74 Pa.

Volume 74 — Pennsylvania State Reports

83 opinions

74 Pa. 13Ernst & Godshalk v. Steckman (1873)
Error to the Court of Common Pleas of Lancaster county: No. 45, to May Term 1873. This was an action of assumpsit, in which the writ was issued June 18th 1870, by J. H. Steckman against J. G. Ernst and John 0. Godshalk. The action was founded on the following note, which was partly written and partly printed. The parts written are indicated by italic letters. “$375. Paradise, Lancaster Co., Pa., June 11, 1869. Twelve months after date (or before, if made out of the sale of W. S. Coffman’s Improved Broadcast Seeding Machine), I promise to pay to J. S. Huston, or bearer, at The First National Bank of Lancaster, Three Hundred and Seventy-five Dollars, without defalcation, for value received, with interest. J. GEORGE ERNST. JOHN O. GODSHALK." There was another similar note given at the same time, and for like amount, payable in six months. The plaintiff was the holder of the note at the bringing of the suit. The case was tried October 24th 1872, before Livingston, P. J. The plaintiff gave the note in evidence, and rested. Ernst, one of defendants, testified that a man wished to employ himself and Godshalk a.s agents to sell the machine. Upon witness hesitating, he said they should have no trouble; Mr. Huston lived in Boston, and would attend to all “them things,” and would publish their agency in all the papers. He said, on his return to Massachusetts, where his employer lived, he would send a sample machine without cost. “We were to send for machines as we wanted them, and sell them for $16 each; $6 was to be our share. The $10 on each machine was to go on till the amount of $750 was sold. Then he would not look for anything more off us, and he would give us the patent right.” He further testified that the man showed him a paper, which he said was authority for them to act as agents. He said the note they signed was an agreement to sell machines. There was one note for six months and one for twelve months. They were not to pay the note at all till it was made out of the machines. They never got any machines. There ivas evidence that, on the 12th of June 1869, the defendants, by publication in newspapers in Lancaster county, warned the public against taking the note. There was evidence also that inquiry had been made in Boston, and no such man as J. S. Huston could be found. Also, by certificate from the Patent Office, that J. S. Huston had no interest in the patent. The plaintiff testified in rebuttal that he had given value for the notes on the 19th of March 1870; that he had never seen any notice in the papers connected with the note in suit. The plaintiff submitted this point, which was affirmed: — ■ “If the jury believe the note was received by plaintiff before its maturity, and that he paid value for it, and had no notice of the circumstances under which the note was obtained from the makers, your verdict must be for the plaintiff.” The defendants’ point and its answer were:— The paper upon which this suit is brought not being negotiable or commercial paper, the plaintiff cannot maintain this suit in his -own name, and the verdict must be for the defendants. Answer: “ The note upon which this suit was brought is a negotiable note, and the plaintiff in this suit can maintain a suit upon it in his own name.” The court also charged that there was no proof that the plaintiff had actual notice of fraud in making the note, or of the putting it into circulation, and that therefore he had a right to recover. The verdict was for the plaintiff for $45Q. The defendants took a writ of error. They assigned for error the answers to their points and the instruction of the court.
74 Pa. 17Farmers' Mutual Insurance v. Graybill (1873)
42, to May Term 1873. On the 26th of July 1870, Abraham Eorney, administrator, &c., of Graybill B. Eorney to the use of Henry B. Graybill, brought an action of covenant against the Farmers’ Mutual Insurance Company of Lancaster county to recover for the loss by fire of property insured under a policy made April 13th 1857 to G. B. Eorney. The property was a two-storied mansion-house, valued at $3000 and insured for $2000.
74 Pa. 25Grubb v. Grubb (1873)
1. Clement and Edward owned in common “ The Mount Hope Estate,” which consisted of several tracts of land and one-sixth of “ three certain mine-hills * * * known as Cornwall Ore BanksClement conveyed to Alfred his half of “ The Mount Hope Estate,” designating the particular tracts, “together with the right, &c., so far as the said Alfred’s right under this conveyance in said Mount Hope Furnace is concerned,of the said Clement to raise, &c., for the use of said furnace iron ore out of three certain mine-hills, &c., known as 1 The Cornwall Ore Banks,’ &c., but for so long and such time only as said furnace can be carried on, &c., by charcoal.” Held, that this conveyance granted to Alfred a limited privilege to take ore, and did not convey the corporeal estate in the mine-hills ; that remained in Clement. 2. The deed from Clement to Alfred recited that Clement held the said landún common with Edward ; in an action of partition by the heirs of Edward against Alfred, Held, that the deed was primá facie evidence for plaintiff of the title of Edward’s heirs. 3. In the partition the plaintiff demanded “ The Mount Hope Estate,” setting out ther particular tracts, and not the ore-hills, but averred that each tenant was entitled to one-eighth, with the “ appertenancesHeld,t\i&i the right to ore in mine-hills passed under “ appertenances.”
74 Pa. 35Walker v. Graham (1873)
66. On the 12th of October 1871, Harrison Graham brought an action of assumpsit against Asahel C. Walker and Samuel Walker, partners, &c. Arbitrators, under a rule of reference taken out by the plaintiff, found an award for $354.20 in his favor.
74 Pa. 36Hartman v. Danner (1873)
1. Hartman lent money to Duphorn for a year at 8 per cent, on a note, stated to be at 6 per cent., with Danner as surety; about maturity Hartman agreed to an extension for a year, upon Duphorn paying 2 per cent, usury, and in the same way for a third year. The usury was paid after tho maturity of the note. Danner had no knowledge of the usury or the extensions. Held, that the contract for usury being illegal, it was without consideration and therefore not binding on Hartman, and he could recover from Danner notwithstanding the giving of time. 2. The payment of the usury after maturity of the note was a payment on account, which the debtor was under obligation to make, and therefore no advantage to one or disadvantage to the other, so as to create consideration. 3. A payment of part of a debt before due, is a consideration sufficient to support a contract to give time. 4. Payment of part of a debt due without a release under seal, although received in full satisfaction, will not discharge the debt.
74 Pa. 42Eshleman's Appeal (1873)
Appeals from the Orphans’ Court of Lancaster county, in the estate of John Gryger, deceased: Of May Term 1873, No. 91 and No. 86. The decedent died intestate on the 12th of April 1870, leaving a large estate, consisting of real and personal property. His heirs at law were a daughter, Elizabeth O. Eshleman, and a grandson, Abijah D. Gryger, the only child of a deceased son, Jesse Gryger. Administration of his estate was granted to Mrs. Eshleman. It is to be gathered from the auditor’s report that the real estate of the decedent was sold by the administratrix. Her administration account was confirmed nisi, September 18th 1871; it showed in her hands a balance of $67,300.93. One of the items of credit which she claimed was “ commissions on personal property $2673, commissions on real estate $1047.” Total $3720. There were a number of exceptions filed to the account, of which the 4th was to the amount claimed for commissions. The account was referred to A. H. Hood, W. Leaman, and E. H. Yundt, Esqs., as auditors for adjustment and distribution. With reference to the 4th exception the auditors said:— “ The commissions on the personal property do not exceed the customary rate of 5 per cent. The commissions on the proceeds of real estate sold are $10 in excess of 2J per cent. Thompson, J., remarks in Skinner’s estate, 17 Leg. Intel. 381, that the usual commissions 'to- an executor are 2J per cent, on sales of real estate and 5 per cent, on other receipts, and these should not be varied except for cause. The administration of the estate of the present decedent, appears to have been attended with the quantity of trouble, care and responsibility, which the settlement of intestates’ estates ordinarily imposes. The auditors can see no reason for reducing the commissions under the fourth exception, except with respect to the $10 in excess of the 2J per cent, on the sales of real estate, which are struck off, making the commissions allowed thereon, $1037.” Some of the other items excepted to were admitted by the accountant to be errors, and the account was corrected accordingly; with these corrections, the auditors reported the balance in the hands of the administratrix for distribution to be $74,659.93. In ascertaining the precise amount for distribution the auditors allowed some unadjusted claims against the estate which had not yet been paid by the administratrix, charged the accountant with interest on the balance up to April 1st 1872, and after deducting costs, expenses of audit, &c., ascertained that the actual amount for distribution was $74,330.32. On the hearing in relation to the distribution there were presented to the auditors accounts for two classes of claims against Abijah Gyger, in favor of his grandfather, the decedent, containing statements of charges against Abijah and advances to him— some entries made by the decedent “ on a loose sheet of paper,” and the others in numerous “bills, notes, checks and memoranda,” preserved by the decedent with his securities and other valuable papers in a tin box, which was produced after his death from the vault of a bank where it had been deposited by him. Abijah D. Gyger offered to testify in explanation of these items of charge against him; the auditors decided that he was not competent on the ground of interest, to testify as to matters occurring in the lifetime of the decedent, and that he was not within the exception of the Act of April 15th 1869. They took the testimony of Mr. Gyger, but did not consider that portion of it which related to transactions in the decedent’s life. The auditors found that at the time of the death of the decedent, his grandson, Abijah D. Gyger, owed him $4571.30, and that the amount of advancements from the decedent to the grandson was $10,621.28, both which sums, amounting together to $15,192.58, they charged against his sharp of the estate. The distribution accordingly was:— To Elizabeth G. Eshleman . . $44,761.45 To Abijah D. Gyger . . •- 29,568.87 $74,330.32 A. D. Gyger filed exceptions to the report of the auditors. 1. The rejection of the exceptor’s testimony. 3. The amount allowed by the account for commissions. 6. Allowing in the distribution the amount claimed as debts against the exceptor. 7. Allowing in the distribution the amount claimed as advancements to the exceptor. The court (Livingston, P. J.) concurred with the report of the auditors except as to charging advancements against the exceptor. In conclusion the judge said:— “ We are therefore of the opinion that the auditors erred in charging Abijah D. Gyger with advancements, alleged to have been made to him by his grandfather, in the distribution of his intestate grandfather’s estate; and that they should have charged him with nothing but such debts due from him to his grandfather, as might have been recovered from him by his grandfather in his lifetime, or by the administratrix of his estate, after his decease. But, as this question was not raised distinctly before the auditors, and as their report shows they did not examine into, and discriminate between debts and advancements, with as much strictness and .particularity or nicety as they would have used had this question been fully contested before them, we recommit the report to them to re-investigate the claims made by the administratrix of the estate of John Gyger, deceased, against Abijah D. Gyger, and report any further or additional testimony taken by them concerning the same, together with the distribution made by them after such investigation, to this-court.” In their second report the auditors found that the amount of debts due by A. D. Gyger to the decedent was $4880.29. They found, also, that the balance due the estate, including the debts owing by A. D. Gyger, was $78,896.61, This sum they-distributed as follows:— To Elizabeth G. Eshleman, $89,443.30. To Abijah L>. Gyger (after deducting his indebtedness), $34,568.01. Mrs. Eshleman filed five exceptions to this report of the auditors ; the fifth was that the auditors had not charged against A. D. Gyger the advancements made to him. A. D. Gyger filed an exception that the auditors charged against him the sum of $4880.29 as indebtedness by him to the decedent. .The court dismissed the exceptions and confirmed the second report of the auditors. Mrs. Eshleman and A. D. Gyger severally entered appeals to the Supreme Court. A. U. Gyger assigned for error:— 1. That the court confirmed the decision of the auditors in rejecting his testimony. 2. That the court confirmed the decision of the auditors in allowing the commissions which were credited to the accountant. 5. That the court confirmed the report of the auditors in charging the exceptor with $4880.29 as due by him to the decedent. Mrs. Eshleman assigned for error';— 1. Deciding that in the distribution of the decedent’s estate, A. D. Gyger, as grandson, was not liable to account for advancements. 2. Not confirming the first report of the auditors.
74 Pa. 49Farmers' & Mechanics' Bank v. Lefever (1873)
Error to the Court of Common Pleas of Cumberland county: Of May Term 1873, No. 47. This was an action of assumpsit, brought December 23d 1869, by the Farmers’ and Mechanics’ Bank of Shippensburg against David Lefever. The plaintiffs alleged as their cause of action that the defendant had instructed the plaintiffs to pay the checks of the firm of Grilson Smith & Co., who were doing business with the hank, notwithstanding that firm might have an overdrawn account, and that the defendant would pay the plaintiffs ; that subsequently the defendant countermanded this authority, but that at the time of the countermand Grilson Smith & Co. owed the bank $911.02. It was to recover this sum that this suit was brought. The plaintiffs gave evidence of a verbal undertaking by the defendant to pay Gilson Smith & Co.’s checks; and various settlements with him, in which he paid their over-drafts, &c. The defendant gave evidence for the purpose of showing that all the checks paid were charged to Gilson Smith & Co., and that the bank looked to them, in the first instance, for payment; and the defendant’s promise to pay the over-drafts was collateral to pay the debt of Gilson Smith & Co. The court, Junkin, P. J., charged * * * “ Should you find that Lefever did assume to become paymaster for Gilson Smith & Co., then you will further inquire whether the credit given to Smith & Co. was in fact given by the bank to Lefever’s undertaking and upon' his sole credit and responsibility, and in no degree upon the faith of Smith & Co. paying the overchecked accounts of that firm. “ The following statute was passed in Pennsylvania on the 26th April 1855, in these words : ‘ No action shall be brought whereby to charge any executor or administrator upon any promise to answer damages out of his own estate or whereby to charge the defendant upon any special promise to answer for the debt or default of another, unless the agreement upon which said action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged theiewith or some other person by him authorized.’ * * * “Now, an engagement is collateral if the person for whose use goods are furnished upon the defendant’s promise or guaranty be liable at all, though it were the chief inducement to supply the goods ; and all such undertakings must be in writing; and it is a question for you to determine, under the facts of this case, to whom the credit was given. From the very definition of a collateral promise it follows that there must be some one who owes the debt directly. * * * “But if you find such promise and undertaking was made, but the bank, in thus advancing this money on the checks of Smith & Co., looked to both Gilson Smith & Co. and Lefever for repayment, then the promise of Lefever would be collateral, and not being in writing, as required by the Statute of Frauds, as we have read to you, the plaintiff cannot recover. On these simple principles you will dispose of the case, and find such verdict as may accord with your convictions produced by the evidence.” * * * Both parties excepted to the charge, but no question was reserved by the court. The verdict was for the plaintiffs, for $1066.80. The defendant obtained a rule to show cause why judgment should not be entered for him non obstante veredicto. After argument, the court, Junkin, P. J., made the rule absolute, and directed judgment to be entered for the defendant non obstante veredicto. The judge, in the conclusion of his opinion, saying':— “ In no aspect of this case can Lefever be considered the primary debtor, or that his is the superior liability. The use made of the money by the original debtor cannot have the least weight in determining the question of the defendant’s liability. That Lefever made this assumption, and that plaintiff relied upon and advanced the money of the bank on the faith of said understanding, cannot be doubted. And whilst we regret the misfortune of the plaintiff that the evidence of the promise rests wholly in parol, we are constrained by imperative duty to say that this parol undertaking and promise by the defendant to the plaintiff is within the Statute of Frauds, and its execution forbidden, however much it may harm the plaintiff.” On the removal of the record to the Supreme Court, the plaintiffs assigned for error that:— The court erred in directing judgment to be entered non obstante veredicto, without “points being reserved,” “facts admitted,” or “ specially found by the jury.”
74 Pa. 52Morgan v. Neville (1873)
1, Morgan owed Neville wages for labor contracted for and performed in Pennsylvania; Neville owed Shannon for goods sold to him in Pennsylvania, where the three were residents. Shannon attached the debt in Morgan’s hands, in Maryland, and served him ; Morgan gave Neville notice of the attachment. Shannon obtained against him as garnishee a judgment which he paid, the proceeding being without collusion between Shannon and Morgan. Held, that this was a defence in a suit by Neville against Morgan in Pennsylvania. 2. Shannon, as a citizen of Pennsylvania, had a right to all the privileges of a citizen of Maryland, and could sue in that state. 3. A garnishee in foreign attachment, to protect himself, must give notice to his own creditor. 4. The act of Pennsylvania exempting wages from attachment is not part of the contract, and the act was not carried with the debt into the Maryland forum; the remedy there was by Maryland laws. 5. The record of the Maryland justice did not show that all the preliminary steps of notice, &e., had been taken. Held, that the presumption was that all things had been done to authorize the entry of judgment. 6. Steel v. Smith, 7 W. & S. 447, distinguished.
74 Pa. 59Lenhart v. Ream (1873)
1. Land was conveyed in 1846, the grantor being then eighteen years old; in ejectment by the grantor there was evidence that the defendants and those under whom they claimed had held possession under the grant for more than twenty-one years and for more than ten years after the grantor arrived at age. Held, that this was evidence for the jury that the defendants had a title under the Statute of Limitations. 2. Improving the land by the defendants was evidence on the question of the character of their possession. 3. Henry v. Carson, 9 P. P. Smith 297; Urban v. Grimes, 2 Grant 96,.fol-lowed.
74 Pa. 61Somerset & Stoystown Road (1873)
Certiorari to the Court of Quarter Sessions of Somerset county: No. 70, to May Term 1873. In the matter of a public road from Somerset to Stoystown. On the 19th of February 1872, a petition was presented to the Court of Quarter Sessions of Somerset county, setting forth “that a road from Somerset borough to the borough of Stoystown was laid out on the-day of-- 1798, and ordered to be opened -feet wide, and that part of said road from the north-west corner of the lot of George W. Pile, in Somerset borough, to the south-west corner of the lot of Henry E. Knepper, in Somerset township, is found to be too narrow to accommodate the public;” and praying the court to appoint three persons to widen and straighten the same, &c. Viewers were appointed, who reported in favor of widening and straightening the road. The report was confirmed nisi May 7th 1872, and court fixed the width of the road at thirty-six feet. The Court of Quarter Sessions, on February 6th 1852, “decreed that the borough of Somerset be subject to the restrictions, and possess the powers and privileges conferred by the Act of Assembly, entitled ‘An Act regulating Boroughs,’ approved 8d April 1851. And it is further ordered and decreed that the provisions of the former charter of the said borough shall be and they are hereby annulled by this decree, so far as they are in conflict with the Act of Assembly aforesaid.” The portion of the road west of the Stoystown bridge is within the corporate limits of the borough of Somerset, and the portion east of said bridge is in Somerset township. IT. J. Pickings filed exceptions, to wit:— 1. The Court of Quarter Sessions has no jurisdiction in the matter. 2. That portion of the road within the borough is regulated by the Burgess and Council. On the 25th of November 1872, the court confirmed the report, holding that the Court of Quarter Sessions had jurisdiction in the 'premises. Pickings removed the record to the Supreme Court by certiorari, and assigned for error that the court erred in deciding “ that’ the Court of Quarter Sessions has jurisdiction under the Act of 13th June 1836, to lay out a public road, and under the Act of 8th May 1850, to widen a public road within the limits of a borough; and in confirming the report.”
74 Pa. 65Leidig v. Bucher (1873)
1. In an action for tort against two or more, separate acts not committed with a common purpose or design, and without concert, will not authorize a joint recovery. 2. If it he proved that only one was concerned the plaintiff may recover against him as if he only had been sued. 3. In an action against four for libel, a point was, “ It is not necessary to sustain the action to prove a joint engagement in making and publishing the libel; all that is required is to (prove) that each or any of defendants is guilty, and the jury can give a verdict against all or any one of the defendants, or separate verdicts against any two or more of them/’ The court denied the point, adding, li you may find against one of the defendants, but cannot find separate damages against both.” Held to be correct. 4. Defendants who have not conspired together or joined in committing the wrong should not be joined in the same action. 5. Bard v. Yohn, 2 Casey 482, followed. Weakly v. Foyer, 3 Watts 460, distinguished.
74 Pa. 69Hamilton's Estate (1873)
1. A testator made a will dated November 20th_1871; he made another dated January 13th 1873 ; he made a ■“ codicil to my last will and testament,” dated “ this — day of January 1873.” . By the codicil, after referring to the law relating to bequests to charities, he provided, “ Now I declare said will of 20th November 1871 to be-my last will should I die before the 1st of March 1873, otherwise the will of 13th January 1873 shall be my last will.” He died on the 23d of January 1873. Held, that paper of November 1871 was his will. «- 2. The paper of January 13th 1873 was not his will, the contingency on which it was to become so never having happened; and it did not therefore revoke the will of 1871. 3. The codicil and the will of 1873 are to be construed as one instrument. 4. The will of 1871 spoke from its date, and the charitable bequests were not avoided under the Act of April 26th 1855.
74 Pa. 74Glatfelter v. Commonwealth (1873)
Error to the Court of Common Pleas of 2, to May Term 1873. Dauphin county: No. This was an appeal, filed November 4th 1871, by John Glatfelter, treasurer of the county of York,, from a settlement by the accounting officers of the Commonwealth, made September 14th 1871. The accounts were as follows, viz : — - “ John Glatfelter, (late) treasurer York county, in account with the Commonwealth of Pennsylvania, Dr. Militia Tax. To amount of said tax for the year 1869, as per state- ment of' Kell, herewith filed, . . . $2218.00 Deduct sundry credits, . . 1090.46 Due Commonwealth, . . > . $1127.54 Accrued interest, .... 112.77 Due Commonwealth, . . . $1240.31” “ John Glatfelter, (late) treasurer York county, in account with the Commonwealth of Pennsylvania, Dr. Militia Tax. To amount of said tax for the year 1868, as per statement herewith filed, .... $2233.50 Deduct sundry credits, . . . 1188.83 Due Commonwealth, . . . $1044.67 To amount due Commonwealth for the year 1869, $1240.31 Militia tax, as above, . . . 1044.67 Accrued interest, . . • . . 167.15 Due Commonwealth, . . . $2452.13” On his appeal, Glatfelter filed, seven “ specifications of objections;” none are necessary to notice but the following:— ' 2. Because the said appellant settled his accounts annually as treasurer of the county of York, for the years 1868 and 1869, with the auditor-general, and holds his acquittances in full for the balance due the Commonwealth on said settlements. 3. Because the appellant is entitled to a credit of $721.65 in the year 1868, and $528 for the year 1869, for money paid to assessors of the county of York, for their services in making rolls, giving notice, &c., which moneys were paid on orders issued by the commissioners of said county for that purpose, and allowed by the auditors of the county of York, instead of the sum of $134.01 in the year 1868, and $133.08 in the year 1869, allowed in the settlement from which this appeal is taken. 4. Because the said appellant is not allowed a credit of $400 in the year 1868 and $400 in the year 1869 for money paid by him to the commissioners of the county of York, for their services in making enrolments required by law in regard to said military fund, and allowed by the auditors of York county in the adjustment of his accounts. The appeal ivas tried April 29th 1872, before Pearson, P. J. The Commonwealth gave evidence of the amount of militia tax paid to Glatfelter, as shown by his books as county treasurer in his own writing, for the years 1868 and 1869, being the same as those charged to him in the settlement by the Commonwealth’s officers. The Commonwealth further (under objection by the defendant and exception) gave in evidence the settlement from which the appeal was taken, and proved that no charge for military tax had been made against Glatfelter prior to that settlement. The defendant testified that the military tax had been paid out by him in accordance with the county auditor’s report, and that he had paid the balance in his hands to his successor as county treasurer. He also testified specifically as to the items of credit in his account. The settlements of Glatfelter’s accounts with the Commonwealth, by the accounting officers, on May 24th 1869, and May 16th 1870, were also given in evidence; these settlements showed that Glatfelter had paid in full all that appeared to be due by them; neither settlement contained any charge against him for military tax. The following certificate was also given in evidence:— “ We, the auditors of York county, respectfully report, that we have carefully examined and audited the military tax accounts of John Glatfelter, treasurer of said county, and after deducting all his credits, we find a balance in his hands, and due the county, of one hundred and forty-five dollars and ninety-seven cents, which is submitted. “ In witness whereof, we hereunto set our hands and seals, this 12th day of June 1869.” Also a similar certificate dated February 8th 1870, finding a balance due by Glatfelter to “the Commonwealth of $275.38.” Both auditors’ reports were approved by the Court of Common Pleas of York county. The defendant offered'to prove that the commissioners of York county in 1861 made an appropriation of $10,000 for the relief of the families of volunteers, and that the treasurer of that fund disbursed it for relief purposes until 1867, when he paid $857.26, the balance remaining in his hands, to the county commissioners. This was objected'to by the Commonwealth, rejected by the court and a bill of exceptions sealed. The Commonwealth under objection by defendant and exception proved that there was a military organization in York county in 1866, which was in force in 1868 and 1869. The defendant submitted the following points, both which were denied :— 3. The accounts of county treasurers, of moneys received for the use of the Commonwealth, must be settled by the county auditors, and not by the auditor-general. The Commonwealth having proved, in this case, that the accounts of the defendant, as treasurer of York county, were settled by the county auditors, and not appealed from, such settlements are conclusive. 4. Under the 5th section of the Act of 7th of April 1870, the state has no interest in the military fund, and the auditor-general no jurisdiction over the settlement thereof; the verdict in this case must, therefore, be for the defendant. “ The court, after stating the facts in the case and referring to the auditing of the accounts by the county auditors, said:— Taking it for granted that they were audited, yet we are of the opinion and so instruct you that the county auditors have nothing to do with the military accounts, they are out of their jurisdiction, are not to be settled by them but by a military board or the state officers. The auditors might as well undertake to settle the accounts of the Bank of York County as those military claims. When the auditors make a settlement of a matter within their jurisdiction and regularly file the same according to law, it is conclusive on the state and all parties, unless appealed from. What was actually embraced in this settlement we do not know, not having read the papers, but we instruct you that so far as it embraces these military claims it was void and heyond their jurisdiction ; it might as well have been made by a board of township auditors. The orders drawn on the treasurer by the county commissioners to pay out of this fund are also void, as the militia law provides for the money being drawn by the orders of a military board, and not by the county commissioners. The accounts of the treasurer are also to be settled by the same tribunal when there is one. If there is none, then, as we conceive, it must be done by the state accounting department, or the money remain in the hands of the treasurer undrawn and the accounts unsettled. It is proved by the defendant that he paid no part of this fund to the families of volunteers. There were none to whom it could have been paid at that time. * * * “We come now to the only point of any legal difficulty in the ease — had the state officers jurisdiction over this account, and the legal authority to make a settlement? They are clearly authorized by the Act of 1871 to settle the accounts of all persons indebted to the state, and holding money to which she is entitled. This is a point not raised in the specifications, but it presents itself directly to our consideration. By the 5th section of the Act of April 7th 1870, Pamph. L. 63, the county treasurers are required to hold the military fund and disburse the same according to the direction of the 99th section of the Act of 1864, but in any county where there is no military organization the money is to be paid at the end of each year to the school boards of the respective districts, in proportion to the number of taxable inhabitants therein. As we understand the law and the facts there was a volunteer military organization in York county during the whole term of this treasurer, and such organization still continues. It is in proof by General Russell, the adjutant-general, that there were four uniformed volunteer military companies in York county, regularly organized as companies, all of which had drawn arms from the state, and which were entitled to receive certain sums to reimburse the expense of uniforms and their annual outlay for various purposes, designated in the military laws, though there was no brigade organization. As we construe the law this fund cannot go to the school board in any county where there is a military organization entitled to any part thereof. Any one of these companies constituted a military organization. Therefore the school boards could not claim the money. By the Act of 21st April 1858, Pamph. L. 425, and other parts of the same and subsequent laws, this fund is to be paid out for the benefit of the uniformed militia of the county, to be drawn from the treasury by the officers of the brigade, and whatever is not wanted for that purpose is to go into the state treasury for the use of the general military fund. By the 99$i section of the Act of May 4th 1864, the brigade officers constitute a board, with power to audit and adjust all claims on the brigade fund, for expenses, &c., and draw their order on the treasurer for the amount. When no such board exists, it is very possible that the organized companies may find a difficulty in drawing their money for want of the proper orders, though we are inclined to believe that they can draw out of the state treasury — they are clearly entitled to receive it under the law.' There being no other tribunal lawfully entitled to settle the account of the county treasurer, and all surplus being due to the Commonwealth for military purposes, the settlement must be made by the accounting department. It is pretty difficult to determine, under the numerous and complex militia laws, what are or are not in force; but so far as we have seen, this part of the Act of 1858, which gives the surplus to the state treasury, has not been repealed. We are, therefore, of the opinion that the auditor-general and state treasurer can lawfully settle this account, and the general outlines of the settlement made by them are correct. Some of the details must be corrected in the manner indicated, such as the allowance of the sum paid to the succeeding treasurer.” The verdict was for the Commonwealth for $2268.85. The defendant took a writ of error and assigned for error the rejection of his offer of evidence, — the denial of his points and the charge of the court.
74 Pa. 83Commonwealth v. Pittsburg, Fort Wayne & Chicago Railway Co. (1873)
Error to the Court of Common Pleas of Dawpliin county: Of May Term 1873, No. 32. - This proceeding was by appeal filed December 28th 1870, by The Pittsburg, Fort Wayne and Chicago Railroad Company from the settlement made against them October 26th 1870 by the accounting officers of the Commonwealth. The settlement was for tax on capital stock and dividends claimed by the Commonwealth to he due from the company up to July 12th 1870. The amount found by the settlement to be due to the Commonwealth was $48,546.14. On the 23d of March 1870, J. P. Farley, the auditor of the company, furnished to the auditor-general, under date of March 23d 1870, “ The following statement, showing the date, amount and rate per cent, of each dividend declared, and the amount of capital paid in at the time the respective dividends were made, during the year ending December 31st 1869:— In the settlement the accounting officers of the Commonwealth treated the difference between $11,497,500, the original capital stock and $19,665,000, “the guarantied stock” as a dividend of profits of 71 per cent, on the original stock and taxed the company accordingly ; the correctness of this the company denied. The question was raised by the following circumstances : On the 7th of June 1869, the company leased their road to the Pennsylvania Railroad Company for 999 years at a clear annual rent of 12 per cent, per annum upon the capital, which was then $11,497,500. On the 7th of June, the Pittsburg, Fort Wayne and Chicago Railroad Company determined to issue 171 shares for each 100 shares of the stock then held by the stockholders, and to pay on the new stock a 7 per cent, dividend instead of 12 per cent, upon the original capital. The amount which each stock-' holder would receive on his increased number of shares after the conversion would be the same as that received by him before; the profits to be divided before and after the conversion, were the same, viz.: $1,380,000, being the rent at the rate of 12 per cent, on the capital stock, paid by the Pennsylvania Railroad Company. The ease was tried November 26th 1872, before Pearson, P. J. The Commonwealth gave in evidence the return made by the company as given above and the settlement. Also the following letter: “Pittsburg, Fort Wayne and Chicago Railway, (Pennsylvania Railroad Co., lessee,) Office of the auditor, Pittsburg, March 30th 1870. Hon. J. F. Hartranet, Auditor-General, Harrisburg, Pa. : Dear Sir : — Yours of the 24th inst. received, in reference to report of dividend on capital stock for the year 1869. In answer to your question as to increase of capital since June 30th 1869, I enclose you a copy of circular to stockholders and lease to the Pennsylvania Railroad- Company, in which, by referring to pages 11 and 12, you will find a full and satisfactory explanation of the increase of capital. Also enclosed you will find circular referred to in my letter of the 23d inst. Yours, truly, J. P. Farley, Auditor.” The Commonwealth then gave in evidence the circular to the stockholders, as to the lease to the Pennsylvania Railroad Company, viz.:— “ Pittsburg, Fort Wayne and Chicago Railway Company, 1 Office of the Secretary, Pittsburg, June 30th 1870. j At the adjourned annual meeting of the stockholders of this company, held in the city of Pittsburg, Penna., on the 24th day of June, A. D. 1869, the following'resolution was adopted, viz.:— Resolved, That inasmuch as in and by the provisions of the lease of the railway of this company to the Pennsylvania Railroad Company, after satisfying the liabilities of the company for interest and sinking funds, a perpetual dividend fund is provided, adequate to pay twelve per cent, upon the existing stock of this company, free and clear of all taxes, which may operate as a deduction from said dividends, it is expedient that a guarantied stock entitled to dividends at the rate of seven per cent, per annum, payable quarterly in such form and with such guaranties as the board of directors may prescribe, and of such aggregate amount as the annual rental of one million three hundred and eighty thousand dollars shall suffice to pay dividends upon, at the aforesaid rate of seven per cent, per annum, shall be created, and the same shall be in substitution of the now existing stock, in such manner and on such terms as the board of directors may provide; and that the board of directors, and such committee or officers as they may designate, are hereby vested with all powers which the stockholders can confer, and which may be necessary or proper to carry this substitution into complete effect.” Then followed a resolution constituting an executive committee, with the powers of the board of directors. “Pittsburg, Fort Wayne and Chicago Railway Oo., 7 Office of the Secretary, Pittsburg, June 30th 1870. j ‘ In pursuance of the foregoing, the executive committee ordered that there should be issued to the stockholders new certificates, to be called ‘ guarantied dividend stock,’ in exchange for the old cer.tificates, at the rate of one hundred and seventy-one shares of new stock for each one hundred shares of old. “ The president was directed to prepare new certificates of stock in accordance with this plan, and cause the same to be issued to' the shareholders on their surrender of the old certificates. “ The stockholders have surrendered, with the exception of a small amount, all the old certificates and taken new in exchange.” The Commonwealth offered in evidence a pamphlet signed “ Samuel J. Tilden, trustee,” which was the circular referred to in Mr. Farley’s letter of March 30 th 1870, being “A Circular to the Stockholders and Bondholders of the Pittsburg, Fort Wayne and Chicago Railway Company.” The parts to which Mr. Farley refers the auditor-general, on pp. 11 and 12, were read; the remainder was rejected and a bill of exceptions sealed for the Commonwealth; Judge Pearson saying “The parts read are proper as referred to by an accredited officer of the company in answer to the letter of the auditor-general. That does not make the residue, signed by Mr. Tilden as trustee, without proof that he was such, and in that capacity authorized to make admissions. The reference to certain pages as containing facts will not amount to admissions by the officer that all contained in the pamphlet is correct, but merely that such is the case with the pages referred to.” Pamphlet rejected. The paragraphs of circular read to the jury were :— “ The stockholders become entitled to the benefit of a fund adequate to give them twelve per cent, on the present amount of stock, free and clear of all taxes, whether federal or state, which are collected in any manner through the corporation, and are guarantied perpetually in the enjoyment of that fund. “ In this connection, it is proper to advert to the proposal to convert the present stock, which would be entitled to dividends of twelve per cent., free of deductions for taxes, into a new stock, which would be entitled to dividends of Seven per cent., quarterly, free of such deductions. “ That measure is, in this instance, totally clear from every question of personal interest or public policy, except whether it will be advantageous to the stockholders. The annual sum, receivable in quarterly instalments, is the same in either case; and the security to which that annual sum furnishes the income, is perpetual. “ The proposed new capitalization has no element in common with what is sometimes called the watering of stocks. It involves none of the expectation of equal dividends on increased issues, which lends attraction, sometimes illusory, to such financial expedients. It does not capitalize temporary prosperity, favorable seasons or abundant harvests, or speculative anticipations of the future, or the sanguineness of human hopes. It capitalizes only a fixed and perpetual money income, better secured than almost any first-mortgage bond.” The paragraphs excluded were:— “ In the mean time, the policy of the company has been to strengthen itself by re-investing its surplus earnings in the improvement of its line, and enlarging its capacity, both as to the amount and the economy of its business. H® * if® * “ But' in fact the nominal par of the stock is far below the amount of actual money invested, and far below the actual cost to the proprietors. ifc ifc ‡ í{< ^ * “ During that four years, about three and three-quarter millions of dollars of net earnings were re-invested in improving and equipping the line, and all of it was invested economically and productively. In all, nearly seven millions of net earnings have been thus re-invested, without counting interest thereon, and.without adding a dollar to the stock or bonds of the company; and detailed statements of the nature of the investments have been annually made; and the property which has been added remains visibly to attest the wisdom and prudence of the policy. ifc # ífc H®- * H® H® “ The real estate of the company at Chicago, Allegheny City and Pittsburg, is represented on the books at not more than from one-third to one-half its original cost, not more than a tenth of its present value. >}i * ‡ ❖ “ If stock had been issued for the money which has been invested, but not represented, and for dividends thereon, at the rate of seven per cent., or if stock had been issued for dividends withheld, the present amount of the stock would have been doubled. If ten per cent., instead of seven, had been adopted as the proper rate of remuneration, and stock issued accordingly, the present amount of the stock would have been much more than doubled. ij< * * ‡ i¡< ífc “ A seven per cent, stock, on which dividends would be guarantied by net earnings of five times their annual amount, may be considered a more certain and reliable security than almost any first-mortgage bond of the best class, while it has many peculiar advantages for the investor.” In his charge to the jury, Judge Pearson, after stating.the facts, said, amongst other things: * * * “ The rental to be paid to the company remained the same, $1,380,000 ; the amount of the money to be annually received by the stockholder the same, but he had an increased number of shares on which he was paid seven per cent, out of the same fund, instead of the twelve per cent, guarantied by the arrangement with the Pennsylvania Railroad Company. The question presented for our consideration is, is that a stock dividend ? It is an increase in the number of shares to be held by each stockholder, but they are of precisely the same value, and dividing to the holder a like sum of money. He receives no more money on his 171 shares than he was entitled under the lease to have on the 100. There cannot be any increase until after the expiration of the lease. The rent remains the same. The shares are subdivided for the convenience of the holder, not to increase their value or add to their income. We are unable to see any distinction between this case and that of 1000 shares-of stock, each entitled to one hundred dollars a share, and the same stock increased to 2000 shares, each entitled to fifty dollars. * * * “ We should say here as on several other occasions, that the state cannot be cut out of her taxes by any changes of stock or species of legerdemain; but it is the same to her whether she recover at the rate of one half-mill on each one per cent, of dividends made and declared, computing the same on stock dividing at 12 per cent., or on 7-12th more shares of stock declaring dividends at seven per cent.; the amount of money and tax are identical. The net earning received by each individual is the same. The intention of the state is to tax substantial dividends, net earnings — not a shadow <_r myth. By whatever name the department pleases to call it, it is plain to be seen that there is neither a stock or cash dividend here; it is a mere sub-division of the stock at a less rate of interest. There is but one difficulty in the case, and out of that this litigation has arisen. In making his report to the Auditor-General, J. P. Farley, the auditor of this company, in his item of Sept. 30th 1869, sets it down as “guarantied stock” $19,665,000, which looks as if the stock was so increased from $11,497,500 to the holders; and if it so stood unexplained it should be conclusive against the company. The same report, however, clearly, shows that it was done in the manner already indicated. We must take all of the report together; it was all given in evidence by the Commonwealth, as also that part of the pamphlet referred to in the auditor’s letter read, as marked on pages II and 12. Taking all of the facts into consideration, as proved by the plaintiff, they establish the case as stated in our charge. * * * We are of the opinion that the whole tax so charged is illegal. The company was lawfully taxed according to the settlement attached to the appeal, which is perhaps the most full and correct, with a tax of 1J mills on $16,524.51, amounting to $24.78, which is not paid, and for which you will render a verdict, with interest thereon at the rate of 12 per cent, per annum, after sixty days from the date of the settlement, amounting to $31.32. . The verdict was for the Commonwealth for $31.32. The Commonwealth took out a writ of error and assigned for error the rejection of the whole offer of evidence, and the charge of the court.
