author: Mr. Justice Mercur

text:
    In re Contested Election of Gilleland.
    1. Where officers for the same office are to be chosen for different terms, the ballots must specify the term for each person for whom they are cast.
    2. In an election in which four school directors were to be elected in a ward, two for the term of three years, one for two years and one for one year, the “stickers” on certain tickets did not specify the term for which the candidate was voted for, nor did they by their position on the ticket designate the same. Held, that they could not be counted.
    November 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey, Sterrett and Green, JJ.
    Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1880. No. 149.
    Appeal óf John A. Gilleland from the decree of the court in the matter of the contest of the election of said Gilleland, as school director of the school district of the Fifth Ward of the city of Allegheny. The facts are stated in the following opinion of White, A. L. J.
    “The report of the examiner shows that the votes cast in the different precincts for school director for the ter-m of three years, undisputed, were:—
    1st precinct, J. A. Gilleland, 105 A. Ammon, 77 2d “ “ 89 “ 73
    3d “ “ 92 “ 69 •
    4th “ “ 62 “ 101 '
    348
    320
    The report also shows there were voted quite a number of ballots scratched and with stickers. All of these should be excluded, except the ballots marked in the exhibits as “ B ” and “ J.” The ballot exhibit “ J ” was complete, but the name of “ A. Ammon, three years,” was erased, and the name “John Gilliland” written opposite to it. We think that should be omitted. There were two of these in the first precinct and one in the fourth precinct, which will add three votes to Gilleland, making his total vote 351.
    The ballot exhibit “ B ” was full and complete, except that “A. Ammon” was pasted over B. F. Brown, the second name on the ticket for school director for three years. The ticket then stood:— School Directors :
    J. A. Gilleland, .... Three years.
    Adam Ammon,...... .■
    John A. Slagle, .... Two years.
    J. W. Bell, M. D., . . . . One year.
    As two persons were to be elected for three years, one for two years, and one for one year, it is fair to presume that A. Ammon was voted for the three year term, as that completed the ticket. This presumption is strengthened and demonstrated in fact, by the name occurring just after the name of J. A. Gilleland and pasted over a three year name. When it is reasonably certain what the votes meant, the court should give effect to the ballot. These votes, we think, should therefore be counted. .
    Of these ballots there were six in the first precinct, twenty-four in the third, and three in the fourth, making in all thirty-three; these added to Ammon’s vote as above, would make his total 353, being two more than Gilleland’s, and, of course, elect him.
    The exceptions to the report of the examiner do not affect this controversy, because, if true, they would not change the result. They are therefore dismissed.
    And now, May 11th 1880, after hearing the parties, their proofs and allegations and arguments of counsel, and after full consideration thereof, it is adjudged and decreed that Adam Ammon was duly elected a school director in the Fifth ward, Allegheny city, at the election held on the 17th February 1880, for the term of three years, instead of J. A. Gilleland, to whom a certificate of election was given., and that said John A. Gilleland was not elected. The costs to be paid by the school board.”
    Gilleland took this appeal and alleged that the court erred:—
    1. In assuming that the ballots east for A. Ammon specifying no years or term fe- which he was voted, were intended to be voted for him for the three year term, there being no evidence to support this assumption.
    2. In assuming that the name of A. Ammon in Exhibit “ B ” was pasted over “ B. F. Brown,” the second name on the ticket for school director for three years, there being no evidence offered that such was the fact.
    3. In adjudging and decreeing that Adam Ammon was duly elected for school director of the Fifth ward, Allegheny, for the term of three years, and that John A. Gilleland 'to whom a certificate was issued) was not elected.

      Schoyer McGill, for appellant.
    The name of a person voted for and designation of the office for which he is voted should be printed or written upon the ballots: Act July 2d 1839, sect. 70, Purd. Dig., p. 547, pl. 36; Id. sect. 75, p. 551, pi. 59; Id. sect. 75, p. 552, pl. 62; Act March 30th 1866, sect. 1, p. 547, pl. 40. And as this is a matter within the control of the elector, the law requiring it is mandatory, and should be strictly construed : Kerk v. Rhodes, Supreme Court Cal., October Term 1873. So where a candidate is voted for by the initials only of his Christian name, the surname being correct, parol evidence is admissible to apply the- ballot to the candidate for whom it was intended; but in the absence of evidence, such ballots must be rejected: Opinion of the Justices, 64 Maine Rep. 596; People v. Tisdale, 1 Doug. (Mich.) 59; Carpenter v. Ely, 4 Wis. 420. (See Brightly’s Election Cases, p. 258.) People v. Saman, 5 Denio 409; State v. Willoughby, 43 Conn. 533 ; State of Nebraska v. Griffey, 5 Neb. 161; Brightly’s Election Cases 267. And a ballot voted at a legal election without designating the office voted for is illegal and void: Nebraska v. Griffey, supra. The second section of the Act of April 11th 1862, Purd. Dig., p. 240, pl. 27, enacts, * * * “If vacancies are to he filled at any election of (school) director, in addition to the persons to be elected for the regular term, and the voters shall all neglect to designate on their tickets the terms of office for which each person voted for is a candidate, then the person or persons having the highest number of votes shall be declared elected for the longest term or terms ; the next highest in vote, after the filling of the longest term shall be declared elected for the next longest term, and so on, till all the terms vacant shall he filled.”
    ' It is a fair inference from this section of the Act of April 11th 1862, that the legislature intended that at any given election to fill vacancies, those ballots which designate the term of office for which the school director is voted, shall be counted, and those which do not contain such designation shall be rejected; and that in only one case shall such imperfect ballots be counted, viz.: where all the voters have been negligent, and none of the ballots voted designate the term of office. Our Supreme Court has lately decided (Milligan’s Appeal, ante, p. 222), “that where several incumbents are to be chosen to hold the same office for different terms, ballots which do not specify for which of the terms they are intended, should be rejected.” In contests of this nature the inquiry is not what the voter intended, but what intention he had expressed by his written or printed ballot: People v. Tisdale, supra; Milligan’s Appeal, supra.

      C. S. Fetterman, for appellee.
    The cases cited by the appellant do not affect this case. In Milligan’s Appeal, supra, there was nothing whatever to indicate for which of the terms the disputed ballots were intended. Here all the ballots fairly indicate on their face .the term for which they were intended. And this fact is also conceded by appellant. Why, then, should Mr. Ammon not have the benefit of them ?
    In The People v. Love, 63 Barb. (N. Y.) 535, the court say that: “ The placing of a paster containing one name over another name, indicates an intention to substitute one name for another. If it be placed over another name which is under the title of office, it indicates an intention to substitute for that office the name upon the ‘paster.’ ”
    In McCrary on Elections 311, the same doctrine is laid down, and The People v. Love, supra, approved.
    (See preceding case of Milligan’s Appeal, ante, p. 222. — B.EP.)
   Mr. Justice Mercur

delivered the opinion of the court, January 3d 1881.

At an election of school directors, held in the Fifth ward of the city of Allegheny, four directors were, to be chosen, namely, two for the term of three years, one for two years, and one for one year. The tickets voted generally contained the names of four persons, and opposite each the number o'f years, whether one, two, or three. In some cases a person was voted for without anything opposite his name indicating whether it was for a term of one, two, or three years. In other cases there were less than four names on the ticket. Of the ballots cast, stating three years opposite their names, Gilleland received more than Ammon. Thirty-three tickets with “stickers ” thereon were voted, with the name of Ammon thereon. They were so pasted over the name of a candidate printed on the ticket as to cover his name, and also the length of the term designated. On some other tickets Ammon’s name was so pasted as to cover two names and the designated term opposite each. On a few ballots Ammon’s name was found without a sticker and without any indication of the length of term opposite thereto.

As Ammon’s thirty-three “ stickers ’’ were pasted over the name of a person designated for a term of three years, and, although both name and term were covered and concealed, the court decided they should be counted as ballots for Ammon and for the term of three years, and thereupon decreed that Ammon was duly elected for the term of three years and that Gilleland was not elected. This presents the alleged errors.

The second section of the Act of 11th of April, 1862, Pamph. L. 471, is not applicable to this case. It provides only for cases in which the voters have all neglected to designate on their tickets the term of office for which each person voted for is a candidate — such was not this case. Here most of the ballots clearly stated on their face the term for which each candidate was intended.

