text:
      Court of Common Pleas, Dauphin County,

      December 13th, 1856.
    In the matter of Erb & Matter’s Estate.
    Where land, purchased with partnership funds for partnership purposes, was conveyed by articles of agreement to the partners as tenants in common, a judgment creditor of one of them has a lien on this property.
   By the Court.

From the facts presented by the auditor’s report in this case, it appears that Erb and Matter entered into partnership in a store and the clothing business, and in order to carry it on with convenience, purchased a lot in 'Wyconiseo for the sum of two hundred dollars; $20 paid in hand and $180 to be paid in one year, provided they built a house thereon. The evidence satisfies me that the lot was purchased for partnership purposes and with partnership funds, the house built and paid for with like effects, and when constructed was used for their partnership purposes. No deed was made for the lot; but an article was entered into by which the vendor contracted that, on being paid in full, he would convey to the said Jonathan Matter and Emanuel Erb, their heirs and assigns, a deed for the lot in fee simple. This contract, from its wording, imports that the deed was to be made to them as tenants in common; although we are well satisfied that it was the intention of the vendors to purchase as partners. They unfortunately employed a scrivener who did not know the difference between an estate held jointly by partners as partnership property, and a tenancy in common ; consequently the articles do not properly express the intention of the parties. No deed has yet been executed; and one point to be solved is, can the vendor and vendees, by having a deed made according to their actual intention, correct this supposed error in the articles after a judgment obtained against Erb ? If they can, have we authority in the present case to consider it corrected ? The evidence satisfies us that the payments on the lot were made out of the partnership effects, and the house was constructed solely from the same means. Therefore, equity would say that this should be treated as partnership property, raising a resulting trust in favor of the firm as in all other cases of the payment of money. ■ There is no clearer principle in equity than that which raises a resulting trust in favor of him whose funds paid for real property; and slight declarations have been considered sufficient to enable the cestui que trust in such cases to recover the land, even against the legal title. 'Where partners had taken a deed to themselves as tenants in common, and it appeared that the estate was purchased with partnership funds, the Supreme Court of Massachussetts held that there was a resulting trust in favor of the partnership (Dyer v. Clark, 5 Met. 562). The same principle is reiterated in Howard v. Priest (Ibid. 582); and the general propriety of the rule that partnership property, whether real or personal, shall be applied to the payment of partnership debts before the private claims against either of the partners can be permitted to come in, is strongly vindicated. There is no principle better settled in Pennsylvania than that partnership property shall be applied to the payment of partnership debts in preference to any claim against either partner, so far as regards the personal effects of the firm; but a difficulty has been raised in relation to the real estate, our courts holding that it shall be considered g,s belonging to the respective partners as tenants in common, unless they have placed on record a writing showing that it was held by them, as partners, in which case it has been controlled by the same rule which governs the personal chattels (1 H. 545). Why the recording act should have been applied to cases of this character we are at a loss to understand; as the failure to record any instrument concerning land only renders it void in favor of bond fide purchasers and mortgage creditors. It has never been so held in favor of judgment creditors, who are supposed to rely on the personal security of the individual, and not upon their lien on the real property (4 Y. 111; 2 Binn. 40; 1 Barr, 493). Though a purchaser at sheriff’s sale is protected (2 Binn. 40), a purchaser of land held by article acquires but an equity, and, as he buys an imperfect title, is bound to take notice of the legal estate and countervailing equities, and cannot claim to stand on the same footing with one who buys a legal title (7 Barr, 165). It is a rudimental principle, that one who buys an inchoate or imperfect title must stand or fall by the title of the person whose estate he purchased. (Sergeant v. Ingersoll, 7 Barr, 345). The lien claimed here was entered against Erb, who held a mere equity under the articles, and although the words of that instrument, if in a deed, would unquestionably have passed an estate in common to Erb & Matter, yet an article may be reformed by parol, and a deed may be executed so as to carry into effect the actual intention of the parties; nor will it receive the same construction as a deed (Defraunce v. Brooks, 8 W. & S. 67). In that case it is decided that words in an executory contract convey a fee, which in an executed one were decided to pass a life estate in Gray v. Parkes (4 W. & S. 17). A judgment creditor does not stand on the same footing with a mortgage or bond fide purchaser in regard to reforming written instruments by parol evidence, as he is not considered at all interested in the subject-matter attempted to be reformed. He has neither a right in re, nor ad rem; and can no more object than can the parties themselves (1 Barr, 403; 1 P. W. 277). His judgment is only a general security (2 P. W. 491). He is supposed to look to the goods or person of his debtor; and if he intends to rely on the land as security, should have taken a mortgage (2 Ves. Sr. 662). It is somewhat questionable, whether a different rule does not now prevail in Pennsylvania, even in the case of an article; as it is clearly settled that, as against a judgment creditor, parol evidence will not be received to show that a deed, made to men as tenants in common, should have been to them as partners, the estate having been purchased with partnership effects (3 H. 181). Though it is true that the creditor there held a mortgage also; but that circumstance is not adverted to by the court, w hy it should have been so decided, I confess, is beyond my comprehension. If a person brought a suit for the recovery of a tract of land, averring a resulting trust in his favor on account of his money having purchased it, could a judgment creditor interpose an objection, and complain that, if the land were recovered, his judgment would be cut out? Such an objection was never heard of either in a court of law or equity; and yet there is no doubt but that a bond fide purchaser or mortgagee could interpose that objection, and their claim would be held good, even if tire claimant in the action had furnished the money to buy the property. Although the deed is not to be altered by parol evidence, except'in clear cases of fraud or mistake, yet a resulting trust in favor of the partnership can be be raised by parol, on showing’ that the funds of the firm paid for the property. This is decided in Dyer v. Clark, already cited, and also in 2 Barb. Ch. Rep. 167; Ibid. 336. The rights of a bond fide purchaser or mortgage creditor are, however, protected. The same doctrine is clearly settled in England. The courts of New York have gone a step further, by deciding that where a partner purchased real estate, in his own name and with his own funds, but extensive buildings were erected on it for partnership purposes, with partnership effects, the creditors of the firm were entitled to protection to the extent of the improvements, as against the creditors of the partner owning the property (Averill v. Loucks, 6 Barb. S. C. Rep. 19; 2 Barb. Ch. 167). Such owner is considered as trustee for the firm, pro tanto. Where a partner buys real estate with partnership funds, and takes the deed in his own name, he is clearly a trustee for the partners, and the proceeds arising from the sale of such estate must go to the partnership creditors (10 Leigh, 406; 3 Kent. Com. 37; 2 Wash. C. C. Rep. 445). And a like rule prevails when the deed is to the partners as tenants in common (4 Met. 541). In England, land purchased for partnership purposes with partnership effects, is treated for almost every purpose as personal property, and disposed of accordingly for the benefit of the firm or its creditors (Gow on Partnership, 48, 49, 51, and the authorities there cited; Story on Contracts, 126, and notes; Story’s Equity Jurisprudence, s. 674; 3 Kent. Com. 37). Although the estate of the partners is recognized as a tenancy in common or joint tenancy, according to the terms of the deed, for all purposes of descent, distribution, or survivorship, after the partnership affairs are closed, yet in marshalling the assets among creditors, and as between the partners until the settlement, it is treated as personalty. A bond fide purchaser or mortgagee from one of the partners will take his interest according to the terms of the deed; but one who buys or receives a mortgage with notice takes no more interest than remains in his vendor or mortgagor after a final settlement of the partnership concerns (Brightly’s Eq., s. 207, 208). And the erection and use of buildings for the business of the partnership would be, under most circumstances, strong evidence of actual notice. . The first case in Pennsylvania, in which this subject appears to have undergone judicial investigation in the Supreme Court, is McDermott v. Laurence (7 S. & R. 438), where Tilghman, C. J., to some extent, recognizes the English rule in regard to real estate, purchased for partnership purposes, being first applied to the payment of partnership debts; although its application was very correctly refused in that case, the claimant being a bond fide mortgagee of one of the partners, without any notice of the firm being interested. The principal English authority referred to is Riply v. Waterworth (7 Ves. Jr. 424), where the land was held to be chattels for partnersnip purposes ; and the contrary case in the same book, page 453, where it was treated as land. This last case is since overruled, and is not now recognized as authority. In the case of McDermott v. Laurence it is very manifest that the Chief Justice considered the mortgagee protected by the recording act, which appears both from his course of reasoning and the authorities relied on, particularly 4 Mumford, 316, which is a sound exposition of the law: The court having held that a bond fide purchaser of the interest of one of the partners, without any notice of the equitable lien of the others, would take the property discharged from the debts. It is true that the learned judge also cites with approbation Coles v. Coles (15 John. 159), which would certainly not at this day be recognized as the law of New York, where the estate of the deceased partner owed the firm; and 11 Mass. 469 is now entirely repudiated in Massachusetts. The Chief Justice, with his customary caution, intimates that where the intention is to hold the real, as personal estate for partnership purposes, it would be prudent to put their agreement to that effect on record; but he nowhere says that it is necessary. Hale v. Henrie (2 Watts, 147) is a case of a different character. There the dictum of Judge Tilghman, that the agreement should be placed on record, is fully carried out; and it is declared that the intention to bring real estate into the partnership stock must be manifested by a writing duly recorded; otherwise it must, for all legal purposes, remain land. That there is nothing in the recording acts requiring this as regards a judgment creditor, I consider, is demonstrable. That it is correct in relation to bond fide purchasers and mortgage creditors is equally clear. The court of last resort can declare the law, and it is binding on all inferior tribunals; but in the case under consideration, they have made, not declared it. We must concede that it would be improper to contradict the deed by parol, and show that an estate granted to two persons as tenants in common, as expressed in the deed, was in reality to be held by them as personal property for partnership purposes, and not as stated in the writing; but that is not necessary, nor was it permitted in any of the reported cases. In England, New York, Massachusetts, and Virginia, there was no attempt to contradict the deed; but a resulting trust was established by showing that the firm paid the money for the land, and constructed and used the buildings for partnership purposes. The trust results from operation of law, and like all the other trusts, must yield to those who ■ purchase or receive a mortgage in good faith, but is binding between the parties, and all other persons, judgment creditors included, who have no interest in the land till after the sale, and only then, if they become purchasers. The case of Hale v. Henrie was correctly decided, so far as it enables the purchaser at sheriff’s sale to recover the prop erty; but had it been a question of distribution; it never could have received any sanction. The rule, as stated in that case, is clear and unambiguous, and declares that nothing short of a recorded instrument, showing that the property was held for partnership purposes, will avail to raise an equity in the partners or the partnership creditors. The same.doctrine is reiterated in Lancaster Bank v. Myley (1 H. 544), and Ridgway, Budd, & Co.’s Appeal (3 H. 177); so that we must take it to be the settled doctrine of Pennsylvania. The consequence follows that if two men purchase land by parol, pay for it with partnership money, erect a factory on it for the business of the firm, and always use it in the prosecution of their partnership affairs, they are presumed to hold as tenants in common; and nothing can repel that presumption but an article or writing placed on record. A judgment against one of them for his private debt will exclude the partnership creditors, whose effects probably built up the property. The heirs of one will inherit one half to the exclusion of the other, on whom, as survivor, are thrown all the debts of the firm; or if he eventually comes on the property by an action of account, he must receive the assets in common with the private creditors of the other partner. This is, as we conceive, contrary to the laws of all the other States, and to those of Great Britain, conflicts with all our decisions in regard to resulting trusts, and is not called for, nor required, by our recording acts. It is against the principles of the common law and the rules of chancery, and is not founded on any statute. It is court-made law. There is one case in our books, which appears to conflict with this general doctrine (Overholt’s Appeal, 2 Jones, 222). The demand was for an issue to try whether the property did not belong to the firm, and was used for partnership purposes; and also to show that there were partnership debts, entitled to the proceeds of the sale in preference to the private creditors of the partners. This was refused by the court below, because the character of the debts must appear of record, and it could not be shown by parol that a portion of the judgments were rendered for partnership debts. But the Supreme Court reversed the judgment, on the ground that the facts to be ascertained by the issue were proper and important in establishing the right to the money. Why direct an issue to try what the other cases say must appear of record ? If the character of the partnership property must be found by a recorded writing, why not bring it into court, and exhibit the matter of record instead of directing an issue ? Yet this is a solitary case, standing against three others, and is only mentioned to show that rights of this character are not always recorded. The opinion expressed is more with the view of showing our disapprobation of the Pennsylvania authorities generally, than their application to the present controversy; as the article is drawn in terms to hold as “ tenants in common;” and we have no express and clear evidence, such as the law requires, to reform a writing. Even the state of the partnership business and accounts is left in uncertainty. We must take it that these parties held the kind of estate mentioned in the article. In addition to the authorities cited, Cumming’s Appeal (1 Ca. 269) has a strong bearing in support of the auditor’s decision. We do not consider that the evidence taken on the second hearing materially changes the rights of the parties. The auditor distributed the money according to the settled law of Pennsylvania, and his report is confirmed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Dauphin County,

