author: Chief Justice Agnew

text:
    Wilson versus Allegheny City.
    1. An Act of Assembly authorized the councils of a city to grade, improve, &c., streets, &c., and assess the cost on property abutting on such streets. A chartered toll-road within the city was, with consent of the corporation, graded by the councils. Held, that property abutting on it was not liable to be assessed for the cost.
    2. The power to assess the cost of improvement on owners abutting on streets is confined to those which the city is empowered to improve, and relates to public streets, not to private toll-roads.
    3. A contract with the road company to allow the city to grade their road does not give the city, power to assess the cost of the improvement on abutting owners.
    4. Municipal liens rest upon the law alone. The power to assess the cost jof improvement as a lien cannot arise from benefit to the abutting owner.
    5. A municipal lien is an adverse right given by law against the will of the citizen, and, unless plainly given, cannot take his property or money.
    6. The laws relating to improving streets, &c., in Allegheny city, considered ' and construed.
    October 11th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 103.
    This was a scire facias on a municipal claim issued by the city of Allegheny against James Wilson, to April Term 1874 of the court below.
    The claim was filed, March 13th 1874, for $900.90 against a lot beginning at the corner of the Perrysville road and a sixteen-foot alley, and along said road westerly 165 feet to lot of Simon Drum, &c.
    The road referred to as the Perrysville road is the “ Allegheny and Perrysville Turnpike Road,” constructed under an Act of Assembly of February 27th 1849, Pamph. L. 299, subject to the provisions of the General Turnpike and Plank-road Law of January 26th 1849, Pamph. L. 10; 2 Br. Purd. 1429. The act of incorporation authorized the construction of a turnpike or- plank-road from the north line of the city of Allegheny at the end of Federal street, to extend towards the borough of Erie seven miles, with power to extend it further, and with power to erect gates and collect tolls when three miles of the road should be completed; the road was constructed as a plank-road, and tolls collected up to the time of this suit.
    By Act of April 9th 1867, Pamph. L. 979, the boundaries of Allegheny City were extended so- as to take in territory in which Wilson’s property was situate, and to embrace about two miles or more of the plank-road; the property against which the claim is charged is on the plank-road about three-quarters of a mile from the old city line. By Act of April 17th 1869, Pamph. L. 1168, the councils of Allegheny City were authorized to purchase the rights of all the various chartered companies for the portion of their roads lying within the limits of the city, upon such terms as might be agreed upon.
    The Act of March 31st 1870, Pamph. L. 717, consolidated the previous acts relating to Allegheny City, and included within its limits all the territory which then constituted the city. All ordinances, regulations, &c., in force in the city, and not inconsistent with the act, were to remain in force until altered, modified or repealed by councils. By Act of April 1st 1870, Pamph. L. 751, the councils were authorized to lay out, widen, extend, &c., the streets of the city, to grade, pave, &c., the same, and to levy and collect the’value of property taken or damages done by assessment on the properties benefited thereby, and to levy and collect the cost of grading, paving, &c., from the owners of property abutting on “said streets,” &c., thus improved; the assessments levied to be first liens on the properties assessed.
    On the 13th of May 1871, Pamph. L. 818, an act was passed enacting:—
    Sect. 1. That whenever the councils of the city of Allegheny shall deem it for the public interest that the said city should control so much of any turnpike or plank-road as lies within the limits of said city, and that the same should be freed from toll, then the said councils may direct the city solicitor to institute proceedings therefor, and the said solicitor shall present a petition to the Court of Quarter Sessions setting out the facts; whereupon said court shall appoint three discreet citizens, who shall proceed to view and appraise so much of any turnpike or plank-road as lies within the limits of said city, and report to said court what amount shall be paid by said city therefor; said court shall have power to approve, to modify, correct, or quash the report of said viewers, or appoint new viewers, with like power to approve, modify, correct, or quash their report.
    Sect. 2. That whenever the amount to be paid shall have been finally determined, and the same paid, or secured, or tendered to the officers of said turnpike or plank-road, then so much thereof as lies within the limits of said city shall pass under the control of said city, as a street thereof, and all toll-houses shall be removed therefrom outside the city limits.
    In 1872 the councils passed an ordinance for opening and grading Buena Yista street, which connected with the plank-road; to make an easier grade at the connection it became necessary to lower the grade of the plank-road at that point. An agreement was therefore made between the city and the plank-road company, by which the company “gives consent to the entry upon and grading of said road for said purposes by said city, as per profiles in the city engineer’s office, and said city agrees On its part to carry on the work on said road so as not to interrupt travel, and to replace the planks removed by said city in as good condition as when removed, and to grade said road at both sides of its intersection with the grading of said street, so as to prevent any abrupt change in the grade of said road. And it is further agreed that the city will assume all responsibility in case of accidents to travel on account of said grading, or in case of action for damages by property holders from change of grade of plank-road.”
    On the 17th of April 1878, the councils passed an ordinance for grading the plank-road between the head of Buena Yista street and the east line of Wilson’s property, a distance of 330 feet. The city took up the planks, graded the road and replaced the planks; the grade was reduced in front of Wilson’s property and was not an injury but a benefit to him. No proceedings-were had under the Act of 1871 to purchase or condemn any part of the plank-road.
    The case was tried December 7th 1874, before White, J.
    The plaintiffs having given evidence to sustain their claim, rested.
    The defendant testified that he paid toll every three months ; there was a toll-gate on each side of his property; when he moved to the property it was not within the city limits; the' road company kept up the road and the gates as before the city was extended. There was a walk laid by the city on his property in 187 0, for which he paid an assessment.
    Plaintiffs, in rebuttal, gave evidence that defendant saw the grading every day as it was going on and made no objection to it; also that defendant frequently requested the city engineer to change the grade of the road opposite his property, saying that if the grade were changed it would be a great favor to him ; under the approval of the councils the grade was changed according to his request; the change increased the expense. There was evidence that he, with another property owner adjoining him, requested that the plank-road might be graded, and in consequence of their request the agreement was made with the plank-road company.
    The court charged :—
    “ This case turns on the- question of law whether the city had power to grade the planlc-road and assess the cost upon the abutting properties, under the general Act of Assembly providing for the improvement of the streets of the city. There are no material facts in dispute. There is some conflict in the testimony as to what Mayor Drum and the defendant said in the street committee, in the way of requesting the work to be done. There is no allegation or testimony that the defendant presented a formal petition to the councils or that committee, asking to have this grading done. Nor is there any evidence or even allegation, that he promised to pay for it. He requested the grade to be lowered at his property, which increased the expense, and perhaps it may be inferred that most, if not all, the work done opposite to his property was done in consequence of what he said to members of the street committee. But if the city had no legal right under the Acts of Assembly to grade this portion of the plank-road, and assess the properties abutting thereon with the cost, I cannot see that such request on the part of defendant would give the city a right to file a lien therefor. This is a sci. fa. on a municipal lien, and must be sustained by an Act of Assembly authorizing it. The defendant might be liable to the city in an action of assumpsit, and yet the city might not have the right to enforce the collection of her claims by a municipal lien.” * * *
    The court further instructed the jury: “ That the plaintiffs are entitled to recover the amount of the assessment on defendant, with interest, subject to the opinion of the court in banc on the question of law reserved, to wit: whether the city, under the Acts of Assembly and the city ordinances in evidence, and the undisputed facts in the case, had a legal right to grade the plank-road from the head of Buena Yista street to the east line of defendant’s property, and assess the cost thereof upon the properties abutting thereon.”
    The verdict was for the plaintiff for $1012.05.
    The court in banc afterwards entered judgment on the verdict for the plaintiff on the reserved question.
    The defendant took a writ of error.
    The error assigned was, entering judgment for plaintiff on the reserved point.

      A. M. Brown, for plaintiff in error.
    The 5th article of the amendments to the Constitution of the United States was to prevent the general government from taking property for public use without compensation; it was not intended as a restraint upon state governments : Barron v. Baltimore, 7 Peters 243; Withers v. Buckley, 20 Howard 84. A chartered toll-bridge or road may be condemned by a state under the power of eminent domain: West River Bridge Co. v. Dix, 6 Howard 507 ; Toll Bridge Co. v. Railroad Co., 17 Conn. 40; Railroad Co. v. Railroad Co., 2 Gray 1; Bridge Company v. Lowell, 4 Id. 474. Authority by a legislature to a municipal corporation to vacate, alter or relay streets, does not give power over a turnpike company: Quinn v. Patterson, 3 Dutcher 35.

      W. B. Rogers, for defendant in error,
    cited Stormfetz v. Turnpike, 1 Harris 555; State v. New Brunswick, 3 Vroom 549.
   Chief Justice Agnew

delivered the opinion of the court, January 6 th 1876.

