author: Mr. Justice Sterrett

text:
    Righter, Cowgill & Co. versus The Philadelphia Warehouse Co.
    A. applied to a warehouse company for a loan of money upon the security of certain bills of lading. The company was by its charter authorized to loan money in such cases on such terms as might be agreed oil between the company and the borrowers. The bills of lading were accordingly delivered and the company gave its note to B. for the amount of the desired loan, payable sixty days from date. This note the company itself immediately discounted at the rate of five per cent, per annum, receiving, moreover, $30 additional for its responsibility, its services and the loan of its credit. At the samo time A. signed a written contract which, after reciting the foregoing, provided that, in case lie failed to pay the loan at maturity, the company might sell the collateral at A.’s expense and reimburse itself, deducting moreover from the proceeds a commission on the sale at the rate of two and a half per cent. The company never actually received and stored the merchandise, but had considerable trouble in changing the collateral from time to time. A., having afterwards failed, requested the company to sell the goods. This was done through an experienced commission merchant, and ail account of sale was rendered to A., deducting the amount of the loan, a commission of two and a half per cent and the broker’s commission on the sale. A. objected to the deduction of the last two items on the ground that they were usurious, and, brought suit against the company to recover the amount thereof. Held, that said items were not usurious, and that the only question for the jury was whether or not the broker’s commissions on the sale were reasonable.

      January 5th 1882.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 3, of Philadelphia county: Of July Term 1881, No. 47.
    Assumpsit by William W. Righter and Edward L. Cowgill, trading as Righter, Cowgill & Co., against the Philadelphia Warehouse Co., to recover the disputed balance of an account of sale of collaterals, held by defendant as security for a loan to plaintiffs.
    On the trial, before Einletter, J., the following facts appeared : — The Philadelphia Warehouse Company was chartered in 1871 by the Legislature of Pennsylvania, with power, inter alia, “ to advance money and credits upon any property within its custody, or upon bills of lading, receipts or certificates representing goods on storage elsewhere, or in transit from one portion of the United States to another ... on such terms as may be agreed upon between the borrowers and said company.” On August 18th 1879 the plaintiffs, who were in the grain commission business, applied to the defendant company for a loan of $6,000, offering as collateral bills of lading for twenty car-loads of wheat. They were informed by the president of the company, “that the company never advanced cash, but would issue their note, which the plaintiffs could get discounted at any bank, or the company would itself discount it at bank rates, £ of 1 per cent.” The plaintiffs accepted these terms, received the defendant’s note at $6,000 at sixty days, which the compauy immediately discounted, giving their check for $5,950, the $50 deducted being interest at the rate of 5 per cent, per annum for sixty days. The plaintiffs paid in cash $30, as provided for in the contract, deposited the bills of lading with defendant as collateral, and signed a contract, the material portions of which were as follows :—
    “ Philadelphia, August 18th 1879.
    “ Invoice op Grain
    Consigned to Philadelphia Warehouse Company By Righter, Cowgill & Co.
    “ 20 ears Wheat, avage. 450 bus., 9,000 a $1.08 . . $9,720 Freight ... off ... . 1,080
    $8,640
    “Having deposited with and confided to the management, custody and charge of the Philadelphia Warehouse Company the merchandise belonging to us, described in the foregoing invoice, and that company having advanced to us upon security of said merchandise, their promissory note, dated August 18th 1879, for six thousand dollars, payable October 17th 1879, receiving thirty dollars for their responsibility and services as above and loan of their credit, now, in consideration of said loan, we do hereby promise and agree to and with the said company, that we will pay to them six thousand dollars, at or before the maturity of their said promissory note, together with all charges for storage, insurance and other necessary expenses on account of the said merchandise.

      “ And we do also agree with the said company to the following terms and conditions as part of this contract:
    “4. In case the said sum of six thousand dollars shall not be paid to the said company at or before the date hereinbefore specified, the said company may thereupon, at any time thereafter, in the discretion of their president, sell or cause to be sold at our expense the merchandise described in the said invoice, at public or private sale, for cash or on credit, and without notice to us, and shall receive the proceeds thereof, which shall be applied to the payment in full of whatever may be then due from us to said company, and of the commissions of the company upon such sale, which shall be 2-|- per cent.”
    Before the loan fell due, the plaintiffs failed. The cars of wheat were arriving from the West, and the plaintiffs requested the defendant to sell the grain at once. In compliance with this request, the defendant placed the bills of lading in the hands of O. J. Hoffman & Co., a commission firm, who took possession of the grain as it arrived, and sold the whole of it, at different times, for an amount exceeding the plaintiff’s debt. Accounts of sales were furnished to the plaintiffs and payments made to. them on account of the surplus from time to time. A final account was rendered by the company to the plaintiffs, showing a balance due the plaintiffs of $244. In this account, the defendants credited themselves with 2|- per cent, commission as per contract, amounting to 0197.96, and also with the commissions of Hoffman & Co. for selling the grain, amounting to 0190.50. The plaintiffs objected to Hoffman’s commissions and to the amount of plaintiff’s commissions, as being usurious, and brought this suit to recover said amounts.
    The plaintiffs presented the following points:—
    1. That the matters shown in evidence, are proper for the consideration of the jury to determine, from the whole evidence, under the instruction of the court, whether the contract made between the plaintiffs and the defendant was in substance and effect a loan at usurious interest; and if the jury from the evidence, under the instruction as aforesaid, shall believe it to have been such a loan, they should find for the plaintiffs, otherwise for defendant, upon that point. Refused.

    2. If the jury believe from all the evidence in the cause produced before and exhibited to them in this cause, that the commissions of 2-|- per cent, charged by the defendant on its contract, was intended to be charged by said defendant as usurious interest upon the loans made by it to the plaintiffs, then the plaintiffs are entitled to recover, and your verdict should be for them for the full amount claimed. Refused.

    8. If the jury believe that there were no services rendered by the corporation defendant to the plaintiffs commensurate with the charge of a commission of two and one half per cent, by said corporation defendant, then the plaintiffs are entitled to recover, and your verdict should be for them. Refused.

    The judge charged the jury, inter alia, as follows: — “The defendant by the fourth clause of the contract had the absolute control of the merchandise pledged, in case the plaintiffs did not pay, or were unable to pay as agreed upon. The defendants had a right to sell the goods themselves, or by another, at public or private sale." There can be nothing clearer than these words. It was in the discretion of the president of the company defendant to do this.
    “ [And the sales were to be ‘ at our expense’ — the expense of the plaintiffs. The defendants were to receive the proceeds of the sales to be applied to the payment of what was due them. And they were to be allowed a commission of two and one half per cent, for this. It is a matter of no consequence to you how much or how little trouble the defendants may have had. It may have cost them little or much; whatever the plaintiffs agreed to give for this service, they are bound to give. No matter how much or how little. They are bound by the contract as they made it. The plaintiffs could pay the $0,000 and take their goods. If they did not, but let the defendants sell the goods, they then cannot claim that two and one half per cent, is too much. They are bound by their agreement. If they had agreed to 50 per cent they would have been bound by it. In addition to the two and one half per cent., the defendants were entitled to the expenses of the sale.]
    “ If Mr. Hoffman’s charges for selling the grain were the fair average charges for such services, then they were part of the expenses of the sales which the defendants were entitled to deduct out of the proceeds, and you ought to allow them to the defendants. If those charges exceeded those usually and customarily charged by the commission merchants in the grain trade in Philadelphia, then the jury should find for the plaintiffs in the difference between the sum charged and the charge usually and customarily paid by the trade.”
    Yerdict and judgment for the plaintiffs for the amount admitted by the defendant to be due, $286.81. The plaintiffs thereupon took this writ of error, assigning for error, inter alia, the refusal of their points and the portion of the charge of the court, quoted in brackets as above.

      Hood Gilpin (Charles Gilpin with him), for the plaintiff in error.

      ■I. Bayard Henry and George Junhin, for the defendant in error.
   Mr. Justice Sterrett

delivered the opinion of the court, January 16th 1882.

If the testimony tended to prove that the transaction between the parties was merely a cloak for usury, and not a bona fide contract, for the storage and sale of the goods, to secure the loan in question, it must be conceded the jury should have been permitted to consider and pass upon the question of fact presented by the plaintiffs’ first and second points: but, we fail to discover, in the provisions of the contract itself, or in the facts and circumstances connected therewith, from its inception to its completion, anything from which the jury would have been justified in finding that it was, in substance and effect, a loan of money at a usurious rate of interest.

The contract of August 18th 1879, is prefaced by an invoice of the merchandise “ deposited with and confided to the management, custody and charge of the ” defendant company. This is followed by a recital that the company has advanced to the plaintiffs, “ upon the security of said merchandise,” its promissory note of same date for six thousand dollars, payable October 17th 1879, and has received “ thirty dollars for its responsibility and services, as above, and loan of its credit.” In consideration of the loan the plaintiffs agree to pay the company six thousand dollars at or before the maturity of the note, together with all charges for storage, insurance and other necessary expenses on account of said merchandise.” Then follows a stipulation, on the part of the plaintiffs, to pay the company for its “ continued responsibility and services in the management and custody of the said merchandise,” in case further time is given, upon their request, for the repayment of the amouut advanced. It also contains several other provisions, intended to define the rights and protect the interests of the parties respectively in certain contingencies.