It was agreed before the commissioner appointed to take testimony that- the ballots cast for the term of one and two years should be omitted from his report, excepting such as bear on the contest between Ammoh and Gilleland for the term of three years. We understand this to mean that votes cast for either of them for a term of one or two years should not be counted on their term of three years, but might be considered in determining how many votes were cast for each for the term of three years. If any votes were east for Ammon for either one or two years', it lessens the probability that the thirty-three votes were all intended for three years. If other ballots were cast for him for a less term than three years these might so have been intended. Certain it is several votes not “ stickers ” were cast for him without designating any term. On some ballots he was the only director voted for and no term was specified. It may be conceded, if the sticker had been pasted over the name only of another candidate, leaving visible the designated term opposite, that term would apply to the name on the sticker; but we cannot draw any such inference when the term is also covered. The effect of covering the name and term is the same as if they were both entirely erased. That which is pasted over is all that is visible to the eye of the officers of the election. They have no authority to remove the “sticker” and to decide that one part beneath is inoperative and another part remains in full force. We agree with the authorities cited that placing a paster containing one name over another name, indicates an intention to substitute one name for another; and if it be placed over another name which is under the title of office, it indicates an intention to substitute for that office the name on the paster. In such case the name of the person voted for and the term are both clearly shown on the ballot. There is no room for doubt. The ballot shall be adjudged to be just what its face declared. Apply that rule to the present case. The ticket was headed “ school directors.” Under that title of office was found the name of Ammon. Those tickets were undoubtedly intended to be votes for him as school director; but they stopped there. The electors voting them did not designate any specific term. For the court to determine the length of term intended by the persons casting these votes would be based on mere conjecture. It is just as uncertain as if everything printed on that line had been obliterated and Ammon’s “sticker” been pasted at the bottom of the ticket and no term written opposite. The intention of the voter as a general rule must be expressed by his written or printed ballot. It is true some inaccuracies in the name of a candidate, or in the manner of spelling it, may be proved by parol to give effect to the intention of the elector. That is not this case. Here the attempt is by mere inference to create a term which the voter did not attempt to declare. Where officers for the same office are to be chosen for different terms the ballots must specify the term for each person voted for, unless the case comes under the Act of 11th April, 1862, supra; Milligan’s Appeal, ante, p. 222. The learned judge therefore erred in counting the thirty-three votes for Adam Ammon, and in decreeing that he was duly elected a school director in the Fifth ward of Allegheny city at the election held on the 17th of February 1880, for the term of three, years instead of John A. Gilleland, to whom a certificate of election was given, and that said Gilleland was not elected.

Decree reversed, and it is ordered that the petition be dismissed, and that John A. Gilleland be reinstated in his said office for the term of three years according to the certificate of election given to him.


source: Caselaw Access Project

author: Mr. Justice Green

license: Public Domain

text:
    Reiter v. Morton.
    1. An action was brought by one of two partners upon articles of partnership to recover damages for the wrongful dissolution of the partnership by the defendant. The plea was covenants performed absque hoe. Held, that it was not sufficient for plaintiff to show that defendant dissolved the firm, but he must prove, in the first instance, that he himself had performed the covenants in all the articles on his part, and that the defendant, without cause, failed to perform his covenants. A technical breach of such articles is no breach at all. To show a breach which entitles the plaintiff to recover, he must show a wrongful breach.
    2. A rule of - court prescribed that averments of fact in an affidavit of claim not distinctly and specifically denied by the answer, should be taken as admitted and could be read in evidence. An affidavit of claim alleged that the defendant “wrongfully dissolved the partnership.” The defendant replied that for specific reasons he had dissolved it, and the plain tiff was allowed to read his averment, omitting the word “wrongfully.” Held, to be error. To select words from different portions of an affidavit of claim, and put them together so as to make a sentence, and then offer them as a whole, cannot be sustained.
    3. It being shown that the defendant had dissolved the partnership, the defendant justified by evidence that the plaintiff had broken his covenant by not paying in his share of the capital, as provided in the articles.

      Held, that the plaintiff could not be permitted, in rebuttal, to show that before the articles were signed it was agreed that the plaintiff’s capital was to be paid out of moneys to become due to him by defendant out of another transaction.
    4. In such a ease it is competent in estimating the value of the contract, as a measure of damages, to show the actual condition and situation of the business and assets of the firm, together with proof as to' the actual results accomplished in the business before the breach • the true measure being what the interest of the party aggrieved would sell for.
    November 11th 1880.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.'
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 172.
    Covenant by Howard Morton against George Reiter, Jr., executor.
    The following was the affidavit of claim: That on the 18th of August 1877, affiant and said defendant entered into a copartnership, under the firm name of Reiter & Morton, and at the same time executed articles of copartnership under their respective seals, bearing the same date; that the business of the firm was the manufacture of chain and cable and-miscellaneous articles in iron. Said partnership was to continue during the term of the patents under which they were to manufacture, and being for a term of not less than fifteen years from the above-mentioned date, viz., 18th of August 1877. That said firm engaged in business from said date last mentioned, and continued in business as a firm until the 14th of October 1878, when said defendant, without any just cause or reason, and without _ any breach of duty on part of plaintiff to justify the same, wrongfully dissolved said partnership, contrary to his covenants contained in the aforesaid articles of partnership; that plaintiff had given defendant no cause for such action on his part, but had in every way conducted himself in a proper manner, and had complied with the said articles of partnership and his covenants therein contained; that the business of said partnership was a valuable and increasing one ; that by reason of the premises the said plaintiff has sustained great loss and damage on that account, in the sum of $50,000, which he says is, to the best of his knowledge and belief, a fair estimate of the damages so sustained by him, as aforesaid, all of which he deposes to the best of his knowledge and belief.
    The first count of the declaration alleged: “And although the said plaintiff hath well and truly performed and fulfilled all and singular the covenants and agreements in said article mentioned on his part to be done and performed, yet protesting that the said defendant hath not performed or fulfilled anything in the said articles of agreement mentioned on his part and behalf to be done and performed, the said plaintiff, in fact, says that after the making of the 'said articles, and whilst the said plaintiff and the said defendant were carrying on the business of the manufacture of chain, cable and miscellaneous articles in iron, the said defendant heretofore, to wit, on the 4th day of October, A. D. 1878, at Pittsburgh, to wit, at the county aforesaid, dissolved the said partnership and refused,” &c.
    And in the second count: “And protesting that the said defendant hath not performed or fulfilled anything in the said articles of agreement mentioned on his part and behalf to be done and performed, while the said plaintiff hath well and truly performed all and singular the covenants and agreements in said article mentioned on his part to be done and performed, the said plaintiff in fact says that,” &c.
    The defendant pleaded covenants performed, covenants performed absque hoe, payment with leave.
    Reiter filed the following affidavit of defence: “ I have a just and legal defence to the whole of the plaintiff’s claim. I did enter into partnership with the plaintiff, under the firm name of Reiter & Morton, and I faithfully performed all my covenants contained in said agreement and my partnership duties, but the plaintiff violated his covenants as contained in said agreement and failed in his partnership duties, inter alia, in this, that notwithstanding the needs of the business required the plaintiff to pay up his share of the capital, viz., $4000, and he was called upon so to do, yet he paid in of his capital $2000 only, and he diminished the same by drawing out $202.36 ; so that the entire capital paid in by him amounted to on the 14th October 1878 $1797.64 only, and prior to and up to said date the plaintiff neglected and refused to pay in the balanee of his capital. That on or about the 21st August 1878, the plaintiff, in violation of his duties to the firm and in bad faith to the firm, delivered to Wilson, Walker & Co. manufactured chain belonging to the firm of the value of at least $1394.77, and agreed that said parties might take the same at $818.67, and I charge that in said transaction the plaintiff acted in violation of his copartnership duties.
    “ The plaintiff, in violation of article 7 of the co-partnership agreement, intermeddled with the financial business of the firm to its detriment, in one instance at least, to wit, in the case of an account owing the firm from Lindsay & Sterrett, the plaintiff made a collection for the firm of which he made no return, and in other cases he collected accounts due the firm, which, under the articles of copartnership, he had no right to collect, and appropriated the same in part to his private use. Prior to the 14th of October 1878 irreconcilable differences had arisen and existed between plaintiff and myself, which rendered it impossible to carry on the business of the firm.
    “ On the 14th October 1878 I caused to be served on the plaintiff a notice, of which the following is a copy:
    “ To Howard Morton :
    “You are hereby notified that on account of your neglect and refusal to pay in your share of the capital stock, in accordance with our articles of copartnership, and other breaches by you of your partnership duties, I decline any further to continue the copartnership heretofore existing between you and myself under the firm name of Reiter & Morton ; and said partnership is hereby declared to be dissolved. ■ George Reiter.
    “Pittsburgh, Pa., October 12, 1878.
    “I aver that the statements contained in the said notice are true, and that I have good cause for so dissolving said firm. I expect to show upon the trial of this case all and singular the facts herein-before set forth. I deny that said partnership business was a' valuable one, and I also deny that the plaintiff sustained great loss and damage, or any loss and damage, by reason of my dissolving the firm as hereinbefore set forth.”
    Reiter followed the notice contained in the above affidavit of defence by filing a bill in equity praying for a dissolution of the partnership and the appointment of a receiver. After answer upon hearing the court decreed a dissolution, and appointed a receiver under whose direction the affairs of the firm were finally adjusted. Morton then brought this action of covenant to recover damages for the wrongful dissolution of the co-partnership before the time limited in the articles and recovered a judgment for $2000. To this judgment this writ of error was taken, and the various questions raised will be found set forth in the following assignments of error.