74 Pa. 94Commonwealth v. Erie & Pittsburg Railroad (1873)
Error to'the Court of Common Pleas of Dauphin county: No. 33, to May Term 1873. This was an appeal, filed April 6th 1861, by the Erie and Pitts-burg Railroad Company, from the settlement, February 20th 1871, against them by the accounting officers for state taxes. The settlement was as follows:— “ Dr. For tax on capital stock, per Act of May 1st 1868, for the year ending first Monday of November 1870, as per report herewith filed. 1870. Stock dividend of $896,850 on capital of $999,600. Tax at the rate of one-half mill on capital for each one per cent, of dividend, . . $44,8-12.50 1870. Dividend If- per cent, on $1,996,100. Tax |- mill,........ 1,746.58 $46,589.08 Or. By payment into treasury January 20th 1871, 1,746.59 Due Commonwealth, ...... $44,842.49” The report of the company to the auditor-general was as follows:— “ Office of the Erie and Pittsburg Railroad Company, \ Erie, Pa., December 8th 1870. j “ To the Auditor-General of Pennsylvania: “Agreeably to law, as treasurer of the above company, I make the following report, viz.:— “ Amount of capital paid in: $999,600 at par, and 10 per cent, on $996,500. “Date of dividend declared: September 10th 1870. “Amount of dividend declared: If per cent, on $1,996,100 capital stock — $34,931.75. “ Rate per cent, per annum of dividends: Seven per cent. (7 per cent.) Wm. Brewster, Treasurer.” The treasurer, on the 3d of January 1871, wrote to the auditor-general :— * * * “In reply to your inquiry as to ‘ how the capital of this company was increased from $999,600 to $1,996,100,’ I will state that, by an act of the legislature of Pennsylvania, this company lias the right to sell the stock below par. In pursuance of a resolution of the board of directors of this company, passed May 19th 1870, the option was given to the stockholders of this company of taking pro-rata for each share of stock held by them, respectively, the sum of forty dollars of the capital stock of this company, upon the payment of four dollars in cash for each share of stock so held. The increase of the capital stock of this company arises from this option having been taken by most of the stockholders.” The treasurer at the same time forwarded to the auditor-general the following circular:— “ Office of the Erie and Pittsburg R. R. Co., 1 Erie, Pa., December 1st 1870. | “To the Stockholders of the Erie and Pittsburg R. R. Co.: “ The Erie and Pittsburg Railroad having been leased to the Pennsylvania Railroad Company for the period of nine hundred and ninety-nine years, in consideration whereof the lessee assumes and guaranties to pay annually, in quarterly instalments, a sum equal to seven per centum on the capital stock of the Erie and Pittsburg Railroad Company. Notice is hereby given that a dividend of one and three-fourths of one per cent., less the United States and Pennsylvania state taxes, will be paid to the stockholders of this company, on the 10th day of the months of March, June, September and December of each year.” * * * In consequence of this letter and the circular, the accounting officers assumed that, under the facts there disclosed, the increase of the capital stock was a stools dividend, and charged the company with state tax upon it. The company alleged that this was erroneous, and appealed. The ease was tried, upon the above-stated facts, November 26th 1872, before Pearson, P. J., who charged:— “ This case presents a single question — Has the Erie and Pitts-burg Railroad Company made or declared dividends during the year 1870, on which it has failed to pay taxes to the Commonwealth? If it has, the settlement made at the department was probably right. That the company has increased its capital stock during that time is very clear. Prior to the year 1870, the amount of capital stock was $999,600. By a resolution of the 19th of May 1870, each holder of stock was authorized, on the payment of four dollars, to have a share of stock, valued by the company at forty dollars, for.each share held by him. The actual value of this stock has not been shown; whether worth more or less than the four dollars is not in' proof. We have no other evidence of which to predicate the charge than the letter of William Brewster, the treasurer of the company, dated January 3d 1871. Does that show a dividend made or declared ? It shows that the stock was thereby increased nearly a million of dollars, and the report- of the 5th of December 1870 states that a dividend of seven per cent, was declared on the whole stock, the new as well as the old, amounting to $34,931.75, on which the tax of $1746.59 was paid. This was on $1,996,100 of stock. By the first section of an act passed March 24th 1864, this company was authorized to issue a preferred stock, not exceeding $500,000 in amount, to be sold at such prices as could be obtained, on which should be paid a dividend of eight per cent., if so much was earned, for the purpose of purchasing rolling-stock, improving the road and paying debts, &c. By a further supplement the company was authorized to increase its capital stock 20,000 shares, computed at fifty dollars each ;• to issue bonds not exceeding $30,000 per mile, bearing interest at seven per cent., and sell the same at or below par. See Act 3d April 1867. Afterwards, by an Act of the 28th of March 1870, authority was given it to sell its common stock, instead of the preferred stock. Under this latter act, the million of dollars in shares appear to have been sold. All of this legislation ten'ds to show the great embarrassment of the corporation and its struggle to keep up its road, and there is no proof in the case tending to establish that the million of dollars was the profits of the road, which should have been divided among the stockholders. This case has not the smallest resemblance to that of the Cleveland and Ashtabula Railroad, 5 Casey 370, the Crane Iron Company, 5 P. F. Smith 448, or the Atlantic and Ohio Telegraph Company, 16 Id. 57, in each and all of which actual dividends were earned and declared. Had it been proved that this company had earned money by which the value of its stock was increased, and the sale resorted to as a method of dividing it among the stockholders, we should hold it to be a stock dividend; but nothing of the kind is proved or pretended. The .state cannot be deprived of her taxes by any kind of evasion or legerdemain, but her claim, like that of all other plaintiffs, must be established by evidence. It certainly is not shown by the letter of Mr. Brewster, and that is the only proof laid before us. A dividend, both in common and legal parlance, is ‘ a portion, of the principal or profits divided among several owners of a thingBouvier’s Law Diet. Webster defines itto.be £ a part or share.’ In speaking of it in connection with moneyed corporations, we always understand it to be the share or profits coming to each holder of stock. From aught that appears in this case, it was a sale of stock at a very low price, in order to raise money. It is true, the privilege was given to stockholders ■alone ; but neither that nor the dividend soon after declared on the whole stock, prove that any money was earned by the company which should have been divided. On this increase of capital the state Was entitled to her bonus under the law. She also got her tax on the dividend, which very probably never was earned, but cannot claim it on the sale of the stock without more proof than was exhibited in the case. The jury will therefore render a verdict in favor of the defendant.” The Commonwealth took out a Writ of error, and in several specifications, assigned the charge for error ; also that the questions of fact should have been submitted to the jury. By Act of March 21st 1865 (Pamph. L. 498), for the purpose of “purchasing rolling-stock, making necessary improvements, &c., the defendants were authorized to issue preferred stock and sell it” to such persons and for such a price and on* such terms as they may deem best. By Act of March 28th 1870, they were authorized to sell “ their common stock in lieu of their preferred stock, * * * and on the same terms and conditions that are now authorized by law for the disposal of its preferred stock.”
74 Pa. 100Wapples's Appeal (1873)
Appeal from the Court of Common Pleas of Centre county: No. 5, to May Term 1873. The proceedings in this case arose under the will of John Porter, of the borough of Northumberland, in the county of Northumberland, deceased. The will was dated November 19th, 1850; the testator died in March 1851. The will was proved in Northumberland county, on the 24th of the same month, and letters testamentary granted to David Brantigam and William H. Wapples, the executors named in it. Amongst other things, the will made the following bequest:— “ I give and bequeath, for the sole use and benefit of the First Presbyterian Church or Congregation in the borough of Northumberland, which shall be held in trustfor the sole benefit and use of the aforesaid church or congregation in manner, as hereafter described for ever, to wit: forty shares of the capital stock of the Farmers’ and Mechanics’ Bank, located in the city of Philadelphia; eight shares of the capital stock of the Bank of North America, located in the city of Philadelphia; thirty-five shares of the capital stock of the Bank of Kentucky, located in the state of Kentucky; and thirty-three shares of the capital stock of the Bank of Northumberland. And that my executors hereafter mentioned, shall dispose of and sell all of the aforesaid bank stock as aforesaid recited, to the best advantage, at any time within the period of one year after my death, and that when disposed of, sold by, my executors, they shall loan the proceeds of the sale of the aforesaid bank stock to one or more persons, only on undoubted bond and mortgage security, on real estate. The interest to be paid semi-annually as hereafter described. The period of time that the loan as aforesaid shall run, I leave discretionary with my executors, that is with the consent of the pastor of the said church or congregation (if there be such at the time) and ruling elders of said church or congregation. And that my executors shall have written out the bond and mortgage, made payable to and in the name of the ruling elders, as aforesaid in office in trust for the First Presbyterian Church or Congregation of Northumberland, in office for ever. And the interest thus falling due and payable on said loan of bond and mortgage, shall be paid semi-annually by the mortgagor, to the ruling elders in office of the aforesaid church and congregation, and their successors in office for ever. And further, that the said interest thus-falling due and payable as aforesaid semi-annually on bond and mortgage as aforesaid, shall be expressly applied by the elders, as aforesaid, as so much salary due to the pastor for the time being, of the First Presbyterian Church and Congregation in Northumberland, semi-annually, for ever.” On the 6th of December 1871, the following petition was presented to the Court of -Common Pleas of Centre county:— “The petition of William Foster and Mark Halfpenny, executors, &c., of Robert M. Foster, late of Harris township, deceased, and William Foster, of said township, in his own right, respectfully represents: That the said Robert M. Foster and William Foster, on the 23d day of October, A. d. 1861, -executed their bond and mortgage to William H. Wapples and Daniel Brantigam, executors of the last will and testament of John Porter, late of Northumberland county, Pa., deceased, in the penal sum of seventeen thousand six hundred and fifty-four dollars, conditioned for the payment of the sum of eight thousand eight hundred and twenty-seven dollars, on the 23d day of October 1871, with interest thereon semi-annually to the ruling elders of the First Presbyterian Church in the borough of Northumberland, by them to be appropriated according to the intent, terms and directions of the last will and testament of the said decedent, reference, &c. “ That your petitioners have paid the interest on said mortgage, in full, up to October 23d 1871, leaving*due from your petitioners the principal sum of eight thousand eight hundred and twenty-seven dollars, with interest from October 23d 1871, to December 5th 1871, which is sixty-one dollars and seventy-nine cents, making the whole amount due from your petitioners, principal and interest, the sum of eight thousand eight hundred and eighty-eight dollars and seventy-nine cents. That there has a dispute arisen between Wm. H. Wapples, the surviving executor of the said John Porter, deceased, and the ruling elders of the Presbyterian Church of Northumberland, as to whom this said money or fund rightfully and legally belongs, and to whom the same should be paid, and written notices have been served on your petitioners by the said Wm. H. Wapples and the said ruling elders as aforesaid, both claiming this money, and the said Wm. H. Wapples, surviving executor of John Porter, deceased, has instituted a suit in the Court of Common Pleas of Centre county, to No. —, November T. 1871, against your petitioners for the recovery of the amount due on said bond. As your petitioners do not know, in view of these facts, who is entitled to receive the money and to whom the same should be legally paid, would ask leave of the court to pay the aforesaid sum of eight thousand eight hundred and eighty-eight dollars and seventy-nine cents, the amount due on said bond and mortgage, into court, and that said court will order and direct the recorder of mortgages in and for Centre county, to enter satisfaction on said mortgage, and also to direct the prothonotary of Centre county, to discontinue the aforesaid suit against your petitioners and to make such further disposition in the premises as your Honors shall deem fit and proper.” The executor, Wapples, protested against the application, for reasons set out in a paper filed by him. On this petition the court on the 22d of January 1872 granted a rule upon William H. Wapples, surviving executor, &c., to show ca-use “ why the money paid into court in this proceeding should not be paid over to the Ruling Elders of the First Presbyterian Church of Northumberland, for investment under and in accordance with the provisions of the will of the said John Porter, deceased. On the 1st February 1872, the court made the following decree: “ It appearing to the court that there are objections to the claim of the mortgagees named in the within-recited mortgage, leave is given to the mortgagors to pay into court the sum of eight thousand nine hundred and seventy-one 75-100 dollars, being the amount claimed on said mortgage, and it is ordered and decreed that satisfaction shall be entered upon said mortgage by the recorder of Centre county.” On the 22d of February 1872, the court (Mayer, P. J.), decreed that the money paid into court “shall be invested in real estate security, to be approved by the court or a judge thereof. The said security to consist of a bond and a mortgage drawn in the name of and payable to ‘ The First Presbyterian Church of Northumberland,’ Pennsylvania, the interest on said sum so invested to be payable semi-annually to the ruling elders of the said ‘ First Presbyterian Church’ and their suecéssors in office for ever, to be by them appropriated according to the terms and direction contained in the last will and testament of John Porter, deceased.” The executor, Wap pies, appealed to the Supreme Court and assigned for error: 1. Allowing the amount of the mortgage to be paid into court and ordering satisfaction to be entered on the record. 2. Not ordering the money to be paid to the surviving mortgagee. 3. Ordering the money paid into court to be invested as set out in the decree.
74 Pa. 105Commonwealth ex rel. Dauphin County v. Hoffman (1873)
Error to the Court of Common Pleas of Dauphin county. This was a scire facias, at the suit of the Commonwealth, for the use of Dauphin county, against Jacob D. Hoffman, on his recognisance as sheriff of that county. The writ was issued November 15th 1870. The recognisance was acknowledged November 28th 1866, and was in the penalty of $15,000, with the usual condition that the sheriff execute all process, and pay to parties and suitors interested in such process all moneys belonging to them which shall come into his hands, and “faithfully execute and perform all and singular the trusts and duties to the said office lawfully appertaining.” By the 52d rule of the Court of Common Pleas, in all actions on bills, &c., -records and other writings for the payment of money, plaintiff, after thirty days from the return-day, may enter judgment, “ unless the defendant shall have previously filed an affidavit of defence, setting forth the nature and character of the same, but no judgment shall be entered unless the plaintiff shall, on or before the return-day of the original process, file in the office of the prothonotary, with his narr. or statement, a copy of the instrument of writing, book-entries, record or claim on which the action has been brought. * * * But where the action or writ is founded on a record on file, or contained among the records of the county, a declaration or statement filed, or a scire facias issued thereon, together with a reference in the precept to the original, shall be deemed a sufficient filing of a copy of the record or claim on which the action has been brought.” * * * The praecipe was:— “ See recognisance entered info by Jacob D. Hoffman, late sheriff of Dauphin county, November 28th, A. D. 1866, and duly certified to the prothonotary of the Court of Common Pleas of said county, and by him entered in Judgment Docket to No. 49, January Term, a. D. 1867, for $15,000. “Issue scire facias on the above-stated recognisance against defendant; for that whereas the said Jacob D. Hoffman, late sheriff of said county, did not and would not, at all times during his continuance in the office of sheriff of Dauphin county, well and faithfully execute and perform all and singular the trusts and duties to the said office appertaining lawfully, in this, that the said Jacob D. Hoffman, sheriff as aforesaid, did, at sundry times during .his official term, unlawfully obtain of and from the said county, from and through her officers, divers sums of money, amounting in all to the sum of two thousand nine hundred and ninety-one dollars and ninety-seven cents, in excess of all moneys and fees which, by the laws in force within this Commonwealth, he was entitled to obtain and receive as sheriff; that he, the said Jacob D. Hoffman, sheriff as aforesaid, did neglect and refuse, and still does neglect and refuse, to pay unto the said county, or her proper officer or officers, the said sum of two thousand nine hundred and ninety-one dollars and. ninety-seven cents, so had and received in the manner aforesaid, and found to be'due said county from him, the said sheriff, by the auditors thereof, as by their report made as required by law, will appear, although often thereunto requested; whereby the said plaintiff has been and is damnified — all of which is set forth as a breach thereof. Returnable next return-day.” The scire facias was in accordance with the praecipe, and was returned “ Served.” On the 8th of November 1871 judgment was entered against the defendant for $3305.12, for want of an affidavit of defence. On the 2d of July 1872, on application of the defendant, a rule was granted to show cause why the judgment should not be stricken off, for the following reasons :— “ 1. That the declaration qr statement filed does not exhibit a case within the 52d rule of court. “2. That judgment is taken for more than the amount set forth in the statement, or praecipe, or scire facias. “ 3. That the statement does not set forth that the amount for which suit was brought was obtained from the county or her officers in his official capacity. “ 4. That there is no date of the county auditors’ report given in the praecipe or scire facias, on which the judgment is supposed to be founded. “ 5. And generally, that the whole proceeding in the said action is illegal, informal and not in accordance with the requirements of the Act of Assembly.” • On the 21st of September 1872 the rule was made absolute, and the judgment was stricken off. The defendant then pleaded to issue. The cause was tried January 27th 1873, before Pearson, P. J. The plaintiff gave in evidence the report of the county auditors, dated February 10th 1870, on the'accounts of the defendant as sheriff, showing in items his claims against the county, amounting to $5215.60. The auditors certified:— “ The auditors also further report that they carefully and fully examined the accounts of Jacob D. Hoffman, late sheriff, and find that he received from the county funds, while sheriff, the sum of eight thousand two hundred and seven dollars and fifty-seven cents, while his accounts, as audited and allowed by us under the fee-bills, amount to only fifty-two hundred and fifteen dollars and sixty cents, leaving a deficiency of twenty-nine hundred and ninety-one dollars and ninety-seven cents.” Plaintiff also gave in evidence vouchers, showing that the defendant had received from the commissioners, upon their orders on the county treasurer, the sum certified by the auditors. The sums were received for “ sheriff’s fees,” and the orders were so made out. The report was never presented to the court or passed on by it. There was evidence also that the defendant, with his counsel, was present whilst his accounts were being examined by the auditors. The court charged:— * * * “ This report cannot for all purposes have the effect of a judgment; it certainly is not a lien. Although the report was placed in the office, and marked filed by the officer, yet it never was presented to the court, or filed by its order; was never entered on the record in any way, or placed on the lien-docket. We therefore greatly doubt its being conclusive against the sheriff. He, perhaps, could yet appeal. But the main point here is, does the claim, as proved in court by the vouchers, come within the terms of the recognisance? There is no doubt but that Jaeob D. Hoffman owes the money to the county. It must be borne in mind, however, that a judgment against the sheriff on his recognisance is conclusive on his sureties. They are bound to pay all of his official indebtedness which is covered by the recognisance, but they are ■obligated for nothing more. The terms of the recognisance are, in substance, that the sheriff shall, without delay, and according to law, serve and execute all writs and process which shall be directed to him, and, on request, pay to the several suitors or parties interested in the execution of such writs and process, all and every sum or sums of money to thorn due or owing, which shall come into his hands; and shall, during his continuance in the office of sheriff, well and faithfully execute and perform all and singular the trusts and duties to said office lawfully appertaining. This claim is not founded on the failure to execute process, or to pay money to suitors which came into his hands. Is there a failure to execute and perform the trusts and duties to his office appertaining ? We think not, and so instruct you. The uncontradicted evidence shows that this money was not collected for others, but for the sheriff himself. There is no obligation orí the part of the bail to refund overpayments made to the sheriff. The money was-rashly and improperly paid by the county commissioners, without any laivful claim on the county by him. It is true he alleged it would be coming to him ,for fees, but that kind of claim does not bring the case within the sheriff’s recognisance. ‘ It is not different in principle from his saying to a debtor: ‘ I shall probably have a writ against you next week, therefore you had better pay the judgment to me.” Such a payment would not discharge the debt, and the party paying would still be bound. So here. The county auditors could, with quite as much propriety, have charged the commissioners with this mispayment. It is money which came into the hands of the sheriff unlawfully, and for which his recognisors are not held. The sheriff must be sued in assumpsit for money had and received; it cannot be collected on the recognisance. Your verdict must therefore be in favor of the defendant.” The verdict was for the defendant. The defendant sued out a writ of érror and assigned for error the striking off the judgment and the charge of the court.
74 Pa. 112Confer v. McNeal (1873)
1. Jacob, by articles sold land to Samuel, his brother; after the death of both the land was sold by the administrator of Jacob for the payment of his debts ; in ejectment for the land there was evidence by the purchaser that the sale to Samuel was fraudulent as against Jacob’s creditors. Held, that a paper in Jacob’s handwriting, made after Samuel’s death, without date or signature, found amongst Jacob’s papers after his death, showing it was not an actual sale to Samuel, although there was no evidence of Samuel’s knowledge of the paper or its contents, was evidence on the question of fraud. 2. The least concert or collusion between parties to an illegal transaction makes the act of one that of all.
74 Pa. 116Ake & Feay's Appeal (1873)
Appeal from the Orphans’ Court of Blair county: Of May Term 1873, No. 43. The proceeding in this case was commenced February 2d 1866, upon the petition of Thomas Patterson, setting out that, on the 1st of October 1851, he made a contract in writing with Jacob Duck, by which Duck contracted to convey to him the undivided one-fourth of a tract of land in Cambria county, containing three hundred and seventy-seven acres, the tract being held in common with Johnston Moore; the petitioner to pay, as the consideration, $600, in the manner stated in the petition. The petition further alleged that the tract was chiefly valuable as timber-land, having a sawmill on it, and had been used by Duck and Moore for sawing-timber. Moore having received a larger amount than Duck, it was stipulated by Duck, in a memorandum in writing, signed by him and endorsed upon the contract on the day of its date, that the petitioner should have his share of the timber required to equalize him with Moore, hauled by Duck at his expense; and thereafter his share of all the timber sawed at the mill; and that afterwards, on the 18th of April 1859, Duck, by another memorandum in writing, under seal, bound himself to comply with all the conditions of the agreement. The petitioner averred that he had made various payments to Duck on the land, which, with what Duck had received from the proceeds of the saw-mill, the whole purchase-money was paid, and a large balance was still due to the petitioner; that Duck had continued to saw timber at the mill for a number of years after the date of the contract; that the petitioner was entitled to one-fourth of the proceeds, and that Duck had not accounted for it to the petitioner; that Duck died on the 24th of August 1861, without having made any provision for executing the contract, having made a will appointing Henry L. Ake and James J. Feay, executors, and leaving a widow, Sophia Duck, and a number of children and grandchildren (naming them). The prayer was for a decree for specific performance of the contract, and that the executors be required to pay the balance due to the petitioner, and execute to him a deed in fee simple, and for further relief. The executors answered that the purchase-money had not been paid, nor any considerable part of it, and that they believed Patterson was indebted to Duck’s estate. The article of agreement was as set out in the petition. The following memoranda were endorsed on it:— “ It is understood that whatever timber it will take to make Jacob Duck equal to what J. Moore has hauled to the saw-mill, the said Duck agrees to haul it at his own expense, and Patterson is to have his share out of all that is sawed from this day. In witness whereof I have hereunto set my hand this 2d day of October, a. d. 1851. Jacob Duck.” * “$100.00. “ Received, Williamsburg, April the eighteenth 1859, of Thomas Patterson, one hundred dollars on the article of agreement in relation to the saw-mill property on the Allegheny mountain, the same now called the Rough and Ready saw-mill, and I promise to make the deed and comply in every respect with the conditions as stated in said agreement. In witness whereof I have hereunto set my hand and seal this day above written. “Jacob Duck [l. s.].” Thomas McCamant, Esq., was appointed auditor in the matter. The auditor took a large amount of testimony and examined a large number of accounts. He reported these facts in the case, amongst others:— “ That at the time Duck and Patterson entered into contract for sale and conveyance of said land, referred to in petition, an ej ectment was pending for said land in the Court of Common Pleas of Cambria county, and that in February 1852 James Ross, plaintiff in said ejectment, was put in possession of the land, and continued to hold possession of the same for almost five years. It is also conceded by the parties that, during the time Ross continued in possession of the land, he stripped it of considerable timber.” The principal questions raised before the auditor and considered by him were: whether he had jurisdiction to state an account between the parties; whether the Statute of Limitations was a bar to the stipulations of the memorandum of October 2d 1851, and whether the timber cut off by Ross should be defalked from the purchase-money. The auditor decided that he had authority to state an account; that the timber taken by Ross should be deducted. from the purchase-money, and that the Statute of Limitations was not a bar — ■ saying “We think the memorandum was intended for part of the agreement, and look upon it as such. If, then, we consider the memorandum an enlargement and part of the contract entered into between Duck and Patterson, your auditor holds that the Statute of Limitations would not run against the same, on account of Duck afterwards, by his agreement in writing, under seal, and bearing date 18th April 1859, agreeing to comply in every respect with the article of agreement in relation to the saw-mill property.” * * * The auditor stated an account, finding that all the purchase-money had been paid by Patterson, and that there was still due from the estate of Duck to Patterson the sum of $865.88. Exceptions were filed to the report of the auditor. They were overruled by the court, the report confirmed and a decree made “ that H. L. Ake and James J. Feay, executors of the last will of Jacob Duck, deceased, do execute and deliver a deed in fee simple to the petitioner, and that they do pay out of the funds of the said estate the sum of eight hundred and sixty-five dollars and eighty-eight cents, found to be due to the petitioner by the auditor, and interest thereon from the date of the filing of said report.” The executors appealed to the Supreme Court, and assigned for error that the court erred “ 1. In assuming jurisdiction to settle the accounts of the parties. “ 2. In disregarding the plea of the Statute of Limitations. “ 3. In charging Duck’s estate with lumber cut by Ross. “ 4. In decreeing any balance to be paid by Duck’s estate to Patterson. “ 5. In confirming the auditor’s report.”
74 Pa. 121Person's Appeal (1873)
Appeal from the Orphans’ Court of Lebanon county: No. 65, to May Term 1873. In the distribution of the personal estate of John Pearson, deceased. The decedent died intestate, having had children, all of whom died in his lifetime. One of them, Sarah Meiser, left one child, Thomas Meiser; another, William, left one child, Amanda Cherrington; a third, David, left three children: Milton M. Person, Magdalena M. Person, and Emma A.'Person. The decedent left no other descendants in any degree. Magdalena Person, the widow of the intestate, survived him. The balance of personal estate in the hands of his administrators was $6900. James W. Ebur, Esq., was appointed auditor to report distribution. The auditor found that the intestate had advanced to his son, William, $400, and to his son, David, $4500. He reported that these sums should be deducted from what would have been the shares of the children respectively, before the fund was distributed amongst the grandchildren. He accordingly awarded To the widow, . . .... $2300 To Thomas Meiser, son of Sarah, . . ■ 1900 To Amanda Cherrington, daughter of William, 1500 To Milton M. Person, ] ' jr ( To Magdalena M. Person, > -L r?¿ 0 \ To Emma M. Person, j DaylfL ( 400 400 400 $6900 Exceptions to the report were filed on behalf of the children of David Person. The exceptions were overruled and the report confirmed. The children of David Person appealed to the Supreme Court and assigned for error, that the court erred :— 1, 2, 3. In charging the advancements made to David against the shares of his children. 4. In finding as a fact that there had been any advancement made to David.