      February 7th, 1856.
    Karthans v. The State Mutual Fire Insurance Company.
    When a policy of insurance contains a clause to refer all matters in dispute in case of loss to arbitrators, whose judgment shall be conclusive on both parties, and the paper claimed by the plaintiff to be an award gives greater damages than are covered by the policy, the court will consider 'this an appraisement instead of an award, and set aside the judgment entered ' thereon. Judgment for want of an affidavit of defence cannot be taken on an award of arbitrators.
   By the Court.

This suit is brought on an award; and the first question presented is, was there one made between the parties? To judge from the paper claimed by the plaintiff to be an award alone, unaccompanied with the agreement to refer, we would rather construe it to be an appraisement of the value of the property injured, as it does not purport to decide or pass upon any dispute or controversy. The language used imports an appraisement of the loss or damage, rather than a decision of the rights of the parties. That view is strengthened by the fact that the damages are assessed at $3825.78 on an obligation, which can at most bind the defendant to pay $3000. On the other hand, the policy of insurance that in case any difference shall arise touching such loss or damage, etc., and if the company or their agent require it, it shall be submitted to the judgment of arbitrators chosen in accordance with the 11th article of the conditions annexed to this policy, whose award in writing shall be binding on both parties.” On recurring to the 11th article referred to, we find thatit relates solelyto the appraisement of personal property, and points out a method of selecting appraisers to fix its value, treating and speaking of them throughout as appraisers merely, not as arbitrators. The provision in the body of the policy relating to real estate, uniformly calls them arbitrators and their report an award. How then can the clauses be reconciled? We answer that there is no conflict. The arbitrators are to be chosen, in the one case, pursuant to the method pointed out for selecting appraisers, in the other, by 'each party nominating a man, and they, in case of disagreement, appointing an umpire; but when chosen, they are to pass not only upon the amount of damage, but the liability to pay it; they are to determine both as to the loss and damage.

It does not follow from this that the defendant is obliged to pay the amount awarded. An award at common law may be impeached by showing plain mistake in law or fact on the part of the arbitrators, unless in some special cases. It is certain that this award is far too much, by over $800; which is one circumstance tending to invalidate it. From the form of the report it is not unlikely that the arbitrators mistook their duty, and never passed upon the main matter in dispute, the defendant’s liability to make compensation. This may have arisen from a mutual misconstruction of the agreement, as all parties, including the referees, probably supposed that they were mere appraisers. On a trial of the cause, we are disposed to consider that errors in the award may be established by proof, though it will stand as primd facie valid. In a case where the construction of the agreement is attended with difficulty, and where we cannot help feeling that the words used do not carry into effect the intention of the parties, where the amount awarded is greater than the defendant undertook to pay in any event, and can only be supported by remitting the excess, and from the form of the award and the facts testified to by witnesses, it would seem that the main point was never passed on by the arbitrators, we do not consider that a party should be barred by a judgment by default from having all the points of his case fairly raised and placed irna situation to be reviewed by a superior court; for that reason we deem it our duty to open this judgment.

It might admit of grave question, whether the judgment for want of an affidavit of defence was properly taken. The 52d rule of court speaks of bills, notes, bonds, records, or other instruments of writing for the payment of money.” It may be argued with great plausibility that this award is not an instrument of writing for the payment of money within the meaning of the rule. We are disposed to think that the other instruments” there spoken of refer to obligations of a like nature signed by the party to be charged. This has been a mooted point in the District Court of Philadelphia. In Bayard v. Gillasspy (1 Miles, 256), a majority of the court decided that a suit on an award came within the act of Assembly, of which our rule is a transcript; but the dissenting opinion of Judge Jones, as we consider, is best supported by reason. We find that in a much later case referred to in the last edition of Pennsylvania Practice, 323, the dissenting opinion is sustained in an action and award under a policy of insurance (Wh. Dig. Sup. Practice, V, s. 18 and 20). Had the motion in this case been to strike off the judgment, in our opinion it should have prevailed. It is ordered that the judgment be opened and the defendant let into a defence; the lien to remain as security in the mean time, if the judgment is now binding on any real property.

Fisher, for plaintiff.

Kunleel and Simonton, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      March 11th, 1857.
    Miller v. The State Mutual Insurance Company.
    In an action on a policy of insurance no affidavit of defence is required.

      Bishop, for plaintiff.

      Kunleel, Lawrence, and Bimonton, for defendant.

   By the Court.

In an action on a policy of insurance, whether brought in covenant or assumpsit, no affidavit of defence is required. It is not an instrument of writing for the payment of money within the ordinary acceptation of the term, but is a contract of indemnity against loss. The money is only payable on a contingency; and in addition, this and every policy contains certain conditions to be performed by the party insured. The insurer does not even contract to pay a specific sum, but merely as much as will cover the loss, not exceeding a stated amount. The underwriter has the right by the terms of his contract to repair an injured building when the destruction is partial, to insist on preliminary proof in every case, and to have the amount adjusted by referees if he thinks proper. As well might it be contended that a bond given under a penalty to build a house by a certain time was a contract for the payment of money. There is no reported case in which it has been held that a contract of insurance came within any law or rule of court in Pennsylvania, requiring an affidavit of defence. That method of obtaining an early judgment was intended for cases of clear and unconditional contracts for the payment of money, and not for contingent and uncertain bargains. The judgment in this case was improvidently taken, and must be set aside.


text:
      Court of Quarter Sessions, Dauphin County,

      March 11th, 1857.
    Commonwealth v. Liebtreu.
    Several distinct crimes may be charged in different counts in the same indictment. In an indictment for selling liquor to minors, their minority and names must be averred, if known; also that the defendant well knew that they wore minors; in one for selling to persons of known intemperate habits, the fact that they were persons so known must be set forth; and in one for selling on Sunday, the fact of sale only on that day need be averred, not the names of the persons to whom the liquor was sold.
   By the Court.

