95 Pa.

Volume 95 — Pennsylvania State Reports

92 opinions

95 Pa. 15Jamieson v. Capron (1880)
Error to the Court of Common Pleas of Warren county: Of May Term 1880, No. 211. Debt by J. R. Capron for use of Henry P. Duncan and others, against H. E. Brown, administrator of the estate of E. H. Dunn, .deceased, John R. Shaw and H. A. Jamieson. This action was brought to recover on two property bonds given in two actions of replevin instituted in the Common Pleas of Warren county. The writ was served on H. A. Jamieson alone, the surety for the defendants in the bonds. Both replevin suits were brought in the names of Henry P. Duncan, Samuel Duncan and Stephen Duncan, executors of Stephen Duncan, deceased. The property was replevied and bonds given by defendants. After the cases were at issue on the pleas of ne unques executors, non cepit and property, motions were made by the plaintiffs in both cases to amend the record by changing the title of the suits by substituting the heirs of Stephen Duncar (naming them) as plaintiffs, and about four and a half years thereafter the substitution was ordered. There were recoveries in the replevin suits in favor of Duncan’s heirs, and they undertook, in this case, to collect the amount from the surety in the cases, on bonds executed to the sheriff in the name and for the benefit of the executors, not the heirs, of Stephen Duncan. The questions in the case were, had the court the right to make the amendment, and if so, whether a recovery can be had against the surety in the amended cases, on the bonds given in the cases as they were originally brought ? Trial by jury was dispensed with, and the case was tried by the court, Wetmore, P. J. At the trial the records in the replevin suits were offered in evidence, and defendants objected, for the reason that they were not the same cases in which the bonds in suit were given. Objection overruled and evidence admitted. The defendant submitted the following points, all of which the court refused : 1. There having been no recovery by Duncan’s executors, in whose favor the original suit was brought, who were the plaintiffs when the bonds in controversy were given, there can be no recovery against the defendant, who was the bail in the bond given by defendants for the property replevied by Duncan’s executors. 2. That the amendment made by striking from the record the original party plaintiffs and substituting in their places entirely different parties, affects only the record of the cases in which the amendment was made, and has’ no effect whatever on the bond given to the sheriff as far as Jamieson, the bail is concerned. 3. The court had no power to amend anything farther than the writ, declaration, plea and judgment in the cases in which the amendment was made. 4. The above-named defendant was not a party to any of the proceedings in the original cases, had no notice of the application of the plaintiffs to amend, and is not bound by the action of the court in allowing the amendment. 5. That the act of Duncan’s executors in procuring the amendment by which others were substituted as plaintiffs in their place, released the surety in the property bond, against whom the substituted plaintiffs seek to recover in this case. The court found the facts substantially as set forth above, and in their conclusions of law, inter alia, said : “ The condition of the bond is that Eli H. Dunn et al. shall appear in court and defend and make good their claim to the timber or lumber. As between the executors and the heirs at law of Stephen Duncan, deceased, it was of no consequence to defendants to whom the property belonged. “ The construction of the bond of the bail is that they shall not be bound beyond the extent that shall appear by the surroundings of the transaction to have been contemplated at the time of the execution. Law and equity cast the responsibility on the surety, if by the terms of the agreement he assumed it; but this would not be so if the bond of the surety is not within the scope of the undertaking. When the bond was executed there existed the right under the law to add or alter the names of parties, plaintiff or defendant, when a mistake o.r omission had occurred in the same. “ If the amendment was within the authority of the court at the time and duly made, the rights of the defendant were subject to the exercise of this authority. It was within the scope of the undertaking of defendant. This position is fully sustained in the case of Hooker v. Woods’s Ex’rs., 9 Casey 466, which rules this case.” The court then entered judgment for plaintiff for $1095.02. Exceptions were filed by defendant to the decision of the court which were dismissed. This writ was then taken, defendant alleging that the court erred in the above entry of judgment, in the admission of the records of the suits in reolevin, and the refusal of the foregoing points.
95 Pa. 21Donaldson v. Commonwealth (1880)
Error to the Court of Oyer and Terminer of Warren county: Of May Term 1879, No. 60. Indictment of Irvine Donaldson for rape. The indictment was found in the Quarter Sessions, and the court made an order which was entered on the docket of the Quarter Sessions, that “ this case is certified to the Court of Oyer and Terminer,” but no certificate was filed among the records of the Court of Oyer and Terminer until some time after the trial, when a formal certificate was filed nune pro tune. There was no separate docket of the Court of Oyer and Terminer, but it was the practice to enter the proceedings of said court on the docket of the Court of Quarter Sessions. The judges of the latter court are also, by virtue of their commissions, the judges of the Court of Oyer and Terminer. The trial was before Wetmore, P. J., and Connelly and Acocks, A. JJ. The prosecutrix was a girl about thirteen years of age, and although the physician who attended her and examined her person was present at the trial, he was not called by either party. The defendant submitted the following point, which the court refused:— “ There can be no conviction in this case when the alleged violence was committed on a girl only thirteen years of age, and the physician who examined her the next day was in court during the trial, until the prosecution closed their evidence in chief, and was not called by the Commonwealth to prove that violence had been done to the prosecutrix.” The jury rendered a verdict of “ guilty.” It was afterwards discovered that the precept and venire had issued for thirty-eight petit jurors, returnable to the Quarter Sessions, while the Act of April 14th 1834, section 118, required that not less than forty-eight petit jurors should be summoned to serve in a Court of Oyer and Terminer. Eor this reason and on the ground that no certificate to the Oyer and Terminer had been filed, the defendant moved in arrest of judgment and for a new trial. A rule to show cause was granted, and after argument discharged, the court holding that although the venire was irregular, yet after a trial on the merits, without objection, the defect was cured by virtue of the Act of March 31st 1860, section 53. After citing Jewell v. Commonwealth, 2 S. & R. 300, and Fife v. Commonwealth, 5 Casey 429, the court, in discharging the rule, said :— “ The language of the act is clear and explicit. No verdict in any criminal court shall be set aside, nor shall any judgment be arrested or reversed for any defect or error in the precept issued by the court, or the venire for the summoning or returning of jurors, but a trial on the merits shall be a waiver of all errors and defects in relation or appertaining to the said venire, drawing, summoning and returning of jurors. The defect or error in the present case is in the venire. It should have issued for at least forty-eight jurors.If the defendant had declined to go to trial or moved to quash the array, the trial -would probably have been postponed or the array quashed. But going to trial by the forms and with the challenges allowed in the Court of Oyer and Terminer, we are constrained to the conclusion from the letter of the statute and judicial construction given to the same, that after verdict, it is too late for this objection to prevail.” The court further held that under the authority of Brown v. Commonwealth, 28 P. F. Smith 122, the certificate to the Oyer and Terminer nunc pro tunc was properly allowed and sufficient. The defendant took this writ and assigned for error, inter alia, that there was no Oyer and Terminer jury, and the court thus constituted had no jurisdiction to try the case; that there being no certificate transferring the case from the Quarter Sessions to the Oyer and Terminer, it was tried in the Quarter Sessions which had no jurisdiction to try such an offence; and the refusal of the defendant’s point.
95 Pa. 25Shillingford v. Good (1880)
Error to the Court of Common Pleas of Huntingdon county: Of May Term 1879, No. 182. Covenant brought September 19th 1877, by Dr. D. R. Good, trustee under the will of Dr. Daniel Houtz, deceased, against H. H. Shillingford, to recover royalty on bituminous coal mined by the defendant under a lease executed by Houtz to Shillingford, dated December 7th 1869. The defendant pleaded “covenants performed.” Under the terms of the above-mentioned lease, certain coal lands in Clearfield county, Pennsylvania, which were known as the Bickham, Howell and Johnston tracts, were leased “ for the purpose of mining, shipping and transporting coal from said lands, or other lands owned and operated by the party of the second part, his heirs and assigns, with the use of timber for mining purposes.” In consideration whereof, Shillingford agreed to proceed within thirty days to explore and prove the coal in said lands, “ and when the mines shall have been opened and all necessary improvements made at the cost of the party of the second part, to operate the same in a proper and workmanlike manner,” and pay a royalty of fifteen cents per gross ton. Shillingford commenced to ship coal in January 1871. As it came from the mines the coal was weighed on his own scales by a weighmaster of his own selection. Erom time to time, until the death of Dr. Houtz, the defendant rendered monthly statements of the amount of coal mined; each statement being accompanied with a check for the amount of the royalty thereon. On September 20th 187 3, Dr. Houtz died, leaving a will, which provided, inter alia, as follows : “ I give and bequeath to my three daughters, Hannah E. Brisbin, Eliza B. Good and Clara H. McAteer, jointly, and their heirs and assigns, all my lands in Woodward township, Clearfield county, Pennsylvania, namely: The Samuel Emlin tract, the Chandler farm, the Philip Loast, William Johnston, Jacob R. Howell and George Bickham tracts, * * * all equally and jointly, the coal leased thereon to remain in the hands and care of my trustee, together with my L. & A. Morrison paper maturing, until all the .legacies in this will are paid, and term of leases expired.” After the death of Dr. Houtz, Shillingford refused to pay the royalty until it should be legally determined whether it should be paid to his executors or the trustee under his will. A case stated was submitted to the court below, and in an opinion filed February 19th 1874, it was decided that the royalty was payable to the trustee. The plaintiff, Good, alleged that between December 7th 1869 and July 15th 1877, Shillingford had mined and shipped from said land 718,275 tons of coal of 2240 pounds each, the royalty on which amounted to $107,421.25, but that he had only accounted for 279,727 tons, the royalty upon which was $41,959.05, and that he had, therefore, failed to account for 438,548 tons, or to pay the royalty thereon, amounting to $65,728.20. On behalf of the plaintiff evidence was offered to show that a system of frauds had been adopted in weighing and measuring the coal mined and in accounting therefor. The estimates of engineers as to the quantity of coal mined were widely different. When the lease was executed Shillingford was president of the Moshannon Land and Lumber Company which owned the Thomas Edmundson tract, immediately adjoining the tract leased to him by Dr. Houtz. In November 1873, Shillingford claimed that he had discovered that the true division line between said tracts was not as supposed, and that he had mined about ten acres of coal from the Edmundson tract and paid royalty thereon. He therefore refused to pay any more royalty until he was reimbursed for the coal thus mined. An agreement was then entered into, of which the following are the* material portions: “ Office of the Kittanning Coal Co., July 11th 1874. “ Whereas, There is now or appears to be, as between the Moshannon Land and Lumber Company, and the. heirs of Dr. D. Houtz, deceased, a difference as to the division, .line between the said parties, known as the line of the Thomas^E'dmundson tract: Beginning at a pine tree and running north. 46° 26' east to a post, which is the northeast boundary line betweeñ the estate of Dr. D. Houtz, deceased, and the Moshannon Lapd and Lumber Company. “ And, whereas, The Kittanning Coal- Company have purchased from said Moshannon Company, alkthe^ coal right of said Thomas Edmundson tract, and also have leasefii-ffipm the said Dr. D. Houtz, in his lifetime, the coal on his lands (Howell and Biekham tracts). “ Now, therefore, We, the parties to the agreement, the said heirs of Dr. D. Houtz, deceased, viz.,-D.-B. Good, and Eliza B., his wife, George M. Brisbin, and Hannah E., his wife, and H. J. McAteer, and Clara, his wife, and the Kittanning Coal Company, by their general manager, J. B. Cameron, do. agree to exchange a certain number of acres of land upon condition as follows:” * * * Then follows an agreement by which the Kittanning Coal Company agrees to pay for coal min'ed‘4m Edmundson tract (10 acres and 38 perches), and in consideration thereof the heirs of Dr. Houtz agree to survey to the coal company 10 acres and 38 perches of their (Houtz) property, and that the agreement shall for ever settle the differences between the parties, not affecting the right as to true lines on the surface as between the Houtz heirs and the Moshannon Land and Lumber Company. It was alleged by the plaintiff, and evidence was introduced to show, that the above agreement was obtained by misrepresentation, suppression of the truth, falsehood and fraud, and was, therefore, void. The defence alleged that this agreement established the line between-the Edmundson and the Houtz tracts. The plaintiff on the contrary claimed that the single purpose of the agreement was to exchange ten acres and thirty-eight perches of land; that if the claim of the defendant was to prevail the heirs of Ur. Houtz had surrendered title to twenty-three acres of coal in the very heart of their land, worth, at that time, at least $23,000, and this, too, without a dollar of consideration, and without ever having the pretended new line run. The plaintiff contended, that a fair construction of the language of this agreement did not change or fix the true line between the tracts; that if the legal effect was to fix the real division line, then, that it was inoperative as a binding agreement upon the married daughters of Dr. Houtz, not having been acknowledged and that if otherwise binding it was void, as alleged above, for the reason that it was procured by misrepresentation and fraud. The various questions raised will be found in the assignments of error set forth below. The verdict was for plaintiff for $29,034.25. After judgment thereon defendant took this writ and alleged that the court, Dean, P. J., erred as follows: 1. In admitting testimony under the following offer: Plaintiff proposes to prove by the witness that he was employed as clerk and weighmaster by the person or company operating the Eranklin colliery, opened on the land covered by the agreement between Dr. .Houtz and II. II. Shillingford, defendant, already in evidence, from 1871 to 1875, and that false weights were used in weighing the coal mined and shipped, and that large deductions were also made from the quantities of coal mined, and that the reports made thereof to Dr. Houtz and to his trustee, the plaintiff, were false and of a much less number of tons than was actually mined and shipped, and that the said false weights were used and the said deductions made by direction of the general superintendent of the mine. Defendant objected to any proof of deductions or any other proof affecting the quantity of coal mined prior to November 1873, the date of the death of Dr. Houtz, the trustee, plaintiff, not being entitled to rents accrued before the death of the testator. Evidence admitted. 2. In refusing defendant’s first point: “ The plaintiff is not entitled to recover from the defendant for any alleged breaches of covenant prior to the death of Dr. Houtz.” 3. In charging : “ The legal title to the coal leases and all money due upon them at the time of the testator’s death, passed in our opinion to Dr. Good under these provisions of the will as fully as if Dr. Houtz had assigned them to Good in'his lifetime. They gave to the trustee the custody of the leases and the management of the estate in them for the uses specified in the -will, so that in this action the plaintiff is in our opinion the proper- party to sue for any balance due for d'oal mined, whether the coal was mined in the lifetime of Dr. Houtz and not paid for, or has been mined since.” 4. In charging: “This agreement” (theagreement of 11th July 1874) “is utterly void so far as it purports to convey ten acres of coal land in exchange for ten acres of other coal land, and such land being the separate estate of married women, it could not be conveyed without a separate acknowledgment on their part.” * *'* The law treats the conveyance of a married woman, not separately acknowledged by her before a magistrate, a judge or justice of the peace, as absolutely void. The defendant cannot refuse payment for any coal mined on the ten acres; which was to be given him in exchange for that alleged to have been paid for by him while mining on land not the plaintiff’s ; but if he mined over the line on his own land, and paid for the coal so-mined, he must be allowed a credit therefor on an* balance that may be yet due. 5. In refusing defendant’s eighth point: “There is no evidence of fraud in the procurement of the' agreement.of the 11th July 1874, to be submitted to the jury.” 6. In charging: “A fair construction of the agreement, it seems to us, must treat the Gwin line as the line of the Edmundson; and were there no evidence here as to the manner in which these signatures were obtained, it would conclusively establish the Gwin line as the line of the Edmundson.” * *\* “If the case is with the defendant in this particular, i. e., if the agreement was not obtained by fraud, then you need not inquire further as to the location of the line on the ground. The -Gwin -line must be taken as the line.” - 7. In admitting evidence under the following offer: Plaintiff proposes to show that the witness was -the acting representative>of the Houtz heirs, and that the agreement of 11th July 1874 was brought to him by Lawshe and Catiferon, the agents and superintendents of the Kittanning Coal/Companyj'with the statement and assurance that it did not change or affect the Jines of the Houtz lands beyond the exchange of the ten acres therein provided for, that before any of the parties signed it the witness had the last sentence added to the agreement to express more clearly, as he thought, the declared purpose and effect of the paper, and that upon the assurance so made the paper was .signed ; this offer for the purpose of contradicting J. ÍJ. Cameron, witness for defendant, and also for the purpose of defining the subject-matter of the paper and explaining the ambiguity appearing on- its face. 8. In charging: “But if Cameron and Lawshe, or either of them, had procured the Gwin survey, had knowledge of the course and distance of the line north forty-six degrees twenty-six minutes east three hundred and twelve perches, and the others had not such knowledge, and if they or either of them represented to Brisbin that this line was the line as laid down on the Houtz map, and thus by a false representation on which Brisbin relied, not knowing the true bearing of the line, tricked him and the others into signing the agreement, and then attached to it a map which showed the true location of the line to the land, the plaintiff would not be bound by the line in the agreement.” 9. In admitting the evidence of H. «7. McAteer, under the following offer:— Plaintiff proposes to show by the witness, that Mr. Brisbin communicated to him, prior to the signing of this paper (the compromise agreement of July 1874), what Mr. Cameron and Lawshe had said, as to the purpose of the paper, and what was to be accomplished, and upon the faith of such communication, the witness and his wife signed the paper. In admitting evidence under the following offer: Plaintiff proposes to prove by the witness that she is the wife of H. J. McAteer, and daughter of Dr. D. Houtz, deceased; that she signed the paper of July 12th 1874; that it was not read to her, nor its contents made known, and that she has no knowledge whatever of the lines of the laird therein referred to (and that there was no map to the paper when she signed it). 11. In charging: “ If this agreement was signed for the purpose of settling a disputed boundary, with the map attached or present when it was signed, it binds these pai’ties, and although the agreement on its face does not necessarily disclose the exact location of the line, the agreement and the map put it beyond question.” 13. In refusing defendant’s" third point:— “ The Kittanning Coal Company having entered into the possession of the coal leased to H. H. Shillingford, w'ho was president of said company, and they having made the improvements and opened the mines as lessees of Dr. Houtz, and all the rent which was paid having been paid by said company, and settlements and compromises having been made by them as tenants of the plaintiff, facts inconsistent with the continuance of the defendant’s tenancy, there can be no recovery against defendant for non-payment of rent by the Kittanning Coal Company.” 15. In charging: “ The plaintiff claims that he has, by the most indubitable evidence, established the fact that from the time the mines were opened, in February 1871, down .to the commencement of this suit, there was practised upon Dr. Houtz in his lifetime, and upon him since his death, a fraud which infected the returns or nearly all the returns made. * * * If the case is with the plaintiff in this particular, if he has proven such fraud as warrants you in going behind the monthly returns, then you would ascertain from the evidence what quantity of coal was mined and shipped under the lease from the land leased.”'
95 Pa. 35Williamsport Water Co. v. Lycoming Gas & Water Co. (1880)
Appeal from the decree of the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 174. In Equity. Bill in equity filed by the Williamsport Water Company against the Lycoming Gas and. Water Company. The bill of the plaintiff set forth that said company was incorporated by Act of Assembly approved April 18th 1853, for the purpose of introducing water into the borough of Williamsport; and that the defendant was infringing the chartered rights of the plaintiff by laying pipes with the view of furnishing water within the limits of Williamsport; and praying that she may be restrained from so doing, &c. Defendant answered, denying any infringement of the chartered rights of the'plaintiff, and alleging that she was a corporation duly incorporated by Act of Assembly approved March 24th 3 865; and all the acts done by her, complained of by the plaintiff’s bill, and all she intends to do, are within the powers granted to her by said act of incorporation; and that she has done nothing, and intends to do nothing, in violation of the chartered rights of the plaintiff. The case was referred to a master, Henry W. Watson, Esq., who found the facts substantially as follows: That the plaintiff was organized on the 30th day of August 1856, and in pursuance of the provisions of its charter proceeded to purchase real estate, erect dams, construct reservoirs and lay water pipes in the borough of Williamsport; and that it was authorized by its charter to introduce water into said borough and lay -the necessary pipes therefor; that at and prior to the time of the incorporation of said company, the western line of the borough of Williamsport was Locust street; that by a borough ordinance of March 24th 1862, the borough was extended in a westerly direction to the Grier line, or Susquehanna street, and along said line to the south side of West Fourth street; thence easterly along the south side of West Fourth street to Park street; thence south along Park street, on line of Reading, Fisher & Co.’s land, to the Susquehanna river. No streets were at that time laid out west of said line ; that prior to March 24th 1865, the Williamsport AVater Company laid water pipes west of Locust street (the western boundary of the borough when the company was incorporated) on several streets to a distance on each street of about seven hundred feet; that the Lycoming Gas and Water Company, was incorporated by an Act of Assembly approved the 24th day of March 1865. The seventh section of said act provides as follows: “ Section 7. That the said company shall have power to provide, erect and maintain all works and machinery, or engines, necessary( or proper for making, raising and introducing, for the purpose of* supplying the inhabitants residing within the limits of the plot or territory here described, and parts adjacent thereto, a sufficient supply of gas and pure water; the boundaries of the plot or territory described as follows: On the east by the western boundary line of the borough of Williamsport as established prior to the year 1853, on the north by a line formed by extending the northern boundary line of said borough west to Lycoming creek, in a southerly direction, the junction of the said creek with the West Branch of Susquehanna river; thence east along the'bank of said river to the western boundary line of the borough of Williamsport aforesaid, with privilege of introducing the gas and water to supply the inhabitants of the village of Newberry,'Jaysburg and vicinity ; and the company are hereby authorized and empowered to enter upon, take and hold for the purposes of this act, to them and their successors and'assigns, in fee simple, or for any less estate, so much of the waters of any stream within three miles of the mouth of Lycoming creek, or any lands, tenements, or hereditaments to which the water of said stream may be appurtenant, or any real or personal estate, or property which shall be necessary to them, in the prosecution of their works: Provided, The same shall not exceed twenty-five acres, making compensation for the same' as hereinafter provided: Provided further, That the said company shall not extend their pipes into those parts of streets in said borpugh in which the Williamsport Gas or Water Company hare laid their pipes previously to the passage of this bill.” ” - - The master found that the said Lycoming Gas and Water Company have laid pipes east of the western line of the borough of Williamsport, as established prior to 1853, and have been and are now supplying the inhabitants with water; that the Williamsport Water Company have not extended their pipes into all of the streets of the borough of Williamsport as it existed in 1853; that a number of the citizens, in order to obtain water by an extension of pipes, were compelled to subscribe for stock of the company and guarantee to the company an income of from 6 to 10 per cent, on the cost of said extension or extensions; that the Lycoming Gas and Water Company furnished water to residents who had previously applied to the Williamsport Water Company, but had not succeeded in procuring water from that company. Upon this finding of the facts the master came to the legal conclusion “ that the Williamsport Water Company had the exclusive right to lay pipes and supply water to- the residents of the territory east of the western boundary of the borough as it existed prior to 1853, until the legislature shall have given to some other company the right to lay pipes and supply water in the same territory. “ That the Lycoming Gas and Water'Company are not authorized by their charter to lay pipes or supply water to the residents of that part of the city embraced in the borough limits prior to 1853, nor ‘ to extend their pipes into those parts of streets in said borough (meaning the borough as it existed in March 1865) in which the Williamsport Gas or Water Company have laid their pipes previously to the passage of the bill.’ The words ‘part adjacent thereto’ are of so doubtful a meaning that the master can construe them in no other way than that they refer to residents or inhabitants of the township or townships adjacent to the territory described in the Act of March 1865. That the legislature intended by the use of these words to confer the right upon the Lycoming Gas and Water Company to lay pipes in the territory covered by the charter of the Williamsport Water Company cannot be inferred from the wording of the act; on the other hand, the intention of the legislature seems to the master to be in direct conflict with the granting of such a power. ” The master, therefore, recommended that a perpetual injunction be decreed against the said Lycoming Gas and Water Company, to restrain them from laying water pipes in or through any of the avenues, streets, lanes or alleys of the city of Williamsport east of the western line of the borough of Williamsport as established prior to the year 1853, and from extending pipes into those parts of the streets of the borough (now city) of Williamsport as constituted or bounded prior to the 24th day of March 1865, in which the Williamsport Water Company had previously laid their pipes, and from supplying with water any of the residents, &c., within said territory. •The defendants filed exceptions to the report of the master, both in regard to his findings of' fact and conclusions of law. The court, Mayer, P. J., in ruling upon the exceptions, inter alia, said : “ The principal question involved in the controversy between the plaintiff and defendant, and upon the proper determination of which the rights of the parties litigant depend, is the correct construction to be placed upon the charter of the defendant, and what powers are they authorized to exercise under the provisions of their said charter ? “This controversy grows out of the interpretation to be placed-upon the seventh section of the act of incorporation. “The defendants claim that the words ‘parts adjacent thereto’ in said section confer upon them the right to introduce water into any portion of the territory of the borough of Williamsport, except in those streets of said borough which had been previously occupied by the Williamsport Water Company in the laying of their pipes. That they are restricted by the terms of the proviso from infringing upon the rights of the plaintiffs in such streets. “ The master decided that the words ‘ parts adjacent thereto’ are of so doubtful a meaning that he construes them to refer to residents or inhabitants of the township or townships adjacent to the territory described in the Act of March 1865. He based his conclusion upon that rule of construction which declares that no corporate privileges are granted unless they are expressed in plain and unequivocal words, testifying the intention of the legislature" in a manner too plain to be misunderstood. We are not disposed to controvert this rule, as it has received the sanction of the Supreme Court of the state and has been asserted by it a number of times. But there are other rules of construction that are as well settled and as well sustained by authority. One, of these rules is that'in the construction of a statute effetet is to be given, if possible, to every clause and section of it. ‘ Statutes are to be interpreted so as to give effect to all the words therein, if such interpretation be reasonable and be neither repugnant to the provisions nor inconsistent with the objects of the statute.’ United States v. Bassell, 2 St. 389. “ Another of these rules is that in construing a statute creating a private corporation, the whole statute must be taken together and such construction given that the true intention may be effectuated. In ascertaining the meaning of the words employed in the seventh section, ‘parts adjacent thereto,’ and placing the proper construction upon them, aided by these rules of-construction, we must take into consideration what is contained in the proviso, as well as in the body of said seventh section. As was salid by Justice Woodward, in Dugan v. Bridge Company, 3 Casey 309, ‘in measuring corporate rights we are to look at all the 'terms employed in the fundamental law or compact. We can no more cut out some of them or mitigate their legal effect because they are in a proviso, than we could qualify the terms of a private agreement because found in one part of the instrument instead of another. The whole instrument is to be taken together as expressing the final intentions and purposes of the parties.’ ‘ The office of a proviso, generally, is either to except something from the enacting clause or to qualify or restrain its generality, or to exclude some possible ground in its misinterpretation of its extending to cases not intended to be brought within its purview:’ Winis v. United States, 15 Pet. 423. “In endeavoring to ascertain what the legislature meant by the use of the words ‘ parts adjacent thereto’ in the said seventh section, we must construe the whole section together, what is contained in the proviso as well as what is expressed in other parts of it. Adopting this rule of construction, we think that the true intention and meaning of the section can be determined. The borough of Williamsport, lying east of the boundary line as established prior to 1853, was just as much ‘ adjacent’ to the territory described in the charter of the Lycoming Gas and Water Company as was the township or townships which the master finds to be included under the description of ‘parts adjacent thereto,’ and that the corporate rights of the Williamsport Water Company might not be infringed upon by the rival company entering such adjacent territory, the prohibition in the proviso was inserted to protect said Williamsport Water Company in the enjoyment of their chartered rights to the extent that they had exercised them, viz. •: by the occupancy of the streets in the said borough in the laying of their pipes; and that it was the intention of the legislature to confer this right upon the Lycoming Gas and Water Company, to enter upon the territory of the Williamsport Water Company, may be inferred from the fact that the latter' company was incorporated-in 1853, was organized in 1856, and up to 1865 had not occupied all the streets in said borough, and had not supplied the residents upon said streets with water. The master was, therefore, in error in concluding as a matter of law that the Lycoming Gas and Water Company are prohibited, by their charter, from entering into the limits of that part of the city embraced in the borough limits as established prior to 1853. As we have already indicated, the master should have decided that the said company was authorized to lay their pipes in those streets of the said borough where the said Williamsport Water Company had not laid their pipes previously to March 24th 1865. “ Let an order for an injunction be prepared in accordance with this opinion and under the equity rule.” The court made the following decree : “That the Lycoming Gas and Water'Company, their officers, agents, servants and employees be, and they are hereby restrained, from laying their water pipes in or through any of the streets, lanes or alleys of the city of Williamsport east of the western line of the borough of Williamsport, as established prior to the year 1853, where the said Williamsport Water Company had laid their pipes prior to the 24th day of -March 1865, and from supplying with water any person or persons within the limits of said territory, who have been heretofore or can be hereafter supplied with water from the pipes laid by said Williamsport Water Company prior to March 24th 1865 ; and from introducing water into any pipe or pipes that may have been laid by the said defendants in any of the streets, lanes or alleys of said territory in which the Williamsport Water Company had laid their pipes prior to March 24tli 1865. “ And that the costs of this proceeding be paid by the said ‘ The Lycoming Gas and Water Company.’ ” From this decree this appeal was taken by the plaintiff, which alleged that the court erred in the foregoing decree, and that the decree was inadequate and insufficient; that they did not decree that the Williamsport Water Company had the exclusive right as against the defendants to lay pipes and supply water to the residents of the territory of the borough of Williamsport east of the western boundary of said borough as it existed prior to 1853 ; and in that they d'id not decree and enjoin, that the Lycoming Gas and Water Company were not authorized by their charter, to lay pipes or supply water to the residents of that part of the city embraced in the borough limits prior to 1853, nor to extend their pipes into said borough east of the western boundary line thereof as established prior to the year 1853, nor to extend their pipes into such parts of streets west of said boundary line as the Williamsport Water Company have laid their pipes previously to March 24th 1865.