      1. The court below, Bailey, A. L. J., erred in their answer to the fourth- point of defendant as follows :
    That' the burden of proof is upon the plaintiff to satisfy the jury by the weight of the evidence, 1st. That he has faithfully kept and performed all the covenants on his part to be kept and performed ; and 2d. That the defendant has, without cause therefor on the plaintiff’s part, neglected to keep and perform his covenants before he can recover in this case; and that if the plaintiff has not satisfied the jury of both these facts their verdict must be for the defendant.
    Ans. “ It is not necessary in the first instance that the plaintiff shall have satisfied you that he has faithfully kept and performed all the covenants of the agreement on his part to be kept and performed ; and second, it is not necessary that the plaintiff shall have satisfied you that the defendant has, without cause therefor on the plaintiff’s part, neglected to keep and perform his covenants before he can recover in this case. But it is necessary that the defendant show you that, without cause on his part, the plaintiff neglected to keep his covenants of the agreement.”
    2. In their answer to the fourth point submitted by the plaintiff as follows: ■
    If the jury believe that the defendant dissolved the partnership without justifiable cause — and the burden of proof is on the defendant to justify — then their verdict may be for the plaintiff.
    Ans. “Affirmed.”
    3. The court erred in their answer to the second point presented by the defendant, which point and answer are as follows :
    If the jury believe from the evidence that the plaintiff, Morton, did not contribute to the capital stock of the partnership of Reiter & Morton his proportionate share, as he agreed to in the partnership article in evidence, ‘ as the needs of the business ’ of said firm required, that was cause sufficient to authorize the defendant, Reiter, to dissolve the partnership, and the plaintiff cannot recover in this action.
    Ans. “ Aflirmed : if you find that plaintiff’s neglect measurably defeated the ends of the partnership.”

      4. The court erred in admitting the offer of the plaintiff of a certain portion of the affidavit of- claim, and in overruling the objections of defendant below thereto, and in permitting to be read to the jury a portion of a sentence from said affidavit. The said action of the court below will appear from the following, viz.:
    “ Plaintiff’s counsel offer in evidence the allegation in the affidavit of claim, and admitted by the affidavit of defence that this partnership was dissolved by the act of George Reiter, the defendant, on October 14th 1878, viz.: When said defendant, without any just-cause or reason, and without any breach of duty on the part of plaintiff to justify the same, wrongfully dissolved said partnership contrary to his covenants contained in the aforesaid articles of partnership.”
    Objected to, first, because there is no such independent allegation in the affidavit of claim, nor is the inference, as offered from the affidavit, to be found therein in such shape that it may be submitted to the jury as an independent instrument of evidence, and secondly as incompetent.
    Objections overruled.
    5. The court erred in its answer to the first point submitted by the defendant as follows:
    That the partnership agreement in evidence is, under the facts in evidence, not only the best, but the sole evidence of the contract between the plaintiff and the defendant; and the evidence of Howard Morton as to an agreement made a week before the said contract of partnership is incompetent to vary the terms thereof, and must be disregarded by the jury altogether.
    Ans. “ In the view I take of the case these two propositions are not inseparable, and I affirm the first clause of the point and refuse the remainder.”
    . 6. The court below erred in its ruling upon the admission of evidence offered by the plaintiff, as appears by the offer, ruling, and evidence as follows:
    “ Howard Morton, the plaintiff, recalled.
    “ Q. The article of agreement between you gentlemen has already been shown you, wherein you agreed to pay $4000 into the capital stock and Mr. Reiter agreed to pay $8000 in. Now, state whether before and at the time that agreement was made anything was said or agreed upon between yourself and Mr. Reiter with reference to where you were to receive the money to pay into the capital stock. And whether or not it was understood and agreed between you that your money for the capital stock was to come out of the money which Reiter was to pay you for the interest you conveyed to him in these patents ?
    “ Objected to.
    “Mr. Watson. — The purpose of the question in connection with other testimony to be offered is to show that the contingency upon which this witness was to contribute a certain amount for the capital stock did not arise, and for the further purpose of showing, in connection with other evidence to be offered, a prevention of the performance of the agreement by the defendant.
    “Objected to. First, because the offer does not tend to prove the purpose for which it is alleged to b.e offered. Secondly, because it is incompetent and irrelevant. And, thirdly, because, if competent or relevant at all, it belongs to the plaintiff’s case in chief and not in rebuttal. Objections overruled.”

      7. The court below erred in its answer to the second point presented by the plaintiff, which point and answer are as follows:
    If the jury believe that, by agreement between Morton k Reiter, Morton was not to pay in after the payment of $2000 the balance of his contribution to the capital stock until after Reiter had paid his, then the failure of Morton to raise enough money to pay the Wilson, Walker k Co. note would not constitute a cause to justify the dissolution.
    Ans. “ That point is affirmed. If that was the agreement between the parties, then the mere failure on the part of Morton to raise money to pay the note to Wilson, Walker k Co. would not be enough to justify a dissolution of the firm.”
    8. The court erred in its answer to the third point submitted by the defendant, which point and answer are as follows :
    If the jury believe from the evidence that Morton surreptitiously and without the knowledge and consent of his co-partner, Reiter, turned over to Wilson, Walker & Co. chain belonging to the firm at prices far below the market rates which at the market rates was more than sufficient to pay any claim Wilson, Walker & Co. had against Reiter & Morton, and turned over at the same time checks which said Morton had no authority to sign, and received for his own use in return from said Wilson, Walker & Co. money belonging to the firm, such conduct on his part was a fraud on his co-partner, Reiter, which justified him in dissolving said firm, and bars the plaintiff’s right to recover in this action.
    Ans. “ We come now to the other question in the case which is covered by the third point of the defendant and the first point of the plaintiff.
    (The court here read the third point of defendant and first point of plaintiff.)
    “You have in these two propositions the antagonistic positions assumed by the respective parties on that question. On the one hand it is maintained that Morton surreptitiously, meaning thereby something more than without the knowledge and consent of his co-partner, made this transfer; that it was made at a price below the market rates; that the excessive amount of chain was taken ; that checks were turned over to Wilson, Walker & Co. which Morton had no authority to sign (which is not a very material matter as far as Wilson, Walker & Co. are concerned), and received for his own use in return from Wilson, Walker k Co. money belonging to the firm ; that such conduct on his part was a fraud on his co-partner, Reiter, which justified him (Reiter) in dissolving the said firm.
    “ If you believe that this was a fraudulent act on the part of Mr. Morton, without any cause or excuse, but coming from his own disposition to misconduct himself in his relations with his partner (which ought to have been relations of confidence and trust), and ■with intent to take an unjust and unfair advantage of Ms partner, Mr. Reiter, by compelling him to advance money when he ought not to have done so ; and there was generally misconduct on his part -without any sufficient cause or occasion, taken in connection with his failure to pay in the money which he ought to have paid on his partnership accounts ; and if you find that ‘ necessities of the business required it,’ and that that fact was known to him, then I would say Mr. Reiter was justified in dissolving this co-partnership ; that is, if the relations of the partners were such that a court in equity ought to have decreed a dissolution.
    “ But you must find these facts in order to meet the necessities of the case as I have suggested them to you.
    “ If, on the other hand, you think that Mr. Morton had reason to and did believe, and the facts warranted him in believing that Mr. Reiter was refusing to conduct the business fairly, was desirous that this note to Wilson, Walker & Co. should go to protest for ulterior purposes of his own, that he meant to default upon his note to Morton for $3000 for such a purpose; that his design and intent was to force Morton out of the firm, and that Morton in self defence, or to meet the action of Mr. Reiter, determined by this means, even at noon-time, surreptitiously to a certain extent, without the knowledge of Mr. Reiter or of his sons, to take this property, carry it away, making the best bargain he honestly could for the firm with Wilson, Walker & Co., in order to have that note lifted; then Mr. Reiter cannot complain, and he would not be justified in dissolving the co-partnership; in other words, you must determine what is the truth in regard to the matter of the transfer of that chain to Wilson, Walker & Co., it is a question whether those are the facts. It is just as vehemently claimed on the part of the defendant that there were no such designs, and that there were other reasons, to wit, that, under the advice of counsel, Reiter defaulted upon his $3000 note to Morton, and also that there was no reasonable ability on the part of the firm of Reiter & Morton, at that time, to meet the note to Wilson, Walker & Go. out of the assets of the firm.
    “ If there were assets of the firm of Reiter & Morton, Mr. Reiter was not justified in refusing to pay the note of the firm. It was bad faith to the firm if he refused to apply the partnership assets to its payment, if there were such assets, which is another fact you will have to ascertain from the evidence.”
    9. In its answer to the first point submitted by the plaintiff as follows:
    If the jury believe that the defendant, knowing the plaintiff had no other means of obtaining money to pay in his balance of the capital stock than out of the notes of defendant given plaintiff on account of the patent,'' and defendant in bad faith to his partner and for the purpose of driving the plaintiff from the firm of Reiter & Morton, notified the plaintiff, on August 17th 1878, that he (Reiter) would not pay his (Reiter’s) note falling due about August 21st 1878, but would let it go to protest, and the defendant also refused to pay or appropriate the firm assets to the payment of the note of Wilson, Walker & Co., then if the plaintiff, in good faith and for the purpose of preventing the firm of Reiter & Morton from being sued, applied the assets of the firm of Reiter & Morton to the payment of the debt of the firm as narrated by Morton and Walker and Wilson such application would not constitute a cause justifying the defendant in dissolving the firm of Reiter & Morton.
    Ans. “ Same as to third point of defendant below. See eighth assignment of error.”
    10. In admitting the'offer of evidence submitted by the plaintiff and in overruling the objections thereto of defendant, which offer and objections are as follows :
    “Plaintiff’s counsel proposes to prove by Howard Morton, the witness on the stand, to be followed by other testimony on the same subject and of the same effect, that on October 14th 1878, the day George Reiter, the defendant, dissolved the partnership of Reiter & Morton, for which 'dissolution this action was brought, that said firm were then engaged in the manufacturing and sale of chain and cable and miscellaneous articles in iron. That their works were in Pittsburgh, Pennsylvania, and had a capacity for turning out from one to two tons per day of chains. To show the actual cost of the manufacture of said chain, and to show its market value, and further to show that it was a staple article in the market, and that the said chain could be and was readily sold in the market. To further show that the said firm were then engaged in building new furnaces and erecting new machinery for the more extensive prosecution of their business. To show what the business of the said firm of Reiter & Morton was and that it was increasing. This as bearing upon the question of damages, and to give the jury the items connected with the business of Reiter & Morton from which they can determine what damages plaintiff has suffered by reason of said dissolution.
    “Defendant’s counsel object to all that portion of the offer following the words ‘Pittsburgh, Pennsylvania.’ 1st. Because the true nature of damages cannot be arrived at as proposed to be shown in the offer. 2d. Because said offer is incompetent and irrelevant; and 3d. Because in any event the offer is premature, the ground work to justify such proof not yet having been laid by any evidence in the case. Objections overruled.”
    11. The court erred in the answer to the third point submitted by the plaintiff as follows :
    The measure of damages in this case is the immediate loss plaintiff suffered by reason of the dissolution-of the firm, and in determining what this loss was they may take into consideration the business in which the firm of Reiter & Morton was engaged, the capacity of their works, the length of time the firm was to continue, the cost of the manufacture of the-articles in which the firm dealt at the- market price at which said articles sold, and whether the manufactured articles were a saleable commodity or otherwise.
    Ans. “ The measure of damages in this case is, as the Supreme Court’ has said, compensation for the contract broken according to its value; the difficulty is in the application of that measure, under the facts, in order to ascertain what the damages are. It is a very difficult matter to ascertain what the value of a contract such as this was because of the various contingencies in business and the unavoidable and unanticipated accidents which pertain to every business. It is difficult to determine how much a business will be worth next year or the year following, and so on indefinitely, as far as the necessities of the case may require, but it is your duty to try to ascertain, if you come to the conclusion, under the charge of the court and the evidence, that the plaintiff is entitled to a verdict or to more than nominal damages, how much he has been damaged. One mode by which you can ascertain the value of this business is indicated in the point, that is, you have a right to consider (in estimating the value of it, if it had any value,) the nature of the business,. the character of the works, their capacity and fitness for the manufacture of chain, the length of time the firm was to continue, and then take into consideration, if it has been established to your satisfaction, what it would cost to manufacture chain, and the price at which it could be sold, and determine whether the business could be conducted at a profit or a loss. The patents under which the chain was to be manufactured were measurably untried, and needed amendment and alteration in order to make them as practicable as was the intent of the person who invented them. Take into account those expenses and every other expense as well as the mere cost of the labor, and endeavor to determine, as far as you can (if you conclude the plaintiff is entitled to damages for the loss of this business), whether it would have been profitable or unprofitable, and if profitable, to what extent, and what would be the loss to the plaintiff. By way of caution I may sáy that those profits, which are to be taken into account, are such as the testimony has satisfactorily shown, were gained, or to be gained in this business, not prospective, not possible profits, but what, from the evidence, as reasonable men you -would draw as the probable result of the conduct of the business as you have heard it- detailed here.”
    13. The court erred in its ruling upon defendant’s offer of evidence as follows: Defendant being on the stand his counsel propounds the following:
    “ Q. State whether not since Mr. Morton’s retirement from the firm you have been able to make any profit out of the chain business conducted at the same place.”
    Objected to as irrelevant and incompetent.
    Objection sustained.

