89 Pa.

Volume 89 — Pennsylvania State Reports

100 opinions

89 Pa. 15Link v. Germantown Building Ass'n (1879)
89 Pa. 22Whitney v. Shippen (1879)
Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 87. Covenant by Edward Shippen and J. L. Harmer, executors of the will of Robert E. Gray, deceased, against Elisha D. Whitney. The material facts will he found in the opinion of this court. , At the trial, before Peirce, J., the defendant made the following offers of testimony, all of which the court overruled : 1. To prove, by Thomas J. Martin, that the brewery premises were surrendered by Whitney, the defendant, in much better repair at the end of the lease than they were when leased by Gray to Martin. 2. To prove, by the same witness, an agreement between the lessor, Gray, and Whitney, made on or about the 29th of November 1867, that said Whitney should be the owner of and might remove, at the end of the lease, all the articles which he did remove from the brewery premises. 3. To prove, by Edward B. Schnider, that a certain paper, then and there produced and identified by the witness, dated November 13th 1867, was an inventory of the property at that time on the brewery premises.; that the articles therein mentioned belonged to Thomas J. Martin, and that they were sold by him to Mr. Whitney, the defendant, between the 13th and 29th day of November 1867, with the consent of Gray, the lessor. 4. To prove by the same witness, that in the month of November 1867, Martin, the lessee, with the consent of Gray, the lessor, offered to sell to Whitney his unexpired term in the brewery, and certain articles of property therein contained, excluding those mentioned in the lease, but including those removed by Whitney, and claimed for in this suit for $25,000; that Whitney informed Gray that he was willing to purchase said articles at that price if he could remove them at the end of the term, and that Gray agreed with Whitney that if he bought the articles from Martin and took an assignment of the lease, said articles should be his property, and he should have the right to remove them at the end of the term, and that Whitney, thereupon and by reason of said agreement, purchased said articles from Martin, and paid him $25,000 for them, and took an assignment of the lease, dated November 29th 1867, the said Gray being a party to said assignment also. In the general charge the court, inter alia, said : “ By the lease in this case it is stipulated in paragraphs 3 and 4 as follows: ‘ 3. The lessee for himself, his heirs, executors, administrators and assigns, covenants and agrees with the lessor, his heirs, executors, administrators and assigns, that he will pay the said yearly rent in equal monthly portions as aforesaid, when and as the same accrues and becomes payable. That he will do all requisite or necessary repairs to the said premises and appurtenances, including the machinery, &c., at any time upon the premises, at his own proper cost and charges, and that in like manner he will pay all expenses incurred by reason of the said brewing business, and at the expiration of the term will deliver up peaceable possession of the said premises and appurtenances to the lessor in good tenant-able condition for use as a brewery, reasonable wear and tear excepted.’ “ ‘ 4. Should the lessee make any alterations or improvements of the said premises and appurtenances demised, the same are not to he removed by him, but shall belong and bé surrendered to the lessor at the end of the term.’ “ The object of these clauses of the léase appears to me to be that, as the premises were let as a brewery they should remain as such. I take these clauses to mean that if any alterations were made by the tenant they should be left on the premises; and I instruct you that the meaning of these clauses is, if there were any alterations or substitutions of machinery made they were to be left by the tenant.” The verdict was for the plaintiffs for $1666.52. The defendant took this writ, the errors assigned being first, second, third and fourth, the overruling the foregoing offers of testimony respectively, and fifth, the portions of the charge noted. The testimony of Schnider was overruled upon the assumption that it contradicted the terms of the lease. This rule applies only to parties to the instrument their representatives claiming for or under them, but not to strangers to the instrument: Krider v. Lafferty, 1 Whart. 303; Commonwealth v. Contner, 9 Harris 272. If Whitney purchased from Martin with the consent and under the agreement with Gray, either immediately before he became a party to the assignment of the lease, or with a view to taking such an assignment, then his undertaking in the assignment “ to assume and perform all the covenants in the said lease to be by T. J. Martin done and performed,” should be construed in the light of what had so recently taken place between Gray and himself, upon the faith of which he had paid a large sum of money. Moreover, it is in the power of the court to reform that provision in the assignment, if necessary, and it be not according to the terms of the agreement of Gray in the course of a transaction in which the assignment of the lease formed but a part. Martin was incompetent as a witness: McFerren v. Iron Go., 26 P. F. Smith 188 ; Karns v. Tanner, 16 Id. 297; Taylor v. Kelly, 30 Id. 95; Arthurs v. King, 3 Norris 530; Hanna v. Wray, 27 P. F. Smith 27. The offer by Schnider was to show negotiations for the lease and a previous parol agreement diametrically opposite to that in the lease and assignment. , The tenant stripped the brewery of the improvements he had made, and left it in such a condition that the business of brewing could not be conducted therein.
89 Pa. 26Fidelity Insurance & Trust Co. v. Miller (1879)
Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1878, No. 137. Debt by the Fidelity Insurance Trust and Safe Deposit Company, administrator d. b. n. c. t. a. of Charles W. Warnick, deceased, against Henry W. Miller. , The plaintiff filed a copy of a mortgage, which in substance was as follows: “ Whereas, The said Plenty W. Miller is justly and truly indebted to the said Charles W. Warnick, in the sum of twenty-two hundred dollars, payable one day after date of this mortgage; now this indenture witnesseth; that the said Henry W. Miller, for and in consideration of the aforesaid debt or sum of twenty-two hundred dollars, and for the better securing the payment of the same unto the said Charles W. Warnick, his executors, administrators and assigns, as and for and in consideration of the further sum of one dollar unto him well and truly paid by the said Charles W. War-nick, before the sealing and delivering hereof, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over unto the said Charles W. War-nick, his executors, administrators and assigns, the whole of the steamboat called ‘John Griffith,’ together with all her steam-engines, boilers, machinery, furniture, &c., to have and to hold the same unto the said Charles W. Warnick, his executors, administrators and assigns, to' and for his and their only proper use and behoof for ever. “Provided, however, nevertheless, That if the said Henry W. Miller, his executors, administrators and assigns, do and shall well and truly pay or cause to be paid unto said Charles W. Warnick, his executors, administrators or assigns, the aforesaid debt or sum of twenty-two hundred dollars, on the day and at the time herein-before mentioned and appointed for payment of the same, without any fraud or further delay, then this obligation shall cease and determine and become void, anything hereinbefore contained to the contrary notwithstanding. “And the said Henry W. Miller, for himself, his executors, administrators and assigns, doth hereby covenant and agree to and with the said Charles W. Warnick, his executors, administrators and assigns, that at the execution of these presents, he, the said Henry W. Miller, is the true and lawful owner of the steamboat ‘John Griffith,’ together with her steam-engines, boilers, machinery, masts, yards, sails, rigging, anchors, cables, boats, tackle, apparel and appurtenances, and that he now has full right and authority to mortgage or dispose of the same, freed from and clear, of all claims, encumbrances or demands whatsoever. And also that in case default shall be made in the payment of the twenty-two hundred dollars, as hereinbefore set'forth, at maturity, that then and from henceforth it shall and may be lawful for the said Charles W. Warnick to take possession of the said steamboat, ‘John Griffith,’ and expose her, together with all her steam-engines, boilers, machinery, &c., at public or private sale, at his discretion.” The defendant, in an affidavit of defence inter alia, averred, “ that deponent is not in any way personally liable on the instrument filed, it being merely security for a debt. No other evidence of indebtedness was filed.” The court in an opinion by Ludlow, P. J., said: “ The instrument upon which the plaintiff asks us to grant a judgment for want of an affidavit of defence is simply a transfer of title as security for the payment of money, with no absolute condition for the payment thereof. “ This is not a stronger case than the only one we have been able to find touching the subject in Pennsylvania. “ In Scott v. Fields, 7 Watts 360, the case to which we refer, a bond was acknowledged, and that was an instrument for the payment of money. Here there is simply and merely an acknowledgment of a debt. We are not informed what the original instrument was, if any, creating the debt secured by this paper. Whatever it was, it could not have been stronger than the bond acknowledged (as is said by the court) ‘ for the payment of a sum of money by instalmentsand as in that instance, it was held that ‘ no contract of borrowing or loan, can be implied in law from a mortgage as the foundation of the action when the contract is express and formal,’ so here in this instrument, where there is a mere recital of an obligation, a paper in the nature of a mortgage, no judgment ought to be granted because the instrument does not appear to be an instrument for the payment of money, and is not, therefore, within the original Affidavit of Defence Law or any of its supplements.” The court discharged the rule and the plaintiff took this writ, and assigned this action for error. An action of debt againt the defendant lies upon the instrument filed, because the deed fully and clearly sets forth a transaction upon which the law places a personal obligation: Conway v. Alexander, 7 Cranch 218; Chitty on Contracts 878; Yates v. Aston, 4 Q. B. 182; 2 Chitty on Pleading 214, n. t. The defendant is bound by the reeital contained in his deed: Parsons on Contracts, ed. 1873, *511. No precise form of words is necessary even in a specialty. Thus words of reeital in a- deed will constitute an agreement between the parties on which an action of covenant may be maintained (2 Leon. 122), and the recital in a deed of a previous agreement is equivalent to a confirmation and renewal of the agreement: Barfoot v. Freswell, 3 Keble 465; Saltoun v. Houstoun, 1 Bing. 433; Sampson v. Easterby, 9 B. & C. 505; Price on Limitations 200; Espinassee’s Nisi Prius *268; Paschall v. Passmore, 3 Harris 307; Truitt v. Spotts, 6 Norris 339. Debt lies upon an acknowledgment of indebtedness contained or recited in a specialty given as collateral security: King v. King, 1 P. & W. 15; Thomas v. Terry, Gilbert’s Eq. Rep. 110; Chitty’s Eq. Dig. 1483; Elder v. Rouse, 15 Wend. 218; Montgomery v. St. Stephens’s Church, 4 W. & S. 542 ; Hart v. Burton, 7 Marsh. (Ky.) 322; Coleman v. Van Rensselaer, 44 Howard’s Prac. 368. In Scott v. Fields, 7 Watts 360, the mortgage contained neither a covenant for payment nor an acknowledgment of a debt. Here there is an express admission of indebtedness.
89 Pa. 29Gallagher's Appeal (1879)
Where the account of an administrator has been confirmed, he has no such interest in the estate as will enable him to appeal from an order to pay over the balance in his hands.
89 Pa. 31Philadelphia & Reading Railroad v. Adams (1879)
Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January.Term 1878, No. 189. Case by Lena Adams against the Philadelphia and Reading Railroad Company. The narr. contained a single count, and alleged that Frank Adams, plaintiff’s son, was in a boat on the Delaware river, and was rowing the same in a careful manner; that defendant had a' steamship called the “Leopard,” under the care of its servants; that the defendant took such bad care thereof that it ran foul of and struck said boat, whereby said Adams was thrown into the water and was drowned. Plea, “Not guilty.” The trial was before Finletter, J. The facts and legal questions raised are stated in the opinion of this court. The verdict was for the plaintiff, for $2700. The railroad company took this writ of error. It was error to instruct the jury that to relieve from responsibility the accident must be such an one as no human foresight could prevent. This rule is too stringent. Inevitable accident is that which could net have been prevented by the exercise of ordinary caution and maritime skill: The Virgil, 2 W. Rob. 205; The Marpesia, L. R. 4 P. C. 212; The Europa, 14 Jurist 629; Kelsey v. Barney, 12 N. Y. 425. The admiralty rule, that a steamer shall keep out of the way of a sailing vessel, certainly does not apply to a row-boat. The reason of the rule is that a sailing vessel has not the same means of locomotion that the steamer has, and that the latter must therefore give way to the former; but there is no occasion for a steamer to avoid a row-boat, whose course can readily be changed: 1 Parsons’ Ship. 566; Lockwood v. Lashell, 7 Harris 344; Trinity House Rules of 1840; City of London, 4 Notes of Cases 40; Ward v. Armstrong, 14 111. 283; Pearce v. Page, 24 How. 228; Bigley v. Williams, 30 P. F. Smith 107; Holmes v. Watson, 5 Casey 459; Beck v. East River Ferry Co., 6 Robertson (N. Y.) 82; Ince v. Ferry Co., 106 Mass. 149; Beach v. Parmeter, 11 Harris 196; Grier v. Sampson, 3 Casey 183. A steamer is not required to take precautions when there is no apparent danger: The Scotia, 14 Wall. 170; or to slacken her speed until a collision is imminent: The Scotia, supra; The Free State, 1 Otto 200; Beck v. Ferry Co., supra. It was to be supposed that the boat would move out of the steamer’s way. The steamer had the superior right of navigation, even had the men in the boat been exercising the right of navigation : Cobb v. Bennett, 25 P. F. Smith 326. The instruction as to damages was too broad: Railroad Co. v. Books, 7 P. F. Smith 339; Railroad Co. v. Kelly, 7 Casey 372; Railroad Co. v. Ogier, 11 Id. 60. Steamboats having means to avoid injury which other boats do not possess, the law exacts of them exertions proportionate to their powers: Holmes v. Watson, 5 Casey 457; The Tug Sampson, 3 Am. L. Reg. 337; S. c. 11 Pitts. Leg. Jour. 183. British Orders in Council, or Trinity House Rules, do not control- American vessels in our waters: The Scotia, supra.
89 Pa. 36Thomson's Appeal (1879)
Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1879, No. 97. The appeal of Lavinia F. Thomson from the decree of the court dismissing her exceptions to the supplemental report of the auditor in distribution, in the estate of J. Edgar Thomson, deceased, and in confirming said report. The administrators of the estate of said decedent filed in the Orphans’ Court of Philadelphia their accounts, which by the consent of the parties in interest were referred to Joseph A. Clay, Esq., as auditor, with power to audit, settle and adjust the same, and to make distribution of the money in the hands of the accountant. Mr. Thomson died on May 27 th 1874, leaving the following will and codicils: “I, J. Edgar Thomson, of the city of Philadelphia, and state of Pennsylvania, do make this my last will and testament. I give and bequeath all of my real and personal estate, except household furniture, to Lavinia F. Thomson, George B. Roberts and William M. Spackman, in trust: the income from which shall be devoted to the purposes hereinafter mentioned. “ The said trustees to have full power to sell any of my property and reinvest the proceeds whenever in their judgment the interest of the trust will be promoted thereby. “ The estate to be subject to the following payments : “First. To so much of the proceeds of said property as my dearly beloved wife, Lavinia F. Thomson, may deem necessary for the maintenance of herself and my dear niece, Charlotte F. Foster, they living in such style as my said wife may think best to promote their happiness and comfort during her lifetime. If my niece, Charlotte F. Foster, should survive my wife, then I direct that there shall be paid to her as long as she may live, the sum of two thousand dollars per annum. To my wife, Lavinia F. Thomson, I give absolutely all of my household furniture, books and ornaments. “Second. To each of my sisters, Anna and Mary Adeline-Thomson, during the life of each of them, the sum of one hundred dollars per month. “ Third. To my nephe-w, Edgar Levis Thomson, as long as he may live, the sum of one hundred and fifty dollars ($150) to be paid to him monthly. “ Fourth. To his wife, Hattie B. Thomson, all sums that may be charged against her upon my books at the time of my decease. “Fifth. To all the household servants that may be in my employment at the time of my decease, as soon as may be convenient to the trustees, the sum of two dollars and fifty cents per month for each month that each of them may have been in my service, as an acknowledgment of their faithfulness. “ The said trustees to appropriate the remainder of the net income of my estate after the payments above specified, or so much of it as may be judiciously applied thereto, to the education and maintenance of female orphans of railway employees whose fathers may have been killed while in the discharge of their duties: preference to be given, first, to the orphans of the employees engaged upon the Pennsylvania Railroad; second, to those of the Georgia Railroad, between Augusta and Atlanta, Georgia; third, to those of the lines controlled by the Pennsylvania Railroad Company by lease or otherwise ; fourth, to those of the employees of any other railroad company of the United States of America. “ If application shall not be made from these sources in.number sufficient to consume the annual income of the trust, the said trustees may at their option reinvest the surplus, or receive the female orphans of any other employees of railway companies of the United State upon the same terms and conditions as the orphans of those killed in the service of the company. “ The said trustees shall prescribe all rules and regulations that may be deemed necessary to carry out the objects of this trust, and rent or erect such buildings as may be required for said purposes. They may receive bequests or donations to increase the means to be applied to the objects of said trust. “ The said trustees may at any time add to their number, not exceeding six additional members, who shall perpetuate their existence by filling all vacancies that may occur in their number from death, resignation or otherwise, by electing such persons as they may deem best suited to carry out the objects of this trust, by a vote of majority of two-thirds of their number, any person, male or female, of high character for integrity and sound judgment. In witness whereof, I have hereunto set my hand and seal, this twentieth day of December, Anno Domini one thousand eight hundred and seventy-one. J. Edgar Thomson, [seal.] “ Signed, sealed, published and declared by the above-named J. Edgar Thomson, as and for his last will and testament, in the presence of us, who in his presence and in the presence of each other and at his request, have hereunto subscribed our names as witnesses. Herman J. Lombaert, Henry C. Sbackman. By a codicil the testator directed: “ This is a codicil to my last will and testament, made in sickness of body, but with a clear understanding and full testamentary intention. I desire my dear niece, Lottie Foster, but to w'hom I cherish the feelings of a father, to be so treated and regarded in the law as if she were really my child, receiving during her lifetime such income from my estate as if she were really my child, and I postpone the operation of the trusts of my will so as fully to effect this result until her decease, upon which event they are forthwith to take full effect as expressed in the will. “ Witness my hand and seal, this twenty-fourth day of May, A. D. 1874. (Written with lead pencil.) J. Edgar Thomson, [seal.] “ Witnesses: Jambs Kitchen, C. B. Smith. “ J. Edgar Thomson by Theo. Cuyler the name being thus placed at his request, he being too feeble to sign the same, except in pencil as above.” And by a second codicil interpreted the foregoing codicil as follows : “ The codicil which I added to my will the other night, May 24th, means that I wish my niece, Charlotte F. Foster, to be considered as my daughter, and to take out of the income of my estate all that she requires to render her more than comfortable in her housekeeping during her lifetime. “ I do not desire to postpone by it the operations of the trusts of my will, except so far as may be necessary to secure the above object. “Philadelphia, May 26th 1874. O. B. Smith, “ Witness: For J. Edgar Thomson. • B. B. McNally. The name being thus written, he being too weak to sign himself.” It was claimed on the part of the widow, Mrs. Thomson, that she w'as entitled to the principal and income of the estate, if she deemed it necessary to enable herself and daughter to live in the style they thought best to promote her own and her niece’s happiness and comfort during her lifetime, this claim being based on the use of the word “proceeds” in that part of testator’s will which directs that payment should be made to her of so much of the proceeds of said property as she may deem necessary, &c. The following are the material portions of the auditor’s report, bearing upon this question : “ The intentions of the testator, to any one examining the will dispassionately, are obvious enough. He designed to found a charity for the orphan children of employees of railroads; while, at the same time, he wished to make ample provision for his wife and niece, for their lives. About this there can be no real question. “ To effect his purposes, he gives, in the first place, and by unequivocal words, his entire estate, real and personal, to trustees, with a power to sell. This gift is absolute, and all the other provisions of the will are subordinate to it. He then subjects the estate to ‘ the following payments: first, to so much of the proceeds of said property as my dearly beloved wife, Lavinia Thomson, may deem necessary for the maintenance of herself and my dear niece, Charlotte E. Foster, they living in such style as my said wife may think best to promote their happiness and comfort during their lifetime,’ and if Miss Foster should survive Mrs. Thomson, the testator gives her an annuity of two thousand dollars for life. “ This is the first provision to which the absolute devise to the trustees is made subject. “Next he gives annuities to his two sisters and his nephew, and absolute legacies to his servants, and these form the second provision, out of the absolute devise. Finally, by the first and second codicils, he desires ‘ his niece, Lottie Foster, to be treated, in law, as if she were really my child;' receiving, during her lifetime, suph income from my estate, as if she were really my child,’ and the operations of the trust are postponed, ‘ so as fully to effect this result, until her decease.’ “ By the second codicil these provisions' are so modified as to give Miss Foster, who is to be considered as his daughter, the right to take ‘ out of the income of the estate all that she requires to make her more than comfortable in her housekeeping during her life,’ and the postponement of the operations of the trust is only to take place so far ‘as may be necessary to secure the above object.’ “ Thus, while the provisions of the will itself in favor of Miss Foster were dependent on Mrs. Thomson’s discretion, the appropriations for her by the codicil are totally independent of any power given to the widow, to whom no reference is even made. “ The words of the devise to the trustees are unequivocal. They are : ‘ I give all my real and personal estate, except household furniture,’ to the trustees nominatim; ‘the income from which shall be devoted to the purposes hereinafter mentioned.’ These words are apt, and clearly expressed. * * * “As to the word ‘proceeds,’ upon which great stress has been laid, it may be taken in its general meaning, to include both capital and income; but this meaning is necessarily subordinate to the general intention of the will, and it is restricted here by the first provision indicating the purposes of the trust. The testator says, ‘ the trustees are to appropriate the remainder of the net income, after the payments above specified,’ i. e., the payments to Mrs. Thomson and the annuitants, or ‘so much of it,’ the income, ‘as may be judiciously applied thereto,’ to the education, &c., of the beneficiaries under the trust. The pi’ecedent payments are thus distinctly referred to the income, and the surplus, still of the income, is to be applied to the purposes of the trust. The capital of the proceeds, given to the trustees absolutely, is not disturbed by any of these appropriations. It is, however, conclusive as to the claim founded upon the use of the word in question, that the power of sale conferred upon the trustees is discretionary, and that until it shall be exercised, there can be no proceeds, whatever meaning may be attributed to the word. The claim, therefore, if valid, would be premature, but it cannot be sustained on other grounds. * * * “ There is also no foundation for the claim that the will gives Mrs. Thomson a life-estate with a power of disposal of the principal of the will. No trace of such a power is to be found in any part of the will. The limited interest she has in the income has been already demonstrated. She can have, as it appears to the auditor, no right to any part of the principal, much less to appoint the whole capital by will. * * * “ To carry out the construction for which the counsel for the ladies contend, would be to enforce artificial rules of law, such as the rule that nothing can be given after a discretionary power of use has been conferred, which often defeat the clearest intentions of a testator. Certainly they should not be extended to a case wrhere such provisions are partial, and where discretionary powers exist which might possibly result in direct conflict.” On behalf of Mrs. Thomson, the following among other exceptions were filed, alleging error:— 1. Because the auditor has decided that Mrs. Thomson, the testator’s widow, does not take the whole personal property under the terms of the will subject to the testator’s debts and legacies, and subject to the'rights of Mrs. Charlotte F. F. Reed. * * * 8. Because the auditor has decided that Mrs. Thomson and Mrs. Reed are not together entitled to the whole personal property of the testator, subject as aforesaid. * * * 9. Because the auditor has awarded the balance of the principal to the trustees under the will, to be held by them for purposes of the charitable trust, and not in any way subject to so much of the proceeds thereof as this exceptant deems necessary for the maintenance of herself and of the testator’s niece, although she has designated that amount in accordance with the terms of the will. After argument upon these exceptions, the court (Hanna, P. J.), in an opinion, inter alia, said: “ In seeking for the intention of the testator, the cardinal principle must be remembered, that it is to be gathered from the entire will, not from detached clauses, sentences, or words, but the whole must be taken together. This is too familiar to need any citation for its support. Upon a careful consideration of the instrument it will first be noticed that testator vests his entire estate, excepting only his ‘ household furniture, books and ornaments,’ in three trustees, and imposes upon them such duties as pertain to an active trust, with ‘ full power to sell any of my property and re-invest the proceeds whenever in their judgment the interest of the trust will be promoted thereby.’ Testator next subjects his estate in the hands of the trustees to the following payments, or, in other words,, declares the following uses and trusts, and first in natural order of the settlement of the estate, to pay the legacies to his household servants, then, out of the income, to pay the annuities to the sisters and nephew of testator, and then so much as his widow may deem necessary for the maintenance of herself and niece, even if her requirements absorb the whole remaining income, leaving none to be applied to the charitable purposes contemplated. “ It was strenuously contended, on behalf of the widow, that she was entitled to the principal and income of the estate, if, in her discretion, the same were necessary to enable herself and niece to live in such style as she ‘ may think best to promote their happiness and comfort during her lifetime,’ the argument being based upon the use by testator of the word ‘ proceeds ’ in the item of the will directing the payment to his wife. Carried to its logical sequence, this view, if correct, would not only destroy the charity for the orphans of railway employees, but also the annuities to the sisters and nephew of the testator. This certainly was never in the mind of testator, and the auditor was correct in holding that the word ‘proceeds’ was employed by him as synonymous with ‘income.’ This is evident from the language used in other portions of the will. In its first clause testator says the ‘income from which,’ i. e., from his real and personal estate, ‘ should be devoted to the purposes hereinafter mentioned.’ Then follows the purposes to which the income is to be applied, and finally the trustees are ‘ to appropriate the remainder of the net income to the maintenance of the charity.’ And in addition it is to be observed that the only absolute bequest to testator’s wife is of his ‘ household furniture, books and ornaments.’ We therefore conclude it is clear that testator vested his estate, real and personal, in the trustees, in trust, to pay, first, out of the income, the legacies; second, the annuities, and the entire remaining income, if required, to his widow, for the support of herself and niece; third, after the death of the widow to pay to testator’s niece an annuity of $2000 for life; fourth, and to apply the remaining income, if any, to the support of the charity. * * * “ Now, construing together the will and codicils, and harmonizing those provisions which appear to be contradictory and inconsistent, we think the intention of the testator is clear, that the trustees are entitled to the corpus of the estate, in trust, to pay so much of the income remaining after the payment of the legacies and annuities, as the widow during her life may consider necessary for the maintenance and support of herself and niece, and the remaining income, if any, to apply to the purposes of the charity contemplated by testator. “ And further, upon the death of the widow, to pay to the niece of testator such portion of the income after payment of the annuities as she may, in her discretion, deem necessary or require to render her more than comfortable in her housekeeping during her lifetime, the surplus income, if any, to be applied to the charitable purposes of the will. While we agree, therefore, with the auditor, that the claim of the widow to be awarded the corpus or principal of the estate cannot be sustained, yet we are of the opinion that testator has conferred upon his wife, and, after her death, upon his niece, an absolute and unfettered discretion, as to the proportion of the income of the estate they will respectively require for their maintenance, and upon the exercise of which the court has no authority to impose any restrictions. This we consider- to have been in the mind of the testator and to form the scheme of his will. “We are, therefore, of the opinion that the balance of the principal of the estate should be awarded to the trustees,, to be held and applied to the uses and purposes of the trusts declared by testator, and that the balance of the income, after the payment of the legacies bequeathed, should also be awarded to the trustees for the payment of the annuities, and to the widow of testator of such sum or sums as she, in her discretion, may require for the maintenance of herself and niece, now Mrs. Charlotte F. F. Reed, the balance of the income, if any, to be expended in support of the charitable trust declared in the will.” The court then dismissed the foregoing exceptions, and recommitted the report to the auditor to report in accordance with the above opinion. The auditor made a supplemental report, to which the appellant filed the following exceptions alleging error:— 1. Because the auditor has decided that Mrs. Thomson, the exceptant, is not entitled to the corpus of the testator’s personalty (but merely to the income thereof), subject to the testator’s debts and legacies, and subject to the rights of Mrs. Charlotte F.-F. Reed. 2. Because the auditor has not decided that Mrs. Thomson and Mrs. Reed are together entitled to the whole of the corpus of testator’s personal estate, subject to debts and legacies, except the legacy to the charity. 3. Because the auditor has not decided that Mrs. Thomson is entitled, to the exclusion of the' charity (but subject to all other legacies and to the testator’s debts), to the whole of testator’s personal property, by the provisions of his will, on demand made by her to that effect, which demand has been made, such right being further limited by the codicils to testator’s will, so as to subject the said personalty to a charge of two-thirds of the net income thereof during Mrs. Reed’s and Mrs. Thomson’s joint lifetime, and to the charge of the whole net income after Mrs. Thomson’s death, during Mrs. Reed’s lifetime, to be paid to the latter, if she requires it, but to no other charge whatever; whereas the auditor has refused to award any part' of the principal of said personalty to this exceptant. 4. Because the testator, by his will, subjected his estate to the payment, first, of so much of the proceeds of all his property (excepting household furniture), as this exceptant might deem necessary for the maintenance of herself and Mrs. Charlotte F. F. Reed, they living in such style as this exceptant might think best' to promote their happiness and comfort during her lifetime. And after providing that the estate should be further charged with the payment of certain legacies, the testator, in his will, further directed that the remainder of the net income of his estate, after the payment above specified, or so much as might be judiciously applied thereto, should be appropriated to a charity. Yet the auditor has decided that under these provisions of the will, the testatrix was not entitled to any portion of the corpus of the personal estate, but only to a portion of the income thereof. The auditor overruled these exceptions and the court sustained this action, and confirmed his report. Mrs. Thomson then took this appeal, alleging that the court erred in dismissing the exceptions both to the first and supplemental reports. Mr. Thomson’s idea was to place the disposal of his whole fortune in the hands of his wife. He intended that as between her and the residuary legatee, the charity, the latter should receive any thing, or nothing, as Mrs. Thomson decided. This was equally true of principal and of income. He desired her to take from his property whatever she thought would make her happy. The testator uses a word, which may be ambiguous, and by the context defines it meaning. He then repeats two lines below, the same word, and the question is, did he use it in the same signification ? The rule is that where words in a will are defined by the context, and then repeated in a position which by itself would leave it in doubt which of two meanings is to be applied, that is chosen which the testator has given to the same words in a different part of his will. “ This principle of construction was adopted and applied in Seibert v. Butz, 9 Watts 490, and indeed is so reasonable that it needs no citation to sustain it.” Per Sharswood, J., in Ingersoll’s Appeal, 5 Norris 240; and that case was decided on that ground. It is no avoidance of the difficulty to show that other parts of the will become inoperative by giving to the testator’s language his own and its natural meaning. We admit that. ? It is quite plain that the testator intended to give his widow an unlimited discretion to dispose of his residuary estate, and what she did not dispose of he intended should go elsewhere. Possibly he could make such a disposition. Mrs. Thomson’s estate would be a power, which, if unexercised, would leave the bequest over valid. But she does use her power. She claims the whole property. A claim of a legatee’s rights in court is equivalent to a requisition upon trustees for the full amount to which the legatee may he held to be entitled : Irwin v. Earrer, 19 Yes. 86. Such an intention as is here claimed to vest in Mrs. Thomson the principal of the entire estate, is inconsistent with, and contradictory to, all the other parts of the will and the codicils thereto. 1. It is inconsistent with the direction to the trustees to make the other four payments referred to — namely, an annuity to each of the testator’s two sisters, an annuity to his nephew, a bequest in favor of his' nephew’s wife, and certain payments to his household servants; for if he has given to his wife the whole of the estate, out of what fund can the trustees make these payments ? 2. An intention to give to Mrs. Thomson the whole of his estate is inconsistent with and contradictory to the first codicil to the will, wherein the testator desires his niece to receive during her life such income from Jiis estate as if she were really his child, and also contradictory to the second codicil, wherein he desires that his niece shall take out of the income of his estate all that she requires to render her more than comfortable in her housekeeping during her lifetime. If he intended that his wife should have all, from what fund could his niece have obtained her portion ? 3. Such a disposition of the estate as is here contended for would render impossible of execution the trust for which the trustees were chiefly appointed — namely, the founding and conducting of a charitable institution, on a plan which the testator sets out at length in his will with so much particularity. 4. The power of sale given by the will to the trustees can be exercised by them only, and at their discretion. The proceeds, should any arise, are directed by the testator to be re-invested by the trustees, and thus these proceeds are not in any way to be under the control of his wife. 5. The testator, after directing “proceeds” to be paid by the trustees to his wife for the maintenance of herself and niece “ during her lifetime,” gives certain personal property to her, thus, “to my wife, Lavinia F. Thomson, I give absolutely all my household furniture, books and ornaments,” showing clearly an intention to distinguish the bequest for her maintenance during life, and the bequest of such things as he desired that she should have absolutely in her own right.
89 Pa. 47Sheets v. Allen (1879)
The principles which govern mining leases, that actual possession of the tenants carrying on the mining operations, is notice of his interest to a third person, as fully as is the tenancy of a dwelling-house, and that if the lease is for a term not exceeding three years, it is valid, though not in writing, apply to a lease of land with right to quarry minerals or dig clay.
89 Pa. 51D'Arros's Appeal (1879)
No. 61. Appeal of Marie D’Arros, from the decree of the court confirming the adjudication upon the account of the executor of the estate of Marquerite Cremers, deceased. The decedent died March 28th 1874, leaving a will bearing date the day of her death. She left surviving, her husband, Oalixte Cremers, but no issue.
89 Pa. 54James's Appeal (1879)
Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 30. In equity. Bill in’ equity filed by B. W. Harper, administrator of the estate of John P. Bankson, deceased, against William A. James, trading as James & Co. The facts, as reported by the master, were in substance these: Bankson was in the habit of borrowing money through James, who was a broker. Bankson gave his notes to the lenders, and delivered to James certain whiskey as collateral security therefor. The notes provided that in case they were not paid at maturity, the lenders might sell the whiskey and apply the proceeds to the payment of the notes. In September 1876, Bankson, through James & Co., obtained two loans from one Poultney, which were secured, as above stated, by a pledge of the whiskey, the quantity of which at this time was ’more than sufficient to satisfy all claims against it. Shortly thereafter Bankson borrowed from James & Co. on their own account about $1800, for which there was no specific collateral pledged. Bankson died insolvent in December 1876, and the plaintiff was appointed his administrator. With his consent, James sold the whiskey and applied the proceeds to the payment of the notes of Bankson, reserving therefrom $1800 for the payment of his own loan, and claiming a commission. The bill filed by the administrator prayed for discovery, an injunction to restrain the defendant from selling the collateral until an account was stated and general relief. The defendant answered that he had sold the whiskey at the instance of plaintiff, and had rendered him an account thereof, which was approved by plaintiff, and that defendant had no other collateral. The plaintiff filed a general replication, and the case was referred to an examiner and master, who found the facts, in substance, as above, and further that there was no agreement between the parties to sell the collateral for any general account, but that plaintiff was'willing that defendant should sell the collateral and apply the proceeds to the payment of the sum of money due and specifically secured by the same. The collateral notes or bills of sale stated specifically whát the proceeds of collateral sold under this power should be applied to. Neither the due-bill nor check of James & Co. were included as indebtedness to be paid as set forth in the collateral notes or bills of sale. The master was, therefore, of opinion that the defendant had no right to retain and keep out of the proceeds of the sale of the col-laterals the amount of the due bill and the check which constituted the amount of Bankson’s indebtedness of $1800 to James & Co. personally. The master further found as a fact that there was not sufficient testimony to establish a custom authorizing a note and bill broker to retain out of the sales of collaterals, held as security for notes discounted by him, a commission for himself of 2§- per cent., and therefore reported that the defendant had no authority to retain the amount charged by him as commissions. The defendant excepted, and his exceptions having been dismissed by the court, and the master’s report confirmed, he took this appeal. The circumstances here raised the presumption that the new loan was made upon the credit of the pledge, and was so understood by the parties. He who seeks equity must do equity, and the plaintiff seeking the-assistance of the court, ought to pay all the moneys due to the creditor, as it is natural to presume that the pledgee would not have lent the new sum, hut upon the credit of the pledge which he had in his hands before: 1 Story Eq., sect. 1034; Anon., 2 Vern. 176; Baxter v. Manning, 1 Id. 244; Dennisbray v. Metcalfe, 2 Id. .698. James acted in the double capacity of a broker and commission-man, and was entitled to compensation in both capacities. The appellee contends that where one lends money specifically on a certain pledge, and afterwards advances further sums, the presumption is that these latter advances are made on the faith of the pledge given for the former ones, and that equity will not enforce the- return of the pledge because of the payment of the first loan, until the pledgor do equity by paying also the other loans. This proposition is certainly a doubtful one ; but whether sound or not, can have no application in this case, because Poultney and not James had made the former loans, and had the custody of the collateral.
89 Pa. 58Breuckmann v. Twibill (1879)
1, of Philadelphia county: Of January Term. 1879, No. 70. Covenant on a lease by George A. Twibill against Reinhard Breuckmann, to recover two months’ rent of a dwelling-house, and a gas bill. Twibill leased the premises in question to defendant for one year from August 1st 1873, at $25 per month. The lease contained a condition that the tenant should pay for all the gas consumed on the premises.
89 Pa. 59Pennsylvania Railroad v. Werner (1879)
1. If a man has got himself, without negligence, into a position of danger, he is not responsible if he makes a mistake of judgment in getting out. A man placed under such circumstances, if he uses his judgment honestly, is not responsible, although he might have done better, if he had acted differently. 2. When points submitted to a court assume certain facts, and conclusions of law are drawn therefrom, which would be correct if the facts were as assumed, it is proper for the court to affirm such points with the qualification, “if the jury find the facts as assumed."
89 Pa. 67Wright's Appeal (1879)
60. Appeal of George Wright from the decree of the court upon the adjudication, by Penrose, J., of the executors’ first account in the matter of the estate of Isaac K. Wright, deceased. The material facts will be found in the opinion of this court.
89 Pa. 71Philadelphia & Reading Railroad v. Ervin (1879)
Error to the Court of Common Pleas, • No. 1, of Philadelphia county: Of January Term 1878; No. 250. Case by James Ervin against the Philadelphia' and Reading Railroad Company. The narr. contained three counts. The first alleged that .the defendant had two wharves upon the Delaware river, and had made a passage-way along the river edge between said wharves, and that it had erected on said wharves a cap-log; that the plaintiff was a porter, having a'horse.and cart, which, at the time of alleged grievance, was being used by Min upon said wharves ; that defendant wrongfully removed sniff cap-log'without notifying the plaintiff, and that plaintiff and Ms servants being wholly ignorant ofsueh removal, the horse and cart fell into the river and were lost. The second count alleged that it was the duty of. the defendant, under an ordinance of councils, to place upon every side of said wharves and passage-way a cap-log eight inches high ; but that defendant wilfully refused and neglected to do so, by reason whereof the said plaintiff and his servants, being wholly ignorant of such neglect, said horse and cart fell into the river and were lost. The third count alleged that defendant refused and neglected to keep said wharves and passage-way in good and safe order and condition, by reason Avhereof, &c. The defendant pleaded “Not Guilty.” At the trial before Pierce, J., it appeared that plaintiff, who Avas the driver of a coal cart, in the course of his business, which consisted to a large extent of selling coal of the defendant, drove his cart upon the pier of defendant, which was not provided with a cap-log, and that from some unexplained cause the horse began to back, and notwithstanding the exertions of plaintiff, backed over the pier and was drowned. Several Avitnesses on behalf of plaintiff Avere asked the folloAving questions : “ From your knowledge of the locality can you say Avhether or not it was a dangerous one to persons Avith horses and carts engaged in hauling coal, and if so, for Avhat cause ?” The Avitnesses answered that it was, and the admission of this evidence constituted the first assignment of error. The second assignment Avas the admission in evidence of an ordinance of councils of the city of Philadelphia of April 16th 1857, which made the following provisions : “ That it shall be the duty of every OAvner, or agent of such owner of any wharf upon the river DelaAvare or the river Schuylkill, within the city of Philadelphia, to place, or cause to be placed, on every side of such wharf Avhich shall be next the river or dock, a cap-log, Avhich shall be at least eight inches in height from the level of such Avharf, and scalloped or pierced on the loAver side thereof so as to allow the water to run off from the wharf. “ That if any owner or agent shall refuse or neglect to place such log as aforesaid * * * after notice to such owner or agent, he or they shall forfeit or pay the sum of $50, to be recovered as debts of like amount are by laAv recoverable. ’ ’ The third assignment was the refusal of the court to allow the defendants to prove the nature of the business carried on upon the pier, and that placing cap-logs thereon would materially interfere with the loading of vessels. In the general charge the court, inter alia, said, “ It is a question for you, under all the circumstances, whether the plaintiff in any manner contributed by his own negligence to this accident. [It is for you also to consider, if the place where he took the horse was dangerous, whether it was negligence to take it there.]” The portion of this charge in brackets was the fifth assignment. The court reserved the following points: 1. Whether or not the ordinance of April 16th 1857, in regard to cap-logs, was intended to apply to public" wharves only, and whether or not it has reference to private wharves upon enclosed property, such as the Reading coal wharves at Richmond. 2. Whether the city of Philadelphia had any authority to apply or enforce such an ordinance with reference to the private wharf property of the defendant. 3. Whether the defendant, as the owner of the coal wharves, was bound to provide the heads of the docks adjoining its wharves with cap-logs, and whether its omission so to do was negligence or evidence of negligence. The verdict was for the plaintiff for $300, and the court after-wards i entered judgment on the verdict, when defendant took this writ, among its assignments of error being those above noted, and the refusal of the court to enter judgment for defendant non obstante veredicto on the above reserved points. The ordinance should not have been admitted. An action for damages will not lie against a person for the neglect of a statutory duty merely because it is shown that damages have arisen from its non-performance: Atkinson v. New Castle Waterworks Co., 2 Law Rep. Exch. Div. 441; . Couch v. Steel, 3 E. & B. 402; Stevens v. Jeacocke, 11 A. & E. (N. S.) 731; General Steam Nav. Co. v. Morrison, 13 O..B. 581; Kirby v. Boylston Market Association, 14 Gray 249; Flynn v. Canton Co., 40 Md. 312; Vandyke v. Cincinnati, 1 Disney 532; Chambers v. Ohio Life and Trust Co., 1 Id. 327. There is no power to annex civil liability to the violation of an ordinance: Heeney v. Sprague, 11 R. 1.456 ; Phillips v. Allen, 5 Wright 481; Butler’s Appeal, 23 P. F. Smith 448. The defendant should have been permitted to show the nature of the business for which the pier was used, for it was not bound to put it in a condition which would unfit it for that purpose. . — Of the three counts of the declaration only one is upon'the ordinance ; the action is for negligence at common law and the remedy under the ordinance is but cumulative. The plaintiff claimed not the penalty given by the ordinance, but his damages suffered. Where a statute gives a right not theretofore existing (as was the case in all the authorities cited by plaintiff in error), the remedy given by the statute is exclusive : but where a statute commands or prohibits that which the common law had already commanded or prohibited, the statutory remedy is an additional one: Wheaton v. Hibbard, 20 Johns. 292; Lane v. Salter, 51 N Y. (6 Sick.) 7; Richardson v. McDougall, 11 Wend. 47; Porter v. Mount, 41 Barb. 564; Dygert v. Schenck, 23 Wend. 451. See Washington Road v. State, 19 Md. 287; Litchfield v. Simpson, 8 Q. B. 74; Collinson v. Newcastle Railway Co., 1 C. & K. 546. The defendant was guilty of negligence in not hawing cap-logs on its wharf: Brown v. Lynn, 7 Casey 510 ; Swords v. Edgar, 59 N. Y. 31; Holmes v. N. E. Railway Co., Law Rep. 4 Exch. 257 ; White v. France, Law Rep. 2 O. P. Div. 310; Tobin v. Portland Railroad Co., 59 Me. 183; Freer v. Cameron, 4 Rich. 229 ; Wendell v. Baxter, 12 Gray 496; Carleton v. Franconia Co., 99 Mass. 216. It is not always necessary for the witness to be an expert to enable him to give his opinion as to a matter depending upon his special practical knowledge if he states the facts upon which he bases his opinion : Beatty v. Gilmore, 4 Harris 466 ; Dunham’s Appeal, 27 Conn. 192.
89 Pa. 77Asay v. Hay (1879)
4, of Philadelphia county: Of duly Term 1878, No. 16. Assumpsit by Alexander Hay against A. Merritt Asay, on a promissory note, drawn by defendant to the order of A. M. Stout, and by the latter endorsed to plaintiff. At the trial, before Elcock, J., the plaintiff gave the note in evidence, and proved the consideration for the endorsement by Stout and rested. The endorsement was proved by Dr. Thomas Hay.
89 Pa. 78Braman's Appeal (1879)
54. Appeal of George G. Braman from the decree of the court dismissing. his exceptions and confirming the adjudication in the account of Samuel White, executor and trustee of the will of Letitia G. Ryan, deceased.
89 Pa. 85Brice's Appeal (1879)
Pleas, No. 8, of Philadelphia county: Of July Term 1878, No. 81. . The proceedings in the court below commenced by petition of Robert N. Bowers, one of the' building inspectors of the city of Philadelphia, praying for an injunction against Conrad Bachle and William Brice.
