text:
    October and November Term,
    Nos. 41 and 42.
    October 13, 1884.
    Lanahan v. Dampman et al.

    Before a defendant ban demand a stay of execution under the lenient provisions of the act of March 23, 1877, P. L., 29, he must comply with the conditions contained in section five, and pay the interest due on the debt and the interest due on prior liens.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterkett, Green, and Clark, JJ.
    Error to the Common Pleas of Armstrong County.

    In the court below these were two actions of ejectment, one by J. K. Lanahan against John Dampman, David Buchanan, and Walter Weaver, for the west half of lot No. 94 in the borough of Freeport, the other by the same plaintiff against John Dampman and George Iseman, for the east half of the same lot.

      The two cases were tried together, and on the trial before Neale, P. J., the following facts appeared
    The title to the lot in dispute was admitted to have vested in Louis Drummerhausen by various conveyances, the last of which bore date June 14, 1872. On March 2, 1874, Conrad Bender entered judgment against Louis Drummerhausen, in the Armstrong county common pleas, for $2,100, interest from February 11, 1877, waiver of inquisition and all exemption laws, upon which a ft. fa. was issued July 18, 1878, an inquest summoned by the sheriff in jmrsuance of the act of 23d March, 1877, entitled “An act to regulate stay of execution in certain cases,” and lot No. 94, which had been levied upon on July 23, 1878, was valued and appraised at $5,250. The writ was stayed on application August 30, 1878, till September 2, 1878 ; and on September 4, 1878, the lot was sold by the sheriff to John Dampman for $2,500. The sheriff’s deed to Dampman was presented in court for acknowledgment on September 11, 1878 ; objection made thereto, and the acknowledgment was held over. Exceptions were filed September 14,1878, inter alia, as follows : “Fourth. The properties sold were appraised by the sheriff and his jury, called thereon, at the sum of $5,250, and were struck down at the sum of $2,500, not two thirds of said appraisement.”
    September 18, 1878, the deed was again presented in court and the acknowledgment taken. The following indorsements appear on the deed:
    “ September 11. Presented in open court and held over.
    By the Court.
    September 18,1878. No exceptions filed and confirmed.
    By the Court.”
    On September 25, 1878, on petition of Drummerhausen, a rule was granted to show cause why the acknowledgment of the sheriff’s deed should not be vacated. From the testimony taken thereunder, it did not appear that Drummerhausen had complied with the condition of the fifth section of the act of 23d March, 1877, which requires that before any one shall be entitled to the stay of execution he shall pay the interest due on the debt and the interest due on prior liens ; and on hearing, the rule was discharged.
    Louis Drummerhausen and wife afterwards, November 13, 1880, executed to J. K. Lanahan, the plaintiff in the ejectment suits, a deed for the same premises described in . the sheriff’s deed to Dampman.
    The plaintiff presented the following point:

      “ If the jury find from the evidence that the sheriff made his levy on the property in controversy, July 23, 1878, and held an inquisition thereon July 29, 1878, and that said inquisition valued and appraised said property to be of the value of $5,250, and that the sheriff sold the same on the 4th day of September, 1878, for the sum of $2,500, or a sum less than two thirds of the appraised value ; then such sale was without authority of law, and the sheriff’s deed given in evidence by the defendants conveys no title to the purchaser, and their verdict must be for the plaintiff.”
    Refused. (Second assignment of error.)
    The Court charged the jury, inter alia, as follows :
    “The deed having been delivered to the present defendant, John Dampman, we hold that it carries a paramount title to that of the plaintiff, and, therefore, your verdict should be in favor of the defendant.”
    (Fourth assignment of error.) .
    Verdict for defendants and judgment thereon ; whereupon, plaintiff took these writs, assigning for error, inter alia, the refusal of his point and the portion of the charge of the Court given above.

      David Barclay for plaintiff in error.
    The levy, appraisement, and valuation and sale were all under the act of 23d March, 1877.
    Section 1 of that act directed thus: “And in case any writ of venditioni exponas or • other writ shall issue, for the sale of such lands, tenements, or hereditaments, and the same cannot be sold at public vendue or outcry for two thirds or more of such valuation or appraisement, that then and in such case the sheriff or coroner shall not make sale of the premises, but shall make return of the same according to the Court from which the execution issued: P. L., 1877, page 29..
    In utter disregard to the law the sheriff made the sale for less than half the valuation by the inquest, and returned the lots sold at $2,500. This he had no authority to do. His act, in selling, was in defiance of the law, and the sale was void: Gardner v. Sisk, 4 P. F. Smith, 506 ; Shields v. Wiltenberger, 2 H., 78 ; McFee v. Harris, 1 C., 102; Shoemaker v. Ballard, 3 H., 94; Snyder v. Christ, 3 W., 499.

      McCain & Leason for defendants in error.
    The fifth section of the act of 23d of March, 1877, Purdon’s Digest, page 2118, requires the defendant, before he shall be entitled to the stay of execution on real estate given by said act, to pay the interest due on the debt and interest due upon prior liens, &c. L. Drummerhausen did not fulfill these conditions, hence he was not entitled to the stay provided by the statute,- and the sheriff had authority of law to sell, and the title of L. Drummerhausen was divested.
    The subject of the second assignment of error had been fully heard and adjudicated on the rule to vacate the acknowledgment of the sheriff’s deed, and was certainly res adjudicata.

    October 27th, 1884.
   Per Curiam:

The plaintiff in error demands a stay of execution under the act of 23d March, 1877, Pardon’s Digest, 2118, without complying with the conditions on which a stay is granted. The act, inter alia, declares “before any person shall be entitled to a stay of execution on real estate levied upon, he shall pay the interest due on the debt, and the interest due upon prior liens thereon.” This he did not do. He, therefore, had' no right to invoke the lenient provisions of the act.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    October and November Term, 1884,
    No. 187.
    October 15, 1884.
    Landis et ux. v. Torney.
    1. A husband conveyed his real estate in 1859 without his wife joining in the deed, and the grantee took possession thereunder. The grantor died in 1861, and about two years afterwards his wife married again. In 1883, she brought an action of dower against the grantee. JHeld, that when her coverture was removed in 1861, the grantee was holding adversely, that her right of action then accrued and the statute of limitations began to run.
    2. After the statute has commenced to run, it is not suspended by a subsequent marriage.
    3. The act of 22d April, 1856 P. L., 532, relieves her from the operation of the statute during her coverture existing when the conveyance was made, but extends no further,
    4. Care v. Keller, 27 P. P. Sm., 487, followed.
    Before Mercur, C. J., Trunkey, Sterrett, Green, and Clark, JJ. Gordon and Paxson, JJ., absent.
    Error to the Court of Common Pleas of Armstrong County.

    Sammons in dower by Henry Landis and Caroline V. Landis, his wife, to the nse of said wife, against Patrick Torney. Plea, Statute of Limitations.
    Upon the trial in the court below, before Neale, P. J., the following facts appeared:
    The real plaintiff, Mrs. Caroline Y. Landis, was married to Alexander Cunningham on the 8th of January, 1851, and lived with him until January, 1861, at which time he died. At the time of his marriage, Mr. Cunningham owned in fee a house and lot of land, situate in the borough of Apollo, in the county of Armstrong, bounded and described as follows: All that piece or parcel of land situate in Warren, now the borough of Apollo, marked in the plot of said town as No. 35, and which is sixty-seven feet front on Indiana street, and extending back one hundred and sixty-five feet to an alley.
    About two years after her first husband’s death, she married Henry Landis, her present husband, and who is one of the plaintiffs. She married him in the fall of 1862 or spring of 1863.
    Alexander Cunningham conveyed the lot involved in this controversy to the defendant, Patrick Torney, by deed dated May 18,1859, without his wife joining therein. Torney went into the possession of the premises so conveyed in the life-time of Alexander Cunningham, and has lived on it ever since. This action was brought by his widow March 31, 1883, to recover the one third part of the land before described or designated.
    The Court thereupon charged the jury as follows :
    “There is very little for your action in this case. As it now stands, there is simply a legal question to be determined. The views of the Court on that question are adverse to those entertained by the counsel for the plaintiff, and we therefore decide against the recovery of the plaintiff. The question here is determined by a statute in Pennsylvania known as the Statute of Limitations, which bars a recovery in all actions where the right of action had accrued twenty-one years prior to the time of bringing the action. If there was a legal disability existing at the time, then we say that the Statute of Limitations would not apply, because one under a legal disability during the whole period would not be required under our law to bring the action. But we hold that where the Statute of Limitations once begins to run, and the disability arises, that is to say, by another marriage of the widow claiming, then she could not set up that disability as a preventative of the statute against her claim. In this case the right of action accrued to this woman when her first husband died, which was in 1861. On that the statute would run a period of some two or three years yvhen she re-married. That might place her under a disability, but not as to this particular case. She could not by her own act acquire a disability which would prevent the running of the statute. [It is claimed on the part of the plaintiff that she has, under the act of 1856, thirty years within which to bring her suit, and that she would not be barred until the lapse of thirty years after her right to bring the suit had accrued. This we hold does not apply to this case.] [We believe that after the lapse of twenty-one years, the statute in the meantime having commenced to run, it bars her right to recover.] She could not prevent it, as we have stated, by her marriage. [Under this ruling, it becomes the simple duty of the jury to find a verdict in favor of the defendant, which we now instruct you to do.]”
    September 19, 1884, verdict for defendant, upon which judgment was subsequently entered.
    Plaintiffs then took out a writ of error, and assigned' as error those portions of the charge inclosed between brackets.

