author: Mr. Justice Green

text:
    Rahe versus The Real Estate Savings Bank.
    1. When an ante-nuptial agreement does not contain express words, bringing subsequently acquired property of either party within its operation, the widow has no life estate in such property of which the husband died seised.
    2. To create estates in land in this mode, the implication must be very clear, plain and necessary to effectuate the manifest intent of the parties.
    3. Undecided whether in searching a title it is necessary to look for ante-nuptial contracts which are recorded.
    November 6th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 89.
    EjeGtment by the Real Estate Savings Bank against Mary Elizabeth Rahe for a lot of ground in the city of Pittsburgh.
    On the 30th of May 1854, Matthias Rahe and Mary E. Bushe executed a marriage settlement. On the next day they were married, and on the 27th of February 1856, the agreement was duly recorded in the recorder’s office of Allegheny county. In 1859, Matthias Rahe purchased- a house and lot in what is now known as the East End of Pittsburgh, and took title to it in his own name. He and his wife lived on the property from that year until March 7th 1878, when Mr. Rahe died, leaving his widow in possession. On the 13th of February 1873, Mr. Rahe executed and delivered to the Real Estate Savings Bank a mortgage for about $4000 on the property. He failed to pay it when due, and proceedings wmre commenced by the bank against him on the. mortgage, judgment had, and the property sold, the bank becoming the purchaser. Possession of the premises was demanded of Mrs. Rahe, but she refused to surrender them, and this action of ejectment was brought for their recovery.
    The plaintiff at the trial having shown title to the premises in Mr. Rahe, gave in evidence the mortgage givén by him, and the record of the proceedings on it, the judgment, the sale by the sheriff and his deed, and rested.
    The defendant then gave in evidence the following marriage settlement, and proved that it had been duly recorded on the 27th of February 1856, three years before Mr. Rahe got title to the premises in dispute.
    Marriage Agreement.

    This agreement, made and concluded this thirtieth day of May, in the year of our Lord one thousand eight hundred and fifty-four, between Matthias Rahe, of the city. of Pittsburgh, party of the first part, and Mary Elizabeth Busche, widow of Henry Busche, deceased, party of the second part, witnesseth that whereas a marriage is intended to be had and solemnized between the said Matthias and the said Mary Elizabeth, and both the said parties are possessed of certain property, that of the said Mary Elizabeth consisting of personal property, which will be, on her marriage, the one-third part of the estate of the said Henry Busche, deceased, and,' whereas, both of the said parties are desirous of making a fair and equitable arrangement so that the greatest amount of good may be derived from the separate property of each of said parties, for their mutual benefit and advantage. Now, therefore, in order to pffect the said intentions, and in consideration of the.sum of five dollars to him in hand well and truly paid, the said Matthias, for himself, his heirs, executors, administrators, has agreed and by these presents does covenant and agree to and with the said Mary Elizabeth, her heirs, executors, administrators and assigns, to wit:
    That all the goods, chattels and effects of the said Mary Elizabeth shall remain her own separate property after the solemnization of marriage as before, so that the same shall not be liable for the debts of said Matthias or in any manner subject to his control, and in case the said Mary Elizabeth shall survive the said Matthias, then that the said Mary Elizabeth shall, after the decease of said Matthias, for the full term and period of her natural life, have the full, free and exclusive possession, control, use and enjoyment of all her own property, as well as the property of the said Matthias of every species and description whatever, real, personal and mixed, and receive all the rents, issues and profits thereof; and the said Mary Elizabeth, for herself, her heirs, executors, administrators and assigns, has agreed, and by these presents does covenant .and agree to and with the said Matthias, his heirs, executors, administrators and assigns, that she will well and truly pay or cause- to- be paid and permit the said Matthias to receive the interest and profits which .shall arise and accrue from the money and personal estate of the said Mary Elizabeth for the mutual support of the said parties, during their joint lives; and in case the said Matthias shall survive the said Mary Elizabeth, then, that the said Matthias shall be entitled to the whole of the personal or other property of the said Mary Elizabeth, as absolute owner thereof.
    It is the further agreement of the said parties that in case the said Mary Elizabeth shall survive the said Matthias, and issue shall have been born of the body of said Mary Elizabeth to the said Matthias, which, or some of which, issue shall be living at the time of the decease of said Mary Elizabeth, then the said issue, or surviving portion thereof, shall take the whole of the separate property of the said Mary Elizabeth, to the exclusion of all other persons whatsoever, and the estate of said Matthias shall be divided among all his heirs share and share alike. But if in the event aforesaid, that the said Mary Elizabeth shall survive the said Matthias, and no issue shall have been born of the body of the said Mary Elizabeth to the said Matthias, or all the said issue shall have become extinct by death, at the time of the decease of the said Mary Elizabeth, then the'separate property of the said Mary Elizabeth shall remain her own absolutely to dispose of by her last will and testament, or otherwise as she may see proper. It is likewise the further agreement of said parties, that in the said event of' the said Mary Elizabeth surviving the said Matthias, the said Mary Elizabeth shall again contract marriage, then from the period of said marriage, and thereafter, the said Mary Elizabeth shall be entitled to have no more or other right or interest in the estate of said Matthias than she shall be entitled to have under the existing laws of this Commonwealth; and the residue of the estate of the said Matthias shall immediately pass to his heirs, or their legal representatives, according to law. It is the further agreement of said parties that said Mary Elizabeth may from time to time invest such portion of her capital as she may deem proper, and on such good security as may be deemed satisfactory: and if the said Mary Elizabeth shall at any time lend her said capital or any part thereof to the said Matthias, then the said Matthias shall give to the said Mary Elizabeth, or to such person as she may designate in trust for her, subject to all the provisions hereinbefore contained, such good and satisfactory security as is ordinarily given for the repayment of money lent.
    In witness whereof we have hereunto set our hands and seals this 30th day of May 1854.
    Matthias Rahe. [l.s.]
    Mary Elizabeth Busohe. [l.s.]
    Sealed and delivered in the presence of Geo. Watson.
    John J. Mitchell.

      Under and by virtue of the terms of this settlement it was claimed by the defendant that as she had not joined in the mortgage she had a life estate in the premises and was entitled to a verdict.
    The court, White, A. L. J., in charging the jury, inter alia, said: .
    “ While the settlement may have been binding, as to creditors upon all real estate owned at the time it was given or recorded, I think it does not apply to subsequently acquired property, so as to cut out creditors who gave credit on the faith of that property.
    “ When the bank, in 1873, loaned the husband m'oney and obtained a mortgage, they were bound to look into the title, and tracing it back they found he acquired it in 1859. They were not bound it go years beyond that to see if he had made any arrangements with any person by which at his death that person was to have an interest in the property. Any deed or- conveyance on record prior to the time that he acquired the title to the lot would not be notice to the creditors in reference to subsequently acquired property. I, therefore, say to you that the settlement, while it may be good between the wife and her husband, would not defeat the right of the bank to recover on their mortgage, to sell on their mortgage and acquire title without actual notice of the marriage settlement, and there is no evidence of that in this case. * * * Under these instructions your verdict should be for the plaintiff with six and one fourth cents-damages and costs.”
    Verdict for plaintiff accordingly when defendant took this writ and alleged that the court erred in the portion of the charge above quoted.

