money, as that was all he had left to give, and knowing this, it is a necessary inference that he so intended it. * * * “ Another reason for holding that the testator, in bequeathing the rest and residue of hrs estate to the petitioners, had especial reference to the consideration-money, will be found in the fact that in the codicil he refers to this money by name, and directs it to be paid in a different manner from that provided in the will ‘ for the more equalizing his said children and grandchild’s shares.’ This purpose could be effectuated only by -paying the money to the petitioners, and the inference is a fair and reasonable one, that the testator so intended it. “ The second proposition of the respondent is, that the consideration-money, though it should be held to be a legacy to the petitioners, is not expressly made a charge upon or payable out of the real estate. It is true that the testator does not in so many words charge this money upon the land, or say that it should be paid out of the land. But this is not necessary. All the authorities agree that it is sufficient, if the intention to charge the land appear under any form of expression; and such being the law, it is difficult to conceive of language more evincive of such an intention, than that used in connection with this devise. The testator devises the farm to Christian, ‘under and subject to the payment of $7000.’ * * * It follows from the above, in the auditor’s opinion, that the testator intended to charge the $7000 on the farm devised to Christian, and that he further intended to give this money to the petitioners as a legacy. “ The second objection of the respondents to the form of the present proceeding, even if well founded, would present a proper case for amendment by the court, and the auditor would be justified in treating the amendment as already made. But is the objection well founded ? The act does not direct that the executors should be made parties to the proceeding. It only requires that they should have notice given them, which may be done without making them parties; and such seems to be the interpretation of the Supreme Court. * * * “ The requirement respecting notice to the executors has substantially been complied with. One of the executors is a complainant in the bill, apd the other is the defendant. It is true they do not appear as parties in their capacity as executors, but this is not at all necessary to affect them with knowledge of the proceeding. All the act requires is that the court should cause due notice to be given to them, without being nice as to the capacity in which it is received, or the manner in which the information is communicated. “ Both parties agree that the whole of the $7000 consideration-money became due and payable after one year from the death of the widow, to wit, March 15th 1869 ; but the respondent claims to offset against this sum the balance in his favor as executor, as exhibited in the accounts filed by him. He also claims interest on these balances, as follows: on $2103.14, the balance of the first account, from February 18th 1851; and on $9.01, the balance of the second account, from November 19th 1868. The petitioners deny that he is entitled to any offset on account of these balances. After deducting devises and bequests, including the $7000 consideration-money, the petitioners admit there was a deficiency of assets for the payment of debts of $1855.90; add to this a reasonable sum for the expenses of administration, and we have in round numbers $2000 of claims against the estate, for which no provision whatever is made in the will. * * * “ That the testator, having made his will, should subsequently reflect over its provisions is most natural, and it would not be strange, if at such a time, the thought should present itself, or a passing creditor might suggest it, that the margin he had left for the payment of his debts was entirely too small. As a further warrant for assuming this to be the true state of the present case, we have the fact that this assumption furnishes a key to the interpretation of a portion of the codicil, which cannot be satisfactorily explained upon any other theory. * * * “ Holding, therefore, that the testator in his codicil appropriates $2000 of the consideration-money to the payment of debts, which had been overlooked by him when he made his will, it follows that the respondent should have charged himself with these $2000 in his first account, which would have reduced the balance of that account in his favor to $103.14. It also follows that he' has no legal right to interest on the $2000, .and indeed no legal right to offset the principal sum even. The truth is, that this entire controversy respecting the balances of the two accounts, will have to be determined, not upon legal, but upon equitable principles. It is not a question of set-off, but a question of contribution or abatement. “ Under the will, as between the respondent and each of the petitioners, the respondent takes the lion’s share. Had the codicil taken from the petitioners $2000 out of their legacy, with which to pay debts, without more, it would probably have worked a revocation of the legacy pro tanto to their increased relative disadvantage. But one of the avowed purposes of the testator in making the codicil is ‘ the more equalizing of his children and grandchild’s shares,” and to this end he quickens the times for paying the instalments of the consideration-money. This, however, would be as a feather in the scale, when weighed against the loss of the $2000 ; so that the reasonable inference is, that the testator did not intend to cast the entire burden of paying the $2000 on the petitioners. “ There is nothing in the codicil to indicate how much the petitioners, or how much the respondent should contribute towards the deficiency of assets, and therefore, recourse must be had to the general rule in equity on the subject of marshalling assets. Armstrong’s Appeal, 13 P. E. Smith 312, furnishes the rule, which is, that ‘in marshalling assets for the payment of the debts of a testator, specific devises of land abate proportionably with specific and demonstrative legacies.” There is no difficulty in the rule itself, but in the application of it there is frequently great difficulty, for in that process the authorities furnish no guide, except that the amount of abatement or contribution is to be determined upon equitable principles. “ A proper regard for these principles would dictate one year from the death of the widow, the time when the legacy to the petitioners became due and payable, as a fit time for the abatement to take place. At this time the respondent’s devise was worth $20,000. It cost him $7000, leaving as the net worth of the devise to him $13,000. In answer to the respondent’s claim of interest on the balances of his accounts, wre have the fact that he enjoyed uninterruptedly the possession and yield of this valuable farm, subject only to the rights of the widow, for a period of nearly twenty years, without rent, upon a comparatively trifling investment of a little over $2000, whilst all this time the petitioners derived no benefit whatever from the estate of the testator. Eejecting the claim of interest for this reason, it will leave as the deficiency to be made up, the balances of the executors’ two accounts, to wit: the sum of $2112.15. To make up this deficiency, the devise to the respondent and the legacy to the petitioners, under the rule above stated, must abate proportionably. Taking the net value of the farm to be $13,000, and the value of the legacy at its face, the ratio in which they must abate, will be as thirteen to seven. * * * “ The total deficiency, including expenses, is $2335.40. “ The entire fund which must contribute to make up this deficiency, consists of the valuation-money of the devise to the respondent, and the bequest to the petitioners, and amounts to $20,000, as follows: Devise, $13,000; Bequest, $7000. The proportion of the deficiency, therefore, under the rule above stated, to be paid by the petitioners, is seven-twentieths of the whole amount, or $817.39, and their legacy will have to abate by that amount, leaving a balance due them of $6182-61. This balance became due and payable one year from the death of the widow, March 15th 1868; interest is therefore to be from March 15th 1869 to November 24th 1871, the filing of the report.” Christian Knecht filed exceptions to the report of the auditor. The court allowed the record to be amended by permitting “the executors to become parties.” In deciding on the exceptions, the court (Longaker, P. J.) said, in his opinion : — • “ The exceptant contends that the legacies to the petitioners are residuary and general, and that the devise to him is specific; and therefore the residuary fund is liable for the payment of the testator’s debts. * * * “ On the one hand, the devisee contends that the debts are to be paid out of the valuation-money, and on the other, the legatees contend that their legacies are at least demonstrative, and perhaps specific, so far as the valuation-fund is concerned, and payable only directly to them; and as the creditors could have enforced the payment of their claims against the real estate, the devisee would be compelled to pay, in order to enjoy and hold the estate devised. The construction contended for by the devisee, therefore, cannot be adopted, because it is so at variance with the expressed intent of the testator (to make an equal distribution of his estate amongst his six children, and a half share to his grandchild), that it cannot prevail. * * * “ It is the plain duty of the court so to construe a will that the intent of the testator shall take effect, and where the beneficiaries are his children, in such manner as each shall receive an equal share; and especially is this so when the manifest, intent is an equal disposition. * * * To carry out, therefore, the manifest intent of the testator, so as to make an equal distribution amongst his children, the legacies must be construed to be demonstrative, that is, to be paid specifically out of the valuation-money of the $7000, and being demonstrative, the rule of law is, that they and the devisee must abate pro rata in accordance with the ascertained valuation of each. It is contended by the legatees, that in the event the fund of $7000 is held to be a specific sum for the payment of the legacies, then the only way in which the creditors could secure payment is by obtaining a lien upon the realty; and that the devisee having paid the debts, can acquire no rights superior to those possessed by the creditors, and as no lien has been secured, the respondent can have no claim for payment in this distribution. This undoubtedly is the rule of law; where the executors are not to collect the proceeds of the real estate, and the right of the respondent to payment, if tenable at all, must stand upon some other ground than that the land devised could have been made chargeable for the testator’s debts. * * * The valuation-money being in the hands of the executors for distribution in the Orphans’ Court, the Statute of Limitations does not operate to bar the claim. As all the parties are now in the Orphans’ Court, I take it that in this proceeding there may be a distribution of the fund, with like force and effect, as if an account had been filed with the register, and certified to the Orphans’ Court. “ The respondent’s claim for debts paid should not carry interest until interest is chargeable upon the fund, because the devisee has had full enjoyment of the land, subject to the life-estate of the widow. The land, or a sufficient portion thereof, could have been sold for the payment of the debts, and that portion of it which it would have been necessary to sell remaining unsold, and having been actually enjoyed by the respondent, he cannot, by any principle of law or equity, claim interest. “ The auditor’s marshalling of the assets is adopted.” * * * The report of the auditor was confirmed, except so far as to require an abatement on