      Calvin Rayburn for plaintiffs in error.
    The defendant took immediate possession, and from that time held adversely ; but the right of action did not accrue till after the death of the husband. The adverse possession commenced when Mrs. Landis was under the disability of coverture. The act of 22' April, 1856, Purd. Dig., 930, section thirteen, then applies: Pratt v. Eby, 17 P. F. Sm., 396. This act of 1856 repeals the act of 26 March, 1785. Hogg v. Ashman, 2. Norris 81.

      E. 8. Golden for defendant in error.
    Plaintiffs’ right of action accrued in January, 1861, and her action was brought upwards of twenty-two years from the time her actio2i accrued. Hence the bar of the statute of limitations was complete, and the case is ruled by Care v. Keller, 27 P. F. Sm., 487.
    The act of 1856 is a restraining act even as against disabilities, and has no application to the present case.
    October 27th, 1884.
   Per Curiam:

When the coverture of Mrs. Landis, formerly Cunningham, was removed by the death of her husband, in 1861, the defendant in error was holding adversely. He was then in possession under his purchase. Her right of action then accrued, and the Statute of Limitations began to run. This action was not commenced until the 31st March, 1883. After the statute began to run, it was- not suspended by her subsequent marriage. The act- of 22d April, 1856, is not applicable. That relieves her from the operation of the statute during her coverture existing when the conveyance was made, but extends no further: Care v. Keller, 27 P. F. Smith, 487.

Judgment affirmed.


author: Per Curiam :

text:
    October and November Term, 1884,
    No. 63.
    October 14, 1884.
    McGough et al. v. Jamison.
    1. A certificate of deposit payable to the order of the depositor “ on return of this certificate ” is not due until demand made with an offer to return the certificate.
    2. The Statute of Limitations does not begin to run against it until such demand has been made.
    8. The demand may be made after the expiration of six years from the date of the certificate.
    4. An affidavit of defense setting forth “ that the said plaintiff did not at any time prior to the commencement of this suit make from said defendants or any of them any proper or lawful demand for the money for which in this suit he claims to recover, and which he alleges 'is now due him. This deponent expressly denies that any demand from said MeGough, Parker & Co. for said money was made on the 2d day of September, 1882, in any way binding upon said firm,” is not a sufficient denial of the demand to prevent judgment.
    5. An affidavit of defense to a suit upon a certificate of deposit to the effect that the defendants ceased business nearly six years before suit brought, and transferred their accounts to a corporation, that they have uot kept up any form of organization since, that all the accounts were closed and public notice given of the transfer and discontinuance, that since they have had no officers or place of business, and that the plaintiff did not make any demand from any officer of defendants while they were doing business, is not sufficient to prevent judgment.
    Before Mercur, C. J.; Trunkev, Sterrett, Green, and Clark, JJ. Gordon and Paxson, JJ., absent.
    Error to t-lie Court of Common Pleas of Armstrong Qounty.

    Assumpsit, September 4,1882, by B. F. Jamison against ■Peter MeGough, James P. Parker, and others to recover on the following instrument of writing:

      PARKER’S SAVING BANK.
    McGough, Parker & Co., Bankers.
    Parker’s Landing, Pa., April 89, 1876.

      [Indorsed.]

    B. F. Jamison.
    The defendants filed an affidavit of defense, which set forth:

      First. That the defendants are not now indebted, nor were they at any time indebted, for goods sold and delivered, nor for work and labor done for the said plaintiff, nor for money paid, laid out, and expended, nor upon an account stated, nor by reason of any promise to pay as charged in the narr in this case.
    -x- x x- x x x x x

      Third. That the defendants are advised and believe that the certificate sued on was payable presently after its execution and delivery, to wit: April 29, 1876, and that the present action was not brought until the 4th day of September, 1882 — more than six years after the maturity of the said certificate, and after the right thereof had fully accrued, and that the same cannot in the present action be recovered because barred by the Statute of Limitations, which the said defendants hereby plead and set up.

      Fourth. That the said alleged certificate of deposit is not within any of the exceptions to the Statute of Limitations, and that no promise is averred in the plaintiff’s narr, or alleged to have been made to pay the same, either absolutely or conditionally, within six years prior to the expiration of this writ. All of which the defendants can prove by legal and compétent evidence.
    James P. Parker, one of the defendants, upon leave of the court, filed a supplemental affidavit of defense, as follows:
    “Deponent says that the said defendants, under the name and style of McGough, Parker & Co., were engaged in business at Parker’s Landing, Pa., for a number of years prior to 1877 ; but that in February, 1877, the said firm ceased to do business and transferred the business and accounts theretofore done and kept by the said Mc-Gough, Parker & Co., to the Parker Savings Bank, a corporation created under the laws of Pennsylvania. The said firm of McGough, Parker & Co. has not been engaged in a banking or other business since on or about the 13th day of February, 1877, and has not kept up any form of organization since 'that date. All accounts of said firm, so far as presented, were closed, and public notice was given that its business was transferred, and that the firm of McGough, Parker & Co. had discontinued its business. Said firm, since that date, has not been represented by any officers and has not had any place of business. This deponent says that the said plaintiff did not make any demand for the amount of money he claims in this case from any cashier or any officer of said firm of McGough, Parker & Co., while said firm was doing business and had a representation by its regular officers, to wit, prior to February 13, 1877. This deponent farther avers, and expects to prove on the trial of this cause, that the said plaintiff did not, at any time prior to the commencement of this suit, make from said defendants, or any of them, any proper or lawful demand for the money for which in this suit he claims to recover and which he alleges is now due him.
    “This deponent expressly denies that any demand from said McGough, Parker & Co., for said money was made on the 2d day of September/1882, in any way binding upon said firm.”
    The narr filed with the copy set forth that demand had been made on September 2, 1882.
    The court below, Neale, P. J., March 3, 1884, entered judgment for the plaintiff. The defendants thereupon took this writ, assigning for error the action of the court as above.

      E. 8. Golden and J. P. Colter for plaintiffs in error.
    If the obligation upon Avhich this suit was brought is a due bill, payable on demand, the Court erred in entering judgment for want of a sufficient affidavit of defense. In that view of the claim, it is clearly barred by the Statute of Limitations. If the obligation be held to be a certificate of deposit, placing the defendants in the position of bailees, there was still error in making the rule for judgment absolute, because the affidavits of defense distinctly deny that the plaintiff had made demand for amount alleged to be due before he brought suit. There was certainly an issue of fact raised on the question of demand, which should have been submitted to a jury.
    The obligation is, under all the facts of the case, a due bill or promissory note. The plaintiff, when he left the money in the bank, was undecided whether he vrould leave it as .a deposit or loan the money to the defendants. A clause was added to the writing requiring the payment of interest at five per cent, if the money should be left with the defendants six months. By the action of the plaintiff, this clause, requiring the payment of interest, became binding, and in this appears his decision to leave the money with them as a loan: Laforge v. Jayne, 9 Barr, 410 ; Andress’ Appeal,3 Outerb.,421; Milne’s Appeal, Id., 483.
    The plaintiff is not relieved from the necessity of bringing his action within six years in certain cases, even when the defendant stands in the relation of trustee. On. this we cite : Barton v. Dickens, 12 Wright, 518 ; Campbell’s Administrators v. Boggs, 12 Wright, 524 ; Finney v. Cochran, 1 W. & S., 118.
    If, however, this obligation is of the character of a bailment within the ruling of the cases relied on by the plaintiff, he was, at least, bound to make demand before he brought suit. The reason given in those cases why the claims were not barred is that they may run six years after demand made. But both cases recognize the necessity of previous demand: Codman «. Bogers, 10 Pickering, v112; Morrison v. Mullin, 10 Casey, 12; Alexander v. Leekey, 9 Barr, 120.

      Buffington ■& Buffington for defendant in error.
    The instrument of writing upon which the suit was brought is a certificate of deposit, and the case falls under the ruling of Gfirard Bank v. Bank of Penn Twp., 3 Wr., 92, and Finkbone’s Appeal, 5 Norris, 368, and the statute does not run until demand made. This is not the case of a due bill payable on demand, as in Milne’s Appeal, 3 Out., 486, and. Andress’ Appeal, I~bid.\ 421, but is a deposit of money to be returned on demand and ‘ ‘ on return of this certificate.” The first is a matter of contract only, the other a trust arising out of contract, and the statute will not run until demand made.
    If the defendants had alleged, in their affidavit, that no demand had been made, and stopped, there would have been no pretense for the entry of judgment, but they aver such further facts as show that no demand was necessary. If the reason for requiring a demand ceases to exist, the necessity of .making a demand falls with it. ‘ ‘ Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”: Broom’s Legal Maxims, page 151.
    October 27th, 1884.
   Per Curiam :

It is true the Statute of limitations begins to run against a mere due bill payable on demand, from the date of the bill, and not from the time of demand for payment: Andress et al. Ajjpeal, 3 Out., 421. That is because suit may be brought at once thereon without previous demand. The instrument, however, on which this suit is brought is not such a due bill. It is not payable on demand merely. It is payable to the order of the depositor ‘ ‘ on return of this certificate.” That super-added condition changes its character. A suit could not be maintained on this instrument without returning it or offering to return it. It is, in fact, an instrument known as a certificate of deposit. It was not due until demanded and a return of the certificate. No action could be maintained thereon until that time. It follows that is the time the statute began to run, for then the right of action accrued : Finkbone’s Appeal, 5 Norris, 368. The demand may be made after the expiration of six years from the date of the certificate: Icl. In the present case, the demand is averred to have been made two days before-suit brought. The supplemental affidavit impliedly questions the validity of the demand, produced by the conduct of the plaintiffs in error. All that is therein averred is insufficient to prevent judgment: Cooper v. Mowry, 16 Mass. Rep., 7.

