text:
    Gill, for use of Rankin, versus Henry.
    1. A mortgage or bond made with the intent to defraud creditors, with an agreement on the part of the mortgagee not to enter the same of record, is invalid, and such an agreement cannot be set up as a defence to an action on the mortgage by the mortgagee or his assignee.
    2. If a transaction is covinous, and the intent was to cover the property from creditors, in case of embarrassment of either party to it, neither one nor the other can set up the fraud as between themselves to defeat the other of any claim under it. A mortgage thus given is good as between them; it would be void only as against the interests intended to be defrauded.
    3. A party to such a transaction cannot give in evidence his own fraud in defence against his own act, whether it be an absolute deed, or a mortgage, or a confession of judgment, and no matter how it may be mingled with other arrangements or agreements between the parties.
    October 8th 1880.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    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.

      A. B. Hay and Slagle & Wiley, for plaintiff in error.
    Though we have made a number of assignments of error they are resolvable into one question, which may be briefly stated as follows: The bond and mortgage having been executed and delivered to Gill by Henry for the purpose of hindering, delaying and defrauding creditors, and without any other consideration, can he now set up that fact as a defence to the bond in the hands of the plaintiff to whom it was assigned by Gill ?
    This case is fully covered by authorities under circumstances which cannot be distinguished from the facts of this case: Sherk v. Endres, 3 W. & S. 255; Killinger v. Reidenhauer, 6 S. & R. 531; Foster v. Waltor, 5 Watts 378 ; Murphy v. Hubert, 4 Harris 50 ; Evans v. Dravo, 12 Id. 62 ; Hendrickson v. Evans, 1 Casey 441; Williams v. Williams, 10 Id. 312; Blystone v. Blystone, 1 P. F. Smith 373. It is apparent from these cases that Gill might have recovered upon the bond for his own use ; and it is not suggested in any case we have found that a suit could not be maintained in his name for the use of another. If he could recover, it must be shocking to every sense of justice to hold that a party to whom he had assigned it in payment of his debt could not recover merely because he had not inquired of his accomplice whether the certificate of no defence executed by him, and left in possession of Gill, was a part of a scheme to defeat and delay his creditors, or to enable Gill to impose upon an innocent and confiding client.

      D. T. Watson and W. B. Bodgers, for defendant in error.
    The covinous transfers and conveyances which the law avoids as to creditors and holds good as between the immediate parties, are executed transactions, which, if permitted to stand, would have the noxious effect the statute seeks to avoid. Henry’s own story, in the court below, was the sole evidence as to this alleged attempt to defraud. Doubtless it may be true that Gill intended to use the bond and mortgage for his own purposes, but so far as Henry was concerned, believing his counsel, he thought it was true that the bond and mortgage lying in Gill’s safe would keep him out of court, and that without any dishonesty on Henry’s part. By this transaction did Henry hinder, delay or defraud his creditors ? Evidently not, because a bond and mortgage lying in Gill’s safe was no more effective to produce such a result than if they had not been signed, and as Henry never agreed to have them taken out of Gill’s office, he never did do anything by which Henry’s creditors could be delayed, hindered or defrauded. This being so, if Gill in violation of his agreement took the bond out.of his safe, and either sued upon it to collect it, or had judgment entered thereon, would the law close Henry’s mouth from testifying to the manner in -which Gill obtained tbe bond; for unless it would do so as to Gill, it would not do so as to Rankin, Gill’s assignee.
    October 25th 1880.
   Mr. Justice Green

delivered the opinion of the court,

This was a judgment bond given by the defendant Henry to the legal plaintiff, Gill, for the payment of $8000, dated April 28th 1875. It was accompanied by a mortgage of same date and amount, which was recorded April 30th 1875. On June 1st .1875, Gill assigned the bond and mortgage to the plaintiff, Isaac Rankin, and handed him at the same- time a certificate of no defence signed by Henry. The assignment was made in consideration of $5795, which Gill owed Rankin on May 1st 1875, for moneys which Rankin' had at various times left with Gill for investment. As between Gill and Rankin, therefore, a good consideration passed for the transfer of these securities. On January 26th 1876, Gill, without the knowledge of Rankin, entered satisfaction of the mortgage, and in the fall of 1877 he fled the country in consequence of discreditable transactions in which he was engaged. When Rankin discovered that Gill had satisfied the mortgage of record he entered judgment on the bond in suit on December 10th 1877. Subsequently, on the application of the defendant, the judgment was opened, and the case was tried before a jury who rendered a verdict for the defendant under instructions from the court, which are now brought before us for review by various assignments of error.