Reuben’s devise, which was computed at $280. The exceptant appealed, and assigned the decree of the Orphans’ Court for error. A residuary legacy is a bequest of a testator’s estate not otherwise effectually disposed of by will: 2 Bouvier’s Law Dict. 17; 2 Williams on Executors 1310; Witman v. Norton, 6 Binney 396; Hassanclever v. Tucker, 2 Id. 531. The real estate devised to Christian Knecht, Jr., at a fixed price, and the acceptance by him, operated as a conversion of the same, into personalty to the extent of said price: Chew v. Nicklin, 9 Wright 84; Patterson v. Swallow, 8 Id. 491; Anewalt’s Appeal, 6 Id. 416; Boshart v. Evans, 5 Wharton 561. In the present case there was an absolute devise to Christian Knecht, Jr., at a valuation and acceptance, depending on no contingency, and the devisee having actually accepted it, such acceptance, eo instante, operated as a conversion. A residuary legatee can demand contribution for nothing : McGlaughlin v. McGlaughlin, 12 Harris 20; McCracken’s Est., 5 Casey 426; 2 Williams on Ex’rs 1224. The executors had the right to demand and receive tfie consideration-money of real estate devised, which falls in the residuum of the estate: Hart v. Homiller, 8 Harris 249. There are legacies of quantity in the nature of specific legacies, as of so much money with reference to a- particular fund of payment. These are demonstrative legacies: 2 Williams on Ex’rs 1042,1048,1051 ; Armstrong’s Appeal, 13 P. F. Smith 316. The statute does not run in the Orphans’ Court for distribution: McCandless’s Est., 11 P. F. Smith 9; Micheltree v. Veach, 7 Casey 455; Alexander v. McMurry, 8 Watts 504. The will nowhere declares that the $7000, or any of it, shall be applied to the payment of debts. The first clause of the will directs “ that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be after my decease.” By this clause the testator establishes an event, to wit: His own death, for the computation of the time within which his debts are to be paid; not after his widow’s death, nor their joint deaths, but after his own death alone. But the $7000 are not to be paid until the death of the widow. It not only cannot be inferred, therefore, that the testator intended the $7000 as assets for the payment of debts, but it must necessarily be inferred that he could not have had such a thought. The source from which the $7000 are to come is to be held intact so far as the testator’s contemplation is concerned during all this time. It must be inferred that this testator supposed that his personal estate would suffice to pay his debts, and leave a surplus besides, and to have made his testamentary provisions in accordance with that idea: Miller’s Appeal, 10 P. F. Smith 404. It was the testator’s intention to make his other children as nearly equal with Christian as possible considering the valuable devise made to the latter. To make them exactly equal would of course be impossible, for at any rate of valuation, even the lowest, of $10,000, Christian would get $3000 and the other six would get but the $7000 between them, less than $1300 to a share. Rut to hold that the $7000 must pay the debts exclusively, would of course very greatly increase the inequality in Christian’s favor, and against the other legatees. The general idea of equality among all the children is the leading sentiment. Christian is declared to be made equal with the rest. Rut how are they to be equalized ? In the testator’s contemplation, it is “ in the consideration he pays for the same,” i. e. in the money that Christian was to pay for the land. Rut if the land was to be the equalizing feature as against the consideration-money, it would of course be necessary that if Christian got the land, his brothers and sisters should have the considerat'ión-money. It is payment of the consideration-money by Christian that the testator considered would equalize him with the others. Rut that could only be possible by the payment to them. The payment by Christian to himself as executor, would not have that effect, and certainly this would be so, if being paid to himself it was to be applied to the payment of debts to which Christian was to make no contribution. . Was the intent of the testator that the legatees other than Christian should take this particular fund? if he did, the legacy is either demonstrative or specific according as we view the character of the fund itself. Whether as being a portion of the whole valuation of the farm and a sum payable therefrom, or as a gross sum of money specifically payable by itself as a condition, or in consideration of the devise. Rut in neither nor in any event can the codicil be regarded as disposing of the residue, distinctively such: 2 Redfield on Wills 472; Hoover v. Hoover, 5 Rarr 351. The law so interprets wills, in cases of doubt, as that equality of distribution shall take place: Amelia Smith’s Appeal, 11 Harris 9; Weber’s Appeal, 5 Id. 474; Weaver’s Appeal, 13 P. F. Smith 311; Green v. Moore, 1 Stewart and Porter 212; Horwitz v. Norris, 10 P. F. Smith 287; Marshall’s Appeal, 2 Rarr 388; Hennershotz’s Est., 4 Harris 435; Hallowell’s Est., Teas’s Appeal, 11 Id. 223 Loomis’s Appeal, 10 Rarr 387. Christian Knecht’s position is that of one of several beneficiaries of a testator’s bounty. He is a specific devisee of land. His brothers and sisters are residuary legatees it is true, but they are also by the manifest intent of the testator specific or demonstrative legatees of'a sum of money to be paid by him. When, after old Christian Knecht’s death, claims were presented to an amount greater than the personal estate, he had a right, and it was his duty, to sell under the order of the Orphans’ Court so much of the farm as was necessary to pay the claims. Having done this he could assert to us that he had been deprived of a portion of his devise, and as the devise was by that much diminished in value, he could ask an abatement in the amount of the money charge, which by the will he was required to pay to us. ' General and specific legatees abate between themselves according to the value of their legacies, at the end of the year from the testator’s death, this being the time at which legacies are payable, unless any other time of payment be mentioned ; and if a different time be appointed for payment, then the value of their respective legacies must be calculated from such time of payment: Preston on Legacies 360. The farm was not devised to Christian at a fixed value at all, but only subject to a charge. When the testator excluded Christian from the residue he assigned as a reason that Christian was already made equal with the others in the devise of the land, in the consideration-money he was to pay for it.
71 Pa. 346Weiler v. Coleman (1872)
1. Under the Act of April 10th 1862, for the protection of logs on the Susquehanna, evidence that the stamps were those of a plaintiff in replevin, regularly registered, is not essential to prove that the logs were his property. 2. That the plaintiff was engaged in lumbering on a tributary of the West Branch of the Susquehanna, that the logs were stamped with his mark, that no other logs had been known to be so stamped, and no other person had ever claimed from the boom company logs so stamped, was presumptive evidence that the logs were his. '
71 Pa. 350Pennsylvania Railroad v. Titusville & Pithole Plank Road Co. (1872)
1. Whatever an agent does or says in making a contract is evidence against the principal, being part of the contract. 2. The admissions of an agent not made at the time of the transaction but subsequently, are not evidence. 3. Plank to construct a plank road was delivered at a station of a railroad, to be transported to another station ; the company did not transport it; if liable in damages, the measure would be the difference of value of the plank at the first station and the station to which it was to be carried, deducting cost of transportation ; provided such lumber could be obtained at the latter station and that the carrier should compensate for the delay from his failure. 4. The increased expenses of putting down the plank in consequence of the delay is too remote. 5. The measure is compensation : such damage as might reasonably have been anticipated and been within view of the parties. 6. Plaintiffs contracted for the purchase of plank and employed defendants to deliver it at a certain point; in an action for failure to deliver, evidence was admissible for the defence that portable mills could have been erected, plank manufactured and. delivered at the point within the time and at the price plaintiffs were to pay under their contract. 7. It was the duty of the plaintiffs, when they were notified of the inability of the defendants to deliver the lumber, to adopt every feasible means to supply themselves. 8. Hough v. Doyle, 4 Rawle 291, adopted.
71 Pa. 356Keller v. Stoltz (1872)
Error to the Court of Common Pleas of Lycoming county: Of January Term 1871, No. 388. On the 6th of February 1862, George D. Keller brought a,n action on the ease against George Stoltz, and declared that he was possessed of a tract of land, &c., and that the defendant within plaintiff’s close erected a mill-dam across Muncy creek and raised the water above its usual height so as to cause back-water on plaintiff’s land, overflowed and destroyed a fording, &c. The defendant pleaded “ not guilty.” There had been erected on the defendant’s property at a very early day, a mill, the dam of which was across Muncy creek on the plaintiff’s property. The plaintiff alleged that the right of defendant to have the dam there was by prescription and that the defendant in 1861 against the remonstrance of the plaintiff moved the dam further up the stream on the plaintiff’s land, overflowed it, destroyed a fording, &e. The defendant denied the allegations of the defendant, alleging that the new erection was on the ground where the dam originally stood. The cause was tried February 4th 1869, before Gamble, P. J. The parties having closed their case, the plaintiff submitted this point, which raised the only question discussed in the Supreme Court:— “ It appears from all the evidence that the two bulk-heads spoken of by the witnesses, constituted a part of the dam, and were real estate fixtures, and that after the quiet enjoyment by the plaintiff of the right, use and easement of his farm and islaud for a period of 21 years, while the bulk-head was located where it was immediately preceding the building of the new dam by the defendant in 1861, the defendant had no legal right to change the location of the bulk-head to the injury of the plaintiff, and that he had no right to locate the same on the plaintiff’s land, and if he did so change the location the plaintiff is entitled to their verdict.” The court answered:— “We decline to give you all the instruction asked for in this point. We cannot instruct you that the defendant had no right to locate the bulk-head on the plaintiff’s land, and that if he did so change the location the plaintiff is entitled to recover; but say to you as we have done in our general charge, that if the jury believe from the evidence that the defendant and the persons under whom he claims continued to enjoy the water privilege, and occupy the land of the plaintiff, and the persons under whom he claims, upon which the bulk-head is now located, for the purpose of the dam or a race, the mere change of location of the bulk-head was not an abandonment of his right to use that location for the necessary purposes of the full enjoyment of his right. That such change neither increased nor diminished the rights of the defendant to use or occupy the lands of the plaintiff. The importance of the change, therefore, depends wholly upon the inquiry — did it increase the flow of the water upon the lands of the plaintiff, or in any manner produce new injury to the enjoyment of his rights ? If it did, the plaintiff is entitled to recover.” The verdict was for the defendant, and on the removal of the case to the Supreme Court, the plaintiff assigned the answer to this point for error.