The note of the company, as recited in the contract, was given and then discounted for the plaintiffs at the rate of less than five per cent, per annum. There was certainly nothing usurious in that; and, if the plaintiffs had kept their promise by paying the six thousand dollars at or before the maturity of the note, they would have been entitled to forthwith resume possession of tlie merchandise pledged as collateral security. That would have ended the transaction, at a cost to them of fifty dollars for discount and thirty dollars for defendants’ services and responsibility connected with the custody and management of the collateral. The discount, as has been observed, was considerably less than the legal rate, and the amount agreed upon and paid for services, responsibility, etc., was certainly not an unreasonable compensation therefor. As appears from the testimony of John Neill, one of defendant’s witnesses, there was-.considerable trouble connected with the care and custody of the collateral. He says there were twenty cars of wheat; “ these bills are called straight, not to order. It was necessary to notify railroad companies that we were holders of bills of lading. ' The collaterals were changed from one to another, and at one time changed to Lehigh Yalley Loan or Stock. I suppose I was employed ten or fifteen minutes each day upon this transaction. These bills of lading were handed over to Hoffman & Co. after plaintiffs had failed, and the matter went out of my hands.”

There is not a scintilla of evidence that the thirty dollars was paid for any other purpose than that expressed in the agreement, and in the absence of proof, neither court nor jury had a right to presume it was intended for anything else. The transaction was strictly within the scope of the business authorized by the company’s charter, viz: “ to advance money and credits upon any property in its custody, or upon bills of lading, receipts, or certificates representing goods on storage elsewhere, or in transit from one portion of the United States to another, or between the United States and any foreign country, or between any foreign country and the United States, on such terms as may be agreed upon the borrowers and said company.” This provision of the charter contains express authority for everything that was done in this case. The learned judge was clearly right in saying that no question of usury could arise out of the discount, or the payment of thirty dollars for services, responsibility, &c.

It was the plaintiffs’ own default that called into active exercise the fourth clause of the contract under which the commissions complained of were claimed. It provides that in case the six thousand dollars shall not be paid at or before the maturity of the note the company may thereupon at any time thereafter, in the discretion of its president, sell or canse to be sold, at plaintiffs expense, the merchandise described in the invoice, at public or private sale, for cash or on credit, and with out notice to them; and shall receive the proceeds thereof and apply the same to the payment in full of whatever may be then due by them to the company, including “the commissions of the company upon such sale, which shall be two and a half per cent.” This provision of the contract was faithfully carried out by tlie company after consulting the plaintiffs as to the best method of disposing of the merchandise. The president of the company employed Mr. Hoffman, an experienced commission merchant, to sell the grain; and the testimony shows that he acted judiciously. There is no complaint as to the time and maimer of selling, and the jury has found that his commissions, claimed and allowed as part of tlie expenses of converting the collateral into money, were just and reasonable. It is very clear, therefore, that Mr. Hoffman’s commissions were a necessary and proper part of the expenses with which the plaintiffs were chargeable; and it is equally clear that the company was entitled to retain, in addition thereto, two and a half per cent authorized by the contract. The testimony tends to show that this was a reasonable compensation for the trouble and responsibility incurred; but, however that may be, it is what the plaintiffs agreed to pay in case a sale became necessary by reason of their default. The third point was rightly refused. The case was well tried, and there is nothing in the charge of the court of which the plaintiffs have any reason to complain.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Davis versus Stuard.
    1. It is not error for tlie court to overrule a motion for leave to file a special plea where the plaintiff would not be estopped by the facts set out in such plea, and the defendant may give the said facts in evidence under the general issue.
    2. A sale of a share in certain oil lands having been effected, the vendee subsequently claimed to rescind tlie contract on the ground of fraud, and brought suit against the vendor to recover the consideration money. The court charged that the pivotal point of the case was whether the sale had been effected by means of false representations, false in fact, and made fraudulently, willfully and recklessly by the vendor. Held, that this instruction did not constitute error.
    3. “Where a vendee seeks to rescind a contract on the ground of fraud, he must indicate his intention to rescind within a reasonable time and without undue delay. It is not error for the court to instruct the jury in general terms that such is the law. If the vendor desires more specific instructions he should secure them by putting proper points.
    4. Where in such case the “vendee has neglected to bring suit to recover the purchase money until tlie expiration of nearly six years after the sale, this circumstance may go the jury to prove a failure upon the vendee’s part promptly to rescind the contract.
    5. In order to prove when the suit was begun, the vendor may in such case put the original summons in evidence.

      January 5th 1882.-
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 2 of Philadelphia comity: Of January Term 1879, No. 262.
    Assumpsit, by John Stuard, against Marcus A. Davis. The narr. averred that in 1865 the defendant induced the plaintiff to pay him $1,000 for the purchase of a one-sixtieth interest in 685 acres of land in 'West Virginia, to be conveyed to a company to be incorporated and known as the Monongalia Land and Oil Company; that defendant represented it was rich oil territory, he having himself visited it and the adjoining territory; that the defendant would pay over said $1,000 to the company, which was composed of responsible men, and that plaintiff should be put in “ on the ground floor,” with the same privileges as the defendants and the other original parties. And the plaintiff, confiding, etc., paid the sum of $1,000, whereas the defendant did not fulfil his representations and promises, etc.
    Pleas, non assumpsit, payment with leave, etc., and a special plea specifically denying the averments of the narr., and setting forth that a deed of said tract of 685 acres was, by order of the stockholders of said company, made to two of their number, who had executed a declaration of trust in favor of the equitable owners, in the proportions owned by them, including the plaintiff, whose $1,000, the defendant paid over to his principals.
    After the. filing of this special plea, in April 1875, the plaintiff executed and tendered to the defendant a conveyance of all his interest in said land, whatever the same might be, and demanded a return of the $1,000, which was refused.
    When the case was called for trial, before Pell, J., before the jury was sworn, the defendant asked leave to file an additional special plea, averring that in April 1868, the plaintiff, being called as a witness before an examiner in a certain equity suit to which the defendant was a party (the plaintiff not being a party) the plaintiff testified on his voir dire that he had purchased said one-sixtieth interest for $1,000, and that he did not expect to receive or recover, from any party to said cause, any of the said sum of $1,000, and that he did, then and there, renounce and disclaim any right or expectation of recovering any portion of said sum from this defendant; whereupon the plaintiff, having thus qualified himself, was admitted as competent to testify, and did testify in said cause.
    Upon objection the court refused leave to file the said special plea. (1st assignment of error.)
    The plaintiff admitted that at the time he purchased the said interest and paid to the defendant the $1,000, the defendant told him that the said 685 acres of land about to be put into the Monongalia Oil Company was portion of a larger tract which the defendant and others had previously purchased. In other respects the testimony on behalf of the plaintiff and the defendant was conflicting, the former testifying in support of the averments of the narr. and that his first knowledge of the alleged deed and declaration of trust in his favor, was derived from the special plea filed in April 1875. The defendant denied all false representations or concealment, and testified that the plaintiff sought the investment — it being a time of general speculation in oil lands — and that the reason why the land was not developed was because the plaintiff and others failed to pay assessments levied by the company on the shareholders to provide working capital. The plaintiff testified that within a few months after he paid the money he demanded of the defendant the certificate in the Monongalia Oil Company which he had been promised, and, failing to get it, lie demanded bis money back. The defendant denied this, testified that lie had paid the 01>000 to the Monongalia Oil Company, and further proved by his counsel (under the general issue),' that plaintiff had testified in 1808, in the equity cause as set forth in the above recited special plea, which the court had refused to allow to be filed.
    The defendant, for the purpose of showing that the plaintiff did not commence his action until April 1871, almost six years after his purchase from the defendant, offered in evidence the summons in this suit, issued April 11th 1871. Objected to; objection sustained; exception. (4th assignment of error.)
    The court affirmed several points presented by the planitiff, substantially to the effect that if the jury found from the evidence that the parties were not on terms of equality to judge of the land, and if the defendant knowingly made false representations to plaintiff, and plaintiff was thereby induced to pay the', money, the verdict should be for the plaintiff; with the qualification, in the answer to each point, if they also found that the plaintiff, when he first discovered the alleged fraudulent misrepresentations, rescinded the contract within a reasonable time.
    In the charge, the court, after referring to the facts, said, inter alia:
    “ I shall leave the testimony to you without review; [but right here is the pivotal point of the case: Was the sale of the share to Mr. Stuard effected by means of false representations, false in fact and made fraudulently or willfully and recklessly by Mr. Davis to Mr. Stuard ?]

      “ The testimony as to the actual value of the land, the indications of oil, the examination made, the value of the land in comparison to other lands, the question of notice given by Mr. Davis to Mr. Stuard of the meetings of the Monongalia Oil Com-party, or of the meetings of the sixty subscribers, is unimportant except as it goes to the question of good faith in the transaction. It is nothing that the land was entirely valueless, that the indications of oil were deceptive, except that its throws light upon the question of Mr. Davis’ knowledge and good faith. You are not to make a new bargain for these parties. You are not to shift the burden of a loss from one innocent party to another. If John Stuard, in the hope of gain, invested his money in this company upon the faith of mistaken representations, honestly made, he must bear his loss. If Mr. Davis, however hopeful or over-sanguine he may have been, made these statements in good faith and honestly, he is not responsible. He is only liable in the event of their being false and having been willfully, recklessly and fraudulently made.”
    Verdict and judgment for the plaintiff for $1,000. The defendant took this writ of error, assigning for error, inter alia, the refusal of the court to allow the special plea to be filed at the trial; the rejection of the offer of the summons in evidence; the instructions of the court in answering the plaintiff’s points, and the portion of the charge quoted in brackets.