Judgment affirmed.


author: Green, J.:

text:
    BLAIR COUNTY.
    July Term, 1883,
    No. 80.
    October 6, 1884.
    Pennsylvania Railroad Company v. Friday.
    A railroad company having constructed a stone culvert under its road-bed upon the upper side of land owned by an individual, through which the surface-water was emptied upon it from the land above, paid to the said owner $100, and obtained a release from him, reciting that he claimed damages “by reason of the overflow of my said lands caused by a culvert, &c.,” and that the company was to pay $100 for all damages, past and future, “sustained for or by reason of the overflow of my lands from the cause aforementioned;” releasing the said company from all claims, damages, &c., “ for or by reason of the overflow of my said lands from the cause aforesaid mentioned,” either at any time before or after the date thereof; and concluding that it was to operate as a full discharge for all past and future damages “sustained under any circumstances for the cause aforementioned, or for or by reason of any other matter, cause or thing touching or concerning the same.” The railroad company, several years afterwards, constructed seven additional drains causing the water to overflow the land in seven additional places, and consequently additional damage to the land. Held, that since the overflow or flooding, and not the culvert, was the occasion of the damage, the words “ the cause aforementioned ” refer to the substance of the injury, and’not to the channel through which the injury was inflicted; and that, therefore, there could be no recovery for the damage caused by additional overflow or flooding.
    Before Merctjr, C. J'.; Gordon, Paxson, Trunkey, Steerett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Blair Bounty.

    Case by Conrad Friday against the Pennsylvania Railroad Company.
    On the trial in the court below, before Dean, P. J., the following facts appeared:
    Conrad Friday, the plaintiff, was the owner of a farm, which was purchased by him in April, 1861, containing thirty-one acres, and situated about five miles from Tyrone, on the eastern slope of the Allegheny mountain, in Snyder township, Blair county. At the time of this purchase, the Tyrone and Clearfield railroad had been located. The road was afterwards completed, and ran upon the south-west side of this land for a distance of two thousand seven hundred and forty feet. The land, which was used as a farm, consisted of a long narrow strip on the lower or north-east side of the road. From the natural formation of the land, being on the slope of the mountain, there was an extensive water-shed to the southwest of it, from which, before the railroad was built, the surface-water flowed upon plaintiff’s land.
    About the time of the construction of the railroad, a stone culvert, two feet square, was constructed by the railroad company under the road-bed, and the surface-water, flowing down the mountain, was collected in a small artificial -chamber on the upper side of the railroad, and, being conducted along this channel, was discharged through the culvert upon the plaintiff’s land below. After complaints by plaintiff, the Pennsylvania Railroad Company, then operating under the charter of the Tyrone and Clearfield Railroad Comyjany, paid to the plaintiff $100, on December 14, 1876, and took from him the following release:

      “Know all men by these presents, That, whereas, I, Conrad Friday, of the township of Snyder, in the county of Blair, and State of Pennsylvania, am seized in fee of a tract or piece of land in the township, county, and State aforesaid, situate, lying, and being on east side of the Tyrone and Clearfield railroad; and, whereas, I have made a claim for damages against the Pennsjdvania Railroad Company operating the Tyrone and Clearfield railroad, for and by reason of the overflow of my said lands caused by a culvert under the said Tyrone and Clearfield railroad, about two miles from Yail station, on said railroad, which said culvert discharges the water from an extensive watershed on the west side of the said railroad, the water being collected from said water-shed in a small artificial channel on the west side of said railroad, and being conducted along said channel a considerable distance, and discharged through said culvert upon my said lands, overflowing said lands and damaging the same; and, whereas, it has been agreed between the Pennsylvania Railroad Company and me that said company shall pay me the sum of $100, in full satisfaction for all damages which I have sustained or which I may hereafter sustain for or by reason of the overflow of my lands from the cause aforementioned. Now, I, the said Conrad Friday, in consideration of the sum of one hundred dollars to me in hand paid by the said, the Pennsylvania Railroad Company, the receipt whereof is hereby acknowledged, have remised, released, quit-claimed and forever discharged, and by. these presents do remise, release, quit-claim, and forever discharge, for myself, my heirs, executors, administrators, and assigns, the said, the Pennsylvania Railroad Company, its successors and assigns, of and from all and all manner of action and actions, cause and causes of action and actions, suits, sum and sums of money, claims, demands, and damages whatsoever, in law, equity, or otherwise, for or by reason of the overflow of my said lands from the cause aforementioned, either at any time before the date of these presents or at any time after the date hereof, this release to operate as a full and complete satisfaction and discharge for all damages that have been heretofore sustained, or that may at any time hereafter be sustained under any circumstances from the cause aforementioned, or for or by reason of any other matter, cause, or thing touching or concerning the same. In witness, &c., &c., December 14, 1876.”
    The plaintiff cleared his land, cultivated it, raised crops, and erected a house and barn at an expense of about $1,500.
    For the purpose of protecting the road-bed, the railroad company, in 1878, constructed seven wooden box-drains under the road-bed, the effect of which was to discharge the water over plaintiff’s land in seven additional places, the force of the water carrying with it and depositing upon the land quantities of cinder, ballast, &c., cutting gullies into the land, and washing away seed and growing crops. In some places, the water lay on the ground, soaked in, and the sun baked the soil hard.
    A number of witnesses testified as to the yearly and as to the permanent damage to the crops and the land.
    Defendant’s counsel presented to the court the following points for charge, which, with the answers thereto, are as follows:

      First. The complaint in this action being that the water was discharged through culverts, or box-drains, upon the land of the plaintiff below the railroad to his injury, the remedy is not by a common law action on the case, but the exclusive remedy is that provided by the act of Assembly for the assessment of damages, and this action, therefore, cannot be maintained.

      Answer. We would have no hesitation in affirming this point if the statutory remedy had been adopted by either party at the time the road was laid out and constructed; but the evidence does not show that the method pointed out by the act of Assembly for ascertaining damages was ever invoked. This being the case, we are not now prepared to affirm the point, and therefore reserve it.

      Second. The alleged injury results from the construction of culverts, or box-drains, made for the purpose of draining surface-water accumulating or flowing upon the lands west of the railroad, and the defendant is not liable therefor; the defendants had a right tó drain the surface-water frorh the land above their road in order to protect their road-bed, and they are not answerable for damages arising therefrom.

      Answer. This point is denied. It might have been stated so as to leave the facts to you, in which case we should have affirmed it; but, as stated, it is not affirmed.

      Third. The release executed by the plaintiff, on the 14th of December, 1876, is a bar to this action.

      Answer. This point is denied ; and as to our construction of that release, it is the legal construction so far as this case is concerned, the law making it the duty of the Court to construe legal papers.

      Fourth. On the whole case, the jury are instructed to find for the defendant.

      Answer. This point is denied. It is not the law. We have submitted the case to you on the evidence, and you are to make up your verdict under the instructions we have given you.
    Defendant’s counsel excepted to the answers to the above points.
    May 4, 1882. Yerdict for plaintiff for $550.
    Upon a motion for a new trial, the defendant’s first point was denied, and judgment was entered on the verdict.
    Defendant then took out a writ of error, and assigned as error the ■ answers to the points of charge, and the refusal to enter judgment in favor of the defendant on the point reserved.

      B. J. Neff for plaintiff in error.
    The exclusive remedy for the injury complained of in this action is that provided by statute of 19th February, 1849, for the assessment of damages, which authorizes compensation for damages purely consequential: Hoffer ». Canal Company, 6 Norris, 221 ; Railway Company v. Gilleland, 6 P. F. Sm., 449 ; Canal Company ». Hill, 6 W.0N. 0., 182 ; Walker ». Railway Company, 103 Mass., 10; Pierce on Railroads, (Ed., 1881,) 177, 178; Mills on Eminent Domain, sec. 87, 89; McKinney z\ Navigation Company, 2 Harris, 65 ; Koch ». Water Company, 15 P. F. Sm., 288; Stump’s Appeal, 38 Leg. Int., 1881, p. 205. Hare v. Com’fh, 8 W. N. C., 121 ; Gordon v. R. R. Co., 6 Id., 405; White'». McKeesport, 40 Leg. Int., 90.
    The right to construct the drains to vent the surface-water implies the right to change the flow of the water: .R. R. Co. ». Young, 9 Casey, 175.
    The company has a right to protect its road-bed against the surface-water by drains, although thereby distributing it upon the land below in a different manner from the way it had been wont to flow : Mills on Eminent Domain, sec. 189 ; Pierce on Railroads, 205 ; Hosher ». R. R. Co., 60 Mo., 329; Munkers ». R. R. Co., Id., 334; Waffle ». R. R. Co., 53 N. Y., 11.
    The release was sufficiently comprehensive to embrace all damages arising from discharge of surface-water upon the land.