89 Pa. 89Fareira v. Gabell (1879)
Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 64. Assumpsit by John Fareira against George T. Gabell on five promissory notes drawn by Gabell to the order of plaintiff. At the trial defendant gave evidence to show that he employed plaintiff to operate in stocks for him; that'the contracts made through the agency of plaintiff were simply wagering contracts; that the transactions covered about two years; that in 1875, defendant gave three of the notes in suit, amounting to $7000, as “margins on stock contracts,” and two months thereafter the other two notes in suit, amounting to $5000, which was for an indebtedness then appearing to be due. In rebuttal, the plaintiff gave evidence that in November 1875, upon a settlement the defendant admitted there was due plaintiff the sum of $14,794.67; that the defendant not having fulfilled his stock contracts, plaintiff had, with defendant’s assent, advanced the money to cover his losses ; that in some instances the stock was delivered to the purchasers, and in some it was not. The court, Hare, P. J., in charging the jury said “Was this a gambling or wagering operation which the law does not sanction, and will not carry into effect ? Now, a wager may be defined as a contract in which the parties stipulate that they shall gain or lose upon the happening of an uncertain event, in which they have no interest except that arising from the possibility of such gain or loss. “ This' may be illustrated by an ex&mple : “ A. and B. agree, in consideration of a premium paid by B., that if a certain ship is lost at sea, A. shall pay B. the value of the ship. If B. has no interest in the ship, it is a wagering contract, but if B. has an interest, and will be loser if the ship is wrecked, it is a contract of indemnity and not a wager. So, if two men agree that if coffee rises in price, one of them shall pay a sum of money to the other, it is a wager, if they have no other interest in the coffee than that growing out of the contingency about which they stipulate. But it does not follow that every contract which produces such a result is a wager; the question is one of intention, as deduced from the facts and circumstances. “. Let us suppose that A. agrees with B. to buy a thousand bushels of wheat, at $2 per bushel, to be delivered and paid for at the end of thirty days. If wheat rises in value, A. will be a gainer, and if it goes lower he will lose; but inasmuch as the apparent object of the contract is an actual purchase of the wheat, it is not a gaming contract. Nor could such a contract be justly regarded as a wager, although when the time for the delivery of the wheat arrived, it was agreed that B. should, instead of forwarding the wheat to A., pay him the damages to which he would be legally entitled for a refusal to deliver; that is to say, the difference between the stipulated price and the actual value of the wheat at the time fixed for the fulfilment of the contract. Such a settlement of the difference would not, if there was nothing more, be a sufficient ground for inferring that the contract was a gambling contract, or contrary to law. But the case would be materially different if the evidence, taken as a whole, showed that A. and B. did not really intend to buy and sell; that there was no intention on the one hand to deliver, or on the other to receive, the wheat, and that their real purpose was to make a wager in the form of a contract of sale. Hence, if A. and B. were to deal with each other in the way supposed, during a series of months or years, and it appeared in evidence that B. did not, in any single instance, forward the wheat, or have it in readiness for delivery, and that when the time arrived for the fulfilment of these successive contracts, they were always settled by the payment of a sum of money answering to the rise and fall in price, the question would then be one of fact for.the jury, whether the .parties really intended to buy and sell, or to make a wager on the price of grain. v “A like question arises for the consideration of the jury in this case — that is to say, whether the intention was that the defendant should become an actual buyer and vendor of stocks through the agency of the plaintiff, or whether the plaintiff expressly or impliedly agreed to act as the defendant’s agent in gambling sales and purchases of stocks, which the defendant had not the means to deliver, and which it was no part of his intention to receive. If the jury find that the transaction was a gambling one on Gabell’s part, and known to be such by Fareira, and that the services and advances Avhich constitute the cause of action were made and rendered in carrying it into effect, their verdict should be for the defendant; and it does not necessarily vary the legal aspect of the case, that some, or the greater number of the persons with whom Fareira dealt, on Gabell’s account, wrere actual buyers and sellers, and did not intend to gamble; although, if such be the fact, it may be taken into view by the jury in determining the true nature of the contract as between Gabell and Fareira. “It is, however, contended, by the plaintiff’s counsel, that even if these were gambling operations on Gabell’s part, and so understood by Fareira, he should still, in equity and good faith, be paid for the services which he rendered as Gabell’s agent, and Gabell cannot rely on a fault which was common to both as a defence; and it is said in support of this proposition,- that one who lends money, knowing that the borrower intends to gamble with it, may recover it back. This may, perhaps, be true as between such a borrower and lender, but I am clearly of opinion that one who should undertake to make a bet or wager for another, and advance the money staked would have no right of action against his principal in the event of loss; and I can see no difference between such a case and that of an agent who renders services and expends money in conducting any other gambling operation.” The plaintiff excepted to this charge “ because, although the jury should believe that the plaintiff had no interest in said stock contracts other than that of his commissions as a broker, yet the said charge was equivalent to a binding instruction for defendant.” The verdict was for defendant. Plaintiff took this writ and assigned the above charge for error. If the plaintiff can make out his case irrespective of the prohibited subject he can recover, and the defendant cannot set up a prior invalid consideration to defeat him. To prevent a recovery the very contract sued on must be void or illegal. The notes themselves, when in evidence, were sufficient to warrant a recovery: Eaikney v. Reynous, 4 Burr. 2069 ; Petrie et al. v. Hannay, 8 Term R. 418; Tenant v. Elliott, 1 Bos. & Pul. 3; Farmer v. Russell, Id. 297; Buhners, Ex parte, 13 Yesey 315; Montefiori v. Montefiori, 1 Wm. Black. R. 362; Osborn v. Moss, 7 Johns. 161; Biddis v. James, 6 Binn. 329; Swan v. Scott, 11 S. & R. 155; Fairbanks v. Blackington, 5 Pick. 93; Bredin v. Kingland, 4 Watts 420 ; Armsti-ong v. Toler, 11 Wheat. 258; Tel-ford v. Adams, 6 Watts 433; Lestaspies v. Ingraham, 5 Barr 81; Thomas v. Brady, 10 Id. 169 ; Fox v. Cash, 1 Jones 207 ; Eyrick v. Hetrick, 1 Harris 488; Scott v. Duffy, 2 Id. 20; Ex parte Pyke, Law Rep. 8 Ch. Div. 754 : Smith v. Bouvier, 20 P. F. Smith 325. This ease falls within that class of actions which the court has decided to be “ wagering contracts, ’ ’ and the process of the law cannot be invoked to enforce it. The propositions advanced by plaintiff in error are well considered in the case of Ham v. Smith, 6 Norris 63.
89 Pa. 93Knorr's Appeal (1879)
120. Appeal of George T. Knorr from the decree of the court confirming the report of the auditor in the matter of the account of Susan Knorr, administratrix of the estate of George Knorr, deceased. The facts are stated in the opinion of this court.
89 Pa. 97Kerr's Appeal (1879)
Appeal of Alexander Kerr and others from the decree of the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 131. In equity. This was a bill in equity filed by John Neely, Joseph McKendrick and Alexander Kerr, elders, and James A. McLaughlin, Alexander Colville, James Colville, Alex. McGarry, Henry McNeill, Alexander Kerr and Robert J. Neely, trustees of “ The Second Reformed Presbytei’ian Congregation,” in the county of Philadelphia, district of Spring Garden, plaintiffs, against William Sterrett, John Kemps, Thomas Carrick, Edward Y. Reid, Samuel D. Jordan, William J. McBride, Andrew Fleming, James Caldwell and William Caldwell, defendants. The following is an abstract of the proceedings: The bill alleges that the plaintiffs sue in their own behalf, as well as in behalf of The Second Reformed Presbyterian Congregation, in the county of Philadelphia, district of Spring Garden, and those members of the congregation who with plaintiffs “ adhere to the charter of said corporation, and who maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America,” and are in subordination to the authority and acknowledge the jurisdiction of the General Synod of said church. That said Second Reformed Presbyterian Congregation is a corporation duly organized under the Act of Assembly of Pennsylvania, approved April 6th 1791. A copy of the charter is annexed to the bill, and certain provisions thereof are set forth in the body of the bill, inter alia: 2. “ That the subscribers and such others being citizens of this Commonwealth as shall hereafter become members of the said congregation, and who adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America shall be a corporation,” &c. 4. That the “Board of Trustees shall consist of seven members, who shall be recognised by the Session of this congregation as being in full communion with the church.” 5. That the annual election for trustees shall be “ on the first Monday of every year, of which notice shall be given two weeks previous from the pulpit. The election shall be by ballot, in the church.” That said corporation is the owner of valuable property, including a lot of ground with the church building thereon erected, on the west side of Twenty-second street, in the late district of Spring Garden, now Fifteenth Ward in the city of Philadelphia. That said Second Reformed Presbyterian Congregation is “ a constituent part of the religious association known as 1 The Reformed Presbyterian Church in North America,’ and that' said association is governed by the body known as ‘ The General Synod of the Reformed Presbyterian Church in North America,’ and by Presbyteries constituted by said Synod, and subordinate thereto, and that said Synod (which is the body mentioned in article 2 of the charter) is the highest authority, and also the supreme judicatory of said association, having appellate jurisdiction in all cases, and original jurisdiction in such cases as it sees fit to assume over the members of said association, and to the authority of which Synod, every person, as a condition of becoming a member of said association, vows subordination.” That said Second Reformed Presbyterian Congregation was attached to and formed part of the Reformed Presbytery of Philadelphia, by some called the First Reformed Presbytery of Philadelphia. That June 12th 1868, said Presbytery, consisting of sundry ministers and ruling elders named, including Rev. Dr. William Sterrett, one of the defendants, and Ruling Elder Alexander Kerr, one of the plaintiffs, met at the First Reformed Presbyterian Church, Philadelphia, and passed a series of resolutions (Alexander Kerr alone dissenting and objecting thereto), “in violation of all order and discipline of the church, and in violation of the vows taken by the ministers and elders of said Presbytery, ‘which required that they should submit to the authority of the Synod of the Reformed Presbyterian Church in North America, and promise subjection to the superior judicatories of this church,’ ” and “then suspended their relations and seceded from the control of the said Synod of the Reformed Presbyterian Church in North America, to which they were bound to be in subordination, and to which they owed obedience and allegiance as aforesaid.” That at said meeting of Presbytery, the Second Reformed Presbyterian Church wras represented by said Rev. Dr. Sterrett, “ as ministerial member,” and by said Alexander Kerr, “as ruling elder;” that said Rev. Dr. Sterrett approved of said resolutions, but Mr. Kerr voted against them, his dissent being entered at his request on the records of Presbytery; that the action of Dr. Sterrett and the resolutions of Presbytery were affirmed and ratified by the defendants and by the congregation of the Second Reformed Presbyterian Church, worshipping in the church building on Twenty-second street, but were disapproved of by the majority of Session (of plaintiffs herein), who sustained Mr. Kerr and approved of his action at Presbytery. That since June 12th 1868, said Presbytery has sent no delegate to the General Synod of said Reformed Presbyterian Church in North America, “ has taken no steps towards resuming its connection therewith, nor in any way acknowledged its ‘ subordination’ thereto, but on the contrary, has denied its authority, and acted in every way independently of it.” That the annual meeting of said General Synod was held at Cedarville, Ohio, in May 1869, at which meeting a petition (set out verbatim in the bill), and purporting to be from “ members of the Second Reformed Congregation of Philadelphia,” was presented and referred to a special committee; the petitioners representing that they had'“ declined to recognise the authority and jurisdiction of the Reformed Presbytery of Philadelphia, by reason of their action,” at the meeting of June 12th 1868, “in suspending relations to General Synod;” that they desired to maintain their “relations and be in subordination to the Supreme Judicatory in the Lord,” and asking the “counsel and advice” of Synod, and appointing Alexander Colville (one of the plaintiffs), as their commissioner to present the petition to Synod; the petition purports to be signed by all the plaintiffs (except Alexander and James Col-ville) and by fifty-one others; that the special committee presented a report embodying a preamble- and resolutions (set forth in extenso in the bill), which was adopted; the substance of the resolutions being that petitioners with others — officers and members of the congregation — who might unite with them, were declared to be “ The Second Reformed Presbyterian Congregation of Philadelphia,” and directed to place themselves under the care of the Presbytery then represented in Synod by Rev. Drs. Crawford, Steele and others; and that said Presbytery, known as the Second Reformed Presbytery, be thenceforward designated as the Reformed Presbytery of Philadelphia. That plaintiffs and the other signers of said petition, with other officers and members of said congregation, December 7th 1869, presented a petition (set forth verbatim-in the bill) to the said Reformed Presbytery of Philadelphia, for admission under their care, as directed by General Synod. This petition purports to be signed by all the plaintiffs and fifty-five others; that Presbytery granted the petition, appointed Dr. Crawford to moderate in the Session, and invited Mr. Kerr to a seat in Presbytery. That plaintiffs have since maintained their organization and connection with said Presbytery and General Synod, and are recognised by said Presbytery and Synod as “The Second Reformed Presbyterian Congregation in due subordination to the Synod of the Reformed Presbyterian Church in North America, and as adhering to and maintaining the religious principles declared and exhibited by said Synod.” That in accordance with the charter due notice of the annual elections for a board of trustees for said congregation to serve for the years 1870, 1871 and 1872 “ were given from the pulpit of the church in which said congregation worshipped, and the annual elections regularly and legally held” on the first Mondays of 1870, 1871 and 1872; that in consequence of defendants holding posses-ion of the church building on Twenty-second street, and refusing to give plaintiffs possession of the same, said annual elections for trustees were held in Milton Hall, Coates street,, where the congregation has been worshipping; and that at the election on first Monday of 1872 the plaintiffs named as trustees were duly elected trustees of said congregation for 1872, and have been duly recognised by the Session in accordance with the charter, as “being in full communion with the church.” That defendants have voluntarily withdrawn from the Reformed Presbyterian Church in North America, and the jurisdiction of its Synod, and do not “adhere to or maintain the religious principles declared and exhibited” by said Synod; as evidence of which the bill alleges that the defendants have broken a fundamental law of the church, “in this that said Synod did, June'5th 1843, declare and exhibit as a part of its religious principles to which every member of the church and of the Board of Trustees must subscribe, certain terms of Ecclesiastical Communion, Article YI. of which terms (Book of Discipline, p. 32), is in the following words: ‘ A practical adorning of the doctrine of God our Saviour by a life and conversation becoming the Gospel, together with due subordination in the Lord to the authority of the Synod of the Reformed Presbyterian Church in North America:’ ” and the defendants “refuse all subordination to said Synod,” and openly declare'their independence of it, and by resolution of their Presbytery of June 12th 1868, ratified and approved by them, “decline to recognise or submit to its action.” That by reason of the premises, defendants and those associated with them have ceased to be members of said Second Reformed Presbyterian Congregation. That defendants have obtained and hold possession of the church building on Twenty-second street, with the furniture and other property of said Second Reformed Congregation, and refuse to deliver the same “ to the duly elected trustees of said congregation.” That defendant Sterrett unlawfully exercises the functions of minister in said church building, and defendants Kemps and.Car-rick unlawfully exercise the functions of elders therein, whereby plaintiffs are prevented from worshipping therein, “ and the said buildings are diverted from their proper uses.” That defendants will, unless restrained by the court, appropriate the property of said Second Reformed Presbyterian Congregation in their possession to the use of a religious body which does not “ adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America,” referring for evidence thereoPto the facts set forth in the bill. Prayers of the bill. That defendants may answer: That plaintiffs, with the congregation worshipping with them, be declared to be the Second Reformed Presbyterian Congregation in the county of Philadelphia, district of Spring Garden. That defendant Sterrett be enjoined from exercising the functions of minister in said church building. And defendants Kemps and Carrick from exercising the functions of elders therein. And the other defendants (and including also Carrick), be restrained from exercising the functions of trustees of said congregation, and from using the alleged seal of the corporation, or issuing any promissory notes or certificates of indebtedness thereof, or creating any lien, mortgage or encumbrance upon the real estate, or in any wise dealing or interfering with the property of the corporation. That defendants deliver the property of said congregation in their possession to the plaintiffs named as trustees, or their successors. General relief. The answer admits the incorporation alleged in the bill, and that the charter is correctly set forth in the copy annexed thereto ; that the corporation is owner of valuable property, including the real estate described in the bill; that the Second Reformed Congregation always has been and still is a constituent part of the Reformed Presbyterian Church in North America, and was attached to and was part of the Reformed Presbytery of Philadelphia, by some called the First Reformed Presbytery of Philadelphia; that the Reformed Presbytery of Philadelphia met June 12th 1868, as alleged; that Dr. Sterrett approved of the resolutions then adopted, and that Mr. Kerr represented the congregation therein and voted against the resolution, and his dissent was entered on the records of Presbytery; that since June 12th 1868, said Presbytery has sent no delegate to General Synod; that said General Synod met at Oedarville, Ohio, in May 1869, and that the petition was presented and action had thereon as alleged; that the plaintiffs named as trustees were elected by plaintiffs and their adherents, at Milton Hall; that Synod did declare and exhibit as a part of its religious principles, the terms of Ecclesiastical Communion, the 6th article of which is set forth in the bill. The answer further admits qualifiedly as follows:— That the Reformed Presbyterian Church in North America is' “ under the laws and constitutions set forth in the books and documents referred to in the first paragraph of the answer, governed by the General Synod of said church, by Presbyteries ‘ duly ’ subordinate thereto, and by Sessions of congregations.” That said Synod is the “chief legislative” authority, and also the supreme judicature of the denomination. That persons as a condition of becoming members of said denomination, owe “due subordination in the Lord to the authority of said Synod.” That defendants (except Dr. Sterrett and Kemps) have “as the lawfully elected trustees of the said corporation,” possession of the church building and other corporate property, and that they refuse to deliver the same to such of the plaintiffs “ as wrongfully claim to be trustees ” thereof. The answer denies: That the General Synod has appellate jurisdiction in all cases, or that it has original jurisdiction in such cases as it sees fit to assume in it over members of said denomination, or that it has any power or jurisdiction other than is expressly conferred upon it by the laws and constitutions above referred to. That the Reformed Presbytery of Philadelphia did at the meeting convened June 12th 1868, or at any other time, pass any resolution or resolutions in violation of the order and discipline of the church, or of the vows taken by the ministers and elders of said Presbytery, or which were of the tenor and effect stated in the bill; and that the ministers and elders of said Presbytery have ever taken vows which required that they should submit to the authority of the Synod of the Reformed Presbyterian Church in North America, or have ever promised, or agreed to promise “ subjection to the superior judicatories of this church,” or were ever bound to be in subordination, or owed obedience and allegiance to the Synod in the manner and to the extent alleged in the bill. That' the Session has ever expressed its approval or disapproval of the resolutions adopted by Presbytery, June 12th 1868. That defendants have any knowledge of the facts alleged as to the petition by plaintiffs and others to Presbytery, December 9th 1869. . That plaintiffs have under the direction of the General Synod been duly received under the care of the Reformed Presbytery of Philadelphia, have thence hitherto maintained their organization and their connection with said Presbytery and General Synod, and are recognised by said Presbytery and Synod as the Second Reformed Presbyterian Congregation, in due subordination to the Synod of the Reformed Presbyterian Church in North America, and as adhering to and maintaining the religious principles declared and exhibited by said Synod. That the persons named in the bill are trustees of said congregation, duly elected on the first Monday of 1872, and that plaintiffs and their adherents constitute “ The Second Reformed Presbyterian Congregation in the county of Philadelphia, district of Spring Garden.” That the “so-called election,” held at Milton Hall, confers on the'persons thereby chosen, any title to the office of trustees of said corporation, because: Notice was not given from the pulpit of the church in Twenty-second street. Said alleged election was not held in said church. The electors were not then members of the corporation. The persons alleged to have been elected thereat, have not been, and are not recognised by the Session as being in full communion with the church; and were not then, and are not members of the corporation. That plaintiffs, or their adherents, or any one for them, ever demanded possession of said church building for the purpose of holding an election therein. " ■ That defendants have withdrawn from the Reformed Presbyterian Church in North America, and from the jurisdiction of said Synod. That defendants and those associated with them, have ceased to be members of “ The Second Reformed Presbyterian Congregation.” That defendant, Dr. Sterrett, unlawfully exercises the functions of pastor of said congregation; and that defendants, Kemps and Carrick, unlawfully exercise the functions of elders within said church building. That plaintiffs, or any of them, save by their own voluntary secession, have ever been prevented from worshipping or attending corporate meetings in said church buildings; or that said buildings are, or have ever been diverted from their proper uses. That plaintiffs are officers or members of said corporation, or have any right of property.in said church buildings. That defendants intend to, or will appropriate the property of said congregation to the use of a religious body which does not adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod in North America. The answer distinctly avers : That “ The Second Reformed Presbyterian Congregation in the county of Philadelphia, district of Spring Garden,” was organized about 1836 as a constituent part of the Reformed Presbyterian Church in North America, whose system of religious principles and the respective powers and jurisdiction of whose several judicatories are set forth in sundry books named, and which are referred to and made part of the answer. That the only vows or promises taken or made by the ministers or elders of the Reformed Presbytery of Philadelphia were in their subscription to the “ Terms of Communion” adopted in 1807 by the Reformed Presbytery of North America (then the supreme judicatory of the denomination), and in their ordination vows (prescribed at the same time); by the former they bound themselves to u due subordination in the Lord to the authority of the Synod,” and by the latter they promised “subjection * * * to the superior judicatories of this church in the Lord.” That the General Synod at Pittsburgh, in May 1868, took certain action, particularly set forth in exhibit A of the answer, in view of which “ the Reformed Presbytery of Philadelphia,” with which the Second Reformed Presbyterian Congregation has from its organization been, and still is connected, on June 12th 1868, adopted the preambles and resolutions, a copy of which is annexed to the answer. That May 17th 1869, said Presbytery adopted a memorial and resolutions, a copy of which is also annexed to the answer, and which with accompanying papers, a commissioner appointed by Presbytery, delivered to the General Synod, then in session at Cedarville, Ohio, May 20th 1869, and Synod after the reception of the memorial, &c., made the enactment set forth in the bill. That Rev. Dr. Sterrett’s right to membership in Presbytery was dependent solely upon his status as a minister, and that the congregation was “represented” in Presbytery, as are all congregations in the Reformed Presbyterian Church, only by its delegate from its ruling elders. That the congregational approval of the resolutions of Presbytery of June 12th 1868, was expressed by the adoption at a special meeting, held April 22d 1869, after due notice of the preamble and resolution set forth verbatim in the bill; and that plaintiffs were present at that meeting, and no one of them voted against the preamble and resolution; and that until some time in October 1869, plaintiffs continued to attend the religious services of the congregation and participated in all its corporate acts. That General Synod at Cedarville, Ohio, May 20th 1869, wrongfully declared the officers and members of said Presbytery to be without the jurisdiction of said Synod, and thereby prevented Presbytery from thereafter sending delegates to Synod. That said Presbytery has always acknowledged its due subordination to Synod, never denied the rightful authority thereof, and never acted independently thereof, except in so far as the law of the church required it so to act. That no one of defendants tvas served with any process requiring him or them to appear before said Synod, or was otherwise notified that Synod would hear or determine any case, suit, appeal or complaint concerning said congregation, or its corporate property, or the rights and interests of defendants as members of said corporation. That on or about November 1st 1869, plaintiffs and their adherents voluntarily and causelessly seceded from said corporation, leaving defendants and their adherents in possession of the church building and property; and that from said date plaintiffs and their adherents have maintained an independent congregational organization. That General Synod has sought wrongfully to thrust the defendants out from the Reformed Presbyterian Church in North America, and from the jurisdiction of said Synod; and that defendants do adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America. That defendants have never refused, and do not refuse “ due subordination in the Lord” to the authority of said Synod, and that they do comply, and always have complied with all the terms of ecclesiastical communion, the sixth article of which is set forth in the bill. » That defendants (except Rev. Dr. Sterrett and Kemps) -were at a meeting convened after due notice in the church building, on first Monday of 1872, by the ballots of the members of said corporation, in due form of law elected trustees thereof, and that they have been and are recognised by the Session of said congregation as being in full communion with the church. That Dr. Sterrett was ordained and installed pastor of said congregation April 7th 1848, and that since then he has been sole pastor thereof; that his pastoral relation has never been dissolved; that he has never been suspended or deposed from the ministry of the Reformed Presbyterian Church, and that no ecclesiastical judicatory has ever severed the connection existing between him and said congregation. That defendants Kemps and Carrick having been duly ordained as ruling elders of the Reformed Presbyterian Church, were duly installed as ruling elders of said congregation, and have never resigned or been deposed from their offices. The- answer submits and charges : That the promises and vows taken or made by the ministers or elders of said Presbytery bind to subordination and subjection, only to such acts and decrees of the ecclesiastical judicatories of the denomination as may be lawfully enacted by those judicatories, under the powers granted to them by the “ system of religious principles,” as set forth in the books and documents referred to in the answer. That the action of General Synod in May 1868, was ultra vires, and illegal. That the action of Presbytery as set forth in the preambles, resolutions, memorials, &c., of June 12th 1868 and May 17th 1869, was not a secession of said Presbytery from the Reformed Presbyterian Church in North America, and was not intended and did not Operate to place Presbytery or any of its members, or any congregation under its care, out of the pale of said denomination ; that their action was not contrary to the laws of the denomination, or in violation of the vows taken by the members of said Presbytery. That the Synodical decree of May 1869, is void for want of jurisdiction, and for want of notice to the parties sought to be affected thereby. That the separate congregational action of plaintiffs and their adherents, has the effect of estopping plaintiffs from asserting any right or interest in, or title to, the property of said congregation. That under the law of the denomination, the pastoral relation cannot be dissolved, without the consent of both pastor and congregation, except by the death of the pastor, or his suspension or deposition from the ministry. ' The case was referred to an examiner to take testimony, and upon the coming in of his report the case was referred to Samuel C. Perkins, Esq., as master, who, after an able and exhaustive review of the history of the controversy, and the questions of law involved in the same, came to the following conclusions : That the government of the Reformed Presbyterian Church is not as alleged in the plaintiffs’ bill; but is, as stated in the answer, composed “under the laws and constitutions set forth in the books and documents referred to in the first paragraph of the answer— of the General Synod — Presbyteries duly subordinate thereto — and •of sessions of congregations : That Synod is the chief legislative authority, and the supreme, that is, the highest judicatory of the church; but that it has not original jurisdiction in such cases as it sees fit to assume over members of the denomination; as such jurisdiction is not conferred upon it by the constitution, rules'and regulations of the church : That the resolutions of the [First] Reformed Presbytery of Philadelphia, passed at its meeting, June 12th 1868, while perhaps not wholly unexceptionable in language and terms, yet were not in violation of all order and discipline of the church, nor were they in violation of the- vows taken by the ministers and elders who voted for the same: That had such action been as alleged in plaintiffs’ bill, Synod did not proceed in respect thereto in accordance with the forms, as prescribed by the standards, nor in a manner consonant with justice and right: That the action of Synod, in respect to the Second Reformed Presbyterian Congregation, through the Synodical Commission, was ultra vires and void as without jurisdiction : That the trust, or confidence, or purpose, for or upon which the corporate property and franchises of the Second Reformed Presbyterian Congregation are held, do not imply as a condition absolute obedience, subordination and subjection to the Reformed Presbyr terian Synod of North America: That the defendants and the majority of the Second Reformed Presbyterian Congregation, in their action in the premises, have exercised a right expressly reserved to them under the constitution of the church; and that they do “adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America That the defendants and a majority of the Second Reformed Presbyterian Congregation have not seceded from the Reformed Presbyterian Church, nor declared themselves independent, nor united with any other sect or denomination: That the action of the congregational meeting of April 22d 1869, was in accordance with the rights and privileges conferred by the charter, and that the plaintiffs, and those who united with them, not being satisfied with such action, and having withdrawn from the association on that account, are not entitled to claim the corporate franchises and property, or any part or share therein: That the defendant Sterrett has never been suspended or deposed from the ministry of the Reformed Presbyterian Church, nor dismissed from the pastorate of the Second Reformed Presbyterian Congregation; and that defendants Carrick and Kemps have not been suspended or deposed from the office of the eldership, nor ceased to be elders of said congregation: That the defendants Carrick, Reid, Jordan, McBride, Flemming and William and James Caldwell, were the lawfully elected trustees of said Second Reformed Presbyterian Congregation : That the allegations of the plaintiffs’ bill, on which they ground their application for relief, are not sustained: And that the plaintiffs’ bill should be dismissed with costs. Exceptions were filed to this report by appellants, which the court below dismissed and confirmed the report, and hence this appeal. Whenever a church or religious society has been originally endowed in connection with or in subordination to, some ecclesiastical organization or form of church government, it can no more become independent than it can renounce its faith or doctrine and adopt others: Roshi’s Appeal, 19 P. F. Smith 462; Schnoor’s Appeal, 17 Id. 138. Form of church government, order and discipline, are a part of the religious principles of the Reformed Presbyterian Church of North America. Its Synod has “declared and exhibited” them as applicable to this particular case. The defendants refuse to “adhere to and maintain” them as so declared, and are consequently incapacitated for membership in the corporation by the terms of the charter. Charters are only intended to create legal persons, and to define their powers and duties; the trusts for which such persons hold property donated to them are ascertained and enforced exactly as in the case of natural persons: App v. Lutheran Congregation, 6 Barr 201; Sutter v. Trustees, 6 Wright 503; Winebrenner v. Colder, 7 Id. 244; Shilton v. Webster, Bright. Rep. 239; Den v. Bolton, 7 Halstead (N. J.) 206. The title of the church property of a divided congregation is in that part of it which is acting in harmony with its own law; and the ecclesiastical laws, usages, customs and principles which were accepted among them before the dispute began are the standards for determining which party is right. Roshi’s Appeal and other cases cited above. The plaintiffs are, and the defendants were not acting in harmony with the laws, usages and principles which were accepted by the congregation before the dispute began. The title to the church property is therefore in the plaintiffs. Where a religious organization is governed by a body which is its chief legislative and supreme judicial authority, the act of that body as to the ecclesiastical status of a subordinate body in the organization is final, and will not be inquired into by civil courts: Commonwealth v. Green, 4 Whart. 531, 603; Henderson v. Hunter, 9 P. F. Smith 335; Watson v. Jones, 13 Wallace 679; Harrison et al. v. Hoyle et ah, Leg. Gaz., Dec. 18th 1874. The Synod is the supreme tribunal of the ecclesiastical organization in connection with, and subordination to which, this congregation was originally endowed. It has decided that the body to which the defendants have attached themselves do not, and the body to which the plaintiffs belong do, adhere to and maintain the system of religious principles of that organization. The civil tribunals will accept that decision of the ecclesiastical'status of the parties as conclusive, and will decree their civil-rights accordingly. Where adherence to a system of principles' declared and exhibited by a certain body is made by the charter the test of membership in a corporation, and that body has declared and exhibited what principles are applicable in the particular case or a similar one, such declaration' becomes the law of the case. The course of practice for over half a century, agreeing with and interpreting the standards, proves most conclusively that the Synod is self-existing; that Presbyteries are created, changed and abolished by it at its pleasure; that it deals directly and of its own motion, and as it sees fit with presbyteries, congregations, individuals and classes of men, and is the sole judge of ecclesiastical status of all inferior bodies or “judicatories” of the church. Here, the proof is clear and strong that the defendants, by their congregational acts have ratified and supported the rebellion of the Presbytery, in denial of the authority of the Synod, against the law and order of the church, and contrary to the system of religious principles declared and exhibited by the Synod of the Reformed Presbyterian Church in the Book of Discipline. Having thus refused to adhere to and maintain the system of religious principles enjoined upon them as members, by the charter of incorporation, they have no right to carry the church property with them, a property dedicated by the charter to the maintenance of Reformed Presbyterian religious principles as declared and exhibited by the Synod. The appellants must show that the property in question is held by the appellees upon a trust, whose terms the appellees have violated: Craigdallie v. Aikman, 1 Dow. P. C. 1; Same v. Aikman, 2 Blight 529; Same v. Aikman, 6 Patton’s App. 526; Attorney-General v. Pearson, 3 Meriv. 353; Attorney-General ex. rel. Mander v. Pearson, 7 Sim. 290 ; Attorney-General v. Shore, 7 Id. 310; Shore v. Wilson, 9 01. & Fin. 355; Dill v. Watson, 2 Jones (Irish Ex.) 48; Craigie v. Marshall, 12 Dunlop 523, cited in Innes on Creeds 375; Presbyterian Congregation v. Johnston, 1 W. & S. 9; Means v. The Church, 3 Id. 303; App v. Lutheran Congregation, 6 Barr 201; Trustees v. Sturgeon, 9 Id. 321; McGinnis v, Watson, 5 Wright 9; Sutter v. The Trustees, 6 Id. 503; Winebrenner v. Colder, 7 Id. 244; Trustees v. Lutheran Church, 12 Id. 20; Schnorr’s Appeal, 17 P. F. Smith 138; Roshi’s Appeal, 19 Id. 462. The trust requires adherence to and maintenance of the doctrines of the Reformed Presbyterian Church, and forbids passive obedience to the Synod. Where the trust, as here, does not, in express terms, require connection with any judicatory, it is nota breach of trust for the congregation to sever its connection with the judicatory, with which it has been heretofore connected, “ provided there be in such change no radical departure from the original faith or doctrine:” Craigie v. Marshall, 12 Dunlop 523; Presbyterian Congregation v. Johnston, 1 W. & S. 9; Trustees v. Lutheran Church, 12 Wright 20; Schnorr’s Appeal, 17 P. E. Smith 138, 147; Farreira v. Vasconcellos, 27 111. 237. The action of Presbytery on 12th June 1868, and the congregational approval of it, expressed by the meeting of the 22d April 1869, do not constitute a breach of trust. If the action of Presbytery and the congregational approval thereof, were contempt for the “established order of the church,” or “an open act of insubordination,” or “a refusal to yield due subordination,” the members of the Presbytery and of the congregation, severally, rendered themselves liable to trial before and by the church tribunal having jurisdiction, and proceeding in the exercise of that jurisdiction according to the law of the church; but they did not render themselves liable to be turned out of the church without hearing or trial. The Presbyterial action must be construed by this court, and the Synodical construction if it is not binding on the court. The decree of a church judicatory is only binding upon civil courts when it has been affirmatively shown that the judicatory has “ acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and if not, has proceeded in a manner consonant with the principles of justice :” Doctor and Student, Add., cap. viii.; Reeves’s History (Dublin ed. 1787), vol. 1, p. ,63; vol. 2, pp. 78, 215, 379; vol. 3, p. 257; vol. 4, pp. 3, 45, 205, 398; 1 Bl. Com., Iritrod. 3; Introd. to Brod. & Frem. Eccl. Cas ; Stat. 24 Hen. VIII., c. 19; 25 Id., c. 19; Innes on Creeds 208, 209; 1 Hallam’s Const. Hist. 195; Gorham v. Exeter, 69 E. C. L. 66; Dunbar v. Skinner, 21 Jur. 322; McMillan v. Free Church, 23 Dunlop 1314 (cited in Innes on Creeds 256-7, 285, 287-8-9, 290-1-2); 2 Burn’s Eccl. Law, tit. Deprivation; Rex v. Gaskin, 8 Term 209; In re Bp. of Natal, 3 Moo. P. C. 115; Long v. Bp. of Capetown, 3 Moo. (N. S.) 44; s. c. Brod. & Frem. 293; Natal v. Gladstone, L. R. 3 Eq. 1 ; Murray v. Burgess, L. R. 1 P. C. 362; Forbes v. Eden, L. R. 1 Sc. &Div. 568 ; Murdock v. Phillips Acad., 7 Pick 303 ; Same v. Same, 12 Id. 244; Thompson v. The Society, 7 Id. 160; Farreira v. Vasconcellos, 27 111. 237; Den v. Bolton, 7 Halst. 206; Watson v. Avery, 2 Bush 332; Wilson v. The Ch., 2 Rich. Eq. 192; Hoffman’s Eccl. Law 276-7; Walker v. Wainwright, 16 Barb. (S. C.) 486; Judge Redfield’s note, 9 Am. L. Reg. 220; Id., 10 Id. 308; Mr. Fuller’s note, Id. 313; McMillan v. Birch, 1 Binn. 178; Green v. Society, 1 S. & R. 254; Riddle v. Stevens, 2 Id. 537; St. Mary’s Church case, 7 Id: 517, 562; Commonwealth v. Green, 4 Whart. 531, 601; Presbyterian Cong. v. Johnston, 1 W. & S. 9; Church v. Commonwealth, 3 Barr 282; Batterson v. Thompson, 8 Phila; 25L _ ' _ The same rule is applied to non-religious voluntary societies: Commonwealth v. Philanthropic Society, 5 Binn. 486; Commonwealth v. Pike Society, 8 W. & S. 250; Society v. Vandyke, 2 Whart. 309; Franklin Association v. Commonwealth, 10 Barr 357 ; Binn’s case, 2 Binn. 441; Evans v. The Club, 14 Wright 107; Potter v. Search & Semple, 7 Phila. 443; Thomas v. Ellmaker, 1 Pars. 98; Leech v. Harris, 2 Brewst. 572; Lowry v. Stotzer, 3 ltd. 452. The action of the commission is void for want of jurisdiction, and for want of service of process on the appellees.