      Hampton & Dalzell, for plaintiff in error.
    Where covenants are mutual and dependent, one party cannot call upon the other to perform his part of the contract without having actually performed or tendered performance of his own: Cassel v. Cooke, 8 S. & R. 268; Grace v. Regal, 11 Id. 351; Withers v. Atkinson, 1 Watts 236.
    To this narr. the defendant pleaded “ covenants performed absque hoo.” The authorities are uniform to the effect that under this plea the burden of showing performance by the plaintiff of his own covenants was upon him: Zents v. Legnard, 20 P. F. Smith 192; Wilkinson v. Turnpike Co., 6 Barr 398; Martin v. Hammon, 8 Id. 270; Turnpike Co. v. McCullough, 1 Casey 303.
    So far as the burden of proof is concerned the court actually held that any dissolution was unlawful and called upon the defendant for a justification.
    An agreement under seal cannot be contradicted by a parol agreement of an earlier date not mentioned or referred to when the sealed agreement was executed. We-were entitled to an affirmance of our third point. The court erred in its rulings as to the measure of damages. The jury were plainly told that in considering the value of the plaintiff’s contract they might take into consideration future profits considering the length of time the firm was to continue. This w'as clearly indefensible. Let it be conceded that profits may be considered in a case of this kind — for there are cases that so rule — they must not be probable but certain. We have not been able to find any case that abandons this safe rule. The distinction is well drawn, in Van Ness v. Fisher, 5 Lansing 240, commenting on Bagley v. Smith, 10 N. Y. 489.

      D. T. Watson and Knox Reed, for defendant in error.
    Our rule of court provides that “ material averments of facts as are not directly and specifically traversed and denied by the answer shall be taken as admitted.” The affidavit of claim alleged that the defendant had wrongfully dissolved the partnership on the 14th day of October 1878. The affidavit of defence did not “specifically traverse” this but admitting the dissolution, proceeded to justify it. Undoubtedly then in the affidavit of claim and defence taken together, the plaintiff did allege and the defendant did admit the dissolution of the firm. The averment of facts in defendant’s affidavit was a plea in confession and avoidance. Such has been the uniform construction of the rule of our court. We were not bound on our case in chief to prove that we had performed.
    The averment in the narr. of performance is in the usual form, just as it is usual in assumpsit to aver that the defendant “ craftily and subtly intending to deceive and defraud the plaintiff” did not keep his undertaking, and that though frequently requested he has not paid. Yet no one supposes that such an averment compels the plaintiff to prove it. It is believed to be universally held that mere surplusage never vitiates. If the performance be unnecessarily averred it need not be proved: 1 Saund. 235; Gibbs v. Cannon, 9 S. & R. 198. Now the rule is, that when a covenant goes to only part of • the consideration, and a breach may be remedied by action, then it is independent, and not a condition precedent: Boon v. Eyre, 1 H. Black. 273; Bream v. Marsh, 4 Leigh 23; 2 Pars. Con. 531, note; Obermeyer v. Nichols, 6 Binn. 159; Lewis v. Weldon, 3 Rand. 71; McCrelish v. Churchman, 4 Rawle 26. The courts incline to treat covenants as independent, rather than dependent: McShiffory v. Sharon, 1 Phila. R. 496. There was no objection made to the offer to prove the agreement with Reiter as to contribution of cash capital, on the ground that’it contradicted the written agreement. That the profits to be gained in the prosecution of the business were a proper element to be taken into consideration in fixing the value of the plaintiff’s interest cannot be disputed. If the profits are such as wo-uld have accrued and grown out of the contract itself as the direct and immediate results of its fulfilment, then they would form a just and proper item of damages to be recovered against the delinquent party upon a breach of that agreement. These are part and parcel of the contract itself, and must have been in the contemplation of the parties when the agreement was entered into: Fox v. Harding, 7 Cush. 516; Hoy v. Gronoble, 10 Casey 10; Masterton v. Mayor of Brooklyn, 7 Hill 61; Fessler v. Love, 12 Wright 407; Watterson v. A. V. Railroad Co., 24 P. F. Smith 217.
   Mr. Justice Green

delivered the opinion of the court, November 22d 1880.