      Speer & McMurtrie and A. A. Stevens for defendant in error.

      No exception was taken to the judgment of the court upon the, point reserved, and it is therefore not before this court-."Alien v. Laird, 40 Leg. Int., 425; Bank v. Lefever, 24 P. F. Sm., 49 ; Merkel v. Berks County, 32 P. F. Sm., 505.
    The road was built in 1861 or 1862. The box-drains were not put in until 1878. Therefore, the statutory remedy, provided by the act of 19th February, 1849, could not be invoked. Act of 17th April, 1866, limits the application of the remedy to five years after entry, and to three years after the road shall be in operation: Constitution of 1838, sec. 4, art. 7; Bill of Eights, sec.'10; Constitution of 1874, sec. 8, art. 16 ; Bill of Eights, sec. 10; act of 1849, 2 Purd. Dig., 1218, sec. 34.
    Harrisburg v. Crangle, 8 W. & S., 464; Brown v. Powell, 1 Casey, 229 ; 1 Eedfield’s Law of Eailways, 3d Ed., 337; U. S. v. Arredondo, 6 Peters, 69l, 738 ; Hatch v. Bailway, 25 Vt., 49 ; Eedfield’s Am. Eailway Cases, 302.
    The owner’s right to damages for the trespass is a vested right of which he .cannot be deprived : McClinton v. E. E. Co., 16 P. F. Sm., 404; Dimmick v. Brodhead, 25 P. F. Sm., 464; Fries -o. E. E. Co., 4 Norris, 73; E. E. Co. v. Johnston, 9 P. F. Sm., 291.
    Under Constitution of 1838, corporations are made liable for damages resulting- to private property for the construction, use, or alteration of their works, &c.: Pusey v. Allegheny, 2 Out., 522; Beading v. Althouse, 12 Norris, 400; E. E. Co. v. Bruce, 12 W. N. C., 554; Duncan «. E. E. Co., 7 W. N. C., 551; Malone ¶. City, 12 W. N. C., 396; Gordon t. E. E. Co., 6 Id., 405.
    The argument as to the right of the company to protect its road-bed by drains, although distributing the water on the land below in a different manner, is not supported by authority. Pierce on Eailroads, 205, says “that this doctrine is not accepted in several States.”
    Kauffman v. Griesemer, 2 Casey, 407; Martin v. Biddle, 2 Casey, 415; Miller Laubach, 11 Wr., 154; Pastorius •». Fisher, 1 Eawle, 27 ; Kipka v. Sergeant, 7W. & S., 12 ; Bentz o. Armstrong, 8 W. & S., 40; Gordon v. E. E. Co., 6 W. N. C., 405; Dickinson «. Worcester, 7 Allen, 19 ; White ». Chapin, 12 Allen, 516 ; Butler v. Peck, 16 Ohio St., 384; Tillotson «. Smith, 32 N. H., 90; Angelí on Water Courses, sec. 108.
    The release was not admissible unless specially pleaded: Gilchrist «. Bole, 8 Watts, 358; Johnson v. Kerr, 1 S. & E., 25; Holt «. Bodey, 6 Harris, 207.
    The release recites that the overflow was caused by a

      culvert under the railroad, and releases all damages for the cause aforementioned.. When there is a particular recital in a. deed and then general words follow, the general words are qualified by the particular recital: Bacon’s Abr., Release K. The words of a release are not to be extended beyond the consideration for which it was given: Rapp v. Rapp, 6 Barr, 45 ; McLarren v. Robertson, 8 Harris, 125; Robeson v. Navigation Co., 3 Gr., 190 ; Cottrell’s Est., 2 W. N. C., 83; R. R. Co. v. Johnson, 7 W. & S., 317 ; Pierce v. Sweet, 9 Casey, 151; McLenachan w.Com’th, 1 Rawle, 356; Ege’s Appeal, 3 Watts, 495.
    October 6, 1884,
   the opinion of the Court was delivered by

Green, J.:

We-think the learned court below was in error in .the construction of the release given by the plaintiff. The cause of action was the damage done by flooding the plaintiff’s land with water discharged through several drains under the bed of the defendant’s road. The water, which accumulated over a widely spread surface above the road, was formerly discharged through a single artificial channel or culvert upon the plaintiff’s land. This was from the time the road was built, in 1861, and the plaintiff complained frequently of the injury, until 1876, when his claim for damages was settled and a sum of one hundred dollars was paid him and a formal release executed. It was. contended for the defendant that this release was a bar to the present claim, as it included future as well as past damages. The release was given in 1876, and in 1878 the defendant opened several additional small drains under the road bed, so that thereafter water was discharged through all the drains, instead of through the one which was in existence when the release was given. It was contended by the plaintiff, -and held by the court below, that the release operated only upon the claim for damage done by the flow through the culvert, and therefore the plaintiff might recover for flowing water through the other drains. If the words of the release had been confined to the injury done by the water which flowed through the culvert, this contention and ruling would have been correct. But the language of the release is, as it seems to us, much broader than this. The instrument recites that the plaintiff held a claim for damages for discharging water from an extensive water-shed on the west side of the railroad, through a culvert under the road, and that it was agreed between him and the company that he should be paid one hundred dollars in full satisfaction for all damages which the plaintiff had sustained, or might thereafter sustain', for or by reason of the overflow of his lands “from the cause aforementioned.” Then follow the clauses of the release discharging the defendant from all claim for damages for, or by reason of, the overflow “from the cause aforementioned,” either at any time before or after the date of the release, and concluding thus : “This release to operate a’s a full and complete satisfaction and discharge for all damages that have been heretofore sustained, or that may at any time hereafter be sustained, under any circumstances, from the cause aforementioned, or for or by reason of any other matter, cause, or thing touching or concerning the same.” It is contended that the words “ from the cause aforementioned,” limit the injury covered by the release to that which was occasioned by means of the culvert. There is plausibility in the argument, growing out of the collocation and incorrect use of the words in the earlier portion of the reciting clause of the release. In describing the claim for damages, the paper states it as being ‘ ‘ for and by reason of the overflow of my said lands caused by a culvert under the said Tyrone and Clearfield railroad,” &c., &c. It is certainly not the culvert that caused the plaintiff’s injury, but the flowing of water upon his land, and this flooding is the gravamen or immediate and direct occasion of the damage suffered by the plaintiff, as indeed appears by the remainder of the reciting clause. When, therefore, the words “the cause aforementioned” are repeated in the subsequent parts of the release, we must refer them to the substance of the injury complained of, rather than to the mere channel or vehicle through which the injury was inflicted. Thus read, the instrument means that the damage done to the plaintiff’s land by casting upon it the water gathered from the water-shed above the railroad was liquidated and discharged, both for the past and the future, by the release in question. This view is confirmed by the words “under any circumstances,” which appear in the concluding or releasing clause. They can only have significance by reading them as covering the flooding of the plaintiff’s land by discharging upon it the water from above the railroad in any manner, under any circumstances. If they are to be limited to a flooding through the culvert, they have no meaning which affects the operation of the instrument as a release. It would read precisely the same if they were omitted. If there were any doubt as to the true meaning of the paper, it would be resolved against the plaintiff, on the principle that the words of a deed or grant, in cases of doubt, are to be construed most strongly against the grantor, but we think there is no doubt about it, and that the legal and necessary interpretation of the instrument is as we have stated it. These being our views of the case, the third and fourth assignments of error are sustained, and on them

The judgment is reversed

Trunkey, Steerett, and Clark, JJ., dissent.


author: Trunkey, J.:

text:
    BRADFORD COUNTY.
    January Term, 1883,
    No. 350.
    March 20, 1884.
    Hall v. Coburn.
    In an action of ejectment the testimony of the defendant in effect was that he agreed with the plaintiff, who became the purchaser of land sold bj order of the orphans’ court for the payment of the debts of the defendant’s father, that the plaintiff should convey the lands in dispute, part of the lands of decedent, to the defendant, and that defendant should maintain the family, and give to plaintiff defendant’s share in the estate.
    The testimony of the plaintiff in effect was t;hat the defendant agreed to maintain the family, and give the share in the estate and the further sum of $100. Defendant was in possession and maintained the family. Plaintiff gave his note for the purchase money to the administrator of the estate of the father, “ not to be negotiable, but to be held by the administrator until his final account is settled ” and received his deed. This note constituted the whole estate. The administrator issued execution irpon it, and the share of the defendant in the proceeds remained in the hands of the sheriff.
    Tne Court charged the jury: That the plaintiff was, in any aspect of the ease, entitled to recover the land, the recovery to be released or the verdict to be set aside upon the defendant’s paying to the plaintiff, or paying into court for his use, such sum as under the agreement between the parties remained unpaid.
    Held, there being no evidence that the defendant exercised any control over or interference with his share of the estate after the making of the contract, that this instruction was error.
    Before Merour, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to tlie Court of Common Pleas of Bradford County.

    Ejectment by W. P. Coburn against Isaac E. Hall, to recover forty-four acres of land in Tuscarora township, Bradford county.