The actual defence set up was that the bond was given without any consideration. The reason why it was given appears in the testimony of the defendant himself. He said on the trial, “ I got into trouble with the bank, the Allegheny Trust Company. I came over to Mr. Gill. They were talking of suing, or had. They were commencing to sue, and I didn’t want to have any trouble incurred, and I came over to Mr. Gill and asked him what I should do, and he said he could fix it for me, and I asked him howr. He said that he could draw up a bond and mortgage, and it could lay in his office, which would keep me out of court; I would have no trouble. I told him I didn’t want to avoid payment of the assessments as they became due. I did not want to be sued. I was afraid of being sued by creditors. When I came to him I knew I was liable for all the debts of that concern. It was with that view I made that mortgage; he said it would keep the property safe for me — keep the property safely covered up.” This language is so extremely plain that there is no difficulty in understanding it. It proves beyond all question that the bond and mortgage in question were given for the express purpose of hindering, delaying and defrauding the creditors of Alexander Henry, the defendant. No amount of refinement or speculation can clothe ■it with any other meaning. The plain, blunt truth of the case is, that a defendant in a judgment makes defence against it on the express ground that it was given without consideration for the purpose of defrauding his creditors. That such a defence would be absolutely worthless, even against the plaintiff himself, thepartioeps criminis, has been so many times decided by this and other courts, that it would be a waste of time to cite the authorities. Neither the very able counsel for the defendant, nor the learned judge of the court below, pretends to dispute the doctrine. Yet this defence was permitted to prevail in this case against an innocent third person, who received these securities in consideration of a large sum of money, $5795, which was due him previous to, and at the time of, the assignment from Gill, who was the holder of them. It is not pretended that Rankin had any' knowledge whatever of the original transaction. In point of fact he was entirely ignorant of it. How did it happen that the defence was successful ? On the trial a very ingenious theory was set up, that it was agreed between Henry and Gill, at the time the bond and mortgage were given, that they should remain in Gill’s office. It was inferred from this that they -were not to be entered of record, and that, therefore, it was a fraud on Gill’s part to record the mortgage, and for either him, or any one claiming title under him, to enter up the judgment. It was argued that this was an independent feature of the transaction which would prevent Gill from claiming -under either security, and as it would be a good defence against him, so it would be also against any assignee of his who failed to make special inquiry of the defendant as to whether he had any defence against the instruments. The familiar doctrine was invoked that the assignee of a bond takes it subject to all defences of the obligor against the obligee. This theory received the sanction of the court below, and the case was left to the jury with the instruction that, if they believed there was such an agreement between Gill and Henry, it would be a fraud upon Henry by Gill to enter- up the securities and attempt to collect them, which the law would not permit; and that as Rankin had merely taken an assignment of the bond and mortgage in consideration of a previous indebtedness, he could not be regarded as an innocent purchaser for value, and in that event, their verdict must be for the defendant. Upon what testimony this question of fact was left to the jury we do not certainly know. The evidence has not been printed and is not before us. But as Gill was a fugitive from justice and was not examined, and as the transaction occurred between Gill and Henry alone, and as only testimony delivered by Henry himself is quoted in support of the ruling of the learned judge, we infer there was no other testimony in the case than his upon which the jury could have acted. We have considered it all, and in our opinion it is entirely insufficient to sustain the verdict, and should not have been left to the jury as competent for the purpose for which it was submitted. The proposition of fact is that there was an agreement between Henry and Gill that the bond and mortgage were not to be entered of record or collected. We do not find a particle of testimony to that effect. In what we have heretofore quoted there is but a single expression that affords the basis of an argument to that effect, and that was this, “ He s.aid he could draw up a bond and mortgage and it could lay in Ms office, which would keep me out of court. I would have no trouble.” But this proves nothing more than that Gill said the papers could lie in his office. It does not prove an agreement even to that effect, nor that their remaining in Gill’s office was any essential part of the transaction. But even if it did, such an agreement is very far short of an engagement not to enter them of record. Without being so entered they were of no more value for the purpose for which they were given than so many pieces of blank paper. It will not do to say that Henry may have supposed or believed that they would have accomplished his purpose if kept secret. There is no evidence that he "was so utterly stupid as that. What he wanted was publicity not privacy, as to these papers. He wanted to keep his creditors at bay by having his property appear to be heavily- encumbered. But to deposit and keep the papers for such encumbrance in the safe of an attorney would prevent, and not in any manner promote, such appearance. The only other testimony quoted in the printed, argument of counsel for the defendant in support of his position, is the following :

Q. “Mr. Henry, I wish you would state what, if anything, occurred — what, if anything, was said between Mr. Gill and yourself, as to where this bond and mortgage was to be kept and for whom?”

A. “It was to be kept in Ms office. He said he would leave it in the safe. It was to be kept in the office.”

Q. By the court: “ For whom ?”

A. “There was nothing said about whom, your Honor.”

He would not even say it was to be kept for himself. There is not a word in this testimony about any agreement that the papers should not be entered of record, nor even that they should not be collected. There is nothing in it but a declaration of Gill’s that the papers should be lodged and kept in his safe, a very suitable precaution for their preservation. It was a mere matter of custody of the corpus of the instruments. As we have before said wre regard this testimony as entirely insufficient to prove an agreement that the bond and mortgage were not to be entered of record or collected, and that the case would have to be reversed on that ground. But even if such an agreement had been made and were fully proved, we could not permit it to have any efficacy for another reason. The very utmost effect that could be given to such an arrangement would be to regard it as a parol agreement by Gill to hold the bond and mortgage for the benefit of Henry. But it has been held time and again that such an agreement is in itself a fraud, and will not be enforced. In the case of Murphy v. Hubert, 4 Harris 50, the present chief justice, while sitting as district judge, used the following terse and forcible language on this subject: “Now if the fact was so, I instruct you that it is not competent for any persons claiming under Samuel Murray to show a parol trust either for himself or his children, said children being mere volunteers. Courts of justice do not sit to extricate a rogue from his toils. To enable the party to show a parol trust in the face of an absolute deed, the purpose must have been an honest one, else by such fraudulent device a dishonest man would be sure never to lose, and he has the chance of gaining. He may accomplish his fraudulent design, and then he is sure to get back his property, or, what is the same thing, keep it for his family; this would be affording encouragement to such frauds. On the contrary, it is the policy of common sense and common law to environ such a person with all possible perils, and to make it appear that honesty is always the best policy.” This court, fully approving of the foregoing, said, on p. 57 : “ If there be a point settled on reason and authority it is, that a deed intended to defraud creditors, although void as against creditors, yet is valid as against the grantor and those for whose benefit it is designed, whether it be the grantor himself, his child or children, or a stranger. * * * That a trust cannot be enforced when it is designed to effect a fraud on creditors, is settled by authority. The cases, without exception, decide that such a trust is void in itself, and therefore incapable of being made the foundation of a right in others.”

In the case of Williams v. Williams, 10 Casey 312, a scire facias was brought upon a mortgage by the mortgagee against the administrators of the mortgagor. On the trial the defence offered to be proved was thab the .mortgage was without consideration, and was taken by the plaintiff from his two sons, soon after their attaining the age of twenty-one years, with the understanding that it should not be collected unless they failed in business. Speaking of this defence, this court said: “If the transaction were covinous, and the intent was to cover the property from creditors, 'in case of embarrassment of either party to i-t, neither one nor the other could set up the fraud as between themselves to defeat the other of any claim under it. The mortgage would be good as between them; it would be void only a.s against the interests intended to be defrauded.”

In Blystone v. Blystone, 1 P. F. Smith 373, which was, as this is, the case of a judgment given by confession and opened to be tried on the merits, and the defence was that it was given to defraud creditors, this court, Thompson, J., said: “If parties concoct a scheme to defraud others, and resort to a judgment to effect their object, both having in view the same thing, there is no fraud between them assuredly of which either can complain or call on a court for relief. Courts will not move to change the condition of the parties any more readily in such case than they would to enforce an executory contract, which, as a general rule, they will not do.”