71 Pa. 359Ardery v. Rowles (1872)
Error to the Court of Common Pleas of Olearfield county: No. 14, to January Term 1871. This was an action of ejectment commenced September 12th 1859, by Elisha Ardery against John Bowles and George Bowles, for 90 acres of land, bounded east by land of James Dougherty, west by lands of John Dougherty, north and south by lands of the plaintiff, “ the whole being west of Little Clearfield creek, and the south-east corner of said land coming to or very near said creek.” Both the defendants having died after the commencement of the suit, Taylor Bowles and others, their devisees and heirs, were substituted. The case was tried May 29th 1869, before Mayer, P. J. The plaintiff showed a complete paper title in himself for 397 acres of land, including the parts in controversy, and rested. The defendants defended on a parol sale in 1840 by the plaintiff to John Bowles of the land in dispute, the principal question being one boundary and the extent of land included in the sale. They gave evidence by John Dougherty that the plaintiff and John Rowles called witness into the plaintiff’s field “ to witness a bargain between them about 90 acres of land; they told me that Rowles had bought the 90 acres at $3.50 per acre. It was to start at the corner of James Dougherty’s buckwheat field and be laid off from that field to the creek; it was said in this conversation that the land was to go to the creek.” James Dougherty’s land would be on the east, plaintiff’s on the north and witness’s on the west. John and George Rowles went on the land that fall; cleared some land; built a house and barn, and lived there till their death; when in possession they claimed to the creek; most of the woodland of the 90 acres was on the creek. They used no timber along the creek. The defendants gave in evidence two judgments in plaintiff’s favor, entered May 10th 1843, against John and George Rowles; on two notes dated April 1st 1840, for $157.50 each, one payable April 1st 1841, on which $75 had been paid October 1st 1841, and the other payable April 1st 1842. On the last a fi. fa. had been issued and a levy made June 16th 1843, on personal property of the defendants, and “also on 90 acres of land in Lawrence township, bounded north by Elisha Ardery, west by John Dougherty, north-east by James Dougherty; supposed to extend to Little Clearfield Creek. The improvements are a log-house and 7 acres of cleared land thereon.” There was evidence of admissions by the plaintiff that defendants’ land extended to the creek, and that the plaintiff never occupied the land along the creek after they went into 'possession. There was evidence also of other payments by the defendants and generally in corroboration of the defendants’ claim. There was evidence for the plaintiff that the lines to which the defendants claimed would include 117 acres. There was no dispute about the east and west lines; the point of dispute was whether the land sold reached to the creek. The court after recapitulating the evidence charged:— * * * “ Does the evidence satisfy the jury, clearly and fully, what the contract was between Ardery and Rowles, its terms and conditions, what land was sold, what were the boundaries, the price paid or to be paid and when payable, that possession was delivered under the contract ? The boundaries of the land must be designated with sufficient clearness, so that it could be run off upon the ground with reasonable accuracy and certainty. Satisfactory proof must be furnished by the defendants of all the circumstances which we have mentioned, before a parol sale can be established, sufficient to authorize a court and jury to disregard the plain and imperative requirements of the statute. “ Eor, as we have already said, the burden of the proof being thrown on the defendants, if, after an examination of the evidence, you have any doubts as to any of the circumstances upon which they rely to establish their parol sale and take their case out of the Statute of Frauds and Perjuries, your verdict must be for the plaintiff. If, however, after a careful consideration of all the evidence in the cause, your minds are fully and clearly satisfied that the defendants have made out such a parol sale as the law requires, it will then be the duty of the jury to ascertain and determine where is the southern boundary of the land that was bought by John Rowles from the plaintiff. The plaintiff contends that the defendants must be limited in their claim to 90 acres of land out from the upper line extending towards the creek. The defendants claim that the creek was fixed by the parties as one of the boundaries when the bargain was made. [If, when the bargain was made between Ardery and Rowles, it was agreed and understood between them that the land bought was to extend to the creek and the creek to be the boundary, then defendants’ claim would extend to the creek, and if there was an excess over and above the 90 acres, the defendants must pay for the excess at the price agreed upon per acre.] But if the bargain was that defendants were to ¡start at the upper line and run towards the creek so as to make but 90 acres, then defendants cannot extend their claim further towards the creek than to make the 90 acres. As we have before said to you, the proof as to the boundaries must be clear, distinct and satisfactory, and if it is a doubtful question whether defendants’ southern boundary is the creek, it must be determined against them, and defendants must be limited in their claim to the 90 acres laid out from the upper line.” * * * The verdict was:— “ The jury say they find for the plaintiff the land described in the draft hereto annexed (as claimed by defendants), to be released on the payment by the defendants of the sum of $505.56 ; one-half in six months and the balance in one year from date with interest; and that plaintiff shall not have execution until he file in court a deed for said land and cause to be satisfied of record the two judgments entered on record Nos. 63 and 64, to May Term 1843.” The plaintiff took a writ of error, and assigned "the portion of the charge in brackets for error.
71 Pa. 362Barber v. Rodgers (1872)
Error to the Court of Common Pleas of Warren county: No. 432, of January Term 1871. This was an action of debt commenced, March 18th 1869, by L. A. Rogers against Richard A. Barber, J. H. Mitchell and Myron Waters, on a bond, executed May 14th 1867, by Barber, with the other defendants as his sureties, to L. A. Rogers in the sum of $3000, with condition that Rogers should appear at the next Court of Common Pleas of the county of Warren, and present his petition for the benefit of the insolvent laws of the Commonwealth, or in default thereof and on failure to obtain his discharge, that he should surrender himself to the jail of the county. The defendant, Barber, was arrested on the 4th of May 1867, by virtue of warrant under the Act of July 12th 1842, Pamph. L. 339, 1 Bright. Purd. 50, pi. 52 et se'q., and, after having entered into the above bond, was discharged from custody. On the 4th of June, Barber presented his petition for discharge as an insolvent; the first Monday in September was fixed for a hearing. On that day the hearing was continued until the second Monday of December. , On the 21st of November, Barber petitioned the District Court of the United States for his discharge as a bankrupt; he was adjudged a bankrupt November 23d. On the 7th of December the hearing on his insolvent petition was continued in the Common Pleas until January 1868, and then until March; his discharge was refused March 10th, and he was bound over to the Quarter Sessions. On the 8th of April an assignee in bankruptcy was appointed in the District Court of the United States. At the June Term of the Quarter Sessions a true bill for fraudulent insolvency was found against Barber. On the 9th of September he was found guilty in the Quarter Sessions, and on the 24th of December judgment was arrested. On the 8th of September 1869 he was discharged by the District- Court as a bankrupt; he was not discharged by the state court in accordance with the condition of his bond. These facts were given in evidence on the trial, March 16th 1871, at a special court before Williams, J., of the 4th district. The defendants requested the court to charge:— 1. That the Act of Congress passed the 2d day of March 1867, suspended the insolvent laws of the state of Pennsylvania from the date of its passage. 2. That the Bankrupt Act of 1867 took effect on the 1st day of June 1867, and from that date all proceedings in the state courts to effect any of the objects provided for in the Bankrupt Act were of no effect. 3. That up to the time that Richard Barber applied for the Bankrupt Act, to wit: on the 27th day of November 1867, there was no breach of the bond shown, and that the jurisdiction then attached, and all further proceedings in the state court were suspended, and the plaintiffs cannot recover. 4. That, on the 8th day of March 1869 there was no breach of the insolvent bond, even in the state court, shown, and therefore the plaintiffs cannot recover. The court instructed the jury pro forma “that plaintiff was entitled to their verdict, and the points submitted by the defendants’ counsel wer-e answered in the negative. The verdict was for the plaintiff for $2015.91. The defendants took a writ of error, and assigned for error, the denial of their points, and the instruction of the court. When the state insolvent laws and the United States bankrupt laws act on the same case, the bankrupt laws are paramount: Martin v. Berry, 2 Bank. Reg. 188; Van Nostrand v. Carr, Id. 154. After the bankrupt laws took effect, all proceedings commenced under the state laws were void: Commonwealth v. O’Hara, 1 Bank. Reg. 19; Rany v. Langley, 1 Id. 155; Rump on Bankruptcy 273; Nesbit v. Greaves, 6 W. & S. 120. The state court could finish a proceeding commenced: Ogden v. Saunders, 12 Wheat. 213; Eames’s Case, 2 Story’s R. 325; Hilliard on Bankruptcy, sect. 27; Crabbe 493, 525; Ward v. Proctor, 7 Metc. 321; Judd v. Ives, 4 Id. 401; McGovern v. Hoesback, 3 P. F. Smith 179; Power v. Graydon, Id. 198.