The city of Allegheny claimed to recover against defendant below the cost of grading so much of the Allegheny and Perrysville Plank-road as lies opposite to his lot. This plank-road was laid out under an act of incorporation, passed the 27th of February 1849, Pamph. L. 290, many years before the territory embracing the said lot was brought into the city of Allegheny. It was a toll-road laid out under the provisions of the Act of 26th of January 1849, regulating turnpike and plank-road companies; it was then .not a public street of the city of Allegheny; has it since become so by any law or act of legislation ? In the year 1867, the legislature, by an act in general terms (Pamph. L. 979), annexed to the city of Allegheny the territory in which this portion of the plank-road lies; the revised charter of 1870, in general terms, embraced all the territory then within the city of Allegheny; it confers many powers for the purposeofpolice, health, improvement, &c., but none specially over the roads of private corporations laid out under the terms of their charters. But by continuing in force all the powers and privileges conferred by former laws, and re-enacted, supplied or repealed by the revised charter, it retained the powers conferred in the Act of 1869, Pamph. L. 1168, “ to purchase the right of any or all of the various chartered road companies lying or being within the corporate limits of said city, upon such terms as may be agreed upon between councils and said road companies.” In pari materia with this power, is that conferred by the Act of May 13th 1871, Pamph. L. 818, enabling the city to appraise and take, at the valuation, so much of any turnpike or plank-road as lies within the limits of the city, that the same be free from tolls, and on payment of the valuation may pass under the control of the city as a street thereof, and all toll-houses be removed out of the city limits. Nothing has been done by the city under these acts, but the acts themselves are important, not merely as exhibiting the special power conferred but as interpreting the revised charter, and the Act of April 1st 1870, Pamph. L. 751, “relative to streets in the city of Allegheny,” for the plank-road being private property, with the right to take toll, protected by a charter, and not a public street in any proper sense; and the power to purchase or to condemn it being essentially a different power from that to improve a public street,.the laws relative to the' improvement of streets cannot be applied to the plank-road. But apart from this argument, which in itself is sufficient, the language of the Act of 1870 does not apply to a plank-road. By the first section the city is authorized “to lay out and open new streets, lanes and alleys in said city, and to widen, straighten and to extend any street, lanes or alleys of said city, and to levy and collect damages done to property thereby, by an assessment upon the property benefited by any such improvement.” It is needless to say that this provision has no relation to special corporation toll-roads. Then we come to the sixth section, for the improvement, of the streets of the city; it authorizes the council “to cause to be graded, re-graded, paved, re-paved, or macadamized a,ny public street, lane or alley, or any parts thereof, which is now or which may be hereafter laid out or opened in said city, or which may be in whole or in part boundaries of said city, and to have the same set with curbstone, and the foot or sidewalks paved; and the said councils are hereby authorized to levy and collect the cost and expenses of grading, paving and macadamizing from the owners of property bounding or abutting on said streets, lanes or alleys, or parts thereof, thus improved, by an assessment of an equal sum per foot front of said property.” It must be noticed that this power to assess the cost on abutting owners is confined to the “said streets,” the same only which the city is empowered to improve. If there be no power to improve, there is none to assess. Now it is obvious that the streets authorized to be improved are those of the city itself, over which it has jurisdiction and control, or in the language of the act, “ which are now, or which may be hereafter' laid out and opened in said city'.” This language applies to public streets, not private toll-roads. That the city had no power or control over this chartered plank-road, is conceded by the very contract of the city with the plank-road company, and the admitted necessity of obtaining the company’s consent to interfere with its roadway. If the power contained in the Act of 1870 extended to this plank-road, it could be exercised in invitum, and consent was not necessary; but the fact that it was the. roadway of a private corporation, protected by a state charter, which is a contract, at once took it out of the-description in the Act of 1870, that is to say, a public street, lane or alley, which is now or hereafter may be “laid out and opened in said city.” If then, as is perfectly plain, the plank-road did not fall within the term “public street,” used in the Act of 1870,' it is equally clear that the property adjoining it is outside of 'the power of assessment, which we have seen, is confined to the public streets which the city is authorized to improve; and if the municipal power does not apply no element of contract can be injected into it to give it vigor. It was well said by the learned judge below in his charge: “ But if the city had no legal right under the Acts of Assembly to grade this portion of the plank-road and assess the property abutting thereon with the cost, I cannot see that such request, on part of defendant, would give the city a right to file a lien therefor. This is a sci. fa. on a municipal lien, and must be sustained by an Act of Assembly authorizing it. The defendant might be liable to the city in an action of assumpsit, and yet the city might not have the right to enforce the collection of her claim by a municipal lien.” This view is sound, yet when the learned judge adopted the suggestion, that the city, having acted under a contract with the plank-road company, and graded its roadway, could then turn round and collect the cost from the property abutting, he evidently overlooked the fact that a mere contract right to grade does not rest on the basis of municipal authority, and this plank-road being no street of the city, the municipal power did not exist, either to grade it or to collect the the cost of doing so.

An argument in support of the power is made to arise out' of the supposed benefit to the property of the defendant. But liens of this kind rest on the law alone. The equity was the reason for making the law, but does not stand in the place of the law. Without a law there can be no lien. A municipal lien is an adverse right given by the law against the will of the citizen, and, unless plainly given, cannot take from him his property or his money. It is also to be noticed that the analogy is wanting in material respects, which would liken a plank-road to a city street. The Plank-road Company has but an easement in the land, under the Act of 1849, and on abandoning its road or yielding up its charter, the land reverts to the owner unencumbered by the easement. The city cannot prevent this, and cannot assert authority over it as a highway, unless she had purchased it under the Act of 1869, or condemned and paid for it under the Act of 1871. Then the right of the company to take toll continuing, it bears no analogy to a public street. The testimony shows that the defendant’s property lies between two toll-gates, one, perhaps both, in the city, and that he pays his toll quarterly. Now one of the benefits, for which the law assesses the cost on the owner of the adjoining property, is the free use of the street it opens and improves for him. But here he must pay the same toll as before, and has no right to the free use of the plank-road. Nor is it in the power of the city to secure to him this free use, unless she purchases, or condemns and pays for the plank-road. The citizen does not obtain in such case the benefit which lies at the very root of the power to tax him. Another difference lies in the fact that the plank-road is governed by different laws and regulations from those in regard to the streets of the city. Offences against the Plank-road Company are punished under the General Plank-road Law of 1849. Eor example, the defendant cannot, contrary to the 19th. section, pass through any private gates or bars, or along or over. private’ grounds near to a toll-gate, with intent to avoid payment óf toll, under a penalty of ten dollars. It would be a serious question whether the city, without purchasing or taking the plank-road, could run a street into the plank-road near to a toll-gate, to divert the tolls.