We are of opinion that several of the assignments of error are sustained, and upon them this case must be reversed. The action was covenant brought by one of two partners upon articles of partnership to recover damages for the wrongful dissolution of the partnership by the defendant. The plea was covenants performed absque hoe. In answer to the defendant’s fourth point the court charged the jury that it was not necessary, in the first instance, for the plaintiff to prove performance of all the covenants on his part to be performed; and that it was not necessary that the plaintiff should have satisfied the jury that the defendant, without cause, failed to perform his covenants. On the contrary, the court charged that it was necessary for the defendant to prove that, without cause on his part, the plaintiff neglected to keep his covenants. In other words, although the very cause of action was not the mere dissolution, but the wrongful dissolution of the partnership by the defendant, the plaintiff was not required to prove it, but the burden was on the defendant to prove a rightful dissolution. In this we think there was error. If a partner dissolves the contract for good cause he has a lawful right to do so. The technical breach is no breach at all. To show a breach which entitles the plaintiff to recover he must show a wrongful breach. It is absolutely necessary to allege a wrongful breach in his narr., and that was done in this case, not only in the narr., but also in the affidavit of claim. Being necessary to aver it, it was also necessary to prove it, unless the defendant by his plea admitted the cause of action. But he did not do this. Ilis plea directly put in issue the plaintiff’s performance. It is a very familiar rule, often held by this court, that the plea of covenants performed absque hoe puts the plaintiff to proof of performance: Martin v. Hammon, 8 Barr 270; Wilkinson v. Turnpike Co., 6 Id. 398; Turnpike Co. v. McCullough, 1 Casey 303; Zents v. Legnard, 20 P. F. Smith 192. The court having held that the burden was on the defendant, and not on the plaintiff' in the first instance, in their answers to the defendant’s fourth point and the plaintiff’s fourth point, were in error as complained of in the first and second assignments of error, and these assignments are therefore sustained. Third error. We think the dedefendant was entitled to an unqualified answer in the affirmative to his second point, though perhaps we would not reverse for that reason alone. Fourth error. The plaintiff offered and was permitted to read in evidence detached portions of an entire sentence contained in his own affidavit of claim, thus: '“That said firm engaged in the business from said date last mentioned and continued in business as a firm until the 14th day of October 1878, when said defendant * * * dissolved said partnership.” In point of fact there is no such sentence in the affidavit of claim, nevertheless the court permitted it to be read just as if it were-there and in that exact form. In reality, in the blank indicated by the stars above, the following words occur in the affidavit of claim, “ without any just cause or reason, and without any breach of duty on part of plaintiff to justify the same, wrongfully.” Now the affidavit of defence contains no single and independent admission that the firm was dissolved by the defendant’s act on October 14th 1878. The affidavit of defence vehemently denies that there was any wrongful or causeless dissolution of' the firm, but on the contrary asserts that the plaintiff violated his covenants in particulars which are specified, and thus compelled a dissolution. Now the plaintiff, by getting in evidence what purported to be a bare admission of dissolution by the act of the defendant, was enabled to make out a technical breach of the articles of partnership without giving the affidavit of defence or any part of it in evidence, withr out calling the defendant to prove it, and without putting himself on the stand as a witness to prove it. Of course if there had been a distinct and independent assertion of dissolution by the act of the defendant in the affidavit of claim, and a corresponding distinct and independent admission of such dissolution in the affidavit of defence, the defendant would have been obliged to submit to these consequences. But as we have already shown there was no such assertion on the one hand nor admission on the other. To pick out words from different portions of the affidavit of claim and put them together, so as-to make a sentence and then offer them as a whole, is certainly not warranted by any precedent or any principle, and we cannot sanction it. The fourth assignment of error is therefore sustained. Fifth, sixth and seventh errors. The sixth article of the partnership agreement provided that the capital of the firm should be $12,000, to be paid in pro rata, as the need of the business should require. Of .this sum Reiter was to furnish $8000 and Morton $4000. According to this, whenever payments of capital were required to be paid in, each partner was to contribute his proportionate share of the whole amount. Such was the written agreement arrived at after much preliminary discussion. On the .trial the plaintiff offered and was permitted, under objection and exception, to prove a parol agreement made several days before the -written agreement was executed, to the effect that if he (Morton) would consent to make the capital stock $12,000 instead of $6000, he (Reiter) would first contribute his share of the capital stock to the full amount before calling upon Morton for anything in excess of the $2000 which he agreed to pay in at the commencement. Without doubt this was a material change in the terms of the written agreement. There was no allegation or proof that it was omitted to be inserted in the written agreement by fraud or mistake, and we are clearly of opinion that it was error to admit'the testimony. After it was admitted the court gave it effect in the answers to the first point of the defendant and the second point of the plaintiff, and allowed the jury to find a verdict founded upon their belief in the testimony as to the existence of the parol agreement. Now the defendant alleged as one of the-causes justifying him in dissolving the partnership that, in an emergency when additional capital was required to be paid in, he called upon Morton to pay in his proportion of the additional sum required, but that Morton refused to do it, and in consequence of that, certain maturing paper of the firm went to protest. If the parol agreement was to control the rights and duties of the partners, Morton was justified in his refusal, and Reiter was denied the benefit of that refusal as a justifying cause of his act of dissolution. This subject-matter therefore became material to the determination of the issue on trial, and it was allowed by the court to have that effect. In this also there was error. The written agreement was the law of the parties, and could not.be altered, changed or modified in this way. The case is so clear a violation of the rule against permitting evidence of a previous parol agreement to change the terms of a subsequent written agreement between the parties, that it is unnecessary to cite authorities or engage in any extended reasoning upon the subject. The defendant’s first point should have been affirmed without qualification, and the plaintiff’s second point should have been refused. The fifth, sixth and seventh assignments of error are sustained. Eighth error. We think the defendant’s third point should have been affirmed without qualification, but it was substantially affirmed, and we do not see material error in the additional remarks and illustrations presented in the charge. For the same reason we should not be inclined to reverse for anything contained in the charge in answer to the plaintiff’s first point and complained of in the ninth assignment of error. We think the tenth, assignment is not sustained. It was competent, in estimating the value of the contract as the measure of damages, to show the actual condition and situation of the business and assets of the firm. Without such testimony it would be difficult, perhaps impossible, for the jury to arrive at any intelligent conclusion as to what damage the plaintiff sustained by the alleged causeless dissolution of the partnership by the defendant. Eleventh error. The answer of the court to the plaintiff’s third point as to the measure of dam- ■ ages was in the main correct. But the court went further than the point, and practically gave the jury permission to consider what would be the probable profits of the business if carried on in the future. True they sought to limit the jury as to the manner and extent to which they should allow these possible future profits to influence their present estimate of the value of the contract, but still the door was thrown open and the jury were permitted to wander into the region of speculative and conjectural profits of a manufacturing business. It would be highly dangerous to allow such a latitude of inquiry in such a case. It is absolutely impossible for any human being to say whether a business of this character will be or can be a profitable business during a period of fifteen years. The contingencies which affect that question are so numerous and so various in their character, they depend upon so many and such different influences, causes and events, that no degree of human judgment or foresight can in the least degree predetermine them or their results. A financial panic, which is but a single agency out of many, may convert a prosperous and profitable business into a source of disaster and ruin. So, too, a comparison of the cost of manufacture with the selling price of the article is utterly unreliable, for the simple reason that the elements of the computation on both sides are subject to constant fluctuations. A manufacturing business may be very prosperous one year, and quite ruinous the next, and hence all human estimate as to what will be its condition during a future period of fifteen years can only be speculative and conjectural. True the court did not give so unlimited a license to the jury in this case, hut from a portion of the language used the jury might well have so inferred. In this there was error, and to this extent the eleventh assignment is sustained. We apprehend that in such an action as this the measure of damages would be the actual money value of the plaintiff’s interest in the contract of partnership at the time of the breach. What would the interest sell for to a person willing to buy and having the means to buy ? As illustrating this question the actual state and condition of the property, business and assets of the firm at the time, together with proof as to actual results accomplished, whether of profit or loss or both, in the past, would be competent evidence. Beyond this, at least so far as conjectural profits in the future are concerned, it would not be safe to go. In these remarks we do not mean in any way .to change or qualify the existing state of the law as to proof of profits in particular cases and in single transactions. There are many such when proof of the profit which might have been realized had there been no breach, is eminently proper. .What we decide now is the rule for this particular class of cases. We think it was competent to make the proof offered and rejected in the thirteenth assignment, because it was applying the test of actual experience in the past to the present value of the interest, but as there really was no evidence in the case of future profits, we would not reverse' for that reason.