89 Pa. 114Audenreid's Appeal (1879)
Appeal from Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1876, No. 224. In Equity. This was a bill in equity filed by William G. Audenreid, Richard R. Robb and Thomas T. Jaeger, executors of Louis Audenreid, deceased, against Jonas M. Walker and William S. Forbes, M. D., charging a conspiracy on the part of the defendants to defraud the plaintiffs’ testator, and praying that certain contracts entered into between Walker, Forbes and the deceased be declared void, that an account might be taken of all profits received by virtue of said contracts, and a transfer of all securities acquired thereunder be made to the plaintiffs, and that each defendant might be required to make good any default of the other in so accounting. The alleged facts upon which the relief prayed for was sought were, that the testator was at the time of the perpetration of the fraud an old man over seventy years of age, infirm, wealthy and given to speculation; that these facts were known to the defendants ; that in the autumn of 1872, Walker applied to the promoters of the Texas and Pacific Construction Company, a corporation with a proposed capital of $10,000,000, for permission to obtain a subscriber to $250,000 worth of the capital stock of said corporation ; that it was then ascertained by the said Walker that the testator would be accepted as a subscriber to that amount on the stipulated terms; that the defendants then combined to induce Audenreid to furnish the above capital, under false pretences; that Forbes introduced Walker to Audenreid, and that Walker induced him to believe that he, Walker, had the sole privilege of disposing of $250,000 worth of the capital stock of the said corporation; that Walker actually owned that amount, and that no other such amount could be then purchased on as favorable terms as those offered by Walker; that these representations were untrue, and were intended to and did induce Audenreid to subscribe for the said amount of stock, which was done by him in the joint names of himself and Walker, and in consequence of the foregoing representations Audenreid allowed Walker to own one-fifth of the said amount of stock, it being agreed that Walker should not pay his instalment until the last, while Forbes was paid for his price of the agency in introducing the matter to Audenreid, and enabling him to obtain the bargain on so favorable terms, by a conveyance of one-fifth of the said stock, with the accruing profits thereon, Audenreid paying for the same. As evidence of these 'matters, there were appended to the bill two agreements under seal, dated respectively the 25th and 26th October 1872, the first signed by Walker and witnessed by Forbes, and the second signed by Audenreid and Forbes, in the first of which the terms of the joint purchase between Walker and Audenreid were settled, the first deed purporting to convey on Walker’s part to Audenreid capital stock to the amount of $200,000, falsely alleged in the instrument to have been at that time secured by Walker for himself. The second deed conveyed to Forbes one-fourth of the $200,000 worth of capital stock conveyed to Audenreid in the preceding instrument, upon the false consideration, therein recited, that Forbes had secured to Audenreid the said $200,000 worth of capital stock by virtue of the foregoing contract between Audenreid and Walker, which contract is in the last deed alleged to have been negotiated and secured through the agency and intervention of Forbes. The bill charged fraud on the ground that Walker had no interest at the time of the conveyances, averred payment of the whole amount by Audenreid and his executors, and asked for a declaration that the foregoing deed should be set aside as fraudulent, and the property transferred to the defendants reconveyed to the plaintiffs. The answer of Forbes denied fraudulent combination with Walker, admitted Audenreid’s age and infirmity of health, wealth and disposition to engage in speculations; averred a belief, that such a share as was purchased by Audenreid had been reserved for his co-defendant, and that at the time of the execution of the first of the foregoing deeds, Walker had control over such a share; admitted that he was Audenreid’s medical adviser, and very intimate with him; averred a request by Audenreid for an introduction to Walker, and an introduction in pursuance thereof; averred that he, Forbes, had received Walker’s written proposition, viz., the deed of 25th October, from Walker’s counsel, and had carried it to Audenreid shortly before the date of its signing; denie'd the considerations set out in the conveyance signed by him of the 26th October, and averred that the real consideration of said conveyance was friendship on the grantor’s part, the transfer being intended as a gift, and no other consideration having passed; that the consideration stated in the deed had been introduced at his counsel’s suggestion, who advised him to draw it up in the form of a contract for services rendered, and that this had been explained to Audenreid, and acquiesced in by him. The answer averred important medical services performed by the defendant for Audenreid. The answer of Walker denied fraudulent combination; alleged that Walker did have an interest over such a share as was purchased by Audenreid and himself at the time which had been specially reserved for him by one of the promoters of the enterprise; denied that he had consulted the company as to accepting Audenreid as a subscriber; denied that the stock conveyed to' Audenreid was open to the latter, or any other share, upon equally favorable terms, and admitted the payment by Audenreid and his executors of the full amount of $250,000. The court heard the case upon the pleadings and proofs, and in an opinion, Allison, P. J., said: “ The bill charges a conspiracy on the part of the defendants to defraud Lewis Audenreid. “ The conspiracy is alleged to consist of a combination or agreement on the part of Walker and Forbes to induce Audenreid to subscribe for $250,000 of the capital stock of a company, organized with a capital of $10,000,000, for the construction of a railway from the Mississippi to the Pacific Ocean. This conspiracy is charged to have been founded in fraud, and to have been carried into effect by misrepresentation of material statements made to Audenreid, and by concealing from him material facts which in good faith they ought to have disclosed. Forbes was the medical attendant of Audenreid, and Walker was at the time vice president of the Shenandoah Valley Railroad. The plaintiffs assert that Walker, prior to the 2d of November 1872, applied to the construction company for permission to obtain a subscriber for a block or parcel of stock of said company, amounting to $250,000, suggested the name of Audenreid, and ascertained that he would be accepted as a subscriber. Mr. Audenreid was about seventy years old, quite infirm in health, and during the greater part of the time confined to his house. It is further asserted by plaintiffs, that taking advantage of his condition, defendants, under false pretences, sought to obtain from him large interests in the property thus acquired. That Forbes introduced Walker to Audenreid, and that they induced him to believe that Walker was the owner of one of the shares, and that no other share could be got at all, or at least, not on as favorable terms as were offered by Walker, and that the stock would rise rapidly and greatly in value. “ The first two of these assertions, it is charged, were untrue, and that in consequence of the inducements held out to him, Audenreid was led to subscribe for a share in the joint name of himself and Walker, and to allow Walker to become the owner of one-fifth of that share, and of any profit derived from it, upon his undertaking to pay the one-fifth of the most deferred of the instalments ; out of which profits Walker expected to receive a larger sum than would be required to pay for his proportion of the stock ; and as the price of the agency of Eorbes in introducing the scheme to Audenreid, the latter agreed to give Forbes one-fourth in his interest of four-fifths of a share to be purchased and paid for exclusively by Audenreid. “Agreements in writing were executed by the said parties tc carry these several schemes into effect, and Audenreid, on the 2d of November 1872, made his subscription for himself and Walker upon the books of the company. The agreement with Walker is dated October 25th 1872, whereby he transferred to Audenried four-fifths of one undivided fortieth of the whole capital of said construction company, which he, Walker, ‘hath heretofore secured for himself, his heirs and assigns.’ “The agreement between Audenreid and Forbes bears date October 26th 1872, and recites that for the consideration that Forbes had secured to Audenreid an interest in the capital stock of the California and Texas Pacific Railway Company, under the contract between Walker and Audenreid, which was negotiated and secured through the agency and intervention of Forbes, and the further consideration of $1, Audenreid agreed to transfer to Forbes one-fourth of his interest in the stock of the company, and to deliver 'to him one-fourth of all stock, bonds, property and funds which he should receive from said company, and pay for calls for instalments on his entire four-fifths interest. “ It is claimed by the plaintiffs that these contracts' are fraudulent, by reason of the misrepresentation of the material facts of Walker’s ownership of an interest in the company, when he had no interest whatever, and that no other interest could be obtained by Audenreid at all, or on as favorable terms as that offered to him by Walker, and in concealing the fact that this and many other shares were open for subscription to any one capable of complying with its terms. ■ “ In the 13th paragraph of the bill, it is charged that these agreements were procured from Audenreid by combination and misrepresentation; that Walker’s alleged ownership of interest in said company was false, and that this was known to Forbes, who attested the agreement between Audenreid -and Walker, as a witness, and that in the articles signed by Audenreid and Forbes, Forbes’s agency in this scheme, charged to be fraudulent, is assigned as the consideration for the interest which Forbes obtained from Audenreid in the share and in its profits. “ In the 16th paragraph of the bill, plaintiffs claim that Walker was the agent of Audenreid in respect to the negotiations which resulted in the subscription to the stock; that he accepted such agency before making his contract with Audenreid; that prior thereto, he had applied to the promoters of the enterprise, and had been informed that Audenreid would be accepted as a subscriber, and that in either event, whether such application was made before or after their agreements with Audenreid, they became his agents, and were hound to inform him truly on what terms he might subscribe, and undeceive him as to all material facts upon which he had been induced to enter into the agreement with them. “ Upon the stock for which Audenreid subscribed, $222,500 have been paid, leaving still due $27,500, for which the estate of Audenreid is liable. “ Audenreid received from the construction company one hundred and sixty-two land grant bonds for $1000 each; of these plaintiffs state that Walker demanded and received thirty-two bonds on the 17th of July 1878, and that on the same day Forbes received thirty of said bonds. “ The relief which plaintiffs ask is, that the contracts between Walker and Forbes and Audenreid shall be declared to be fraudulent on the part of Walker and Forbes, and that they are not entitled to retain or to receive any profits under the same. “ That an account be taken of all profits received by them under the contract, and that the securities which they have received may be transferred by them to plaintiffs. “ That each of the defendants may be required to make good any default in the other, in the said accounting for and transfer of the securities or profits they may severally have received. u The defendants have made separate answers, in each of which they deny, in the most positive terms, the charges of fraud and of fraudulent combination. These denials are made by each defendant for himself individually, and for his co-defendant, in every particular, -where confederation and agreement is charged against them, and cover alike the assertions of misrepresentation and of concealment of material facts touching the transaction. “Forbes says, in the eighth paragraph of his answer : It is false that he had ascertained that Mr. Audenreid would be accepted as a subscriber; it is false that he combined with V1 alker to induce Audenreid to furnish the requisite capital to obtain one of the shares, or that, under false pretences, they intended to obtain any interest from him in the property; nor did they, or either of them, make any representation of Walker’s ownership of a share, or that no other share could he got upon the terms charged in the bill. He asserts that he made no representations of Walker’s ownership, and that he did not, on that occasion, introduce Walker to Audenreid, and that they had been acquainted for months previously. “ In the eleventh paragraph he also denies that, in consequence of any false representation by defendants, or either of them, Mr. Audenreid was induced to make the agreement which plaintiffs now seek to have set aside as fraudulent. “ With equal emphasis and particularity is set out in his answer the denial of Walker of the charges of fraud which are made against him, with one exception, namely: that which relates to his ownership of stock, and that no other stock could have been procured by Audenreid, at that time, on as favorable terms as those on which he claims to have sold and assigned his interest to him. “ This broad and emphatic denial of so much of the case of the plaintiffs as rests upon the allegations of fraudulent conspiracy, must be considered as conclusively answered, unless the evidence taken in the cause sustains the charge; and it can only be established against the defendants by the testimony of two witnesses, or by the testimony of one witness and corroborating circumstances. The plaintiffs must bring their case within the well-established equity rule that where the defendant in express terms negatives the allegations of the bill, and the evidence of one person only affirms what has been so negatived, then the court will neither make a decree nor send it to atrial at law: Danl. Ch. Pr. & PI. 983. Nor would the cause be sent to a trial at law unaccompanied by instructions as to the requisite amount of proof to sustain a verdict, contrary to the positive denial of the answer. And the operation of the defendant’s answer is the same, although the equity of the plaintiffs’ bill is grounded on the allegation of fraud: Dilly v. Barnard, 8 Gill & Johns. 171; McDonald v. McLeod, 1 Ired. 226 ; Lewis v. Owen, Id. 290; Murry v. Blatchford, 1 Wend. 583; Cunningham v. Freeborn, 3 Paige 557 ; Hart v. Ten Eyck, 2 Johns. Ch. 92. “ Several of the English authorities, and among them the case of Gibson v. Russell, 2 You. & Col. 104, were cited in support of the claim that in a case like the present one, the burden of proof is thrown upon the defendants. Gibson v. Russell, is, in many respects, like the one now before us. A deed of gift of real estate from an aged and infirm person to his intimate friend and medical attendant, was set aside for fraud, one of the circumstances in proof of fraud being that the deed stated, contrary to the proof, a money consideration. It was admitted, upon the hearing of that case, that although the deed recited a consideration of 10001. that no money was paid by the grantee for the property, but that the grantor had furnished 10001. of his own money to support a colorable payment by the grantee. In that case, however, the fact appeared that Gibson had been under insane delusions; this, in the opinion of the vice-chancellor, shifted the burden of proof, and required the defendant to establish first, that when Gibson executed the deed he was of sound mind; secondly, that he was at that time competent to transact such business; and thirdly, that he well understood the whole business, and needed no other advice respecting it than such as he had. “ The vice-chancellor found, as to each of these grounds, that the defendant had not established them by his proofs, and for this reason, and upon other considerations mentioned in his opinion, he set the deed aside. This case, though strongly analogous to the present one in several of its most prominent facts, yet differs from it in the one which is most essential, and upon this distinction the decision of the vice-chancellor is mainly founded. Although it was shown that Mr. Audenreid had greatly failed in bodily health, and a number of witnesses testified that his mind was considerably impaired, the value of this testimony is greatly shaken by the fact, that these witnesses did not hesitate to advise and consult him upon business matters, but transacted important business with and for him during all the time covered by their testimony. This is true of his partner, Mr. Potts, who, in October 1872, renewed his agreement of partnership with Mr. Audenreid; and it is equally true of Mr. Matthews and Mr. Geary, who were his business agents. The great preponderance of the testimony on this point establishes the fact that his mental faculties were in no appreciable degree impaired. We think this is clearly made out by the testimony of his sister, Mrs. Miller, who was his constant attendant; by that of Mr. Krumbhaar, the secretary of the construction company; by Mr. Purves, who transacted important legal business with him in May 1878; by Mr. Gest, who was his legal adviser, whose testimony covers the time extending from April 1872 to June 1875; by Dr. Ludlow, his consulting physician; and by his spiritual adviser, the Rev. Mr. Romich. The testimony also shows that Mr. Audenreid was possessed of a great business capacity; he was shrewd and keen at a bargain, and had a clearness of mental vision in all matters relating to business much above the average. “The burden of proof in this case is not shifted upon the defendants ; for here the denial is most positive; and it is, as a general rule, only where the answer of the defendant is not responsive to the bill, but sets up affirmations in opposition to, or in avoidance of the plaintiff’s demand, and is replied to by the plaintiff, that the answer is of no avail in respect to such allegations. In such a case the defendant is as much bound to support his affirmative averments by independent testimony, as the plaintiff is to sustain his bill: Daniel’s Ch. 984 note. “ Every allegation of fraud in equity as well as at law, unless it is admitted, or not denied when denial is required; or unless where, from the character of the answer, or from some other cause, such as temporary insanity, the burden of proof is shifted, must be established by proofs. The party who alleges fraud, must, as a general rule, establish the fraud upon which his equity or legal right rests. “ Recognising this necessity, the plaintiffs have resorted to their proofs, and it is due to the defendants to say that it entirely fails to support in any degree the charges of fraudulent combination between Forbes and Walker. Nor is there a tittle of reliable testimony which shows that Dr. Forbes, by any word or deed, departed from the strictest rule of right in his connection with the subscription to the stock of the construction company by Audenreid, or that he influenced him or sought to influence him to make the subscription. “ The testimony of Mrs. Miller, to some extent relied on by plaintiffs, we do not think is of any weight. She says Mr. Audenried first saw an account of the Southern Pacific Railroad in a newspaper, and spoke to Dr. Forbes about it, and when Mr. Audenried decided to take an interest in it, Dr. Forbes urged him to take his nephew or his partner in with him. Speaking of the doctor’s connection with the stock, she says, ‘My impression is he had it under his control. I dare say he got it from Walker. 1 don’t know anything about it.’ “When this conclusion is reached after a careful examination of the plaintiff’s testimony, and is weighed along with the most full and emphatic denial of all the charges of wrongdoing which are made against Forbes by the plaintiffs in their bill, accompanied by a statement which Dr. Forbes gives of his part in the transaction, we would be ready to dismiss the bill as to him but for the necessity which remains to consider the legal effect of the agreement between Forbes and Audenreid. “It is contended on behalf of the plaintiffs that the consideration r-ecited in the deed to Forbes is binding on him; that he cannot now deny it and claim that the stock was bestowed on him as a gift. In support of this proposition a number of authorities were cited, but these cases cannot be regarded as of authority in Pennsylvania since the decision of Jack v. Dougherty, 3 Watts 157, where it is ruled that parol evidence may be admitted to prove a consideration other or greater than that which is expressed in the deed, to rebut the presumption of fraud, if it be not flatly contradictory to that mentioned in the instrument. And where a deed states a consideration when none in fact was paid, it was held that the question of fraudulent intent was properly not decided by the court, but left as a question of fact for the jury. Judge Kennedy, delivering the opinion of the court, reviews the English authorities, and cites a number of New York cases, in which the doctrine now contended for was recognised. lie holds and attempts to show that the rule prior to the case of Clarkson v. Ilanneay, 2 P. Wms. 203, was not only held to be different, but has, in some instances, been considered so since the date of most of the' cases referred to. In Virginia it is held that in equity either party may prove the true consideration of a deed, though different from that expressed in it: Duval v. Bibb. 4 Hen. & Munf. 113. In Harvey v. Alexander, 1 Rand. 219, it was decided that where the deed was made in consideration of natural love and affection, and the further consideration of $1, parol proof was admissible of other valuable considerations. The same doctrine was recognised by the Supreme Court of Massachusetts, in Bullard v. Briggs, 7 Pick. 533. White v. Weeks, 1 P. & W. 486, supports this principle. Judge Kennedy remarks, it frequently happened that but little regard was paid by the parties to the consideration set forth in the deed, leaving it to the scrivener to put in such of it as in law he might deem sufficient to make the deed operative. The consideration being thus inserted rather to meet the exigency of the law than the whole truth of the case, parol evidence ought to be admitted to show the true consideration of the deed. “ The rule established by Jack v. Dougherty is, that it being only a ground for presumption, and not for construction, it is capable of being removed by parol evidence. “ Lewis v. Brewster, 7 P. F. Smith 410, adopts the doctrine established in Jack v. Dougherty, and quoting from the opinion of Judge Kennedy with approval, it decides that if a deed appears to be a voluntary conveyance, a valuable consideration may be proved by parol, and that which appears to be a valuable consideration may be proved in the same manner to be a gift for good consideration. The deed in that case recited a consideration of $300. The testimony was that nothing was paid; the scrivener said: If I understood the grantor, it was a gift to his daughter-in-law. Another witness said there was no money consideration for the deed— none paid or expected ; it was wholly a gift. “ This doctrine is also supported by Buckley’s Appeal, 12 Wright 491, and in Greenl. Ey., §§ 285 and 304. “ Dr. Forbes, in his answer, says the offer or proposition to give him an interest in the stock was made by Mr. Audenreid; that in reply to a question as to how much of the stock, he, Audenreid, would carry for him on his notes, he replied that he would not carry any, but that he had intended to give him one-fourth of his part, and that he would get his clerk, Mr. Robb, to draw up a paper to that effect; that after further conversation the doctor suggested that in a matter of so much importance he had better get a lawyer to draw up a legal and proper paper, and that he saw Mr. George Bull, who was of counsel for Mr. Walker, who prepared the agreement which was afterwards signed by Mr. Audenreid. “ Mr. Bull testifies that the consideration he inserted in the agreement was not inserted in consequence of any instruction he received from Dr. Forbes, or any one else; that the paper was intended to secure to the doctor an interest of $50,000, which he obtained as a gift, and as he knew that no present interest was to pass to the doctor, and that unless the contract had some consideration to support it, it was subject to revocation for greater caution he inserted the consideration recited in the agreement; that it was wholly upon his advice and at his suggestion that this was done. All this the answer asserts was explained to Mr. Audenreid, and that it was after explanation that he approved of and signed the contract. This, we think, ought not to be questioned, in view of the fact that in July following, eight months after the date of the agreement, he delivered to Dr. Forbes, by the hands of his confidential clerk, Mr. Robb, one of the plaintiffs, thirty $1000 bonds, having also, in May preceding, transferred in trust $100,000 of the construction bonds, the interest and principal being made subject to the direction of Dr. Eorbes, for hospital purposes in Philadelphia. The reasonable explanation of the generosity of Mr. Audenreid, and his desire to benefit Dr. Eorbes, is, that he felt himself under great obligation to him for important professional services which the doctor had rendered to him, and who also stood in the relation to him of a personal friend. This is to be considered in connection with the fact, that Mr. Audenreid was a gentleman of very large wealth, to whom a gift large in amount as this is would bring no sensible diminution of fortune, and it is also to be borne in mind that he expected to pay it out of the profits which he anticipated he would realize upon his investment in the stock of the construction company. The expectation of the promoters of the enterprise, and of the subscribers, was that it would rise to double its original value in a short time. “ Upon the allegations of undue influence we think the-plaintiffs have wholly failed upon their proofs. There is no such charge established against any one under the law as it is settled in Pennsylvania; a jury would be instructed to find against the plaintiffs upon their testimony upon this point, in a trial of an issue of devisavit vel non. It bears only, and that in a very slight degree, against Mrs. Miller, the sister of the deceased, who is no party to these proceedings. “ Dor can we agree with the plaintiffs that there is anything in the confidential relation of a medical adviser to a patient that per se forbids the acceptance of a gift by him from his patient. Greenfield’s Estate, 12 Harris 232, decides that there is no rule of law or of morals which prevents a minister of the gospel from receiving gifts, large or small, from his parishioners or from strangers. In that case, Mrs. Greenfield, who was old and infirm, gave to the Rev. William Suddards a sealed note for $6000 for “ value received and for his services;” the services wrere of a spiritual character, visits made at the request of Mrs. Greenfield to persons who were objects of her care and solicitude. This case rules the law upon this point against the plaintiffs; the relation of a spiritual adviser being closer, more confidential, and more influential in controlling the action of an aged and infirm person than that of a medical attendant. Greenfield's Estate also supports the doctrine that inquiry may be made as to the consideration recited in a deed or sealed instrument; the court hold, notwithstanding the valuable consideration mentioned, and that the note was under seal, which imports consideration, that it was to be regarded as a gift. “ Upon the whole case, therefore, as it stands upon the law applicable to and governing it, and upon the pleadings and the proofs, we are required to dismiss the bill as to William S. Eorbes; the costs as to him to be paid by the plaintiffs, and we so order.” The prayer of the bill as to Walker was granteci, the court, inter alia, saying: “ The agreement upon which Walker depends in defending against the claim of the plaintiffs, we are required to hold is void, because it claims to transfer to Audenreid that which Walker did not at the time possess. He was not possessed of a share, or of four-fifths of one undivided interest or original share of the capital stock of the construction company; nor had he, as is stated in the contract, secured such stock for himself or his assigns. This being the whole consideration for the undertaking of Audenreid, it is, as to him, without any consideration to support it, and therefore not binding upon him. This, in connection with the reasons already stated, leads us to the conclusion that the relief prayed for in the second, third and sixth prayer for relief should be granted as against Walker, and it is so ordered.” From the decree dismissing the bill as to Forbes, this appeal was taken contract which Walker got from Audenreid was a fraud upon the latter. This contract was negotiated through the agency of Forbes. Walker pretended to control certain property, and Audenreid contracted on the faith of that belief. This fact was stated in writing, and Forbes carried it to his principal, knowing its contents and their falsity. Unless Forbes’s answer is alone sufficient to overcome this proof, we submit the proof of combination is made out. Supposing it is not proved, then the defendant holds, under a contract, property which belonged to a man now dead, which sets forth as the consideration that which is utterly untrue and never existed. The defendant holds this property under a sealed contract. It is an executory contract to convey. It recites a consideration. A consideration is essential to.such a contract, it being executory. No one pretends to know or state any fact as to the other party to that contract but the defendant. He is incompetent as a witness. We therefore respectfully submit: No one claiming under a deceased person by contract as for value can be permitted to avoid the effect of proof that this was untrue by setting up that such contract was really a gift. If he can he must prove it and his answer is no evidence for him. It is evidently most inconsistent to permit a man to clothe himself with the strongest muniments of title and upon it being shown that all this is a fraud and untrue to claim the property as a gift. It seems very difficult for men to devise a form of evidence that will preserve them from fraud and imposition if this be the rule. This becomes still more apparent if we apply it to cases such as this where one party is aged, incapable of acting with the energy of men in active life, confined to his house, and compelled to act through agents. And it culminates when death has closed all means of obtaining explanations. The authorities are: Bridgman -v. Green, 2 Vesey 628; Huguenin v, Baseley 14 Id. 278; Dent v. Bennett, 4 Myl. & Or. 269; Uppinglin v. Bullen, 2 Dr. & War. 184 (Sugden Ch.); Gibson v. Russell, 2 You. & Col. 1-20 ; Dent v. Bennett, 7 Sim. 589. As between parties iwhere written instruments are appointed by the law or by the compact of the parties to be the repositories or memorials of the truth they are the only evidence of what was agreed to; Starkie Evidence (Sharswood ed.) 648, 651, 655; and see Hendrick v. Croly, 31 Cal. 471. Can a party prove title by gift from one deceased, when he takes under a deed purporting to be for value ? Defendant has not done so. He asserts it, but gives no proof. There is none pretended but his answer, and that only asserts an intention to give, changed after negotiation. That answer is not responsive; it is in confession and avoidance. But the rule as to responsive allegations has no place in such matters. They are never admitted to vary a right or fact proved by a document, or to vary its effect. As to the irresponsiveness of the defendant’s assertions in his answer of a different consideration from that averred in the bill, see Jones v. Belt, 2 Gill. 106-120 ; Randall v. Phillips, 3 Mason 387 ; Cocke v. Trotter, 10 Yerg. 215; Ives v. Harris, 4 R. I. 413; Elagg v. Mann, 2 Sum. 486; Dease v. Moody, 31 Miss. 617; Clarke v. White, 12 Peters 178 ; Wynans v. Wynans, 19 N. J. 220; McDpnald v. McDonald, 16 Vt. 631; Eaton’s Appeal, 16 P. E. Smith 485; Eisler v. Porch, 2 Stockton Ch. 243. The cases cited by the court below are distinguishable from the one at bar. The donee, where he stands in any confidential relation to the donor, must satisfy the court on a bill brought to set aside the gift, that the donor has had competent and independent advice in conferring the benefit, and that no undue influence has been practised. The confidential relation then shifts the burden of proof. The rule is independent of age, sex, mental infirmity or other incapacity: Rhodes v. Bate, Law Rep. 1 Oh. App. 252; Huguenin v. Baseley, swpra,; Popham v. Brooke, 5 Russ. 8; Lyon v. Home, Law Rep. 6 Eq. 655 ; Greenfield’s Estate, 2 Harris 489; Wright v. Vanderplank, 8 DeGex, M. & G. 137; Taylor v. Taylor, 8 How.’ 183; Todd v. Grove, 33 Md. 188 ; Boney v. Hollingsworth, 23 Ala. 698; Cadwalader v. West, 48 Mo. 483; Orispell v. Dubois, 4 Barb. 393; Brice v. Brice, 5 Id. 533; Wheeler v. Wheeler, 43 Conn. 803 ; Highberger v. Stiffler, 21 Md. 338; Meek v. Thornton, Executors, v. Perry et ux., 36 Miss. 244; Lake v. Ranney, 33 Barb. 68; Bergen v. Udall, 31 Id. 9; Garvin v. Williams, 44 Mo. 465. Independent of fraud no title passed, as the conveyance was void. This bill is also to obtain restitution of property conveyed by a deed which was void for want of consideration. The proceeding is by the grantor himself or those immediately representing him. In all the cases .cited by apoellee the conveyance was attacked' by strangers or third parties. No rule that a deed cannot be set up as a gift when it purports to be for value obtains in this state: Jack v. Dougherty, 3 Watts 157; Lewis v. Brewster, 7 P. F. Smith 410; Duvall v. Bibb, 4 Hen. & Munf. 113; Greenl. on Ev., §304, citing 2 Coll. Ch. 76. The answer is responsive: Eberly v. Groff, 9 Harris 251. The bill charges that Forbes secured this contract by fraud and false pretences. Everything that shows fairness in the transaction is responsive to the bill. The plaintiffs state a transaction as the foundation of their equity. The defendant has a right to state the whole of such transaction as it really W’as. Gifts to a medical adviser do not stand on the same footing as gifts from a client to an attorney, which are set aside on grounds of public policy, or transactions between ward and guardian, cestui que trust and trustee: Greenfield’s Estate 12 Harris 232 ; Jackson v. Ashton, 11 Pet. 229; Dóggett v. Lane, 12 Mo. 215. The bill did not allege that Mr. Audenried was of weak intellect; on the contrary the testimony showed that he was of sound mind and strong will, and not of a facile disposition.
89 Pa. 128Fegley v. McDonald (1879)
Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1876, No. 253. Joseph McDonald became surety for one Rose, as treasurer of Stephen Girard Lodge, No. 450, A. Y. M., giving to the lodge, with Rose, a joint and several bond with warrant of attorney in $1000, for the faithful performance by Rose of the duties of his office. Judgment was entered thereon June 25th 1874, which judgment was subsequently opened as to McDonald, who was let into a defence. At the trial, before Finletter, J., it appeared that Rose was ordered by the lodge, on January 28th 1874, to pay the Grand Lodge, F. & A. M., the sum of $920, the amount of -rent and dues owing for the year 1873. Rose made no attempt to obey the or.der of the lodge until May 27th 1874. On that day, after 3 o’clock, he sent his personal check for $920 to the secretary of the Grand Lodge, drawn on the Union Banking Company of Philadelphia. This check was not presented until June 4th 1874, when it was dishonored. On the day the check was given, Rose had no funds in bank' to meet it, but the next day, May 28th 1874, he deposited the amount of the check to his individual account in the Union Banking Company. The funds so deposited, however, had been appropriated by said barde, June 4th 1874, before the check was presented, to pay a note then due, endorsed by Rose, which the bank had discounted for his benefit. The lodge was subsequently compelled to pay the said $920 to the Grand Lodge with accumulated interest. Rose never accounted to Stephen Girard Lodge for said amount or paid any part of the same. The court directed the jury to find for the plaintiffs, reserving the question of law as to whether McDonald, the surety, was discharged from liability on his bond to Stephen Girard Lodge by the delay of the Grand Lodge in presenting the check. The verdict was for the plaintiffs. Subsequently judgment was entered, by the court in banc, for the defendant on the point reserved. The case was first argued in the Supreme Court on February 27th 1878, and the court being equally divided (Woodward, J., being absent), the judgment was affirmed. A re-argument was subsequently ordered. McDonald was not an endorser on a note but a co-obligor on a bond, and the delay of the Grand Lodge could not, therefore, discharge him : Hutchinson v. Commonwealth, 6 Barr 124; Wayne v. Commercial Bank, 2 Smith 348. The delay worked a discharge: Richards v. Commonwealth, 4 Wright 146; Hopkins v. Ware, Law Rep. 4 Ex. 268. The subordinate lodge should have insisted that the check was payment, and the fact that they paid the second time cannot affect McDonald.
89 Pa. 131Wilgus v. Whitehead (1879)
1. A verbal agreement modifying a contract under seal, is valid when such agreement is for a new consideration and not within the Statute of Frauds. 2. Where a tenant is in possession under the terms of a lease under seal, and his landlord, at the tenant’s request, agrees with him to change the time of the payment of the rent from the beginning to the end of the month, the landlord will be held to have waived the strict performance of the contract, and the tenant will not be bound to pay any month’s rent until the end thereof.
89 Pa. 134Callan v. Lukens (1879)
1. To materially vary or contradict a written contract by evidence of a contemporaneous parol agreement, it must be alleged that the contract was executed on the faith of the parol agreement. 2. There is no rule that a supplemental affidavit of defence is to be confined to an explanation of the original, and cannot set up a new and different defence; such a course, however, is suspicious and requires that the new defence should be closely scrutinized.
89 Pa. 136Evans v. Scott (1879)
1. D. and H., who were brothers, lived together in the same house, D. being married, and H. a bachelor. The lease of the house was in D.\s name; but II. paid the larger portion of the rent. All the furniture in the house belonged to H. except the carpets. They were bought by D. on credit, and when his note therefor matured, II. took it up, and the firm from which the carpets were bought, on the order of D., gave H. a bill for the carpets in his own name. In a feigned issue directed upon an execution issuing against D., IT. claimed the carpets. The court below instructed the jury “ that as matter of law under the evidence in the case, the title of H. to the carpets, though good as between bim and D., was fraudulent as against the creditors of D.1' Held, that this was error. 2. The question should have been submitted to the j ury whether the change of possession was actual and bona fide, not pretended, deceptive and collusive, and whether such change of possession was ail that could be expected of the vendor, taking into view the character and situation of the property, and the relations of the parties. 3. McKibbin v. Martin, 14 P. F. Smith 352, followed.
89 Pa. 139Brown's Appeal (1879)
Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1876, No. 67. Appeal of John H. Brown, administrator de bonis non, cum testamento annexo,-of James W. Brown, deceased, from the decree of the court, confirming the report of the auditor and ordering the accountant, John H. Brown, to pay to Mrs. Ellen H. Brown the sum of $8482.74, and to her trustee the sum of $15,470. The essential facts, together with the substance of the rulings of the auditor, John P. O’Neill, Esq., will be found stated in the opinion of this court. The opinion of the court in confirming the report of the auditor, was delivered by Hanna, J. The assignments of error were to the various items of surcharge, as set forth in the opinion of this court, and that “ the court erred in assuming to take jurisdiction to settle partnership accounts, when one only, of four surviving partners, was before them.” There are other partners, likewise interested in the suit, who are not in court, and it is sought, notwithstanding that fact, to settle the accounts between them and the decedent in an administration account in the Orphans’ Court, in a proceeding in •which they have not participated, and with which they have nothing whatever to do. We cannot take an account of the partnership concerns as between the’ partners themselves in the Orphans’ Court, and, until an account of the partnership concerns is taken, it is impossible to tell whether one partner is really debtor or creditor to the other partners. The accounts of these partners remain unadjusted, and yet it is in effect here decreed that one partner shall recover from another money received on partnership account, and which may actually belong to one or more of the other partners who are not now in court or parties to this proceeding. The court therefore erred in assuming to take jurisdiction, because, even if there were no other parties actually interested in or affected by the result, the only proper remedy was by a partnership bill in equity: Story on Partnership 367, 557; Collyer on Partnership, Perkins ed., 298. It is not disputed that interest cannot bo charged as between partners, in the absence of an agreement to that effect, or where, from lapse of time and neglect to charge interest, an agreement not to charge may be presumed, but we contend that the rule has no application to such a case as this, where the liability was carefully and purposely concealed by one partner from his co-partners for many years, and where, from the nature of his position in the firm and assignment of duties to him in the business, complete opportunity was afforded him to effect the concealment. Time, as well as negligence, must be computed only from the date of discovery of the fraud, if there be any in the transaction. The surviving partners were interested to the extent of sixty-seven and a half per cent, of the whole, and they were therefore entitled to the widest latitude in extending, modifying and discharging the contracts and liabilities of the firm for the purpose of saving themselves as well as the estate of the deceased partner, provided they continued in good faith to devote themselves to the primary object of winding up the business. They were not only entitled to close up the affairs of the firm, but^ as survivors, they had all the rights, duties, powers and authorities of the partnership : Evans v. Evans, 9 Paige 178. They were entitled to receive the debts, sell the goods, pay the obligations of the firm, fulfil outstanding contracts, and are not liable for losses, if such are made in good faith and without abuse or misapplication of the funds or property of the partnership: Phillips v. Phillips, 3 Hare 281. The argument of the appellees is founded on the theory that there was a new partnership formed in February 3860. There is no evidence to sustain such a theory. The appellant is both an administrator and a surviving partner of the decedent. The inventory filed embraced the interest of the decedent in the firm dissolved by his death, the successor of prior firms. For the disposition of that interest the appellant is accountable as administrator. By Act of 16th of June 1836, §19, the Orphans’ Court having jurisdiction “ in all cases” * * * “ wherein” * * * “administrators may be possessed of, or are in any way accountable for any real or personal estate of a decedent,” that jurisdiction cannot certainly be ousted by the nature of the evidence to be investigated, so long as the question and its decision are strictly within legitimate inquiry. The Orphans’ Court in its sphere being “ essentially a court of chancery,” the ordinary principle of chancery applies that the jurisdiction having rightfully attached, it “ will dispose of every subject embraced within the circle of contestShollenberger’s Appeal, 9 Harris 340 ; Bull’s Appeal, 12 Id. 288; Black’s Exr’s v. Black, 10 Casey 357. This is not an attempt to surcharge Mr. Brown, but to make him pay that which he had discharged without authority. The jurisdiction of the Orphans’ Court is undoubted : Gilbert’s Appeal, 28 P. F. Smith 266; Bice’s Appeal, 29 Id. 168; Dundas’s Appeal, 23 Id. 474; Kelly’s Appeal, 4 Harris 59. The appellant, as administrator, was not permitted to charge the estate, which he attempted to do, with the loss of the business continued after the decedent’s death, and he was charged with interest on decedent’s share of the dissolved firm’s assets allowed by him to be used to the disadvantage of the estate. Whiteside v. Whiteside, 8 Harris 473 ; Ashford v. Ewing, 1 Casey 213 ; Kittera’s Estate, 5 Harris 416; Dundas’s Appeal, 23 P. F. Smith 479; Bice’s Appeal, 29 Id. 182; Lisenbigler v. Gourley, 6 Id. 172, all sustain the jurisdiction, while Gilbert’s Appeal, 28 P. F. Smith 266, presents its actual exercise in a like case, where an administrator was also a surviving partner. The surviving partner continuing the estate at risk, detaining its funds, mixing the same with his own, or using them, or continuing the business, does so at his own peril, and is liable to be charged with interest: Taylor v. Young’s Adm’r, 2 Bush 432; Mumford v. Murray, 6 Johns. Ch. 14; Booth v. Parks, 12 Eng. Ch. 228; 1 Molloy 465; Washburn v. Goodman, 17 Pick. 519; Millard v. Ramsdell, Harr. Ch. 372; Callaghan v. Hall, 1 S. & R. 241; Jos. Parker’s Estate, 14 P. F. Smith 311; Norris’s Appeal, 21 Id. 106; Gilbert’s Appeal, 28 Id. 266 ; Laughlin v. Lorenz, 12 Wright 275 ; Lind, on Part. *890.
89 Pa. 148Sparks's Appeal (1879)
Testator by his will provided, “ I hereby give, devise and bequeath to my son S. and to his heirs and assigns for ever, upon his attaining the age of twenty-one years, all my Shot Tower property, consisting of shot tower, buildings and lots of ground connected therewith * * * with all the appurtenances, machinery, fixtures and personal property therein and thereto belonging.” At the date of the testator’s death there was in the Shot Tower property a large quantity of manufactured shot. There was also a quantity of materials used in the manufacture of shot. It was the manifest design of the testator that his son should continue the business when he reached his majority. Held, that the son was entitled to the unmanufactured materials on the property at the date of testator’s death, but that the provisions of the will could not be made to embrace the manufactured stock.
89 Pa. 154Hunsecker v. Thomas (1879)
Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1876, No. 51. Ejectment by Peter Hunsecker and others, heirs at law of William C. Hunsecker, deceased, against Charles J. Thomas and others, terre-tenants, for certain premises in the city of Philadelphia. Charles J. Thomas, on April 4th 1878, conveyed the land in dispute to William C. Hunsecker, taking from him a mortgage for a large part of the purchase-money. On January 3d 1874, Thomas issued a scire facias on this mortgage, and on January 26th 1874, judgment was obtained thereon. On March 21st 1874, William C. Hunsecker died, intestate. On March 25th 1874, Thomas issued an alias levari facias on the judgment obtained on his mortgage, without a previous scire facias to warn the personal representatives of the deceased. On April 4th 1874, his death was suggested on the record, and on April 6th, the property was sold at sheriff’s sale to Thomas for $500. At the trial, the foregoing facts having appeared, the plaintiffs asked the court to charge as follows : It being admitted by the defendants that William C. Hunsecker, under whom the plaintiffs claim, died on the 21st day of March 1874, and that the plaintiffs are his heirs, the sheriff’s sale under the writ of alias levari facias mentioned in the record, given ■ in evidence by the defendants, passed no title to the defendants, the said records not showing any notice of the issuing thereof to the plaintiffs or any of them, or any warning to the personal representatives of said William C. Hunsecker to show cause against the issuing of the same, and that the verdict must therefore be in favor of the plaintiffs. The court, Elcock, J., answered : “ I decline so to charge, but on the contrary direct you to find a verdict for the defendants/’ ■ The plaintiffs took this writ and assigned this action for error. —This case differs from Taylor v. Young, 21 P. F. Smith 81. In that case the judgment had been obtained on two returns of nihil; in this the writ of scire facias was served on defendant. This case is ruled by Taylor v. Young, supra.
89 Pa. 155Hieskell v. Farmers' & Mechanics' National Bank (1879)
Error to the Court of Common Pleas, No. 8, of Philadelphia county: Of July Term 1876, No. 79. Replevin by the Farmers’ and Mechanics’ National Bank against Colson Hieskell and others for four hundred and twenty-six bales of cotton. C. and F. M. Hieskell, two of the defendants below, claimed .property in one hundred and fifty-nine bales qf cotton (part of those named in the writ) found in their possession, and retained the same under their bond. The Hieskells pleaded, 1st. That the property to the said one hundred and fifty-nine bales of cotton, so retained by them, was in them and not in the said bank; and 2d, That the property in the same one hundred and fifty-nine bales was in John F. Hellen, subject to a lien to them, the said Hieskells, for $10,000 loaned and advanced by them to said Hellen, on pledge and delivery of possession of said one hundred and fifty-nine bales by Hellen to them, and not in the said bank. Issue was joined thereon. J. M. Morey & Co., cotton buyers, at Galveston, Texas, in the early part of 1874 were requested by J. F. Hellen, of Philadelphia, to purchase for him one thousand bales of cotton, to be shipped to Philadelphia. Morey & Co., not being provided with funds to purchase the cotton, applied to Ball, Hutchings & Co., bankers, of Galveston, who agreed to advance the money to make the purchase, upon the express condition that they should be furnished with insurance certificates and drafts drawn on Hellen for the price of the cotton, together with the bills of lading, which bills, as well as the cotton, they were to hold until the drafts were not only accepted but paid. With the funds obtained upon the faith of this arrangement, Morey & Co. purchased the cotton in their own name, shipped the same, and drew on Hellen at thirty days’ sight for the amount. They then endorsed the drafts and bills of lading and gave them to Ball, Hutchings & Co., who transmitted them, duly endorsed, to the City National Bank of New York for collection, which forwarded them to the plaintiff. To both banks express instructions were sent to retain the bills of lading until the drafts were actually paid. To each draft was attached a bill of lading, on which was written, “ Hold bill of lading until draft is paid.” The drafts to which were thus attached the bills of lading were duly presented to Hellen on July 13th 1874, and were accepted by him. The cotton arrived in Philadelphia on July 15th 1874, and upon Hellen being notified to remove it from the wharf of the steamship company, he took it away and stored it in the warehouse of the Hieskells, and on the 17th of July 1874, obtained from them an advance of $10,000 thereon. Hellen failed a few days thereafter. The bank, on July 23d 1874, having learned of the delivery to Hellen, instituted this action. The delivery was made to Hellen without the knowledge of the bank or presentation of the bills. It appeared that in other transactions between these parties, where drafts and bills of lading had been sent with similar instructions as to retention, the cotton had been delivered by the steamship company to Hellen in the same manner without presentation of the original bills of lading. At the trial before Lynd J., the defendants submitted, inter alia, the following points: 1. That if the jury shall be satisfied from the evidence that Hellen purchased the cotton on thirty days’ time, and that he made no engagement that the vendor or his assigns should retain the bill of lading until the maturity of the draft as security for its payment, then after the acceptance of the draft, Hellen became entitled to the possession of the cotton, and the bill of lading as an evidence of title inured to his use; and his sale or pledge of the cotton (which the carrier delivered to him before maturity of the acceptance) to any bona fide purchaser or pledgee for value, would pass the title to such purchaser or pledgee as against the plaintiff. 2. That the carrier having delivered the cotton in question to Hellen, the purchaser, after the acceptance of the thirty-day draft, and the plaintiffs having omitted to give the carrier notice to detain the cotton, the delivery to Hellen was lawful, and passed the title-to him and his vendees or pledgees. The court declined to answer these points, but in the general charge, inter alia, said: “ As a point of law, the court submits to you, that in this case, the. question is not what Mr. Hellen wanted Morey & Co. to do, or what the terms of Mr. Hellen’s order upon them were; but it is what they were able to do. This was to be a sale, and if Mr.Hellen wanted to insist upon the benefits of a sale, and claim that it was a sale to him, he would have to take it subject to such terms as Morey & Co., who were acting for him, had to submit to in order to procure the money at Galveston. * * * [“Now, the allegations on the part of the plaintiff, as you know very well, are that Morey & Co., as soon as they received the order from Mr. Hellen, went to Ball, Hutchings & Co., and stated to them what the order was; stated to them that Mr. Hellen wanted them to buy in Galveston so many bales of cotton, on thirty days’ time, and that they, Morey & Co., wanted them, Ball, Hutchings & Co., to advance the money; that Ball, Hutchings & Co. replied, ‘we will advance you the money upon the terms of your furnishing us with a bill of lading and insurance certificate and a draft, and that we are to hold the bill of lading and cotton until payment of the draft.’ ’ “Now, as the court remembers the statements of the witnesses, although what they said is for the jury always, and the weight that shall be given, and the credence which shall be attached to it, are also for the jury, yet, as the court remembers it, this is substantially what was stated by both parties, as to what took place: that Morey & Co. assented to these conditions, that they thus secured the money, or' rather secured an obligation or undertaking on the part of Ball, Hutchings & Co., that the money should be forthcoming to pay for the cotton, the instant the owner of the cotton needed it; that they went out then and bought the cotton and paid for it, with the money of Ball, Hutchings & Co., and then, in due time, as soon as the cotton could be shipped on board the vessel, or at least landed upon the wharf, so that it was within the power of the owners of the vessel to put it on board, and the bills of lading were made out, Morey & Co., in pursuance of the antecedent agreement, which is the foundation of everything, brought back these bills of lading made out in the name of Morey & Co., and then and there endorsed the bills of lading and delivered them and the drafts and insurance certificates to Ball, Hutchings & Co. “ Now, as the court has already said, in the view taken by the court of this question of law here, if you find the facts to be as the court has stated them, then your verdict ought to be for the plaintiff.”] The verdict was for the plaintiff for $13,017.83, and after judgment thereon, Hieskell took this writ and alleged, inter alia, that the court erred in refusing to answer the points submitted by defendants, and in the foregoing portion of the charge embraced in brackets. Ball, Hutchings & Co. did not take as purchasers or owners of the title to the cotton, but as pledgees to secure the payment of their advances. The right which Morey & Co. passed to them by the endorsement of the bill of lading was that of pledgees merely, and no greater right accrued to the bank. No assignee or endorsee of a bill of lading can have a higher right than the shipper to whose order it is issued. The bank, therefore, had no right to retain the bills of lading after the acceptance of the drafts : Bank v. Bank, 1 Otto 92. The carrier was the agent of the holder of the bill of lading for preserving the lien of the latter on the goods, and if he takes the responsibility of delivering the goods to a party whom he knows to be the buyer, without requiring the production of the bill of lading, especially where the course of previous dealing has led the carrier to infer that the holder of the bill of lading consents to the delivery to the buyer of the goods, the title to .the buyer' passes so far as to give protection to bona fide purchasers from him, and to protect the carrier: Ontario Bank v. New Jersey Steamboat Co., 59 N. J. 510. The court erred in refusing to answer defendant’s points, and in taking away from the jury the questions of the nature of the bank’s title, whether by way of pledge or otherwise; as to Morey & Co.’s power without Hellen’s assent to bargain for the retention of the bills of lading; whether the laches or omission of the bank had not contributed to cause the Hieskells to make their transaction with Hellen; all questions of usage of the port as to the deliveries of cotton by the carrier, and as to.the course of dealing which impliedly recognised formerly deliveries of cotton to Hellen; and the questions resulting from Hieskells being bona fide purchasers or pledgees for value, without notice; and therefore standing in a new and stronger position than Hellen. The court ought not to submit á point to the jury when there is no evidence to sustain it: Inkett v. Coryell, 5 W. & S. 60. The court is not bound to answer any question which is not pertinent to the issue and does not arise fairly out of the evidence. The carrier’s unauthorized delivery of the cotton to Hellen did not enable him to pass a good title to the Hieskells as bona fide purchasers for value. There could be no delivery except in accordance with the bill of lading: Dows v. Milwaukee Bank, 1 Otto 618; Meyerstein v. Barber, L. R. 2 • C. P. 38; Stollenwerck v. Thatcher, 115 Mass. 224.
89 Pa. 163Guillou v. Peterson (1879)
1. A., B. and O. were in partnership. C., who was a special partner, by a failure to comply with the law regulating limited partnerships, became a general partner as to the public, but remained a special one as to his partners. B., who was the executor of an estate, loaned certain of its securities to the firm and they were converted to the firm use. There was evidence that O. knew of at least one loan made by B. to the firm. Held, that although there was no evidence to show that C. participated in or knew of the fraudulent conversion he was liable as a general partner to the estate. 2. The fact that B. knew of the limited liability of C. would not bind the estate for which he was acting and prevent recovery against C. An executor can only bind his cestui que trust when acting within the scope of his authority. 3. The knowledge of O. as to the irregular loan made by B. was sufficient to put him on inquiry as to the manner in which the business of the firm was being conducted.
89 Pa. 173Sowers's Appeal (1879)
1, of Philadelphia county: Of January Term 1877, No. 69J. Libel in divorce á mensá et thoro filed by Josephine Gordon Sowers, by her next… Held: a respectable position in society. They have each testified, as we are bound to presume, according to an honest belief; but they have seen and heard, as well as acted their several parts, from different standpoints; real or supposed causes of complaint have given tone and color to the transactions of which they have testified, and…
89 Pa. 183Simpson v. Neill (1879)
2, of Philadelphia county: Of January Term 1877, No. 153. Debt by John L. Neill against Adam M. Simpson, on an award of the Board of Port Wardens of the port of Philadelphia. In 1867 Neill and Simpson were tenants in common of certain land which extended from Swanson street to the line fixed by the Board' of Port Wardens in the Delaware river. On this land was a wharf, from which extended two piers into the river at a distance of about sixty-four feet from each other.
89 Pa. 186American Steamship Co. v. Young (1879)
Error to the Court of Common Pleas, No. 1, of Philadelphia county : Of January Term 1877, No. 223. Case by the American Steamship Company against John H. Young, in which a case was stated, in substance, as follows: Young is the United States Shipping Commissioner at Philadelphia. The plaintiff is a corporation and the owner of a line of steamships sailing between Philadelphia and Liverpool. The men constituting the crews of the steamships of said corporation were shipped before said Young as shipping commissioner. For each round voyage, said commissioner has charged for each man shipped at Philadelphia the sum of $2, renewing said charge of $2 upon each reshipment on the same vessel. The payment of said fees was claimed by color of his office as shipping commissioner. The total number of men shipped before defendant was 6136. Of this number 2439 were seamen who reshipped, and sailed from Philadelphia, on the next succeeding voyage of the same steamship in which they had returned to Philadelphia, from a voyage for which they had previously shipped before said commissioner, and for which men defendant had demanded and received $4878, being a fee of $2 for each man so reshipped. These payments were made from time to time on bills rendered by defendant and in which said charge was made for every man reshipped. A demand had been made for the return of said $4878, which had been refused. If upon these facts the court were of opinion that under the statutes of the United States, the commissioner was not entitled to the fee of $2 for the reshipping members of a crew, then judgment to be entered for plaintiff, if not then for defendant. The court, Biddle, J., in an opinion said:— “We do not think it necessary for the decision of this case to construe the laws of the United States relative to the shipment of merchant seamen. As it is not necessary, we prefer to leave them to the tribunal of the United States, with whom they are a subject of constant study and adjudication. The case stated admits that the fees were claimed in good faith, under a clause in the Shipping Act, and that they were paid without protest or remonstrance. The question,' therefore, which is raised for our adjudication is, can these fees be reclaimed in a suit instituted in our court under the laws of Pennsylvania. “ The general principle that a voluntary payment, made with a full knowledge of the facts but in ignorance of the'law, cannot be recovered by the party making it is not controverted, but it is contended that fees paid in consequence of a demand by a public officer, virtute officii, are not to be treated as voluntary payments. “ In regard to this there seems to be a well-marked distinction between exactions by a public officer, as in Ogden v. Maxwell, 3 Blatchf. 319, which are wilful wrongs, and demands under a mistaken view of the law — between money corruptly obtained under color of office, and that improperly levied under color of law. To the first class of cases the one now submitted does not belong. It is not alleged that the money was obtained by deceit or unfair practices. In regard to the latter, the two cases of the Borough of Allentown v. Saeger, 8 Harris 421, and Taylor v. The Board of Health, 7 Casey 73, seem very much in point. In the Borough of Allentown v. Saeger, a borough tax, part of which was legal and part illegal, was paid by the person assessed to the tax collector without protest or notice at the time that he would reclaim the part illegally assessed, and it was held he could not recover it. Here, it will be observed, the suit was against the borough, who actually held the money and not against the tax collector, who might or might not have paid it over. Judge Lowrib says, in delivering the judgment of the court: ‘ The taxing officers performed their duty as well as they knew how, and the tax was submitted to by one who was interested in the purpose for which it 'was raised, though it might have been resisted in legal form.’ In Taylor v. The Board of Health, the action was against the board of health, the executive officer of the state, who collected the tax and expended it for purposes designated by law, as in the present case; the court there decided: ‘ That the plaintiff paid without dispute, and thus assented to the collection of the tax for public purposes and, of course, to the application of it, and he has no shadow of equity against the collecting functionary.’ And they further say expressly : ‘We state the case as one of a voluntary payment of taxes because there is no pretence that the defendant’s officers did any more than demand the tax under a supposed authority of the law, and this is no more a compulsion than where an individual demands a supposed right. The threat that is supposed to underlie such a demand is a legally harmless one — that in ease of refusal the appropriate legal remedy will be resorted to. “ In the case submitted to us, the plaintiffs from the nature of their business would be quite as likely to understand the provisions of the law as the defendant, and their paying for three years without objection, what they now allege to be illegal charges, was calculated to induce the defendant to persist in the construction of the law which they acquiesced in and to collect the same tax from others. “We think, .therefore, that the payments made in this case were ‘voluntary payments,’ which, under the Pennsylvania decisions, cannot be recovered. Judgment is therefore entered for the defendant on the case stated, with costs.” The plaintiff took this writ and assigned this action for error. There is a distinction between the fees of public officers and taxes or public dues, and the right to recover the latter, when paid without protest, is denied upon the ground that the officer pays them into the public treasury for public purposes: Taylor v. Board of Health, 7 Casey 73. The fees charged by public officers are never paid voluntarily, but can be recovered if illegal: American Fire Ins. Co. v. Britton, 8 Bosw. 148; Ogden v. Maxwell, 3 Blatch. C. O. 319 ; Steele v. ‘Williams, 20 Law & Eq. R. 319; Morgan v. Palmer, 2 B. & C. 729; Baker v. City of Cincinnati, 11 Ohio 534; Drew v. Parsons, 2 B. & Aid. 562; Walker v. Ham, 2 N. II. 238; Lasalle County v. Simons, 5 Oilman 513. A penalty in Pennsylvania may be recovered for taking illegal fees, although the officer thought they were legally demandable, and acted without corrupt intent: Coates v. Wallace, 17 S. &.R. 75. It is only in an indictment that the act must be shown to be wilful, fraudulent and corrupt: Miller v. Lockwood, 5 Harris 248. State courts have jurisdiction to recover excessive fees or charges exacted by officers of United States by color of office: Ripley v. G-elston, 9 Johns. 201; Claiton v. Strong, Id. 248; Slocum v. Mayberry, 2 Wheat. 1. It was obviously the purpose of the act to allow a vessel, on her return to a port of the United States, to reship her crew and proceed on one other voyage, without the payment of additional fees to the shipping commissioner, and this to be the end and fulfilment of the privilege accorded to her by the law. Does not the act find its application in that numerous class of cases where a vessel is chartered for two successive voyages,' and where the two voyages are regarded as an entirety, and where for the second voyage the shipowner may well be relieved from the payment of additional fees to the shipping commissioner ? It is admitted that an officer is liable if he takes money mala fide; but where there is no fraud or imposition, actual or legal, there is no ground either in law or equity to reclaim money paid voluntarily under a claim of right. This is the well settled law of Pennsylvania: Good v. Herr, 7 W. & S. 253; Ege v. Koontz, 3 Barr 109; Taylor v. Board of Health, 7 Casey 73; Finnel v. Brew, 31 P. F. Smith 362 ; Federal Ins. Co. v. Robinson, 1 Norris 357. In all the cases cited by the plaintiff in error the money was paid under protest, and they were cases of fraudulent exaction. Here there was no protest nor exaction. For three years the parties agreed in their construction of the law, and the defendant in error confidently submits that that construction was the true one; that he was entitled to demand these fees; that the plaintiff in error was right in supposing them to be due, and paying them; and that it was not and could not be the intention of the Act of Congress to make the shipping commissioner perform the same duties in respect to every voyage of a ship, and allow him compensation in respect to only one voyage.
