text:
    Mullan versus Philadelphia and Southern Mail Steamship Company.
    1. It is the duty of every employer to exercise reasonable care in providing his laborers with safe machinery, suitable tools and appliances, adapted to the uses for which they are designed.
    2. Where a master places the entire charge of his business, or a distinct branch, of it, in the hands of an agent, exercising no discretion and no oversight, the neglect by the agent of ordinary care in supplying and maintaining suitable instrumentalities, is a breach of duty for which the master is liable.
    3. The risk which a laborer assumes of injury from the neglect of his fellow, is when they are co-operating in the same business, so that he knows that the employment is one of the incidents of their common service.
    4. The plaintiff was engaged as a laborer, under a stevedore employed by the ship-owner, in unloading a vessel; the rope by which the load was raised was one that had been spliced by the mate before the arrival of the vessel at port, and was used as a “ single fall,” which was more liable to part than a “ double fall.” Whilst raising a cask, the rope parted at the splice, the cask fell and injured the plaintiff. Whether the stevedore was a fellow-workman of the plaintiff, and whether the negligence of the mate in splicing the rope was a risk assumed by the plaintiff, were, under the circumstances, for the j^y-
    5. It was proper for plaintiff to ask of a witness if, at or immediately after the accident, he heard the stevedore say anything concerning the rope or its insufficiency.
    6. Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, followed.
    January 12th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1873, No. 173.
    This was an aotion on the ease, brought April 28th 1871, by Samuel -Mullan against the Philadelphia and Southern Mail Steamship Company.

      The plaintiff was one of a gang of men employed by a stevedore engaged by the defendants, to unload one of their vessels lying at a wharf in Philadelphia, on the river Delaware. Whilst raising two tierces of rice by a rope, the rope which had been spliced, parted at the splice. One of the tierces fell into the hold of the vessel where the plaintiff was at work, rolled upon his arm, and so injured it that it had to be amputated. The plaintiff, alleging that it was through the negligence of the defendants’ servants that he was injured, brought this action.
    The case was tried November 2d 1872, before Mitchell, J.
    The plaintiff having given- evidence of the facts above stated, called J. McLaughlin, who testified that one Corcoran was the chief stevedore ; he employed and discharged the men, but they were paid by the agent of the company; the men received their orders from Corcoran alone; he had the exclusive control and direction of them ; there was no interference with him by any one. On the day of the accident, the vessel was being unloaded “ by a single fall — a single fall is where a pulley is attached to a gang-rope, and a ropé passes over the pulley to one end of which is the load to be raised, and the other end is attached to the donkey-engine.” The rope was of the best kind; it had been spliced with a long splice, by which the rope where it is spliced is no thicker than it was originally. The rope had been used all day. The accident occurred about seven o’clock in the evening. The load was being taken from the bottom of the hold; it was rolled to the forward hatch, where it was hooked to the fall, raised to the deck and rolled out to the wharf. A weight on a single fall is apt to untwist the rope; the rope that parted was not sufficient, as a single fall, to unload two tierces of rice; it should have been used as a double fall, but there was not enough of this rope to weave a double fall. After the accident, a double fall was made from another rope. Two tierces at a time were taken by Corcoran’s orders. It was his business to judge how much should be put on the fall.
    Henry Gerber, who was in charge of the engine and hoisting-apparatus, testified: * * *
    “ A single fall will unload a vessel twice as rapidly as a double cargo fall, but it takes nearly twice as much engine power. In a single fall it takes as much pow'er of the engine to haul the load as the load weighs, and a little more to overcome the friction. A short splice in a rope is double the size of the rope unspliced. * * * It is the twist, or, as we call it, the lag of the rope that keeps the woven strands of either splice in their place. A long splice is as good as a short splice so far as the breaking strength of the rope is concerned; where a long splice runs over a pulley the pieces where the ends -are tucked in will chafe against the pulley’s side — that is its only objection. * * * When a spliced rope is so used that a heavy weight is on one end, the rope will untwist, and the more it does that the more likely is the splice to come apart. When a single cargo fall is used, the weight at one end has a tendency to make the rope untwist; that is, if the weight is allowed to swing round, as it will naturally do. But where a double fall is used, both ends of the .rope are made fast, and there can be no untwisting of the lag of the rope.” * * *
    Hugh Kennedy testified as to the accident and its circumstances, and as to Corcoran’s control, &c., and, on cross-examination, said further: “ After the accident, we rove another fall, a' double fall, within ten or fifteen minutes. I have followed the sea in merchant vessels. The running rigging is in the mate’s charge. At this port, I believe vessels are discharged by stevedores who have charge of the tackle for this. The mate attends to receiving the rigging, and the stevedore judges of its fitness and uses it or not as he sees proper.”
    The plaintiff testified: “ I was employed as a stevedore by Corcoran, and was then working under him. Nobody had power but Corcoran to give directions to me. He was my boss. He had the power to dismiss me. . He had entire control of the men, and we recognised no one else. When the rope parted, I was in the hold of the vessel rolling tierces into the hatch and chocking them up. We were working pretty sharp, and I was in the act of rolling up a barrel into the hatch, and of putting a cho.ck under it, in order to have it in place when the clamps should come down, when the two tierces being hauled up fell, and one of them struck the barrel I was rolling up, and from that bounced and rolled on to my hand and arm. * * * Corcoran did no work himself. He superintended the men under him, and gave them their orders. No one else gave orders. * * * Corcoran had charge of .the
    machinery and tackle of unloading and loading. I have seen machinery and tackle changed by his direction. While a vessel was discharging, he had constantly the charge of it. I never knew any one else to have charge.”
    The plaintiff was asked: “Did you hear any expression from Corcoran at the time of the accident, or immediately after it, concerning this rope or concerning its insufficiency ?”
    This was objected to by defendants. The objection was sustained and a bill of exceptions sealed.
    The plaintiff having closed, the defendants moved for a nonsuit, on the ground that Mullan and Corcoran were fellow-workmen; and, admitting the accident to have been caused by the latter’s neglect, the defendants could not be made legally responsible.
    The court ordered a judgment of nonsuit.
    The plaintiff moved the court in banc for a rule to take off the nonsuit, which was refused, Mitchell, J., delivering the opinion of the court, viz :—

      “In this case the facts were that the plaintiff on the 26th October 1870, while employed by the defendants as a stevedore, and working in the hold of the steamship Wyoming, owned by the defendants, was injured by the fall of two tierces of rice, which were being hoisted from the hold to between decks, whence they were to have been discharged over the ship’s side. The immediate cause of the accident was the parting of the rope used for hoisting. This rope had been spliced by the mate, who had charge of the ship’s'running rigging, while coming up the river. The splice drew out without breaking, and the casks fell upon the plaintiff. At the time of the accident the chief stevedore employed by the defendants had charge of the unloading of the vessel. The question is, whether the defendants are responsible for the injury received by the plaintiff. '* * *
    “ It was insisted that the defendants were responsible upon two grounds: first, because they were bound to furnish proper and safe tools and appliances for the use of persons engaged in their service; and secondly, because the employment of the plaintiff being in a subordinate capacity to that of the head stevedore, the plaintiff was not within the operation of the principle that the servant assumes the risk of the negligence of his fellow servant. In other words, that the plaintiff was not a fellow servant of the head stevedore, but subject to his control and amenable to his orders.
    “ If a master negligently provides unsafe machinery, tools or implements for his servant to work with, he is answerable for the consequences.

      “ But this rule, like every other, has its just limits and qualifications, without which the rule itself would be an intolerable burden. If the master provides proper and safe machinery and tools, and employs a competent and prudent person to take charge of them, whose duty it is from time to time to inspect them, put them in order and renew their defective parts, he cannot he justly answerable for an accident to a fellow servant, arising from the negligence of such person. Without this reasonable exception to the rule of responsibility, it would be too severe for the business relations of life and most oppressive in its operation. It would in many cases abrogate entirely the general rule that the master is not responsible to his servant for the negligence of his fellow servant. It would make the employer an insurer against accidents, which no foresight or prudence of his could possibly foresee or prevent: Ryan v. Cumberland Valley Railroad Co., 11 Harris 354. * * * The particular negligence alleged in that case, was in omitting to hook safely the cars of a railroad train, a species of negligence which it is difficult to distinguish in principle from that which caused the accident in the present case.
    “ The employer is bound to furnish proper and safe machinery, but where he is obliged from the nature of the business to employ agents to run it, and to take care of it, and tb keep it in proper repair, he is not responsible, unless he commits the charge to an incompetent or untrustworthy person. Upon the contrary principle, every employer must be held to warrant every bolt or pin, or screw, or piece of mechanism used, although he himself knows nothing of the machine, or does not understand its structure, or is incapable of appreciating the conditions of danger. He must be held to warrant not only that everything is good and sufficient when he supplies it, but that it shall continue so. And this not to a stranger, but to a person who is daily conversant with the risks of the business, and who, upon entering upon it, must of necessity know that his safety depends as much upon the capacity and watchfulness of his fellow workmen as upon his own. * * *

      “ If the unfortunate accident which was the cause of the present action was caused by negligence, it is plain that the negligence was either the remote negligence of the mate in making an imperfect splice, or the proximate negligence of the head stevedore in not examining the rope with sufficient care before he commenced the unloading of the vessel. But how could the owners know anything of that, unless they were informed of it ? Is a ship-owner bound to examine personally every day, every rope in his ship, at the peril if he does not, of heavy damages to the persons in his employ resulting from the negligence of other persons in his employ, who are necessarily intrusted with such things'!1 We must go to this extent if we are to hold the defendants responsible in the present case.
    “ Nor was there anything in the position of the plaintiff which relieves him from the operation of the general rule. He was a fellow servant in the same general employment. * * * That Corcoran, the head stevedore, was above the plaintiff, who worked subject to his orders and under his directions, makes no difference. The rule is not altered by the fact that the servant to whom the negligence is imputed was a servant of superior authority, whose directions the plaintiff was bound to obey. * * * There are cases in which persons have been so completely substituted in all respects to the place of the master, exercising in his stead a general and complete authority and control over the whole business, that they are regarded to all intents and'purposes as principals and not fellow servants — masters substituted in the room of other masters. But the present case cannot be likened to them in any respect.”
    The plaintiff took a writ of error; he assigned for error:—
    1. Rejecting his offer of evidence.
    2, 3. Ordering judgment of nonsuit, and refusing to take it off.