Motions have been made for a new trial and in arrest of judgment in this case. It is complained that the defendant is charged with five distinct offences in one indictment, and consequently had not a proper opportunity to make his defence. It must be observed that all of the offences charged are misdemeanors; and, although they arise under different acts of Assembly, are of a similar character. It was discretionary with the district attorney to prefer separate bills, or charge all of the offences in one, containing different counts; and as the latter is decidedly for the advantage of the defendant in diminishing the expenses, he cannot complain. Each charge is as specially set forth as though five separate bills had been prepared. On the first count, for keeping a disorderly house, the defendant was acquitted. On the second, for selling spirituous and malt liquors without a license, he was convicted. That count is fully sustained by the evidence; and although not very artificially drawn, the crime is charged in good legal form, and judgment must be rendered thereon. The third count is for selling liquor to minors “ to the jurors unknown,” etc. This is not properly sustained by the evidence. In a charge of this character, when the offence consists not in the sale or trafficking of liquor contrary to law, but in furnishing it to a particular class of persons, it is indispensable to name the party and aver his minority, except when it is laid that the name is unknown, which would dispense with the necessity. But that averment must be true, which is not the case here; as the name of at least one of the minor witnesses was indorsed on the bill, and he was also called in court to prove his age and the purchase. This was ground of acquittal on the trial, and the jury should have been so instructed.

No sentence will be pronounced on this count. We have doubts, also, as to whether it is valid for want of the scienter. In our opinion it should be stated that the said Augustus Liebtreu well knew that the person to whom he sold was a minor. The guilty knowledge is the gist of the offence. This may be inferred from circumstances, as personal appearance, residence in the vicinity, or the like. On the fourth count the defendant was acquitted; but we will observe, en passant, that it is fatally vicious, as it omits the scienter as to the habits; does not aver that the persons furnished were of known intemperate habits, and fails to conclude “ against the form of the statute.”

The fifth count was fully sustained by the evidence, and is, in our opinion, good in law. The offence does not consist in selling to particular persons, but in selling, trading, or bartering in liquors on a particular day. It must be averred that the defendant did “sell, trade, or barter liquor on the first day of the week,,commonly called Sunday;” stating the names of the persons to whom the sale was made, or that their names were unknown, is surplus-age, and need not be averred or proved. The count is not precisely in the words of the act, but conforms substantially to its requirements. Therefore we cannot arrest the judgment on it.

The court gives judgment for the commonwealth on the second and fifth counte of the indictment, and on the third for the defendant.


text:
      Court of Common Pleas, Dauphin County,

      February 7th, 1856.
    Seal v. Northern Central Railroad Company.
    The only remedy to redress a mistake in the amount of damages assessed by viewers in a suit against a railroad company is by appeal and trial by jury; the court will not pass upon this question on exceptions to the report of viewers. The appeal should be in the same form as that from the award of arbitrators.
   By the Court.

Under the act of 1849, for assessing railroad damages, the report of viewers requires the confirmation of the court before it becomes binding on the parties, and for inadequacy or excessiveness of damages would be set aside. Although it was always with great reluctance that this court interfered with the report of viewers on a mere question of damages, I had no doubt that we had the power so to do, and that it was our bounden duty to refuse our sanction and confirmation where the amount was grossly wrong.

We have generally declined interfering with reports, except for errors of law on the part of viewers; yet in some qases they have been set aside for excessive damages. The act of last session gives another remedy to the dissatisfied party, — appeal from the report at any time within thirty days after confirmation by the court. Although this act is lame and defective, furnishing no details for the mode of proceeding; yet there are some principles which can be clearly deduced from it. The court is relieved from the duty of deciding between the dissatisfied party and the viewers by •referring the question of damages to the constitutional triers of such questions, a jury; and since the act went into effect, we hold that the only remedy of correcting errors of the character complained of here is by appeal.

Alricks, for plaintiff.

Kwnlcel,for defendant.

For mistakes of law apparent on the face of the report, I have no doubt that the remedy remains as before the passage of the act. It is probable that we can also afford relief for errors of law committed by the viewers, even where the same are not apparent, but are established by testimony. But for an improper amount of damages I have no doubt that the party is driven to an appeal ; and our power to relieve is taken away by the clearest and most necessary implication.

In the present case the report of the viewers has long since been confirmed nisi; but that is not the confirmation required by the original law, nor contemplated by the act of 1855. The party is not called on to take his appeal till thirty days after final confirmation ; for peradventure the report might never receive the approbation of the court.

The appeal is in some respects analogous to that given from awards of arbitrators, which is the only mode of redress against an error not apparent on the face of the award (2 S. & R. 106; 4 S. & R. 141; 7 Barr, 94; 2 H. 157).

A question has been raised as to how the appeal is to be taken. The statute is silent on the subject; but we conceive that the legislature intended the general method to be pursued as in the case of appeals from the awards of arbitrators. Where the party appellant is a corporation, the course pointed out by the act of 1817, as modified by the 12th section of the act of 25th of April, 1850, may besafely pursued; and it may be requisite to make the affidavit and give the security as prescribed in such cases by those acts. We are not called on to direct the remedy in advance, as the court possesses a supervisory power, and can correct the error, if any exists, by granting the appeal.

Believing that we have no authority by law at this time to set aside the report of the viewers for the reasons assigned, the exemptions are dismissed and the report confirmed.


text:
      Court of Common Pleas, Dauphin County,

      May 13th, 1857.
    Zimmerman v. Neuer.
    Where a judgment is given by a principal to his sureties to indemnify them against loss, the debt paid in full by one of them, and the judgment marked to his use, if he fails to make his money by issuing execution upon it, he is entitled to contribution from his co-surety.
   By the Court.

This suit was brought for money laid out and expended. The evidence shows that the plaintiff and defendant were sureties for PI. W. Began in two promissory notes, and received for their indemnity a judgment in their favor, confessed by Began, for $350. Zimmerman paid the two notes to the banks, after protest, and issued an execution, No. 3, November Term, 1855, which was levied on the property of Began; it was advertised for sale, and proceedings stayed by Mr. Jordan, who signed the stay as counsel for the plaintiffs. An alias fi. fa., No. 5, January Term, 1856, issued, which was levied on the same effects, and a stay ordered by Mr. Neuer. Mr. Zimmerman then presented his petition to the court, stating that he had been obliged to pay the whole debt of Began, and thereby Neuer was entirely relieved therefrom and had no interest in the judgment, and asking that the same should be marked for his (Zimmerman’s) use, and the stay ordered by Neuer stricken off. This prayer was granted December 28th, 1855, and it was ordered by the court that the judgment should be so marked, and that Zimmerman should have the entire control over it, and the stay ordered by Neuer disregarded. A sale of Began’s property was then made by the sheriff, and the sum of $50.34 realized after paying the costs. This is all that can be collected now from Began; and the present action is brought to compel Neuer to contribute his portion of the debt paid by Zimmerman, one of the sureties. Neuer contends that taking control of the judgment and claiming it as his own, bars Zimmerman from recovering any portion of the money paid for Began. If Neuer could show that by proper management of the judgment the whole debt could have been made out of Began’s property, it would be a valid defence; but nothing of that kind is pretended. It is not alleged that the proceeding was mismanaged, nor is it averted that anything more, at this time, can be obtained. Therefore we are at a loss to understand on what principle, legal or equitable, Neuer can escape from contributing his portion of the loss. The petition, when presented, was literally true. Zimmerman had paid the whole debt, and Neuer had no interest in the judgment of indemnity, had no right to interfere with the process till his co-surety was repaid his expenditure. On the latter paying the former one half of his loss, the judgment will belong in equal portions to each. Until that is done it belongs to Zimmerman. Equity would not permit either to use it except for indemnity, and it should then be controlled by the party indemnified. So using it will not bar the one out of pocket, or prevent his recovery from his co-surety. No doubt a party may waive his right to receive contribution; but it must be done by clear and unequivocal words or acts, or arise from necessary implication. Nothing has been said or done in this case to waive it, and the right still remains in full force. Mr. Zimmerman is entitled to recover one half the money paid on the notes of Regan, with interest from the time of payment, deducting therefrom the sum realized by the sheriff’s sale. Therefore we enter judgment in favor of the plaintiff on the conceded facts for the sum of one hundred and seventy-two dollars twenty-one cents ($172.21).


text:
      Court of Common Pleas, Dauphin County,

      July 3d, 1857.
    Finney v. Reed, Guardian of Finney et al.
    The personal property is tlie primary fund of which the debts and legacies of a decedent should be paid. A bequest cannot be charged upon the real estate except by the express intention of the testator or necessary implication from the will.
   By the Court.