89 Pa. 193Ricard v. North Pennsylvania Railroad (1879)
The Act of April 4th 1868 provides that when any person shall sustain personal injury or loss of life, while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, his right of action against said company shall be such only as belongs to an employee in like cases. Held, that the act applied to one who was injured while unloading his own goods from the cars of the company, permission to do which had been granted by the agent of the company,
89 Pa. 195Hess v. Gourley (1879)
3, of Philadelphia county: Of January Term 1878, No. 263. 'Ejectment by John Gourley and Annie, his wife, in right of said wife, against Peter Hess and Maria Hess, his wife, and Catharine Earron. At the trial, before Einletter, J., it appeared that in 1836, Ann Harlan, who was a widow, kept a boarding-house and had among her boarders a shoemaker, named Alexander Barber.
89 Pa. 200Salter v. Griffith (1879)
By the 1st section of the Act of March 11th 1836 it is provided that where an action is brought in any court, upon a record remaining in said court, it is not necessary to file a copy of said record to entitle plaintiff to a judgment for want of an affidavit of defence. Held, that a recognisance for stay of execution is a record within the meaning of said section, and it is not necessary to file a copy thereof to entitle a plaintiff to judgment.
89 Pa. 201Black's Appeal (1879)
Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1877, No. 189. In Equity. ’ Bill in equity, filed by William K. Black, assignee in trust of the estate of Oliver Benner, against Anthony H. Seipt, assignee in trust of the estate of Christian Freyer, to compel a reconveyance to the plaintiff of certain premises, the legal title to which was in the name of the defendant. The bill alleges that on the BOth day of August 1872, the said Oliver Benner made an assignment to the plaintiff of all his property for the benefit of his creditors, and that the said Christian Freyer, on the 17th day of October 1872, made a like assignment to the defendant of all his property for the benefit of his creditors ; that prior to the said assignment to the plaintiff, the said Oliver Benner was the owner in fee of a'large piece of ground, situate on Sepviva street, in the city of Philadelphia, and for the purpose of having the same divided into building lots, and mortgages created thereon in his own favor, he vested the title thereto temporarily in one Harman Yerkes; that the said Harman Yerkes thereupon made and executed to the said Benner eighteen indentures of mortgages, each upon a separate portion of the said premises; and immediately thereafter, by direction of the said Benner, conveyed the legal title to Christian Freyer, by whose assignment for the benefit of his creditors the legal title vested in the defendant; that these conveyances were without consideration, and for the purpose of enabling Benner to raise money on the mortgages, for the .improvement of the property, and this purpose having failed, the bonds and mortgages were subsequently, by agreement of all the parties, surrendered and cancelled. Under these circumstances, the bill claimed that the plaintiff was entitled, as assignee of Benner, to a conveyance of the premises. The answer admits that the legal title to the premises in question passed from Benner to Freyer by the conveyances mentioned in the bill, and that the same were without any consideration. It avers, however, that Freyer and Benner had been copartners in business, and the premises were the property of the firm ; that the defendant held the title thereto, under the assignment from Freyer, in trust to dispose of the same for the benefit of the creditors of the firm, and that his right to do so had always been acquiesced in by the plaintiff; that the plaintiff, in the inventory of the estate of Oliver Benner, filed by him as assignee, described the premises as the “ property of Oliver Benner, Christian Freyer and Jacob S. Frederick, partners,” and in a suit in equity, wherein the present plaintiff and defendant were co-plaintiffs, the said premises were described as the property of the firm ; that the plaintiff Black was the holder of a judgment against Benner, which was a lien on the said premises, and the defendant being about to advance his own money to complete the unfinished buildings thereon, procured from Black an agreement, in writing, that he would not claim any lien on or right of payment out of the said premises on account of the said judgment, until the money advanced by the defendant had been first repaid to him, and that the said Black would, from time to time, execute releases of the lien of said judgment to the purchasers of the premises: provided, however, that .such releases should.not impair the right of the said Black to claim against the fund arising from the sale of the premises as real .estate, after repayment to the defendant of the money advanced by him for the completion of the buildings; that the buildings were completed with the moneys advanced by the defendant, and were afterwards sold by him at public sale, without any objection thereto on the part of the plaintiff; that some of the purchasers at said sale required that the plaintiff should join in the .deeds of conveyance with the defendant, but the plaintiff refused to execute any such deeds, unless the defendant would consent that the proceeds of the sale should be applied to the satisfaction of the said judgment of Black v. Benner, and of another judgment of Whitall v. Benner. In conclusion, the answer averred that the object of the plaintiff in seeking a reconveyance of the premises was not to protect the creditors of the said Benner, but to secure a special advantage and preference to himself and to the said Whitall in the distribution of the trust estate. Before the master, to whom the case was referred, the plaintiff did not claim that he was entitled to a conveyance of the entire premises. It was contended, on his behalf, that the consideration having consisted in the exchange of certain properties held by Benner and Freyer in severalty and in common respectively, Benner took the title in trust for himself and Freyer, as tenants in common, and upon the conveyance to the latter, he held upon the like trust for himself and Benner. The master so found, and reported that the plaintiff was entitled to a conveyance of an undivided moiety of the premises. Exceptions were filed to this report, which the court sustained and dismissed the bill. From this decree Black took this appeal. The property having been bought with the money of both Benner and Freyer, and the deed taken in the name of one, there was a resulting trust in favor of the other to the amount he contributed to the purchase. The property was entered in the firm books in the name of two of the partners, and yet there were three members of the firm. It was manifestly held only for two of the partners and did not constitute a portion of the partnership fund.
89 Pa. 205Esling's Appeal (1879)
Certiorari to the Court of Quarter Sessions of Philadelphia county: Of July Term 1876, No. 84. Appeal of Mary A. Esling and Amanda F. Hollahan from the confirmation by the board of surveyors of plan No. 272, of lines and grades between Ritner, Geary and Twenty-fifth streets and the Schuylkill river, Twenty-sixth ward. The city council, June 29th 1874, passed the following joint resolution:— “ Resolution directing lines and grades over a portion of the Twenty-sixth ward. “ Resolved, by Select and Common Councils of the city of Philadelphia, that the department of surveys be and is hereby authorized and directed to prepare plans in duplicate of the lines and grades of so much of the Twenty-sixth ward as is embraced between Twenty-fifth street and the river Schuylkill, Ritner and Geary streets.” Under this resolution plan No. 272 was made by the board of surveyors and confirmed by them September 7th 1874. An appeal to the Court of Quarter Sessions was taken by the appellants December 5th 1874, under the Act of June 6th 1871, which appeal averred that petitioners are freeholders within the boundaries of said plan and along the line of the new street laid down in the same, and along the line of Passyunk road as vacated in the same, who being duly sworn according to law, depose and say: That they appeal from the confirmation by the board of surveyors of the city of Philadelphia, of plan No. 272. Because: ■ 1. The joint resolution of councils under which said plan is made gives no authority to lay out a new street. ■ 2. Said resolution only authorizes a plan to be made of lines and grades. 3. Said resolution gives no authority to straighten and widen streets. 4. Said resolution gives no authority to vacate a street. 5. Said plan makes two Passyunk avenues from Thirtieth street to river Schuylkill without authority. 6. The new street is unnecessary. 7. The new street entails considerable loss and expense upon appellants without authority of law.- 8. The new street entails serious loss and expense upon appellants, and renders useless a portion of their property, without corresponding advantage to the public or to them. 9. The appellants are instructed that they were not allowed a proper opportunity to present their objections to said plan before the board of surveyors according to law. 10. The said joint resolution is not a sufficient authority for the changes made by said plan. 11. The said joint resolution is defective under the Act of Assembly of May 23d 1874, sect. 3, and is, therefore, void. 12. The said new plan is unauthorized by law. This appeal was dismissed June 2d 1876. A certiorari was sued out, and the record removed to the Supreme Court, wherein, on February 4th 1878, the following opinion was filed: Per Curiam. — “ As this record stands, we have nothing before us which we can hear and determine. The plan exhibited we have no doubt is a proper exhibit, but it is not attached tó, or certified with, the record. It exhibited a change in the Passyunk road or avenue, one of the oldest thoroughfares in the city of Philadelphia, whereby a new route is laid down, of the width of one hundred and twenty feet, and a part of the old route vacated, very materially affecting the interests of the appellants to the Quarter Ses1 sions. It is not our province to review the action of the board of surveyors, or of the Court of Quarter Sessions, excepting so far as' their action involves a question of power appearing in the case. Now, it is alleged that the board acted upon an ordinance of the city, containing no authority to lay out new streets and vacate old ones, but merely a power to regulate the lines and the grades of streets, already surveyed on the general plan and to report their work in a plan. The plan reported, it is alleged, exhibits an-unauthorized action of the board, in vacating an old, and locating a new street, and hence the appeal. On the other hand, it is said, the form of the ordinance is the same as that always used, and implies an authority to alter, not only lines, but routes. As the rights of the appellants depend on this question of authority, we are disposed to hear an argument upon the character, use and effect of the ordinance or resolution, as it is termed, of June 29th 1874. “ To this end, leave is given to withdraw the recordnn file, for the purpose of amendment, and a new return to the writ of certiorari, as if upon a certiorari sur diminution of the record. • The appellant can then move the court below, to enter in full- nunc pro tunc the decree involved in the entry of appeal dismissed June 29th 1876, and forthwith to certify to us a copy of the resolution of June 29th 1874, and the map, or a true copy thereof, brought into the Court of Quarter Sessions, by the appeal of the plaintiffs in error. Ordered, February 4th 1878.” The record was remitted for correction in accordance with this opinion, and leave granted by the court below to file a certified copy of plan 272, and of the resolution of councils of June 29th 1874, which was done, and a decree entered nunc pro tunc, dismissing the appeal and confirming the said plan. The record thus corrected was returned to the Supreme Court, the error assigned being the dismissal of the foregoing exceptions to the plan. The errors we assign are to the extent of the authority conferred by the resolution of councils, and to the validity of the resolution itself. The powers of the board of surveyors are conferred by the Acts of April 21st 1855, Purd. Dig. 1288, and June 6th 1871, Pamph. L. 1353. Under the authority thus conferred they must act in accordance with the directions of councils. The' resolution in question only directed plans tobe prepared of the lines: and grades. It did not authorize a new street to be made, and an old one to be vacated. The board’s action was clearly ultra' vires: Paynter v. Young, 4 Phila. R. 154; Ferree v. Board of Surveyors, 9 Id. 518; Duhring’s Appeal, 30 Leg. Int. 153. The Act of May 23d 1874, Pamph. L. 231, provides that, “No ordinance shall be passed through councils except by bill,” * * *■ “ and that, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.” Either the resolution does not confer such broad powers as are here claimed, or, if it does, the title does not clearly express the subject nor express it at all, and therefore it is void ünder the above act. Whether the resolution authorizes the laying out of streets or merely directs plan to be made of the existing streets does not appear by the record, and we contend that this court will not, therefore, review the question on this writ of certiorari. It is only necessary that the title should fairly give notice of the subject of the act, so as reasonably to lead to inquiry into its body: Blood v. Mercelliott, 3 P. E. Smith 391; Church St., 4 Id. 353; Dorsey’s Appeal, 22 Id. 192 ; Allegheny County Home’s Case, 27 Id. 77 ; State Line and Juniata Railroad Co.’s Appeal, Id. 429; Mauch Chunk v. McGee, 31 Id. 433.
89 Pa. 210Hestonville, Mantua & Fairmount Passenger Railroad v. City of Philadelphia (1879)
Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1876, No. 306. In Equity. Bill in equity, filed by the City of Philadelphia against the Hestonville, Mantua and Fairmount Passenger Railroad Company, to prevent the defendant from laying a second railroad track on Callowhill street, in the City of Philadelphia. The bill set forth, I. That defendant was incorporated under an act, approved the 6th of April 1859, entitled, “ An Act to incorporate the Heston-ville, Mantua and Fairmount Passenger Railroad Company,” and thereby obtained the right to lay passenger railway tracks in certain Streets of the City of Philadelphia. ÍI. That by an act entitled, “ An Act to incorporate the Fairmount Passenger Railroad Company,” approved the 13th of April 1858, the Fairmount Passenger Railroad Company was incorporated with power to lay out and construct a railroad in the city, upon a route designated in said act, including, inter alia, the right to lay a double track on Callowhill street, from Twenty-second street to Fairmount. III. That in the seventh section of the act last referred to, it was provided that “ before the said company shall use and occupy said streets, the consent of the councils of Philadelphia shall be first obtained; * * * and said councils may from time to time establish by ordinances such regulations in regard to said railway as may be required for paving, repairing, grading, culverting and laying of gas and water pipes in and along said streets, and to prevent obstructions thereon.” IV.' That councils, by “an ordinance relating to certain passenger railway companies,” approved the 16th of April 1858, did ordain, in section first, that they thereby declared their disapproval of the aforesaid Act of April 13th 1858; and in section second, “ That if any company in the said preamble named [including the said Fairmount Passenger Railroad Company] shall within ninety days from the passage of this ordinance, and before such company shall occupy any of the said streets or highways, file in the office of the city solicitor a written obligation, sufficient in law to bind such company, to observe and be subject to all the ordinances of the city in relation to passenger railways then in force, and thereafter to be passed, then the provisions of the first section of this ordinance, as to each and every such • company as shall file such written obligation as aforesaid, shall cease to have effect.” V. That on the 5th of June 1858, the Fairmount Passenger Railroad Company did file in the office of the city solicitor such a written obligation. VI. That on the 30th of May 1859 the defendant entered into an obligation with the city, by which, inter alia, it became bound well, faithfully and truly to comply with, observe and be subject to, all the ordinances of the Select and Common Councils of the City of Philadelphia, then in force, or thereafter to be passed, regulating passenger railways. VII. That under “ An Act to incorporate the Fairmount and Arch Street Passenger Railway Company,” approved the 16th of April 1858, and a supplement approved the 24th of March 1859, the Fairmount and Arch Street Passenger Railway Company became entitled to, and shortly after the passage of the said supplement did, construct a single track along Twenty-second street, from Callowhill street to Hamilton street, and thence west along Hamilton street to Callow-hill street. VIII. That it was, inter alia, ordained in the second section of “ an ordinance to regulate passenger railways,” approved the 7th of July 1857, that passenger railroad companies within the city of Philadelphia should “submit all proposed plans, courses, styles of rails and the manner of laying the same, to the board of surveys and regulations for their approval and sanction, which shall be obtained before they proceed to break ground or occupy any of the highways” of the said city. IX. That in the first section of “ an ordinance relating to the highways of the city of Philadelphia,” approved the 28th of February 1860, it was, inter alia, ordained, “ that it shall not be lawful for any person or persons, bodies corporate or otherwise, to remove any of the cobble pavements of the highways of the city, for any purpose whatever, without first procuring a permit from tbe department of highways, under a penalty of five hundred dollars for each offence, &c.” And in tbe second section of the same ordinance: “ That it shall not be lawful for the department of highways to grant any permit for the removal of any of the pavement of the city, as described in the first section, for the purpose of laying down rails for .passenger railway purposes, until after first procuring the assent of the councils of the city thereto.” X. That on the 21st of June 1858 the board of surveyors of the city approved a plan for the construction of the said Fairmount Passenger Railroad, which provided, inter alia, for a double track upon the said Callowhill street, from Twenty-third street to Fairmount, and shortly thereafter the said railroad company laid and constructed its road in the said Callowhill street, with a double track from the said Twenty-third street to Fairmount. XI. That the company defendant claim to have acquired, in the years 1864 and 1865, the rights and franchises of the said Fair-mount Passenger Railroad Company, and the said Fairmount and Arch Street Passenger Railway Company, by merger and consolidation of the said three corporations under the name of the company defendant, and thereby to have acquired the right to construct, lay and use a double track upon Callowhill street, from Twenty-second street to Fairmount. XII. About the year 1865 the said company defendant abandoned, ceased to use, and removed, the double tracks above referred to, between Twenty-third street and Hamilton street, and instead thereof laid and constructed a single track in the middle of the said Callowhill street, between the points just before stated, which single track the said company have used from about the year 1865 to the present time, in connection with the said single track on Hamilton and Twenty-second streets. XIII. That the said defendant, on the 23d of April 1875, having and using at that time a single track in the said Callowhill street, between Twenty-Second and Twenty-fifth streets, under the power which they claim to have derived from the said Fairmount Passenger Railroad Company, as before stated, began to take up and remove the cobble stones from and along the said street, between the two points just before stated, for the width of twenty feet or thereabouts, for t£e purpose, and with the avowed intention, of constructing and laying a double track therein, and from the said Twenty-fifth street, along said Callowhill street to the Schuylkill river or thereabouts, and this, your orator is advised, they threaten and intend to. do. XIY. That in article 17, sect. 9, of the Constitution, it is provided: “No street passenger railway shall be constructed within the limits of any city, borough or" township, without the consent of its local authorities.” XV. That neither the said defendant, nor the said Fair-mount Passenger Railway Company, have procured any permit from the department of highways, to remove the cobble pavement in the said Callowhill street, nor have the councils of the said city assented thereto. XVI. That the defendant have not submitted to, nor had approved by, the board of surveys, any “ plans, courses, styles of rails, or the manner of laying the same,” with reference to the construction of the said double track which they propose and threaten to lay as above stated- XVII. That even if it be true that the company defendant has acquired the rights and franchises of the said Fairmount Passenger Rauroad Company, the company defendant have no rights or franchises under which they can now lay and construct a double track in Callowhill street, from said Twenty-second street to Fairmount, or between any intermediate parts, by reason of the fact that the said Fairmount Passenger Railway Company abandoned such rights or franchises about the year 1865, in the manner before stated in paragraph XII. XVIII. That the said company defendant are proceeding without authority of law to remove the cobble pavement from ‘Callowhill street, and to construct a double track therein, in the manner before stated. Your orator therefore needs equitable’relief: 1. That the company defendant may be restrained until hearing, and perpetually thereafter from further tearing up or removing the cobble pavement in said Callowhill street, between Twenty-second street and Fairmount and from laying any other passenger railroad tracks thereon, other than the single pair of tracks which the said company used previous to the taking up and removal of the cobble pavement, which is above complained of. 2. - That the defendant may be ordered and directed to replace the said pavement in the same condition. in which it was before the removal thereof. The bill Avas subsequently amended by adding to paragraph XI. the averment: “ That the said merger and consolidation Avere not authorized by law, and they did not avail to invest the said company defendant Avith any of the franchises of the .said two corporations alleged to have been consolidated with the said company defendant. And by inserting as a new paragraph after paragraph XVII., the folloAving, to wit:— . “ That your orator is advised arid therefore avers, that even if the said company defendant at any time had the franchise to lay a double track in said Callowhill street, from Twenty-second street to Fairmount, the said company by electing to remove the double 'track and to construct a single track in the place thereof (which single track as before stated they used in connection with a track in Twenty-second and Hamilton streets), exhausted its franchises so far as it applied to the laying of rails in that part of Callowhill street, from which the double track was removed, as before stated, and have now no power to replace such double track in the said street.” The answer of the defendants set forth: 1. That they were created by an Act of April 6th 1859, Pamph. L. 889, with the route therein described, with the power to lay out and construct a railway. By a supplement to said act, passed March 8th 1860, Pamph. L. 123, they were expressly authorized to lay out and construct their railway tracks, from the bridge at Fair-mount to Callowhill street, and along Callowhill street to Delaware avenue, and to occupy such other street or streets as may be necessary to reach Twenty-first or Twentieth and Callowhill streets from said bridge. 2. Under these acts there was constructed a track from the bridge at Fairmount westwardly to Hestonville. 3. That by an Act passed April 13th 1858, Pamph. L. 257, there was created the “ Fairmount Passenger Railway Company,” with power to construct a passenger railway from the south side of Fairmount to Callow-hill street; thence east on Callowhill to Twenty-third; thence south to Vine; thence east to second; thence south to Walnut or Dock; thence w'est to Third ; thence north to Race ; thence west to Twenty-second; thence north to Callowhill street, with a double track on Callowhill street, to Fairmount. Section 7 provided: “ That before the said company should use and occupy the said street, the consent of the councils of the city of Philadelphia shall be first obtained.” This consent was given. • 4. That by the Act of April 16th 1858, Pamph. L. 320, there was created, “The Fairmount and Arch street City Passenger Railway Company,” with power to construct a passenger railway “ commencing at Tenth and Arch and continuing westwardly along the same, with a double track to Twentieth and Twenty-first streets, respectively, with single track to Callowhill street, and thence westwardly with double track to bridge.” Section 7 provided: “That before the said company shall use and occnpy the said streets, the consent of the councils shall be first obtained.” On May 5th 1858 (Ordinances of 1858, 177), the councils disapproved of the act and refused consent. By a supplement to the aforesaid act, passed March 24th 1859, Pamph. L. 234, it was enacted that said company should have full authority to construct and lay a passenger railway on the route hereinbefore stated. Section 3 provided, that “ after the special consent of the councils, said company may, in lieu of two tracks on that part of Callowhill street which is between Hamilton and Twenty-second, construct one of their tracks on Twenty-second from Callowhill to Hamilton, and thence west on Hamilton street to Callowhill street.” That consent was given by an ordinance passed April 28d 1859 (Ordinance of 1859, 198). In accordance with the authority of said acts, railway tracks were laid on Twenty-second street, from Callowhill to Hamilton and thence west on Hamilton street to Callowhill street. 5. Callowhill street, from the bridge at Fairmount, is between curbs twenty-nine feet in width, and the existence of more than a double track at that point would sacrifice the other uses of the highway. If, therefore, the defendants exercised their right as a separate corporation, to lay a double track on Callowhill street between these points, and the Fairmount Passenger Railway Company sought to exercise theirs, and the “ Fairmount and Arch Street City Passenger Railway Company” sought to exercise theirs, the whole width of the street would be occupied without space between each set of tracks. 6. Such an exercise of separate corporate discretion and right would be impossible of execution, as cars could not pass each other, and therefore the several companies did by agreements arrange such running of their cars over the tracks actually laid by the Fairmount Passenger Railway Company and by the Fairmount and Arch street City Passenger Railway Company, as secured to each their separate circuits, the integrity of the several franchises and the- accommodation of the passengers seeking the cars of either. The former company have laid a track from the bridge, along Callowhill street to Twenty-third street; and the latter company have laid a track from the bridge, along Callowhill street to Hamilton, and thence eastwardly along Hamilton to Twenty-second street. These are the tracks now in existence and now used. 7. That by reason of an entire alteration of grades, caused by the construction of the double-decker bridge at Fairmount and of the necessities of public travel, they have become convinced that the franchise of a double track on Callowhill street must be maintained. Accordingly they have made arrangements to remove the tracks laid by the Fairmount Passenger Railway to the side of said Callowhill street and to lay another track beside it on their own behalf. The effect of this would be that the double tracks now existing on Callowhill street, from the bridge to Hamilton street would be continued eastward on the same alignment. Respondents admit the truth of the first five paragraphs .of the bill. Respondents deny that they entered into an obligation as averred in the sixth paragraph of said bill; but are advised that it is .immaterial, inasmuch as the tenor of sueh an obligation would only be that respondents should comply with such ordinances as it was within the power of the city of Philadelphia to pass. Respondents admit the truth of - the seventh paragraph of said bill, and that the averments in the eighth paragraph are true; but respondents are advised that said ordinance, so far as the same is,now valid, applies exclusively to the original construction, and that in the case of entire compliance therewith, the purpose thereof is fully met; and respondents do say that their charter does not confer any power on the plaintiffs to regulate or control them on Callowhill street, east of the bridge at Fairmount. And respondents are advised that the assent of the General Assembly is sufficient and ample, and that no provision of their charter subjects them to a further assent by the councils of the city of Philadelphia to the use of Callowhill street. Respondents admit the truth of paragraph nine, but are advised that said ordinance is not passed pursuant to the conditions of the Act of April 11th 1868, as above cited; and that as its purpose was to secure the assent of the councils of the city .to remove the cobble stones of the highways, it cannot apply to a body corporate, whose occupation and use of streets for the purposes of their chartered route had already been assented to. Respondents admit the truth of paragraph ten, and of paragraph eleven: but are advised that the same is immaterial as to the subject-matters of this bill of complaint, inasmuch as these respondents, without such merger and consolidation, have the grant as aforesaid to lay the track on Callowhill street now proposed. • And respondents say, that if paragraph twelve in said bill means to aver the fact differently from that stated in the general paragraphs of this answer, then they deny the same to be so. Defendants have never surrendered any portion of their franchise to the Commonwealth ; that as the chartered powers of defendants do not limit the construction of their road to any term, that completion thereof, or the change of the mode of running, is for their discretion, as the owners of the franchise; and even though this were not so, plaintiffs have no standing in this court to assert a loss of franchise by nonuser, this being wholly for the Commonwealth, at her own relation. The case was argued upon bill and answer, and the court below, Allison, P. J., without filing an opinion, entered a decree “that defendants be perpetually enjoined from laying any other passenger railroad tracks on. Callowhill street, between Twenty-second street and Fairmount, other than the single track which is now laid thereon and used by them.” This decree was assigned for error by the company which took this appeal. We are within the Act of May 16th 1861. We are a railroad company. The merger was recognised by the city. Three roads had a right to lay their tracks on Callowhill street. Each of the three roads had the authority of the city to lay one track. We represent the consolidated road, and instead of laying three tracks we laid one on Hamilton street, and were proceeding to lay two on Callowhill when we were restrained. We have not lost our right by non-user. An express grant is not lost because it is temporarily not acted upon. Because we once took up the track does not estop us from laying it down again. So long as we* keep within the prescribed limits we can change our alignment: Snyder v. Pennsylvania Railroad Co., 5 P. F. Smith 340. A permit was not necessary. We had once obtained the assent of councils to the use of the streets, and with that assent its power ended to control the franchise: Masser v. Arch Street Railway Co., 3 Am. Law Reg. 284. The merger was unlawful and the appellant did not thereby acquire any of the franchises of the Fair-mount Passenger Railway Company. ■ The Act of 1861 does not apply to city passenger railway companies: City v. Thirteenth and Fifteenth Streets Passenger Railway Co., 8 Phila. R. 651. But if the merger was lawful, the Fairmount Passenger Railway Company had exhausted their right to lay a track on said street. It is not possible that their grant’ entitled them not only to lay one track, but also as many others as they pleased, to take up that laid down, and to substitute another for it, and again, to remove the new track, and to put down still another,-similar to that originally laid. The right to lay their tracks was made conditional upon the consent of councils. Councils assented simply to the construction of the track first laid down. Their assent was also qualified by .conditions, making the road subject, not only to ordinances then in force, but also to those which might thereafter be passed. The ordinance of February 28th 1860, expressly prohibits the removal of the cobble pavements of the city without a permit from the department of highways of the city, and also forbids that department to grant any such permit for the purpose of laying down rails for passenger railway purposes until after the assent of councils thereto. No permit has been granted- to the appellants, nor have councils assented thereto.
89 Pa. 220Wainwright's Appeal (1879)
Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1877, No. 168. Appeal of Israel R. Wainwright and others, the heirs at law of William Wainwright, deceased, from' the decree of the court refusing their demand for an issue devisavit velnon, and affirming the, decision of the Register of Wills admitting to probate a writing purporting to be the last will of said William Wainwright, deceased. The alleged, will was signed by deceased on January 10th 1876, between 11 and 12 o’clock p. m., and he died about 8 p. m. on the following day. The will provided for the paj'ment of his debts; the disposition of his mother’s and father’s portraits; that $5000 should be given to the son of each of his partners; that $5000 should be given to “Mena Ueberroth, the daughter of his friend Amanda Ueberroth,” and the residue of his estate he gave to said Amanda Ueberroth. This residue comprised the larger portion of the estate. ■ A caveat was filed on the 14th dáy of January 1876, and on the day following the alleged will was presented for probate by James Trimble, the executor, and the subscribing witnesses thereto were sworn. The counsel for the caveators then filed a petition with the register, in which they denied that it was the will of the decedent and averred “that the said paper writing has been procured by means of undue influence practised upon the said William Wain-wright by one Amanda Ueberroth, a devisee named in said alleged, will, with whom the said William Wainwright had for about a year previous to his decease been living and cohabiting in unlawful relations, and by one James Trimble, the father of one of the devisees and the executor named in said alleged will,” and prayed for an issue devisavit vel non to the Court of Common Pleas, as well as the appointment of an administrator pendente lite. The cross-examination of the subscribing witnesses was then proceeded with and followed by that of James Trimble, the executor above named. Other witnesses were called and examined by the caveators. On May 4th 1876, while the examination was still pending, the heirs at law renewed their demand for an issue, accompanied with the request that the material matters relating to the said demand which were in dispute before the register, he certified to the Orphans’ Court for its decision; and thereupon the register announced that he had decided to admit the alleged will to probate. The heirs at law appealed from his decision and the proceedings were thereupon removed to the Orphans’ Court. An examiner was appointed to take testimony, which was duly reported to that court. On December 22d 1876, the cause came on for a hearing and was argued before Judges Dwight and Hanna. The judges being divided in their opinions as to the right of the appellants to an issue, the decision of the register was affirmed. In his opinion, Dwight, J., inter alia, said: “I think that where the appellants present evidence to sustain the issue prayed for, which is of such a character that, if believed by the jury, their verdict for the appellants would be sustained the demand for an issue should be granted; and more especially is this the case, when their testimony is met by counter-testimony for the appellees, for there is then clearly a dispute upon material matters of fact which the jury may settle one way or the other as they credit the witnesses. The evidence in this cause is that the testator made his will about sixteen hours before his death; that he was living with the principal legatee in unlawful relations; that while his brothers, if I read the testimony rightly, were excluded, she was present in his sick room up to the time when a gentleman of the bar, who had been sent for to draw the will of the testator, entered it to receive his instructions; that while this gentleman was- drafting the will this legatee was alone with the testator for half an hour; that at the end of that time the executor, whose son was also a legatee, having been informed by the legatee in question that testator desired to marry her, went into the testator’s sick room, had an interview with him, and on coming out again told the appellants that he had fixed the matter, and told the legatee that the contemplated marriage need not or ought not to go any further, because she was already well provided for by the will. I think that these facts, taken in connection with the illicit position of this legatee, and her manifestly increased influence over the testator during the last few months of his life, should be laid before a jury, in order that they might determine how far the principal legatee prompted or how far she and the executor united in controlling the testator’s mind in his testamentary dispositions. As the request for the issue must be refused, and as Judge Hanna is clearly of the opinion that the decree of the register should not be reversed, I would only add that upon the appeal the decree of the register is affirmed.” In his opinion Hanna, J., inter alia, said: “We agree there is no evidence of testamentary incapacity, but differ as to granting the issue upon the second proposition submitted by the appellants. For myself, I am "of opinion that the evidence is not of such a character as to warrant submitting the question to a jury. I do not discover any evidence that undue, illegal, or improper influence was exerted upon the mind of the testator in the very act of making the testament, nor at any other time. While it is true that he and the principal legatee were living together as husband and wife, without the marriage ceremony having been solemnized, yet this is no evidence of nor does it raise any presumption of itself that she exercised any improper influence or control over the mind of the testator. Proof of an unlawful relation must be accompanied by evidence of some act of persuasion,’ solicitation or controlling power over the mind, will and judgment, whereby the testator was forced or induced to dispose of his estate in a manner different from that which he would have selected if he had been a free agent. “ There is no proof of any act of the principal legatee tending in this direction, nor is there any evidence that the executor, who was the senior partner of the testator, used any improper means or influence to induce testator to dispose of his estate otherwise than he, of his own volition and pleasure, intended. It was not illegal or improper for Mr. Trimble to suggest to and advise with the testator as to the disposition of his property or the object of his bounty, and if this can be gathered from the testimony, it shows that his efforts all tended to reconcile testator to the wishes and objections of his brothers, the appellants, to his proposed marriage with the principal legatee. “ I also understand the rule to be that if the question of fact be unsupported by sufficient evidence the court should refuse the issue. A mere scintilla of proof is not sufficient to entitle a party to his issue. “ But the evidence must be such that if an issue be granted, and a jury should find a verdict against the will, we, if sitting in a court of law, would be satisfied that the finding was in accordance with the evidence or the weight of the evidence, and would refuse to disturb the verdict. “As was said by Paxson, J., in Cauffman v. Long, 1 Norris 72, ‘a man’s will, the most solemn instrument he can execute, shall not be set aside without any sufficient evidence to impeach it.’ See also De Haven’s Appeal, 25 P. F. Smith 337 ; De Puy’s Estate, 1 W. N. C. 212; Will of Ellen DeB. ’Shaw, Id. 332. “ To my mind the evidence clearly shows that the will of William Wainwright was the free, uncontrolled and voluntary expression of his wishes for the future disposition of his estate. It was prepared by his counsel in accordance with instructions received in the solitude and silence of the death chamber. No one was present to solicit or suggest a benefaction, and the testator, alone with his counsel, calmly remembers and seeks to befriend those who he believed would appreciate his gifts and had won his heartfelt esteem. “Being of opinion, therefore, that the evidence, if submitted to a jury would not justify a verdict against the will, I think that the demand for an issue should be refused, and the appeal dismissed.” O’Brien, J., did not sit during the argument of the cause, and the court being equally divided, the appeal was dismissed. The letter of May 2d 1874, referred to in the opinion of this court, was a long letter, wherein the residuary legatee charged that about seventeen years theretofore, the testator had encompassed her seduction; referred to the writer’s attempts to conceal her shame; to her flight to the south; to the birth of a child as the fruit of their intercourse ; to the death of this child ; to her being forced to live a life of prostitution; to the life of torture she had lived and was still living, and after alluding in the most endearing terms to the testator, begged him by all that was good not to despise her; to protect her and take her from the hellish life, the slough she was in. The testimony on both sides was very voluminous. From the time the residuary legatee commenced to live with testator, it appeared she in every way endeavored to atone for her past life; was constant in her attentions to him; made herself useful to him; induced him to abstain from drinking, to which he had been addicted ; read his Bible to him and herself attended church regularly, and in her general deportment bore herself as his wife, and as such’ was recognised by a number of people and to some introduced as his wife by the testator himself. From the decree of the court refusing the issue and aflirming the register’s decision the appellants took this appeal. The court is bound to award an issue if there is a material fact in dispute: Cozzens’s Appeal, 11 P. F. Smith 196. The effect of such an improper relation as existed between these parties was a question of fact for a jury: Main v. Ryder, 8 Norris 217. The testator labored under a delusion that he had seduced the legatee, as she had falsely charged in her letter] and -can it be said that the influence of this charge was not operating on his mind when he made his will. He stated to several witnesses that he had seduced heiy and this thought seems .to have moved him in the care and provision he made for her. It is not unreasonable to suppose, therefore, that it was the controlling agency which influenced him in making his will. It should have been submitted to a jury to determine whether this false charge of seduction was not an undue influence : Monroe v. Barckly, 17 Ohio N. S. 302; Dean v. Negley, 5 Wright 312. It is immaterial when the undue influence was applied, if it continued to operate as a controlling cause at the making of the will: Taylor v. Wilburn, 20 Mo. 306; Davis v. Calvert, 5 Gill & Johns. 269; Reeme v. Parthemere, 8 Barr 460. We contend that these then were the influences which were operating on the testator when he made his will: 1st. The unlawful relations which gave her power and control over him when in apparent health. 2d. The belief that he had seduced her when she was a young girl. 3d. The desire to compensate her for the wrong that he supposed he had done. 4th. The fact that he was about to die, and the desire natural with him to make his peace with his maker, which was aided by the religious influences that Amanda caused to be thrown around him. 5th. The persuasive power and influence over him of her attentions to him at that time: 6th. His inability, from the advanced stage of his disease, to resist her importunities. No will can be avoided because the existence of an unlawful influence is proved, unless such influence is unduly exerted over the very act of devising. It must be a present constraint operating directly on the mind of the testator: Dean v. Negley, 5 Wright 317; McMahon v. Ryan, 8 Harris 329; Eckert v. Flowry, 7 Wright 51; Thompson v. Kyner, 15 P. F. Smith 368. The letter complained of was drafted by the testator himself, and was copied and signed by the legatee at the testator’s request. It was written with the avowed purpose of 'deceiving his partner in order to win his good opinion for the legatee. Improper relations between testator and legatee do not create a presumption in law of undue influence: Rudy v. Ulrich, 19 P. F. Smith 177; Main v. Ryder, 3 Norris 217. But the relations here were not improper; they lived as man and wife.
89 Pa. 226Workman v. Curran (1879)
Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 133. Trespass on the case by Adele Curran against H. W. Workman for damages for the obstruction of a right of way. Plaintiff owned a house on south Front street in Philadelphia. Adjoining this property on the north is a court called “Workman’s Court,” which, together with the land adjoining said court on the north, was owned by defendant. The plaintiff claimed the right of way over this court by prescription. On October 9th 1833, the defendant and his brothers and sisters,' then living, who were seised in fee as tenants in common of the locus in quo, brought an action of trespass in the District Court of Philadelphia against Lewis Roberts and Thomas Wilson, the plaintiffs’ predecessors in the title. It was admitted at the trial of this cause at bar that the right of way then in dispute was, and is, the same now here in dispute. That action of trespass was not tried until 16th May 1850. On 20th May 1850, verdict was rendered for Workman et al., plaintiffs, and on 14th September 1850, judgment was entered in favor of the plaintiffs, and .the record having been removed by the defendants to the Supreme Court, the judgment of the court below was affirmed- on 9th February 1852, and on 3d April 1875, the record was remitted to the court below. On 30th January 1873, the defendant fenced up the court, and on 2d ApriL1873, plaintiff brought this action. The defendant, at the trial, submitted the following points, which the court,'Pratt, J. refused: 1. That such adverse possession [i. e., peaceable, quiet, adverse possession for a period of twenty-one years] could not exist while the case of Workman v. Roberts was pending, or until the judgment therein was finally affirmed by the Supreme Court. 2. That the record of said case shows that final judgment therein was rendered by the Supreme Court February 9th 1852, and the evidence shows that the fence, the erection of which led to the institution of this action, was erected January 30th 1873, being within twenty-one years from the entry of such judgment, and therefore plaintiff cannot recover in this action. 3. That this final judgment of record, unsatisfied and capable of execution at any time, was a continuous and perpetual assertion of right exclusive in defendant and denial of any right on the part of plaintiff by defendant to use and occupy the alley in question, and therefore plaintiff cannot recover in this action. The court, inter alia, charged: “ I give it to you as the law, which you are bound to take from the court, that if you find from the commencement of this suit, the suit which was begun in 1833, the plaintiff in this case had adverse, uninterrupted, peaceable and quiet possession of the use of this alley, as described in the declaration, and that no notice was given to him of any denial on the part of the defendant of the right, your verdict should be for the plaintiff.” The verdict was for plaintiff. After judgment defendant took this writ, and assigned for error, inter alia, the refusal of the above points and the portion of the charge noted. The court should have directed a verdict for defendant, because twenty-one years had not elapsed between the 9th of February 1852, the date of the entry of the final judgment in the case of Workman v. Roberts, and the 30th of January 1873, the date of the erection of the obstruction complained of, and because pending that suit the prescription could not run in favor of plaintiff. The title to an easement can be gained by prescription only where there has been for twenty-one years an actual, adverse, continuous, uninterrupted user under a claim of right. A prescriptive title can always be rebutted by proof of circumstances, tending to show that no grant could have been or probably was made, or that the owner of the servient tenement did not acquiesce: Washburn on Easements 111; Goddard’s Law of Easements 90, 110; Cooper v. Smith, 9 S. & R. 32; Strickler v. Todd, 10 Id. 63; Hoy v. Storrett, 2 Watts 330; Butz v. Ihrie, 1 Rawle 218; Garrett v. Jackson, 8 Harris 335 ; Okeson v. Patterson, 5 Casey 26 ; Pierce v. Cloud, 6 Wright 113 ; Worrall v. Rhoades, 2 Whart. 428; Esling v. Williams, 10 Barr 126 ; Jessup v. Loucks, 5 P. F. Smith 361; Fishing Co. v. Carter, 11 Id. 21; Biddle v. Ash, 2 Ashm. 211. And title by prescription will be defeated, if the owner of the servient tenement resists or opposes the user, especially if his resistance is manifested by proceedings at law. The maxim is “ Ita quod, nee per vim, nee clam, nec precario:” Washburne on Easements 112. “ The word, ‘ vim,’ means contention of any kind, as, that the enjoyment has been during a period of litigation about the right claimed * * * if the user has been in. this sense not peaceably enjoyed, no easement can be thereby acquired:” Goddard’s Law of Easements 124 ; Eaton v. The Waterworks, 17 Q. B. 267, 269; Livett v. Wilson, 3 L. J. [C. P.J 186; Solomon v. Vintners’ Co., 4 Hurst. & N. 602 ; Stillman v. White Rock Co., 3 Wood. & M. 549; Bealey v. Shaw, 6 East 216. So also, the presumption of payment of a debt is conclusively rebutted by proof of pendency of prior legal proceedings for the recovery of the debt, though those prior proceedings were not pressed to judgment: McCullough v. Montgomery, 7 S. & R. 28; Summerville v. Holliday, 1 Watts 518. Facts being established their sufficiency to rebut a presumption of law is for the court, not for the jury: Delany v. Robinson, 2 Whart. 503 ; Reed v. Reed, 10 Wright’243. In this case, the plaintiff had always kept the alley, which is the locus in quo, open for the use of his tenants in the court. How then could the defendant in error’s user thereof be so injurious to the plaintiff in error, as to call upon him to resist it ? No title by prescription could therefore arise, in favor of the defendant in error: Washburne on Easements 89 ; Donnell v. Clark, 19 Me. 174; Thomas v. Marshfield, 13 Pick. 240 ; Cooper v. Smith, 9 S. & R. 33.
89 Pa. 231Scott v. Kittanning Coal Co. (1879)
1. A contract to deliver fifty thousand tons of coal in a year, the shipments to be made at the rate of six thousand tons per month, at the buyer’s option, upon notices to be furnished on a certain day in each month for the quantity required for the succeeding month, is a severable contract. 2. Where there has been a part performance of such a contract, and coal has been received, paid for and consumed, the fact that for a portion of the coal thus received, other and inferior coal was substituted, does not give a right to rescind the contract; the appropriate remedy for injury received by such substitution is by set-ofÜ'or án action for damages. 3. It was not error to -reject evidence of a false statement of the president of the coal company, as to the cost of the coal, made during the negotiations for said contract. 4. The pleas were “ payment” and “ non assumpseruntV During the trial defendants moved to amend by pleading set-off specially, which was denied. Held, that had notice been given under the plea of payment, the set-off could have been proved with like effect, as if specially pleaded, and consequently the motion was really for leave to give notice of special matter which was within the discretion of the court. The case was not within the Act of 1806, which permits a defendant to “ alter his plea or defence, on or before the trial of the cause.” 5. Under the plea of non assumpsit, the defendant is entitled to give in evidence anything which shows that at the time the action commenced, the plaintiff had no right to recover, and under said plea defendants, in a suit for damages on the above contract for not taking a residue of the coal contracted for, had a right to show that of the coal delivered under the contract, a portion of other and inferior coal was substituted, and that damages were thereby sustained by defendants. 6. The same evidence is admissible as tending to prove that the plain.tiff was not ready and willing to deliver the coal stipulated in the contract. 7. What was the true measure of damages in the ease as above stated, considered by Trunkey,- J.