74 Pa. 124Commonwealth v. Evans (1873)
Writs of error to the Court of Common Pleas of Dauphin county: No. 71 and 75, to May Term 1873. This was an action of assumpsit, brought September 29th 1871, by The Commonwealth of Pennsylvania against Ueorge 0. Evans. The first count of the declaration was, that defendant had collected money for the Commonwealth in his professional employment as attorney in fact and agent for the Commonwealth; the second, for money had and received by him as a public officer; the third on an account stated. Amongst other things, the defendant claimed 10 per cent, commission on claims which had been disallowed by the war department; but had been afterwards allowed through Evans’s agency, no money having been paid tó Evans for the state on account of them, but they had been set off against claims due by the Commonwealth to the United States. The case was tried March 3d 1873, before Pearson, P. J. The Commonwealth gave evidence, as follows:— Joint resolution of the legislature of Pennsylvania passed March 3d 1867, to wit:— “ Whereas, There is supposed to be due by the United States to the state of Pennsylvania various amounts for disbursements made during the rebellion, but disallowed by the accounting officers of the general government: “And whereas, It is believed that by carefully supplying deficient testimony, many of the amounts may be collected ; therefore, “ Be it resolved, That the governor be and is hereby authorized to appoint a special agent to collect the disallowed and suspended claims of the state against the United States, whose compensation for that purpose shall not exceed ten per centum of the amounts thus collected, and shall be paid out of such collections.” Commission to defendant by virtue of the resolution, viz:— “In the name and by the authority of the Commonwealth of Pennsylvania, John W. Geary, Governor of the said Commonwealth. “ Pennsylvania, ss: [seal.] “John W. Geary to George 0. Evans, Esq., of the city of Philadelphia, sends greeting : “ Whereas, In and by a joint resolution of the General Assembly of this Commonwealth, approved the 22d day .of March, a. d. 1867, the governor is authorized to appoint a special agent to collect the disallowed and suspended claims of the state against the United States: “ Wow know you, That having full confidence in your integrity, judgment and ability, I, John W. Geary, governor as aforesaid, have appointed, and by these presents do appoint and commission you, George 0. Evans, to be special agent to collect the disallowed and suspended claims of the state against the United States, in pursuance of and in accordance with the above-cited resolution of General Assembly of this Commonwealth. “ To have and to hold this commission, and the appointment hereby granted unto you, together with the rights, powers and privileges thereby conferred, until the same shall be by me, or other lawful authority, suspended or annulled. “ Given under my hand and the great seal of the state, at Harrisburg, this twenty-second day of March, in the year of our Lord one thousand eight hundred and sixty-seven, and of the Commonwealth the ninety-first.” “Agreement with Defendant. “ I, George 0. Evans, Esq., of the city of Philadelphia, having been appointed and commissioned by the governor of Pennsylvania, under joint resolution of the legislature, approved March 22d 1869, to collect sundry claims, in said resolution mentioned, do hereby obligate myself forthwith to pay over to the state treasurer of Pennsylvania, all moneys which I may be able to collect under said authority, less the commission allowed, and to make semi-annual reports to said state treasurer, of the amounts collected, and the sources from which derived; and also to make annual reports to said governor, under oath, including the amounts collected, and a statement of all claims ascertained to be due the state, and from what sources; and further agree, before entering upon the duties of my appointment, to give bond to the Commonwealth, with two sureties, conditioned for the faithful performance of my duties under said joint resolution and this agreement, in the sum of $10,000; said bond to be approved by the governor and filed in the office of the secretary of the Commonwealth. “ In testimony whereof, I have hereunto set my hand and seal at Harrisburg, this 23d day of March, a. d. 1867. Geo. O. Evans, [l. s.]” “Bond of Defendant. “jKnow all men by these presents, That we, Geo. O. Evans, Thomas Woods and John E. Graff, are held and firmly bound unto the Commonwealth of Pennsylvania, in the sum of ten thousand dollars, &c., sealed with our seals, dated the twenty-seventh day of March, Anno Domini one thousand eight hundred and sixty-seven. “ Whereas, The said George 0. Evans has been appointed by John W. Geary, Governor of Pennsylvania, special agent to collect the disallowed and suspended claims of the state against the United States, in accordance with the provisions of a joint resolution of the General Assembly, approved the twenty-second day of March, one thousand eight hundred and sixty-seven, “Now, the condition of the above obligation is such, that if the above bounden George 0. Evans, special agent as aforesaid, shall faithfully perform his official duties under said joint resolution, and under an agreement entered into by him the twenty-third day of March, A. D. 1867, then the above obligation shall be void, &c. Geo. 0. Evans, d. s. Thoimas Woods, b. si John E. Graff, L. Si “Executive Chamber, “ Harrisburg, Pennsylvania, June 17th 1869. “ Hon. J. P. Hartranft, “ Auditor-General of Pennsylvania: “Sir: — Please deliver to the bearer, G. 0. Evans, Special Agent, the vouchers for military disbursements hy the state from 1861 to 1866, needed by him in preparing claims for re-imbursement from the United States. “ You will also oblige me by extending to Mr. Evans the facilities of your office for this purpose. Yours, respectfully, Jno. W. Geary, Governor.” “Executive Chamber, “ Harrisburg, Pennsylvania, March 29th 1870. “ Hon. J. E. Hartranft, “ Auditor-General of Pennsylvania: “ Sir: — Under the Act’of Congress, July 27 th 1861, authorizing the governors of states to present claims for expenses incurred in raising volunteers during the late rebellion, I respectfully request that you will allow the hearer, George. 0. Evans (appointed by me special agent of the state, under the joint resolution of the legislature, March 22d 1867), to have duplicate vouchers of expenditures by the state on account of the late war, with the view of collecting, if possible, a class of claims, which, under the rulings of the department officers at Washington, have been technically disallowed and payment therefor refused. By supplying deficient testimony, with proper explanations, and the use of all available precedents, Mr. Evans is confident of obtaining the allowance of a considerable amount equitably due by the United States to Pennsylvania. “ Mr. Evans represents to me that pending legislation in Congress may speedily ‘ disallow ’ for ever every claim of this kind, and that prompt, action must be taken in the matter. For this purpose, I will gladly render you any assistance within my power. Yours, respectfully, Jno. W. Geary, Governor.” “Harrisburg, March 30th 1870. “ It is hereby agreed, that the compensation payable to Geo. 0. Evans, out of the commission of ten per cent, allowed by joint resolution of the legislature of Pennsylvania, passed March 22d 1867, for the collection of certain claims of the state against the United States (as per Act of Congress, July 27th 1861), shall be such as is deemed equitable and just by J. F. Hartranft, for service rendered in collecting the claims bearing date of settlement by the state officers, from and after December 3d 1862. “ It is further agreed, that the necessary expenses incurred by George 0. Evans, for printing, stationery, travelling, and clerical labor, in preparing said claims for settlement by the United States, shall be reimbursed to the said George 0. Evans, in addition to the allowance herein referred to. It is further agreed, that if nothing is collected, nothing is to be paid. J. F. Hartranet.” “ Pennsylvania, Executive Chamber, “Harrisburg, Pa., April 13th 1870. - “ To the Honorable George S. Boutwell, “ Secretary of the Treasury U. S., Greeting: “I hereby nominate and appoint George 0. Evans, to act for me, as my duly authorized agent, under the Act of Congress, July 27th 1861 (‘ for reimbursement of expenses properly incurred by the states, respectively, on account of their troops employed in aiding to suppress the present insurrection against the United States’) to present for settlement the claims of the state of Pennsylvania arising under the said act, or any other Act of Congress, for arming, equipping, paying, clothing, subsisting and transporting, &c., the troops of said state, called out for the defence of the United States, and to collect of the United States any money found due - from the United States to the state of Pennsylvania. “[s. s. great seal Jno. W. Geary, Governor.” OE THE STATE.] Also: draft of United States dated May 1st 1867, payable at sight to Governor Geary, on endorsement by George 0. Evans, special agent of governor, for $78,516.81, “for payment of state for raising volunteers due Pennsylvania on settlement.” Draft of same in same form, dated October 28th 1868, for $105,651.46. Draft of same in same form, dated August 27th 1870, for $136,846.09. These drafts were endorsed by the defendant. Letter dated August 15th 1871, from auditor-general and state treasurer to defendant, demanding payment by him, of $291,046.91, the money collected from the United States, and in his hands. The Commonwealth offered the settlement April 23d 1871, of the accounting officers against defendant, showing a balance of $337,249.12, due by him; it was rejected and a bill of exceptions sealed. The Commonwealth rested. The defendant then read: Act of Congress of July 27th 1861, directing the repayment to the several states of the money expended by them in raising volunteers to suppress the rebellion ; Act of Congress imposing a direct tax on the states, fixing the share of Pennsylvania at $1,946,719.33, providing that any state paying its share of the tax into the United States treasury before June 30th 1862, should be entitled to 15 per cent, deduction ; and also that any state might pay its share by release of any liquidated and determined claims of such state against the United States — the abatement of the 15 per cent, to be made on such claims also— also, Act of legislature of Pennsylvania, February 10th 1862, assuming the payment of the tax. It was admitted that the claims of Pennsylvania against the United States for which vouchers were filed were as follows: March 1st 1862, $1,182,997.37 June 11th “ 854,337.30 February 1863, 81,084.91 $2,118,419.58 F. G. Pettingill, examining officer in the third auditor’s office of the war claims of the states against the government, testified that these claims were filed as above stated, were examined and reported to the controller November 1st 1865. The third auditor allowed the claims, but the controller reversed his decision and allowed but $112.60, and that amount only passed to the credit of the state: that decision was final. There was afterwards a special settlement, and there were allowed to the Commonwealth claims amounting to $1,989,115.82; these claims were allowed on account of the explanation of defendant; he filed the vouchers for the 4th, 5th and 6th instalments;' he began his explanation March 27th 1867 ; all his work as to suspended or disallowed claims, as put in writing, embraced twenty six days ; there were fifteen communications, &c. The defendant then offered to prove in substance the agreement as to compensation with Governor Geary and Auditor-General Hartranft; that he undertook the duties at their request, and in consideration of the compensation which they agreed should be paid him. The offers were rejected and a bill of exceptions sealed for the defendants. The defendant testified at great length as to his claim, giving in detail his labors and the difficulties which he encountered; the irregularity of the vouchers and accounts of the Commonwealth;, his explanations to the department at Washington, &c., &c. He gave evidence for the purpose of showing the value of his services, &c. He gave in evidence receipts from the state treasury for the following payments, made by him: 1871 April 25th, .... $137,872.39 “ May 19th, .... 243,167.57 “ June 28th, . . . . 298,753.08 These payments were government warrants, dated respectively April 11th, May 15th and June 23d 1871, endorsed by defendant to Governor Geary and by him passed into the state treasury. Also, receipt of state treasurer, dated July 24th 1871, for1 $29,267,43. He gave in evidence another government warrant to him, dated August 26th 1870, for $136,486.09. He gave in evidence the following: “ Treasury Department, Third Auditor’s Office, August 12th 1871. “ Sir: I have the honor to submit the following statement of the condition of the war claims of the state of Pennsylvania, filed in this office under Act of Congress, approved July 27th 1861:— First- instalment, filed March 1st 1862, .... $1,182,997.22 Second instalment, filed June 11th 1862, .... 854,337.29 Third instalment, filed February 20th 1863, . . . 81,084.91 Fourth instalment, filed May 4th 1870, .... 257,933.18 Fifth instalment, filed June 30th 1870, .... 762,129.91 Sixth instalment, filed May 25th 1871, .... 33,737.77 $3,172,218.19 Paid on requisition, No. 5069, September 19th 1861, . . $606,000.00 Paid on requisition, No. 3124, May 2d 1867 (direct tax), . 1,304,711.43 Paid on requisition, No. 3125, May 2d 1867, . . . 78,516.89 Paid on requisition, No. 8511, October 27th 1868, . . 105,651.46 Paid on requisition, No. 4884, August 26th 1870, . . 136,846.09 Paid on requisition, No. 6407, April 11th 1871, . . . 137,822.59 Paid on requisition, No. 6689, May 15th 1871, . . . 242,167.57 Paid on requisition, No. 7122, June 23d 1871, . . . 298,753.08 $2,910,469.11 “ Leaving a balance of suspended claims in this office amounting to $261,749.08. “I am, very respectfully, “ Allen Rutherford, Auditor. “Hon. Geo. S. Boutwell, “ Secretary of the Treasury.” For the Commonwealth, in rebuttal, Governor Iiartranft testified that, when auditor-general, there were a large lot of vouchers in his office, triplicate vouchers in every instance, and in the proper form for collection; defendant called for them three times, the last time with a letter from-Governor Geary. Governor Hartranft had told defendant that he had intended to collect them himself. Defendant said the Act of Congress required them to be paid to an agent of the governor, and exhibited the act. The auditor-general’s department regarded the claims as in proper form for collection. All the money collected on these claims came through defendant. The Commonwealth gave other evidence, not important to be noted. What has been stated, the assignments of error and their answers, with the charge of Judge Pearson and the opinion of the Supreme Court, will sufficiently present the case. The following are points of the Commonwealth, with their answers:— “ 2. The undisputed evidence in this case establishes that the defendant collected the following moneys, at the following dates, belonging to the Commonwealth, viz.: May 2d 1867, $78,516.89; October 27th 1868, $105,651.46, and August 26th 1870, $136,846.69, in all $321,014.44, which sum was largely in excess of any claim he could have had for compensation at that time, and by retention of such excess he forfeited his right to any compensation.’ Answer: “ These sums were collected, according to the evidence, and should have been paid over, less the amount due for collection.” “ 3. The defendant is not entitled to receive any compensation upon so much of the disallowed and suspended claims of the state against the United States as was credited to the state upon the ■claims of the United States against the state.” Answer : “ If the claims referred to were suspended and disallowed, the defendant (if employed so to do) would be entitled to a reasonable compensation for having them allowed and settled.” “5. The undisputed evidence shows the moneys so actually collected by said defendant, and under said joint resolution amount to the sum of $184,168.35, upon which sum the defendant is entitled to such compensation, if any, as the jury shall ascertain to be just, not to exceed ten per cent, thereof.” Answer: “ We do not understand the facts to be as stated in this point, but that, in addition to the sum named therein, the defendant collected $136,846.09, and we see no reason why compensation should not be allowed for recovering that also at the same rate.” . “ 7. The undisputed evidence showing that the defendant received of moneys belonging to the Commonwealth as follows: May 2d 1867, $78,516.89 ; October 22d 1868, $105,651.46, and August 26th 1870, $136,846.09; and only paid thereon to the Commonwealth, July 21st 1871, $29,967.53; the Commonwealth is entitled to a verdict for said three sums, with interest, less amount of said payment, and such compensation as the jury may allow for his services, if any, to be ascertained as hereinbefore directed.” Answer: “ The law is as stated, with this addition, that the defendant is to be allowed a reasonable compensation, not exceeding ten per centum on the sums placed in his hands by the auditor-general, and also for attending to and procuring settlement of the suspended claims of the state against the United States, and having the indebtedness of the state discharged 'on the books of the United States treasury.” The following are defendant’s points with their answers:— 1. “ There is no evidence which shows that the money received by the defendant from the United States was received as a public officer, nor is it shown that the defendant acted in a professional capacity; therefore the plaintiff cannot recover on either of the first, two counts in the narr.” Answer : “We do not consider that the money was received or collected by the defendant as a public officer, or that he was such, but was merely such agent as was created by the appointment of the governor and auditor-general, but that will not prevent a recovery on the first count of the narr” 4. “ The defendant has a right to retain out of the money received by him from the United States as much thereof as amounts to a just compensation legally measured.” Answer: “ This is so, unless the money collected was fraudulently withheld.” * 6. “ The percentage so to be allowed was and is to be counted on all the money recovered or allowed through the exertions of the defendant, whether it was satisfied by a warrant on which the money was actually paid, or by a counter warrant wffiich defalked it upon a claim against the state.” Answer: “ On all of the moneys collected a percentage is to be allowed upon the defalcation, a fair and equitable allowance is to be made according to the difficulties of the settlement and the magnitude of the claims.” Judge Pearson charged: — “ The case under consideration is one of very considerable magnitude both to the Commonwealth and the defendant, as well on account of the money as the principles involved. It is one that has greatly agitated the public mind, and led to not a little newspaper controversy. “ You now know more of the facts of the case than any of the numerous public agitators, as your knowledge is derived from legal evidence, and by that alone will you be guided, discarding all that you have heard by rumor, or gathered from the public press. “ At the commencement of the late rebellion, the state of Pennsylvania raised very considerable bodies of troops, and expended large .sums of money in aid of the national government. The United States assessed against the various states twenty million of dollars, of which Pennsylvania assumed the payment of $1,946,719.33, and was entitled to a deduction of fifteen per centum for prompt payment. She claimed to have advanced the whole sum in the pay and equipment of the troops, but from the evidence it would seem that the vouchers taken were not so formal as required by the laws of Congress and the rules of the treasury department, and were generally suspended or disallowed. It seems, from the testimony of Col. McMichael, to have been well undei’Stood at the department at Washington that the state had in point of fact paid her quota and was entitled to the fifteen per cent., but no entries were made to that effect on the books of the treasury, or settlements closed by the proper officers. The national government also lent the state $606,000 in the year 1862, either in repayment or to enable her 1¡o equip her troops, raise more, or meet loans. Pennsylvania also claimed to have advanced sums from time to time which were to be repaid by the United States. Col. McMichael says that all was well understood by the then secretary of the treasury, but it would seem that at and after that time some difficulty arose, and it is said that our state was urged to make payment of her arrears, leaving out the suspended or disallowed vouchers. At this time an entirely new set of men filled the treasury department, and the former arrangement seems to have been misunderstood or disregarded. On the 22d day of March 1867, a joint resolution was passed authorizing the appointment of a special agent to collect disallowed or ’suspended claims against the United States, and on the same day G-eo. 0. Evans was appointed such agent. Prior to this time, to wit, on the 27th of July 1861, an Act of Congress had been passed authorizing payments by the secretary of the treasury to the governors of states or their authorized agents, the costs, charges and expenses incurred by the states in enrolling, subsisting, clothing, equipping, &c., troops employed in aiding to suppress the rebellion. “ The authority issued from the governor to Mr. Evans in due form, appointing him a special agent to collect the disallowed and suspended claims from the United States, and on the same day Mr. Evans signed an agreement to collect all such money, so far as in his power, and to pay over the same forthwith to the state treasurer, less the commission allowed, and to make annual reports to the state treasurer of the amounts collected, and the sources from which derived; at the same time he gave bond in ten thousand dollars for the faithful performance of his duty. Neither the bond nor agreement were required by law, but were taken by the governor for the greater caution. Under this appointment several collections were made and paid into the treasury of very considerable sums, of which you will have statements, and all of the suspended and disallowed claims were finally settled at the accounting department of the United States, amounting in all to perhaps some two million of dollars. At an after time, to wit, on the 30th of March 1870, on the solicitation and advice of the governor, the auditor-gen eral placed in the hands of Mr. Evans, the vouchers, showing claims by this state against the federal government to a very large amount. These sums will be laid before you. The auditor-general had contemplated settling these claims himself,but on looking into the subject, it became very clear that it must be done by an agent of the governor, and it was believed that there was little time to lose. “ [The auditor-general, therefore, gave them over to Mr. Evans, under an agreement that he was to have a compensation of ten per cent, for their collection, such being his construction of the resolution of March 22d 1867. It was further agreed that Evans should be paid travelling expenses, printing, stationery, clerk-hire, &c., for preparing the claims for settlement, and if nothing was realized, no compensation to be allowed.] The governor on the 13th of April addressed a letter to the secretary of the treasury, showing that he had appointed Mr. Evans his duly authorized agent to settle these claims. This was ultimately done by him to the satisfaction of the state department, so far as shown. We have no doubt of the power of the governor to make the appointment of the special agent, under the resolution of the legislature, and we also think that the auditor-general could employ an agent when necessary, and for the interest of the state, by virtue of his office. He most clearly could have done it in the present case with the sanction of the governor, who had full power to do it by himself under the statute. We do not believe, that either the governor or the auditor-general had power to bind the state to make compensation beyond the amount fixed by law, and the actual sum to be paid must be determined by the court and jury. In the course of these various settlements, there came into the hands of the defendant the following sums: On the 1st day of May 1867, $78,516.89; on the 28th October 1868, $105,651.46; and on the 27th of August 1870, $138,846.09, making in all, $321,014.44. Of this, Mr. Evans claimed for percentage $291,046.91, and paid into the treasury $29,967.53, and it is to recover the above-stated balance of $291,046.91, that this suit was brought. The Commonwealth claims that the defendant is not entitled to any percentage whatever, that he has forfeited all title thereto, by failing to pay over the money which came into xhis hands, or to render an account thereof to the proper department. He says, and so testifies, that the governor was made acquainted from time to time with all his doings, and that the same was not made public, lost their course of settlement might be defeated, and the interest of the state jeopardized. He has fully explained to you his reason for that course, and it is for you to judge of their truth and plausibility. “ [We state to you, as a rule of law, that if an agent or attorney collects a sum of money and fails to give his principal notice thereof, or to pay it over in a reasonable time, but fraudulently converts the same to his own use, he can recover nothing for his collections. If, in the present case, the defendant fraudulently set up a claim for fees to which he was not entitled, with a view of retaining the money, or for any other purpose, he can recover nothing.] Such we understand to be the rule of Balsbaugh v. Frazer, 7 Harris 99, and of several other cases. If, on the other hand, he honestly and fairly claimed the money in his hands as compensation for collections and settling the accounts between the state and the United States, although you might think that he claimed too much, yet you are not on that account to declare the whole compensation forfeited, but will fix the amount fairly due, allow that, and render your verdict against him for the residue. “ The character of this case was well calculated to raise a difficulty as to the compensation. It was doubtful if the agent should be paid his percentage merely for the money collected, or on all claims settled and allowed. Whether on the large expenditures of 1861, the vouchers for which had long been on file, but rejected and disallowed, or merely for what came into his hands in the form of cash, and was paid into the treasury, and whether it should also embrace the vouchers and claims handed over by the auditor-general. If business-men might, on the wording of this resolution, honestly differ as to whether the percentage should be paid on the whole or only a part, it might seem extremely harsh to forfeit the whole compensation. But for intentional fraud practised the forfeiture will be enforced. That is one of the first questions for you to decide. It is contended, however, on the part of the state, that the agent was obliged by law to pay the whole of the money into the treasury, and then look to the accounting department for an allowance of his percentage. Such is not the law in the ordinary case of principal and agent, or attorney and client, and we can see no good reason for a different rule here. The resolution of the legislature contemplates that the agent shall be ‘ paid out of his collection.’ The agreement of Mr. Evans, made contemporaneously with his appointment, binds him to pay into the treasury the money collected, ‘ less the commission allowed,’ which shows what was understood by both parties. Had the money been paid into the treasury, and a large sum be determined by the department to be due the agent for collections, it could not be paid over, but must be reported to the next legislature for a special appropriation. We instruct you that the agent was not bound to pay the percentage due him into the state treasury, but should have paid over all, less that sum. In stating his account, Mr. Evans claimed ten per centum on all of the government claims which passed through his hands, and paid into the treasury $29,967.53, which he admitted to be due. For the defendant it is contended that the law gives ten per cent, on all that was either collected or settled and allowed; that when a sum is named, as here, not' exceeding t$n per cent., the whole can be claimed ; that the party to receive has a right to so construe the words as to give him the whole allowance, and that such has been the uniform usage under laws so worded. There is no proof before us of any custom, although we may well suppose that the receiver' generally got all that was in his power. .“We must therefore put a construction upon the words of the statute. If the legislature had intended to give ten per centum for the service, it would have said so. When the words used are, ‘not- exceeding ten per cent.,’ it shows that less may be paid and considered a sufficient allowance. The true sum must first be fixed, ordinarily by the accounting department, and ultimately by a court and jury. You must decide what is a fair allowance, not exceeding ten per cent. You will take into consideration that if nothing was recovered, nothing could be paid, and when men labor on such a contingency they are generally allowed more in case of success than when they are to receive compensation, even if unsuccessful. The testimony is to that effect in the present case. Mr. Evans says he would not have undertaken on that contingency for a less sum, and one other witness fixes the same amount. Taking it for granted that the joint resolution intended to allow a percentage on dll money collected from the federal government and paid into the state treasury on disallowed or suspended claims, does it prove that the same sum is to be retained for merely making a settlement of mutual demands which balance each other, and where little, if anything, is paid by either party ? We do not so construe the resolution. The evidence shows that a large expenditure took place by the state' for the benefit of the nation, and the justice of remuneration was acknowledged. The whole account was most carefully made out and presented at the United States treasury, but the vouchers were so irregular as to lead to their rejection and disallowance. The resolution recites that, by carefully supplying deficient testimony, many of the sums can be collected. The testimony of Mr. Evans shows that no new or additional proof was procured, or new vouchers obtained; but, by taking up the accounts as prepared by Colonel McMichael, and carefully explaining them to the auditor and controller of the treasury, the whole was ultimately allowed and settled. “ [Mr. Evans states that he spent some twenty days in completing this arrangement, having the whole sum set off against the claims of the United States, and all finally settled on the books of the department. For this service we do not consider that Mr. Evans is entitled to receive the percentage mentioned in the resolution. His labor is very different from that bestowed on the other claims, and his responsibility falls greatly short of that arising from receiving and paying over large sums of money. The services do not come within the words or intention of the resolution. Yet for this valuable service Mr. Evans is not to go unrequited, although perhaps not entitled to ten per cent, on nearly two millions of dollars, or at least considerably over one million, he should be paid liberally. You can allow him a reasonable percentage or a lumped sum. Pay him well according to his skill, labor and success, but we cannot believe that for such services he is entitled to over one hundred thousand dollars as claimed. His remuneration is a question for you.] Take into consideration the evidence of Col. McMichael that at one time the account of the state was all allowed ; then- that it was found rejected on the books, and payment demanded of the alleged indebtedness of this state, at which the then Governor Curtin expressed great surprise that it was persisted in, and the account never finally settled and closed until effected through the instrumentality of Mr. Evans. “ We come next to consider the claims placed in the hands of Mr. Evans by the auditor-general under the solicitation, of the governor, and pursuant to his appointment. The vouchers General Hartranft thinks were reasonably correct in form, but not set forth in any regular account; were filed away in pigeon-holes and received and arranged by Mr. Evans. They amount, according to our estimate, to some $815,589.33. The whole of this claim was settled and allowed. For this service it is pretty clear that the auditor-general expected the agent would be paid not exceeding ten per cent., but as much less as that officer might deem right. The claim did not come before him for allowance, but is now before you in a common-law action. You must fix the amount and can say that it shall be three, five or ten per cent., as you may think just and reasonable. We do not consider that in making this settlement Evans was the agent of the auditor-general alone (for as such he would not have been recognised at Washington) but of the governor also. He makes his settlement in the latter capacity, and claims pay under the resolution of the legislature as a special agent. Allow what you consider right under all of the circumstances. There is one demand for percentage .amounting to over $60,000, the justice of which we are .unable to perceive. It is said to be claimed on account of the $606,000 lent to the state by the United States. That money was not collected for, but was due by Pennsylvania to the United States; as such it was not collected but paid. True, there may have been a set-off against it in the indebtedness due to the state; but if so, that was settled in some of the claims already referred to, either by an offset against the. vouchers from the auditor-general’s office or some of the large expenditures of 1861. Both of these we have already directed you to settle. In the form spoken of, this is indisputable; it may be demanded as making up the sums already recited ; is not claimed in that form and was mentioned incidentally. “ The defendant avers that the plaintiff is not entitled to recover, because in the first count of his narr. it sets forth that the defendant collected the money for the Commonwealth in his professional employment, as attorney in fact, and agent of the Commonwealth. In the second count, for so much money had and received by the said defendant as a public officer, and in the third, that he is indebted on an account stated. We are of the opinion that there is no evidence of an account stated between the parties which would support the third count, and that the defendant is not a public officer as averred in the second count. We have heretofore decided, and now instruct you, that the authority issued by the governor to Mr. Evans did not make him a public officer. He was merely a special agent. We had occasion to examine into that subject very carefully some time in the latter part of 1871, and delivered an elaborate opinion, to which we still adhere, but shall not now consume our time or your patience in discussing it again. Your verdict cannot be in favor of the state on either of these counts. The first count we consider substantially supported, so far as relates to the receipt of the money as an agent, but whether in his ‘ professional employment’ or merely as a ‘ special agent’ for the particular service, must be determined by you. The act abolishing imprisonment for debt excludes from relief persons receiving money as ‘ officers, or for any misconduct or neglect in office, or in any professional employment.’ It is contended by the defendant that he was not engaged in any professional employment, and therefore should not be declared against in that capacity, as it would subject him to imprisonment for any sum found against him. The plaintiff’s counsel contend that the money was received by the defendant in his professional employment, as an attorney in fact, and agent of the Commonwealth. That he received it as an agent of the state is very clear. There are certain professions which are undoubtedly covered by the words of the statute — that of attorney at law — neither of the others, designated as learned professions, perhaps come within the statute, as. they have little to do with collecting money for others. We are inclined to think that there may be other ‘ professional employment.’ Aman may be a professional claim agent, having a license for their collection. He may be a professional agent for procuring patents or pensions, follow either as a business, and would probably come within the Act of Assembly. In the present case the defendant states that he never was employed in settling up claims before or since; that he merely acted as a special agent, under the power of attorney issued by the governor, and that it was not his professional employment. Whether he is subject to imprisonment for failing to pay over money received in a.fiduciary capacity is not to be determined at present. If the question had to be decided by the court whether this money was collected by the defendant in his professional employment as an agent, and we came to the conclusion that it was not, we would direct an amendment of the narr., by striking out the averment. We would correct the declaration to correspond with the evidence. But in our opinion it is a question for a jury. You can find the fact specially, and we will put your verdict in form. There is certainly little if any evidence tending to show that the defendant was a professional agent, or followed the general business of acting as an attorney in fact, as is the case with many persons who act as general land agents, and hold themselves out to the world as such. Every question can be fully met by a special verdict. “ If you find that a sum of money is due to the state by the defendant, it will bear interest from the time it was received, and should have been paid into the treasury. This, with the answers to the points, will cover the whole case, and the facts- require your careful deliberation.” The jury returned this verdict: “ The jury find in favor of Commonwealth of Pennsylvania, on the first count, in the sum of $149,726.53, and that the defendant was not an officer or professional agent, but received the money in trust, as a special agent appointed by the governor of the Commonwealth, pursuant to the provisions of the joint resolution of the legislature, passed the 22d day of March 1867, as per appointment made on the 22d March 1867, and by John E. Hartranft, then auditor-general, on the 30th day of March 1870, pro ut said appointment made part of this verdict, and we find that the second and third counts of the narr. are not supported by any evidence in the case.” Judgment was entered on the verdict April 7th 1873. Each party took a writ of error. The Commonwealth assigned for error: That the court erred in the answers to the Commonwealth’s and defendant’s points, as above stated, and the parts of the charge in brackets; also in overruling the offer of the settlement by the accounting officers. The defendant assigned for error the rejection of his offers of evidence.
74 Pa. 143Coover's Appeal (1873)
74 Pa. 149Levick v. Brotherline (1874)
1. Unseated land sold for taxes in a senior warrantee’s name is redeemed by the payment of the taxes, &e., by a junior interfering warrantee ; the redemption enures to the benefit of the true owner. 2. The party redeeming can not defeat the redemption by withdrawing the money after the time for redemption has passed. 3. A married woman, her husband not joining, conveyed her land to Levick, who went into possession; she and her husband afterwards conveyed to Brotherline for §500, on the representation that they were perfecting the title of Leviek. Reid, that if they executed the deed relying on the representations, it was void notwithstanding the money consideration. 4. In an ejectment for the land by Brotherline against Leviek and others, Leviek could set up the fraud in avoidance of the deed. 5. Shearer v. Woodburn, 10 Barr 511, -followed.
74 Pa. 159Wilson v. Martin (1873)
Error to the Court of Common Pleas of Juniata county: Of May Term 1873, No. 79. This was an action of assumpsit, brought August 26th 1871, by William W. Wilson against Amos H. Martin, executor, &c., of Joseph M. Belford, deceased. The cause of action arose under the -following circumstances, evidence of which, under objection and exception, was received by Junkin, P. J., on the trial of the cause December 5th 1872. Sulouff, Frow and Parker had executed to the plaintiff a note as follows:— “ One day after date we or either of us promise to pay to William W. Wilson or order the sum of Twenty-six Hundred and Twenty-five Dollars, for value received. “ Witness our hands and seals this 14th day of May 1867. $2625. Jacob Sulouee, Thomas J. Frow, Thomas U. Parker, [l. s.]” s.] s.] The note havingbeen due about eighteen months, Frow, in company with the plaintiff, told Belford, the decedent, that plaintiff held this noto against them, but if they would give him security they might hold the money for some time, and Frow asked Belford if he would go security. Belford said “ Yes.” The note was presented, and Belford said : “ There is no room for me here to sign this note. I suppose it will do as well if I sign the note on the back.” About the time he was going to sign the note, plaintiff said: “ Now, the understanding is, you are going on this note as security.” Belford replied, “0 yes, sir,” and signed his name on the back of the note, thus, “ J. M. Belford,” without anything more. The court instructed the jury that the plaintiff could not recover, * * * “ 1. Because the endorsement of Belford on this sealed note creates no liability whatever. “ 2. Because the plaintiff, in order to establish a liability or undertaking on the part of Belford to pay this debt of Sulouff, Erow & Parker, is compelled to resort to. parol evidence, and as this is offered to show the former’s undertaking to pay the debt of another, it is inadmissible for that purpose, the Act of 26th April 1855 forbidding. Jack v. Morrison, 12 Wright 113; Schafer v. Bank, 9 P. E. Smith 144, show “ that an endorsement is not a note in writing, as required bythe statute,” and “ that no proof of liability for the debt of the maker different from that ■which the endorsement imports, can be made by parol.” The offer here is to show that when Belford wrote his name across the back of this sealed note, he agreed that it. should bind him all the same as if his name had been signed below Sulouff, Frow & Parker’s, and this cannot be done; it would be establishing Belford’s liability by parol, and not by the writing itself.” * * * The verdict was for the defendant. The plaintiff took a writ of error, assigning for error the instruction of the court.
74 Pa. 162Buffington v. Summit Branch Railroad (1873)
Error to the Court of Common Pleas of Dauphin county: No. 72, to May Term 1873. This was an action of ejectment brought June 2d 1869, by Lee W. Buffington and Sarah R. his wife, Rebecca M. Robertson, George G. Wheelock and Margaret his wife, Catharine Robertson, Robert H. Robertson, James T. Carter and Mahlon K. Taylor, against The Summit Branch Railroad Company, Joseph Anthony and William E. Ray, for a tract of 300 acres of land. The same title was passed upon in Buehler v. Buffington, 7 Wright 278, where the whole facts of the case are given. This case was tried November 25th 1872, before Pearson, P. J. Both parties claimed under Daniel Williams, who died on or about the 9th day of December 1797, on which day his will, dated May 2d 1794, was proved. He directed that “ all just accounts and demands brought in against me or my estate, to my executors in due and lawful time, be paid.” After giving a number of legacies and devising a house and lot in Philadelphia, he further provided:— “And respecting the residue and remainder of my estate, in possession, right or expectancy, I order and empower my executors hereinafter named, and the survivor of them, to sell and dispose of the same, at private or public sale, and to make such title-deeds or conveyances to the buyers as I could do, and the money arising therefrom to be applied to pay the debts and legacies above. Then the residue and remainder of my estate I give to my said daughter Sarah, and son Daniel equally, share alike. “ And I do hereby appoint my aforesaid daughter, Deborah Field, my daughter Sarah and said son Daniel, to he the executors to this my last will and testament.” Letters testamentary were issued to all the executors. Sarah .afterwards married John Moulston. On the 19th of December 1801, John Field (the husband of Deborah, one of the executors) commenced an action in the Supreme Court against “ Sarah Moulston, executrix of Daniel Williams and John Moulston, her husband, and Deborah Field, executrix of Daniel Williams, who survived Daniel Williams, the younger, also executor.” The writ was returned, “ Served on Deborah Field and nihil hahet as to the other party.” On the 29th of December 1801, “judgment by consent of Mr. Brinton, counsel for Deborah Field, 7937 4s. 6c7” In September 1803, a scire facias on this judgment was issued by-John Field against “ Sarah Moulston and husband and Deborah Field, executors of Daniel Williams, and returned “ Made known to Sarah Moulston.” On the 29th of July 1807, the death of Deborah Field and the renunciation of Sarah Moulston were suggested, and Clayton Earl and Thomas Mitchell, administrators d. b. n. c. t. a., were substituted as defendants. The case was referred to arbitrators, who, on the 13th of January 1808, awarded for plaintiffs 10807 6s. Id., and “ do not find any assets.” After exceptions to the award it was confirmed, and judgment entered on it April 2d 1808. Under a testatum execution to Dauphin county, the land was returned sold to John Field for $212.19, October 15th 1808, and deed made to him by the sheriff, and acknowledged June 1st 1809. The plaintiffs by a number of intermediate conveyances derive their title from John Field The defendants gave in evidence deed December 1st 1806, from John Moulston and Sarah his wife to George Moulston, she conveying as executrix for all the lands of Daniel Williams, including the tract in dispute; and reconveyance, September 29th 1807, to Sarah Moulston; devise April 10th 1833, of the premises, by Sarah Moulston to her children John and Deborah. ■ Deed September 26th 1835, John and Deborah Moulston to Henry Buehler. Patent March 29th 1837, to Henry Buehler. The defendants then gave in evidence the record of the suit reported in 7 Wright 278. Also record of the trial, March 23d 1863, when plaintiffs suffered a nonsuit, and evidence deducing the title from Buehler, after the decision of the former case, to the present defendants. Judge Pearson, amongst other things, charged:— * * * “We come now to a much more difficult and important branch of this case: had the debt due to John Field by Daniel Williams ceased to be a lien on his land at the time of the sale ? If it had, the sheriff’s deed confers no title. Prior to the 19th of April 1794, the lands of decedents were, to all intents and purposes, considered chattels for the payment of debts, and the lien thereof was indefinite as to time and extent, but embraced all the real estate of the decedent within the Commonwealth. On that day an act was passed limiting the lien as to time, but not as to extent. The statute requires that a demand shall be made, or an action for the recovery of the debt be commenced, and duly prosecuted against the executor or administrator, within the period of seven years from the death of the debtor ; or where the debt is not payable, a copy filed in the office of the prothonotary of the county where the lands lie, within that time. This act, with a slight alteration, was re-enacted on the 4th of April 1797. The original law was in force when Daniel Williams made his will, and therefore his debts came within its provisions. “ Was the proceeding of John Field,' against the executors of Daniel Williams, in time to keep up the lien given by law against the estates of decedents ? * * * Everything connected with the case was a nullity, and when a regular judgment was obtained, the lien on the land was gone twice over. We considered on the former trial that the claim against the land was kept alive by the provisions of Daniel Williams’s will,buttbe Supreme Court decided that this debt was not brought against the estate, ‘ in due and lawful time,’ and therefore could not be paid. That decision is conclusive on us, and our instruction is binding on you. We therefore say, that Field’s judgment was not a lien on this land, consequently the plaintiffs have no title, and cannot recover. Their whole title depends on the judgment, and the sheriff’s deed under it. * * * We consider that every question of any moment connected with this title, wras settled by the Supreme Court on the former trial. On the faith of that decision, the land passed through many hands, at very high prices, and purchasers should feel that they could rely on the decisions of our court of the last resort, either in buying or improving. Stare decisis is a very important principle in regard to land titles, and one to ■which the good of the country requires that we should yield, whether it coincides with our original opinions or otherwise.” * * The verdict was for the defendants. The plaintiffs took a writ of error and assigned the charge for error.
74 Pa. 166Moist's Administrators' Appeal (1873)
83, to May Term 1873. In the estate of Moses Moist, deceased. This proceeding commenced by exceptions to the administration account of M. E. H. Kinsel and W. R. Bratton, administrators, &c., of Moses Moist, who died in 1868. The contest was as to the propriety of the credit in the account of an item of $400 paid to Jonas Moist and Joseph Moist, who were surviving partners of the decedent.
74 Pa. 168Bergner v. Thompson (1873)
Error to the Court of Common Pleas of Dauphin county: No. 19, to May Term 1873. This was an action of assumpsit .brought February 24th 1870, by William G. Thompson against George Bergner. The plaintiff was the owner of the State Capital Hotel, and also of the City Hotel, in the city of Harrisburg. Being much embarrassed, he entered into a negotiation with the defendant for the sale of the City Hotel. A sale' was consummated to the Pennsylvania Railroad Campany, and $7000 of the purchase-money received by the defendant. The plaintiff alleged that the defendant was his agent, that the proceeds were to be applied to the payment of his debts, and that after their payment, there remained a balance belonging to plaintiff in the defendant’s hands, to recover which this suit was brought. The case was tried March 21st 1872,-before Pearson, P. J. The plaintiff gave in evidence the records of two judgments against him in favor of the defendant — one for $3000, entered in 1868, and the other for $4000, entered in 1869; also a payment to defendant of $1538.46, May 8th 1869, and of $1000, August 26th 1869; also a payment of $7000 to the attorney of Bergner from the Pennsylvania Railroad Company, for which a receipt was entered on the record of the judgments; there was evidence also of other payments. The defendant, amongst other things, 'testified that he had a book account of $682.96 against the plaintiff, and that there were other accounts between them, and on a settlement of these accounts there was a balance of $818.35 due to Thompson, which was credited on the $3000 judgment; he afterwards credited the $1000 to plaintiff, and then issued execution to make himself secure; there was no more paid. A. J. Herr, Esq., testified that he was the attorney-at-law of plaintiff; Kirk Haines came as Thompson’s friend and they went to see defendant; “ Haines proposed to have this settled; said to Bergner we will give you $13,000 for the City Hotel property, and burn the books. Bergner agreed to it. Thompson said he would make the deed to the Pennsylvania Railroad Company, not to Bergner.” The defendant testified: “ To save additional expense, Thompson agreed to make a deed to the company for $20,000. I agreed to give them the title for $20,000; I agreed to give $13,000, cancel all claims, and burn the books. I effected the sale at $20,000. I had no further trouble. * * * I received my $7000 from the Pennsylvania Railroad Company; the rest went to Thompson’s creditors. The judgments were satisfied ai.d books credited in full. The $20,000 never went to Thompson.” Kirk Haines testified: “ Thompson said he was in trouble; Bergner had issued execution against him; said wished me to help to get this fixed up; had several persons negotiating with Pennsylvania Railroad Company; sheriff came; Herr spoke of arrangements through Bergner; could not sell at $24,000 ; came down to $20,00; we went to Bergner’s; we had fixed on $20,000; Thompson said Bergner had $7000 against him; that was to come off the $20,000; to pay $20,000 ; $7000 to come off; the sum to be paid was $20,000; $7000 to come off to pay the judgments; I don’t recollect burning the books being spoken of.” The plaintiff testified: “ I never sold the property to Bergner for $20,000 ; the draft to Bergner was to pay his judgments; the $13,000 was applied to other judgments.” There was in evidence deed of January 10th 1870, plaintiff to Pennsylvania Railroad Company, for City Hotel; consideration $20,000. There was other evidence stated in the opinion of Judge Mercur. Judge Pearson, after stating the facts, charged:— “ It is contended here that this over-payment arose out of the sale of the property to the railroad company, and that Bergner was to have, in discharge of his debt, all that the property would sell for above $13,000; that sum was paid to Thompson, and the residue of $7000 to Bergner. The latter claims that he bought the tavern-stand for $20,000, sold to him by Messrs. Herr and; Haines as agents of Thompson; the one was an attorney at law, and as such had no power to sell; the other was an agent by parol, and from his statement it is by no means certain what he meant or intended. Thompson and wife refused to make the deed to Bergner, but made it directly to the company. The judgments of Bergner were paid off out of this purchase-money, without his having given credit for the previous payment, and this suit is brought to recover that money, received, but never credited. The $7000 were not paid to Thompson, but to Detweilor, Bergner’s attorney, and by him applied on the judgment still standing open, without having entered on them the previous payments. In that way they were overpaid. [The attorney for the defendant contends that, as there was no mistake, this money cannot be recovered back. We think otherwise. The action of assumpsit is a most liberal and equitable one ; will lie whenever one man has received money which, in equity and good conscience, belongs to another. This over-payment was not made under any decree or order of court; was not collected by execution, but came into the hands of the'plaintiff’s attorney in the judgment through the purchaser of the house and lot, and was applied by him. Thus Bergner has received the money twice, and cannot .retain it with a good conscience. This is the proper form of action in which to recover it back.] It is said that Bergner was at trouble and expense in effecting the sale of the property to the railroad eompany, which was doubtless the case, and for which he should be liberally paid. Make him a full and fair allowance in settling the claim, and find your verdict for the balance, if anything, which he was overpaid on the judgments.” The counsel here inquired of the court whether Bergner could claim the property on the arrangement with Herr and Haines, or the money received of the railroad company above $13,000, and asked the court to charge the jury on that point, to which the court answered that “ [He certainly could not claim the property; there was no legal authority in these alleged agents to sell it to him, and we cannot look on the contract as ratified by Thompson, as he refused to execute the deed to him, but made it to the company. To say that the right to the purchase-money would pass, is the same in law and substance as to give the estate; therefore we could see nothing in the evidence which would permit Bergner to hold the money above the $13,000. His right is to compensation, not to take the property or purchase-money.]” The verdict was for the plaintiff for $1663,46. The defendant sued out a writ of error: — he assigned for error the parts of the charge in brack ets.
74 Pa. 173Hill v. Hill (1873)
Error to the Court of Common Pleas of Blair county: Of May Term 1873, No. 63. This was an amicable action and case stated, in which Marcus L>. Hill and Sarah A. Hill his wife, in her right, were plaintiffs, and Ezra H. Hill was defendant. The action was instituted February 23d 1871. The facts appearing by the case were as follows:— Henry Lee, who died in or about April 1869, by his will dated in January of that year and proved in the succeeding April, amongst other things devised as follows:— “ I give and bequeath to my daughter, Sarah Ann, wife of Marcus Hill, and Nancy Jane Stewart, wife of Alexander Stewart, all the remainder of my real estate, to be divided equally, share and share alike, except that if my wife should die first, my daughter, Sarah Ann Hill, to have the mansion-house, with the enclosure around the same, over and above her share. And it is my will, and I do order and direct that my daughter, Nancy Jane Stewart, is to have the use of one-half of the barn for ten years, should the barn fall to that part of the place, by a division, on which the mansion-house stands. It is my will, and I so order, that should my daughter, Sarah Ann Hill, die, leaving no issue or child, that her share, as above bequeathed to her, shall fall back to my estate and be equally divided, share and share alike, to Ann Y. and Fanny K. Lee, daughters of my son J. H. Lee, and Ada Y. and James H. Stewart, children of my daughter Nancy Jane Stewart. And it is my will that if my daughter Sarah A. Hill, and Nancy Jane Stewart cannot agree as to a division of the real estate bequeathed to them, that John Cummins, Samuel Mitchell and John Jackson shall make said division, which division shall be final and conclusive.” * * * “Item. — I give and bequeath to my daughter, Mary E., wife of Andrew Smith, of the state of Ohio, the sum of $5000, to be paid as follows, &c.:— * * * “ The above five thousand dollars is to be paid out of my personal estate, should there be a sufficiency; if not, then the balance is to be paid by James H. Lee, Sarah A. Hill and Nancy J. Stewart out of the real estate in proportion to each valuation. It is my will that, after my decease, all my personal property not already devised, shall be appraised and sold, and the proceeds applied as above ordered.” * * * A division was made in pursuance of the provisions of the will, and Sarah A. Hill and Nancy J. Stewart took possession of their respective parts. On the 2d of January 1871, Sarah A. Hill and her husband, the plaintiffs, entered into articles of agreement with Ezra H. Hill, the defendant, to sell him, in fee simple, a part of the tract set-apart to her, he to pay to the grantors on the 10th of February then next $400. On that day the plaintiffs tendered to the defendant a deed for the premises, and demanded payment of the purchase-money. He declined to accept the deed and pay the purchase-money on the ground that plaintiffs could not convey a fee simple in the premises. The question for the opinion of the court was, whether the plaintiffs were entitled to recover the purchase-money; if so, judgment to be entered for the plaintiffs for $400; otherwise judgment to be entered for the defendant. The court entered judgment for the plaintiffs according to the case stated. The defendant removed the record to the Supreme Court, and assigned for error that the court so entered judgment.
74 Pa. 176American Life Insurance v. Isett's Administrator (1873)
1. In an action on a life policy, the assured having taken his own life, and the allegation being that he was insane, the court charged: “ If the assured was not conscious of the act he was committing, but acted under an insane impulse or delusion sufficient to impair his understanding or will, or if his reasoning was so far overthrown by his mental condition that he was incapable of exercising his judgment in regard to the consequences, the defendants are liable.'1 Held not to be error. 2. A point was : “ If F. B. Isett, at the time of his death, was conscious that his death would follow the discharging of the pistol in his own hands, there can be no recovery, although he was laboring under mental depression or disturbance of the mind.” The court below negatived the point. Held not to be error. 3. Harrington v. Keystone Insurance Co., 9 Harris 466, remarked on.