95 Pa. 45Girard Fire & Marine Insurance v. Hebard (1880)
Error to the Court of Common Pleas of Lycoming county: Of May Term 1880, No. 133. Assumpsit by Charles Hebard, Robert M. Forsman and Dexter Smith, trading as Hebard, Forsman & Smith, for the use of Charles Hebard and Dexter Smith, trading as Hebard & Smith, against the Girard Eire and Marine Insurance Company upon a policy of insurance. The defendant pleaded non assumpsit, payment, payment with leave and set off. The facts set forth in the opinion of this court, together with the following points and portions of the charge, sufficiently state the case. The plaintiffs submitted the following points, to which are subjoined the answers of the court, Cummin, P. J.: 2. That even if such an assignment and the consent or ratification of the company thereto were necessary under the terms of the policy, it is a question of fact for the jury, under all the evidence in the cause, whether or not the company after notice of the change in the ownership of the property, waived that condition in the policy; and if they did so waive it, said change of ownership is no défence in this action. Ans. “ This point we answer in the affirmative. We think that is the law, and it is for you to decide that question.” (Sixth assignment of error.) 4. That the acts of the company in not objecting to the change of ownership, and failing to give any notice of disapproval of the same, and the marking of the policy cancelled and not making any objection in the letters given in evidence to the carrying of the risk on account of the change in the ownership, are evidences of a waiver in the conditions of the policy. Ans. “ We say that these are matters for your consideration. The point we therefore affirm. What weight' they are to have is for you to determine.” (Seventh assignment.) 5. That the failure of the company to respond to the letter of May 9th 1876, notifying them of the loss, was prejudicial to the interests of the insured, unless the policy is valid, and is a proper circumstance to be considered by the jury. Ans. “ This point, like the one preceding, is a matter for your consideration. What weight it shall have is for you to determine.” (Eighth assignment.) The defendant requested the court to charge “that upon the whole of the evidence the plaintiffs are not entitled to,recover,” which the court refused. (Eifth assignment.) In the general charge the court, inter alia, said: “ It became necessary, therefore, under the terms of this contract, that the company insurers should have notice of this change in the ownership of the property insured, that they might say whether or not they would consent to continue this policy to the benefit of the new firm. To this'end the assignment was endorsed upon the policy, and it was sent to the company. When they received this policy and had knowledge of the acts and desires of the insured, it was their duty then to act upon it, and we think under these clauses of the policy that they could, if they chose, have declared the policy forfeited and void. They could have refused to approve the assignment, and for that reason could have declared it void and forfeited. The matter was one for them to act upon. If they had approved the 'assignment it cannot be doubted that the plaintiffs would be entitled to recover. Did they disapprove of it, or did they declare .the'policy forfeited and void for any cause ? If they did, it was their duty to notify the insured of their election in this respect. This, perhaps, may be the first question that you will have to consider. Now, nothing of this kind appears to be in the endorsement upon the policy. There is no mark here of disapproval, nor is there any mark of its being declared forfeited or void. * * * Iff they have not done so, then the next question for you to consider will be whether or not they have waived their right to declare it forfeited. This is the next question which you will have to decide, and which, perhaps, is the main question in the cause, and will be probably more particularly stated by us when* we come to answer the points which have been submitted by counsel. We may here say, however, that we think the company could waive their right to declare this policy forfeited for the cause assigned. Whether they did or not waive this right will be for you to decide. “If you should find in the case thatjthe company did not disapprove of this assignment, and for that or any other reason declared the policy forfeited, and that they have by their acts or their words or their silence waived their rights in this respect, then the next matter for you to consider will be the question of cancellation.” The above portions of the charge, constituted the third and fourth assignments of error. The verdict was for the plaintiff for $2949.13, and after judgment thereon, the defendant took this writ and, inter alia, alleged that the court erred as set forth in the above assignments of error.
95 Pa. 52Jamison v. Dimock (1880)
Error to the Court of Common Pleas of Incoming county: Of May Term 1880, No. 177. Ejectment by Mary A. Jamison against Gordon Z. Dimock and Charlotte E. Dimock, his wife, to recover a lot in the city of Williamsport. Both parties to the suit claimed title from Peter Herdic. The plaintiff as follows: Deed of Peter Herdic to George P. Barber, dated November 3d 1877. Mortgage, same date, George P. Barber to Peter Herdic to secure the payment of $6000. Assignment of said mortgage by Peter Herdic to Lewis Jamison and Mary A. Jamison, January 15th 1878. Scire facias on above mortgage and judgment thereon to January Term 1879, for $6437. Levari facias to March Term 1879, and property sold to Mary A. Jamison and sheriff’s deed to her, dated March 18th 1879. The defendants claimed title by virtue of a parol agreement between the said Herdic and Mrs. Dimock in 1874, by which ITerdic agreed to sell the lot as alleged to Mrs. Dimock, and build a dwelling house thereon for her, the said lot being at the time vacant, for the sum of $6000, and possession taken by the defendants, as alleged by them, in pursuance of the contract, as soon as the house was ready for occupancy, which was about a year after making the contract, and continuous possession thereof up to the time of the trial. The other material facts will be found in the opinion of this court. At the trial the plaintiff submitted "the fallowing points, all of which the court refused. 1. That the contract of sale by parol, in order to take it out of the Statute of Frauds and Perjuries, must be accompanied by the payment of the purchase-money in whole or in part, possession taken in pursuance of the contract, and improvements made by the vendee that cannot be compensated in damages. 2. That the burden of proof is upon the defendants, and unless they have shown by indubitable proof, that the contract was made, possesssion taken and improvements made that cannot be compensated in damages in an action on the case for a breach of the parol contract, the verdict must be for the plaintiff. 3. That under all the evidence in this case the plaintiff is entitled to recover. Verdict for defendants, when plaintiff took this writ and alleged, that the court erred in refusing the abovejpoints.
95 Pa. 58Early v. Rolfe (1880)
Error to the Court of Common Pleas of Elk county: Of May Term 1880, No. 102. Scire facias sur mortgage by H. M. Rolfe against C. R. Early. Mrs. Fannie Wilmarth, wife of Frederick Wilmarth, owned certain real estate which, in October 1874, she conveyed to Early, ,the defendant, who gave her a mortgage on said property for the unpaid purchase-money. On March 26th 1878, Mrs. Wilmarth and her husband assigned the mortgage to Rolfe, the plaintiff. This suit was brought hy Rolfe to recover the balance due on the mortgage. The only subject of dispute between the parties was as to the allowance of three payments made to Mrs. Wilmarth’s husband. The defendant pleaded “set off,” “ payment with leave,” &c. At the trial, Wilmarth, the husband of the mortgagee, testified that Early had paid him $600, in three different payments, on account of interest due on the mortgage. When asked whether he had authority from his wife to receive this money, he answered, “Yes, sir; to use in the family;” but afterwards, on cross-examination, said, “ I had no special authority, only being her husband, and getting it for her benefit as well as mine. She knew that I got these payments because I told her.” He further testified that the money thus received was used “ for family expenses.” The third point of the defendant, with the answer of the court, McDermitt, P. J., of the 85th Judicial District holding a special court, was as follows: That, even if the mortgage belonged to Mrs. Wilmarth at the time of the alleged payments to Fred. Wilmarth, a payment to him without her authority would not operate to discharge the mortgage debt. Ans. “ There being no evidence of any previous authority having been conferred by Mrs. Wilmarth on her husband, to receive payment, in whole or in part, of the mortgage in suit from the defendant, nor evidence of subsequent ratification by her of his acts in receipting for what he did receive, beyond her mere subsequent knowledge of the fact, the payments so made by the defendant, do not bind her, nor her assignee, the plaintiff. So explained, the point is affirmed.” Yerdict for plaintiff, when defendant took this writ and alleged, inter alia, that the court erred in the answer to the above point.
95 Pa. 62Williamsport Gas Co. v. Pinkerton (1880)
145. Case stated, wherein John J. Pinkerton, was plaintiff, and the Williamsport Gas Company, defendant. • The case as stated, was, in substance, as follows : In 1868 the Williamsport Gas Company issued bonds to the amount of $30,000, payable to bearer on the 1st of June 1878, at the banking house of Kirk, MacVeagh & Co., West Chester, Pa.
95 Pa. 65Calvert v. Good (1880)
1. O. was surety for H. on a joint and several note in favor of G. In a suit thereon by G. against O. the latter defended on the ground that the time of payment had been extended by a binding agreement between G. and H., without tlie consent of 0., and that the latter was thereby discharged. It appeared that there was an arrangement between G.. and H. by which H. agreed to pay to G. interest at the rate of ten per cent, per annum, when G. should call on him from time to time, the whole interest to be paid before the maturity of the note or the time to which it was extended. Whether this agreement was mad.e before or after the maturity of the note was contested : Held, that the court properly instructed the jury that if they believed from the evidence that at or about the time the note fell due, G. agreed with H. that the time of payment would be extended for one year, in consideration of the payment of the interest in advance, as the same should be called for by G., and that’this extension was made without the consent of C., such agreement would discharge C. as surety. 2. Qucere. Where there was evidence of actual payment of interest in advance what would be the effect of such payment without an agreement, whether it would be a partial payment on account, whether usurious or otherwise, or would necessarily imply an agreement to extend the time. 3. A mere agreement to give time in consideration of the payment of usury after the maturity of the note would not be a valid consideration, such as would discharge the surety. Hartman v. Danner, 24 P. P. Smith 36, followed. 4. The court instructed the jury that if they “believe by the arrangement spoken of by II., G. reserved the right to proceed to collect the note from II. and C., if notified to do so by 0., it would not be such an agreement as would in law discharge the surety, even if the payment in advance was a valid consideration.” Of this fact there was no evidence: Held, that the case should be reversed for this reason ; that it is error to leave to the jury a fact of which there is no evidence. '
95 Pa. 69Kimble v. Smith (1880)
148. At the trial before Elwell, P. J., the plaintiff gave in evidence the record of a judgment obtained by Kostenbader’s administrators against John B. Kimble, on February 25th 1874, for $5.33, upon a claim originally for $15.40, arising in 1870, and an execution thereunder, by virtue of which the premises were taken in execution as the property of the said John B. Kimble, and sold at sheriff’s sale to Daniel Smith, the plaintiff, for $185.
95 Pa. 72Bear Valley Coal Co. v. Dewart (1880)
1. An abandoned title is not transferred to an adverse claimant, or person who first seizes the land, but it falls back to the state, and, by its extinction, sometimes makes a younger and conflicting title good. The doctrine of abandonment does not apply to a perfect title, but only to imperfect titles. In favor of a junior warrant or settlement right, after long lapse of time, an imperfect title by warrant and survey may be presumed to be abandoned. But such presumption cannot be made of a perfect title ; that is never reinvested in the state on such principle. After the land has been located and patented, it will not fall back because it is derelict, nor for the owner’s neglect to pay the taxes. 2. A stranger will not acquire title by payment of taxes on unoccupied land. Actual possession is necessary to acquire title under the Statute of Limitations. The presumption arising from the owner’s neglect to exercise every act of ownership, often called abandonment of his waiver of irregularities in sales of land for taxes, or on judicial process, is a very different thing from the statutory title by adver-se and continuous possession. In case of conflicting titles the older and better will not be lost by reason of the Statute of Limitations, nor presumption of waiver, upon the mere payment of taxes by the holder of the younger title. 3. The general rule is that the plaintiff in ejectment must recover on the strength of his own title, and when an outstanding title, better than his own, is shown, he must fail to recover. 4. Foust v. Boss, 1 "VV. & S. 501 ; Hunter v. Cochran, 3 Barr 105 ; Biland o. Eckert, 11 Harris 215, and McBarrow et al. v. Gilbert et al., 6 Wright 268, reviewed and distinguished.
95 Pa. 78Appeal of Johnson (1880)
In proceedings in equity by a bridge company to restrain the erection and maintenance of a ferry the master found that the grant of the ferry franchises to “ M., his heirs and assigns,” was a valid and existing grant, so long as they continued to exercise it, and that neither its nonuser nor subsequent Acts of Assembly could destroy the grant. It was held that no one could use the ferry franchises unless by purchase or assignment from M. or his heirs. It appeared that defendants erected the ferry with the consent of the heirs, some of whom were associated with defendants in the operation of the ferry: Held, that it was of no consequence that the heirs of M. had not parted with all their rights in the ferry franchises; that it was of no concern to plaintiffs whether defendants had a conveyance of the franchises or only a license to use them, as either would be a sufficient protection.
95 Pa. 85Township of Conyngham v. Walter (1880)
95 Pa. 89Lycoming Fire Insurance v. Schwenk (1880)
135. Covenant by William Schwenk and Jacob Geise, trading as William Schwenk & Co., for the use of Henry Saylor against the Lycoming Fire Insurance Company, upon a policy of insurance upon a coal-breaker and machinery near Mount Carmel, in Northumberland county. The defendant pleaded:— 1. That the property alleged in thé declaration to have been burned and destroyed by fire “ was burnt and destroyed by rioters in the perpetration of a riot and not in any other manner2.
95 Pa. 97County of Luzerne v. Trimmer (1880)
Error to the Court of Common Pleas of Columbia county: Of May Term 1880, No. 119. This action was originally brought in Luzerne county, .and the venire was afterwards changed to Columbia county. It was a case stated, in substance, as follows: S. W. Trimmer was duly elected at the general election in the fall of 1873, and commissioned prothonotary of the county of Luzerne, to hold office until the first Monday of January 1877, and until his successor was duly qualified, and held the office from the 13th March 1875, to the 3d of January 1877. A. P. Barber was elected to the office of prothonotary of Luzerne county to succeed the said Trimmer, and was commissioned by the governor on the 7th of December 1876, to hold for three years from the first Monday in January 1877, and until his successor was duly qualified. On the 6th of December 1876, a petition was duly filed contesting the election of said Barber to said office, upon which issue was joined, and which was finally determined by the Supreme Court on the 25th of March 1878, having been dismissed by the Court of Common Pleas on the 30th of June 1877. On the 3d of January 1877, at the instance of Barber, a writ of quo warranto was issued by the Court of Common Pleas of Luzerne county against Trimmer, requiring him to show by what warrant he held the office of prothonotary, pending the contest aforesaid, upon which, on the 3d of January 1877, the said court entered judgment of ouster against said Trimmer, whereupon he was duly removed from said office, and Barber entered into possession, which judgment of ouster was reversed by the Supreme Court on the 25th of March 1878, and it was adjudged that the said Trimmer had the right to hold the said office of prothonotary, pending the contest of the election. (See In re Contested Election of Barber, 5 Norris 392.) Barber claiming to act by virtue of the said commission and the judgment of the court, and the Act of 31st March 1876, said county of Luzerne being a county of over 150,000 inhabitants, collected and paid into the county treasury the sum of $26,569.12, from the 3d of January 1877, to the 25th of March 1878, exclusive of state taxes. The said county paid o.ut of the treasury for the expenses of said office, clerk hire and salary of thé prothonotary, by virtue of said act, the sum of $15,800.27, between the dates aforesaid. Demand was duly made on the county of Luzerne for the said money before the commencement of suit, viz.: on the 12th of April 1878. The question for the determination of the court was, whether Trimmer was entitled to the fees of the prothonotary’s office of Luzerne county, between the 3d of January 1877 and the 25th of March 1878, and to recover the same as collected by said Barber, and paid over to the county. If the court should be of opinion that Trimmer was entitled to the fees of the office, or any portion thereof, during the time aforesaid, then judgment to be entered in favor of the plaintiff; otherwise judgment to be entered for the county of Luzerne. The court held that Trimmer was entitled, under the law, to fifty per cent, of that portion of the fees collected by Barber and paid into the county treasury, over and above the amount paid into the treasury for current expenses of the office, between January 3d 1877 and March 25th 1878 (the date of the final decree of the Supreme Court), with interest, and accordingly entered judgment in his favor for $5956.50, with costs. The county took this writ, and alleged that the court erred in the entry of judgment, and in holding that the plaintiff was entitled to any fees after June 30th 1877, when the contested election case was determined by the Common Pleas.
95 Pa. 101Gass v. Citizens' Building & Loan Ass'n (1880)
Error to the Court of Common Pleas of Northumberland county: Of May Term 1880, No. 144. Feigned issue, wherein Martin Gass, was plaintiff, and the Citizens’ Building and Loan Association of Centraba, was defendant, to try whether a certain judgment of the association against Gass had been' paid or satisfied, or whether he had been released or discharged from the payment of the same. The issue was framed upon the following facts : In February 1873 J. J. Hoagland applied to the association defendant for ten loans of $200 each, amounting in the aggregate to $2000, when the board of directors decided to grant him four loans, or $800 thereof, upon the security of his own property in Columbia county, but inasmuch as there was at that time a prior lien in favor of the Centraba Mutual Saving Fund Association against Hoagland’s property, the. association requested him to give them additional security, and he then offered them his father-in-law, Martin Gass, as surety, and the association, after an examination of his property, accepted him, and a bond and mortgage were executed, with Hoagland as principal and Gass as surety thereon. Judgment was afterwards entered on the bond by virtue of a warrant of attorney contained therein. On the 2lst of November 1877, Gass presented a petition to the court, asking that said judgment should be stricken off or opened, and he let into a defence, and the court, after hearing, opened the judgment and made the rule absolute as to Gass. At the trial Gass offered to show that at the time of the execution of the bond there was a parol agreement to the following effect: That when he agreed to become the surety of Hoagland the latter informed him that the association agreed to hold him liable as surety only until the lien of the Centraba Mutual Saving Fund Association had expired, or when the “old fund,” as it was called, ran out. To sustain this alleged agreement, he gave in evidence a certified copy of the record of the Court of Common Pleas of Columbia county, whereby it appeared that the judgment of this saving fund against Hoagland, entered March 13th 1871, had not been revived, and that, therefore, its lien had expired on March 13th 1876. J. J. Hoagland, a witness called for plaintiff, on cross-examination testified: “Mr. Gass was to be released when the old fund run out; the last payment on the old fund run out in January 1874; it has not run out; they are trying to make an assessment now; I am secretary of the company now ; the old association had run out in January 1874, as we supposed; there are debts now standing that we are trying to collect,- and there is some property to be sold; the old association has issued notices to members „to pay in one or two payments to pay off the shares ; our secretary made up a statement, and there is about $1400 to pay yet, as near as we can get at it; when I speak of the old association running out, I mean that it had started to run ten years, and that we found it was going to run out sooner, and that was about 1874; * * * I would not consider the old association finally settled until all the judgments and property had been sold and collected in; * * * I told Gass they agreed to release him when the old fhnd run out; all the information Gass had about this matter he received from me; I presume that this last loan was made on the strength of Gass going bail.” J. P. Hoagland, another witness called for plaintiff, testified: “ I was secretary of the association at the time the loan was made to my father, J. J. Hoagland; I think there were ten shares loaned to him, $2000. Martin Gass was offered as bail on six shares, or $1200 of the $2000; the board of directors decided to give J. J. Hoagland a loan of $800 upon his own security, and for the balance, $1200 (six shares), he was to give Martin Gass as security; that was the only thing that was embodied in the motion, though there was a general conversation taking place in the room that if the old saving fund should expire he would be released; Martin Gass was to be released; that was not embodied in the regular motion for the loan; that was the conversation through the room by the board of directors — directors of the Citizens’ Building and Loan Association; the old fund was called, I believe, the Centraba Mutual Saving Fund Association, * * * The board of directors did not authorize me to inform Mr. Gass on the subject of release at any time; I had no authority whatever from the board to go to him; I went at the request of their attorney, who was called out of town; I did not communicate to the other members of the board of directors at a meeting what my father had told me relative to the conversation he had with Mr. Gass ; I don’t think my father was a member of the board at the time of this conversation relative, to the release; Mr. Dyke is all I can recollect of the members who talked about this question of release; it was talked at a meeting of the board; the board was in session; J. J. Hoagland was not present at the time.” Gass, the plaintiff testified: “ J. P. Hoagland brought the bond and mortgage to me; I had no interest in them ; I got no portion of the proceeds of the loan; I was asked to execute the bond as bail for J. J. Hoagland; J. P. Hoagland came there for me to sign that bond and mortgage; I understood him .to say that the board (some of them) had sent him; he told me he ‘was secretary of the association’; I asked him whether the understanding was that I was to be released when the loan on the old saving fund expired, and he told me ‘Yes, if the old saving fund against J. J. Hoagland expired’; and he said ‘that was the understanding by the board,’ that he ‘heard them say so.’ I told him ‘under that arrangement, that I was to be released, I would sign it; if that was the case.’ I think these were the words I used, ‘if that is the case I’ll sign it.’” The 4th and 8th points of the defendant, both of which the court affirmed, are as follows : 4. That no authority has been shown by the plaintiff to have ever been given by the defendant, either to the committee of investigation or to J. P. Hoagland, to represent to Martin Gass, that he would be released as bail of J. P. Hoagland, when the old fund ran out, or was paid, and without authority from the board of directors, such representations, if made, would not bind the defendant. 8. That by plaintiff’s own showing, any representations made by J. P. Hoagland, who took the bond and mortgage to Gass for execution, were made without authority, and could not be binding on the defendant. In the general charge the court, inter aba, said : “I will say to you as a matter of law that it does not follow that it was necessary if there was an agreement by the board of directors to release Gass upon any condition, that it should be put in writing upon the books of the corporation. But it is necessary for Gass to show you clearly and satisfactorily, that there was such action on the part of the board of directors. A mere talk without coming to any conclusion or agreement between them would amount to nothing at all. Whether there was such a conclusion and agreement or not on their part we leave you to determine from all the facts and circumstances in evidence. * * * “ If you find from all the evidence in the case that at their meeting while they were an organized board of directors they agreed with Mr. Gass that if he became bail for Mr. Hoagland, he should be released upon the conditions he stated, and that after such agreement amongst themselves it was afterwards communicated by John P. Hoagland to Mr. Gass and Mr. Gass acted upon it then it would be binding upon the association. * * “ The counsel for Mr. Gass ask us to say to you as a matter of law, that if John P. Hoagland went there with the bond and mortgage for the purpose of procuring its execution by Mr. Gass, and made the representations as stated by him to Mr. Gass, without any authority, still Mr. Gass would be released. I do not charge you that this is the law.” Verdict for defendant, and after judgment thereon plaintiff took this writ, and alleged that the court erred, inter alia, in affirming the above points and in the foregoing portions of the charge.
95 Pa. 107Clement v. Commonwealth ex rel. Mettler (1880)
1. While the Act of June 14th 1836 prohibits separate actions by differ-' ent plaintiffs on the same official bond, there is no prohibition therein against the bringing of a separate suit in the name of the. Commonwealth against each obligor in the bond. 2. Suit was brought on the official bond of a prothonotary in the individual name of the party seeking redress, instead of in the name of the Commonwealth suggesting the name of the party as the Act of Assembly prescribes, although the precipe and summons recited that the suit was on the official bond. An appeal was entered and a declaration and plea filed, and meantime the original cause of action was barred by the Statute of Limitations. The court, however, permitted the record to be amended by making the Commonwealth the party plaintiff, as directed by the act: Held, that the amendment was proper, as it introduced no now cause of action and worked no injury to the defendant.
95 Pa. 113First National Bank v. Mason (1880)
1. It is clearly against public policy to permit a bank that has received money from a depositor, credited him therewith upon its books and thereby entered into an implied contract to honor his cheek, to allege that the money deposited belongs to some one else. This may be done by an attaching creditor or by the true owner of the fund; but the bank is estopped by its own act. 2. In a suit by a depositor against a bank for the balance to his credit, the bank offered to prove that the depositor was the clerk of a firm, and that the money deposited was the money of the firm and was only deposited in the name of the depositor for the convenience of the firm, and that the depositor had so declared when he made the deposit. Also, to prove that said firm was indebted to the bank in excess of the deposit, in order that the bank might set off the indebtedness of the firm against the claim of the depositor: Meld, that the, evidence was properly rejected.
95 Pa. 118Tanner's Appeal (1880)
The ruling in Wolbach v. The Lehigh Building Association, 3 Norris 211, that a building association cannot recover from a married woman more than the sum borrowed and six per cent interest, is not to be extended to the husband who joins with the wife 'and obtains the full benefit of the loan.
95 Pa. 122Stiles's Appeal (1880)
Appeal from the Court of Common Pleas of Columbia county: Of May Term 1880, No. 123. Appeal of Jeremiah Stiles from an order of the court refusing to open a judgment against him and let him into a defence. The judgment was entered against him by the Benton Mutual Savings Fund and Loan Association on a penal bill conditioned for the payment of $200. In his petition for a rule to show cause why the judgment should not be opened, Stiles averred, inter alia, that an execution had been issued upon said judgment and a levy made upon the property of petitioner; that under said levy said association sought to collect a larger sum than is due them; that at a regular meeting of said association petitioner had bid for and taken the loan for which the judgment was entered at a premium of $24, “that being the minimum rate fixed by the association for that year, and said associatidn refusing to receive a less bid.” The petitioner further averred that he would be able to show that the plaintiff has violated its charter, exceeded the powers contained therein and was therefore only entitled to recover the sum actually loaned with six per cent, interest. That among said violations were the borrowing of money from banks, banking institutions and individuals to loan to its members at rates in excess of six per cent., the charging of interest upon said loans by said banks and their payment out of the funds of the association, the fixing of a minimum rate of premiums, the refusal to loan below said rate and the charging of excessive fines. The court, Elwell, P. J., refused to grant the rule in an opinion, saying: “ The law is too well settled to require discussion of the defendant’s right to make defence on the ground taken in this collateral proceeding. He cannot withhold payment on that ground. The affidavit does allege that the plaintiff is proceeding to collect more than is due to it. But it does not. allege payments except as before stated up to June or July 1877. By the terms of his bond more is due. If he has made payments or has been otherwise discharged it should be set forth with reasonable certainty. The defendant has the same opportunity to set up his defence as if the balance claimed had been mentioned in the prsecipe and the failure to make payments for six months had been suggested. .Rule refused.” From this decree this appeal whs taken.