      Hampton & Dalzell, for plaintiff in error.
    It is competent for parties contemplating marriage, not only to settle their property for special purposes, but to create estates upon contingencies as to real property ’ then Owned, or that they may afterwards acquire. This right cannot be questioned, and as a necessary result the estate so created will be protected, if the instrument bringing it into being be duly executed, acknowledged and recorded. The language of the Act of March 18th 1775, as to what instruments may be recorded, is very explicit. It directs the recording of “ all deeds and conveyances which, from and after the publication thereof, shall be made and executed within this province or concerning any lands, tenements or hereditaments in this province, or whereby the same maybe any way affected in law or equity.” Kennedy, J., in Hellman v. Hellman, 4 Rawle 445, construing this act and that of 1715, says: ‘‘From these acts of the legislature, taken collectively, I think it is pretty evident that the ‘ deeds and conveyances, or writings’ therein mentioned and authorized to be recorded must be understood to mean such as pass or create an interest or right of some kind in land, unless, indeed, it be mortgages, which are ex pressly mentioned in other parts of the Act of 1715.”
    That a life estate, such as was explicitly created by this marriage settlement, was an interest in land, is too plain for argument. In 1859, when Mr. Rahe bought the land in dispute, the settlement became operative as to it, and Mrs. Rahe by force of its .terms was seised of an estate in it, to be defeated only in case she died before her husband. Whether her interest be called an equitable one, or a defeasible estate, it is certain the settlement gave her, in the language of Judge Kennedy, “ an interest or a right of some kind in land” the very moment Mr. Rahe took title, for there was then of record the writing duly recorded which created the estate. If this position be correct, it must inevitably follow as a conclusion that notice of it, by reason of the writing creating it being recorded in conformity to the Act of 1775, was given to the bank when the mortgage was taken.

      John A. Wilson, for defendant in error.
    In the great number of decisions on ante-nuptial settlements there is in none of them any attempt to consider any other real estate affected than that mentioned therein, and that was always some estate or an expectancy had in the same at the date of the marriage. None as to future acquisitions of real estate by the husband.
    We admit that as to any real estate or property the said Matthias Rahe owned at the time of marriage, June 1st 1854, and not encumbered by him between say December 1st 1854 and February 27th 1856, the time of the recording of said articles, or “settlement,” that the recording of said settlement as tó such real estate would give to all subsequent creditors or mortgagees notice of the wife’s interest therein. But that the recording of them then was any notice to his creditors or mortgagees as against any real estate acquired by him subsequent thereto (even if so intended by the said settlement), we utterly deny. At the time of the record aforesaid both he and she were strangers to the real estate in this suit and had no shadow of interest or title in the same whatever. We were bound to search the records back to the time Mr. Rahe got title to same, i. e., to, say, January 1st 1859, but no farther. We found no conveyance of his real estate to that period, and back of that the husband was a stranger to it, and the widow claiming now through him, of course, was also a stranger to it; Keller et al. v. Nutz et al., 5 S. & R. 254.
   Mr. Justice Green

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

In the year 1859 Matthias Rahe purchased a house and lot in the east end of Pittsburgh and took title to it-in his own name. On the 13th of February 1873 Mr. Rahe executed and delivered to the Real Estate Savings Bank a mortgage on this property to secure the payment of $4000. He failed to pay the mortgage at maturity and thereupon a sci. fa. was issued on the mortgage, judgment obtained, execution issued, and the property was sold by the sheriff and purchased by the bank. Matthias Rahe and his wife Mary lived on the premises until his death on March 7th 1878. The bank gave notice to Mrs. Rahe, after their purchase, to give up possession of the property, but she refused to do so, and thereupon the present action of ejectment was brought to recover possession. The defence set up by Mrs. Rahe was that she had a life estate in the premises by virtue of an ante-nuptial agreement between her husband and herself, made on the 30th day of May 1854, the day before their marriage, and that as she had not joined in the mortgage to the bank she was entitled to hold possession of the property during her life. The court below was of opinion that this defence was not available because the property in question was acquired after the marriage of the parties, and was not subject to the operation of the marriage articles, and also because the bank had no notice of the existence of the articles, and was not bound by the record of them made several years before Matthias Rahe acquired title to the property in question. In the view which we take of the case, the determination of the latter question becomes unnecessary, and we therefore confine our attention to the interpretation of the ante-nuptial agreement. We are of the opinion that it does not embrace after-acquired property, and therefore it was not necessary for the wife to join in the execution of the mortgage in order to pass a complete title to the bank. The agreement is entirely devoid of any express words, bringing subsequently-acquired property of either party within its operation. Now the proposition of Mrs. Rahe is that she became the absolute owner of an estate for life in land by force of this agreement. Admittedly there are no words conferring such an estate to be found in the instrument. It is plain then that if the estate exists at all it must be by virtue of a necessary implication from the language of the agreement.

It is equally plain that- to create estates in land in this mode, the implication must be very clear, plain and necessary to effectuate the manifest intent of the parties. We have examined this instrument very carefully with a view to determine whether we can give it such an interpretation, and we are constrained to say that we can find no language in it which will permit us to reach such a conclusion. It commences by reciting “that whereas a marriage is intended to be had and solemnized between the said Matthias and the said Mary Elizabeth, and both the said parties are possessed of certain property, that of the said Mary Elizabeth consisting of personal property, which will be on her marriage the one-third part, of the estate of the said Henry Busche, deceased, and whereas, both of the said parties are desirous of making a fair and equitable arrangement so that the greatest amount of good may be derived from the separate property of each of said parties for their mutual benefit and advantages.” It then proceeds to express the agreement of Matthias as follows, viz. : “ That all the goods, chattels and effects of the said Mary Elizabeth shall remain her own separate property after the solemnization of marriage as before so that the same shall not be liable for the debts of the said Matthias or in any manner subject to his control, and in case the said Mary Elizabeth shall survive the said Matthias then that the said Mary Elizabeth shall after the decease of the said Matthias for the full term and period of her natural life have the full, free and exclusive possession and control, use and enjoyment of all her own property, as well as the property of the said Matthias of every species and description whatever, real, personal and mixed, and receive all the rents, issues and profits thereof.” In the next clause Mary agrees that.“she will well and truly pay or cause to be paid, and permit the said Matthias to receive the interest and profits which shall arise -and accrue from the money and personal estate of the said Mary Elizabeth for the mutual support of the said parties during their joint lives; and in case the said Matthias shall survive the said Mary Elizabeth then that the said Matthias shall be entitled to the whole of the personal or other property of the said Mary Elizabeth, as absolute owner thereof.” It is manifest that the subject-matter of the agreement was the property which the parties respectively owned on the day the agreement was made. It is expressly so described in the recital with which the instrument commences.