71 Pa. 365McClintock's Appeal (1872)
Appeal from the Orphans’ Court of Lycoming county: No.'82, to July Term 1872. In the matter of the account of Lafayette McClintock, administrator, &e., of John Strawbridge, deceased. On the 13th of May 1865, Strawbridge conveyed to McClintock a tract of 130 acres of land; in the conveyance was this reservation : “ The party of the first part doth hereby reserve all the pine and hemlock timber, also the mineral that may be found on said premises, to his own use and advantage. The said Lafayette McClintock, in case he should want to clear any part of the land, the owner of said timber is to take it off by being notified thirty days previous.” Strawbridge died October 5th 1866, and on the 12th of March 1867, administration of his estate was granted to McClintock; the inventory amounted to $150.72. In answer to a citation McClintock filed an administration account March 17th 1870. Pie charged himself with $262.50, which included the amount of the inventory; his credits amounted to $487.09, of which one item was $310 for funeral expenses and attendance of decedent in his last sickness, $6 costs of citation, and compensation as administrator $50. The distributees filed the following, amongst other exceptions to the account:— That the accountant had not charged himself with the timber reserved; that he should not be allowed credit for attendance on deced.ent and funeral expenses; for compensation or for costs of citation. The account and exceptions were referred to Charles K. Greddes, Esq., as auditor. The auditor charged the accountant with $1029.50 on account of the timber reserved under the deed; reduced his credits for attendance, &c., on deceased, costs of citation and compensation, making the whole amount of credits $336.09, and charged him with the costs of the audit, $92.64.* He decided that the reserved timber was personal estate. The Orphans’ Court (Gamble, P. J.) confirmed the auditor’s report. The administrator appealed to the Supreme Court and assigned for error:— 1. Deciding that the growing timber reservation in deed from John Strawbridge to L. McClintock, was personal property, and in charging accountant with the money value thereof. 2. Charging the administrator with the costs of the audit. The reservation not being to the grantor’s heirs was but for life: Lytle v. Lytle, 10 Watts 259. A right to growing timber is real estate: Yeakle v. Jacob, 9 Casey 376; Huff v. McCauley, 3 P. F. Smith 206; Pattison’s Appeal, 11 Id. 294; Caldwell v. Fulton, 7 Casey 484. If the sale contemplates a severance of the trees from the land, it is a chattel interest only which passes: Whitmarsh v. Walker, 1 Met. 313; Nettleton v. Sikes, 8 Id. 34; 2 Parsons on Cont. 312, 313: Rogers v. Gilinger, 6 Casey 187; 3 Bacon’s Abr. 64, Executors and Administrators; 1 Williams on Executors 491, 492; Stukely v. Butler, Hob. 173; Wentworth on Executors 148; Herlakenden’s Case, 4 Rep. 63 b; Whitaker v. Brown, 10 Wright 197. As to charging accountant with costs they cited Sterrett’s Appeal, 2 Penna. R. 419.
71 Pa. 368Gray v. Henderson (1872)
6, to January Term 1872. This was an action of ejectment, brought September 12th 1868, by M. A. Henderson and Margaret his wife in her right, and S. S. Sheddon and Mary B. his wife in her right, against Hiram T. Gray,- for the undivided half of a lot of two acres of land in Allison township. The lot in controversy belonged to Alexander Boyd, who died about June 1845. Mrs. Henderson and Mrs. Sheddon are two of his four children.
71 Pa. 371Moreland Township v. Davidson Township (1872)
153, to January Term 1872. The proceedings commenced by an order of two justices of the peace of Sullivan county, issued in March 1870, directing the removal of Anna Sperry, a pauper, from Davidson township, Sullivan county, to Moreland township, Lycoming county ; Moreland township appealed from the order to the Quarter Sessions of Sullivan county.
71 Pa. 378Reed's Appeal (1872)
Appeal from the decree of the Court of Common Pleas of Warren county:' Of January Term 1872, No. 287. In the matter of the distribution of the proceeds of the sheriff’s sale of the real estate of William L. Tamblyn. On the 2d of August 1869, Boon Mead issued a foreign attachment out of the Court of Common Pleas of Warren county, against Tamblyn, under which his real estate was attached on the 4th of the same month. On the 9th of the same August a judgment was entered in the same court against Tamblyn for $4320, in favor of Dwight Reed. On the 14th of March 1870, judgment was obtained, in the foreign attachment against Tamblyn for $880.26. Subsequently to March Term 1870, the real estate attached in the foreign attachment was sold under Reed’s judgment at sheriff’s sale for $1200, and that sum brought into court for distribution. Mead then presented a petition setting forth the foregoing facts and averring that on the 2d of August, when the attachment was issued, Tamblyn was not a resident within the state of Pennsylvania, and praying that his judgment should be first paid out of the fund in court. Reed answered the petition denying that when the attachment issued Tamblyn was a non-resident of Pennsylvania, and averring that he was a resident and an absconding debtor, and his property not the subject of a foreign attachment. On this petition a feigned issue was directed, in which Boon Mead was made plaintiff and Dwight F. Reed defendant, “ to try the question whether the real estate attached by foreign attachment (Boon Mead v. William L. Tamblyn), was liable to process of foreign attachment at the time said writ was issued and served.” The issue was tried December 15th 1871, before Williams, P. J., of the Fourth District. There was evidence for the plaintiff that Tamblyn had been a resident of Wayne county for some years, and left there with his family on the 28th of July 1869, for the purpose of going to San Francisco, but stopped in Chicago, and after having remained a week there, boarding at a hotel, still with the purpose of going further, his wife refused to go further; he then determined to stay in Chicago, rented a house and in about three weeks after-wards went into business in that city. He had no intention to make Chicago his residence until he arrived there. There was evidence for the defendants that Tamblyn had left Wayne county clandestinely for the purpose of avoiding his creditors. • The plaintiff’s points were :— 1. If William L. Tamblyn left the state of Pennsylvania with his family with the intention of making a residence elsewhere and of not returning into the state for the purpose of resuming it here, he ceased to be a resident of Pennsylvania when he left it for that purpose, and his estate was subject to the process of foreign attachment as between an attachment and a subsequent judgment creditor ; although he may not have determined at what particular place he would fix his residence outside the state when he left. 2. As between the parties to this issue the fact as to whether said Tamblyn was or was not heavily indebted is irrelevant, and the defendant not being a domestic attaching-creditor is not in a position to raise the question as to whether the said Tamblyn is an absconding debtor. The court charged :— “We affirm the 1st and 2d points submitted by the plaintiff’s counsel. “We instruct you that if Tamblyn was actually a non-resident at the date of issuing the attachment, i. e., had left the state with the intention to remain away, having his family with him and' not being in the county when the writ issued, it was properly issued so far as the defendant is concerned. The defendant in this issue being a judgment-creditor of Tamblyn stands in the same position. If Tamblyn could not be heard to deny his non-residence under the circumstances disclosed in this case, this judgment-creditor cannot. Residence or non-residence is to be determined not by following the debtor to ascertain if he has actually settled in business elsewhere, but by ascertaining with what intent he leaves his dwelling-place within the Commonwealth, and passes with his family outside her boundaries. If such removal is with the intent to defraud, &c., a domestic attachment would take priority over the foreign attachment, but the presence of the fraudulent intent gives no rights to any one who does base his proceedings upon it. “ To the foregoing instructions defendant’s counsel excepted before verdict and at their request the said instructions were written out and filed.” The verdict on the issue was for plaintiff, and the court decreed “ that the amount of judgment and costs in case of Boon Mead v. W. L. Tamblyn, together with the costs made in this issue, be paid out of money in court.” Reed appealed to the Supreme Court. The errors assigned were to the charge, and the answers of the court to the points ; and to the decree ordering the judgment and costs in Mead v. Tamblyn to be paid out of the money in court. Tamblyn had not lost his residence ; he was the subject not of a foreign but a domestic attachment: Barnet’s Case, 1 Dallas 152; White v. Brown, 1 Wallace C. C. R. 217; Pfoutz v. Comford, 12 Casey 420. A removal from a state with an intention at the time to change the domicil is sufficient to change the residence: Burch v. Taylor, 1 Phila. R. 224; Reed v. Ketch, Id. 105; Serg. on Attachments 63.
71 Pa. 383Coe v. Vogdes (1872)
33, to January Term 1871. On the 29th of January 1870, Hannah E. Vogdes, devisee of John R. Vogdes, commenced an action of covenant against Benjamin Scott, Jr., and John E. Coe, on an agreement by defendants to be responsible for the performance by- Louisa F. Wyman of the stipulations in a lease to her from John R. Vogdes, dated November 15th 1865. Coe only was served.
71 Pa. 386Robinson v. Buck (1872)
169, to July Term 1871. This was an amicable action of ejectment, in which Frederick J. Buck “ on behalf of himself and Fanny S. Buck and Lizzie T. .Buck, minors, as their next friend,” was plaintiff, and John Robinson and William Woódside, “executors and trustees under the last will and testament of Ann Buck, deceased, Mary Shields Dalton and Ellis P. Dalton her husband were defendants.” The case was tried May 16th 1871, before Hare, P. J. The plaintiffs gave evidence that…
71 Pa. 393Marland v. Royal Insurance (1872)
221, to July Term 1871. This was an action of covenant by Edward Marland and John Haley, trading as Marland & Co., against “ The Boyal Insurance Company of Liverpool.” The- declaration was that the defendants, on the 2d of July 1869, executed a policy of insurance to the plaintiffs, by which it was covenanted that the defendants, in consideration of the annual premium of $210 paid by the plaintiffs, would insure the plaintiffs to the extent of $6000 against fire on the…
71 Pa. 398Arundel v. Springer (1872)
1. Under 28th sect, of Act of February 24th 1834, trespass for mesne profits does not abate by the death of the defendant in the ejectment, but survives against his personal representatives. 2. Trespass for mesne profits was brought against two; one paid a certain sum in settlement, and a nol. pros was entered as to him: Held, that did not discharge the other defendant. 3. Bard v. Nevin, 9 Watts 328 ; Ilarker v. Whitaker, 5 Id. 474; Means v. Church, 3 Barr 93, examined and distinguished.