95 Pa. 126Northumberland Coal Co. v. Clement (1880)
Error to the Court of. Common Pleas of Northumberland county: Of May Term 1879, No. 91. Ejectment, brought by Ira T. Clement against the Northumberland Coal Company, to recover a tract of land situate in Mount Carmel township, Northumberland county, containing about 96 acres. The trial was had 19th April 1878, before Rockefeller, P. J. It appeared in evidence that the plaintiff, Clement, is the owner of one undivided half part of a tract of land surveyed under a warrant dated June 11th 1793, granted by the Commonwealth in the name of Thomas Billington. Also that the Billington was one of eleven warrants owned by Dr. Thomas Ruston, all dated June 11th 1793, granted in the name of Daniel Reese, Charlotte Ruston, Mary Meyers, John Reynolds, Thomas Billington, Mary Ruston, Thomas Euston, Mary Euston, Jr., John Young, Joshua Bean, and Samuel Lobdill. These lands are now generally known as the Brush Valley lands. The Daniel Eeese, situate at the western end of the series, is the leading warrant, and calls for the Charlotte Euston on the east ; while the Charlotte Euston calls for the Daniel Eeese on the west. Each of these warrants, from the Eeese to the Lobdill, calls alternatively for the adjoining warrant, proceeding from west to east in the order given above. Surveys were made under the first four of these warrants on the 2d October 1793 ; the return of the Billington survey does not show upon what day it was made, though the Mary Euston, which adjoins it on the east, was surveyed on the same day, the 2d October, and the last five tracts upon the following day, the 3d October 1793. A certified copy of the returns of surveys showed that these eleven surveys had all been returned into the land office by William Gray, deputy-surveyor, on the 3d March 1794; at which time the Thomas Billington tract was said to contain 411 acres. The plaintiff contended that these surveys were made and returned as a block. The evidence showed that the Thomas Billington tract was patented the 18th October 1794, and that one equal undivided half part of the said tract became vested by sundry' mesne conveyances, in Ira T. Clement, the plaintiff. There was no dispute as to the plaintiff’s title to so much of the tract. The evidence further showed the defendant, the Northumberland Coal Company, to be the owner of a tract of land, containing 371J acres, surveyed in the warrantee name of Lewis Walker, lying directly south of the Thomas Billington tract, and also showed that the Lewis Walker warrant was one of four, granted by the Commonwealth to Ebenezer Branham, Nathaniel Brown, Lewis Walker, and William Elliott, all of which are dated the 26th November 1793, under which surveys were made on the 21st and the 22d October 1794, and returned into theland office, by William Gray, deputy-surveyor, February 23d 1795. These four tracts, now generally known as the Lefevre lands, extend along the Brush Valley lands, on the south, throughout their entire length, and the official returns of these surveys call for the Brush Valley lands upon the north. There was no dispute as to the defendant’s title to the Lewis Walker tract. The controversy arose as to the location of the line that divides the Billington tract from the Walker tract, and defines the southern limit of the former and northern limit .of the latter; the plaintiff contending that his survey, as marked upon the ground, includes the land described in this writ of ejectment, while the defendant asserted his right to extend his claim as far north as the southern line described in the official return of the Thomas Billington tract, which the Walker survey calls to adjoin- on the north, thus confining the plaintiff, by courses and distances, to the official return of b.is survey and disregarding the marks said to have been found upon the ground. Many surveyors were called, by either side, who testified that the northern lines and corners of the eleven tracts composing the Brush Valley lands are well defined by marks still existing upon the ground, made at the time of the original survey in 1793; they all agreed as to the northern line and northern corners of .the Thomas Billing-ton tract. Along their southern boundary line, these eleven surveys call for post corners in every case excepting one corner, which forms the southern limit of the division line between the Thomas Billington tract and the John Reynolds tract; these tracts call for a small maple tree as a common corner, it being the southeast corner of the Reynolds tract and the southwest corner of the Billing-ton tract. There was a conflict of evidence as to whether the position of this maple had been established by the surveyors, and the question of its true position was submitted by the learned court to the jury. No original marks were found by the surveyors in running either the southern line of the Brush Valley lands, unless it be this maple corner; nor were there any original marks upon either of the division lines between the eleven tracts except upon the line between the Reynolds tract and the Billington tract. Upon this line the surveyors found a white pine tree and a hemlock tree each marked at the date of the original survey. In regard to the maple tree, called for as a common corner by the Reynolds and the Billing ton tracts, the defendant introduced the testimony of David Rockefeller, a surveyor, who had run this division line in the year 1847. He testified th.at he found the line well marked upon the ground, corresponding with the dates of the original surveys, and that, in running from the northern corner, and making allowance for the rugged character of the land, he found at the end of the official courses and distances a small maple stump, with maple sprouts growing about it, and a maple tree lying upon the ground. The defendant asserted that this is the true location of the maple tree called for as the common corner, though the tree found by Rockefeller lying upon the ground was too much burned, and otherwise disfigured, to show whether it had ever been marked by surveyors or not. But the plaintiff’s surveyors testified, in rebuttal to this, that the maple sprouts found by Rockefeller were situated not only about eight rods short of the official distance of the division line between these two tracts, but were also about seven rods out of the official course, and that similar clumps of the maple sprouts are frequently to be met with upon the mountain in that vicinity. It appeared, from the evidence, that the land in controversy would not be included in the Thomas Billington tract, but would lie beyond it, and would extend seventy-two rods further south, if the lines of that tract were run according to the official courses and distances as they were returned by the deputy-surveyor. And it also appeared that if the southern line of the Billington tract were run as the defendant asserted it should be run, so as to make a corner at the point where Rockefeller found the maple sprouts spoken of by him, the land in dispute would be excluded. The plaintiff introduced the testimony of John Fisher, who had run the division line between the Reynolds and the Billington tracts in the year 1814, in company with Henry Donnel, the county surveyor at that time of Northumberland county. He testified that, at the southern end of this line, the southwest corner of the Billington tract, they found a stone corner and a post, situate near a swamp, at a distance of sixty or seventy rods south of the point now known as Rockefeller’s maple sprouts. Henry Donnel had been.an assistant to William Gray, the deputy-surveyor, at the time the surveys of the Brush Yalley lands were made, and he was employed by Gray in making various surveys in that part of Northumberland county. The plaintiff offered to prove by the witness, John Fisher, that Henry Donnel told him, while they were surveying the western line of the Thomas Billington tract in 1814, that the stone corner they found at the southwest of the Billington tract was where he had located that cÜffner some twenty years before; this for the purpose of showing where the original corner was, and to establish the southern line of the tract as originally located. This offer having been objected to by the defendant, was rejected by the court upon the ground that, as there was no evidence to show that Henry Donnel made the original surveys, his declarations twenty-one years after the surveys were made are not admissible. The court sealed a bill of exceptions for the plaintiff. But, in order to prove that the southern line of the eleven tracts composing the Brush Yalley lands, and consequently also the southern line- of the Billington tract, was run at the time of the original survey and marked upon the ground, far enough south of the courses and distances given in the official return to include the land now in dispute, the plaintiff had recourse to the location of other surveys in the block of eleven as well to other prior and subsequent surveys made by the same deputy-surveyor, William Gray, almost at the same time; he contended that what the surveyor did in locating these other surveys must be taken as some evidence to be submitted to the jury, and to be considered by them in determining whether the southern lines of the eleven tracts were actually located upon the ground or not. One of these surveys was made by William Gray and returned the 10th September 1793, in the warrantee name of Francis West, a few days before the Brush Yalley tracts were surveyed, as their returns show. The Francis West tract lies east and south of the Samuel Lobdill, the easternmost of the Brush Yalley tracts, and it appeared in evidence that its lines and corners were marked upon the ground. Another survey was made on the 23d February 1794, under a warrant granted in the name of Richard Martin, and dated January '22d 1794; it appeared that its northern, eastern and southern lines were marked upon the ground. The Martin survey calls for the Samuel Lobdill survey on the west. The plaintiff contended that the Lobdill survey was one of a block of surveys, that its southern line was actually run. upon the ground a number of rods south of its official courses and distances, and that if he proved this, by means of these other surveys, he should have a starting point that must control the location of the whole block. There is a post by a pine tree at the southwest corner of the Francis West survey called for in the official return, and this same post by a pine is called for also as the southeast corner of the Richard Martin survey. From this corner the official course of the Martin survey is north 89f degrees west, 309 perches, and the surveyors all testified that they found upon this line a pitch pine tree counting to 1794, that was marked as a line tree, and establishes the southern line of the Martin survey. The plaintiff extended this line, in its official course, the official distance, to tfye point where it would intersect the western line drawn from the northwest corner of the Richard Martin survey, and he asserted that this point must establish the southwest corner of the Martin survey; and, as the Richard Martin calls for the Samuel Lobdill survey on the west, the plaintiff contended that this is some evidence that the Samuel Lobdill survey was located at that place by the surveyor in 1793. It appeared that the eastern line of the Richard Martin survey, as marked upon the ground, is longer than its official distance, and consequently its western line must also be lengthened if drawn to intersect the southern line running west from the post by a pine corner. And it appeared also that, if the southern line of the eleven Brush Valley tracts were run upon the ground, starting from the point thus obtained as the southeast corner of the Samuel Lobdill survey, and following .its courses and distances, as the plaintiff contended this line was run in 1793, the land in dispute would be included in the Thomas Billington survey. There is still another survey, lying south of the Francis West, the Richard Martin and the Samuel Lobdill surveys, which was made on the 21st October 1794, under a warrant granted in the name of Ebenezer Branham, dated the 26th November 1793, referred to above as one of the Lefevre tracts ; it calls for a post by a pine in its northern line, and this the plaintiff alleges to be the same corner that is called for by the Francis West and the Richard Martin surveys as their common corner, and that the surveyor adopted that post by a pine corner in locating the Ebenezer Branham survey; and also that he adopted the line of the Richard Martin survey as marked upon the ground a few months before. The Ebenezer Branham survey calls for the Richard Martin on the north, and it calls also for the Samuel Lobdill. The plaintiff contended, therefore, that if the Branham survey were established either by marks made by the surveyors upon the ground, or by the monuments called for by it, its call for the Samuel Lobdill would be some evidence that that survey was located upon the ground. The defendant asserted that the southern line of the Brush Yalley tracts was never run and marked upon the ground by the deputy-surveyor in making the original surveys, and all the surveyors called for the defence testified that there are no original marks upon it corresponding to the dates of the surveys, although they ran for a distance of seven miles through timber old enough to have been marked at the time for line trees and corners. The plaintiff introduced, in this connection, the testimony of Abraham Shipman, who, upon being asked, under objection and exception, where, in his opinion as a surveyor, the southern line of the eleven surveys of October 1793 was located by the deputy-suryeyor, testified that the best authority he could find for its location was to begin at the post at the southeast corner of the Martin survey and run westward, following the courses and distances, to the pine line-tree at the south of the Martin, that being exactly in the official course; also, that he could not locate the southern line of the eleven tracts, according to their official courses and distances, without ignoring this pine tree, and that if the southern line of the eleven tracts were run by the official courses and distances from the post by a pine corner and by the pine line-tree at the south of the Martin survey, the distance of the south line from the north line of the eleven tracts would be greater than that given in the official return of these surveys. This witness also testified, on behalf of the plaintiff, under objection and.exception, that he found that the lines in William Gray’s surveys generally overrun the official distances, where there are lines of mountain surveys and run from one mountain to another, as in this case they do. This was offered as some evidence of the original location of the line between the Brush Yalley lands and the Lefevre lands. ! The court submitted to the jury the questions whether the eleven tracts composing the Brush Yalley lands were surveyed in a block; also, whether the place where the maple stump and maple sprouts were found is the original location of the common corner between the John Reynolds survey and the Thomas Billington survey, and whether the southern line of the Thomas Billington survey was run upon the ground or not, and where it was run, if run at all. In regard to locating the southern line of the Brush Yalley lands by means of the Martin and the West surveys, the court charged the jury, inter alia : “ But what the surveyor did in locating these two surveys, the Richard Martin and the Francis West, is submitted to you to be considered by you, with all the other evidence in the case, in determining the question whether the southern lines of the eleven tracts were actually run upon the ground or not; and, if so, where they were run, and I will repeat, that nothing that was done by him in the location of these two surveys, the Martin and the West, is to have, or can have, the effect of extending the Lobdill survey, but .is only submitted to you as some evidence of what he did upon the ground in 1T93 in locating the other eleven tracts.” Verdict for the plaintiff and judgment thereon. The defendant then took this writ, and filed nine assignments of error, among which were the charge of the court as stated above, and the following: The court below erred, 1. In receiving the evidence offered by the plaintiff below, as follows : “ Plaintiff’s counsel propose to ask the witness, Judge Shipman, where, in his opinion as a surveyor, the southern, line of the eleven surveys of October 1793, was located by the deputy-surveyor ?” 2. In receiving the evidence offered, as follows: “ Plaintiff proposes to show by the witness, Abraham Shipman, what the excess in lines in William Gray’s surveys, in the neighborhood of these blocks, has been found to be.”
95 Pa. 139Philadelphia & Erie Railroad v. Cake (1880)
1. Where viewers are appointed to assess damages for the construction of.a railroad and the works connected therewith, it is a fatal omission for them not to state in their report that they made any just allowance for the advantage which may have resulted, or may seem likely to result, to the landowner, or that they made a fair and just comparison of the advantages and disadvantages. 2. Where the damages are grossly excessive the court below may set aside the report of the viewers.
95 Pa. 145Brice's Appeal (1880)
1. Where one who is a stranger to an obligation pays the debt in whole or in part, in the absence of evidence to the contrary, he becomes by implication the purchaser of the debt to the extent of his payment. 2. Where a debt is secured and a stranger Voluntarily pays the same, it is prima facie a purchase of the debt and the accompanying security, and is determined by the manifest intentioü and understanding of the parties at the time. 3. F. becoming in default on a bond secured by a mortgage given for his indebtedness, B. voluntarily paid several instalments of interest and a portion of the principal, it being verbally understood that he was to be reimbursed out of the mortgage, F. afterwards made an assignment to B. for the benefit of creditors, and a scire facias having issued on the mortgage, a judgment was recovered for the full amount of principal and interest from the time when F. first defaulted. B., as assignee, paid to the mortgagee the balance actually due to him, and in his account as assignee credited himself with the full amount of the judgment and costs. Gr., a judgment-creditor, ■ excepted to that portion which B. had voluntarily paid before the assignment. Held, that evidence of the verbal understanding was sufficient proof of the purchase of the mortgage by B., to the extent of his payments, and no written transfer was necessary to create in him said interest therein. There is no reason why a partial interest could not be thus acquired by a partial payment, in the same manner as an entire interest by an entire payment. 4. The fund arising from the sale of real estate by the assignee amounted to 816,535. Held, that in the absence of any especial trouble, two and one-half per eent. commissions were properly allowed.
95 Pa. 152Creveling v. Wood & Leman (1880)
O., a manufacturer of railroad and bar iron, wrote to W. & L.: “ In reply to your application to be appointed, selling agent for the Glendower Iron Works, I will agree to appoint you my selling agent for the sale of my railroad iron, merchant bar and muck bar, for New York and eastern markets, ju'ovided you will agree to exert yourselves to keep the mill employed, and give me the preference and refusal of all orders that may come to you. Ini compensation for such service I will agree to allow you a commission, on all sales of railroad.iron and muck bar in your district, of one and one-half per cent. (1-jj, out of this percentage you to pay all extra commissions to other brokers.” On'the same day W. & L. wrote on the face of thi& letter, “ Terms and conditions of this agreement accepted.” W. & L. negotiated a sale of 4500 tons of rails to a railroad company, but only 646 tons were delivered, as the company through its embarrassments was unable to pay for moro. W. & L. claimed to recover commissions on the whole 4500 tons, and in a suit therefor the court below instructed the jury that the right of the plaintiffs to compensation did not depend upon the quantity of railroad iron delivered, but upon the amount which was sold through the agency of the plaintiffs; that if the latter brought the defendant and the purchaser together, and “ there was an act of sale or purchase passing from one to the other, the one agreeing to do and the other accepting, this constitutes a sale so far as the agent employed is concerned, who when he has gained' the mutual assent of the minds of the person who desires to purchase and of him who desires to sell, has then performed what he agrees to perform, and has earned his percentage.” Held, that this was error; that plaintiffs wore not acting in the capacity of brokers of the defendant, but as agents to sell under a special agreement, and that the sales contemplated in said agreement were actual sales in a commercial sense and not more contracts to sell.
95 Pa. 158Books v. Borough of Danville (1880)
Error to the Court of Common Pleas of Columbia county: Of May Term 1880, No. 54. Case by Curtis S. Books, administrator of Charlotte Books, deceased, against the borough of Danville, to recover damages for the death of his wife, the said Charlotte Books, alleged to have been caused by the negligence of the defendant in allowing an abutment on a bridge on one of its public streets to be unguarded. On the evening of the 27th of October 1878, which was very dark, the wife of the plaintiff, in returning from church to her home, missed the bridge and fell from the top of the unguarded part of the abutment into the canal below, and was drowned. The plaintiff took out letters of administration, and brought this suit in the Common Pleas of Montour county, to recover, as her administrator and for her estate, damages for the injury suffered by her by reason of the negligence of the defendant. His action was founded upon the twenty-first section of the third article of the Constitution of 1878, which provides, “ that no Act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for. injuries to persons or property; and, in case of death from such injuries, the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted.” The venue was changed to Columbia county. At the trial, and after the plaintiff had closed his evidence in chief, the counsel for the defendant moved the court to order a compulsory nonsuit. It was not, however, contended that the plaintiff had not made out a prima facie case, if’his suit had been brought in his own name, as husband of the deceased, under the provisions of the Act of 26th of April 1855, Pamph. L. 809, but that it appearing by his evidence that the deceased was his wife, he had proved too much, and had shown that he had no cause of action as administrator of the deceased. The court, Elwell, P. J., granted the nonsuit, and afterwards refused to take it off, in an opinion, saying: “ The Acts of the 15th April 1851, and of the 26th April 1855, confer new rights unknown to the common law. For injuries by unlawful violence or negligence, causing death, the former act gave a right of action to the widow of the deceased, and in case there be no widow, then to the personal representatives. The Act of 1855 changed the law, so far as regards the personal representatives, and conferred the right of recovery only upon parents for the loss of children, and upon children for the loss of parents, and reciprocally upon husband and wife. The right of action was given by the Act of 1851, and the Act of 1855 defines who may sue. The damages are given, not to the estate of the deceased, but in express terms to specially enumerated relatives, as compensation for the pecuniary loss which they sustain by the death. “ Conceding this to be the correct construction of the Acts of Assembly, it is contended that the right of action is extended to personal representatives of the deceased by the twenty-first section of art. iii. of the Constitution of 1873. That section provides that in the case of ‘death from injuries, the right of action-shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.’ Since the adoption of the Constitution, no law has been passed upon this subject, for the reason, no doubt, that the legislature was satisfied with the law already in force. “ The Act of 1855, which gave a right of action to the relatives named, was continued in full force by the second section of the schedule to the Constitution. It provides that ‘all laws in force in the Commonwealth at the time of the adoption of this Constitution, not inconsistent therewith, and all rights, actions, prosecutions and contracts shall continue as if this Constitution had not been adopted.’ “ The provisions in the Constitution that the right of action shall survive, and that of the Act of 1855, that the relatives named shall have that right, are not inconsistent. The constitutional provision was for the purpose of preventing the passage of any laws by which the common law would be restored, and all right of action taken away. It declared that the right of action shall survive, but submitted to the law to say to whom. Ry continuing the former law in force, it, in effect, declared that no person but the husband, as such, shall maintain an action for injuries by negligence causing the death of his wife. As administrator he has no right of action. The nonsuit was, therefore, properly ordered. Motion to strike it off overruled.” . The plaintiff then took this writ, and assigned this action of the court for error.
95 Pa. 167Arthurs v. King (1882)
Error to the Court of Common Pleas of Clearfield countyOf May Term 1879, No. 8. Ejectment by Richard Arthurs against Andrew King and Sidney Fuller to recover about ninety acres of land in Brady township, Clearfield county, Pennsylvania, being the northeast corner of tract No. 110, warranted and surveyed in the name of Christian Lower. (See report of this case on former writ of error in 3 Norris 525.— Rep.) These ninety acres are the northeast corner of a tract of land warranted and surveyed to Christian Lower as No. 110, and returned as three hundred and seventy acres. In 1806 a patent was granted by the Commonwealth for the said tract to Elizabeth Holstein and Magdalena Ley. For many years it appeared assessed in the unseated list of lands in Clearfield county to M. Ley’s heirs. At the trial, before Orvis, A. L. J., it was admitted that the taxes on tract 110 were regularly paid until 1850, and the title thereto regularly vested in Henry Zimmerman, of Schuylkill county, who died on May 18th 1857, leaving a will directing his executor to sell his real estate. Arthurs, the plaintiff, claimed the land by virtue of a purchase from Zimmerman’s executor, in" June 1860. And also, under two tax sales, one made in August 1858 to Richard Shaw, and the other in June 1862 to himself. Each sale was made for taxes of the two preceding years. The defence set up was first, a prior sale made in 1852-, by parol from Henry Zimmerman to David P. Boyer, which title having been transferred from Boyer to Rouse & Co., and to one Bascom, and the deed having been executed to Bascom by Zimmerman in February 1854 ; and that Arthurs at or before his purchase having received notice, or what legally amounted to notice of this title, did not, by his purchase from Kitzmiller, the executor, obtain such a title as would be good against Bascom. Second, that the two tax titles were invalid because the land was seated. It was alleged to be seated in two ways: first, by reason of a small improvement, called the Reisinger improvement, along the southern line of tract No. 110; and secondly, on the ground that a tract of about forty-two acres, called the Overdorf tract, which included an old improvement of about five or six acres with a log house thereon, constituted, with No. 110, but one tract, and that the improvement on the Overdorf part rendered the whole seated. They do not join or touch each other, except at a single corner. Boyer put up a steam saw-mill and house on the east end of the Overdorf piece, in 1852. The foregoing facts, together with the assignments of error set forth below, sufficiently state the case and show the questions raised and passed upon by this court. The verdict was for defendants, and after judgment plaintiff took this writ and alleged that the court erred, inter alia, as set forth in the following assignments of error: 3. The court erred in the general charge, in saying:— “ If you find from the evidence, that in 1852, when Dr. Boyer purchased both of these tracts, he united them for the purpose of a lumbering establishment; that he bought them for the purpose of using them together, that he did so use them as one tract, making no distinction between them, and afterwards sold them as one tract; that the purchasers, D. B. Rouse & Co., used them as one tract, that they were returned for assessment in 1856, in the seated list as one tract, containing 500 acres, although originally two tracts, yet this would make them one for the purposes of assessment and taxation. The assessors subsequently would have no right to assess the Christian Lower separate from the Overdorf without the knowledge and consent of the owner; and if the Overdorf was seated, it would have the effect of seating the entire body, and a sale of the Christian Lower as an unseated tract in 1862, would bo invalid and convey no title. These are our instructions so far as the general principles involved in this case are concerned.” “ If you further find that Boyer bought,' that he united them and used them together as one tract, treating them as one before any of these taxes were assessed, and that these tracts were returned in 1856 as a single tract and so assessed, the assessor subsequently would have no right to separate them and return the Christian Lower as an unseated tract without the knowledge and consent of the owner, although there was no improvement at the time upon the Christian Lower. “ But it is alleged that from the time Boyer bought these two tracts down until after the commencement of this suit, the owner supposed that the Overdorf ran some distance along the line of the Lower, that they were joined for a distance of some three or four rods. The owner of the Casper Stiver, an intervening tract, supposed and believed the same thing. The owners of the Lower and Overdorf tracts cut across the point of the Stiver and hauled timber across there as though it was their land. The question is not how the tracts were originally located, but how they were occupied and used. If they were so occupied and used, it would have the effect to make the two tracts one, as much as though they actually adjoined for some distance. All the parties supposed the Overdorf to lie alongside of the Lower, as appears by the deeds given in evidence, both by plaintiff and defendants. The deed to Zimmerman; the one from Zimmerman to Bascom, and the one from Kitzmiller, executor, to Arthurs, each recite that the Lower starts at the hickory and runs south along the Overdorf tract. All the owners and claimants of these lands supposing that these two tracts adjoined, for some distance having used and occupied them as though they did, it can now make no difference that it is discovered that according to the official survey they only adjoin at a corner, an acute angle of the ‘ Casper Stiver ’ coming in between them.” 6. The court erred in answering the plaintiff’s eighth point:— If the jury believe that the Overdorf survey and the Lower survey, being separate surveys, the Lower survey being made the 2d day of Angust 1785, the other about the year 1841, are not connected on the ground except as shown by the official drafts at a point at the hickory corner, the northwest corner of the Lower tract No. 110, and that they do not adjoin each other in any other way than is shown by the official drafts, the seating of the Overdorf tract would not seat the Lower tract, No. 110, in any event. Ans. “We refuse to affirm this point, as we have already instructed you if the parties purchased, united, used and occupied these two tracts together as one, and believed at the time that they joined for some distance, and the owner of the ‘ Casper Stiver ’ .never claiming the intervening land, such ownership, use and occupation of the Overdorf and Lower tracts as one, would make them one tract for the purposes of taxation, and the improvement of the Overdorf tract would seat the whole.” 11. The court erred in answering the plaintiff’s thirteenth point:— If the jury believe that the improvement made upon the west end of the Overdorf tract was not connected with tract No. 110 by any road or passage-way leading from one to the other, it is a strong evidence to rebut the allegation of even using or intending to use both tracts as one, and if they had to pass over tract No. 155, warranted to Casper Stiver, to enter from one tract to the other the seating of the Overdorf tract as shown -would not seat the Lower tract. Ans. “We decline to affirm this point.” 13. The court erred in answering the 16th point of plaintiff. If the defendants or Bascom or Boyer owned tract No. Í10, and the Overdorf tract, it being seated on the west end, would not make one tract of the two or seat the Lower warrant. Ans. “ That would depend upon circumstances, as we have said to you in our general charge. We refer to what we have said as answering this point.” 21. The court erred in answering the defendant’s 8th point. That if the defendants, or those under whom they claim, bought, claimed, used and returned for assessment the Overdorf lot and No. 110, as one tract, in contemplation of law they should be regarded as one tract. Ans. “ If you find the facts as stated the law would be so. We submit to you, as a question of fact, whether they did purchase, use, occupy and return for assessment the two tracts as one, as here stated.” 2. The court erred in saying to the jury : If you find that the plaintiff, in pursuance of his purchase from Kitzmiller, and claiming to be the owner of this tract, bargained with Richard Shaw for a transfer of the treasurer’s deed for - the amount necessary to redeem the land from the tax sale, and actually took a transfer of the treasurer’s deed before the 18th of July 1860, the time when the right of redemption expired, this would, in law be a redemption from that tax sale. 20. The court erred in answering the defendant’s 4th point. That if Richard Arthurs, by virtue of his claim of title which he purchased or had contracted for from Kitzmiller, bought the treasurer’s title from Shaw before the time for redemption had expired, for the taxes and costs and a nominal excess, it would operate as a redemption and would not sustain a recovery in this case. Ans. “ We have already so instructed you in our general charge ; we therefore affirm this point.”