74 Pa. 181Hersh v. Northern Central Railway Co. (1873)
Error to the Court of Common Pleas of Lancaster county: Of May Term 1873, No. 63. This was an action of assumpsit, brought August 15th 1866, by Edward Hersh, who survived John Hough, trading as Hough & Hersh, against the Northern Central Railway Company. The suit was originally brought in the Court of Common Pleas of York county; and under the 1st section of the Act of April 14th 1834, Pamph. L. 395, 2 Brightly’s Purd. 1227, pi. 72, it was removed on the 23d of January 1869, to the Court of Common Pleas of Lancaster county. The suit was brought to recover back tolls, &c., paid by the partners to the defendants alleged to be in excess of the rates allowed by law. In Lancaster county it was referred, under the 3d section of the Act of June 16th 1836, Pamph. L. 717, 1 Brightly’s Purd. 78, pi. 4, to George M. Kline, Amos Slaymaker and William Leaman, Esqs., reserving matters of law arising for the decision of the court; the report of the referees to have the same effect as a special verdict. The referees found the following facts amongst others:— “ The partners had been engaged in the business of mining coal, in Northumberland county, from 1860 to November 1865, as lessees of the Susquehanna Coal and Coal Mountain Company. The Northern Central Railway Company, the defendant, is lessee of the Shamokin Yalley and Pottsville Railroad, under a lease executed by the Shamokin Yalley and Pottsville Railroad Company on the 27th day of February 1863. The road so leased extends from Mt. Carmel to Sunbury, a distance of twenty-eight miles, and was originally built from Sun-bury to the town of Shamokin by the Danville and Pottsville Railroad Company, incorporated April 8th 1826. Under the supplements to the charter of the Danville and Pottsville Railroad Company, a branch road was subsequently built, about the year 1855, to Mt. Carmel, a distance of about eight miles. In the year-, the Locust Gap Improvement Company constructed a lateral railroad upon the lands lying east of the Shamokin Valley and Pottsville Railroad from their colliery to the line of the said railroad, connecting therewith at a point called Locust Gap Intersection. “ The said lateral railroad extended about fifty feet over the lands of the said Locust Gap Improvement Company,” and the residue of its length over the lands of the Susquehanna Coal and Coal Mountain Company, across which a right of way had been granted. At the time of the construction of the said lateral railroad there was no connection therewith eastwardly, but in that year the Mine Hill and Schuylkill Haven Railroad, was extended so as to form a junction with the said lateral railroad at its eastern terminus near the collieries of the said Locust Gap Improvement Company, making a continuous line of railroad communication from Locust Gap Intersection to Philadelphia. The colliery of the plaintiffs was situated on the line of the Shamokin Yalley and Pottsville Railroad west of Mt. Carmel, and distant from Locust Gap Intersection about If miles, or 9231 jfeet. It was opened about 1854, and the breaker thereof erected in 1854 or 1855. From February 27th 1863, to -, the plaintiffs shipped over the road, so leased to the defendant, coal from the said colliery as follows, to wit: To Locust Gay Intersection, If miles (or 9231ft.) 61,540,03 tons. “ Shamokin Furnace, 7 “ 2,860,19 “ “ Sunbury, 26 “ . . 10,588,09 “ H:' Hí Hi Hi Hi Hi The shipments of coal to Locust Gap Intersection and Sunbury were in transit to markets beyond those points, being carried on the cars of the Philadelphia and Reading Railroad Company and the Schuylkill Navigation Company for the eastern market by way of Locust Gap Intersection, and in cars owned by the Northern Central Railway Company, or cars furnished by it, for the western market by way of Sunbury. The Northern Central Railway Company never supplied any cars for transporting coal from the collieries about Shamokin and Mt. Carmel to the eastern markets. The Philadelphia and Reading Railroad Company delivered the cars for that traffic at Locust Gap Intersection on sidings prepared for the purpose. Thence they were taken by the Northern Central Railway Company, distributed to the various collieries in allotments designated by the Philadelphia and Reading Railroad Company, and, after loading, returned to the Philadelphia and Reading Railroad Company at Locust Gap Intersection. * * * For the shipments of coal above specified, the plaintiffs paid to the defendants, as follows, viz.:— For 61,540,00 tons gr. to Locust Gap Intersection, $15,746.84 “ 2,860,19 “ “ Shamokin Furnace, . 809.15 “ 10,588,09 “ “ Sunbury, . . 8,015.88 The defendant carried merchandise, &c., from Sanbury to Mt. Carmel for the plaintiffs, and received therefor, as follows:— 1863— 184,572 lbs., . . Amount paid $170.01 1864— 160,902 “ “ “ 198.33 1865— 27,274 “ . “ “ 37.05 372,748 (or 186J tons.) Amount paid $405.39 The rates for charges for toll and transportation between different points on the Shamokin Valley and Pottsville Railroads were fixed by the general superintendent of the Northern Central Railway, residing at Harrisburg. The rates so fixed were published on “toll-sheets,” which were posted in the offices of the company at the various stations. The operators were notified of these rates by letter or printed circular. The rates were charged for shipments made after the date of their going into effect, and till altered by the general superintendent. ‘ In accordance with the toll-sheets, the bills for coal transported were made out by the agents at the various stations, from returns of tonnage received from the weigh-masters, and presented for payment to the operators. The bills were for coal shipped prior to their presentation, and after the service of the company had been rendered. Bills were made out and presented monthly, or semi-monthly, to the plaintiffs, by W. P. Withington, agent at Shamokin station, in the years 1863, 1864 and 1865. He sent the bills to the plaintiffs at Mt. Carmel, who returned them to the agent with their check. The bills were then again forwarded to the plaintiffs receipted. The following rates per ton for freights, from the plaintiffs’ colliery to Locust Gap Intersection, appear on the “toll-sheets ” of the following dates, viz.:— April 13th 1863, . . 23 cts. per ton. Sept. 1st 1863, Feb. 1st 1864, 23 May 16th 1864, 28 Sept. 1st 1864, 32 June 1st 1865, 28 Oct. 1st 1865, It is usual for railroad companies to charge higher rates for transporting freights short than long distances, for the reason, that the number of men employed, the time consumed, and the incidental expenses incurred, are proportionally greater. The rates and charges for tolls and transportation on the Shamokin Valley and Pottsville Railroad were established under the provisions of Acts of Assembly. The third section of an act supplementary to an act entitled “ An Act incorporating the ‘ Danville and Pottsville Railroad Company,’ ” approved April 11th 1848, provides:— “ That the rates for toll and transportation may be fixed and regulated in such manner as the company may deem most advisable: Provided, however, That the maximum charges for toll and transportation on the said road shall not exceed four cents per ton per mile for freight.” (Pamph. L. 1848, 541.) The second section of an act supplementary to an act, entitled “ An Act -to incorporate the Danville and Pottsville Railroad Company,” approved April 2d 1850, provides :— “ That the proviso to the third section of the said act be and the same is hereby amended so as to read, ‘ Average charges for toll and transportation,’ instead of the ‘maximum charges.’ ” (Pamph. L. 1850, 298.) Average charges for toll and transportation, when the rates per ton per mile are not uniform for all distances which freights may be carried, are understood by those engaged in the operation and superintendence of railroads in the state of Pennsylvania, and familiar with making out “toll-sheets” and rates of charges, to signify charges made at a mean .rate, obtained by dividing the entire receipts for toll and transportation by the whole quantity of tonnage carried, reduced to a common standard of tons moved one mile. An example will make clear the meaning and method of reaching an “ average rate.” Given a road thirty miles in length, and let the ratos per ton per mile vary for different distances, to wit: for ten miles, ten cents per ton per mile; for twenty miles, four cents per ton per mile; for thirty miles, two cents per ton per mile. At the said rates, let ten tons be carried ten miles, producing ten dollars; and ten tons twenty miles, producing eight dollars; and ten tons thirty'miles, producing six dollars; making the entire receipts for toll and transportation twenty-four dollars. The carriage of ten tons ten miles equals that of one hundred tons one mile ; the carriage of ten tons twenty miles equals that of two hundred, tons one mile ; the carriage of ten tons thirty miles equals that of three hundred tons one mile. The whole tonnage carried, thus reduced to the common standard of tons moved one mile, by multiplying the number of tons by the number of miles the tons are transported, is equal to the carriage of six hundred tons one mile. Dividing the twenty-four dollars by the six hundred tons, we attain the average rate per ton per mile, viz.: four cents per ton per mile. The “ average charges for toll and transportation” on the Shamokin Valley and Pottsville Railroad, leased to the defendant, obtained by dividing the entire receipts for freights thereon, from February 1st 1863 to December 31st 1865, by the whole tonnage carried during that period, reduced to the standard of tons moved one mile, were 3.734 cents per ton per mile. The operators paid the company for the use of its road, four cents per ton per mile for the coal carried for them, and three cents per ton for weighing the same. Owners of cars were paid for the use of their cars, and owners of teams were separately paid a specified sum per ton per mile for hauling. On the Philadelphia and Columbia Railroad, constructed by the state of Pennsylvania and operated by it from the year 1834 to the year 1857, the state furnished the road-way and the motive-power, but had nothing to do with the transportation. Transportation was the term applied to the business of those individuals who supplied the cars and train-hands. These individuals were called “transporters,” who transported all freights received by them. The receipts for the use of the roadway were known as “tolls,” and were kept distinct from the receipts for “motive-power.” The present acceptation of the word transportation includes all that was done by both the state and transporters, in all cases where the entire services are rendered by the railroad company. * * * The aggregate sum paid by the plaintiffs to the defendant for toll and transportation on shipments of coal from the plaintiffs’ colliery to Locust Grap Intersection, in excess of charges at the rate of four cents per ton per mile, amounted, on November 15th 1865, to eleven thousand four hundred and thirty-four dollars and eighty-seven cents. The plaintiffs paid to the defendant, for toll and transportation, in excess of charges made, at the maximum rate of four cents per mile on merchandise, carried by the defendant for the plaintiffs, from Sunbury to Mt. Carmel, as follows, viz.:— In the year 1863, ..... $74.03 “ “ 1864,..... 114.66 “ “ 1865,..... 22.87 The average charges for toll and transportation made by the defendant, for coal and merchandise shipped by the plaintiffs over the road of the defendant, from February 1st 1863 to December 31st 1865, obtained by dividing the entire receipts for freight from the plaintiffs by the whole tonnage carried for the plaintiffs, reduced to the common standard of tons moved one mile, were 5 837-1000th cents per ton per mile; giving December 31st 1865 on all the freights ■ transported for the plaintiffs, a total sum, in excess of charges, calculated at the rate of four cents' per ton per mile, of $7492.21,” On the 2d of January 1873, the report of the referees was filed, and on the same day the plaintiffs moved the court to enter judgment in their favor on the report for $16,627.48, being the amount of the excess in charges as found by the referees on the basis last mentioned in their report, and interest from January-1866, seven years.” The defendants on the same day moved to enter judgment in their favor. On the 17th of March 1873, the court delivered their opinion, in which, after considering whether transportation included furnishing cars, &c., they said:— “ We do not, however, clearly perceive the materiality of these distinctions, if it appear that they charged the plaintiffs for toll and transportation not more than four cents per ton per mile, which it is alleged by them was the fact. In contradiction to this, the plaintiffs exhibit the toll-sheets, showing that from their colliery to the Locust Gap Intersection, which is but If miles, the charges ranged from twenty-three to twenty-eight and thirty-two cents per ton, as if this was a violation of the act limiting the charge to four cents per mile; and so it would have been, had not the law' been changed. The Act of the 11th of April 1848, entitled ‘ An Act incorporating the Pottsville and Danville Railroad Company,’ provided that the maximum charges for toll and transportation, on the said road, shall not exceed four cents per ton per mile for freight. Two years afterward this proviso was modified by the second section of the supplement to the said act, by declaring that the proviso should be amended so as to read, ‘ average charges for toll and transportation,’ instead of ‘the maximum charges.’ If this change has any meaning, it warrants more than the maximum charge of four cents per mile per ton, on parts of the road, if on the whole route of their road the toll and transportation charged to the customer do not average more than four cents pér ton per mile. The question was much discussed, what is an average charge for toll and transportation on this railroad ? We think it right and proper to take the explanation of- the term, ‘ average ’ as reported by the referees and deduced by them from the testimony of witnesses in regard to the common and current acceptation of the phrase among railroad men, and as consonant with reason also ; and we consider that applying it as thus explained, the defendant’s position is sustained, that their average charges in this case were not more than four cents per mile per ton, for toll and transportation for the plaintiffs’ coal and merchandise. ”* * * Judgment was entered on the report of the referees for the defendants. The Acts of Assembly involved in the case are stated in the opinion of Judge Mercur. The plaintiffs removed the record to the Supreme Court. They assigned four errors; the second was:— In deciding that the average charges in this case were not more than four cents per mile per ton, for toll and transportation for the plaintiffs’ coal and merchandise.
74 Pa. 191Smith's Appeal (1873)
Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1873, No 84. In the distribution of the estate of C. B. Herr, assigned for the benefit of his creditors. C. B. Herr was the owner of four bonds, executed to him by Frederick Gerth; judgment had been entered on these bonds against Gerth in the Court of Common Pleas of York county: one entered to January Term 1865, and revived to April Term 1870, for $1566; one for $1000; one for $482.59 ; one for $154.90; the lien of the last three was subsequent to the judgment first mentioned ; there were also lien creditors of Gerth subsequent to his first judgment and before the others. On the 1st of June 1870, Herr applied to A. Herr Smith, Esq., to purchase these bonds; Mr. Smith purchased them and at the time of purchase the following endorsement (mutatis mutandis) was made on each of them. “ For value received, I, C. B. Herr, obligee within named, hereby assign, transfer and set over the within bond, amounting this day to $1566, unto A. Herr Smith, his heirs and assigns, and I further, for value received, guaranty the payment of the said sum, with interest from date, on the 1st of April 1871. Witness my hand and seal this 1st day of June 1870. C. C. Herr, Millersville. [seal.] On the 16th of January 1871, Herr made an assignment for the benefit of his creditors. Smith issued executions on his judgments under which Gerth’s property was sold, on the 15th of April 1871, and enough realized from the sale to pay Smith’s first judgment in full; but not to pay anything on his subsequent judgments; Mr. Smith received the amount of his first judgment, from J. W. Bittenger, Esq., his attorney. The estate of Herr was referred to H. B. Swarr, Esq., to report distribution. He made a report awarding $750.25 on the first judgment, Mr. Smith.claiming before him that all the bonds had been assigned to him as a collateral for a loan made to Herr at the time of their assignment, and that Herr’s general creditors could not participate in money derived from the sale of G-erth’s property. The report was recommitted to the same auditor, who amongst other things reported: “ Upon a careful consideration of this claim, on the facts presented, the auditor is of the opinion that the endorsements of C. B. Herr on the bonds assigned are not such independent promises to pay the amount due thereon, as to enable Mr. Smith to appropriate the amounts received from Mr. Bittenger, generally, “ to the liability of C. B. Herr by virtue of his agreements endorsed on said judgments,” as contended for by his counsel. The liability of O. B. Herr on any one of the obligations transferred terminated when the same was paid by the principal, or by the legal appropriation of the money arising out of the judicial sale of his property. This was done in the distribution of the money arising out of said sale, and the amount remaining after paying prior liens, being sufficient to pay and discharge the first of the judgments held by Mr. Smith, and on which the dividend was awarded, and when paid the guaranty so far as it was concerned, ended, and no appropriation of the amount received by Mr. Smith could restore the liability of C. B. Herr on that particular obligation, and therefore it is not entitled to the dividend awarded.” * * * The auditor therefore disallowed the dividend theretofore awarded to Mr. Smith’s bond; and after exceptions by Mr. Smith his report was confirmed. Mr. Smith appealed to the Supreme Court and assigned the decree of confirmation for error.
74 Pa. 194McCreary's Appeal (1873)
1. A fi. fa. was issued on a judgment and land levied on, the defendant waiving an inquisition and making no claim for exemption; fi. fas. were issued afterwards on two other judgments, levies made and exemption claimed : writs of vend. ex. were issued in each case, and the land sold under the three at the same time. Held, that each execution was as much the instrument of the sale as the others and the defendant was entitled to his exemption. 2. The first fi. fa. was on a judgment subsequent to the judgment of the second fi. fa., and the third fi. fa. on a judgment subsequent to both ; Held, that the defendant was entitled to his exemption only as against the third judgment, his omission to claim under the second judgment precluding him from any claim against the first. 3. Line’s Appeal, 2 Grant 197, distinguished.
74 Pa. 198Sheetz v. Wynkoop (1873)
Error to the Court of Common Pleas of Lebanon county: No. 53, to May Term 1873. This was an action of ejectment, brought March 12th 1872, in the Court of Common Pleas of Schuylkill county, by Samuel Sheetz and William Frederick Breitenbach, a minor child of William S. Breitenbach, deceased, by his guardian, against John E. Wynkoop and E. W. Wynkoop, Augustus W. Huber, Zacharias Batdorf and the Star Iron Company. By virtue of a special Act of Assembly, the case was, on the 10th of June 1872, removed to the Court of Common Pleas of Lebanon county. The plaintiffs claimed to recover the undivided two-thirds of a body of land, with iron works and other buildings; being in Schuylkill county and known as “ The Stanhope Furnace Property,” containing 1215 acres. A disclaimer. of Huber to any part of the premises was filed February 3d 1873 ; and disclaimer of Batdorf to “the furnace and tract on which it is erected, not exceeding 200 acres,” was filed February 17th-. The defendants in interest were' the Wynkoops. The tract had belonged to William S. Breitenbach and John R. Breitenbach and Samuel Sheetz, partners in the manufacture of iron, and by their articles of partnership, it was stipulated that the land should be partnership property. The case was tried February 17th 1873, before Pearson, P. J. The foregoing was given in evidence or admitted. Under objection and exception the defendants gave in evidence a judgment in the Common Pleas of Schuylkill county, Simon Cameron and others against the Breitenbachs and Sheetz, for $2500, entered February 15th 1860 and assigned October 22d 1860, to Augustus W. ITuber and William A. Huber. A fi. fa. was issued on this judgment to March Term 1861; a large number of executions were issued to the same term on other judgments. • The real estate extended at a rent of $10,000 per annum: at which rent the defendants gave notice that they would retain the property. On the 11th of June 18'61, John B. Breitenbach presented his petition to the Court of Common Pleas of Schuylkill county, setting forth the numerous fi. fas. (which he specified, not including Cameron v. Sheets above stated), one being Waterman et al. v. Sheetz et al., had been issued against the firm, and setting forth numerous judgments, including the above-stated judgment of Cameron v. Sheetz and mortgages, that were liens against their property, and that they all amounted to less than $50,000; that the defendants’ personal property had been levied on under the executions, and advertised for sale on the 12th of the same month; that if a sale should be made the personal property would be greatly sacrificed. He further set out that the real estate of the defendants as described in a schedule attached to the petition, was worth at a fair valuation from $70,000 to $80,000. The prayer was that the court would stay or set aside the executions as provided by the Act of May 21st 1861 (Pamph. L. 770). No notice of this application was given to the owners of the Cameron judgment. The act provided for a stay of execution for six months, under the circumstances set out in the petition, upon conditions mentioned in the act. Upon this petition the court ordered a stay of execution and an adjournment of the sheriff’s sale until the 20th of June, and appointed the 19th for a further hearing of the petition. On that day the court ordered a stay under the provisions of the act, “ and also that execution do stay on the judgments.” The order was endorsed on the petition but no entry of it was made on the docket. The rent under the extension not having been paid, a venditioni was issued on the Cameron judgment on the 23d of January 1862. On the 3d of March 1862, John B. Breitenbach, one of the defendants in the execution, filed an affidavit averring that he was and had been in the military service of the United States since ■the 27th of August preceding, under a requisition of the President of the United States and an order from the Governor of Pennsylvania, by whom he had been commissioned as captain, &c., and was bound to remain until the end of the war or until honorably discharged. Upon this affidavit, J. R. Breitenbach moved the Court of Common Pleas of Schuylkill county under the 4th sect, of the Act of April 1861 (Pamph. L. 409), to quash the venditioni; on the 6th of March the court stayed the writ as to J. R. Breitenbach, “ it appearing that he is an officer in the United States army under a requisition of the government,” and refused to quash the writ. The joint property of W. S. Breitenbach and Sheetz was sold by the sheriff to A. W. & W. A. Huber. The sheriff’s deed, dated March 22d 1862, was for the real estate, without stating it to be for the two-thirds. By divers conveyances the title to two undivided thirds came to “The Star Iron Company,” on the 26th oif January 1865. On the 26th of March 1867, John R. Breitenbach commenced an ejectment in Schuylkill county against The Star Iron Company fbr the premises, and on the 9th of’February 1872, he obtained a verdict for one-third of the land. The plaintiff in rebuttal gave evidence from the record that no affidavit of non-payment of the semi-annual rent was filed before issuing the venditioni. The court, stating the facts as above given and referring to the venditioni under which the land was sold, charged:— * * * “ The question presented for our decision is, did this sale pass the title of William S. Breitenbach and Samuel Sheetz ? If it did, the plaintiff cannot recover. It is said that where a judgment is joint the execution must follow the judgment and issue against all of the defendants. This may be conceded, yet in the present case the fi. fa. and vend. ex. both issued against all, but on the application of one defendant for a reason peculiar to himself, the court stayed the writ as to him, but refused to quash it. This it is said was a grave error — that the court was bound to quash the writ. This is claimed under the 70th sect, of the Act of 2d of April 1822, 7 Sm. L. 638, 2 Br. Purd. 1061, pi. 182, and it is also contended that the Act of 18th of April 1861, Pamph. L. 409, sect. 4, 2 Br. Purd. 1061, pi. 183, which says that no civil process shall issue or be enforced against any person mustered into the service of the state or United States until thirty days after he shall have been discharged. This latter statute does not require the writ to be quashed, but the court should certainly under its provisions tabee measures to relieve the qoarty in service. This was done here, and as we conceive, the proper remedy was applied. We cannot believe that the legislature ever intended that where many persons are bound in a judgment the process should be stayed or set aside as to all because one was in service. As we would apply the statute, the writ must issue on the judgment against all, the joint or several property of each could be levied on, but the court would relieve the one entitled to a special exemption by forbidding a sale of his interest under the writ. “ The legislature of 1861 could not have known of the Act of 1822, or considered it in force, else they would not have enacted a law giving much less relief than the one in existence, passed when there was no apparent occasion for such a provision in a time of profound peace. But as the law never was repealed, we will treat it as in full force, yet like all other statutes it must be construed according to what we conceive was the intention of the legislature ; we must not stick in the letter — quihceret in litera hceretin cortiee. In enacting such statutes the legislature has in view a judgment of one person only, and designs, to relieve his property — did not provide for the case of an obligation against several. It never was intended that because a man was bound in a bond with others that they could not be sued, and the writ be quashed as to him because he ivas in,service, or if a joint judgment was entered against a dozen men, the execution must be quashed because one was in the army. It is quite sufficient when that one is relieved — such is the object and intention of the statute. To relieve all the co-obligors would be going beyond the intention of the legislature. But suppose we are in error as to the proper construction of this law, we cannot correct the errors of the court of Schuylkill county. That court made a decision refusing to quash the writ. We are not the tribunal to review it, nor can we treat it as a nullity; if wrong, the defendants had remedy by writ of error. The process after this decision was not void, it was at most voidable and must be reversed by the Supreme Court. It is said that a great error was done to these defendants by the sheriff proceeding to sell their property on the old advertisement without new notice, and selling as if it was the estate of all when one was discharged. That would look more like doing injustice to the purchaser, though the matter seems to have leen perfectly understood. ’ Taking it for granted that it would be an injury, yet the proper mode of redress was to apply to the court to set aside the sale before the sheriff’s deed was aeknoAvledged. That, in our opinion, cures all irregularities. 'It will not cure the want of a judgment or execution. Here both exist. The party must seek redress at.a proper time and before the proper tribunal. “ It is said, hoAvever, that the execution issued here, and the sale was made under it, in violation of the Act of May 21st 1861, relating to the stay of executions. “ That statute gives a stay for one year on all judgments then existing on the docket, as also those which shall be afterwards entered. On the 11th of June 1861, John R. Breitenbach by his petition asked for a stay of execution under the provisions of that laAY, setting forth that the personal property was levied on and likely to be sacrificed. He obtained an order suspending the sale on testatum writs and also on judgments, and from the language of the court it probably was intended to apply to all executions which might be issued on all these judgments contained in the list attached to that record. Waiving for the present the necessity of having the order made in each particular case, we understand it that this judgment was not included in the list. They are not all described by number and term, but only by the name of the plaintiffs and when assigned by that of the cestui que use. This one stood for the use of another person and was fora different amount. We have not had the advantage of inspecting the record but as read this one is not embraced. It is said, however, that when such an order is made on the record every judgment-creditor is bound to take notice of it and issue at his peril. We think differently, and that the debtor must apply for his stay of execution and make proof before the court of the value of his property, and show that it comes within the provisions of the statute, or give the security as required by law. That the creditor is entitled to notice of such application to enable him to appear before the court and controvert the facts, and show that it is of less value or the bail insufficient. The order made as to others could not bind this judgment-creditor, it is only obligatory on those notified. * * * So far from John R. Breitenbach claiming a stay of execution on the judgment in this case, on the 7th of June 1861, he gave notice that he elected to take the property at the rental of $10,000 a year as fixed by the inquest, and the same was agreed to by the plaintiffs. On this the defendants obtained the stay until January 7th following, when on affidavit filed that the rental was not paid an execution issued. During all of this time there was no intimation that a stay was claimed under the Act of 1861, but on the contrary the defendants apparently expected to have a much longer stay by paying the annual rental. Under these circumstances we certainly cannot declare the sheriff’s sale void, more especially as no motion was made to set aside the process, or objection taken to the acknowledgment of the sheriff’s deed. It is too late to controvert the sheriff’s sale after ten years and after the property has passed into the hands of innocent holders, so far as shown on this trial at a cost of over $100,000, for two undivided third parts of the premises. “ Although as a general rule the fi. fa. and vend. ex. must follow the judgment, where the one is joint the other must be also. Yet in the case of an infant, the court will set aside the process as to him, but permit it to go on as to the others and sell their property. It is a personal privilege conferred on the infant, as this is as to the soldier in service. “ Lastly, it is said that the sheriff cannot divide a tract of-land in making a sale. This is true, a levy cannot be made on a part of a tract, yet we are not aware of any decision that the whole of an undivided share cannot be sold, or that the interest of one tenant in common cannot be levied on and a good title made thereof by sheriff’s sale, without disposing of the interest of the other tenants in common. “ On the uncontroverted facts in this case we are of the opinion that the title of W. S. Breitenbach and Samuel Sheetz passed by the sheriff’s sale and deed, and therefore they are not entitled to recover, consequently your verdict must be in favor of the defendants.” ■ ' The verdict was for the defendants. The plaintiffs took a writ of error, and in eleven specifications assigned the charge for error.
74 Pa. 208Watterson v. Allegheny Valley Railroad (1874)
Error to the Court of Common Pleas of Allegheny'county: No. 204, to October and November Term 1873. This was an action on the case, brought May 26th 1869, by James Watterson against The Allegheny Yalley Railroad Company. , The plaintiff, by his declaration, averred that the defendants, in consideration of his granting and conveying to them a right of way for a double railroad track over his land, for the nominal consideration of one dollar, promised him that they would locate on his land a railroad station and depot for freight and passengers, and thereby promote the business at the place, the plaintiff being a forwarder and warehouseman there; that the defendants also promised him that they would remove the blacksmith shop, warehouse and buildings of the plaintiff, and erect the same at other convenient.places on his land, and build a stone wall on his land along the line of the railroad, for the safety and preservation of his land and premises. Plaintiff further averred that, relying on these promises, “he did, for the consideration aforesaid,” make to the defendants a grant of the right of way, “ expressing in the deed the nominal consideration of one dollar, which was never in fact paid;” but that the defendants did not establish on the plaintiff’s land “ a railroad station and depot for freight and passengers,” and did not remove the blacksmith shop, warehouse and buildings, and did not construct a stone wall along the railroad; “ whereby the plaintiff hath been and is deprived of great gains and. profits, which he could and otherwise would have acquired and gained as a warehouseman and forwarding merchant, at the place aforesaid, by the location, and establishment of the said railroad station and depot; and hath also been deprived of and lost the great profit, advantages and gain 'which he could and otherwise would have acquired and gained by the enhanced and increased price and value of his said land, &c., by and through the establishment of said railroad station and depot, and the transaction and promotion of business thereby; and also by means thereof the plaintiff was prevented from selling divers lots, pieces and portions of his said land at and for large sums of money, &c., which he could and otherwise would have acquired and gained; and also by means of the premises, and for want of the said stone wall, which the defendant so as aforesaid undertook and promised to construct and build, the plaintiff’s land and premises have been and are greatly injured and'damaged and depreciated in value, &c.; and also by means of the premises and by reason of the construction of said railroad in, upon and through the land aforesaid of the plaintiff, the said land, blacksmith-shop, warehouse and buildings have been greatly injured, wasted and depreciated in value, &c.; and also by means of the premises the plaintiff hath been and is greatly hindered, interrupted and delayed in his business and in the use, occupancy and enjoyment of his said land and premises, to the damage of the plaintiff twenty thousand dollars, and therefore he-brings suit, &c.” • . The case was tried September 19th 1871, before Collier, J. The plaintiff gave in evidence his release to the defendants for damages for the right of way of their railroad through his land. He then testified that William Phillips, the president of the defendants, and William McCullough, the vice-president, were at his house when he signed the release; the road had not then been made to his place; they came with the instrument drawn up. “ They induced me to sign it by agreeing to move my building: they wrere to build a stone wall back of my house; and a bridge across the run. They were to build a freight and passenger depot on a piece of ground I deeded to them the same day. I wanted them to give it to me in writing, as it was not in the deed. Mr. Phillips said he would give it to me any time, as he had not time then ; he had to go away. He said it was not necessary, but he would give it any time. They said they would give their word of honor that they would do everything they had promised. This was before I signed the release. I would not have signed the release if I had not believed them. They said it would make my property worth double to have the depot there. They were there about an hour; maybe not so long. They went oif immediately after I signed the deed of release. They had been there several times before that day on the same business. McCullough was there some three or four times, and Mr. Phillips, I think, twice. I think the second time they came, they left the deed for the ground forme to examine. The right of way was embodied in that deed at first — both the ground for the depot lot and the right of way. I refused to sign it. He said it was not drawn up according to orders at all. The solicitor had drawn it up, he said. The next time they had both deeds with them. I then executed them, after an alteration being made in the deed for the ground. They talked over this matter before I signed the release at several interviews. They never did what they said. * * * I told Mr. McCullough that there was a report out that they were going to take the depot to Phillipsburg. He assured me they would go on and put it up, just as they had agreed to. They never put the building up. * * * Phillips said if I did not let it go on my ground, he would have to put it further up, and that would injure my property. I told him I would let him have about an acre to put a depot on for a thousand dollars, and would give him the right of way rather than it should go below. Didn’t tell Col. Phillips I would take a thousand dollars and make him a release and deed. I would not have taken $2000 at that time for that lot for any other purpose. * * * I told him I would give him an acre to put the depot on for one thousand dollars, and they were not to use it for anything else. I was paid the one thousand dollars. The terms agreed upon about the right of way were, ‘ that they were to take the buildings down and build the roads.’ He, Phillips, did agree to build a depot on the lot that he gave $1000 for. They pledged their honor that they would do these things. The promises were made as to both bargains. I did not ask Col. Phillips to put in the $1000 deed a covenant in regard to the freight and passenger depot. My wife would not sign the deed till the covenant about taverns, &c., was inserted. I requested that it be put in writing as agreed, and they said it was not at all necessary. Col. Phillips said he would put a general freight and passenger depot to supply that part of the country. I say positively that part of-the conversation about the buildings, &c., was before the papers were signed by me.” Plaintiff proposed to testify how much more his property would have been worth at any time after defendants could have built their freight and passenger depots, as agreed on, if they had built them, up till the time of bringing this suit, than it was worth during that period, without the depots. Defendant objected to the offer, for.the reason that the evidence is speculative and uncertain as to the damages alleged to have been sustained, &e. The court rejected the offer and sealed a bill of exceptions. Mary A. Watterson, wife of plaintiff, testified: — “Recollect Col. Philips and Mr. McCullough coming to our house about the right of way. Recollect signing the deed for the depot lot. They were there three times, I think. Their first errand was the right of way. The second time they came they proposed to buy the acre of ground for a freight and passenger depot, and what an advantage it would be to our property — that it would double it. Col. Phillips and Mr. McCuilough came the day we signed the deed. They sent for me to come and sign the paper. I was not willing to do it unless Col. Phillips would give it ‘ in writing’ all that he intended and promised to do. Mr. Phillips said the property would be worth double. I said I could not see it. I said, how would it be if our living was taken away from us ? We were then getting our living by store and freight. He said Watterson could make more money after they got their buildings up by selling salt; that business would be ‘ brisker ’ than at present. I wanted it put in writing, or put on the deed I signed. They said they had not room, or had not time, but would give me papers to that effect if I would sign it. Phillips said if we would give them the right of way the property would be worth so much more. I insisted on their doing what they said. I said I would not have a tavern or restaurant on the lot. Phillips said to McCullough that it did not amount to much, they could put that in. They were to have the right of way for one dollar, if they would go on and put up the building, that is, if I understand the writings. This was all before the papers were’signed. After the papers were signed they both left. I was out several times and was waiting for Phillips and McCullough to give-us in writing what they agreed to do. They sent for me again. Mr. Phillips said it was not necessary, and they had not time at present; that he would give me his word and honor that he would do all he agreed to. Then I took the deed and signed it, but told the justice of the peace that I did not do it with a good will, without they would give us the writings. Had no further talk, only Mr. Phillips told me not to be uneasy, that they would do all they agreed to do. * * * “ Col. Phillips said $1000 was too much. He said we ought to give him the right of way and the ground for less, as putting the buildings on would double the property. He said the railroad would make our property double what it was. He used that as an argument. Phillips first asked for the acre of ground. The right of way was not then mentioned. Phillips came back and said he would give the thousand dollars, and that was the bargain for that lot. They were to have the right of way for $1 if they would do what they said. This was with Col. Phillips. He said he would put up the buildings and make that the main point for Clarion county.” Esq. Hull testified: “ I was sent for to acknowledge some papers. Col. Phillips and McCullough were there. Mrs. Watterson said she would not sign the deed till it was put in, that no tavern or eating-house should be erected on the premises. After this was inserted, Mrs. Watterson said ‘she would like to have the writings, that you are going to put the depot here,’ or words to that effect. Mr. Phillips said they had not time to do it that day, but they would do it any other time. Mrs. W. then picked up the deed, went into the dining-room and signed it with a very good will. After taking Mrs. W.’s acknowledgment, I took the acknowledgment of Mr. W. to the right of way. He signed and acknowledged it. T then went away. I think I did not hear her insist on anything else going in the deed except what I have stated. * * * “Mrs. Watterson objected to signing the deed till the.condition about the tavern and restaurant were inserted. This was all she demanded to go in the deed.” There was other evidence in corroboration of the testimony of the plaintiff and Mrs. Watterson, and very much evidence as to the damage sustained by the plaintiff by reason of the location of the road and the failure to erect the depot, &c. For the defendants, Wm. Phillips, president, testified: “ I went up in company with Mr. McCullough and Mr. Wright. Met Mr. Watterson, walked with me around the premises. I asked him what he would take for a certain piece of ground near his house, containing about an acre. * * * I asked him what he would take for it. He said $1000. I told him I thought it too much. I went to Watterson and offered if he would give me that piece of ground and the right of way for $10001 would close with him. He agreed to take it. We were to make a stone wall, move his stable, or pay for a school-house. If the warehouse should have to be moved, we were to do it. I told Mr. Watterson that we wanted to build a freight and passenger depot on the lot, but it was never spoken of as a part of the consideration. That was the agreement we made. Mr. Gulden made out the deed, and in it he embodied the right of way. When the paper was presented to me I stated it was not drawn in the manner I would like to have. I preferred to have it divided — put in the $1000 for the lot and for the deed of right of way. I wanted the consideration for right of way to be put in as one dollar. About three weeks after I had the deed prepared, as agreed upon with Mr. Watterson, we had the deed of release, and went to Mr. Watterson. Presented the deeds to Watterson. He looked over them. Watterson read over the papers, then went into an adjoining room and talked to Mrs.’ Watterson. Came out and remarked Mrs. Watterson did not feel willing to sign the deed for this acre of ground. I asked what the objection was. He said she was not willing to sign it unless we were willing to insert the provision about the tavern or restaurant. I told Mr. Watterson that I thought it was entirely unnecessary to insert that, for our charter prohibited us from embarking in tavern-keeping business.' He still insisted, and I turned to Mr. McCullough and directed him to put it in. It was put in, then handed it to Mr. Watterson, who took the pen and signed it. His wife was in the room at the time. . Mrs. Watterson took the deed into another room, Esq. Hall accompanying her. She signed the deed. Release was signed at the same time. Both were acknowledged by Esq. Hall. Nothing was said that day except what I have told you. * * * Neither Mr. nor Mrs. Watterson ever asked me to even build a depot. They asked me to put in writing the building of a stone wall, or pay him for doing it — to take down, or pay him for it, the wash-house, school-house, stable and blacksmith-shop, and we were to pay for the stable. I told him that that was not necessary, and pledged him that it should be carried out precisely as agreed upon, for we were going right on. Neither Mr. or Mrs. Watterson asked me to put in writing that we would build a depot on the lot we bought. I paid the thousand dollars, built the stone wall, two hundred feet long, four feet at top.” * * * This witness testified, also, as to the damage sustained by plaintiff. There was evidence for the defendants corroborating Phillips’s testimony. The plaintiff submitted the following points, which were refused:— “ 1. If the jury believe that tie plaintiff delivered to the defendant’s agents a release of the right of way .through his land in Clarion county, and which defendant adopted and located its road thereon; and that the consideration for such release was the parol agreement, on the part of the defendant, to erect a stone wall on the north side of its road, past his buildings — remove plaintiff’s out-buildings to another site or pay for the removal thereof, and to build a freight and passenger depot on the land conveyed by plaintiff to defendant — that the release of such right of way is a valuable and sufficient consideration to support the premises made on behalf of defendant. “ 3. If the jury find from the evidence that the defendant violated said contract, then the measure of damages which the plaintiff is entitled to recover in this action is the value of his contract; that is, what it would have been worth to him if defendant had performed its contract. “ 4. If the jury believe that defendant procured said right of way in consideration of the promises of its agents that it would build a stone wall past his buildings, remove his out-buildings to another site and erect a freight and passenger depot on the land bought from him, and that defendant afterwards refused to perform this agreement, then that would constitute such a fraud on part of defendant as would entitle the plaintiff to the largest measure of damages for the loss of his bargain, with interest thereon.” The plaintiff-’s fifth point was affirmed. It was:— “The plaintiff is entitled to recover the difference in value between what his property was worth before the railroad was located through it and after it was completed, with interest on .such amount.” The defendant’s first point, which was affirmed, was:— “ The deed granting to the company the right of way for their railroad through the plaintiff’s land is in law a solemn instrument, and cannot, in whole or in part, be altered or changed as to the consideration expressed therein, unless upon the ground of fraud, accident or mistake.” The court charged;— “ 1. You must be satisfied by clear, strong and indubitable evidence that the agreement set up by plaintiff, as to erecting the freight and passenger depot, was made, and that it was not reduced to writing or put in the deeds, or either of them, because Colonel Phillips represented that it was not necessary, and that he would give the papers at any time, and that he would perform the agreement as he had promised. The burden is upon the plaintiff. The defendant has a right to stand upon its deed, and it can only be contradicted as to the consideration on the ground of fraud, as alleged, by clear, strong and indubitable evidence. “ 2. If you are not satisfied that the evidence is clear, strong and convincing on this point, then your verdict should be for the plaintiff for whatever damages he has sustained in removing his buildings; the blacksmith-shop and loss of rent therefor; the lumber of the warehouse destroyed, and what it cost him to complete the stone wall, if that was not built according to the agreement. “ 3. [But if you should be satisfied that the evidence is clear, strong and indubitable that there was a contract relative to the freight and passenger depot, and that it was not inserted in the deed of release by reason of the representations of defendant, as alleged, then the measure of damages would be the value of the plaintiff’s property at the time of the taking, deducting the advantages from the building of the railroad, if any, together with any annoyance that would interfere with the enjoyment of his house or property. But you cannot allow damages for the loss of business to the plaintiff occasioned by the railroad diverting the trade from him.] “ In either view of the case your verdict must be for the plaintiff.” The verdict was-for the plaintiff for $991.25. •He took a writ of error, and assigned for error the refusal of his 1st, 3d" and 4th points, and affirming defendant’s point, the part of the charge in brackets and the rejection of his offer of evidence.
