author: Mr. Justice Gordon

text:
    New York and Cleveland Gas Coal Company versus Plumer et al.
    1. Certain real estate was sold for a consideration to be paid in instalments the legal title to be retained by the vendor as security until the purchase-money was paid in full when a deed was to be made by the vendor. The time of payment of certain instalments was extended by the vendor. The equitable owner sold his interest to another party who paid him in full for the land. The first vendee did not make his final payments and became insolvent. In ejectment by the assignee of the legal owner, held, that the legal owner was not affected by any of the transactions of the equitable owner ; that one purchasing from him was bound to notice the lien of the legal owner; that the purchaser from the equitable owner had the rights of the latter and no more, and that his purchase conferred upon him no new or peculiar equities.
    ■ .2. Such purchaser stood precisely as an ordinary vendee who buys land subject to a mortgage or judgment and who thereby requires the rights of the vendor and nothing more.
    3. The agreement of the original vendor with the vendee to extend the time of payment could work no possible harm to the terre-tenants.
    November 4th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Stbrrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 249.
    Ejectment by Samuel, A. A. and H. B. Plumer, executors of Arnold Plumer, deceased, against the New York and Cleveland Gas Coal Company, to recover several tracts of land, coal, railroads, &c., situate in Penn township, Allegheny county.
    The facts were found as follows by the court, Stowe, P. J.:
    That the legal title was in F. 0. Negley on the 13th of April 1863, at which date said Negley and wife, by articles of agreement recorded, agreed to convey to Dickson, Stewart & Co. the properties described in the writ, inter alia, for and in consideration of certain annual and other payments, the last of which, for $6600, matured in 1874, with a right of extension of payment for one year longer upon the part of Dickson, Stewart & Co.; that Dickson, Stewart & Co. conveyed the said properties, August 10th 1864, to, Kier, Foster & Kier, they, the said Dickson, Stewart & Co., remaining paymasters of the said purchase-money to said Negley; that the title of said properties by various conveyances and for a full consideration (without any personal agreement to pay any of the payments to Negley as between them and Dickson, Stewart & Co.), finally vested in the defendants by deed of Samuel M. Kier and wife, dated December 31st 1872; that said Negleys, by their deed dated August 5th 1870, recorded October' 26th 1870, assigned to Joseph McKinney the last instalment of purchase-money agreed to be paid by the said Dickson, Stewart & Co. to said Negley, under the said article of agreement, with his personal guarantee for the payment of the same by the vendees, and that said McKinney, by his deed, dated October 26tH 1870, assigned the same to the plaintiffs; that said instalment thus assigned matured in 1874, but that under said articles the vendees, Dickson, Stewart & Co., had the right to extend the payment of said instalment for one year longer, which extension expired in 1875; that the interest on said instalments was paid by the vendees, Dickson, Stewart & Co., personally to the plaintiffs from the date of their purchase of it down to the time when payments thereof ceased; there is no evidence that plaintiffs had any actual knowledge at the time of their purchase, or prior t'o the maturity of the instalment purchased, that said Dickson, Stewart & Co. had parted with their equitable title; that the vendees, Dickson, Stewart & Co., claimed the extension of payment of said instalment as provided for in said original articles from 1874 to 1875, which plaintiffs agreed to; that said plaintiffs, at the request of Dickson, Stewart & Co., extended the time of payment thereof one year, viz., from 1875 to 1876, which extension was without the knowledge or consent of defendants; that said plaintiffs, at the request of Dickson, Stewart & Co., and without the knowledge or consent of the defendants, in consideration of the assignment to them of certain bonds and mortgages, &c., extended the time of payment of said instalment for one other year, from 1876 to .1877, said assignment and extension being under seal, dated May 25th 1876, and recorded; that Dickson, Stewart & Co. became insolvent in 1877, and Robert Dickson and Thomas C. Dickson went into bankruptcy; that said proceedings were so proceeded with that a composition' in full satisfaction of the debts of Dickson, Stewart & Co. was decreed; that in the statement of creditors, the plaintiffs, with their post-office address, and the amount of their secured claim appear as secured creditors, and in the statement of assets the securities held by them are specified, and that they had notices as required by. law of said proceedings; that said plaintiffs made no demand for the valuation by the said court of their said- securities, so as to participate in the said composition; that the securities deposited with said plaintiffs have not all been converted by plaintiffs, nor have they made any effort or demand to have them realized upon, but that $1002.57, in September 1877, came into their hands, and that another sum of $2700.57 remains in the hands of Charles Meyran, which he claims to be held for the use of himself and others, not including plaintiffs; that the plaintiffs have never made any demand on the defendants for the payment of the said instalments assigned; that Felix C. Negley made a voluntary assignment for the benefit of his creditors to Graham Scott, on the 10th of April 1876 ; that the said Graham Scott held no other or greater interest in the legal title to said properties described in the writ than said Felix C. Negley held at the time of his said deed o'f voluntary assignment; that said Graham Scott made conveyance of said legal title to the plaintiff for a nominal consideration.
    Defendants presented the following points, to which are appended the answers of the court:
    1. That the title imparted by the deed of Graham Scott, voluntary assignee, gives no higher title than Scott himself would have had, had such deed not been made, viz., the legal title as security for the unpaid instalment due by Dickson, Stewart & Co. on the original articles in trust for plaintiffs, the holders of suoh obligation.
    Ans. “Affirmed.”
    2. Such conveyance is at any rate without consideration, and void for any further purpose.
    Ans. “Affirmed.”
    3: That the land claimed in this action stands in the relation of surety for the debts of Dickson, Stewart & Co. under the articles between them and Negley, to the holders, the plaintiffs.
    Ans. “ Affirmed.”
    4. That the defendants, as such sureties, are entitled to be subrogated to the securities and evidences of indebtedness held by plaintiffs.
    Ans. “Refused so far as this case is concerned.”
    5. That the extension of the time of payment of the instalment due, accorded by the plaintiffs to Dickson, Stewart & Co. under the assignment of May 25th 1876, was for a valuable consideration, and its effect was to discharge the surety.
    Ans. “Refused.”
    6. That' under the proceedings in composition of the Dicksons, the plaintiffs are precluded from maintaining any personal action against the Dicksons, their debt having been scheduled as a secured claim of which they had notice.
    Ans. “ Refused.”
    7. That their failure to have their securities appraised and their implied assent to the sufficiency of these securities to pay the debts for which they were held, discharged the surety.
    Ans. “ Refused.”
    8. That under the assignment of Negley to McKinney, through whom the plaintiffs claim, the legal title is not a security therefor.
    Ans. “ Refused.”
    9. That the finding of the court should be in favor of the defendants.
    Ans. “ Refused.”
    Defendants excepted to the foregoing answers so far as the same were refused.
    The court then entered the following judgment: “Under the foregoing facts and questions of law raised by the defendants’ points, we think the plaintiffs are entitled to a judgment against defendants for the amount of their claim, and therefore judgment is now directed to be entered for plaintiffs for six cents damages and costs, to be released upon payment to plaintiffs' by defendants of $7111.50 within thirty days from this date.”
    The defendants excepted, and the court overruled the exceptions, when defendants, inter alia, alleged the court erred, as follows : In overruling objections to the admission of the deed of the voluntary assignee, Graham Scott, under which plaintiffs below sought to maintain their ejectment. In finding that there is no evidence that plaintiffs had any actual knowledge at the time of their purchase, or prior to the maturity of the instalments purchased, that Dickson, Stewart & Co. had parted with their equitable title. And in the refusal of the above points of defendants.

      S. Schoyer, Jr., for plaintiffs in error.
    As between the terretenants and Dickson, Stewart & Co., the latter were fully paid by the former, and the debt due by the articles was the debt of Dickson, Stewart & Co., and was rightfully to be paid by them. The plaintiffs below were the creditors, Dickson, Stewart & Co. were the principal debtors, and the land, held in lien by the legal title, was the surety for the debt. We submit that the land, upon paying the debt, was entitled to be subrogated to the position of the vendor of the articles, and have the recourse which he had thereon against the principal debtors: McCormick’s Adm’r v. Irwin, 11 Casey 117 ; Bassett v. Baird, 4 Norris 387; Chamberlain v. Williams, 9 Barr 342.
    The plaintiffs by giving time put it out of their power to make cession to us of their remedies against Dickson, Stewart & Co., and we were thereby deprived of our right of subrogation.
    The plaintiffs were also bound by the composition in bankruptcy. They had due notice and made no objection. The creditor who accepts composition discharges the surety: Ex parte Wilson, 11 Vesey 410 ; Wharton v. Duncan, 2 Norris 43. Having thus put it out of their power, by the extension and by the discharge in composition, to give us the remedies they had possessed against Dickson, Stewart & Co., and having also compelled themselves to accept the collaterals as of the full value of their debt in 1879, they shortly before the commencement of this ejectment, .demanded payment from us, and in default, instituted this suit.