      William H. JRuddiman, for the plaintiff in error. —
    The plaintiff failed to show any frairdulent representations. In no part of the evidence can it be shown that the land in which Stuard got an interest is not rich oil territory, nor, if the proper and necessary assessments had been contributed by him and others, that it would not have been productive and valuable oil land. Even if there had been evidence of any false representations, still that was not the “ pivotal point of the case.” The true pivotal centre was: did Stuard promptly, after discovering such representations to have been made, repudiate them and seek to cancel the contract; or did he wait through long delays until it was impossible for Davis to be placed in his original position with respect to the land, and, after a slumber of six years, take steps to rescind. The jury could not fail to have been misled by the portion of the charge assigned for error.
    . The special plea offered at the trial was a valid one, and permissible to be filed under the statute of amendments. If demurrable, it should have been allowed, nevertheless, to pass to that stage of inquiry and adjudication; and not have been summarily refused place in the case at all.
    In any view of the case, it was proper for defendant to put in evidence, as part of the record, the summons which showed when the suit was commenced. Especially was it important, when one of the conspicuous elements of the proceeding was the reasonableness or unreasonableness of the time within which the plaintiff below had asserted his right to rescind his contract or taken steps to recover his money. The summons showing that the suit was commenced just one day within six years after the purchase by plaintiff below, it was the right of the defendant to ask the judge to instruct the jury that, in taking into consideration the question which was left to them to find, whether or no plaintiff had rescinded his contract in a reasonable time, they might and should have regard to the fact of the long delay which had occurred in bringing suit for that purpose.

      E. Gojppée Mitchell {B. H. Haines, with him), for the defendant in error. —
    The special plea was a mere statement of evidence, and, as such, it was properly rejected : Stephen on Pleading 312. If the plaintiff below, had, in another suit in which he was not a party, testified as is alleged in this special plea, that would not be an estoppel against him in this suit, miles v. Miles, 8 W. & S. 137. The defendant did, in fact, offer and submit all the evidence he had of the facts contained in the plea.
    The writ of summons was rightly rejected as immaterial. It was offered to show delay in rescinding the contract. But it was no evidence of that. The bringing of the suit was not the rescission of the contract. Notice of rescission -was given three months after the money was paid, and the cause of action arose then. One has the legal right to wait before bringing suit until the last day of the time allowed by the statute of limitations, and his not suing before that is not evidence against the validity of his claim. There may be good reasons for delay, and in this case the plaintiff was not permitted, because objected to by defendant, to explain the delay. The summons is only evidence of the date of bringing the suit: but that was not the matter in dispute.
   Mr. Justice Trunkey

delivered the opinion of the court, February 6th 1882.

It was not error to overrule the defendant’s motion for leave to file the special plea. If, in an equity proceeding, the plaintiff testified to the facts set forth in the plea, the defendant was not misled or injured thereby so that the plaintiff is now estopped from asserting the truth. That testimony, embodied in a plea, would be no bar to this action. Under the general issue the defendant had the right to prove the facts as set out in the plea, if he could, but the evidence need not appear on the record.

The remark of the court which is made the sixth specification of error, — namely, “ But right here is the pivotal point of the case: Was the sale of the share to Mr. Stuard effected by means of false representations, false in fact and made fraudulently, or willfully and recklessly by Mr. Davis to Mr. Stuard ?” —could not have misled the jury, even if this question was not the pivotal point. It was first in order before any other proof could be considered, and, unless the jury affirmed it, the plaintiff had no right of áctiou. Until this was established, it would have been idle to inquire whether the plaintiff rescinded the. contract and gave the defendant notice of the rescission, promptly or otherwise. The right of Stuard to rescind rested upon the fraud of Davis in luring him into the purchase.

We think the instructions to the jury were correct and properly applied to the evidence. The testimony in support of the plaintiff’s case was of such weight as to .require its submission.

What was said in the answers to points respecting the rescission of the contract and a tender back of the interest purchased, was pertinent and just. Stuard testified that he paid the money in April 1865, and Davis promised to give him a certificate for the share of stock; that from time to time Davis sent him to divers places for the certificate, and on going to them he found no certificate or person to give it; that at last he was sent to the old Ledger building, where he found no secretary or certificate, and at once went to Davis and demanded his money, which Davis refused to give. This was within three months of the time of the purchase, and had it not been disputed, the court should have charged that Stuard had received nothing to return, and that the contract was rescinded in a reasonable time. At a later stage in the trial, Stuard said that he never heard of the alleged declaration of trust till in October or November 1875 ; and if this was true, a tender of the re-conveyance then was sufficient, although the suit was pending. What is a reasonable time or undue delay, when the facts are not disputed, is a question of law to be determined by the court: Morgan v. McKee, 77 Pa. St. 228. When the facts are in dispute, the question necessarily goes to the jury, and if a party wishes specific instructions respecting reasonable time or undue delay, he may secure them by putting proper points. Here no instructions were asked, and nothing was said to mislead.

But one other point seems to require remark. The defendant offered the summons for the purpose of showing when the action was commenced, and urn are of opinion that the offer was admissible. Upon the questions of fraud and prompt rescission the testimony was conflicting. Delay for six years to bring suit would bear against the plaintiff, unless he explained it; while, if the suit was promptly commenced upon discovery of the fraud, it would corroborate his allegation of immediate rescission. In such cases it has been the practice, if the date of bringing suit is not admitted, to show it by producing the writ. It is an item of evidence which a party has the right to have considered. The proof of the alleged fraud and rescission may be so strong, or so weak, that the jury would give no weight to the date of suit in arriving at their conclusion; but the court may not determine this. "'The fourth specification of error is sustained.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Geeen

text:
    Moore and Wife versus Pennsylvania Railroad Co.
    1. A boy of ten years old, bright, intelligent, strong, healthy and of rather exceptional capacity, was sent by Ms parents upon an errand along a street in a populous suburb of a city on which a railroad track was constructed. Ho was run over and killed by a passing train, moving at a very rapid rate of speed without whistle or other signal. The only witness of the accident declared that he saw the boy walking upon the outer ends of the sleepers a single instant before he was struck. The street was of ample breadth and had sufficient side-walks, and the errand upon which the boy was sent did not require him to cross the track at the point where he was killed. In an action by the boy’s parents against the railroad company to recover damages for his death, the plaintiffs adduced evidence which showed the facts to be as above. The court thereupon awarded a nonsuit on the ground of the boy’s contributory negligence. Held, that this was not error.
    3. Cauley ®. Pittsburgh, Cincinnati and St. Louis Eailway Co., 14 Norris 398, approved and followed.
    January 6th 1882.
    Before Siiarswood, C. 'J., 'Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term 1881, No. 179.
    Trespass, by Thomas Moore and wife against the Pennsylvania Iiailroad Company, to recover damages for the death of their son, Thomas B. Moore, caused by the alleged negligence of the defendants’ servants.
    On the trial, before Ludlow, P. J., the evidence on behalf of the plaintiffs was to the following effect: — The defendant’s railroad runs along Trenton avenue, in a populous part of the suburb of Frankford, in the 25th ward of the city of Philadelphia, uninclosed by a fence. The avenue at the point in question is not paved, but there is a sidewalk for pedestrians. The plaintiffs occupied a house on the west side of Trenton avenue, above Orthodox street. About half-past eight o’clock on the evening of April 30th 1879, Mrs. Moore sent her boy, Thomas, a bright lad of nine years of age, on an errand to a store on Orthodox street, east of Trenton avenue, which made it necessary for him to cross the railroad. A few minutes later, his dead body was picked up on Orthodox street, on the west side of and near the track, where he had been dashed by the locomotive of the “ Cincinnati express,” bound south, wliich was running at a very rapid rate, being nine minutes late. At the moment he was struck a local train, coming in the opposite direction, was passing on the other track. A plan of the locality, put in evidence, showed that the boy at the time of the accident was upon the outer edge of the sleepers of the west line of tracks, at a point about twenty-five or thirty feet northward from Orthodox street, and about twenty to twenty-five feet from a telegraph pole against which he was thrown when struck by the engine. It thus appeared that he had not crossed the railroad at the time he was struck.
    Nicholas B. Thomas, the only -witness of the accident, testified as follows:—

      “ I live in Frankford ; I saw accident when Moore’s son was killed; it took place between 8 and 8% p. m.; Cincinnati express ; I was standing on Orthodox street on east side of track; side opposite his house; saw the through line, Cincinnati express, same time train leave Church street station and crossing in opposite direction ; did not take much notice of the up train; I walked across and watched Cincinnati train coming running at great rate of speed ; stood there and watched train running at street crossing; knowing the Cincinnati train was running at great rate of speed and would meet other at crossing, I squatted down to look under train running up .and saw boy on outer end of sleepers walking; the train then was right on him; train struck him; threw him against telegraph ¡role, and around it he went; had to wait for last car of up train to pass, and ran across to where boy was lying on side-walk; train running at thirty-five or forty miles an hour; she was not many seconds coming from ’Whitehall to Orthodox street; no whistle blown; no bell rung; up train was ringing bell; not down train; no fence along line of railroad; no gates; no automatic signals; populous neighborhood; Church street station is regular írankford station for up train; Cincinnati express did not stop there; up train reached crossing first; Cincinnati express was then one hundred yards from crossing; at time Cincinnati express reached crossing, all the up train had not passed ; I was standing on upper crossing, Orthodox street, towards New York; the lad was twenty or twenty-five feet north of telegraph pole when struck; walking on outer edge of sleepers towards Orthodox street.
    By the Judge: “ The boy was on the outer side, on the end of sleepers, walking,' at twenty to tAventy-five feet north of telegraph pole ; he was walking from sleeper to sleeper when I saw Mm; about a second of time from my sight of him and when he was struck ; he was a good height for a boy between nine and ten; he was on the side of the avenue next to iris father’s house.
    “ Question. What precise time was there between your glimpse of the boy and when he was struck ? Answer. Not more than a second ; it seemed as though the train was right on Mm; he was, of course, struck by the outer edge of the bumper.
    “ Telegraph pole about four or five feet from north line of Orthodox "street. On account of the terrific rate of speed of the train, I looked to see if any one coming along was in danger. He could have crossed anywhere, and at right angles; he could cross there as well as anywhere else; it was the shortest route to the store.”
    At the close of the plaintiff’s case, the judge, on motion of defendants, granted a nonsuit, which the court subsequently refused to take off. The plaintiff thereupon took this writ of error, assigning for error the refusal to take off the nonsuit, and filed, inter alia, the following specifications: (3) That it is not negligence for a child nine years of age to cross an unfenced railroad track in the middle of a street within twenty-five feet of a main thoroughfare, across which no gate has been placed, or other appliance for the protection of the people. (4) .Because there was no evidence of concurrent negligence on the part of the plaintiffs, or their child. (6) The question whether there was such contributory negligence was for the jury.