89 Pa. 242Clark v. Miller (1879)
Error to the Court of Common Pleas, No. 8, of Philadelphia county: Of July Term 1877, No. 27. Ejectment by O. Henri Clark and others against Cornelius Miller, to recover a lot of ground of about five acres, in Germantown. Defendant pleaded “Not Guilty.” A jury was waived and the case tried by Finletter, J., who found the facts as follows : “ The plaintiffs are the children of Ann Eliza Maison, named in a certain deed of July 2od 1825. By the terms of that deed John Maison, the then owner in fee of the premises (for which suit is brought), conveyed the same to John Miller and John Weiss, their heirs and assigns, upon trust for Ann Eliza Mai-son for life, and after her death to her children and their issue. Weiss and Miller refused the trust, and Peter Maison was duly substituted for them as sole trustee, under the trusts of said deed. This action was begun on the 4th of February 1871, and the writ duly served upon the defendant, the tenant in possession, whose landlord is admitted to be A. L. Roumfort, who is admitted to defend the action. This defendant, Roumfort, also claims title under the original owner, John Maison, and rests his title upon the following facts: An Act of Assembly (Pamph. L. 1844,117) of 14th March 1844, was passed as follows: “ An act to authorize Peter Maison to sell and convey certain real estate: “ Sect. 1. Be it enacted, &c., that Peter Maison, trustee of the estate of Ann Eliza. Hansen, be and is hereby authorized to sell at public or private sale, as he may deem most advantageous, all or any part of the estate and premises, granted and conveyed by John A. Maison to John Miller and John Weiss, by deed dated the 23d of July 1825, recorded in the office of the recorder of deeds, at Philadelphia, in trust for certain uses and purposes therein set forth, and to make and execute a good' and sufficient deed or deeds to the purchaser or purchasers thereof, in fee-simple, altogether discharged, from the trusts of the said deed of John A. Maison to John Miller and John Weiss, and from any obligation on the part of the said purchaser or purchasers to see to the application of the purchase-money. Provided, that before the said Peter Maison shall make or execute any such deed, he shall give security in the Court of Common Pleas of Philadelphia county, to be approved by the said court, conditioned for the investment of the proceeds of the said sales, . by the. said Peter Maison, in such other securities as the said court shall approve, on the same trusts as are set forth in the said deed of John A. Maison to John Miller and John Weiss.” Subsequently to the passage of this act, certain proceedings were had in the Court of Common Pleas for the city and county of Philadelphia in reference to this trust estate. Due search has been made for the records of these proceedings, and all of the papers have been lost except the docket entries, which are as follows: “ Assignees and Trustees’ Docket B., p. 390. In the matter of the estate of John A. Maison — Trust estate. January 13th 1844, petition of Edward Richard Hansen and Ann Eliza, his wife, formerly Ann Eliza Maison, presented, read and filed. And on motion of Greorge Sharswood, Esq., court grant prayer of petitioners, and appoint Peter Maison trustee, in the place of John Weiss, deceased. April 12th Í845, petition of Maison read and filed, and on motion of Mr. Biddle, court permit petitioner to give security according to special Act of Assembly. Éo die, bond filed.” The defendants then offered in evidence a deed from Peter Maisori, trustee, &c., to Augustus L. Roumfort, the defendant, dated March 26th 1855, recorded in deed book R. D. W., No. 19, p. 37. Reference is to be had thereto to explain this opinion. The material portions are as follows: “ And at a Court of Common Pleas, held at Philadelphia, for the city and county of Philadelphia, on the 13th day of January 1844, the petition of the said Edward Richard ’Hansen and Ann Eliza, his wife, by their attorney in fact, the said Peter Maison, was ¡>resented, setting forth that the said John Weiss was deceased, and that the said John Miller had never accepted the trust above mentioned nor acted in any manner therein, as appears by an instrument to said petition annexed, and praying the said court to appoint some suitable person as trustee, according to the Act of Assembly in such case made and provided, whereupon the said court on due consideration granted the prayer of the said petitioners, and appointed the said Peter Maison a trustee of said estate, in lieu of the original trustee aforesaid, and in and by an Act of the General Assembly of the Commonwealth of Pennsylvania, passed the 14th day of March 1844, entitled “ An act to authorize Peter Maison to sell and convey certain real estate,” it was enacted that the said Peter Mai-son, trustee, aforesaid, be and was thereby authorized to sell at public or private sale, as he might deem most advantageous, all or any part of the estate and "premises granted and conveyed by the said John Maison to John Miller and John Weiss in and by the above-recited indenture in trust for the purposes therein set forth, and to make and execute a good and sufficient deed or deeds to the purchaser or purchasers thereof, in fee-simple altogether discharged from the trusts of the above-recited indenture, and from any obligation on the part of the said purchaser or purchasers, to see to the application of the purchase-money, provided that before the said Peter Maison should make or execute any such deed he should give security in the Court of Common Pleas of Philadelphia county, to be approved by the said court, conditioned for the investment of the proceeds of the said sales by the said Peter Maison in such other securities as the said court shall approve, on the same trusts as were set forth in the above-recited indenture. And at a Court of Common Pleas, held at Philadelphia on the 28th day of May 1852, the said Peter Maison entered into a bond with James D. Whetham as surety in the sum of $800 conditioned for the investment of the proceeds of said sale as directed by the said Act of Assembly, which said surety was approved by the said court and duly entered.” Copy of certificate endorsed on said deed. City and county of Philadelphia, ss. Be it known that at a Court of Common Pleas held at Philadelphia the 28th day of May 1852, the within named Peter Maison, trustee, &c., entered into bond with James D. Whetham, surety in the sum of $800, conditioned for the investment of the proceeds of the sale of the within-granted premises, as directed by the Act of Assembly within recited, which said surety was duly approved and entered of record in said court, agreeably to the said within-recited Act of Assembly. In testimony whereof, I have hereunto set my hand and affixed the seal of the said court this day of A. D. 1855.” To the admission of this deed the plaintiffs objected on the ground, 1. That the Act of Assembly supra was unconstitutional, and therefore conferred no right upon Peter Maison to sell the property in question. 2. That the requirements of the act had not been complied with, that such security should first be given in the Court of Common Pleas, to be approved by the said court, conditioned for the investment of the proceeds of the said sales by Peter Maison, in such securities as the court should approve. (I admitted the deed, to which admission plaintiff’s counsel excepted.) “ The depositions of Roumfort and a number of other witnesses were read, showing that Roumfort agreed with Maison to buy the premises in question in 1844,, and under the agreement took possession in 1845, since which time he had continually occupied them as a farm, and performed the ordinary acts of ownership upon them without objection till the commencement of this suit. No deed was however made to Roumfort till the present one of 1855, owing to a dispute between him and Maison as to the price to be paid for the premises.” Ann Eliza Maison, the cestui que trust mentioned in the trust deed from John A. Maison, was married to Richard Hansen, of Copenhagen, Denmark, December 15th 1827. Her-husband died at Berlin, Illinois, July 9th 1854. The said Ann Eliza Hansen died a widow at Berlin, Illinois, December 9th 1870, leaving surviving her five children, who either singly or joined with their husbands are plaintiffs in this suit. The oldest of the five children reached her majority March 4'th 1851, and married the same year. The youngest reached her majority August 3d 1864. The plaintiffs submitted the following points, to which are appended the answers of the court: 1. That the Act of Assembly of 14th March 1844, to enable Peter Maison to sell and convey certain real estate, did not enable him to convey to Roumfort a valid title to the premises in dispute indefeasible by the plaintiffs. Ans. “ The said Act of Assembly authorized Peter Maison to make conveyance. Under the act he conveyed the premises in dispute to Roumfort, and the title thereby acquired is valid and indefeasible by the plaintiff.” 2. That there is no evidence that the provisions of the Act of Assembly of March 14th 1844, in reference to the entering security by Peter Maison, and the approval of such security were complied with, and therefore no title passed by the deed from him to Roumfort. Ans. “ There is evidence in the cause which satisfies me that the provisions of the Act of Assembly of March 14th 1844, in reference to entering security by Peter Maison, and to the approval thereof, were complied with, and therefore a good title passed by the deed from him to Roumfort.” 3. That under all the evidence the plaintiffs are entitled to recover.” Ans. “ Under all the evidence the plaintiffs are not entitled to recover. Exceptions to the findings and conclusions of the court were dismissed and a new trial refused, and after judgment plaintiffs took this writ and, inter alia, assigned for error the answers to the above points and the admission in evidence of the deed from Peter Mai-son to Roumfort. The objection that the Act of 1844 was not constitutional was not pressed at the argument in this court. The defendant failing to find any record of the security required by the Act of 1844 or approval by the court, substituted therefor a certified copy of docket-entries. These being admitted paved the way for the deed, which was accordingly made evidence. This is the case of a peculiar authority to sell conferred by statute, depending for its lawful exercise on the existence of conditions precedent, viz.: the entry of security conditioned according to the provisions of the statute, and the approval of the security by the court. The docket-entries do not show any amount of security nor approval by the court. If an Act of Assembly authorizes a sale by guardian on entering into recognisance to be approved by the court, a certificate from the clerk that such recognisance was given is not evidence. A copy of the recognisance should be stated with the approbation of the court: Jones v. Hollopeter, 10 S. & R. 326. Recitals in a sheriff’s deed are no evidence of his authority to sell. The judgment and execution must be produced: Hampton v. Specknagle, 9 S. & R. 212. The existence of a petition and the order of the court thereon, authorizing the sheriff to make a deed, cannot be presumed against one who was a stranger to the proceeding: Baskin v. Seechrist, 6 Barr 154. The docket-entries say, “ April 12th 1845the deed says, “28th of May 1852.” The endorsement on the deed says impliedly on neither date was security entered. There are no docket-entries as to May 28th 1852. There is no allegation, except that in the deed, that security was entered on that day and the incompleted endorsement on the deed shows plainly that the requirements of the act had not been complied with. Take, therefore, either the question of law or of fact as it is involved in the point as to the admissibility of this deed, and it seems: First, that the docket-entries cannot be received to supply the missing record, and secondly, that if admitted, that deed with collateral circumstances establish the fact that no security was given and therefore it could not pass a. valid title indefeasible by the plaintiffs. —The requirements of the Act of 14th of March 1844 were complied with. The sole question under this head is whether there was any evidence whatever to entitle a jury to find that the security required had been .given. This is a writ of error and unless the. court should have instructed the jury to find for the plaintiffs, the judgment must be affirmed. What remains of the record is quite sufficient to show what actually occurred. An Act of Assembly had been passed requiring the trustee, before executing a deed to the purchaser of land belonging to the trust estate, to give “security in the Court of Common Pleas.” The original papers of the court being lost, the docket shows that on the 12th of April 1845, Maison, the trustee, presented a petition in the Court of Common Pleas, in the trust estate of John A. ’ Maison, which petition was filed, and on motion of his attorney, the court thereupon permitted the petitioner to give security according to the special Act of Assembly. Bo die,, bond filed. It appears from the deposition of Roumfort, the purchaser, that on the 1st of April 1845, he took possession of the lot and that about that time, Maison, the trustee, in answer to a request for the deed, told him, that “ he had given bail or that he would shortly give bail in the Court of Common Pleas.” By bail, the witness meant the security required by the Act of Assembly. Moreover the order is, that the court permit the petitioner to give security according to the special Act of Assembly. These words indicate that the security had been and doubtless it was in the petition filed that day, mentioned and approved. It is impossible that this can mean that the court permit him to tender the security. No such order is made. The only permission necessary is to file, not to offer to file, the bond. The order is only made after the security is accepted. That the bond was the security for this sale is clear, as there was nothing else for which security could be given —nothing else to secure. But the maxim of omnia prcesumuntur, &c., is clearly applicable. Where an Act of Assembly requires a trustee to give security to be approved by the court, it will certainly be presumed, where the court records have been destroyed, that what could only lawfully be done in a certain way was performed in that way, when performed under the direction of the court.
89 Pa. 250North v. Phillips (1879)
Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1877, No. 36. Assumpsit by James R. Phillips against George H. North and William F. North, trading as George H. North & Co. The defendants were brokers in the city of Philadelphia. In March 1872 plaintiff gave them an order for three hundred shares of Pennsylvania Railroad stock, to be purchased on a buyer’s option of thirty or sixty days. The contract was that North & Co. should buy the stock on margin, Phillips to deposit with them ten per cent, of the par value of the stock to protect them against a fall, and at any time that this margin of ten per cent, should be reduced by a decline in the market, Phillips was to make up the difference in the margin; otherwise the defendants were privileged to sell the stock. Purchases were made in pursuance of these contracts, and in May 1872 defendants were carrying fifteen hundred shares of the stock for plaintiff. The market declined, and North & Co. continually notified Phillips that more margin was required, but he was always behind with the ten per cent, margin, as required by the contract. On the 18th of September 1872, the defendants furnished plaintiff with an account, wherein it was shown he was largely in debt for margins, and defendants threatened to sell him out, if additional margin was not furnished. A temporary arrangement was made, and a portion of the stock was sold with Phillips’s consent. The defendants, however, continued to carry for him one thousand shares of the stock, and as the market was still declining, renewed their requests for margins, and their threats to sell, if they were not furnished. Monday, November 11th 1872, was the day after the great Boston fire. A panic was expected in the stock market. In consequence of Monday being the day fixed for the funeral of General Meade, the Board of Brokers had adjourned over from Saturday until Tuesday. A special meeting of the board was culled for Monday, which was opened at ten o’clock that morning. North & Co. sent to the office of Phillips, which was the only address they had or could find, to notify him of the condition of the market. His office was closed, and as he could not be found, his stock was-sold. The plaintiff testified that he called at the office of defendants the morning after the sale, and saw Mr. George H. North. “ I said to Mr. North I had received notice of the sale of my one thousand shares Pennsylvania Railroad stock. What does it mean? He replied that he was called on, or something of that kind. Then I asked him why he didn’t notify me; why he didn’t call on me ? I think he made no response to that. Then I told him that I would not accept the sale. Then Mr. North called a friend, standing outside the office, to the office door, and asked him, the friend, if he would know me (pointing to me). He said that he would, or that he did. Then Mr. North pulled out his watch and said, ‘ I call on you for $5000 margin in five minutes,’ or he would sell my stock. Then I said to him, ‘ You notified me that you had sold the stock,’ and then I told him that I would hold him responsible for the stock he held of mine, and I think something to the effect that I would not be swindled out of any moré money in that way, and left the office.” George H. North testified. “We went into the back office, and Phillips wanted to know by what authority I sold the one thousand shares Pennsylvania Railroad. I told him that I had notified him the day before in the morning, and before I had sold the stock, by one of my clerks, to come to my office at once to deposit further margins, or to deposit margin, and my clerk reported that he was not at his office or counting-house, or whatever you call it. I then called Mr. Murphy, who was in the front office, and I asked him whether he would know this gentleman again, and after Murphy replying that he would know Mr. Phillips, I tendered Mr. Phillips’s one thousand shares Pennsylvania Railroad stock, and gave him till three o’clock to pay for them. That was the end of the conversation. He made no reply to that, and left the office. I recollect taking out my watch when I made this remark, giving him until three o’clock to pay for them. The word ‘ call’ was not made use of by Mr. Phillips. He did not call on me for any stock.” On cross-examination, Phillips, in substance, testified: Gave them $500 for this investment — the purchase of three hundred shares of stock. A corresponding amount in proportion to the number of shares bought was deposited when the other shares were bought. Presume these amounts might be termed margins, but ordered the stock to be bought; expepted to make money on the rise in the stock; presumed the balance of the purchase-money was to come from myself, but never paid it;' stock was carried for him by his paying J and -J- shaves* according to the market; had dealt with other brokers in a like manner; stock was never transferred; never asked to have it transferred. The testimony was very conflicting. The value of the stock carried for Phillips varied from $20,000 to $78,000. The defendant’s sixth and seventh points were as follows : 6. That the measure of damages, if the plaintiff be entitled to recover damages, is the difference between the price at which stock was sold and the price at which his principal could have replaced it within a reasonable time after the notice of sale. 7. That the sale of stock by a broker or agent, where the dealings were in differences, will only entitle the injured party to demand the return of the stock, or if the party fail or refuse to make return thereof, then, within a reasonable time, to replace it himself, and recover, if entitled so to do at all, the differences in value. To which the court, Allison, P. J., answered: “ If you find this is a contract for the purchase and sale of stock, then I instruct you, upon the law of Pennsylvania, as very clearly settled in the case of Bank of Montgomery «..Reese, that the true measure of damages is the difference between the value of the stock on the day it was sold and the highest value that it reaches up to the day of trial.” In the general charge the court, inter alia, said : “ The plaintiff alleges that when called upon, from time to time, he made deposits as what he called margins. When asked upon what terms this stock was bought, he said, in one portion of his evidence: ‘ I bought this stock for an investment, just as I would buy anything else, with the expectation of making money by the rise of the stock.’ When, on cross-examination, he was asked if he did not buy this stock upon what is technically called margins, he said: ‘ I bought it with the expectation of making money by the rise; I suppose you can call it buying on margins.’ When brought back to state exactly upon what terms he dealt with the defendants, he said: ‘ I bought the stock, and I expected to pay for the stock at its maturity.’ This is important, because this case may turn very much upon what you, the jury, may find this to have been — whether it was a purchase by the defendants, acting as brokers or agents for the plaintiff, or whether it was a mere gambling on the part of plaintiff and the defendants that they would hold stock and agree to carry stock for him, he to pay nothing more than the call for margin, and not to be called upon at any time to pay for this stock when théy should demand the payment at his hands. “ This is important, because the distinction is a very difficult one to draw so as to bring it to the comprehension of those who are not familiar with these transactions. Yet, still it is a substantial difference in our law, and the Supreme Court of Pennsylvania have had this question before them. It is decided in a very recent case, reported in 22 P. F. Smith. The question was there whether it was an agreement to purchase — that is, the custom or purchased stock — and whether he should, upon complying with the terms of the purchase, be entitled to' have that stock delivered to him, or whether it was only an agreement that he should not risk anything more than the margin he had paid from time to time. In the first place, although it may be bought upon time, it may be a bargain for an option. If it is a bargain by which the right of property in a stock vests in a customer, so that he would be entitled to call upon the seller to deliver the stock, that, in law, is a good contract. But if it was nothing more than an agreement that stock was to be carried for him by other parties, who did not part with the title, and did not agree to sell the stock and vest the title in him, so that he was simply to take the chances of making money or losing money by the rise or fall of the stock, the law says it would be an invalid contract. In the case of Kirkpatrick v. 'Bonsall this distinction is endeavored to be set up by Chief Justice Agnew. We cannot call this, on the face of it, a gambling contract, so I say to you that a bargain for an option, if this was that kind of a contract, may be a legitimate and perfectly fair and proper business transaction.” The verdict was for plaintiff for $4000. The defendants took this writ and assigned for error, inter alia, the answers to the foregoing points, and submission to the jury of the question whether this was or was not a gambling contract. This was a gambling contract, and this court will not enforce it: Kirkpatrick v. Bonsall, 22 P. F. Smith 155; Maxton v. Gheen, 25 Id. 168. The rule of damages laid down in Bank v. Reese, 2 Casey 143, applies only where there is a relation of trust: Wilson v. Whitaker, 13 Wright 115; Neiler v. Kelly, 19 P. F. Smith 409; McHose v. Fulmer, 23 Id. 367; Huntingdon and Broad Top Railroad Co. v. English, 5 Norris 247; Wagner v. Peterson, 2 Id. 241; Greenway v. Wilkinson, 1 C. & P. 625; Cortilyou v. Lansing, 2 Caines Cas. 216 ; Hart v. Ten Eyck, 2 Johns. Ch. 117; West v. Went-worth, 3 Cowen 32; Clark v. Painey, 7 Id. 596 ; Baker v. Drake, 53 N. Y. 211. To apply the rule of the highest price to a case, like the one at bar, would be fraught with,injustice to the defendants. Phillips has risked little or nothing. If, as he says, he was an intended bona fide purchaser, he still had the price of the stocks, less the trifling sum he had advanced for margins. If there had been a tender of the purchase-money, the one thousand shares of Pennsylvania stock would have been immediately delivered to Phillips. Musgrave v. Beckendorff, 3 P. F. Smith 310, was an agreement for the return of the identical bonds loaned, and is distinguished and discussed in Huntingdon Railroad v. English, supra. Reitenbaugh v. Ludwick, 7 Casey 132, was the case of a trust. Whether or not this was a gambling contract was a question for the jury, and under a full instruction from the court they determined it. The measure of damages adopted by the court below, upon the authority of Bank of Montgomery v. Reese, 2 Casey 143, should be affirmed by this court. Noiler v. Kelly, 19 P. E. Smith 403, decides that when there is a duty on a party to deliver stocks or securities at a particular time, which duty has not been fulfilled, he is liable for the highest price in the market between that time and the trial. It is submitted that the rule is the same when the party has, by a wrongful disposition of the stock, put it out of his power to deliver it at the appointed time. The same measure of damages was applied to a breach of a contract to replace borrowed stock, in Musgrave v. Beckendorff, supra. A party liable to account for stocks, is chargeable with the highest market Drice on his refusal to account: Reitenbaugh v. Ludwick, supra1
89 Pa. 256Hayes's Appeal (1879)
1. Under the Act 27th April 3855 (Pamph. L. 368), the children of deceased uncles and aunts of an intestate take per stirpes, and not per capita. Brenneman’s Appeal, 4 Wright 115, followed. 2. The Act of 1855 constituted the grandchildren of brothers and sisters, and the children of uncles and aunts additional classes of collateral heirs as contradistinguished from next of kin, and the 14th section of the Act of April 8th 1833, (Pamph. L. 315,) does not apply to them.
89 Pa. 261Peabody Building & Loan Ass'n v. Houseman (1879)
A. applied to a building association for a loan, and offered as security therefor mortgages on certain properties which he owned. B., the solicitor of the association, on the representation of A., that he could obtain the searches more quickly from the recorder of deeds, allowed A. to procure the searches. A. induced the'clerk of the recorder to issue the searches, omitting one mortgage on each of the properties, assuring the clerk that these mortgages should be satisfied. A sale took place on the omitted mortgages and the association lost its money. Held, that the recorder was liable for the loss. Held, further, that A. was in no sense the agent of the association so as to affect it with his knowledge of tjje encumbrances. Held, further, that the authority given to A. by the solicitor was not within the scope of his powers, and would not bind the association.
89 Pa. 265Craig v. City of Philadelphia (1879)
2, of Philadelphia county: Of July Term 1877, No. 89. Scire facias sur municipal claim for paving, filed by the city of Philadelphia to the use of W. W. Dickinson, against Robert Craig, for work done in front of a lot of ground situated in the Twenty-seventh ward of the city of Philadelphia, south side of Market street, and west side of Eorty-ninth street, fronting on Market street three hundred feet, depth two hundred and fourteen feet to Ludlow street.
89 Pa. 272Davis's Appeal (1879)
Appeal from the Court of Common Pleas, No. 8, of Philadelphia county: Of January Term 1877, No. 186. Appeal of Edward M. Davis from the decree of the court dismissing his exceptions to the report of the auditor of the account of the assignee of William II. Lippincott for the benefit of creditors. The auditor, Henry Wharton, Esq., found the following facts: ■ Mr. R. P. White presented the claim of Mr. E. M. Davis for the sum of $2206.50, under the following circumstances: Mr. Davis, in the year 1874, by deed dated the 28th day of March of that year, and recorded in Montgomery county in book No. 217, p. 1, conveyed to tbe assignee a piece of ground at Chelten Hills, in that county, adjoining property on the Old York Hoad, belonging to him, containing about fourteen acres and a half. The consideration expressed in the deed is the sum of $14,000. At the date of this instrument the property was, in point of fact, subject to a mortgage-debt of $11,000 to Edward Hopper, executor of James Mott, deceased. But no mention of any kind of this mortgage-debt is made in the deed. There is to be found no covenant, express or implied, on the face of the latter for its payment or assumption by the grantee. The history of the transaction is as follows: The lot in question lay between property belonging to Mr. Lippincott and Mr. Davis. Mr. Davis had been anxious to dispose of it to the former, and it seems had once or twice spoken to him upon the subject of a purchase by him. On the 24th. day of February 1874, Mr. Davis addressed to Mr. Lippincott a letter. In this letter in which he sets out his reasons for considering the purchase at the price advantageous to Mr. Lippincott, and says : “I told you I have $11,000 on it that can run for five years from March 1st. Now with this on it, if you will give me $3000 cash on the 1st day of March, I will let you have all the evergreens, all the stone, nearly $300 worth, and the cut wood that belongs to me. It is a rare bargain, and I sell it at this sacrifice because I want money.” There is nothing anywhere to indicate the desire or expectation on the part of Mr. Davis that Mr. Lippincott should assume, or be personally responsible for, the mortgage-debt — it is not even an offer to sell for $14,000, part in mortgage and part in cash. Indeed the statement that the “ $11,000 can run for five years,” so far as it has any significance, points the other way. It is rather the vendor undertaking to indemnify the vendee. The letter being satisfactory to Mr. Lippincott, he placed it in the hands of his conveyancer and counsel, Mr. Littleton, with instructions to see Mr. Davis, and if he could do no better to close on that basis. According to his testimony there were no special instructions on either side as to how the deed was to be drawn, nor is there any agreement shown on the subject, parol or otherwise, outside of the letter. This, consequently, is the foundation of the deed. Mr. Littleton, who acted, he said, solely for the vendee, in which Mr. Davis agrees, deliberately omitted any covenant or assumption of the payment of the mortgage-debt in the deed, express or implied, which he did for the very purpose of preventing any personal liability on the part of his client for the principal outside of the property conveyed. After the deed was prepared it was executed by Mr. Davis without objection on account of the absence of any agreement to assume the mortgage. He, however, says that Mr. Littleton told him that it was “ all right,” of which the latter has no recollection, but he says that he has no doubt that if Mr. Davis did ask the question, he so answered him, “ as I thought it was all right in my view.” With reference to the question as to what the purchase-money was to be, apart from the terms of the letter, Mr. Lippincott and Mr. Littleton, according to their testimony, both understood that the price was $14,000, but to have regarded that as its arithmetical measure, not as an agreement by Mr. Lippincott to pay or assume the payment of that sum. Mr. Lippincott, who is now practically indifferent in the matter, is positive on this point. He says : “I never agreed to pay that mortgage.” In reply to the question, “ When was it agreed that you were to pay $3000 and retain the $11,000,” he said, “I don’t think it'ever was so agreed.” He had known before that there was a mortgage for $11,000, but had understood that it was to be “ deducted from the purchase-money.” By this the auditor understood having reference to the rest of the witness’s testimony, that the purchase-money was to be so much less, not that the mortgage-debt was to be taken out of it. The deed was accompanied by a separate covenant on the part of Mr. Davis, that the mortgage-debt should not be called in for five years, if the interest was punctually paid, a copy of the material part of which is annexed. This agreement appears to sustain Mr. Lippincott’s understanding iu two ways. In the first place it recites that “ Whereas, I, Edward M. Davis, have this day conveyed to William H. Lippincott, for the sum of $3000 (not $14,000), a lot of land in Cheltenham township, &c., subject to the payment of a mortgage-debt of $11,000 to Edward Hopper, &c., and secondly, the taking an express covenant from the vendor, to indemnify the vendee for a limited period, without any corresponding undertaking on the part of the latter, to indemnify the former at the end of the period, is strong to show that this was not intended. The omission of such a covenant from a document where it ought to have been inserted, is more significant than mere silence. After Mr. Lippincott’s assignment, the mortgage was sued out by reason of the non-payment of the interest, as was testified to by Mr. Hopper, the mortgagee, which of course abrogated this last-mentioned covenant of guaranty. The property was- sold at Sheriff’s sale on April 19th 1875, of which there can be no doubt that Mr. Davis had notice, and was bought by his son, by whom it was a few weeks after sold and conveyed to a Mr. Dobbins, for $10,000. Mr. Davis, the father, negotiated this last sale, but denied having any interest in the matter. The judgment on the mortgage was for $11,852.50 ; on this, Mr. Hopper received in cash from the sheriff $4646, which, with a mortgage from the purchaser at the sheriff’s sale for $5000, made $9646, leaving a balance on the judgment, of $2206.50, which was paid by Mr. Davis to Mr. Hopper, on 17th June 1875. It was for this balance that Mr. Davis claimed against the assigned estate; he has also brought suit,' therefore, against Mr. Lippincott personally. Upon the foregoing facts the auditor disallowed the claim of Mr. Davis, and his exceptions being dismissed he took this appeal. Of course it is better to have a statement in the deed that the property is conveyed subject to an encumbrance; by doing so the proof is manifested by deed. From this has grown the practice of inserting the words under and subject, &c., in the deed, and consequently they have appeared in nearly every case that has come up before the Supreme Court. But it has never been held that these words are requisite to cast the duty of indemnifying the vendor upon the vendee, and the contrary was ruled in Taylor v. Preston, 29 P. F. Smith 436 ; Buckley’s Appeal, 12 'Wright 491, The assumption may be proved by parol and it will be implied from an abatement of the purchase-money: McCracken’s Estate, 5 Casey 428 ; Kostenbader v. Spotts, 30 P. F. Smith 433. Wherever the mortgage is counted as part of the purchase-money, the vendee is personally liable and is bound to indemnify the vendor: Thomas v. Pledwell, 7 Vin. Abr. 53, pi. 5 : Kearney v. Tanner, 17 S. & R. 97; McCracken’s Estate, supra; Metzgar’s Appeal, 21 P. F. Smith 330; Hoff’s Appeal, 12 Harris 205; Woodward’s Appeal, 2 Wright 327 ; Blank v. German, 5 W. & S. 42; Lennig’s Estate, 2 P. F. Smith 135; Girard Life Ins. Co. v. Stewart, 5 Norris 89. The appellant’s position is in advance of any case decided in this state, and goes to the length that whenever a purchaser buys real estate which is subject to an encumbrance, the law will imply an agreement on his part to pay it, as in arriving at the price to be paid the encumbrance must be deducted from the full value, which is in effect a retention of so much of the purchase-money as will pay the encumbrance. In Kearney v. Tanner, 17 S. & R. 97, the court emphatically denied this to be the law. Where the contract of sale has been executed by the acceptance of a deed, there must be an express charge in the deed, or the contemporaneous agreement must show an assumption by the vendee. If he did not, the insertion of the words “ under and subject,” &c., in the deed or in the agreement, did not, per se, render him personally liable. These words are only evidence of,the fact of the assumption, not conclusive of it: Kearney v. Tanner, 17 S. & R. 97; Blank v. German, 5 W. & S. 42; Metzgar’s Appeal, supra; Girard Life Ins. Co. v. Stewart, supra.1
89 Pa. 276Carver's Appeal (1879)
Where real estate is sold by an assignee for the benefit of creditors, under the provisions of the Act of February 17th 1876, the interest on the liens does not cease until the day of the final confirmation of the sale by the court.
89 Pa. 279Markley v. Stevens (1879)
Error to the Court of Common Pleas of Berks county: Of January Term 1879, No. 120. Covenant by Sadosa S. Stevens against Benjamin II. Markley, to recover arrears of rent upon a lease under seal, dated July 1st 1872. The claim was for $210, the rept alleged to be due from January 15th to May 1st 1877. The defendant filed an affidavit of defence wherein he averred that on the 28th day of June 1872, the said defendant purchased from the plaintiff a certain drug-store; that plaintiff guaranteed that there were in the said store at time of sale at least $8000 worth of drugs, medicines, &c., and induced the defendant to agree to give that much, which defendant agreed to do, upon the special guaranty of the plaintiff that the st#8fck consisted of drugs, medicines, &c., worth $8000 ; that, immediately upon taking possession of said store, defendant had a careful inventory taken of the contents of said store, and found but $4798.78 worth of drugs and medicines (including counter and shelving), instead of $8000 worth, as plaintiff had guaranteed; that defendant, acting upon the special guaranty of the plaintiff, paid him the sum of $8000 — $5000 of which amount was paid before defendant had taken possession of the store; that upon this transaction, plaintiff is indebted to defendant in a sum exceeding $3000, not including interest; that plaintiff is further indebted to defendant in the sum of $5.01 for drugs, &e., furnished by defendant; and, also, in the further sum of $8.30, hill paid by defendant for plaintiff to E. J. Nolan, plumber, &c. A rule for judgment for want of a sufficient affidavit of defence was made absolute, Sassaman, J., in an opinion, saying: “ The counsel for plaintiff in this case says his party knew nothing of the bill for drugs $5.01, and Nolan’s plumbing bill for $8.30, due by plaintiff to defendant, but that he thinks they may be proper charges, and agrees that they shall be deducted from the amount of the claim, which must accordingly bo done. “ The only dispute then is the amount of deficiency claimed by an inventory of the drugs in a certain store, made immediately after obtaining possession of the demised 'premises. The cases cited by the defendant’s counsel in this case are not applicable in this suit, for the reason, that what he now claims to set off against the balance of the claim in suit, is for money voluntarily paid by him, for the most part after he had full knowledge of the alleged facts. Even though there should have been a guaranty, if, after he knew' the failure of the amount guaranteed, he made payment in full 'without defending on that contract, he could not now set up any amount voluntarily and knowingly overpaid in a suit upon this contract for the lease of the premises described in the copy filed for a certain rent, by way of defalcation. The criterion to go by would be, could he maintain a suit for what he offers to defalcate. Money paid and received voluntarily, though not strictly demandable, cannot be recovered back: Morris v. Tarín, 1 Dali. 158;' Kennedy v. Hughey, 8 Watts 265; Keener v. Bank, 2 Barr 237 ; Natcher v. Natcher, 11 Wright 496. Money voluntarily paid cannot be recovered back, on the ground of a mistake of law as to the right of the other party to receive it: Ege v. Koontz, 3 Barr 109. Money voluntarily paid with knowledge or means of knowledge of the facts, and without fraud on the party cannot be recovered back, because paid in ignorance of the law; Real Est. Sav. Inst. v. Linder, 24 P. E. Smith 371. It seems strange to us that a person should pay thousands of dollars voluntarily in satisfaction of one contract, and that the same person should apparently, also voluntarily, pass along for a number of years, paying monthly dues on another contract, and make no defence of defalcation until sued for a comparatively small balance on the last contract. We do not consider the affidavit of defence sufficient.” This entry of judgment was assigned for error. The affidavit of defence disclosed a substantial prima facie case. It was therefore sufficient and should have been supported. It is not necessary that an affidavit should expressly negative every objection or argument which can be raised against it. It is only necessary that the facts constituting the defence should be averred with reasonable precision and distinctness, and with certainty to a common intent: Hugg v. Scott, 6 Whart. 274; Leibersperger v. The Savings Bank, 6 Casey 531; Thompson v. Clark, 6 P. E. Smith 33 ; Eyre v. Yohe, 17 Id. 477; Youngman v. Walter, 23 Id. 134 ; Bronson v. Silverman, 27 Id. 94; Moeck v. Littell, 1 Norris 354.. The affidavit is to receive a reasonable construction in favor of the defendant, and a reasonable intendment is to be made in his favor: Roberts v. Austin, 5 Whart. 313 ; Twitchell v. McMurtrie, 27 P. P. Smith 383. No reasonable construction was put upon the affidavit. The opinion of the court below is based upon a series of assumptions. In no sense can it be said that the $5000 were paid by the defendant with a “full knowledge of the alleged facts.” It is true that it is not stated precisely when the balance of $3000 were paid. The only inference that could be drawn from this omission to state the time precisely would be that it was paid when or after defendant had taken, possession of the store. —The omission to state the time of the payment of the balance of the purchase-money was fatal. If paid after knowledge of the deficiency in the stock of the store it was voluntary, and can not be recovered back. The affidavit should have stated specifically when the $3000 were paid.
89 Pa. 282Wilmington & Reading Railroad v. High (1879)
Error to the Court of Common Pleas of Berks county: of July Term 1878, No. 77. Debt by Ezra High, against the Wilmington and Reading Railroad Company, Edward Brooke and Hugh E. Steele. This was an action of debt on a joint and several bond for $8000, dated May 8th 1872, and payable April 5th 1873, with interest, executed by the Wilmington and Reading Railroad Company, Edward Brooke and Hugh E. Steele, in favor of Ezra High. It was given to secure Mr. High the payment of the damages which it was agreed he would sustain by reason of the location of the railroad of said company through his premises, and was accompanied by a draft of the proposed route of the road over the same. The following stipulation was written on the bond: “ The within bond has been given in payment for lands taken according to the annexed draft; and if from any cause the quantity of land and amount of fencing through the property of Ezra High, required by the location of the Wilmington and Reading Railroad as at present located, shall be changed or lessened, then a deduction of $300 per acre and $1.25 per ten feet'of fence shall be made from the face of the within bond.” There was also an endorsement on the bond of the payment of interest as follows: “Received June 18th 1873, of the Wilmington and Reading Railroad Company, four hundred and twenty dollars, being the interest on seven thousand dollars for one year to May 8th 1873. $420.00. Ezra High.” In 1871, when the branch of the Wilmington & Reading Railroad, extending from Birdsboro’ to Reading, a distance of eight miles, was about to be constructed, the route was located from Birdsboro’ along the right bank of the Schuylkill river, to a point where it crossed to the left bank of the river and entered the land of the plaintiff, through which it passed, first to a point near the Schuylkill, thence north nearly parallel with the river until it approached the Philadelphia & Reading Railroad at the boundary of plaintiff’s land. From this point it was intended to run the track along the said P. & R. Railroad to Reading, without again crossing the Schuylkill. This intention was thwarted by the P. & R. Railroad Company, who resisted the engineers of the Wilmington & Reading Railroad Company and prevented them from making a survey and locating the route along their railroad. The W. & R. Railroad thereupon, to wit, on the 3d of October 1871, instituted proceedings in equity in the Court of Common Pleas of Berks county to compel the P. & R. road to desist from interference with the intended location of their road along the left bank of the Schuylkill from High’s land to the city of Reading. The equity proceedings were pending before a master when the bond in question was executed by the defendants. The report of the master in favor of the P. & R. Railroad was filed shortly after, subsequent to which nothing further appears to have been done in the suit. The directors of the Berks County Railroad Company, which had been previously chartered, and, was intended to form, with the Wilmington road, a continuous line of railway from the Lehigh river to the Delaware, were awaitipg the completion of the branch road from Birdsboro’. to Reading, and as under their charter they had authority to construct a railroad from the Wilmington and Reading Railroad, at or near Birdsboro’, to Reading and beyond, they were considering the propriety of building their road southward, to connect with the Wilmington road at some point below the place of resistance by the Reading road; and on the 12th of June 1872, they passed a resolution to extend their road from the city of Reading to a point on the plaintiff’s farm, to connect with the Wilmington branch from Birdsboro’, and subsequently constructed the same to the point of junction of the two roads on plaintiff’s farm, specific authority therefor having been granted them at the next session of the legislature. It was while these several proceedings were in progress that the bond in question was executed and the stipulation written thereon; and as the Wilmington road, notwithstanding its route was originally located through the whole length of the plaintiff’s farm, for obvious and apparently justifiable reasons afterwards changed or rather shortened its route on said farm, and thereby lessened both the quantity of land as well as the amount of fencing required, the defendants claimed that under the stipulation on the bond they had a right to a deduction according to its terms. At the trial, before Sassaman, J., the defendants offered to prove, 1. That the quantity of land taken by the Wilmington and Reading Railroad, in the location and construction of their railroad on the plaintiff’s land, was lessened by six and eight-tenth acres from the quantity of land embraced in the original location of said railroad, as shown by the draft of the location attached to the bond offered in evidence. 2. That within the marked lines of said draft, so far as the Wilmington and Reading Railroad has been actually located and constructed on plaintiff’s land, only six 81-100th acres are taken by said railroad, instead of thirteen ll-100th acres, as embraced in said draft. 3. That the length of the line of said Wilmington and Reading Railroad, as actually located and constructed on plaintiff’s land, is only 2430 feet instead of 5765 feet, as contained in said draft, thereby lessening the distance 3335 feet. This offer was made, under the stipulation endorsed on bond, to show how much the amount of bond was to be diminished, both as to quantity of land and amount of fencing. The court rejected the offer, saying: “ 1. The court understand the first proposition of the defendants’ offer to contemplate a variation of location from the location of the Wilmington & Reading Railroad, ‘ as at present located,’ in the words of the covenant endorsed on the bond. With this view of the first proposition, we think the offer would prove a variation of the original contract, and not only a change or lessening of ‘ the quantity of land taken and amount of fencing’ required. We think this was not contemplated in the covenant. “ 2. By the offer in the second proposition, it seems to us there would be proof of ^ctual location and construction different from that contemplated in the express covenant endorsed on the bond, providing only for the elements of damages had in view of a settlement for occupation and use of a location ‘ as at present located,’ at a settlement resulting in the bond in evidence. To allow other deductions than those specially mentioned would necessarily alter and vary the considerations of the bond. “ 3. If what is contained in the third proposition of the offer to prove had been in the present contemplation of the parties, at the making and execution of the bond, in any way, and at the endorsement entered thereon, this would certainly be admissible; but if what is proposed depends on matters and causes arising thereafter, it would produce a new state of things, leading to entirely different relations from those existing at the execution of the bond, as it appears to us from the terms of the offer, as compared with the terms of the covenant, our ruling must be otherwise. The offer is rejected and bill for defendants.” The verdict was for plaintiff for $10,469.33, and after judgment, defendants took this writ, and, inter alia, assigned for error the rejection of the above offer. The court below assumed that defendants had no right to' prove a different location or change of location from- that on the draft, and that if they did it was not contemplated by the parties. How could there be a decrease in the quantity of the land and amount of fencing without a change in the location ? This was the very object of the stipulation. It contemplated any cause resulting from the necessities or convenience of the company. The court virtually decide'd that there could be no defence to the payment of the whole amount of the bond. The reason for this provision no doubt was that the location of the railroad through the land of defendant in error required extensive excavation and embankment, and it was uncertain what quantity of land and fencing would be required. If the parties had contemplated a lessening of the quantity of land by a change of location they would have used apt words to express that intention. The defendants seek to escape the payment of a large part of the damages by setting up an agreement between them and the Berks County Railroad Company, under which their road was only to be completed to an intermediate point on plaintiff’s land. Can they be relieved from the payment of their bond by showing such secret arrangement ? This would leave the plaintiff without a remedy, for the half of the road for the Berks County Railroad Company is built, and that company is insolvent.