But it is useless to multiply citations. The same principles will be found in Sherk v. Endres, 3 W. & S. 255; Evans v. Dravo, 12 Harris 62; Hendrickson v. Evans, 1 Casey 441, and many other cases. They all proceed upon the idea that the defendant cannot give in evidence his own fraud in defence against his own act, whether it be an absolute deed or a mortgage or a confession of judgment, and no matter how it may be mingled with other arrangements or agreements between the parties. Eor these reasons we are- of opinion that the learned judge of the court below was in error in his general charge and in his answers to points, complained of in the several assignments of error.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Davison’s Appeal.
    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.
    October 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    ' Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 139. In Equity.
    Thomas Chadwick died in March 1854, leaving a will, which, inter alia, contained the following provision :—
    “I do will that my wife, Jane Elizabeth Chadwick, receive one-third of the proceeds of my entire estate as long as she lives, and that the balance of my estate be equally divided between my four children, Mary Emma, James Madison, Caroline Catharine and Jane Elizabeth Chadwick, when they arrive at age, and it is my desire that the family all live together.”
    The land was afterwards divided among the four children. Mrs. Chadwick intermarried with Henry B. Stotler and moved from the premises.
    In May or June 1875, Mrs. Jane E. Landwehr, formerly Jane E. Chadwick, and her husband applied to John S. Davison for a loan of $4000 for the purpose of lifting some encumbrances on the land, and offered as security for said loan a mortgage on her land aforesaid. Mr. Davison referred the matter to his attorney for examination of title, who prepared a paper for Mrs. Stotler and her husband to sign, releasing her interest in the premises in controversy. Mrs. Stotler objected to signing the paper because it was a general release of her dower or claim upon the land. She said, however, that she would make no claim against the mortgage that was about to be negotiated to Mr. Davison. Mr. Stotler, her husband, was present and assented to this arrangement.
    The land having been sold on the mortgage and purchased by Davison, Mrs. Stotler filed a bill in equity to recover her dower. Davison filed an answer, and the case was referred to a master, William A. Stone, Esq., who found substantially the above facts. The remaining material facts will be found in the opinion of this court.

      Thomas C. Lazear, for appellant.
    It would hardly be denied under the facts, that Mrs. Stotler would be estopped from setting up the claim she now makes, if she had been unmarried at the time the loan was negotiated. No clearer case of an equitable estoppel could be imagined as against a person sui juris. The question then presents itself: Does the fact of coverture alter the case so as to enable Mrs. Stotler, with the assistance of her husband, to commit a fraud which she would not be allowed to do if she had remained a widow? The benefit which her daughter received in this loan, at her solicitation, was a consideration which really inured to the mother’s advantage. And why, then, should she not be held to the arrangement, on the same principle which led to the decision of this court in Patterson v. Robinson, 1 Casey 81, where a judgment confessed by a married woman for purchase-money was determined to be good, as against the land sold to her. It was said in that case that the disability of coverture was intended to be a shield not a weapon for mischief. See Ramborger v. Ingraham, 2 Wright 146; Glass v. Warwick, 4 Id. 140 ; Fulton v. Moore, 1 Casey 476 ; Couch v. Sutton, 1 Grant 114; McCollough v. Wilson, 9 Harris 436; Snively v. Wright, 2 Ohio 506; Connelly v. Branstler, 3 Bush (Ky.) 702; Cooley v. Steele, 2 Head (Tenn.) 603; Carpenter v. Carpenter, 10 Evans 194. Glidden v. Strupler, 2 P. F. Smith 400, on which the master based his decision, is clearly distinguishable from this case.
    In no event can Davison be made to respond for proceeds which accrued before he became the owner of the property, whatever might be the liability of his co-defendants, Mr. and Mrs. Landwehr, in that respect. For if Davison is liable at all to account to plaintiff for such proceeds, it is only on the ground that 'he became a trustee for Mrs. Stotler for her share of what he actually received: Paul v. Paul, 12 Casey 282. But the decree recommended by the master and adopted by the court below extends this liability back to February 22d 1866, when Mrs. Stotler was married a second time, disregarding even the Statute of Limitations.
    October 18th 1880.

      Robb & Fitzsimmons, for appellees. — Mrs.
    Stotler was not bound by her agreement and was not estopped from claiming her interest in the land: Glidden v. Strupler, 2 P. F. Smith 400 ; Ulp v. Campbell, 7 Harris 361; Peck v. Ward, 6 Id. 506; Darlington’s Appeal, 5 Norris 517. The bill in this case was filed October 18th 1877. The statute cannot be a bar, as the claim is only for arrears of dower until 1866. If the heir sell the land, the widow will be entitled to damages against the tenant from the time of her husband’s death, although the tenant may not have been so long in possession : Seaton v. Jamison, 7 Watts 533 ; Clark v. O’Donaghy, 7 Johns. 247; Winder v. Little, 1 Yeates 152; Lyle v. Richards, 9 S. & R. 368; Thompson v. Morrow, 5 Id. 289; Shirtz v. Shirtz, 5 Watts 255.
   Mr. Justice Sterrett

delivered the opinion of the court,

The learned master was clearly right in deciding that the will of Thomas Chadwick gave his widow, now Mrs. Stotler, one of the appellees, the same interest in the real estate of which he died seised, as she would have been entitled to under the intestate law. In the second paragraph of his will he directs that his widow shall receive one-third of the proceeds of his entire estate as long as she lives, and that the residue of his estate should be equally divided among his four children. If he had died intestate she would have taken, under the law, “ one-third part of the real estate for the term of her life.” The devise of “ one-third of the proceeds,” &c., gave her precisely the same interest in the land: Carlisle v. Cannon, 3 Rawle 488. Inasmuch then, as her interest in the real estate was the same, whether she took under the will or under the intestate law, it was wholly unnecessary for her to make any election in regard to it; and the principle applies that, where the interest under both is the same the devisee takes under the intestate law rather than under the will. Mrs. Stotler was, therefore, invested with that interest in the land which the law gives to the widow of an intestate who dies leaving issue. Was that interest divested? The master found that when the money was loaned by appellant to Mrs. Landwehr, and the mortgage taken to secure the same, Mrs. Stotler agreed verbally that she would not assert any claim prejudicial to the mortgagee. Based upon this fact, the contention of appellant was, that inasmuch. as he had purchased the land at sheriff’s sale under the mortgage, Mrs. Stotler was bound by her agreement, or at least was estopped thereby from setting up any claim to the land as against him. This proposition was rightly held to be untenable ; that, being a married woman, Mrs. Stotler’s interest in the real estate could not be thus divested ; that she was not bound by her agreement, nor was she thereby estopped from claiming her interest in the land. This conclusion was undoubtedly correct, and is abundantly fortified by authority. While a different rule has been recognised in some of our sister states, it has been settled in this state by an unbroken line of decisions, that the interest of a married woman in real estate cannot be divested except in the mode pointed out by our statute, and that she cannot be estopped by acts or declarations, which in the case of a feme sole would operate as an estoppel: Peck v. Ward, 6 Harris 506 ; Ulp v. Campbell, 7 Id. 361; Glidden v. Strupler, 2 P. F. Smith 400. It follows, therefore, that she was entitled to a decree; but, should it have included the arrears due her at the date of the sheriff’s sale ? We think not. Appellant’s mortgage, on which the property was sold, appears to have been the first lien on the land after the widow’s interest was acquired, and the effect of the sale was to divest the amount due her and in arrear at that time. In Wertz’s Appeal, 15 P. F. Smith 306, it was decided that where the owner of land charged with a widow’s thirds mortgaged it, and afterwards a judgment was recovered against him, under which the land was sold, there being then arrears of interest due the widow, the purchaser took subject to the arrears of interest as well as to the mortgage. The reason for the rule announced in that and kindred cases is, that a mortgage intervened between the estate, or charge out of which the arrears were payable, and the judgment under which the sheriff’s sale was made. But, where, as in the present case, no mortgage intervenes, the arrears of dower, capable of ascertainment, are divested and thrown upon the fund produced by the sale; and it is the duty of those interested to see that the property sells for sufficient to cover such arrearages. This principle is distinctly recognised in Dickinson v. Beyer, 6 Norris 274, in which the authorities are collected, and the distinction existing between the different classes of cases clearly pointed out. It is unnecessary to do more than to refer to the opinion in that case for a full and lucid exposition of the law on the subject. Land charged with dower had been sold on a judgment immediately subsequent to the charge, and it was held that the arrears due at the time of the sheriff’s sale were discharged thereby.