      The following facts appeared at the trial, December 22, 1882, before McCollom, P. J.
    Philip P. Hall, the father of Isaac E. Hall, the defendant, died the owner and in possession of a farm which included the land in controversy. O. E. Pickett was appointed administrator of his estate. In May, 1870, on application of the administrator, the orphans’ court made an order authorizing the administrator to sell the farm for the payment of the debts of decedent. In September, 1870, the administrator made his return, setting forth that he had made sale of the premises to J. Gr. Sterling, for the sum of $1,075. The fund arising from this sale constituted the entire estate. John Bishop, the guardian of some of decedent’s minor children, filed exceptions to the sale on the ground of inadequacy of price. The parties met in December, 1870, for the purpose of taking depositions. The defendant testified that at this meeting a written agreement was executed between plaintiff and himself. Evidence was offered of the loss of the instrument. He further testified, inter alia:

    “He agreed to give me one half of this eighty-five acres as it was called, and give me a deed of it as soon as he got his deed, and I was to support the family and take care of them, and make it a home for them, and give him my share, whatever it might be, when it was settled up.

      Q. Your share of what?

      A. My share that occurred from the sale of the place in the administrator’s hands.”
    This testimony was corroborated by several witnesses.
    As a result of this meeting, the bid of Sterling was transferred to the plaintiff, February 14, 1871, the return amended, the sale confirmed, and a deed given to the plaintiff. The plaintiff gave to the administrator a judgment note for $793 29, payable in one year from the final confirmation of the sale, which provided that “this note is not to be negotiable, but to be held by administrator until his final account is settled, and not be collected until his account is finally confirmed by the court.”
    This note was not paid, and the administrator entered judgment upon it to September term, 1879, and issued execution. Defendant’s share in the proceeds of the execution remained in the hands of the sheriff. .The defendant was in possession of the real estate in dispute, and kept a home for the family until they were married.
    The plaintiff denied the contract as alleged, and testified that the defendant made a verbal agreement with him by which defendant was to receive a deed for the forty-four acres of land upon giving Ms share in the estate, and the sum in addition of $100.
    No deed had ever been made by the plaintiff to defendant for this land. The share of defendant in the estate of decedent after the payment of the debts was $68 20.
    The plaintiff presented inter alia the following point:
    Y. That under all the evidence in this case the plaintiff is entitled to recover the land described in the wilt, to be released unto the defendant upon the payment to the plaintiff by the defendant of the purchase price therefor agreed upon, or any part thereof.

      A. I think this point is correct, and I affirm it.
    The Court charged, inter alia, as follows :
    . [“ Now, gentlemen, under the view we take in this case, the plaintiff is, in any aspect of it, entitled to recover this land. That recovery, however, to be released or the verdict in favor of the plaintiff to be set aside upon the defendant’s paying to the plaintiff, or paying into court for his use, such sum as under the agreement between the parties, whatever you may find that to be, remains unpaid. If you find that there was a written contract by which this land was to belong to Hall, he giving for it his share or interest in his father’s estate, then the plaintiff would be entitled to recover in this case the land described in the writ, that recovery to be set aside upon the defendants paying to him, or into court for his use, the value of that share.”]
    [“ The form of your verdict will be that you find for the plaintiff the land described in the writ with costs, to be released upon the defendant’s paying so much, stating the sum that you find the defendant should pay in order to hold this land within such a time, naming the time within which you think he should pay it.”]
    On Ilecember 23, 1883, the jury rendered the following verdict: “The jury aforesaid do say in their verdict, on their oaths, that they find in favor of the plaintiff the land described in the writ, and costs, to be set aside and judgment entered for the defendant on his paying into court, for the use of the plaintiff, the sum of $76 20, with interest and costs within ninety days.”
    December 28, 1883 — Judgment upon the verdict.
    The defendant thereupon took this writ, assigning for error, inter alia, the answer to the plaintiff’s point as above, and the portions of the charge in brackets.

      Dames & Hall for plaintiff in error.

      Coburn was a trustee ex maleficio for the plaintiff in error: Wolford v. Herrington, 86 Pa. St. R., 39 ; Lynch v. Cox, 23 Id., 265; Beck v. Q-raybill, 28 Id., 66 ; Seylar v. Carson, 19 Smith, 86.
    The plaintiff in error should not have been held for costs, as the defendant in error failed to tender a deed.
    The plaintiff in error fully performed the agreement in writing where execution was amply proved. He left in the hands of the sheriff his portion of his father’s estate, and this was under Coburn’s control, and virtually in his possession: Thomas v. Wright, 9 S. & R., 93; Devling v. Williamson, 9 Watts, 311.

      N. O. Elsbree, H. IV". Williams, Llewellyn Elsbree, E. J. Angle for defendant in error.
    April 21, 1884,
   the decision of the Court was delivered by

Trunkey, J.:

It is admitted that the parties contracted for the sale and purchase of the land in controversy, but they differ respecting the price and kind of contract. The plaintiff avers the contract was oral; that he was to convey upon payment of all the purchase money, and that Hall was to give his share of his father’s estate and the further sum of one hundred dollars. It appears that, at the date of the making of the contract, the estate was.merely the purchase money of land sold by the administrator at orphans’ court sale, and, by arrangement, Coburn was to take the place of the bidder; some debts and expenses were to be paid out of that money. On May 1, 1871, Coburn gave his note to the administrator, which was not to be negotiable, and not to be collected until confirmation by the court of the final administration account. The defendant alleges there was a written agreement that Coburn would convey the land to him soon as he received his deed from the administrator; that defendant would take care, of the family and make the land a home for them, and give his share of his father’s estate, whatever it might be when settled, to Coburn. Whichever of the alleged contracts is the true one, the case is simple. No trust1 relation is involved. Upon the verity of Coburn’s allegation, he is entitled to one hundred dollars and Hall’s share of the estate, and is not bound to make a deed till payment. If the contract be as alleged by Hall, he was to give nothing but his share in the estate, and Coburn was bound to convey to Hall soon as he got his deed from the administrator. Coburn already had the share in his hands, and was not bound to pay it to the administrator until settlement of his account. The contract to give the share was virtually executed. If the administrator collected the note, Coburn was entitled to receive from him the share he purchased from Hall. There is no complaint that Hall did not give the care and home to the family as he agreed, and they were interested in that part of the contract, not Coburn. It is unlikely that Coburn would have been allowed to take the place of the bidder had he not made the contract to sell this part of the land to Hall. The contract imposed no duty on Hall respecting the settlement of the estate— he has not received any money, directly or indirectly, from the administrator on the share he gave to Coburn. If it has been left in the hands of the sheriff, so far as shown, it is neither merit nor fault in Hall; had lie taken it, he would have been in fault. Then, if the contract was made, as Hall alleges, and he has not in any way hindered Coburn from receiving and realizing the share of the estate, he owes Coburn nothing.

The amount of money naujed in the verdict to be paid to release the land indicates that the jury found the contract as alleged by defendant, and that he had performed his part. If so, it is unjust that he be made to pay costs. The plaintiff should have delivered him a deed for the land instead of suing him. But if the jury found that he was to pay one hundred dollars, besides the share of the estate, the plaintiff was entitled to a verdict for the land, to be released upon payment of the amount due and costs.

The jury were instructed that, under all the evidence in the case, the plaintiff was entitled to recover the laud, to be released upon the payment by defendant of the purchase price therefor, or any part thereof, and costs. That was correct, if the defendant owed any purchase money. Upon the facts alleged by the plaintiff, upon the evidence alone adduced by him, there is no error in the instructions set out in the third, fourth, and fifth assignments. Upon the facts alleged by the defendant, the plaintiff had no right to a verdict for the land. How could the jury find that the defendant should pay the amount of the share of the estate, if he had abstained from control over, or interference with, or receipt of that share after the making of the contract ? As the case comes, no evidence appears to warrant inference that he exercised any control over the share of the estate after the contract. If the administrator or other persons caused the note to be collected by the sheriff, that of itself did not obligate the defendant to ascertain and receive the distributive share and pay it over to the plaintiff. The last three assignments must be sustained, for the instructions should have been properly adapted to whichever condition of facts the jury were warranted in finding from the testimony. Under proper instructions they might have found a verdict for the defendant.