The argument that police and health powers, the taxing powers and the like, may be exerted over this plank-road, and the abutting property, evidently does not touch the question before us. Here the general jurisdiction of the city is extended over this territory, and general municipal powers may be exercised for the general welfare. In this aspect, the Plank-road Company stands in the relation of a private citizen, and must conform to laws made for the public good. But the enforcement of a specific lien for street improvement stands on the special authority conferred, and this, we have seen, does not comprehend a private company’s chartered toll-road. In no proper sense, therefore, can this plank-road be viewed as a public street, subject to the power to widen, straighten, improve, repair, macadamize, and curb it, and to*the power of collecting the cost of so doing from the abutting property. Hence the assessment in this case was illegal and void.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Holmes’s Appeal.
    1. A partnership was formed in which a father and son jointly held one-fourth ; the son died, leaving a widow (his administratrix) and minor children. Under the terms of the partnership the father took the son’s share of the fourth. In 1851, shortly after his death, the widow, as administratrix, the children having no guardian, made a settlement under seal with the surviving partners, including the father, by which credits of the son on the firm books were given up to the survivors and a balance agreed to. In 1863, after the children came of age, they filed a bill against the administratrix and survivors for an account by the survivors. Held, that the administratrix had the power to make the settlement, and in the absence of fraud the settlement was binding on her and the children, and the account was refused.
    2. The consideration of an agreement may be proved aliunde by parol if necessary, and may be shown to be different from that expressed.
    3. A stale claim is regarded with disfavor in a court of equity.
    October 12th 1875.
    Before Agnew, C. J., Sharswood, Williams, Merc-ur, Gordon, Paxson, and Woodward, JJ.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Inequity: Of October and November Term 1875, No. 127.
    The bill was filed April 17th 1868, by Charles Arbuckle, Margaret Arbuckle, Christiana Arbuckle, Robert Jamieson and Catharine his wife, in her right against Nathaniel Holmes, John Arbuckle, Richard Edwards, William Holmes, executor of George Jackson, deceased, William M. Shinn and William P. Beck, executors of Thomas R. Holmes, deceased, and Margaret Arbuckle, widow and administratrix of Thomas Arbuckle, deceased.
    The circumstances which gave rise to this controversy were as follows:—
    On the 28th of January 1850, Thomas Arbuckle, John Ar-buckle, George W. Jackson, Richard Edwards, Thomas R. Holmes, and Nathaniel Holmes entered into articles of partnership under the firm name of Thomas Arbuckle & Co., in the business of cotton manufacturing, and dealing in goods of that kind, in the cotton mills in Allegheny city, then lately occupied by Blackstock, Bell & Co.; the ca.pital stock, at the commencement, to be $100,000, in four equal shares : John and Thomas Arbuckle together to contribute one-fourth, each paying one-eighth, George W. Jackson one-fourth, Richard Edwards one-fourth, and Thomas R. and Nathaniel Holmes one-fourth, each contributing one-eighth; the business of the firm to be conducted under the general supervision and control' of Thomas Arbuckle, who was to be the managing partner, and to receive for his services, so long as he should act in that capacity, a salary of $1000 per annum, above his share of the profits. William Bell was to be manager under the control of Thomas Arbuckle, and to receive an annual salary of $1000, and, in the absence of Richard Edwards, to represent his interest as a partner. . Either Thomas Arbuckle or Bell might be discharged as a manager upon a vote of partners holding two-thirds of the capital of the firm. An account of stock was to be taken on the first days of January and July in each year, and a statement in writing of the condition of the firm to be made. The. partnership to be taken to have commenced on the 26th of November 1849, to continue for five years from the 1st of January 1850, and for such further term as the partners might agree upon. In case of the death of a partner, his interest to be taken by the survivors at a valuation to be ascertained by the last balance-sheet rendered previously to his death, without reckoning any profits or losses after that time. But in case any share should be held by two jointly, on the death of one of them, the survivor, if he so elected, might take the interest of the deceased owner; but if he did not so elect, such joint interest might be taken by the firm. Thomas and Nathaniel Holmes further agreed to cause to be conveyed to the firm, by the heirs of N. Holmes, Sen., deceased, a lot of ground in Allegheny city, described in the agreement, with cotton mill, &c., on it, in consideration of which the firm covenanted with Thomas and Nathaniel Holmes to “ pay the debts of the late firm of Blackstock, Bell & Co., of which N. Holmes, Sen., deceased, was a member, the sum of $85,000, and also to pay the said Holmes the sum of $15,000 in cash; the said sum of $15,000 to be paid by the said Thomas and John Arbuckle, and to form part of their share of the capital stock of said co-partnership, of which payment the receipt of said Holmes therefor shall be sufficient evidence and voucher for them, the said Thomas and John, that they have paid said sum as part of their capital stock.”
    On the 28th of January 1850, each partner was credited by the amount of his share of the capital, each of them having paid his share in cash, except Thomas Arbuckle, whose share was paid by a charge of $15,000 in his favor against the administra-' tors, &c., of N. Holmes, deceased, and showing at that date a balance of $2500 to his credit on the books of.the firm. The firm continued in operation under this arrangement, and without a change of its members, until April 8th 1851, when Thomas Arbuckle died intestate, leaving a widow, Margaret Arbuckle, and five children, viz.: Charles, aged 18 years; Margaret, 16 years; Catharine, 14 years; John, 12 years, and Christiana, 10 years. Administration of Thomas’s estate was granted to his widow. Under the provisions of the articles of partnership, John Arbuckle, who was the father of Thomas, elected to take his share in the firm in trust for the widow and children.
    On the 27th of June 1851, Thomas Arbuckle’s account was charged on the books of the firm with $10,000, and each of the other shares, including John Arbuckle’s, credited by $2500. Each entry of such credit was accompanied by this statement:—
    “For the one-fourth of $10,000 (being part of the $15,000 given to Thomas Arbuckle when the company was first formed in consideration of his future services for five years), relinquished or given up by the administratrix of Thomas Arbuckle, deceased, as per agreement of all the parties. John Arbuckle, Sen., representing the one-eighth interest of the estate of Thomas Arbuckle, deceased, as well as his own interest of one-eighth. See agreement.”
    “ These entries all take effect from 1st of April 1851, from which time the interest will date.”
    After all the entries is the following:—
    “ The administrators of N. Holmes, deceased, agreed to furnish the company with the services of Thomas Arbuckle for five years from the date of the original article of agreement, for which they agreed to pay him $15,000, and for which he has credit on the books of the company. But the company being deprived of his services, by his death, before any considerable portion of the time transpired, it was and is hereby agreed by and between Margaret Arbuckle, administratrix of Thomas Arbuckle, deceased, and the surviving members comprising the firm of Thomas Arbuckle & Co. * * * and the administrators of N. Holmes, deceased, to charge back to the account of Thomas Arbuckle, deceased, $10,000 of the above sum, and credit the members now composing the firm in proportion to the interest each holds in said company, viz.: John Arbuckle, &c. * * * The said John Arbuckle agrees to give back to the estate of Thomas Arbuckle, deceased, the one-fourth part of the above $10,000 credited to him, and he does authorize the credit of the above-named $2500 to the account of the said Thomas Arbuckle, deceased, which we accordingly do, and charge, him. Thomas Arbuckle agreed with T. R. and N. Holmes that they should receive credit for his salary of $1000 per annum, for five years, in consideration in part of the above arrangement, but the company agreed to credit the account of the said Thomas Arbuckle, deceased, with the whole of his salary for the time his services were rendered. This arrangement is agreed to by all the parties in said firm, and Margaret Arbuckle, and administrators of N. Holmes, deceased. W. Neille, Bookkeeper (copy).”

      Thomas Arbuckle’s account is further credited, of the same-date, by his share, one-eighth of the profits up to January 1st 1851; also, by his salary for fifteen months, including the amount theretofore credited to T. & R. Holmes.
    Following the credit of the salary is this entry
    “ Thomas Arbuclde and the administrators of N. Holmes, deceased, had a verbal agreement that they should receive credit for his services for five years, at the rate of $1000 per annum; but the administratrix of Thomas Arbuekle, deceased, not being aware of this arrangement, is not willing to relinquish the salary, the company agreed to credit Thomas Arbuekle $1250, and also T. R. & N. Holmes $1250.”
    Thomas Arbuclde was also credited on the books by the $2500, the proportion of the $10,000 assigned to T. & J. Arbuekle, “ according to his (John’s) written instructions.”
    On the — day of July 1851, an agreement under seal was entered into “between Margaret Arbuclde, widow and administratrix of Thomas Arbuekle, deceased, of the first part, and John Arbuekle, George W. Jackson, Richard Edwards, Nathaniel Holmes and Thomas R. Holmes, who survived the said Thomas Arbuekle as partners, &c., under the late firm of Thomas Ar-buckle & Co., of the second part.”
    The agreement recited that at the organization of the firm Nathaniel Holmes being seised, under an agreement with William Bell and William Blackstock, of the real estate, &c., “now belonging to said firm and occupied by them as a cotton factory,” with a view to enlist other co-partners agreed, “in order to secure the services, skill, &c.,” of Thomas Arbuclde for five years, “ to bestow on him by way of bonus, premium or compensation therefor, the sum of $15,000;” and that Thomas Arbuclde was credited with that sum in full of his share of the capital of the fi'rm,- leaving a surplus in his favor of $-2500; that by a verbal agreement with Thomas Arbuekle, “in consideration of the promises,” his salary was to be carried to the credit of T. R. & N. Holmes, and $500, part thereof, had been carried to their credit; that by Thomas Arbuckle’s death, before the lapse of any considerable portion of the five years, the firm had been deprived of the advantages, &c., expectant from his skill and services, and thus defeating, to a great extent, the consideration on which the credit was given to him; that John Arbuekle had elected to take the interest of Thomas in the firm, leaving, with assent of the other parties, the credits and profits to be adjusted with his personal representatives. It was then agreed by the administratrix, that in consideration of the premises she would release and transfer to the surviving partners the sum of $10,000, theretofore credited to Thomas Arbuekle, and that the same should be charged back to his account and credited to the surviving partners in proportion to their respective interests, John Arbuckle representing one-fourth, and John’s share to be credited to Thomas’s account on the partnership books, “ to which the said John has and does hereby fully consent and agree.” It was further agreed that the $500 credited to T. R. & N. Holmes, on account of the salary of T. Arbuckle, should be re-transferred to the account of Thomas Arbuckle, and he be credited by the whole amount of the salary; it was further agreed that upon the account so adjusted the whole amount due Thomas Arbuekle above his share of the partnership stock was $6045.79, which was to be satisfied by the notes of the survivors, with interest, which notes “ are hereby acknowledged by the said Margaret Arbuckle, administratrix, as aforesaid, to have been received by her in full satisfaction of the balance owing to the said Thomas upon the books of the partnership aforesaid.” It was further agreed that corresponding entries should be made on the books of the partnership, and so far as any such entries had been made in conformity with the agreement, they were “mutually ratified and confirmed, and “shall stand and be considered as having been made with the full assent and knowledge of the parties, and with the intent that the same should be binding and conclusive upon them respectively, and so that the same shall not, at any time hereafter, or upon any pretence whatever, be overhauled, disturbed or disannulled.” The agreement was executed by all the persons above named as parties to it.
    The bill, after various allegations, including many of the circumstances as above stated, charged that soon after the death of Thomas Arbuckle the surviving partners, Gr. W. Jackson, N. Holmes, T. R. Holmes, R. Edwards and W. M. Bell, “ combining and confederating together, and contriving to diminish, reduce and injure the interest of the said Thomas in the firm of Thomas Arbuckle & Co., appropriated to themselves, respectively, $7500 of the amount standing as aforesaid upon the books of the said firm to the credit of the said Thomas by debiting his account to that extent, and taking credit to themselves in the following proportions,” &c.; that they further debited the account of Thomas with $2500, and credited that amount to the account of John Arbuckle without his consent, but when it came to John’s “ knowledge he protested against it as being iniquitous and unjust to the estate of Thomas,” and caused the said $2500 to be again credited to his estate; that Margaret Arbuckle protested against such spoliation of her husband’s interest in the firm, but finally submitted and acquiesced, under threats that if she did not do so the same parties would commit further spoliation of the interest of Thomas in the firm; that at the time the plaintiffs were minors and had no guardians; that none of them were consulted in relation to these transactions, and they had no knowledge of them until a few years before filing the bill.