There the agreement is that the property of “ the said Mary Elizabeth shall remain her own separate property” after the marriage, so that the same shall not be liable for the debts of the said Matthias.” It is too plain for argument that up to this point the agreement is expressly limited to the property which each possessed before the marriage. It is very certain that no property of Mary Elizabeth could remain hers after the marriage except what was hers before the marriage, and it is the same property which is not to be subject to the husband’s debts. Then immediately following this, and without a single word making any change in the subject-matter, the agreement provides that if the wife shall survive the husband she shall have the full possession, control, use and enjoyment of “all her own property” as well as all of her husband’s, during her life. These are the -words which confer upon her whatever interest she has in her husband’s estate under the agreement. To read them as she now claims, we would have to hold that while she was giving to her husband only the property which she owned at the time of the marriage, he was giving to her not only all that he owned prior to the marriage but also and in addition to that, all that he might ever acquire at any time after the marriage and up t.o the time of his death; and that too without any words to that effect, or any words introducing a new subject-matter or in any way changing the description of the property about which they were bargaining. It is true the language describing the property of Matthias is apparently broad, and includes all, of every kind, real, personal and mixed, but the inquiry remains, as of what time this generality of description is predicated. As of the time of his death ? So says the widow now, but the agreement says nothing of the kind. If we refer to that, we find that this descriptive language is used in immediate connection with the words “as well as the property of the said Matthias.” What property ? Manifestly his property already referred to, to wit: property which he owned at the time of .the marriage. To divert these words from their plain and necessary meaning, would require clear and indubitable language to that effect, but there is no such language. The remaining, portions of the agreement contain no words changing in any manner the subject-matter of the contract, but they rather accord with the interpretation we have already given.

Provision is made for the disposition of the property of the wife in certain contingencies, but it is uniformly spoken of as “ the separate property of the said Mary Elizabeth,” and is evidently regarded as the same property which was mentioned in the first clause of the agreement.

For these reasons we think the court below gave a correct construction of the agreement in question, and were right in directing the jury to find a verdict in favor of the plaintiff.

Judgment affirmed.

Justices Mercur and Gordon dissented from this opinion in so far as it declares the agreement does not, as between the parties thereto, apply to property afterwards acquired by Rahe and owned by him when the agreement took effect; but this being the case of a creditor, they concur in the judgment.


source: Caselaw Access Project

license: Public Domain

text:
    McPherson versus The Allegheny National Bank.
    In an action against the endorser of a promissory note he denied absolutely in his affidavit of defence that he had received any notice whatever of non-payment: Held, that this was sufficient to send the case to a jury.
    November 5th 1880.
    Before Sharswood, C. J., Mercu-r, Gordon, Trunkey, Sterrett and Green, JJ. Paxson, J., absent.
    ■ Error to the Court of Common Pleas, No. 1, of .Allegheny county : Of October and November Term 1880, No. 47.
    Case by the Allegheny National Bank against James McPherson.

      The following was the plaintiff’s affidavit of claim :
    “Personally came Wilson McCandless, who being duly sworn deposes and says, that he is the cashier of the Allegheny -National Bank, the above named plaintiff, and that James McPherson, the defendant, is justly and legally indebted to the said plaintiff in the sum of $165, with interest from the 19th day of August 1878, and $1.50 protest fees; which indebtedness arises from a certain promissory note duly made and delivered by Samuel Sarver, in the words and figures following :
    ‘$165. Pittsburgh, April 16, 1878.
    Four months after date I promise to pay to the order of James McPherson, one hundred sixty-five dollars, at Allegheny Nat. Bk. Without defalcation. Value received. Samuel Sarver.
    James McPherson,
    Samuel Neely.’
    “And said note was duly endorsed by defendant, and came for value in the usual course of business into plaintiff’s possession, and plaintiff is the holder thereof. And the said note was not paid at maturity, although presented for payment at the place therein appointed. Whereupon the same was protested, of all’of which defendant had due notice. And the whole amount of said note is still due and unpaid.”
    The defendant filed the following affidavit of defence :
    “ That he has a legal defence to said note, to wit: Said affiant had no notice of protest, nor notice of any kind whatever until the present notice from the sheriff; so that said affiant had no notice of protest from the bank or anybody else, although said note purports to be due the 18th day of August 1878, and was of the opinion that the note was paid by Samuel Sarver, the party who signed the note and the one to pay the note.- For this reason, having no notice of protest from any person, said affiant verily believes he is not indebted to the plaintiff on the said note, and which affiant is 'prepared to show when the trial comes on in this case. The notice served by the sheriff was on Monday the 2d day of December 1878.”
    And subsequently defendant filed the following supplemental affidavit of defence :
    “ That he is informed and believes and expects to be able to prove on the trial of the case, that he has a just and legal defence to the whole of plaintiff’s claim, in this, to wit: that no presentment was made to the maker of said note, by any person whatever, that -no personal demand was made upon the maker by any person whatever ; that plaintiff as holder of said note did not use due diligence to ascertain the residence of the maker and endorser, and to give such information to the notary; that due notice of non-payment was not given to affiant or the maker ; that affiant did not receive any notice whatever, either verbal or in writing, actual or constructive, until writ or summons received from sheriff of suit pending on said note, and that was the first and only notice received by afliant in regard to said note, as affiant believed that the said note had been long since paid; that the writ in the above case was served on affiant on the 2d day of December 1878, one hundred and five days after said note is purported to be due; that the said note was dated Pittsburgh, while the maker and affiant lived in Sewickley township, Allegheny county, some seventeen miles from said city of Pittsburgh; affiant calls upon the plaintiff to produce original ■note, and prove the same, and also to prove protest of said note together with the actual notice to said maker or endorser thereon, and the presentment and personal demand upon the parties on said note.”
    A rule was taken for judgment for want of a sufficient affidavit of defence, which the court made absolute, when the defendant took this writ and alleged that the court erred in their action. .