95 Pa. 174Snyder's Appeal (1880)
A testator directed that his real estate should be sold, and then gave and bequeathed his estate, upon the death of his wife, to his seven children and to his grandson, H., share and share alike, ‘‘and in ease my said grandson IL, shall at any time die without issue, I then give and bequeath the bequest of him, the said H., so dying, unto all my children, to share and share alike.” The grandson survived the testator and died without issue : Held, that it was the testator intended a definite failure of issue at the time of the grandson’s death, and that, therefore, the bequest over to the testator’s children took effect.
95 Pa. 184Wingerd v. Fallon (1880)
Error to the Court of Common Pleas of Franldin county: Of May Term 1880, No. 149. Feigned issue wherein Charles H. Fallon and Lizzie G. Fallon, his wife, were plaintiffs, and Virginia O. Wingerd, defendant, to try the validity of a judgment confessed by Adam B. Wingerd in favor of Virginia C. Wingerd, his wife. On the 23d of December 1878, A. B. Wingerd executed a judgment bond to John Stewart, in trust for his wife, Virginia C. Wingerd, for the sum of $10,000. Judgment was entered on the 24th of February 1879, and on the same day an execution was issued thereon by virtue of which the personal property of the defendant was sold to Mrs. Wingerd for $1537.21. On the 14th of February 1879, Charles H. Fallon and Lizzie G., his wife, brought suit against A. B. Wingerd, on a note for $1000. Judgment was entered on the 7th of March 1879, for $1040, and the same day a fi. fa. issued, and defendant’s personal property was seized in execution. The proceeds of the sale of the personal property, $1537.21, were paid into court, and constituted the fund in controversy. Lizzie G. Fallon presented her petition to the Common Pleas of Franldin county, praying that an issue might be framed to test the validity of Mrs. Wingerd’s judgment. The court directed the three following issues : 1. Whether, on the 24th of Febrnary 1879, when Adam B. Wingerd confessed said judgment, for $10,000, to his wife, Virginia C. Wingerd, he was in fact indebted to her in said sum. 2. Whether the said judgment was confessed by the said Adam B. Wingerd, and was accepted and entered in the Court of Common Pleas, by the said Virginia C. Wingerd by collusion, with intent to delay, hinder or defraud the creditors of the said A. B. Wingerd of their just and lawful debts and actions. 8. Whether the said judgment was held, kept on foot, and used by the said Virginia C. Wingerd, in collusion with the said Adam B. Wingerd, with intent to hinder, delay or defraud the creditors of the said Adam B. Wingerd of their just and lawful debts and actions. At the trial it appeared that Mrs. Wingerd was the daughter of Joshua Mo’tter, deceased, who was a man of large estate, and that her husband at divers times had received from her father large sums of money, for which, at his decease, he held the following notes: One for $2300, dated June 25th 1869, another for $800, dated September 2d 1871, another for $750, dated January 13th 1873, another for $300, and still another for $215. On the 4th of May 1876, the administrator settled his first account. The distributive share coming to each child (including Mrs. Wingerd) was $1846.46. On the 21st September 1876, the administrator settled with her. She received her share from him by taking an assignment of the following notes against her husband, to wit: The $800 note and interest, $879.61 ; the note of $750 and interest, $826, making $1705.61, togéther with a note of her husband for $140.85. Thus her husband became indebted.to her on the 21st September 1876, in the sum of $1846.46, her distributive share of the balance on the first administration account. That sum, with interest to the 23d of December 1878, the date of the judgment bond, was $2095.78. A. B. Wingerd having given his not;e to his wife for $140.85, on the 21st September 1876, the date of the settlement, that lifted his note of $114.16, and the interest thereon $26.69, with which the administrator had charged himself in the account. Apart from the $2300 note, there was still a note for $445.54, given on the day of the settlement by Mr. Wingerd to the administrator. So that the $300 note, and the $215 note and interest thereon, held by Mr. Motter at the time of his- death, against Mr. Wingerd were liquidated on the 21st of September 1876, at the settlement, by Mr. Wingerd, giving his wife the note for $140.85, and the administrator the note for $445.54. This left then unaccounted for the $2300 note and the $445.54, still held by the administrator. When the administrator filed his second account, on the 20th of May 1877, each distributive share was $3089.66. Mrs. Wingerd’s share was arranged in the following manner: Her husband was in need of money, and on the 1st of November 1877, she procured the administrator to assign to him a note on Mount St. Mary’s College, amounting with the interest, at the time of the transfer, to $2600, the proceeds of which he received. A year afterwards, on the 1st of November 1878, the Motter family met for settlement at their home in Emmittsburg, and on that day the balanee of Mrs. Wingerd’s share on the second administration account was arranged with her by her acceptance of the $445.54 note and interest, $489.66, in payment thereof. This latter note was assigned to Mrs. Wingerd’s mother by a mistake, as claimed by her. She assumed the payment of it. The defendant contended that the note for $2300 was an advancement made by her father to her and not a debt of her husband, and that it was agreed, at the time of the advancement, between Mrs. Wingerd, her father and husband, which agreemént was subsequently reduced to writing, that Mr. Wingerd was to have the money as a loan and pay interest to the wife. By its terms the note did not bear interest. It was also shown that at the family meeting, on the 1st day of November 1878, Mrs. Wingerd agreed that the $2300 note should be treated and regarded as an advancement; that it should be taken off her share of the real estate when sold; that this arrangement was satisfactory to the administrator and to all the heirs. The plaintiffs contended that the $2300 was a debt due by Mr. Wingerd to Motter’s estate. These sums, with the interest on them, constituted the consideration of the judgment, and amounted in the aggregate to the sum of $10,000, less a small fraction of about’ $200. The judgment was given under the supervision of Mr. Stewart, in his office, upon a calculation made by him on the data furnished by Mr. Wingerd in the absence of Mrs. Wingerd, and for the sole purpose of protecting her. The execution was issued by Mr. Stewart thereon, without instructions from Mrs. Wingerd, pursuant to his duty as the counsel and trustee of Mrs. Wingerd, and for the purpose as such of protecting her interests. The plaintiff submitted, inter alia, the following point, which the court, Rowe, P. J., affirmed: 3. If the jury believe from all the evidence that the $2300 given by Joshua Motter to A. B. Wingerd was a loan and not an advancement, neither A. B. Wingerd nor his wife could change this sum from a loan to an advancement. And if a loan, as against creditors, A. B. Wingerd could not agree to pay interest on this sum to his wife. And if the jury find that there is included in the $10,000 judgment interest on the $2300, from June 1869 to December 1868, such portion of the judgment is void as to creditors. The following were among the points of defendant, all of which the court refused: 2. Even if the jury should believe that the receipt of the $2300 on the 25th of June 1869, by Mr. Wingerd from Mr. Motter, was a loan to him and not an advancement to his wife; still if the jury further believe that subsequent to the death of Mr. Motter, at a meeting in November 1878, for settlement and distribution on the final administration account, the widow and all the children of the deceased were present, and that they were all at the time of full age, and that it was then agreed by the widow and all the children that the note of $2300 should not be collected from Mr. Wingerdbut thstt it should be treated as an advancement to his wife, and deducted from her share of the real estate when sold, and that Mr. and Mrs. Wingerd both acquiesced in and assented to this arrangement, such a family arrangement would be good in law, and operate to convert the note into an advancement. (First assignment of error.) 4. If the jury believe from the evidence that Mr. Wingerd actually received the $2300 from Mr. Motter on the 25th of June 1869, and used it for his own purposes, and it was understood at the time between Mr. Motter and .Mr. Wingerd and his wife, that it was to be an advancement to her, in anticipation of her share of her father’s estate, or if by the family arrangement referred to in the second point (if the jury believe such family arrangement was in fact made) the note was converted into an advancement, then Mr. Wingerd could lawfully embrace this sum in the judgment, together with interest thereon, from the 25th of June 1869, if the jury believe that he at that time agreed to pay his wife interest on the money. (Second assignment.) 5. Even if the note of $2300 is to be treated as a debt of Mr. Wingerd, and not an advancement to his wife, yet if the jury believe from the evidence that at the meeting of the widow and children in November 1878, on the occasion of the settlement of the final distribution of the personal estate, Mrs. Wingerd assumed the payment of the $2300, and agreed that it should be taken off her share of the real estate, and the widow and all the children assented to this arrangement, and in consequence thereof the matter was permitted to rest in that way until the present time, and no steps were taken by the administrator of Mr. Motter to collect the note from Mr. Wingerd, such an agreement by Mrs. Wingerd, if her husband actually received the money, and the claim was an honest one, would create a moral obligation on her part to pay it, and the amount might be legally embraced in the judgment given to her by her husband. Her coverture is a personal privilege which she may waive; she is not bound to avail herself of it for the benefit of her husband’s creditors. (Third assignment.) 8. There is no evidence at all to sustain the second and third issues made up in the pleadings. (Fifth assignment.) In the general charge, the court, inter alia, said :— “ If it was a debt at the death of Mr. Motter, I see nothing in the evidence to make it anything else, or to make Mrs. Wingerd entitled to it now, as creditor. Th,e agreement of the heirs that it should stand over and be deducted from the realty could not have that effect, nor would such arrangement hy the administrator. (Fourth assignment.) “ The other two issues raise the question of collusion and fraud. If Mrs. Wingerd took this judgment with intent to delay or defraud creditors ; or if she used it by issuing execution on it with the same intent, you ought to find the fact. But if this judgment is upon a full consideration, if Mr. Wingerd actually and honestly owed his wife the sum of $>10,000, then I see no evidence at all of fraud. If there are some elements of her claim not established, by the clear and satisfactory evidence which the laws demand that she shall produce, so that you find her judgment must be reduced in amount — as for instance, the $445 note or the $800.44, or both, but if you are, nevertheless, of opinion that she was actuated by no fraudulent purpose in taking it for the sum she did, then you would not find the fraud. But if she took it for a much larger sum than was just, for $2-300, or interest $1300, or both, and under such circumstances as that she must have so known — that itself, or in connection with the haste in execution would show the fraud, and in such case you ought to find that issue for plaintiff.” The jury found for the plaintiff on all the issues. And on the first issue they found specially that the said A. B. Wingerd was indebted to the said Virginia C. Wingerd in the sum of $7700, at the time of the giving of the said judgment. Judgment was entered on this verdict, when defendant took this writ and alleged that the court erred in the answers to the foregoing points of defendants and the portions of the charge noted above.
95 Pa. 191Appeal of the Overseers of the Poor (1880)
The claim of §300 exemption, under the Act of 1849, is a personal privilege and may be withdrawn at any time by the claimant. He is not precluded from withdrawing his claim because he is a pauper and a charge upon a township.
95 Pa. 196Leonard's Appeal (1880)
To surcharge a guardian with a certain fund on the ground that in not collecting it he was guilty of negligence, it must be shown not only that he had the legal right, but was subject to the legal duty to collect it in' his official capacity.
95 Pa. 203Dubois v. Bigler, Young & Co. (1880)
Error to the Court of Common Pleas of Clearfield county: Of May Term 1879, No. 107. Debt by Bigler, Young & Co. against John Dubois, to recover the contract price for two engines built under a contract, the material portions of which were as follows :— “Articles of agreement, made this 24th day of December 1872, by and between Bigler, Young & Co., of the borough of Clearfield, Pa., of the first part, and John Dubois, of the city of Williamsport, Pa., of the second part, witnesseth, that the parties of the first part agree to construct and have ready for delivery, on or before the 1st day of July next, to the said party of the second part, at their shops in Clearfield, Pa., two finished engines, to be placed as shown in a set of drawings furnished by said party of the first part, at an angle of forty-five (45°) degrees, and to be connected to one and the saniR crank. (Here follows a description of the parts of the engines and the materials of which they were to be made.) Engines to be set up by parties of the first part, upon the foundation prepared. The materials, workmanship and working of said engines and fixtures all guaranteed by said parties of the first part, in every respect as of first-class and satisfactory to party of the second part. All water-pipes and fixtures necessary to carry the water from the reservoir through the pump and heater to the mud-drum to be furnished and put in place by the party of the first part, and to be paid for by the party of the second part at manufacturer’s prices. The said engines, with their fixtures and attachments to be designed and constructed, to be made at a working speed of one hundred (100) revolutions per minute ; all to be put up in place and in working order by parties of the first part, as soon as said engines and materials and fixtures shall have been delivered to the site and foundations prepared by the party of the second part; a wagon sufficiently strong to carry the engines from Clearfield to mill site to be furnished by the parties of the first part, free of charge. Said engines and fixtures, when set up, shall constitute everything necessary to make them complete, both as to appearance and capacity, from the steam-drum to the mud-drum. They further agree to furnish the party of the second part with all the pulleys for the mill for which the above-named engines are designed, furnished with wrought-iron bushing and cast-iron nuts for fastening to their shafts, according to plans and drawings to be furnished by parties of the second part, for price or sum of eight (8) cents per pound, finished. In consideration for which, the party of the second part agrees to pay unto the parties of the first part, for the engines and supporting frames, fixtures and attachments complete, including steam-pipe and connections and fixtures set up and completed, the sum of four thousand, two hundred and fifty dollars ($4250). And for the water-pipe and fixtures as before named, put up and complete, manufacturer’s price; for the pulleys finished as above named eight (8) cents per pound. No part of said consideration payable or due before July 1st 1873. In witness whereof, we have set our hands and seals, at Williamsport, Pa., on the day and year first above written. Bigler, Young & Co., [seal] John Dubois, [seal]” The defence was that the engines were so defectively constructed that under the contract there could be no recovery therefor. Dubois was the owner of a saw-mill in Clearfield county, with a capacity for sawing 50,000 feet of lumber per ,day. The engines were to propel the machinery of this mill. They were delivered in February 1874, but by reason of some defect, failed to do their work. Several efforts were made to remedy the defect, but without avail. In January 1876, the engines were removed and another substituted, which the defendant alleged did the work successfully. At the trial, before Mayer, P. J., the defendant made the following offers of evidence:— First offer. As the contract provides that the working of the engine shall be satisfactory to the party of the second part, and nothing in the contract shows what work it was to be employed in, defendant proposes to prove the conversation between the parties at the time of making the contract, with the negotiations leading thereto, to show the purposes, uses and requirements the engine was to satisfy. Objected to as irrelevant and improper, the contract being without ambiguity and there being no allegation of fraud or mistake, and because the proposed evidence would substitute a conversation for the written contract, and tend to mislead the court and jury. Objection sustained. (First assignment of error.) Second offer: Defendant proposes to prove what work the engine was intended to do and where it was intended to -work by conversation of the parties at the time of making the contract. Objected to as irrelevant and improper. And because it is an additional offer to get in verbal communications to control or affect the contract, and that on matters that are not of any account and need no such explanation. Objection sustained. (Second assignment.) The plaintiffs alleged that the defectwas in the foundation for the engines which was constructed by Dubois. The contract, as will be observed, provided that defendant should furnish the foundation, but was silent as to what plan was to be adopted or by whose direction it was to be built. There was a conflict of evidence as to the character of the soil on which the foundation was placed. In regard to this foundation the defendant made the following offer: Third offer: To prove by John Dubois, the defendant, that at the time of making the contract defendant proposed a different kind of foundation from that finally builtand Mr. Young, a member of plaintiff’s firm, insisted upon the kind which was built, giving his reasons therefor; and in accordance with that demand of plaintiffs, the foundation was constructed accordingly. This offer was for the following purposes: 1. To show by and under whose direction the foundation was built. 2. To explain the ambiguity of the contract in this respect. 3. To contradict Mr. Young’s testimony relating to the construction of the foundation. Plaintiffs objected that the evidence was directly in contradiction of the written contract as to two express clauses; that the declarations of the parties could not be received , for such purposes, as the contract itself was the only evidence thereof; that the testimony of Mr. Young was upon cross-examination, and not proper, and that the evidence is irrelevant and improper. . Objection sustained. (Third assignment.) Also fourth offer: “ Defendant proposed to prove — to establish the solidity of the foundation — that an engine of greater power, operating in a direction which produced greater strain on the foundation, with pillow block the same height as the one in dispute, within six months afterwards began to operate on the same foundation, and there has not been any trembling or change in the foundation. This engine was placed on the oundation in April 1876.” Objected to as irrelevant ^njl improper. I already appears in evidence that another engine of different kind and construction has since been put on the foundation whch defendant had changed, to which state of things the present offer relates., laintiffs further objecting that they are not to bo affected, and are not here prepared to discuss the acts and things done by defendant since this suit was brought, to which they are not parties and for which they are not responsible. It would be unjust to plaintiffs and against the rules of evidence. . Objection sustained. (Fourth assignment.) Also, defendant proposed to prove by actual tests and exhibits of material the character of the substance on which the foundation stands, by tests on each side, varying in distance from the foundation from thirty feet to within a foot on each side. Plaintiffs object to proof as to what the soil was at so great a distance as thirty feet from the foundation; the only test is at the foundation. The proof offered is irrelevant and incompetent. Objections sustained. (Fifth assignment.) Plaintiffs offered record of suit No. 145, January Term 1876, in the Court-of Common Pleas of Lycoming county, Pa., which suit was an action of covenant brought by John Dubois against Bigler, Young & Co. (who are now plaintiffs in this case), to recover damages for the non-performance, of the written contract of December 24th 1872, upon which this suit is in part founded. This offer for the purpose of showing that said suit was by said Dubois ruled out and arbitrated, and an award duly rendered against him of no cause of action; and that said Dubois afterwards in said case suffered a voluntary nonsuit, and that judgment was entered accordingly. This being offered to show that the claim of damages made against the present plaintiffs by said Dubois for the non-performance of said contract under seal was adjudicated; and that the said Dubois is bound by the same, and is not entitled to recover in this suit for the matters adjudicated by the suit and the award referred to. And also, for all purposes for which the said record may be evidence — on the question of damages :and in answer to defendant’s claim for damages in this suit. Objected to by defendant, and objection overruled. (Sixth assignment.) The first and second points of defendant which the court refused were as follows:— 1. As plaintiffs, by their contract, guaranteed the materials, workmanship and working of the engines and fixtures, including everything necessary to make them complete, both as to appearance and capacity, they thereby guaranteed the success of the plan, as well as the materials and workmanship, unless that success was prevented or hindered by the act or default of the defendant after the making of the contract. 2. As the contract provides that'the drawings for the engines were to be furnished by the plaintiffs, the % guaranty included the success of the plan as well as of the materials and workmanship, unless that success was hindered or prevented by the act or default of defendant. The refusal of these points constituted the tenth and eleventh assignments of error. Verdict for plaintiffs for $3172.74. A, motion for a new trial was overruled and judgment entered on the verdict. The defendant then took this writ and alleged that the court erred, inter alia, as set forth in the above assignments of error.
95 Pa. 211Baker v. Allegheny Valley Railroad (1880)
Error to the Court of Common Pleas of Clearfield county: Of May Term 1880, No. 151. Trespass on the case by Bridget Baker and others, the wife and infant children of Bartley Baker, deceased, against the Allegheny Yalley Railroad Company, to recover damages for the death of said Bartley Baker, alleged to have been caused by the negligence of defendant. Plea, “ not guilty.” Baker was one of a gang of men working on a gravel train, and, at the time he was killed, in 1876, was engaged along with others in hoisting heavy stones upon the cars of the train. In loading the stones, the men used a derrick, which consisted of an upright -wooden mast, about twelve inches in diameter at the ground, and about fifty feet in height, and held in place by four guy ropes attached to the top of the mast, and the other end of the ropes anchored to posts in the ground. To the mast of the derrick was attached a crane with pulley-blocks, tackle, &c On the morning the accident happened the men had loaded two or three stones. Baker was standing on one of the cars, in the act of obeying an order of the man in charge of the work, and a heavy stone was being raised, when one of the guy_nc>pes gave way on account of the rottenness of the rope, and the mast of the derrick fell with great forceTstriking Baker across the breast, from the effects of which he died within an hour after. At the time Baker was injured, he was working under the direction of Daniel Nolan, who then had, under the defendant company, the exclusive charge and direction of the gravel train, and men connected with it, and had authority from the company to hire and discharge the men who worked in his gang. William McGregor was superintendent of the work where Baker was killed. The derrick was furnished by the defendant company, and had not been used for a long time previous to the day Baker was killed. It was an old structure, erected in 1872 or 1873, and it was in evidence the guy ropes had been exposed constantly to the weather, without change, for a long time; were old, decayed and rotten, and were unsafe and unfit for the purposes for which the derrick was used at the time it fell. There was also testimony of experts, to the effect that such ropes, after being exposed to the weather for a year, were unsafe and unfit to sustain a heavy weight. The plaintiffs proposed to prove that Daniel Nolan, the superintendent of the gravel train, a few minutes before the accident happened, said to the witness, or in his hearing, that one part of the men should go to one side of the derrick, as it was not safe; this order not being given to Bartley Baker, or in his hearing, to the witness’ knowledge. Objected to, because the offer is immaterial and irrelevant; because no order there given by Nolan could affect defendants or make the company liable in damages, he being a co-employee; and because such order may have been given and the witness not have heard it; and the testimony does not show such order was not given to Baker, if it was material to prove that it was not. Objections sustained. Plaintiffs’ second offer was as follows: What did Mr. McGregor say, if anything, at the time the rope was examined, immediately at the time of the accident, as to its cause ? Defendants objected to the question because it was immaterial and irrelevant under the proof in the stage of the cause ; and because the plaintiffs had not shown that McGregor held such a relation to the defendants as would make his declarations admissible to affect the defendants. Objections sustained. When the plaintiffs closed their case the court, on motion of defendants, entered a compulsory nonsuit, and the court in banc subsequently refused to take it off. The plaintiffs then took this writ, alleging that the court erred in rejecting the foregoing offers of evidence, and refusing to take off the nonsuit.
95 Pa. 216Bentz v. Bentz (1880)
202. Assumpsit by George Z. Bentz and Jane E. Bentz, his wife, in her own right, against Abner W. Bentz, on the following note: “$3000.
95 Pa. 220Ex parte Steinman & Hensel (1880)
Writs of error to the Court of Quarter Sessions of Lancaster county: Of May Term 1880, Nos. 173 and 174. The court below entered rules on A. J. Steinman and W. U. Hensel, to show cause why they should not appear and answer for contempt of court, and also why they should not be disbarred for misbehavior in their offices as attorneys of said court.
95 Pa. 240Buchanan v. Hazzard (1880)
Error to the Court of Common Pleas of •McKean county: Of May Term 1880, No. 50. Ejectment by ITenry E. Hazzard and Mary A. Hazzard, for the use of said Mary, against Russell Buchanan and Jefferson Buchanan, for a tract of land. At the trial, before Williams, P. J., it appeared that the title to the property in dispute was in Mrs. Hazzard, but the defendants claimed under her the right of possession for oil purposes. The facts upon which this claim was founded were as follows: On the 7 th of June 1877, Mrs. Hazzard executed an oil lease, wherein it was stipulated that in consideration of one-fourth of the oil to be produced, and of mutual covenants, she granted and let the premises in dispute to Buchanan Bros., for the purpose of boring for and pumping oil, &c., for the term of twelve years, the lessor to have the use and enjoyment of the premises for the purposes of tillage, except such portion as might be necessary in the mining and boring and a right of way thereto. The work was also to begin within twenty-five days, and if the first well should produce ten barrels a second was to be drilled. The lease was under seal and signed by Mrs. Hazzard and. the Buchanan Bros., but was not signed by Mrs. Ilazzard’s husband. It was acknowledged by Mrs. Hazzard before a notary public, who certified in due form to a separate acknowledgment by her. The defendants made 'the following offer of evidence:— “ The lease from Mary A. Hazzard to the Buchanan Brothers, dated 7th of June 1877, for the premises in controversy, to be followed by an instrument of sale, Mary A. Hazzard to Buchanan Brothers, dated 11th of August 1877, conveying one-eighth of her right to the oil produced upon the land in controversy; to be followed further by an instrument dated 9th July 1877, Mary H. Hazzard and husband to Andrew and P. Balton, which was duly executed according to the laws of Pennsylvania for passing title of land by a married woman, in which she sells for the consideration of $400, one-eighth part of the oil produced by a well then being drilled on the land by Buchanan Brothers; to be followed further by evidence that the defendants went into possession under the instrument referred to, and drilled two wells and produced oil therefrom, and delivered to Hazzard and wife their share of the royalty; that the plaintiffs resided upon the land at the time the wells were drilled, had knowledge of the labor and money expended in producing the oil, and aided and encouraged the defendants in this production ; and that the plaintiffs resided on the land at the time of the commencement of this suit; that the well referred to in the contract of 9th of August 1877, was the one being drilled by Buchanan Brothers under the lease of 7th of June 1877 ; that at the time of the execution of the instruments referred to the husband of Mary A. Hazzard" was present and participated; that the sum of $50 in money was paid to Mrs. Hazzard on the execution of the instrument of the 7th of June; that the sum of $600 was paid to her, her husband being present and consenting, as the consideration of the instrument executed by her and dated the 11th of August 1877; that the defendants have never been in possession of the land except for the purpose of producing oil according to the terms of the lease executed to them ; that the plaintiffs have not refunded nor offered to refund the money paid as above stated, nor done other acts to protect the defendants against the loss which would be occasioned by their outlay.” The plaintiffs objected on the ground that the lease was executed by a married woman, and as her husband had not joined therein, it was void and passed no right or interest to the defendants. Objection sustained and evidence rejected. The defendants then asked the court to charge the jury, “ that if they find the plaintiffs were in possession of the premises described in the writ at the time of the commencement of this suit, they cannot recover in ejectment,” to which the court answered: “The principle stated in the point is well settled, but the evidence in the case shows that a portion of this land is in actual occupancy of the defendants, they having structures of some permanence upon it, which were occupied by them. We think, therefore, this case is not within the rule which the point invokes.” • The court then directed a verdict for the plaintiffs, which was rendered accordingly, and after judgment thereon defendants took this writ and assigned for error the refusal of the above offer of evidence, the answer to the point and the direction to the jury to find for plaintiffs.
95 Pa. 243Brown v. Dempsey (1880)
62. Rejflevin by Brown & Norris and Howe & Cook against John Dempsey and Florence Dempsey, doing business as Dempsey Brothers, to recover a steam-boiler which had been left with defendants for repairs. The case was referred to W. W. Brown, Esq., as referee, under the Act of May 14th 1874, whose findings of fact and conclusion thereon will be found stated in the opinion of this court.
95 Pa. 247Felt & Co. ex rel. Gifford v. Cook & Hackett (1880)
139, 140. On November 19th 1873, L. G. Cook recovered a judgment against J. P. Felt and S. S. Hackett, who were partners. The action was in tort and the amount of the judgment was $206.50. Execution was issued thereon, which the court stayed because of pending proceedings in bankruptcy against said defendants.
95 Pa. 251Welch v. Emerson (1880)
By articles of agreement, TV. agreed with E. to sell to him a tract of land for 8800, of which sum 8300 were to be paid on a day certain, and the balance in yearly payments, with interest. The agreement also provided that if E. failed to make the payments TV. should take possession of the premises and sell the same, upon giving notice to E. of twenty-four hours. E. entered and held possession of the land but never made any of the payments, alleging as a reason therefor that there were liens on the land which should first be discharged. After the expiration of the time for the final payment and when the liens were all discharged, M., the grantee of TV., served notice of twenty-four hours on E., that he thereby took possession of the land and that the second day thereafter, on the premises, at a stated hour, would expose the same for sale. In pursuance of this notice M. sent his agent to the premises, who remained thereon about fifteen minutes, during which time he sold the land to another person, and then being ordered off by E. left with the purchaser, E. remaining in undisturbed possession. The purchaser then brought eject-* ment against E. to recover the land. Upon a special verdict, in which the jury found that there had been a mere going upon the premises, the court directed judgment to be entered for the plaintiff, to be set aside and entered for defendant if the latter paid the purchase-money with interest within thirty days : Held, that defendant was 'entitled to this conditional verdict as his equity was not extinguished by the entry and sale : Held, furthev, that the mere going upon the premises and a sale in pursuance of the notice was not a taking possession according to the terms of the contract.