71 Pa. 402Page's Appeal (1872)
1. A bequest was “ to my god-daughter Margaret B. Page §2000, to be paid to her by my executors when she attains twenty-one years, but if she die in her minority the same is to fall into the residue of my estate. Held to be a vested legacy on which interest would not run until the time of payment. 2. When a bequest of a sum of money is made, and time of payment fixed, that determines the precise sum to be paid at the time fixed: except where the law infers an intention to pay interest, from the relation of the testator to the legatee. 3. This inference does not arise from the relation of god-mother and goddaughter. 4. Where a trustee or executors are put in charge of a special fund for a legatee to manage for his benefit, his right to the product of the fund may be inferred from so setting it apart for him. 5. Cooper v. Scott, 12 P. F. Smith 139 ; Laporte v. Bishop, 11 Harris 152, distinguished.
71 Pa. 405Commonwealth ex rel. Winpenny v. Bunn (1872)
Mandamus of January Term 1871, at the relation of Joseph Winpenny against William M. Bunn, register of wills, &c., of Philadelphia. The alternative writ of mandamus was as follows :— “ Whereas, it has been suggested to us that Joseph Winpenny, petitioner, is a brother of A. Jackson Winpenny, deceased, who died on or about the 12th day of November, A. D. 1870; the said Joseph Winpenny, upon the 17th day of November, A. D. 1870, filed a caveat in the office of the register, &c., against the admission to probate of any alleged will of the said A. Jackson Win-penny, deceased; that upon the 3d day of January, A. D. 1871, a paper writing purporting to be the last will of said decedent, was offered for probate before William M. Bunn, Esq., the said register of wills, by J. Bolton Winpenny, one of the persons named in said paper writing as executor thereof; that objections have been made before the said William M. Bunn, register of wills as aforesaid, by the said Joseph Winpenny, petitioner, against the probate of said paper writing; that thereupon proceedings took place before said register, in reference to the probate of said paper writing; that the said J. Bolton Winpenny, through his counsel, Mr. Dolman, produced before the register the three subscribing witnesses to said paper writing, and that said subscribing witnesses or any of them failed to prove the due and legal execution of said paper writing as the last will of said decedent; that failing to make said proof by the said subscribing witnesses, Mr. Dolman called the said J. Bolton Winpenny as a witness to prove the execution of said paper writing as the last will of said decedent; that witnesses were then called by Mr. Dolman to prove the genuineness of the signature of the decedent to said paper writing; that Charles W. Otto, one of said witnesses, called on behalf of the said J. Bolton Winpenny, produced, upon his examination before the register, a certain check upon which a signature was written, and by means of which the said witness testified as to the manner in which the decedent spelled his name; that Thomas R. Garsed and James E. Mitchell, the other two of said last-mentioned witnesses, testified as to the genuineness of the signature of decedent to said paper writing, and both- stated, in their testimony, that the said J. Bolton Winpenny had shown them a short time previously a check upon which the name of A. Jackson Winpenny was written, and the said Thomas R. Garsed stated in his testimony that the said J. Bolton Winpenny had asked him if he could recognise said signature ; that the said Joseph Winpenny, petitioner, had every reason to believe that the said paper writing is not the last will of said decedent, and that it was never signed by said decedent; that upon the 30th day of January, A. D. 1871, the said Joseph Win-penny, through his counsel, made a demand upon the counsel of said J. Bolton Winpenny, for the production of certain checks and an alleged deed upon which the signature of decedent was written; that the said cheeks included, inter alia, the checks referred to or used by the said witnesses on behalf of the said J. Bolton Winpenny, and are material to the determination of the said matter in controversy; that upon the 1st day of February, A. D. 1871, before the said William M. Bunn, register of wills as aforesaid, the said Joseph Winpenny, petitioner, made a further demand for the production of said checks and alleged deed, upon the said J. Bolton Winpenny and his counsel, then and there present ; that both of said demands were refused, and the said J. Bolton Winpenny, through his counsel, refused to produce the said checks and alleged deed; that the said register of wills has no power or authority by law to compel the production of said checks, or alleged deed, nor to compel the attendance of witnesses other than the subscribing witnesses, to a will; that the said Joseph Winpenny, petitioner, being aware that he had no remedy to compel the production of said checks and alleged deed before the said William M. Bunn, register of wills as aforesaid, did, immediately upon the refusal of the said J. Bolton Winpenny to produce said checks and alleged deed, make a request to the said William M. Bunn, register of wills, that he should appoint a Register’s Court for the decision of the said matter in controversy, to wit, the production of the said checks and alleged deed, &c.; that the said request was made under the 25th section of the Act of Assembly of March 15th 1832, relating to Register’s Courts, to wit: “ ‘ Where objections are made, or a caveatis entered against the probate of any last will and testament, and no precept for an issue is directed by the register into the Common Pleas as aforesaid, or where objections are made to the granting of letters of administration to any person applying therefor, or where any question of kindred or other disputable and difficult matter comes into controversy before any register, he shall, at the request of any person interested, appoint a Register’s Court for the decision thereof, to be held at a time certain, and as soon as convenient, at the courthouse or other public place in the respective county, giving convenient notice of the time and place of holding the same, by citation or otherwise, to all concerned, as well to the persons interested as to the judges whose assistance he shall require, and in the meantime he shall do and receive all proper acts preparatory to the business of such court.’ “That the said Joseph Winpenny, petitioner, has no legal or other remedy to compel the production before the register of said checks and alleged deed, except by the appointment of a Register’s Court in pursuance of said section of the Act of Assembly above recited; that the said William M. Bunn, register of wills, has refused the request of said Joseph Winpenny, petitioner, for the appointment of a Register’s Court for the decision of the said matter in controversy ; that the said Joseph Winpenny, petitioner, is entirely without remedy in the premises, unless it be afforded by the interposition of this court, by their writ of mandamus,” &e. The writ was returnable March 4th 1871. The answer of the register was :— “ This respondent, not admitting it to be true as in said petitioner’s petition is alleged, that the subscribing witnesses to the paper writing alleged to be the last will and testament of A. Jackson Winpenny, deceased, or any of them, failed to prove the due and legal execution of said paper, as the last will of said decedent, and as to which the said register has reserved his opinion ; and also averring that the said Joseph Winpenny neither produced nor offered any evidence against the said alleged will, respectfully suggests and submits to -the court that the act of this respondent complained of by the said Joseph Winpenny in his said petition, is a judicial act, and the law provides an ample remedy for any error committed by this respondent in any judicial act; to wit, an appeal to the Register’s Court.” There was no question of fact before the register so as to give him discretion under Act of March 15th 1832, sect. 13, Pamph. L. 138; 1 Br. Purd. 406, pl. 8; Cozzens’s Will, 11 P. F. Smith 196; Wikoff’s Appeal, 3 Harris 289; Baxter’s Appeal, 1 Brewster’s R. 459; Graham's Appeal, 11 P. F. Smith 43. The refusal of the respondent to appoint a Register’s Court is not z, judicial act but a ministerial one: Hood on Executors 38; Sect. 5, Act of March 15th 1832, sect. 25, Pamph. L. 136; 2 Br. Purd. 1255, pl. 20; Cozzens’s Will, 11 P. F. Smith 196. The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions: Minor v. Mechanics’ Bank, 1 Peters (S. C.) 64; Dwarris on Statutes 712; Davison v. Gill, 1 East 64; Supervisors v. United States, 4 Wall. (S. C.) 447; City of Galena v. Amy, 5 Id. (S. C.) 709. A writ of mandamus will lie to compel the performance of a ministerial act by a public officer: Tapping on Mandamus 64; Moses on Mandamus 49; Commonwealth v. Commissioners of Allegheny, 1 Wright 279. When there is a right, and the law has established no specific remedy, this writ should not be denied: St. Lukè’s Church v. Slack, 7 Cushing 226; Moses on Mandamus 18, 42, 48, 49; Tapping on Mandamus 71; Griffith v. Cochran, 5 Binn. 103; Delaney v. Goddin, 12 Gratt. 266; Illinois Central Railroad, 44 Ill. 353; Commonwealth v. Justices of Hampden, 2 Pick. 414.
71 Pa. 413Keller v. Commonwealth (1872)
56, to January Term 1872. On the 2d of March 1871, Jacob Good made complaint before an alderman of the city of Reading against Frederick Keller, that he had deserted Mary Ann his wife, who was the daughter of the complainant, and that Keller left two children, whom he neglected to maintain. The defendant was brought before a justice of the peace of Lancaster county, who bound him over to appear at the Court of Quarter Sessions of Berks county, on the 7th of August then next.
71 Pa. 418Delaware & Hudson Canal Co. v. Loftus (1873)
Writs of error to the Mayor’s Court of Scranton: No. 408 and 409, to January Term 1871. The causes of action in both the cases brought up by these writs of error were precisely similar. They were suits brought by James Loftus against The Managers and Company of the Delaware and Hudson Canal Company, before M. W. Loftus, a justice of the peace.