From what has been said it follows that the amount due Mrs. Stotler at the time of the sheriff’s sale should not have been included in the decree. In other respects we discover no error.

Decree reversed, and it is now adjudged and decreed that Henry B. Landwehr, Jane E. Landwehr and John S. Davison, pay to Jane E. Stotler $>89.20, in full of her damages for detention of her dower, or interest in the nature of dower to October 1st 1880, and that on October 1st 1881, and annually on the first day of October in each and every year thereafter, during the life of the said Jane E. Stotler, the said defendants pay to her the sum of $40; and that payment of the said several amounts be enforced by execution in the nature of a levari facias against the seventeen acres and one hundred and forty-one perches of land only, as described in the fourth section of the plaintiff’s bill; and that the said defendants pay the costs in the court below including the master’s fee fixed by the court; and that the appellees pay the costs of this appeal.


author: Mr. Justice Paxson

text:
    Cauley versus The Pittsburgh, Cincinnati and St. Louis Railway Company.
    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.
    October 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 197.
    These were two actions on the case, one by John H. Cauley, a minor, by his father and next friend, John Cauley, and the other by the father, the said John Cauley, against the Pittsburgh, Cincinnati and St. Louis Railway Company, to recover damages for injuries to said minor, and loss of service, &c., caused .by the alleged negligence of the company’s servants. The defendants pleaded “Not guilty.” The docket entries in both cases were the same, and they were tried'together.
    At the trial, before Kirkpatrick, A. L. J., the plaintiff offered to prove by Bridget Cauley “that on the morning of the 20th of September 1879, she came out of her house on the hillside opposite the Point Bridge, and above the defendants’ railroad and switches; that she saw defendants’ freight cars being shifted down the road and in motion; that she saw and heard the conductor of the train standing on the track, and close to the nearest switch in that vicinity, and close to the moving train, calling to and ordering a number of boys that were on a sand-car loaded with sand, and ordering them to get out of the car, in a very authoritative tone of voice; that discovering at the time that this small boy, John H. Cauley, was among the boys on the car, she spoke out and protested against the boys having to get off the car, at least her boy, while the cars were in motion; that she remonstrated with the conductor, and asked that they should not be put off until the cars should be stopped; that the conductor persisted in ordering the boys to get off while the cars were in motion; that while the conductor was giving such orders to get off, the larger boys jumped off the car on different sides of the track, that they were running on, and that her little boy, John Henry Cauley, then seven years, two months and six days old, jumped off also, and fell under a wheel of the car, and his leg was bruised so that it had to be amputated. Further, to prove by the witness that after the cars had started, and while in motion, and when the conductor was giving said orders, that a brakeman on the cars came toward the boys in a manner which indicated that he was about to enforce the orders of the conductor, and this immediately before the boys jumped off the car. This for the purpose of showing that those in charge of the train of defendants had acted carelessly and negligently in the premises, and had ordered the boys to get off the train at an improper time, when it was in motion; and also to show negligence on part of defendants.”
    Defendants objected to the offer as incompetent, and irrelevant generally, and because 'the offer discloses the fact that the plaintiff, the boy injured, was a trespasser at the time of his injury, being in a place where he had no right to be, and it fails to disclose any act of negligence upon the part of any employee of the company for which the company is itself liable. Objections sustained; testimony excluded.
    Also to prove by Mrs. Cauley and others, that on the 20th of September last, at or near the south end of the Point Bridge, in the city of Pittsburgh, upon the railway track of the defendants, John Henry Cauley, a son of the witness, and of John Cauley, plaintiff in one of these suits on trial, a child of the age of seven years, was playing on a flat-car loaded with sand that was upon the switch of defendants’ road, and while he was upon said car one of the defendants’ freight conductors, and others, servants of defendants’ company, caused said car to be moved or shifted, and having by means of a locomotive engine in charge of defendants’ employees, under direction of said conductor, commenced to move or shift said car and others, running the train down the track, or switch, at a rapid rate of speed (the said conductor of defendants having charge of said locomotive and cars at the time), in a careless, reckless and negligent manner, ordered the said child, John Henry Cauley, to get off said cal', and he repeated said order with oaths, and in an authoritative manner, while the cars were in motion, so that the said John Henry Cauley, and others, hoys of tender years, who were on said car, and so ordered off by said conductor, became frightened and jumped off said car by reason of said order, and the said John H. Cauley, in jumping off said car, fell upon the track, where his left leg was crushed and broken by a wheel of said car running over it, so that it became necessary to amputate the said leg below the knee, crippling him for life, and that he was and is greatly injured thereby.
    For the purpose of proving negligence on the part of the defendants in the premises, to be followed by evidence that said conductor, at the time and place in question, was warned by said Mrs. Cauley of the danger of driving her said child off said car, while it was so in motion, and at the time said child was so ordered off said car. And that said child was, at the time in question, and had been before that time, playing upon said car in the city of Pittsburgh, adjacent to a crossing of the street and upon the street, in a thickly-populated district, near rolling-mills, factories, &c., and near where plaintiff’s family and others, employees of these mills reside; and that said child was upon the said car without the consent of his parents. And this all to prove negligence on the part of the defendants.
    Objected to for like reasons, and objections sustained and evidence excluded.
    There being no other evidence, the court, as requested by defendants, charged the jury that the verdict should be for the defendants, adding, at plaintiff’s request, that the reason in so charging was because the court ruled out the plaintiff’s offers of evidence.
    Verdict and judgment in each case for the defendants. Plaintiff took this wait, and alleged that the court erred in excluding the foregoing offers of evidence.