      There were other charges in the bill in relation to the general interest of Thomas Arbuckle in the firm, which it is not necessary to specify.
    One of the prayers was that the defendants should be decreed to transfer to the credit of the estate of Thomas Arbuckle, deceased, on the books of the company, “ the amount of money and credits standing upon the books of the firm at the death of said Thomas so wrongfully and unjustly distributed and divided to and amongst the said George W. Jackson,” &c.
    The defendants, N. Holmes, Richard Edwards, W. M. Bell and W. Holmes, answered, amongst other things, denying that they combined to diminish Thomas Arbuckle’s interest in the firm, but that they charged back and credited the money mentioned in the bill in accordance with the reasons set forth in the article of agreement of the — day of July 1851; that Charles Arbuckle, one of the plaintiffs, then eighteen years of age, knew of the article of agreement and its intents and purposes; that the $2500 credited to John Arbuckle was in accordance with the agreement of July 1851; it was done with the consent of John Arbuckle, who after-wards relinquished his right to the $2500, and by his direction it was credited to the estate of Thomas Arbuckle; they averred that Margaret Arbuckle did not object to the transfer, but consented to what was done without any threats by the defendants, or any coercion by them or on their behalf.
    On the 12th of September 1863, James M. Gallagher, Esq., was appointed examiner and master. He having died, W. G. Hawkins, Esq., was, on the 27th of February 1866, appointed examiner and master in his place.
    The testimony was taken by the master on the 19th of December 1873, and the 29th of January and 13th of February 1874. W. Neille, bookkeeper of the firm, testified that he knew of the arrangement as to the $15,000 at the formation of the firm; it was as stated in the articles of partnership, and was given to Thomas as a bonus as stated in the agreement with Mrs. Arbuckle; the other members went in on account of his reputation as a great cotton spinner; Charles Arbuckle was present at the execution of the agreement of July 1851. The entries in the books were made by witness with the consent of all the surviving partners, including John Arbuckle; when Thomas Arbuckle spoke of the entry in the books crediting T. R. & N. Holmes with his salary, he said, “give it to the boys,” meaning those two. All the notes given to Mrs. Arbuckle as administratrix, in connection with the settlement, were paid ; the agreement was read to her in the presence of her son Charles before she signed. Thomas contributed nothing to the capital except through the credit he received for the $15,000 as a bonus.

      The master, September 16th 1874, reported the facts substantially as above stated.
    He stated as his opinion that the bonus of $15,000 should not be apportioned, and in support of his opinion said:—
    ■ a When the offer of a bonus was made to Thomas Arbuckle, he had already acquired a reputation and a fortune as a cotton spinner, and retired, as he intended, permanently, from business to seek and enjoy that rest to which every thoughtful man looks forward. It was therefore natural that fie should hesitate, and that it should require strong inducements to persuade him to re-embark in business and risk both fortune and reputation. The Holmes understood and áppreciated the value of a name, and therefore made tfie.acceptance of their offer by Mr. A.rbuekle the condition precedent to the formation of the proposed partnership. By his acceptance, his name and reputation became identified with the new firm, and whatever benefit or advantage they might bring with them, was secured for the whole term for which it was formed. The name was the consideration for the bonus. They took the risk of his living the whole term. Compensation for services was provided for in another way. The articles provided that he should receive for his services, as general manager of the business of the firm, at the rate of $1000 per annum. This was exclusive of the bonus. In providing for tfie payment of the bonus, nothing is said about services; but the articles expressly provide that the salary of $1000 per annum shall be for services as general manager; the presumption is that the-bonus was intended for another purpose. The entries in the books of the firm lead to the same conclusion. Thomas Arbuckle is there credited with the bonus of $15,000, absolutely and unconditionally as for so much cash paid. It was credited as, and became part of, the assets of the firm. * * * So far as the articles show, it was not intended that Thomas Arbuckle should devote his whole attention to the business of the firm. They provide for substitution in case of inability to attend, &c. Whereas, in the case of William M. Bell, he was required to devote his whole attention to the business of the firm. It will thus be seen that from all the circumstances of the case, from the articles and the books of the firm, the consideration of the bonus given Thomas Arbuckle by N. and Thomas R. Holmes, was his accession to the firm, that his name and reputation had that value and were as to them equivalent to capital stock. What equity, then, have the defendants to overcome this view of the case ? The Holmes secured what they sought — the benefit of the name and reputation of Thomas Arbuckle. The firm was announced to the world, and continued for the whole term of the partnership, under the name and style of ‘ Thomas Arbuckle & Company.’ What the actual value of the name was it is not necessary to say, but the value which they put upon it is shown by the fact that without it the partnership would not have been formed. The Holmes secured more than was contemplated in the original arrangement. They were credited on the books of the firm with two instalments of salary to Thomas Arbuckle, as general manager. So far as the evidence shows, this was a pure gratuity. Nor have the other defendants an equity. They paid no part of the bonus.
    “ Had it been the arrangement of the parties, that the bonus should be for the services of Thomas Arbuckle as general manager during the whole term of the partnership, it should and would have been expressed in the articles. There is the utmost particularity shown therein on every other subject, but in this there is nothing to sustain the contention of defendants, and every implication in favor of that of plaintiffs.
    “ The master therefore finds that at the date of the death of Thomas Arbuckle, he had to his credit on the books of the firm, inter alia, the sum of $10,000, as bonus, paid by N. and Thomas R. Holmes; that such credit was nof>subject to abatement for or on account of the death of said Thomas Arbuckle; but as to this, was entire and indivisible, and said firm was accountable for the whole amount thereof to the estate of said decedent.
    “ If the foregoing finding of the master is right, the agreement of Margaret Arbuckle, as administratrix, and the surviving partners of the firm of Thomas Arbuckle & Co., was collusive and fraudulent, and therefore voicf as to plaintiffs, as being without sufficient consideration. It cannot be sustained on the ground of a compromise, because the subject-matter was not a doubtful right. We have shown that the estate was entitled to the whole amount of the bonus; the partnership was solvent and the claim not in jeopardy, the administratrix therefore could not accept less than the whole amount, because there could be no consideration for the acceptance of less.
    “ The master, therefore, further finds that the debt to the estate of Thomas Arbuckle, deceased, of the sum of $10,000, and the credit thereof to the surviving partners of the firm of Thomas Arbuckle & Co., individually, on the books of said firm, was as between defendants collusive, and as against plaintiffs void, and that defendants' by their said action have become trustees, ex maleficio, for plaintiffs.” * * *
    He recommended that it should be decreed that the defendants, other than Margaret Arbuckle, were indebted to Thomas Ar-buckle’s estate in the sum of $7500, with interest from January 1st 1852, and that they pay that sum to Margaret Arbuckle as administratrix of Thomas Arbuckle, deceased.
    Exceptions were filed to the master’s report, which were overruled by the Orphans’ Court, and the report was confirmed April 15th 1875.
    The court further decreed:—

      “ That said defendants, other than said Margaret Arbuckle, are indebted to the estate of Thomas Arbuckle, deceased, in the sum of seven thousand five hundred dollars, with interest thereon from the first day of April 1851, being the amount wrongfully appropriated by said George W. Jackson, Thomas It. Holmes, Nathaniel Holmes and Richard Edwards, surviving partners of the late firm of Thomas Arbuckle & Co., to themselves out of the assets of the estate of said Thomas, amounting, principal' and interest, to the sum of seventeen thousand and ninety-seven dollars and fifty cents.
    “That said defendants, other than said Margaret Arbuckle, forthwith .do pay said Margaret Arbuckle, administratrix of said Thomas Arbuckle, deceased, said sum of seventeen thousand and ninety-seven dollars and fifty cents and interest thereon from the date of this decree until the same is fully paid.
    “ That said defendants, other than the said Margaret Arbuckle, do pay the costs of this suit,.” &c.
    The defendants appealed to the Supreme Court, and assigned the decree for error. •

      H. Burgwin, for appellants.
    Agreements such as that sought to be avoided here can be set aside only for fraud and collusion: Lindley on Partnership, sect. 794; Davis v. Davis, 2 Kern 534; Rowley v. Adams, 7 Beavan 395. The arrangement being in the settlement of disputed claims, and there being no proof of fraud, will be sustained by the court: Bruner’s Appeal, 7 P. F. Smith 46.