      MacGregor J. Mitcheson, for the plaintiff in error. —
    The boy was not a trespasser; he had a right to cross the track at or near the highway crossing, and there being no affirmative proof that he was warned not to do so, or that he did not use ordinary care, the defendants are liable.
    Although the witness, N. B. Thomas, said the boy was walking from sleeper to sleeper, he also said “he could cross there as well as anywhere else; it was the shortest route to the store.”
    He was doubtless waiting for the up train to pass, and was caught as in a trap by the down train running at a terrible speed, behind time, and neither blowing a whistle nor ringing a bell. These facts were at least sufficient to take the case to the jury: Philadelphia & Trenton R. R. Co. v. Hagan, 11 Wright 244; Catawissa R. R. Co. v. Armstrong 2 P. F. Smith 282; Penna. R. R. Co. v. Kelly, 7 Cas. 372; Reeves v. R. R. Co., 6 Casey 454.

      Wayne Mae Yeagh, for the defendant in en’or. —
    This is the case of a trespasser, to whom a railroad company owes no duty. It is plain that the boy was either using the railroad track as a highway in walking south towards Orthodox street, instead of using Trenton avenue which, ran alongside; or, if he was in the act of crossing the track, he was doing so not at a crossing, and was, moreover, actually loitering on the track to wait for the up train to go by. There was, therefore, no evidence of negligence by the railroad company, and the nonsuit was righty granted: Goshorn v. Smith 8 W. N. C. 289; Cauley v. Railroad'- Go. 11 W. N. O. 164.
   Mr. Justice Geeen

delivered the opinion of the Court, January 23d 1882.

The only evidence in this case, as to the position of the deceased when he was struck, was that given by the plaintiffs’ witness. He testified: “ The boy was on the outer side, on the end of the sleepers, walking at twenty to twenty-five feet north of telegraph pole; he was walking from sleeper to sleeper when I saw him; about a second of time from my sight of him, and when he was struck.” He also said, “ the lad was twenty or twenty-five feet north of telegraph pole when struck. . . . walking on outer edge of sleepers towards Orthodox street. Trees are planted in front of houses; there is a side-walk and trees outside; there is a three or three-and-a-lialf feet walk for passengers to Orthodox street.” At another place he testified: “I squatted down to look under train running up, and saw boy on outer end of sleepers, walking; the train then was right on him; train struck him.” The foregoing being the only testimony as to what the boy was doing at the moment he was struck, it was affirmatively established, and entirely undisputed, that the deceased was walking on and along the track at the time of the accident. He was not on the track at a public crossing, nor was he in the act of crossing. It is true that the railroad track at this place was laid upon the bed of a public street, and hence the right to cross it was not limited to the highway or street crossings. But the boy was walking along the track, and not across it, when he was struck. This he clearly had no right to do. There was an ample side-walk and roadway for all foot passengers and others desiring to proceed in the same direction with the railroad. The boy was sent on an errand to a store on Orthodox street. He had not yet reached that street, but was going toward it. Instead of walking on the foot-walk at the side of the street, or even in the roadway, until he reached Orthodox steet, and then crossing the railroad track, he appears to have diverged from both, if he was at any time upon either, and of that there is no evidence, and walked upon the cross-ties of the railway. This, at least, is all that appears in the testimony given by the plaintiffs, of which there is no contradiction. Of course, in such circumstances, he was a trespasser, and not only put himself in peril by his rashness, but also endangered the safety of any passing trains, and the lives of passengers. We have so frequently held, that in such circumstances there can be no recovery, that it is unnecessary to quote the authorities. As the testimony was entirely undisputed, it was the duty of the court to pass upon it, which they did by directing a nonsuit. In this there was no error. The circumstance that the trespasser in this instance was a boy, ten years of age, cannot affect the application of the rule. The defendant owed him no greater duty than if he had been an adult. They are not subject to an obligation to take precautions against any class of persons who may walk on and along their tracks. In Railroad v. Hummell, 8 Wr. 375, the rule was applied to the case of a child seven years old. And so, also, in the latest case of the kind that has been before us, Cauley v. Railroad, 14 Norris 398, the rule was in no wise relaxed, although the person injured was a boy of tender years. In the first of these cases we used the following language, having reference to the facts in evidence:

But if the use of a railroad is exclusively for its owners or those acting under them; if others have no right to be upon it; if they are wrong-doers whenever they intrude, the parties lawfully using it are under no obligations to take precautions against possible injuries to intruders upon it. Ordinary care they must be held to, but they have a right to presume and act on the presumption that those in the vicinity will not violate the laws; will not trespass upon the right of a clear track ; that even children of a tender age will not be there, for though they are personally irresponsible, they cannot be upon the railroad without a culpable violation of duty by their parents or guardians. Precaution is a duty only so far as there is reason for apprehension. No one can complain of want of care in another where care is only rendered necessary by his own wrongful act.”

This language is entirely appropriate to the present case, with the added force derived from the testimony of one of the plaintiff's that the deceased, his son, was a bright, intelligent boy, strong and healthy, and of rather exceptional capacity, and nearly ten years of age. If the rule against trespassers on railroad tracks is made to depend upon the intelligence and age of the trespasser it is easy to see that the law upon that subject will very soon become involved in inextricable confusion. Seeing no error in this record—

The judgment is affirmed.

Trunkky and Steerett, JJ., dissented.


author: Chief Justice Suarswood

text:
    Fields versus Stokley.
    1. A wooden building, though erected within the limits of a city contrary to law, is not, per se, a nuisance. It may, however, become such, by the manner in which it is used, or allowed to be used.
    2. The mayor of a city is, by virtue of his official position, justified in demolishing a wooden building which, by reason of its construction, position and use, is dangerous to the public safety.
    3. If an action be brought against the mayor for causing such demolition, his official position does not relieve him from the responsibility of proving to the satisfaction of a jury the fact that the building demolished was a nuisance. If, however, he can do so, he is not liable for his act.
    January 6tb 1882.
    Before Sharswood, C. J.,- Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas No. 1, of Philadelphia county : Of January Term 1880, No. 329.
    Trespass, by George F. Fields against William S. Stoldey, to recover damages for tbe destruction of a wooden building belonging to the plaintiff which had been torn down and demolished by defendant’s orders. Pleas, not guilty, and a special plea, to which a demurrer was sustained.
    Defendant then filed an additional plea, all the facts set forth in which were adtnittéd on the trial, to wit: That the defendant was, in September 1876, at the date of the alleged trespass, mayor of Philadelphia, and also a citizen, tax-payer and property owner; that the United States Centennial Exhibition was then in progress at Fairmount Park'; that the plaintiff and others, in violation of an ordinance of councils, had erected on Elm avenue, bordering on the Exhibition grounds, numbers of wooden booths, sheds, shanties and buildings, composed wholly of highly combustible materials, insufficiently provided with chimneys or protected against fire, that of the plaintiff being occupied as a bar-room, and the resort of disorderly persons; that the said premises were in close proximity to the buildings of the city, state, and other buildings of the International Exposition, which were thereby imperilled. That the grand jury made a special presentment to the quarter sessions of the said wooden buildings as common nuisances, dangerous to life and property, whereupon the judge then holding said court, ordered the defendant, as mayor, to abate said nuisance by tearing down and removing said buildings, if the owners thereof, after forty-eight hours’ notice, failed so to do; and the plaintiff, having failed to remove the building in question after notice, the defendant caused the same to be torn down, doing as little damage as he reasonably could, &c.
    ít further appeared on the trial, before Pekoe, J., that the plaintiff bad leased the lots whereon the building in question was erected; that it was so erected wathout a permit from the building inspectors, and without authority from councils, the mayor having vetoed an ordinance which had been passed permitting its erection; the plaintiff and his builder admitted that they knew they were erecting the building in violation of law.
    The plaintiff requested the court to instruct the jury : “ That the defendant acted wholly without authority of law in tearing down the building of the plaintiff, and he is liable for the damage resulting from his commands, and the jury should find a verdict for the plaintiff for the amount of damages which they believe, according to the evidence, ho sustained.” Answer. I do not affirm that point; on the contrary, I negative it, leaving to you the question of nuisance, or no nuisance; then if no nuisance, the plaintiff is entitled to any damage sustained; and if nuisance, if the plaintiff maintained a nuisance there, then he is not entitled to any damages.”
    In the general charge the judge said: “ The first question which arises in this case is, was or was not this building, tlms taken down by the mayor, a nuisance? Was it such a common peril to the welfare of the citizens of Philadelphia, and to all who were to assemble here and visit the great exhibition, to the property exposed to danger, as to amount to a nuisance? .... If you find it to be a nuisance, then 1 say that the defendant must justify himself under the fact that it was a nuisance, and especially acting as the head of a great municipality; acting under the order of a judge of a court; acting upon the presentment of a grand jury, all tend to show that it was not mere private thought or feeling, that he was not prompted to it by any desire to do any particular wrong to this individual, . . . You will look at the whole case carefully, and at the facts and the law as I have given it to you, and if you find the plaintiff was maintaining a nuisance there, then he is not entitled to recover at all, and your verdict should be for the defendant. If, on the contrary, there was no nuisance there, then yon will give such damages as the plailitiff would be entitled to recover under the evidence and facts as they have been testified to here.”
    Verdict and judgmeut for defendant. The plaintiff took this writ of error, signing for error, (1) the refusal of the court to affirm his point, as above, and, (2) “ that the entire charge was calculated to mislead the jury in this, that a wooden building erected on private freehold could be a public nuisance; and that, without conviction on indictment, or a decree of a court, an individual who was a mayor could abate it at his will.”