      S. Sanson and D. Dougherty, for plaintiff in error.
    The principle that the doctrine respondeat superior does not apply when the injury arises from the negligence of a fellow workman, is subject to the exception where a fellow workman is by the common master put in his place: Ashworth v. Stanwix, 3 El. & El. 701; Clarke v. Holmes, 7 Hurlst. & N. 937; Grizzle v. Frost, 3 Foster & Finl. 622; Hall v. Johnson, 3 Hurlst. & C. 589. A master who employs a servant in dangerous work is bound to take all reasonable precautions for his safety : Patterson v. Wallace, 1 Macqueen (H. L.) 748 ; Barton’s Hill Coal Co. v. Reid, 8 Id. 266 ; Weger v. Penna. Railroad, 5 P. F. Smith 460; O’Donnell v. Allegheny Valley Railroad, 9 Id. 239 ; Ardesco Oil Co. v. Gilson, 13 Id. 146. A corporation can act only through an officer, and his negligence is theirs: Frazier v. Pennsylvania Railroad Co., 2 Wright 104.

      M. P. Henry, for defendants in error.
    The master is not liable to one in his employ for an injury by his negligence to his fellow servant unless he so withdraws from the conduct of the business as to put the fellow servant in his place; and if he furnishes safe machinery, &c., and competent superintendents, the master has done his duty: Ardesco Oil Co. v. Gilson, 13 P. F. Smith 146; Caldwell v. Brown, 3 Id. 453; Ryan v. Cumberland Valley Railroad, 11 Harris 384; Weger v. Penna. Railroad, 5 P. F. Smith 460. A foreman is notin the position of a deputy master: Searle v. Lindsay, 11 C. B. N. S. 429; Gallagher v. Piper, 16 Id. 671; Albro v. Agawam Can. Co., 6 Cush. 75 ; Wright v. N. Y. Central Railroad, 11 Sm. App. 562. The company do not warrant that good material shall be properly used, or that the servants shall keep it in its original safe condition: Hard v. V. & C. Railroad, 32 Vt. 473; Leaver v. Railroad, 14 Gray 466.
   Mr. Justice Woodward

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

The accident resulting in the injury of which the plaintiff complains, occurred while he was employed as one of a gang of stevedores in unloading the steamship Wyoming, belonging to the defendants. In hoisting two tierces of rice out of the hold of the vessel, the 'rope the workmen were using parted, and the casks fell on the plaintiff. The hands employed were under the charge of John Corcoran, the chief stevedore. He engaged and discharged them at his pleasure. He had charge also of the machinery used in unloading the ship. The rope, where it parted, had been spliced; it was used, as the witnesses explained, as a single fall; the weight at the end caused it to swing round and untwist, and the parting at the splice was the result. On the ground that the injury was the consequence of the negligence of Corcoran, and that he was a fellow workman of the plaintiff, the court below directed a nonsuit.

There was evidence which would ordinarily be referred to a jury that the rope was unfit for the purpose for which it was used. While it was not asserted that its strength was weakened by-splicing, the witnesses united in saying that it should have been used as a double fall, and that there was not enough of it for that purpose. One of them said, that “ whei’e a long splice runs over a pulley, the pieces where the end are tucked in will chafe against tbe pulley’s sides and that “ when a spliced rope is so used that a heavy weight is at one end, the rope will untwist, and the more it does that the more likely is the splice to come apart. When a single cargo fall is used, the weight at one end has a tendency to make the rope untwist, that is, if the weight is allowed to swing round, as it will naturally do. But where a double fall is used, both ends are made fast, and there can be no untwisting of the lag of the rope.” Another witness, after stating the liability of the lumps in a long splice to chafe in going through a pulley, said: “ In unloading the rice, I think a single fall with a splice ought not to have been used.”

In order to warrant the nonsuit, it was requisite that it should appear affirmatively, not only that the accident was caused by neglect of duty on the part of Corcoran, but that he and the plaintiff held the relation to each other of servants in the common employment of the defendants. Admittedly, it is the duty of every employer of laborers to exercise reasonable care in providing them with safe machinery, suitable tools and appliances adapted to the uses for which they are designed. Did the defendants discharge their duty ? On their part, it is insisted that they did. It is said that they intrusted Corcoran with the power to select all the machinery necessary for the work he was employed to superintend. The testimony on this subject that is found in the bill of exceptions consists first, of the statement of Kennedy on cross-examination, that “ the running rigging is in the mate’s charge; the mate attends to receiving the rigging, and the stevedore judges of its fitness, and uses it or not as he sees properand secondly, of the plaintiff’s own statement, that “ Corcoran had charge of the machinery and tackle of unloading and loading; I have seen machinery and tackle changed by his direction.” In the opinion of the court below, it is said that “ this rope had been spliced by the mate who had charge of the ship’s running rigging, while coming up the river.” It is assumed that the fact is so, and is contained in a portion of the testimony that has been overlooked.

It is conceived that the questions in this case were not such as 'could legitimately be passed upon finally by the court. Assuming, in the first instance, that Corcoran had entire control of the selection of the machinery, and that, consequently, the defect was one for which he was chargeable, it is difficult to see why the plaintiff should not have been permitted to ask the jury to find that the defendants had conferred on him such unlimited authority as to make him their representative, and to make themselves responsible for his default. “ Where the employer leaves every thing in the hands of a middle-man, reserving to himself no discretion, then the middle-man’s negligence is the master’s negligence, for which the latter is liable:” Wharton’s Law of Negligence, § 229 ; Grizzle v. Frost, 3 Foster & Finlayson 622. The principle that the master is exempt from responsibility to the servant for injuries received from the ordinary dangers of his employment, including the negligence of his fellow servants, is too deeply imbedded in our law to be disturbed. But where a master places the entire charge of his business, or a distinct branch of it, in the hands of an agent, exercising no discretion and no oversight of his own, it is manifest that the neglect by the agent of ordinary care in supplying and maintaining suitable instrumentalities for the work required, is a breach of duty for which the master should be held answerable. The negligence of the agent, with such powers, becomes the negligence of the master. In this case there was some evidence that the entire duty of providing the appliances for loading and unloading the vessels of the defendants, had been intrusted to the discretion of Corcoran. And just to the extent to which the proof went in fixing upon him the responsibility for the selection of the rigging and for adjusting and working it, did the same proof tend to establish the fact contended for by the plaintiff, that Corcoran was clothed, as to these duties, with the ultimate power and authority of the defendants. Upon the evidence submitted, it was the right of the plaintiff that a jury should pass.

If, in the next place, it should be found that the position of Corcoran, notwithstanding that he had charge of the gang of stevedores, was that merely of a fellow workman of the plaintiff; that the rope had been spliced by the mate on the voyage from Savannah ; and that Corcoran received it without knowledge of the defect that caused the accident, the question would be presented whether the plaintiff would still be affected by the rule exempting the master from liability. The risk of injury which a laborer assumes is that involved in the “ circle ” of his employment. “ He and the fellow servant causing the injury must be co-operating in the same business, so that the former knows that the employment of the latter is one of the incidents of their common service:” Wharton’s Law of Negligence, sect. 230. And the question that would be presented would manifestly be one of fact. A jury would be required to find whether the negligence of the' mate was one of the risks which the plaintiff should be held to have assumed. The result would depend on what should be ascertained to be their relations to each other, the extent to which they were brought into contact, and to which they were engaged in a common employment, and the connexion of the duties 'of each with the duties of the other.

It is not designed in any way to impair or affect the rule settled in the cases on which the court below relied. If it shall appear, in the event, that it was the duty of Corcoran to select the proper materials for the work that was to be done, that he held only the position of a fellow workman of the plaintiff, and that it was an act. of negligence on his part to receive the rope from the mate and use it, the facts, of course, would bar all right of recovery in this action. The cases which were the guide in the decision below, under the circumstances disclosed in them, were justly ruled, undoubtedly; but they do not reach the questions presented here. The error consisted, not in adhering to the authorities, but in withdrawing from the jury the right to ascertain the cause of the accident, the relation in which Corcoran stood to the parties, and, if the accident was caused by the neglect of the mate, the responsibilities to which the plaintiff was subject as an incident of his employment in common with the mate, in the service of the defendants.

The offer to ask the plaintiff whether he heard any expression by Corcoran at the time of the accident, or immediately after it, concerning the rope, or concerning its insufficiency, ought, on the authority of The Hanover Railroad Company v. Coyle, 5 P. F. Smith 396, to have been received as part of the res gestee.