By the case stated it appears that Thomas Finney died seized among other real estate of a farm worth $2000, which he devised to his two sons, John and Thomas ~W.; and left personal estate we presume after paying his debts, to the value of $10,000. Of this by the original will he bequeathed $1400 to his three daughters; $1000 to his two sons above named; and if the $1000 now in dispute should be included will make in all, $3500; besides some items of personal property to two of his daughters, and the entire farming utensils to his sons, probably not altogether to the amount of over $4000. All the remainder of his personal effects he ordered to be divided among his children after the youngest attained full age. He further directed his executors to sell all of his real estate except the farm, and the proceeds thereof are blended with his personal property. By a codicil to his will he gives to his wife $600, in addition to his former bequests; $400 to each of his two daughters; and to the third a house and lot in lieu of a bequest of $300 given by the will; and also bequeaths to her $400 in addition. These latter sums are all to be paid out of the personal estate, and the residue he directs to be divided between his wife and all of his children. All of these legacies given by the will and codicil, leaving out the personal property bequeathed to the two sons, or directed to be preserved for the daughters, amount to less than $5000. Therefore, the funds in the hands of the executors is ample to discharge all the legacies without incumbering the real estate devised to the two sons. Was it the intention of the testator to charge the farm in their hands with the payment of the interest of $1000 to their mother during her life? That must be collected from the whole terms of the will. The bequest mainly relied on is in these words: “ I give, devise, and bequeath to my beloved wife, Margaret Finney, all such household and kitchen furniture as she may choose after my decease, and her living and maintenance on my farm, now occupied by me, during her natural lifetime, and further the annual interest of $1000 during her lifetime.” The personal estate of a testator is in all cases the primary fund, not only for the payment of debts, but of all general legacies; and to charge the same on land requires an expressed intention, or such a disposition of the property that the same may be clearly implied. An implication arises in some cases from the blending of real and personal estate'in one common fund. That is not done here; on the contrary, the farm is given in terms to the two sons, and in addition $1000 out of the residue of the estate to add to the improvements. It cannot be pretended that the $1000 given to Mrs. Finney is so charged upon the land as to create a lien; that must be done by clear and express words, and is not to be favored or presumed. Was it the intention of the testator that the devisees should pay that money if they accepted the devise ? The wife is to have her living and maintenance on the farm during her natural life, and we conceive it is fairly to be implied that she is to have such living and maintenance out of the farm or its proceeds. The testator then adds, “and further the annual interest of $1000 during her lifetime.” The words “ and further ” have doubtless raised the dispute in this case. We consider that, as here used, they mean no more than would the expression “and also,” or “in addition,” or “I further .give her the interest of $1000 during life;” none of which expressions could be held to imply that the sum so bequeathed should be paid by the devisees of the farm. As we have already said, if they are to be charged with this legacy, it must be by the direction of the testator; and if he has failed to so order the payment, we must resort to the rules of law to see from what source the legacy must be derived. The law clearly throws it upon the personal estate. In the after direction of the will the real estate not so bequeathed is ordered to be sold, and is thrown into a common fund with the personal effects, and all to be applied to the payment of legacies as directed by the will and the discharge of the debts; the remainder, if any, is to be divided. The codicil makes no change in the general disposition of the property, but rather strengthens the view taken, as he directs his wife to be paid one additional sum of $600; each of his daughters have further donations, and he then orders that all of the said bequests and sums of money shall be paid out of any personal estate, etc.” This direction we consider applicable not only to the bequests in the codicil, but in the will also. ■ The remainder of the personal effects, after settling the estate and making all of the payments directed, is to be equally divided between the wife and all of the children. If any additional argument were wanting to show that Mr. Finney did not intend to charge the farm in the hands of his sons with this money, it is to be found in the fact that he gave them out of his general estate the sum of $1000 to add to the value of the land. He would scarcely bequeath to them this sum of money, and at the same time charge their properly with a like sum in favor of his wife. It is sufficient, however, that it is not so charged in words, and the law points out the fund for payment. It is the duty of the executors to invest $1000 on interest for the use of the wife during her life, and to pay her the interest annually, but she has no claim either on the land devised to her sons, or on their personalty for payment. Therefore we give judgment on the case stated in favor of the plaintiff.


text:
      Court of Common Pleas, Dauphin County,

      December 26th, 1857.
    Boyer et al. v. The Northern Central Railway Company.
    A corporation cannot take a stay of execution. The thirty days within which damages assessed by viewers against railroad companies mustbe paid under section 11 of the act of February 19 th, 1849, is not such a stay of execution as is contemplated by section 6 of the act of October 13th, 1857. Where a certain number of days are given by law within which to do an act, one of them is included and the other excluded. (Thomas v. Affliek, 4 H. 14, and Barber v. Chandler, 5 H. 48, doubted.)
   By the Court.

On an assessment of damages made by viewers in favor of the plaintiff above named, judgment was entered by the court, October 10th, 1857. On the 10th of November, following, a fi. fa. was issued on the judgment, and property of defendant levied on. On November 12th, on security for the debt being entered, the execution was stayed, and an order made to suspend all further process for one year,, from October 13th, 1857. On November 17th, a motion was made by plaintiff’s counsel to rescind the order on three distinct grounds. 1. The defendant, being a corporation, does not come within section 6 of the act of October 13th, 1857. 2. It has already enjoyed the benefit of the stay of execution. 3. The application was not made, and security entered in time. None of the acts of Assembly heretofore in force in this State gave a stay of execution to corporations. Though not excluded from their operation by name, yet they are by the clearest implication. The act of March 24th, 1806 (4 Smith's Laws, 429) is the prototype of that of June 14th, 1836 (Dunlop, 809). From the former the latter law was framed. They both give the stay for certain periods of time, if tire defendant is possessed of a freehold to a certain amount clear of all incumbrances; but if he is not, execution may issue forthwith, unless security in the nature of special bail is given. On that being done, a stay is secured for thirty days, and for a further time on giving security for debt, etc. A corporation can by no possibility enter special bail, nor security of that nature. It cannot be surrendered, which is essential to the character of special bail. Hence, without any express words, it is excluded from tire benefit of both of our general laws on the subject, and always has been. The words of the acts are applicable to individuals in their natural capacity alone, and not to artificial persons. Did the legislature intend to change the system by section 6 of the act of October 13th, 1857 ? All the words of that section seem rather to apply to natural than to artificial persons. In fact, some expressions are wholly inapplicable to corporations. It says: If the defendant shall be possessed of any estate in fee simple, within the respective county,” worth, etc., “ over and above all incumbrances, and the amount exempt from levy and sale on execution, he shall be entitled to a stay, etc.” Now it is well known that no portion of the property of a corporation is exempt from levy and sale; of course, it could not have been within the contemplation of the legislature. The expression tends as strongly to show the meaning of the law-making power, as the provision for entering special bail under the acts of 1806 and 1836; both of which have always been construed to be inapplicable to corporations. The words of the act of 1857 are very general ; but their whole tenor seems applicable to the case of natural persons. Yet, without the provision referred to, we might be unable to exclude corporations; but those words, in our opinion, show clearly that it was the intention to embrace only those persons, who, as a class, could claim the exemption of a portion of their effects from execution. It may be supposed that, as the general scope and object of the act was to furnish relief to a certain class of corporations, the banks of the State; and as they were by this section precluded from collecting the debts due them for one year, a similar indulgence was intended to be extended to, them; and if they are embraced within this section, all other corporations would be as a necessary consequence. We did not find in any portion of the act a disposition to relieve that class of corporations from their common-law responsibility to pay them debts; but merely to exonerate them from the penalties and forfeitures imposed by other statutes. The common-law- remedy by recovery of a judgment, execution, and sale of property remains as before this act was passed. It is not the policy or duty of the courts to take it away, unless the legislature had clearly so provided. We believe that the remedy upon contracts should not be disturbed, but remain as, heretofore. The order staying the proceedings for one year, was improvidently made in this case, and must be rescinded. The security given was not authorized by law, and the recognizance to secure the debt must be discharged. As this order is decisive of the case for the present, it might be considered unnecessary for the court to express any opinion on the other points; but as the question may come before the Supreme Court on a writ of error, we will give our views on those also. Section 11 of the act of February 19th, 1849, under which the damages were assessed in this case, provides that after confirmation of the report of viewers, judgment shall be entered thereon; and if the amount thereof be not paid within thirty days after the entry of such judgment, execution may issue, etc. Is this such a stay of execution as is contemplated by the proviso to section 6 of the act of October 13th, 1857 ? . That it is a cesset executio for thirty days, there can be no doubt; but is it given for the purpose for which stays are allowed by our laws to enable the defendant to raise the money with less inconvenience ? In all other laws enacted for the purpose of giving a cesset, the time is scaled by the amount of the judgment; here it is the same, whether the sum be ten dollars or ton thousand. In the other cases it depended on the safety of the debt by it being a lien on freehold estate, or security given for payment. Here no execution can issue, whether the defendant owns any freehold, or is insolvent. Under the other laws the stay must be claimed by the defendant; here it is made part of the conditions of the judgment. To me it seems rather in the nature of that kind of suspension of execution, which is given on judgments rendered on special verdicts or cases stated, to enable the party to sue out a writ of error. It is a condition annexed to the judgment rendered in a summary proceeding out of the course of the common law, and need not be claimed by the defendant. Therefore, it is not taken, as provided in the act of 1857, but is conferred, probably, to enable the railroad company to sue out a writ of error. Had the law been then, as it is now, we should say it was to give the party time to enter an appeal, and claim the trial by jury; but as that provision did not then exist, it cannot aid us in interpreting the statute. If necessary, we shall decide that the defendant has not taken the stay of execution, and is not precluded from claiming it by the proviso.