      C. S. Fetterman and Sutton & Plumer, for defendants in error.
    —Negley had alien on the land for his unpaid purchase-money : Stokely v. Trout, 3 Watts 163. An assignment by him of any portion of that purchase-money would also carry with it the security for its payment: Perkins v. Gibson, 51 Miss. 699; 24 Am. Rep. 644; McClintic v. Wise’s Adm’r, 25 Grattan (Va.) 448; 24 Am. Rep. 694. The plaintiffs in error knew that Negley’s transfer was made, expressly subject to the payment of the balance of purchase-money, and that the last payment would not fall due until in 1874 ; yet knowing all these things they saw fit to take a title imperfect and inchoate on its face, and in so doing they took it subject to all the equities as that title stood in the hands of the grantor.
    Dickson, Stewart & Co. being no more than sureties for the payment-of the balance of the Negley purchase-money assumed by defendants, plaintiffs were not bound to look to them alone for their money. If time was granted for the payment of the money, defendants have enjoyed the advantage. If' collaterals were received from the surety as additional security for the payment of the money, defendants have not been injured thereby. The plaintiffs were not bound to exhaust the collaterals before proceeding on their claim.
    Whether Dickson, Stewart & Co. were principal debtors or mere sureties, having assigned to plaintiffs certain mortgages as collateral security for the payment of their claim and afterwards filed their petition in bankruptcy, the plaintiffs were not bound to follow them into the Bankrupt Court, surrender their securities and take a dividend, if any, out of their estate.
   Mr. Justice Gordon

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

The facts of this case of themselves sufficiently resolve all tne questions presented for our consideration, and, at the same time, effectually dispose of any equities supposed to be possessed by the defendants.

On the 13th of April 1863, Eelix C. Negley and wife, by articles of agreement, sold the land in dispute to Dickson, Stewart & Oo. for the sum of $78,880, payable in annual instalments, as therein set forth, and agreed to make a deed to them upon full payment of the purchase-money. Thus was the legal title retained as security for the payment of that purchase-money, and so it must remain until that money is fully paid. Dickson, Stewart & Co. might, indeed as they have done, sell their equity to third parties, but such sale could, in no jot or tittle, alter the standing of the vendor. As to him such parties are but volunteers, for they have come into the transaction on their own motion, for their own benefit, and without his invitation or assent. To him they are under no personal tie or obligation, and he can reach them only through the land which they hold under the condition that they pay the purchase-money. The vendees of Dickson, Stewart & Co. have but the rights of their vendors and nothing more, and by their purchase they have procured no new or peculiar equities. What then does it amount to that Kier, Foster & Kier, when they bought of Dickson, Stewart & Co., were foolish enough, instead of taking upon themselves the payment of the purchase-money which they had in their hands, to trust that matter to their vendors ? Or how is Negley or the plaintiffs, his vendees, to be affected by a transaction to which they were entire strangers. Or to carry the matter one step further, how is it that the defendants, the vendees of Kier, Foster & Kier, have by their purchase entitled themselves to the position of sureties of Dickson, Stewart & Oo. ? As we have already said, as to Negley they are but volunteers; personally, they owe him nothing and he owes them nothing. When they bought they found an encumbrance upon the land which they knew they must pay before they could acquire a perfect title, and they not only had the means in their hands to pay that encumbrance, but.they agreed with their vendors to pay it in common with all other liens against the premises. They did not pay it, and they now set up as a reason why they should be released from their Obligation to pay that the plaintiffs, Negley’s vendees, bound themselves to Dickson, Stewart & Oo. for an extension of the time for payment mentioned in the original articles of agreement. But quaere, what possible harm did this work to them? They stand precisely as an ordinary vendee who buys land subject to a mortgage or judgment, and who thereby acquires the rights of his vendor and nothing more. If the mortgage or judgment is due he has the right to pay it off, and no subsequent agreement for extension of payment between the mortgagee or judgment-creditor and the vendor can affect that right, hence such agreement does him no harm. This is exactly *he position of the defendants; when they bought they knew the legal title was outstanding in Negley, and that to get it they must pay for it. What harm then was done to them by the extension given by the plaintiffs to Dickson, Stewart & Co. ? Their right of payment was not abridged, and whenever they chose to pay they were entitled to the deed. But it is said they would be entitled to more than this: an assignment of the articles between Negley and Dickson, Stewart & Co., in order that through them they might enforce against these parties their agreement with Kier, Foster & Kier to pay this purchase-money. But after the execution and delivery of a deed, what right would remain in Negley or his vendees by which a repayment of the purchase-money could be enforced against any one, and to what purpose would be an ■ assignment ? But let us suppose that such an assignment would keep alive the personal covenants for the purpose of settling equities between these subsequent parties, what would be gained by this roundabout over an action on the agreement between Dickson, Stewart & Co. and Kier, Foster & Kier ? Here was an agreement unencumbered by any stipulations, and one on which the defendants might have proceeded for indemnity, if indeed they had any such right, just as soon as they had paid the purchase-money. It follows, that if they have been delayed in the pursuit of Dickson, Stewart & Co. for indemnity it has arisen from their own neglect, and not by reason of the extension of payment granted by the plaintiffs to the defendants’ vendors.

Now, as concerning the collaterals which passed to the Plumers as a consideration for the extension of the time of payment, it is enough to say that credit was given for all that was realized from them, and that they remain unimpaired by'any act of the-plaintiffs. These collaterals consist of mortgages, held in common with other parties, and, if we are to believe the undisputed testimony, they have been pursued with due diligence and care, and all has been realized from them which care and skill could realize. As regards these, neither Dickson, Stewart & Co. nor their vendees have anything of which to complain.

Furthermore, complaint is made that in the proceedings in bankruptcy against Dickson, Stewart & Co. the defendants neglected to prove their claim, have their securities appraised and thus entitle themselves to a dividend. The answer to this is, that as their securities were sufficient to cover their debt, even by the Bankrupt Act, they were entitled to retain and depend upon them for the payment of their claim. Moreover, it would have been to no purpose to have had the securities appraised, which, including the legal title, in value exceeded their debt. Undér such circumstances they would have been entitled to no dividend.

As to the deed executed by Negley’s assignee to the plaintiffs, the defendants have no standing to complain of that. In the first place, the plaintiffs were entitled to it, for the legal title follows the assignment of the purchase-money as a mortgage follows the assignment of its bonds. In the second place, in the hands of the assignee it was but a naked legal title without value; hence, as the creditors of Negley have no interest to object to the transaction, third parties will not be allowed to interpose.

Judgment affirmed.

Sharsavood, 0. J., dissented.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Palmer’s Appeal.
    1. A. and B., who were the patentees and owners of a patent assigned their interest to a firm of which B. was a member, and in consideration therefor the'firm agreed to pay to A. a royalty on the articles manufactured under the patent. The patent had been recently obtained and had not been fully tested. There was no warranty as to its utility: Held, that as no fraud was alleged the firm assumed the risk of the success of the patent, and while perhaps they were not bound to persevere in its use to their own detriment, it was very clear that if they employed the patented process or any part thereof, they were bound to account according to the terms of the agreement.
    2. The contract was entire and indivisible, and the firm having availed themselves of at least a part of the patented process should account and pay as provided in the contract.
    November 4th 1880.
    Before Sharsavood, C. J., Mercur, Gordon, Trunkey and Sterrett, J J. Paxson and Green, JJ., absent.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 345. In Equity. '
    Bill in equity filed by Jane T. Palmer, administratrix of George Palmer, deceased, against Charles W. Hubbard, James Lippincott, Thomas Bakewell, William Erew, David M. Long and Charles Lockhart, partners, doing business as Hubbard, Lippincott, Bake-well & Co.
    ' Plaintiff filed her bill, alleging: 1st. A contract betAveen her intestate and defendants, of date September 2d 1871, whereby defendants, who are proprietors and operators of a large and extensive axe factory, situate in the city of Pittsburgh, bound themselves to pay to the other party to the contract a royalty of one cent upon each axe manufactured by them by the process described in .certain letters patent therein referred to which had been issued to said George Palmer and 0. W. Hubbard, one of defendants, jointly. 2d. That defendants had manufactured axes, &c., by said process, and, 3d. That defendants had not paid the royalty agreed upon to plaintiff’s intestate, nor to her as his representative, and praying that an account be taken of the number of axes manufactured under said process, and that a decree be entered that defendants pay to her said amount.
    Defendants answered, admitting the execution of the articles of agreement, but denying that they had ever manufactured either axes or hatchets under said process, and denying any liability to pay royalty to plaintiff. A copy of the agreement was attached to the bill and the letters patent were put in evidence.
    After taking much testimony the case was referred to a master, S. A. McOlurg, Esq. The material portions of his report, together with the other facts, will be found stated in the opinion of this court. The case was heard upon exceptions to the master’s report, when the court dismissed the bill, the costs to be equally divided between the parties. From this decree Jane T. Palmer took this appeal.