Judgment reversed, and procedendo awarded.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    City of Philadelphia’s Appeal.
    1. The Act of April 28th 1870, fixing the line of Chestnut, street, provided that it should “ not interfere with any buildings now erected on the south side of that streetthe front of a building was taken down and a new front erected on the line prescribed by the act; ornamental columns, pilasters, &c., to the front were extended fifteen inches beyond the line. Held, that these were not prohibited by the act.
    2. According to the ordinary course of equity practice, when a case is heard on bill and answer, the allegations of fact in the answer are admitted.
    3. In a bill for injunction, if the question is doubtful, it is decisive against the injunction; chancery will not decree an injunction except in a clear case of the invasion of a public or private right.
    4. No usage, however long continued, will justify an encroachment upon a highway ; but such encroachment, to be remedied by injunction, must be really an obstruction to the free use of the highway.
    January 13th 1875.
    Before Agnew, C. J., Sharsavood, Wieliams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Philadelphia: Of January Term 1873, No. 56|.
    This was a bill filed January 23d 1872, by the City of Philadelphia., against the Presbyterian Board of Publication.

      The bill, in substance, set out that the defendants were erecting a building on the south side of Chestnut street, below Broad street, in Philadelphia; had extended the foundation of the building fifteen inches beyond the line of the street, as fixed by the Act of April 8th 1870, and had constructed on the foundation a pediment, and were proceeding to erect piers and columns on it, which would encroach on the sidewalk fifteen inches. The prayer was that the defendants might be restrained from continuing the erection beyond the south line of Chestnut street, as fixed by the act.
    A preliminary injunction was granted. Affidavits were filed, and after hearing the injunction, was dissolved; Paxson, J., delivering the following opinion:
    “ This was a motion to continue a special injunction. The bill charges that the defendants are now erecting a large granite building on the south side of Chestnut street, below Broad, and that the foundation-wall of said edifice has been extended fifteen inches beyond the line of said street, as the said line was regulated by Act of Assembly, approved the 28th day of April, a. d. 1870, and that the said defendants have constructed a pediment upon said foundation-wall so extended, and are about to erect piers and columns thereon, so that the line of said edifice, when completed, will encroach upon the sidewalk, and will extend fifteen inches to the northward of the line of said street, as regulated by the Act of Assembly aforesaid. The defendants have submitted the affidavits of John McArthur, Jr., architect of said building, and several others, from which it appears that the ashlar or true wall of said building conforms strictly to the line of said street, and that the only portions of said building which encroaches thereon, are the ornamental parts and architectural details of the front, such as columns, pilasters, window headings, door jambs and cornices, which project over said line from six to fifteen inches.
    “ D. Hudson Shedaker, surveyor for the district, in his affidavit says, he furnished defendants with the line of the street, and that the ashlar or true wall line of the front is being built on the line as furnished by him. That there are several ornamental portions— the front columns with thin bars — which project from the ashlar line on Chestnut street, a little over a foot. Eor the purpose of this motion, we must consider it as established that the ashlar or true wall.of the front of said building is upon the line of the street, as regulated by Act of Assembly, and given to the defendants by the surveyor -of the district, and that it is only the ornamental portions of the front which project over said line from six to fifteen inches. The.question for our determination is, whether such projections constitute such a nuisance as requires the court to interfere by injunction. Of our jurisdiction we entertain no doubt. In the cause of The City against Friday and Crump, 6 Philada. R. 275, we held that ‘any...encroachment on the streets of the city of Philadelphia is a nuisance, which will be enjoined at the suit of the city.’
    “ Referring again to the affidavits submitted on the part of defendants, it is stated by the district surveyor that for many years it has been the universal custom and practice of builders to come out over the line with ornamental works, such as columns, porticoes, pilasters, cornices, balconies, window-dressings, door-jambs, throughout the city; this has especially been the case with our public and prominent buildings, and that, before the institution of this suit, no action has ever been taken against any person coming out or attempting to come out over the absolute fixed lines of a street with the ornamental work of his buildings, or architectural additions. John McArthur, Jr., the architect referred to, says: £I have been an architect in this city for upwards of thirty years, and during all that time I have been in the practice, in accordance with the universal usage and custom in this city, of putting in my designs, steps, porches, pilasters, balconies, cornices, pillars, and other ornamental features, projecting more or less from the street-line upon which I placed the ashlar or true wall-line of the building, and of having the building erected in accordance with such designs; and the present is the first instance in wffiich I have known or heard of objection being made, and such, I have no hesitation in saying, has been the general custom and practice with architects and builders.’
    ££ The affidavits on the part of the defendant specify a number of buildings, the ornamental portions of which project over the line of the streets from six inches to four feet. * * *
    ££ The Act of 28th of April 1870, Pamph. L. 1291, referred to, provides, ‘ that the south line of Chestnut street, between the rivers Delaware and Schuylkill, shall he at the distance of five hundred and thirty-nine feet southward of the south side of Market street: Provided, That this act shall not interfere with any buildings now erected on the south side of Chestnut street.’
    “ This act is awkwardly worded, but the manifest effect of it is to widen Chestnut street, by taking off five feet from the property on the south side thereof, with a saving clause as to buildings now in existence. As the edifice now in process of construction by the defendants is not strictly a new building, but the alteration of an old one, with an additional or new building in the rear, and a new front on Chestnut street, it may be questioned whether it does not come within the saving clause of the Act of Assembly above cited. The said building, before the alterations were commenced, stood upon the old line of Chestnut street, and the defendants have, in making said alterations, fallen back to the new line as to everything but the ornamental portions.
    ££ But there are other considerations which weigh with us in the determination of this case. In order to have an intelligent understanding of it, we must glance at the legislation upon the subject. The forty-fifth section of the Act of the 18th of February 1769, 1 Smith’s Laws 301, provides that ‘whereas, by late extraordinary encroachments of the cellar-doors, steps and windows, bulks, and other encroachments of the said streets and other encumbrances, the said streets are greatly obstructed, and by a number of spouts or gutters set at the eaves of pent-houses and other places in the said streets, large collections of water are discharged in rainy seasons on persons passing near the same : Be it, therefore, further enacted, that if any person or persons shall hereafter make and set up, or shall cause to be made and set up in any street of fifty feet wide or upward, within the said city, any porch, cellar-door or step, which shall extend beyond the distance of four feet three inches into such street, or a proportionate distance into any narrower street, when the same shall be made or set up; and if any person shall hereafter make and set up, or cause to be made and set up, any bulk, jut-window or encumbrance whatsoever, whereby the passage of any street shall be obstructed, or shall so place, or cause to be placed, any spout or gutter, whereby the passage of any street shall be obstructed, or shall be so placed, or caused to be placed, any spout or gutter, whereby the passage of any street shall be incommoded, every person offending,’ etc.
    “ The forty-eighth section of the same act provides: ‘ That nothing contained herein shall be deemed, taken or construed to prevent any person or persons, to set up or place any such sign, siguboard, pole or other device or thing aforesaid, against the wall of their several dwellings, so that the same shall not project or extend into the said streets, lanes or alleys, more than six inches.’
    “This was the first legislation on the subject, and was induced, as the preamble to the section first quoted clearly shows, by extraordinary encroachments of various kinds upon the streets of the city, at the same time clearly recognising some encroachment upon the line of the street for certain purposes, and defining the extent to which such encroachments might thereafter go.
    “This was followed by the Act of the 16th of April 1828 (Pamph. L. 626), which repealed the forty-seventh section of the Act of 18th of February 1769, above cited, as to signs, and conferring on the Select and Common Councils of the city of Philadelphia, the power to regulate by ordinance, from time to time, and ‘to establish such and so many rules and regulations as to them may seem expedient for the better regulation of porches, porticoes, benches, doorsteps, railings, bulks or jut-windows, areas, cellar-doors and cellar-windows, signs, sign-posts, boards, poles, frames, awnings, awning-posts, or other device or projection over, under, into or otherwise occupying the sidewalk, or other portion of any of the streets, lanes and alleys,’ &c.
    “ The fourth section repeals so much of the said Act of 1769 as is supplied. Then follows ordinance of councils of September 23d 1864 (Dig. Ord. 192), defining what shall be nuisances, the tenth, eleventh and twelfth sections of which referred to projections. By the said section it is declared to be a nuisance : First. To extend or project from any dwelling or building, except inns, any signboards, pole or other device, to denote or show the place of business, or the merchandise or things which the occupant thereof has to dispose of, into or over any of the footways of any street of (his city, below the top of the first story, to a greater extent than four feet three inches on any of the other parts of each building. Second. To place or maintain any cellar-door, porch or steps, which shall extend more than four feet six inches into any footway of any street of fifty feet wide or upward, of a proportionate distance, into any footway in any street of less width than fifty feet. Third. To set up or maintain any fence beyond the building line ; or any railing, except around excavated areas now existing, so as to reduce the footways of streets, &c., * * * or to project any bulk window more than one foot into the footway beyond the building line; or to put up after sunset and before sunrise, any awning below the level of the light in any public lamp.
    “ This is all the legislation upon this subject. The legislature having in terms conferred upon councils the power to regulate the whole matter of projections, that body, as we have seen, proceeds to act upon it, and has declared certain things public nuisances; but councils have not anywhere said that these ornamental projections added to the ashlar line of a building, are nuisances. This is, perhaps, of some importance when we bear in mind that at the time when the ordinance of 1864 was passed, and for years before, it was the custom of builders to project such ornamental work over the line of the street. This was done, too, without a word of objection on the part of the building inspectors, city surveyors, councils, or other city officials.
    “ While such a course of action on the part of builders does not make such a custom as would prevent councils from prohibiting it, nevertheless, the-silence of councils in regard to it when the practice was well known, and the acquiescence in it by the city authorities for so long a time, would seem to furnish a solid reason why this court should not interfere by special injunction in a case where the building has already been c®mmenced.
    “ The whole subject properly belongs to the city councils. It is competent for them so tó legislate as to cover the whole ground, and leave the public in no doubt as to what the rights and duties of builders are in the premises. So far as they have acted, the necessity of some projection is recognised. Steps and porticoes are allowed to project four feet six inches.
    “ If the strict rule contended for here were adopted, it would result in the shaving off of every door, window-head and cornice, projecting over the line of the street. For, if they do not interfere with the foot passenger, they may perhaps limit the light and air.” * * *
    The defendants then filed an answer, which set out that the erection, &c., complained of, was the alteration of buildings Nos. 1334 and 1336 in Chestnut street belonging to the defendants; that the alterations were the erection of a granite front; the east and west walls of the building were not taken down, except so far as to throw the front of the building back to the line of the street as fixed by the act; that the true wall of the new front of the building stands on the line fixed by the act; that the ornamental parts of the front at certain-points project beyond this line ; these ornamental parts were six columns, designed to support other ornaments and decorations of the front of the building, and were not necessary to the support and stability of the true front wall of the building, but were purely ornamental and decorative, and would extend from six to fifteen inches beyond the line of the building.
    The foregoing abstracts from the pleadings, in connection with the opinion of Judge Paxson, will sufficiently exhibit the case.
    The cause was heard on bill and answer, and by consent of counsel, the bill was dismissed pro formá without prejudice..
    The plaintiff appealed to the Supreme Court and assigned1 for error the decree dismissing the bill.