The question of time is the last point for consideration. The act of Assembly was passed October 13th, 1857. The security was entered, and stay of execution claimed November 12th. If one day is to be computed as inclusive, and the other as exclusive, this is within the time prescribed by law. If both days are to be taken as inclusive, the defendant is one day too late. Section 6 of the act of Assembly, gives a stay on judgments now obtained, or to be obtained on suits now brought, for the time of one year from the date of the passage of this act, and on all others for one year, to be computed from the first day of the term to which the action was commenced. And every defendant in such judgment may have the same stay of execution thereon, if within thirty days from the passage of this act, or within thirty days from the rendition of any future judgment, he shall give security, etc.” As early as 1815, an act of Assembly, worded substantially like the present, received a judicial construction from the Supreme Court of this State (Sines v. Hampton, 1 S. & R. 411). It was held that in computing time the one day must be included, the other excluded, as the act was intended to give the entire number of days named, and if the transaction took place on the last moment of the first-mentioned day, the party would have in reality but nineteen days to do that for which the law designed he should- have twenty. There can be no fractions of a day, except for certain special purposes. In 1831 the subject again came before the same court, which laid down this general, plain and simple rule: “ Whenever by a rule of court, or an act of the legislature, a given number of days are allowed to do an act, or it is said an act may be done within a given number of days, the day on which the rule is taken, or decision made, is excluded” (Goswiler’s Estate, 3 Penna. 200). So the law stood unquestioned and undoubted for about twenty years. It had regulated the conduct of parties, directed ihe action of counsel, and controlled the judgments of all the courts of this commonwealth, both inferior and superior. But then, unfortunately, a case arose in which, for the purpose of sustaining an action improperly brought, the rule was overturned, and the principle of the preceding cases shaken, if not overturned. And to what end? That we might have again introduced the finespun metaphysical distinctions which had agitated the English courts for over a century, and caused as many contradictory decisions, and as much waste of sophistical reasoning, as any of the numerous hairsplitting questions concocted by the scholiasts. Any jurist who will take the trouble to read the opinion of Lord Mansfield, in Pugh v. The Duke of Leeds (Cowper, 714), and the numerous cases referred to by him, will be struck with the impropriety of again opening this vexed question, and turning the people, the legal profession, and the courts into a sea of metaphysics, without chart or compass. The conflicting decisions puzzled even Lord Mansfield. It is wholly unimportant what rule is adopted, provided it is adhered to, as there is no difficulty in the business of the country conforming itself to it. But it is difficult to follow a system of perpetual change. Even the presumption of twenty years’ constant acquiescence settling a legal principle in Pennsylvania does not appear to hold good in this case. Although an inferior court, and acknowledging fully the obligation to be governed by the decisions of those placed above us, we are not disposed to depart from the ancient rule for the computation of time in Pennsylvania, unless the question shall be settled on full and deliberate consideration. The point came up in Thomas v. Afflick (4 H. 14), and was very summarily disposed of, as we believe, without proper consideration, in order to support an action improperly commenced. There is a short per curiam opinion in which the case of Goswiler’s Estate is questioned, but not overruled. The next mention of the subject is in Barber v. Chandler (5 H. 48), where the question did not arise, and, therefore, all that is said may be considered obiter elida. It is relative to the time of serving a summons issued by a justice. Only four days intervened, provided one day should be included, and the other excluded, but five days if both were included. There was an appearance by agent, which was the same as in person, and cured the want of notice, which was the main point, but the court said the service was good. This, in our humble judgment, is contrary to the general practice and received opinion of nearly every justice in the State. It is also contrary to the settled practice as to issuing writs of summons out of court, which cannot be done after the Friday next but one preceding the return day, being ten days exclusive of the day of issuing. The same custom has always prevailed in computing the time for service of similar writs; also as to appeals from awards of arbitration and judgments rendered by justices of the peace. There is, perhaps, but little doubt that the common-law method of computing time is to include both days, and this has been adopted even in the construction of statutes, depending in some measure on their peculiar words. As in Douglas, 446; 3 East, 407; 3 Term Rep. 623. Yet under the enrolment act (27 II. VIII, c. 16), which provides that all deeds must be enrolled within six months next after the date of the instrument, one day is to be included, the other excluded (Dyer 218). Many cases might be cited under other statutes to the same effect. For a long period the English judges drew a distinction between the words, “ from the date,” and “ from the day of the date.” They at length had the sagacity to discover that they meant the same thing. Judge Washington lays down a rule of good sense, which might be readily followed: “Where the expressions are from the date,’ I understand the rule to be, that if a present interest is to commence from the date, the day of the date is included, but if they are used merely to fix a terminus from which to compute time, the day is in all cases excluded.”' (Purpoint & Lord v. Graham, 4 W. C. C. R. 240.) Judge Rogers adopts substantially the same rule in Lysle v. Williams, 15 S. & R. 135. The provision in this statute we understand to be merely fixing a day from which to compute time. There is rarely much difficulty in construing contracts or other instruments between parties. For the most part it can be ascertained from the context, whether the parties do, or do not intend to pass a present interest, and when that rule fails, the words shall be most strongly construed against the speaker, and in favor of those receiving a benefit under the writing. But no such principle can be invoked to aid in the construction of a statute. Possibly in the present case, as in Sines v. Hampton, the most favorable construction should be put on the act of Assembly to favor debtors, as the object is to confer on them a benefit; but I think the general rule, which so long prevailed in this State, should not be departed from, and should apply to all cases arising under acts of Assembly. If the courts are unwilling to lay down a general rule, or allow the one long in use to govern, the principle should be fixed by a general statute, so that all persons might understand the law, and their rights and duties under it. We are of the opinion that the bail in the present case was entered in time; but for the reasons already given, it is inoperative.

Fisher, for plaintiff.

Kunhel and Lawrence, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      March 11th, 1857.
    Fisher v. The Harrisburg Gas Company.
    No contract can be made by the directors of a company, unless all be present or be notified to attend, or it is done at a regular meeting of the board. Where the board of directors is fixed at a certain number, there must be a majority of that number present in order to constitute a quorum, even if the board is not full at the time. A director, if he is present, but keeps silent and takes no part in what is being done, does not bind the company. When no agency is proved, the president of a corporation has no power to bind it by his contracts. When an agent agrees to do a piece of work for a certain sum, and after its performance the principal promises to pay him more, this is void for want of a consideration.
   By the Court.

Several reasons which have been assigned for a new trial will receive but a passing notice. The court did not refuse to admit evidence on the quantum meruit, but merely suggested the propriety of not offering it, as there was not the slightest probability that any jury would allow more than had already been paid, unless the same was due on a special contract.

The court instructed the jury in substance, that where a meeting of the directors took place in the manner those gentlemen came together, as stated by Mr. McCormick, it matters not where they met, whether at the office of the company or elsewhere, if on previous notice or without it, or for what purpose they met, a majority of the whole board could make a contract binding on the company; that such a contract made by two of the three present was not binding, as that would not be a majority of the whole board. Mr. Calder, by his silence, could be presumed to have assented, provided he knew of the existence of tíre former contract, its character, and the change proposed; but if he knew nothing of it, had never heard of the bargain, or knew that he was consenting to the change of one previously made by resolution, his act or silence was not binding on the company; to make it so he must know what he was bargaining about, that a contract had been previously made which he was changing, and if the jury believed he was entirely ignorant on that subject, his silence or acquiescence did not bind the company or stockholders whose interest he represented. Was this instruction erroneous ? If it was, it is our duty to grant a new trial.

The charter of incorporation does not declare what number of directors shall form a quorum, nor when, how, where, or on what notice they shall meet for the transaction of business. It is also said that the company has no by-laws. We are then left solely to the guidance of the common law. The 6th section of the act of incorporation, says, that a plurality of the stockholders present or represented may elect “a president and five directors, of whom the president shall be one, and other officers* and agents,” etc. Again, the 8th section declares that the stockholders shall, on the first Monday in November of each year thereafter, “elect a president and five directors,” etc. By the terms of the act, taking both these sections into consideration, it is very clear that the board must consist of the president and five directors, and as by the 6 th section the president is made one of the directors or given the power of a director, it requires four to constitute a quorum, this when the board is full. From the evidence it seems that when the transactions in question took place, there were but four directors and a president; consequently these formed no quorum for the transaction of business. Ever since the decision of Grundy v. Barker (1 Bos. & Pul. 229), it has been considered a settled principle that where a number of persons are intrusted with powers not of mere private confidence, but in some respects of a general nature or public character, and all of them are regularly assem bled, the majority will conclude the minority, and the act will be the act of the whole; in the case of corporations it is not necessary that the whole number should meet, it is enough if notice be given, and a majority come together, and when thus met a majority of those present can decide. If all be summoned, and part appear, the major part of those who appear can do the corporate act (2 Atk. 212). When legally assembled, the majority of voices govern; but a majority of each integral part must be present when the corporation is composed of parts (7 S. & R. 561). There must in every case be a majority of the directors present to constitute a board, unless otherwise provided in the charter; where that is silent, it is left to the common law, which is never satisfied with less than a majority (7 Cowen, 409; Angell, s. 291). Where due notice is given of the time and place of meeting, the act of a majority of directors must govern (Angell, s. 488, 489).