      David W. Sellers, for the plaintiff in error. —
    A wooden building on private land, even though prohibited by an ordinance of councils, is not, per se, a nuisance. The ordinance gave no one the summary right to tear it down, and no common law right to abate it accrued. If it were so occupied as to become a public nuisance the statute law provides a remedy by indictment; the presentment of the grand jury was a foundation for such indictment, but was no justification for its summary destruction; nor was the extrajudicial order of the judge of the Quarter Sessions to the mayor. No individual has the right to abate a purely public nuisance, i. e., one that does not damage one individual of the community more than another. In such case the fact that the defendant was mayor of the city is no justification. Every man proceeds to abate any nuisance at his peril; if he misjudges, he is answerable in damages. There may be circumstances which do not admit of the delay involved in an appeal to the law for redress, as in case of an existing conflagration ; bxxt this was not such a case. Redress by indictment, under the Crimes Act (Purd. Dig. 336, pi. 108), or by an application for a mandatory injunction to remove the building, under the Inspection of buildings Act of May 7th 1855 (Pamph. L. 464), could have been had without more delay than actually oecuiTed after the presentment of the grand jury. Counsel cited the followixxg authorities: St. Johns v. McFarlan, 33 Mich. 72; Phillips v. Allen, 5 Wright 482; Railroad Co. r. Ervin, 7 W. N. C. 75; Philadelphia v. Collins, 18 P. F. Smith 106; 3 Black. Comm. 5, 6; Brown v. Perkins, 12 Gray 89; Wood on Nuisances, passim.

      Wm. Nelson West, city solicitoi’, and O. E. Morgan, Jr., assistant city solicitor {Rufus E. Shapley with them), for the defexxdant ixx error. —
    Apart from the right of the defendant, as mayor or in his individual capacity, to abate what was a nuisance public and private, his action was justifiable on the ground of paramount necessity. Under the peculiar circumstances attending the holding of the International Expositioxx the danger to life and property caused by the collection of wooden buildings kxxown as “ Shanty-town,” was as great as the danger ordinarily caused by an existing conflagration. In such case the right of a municipal officer or an individual to destroy property is a natural light, founded on the law of necessity. Solus populi suprema est lex. American Print Works v. Lawrence, 1 Zabriskie, 248; Ibid. 3 Zabriskie, 590; Meeker v. Yan Rensselaer, 15 Wend. 397; Jones v. Williams, 11 Meeson & Welby, 176; Davies v. Williams, 16 Q. B. 546; Harvey v. Dewoody, 18 Aide. 252; Hart r. Mayor of Albany, 9 Wend. 571; Gunter v. Geary, 1 Cal. 462; Pierie v. Shieldsboro, 42 Miss. 493.
   Chief Justice Suarswood

delivered the opinion of the Court, January 23d 1882.

It appears by the record before us that it was expressly agreed, after the trial had progressed some time, that all the facts set forth in the special plea, not already proved should be considered as having been proved. The plea, inter alia, avers that the houses mentioned in the declaration and for the removal of wdiich this action was brought were composed wholly of highly inflammable and combustible materials, and were insufficiently provided with chimneys and the usual and ordinary appliances for protection against fire, and were so used constantly, night and day, by drunken and disorderly persons, that the lives, health, and property of citizens were greatly endangered and the public safety imperilled. The question whether they were a public nuisance was fairly submitted to the jury by the learned judge below, and the verdict of the jury in favor of the defendant established that fact. Had the presentment by the grand jury been followed up by an indictment, trial and conviction of the plaintiff below, the judgment thereon would have been that the nuisance should be abated, and would have been a conclusive justification of the action of the defendant. The defendant was the mayor of the city, and charged with the conservation of the peace and the protection of the property of the city. He was the representative of the city. It is true that a wooden building, though erected contrary to law, is not per se a public nuisance. But it may become such by the manner in which it is used or allowed to be used. It is true that a private person not specially aggrieved cannot abate a public nuisance, and especially where a statute provides a remedy for an offence created by it, that must be followed. It is well settled, however, that a private person, if specially aggrieved by a public nuisance, may abate it. In Rung v. Shoneberger, 2 Watts 23, it was held by this court that the erection of a building upon the public square of a town was a public and not a private offence, and may be abated by any one aggrieved. In that case the buildings were removed by officers of the town by virtue of the authority of the town council, and the persons in possession, and who had erected the buildings, had recovered in an action of trespass. The judgment, however, was reversed, Mr. Justice Eogers saying, “ A nuisance, whether public or private, may be abated by the party aggrieved, so that it is ’done peaceably and without a riot. The reason (says Blackstone, 3 Coni. 5) why the law allows this private and summary method of doing justice, is because injuries which obstruct or arrest such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ord inary forms of justice.” The jury, under the charge of the learned judge, has found these buildings to be of that character. The city of Philadelphia was the owner of large and valuable property in their neighborhood. Any hour of the daty or night they were in danger of being set on fire by those who frequented them with the owner’s permission. It is stated as a fact in the special plea, and of course a fact admitted by the agreement, that the public safety was imperilled. Nothing more was necessary to justify the action of the defendant. If the owner or tenant of a powder magazine should madly or wickedly insist upon smoking a cigar on the premises, can anyone doubt that a policeman or even a neighbor could justify in trespass for forcibly ejecting him and his cigar from his own premises? It is true, that a private person assuming to abate a public nuisance takes upon himself the responsibility of proving to the satisfaction of a jury, the fact of nuisance. The official position of the defendant, as mayor of Philadelphia, did not relieve him from his personal responsibility in this respect. Rut he has been sustained by the verdict of the jury, which is a justification of his alleged' trespass. We are of opinion that this case was properly submitted to the determination of the jury, that there was nothing in the charge calculated to mislead them, and that it would have been manifest error if the learned judge had affirmed the plaintiff’s point, and thereby in effect instructed the jury to find a verdict in his favor.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Smaltz’s Appeal.
    1. Courts of equity in this state will grant relief by specific perform anee only when a recovery in damages will be an inadequate remedy.
    3. A. took an assignment from B. of a bond and mortgage, B. agreeing that if A., on foreclosing the mortgage, should be obliged to buy in the mortgaged premises, he would repurchase the same at a price sufficient to save A. harmless. A. did foreclose the mortgage, and was obliged to buy in the premises, but B. refused to repurchase the same. A. thereupon filed a bill for specific performance. Held, that after tendering a deed, an action at law would give the complainant a full and adequate remedy, and that therefore he was not entitled in equity to the relief sought.
    January 6th 1882.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 3, of Philadelphia county: In Equity : Of July Term 1881, No. 28.
    Appeal by Theophilus Smaltz, from a decree of the said court, requiring him to perform specifically an agreement in writing to purchase certain real estate.
    Rill in equity, filed by James Wallace and Sarah Ann his wife, in her right, against Theophilus Smaltz, setting forth that the complainants purchased from the defendant a bond and mortgage, for $1,500, on certain premises situate in the city of Philadelphia; that the defendant simultaneously agreed, in writing, that if the complainants should, upon foreclosure of said mortgage, be compelled to buy in the mortgaged premises, the defendant would thereupon “repurchase said property at a price sufficient to repay the above $1,500, with the arrears of interestand that the complainants were compelled so to bny in the said premises.
    The bill prayed a decree “ that the defendant perform his part of the agreement, and purchase the property mentioned in the said agreement from the said Sarah Ann Wallace, at a price sufficient to repay her the said amount of $1,500, with the arrears of interest.”
    The defendant demurred to the bill, on the ground that there was an adequate remedy at law. This demurrer was overruled by the court, and an appeal to the Supreme Court was quashed, on the ground that the decree overruling the demurrer was not a final decree, and the record was remitted for further proceedings. The complainants subsequently obtained a decree pro confesso, in default of an answer.
    Subsequently, on motion of complainants, the court entered the following decree: — “ And now, May 3d 1881, this clause came on to he heard upon the allegations in the hill contained, upon which a decree pro confesso has been heretofore entered, and which are therefore declared to be true, and the court being of opinion that the complainants are entitled to the decree prayed for in said bill, it is therefore ordered and decreed as follows:—
    “ First. That Theophilus W. Smaltz, the defendant, perform his part of the agreement, set forth in the bill as filed, and purchase the property situate .... mentioned in said agreement, from the said Sarah Ann "Wallace, at a price sufficient to repay her the sum of one thousand five hundred dollars,. with the arrears of interest thereon, to wit, from the first day of July, a. d. 1877.
    “Second. That tbe said purchase money be paid by the said Theophilus W. Sinaltz, the defendant, to the said Sarah Ann Wallace, upon execution and delivery by the said James Wallace and Sarah Ann Wallace, his wife, of a proper deed for said premises to the said defendant.
    “Third. That the defendant pay the costs of this proceeding.”
    The defendant thereupon took this appeal, assigning for error the overruling of the demurrer to the bill, and the said decree of May 3d 1881.