      Cr. P. Hamilton, for appellees.
    Surviving partners are trustees: Collyer on Partnership, sects. 129,130. Transactions between trustees and beneficiaries must be carried on in the utmost good faith — there must be no concealments and no misrepresentation : Campbell v. McClain, 1 P. F. Smith 203; Diller v. Bruchbaker, 2 Id. 498. To establish a claim by one holding a fiduciary relation to another against his person or estate, the burden both as to its fairness and consideration is on the claimant: Wistar’s Appeal, 4 P. F. Smith 60. An administrator is a trustee simply, and is bound to apply the estate of decedent to the payment of his debts and the surplus according to the intestate laws : Scott on Intestates 549; McCandless’ Estate, 11 P. F. Smith 9; Abbott v. Reeves, 13 Wright 505. It may be laid down as a general principle that a purchaser or receiver of property from a trustee, with notice of the trust, is, in equity, bound by the trust to the same extent as the person from whom he purchased or received: Hill on Trustees 164; Bank v. Tyler, 3 W. & S. 373; Goepp’s Appeal, 3 Harris 428; Pierce v. McKeehan, 3 W. & S. 280.
   Mr. Justice Sharswood

delivered the opinion of the court October 25 th 1875.

It is not necessary that we should discuss the question which has been raised on the jurisdiction of the court to entertain the bill and to make the decree which they did in this case. We are of opinion that the plaintiffs have failed to make out their equity to any relief.

It is an undisputed fact that Margaret Arbuckle, in July 1851, by an agreement under seal, with the surviving members of the firm of Thomas Arbuckle & Co., did make a final arrangement and settlement of his claims upon that firm. She was his widow and administratrix, and, therefore, in law authorized to make such a settlement. Nor is it denied that if the recital of facts contained in that was true, the settlement was a perfectly fair and equitable one, and would be binding on the estate. Those facts are endorsed as true, not only by the administratrix, but by the surviving members of the firm, including John Arbuckle, the father of Thomas Arbuckle, and who by the terms of the articles of copartnership, was jointly interested with his son in one-fourth of the capital stock, having paid his share of the said one-fourth in cash, and having the right under the articles, upon the death of' Thomas, to take the interest of the deceased in the share at the value thereof, as ascertained, and who actually did elect to take the share in trust for the family of his deceased son.

The master, however, found and reported that this agreement of the administratrix was collusive and fraudulent — that is, if the words have any meaning that she conspired with the surviving partners to defraud the estate of her deceased husband — to defraud her children, the plaintiffs in this case, and deprive them of their legal rights. Where is the evidence of this ? That any fraud was practised upon her to induce her to sign the agreement, there is not a spark of evidence. It was read to her, and there is no evidence that she did not understand it. The presumption is, from her relation to the deceased, that she knew that the principal fact recited in the agreement was true, to wit, that the bonus of fifteen thousand dollars was bestowed on her husband, Thomas Arbuckle, in order to secure his services, skill and co-operation for the five years the partnership was to continue. It is not shown that she was personally to derive any benefit or profit from the agreement. She was not only absolutely without any motive to commit such a fraud, but her interest was altogether in the opposite direction.

The master grounds his finding of fraud and collusion — not upon any evidence — but upon an inference drawn from the articles of co-partnership, that the fifteen thousand dollars allowed to Thomas Arbuckle was to be for his name, not his services; and his name the firm used and had the advantage of during the whole five years of its agreed duration. But this is so clear that it cannot be explained by evidence aliunde? Thomas R. Holmes and Nathaniel Holmes convey to the firm all the real estate, engines and machinery, and in consideration thereof the firm contracts to pay of the debts of the firm of Blaekstock, Bell & Co., the sum of eighty-five thousand dollars: and also to pay the said Holmes the sum of fifteen thousand dollars in cash. The said sum of fifteen thousand dollars to be paid by the said Thomas and John Arbuckle and to form part of their share of the capital stock of said co-partnership, of which payment the receipt of the said Holmes therefor shall be sufiicient evidence and voucher for them, the said Holmes and John, that they have paid said sum and part of their capital stock.” There is certainly nothing in this to indicate what consideration moved the other partners to make this grant to Thomas and John Arbuckle; and that John Arbuckle paid his full share of $12,500; and the full amount of $15,000 was credited to Thomas, was evidently an arrangement between the father and son with which the other partners had nothing to do. John Arbuckle probably gave to his son Thomas his half of the bonus. Nor is the provision that Thomas was to be paid a salary of $1000 for his services as managing partner, entitled to conclusive weight. Skill and knowledge in the art or mystery of cotton spinning were different things from labor and responsibility as managing partner, and might well he separately compensated. Why Thomas Arbuckle ordered his salary to be credited to the Holmes has not been explained. It may have been a mere gratuity, but it is more probable that it was the result of a private understanding between the parties.

Nothing is better settled than that the consideration of an agreement may be proved aliunde by- parol if necessary, and even shown to be different from that expressed. Here, then, we have the solemn declaration of Margaret Arbuckle, under her hand and seal, together with the other members of the firm as to what was in truth the consideration of the bonus, made at a time when all the circumstances were recent and fresh in memory. This is confirmed by the testimony of William Neille, who was the confidential clerk of the firm and cognisant of all their transactions as to his understanding. Nor is it conclusive against that testimony that, after so long a lapse of time, he cannot state with particularity the sources of his knowledge. At the time the proofs were taken, Margaret Arbuckle was a competent witness for her husband’s estate, and so was Charles Arbuckle, one of the plaintiffs, who was sixteen years old at the time of the settlement, and present at the execution of the agreement by his mother. Yet neither of these persons are offered as witnesses to show any fraud or collusion. The master reports that John Arbuckle did not concur in the arrangement between the other partners by which the estate of Thomas Arbuckle was debited with the sum of ten thousand dollars, but says: “John Arbuckle repudiated the entry.” We see nothing in the evidence to maintain this finding. John Arbuckle’s name and seal are to the agreement of July 1851. That the amount credited to him was charged back by his order was entirely of a piece with his generous conduct throughout towards his son and his son’s family. No doubt he intended to do this when he executed the agreement, and it is one of the facts necessary to sustain the plaintiff’s case hardest to believe, that with no contemplated advantage to himself, he should have conspired with the other partners in an act of spoliation of his own grandchildren.

This -is a very stale claim, and as such not regarded with favor in a court of equity. There was no concealment of the transaction. Charles Arbuckle, one of the plaintiffs, was present when the agreement was read to his mother and executed by her, in July 1851. Yet no proceedings are instituted until April 1863, nearly twelve years after it. The case drew its slow length along eleven years before the master’s report was made and the decree entered. We are of the opinion that the plaintiffs have failed to show any equity to support the decree.

Decree reversed, and now it is ordered that the bill be dismissed; the appellees to pay the costs below and of this appeal.


author: Per Curiam.

text:
    Crist versus Kleber et al.