89 Pa. 287Smith v. Farmers' & Mechanics' Mutual Fire Ins. (1879)
Error to the Court of Common Pleas of Berks county: Of January Term 1879, No. 192. Covenant upon a policy of fire insurance brought by William B. Smith against the Farmers’ and Mechanics’ Mutual Fire Insurance Company of Millersburg, Pennsylvania. The case was submitted to a referee, John B. Dampman. Esq., under the Act of May 14th 1874. The facts as disclosed before the referee were substantially these: The plaintiff owned a building used as a carriage manufactory near Kutztown. On November 9th 1875, upon the solicitation of the agent of the defendant, he applied to the company for an insurance on said' building and its contents. On November 12th 1875, the company issued a policy therefor in the sum of $1800. Embodied in the policy were a number of printed interrogatories, the answers to which were to be regarded as warranties on the part of the assured. The twelfth of these interrogatories was, “ Is the property encumbered ? If so, state the amount, and also the estimated value of the real estate covered by said encumbrance ?” The answer to this on the policy was, “ No morg. judgment.” The thirteenth interrogatory was, “ Are all the facts material to the risk made known ?” and the answer, “ Yes.” On the back of the policy were a number of printed questions to be answered by the agent, one of which was, “ Are your answers by the applicant all correct, so far as you can discern ?” to which the answer was, “Yes.” The plaintiff paid in cash for the policy a premium of $27, and gave in addition a premium note for $270, which note was attached to the printed form of application. This note contained this recital: “ The undersigned, applicant for the proposed insurance, hereby covenants and agrees with the company to accept of the policy issued upon this application and survey, if in accordance therewith, and in case of loss, to adjust the same in accordance with the by-laws of said company, and conditions of said policy. But if any untrue answer has been given to the foregoing interrogatories, whereby the said company have been deceived, as to the character of the risk, or if any change be made so as to increase the risk of these premises, without being notified to this company, and endorsed upon their policy, then this insurance to be void and policy of no effect.” The policy provided: “ The assured hereby covenants and engages that the representation given in the application for this insurance is a warranty on the part of the assured, and contains a just, full and true exposition of all the facts and circumstances in regard to condition, situation and value of the property insured. And that if any fact or circumstances shall not have been fairly represented; or if the said assured, or his assigns, shall hereafter make any other insurance on the same property, and shall not give immediate notice thereof to the secretary, and have the same endorsed on this instrument, or otherwise acknowledged by him in writing, then this policy shall cease and be of no effect.” The fifteenth condition of the policy was as follows: “ The insurance under this policy shall cease at and from the time the property hereby insured shall be levied on or taken into possession or custody under any proceeding in law or equity, and should there, during the life of this policy, an encumbrance fall or be executed upon the property insured sufiicient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain the consent of the company thereto, then and in that case the policy shall be void.” At the time the policy issued there were nine judgments of record against plaintiff, aggregating $1031.01. On the 12th of October 1875 a fi. fa. was issued, and on the 25th of October 1875 the property described in the application was levied upon, and condemned on the 6th of November 1875. .On the 12th of November 1875, a venditioni exponas was issued, and the property advertised for sale. The property was burned on the 4th of December 1875. On the 17th of December 1875 the venditioni exponas was stayed. The company refused to pay the loss, on the ground that the answer, “No morg. judgment,” in answer to the printed question, was a warranty that the property was free from encumbrance, and that at the time of the application there had been a levy and condemnation of the real estate under a fi. fa., which they contended avoided the policy. Before the referee, when the defendant had closed his testimony, the plaintiff, in rebuttal, proposed to prove that before plaintiff signed the application, the agent of the company asked him “Whether he had a mortgage on his property ?” To which the plaintiff answered, “No, but other debts on it;” and that then the agent said, “ That makes no difference; you will be all right and safe;” and that in consideration of this verbal promise, the plaintiff signed the application. This evidence was objected to, and the referee sustained the objection. In an opinion the referee said : “All the facts necessary to make out a prima facie case for the plaintiff were proven. The defendant offered in evidence copies of the records of the Court of Common Pleas of Berks county, show ing that at the time of the occurrence of the fire the property had been levied upon by the sheriff, with a view of avoiding the policy under the condition thereof; condition 15 providing that the insurance should cease from the time the property was levied upon, under any proceeding in law or equity, &c. “The evidence was admitted, but it does not become necessary, in the decision of this case, to pass upon the effect of it. “ The defendants also proved that at the time of effecting this insurance, the property insured was encumbered with judgments, while in the application for insurance the plaintiff had said there were no judgments or mortgages; this-for the purpose of showing such false representations by the plaintiff as under the terms of the policy would avoid it. “ The plaintiff then offered to prove, in rebuttal, that a truthful answer had been given to the question in the application referring to encumbrances, but that the agent of the company, C. A. Z. Griesemer, who wrote the application, had written the answer incorrectly ; this for the purpose of avoiding'the forfeiture of the policy under the previous evidence. There can be no doubt that under certain circumstances he would have been entitled to show these. But, under the provisions of the policy in question, it could avail him nothing. By the terms of the policy, this representation was covenanted to be a warranty, and being a warranty on the authority of Cooper v. The Farmers’ Mutual Fire Insurance Co., 14 Wright 299, it cannot be shown by parol to have been a mistake; therefore the evidence was excluded. This was the vital point in the case. This evidence having been ruled out, the case of the plaintiff fails, and the decision must be for the defendants.” Judgment was entered for defendants with costs, when the plaintiff took this writ, and assigned for error the rejection of the foregoing offer of evidence and the entry of judgment for defendants. The answer of the plaintiff was plainly intended to mean that the property was not encumbered by a mortgage, but by judgments. Where the answer is plain and unambiguous, the company is justified in accepting it as a warranty, without further inquiry. But this court -has never gone so far as to permit an insurance company to construe the language of a written application, and then, after taking the hazard of acting upon its interpretation of an ambiguous answer, to bring itself by a technical strain within the rule laid down for the relief of companies acting upon an express warranty, and not guilty of any negligence. Columbia Ins. Co. v. Cooper, 14 Wright 331, governs this case. Where an answer to such a question is not categorical, it is the business of the company to make inquiry, or demand a more specific reply, and a failure to do this is a waiver of the question. Any ambiguity or uncertainty in such a case is sufficient to put the company on inquiry, and that amounts in judgment of law to notice of the fact to which such inquiry would lead. It was not contemplated that the applicant should write down the answers, but that the agent of the company should take them from the applicant and write them down, so that the agent, and not the applicant, warrants the correctness of the written answers. This was a technical seizure, unattended by change of possession or increased risk, and the fifteenth condition of the policy does not apply: Insurance Co. v. O’Maley et ux., 1 Norris 403. Viewed in the light of the question to which it was an answer, it is certain that the answer means no mortgage and no judgment. Even if the answer could be construed as claimed by appellant, how will he escape the condition that an omission to make known in said application any fact or feature relating to the risk shall render the policy void ? The applicant, although specifically interrogated, did not make known the amount of judgments, nor the value of the estate encumbered. This was an omission to state the facts material to the risk, although in the very last answer the applicant stated he had made known all facts material to the risk: Brown v. Commercial Ins. Co., 5 Wright 189. The application and the policy make all the answers warranties, and an untruthful answer or a failure to answer fully when specifically interrogated, vitiates the policy: Grottsman v. Pennsylvania Ins. Oo., 6 P. F. Smith 210; Cooper v. Fanners’ Mutual Fire Ins. Co., 14 Wright 299. The distinction- between this case and Columbia Ins. Co. v. Cooper, 14 Wright 331, is in the fact that in this case the statement is a warranty, and there it was merely a representation.
89 Pa. 293Appeal of Fogelsville Loan & Building Ass'n (1879)
Appeal from the Court of Common Pleas of Lehigh county: Of January Term 1879, No. 117. Appeal of the Fogelsville Loan and Building Association from the decree of the court confirming the award of the auditor in the distribution of the assigned estate of Granville Gernert and wife. On October 13th 1876, Gernert and wife made an assignment for the benefit of creditors. The personal property being insufficient to pay the debts, the assignee petitioned the Court of Common Pleas for an order to sell the real estate, discharged of liens, under the provisions of the Act of February 17th 1876, which order was made November 17th 1876. Sales were made in pursuance thereof, and the fund arising therefrom was referred to an auditor for distribution. The fund was claimed by O. A. Gernert on a revived judgment, and by the appellant upon two mortgages. It was contended, on behalf of the appellant, that the judgment of revival was not regular, inasmuch as it did not appear that there was any assessment of damages entered in the agreement to revive or upon the judgment index. The docket entries were as follows: No. 19 Continuance Docket Entry, April Term 1870. •Charles A. Gernert1 And APJd ,1870] a 24g { note is produced dated Apnl 1st Granville Gernert, [ d870’ f e™ted hand and ’ ’ J and seal oí defendant to plaintiff for the payment of fifteen hundred dollars, one day after date with interest from date, release of errors, and containing a clause authorizing the entry of judgment, Wherefore judgment, Jas. Lackey, Deputy Proth’y. April 8th 1875, revived to January Term 1875, No. 695. No. 28 Continuance Docket Entry, January Term 1875. Charles A. Gernert 1 Amicable action to revive and con-695 v. V tinue the lien for the term of five years Granville Gernert, J of judgment No. 243, April T. 1870. Now April 8th 1875, it is agreed that the above judgment be revived for another term of five years, as per writing filed. Ei. fa. to Janizary T. 1877, No. 17. Eor return see No. 16, January T. 1877. Vend. ex. to April T. 1877, No. 162. Refer to No. 159-|, April T. 177. ■ Judgment Index Entries. Gernert, Granville | Charles A. Gernert, j April T. 3 870, 243 | Note | April 13, 1870. $1500.00 | April 1, 1870 | April 8, 1875 revived to January X., 1875, No. 695* Gernert, Granville J Charles A. Gernert, j January T., 1875, 695, Rev. of April T. 1870, No. 243 — April 8, 1875 | ¡ In Court of Common Pleas of Lehigh county. Charles A. Garnet 1 Amicable action to revive and continue v. Vthe lien for the term of five years of Granville Gernert, J judgment No. 243, April T. 1870. It is hereby agreed that the prothonotai'y of Lehigh county, enter an amicable action upon the records of the Courts of Common Pleas of the county aforesaid, as of No. 695 of Januai-y Term of 1875, and that a judgment be forthwith entered herein in favor of the plaintiff above named and against the defendant above named. And that the judgment aforesaid, No. 243 of April T. 1870, be revived according to the Act of Assembly, with costs. Granville Gernert, [l. s.] One of the mortgages of the building association was recorded July 28th 1874, and the other September 30th 1875. There were no liens between the judgment of Gernert and the mortgages of the association. The fund being insufficient- to satisfy both claimants, the auditor awarded it to the judgment. The association excepted, but the court (Meyers, P. J., of the Third Judicial District), dismissed the exception and confirmed the report in an opinion, inter alia, saying: “The object and purpose of the judgment-dockets are simply notice. It would seem that an entry of revival by am. sci. fa. on the judgment-docket is notice to subsequent purchasers and encumbrancers, whether the amount is liquidated and noted on the docket or not.- ' The only inference that legitimately can be drawn from such an entry of revival without the amount stated (so far as third parties are concerned), based on a written agreement of the defendant, that the judgment, referring to the number and term thereof, shall be revived and continued for another period of five years, is that it is a revival for the entire amount with interest. Between the judgment-creditor and debtor himself, no such inference is necessary as the latter would be at liberty to show at any time that’ the amount of the debt had been reduced. But as against third persons who may become purchasers or encumbrancers such inference seems to be plain and reasonable.” From the decree of the court the association took this appeal. In the agreement of April 8th 1875, and its entry upon the continuance and judgment index-dockets there is no mention of any sum whatever, no liquidation of any amount then due, nor intimation of what was the amount of the original judgment of April 11th 1870, nor any sum upon which an estimate can be made or an intimation received of what was, is, or is intended to become due. In other words there is no judgment at all. Only the reference to judgment No. 243, April Term 1870, five years before, and nothing more. This is not a compliance with the Acts of March 26th 1827, Purd. Dig. 820, sect. 5; and of March 29th 1827, Id. 822, sect. 18. A subsequent encumbrancer is not bound to inquire or look elsewhere than to the judgment-docket, and is not to be affected by constructive notice unless the entry in the judgment-docket conforms to the requirements of the law: The York Bank’s Appeal, 12 Casey 461; Ridgway,.Budd & Co.’s Appeal, 3 Harris 181; Fulton’s Estate, 1 P. F. Smith 214. Any purchaser, or lien-creditor, by looking at the judgment-index, can see at a glance all that is required, and no more notice or information of the existence of a judgment is requisite than is given by the entry of revival in this case. The number and term of the original judgment, the full name of plaintiff and defendant, and the number and term of revival are fully given; any person desiring to ascertain the amount of the original judgment, can do so in a moment.
89 Pa. 296Schaffer v. Mutual Fire Ins. (1879)
Error to the Court of Common Pleas of Lehigh county: Of January Term 1879, No. 163. Debt by Thomas Schaffer against the Mutual Eire Insurance Company of Lehigh county, upon a policy of fire insurance. The facts were substantially these: On April 8th 1876, David Scheirer, as the agent of plaintiff, called upon John Koch, the secretary of the defendant, for the purpose of effecting an insurance upon a dwelling-house of the plaintiff. The secretary accepted the risk, and a policy for $1500 was duly -prepared, but remained .unsigned by the insured. The company is a mutual one, and each member is liable to assessment as often as a loss requires it. Upon taking out this policy, a premium of $1.65 was required to be paid as well as a fee of $1.95, the latter to defray the incidental expenses of insurance. These were not paid at the time, but as Scheirer had another policy upon other premises to be transferred, he said he would pay for them both at the same time. On the same day Schaffer was enrolled as a member upon the books of the company, and a memorandum made of the amount of the insurance, the premium, and that the policy was assigned to the Whitehall Loan and Building Association. On the next morning, April 9th 1876, the building, in the absence of the insured, was destroyed by fire. On April 10th 1876, Scheirer called upon Koch, and asked for the policy, which was handed to him. He then offered the premium and the fee of membership, but before the money was received, informed the secretary of the fire. The secretary then refused, to accept the payment or to deliver the policy. Scheirer then stated that he had effected the insurance on the Saturday previous, and that it was agreed that he should pay when he brought the other policy for transfer. Koch replied that he must now submit the matter to his company. On May 13th 1876, an endorsement, signed by Koch, was made on the policy in these words, “Not satisfied by the time of filling out the policy and burned, therefore not insured, and can-celled.” Schaffer’s name was also erased from the book of membership and a similar entry was there made. Schaffer testified that after the fire, in a conversation with Koch, the latter stated “it (the house) was insured, but now it is not, because it was burned off.” The following by-laws of the company were printed on the hack of the policy and were a part thereof: “ Art. 20. Every person, on application for membership, shall pay the authorized agent, one dollar and ninety-five cents, for defraying the incidental expenses of the company.” “ Art. 22. All policies issued by this company shall bear the company’s seal, to be signed by the president and the insured, and attested by the secretary.” The plaintiff made several offers to prove the custom of the company in effecting insurances without a pre-payment of the premium and the fee of membership, which, under objection, were refused by the court. The defendant then moved for a • nonsuit, which the court, Harvey, P. J., granted, and subsequently refused to take off, in an opinion, inter alia, saying: “ Corporations may contract by parol within the sphere of their proper functions: Hamilton v. Lycoming Mutual Insurance Co., 5 Barr 339; Insurance Co. v. Porter, 3 Grant 123. Insurances maybe effected without the issuing and delivery of policies, and it is well settled that after application for insurance has been approved, and payment of premiums made on account, the contract is complete without the execution of a policy : Goodall v. New England Insurance Co., 25 N. H. 169; Whitington v. Firemans’ Insurance Co., 29 Barb. 312. When insurance is thus complete, it is always to be regarded as made upon the terms, and subject to the conditions expressed in the ordinary forms of policies used by the company at the time: Eureka Insurance Co. v. Robinson, Rea & Co., 6 P. F. Smith 256. This was not questioned at the trial; we were asked by the defendants’ attorney to direct a compulsory nonsuit, solely upon the ground that a consummated contract of insurance had not been shown by the plaintiff. There is great uniformity of authority holding it to be error, to submit a question to the jury of which there is no evidence: Whitehill v. Wilson, 3 P. & W. 405; Elkins v. McKean, 29 P. F. Smith 493; Raby v. Cell, 4 Norris 82. “As we were convinced, after the close of the plaintiff’s evidence, that there was no evidence of a consummated contract of insurance, we directed a compulsorjr nonsuit. Were we in error? That is the only question for judicial solution. Ordinarily the acceptance of a proposal to insure for the premium offered is a completion of the negotiation: Halhrock v. Commercial Insurance Co., 2 Dutch. 268. “The applicant must have done all on his part that is required to be done before he can assert that the contract is consummated. And when payment is the consideration, that gives life to its contract, it must be shown: Marland et al. v. The Royal Insurance Co., 21 P. F. Smith 393. The corporation defendant Avas a mutual fire insurance company chartered January 14th 1874, Avithin the G-eneral Insurance Act of April 2d 1855, Pamph. L. 211. Its charter enabled it to insure in all kinds of buildings, merchandise and other property against loss by fire on the mutual principle exclusively, and it Avas provided that all persons insuring therein ‘shall be members thereof during the period they remain so insured and no longer.’ “ It was required by the by-laws that any person on application for membership shall pay the authorized agent a stipulated fee for incidental expenses; that all policies shall be signed by the president and the insured; and that the charter and by-laAvs are a part of the contract of insurance. The plaintiff did not make a personal application for insurance; he sent David Scheirer, secretary of the building association, who Avas his creditor. In the conversation betAveen Scheirer and the secretary of the company nothing Avas said about the duration of the policy — hoAV much premium Avas to be paid — when the policy Avas to be signed by Schaffer. It Avas nowhere said by the secretary that the property Avas insured from that time on. I quote the following from the notes of testimony of Mr. Scheirer: ‘ I told him I wanted to get it insured right aAvay, as soon as possible, because the policy had expired. “ ‘Q. What did he say ? A. He looked on the policy and said they would take it. “ ‘ Q. When Avere you to pay the membership and the premium ? A. He had another policy in hand which was changed from Solomon Fenstermacher to the Building Association, and I told him he should make the policies all out — and make out a bill and I would pay him all at once as soon as I could fetch the policies, and then he said it Avas all right.’ “ This was the main testimony relied on to prove a complete contract. If it is true that it Avas further shown that the policy was made out, entered on the policy record and was ready for the signature of Schaffer, no entry was made of premium paid — no premium was charged. “ This evidence is of little value, as are the admissions of Koch after the fire, if the proof of the contract itself is radically deficient. The question here arises did Schaffer become a member of the Mutual Fire Insurance Company of Lehigh county, by reason of what took place between Koch and Schaffer April 8th 187 6 ? Schaffer had neither paid nor agreed to pay any premium. What losses or expenses of the company was he liable for ? What action could have been maintained against him upon what transpired between Koch and Scheirer ? None. He had entei'ed into no contract to pay anything. He had merely made an application that required a payment of premium to constitute him a member of the company. The by-laws contemplate an application and the payment of a fee not only by those whose application is accepted but by all applicants. Their applications must be accepted. The fee paid is not the premium required to be paid; that is paid when the policy is ready to be signed by the insured and delivered. The policies are executed in duplicates — one is given to the assured and the other retained by the insurer. “Where then, it may be asked, was there any evidence in the cause of the aggregatio mentium which is essential in the completion of any contract. Scheirer held a policy in this company and is presumed to have known the requirements of the charter and by-laws. He must have known that a contract could not be binding on the company, and not binding on Schaffer — could not he a contract to insure the safety of Schaffer’s property and no contract to render Schaffer liable for lossds falling within this class. He did not ask if the property was insured from that time on; but he wanted it insured right away, as soon as possible. “ The fact that he had not the money to pay the premium is very persuasive evidence that he did not approach the office of the company intending to effect a binding insurance upon that day. The payment of this premium was the condition precedent to the insurance. He did not ask the secretary to waive it, but contented himself in saying he would pay when he took the policy. In Mar-land v. The Royal Insurance Co., supra, it appeared that some question was asked about payment of the premium when the person asking was assured that he was safe without paying then. It was held that this was no excuse for the non-payment, Mr. Justice Agnew says: ‘The true-and easy explanation is, that they did not expect that a fire would take place so speedily and thought they would have time enough to close this business.’ These words are peculiarly applicable to this case. Schaffer must have known that he was not a member of the company for he neither paid, offered to pay nor authorized any one to pay one cent to that company on April 8th 1876. No policy was held in trust for him. He could not have understood that he was entitled, as a matter of right, to the undelivered policy. It was because of this want of mutuality in the alleged contract as set up by the plaintiff that the court directed a nonsuit; what was done was inchoate and not complete; it needed the payment of the consideration to vitalize the contract. Viewing the alleged contract in this light we attach no importance to what the secretary did and said after April 8th 1876. So that the application would grow into a consummated contract it was necessary to have a policy, to enrol it on the record of the company and to present it for the signature of the assured. When Koch said Schaffer was insured but now that there was a fire he was not injured, merely meant that if no fire had occurred he would have paid the premium according to and concluded the contract. This evidence gave to what was said between Koch and Scheirer no greater force than the words employed at that meeting. If they failed to consummate the contract no act of Koch subsequently done could operate to consummate it. Payment of the premium was required of Schaffer to constitute him a member. “ This conclusion is regretfully reached. Insurance companies should be held to a very strict rule of accountability. The tendency of these companies to invoke legal technicalities to escape liability .should not be encouraged by the courts. But while this rule may produce salutary results and may give stability to this class of contracts, it does not follow that insurance companies can have no legal defence to a suit upon a policy. When one is made to appear, it is the duty of the court to see that it be sustained. Any other course would be unjust. We have been forced to the conclusion that there is no merit fh the plaintiff’s contention, and that he has offered no evidence -which, under the rules of law, as we understand them, entitles him to a verdict.” Plaintiff took this writ, assigning for error the rejection of the offers of testimony and the refusal to take off the nonsuit. The facts show a contract to insure, and warrant the conclusion that the contract was consummated. Does an insured offer to pay when no contract is made ? Does the insurer execute a policy and enrol a member without such contract ? Or cancel a policy and erase an enrolled membership, if no insurance was effected ? This case is alike in principle with that of Bodine et al. v. Exchange Fire Ins. Co., 51 N. Y. 117. In the case at bar and that of Bodine there was a waiver of pre-payment, and the agreement of insurance was made in both cases on the understanding that the fees should be paid on a subsequent day. But in the New York case there was a clause in the policy containing a condition that “ no insurance should be binding until premium was paid.” In the case at bar there was no such condition anywhere. In the former case, there was a motion for a nonsuit, on the ground that the evidence was insufficient; the motion was denied, and on exception taken by defendant the decision was affirmed. The court below charged that if the company, through their agent, so conducted the transaction that Bodine believed himself to be insured, they were liable; that the agent had a right to waive pre-payment and trust the plaintiff for the premium. An agent can waive the pre-payment of the premiums and bind the company: Bodine et al. v. Exchange Fire Ins. Co., supra; Hotchkiss v. Germania Ins. Co., 5 Hun. 90; Farmers’ Ins. Co. v. Taylor, 23 P. F. Smith 354; Sheldon et al. v. Atlantic Fire and Marine Ins. Co., 26 N. Y. 460. Payment of the premium and the fees and the applicant’s signature to the policy were conditions precedent, and a failure to comply with any of them avoided the policy. The agent of the plaintiff had neither authority nor money to perform these conditions. ■ See Maryland v. Ins. Co., 21 P. F. Smith 393. There was no evidence from which a waiver by Koch could be inferred, nor was it within the scope of his authority.
89 Pa. 303Wagner's Appeal (1879)
Appeal from the Orphans’ Court of Berks county: Of January Term 1879, No. 223. This was a citation on the petition of George F. Baer, administrator d. b. n. c. t. a. of Henry M. Albright, deceased, to Harriet Wagner and Henry Brobst, surviving administrators of Franklin V. Wagner, deceased, to show cause why they should not be required to pay to the petitioner one-half of $2433.33, and one-half of $9598.50, proceeds of real estate sold by order of the Orphans’ Court of Berks county. The petition sets forth, inter alia, that on the 17th of-September 1853, Maria Catharine Wagner died unmarried, without issue, and leaving as her heirs, her mother, .Mrs. Catharine Wagner, her brother Franklin V. Wagner, and a niece, Valeria Catharine Al-bright, a minor child of a deceased sister intermarried with Henry M. Albright; that said Maria Catharine Wagner died seised of an undivided third part of a messuage and lot of ground in the city of Beading, and also of an undivided third part of a tract of land and tavern-stand situate in Upper Bern township, Berks county; that upon the death of Maria Catharine Wagner, her mother Catharine Wagner took a life-estate in the said properties, with remainder in fee to Franklin V. Wagner and Valeria Catharine Albright aforesaid. That on the' 25th day of April 1856, Mrs. Catharine Wagner presented a petition to the Orphans’ Court of said county, setting forth, inter alia, that she held a life-estate in the third part of the property in the city of Beading; that it was for the interest of the said Franklin V. Wagner and Valéria Catharine Albright that the same should be sold, and praying the appointment of a trustee to sell the said property under the Act of April 3d 1851, Pamph. L. 305; whereupon the court appointed Franklin V. Wagner as such trustee, .who sold the same for $2433.33, and held the same in trust for the parties interested. That on the 21st of September 1865, Franklin V. Wagner, as the guardian of Valeria Catharine Albright, and representing all the parties in interest, presented a petition to said court, setting forth that the rents of the property in Upper Bern township were insufficient to keep the same in repair and be productive of revenue to those interested; that the buildings were in a state of dilapidation ; that it would be to the advantage of the parties interested to sell the same and re-invest the proceeds for their use ; that he was desirous for himself and his ward that the property should be sold, so as to bar any estate or remainder, and give the purchaser a clear and indefeasible title; whereupon the court ordered the sale as prayed for, and that it was sold for $9598.50; that on the 24th of February 1866, the said Franklin V. Wagner was appointed trustee to invest the said sum and pay the interest to Mrs. Catharine Wagner during her life, and upon her death to divide the principal equally between himself and the said Valeria Catharine Albright. The petition further sets forth that on the 10th of May 1866, the said Valeria Catharine Albright died, a minor, unmarried and without issue, leaving her father, the said Henry M. Albright, her sole heir ; that on the 1st of September 1865, the said Franklin V. Wagner died, and the said Harriet Wagner and Henry Brohst were appointed and are still acting as his administrators ; and that on the 7th of March 1868, the said Henry M. Albright died, the said George F. Baer becoming his administrator d. b. n. c. t. a., and that on the 7th of February 1875, the said Mrs. Catharine Wagner also died; whereupon the one-half of the aforesaid sums became due and payable to the legal heirs of the said Valeria Catharine Albright, whom the petition represents; and that the same have not yet been paid by the administrators of said Franklin V. Wagner, deceased. The petition therefore prays for a citation to show cause why they should not be required to pay the said sums of money to said petitioners. The answer sets forth: 1. That the real estate, one-half of the proceeds of which is claimed by the petitioners, wras devised to said Maria Catharine Wagner by the will of her father Valentine Wagner. 2. That the proceedings to convert the said real estate into money was commenced for a specific purpose, and not for the purpose of converting it into money; that the sale did not work a conversion of the estate into personalty during the life of the widow, during which it remained realty, and that as Valeria Albright died May 10th 1866, the funds, for all purposes of descent, remained real estate and descended accordingly, and 3. That Henry M. Albright is not in the present case the heir at law of the said Valeria Albright, not being of the blood of the first purchaser, and is not entitled to inherit the same, and praying ■that the petition be dismissed with costs. The question in dispute was argued on the petition and answer, including a reference to the original proceedings under which the several sales were made. The court, Sassaman, J., delivered the following opinion: “ In this case there is no doubt that th'e Penn street property was sold under the provisions of the second paragraph of the first section of the Act approved 3d April 1851. • F. V. Wagner, it appears, was the guardian of Valeria C. Albright, and co-tenant with her, upon the death of his mother, Catharine Wagner, who was also grandmother of his said ward. The said Frank V. Wagner was also appointed trustee for the sale of said premises. He sold them and held the money in trust for the interest of his mother and for the said Valeria C. Albright, his said ward, upon the death of his mother. “ Under the decision in Large’s Appeal, 4 P. F. Smith 383, this sale converted the land into personalty. The proceeds, for the purposes of the life-estate, retained the character of land; but on the death of the life-tenant they are to be distributed as money. The petitioner is therefore entitled to one-half-of $2433.33, with the interest from the date of the death of Catharine Wagner, which, it seems, occurred on the 7th of February 1875. “ We have no doubt that the real estate in. Upper Bern township was sold under the provisions of the third paragraph of the thirty-first section Act of 1832. F. V. Wagner, the guardian of said Valeria, presented his petition for an order-of sale to the Orphans’ Court, on the ground that the rents, issues and profits of the land were insufficient to keep the same in repair, and to the production of revenue to the parties interested, to wit, ‘himself and his mother, the said Catharine Wagner,’ the only parties interested besides his said ward; that the buildings were in a state of dilapidation ; that it would be much to the interest of the parties interested in said real estate and to their advantage that the same should be sold; and after the same was sold, the said Catharine Wagner and Henry M. Albright, the father of Valeria, joined in a petition to the court that he, the said F. V. Wagner, should invest the money — the proceeds of the sale for the parties interested — which was accordingly done. “ Under the decisions in Pennell’s Appeal, 8 Harris 515 ; Grider v. McOlay, 11 S. & R. 224; Biggert v. Biggert, 7 Wright 563, and Dyer v. Cornell, 4 Barr 359, we are constrained to hold that money arising from the sale of land by order of the Orphans’ Court, whether it belong to an infant, a feme covert, or a male of full age, is to be considered simply as money and nothing else. It cannot retain its original character for ever. It has no ear-marks by which it can be traced and distinguished from other personal estate. The necessity for a perfect conversion- at some time must be apparent, and the proper time for that is when the money has vested in the party entitled to it. This view has the support of common sense, and is absolutely sustained by authority ; and it matters not whether the moneys of a minor have been in the hands of a guardian or any other legally constituted trustee. “ The proceeds, for the purposes of C. Wagner, may have been treated as lands, so far as her income therefrom was affected, but as the estate of Valeria O. Albright, they would be distributed as money. The petitioner is therefore entitled to one-half of $9598.50, with interest from said 7th of February 1875.” “ The Act of 18th April 1853 especially provides that nothing in that act contained shall be taken to repeal or impair the authority of any Act of Assembly authorizing the sale of real estate, so that decisions under that act do not interfere with the views above expressed. “The 3d section of Act of 8th April 1833 provides that where a person dies intestate without issue and unmarried, if either the father or mother be dead at the time of the death of the intestate, the parent surviving shall enjoy such personal estate absolutely. In this case all the other partios are dead in such order as appears upon the facts presented by the citation and answer. The administrator — the present petitioner — is the proper legal representative to whom the above several sums of money, with interest, are due and payable.” From this decree this appeal was taken by the respondents. Under the petition for the sale of the Reading property, only so much of the proceeds of the sale was converted as was necessary to meet the specific purpose therein set forth; the rest continued to be realty: Pennell’s Appeal, 8 Harris 515. It is not clear that the second sale was held under the Act of March 29th 1832. The petition sets forth that “they” (meaning the persons interested) “ desire to have it sold for himself and his ward, so as to bar any estate or remainder of any of the parties interested,” and “ give the purchaser a clear and indefeasible title.” These words are almost identical with-those to. be found in the “ Price Actand although some of the requirements of the act have not been complied with, yet the saving clause in the fifth section, that no error in the proceedings shall prejudice the title acquired by the purchaser, will effectually relieve the proceeding from invalidity. We aver, therefore, that the petition of 1865, for the sale of the minor’s interest in the Upper Bern property, and the sale granted in pursuance thereof, was under the Act of 1853, and as this act, by its very provisions, substituted the money for the land, that the decree of the court below is erroneous : Holmes’s Appeal; 3 P. F. Smith 339. As to the real estate sold under the Act of April 3d 1851, there can be no question about the conversion: Large’s Appeal, 4 P. F. Smith 383. The second sale was not under the “Price Act.” It has not been affirmatively shown that it. was under said act; there is nothing to justify such a conclusion but the mere inference drawn from the use of terms in the petition.
89 Pa. 308First National Bank v. Rex (1879)
Error to the Court of Common Pleas of Lehigh county: Of ■January Term 1879, No. 170. Assumpsit by George Rex against the First National Bank of Allentown. The defendant is a corporation chartered under the National Bank Act of January 3d 1864. On March 31st 1869, Rex called at the bank and made a special deposit of certain bonds of the United States. William H. Blumer, the president of the bank gave him a certificate, of which the following is a copy. “ I certify that George Rex has on deposit for safe-keeping at the First National Bank of Allentown, Eight Hundred and Fifty Dollars in 5-20 United States bonds. “Wm. H. Blumer, President. “Allentown, March 31st 1869.” The bonds were received without any compensation, and were kept in the vault with the other valuable papers of the bank. It was shown that the bank was in the habit of thus receiving special deposits of bonds and other valuable securities for safe-keeping. No charge was made for thus keeping them, or collecting the interest thereon, and the president testified that the same care was exercised in keeping the papers of. other people as was exercised in the keeping of the papers of the bank. The interest on the bonds was regularly paid to Rex by the son of the president, who was the cashier of the bank. In the spring of 1877 the banking firm of William H. Blumer & Co., of which firm William H. Blumer was a member, became financially embarrassed, and in order to raise money to meet the claims of their depositors the bonds of Rex, with those of other depositors, were taken from the vault of the National Bank and hypothecated with a broker in Philadelphia, and the money obtained therefrom was used by the firm. Rex testified that he called at the bank and asked Jacob A. Blumer for the bonds, and he said he could not give them to him as they had been sent to Philadelphia for safe-keeping ; that the bank had sent all their papers of any worth to Philadelphia, and that those of Rex were among them; that he would get them back, and' mentioned a particular time for their return. Mr. Fink, who had been sent to the bank by Rex with the certificate to procure the bonds, also testified that William H. Blumer had told him that the bonds had been sent to Philadelphia for safe-keeping. William H. Blumer being recalled, testified that the bank never had any bonds or papers in Philadelphia for safe-keeping. The defendant upon this evidence moved for a nonsuit which the court refused. It then, without offering any- evidence, submitted the following points, to which the answers of the court, Albright, P. J., are appended: 1. Under all the evidence the verdict must be for the defendant. Ans. “ This instruction is refused.” 2. The defendant being a bailee without reward and there being no evidence of gross negligence resulting in the loss, the verdict must be for the defendant. Ans. “ Before plaintiff can recover he must satisfy you that the bonds were lost through the gross negligence of the defendant; the question of the degree of negligence is for the jury.” 3. It appearing in this case that the bonds were abstracted by the president for his own purposes, and there being no proof that the bank knew or had any reason to believe that the president was dishonest, the verdict should be for the defendant. • Ans. “ If the bonds were abstracted by the president without the knowledge of the bank the defendant is not liable. Further answer to this point is refused, except so far as the same is answered in the general charge.” In the general charge the court, inter alia, said : “ When a party delivers to another goods without any reward on the part of the bailor to the bailee, or when the bailee undertakes to preserve the property thus delivered without any pay, that is what is called a ‘ gratuitous bailment,’ and the bailee is required to exercise what is called only £ slight diligence’ in taking care of the property. * * * “And in a case like the one before us, when slight care is required to be exercised on the part of the bailee the defendant is liable only in case of gross negligence. Negligence is defined to be the absence of care, or the omission by a party to exercise that diligence which a prudent man ordinarily exercises in regard to his own property. Has the defendant in this case been guilty of that degree of negligence, viz.: gross negligence ? * * * “ It is also alleged on the part of the plaintiff, that William H. Blumer had used these bonds in Philadelphia to raise money for his own private purposes. This alone would not make the bank liable, if William H. Blumer or any one else abstracted those bonds or stole them ; but if you can find from the evidence that William H. Blumer did use these bonds for his own private purposes, and that such use by him was known to the officers of the bank, and there was an assent on their part to such improper use, or no effort was made to recover the bonds, if they were recoverable, that would be negligence on their part; or if you find that the proper officers of the bank did send these bonds to Philadelphia for safe-keeping, the relation existing between Rex and the defendant would be.changed from what it originally was. If the First National Bank of Allentown for its own convenience or profit selected some other depository for these bonds, it would be liable in case of loss even if but ordinary negligence were shown.” "Verdict and judgment for plaintiff. The defendant took this writ and assigned for error the answers to the above points and the portion of the charge noted. The taking of special deposits for the accommodation of the depositor is not within the authorized powers of a national bank: Wiley v. First National Bank, 47 Yt. 546 ; First National Bank of Charlotte v. National Exchange Bank, 2 Otto 122; Whart. on Neg., sect. 470. Although this court has held that national banks may assume liability for the loss of special deposits, we respectfully submit that under the ruling in the Bank ¿'.-Bank, supra, these decisions should he re-examined. There was not sufficient evidence, of gro^s negligence to submit to the jury. The bank was a mere depository of the bonds without profit or reward. It kept them in the same vault and with the same care that it kept all the valuables in its custody. The person who took the bonds and used them for his private purposes, was the president of the bank, and as such, was privileged to, go into the vaults at his pleasure. No one could deny his access to any part of the bank or could question his authority to supervise and examine the personal property owned by or in charge of the corporation. Unless, then, the bank had knowledge that the president was a dishonest or unfit person to exercise the authority of the office, and continued him in the employment or trust afterwards, it cannot be held liable. There must be gross neglect on the part of the bank, or there is no civil liability in a case like this: Ooggs v. Bernard, 2 Ld. Raym. 909 ; Story on Bailments, sect. 23; Whart on Neg., sect. 469; Foster v. Essex Bank, 17 Mass. 479. A bank is not liable for the default or dishonesty of its officers, provided due care was exercised in the selection of them : Whart. on Neg., sect. 469; Tompkins v. Saltmarsh, 14 S. & R. 275; Lloyd v. West Branch Bank, 3 Harris 176; Scott v. National Bank of Chester Valley, 22 P. F. Smith 477; First National Bank of Carlisle v. Graham, 29 Id. 116; Smith v. First National Bank of Westfield, 99 Mass. 605. It is the duty of the court to instruct the jury fully as to what constitutes negligence: P., F. W. & O. Railroad Co. v. Evans, 3 P. F. Smith 250; and the court should have defined what gross negligence is. If.it is the custom and habit of a national bank to receive bonds, or other valuable securities on deposit, for safe-keeping, with the privity and knoAvledge of the directors and officers of the bank, a liability for safe-keeping is raised, and if the securities are afterwards lost or stolen through the gross negligence of the bank, the bank becomes liable for the value thereof: First National Bank of Carlisle v. Graham, 4 Norris 91; Same v. Same,' 29 P. F. Smith 106; Scott v. First National Bank of Chester Valley, 22 Id. 471. Gross negligence is the want of that care which every man of common sense takes of his own property : 1 Chit. Con. 662. The contract of bailees, without reward,-is not merely for good faith but for such care .as persons of common prudence in their situation usually bestow upon such property. If they omit such care it is gross negligence: Tracy v. Wood, 3 Mason 132; Scott v. First National Bank of Chester Valley, 22 P. F. Smith 471; Lancaster County National Bank v. Smith, 12 Id. 47; Story on Bailments 564. • This case is identical with that of the First National Bank of Carlisle v. Graham, 4 Norris 91.
89 Pa. 314Spencer v. Colt (1879)
Error to the Court of Common Pleas of Lehigh county: Of January Term 1879, No. 166. Debt by Henry Colt against Osborn Spencer and Jacob Mauser, on fifteen bonds executed by defendants and delivered to plaintiff to secure the payment of $15,000, the purchase-money for a tract of land. The facts are stated in the opinion of this court. At the trial before Harvey, P. J., the defendants proposed to ask the following questions: “What .was the inducement that led you to sign the bonds and mortgage ?” Objected to as incompetent and irrelevant. The court said: “ The court is of the opinion that the jury is to determine what induced the parties to sign the instrument from what was said and done before the time of signing, and that it is improper to allow the witness to state the intention or purpose that was in his mind at the time of the execution. We think it is incompetent, and sustain the .objection.” (Seventh assignment of error.) Q. “ Did you sign these bonds and the mortgage, relying at the time upon the contemporaneous agreement in parol, that Mr. Colt was only to look to the real estate for the payment ?” Objected to as incompetent. The' Court: “ I am of the opinion that it is proper for the defendants to prove by legitimate proof what is contained in the offer, but I am of the opinion that it is not proper to present it to the witness in this form for the purpose of getting out of him what intention or purpose existed in his mind at the time of the execution of the paper. The objection, therefore, is sustained.” (Eighth assignment.) Q. “ In consequence of the acts and declarations of Mr. Colt, did you sign these papers ?” Objected to as incompetent. “ The court permits the defendants to give all that was said and done before and at the time of the execution of the bonds, but will not permit them to give any intention that existed in the mind at the time of their execution, and as the offer seeks only to give the intention wTe sustain the objection.” (Ninth assignment.) In the general charge, the court, inter alia, said: “ In considering it (the alleged contemporaneous agreement), you are admonished that the bonds are primarily regarded as the voluntary and lawful contract of the parties, and before this presumption can be overthrown, it is incumbent on the defendants to prove the alleged contemporaneous parol agreement or stipulation by evidence that is clear, precise and indubitable. (First assignment.) “ Hence, you will observe that it must be shown that the alleged condition or stipulation was agreed to by Mr. Colt. In other words, it must be shown that Mr. Colt, on the one hand, and Messrs. Spencer and Mauser on the other, agreed that the alleged condition or stipulation should be part of this cóntract. * * * Or, is it probable that the defendants might have claimed exemption from personal liability; might have done and said all they claim to have done or said, and yet Mr. Colt did not assent to it ? (Second assignment.) “ The defendants could have called him (meaning John D. Stiles, the subscribing witness), and it must be confessed that the omission to call him is as much, if not more, the duty of the defendants than of the plaintiff. (Third assignment.) “If you find that he (meaning Mr. Colt), has shown himself forgetful of some of the material statements made when the bonds were executed; if he has given reasons, or testified to things that are irreconcilably inconsistent with the undoubted proof as it appears in the cause, it will be some reason why you should not consider his testimony potent enough to create a beneficial doubt in his behalf. (Fourth assignment.) “ If the defendants have established that it was agreed between them and Mr. Colt, that the alleged parol condition should he a part of the contract, and it was the operating cause of the execution of these bonds, and this has been shown by clear, precise and indubitable proof, then these bonds must b.e regarded as containing that stipulation. (Fifth assignment.) “ If the defendants have established, that it was agreed between them and Mr. Colt, that the alleged parol condition should be a part of the contract, and it was the operating cause of the execution of these bonds, * * * then these bonds must be regarded as containing that stipulation.” (Sixth assignment.) The verdict was for plaintiff, and after judgment the defendants took this writ and alleged that the court erred as set forth in the foregoing assignments of error. It is not necessary that the evidence should be clear, precise and indubitable. This rule is too stringent. All that is required, is that the evidence should be satisfactory : Young v. Edwards, 22 P. E. Smith 257. We do not seek to vary or contradict the terms of the written contract, but only to control its legal operation by a contemporaneous parol agreement, on the faith of which it was executed and without which the bonds would not have been signed: Chalfant v. Williams et al., 11 Casey 212; Martin v. Berens, 17 P. F. Smith 459 ; Caley v. Phila. & Chester County Railroad Co., 30 Id. 363 ; Graver v. Scott, Id. 80. Assuming it to be the rule that the defendants must satisfy the jury that the contract was the inducing and operating cause, then it is respectfully contended, that wherever a party to the action is a competent witness, and the intent or motive with which an act is done is an essential ingredient to sustain the action, it is permissible for him to testify to that intent: Snow v. Paine, 114 Mass. 520 ; Thatcher et ux. v. Phinney, 7 Allen 149; Lombard v. Oliver et al., Id. 155; Sowers v. Dukes, 8 Minn. 23 ; Spaulding v. Strang, 36 Barb. 310; Courtland County v. Superintendent of the Poor of Herkimer County, 44 N. Y. 22; Broom’s Maxims 352. To reform a written instrument the evidence must be clear, precise and indubitable: Martin v. Berens, 17 P. F. Smith, 257; Stine v. Sherk, 1 W. & S. 195; Miller v. Smith, 9 Casey 386; Irwin v. Shoemaker, 8 W. & S. 75; Dean v. Fuller, 4 Wright 474; Woods v. Farmere, 10 Watts 195; Hart v. Carroll, 4 Norris 508. The inducement or motive of the parties cannot be given in evidence. These are questions for the jury to be inferred from the facts : Lancaster Bank v. Smith, 12 P. F. Smith 47 ; Irwin v. Shoemaker, supra; Court-land County v. Supt. of Poor of Herkimer County, supra.
89 Pa. 320Erdman v. Barrett (1879)
89 Pa. 324First National Bank v. Hoch (1879)
1. A national bank has no charter, statutory or incidental powers to act as a broker or agent in the purchase of bonds and stocks. 2. Where a paper on its face shows the transaction not to be within the usual course of business of such a bank, it is not binding on the bank, although signed by the president thereof as such officer. 3. The president is the executive agent of the board of directors, within the ordinary business of the bank, but cannot bind it by a contract outside thereof without special authority. 4. I-I. left a thousand dollars with the president of a national bank and took the president’s receipt in these words: “Received of H.$1000, to be invested in bonds of the city of Allentown, bearing seven per cent, interest. Interest on said deposit to be allowed from this date and to be accounted for on demand.” The money was misappropriated, and II. sued the hank there for.- JHeld, that he could not recover.
89 Pa. 328Macungie Savings Bank v. Hottenstein (1879)
1. The rule that the vicious element in an usurious contract survives in all its transmutations, applies only to cases in which the obligor or promissor remains the same. 2. For several years H. had endorsed the notes of G. There were various renewals of these notes, when finally the bank discounted the note of H., with B. as endorser, and surrendered to H. all the notes of G. endorsed by II. On all these notes usurious interest was charged and taken. In a suit against II., on his own notes, Held, that H. was' not entitled to defalk the usurious interest paid on the notes of G.
89 Pa. 331Lazarus v. Fuller (1879)
89 Pa. 333Grim's Appeal (1879)
Testator devised to one of his sons the whole of his real estate, charged with the payment of §5500, to he equally divided among his other five children. It was found as a fact that the real estate was of the value of §6600. Held, that the testator intended an equal distribution of his estate among his children. Held further, that the devisee being the first taker under the will was presumably the favorite of the testator. Held further, that the personal property of the testator’s estate being insufficient to pay his debts the devise and legacies should abate pro rata.
89 Pa. 336Gring's Appeal (1879)
1. The right to subrogation is one of equity merely and due diligence must be exercised in asserting it. Laches in taking advantage of the right will forfeit it as against one who is injured by such laches. 2. A joint judgment debtor was forced under execution to pay the whole debt. It was afterwards shown that he was only a surety. He neglected to have the judgment marked to his use until more than a year after its payment. Meanwhile the property of the principal debtor was sold and the surety claimed that he was entitled to be subrogated to the rights of the creditors under the judgment as against subsequent judgment creditors. Held, that he had not exercised due diligence in having the judgment marked to his use, and his claim could not be allowed.
89 Pa. 340Merkel's Appeal (1879)
1. Advancement is a question of intent; that intent must he proven to have existed at the time of the transaction and by the contemporary acts and declarations of the parties. 2. Verbal declarations of a parent that money for which he held a note or bond against a child, was intended as an advancement, are insufficient to establish it. They must be shown to be a part of the res gestee and accompany the acts done. 3. If, however, there be evidence of acts done or declarations made at the time of the transaction, tending to prove that the money was so intended by the father, his subsequent acts and declarations in recognition of the original act and intention, are entitled to weight.
89 Pa. 343Clader v. Thomas (1879)
209. Ejectment by A. J. Clader and Martin S. Croll, administrators of D. Clader, deceased, and S. K. Grim, against T. Schaeffer, S. Thomas and others, to recover a tract of land in Berks county. Jacob Schaeffer devised the land in dispute to his son, T. Schaeffer, for $1200, to pay $50 per annum; the first $50 to be paid to the eldest son, the next $50 to the next child in age, and so on to each of his four children in rotation, until the $1200 had been paid.
89 Pa. 346Harvey v. Vandegrift (1879)
1. The rule which allows extrinsic evidence to explain the extent of the’ subject sold has no application when a subject-matter exists which satisfies the terms of the instrument of conveyance. 2. A. conveyed' a tract of land to B., the deed therefor containing no reference to any servitude thereon. A. conveyed an adjoining tract to 0., the deed containing a grant of a fishery “ to the distance of twenty-eight perches, down the river from the place of beginning,” which covered all of B.’s water front. In a conveyance from O. to D. there was a grant of the same right of fishery “ as it Ij^s'been heretofore conducted.” B. erected a wharf on the river front of his land, and D., alleging that his fishery was injured thereby, brought an action against B. for damages. Held, that the language “ as it has heretofore been conducted,” referred only to the manner in which the fishery was conducted and had no necessary relation to the extent thereof. Held further, that there was no such ambiguity in the grant as required extrinsic evidence of its extent; that it was the duty of the court to declare the proper construction of the grant as a matter of law, and that the grant of the fishery to plaintiff was not notice, either actual or constructive, to the defendant, that the fishery extended up to, and beyond his pier. 3. The court below admitted evidence to show the extent of the fishery. The admission of this evidence was not assigned for error, but the defendant asked the court to construe the language of the deed containing the grant and to define its extent as a matter of law. Held, that this request was equivalent to a motion to strike out the parol evidence which had been previously admitted, and it was error to refuse to so charge.