71 Pa. 422Burger v. Farmers' Mutual Insurance (1872)
1, to May Term 1872. This was an action of debt brought December 9th 186?, by Philip A. Burger against The Farmers’ Mutual Insurance Company of Lancaster County; to recover for loss by fire of the property of plaintiff insured by defendants. The policy on which the plaintiff claimed was issued to Henry Diegle, April 20th 1864, and was on a frame dwelling-house, kitchen and bake-house, frame stable and frame tobacco-shed, altogether valued at $1880.
71 Pa. 425Dellinger's Appeal (1872)
4. In the estate of Jacob Dellinger, deceased. The decedent died about May 1st 1869; he had been married more than forty years previously, to his first wife, who died shortly after their marriage, leaving two children, Mary Ann, afterwards married to Benjamin Wertz, and John Dellinger. Shortly after-wards the decedent married a second wife, Levina, who, with two children whom he had by her, viz., Barbara the wife of James R. Wertz, and Abraham W. Dellinger survived him.
71 Pa. 429Moore v. Weber (1872)
21, to May Term 1872. This was an action on the case commenced, February 18th 1869, by Peter Weber against John Gr. Moore.
71 Pa. 432Dietrich v. Pennsylvania Railroad (1872)
1. A passenger bought a “ Drover’s ticket,” on a railroad, at half the regular price, “ good only in (his) hands, for one seat from Philadelphia to Pittsburg, from March 11th to 16th. He went to Lancaster on the train, got off there, got on another train the next day; a conductor put him off, and afterwards allowed him to proceed ; was put off by another who had afterwards taken charge of the train; at Altoona he entered again, paid his fare to prevent being put off, and proceeded to Pittsburg. Meld, that the face of the ticket did not import a right to stop off, and the passenger had no cause of action against the company for his ejection. 2. One conductor allowing the passenger without right to ride on the train to Altoona, did not give him a right to be carried to Pittsburg. 3. Such tickets are qualified by the rules and regulations of the company in running their trains: provided the rules are reasonable and not contrary to the terms expressed. 4. A purchaser of a ticket must inform himself of the rules governing the transit and conduct of the trains. 5. A .passenger having a “stop-off” ticket cannot require a train to be stopped at a station not on its time table. 6. The burden is not on the company to show that a passenger had notice of their reasonable rules in running trains. 7. A general railroad ticket, which any holder may use within a reasonable time, does not authorize the holder to stop off at intermediate points. 8. “ Good for one seat,” means a seat in the train on which the passenger enters to be carried ; not by different trains or by broken stages. 9. This rule is subject to the exception that a passenger may resume his journey, where by misfortune or accident, not Ins fault, it has been interrupted.
71 Pa. 439Stiles v. Geesey (1872)
Error to the Court of Common Pleas of York county: No. 34, May Term 1872. This was an action of the case, brought to January Term 1869, hy Jacob B. Geesey against Thomas Stiles, for injury by the negligence of the son of the defendant, by which the horse and carriage of the plaintiff were injured. On the 16th of November 1868, the wife of the plaintiff, driving home in a light carriage of her husband’s, stopped at a friend’s house, hitched her horse to a tree in the roadjmposhe the house and went into it. Whilst she was there the son, William Stiles, was driving his team with a loaded wagon along the road, and being some distance from it, the wheel of the wagon caught the wheel of the carriage; in the collision the horse was thrown, broke his leg and had to be killed shortly afterwards. There wasmuch evidence on both sides; the question being mainly whether there had been contributory negligence on the part of Mrs. Geesey. The facts in the case are so fully set out in the opinion of the Supreme Court as to render it unnecessary to make a further statement of them. • The third point of the plaintiff, which was affirmed by the court below (Fisher, P. J.), is as follows: — ■ “ That Thomas Stiles cannot excuse the negligence of William Stiles by showing that the plaintiff’s property was placed where it received the injury by want of ordinary care by Mrs. Geesey, if in the opinion of the jury such want is imputable to her, should the jury believe that William Stiles was chargeable with negligence in leaving his team and permitting it to go along the highway unattended.” The verdict was for the plaintiff for $206.15. The defendant removed the case to the Supreme Court and assigned a number of errors, one of which was the affirmance of the foregoing point. cited Shearman & Redfield on Negligence, sect. 33, 34; Murphy v. Deane, 101 Mass. 455. cited Norristown v. Moyer, 17 P. F. Smith 353; Brown v. Lynn, 7 Casey 510; Shaw v. Reed, 9 W. & S. 72; Davies v. Mann, 10 M. & W. 546; Beach v. Parmeter, 11 Harris 196; Gray v. Scott, 16 P. F. Smith 345.
71 Pa. 442New Holland Turnpike Co. v. Lancaster County (1872)
1. Viewers reported in favor of a bridge, suggesting that a turnpike company should pay one-third the cost: the company agreed to do so ; the report was confirmed and the bridge erected by the county at a cost of $16,500; inspectors reported the bridge well erected, &c., but valued it at $11,000 ; the Court of Quarter Sessions disapproved the report. Held, that the company could not take advantage of that proceeding which was res inter alios acta, but was bound for one-third of the bonfi fide cost of the bridge. 2. The company entered into a bond in the penalty of $4000, to pay one-third of all reasonable and proper expenses in building the bridge.” Held, that the county in covenant could recover one-third of the expenses, although beyond the penalty of the bond. 3. The obligee in such bond may elect to proceed in debt for the penalty, but cannot then go on the covenant; or on the covenant, when he may recover as often as injury arises.
71 Pa. 447Nyman's Appeal (1873)
Appeals from the Court of Common Pleas of Adams county: No. 79 and 80, to May Term: In the distribution of the proceeds of the sheriff’s sale of the real estate of Eli G. Heagy. By the report of A. J. Cover, Esq., the auditor appointed to make the distribution, it appeared as follows:— In 1861, Joseph Harman bought a farm from Ralph Fiekes.
71 Pa. 450Morris v. Ziegler (1872)
Error to the Court of Common Pleas of Perry county: No. 74, to May Term 1872. On the 5th of April 1871, David Ziegler instituted an action of ejectment against Samuel Morris for a tract of land containing 4 acres. Samuel Morris, the defendant, on the 31st of March 1848, owned the premises, and on the 1st of May 1852, conveyed them to his wife. On the 27th of May 1867, Gr. C. Murray entered a judgment for $400 against Morris ; on the 9th of July this judgment was assigned to S. S. Charles, and on the 6th of January 1868, Charles assigned it to Ziegler, the plaintiff. On the 14th of January 1870, the deed from the defendant was recorded. On the 23d of May 1870, Ziegler issued execution on his judgment; the land was condemned, and under a vend. ex. sold to Ziegler and sheriff’s deed acknowledged November 2d 1870. Morris defended on the title of his wife, and the question was the validity of the deed to Mré. Morris as against the judgment of Murray assigned to Ziegler. The cause was tried March 80th 1872, at a special court held by Rowe, J., of the 16th District. The above facts appeared in evidence at the trial. Morris testified that the money with which the property was bought came from his wife’s estate, received by him before 1848; that his wife wished him to convey the land to her and he did so, because he had got the money with which .it was bought; he was a day laborer, but at the time of the sale to her was not in debt. The defendant offered evidence that Charles, had notice of the title of the property being in the wife before'he took the judgment ; it was rejected by the court and a bill of exceptions sealed. The plaintiff testified he bought the judgment from Charles after having had a certificate from the recorder that the title was in Morris, and he had no knowledge that Mrs. Morris was the owner. At the sheriff’s sale plaintiff had notice that the land belonged to Mrs. Morris. The court charged the jury that Mrs. Morris’s title was good, “ unless the deed made by Samuel, her husband, to her was made with intent to defraud and cheat creditors, or unless it was more than a reasonable provision for his wife out of his property. To these two questions you must address yourselves.” The judge further said:— “ I reserve the question of law whether the failure of the wife to record her deed until after the judgment was purchased by the plaintiff — no knowledge of the existence of the deed being traced to the plaintiff — gave to her husband a false credit and was such laches on her part to the misleading of the plaintiff, as will prevent her from setting up her title against the plaintiff. If we should be of opinion that it was such laches, then judgment to be entered for plaintiff non obstante.” The verdict was for the defendant. The court afterwards entered judgment for the plaintiff non obstante veredicto, delivering the following opinion:— “ I am not able, after full consideration, to distinguish this case in principle from that of Coates et al. v. Gerlach, 8 Wright 43. This deed also is void at law, can only be sustained in equity, and the wife asserted no right under it; in fact did not make known its existence until after the husband had contracted the debts, against which she now seeks to set it up; there was no abandonment of possession by the husband, all remained as before; the supineness of the wife gave to the husband a false credit as clearly appears in the evidence; and equity, therefore, will not aid her at the expense of those or him misled by her laches. Consequently, judgment must be entered on the question of law reserved by the court, in favor of the plaintiff, non obstante veredicto, upon his paying the jury fee.” The defendant removed the case to the Supreme Court, and assigned for error the rejection of his offer of evidence and entering judgment for the plaintiff non obstante veredicto. The jury having found that there was no fraud, a judgment-creditor cannot take advantage of the fact that the deed was not recorded: Ridgway v. Underwood, 4 Wash. C. C. R. 129; Gilmore v. N. America Land Company, 1 Peters C. C. R. 460. A judgment-creditor is not within the recording act: Rodgers v. Gibson, 4 Teates 111; Cover v. Black, 1 Barr 493; Heister v. Fortner, 2 Binn. 40; Stewart v. Freeman, 10 Harris 123; Jaques v. Weeks, 7 Watts 284. When the verdict is for the defendant, judgment cannot be entered non obstante veredicto for the plaintiff : Robinson v. Myers, 17 P. F. Smith 9.