      Whitesell & Son and Barton Son, for plaintiff in error.—
    It is the duty of the holder to use due diligence to ascertain the residence of the maker and endorser, and to give such information to the notary,- otherwise the endorser is discharged: Smith v. Frazier, 3 P. F. Smith 226. The supplemental affidavit of defence set forth these words, and the court below committed, an error in making rule for judgment absolute, and entering judgment in the face of this decision, and the cases therein cited.. The dating of a note at a particular place does not make it payable there, so as to excuse a presentment at maker’s place of residence: Lightner v. Will, 2 W. & S. 140. The note is dated at Pittsburgh, but said note does not say payable at the Allegheny National Bank of Pittsburgh, but simply “the Allegheny Nat. Bk.” If due notice of non-payment be not given, the endorser is discharged : Bank of North America v. McKnight, 2 Dall. 158. An endorser is fixed by due notice of non-payment, a protest is not requisite : Stephenson v. Dickson, 12 Harris 148. What is due notice is, in Pennsylvania, a matter of fact to be decided by the jury. The affidavit of claim does not set forth that defendant had notice of non-payment of said note, while the defendant denies that notice of non-payment was given.

      George Shiras, Jr., and C. C. Dickey, for defendant in error.—
    In an action on á note, payable at a particular place, it is not necessary to aver a presentment at that place ; it will be presumed : Rahm v. Philadelphia Bank, 1 Rawle 335; Sherer v. Easton Bank, 9 Casey 134 ; Hallowell v. Curry, 5 Wright 322; Fitler v. Beckley, 2 W. & S. 458: The defendant does not deny that the notice was sent to him. It is not sufficient for him to say that he has not received notice; he must go further and state such facts as will justify the inference that no notice was given or due dilgence used: McConeghy v. Kirk, 18 P. F. Smith 201. If the defendant resides out of the place where the note was protested, notice sent by mail to the nearest post-office to defendant’s residence would be sufficient, whether he received it or not: Woods v. Neeld, 8 Wright 86. That this was done is not denied by either of the affidavits of defence. It appears that the defendant resided outside of the limits, of the city of Pittsburgh, and in absence of a denial that notice was so mailed to him, such mailing will be presumed : McConeghy v. Kirk, supra. The defendant is bound affirmatively to make out a case of negligence. He must swear to facts sufficient to constitute it, and to show that he did not receive notice actual or constructive: Moore v. Somerset, 6 W. & S. 262.
   Mr. Justice Green

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

This was an action by the holder against the endorser of a negotiable promissory note. The plaintiff filed an affidavit of claim with a copy of the note, and alleged therein that the note was endorsed by the defendant and came to the plaintiff’s possession in the usual course of business ; that the note was not paid at maturity though presented at the place of payment thereon appointed, and concluded “ whereupon the same was protested, of all of which the defendant had due notice.” Although the averments of title, of presentment for payment, of non-payment and of notice thereof to the endorser, are somewhat meagre in this affidavit of claim, we think they are sufficient to put the defendant to an affidavit of defence in order to prevent judgment. An affidavit of defence was filed which was manifestly insufficient, but subsequently and before judgment, a supplemental affidavit was filed, and upon this the court below entered judgment against the defendant, for insufficiency we presume, as no opinion was filed. Amongst other things the supplemental affidavit contains the following averment: “ that due notice of non-payment was not given to affiant or the maker; that affiant did not receive any notice whatever, either verbal or in writing, actual or constructive, until writ or summons received from sheriff of suit pending on said note, and that was the first and only notice received by affiant in regard to said note.” This is a positive averment that due notice of non-payment was not given to the endorser, and also that he never received any notice of any kind until suit was brought. Now the affidavit of claim makes no particular and precise averment of notice of non-payment to the endorser. It does not state when or in what manner it was given, nor does it give any particulars of the protest. Its averment of notice is in the most general language, thus, ‘‘of all of which defendant had due notice.” Such an averment as this, if denied in the terms of the allegation, is sufficiently denied for the purposes of an affidavit of defence. The plaintiff, in his affidavit, says “ the defendant had due notice.” The defendant, in his affidavit, says “ due notice of non-payment was not given to affiant.” The substance of plaintiff’s allegation is that defendant had notice. The substance of defendant’s allegation is that no notice was given to him, and he supplements this by a more specific denial than was really required, by saying that he never received any notice whatever until suit brought. This is a full denial, in the very terms of the plaintiff’s allegation, of the vital fact of notice. It puts the plaintiff to proof of the notice before it can recover. It is difficult to see how the defendant could possibly have made any more specific denial than he did. Piad the plaintiff alleged that on a certain day named, a certain person, also named, had deposited in the proper post-office a letter addressed to the defendant, at his proper post-office, containing a written or printed notice that the note had been presented for payment at the proper place and time and was not paid, it might well have been claimed that these facts must have been negatived by a specific denial in the affidavit of defence. But without such averments it would be asking the impossible to require such denial, since the defendant could not know that such facts were averred against him. The court below could not, and we, certainly, do not, know how the fact of notice is to be made out. How then, in the face of the defendant’s denial, can any judgment be rendered against him on the present state of the record ? .

It is sufficient if an affidavit of defence sets forth facts showing a substantial prima facie defence, which can probably be established. It is not necessary for the defendant to meet by his oath every objection or argument against his case which fine critical skill may deduce : Leibersperger v. The Reading Savings Bank, 6 Casey 531. An affidavit of defence is sufficient, if it set forth in words or by necessary inference therefrom, the indispensable elements of a good defence: Selden v. Neemes, 7 Wright 421. An affidavit which puts the plaintiff upon proof of any matter dehors the instrument sued on, is sufficient to prevent judgment: Hunter v. Reilly, 12 Casey 509. We are clearly of opinion that the affidavit of defence was sufficient to put the plaintiff to proof, and that there was error in entering judgment against the defendant.

Judgment reversed, and procedendo awarded.


author: Per Curiam.

text:
    Ferson’s Appeal.