95 Pa. 258Emerson & Wall's Appeal (1880)
A court .of equity has no jurisdiction to appoint a receiver to take charge of an oil-producing well pending an ejectment brought to try the title to the possession of the premises.
95 Pa. 262Innis v. Templeton (1880)
67. Ejectment by William J. hnnis against P. A. Templeton. By agreement the parties waived a trial by jury and submitted the case to the decision of the court, Williams, P. J., who found the facts as follows :— “That in the months of September, October and November 1877, and until the 28th of August 1878, the land in controversy was held by Lois M. Innis, wife of William Innis, by virtue of a contract with Calvin T. Chamberlain, and was in her actual possession, being part…
95 Pa. 269Overseers of Laporte Borough v. Overseers of Hillsgrove Township (1880)
201. In the court below this was an appeal by the Overseers of the Poor of the borough of Laporte from an order of removal of Mrs. Elizabeth Burnett and her five children from the poor district of Hills-grove. The case was argued before Elwell, P. J., of the Twenty-sixth Judicial District, having been certified to said district by Ingham, P. J., of the Forty-fourth District.
95 Pa. 279Lant's Appeal (1880)
198. Appeal of Julia M. Lant from the decree of the court dismissing her exceptions to the report of the auditors appointed to distribute the estate of Elizabeth M. Mullen, deceased. The deceased, Elizabeth M. Dunn, who was a maiden lady of considerable wealth, in 1875 agreed to marry John A. Mullen, and February 9th 1876 was fixed as the day for the marriage.
95 Pa. 287City of Allegheny v. Zimmerman (1880)
1, of Allegheny county: Of October and November Term 1879, No. 89. Case by George Zimmerman, by his father, Jacob Zimmerman, against the City of Allegheny,-to recover damages for injuries sustained by plaintiff, a lad eight years of age, who ivas injured by the fall of a pole erected on East street, near the corner of Second street, in the city of Allegheny.
95 Pa. 295Lehman v. Howley (1880)
2, of Allegheny county: Of October and November Term 1880, No. 128. Ejectment, brought December 31st 1879, by Martin Howley against Henry Lehman and T. H. B. Patterson, for a tract of land in the possession of Lehman as tenant of Patterson. The praecipe contained a description of the property, and averred that the right of possession or title was in the plaintiff. The writ was duly served on Lehman, for whom an appearance de bene esse was entered.
95 Pa. 301Fahnestock v. Wilson (1880)
2, of Allegheny county: Of October and November Term 1880, No. 202. Scire facias sur mechanics’ lien, issued by R. H. Wilson, a subcontractor, against B. L. Fahnestock, owner, and A. J. Fair, contractor.
95 Pa. 305Walter's Appeal (1880)
60. Appeal of John M. Walter from the decree of the court in the matter of the estate of Adam Walter, deceased. Adam Walter died on the 7th of May 1875, being seised of. certain real estate and personal property situate in Allegheny county, which real estate, by his last will, he devised to his two sons, John M. and James H. Walter, in fee.
95 Pa. 308Williams v. Tracey & Co. (1880)
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880,' No. 137. Plaintiffs brought an action of trespass before a justice of the peace against Williams and others, owners of a steamboat, for alleged damage to plaintiffs’ flats, which were moored at Sewickley in the Ohio river. Defendants appealed from the judgment of the justice, and while they were temporarily at New Orleans, being engaged in the coal trade, the case was called for trial in court. The attorney for defendants objected to the case being put on the weekly list, and when the ease was reached during the week, defendants’ counsel being without witnesses agreed to a reference. Upon the return of defendants they immediately objected to the reference, and a rule was granted by the court to show cause why “ the agreement of reference should not be set aside and the submission stricken off.” This rule was taken and notice thereof given to the parties before any meeting of the arbitrators was held. Before the rule to show cause was argued the arbitrators met and made their award, the defendants not appearing. Upon the refusal of the court to set aside the reference, plaintiffs’ attorney filed the award. Thereupon defendants’ attorney asked for a rule to show cause why the award filed should not be set aside. The reasons in support of this rule were not deemed sufficient by the court to cause it to set aside the award, and this rule was also discharged. The defendants then took this writ, alleging that the court-erred in not setting aside the agreement of counsel to arbitrate and in not setting aside the award of arbitrators.
95 Pa. 310Kiern v. Ainsworth (1880)
1, of Allegheny county: Of October and November Term 1880, No. 2. This was an action upon one of ten judgment notes brought by Elizabeth A. Ainsworth, for the use of her children, against Henry Kiern. Judgment was entered upon the notes, but upon application of Kiern they were opened and he let into a defence. The notes were given by Kiern to the husband of the plaintiff on an occasion when Kiern was detected by Ainsworth in illicit relations with the plaintiff, his wife.
95 Pa. 312Watterson's Appeal (1880)
Appeal from the Orphans’ Court of Allegheny county : Of October and November Term 1880, No. 165. Appeal of A. Y. D. Watterson, trustee cum testamento annexo of the estate of William Maloney, deceased, from thn decree of court upon the exceptions to the account of appellant as said trustee. On the 28th of December 1870, William Maloney died, leaving a widow and five minor children. By his will he, inter alia, made the provision in regard to his policy of life insurance which will be found in the opinion of this court. On June 1st 1878, John Mullin was discharged from his execu: torship of said decedent’s estate, and appellant was appointed trustee, cum testamento annexo, in his place. On October 15th 1879, appellant was cited by the assignee in bankruptcy of Mullin & Maloney, to file his account as trustee of said estate. He complied therewith; and to said account the assignee filed, inter alia, the following exceptions : 3. By the will of William Maloney Mrs. Bridget Maloney is entitled to one-third of the rents collected from the trust estate, which now is payable to exceptant as her assignee in bankruptcy, and the accountant has paid over to her all the rents collected by him except the taxes, &c., and this without an order of court. His action is excepted to, and exceptant claims the one-third of the net income from said estate, and, therefore, asks that accountant be surcharged with one-third of the amount so unlawfully paid out, to wit, about the sum of $808.35. 4. All the items of cash claimed credit for in said account as paid Mrs. B. Maloney, guardian, are objected to as improper. It was claimed on behalf of the assignee in bankruptcy of Mrs. Maloney, that she must be presumed to have elected to take under the intestate law as widow, and that he was entitled, by virtue of the assignment to her interest so derived. On the contrary it was alleged that Mrs. Maloney elected to take, ..and actually received the insurance money, in lieu of her dower and interest in said estate, a short time after the decease of her husband, the contents of the will having first been fully and satisfactorily explained to her. This claim, it was contended, was supported by the testimony. Mrs. Maloney testified, “ I did not want any of the real estate; there was very little for the children at the time : I was very well satisfied. I decided at the time,” (of her husband’s death) “ and when Mr. Fetterman read the will to me, I told him I would take the money; he said that if I so decided I would not have anything under the will; 1 told him I did not want anything else under the will.” Also, “ I was perfectly satisfied ; I had knowledge of the will before my husband’s death : he told me what he was going to do; I was perfectly satisfied.” The question having been asked her, “ Bid you ever change that decision afterwards and claim any part of the estate ?” She replied, “No, sir; never! never claimed any.” She, in fact, never received anything from the executors or trustee, as widow, under the intestate law, and during the lapse of years between the death of her husband and the bankruptcy proceedings never claimed anything. On the contrary, she frequently asserted that she desired nothing else from her husband’s estate. “ I decided to take nothing at all of the real estate; it (the insurance money) was enough for me at the time ; I considered I had a .very good share at that time; it was enough for me at the time — even more than my share.” G. L. B. Fetterman, testified : “ I told her, unquestionably, and my recollection is — I may be mistaken — but my recollection is that I explained to her also the effect of her election upon the intestate law; I am satisfied that she knew from the conversations, and I endeavored to make the conversations as clear as possible to her, that she knew what her rights were under that will and under the intestate law. I told her if she took the $10,000 she was cut out from taking anything else under the will, and my impression is I told her at the same time what her rights were under the intestate laws, and she determined to take the $10,000.” And on this point John Mullin testified, as follows: “Yes, sir; she took the $10,000 ; she took it in the place of her dower; she had nothing to do with the estate; she communicated that fact to me, what she would take ; she decided she would take the $10,000.” Miss Mary Maloney, daughter of Mrs. B. Maloney, testified: “ She did thoroughly understand about the will, that she could take her $10,000, and besides that the law allowed her onc-third; but she said she considered the estate was small enough for the children; I wanted her to build on the lots on Robinson street at the time, and have it as a home, and take her third; she said no, that she would rather take the money; my mother took the insurance money.” The court, in an opinion, inter alia, said: “ There was no contrivance by which William Maloney could have deprived his widow of the right to take both the insurance money and her interest as widow under the intestate laws in his estate, had he attempted it; but he did not attempt it. He said nothing about intestate laws directly or indirectly. He simply made it a condition of acceptance by his widow of benefits under his will, relinquishment by her of individual title to the insurance money, and consent that it become part of his estate. No one denies that he had a perfect right to impose this condition, and she to refuse the will and to take under the intestate laws. Refusal of the one necessarily involved acceptance of the other. That she did refuse acceptance of the benefits of the will, the testimony shows. Her refusal, by mere operation of law, invested her with the interest of widow in his estate. The insurance money was hers, notwithstanding and without the will. It is immaterial that she was ignorant of her right to take both the insurance money and her interest under the intestate laws. Knowledge on her part was unnecessary to vest title in her. Descent is daily cast without the knowledge of heirs, and no one doubts the validity of the title so derived. So, valid deeds may be made without the actual knowledge of the vendee: Reed v. Robinson, 8 W. & S. 329. Acceptance of title in such cases is presumed. Once invested with title, Mrs. Maloney could not divest it by parol without consideration as against creditors. Not having parted with it prior to her bankruptcy, it passed to her assignee: Thomas v. Simpson, 3 Barr 60. In what position, then, stands the trustee ? He made distribution without the authority of this court at his peril. He did not even make inquiry of the widow in w'hat relation she stood to the estate, but assumed-that she was entitled to the whole net income as testamentary guardian, and is, therefore, entitled to the less sympathy for the loss which must result to himself therefrom. The assignee was clearly entitled to the widow’s interest from the date of bankruptcy.” The court then made a decree which contained, inter alia, the. following direction:— “ That the third exception be sustained, and accountant is surcharged with one-third oí ttie rents received and included in account, less one-third taxes, repairs, &c., $389.74. That the fourth exception be sustained, and that the amount surcharged as above, viz., $565.66, be paid by the said trustee to the assignee in bankruptcy of the firm of Mullin & Maloney, less the clerk’s costs in this proceeding.” From this decree this appeal was taken.
95 Pa. 318Stabler v. Commonwealth (1880)
Error to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1880, No. 188. Indictment of Alois Stabler for an attempt to administer poison and solicitation to commit a felony. The first count charged that the defendant feloniously did attempt to administer a certain poison, commonly called Paris green, * * * to one Richard E. Waring, * * * with intent to commit the crime of murder, and to feloniously kill and murder the said Richard F. Waring, &c. The sixth count charged that defendant did falsely and wickedly solicit and invite one John Neyer, a servant of the said Richard E. Waring, to administer a certain poison and noxious and dangerous substance commonly called Paris green, to the said Richard E. Waring, and divers other persons whose names are to said, inquest unknown, of the family of the said Richard F. Waring, &c. There having been no official notes of testimony taken on the trial of the case in the court below, it was agreed that this court should treat the following as being all the testimony bearing on the first count of the indictment. “ The only witness sworn was John Neyer, who testified that he had a conversation with Alois Stabler, over a year before the information was made against him, in which Stabler stated his grievance against Waring, and stated his (Stabler’s) determination to be revenged, and then solicited Neyer to put poison in Waring’s spring, so that he and his' family would be poisoned, and offered the witness a reward therefor, and gave him directions how to administer the poison, and gave him the poison to so administer. That the witness refused to administer the poison, and said he would not have anything to do with it, and handed the poison back to Stabler. That the witness had his coat off when the two were talking together. Three or four days after this conversation, the witness, upon putting on his coat, found a package in his coat pocket, which he believed was the same package that Stabler had handed him. That the witness shortly after left the city of Pittsburgh and went to Toledo, Ohio, where he remained several months. That he again returned to Pittsburgh, about a year after the conversation with Stabler, and then, for the first time, told a party about what had taken place, and handed this party the package of poison. “That the witness never had any intention of administering the poison, and never did anything towards it, and never had any other conversation with Stabler about the matter except the one stated.” The court, Ewing, P. J., charged the jury:— “ That, if they believed the testimony of John Neyér, and found that the defendant, Stabler, in a conference with him had stated his grievance against Waring, and his determination to be revenged, and solicited Neyer to put poison in Waring’s spring or well, so that he and his family would be poisoned thereby, and offered him a reward therefor, giving him directions how to administer the poison, and gave him the poison to so administer, which having been handed back, was, in the same conference, put by Stabler, the defendant, into the coat pocket of Neyer, and left'there, expecting and believing that he would place the poison as requested, it constituted an attempt, and they might find the defendant guilty on the first count of the indictment.” The jury found a verdict of guilty on both the above counts. The defendant moved for a new trial and in arrest of judgment. The court overruled both motions and pronounced a separate sentence on each count. No complaint was made of the conviction on the sixth count, but the defendant took this writ and alleged that the court erred, inter alia, in charging that the testimony of Neyer was sufficient to sustain a verdict of guilty on the first count
95 Pa. 323Fulton's Appeal (1880)
Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 73. In the court below a judgment was obtained on June 20th 1879 by the Central Bank against James B. Fulton, Peter Hutchison, Joseph Henderson,- J. B. Williams, John Henderson, William Henderson, Oliver Henderson, W. P. Logan and Jacob H. Walter, late partners, doing business as Fulton, Marvin & Co. On the 9th of February 1880 James B. Fulton, John Henderson, Joseph Henderson, William Henderson and Oliver Henderson filed a petition which set forth that they were defendants in the above-mentioned judgment, “that said judgment after an award of arbitrators has been entered against them, and all the defendants of record, including Jacob H. Walter and others; that it was entered for the sum of $8833.55 and costs, and the plaintiff demands the money in full from your petitioners, whose real estate is subject to the lien of said judgment and award; that your petitioners are forced to pay the amount of said judgment, and are now prepared to pay the same in full; but that a bill in equity for settlement of the business of said firm of Fulton, Marvin & C°- was filed at April term 1876, and the case has been pending before a master, and a large amount of testimony has been taken therein, and that-the case is now about closed, so far as the taking of testimony is involved; that your petitioners are advised that under the evidence they should recover against one of the defendants in this said case, Jacob H. Walter, a large decree for moneys in his hands belonging to the said firm and them, exceeding the amount of the award and judgment in this case, and to protect the interest and equities of petitioners in payment of said judgment and costs, they respectfully ask the court to make an order in the premises, under the equitable practice of the court, and especially under the Act of Assembly of April 22d 1856, which provides, that where one or more such defendants are compelled to pay such judgment that the court shall order and direct, under power vested, to what uses said judgment shall be assigned, &c. Your petitioners, therefore, respectfully ask that such an order be now made by this court as will protect their interests in the premises, and preserve the lien of the judgment against said Walter and other defendants, to the end that if it appear, on final decree in said bill in equity suit, that the whole or any part of said judgment and costs shall he due your petitioners from any of the defendants who do not now contribute to such payment, then said judgment may be controlled in accordance with the equity of the case and the said Act of Assembly, and they will ever pray, &c.” A supplemental petition and affidavits, praying for a rule were filed as follows : “ That an affidavit made by Joseph Henderson on the 7th of February 1880 was filed and a rule granted, but that since said rule was granted an execution was issued and direction given, as affiant is informed and believes, to levy the debt, interest and costs in the judgment of the goods and chattels, lands and tenements of this deponent and his co-defendants, above named (Fulton and Hendersons), which execution is now in the hands of the sheriff. That an award, of arbitrators was filed in the original suit at No. 1214 of September term 1876, on the 30th day of January 1877, for the sum of $7837.36, and costs; and from which award against this deponent and the said co-defendants hereinabove named, an appeal was duly taken, and upon issue joined a verdict and judgment was rendered against them on. the 14th day of June 1879, for $8833.55, &c., upon which said execution has been issued. “ This affiant further says : That there are other defendants in said suit, and under said award and judgment, whose lands and tenements, goods and chattels are bound by said judgment and execution ; but from whose said lands, &e., goods, &c., it is not now the purpose of the plaintiff to levy and collect said judgment or award, to wit, Jacob PI. Walter, Peter Hutchison, William P. Logan and Jacob B. Williams; but said sheriff has been, or will be, directed to levy and collect said judgment of the lands and tenements, goods and chattels of this afiiant, and said other defendants, James B. Fulton, John, James, Oliver and William Henderson. “ Affiant is advised, that this court has legal and equitable control over said execution, inasmuch as all the- partnership assets of said defendants, Fulton, Marvin & Co., have long since been converted, and do not now- exist; and have been and are in the hands and possession of said Jacob H. Walter, one of the said defendants; and deponent and said Hendersons, defendants, are desirous of having the lien of said judgment preserved against the lands, &c., of the said Jacob H. Walter, Peter Hutchison and Logan, all of whom have lands in the county of Allegheny, as deponent is informed and believes, which lien will be released and satisfied, in case deponents and the said' co-defendants pay said judgment to the sheriff, or do voluntarily pay and satisfy said judgment and costs. “ He, therefore, asks the court to order and direct, that said execution may also be levied on, and said money be collected of and from the lands, goods and chattels of said other defendants, Walter, Hutchison and Logan, in the proportion that their interests in said firm were, to wit: Said Walter had a one-sixth interest, in the said firm of Fulton, Marvin & Co.; and the said Hutchison one-sixth interest, therein; the said Logan and Williams each one-sixth interest,, and the said Fulton one-sixth interest therein; arid this deponent and the said John, Oliver and William Henderson, had together, one-sixth interest in said firm. “ And affiant further says, that the hill in equity mentioned in the said affidavit made by said Joseph Henderson, at said No. 36 of April Term, of 1876, is now being pressed to a hearing before the master, as will appear by reference to the proceedings therein, pending at the suit of this affiant, and others, against said Jacob II. Walter, in which case deponent verily believes a decree will be obtained against said Walter for a large sum of money greatly exceeding the amount of the debt, interest and costs, for which said execution has been issued. “He therefore respectfully asks, that the court shall order and direct the plaintiff in said execution, and the sheriff to levy and collect said judgment from the lands and tenements, goods and chattels of all the said defendants therein, in the proportion that their interests in said firm were at and before it was dissolved, which dissolution defendant avers was about the --day of January 1873, since which dissolution said defendants and said firm have been endeavoring to make a just and equitable settlement of their business, as will appear by reference to said bill in equity, and proceedings therein — or this affiant and his said co-defendants ask and desire, that they may be allowed to pay said judgment and execution, in full to the plaintiffs, and that the court do order and direct, that the said judgment be assigned to them, to remain and abide the final decree in said suit in equity; and that the court do make such other order therein, as the equitable right of the parties in the case demand, and what is directed to bo done under the Act of Assembly in such case made and provided, to the end that if a final decree shall be rendered in said equity suit against said Walter, or against him and any, or all of said other co-defendants in the execution now issued in this case for a sum less, equal to or greater than the debt, interest and costs, which shall be paid by this deponent and his said co-defendants, then an.execution under the direction of this court may be issued as to the court may seem meet and proper, for the protection of the defendants paying said money. “ Deponent, therefore, asks a rule to show why said plaintiff should not levy and collect his said judgment on said execution from all said defendants’ lands, &c., in the proportions named, or otherwise, that this deponent and his said co-defendants, on payment of the whole debt, interest and costs, for which said execution has been issued, have said judgment assigned to them for such uses and purposes as the court may direct. And the_ affiant asks that the affidavit heretofore filed (the one set forth above) may be deemed a part hereof.” The Act of April 22d 1856, Pamph. L. 534, provides as follows : “ Whenever the real estate of several persons shall be subject to the lien of any judgment to which they should by law or equity contribute, or to which one should have subrogation against another, or others, it shall be lawful for any one having right to have contribution, or subrogation, in case of payment, upon suggestion by affidavit and proof of the facts necessary to establish such right, to obtain a rule on the plaintiff to show cause why he should not levy upon and make sale of the real estate liable to execution, for the payment of said judgment in the proportion, or in the succession in which the properties of the several owners shall, in law or equity, be liable to contribute towards the discharge of the. common encumbrance, otherwise, upon the payment of such judgment, to assign the same for such uses as the court may direct; and the court shall have power to direct to what uses the said judgment may be assigned, and when assigned, direct executions thereupon, so as to subserve the rights and equities of all parties whose real estate shall be liable thereto, and if the plaintiff shall refuse to accept his debt, and make such assignment of his judgment, the executions thereupon in the hands of the plaintiff, shall be so controlled and directed by the court as to 'subserve the said rights and equities.” The plaintiff in the judgment made no answer, but Jacob H. Walter filed an answer to said petition, which set forth that, “true it is that a bill in equity was filed by James B. Fulton and others against J. H. Walter et al., for settlement of the accounts of the said firm of Fulton, Marvin & Co., and that the suit is pending before an examiner, who has not yet completed the taking of testimony ; that a meeting has been fixed for the appearance of the parties on the 19th instant, to take further testimony ; that it is not true that the petitioners should recover against one of the defendants, Jacob H. Walter, a large decree for moneys in his hands belonging to the said firm or belonging to them, the said petitioners; that it is not true that the- said plaintiffs in the said equity suit, are entitled to a decree against this deponent for any sum or amount whatever, but on the contrary the decree should be in favor of this affiant, who is in advance of said firm, and who paid many debts and large amounts for said firm, and had to advance moneys for said firm because the said petitioners defaulted and failed to pay their just share or proportion of the liabilities of the firm of Fulton, Marvin & Co.; .that for the purpose of avoiding litigation, when this suit was commenced, affiant offered to pay much more than his share of the legal liability involved, but the petitioners refused to pay a single dollar, and endeavored to cast the whole liability upon the deponent, very unjustly. Affiant suggests that the petitioners have set forth in their petition ho legal or equitable grounds for the relief demanded; that this honorable court has not power to make any order or decree, such as is demanded, and that said petition should be dismissed. And petitioner further charges that, inasmuch as the petitioners, being legally liable for the said judg ment, have not paid the said judgment, or any part of it, they have no right to claim or petition for the assignment of said judgment, or other or further order or decree of the court in the premises, and upon these grounds the prayer of the said peti tioners should be denied. All .of which is true as deponent verily believes.” The court, after argument, discharged the rule, when Fulton and the other petitioners took this appeal, alleging that the court erred in this action.
95 Pa. 329Appeal of the Germania Savings Bank (1880)
Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 103. Appeal of the Germania Savings Bank of Pittsburgh from the decree of the court distributing the proceeds of the sale of certain real estate of Mrs. Kate Hale, wife of John M. Hale. The property was sold for $3100, under a mortgage, which was the first lien thereon. The sheriff made a special return distributing the fund, when exceptions were filed to said return by various mechanic’s lien-creditors, and an auditor, Thomas Herriott, Esq., was appointed to pass upon the claims and report a distribution. The auditor, inter alia, reported : “ The claimants of the fund are : First. The Germania Savings Bank, the owner of a purchase-money mortgage, on which judgment was obtained, execution issued, and the property sold. The proceeds of this sale are now to be distributed. It is admitted by all the parties that this mortgage is first to be paid in full. , “The same bank owns another mortgage, dated August 17th 1878, and properly recorded on August 22d 1878. It claims that this second mortgage, on the same property, should be p&id next after the purchase-money mortgage above mentioned. “Various mechanic’s lien-creditors claim that they are entitled to be paid before the second mortgage held by the bank, and the contest is between the mortgage and the mechanic’s liens. The mechanic’s liens were all filed in the prothonotary’s office some time after the second mortgage was recorded, but are filed for work done and materials furnished to the house of the defendants some months before the mortgage was recorded. The evidence shows clearly that the house, for the erection of which the mechanic’s liens were filed, was commenced in the fall of 1876, nearly a year before the second mortgage was recorded; it was completed a short time before the second mortgage -was given.” At the time of the sale there was due on this second mortgage $1933.64. The sheriff awarded payment of this mortgage in full, but the auditor and court being of opinion that the mechanic’s liens hereinafter mentioned were entitled to priority, reduced the amount to that extent. The mechanic’s claim of Alfred Harrison recited that “ the said Kate Hale, who is a married woman and the wife of John M. Piale, is the owner of said dwelling-house and .premises and the lots of ground on which the same is erected, * * * and that the said A. J. Fair was the architect, contractor and builder of said building, and built or caused the same to be built and constructed under and in pursuance of a contract with the said Kate Hale, and by her authority and direction. The said stone work and labor, and materials for the same, was so done and furnished at the instance and request of the said A. J. Fair, said contractor, who made said contract for the same, and ordered and caused the same to be so done and furnished as aforesaid, by and with the authority and consent of the said Kate Hale, with the knowledge and consent also of her husband, said John M. Hale. The said dwelling-house was so erected by said contractor for the said Kate Hale, for the use and occupancy of herself and family, and was a necessary improvement of the lots of ground aforesaid and the real estate so owned by her.” * * * The claim of Samuel Brown set forth: “All of which carpenter work, lumber, flooring boards, mouldings, doors and work and materials were so done and furnished upon the order of said contractor, with (he consent and upon the authority and request of said Kate Hale, and also of her husband, J. M. Hale, and were necessary and convenient to the preservation and enjoyment of the said estate of the said Kate Hale.” The claim of McAdams 'did not aver that the work done and materials furnished were necessary, but simply set forth that they were “ furnished and done with the said Kate Hale’s (th,e wife of said J. M. Hale) authority and consent, and this lien is filed to Bind the said Kate Hale’s separate estate in said premises above described,” &c., &c. A number of objections to these mechanic’s liens were considered both by the auditor and the court below, and were brought before this court for review, but are not noted in this report, as they were not passed upon by this court. From the decree of the court reducing the amount allowed on the judgment and awarding it to the mechanic’s lien claimants, this appeal was taken.