71 Pa. 454Patterson v. English (1872)
Error to the Court of Common Pleas of Perry county: No. 29, to May Term 1872. This was a feigned issue, directed by the register of wills, to determine the validity of a paper writing purporting to be the will of Collins E. Patterson, deceased. The parties were Caroline English and David M. Riekabaugh, plaintiffs, and James Patterson, defendant. The issue was framed at August Term 1871. The decedent died January 17th 1871, unmarried and without children, leaving his father the defendant, to survive him. The decedent had been a merchant in Millerstown, Perry county, and in partnership with Riekabaugh, one of the plaintiffs, with whom he lived. The paper offered as his will was found by Rickabaugh on the day after decedent’s death, in his private drawer, in a desk of Rickabaugh’s; was in a small memorandum-book kept by him, entitled “ Merchant’s Account Book and Buyer’s Guide,” published in Philadelphia; containing an Almanac for 1869, rates of postage, public places, &c., advertisements of business-places, &c. The book had 228 pages; it contained also a number of memoranda, made by himself in pencil for purchasing goods, &c. The writing alleged to be a will was under date of January 12th 1871; it was all in pencil with his name at the end, also in pencil. The body of the writing (except the date, about which there was no evidence) was admitted to be in his handwriting, but the testimony as to the signature differed. The writing, as nearly as it can be transcribed, is in the following form:— January 12th 1871. Ann Ereeburn, daughter of Clinton Ereeburn, $1000, to be paid unto Clinton Ereeburn, her father, for education of his daughter. (Erasure.) Eanny Smith, formerly Eanny Meek, $500, to be paid into the hands of her brother Clinton Freeburn, for the use of daughter, and in case she Eanny Smith, formerly Eanny Meek, may come to need to see that she is made comfortable, the interest being all yearly, the daughter may want. [Erasure.) Henrietta Patterson, life policy of C. E. Patterson, No. 10,339, for $5000, and to draw 50 per cent, of $121.50, making $60.75 for 4 years. Total amount, $5243. $5243. Policy to be had and found at Kerr & Co., Altoona, Blair co., Pa. (•Erasure.) Presbyterian Church $500, to be paid to Trustees for repairing church, provided they put basement and complete for Sabbath school all within one year from April 1871, otherwise the $500 to be deposited in the hands of trustees, and interest to be paid annually to the support of the pastor. (Erasure.) -The above is designed to of the pass book,- Caroline English, $1000, for special services given while sick. D. M. Rickabaugh, $1000, for labor and services rendered during sickness. C. E. Patterson. represent two different openings The issue was tried August 9th 1871, before Graham, P. J. The plaintiffs gave evidence that the paper and signature were in the handwriting of the decedent. They then offered “ to read the paper to the jury, and then to prove the declarations of Collins E. Patterson, that he had made his own will, and that again to be followed that he had given his estate, in part or in whole, to the same persons who are by him the said Collins E. Patterson named in said paper as his legatees.” This was objected to by defendant, because, 1. A pencil writing is not a writing within the meaning of the statute, which intends ink writing. 2. It is in a memorandum-book, does not begin, end or purport to be a will; was not published as a will; has no executor or attesting witnesses. 8. Declarations of decedent that he had made a will inadmissible, without identifying the paper, as that referred to by him, nor at all, if before the date. The court admitted the offer, saying :— “ The body of the paper and the signature are proved by several witnesses to be the handwriting of C. E. Patterson. No witness has proved the date of the paper at the head of it to be the handwriting of C. E. Patterson. It appears to be a different handwriting. Under the circumstances we will not limit the proof of the declarations offered to those made after 12th January 1871.” The court sealed a bill of exceptions. The plaintiffs then gave evidence by a number of witnesses, that the decedent, in March 1870, said he was making an arrangement of his property; that he had got his life insured for $1000 for one of John Patterson’s daughters, who was infirm; he was going to leave Rickabaugh something for attending him in sickness; going to leave to Ann Freeborn who was lame, $1000 to educate her; to his aunt Fanny Meek $500; to the Presbyterian church $500, to repair it. On the 9th of January 1871, he said to a witness he wished to make a will; that he had one but wished to make some alterations. In September 1870, one of the witnesses said to him that decedent’s brother John might be expecting something from him; he said “ he need not expect that, because he had his things all fixed, never to be changed while he was on earth, and they will never be any the better of what I’m worth.” He said, his father had never helped him; “ then, why should I give what I have to my father and his family?” There was other evidence of his declarations that he would have nothing to do with his father or his family; also, evidence that the relations between him and his father were not cordial. A witness testified that in May or June 1870, the decedent asked him to write a “skeleton will;” witness said there was no necessity; he would give him Dunlap’s Book of Forms, which he did. Decedent said he was arranging his affairs; none of his estate should go to his father’s family. For the defendant there was evidence that the relations of the decedent with his father were cordial. A witness testified that where the erasures were, he could distinguish “ 0. E. Pat.” Caroline English, plaintiff, testified that a day or two before decedent’s death she saw him burn a paper which “ looked like a folded letter.” The plaintiff’s 1st and 2d points which were affirmed were:— 1. If the jury believe the paper offered in evidence and read to the jury was written by Collins E. Patterson, the alleged testator, in his own proper handwriting, and signed at the end thereof by the said Collins E. Patterson, the fact of the signature and the body of the paper being Avritten in pencil ma/rh, will not prevent it from being established as the will of Collins E. Patterson. 2. If the jury believe that the paper read to the. jury is in the handwriting of Collins E. Patterson, and signed at the end thereof by him, the said Collins E. Patterson, although when he made the same and executed the same by signing his name at the end thereof, he may have intended to put the same in a more usual and general form, but never did put the same in any other form, and adopted the same, and left it, intending that the persons named therein, should be the objects of his bounty, the jury may find that the said paper is .the will of Collins E. Patterson. A number of bills of exceptions to evidence were sealed during the trial. The court charged:— * * * “ The evidence on part of the plaintiffs, to justify a verdict in their favor, must preponderate; it must satisfy your minds reasonably well that the signature is genuine. If you consider the evidence equally balanced your verdict should be for the defendant; for to justify a verdict for plaintiffs, the evidence ought to preponderate in their favor. “ But defendant further contends that even if you should find the signature genuine, that the entries of the pass-book are only incomplete, imperfect and unfinished memoranda, intended after-wards to be made a part of his will to be prepared in proper form. If the entries in the book were made by decedent, and regarded by him as a finished and final disposition of his property, or part of it, without intending to add anything further to it, then it would be a valid will. On the contrary, if decedent intended the writing in his pass-book as memoranda of the disposition of part of his property, but unfinished and incomplete, to which he intended to make further additions before his death, and did not make it as a final disposition of his estate, but as memoranda to be completed afterwards, by further bequests; under these circumstances, the writing would not be valid, as the last will of decedent.” The verdict was for the plaintiffs. The defendant took out a writ of error. He assigned for error the rulings of the court as to evidence and the affirmance of plaintiffs’ points. The Statute of Wills means the writing should be in ink: Act April 8th 1833, sect. 6, Pamph. L. 249, 2 Br. Purd. 1474, pl. 6; 2 Black. Com. 295; Shep. Touch. 50; Co. Litt. 229; Story on Promissory Notes, sect. 11. The decisions in England that pencil wills were valid, are under Statute of Frauds, 29 Charles II., which requires them to be signed in the presence of witnesses. The paper does not purport to be a will: Murry v. Murry, 6 Watts 356; Swinburne 1, sect. 3, pl. 11; Woodward v. Darcy, 1 Plowden 184. —A will in pencil is valid: 1 Redfield on Wills 165, 166; Dyer’s Case, 1 Hagg. 219; Green v. Skipworth, 1 Phill'imore 53; Raymes v. Clarkson, Id. 22 ; Dickenson v. Dickenson, 2 Id. 173; 10 Bacon’s Abr. 490, and cases cited; Merritt v. Clason, 12 Johns. 106; Clason v. Bailey, 14 Id. 491; 3 Parsons on Contr. 8 ; Geary v. Physic, 5 Barn.,& C. 234; McDowell v. Chambers, 1 Strobh. Eq. 347.
71 Pa. 460Brough's Estate (1872)
52, to. May Term 1872. In the distribution of the estate of Peter Brough, of Chambers-burg, assigned to Samuel E. Greenawalt and Jeremiah Diehl, for the benefit of creditors.
71 Pa. 462Coughenour v. Suhre (1872)
1. A note was payable in one day; evidence was inadmissible that the agreement at its execution was that it was to be payable at a later time. 2. Evidence that part of the terms of an agreement was left out of the writing by fraud or mistake, or that matters independent of the writing were ieft unprovided for by it, is admissible. 8. In a joint action against two, there cannot be a recovery against on,e.
71 Pa. 465Bell's Appeal (1872)
1. A testator ordered his land to be sold, but named no one to execute the power. The executor sold without authority from the Orphans’ Court. Held, that the Orphans’ Court had jurisdiction under the 12th seot. of' Act of February 24th 1834, to compel specific performance by the vendee. 2. By the authority to control and direct sales under such powers in a will, the Orphans’ Court has power to set aside or enforce a sale, as the court may deem will best serve the interests of the estate. 3. Specific execution enforced in this case against a vendee in favor of an executor not empowered by a will to sell.