      O. H. T. Qollis (City Solicitor), for plaintiff.

      S. 0. Perkins (with whom was Gr. Junkin), for appellees.
   Mr. Justice Sharswood

delivered the opinion of the court, January 21st 1875.

The affirmance of the decree of the court below might be rested upon the opinion of our brother Paxson, on the motion heard before him to dissolve the injunction. But that our judgment may not be misinterpreted and extended beyond -what is meant to be decided, it may be necessary to add what are the special grounds of this determination.

The cause was set down to be heard on bill and answer. According to the ordinary course of equity practice, that is an admission of the truth of the allegations of fact contained in the answer. It is distinctly alleged by the defendants that the acts complained of in the bill were mere alterations of an old building, and as it is provided by the act entitled “ An Act defining the line of Chestnut street in the City of Philadelphia,” approved April 28th 1870, Pamph. L. 1291, by which in effect Chestnut street was widened five feet on the south side, that the act shall not interfere with any buildings now erected on the south side of Chestnut street,” it is contended that the defendants are saved from the consequences. The learned judge below considers that as a doubtful question. Certainly had the defendants simply renovated their old front on the old foundation it would not be easy to see why they might not have done so. It was not the intention of the legislature to enact that the owner of an old building could not run up a new front on the old foundation without falling back to the new line. This might and in many cases would entirely change all the internal arrangements of the house, especially if it was a dwelling. If this was so, and the improvement in question was as is alleged an alteration of a building, which at the date of the Act of Assembly was then erected on the south side of Chestnut street, surely the defendants might fall back less than five feet. To say that this is a doubtful question is decisive against the injunction. Chancery never puts forth this strong arm unless in a clear case of the invasion of a private or public right.

We concede that no usage, however long-continued, will justify an encroachment great or small upon a public highway. But in the exercise of that sound discretion with which a chancellor is invested, he may well consider and give effect to such an usage as rightfully persuasive to arrest his interposition by the writ of injunction. Otherwise he might be made the instrument of very gross injustice. Courts of equity are not instituted in general to enforce abstract legal rights. There must be substantial, irreparable injury attempted. The encroachment on a public highway to be remedied by this process must be really an obstruction to the free use of it. Now it is very clear that, admitting that the defendants were bound to fall back with their new -front, to the new line — the columns, cornices and ornaments they have added to their new front are no real obstruction of the highway, though it may be that technically they are so. It is certain that under the ordinance of the city of Philadelphia of September 3d 1864, they might have placed cellar-doors, porch.es or steps extending into the footway four feet six inches and forming thus a much more serious obstruction of the highway than any that has been attempted. Every case of this kind must depend on its peculiar circumstances' and will form no precedent for any other case varying from it in those circumstances or the character and extent of the encroachment.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Per Curiam.

text:
    Schott’s Estate.
    1. A testator, after providing for his wife, directed that no distribution of his estate should be made until five years from his death, and not then unless his wife were dead. He gave some legacies, and directed that the income of his estate should be paid in sixth parts to certain legatees until the time for distribution of his estate. At the time of the distribution of the corpus of his estate, he ordered it to be divided into six parts ; one part he eave.to his son Guy, and in case of his death without issue before the distribution, he gave it over, with the proviso that if he died before the time of distribution without issue, $5000 in Allegheny bonds should be paid to Guy’s wife. Guy died before the time of distribution, his wife surviving. Held, that she was not entitled to the $5000, until the time of the distribution.
    2. The legacy to Guy’s widow vested at his death, but its payment was suspended until the time fixed for the distribution of the testator’s estate.
    _ 3. Every sentence and word in a will must be considered in forming a judicial opinion upon it, and the intention of the testator from the words of a will taken altogether, must govern its construction.
    4. The general intent of a will being ascertained, a particular inconsistent intent will be overlooked.
    January 13th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.
    Certificate from Nisi Prius. No. 339 to January Term 1872.
    This was an amicable action and case stated, in which Marian G. Schott was plaintiff and the executors, &c., of James Schott, deceased, were defendants. The case stated exhibited as follows:—
    James Schott died on the 23d of October 1870, having made his will, dated December 12th 1866, with a codicil dated December 23d 1868.
    By his will he gave all his estate to his executors in trust, to be disposed of as follows :—
    He directed that his wife and son, Guy Bryan Schott, should respectively have, during life, houses designated in the will. The next clause of the will is:—
    “ Item. It is my will that no division or distribution of my estate shall be made until after the expiration of five years from the day of my death, and not then if my wife shall be living, and not until after the death of my wife.”
    He then directed that his executors should pay to his wife such part of the income for life as she might require; to his son, Guy Bryan, he gave $1200 per annum “ until there shall be a division of my estate.” He then directed annuities to certain grand-children “until there shall be a division of my estate.” The will then proceeded:—
    “ It is my will that the remainder of the net income of my estate shall be divided into six equal parts.” He gave one of these sixth parts of the income to each of several classes of beneficiaries, “until the time arrives for the distribution of my estate.”
    The disposition of one of these sixth parts of the income was as follows, viz.:—