74 Pa. 218McKee v. Bidwell (1873)
1. If there be undoubted evidence of clear negligence, the court must so pronounce as matter of law. 2. If there be no doubt as to the facts, yet if there be substantial doubts as to the inferences to be drawn from them, they are for the jury. 3. The plaintiff, in going about nightfall into defendant’s building on business, fell through an opening into the cellar. Held, that evidence that the defendant afterwards put a light at the opening was admissible on the question of negligence of defendant. 4. Evidence in this case for the jury on the question of negligence. 5. Johnson v. Bruner, 11 P. E. Smith 58 ; Penna. Railroad Co. v. Barnett, 9 P. E. Smith 259 ; Penna. Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 2 P. E. Smith 282, recognised; Penna. Railroad Co. v. Henderson, 1 P. E. Smith 315, followed.
74 Pa. 225Allegheny City v. Blair (1873)
163. This was a municipal claim for $165.58, with interest, &c., for grading and paving River avenue, filed April 19th 1871, by the Mayor, &c., of the City of Allegheny, against a lot, &c., on the north side of River avenue, belonging to Kinder Blair.
74 Pa. 230Wier's Appeal (1873)
159, to October and November Term 1872. This was a bill filed June 30th 1871, by James Gr. Wier and twelve others against Arthur Kirk, for an injunction to restrain him from erecting and maintaining a powder magazine in Indiana township, near dwellings of the complainants, in the neighborhood of the borough of Sharpsburg. The bill set out:— 1. The plaintiffs were residents and property-holders as above stated. 2.
74 Pa. 245McGinnis v. Commonwealth ex rel. McGinnis (1874)
1. Issues of fact, -whether by way of traverse or feigned issue, when tried before a jury according to the course of the common law are subjects of writs of error. 2. The trial is conducted and bills of exception to evidence or the charge are as in other jury trials. 3. A writ of error lies to the rulings and charge of the court, on the trial of a traverse of the finding in proceedings in lunacy, &c. 4. The effect of the finding of the inquisition is prim& facie and on the trial of a traverse throws the burthen of disproof on the respondent. 5. The finding, although a traverse be put in, places the custody of the person and estate of the respondent in the hands of the court. 6. After a respondent has given evidence in answer to the inquisition, the relator may give evidence in rebuttal to establish the finding. 7. In proceedings to establish habitual drunkenness, it is sufficient to find that fact; the law establishes incapacity and the jury on a traverse need not determine the respondent’s ability to transact business. •_ 8. Leckey v. Cunningham, 6 P. F. Smith 373 ; Ludwick v. Commonwealth, 6 Harris 172; Rogers v. Walker, 6 Barr 371, followed.
74 Pa. 249Oil City v. McAboy ex rel. Bollman (1873)
1. A borough in Venango county was authorized to contract a debt and issue bonds for its payment; they issued bonds with warrants of attorney; judgment was entered on one in the District Court of Allegheny county. Held, the defendant being a municipal corporation, that court had no jurisdiction and the judgment was invalid. 2. Actions against municipal corporations are local, and must be brought where they are located. 3. The warrant was to “ any attorney of any court of record,” &e. Held, that this did not authorize the entry, it being a question of the jurisdiction of the court: and consent could not give jurisdiction. 4. Lehigh Co. v. Kleekner, 5 W. & S. 181; Wilson v. Huntingdon Co., 7 W. & S. 197, applied.
74 Pa. 252St. Clair School Board's Appeal (1873)
1. Equity may enjoin, against the collection of a tax levied without authority. 2. Even when there is-legislative authority to tax for a certain purpose, if the tax levied is clearly in excess of the sum required, its collection may be enjoined. 3. Money had been collected by taxes and otherwise to pay debts contracted by a school district for bounties to recruits. The officials of the district for foui1 years preceding had not accounted for the funds received by them, and there was no money in the treasury to pay the amount at that time due to the holders of bonds, &c., for money advanced for recruits. Held, that the school board were authorized to levy a tax to pay the indebtedness.
74 Pa. 258West v. Irwin (1874)
Error to the District Court of AEegheny county: No. 11, to October and November Term 1873. On July 9th 1869, in the District Court of Allegheny county, judgment was entered in favor of Joseph Irwin against Joseph West, for $1920, on a single bill, with warrant of attorney dated February 1st 1869. On the 8th of April 1871, a rule was granted to show cause why the judgment should not be opened and the defendant let into a defence. On the 3d of February 1872, the judgment was opened, and the defendant let into a defence — “ the plaintiff to file a declaration on the note, and the defendant to plead thereto.” The defendant pleaded unon est factum and payment with leave, &c.” The issue ivas tried December 5th 1872, before Kirkpatrick, J. The plaintiff offered in evidence the record of the opened judgment, “for the purpose of showing a primá facie case and the right of the plaintiff on the record to recover on this issue.” The defendant objected to the offer. It was admitted by the ■eourt, and a bill of exceptions sealed. The plaintiff, having given the record in evidence, rested, and ¡the defendant moved for a nonsuit, which was refused. The •defendant asked the court to instruct the jury that the plaintiff ■could not recover on the pleading and'evidence in the case. This ■request was refused, and a verdict was rendered for the plaintiff ■for $1694.90. The defendant took a writ of error, and assigned for error : the admission of the plaintiff’s evidence and the instruction of the court.
74 Pa. 259Pittsburg v. Cluley (1874)
Error to the District Court of Allegheny county: No. 144, to October and November Term 1873. This proceeding was a scire facias, issued April 15th 1869, by The City of Pittsburg against John E. Cluley, on á municipal claim ($440.20) for grading and curbing opposite sixty feet of defendant’s lot on Centre avenue. On the 10th of March 1868 the councils of Pittsburg passed, an ordinance:— “ That the city engineer be and he is hereby authorized and directed to advertise for proposals for the grading, paving and curbing of Centre avenue, from Dinwiddie street to Kirkpatrick street; and to let the same in the manner directed,” &c. In accordance with this ordinance, a contract was made and Centre avenue was graded from about the centre of Dinwiddie street eastwardly to Kirkpatrick street. In this grading, &c., there were about thirty-two feet of the defendant’s lot west of the east line of Dinwiddie street and about twenty-eight feet east of that line, which were graded and paved. Centre avenue had previously been graded and paved from beyond the west line of Dinwiddie street to its centre, and in this way the thirty-two feet above mentioned, being in front of defendant’s lot and opposite Dinwiddie street, were left ungraded and unpaved previously to this contract. The contention of the defendant was that, as Kirkpatrick street was east of Dinwiddie street, under the ordinance, the grading, &c., should commence from the east side of that street, and therefore would not cover any portion of the grading west of the east line, although within the lines of Dinwiddie street. The court was requested by the plaintiff to instruct the jury:— “ That the ordinance in evidence authorized the city officers to grade and pave the street to a line drawn from the extreme line of Dinwiddie street at right angles to Centre avenue.” The court answered: “We decline to charge as requested in this point. We are of opinion, and so instruct the jury, that the plaintiffs are entitled to recover for grading and paving Centre avenue twenty-eight feet in front of the defendant’s property, which distance is ascertained by running a line from the line opposite the mouth of Dinwiddie street at right angles with the inner line of Dinwiddie street.” The jury found for the plaintiffs $268.29, the amount for grading, &c., the twenty-eight feet, and excluding the thirty-two feet within the lines of Dinwiddie street. The plaintiffs removed the record to the Supreme Court, and assigned for error the answer of the court to the point.
74 Pa. 262Pittsburg v. Cluley (1874)
1. A law provided that before any street in Pittsburg should be'opened, the councils should appoint thrw. freeholders to assess the damages, their report to be approved by councils, and on appeal, by the Quarter Sessions. Viewers made their report, which was approved by councils and the court. On a scire facias on a municipal claim for the amount assessed, the jury found that one of the viewers was not a freeholder. Held, no defence to the action. 2. The appointment was not void, and the mistake was in the confirmation of their report, which had the effect of a judgment, and could not be inquired into collaterally.
74 Pa. 265Pennsylvania Railroad v. Ackerman (1873)
1. A traveller, before sunrise on a foggy and dark morning, approached a railroad crossing in a city, stopped about ten steps from it, and looked and listened without getting out of his wagon and going on the railroad. The view of the track was somewhat obstructed by cars standing on a siding ; the train came more rapidly than the city ordinances allowed, and there was snow on the track; there was evidence that the bell was not sounded : the wagon was struck and a horse killed. Held, that under the circumstances the question of contributory negligence was for the jury. 2. The court charged: “ If under the circumstances an ordinarily prudent and cautious man would have got out of his wagon and approached the ,track at the head of the horses until he was in a position where he could look along the track far enough to see that he was in no danger from an approaching train, it was the duty of the plaintiff’s driver to do so, and if his neglect to do so contributed to the injury complained of, plaintiff cannot recover.” Held to be correct. 3. Pennsylvania Railroad Co. v. Beale, 23 P. P. Smith 504, distinguished.
74 Pa. 269Meyers v. Robinson (1874)
1. Robinson made apian of lots numbered on the plan which was recorded; he sold and conveyed lots 271 and 272 and 268 and 269. He brought an ejectment for lot 270, which was between 269 and 271, the owner of the other four lots being in possession of it. Evidence for the defendant that Robinson negotiated for'the sale of 271 and 272 on condition that 270 should be an alley, the purchaser paying an enhanced price for two lots on that account: and that in the deed for 271 and 272 and other lots, 270 was called for as an alley: Held to be inadmissible, there having been no dedication of 270 as an alley. 2. The intention of the grantor must be gathered from the deed and its construction cannot be varied by parol. 3. The deed referred to the plan which was made a part of it; the plan was to be treated as if incorporated into the deed. 4. Robinson v. Myers, 17 P. E. Smith 9, adhered to.
74 Pa. 273Leech v. Robinson (1873)
1. A testator gave to his wife all his property for her life, and willed that “ the entire income of my estate be divided equally amongst all my children.” To. J ames one seventh part of the income to be paid to him during life with power to devise the same to such of his brothers and sisters or their children, as ho might elect: to William and Alexander each one-seventh of said income, with no further power: to John “ in like manner” one seventh part of said income, with the same power as to James; to each of two daughters and “ their heirs in like manner,” one-seventh of said income, in trust; to Frank and his heirs “ in like manner” one-seventh of said income-; and declared the gift to his heirs to be for their personal benefit for their lives and to guard against improvidence and misfortune. He declared it to be his design to invest each of' his heirs with a life estate in the income of his property, with reversion to their heirs. By codicil he revoked the gift to Frank and gave it to trustees for his use, and directed partition “ of the whole of my estate,” to be made when his executors and heirs “ may proceed to the partition thereof.” Each part to be subject to his wife’s life interest. There were other clauses. Held, that the estate was given to the wife for life and to his children in foe. 2. An obscure will construed.
74 Pa. 280Hageman v. Salisberry (1873)
1. A bond with warrant contained in the condition a waiver of inquisition and condemnation. The bond and a declaration were filed; the same attorney who filed the declaration appeared for the defendant in the ordinary way and confessed judgment “by virtue of warrant.” All these proceedings appeared on the docket. Land was sold under this judgment on a fi; fa. Held, that the waiver was part of the record and the title passed by the sale. 2. Evidence that the signature of the defendant to the bond and warrant was a forgery was inadmissible in ejectment for the land. 3. In contemplation of law a judgment upon warrant is the act of the court. 4. If judgment be confessed in a suit under terms, they are part of the record of the judgment and qualify it. 5. If a judgment be confessed by an attorney, neither its regularity or his authority can be questioned in a collateral action. 6. Buehler «. Rogers, 18 P. E. Smith 9 ; Hope «.'Everhart, 20 Id. 231, distinguished.
74 Pa. 286Spencer v. Darlington (1873)
1. A lease was for ten years with a stipulation that the improvements erected might be removed at the end of the term. A brick malt-house was erected. The malt-house was personal property liable tobe distrained for rent. 2. The term could not be sold under a distress for rent. 3. Bidders at a sale under a distress agreed that one should buy and sell to the other at the price at which he should buy it, after the sale the constable gave a receipt for the purchase-money of “ alease” and the receiver of the tenant, an insolvent, in consideration of the purchase-money beyond the rent and costs conveyed all “ his interest in the, lease” to the purchaser at the sale. Held, that this conveyance did not affect the contract between the two bidders. 4. The lease stipulated that a transfer of the lease without the written consent of the lessors should be a forfeiture. The receiver of the lessee could not transfer it without the written assent of the lessor.
74 Pa. 296McMarlan v. English (1873)
1. Where the transfer of possession of chattels corresponds with the nature of the property sold and the relation of the parties, the sale will be valid unless fraudulent in fact. 2. Where there has been an actual and continued change of possession the court cannot pronounce the sale fraudulent in law. 3. The separation of the property from the possession of the vendor must be at the time of sale or a reasonable time afterwards: and may be made by surrendering the power over it to the vendee. 4. The question of fraudulent sale under the facts in this case for the jury. 5. Billingsley v. White, 9 P. IT. Smith 464 ; McKibben v. Martin, 14 P. ]?. Smith 352, recognised.
74 Pa. 300Duff v. Wynkoop (1874)
Error to the Court of Common Pleas of Forest county: No. 108, of October and November Term 1873. This was an action of ejectment, brought May 17th 1866, by Samuel Duff against L. C. Wynkoop, James W. Guthrie, Milton Wynkoop and W. S. Wynkoop, for six hundred acres of land, known as the “ Nelson Strong” tract. John Heath was afterwards admitted as a co-defendant. The case was tried September 27th 1870, before Campbell, P. J. The plaintiff gave in evidence a judgment, Thomas Mellon, for the use of Samuel Duff, against James W. Guthrie and Jacob McFadden, entered in the Court of Common Pleas of Forest county, to December Term 1861; debt, $3953.42. Scire facias to same term returned “nihil;” alias scire facias to February Term 1862 returned “nihil.” Judgment May 26th 1862, liquidated at $5248.16. Fi. fa. to September Term 1862; levy on two tracts of real estate — one of four hundred acres, in Millstone township, in the name of Nelson Strong. Vend. ex. to December Term 1862; “stayed.” Alias vend. ex. to February Term 1863; “stayed.” Pluries vend. ex. to May Term 1863 ; sold to Samuel Duff for $375. Deed, William Fox, sheriff, to Samuel Duff, for four hundred acres, being the Strong tract, dated May 26th 1863, and acknowledged in open court on the same day. The Mellon judgment had been originally entered in Clarion county and certified to Jefferson county; Forest county was separated from Jefferson for judicial purposes in September 1857, and the judgment was entered in Forest county by a transcript from Jefferson county. After the above-stated proceedings under it, the Court of Common Pleas of Forest county struck off both the judgment on the scire facias and the original .entry in that county on the Jefferson county transcript. On error the Supreme Court affirmed the order of the court below (1 P. F. Smith 116). The plaintiff gave evidence of sale for taxes of tract of six hundred and fifty acres, in Millstone township,In the name of Nelson Stoong, to Elizabeth Wynkoop. Deed to her from the treasurer of Forest county, dated October 27th 1862; acknowledged December 23d 1862; assignment, August 13th 1864, endorsed on treasurer’s deed, Elizabeth Wynkoop to Samuel Duff; acknowledged the same day. He also gave in evidence affidavits of J. W. Guthrie to open the Mellon judgment, to show that he claimed a portion of the proceeds of the sheriff’s sale. The plaintiff rested. The defendants gave in evidence deed of Charles J. Fox, county treasurer, dated December 28th 1850, to Paul Darling, for the land in dispute ; assignment, Paul Darling to John Heath, December 26th 1860; endorsed on deed. Deed, October 1st 1865, John Heath to L. C. Wynkoop. Deed, September 25th 1866, John W. Miller’, treasurer, to R. G. Wright, for same land, sold for taxes of 1864, 1865; acknowledged in open court the same day; assignment, dated October 15th 1868, R. G. Wright to W. S. Winkoop; acknowledged same day. They gave in evidence treasurer’s deed-book, showing erasures in the record of the sale to E. Wynkoop ; it was marked “ Sold by mistake,” and a pen drawn over “ E. Wynkoop. ’ Also in unseated land-book: “ June 10th 1862, $650, Wynkoop E.; paid by L. C. Wynkoop, for 1860 and 1861.” Also in treasurer's deed-book, kept by prothonotar-y at the record of deed to E. Wynkoop was: “ This deed not acknowledged — error.” Defendants gave evidence that Jonathan Hays was the treasurer of the county when the deed to Elizabeth Wynkoop was made, and that the signature “Jonathan Hays” was not in his handwriting, but in that of his deputy. There was much evidence given as to irregularities and errors in the entries of the records of the tax-sales; also evidence for the purpose of showing fraud by both parties in relation to their respective titles to the land. What has been given, with the instructions of the court below, will sufficiently present the questions decided by the Supreme Court. The following are points of the plaintiff, with their answers:— 1. If the jury believe that J. W. Guthrie claimed and obtained a credit on the Mellon judgment, for the proceeds of the sheriff’s sale of the tract in dispute to Samuel Duff, all the title that Guthrie had in the premises passed by the sheriff’s sale to Duff, and so far as Guthrie is concerned the plaintiff would be entitled to recover. Answer: “ We answer the plaintiff’s first point that if J. W. Guthrie, by his own act, claimed and received the proceeds of the sheriff’s sale, or any part of it, or even with his own consent received a credit on a judgment against him, the law would be as stated in this point. But if the sale was made, the money paid in and distributed by the sheriff, without any agency or assent of Guthrie, he would not be estopped from controverting the title in the sheriff’s vendee; and if he was the plaintiff in the judgment on which the sale was made, in that event we instruct you that the sale would be void.” 8. The jury should disregard all parol evidence tending to show that the treasurer’s deed to Elizabeth Wynkoop was not executed and acknowledged by Jonathan Hays, treasurer ; as it is not competent thus to contradict the certificate of acknowledgment upon the face of the deed, under the seal of court, as said certificate is not itself impeached. Answer: “ We refuse to answer this point as requested.” The defendants’ second point and its answer were:— As against the title derived by Heath and L. C. Wynkoop from Paul Darling (the treasurer’s vendee of 1858), the plaintiff has shown no title outside of the treasurer’s title to Elizabeth Wynkoop ; and if the jury believe from the evidence either that Jonathan Hays, the treasurer, did not execute that treasurer’s deed, or that it was not properly acknowledged, or that the land was not sold at public sale, as required by the Act of Assembly, or that the transfer from Elizabeth Wynkoop was not a sale, but a redemption, or procured by Duff by fraudulent representations — in either case they must find for the defendants. Answer: [“ We answer this point that if Jonathan Hays, the treasurer, did not make the deed to Elizabeth Wynkoop, if it was signed by some one else writing his name to it, his acknowledgment of it in the Court of Common Pleas would not make it valid;] that if the sale was not made at a public Sale, as provided by Act of Assembly — if the deed -was made out to Elizabeth Wynkoop without a public sale, or if it was sold after the taxes were paid and a receipt for them on the treasurer’s land-book — the treasurer’s sale would be void and would vest no title in the purchaser. If Duff procured this deed fraudulently, or used it for a purpose in fraud of his agreement with Wynkoop,.it would be invalid to enable him to hold the land in fraud of his agreement. This evidence is for you, and as the alleged contract is somewhat remarkable, you will examine it carefully. Thus far we answer this point in the affirmative.” The verdict was for the defendants. The plaintiff took a writ of error, and assigned for error — ■ 1. The answer to his first point. 5. The answer to his eighth point. 6. The answer to that part of defendants’ second point in brackets.
74 Pa. 306Follansbee v. Walker (1873)
Error to the Court of Common Pleas of Erie county: Of October and November Term 1873. This was an action brought May 18th 1871, by Joshua Follansbee and William Walker, trading as Walker & Follansbee, for the use of Joshua Follansbee, against John W. Walker and H. N. Armstrong, trading as Walker & Armstrong. The plaintiffs filed a narr. in assumpsit in the common counts, and also the following claim: — • October, 1866. Walker & Armstrong, Er. To 564 tons coal at $8.25 . . $4484.17 Credit by cash, • . $1500.00 By price of one-half interest in coal-yard, fixtures, &c., 1598.73 $3098.73 $1685.44 Add interest. The defendants pleaded “ non assumpserunt,” and also a special plea, that Joshua Follansbee to No. 92 of November Term 1868, in Court of Common Pleas of Erie county, impleaded the defendants for not performing the identical promises and undertakings mentioned in the declaration in this case, that the case was tried by a jury on the 28th of March 1871, and a verdict rendered for the defendants upon which, judgment was afterwards entered in favor of the defendants, which remains unreversed, &c. The plaintiffs replied : that the suit of No. 92 of November Term 1868 was brought on promises alleged in the declaration in that case to have been made to Joshua Follansbee alone; that therefore neither the parties nor the promises are the same: and further, the defendants in that suit alleged that the promises were made by them to Joshua Follansbee and William Walker jointly, and the consideration for the promises was received by Walker & Follansbee from their joint property, and the defendants supported their defence on that ground, and testified as witnesses on the trial of the case that the promises mentioned in the declaration in that case were to Follansbee & Walker jointly, and not to Follansbee alone, and requested the court to charge the jury that if they believed the testimony of the defendants, Follansbee could not recover; and the court did so charge, and further charged that by finding a verdict for the defendants, on the ground of the nonjoinder of the said William Walker as plaintiff, Walker & Follansbee would not be precluded from recovering in a joint action, and the verdict was found on that defence and on no other ground whatever. This case was tried April 15th 1873, before Wetmore, P. J. The plaintiffs gave evidence of their claim as filed and rested. It was admiited that the claim presented in this suit is the same as that given in evidence in the former suit. The defendants then offered in evidence the record in the former suit. The plaintiffs objected to the offer on the ground that the parties are not the same, and that the jury in that case passed on the question whether Eollansbee had a right to sue, and not on the merits. The offer was admitted and bill of exceptions sealed. The record showed an action in assumpsit, “Joshua Eollansbee v. Walker & Armstrong,” of the number, &c., set out in the special plea; copy of claim filed; judge’s notes of testimony, which amongst other things contained evidence that the contract of sale was with the firm of Eollansbee & Walker; the charge of the judge who tried the case, in which he said to the jury that there was a preliminary question for them to decide, viz.: whether the transaction was with Eollansbee alone, for if the transaction was with Eollansbee & Walker, the plaintiff could not recover in his name alone. The verdict then was for the defendant. The defendants here rested. The plaintiffs in rebuttal offered to show by members of the jury who were impannelled in the case of Eollansbee v. Walker & Armstrong, No. 92, Nov. Term 1868, that the jury decided only on the preliminary question submitted by the court, whether or not the transaction was with a firm called Walker & Eollansbee, or with Eollansbee alone, and that they did not pass on the accounts between the parties submitted to them in a subsequent part of the charge. The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed. The verdict was for the defendants. The plaintiff, Eollansbee, took a writ of error and assigned the decisions of the court on the offers of evidence, for error.
74 Pa. 311Wolford v. Herrington (1873)
1. If one having an interest in land, is induced to confide in the verbal promise of another that he will purchase at' sheriff's sale for the benefit of the former and in consequence the other is allowed to obtain, the legal title, his denial of the confidence is such fraud as will make him a trustee ex maleficio. 2. An execution was issued against "Wolford, his wife holding an unrecorded deed for land levied on as his ; on the eve of the sheriff's sale, Herrington knowing of the deed, told the wife, that her title was doubtful and if she would allow him to buy the land at sheriff’s sale he would execute a writing before the property was struck off, declaring he bought for her. He bought the property, but refused to execute the writing. Held, that he was trustee ex maleficio for the wife. 3. He would, be such trustee although Mrs. Wolford had had no interest in the land. 3. When it is part of the agreement that a trust shall be declared in writing or the trust be not inserted in a deed in accordance with a stipulation, a fraudulent intent at the time of making the agreement need not be shown. 5. Overton u.,Tracey, 14 S. & R. 326 ; Thomson v. White, 1 Dallas 447, followed.
74 Pa. 316Oil Creek & Allegheny River Railway Co. v. Keighron (1874)
1. Connected with a railroad was a branch on which were oil stations where the main company left their cars to be filled by the owners of the oil and then moved them. Two cars coupled together were placed at a station on a steep grade under charge of the oil company’s superintendent, none of the railroad company’s servants being there. The superintendent having filled one car, detached it to fill another : the first car ran down the grade, and collided with a locomotive which set fire to the cars and burned a neighboring house. In a suit against the company for burning the house : Held, that as between the company and third persons, they were liable for the negligence of the superintendent as their servant. 2. Damages to be recovered must be the natural and proximate consequence of the act complained of. 3. Under the circumstances of this case the cause not too remote. 4. Penna. B. B. v. Kerr, 12 P. P. Smith 353, referred to.
74 Pa. 320Baum v. Reed (1874)
115, to October and November Term 1873. On the 20th of December 1851, Andrew F. Baum instituted an action of ejectment against William Reed. On the 13th of May 1853 there was a verdict for the defendant. On the 27th of April 1871, the verdict fee was paid and judgment was entered on the verdict. The defendant’s bill of costs at May Term 1853, was $108.64. The correctness of this bill was verified by the defendant’s affidavit and filed May 30th 1853.
74 Pa. 323Selden's Appeal (1873)
1. Land of Mrs. Perkins, her husband living, was subject to a first mortgage to Metcalf, and a second to Selden. She contracted to sell part: to make title it was agreed between all the parties that the land should be sold under Metcalf's mortgage, purchased by him, he convey to the vendee, receive that purchase-money, and convey the remainder to Mrs. Perkins, the balance of his mortgage to he secured on the remainder and the Selden mortgage to come in next after that. After the sale to Metcalf and before he conveyed to Mrs. Perkins, she and her husband made a mortgage to him, then one to Brecht, both which were recorded ; and then executed the Selden mortgage which was not acknowledged by Mrs. Perkins : the Metcalf mortgage was assigned to Brecht. Afterwards Metcalf conveyed to Mrs. Perkins: the Metcalf and the Brecht mortgage were recorded a second time and the other mortgages were recorded after them on the same day. The land having been sold under the first mortgage : Eelcl, that Brecht nor Selden had any lien on the fund arising from the sale. 2. Mrs. Perkins had no legal title under the agreement, hut an equitable right grounded upon the agreement at the sheriff's sale to reinstate the mortgages on her part of the land according to their respective priorities. 3. A chancellor would not order Metcalf to convey to her without requiring her to carry out the agreement. í. The second recording of the Brecht mortgage after delivering the deed to Mrs. Perkins did not cure her want of title when she executed it. 5. In the distribution of the fund, Selden in equity was entitled to priority over Brecht on his individual mortgage.
74 Pa. 329Cowan's Appeal (1873)
1. A testator devised land to all his children, after tne date of his will another was born, at his death the last and the three others were minors. Held, that under Acts of April 3d 1840, sect. 4, April 10th 1849, sect. 10, the Orphans’ Court had jurisdiction in partition of the real estate devised. 2. A devise was “ The farm, &c., I leave jointly and equally to my six children and if my wife may think best to have guardians appointed for my children, such guardians will have the last three properties sold and the money arising from such sale placed at interest for the use of my children, my wife joining the guardians or consenting to such sale.” Held, that this was . a devise directly to the children, subject to a power of sale conditional on the consent of the widow. 3. Upon the birth of the last child the devise opened and she took her share under the intestate laws. 4. A testator gave to his wife the rents and profits of a farm “ during her natural life so long remaining my widow,” he then gave the farm to my son Matthew on the event of his mother's death, if on the happening of such he may be 21 years old; not before her demise and his arriving at 21 years can he claim any control or ownership.” Matthew attained 21, the widow married and he took possession of the land : — he was appointed guardian of a minor child of testator. Partition in the Orphans’ Court was had of all the testator’s real estate including this farm, which was adjudged to him, and other land to the four minors jointly, they afterwards had partition amongst themselves in the Common Pleas. Pour months after the ward came of age, she, with the widow and her husband find all the other children executed a release to Matthew of all their interest in the farm ; there was no fraud in the release. Held, that these proceedings vested the farm in Matthew in severalty. 5. Under the circumstances the release was carrying out a family arrangement of what had been before done and not a mere release from ward to guardian. 6. The tract devised to widow during widowhood was also adjudged to Matthew, in the same partition. Held, that he took it discharged from any trust as guardian. 7. Eberts v. Eberts, 5 P. P. Smith 110; Stanley’s Appeal, 8 Barr 431, distinguished. Johnston v. Purnier, 19 P. P. Smith 449, followed.
74 Pa. 339Karns v. Tanner (1873)
Error to the Court of Common Pleas of Armstrong county: No. 62, of October and November Term 1873. This was an action of trespass for mesne profits, brought January 12th 1871, by Frances E. Tanner against S. D. Karns, John Karns and Fullerton Parker; S. D. Karns and Parker only were served. On the 17th of March 1869, James P. Tanner brought an action of ejectment against the above defendants and others for a lot of land and mineral privileges in Armstrong county. On the 13th of April 1869, Tanner died, having made a will by which he directed that his minor children should be educated by his wife, Frances E. Tanner, the plaintiff in this suit, out of what he might give her for her own support, and appointed her guardian of his minor children. He then gave to her for life all his property, real and personal,‘‘ together with the rents, issues and profits of the same; ” and after her death he gave the same property to all his children and Charles E. Tillinghast in equal shares in fee. “ Should the rents, issues and profits, hereinbefore given and bequeathed unto my beloved wife, Frances E. Tanner, for the term of her natural life, be insufficient to support her in a modest and retiring manner, such as she has been accustomed to, I authorize and empower her to sell such part or parts of my estate (above bequeathed to her for life, and at her death devised and bequeathed to my children and Charles Foster Tillinghast), whether real, personal or mixed, as she may deem necessary for her support, and in the event of such sale by her made, I direct that any purchasers of any such part or parts of my said estate, shall not be responsible for the non-application or the misapplication of the proceeds thereof. I further direct that my said wife shall be the sole judge as to the amount she will need for her support, the manner and time of selling, the amount to be received from such sale or sales, and all things thereunto pertaining; and I do further empower her to give receipts to the purchaser or purchasers of personalty, and to execute deeds in the event of a sale of realty by her, as fully and as freely as if I had hereinbefore given her my whole estate, absolutely and in fee simple; the object of this clause of my will, being to give my wife an absolute interest in all my personalty, and an estate in fee simple in all my realty, in the event of the income of my estate not being sufficient to support her. * * * “ I hereby constitute and appoint my beloved wife, Frances E. Tanner, my sole executrix of this my last will and testament, clothing her with full authority to sell such part or parts of my real estate as may be necessary for the payment of my debts, and to execute deeds as fully and as freely as myself if living. It is my desire that she shall enter upon the discharge of her duties, as my sole executrix, without giving security, as I am very sure justice will be done by her with rigid and exact impartiality.” Pending the action, the premises in controversy in the ejectment were sold by the sheriff under an execution issued against James P. Tanner in his lifetime, and Mrs. Tanner became the purchaser. On the 12th of June 1869, the death of the plaintiff in the ejectment was suggested, and “Frances E. Tanner, executrix,” substituted. On the 8th of March 1870, the record was amended by striking out “executrix,” &c., after Mrs. Tanner’s name, and inserting “ the purchaser of the interest of James P. Tanner at sheriff’s sale.” On the 17th of March 1870, the jury rendered a verdict for the plaintiff, on which judgment was entered on the 19th, and after being removed to the Supreme Court was affirmed January 9th 1871 (16 P. E. Smith 297). On the trial of this case, March -30th 1873, before Lowrie, P. J., of the 30th district, the foregoing facts were given in evidence under objection and exception. Evidence was given by the plaintiff for the purpose of showing the value of the mesne profits. Other evidence was offered by each party, which was rejected by the court. The defendants submitted these points, which were refused:— 1. That the plaintiff is not entitled to recover except from the 8th day of March 1870, the time when she was substituted as plaintiff in the ejectment. 2. That the plaintiff is entitled to recover but from the date of the acknowledgment of the sheriff’s deed to her, June 9th 1869. The verdict was for the plaintiff for $19,857.37. Upon the removal of the record to the Supreme Court, the defendants assigned the .refusal of their points for error.
74 Pa. 343Treftz v. Pitts (1873)
1. An ejectment on an equitable title is a substitute for a bill in equity, and. the verdict and judgment have the same conclusive effect as the decree of a chancellor. 2. In a second action of ejectment parol evidence is admissible to show that the recovery in the first ejectment was on an equitable title. E. Meyers v. Hill, 10 Wright 9, recognised. Paul v. Oliphant, 2 Harris 242 ; Peterman a. Iluling, 7 Casey 432, remarked on.
74 Pa. 350Treftz v. King (1873)
140, to October and November Term 1873. On the 21st of February 1848 an action of ejectment was brought, at the suit of George S. King and others, against J. John Treftz and others, on an equitable title. On the 6th of July 1849 the jury found for the plaintiffs, and judgment was entered on the verdict. The record was removed to the Supreme Court, and the -iudgment was affirmed October 25th 1851.