Judgment reversed, and a venire de novo awarded


author: Per Curiam.

text:
    Gray’s Appeal.
    1. The legal discretion of the Orphans’ Court in the appointment of guardians of the persons and estates of minors is not subject to review by a court of error.
    2. McCann’s Appeal, 13 Wright 304, followed.
    November 10th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1880, No. 289.
    Appeal of Phineas T. Gray from the decree of the court refusing his .petition to make choice of a new guardian.
    On thq 29th of November 1873, the appellant by his next friend W. M. Gray, presented a petition to the Orphans’ Court setting forth that he was the minor child of Phineas T. Gray, deceased, under the age of fourteen years and had no guardian; that he was entitled to real estate of no annual value, and to personal estate amounting to $2000, and praying the court to appoint some fit person guardian of his person and estate; and thereupon said court appointed Joseph H. Gray guardian of said minor, who gave bondi and entered upon the discharge of his duties as guardian of said minor.
    On the l8th of September 1880, the said Phineas T. Gray presented his petition to said Orphans’ Court, setting forth the foregoing facts, and that he was over the age of fourteen years, to wit, of the age of fifteen years on the 10th of March 1880, and praying the court to allow him to make choice of some fit person as guardian of his person and estate, instead of the said Joseph H. Gray, heretofore appointed by said court.
    No cause was assigned as a reason for the proposed change of guardian. The court awarded a citation to Joseph PI. Gray, .the guardian, to show cause why the prayer of the petitioner should not be granted, and the guardian filed answer, wherein the court was asked to refuse the application of the petitioner on the ground that he had been unduly influenced by his relatives. A general replication having been filed, the 2d of October 1880, was fixed for a hearing in the case before the court. The parties appeared, and the counsel for respondent called the respondent to prove facts alleged in his answer when he was stopped by the court; the court ruling that the burden of proof was upon the petitioner to show cause for a change of guardian. Whereupon the petitioner having refused to show cause (not having alleged any in his petition), the court, Hawkins, P. J., made a final decree refusing the application, and delivering the following opinion:
    “When the legislature gave the ‘ Orphans’ Court of each county * * * the care of the persons of minors resident within such county, and of'their estates, and * * * power to admit such minors when and as often as there shall be occasion to make choice of guardians,’ it gave in plain terms discretionary power to that court in the appointment of guardians: McCann’s Appeal, 13 Wright 304. The law presupposed the immaturity of minors and the consequent necessity of ‘ care ’ over their persons and estates. Is there ‘ occasion ’ in the present case to admit the petitioner to make choice of a new guardian in place of the old ?
    “ He already' has an unexceptionable guardian. A change of guardian will involve the filing and auditing the account of the old guardian, and the expense and cost incidental thereto, which must be borne by the minor’s estate. It may, and probably will, become necessary to call in the present investment, and a change of policy will follow in the administration of the trust; this will cause delay and consequent loss to the minor’s estate. These are some obvious objections to change. On the other hand no special advantages are adduced* for making it. The application is based entirely on an asserted ‘naked right of choice.’ If such right exists why come into the Orphans’ Court at all ? If petitioner is competent to make choice without the supervision of this court then he does not need its ‘ care,’ he is competent to transact his own business, and there is no occasion for a guardian ; but if; as the legislature has asserted, he needs its ‘ care,’ he needs its supervision in the selection of a guardian. There can be no ‘ occasion ’ to malte choice of another guardian, where no advantages can be attained. It follows that the circumstances of this case do not justify a change of guardians, and the application tobe admitted to ‘make choice' must be refused.”
    From this decree this appeal was taken.

      J. E. Kuhn, for appellant.
    Under the fifth section of the Act of 29th March 1882, minors not too young, that is, over fourteen years, who have no' guardians, have a right to choose their own guardians, under the supervision of the oourt. Has not a minor then, who has had a guardian appointed for him by the court when he was too young to choose, the same right of choice upon his arrival at the age of fourteen years ? If not, how has he lost his right of choice'? In no way, unless by the action-of the court in appointing a guardian for him when he was too young to choose one for himself. This, we submit, could not prejudice his right. In support of the minor’s right, upon attaining the age of fourteen, to supersede the guardian appointed by the court, by the choice of another, we refer to Arthur’s Appeal, 1 Grant Cas. 55, which was a proceeding similar to the present one, in which Judge Lewis, in delivering the opinion of the court, shows that, at common law the minor, upon attaining the age of fourteen, had a right to choose his guardian. See also, Lee’s Appeal, 3 Casey 229; Lewry’s Estate, 5 W. N. C. 475. McCann’s Appeal, 13 Wright 304, does not overrule Arthur’s and Lee’s Appeals, supra.

      Robb & McClung, for appellee.
    In the cases of Arthur’s Appeal and Lee’s Appeal, cited by appellant, the Orphans’ Court had, in the exercise of its discretion, determined that there was occasion to admit the minor to make choice, and of course this court would not review that discretion in those cases where it determined the question in one way, any more than it will in this case, when it determined it the other way. We do not see any necessary conflict between McCann’s Appeal and Lee’s and Arthur’s Appeals; but whether there is or not, McCann’s Appeal decides that the court has a larger discretion than simply to determine as to the character and fitness of the party chosen. In that case no ground of refusal appeared upon the record, and Woodward, C. J., remarks that even if the Supreme Court thought the Orphans’ Court wrong in its judgment upon the alleged grounds, yet the act vested a legal discretion in said court and its exercise could not be reviewed.
   The judgment of the Supreme Court was entered November 22d 1880,

Per Curiam.

As we understand the decision in McCann’s Appeal, 13 Wright 304, it is very correctly stated in the syllabus : “ The legal discretion of the Orphans’ Court in the appointment of guardianh of the persons and estate of minors is not subject to review by a court of error.” It follows that we ought not to intervene even if we thought that the discretion of the court below was not properly exercised in this case.

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


text:
    Keystone Bridge Company versus Newberry. Same versus Kennedy.
    1. To constitute fellow servants the employees need not at the same time be engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work and performing duties and services for the same general purpose. The rule is the same, although the one injured may be inferior in grade, and is subject to the direction and control of the superior whose act caused the injury, provided they are both co-operating to effect the same common object.
    2. If a gang-boss has no general power of control, but acts as foreman of workmen engaged and furnished to him by the superintendent of a company, whose orders he is bound to obey, he is not such a representative of the company as that it would be liable for his acts of negligence.
    3. Where there is no evidence of the knowledge of the company of the want of capacity in such a gang-boss, in an action by a servant against the company, it is error to submit the question of negligence to the jury.
    4. Lehigh Valley Coal Co. v. Jones, 5 Norris 432, and Delaware and Hudson Canal Co. v. Carroll', 8 Id. 374, followed.
    November llth 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 186 and 187.
    These were actions on the case brought by Sidney Newberry and Sanford M. Kennedy, against the Keystone Bridge Company, to recover damages for injuries resulting from the alleged negligence of the defendant. The material fficts will be found stated in the opinion of this court.
    The trial was before Kirkpatrick, A. L. J.
    The verdict in the Newberry case was for plaintiff for $2000, and in the Kennedy case for $4000. After judgment, defendant took this writ and alleged that the court below erred: 1. In their answer to the first point of defendant.
    The law' presumes the master did his duty, and to entitle plaintiffs to recover, the burden is on them to show : (1.) Negligence on the part of the defendant company or its chief reprcsentative. (2.) That the injury complained of was the result of such neglect. Ans. Affirmed, saving and excepting the term ‘ chief’ representative. This, we are of the opinion, is too broad. The expression is calculated to mislead, if affirmed without qualification. The party guilty of negligence, however, must be other than the fellow workman or servant. He must, for the time and occasion, represent and stand for the company; be their representative; having the entire and exclusive management of the work, otherwise the company would not be responsible for his negligence and misfeasance. If the jury, however, find from the evidence that he was their representative, even without being one of their chief representatives, then the company would be liable.”
    2. In their answer to the second point of defendant.
    That the evidence fails to disclose either of said propositions, and the verdict must therefore be for the defendant. Ans. “ Refused. We leave the jury to discover and determine from all the evidence in the case, further instructing them that the burden of establishing both propositions is upon the plaintiffs, all the presumptions being in favor of the defendant. These presumptions the plaintiff must overcome by evidence satisfactory to the jury.”
    3. In their answer to the third point of defendant.
    Under the evidence in the case, William Wymond was not such an officer in defendant company for whose act of negligence the company can be held responsible. Ans. “ Refused. We leave this to the jury from all the evidence, having, in our general instructions, and in answer to the plaintiff’s second and defendants third points, shown what sort of a representative of the company he must be found by the jury to be.”
    4. In their answer to the fourth point of the defendant.
    There is no evidence of Wymond’s incompetency or unskilfulness, and no evidence of any knowledge on the part of the company of any incompetency or unskilfulness of Wymond, and the verdict must therefore be for the defendant. Ans. “ Refused. This also we leave the jury to discover and determine.”
    5. In their answer to the fifth point of defendant.
    That even though the jury should find that Wymond was unskilful or incompetent, then the verdict should be for the defendant, because there is no evidence that the company knew of such unskilfulness or incompetency. “ Refused. Even if the defendant company was guilty of negligence, yet if the plaintiffs, by any act of negligence, aided or assisted in bringing about the accident, they cannot recover.”