      “ One other sixth part to my son Guy Bryan Schott, and in case of his death before the division of my estate, to his lawful issue, if he shall have any, but in default of lawful issue, to be discontinued and remain part of my estate, but if his wife, Marian, shall be living, I direct my executors to pay her five hundred dollars, she being comfortably provided for in her own right.”
    The will further provided:—
    “ After the expiration of five years, and when the time shall arrive for the division and distribution of my estate, as hereinbefore provided for, it is my will that the whole of my estate that shall remain after the aforesaid legacies are paid and provided for, shall be disposed of as follows
    He then gave two sixth parts to each of two classes of grandchildren, in the manner specified in the bequests, and further directed, “that the whole of the remainder of my estate, real, personal and mixed, shall be divided into four equal parts, and disposed of as follows, viz.:” One fourth part to go, as is .provided in the will, to each of three daughters for life, with power to dispose of the same by will, or, in failure of making wills, to go over.
    He then provided as follows:—
    “ One other fourth part to my son Guy Bryan Schott, and in • case of his death before the distribution of my estate, to his lawful issue, if he shall have any; and in default of lawful issue his interest shall cease, and his share shall be equally divided between his sisters, Charlotte S. Engles, Martha B. Whitney, and Maria L. Hand, and added to the amount they may otherwise be entitled to from my estate; but if my said son shall be living when the time arrives for the distribution of my estate, his share shall be paid to him and at his own disposal. In the event of the death of my son G. Bryan before the distribution of my estate, .leaving no lawful issue, and his wife Marian shall then be living, I hereby authorize and direct my executors to pay her five thousand dollars, par value, of my Allegheny county five per cent, bonds; she being otherwise comfortably provided for in her own right.”
    Guy Bryan Schott, a son of the testator, died on the sixth day of September 1871. The plaintiff is his widow. The executors of the will of James Schott paid to her, after her husband’s death, the legacy of $500, mentioned in the said will.
    The plaintiff contends that she was entitled to receive also the $5,000 Allegheny county five per cent, honds, mentioned in the said will on the day .of the death of her husband. The defendants contend that she was not so entitled, and will not be entitled to receive the same until the expiration of the time at which it is provided by the said will that the estate of the testator shall be distributed, viz.: five years after his death, provided, the plaintiff should then be living.
    “If the court should be of opinion that she wás entitled to receive the said $5000 Allegheny county five per cent, bonds upon the said sixth day of September 1871, judgment is to be entered for the plaintiff, for the said sum of $5000, payable in the said bonds, together with all the interest that has accrued, and been received thereon, since the said sixth day of September 1871.
    “ If the court should be of opinion that the said sum is not so payable to the plaintiff, then judgment is to be entered for the defendants, without prejudice to the plaintiff’s right, or that of her legal representatives, to institute other legal proceedings after the expiration of five years from the death of the testator, if she or they shall then be lawfully entitled so to do.”
    Mr. Justice Mercur, at Nisi Prius, entered judgment on the case stated for the defendants, delivering the following opinion:—
    “James Schott died on the 23d day of October 1870, having first made his last will and testament, wherein he provided, inter alia, that, ‘ in the event of the death of my son, G. Bryan, before the distribution of my estate, leaving no lawful issue, and his wife Marian shall then be living, I hereby authorize and direct my executors to pay her $5000, par value, of my Allegheny county five per cent, bonds.’
    “ G. Bryan Schott, the son of the testator, died on the 6th day of September 1871, before distribution of the estate was made ;• but whether he left lawful issue is not stated, although the counsel on both sides have argued the case as if he had left none, and it appears that a legacy of $500 has been paid to his widow that she would not have been entitled to receive in case he had left issue. The -plaintiff is his widow, and claims she was entitled to the said bopds upon the death of her husband. The defendants deny her right to demand them until the distribution shall be made.
    “ Looking at the foregoing extract only, the plaintiff’s construction would seem to be the correct one. In the event that ‘ his wife Marian shall then be living’ would indicate ‘ then’ as pointing to the time of her husband’s death. The rule, however, by which a will is to be construed, requires us to examine the whole instrument. Every sentence and word in a will must be considered in forming a judicial opinion upon it: Turbett v. Turbett,. 3 Yeates 187. The intention of the testator drawn from the words of a will, taken altogether, must govern in its construction: Lynn v. Downes, 1 Yeates 518. The intention of the testator, said Yeates, Justice, in Eindlay v. Riddle,. 3 Binn. 149, has always been deemed the first great leading fundamental rule in the construction of wills. It is true, the intention of the testator shall not govern in the construction of a will where the rule of law overrules the intention. This is said to be reduceable to four' instances: 1. Where the devise would make a perpetuity; 2. Where it would put the freehold in abeyance; 3. Where chattels are limited in inheritances; and, 4. Where a fee is limited on a fee: 2 Dallas 244. To this list may be added the case where the Act of Assembly of 27th April 1855, makes that a fee-simple estate which the testator intended should be a fee-tail only. None of these exceptional cases, however, interpose in this case to prevent full effect being given to the testator’s intention. It is the general intent of a will which controls in its construction. Hence, the general intent being first ascertained, a court will, in order to give effect to such intent, overlook a particular intent inconsistent therewith : Findlay v. Riddle, 3 Binn. 150.
    “ Tested by these rules, and examining the whole will, we discover the great controlling idea and intention of the testator to be as expressed in the third item, ‘ that no division or distribution of my estate shall be made until after the expiration of five years from the day of my death.’ Within those five years certain legacies are made payable out of the income from his estate; but no portion of the principal shall be disturbed. After having made a disposition of the income to his several descendants, and persons intermarried therewith, in each case referring to the subsequent distribution of his estate, he says : ‘ After the expiration of five years, and when the time shall arrive for the division and distribution of my estate, it is my will that the whole of my estate, real, personal, and mixed, shall be disposed of as follows.’ Then, after making some provision for several of his grandchildren, he again recurs to a general distribution in these words: ‘ After the expiration of five years, and when the time shall arrive for the division and distribution of my estate, as hereinbefore provided for, it is my will that the whole of my estate that shall remain after the aforesaid legacies are paid and provided for shall be disposed of as follows.’ Then follow other legacies to several other of his grandchildren, after which the testator says : e It is my will that the whole of the remainder of my estate, real, personal and mixed, shall be divided into four equal parts.’ The income from one part thereof is given to each of his three several daughters during life, with power to dispose of the said part by will. The other fourth part thereof is given ‘ to my son Gruy Bryan Schott; and in case of his death, before the distribution of my estate to his lawful issue, if he shall have any; and in default of lawful issue his interest shall cease and his share shall be equally divided between his sisters. * * * But if my son shall be living when the time arrives for the distribution of my estate, his share shall be paid to him and at his own disposal.’ Then immediately follows the clause first quoted, under which the plaintiff rests her right to recover upon the death of her husband. It appears from the portions of the will recited that no general distribution of the property, no division of the principal, was to be made until five years after the death of the testator. Neither son, nor daughter, nor grandchild, was entitled to receive one dollar of the principal within the five years. Within that time the legacies given to all of them were to be paid out of the income only. If the construction claimed by the plaintiff be correct she stands upon higher ground than either of the legatees in whose veins the blood of the testator flows. Within the five years she can withdraw a portion of the principal of the estate: none of his descendants can. The general intent of the will leads to an entirely different conclusion. To give effect to that general intent, we say the true reading of the will is, ‘ in the event of the death of my son G. Bryan before the distribution of my estate, leaving no lawful issue, and his wife Marian shall be living at the time of said distribution.’ May we so change the language to effectuate the general intent? Words maybe added, altered, or rejected, for that purpose: Duffield v. Morris, 4 P. L. J. 79. The construction claimed by the plaintiff destroys the symmetry of the will, and would produce results inconsistent with the whole spirit of the distribution of the property proposed.by the testator; while the other view, that the plaintiff is not entitled to the bonds until the general distribution of the property shall be made at the expiration of five years after the death of the testator, harmonizes all his dispositions, an.d accomplishes all his intentions. We may, therefore, safely conclude that the latter is the true will of the testator : Earp’s Will, 1 Pars. 457.
    “Judgment is therefore to be entered for the defendants, without prejudice to the plaintiff’s right, or that of her legal representatives, to institute other legal proceedings after the expiration of five years from the death of the testator, if she or they shall then be lawfully entitled so to do, according to the case stated.”
    The plaintiff took a writ of error, assigning for error the entry of judgment for the defendants.

      J. V. Darling and 6r. W. Biddle, for plaintiff in error.
    The legacy of $5000 was specific; Hawkins on Wills 301; Ludlam’s Estate, 1 Harris 189; Blackstone v. Blackstone, 3 Watts 337. The legacy having become vested upon the death of the son, no general intent as to the distribution of the corpus can make a different period of vesting: Hassanclever v. Tucker, 2 Binn. 525.
    Porter, for defendant in error.
   Judgment was entered in the Supreme Court, January 18th 1875,

Per Curiam.

We think that the legacy of the Allegheny county bonds to the widow of Guy Bryan Schott vested at the death of Guy Bryan Schott without issue, but that its payment was suspended until distribution made according to the terms of the will of James Schott. The opinion of the judge at Nisi Prius sufficiently vindicates his judgment, and we affirm it, therefore, for the reasons given by him. Judgment affirmed.


author: Mr. Justice Mbrcur

text:
    Flounders et al. versus Hawley et al.

    1. By Act of Assembly, a loan association was authorized to lend to its stockholders, and the borrower might repay the loan at any time ; if repaid before the end of the eighth year, there should be refunded to the borrower one-eighth of the premium of every year of the eight years unexpired. “ In case of a recovery of loans by process of law, when the amount collected by or distributed to the corporation shall exceed the amount of the loan taken by the borrower, &c., the money shall be re-loaned and the excess recovered beyond the amount required to pay the loan, &e., shall be returned to the borrower, &c., provided that if the premium offered for the re-loan shall be greater than that originally given by the borrower, the amount of the original premium only shall be paid by the corporation.” A loan of $1500 was made May 17th 1869, the premium being $153. By legal process, April 24th 1871, the property on which the loan was secured was sold by the sheriff, and the association received the full amount of the loan, &c. They again lent the same sum at a premium of $180. Held, that the borrower was entitled to receive from the association the first premium of $153.
    2. The act does not require any borrower to pay the premium on any loan for a greater number of years than he retains it; nor can the association on a re-loan keep both the original and second premium for the same period of time.
    January 21st 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Delaware county: Of July Term 1874, No. 71.
    This was an attachment-execution, at the suit of Joseph W. Hawley and Samuel W. Hawley, trading as Hawley k Brother, to the use of William H. Newlin, against Isaac N. Flounders, defendant, and The Second Media Loan and Saving Association, garnishees.
    The garnishees were incorporated under the Building Association Act of April 12th 1859, Pamph. L. 544, 1 Br. Purd. 183, et seq. By the provisions of the Act the funds of the company were offered monthly as loans to such of the stockholders as would pay the highest premium, and no premiums, or interest on the premiums, should be deemed usurious.
    A case was stated between the parties, which exhibited the following facts:—
    “ The defendant, being a stockholder in the association, on May 17th 1869, purchased a loan of $1500 from the association, for which he paid a premium of 10£ per cent., amounting to $153.75, the net amount received by defendant from the loan being $1346.25.
    ' “ This loan was secured on a planing mill and lot, &c., by a mortgage for $1500, which was sued out by the association by proceedings commenced on April 24th 1871. The sum of $1604 was collected and paid over to the said association by the sheriff in payment thereof,
    Being the principal of said mortgage, . . $1500
    Interest due thereon, .... 90
    Fines, ....... 14
    $1604