    1. When the frontage rule of valuation for the cost of a street improvement's unconstitutional.
    2. Where one signs a petition praying for the ordinance authorizing the improvement of a street, and in that ordinance is appointed one of the officers to hold an election for commissioners, and it was partly at his solicitation that the city assumed the payment of the bonds used in making the improvement, he is clearly estopped from defending against the validity of the mode of assessment on his interest in a property affected by the ordinance.
    3. Where one of two tenants in common is thus estopped the other tenant who had no share in his acts is not thereby estopped from defending against an assessment upon his interest in the property.
    4. Seely v. Pittsburgh, 1 Norris 360, and Bidwell v. Pittsburgh, 4 Id. 412, followed.
    November 3d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Appeal from the Court of Common -Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 48.
    Appeal of Oliver Ferson from the decree of the court distributing the proceeds of a sheriff’s sale.
    The return' of the sheriff showed that the property was sold' on a judgment entered on a mortgage given by Oliver Ferson and John W. Johnston, on said property to Mary A. Corbis for the balance of the purchase-money; that it was sold to H. W. Fulton, for whose use the judgment was marked, for the sum of $6030, the mortgage being the first lien against the interests of both owners. The sheriff took from Fulton, the purchaser and owner of the judgment, his receipt for the amount of it, to wit, the sum of $3725.33, and received in cash $2304.97, which sum was in his hands for distribution.
    Exceptions were filed by John Burk and Oliver Ferson. Those filed by John Burk were to the distribution by the sheriff of a part of the fund; to the claims filed by the city of Pittsburgh against the defendants, and those by Ferson were, first, to the distribution to said city claims, and second, to judgment of Nancy Johnston against John W. Johnston, and assigned to John Burk et al.
    An auditor, Lewis McMullen, Esq., was appointed to distribute the fund, who reported as follows :
    “ The property described in the writ, and sold by the sheriff, from which the funds in his hands for distribution were realized, is what is denominated rural property, and situate in a rural district, on the northwest corner of two public and general thoroughfares, namely, Penn and Hiland avenues.- It was purchased by John W. Johnston, now deceased, and Oliver Ferson, in the early part of 1872, as tenants in common, each taking an undivided one-half interest therein. They paid a part of the purchase-money down, and took the deed in their joint names, giving their mortgage for the balance of the purchase money. On this mortgage the premises were sold.
    “ The fund, therefore, should be- distributed after the payment of the Corbis mortgage and the taxes, as follows: one-half to the lien-creditors of Nancy Johnston, and the other half to the lien-creditors of Oliver Ferson. * * *' The only remaining question, then, to be considered, is the right of the city of Pittsburgh to payment of the municipal liens filfed for the improvement of Penn and Hiland avenues, against the property of Ferson and Johnston sold by the sheriff in these proceedings out of this fund. The claim for the improvement of Penn avenue, as filed with the sheriff (per paper attached to the record of special return), is for the sum of $298,35, and is for the 3d, 4th, 5th and 6th instalments of the whole assessment. As before stated, Penn avenue is a general thoroughfare, running through a rural district. This property is rural property, situate on said avenue, and is .within a very few yards of the property of C. B. Seely, from which the city of Pittsburgh attempted to collect a portion of its lien filed against it for the improvement of Penn avenue, in which case the Supreme Court held that the foot frontage mode of assessment on that portion of said avenue was illegal and invalid: Seely v. Pittsburgh, 1 Norris 360. The assessment in this case is made under the same rule as that in the Seely case. There is no evidence offered to show any word or act on the part of either Johnston or Ferson that indicates any effort on their part to procure the street improvement, or that they'had consented that the samé should be done. This case is therefore clearly within the principle ruled in Seely v. Pittsburgh, and the city is not on this claim entitled to recover.

      “ On the 31st day of March 1873, a petition was presented to the councils of the city of Pittsburgh, signed by numerous property-owners along. Hiland avenue, among whom was Oliver Ferson, praying for the passage of an ordinance by said councils, granting them the privilege of grading, paving and curbing Hiland avenue, from Penn avenue to the Pittsburgh Waterworks property, under the provisions of the Penn avenue act. On April 14th 1873, said councils passed an ordinance for that purpose, and appointed Oliver Ferson one of the officers to hold an election for commissioners. John W. Johnston did not sign this petition, nor is there any evidence that he took any part in the matter whatsoever. Under this ordinance Hiland avenue was improved, and the cost assessed on the property abutting on it, under the foot frontage rule of valuation. Hiland avenue is a general thoroughfare, between one and two miles in length, running through a rural district, and connects with Stanton avenue, which in turn connects -with Butler street. Butler street runs through that part of the city lying along the Allegheny river, from Penn avenue to the Sharpsburgh bridge. Thus Hiland avenue, by way of Stanton avenue, is a general thoroughfare, connecting that part of the city through which Butler street runs with the east end of the city.- The property described in the writ in this case, and sold by the sheriff, as before stated, is situate on the corner of Penn avenue and Hiland, fronting forty-seven and one-half feet on Penn, and extending back along Hiland avenue one hundred and forty-five feet. In the immediate vicinity there is a great deal of farm land. The property abutting on the avenue is used principally for residences. That portion ,of the avenue in or next East- Liberty is more compactly built up than other portions are, many of the residences on these other portions being built on large lots. Again, on other parts of the avenue, there is a great deal of unoccupied land and land planted in orchards, and used generally for farming and gardening purposes. So that, although it is all rural land, yet it is not all of like kind and character, and cannot be said to be all benefited over and above the public advantage conferred by the improvement, therefore, not within the principle decided in the Appeal of the Diamond National Bank of Pittsburgh, reported in the Pittsburgh Legal Journal of November 12th 1879, but ruled by Seely v. Pittsburgh, supra. The lien filed by the city for the improvement of Hiland avenue at No. 74, October Term 1876, is on the whole property, and the claim made in this distribution is for the sum of $1285.48, being the first, second and third instalments on said lien. John W. Johnston, not having signed the petition .praying for the ordinance to make the improvement, nor in any manner whatsoever influenced the city in the matter, he is not estopped from defending against the assessment on his property, or rather interest in the property, as being illegal and invalid, nor are those who take title under him.’ This case, then, as far as Johnston’s interest is concerned, being ruled by Seely v. Pittsburgh, supra, the city is not entitled to recover therefrom the assessment against it for the improvement of the avenue. The title to his interest, by virtue of the Orphans’ Court sale, having vested in Nancy Johnston, on September 28th 1878, and judgments having been entered of record against her between that date and the date of the sale by the sheriff, the one-half of this fund, after payment of joint liens, should he distributed to her lien-creditors. But it is different in regard 'to the interest of Oliver Eerson. He signed the petition praying for the ordinance authorizing the improvement, and in that ordinance was appointed one of the officers to hold an election for commissioners. It was partially upon his solicitation that the city assumed the payment of the bonds used in making the improvement. Under the principle ruled in the case of Bidwell v. City of Pittsburgh, 4 Norris 412, Ferson is clearly estopped from defending against the validity of the mode of assessment on his interest in the property provided in the act. But Eerson could only pledge his own interest in the property for the cost of the improvement, not Johnston’s. Certainly the city did not file its lien against Johnston’s interest, because Ferson signed the petition praying for the passage of the ordinance authorizing the improvement, any more than it filed liens on other property abutting on the avenue, owned by persons who did not sign the petition. The liens filed against the property of persons by the city who did not sign the said petition, or in any way solicit the improvement, were filed under the power given the city in the act under the provisions of which the improvement was made, to enter the cost thereof- as a lien against the property abutting on the said avenue of the minority of owners who did not sign the petition asking for the improvement, as well as against that of the majority who did, according to the mode prescribed in the act for making the assessment.
    “ True, there had been no partition made of this property between Johnston or his heirs or assigns and Ferson. Yet their interests were fixed and certain, and, as far as selling, mortgaging, or in any way encumbering, was under their separate control. Why, then, should Ferson’s interest in the property be liable for the assessment on Johnston’s interest? The same rule that would make Ferson’s interest liable for the assessment on Johnston’s interest would make it liable for the assessment on any other piece of property abutting on the avenue, the owner of which did not sign the petition for the improvement. The lien was filed against the whole property, and the sum claimed out of this fund for the first, second and third intalments of said lien is $1235.48. Then Ferson and Johnston, having equal interests, should share equally the amount of the lien. The fact that the lien is void as against Johnston’s interest does not increase the portion Ferson’s interest should pay, to wit, the one-half, or the sum of $617.74. Following, then, the foregoing conclusions, the first exception filed by both John Burk and Oliver Ferson, in so far as the appropriation of the sum of $617.74 to the municipal lien at No. 74, October.Term 1876, for the grading, paving and curbing of Hiland avenue out of the share of this fund (after the payment of the Corbis mortgage and the costs and taxes) belonging to Oliver Ferson is overruled. Otherwise the said exception is sustained.”
    Oliver Ferson excepted to this report on these grounds: 1. The auditor erred in finding that Oliver Ferson is estopped from defending against the claims of the city of Pittsburgh for the improvement of Hiland avenue. 2. The auditor should have appropriated to the mortgage Of Oliver Ferson to Oliver Ferson, executor, one-half the balance in hands of the sheriff, after deducting amounts appropriated to Fulton mortgage, costs, taxes and expenses of auditing, it appearing by the record that no lien was ever filed against Ferson.
    The court overruled these exceptions whence this appeal.