95 Pa. 333Travellers' Insurance v. Heath (1880)
Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 337. Assumpsit by John Heath against the Travellers’ Insurance Company, of Hartford, Connecticut, to recover back money paid under an execution upon a judgment which was subsequently reversed by the Supreme Court. The insurance company, on January 30th 1873, brought an action of debt in .the Common Pleas, No. 2, of Allegheny county, on a bond given by Thorne, John Heath and Andrew E. Baum to the company. The company was a Life and Accident Insurance Company, and the bond dated July 25th 1870, on which the action was brought, recited that Thorne had been duly appointed agent of the company for the western part of Pennsylvania’, and that, as such agent, he would receive divers sums of money and other effects of the company, and it was conditioned that Thorne should promptly pay to it the amounts received from time to time, &c. Thorne acted for some time as agent, but, neglecting to pay over premiums collected by him, the company demanded the same of the sureties, Heath and Baum, and they not being paid, the action of debt was brought on the bond to recover the premiums for insurance which Thorne had received. On the trial of that cause in the court below, the jury found that Thorne had received, of the premiums due the insurance company, the sum of ¡§1847.08, and for this amount judgment was entered against Thorne, Heath and Baum. In that case,- Thorne and Heath and Baum defended on the ground that the Travellers’ Insurance Company, being a corporation of the state of Connecticut, had not complied with the Act of the General Assembly of this state, approved April 11th 1868, Pamph. L. 831, relating to insurance companies, in reference to the appointment of agents, &c.; and that, therefore, they could not maintain the action. The court below declined so to hold, and the cause was removed to this court by writ of error to October and November Term 1874; Heath, Thorne and Baum, .with sureties, entering into the usual recognisance in order to effect a supersedeas. This writ, on the 3d of November 1874, was non-prossed, and thereupon a remittitur was issued out of this court, and the record taken down to the Court of Common Pleas, No. 2. A writ of fieri facias was then issued out of the Common Pleas Court on the judgment against Heath, Thorne and Baum, and the money paid by Heath; the sheriff’s return on the writ being: “Money made, paid by John Heath.” Subsequently, another writ of error was sued out .to this cour.t at October and November Term 1875, a report of which case will be found in 30 P. F. Smith 28. This court there held that the insurance company could not maintain the action, because of its failure to comply with the Act of 1868, in taking out a license and filing the name of agents, &c., and reversed the judgment granting a venire. Heath then made application by petition to this court, setting forth the preceding facts, and asking for an order of restitution, which this court refused to grant him. The cause again came on for trial in the Common Pleas, No. 2, and was ruled on the decision of this court above referred to, that the insurance company could not recover. Heath then brought this action to recover the money he had paid on the fi. fa. issued as aforesaid out of the Common Pleas, No. 2. The declaration contained the common counts for money had and received and the plea was the general issue and payment. Upon the trial, before Collier, J., the defendant offered to prove that the money for which this suit was brought was paid by Heath on account of. moneys belonging to the defendant received by Thorne as their agent, for which Heath was liable as surety under the conditions of his bond. “ Objected to and objection sustained.” (10th assignment of error.) The defendant submitted the following points, to which are append the answers of the court. 1. That a payment without compulsion is a voluntary payment, and if they find the alleged payment by Heath to have been made without compulsion they must find for defendant. Ans. “Affirmed.” 2. That compulsion in this case, under the evidence, would be a levy upon the property of said Heath, and a payment by him to relieve his property from the levy; and if no such levy was made, and he, without that, paid the debt, your verdict must be for defendant. Ans. “ Refused.” (1st assignment.) 3. That the return of the sheriff, “ Money made ; paid by John Heath,” implies a voluntary payment, and that the return of the sheriff being of record is conclusive, and John Heath cannot recover in this case. Ans. “ Refused.” (2d assignment.) 4. That by the bond dated July 25th 1870, the said plaintiff, John Heath, in equity and good morals, undertook to pay to the Travellers’ Insurance Company the very moneys that he has paid, to wit: Such moneys as Robert Thorne should receive as their agent after the date of said bond, and not pay over, and if the jury find that the moneys paid by John Heath are such moneys, then he cannot recover. Ans. “Refused.” (3d assignment.) 5. That the entering into the recognisance for writ of error to Supreme Court by John Heath was a voluntary undertaking by him ; and, according to the condition thereof, he agrees to pay if the writ was not prosecuted with effect; and as that writ was not prosecuted with effect, and the money he subsequently paid was the condemnation money, and costs as therein provided, he cannot in this action recover the money so paid. Ans. “ Refused.” (4th assignment.) 6. That if the jury find that the moneys paid hy Heath to have been paid after the first writ of error in the Supreme Court was non-prossed, the reversal of the judgment and all subsequent proceedings cannot aid Heath in recovering the money back. Ans. “Refused.” (7th assignment.) 7. The plaintiff, John Heath, having failed to prosecute the writ of error with effect, in pursuance of the recognisance taken —which recognisance, and 'the records of the case in which it was taken, are now in evidence — the said John Heath became liable to pay the condemnation money and costs, and having done so cannot recover in this action for said money so paid. Ans. “Refused.” (5th assignment.) 8. The said John Heath having applied for a writ or order of restitution as per his petition in evidence, which order of restitution against the defendant company was refused, and it being for the same money for which this action was brought, the plaintiff could not recover. Ans. “ Refused.” (6th assignment.) 10. Under all the evidence in the case the plaintiff cannot recover. Ans. “ Refused.” (8th assignment.) In the general charge, the court, Collier, A. L. J., inter alia, said: “Now, if Mr. Heath paid that money voluntarily, without any execution having been issued against him, or without any threat of execution, he could not recover it back here; but if he knew the execution was issued, and that his property was bound, and there might be a levy made, and he be forced to pay the money, then if he would go and pay it, that would not be a voluntary payment; it would be compulsory.” (9th assignment.) The verdict was for plaintiff and after judgment thereon defendant took this writ and alleged that the court erred as set forth in the above assignments of error.
95 Pa. 340Palmer v. Gillespie (1880)
Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term 1880, No. 140. Debt by John J. Gillespie against Robert H. Palmer, to recover one-quarter’s rent due upon a lease. The defendant admitted that he was indebted to the plaintiff in the sum of $750 for one-quarter’s rent, but claimed to have a set off to the whole claim by reason of the following facts: That in January 1865, Gillespie was raising a fund to purchase certain oil land, and proposed to defendant to take a part therein. Gillespie was to take the title to the land in his own name and hold it in trust for the contributors in proportion to their respective contributions. Palmer contributed $750 in two instalments, one of $500 and the .other in $250, for each of which he took Gillespie’s receipts. One property was purchased by Gillespie and held in his own name for several years. It did not clearly appear that any of Palmer’s money went into this purchase. In regard to the investment, Palmer testified:— “ I didn’t ask him about it until about, I think, 1870 or 1871. There was a good deal of excitement at that time in oil lands in the neighborhood of Jones’s Run and White Oak Chute, and I inquired of him about it. He said, he didn’t think I was in it at all. Said he would look at papers ; that Mr. Wolf had the papers, and that he would look at them. He afterwards informed me that there was not enough stock or lands to go around. I told him I wanted him to settle it then. He said he would, but he thought he could buy me a share of equal value of a man that would come in. I let it go. I afterwards asked him about the man’s coming in. He said he hadn’t come in, but he expected him, that he would settle it, would pay it, would see to it, that it was correct. First he said he didn’t think the receipts were written by him, didn’t think I had a receipt for it, and when I brought the receipts to him he said he would pay it, settle it. Afterwards he delayed about it and promised he would settle it from time to time, and offered me various kinds of property that I would not accept at all, were of no value I supposed.” Gillespie denied these conversations as testified to by Palmer. He also testified that he did not know how much of Palmer’s money had been invested; that the question had been referred to a third party, but had never been decided ; that more money had been paid in than was necessary for the purchase, and some of it had been paid back to the contributors. The first point of the plaintiff which the court, Collier, A. L. J., affirmed, was as follows :— “ That even if the jury believe from the evidence that Mr. Palmer, the defendant, gave to the plaintiff'$750 to be invested, together with moneys of other parties, in real estate, which the said Gillespie was to hold in trust for said defendant and others, in proportion to amounts of money by them respectively contributed to the purchase-money, and if the jury believe that the plaintiff took title to said property and recognised the interest of defendant therein, but that when making a subsequent conveyance to another trustee a dispute arose as to the quantum of interest in the property belonging to the defendant, such state of facts give the defendant no right to recover back his purchase-money or any part thereof, nor is such defence available by way either of payment or set-off in this present action.” The court, inter alia, charged: “Then there is another matter, even if the proposition of the defendant is true. This transaction was more than six years before the bringing of this suit. It is necessary that Mr. Gillespie should make an actual promise to pay within the six years, should admit it, and say he would pay it before the defendant would be entitled to a verdict. * * * Now, the transaction being more than six years old at the time of the bringing of this suit, unless there was a promise to pay, it would not avail.” Verdict for plaintiff, and after judgment defendant took this writ and alleged that the court erred in the answer to the above point and in the foregoing portion of the charge.
95 Pa. 345Hensel v. Noble (1880)
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 106. Trover and conversion by Jesse Noble against Hensel k Reeg for one wagon wheel. At the trial, before White, A. L. J., the plaintiff testified that he called at the defendants’ shop in Allegheny city and bargained with them to re-tire one of the wheels of his wagon for $1.’50; that he called again when the wheel was done, and tendered to the defendants $1.50 and demanded his wheel; and that they ^refused to take the money and deliver the wheel, alleging that the contract was for the re-tiring of" two wheels at $3. The defendants testified and gave evidence that the plaintiff, who was a sewing-machine agent and not a customer of the defendants, called at their shop and bargained with the defendants for the re-tiring of two wheels, at $3 for the job; that they could re-tire two wheels for $3 while they could not re-tire one wheel for half that amount, as an odd sized iron was needed, and three bars would re-tire two wheels, while it would take or destroy two bars to re-tire one wheel; that the plaintiff left one wheel for repair, the defendants lending him one to use instead, and he was to call next day and leave the .other wheel; that they purchased three bars of iron and repaired one wheel, and welded, cut and bent the iron for the other wheel; that the plaintiff called the next day and tendered $1.50, and demanded the wheel, saying he would not have the other one repaired. The defendants refused to receive the money or to deliver the wheel, standing upon the contract as they alleged it to have been made. In the general charge the court, inter alia, said : “ That -if the parties did agree that the defendants would repair two wheels for the plaintiff for which the plaintiff was to pay the sum of $3, and if the plaintiff, after the defendants had repaired one wheel, came and demanded the wheel, and tendered a sufficient amount to pay for the repair of that wheel, the defendants were bound to give it to him. * * * That defendants had a right to retain the wheel until the price agreed upon for repairing that wheel, or a fair and reasonable compensation for the work done was tendered.” Verdict for plaintiff for $4.75, and after judgment thereon defendants took this writ, their assignments of error being the above portions of the charge.
95 Pa. 348Adams v. Pittsburgh Insurance (1880)
1, of Allegheny county: Of October and November Term 1880, No. 65. Assumpsit brought by the Pittsburgh Insurance Company against John S. Adams and Adam Jacobs, who survived James Collins, late owners of the steamboat “ Glasgow.” John S. Adams was the only one served.
95 Pa. 358Appeal of Louisa Rankin (1880)
185. Margaret Giffin, widow, died April 9th 1872, leaving to survive her a son, Samuel Giffin, two daughters, Emily Giffin and Mrs. Louisa Rankin, and the children of a deceased son, William.
95 Pa. 367Swisshelm v. Swissvale Laundry Co. (1880)
Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 154. Assumpsit by James Swisshelm against the Swissvale Laundry Company. The following facts, together with those stated in the opinion of this court, sufficiently state the case. On the 16th of November 1872, the plaintiff, by contract in writing of that date, agreed to sell and convey to the defendant a piece of land with the privileges described, and shortly afterwards the defendant finding the space too contracted for its purpose, enlarged its purchase by parol, and purchased from the plaintiff an additional piece adjoining the first and nearly the same size, and at same price as to the land, with a fixed valuation added for the buildings. Thereupon the defendant entered into the possession of both pieces, and erected its laundry buildings on both pieces indiscriminately. The purchase was made by S. Schoyer, on behalf of himself and others forming a laundry company. At date of purchase they had not secured a charter. Shortly after-wards the charter was procured, Schoyer made president, and the purchases ratified. The written contract was not sealed by a corporate seal, nor by the seals of the parties, except Schoyer, and he was purchasing for himself and others, but sealed only for himself.' The defendant failed to pay, and this action of assumpsit was brought for the purchase-money due. Before suit brought plaintiff executed a deed and tendered it to the defendant’s assignee (vendee at sheriff’s sale), who declined it; and on the trial he executed a second deed to the defendant, and tendered it on the trial of the case, requesting it to be filed for delivery on payment and securing the purchase-money as provided in the contract. By the direction of the court the jury returned the following special verdict: “ We find for the plaintiff in the sum of $2072.99, the amount due on the purchase under the written contract. We also find for the plaintiff the sum of $4324.24, the amount of the consideration upon the parol purchase declared upon subject to the opinion of the court on the question of law reserved, viz.: Whether, under the whole evidence, the plaintiff is entitled to recover either or both of these sums, and if the court shall be of opinion that the plaintiff is entitled to recover both sums, then judgment to be entered for the same; but if the court should be of opinion that the plaintiff is only entitled to recover upon the written contract, and not upon the second contract, or that the plaintiff is entitled to recover on the second contract and not on the first, in this form of action, their judgment to be entered accordingly; and if the court should be of- opinion that the plaintiff is not entitled to recover anything, their judgment to be entered for the defendant non obstante veredicto. The court, Collier, A. L. J., entered judgment for defendant non obstante veredicto, which was assigned for error by plaintiff, who took this writ.
95 Pa. 371Haslett v. Gillespie (1880)
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 132. This was a scire facias on a mechanic’s lien filed by F. M. Haslett against a certain “ factory building, mill, fprge or iron works” and curtilage, and against T. A. Gillespie'and others, owners or reputed OAvners and contractors, for certain “ materials, machinery and fixtures,” namely: a bolt-header and screw-cutter, &c., of the value of $640, furnished “ for and about the alteration, repairing and addition to said building, mill or manufactory.” At the trial, the plaintiff made out, as he alleged, a prima facie case under the Act of May 1st 1861, Pamph. L. 550, and rested. The Act of 1861 which Avas extended to the county of Allegheny by the Act of February 16th 1865, provides as follows :— “ That the said act, entitled, “ An act relating to the lien of mechanics and others, upon buildings,” approved the sixteenth day of June, Anno Domini one thousand eight hundred and thirty-six, together with the several supplements thereto, shall hereafter be held and taken to apply to debts contracted for work done or materials furnished for or about the repair, alteration of or addition to any house or other building, so that liens may hereafter be had for the payment of all debts contracted for work done or materials furnished for or about the repair, alteration of or addition to any house or other building, in the same manner as liens may now be had for debts contracted for work done or materials found for or about the erection or construction of any house or other building under the aforesaid act, approved June sixteenth, Anno Domini one thousand eight hundred and thirty-six, and the several supplements to said act: Provided, nevertheless, That this act shall not apply to debts, such as aforesaid, where the same are of less amount than twenty dollars: And provided, also, That this act shall apply only to Chester, Delaware and Berks counties.” The defendants moved for a nonsuit for the following reasons :— • 1. That the lien in this case is filed for materials, machinery and fixtures, furnished by claimant “for and about the alteration, repairing and addition to said building,” and the proof of plaintiff is that they only furnished machinery to defendants. ' 2. That the claim should have been filed for the machinery and against the machinery and not for additions, alterations or repairs to said building, 3. That the testimony of plaintiff shows that the building was erected for at least one year before the furnishing of the machinery in plaintiff’s bill, and does not pretend to show that the same was used or needed in the addition, alteration or repairs thereof. 4. That the lien, as filed, is against the whole building and grounds, whereas it should have been filed against the machinery alone, or against that part of the building where the machinery was situate, which should have been particularly described. The court granted the nonsuit with leave to the plaintiff to move the court in banc to take it off. A motion was made, when the court, Ewing, P. J., refused to take it off in an opinion saying:— “ The lien in this case is filed against the ‘ building, mill and manufactory ’ and the curtilage for machinery ‘ furnished- for and about the alteration, repairing and addition to said building, mill or manufactory.’ “ The evidence shows that the building and factory had been erected and was in full operation long before the machines were furnished. No change was made or in contemplation either in the building or arrangement of the factory, “ Two separate machines were sold by the plaintiff to defendants and placed in the factory; the machines so fixed as to be run by belting in use for the other machinery; easily removable at any time. “ We do not interpret any Act or Acts of Assembly which have been pointed out to us as covering this case. It is not such an alteration, addition or repairs to the building, &c., as is contemplated in the Acts of Assembly, giving a right to file a lien against the building and curtilage. If the lien can be maintained under this evidence, every item of repairs or addition to the machinery of a mill or factory gives the right to file a lien against the whole, although the entire repair amounts to but $20. We cannot so interpret the Acts of Assembly. “ It is claimed that the ruling of Common Pleas, No. 1, in the cases of Robinson, Rea & Co. and James B. Young & Co. v. Glass, Neely & Co., decided in 1876, would sustain plaintiff’s claim. We have examined the record in those cases and find that no such question was raised. Those cases were decided on motions for judgment for want of sufficient affidavit of defence. The liens alleged ‘ alterations and additions.’ The affidavits of defence did not deny that additions and alterations had beer! made to the buildings and mill. The denial was of the right to file a lien for the kind of materials furnished. “We would rule the same questions in the same way. “ This case also differs essentially from the case of Parrish’s Appeal, 2 Norris 111, where large, visible and important alterations and additions were made on the entire furnace.” The plaintiff took this writ and assigned for error the entry of ' the nonsuit and the refusal to take it off.
95 Pa. 376Fawcett v. Fawcett (1880)
1. AVhere the language of the charge as to the true character of the testimony tends to mislead the jury, it is error and a ground for reversal. 2. What evidence of a promise to pay within six years insufficient to take a case out of the Statute of Limitations.
95 Pa. 380Christy v. Sill (1880)
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 200. Ejectment by the heirs of William Sill against the Pittsburgh Savings Bank and others. William Sill, the ancestor of plaintiffs, was the owner of the property in dispute prior to April 1863. It was sold at April term of that year by the sheriff, on a judgment against William Sill to Elisha Beale for $9300, to whom a deed was made. Beale and wife conveyed to Jake Hill, on the 30th of March 1864, for an alleged consideration'of $10,000, and the deed was recorded June 18th 1864. The sheriff’s deed to Beale was acknowledged July 4th 1863. Suit was brought by the plaintiffs February 15th 1875, against Jake Hill, and served March 16th 1875 on him and on Ewing Cunningham, who was the alleged tenant of P. R. Bohlen. Abstracts of title were filed by the three parties and a plea in behalf of defendant; hut no further steps were taken in the cause until December 7th 1878, when the Pittsburgh Savings Bank, having acquired the title of Jake Hill at a sheriff’s sale thereof at March term 1875, asked and was granted leave to intervene pro interease suo. The cause was tried February 14th 1879, and resulted in favor of the defendants. A new trial was granted and resulted in a special verdict.' The Pittsburgh Savings Bank was a very large creditor of Jake Hill, and had loaned its money after he had acquired title to the property in dispute, and before the Sill heirs had set up any adverse claim. . They paid also $5000 in addition' for the property which was distributed to other creditors. At the sheriff’s sale to the bank, notice was given simply that the property was not Hill’s, but belonged to Sill’s heirs. It was understood that this claim of title was based upon the assertion that William Sill (who died in 1875), was in the military or naval service of the United States at the time of the sheriff’s sale of his property at March term 1863. The contention of the plaintiff in error was, that the sixth section of the Act of 22d April 1856 was a bar to recovery; and further, that the laches of the plaintiffs below in not preferring their claim for nearly twelve years, after knowledge of the alleged fraud on the part of Hill, the bank and other creditors having in the meantime acquired rights against Hill, also precluded a recovery. The jury returned a verdict for the plaintiffs, and also found the following facts in a special verdict: “That Jake Hill and Elisha F. Beale were acting in concert at the sheriff’s sale of April 27th 1863; that Beale was the nominal purchaser, but Hill paid the purchase-money, and was the real purchaser at that sale,; that the said Hill was guilty of false and fraudulent representations at the sale, that he was bidding in the property for the family, and by other fraudulent acts and representations, whereby he induced persons not to bid at the sale, and procured the property to be knocked down to him for less than others would have bid, less than it was worth and less than it would otherwise have sold for; that William Sill, the father of the plaintiffs, died on the 23d day of November 1865, and that he, during his lifetime, and his wife, before his death, had knowledge of fraudulent acts and representations of said Hill at the sheriff’s sale, by which he procured the property at less than its value. Subject to the opinion of the court on the question of law reserved, to wit, whether, upon the facts stated in this finding, the plaintiffs can recover in this action, brought more than five years after the death of William Sill, under the statute of 22d April 1856?” ' _ _ _ _ Subsequently the court, White, A. L. J., entered judgment for the plaintiffs, on the reserved question, in an opinion, inter alia, saying: “ The defendants claim that Hill stands on the footing of a trustee ex maleficio, and that that brings the case within the sixth section of the Act of 1856. Does he ? “ All the cases referred to by the able counsel in support of this position are, where the two parties stood in some confidential relation to each other, or had a mutual interest in the subject of controversy and one of them abused that confidence, or took advantage of his position to perpetrate a fraud upon the other. In this case there was no confidential relation existing between Hill and Sill; Hill owed no duty to Sill in reference to this property; his false and fraudulent acts at the sheriff’s sale wpuld not impeach his title or give any right of action to Sill, but for the Statute of 13 Eliz. That statute punishes him for his fraud; it declared his title ‘ to be clearly and utterly void, frustrate and of none effect,’ as to Hill and his creditors; it is the same as if no sale had taken place. Such is its effect as declared by repeated decisions of our Supreme Court: Gilbert v. Hoffman, 2 Watts 66; McKenna v. Fry, 6 Id. 137; Walter v. Gernant, 1 Harris 515; Abbey v. Dewey, 1 Casey 413; Sharp v. Long, 4 Id. 433. As Hill, therefore, does not stand on the footing of a trustee ex maleficio, the case does not fall within the Act of 1856. “ No doubt the case comes within the mischief intended to be remedied by the act. There is no good reason why the limitation of five years should not be applied to cases of this kind as well as to those embraced in the act. But we think the words of the statute do not embrace it, and cannot, by any fair and reasonable construction, be extended to it; to-do so would be rather legislation than judicial interpretation.” B. C. Christy, the receiver of the Pittsburgh Savings Bank, took this writ, and alleged that the court erred in entering judgment for the plaintiffs.
95 Pa. 388Gill ex rel. Rankin v. Henry (1880)
Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 182. In the court below this was a judgment wherein S. B. W. Gill, to the use of Isaac Rankin, was plaintiff, and Alexander Henry, defendant, entered on the 10th of December 1877, upon a bond with warrant of attorney, which, upon application of defendant, was opened for the purpose of defence, whereupon the defendant filed a plea of payment, and the case was tried upon this issue. The facts are sufficiently stated in the opinion of this court.
95 Pa. 394Davison's Appeal (1880)
1. The interest of a married woman in real estate cannot be divested xcept in the manner pointed out by statute, and she cannot be estopped acts or declarations, which, in the case of a feme sole, would operate as an estoppel. 2. Where land charged with dower is sold on a judgment immediately subsequent to the charge, the arrears of dower due at the time of the sale are discharged thereby : Dickinson v. BeyerJ 6 Norris 274, followed.
95 Pa. 398Cauley v. Pittsburgh, Cincinnati & St. Louis Railway Co. (1880)
1. Except at public crossings, where the public has a right of way, a railroad company has the exclusive right to its track, and it owes no duty to the father of a child of tender years trespassing thereon, nor to the child itself. 2. Parents who permit their children to trespass upon a railroad track are guilty of contributory negligence, and the fact that the trespass was without the knowledge of the parents is not material. 3. One writ of error cannot be taken to separate judgments in two actions in different rights but tried together on the same evidence, and if so taken writ will be quashed.
95 Pa. 403Einstein v. Jamison (1880)
Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 3. Scire facias sur mechanic’s lien issued by Leopold Einstein, trustee, against Daniel Jamison and Annie, his wife, owner, and Adam Miller, contractor, to recover the value of lumber furnished for the repair of a house and the building of an additional story on the kitchen attached thereto, belonging to Mrs. Jamison. The lot of ground on which the said building was erected was owned by Mrs. Jamison in fee, being conveyed to her by Mary J. Coates by deed referred to in the lien. The mechanic’s lien set forth that the materials were furnished and used for the repair of the said house and the building of an additional story on the kitchen ; that they were furnished and the repairs, &c., made by the authority and consent of Mrs. Jamison and for the reasonable and necessary repair and improvement of‘her separate property. The only pleas were coyerture, that she never contracted for the work, and that the same was done without her authority and consent. • There was no general' issue. The evidence was that Daniel Jamieson saw Adam Miller, the contractor, working at Mr. Ott’s house, which is near Mrs. Jamison’s, and at that place first asked Miller the cost of making the repairs and improvements for which the lien was filed, and after Miller had told him the cost, Jamison said, “I want to see my lady first,” meaning his wife. That afterwards, the contract was made in Mrs. Jamison’s house by Miller and Jamison — Mrs. Jamison being present part of the time. Miller did the work, and while he was doing it, the wife was present every day,, giving directions about the work, and when Miller did not do the work as rapidly as she wanted it done, she sent for him several times, and once went herself to his house to urge him to do the work, and promised to pay him. Einstein, the plaintiff, furnished the lumber for these repairs. The items of materials furnished dated from May 21st 1877 to September 3d 1877. Einstein had repeated conversations with Mrs. Jamison, both while the work was being done and afterwards, during which it was alleged she frequently promised to pay him for the material furnished by him. Some of the material she herself ordered from Einstein. From the time plaintiff first spoke to Mrs. Jamison until after this suit was brought, she always promised to pay his bill; and after the work was done, she paid him $5 on account. After evidence of the above facts, and giving in evidence the mechanic’s lien and bill of items attached thereto, the plaintiff closed. The defendant moved the court for a compulsory nonsuit, on the grounds : 1st. That the plaintiff had not established a contract -with the wife; and 2d. That he had not proved that the work done was necessary. The plaintiff contended that the evidence was sufficient to submit to the jury whether Mrs. Jamison had or had not authorized her husband to contract for the repairs; and as to the second ground, that it was not in issue; it being alleged in the mechanic’s lien that the work done was necessary, and the pleas not denying this faot, it was conclusively admitted by the pleadings and not a question for the jury. The court refused the motion, and held that both grounds were questions for the jury to pass upon. The defendants then opened their case and offered testimony. Mrs. Jamison denied that she had authorized her husband to have the repairs made, and that she promised Mr. Einstein to pay for the materials before the work was done, but it was not denied that she promised to pay for the same after the work was done. The following were among the points submitted by the plaintiff, with the answers of the court thereto. 5. Even if Mrs. Jamison is not liable for the whole claim, she is liable for any materials which were furnished by the plaintiff on her order, if any. Ans. “ This point, as it reads, is refused, because it is too narrow ; she must not only have ordered them but promised to pay for them, and they must have been necessary.” 2. It is not necessary to prove by direct evidence that the husband acted as the wife’s agent, but facts tending to show that the husband acted in relation to the necessary repair and improvement of her separate estate, with the knowledge and by the authority of the wife, will, if believed by the jury, justify the finding that He was acting as her agent and on her behalf. Ans. “ The word ‘ tending,’ is not well employed here, because I cannot say to you that evidence tending to show a fact justifies you in finding it; it must not only tend to show it, but must satisfy you from certain facts offered in evidence that he was acting as her agent. If there are facts developed in the case which satisfy you that- her husband was acting with the knowledge and by the authority of the wife (not knowledge alone), she authorizing him to contract for her, then you would be justified in finding that he was acting as her agent.” 8. If the jury believe from the evidence that Mrs. Jamison was present while the repairs and improvements on her property were made, that she gave directions about the work, ordered part of the materials herself and promised to pay for the materials furnished, this is evidence from which the jury may find that her husband acted as her agent in making the contract, and if the jury so find, then Mrs. Jamison is liable, and the verdict should be for the plaintiff. Ans. “ I suppose the word ‘ furnish ’ in this point is not accurately selected, I presume it means promised to pay for the materials she had ordered. The latter part of the point cannot be affirmed, whatever I may say as to the rest, because there is another important question, that is, if they were necessary. As to this point, the presence of Mrs. Jamison while the repairs and improvements on the property were being made, does not in itself indicate any contract on her part, particularly as it appears that she was living in the house and could not very well have avoided being present; ‘ that she gave directions about the work,’ mere suggestions a wife might make would not in itself indicate a contract; ‘ that she ordered part of the materials herself,’ would bind her as to the materials she herself ordered and promised to pay for. Even assuming you find that the husband was building this addition to the house or making these repairs, and she chose of her own motion to order certain materials, and promised to pay for them, then she would be bound for them, if you also find that they were necessary, because the mere ordering of the materials, and the promise to pay for them, unless they were necessary, would not be enough. Also, the clause, 1 promise to pay for the materials furnished,’ if the contract was not made by her, a subsequent promise by her to pay for the materials would not bind her. I must leave this point as I have stated it to you, without any more particularity.” In the general charge, the court, Bailey, A. L. J., inter alia, said: “ The evidence must satisfy you that the husband was acting as her agent. * * * A married woman must make the contract in order to be held for necessary repairs or improvements on her separate property. If the contract was the contract of the husband, a pi’omise to pay by her after the contract was made will not bind her, because, apart from other reasons, it is only a promise to pay the debt of another, and within the Statute of Frauds, and even if she could bind herself by such a promise, it must be in writing. * * * In this case the fact is that the contract was made, at least, through the husband, if not by him, and in contracts made with respect to family affairs the presumption of the law is (unless something to the contrary is shown), that they are made by the husband for himself, and that the wife has nothing to do with them, just as in the case referred to by counsel (Berger v. Clark, 29 P. F. Smith 340,). for medical purposes, there was no obligation upon her to pay it, and her separate property cannot be charged with it, though to a certain extent she got all the advantage of the service, and it was manifestly necessary for her to have it.” Yerdict for defendants, and after judgment thereon plaintiff took this writ, and alleged that the court erred in the answers to the above points and in the foregoing portion of the charge.