      “ At the next regular meeting after the receipt of the above amount from the sheriff, the funds in the treasury of said association, including this sum, were lent in the usual way to the highest bidders, at an average premium of 12.44-75 per cent., the premium upon said sum-of $1500 thus re-loaned being $188.80. Both these premiums, the sums of $153.75 and $1.88.80, are still in the hands of the association; no part thereof having been refunded to the defendant.
    “If the court be of the opinion that the association garnishee is legally entitled to retain from the defendant all the moneys received as premiums, both for the loan and re-loan of said sum of $1500, then judgment to be entered in favor of the said garnishee.
    “ But if the court he of the opinion that the garnishee is not legally entitled to retain both the premium on the first loan and the premium received for the re-loan, then judgment tobe entered against the garnishee for the sum of $153.75, the amount of said premium first received, or for such part thereof as the court may be of opinion the said garnishee is legally entitled to refund the defendant.”
    The opinion of the court was as follows:—
    “In this case the plaintiff claims money in the hands of the defendant upon the facts stated in the case. The claim is based upon the 5th section of the Act of 1859, relating to building associations. The section is not very clear, but it is sufiSciently apparent that the legislature intended the association to receive the highest of several premiums given for the same money where , it is collected by legal process and re-loaned. Judgment will therefore be entered for the plaintiff according to the case stated.”
    The defendant took a writ of error, and assigned for error: entering judgment in favor of plaintiff.
    The 5th section of the act referred to in the opinion of the court is: “A borrower may repay a loan at any time, and in case of the payment thereof before the expiration of the eighth year after the organization of the corporation, there shall be refunded to such borrower one-eighth of the premium paid for every year of the said eight years then unexpired ; and in case of recovery of loans by process of law, when the amount collected by or distributed to the said corporation shall exceed the amount of loan taken by the borrower; with interest and charges, the money shall be re-loaned at the next stated meeting, and the excess recovered beyond the amount required to pay the loan, with interest and charges, shall be returned to the borrower from whom the money was collected, or his or her legal representatives: Provided, that in case the said corporation shall have issued its stock in series, such re-loan shall he made only to the stockholders of the same series: and Provided, that if the premium offered for the re-loan shall be greater than that originally given by the defaulting borrower, the amount of the original premium only shall be paid over by the said corporation; and Provided, that such defaulting borrower may, at any time after the said re-loaning, demand from the said corporation the amount required to be paid to a stockholder withdrawing his stock, saving and' excepting, however, to the said corporation, the right to retain so much or the whole thereof as may be requisite to save it from loss, in case the amount recovered shall not suffice to pay the re-loan.”

      O. F. Bullard, for plaintiffs in error.

      II. 0. Howard, for defendants in error.
   Mr. Justice Mbrcur

delivered the opinion of the court, May 10th 1875.

This-case arises under the 5th section of the Act of 12th April 1859, relating to “building associations.” Purd. Dig. 184, pl. 5.

The act contemplates that loans shall be made for a term of several years, and they may be at a rate of interest exceeding six per cent. The act however, does not compel a borrower to retain the loan until the day fixed for its final payment. He may repay it at any time. As he has paid in advance, the premium for the whole term of the loan, in case of an earlier payment, this section provides for the refunding of a portion of it. If the payment be voluntary, the proportion of the premium to be refunded is clearly stated, but in case of a recovery by process of law, the language of the act is obscure. It declares when the amount thus collected by, or distributed to, the corporation shall exceed the amount of loan taken by the borrower, with interest and charges, the money shall he re-loaned at the next stated meeting, and the excess recovered beyond the amount required to pay the loan with interest and charges, shall he returned to the borrower from whom the money was collected, or his or her legal representatives: Provided, that in case the said corporation shall have issued its stock in series such re-loan shall be made only to the stockholders of the same series; and Provided, that if the premium offered for the re-loan shall be greater than that originally given by the defaulting borrower, the amount of the original premium only shall be paid over by the said corporation.”

A literal reading of the portion of this section first quoted, would import that no part of the premium paid should be refunded to the borrower, when the loan was recovered by process of law, unless the amount collected or distributed to the corporation exceeded the amount of the loan taken by the borrower with interest and charges thereon. This, however, cannot be the correct reading of the section. The security is taken for no more than the loan or sum sold. Hence by no process of law could any more than that sum with interest and charges be recovered. It could not then have been the intent to provide for a contingency that cannot legally arise. Such a construction must then be given to the language as will not make the statute nugatory; but one that will harmonize with the spirit and design of the act.

The clear general intent of the act is not to require any borrower to pay the premium on a loan for a greater number of years than he shall retain it. The corporation shall not, on a re-loan for a premium, keep both the original and second premium for the same period of time. If, however, the second premium be greater than the first, the second proviso permits the corporation to retain the greater, and pay back the lesser to the first borrower from whom the corporation has received it. To give due effect to the true intent of the statute, in case of a recovery by process of law before the loan matures, we must construe “ the amount of loan taken by the borrower” to mean the sum of money actually paid to, or received by, him. As this part of the section does not go into effect until after the corporation shall have had an opportunity of re-loanirig the sum thus recovered at a greater rate of interest than the original loan, this construction protects both the first borrower and the corporation.

In this case it is shown that the first borrower paid, as a premium on the loan, the sum of $153.75. After the loan was recovered by process of law it was re-loaned for a premium of $188.80. It was thus within the language of the second proviso “greater than that originally given by the defaulting borrower.”

It, therefore, follows that the learned judge was correct in holding the amount of the original premium should be refunded to the first borrower. Judgment affirmed.


author: Mr. Justice Williams

text:
    Sankey’s Executors versus First National Bank of Mifflinburg.
    1. Government bonds were deposited in a bank; the depositor alleged that the bank bought them from him at par, fraudulently informing him that there was no premium on them, when there was, within the knowledge of the bank. The depositor sued the bank for the premium and declared in the common money counts. Held, that the depositor could not recover on those counts.
    2. If the bonds were purchased by the bank in good faith at par, although they were then selling in the market at a premium, of which both parties were ignorant, the depositor could not, on the ground of mutual mistake, recover the bonds or the premium on them.
    3. The mistake or ignorance of the parties as to the premium was not of the essence of the contract, and did not avoid the sale.
    January 26th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Union county: Of July Term 1873, No. 73.

      This was an action of assumpsit, brought August 25th 1869, by Jacob Sankey and others, executors, &c., of John Sankey, deceased, against The First National Bank of Mifflinburg. The claim was that the plaintiffs’ testator, and the plaintiffs after his death on account of the estate, had deposited with the defendants, United States 7-30 bonds, the whole amounting to $6800 ; that when one of the executors called on the cashier for delivery of the bonds, the cashier induced him to receive a certificate of deposit from the bank for the par value of the bonds, although they were, at that time, selling in the market at a premium of 6 or 7 per cent., of which the executor was ignorant, and that the cashier at the time, informed him that those bonds were not at a premium, although he knew that they were. One of the bonds was for $500. The declaration was in the common counts only.
    The case was tried May 22d 1873, before Junkin, P. J., of the Forty-first District.
    Jacob Sankey, one of the plaintiffs, testified to the deposit of the bonds; that on the 19th of August 1867, witness went to the bank and asked the cashier for the bonds, to use in the Orphans’ Court of Centre county, in answer to a citation. The cashier said he had shipped the bonds, he did not say where, and had no return ; he said he could do nothing but give the executors a certificate of deposit; that they must have something to show; witness asked the cashier if there was not a premium on the bonds; the cashier said there was not. The witness thought he could do no better than take the certificate of deposit. “ I was not selling, nor intending to sell them, by taking a certificate of deposit; he drew the certificate and wrote something in his book — I did not know what it was— and asked me to sign it.” Before signing, witness said to the cashier, if there was any premium it belonged to the estate and the executors wanted it. His answer was that he did not know that there was any premium on them. “ Then I signed my name below the entry on the book ; I mailed the certificate to The First National Bank of Bellefonte. * * * I got the certificate and went to defendants’ bank and demanded these bonds from the cashier, and he said the president had expressed them that week. * * * I demanded the bonds that day, but did not get them. * * * I gave up the bonds when I got the certificate.”
    The plaintiff gave evidence that in August 1867, the bonds were worth $106 to $106.50.
    For the defendants, J. W. Sands, cashier of the defendants, testified, that on the 19th of August 1867, the bonds were sold to the bank by Jacob Sankey, one of the executors. “He wanted the bonds, and I said he could have them, and then he wanted the money, and as I was about to unlock the safe, he said, ‘ Can’t you arrange this matter with the Bellefonte Bank ? ’ that he did not feel secure in carrying that amount through ‘ the Narrows.’ I told him I could give him a draft, for which I would charge him the exchange; he did not seem willing to pay exchange, as he said he wanted to deposit the money in the bank at Bellefonte. I then gave him a certificate of deposit, which I said would answer his purpose same as the money. He then gave me the receipt, which he held, showing bonds in our possession. I took this receipt upon the book, where the bonds were entered ; viz.: ‘ Received, August 19th 1867, these bonds $6800 7-30. Jacob Sankey, one of the executors.’
    “ He offered the bonds for sale and sold them; nothing said about premium that I recollect. Once, previously to this transaction, I spoke to one of the executors, Mr. Reighard, and I then told him that it was time to have those bonds sent in to the government for conversion into 5-20s, as after the 15th of' August 1867, they would not be convertible according to the notice; they were then due and all that were held to that date and after would be paid at par. * * * * Sometime after that, Mr. Reighard came in, and he exhibited a letter and said that Jacob did not wish the bonds converted; that he wanted them to run to maturity and then have them paid in money, and gave reasons, that there was a dowry to remain in the farm, and he wished to handle this money. * * * These bonds were actually in the custody of the bank on the 19th of August 1867. I did not tell Sankey that the bonds were shipped. There was no condition attached to the sale of these bonds. These bonds were, with the exception of one $500, of the first series of 7-30s, and fell due 15th of August 1867. They were redeeming these bonds at par after 15th of August 1867. I had no other information on 19th of August 1867, than that the government was paying them at par. Our bank is located at Mifflinburg, Union county, about ten miles from telegraph and railroad. On the night of 20th of August 1867, when the Philadelphia mail came, found that the government had extended the time thirty days for the conversion of these bonds. I did not tell Jacob Sankey, for I did not then know that the government had extended the time of conversion, and I did not tell him that there was a premium on these bonds, because I did not know there was. The bank paid the certificate of deposit. These bonds were converted into 5-20 bonds by the bank, and were returned to bank on 12th of September 1867, except the $500 bond. The time for conversion was extended on the 13th of August, and I got the paper containing it on the night of the 20th of August 1867. The $500 bond of the third series had a premium. Jacob Sankey was there some time before he sold the bonds. When Jacob Sankey came back on 22d or 23d of August, he told me, or may have said to me, that the bonds were worth 6 ■or 6J premium; that he had been told so, and he demanded the premium. T told him that the bank had purchased the bonds and wo uld .keep, th em. ”