      J. McF. Carpenter, for appellant.
    The gross injustice of compelling a long narrow strip of land, less than fifty feet in width or depth, to pay the full rate of assessment on a lot one hundred and twenty feet in depth, is apparent. It seems equally clear that an owner of land petitioning for the improvement of a street on the faith of the constitutionality of a law which provides that all property-owners on the street shall bear the expense of such improvement, should have some relief when the Supreme Court has declared' the law unconstitutional. ' If the distribution ordered by the auditor be sustained, Ferson pays his own debt, and then must help pay the debt of his neighbor. It is not pretended that Ferson derives any benefit from the improvement over and above the benefits accruing to his neighbors and the city in general, and yet an undivided interest in a long strip of ground, forty-seven and one-half feet in width, must pay the assessment which would be made against a lot almost three times its width.

      Thomas S. Bigelow, contra.
    This is a proceeding in rem against the property and the lien is against the property not against Johnston or FersOn. Ferson signed the petition for the improvement and acted as an officer at election of commissioners and is therefore estopped from defending against the city’s claim.
   The judgment of the Supreme Court was entered November 18th 1880,

Per Curiam.

We affirm this decree upon the facts and opinion of the learned auditor in- the court below.

Decree affirmed and appeal dismissed at the cost of the appellant.


text:
    The Pittsburgh, Cincinnati and St. Louis Railway Company versus Fierst.
    1. A railroad property and franchises were bought at judicial sale by H. and others, who subsequently, under the provisions of the Act of April 8th 1861, organized a railway company: Held, that the company was not liable for the operation of the road, during the time intervening between the purchase and the organization of the company, unless the possession of the company. was affirmatively shown.
    2. The presumption was that H. and not the company was in possession of the road between the date of the sale and the time of filing the certificate of organization.
    November 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Stbrrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term 1880, No. 238.

      Case by William Fierst against the Pittsburgh, Cincinnati &' St. Louis Railway Company to recover damages for injuries alleged to have been caused by defendant company.
    In December 1867 Fierst was in the employ of the National Coal & Coke Company as a brakesman on their coal cars. His duty called him to serve on the train running between his employer’s works, a few miles west of Pittsburgh on the line of the Pittsburgh & Steubenville Railroad and Pittsburgh. On December 21st, while engaged in his regular duties, he was injured in a collision between the train he was on and one of the freight trains of the Western Transportation Company, which was then operating the said railroad as lessees. There was no question made on the trial as to negligence, the simple question being as to whether or not the defendant company was liable in any event.
    Section 1 of the Act of April 8th 1861, Purd. Dig. 290, pi. 49, provides: “Whenever any railroad, canal, turnpike, bridge or plank-road corporation, created by or under any law of this state shall be sold and conveyed under and by virtue of any process or decree of any court of this state, the person or persons for or on whose account such railroad, canal, turnpike or plank-road may be purchased, shall be and they are hereby constituted a body politic and corporate, and shall be vested with all the right, title, interests, property, possession, claim and demand in law or equity, of, in and to such railroad, canal, turnpike, bridge or plank-road, with its appurtenances, and with all the rights, powers, immunities, privileges and franchises of the corporation as whose the same may have been sold.” The act further directs that the persons for whom the same was purchased shall, within thirty days thereafter, “ meet and organize said new corporation,” first giving two weeks’ public notice of said meeting.
    At the trial before Bailey, A. L. J., it appeared that the defendant' company was formed by the consolidation of three companies, of which the Pan Handle Company was one, and that the articles of association contained the recital “ the said railroad companies, parties hereto, owning and operating these several roads.” It appeared that said railroad was sold at judicial sale on November 6th 1867'to W. J. Howard and others, who received a deed therefor December 7th 1867, and that the purchasers, as required by the above Act of 1861, met to organize on December 28th 1867, and filed a certificate of incorporation as the Pan Handle Railway Company on January 15th 1868. The plaintiff testified that the Pan Handle Company furnished the locomotives to draw the coal cars on which he was injured, and one Brown, the conductor of the train, testified that he was in the employ of what was called the Pan Handle Railway Company. The defendants gave evidence to show that the Western Transportation Company, under its charter, had leased and was operating the railroad at the date of the sale to Howard, and one Card, superintendent of said Western Transportation Company, testified that the latter company was in possession of the railroad until the formation of the defendant company.
    The verdict was for plaintiff for $3250, and after judgment defendant took this writ, and made the following assignments of error:
    1. The court below erred in declining to affirm the point submitted by the defendant below, |yhich was as follows, viz.: That under all the evidence in this ease the plaintiff is not entitled to recover.
    2. The court erred in that portion of its charge which is in the words following viz.: “ I instruct you for the purposes of this case, that after the sale of the franchises of the road to McElrath, and afterwards to W. J. Howard, under which the Pan Handle Railway was organized, the presumption is the Pan Handle Railway Company was in possession of the road and its operation at the time of this accident.”
    3. The court erred in submitting, as a question of fact to the jury, whether the Pan Handle Railway Company was in possession of the road at the time of olaintiff’s injury, when there was no evidence of such possession.