Grant, in his work on corporations (page *68), lays down the general principle that where a majority is duly assembled, their acts bind the minority, but such majority must meet for the purpose; such will must, in all cases, be collected at a corporate assembly duly constituted (page *69). Where dll the members of a corporation have met together, it matters little how the acts of a majority govern in ordinary business (*70). But if any one is absent who has a right to be present, the acts are not valid, unless he was notified (Angell, s. 495; 8 East, 543). Notice to the corporators is strictly required, unless the meeting is on a regular day and at the usual place (5 Barr, 268). If less than the whole have assembled, and those absent have not been notified, no corporate act can be done (8 East, 545). And if the corporators have been summoned to meet for'one purpose, and part only are present, they cannot lawfully transact other business. The acts of a majority present by accident would not be binding on the corporation (Idem, 546).

To apply these principles to the case under consideration. The meeting of the president and two directors was called informally; not to do a corporate act, but to give sanction to the action of the company’s counsel in compromising the controversy then on trial. No notice of such intended meeting was given. On the contrary, Mr. Berghaus was intentionally left out, as the parties feared that he was in the interest of their adversaries; and when they had started a messenger to notify him he was recalled. The meeting was not only without notice, but at an unusual place, — ■ ihe office of Mr. McCormick. The directors had assembled for the purpose of compromising a controversy, not to make a new contract with the counsel. One circumstance proves pretty conclusively that the gentlemen assembled did not consider they were acting regularly as a board; the resolution approving of the compromise was not acted on there, but was prepared by Mr. McCormick to be submitted to and adopted by the board as soon as it would meet, and was formally adopted on the same day, Bcrghaus being present. It is a settled principle that the assent of every member of a corporation obtained separately is not binding ; they can only perform lawful acts when assembled (Grant on Corporations, p. 80; Vin. Abr. Corp. G. 30, pl. 6; 8 East, 543; Angell, 504; 2 Sand. N. Y. Ch. R. 186). The assembling must be on due notice, not meeting together by accident, or for a different purpose, unless all the members bepresent.

On the trial I considered, and so instructed the jury, that it mattered not when, where, or how a quorum of the directors got together, and whether notice was given to the absentees or not, their acts would bind the corporation; but where a bare quorum met there must be unanimity, else they could make no binding contract. In this part of the charge the authorities clearly show that the court' erred in a manner too favorable for the plaintiff. I was led to the conclusion indicated from the reflection that the law looked rather to substance than to form.; and if a majority of the board concurred, they would do so at all times and under all circumstances; therefore, the corporation lost nothing by the absence of a portion of its directors. It is settled in numerous cases that all of the directors are entitled to notice; for, if present, it is presumed that they might by advice, persuasion, etc., induce the others to arrive at a different conclusion. If notified, and they fail to attend, the acts of the majority of a quorum bind.

From what has been already said, we have great doubts as to whether a quorum met in Mr. McCormick’s office. The board is to consist of a president and five directors. The president has no negative power over the acts of the directors, is not a separate integral part of the corporation, but one of the board. A quorum consists of four directors. The number, from some cause, in the present case consisted of five in all, including the president. Whether it had never been full, or was reduced by accident, we are unable to say; but the 8th section gives the board power to fill vacancies to hold till the next annual election. What shall form a quorum is not changed by a diminution in the numbers. If four were required to be present when six formed the board, the same number must be in attendance when there are but five directors; and should they be reduced to four, all must be met together to perform any valid act. By reducing the number to three, the corporation is dissolved, at least for all legal action, through its directors (Willcock on Mun. Corp. 63; Angell, 506, 507; 3 Barr. & Adol. 843; 24 Eng. C. L. 174; 4 East, 26; 4 T. R. 823; 6 T. R. 268, 278; 16 Eng. C. L. 139; 7 Cowen, 410, notes).

We have come to the conclusion: 1st. That this was not a lawful meeting of the board for want of notice; 2d. If even a quorum had so met, it would not in law be considered a corporate assembly, but a mere action of the individual directors. 3d. That no quorum met so as to lawfully transact business. It has, however, been contended that a contract, such as was proved by Messrs. McCormick and Fleming, could be made by the president alone; that he acts as the agent of the board in transacting ordinary business, and his acts are binding. There can be no doubt at this day that an agent may be employed by a corporation without his authority being conferred by a writing under seal, or by any writing. Not even a resolution of the board is required. If he has generally acted for the corporation, and his acts have been recognized; if it has recovered the benefit of his contract; if the president or any director has ordinarily transacted such business, and the acts been approved and sanctioned, it would oblige the corporation to ratify them, else the public might be misled and defrauded. There is a strong inference in such cases that the agent or officer has full authority. Here nothing is left to conjecture; the precise power of the officers is proved. No agency is alleged or pretended other than what the law confers. The president has only the authority of a director, and we had no evidence that he had ever before made or pretended to make a contract. So conscious was the plaintiff of the necessity of establishing this contract as the act of a board that it was proved the whole three directors mot, and that all sanctioned the arrangement. But it is said that the court erred in instructing the jury that, if Mr. Calder did not know that the plaintiff was acting under a contract, was ignorant that he was sanctioning an alteration in the previous bargain, and did not know what kind of arrangement he was making, it is not binding on the company. It was also argued that as a director he was presumed to know, and bound to know, of the resolution upon the minutes. There can be no doubt as to the legal presumption of every director knowing what the minutes of the board show; but that presumption may be repelled by proof. Here Mr. Calder was called by the plaintiff, and clearly proved his want of knowledge on this subject; that he had never known or hoard of the resolution of the board which formed the basis of the present contract; did not know that he was changing a fixed .bargain, or to what he was changing it; how much he was agreeing to pay, or what contract he was making for the company. In such a case it may be well questioned whether an individual could be bound in his own business; still less could he bind those for whom he is acting in a representative capacity. I think it very clear that in a similar case an executor or administrator would not bind the estate which he represents, and the manager of a corporation could not thus contract for the company. Moreover Mr. McCormick could not have been injured by anything said or done by Mr. Calder. It must be conceded that where one of two innocent persons must suffer, he whose words or silence caused the act, must bear the burden. In this case the plaintiff was not induced to do anything differently, in consequence of what was said in Mr. McCormick’s office by the directors. The proposition for a compromise had been made and the terms proposed by the plaintiff in the suit thus pending, before anything was said about a change in the original contract. It cannot be presumed that the counsel gave their clients any different advice relative to the compromise after the change was made in the amount of fees from what they could have done before. No additional labor or trouble was incurred in consequence of what was thus said. Had the counsel thrown any impediment in the way of a compromise, it would have been good ground for their discharge without fee or reward, as it would have been a violation of duty. Our opinion as to the correctness of the charge in this part of the case has not been in the least shaken by the argument. We still consider that if Mr. Calder did not know or understand the contract he was making, the company is not bound by it.

For the reasons already stated we are also satisfied that the charge was correct in deciding that nothing short of the sanction of a quorum of the whole board of directors, met under the circumstances detailed by the plaintiff’s witnesses, could bind the corporation; and as we now view the law, even that could not render it a valid contract.

We also had great doubts on the trial whether there was any consideration for the promise in this case, but instructed the jury that they must consider the consideration sufficient.

We are of the opinion now that the charge was too favorable to the plaintiff in that particular.

Mr. McCormick proves that at the time of the conversation in his office the three plaintiffs had proposed to take a judgment for $25,000. He advised the company to give it, and they assented. Is was then stated that the compromise must make no difference in the fees; the counsel must have the same as though the claim was thus reduced by a trial, to which the directors assented. It must be borne in mind that a positive contract existed between the counsel and the company. The former were in duty bound to lend their aid in good faith to effect a compromise, and had done it, with the amount of fees fixed and determined. The terms of the compromise were agreed on, and then the bargain for an increased compensation was made. The consideration was past. The company was receiving nothing, and the counsel rendering no service in consequence of the change. We should have instructed the jury that the promise was without consideration and not binding.

I treated the subject as though the service rendered in making the compromise had been without any contract and the company had promised in consideration of past services to make payment, the counsel were bound to render those services in good faith, effect the compromise if practicable, and receive the compensation agreed on. They never could lawfully say the case shall not be settled, or we will render no aid in effecting it. However the corporation may have been bound in honor, it was not bound in law to pay one penny more than was originally agreed on in consequence of the promise proved by Messrs. McCormick and Fleming, and therefore, in no event was the plaintiff entitled to recover more than the amount for which the jury rendered its verdict. If any error exists in the charge, it is in being too favorable for the plaintiff. The motion for a new trial is therefore overruled.

Fisher, for plaintiff.