      The following are points of the plaintiffs, and their answers:—
    2. The executors had no right to sell the 7-30 United States bonds deposited in said bank, under their value, including the premium, and if defendant, by its officers, induced plaintiffs to part with them below their value, then plaintiffs can recover the difference.
    Answer. The executors could sell these bonds if they chose to do so, and if they parted with them under their market value, under circumstances which shows no gross negligence on their part, but on the contrary good faith, and under the honest belief that there was no premium on them, they would not be liable to account to the estate for the premium. And unless the bank induced them to part with the bonds under their value, by false representation, the plaintiff cannot recover, as we have fully explained in the general charge, unless it should be for the premium on the $500 bond not due until 1868, as we will explain to you in the answer to the fifth point.
    3. If plaintiffs and defendant were both mistaken as to the value of said bonds, not knowing at the time that the same were worth six and seven and one half premium, when they were actually worth that, then it was a mutual mistake, and any sale made under such circumstances does not prevent plaintiffs from recovering the balance of their value.
    Answer. The mere fact that both Sands and the executor were honestly mistaken in the premium value of these bonds, does not of itself avoid the sale of the bonds to defendant, because, as to the intrinsic face value of the bonds, as to all they called for, and as to all the government had promised to pay, the plaintiffs did get their value.' The fact that there attached to these 7 — 30s a premium value, created by outsiders, in the purchase and sale of these securities, which was not constant nor uniform in the market, and which not only changed up and down, from day to day, but even from hour to hour (a value often trembling in the whirl of a monetary crisis, like a chip in a cyclone), must he considered as so uncertain, as to be insufficient to avoid or rescind a contract because of the misapprehension of this value by the contracting parties. It is so. much a parasite, that the supporting trunk knows nothing of it, and to hold the sale void for such a reason would render their sale impossible; for, however trifling the mistake might be, the principle would be the same. It also must be mutual, bind vendor as well as vendee, and could it be pretended in this case, that if the bank had allowed too much premium, that it could have recovered back ? Sankey’s and Sands’ means of information were the same, and the moment they commenced bargaining for the sale and purchase of the bonds, the trust was broken up and the parties dealt at arms’ length. Therefore we answer this point in this qualified' way, and refer you tp the general charge.
    4. The cashier called by defendant proves that a few days after
      the alleged sale, Jacob Sankey, one of the executors, called at the bank, and demanded the bonds or premium, and that the bank then still had the bonds in controversy in possession undisposed of, and it was the duty of the bank to deliver up the bonds on repayment, or at least pay the premium thereon, and not having done so, plaintiffs are entitled to recover the premium, which is proven to be not less than six or seven and one half to the dollar.
    Answer. If this was an absolute sale, as sworn to by Mr. Sands, the bank was not bound to return the bonds nor pay the premium, and all this we have fully explained in the general charge.
    5. There is no pretence that the bank officers were not aware that the $500 bond of third series was not worth a premium at the time of giving the certificate of deposit; and besides, J. W. Sands, the cashier, swore that he knew there was a premium on bonds not matured.
    Answer. If Sands told Sankey that there was no premium on any of the bonds, when in fact there was a premium on the $500 bond, then you should find this premium (which would be about $40) for the plaintiffs.
    6. Under the evidence plaintiffs are entitled to recover.
    Answer. We cannot take the case from you, and whether the
    plaintiffs are entitled to recover depends upon the facts found, as explained in the general charge.
    The court charged:— * * *
    “ If the witness, Mr. Sands, is believed, there was a sale of these bonds to the defendant, and the only difference there is between the statements of the cashier and the executor, is in reference to representations made by the cashier; that is, the latter denies that he told the former that the bonds were shipped, and that he told him in addition that there was no premium on them. The testimony of the cashier is supported by all the written papers which were executed at the time, to wit, the receipt, and the certificate of deposit, which indicate an unconditional sale. Then, if Mr. Sands is believed, the only remaining question is, did he fraudulently conceal from the executor any fact touching the value of these bonds, which good faith and fair dealing required him to disclose ? Had Sands, the cashier, any knowledge, bearing upon the market value of these bonds, which was not known to the executor, and which he fraudulently withheld from him ? As a general rule, a vendee about to purchase a chattel from another, is not bound to impart to the vendor any knowledge which he may possess — that the article has advanced in price — but on the contrary he may keep silence, and it is only when he speaks, that he is held to the truth of what he chooses to say. His silence cannot misrepresent. Then, did this cashier say to this executor, that there was no premium on these 7-30 United States bonds, and thus induce the latter to sell at par ? Now if he did, and knew at the time that this was false,
      that, in point of fact, the bonds were commanding in the market a premium of from six to seven and one half per cent., then he was guilty of fraudulent misrepresentation, and the plaintiff may recover the difference between the par value and the market value of these bonds on the 19th of August 1867.” * * * [Now, we say to you, that if you find the facts to be, that on the 19th of August 1867, when the bank purchased these bonds, it was not known to their cashier, who did the business for the bank, that the government had, by its order of the 13th of August 1867, extended the time for the conversion of the overdue 7-30s into 5-20s, then these plaintiffs cannot recover], because no concealment of a fact could be possible on the part of the cashier, when he had no knowledge that such a fact existed; a man can neither conceal nor disclose what he does not know. To hold that any sudden rise or fall in the market value of an article of traffic, unknown to the vendor and vendee, would render void a sale, would arrest all buying and selling, and the business of the world would stand still, litigation become universal, and trade impossible; therefore, we say to you that, viewing this as a sale of the bonds by the executor to the bank, [the mere fact that at the time of the sale (19th of August 1867), it was known in the centres of trade that the time for the conversion of 7-30s into 5-20s had been extended thirty days, thereby bringing these bonds from par to six or seven per centum premium, but which fact was unknown to the cashier of this bank, does not, in law, make the bank liable to pay the premium in this action], and you should find for the defendant, unless you find under the evidence, that when the executor, on the 19th of August 1867, called upon the former for the bonds, Mr. Sands told him that the bonds were not there, but had been shipped; because, if Sands thus represented that the bonds were shipped, when in fact they were in the custody of the bank, this would be such a fraudulent misrepresentation as would make the bank liable to pay the uttermost farthing of the value of the bonds to these plaintiffs. But did he do this ? * * * Even should you find that the cashier told Sankey, the executor, that there was no premium on the bonds, and told him this because he believed it, this would not entitle the plaintiff to recover, because, although it was untrue in point of fact, still it was not fraudulently false, but only unintentionally and mistakenly so ; so that the only false and fraudulent representation which could affect the bank, would be as we before stated, the cashier telling the executor that he had shipped the bonds when in fact they were still in the custody of the bank. But do you believe that Mr. Sands ever said so, without motive of any kind to induce him thus to misrepresent ?”
    The verdict was for the plaintiff for $47.
    The plaintiff took a writ of error, and assigned for error, the answers to their points and the parts of the charge in brackets.

      6?. F. Miller, for plaintiff in error.
    The receipt signed by but one executor is no bar: Hamsher v. Kline, 7 P. F. Smith 398. A contract made in mutual mistake is voidable: Miles v. Stevens, 3 Barr 21; Bishop v. Reed, 3 W. & S. 265; Watts v. Cummins, 9 P. F. Smith 84.

      J. M. Linn for defendant in error.
    The mistake must be of the essence of the contract: Miles v. Stevens, 3 Barr 21. The premium here was adventitious. One purchasing goods is not bound to answer as to the state of tne market: Blydenburgh v. Welsh, Baldwin 331; Laidlaw v. Organ, 2 Wheaton 178; Harris v. Tyson, 12 Harris 359. There was no relation of trust obliging the bank to speak: Kintzing v. McElrath, 5 Barr 469. The executor had the right to sell: Whale v. Booth, 4 Term R. 465; Redfield on Wills, Part II. 219.
   Mr. Justice Williams

delivered the opinion of the court, October 14th 1875.