      A. M. Watson, for plaintiff in error.
    The court below ruled both cases together, and treated the child as if it were an adult, entirely overlooking the important distinction between the legal responsibility of adults and infants of tender years.- A defendant is liable to an infant seven years old, for injuries resulting from negligence, though the plaintiff was a trespasser, and contributed to the mischief by his own act: Smith v. O’Connor, 12 Wright 221; Pennsylvania Railroad Co. v. Lewis, 29 Id. 33; Philadelphia & Reading Railroad Co. v. Long, 25 P. F. Smith 265; Philadelphia & Reading Railroad Co. v. Spearen, 11 Wright 300; Pennsylvania Railroad Co. v. Morgan, 1 Norris 134; Lynch v. Nardin, 1 Ad. & E. 442; Robinson v. Commonwealth, 22 Ves. 224.

      Hampton & Dalzell, for defendants in error.
    The court’s decision was not put upon the ground of. contributory negligence, so far as the boy was concerned, but on the ground that he was a trespasser injured without negligence on defendants’ part. A distinction is to be observed between the suit instituted by the father and that instituted by the boy himself. So far as the former is concerned, we submit that, under the authorities, there could be no recovery: Smith v. Hestonville Pass. Railway Co., 11 Norris 450. Now, as to the case of the boy himself, did the facts offered entitle him to recover ? Concede that he was incapable of contributory negligence, still he was a trespasser, and the company owed him no duty: Duff v. A. V. Railroad Co., 10 Norris 458; Flower v. Pennsylvania Railroad Co., 19 P. F. Smith 214; Cunningham v. Pennsylvania Railroad Co., October and November Term 1859, unreported : Knight v. Abert, 6 Barr 472; Philadelphia & Reading Railroad Co. v. Yeiser, 8 Id. 366. In this case the facts were admitted or proved, and the question of negligence was for the court: Goshern v. Smith, 11 Norris 435.
    November 8th 1880.
   Mr. Justice Paxson

delivered the opinion of the court,

It was said by Mr. Justice Strong in Philadelphia & Reading Railroad Company v. Hummell, 8 Wright, at page 278 : “ It is time it should be understood in this state that the use of a railroad track, cutting or embankment is exclusive of the public everywhere except where a way crosses it.” The same doctrine has been reiterated again and again in subsequent cases. In Mulherin v. Delaware, Lackawanna & Western Railroad Company, 31 P. F. Smith 366, it was said: “Except at crossings, where the public have a right of way, a man who steps his foot upon a railroad track does so at his peril. The company has not only right of way, but it is exclusive at all times and for all purposes,” and Railroad v. Norton, 12 Harris 465, was cited in support of this rule. Many other cases might be referred to were it necessary. We live in an age of steam and of rapid development. The world demands quick transportation. Increased speed necessarily involves increased danger. Holding as we do such corporations to a strict responsibility for negligence, it is our duty to give them a clear track. This rule is not only proper in itself but is necessary for the preservation of life. Its propriety is no longer a subject for discussion.

It ought also to be equally well understood that parents who permit their children to trespass’upon the track of a railroad are guilty of negligence. It is not only gross but culpable negligence, as it imperils the lives of the children so trespassing, as also the lives of the travelling public. A similar view was taken in Railroad Company v. Hummell, supra, where it was said that children “ cannot be upon the railroad without a culpable violation of duty by their parents or guardians.” It is very clear, therefore, that as to the suit brought by John Cauley in his own right for the injury to his son, he cannot recover. The child was upon the car where he ought not to have been by the negligence and want of care of his father. Ror does the offer of evidence ruled out by the court below tend to rebut the presumption of negligence on the part of his parents. On the contrary, it strengthens it. Assuming the offer to be true, it shows that the child was not only playing upon the car on the occasion when he received the injui-y, but that he had done so before. The location was near his parent’s house, probably in sight, as his mother saw the accident and called to the conductor. That the child was there without his father’s consent is not to the purpose. “ To suffer a child to wander upon the street has the sense of permit. If such permission or sufferance exist it is negligence:” Philadelphia & Reading Railroad Co. v. Long, 25 P. F. Smith 265. I apprehend few parents would consent to a child’s playing upon a railroad track or any other known place of danger. But many parents might neglect the precautions necessary to prevent it. In some instances it would require more than merely to caution a child against it. Positive prohibition followed by punishment for violation may sometimes be necessary. It too often happens that boys are allowed to wander about the streets and trespass upon railroad tracks with very little care or supervision of their parents. Whilst so engaged injuries of this character are likely to happen. Much as they are to be deplored and however much our sympathies may be aroused for one so injured, it would be unjust to compel a corporation or individual to make a pecuniary compensation for such accident, when it was the result of the lawful pursuit of a lawful business by such corporation or individual. Aside from this the defendant company owed the father of this child no duty. The father owed his child the duty of protection. The company did not. The evidence was properly rejected.

In regard to the suit brought for the child by his father as his next friend, it is sufficient to say that the child being unlawfully upon the car, the defendant company owed it no duty and is not liable for the injury. This was the principle upon which Railroad Company v. Hummell was ruled. In the recent case of Duff v. Allegheny Valley Railroad Co., 10 Norris 458, it appeared that a conductor of a train, in violation of the rules of the company, permitted a boy to sell papers on the train. By the alleged negligence of the company the boy was killed. The right of his mother to recover was denied upon the ground that the boy was a mere trespasser and the company owed him no duty. It is useless to multiply authorities. The rule is well settled and is sustained by reason and authority. Moreover, it is demanded by humanity. There are many unfeeling parents who not only neglect but maltreat their children. It would be cruel to such children to lay down a rule which would make it an object for unprincipled parents to expose them to injury and death upon a railroad track.

Upon the merits these judgments ought to be affirmed. But we notice that one writ of error has been taken to the .two cases. There is no authority for this. It is a practice that we will not encourage. Besides the Commonwealth loses the tax upon one writ. There should have been a separate writ of error to bring up each case. We have expressed our opinion upon the merits to avoid having our time occupied with the cases again. But we will not enter judgment.

Writ quashed.