      S. Schoyer and West MeMurray, for plaintiff in error.
    By discriminating against the phrase “ chief representative,” the court admits, under its definition, a large class of persons for whom employers are liable, who have been held by this court and other courts as fellow employees: Caldwell v. Brown, 3 P. F. Smith 456; Gilman v. The Eastern Railroad Corporation, 10 Allen 233; Wright v. N. Y. C. Railroad Co., 25 N. Y. 565; Morgan v. The Vale of Neath Railway Co., L. J. 35 Q. B. 23; Weger. v. P. Railroad Co., 5 P. F. Smith 463; Lehigh Valley Coal Co. v. Jones, 5 Norris 433 ; Delaware & Hudson Canal Co. v. Carroll, 8 Id. 374.
    Wymond was clothed with no powers of engaging and discharging workmen and laborers at pleasure. He was nowhere designated as the agent of the company. He had no general power of control. His duties were- confined to special matters. That he happened for the time being to be the boss of a gang of men, and thereby differing from the laborers, those who were injured, does not matter. He was in an inferior position : Wilson v. Merry, L. R., 1 Scotch Appeals 1597 ; Hand v. Vermont & Canada Railroad Co., 32 Vt. 473; Howells et al. v. The Landore Siemens Steel Co., L. R., 10 Q. B. 62.
    These cases differ in every aspect of the case from Patterson v. Pittsburgh & Connellsville Railroad Co., 26 P. F. Smith 392. referred to by the learned judge below in his charge. It was not machinery furnished by the company for the use of its workmen, but a temporary contrivance for a temporary purpose, made by a fellow workman in the line of his duty, of such material and strength as he thought sufficient, without the knowledge or dictation of his superior, and without complaint made to that superior, Wymond having no general power or control, no power to hire or discharge, and whose grade was but slightly higher than that of the men in his gang, and used by the workmen of their own volition, without direction and without control as to what and how many planks they should use.

      Thos. M. Marshall, for defendant in error.
    Mullan v. Steamship Co., 28 P. F. Smith 25, rules this case.
    The fact whether Wymond did or did not employ the men is of no importance. The company voluntarily furnished the men to work under the orders of an incompetent master; to receive and obey the orders of an incompetent master. As said by this court in regard to an employee: “ His primary duty is obedience, and if, in the discharge of that duty he is damaged, it is but meet he should be recompensed. ” Patterson v. Railroad Co., 26 P. F. Smith 393. This corporation could only act through its agents. It chooses to employ Wymond for the performance óf a special work; it details men- from their ordinary employment in the works; their duty is obedience in obeying an incompetent agent, the corporation cannot claim that they were fellow servants. The company having undertaken to perform a work, they were under obligation to furnish a fit person as master to the men: a person who understood the business committed to his government. They were bound to furnish all suitable instrumentalities to the performance of the work whether foreman, men or material; failing in either duty, it was negligence.
   Mr. Justice Green

delivered the opinion of the court, January 3d 1881.

Practically these cases, as they come before us, turn upon two questions: 1. Was Wymond such an officer of the defendant corporation as that it would be responsible for his act of negligence ? And 2. Is there any evidence of Wymond’s incompetency and unskilfulness, and that the company had knowledge of it ? The learned judge of the court below left both these questions to the jury in his general charge and in his answers to the defendants’ third and fourth points. It is claimed that he was in error in both. Taking the questions in their order, we will consider first the subject of the relation of Wymond to the company on the one hand, and to the plaintiffs on the other. The defendant was a corporation very largely engaged in the business of constructing and erecting iron bridges. They owned and used extensive works and had erected an additional building about four hundred feet in length and fifty feet in width. The walls were brick, and at the time of the accident they were already raised to their full height, and upon them an iron roof was being placed for purposes of ventilation. The plaintiffs were laboring men, who were working under the immediate direction of one William Wymond. An apparatus called a trussed plank was being used in putting on the roof, and while the plaintiffs and some other workmen were engaged carrying an iron rafter over this plank it gave way and they were precipitated to the ground, killing one man and injuring several, among them the plaintiffs. A large amount of testimony was taken, but so far as the principal questions are concerned it was not at all contradictory. In regard to the position of Wymond the undisputed testimony was to the following effect: Colonel Piper was the general manager. He had supervision over the whole business of the company, employed and discharged the men and gave general directions. His orders had to be obeyed by all except the president. Next to him in authority was Mr. Sheffler, the assistant manager, whose duties were the same as Colonel Piper’s, he giving attention to the details and supervising the whole business in Colonel Piper’s absence. The next in authority was William Robinson. He was. examined by the plaintiffs and testified that he was the general foreman of the riveting and the laborers and was under the control of Piper and Sheffler. He also said there were other foremen under him. It was he who detailed men to do the various portions of work, and directed what was to be done. Both the plaintiffs were engaged by Robinson, and were sent by him to Wymond to assist in putting on the iron roof. Wymond had charge of the men who were doing this particular work. The immediate orders to the men engaged in this work came from Wymond. Robinson testified, “ Mr. Wymond had control of the men as soon as I gave them to him;” and again, “I was instructed to furnish Mr. Wymond with men by Mr. Sheffler.” Wymond’s duties are thus described : “I went on various kinds of work, moving machinery, repairing machinery, general repair work; sometimes he (Robinson) would give me three or four men to handle, and at other times only two; that was in the outside shops, but sometimes I would be ordered to go out and take a gang of men and put up a roof, or building or bridges, as the case might be.” Q. “You were in charge of the work of the erection of ventilators on the new building of which this is the model?” A. “Well, I suppose you might term it in charge ; I was ordered to do that work.” Q. “ State what your position was.” A. “ I don’t know that I held any commission position ; I was put there by Mr.- Robinson, as near as I can remember.” Q. “To do wdiat?” A. “To raise these trusses and to put up this building; and as for the men he was to furnish me what men I wanted.” Q. “Did you employ the men.” A. “No, sir.” Q. “Did you discharge the men?” A. “No, sir.” * * * Q. “ Did you employ Mr. Kennedy or Mr. Newberry ?” A. “ No, sir.” Q. “ How did they come to be under your control ?” A. “ I suppose Mr. Robinson sent them to' me ; he sent all the men that worked for me; they would come there and tell me that Mr. Robinson told them that he wanted them to work there.” Both Kennedy and Newberry testified that they were employed by Robinson and sent by him to Wymond to work under his orders. Hurlston, a witness for defendant, testified that he was a foreman; had some men under him; was a gang boss; that R.obinson had general charge of the works; that Piper was over Robinson, and was constantly going through the works, generally twice a day, giving orders and directions; that Wymond had charge of the erection of the structure, and was boss, and that Robinson was Wymond’s boss. There was no contradiction of this testimony, and it establishes, in our opinion, that Wymond was in no manner the general representative of the company or clothed with its powers. He simply had charge of a gang of men, of varying numbers, neither employed nor discharged by himself, but furnished to him by another who was his superior, and whose orders he was required to obey. Wymond, while he had charge of the work of putting up the ventilator, was himself a workman and worked with the other men. It was testified by Wymond, Watkins and Krebeler that they three made the trussed plank which gave way and caused the accident. It is quite clear to us that Wymond and the men of whom he had charge were engaged in one common pursuit, seeking to accomplish one common object, and that all of them were subject to the orders of another, who was their common superior. In these circumstances we think this case is ruled by the cases of Lehigh Valley Coal Co. v. Jones, 5 Norris 433, and Delaware & Hudson Canal Co. v. Carroll, 8 Id. 374. In the former of these cases Mr. Justice Mercuu, in delivering the opinion of the court, said: “ Who are fellow servants in contemplation of law ? To constitute such they need not at the same time be engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purpose. The rule is the same, although the one injured may be inferior in grade and is subject to the control and direction of the superior whose act caused the injury, provided they are both co-operating to effect the same common object.” Again, “Some of the employees were superior in the grade of their employment to Alexander Jones, others were inferior. Whether superior or inferior, they, as well as he, were all under one common superintendent; in his hands and in his alone was the entire charge of the business placed by the company. His negligence might be negligence of the company.” In the case of Delaware & Hudson Canal Co. v. Carroll, supra, Mr. Justice Paxson, in delivering the opinion of the court, said: “ There is no room for the allegation that a mining boss, under the Mine Ventilation Act of 1870, is an agent of the mine owner or a co-employee. He is clothed with no power of engaging and discharging miners and laborers at pleasure. He is merely a fellow se’rvant with the miner. * * * He has no general power of control. His duties are confined tó special matters. That they are different from those of others of his fellow co-laborers, or even that they are of a higher grade, does not matter.”

In the case of Caldwell v. Brown, 3 P. F. Smith 456, in which it was held that an engineer was a fellow employee for whose acts the employers were not liable, Judge Read, in the course of the opinion, quotes Gilman v. The Eastern Railroad Corp., 10 Allen 233, in which it was held that, “In case of. an injury to one servant by the negligence of another, it is immaterial whether he who causes and he who sustains the injury are not engaged in the same or similar labor or in positions of equal grade or authority. If they are acting together under one master in carrying out a common object, they are fellow servants.” See also, Wright v. N. Y. Cent. Railroad Co., 25 N. Y. 565; Morgan v. The Vale of Neath Railway Co., L. J., 35 Q. B. 23; Weger v. Pennsylvania Railroad Co., 5 P. F. Smith 463.

We are clearly of opinion that Wymond, upon the undisputed 'testimony in the case, was not such a representative of the defendant as that they would be liable for his acts of negligence. A further consideration of this branch of the case leads us to the same result. The injuries of the plaintiffs, it is claimed, were occasioned by the breaking or giving away of a' defective apparatus. Now the apparatus in question was not furnished by the company at all. It was made by Wymond and two others of the workmen, and if it was defective it was the result of the negligence of three fellow workmen of the plaintiffs. No superior officer of the company gave orders that the particular materials used should be selected, or that the particular contrivance itself should be constructed. The workmen made such • an apparatus as they deemed sufficient. If it proved insufficient it was an error of judgment on their part for which we can see no ground of liability as against the defendant for the injuries of the plaintiffs. • It is quite uncertain under the testimony whether the accident resulted from overloading the truss-plank, or from a defect in the iron rod which sustained it. No testimony was given as to whether there was a flaw in the iron, and it is not at all clear that the rod was too weak to sustain all the reasonable weight that should have been put upon it.