      S. M. Raymond and D. T. Wilson, for appellant.
    The article of agreement between the decedent and respondents contains no covenant or warranty as to the value of the dies covered by the patent, nor their success in the manufacture of axes, nor as to the quality of the axe when manufactured. There is no allegation of any fraud or misrepresentation by Palmer. On the contrary with full knowledge of what this patent was the respondents entered into the contract. Hubbard, their co-partner was one of the patentees. The agreement did not require the respondents to manufacture under the patent, but it did contain a covenant on the part of respondents to pay one cent for every axe manufactured by respondents by the process of the patent. More inadequacy of consideration is never a.good defence to agreements in reference to patent rights : Bellas v. Hayes, 5 S. & R. 440; Eureka Co. v. Baily Co., 11 Wall. 491; Birdsall v. Perys, 5 Blatch. 255; Lawes v. Purser, 6 E. & B. 930 ; Hall v. Condor, 2 C. B. (N. S.) 20 ; Steam Packet Co. v. Sickles, 10 How. 419 ; Kinsman v. Packhurst, 18 Id. 293; Wilder v. Adams et al., 2 Wood. & M. 329 ; Pitts v. Jameson, 15 Barb. 310 ; Thomas v. Quintard, 5 Duer 80; Banks v. Stolly, 3 McLean 523; Stowe v. Bluy, 2 B. & Ald. 456.
    If then the respondents under this agreement and this patent saw fit to manufacture over 800,000 axes, and could by the assignment and' agreement have defended to a claim for infringement by Palmer, and the respondents still use and hold the patent, and never rescinded their contract, must they not pay the royalty agreed upon ?
    If a party would rescind a contract he must do it in toto. He cannot disclaim it in part and enforce it in part; where the contract is entire the consideration cannot be severed by one: Minor v. Bradley, 22 Pick. 457 If the consideration is single the contract is entire whatever the number or variety of the items embraced in its subject: McClurg v. Price, 9 P. F. Smith 420.
    It cannot be argued that the use of the dies was experimental when the trials thereof extended over two years.

      George Shiras, Jr., for appellees.
    Charles W. Hubbard, one of the defendants,. was joint patentee with George Palmer, and the defendants are assignees of Hubbard. Therefore, independent of the agreement in question, the'defendants had a clear right to use the patent, and this without any liability to account to George Palmer or his personal representative:. Curtis on Patents, sect. 191; Clum v. Brewer, 2 Curtis Cir. C. R. 506, 524; Mathers v. Green, Law Rep., 1 Eq. 29.
    The evidence shows that the use of the dies was experimental. But, it is said, it was too prolonged to be fairly experimental. It must, however, be remembered that the defendants h-ad a large sum of money invested in this enterprise. Furthermore, theexperiments were encouraging and the defendants were hopeful of ultimate and complete success. Again, if they had succeeded in getting this pair of dies to perform their desired function, they might reasonably expect and did hope to succeed with the finishing dies. For a considerable part of the time in question George Palmer was in the service of the defendants ait an annual salary of $2000, his sole employment being to superintend the defendants’ experiments with this patent. Fair dealing to George Palmer required the defendants to give the patent a full trial. The experiments with dies in the end proved unsuccessful, and this part of the patent, like the other steps in the patented process, was demonstrated to be a failure, and had to be abandoned.
   Mr. Justice Sterrett

delivered the opinion of the court, November 26th 1880.

The claim of appellant, as presented in her bill, is based on the written agreement of September 2d 1871, between her intestate, George Palmer, and the appellees, Hubbard, Lippincott, Bakewell & Co., coupled with the averment that under the letters patent, referred to in the agreement, the appellees had manufactured a large number of axes.and hatchets for which they refused to account and pay according to the terms of the contract.

•The agreement recites that, on August 22d 1871, the letters patent for certain devices and processes to be used in the manufacture of axes, were granted by the United States to George Palmer and Charles W. Hubbard, who, on the date of the agreement, assigned their entire interest in the patent to the appellees, Hubbard, Lippincott, Bakewell & Co., of which firm, Mr. Hubbard, one of the patentees, was a member; and that, in consideration of the assignment, the firm agreed to “ keep a true and correct account of all the axes and hatchets manufactured by them by the process described and claimed in said letters patent, and on the first day of July and January in each and every year during the term of said letters patent, after the first day of January 1872, render unto the said Palmer a true and correct statement of the number of axes and hatchets manufactured by the process aforesaid, and pay him as royalty one cent for every axe and hatchet so manufactured by them.” The contract also provides that the parties shall agree on such sums as to them shall appear reasonable to be paid as royalty on axes and hatchets made between the date of the assignment and the first day of January 1872.

There was no question as to the execution of the agreement; and the master found, inter alia, that the appellees experimented in the use of all the processes included in the patent, but some of them failed to answer the purpose for which they were intended, and were not used by them in the manufacture of axes and hatchets; “ that they did use the process or device indicated by figures 1, 2 and 3 in the letters patent, from the date of the agreement until July 1st 1873, welding and shaping with the drop and die in the manner described in the patent,” and during that time manufactured 418,936 axes, as follows, viz.: from September 2d 1871 to January 1st 1872, 50,215 axes; from January 1st 1872 to July 1st 1872, 120,104 axes; from July 1st 1872 to January 1st 1873, 116,075 axes, and from January 1st 1873 to July 1st 1873, 132,482 axes. He also found that for 16 months, from the last-mentioned date, the appellees manufactured no axes or hatchets under any one of the patented processes or any part of them ; that from November 1st 1874 until the bill was filed, they used the same die and drop only for the purpose of shaping or straightening the axe pole after welding it under the trip-hammer, but did not use the same for both welding and shaping as they had done prior to July 1st 1873 ; that, in consequence of frequent mis-welds, the use of the die was wholly abandoned for the sixteen months immediately preceding November 1st 1874, and was not used after that date except for the purpose of shaping or straightening the axe poles. He further found that dies for straightening, swaging and rough shaping the pole were used before the letters patent were issued, and have since been largely in use by other manufacturers.

The foregoing are the facts found by the master so far as in his opinion they were pertinent to the issue, and upon them he held that the appellees were liable to account and pay the royalty on all axes manufactured under the patent, as aforesaid, from January 1st 1872 to July 1st 1873, viz.: 368,936 axes, at one cent each with interest, from the respective dates on which accounts should have been rendered according to the terms of the agreement; but he refused to charge them with any royalty on the 50,215 axes manufactored between the date of the agreement and January 1st 1872, for the reason that there was no evidence before him from which he could determine how much, if anything, should be paid.

The learned president of the common pleas being of opinion that the conclusions of the master were “ not sustained by the principles of equity,” refused to adopt his report, and made a decree dismissing appellant’s bill and ordering each party to pay one-half of the costs. This is assigned for error.