Justices Trunkey and Sterrett concurred in quashing the writ, but not in this opinion, to which they dissented.


author: Mr. Justice Mercur

text:
    Einstein versus Jamison and Wife.
    1. To charge the separate property of a married woman with a mechanic’s lien for work and labor done or materials furnished, it must be alleged in the claim and proved on the trial that the work or materials were necessary for the reasonable improvement or repair of such separate estate, and substantially that they were so applied, and that the same was done and furnished by her authority and consent: Shannon a. Shultz, 6 Norris 481, and Kuhns v. Turney, Id. 497, followed.
    2. If the materials were furnished and used in the improvement of her property, and by her direction or with her knowledge or consent, and were reasonably necessary, and there was no agreement that her property should not be liable therefor, the law will give a lien thereon for the value of the materials, her promise to pay being implied.
    October 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    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.”
    November 8th 1880.
    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.

      Josiah Cohen and A. E. Weger, for plaintiff in error.

      J. S. Ferguson, for defendants in error.
   Mr. Justice Mercur

delivered the opinion of the court,

To charge the separate property of a married woman with a mechanic’s lien for work and labor done or materials furnished, it must be alleged in the claim and proved on the trial, that the work or materials were necessary for the reasonable improvement or repair of such separate estate, and substantially that they were so applied, and that the same was done and furnished by her authority and consent: Shannon v. Shultz, 6 Norris 481; Kuhns v. Turney, Id. 497.

This claim was for materials furnished and used in and about the alteration and repair of the wife’s house and in building an additional story to the kitchen. All the necessary facts were sufficiently averred in the claim filed. The defendants in error plead specially, averring that she made no contract or agreement for the work, and denying that she authorized the same to be done or agreed to pay for the work or materials; and alleged the same was done without her authority and without her consent. There was no denial that the work and materials were reasonable and necessary for the repair and improvement of her real estate. On this plea the parties went to trial. It presented the only issues the jury was sworn to try.

The contractor testified that Mrs. Jamison was present during a part of the time the contract for the job was being inade; that during its progress she came to his house to get him to do the work, and several times sent for him to - come and do it; she was frequently present directing as to the manner in which she desired the work done, and told him when she would make payment; that she went to the plaintiff in error and procured some of the lumber.

The plaintiff in error testified that he was frequently at the house during the progress of the work, that she was superintending it and ordering changes; and that she ordered shingles, boards and flooring from him, - and afterwards promised to pay him.' Another witness testified that he plastered the building under her instructions and she promised to pay him.' It was also shown that she paid the plaintiff in error a small sum to apply on his bill. The defendants gave no evidence tending to show that the improvements were not necessary for the proper and reasonable improvement and repair of her house, and none showing that all the materials therefor were not furnished by her authority and consent, and part of them on her express request.

In the point covered by the second assignment of error, the court was requested to charge that “ she was liable for any materials which were furnished by the plaintiff on her orders, if any.” As this point ignored other facts necessary to establish her liability, a simple refusal to so charge would not have been error; but the learned judge proceeded to say “she must not only have ordered them, but promised to pay for them, and they must, have been necessary.” In saying she must have “ promised to pay for them,” we think the learned judge erred. The other necessary ingredients being proved, the law will imply a promise to pay. While courts should carefully protect married women in the enjoyment of their separate property and not permit it to be unjustly charged with an encumbrance, yet they should not be permitted to enhance the value of their property at the expense of an innocent and confiding creditor. If the materials were furnished and used in the improvement of her property by her directions or with her knowledge and assent, and were reasonably necessary, and there was no agreement that her property should not be liable therefor," the law-will give a lien thereon for the value of the materials. In so far as the answers and charge covered by the assignments are in conflict with this opinion, the assignments are sustained, beyond that they are not sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    The Allegheny County Workhouse versus Moore.
    1. Unless the individual mémbers of a corporation are authorized to do so they cannot bind it by any express promise, nor can corporate engagements be implied from their unauthorized and unsanctioned acts or declarations.
    2. Corporate rights are not to be frittered away by loose and unauthorized declarations, made by persons who, at the time, had no authority to bind the corporation ; and this principle applies as well to individual directors and employees of the corporation as to strangers.
    October 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkby, Sterrett and Green, JJ.
    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.

      S. H. Greyer and W. B. Rodgers, for plaintiff in error.
    The defendant, being a public corporation, operated by a board of managers, consisting of five citizens, who are empowered by its charter to make contracts and transact all its business, cannot be bound by a contract unless the board has entered into it or authorized it to be entered into: Cooper & Grove v. Lampeter Township, 8 Watts 128; Allegheny Co. v. Leckey, 6 S. & R. 170. They never exercised the power, as far as the plaintiff was concerned. They had nothing to do with him in regard to the matter. It cannot be possible that they should be estopped under the circumstances from selling to Lockhart without making the defendant liable for the commissions claimed by the plaintiff, about $2600. He volunteered the information, and if any advantage was given the defendant by reason thereof, he cannot claim compensation.

      J. M. Stoner, for defendant in error.
    All that is required to entitle a broker to his commissions is, that he bring the parties together and that they enter into a contract of purchase and sale : Haines v. Begner, 9 Phila. R. 51; Clendennon v. Pancoast, 25 P. F. Smith 213; Reed v. Reed, 1 Norris 420; Keys v. Johnston, 28 P. F. Smith 42. The sale was completed hy the principal on the very terms submitted by the broker, and brings it within the ruling of the last cited case. The evidence was abundantly sufficient to warrant the court in referring the proof of Moore’s employment as broker to the jury : Valentine v. Packer, 5 Barr 333; Union Refining Co. v. Bushnel, 7 Norris 89.
    October 25th 1880.
   Mr. Justice Sterrett

delivered the opinion of the court,

It must be conceded that the plaintiff below had no right to recover without proving to the satisfaction of the jury, by competent and sufficient testimony, that he was employed by the corporation defendant to sell or procure a purchaser for the barrels it would manufacture during the year 1878, and that, in pursuance of such employment, he either sold the barrels or procured a purchaser for them. His action was grounded solely on these allegations of fact, all of which were denied by the defendant; and, of course, the burden of making out his case was on him. He endeavored to establish the fact of his employment by proving what had been said by the president of the board of managers, by one of the members of the board and by the superintendent of the workhouse, each separately and on different occasions. He utterly failed to show that any corporate action was had by the board, by virtue of which he was employed or by which the power to employ him was delegated to any member of the board or to the superintendent. The testimony on this point tended rather to negative the fact of any such action on the part of the board.