74 Pa. 351Simpson's v. Bovard (1874)
Error to the Court of Common Pleas of Armstrong county: No. 156, to October and November Term 1873. To March Term 1867, of the court below, judgment was entered by the prothonotary in the Court of" Common Pleas in favor of James Simpson against Hugh Campbell and George Bovard for $1342 on a note with warrant of attorney. In June 1869, on the affidavit of George Bovard, a rule was granted to show cause why-the judgment should not be opened and the defendant let into a defence. The affidavit set forth that Campbell in the spring of 1866 exhibited to deponent a judgment-note to w7hich there were no signatures and without any amount in it, and wished deponent to sign the note for $1000, as security to Simpson for Campbell, that Charles Bonner was to be the other surety and that the note would not be delivered till signed by Bonner ; that the deponent relying on these statements signed the note believing it wTas for $1000, and that it would he signed by Bonner; and never knew otherwise until judgment was entered on it on the 24th of April 1867; that he frequently requested Simpson to have judgment entered on the note, collect it and relieve the deponent; on the 23d day of May 1867, Campbell made an assignment for the benefit of his creditors, and on that day before the assignment, deponent requested Simpson to enter judgment on the note and if he had so done it would have been secured, that Simpson did not enter it till after the assignment; that Simpson knew of the agreement with Campbell that the note was to be filled with $1000, and not to he binding unless signed by Bonner, and with that knowledge accepted the note without Bonner’s signature. Simpson having died, John Patterson his executor was substituted. On the 24th of November 1869, the rule was made absolute and an issue awarded to try the truth of the allegations in the affidavit. The issue was tried September 13th 1871, before Logan, P. J. The plaintiff gave in evidence the note as follows:— “$1342. . 12th May, A. D. 1866. One year after date, we, or either of us, promise to pay James Simpson, Sr., heirs or assigns, the sum of thirteen hundred and forty-two dollars and-cents, without defalcation, value received, and we hereby authorize any attorney of any court of record of the United States or elsewhere, to appear for us, and after a declaration filed, to confess judgment against us for the above sum, &c., * * * the further sum of five cents on the dollar for collection fees, &e. * * * Witness our hands and seals. Hugh Campbell. [Seal." Geo. Bovard, Bail. [Seal.] —--, Bail. [Seal.] There were endorsements on the note of payments; and of receipts from Campbell’s estate. The plaintiff here rested. The defendant called Hugh Campbell as a witness; he was objected to as incompetent, being a co-obligor in the note, and Simpson being dead, and also to his proposed evidence which is hereafter given. The testimony was admitted and a bill of exceptions sealed. He testified that the word “ bail” after the defendant’s signature, and that the word “ bail,” to the third seal and the filling up of the note were in his handwriting; part of the note was filled in at Kittanning and the amount at the house of Simpson; Bovard was not then present. When Bovard signed the note, neither the written amount nor commission of five per cent, were in the note; witness told defendant he would get Bonner’s name to the note; defendant asked the amount, witness said the reason he did not put it in, was because he did not know whether they would draw the interest, if they did he would pay it; that the original amount Avas $1000. Defendant said it would do as it was. Witness executed an assignment for benefit of creditors, April 23d 1867, about 11 o’clock at night. On cross-examination Avitness said: “ I told Bovard, I had originally borrowed $1000, but I did not know Avhat the interest was. I was to fill the note up as I did; after Bovard signed, he delivered the note to me — did not say he would not sign unless I got Bonner; don’t recollect of his saying-anything about Bonner. Did not tell Simpson, that I had told Bovard I would get Bonner to sign the note; he said his father and' sister were satisfied with the note as it was, and he was ; this may have been afterwards. I did not tell Geo. Bovard I was to fill the note up with the original amount and interest. Told Bovard the amount of the note, $1000; told him that I Avould fill the note, with interest, if it was not drawn; that was the understanding. Told him I could not tell amount of 'interest; there was nothing said about putting the interest in the note.” The evidence Avas that Simpson’s house was four or five miles from Kittanning, the county seat of Armstrong county; Bovard’s was about one mile from Kittanning; the road to Kittanning from Simpson’s house passed defendant’s store, and the railroad passed near the defendant’s store, the train going at about 6 or 7 o’clock in the evening. Charles Bovard, son of defendant, testified, that he delivered to John Simpson, a son of James Simpson, a paper on the afternoon of April 23d 1867, signed by defendant, telling John Simpson to come up and enter judgment on the note, and if he did not defendant would not be “bail” any longer. James Simpson’s name was not in the paper ; he testified that he gave the note to John Simpson about 4 o’clock P. M.; and that there was plenty .of time to go from Simpson’s to Kittanning after the note was delivered. The defendant called Patterson, the executor, and offered to prove by him declarations of John Simpson in relation to giving the note; this was objected to by the plaintiff on the grounds that there was no proof of John’s agency, and John himself was present in the court-house. The offer was admitted and a bill of exceptions sealed. The witness testified: “Before Campbell gave the new note, John Simpson told me that Campbell was to get Geo. Bovard and Chas. Bonner on the note. He told me that he had nothing to do with taking any security unless his father and sister were satisfied. He said he told Campbell that there were to be two names, and he showed it to his father and sister, who said Bovard was enough. John Simpson did not say this conversation was at time of taking note; said that James Simpson and his daughter wanted a new note, with security, and wanted to see Mr. Campbell and have a new note with security. First note had no security.” Defendant gave evidence as to the amount of the real estate of Campbell, and that all the liens prior to the assignment were paid from its proceeds; that one judgment for $>10,000 was entered .against him at 9.40 o’clock in the evening of the assignment. There was evidence that John Simpson, son of James, said before the note was executed that Campbell was to get Bovard and Bonner on it. John Simpson, in rebuttal, testified for plaintiff that he was not the agent for his father to collect this note; that Charles Bovard came to the house between 5 and 6 o’clock of April 23d, but gave witness no paper. He said his father wanted to see ■witness that evening; witness said it was too late, the office would be shut and nothing could bo done. Witness went up next morning as early as he could; left home at 6 o’clock in the morning; stopped at defendant’s, who said he had better go on, “ there is a heap of money going to be entered to-day.” Witness handed the note to the prothonotary about 8 o’clock on the morning of the 24th. James Simpson was about ninety years old, and did very little business. Witness kept the note for his father from the time Campbell gave it to him until it was entered, and received payments on it. , There was other evidence that the defendant’s sons came to Simpson’s between 5 and 6 o’clock on the evening of the 23d of April about entering the note. The following are points of the plaintiff, with their answers:— 1. If the note in controversy was signed and delivered to Campbell by the defendant, with the understanding that another not named in the note should sign before it was delivered to Simpson; and it was delivered without such signature being obtained and received by Simpson;- without notice of such understanding or circumstance which should put him upon inquiry, the understanding between Campbell and the defendant will not avail the defendant. Answer: “ Affirmed, with the qualification that if the jury believe the note was filled up by Campbell, in the presence of Simpson and absence of Bovard, this-was such a circumstance as put him on his inquiry.” 2. If the- note in controversy was signed and delivered to Campbell by the defendant in blank, with the understanding between them that it was to be filled up to secure a note of one thousand .dollars, and that it was filled up by Campbell before it was delivered to Simpson for any greater amounts, and received by Simpson, without notice of such understanding between Campbell and the defendant, that will not avail the defendant, and he is bound by his signature at least for the sum of one thousand dollars, with interest from the date of the note, and with the commission of five per cent, for collection. Answered in the negative. 3. The testimony of the defendant, taken as true, is not sufficient in law to establish either general or special agency of John Simpson, and his declarations given in evidence are to be disregarded by the jury, and no notice having been served on James Simpson, this part of the defendant’s case fails. Answer: “It is for the jury to say whether John Simpson was acting as agent of James Simpson, and we answer this point in the negative.” 4. James Simpson, the obligee of the note, was not bound to enter up the note in controversy as a judgment, with or without notice, before the note became due. “ Answered in the negative, if the jury believe there was any real estate on which the entry of a judgment on the note could have secured the money.” 5. There is not any evidence in this case that the defendant signed the note in controversy, upon the condition or with the understanding that the name of Bonner or any one else was to join him in it as Co-security, and therefore the defence cannot be sustained on the grounds alleged by defendant in relation thereto. Answered in the negative. 6. Under the evidence in this cause James Simpson, the obligee, was not bound, even if the jury find the facts as testified to by Charles Bovard, to enter up the note before eleven o’clock the night of the 23d April 1867, nor was he bound to enter the same before it came due. Answer: “ This is a question of reasonable diligence for the jury, and we cannot instruct as requested.” 7. If James Simpson was bound to enter up the note as a judgment on the notice of Mr. Bovard, he would be entitled to reasonable notice; and if such notice was not given, and the notice itself did not state some sufficient reason for immediate action, then he was not bound to enter it up that night. Answer : “ This is also for the jury to say whether, under all the circumstances, there was reasonable diligence exercised.” 8. Under all the evidence in this case, the plaintiff is entitled to recover, and the verdict should be accordingly. Answered in the negative. The following were points of the defendants, which were affirmed :— 1. If the jury believe from the evidence that at the time of signing the note in suit by George Bovard, the three seals were to it as they now stand, and so exhibited to said Bovard, with the promise of Hugh Campbell that he would procure Charles Bonner or another solvent man to sign the note as co-security of Bovard, and upon the faith of these facts Bovard signed the note, and these facts were known to James Simpson or his agent, and the note delivered by Campbell and received by Simpson, without another name, he (Simpson) dispensing with such name, and that said action has resulted to the injury of Bovard, the plaintiffs cannot recover. 2. If the jury find from the evidence that prior to the assignment of Hugh Campbell, and up to the hour of executing the same, Campbell was possessed of real estate in the county abundantly sufficient upon the sale to pay all prior liens, and the amount of the note in suit had it been entered, and that Bovard had notified the plaintiff or his agent having the custody of the said note, to enter judgment on said note sufficient length of time before such assignment, to enable him with reasonable diligence to comply with such notice, and he failed and neglected to do so, and by reason thereof the money was not secured from the estate of Campbell, the plaintiff cannot recover from Bovard in this action. The court charged :— * * * “ The defendants insist that by the testimony offered on their part, such a showing is made as justifies the jury in finding the note not to be that of the defendant, George Bovard. * * * A man has the right to sign a paper of this kind in blank with instructions to the person in whose hand he places it, to fill it up ; and if that instruction be complied with, the note filled up and used according to the terms upon the condition and in the manner directed at the time of signing, then the obligation will be binding, and the note good in the hands of the holder. * * * It would not seem to be disputed that the note was signed in blank by Bovard, and by him delivered to Campbell; nor does there seem to be any dispute that the note was filled with the name of Simpson the obligee. It is contended, however, on the part of the defendant’s counsel: — • “ 1. That the direction and agreement was not complied with by Campbell; that is, that the note was to be filled for $1000, and was filled for a larger sum. “ 2. That Bovard signed on the faith of another solvent man going upon the note as co-surety with him before its delivery to Simpson, and that no such name was procured; and that there were such circumstances attending the delivery to Simpson, as in either event should have put 'him upon his guard and inquiry. These are both largely questions for you. As to the first of these points, [if there was a distinct amount named and agreed upon by Bovard, for which the note was to be filled up, and this express agreement was violated by Campbell under such circumstances as should reasonably have put Simpson on his guard, or if he had notice of the fact, then this would be a good defence to the note.] If, however, Bovard signed the note leaving to Campbell by an understanding and agreement,' either to fill up the amount of the principal of the note, or the.same with the addition of the interest accrued on the Simpson indebtedness then existing, this would be a joint delegation, and the signing under such circumstances if the other necessary requisites existed, no default subsequently would entitle the plaintiff to recover. There must be express authority to fill. “ As to the second, [if you believe from the testimony in the case that Bovard signed the note on the faith of Campbell obtaining with him a co-surety of solvency, and he signed it upon such agreement or understanding with Campbell, and that Simpson either had notice of this or there were such circumstances as should reasonably have put him upon his inquiry, then this would constitute a defence to the note in the hands of Simpson in this action against the surety if delivered' without such surety.] If, however, Bovard did not sign in such confidence, but meant to stand as single security for Campbell for the amount of either debt or debt and interest, the result would be different. It is not insisted by defendant’s counsel that-.the simple occurrence of either of these circumstances between Campbell and Bovard would alone be sufficient. We speak from the propositions submitted, but concede that knowledge must be brought home to Simpson. “ If you find sufficient evidence of either of these circumstances, before you can allow it as a defence to these notes, you must, as we have said, find actual notice brought home to Simpson or his agent, or such circumstances as would reasonably put him on his inquiry as to whether there was actual notice. This is a matter purely for you. Whether there were such circumstances as should reasonably have put him on inquiry, which is also for you, may be inferred from the facts, [if you find it to be true that the note was brought to Simpson in blank and filled in his presence, and had an additional seal thereon. If Campbell exercised the delegation from Bovard of filling the note up in the presence of Simpson, then Simpson had notice that the filling of amount and conditions upon which it was delivered, were upon Campbell’s part the exercise at most of a delegation by Bovard to Simpson, not till then a part of the instrument, and he took the chances of that delegation being properly executed.] “ This brings you to the question of agency. An agent is one who acts in the place or stead of another, and your inquiry is whether, in the matter of this note, John Simpson was acting for James Simpson. Agency may be established by direct evidence, as by express words of appointment, or indirect evidence, as of the relative situation of the parties or their habit and course of dealing. [If John was acting for James, then you will treat the interview bteween Campbell and John as though James were present.] If you believe that James was present, as testified by John, at that interview when the note was delivered, then you can find him acting for himself. “ If the note was good up till here, was there notice ? If the creditor be requested by the surety to sue the debtor, and neglect or refuse to do so, the surety will'be discharged, provided the request be positive and accompanied with a declaration that, unless complied with, the surety will be considered as discharged, and the request must be proved clearly and beyond all doubt. The principal is, however, only held to reasonable diligence, under all the circumstances in the case, but is not held to more than this. In this case there is a contradiction between the witnesses as to both the time and terms of the notice. Bovard’s witnesses fix the notice at before four o’clock on the 23d, and that there was express and legal notice to John Simpson in form. On the other side the time is fixed at between five and six o’clock, and that there was no express direction, and nothing said as to any peculiar circumstances requiring instant action. How was this ? Was there reasonable diligence exercised if the notice was to a competent person and actually made ? It is alleged, however, this note Was not due, and therefore a notice was not applicable. [This was a judgment-note, and could have been entered up, and if there was any real estate of the principal debtor upon which a lien could have been secured by the entry of the judgment, by the exercise of reasonable diligence on the part of the obligee, and you believe the fact of sufficient notice, and the absence of reasonable diligence in entering the note, and thereby the money could not be made out of Campbell’s real estate; which could otherwise have been made, then this would constitute a good defence.] If part only of the money could have been thus secured, then the defence would be pro rata. [If John was the agent of James Simpson, authorized and held out as such to Bovard, and so acting at the time of the alleged notice, notice to him would be sufficient.”] The verdict was for the defendant. The plaintiff sued out a writ of error, and assigned for error:— 1 and 2. The admission of Campbell to testify. 3. Admitting the testimony of John Patterson. 4. The answer to the plaintiff’s first point. 5. The answer to the plaintiff’s second point. 6. The answer to the plaintiff’s third point. ■ 7. The answer to the’plaintiff’s fifth point. 8. The answer to the plaintiff’s seventh point. 9. The answer to the plaintiff’s eighth point. 10. The answer to the defendant’s first point. 11. The answer to the defendant’s second point. 12-17. The portions of the charge in brackets.
74 Pa. 362Pittsburg, Virginia & Charleston Railroad v. Rose (1873)
Error to the Court of Common Pleas of Allegheny county: No. 68, to October and November Term 1873. The proceeding in this case commenced May 20th 1872, by the petition of August Bose, the owner of certain lots on Manor street, in the borough of Birmingham, for the appointment of viewers to estimate and determine the damages sustained by him in the location, &e., by the Pittsburg, Virginia and Charleston Bailway Company of their railroad, by reason of an embankment made in constructing the railway along that street, and to estimate, &c., the value of the petitioner’s land taken by the company. The company was incorporated April 8th 1867, subject to the provisions of the General Bailroad .Law of February 19th 1849, the 10th section of which amongst other things provides, “ That whenever any company shall locate its road in and upon any street or alley, in any city or borough, ample compensation shall be made to the owners of lots fronting upon such street or alley, for any damages they may sustain, by reason of any excavation or embankment made in the construction of such road, to be ascertained as other damages are authorized to be ascertained by this act.” Viewers were appointed, from whose report, made August 24th 1872, the company appealed. The appeal was tried March 12th 1873, before Stowe, J. The plaintiff gave evidence, that, he was the owner of property 40 feet front on Manor street; that he had erected a three-storied frame house, and fitted it up for a store six years previously; he carried on business there, and rented out a frame house which he had on the same-premises. The plaintiff then offered “ to show that the one and one-half story frame house on one of his lots-fronting on Manor street was readily rented by him to tenants before the location and construction of the defendants’ road along the said street, but since the excavations and embankments made’ along said street in the construction of defendants’ road, the property is difficult to rent; and to show that for a portion of the time the property remained uninhabited, it being impossible to procure tenants for the same. This for the purpose of allowing the jury one means of estimating the damage done to plaintiff.” The defendants objected to the evidence proposed “ as tending to consequential damages, and because, the only true measure of damages is the difference between the market value of the property before and after the location of the railroad, without reference to the purpose for which the building had been applied before building the railroad and the intention as to its future enjoyment; and because the plaintiff is not in law entitled to damages resulting from any excavations or embankments which do not change the established grade of the street, and no offer is made to show that the street in question had any established grade.” The evidence was admitted and a bill of exceptions sealed. The plaintiff gave evidence that he had difficulty in renting this house, and that when rented it was at much lower rates than before. He testified also in detail as to the'embankment, wall, &c., placed by the company in the street opposite his house and lot in constructing their road ; that its construction interfered much with his business; of the Value of his property before and since; that by reason of the embankment and insufficient culverts the rain flooded his cellar; that the great damage to his property was the erection of the embankment. He gave much evidence as to injury done to his property by the railroad; amongst other things, that the rails and ties prevented an approach to his house. The plaintiff having rested, the defendants read sects. 5 and 6 of Act of March 30th 1838, Pamph. L. 162, extending the limits of the borough of Birmingham, and requiring the burgess and council to make an accurate map of the extension, which should “ set forth all streets, squares, lanes and alleys which now are or previously to the making of said map shall have been laid out or appropriated for public use,” and the burgess, &c., should cause the map to be recorded in the recorder’s office of Allegheny county; and when recorded the streets, &c., should be deemed public highways. They then called Z. Remington, who testified that he had been employed by the borough of Birmingham ; made a plan in accordance with the Act of Assembly and delivered it to the burgess; that the plan showed him on the stand was the one which he had made; that he located the south line of Manor street in accordance with the plan about two years previously, in order to ascertain whether or not Rose’s property was on Manor street; he made Manor street 40 feet wide; he was told it was but 33 feet, but 7 feet were added on the other side of the street. According to the plan, “ the plaintiff is on Manor. street 7 feet 3 inches, and 2 feet at another point.” After other evidence by this witness and others bearing upon the location of Manor street in accordance with the map, the defendants offered it in evidence, for the purpose of showing the true location of Manor street, to be followed by evidence that this map had always been the recognised official plan of the borough of Birmingham, and to show that the plaintiff had encroached on the line of Manor street and was maintaining a nuisance on it; and that the injuries he alleged that he had sustained from the embankment, &c., would not exist if he were on the proper line of the street. The plaintiff objected to the offer; it was rejected, and bill of exceptions was sealed. They gave other evidence that the house of the plaintiff encroached several feet on Manor street; also that the street had been very irregular and in a bad condition until it had been graded by the defendants, and that if the railroad tracks were filled up it was not in a worse condition than it had been. J. M. Byers, the chief engineer of defendants, testified that the embankment had not been quite completed at the end of a stone walk built at the head of a cross' street (7th street), that was there to be graded off so that wagons could get up, and that the grade at 7th street was about what it had been before the railroad was built. The defendants then offered a plan showing the boundary of the borough of Birmingham, as made for the borough under the extension authorized by the Act of Assembly, in connection with +he evidence of Bemington, that it had been made by him at the instance of the borough authorities, showing the lines of Manor street when the plan was made, and that the plan has been the recognised official plan: for the purpose of showing that the property alleged by plaintiff to have been injured never1 was his property but a portion of Manor street. The offer was objected to by the plaintiff. The court said: “We think that the plan m connection with the evidence of Bemington is proper to go to the jury for the purpose of showing where the south line of Manor street is and was when the same was made, as shown by the actual location of street on the'ground at that time. But in no other respect do we think it is competent to go to the jury. It is admitted for that purpose alone.” The court sealed a bill of exceptions for the defendants. The defendants gave other evidence for the purpose of showing that the plaintiff was not -injured, and generally in answer to the plaintiff’s case. The following are points of the defendants with their answers :— 3. In arriving at the value of plaintiff’s property the jury are to inquire simply what the property would sell for at a fair, open sale in the market, without reference to its being used for any particular purpose, and that the best evidence of market value is the, 'price actually paid for land in that neighborhood, making due allowance for difference in position and improvements. “ Befused. We cannot say that an actual sale is the best evidence of the market value of lands. That it is some evidence when taken in connection with the opinion of witnesses as to the market value as the basis of it, is true, but when standing alone by itself is of no value, because it does not disclose the public and general estimate which, in cases like this, is a test of value.” 5. If the jury believe from all the evidence in the case, that the plaintiff’s houses encroached on Manor street (to the extent of seven feet or more), then, as a matter of law, «aid houses are a public nuisance and liable to removal at any time, and the jury cannot in their estimate of value include the price of said houses, nor allow plaintiff anything for damages resulting thereto. “Refused. The true rule is to estimate the damages to the property — houses and lots — taking and considering the houses to be on the proper line of the street.” 6. The map made by Remington, showing the south line of Manor street, offered in evidence in this case, being made in pursuance of the Act of Assembly recited and offered in evidence, and on record since 1839, is conclusive as to the location of the south line of Manor street, in the absence of any record evidence showing another location of said line, and if the jury believe that the plaintiff’s houses encroach on Manor street as defined by said map, the plaintiff cannot recover any damages for injuries resulting to the houses built on the street. “ Refused.” The following are points of the plaintiff which were affirmed:— 4. In determining the damage, if any, sustained by the plaintiff as owner of lots on Manor street, the jury may take into account the ties used by defendants’ company in the construction of their said railway in front of plaintiff’s property, and the ballasting or filling in, between the same. 6. In arriving at the estimate of damages, if any, suffered by embankment made by the defendant, in the construction of their railway along said street in front of plaintiff’s lots, they are to consider the embankment as it now exists, without reference to the improvements proposed by the company in grading and improving the street unconnected with the finishing of their railway. The verdict was for the plaintiff for $1029.16. The defendants took a writ of error ; they assigned for error: 1. Admitting the evidence as to the renting of the small storehouse. 2. The answer to the defendant’s 3d point. 3. 4. The rulings of the court on the offers of evidence of the plan of the streets in the borough of Birmingham. 5, 6. Affirming the 4th and 6th points of the plaintiff. 7. The answer to the defendant’s 6th point. 8. Refusing the defendant’s 6th point.
74 Pa. 371Real Estate Saving Institution v. Linder (1874)
Error to the District Court of Allegheny county: No. 130, to October and November Term 1873. This was an action on the case' brought March 22d 1873, by John Linder and Catharine his wife, in her right, against the Real Estate Savings Institution. ■ Mrs. Linder being the owner of real estate, a mortgage upon it was executed by herself and husband, to John Cassiday, who assigned the mortgage to the defendants in this suit; an instalment of the money secured by mortgage being due, a scire facias on it ,was issued. She set up as a defence that her signature and acknowledgment to the mortgage were obtained by actual compulsion of her husband, and, on the trial, a verdict was .•rendered in her favor; during the pendency of this suit, she sold lot “ No. 3 in block No. 13,” part of her real estate bound by the mortgage to James W. Mackrell. The purchaser, Mackrell, in order “ to secure himself against the lien of the mortgage and the possible contingencies of a suit on the same,” paid to the defendants $420 (which included .attorney’s commission), being one-half the purchase-money of said lot. The affidavit of claim set forth the forementioned facts, and in it, Mrs. Linder, plaintiff, further averred:— “ That said mortgage as to deponent having been judicially declared void, this suit is brought to recover from defendant the said $400, the attorney’s commission of five per cent., and the interest as aforesaid.” The affidavit of defence averring the execution of the mortgage mentioned in the claim by Linder and wife and its assignment to the defendants, further averred: “That-on or about the 18th of July 1865, the said defendants instituted suit of scire facias on said mortgage. That on the 13th day of February 1866, James W. Mackrell, the brother of Henry C. Mackrell, the counsel of the said Catharine Linder, while the said suit of scire facias was pending and untried, the said Henry C., acting as attorney for his said brother therein, voluntarily offered to pay and did pay to the said Real Estate Savings Institution the sum of1 four hundred dollars, and twenty dollars attorney’s fee thereon, which this deponent believes the said defendant might, and could, in good conscience, receive, the same being the one-half o fthe conditional sum of eight hundred dollars, and twenty dollars attorney’s fees, due and owing from the said John Linder, to whom the proceeds of the said mortgage had been paid by the defendant, as a loan. That the liability of the said John Linder on said bond or mortgage has never been tried, the writ of scire facias never having been served on him. That said James W. Mackrell procured by the payment, pending the said suit, to the said defendants, the release of the said lot No. 3 from the lien of the said mortgage. “ That by the payment of the said four hundred and twenty dollars, by said James W. Mackrell, voluntarily, with the lis pendens staring him in the face, no right has arisen or been created whereby the said Catharine or the said John can recover the same from the defendant, and that the remedy, if any she have, is upon said James W. Mackrell for the whole of the purchase-money.” The court entered judgment for the plaintiff for $605.50 for want of a sufficient affidavit of defence. The defendants took a writ of error; they assigned for error, the entering of the judgment against the defendant for want of a sufficient affidavit of defence.
74 Pa. 373Hays v. Briggs (1874)
Error to the District Court of Allegheny county: No. 72, to October and November Term 1873. The proceeding in this case commenced August 5th 1871, by the petition of Thomas W. Briggs for leave to construct a lateral railroad through lands of James H. Hays and others, and to acquire a wharf or landing from said Hays’s land, on pool No. 1 of the Monongahela Slack Navigation Company. It was under an Act of Assembly of April 24th 1843 and its supplements. The tenth section of the original act (Pamph. L. 361, 2 Bright. Purd. 1239, pi. 139) is as follows: — - “ When the owners of any railroad, constituted under an act of this- Commonwealth, possess the landing at the termination of the said railroad, where it joins any canal or other navigation, and any lateral railroad shall be constructed to connect with said railroad, for the purpose of conveying any mineral or other productions to the said navigation, and the owners of the said landing shall refuse to permit the trade of the said lateral railroads to make use of the said landing, upon payment of a suitable compensation, it shall be the duty of the Court of Common Pleas of the proper county, upon application of the party aggrieved, to direct the sheriff to summon a jury, * * * who shall examine the premises. And if they shall find that the landings are of sufficient capacity to accommodate the trade of the lateral railroad, in addition to the trade of the main railroad, they shall mark off a portion of the land to be allotted thereto, and fix upon a compensation suitable therefor, either in fee simple or as an annual rent, or a price per ton for the use of the same, and shall make return thereof to the court, who shall thereupon, if the report be approved by them, direct the said landing to be opened to the use of the public, upon the payment of the price assessed by the said jury; an appeal to the superior (court) being allowed, as in other cases.” The Act of January 6th 1848, sect. 3, Pamph. L. 1, 2 Bright. Purd. 1240, pi. 140, provides that “ The rights and privileges as to the acquisition of landings and wharves, conferred by the tenth section of the act entitled ‘ An Act, &c., * * * shall be extended to all persons proceeding to procure the right to make a lateral railroad under the authority of the act to which this is a supplement, so that they shall be enabled to procure landings or wharves, for a compensation of the owner or owners of land, whether said owner or owners of land have any interest in any railroad or not; and the powers and duties conferred upon the jury authorized by the said tenth section, are hereby .conferred upon the viewers who may be appointed under the authority of the said act to whigh this is a supplement: Provided, That no landing, wharf, privilege or franchise shall be taken from the owner thereof, if, in the opinion of the viewers aforesaid, such landing, wharf, privilege or franchise is necessary to the use and enjoyment of the.owner of any mill, quarry, limekiln, coal-mine or other real estate adjoining any navigable stream or slackwater navigation.” . ' The Act of February 17th, 1871, sect. 1, Pamph. L. 56,2 Bright. Purd. 1241, pi. 147, provides that “ In all proceedings now pending, or which may hereafter be instituted, to procure the right to construct lateral railroads, or for the acquisition of wharves or landings, or for either of said purposes, the appeal to court from the report of the viewers shall extend not only to the assessment of damages, but to the question of the necessity of the proposed lateral railroad, wharf or landing, and shall also extend to the question whether such landing or wharf is necessary to the owner thereof, for his own uses or purposes ; and if the jury shall so find,- the same shall not be taken from him.” The petition set out that the applicant owned about 230 acres of land in Baldwin township, Allegheny county, “underlaid by a stratum of good black merchantable coal;” the land and coal were not more than six miles from the Monongahela Slackwater Navigation ; that a lateral railroad was necessary for public and private purposes to connect the coal and the navigation, and that there was necessity also for a wharf or landing at the river terminus of such road; that he desired to make a lateral railroad for the purpose of such connection through the intervening land, partly underground and partly on the surface, and have allotted to him at its terminus at the Monongahela river a wharf or landing sufficient to accommodate the trade of the .road; that he had “ surveyed and marked upon the ground, and adopted a route upon which he desires to construct said railroad; and he had also surveyed and marked off a piece of ground for a landing or wharf, which he desires to procure as aforesaid;” that he had given due notice to James H. Hays and a large number .of other persons (naming them) of his intention to file the petition; and that Hays was the owner in fee simple of the land marked off for the landing. The petition then set out the courses and distances of the proposed road, and the names of landholders through whose lands it would pass. It described also the ground surveyed for the landing, viz.: beginning on the Monongahela river, thence westwardly 80 feet, thence southwardly about 1200 feet, eastwardly 80 feet, northwardly 400 feet to the terminus of the railroad, and along the river and over Hays’s land, northwardly 800 feet to the beginning. The prayer was for viewers to view the route for the railroad, and also the premises described for the wharf and landing, and make report of their proceedings, &c. Viewers were accordingly appointed. The viewers reported that the “ railway is necessary and useful to the said Thomas W. Briggs for public and private purposes,” and assessed damages for the several landholders, amongst others to James H. Hays for the construction, &c., of the road through his land at $5182.68. The viewers reported that they had “marked off a wharf of sufficient capacity to accommodate the trade of said railroad,” viz.: beginning at the river, thence down the same northwardly 600 feet, thence westwardly 80 feet, thence southwardly 600 feet, thence eastwardly 80'feet to the beginning, the same having a front of 600 feet on said Monongahela river, and extending back, preserving the same width from same river 80 feet, being the upper half of lot of land marked on the map, &c., of 1200 feet by 80 feet.” They assessed the damages to be paid to Hays for this land at $30,750. They further reported that no part of this land was necessary for- the use of Hays, &c. Hays appealed from the report of the viewers. Briggs filed no exceptions, nor did he appeal from the report of the viewers. Upon this appeal othe court directed an issue, in which Hays should-be plaintiff and Briggs defendant. In the issue the plaintiff made the following averments:— 1. That his damage by the railroad would be $20,000. 2. And by taking the wharf $150,000. 3. That plaintiff and not the defendant had the exclusive right to the location for a railroad described in said petition, because he, the said plaintiff, says, that being the owner of lands containing coal, lime-stone, &c., situate within three miles of the Monongahela river, he surveyed, defined on the ground and adopted finally, the said location for the route of a railroad which he intended, and still intends, to construct from his said coal-lands to the said river, for the purpose of transporting over the same his said coal; and that said location was made by him in manner aforesaid, and for the purpose aforesaid, before said defendant had surveyed, marked and adopted finally said location as the .route of the proposed road, wherefore said plaintiff says that he, the said defendant, ought not to have or maintain the said proceeding for a lateral railroad as aforesaid. 4. That said land of plaintiff lying between the Pittsburg, Virginia and Charleston Railroad and the river aforesaid, is not the subject of appropriation by a stranger to the purpose of a lateral railroad under the several Acts of Assembly, because he says said acts do not authorize the construction of such a railroad across any one of the series of public highways mentioned therein, in order to reach a more distant terminus, wherefore said plaintiff says said defendant is not entitled to construct said proposed railroad over said area of ground, or to have or maintain his said proceeding to that end. 5. That said viewers marked off and allowed to said defendant for a wharf or landing, a larger area than is necessary for that purpose, and more extensive than the Act of Assembly authorized. 6. That the said wharf or landing as aforesaid is necessary to the plaintiff for his own uses or purposes. 7. That the said wharf or landing as aforesaid is not necessary and useful to the defendant for public or private purposes. 8. That the lateral railroad mentioned and set forth in said petition is not necessary and useful for-public or private purposes. 9. That the petitioner, Thos. W.- Briggs, is not the owner of the coal and coal-mines mentioned and set forth as belonging to him in his aforesaid petition. The defendant denied that the land mentioned in the first paragraph of the issue was of the value of $20,000. He denied all the -averments in the paragraphs from 2 to 8 inclusive. He averred that he was the owner of the property set forth in the 9th paragraph. ■ The issue was tried March 12th 1873, before Kirkpatrick, J. On the trial Briggs, the defendant, by leave of the court, and under objection and exception, amended his petition as to the extent of the landing on the Monongahela river as follow's :— “ He disclaims any desire to take or appropriate, in this case, the following described portion of the landing or wharf mentioned or set out in his said petition, namely, beginning on the said river at the western or lower end of said, landing, as in his said petition named and marked on his plan attached thereto; thence running, &c., * * * and thence down said river 367 feet to the place of beginning. But as to the residue of said wharf or landing (excluding the portion last described, viz.: 367 feet in length and 80 feet in width), he claims in this case to take and appropriate the same for the uses and purposes of his said proposed lateral railroad.” The testimony in the cáse was very, voluminous, the great proportion of it bearing on the necessity for the road and landing— and the necessity of Hays for the landing “for his own uses and purposes.” On the question as to the amount of damages, Briggs, the defendant, offered to prove by A. D. Smith, “ that in 1859 he sold to James H. Hays a portion of river-landing on the south side of the Monongahela, on Pool No. 1, close to the landing or wharf proposed to be acquired by said Briggs, the price at which it was sold, and that since said sale the said landing, so sold to Hays has increased in value from that time until the time of filing the petition in this case, the rate of increase in value, from year to year, of said landing, what the cash value of the proposed landing was at the time of the filing of said petition, to be followed by evidence as to the increase generally of landings on Pool No. 1, for some years prior to the filing of said petition, to show the value of the proposed landing at the time said .Briggs sought to acquire it by the filing of his petition.” The evidence was objected to by the plaintiff, admitted by the court and a bill of exceptions was sealed. The witness testified as to the matters inquired of in the question. The defendant called Alexander Love, and, after preliminary inquiries, proposed to ask him: “ whether he has a landing in Pool No. 2, on the Monongahela river, one-half mile below Elizabeth, when he obtained the same, and the price paid for it; and, further, what the landing proposed to be taken by Thomas W. Briggs is fairly worth in the market, as compared with that of the witness.” The plaintiff objected to the offer, it was admitted by the court and a bill of exceptions sealed. The witness testified that he had a right of way granted for a lateral railroad, and stated also the amount of damages he had to pay under an assessment by viewers. The landing ;was about fifteen miles from the landing claimed by Briggs. The defendant called Joseph Walton, who owned the uppermost coal works on Pool No. 2, about seventeen miles above the landing in controversy, and proposed to ask him, “ what he paid for the 1800 feet of landing alluded to in his evidence, at the head of Pool No. 2, and relatively what the fair market value of the river-landing proposed to be taken by said Briggs is worth as compared with it and other river landings near said Briggs’s proposed landing.” The plaintiff objected to the offer, it was admitted by the court and a bill of exceptions sealed. The witness testified as to the matters inquired of in the offer. The plaintiff called P. C. Devlin, who, having testified much at large as to the questions raised by the issues, was asked by plaintiff “ what the 300 acres of coal he has just spoken of belonging to James H. Hays, which should be taken out by his railroad down Beck’s run, are worth, in connection with the landing which the defendant proposes to appropriate, and what they would be worth if the landing was taken from Hays.” The offer was objected to by the defendant, rejected by the court and a bill of exceptions sealed. Plaintiff offered “the report of tbe .viewers, so far as tbe same relates to the area of ground allotted to said Briggs as a wharf or landing, at the terminus of his proposed road in connection therewith, for the purpose of showing how much ground was actually allotted by the viewers for the purpose aforesaid.” The defendant objected to the offer, it was rejected by the court and a bill of exceptions sealed. The following are points of the plaintiff with their answers:— 2. Inasmuch as the uncontradicted evidence in the cause shows that the proposed lateral railroad is intersected between the terminal points thereof, where it traverses the land of said Hays, a few hundred yards from the Monongahela river, by the Pittsburg, Virginia and Charleston Railway; that said railway was located finally over said land in the fall of 1869, the lettings made, and the work of construction begun in June 1871, and is now and has been for six months past in active running operation from its terminus on the Pan Handle road eastwardly along the valley of the Monongahela for the distance of ten miles, the said Briggs has no authority under the lateral railroad law, to construct or operate said proposed road over the land of said Hays intermediate said public railway and said river, or to appropriate any portion thereof for a wharf or landing. Answer: “ This point is declined. The mere fact of the intersection of the proposed lateral railroad by the Pittsburg, Virginia and Charleston Railway, as suggested by the point, would not of itself take away the authority of the petitioner to construct his lateral railroad over the lands of J. H. Hays, between the said Pittsburg, Virginia and Charleston Railway and the Monongahela river, nor would it of itself prevent his appropriation of a portion of the same for a wharf or landing providing he has the authority otherwise so to do.” 3. The proposed lateral road being intersected or cut in manner aforesaid, between its terminal points, the continuity of it is thereby destroyed, and the said petitioner has failed in his case, both in resp.ect to road and landing. 4. The viewers alone, and not the court and jury, have the' power to mark off a wharf or landing to be allotted to a petitioner for a lateral railroad; and the report of the viewers marking off a wharf or landing in this case, not having been put in evidence, the subject of a wharf or landing is not before the jury, and they havé no power to render a verdict in relation to it. These points were declined. 5. The Acts of Assembly relating to the acquisition of wharves or landings, do not authorize the taking of private prbperty for harbors, either in connection with, or independently of a lateral railroad; and if the said Acts of Assembly do authorize such appropriation of private property, they- are, both in the view of the Constitution of the United States, and of the state of Pennsylvania, void and of none effect. Answer: “ Affirmed with the qualification to the 6th point.” 6. All the ground the Acts of Assembly authorized to be taken for a wharf or landing is just so much as shall be reasonably necessary for loading or unloading such craft as usually navigate the water on which the lateral railroad terminates, and no more: they do not authorize the taking of ground for harbors for either empty or loaded craft. Answer : “ We cannot say that we are prepared to affirm, and so must decline this point as it is presented. We consider it too broad. We are however of opinion, and so instruct you, that the amount of ground which may be taken for a wharf or landing, under the provisions of the Act of Assembly, is such and so much as will be of sufficient capacity to accommodate the trade of the lateral railroad, so much and no more than is reasonably necessary to a proper, fair and legitimate use, occupation and exercise of the privileges and benefits of the road so created. Less than this we think would defeat the clearest purposes and intention of the statute, and more especially that portion of its provisions which the wharf and landing feature of the act was intended to subserve; whilst a greater allowance would be a clear infringement of the right of private property and in manifest derogation of a fair add proper interpretation of the letter and spirit of the law, and should receive no encouragement by the verdict of the jury. These limitations we beg the jury to apply to our affirmation of the last or fifth point.” 7. The burden of showing the necessity for said proposed road is on the petitioner, and as there is no evidence in the cause showing any necessity, general or special, for extending the same over and beyond the Pittsburg, Virginia and Charleston Railway to said river, the case has failed in respect to that portion of said road, and also in respect to the wharf or landing, and the court will so instruct the jury. Answer: “We have already in our general charge affirmed the proposition of law claimed in this point, and do so now that the' burden of showing the necessity for the proposed road is on the petitioner. This proposition and this portion of the point cannot be gainsaid. But we decline, as further requested, to instruct you that there is no evidence in the cause showing any necessity general or special for extending the proposed lateral railroad over and beyond the Pittsburg, Virginia and Charleston Railway to the Monongahela river. This we leave as a question of fact exclusively to the jury to be by them determined from all the evidence in the cause, again repeating that the burden of showing this fact, as also the fact of the necessity of the road, rests with and is by the law wholly put upon the petitioner.” 17. The páper filed by Thomas W. Briggs, purporting to be a disclaimer of his right to take the lower portion of said proposed landing, is in legal effect a discontinuance of the entire proceedings'as respects both road and landing, and if not of both, of the landing at least. Answer: “ This point is declined.” The court in the charge, amongst other things, said:— * .* * “ [It will be observed the words of the statute are ‘ uses and purposesthus, as it would seem to me, suggesting a something in the present and also in the future. A use of a thing-signifies and means the acting, handling or employing in any manner, and for any purpose, but especially for a profitable purpose, thus implying the immediate or present occupation or enjoyment of anything. A purpose means and implies intention, design; that which a person sets before himself as an object to be reached or accomplished, the end or aim to 'tfhich the view is directed in any plan, measure or exertion. Thus implying something contemplated or to be done in the future. Now has the owner of this wharf or landing satisfied you that it is so necessary for him, for his own fair, proper and legitimate uses and purposes ? that is, not only for his present or immediate uses, but also for his future designs, plans or purposes ? We are of the opinion, and so instruct you, that he is entitled under the statute to the benefit of both of these terms in their largest and most comprehensive sense. We think the statute so intended.] If he has, as we have already told you, this ends all other or future„controversy about the wharf or landing, and it has no other or further part nor lot in your deliberations in regard to it. We express no opinion, but leave it wholly to the jury, by whom, and by whom only, it is to be determined. But it may be, as claimed by the petitioner Briggs, that the owner has wholly failed in so satisfying you. If he has, then other and important questions present themselves. [The first question naturally to be considered by you,- then, will be (assuming that you have found that the land is not necessary to the owner, and that the petitioner Briggs is entitled-to one), how much of a landing shall be allotted to him ? ShalHt be the whole, as claimed —that is twelve hundred feet, less the three hundred and sixty-seven feet disclaimed by him in front of Williamsburg, which would leave eight hundred and thirty-three feet — or shall it be any other distance less than this, and if so, how much less. This also is a question wholly for the jury, in the light of all the evidence bearing upon it. They are not limited, and may allot such and so much as they may deem just and right to a proper and reasonable use, occupation and enjoyment of the lateral railroad, in and of which, and to the fair, reasonable and proper enjoyment and use of which the wharf or landing was and is intended. This we have said in answer to one of defendant’s points, and so say here and now as our instructions to you in this regard, should be the rule and measure by which you should allot and set apart the wharf or landing to the petitioner, in case you come to the conclusion from all the evidence that he is fairly and justly entitled to one.]” * * * The jury found a special verdict, answering the several issues categorically, viz.: 1 and 2. They found that Hays, the plaintiff, owned the land proposed to be taken for the railroad and for the wharf. 3. They found for Briggs. 4. So far as there were facts to be found in this issue, they found for Briggs. ******* 6 and 7. They found that the wharf or landing described in the petition of Thos. W. Briggs in this case, less the amount thereof which said Briggs on the trial of this case by writing filed of record, disclaimed any right to take and appropriate, viz.: 367 feet in length by 80 feet in width, from the western end of said landing, is not necessary to said Jas. H. Hays for his own uses or purposes; and that said wharf or landing in said petition mentioned, less the amount thereof, viz.: 367 feet in length by 80 feet in width, disclaimed as aforesaid, is necessary and useful to Thos. W. Briggs for public and private purposes. 8 and 9. They found that the lateral railroad mentioned and set forth in said petition, is necessary for public and private purposes; and that the said Thos. W. Briggs is the owner of the coal and coal-mines mentioned and set forth as belonging to him in his aforesaid petition. “And we further find and mark off from the wharf and landing proposed in the petition, a wharf of sufficient capacity to accommodate the trade of the said railroad, which we find to be as follows, viz.: Beginning at the low-water line of the Monongahela river where the line of the lateral railroad strikes the river; thence up the said river, &c. (by several courses and distances), to place of beginning, being a strip of ground extending back 80 feet from low-water mark, and extending from said lateral railroad up the river 400 feet, and from the said lateral railroad down the river 435.79 feet to the line of the village of Williamsburg, making 835.79 feet front on said river .by 80 feet back from the same: The said wharf or landing nowmarked off for said Thomas IT. Briggs being the residue of the wharf or landing mentioned and described in said petition, after striking off the portion thereof which said Thomas W. Briggs, by writing filed of record in this case, disclaims any right to take. And we do further find that the said landing, so found and marked off, is not necessary to the owner thereof, James H. Hays, for his own uses and purposes, and we find and fix upon the sum of $28,668.90 to be a compensation just and suitable to be paid to James H. Hays for the use of said piece of ground owned by him, and included in the last aforesaid description.” Judgment having been entered on the verdict, the plaintiff Hays removed the record to the Supreme Court by writ of error. He assigned the following errors : — ■ 2. Admitting the report of the viewers in evidence. 3. Refusing the plaintiff’s 4th point. 4 and 8. Charging as in the part of the charge secondly enclosed in brackets. ' 6 and 7. The answers to the plaintiff’s 5th and 6th points. 9 and 10. The answer to the plaintiff’s 2d and 3d points. •11. The answer to the plaintiff’s 7th point. 12. Charging as in the part of the charge first enclosed in brackets. 14, 15, 16. Admitting the testimony of A. D. Smith, A. Love and J. Walton on the subject of damages. 17. Rejecting the testimony of P. C. Devlin on the same.subject. 19. Allowing the defendant, Briggs, to amend his petition. 20. 'Denying the plaintiff’s 17th point.