Judgment reversed and venire facias de novo awarded.


text:
    CHESTER COUNTY.
    January Term, 1884,
    No. 113.
    February 12, 1884.
    Spackman’s Appeal.
    1. An uncle and niece had been living together for a number of years in a house belonging to the uncle, he paying all the expenses, and she having charge of the household. At his request, she bought the house and lot from him for cash; at which time he said to her, “I will expect a home there as long as I live, and I will pay all expenses as I have been doing.” After her uncle’s death, the niece claimed from his estate rent for the use and occupation of the house and lot. Held, that although the parties were related, the subject of the claim is not one which comes within the prohibited class requiring an express contract and positive proof.
    2. It was not error for the auditor to find that there was a contract to pay for the use of the house and lot as a part of the expenses which the decedent agreed to pay as an entirety.
    3. The mere relationship of uncle and niece would not suffice to rebut the presumption of an implied contract in view of all the circumstances of the case.
    Before Mercur, C. J.; Gordon, Paxson, • Trunkey, Sterrett, and Green, JJ.
    Appeal of Norris Spackman,. Lee Spackman, Huida Spackman, executrix of George Spackman, deceased, Jane Spackman, Rachel Jones, Rachel A. Powell, George James, Rachel Pennypacker, and Mary Conrad, from the decree of Orphans’ Court of Chester County, confirming the auditor’s report upon the distribution of the balance shown by the account of Robert F. Hoopes, administrator of Isaac Spackman, deceased.
    Frpm the testimony, the auditor, Alfred P. Reid, Esq., found, inter ali'a, the following facts:
    Isaac Spackman was a bachelor, residing, at the time of his death, at the Grove, in West Whiteland township, on a small property owned by Malinda Thompson. He had resided there since 1864. His household consisted of himself, his nieces, Malinda Thompson and Jane Spackman, and a grand niece, Jennie Spackman, a daughter of Lee Spackman. He managed the little property on which he lived, maintained the family, and received the income of the lot. Before 1864, he owned and carried on a farm in the same township. He was about eighty-two years of age when he died, May 12, 1882.
    Malinda Thompson presents two claims : one is for services rendered to Isaac Spackman for the six years prior to his death at four dollars per week, and the other for rent for the use and occupation of her property for six years at $100 per year. Prior to 1855, Mrs. Thompson and her husband occupied part of Isaac Spackman’s house on his farm. Her husband then left her, and they have not lived together since. She had two children, boy and girl, aged twelve and fifteen. Isaac Spackman then took Mrs. Thompson and her children into his family, consisting of himself, his sister, and sister-in-law; the two latter died more than twenty years ago. Mrs. Thompson had resided with Isaac and had charge of his household ever since. Her age now is seventy-six. Her daughter remained in the family until her marriage, and her son until he went to his trade. She had no property when taken in by Isaac. No accounts were kept either by Isaac or her, and no settlements or money paid her during, all this time ; the only business transaction that appears to have taken place between them was in 1866. Isaac then owned the property at the Grove, where he was then living, and where he died. Malinda Thompson’s father had died shortly before that date. Isaac said to her, “Would you like to buy this property?” (meaning the property on which they were living.) She said she “had no money to buy it with.” Isaac said, “Will you give me the money you get from your father's estate if I make you a deed for the property?” To which she replied that she would. Isaac further said to her, “I will expect a home there as long as I live, and I will pay all expenses as I have been doing.” Mrs. Thompson detailed this transaction to the administrator, Mr. Hoopes, since Isaac’s death, and said further that “nothing else had ever been said about any contract between them.”
    On Mgy 19. 1866, Isaac made her a deed for the property. They lived on just as before.
    In 1875 Mrs. Thompson was somewhat afflicted with rheumatism, rendering her less active and able to perform the household duties than before, during the remaining years of Isaac’s life. She,.however, did the baking, sewing, helped in some of the household duties, had general charge of the household affairs, administered to him his medicine, and nursed and bandaged his limbs when they needed attention, and attended faithfully upon him and his household.
    • The auditor reported, inter alia, as follows :
    “The rental value of the property from the evidence is $100 per annum. The consideration named in the deed is $1,500. Before that time, Isaac had supplied the residence. He got her money, she got the property, which furnished them a home henceforward. He kept the house and maintained the family as before. He managed the property and got the proceeds. The law will presume an agreement to pay for its use and occupation; his own words would lead to the same conclusion. He desired to occupy it the rest of his days and to pay all expenses, as he had been doing. If he kept up his home, as he desired to do, and occupied some one’s property other than his own, the rent would be a necessary part of the expense. He proposed using her property for that purpose, and must necessarily have contemplated paying for its use. Justice and equity require it also. He got her money and had the use of it ever since. He had occupied, with his family, her property, which he gave her for the money ; he should, therefore, pay her for its use. She will, therefore, be allowed $100 per year rent for six years, with interest from the end of each year, making $720, with interest from the date of his death to this time, making $774.”
    The remaining distributees filed an exception to the award to Malinda Thompson of six years’ rent, at $100 per annum, with interest, or $774, .which exception was subsequently dismissed by the Court, and the report confirmed.
    The remaining distributees then took ah appeal and assigned as error the dismissal of the exception and the confirmation of the report.

      D. Smith Talbot and William M. Hayes for appellants.
    The finding of an auditor, approved by the court below, will not prevent this court from doing justice to the parties on an appeal: Miller's Appeal, 40 Leg. Int., 475.
    There was no evidence of a-ny payment on account nor demand for payment; no receipts and no conversations in relation to the rent claimed. Decedent conveyed the property to appellee for half its value upon the condition that he should have a home there as long as he lived. The bill originally presented to the administrator was for services only, and contained no claim for rent, showing that this claim was an after-thought.

      Washington Townsend for appellee.
    In Miller’s Appeal, 40 Leg. Int., 475, the finding of the auditor was reversed because he had disregarded the evidence : See Fahnestock’s Appeal, 14 W. N. C., 50 ; Men-gas’ Appeal, 7 Harris, 221.
    There was a contract for rent fairly deducible from the facts. Relationship alone does not overcome the presumption that a promise to pay is intended for services rendered, except in the case of parent and child: Smith v. Milligan, 7 Wr., 107 ; Gordner *. Heffley, 13 Wr., 163; Schoch v. Garrett, 19 P. F. Sm., 144; Russell’s Est., 7 Phila., 64; Estate McCarty, 9 Id., 318.

    The implied contract for the payment of rent is a much stronger case than where the claim is for personal services.
    February 25, 1884,
   the opinion of the Court was delivered by

Green, J.:

The claim of the appellee in this case, which was allowed by the auditor, was not a claim for personal services, or for boarding against the estate of the decedent, and hence is not necessarily within the rule which requires direct proof of an express contract. It is a claim for rent of a house belonging to the appellee, and which was occupied by the decedent for a number of years before his death. The relationship between the parties was that of uncle and niece. The latter purchased the property from the former for a stipulated price, which was paid in money, and from that time on the niece was the owner of the premises. Prior to that date, the uncle had lived with the niece in the same house, and had paid all the expenses, and furnished the house and ground attached in addition. In 1866, at his request, she bought the house and lot from him at the price fixed by himself — $700—which she paid him in money. When this was done, he said to her, “I will expect a home there as long as I live, and I will pay all expenses as I have been doing.” There was no contract that he was to have the right, absolutely, to live in the house during the z’est of his life as a part of the considez’ation of the’ sale. This would be a charge on the property if it had been agreed upon in proper form, almost equivalent to an estate for his own life in the lana. But there was no such agreement. The expression that he would expect a home there does not necessarily import anything more than a desire on his part to continue living with his niece as he had been doing, he to pay all the expenses. As to one part of the expenses, the relation of the parties was changed. Up to the time of the deed he had provided the house and lot at his own expense. After that time she provided them at her expense. She had parted with her own money in order to enable herself to do this, and thereby deprived herself of the income from the money which she paid to her uncle for the property. That income she lost and he gained, and in that respect he did not continue to pay all the expense as he had been doing, and as he agreed to do in the future, unless he paid her an equivalent in money for the use and occupation of the house. This he did not do, and the present claim is founded upon the theory of a legal obligation to make compensation for the use and occupation of the premises for the six years preceding his death. We think in view of the circumstances that the conclusion of the auditor that there was a liability for the use of the premises is correct. The mere fact of the use and occupation would, as between strangers, create an implied liability. Here, while the parties were not strangers; they were not closely related, and the subject of the claim is not one which comes within the prohibited class requiring an express contract and positive proof. On the contrary, there was sufficient in the spoken words which passed between the parties to carry the case to a jury had there been a common law action on the question of a contract relation. The auditor has found, practically, that there was a contract to pay for the use of the house and lot as a part of the expenses which the decedent agreed to pay as an entirety. We cannot say there was error in this, or in the conclusion that the mere relationship of uncle and niece would not suffice to rebut the presumption of an implied contract in view of all the circumstances of the case. The action of the court below was a concurrence, in the findings of the auditor, both in fact and law, and we are not disposed to interfere with them.

Decree affirmed at the costs of the appellants.


author: Paxson, J.:

text:
    CLINTON COUNTY.
    January Term, 1884,
    No. 96.
    April 29, 1884.
    Welliver’s Appeal.
    1. In an equity suit brought by terre tenants to restrain execution upon a judgment upon a mortgage, a decree was entered January 24, 1881, allowing the mortgagee to collect the amount found to be due him, with costs of suit, and “ all costs of these proceedings in equity, excepting the costs incurred before the master by the taking of testimony in behalf of the defendants,” which costs the defendants shall pay. The sheriff sold the mortgaged- premises for a sum less than the amount found to bé due to the mortgagee. On July 2,1881, the court made a decree ordering that the defendants pay the master ten dollars and the plaintiffs pay him forty dollars. On July 9,1881, in the absence of counsel for defendants, the court modified the decree of July 2 so “ as to release the plaintiffs from paying any portion of the costs,” and ordered the sheriff to pay the master forty dollars out of the sale of the real estate. To this order the sheriff made answer, setting out the sale and its proceeds. On October 13,1883, the court decreed that the order or rule upon the sheriff of July 9,1881, be discharged and annulled, that the plaintiffs pay the master forty dollars and all of the other costs, except the costs of witnesses examined upon the part of the defendants, and upon default awarded an attachment. Held : That the first decree was final and fixed the liability of the plaintiffs for the costs.
    2. In the absence of an appeal, that decree could not be changed without the consent of the parties.
    3. The decree of July 2, 1881, was entirely in harmony with and evidently intended to aid the former decree.
    4. The decree of July 9, 1881, as a final decree, is insensible and might well be treated as a mere rule upon the sheriff.
    5. The order to pay the costs out of the sale of the real estate was a mistake, and the costs of the equity suit could not be taxed in that case.
    6. An attachment does not lie for costs.
    Before Goedon, Paxson, Tetjnkey, Steeeett, and Geebn, JJ.; Meeoue, C. J., and Claek, J., absent.
    Appeal of John N. Welliver and Sarah E. Welliver, his wife, and Jacob Brown from a decree of the Court of Common Pleas of Clinton County, imposing upon them the costs of an equity suit in which they were complainants.
    Bill in equity between John N. Welliver and Sarah E. Welliver, his wife, in right of said wife and Jacob Brown, complainants, and Joseph Nesbit and John Candor, sheriff of Clinton county.
    The bill set forth that on May 7, 1866, James W. Quiggle executed to L. A. Mackey a bond and mortgage for the sum of $4,500; that Mackey'subsequently assigned the mortgage to Joseph Nesbit; that Quiggle had paid various sums on the mortgage, so that it was reduced to a sum not exceeding $3,000 ; that Mrs. Sarah E. Welliver and Jacob Brown were at present the owners of parts of the mortgaged premises ; that a scire ‘facias had issued on the mortgage and Quiggle had confessed judgment on the sci.fa. for $6,075 and costs; that the plaintiffs had no notice of the sci. fa. and no opportunity to defend against the mortgage ; that a levari facias had been issued on the judgment, and that the sheriff was about to sell the premises.
    The bill prayed for an injunction to restrain the sale, and that the judgment be opened to permit the complainants to show the amount a-ctually and legally due on the mortgage.
    The defendants’ answer admitted payments, and the master found that the amount due on the mortgage on January 1, 1881, was $2,563 76. The master, T. C. Hippie, reported that he could “see no reasons why Joseph Nesbit should not be allowed to collect out of the premises * * * the said sum of $2,563 76, with interest from January 1, 1881, and with costs of suit.”
    In accordance with the recommendation of the master, on January 24, 1881, the court, Mayek, P. J., decreed that the plaintiffs’ bills in equity filed in said cause be dismissed; that the preliminary injunction be dissolved, and that the said Joseph Nesbit be allowed to collect out of the real estate of plaintiffs, by execution process, “ the sum of two thousand five hundred and sixty-three and ^j-th dollars, with costs of suit and all costs of these proceedings in equity, excepting the costs incurred before the master by the taking of testimony in behalf of the defendants, which costs the said Joseph Nesbitt shall pay.”
    On April 16, 1881, the sheriff sold the mortgaged premises to Joseph Nesbit for $1,850, the costs of the sale being $50 93, leaving for distribution the sum of $1,799 07.
    On July 2, 1881, the Court decreed “that Joseph Nesbit, one of the defendants, pay the master ten dollars, and that the plaintiffs pay the master forty dollars, as charged upon said report, within fifteen days.”
    On July 9, 1881, the Court, at the suggestion of the plaintiffs’" counsel, and in the absence,of Nesbit’s counsel, and of the sheriff, modified the decree of July 2, as follows :
    “July 9, 1881, the order of the Court of July 2, 1881, is so far modified as to release the plaintiffs from paying any portion of the costs in this case, and it is hereby ordered that the sheriff pay T. C. Hippie, out of the sale of the real estate, forty dollars, and also pay the balance of the costs in this case.”
    To this order the sheriff made answer that he had sold the premises to Joseph Nesbit for $1,850; that the costs, amounting to $50 93, together with $2.50 the cost of the deed, had been placed in his hands by Nesbit, and that he had acknowledged, though not delivered, a deed to Nesbit. He further suggested that by the report of the master there appeared to be due to Nesbit $2,563 76 with interest from January 1, 1881, and costs of the suit, “and after applying to said sum the said net amount arising from said sales of parcels ‘A’ and ‘B,’ there yet remains due and unpaid of said sum of $2,563 76 and interest, a balance of more than $800, and, therefore, it will result, if said order of your Honorable Court is not modified or changed, that Joseph Nesbit will be forced to personally pay the costs and $40, part of the master’s fee, which he alleges and claims are to be paid by the plaintiffs in said bill in equity, and with the payment of which he has nothing to do. Your respondent, therefore, prays your Honorable Court that if Joseph Nesbit has the right to receive a delivery of said deed on the payment of said $50 93 and costs of the deed, that said order may be done away with, and that an order of your Honorable Court be made authorizing your respondent to deliver to Joseph Nesbit said deed without any further payment than the $50 93 and $2 50 being made by him, of that your Honors grant such further relief, &c.”
    On October 13, 1883, Okvis, P. J., of the Forty-ninth district, sitting specially, entered the following decree:
    “And now, to wit: October 13, 1883, after argument and due consideration, it is ordered, adjudged, and decreed that the order of a rule upon R. S. Barker, late sheriff of Clinton county, to pay to T. C. Hippie, master, $40 of his fee, and the other costs in this case be discharged and annulled, and the said, sheriff is hereby directed to deliver to Joseph Nesbit tlie sheriff’s deed for the property sold upon his receipting for $1,799 07, the proceeds of the sale belonging to him as a lien creditor, if the same is not already receipted for, without further delay.”
    And it is further ordered that the plaintiffs in this case, viz: Jacob Brown, John N. Welliver, and Sarah E. Welliver, pay to T. C. Hippie, master, the balance of his fee as master, to wit: the sum of $40, and that they pay all the other costs in this case, except the costs of the witnesses examined before the master on the part of the defendants, and that these costs be paid within thirty days from notice of this decree, and in default of such payment for thirty days, an attachment is awarded against said plaintiffs to enforce such payment. ’ ’ In the opinion accompanying this decree the Court said, inter alia: “This order, (July 9, 1881,) though purporting to be a peremptory order on the sheriff to pay $40 of the master’s fee and costs in this equity suit out of the.proceeds of the sale of real estate having been made in the absence of and without notice to the sheriff, has ever since been very properly treated, both by the Court and the counsel for all parties, as merely a call upon the sheriff to show cause why he should not pay the amounts specified therein. Treating this as a rule to show cause, on August 27,1881, R. S. Barker,Esq., high sheriff of the county, filed an answer. * * * The order of July 9 goes further and says ‘the order of the Court of July 2, 1881, is so far modified as to release the plaintiffs from paying any portion of the costs in this case.’ This was certainly an Inadvertence into which the Court was led by suggestions of counsel without having the record of the case before it. The order of July 2 was in the nature of an execution process at the instance of the master to enforce a part of the decree of January 24, 1881. That was a final decree, unreversed and. unappealed from. The order of July 9 does not purport to alter or amend it. No reasons have been given, and we can conceive of no good reason that could be assigned for altering or amending it. To change the decree now so as to provide that the defendant in this bill, Joseph Nesbit, shall pay all costs in the case, would be both illegal and inequitable.”
    The complainants appealed, assigning the following specifications of error:

      First. The president judge of the Forty-ninth judicial district erred in this : that he assumed jurisdiction to review the proceedings, and dissolve and annul a final decree of the court of common pleas of Clinton county in equity to which no exceptions had been filed, and from which no appeal had been taken.

      Second. The judge erred in this : that he made a personal decree against the plaintiffs, not justified by the finding of the master, whose said finding simply permitted the plaintiff in the levari facias to make the costs out of the property.

      Third. The judge erred in this : that ne awarded an attachment against the plaintiffs in default of payment.

      W. C. Kress for appellants.
    The decree of July 9. 1881, is final and definitive, and the Court had no power to set it aside or annul it. “A decree in equity is as conclusive as a judgment at law Westcott «. Edmonds, 68 Pa., 34; Kelsey v. Murphy, 26 Pa., 78 ; Williams v. Row, 62 Pa., 118 ; Savior v. Hicks, 36 Pa., 392.
    The Court erred in awarding an attachment against the plaintiff' in default of payment: Ex ret. Scott v. The Jailer, 1 Grant, 237 ; Lane v. Baker, 2 Grant, 424 ; Pierce v. Scott, 40 Leg. Intel., 320.

      C. O. Furst for appellee.
    June 9, 1884,
   the opinion of the Court was filed by

Paxson, J.:

This is a question of costs. We have no less than four decrees of the court below, from the last of which this appeal was taken.

The first decree was made January 24, 1881, and was a final decree in the cause. While it is not clearly expressed, it is yet evident that the plaintiffs’ bill was dismissed, the injunction dissolved, and the costs of the suit in equity, “ excepting the costs incurred before the master by the taking of testimony in behalf of the defendants,” were imposed upon the plaintiff. That portion of the decree regarding the costs is obscure, but we think the meaning of the decree is to put the costs as above stated upon the plaintiff. It provides for collecting them out of his property, and although the decree could not be enforced as made ; that is to say, the costs in the suit in equity could not be taxed and collected in another and independent suit upon the mortgage, yet we are of opinion the liability of the plaintiff for the, costs was fixed by this decree, and, as there was no appeal therefrom, we are unable to see how it could afterwards be changed without the consent of the parties.

Next came the decree of July 2, 1881, which provided merely for the payment of the master’s fee of fifty dollars. Ten dollars thereof was ordered to be paid by Joseph Nesbit, one of the defendants, and the remaining forty dollars by the plaintiffs. This was in entire harmony with the decree of January 24, and was evidently in aid thereof.