This was an action of assumpsit to recover the premium on certain United States bonds or certificates belonging to the plaintiffs’ testator. The declaration contains only the common counts for goods sold and delivered, and for work done, &c. Upon the evidence given by the plaintiffs, and their theory of the case, they were not entitled to recover under any count in the declaration. .They denied that they had sold the bonds to the bank, in which they were deposited for safe keeping, but alleged that they had been induced, by the false and fraudulent representations of the cashier, that the bonds had been shipped, and that there was no premium on them, to accept a certificate of deposit for the amount due on their face with the accrued interest; and that having learned within a day or two thereafter that the bonds were'selling at a premium of six to six and a-half per cent., they took the certificate to the bank and demanded the bonds, but the cashier refused to deliver them or pay the premium. It was denied, on the part of the bank, that the plaintiffs had been induced to accept the certificate of deposit in lieu of the bonds by any false and fraudulent representations of the cashier; but it was alleged, and the testimony of the cashier, if believed, showed that he had purchased them of the plaintiffs for the bank in good faith for the amount due on their face, with the accrued interest, not knowing that the government had extended the time for their conversion, and that in consequence thereof they were'selling at a premium; and that-instead of paying Jacob Sankey, the executor from whom the purchase was made, the money therefor, he had given him the certificate of deposit, which was afterwards paid by the bank, because he said that it would answer his purpose the same as money, and he did not feel safe in carrying that amount of money through “the Narrows.” The court instructed the jury, in substance, that if the plaintiffs had been induced by the false representations of the cashier to accept the certificate of deposit in lieu of the bonds, they were entitled to recover the premium for which like bonds were then selling, but that if the cashier had purchased them for the bank in good faith, not knowing that the time for their conversion had been extended, and that they were selling for a premium, the plaintiffs were not entitled to recover. The finding of the jury, under the instructions of the court, establishes the fact that the bonds were sold by the plaintiffs and purchased by the cashier in good faith, and that the latter was not guilty of any fraud or unfair dealing in making the purchase. The plaintiffs now contend — and it is the only point in the case, if such it can be called — that if there was a mutual mistake by both parties in reference to the premium on the bonds, which was discovered before either was in any way prejudiced, that the plaintiffs were bound to deliver up the bonds on demand or pay the premium ; and that the court erred in not so instructing the jury in answer’ to their fourth point. But if there was no fraud in the sale of the bonds, it needs no argument to show that this is not the law. If the bonds were purchased, in good faith, for the amount due on their face, the sale cannot be regarded as invalid, because bonds of the same issue were selling at a premium in New York and Philadelphia, and had a speculative value unknown to the parties. If this were the rule there would be no certainty in the sale of government and other securities, unless sold at the stock- boards, or in the money markets of the great centres of trade. The mistake or ignorance of the parties in regard to the premium was not of the essence of the contract, or its procuring cause; and if so, it did not avoid the sale. The only error that we discover in the trial of the case, was in instructing the jury that there could be any recovery under the pleadings and evidence, and in allowing the plaintiffs to recover the premium on the bond that was not -due and convertible, but of this they do not complain.

Judgment affirmed.


text:
    Dearie and Wife versus Martin.
    1. A mechanic’s claim was filed against “James Dearie and Margaret Dearie, owners,” &c. Margaret pleaded that “ she was and is the wife of James Dearie,” &e. The plaintiff replied that the work, &e., was done at the request of Margaret as well as of James, and was necessary and convenient for the preservation of her estate. Held, that the claim was defective in not showing that the property was the wife’s, and the repairs done by her authority, and that the defect in the claim could not be remedied by the replication.
    2. A claim cannot be amended after the statutory period for filing the claim.

      3. A wife’s property is not subject to a lien for work, &e., in its improvement and repair, on a contract with the husband, unless done by her authority.
    4. A husband cannot encumber his wife’s property without her consent, even for necessary repairs.
    5. In order to bind a wife’s property by a mechanics’ lien, the claim should show her coverture, and that the work, &c., was by her authority and consent ; otherwise the claim is void.
    6. The claim in this ease did not create a lien on the wife’s estate.
    February 3d 1875.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: No. 44, to January Term 1875.
    This was a scire facias on a mechanic’s claim, issued May 17th 1873, at the suit of Samuel 0. Martin, against “ James Dearie and Margaret Dearie, owners or reputed owners, and James Dearie, contractor.” The claim was filed on the same day (May 17th 1873) against “James Dearie and Margaret Dearie, owners or reputed owners, and James Dearie, contractor, and factory with its lot No. 2329 Oallowhill street, being a debt incurred for gas and steam-fitting and the necessary labor for the same furnished and done by the said Samuel 0. Martin to the said factory and premises, upon the orders of said James Dearie therefor, within six months preceding the filing of his claim, according to the said bill of particulars for and about the repair, alteration and addition to the said factory, of which the said James Dearie and Margaret Dearie were or are the owners or reputed owners, and the said James Dearie the contractor.”
    The bill of particulars annexed to the claim was charged:— “Mr. James Dearie,
    “For factory or lot No. 2329 Oallowhill street,
    “ To S. 0. Martin, Dr.
    “ To repairing and altering water, gas and steam-pipes in factory.”
    To the scire facias the defendants pleaded “ that the said Margaret Dearie, at the time the said labor and materials are averred in said claim to have been done and furnished, was and still is the wife of the said James Dearie, and * * * the said coverture she pleads in bar of the said claim of the plaintiff.”
    The plaintiff replied “ that the said work and materials were done and furnished at the request and at the authority of the said Margaret Dearie, as well as of the said James Dearie, and were necessary and convenient to the preservation and enjoyment of said estate.”
    The defendants demurred to the replication, “ that the plaintiff, in a scire facias on a mechanic’s claim filed against the property of Margaret Dearie, a married woman, has to a plea of coverture, set up in his replication the request and authority of the said Margaret Dearie, while no such request and authority are averred of record in the claim itself as filed.” * * *
    The District Court gave judgment for the plaintiff on the demurrer.
    The defendants removed the record to the Supreme Court by writ of error; they assigned for error that the court erred in entering judgment for the plaintiff on the demurrer to his replication :—
    1. Because there was nothing in the claim to show that Margaret Dearie was the wife of James Dearie.
    2. Because no request and authority of Margaret Dearie were averred of record, and on the face of the said plaintiff’s claim as filed.

      M. Abbott (with whom was D. Webster), for plaintiffs in error.
    —It should have appeared by the claim that the repairs had been made with the wife’s consent: Ward v. Black, 7 Phila. Rep. 342. A wife’s separate estate cannot be encumbered by the unauthorized act of the husband: Barto’s Appeal, 5 P. F. Smith 386. A claim against a wife for improvement of her separate estate is only constructively within the Act of 1848 : Finley’s Appeal, 17 P. F. Smith 458; Murray v. Keyes, 11 Casey 384. A plaintiff in a mechanics’ lien cannot amend it after six months:, Mahon v. Gormley, 12 Harris 83; Russell v. Bell, 8 Wright 53; Armstrong v. Hallowell, 11 Casey 485 ; Parke v. Kleeber, 1 Wright 251.

      J. H. Sloan

    cited Forrester v. Pittsburg, 2 Pitts. Rep. 298.
   Mr. Justice Williams

delivered the opinion of the court, October 14th 1875.

If the claim, on which the scire facias issued, was radically defective, it was no lien on the wife’s property; and the defect was not cured by the replication to her plea of coverture. The replication cannot be treated as an amendment of the claim, and if it could, it was too late to amend after the statutory period allowed for filing the claim. If the claim was fatally defective, it was as powerless to continue the lien for which the law provides, as if it had never been filed. It is clear that the wife’s property is not subject to a lien for work done and materials furnished in its improvement or repair, upon a contract with the husband, unless it is made with her authority. The husband cannot, by any act of his, encumber the wife’s property without her consent, even for the purpose of making necessary repairs. And if so, is it not essential, in order to bind the wife’s property, that the facts necessary to the validity of the lien should appear on the face of the claim ? Should it not show the coverture of the wife, and that the work was done and the materials furnished with her authority and consent ? How otherwise can it be known with reasonable certainty that the claim was intended to be a lien on the property of the wife and to bind her separate estate ? It seems to us but reasonable that the claim should set forth substantially all the facts necessary to the validity of the lien, and if it does not, that it should be regarded as inoperative and void. Is, then, the claim in this case sufficient,- if the wife’s property was subject to a lien for the work done and the materials furnished by the claimant ? It does not show the wife’s coverture in express terms or by necessary implication. It is true that James Dearie and Margaret Dearie are named as owners or reputed owners, and James Dearie as contractor. But it is not alleged that Margaret is the wife of James, and it is not necessarily implied from the fact that she has' the same surname. She may have been his mother, sister, or cousin, or she may have sustained no other relation to him than that of co-owner of the property sought to be charged. Nor is there anything to show that the debt, for which the claim was filed, was contracted for work done and materials furnished upon the authority and with the consent of the wife. It is not so alleged, and there is nothing in the claim from which it can properly be inferred. The fact that James Dearie is named as contractor cannot be regarded as a sufficient averment that the contract for the work and materials, for which the claim was filed, was made with the authority and consent of the wife. Being named as one of the owners, he was properly designated as. contractor, if the work was done and the materials furnished upon his orders, as alleged in the claim: Sullivan v. Johns, 5 Whart. 356. But if Margaret Dearie, the other alleged owner, was his wife, as shown by the pleadings, it does not follow, because he is named as contractor, that she authorized or consented to the contract on which the plaintiff’s claim is founded. If then the debt, incurred for the improvement of the wife’s property, was contracted during her coverture, as alleged in the plea, and impliedly confessed in the replication, the claim is incurably defective; and if so, as there can be no recovery upon it, it is immaterial whether the work was done and the materials furnished with her consent or not. If the claim was not a lien on the wife’s property by reason of her coverture, the replication was no answer to the plea,-and the court below erred in giving judgment for the plaintiff on the demurrer. Under the pleadings the defendants were clearly entitled to judgment. We have nothing to do with the supposed hardship of the case on the one side or the other. The substantial and only question presented by the record is, whether the claim, as filed, is a lien on the property of the wife. We think it is not, and that to hold otherwise would be productive of endless doubt and mischief.

Judgment reversed and judgment for the defendants below on the demurrer.