74 Pa. 387Karns v. McKinney (1874)
Error to the District Court of Allegheny county: No. 57, to October and November Term 1873. This was an action of replevin, brought to July Term 1868 of the court below, by J. B. McKinney against John Karns and J. F. Noel. . The declaration was that the defendants took of the goods of the,plaintiff, one coal barge, a lot of barge timber and divers lots of plank, a lot of oak streamers, two lots of iron, three kegs of spikes,- a lot of bolts, four bales of oakum — of the value of $1500. The defendants pleaded “ Rent in arrear, warrant of distraint, ”&c. The replication was that the plaintiff did not hold the premises, when the distress was made, as tenant of the defendants or either of them; that no part of the rent for which the distress was made was in arrear from the plaintiff to the defendants or either of them, and that the goods were not liable for distress for rent, if any rent were due. The case was tried December 12th 1871, before Kirkpatrick, J. On the 21st of May 1867, Earns, one of the defendants, leased to C. W. Porterfield a lot of land in the borough of Tarentum, containing twelve acres, on which was a steam saw-mill, with fixtures ; also a dwelling-house, blacksmith-shop, boat-yard, stable, &c., for 'five years, at an annual rent of $500, payable quarterly, except for the first year, when it was to be paid at the end of the year. The goods were taken on the leased premises. Porterfield took possession of the premises. The warrant was issued by John Earns, and the articles distrained were on the premises at the time of the distress, May 2d 1868. Earns gave evidence that the mill was on a lot of two acres, bought by him after he owned the other part of the property. The lumber-yard was on the other side o-f a creek from the mill. J. R. Wylie testified for McKinney that he had worked “ at this mill of Porterfield’s” as head sawyer; he, George Agnew and John Porter harl purchased some rafts and barge stuff, which they sawed in the mill; they were running the mill for Porterfield; this lumber was sold to McKinney about three weeks before the distress; it was lying across the creek by itself. “We worked the mill, and when we had a chance to saw a log of our own, we did so, and delivered it over the creek just as any other customer; there was no timber on the other side the creek but our own; it was over the creek when sold to McKinney; it remained where it was.” McKinney testified as to purchasing the timber from Wylie; after the purchase he sent his men, who went on and built the barges; one was built at the time of the distress; he sent iron, oakum, spikes, &c., there for the erection of the barges; the property was on the leased premises, and at the time he purchased, Wylie, Porter and Agnew told him they were running the mill for Porterfield, and that the lumber was their own; they gave him liberty to build the barges there in the barge-yard, alongside of the creek. ' McKinney offered in evidence the notice of distress delivered to him by J. E. Noell, the constable, for the purpose of showing that he, Noell, distrained for a greater amount of rent than was due, and for more than he, Noell, the bailiff of Earns, was authorized to distrain for; and also for the purpose of showing that other goods and chattels were distrained upon said premises for the same rent, not replevied and sufficient to satisfy the said rent, or a large portion thereof; and also for the purpose of showing that said bailiff was proceeding to collect, by sale of plaintiff’s goods (replevied in this case), the sum of $725, being a much larger sum than was due to. or claimed by Karns. The evidence was objected to by Karns, admitted by the court and a bill of exceptions sealed. Karns submitted a 'number of points; the third, which was refused, is as follows :— “ The court is requested to charge the jury that even if they believe all plaintiff’s evidence, and find therefrom that plaintiff did, at time of distraint, own the' property replevied, yet, under all the evidence, said property is liable to distress of defendant, Karns.” The verdict was for McKinney, plaintiff below, for $78. Karns took out a writ of errer, and, amongst others, assigned for error— 3. The refusal of his third point. 8. The admission of the evidence objected to.
74 Pa. 391Foster's Appeal (1874)
1. A firm owned real estate purchased with firm funds and held as partnership property, one of the partners died; by arrangement with the survivor, and by order of the Orphans’ Court, the real estate was sold to him for 825,500, at private sale by the administratrix ; he to pay all the firm debts, the indebtedness of the decedent" to the firm and his individual debts for which the firm was liable ; 85500 of the purchase-money to be appropriated to his other debts. Held, that the remainder was to be distributed as real estate. 2. The general rule is that personal estate is to be first applied to pay a decedent’s debts, even those with which his real estate is charged. 3. Where land is partnership stock, it never becomes personalty, even during the continuance of the firm so as to give one partner power to dispose of the firm interest in it. 4. Land is not subject to the rule that each partner is agent of the firm. 5. Conversion is a doctrine of equity only and is admitted to produce equitable results. 6. Conversion is at an end when the purpose of the conversion is attained; the land becomes realty, although the proceeds are distributed as personalty. 7. Firm real estate is personalty for the purpose of paying firm debts and the advances of the partners before any goes to the partners or their separate creditors. 8. The time of reconversion is the moment the partnership is wound up and it is determined to be no longer partnership stock nor required for its purposes. 9. Meily v. Wood, 21 P. F. Smith 488, remarked on.
74 Pa. 400Pittsburg v. Coursin (1873)
1. An act required that the “ Regulator” should give notice of assessments on lot owners for grading, &e., “ by publication for ten days in two daily papers of (Pittsburg) — “ that the parties may have an opportunity of having mistakes or errors corrected.” Held, to be directory onlyand that the owner might show “ errors or mistakes” in the trial of the suit on a claim for grading, &c. 2. When words are affirmative and relate to the manner in which power or jurisdiction in a public officer or body is to he exercised and not the limits of the power, they are in general directory. 8. Kensington v. Keith, 2 Barr 218 ; Pittsburg v. Walter, 19 P. F. Smith 365, distinguished.
74 Pa. 402Peters v. Ulmer (1873)
1. In an action of slander the defendant may plead both “ not guilty” and “justification.” 2. Pleas that are inconsistent may be pleaded together. 3. The discretion vested in the court by stat. of Anne c. 16, sect. 4, to refuse leave to put in more than one plea, is a legal discretion to be exercised only when good reason exists. 4. Smith v. Kessler, 8 Wright 142, recognised.
74 Pa. 405McClurkan v. Byers (1874)
Error to the Court of Common Pleas of Allegheny county: No. 34, 35, 36, 37, to October and November Term 1873. Four actions of- assumpsit were brought September 20th 1871, against Alexander M. Byers, Alexander Nimmick, William K. Nimmick and Joseph Fleming, trading as Byers & Co., to December Term 1871 of the court below. ' In Nos. 168 and 171 Samuel McClurkan, in trust for the Fort Pitt Banking Company, was plaintiff, and in Nos. 169 and 170 Samuel McClurkan was nlaintiff. No. 168 was on the following note :— “$50,000. Pittsburg, Pa., December 3d 1869. Sixteen months after date we promise to pay to the order of Dr. D. Hostetter fifty thousand dollars, without defalcation, for value received. Byers & Co. Endorsers:— D. Hostetter, Lockhart, Frew & Co., D. Hostetter.” No. 169 was on the following note:— “$50,000. Pittsburg, December 13th 1869. Sixteen months after date we promise to pay to the order of Dr. D. Hostetter fifty thousand dollars, without defalcation, value received. Lockhart, Frew & Co. Endorsed:— D. Hostetter, Byers & Co., Samuel McClurkan.” No. 170 was on the following note :— •' “$50,000. Pittsburg, December 11th 1869. Sixteen months after date we promise to pay to the order of Messrs. Lockhart, Frew & Co., fifty thousand dollars, without defalcation, for value received. Byers & Co. Endorsed:— Lockhart, Frew & Co., D. Hostetter, Samuel MoClurkan.” No. 171 was on the following note :— “ $50,000. Pittsburg, December 16th 1869. Sixteen months after date we promise to pay to the order of Dr. D. Hostetter fifty thousand dollars, without defalcation, for value received. Lockhart, Frew & Co. Endorsed:— D. Hostetter, Byers & Co., D. Hostetter.” The four cases were tried together January 18th 1872, before Sterrett, P. J. The plaintiff gave the notes and protests in evidence, and rested. For the defendants, A. Nimmick, one of them, testified that in the fall of 1869 there was a “ firm association known as the Pitts-burg Petroleum Oil Company, composed of Byers & Co., Kirkpatrick & Lyons, Lockhart & Frew, Samuel Lewis, D. Hostetter and A. Hertz & Co. Their business was to buy and sell'oil. In the fall of 1869 the association proposed to borrow money in Philadelphia to be used in their business. For this purpose six notes for $50,000 each were drawn, in which the day of month and time they had to run were left blank; two were drawn by Byers & Co., two by Lockhart & Frew, and two by D. Hostetter .& Co. Four of these notes were those in suit. Witness signed for Byers & Co., and Frew for Lockhart & Frew. They hoped to borrow on four months time, but lest they should have to make the time shorter, the blanks were left. About the 18th of December 1869 witness and Hostetter went together to Philadelphia, and, finding that they could not negotiate the notes on account of their large amount, they made an arrangement with Charles Lennig, by which they could obtain the money on notes of $10,000 each; witness drew in the name of Byers & Co. ten $10,000 notes to the order of Lockhart, Frew & Co., and delivered them to Hostetter to have negotiated; Hostetter agreed not to use their two $50,000 notes; witness gave as collateral to Lennig forty-three bonds of the Allegheny Valley Railroad Company, which had been borrowed by the Pittsburg Petroleum Company; they received on that day through Lennig from $40,000 to $50,000, and also from Warden, Frew & Co. $50,000, all which witness deposited in Iron City Bank at the .disposal of the Pittsburg Petroleum Company, of ■which Mr. Frew was the disbursing agent; witness next heard of the notes of Byers & Co. a few days before they were due, about sixteen months afterwards; witness never authorized Hostetter to fill the blanks or negotiate the notes; the Pittsburg Petroleum Company were to take up the notes which were negotiated. Joseph Fleming, a defendant, testified, corroborating Nimick as to the making the blanks, &c., of the $50,000 notes and their purpose; he also testified that he returned with Hostetter on Christmas 1869, went to Lockhart & Frew’s office, which was closed, and they could not get in; they went to the Iron City Bank and left some money there, and afterwards Frew and witness were at Lockhart & Frew’s office when Hostetter came in; Frew asked him if he had the $50,000 notes with him ; Hostetter said he had not; they were in his satchel, and he would return them the first time he came up. Witness never authorized Hostetter to fill up and negotiate the notes; the first he heard of them was about the time they were falling due. William Frew testified that he was the purchasing agent of the company; money was paid to him as it was needed; that he got $98,500 from Hostetter on the 21st of December 1869, and gave him a receipt, which was produced. At the interview with Hostetter at the office of Lockhart & Frew on Christmas, Hostetter said he could not use the $50,000 notes in Philadelphia; he had to send for collaterals; that he had the notes at his office and would return them shortly. W. H. Nimick, a defendant, testified that in 1870 there was considerable amount of accommodation paper for the use of the company made and endorsed by the members of the association. In November 1870, it was arranged that each of the partners should take up $100,000 of this outstanding paper, a portion of which Hostetter was to pay at the Mechanics’ Bank in Pittsburg. There had been a quarrel amongst the partners in May or June 1870, which still continued. Byers & Co. did not pay either note of $50,000, which was allotted to them to pay; Hostetter sued them on one and recovered. There was evidence that the paper allotted to Hostetter to take up, was in Philadelphia, and in the Mechanics’ Bank in Pittsburg, four pieces maturing there in December 1870; the day before these were due, Hostetter said he would not pay them. The defendants called the plaintiff. He testified that he was president of the Fort Pitt Banking Company, which was not incorporated ; Hostetter was a member of the company and a director. In 1869 witness knew there was some difficulty in the Petroleum Company about the oil Hostetter was to get; Hostetter about then informed him that there was difficulty about some paper of the company that was out; that there was an arrangement between Lockhart & Frew, Byers & Co. and himself, by which each, was to take up $100,000 of the paper, some of which was in the Mechanics’ Bank, and which he would like to have taken out of the bank, as he did not wish Mr. Holmes, the president of the bank, to have any trouble; witness bought the notes from the Mechanics’ Bank on the last day of grace. The notes in suit were discounted by the Fort Pitt Bank December 29 th 1870; the blanks were filled at the time of discount in the banking-house; the proceeds of the notes were placed to Hostetter’s credit. Hostetter told witness that the defendants had failed to pay the notes, and that he held the four $50,000 notes as collateral security for other notes which he had substituted for them in Philadelphia; “ he went into a short history, telling me what Mr. Nimick stated about taking them on there, and their not being able to use them.” The defendants gave other evidence for the purpose of showing that the plaintiff took the notes from Hostetter with such knowledge of the circumstances connected with them as that he was not a holder without notice. In rebuttal the plaintiff called Charles Lennig, who testified that in December 1869, he was applied to by some of the parties connected with the Petroleum Company to raise money for them, and he agreed to raise $100,000 ; they gave him. ten notes of Byers & Co. of $10,000 each, payable to the order of Lockhart, Frew & Co., and endorsed by Hostetter, and some $140,000 of Allegheny Yalley Railroad bonds, as collateral. About ten days afterwards they made a second application for more money, and there were left with him, ten other notes drawn to the order of Lockhart &Frew; he raised $81,500 on these notes about the middle of January; the ten $10,000 notes on which he advanced the money were in his possession until they were paid; he issued his own notes, and these notes and the bonds were left with him as collateral; there had been received by him twenty $10,000 notes of Byers & Co., payable to the order of Lockhart & Frew, and the aggregate amount of Byers & Co.’s paper held by him was $181,500. D. Hostetter testified that the $50,000 notes were made to raise money for the Petroleum Company (he produced the notes); the six notes were executed in Pittsburg, before witness and A. Nimick left Pittsburg on the 19th of December 1869, for Philadelphia; Nimick got the money through a negotiation with Lennig of ten $10,000 notes, and deposited it in the Iron City Bank; witness finding that he could not advantageously negotiate notes of $50,000, issued his own notes in sums of $10,000, $20,000 and $80,000, and deposited the proceeds in the Iron City Bank to the credit of Frew, the disbursing agent of the Petroleum Company, and took his receipts; he had negotiated in the whole up to that time $404,000 for the Company. Mr. Fleming, one of defendants, and witness came from Philadelphia together on Christmas day; went to Lockhart & Frew’s office, found it closed, went to Fleming’s office, left their valises there, and deposited the money they had in the Iron City Bank. Witness said he did not on that day promise Frew or Fleming to return the $50,000 notes; he promised no one to return them; no one ever asked him to return them. “ They knew what I held them for; they all knew I had issued my own notes and held these as collateral security. I explained to them that I had issued my own paper for the purpose of raising money; that I issued my own paper instead of these $50,000 notes; * * * the blanks were left, so that they could be filled up when I found a customer to take them, either for 4, 5, 6, 12 or 18 months; I was not limited as to that.” Witness denied that there was any thing said at Lockhart & Frew’s office that day about the $50,000 notes being in his satchel, and that he would return them; he was not in Frew’s office that day. Notes to the amount of $404,000 being shown to the witness, he identified them as notes drawn by him. The witness testified that the first arrangement was “ that we were to pay the debts and divide the oil. When I found I was paying more than my oil amounted to, I insisted on getting the Bell tank. Byers opposed my getting that and said Frew should give it out of the Brilliant Works. * * * I received 38,000 barrels, and to go on with the arrangement I was to have 8000 or 10,000 barrels in the Bell tank. This was refused. I had been paying regularly until they refused me the oil, and that was the occasion of my stopping payment of what I had agreed to pay the Mechanics’ Bank.” The testimony for the plaintiff from Hostetter and others was very- voluminous, detailing the transactions in relation to the notes in suit and their discount by the plaintiff. By offer “ G,” plaintiff proposed to give in evidence the notes amounting to $404,000, identified by him as having being issued by him in Philadelphia in lieu of the notes in suit. This was objected to by defendants, rejected by the court, and a bill of exceptions sealed. By offer “I,” he proposed to give in evidence the receipt of Frew, the disbursing agent of the Petroleum Company, for the proceeds of Hostetter’s notes for $404,000 issued and discounted in Philadelphia. By offer “ J,” he proposed to show by Hostetter that he paid and took up with his own funds, and by his own notes in renewal, all his notes for $404,000, which he had had discounted in Philadelphia, and that he had paid the notes given in renewal of the original paper; be followed by evidence that the Petroleum Company and the defendants ratified all he had done in issuing his ntftes for $404,000, and the Petroleum Company received and used the proceeds of the notes with the consent of the defendants and of Lockhart & Frew. The offers were objected to by the defendants, rejected by the court and a bill of exceptions sealed. By offer “K,” plaintiff proposed to show by Hostetter that the proceeds of the discount of the four $50,000 notes in suit by the Fort Pitt Banking Company, were applied to pay the debts and take up the paper issued for the accommodation of the Petroleum Company, which that company was bound to take up. The offer was objected to by defendants, rejected by the court and a bill of exceptions sealed. By offer “L,” the plaintiff proposed to show by Hostetter that he discounted the notes at the Fort Pitt Banking Company to meet the notes of the Petroleum Company and notes issued by him for their accommodation, at the instance of the company and the defendants, and that he applied the proceeds to take up these notes. The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed. Offer “ H ” of plaintiff was as follows :— “ In connection with the testimony of the witness on the stand— Dr. David Hostetter — that it was a part of the arrangement between himself and Byers & Co., and Lockhart & Frew for taking up the paper of the Pittsburg Petroleum Oil Company, he (Hostetter) was to be made equal in oil belonging to said company with the other parties to the said arrangement. The plaintiffs now offer to show by the said witness that Byers & Co. took possession of and retained about 76,000 barrels of said oil, worth about $450,000; that Lockhart & Frew took possession of and retained about 74,000 barrels, while said Hostetter received only about 38.000 barrels; that said Hostetter was short in oil not less than 25.000 barrels, which he was entitled to receive and ought to have received from Byers & Co. and Lockhart & Frew under said arrangement; that said Hostetter called upon Byers & Co. and Lockhart & Frew for his full share of said oil, but they refused to let him have the same, and that this call and refusal were before the maturity of the notes at the Mechanics’ Bank.” This offer was objected to by defendants, rejected by the court and a bill of exceptions sealed. There was other evidence admitted and offers rejected; what is given with the answer to the defendants’ fifth point, will sufficiently present the case and the questions decided by the Supreme Court. The 5th point of the defendants which was affirmed was:— The Fort Pitt Banking Company being a private partnership and not a corporation, notice to or knowledge of any one of the stockholders or partners, is notice to or knowledge of the said banking company. Judge Sterrett in his charge said : * * * 9 “ There is another matter suggested by one of the defendants’ points, to which I have not yet adverted. “ It is in proof and not controverted, that in two of the. cases before you the beneficial plaintiff, the ‘ Fort Pitt Banking Company ’ is a private copartnership, unincorporated, composed of Samuel McClurkan, Dr. Hostetter and others. In these cases the company stands in no better position than Dr. Hostetter himself would. If he could not enforce payment of these notes, as against the defendants, he could not transfer them to the copartnership of which he is a member, and then unite with them in maintaining a suit. In other words, if the defendants have a good defence as against Dr. Hostetter, the same defence is available to them as against the firm of which he is a member, the Fort Pitt Banking Company.” * * * The verdict was for the defendants in each case. The plaintiff took a writ of error and assigned for error, amongst others, the ruling of the court on the offering of evidence before stated, the answer to the fifth point of the defendant and the portion of the charge above given.
74 Pa. 414Middleswarth's Adm'r. v. Blackmore (1874)
Error to the Court of Common Pleas of Allegheny county: No. 88, to October and November Term 1873. This was an action of ejectment for a tract of two hundred acres of land, commenced May 4th 1871, by John Hickman, administrator d. b. n. c. t. a. of Moses Middleswarth, deceased, against James Blackmore. The land in controversy belonged to Moses Middleswarth, the decedent, who died seised of it about July 1842, having made a will dated January 14th 1841, and proved July 23d 1842. Letters testamentary were issued to the executors named in the .will; they having died, administration d.-b. n. c. t. a. was granted . to the plaintiff. The testator left to survive him hi.s wife, Elizabeth Middleswarth ; seven children, viz., Jonathan, Mary, Sabia, Euphemia, Anne, Betsy and Hannah. All the daughters were married, and had children at the date of the will. He also left a grandchild, the daughter of a son who had died before the date of the will, this daughter being then born. Jonathan was about forty-two years old at the date of the will, and was unmarried. The land in dispute was devised to Jonathan Middleswarth in thé terms mentioned in the will, which will be given hereafter. On the assumption that his devise was an estate tail he executed an appropriate deed to bar it, and the land having been reconveyed to him on the 7th of July 1853, he conveyed it by deed in fee simple to Thomas Blackmore, under whom the defendant claimed. Jonathan died June 8th 1869, without issue, never having been married.' . By the words of the will the executors were directed to sell the land on Jonathan’s death without issue; the plaintiff alleging that Jonathan’s estate was defeated by his death without issue, brought this ejectment. The will is as follows: — • “ After the payment of all just debts and charges, I devise and bequeath unto my beloved- wife Elizabeth, during the term of her widowhood, my house and farm whereon I now reside, &c., * * * and also $500 to be paid to her in the manner hereinafter mentioned. “ Second, I devise and bequeath unto my son, Jonathan Middleswart, the Ramsey place or farm, &c. * * * out of which I direct him to pay to my beloved wife Elizabeth the above specified $500, to be paid in ten annual instalments of $50 each, and if not all paid in her lifetime, she is to have the disposal of it to who or whom she shall think best. After the marriage or death of my wife Elizabeth I direct that the real estate devised to her during her widowhood, shall be disposed of as soon as circumstances will admit, and I further direct that the proceeds arising from the sale of this portion of my real estate shall be equally divided amongst the legitimate children of my son, Jessey Middleswart (now deceased), the legitimate children that is or may be born by my daughter Zabia Henry, Mary Chess, Euphemia Coulter, Anne Fryer, Hannah Coulter and Elisabeth Middleswart to share and share alike. “Third, I devise and bequeath unto each of my daughters, Zabia Henry, Mary Chess, Euphemia Coulter, Anne Fryer, Hanna Coulter, Elisabeth Middleswart, the sum of $2500, to be paid to them in one year after my decease. I devise and bequeath unto my daughter Elisabeth, in addition to the above bequest, the interest of $1000, to be paid to her from the first day of April 1834, until one year after my decease, &c. * * * “I do hereby appoint and constitute Samuel Stewart, &c., executors of this my last will and testament, and I hereby authorize and empower my executors to sell, dispose and convert into cash all the balance of my estate, real, personal or mixed, whatsoever or wheresoever situate, and whether in possession or otherwise, and out of the proceeds of the same to pay the pecuniary legacies hereinbefore specified, and if there should be any surplus, I direct it to be divided equally among my said daughters, or their legal representatives; if there should not be funds enough to pay the said pecuniary legacies, my son Jonathan is directed to pay the same at the rate of $25 per annum to each of my daughters until the deficiency is made up. * * * And-1 further direct that in case my son Jonathan should die without leaving any legitimate issue, then it is my will that the real estate herein bequeathed to him shall be sold, and after the payment of all the specified sums hereinbefore mentioned (which is enjoined on him to pay), then it is my desire and will, that of the balance remaining, $1000 shall be paid by my executors (or the surviving ones of them), to the Foreign Missionary Society of the Presbyterian Church, and $500 to the General Assembly’s Board of Education, as soon as convenient, and the balance remaining after this, I direct to be equally divided amongst all my legitimate grandchildren, that is now or may hereafter be born, to share and share alike. And now I wish it distinctly to be understood, that any of my grandchildren who shall be guilty of having an illegitimate child, or is guilty of the sin of intemperance, or that do wickedly and irreverently profane God’s holy name, that he, she, or .they do, by such conduct, for ever debar themselves from the benefit of any bequeath herein made by me to them, and the share or shares of such one or ones shall be equally divided amongst the brothers and sisters of such one or ones whose life and conversation is free from reproach.” The case was tried May 16th 1872, before Sterrett, P. J., who upon the foregoing facts directed a verdict for the plaintiff, reserving the following question:— “ Whether, under the will of Moses Middleswarth — in connection with the proceedings had for the purpose of barring the entailment — Jonathan Middleswarth acquired a title in fee simple to the land in controversy?” The jury accordingly found for the plaintiff. The court after-wards entered judgment for the defendants, non obstante veredicto. The plaintiff removed the record to the Supreme Court by writ of error, and assigned for error the entering judgment for the defendant.
74 Pa. 421Pittsburg, Allegheny & Manchester Passenger Railway Co. v. Caldwell (1874)
1. The plaintiff, a child of five years, with another of eleven, got on the front platform of a street railway car ; the driver allowed them to continue there and in attempting against the remonstrance of the driver to get off whilst the car was in motion the plaintiff was hurt. Held,, that it was negligence in the driver to allow children so young to ride on the platform and the company were liable. 2. It was the driver’s duty to compel them to go inside or to stop and put them off. 3. Negligence cannot be imputed to one not of sufficient capacity or discretion to understand the danger and guard against it. 4. There was evidence that the elder child put the plaintiff off; — Held, that her negligence was not to be imputed to plaintiff, the other being a companion and plaintiff not in her charge. 5. The rules of the company for conductors and drivers were given in evidence ; the court- allowed a schedule of rules containing these and others which did not bear on the issue to go out with the jury, against a general objection to the paper. Held not to be error, being within the discretion of the court. 6. As'the rules which had not been given in evidence could do no harm, judgment would not be reversed for a technical error.