95 Pa. 408Allegheny County Workhouse v. Moore (1880)
Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 198. Case by Basil D. Moore against the Allegheny County Workhouse and Inebriate Asylum. The managers of the defendant institution were made a corporation and body politic by an Act approved the 23d of March 1872, the first section of which provides that the managers shall be a corporation and body politic in law, by the name, style and title of the Allegheny County Workhouse and Inebriate Asylum, and by that name shall have perpetual succession, with power to make and use a common seal and to change the same at pleasure, to establish, erect and manage the workhouse and asylum in the county of Allegheny, to make contracts, to sue and be sued, and by that name and title he capable in law of purchasing, selling, leasing and holding real estate in the name of Allegheny county for the use of said corporation, that may be necessary in carrying on the operations of the institution and to the profitable employment of the inmates. The board of managers consists of five citizens of the county of Allegheny, annually appointed by the inspectors of the Allegheny county prison. At the time of the alleged employment of the plaintiff by the said corporation, the board of managers consisted of the following-named citizens, viz., Hugh McNeil, president, James P. Fleming, George W. Hailman, O. J. Schultz and Ur. Thomas Shaw. John L. Kennedy was superintendent. The plaintiff, a barrel broker, alleged that in- the month of October 1877, he was employed by defendant to sell or procure a purchaser for all the barrels the defendant would manufacture during the year 1878, and that, in- pursuance of said employment he did procure a purchaser for all of the barrels it would manufacture during that period. The defendant denied the employment of the plaintiff. The latter, to support his claim, testified that Hugh McNeil, the president of the board of managers, and John L. Kennedy, superintendent of the defendant, authorized him to sell the barrels, and, in pursuance of the authority thus given, he went to Charles Lockhart, president of the Standard Oil Company, and tried to get him to purchase the barrels for the year 1878 at $1.30; Lockhart said it was too high, and that he would not give that price; Moore then asked him what he would say at $1.25: he said he would consider it, and consult others about it. This Lockhart communicated to the superintendent by letter of November 13th 1877, requesting him to submit it to the board, which he did, but the board took no notice of or action on it; no answer was sent to plaintiff. On the 19th of November 1877, Moore wrote another letter to the superintendent, stating that he had seen Lockhart, and that he would say yes, if barrels were offered at $1.20, and demanding a positive answer on Wednesday, “yes or no.” The superintendent submitted it to the board, when the following action was taken in regard to it, as appears by the minutes of the board of that date, to wit: “A proposition was received from B. D. Moore, in relation to a contract for supplying him with barrels during the coming year. It was on motion referred to monthly committee, with power to act.” The monthly committee consisted -of Hailman, Schultz and Fleming. No answer was made to the letter, or further notice taken of it than what appears in the above minutes. The board met on December 4th 1877, and the committee in regard to making contract for barrels was continued, with power to act. This committee, on December 18th 1877, reported to the board of managers as follows, viz.: “ The committee in regard to contracting with the Standard Oil Company for barrels, say “that-they had agreed to contract with them to furnish 4000 barrels per week, during the coming year, at $1.20 per barrel, without any commission, the Standard Company to have the privilege of furnishing iron, if at as low a price as can be had elsewhere. The iron to be of Pittsburgh manufacture. All the conditions about deliverihg to be the same as last year, except the barrels at Standard, 1 and 3, and at Eagle and Petrolia refineries, to be delivered in building, instead of on wharf.” The report was accepted, approved, and the superintendent, with the committee, was instructed to enter into a contract with the Standard Company in accordance with the above report. In pursuance of the authority of the board, the above committee, in connection with the superintendent, entered into a contract with the Standard Company for the sale of all barrels made during the year 1878, at $1.20 per barrel. The defendant below had been, through barrel brokers, selling its barrels to the Standard Company (every year) for several years prior to 1877, knew of its existence and the fact that it was yearly in need of barrels, so that what the plaintiff did the defendant alleged was not instrumental in introducing the Standard Company to the defendant, and what he did was done without authority from the defendant, as those whom he alleged employed him had no authority to do so. Both McNeil and Kennedy denied positively that they had eve* employed him to sell the barrels of 1878, or told him that they were authorized by the board to do so. At the trial the plaintiff being on the stand, and having testified that Mr. Hailman was one of the managers, that he was then deceased, went on to state what he had said to him (the witness) when defendant’s counsel objected to declarations of Mr. Hailman, as incompetent and irrelevant. Objection overruled. (1st assignment of error.) The plaintiff submitted, inter alia, the following point, which the court affirmed: 2. That if they believe from the evidence that Moore, the plaintiff, was employed by the defendant to find a purchaser for the barrels of the defendant, 208,000, for delivery during the year 1878; that he procured a party who was willing to give $1.20 per barrel, and that the defendant afterwards closed the contract with said party at that price, this is sufficient to warrant them in finding that the plaintiff was the procuring cause of the sale, and if they so find, the plaintiff is entitled to recover. (7th assignment.) The following points of defendant, which the court refused, constituted the second and third assignments of error respectively: 1. That under all the evidence in the case, the verdict should be for the defendant. 2. That the plaintiff having failed to show that either Kennedy, the superintendent, or McNeil, the president of the board, had any authority to make the contract claimed, there can be no recovery. Verdict for plaintiff for $2749.76, and after judgment defendant took this writ, and alleged that the court erred as set forth in the abofe assignments of error.
95 Pa. 413Weir v. County of Allegheny (1880)
Where a defendant has not wrongfully trespassed upon or withheld the property or money of the plaintiff, or has not obtained any advantage by any wrong done, and has not been guilty of fraud, and especially where the liability arises wholly by virtue of a statute, and no provision for interest is made therein, interest cannot be allowed as part of the damages, either as a matter of law or at the discretion of the jury.
95 Pa. 418Watson v. Commonwealth (1880)
Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1879, No. 144. Indictment of Alvin and George Watson for burglary. The defendants were jointly indicted with Humphrey Campbell and W. H. Franks for a burglary alleged to have been committed at the house of Isaac Irwin, in Allegheny county, on the night of October 16th 1877. The defendants alone were tried, the indictment against Campbell having been nol. prossed and Franks in the penitentiary, and no preliminary hearing had as to him. Upon the trial it was proved, beyond all doubt, that a burglary had been committed, as alleged, and that Campbell had been an active participant in it. The Commonwealth’s witnesses identified Campbell as one of the burglars, beyond all doubt, independent of his own testimony. The controversy was as to the presence and participation of the Watsons. A^ to Alvin Watson, Mrs. Irwin testified that she recognised him as one of the men who were in the house, but there was no testimony positively implicating George other than that of Campbell, the accomplice. For the purpose of corroborating Campbell, the Commonwealth offered and the court admitted, under exception, testimony as to the conduct and acts of Campbell in the absence of the defendants, and with which the defendants were in no wise connected other than by Campbell’s testimony. ' The court also admitted evidence that Franks, the other defendant, who was not on trial, was acquainted with the Irwin premises; had worked there; that he was then in the penitentiary, and that he had shortly before served a term in the same place, and that he was a brother-in-law of George W. Watson. The defendants called a number of witnesses to prove the whereabouts of both the defendants on the night in question, and also testimony to show that Alvin, at that time, wore his beard differently so as to entirely change his appearance. The defendants were convicted, and after a motion for a new trial was overruled were sentenced, when they took this writ, and made the following assignments of error, which will show the questions raised in the case: 1. The court erred in admitting evidence of Campbell as to Franks’s whereabouts at the time of trial. 2. In admitting evidence of Campbell as to Franks’s acquaintance and relationship with the Watsons. 3. In admitting evidence of Mrs. Margaret Irwin as to previous knowledge of and acquaintance with Franks, and that he had worked at Mr. Irwin’s before that time. 4. In admitting paper as follows:— Commonwealth of Pennsylvania v. W. H. Franks. Westmoreland county, August Sessions, 1875, convicted and sentenced to two years imprisonment, &c., on the twenty-third day of October 1875, in Western Penitentiary, Penna. Received of John Guffy, High Sheriff of the county of Westmoreland, this twenty-sixth day of October 1875, the body of the above-named prisoner. Attest: John Miller, Clerk. Edward S. Wright, Warden. And testimony of Sheriff Guffy under the following offer: Commonwealth proposes to prove by Sheriff Guffy that he is acquainted with the handwriting of Edward S. Wright, the warden of the Western Penitentiary in Allegheny City ; and furthermore that he took to the prison and delivered to the warden the body of W. II. Franks, one of the alleged robbers in this case. These for the purpose of showing the whereabouts of Franks. 5. In admitting evidence of Peter Dressier that the W. H. Franks who was convicted in Westmoreland county, was the same man who is charged in this indictment. 6. In refusing the following: On the part of the defence, it was moved to strike out all the evidence that has been given in this case connecting Franks with this transaction. Per Curiam. — For the reason that the testimony alluded to has already been received under objection, and that any error that has been committed is already in such shape as may be the subject of review, the motion to strike out is overruled. 7. In admitting evidence of Mrs. Campbell and H. O. Campbell, under the following offer:— Commonwealth proposes to prove by this witness, to be followed by other evidence, that Humphrey Campbell returned in the morning after the burglary to his own home; that he would not come into the kitchen where his wife had a light, but knocked at the door and asked for a basin of water to be brought out to him, and that then he washed, but not until his wife had glanced at him and saw some black on his face, and that the water left in the basin wás itself discolored and blackened. For the purpose of corroborating Humphrey Campbell. 8. In admitting evidence of Mrs. Campbell as to preparations made by her husband for the robbery — the defendants not being in any wise connected therewith. 9. In admitting in evidence the following abstract of a record Commonwealth v. Humphrey Campbell and Bartholomew Foley. In the Court of Oyer and Terminer of Westmoreland county, Pennsylvania, No. 1, May Session, 1852. Indictment, burglary. True bill, May 29th 1852. Tried by a jury and verdict not guilty. Abstract from the record. Attest: May 1st 1879. J. W. Wilson, Clerk. (Seal of the Court of Oyer and Terminer of Westmoreland Co.j Defence objected to this evidence as incompetent and irrelevant, and furthermore, if it were entirely competent, the facts cannot be proven by this abstract, but must be proven by a properly certified copy of the entire record. 10. In admitting evidence of Peter Dressier, under the following offer:— Counsel for Commonwealth propose to prove by the witness on the stand, the county detective, that he went to the state of Kansas armed with a requisition from the governor of Pennsylvania upon the governor of Kansas, for the body of George W. Watson, one of the defendants in this case ; that having'received full authority of the governor of Kansas, he proceeded to Watson’s house and made the arrest. Whereupon a writ of habeas corpus was issued at the instance of Watson to test the officer’s right to bring him to Pennsylvania under the warrant; that that question was argued elaborately for more than one day by counsel on each side, and that the judge remanded the prisoner to Mr. Dressier to proceed to Pennsylvania with him. He proceeded on his way a certain distance when another interference was had by telegraph at the instance of George W. Watson; and to prove that Mr. Dressler’s course was greatly marked by interference; that he had Watson chained to his arm ; that he was compelled and did leave the direct line of the railroad and passed across the country with the prisoner where no telegraph could reach him, for the purpose of getting out of Kansas, and in that way he reached Pennsylvania. Objected to as irrelevant and incompetent; that if an applica7 tion was made to the courts in Kansas for a writ of. habeas corpus, it is a matter of record there, and can only be proved by the record itself; further, that if the application was made, it shows simply that the defendant, George W. Watson, was availing himself of his legal right to inquire into the validity of his arrest. Counsel for Commonwealth withdrew all the offer except the last part about the telegram, and after the habeas corpus was decided and witness was on his way back. Per Curiam. — We will receive all the evidence suggested after the right of the prisoner had been passed upon by the court on the first application for the writ of habeas corpus. 11. The court erred in charging the jury as follows :— If, therefore, in' the first place the Commonwealth has satisfied you beyond a reasonable doubt, I mean to say in looking at the evidence, the Commonwealth’s, it has satisfied you beyond a reasonable doubt that the defendants were present at and participating in the burglary in question, it will be your duty to convict, unless the defendants, having set up the defence of alibi, have satisfied you that this, their defence, is well taken. What I want to have you understand is, if you come to the conclusion and are satisfied beyond a reasonable doubt that'the defendants were then and there participants in the burglary, then it will be your duty to convict, unless the defendants have made out their case of alibi or that they were elsewhere, and in that case it will be your duty to acquit. 12. In charging as follows : “ The case, I need not say to you, whilst containing a great deal of direct testimony, has in it a large element of what is known to the law and lawyers as circumstantial evidence, that is, evidence resting upon detached circumstances, isolated pieces of evidence, all of which are put into the case in the estimation of the Commonwealth with the belief and for the intent to prove certain facts. I need not say that very often circumstantial evidence is more to be depended upon than absolute assertion. Because witnesses may falsify, may testify to that which is not true, but certain circumstances, certain physical facts which cannot be gainsaid, and which of course could not lie, often compel conclusions where words uttered would not. Now these elements are in the case, and without expressing any opinion upon them, we leave it to you to say in the light of these circumstances, in the light of this spoken testimony coming from the mouths of witnesses, and upon a careful consideration of all the facts in the case to state whether or not these parties are guilty or innocent.” 18. In charging as follows, viz.: “ The defence, outside of the allegation that the Commonwealth has not made out a case, and which it is for you to say, is an alibi.” The eighth point of the defendants, which the court affirmed, was as follows: 8. That the Commonwealth must make out the guilt of each of the defendants, beyond a reasonable doubt; and if, from the evidence in the cause, they have a reasonable doubt as to the identity of the defendants, or either of them, they must acquit as to such defendant.
95 Pa. 426Pittsburgh & Lake Erie Railroad v. Robinson (1880)
1. When a jury assess damages for the taking of lands by a corporation ;y are to value the property without reference to the person of the owner the actual state of his business. . the Uie 2. It was error to refuse to permit a railroad, company, in an action to recover damages for taking lands of the plaintiffs for the construction of its road, to prove that a siding could be conveniently constructed upon the property of the plaintiffs, and to show how such construction might be made useful to the premises. 3. That the plaintiffs refused to avail themselves of the advantages which may have been afforded them by the road, is of no moment, for the question is not as to the disposition of the owners of the property, but whether or not the facilities afforded by the improvement have advanced the market value of the property. 4. Under our Acts of Assembly the owners of mills and manufactories may of right connect their private sidings with the railroads in their vicinity, and the fact that such right exists in them may largely advance the market value of their property and affect the question of damages for taking a part thereof for railroad purposes. 5. In mitigation of damages a railroad company may show that it is practicable to make switch connections with a railroad which crosses the land of claimant for damages. 6. While the general advantage resulting as well to the public as to the property, which is the subject of assessment, is not to be considered in estimating the benefits to that property, yet anything and everything connected with the general improvement which tends to increase its value or usefulness to such property may be considered. 7. Though the knowledge of a witness of the value of lands in the neighborhood may have rested solely upon a few purchases made by the railroad company, and from no other sales or purchases in the real estate market, he has some knowledge upon which to base an opinion and the value of that opinion is for the jury.
95 Pa. 432Reichenbach v. McKean (1880)
1. The sheriff sells only the title of the defendant in an execution, and the real owner, besides trespass against the sheriff, may maintain replevin or trover against his vendee. 2. In the case of a pawn or pledge there is a special property in the pawnee. It is liable to be sold on an execution against the pawnor but subject to the rights and interests of the pawnee. 3. The taking of the property out of the possession of the pawnee by a sheriff’s sale does not divest his property, and is in no sense a relinquishment of his lien, and a bona fide purchaser from the sheriff’s vendee takes it subject to said lien.
95 Pa. 435Murdy v. McCutcheon (1880)
Error to Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 272. This was an action of debt brought before a justice of the peace under the Act of July 7th 1879, Pamph. L. 194, by James McCutcheon and his wife, for use of the latter, to recover upon a joint contract. The following was the form of the summons issued by the * justice: “ County of Allegheny, ss. — The Commonwealth of Pennsylvania to James Morford, or next constable: You are hereby commanded to summon George Murdy and John Murdy to be and appear before the subscriber, James Grubbs, Esq., a Justice of the Peace, in and for said county, on Saturday, the 18th day of October 1879, between the hours of 1 o’clock p. M. and 2 o’clock p. m., to answer Jane McCutcheon and James McCutcheon, her husband, for use of said Jane McCutcheon, -in a plea of debt not exceeding three hundred dollars. Hereof fail not. -Witness the hand and seal of the said Justice of the Peace, in the county aforesaid, the. eleventh day of October a. d. 1879., “James Grubbs, [d. s.]” “ Endorsed. Served by leaving a true copy of the within with the first of the within named defendants and making known to him its contents, also a copy of affidavit of plaintiff, on Monday, October 13th 1879.” ' In default of an appearance judgment was entered generally against both defendants. A certiorari from the Common Pleas was taken, and the following, among other exceptions, filed to the record: 1. The judgment of the justice is in error, because the summons issued is insufficient, illegal and defective, in that it does not state the place where the defendants below are to meet to answer the action brought against them. 5. The record discloses a joint but not a several indebtedness against the two defendants, and a judgment against one cannot be sustained, nor a judgment against both, only one having been served. 8. The judgment of the justice is erroneous and void in toto, as it is a general judgment for the plaintiff and against both defendants, only one of whom appears to have been served. The court, Stowe, P. J., dismissed the exceptions and affirmed the judgment, when the plaintiffs took this writ, and alleged that the court erred in this action.
95 Pa. 437Dewhurst v. City of Allegheny (1880)
1. An entire Act of Assembly is not necessarily unconstitutional because the title fails to give notice of some particular matter contained, therein. The rule has been to sustain that portion of which the title gives notice. 2. One who promotes an improvement made under a special Act of Assembly by a municipality — petitions for the same and is active in setting the machinery in operation by which the work is done — is estopped from denying the constitutionality of the act. 3. The Act of May 10th 1871, providing for the improvement of Troy Hill Road in the city of Allegheny, is constitutional so far as citizens of said city are concerned, although that portion of said act which related to Reserve township had previously been declared unconstitutional by this court. 5. The lien filed for the assessments for said improvement is valid although not filed until more than six months after the completion of the work, the time prescribed by said act within which they must be filed. 6. The report of the viewers appointed to assess the benefits is conclusive under said act, when approved by the city councils, and cannot be traversed in a trial of an action to recover the assessments.
95 Pa. 444Scott Township v. Montgomery (1880)
1. Townships, like other municipalities, must keep their public roads in a safe condition. 2. If a public road through a township is so dangerous -by reason of its proximity to a precipice that common prudence requires extra precaution, in order to secure safety to travellers, the township is bound to use such precaution and the omission to do so is negligence. 3. Although a township is not a corporation proper, such as a city or borough, nor invested with power to tax itself for road purposes beyond one per cent, on the county valuation, it is, nevertheless, bound to erect walls or barriers along the sides of its roads where they are unsafe. 4. In an action to recover damages from a township for injuries received by reason of the unsafe condition of one of its roads, the court instructed the jury “ that if in view of all the evidence they find for the plaintiff, they should allow in estimating the damages not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconvenience he is subjected to, and for the pain and suffering he has already endured bodily and mentally, and which he is likely to experience, as well as the pecuniary loss he has sustained and is likely to sustain during the remainder of his life, from his disabled condition Held, that the measure of damages was correctly stated. Ohio Canal Co. v. Graham, 13 P. F. Smith 290, followed.
95 Pa. 447Campbell's v. Patterson (1880)
1. What is not sufficient evidence to move a chancellor to decree a rescission of a contract on the ground of fraud. 2. Where the answer to a bill in equity isu’esponsive to the bill and denying all its material averments, the duty is imposed on the plaintiff of sustaining his bill by the evidence of one witness beside himself, or bycircumstances equivalent to a second witness. 3. Where one, though not nominally a party to a bill in equity, is a party to the contract sought to be avoided thereby and files a deed to take effect on its rescission, he is not a disinterested witness. 4. Before the passage of the act making parties competent witnesses, the evidence of one disinterested witness was not sufficient to authorize a decree against the answer of a party. The spirit of the rule still remains, requiring proof of the facts charged and denied, to be clear and satisfactory by the undoubted evidence of two witnesses or one witness and the equivalent of a second. 5. Per Trtjnkey, J. — It would be a dangerous precedent to rule, that upon the sole testimony of the dissatisfied parties to an executed contract, which had not turned out so well as they had expected, they may of right demand its rescission by a chancellor.
95 Pa. 455Lightcap's Appeal (1880)
1. Where executors unite in an account they are conclusively presumed to be liable for cash balances, shown by said account, but they are not liable for uncollected securities which appear in said account and for which credit is taken therein. 2. Where securities are taken in the name of executors and afterwards col lected by one of said executors the others are not liable to the legatees therefor, in the absence of proof of culpable negligence. 3. Whether when a cash balance is shown by a joint account and a decree therefor made against the executor it is a lien against bis real estate, not decided.
95 Pa. 461Wetter v. Kiley (1880)
Error to the Court of Common Pleas of Clarion county: Of October and November Term 1880, No. 74. Assumpsit by Henry Wetter, to the use of the First National Bank of Clarion, against J. B. Kiley, upon the following promissory note:— $2000. Clarion, Pa., Feb. 5th 1878. Ninety days after date I promise to pay to the order of Henry Wetter, two thousand dollars, at the First National Bank of Clarion, Pa., without defalcation for value received. If not paid at maturity waiving exemption, inquisition, appeals, without stay of execution, and with five per cent, attorney’s commission. (Signed) J. B. Kiley. Endorsed as follows:— For value received, I assign the within note to the First National Bank of Clarion, and guarantee the payment of same at maturity. “ (Signed) H. Wetter. After suit brought, the plaintiff entered a rule of reference under the compulsory arbitration law, and on the 12th of October 1878, obtained an award against the defendant for $2153.90, the amount of the note and interest. On' the 24th of October 1878, the defendant appealed from the award. On the 5th of November 1878, the defendant pleaded non-assumpsit, payment with leave, &c. It was admitted by plaintiff’s attorneys, that on the 5th of November 1878, the plea in this case, as it appears of record, was written by them down to the words “non-assumpsit,” and handed to defendant’s attorneys for the purpose of obtaining a plea in the case as it appears upon the record. The defendant’s attorney added all the words after the word “ pleads,” and the same day filed same in the case. On the 14th of November 1878, the plaintiff moved to strike off and quash the appeal, because the right of appeal was waived by defendant, as appeared by the copy of the note filed with the declaration under rule of court, On this motion a rule to show cause was granted, and afterwards, on the 10th of April 1879, discharged. At the trial, before Jenks, P. J., it appeared that the note in suit was the renewal of a note given by Kiley to Wetter for the accommodation of the latter,5 with out any consideration whatever, and that Wetter had expressly agreed that he would take care of the note. Kiley stated the transaction in the following language : “ Major Wetter came along and said he had bought the Sligo tract, was using a great deal of morrey, and would like to borrow my note, and I loaned him the note. He said I would not hear of it again, and that when the note came due he would attend to it.” The plaintiff’s third point, which the court refused, was as follows :— “ That if the defendant, Kiley, executed and delivered to H. Wetter the note on which suit is brought for the express purpose of enabling Wetter to negotiate and obtain the money on it from any one to whom Wetter could negotiate it, and Wetter, in pursuance of such express understanding, negotiated it to the bank for full value, the bank is entitled to recover the amount of the note and interest.” The defendant’s fourth point, which the court affirmed, was as follow's:— “ Such want of consideration as mentioned in third point would fatally affect the note in the hands of the equitable transferree, the First National Bank of Clarion; and if the said bank, before it expended its money in the purchase of said note, was not induced to take it by the declaration of Kiley that it was a valid instrument and would be paid at maturity, there can be no recovery in this case.” In the general charge, the court, inter alia, instructed the jury : “ You will remember that the equity lies chiefly in this agreement that Wetter would see that the note was paid or protected. The bank would take the first note subject to that agreement, and the defendant could plead it against Wetter, and could plead it against the bank.” Verdict for defendant, and after judgment plaintiff took this writ and alleged that the court erred in discharging the rule to show cause why the appeal should not be quashed, in the answers to the above points, and in the foregoing portion of the charge.
95 Pa. 466Walbridge's Appeal (1880)
Where one purchases a property at sheriff’s sale under a levari facias ' issued on a judgment obtained on a mechanic’s lien, filed under the provisions of the Act of June 16 th 1836, Pamph. L. 696, he may institute the summary proceedings provided by the Act of June 16th 1836, Pamph. L. 780, and its supplement of May 24th 1878, and thei’eby recover possession of the premises.
95 Pa. 472Elsey v. McDaniel (1880)
Error to the Court of Common Pleas of JSrie county: Of October and November Term 1880, No. 195. Ejectment by the heirs of Orvaline Jane Millar against Daniel J. McDaniel, to recover a lot of ground in the city of Erie. At the trial, it appeared that Orvaline Jane Millar. in 1839, when unmarried, became seised of the lot in dispute as part of her distributive share of her father’s estate. In 1840, she married John H. Millar, and in 1852, lie deserted his wife and family without making provision for their support, and was absent ten years. In 1864 Orvaline died, and in 1877 her husband, Millar, died. On December 17th 1855, without the joinder of her husband, Orvaline had sold the lot in question to McDaniel and executed to him a deed therefor. The following were the 4th and 5th points of the plaintiffs, with the answers of the court thereto :— 4. The deed of a married woman in which the husband does not join is void, and conveys no title to the purchaser. Ans. “ This point is affirmed as the general rule of law. The Act of 1855, however, provides for an exception to this recognised .general rule, and the question for the decision of the jury in this case is, whether, under the evidence here submitted, the deed here relied upon by defendant conveyed title or not.” 5. The Act of May 4th 1855, does not make such a deed valid unless the married woman has first been decreed a feme sole trader, under the provisions of the fourth section of said act. Ans. “ This point is refused. If, in point of fact the grantor, Orvaline Jane Millar, was, at the time of the making of the deed by her to the defendant, within the terms of the second section of the Act of May 4th 1855; that is to say, if the- jury believe from the evidence that at that time Millar had' neglected or refused to provide for his -wife, or had deserted her, such neglect or refusal to provide for her, or such desertion having continued for some years before the execution of the deed in question, then the decree was not necessary to give such deed validity.” In the general charge, the court; Galbraith, P. J., inter alia, said: “ Before the passage of the Act of May 4th 1855, the deed of a married woman, without the joinder of the husband, was absolutely void. But by the provisions of that act the wife, deserted by the husband, or whose husband neglects or refuses to provide for her, may sell her land and make a valid conveyance-without the joinder of her husband. By the fourth section of that act it is provided that creditors, purchasers, and others may with certainty and safety transact business with a married woman under, the circumstances aforesaid; she may, on application to the Court of Common Pleas of the proper county be decreed á feme sole trader, and a certificate granted to her of such fact, and such certificate, it was provided, should be ‘conclusive evidence of her authority.’ [This decree, as we construe the act, was not an indispensable preliminary to her acting for herself in the disposition of her property. It merely leaves the burden of proof upon the party desiring under her deed to show affirmatively the existence of the facts necessary to bring her within the terms of the law. In the present case, therefore, it is for the jury to find whether the defendant has established affirmatively, as against the proof given by plaintiff, that at the date of the deed here in question, Mrs. Millar had been and then was deserted by her husband, or that he had neglected or refused, and was at that time still neglecting or refusing to provide for her.”] Verdict'for defendant. Plaintiff took this writ and alleged that the court erred in the answers to the above points and in the portion of the charge embraced in brackets.