The ground on which the bill appears to have been dismissed is, that in manufacturing axes the appellees did not use the entire process described in the letters-patent, and that appellant is not entitled to any compensation for the use of such parts of the process as were employed, because they were practically valueless, and cost the appellees, in their attempt to utilize them, more than they were worth. This view of the contract we think was erroneous. The patentees first assigned their interest in the letters-patent to the firm of which one of them was a member, and in consideration thereof the firm at the same time contracted' to pay Palmer the stipulated royalty for his.interest in the patent. The transaction was practically a sale of the patent to the appellees, coupled with the contemporaneous agreement on their part to pay Palmer one cent for each axe manufactured under the patented process or any part of that process. There was no warranty as to the validity or utility of the patent, nor is it pretended there was any fraud in the transaction. The patent had been but recently obtained and had not then been fully tested. The appellees assumed the risk of its success. The agreement evidently contemplated the use of the patent by them in their business of manufacturing axes, and while perhaps they were not bound to persevere in its use to their own detriment, it is very clear that if they employed the patented process or any part thereof, they were bound to account according to the terms of their agreement. They might not find it advantageous to use all the mechanical devices covered by the patent; but, according to what must be regarded as the true interpretation of the contract, the employment of one or more of them was a manufacturing “ by the process described and claimed in the letters-patent.” It could never have been contemplated by the parties that the omission by the appellees to employ one or more of the devices or processes described in the patent, would entitle them to use the others free of •charge, or by paying therefor according to a quantum valebant basis. The contract is entire and indivisible, and the appellees having availed themselves of at least a part of the patented process should account and pay as provided in the contract. In the words of the learned master, “ having elected to use even one of the three patented processes under the agreement, they must pay the royalty as provided therein. It is immaterial that this part of the patented process was unsatisfactory. They must pay for second as well as first class axes manufactured in this way. The language of the agreement is “ every axe manufactured.” The conclusions of the master are sustained by principles recognised in the following cases, viz.: Lawes v. Purser et al., 6 E. & B. 930 ; Hall v. Condor et al., 89 E. C. L. R. 20 ; Birdsall v. Perys, 5 Blatch. 255; Kinsman v. Parkhurst, 18 Howard 289 ; Vaughan v. Porter, 16 Vt. 270, and Bellas v. Hays, 5 S. & R. 427. In the last case, Judge Gibson, speaking of the uncertain value of a patent, says : “ Where a particular fact is known to be doubtful,.or supposed to be so, if the party to be benefited neglects to secure himself by a covenant, he will be without remedy if it turns out contrary to. his expectations, for he will be considered as having paid his money for the benefit of a chance. It would seem to me that whether the invention, which is the subject of the plaintiff’s patent, .were valuable or not, was in its nature doubtful, and that the defendant took the risk of that matter on himself.”

The master having found that the only use made of the drop and die after the 1st July 1873, was for shaping and'straightening, concluded that this was not a using under the patented process. In the language of his report, “ taking into account the fact found, that drops and dies were already in use for the purpose of shaping and rough-swaging, and the language of the letters-patent that the process patented is that of shaping and welding by the same bloiv, it is plain that the subject-matter of the agreement is not the use of a die simply for shaping, and consequently defendants’ use of the drop and die for shaping alone is not a manufacturing of axes under the patented process.” While this conclusion is not quite so clear to us ás it appears to have been to the learned master,we cannot say he was in error.

On the whole we are of opinion that the conclusions of the master were quite as favorable to the appellees as they could justly claim, and that the decree recommended by him should have been adopted. The finding was that the appellees should pay appellant a royalty of one cent each on all the axes manufactured between January 1st 1872 and July 1st 1873, viz. : Three hundred and sixty-eiglu thousand nine hundred and thirty-six axes, amounting to ($3689.36) three thousand six hundred and eighty-nine dollars and thirty-six cents, with interest on $1201.64 thereof from July 1st 1872, .on $1160.75 thereof from January 1st 1873, and on $1324.82, the residue thereof, from July 1st 1873, amounting in all, with interest to this date, to five thousand four hundred and thirty-two dollars and forty-five cents ($5432.45).

Decree reversed ; and it is now adjudged 'and decreed that the appellees, defendants below, pay to the appellant, plaintiff below, the sum of five thousand four hundred and thirty-two dollars and forty-five cents ($5432.45), and that the said appellees pay the costs, including the costs of this appeal.


author: Mr. Justice Trunkey

text:
    Heinemann’s Appeal.
    1. The general rule is that the father is entitled to the custody of his infant children but it is a mistake to suppose that the father has an absolute natural right to the custody of the infant.
    2. When a court is asked to appoint a guardian of the person of a child, it will investigate the circumstances and act according to a sound discretion, the primary object being the good of the child.
    3. Under the Act of May 4th 1855 the Orphans’ Court may appoint a guardian for a child, its mother being dead, whose father shall for any cause neglect or refuse to provide for it. Where the petition therefor is substantially within the words of the statute, it is enough to bring it within the jurisdiction of the court.
    4. It appeared that a father neglected to provide medical treatment for his wife and throe children, all of whom died: Held, that the court properly appointed a guardian for the two remaining minor children.
    November 4th 1880.
    Before Siiarswood, 0. J., Mercur, Gordon, Trunkey, and Sterrett, JJ. Paxson and Green, JJ., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1880, No. 229.
    Appeal of Charles Heinemann from the decree of the court in the matter of the petition of Catherine Reineman, praying for the appointment of a guardian for the two minor sons of said appellant.
    The petition of Catherine Reineman set forth that she is the maternal grandmother of Osmar and Eugene Heinemann, who are minor children of' Charles Heinemann; that the said Charles Heinemann, by reason of indolence, ignorance, stubbornness, or some other cause unknown to your petitioner, has neglected and refused to provide for his children; that Matilda Heinemann, the mother of said children, is dead. The petitioner therefore prays the court to appoint a guardian for said Osmar and Eugene Heinemann, to perform the duties provided for by the Act of Assembly, &c.
    Charles Heinemann filed an answer to this petition denying the allegations of the petition. Testimony was then taken before the Orphans’ Court, whereby it appeared that in December 1879, the respondent had a wife and five children; that on the 22d of said month the oldest child, about nine years of age, died of diptheria; that on the 27th of the same month the wife of respondent had died; that shortly thereafter a second child died, and that some months thereafter the youngest of the children had died, all of the same disease. It appeared also that during the sickness of his wife and children respondent had refused to call in a physician to attend them, or to provide any medical treatment for them except that practised by himself, called the Bannscheidt system, which consisted in pricking the skin of the patient on different parts of the body with an instrument composed of about thirty needles, and operated with a spring, and then rubbing the parts thus pricked with an irritating oil. It was also shown chat the respondent was in indigent circumstances, and that the minors had to be supported out of their own estates.
    The third section of the Act of May 4th 1855, Pamph. L. 430, Purd. Dig. 411, under which the proceeding was instituted, is as fellows:
    “ Sect. 3. Whensoever any husband or father, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his child or children, the mother of such children shall have all the rights and be entitled to claim, and be subject to all the duties reciprocally due between a father and his children, and she may place them at employment, and receive their earnings, or bind them to apprenticeship, without the interference of such husband, the same as the father can now do by law : Provided always, that she shall afford them a good example, and properly educate and maintain them according to her ability; and provided, that if the mother be of unsuitable character to be intrusted as aforesaid, or dead, the proper court may appoint a guardian of such children, who shall perform the duties aforesaid, and apply the earnings of such children for their maintenance and education.”
    The court entered a decree appointing a guardian for the persons of the minors from which this appeal was taken. .

      Barton & Sons, for appellant.
    The court had no jurisdiction, because the petition did not aver specifically some act of commission or omission on the part of respondent to justify taking from him the custody of his children. The evidence did not sustain the allegations of the petition.

      Kennedy & Doty, for appellee.
    The Orphans’ Court has general jurisdiction of the matter: Story’s Eq. Jur., sect. 1341, 10th ed. 595; White & Tudor’s Lead. Cas. in Eq., vol. 2, part 2, p. 1416.
    The Act of Assembly of March 29th 1832, establishing our Orphans’ Court, amongst other provisions has the following:

      “ Sect. 5. The Orphans’ Court of each county shall have the care of the persons of minors resident within such county, arid of their estates, and shall have power to admit such minors, when and as often as there shall be occasion, to make choice of guardians, and to appoint guardians for such as they shall judge too young or otherwise incompetent to make choice for themselves.”
    Here, then, we have the jurisdiction of the court fully shown. First, in its general equity powers. Then, by the express provision of the Act of 1832, above quoted, and then, as though it might be feared, all cases were not covered or embraced in the powers of the court or under its control, the Act of 1855 was passed providing whensoever any husband or father, from drunkenness, profligacy or other cause shall neglect or refuse to provide for his child or children, &c., the court may appoint a guardian of such child or children. There can be no question as to the jurisdiction of the court; the only one being as to the time and circumstances of its exercise. Upon this we cite In re Goldworthy, 19 Moak 215 and notes and cases there cited; Cowls v. Cowls, 3 Gilman 436; Garrer v. Gordon, 41 Ind. 92; Ex parte Waldron, 13 Johns. 418 ; United States v. Green, 3 Mason 482; Commonwealth v. Addicks, 2 S. & R. 175; Commonwealth v. Barney, 29 Leg. Int. 317 ; Commonwealth v. Smith, 1 Brewst. 547; Commonwealth v. Nutt, 1 Bro. 143; Commonwealth v. Bigelow, 1 Leg. Chron. 291.
   Mr. Justice Trunkey

delivered the opinion of the court, November 15th 1880.