    1. Kleber leased a piano to Wilson for a rent payable quarterly; the lease to terminate at the option of Kleber, if the rent were not paid ; with privilege to Wilson to buy, and if purchased all sums paid for rent to be deducted from the price, Kleber still to retain the owenrship. The piano being in possession of Wilson was sold for taxes against him. Held, that the sale did not divest Kleber’s ownership.
    2. No declarations of Wilson or the acts of other parties in attempting to treat the piano as his could affect Kleber.
    3. The property remained in bailment and was not. liable to a sale for Wilson’s debt or for his taxes.
    4. Possession under a mere bailment for hire is not a constructive fraud.
    October 13th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and .Woodward, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 133.
    This was an action of replevin, brought July 3d 1874 by Henry Kleber and Augustus Kleber, trading as H. Kleber & Brother, against S. J. Crist, for a piano, stool and cover.
    The defendant gave a claim property bond and retained the goods.
    The plaintiffs’ affidavit of claim was, that being the owner of the piano, stool and cover they entered into an agreement with one James Wilson to rent him the piano, &c. for the quarterly rent of $35. The agreement was'dated July 12th 1873 ; in consideration of the renting of the piano, &c., Wilson agreed to pay to the plaintiffs $35 from the date of the agreement until the 12th of October then next: “being one quarter, the specified amount to be paid at the beginning of each quarter or term,” the “ renting may be terminated at the option of the party of the first part at any time if the rent is not paid as above agreed, and they may at their option enter said premises and take possession of and remove said piano without process of law.” Wilson was to have the right to purchase the piano at $450 in instalments, the last payable in nine months; in case of purchase, the sums paid for rent to be deducted from the price; the right of the plaintiffs to claim the piano as their property to remain in them as if the privilege of purchase had not been added to the agreement.
    The affidavit further averred that in pursuance of the agreement the piano, &c., were delivered to Wilson, who failed to pay the rent and to comply with the provisions of the agreement, that the defendant has the piano, &c., in his possession and refuses to deliver it.
    The affidavit of defence averred that the piano, &c., were lawfully seized and sold for taxes by the tax collector of the Sixth ward, Allegheny city, on the premises of Wilson, for city, county and state tax due by him; that T. P. Nicholson became the purchaser of the piano, &c., at the sale, and the defendant purchased them from Nicholson; it averred further that the defendant had no knowledge of the alleged agreement with Wilson, &c.
    On the trial, April 12th 1875, before Stowe, J., the plaintiffs read their affidavit of claim under the rule of court. The defendant offered to prove the assessments against the real estate of Wilson; warrants issued to the collector; that the piano was found on the premises of Wilson and claimed by him, long after the expiration of the lease; that under the warrants the piano, &c., were sold to Nicholson, who sold them to the defendant: to be followed by proof that Wilson asserted whilst the piano, &e., were in his possession, that he had paid for them in full and that Wilson a short time before the sale had claimed them under an execution against him; that they were set apart to him and afterwards sold for the taxes.
    The plaintiffs objected to the evidence; it was rejected by the court, and a bill of exceptions sealed.
    Both parties then gave evidence as to the value of the piano, &c.
    The court charged that under the evidence the plaintiffs were entitled to recover; the only question was as to damages.
    The verdict was for the plaintiffs for $420.50.
    The defendant took a writ of error and assigned for error the rejection oí his offer of evidence and the instruction of the court to the. jury.

      Bigham Blalcely, for plaintiff in error,
    cited Davis v. Bigler, 12 P. F. Smith 242.
    6r. B. Cochran and A. M. Brown, for defendants in error.
    The lease clearly asserted and maintained the plaintiffs’ right of property in the piano; and the legality of such a bailment is lawful: Myers v. Harvey, 2 Penna. Rep. 479 ; Vandyke v. Christ, 7 W. & S. 373 ; Clark v. Jack, 7 Watts 375 ; Rose v. Story, 1 Barr 191; Henderson v. Lauck, 9 Harris 359; Linton v. Butz, 7 Barr 89 ; Rowe v. Sharp, 1 P. F. Smith 26. “ Caveat emptor” is applicable to this purchase: Brown v. Wilmerding, 5 Duer 225.
   Judgment was entered in the Supreme Court October 25th Í875,

Per Curiam.

The lease of the piano was a continuing lease, to be terminated only at the option of the plaintiffs if the rent should be unpaid. No offer was made to show that the lease had been terminated and the piano suffered to remain in the hands of Wilson, the lessee, as his property. His declarations of property, or the acts of other parties in attempting to treat the piano as his, could not, therefore, affect his lessors. The property remained in bailment and consequently was not liable to a sale for payment of his debts, or for taxes. Possession under a mere bailment for hire is not a constructive fraud; otherwise much of the business of men would be ended, and the poorer the bailee the less would be his ability to hire the use of property needful to him. We see no error in rejecting the defendant’s offer. Judgment affirmed.


author: Mr. Justice Paxson

text:
    Reamer et al. versus Bell.
    1. Bell brought suit as holder of a note payable to the order of Dilworth, by whom it was endorsed, “ Pay K. McCurdy, Cash.” Held, that this being a special endorsement on its face it carried no title to Bell.
    2. In the affidavit of defence, the allegation was that the note had been procured by false and fraudulent representations, and the consideration had failed, and a denial that Bell owned the note. Held sufficient to put Bell on proof that he was a honá fide holder.
    October 13th 1875.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 118.
    This was an action of assumpsit, brought December 5th 1874, by Thompson Bell against Josiah Reamer, Wesley Wilson and others, partners under the name of “The Mahoning Iron Company.” The writ was served on Reamer and Wilson, and returned “Nihil” as to the other defendants.

      The cause of action was the following-nóte:—
    “f>7833.33J. Youngstown, Ohio, December 1st 1871.
    “ Two years after date we promise to pay to the order of William Dilworth, Jr., of Pittsburg, Pennsylvania, seventy-eight hundred and thirty-three and one-third dollars, at First National Bank, Youngstown, 0., with interest. This note is secured on land by mortgage deed, duly stamped and stamp cancelled. Yalue received in deed of land.
    “ Mahoning Iron Compant,
    “ By Allen Hellawell, Agent.”
    Endorsed, “Wm. Dilworth, Jr.
    Pay R. McCurdy, Cash.”
    The defendants, by one of them, filed an affidavit of defence:—
    “ That as deponent is informed, and verily believes and expects to be able to prove on the trial of this cause, the said plaintiff has no title to the note sued on. That said note was given tenter alia) in part payment of the purchase-money of certain property, situated in Mahoning county, Ohio, sold to the deponent and others by William Dilworth, Jr. (payee of said note), and others, and said note was secured by a mortgage on said property. That suit for the foreclosure of said mortgage has lately been instituted in the Court of Common Pleas of Mahoning county, Ohio, wherein it appears, by the pleadings and by an affidavit filed on behalf of William Dilworth, Jr., that' sáid William Dilworth, Jr., claims to be the owner of the note sued on in this case. And deponent says that said note was procured by false and fraudulent representations, in the first instance, in reference to the value of the property, in part payment of which said note was given ; and that the defendants have a full, just and legal defence to the payment of said note and to the foreclosure of the mortgage aforesaid, in this, that the consideration therefor has failed.”
    The plaintiff took a rule for judgment for want of a sufficient affidavit of defence, which was made absolute April 21st 1875, and judgment entered against Reamer and Wilson for $9382.05.
    The defendants took a writ of error, and assigned for error the entering of judgment against them for want of a sufficient affidavit of defence.

      I). T. Watson, J. Dalzell and J. H. Hampton, for plaintiffs in error.
    If defendants present a primd facie case of fraud, the plaintiff is bound to prove that he is a bon& fide holder: Albietz v. Mellon, 1 Wright 367.- The allegations in the affidavit showed a case of frand, and were sufficient to allow defendants to go to trial: Hoffman v. Foster, 7 Id. 137.

      Robb Sf MoQlung, for defendant in error.
    The defence might be good against Dilworth, but defendants must show that plaintiff took the note mala, fide: Phelan v. Moss, 17 P. F. Smith 59; Heist v. Hart, 23 Id. 286.
   Mr. Justice Paxson

delivered the opinion of the court, November 15th 1875.

We think the affidavit of defence filed in this case, while not as specific as it might have been, was nevertheless sufficient to prevent judgment. The copy of the note filed by the plaintiff below goes to sustain the denial of his title contained in the affidavit referred to. It is endorsed “ William Dilworth, Jr.; pay R. McCurdy, Cash.” This is a special endorsement, and upon its face conveys no title to the plaintiff below. The further allegation that the note in controversy was procured by false and fraudulent representations, and that the consideration thereof has failed, coupled with the denial of said plaintiff’s title, was sufficient to pnt the latter upon proof that he is a boná fide holder.