By the Act of March 23d 1872, the board of managers, composed of five citizens of the county, was made a public corporation by the name of “ The Allegheny County Workhouse .and Inebriate Asylum,” with full power and authority to establish, erect and manage the institution, to make contracts, sue and be sued, and generally to do whatever is necessary in conducting its operations and providing profitable employment for its inmates. The board of managers was thus invested with important corporate powers, some of which, in their exercise, require consideration, deliberation and judgment. Where such is the case, “all should be convened, because the advice and opinions of all may be useful, though they do not unite in opinion:” In re Turnpike Road, 5 Binn. 481; Commissioners of Allegheny v. Leckey, 6 S. & R. 166. It is not to be presumed that a matter so important as the sale of an entire year’s product of the barrel factory connected with the institution amounting to over two hundred thousand barrels, would not be acted on by the managers in their corporate capacity, or be delegated, in unmistakable terms, to some one else with authority to act for them. There was no competent and sufficient evidence of such action in this case resulting in the employment of the plaintiff below. It is true, he testified, in substance, that the president of the board said they wanted him to sell their barrels for the year 1878 ; that the superintendent said he was instructed by the board to see him and request him to get the best offer he could for their barrels, and communicate the result in writing to the board; and that another member of the board, since deceased, told him on another occasion “ that they had considered the matter, and if he could get $ 1.25 per barrel, to close the matter at once.” He was contradicted by each of the surviving parties to the two first-mentioned conversations; but assuming that these individual declarations and statements were made as testified to by him, what do they amount to without proof of authority to make them ? Such authority was denied, and there was no evidence that either of the parties referred to was empowered by the board to employ the plaintiffior make any sueh statements. Unless they are authorized, the individual members of a corporation cannot bind it by an express promise, nor can corporate engagements be implied from their unauthorized and unsanctioned acts or declarations. The acts or declarations of a director in a corporation will not bind or in any manner affect it unless they are shown to be within the scope of his ordinary powers or of some special agency: Angell and Ames on Corp., sect. 239; Soper v. The Buffalo & Rochester Railroad Co., 19 Barb. 310. As we had occasion to say in a recent case, corporate rights are not to be frittered away by loose and unauthorized declarations made by persons who at the time had no authority to bind the corporation; and this principle applies as well to individual directors and employees of a corporation as to strangers. Nor is there any hardship in this, because, as is said in Cooper v. Lampeter Township, 8 Watts 128, “every person is supposed to know the restrictions on the power'of the officers of a corporation of a public nature and the extent of their authority.”

It follows, from what has been said, that the learned judge of the Common Pleas should have affirmed the first and second points of the defendant below, which form the subjects of the second and third assignments, arid should have refused the second point of the plaintiff, which is covered by the seventh assignment. The first assignment of error is not sustained. The deceased manager, whose declarations were proved, was not a party to the alleged contract within the meaning of the Act of 1869. His relation to the corporation was rather in the nature of an agency, and if it had been shown that he was authorized by, the board of which he was a member to employ the plaintiff, his declarations, while acting within the scope of his authority, would have been competent evidence ; but as we have already said, there was nothing in the testimony from which the jury could fairly and reasonably find that either of the parties with whom the plaintiff testified he had conversations, was authorized by the board to employ him. It is true, a committee of three was appointed by the board on November 20th 1877, but there was no testimony as to any action having been taken by that committee in relation to employment of the plaintiff. The remaining assignments are- not sustained; but for reasons already given, the judgment should be reversed on the second, third and seventh specifications of error.

Judgment reversed.


author: Per Curiam.