74 Pa. 426Duquesne Bank's Appeal (1874)
Appeal from the Court of Common Pleas of Washington county: In Equity. No. 10 of October and November Term 1873; On the 21st of September 1871, William White, assignee by several assignments for the benefit of creditors of Samuel Cowen, John D. Cowen and William H. Cowen, filed a bill against James T. Brady and the Duquesne Savings Bank. The bill set out:— 2 and 3. About September 20th 1870, Samuel, John D., William II. 'and S. C. Cowen negotiated a loan with Brady, and on that day gave him a joint judgment-obligation, conditioned for the payment of $40,000 in eight years, with interest payable annually, the principal to become due in default of payment of interest for sixty days after it was payable. Judgment was entered on the obligation in the Court of Common Pleas of Washington county to December Term 1870. For the further protection of the loan, and to designate the liability of each of the Cowens, they gave to Brady a judgment-obligation and a mortgage on separate tracts of land owned by them respectively: Samuel Cowen’s obligation was for $10,000, John Cowen’s for $12,000, William Cowen’s for $9000 and S. 0. Cowen’s for $9000 — making in the whom $40,000. Samuel received from Brady but $7200, John but $8640, William but $6480 and S. 0. $6480 — making in the whole $28,800. 4 and 5. These securities were transferred, on the 4th of February 1871, to the Duquesne Savings Bank, without the knowledge of the debtors and without any inquiry having been made of them; and at the time of the negotiation of the loan and of the execution of the securities, Brady was President of the Duquesne Savings Bank, David Campbell was treasurer and S. C. Fetter-man was a director. During the negotiations Brady advised with Campbell and Fetterman, and secured the loan for the bank. 6. The assignments for the benefit of creditors were made by the Cowens on the 13th of July 1871. The plaintiff averred that the loan was usurious, and was made by Brady for the use of the bank; and the assigned estates should not be charged with more than had actually been received by the four Cowens. The prayers were:— 1. For discovery by the defendants and Campbell and Fetterman. 2.. That the bank be restrained from proceeding on the mortgages and judgments until such reasonable time as the court might fix, and that the forfeiture he not énforced until that time. 3. That the joint judgment be reduced to $28,800, payable September 20th 1878, and bearing annual interest from September 20th 1870. 4, 5, 6. That the judgments of the three Cowens be reduced respectively to $7200, $8640, $6480, payable September 20th 1878, and bearing interest from September 20th 1870. 7. That the bank be restrained from collecting any part of the judgments until they had reduced- their liens to the amounts above indicated, and that the bank be ordered to make the reduction. 8. Further relief. The bank answered, admitting paragraphs 1 and 2, and -denying knowledge of the allegations of paragraphs 3 and 6. 4. The securities were assigned to the bank October 17th 1870, by endorsement on them, and entered on the records of Washington February 4th 1871. Before the assignment, certificates of the four Cowens were produced, setting forth that they had no defence to the payment when the money should be due. . 5. Denied knowledge of the time of negotiating the loan with Brady; admitted that Brady had been president of' the bank and Campbell the treasurer ever since its organization ; denied that Fetterman had been a director until January 10th 1871, and that Brady, during the negotiation of the loan, had advised with the treasurer or any director of the bank, or that he had obtained the loan for the bank. 7, 8. The bank was incorporated April 21st 1870, and was empowered to invest in bonds, mortgages, &e. All loans and investments.' must be approved by the board of directors or an investing committee, consisting of three directors. 9, 10, 11. The securities of the Cowens were offered for sale to the bank in October 1870, as other securities of like character were constantly offered. On the 10th of October they were submitted to a full board, who agreed to purchase them, if well secured and the terms of sale satisfactory. On the 17th of October they were bought by the bank for $30,690, and were transferred as before stated. They were purchased from James T. Brady & Co., in the usual course of business. They were not negotiated by Brady for the bank, and there was no agreement with him, express or implied, at the time of the negotiation, by which the defendant was to purchase the securities. They were purchased in good faith, as above stated, and the sum of $30,690 paid by the bank for them. The answer was signed and sworn to by Campbell, the treasurer. Brady answered, admitting and denying substantially as in the answer of the bank. He further answered, that at the time the loan was made, he was one of the firm of James T. Brady & Co., bankers in Pittsburg; that about September 1st 1870 he was applied to by the Cowens, through their broker, George B. Hill, for a loan, and agreed to let Hill have it at 9J per cent, per annum, the excess to cover Hill’s commission and other expenses about it; James T. Brady & Co. dealt largely in such securities; Brady informed the Cowens, at the time of making the loan, that he intended to sell the securities; “ on or about the time they had drawn all the money coming to them thereon, they severally voluntarily gave said firm certificates setting forth that they had executed said securities, and that they had no defence to the payment thereof, when the same should become due and payable; which certificates bear date September 28th 1870.” After consummating the loan, he offered the securities to the bank; and the board of directors, after discussing the matter at several meetings, agreed to purchase them, and paid the firm of James T. Brady & Co. $30,690 for them; although president, he had no vote on the subject. He denied that the loan was usurious, and averred that the “ bank was nothing more than the purchaser of the securities while they were in the market.” The profit realized by James T. Brady & Co. out of the loan, after paying $902.18 for commissions to Hill and other expenses, was about $1000 for their time and trouble in handling said securities. Mr. Eetterman answered, denying that he was a director of the bank at the negotiation of the loan or the assignment of the securities; that all his connection with the transaction was as attorney at law to examine the title of the Cowens and prepare the securities, for which he was paid by Brady and the Cowens. A replication was filed, and John L. Gow, Esq., was appointed examiner and master. The certificates of “ no defence,” referred to in the answer, were in evidence before the examiner, and were in this form:— “I, William H. Cowen, the obligor and mortgagor above named, do hereby certify and declare that I have' no set-off or defence of any kind whatever, to the payment of the above bond and mortgage, and that the whole amount thereof is justly due and payable, as above stated. Witness my hand and seal, this 28th day of September, A. D. 1870. “Wm. H. Cowen. [seal.]” The evidence before the examiner from both parties was that the amount of money received by the Cowens from Brady was as set out in the bill. Oh the part of the plaintiff there was evidence that the commissions to Hill, the broker, had been paid by Brady without any agreement between Hill and them ; also, that Campbell, the treasurer of the bank, had been present in Brady’s banking-house during the negotiation for the loan, and made inquiries of J. D. Cowen in regard to the form of the securities, and that the Cowens never had any knowledge that the bank was about to purchase the securities. For the defendants, Brady testified that, he would not pay the money to the Cowens without certificates of “no defence;” that no one but his firm had anything to do with making the loan or advising about it. Campbell had been intimate at the office of the firm for many years, and frequently came in there; neither he as treasurer, nor Brady as president, had any power to negotiate loans for the bank. “I offered these mortgages for sale to the Duquesne Bank. They were open to the best bidders. When they were offered to the Duquesne Bank, the matter was fully and elaborately discussed by the board, and as there was some hesitation on the part of some of the members of the propriety of the bank purchasing the mortgages, I stated to them that I did not care whether they took the mortgages or not. They finally agreed to purchase, at three per cent, per annum, discount off, allowing James T. Brady & Co. for the use of the money while they held the mortgages; the price paid by the bank to us being the sum of $30,690. James T. Brady & Co. made as profits $607.18, the additional interest being paid us, making our total profit about $1000. The bank voted to buy the mortgages. As president of the bank I had no vote in the matter. James T. Brady & Co. paid the attorney’s expenses for examining title, and the commission to Greo. B. Hill. Mr. C. S. Fefterman had nothing whatever to do with the matter, except to examine the title and to see that the papers were executed properly. * * * No money of the Duquesne Savings Bank was used in the negotiation for these mortgages. These mortgages were not taken by James T. Brady & Co. for the use of or in trust for the Duquesne Savings Bank or any other bank. The Duquesne Savings Bank was not concerned or connected in any manner or form in the negotiation and acceptance of the mortgage, nor was any other bank. We, James T. Brady & Co., took the risk ourselves. * * * The style of our firm is James T. Brady & Co., composed of James T. Brady and Calvin Adams. * * * ITe is not in any way concerned in the Duquesne Bank. “ Mr. Adams, my partner, is a resident of this city. He does not take an active part in our business ; puts it all on me, unless I send for him specially. He sometimes comes in. Unless some matter of unusual importance comes up, he leaves everything to me. He does not consult with me in buying bonds and mortgages. Don’t know that I ever said a word to him in regard to this transaction. Interest was allowed the Cowens — $72.09 on the bulk of the account. I find by an examination of the books, that on the day prior to receiving the certificates, there is charged to John D. Cowen $12,987.22; this of date 29th September 1870.” Campbell testified: “ The only conversation I ever had with Mr. Cowen was when I incidentally went into the banking-house of James T. Brady & Co., and was introduced by Mr. Brady to Mr. Cowen, and was asked the question as to the probable value of land in Washington county. I answered the question by stating that in my judgment lands were worth from seventy to eighty dollars per acre. Mr. Cowen then commenced to open a conversation with me regarding a negotiation with James T. Brady & Co. I stopped him by saying that I had no connection with Mr. Brady’s .house, and did not desire to know anything in reference to his business negotiations. I did this because I thought Mr. Cowen was under the impression that I was connected with the banking-house. On the 17th day of October 1871, the mortgages, certificates of no defence and prothonotary’s certificates were all before the bank. The assignment of the bond was made there, that day by Mr. Brady, for his bank, and the memoranda on the mortgages made by Mr. Brady, agreeing to have the mortgages assigned to the bank on the record of Washington county. Previous to the purchasing of these securities by the bank, I had no conversation or understanding with James T. Brady & Co., regarding their probable purchase by the bank; nor do I know of any director or other officer of the bank having any such understanding. * * * On the 10th day of October 1870, at a meeting of the board of directors, the treasurer, as is the custom, informed them that he had considerable funds to invest in proper securities, and as a large portion of the money was payments on the capital stock of the bank, it would not be checked against. He thought it advisable to make an investment in some long loan. Mr. James T. Brady then stated to the board that he had some mortgages which had eight years to run, or nearly. He made a statement of the amounts respectively, and they aggregated f40,000. The matter of making so large an investment in a single transaction was fully discussed by the members of the board. Seven of the nine members were then present, one or two of the members offering objections to these particular securities- because the lands securing the loan were situated in a county other than Allegheny county, Pa. But after a free discussion, their objections were withdrawn, and the board agreed to make the negotiation, provided the titles were good, and the terms satisfactory. These securities were taken precisely in the same form and the same manner that we now, and ever have, taken securities for the bank. * * * The bank had no knowledge of what James T. Brady & Co. made by the negotiation of these securities. Speaking about the bank I mean myself, for I presume no other member of the board would have any knowledge. These were not negotiated differently from all other securities taken by us. I' know distinctly and positively that the securities were not taken by Mr. Brady in trust for the Duquesne Savings Bank, or for the bank. The connection of this bank with that of the firm of James T. Brady & Co. is of the same character as that held with our eastern correspondents, namely, that we keep a deposit account there, and eheclt upon it regularly as we do with other banking institutions with which we have accounts; and James T. Brady, of the firm of James T. Brady & Co., has no more to do with this bank, than the other directors and stockholders have. * * * I don’t think that any officer of the bank made inquiry of the Cowens as to whether they had any set-off or defence to the payment of these securities, because the bank had in their possession the certificates to that effect, signed by the Cowens respectively, and therefore took it for granted that they had no set-off to- the payment of the same. To the best of my recollection and knowledge the bonds, mortgages, certificates of prothonotary, and certificates of no defence, were delivered into the custody of the bank at one and the same time, by Mr. Brady, or by some one for him.” Mr. Fetterman testified: “Mr. Cowen came to Pittsburg to make arrangements about drawing the balance of the money. James T. Brady wrote one check or order on their firm, and I wrote three for Mr. Cowen to take to the country to have his father and brothers and himself sign, in order to get the balance of the money, At the same-time I wrote the four certificates of no defence, of which the papers attached hereto are copies, and gave ¿hem to John D. Cowen in presence of James T. Brady, in the banking-office of Brady & Co., and explained to him fully and carefully their object and what we wanted them for, telling him that in case Mr. Brady wanted to spll these securities, that whoever would wish to buy them, would require a certificate from the parties executing the papers, setting forth that they had no defence to the payment of them, and that they could not he sold without their having those certificates, and that he had better have them signed at once by his brothers and father whilst the matter was going on, so that Mr. Brady would not have to go to the country or send to have them signed after having sold them. Mr. Cowen took the certificates with the checks or orders home with him and returned them in four or five days, signed by all the parties. The certificates were brought to me by Mr. Cowen, and I pronounced them properly signed, and gave them to Mr. Brady; and it was done while Mr. Brady held the bonds and mortgages in his own name.” * * * The master, in addition to the undisputed matters, found : that the delivery of the certificates by the Cowens was contemporaneous with the receipt of the money by them and was a condition precedent to the consummation of the loan; that the bank had no knowledge of the transaction before October 10th 1870. He decided that the transaction between Brady and the Cowens was usurious; and that the bank as assignee of the securities was in no better condition than Brady, unless it had taken the proper steps to protect itself. He further reported :— “ No inquiry was made of the Cowens by the bank, at the time of the assignment of the securities, as to whether they had any defence to the whole or any part of the obligation, but it is claimed on the part of the bank that it is ■ properly protected against any defence then existing, by the reception by them of the certificates of no defence, given by the debtors, notwithstanding the fact that they were executed and delivered at the time of the original transaction. The question then presents itself whether the certificates of no defence, given contemporaneously with the execution of a mortgage which is usurious, will avail in the hands of an assignee who makes no inquiry of the debtors of any kind, at the time of the assignment. Bonds are expressly made transferable by an Act of Assembly, and as such are an article of commerce. A man may bonfi fide purchase any security he can at the lowest possible price, and not be liable for the penalties of usury. But by the Act of Assembly the obligor is bound to pay only what is justly due at the date of the assignment, unless the obligee has protected himself by inquiry or notice. * * * “ The general rule is that the assignee takes subject to the equities of the assignor. The exception is, where inquiry is made and a defence precluded. Such conduct virtually makes a new contract. The original transaction being usurious, no act of the parties can affect its character as between themselves; to hold otherwise would render void the statute against usury. It is settled that any transaction, however artificial it may be, the effect of which would be an evasion of the statute, may be set aside in so far as it is usurious. The certificates' of no defence were entirely nugatory, so far as James T. Brady & Co. were concerned, had the obligors refused to pay its usury and gave no right to James T. Brady which was not already given by the mortgage. Any right to enforce the usurious contract which the Duquesne Bank might have, cannot be claimed through James T. Brady & Co. The firm not possessing that right, have hot assigned such a right to the bank. To hold that the certificates protected the bank because of their new tradition by James T. Brady to the bank, he not having any right under them, w.ould stamp the instruments with some of the characteristics of negotiable paper, which they do not and cannot possess. The certificates, having been given by the Cowens to James T. Brady & Co., and by Brady transferred to the Duquesne Savings Bank, the bank has no better title than James T. Brady & Co. had. They were not an estoppel in favor of Brady, and it cannot be claimed that by the assignment the assignee takes a better title than James T. Brady had himself. * * * The assignment of the certificates, thereforet, if they are held to work an estoppel, operate with this effect on a new contract to which the Duquesne Bank and the debtors are -the original parties. * * * “ Is the bank a boná fide holder, without notice ? Mr. Brady, as president of the bank, was certainly bound by any notice he would receive of a matter affecting its interests. He is a member of its board, and is one of its executive officers ; service upon him would be service upon the bank, and knowledge derived by him from any source, is knowledge by the bank under his care. As a party to the original transaction, he had personal knowledge of the fact that the loan was usurious. The,fact that James T. Brady offered these securities to the Duquesne Bank a short time after they were given by the Cowens, for $30,690, was sufficient to have put the Duquesne Bank on its guard and inquiry. The fact that James T. Brady presented to the bank certificates of no defence dating back to the original transaction,' should have suggested the prudence of an investigation. These circumstances were sufficient to put the bank on inquiry. * * * “ This constructive notice the bank certainly had. Positive information would have resulted from inquiry. But in this ease there was also direct notice to the corporation through James T. Brady, its president. The management and government of the bank is effected by its president and board of directors, or by those specially authorized. When a fact, gleaned from any source, is stated before the board by a member of it, and made a subject of conversation during the very transaction, it is impossible to doubt that the bank is to be affected, because knowledge of the fact material to be known is a part of the [res gesta. There cannot be a doubt, therefore, that knowledge imparted to the board by a director at a regular meeting is notice to the. bank. * * * When the mortgages were offered to the bank, the matter was fully and elaborately discussed by the board. * * * The fact that the securities were purchased at three per cent, per annum discount off, taken in connection with the fact that interest was allowed James T. Brady for the short period he held, would have afforded a ready means of ascertainment of facts from James T. Brady himself, and was constructive notice, even if no express notice was given to the bank by James T. Brady & Co., in its computation of the interest. But James T. Brady, when selling the securities for his own benefit, and being president of the bank, should be regarded as agent for the bank in his transactions with it, as well as for it; and as knowledge of the agent is knowledge of the principal, the Duquesne Bank should be regarded as having express notice. * * * “ Notice to the president or cashier, or other agent of the bank, is notice to the bank. Had James T. Brady not been a party to the original transaction, but fully aware of its usurious nature, and of the fact that his bank was about to purchase, could it be claimed that the bank had not notice, or that his silence would not affect it ? That he occupied a position in the transaction which was adverse to the bank, cannot relieve it from the consequences of his silence, when the bank has confided to him, as its chief officer, the duty of protecting its interests. As James T. Brady was president of the Duquesne Bank, knowledge by him of the usurious character of the securities was knowledge by the bank. The bank is not therefore an innocent holder without notice. * * * £‘ But in case the Duquesne Bank had neither actual or constructive notice of equities, is there, by virtue of the certificates held by it, an estoppel against the debtors and in their favor ? The Duquesne Bank having knowledge of and the relying upon certificates of no defence given to James T. Brady, claims that the debtors are thereby estopped from setting up any defence, or from making any prayer for relief by abatement of the amount of the mortgages, as against the bank. The Oowens had no knowledge of the intention to transfer the securities to the Duquesne Bank, and it cannot therefore be claimed that the certificates were given for the purpose of influencing the bank to purchase. Unless it can be shown that they wilfully misled the Duquesne Savings Bank in •inducing the purchase, the certificates are not an estoppel in favor ■of the bank. * * * “ What would be the effect if certificates like those in question •would work an estoppel in favor of an assignee? Under the pressure of his creditors, or of circumstances which were impending, what will a man not do to relieve himself or get further respite ? While the negotiation is pending through which alone the relief can be had, the creditor is generally master of the ■situation, and can impose the hardest and most oppressive terms, because tbe desperate circumstances of tbe debtor would either seem to make it prudent on the part of^the lender, or the opportunity is afforded him, to profit by the borrower’s necessities. If certificates could, as in this case, protect against the consequences of usurious transactions, the precaution, is an easy one, and would soon become the rule among usurers. The statute of May 28th 1858 was designated for the relief and protection of that class of persons whose poverty is their destruction, and who are a prey to their necessities, and should be construed in such a way as to give effect to that intention. Judge Woodward, in 3 Wright 40, speaking of the statute for the recovery of usury, says that ‘ it is entitled to a liberal and beneficial construction, and should be held to encourage great prudence and thoroughness of investigation.’ “ It is admitted that the certificates were a part of the original transaction; were executed and delivered before the payment of the money, and were demanded as a condition upon which only the money could be obtained. .They must be treated as if included in the mortgage; and how could it be claimed that by such certificates, so inserted that a third party, by an assignment without inquiry, would be in any better position than his assignor to protect himself in a usurious contract? “ Throughout this investigation, the statute of 1858 is continually staring us in the face; and so long as it stands, its intention must not be defeated, unless the debtor chooses to give away his rights under it to an assignee in the clearest, most deliberate and voluntary manner. “ The master is of opinion, therefore, that the certificates of no defence are no estoppel in favor of the Duquesne Savings Bank, and that the amount due the said bank from the Cowens is the amount of money actually received by them^on said securities, viz., $28,800, with interest, and a decree is suggested in accordance therewith.” Exceptions were filed by the defendants to the master’s report. After argument, they were overruled and the report confirmed. The court (Acheson, P. J.) decreed:— “ 1. The joint judgment be reduced to the sum of $28,800, payable September 20th 1878, and bearing annual interest from September 20th 1870. “ 2. The judgment against Samuel Cowen be reduced to $7200, payable September 20th 1878, with annual interest from September 20 th 1870. “ 3. The judgment against John D. Cowen be reduced to the sum of $8640, payable September 20th 1878, with annual interest from September 20th 1870. “4. The judgment against W. H. Cowen be reduced to the sum of f6480, payable September 20th 1878, with interest from September 20th 1870. “ 5. That the Duquesne Savings Bank be restrained and enjoined from the collection of any'portion of said judgments or mortgages until they have entered credits reducing the amounts of their liens to the sums above indicated, and an order of cancellation is hereby made to the extent of such reduction.” The defendants appealed to the Supreme Court, and assigned the decree for error.
74 Pa. 439Falls v. Reis (1874)
173, to October and November Term 1873. This was an action of ejectment, brought October 26th 1871, by Thomas H. Falls, for a strip of land 292 feet long, in the city of New Castle. Both parties claimed under Thomas Falls, deceased. The decedent for many years before his death was the owner of a piece of land adjoining New Castle on the north and afterwards included in it.
74 Pa. 442Antram v. Thorndell (1874)
1. Moore having a subscription list of scholars to a Normal School gave it to Antram to collect, and drew an order on Antram in favor of Thorndell, which Antram accepted payable “out of the firstmoney collected.” Antram left the list with Moore who collected the money. In a suit by the payee against Antram, Held, the mere leaving the list was not authority to Moore to collect and discharge the subscribers. 2. There was evidence that Antram was to hold the list, the subscribers come to him and pay : that he did not know he had authority to collect nor that he was accountable on the list. The court charged that Antram was liable for Moore’s default. Held to be error, the question was for the jury. 3. Evidence that when the list was left with Antram by Moore, it was understood between them, that Antram was not to collect the money, but it was to be paid to him by the subscribers, was admissible. 4. Antram was treasurer of the school; for mere neglect in not collecting the subscriptions he was liable to the association and not the payee.
74 Pa. 445Sterling v. Stewart (1874)
Error to the Court of Common Pleas of Gfreene county: Of October and November Term 1873, No. 87. This was an action of debt, brought by A. P. Stewart against Abraham Sterling and J. C. Cooper. Sterling only appeared and pleaded. The cause of action was the following note, which the plaintiff gave in evidence and rested:— “ One day after date with seven per cent, interest we or either of us promise to pay to the order of A. P. Stewart the sum of Five Hundred Dollars. For value received as witness our hands and seals Nov. 9, 1866. “ Signed, J. C. Cooper. [seal.] Abraham Sterling, [seal.]” There was evidence for the defendant that when the money for which this note was given was borrowed, it was understood by all the parties that Cooper was borrowing $250 and Sterling $250, and that they were to be individually bound each for $250 and no more. Cooper went first to Mr. Stewart and drew the money and signed his name to the note as drawn up by Stewart. A few days after this, Sterling went to Stewart and told him he had come to give his note for the $250 he had borrowed; that Stewart produced the note which he had drawn up and which Cooper had signed, but Sterling, seeing it was a joint note, refused to sign it, telling Stewart that he and Cooper were each liable for the one-half of the money and no more, and saying that he did not want to enter into a note that would bind him for more than the amount borrowed by him. He refused to sign the note until Stewart assured him that he intended to hold each of them only in that way, and promised to give him a receipt in full of his share and in discharge of his liability of the note, when he had paid the one-half of it. Sterling afterwards paid one-half of the note and interest, and Stewart gav.e him a receipt; that it was “ in full of his share of the note that Stewart on several occasions told the defendant, in presence of other parties, and told other parties, that he only held him for the one-half of the note; that Sterling told Stewart, at the time he paid his half of the note, and at other times, that he had better make the other half of the note from Cooper, to which Stewart replied that he would take Cooper for it, and that he, Sterling, need not trouble himself about it. In rebuttal Stewart testified that he had given Mr. Sterling a receipt, but that it was in other words than those testified to by the defendant’s witnesses, and also denied having entered into any agreement to release Sterling. The defendant submitted these points:— 1. If the jury believe that Stewart, immediately before and at the time of signing the note, told Sterling that if he would sign the note he would not hold him for more than the one-half of it, and that in pursuance of this promise he signed the note, it is a fraud to seek to recover the whole of this note from Sterling, and Sterling having paid the one-half of the note before this suit, the plaintiff is entitled to recover. 2. If the jury believe that Stewart told Sterling that if he could pay his half of the note that he (Stewart) would give him a receipt in full for his half of the note, and that Sterling then paid him the one-half the note and interest', and Stewart gave him a receipt therefor, in which he stated “ that it was in full for his half of the note given by Cooper and Sterling to A. P. Stewart,” the plaintiff is not entitled to recover. The court (Gilmore, P. J.) answered:— “ The first point is correct, and if you have evidence sufficient to satisfy you that the note was signed under the circumstances detailed in the point, the plaintiff cannot recover. “ Second point refused.” The verdict was for the plaintiff for $347.50. The defendant took a writ of error, and assigned for error the answer to his second point.
74 Pa. 448Silveus's Executors v. Porter (1874)
Error to the Court of Common Pleas of Greene county: Of October and November Term 1873, No. 188. This was an action of trespass d. b. a., brought by William A. Porter and Elizabeth his wife, for her use, against Henry B. Silveus; the defendant having died, A. A. Purman and D. M. Silveus, his executors, were substituted. The action was against the defendant as sheriff, for selling, under an execution against Porter the husband, goods which Mrs. Porter alleged belonged to her. The case was tried September 19th 1873, before Campbell, P. J. Mrs. Porter was the owner of a hotel called the “ Greene House.” On the 22d of January 1868, she entered into an agreement with James P. Cosgray, by which she was to give a room in the house and fit it for a bar-room, and the stable, on her lot for the use of the parties jointly; Cosgray “ to give his time and labor as an equivalent for the rent of the bar-room, and have entire control of the bar and bar-room.” He was to give the stable on a lot belonging to him as an equivalent for Mrs. Porter’s. stable, both stables to be used for stabling horses for the joint benefit of the parties; each to furnish one-half the capital to buy liquors, oats, hay, corn and other things necessary for the bar and stable, the profits and losses of the bar and stable to be borne equally by the parties; each to pay half the wages of the hostlers, but Mrs. Porter to bear two-thirds of the expénse of their boarding; settlements and division of the profits of the bar and stable to be made weekly, but Cosgray not to receive any of the profits for boarding and lodging travellers, nor to be responsible for any loss ; the partnership to commence from the succeeding April Term of the Court of Quarter Sessions, when a tavern license was to be procured, and continue for one year. The parties went into possession on April 1st 1858, and continued nnder the agreement until October 1st, when Mrs. Porter took the stable, and Cosgray took the bar, for which he was to pay §15 a week. Cosgray bought chairs, range, tables, bedsteads, &c., for the house, and Mrs. Porter paid for them out of her share of the profits of the bar and stable; they were paid for when the parties settled in October. To December Term 1870, James Allen recovered a judgment against William A. Porter for $215, on which an execution was issued on the 7th of November 1870, the furniture above mentioned levied on and sold by the defendant as sheriff; to recover damages for this, the present action was brought. The defendant submitted the following points, all of which were overruled:— 1. If the jury believe that Mrs. Porter and James P. Cosgray entered into partnership to keep a hotel in the Greene House, which belonged to Mrs. Porter, and that by the agreement between them Mrs. Porter was to keep up the table and chambers, and Cosgray was to keep the bar and stable, and that the table and chambers produced no profit, and that the bar and stable were profitable, which profits were to be equally divided between them— that Cosgray furnished the bar with liquors and the stable with feed, &c., and that with the proceeds of Mrs. Porter’s share of the profits Cosgray bought and paid for the property sold by the sheriff, then the said property was not her separate property and could be sold to satisfy the debts of her husband, and the plaintiffs are not entitled to recover. 2. If the jury believe that Mrs. Porter bought the goods sold by the sheriff, from James P. Cosgray, on her own credit, then they were not her separate property within the meaning and spirit of the Act of 1848, and were liable to be sold for the debts of her husband, and the plaintiffs are not entitled to recover. 3. If the jury disbelieve all the evidence of the plaintiff, the plaintiff cannot recover. 4. If the 'jury disbelieve part of the evidence of the plaintiff and believe the residue, she is not entitled to recover. 5. If the jury believe all the evidence of the plaintiff, the plaintiff cannot recover. The court charged:— “We charge you that it is conceded here that the property known as the Greene House belonged to Mrs. Porter as her separate property. If you find that the bar-room and stable were the separate property of Mrs. Porter, and that Cosgray furnished the personal property involved in this suit to her upon the credit of her said property, and that it was afterwards paid for out of the proceeds of the venture of Cosgray and Mrs. Porter, concerning the bar and stable, your verdict must be for the plaintiff.” The verdict was for the plaintiff for $343.83. The defendants sued out a writ of error, and assigned for error the answers to their first, second and third points, and the charge to the jury.
74 Pa. 452Harris's Estate (1874)
1. When a testator gives to his next of kin in classes, leaving the proportions doubtful, the several classes will take according to the Statute of Distributions. 2. Artificial'rules must yield to the intention of the testator, expressed or implied. 3. A bequest was “ unto my brother, William Harris and my sister Anna Vance's heirs the balance of my goods and chattels and credits and lands equally except Rev. John A. Vance, he must have all he owes me at this time over and above the said heirs of William and Anna’s heirs.” At the date of the will William was dead leaving three children, and Anna dead leaving six. Held, that the “ balance” was to be divided amongst the nine children. 4. Baskin’s Appeal, 3 Barr 304; Risk’s Appeal, 2 P. E. Smith 269; Witmer v. Ebersole, 5 Barr 458, remarked on.
74 Pa. 454German Township School District v. Sangston (1874)
1. Tire building-tax of a school district cannot be diverted to ordinary purposes. 2. A mandamus execution to collect a judgment against a school district for building, cannot divert the ordinary taxes from appropriation to debts contracted before it was issued, for the schools during the period for which the directors have authorized them to be kept open, although that be more than five months, and although the taxes may have been paid into the treasury after the mandamus was served. 3. The surplus of the annual school-tax may be appropriated for the payment of buildings if it does not prevent the schools from being kept open for five months in the subsequent year. 4. If the directors contract debts for building so as to interfere with exercise of their discretion to keep the schools open more than five months, it is a determination against the exercise of such discretion.
74 Pa. 458Staup v. Commonwealth (1874)
Error to the Court of Oyer and Terminer of Fayette county : No. 64, to October and November Term 1873. At September Term 1872, Jacob Staup and Henry Staup were jointly indicted for the murder of Alpheus Glover. The indictment was continued until December Term 1872. At December Term Jacob Staup was separately arraigned and pleaded “ Not guilty.” He was tried at that term and found guilty of murder in the first degree. A rule to show cause why a new trial should not be granted was made absolute and a new trial ordered. On the 4th of March 1873 he was again tried before Gilmore, P. J., and his associates. A number of the jurors when called said that they had formed opinions as to the guilt or innocence of the prisoner, from hearing or reading the testimony on the former trial, which opinions still rested on their minds. They were all challenged for cause, hut the challenges were overruled. Amo'ngst others was J.' Evans Einley, who, in answer to the question put to him, said: — ■ “ Have formed and expressed an opinion as to the guilt or innocence of the prisoner; read evidence of former trial; still entertain that opinion, which it would take some evidence to remove; this opinion would not bias or influence my judgment, if I were sworn as a juror; this opinion was formed from reading evidence of former trial.” Prisoner challenged him for cause. He further said:— “If sworn as a juror, I could and would make up my verdict exclusively upon the evidence given here, uninfluenced and unbiassed by my present opinion.” The challenge was- overruled and the juror sworn. At the request of the prisoner, a bill of exceptions was sealed. After the Commonwealth had closed her ’ease, the prisoner offered to call Henry Sta-up, who was jointly indicted with him, to prove that Henry, and not the prisoner, had shot the deceased. The Commonwealth objected to the competency of the witness, because he was a co-defendant with the prisoner, and was in the same position as to competency as if on trial himself. The witness was rejected on the ground that he was jointly indicted with the prisoner, and the court sealed a bill of exceptions. Upon the cross-examination of Elizabeth Glover, a witness for the prisoner, the Commonwealth offered to ask her “ if she did not say to A1 Bowie, in the presence of your father, on the evening of the murder, that this thing didn’t surprise me a bit; that I had been expecting it a long time,” for the purpose of affecting her credibility. The prisoner objected, that the opinion of this witness or any other, or any want of surprise, or any expectation she may have had, wherever expressed, is not material to the issue trying. The prisoner cannot be affected by it. ■ Per Curiam: — “We think the evidence competent, as it might have some bearing upon her veracity. We think it would he but slight, if any; but on this account it is received, and a bill of exceptions sealed.” After the evidence had been closed, the prisoner made the following offer:— “And now, March 10th 1873, the counsel for prisoner offers to recall Andrew Boyd (who testified as to a pistol, said to be in possession of prisoner some two or three years ago), and to produce said pistol, and to prove by him that it is the same, and then to show that it will not carry the rifle-ball; and that they were not aware that this could be proved until after the adjournment of the court Saturday evening.” Commonwealth objects, “that the case having been closed and all their witnesses gone home, it is too late to admit the evidence. Also that the prisoner and his counsel verbally admit that they had the pistol in possession all the week, and should have produced it; that the Commonwealth anticipated the production of a pistol and had its witnesses present to meet it, which witnesses are not present, having been discharged by the court two days since.” Per Curiam“ This case was closed on Saturday about five o’clock, when the witnesses on the part of the Commonwealth were publicly discharged. The offer to open the case is now made on Monday morning, to which time the court stood adjourned, to hear the arguments of counsel and give the case to the jury. This evidence would be opening the case on a material point. We think it would not be proper to hear this evidence now overruled.” The offer was rejected, and a bill of exceptions sealed. The evidence, both of the Commonwealth and the prisoner, was very voluminous. To understand the questions considered and decided by the Supreme Court, does not require that even a synopsis of it should be given. The prisoner on this trial was convicted of murder in the first degree. He removed the record to the Supreme Court by writ of error, and there assigned fourteen errors. The first ten were to the overruling of the prisoner’s challenges of jurors — the tenth relating to the challenge of J. Evans Finley. 11. The refusal to allow Henry Staup to testify. 12. Allowing the question to Elizabeth Glover. 13. The refusal to allow Andrew Boyd to be recalled. 14. The ingredients necessary to constitute murder in the first degree were not proved to exist.
74 Pa. 463Briceland v. Commonwealth (1874)
Error to the Court of Oyer and Terminer of Washington county: No. 73, to October and November Term 1873. Henry Briceland was indicted and tried for murder at the February Term of the Court of Oyer and Terminer of Washington county, on the 17th day of February 1873, before Acheson, P. J., and both his associates. The February Term of the court ended on Saturday., March 1st. Thé leading facts as to the murder were these: About midnight of the 4th of December 1872, John Allingham, living in Eldersville, Washington county, was killed whilst in bed and asleep in his own dwelling-house. His death was caused by the discharge of a piece of iron water-pipe, loaded with powder and slugs, placed on the top rail of the porch and the window-sill, near the head of his bed, and fired by a fuse communicating with the pipe. The prisoner was arrested next day on the charge of having committed the murder. The evidence, as is usual in such cases, was circumstantial, and was made up of the testimony of very many witnesses. The questions decided by the Supreme Court will require no other statement of it but that relating to the defence of alibi, as contained in part of the charge of Judge Acheson. The prisoner gave evidence for the purpose of showing that he was at the house of a man named Chap. Truáx at the time the murder was committed. This house was about two and a quarter miles from the residence of the deceased. Mrs. Truax testified that on the night of the murder the prisoner came to their house and went to bed shortly after nine o’clock, in a room adjoining her chamber, into which there was a door from the prisoner’s room, which was not closed. “ I waked about one o’clock, and saw Brieeland’s coat on the chair, and heard him snore and grit his teeth.” Prisoner was waked in the morning by her husband about five and a half o’clock, and came into the kitchen and ate his breakfast before six o’clock. Chap.-Truax, the husband, testified substantially as his wife had done. On the question of alibi the court charged :— “‘We will now turn your attention to an important ground of defence. The prisoner relies upon evidence in the nature of an alibi ; that is to say, that he was at another place at the time the crime was committed. This is a defence which, when satisfactorily made out, necessarily overturns the strongest circumstantial evidence, and it is sometimes the only available defence to an innocent man. But in every case where the defence of alibi is resorted to, it should be very closely scrutinized, for the reason so forcibly expressed by an eminent judge: ‘ It is a defence often attempted by contrivance, subornation or perjury. The proof, therefore, offered to sustain it is to be subjected to a rigid scrutiny; because, without attempting to contest or rebut the evidence of facts sustaining the charge, it attempts to prove affirmatively another fact wholly inconsistent with it; and this defence is equally available, if satisfactorily established, to avoid the force of- positive as of circumstantial evidence. In the conflict of evidence, whatever tends to support the one tends in the same degree to rebut and overthrow the other, and it is for the jury to decide where the truth lies.’ The prisoner having undertaken to prove that he could not have been present when the murder was committed, or the means were used to effect it, your attention is directed to the time at which the witnesses for the defence testify they saw the prisoner, and to the particular circumstances they detail. Keeping in mind, then, the other proofs in the case showing the hour of the night when the murder took place, let us proceed to consider the evidence on which the defence relies to show the absence of the prisoner from the fatal spot.” After reading to the jury the evidence of Mr. and Mrs. Truax, the court said:— “Admitting the testimony of Chap. Truax and his wife to be true, and making allowance for any variation of time which the evidence would warrant, had the prisoner still the opportunity of making his preparations and being at Eldersville at midnight of Wednesday, the 4th of December? The proof is that he was at Eldersville from Friday until Tuesday morning before the murder, at the house of Ruth Howard. When he left or under what circumstances does not appear, nor is there anything in the testimony, so far as we recollect, to prove his first arrival at the station on Tuesday, the day before the murder. He was back in the neighborhood on that day and at the station, as well as on Wednesday. He accounts for his time on the afternoon of that day from three to four o’clock p. M. till nine o’clock at night, when he went to bed at Truax’s. From nine P. M. to one o’clock A. M. of Thursday, a period of about four hours, his time is not accounted for. Could he within this time have gone to Eldersville, committed the deed and returned to the Truax house? The distance by the road is about two miles and a quarter’; Mr. Gardner says two miles by the most direct route, pursuing that indicated by the tracks through the fields, coming out on the Steubenville road near the locust tree, and that the divergence to and from that tree would be about four rods. “ The concurring evidence is that the explosion took place about twelve o’clock. Mrs. Noah says the clock struck twelve just after she heard it, and immediately before she heard a person running down the Steubenville road, which would be in the direction of the station. This would make about an interval of three hours from the time the prisoner went to bed at Truax’s, and allow about an hour’s interval between the explosion and the time when Mrs. Truax awoke" and roused her husband for the purpose of putting coal on the fire. Would this afford a sufficient time for the prisoner’s return from Eldersville, supposing he were the person Mrs. Noah heard running down the road about the time the clock struck twelve ? It is for you to determine how far this evidence is in conflict with the other testimony in the case. Does it cover the time so as to preclude the possibility of the prisoner’s presence at the place of the murder ? The burden is on the prisoner to make it out to your satisfaction; but his failure so to do does not relieve the Commonwealth from the duty of proving that he was the perpetrator of the crime.” In concluding the charge the court Said:— “ You will consider all the circumstances proven to your satisfaction which point to the prisoner' as the guilty agent, and say whether they all concur to show that he committed the crime, and are inconsistent with any other rational conclusion. “ The prisoner’s guilt must be made out by evidence sufficiently conclusive to exclude any reasonable supposition of innocence. Upon the whole case, and every material part of it, you are to give him the benefit of any reasonable doubt, arising out of the evidence. If the evidence convinces your understanding and satisfies your reason and judgment, you can safely act upon it. A doubt such as the law recognises is not a mere speculation whether a matter established to your satisfaction may not be otherwise. It must fairly arise out of the evidence, and not be merely fancied or conjured up to escape the consequences of an unpleasant verdict. [It must be an honest doubt — such a difficulty as fairly strikes a conscientious mind and clouds the judgment. If the mind be fairly satisfied of a fact on the evidence, as much so as would induce a man of reasonable firmness and judgment to take the fact as true and act upon it in a matter of importance to himself, it would be sufficient to rest a verdict upon it.] “We have thus endeavored to explain to you the law and bring before you the evidence on both sides. If we have omitted anything material, you must ascribe it to inadvertence, and you will recall it in your searching examination of the whole case. Allowing the prisoner the benefit of the presumption of innocence and of every rational doubt, you will give the evidence your calm, deliberate and solemn consideration. If you should reach the conclusion that the prisoner caused the death of John Allingham, by the means and in the manner proven by the Commonwealth, he would be guilty of murder of the first degree; but, as we have explained, it devolves upon you, as a jury, in case of conviction, to ascertain in your verdict the degree of the crime. We now commit the case to your hands. Be governed entirely by the law and the evidence, and follow your own conscientious convictions. Let nothing turn you aside from yoto sworn duty to yourselves, the Commonwealth and the prisoner, and may an'infinitely-wise God preside over your deliberations and guide you to a just conclusion.” The jury retired at seven o’clock P. M. on Saturday, March 1st, the last day of the February Term; the court informing them that the court would meet at any time that night or on Sunday, to take their verdict, if they should have agreed ; the court then adjourned to meet upon the ringing of the court-house bell, at any time before twelve o’clock or on Sunday ; otherwise to meet on Monday at nine A. M. On Monday March 3d, the court met at nine o’clock A. M. The jury came into court and announced that they were unable to agree, and asked to be discharged. The request was declined by the court, the court was adjourned and met at ten A. M., when thejury again came in and asked further instruction, which being given, they retired. On March 4th the jury came in and rendered a verdict that the prisoner was “ Guilty of murder in the first degree.” A motion was made for a new trial which, after argument, was overruled and on the 4th of April 1873, the prisoner was sentenced to be hanged. The prisoner removed the record to the Supreme Court, and there assigned twenty-one errors. The second was the charge of the court on the question of alibi. The twenty-first was that the court erred in entering judgment on the verdict.
74 Pa. 470Torrens v. Campbell (1874)
1. A firm of which Campbell was a partner, indebted to Calvin sold out to Tiernan. Torrens and Campbell formed a partnership and agreed by writing that Campbell was to buy Tiernan’s interest and put it into the partnership as his part of the capital, and the partnership to pay all the debts of the first firm. Held, that Calvin could not maintain an action against Torrens and Campbell in his own name. 2. Where a contract is for the benefit of the contracting party and a third person is a stranger to the consideration, the action must generally be by the promissee. 3. When the promissor receives money or property to he converted into money, in trust for another, the action may be in the name of the other. 4. Evidence that when the agreement was made Campbell showed a list of the firm’s debts which did not contain Calvin’s, was admissible as evidence, that Calvin’s was not one of the debts which it was agreed should be paid. 5. A father may allow his minor child to contract for himself and hold his wages and after they are earned cannot withdraw his consent. Per Gilmore, P. J. 6. Blymire v. Boistle, 6 Watts 182; Campbell v. Laeoek, 4 Wright 448, followed.
74 Pa. 476Pattison v. Armstrong (1874)
1. McGuier bought Pattison’s land at sheriff’s sale and sold to Armstrong. Pattison, alleging that by agreement with McGuier the land was bought in trust for him and that Armstrong had notice of the trust, brought ejectment against Armstrong, who died before the trial. Held, that Pattison was competent to testify as to the agreement between himself and McGuier. 2. The death of an intervening vendee will not, under the Act of April 15th 1869, exclude either of the parties to the original contract from testifying, both being alive. 3. Karns v. Tanner, 16 P. P. Smith 297, followed.
74 Pa. 479Commonwealth ex rel. Parker v. Emminger (1871)
This was an application at the relation of Isaac B. Parker and other citizens and voters of the Nineteenth Senatorial District of Pennsylvania, composed of the counties of Cumberland and Franklin, for a mandamus to John Emminger, one of the return judges of that district, commanding him to sign a proper certificate that James M. Weakley had been elected senator from that district at an election held on the 10th of October 1871, file such certificate in the office of the prothonotary of Cumberland county, and transmit a duplicate to the secretary of the Commonwealth, as required by the Act of July 2d 1839. The petition of the relators set forth that the return judges of Cumberland county certified that at the election Henry K. Peffer received in that county 4114 votes for senator, and James M. Weakley received 4263 votes for the same office, and filed their certificate in the office of the prothonotary of that county; that the return judges of Franklin made and filed a similar certificate that Henry K. Peffer had received in that county for the office of senator 3951 votes, and James M. Weakley had received 4605 votes ; that John Emminger, one of the return judges of Cumberland county who had signed the general return for that county, was appointed return judge from that county for the district, and that Henderson Gr. Skiles, one of the return judges of Franklin county, who had signed the general return for that county, was appointed return judge from that county for that district; that these two return judges met at the court-house in Carlisle on the day appointed by law, and signed a certificate as follows:— “ We, the return judges of the 19th Senatorial District, having met at the court-house in the borough of Carlisle, on October 17th 1871, to cast up the votes cast in the said district, composed of the counties of Cumberland and Franklin, for a senator therefrom, do certify that from the county returns it appears that in the county of Cumberland James M. Weakley received 4263 votes, and Henry K. Peffer had 4114 votes. In the county of Franklin J. M. Weakley had 4605 votes and Henry K. Peffer 3951 votes; and-it appearing that fraud and bribery have been made use of in obtaining votes to so large an extent as to vitiate the election or change the result, we decline to certify to the election of either of said candidates, and refer the subject to the senate, which under the Constitution is made the judge of the qualification of its own members. “ John Emminger, “H. Gr. Skiles, “ Return Judges 19th Sen. Dist., Pa.” One copy of this certificate was filed in the prothonorary's office, one transmitted to the secretary of the Commonwealth, and one to James M. Weakley; that afterward Skiles signed a certificate setting forth that James M. Weakley had received the highest number of votes in the Senatorial District, and that he was duly elected senator; this certificate was filed in the prothonotary’s office and transmitted to the secretary of the Commonwealth and Mr. Weakley respectively. The petition averred that it appeared by the record as above set forth that Mr. Weakley had received a majority of votes for senator in the 19th district, and was entitled to a certificate of election; that the above-named return judges had refused to perform their duties in this behalf as required by law, and that by such refusal there was no record in the prothonotary’s office of the election of state senator in the 19th district, nor certificate of such election furnished to the secretary of the Commonwealth which would show to the Senate that any one had been elected senator from the 19th district, and the right of the petitioners and others to be represented in the Senate of the Commonwealth by one for whom they had voted and who had been duly elected would be taken away. •• The prayer was for a mandamus to compel Emminger, in conjunction with Skiles, to sign, file and transmit according to law a certificate that James M. Weakley had been elected senator of the 19th district. Emminger answered, averring that it was not his duty to sign the certificate of election, for the reason that many irregularities were committed in the holding of 'the election, consisting of closing the polls in some districts before the hour fixed bylaw, adjourning to take dinner, receiving votes from persons who were not qualified voters, &e.; and for the reason that undue and improper influences were used with voters, and that numerous other frauds and irregularities, to the best of his belief and. suspicion, had been perpetrated. The Commonwealth filed a demurrer. The ease was argued by
74 Pa. 486Greenough v. Fulton Coal Co. (1874)
6. This was an action of ejectment, brought December 22d 1868, by William I. Greenough against The Fulton Coal Company and others, for a tract of land, “ consisting of tracts and parts of tracts,” &c., containing 1674 acres or thereabouts. The premises in controversy were tracts and parts of tracts, surveyed on warrants in the names of Henry Antis, Thomas Adams, James Jenkins, Robert Adams, Frederick Antis and Thomas Foster.