The general rule is, that the father is entitled to the custody of his infant children, that right growing out of his obligation to maintain and educate them. But this is not on account of any absolute right in the father, but for the benefit of the infant, the law presuming it to be for its interest to he under the nurture and care of its natural protector, both for maintenance and education. It is a mistake to suppose that the father has an absolute, vested' right to the 'custody of the infant: United States v. Green, 3 Mason 482. When a court is asked to appoint a guardian of the person of a child, it will investigate the circumstances and act according to a sound discretion, the primary object being the good of the child.

'Under the Act of 1855, Pamph. L. 430, the Orphans’ Court may appoint a guardian for a child, its mother being dead, whose father shall, for any cause, neglect or refuse to provide for it. After a full hearing that court appointed a guardian of the persons of the appellant’s children, which act is alleged to be error. Objection is now made that the petition did not aver specifically any act of commission or omission on the part of Charles Heinemann, to justify a decree taking from him the guardianship of his children; but in the court below he answered, without suggesting a defect, and the case was heard on its merits. The petition sets out enough to bring it within the jurisdiction of the court, being substantially in the words of the statute.

These children are aged respectively eight and five years, and are too young to be consulted respecting their guardianship. They have some estate, and it appears to be necessary to support them out of it. That their father is in indigent condition is no reason for depriving him of the care and society of his children, if he is a suitable person to have their custody. Unless in a matter of importance they would likely be injured if in his charge, he should have them, even if unable to maintain and educate them without an allowance from their estates. Yet his inability to support them must be considered with other fact§. It is not suggested that the guardian appointed is in any way unfit for the duties ; nor that he denies the father the right of visiting his children; nor that they are not in a proper place for their education. The appellant alleges that he “found out on the hearing that he was guilty of no particular dereliction of duty as a father, as to the two boys named in the petition, but that his supposed offence ■ consisted in the fact that he had not entire faith in the infallibility of the old school of physicians.” He further says that the height of his offending lies in the fact that he is a convert to the exanthematic method of healing, discovered by Dr. Carl Baunscheidt. If the decree was based on that cause it was a grave mistake, one which we are not satisfied the court committed.

An examination of the testimony shows that the appellant’s conduct towards his family must have been the moving cause for the decree. While the evidence reveals that he had no faith in allopathic physicians, it also reveals that he had neglected to call any others for his wife and three children who had died within less than seven months prior to the hearing. He may have been an affectionate husband and father, and have done what he thought was' best, yet according to the evidence they were shamefully neglected as regards medical treatment. His oldest child was the first to die, after having been very sick for several days, but he sent for no physician. For the others he employed no physician at all, except allopathic, and did not call them till death was at the door. He himself practiced the exanthematic treatment on his sick wife and children, although he makes no pretensions as a practising physician, and says, through his counsel, that he is a simple journeyman mechanic. When the physicians were called their directions were disregarded, but probably that made little difference, for they were called so late. There were two practising physicians, .Charles and Leithead, in Pittsburgh; as appellant informs us, who use the mode of treatment he believes in, but he called neither. Doubtless, he thinks, the Baunscheidt panacea as good in his own hand as any other. He has used it on his two surviving children, and should they become ill and he have opportunity, he would be as likely to apply the treatment to them as he was to those which are dead, and as unlikely to call any physician, of any school, qualified for his business. His own testimony shows no change in his mind as to the medical treatment of his family. Nor does' it appear.that he so plies his trade as to be able to provide for his children, but on the contrary, he expects the' guardian of their estates to furnish means for their maintenance.

Upon the whole case we are not convinced that the court erred in making the decree. •

Decree affirmed, and appeal dismissed at costs of appellant.