text:
    Weir versus The County of Allegheny.
    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.
    October 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    ■ Error to the Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1880, No. Í96.
    Case by James G. Weir against the county of Allegheny, to recover damages for the destruction of property in riots.
    The facts are sufficiently stated in the following opinion of Ewing, P. J.:
    “ This is an action brought by the plaintiff against the county of Allegheny, to recover damages sustained by him from injury to and destruction of his property (houses, fixtures, tools, materials, &c.,) by a mob, in the railroad riots in Pittsburgh, July 22d 1877.
    “ The liability of the county arises wholly under the Act of Assembly, approved 31st of May 1841, Pamph. L. 416, and extended to Allegheny county by Act of March 20th 1849, Pamph. L., p. 184. The seventh section of this act, which alone is material to this question, is as follows :
    “ ‘ In all cases where any dwelling-house or other building or property, real or personal, has been or shall be destroyed within the county of Philadelphia (or Allegheny), in consequence of any mob or riot, it shall be lawful for the person or persons interested in and owning such property, to bring suit against the said county, where such property was situated and being, for the recovery of such damages as he or they sustained by reason of destruction thereof; and the amount which shall be recovered in said action shall be paid out of the county treasury on warrants drawn by the commissioners thereof, who are hereby required to draw the same as soon as said damages are finally fixed and ascertained.’
    “ On trial of the case counsel for the plaintiff asked the court to instruct the jury (3d point), that the measure of damages was, in addition to 'the value of the property injured or destroyed, ‘ interest upon said sums from the date of the riot to this date, at six per cent, per annum.’
    “ Counsel for the defendant asked the court to instruct the jury (3d point), ‘ That in a case like the present, being for unliquidated damages, and where no benefit accrued to the defendant by reason of the injury complained of, interest is not an incident to the right to recover, and should not be allowed by the jury.’
    “ The court refused both these points, pro forma, reserving the questions, and instructed the jury, that if, in their discretion, and in view of all the circumstances, they thought it proper they might allow interest as an element of the damages, or they might disallow it. This instruction was made known to counsel before they addressed the jury, and on each side they discussed the question to the jury as one resting in their discretion.
    “By consent of counsel, the jury were directed to return a special verdict, by which it should appear whether or not they had allowed anything in the way of interest, and if anywhere allowed, how much.
    “ The jury returned a verdict in favor of the plaintiff for $6250, the ascertained damage at the date of the riot, and refused to allow any interest, the verdict being subject to the opinion of the court upon the question of interest as presented in the points above quoted.
    “ If the plaintiff’s point be a correct statement of the law, then interest from July 22d 1877, is to be added to the verdict. If the instruction to the jury, that the question of interest was in their discretion, or if the third point of defendant be a correct statement of the law, the verdict must stand without modification. In the recent edition (1880) of Sedgwick on the Measure of Damages, vol. 2, p. 158, in relation to cases where interest can be recovered, it is said: ‘ The subject is susceptible of a very clearly defined division, 1st. Where it can be claimed as a right, either because there is an express contract to pay it, or because it is recoverable as damages, which the party is legally bound to pay, or for money or property improperly withheld. 2d. Where it is imposed to punish negligent, tortious or fraudulent conduct. In the first case, it is recoverable as a matter of law. In the second case, it rests entirely in the pleasure of the jury. To the same effect is Lincoln v. Claflin, 7 Wall. 138. There is, however, a third class of cases not included in either of the above, where interest is not allowable, either as matter of law or in the pleasure of the jury. In the English courts interest is disallowed in many cases where it would be allowed in this country. The American cases differ widely, some following closely the rulings in England, while others adopt a more liberal rule on the allowance of interest. In the cases oi Hermits of St. Augustine v. The County of Philadelphia, and St. Michael’s Church v. Same, Bright. Rep. 116,121, arising on the same statute as does our case, Judge Rogers, at nisi prius, instructed the jury that they might, in their discretion, allow interest. In the charge there is no reference to the terms of the Act of Assembly on this point, nor to the decisions governing the question. It seems to have been assumed that, because the county was made liable, it was to be held liable, in all respects, as the wrongdoer, except that punitive damages could not be allowed. The question does not appear to have ever been raised in the Supreme Court, nor so far as we have been able to ascertain has the question before been raised and discussed in any court of the state, although similar cases have been decided in other states. In Mowry v. Whitney, 14 Wallace 434, the United States Supreme Court decides that interest is not allowable on the profits as damages, for the infringement of a patent right, and they say further, ‘ interest is not gen- , erally allowable on unliquidated damages.’
    “In Passenger Railway Company v. Philadelphia, 1 P. F. Smith 468, it is held that interest should not be allowed on overdue taxes, where the non-payment arose from the mutual mistake of plaintiff’s agents and defendant. To the same general effect is 44 Cal. 239 ; 72 Ill. 148 ; 63 Mo. 98. In general, it appears to be the rule of the courts that have gone farthest in the allowance of interest, that where the 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 a part of the damages, either as a matter of law or at the pleasure of the jury. Aside from the Philadelphia cases above cited, we find no cases which, in their decision, or in the principles laid down therein, will sustain the ruling of the court in this case,, submitting the question of interest to the jury, and no case whatever that even indirectly sustains the plaintiff’s prayer for instruction that the jury must allow interest. In the recent cases decided against Allegheny county, in which the more important questions of the liability of the county were decided, we are informed that counsel agreed on the amount of the verdicts, and that no question was raised as to interest either in the court below or in the Supreme Court. In Sergeant v. The Inhabitants of Hampden, 38 Me. 581, our precise question appears to have been raised and decided.
    “ The Act of Assembly provided for ‘ the recovery for injuries Buffered to the person or property, through defects of the highway, to the amount of the damages sustained thereby. The action was to recover damages for such injuries. The court below instructed the jury that they might»add interest as part of the damages. The Supreme Court held this to be error, and reversed therefor, on the ground that the liability arose on the statute which did-not provide for .interest, and that it was not allowable, and distinguishing it from such actions as trover and conversion. Examining the provisions of our Act of Assembly we find that no interest is provided for in the act. The liability does not arise from the act of the county. No liability is imposed on the county authorities to pay until the plaintiff has brought suit and proceeded to verdict and final judgment; then for the first time it becomes the duty of the county to pay. There has been no wrongful or unlawful detention of the property or money of the plaintiff by the county or any of its agents. All the conditions, and each of them which render a defendant liable for interest, are wanting in this case. The court is unanimously of the opinion that the third point, submitted by the defendant’s counsel, correctly states the law of interest as applicable to this case. As the jury in making up their verdict excluded interest, the verdict requires no modification.

      “ Upon payment of the verdict fee let judgment be entered upon the verdict in favor of the plaintiff.”
    The third point of the defendant alluded to in the charge was as follows: “ That in a case like the present, being for unliquidated damages, and where no benefit accrued to the defendant by reason of the injury complained of, interest is not an incident of the right to recover, and should not be allowed by the jury.”
    The plaintiff took this writ and alleged that the court erred, inter alia, in refusing to allow him interest.

      Barton & Sons and Josiah Cohen, for plaintiff in error.
    If compensation is the rule, then the value of the property, with interest from the time of loss, is the well-known and universal rule of damages. We assert that an examination of the authorities will show that from the first reported case under the Act, that of the Hermits of St. Augustine v. Philadelphia County, Bright. 116, 4 Clark 120, down to the case decided last year, Gibson v. Allegheny County, Norris 397, &c., that the value of the property destroyed, with interest from the date of destruction, was the rule of damages adopted. But it is said that the question of interest was not raised in the Gibson case; that there was no assignment of error to the charge of the court below on that question. Judge Hice in that case followed the rule adopted in all previous reported cases, and his ruling was affirmed. And the fact that no objection was made to his ruling is a strong argument that he was right.

      S. H. Geyer and George Shiras, Jr., for defendant in error.
    The plaintiff claimed that interest from the date of the riot was a necessary and legal incident to his right to recover. The defendant claimed that as the right of action was given by a statute penal íd its nature, and as the statute did not give interest but in terms created the duty to pay on the part of the defendant, only after the amount of the loss had been fixed by a trial, the jury were not authorized to allow interest. Points expressive of these respective views were presented. The court formally refused all these points, instructed the jury to find a special verdict indicating the amount of the loss at the time of the destruction of the property, and to allow interest or not, as they thought fit; and reserved the questions raised by the respective points. The jury, by their verdict, found the amount of the loss at the time of the riot, and as a matter of discretion, refused to allow interest.
    October 25th 1880,
    So far as the Supreme Court is‘concerned, this is a case of the first impression. In the case of Gibson v. The County of Allegheny, the amount of the verdict was agreed upon by counsel, and no question concerning interest was decided by the court or submitted to the jury. In the two Philadelphia cases under the same statute, Judge Rogers instructed the jury that interest was a matter within their discretion. The correctness of this ruling was not considered or passed upon by the Supreme Court. There is very respectable authority for the proposition that, in cases bearing some resemblance to the present one, it is discretionary with the jury to allow or to refuse interest: Lincoln v. Claflin, 7 Wall. 139 ; Mowry v. Whitney, 14 Id. 693; Sergeant v. The Town of Hampden, 38 Maine 581.
   The judgment of the Supreme Court was entered

Per Curiam.

The demand of the plaintiff was for damages resulting from the riot of 1877, and was given to him by a special statute. It was to recover for property actually destroyed- and not for any consequential injuries such as the suspension of business. We adopt the opinion of the learned president of the court below upon the questions of law reserved on the special verdict.

Judgment affirmed.