.On the second question raised on the trial, to wit, whether the defendant employed Wymond knowing, or having reasonable cause to know, that he was an incapable and unskilful person, not fit to be put in charge of such work, we can find no testimony sustaining either allegation. The learned counsel for defendant in error alleges that Wymond was incompetent, but he does not refer us to any testimony in support of that allegation. He does indeed contend that proof of Wymond’s unfitness is found in his own testimony, but a careful examination of that and other testimony proves quite the contrary. He testifies to a large experience in the business of building iron bridges and bridges of iron and wood in combination, and he was engaged upon some of the largest and most important bridges in the country. He could not conduct that kind of work without acquiring much experience in the resisting powers of wood and iron when subjected to heavy pressure. There was actually no affirmative testimony of any want of skill or knowledge upon these subjects, and not a scrap of evidence that the company had the slightest knowledge of any want of capacity on his part to perform the work assigned to him. In the absence of any testimony on this subject we think the learned judge of the court below was in error in submitting the question to the jury. We think the third, fourth and fifth assignments of error are sustained, and on these the

Judgments are reversed, and writs of venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Bailey’s Appeal.
    1. Certain parties fraudulently represented that the entire stock and assets of a corporation belonged to them, and they thereby procured the decree of a court dissolving said corporation and acquired possession of its assets. Held, that they were liable in equity to be decreed trustees ex maleficio as Tespeets bona fide stockholders.
    2. When a bill in equity will be held to be sufficient upon demurrer.
    November 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 217. In Equity.
    Bill in equity filed by Madison Bailey, trustee of the Central Bank of Pittsburgh, against Andrew Lyons and Jared M. Brush and the Citizens’ Oil Refining Company.
    The material averments of the bill will, be found in the opinion of this eourt. The defendants demurred to the bill, and the court entered judgment on the demurrer for defendants. Plaintiff then took this appeal.

      D. T. Watson and A. M. Brown, for appellant.
    That a decree obtained by fraud and resulting in injury, may be impeached is undoubted; it may be done by original bill without the leave of the court: 1 P. Wms. 736; 2 Id. 78; Marr’s Appeal, 28 P. F. Smith 66-69 ; Johnson’s Appeal, 9 Barr 416. Distinct and specific acts of fraud, committed by the appellees, in procuring the decree dissolving the Citizens’ Oil Refining Company, and in appropriating and distributing the assets of the corporation to the individual use of Lyons and Brush, are averred in the bill and confessed by the demurrer.

      F. M. Magee and Hampton & Dalzell, for appellees.
    The solemn judgment of a court having jurisdiction, regularly entered, cannot be impeached by a simple allegation of fraud. The attacking party must set out “ the circumstances of fraud on which it is impeached:” Daniels Ch. Pr., supra. It is not sufficient to make the charge of fraud in general terms, but it should be direct, and state particular acts of fraud: Bright Eq. Juris., sect. 57.
    The real owner of the stock in question (according to plaintiff’s bill) on December 11th 1875, was Walter E. Hague, assignee in bankruptcy of James Bown. There is no allegation that a transfer was ever.made to him on the books of the Citizens’ Oil Refining Company. A person holding a certificate of stock, but whose name does not stand on the books, is not a stockholder: Heath v. Erie Railway Company, 8 Blatch. 848; Brown v. Adams, 5 Bissel 181. Registration of shareholders is intended for the benefit of the company as well as the stockholders, and hence, as between the transferree and the company, unless his own transfer is made upon the books of the company he is not a stockholder. The mere fact that one owns the certificate of stock does not make him a stockholder: Thompson on. Liability of Stockholders, sect. 217, note citing Helm v. Swiggett, 12 Ind. 196; Coleman v. Spencer, 5 Blackf. 197; New Albany Railroad v. McCormick, 10 Ind. 499; Marlborough Manufacturing Co. v. Smith, 2 Conn. 579. And this is the doc'trine of this court, established in a case in many respects like the present; Bank of Commerce’s Appeal, 23 P. F. Smith 59.
   Mr. Justice Sterrett

delivered the opinion of the court, November 22d 1880.

The single question raised on this record is, whether appellant’s bill properly presents such a case as entitles him to relief in either of the forms prayed for. By demurring to the bill, the appellees admit all the facts therein averred, so far as they are well pleaded; and, for the purposes of the present inquiry, we must assume that they are true.

The first paragraph of the bill distinctly avers that on or about February 1869, James Bown owned, in his owii right, three hundred and fifty shares of the capital stock of the Citizens’ Oil Refining Company, for which he held the certificate of the company duly issued to him.

The second, third and fourth paragraphs trace, with sufficient accuracy and precision, the title to the stock from Bown, through the Third National Bank of Pittsburgh and Bown’s assignee in bankruptcy, into the appellant.

The fifth paragraph charges explicitly that with full notice and knowledge of the said outstanding certificate of stock, and of the fact that the same had been assigned for value by Bown to the Third National Bank, the appellees, using the name of the Citizens’ Oil Refining Company without any notice to either Bown, the Third National Bank, or appellant, and without the knowledge of either of them, and without any meeting of the corporators of the said Citizens’ Oil Refining Company, caused a petition to be presented to the Court of Common Pleas, No. 2, of Allegheny county, wherein they falsely alleged that the entire stock and assets of the Citizens’ Oil Refining Company belonged to them, and procured a decree of said court dissolving the corporation.

The sixth and seventh paragraphs set forth the means whereby the appellees, Lyons and Brush, then obtained possession of all the assets, real and personal, of said defunct corporation ; and, in the next paragraph, it is averred that said assets were of great value, and that the said appellees have continued to use and enjoy them, and have made and received large gains and profits from the use thereof.

In the ninth paragraph of the bill it is averred that as soon as appellant became aAvare of the facts thereinbefore stated, he, as owner of said three hundred and fifty shares of capital stock, demanded of appellees an account of the assets wrongfully taken possession of by them, and also of the profits and gains realized by them therefrom, which demand was refused.

The tenth paragraph charges collusion and fraud by and between the appellees, whereby it was made to appear to the Court of Common Pleas that they were the actual OAvners of all the assets, real and personal, of said Citizens’ Oil Refining Company, whereas, in truth and fact, the owner of the said three hundred and fifty shares of the capital stock of the company was entitled to a fair proportion thereof; and also, that by means of their false and fraudulent allegations as to the ownership of the assets of the company, the appellees induced the court, in January 1879, to confirm absolutely the account presented by them as trustees of said company ; and further, that the proceedings in the Court of Common Pleas were promoted by the appellees as a means and contrivance Avhereby they sought to defraud the then oAvner of the said three hundred and fifty shares of stock, and that all of said proceedings were purposely kept secret by the appellees from said Bown, the Third National Bank, the assignee in bankruptcy of said Bown, and from appellant.

In the last paragraph, it is claimed, in substance, that by means of the fraudulent acts charged in the preceding" paragraphs of the bill, the appellees became and are trustees of all the assets, real and personal, of the Citizens’ Oil Refining Company, and of all gains and profits derived therefrom, to and for the use of those legally owning and holding the capital stock of said company, and that, as such trustees, they are bound to account to appellant for said assets, gains and profits.

The prayers of the bill are: 1. That the decree of the Court of Common Pleas, of January 28th 1879, confirming absolutely the account of appellees, may be declared null and void in consequence of its fraudulent procurement. 2. That appellees may be declared trustees of the assets of the Citizens’ Oil Refining Company, and as such, bound to account to the owners and holders of shares of the capital stock of the company, together Avith all money, profits and income derived therefrom. 8. That they may be ordered to account to appellant as owner of three hundred and fifty shares of said stock, for said assets and for the income and profits derived therefrom, and that they may be decreed to pay appellant what rightfully belongs to him on account of his ownership of said shares. 4. For the appointment of a receiver; and lastly, for further relief.

The allegations of fact contained in the bill, the most material of which we have thus outlined, appear to be pleaded with sufficient clearness and precision ; and assuming, as we must in the present attitude of the case, that they are true, we are of opinion that they present a case which the Court of Common Pleas should have entertained. Inasmuch as the case goes back for further proceedings, we refrain from expressing any opinion on any of the questions that are likely to arise. We do not feel called upon at present to say more than that upon the facts sufficiently averred in the bill and admitted by the demurrer, the appellees are at least trustees ex maleficio of the assets of the Citizens’ Oil Refining Company, and as such liable to account to appellant as owner of the three hundred and fifty shares of the capital stock of said company. How far these allegations of fact may be successfully met by the appellees, when their defence is developed, remains to be seen.

Decree reversed at the costs of the appellees, and a procedendo awarded.