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    Appeal of the Pennsylvania Lead Company.
    1. Where a business complained of is a dangerous nuisance and the injury is continuous and cumulative and the mischief irreparable, a court of equity will enjoin the prosecution of such business.
    2. Where it appears that works for smelting lead are of such a character injury inflicted of such nature a court of equity will restrain their
    November 5th 1880.
    Before Sharswood, C. J., Mercur, Gor-Trunket, Sterrett and Green, JJ. Paxson, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 50. In Equity.
    Bill in equity filed by Joseph P. McIntyre against the Pennsylvania Lead Company.
    The bill in substance alleged: 1. That complainant has owned, since April 12th 1871, a certain farm, situate in Robinson township, in Allegheny county, containing about forty-six acres. 2. That prior to the unlawful acts of the defendant complained of, the said farm was a fertile tract, and used for farming purposes. 3. That some time in the year 1873, the defendant corporation acquired a piece of land adjoining said farm on the westerly side thereof, and erected thereon smelting works, for the smelting of lead and other minerals; said Works being located within about seventy-five feet of the said farm. 4. That shortly after the completion of said works, the defendant company commenced operating the - same for the smelting of lead and other minerals, and has since continued so to do, and intends so to do in the future. 5. That the said works are so constructed and operated as to emit from the stacks and chimneys thereof offensive, noxious and poisonous gases, fumes and vapors; and are so located that said gases, fumes and vapors descend and rest upon said farm. 6; That the said gases, fumes and vapors have injuriously affected and are injuriously affecting said farm; that they have poisoned and are poisoning the soil and the vegetation and products of said farm, rendering the latter unfit for consumption; that portions of said farm have already been blasted and rendered barren, and the.vegetation thereon destroyed; and this mischief is continuous, and will continue so long as the defendant’s said works are operated as aforesaid. 7. That the said gases, fumes and vapors are injurious to cattle grazing upon said land or eating the products thereof; and plaintiff is informed and believes that horses and cattle have died from grazing and eating' the fodder from said farm, poisoned by the gases, fumes and vapors', aforesaid. 8. That the gases, fumes and vapors aforesaid are noxious tó persons living upon said land or inhaling the same., 9. That said works emit smells which are offensive and intolerable to persons residing on said farm. 10. That the said works are a continuing nuisance to said farm, and are producing, and will continue to produce, irreparable injury. 11. That at the time said works were being erected, plaintiff was not fully informed as to the uses to which they were to be put, nor had he any knowledge as to how they were to be operated, and he then had no personal experience as to the effect produced by such works; and it was not until the defendant’s works had been in operation for some considerable time that he discovered the full effect from the gases, fumes and vapors aforesaid; and it is only within a period of a few weeks that he has learned, from chemical analyses of the soil and vegetation of his farm, the extent to which they are being poisoned.
    Equitable relief was prayed for: 1. That it be decreed that the defendant abate the nuisance complained of. 2. That the defendant company be restrained by the order and injunction of this honorable court from operating its smelting works in such manner as harmfully or injuriously to affect the plaintiff’s farm or the vegetation thereof, and from allowing or permitting the gases, fumes or vapors from said works to descend or fall upon said. farm. 3. General relief.
    The defendant’s answer in brief was: 1. That the allegations contained in the first paragraph of' said bill are true. 2. That the allegations contained in the second paragraph of said bill are substantially true; though only a portion of said farm is a fertile tract and used for farming purposes, the remaining portion being unfit therefor. 3. That the allegations contained in the third paragraph of said bill are true, except in this: that the defendant company’s works are distant some five or six hundred feet from the plaintiff’s dwelling. 4. That the allegations contained in the fourth paragraph of said bill are true. 5. The averments of the fifth paragraph of said bill the defendant company denies, and in this connection avers that its works are constructed after the most approved method, and with special reference to a prevention of an.y injury or damage to surrounding and neighboring property; and denies that from the operation of said works any injuries have resulted, do, or will result to the plaintiff. 6. That the averments contained in the sixth paragraph of said bill are not true. 7. That it is not true that there are any gases, fumes and vapors produced by the operation of defendant’s works, which are injurious to cattle grazing upon the plaintiff’s land and eating the products thereof; nor is it true that horses and cattle have died from grazing and eating fodder from said farm, because of any effect had thereon by the proximity of defendant’s works thereto, or their operation. 8. And defendant company denies the allegations contained in the eighth paragraph of said bill. 9. It further denies the allegations contained in the ninth paragraph of said bill. 10. It further denies the allegations contained in the tenth paragraph of said bill. 11. That it is not true, as averred in the eleventh paragraph of said bill, that at the time said works were being erected, the plaintiff was not fully informed as to the uses to which they were to be put; but on the contrary, as defendant avers, the said plaintiff had full knowledge of the contemplated erection of said works, and was for a time in negotiation with the defendant company with a view to selling to it the whole or a portion of his said property for the purposes of said works. That during the time the said-works were in process of erection, said plaintiff had daily knowledge of what was going on, saw the result of the expenditure of large sums of money made by defendant, in the putting up of said works, and has from that time until the present, had a continuous experience as to the operations carried on by the defendant. It is not true that the soil and vegetation of the plaintiff’s farm is or has been in any wise affected by any gases, fumes and vapors from defendant’s works* 12. That the said works have been erected at an expense of about $140,000; that this expense was incurred with the knowledge of the plaintiff, and without objection or protest upon his part; that the said works are perhaps the best constructed works of the character in the United States; that the defendant company employs in said works an average of from sixty to seventy-five men daily, who reside in the vicinity thereof, and manufactures large quantities of lead, which it supplies to the trade in the city of Pittsburgh, and ships to other places; that the interference with the operation of said works would result in great loss and damage to the defendant company, and to the trade of the city of Pittsburgh, and that so far from the existence and operation of said works producing any damage to the plaintiff, it is a fact that his said property is now by him rented, and has been for some time past, for a much larger sum than it was at the time said works were originally erected. 13. And the defendant company denies that the said plaintiff has sustained any damage, or is likely to sustain any damage, by reason of the erection and operation of defendant’s works, in any way, and that he has sustained, does, or will sustain any damages for which he has not a complete and adequate remedy at law.
    The master, to whom the case was referred, Jacob H. Miller, Esq., found the facts as follows :
    1st. That the plaintiff is the owner in fee simple of a farm of 46 acres and 8 perches of land, situate near Mansfield, in Robinson township, Allegheny county, with farm house' and buildings thereon, on the line of the Pittsburgh, Cincinnati and St. Louis Railway, at a distance of seven miles from the Union depot, in the city of Pittsburgh. This farm was purchased by him on April 12th 1871, for $21,000. The plaintiff has not resided on his farm, but has leased it to farmers and croppers. 2d. That the defendant’s real estate consists of nearly nine acres of land adjoining the farm of the plaintiff. The line bounding defendant’s land upon the south is coincident with the plaintiff’s northerly line, and is the centre of the roadway of the railway, which separates the two tracts as used and occupied. Both tracts are bounded on the east by Char-tiers creek, and a large portion of each is creek bottom, but the western portion of both, where the buildings are located, is elevated about fifty feet above the bottom land, and falls off gradually toward it. 3d. That in the spring of 1873, the defendant company commenced the erection of lead smelting works upon their land, near the railroad, within seventy-five feet of the plaintiffs land, and five hundred or six hundred feet from his farm house. The erection of the works occupied . about seven months, but new erections and changes have been since made. The buildings and ground' have cost $140,000. 4th. That the works were originally constructed for the smelting of ores and the production of soft lead, silver and whatever metals are of value in the ores received by the company, and for the refining of crude furnace lead bullion, produced from ores found in the western territories, which ores contain silver and gold, as well as lead. Since May 1877, the exclusive business of defendants has been the branch last named, viz.: The refining of crude furnace lead bullion and the production of merchantable lead, gold and silver. The defendant’s works have a larger capacity than any other lead works in the country, viz.: 14,000 to 15,000 tons of soft lead a year, and are now producing one-fifth of the whole lead product of the United States. Their furnaces and other appliances are abreast of the times as to improvements, and every precaution has been taken for the prevention of the escape of lead from their flues known to the most expert in the business. The amount of the lead produced, and the value of the lead, silver and gold produced by the defendant since commencing operations, are as follows:
    In 1873, lead, 223 tons ; value $94,293.62
    “ 1874, “ 395 i; 129,056.61
    “ 1875, “ 2,641 “ “ 745,779.52
    “ 1876, “ 3,694 ‘£ ££ 975,144.63
    “ 1877, “ 8,934 ££ 1,703,840.79
    First 6 months of 1878, lead 6,417 tons;££ 1,111,772.73
    5th. That the plaintiff’s land and the defendant’s works are located in a farming district; but on the tract immediately westward of the defendant’s land, is located the Mansfield Coal and Lime Company, whose coke ovens are near the lead works, and on the same side of the railroad. The railroad is between the ovens and the western portion of the plaintiff’s farm. 6th. That prior to the time defendant’s smelting operations began, the plaintiff’s land was fertile and well adapted to farming and grazing. 7th. That the defendant’s works emit from the chimneys and stacks thereof (in the processes of smelting ores and refuse and desilvering lead), offensive and poisonous fumes and vapors, which are blown upon, descend and rest upon the plaintiff’s farm; and that lead is thus distributed over said farm to a distance of at least fifteen hundred feet from said works. 8th. That these lead fumes and vapors have injuriously affected, and are injuriously affecting the plaintiff’s farm. That they have lessened the fertility of a portion of the farm lying nearest to the lead works ; that they have poisoned and •are poisoning the vegetation and products of said farm, rendering the latter unfit for consumption; and that these injuries are still continuing. 9th. That horses and cattle grazing upon the plaintiff’s farm and eating the products thereof, have died from lead poisoning, and that the lead was communicated to them through the herbage and fodder on which they fed. That the horses and cows of Jacob' Wehrle, who was the tenant of the plaintiff from April 1st 1875 to April 1st 1876, and those of his son, Frederick Wehrle, that died upon the plaintiff’s farm, were poisoned in the manner above stated. 10th. That since April 1st 1876, the only crop cultivated upon the farm is corn, which is husked on the stock and the fodder left on the ground; and no horses, cattle or live stock of any kind are reared or pastured on the farm. 11th. That the fumes and vapors from the defendant’s works are offensive and nauseating to persons living upon the land or inhaling them. 12th. That the plaintiff’s farm is greatly diminished in value by reason of the lead deposited and being deposited upon it from the defendant’s works. Its rental value is also greatly depreciated. 18th. That the lead works of the defendant are a nuisance to the plaintiff’s farm.
    Upon the whole case, law and fact, the master is of opinion that the plaintiff is entitled to the relief prayed for by the second paragraph of his prayer, and so reports.
    Exceptions were filed to this report, and after argument thereon the court, Stowe, P. J., filed the following opinion :
    “ The defendants’ interest in the maintenance of their works is such, and the public is so much concerned in the same result, that I have felt it my duty to scan, not only closely but critically, the evidence in the cause, with the purpose of escaping, if possible, from the conclusion arrived at by the master. After a very careful examination of the whole case, I am compelled to concur entirely with his findings of the facts, and see no way of avoiding the result indicated by him, without palpably disregarding the principles established by judicial authorities and decisions, not only in England but in this country as well.
    “ From the first I could see no hope for defendants, except it might be in the application of the principles- laid down by Chief Justice Thompson, in Richards’s Appeal, 7 P. F. Smith 105, where he says : ‘ A decree in equity is never of right, but of grace. Hence, the chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of a court and jury. If, in conscience, the former should appear, he will refuse to enjoin.’
    “Were it not for the dangerous quality of the ‘fumes’ thrown out by defendants’ works, which certainly affect growing vegetation, so as to make it not only unfit for food, but when eaten, destructive of animal health and life; and for the extremely nauseous character of the effluvia emitted, and the evident uncertainty at what point that which is now shown to be merely offensive to the senses may begin to be pernicious, I could, most probably, have been content to refuse the injunction prayed for, and have remitted the plaintiff to his action at law, to recover such damages as he might show had accrued to his real estate, by reason of injury to its productive capacity or general value for farming purposes.
    “ But these are disadvantages and injuries incident to risks arising from the peculiar character of the fumes emitted, which will not admit of compensation, and the possibility, if not probability, that the health and personal safety of persons living upon plaintiff’s land will sooner or later be involved, renders the case such that I am constrained to agree with the master, and conclude that a decree such as he recommends should be made.”
    From this decree this appeal was taken by defendant, which alleged that the court erred in sustaining the master’s findings of fact. In finding that the plaintiff is not estopped from maintaining this proceeding. In deciding that an injunction can issue in this case without a previous trial at law. In deciding that the plaintiff has not an adequate remedy at law for any grievance disclosed by the evidence. In not refusing to enjoin the defendant on the principle that when greater injury would ensue by enjoining than by leaving a party to his redress by a court and jury, equity will refuse to interfere. In the decree made enjoining the defendant.