Judgment reversed and a procedendo awarded.


author: Mr. Justice Mercur

text:
    Greenwood’s Appeal.
    1. After notice by a landlord to a sheriff of a claim of rent from goods levied on has been accepted and acted on by him,’ it is too late to except to its sufficiency.
    2. A landlord verbally agreed with a tenant for the occupancy of a house at a fixed rent, and the tenant entered; he frequently declined to sign a written lease but continued in possession ; near the end of the term he executed the lease dating from the agreement, and on the next day his goods were levied on under an execution. Held, that the landlord’s claim for rent could not be sustained on the written lease, but could be on the previous verbal agreement and the possession under it.
    October 13th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny eounty; Of October and November Term 1875, No. 172.
    In the distribution of the proceeds of the sheriff’s sale of the personal property of John Hardman, sold under an execution issued ■on a judgment against him in favor of J. K. Lanahan.
    After the levy and sale of the goods the sheriff received a notice as follows:—
    “ J. K. Lanahan v. John Hardman.
    “ J. H. Hare, sheriff, you will please take notice, that I have claim for rent against the above-named defendant, amounting to the sum of seven hundred and thirty-six 66-100 dollars, which rent has accrued since and dating from April -1st 1874, upon the premises levied upon by you and sold on the 26th day of Eebruary 1875. You will please retain such sum in satisfaction of my said claim for rent, as provided by the Act of Assembly in such case made and provided. N. W. Shafer,
    “Attorney for Abraham Greenwood, landlord.”
    The sheriff brought the money into court; it amounted to $388.60. after deducting costs, and was referred to James M. Carpenter, Esq., to report distribution.
    There was given in evidence, on the hearing before him, an agreement between Greenwood and Hardman, by which Greenwood leased to Hardman “ the house on the corner of Twelfth and Penn streets, and the house next adjoining, at the annual rent for both houses of $1003.20, at the rate of $83.60 per month, payable monthly in advance.” * * *
    “ (Remarks.) The rent of the store to commence the 1st day of April 1874, and the rent of the premises on the 12th day of June 1874.
    “In witness whereof, the said Abraham Greenwood and John Hardman have hereunto set their hands and seals the 1st day of April 1874.”
    W. W. Brown was the subscribing witness.
    He testified that he did not see either party sign the lease; it and its duplicate were delivered in his presence; he witnessed it at the request of both parties, the day before the seizure of the property.
    Mrs. Greenwood testified that the lease was signed in February 1875 ; he had been in possession since April 1st 1874.
    Greenwood testified that the contract of lease was made on or about the 1st of April 1874 for three rooms, which included the cellar; it was completed, but not put into writing at that time. Hardman asked witness what rooms he would have to rent; he said four, but they would not be ready till June 12th; these rooms had nothing to do with the other three rooms; they were a separate contract; Hardman asked about four rooms more; witness said the "rent of the first four rooms would be $18.60 per month; the other four rooms $15 per month, and the rooms and cellar first referred to $50 per month; the lease was to run from April 1st 1874 to April 1st 1875. He never made any other lease or contract. This lease was put into writing; it was the same offered in evidence. The contract for the last four rooms was made in the latter part of May. Witness signed the lease in June, and took it to Hardman, but he refused to sign then and after several requests.
    The auditor reported:—
    * * * “ By the terms of the lease in evidence, and also by the testimony of Abraham Greenwood, it appears that a portion of the premises described in said lease were let to said Hardman, at the rate of fifty dollars per month from April 1st 1874; that another portion of said premises were let at the rate of eighteen 60-100 dollars per month from June 12th 1874. By the sheriff’s return, it appears that the sale of defendant’s interest in the leasehold of premises described on lease, now in evidence, and also of defendant’s other personal property, took place on the 26th day of February, the levy on the same having been made on the l9th day of said month. * * * From the testimony it appears that at the time said levy was made there was rent to the amount of $838.60 accrued. From Mr. Greenwood’s claim, as filed with sheriff, it appears that he only claimed rent to the amount of $736.60. In either case the amount realized from the sale as aforesaid is insufficient to satisfy the claim of Greenwood, there being no evidence to show that Greenwood’s claim was incorrect or illegal.” * * *
    Lanahan filed the following exceptions to the report with the auditor:—
    1. That the auditor erred in not allowing the said J. K. Lanahan, the plaintiff, the whole amount of the fund distributed by him.
    3. That the notice of said Greenwood to the sheriff of alleged rent in arrear, was insufficient in law, and the same should have been excluded and thrown out by the auditor.
    The auditor adhered to his report.
    The Court of Common Pleas (Sterrett, P. J.) sustained the exceptions, and decreed to-Lanahan the sum which the auditor had awarded to Greenwood.
    Greenwood appealed to the Supreme Court, and assigned the decree for error. ■

      N. W. Shafer, for appellant.

      W. W. Power and R. J. Power, for appellees.
   Mr. Justice Mercur

delivered the opinion of the court, November 26th 1875.

This contention is between claimants for the money raised by a sheriff’s sale of the personal property of one. Hardman: When levied on and sold, it was on lands of the appellant, but in possession of Hardman. The appellant claimed as landlord for rent in arrear, and the appellee as the plaintiff in the execution. The auditor appointed to distribute the fund awarded it to the appellant. On exceptions filed, the court sustained them, and decreed the money to the appellee. From that decree this appeal was taken.

The assignments of error are to the court having sustained those exceptions. The third relates to the sufficiency of the notice given to the sheriff. Having been accepted and acted on by him, it was clearly too late for objection to its sufficiency thereafter. The other assignments raise the question whether the evidence proves the rent to have been due and in arrear on an existing tenancy.

The auditor, not very distinctly, but impliedly, found these facts in the affirmative. An examination of the evidence returned with his report, discloses these facts, to wit: At the time of the levy and of the sale, Hardman was undoubtedly in possession of the premises, under a written lease from the appellant. It bore date April 1st 1874, and was for one year. The annual rental was $1008.20, or $88.60 payable monthly in advance. On one portion of the premises the rent was to commence at the date of the lease, on the other, not till the 12th of June 1874. The levy and sale were made in February 1875.

There is no evidence of the payment of this rent. The fund in court for distribution was insufficient to pay the rent which accrued prior to the levy. It appears, however, that the_lease was not, in fact, signed by Hardman until a short time before the levy. If the claim of the appellant rested on this written lease, signed at that late day, without any antecedent agreement to support it, the objection of the appellee would be unanswerable.

A further examination of the testimony shows the appellant testified “ the contract was made on or before April 1st 1874; the contract was completed, but not put in writing at that time.” He further testified, “ the lease referred to was reduced to writing— being the same lease offered in evidence.”

The wife of the appellant testified: “ Mr. Hardman has been in possession since April 1st 1874.” Appellant further swore: “I signed the lease in evidence some time in June, and took it down for him to sign.” It also appears that the appellant again took the lease, to Hardman to sign in October of the same year. At one time he alleged he had not time to sign it — was going out; at another time refused to sign on account of having no witness.

Thus it appears, without the aid of the written lease, the appellant proves a parol lease, entry under it and continued occupation. None of these facts are contradicted by any evidence in the case. It follows, then, the auditor was correct in his conclusions and his report should have been confirmed. The learned judge therefore erred in decreeing the money to the appellee, and it must be reversed.

Decree reversed, with' costs to be paid by the appellee, and it is ordered that the record be remitted to the court below, that a decree may there be made conformably with this opinion.


author: Pee Cueiam.

text:
    Beymer versus Bonsall.
    1. An agent making a contract in his own name, without disclosing his agency, is liable to the other party.
    2 The other party acts on the agent’s credit and is not bound to yield his right to hold the agent personally merely because he discloses a principal who is also liable.
    3. The principal is liable because the contract was for his benefit, and the agent is benefited by the principal being pursued by the creditor, as there can be but one satisfaction.
    4. The agent cannot discharge himself afterwards by putting the creditor to his election ; being already liable he can be discharged only by satisfaction.
    5. The principal cannot compel the 'creditor to elect his action or to discharge either himself or his agent; he can defend his agent only by making satisfaction.
    6. Plaintiff demurred to defendant’s plea; without deciding the demurrer, the court directed the case to go to trial, reserved the question raised by the demurrer and entered judgment for plaintiff on the reserved question. Held, that judgment should have been entered directly on the demurrer; but that not being substantial error the judgment was treated as if so entered.
    October 13th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mer.cur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of .Allegheny county: Of October and November Term 1875, No. 115.
    This was an action of assumpsit commenced June 2d 1871, by Sterling Bonsall against Simon Beymer.
    The plaintiff declared that on the 17th of November 1870, in consideration of $1000, paid by the plaintiff to Isaac Wagner and Richard Leech, brokers and agents of the defendant, he promised to deliver to the plaintiff, at or near Pittsburg, 5000 barrels of petroleum, at any time from January 1st to June 30th 1871, upon ten days’ notice to Wagner & Leech from the plaintiff, at 10-| cents per gallon on delivery ; that the plaintiff, on the 12th day of June 1871, ordered Wagner & Leech to deliver 5000 barrels of petroleum, but Wagner & Leech refused to do so.
    The defendant pleaded:—
    1. That the plaintiff at September Term 1871 of the Court of Common Pleas of Allegheny county, impleaded Wagner & Leech on ‘the same cause of action as that upon which the present suit was founded, and did thereby elect to acquit and discharge the defendant of the same.
    2. That in the same case he recovered judgment against Wagner & Leech for $5651.25, on the same promises and undertakings.
    The plaintiff demurred to the plea, and assigned as cause of demurrer:—
    1. That it did not appear that because of a judgment recovered as was averred in the plea, the plaintiff has not also a cause of action against the defendant.