95 Pa. 474Watterson v. Reynolds (1880)
It was provided in a lease of land that the lessee “ shall hold the same and enjoy and use all the rights and privileges of real ownership as in fee-simple” as long as he shall carry on a certain iron furnace, the lessee to pay the taxes and also a royalty to the lessor for every ton of iron ore quarried: Held, that under the terms of said lease the lessee had the right to quarry limestone on said premises for use in said furnace, in the manufacture of iron.
95 Pa. 477Bowers v. Bowers (1880)
Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1880, No. 33. Replevin by Solomon Bowers against Jane Bowers and Henry Bowers, for certain timber cut and removed from a tract of land, &c. The facts set forth in the opinion of this court, together with the following points and answers of the court, sufficiently state the case. The plaintiff presented the following points which the court affirmed: 1. That if John and Solomon Bowers as partners owned and used the standing timber on the whole tract, and the whole business of the partnership was the cutting and removing the timber, and in 1859 they dissolved partnership and divided the timber, being the assets of the firm, by a line run on the ground, and Solomon took all the timber north of the line as his share, and the timber replevined wras cut off Solomon’s part of the timber assigned to him on dissolution, the verdict of the jury should be for the plaintiff. 2. That if the timber north of the line upon dissolution between Solomon and John Bowers, was to be removed by Solomon as fast as John should want to clear the land, the timber would be personal estate, and the Statute of Frauds, as between the parties and their representatives, would not affect any division made between them. The defendants submitted the following points, to which are appended the answers of the court: 1. That timber growing upon land is a part of the freehold, and a parol contract for the sale thereof is subject to the Statute of Frauds and Perjuries. Ans. “ We answer this point in the affirmative.” 2. The plaintiff claiming a right to the timber in this execution by virtue of an alleged parol contract with John Bowers, deceased, over twenty-five years since, is estopped from asserting any right to the same against his widow and heirs, the Statute of Frauds and Perjuries being a bar to the plaintiff’s recovery. Ans. “ If the plaintiff does claim timber by parol sale and not otherwise, under the circumstances mentioned in this point the conclusion stated would follow. For further answer we refer to the plaintiff’s first and second points and answers thereto.” 3. If plaintiff actually made a parol contract with John Bowers, deceased, in his lifetime, for the standing timber, and paid him the full value thereof, the remedy was in the Orphans’ Court for the specific performance of contract. Not taking his legal course to establish his right he cannot do so in this action, and the verdict must be for the defendants. Ans. “ If the evidence shows there was no more than a parol sale of timber growing upon land there can be no recovery. For further answer referred to plaintiff’s^ first and second points and answers thereto.” 4. The court is requested to charge the jury, In order to constitute a partnership it is necessary for plaintiffs to establish the terms of partnership. Loose declarations of a party are not sufficient. Ans. “ Mere loose declarations that there was a partnership would not be sufficient. We leave the question to the jury under all the evidence whether there was a partnership or not. Consider the whole testimony.!’ 5. If the jury believe that John Bowers was in possession of the whole lot with the timber previous to an alleged arrangement with Solomon, the arrangement, if true, was for an interest in land and within the Statute of Frauds and Perjuries, and must be in writing. Ans. “We cannot, without invading the province of the jury, determine what the arrangement was, whether it was simply a parol sale of the timber, or whether the rights of the plaintiff are founded on an arrangement made at the dissolution of a partnership.” Verdict for plaintiff, and after judgment thereon defendants took this writ and alleged that the court erred in the answers to the above points.
95 Pa. 481Galbraith v. Walker (1880)
79. Assumpsit by Thomas M. Walker against William A. Galbraith and Charles Brandes. This was a case stated, and was filed by agreement of the parties as if a judgment had been obtained before an alderman and an appeal taken therefrom. The following facts were agreed upon for the opinion of the court: The claim of the plaintiff is as follows: In No. 169, May Term 1873, of said court, the defendants had issued a summons in partition.
95 Pa. 483McNish v. Reynolds, Lamberton & Co. (1880)
Error to the Court of Common Pleas of Venango county: Of October and November Term 1880, No. 276. Assumpsit by W. C. McNish, to the use of F. R. Martin, against J. B. Reynolds, S. H. Lamberton and R. Colbert, trading as Reynolds,-Lamberton & Co. At the trial, before Taylor, P. J., it appeared that in April 1877, W. C. McNish agreed to buy of George Van Vleck five thousand barrels of'oil, on or before December 31st 1877, at seller’s option, at the rate of $2.51J per barrel. To secure the faithful performance of his contract, McNish deposited with the defendants' $2500 as a margin. It appeared from the testimony'of MeNish, that on June 21st 1877, Van Vleck, through his broker, one Bettes, tendered the oil at Titusville to MeNish, when the latter informed him that he could not take the oil at that time and pay for it, but could if he was given a little more time. Bettes then referred him to Van Vleck, and on the same day McNish went to Oil City and saw Yan Yleck, when, as McNish testified] the following interview was had:— “ I told him that owing to the failure of the bank, my funds being all locked up in the bank I needed a little time to make different arrangements, which, if'he would grant, I would take the oil. He asked me how long I wanted. I told him I could arrange for thirty days. He replied that if I would take the oil up, he would give me the month of July to take it in. I told him I would arrange to take the oil in the month of July, and that was agreed upon, and we separated.” McNish further testified that this tender was not withdrawn. Van Vleck, on the contrary, testified that when McNish declared that he was unable to take the oil, and asked for time, he, Van Vleck, had simply withdrawn the tender. The contract was assigned by McNish to B. E. Martin, July 18th 1877, and on the last day of July 1877, A. H. Bronson, the agent of Martin, went to Oil City with the money to pay for and take the oil. He called on Bettes, who declined to have anything to do with the contract, and Yan Yleck was not to be found, he being, as it was afterwards disclosed by the evidence, at Buffalo, N. Y. About November 8th 1877, Bettes again tendered certificates to Bronson, and the latter alleging that he had performed or offered to perform on behalf of McNish, declined to accept, and the certificates were sold. Martin’s agent, Bronson, demanded the $2500 margins from Reynolds, Lamberton & Go., but they having been indemnified by Yan Yleck, refused to pay to Martin, and subsequently paid them to Yan Yleck. This suit was then brought to recover said amount, with interest. The third point of the defendants, which the court affirmed, was as follows:— If the tender of June 1877 was not withdrawn, the rights and liabilities of the parties were fixed by the tender and failure to accept the oil and pay for it, and could not be changed except by a new contract founded upon a new consideration. In the general charge, the court, inter alia, said :— “ If we remember aright, the plaintiff swore that the tender of June 21st was not withdrawn. You will remember the evidence for yourselves, and not as we remember it, and we instruct you as matter of law, if that be true he cannot recover in this case, without a new and sufficient consideration, of which there is no evi dence here. But if you believe the defendants that the tender was withdrawn, and if you believe the balance of what the plaintiff says about the contract, that he should have the right to tender the money during the month of July, if you are satisfied from the -weight of evidence that this is true, then he might recover upon the evidence of the defendants.” Verdict for defendants, and after judgment thereon plaintiff took this writ and alleged that the court erred, -inter alia, in the answer to the above point and the foregoing portion of the charge.
95 Pa. 487Wagner v. Elliott (1880)
1. The principle which governs in all cases of substitution is one of equity merely , and is to be carried out in the exercise of a proper equitable discretion, with a due regard to the legal and equitable rights of others. 2. A. having a judgment against B., which was a lien on his land, issued an execution and levied on personal property which was claimed by others, who gave bond, and an issue being framed under the Sheriff’s Interpleader Act, the verdict was for claimants, which verdict was subsequently set aside. Afterwards another judgment-creditor of B. issued execution against his real estate, and the same having been sold, A.’s judgment was paid in full from the proceeds. They however proved insufficient to pay the judgment of G., another judgment-creditor of B. whose judgment was postponed to that of A. H., the surety of B., in the obligation on which the judgment of G. was obtained, paid to G. the balance of his judgment and then asked the court to subrogate him to the rights of A., as defendant in the above feigned issue : Meld, that he was not entitled to subrogation.
95 Pa. 492Franklin Fire Insurance v. Kepler (1880)
Error to the Court of Common Pleas of Forest county: Of October and November Term 1880, No. 56. Assumpsit by Jacob M. Kepler against The Franklin Fire Insurance Company, on a policy of fire insurance, to recover for a loss. The 15th section of the policy provided: “ This policy will not cover unoccupied buildings (unless insured as such), and if the premises insured shall be vacated without the consent of the company endorsed hereon, * * * this policy shall cease and determine.” The property insured was destroyed by fire. The evidence showed that this fire occurred on Sunday morning, October 27th 1878. Plaintiff testified that on Wednesday preceding that day he went to Clearfield county; that he received a telegram notifying him of the death of a friend, and he left for tile purpose of attending the funeral, and returned on Monday, following the fire. Kepler himself was the only occupant of the house. He testified that he made it his home and residence, and that he had no other home or residence at the time. It was claimed on the part of the company,, that this absence, with no one in the house during the time was a violation of the 15th clause of the policy, and that it was substantially an unoccupied building. The following were among the points of the defendant:— 1. The undisputed facts being that at the time the plaintiff’s dwelling-house was destroyed by fire, no one was living in it and no one had been living in it for four days prior to that time, and no notice of that fact having been given to the defendant and its consent obtained to such non-occupancy, the house was vacant within the meaning of the contract between the parties, as contained in the policy on which this suit is brought, and there can be no recovery. 2. The occupancy of a dwelling-house consists in living in it, and if the plaintiff' absented himself from the said house from Wednesday prior to the fire, and was still absent when the fire occurred, which was Sunday morning, during, which time no one occupied the house, it constituted such a vacation as was contemplated in the contract between the parties, and the verdict should be for the defendant. 3. The existence of an intention in the mind of the plaintiff to return and resume the occupancy of the house under the circumstances, makes no difference in determining the question of vacancy. The court answered these points in the general charge, as follows :— “We. say to you, that if the plaintiff left upon an emergency for the purpose of attending a funeral, and he was absent for that purpose, and when he had accomplished the purpose for which he left, he returned on the Monday following the fire, then the absence under these circumstances is not a breach of clause 15th of the policy; that it was not an unoccupied "building within the purpose and meaning of that clause of the policy.” Verdict for plaintiff, and after judgment thereon, defendant took this AYrit and alleged that the court erred in the portion of the charge noted.
95 Pa. 494Van Vliet v. Conrad (1880)
1. Where amotion for the reargument of a rule for anew trial is made on the same day on which the rule is discharged it continues the rule, and judgment cannot be'entered on-the verdict. 2. On the 8th of July 1879, a president judge discharged a rule for- a new trial. On the same day a motion for a reairgument of the rule was filed. On the next day judgment was entered on the verdict. On November 19th 1879, the reargument was had before the associate judges, in the absence of the president judge, and a new trial granted on certain conditions as to costs and security which were complied with. On March 19th 1880, the president judge of another district, holding a special court, vacated the order for a new trial and directed the plaintiff to collect his judgment: Held, that this was error; that the' order discharging the first rule and the motion for the rehearing of that rule were legally contemporaneous, and the effect was to postpone the final consideration of the rule for a new trial and annul the order then made, and the new trial having been subsequently granted by a court having full power to do so, and the defendant having complied with the conditions imposed upon him he could not be deprived of a right thus lawfully acquired by an attempt of the court to reverse its own order.
95 Pa. 497Steele v. Hull (1880)
1. A sheriff’s deed was offered in evidence and the record of its acknowledgment. It was objected that the deed, though acknowledged, had not been executed and that the record of the acknowledgmentwas only secondary evidence, not admissible without proving the loss of the deed : Held, that it was not error to admit the record where, as here, the deed was produced and offered in evidence and any irregularity in the execution was cured by the acknowledgment. 2. Per Shakswood, C. J. — “ What the irregularity was does not appear, as we have not been furnished with a copy of the deed which of itself would be a sufficient reason for disregarding this assignment of error, as it is the settled rule of practice in this court never to reverse for the admission or rejection of a written document, a copy of which is not spread upon the paper book.”
95 Pa. 500Indiana County Bank's Appeal (1880)
Appeal from the Court of Common Pleas of Indiana county: Of October and November Term 1880, No. 161. Appeal of the Indiana County Deposit Bank from the decree of the court distributing the proceeds of the sheriff’s sale of 'Aie real estate of J. B. Morris, John Cary and John Couch. The facts were found by the auditor, John Conrad, Esq., as follows: “ The real estate of the defendants out of which the fund for distribution was realized, was sold in the following order, to wit: October 24th 1879, sold 158 acres as property of J. B. Morris, to J. U. Gillespie, for $2306. October 24th 1879, sold 65 acres as the property of J. B. Morris, to J. U. Gillespie, for $600. October 24th 1879, property in Clayville, as property of J. B. Morris, for $155. October 24th 1879, sold 120 acres as the property of John Cary, to William Davis, for $2000. October 24th 1879, sold 200 acres as property of John Couch, to Indiana County Deposit Bank, for $2200. December 9th 1879, sold 160 acres as the property of John Couch, to Indiana County Deposit Bank, for $2605, which makes total amount for distribution, $9866. Of this $4928 was paid into court, but it was understood by the parties that, for the purpose of distribution, the entire amount should be considered in court. “ From the parol evidence produced before the auditor, the fact is established that in the judgment of Levi McGregor to use of J. U. Gillespie v. John Couch, J. B. Morris and Daniel Couch, No. 120, December Term 1876, John Couch is the principal debtor, and J. B. Morris iq only bail, but the docket entries and the records do not show that fact in the entry of the case. Counsel for judgment-creditors claimed that, as J. B. Morris was only bail in the above-stated judgment, and the judgment was paid by sale of the real estate of J. B. Morris, he would be considered as subrogated to the rights of the plaintiff in the writ, and equity would apply the fund on judgments filed by J. B. Morris’s creditors. Your auditor is of the opinion that J. B. Morris acquired no right to that fund, and, consequently, his judgment-creditors could acquire none except such as they had at the time of the sale of the property. Had he paid off the judgment before the sale the principle of subrogation contended for would undoubtedly be true, but in a distribution of proceeds of sheriff’s sale, claims of lien-creditors remain as at time of sale, the liens being divested by the sale, the lien-holders are turned over to the proceeds, and no lien or right thereto can be afterwards acquired. : Douglass’s Appeal, 12 Wright 223. Able arguments were made by counsel on both sides of the questions in issue, and numerous-authorities were; produced. But your auditor holds a secret equity of this nature could not be enforced. No lien-holders would be safe, and there would be nothing so certain as the uncertainty that would be occasioned by the adoption of such a principle. It cannot be said that J. B. Morris, the surety, has paid the judgment until this distribution is made and the report corifirmed by the court. There is nothing in the opinion of your auditor to sustain the exceptions filed to the special returns, and they are, therefore, overruled.” Exceptions were filed to this report, when the court filed the following opinion : Four hundred and seventy-four dollars and seven cents of the fund raised by the sale of the real estate of Morris was taken to pay a debt in which Couch was principal and Morris surety. This would give Morris or his individual creditors a right of subrogation against Couch for the amount so paid. “ We understand the auditor to find as a fact that the real estate of the defendants was sold at the same time. The funds in the hands of the auditor are treated 'as real estate, and in the absence of some overpowering equity would have to be so applied as to extinguish liens according to their priority. Had the auditor commenced in his distribution with the funds raised by the sale of the real estate of Couch, the money raised by the sale of real estate of Morris would have been so applied as to pay exceptant’s judgments. The equities of the parties should be carefully considered. The judgments of Gillespie v. Morris, 572 and 573 of September Term 1875, were entered some six months prior to the entry of the Indiana Bank judgments. The former judgments (so far as these funds are concerned) are against Morris alone. The latter judgments are against Couch, Cary and Morris. Out of the Morris fund $5574.07 was tahen to pay the judgment immediately prior to the Gillespie judgment mentioned, in -which. Morris was but the surety of Couch. Under these circumstances in equity, Gillespie should be subrogated to the rights of plaintiff in judgment of Levi McGregor, for use, against Couch and Morris, No. 120, December Term 1879, and out of the funds raised by the sale of Couch’s real estate, there should be applied to the judgment of Gillespie v. Morris et al., No. 572 and 573, September Term 1875, the sum of $574.07. “ The cases of Lathrop’s Appeal, 1 Barr 512 ; Morris v. Oakford, 9 Barr 498, and Gearhart v. Jordan, 1 Jones 325, fully, as we think, justify the correction of the auditor’s report.” A decree of distribution was made in accordance with this opinion, from which this appeal was taken.
95 Pa. 504Stern's Appeal (1880)
1. An administrator permitted the business, in which the decedent had been a partner, to be carried on by the surviving partner, and the result was a profit and increase in value of the firm assets. When the business was finally closed and the real and personal property sold, the firm was found to be insolvent. It appeared also that the firm was in fact insolvent at the time of the decedent’s death. There was no property of the decedent other than his interest in the firm : Held, that there was no reason for surcharging the administrator, he not having adventured or lost in the business any estate, real or personal, of the decedent 2. The administrator was properly allowed credit for expenses of administration and ¡jjilOO for services.
95 Pa. 508Brunswick & Balke Co. v. Hoover (1880)
Error to the Court of Common Pleas of Venango county: Of October and November Term 1880, No. 180. Trespass by John M. Brunswick and others, trading as the J. M. Brunswick & Bailee Co., against C. M. Hoover, J. H. Windsor and John W. Windsor. On the 28th of January 1878, the plaintiff company by their agent, H. F. Corbin, entered into the following contract: Oil City, Pa., January 28th 1878. Andrew E. Russell has this day ordered of The J. M. Brunswick & Balke Co., through H. F. Corbin, agent, subject, however, to -the approval of The J. M. Brunswick & Balke Co., four (4) carom tables : style * * * (here follows description of tables, &c.) Price ($1650.) sixteen hundred and fifty dollars. Five old tables at $875. Terms ($375) three hundred and seventy-five dollars, cash, balance in twelve payments of $75 each, payable in the twelve following consecutive months, with interest at the rate of ---per annum. . Payment to he secured by first lease and fire insurance on said tables. It is understood that the title to the property described in this contract shall remain with The J. M. Brunswick & Balke Co. until the notes and chattel lease are fully executed by the purchaser, and that under no circumstances shall any claim be made as owner until the settlement is so completed. Tables to be shipped by A. & G. W. R. R. to Oil City, “ will write” when ready, and the freight payable by the purchaser. Settlement to be made on delivery of tables at office of express company, Oil City, Pa. The J. M. Brunswick & Balke Co., [seal.] Per H. F. Corbin, Agent, [seal.] The tables were duly forwarded to Oil City, and on February 19th 1878, Russell paid the freight therefor and removed the tables to his billiard rooms. The following agreement was then entered into: “ This agreement, made and entered into this 19th day of February 1878, by and between The J. M. Brunswick & Balke Co., parties of the first part,*and A. E. Russell, of Oil City, of the second part: Witnesseth, That the parties of the first part have leased, and do hereby lease to the said party of the second part, all and singular the goods, chattels and personal property mentioned and described in the following schedule (here follows description), for the term of twelve months from the 19th of February to the 19th of February 1879, for the sum of $967, with interest (in addition to the sum of $375, which has this day been paid as rent, the receipt of which is hereby acknowledged by the parties of the nrst part), payable in twelve payments of $80.58 each, to wit: The first note falling due on March 19th 1878, and the remaining eleven notes on the 19th day of each consecutive month thereafter. 1 “ And the said parties of the first part covenant with the said party of the second part, that they have good right to lease said goods, chattels and personal property in manner aforesaid, and that they will suffer and permit said party of the second part (he keeping all covenants on his part as hereinafter contained), to possess and enjoy said goods, chattels and personal property without hindrance or molestation from them, or any person claiming by, from or under them. “ And the said party of the second part covenants with the said parties of the first part, to hire said goods, chattels and personal property, and to pay the rent therefor as aforesaid; that he will not injure, misuse or deface said property, ordinary wear, fire and other unavoidable casualties excepted. Also, that he will not assign this lease, nor keep said property in any place other than at Windsor block in the town of Oil City, county of Yenango, and state of Pennsylvania; also, that he will keep said property insured in an amount to be approved of by the said parties of the first part, to wit: in the sum of $967, and the loss, if any, payable to the parties of the first part, for the amount of rent which may remain due for the use of said property. The sum received by said parties of the first part as insurance, over and above the sum which may remain due as rent, shall be refunded to the said party of the second part. “ Provided, however, and it is further agreed that if the rent shall remain unpaid ten days after the same shall become due and payable as aforesaid, or if said party of the second part shall assign his lease, or shall injure, misuse or deface any portion of said property, or shall keep said property in any place other than that designated in his covenant aforesaid, or shall fail to keep said property insured in manner aforesaid, then his lease shall thereupon expire and terminate, by virtue of this express stipulation therein, and the parties of the first part may, at any time thereafter, enter in and upon the premises where said property is kept, stored or in use, and the same have and possess as of their former estate, and all payments of rent which shall have been made by the said party of the second part, previous to the breach of any of the conditions, covenants and agreements aforesaid, shall be forfeited to said parties of the first part. “ And the parties of the first part covenant and agree that, upon the payment of the rent in manner aforesaid by the party of the second part, they will give to said party of the second part a good and sufficient bill of sale of said goods, chattels and personal property. “And it is understood and agreed between the parties hereto, that the stipulations and agreements aforesaid, are to apply to, and bind the heirs, executors and administrators of the respective parties.” The cash alluded to in the above lease was paid by Russell, and the notes drawn. On May 28th 1878, J. H. and J. W. Windsor obtained a judgment against Russell, a writ of fieri facias was issued, and Hoover, the sheriff, levied on the tables and sold them to the Windsors. The company then brought this suit. The defendants claimed that the lease and the other papers above recited were but one transaction, and should be construed together, and that they constituted a sale. The plaintiffs contended that the tables were held under the lease, and that the other papers were preliminary and were all merged in the lease, but if they were all construed together, they constituted a bailment. The court, Taylor, P. J., inter alia, charged : “ After certain preliminary arrangements were made between the parties, certain negotiations looking forward to a final sale, on the 28th of January 1878, a paper was executed which, in our opinion, states the contract between these parties, when it was submitted to the plaintiffs in the suit, and approved by them. That it was done is evidenced by the fact that, under the contract the possession of the property was changed. The billiard tables and fixtures were sent, in pursuance of this contract, to Oil City. This contract, in our opinion, is the contract between the parties, although it provides upon its face for certain matters to be performed thereafter, to wit: The execution of a lease which the plaintiffs here claim was the final contract between the parties. We cannot agree with them in that; we think that this was the contract between the parties, and that the lease was executed in pursuance of this contract therefor, as well as the delivery of the possession of the property. That being so, we instruct you, that under the papers in this case, as the parties have chosen to make this a question of law for the court — we instruct you, that under the papers in this ease, this was a conditional sale, and that the title to the property passed at the time of its delivery in Oil City, and the consummation of the contract by the delivery of the property and the execution of the lease therefor; the title to'the property passed, so far as creditors were concerned. * * * Under the papers, then, we instruct you — and under the evidence in the case — that the title to this property passed to Russell, so far as creditors of Russell were concerned, upon the delivery of the property and- the execution of this paper., called a lease, and it was subject to be levied upon in his possession by the creditors of Russell, and the defendants having levied upon it as the property of Russell and sold it as his property, plaintiff cannot recover in this action. They are not trespassers. Your verdict will be for the defendants.” Yerdict and judgment for defendants. Plaintiffs then took this writ and alleged that the court. erred, inter alia, in the above portion of the charge.
95 Pa. 513Connolly v. Miller (1881)
1. In the case of a conditional verdict in ejectment a writ of habere facias possessionem, is not, of course, as in ordinary cases of judgment in ejectment, "but can only be issued by leave of court, and the party asking for the same must show to the satisfaction of the court that he is justly entitled to it. 2. In ejectment to compel payment of purchase-money the court has the power to extend the time of payment as made by a conditional verdict, and to supply just and reasonable conditions omitted in the verdict.
95 Pa. 518Lloyd's Appeal (1880)
Appeal from the Orphans’ Court of Cambria county: Of October and November Term 1880, No. 126. Appeal of Harriet P. Lloyd, widow, and others, administrators of Thomas J. Lloyd, deceased, from the decree of the court confirming the report of the auditor appointed to distribute the funds in the hands of said administrators. Thomas J. Lloyd, the decedent, was a lumber merchant, and carried on this business for many years previous to his death, on the 6th of March 1878. For about six years previously he had D. H. Kinkead in his employment as clerk and superintendent, who, as such, had authority to receive and pay out money. On the 14th September 1875, the parties made a settlement, and Kinkead was found to be indebted to Mr. Lloyd in the sum of $1286.85, for money of his employer retained by the appellee in excess of his salary to that daté. For this amount Kinkead gave to the decedent his judgment note, bearing date the day of the settlement (September 14th 1875), and payable one day after date: on which note judgment was entered in the Common Pleas of Cambria county on the 8th of June 1876. Kinkead continued in the employment of decedent until on or about the 22d of May 1876. At this time, and without previous notice, he left the service of the decedent. Two or three days afterwards he returned to the office of his former employer, when the parties entered into a parol agreement that Kinkead should resume his services at a salary of $1200 per annum, which was to be paid to him-as fast as earned. At the time he resumed his service (24th or 25th of May 1876), he was indebted to the decedent the amount of the note previously mentioned, ........ $1286.85 Interest September 15th 1875, .... 53.61 $1340.46 The appellants contended before the auditor that the salary earned by Kinkead from the time of settlement (September 14th 1875) to the 22d of May 1876, the time he left, and before the parol bargain was made, less the payments made on account, should be applied as a set off or credit on the judgment; that the contract of the 24th or 25th of May 1876, that the salary of the appellee should be paid as he earned it wras entirely prospective. Kinkead contended that this agreement was also retrospective in its terms. The auditor found that the parol contract was retrospective and awarded to the appellee the whole of his salary, deducting payments made on account; to which report the appellants excepted, and the exceptions being overruled and the report confirmed absolutely, this appeal was taken therefrom.
95 Pa. 521Detrick v. Sharrar (1880)
1. To take a parol sale of land out of the operation of the Statute of ikauds, the vendee must take actual, open, notorious and exclusive possession of the premises in pursuance of the contract, and make such improvements thereon as cannot be compensated in damages. 2. Where a demurrer to a bill in equity is sustained it is simply a decision that the complainant has not set out a case which entitles him to relief and not a decision upon the merits, and hence it cannot be put in evidence in a subsequeut proceeding on the same cause of action to bar the complainant’s right to relief or recovery.