      Hampton & Dalzell, for appellant.
    Taking the plaintiff at'his word, what injury and damage has he suffered ? 1. The loss of certain live stock and corn fodder (of his tenants). 2. Two acres of his land have been blackened, and a portion rendered unfit for certain uses — that of pasturage and the raising of certain kinds of crops. That damage in neither of these ways, nor in both together, will justify the abatement of defendant’s works by chancery process, is apparent from the following-well-recognised principles :
    1st. An injunction will not issue when the plaintiff has an adequate remedy at law. 2d. Equity will not abate a work erected and in operation on the ground that it is a nuisance, without a previous trial at law; although it may interfere in the first instance to prevent such erection. 8d. While an action at law is matter of right, an injunction is of grace; and the rule in cases of this character requires the court to balance the inconvenience likely to be incurred by the respective parties and the public by means of the action of the court, and, when greater injury would ensue by enjoining than by leaving the party to his redress at law, to refuse the injunction. And under the evidence we may invoke the further principle that his laches estops the plaintiff from the relief he seeks.
    In balancing the scales of advantage and disadvantage to public and private interests, do they go down upon the side of the plaintiff, so that the penalty for his loss of pasturage shall be the destruction of defendant’s enterprise and capital, the dismissal of their workmen, and the loss of hundreds of thousands annually to the people of Pittsburgh ? Shall one-fifth the entire lead product of the United States cease to enter the market because Mr. McIntyre’s forty acres have fallen in value; or because, at some time or other, it may possibly be that somebody shall be poisoned on his farm ? Shall the largest business in Pittsburgh, in dollars and cents, cease to be, because it is not lawful, even seven miles from its limits, to manufacture lead ? The doctrine of Richards’s Appeal, supra, has never been shaken or qualified by this court. On the contrary, it has often been affirmed ; notably so in a case very much like the one under discussion: Huckenstein’s Appeal, 20 P. F. Smith 102.
    We submit, as legitimate conclusions from all the evidence, that whether plaintiff has sustained any damages from defendants’ works is at best doubtful. That even if damages have been sustained, they are capable of compensation in an action at law. That the only damage not of this character anywhere suggested in the case, is eventual and contingent. That the disadvantages to result from the decree are far greater than any that can possibly result' from its refusal.

      George Shiras, Jr., T. H. Baird Patterson and M. W. Acheson, for appellee.
    Whatever may be found in the earlier cases to the contrary, it is now firmly settled that courts of equity will grant injunctions without a previous trial at law: Denny v. Brunson, 5 Casey 382; Scheetz’s Appeal, 11 Id. 88. It was distinctly ruled that the court is not bound by the verdict of a jury, and will not direct an issue before granting an injunction: Dennis v. Eckhardt, 3 Grant 390; Masson’s Appeal, 20 P. F. Smith 26; Weir’s Appeal, 24 Id. 230; Somers’s Appeal, 6 W. N. C. 442. This also was a case of nuisance, and-the point distinctly made that there should have been a previous trial at law. It is only where the right or title of the plaintiff is denied and disputed, as in Rhea v. Eorsyth, 1 Wright 503, that a trial at law is ever necessary before an injunction will issue.
    In the present case the nuisance was a serious and continuing one, and was clearly one for equitable relief. The cases of Richards’s Appeal, 7 P. F. Smith 105; Rhodes v. Dunbar, Id. 274, and Huekenstine’s Appeal, 20 Id. 102, do not rule the present case. The injuries complained of in those cases were very different from the grievances which afflict the plaintiff here. The princ pies admitted in the several opinions in those three cases call for equitable relief here. Any business, however lawful in itself, which as to those residing in the neighborhood where it is carried on, causes annoyances that materially interfere with the ordinary physical comfort of human existence and with the enjoyment of property, is a nuisance which will be restrained: Cleveland et al. v. The Citizens’ Gaslight Co., 6 C. E. Green’s N. J. Eq. 201; Babcock v. New Jersey Stock Yard Co., Id. 296; Catlin v. Valentine, 9 Paige (N. Y.) 575. A smelting-house is a nuisance at common law: Kerr on Injunctions *362, sect. 2.
    There is a wide distinction between the ordinary cases, cited on behalf of the appellants, where merely smoke and noise are complained of, and the case of a factory continually emitting poisonous fumes and vapors destructive to life and vegetation. It is insisted that to sustain the decree of the court below will be to destroy the appellant’s works, and the magnitude and importance of the business are dwelt upon. But such would by no means be the result. It is entirely practicable to erect and maintain suitable flues, stacks and chimneys to carry off the poisonous fumes, as is done in other countries where such works are carried on. Or the appellant can, for a comparatively small sum, possess themselves of the adjacent lands that suffer from the poisonous deposits. The recent and twice-considered case of Sanderson v. The Pennsylvania Coal Co., 5 Norris 401, is, we submit, conclusive authority in our favor, both in respect to what constitutes a nuisance and the right to a remedy in equity.
   Mr. Justice Gordon

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

The power of the Courts of Common Pleas of Pennsylvania to entertain bills for the restraint or abatement of nuisances, where they affect private rights, is undoubted; neither is the exercise of this power prevented by the fact that the party complaining may have a remedy by indictment or by an action at law: Bunnell’s Appeal, 19 P. F. Smith 59; Dennis v. Eckhardt, 3 Grant 390. It is true, indeed, that this power is limited to those cases' where common-law forms of action do not furnish an adequate remedy, and the chancellor may also refuse to act where greater injury would’ result from an injunction than by leaving a party to his redress before a court and jury : Richards’s Appeal, 7 P. F. Smith 105. But where, in ordinary parlance, the damage sought to be pervented is irreparable, that is, where the wrong is repeated from time to time, or is of a continuing character, or productive of damages which cannot be measured by ordinary standards, equity may be invoked: Commonwealth v. Railroad Co., 12 Harris 159.

The appellant, however, contends that an injunction ought not to issue until the complainant’s right has been established by an action at law. This suggestion would, in a doubtful case, have force, for the chancellor, in a case like the present, will act only when he can do so without hesitancy. If the case be doubtful he will refuse to interfere until the right, upon which the claim for relief is' based, is definitely settled by trial on the common-law side of the court. But to say that equity cannot move in any case until a jury has determined the nuisance to be an existing fact, is to-make our equity system a mere dependent on the common-law courts, and its jurisdiction servient and inferior. But a conclusion such as this does not accord with the intent o'f the Act of 1836, for by it the judges of the Common Pleas are clothed not with partial and dependent, but with full and and independent chancery powers over all the subjects therein mentioned. We may then adopt the language of Earl, J., in Campbell v. Seaman, 63 N. Y. 568, when speaking of injunctions against nuisances : “ It was formerly rarely issued in the case of a nuisance until the plaintiff’s right had been established at law, and the doctrine which seems now to prevail in Pennsylvania, that the writ is not a matter of right but of grace to a large extent prevailed. But a suit at law is no longer necessary, and the right to an injunction in a proper case in England and most of the states is just as fixed and certain as the right to any other provisional remedy. The writ can rightfully be demanded to prevent irreparable injury, interminable litigation, and a multiplicity of suits, and its refusal in a proper case would be error to .be corrected by an appellate jurisdiction. It is a matter of grace in no sense except that it rests in the sound discretion of the court.”

Nor have our own courts been less ready to adopt the same doctrine ; hence, it has been held that an injunction would be issued to prevent the cutting down of timber and ornamental trees to the injury of the reversion: Denny v. Brunson, 5 Casey 382; or to restrain a trespass of a permanent or continuing character: Masson’s Appeal, 20 P. F. Smith 26. So may acts of trespass or nuisance be restrained to prevent a multiplicity of suits, or where such wrongful acts might become the foundation of an adverse right: Scheetz’s Appeal, 11 Casey 88.