Fox, BerryhiU, and Briggs, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      December 18th, 1857.
    Strohecker v. Buffington.
    When property is levied upon and sold by tbe sheriff, the costs of sale must be paid in preference to any lien.
    The benefit of the three hundred dollar exemption law can only be claimed against judgments in actions founded on contracts; when a person brings a suit, and is ordered to pay the costs, he cannot take advantage of its exemption.
   By the Court.

The first question we shall consider is as to the payment of the costs of the sale of Strohecker’s property. A fi. fa. issued on Buffington’s judgment, and levy was made on his real properly. A vend. ex. issued, and was stayed. An alias vend. ex. issued to the following term. Whilst that writ was in the hands of the sheriff, afi.fa. issued on the judgment of Know, which was the oldest lien °, inquisition was waived, and the property advertised on both writs. The sheriff returned the sale on the alias vend. ex. in favor of Buffington, which was his proper course, as that writ came first to his hands. The necessary costs of selling must be paid in preference to the oldest lien, as according to adjudged cases, those costs are preferred. They must be incurred before the elder judgment creditor can dispose of the property; consequently he is no loser. Therefore, it is ordered that the prothonotary’s and sheriff’s costs on the fi. fa. and alias vend. ex. shall be first paid. The vend. ex. which was stayed by the plaintiff has no claim in preference to the older lien. The waiver of the claim of the three hundred dollars under the act of April 8th, 1849, when made in favor of the oldest lien, as in this case, will not enable a prior judgment to sell that portion of the estate, or claim the money (1 Ca. 116); although a waiver in favor of a younger lien might have that effect (Bowyer’s Appeal, 9 H. 210). It appears probable, however, that the intention of the court in the later case was to overrule the earlier one, yet by the distinction mentioned they can be reconciled. The most important question in the present case is, whether the defendant can claim the exemption against the judgment in favor of Buffington for costs. A suit was brought by Strohecker, and a decision made in favor of the latter, which carried costs, amounting as taxed to $145.18. Does this come within the provisions of the act? The first section of the act of April 9th, 1849, exempting three hundred dollars’ worth of property from sale on execution, declares, That in lieu of the property now exempt by law from levy and sale on execution issued on any judgment obtained upon contract and distress for rent, property to the value of three hundred dollars, exclusive of all wearing apparel of the defendant and his family, and all bibles and schoolbooks in the use of the family (which shall remain as heretofore) and no more, owned by, or in possession of any debtor,, shall be exempt from levy and sale on execution, or by distress for rent.” This section clearly applies to cases of executions issued on judgments founded on contracts, and none other. It is rather obscurely worded, and not a little tautologous; yet it speaks expressly of judgments obtained on contracts. Light is thrown upon its meaning by the last section, which provides that “ the act shall not take effect until the 4th day of July next, and shall apply only to debts contracted on and after that date.” It is manifest that the legislature intended the benefit should only apply to cases of contract, leaving judgments entered for costs to stand as heretofore, and the party to claim the exemption of the former statutes in such cases. This appears to be perfectly fair and just. When a much larger amount of property was about to be exempt from execution, embracing real estate as well as personal — the former always having been subject to levy and sale under former laws — that it should be applied to cases of contract only, and should take effect on such alone as should be subsequently contracted, leaving men to guard their rights in giving credit. The act in question, applying to cases of contract only, will not protect Strohecker’s real estate from sale for costs incurred by him as a plaintiff in court. Buffington never contracted with him, by which the debt was incurred ; it was without his consent and against his will, and could no more be considered as a judgment founded on a contract, than could an action of trespass or trover for carrying off goods. Therefore, we are of the opinion that Strohecker has no claim for exemption from this judgment, and that the money in court must be awarded to Buffington, after paying off the older lien and all the costs in the case. This opinion must not be considered as applying to a judgment rendered against a defendant for costs in a suit founded on contract, as the person knows that in collecting his debt costs may be incurred. We also abstain from deciding whether the defendant in the execution, after taking a portion of the exemption in personal effects, can claim the residue out of money raised from the sale of real estate. It is quite probable that he can, where the goods prove insufficient in value. It is ordered and decreed that the money in court, after paying off the debt and costs in No. 215, January Term, 1856, shall be applied to the payment of judgment No. 21, April Term, 1856, and if anything remain, that it be paid to Strohecker.


text:
      Court of Common Pleas, Dauphin County,

      December 18th, 1857.
    Swiler v. Casey.
    In an issue directed to try tbe validity of a judgment, no attorney’s fee can be taxed. When a witness attends at the request of a party, he is entitled to his costs. The mileage of a witness must be calculated by the distance by the nearest travelled route to the place of trial.
   By the Court.

This was an appeal from the taxation of a bill of costs in a feigned issue to try the validity of a judgment. The first item of fees objected to is the attorney fee of $3.00. As this is in no sense a suit commenced in court, it does not come within the fee-bill; and even if a verdict had been rendered, no judgment could regularly have been entered thereon; consequently, no attorney fee was chargeable. It must be stricken out. John McFadden is entitled to his fee as a witness. He was subpoenaed by Casey, and requested to attend by Swiler. It has been held by at least one of the judges of the Supreme Court (Coulter) that a witness attending on request is entitled to his pay and mileage, and such has, I think, been the general practice and understanding throughout the State. The witness can, in a case like the present, choose which of the parties he will look to for his pay; and by filing his bill against Swiler, he has elected to demand it of him. Of course the latter must be indemnified by Casey, who cannot insist on paying the witnesses in his own way, nor in any other manner than such as the witness may choose to take from Swiler. Witnesses subpoenaed but not examined, and examined but not subpoenaed, are entitled to pay; and, as has been already said, those who attend on request stand in the same footing. Where a witness is neither subpoenaed nor examined, but attends on request, the court must be satisfied that the party who procured his attendance, did it in good faith,-expecting to require his testimony. We have no doubt that the present witness would have been examined by the plaintiff, had not the defendant called him. Therefore he must be paid; and as he has elected to look to the plaintiff, the bill can be properly charged against the defendant. The mileage of this witness, as taxed, is illegal. He probably need not have travelled over seventy-five miles to reach this place. But he has charged by the way of the railroad to Philadelphia, thence here. We will allow no more than the necessary mileage by the nearest travelled route. The clerk will correct the bill accordingly.

Shell, for plaintiff.

Hawn, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      April 12th, 1858.
    Shaffner v. Fishburn.
    A warranty may be made before, as well as at the time of sale; when one was made two days before the sale of a horse, it is a question of fact for the jury, whether he was purchased upon the strength of it.
   By the Court.

This suit was brought on the warranty- of a horse. The questions raised on the trial were, was there a warranty and a breach ? Both questions of fact. The only matter of law was as to the time of the warranty, and whether it did or did not form part of the contract. When recommending the horse, Fishburn said he “ would insure him sound, solid, and good;” he also said, he would work every place, and would warrant him sound.” Sbaffner then said, he would be over in a couple of days, and would take him if he was as recommended.” A couple of days after, plaintiff visited defendant, and they bargained. Nothing was then said about a warranty, and the court left it to the jury to determine whether the plaintiff purchased the property-on the strength of the warranty made, two days before, with instructions that if he did the warranty was valid. Was this instruction proper? We consider it very clear that the warranty must form part of the contract of sale; but, as we conceive, the authorities decide that it need not be made at the time the bargain is completed. In Ld. Raym. 1120, Holt says: “As to the warrcmtizando vendidit, that will be so, though the warranty be before the sale; as if upon a treaty about the buying of certain goods, the buyer should ask the seller if he would warrant them to be of such a value and to be his own goods, and the seller should warrant them; then the buyer should demand the price, and the seller should set it; and then the buyer should take time to consider for two or three days, and then should come and give the seller his price: though the warranty here was before the sale, yet this will be well, because the warranty is the ground of the treaty and this is warrantizando vendidit.” We find the same doctrine settled in New York in 11 Wend. 584. Savage C. J., says: “ Generally warranties should be made at the time of sale; but, if when the parties are first in treaty respecting the sale, the owner offers to warrant the goods, the warranty will be binding, although the sale does not take place until some days afterward.” That case, like the one under consideration, arose on the sale of a horse. On the trial there was contradictory evidence on several points, but none on the subject of the warranty. The witnesses differed greatly in opinion in regard to the breach, some thinking the horse sound, good, and steady to work, others that he was wind-broken, otherwise unsound, and entirely worthless, or nearly so. The jury were the proper judges as to the correctness or credibility of the witnesses, and their decision should weigh greatly with the court.

Mwmma and MoCormioh, for plaintiff.

H. Abides, for defendant.

It is now contended that by the depositions the defendant has established, that the witness who proved the warranty is unworthy of credit. On consideration that is not made out on anything like legal principles. The evidence of all the witnesses is directed to some particular facts, and not to general character. The story told by the witness is, to say the least, quite plausible, if not highly probable. It seems scarcely probable that one man would purchase a horse from another for his own use and not to sell again, at what the witnesses argue was his full apparent value, without either taking the animal on trial or having a warranty both of soundness and ability to perform the service for which he was about to purchase him.