89 Pa. 353State Bank v. Rhoads (1879)
1. The rule of evidence in this state that a party to commercial paper, negotiated in the ordinary course of business, before maturity, was incompetent to testify to anything tending to impeach its validity, before or at the time it passed out of his hands, is entirely changed by the Act of 1869, declaring that “no interest or policy of law «shall exclude a party or person from being a witness in any civil proceeding.” 2. All witnesses are now prima jade competent, so far as interest and policy of law are concerned. The design of the act was to make competent all who are not within the scope of the proviso ; but it was not intended to convert into competent testimony that which was before incompetent.
89 Pa. 358Ballard v. Ward (1879)
1. No right to adopt a child exists at common law. In Pennsylvania the right is based upon the Act of May 4th 1855, which provides for adoption by decree of the Court of Common Pleas, and tile Act of April 2d 1872, which provides for adoption by deed. 2. In 1863 W. agreed by deed to adopt his niece as his daughter. In 1870 t W. died intestate. Held, that while the Act of 1872 was plainly intended to be retrospective, a proceeding under it could not divest the estate of the children of W. which had vested at his death. 3. Possession delivered or taken in pursuance of a parol gift is not sufficient to take it out of the operation of the Statute of Frauds; besides such possession there must be improvements not capable of compensation in damages.
89 Pa. 363Connecticut General Life Insurance v. McMurdy (1879)
Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1878, No. 96. Debt by Anna J. McMurdy against the Connecticut General Life Insurance Company, upon a policy of life insurance for $10,000, issued by the defendant company upon the life of John IT. McMurdy, the husband of plaintiff. The declaration consisted of two counts. The first alleged a contract of insurance, being the policy issued -by the company, and averred compliance with all the conditions and limitations of said policy- The second count averred a certain other contract of life insurance between the defendant and the insured, dated the 20th of March 1875, and consisting of a policy of life insurance, and a certain application therein referred to, and the contemporaneous explanation and agreement as to the meaning of certain portions of said application, and the answers thereto, more particularly detailed thereafter. ' Then followed a copy of the policy, with a copy of the application referred to therein, and the following averment of the contemporaneous explanation made by the defendant’s medical examiner: “And whereas, among the questions in the said application to be propounded to the insured by the defendant’s medical examiner (who, as is therein and thereby stated and agreed, was to fully explain the questions), were the following: (Form B.) 5. Have you ever had any of the following diseases? Answer (yes or no) opposite each. Fits or convulsions ? * * * 8. Have you ever had any malformation, serious illness, or personal injury, or undergone any surgical operation ? If so, state fully its nature, durations and results. “And whereas, the said John H. McMurdy was examined prior to and for the purpose of the contract of insurance, so as aforesaid entered into with him by the said defendant, by oiie William M. Orth, the medical examiner of the defendant at Lafayette, Indiana, and in the presence of the general agent for the defendant for the state of Indiana; and whereas, the foregoing questions were propounded in the presence of the said general agent to the said Mc-Murdy by the said defendant, through its medical examiner; and whereas, in answer to one of the said questions, the said insured began to describe a wound he had received, and the said defendant, through its said medical examiner, thereupon asked the said insured some questions as to its character and location, and then and there stated that the injury which the insured was describing did not amount to anything, and was not worth describing, and explained, by its said medical examiner, and by the presence and assent of the said Latson, its general agent for the state of Indiana, to the said insured, that the meaning of the questions in the application were to obtain from the insured a statement of all matters that would leave a permanent effect or would influence the general health of the insured afterwards. And the said defendant, through its said general agent Latson, then and there further stated to the insured that what it, the said defendant, desired to know were all such matters as would influence the risk or chances for life of the insured, and that any temporary hurt could have no permanent effect. “ Andhvhereas, the said insured had not had fits or convulsions, or any malformation, serious illness, personal injury, or any of the diseases mentioned in the said form B, nor undergone any surgical operation, any one of w'hich diseases, malformations or operations, or any two or more combined, had left a permanent effect on his health; but all such diseases, malformations, surgical operations, &c., if any such there had been, produced only a temporary hurt, and left no permanent effect upon the insured, and did not influence his general health, or the risk or chances for life, &c.” To both counts the defendant pleaded the general issue, and the following: 1. A special plea, setting forth that the policy of insurance upon which suit was brought was issued upon an application signed by the plaintiff and the insured, in which the latter declared and warranted that each of the answers made to certain questions 'therein-after enumerated, were the full, complete and only answers made by the insured; that they were correctly recorded, and wholly and strictly true, and that no statements respecting the physical condition, health, personal or family history, of the insured, other than those therein made, had been made to any agent, solicitor, examiner or other person on behalf of the defendant; that it was agreed in this application that it should form the basis and become a part of the contract between the parties, and including all its provisions and conditions; that it was further agreed therein that if any answers made by the insured contained any untrue or evasive statement or misrepresentation, or concealment of facts, the policy granted upon the application should be void; that the insured had, in answer to the question propounded to him, whether he had ever had fits or convulsions, answered “No,” and that this answer was untrue, evasive and false, inasmuch as the insured had had fits or convulsions prior to making this answer and statement in the aforesaid applications, to wit, in certain months and years specified. 2. A second special plea, to precisely the same effect as the first, except that the false negation made by the insured was stated to be in reply to the question whether he had ever had any malformation, serious illness or personal injury, or undergone any surgical operation ; in which case he was required to set forth its nature, duration and results. The answer- was stated to have been false, inasmuch as the insured had had a serious illness or personal injury prior to the time of making said answer, viz., a blow upon the head with a club, and another severe blow upon the head, causing a fracture of the skull, and that a serious illness resulted therefrom. To these pleas the plaintiff replied, denying that the insured had had fits or convulsions, serious illness or personal injuries, and issue was joined. At the trial, before Briggs, J., the plaintiff offered, in evidence the policy, dated March 20th 1875, and proved the death of the insured, June 5th 1875. The court, under objection, then admitted the report of Dr. Orth, the medical examiner of the company, as to the condition of the insured’s health at the time of the application. (1st assignment of error.) The court, also, under objection, admitted the answers to several questions put to Dr. Orth and to Mr. Latson, the agent of the company (the latter having been examined on a commission). From these answers it appeared that the insured was a man of extraordinary physical development, and seemed to be in perfect health; a man of correct habits, vigorous, well built, with perfect physique and stalwart frame, Said Mr. Latson: “ He seemed to be a man of the most perfect health I ever knew.” The admission of these several answers constituted the 2d, 5th, 6th and 7th assignments of error. The third assignment of error was the admission of the following interrogatory to Mr. Latson, and the answer thereto: “ Did you ever have any conversation with McMurdy in relation to the insurance upon his life ? If so, state what was the nature of the conversation ; what gave rise to it; whether or not you represented the company in any capacity ; and his question in regard to the policy and your answer thereto. Was any one else representing the company, or its interest, present at the time ? If yea, state who it was, and what, if any, were his answers to McMurdy’s question ?” Answer: “I had a conversation with John H. McMurdy in respect to insurance upon his life. I represented the Connecticut General Life Insurance Company as general agent for the state of Indiana. He, through me, made application for an insurance upon his life, and Dr. Orth was the examining physician for the company, and made the examination of John H. McMurdy for the insurance on his life, which he effected through me. During the examination I was present. In the form of application used at that time, most of the questions put to the applicant were for the examiner. Among the questions put by the examiner to the applicant was one to the effect whether he had ever had any serious illness or personal injury. In answer to this question, McMurdy began to describe a wound he had received in the leg while in the army. The doctor asked him some questions as to its character and location. After McMurdy’s reply the doctor remarked that it amounted to nothing; that it was not worth mentioning, and then explained to him that the intention of the question w'as to call out anything that would leave a permanent effect or would influence his general health afterwards. I remarked that what we wanted to know was anything that would influence the risk or chance for life, and that any temporary hurt could have no permanent effect. McMurdy said, ‘Well, answer “No” to that question then.’ ” The foregoing interrogatory and answer wrere read under objection to Dr. Orth, who was then asked, on behalf of plaintiff, if such conversation had occurred, to which the doctor replied, “ that it did, and that all ofthat conversation was in reference to the gunshot wound.” (Fourth assignment.) In the application for the policy, preceding the questions to be propounded in form B, was the following notice: “ Questions to be asked by the medical examiner, who will fully explain the questions and witness the answers and signature of the person examined.” Two physicians testified, on behalf of defendant, that they had attended McMurdy in 1871, when he had received a severe personal injury from a blow on the head, in a fight in Lafayette, Indiana; that a number of convulsions resulted therefrom; that he required two assistants to restrain him, and that he was kept under the influence of chloroform for forty-eight hours; the convulsions continued at intervals for about three days. ' The physicians never told McMurdy of the character of his attack or that he had had convulsions, but simply cautioned him to thereafter avoid becoming excited. It was also shown that the insured had been injured by a blow in the years 1871 and 1874, in Georgetown, Colorado, and that he again had convulsions. It was also in evidence that the explanation in regard to the gun-shot wound, was made after the insured had been examined, but before he had signed the application ; that Latson, the agent, was present and the conversation was in his presence. The testimony of the insured’s physician, during his last illness, was that he died of peritonitis, induced by exposure to the cold and wet while rowing on a lake. ' The defendant submitted the following points, to which are appended the answers of the court : 1. The policy in suit was issued in consideration of an application, referred to in the policy, and made a part of the contract, which warranted that all the statements therein contained were true. In determining whether the answers to the questions put to the insured are true or false, it is not necessary to inquire whether the questions and answers are material to the risk or otherwise. If any of the answers are untrue or evasive, the policy is void, and the verdict must be for the defendant. Ans. “ In view of Latson’s testimony, I decline this point,'as it takes his testimony away from you, and his testimony must go to you.” 2. If John II. McMurdy had fits or convulsions prior to the issue of the policy in suit, to wit, in March and April 1871, at Lafayette, Indiana, or in May and June 1871, at Georgetown, Colorado, or in the year 1874 at Georgetown, Colorado, and in the application he answered “ No,”, when asked if he ever had fits or convulsions, then his answer was untrue and evasive, and the verdict must be for the defendant. Ans. “ This is so, unless you find that such answer was responsive to the explanation given by Latson touching the questions propounded in the examination. If you find that such answer was true, in view of Latson’s explanations of what was comprehended in the printed questions, it will not prevent a verdict for the plaintiff.” Three other points of like tenor with the last were presented, to which the court answered : “ Declined in view of Latson’s testi- mony. In other words, for me to answer these points affirmatively would exclude Latson’s testimony, and take it entirely away from you, and that I have no right to do. Whether the answers were true or false must be determined by you in view of Latson’s testimony and all the testimony before you. If you find they were true answers, then the verdict ought to be for the plaintiff. If you find they were untrue answers, then the verdict ought to be for the defendant. In the general charge the court, inter alia, said:— “ I say to you, that justice requires that McMurdy, or his widow, who comes here as his legal representative, as the lawful claimant for this money, in view of the terms of the policy, should not receive your verdict if you are satisfied Mr. McMurdy was guilty of fraud in procuring the policy. * * * “ [But, if the agent of this company deceived McMurdy by the explanation that he made, either during the propounding of those propositions, or by any statement that he made afterwards before they were delivered or sent on their voyage to the company, then the plaintiff is entitled to protection.”] “I have already said to you there is enough in this case to justify this company in requiring the fullest explanation to be made before they pay. If their agent has, by his explanations, qualified away their right, of that which would have protected them, he is the wrongdoer. [If he said to Mr. McMurdy, ‘If you have not been injured in such a way as to leave a permanent effect upon your health, we do not expect you to answer those questions categorically,’ and Mr. McMurdy, in good faith, acting upon that explanation, I say in good faith, for, if it was a shield to ease his conscience, that otherwise would have made him hesitate, that is a fraud; but if, in good faith, he answered these questions in view of the interpretation that was presented to him by the agent, then, there is no fraud; and, if such you find to be the case, you must read, in these interrogatories, the explanation made by the agent at the time, and then read his answer to the interrogatory in the light of such explanation.] “ If, then, the answer was false, under the warranty feature of the policy, it does not make any difference whether he knew it or not. The insurance company is entitled .to protection; for, when a man warrants an answer to be true, although he may not know of its falsity at the time, and he believes it to be true, he estops himself by this warranty. “ Where there is no warranty and a man states what he believes to be true, and it afterwards appears to be untrue, there being no fraud and no intention to defraud, he does not warrant it and is not estopped. “ You have heard the testimony of Latson, the general agent, and Dr. Orth’s testimony; and the doctor says that Latson witnessed the answers to the propositions. That shows that he was there; that a colloquy took place under what is called a review, and that certain answers were made. [If those answers went to all that had been said before, then all that was said before must be understood in view of those answers.] If it was the understanding of the parties that the explanation only had reference to the gun-shot wound, then it would be improper for you to carry the answer that was made beyond the single question, and it would have no effect whatever upon the other questions. “ [If the agent qualified the written questions and required the answer to come to these questions as qualified, then you must read in the questions themselves the explanation that was made at the time.]” Verdict for plaintiff for $11,610, and after judgment thereon, defendant took this writ, the errors assigned being those above noted, the answers to points and the portions of the charge in brackets. The answers of the insured, by the terms of the policy are warranties, and if they are untrue or evasive, or conceal the facts, the policy is void. We contend, therefore, that the contract excludes any such conversations or statements by the examiner or agent as are here alleged, and the company is not bound thereby, and that it was error to admit testimony as to whether the injuries which the insured had received, and the facts about which he did not disclose, had affected his subsequent health: Seybert v. Etna Ins. Co., 4 Luz. Leg. Reg. 219 ; Smith v. Ins. Co., 12 Harris 320; Cooper v. Ins. Co., 14 Wright 299 ; Ryan v. World Mutual Ins. Co., 41 Conn. 168; Hartman v. Ins. Co., 9 Harris 466; Jeffries v. Life Ins. Co., 22 Wallace 47 ; Etna Ins. Co. v. France, 91 U. S. 510. It having been shown that the insured had fits and convulsions and serious illness and personal injuries prior to the application, it was attempted to evade the breach of warranty contained in the concealment of these facts by showing a conversation in regard to a gun-shot wound. The answers of the insured were true in response to the questions of the company, as propounded and explained by its agent the medical examiner. The question then is, admitting that the insured had had fits and serious personal injuries, were his answers to the questions asking these facts untrue, in view of the explanation authorized by the printed contract to be made to him (and admittedly made to him, the fact of the explanation being testified to by one of the defendants’ witnesses, and corroborated by its general manager for che state of Indiana, being uncontradicted, and being found to be true by the verdict of the jury) ? There were two issues tried in the case, whether the insured had convulsions, and if so, was his general health thereby affected at the time of the application ? There was no demand by the defendant, that the evidence should be limited to one particular issue The verdict of the jury was a general verdict upon both counts of the declaration, so that it is immaterial whether the second issue was maintainable or not under the findings on the facts. Where the measure of damages is not apparent on the record, and lies wholly within the discretion of the jury, if a general verdict is given, which is equivalent to a verdict on each count, and one of the counts be bad, a new trial to assess the damages must be granted, because, although the jury has determined the defendant’s liability to the plaintiff, non constat but that they have assessed the damages on one of the bad counts. But this is so only where the measure of damages is variable; as, for example, where the action is for negligence : if one of the counts is bad and there is nothing on the record to show the amount assessed on the good counts, a new trial to assess damages must be ordered. But the rule is exactly the opposite where the elements exist by which the amount of the verdict on the good counts is determinable. So, here, the verdict upon the first count, supposing the second totally irrelevant, was for the plaintiff, and the damages are fixed, being the amount of the policy, with interest thereon till the trial.
89 Pa. 374Delaware & Hudson Canal Co. v. Carroll (1879)
1. Under the provisions of the Mine Ventilation Act of March 3d 1870, “mining-bosses” and “miners”,are fellow servants, and where the death of the latter is caused by the negligence of the former, the owner of the mine is not responsible therefor. 2. The fact-that said “mining-bosses” are appointed under an Act of Assembly, which prescribes their duties, does not change this relation of “ fellow servant” where it is shown the requirements of the act in regard to their selection have been complied with, and it does not appear they were incompetent or that there was negligence on the part of the mine owner, in their employment. 3. The action to recover damages for the death of the miner was brought by his widow, within a year, as required by the Act of Assembly. After the expiration of the year it was amended so as to bring in the children as plaintiffs, but no new cause of action was introduced. Held, that this amendment was properly allowed. 4. Mullan v. Steamship Co., 28 P. F. Smith 25, distinguished.
89 Pa. 383Black v. Black (1879)
Error to the Court of Common Pleas of Bradford county: Of January Term 1878, No. 27. Ejectment by John H. Black against Niram A. Black, for a farm, consisting of one hundred acres of land, in Bradford county. The defendant was the youngest son of the plaintiff, and when suit was brought was about forty years of age. On his part, it was alleged that about the time he became of age he entered into' a parol agreement with his father, that he would remain at home and aid in working the farm and render his parents such assistance as their circumstances might require, and that if he did so, then the farm should belong to him after his father’s death absolutely, and that defendant should have a writing to that effect. That in pursuance of this arrangement a will was made in 1857, wherein the farm was devised to defendant and the personal property divided between the plaintiff -s wife and his daughter, Nancy. It appeared that the defendant continued to live upon and work the farm up to 1871, with the exception of two years when he was in the army. In the meantime, Nancy was married, and in 1871 the plaintiff was induced to prepare another paper, in which all the personal property was bequeathed to defendant. This paper was in all respects a will and was formally executed as. such on the 13th of August 1871. Its fifth item was in these words : 5th. I give and bequeath to my son, Niram A. Black, all the rest and residue of my estate, real and personal, after paying therefrom all my funeral expenses, and those of my said wife, and erecting suitable stones with appropriate inscriptions, to mark our final resting-place. It being understood that he, the said Niram, is to remain on the farm and assist in working it, and render his parents such assistance as their circumstances may require. After the execution of this paper, it appeared the defendant exercised rights of ownership over the property and attempted to assume entire control of the farm, to the exclusion of his father, among other acts, leasing the farm to one Sweatland, without his father’s consent, the one-half of the proceeds to be paid to defendant as landlord. An arrangement was made, however, by which the landlord’s share was paid to the father. While Sweat-land was in possession, the plaintiff informed defendant that he did not wish him to return to the place, but before Sweatland moved out the defendant took control and assumed the management of the farm, against the wishes of his father, and refused to surrender possession. On the 31st of December 1873, the plaintiff served a written notice on defendant to surrender possession on the 1st of Api’il following, and, upon a failure to comply therewith, this ejectment was brought on April 2d 1874. ' At the trial the plaintiff gave evidence of his title to the land and possession in defendant, and rested. The defendant set up as a defence, that his parol arrangement with his father and the will devising the property to him, gave him an interest in the property, and he had a right to do all he had done. The following were among the points presented by plaintiff, with the answers of the court, Morrow, P. J. 1. That if the jury believe that N. A. Black made the agreement with his father, as per writing dated March 27th 1872, to pay him part of the proceeds of said farm, he became the tenant of J. H. Black, and that the tenancy continued till it was terminated by notice to quit from J. H. Black, the 1st of April 1874, and the plaintiff is entitled to recover. Ans. “ This point is refused. The paper referred to is to be construed in connection with the lease with Sweatland, and the circumstances under which the lease was made.” 2. That if the jury believe from all the evidence that John H. Black agreed with his son Niram Black, under the will of the former, that he, the said Niram, should remain on the farm and assist in working it, and render his parents such assistance as their circumstances required during their lives, that such agreement gave him no right to, or control over the farm; and his staying on the farm and working with his father and improving it, could not give him such an interest as he could hold possession against his father’s consent. Ans. “Affirmed. In affirming it, however, we do not say that the defendant had not the right under the arrangement to remain on the farm with his father. The defendant cannot hold adversely to his father, but must remain in possession with him under the facts assumed in this point.” The following points were presented by defendant to which are appended the answers of the court. 1. That, the papers of 1857 and of August 13th 1871, signed by J. II. Black, were (as far as the farm in controversy is concerned) irrevocable and entitle the defendant to remain on the farm, and the plaintiff cannot recover if the jury believe that since 1871 he has been on the farm assisting his parents as their circumstances required, or away from the farm by plaintiff’s consent. Ans. “ Affirmed; that is, if the jury find the agreement between the plaintiff and defendant was such as set up by the defendant and he performed the contract on his part.” 2. That there being no evidence of ouster by the defendant of the plaintiff, nor proof of a denial of plaintiff’s right to remain in possession of the farm, the plaintiff cannot recover. Ans. “Affirmed.” Verdict for defendant, and after judgment thereon, plaintiff took this writ, inter alia, assigning for error, the answers to the above points. The will, of itself, would not give any right in the land to the defendant during the life of his father; but it is contended, on the part of the defendant, that this will is connected with a parol contract between the defendant and his father that converts the will into a contract and renders it irrevocable. If it is a contract, then the whole arrangement is by parol, and is without consideration and void, and it is clear that no consideration could be added to it after-wards, by a concurrent possession of the land with the father. A nude promise can not be enforced either in equity or at law, and this is emphatically true in regard to a promise to give by will : McClure v. McClure, 1 Barr 874. The will itself was such an instrument as was revocable, and the plaintiff could have revoked it the next day: Bash v. Bash, 9 Barr 260. The arrangement alleged by defendant was that he should stay and assist his father. The will says, that it is understood that he should do so. Does this add to or take anything away from the will, or create any personal interest in the defendant in the land in question. The first point of plaintiff should have been affirmed; at least, it should have been submitted to the jury to say under all the evidence whether or not the relation of landlord and tenant did not exist, and if they found any existing to find for the plaintiff. The agreement was to pay a part of the proceeds of the farm for its use, and the farm was occupied by Sweatland by an arrangement made with defendant : Sterretti).Wright, 8 Casey 259; Clark v. Smith, 1 Id. 137. The second point also should have been affirmed. The defendant had been notified by his father, that he did not want his assistance, and had served on him notice to leave the premises; he had at the time the exclusive possession of a part of the house in which he lived. The point assumed that the defendant was holding against the consent of his father. The will in itself was a complete instrument; there was nothing that required parol testimony. It did not depend on whether or not the defendant performed or did not perform. If the will was revocable at the time it was made, it continued so. If a will is to be construed into a contract by parol testimony of arrangements made between the testator and his children during the life of the testator, it will be a fruitful source of litigation. The defendant sets up no present title to the farm. He has never claimed any right to exclusive possession. What he insists upon is simply that he shall not be turned out of doors and away from the farm, when it was agreed between him and his father he should remain during the lifetime of his parents. Defendant under the parol agreement and the instrument of writing has complied in every respect with what he promised to do. It is now urged this contract may be repudiated, first, because the agreement was by parol. We answer that the contract was in writing, and signed by the party to be charged. Second, It is said the instrument of writing is a will, and cannot take effect until after the death of plaintiff, and could be revoked at any time. We answer, the paper is in form a will, but the stipulation in the fifth item shows that it was intended to take effect in the lifetime of the plaintiff. The distinguishing feature of a will is, that it shall not take effect during the lifetime of the maker. It matters not as to the form, whether the instrument be in that usually adopted for a devise, or of a deed, provided it clearly appears that a will and no more was intended. And the test seems to be this, whether the instrument is to take effect wholly after the death of the maker, or whether it is to go into operation as to some parts, at least in his lifetime. In the former case the instrument is considered a will; in the latter, a deed: Bouv. Inst., sec. 2132, citing Allison v. Allison, 4 Hawks. (N. C.) 141, 171; Cumming v. Cumming, 3 Ga. 460, 484; Jackson v. Culpepper, Id. 569, 573, 574; Att’y Gen. v. Jones, 3 Price. Ex., ch. 368; Thompson v. Browne, 3 Mylne & K., ch. 32. In Johnston v. McCue, 10 Casey 180, the instrument was in every respect as to form and language a will. There was a contemporaneous agreement in writing, whereby the devisees promised to pay annually to the testator a certain sum of money. The principal instrument was, therefore, held to be a contract in consideration of the payments promised, that the lands should belong to the devisees at death of the testator, on condition of performance by them during his life of their agreements, and not revocable.
89 Pa. 389Borough of Pittston v. Hart (1879)
1. It is tlie duty of a municipality to keep the approaches to dangerous places on its streets so guarded as to protect travellers. It must keep its streets in such order that even “ skittish” horses may be employed without danger. 2. At a point on one of the principal streets of a town of about ten thousand inhabitants, a railroad runs parallel with the street, but about twelve feet below its level. There is no railing at the side of the street. A team of horses became frightened at a passing engine, ran over this unguarded side, and the driver was seriously injured. Held, that the direct cause of the injury, was the want of a proper barrier at the side of the street, and that under the circumstances, the question of the negligence of the town authorities was properly left to the jury.
89 Pa. 392Montz v. Morris (1879)
Error to the Court of Common Pleas of Luzerne county: Of January Term 1879, No. 142. This was an action brought by Thomas Morris, before an aider-man, against J. A. Montz, for the price of a cow sold to defendant. The alderman gave judgment for the plaintiff and defendant appealed to the Common Pleas. The pleas were non-assumpsit, payment, &c., which were amended during the trial, by adding “ payment with notice of defalcation, set-off and payment with leave.” At the trial, before Stanton, J., it appeared that Montz was a member of the firm of Landmesser & Co. To this firm Morris owed about one hundred dollars. When Montz bought the cow, he credited Morris with the price, fifty-five dollars, on the firm books. Without paying anything on his account, Morris demanded the money for the cow, claiming it was sold to Montz and not to the firm. Defendant offered to show that, after giving credit to the plaintiff for all payments, including that' of the cow, there remained a balance due to Landmesser & Co., from the plaintiff, of sixty-nine dollars. Plaintiff objected, upon the ground that any indebtedness of Morris to the firm could not avail the defendant in this case, he having no assignment of the claim, and that the firm debt could not be set-off against an individual debt; and further, that the offer was not made to prove indebtedness prior to the bringing of this suit. The court sustained the objection, on the ground that there was no assignment of the claim. (First assignment of error.) The defendant proposed to ask a witness : “ You have already stated that you are one of the partners ; state whether or not you assent to the use of the book-account of the firm by Mr. Montz as an off-set in this case ?” The court refused to allow the question, on the ground that it was leading. (Second assignment.) The defendant then offered the written assent of the members of the firm to the use of the account of said firm by Montz as a set-off. The court rejected this evidence for the reason that evidence of set-off, under the pleadings, was not then admissible. In the general charge, the court, inter alia, said: “You have the right, we say, to find, from the manner in which defence was made, how the defendant himself regards this case. Because it is a light to you in reaching a conclusion, to know whether the defendant, in the face of his own testimony; in the face of the testimony of the plaintiff, believes that he was acting for the firm or for himself. [You will notice that in this case there is more than the mere issue that he did not buy for himself. The defence filed yesterday, with our consent, a plea of set-off. That, as we construe it (for it is proper for us to give construction to the pleading in this ease) is in the nature of admission that this contract is between this plaintiff and this defendant; for otherwise it would be absurd for the defendant to claim the right to a set-off as against the plaintiff’s claim.”] A partner, when sued individually, may set-off a firm account: Wrenshall v. Cook, 7 Watts 464 ; Tustin v. Cameron, 5 Wharton 379 ; Craig v. Henderson, 2 Barr 261; Burke v. Maxwell’s Admrs., 31 P. F. Smith 139. No assignment of claim has ever been held necessary. All that was needed was the assent of the firm. The assent of the other members of the firm may be given to the-use of its accounts as set-off, by one of its members, in his individual suit, after suit brought, and upon the trial of the case: Smith & Co. v. Myler & Aber, 10 Harris 40 ; Hart v. Porter, 5 S. & R. 200; Silberburg v. Pincus, 6 Phila. 533 ; Todd v. Lorah, 25 P. E. Smith 155. The evidence offered under the first assignment of error was inadmissible under the plea of “ non-assumpsit and payment,” and for the further reason that in the offer made defendant did not attempt to show that he either had the assent of his copartners to use their claim as a set-off against his individual liability in this case, or that he held an assignment of their claim for that purpose; or that the debt alleged to be due the partnership, was contracted previous to the "commencement of this suit. After plaintiff rested it was too late for defendant to amend by adding the plea of set-off: 1 Tr.. & Haley Pr. 473; Glazer v. Lowrie, 8 S. & R. 498.
89 Pa. 395School District of Dennison Township v. Padden (1879)
1. In the selection of school teachers, the provisions of the Act of April 11th 1862, must be strictly complied with. The act requires that teachers shall be selected by the school board. Held, that a contract between the president and secretary of the board, and a teacher, without the concurrence of the board was invalid and could not be enforced. 2. It seems that no contract for the employment of teachers should extend beyond the current year.
89 Pa. 398Burk, Thomas & Co's. Appeal (1879)
Appeal from the Court of Common Pleas of Bradford county: Of January Term 1879, No. 4. Appeal of Burk, Thomas & Co. from a decree of the court confirming the report of the auditor, appointed to distribute the proceeds of the sheriff’s sale of the real estate of J. W. Vandyke, in a judgment in favor of B. W. Lane. The facts are sufficiently stated in the opinion of this court. levy on personal property is not a satisfaction of the judgment pro tanto: Cummins’s Appeal, 9 W. & S. 73; Morrison v. Hoffman, 1 Barr 13; Taylor’s Appeal, Id. 390; Cathcart's Appeal, 1 Harris 416; Campbell’s Appeal, 8 Casey 88; McLaughlin v. McLaughlin, 4 Norris 317. After a levy on personal property, the execution-creditor, who has caused the levy, may withdraw the execution and discharge the levy without discharging the lien of his judgment on the land: Cathcart’s Appeal, supra; McLaughlin v. McLaughlin, supra. Applying these principles to the case, and James Vandyke could have withdrawn his execution and. discharged the levy, without postponing his lien upon the debtor’s real estate. Burk, Thomas & Co. can do all that Vandyke could have done. If appellants had sold the personal property on both their writs of fi. fa., it cannot be pretended that even with the consent of J. W. Vandyke, the defendant, that they could have applied the proceeds on the writ issued on their posterior judgment, after the -writ had issued on their prior judgment, so as to continue the latter judgment in full a lien on land, to the prejudice of intervening liens: Davison’s Assignees v. Patton, 13 S. & B. 345. . . . ' . . . If they had hot sold the property on either writ at sheriff’s sale, but released it from both levies, and bought it at private sale in satisfaction of their posterior judgment, to the prejudice of intervening liens, this would operate as postponement to such liens pro tanto: Hunt v. Breading, 12 S. & R. 37; Wood v. Vanarsdale, 3 Rawle 406. If the appellants could not, by either of the above methods, obtain satisfaction of their posterior judgment, and an advantage over the intermediate lien-creditors, can they without the consent of the defendant, by shifting the levy from one execution to another? The rule stated by Justice Bell in Cathcart’s Appeal, 1 Harris 422, furnishes the answer: “ It is also true that one who has levied on the chattels of his debtor, will not afterwards be suffered to divert the levy to the payment of a posterior judgment, in detriment of an intermediate lien.”' The same rule is found in Campbell’s Appeal, 8 Casey 92 ; and is illustrated by the reasoning to be found in Hunt v. Breading, Dean v. Patton, and Wood v. Vanarsdale, supra.
89 Pa. 402Mason's Appeal (1879)
3. The personal property of a decedent is the primary fund for the payment of all his debts, and a judgmentwhich was a lien on his real estate in his lifetime, is entitled' to share pro rata with the unsecured debts in its distribution. ' 2. The estate of a decedent consisted of two funds, one arising from the personalty, and the other from the sale of the real estate. There were both lien and unsecured creditors. Held, that both classes were entitled to share pro rata in the distribution of the personalty fund, and after its distribution, the real estate fund should be awarded to the lien creditors in the order of their priority. 3. In such distribution there is no distinction between solvent and insolvent estates; the order of paying is the same in either case. 4. Kamsay’s Appeal, 4 Watts 71, reviewed.
89 Pa. 407Lamb's Appeal (1879)
1. The Act of April 4th 1877, authorizing an appeal from a refusal to open a judgment entered by warrant of attorney, or on a note on which judgment is confessed, do;s not apply to a judgment which has been revived by agreement of the parties. The act was intended to apply to a judgment remaining unchanged by subsequent judicial proceedings, and where the defendant never had his day in court, not to a judgment ratified and confirmed by revival, with a full knowledge of the .original consideration. 2. A judgment of revival entered by agreement of the parties in an amicable scire facias, is not a judgment entered by virtue of a warrant of attorney and from a refusal to open it, no appeal lies. 3. Walter v. Breisch, 5 Norris 457, distinguished.
89 Pa. 411Early & Lane's Appeal (1879)
]. Where the stock of a'eorporation is assigned to the corporation itself*as collateral security for a loan, the title -of the assignor to the stock is so far divested that it cannot be sold under an execution against-him. 2. Where a shareholder in a building association has assigned his stock to such association as security for a loan, and the loan is also secured by a judgment, upon a sale of his real estate by the sheriff, he may elect to have the value of the stock deducted from the amount of the judgment before the latter is permitted to share in the proceeds of the sale. 3. Where a shareholder has so elected, an attachment of the stock thereafter binds only the interest which remains after the stock has been applied to the payment of the judgment.
89 Pa. 419Walsh v. Commonwealth ex rel. Evans (1879)
1. Sect. 8, art. 4, of the constitution, provides that the governor “may fill any vacancy that may happen * * * in any judicial or in any other elective office, which he is or may be authorized to fill; * * * but in any such case of vacancy in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election.” Held, that when a new county is erected, a “ vacancy” in the county offices “happens” withir the meaning of this constitutional provision. 2. The new county was erected August 21st 1878. The next general election was on November 5th 1878. Held, that no election for new county officers could be held until the second general election succeeding the erection of the county, and that the appointees of the governor were entitled to hold over until the commencement of the term of those chosen at said general election.
89 Pa. 428Workingmen's Building & Loan Ass'n v. Coleman (1879)
Error to the Court of Common Pleas of Luzerne county: Of January Term 1879, No. 198. On February 23d 1872, the Workingmen’s Building and Loan Association of Ilyde Park, Pennsylvania, entered a judgment against Owen Coleman, on a note given by him to said association. The note was for $1000, and contained a confession of judgment, and •was given'for a loan made to him by the association in accordance with its regulations. On January 5th 1877, the defendant in the judgment obtained a rule to show cause why said judgment should not be opened, and defendant let into a defence, which rule was made absolute and an issue framed. At the trial before Handley, J., the plaintiffs claimed that they were entitled to the special rights and privileges conferred by the Act of April 12th 1859, known as the “ Building Association Act.” The defendant alleged that the charter of the association was defective, inasmuch as in the application made for said charter there was not the requisite number of signers, prescribed by said act, and it could not therefore claim its privileges, and contended for this reason, that defendant could only be compelled to pay plaintiff the money actually loaned with interest. It was agreed by the parties that if the plaintiffs were incorporated under the Act of 1859, and possessed the rights and franchises conferred by said act, the plaintiffs were entitled to recover $836 ; but if not, to recover only $207.19. The plaintiffs submitted the following point, which the court, Handley, J., affirmed: “ That the validity of the charter of incorporation cannot be inquired into in this case; cannot be assailed collaterally.” The • defendant submitted the following point, to which is appended the answer of the court. If the association was incorporated in 1869, by the Court of Common Pleas, upon a petition signed by a less number of persons than required by the Act of 1859, it is not entitled to recover of the defendant more that the sum actually loaned, with legal interest thereon. Ans. “ This point we affirm. There is nothing in the charter of the plaintiffs to show that this association was incorporated under any act specially named. No authority .is given to the Court of Common Pleas to incorporate any number of persons less than ten for the purposes claimed by these plaintiffs. Yet the plaintiffs contend that they were incorporated under the Act of 1859, and hence are entitled to all of its privileges and benefits. But it was recently held by the Supreme Court of Pennsylvania, that unless the number of persons called for by the Act of 1859 shall have signed the petition, they are not incorporated as the law provides.” In the general charge the court, inter alia, said : “ In this case, the number of persons who signed the petition, as we have said, before to you, falls short just one, and that, in the eye of the law, is as fatal as if the charter was signed only by one, and fell short nine. Whilst the plaintiffs may be a corporation de facto, yet they are not incorporated as the Act of 1859 provides. We therefore instruct, under the evidence and the law, that your verdict will be •in favor of the plaintiffs for the sum of $207.19.” • The plaintiffs took this writ and alleged that the court erred in affirming the defendant’s point, in the portion of the charge noted, and in the foregoing instruction. Rhoads v. Hoernerstown Building Association, 1 Norris 180, simply decided that the fact of there being a less number of signers to the petition for incorporation than ten, was evidence that they did not seek for a charter under the Act of 1859. There was also in the charter in that case various powers which were not conferred by the Act of 1859, which showed that it was not granted under that act. In the plaintiff association, on the contrary, the various sections of the charter show the closest adherence to the Act of 1859, although there is no express reference to that act. Several sections quote its provisions word for word, and it is believed that there is not the slightest inconsistency in any of its provisions. We contend, however, that all defects in the granting of the present charter were cured by the Act of 11th May 1874, Pamph. L. 133; Brightly Purd., p. 1851, pi. 60. That act was passed to cover “technical defects,” whereby “innocent persons might be injured.” It is certainly sufficient in itself to meet the case of a man who had accepted the charter as a contract, had drawn out money from the association, under its provisions, and had shared the advantages and benefits of its membership for years. Can he now come in and claim immunity under the proviso of the statute reserving any “previously acquired rights.” We claim that the defendant in error has taken himself out from the benefit of this proviso. That this association was not incorporated under the Act of 1859, is clearly shown by the decision in Rhoads v. Hoernerstown Building Association, supra. The Act of 1874 is not appliable to the present case.
89 Pa. 432Pauli v. Commonwealth (1879)
1. An interlineation of certain words in a lease, so as to make it conform to the understanding of the parties at the time of its execution, is not a fraudulent alteration or forgery. 2. General evidence that a defendant is a had man is not admissible upon a trial for forgery, and if inadvertently admitted upon the trial, it was error to submit it to the jury as an element for their consideration in disposing of the question of character. 3. It was error to charge the jury, that to acquit a defendant, they must find a theory that will lead to a verdict of not guilty conclusively. 4. In favor of the liberty of the citizen, and in a proper case the court should declare that the evidence is insufficient to convict.
89 Pa. 436Rhoads v. Reed (1879)
Error to the Court of Common Pleas of Schuylkill county: Of January Term 1879, No. 159. Scire facias sur mortgage issued by Henry Reed against Isaac Rhoads. The prsecipe for the writ of scire facias was filed on the 9th of May 1877, wherein reference was made to the record of the mortgage by book and page. The mortgage, which was dated August 15th 1868, set forth that said Rhoads “ by a certain obligation or writing obligatory, under his hand and seal duly executed] bearing even date herewith, stands bound unto the said Ilenry Reed in the sum of $6000, conditioned for the payment of the just sum of $3000 until the 1st day of April 1869, with interest at 3 per cent, from the above date, until due and after due, if not paid, to bear 6 per cent, interest for the same without any fraud or further delay, as in and by the said bond recited, obligation and condition thereof, relation being thereunto had, may more fully and at large appear.” On. July 2d 1877, judgment was entered against defendant for want of an affidavit of defence, and the damages were assessed at $3405.50. On the 12th November 1877, a writ of levari facias was issued to December term 1877. On the 19th November 1877, after the property had been advertised for sale, the defendant filed an affidavit that the writ of scire facias, issued in above case, set forth no time when the principal or interest on the mortgage became due and payable, and on the same day the court granted a “rule on plaintiff to show cause why the judgment in above case should not be stricken off or opened for matters appearing on the record.” This rule was made returnable in one week. The court made no order to stay proceedings upon the writ of levari facias, and the property was sold on the 1st day of December 1877, to the plaintiff, and on the 17th December 1877, a rule was granted to show cause why the acknowledgment of the deed by the sheriff should not be disallowed and the sheriff’s sale set aside for the reason that on 19th November 1877, a rule had been granted at the instance of defendant to show cause why the judgment should not be set aside, which rule was pending and undetermined when the sheriff’s sale of the real estate of defendant took place. On January 5th 1878, the court discharged both rules and the sheriff acknowledged his deed to plaintiff. Defendant took this writ, assigning for error the entry of judgment for plaintiff and discharging the rules. The scire facias showed on its face no immediate cause of action. It omitted to set forth when the alleged debt fell due, arising from the recited conditional obligation. No inference from the date can be drawn as to the time of payment. An averment that one was indebted is not a ground to infer that the debt was then payable. It cannot be intended that a debt presently due was meant from the allegation that it was unpaid. The time of payment is part of a contract. The instrument must be stated in terms or according to its legal effect. A scire facias answers both the purposes of a writ and declaration, and it must show on its face an immediate cause of action to warrant judgment thereon by default: Swift et ux. v. Allegheny Valley Building Association, Í Norris 142. In the present case, the obligation is conditioned for the payment of $3000, but no inference from the date of the indenture can be drawn as to time of payment. It cannot fairly be intended that a debt presently due was meant. It is submitted that justice requires that when a plaintiff resorts to a judgment by default, he should not violate an essential rule of pleading, by omitting to state when the obligation falls due, and that, if he does omit this necessary statement, he is as much in default as the defendant, and therefore is not entitled to judgment. In Kennedy v. Ross, 1 Casey 256, the court below, though no copy of the bond or mortgage had been filed, and the prsecipé simply referred to the mortgage, upon a motion for judgment for want of an affidavit of defence, resorted to the accompanying bond for the purpose of construing the recitals in scire facias and mortgage, which left it very obscure as to whether anything was due at the time the writ was issued. Notwithstanding this, the court below granted judgment for want of an affidavit of defence, and the Supreme Court affirmed the same. In the present case the praecipe refers to the place of record of the mortgage; there is no ambiguity in the recitals of the mortgage, and it plainly appears the principal debt was due and payable eight years before suit brought. The scire facias averred that the debt “with interest thereof, as yet remains unpaid.” The Act of 14th April 1851, sect. 14, Pamph. L. 625,' authorizing the entry of judgment for want of an affidavit of defence; in actions, inter alia, of scire facias on mortgages, did not require a copy of the mortgage to be filed. In McConeghy v. Kirk, 18 P. F. Smith 201, it was held that where a copy of a note was filed in an action against an endorser, the presumption was that all necessary steps were taken to fix liability, and it was not essential to aver presentment, demand, &c. The defendant must so aver in his affidavit of defence, if such steps have not been taken.
89 Pa. 438Pottsville Mutual Fire Insurance v. Horan (1879)
1. By the terms of a fire insurance policy, the assured stipulated that the representations made by him in the application were a warranty on his part that said application contained a true exposition of the consideration, situation, value and risk of the property, and further, if by any means the risk should be increased, and the assured neglect to notify the company, that the policy should be void. Held, that the neglect to mention the existence of a carpenter shop on the premises at the time of the application, and the erection after the insurance of a new building by the insured on an adjoining lot, without notice to the company, avoided the policy. 2. To set off the claim that the risk had been increased by the erection of the new building, it was contended that the risk had been diminished by the removal of the carpenter shop and its erection into a dwelling-house, and the court left it to the jury to determine the question. Held, that this was error.
89 Pa. 446Continental National Bank v. Draper (1879)
Under the Act of March 16th 1869, entitled “ An act relative to fraudulent debtors,” real estate cannot be attached.
89 Pa. 450Wynkoop v. Cooch (1879)
1. The Act of May 13th 1871, entitled “An act to obtain possession of real estate by purchasers at coroners’, sheriffs’ and Orphans’ Court sales within the county of Schuylkill,” is not in derogation of the right of trial by jury, and is constitutional. 2. In a case under the provisions of this act the possessor being an unjust one, he has no common-law right to notice to quit; the legislature may therefore constitutionally enact that notice may be provided in any mode, and before any tribunal. 3. An Act of Assembly will not be declared void because some portions thereof are unconstitutional. It may well be that one or more provisions of a statute are unconstitutional and the other provisions not so.