      2. That the plaintiff did not acquit the principal by a recovery of a judgment against the agent.
    The court did not decide upon the demurrer, but permitted the case to go to the jury.
    On the trial the plaintiff gave in evidence the following papers :—
    “Pittsburg, November 17th 1870.
    “ For and in consideration of the sunffof $1000 to us in hand paid by Sterling Bonsall, Esq.j receipt of which is hereby acknowledged, we hereby bind and obligate ourselves to deliver to said Sterling Bonsall, or his assigns, should he or they call upon us so to do, at any time from January 1st to June 80th 1871, both days inclusive, 5000 barrels of good green merchantable crude petroleum. * * * If said oil be called for, this calb becomes a contract. Ten days notice shall be given us before delivery, and said Sterling Bonsall, or his assigns, hereby agre* to receive and pay for same, cash on delivery, at the rate of 10J cents per gallon in lots, as gauged and delivered. Wagner & Leech.”
    “Pittsburg, November 17th 1870.
    “ Mr. Simon Beymer-:
    “ By your authority, and for your account and risk, we have issued to Sterling Bonsall an instrument giving him the privilege (in consideration of his paying us $1000 cash, receipt of which you hereby acknowledge) of calling upon us to deliver to him 5000 barrels crude petroleum, any time from January 1st to June 30th 1871, both days inclusive, at or near Pittsburg. Payment to be made if the oil be called, at the rate of 10J cents per gallon, cash on lots as gauged and delivered.
    Wagner & Leech, Brokers.
    By J. F. Leech.”
    “ I hereby agree to the transaction, herein described, adopt it as mine, and accept as my own all the Labilities assumed by Wagner & Leech in issuing said instrument. S. Beymer.”
    The court instructed the jury to find for the plaintiff, the facts being.undisputed, subject to the opinion of the court on the question, whether under the demurrer to the defendant’s pleas the judgment should be for the defendant..
    The jury found a verdict for the plaintiff for $6300.
    The court (Stowe, J.) afterwards entered judgment for the plaintiff on the reserved question.
    The defendant took a writ of error and assigned for error the entering judgment for the plaintiff.

      Gr. Sidras, Jr., for plaintiff in error.
    When the party dealing with an agent, and, with knowledge of the agency, elects to make the agent his debtor, he cannot afterwards have recourse to the principal: 2 Kent’s Com. 633; Paterson v. Gandassequi, 15 East 62; Addison v. Gandassequi, 4 Taunton 574; Thomson v. Davenport, 9 B. & C. 78. Where a creditor proceeds against a factor and obtains an award of arbitration against him, it is an election to treat the factor as his debtor, and he cannot enforce the claim against the principal. Though not actual, it is legal satisfaction for the debt: Merrick’s Estate, 5 W. & S. 17; Emery v. Fowler, 39 Maine 226 ; Campbell v. Phelps, 1 Pick. 62 ; King v. McClean, 15 N. H. 9.

      T. J. Keenan (with whom was D. W. Sellers), for defendant in error.
   Judgment was entered in the Supreme Court, October 28th 1875,

Pee Cueiam.

Undoubtedly an agent who makes a contract in his own name without disclosing his agency is liable to the other party. The latter acts upon his credit and is not bound to yield up his right to hold the former personally, merely because he discloses a principal who is also liable. The principal is liable because the contract was for his benefit, and the agent is benefited by his being presumedly the creditor, for there can be but one satisfaction. But it does not follow that the agent can afterwards discharge himself by putting the creditor to his election. Being already liable by his contract, he can be discharged only by satisfaction of it, by himself or another. So the principal has no right to compel the creditor to elect his action, or to discharge either himself or his agent, but can defend his agent only by making satisfaction for him. We think no error was committed by the court below, except in the form of the reservation. Judgment should have been given directly on the demurrer itself and not by way of a reserved point upon it. This, however, is not a substantial error and the judgment may be treated as entered upon the demurrer. • Judgment affirmed.


text:
    Reed versus Allegheny City.
    1. A person natural or artificial is not liable for the acts or negligence of another, unless the relation of master and servant or principal and agent exist between them.
    2. When an injury is done by a person exercising an independent employment, the person employing him is not responsible to the party injured.
    3. This doctrine relates to cases where the purpose of the contract is lawful and the owner of the property on which the power is to be exercised can lawfully commit its performance to others.
    4. A city employed a contractor to grade a street; in performing his contract he threw dirt, stone, &e., on a lot abutting the street. Held, that the city was not liable to the lot-holder for the injury.
    5. Allen v. Willard, 7 P. P. Smith 374, followed.

      October 13th 1875.
    Before'A&new, C. J., Sharswood, Williams, Mercur, Gordon, Paxton and Woodward, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny 'county: Of October and November Term 1875, No. 72.
    This was a scire facias on a municipal lien for $934.50, entered January 8th 1874, by the Mayor of Allegheny, on a lot of ground on Rolla street, of which lot James Reed was the owner, for grading, &c., of that part of Rolla street on which the lot abutted. The scire facias was issued against Reed to January Term 1874 of the court below.
    The Act of April 5th 1870, Pamph. L. 751, authorized the city to grade, &c., any street, &c., and collect the cost from owners of property abutting on the street, notice to be given of the assessment, that errors or mistakes might be corrected, and after correction the assessment to be delivered to the controller, and if not paid within thirty days, he to hand it to the city solicitor, who should file a lien against the particular lot, and collect the amount assessed, with five per cent, attorney’s commission.
    On the 4th of April 1873, the city entered into a contract with Frederick Gwinner, by which he agreed, “ at his own expense, to furnish all the materials and work necessary for the grading of Rolla street from, &c., and to grade and pave the same in accordance with the plan and specifications to be furnished by the city engineer, the whole work to be performed, &c., under the directions and to the satisfaction of the city engineer and the committee on streets, on or before July 1st 1873.” The contractor to be paid “ out of the collections under the Acts of Assembly in such case made and provided, of the money due therefor from the property fronting and abutting on said street, &c., according to the estimates or measurements certified to by the city engineer,” his decision to be “final and conclusive. * * * The disposition of the surplus earth and materials and everything relating to the work herein undertaken by (Gwinner) shall be in accordance with existing ordinances of the city.”
    The defendant filed an affidavit of defence, setting out that the plaintiff, in grading the street, graded and cut down his land, “ and the eartS, stone, gravel and dirt taken from his said land and from said Rolla street, was by the plaintiff cast, &c., on the defendant’s land adjoining, &c., which resulted in damage to the defendant, to an extent far exceeding the plaintiffs’ claim,” &c.
    The case was tried January 7th 1875.
    The plaintiffs gave evidence of their claim and rested.
    The defendant then made the following offer of evidence :—
    “ To show, by the witness on the stand, that F. Gwinner was the contractor with the city, the plaintiffs, for the grading of Rolla street, in front of defendant’s property, and that he, said Gwinner, by himself and servants, deposited the earth, rock and gravel removed in grading said street, upon the property of the defendant abutting on said street, against the consent of the defendant, and that the defendant has sustained damage far in excess of the amount claimed in this case, to be followed by evidence showing that the money claimed in this case, when collected, is to be paid to said F. Gwinner, the contractor, and that the plaintiff is acting as the agent of the said F. Gwinner, in attempting to collect the money for said grading.”
    This was objected to by the plaintiff because under the contract in evidence the .city contracted with F. Gwinner to do the work, and is not responsible for his 'negligence or trespasses, but defendant’s action is against him alone; and further, that the claim in the contract relative to payment to him was only intended to define the time of payment, and did not make him a substantial party to the proceedings.
    The court rejected the offer and sealed a bill of exceptions.
    The court charged the jury that the defendant had shown no defence to the claim in this case, and that their verdict should be for the plaintiff for the amount of the claim.
    The verdict was for the plaintiff for $1065.96.
    The defendant took a, writ of error; he assigned for error the rejection of his offer of evidence and the instruction of the court.

      S'. H. Greyer, for plaintiff in error.

      W. B. Rogers, for defendant in error,
    cited Schenley v. Allegheny, 1 Casey 128; Hutchinson v. Pittsburg, 22 P. F. Smith 320; Allegheny v. Blair, 24 Id. 225.
   Judgment was entered in the Supreme Court, October 18th 1875,

Per Curiam.

In Allen v. Willard, 7 P. F. Smith 374, it is said that the principle to be extracted from these cases is that a person natural or artificial is not liable for the acts or negligence of another unless the relation of master and servant, or principal and agent, exist between them; and that when an injury is done by a person exercising an independent employment the party employing him is not responsible to the person injured. This doctrine has regard to cases where the purpose of the contract is entirely lawful, and where the owner of the property upon which the power is to be exercised can lawfully commit its performance to others. See also Painter v. Pittsburg, 10 Wright 213. These principles rule this case. The trespass of the contractor here cannot be visited upon the city. The street was under the power and control of the city for the improvement made upon it, and the contractor exercised an independent employment.

Judgment affirmed.