Nor do we understand how Richards’s Appeal can help the defendant; for while no one disputes the position that a bill for suppression of a nuisance may be dismissed on general demurrer for- want of equity, unless it appears from the subject-matter affected by the alleged nuisance that there is danger of irreparable mischief, or of an injury such as cannot be adequately compensated •in a suit at law, yet, we apprehend, even under this authority, a general demurrer would scarcely have sufficed to turn the bill before us out of court. In it we find then several allegations; that the defendant’s works are so constructed as to emit noxious and poisonous gases, fumes and vapors, and that they are so located that these noxious and poisonous gases fall upon the plaintiff’s land, thereby poisoning and destroying both soil and vegetation; that cattle and horses have died from eating the fodder and herbage thus poisoned; that these fumes and vapors are offensive and noxious to persons resident upon said farm, and that these injuries are continuous and irreparable. It would certainly be a very bold solicitor who would risk the admission of such facts on a general demurrer, and it is a significant fact that the learned counsel for the defendant have attempted no such experiment.

The bill, then, is sufficient to evoke the action of- a court of equity, and all that remains is to ascertain if the bill be supported by the evidence. As to this, after a careful examination of the testimony, we conclude that the findings of the master are correct, and that the complainant’s complaint is fully sustained- by the proofs. 'And indeed, it is to be remembered, in limine, that whether á smelting-house for lead is or is not a nuisance fer se to adjacent land depends very much upon its situation. “ If,” says Blackstone, “ one erects a smelting-hóuse for lead so near the land of another that the vapor and smoke kill his corn and grass, and damage his cattle therein, this is held to be a nuisance.” All intelligent persons are aware that lead vapors are poisonous, and this the more so as they are often, as in the case in hand, accompanied with arsenic. In this matter we need not chemists and experts to teach us, for common experience is sufficient. When, therefore, we learn- that the works of the defendant are to the windward of the plaintiff’s land, within seventy-five feet of his northern line, and but five or six hundred feet from his farmhouse, we need but little evidence to satisfy us that the smoke from these works is seriously' injurious to his property. But in addition to what we might naturally expect from the design and character of this business, and which might in themselves have been sufficient to have sustained á bill to restrain the erection of these works, we have the findings of the master, based on undoubted testimony, as follows: “ That prior to the time the defendant’s smelting operations began the plaintiff’s land was fertile and well adapted to farming and grazing. That the defendant’s works emit from the chimneys and stacks thereof, in the process of smelting ores and refuse and desilvering lead, offensive and poisonous fumes and vapors, which are blown upon, descend and rest upon the plaintiff’s farm, and that lead is thus distributed over said farm to a distance of at least fifteen hundred feet from said works. That these lead fumes and vapors have injuriously affected and are injuriously affecting the plaintiff’s farm; that they have lessened the fertility qf a portion of the farm lying nearest tbe lead works; that they have poisoned and are poisoning the vegetation and products of said farm, rendering the latter unfit for consumption; and that these injuries are continuing. That horses and cattle grazing upon the plaintiff’s farm, and eating the products thereof, have died from lead poisoning, and that the lead was communicated to them through the herbage and fodder on which they fed; that the horses and cows of Jacob Wehrle, who was tenant of the plaintiff from 1st April 1875 to April 1st 1876, and those of his son Frederick "VVehrle that died upon the plaintiff’s farm were poisoned in the manner above stated; that since April 1st 1876 the only crop cultivated upon the farm is corn, which is husked on the stalk and the fodder left on the ground; and no horses, cattle or live stock of any kind are reared or pastured on the farm; that the fumes and vapors from the defendant’s works are offensive and nauseating to persons living upon the land or inhaling them; that the plaintiff’s farm is greatly diminished in value by reason of the lead deposited and being deposited upon it from the defendant’s works. Its rental value is also greatly depreciated.”

To this he might well have added that the plaintiff's farm was thereby rendered not only uncomfortable but dangerous as a place of human habitation; for a place where not only the herbage and ground are so literally poisoned by deposits of lead that it is readily discoverable by chemical analysis, but where at times also the air is so filled with the noxious vapors of lead and arsenic as to make those sick who encounter them, might certainly be called dangerous to human health and life.

In this connection another important circumstance must be con-' sidered; that is, the cumulative character, of this injury. It increases from year to year, not only as the works are enlarged, but as more and more lead is added to the ground. The deposit is an indestructible metal that is neither evaporated nor absorbed, and necessarily it must accumulate as long as the cause of the deposit continues. Hence, as it was observed at first, even on the land nearest the works, the effect was scarcely observable, but as time went on it became more and more apparent until finally the soil was wholly unfitted for agricultural purposes. So, in like manner, may these blighting influences continue until the whole farm is made barren and unproductive. Thus it is that we find in this case every element necessary to call forth the exercise of equity powers. The business complained of is a dangerous nuisance; the injury continuous and cumulative, and the mischief irreparable. If, as in Dennis v. Eckhardt, 3 Grant 390, a tin shop was enjoined on account of its noise, or as in Campbell v. Seaman, the use of a brick kiln was restrained because the vapor therefrom was destructive to the plaintiff’s trees and vines, much more should a business be enjoined which is destructive alike to vegetable and animal life. The rule sic utere tuo, ut alienum non leudas is a most valuable one,-and must be maintained if our civilization is to be cherished and preserved, and it is not at all to the purpose to answer the charge of a violation of this rule that the defendant’s works have been erected at a great outlay of capital; that they are important to the public at large, and give employment to many men. Says Wood, in his work on Nuisances, sect. 794: “A person cannot go on and build extensive works and make heavy expenditures of money for the exercise of a trade or business that will invade the premises of another with smoke, noxious vapors or noisome smells, to an unwarranted or unlawful extent, and then when called upon to desist turn around and claim immunity for his trade or business on the ground that to stop it would involve him in ruin, nor that it is a necessary result of carrying on his trade at all, and that he has adopted the most approved methods known to science, or which human skill has devised, nor that his trade is a useful one and beneficial to the community, or to the nation, or that by bringing a large number of workmen into the community it has enhanced .the value of the plaintiff’s property.” Where justice is properly administered rights are never measured by their mere money value, neither are wrongs tolerated because it may be to the advantage of the powerful to impose upon the weak. Whether it be the great corporation with its lead works, or the mechanic with his tin shop, the rule is the same: “So use your own as not to injure another.” Moreover, there is, after all, one underlying principle which influences both, and that is private gain. Lead works and tin shops alike may result incidentally in the public good, but this is only an incident, for the primary object which induces the exercise of either trade is personal good; therefore to neither party is the general community under any special obligation, and as a consequence there is no good reason w'hy the rules of law should be relaxed in the one case rather than the other.

Again, we cannot but regard this company as unfortunate in the selection of a place for the erection of its works. To undertake the business of lead smelting in the midst of a rich suburban valley, occupied by farms and country residences, was, to say 'the least of it, not very prudent. Lord Cranworth, in the case of the St. Helen’s Smelting Co. v. Tipping, 11 H. L. Ca. 652, quoting Mr. Justice Mellor, says: “It must he plain that persons using a limekiln, or other works which emit noxious vapors, may not do an actionable injury to another, and that any place where such an operation is carried on so that it does occasion an actionable injury to another, is not, in the meaning of the law, a convenient place.” If, however, any place is improper for a business of this kind where injury may result from it to others, surely a situation like that selected by the defendant ought, in the outstart, to have been regarded as improper, since common knowledge and prudence should have informed its managers that injury, sooner or later, must result to the adjacent property.

But it is insisted that the plaintiff has no equity, as against this company, because he gave it no notice before or at the time of the erection of its works. But of what would he give it notice ? Of the effect the fumes would have upon his farm ? But the master has found that he knew nothing of lead works and their probable effect on adjacent land; he could not, therefore, notify it of that of which he was ignorant. One would suppose that on this matter the managers of the corporation would be fully posted; if they were so posted, if they knew what the effect would be upon the surrounding property, then they acted with knowledge wantonly, and notice to them was unnecessary; but if they were ignorant, if they knew not the consequences which would follow the business in which the company was about to engage, then they ask too much of the plaintiff when they require of him a knowledge of their own business which they themselves did not possess.

Decree affirmed.