71 Pa. 473Landis v. Lyon (1872)
Error to the Court of Common Pleas of Juniata county: No. 13, to May Term 1872. This was a feigned issue framed, December 9th 1870, “ between Lewis A. Landis, plaintiff, and Jeremiah Lyons and Henry Cross, assignees of Kurtz & Cross, defendants, to try the right of the said plaintiff, under the $300 law, to the money in the hands of Samuel Leonard, administrator of Joseph Kurtz, deceased, attached by the said defendants, under an attachment-execution, No. 17, of February Term 1870.” The issue was tried, April 25th 1871, before Graham, P. J. On the trial it appeared that the defendants, in the issue on the 14th of December 1868, recovered a judgment against Landis for $247.40, on which they issued an attachment-execution, in which Samuel Leonard was garnishee; he admitted that he had in his hands $228 due the defendants. On the return of the answers of the garnishee, Landis presented a petition to the court claiming the $300, and asking an issue. Landis testified that when the sheriff served the attachment on him he claimed the “$300 law ;” Landis said he “did not know that anything (he) had amounted to any amount of money; only a mule he had; he and the mule would not be worth $300;” he stated other articles of property which he valued at about $100. The sheriff testified that when he served the attachment, Landis said, all he had in the world would not amount to $300, and he claimed that under the Exemption Law. Other witnesses testified that Landis owned personal property and land worth about $500. The court charged:— t * * * “ The plaintiff alleges that he claimed the specific property in dispute when the sheriff served the attachment-execution upon him, and followed up his claim by presenting his petition in court when the answer of the garnishee was filed. “[If the plaintiff did claim the money attached when served with the attachment-execution, and acted honestly with the sheriff, and not fraudulently by attempting to' conceal, and denying that he had any other property except a mule, then the plaintiff would be entitled to recover.] [But if the plaintiff did not claim specifically the money attached, but made a general claim for the benefit of the Exemption Act, and that all his property was not worth more than $300, when he in fact owned more than $300, and the sheriff then attached the money in the hands of the garnishee, and the plaintiff owned property or money due to him from solvent debtors to the amount of $300, in addition to the money attached, under these circumstances the plaintiff could not claim the money in the hands of the garnishee, and your verdict should be for the defendants.] [If a specific claim was not made until the answer of the garnishee was filed, and the plaintiff owned $300 in addition to the money attached, it would be too late to claim the property attached after the answer of the garnishee was filed.] [If a defendant owns more than $300 worth of property, and does not claim any specific property, but claims the whole as exempt, the sheriff may execute an attachment on money due to the defendant if he owns property to the amount protected by the Exemption Law, in addition to the money attached.] “ [Again, if the plaintiff acted fraudulently, and endeavored to conceal his property knowingly, which was subject to levy and sale, this would vitiate his claim, for the law will not sanction fraud on the part of a debtor.”] The verdict was for the defendants. The plaintiff took a writ of error, and assigned the charge of the court for error; the specifications being in the order of the portions of the charge included in brackets. Even in an ordinary execution a defendant stating a falsehood does not forfeit his right to the statutory exemption, unless his falsehood hinders or delays the officer: Strouse v. Becker, 2 Wright 190. It is only goods to which a defendant in an execution disclaims title that he cannot have appraised and set apart to him: Grilleland v. Rhoads, 10 Casey 187. A claim by a defendant in an attachment-execution for the exemption, is not too late if made before the plaintiff is subjected to any additional cost in consequence of it: Strouse v. Becker, 8 Wright 206; Bair v. Steinman, 2 P. F. Smith 423. The issue was defective in that it did not state any disputed fact to be tried: Shertzer v. Herr, 7 Harris 34; Christophers v. Selden, 4 Casey 165.
71 Pa. 476Williams v. Baker (1872)
1. By 2d sect, of Act of February 24th 1770, the official certificate is the only evidence that the wife has acknowledged the deed in the statutory form so as to convey her estate. 2. Except in cases of fraud and duress, the official certificate of acknowledgment is conclusive of every material fact on its face. 3. The certificate is conclusive even in cases of fraud, &c., as to subsequent purchasers for a valuable consideration without notice. 4. The certificate is conclusive only of such facts as the magistrate is bound by the statute to certify. 5. The general rule as to certificates given by officers is that a certificate of fact not coupled with matter of law is not evidence. 6. If the officer is bound to record a fact, the proper evidence is a duly authenticated copy of the record. 7. If an officer’s certificate is made evidence of certain facts, he cannot extend its effect to other facts by stating them in it. 8. A wife is not concluded by the certificate of acknowledgment under the Act of 1770, that she was of age : she may show she was a minor when she acknowledged the deed. 9. A minor executed a deed, and during her minority gave an order on the grantee in favor of her husband, for the purchase-money ; the husband received it. Held, not to be a ratification of the deed. 10. A suit was brought in her name without her knowledge or consent; this was not an estoppel to her in an ejectment for the land. 11. The wife could not ratify the deed except in the manner prescribed by the Act of Assembly. 12. A wife, a minor, owned a remainder in land after the death of a life-tenant. During her minority and the particular estate, she joined her husband in conveying the remainder. She came of age after 1848, after which the tenant for life died. Held, that she and her husband could maintain ejectment for the land, the husband not being tenant by the curtesy till the particular estate expired, he then took his curtesy with its qualities under the Adt of 1848. 13. Her estate could not be taken in execution for his debt on account of his curtesy ; ho therefore could not alienate it during coverture, and she was not estopped by his deed or warranty from maintaining ejectment.
71 Pa. 483Greenawalt v. Greenawalt (1872)
1. A devise was: “to Samuel and to his heirs and assigns;” should Samuel’s son Calvin survive him, “ and then die without issue, then the estate devised to Samuel shall descend unto my two remaining children, Josiah and Sarah;" should Samuel leave a widow, she to occupy the devise for life. “ If Samuel should have other children, then the devise to him, his heirs and assigns to be absolute.” Held, that Samuel took a fee with executory devise over, which in case of the birth of other children, would no longer be subject to the executory devise. 2. “ Absolute,” is not used legally to distinguish a fee from a life estate ; but a qualified or conditional from a simple fee. 3. Calvin under the devise took an estate tail by implication. 4. Samuel having died without other children, Calvin’s estate became a vested tail in remainder, subject to Samuel’s widow’s life estate, which took effect in possession immediately. 5. The devise over to Josiah and Sarah was of-a fee, and therefore an indefinite failure of issue of Calvin was contemplated. 6. The fee of Josiah and Sarah vested on the death of Samuel, to take effect in possession on the death of Calvin, when the issue inheritable to his estate should fail. 7. On the death of Samuel, the limitations were : his widow for life, remainder to Calvin in tail, remainder to Josiah and Sarah in fee. 8. By deed under Act of January 16th 1799, Calvin docked the entail, and thereby barred the remainders after his estate. 9. Greenawalt’s Appeal, 1 Wright 95, affirmed; Taylor v. Taylor, 13 P. B. Smith 483, recognised.
71 Pa. 488Meily v. Wood (1872)
1. Where land is held by a'firm by deed expressing that it is partnership stock, an encumbrance against a member of the firm is not a lien upon any interest in it, so as to prevent the firm conveying to a purchaser clear of the encumbrance. 2. Wood conveyed to Meily & Co., declaring in the deed that the land was for partnership purposes; a judgment was entered by Wood, a few days afterwards, against one of the firm for his proportion of the purchase-money ; the partner conveyed his interest in the partnership to his fellows, and withdrew; they conveyed the whole. Held, that the judgment was not a lien against the terre-tenants. 3. The land was personal property to be applied according to the equities between the partners, in payment of the partnership debts in the first instance. 4. Each partner’s interest was, as in any other property of the firm, what should be due him on a final settlement. 5. An execution by a separate creditor would sell, not an interest in realty, but the balance due his debtor, with right by bill in equity to compel a settlement. 6. Where land is agreed to be made partnership stock, there is an out-and-out conversion. 7. Erwin’s Appeal, 3 Wright 535; Kramer v. Arthurs, 7 Barr 165; Lancaster Bank v. Myley, 1 Harris 544, approved.
71 Pa. 495Grant v. Commonwealth (1872)
1. Under the Act of February 15th 1870, allowing writs of error as of right in cases of homicide, the Supreme Court will not consider the case as on a motion for a new trial. 2. On a motion for a new trial the court considers the testimony on both sides, and judges whether the jury have given undue weight to either side under all the circumstances of the case as presented to them. 3. The duty of the Supreme Court under the act is to see whether there was evidence which if believed by the jury would furnish the elements of murder in the first degree. 4. If there be in the evidence ingredients to constitute murder in the first degree, the power of the Supreme Court as to awarding a new trial ceases. 5. Under the Act of 1870, errors alleged to any portion of the charge or rulings on evidence can be brought before the Supreme Court only by bill of exception as in eivil cases: and the court cannot reverse unless the exception be taken at the trial. 6. In this respect the Act of 1870 does not alter or supply the Criminal Code of March 31st 1860. 7. The Act of 1870 dispenses with a bill of exceptions only so far as to ascertain whether the facts constitute murder in the first degree. 8. Hopkins v. Commonwealth, 14 Wright 9, followed; Schoeppe v. Commonwealth, 15 P. F. Smith 51, remarked on.