89 Pa. 453Gay v. Waltman (1879)
Error to the Court of Common Pleas of Wyoming county: Of January Term 1879, No. 200. Debt, on an award of arbitrators, by A. Waltman against James Gay and Calvin Gay, partners, doing business as James & Calvin Gay. Calvin Gay filed an affidavit of defence, wherein he averred that as a partner of James Gay he had never agreed to make a submission to arbitrators, and that, as such partner, he was not indebted to plaintiff. He subsequently pleaded that he was not a partner in this case with James Gay, and pleaded generally nil debet, payment with leave, &c., and also, with James Gay, put in the plea of “ no award.” At the trial the plaintiff was proceeding to give evidence of the partnership, when the counsel for the defendants asked leave to withdraw the plea of no partnership, saying, “ Our affidavit does not deny the partnership, but only the partnership as to this transaction.” The court permitted the plea to be withdrawn, remarking “ Withdrawing that plea we regard as withdrawing the matter of partnership entirely from the case, and leaving it (as under the rules of court) as though there was no affidavit to the contrary;” and added, in the hearing of counsel of defendant, “ We now understand that the burden of proving the partnership is taken from you (the plaintiff) and that you have only now to prove the submission and award.” The court, in pursuance of this declaration, subsequently excluded offers of testimony by the plaintiff, tending to prove the partnership. No exceptions to these rulings were taken by defendants. The plaintiff testified that he had leased a half interest in a sawmill to the defendants ; that a dispute arose, and, being unable to settle what plaintiff' was to receive for the use of the mill, James Gay and witness agreed to refer the matter to three arbitrators; that when the arbitrators met the two Gays and plaintiff appeared before them; that it was then agreed that the only question that should be submitted to the arbitrators was, what plaintiff should receive from James and Calvin Gay, as partners, for the use of the mill; that the arbitrators heard witness’s statement as to the use of the mill, and that of one of the Gays as to the use by the Gays, and announced the award verbally, so far as witness knew ; that he did not see any writing present; that they awarded witness for the use of the mill $1040 and some cents. The defendants admitted that there had been a submission and award, but testified that the submission was as to matters in dispute between plaintiff and James Gay, and was made by the latter for himself alone; that Calvin Gay had no interest in the matters in dispute, did not authorize the submission, and was not present at the meeting of the arbitrators. The testimony of the arbitrators was not positive either as to the subject-matter of the submission, or whether the award was. against one or both Gays, or whether both were present at the meeting. The award had been made several years before the trial and no memorandum thereof seemed to have been preserved. The defendants submitted the following points, all of which the court refused: . 1. There is no evidence in this case from which you can reasonably conclude that the defendants submitted all matters then in controversy between them and the plaintiff to the arbitration of three persons, mutually chosen and agreed upon by the said plaintiff and defendants, nor that the arbitrators chosen made an award in favor of the plaintiff and against the defendants; and that your verdict should be for the defendants. 2. One partner cannot bind another by his submission to arbitration even of matters arising out of the business of the firm. 3. The pleadings do not admit the partnership. In the general charge the court, Ingham, P. J., inter alia, said: “As the case stands the existence of the partnership in relation to the subject-matter of the action must be regarged as admitted. * * * ££ These arbitraments may be either in'writing, and the award in writing, or they may be simply by parol agreement, and the award. may be by parol. Such must, have been the submission and award, if any, in this case, the whole matter being by parol; and you therefore .depend entirely upon the evidence of the witnesses in making up your verdict. That is; however, sufficient, if the evidence is sufficiently clear to enable you to satisfy your minds that there was submission, what was submitted, and what was the award of the arbitrators.” Verdict for plaintiff. Defendant took this writ and assigned for error the answers to the above points, and the portion of the charge noted. ■ “ • The submission should be clearly prove’d; who were the parties to it; what was the award; in whose favor and against whom. Where a case is submitted to a jury upon clearly insufficient evidence, such as no court ought to sustain a verdict upon, it should be reversed: Cauffman et al. v. Long, 1 Norris 72. Ooe partner cannot bind his co-partner by a submission to arbitration. There must be evidence, written or otherwise, of an authority conferred: Collyer on Partnership, sect. 439, notes 2 and 3; 3 Kent’s Com., sect. 49; Story on Partnership, sect. 114; American Leading Oases, 5th ed.,“p. 452,'notes 5 and 6. In the case of Taylor et al. v. Coryell et al., 12 S. & K..243, it is decided “ that one partner may fairly enter into an agreement to refer, by writing, not' under seal, any partnership matter, and this would bind the whole firm.” This case only extends to an agreement in writing, and should not be extended to sustain a verbal award on a parol submission. In the case of Harper v. Fox, 7 W. & S. 143, we have the dictum of C. J. Gibson, as follows: “ A partner has power to dispose of the joint effects by his separate act; and that he may not bind the firm by submission to arbitration, or confession of judgment, is because it would bind the persons and separate estates of the members and thus transcend the limits of partnership authority.” The remarks of counsel for plaintiff and their offer to prove the partnership, show clearly that they did not consider that the defendant had admitted the partnership or that it was admitted by the pleadings. Under the ruling in Taylor et al. v. Coryell, supra-, one partner may bind his co-partner, by an agreement not under seal, to refer any partnership matter, and this decision extends to all agreements not under seal. ' With what reason can it be maintained that one partner may pay a firm debt or agree to the amount thereof and that he cannot refer to others the question of amount before he shall pay. The defendants were warned of the effect of their withdrawal of their plea of no partnership and they took no exception to the ruling of the court. There is no rule of law which requires a submission to be in writing: 2 Tr. & H. Pract. 752, 3d ed. by Wharton; McManus v. McCulloch, 6 Watts 357 ; Barnum v. Bachman, 5 Luz. Leg. Reg. 145; Hillard’s American Law, vol. 2, p. 237, and cases cited; Titus v. Scantling, 4 Blackf. 89; Bouv. Inst., vol. 3, p. 47.
89 Pa. 458Pennsylvania & New York Canal & Railroad v. Lacey (1879)
Error to the Court of Common Pleas of Wyoming county: Of January Term 1878, No. 245. Case by George S. Lacey and Henry R. Lacey, partners, doing business as G. S. & H. R. Lacey, against the Pennsylvania and New York Canal and Railroad Company, for the burning of the storehouse of the plaintiffs, which they alleged resulted from the negligent management of one of the locomotives of defendant. It appeared that the building of plaintiff's, which was about ninety feet from the railroad, was used for the storage of coal and straw. Shortly before the discovery of the fire, a locomotive had passed, which was observed by several witnesses to be throwing out unusually large cinders. Very soon thereafter, some straw on the land of plaintiffs was discovered to be on fire, and before it could be extinguished, the fire, aided by a strong wind, reached the storehouse, and it was destroyed. One witness testified: “ The wind -blew very strong; very soon I saw the fire burning. When I 'first -saw it, the Maze was not bigger than a bushel basket. I took some hands right off and hastened to put it out. I thought I could easily enough, but the wind carried it right into the front of. the she’d'; there was a good deal of straw scattered around.” The fire started in the straw, between fifteen and twenty feet from the building. It did not appear-that there was more straw scattered about than would ordinarily - collect from the business transacted in the building. It was shown by the defendant' that improved spark-arresters wére in general use on the locomotives of the road, but it did not appear from what particular locomotive this fire originated. The defendants, inter alia, submitted' the following point, to which is appended the answer of the court, Ingham, P. J.: That the jury, in determining accountability in this case, must consider the immediate and not the remote cause of the fire; that if the fire communicated from the locomotive first to the straw and from thence to the building of the plaintiffs, the engine was the remote and not the immediate cause, and the defendant would not be liable. Ans. “ This asks us to charge you that if you believe from the evidence that the fire commenced in the straw, and that from thence it ran to the building and the building was thereby consumed, the company would not be liable for damages, even if it were proven to your satisfaction that they were running their engines in a negligent manner. We decline to charge you that this is the law.” . In the genera] charge, the court, inter alia, said : “ It seems to me, therefore, a question.to be left to you, whether the fire did originate directly from the neglect of running the engine; it is for you, I say, to determine this under the evidence. If you are satisfied that it did originate from the locomotive, and was communicated directly to the straw and then to the building, you would be at liberty to find that the company were guilty of neglect, and in favor of the plaintiffs.” The verdict was for plaintiffs for $378.30. After judgment the defendant took this writ, assigning for error the answer to the point and the portion of the charge noted. The neglect of the defendant was the remote cause. There was an intermediate agent, the straw. Except for the strong wind, the fire in the straw would have been extinguished. This case is governed by the principles laid down in Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353. Where there is no dispute about the facts, the court should decide the question of remote or proximate cause. It was properly left to the jury to determine what was the proximate cause: Pennsylvania Railroad Co. v. Hope, 30 P. E. Smith 378; Pennsylvania Railroad Co. v. Hendrickson, Id. 182; Pennsylvania Railroad Co. v. Stranahan, 2 W. N. C. 215.
89 Pa. 460Graver v. Fehr (1879)
1. A summary proceeding given by statute is in derogation of the common law, and where advantage is taken of such, proceeding, the necessary jurisdiction must appear on the face of the record or the proceeding is coram non judice and utterly void. 2. Where it does not affirmatively appear that a certain rent was reserved, a justice of the peace has no jurisdiction under the Landlord and Tenant Acts. 3. The limitation of twenty days within which a certiorari must be sued out, does not apply where it is apparent the justice has no jurisdiction. 4. The Act of 1810 does not apply to the summary process for obtaining possession of leased property under the landlord and tenant acts. 5. Lacoek v. White, 7 Harris 495, and Rubicum v. Williams, 1 Ash. 230, followed.
89 Pa. 464Eilenberger v. Protective Mutual Fire Insurance (1879)
Error to the Court of Common Pleas of Wyoming county: Of January Term 1879, No. 176. Debt by R. E. J. Eilenberger against the Protective Mutual Fire Insurance Company, for a loss occasioned by the burning of plaintiff’s store and contents, which were insured in the defendant company. The defendant pleaded nil debet, payment, set-off with leave, &c., and afterwards, by permission of the court, filed an amended plea, assigning breaches in the warranty. The application was to form a part of the policy of insurance, and all statements therein made were to constitute warranties on the part of the insured. The application closed in these words: “ The following questions must be answered fully and definitely by ,the agent, and when this is not done, the application will be declined : Have you personally examined this risk ? Do you think it advisable to take it ? Yes. Are stoves, pipes and chimneys all secure ? Yes. Are you personally acquainted with the applicant and risk and do you fully approve it? Yes. Has he ever met with loss by fire? No.” The policy contained the following condition : “ It is agreed that the person or persons, if any, other than tne assured, who have procured this insurance to be taken by this company, shall be deemed to be the agent or agents of the assured and not of this company, in any transactions relating to this insurance. * * * One Soellner, was the agent of the company, and in writing down the answers of the insured when seeking the application he falsely misstated them. They will be found set forth substantially in the opinion of this court. Upon-motion' of defendant, the court, Ingham, P. J., withdrew from the consideration of the jury the testimony of Soellner as to his writing these answers, as well as the testimony of the plaintiff in regard to "the same, and then entered a compulsory nonsuit, on the ground that the plaintiff had given no sufficient evidence to entitle him to recover a verdict as is in law sufficient to maintain the action. The withdrawal of this evidence and the entry of the nonsuit were assigned for error by the plaintiff, who took this writ. As the application precedes the policy, the insured could not be presumed to know what its conditions were, and he cannot assuredly, on such a ground, be deprived of- the benefits of his contract: Wood’s Ins. 278, 401, and cases cited noté 6; Ins. Co. v. Wilkinson, 13 Wallace 222; Roth v. City Ins. Co., 6 McLean 364. In order to be efficacious, such notice must be given before the negotiations are completed: Wood’s Ins. 644; Commercial Ins. Co. v. Ives, 56 111. 402; Bebee v. Hartford Ins. Co., 25 Conn. 51. Notice to the agent was notice to the company and under such circumstances the company is estopped: Wood’s Ins. 276 and 632, and cases there cited: Howard’s Ins. Co. v. Bniner, 11 Harris 50; Ins. Co. v. Cooper, 14 Wright 381; Rowley v. Empire Ins. Co., 36 N. Y. 550 ; ¿Etna Ins. Co. v. Olmstead, 21 Mich. 246. The agent in this case had sufficient power to receive notice: Flanders’s Ins., 2d 'ed. 115; Bebee v. Hartford Ins. Co., 25 Conn. 51; Lycoming Ins. Co. v. Woodworth, 2 Norris 223. The question is not only what powers the agent had, but more particularly what power did the company hold him out as possessing: Wood’s Ins. 640, 661, 662; Eclectic Life Ins. Co. v. Fahrenkrug, 68 111. 463 ; Haughton v. Embank, 4 Camp. 88; Neal v. Erving, 1 Esp. 61; Perkins v. Washington Ins. Co., 4 Cowen (N. Y.) 645; Beal v. Park Fire Ins. Co., 16 Wis. 241; New York Insurance Co. v. National Ins. Co., 20 Barb. (N. Y.) 476; 85; Nicoll v. American Ins. Co., 3 Wood. & M. (U. S.) 529; Gloucester Manf. Co. v. Howard Fire Ins. Co., 5 Gray (Mass.) 497 ; Lungstrass v. German Ins. Co., 57 Mo. 107 ; Palm v. Medina Ins. Co., 20 Ohio 529 ; Dayton Ins. Co. v. Kelly, 24 Ohio 345 ; Flanders’s Ins. 2d ed., p. 112 and cases cited; Hough v. City Fire Ins. Co., 29 Conn. 10. Soellner’s authority was only that of a solicitor of risks. The acts of a mere agent authorized to represent the company, beyond the specific powers committed to him cannot be the ground of estoppel in a matter unconnected with the exercise of his powers. This can take place only when the knowledge lying at the foundation of the estoppel comes home to those officers wdio exercise the corporate powers of the company, or to an agent whose powers relate to the very subject out of which the estoppel arises : Mitchell v. Ins. Co., 1 P. F. Smith 402 ; Susquehanna Ins. Co. v. Perrine, 7 W. & S. 348; Cooper v. Ins. Co., 14 Wright 299 ; Ins. Co. v. Johnson, 11 Harris 72; Smith v. Ins. Co., 12 Id. 320. If Soellner made the mistake in the answers it was negligence in the insured not to read them over to see if they were correct: Greenleaf’s Est., 2 Harris 496 : Penn. Railroad Co. v. Shay, 1 Norris 198. The warranty by plaintiff was a condition precedent to defendant’s liability : Cooper v. Ins. Co., supra; Phillips on Insurance 346 ; Ins. Go. v. Arthur, 6 Casey 815.
89 Pa. 470Hartley v. Decker (1879)
1. In a written agreement D. stipulated that he was to peel all the hemlock timber from eight inches up to the largest on the farm of B. by the middle of March 1874, and start the bark on good roads convenient to the teams. When it was so started and measured D. was to have one-half of the bark in payment for his labor. Held, that this was an entire contract, and that until D. had. fully complied with his agreement he had no title to any portion of the bark. 2. Undecided whether this was a case in which the doctrine of recoupment would apply iu case the jury should find that the defendant had substantially complied with the contract.
89 Pa. 474Philadelphia & Reading Railroad v. Ramsey (1879)
Error to the Court of Common Pleas of Schuylkill county; Of January Term 1879, No. 80i Assumpsit by William Ramsey against the Philadelphia and Reading Railroad Company, to recover damages for the loss of a package of clothing, alleged to have occurred through the failure of the defendants to safely carry to and deliver the said package at the place mentioned in the address thereon. It appeared that on July 16th 1873, the plaintiff took a package of clothing to the express office of the defendants’ company at Mahanoy City, Pennsylvania. The package was made up in a paper and addressed to the plaintiff’s wife at Rehoboth, Delaware. The address was on the package when brought to the office and delivered to the express agent. The plaintiff testified: “In the month of July 1873, I took a package of clothing, addressed to my wife at Rehoboth, Delaware, to the Philadelphia and Reading Railroad Company’s office. That was the only address there was on it. I handed it to Mr. Hess, and asked him to please send it to Mrs. Ramsey, at Rehoboth; and I wanted to pay the express charges, but he said he did not know what they would be. I said I wished he would find out, as I did not know how Mrs. Ramsey would' be off for money, and I did not know as she would be there when the package arrived. I asked if there was any w7ay he could get it down, and he said ‘ Yes, we can send it on and collect back to this office, and I will do that, if you will pay me promptly the express charges when I get the return,’ and I said ‘Yes, I would do that.’ Then I left the package there. Thomas Hess was the name of the express agent.” The original waybill was produced, whereby it appeared that sometime after the delivery of the package, Ramsey had paid forty cents charges, which were the rates only to Birdsboro, at which place the defendant delivered the package to the Wilmington and Reading Railroad, which was the usual connecting route to Rehoboth. In the general charge, the court, Pershing, P. J., inter alia, said:— “ The question for you is, what was the contract ? It is a question of contract entirely. Did the Reading Railroad Company receive these goods and undertake to convey them to Rehoboth ? And did they fail to deliver them at that place ? If they did, then the company would be liable. If the contract was simply to deliver them at Birdsboro, and there transfer them to a connecting route, and they were lost afterwards upon the connecting route, then the company would not be liable. In some of the cases it is held that the amount of charges paid is evidence for the consideration of the jury. Thus, in the case of a company whose route does not extend to the point of destination of the goods, but it is necessary to forward them by a connecting route or routes, and it receives the goods for transportation, and takes pay for the whole distance, it is evidence that they undertook to convey them over the connecting-route, and of liability for any loss that occurred after they left their own route. The evidence here is that Mr. Ramsey offered to pay at the time, but the agent could not tell him what the express charges would be. It was some time after this that the forty cents were paid, to w-hich your attention has been called by the testimony.” The defendant submitted the following points, to which are appended the answers of the court: 1. If the jury believe the evidence of the defendants’ witnesses, the acceptance and undertaking of defendants to deliver the package safely to plaintiff at the end of the route has been fully complied with. Ans. “We think that it is a question of fact entirely for your consideration what the contract was. You will determine by your verdict whether the contract extended to Rehoboth, or to the point on the Reading road at Birdsboro, where the goods were transferred.” 2. If the jury believe the evidence that the defendants carried the package to the terminus of their route at Birdsboro, and there delivered it in a safe condition to-the next connecting carrier in the usual course of business, the defendants’ responsibility there ended, and the verdict of* the jury should be for the defendants. Ans. “ That is just as you determine from the evidence what the contract was; if it was a contract to carry to Birdsboro, then there could be no liability here; but if you find the contract was to deliver the package at Rehoboth, then the defendants would be responsible for the loss.” 3. The defendants’ responsibility can only be for injury or loss occurring by their own negligence or that of their employees, and the defendants are not responsible for the loss of the package while in the hands of another carrier. Ans. “We give the same answer to that; it depends upon whether they made a contract which wrould include a connecting i-oute.” 4. If the jury are satisfied from the evidence that the loss of the package occurred after it oassed from the hands of the defendants, then the verdict of the jury should be for the defendants. Ans. “Not unless you find that their contract terminated at Birdsboro.” 5. The defendants were common carriers to the end of their own route only, and beyond that held the relation to the plaintiff of forwarders only, and as such, having forwarded the package beyond their lines at the point nearest and most convenient to destination, in the usual course of business, being in good condition when so forwarded, the plaintiff cannot recover in this action. Ans. “We affirm this point if you find that the contract between the company and Mr. Ramsey was that the Reading Railroad Company was simply to forward them; that is, that the contract did not extend beyond Birdsboro or the terminus of their own road, and that from that point they were simply forwarders of the goods through the agency of the other road. If you find that the contract was to convey the goods to Rehoboth then this point would not apply.” Verdict for plaintiff for $178.20. After judgment defendant took this writ and assigned for error the answers to the foregoing noints. The proof must be clear that a carrier has bound himself to transport goods beyond the terminus of his own route: Pennsylvania Railroad Co. v. Berry, 18 P. F. Smith 277 ; Baltimore & Philadelphia Steamship Co. v. Brown, 4 P. F. Smith 77. The mere acceptance of goods prepaid to a certain point, does not imply that the carrier assumes any duty to transport beyond the end of its own route and delivery' to the next carrier: 2 Redfield American Railway Cases 321; Pennsylvania Railroad Co. v. Berry, supra ; American Express Co. v. Bank, 19 P. F. Smith 394; Mullarkey v. Railroad Co., 9 Phila. R. 114; Union Express Co. v. S'hoop, 4 Norris 325; Camden and Amboy Railroad Co. v. Forsyth, 11 P. F. Smith 81. The courts of this country have frequently held the carrier liable beyond the limits of his own route upon the ground of a special undertaking, either expressed or implied, but whether any such contract exists, is regarded as a matter to be determined from all the facts and attending circumstances of the case, and will more generally be an inference for the jury, than the court, unless it depends upon the effect of written stipulations, and even then will often be affected, more or less, by attending facts and circumstances : 2 Redfield on Railways 116 ; Chouteaux v. Leech & Co., 6 Harris 224; Baltimore .and Philadelphia Steamship Co. v. Brown, 4 P. F. Smith 77. And there was sufficient evidence here on the question of the contract to iustify the submission: American Steamship Co. v. Bryan, 2 Norris 448.
89 Pa. 477Rice v. Constein (1879)
1. One of the conditions precedent to a valid appeal from an award of arbitrators, is the actual payment of the costs within the twenty days allowed by the Act of Assembly. 2. A record was in these words: 11 March 18th 1878, defendant appeared, made oath, paid costs to prothonotary, to wit, $43.23, and entered into recognisance. Same day affidavit and recognisance filed with prothonotary.” Held, that it could not be shown by extraneous evidence that the payment was by check. Held further', that the check having been paid within the twenty days, the appeal was valid. 3. Bichter v. Cummings, 1 Leg. Chron. 52; Walker v. Graham, 24 P. P. Smith 35; Carr v. McGovern, 16 Id. 457 ; Ellison v. Buckley, 6 Wright 281, distinguished.
89 Pa. 480Kilrow v. Commonwealth (1879)
Error and certiorari to the Court of Quartér Sessions of Susquehanna county: Of January Term 1879, Nos. 72 and 73. Indictment of Thomas KilroAv for receiving stolen goods. On the night of December 5th 1876, the store of Roscoe T. Ilandrick, at Lawsville Centre, Susquehanna county, Avhs broken open, and about $40 in money, $15 in postage stamps, and cigars of the value of $78 Avere stolen. Kilrow was indicted for receiving the cigars knowing them to have been stolen. The only direct evidence against the defendant was the testimony of John Preston, who swore that he, with Frederick Gill and William Chichester, had committed the larceny. At the trial, before Jessup, P. J., the defendant offered to prove, on cross-examination, by Preston, that while in Canada he Avas told if he remained there he would get ten years for the offence; if he came back to the United States they Avould let him off easier; that he came back in part because of this inducement; being offered to shoAV motive and a strong desire to do anything to make his sentence light, and to affect his testimony. Rejected, fist assignment of error.) Under objection, Chichester was permitted to testify that “Kilrow had received stolen goods before the burglary on the 5th of December, to show guilty knoAyledge, purpose and practice.” (2d assignment.) . T. D. Estabrook, under objection, testified “ that his store was robbed in September 1876; that he tracked the two thieves to Kilrow’s; to show guilty knoAvledge and to corroborate Preston’s statement that KilroAY kneAv there ayus going to be a search for stolen goods.” (3d assignment.) The court refused to permit defendant to ask this same Avitness: “ If Edward Stack was one of the men he suspected of breaking into his store, and if he did not bring a prosecution against him for this crime, and that Stack came into court, but that he, Estabrook, dropped the prosecution and had a nolle prosequi entered.” (4th assignment.) Preston testified, under objection, “that before he, the witness, went to Liberty, in - November 1876, with Jewell’s horse, he saw Thomas Kilrow; had a talk with him ; that Kilrow knew that the witness and Fred. Gill were then going to rob Handrick’s store, and that Kilrow agreed to pay the expenses of the trip, if they, Preston and Gill, made anything by the trip ; for the purpose of showing guilty knowledge on the part of" defendant.” (5th assignment.) Jewell testified, under objection, that he let Preston and Gill have his horse December 1st, to go to Snake Creek, near Handrick’s store; for the purpose of corroborating Preston. (6th assignment.) J. H. Dusenberry testified, under objection, that he “informed Kilrow of the robbery of T. D. Estabrook’s store; that the goods had beén traced to his house, and that a search-warrant was or would be out; for the purpose of corroborating Preston as to the removal of the Stephens goods from Kilrow’s house.” (7th assignment.) The court rejected defendant’s offer to-prove by Lewis Frink, in rebuttal, “that he purchased of Preston’s father a Blue Jay cigar, one of the stolen brands, in October 1877; to be followed by proof that the father was not dealing in cigars, and to be followed by proof that the balance of Preston’s cigars were left with his father.” (8th assignment.) In the general charge, the court, inter alia, said: “ An accomplice who comes upon the stand to testify against a receiver of the goods he has stolen, necessarily occupies a position of disrepute, and yet the law makes him a competent witness, and did formerly, before defendants could testify for themselves in criminal cases, as a matter of necessity, for otherwise many guilty persons would escape the just penalty of their crimes, there being, oftentimes, no other sufficient evidence to insure their proper conviction, while their guilty companions are willing, through penitence, or some hope of benefit, to divulge the truth in reference to their secret crime. But from the very character of such witnesses, the law and the courts look with caution upon their testimony ; yet, being competent to testify, their credibility is entirely for the jury, and to be judged of as that of any other witness, taking into account their disreputable character and position, and while the jury would be warranted in finding any fact in the cause upon their unsupported testimony if fully credited and believed, yet we must say to you that it would be very unsafe and dangerous for the jury so to do — and this is the ooinion of almost all the courts. Is the evidence of Preston and Chichester upon this point of the robbery corroborated by the other uncontradicted testimony in the cause ? This has been fully argued before you, and upon their testimony and all the other evidence bearing on this point of the case under our instruction you will pass upon this second point.” (9th assignment.) “ If the evidence satisfies you of this, then you will pass to the third point. Did the defendant receive these cigars knowing them to have been stolen ? The main question on this point is, did he receive them at all ? The only evidence, given by the Commonwealth, of receiving, is coupled with a guilty knowledge, and as the counsel for the defendant conceded in their argument before you if you find the defendant received the cigars as testified to by Preston, you will have no difiiculty under the same evidence, and the other evidence, in finding guilty knowledge, on his part.” (10th assignment.) “ Have the Commonwealth then satisfied you upon this point of the truthfulness of Preston’s statement, and is he so corroborated upon material parts of his testimony as to give credit to his whole statement. It is not necessary that an accomplice should be corroborated upon every material part of his testimony, for if this was required a conviction could be had without his testimony at all; but before a conviction should be had upon his evidence in any particular, he should be so corroborated in other material parts of his testimony by uncontradicted evidence as to impress the jury beyond a reasonable doubt of the truthfulness of his entire story. “ When this is the case the law permits the jury to base a conviction upon such testimony. Taking then all the evidence of the Commonwealth which is claimed as corroborating Preston and Chichester, and all the evidence on the part of the defendant which is claimed to contradict and impeach them, are you satisfied with the truthfulness of Preston’s entire statement about Kilrow’s receiving the stolen cigars and beyond a reasonable doubt arising out of the evidence; if so, then you must also find whether he received them knowing them to have been stolen; but of this, as we said before, you will have but little difficulty.” (11th assignment.) “And if upon such careful and diligent consideration of the evidence you are satisfied of the guilt of the defendant beyond a reasonable doubt, then you should return a verdict of guilty.” (12th assignment.) “ The law now permits the defendant to testify in his own behalf, but by reason of his great interest in the event of the case his testimony should be received with great caution and scrutinized very carefully, for it is almost never the case that a defendant voluntarily goes upon the witness stand to admit his own guilt in the case where he is defending upon a plea of not guilty.” (13th assignment.) The defendant submitted the following points, to which are appended the answers of the court: 1. That it is always dangerous to convict a defendant on the uncorroborated testimony of an accomplice, and it is the duty of the jury to acquit the defendant in such case. Ans. “We cannot give you any binding direction as-requested in the point. We have already given you the law on this point.” (14th assignment.) 3. That the corroboration required in this case must be evidence that goes to show that Thomas Kilrow committed the crime of receiving stolen goods. Ans. “ To this we say that if the evidence of corroboration is such as to impress you with the truthfulness of Preston’s entire statement, then it is not absolutely necessary that he should be corroborated as to the connection of the defendant with the receiving.” (15th assignment.) 6. The jury should not convict the defendant unless the evidence of the accomplice or accomplices be confirmed, not only as to the circumstances of- the crime, but also as to the defendant’s connection with the crime charged in the indictment. Ans. “ We decline to give you any binding instructions, as requested in this point.” (16th assignment.) The bill of indictment as returned by the grand jury charged the offences, of receiving two thousand cigars belonging to Roscoe T. Iiandrick, and one thousand cigars belonging to- Thaddeus D. Ester-brook in a single count. The defendant demurred to the’ bill on the ground of duplicitiy, but the court overruled the demurrer and directed the defendant to plead. (17th assignment of error.) During the progress of the trial the indictment was amended by striking out the words “ Thaddeus D. Estabrook & Son,” where-i ever they occurred and inserting “ R. T. Handrick” in their stead. (18th assignment.) The defendant was convicted, when he took these writs of error and certiorari, assigning the errors heretofore noted. We should have been permitted to cross-examine the accomplice to show his motive. Great latitude in such cases is always allowed: 1 Whart. Crim. L. 791. It would have disclosed strong desire to lighten his sentence. It was error to admit evidence of other crimes of receiving from other owners and persons. Worse still, to prove the declaration of Kilrow that he had received other stolen property without alleging when or where, or what the goods were, or to whom they belonged: Coleman v. People, 55 N. Y. 81; 2 Archibald’s Crim. Pract. & Plead. 1436 ; 2 Bennett & Heard’s Lead. Crim. Cas. 32: Regina-v. Oddy, 2 Dennison C. C. 264; Roscoe Crim. Ev. 91; 1 Taylor Ev. 355 ; Shindley v. State, 23 Ohio 130. There must be distinct proof of the prior receiving else it is not admissible to show guilty knowledge. It was also shown that Gill and Preston attempted to commit a distinct crime, and that Kilrow was accessory to it in order to convict him of the crime of receiving. Preston was not corroborated in any particular as to the act of receiving. The court erred in saying that accomplices are to be judged of,as other witnesses, taking into consideration their disrepute, and if you are satisfied beyond a reasonable doubt it is your duty to convict. On this point see: U. S. v. Smith, 2 Bond 323; U. S. v. Harris, 2 Id. 311; Lee v. State, 21 Ohio St. 151; State v. Litchfield, 58 Maine 267; Childers v. State, 52 Ga. 106 ; Middletown v. State, Id. 527 ; 1 Whart. Crim. L. 791, 7 ed. It was material to show that Preston, who claimed that he sold all the stolen cigars to Kilrow, had some of them in his possession by .identifying them in the hands of his father. Two offences were charged in one count. It was bad for duplicity: Commonwealth v. Dibbins, 2 Pars. 380; 1 Bish. Crim. Pract.; Hutchinson v. Commonwealth, 1 Norris 472.
89 Pa. 490Hillbish's Appeal (1879)
D. died seised of certain real estate, and leaving a widow and nine children. In 1836 said real estate was divided by proceedings in partition. The inquest appraised a purpart and D.’s son George took it at the valuation. , The court approved the security George offered for the payment of the proportions of the widow and other heirs, and adjudged the purpart to him, his heirs and assigns for ever, “ he having entered the usual securities to pay the other heirs according to law.” The record omitted to state the form of the security, and neither bond nor recognisance could be found. In 1858 the widow died. In 1860 II. obtained a judgment against George. In 1862 George confessed a judgment to the heirs in an amount that covered the one-third allotted to the widow and the proportions of the heirs. This judgment was not duly revived. After the decease of George, the real estate was sold under an order of the Orphans’ Court, and II. claimed that he had the prior lien upon the fund. The auditor allowed the heirs their respective proportions in the third allotted to the widow, with interest from her death, but decided that the ■ lien of the heirs to their own proportions did not extend farther back than to the judgment confessed to them by George, and that that judgment, not having been revived, the judgment, of II. was entitled to priority. The court below held that the proportions of the heirs should have been paid before judgment creditor. Held, that this was error.
89 Pa. 497Lancaster Fire Insurance v. George L. Lenheim & Co. (1879)
1. A policy of fire insurance was upon a stock of “general merchandise of all kinds usually kept in a country retail store.” The policy provided against loss by fire to the property specified, “ except as hereinafter provided.” Immediately following this clause was a condition that the company should not be liable unless by special consent in writing endorsed on the policy for any loss where “ turpentine or benzine” were deposited, stored, kept or used, on the premises. Turpentine and benzine were both kept for sale, but no consent had been given therefor. Held, that this was a violation of the condition and avoided the policy. 2. The insurance clause on the general stock of merchandise was in the written portion of the policy. The prohibitory clause was in the printed portion. The court below instructed the jury that the latter was repugnant to the former and could not be interpreted so as to prevent a recovery if they found that “ turpentine and benzine” were part of all kinds of merchandise usually kept in a country store. Held, to be error. 3. Birmingham Insurance Co. v. Kroeger, 2 Norris 64, followed.
89 Pa. 503Richardson v. Clements (1879)
Error to the Court of Common Pleas of Montgomery county: ' Of January Term 1878, No. 24. Amicable action of trespass guare clausum fregit, wherein Charles Richardson was plaintiff and Samuel Clements defendant. A case was stated for the opinion of the court below, the substance of which is set forth in the opinion of this court. The clause in the deed is a reservation or exception, and must be construed most strongly against the grantor and most favorably to the grantee: Whitaker v. Brown, 10 Wright 199; Trout v. McDonald, 2 Norris 144; Buller v. Denning, 5 B. & C. 842; Danner v. Spurrier, 3 Bos. & Pul. 399; Barnes v. Burt, 38 Conn. 541. When, in pursuance of a grant or reservation of a right to an easement, such easement has been located and defined, the right is exhausted, and the owner of. the dominant tenement cannot make a material change in the location or character of the easement: Galloway v. Wildner, 26 Mich. 97; Fitzhugh v. Raymond, 49 Barb. 646 ; Hull v. Fuller, 4 Vermont 199 ; Washburne on. Easements, sect. 3, pi. 22; Moorhead et al. v. Snyder, 7 Casey 514. The words “ or other process,” immediately following the words “hydraulic ram, wheel,” are to be construed as referring to things of the same kind as those particular words, that is, a process of which water should be the motive power. No process in which wind, steam, or any motive power other than water was intended or thought of by either of the parties to the deed. Where general words follow particular words, the rule is to construe the former as applicable to the things or persons particularly mentioned : Sedgwick on Statutes 423; Sandiman v. Breach, 7 B. & C. 96, 14 E. C. L. Rep. 22; Rawlings v. Jennings, 13 Yes. 39; Cavendish v. Cavendish, 1 Br. Oh. R. 467; Ingill v. Nooney, 2 Pick. 365; Bellany v. Bellany, 6 Florida 62. When property is granted, all that is necessary for the enjoyment of the grant is impliedly granted as incident to the express grant. And the same rule of construction applies to an exception in a grant: Allen v. Scott, 21 Pick. 25. It is not alleged that any change is made in the substance of the thing itself, but it relates only to the means of obtaining it. If wind can be used as a power, and used for forcing water (which is not doubted), doing no injury to the plaintiff (which is not pretended), is it not clearly an “ other process of forcing water.” The reservation of the right to a supply of water by “ other process of forcing,” implied the right to introduce any new or improved method to obtain that supply : French v. Morris, 101 Mass. 68 ; Bishop v. North, 11 M. & W. 418; Attorney-General v. Cambridge Gas Co., 6 Eq. Oases 304; Daud v. Kingscote, 6 M. & W. 174; Stevenson v. Wiggin, 56 N. H. 308 ; Trout v. McDonald, supra; Hart v. Hill, 1 Whart. 124; Cressy. Yarney, 5 Harris 496.
89 Pa. 506Heysham v. Dettre (1879)
262. Assumpsit by Ambrose Dettre against Robert Heysham on a promissory note of the defendant for $110 made payable to the plaintiff ninety days from date. The defendant pleaded non assumpsit, payment with leave, fraud, want of consideration and set-off.
89 Pa. 509Lewis's Appeal (1879)
Appeal from the Orphans’ Court of Chester county: Of January Term 1878, No. 228. Appeal of Joseph J. Lewis, administrator of Hopkins Skiles, deceased, from the decree of the court in the distribution of the estate of William Skiles, deceased. An auditor was appointed to settle the account of said administrator, before whom it appeared that William Skiles died leaving a will, dated April 13th 1859, wherein, after giving sundry pecuniary legacies, and directing his executors to sell sufficient real and personal estate to pay debts and legacies, he disposed of the residue of his estate as follows:— . “Also, all the balance of my property, personal and real, I give and bequeath to my sister, Susanna Skiles, her lifetime, and at her death it is my desire that a part of it go to Hopkins Skiles and his heirs.” After the death of William Skiles, his executor proceeded to settle his estate, and filed two accounts — one April 13th 1860, and another January 7th 1861. On the 1st day of April 1861, pursuant to the power conferred by the will, he sold a tract of 89 acres and 88 perches of land to Susanna Skiles, only sister of the testator. The purchase-money, beyond what was needed for the payment of debts and legacies, amounted to $5779.66. She gave to the executor a mortgage for the payment of the principal of that sum, without interest during her life. Susanna Skiles held the land so purchased till May 22d 1876, when she died, leaving a will, by which she disposed of her estate to others than the legatees of her brother. She appointed William J. Burnside her executor, to whom letters testamentary issued. The executor of William Skiles having collected a part of the mortgage given to secure the purchase-money, filed a supplementary account, charging himself with the sum received, and showing a balance for distribution of $2830.10. The account was confirmed nisi, September 10th 1877, and an auditor was appointed to make distribution. The nearest of kin of William Skiles, at the time of his death, were Susanna Skiles, an only sister, and several first cousins— fourteen in number — among whom was Hopkins Skiles, who died in the lifetime of Susanna, in Maryland, leaving a widow and children. The fund before the auditor was claimed by his administrator in this state and by the executor of Susanna Skiles. The auditor, inter alia, reported “ One view of this clause of the will as presented to the auditor is that the division or parting is to be made between ‘Hopkins Skiles and his heirs,’ and Susanna Skiles ; in other words that the clause should be made to read ‘ a part of it to go to Hopkins Skiles and his heirs,’ and a part (or the other part) to Susanna Skiles. This view, in the opinion of your auditor, is equally erroneous and untenable; for it is clear, ¡from the language of the will, that the testator intended giving his sister Susanna Skiles a life-estate and nothing more, for he not only uses the words ‘her lifetime,’ but adds ‘and at her death it is my desire,’ &c. He does not intend or attempt to dispose of the residue until after her death; so that it would be utterly impossible for her to take with'‘Hopkins Skiles and his heirs’ under the will. It being therefore beyond controversy that Susanna Skiles can take only a life-estate under the will, any other interest she may derive in her brother’s estate must come tbrough the medium of the intestate laws. But if she take under the intestate laws, she takes not under but outside of the will, whilst ‘ Hopkins Skiles and his heirs’ take under the will or not at all, and as it is evident the testator intended to dispose of the whole of his estate by his will, we cannot presume that he intended Hopkins Skilesand his heirs to take a part of the residue under the will, and his sister Susanna the other part under the intestate laws. If Susanna Skiles takes anything more than a life-estate it must be under the intestate laws, whilst if ‘ Hopkins Skiles and his heirs’ take anything at all it must be under the will of William Skiles. “But there is another and conclusive answer to both the views just discussed, viz.: That they require the supplying of Avords to carry them into effect, and to that extent'the making of a will for, and not the interpreting the will of the testator, which the laAv will not permit. * * * Your auditor is, therefore, of the opinion that as to the residue of his estate, the testator died intestate, and that as the fee-simple could not be in abeyance, but vested immediately upon his death and in his next of kin, Susanna Skiles, that consequently she took instead of a life-estate, the fee-simple, and that the funds no>v for distribution, being a portion of that estate, must be paid over to William J. Burnside, her executor, to be disposed of according to the provisions of her will.” The administrator of Hopkins Skiles filed exceptions, which the court overruled and confirmed the report, when this appeal was taken and this action assigned for error. It is to be presumed that a testator intended by his AA’ill to dispose of his Avhole estate, and courts will give this meaning to it if it can be fairly gathered from its language.' Beyond question the testator intended Hopkins Skiles to be one of his legatees. The gift is absolute and the donee of this gift is certain. We contend, also, that the subject of the gift Avas well defined. It was a share of the “ balance ” of the estate which Susanna Avas to enjoy for life. That balance is now made certain by the settlement of the estate and it is this sum, thus ascertained, which is to be parted and one part allotted to Hopkins. Where something is to be divided into two parts, the presumption is that it is to be divided into two equal parts. Where a fund is to be divided courts will make an equal division : Boyle v. Attorney, 4 Vin; Abr. A. C. 486 ; Salisbury v. Benton, 3 K. & J. 529. In ascertaining who the distributees are, and- into how many shares a balance is to be divided, we must be governed exclusively by what is contained in the will. It noAvhere gives Susanna Skiles a part of this balance. It is not claimed, for her by reason of the provisions of the Avill. If she is entitled to the balance at all, it is because the Avill has made no disposition of it. He rights exist by reason of the intestate laws, and the number of parts into which the balance is to be divided, is not indicated by the will. The testator does not give a part to Hopkins Skiles and a part to Susanna Skiles, or use any language from which such an intent can be inferred. The appellant, in effect, supplies these words, because the intestate laws points her out as entitled to the estate. It is not even claimed by the appellant, that the testator intended to give Susanna one-half of the balance of his estate. It is rather intimated that the testator did not intend to give her absolutely any of it. How then can it can claimed that he intended to give one-half to Hopkins Skiles, since his portion is dependent upon the intention of the testator, as regards the other half? The claim of the appellant rests upon mere conjecture. This is not sufficient. The intention must be manifest, and rest upon something more certain than conjecture : Bradford v. Bradford, 6 "Whart. 244 ; Duffield v. Morris, 8 W. & S. 348 ; Nyee’s Estate, 5 Id. 259. We contend that the will is void for uncertainty and that Susanna has an interest under the intestate law and not under the terms of the will.
89 Pa. 514Bradley's Appeal (1879)
9, No. 188. Appeal of C. H. Bradley and others, trustees under a writ of domestic attachment from the decree of the court confirming the report of the auditor appointed to make distribution of the assets in the hands of said trustees.
89 Pa. 522Kane v. Commonwealth (1879)
Error to the Court of Quarter Sessions of Montgomery county: Of January Term 1879, No. 28. Francis Kane, who kept a tavern in Norristown, was indicted for selling liquor on election day, in violation of section 11 of the Act of April 12th 1875, Pamph. L. 42, which provides: “ It shall not be lawful for any person, with or without a license, to sell to any person any intoxicating drink on any day on which elections are now required to be held.” The defendant pleaded “ Not guilty.” At the trial it appeared that the liquor was sold in the evening of election day, after the polls were closed, and it was contended that the sale of liquor, as a beverage, after the election was over, by a licensed vender, was not a misdemeanor under, the statute. Among other points, the defendant submitted the following “ The jury are the judges of the law and the factto which the court answered: “We decline to affirm this point, and as to it refer to the general charge.” In the general charge, the court, Ross, P. J., inter alia, said: “ The defendant is a licensed vendor, and keeps and maintains a hotel in this borough. He does not deny the sale, and it appears, from the evidence of a witness who was present at a former trial, that he admitted, when he was a witness, that he did sell after the polls closed.' Is a sale under such circumstances a violation of the laws regulating the sale of liquor ? [I charge you, as' matter of law, distinctly and positively, that any sale of liquor made upon the day upon which elections are held, is a misdemeanor under the Act of April 12th 1875, Pamph. L. 42, sec. 11; and that the word ‘ day,’ as used in that section, applies to the whole twenty-four hours, beginning at midnight of election morning and ending at midnight of election night.] The law recognises no fractions of a day. That this was the intention of the legislature is clearly shown by the Act of March 13th 1872, Pamph. L. 24. That law prohibited a sale during the hours while the election was in progress. Experience proved that a sale before, and particularly a sale after, the polls closed, was as demoralizing as a sale while the election was being held, and hence the legislature extended the. prohibitory period to the entire day of twenty-four hours. Therefore, I repeat, a sale, in those twenty-four hours, of liquor as a beverage is a misdemeanor. But it is urged that the Act of 1872 is not repealed by the Act of 1875. If hot repealed, it is supplied, extended and enforced by that act; and a defendant who sells liquor on election day, as I have defined it, as a beverage, cannot shelter himself under the Act of 1872. * * * “ You have been asked to disregard the charge of the court as to-the law, and you have been told that you, and you alone, are the judges, in a criminal case, of the law as well as of the facts. [You are instructed by the senior counsel for the defendant that the court can only express an opinion as to what the law is, but that this opinion does not bind you. Now, it is well known that doctrine was one that I rigidly enforced, against, in many instances, the protest of learned counsel. But I believed it to be grafted in our system of jurisprudence, and I felt a jealous anxiety to preserve the rights of the citizen and the jury from judicial domination, usurpation or dictation. When a defendant had no remedy after conviction, save a motion for a new trial or arrest of judgment, based upon errors of law, before the same judge who committed such alleged errors, the doctrine was wise and right. But when the new constitution, and the legislation in pursuance of it, gave defendants in a criminal court writs of error, the reason which led to the adoption of the doctrine ceased, and the doctrine no longer exists.] It is very recently, in the case of Commonwealth v. Bla¿siusPistorius, that I charged the jury they must receive and be guided by the law of homicide as declared by the court. The defendant was convicted of murder in the first degree. This instruction was assigned as error, but the judgment was not reversed on that ground. “You are the exclusive judges of the facts; they are for you alone. The law is for the court, and you will be governed by it, or you will not, as you have sworn to do, try the case i by the law and the evidence.’ I do not assert that I am infallible. It is human to err, but it is not for you to declare my error. If I err, I am glad to know that I can be corrected, and the defendant protected, in a higher tribunal. “ If, then, you believe the defendant here sold liquor during the twenty-four hours of the day upon which the election was held, though not in progress at the time of the sale, your verdict should be guilty. If you believe he did not thus sell, or have a reasonable doubt whether he did or not, your verdict will be not guilty.” The jury returned a verdict of “ Gruilty,” when defendant took this writ, among his assignments of error being the answer to the above point and the foregoing portions of the charge embraced in brackets. —We admit that the best evidence of what is the law is what the court declares it to be, but we insist that the jury are the ultimate judges of the law and the facts in every criminal case, and this court has so decided since the adoption of the new constitution, in Hutchinson v. Commonwealth, 1 Norris 478. The day on which elections are required to be held is from 7 o’clock a. M. to 7 o’clock p. m. No man can vote before or after that hour. No other portion of the twenty-four hours was election day, and therefore no law was violated by the defendant.
89 Pa. 528Gordinier's Appeal (1879)