      John G. Johnson, for the appellant. —
    The complainants merely sought a decree for purchase money, for which an action at law, for damages for the refusal to take, or to recover the purchase money, was a full and adequate remedy. A court of equity had, therefore, no jurisdiction : Kauffman’s Appeal, 5 P. F. Smith 385; Dech’s Appeal, 7 Ibid. 467; Weise’s Appeal, 22 Ibid. 354.

      M. H. Stutzbaeh (H. Clap Baines with him), for the appellees. —
    The owners of real estate have burdens and obligations cast upon them by law; they are responsible for the taxes, their goods may be levied on and sold if they refuse to pay them, and in many other ways they can be annoyed; and this, it is evident, the complainants intended to guard against when they purchased the mortgage from the defendant, and the agreement in question was executed. The complainants, who have performed their part of the agreement, cannot be put in statu quo by an action at law, and are therefore entitled to relief in equity to compel the appellant to perform his agreement. Equity considers as done what is agreed to be done, and upon an agreement for the sale of real estate the vendor is regarded as á trustee for the purchaser, and the purchaser as a trustee of the purchase money for the vendor, and a court of equity will enforce the trust: Larison v. Burt, 4 W. & S. 27; Bispham’s Eq. 420-429; Kerr v. Day, 2 Harris 114. The following cases rule that a vendor may come into equity for specific performances to compel a vendee to pay purchase money: Tiernan v. Eoland, 3 Harris 429; Finley v. Aiken, 1 Grant 83; Dalzell <o. Crawford, 1 Clark 155.
   Mr. Justice Mercur

delivered the opinion of the Court, January 30th 1882.

The Act of 16th June 1836 affords specific relief in equity only when a recovery in damages will be an inadequate remedy. That our courts will not entertain equity jurisdiction to give such relief where there is an adequate remedy at law, is well settled. Care should be taken that there be no unnecessary encroachment on the province of the courts of common law: McGowin v. Remington, 2 Jones 63; Strasburg Railroad Co. v. Echternacht, 9 Harris 21; Gallagher v. Fayette County R. R. Co., 2 Wright 102; Clark’s Appeal, 12 P. F. Smith 447. Where a bill by a vendor for specific performance is simply to enforce payment of the purchase money, it will not be entertained : Kauffman’s Appeal, 5 Id. 383; Dech’s Appeal, 7 Id. 467.

The relief sought in this case is clearly wifhin the rule which denies equity jurisdiction. It is to compel the appellant to pay for the land, the sum he agreed to pay therefor, on the contingency which has happened. After tendering a deed, an action at law will give to the appellees, a full, complete and adequate remedy for a recovery of the purchase money, to which they may be entitled. The learned jndge therefore erred in not sustaining the demurrer.

Decree reversed and set aside, and bill dismissed at the costs of the appellees.


author: Mr. Justice Green

text:
    Boteler versus Espen.
    1. Whether the insertion of a clause in a lease authorizing the making of alterations and improvements by the lessee constitutes such a written consent on the part of the lessor as to authorize the filing of a mechanic’s lien against the premises for such alterations or improvements under the provisions of the Act of August 1st 1868 (Pamph. L. 1168), depends upon the question whether the cost of such alterations or improvements is'to be borne by the lessor or the lessee. If by the former-, the consent is sufficient to authorize the filing of such a lien. If by the latter, it is not.
    2. The lessee of a hotel property for five years covenanted, inter alia, to make all necessary repairs, to make no alterations or improvements without the lessor’s consent, and further, to leave all alterations and improvements at the expiration of the term for the lessor’s benefit. The rent was to bo §2,000 for the first year ; §2,500 for each of the ensuing three years, and §8,000 for the last year. The lessee made certain repairs, for which a mechanic’s claim was filed. Reid, that the terms of the lease indicated no intention that the expense of said repairs was to be borne by the lessor, but that on the contrary they were to be exclusively at the expense of the lessee, and that therefore the lien filed was not authorized by the provisions of the Act of August 1st 1868 (Pamph. L. 1168), and should be stricken off.
    January 6th 1882.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas No. 1, of Philadelphia counl/y: Of July Term 1881, No. 80.
    Mechanic’s claim, filed by Joseph C. Boteler, et al., trading as Joseph C. Boteler & Co., against Jacob Espen and Samuel Espen, owners, &c., and James L. Burns, contractor, for $185.75, for painting and glazing done by the plaintiffs on a certain building, No. 1020 Chestnut street, Philadelphia, known as the Clarendon Hotel. The claim averred that said repairs were done “ with the written consent of the said Jacob Espen and Samuel Espen, owners, duly had and obtained. ” The plaintiff filed, with the claim, a copy of a lease of said premises from Jacob and Samuel Espen to the .said James L. Burns, for the term of five years, at the rent of $2,000 for the first year-, 2,500 per annum for the second, third and fourth years, and $3,000, for the fifth year. The lease contained, inter alia, the following clause:
    “ 8. The lessee shall make all necessary repairs to the premises demised, including the roof and windows; shall make no alterations or improvements without the lessors consent, and at the expiration of the term shall leave all such alterations and improvements on the premises, without cost to the lessors.”
    Jacob and Samuel Esj>en obtained a rule to show cause why the mechanic’s lien should not be stricken off the record, which rule the court, after argument, made absolute.
    The plaintiff thereupon took this writ of error, assigning for error the order of the court making the rule absolute.

      Charles C. Lister, for the plaintiff in error. —
    The Act of August 1st 1868 (Pamph. L. 1168) extends the right to file mechanic’s liens for repairs, alterations or additions made by a lessee with the written consent of the owners, a copy of which written consent must be filed with the claim. The statute provides for no particular form of written- consent; and where a written lease, or other paper, shows that the lessor knew of the repairs and consented to them, the statute is satisfied. A fortiori, is this the case where the owner exacts a covenant from the lessee to make certain repairs, as here, viz., to “ the roof and windows-.” This claim is for some of those very repairs, viz., painting, and glazing the windows. That this consent was absolute is shown by the distinction made in the lease between repairs and alterations, further consent being required for the latter. The lien should also have been sustained upon another ground, viz.: — the rent for the first year is materially reduced, being $500 less than the three succeeding years, manifestly, in consideration of the repairs to be made by the lessee. This was held in Hall v. Parker, 8 W. N. C. 325, to give the lease the incident of a building contract or improvement lease, sustaining the lien.

      Wm. W. Montgomery, for the defendant in error. —
    The Act of 1st August, 1868, gives no new right of lien on a landlord’s property for work done for a tenant. The provisions therein on that subject are purely restrictive. No Act of Assembly gives power to a tenant, as such, in any case, to make contracts with mechanics which will give the latter the right to file liens on the landlord’s property. "Where the tenant contracts with the landlord to build, in consideration of compensation to be paid by the latter, either in money, or in use and occupation of the premises, he is considered as an ordinary contractor to build. The test of the right to bind the property of the landlord for work done for the tenant, as laid down in Ilall v. Parker, 8 W. N. O. 325, is, that the work has been done by the tenant for the landlord, with the consent of, and ultimately to be paid for by, the latter. Every case in Pennsylvania which has supported such a mechanic’s claim has been based on this principle. In every one of them there has been a remission of rent in consideration of the buildings, alterations or repairs to be made by the tenant. Woodward <o. Leiby, 12 Cas. 437; Leiby v. Wilson, 4 Wr. 63; Hopper v. Childs, 7 Ibid. 310; Fisher v. Hush, 21 P. F. Smith, 40; Barclay v. Wainwriglit, 5 Norris 191. This case is ruled by Mc-Clintoek v. Criswell, 17 P. F. Smith, 183, and Heed v. Kenney, 4 W. N. C. 450. In the latter case the contract provided that lhe ground was let “ for the purpose of erecting a hotel and opera house, and for no other purpose,” and it was held not liable to a mechanic’s lien against the owner.
   Mr. Justice Green

delivered the opinion of the Court, January 23d 1882.