      Hampton & Dalzell, for plaintiff in error.
    From the uncontradicted testimony on the part of both plaintiff and defendants, the Pan Handle Railway Company did not, in fact, injure the plaintiff. It further appears, by uncontradicted testimony, that the Western Transportation Company was operating the road under lease from the Pittsburgh & Steubenville Railroad, and that its possession was never interfered with until the defendant company’s organization, some six months after the accident. How, then, could the Pan Handle Railway Company, which appears to have been simply a paper company, be liable to plaintiff ? The effect of the charge of the court seems to be that from the judicial sale a presumption arose that the purchaser went into possession of the property bought, but there is no presumption that the occupant went out. If the case for the plaintiff is to stand it must be upon the theory of his counsel, that the existence of the Pan Handle Railway Company relates back, by operation of law, to the acquisition of title by W. J. Howard. But concede that i.t does, does that make the company liable for a negligent act to which it was no party, happening between the time when it acquired title and the time when it was in a position to take poosession ? Does it make it liable apart from the question of possession ? There can be no doubt that the Western Transportation Company was the party operating the road when plaintiff was injured. This company was lawfully in possession as lessee. It was not, in law, the agent of the purchaser, and according to the evidence it was not his agent in fact. There was no privity between them whereby one became liable for the torts of the other. This case does not resemble Wellsborough & Tioga Plank-road Company v. Griffin, 7 P. F. Smith 417. The points of difference are vital.
    W. W. Thompson and Slagle & Wiley, for defendants in error.
    —It is apparent, from the reading of the Act of 1861, that the new corporation does not take its being from the time of organization, but is in existence from the date of the sale, the powers residing in and being exercised by the purchaser in the meantime. This is a necessity of the case. There can be no suspension of such powers. Like a fee, they cannot be in abeyance and must always exist somewhere, and therefore the act provides that “ the person or persons for on whose account such railroad may be purchased, shall be and they are hereby constituted a body, politic and corporate.” Accordingly it was held by this court, in the Wellsburg & Tioga Plank-road Company v. Griffin, supra, that after a sale under a similar law, “there remained no further duty for the company to perform,” and that the purchaser alone Was responsible for any injury occurring after such sale. See also, Commonwealth v. Central Passenger Railway Company, 2 P. F. Smith 506. It follow's then that the purchasers would have the power to at once take possession of the property and exercise the rights and powers of the corporation subject to its duties, and that all profits and liabilities would belong to the corporation subsequently organized in accordance with the provisions of the law; and this pow'er being in pursuance of a public grant, it would become a duty upon the parties to exercise it. The existence and operation of the road by the Western Transportation Company would not affect this power and duty. But aside from this as the road was owned by the defendants, who had possession of all the books and papers relating to it, and who could have shown affirmatively and positively who was at the time operating the road, their failure to produce .it raised a presumption that, if offered, it would be against them: Frick v. Barbour, 14 P. F. Smith 121; Brown v. Shock, 27 Id. 478 ; Bryant v. Stilwell, 12 Harris 317.
   Mr. Justice Green

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

This was an action to recover damages for a personal injury sustained by the plaintiff, whilst engaged as a brakeman in the employ of the National Coal and Coke Company, on their coal cars. In the course of his employment he was required to serve on the train running between the works of the National Coal and Coke Company, situate a few miles west of Pittsburgh, on the line of the Pittsburgh and Steubenville Railroad and Pittsburgh. No question was made on the trial as to the negligence which resulted in the injury of the plaintiff, the only question being whether the corporation defendant, in the present action, was liable to pay the damages in any event. At the time of the plaintiff’s injury the defendant had no actual existence as a corporation. It was created under the general railroad law of this Commonwealth by articles of consolidation and merger, in pursuance of the provisions of the Act of 24th March 1865, Pamph. L. 49. The several corporations which participated in the consolidation were the Steubenville and Indiana Railroad Company, a corporation of Ohio; the Holliday’s Cove Railroad Company, a corporation of West Yirginia; and the Pan Handle Railway Company, a corporation of Pennsylvania. The certificate of organization of the Pittsburgh, Cincinnati and St. Louis Railway Company was dated March 17th 1868, and was filed in the office of the secretary of the Commonwealth on May 29th 1868. By the third section of the act above referred to, it is provided that upon the making and perfecting the agreement and act of consolidation, and filing the same, or a copy, with the secretary of the Commonwealth, the several corporations, parties thereto, shall be deemed and taken to be one corporation, by the name provided in the said agreement, possessing within this Commonwealth all the rights, privileges and franchises, and subject to all the restrictions, disabilities and duties of each of such corporations so consolidated.

The 29th of May 1868 therefore would be the date at which the defendant became duly organized as a corporate body. By a proviso to the fourth section of the act it is declared that “ all debts, liabilities and duties of either of said companies, shall thenceforth attach to said new corporation, and be enforced against it, to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.” In the present action it is averred that the liability to pay the damages occasioned by the injury to the plaintiff was a liability of the Pan Handle Railway Company, and therefore under the above quoted proviso to the fourth section of the act, it became, the liability of the present defendant, and this is the sole question in this case. It becomes necessary to consider whether the Pan Handle Railway Company was liable for the injury of the plaintiff. That company was organized in the following manner: On November 6th 1867 the Pittsburgh and Steubenville railroad was sold at judicial sale under a decree of foreclosure made by this court. The purchaser at said sale was W. J. Howard, to whom a deed was made on December 7th 1867. On December -28th 1867 W. J. Howard and those for whom he purchased the Pittsburgh and Steubenville railroad, held a meeting to organize the Pan Handle Railway Company. On January 14th 1868 articles of association were signed, and on the next day, January 15th 1868, they were filed in the office of the secretary of the Commonwealth. By the second section of the Act of April 8th 1861, under which this organization was had, it is provided that a certified copy of the certificate of organization filed as aforesaid “ shall be evidence of the corporate existence of said new corporation.” It is plain, therefore, that the Pan Handle Railway Company was a lawfully constituted corporation, vested with all the corporate rights and franchises of the Pittsburgh and Steubenville Railroad Company from and after the 15th day of January 1868. Under the Act of April 8th 1861, it was held, in Wellsborough and Tioga Plankroad Co. v. Griffin, 7 P. F. Smith 417, and in Commonwealth v. Central Passenger Railway, 2 Id. 506, that the corporate franchises of a corporation sold in accordance with the provisions of that act passed to, and became vested in, the purchaser from the time of sale. The purchaser, being authorized to organize a new company, and proceeding to perform that duty according to the requirements of the act, brings into existence a new corporate body which succeeds to the corporate rights and franchises formerly owned by the company whose property has been sold, and held after the sale by the purchaser.