"We see no legal ground to disturb the verdict in this case. Therefore, the motion for a new trial must be overruled and judgment entered on the verdict, when the jury fee is paid.


text:
      Court of Common Pleas, Dauphin County,

      April 15th, 1858.
    Ryan v. Casey.
    When a judgment is entered with a stay of execution till due, this is an implied waiver of stay after the judgment is payable; if it is revived by scire facias, the same rule exists.
   By the Court.

This application for a stay of execution is made under the 6th section of the act of October 13th, 1857. It appears that the original judgment was entered to April Term, 1849, on a bond with warrant of attorney. The debt bore interest from April 1st, 1848, and fell due on April 1st, 1850, “withstay of execiotion till due.” The judgment was revived by scire facias on the 22d July, 1854, by agreement, and /L fa. issued thereon, No. 73, of April Term, 1858

We are now asked to set aside the fi. fa. on the ground that the defendant has such a freehold as entitled him to a stay of execution under the statute. The only questions presented are, is the stay of execution expressly waived by the debtor on this judgment, or has it been already taken ? If it comes within either category the defendant is not entitled to it. In the original judgment the defendant agreed that he should have a stay of execution until the debt was due. This we consider equivalent to an agreement that the debt should be without stay of execution; an agreement forming part of the original contract, and therefore valid and binding. It was out of the power of the legislature to change it without impairing the obligation of the contract. The stay of execution as much formed part of the contract as the time of payment or amount to be paid. But it is contended that on the revival the defendant is entitled to a stay on the judgment. We do not so construe the law; the words of the statute are, “ debts on which the stay of execution is expressly waived by the debtor,” or “judgment on which a stay of execution has already been taken.” If the defendant has had the advantage of a stay on the original judgment, he cannot claim it again on a revival. If he waived it as to the debt, he cannot afterwards claim it under this act. The revival is not a new judgment, but merely the demand of execution on old one, to which the statute in Pennsylvania has given authority to add the interest due at the time of revival. It remains the same judgment. It is our duty to so construe every statute as to bring it within the constitutional power of the legislature, if practicable. The present act, by a fair construction, does not impair the obligation of contracts. To construe it as urged by the defendant would change the agreement of the parties. From the wording of the 6th section it may admit of doubts as to whether a judgment revived by sai. fa. was contemplated by the legislature in granting a stay of execution; but we decline deciding that question. The application fot a stay is refused; and on the execution being corrected tc conform tc the praecipe as tc the time of computing interest, the sheriff is directed to proceed with the writ.


text:
      Court of Common Pleas, Dauphin County,

      March 11th, 1857.
    Hatfield v. Swiler.
    A summons must be issued at least ten days before it is returnable.
   By the Court.

Under the act of the 20th March, 1724-5, it was decided by the Supreme Court in Fitzsummons, administrator of Salomon, v. Salomon, 2 Binn. 436, that there must be at least ten days between the issuing and return of every summons, else the judgment entered upon it will be set aside. That decision was macle in 1810. From that time until the change of the law in 1836, it may be safely said that the practice in Pennsylvania was universal never to issue a summons, unless there was ten days between the time it was ordered, and the first day of the term to which it was returnable. Some inconvenience wras felt by those desirous of commencing actions against freeholders, who could not lawfully be arrested by a wait of capias, and hence arose the practice of issuing such writ, and directing that the defendant should not be held to bail. Even that was not lawful, as the freeholder could not legally be arrested, though not held to bail, and might refuse to appear to such writ. The commissioners who framed the civil code desired to remedy this inconvenience, as appears from their report made to the legislature (Parke & Johnson’s Digest, p. 805-6 and 7), and for that purpose in the 31 sec. of the act of the 13th of June, 1836, enacted that in case there should not be ten days between the issuing of a summons and the first day of the term to which it is returnable, the writ may be made returnable the next day preceding the last day of such term, or upon the first day of the second term next after the issuing of the writ. They thus provided for every possible case which could occur. Where the term lasted but one week, which is the case in a majority of the counties in the State, the writ could be made returnable on Friday succeeding the regular return day; and where the plaintiff desired to commence his-action within ten days preceding such second return day, he could make his writ returnable on the first day of the succeeding term; thus passing over a regular return day, which could never have been lawfully done before the passage of that act.

If the summons was served ten days before the return day, it was provided that judgment might be taken for default of appearance on such day as the court by its practice might direct, generally on the fourth day thereafter, and it was enacted in the 34th section, that if the writ was not served ten days before the return day thereof, it should be lawful for the plaintiff to take judgment after the expiration of ten days from the time of service, etc. It has been contended that under this section the plaintiff may issue his writ at any time returnable on the first day of the term, and the same is valid, provided he gives the defendant ten days to appear after service. If such was the intention of the law-makers, why were they at the trouble of providing for a second return day, where the writ issued within ten days preceding the first ? or where the time was insufficient before that day transpired, making it returnable on the first day of the second term ?

Ye can readily understand their reason for declaring that where the service was not ten days before the return day, the defendant should have the additional time to appear, as the pressing business of the sheriff would often unavoidably retard the service of the writ, and sometimes it might be difficult to find the defendant. But the plaintiff could always know the time which must intervene between filing his prsecipe and the return day, and give his instructions accordingly. All of these directions as to the second return day, and making the writ returnable on the first day of the succeeding term, are useless, if under the 34th section it may issue at any time, without regard to the number of days which are to intervene before the return day, and judgment be taken after ten days’ service.

In addition to the plain words of the act in this case, we have a clue to the legislative intentions in the report of the commissioners who framed the code. Those gentlemen saw the inconvenience under the former law, and provided a remedy, which was distinctly pointed out in their report made to the legislature accompanying the bill. It is there declared that they have provided for the second return day, and the return of the writ on the first day of the succeeding term by the 33d section (here numbered 31 by two prior sections of the bill having been stricken out), and for the judgment by default after ten days’ service, although there should not be ten days between the service and return day.

This portion of the act has never received a construction from the Supreme Court of the State, and we are probably now called upon to construe it for the first time; for we are disposed to consider the decisions of the District Court for the City and County of Philadelphia, as having relation to the system of monthly return days, peculiar to that city, and one or two other counties.

If the intention of that court was to give a general construction to the sections under consideration, however high our respect might be for the learned tribunal from which the decision emanated, we must take the liberty to differ from it, and construe the law with reference to the former statute, the inconvenience felt under it, the remedy provided by the existing law, and the intention of its framers as set forth in their report. Our opinion is, that the writ issued in this case is not in conformity to law, and however technical the objection it must be set aside. It is ordered that the writ be quashed.

Pawn, for plaintiff.

Briggs, for defendant.

Affirmed by the Supreme Court. 4 Casey, 522.


author: By-the Court.

text:
      Court of Common Pleas, Dauphin County,

      December 18th, 1857.
    Peacock v. Keystone Mutual Life and Health Insurance Company.
    When an appearance was entered on the same day that judgment by default was taken, the judgment is void and will be set aside.
    A narr must be filed before a judgment bf default can be taken.
   By-the Court.

A motion has been made to strike off the judgment in this case as irregularly entered.

1st. Because an appearance was entered on the same day the judgment was taken.

2d. Because no narr was filed before the return day of the writ.

As there are no fractions of a day, we are of the opinion this judgment must be stricken off. We have no means of ascertaining by the record which was first in point of time, the appearance or the judgment; and the record must not rest in parol.

In such case every intendment must be made in favor of a trial by jury and to preserve to the party that right. There has been no default injurious to the plaintiff, or by which he ivas delayed.

The narr was filed and judgment entered according to the rule of court, which, in our opinion, is in conformity with the 33d section of the act of 13th of June, 1836. That law authorizes judgment to be taken on default of appearance on the return day, or according to such rule as the court shall adopt, and only requires that the narr shall be filed, in our opinion, before judgment. The old law ordered that the declaration should be filed five days before the court to which the writ was returnable. Under that law the Supreme Court decided that by long-settled practice judgments were taken, when the narr was filed at any time before their entry, and must be sustained. The present law does not require the declaration to be filed on or before the return day, but before judgment. The Supreme Court declared that the legislature intended to restore the old law. We can see nothing in the act to authorize this decision; but, on the contrary, it is to us perfectly clear that the object of the act of 1836 was to conform to the settled practice by commanding the narr to be filed before judgment. Had the intention been to restore the old law and have it strictly enforced, the new one would have fixed the time for filing five days before the meeting of the court. Our rule of court gives' four days after the return day for the defendant to appear, and in the meantime the declaration must be filed, else no judgment by default can be entered. This is more beneficial for the defendant than the act of Assembly, which gave no time. The default is in not appearing to the writ, not to the narr, which is of no other importance in such a case than to show the cause of action in all after time, and also to enable the amount of the judgment to be liquidated. We shall continue to enter judgments by default under our rules of court as heretofore, and those dissatisfied can sue out writs of error, when the court of last resort will have an opportunity of reviewing the act of Assembly and determining its meaning. If judgment could be taken on the return day of the writ, I grant that all that has been decided would conform to the statute, as the narr must, in that case, necessarily be filed before the return day; but when our rule gives the defendant, ex gratia, four additional days to enter his appearance, it can, in strict conformity with the words and spirit of the law, give the plaintiff the additional time to declare.

Kwnkel and Bimonton, for plaintiff.

Berryhill and Fleming, for defendant.