It is certainly true, that when the landlords in this case exacted from the tenant a covenant that he should make all necessary repairs to the premises demised, they thereby consented that such repairs should be made. But the question that arises is, whether this is the kind of consent, which is within the contemplation of the Act of 1868, subjecting the building of an owner to a lien, for repairs done by the tenant. We held in McClintock v. Criswell, 17 P. F. S. 183, that the consent intended by the act is an absolute consent consistent with the right to do the work on the credit of the building. In that case, it was agreed that the work should be done at the cost of the tenant, and for that reason, we decided that the consent of the landlord must be regarded as a qualified, and not as an absolute consent, .and therefore the act was inapplicable. In other words, the circumstance that the tenant and not the landlord was to defray the expense of the improvement, was conclusive that neither the landlord, nor the building, was to be subject to the cost of the work. In Hall v. Parker, 8 W. N. C. 325, the demised premises were held subject to the lien because, although the tenants were to do the work at their own cost, yet they were to be practically repaid, by an abatement of rent for the first year, from $600 to $5, so that in effect the cost was really to be borne by the lessor. Here also the test of the question was, who was to incur the cost of the repairs ? If the landlord, the building was subject to the lien, but if the tenant, it was not. The particular form of words employed was not regarded, but rather the substance and meaning of the contract. How is it in the present case ? The building leased was the Clarendon Hotel, No. 1020 Chestnut street, Philadelphia; the term was for five years, and the rent was, for the first year $2,000, for each of the next three years $2,500, and for the last year $3,000. By the terms of the lease the tenant was to perform a number of covenants, and amongst the rest, was one by which he agreed to “ make all necessary repairs to the premises demised, including the roof and windows. ” He was to make no alterations, or improvements without the lessors’ consent, and at the expiration of the term, he was to leave all such alterations and improve-1’ ments on the premises without cost to the lessors. There was no express stipulation that the tenant, was to make the necessary repairs at his own cost. But he was to make them, nevertheless, and he was to do this in addition to paying the rent. There was no provision, that the repairs should be made at the cost of the lessors, or that they should be deducted from the rent, or that the rent should be made lower, on account of the repairs being made by. the tenant. The whole amount of the rent was to be paid according to the terms of the lease, and all necessary repairs were to be made. They were not to be made by the landlord, they were to be made by the tenant without any provision for reimbursement. We are of opinion that in such circumstances, the obligation of the tenant to pay the cost of the repairs, is as clear and undoubted, as if words to that effect ■were incorporated in the lease. Had they been written in the lease, the ease would have been the same as McClintock v. Criswell. But in legal effect they are there. The obligation of the tenant to make the repairs includes the obligation to pay for them. It is his covenant, Ms act, and must be performed by him, and necessarily at his cost. Clearly, then, these repairs are not to be made at the cost of the lessors, and that being so, it follows, that the consent given by them, to their being made by the tenant, is not the unqualified consent which, as we have heretofore held, was essential, to subject the building to the operation of a mechanic’s lien, under the Act of 1868. In McClintock v. Criswell, Williams, J., in delivering the opinion of the Court, said : “ It seems to us, that the consent intended by the Act, under which the claim in this case is filed, is an absolute consent — such a consent, as is consistent with the right to do the work, on the credit of the building, though it may not expressly authorize it. It must not be clogged with any such ' condition or qualification as is inconsistent with the right to charge the building with the cost of the work, or which impliedly forbids it.” We can not think that when these lessors required of their tenant, that he should make all necessary repairs, they meant thereby, that he might .do so on the credit of the building. The absolute covenant of the tenant, that he would make the repairs, as well as pay the rent, without any provision for reimbursement, or compensation in any manner, is certainly inconsistent with the right to charge the building with the cost of the work. The suggestion, that the rent for the first year is $2,000, while for the next three years it is $2,500, affords no inference that the difference of $500 was intended as a compensation for the cost of repairs. It would require an express agreement, that the diiference was made on that account to give it such effect, as was the case in Hall v. Parker, supra. The abatement of $500 for the first year, is counterbalanced by an increase of $500 during the last year; but independently of that, it is not at all uncommon to make leases, especially of buildings used for hotel purposes, upon a rising scale such as this, as an inducement to tenants. Being of opinion that it was the intent of the parties to this lease, that the cost of the necessary repairs was to be borne by the tenant, we can not consider the consent of the landlords such as is required to subject their property to a lien for that purpose.

Judgment affirmed.


author: Mr. Justice Turnkey

text:
    Jones versus Manufacturer’s National Bank.
    1. Where a debt is attached, as a general rule, interest is suspended during the pendency of the attachment proceedings. This, however, is not the case where there has been collusion, unreasonable delay, or litigation on the part of the garnishee.
    3. One W. F., who was agent for J. F., kept a bank account in a certain bank, in the name of “ W. F., agent.” The bank discounted certain notes for W. F., and placed the proceeds to his credit ; but the notes were dishonored at maturity. Subsequently, one A. recovered judgment against J. F., and issued an attachment, wherein the bank was summoned as garnishee. The bank pleaded nulla bona, averred that it had no knowledge of J. F., and claimed to set off the amount of the notes discounted by it. The case was afterwards tried on the issues thus raised. Held, that the garnishee was not entitled to the set-off claimed. Held, further, that said garnishee was liable for interest on the funds in its hands from the time of the attachment.
    3. Semble, that in the above case the garnishee was not bound to pay the money to A. until the fact was established that W. F. was agent of J. F. If, therefore, said garnishee had by its plea and answer shown a readiness to pay whenever that fact should be established, it would not have beeu liable for interest.
    January 9th. 1882.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.

      Error to the Court of Common Pleas No. 2, of PJiiladelphia county: Of July Term 1881, No. 101.
    This was a scire facias, issued by W. W. Jones against the Manufacturer’s National Bank, garnishees, upon a judgment obtained by the plaintiff against James Payer. The garnishees pleaded “ nulla bona,” and upon the trial were allowed to show the following matters set forth in their answers to interrogatories :—
    One "William Fayer kept a bank account in the said bank, in the name “ William Fayer, agent.” The bank, in the usual course of business, discounted two notes for him, and placed the proceeds to his credit, against a portion of which he drew checks. At the time this scire facias was served on the garnishees, the amount standing in the bank to the credit of William Fayer, agent, was $912.74. The said notes not having been paid at maturity, the bank claimed to set off the amount thereof against that balance. The bank also set up that they had no knowledge of James Fayer, or that William Fayer was his agent, or that the money to the credit of William Fayer, agent, was the money of James Fayer.
    The jury found the following special verdict, subject to the point reserved, “ whether, under the facts found, the plaintiff is entitled to judgment, and for what amount.”
    “The jury find for plaintiff, and assess the damages at $977.70, of which $913.74 is principal, and $63.96 interest.
    “ The jury find specially that:
    “ First. William Fayer was agent for James Fayer, defendant, at the time of the attachment, December 22d 1879.
    “Second. That the bank, garnishee, did not know for whom its depositor, William Fayer, agent, was agent, either at the time of discounting notes or at the time of the attachment.
    “ Third. That William Fayer, doing business as William Fayer, agent, was insolvent at the time of the attachment.
    “ Fourth. That the set-off of the bank upon the two notes, if the court shall determine that it is to be made, amounts to $810.”
    After argument on the point reserved, the court, being of the opinion that the bank was not entitled to the set-off claimed, and that it was not liable for interest on the amount remaining in its hands during the litigation, entered judgment against the bank on the special verdict, for $913.74.
    Both parties took a writ of error: the bank because the court refused to allow the set-off claimed by them ; and the plaintiff, Jones, assigning for error the refusal of the court to charge the bank with interest on the fund ; the latter being the writ of error in this case.

      Wm. Ilenry Peace (Frank P. Prichard with him), for the plaintiff in error.
    — A garnishee, in order to protect himself from liability for interest, must either pay the fund in to court, or offer to do so, or at least, express a willingness to pay the real owner, and not prolong litigation while he may profit by the use of the fund: Iiushton v. Howe, 14 P. P. Smith, 63 ; Singerly’s Ex’rs <o. Woodward, 8 W. N. O. 339. In this case the bank not only did not express any willingness to pay, but denied the defendant’s ownership, without showing that anyone else had claimed the money, and itself asserted a claim on its own account, which has proved unfounded.

      liobert II. Neilson (Henry G. Olmsted and Aubrey II. Smith with him), for the defendant in error. —
    Interest is either compensation for the use of money, or damages for its wrongful detention. But a garnishee cannot make use of the money attached, for he must always have it ready to pay ; and he cannot be punished for detaining it, for he does so under order of the court.
    As a general rule, an attachment suspends the running of interest: Fitzgerald v. Caldwell, 2 Dallas 215; Mackey v. Hodgson, 9 Barr 468 ; Jackson v. Lloyd, 8 Wr. 82.
    In this case the defendant in the attachment was “James Payer,” whom the bank had never heard of, and the person holding all the indicia of ownership in the thing attached, was “ William Payer, agent.” The bank did therefore the only possible thing, namely, put the plaintiff upon,proof. James Payer himself could not have demanded anything else ; has then his attaching creditor a higher right ? Again; how could the bank pay a depositor’s money into court in a suit to which that de-. positor is not a party ? Our only contention is, that we had a right to have a court pass upon that evidence before we paid out money deposited by one man on a claim against another.' The fact that the bank claimed a right of set-off against this fund can have no bearing upon this question unless it is shown that the proceedings have been thereby prolonged or complicated. This is not pretended. The true question is, could the bank have been required to act otherwise if they had had no such claim ?
   Mr. Justice Turnkey

delivered the opinion of the court, February 6th 1882.

' In foreign attachment the rule is that interest on a debt due by the garnishee to his creditor, as whose property it was attached, is suspended during the pendency of the proceedings: Jackson’s Ex, rs v. Lloyd, 44 Pa. St. 82. This rule does not apply if there has been collusion, unreasonable delay or litigiousness on the part of the garnishee. Where he has not been ready and willing to pay the debt in hip hands to the party entitled, he is liable for interest; and, though he may not be bound to ask leave to pay the money into court to abide the contest, his willingness to pay, and not litigate, must appear: Rushton v. Rowe, 64 Pa. St. 63; Singerly’s Executor v. Woodward, 8 W. N. C. 339.

James Payer, the defendant, did business with the bank in the name of William Payer, agent; and the bank held notes of said William Fayer, agent, which notes had not matured at the date of the attachment, and their proceeds had formed a part of the credit side of the account. Not knowing that James Payer was the principal, the bank was not bound to pay the money to him or his creditor till this fact was, established. Had the answer and plea shown a readiness to pay whenever it should be determined whether Jones, or James Payer was entitled to the money, the garnishee would not be liable for interest. But the garnishee was unwilling to pay the money, claimed the amount of said notes as a set-off, and raised an issue in which it was determined that James Fayer owned the money, that the garnishee was not entitled to the set-off, and that the plaintiff was entitled to recover. The garnishee was a party litigant, and must suffer the consequences of defeat. We are of opinion that judgment should have been rendered for the full amount of the verdict.