Then we have the decree of July 9, 1881, which is called the “final decree as to costs.” It provides that “the order of the court of July 2, 1881, is so far modified as to release the plaintiffs from paying any portion of the costs in this case, and it is hereby ordered that the sheriff pay T. C. Hippie, out of the sale of the real estate, forty dollars, and also to pay the balance of the costs in this case.”

It was urged that this order was intendea and treated as a rule upon the sheriff to show cause why the costs .in the equity suit should not be paid out of the funds in his hands produced by the sale of the plaintiffs’ real estate. There is some ground for this contention. The sheriff filed an answer, in which he set forth that he had no funds in his hands applicable to the costs ; that the mortgaged premises sold for less than the mortgage debt, and that he had taken the receipt of the mortgage creditor for the amount of the bid, less the costs of the sale.

Thus the matter stood until October 13, 1883, when the Court, treating the order of July 9, 1881, as a rule upon the sheriff, discharged said rule, directed the sheriff to deliver to Joseph Nesbit the sheriff’s deed for the property sold upon his receipting for $1,799 07, the proceeds of the sale belonging to him as a lien creditor, and that the plaintiffs pay the sum of forty dollars to the master as their proportion of the costs; that they pay all the other costs in the case, and that in default of such payment an attachment shall issue against said plaintiff to enforce payment of the sum.

It is obvious that this decree is in entire harmony with the final decree of the Court, made January 24, 1881, and, so far as it seeks the enforcement of that decree, is unobjectionable. Is the decree of July 9, 1881, in the way? IVe think not. We might well treat that order as the court below regarded it, as a mere rule upon the sheriff. As a final decree as to costs, it is insensible. It appears to release the plaintiffs from paying any portion of the costs, and yet it orders the costs to be paid out of the proceeds of the sale of the plaintiffs’ real estate. This order, as well as the final decree of January 24, 1881, was evidently made by the Court under the belief that the sale of the mortgaged premises of the plaintiffs would produce sufficient funds to pay the debt, interest, and costs upon that writ, the costs of the sheriff’s sale, and the costs in the equity suit. This, as we have said, was a mistake. As before observed, the costs in the equity suit could not be taxed in that case, and there was no fund to pay them. Upon whom, then, must the costs fall? Clearly upon the plaintiffs, whose bill was dismissed, and who were fixed for the costs by the decree of January 24, 1881.

Further, if we treat the order of July 9 as a decree as to costs, it will not avail, as it conflicts with the final decree of January 24. That decree was not appealed from. The order of July 2 was in the nature of execution process to enforce the decree of January 24. It does not purport to alter or amend it. That was a final and definitive decree, unreversed and unappealed. That portion of the order of July 9 which says: “The order of the court of July 2, 1881, is so far modified as to release the plaintiffs from paying any portion of the costs in the case.” was evidently inadvertently made by the court below upon the suggestion of counsel, without having the record of the case before it. It was so stated by the learned judge below in his opinion.

Objection was made to' that portion of the decree of October 13, 1883, which orders an attachment to go out, upon failure of the plaintiffs to pay the costs. As no attachment has in fact been issued; no harm has been done. It is proper to say, however, that an attachment will not lie for costs : Pierce v. Scott, Legal Int., Vol. 40, p. 320.

The decree is affirmed and the appeal dismissed at the costs of the appellants.


text:
    CRAWFORD COUNTY.
    July Term, 1883,
    No. 57.
    February 6, 1884.
    Warder et al. v. Blair.
    1. Where the manufacturer of a reaper sells it to a farmer, he impliedly warrants that it will do the kind of work for which it was made.
    2. It must be capable of a fair ordinary average test by a farmer.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, . Green, añd Clark, JJ.
    Error to the Court of Common Pleas of Crawford County.

      Asstompsit by Warder, Bushnell, and Glessner against Hugh Blair, to recover the price of a reaper alleged to have been-sold and delivered by plaintiffs to defendant.

      On the trial before Church, J., the following facts appeared : The plaintiffs are manufacturers of mowers, reapers, and other agricultural implements, and W. A. T. Andrews is their general agent and salesman for Crawford county. In June, 1882, Andrews sold a reaper belonging to the plaintiffs, and of their manufacture, to the defendant. As to the conditions of the-sale, the evidence was conflicting. The defendant'and his son testified that Andrews had promised that “the machine would be a good one, and run light, and do its work in No. 1 good order, and give good satisfaction, and deliver its sheaves good;” that Andrews had further warranted it to do good work in every respect, and to be equal to and run as light as the McGranahan machine, and that if, when the machine was received, it did not do as it was agreed and warranted it should do, the defendant, after a trial of it, should be privileged to return it.
    The defendant and a number of other witnesses testified that the machine was tried upon several days after defendant’s receipt of it, in cutting wheat, and that its draught- was much heavier than the McGranahan machine ; that it did not do as good work as that reaper, and that it did its work badly. Some of the witnesses, upon whose farms the .reaper had been used, testified that they would not have it in their fields. The defendant, after trying the machine about one week, returned it to Andrews, leaving it in front of the latter’s house. One of defendant’s witnesses, Tedlock, who had been at work on Andrews’ farm at the time the machine was returned, testified that he had asked Andrews why it was Blair had brought the machine back; “he said he didn’t know; says he, ‘ I understand it didn’t do good work, or Mr. Blair didn’t like it.’ I asked him myself if Mr. Blair didn’t get it on trial; he said he did ; he said he got it to cut two or three pieces of grain ; if it done good work he was to keep it; if it didn’t do good work, he was to return it.”
    Andrews, testifying for the plaintiffs, denied that he had given any warranty with the machine, and that he had any conversation with Tedlock such as is noted above ; he and other of plaintiffs’ witnesses testified that the machine sold to Blair did good work, and that any bad results obtained from it were due to unskillful handling.
    The plaintiffs submitted the following point:
    “That if the jury find, from the evidence, that the sale was upon condition that the reaper should do good work, the defendant is bound to show that the defective work complained of was through no fault of his, and that the reaper was not capable of doing good work by the exercise of ordinary skill in its management and use.”
    The Court answered this point as follows:
    This point is affirmed.
    [You will bear in mind, gentlemen, that a farmer buys a mowrer or reaper expecting it to be used by a farmer of average, ordinary intelligence in the use and manipulation of mowers and reapers. A farmer is not required, when he buys a machine, to have a learned machinist to fix it up and run it for him, and to see that the nuts and bolts are kept in their places. It is not necessary that a farmer should keep an agent of the manufacturer about him. It must be such a machine as is used by the ordinary, average farmer in the grain field. Otherwise a machine might be built of the best mechanism theoretically, but unfortunately of no use to the farmer, because he would not have that degree of skill as a machinist to run it. It must be capable of a fair, ordinary, average test by a farmer. Machines are made and sold to be used by farmers, and not by persons skilled above their fellows in mechanics.]
    Exception. (Sixth assignment of error.)
    The Court charged the jury, inter alia, as follows :
    [A man sells a mowing machine or reaper to another, presumably with the understanding that the reaper will do the work for which it is made, for which it was bought, and for which it is sold.]
    Exception. (First assignment of error.)
    Yerdict for defendant and judgment thereon; upon which plaintiffs took this writ, assigning for error, inter alia, the portions of the charge of the court included within brackets above.

      Geo. F. Davenport for plaintiffs in error.
    The plaintiffs alleged the sale of a Champion reaper to defendant. He admitted the sale, but alleged a warranty that it would do good work — as good as McGranahan’s reaper — and a breach of the warranty. There were, therefore, but two questions in the case : ■ First. Was there a warranty ? Second. Was there a breach ?
    In the first assignment, the Court, in substance, charged the jury that there is, in the sale of a reaper, an implied warranty of fitness. That is not the law. A distinction is made where a thing is bought for a special purpose, and a special thing is bought: Port Carbon Iron Company ®. Groves, 18 Sm., 149. <
    True, the Court afterwards instructed the jury there was an allegation of an express warranty; but if, under, the evidence, they did not find that, still, under the charge, they might have found for the defendant under an implied warranty.

      Brawley & McCHiniock for defendant in error.
    The Court substantially charged the jury that the defendant’s right to set up, as a defense, the imperfections of the machine, depended upon the existence of an “express warranty.”
    Whereas, under the circumstances of this sale, there would be an implied warranty by the plaintiffs that the machine would do the work for which it was made and purchased well — the original agreement being executory ; if, upon receipt of the machine, it did not do'the work for which it was made and purchased, it was the right of the vendee to return the machine, and release himself of the obligation of the contract: 1 Parsons on Contract, 586; Jones v. Bright, 5 Bing., 533 ; Laing ®. Fidgeon, 6 Taunton, 108 ; Brown ®. Edgington, 2 Man. and G., 279 ; Shepherd ». Pybus, 3 Man. and G., 868; Howa d v. Hoey, 23 Wend., 351; Hart®. Wright, 17 Wend., 267.
    February 18th, 1884.
   Per Curiam :

The plaintiffs were not only the vendors, but they were the manufacturers of the machine sold to the defendant. Where a manufacturer of a reaper sells one to a farmer, we think it is sold and bought with the understanding that it will do the kind of work for which it was made. Here, however, there was evidence of an agreement on the part of the’vendor that it would do as good work as another machine named. The jury have found that it was not as good, and did not do good work. The assignments are not sustained.

Judgment affirmed