Judgment reversed, and judgment upon the verdict for $977.70.


author: Mr. Justice Paxson

text:
    Harmony Building Association versus Berger.
    1. As between a mortgagor of realty, and a vendee at a sheriff’s sale, under the mortgage, a Baltimore heater is-not to be deemed a fixture, nor is an iron frame in the nature of a weather-vane, fastened to the roof, bearing thereon the name of the owner.
    2. The lower story of the premises above mentioned, was used as a store; on the counter were certain marble slabs. Held, that in determining whether or not those were fixtures, the intention of the person putting them in place was to be considered, and submitted to the jury.
    3. Semble, that there may be some articles which are so essentially a part of the freehold, that as between the vendor and vendee, the intention of the owner may be of little weight in determining whether they are fixtures or not. The articles in question in the present case were not, however, of that description.
    January lOtb 1882.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term 1882, No. 15.

      * Trespass, by the Harmony Building Association against George Berger, for severing and taking away from a house which the plaintiff had purchased at sheriff’s saie certain articles alleged to be fixtures.
    On the trial, before Biddle, J., the following facts appeared : The defendant, on December 29th 1873, being the owner of a house and lot, No. 2612 Girard avenue, mortgaged the same to the association plaintiff. The lower room of the house was used as a store, and was fitted with a counter having a marble top, or slabs. Subsequently to the mortgage the defendant put in a stove, of the description known as a Baltimore heater, costing $50. This stove was portable, but was attached to the flue with a pipe, which served to convey hot air to an upper room. The defendant also put on top of the house an iron frame and weather-vane, having on it the defendant’s name, and the letters marking the points of the compass. The association afterwards sued out the mortgage, and purchased the premises at sheriff’s sale. They gave the usual three months’ notice, and proceeded before a magistrate and sheriff’s jury to obtain possession. After a judgment was rendered in plaintiff’s favor, and before possession was delivered to them, the defendant severed and took away the said marble slabs from the counter, the Baltimore heater, and the iron frame and weather-vane. The plaintiffs then brought this suit to recover damages for such removal.
    The plaintiffs requested the court to charge, 1. The defendant having placed the marble slabs on the counters while he was building the house, and afterwards placed and put the heater and iron frame in and to the house as improvements, the same formed parts of the freehold, and, therefore, could not be taken therefrom and removed by him after the sheriff’s sale, of the premises. Refused.

    2. The defendant having mortgaged the premises in question to the plaintiffs, and upon which judgment was obtained, and a writ of levari facias issued, under which the sheriff seized and took in execution the premises, sold and made a deed for the same to the plaintiffs, by which they acquired the title to the marble slabs, heater stove and iron frame, and therefore the defendant had no right to take and remove the same. Refused.

    The court charged the jury, inter alia, as follows:' — “The circumstance of the sheriff’s sale does not distinguish the application of the law from that of any other purchase. You are to determine what the intention of the defendant was at the time the disputed articles were put into the property. Of course it is clear that no man wants to leave a stove— what, in ordinary parlance we call a portable stove. Therefore if you will believe that this was an ordinary stove, which could be readily moved, and you find that there was no intention to make it part of the freehold, the defendant had a right to it. Respecting the so-called weather-vane, which a son of Mr. Berger said was simply his father’s name whirling around on a piece of iron, it is for you to decide whether it was the defendant’s intention to make it a fixture. If any of you were going to buy a house of your neighbor, would you consider, for a moment, a whirling gig of this kind to be a part of it ?
    “ The question with regard to the other article is not quite as easily solved as the first two. As to the marble slabs on the counter, I say to you, that the question is, what was Mr. Berger’s intention when he put it there ? If you believe that he intended it to become part of the freehold, it is realty, and the plaintiffs can recover; but if it was only temporarily placed there they cannot succeed here. Was it such a fixture as would justify any one about to purchase the property to believe, from the circumstances surrounding it, that it was the defendant’s intention to leave it, and not take it away? The evidence upon the subject of the condition of the counter after the slabs were removed, was somewhat contradictory. The sheriff’s officer who levied on the property, and whose attention was called to the counter because it was claimed by the defendant as personalty, said that there was a counter snfficicnt to carry on the business, without the slabs: whereas, the president of the association seemed to think that the counter was built to have the marble tops placed upon it. If you believe that it was complete without the slabs, and that the slabs were put there more as an ornament than for use, and with no intention to make them part of the freehold, then the plaintiffs could not recover for them ; but if, on the other hand, you believe that the slabs were essential to make the counter complete, and were intended to become part of the realty, then the plaintiffs are entitled to a verdict. These three are the only things in dispute. Should you find for plaintiffs, your damages will be simply for the value of the articles. I see no distinction between the rights of a purchaser at sheriff’s sale, and those of a purchaser at private sale, in a case of this kind.”
    Yerdict and judgment for the defendant. The plaintiffs took this writ of error, assigning for error, the refusal of their points, and the portion of the charge above quoted.

      Mennershotz, for the plaintiff in error. —
    Articles specially adapted for use in connection with the realty, and put up for use and actually used and owned in common with the realty are fixtures, whether the question arises between mortgagor and mortgagee, vendor and vendee, or debtor and execution creditor. The articles in this case were of that character: Lyle v. Palmer, 42 Mich. 314; Voorhis v. Freeman, 2 W. & S. 116; Snedeker v. Warring, 12 N. Y. 170; Laflin v. Griffiths, 35 Barb. 58; Winslow v. Ins. Co., 4 Mete. 306; King v. Johnson, 7 Gray 289 ; Iloskin m. Woodward, 9 Wright 42.
    It was error to instruct the jury that the question is, what was Mr. Berger’s intention when he put the marble slabs there ? The secret intention of the owner cannot overcome the appearance to the eye that the thing is part of the freehold: as between landlord and tenant, evidence of intention may be admissible where it would not be as between vendor and vendee: 2 Sm. Lead. Cas. *260; Wadleigh v. Janvrin, 41 N. II. 503.

      Albert T. Qoldbeek, for the defendant in error.- —
    The question of annexation to the freehold is the primary one, and where there is no doubt, it is immaterial what may be the relation of the parties. Things which are clearly and undoubtedly personal chattels cannot be fixtures as between some parties and chattels as between others. But where there is doubt whether things are so annexed as to be part of the freehold or not, the courts will then look into the relationship of the parties, and to the intention of the owner in placing the articles in the realty, to aid the jury in determining their character. The question of intention was properly submitted to the jury in this case, although there could hardly be a doubt that the portable stove and the defendant’s sign, combined with the weather-vane, were portable chattels: Hill v. Sewald, 3 P. F. Smith 273; Seeger v. Pettit, 27 Ibid. 437; Cross v. Marston, 17 Vt. 533; Ileysliam v. .Delito, 8 Norris 506. The rights of the plaintiffs as sheriff’s vendees cannot be distinguished from those of a purchaser at an ordinary sale: Vaughen v. Haldeman, 9 Cas. 522; Penn. Mnt. Life Ins'. Co. v. Thackara, 10 W. N. C. 104.
   Mr. Justice Paxson

delivered the opinion of the court, February 13th 1882.

The defendant was the owner of premises No. 2612 Girard avenue, in the city of Philadelphia, lie occupied the first story as a bakery, the balance of the building as a residence. The plaintiff held a mortgage upon the premises, which he foreclosed, and the property was sold by the sheriff. lie became the purchaser at the sheriff’s sale, and proceedings were instituted under the Act of Assembly to obtain possession. The defendant took away from the premises, as stated in the history of the case, “ the marble slabs from the counter, beater stove out of the chimney, and iron frame attached to the roof,” and this action of trespass was brought in the court below by the plaintiff to recover damages for said taking. The single question presented by the record is, whether the articles referred to were a part of the realty, and passed to the purchaser at the sheriffs sale.

There is no serious dispute as to the stove and the iron frame. The former was what is known as a Baltimore heater, a stove so placed in the chimney as to heat one or more rooms above it. Yet it was only a stove, and no part of the realty. The iron frame was something in the nature of a weather-vane, fastened to the roof, a plain upright rod, with the name of the defendant upon it. The principal object appears to have been to indicate the defendant’s place of business.

The question of the marble slabs was more doubtful. There was evidence that the counter was complete without them, and that they were more ornamental than necessary. Upon this point the learned judge instructed the jury as follows: “ If you believe that it (the counter) was complete without the slabs, and that the slabs were put there more as an ornament than for use, and with no intention to make them part of the freehold, then the plaintiffs could not recover for them; but if, on the other hand, you believe that the slabs were essential to make the counter complete, and were intended to become part of the realty, then the plaintiffs are entitled to a verdict.”

It was contended by the learned counsel for the plaintiff that the above instruction was erroneous, in this, that it gave undue weight to the intention of the defendant; that while, as between landlord and tenant, the intention to annex is the criterion, yet as between vendor and vendee the ruléis not so. As an abstract proposition, this criticism is true to a certain extent. There may be some things which are so essentially a part of the freehold, that as between vendor and vendee the intention of the owner may be of little weight. But this is not such case. The articles themselves were of such an equivocal character as to raise a jury question. Hence the object in placing them there became material, which is all the learned judge intended, and all the jury probably understood by the word “intention.” If the counter was complete without the marble slabs, if they were placed there for the purpose of ornament, they were no more a part of the freehold, and necessary to its enjoyment, than a loose cloth cover would have 'been. In neither case would there have been any attachment to the freehold, and the object and the intention of the owner is to be regarded, in considering the character of the articles. Without going over the learning upon this vexed question, it is believed the foregoing views are fully sustained by the authorities, among which it is sufficient to refer to Hill v. Sewald, 3 P. F. S. 272, and Seeger v. Pettit, 27 Id. 437.

. Judgment affirmed.