In the case of Wellsborough and Tioga Plankroad Co. v. Griffin, supra, it was held that the old company was not liable for an injury occurring after the sale, but that the purchaser would have been so liable if in point of fact he maintained and conducted the road. In the present case it was proved on the trial, and not contradicted, that the Pittsburgh and Steubenville Railroad was leased to the Western Transportation Company, by a contract dated December 30th 1857, for the term of twenty years, which was supplemented by a new and additional agreement, dated June 3d 1858. The Western Transportation Company was incorporated by the Act of March 15th 1856, Pamph. L. 1857, p. 76, “with power to lease, finish, equip and operate the Steubenville railroad, for such term of years and upon such conditions as may be agreed upon with said railroad company.” The lease to the Western Transportation Company included a contract by that company to finish the road and operate it. It was proved by the testimony of W. W. Card, a witness for the defence, and contradicted by no one, that he was superintendent of the Pittsburgh, Columbus and Cincinnati Railroad Company, which was composed of the Western Transportation Company and the old Steubenville and Indiana Railroad Company, and that the Western Transportation Company was in possession of the Pittsburgh and Steubenville portion of the line continuously during the period of his service. His service commenced in 1864 and continued until about October or November 1871. Against this positive proof there was not a particle of testimony. Now the plaintiff received his injury on December 21st 1867. At that time the road was in the actual possession of the Western Transportation Company. The plaintiff’s right of action accrued on the day he was injured. On that day there was no such corporation in existence as the Pittsburgh, Cincinnati and St. Louis Railway Company. No action of any kind oould have been brought against that company at that time, and we cannot understand how any legal presumption could arise that the road was in the possession of that company at that time. We can understand how a presumption would arise that the road was then in the possession of W. J. Howard, because he was the purshaser at the judicial sale of the road on November 6th 1867. Rut even that presumption would be clearly rebutted by the positive and uncontradioted proof that in point of fact the road was then in possession of the Western Transportation Company. In this state of the testimony we think the learned judge of the court below was in error in refusing to affirm the defendant’s point .that under all the evidence in the case the verdict must be for the defendant; and also in saying that there was a presumption that the road was in the possession of the Pan Handle Company at the time of the accident. We are also of the opinion that the court was in error in submitting as a question of fact whether the Pan Handle Company -was in possession at the time of the injury, when there was no evidence to that effect.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Peebles & Cahoon versus Meeds, administrator.
    1. P. & O. gave to G. their due bill in these words ‘‘ Due George K. Gamble two thousand dollars, payable in boarding at the St. Charles Hotel, Pittsburgh, to an extent not exceeding one hundred and fifty dollars per month, to be provided to George K. Gamble, or to any person he may direct, at regular rates.” M. obtained a judgment against G. and issued an attachment-execution against P. & C., who pleaded nulla bona. On the trial of the attachment the jury found that P. & C. were indebted to G. in the sum named and upon the terms in the above due bill, “ given for a good and sufficient consideration,” and judgment was entered on the verdict: Held, that the claim was not attachable.
    2. Per Gordon, J. — It is not a debt due at the present or which will become due in the future, so that no judgment can be had_ against the garnishees in this form ; neither is it of such a character that it can be taken in execution. It is but an agreement to do something when called upon, that is, furnish boarding to a certain amount. Were there a breach of this contract the case would be different, for in that case judgment could be had for an amount that could be readily liquidated.
    November 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 285.
    Attachment sur judgment of J. B. D. Meeds, administrator of Peter A. Madeira, deceased, against George Gamble, and served upon Peebles & Cahoon, as garnishees.
    Prior to August 19th 1879, George K. Gamble was the proprietor of the St. Charles Hotel,-Pittsburgh, owning the furniture and having a lease of the building. On that day he sold his lease and furniture to Peebles & Cahoon, receiving therefor $4000 in cash and $4000 in notes, and an agreement to furnish board to said Gamble, or such person as he might direct, to the amount of $2000. On the 17th day of October 1879, an execution attachment was served, and the case having been put at issue on a plea of nulla Iona, it was tried September' 30th 1880. On the trial it appeared that all the notes had been assigned before service of the writ, and that Gamble and wife had boarded at the St. Charles, under the agreement, the value of the same, at regular rates, being $152.30. A special verdict was returned, as follows :
    “ And now, October 1st 1880, verdict for plaintiff; and we find that the defendant, George K. Gamble, is indebted to the plaintiff, on the judgment on which the execution attachment was issued, in the sum of $1578.80, principal and interest; and in the further sum of $9.75, costs in same case. And .w-e further find, that at the date of the service of said attachment on the garnishees, they were indebted to the said George K. Gamble in the sum of $1847.70, and attached in the case and payable in boarding at the St. Charles Hotel, Pittsburgh, at regular rates, under the terms of a due bill, or contract, given for a good and sufficient consideration, a true copy of which is as follows :
    “Due George K. Gamble, two thousand dollars, payable in boarding at the St. Charles Hotel, Pittsburgh, to an extent not exceeding one hundred and fifty dollars per month; to be provided to George K. Gamble-, or to any person he may direct, at regular rates.
    Peebles & Cahoon.
    Pittsburgh, August 19th 1879.”
    On this judgment the court entered the following judgment:
    “ And now, October 2d 1880, on motion of plaintiff, judgment is entered against the defendant, George K. Gamble, for want of an issuable plea, and against the defendants, Peebles & Cahoon, on the verdict for the sum of $1578.80, principal and interest, and ‘$9.75 costs-, of the original judgment, to be levied of the effects of the defendant, George K. Gamble, in the hands of the defendants, Peebles & Cahoon, to wit, $1847.70, payable in boarding at the St. Charles Hotel, in the city of Pittsburgh, not exceeding $150 per month, at regular rates ; and in default of delivery thereof, or otherwise' refusing to satisfy the demand therefor, on the presentation bv the sheriff of any execution issued in these proceedings, then to be levied of the proper'goods and chattels and effects of the said defendants, Peebles & Cahoon, according to law, as in the case of a judgment against them for their own proper debt; and the said Peebles & Cahoon shall be thereupon discharged, as against said defendant, George K.- Gamble, for the sum so attached and levied of the debt in their hands.”
    Peebles & Cahoon took this writ and alleged that the court erred in this entry of judgment.

      Slagle & Wiley, for plaintiffs in error.
    This case presents a novel question. “ Debt is generally used in a mercantile sense(Crabb’s Synonyms 217), and as used in the Act of 1836, must be taken strictly in that sense. Though a debt may be an obligation, payable in any manner agreed upon, in its restricted sense it must be payable in money, otherwise it is of imperfect obligation ; because, if payable in anything else, its value cannot be accurately ascertained. A person might buy property, and agree to pay the price in lands, bonds, stocks or other property, which he would not, or could not, afford to pay in cash ; as in this very case it would be very easy for the garnishees to pay $2000 in boarding, upon which they would have a large profit, when they would not be willing to pay the, same amount in money. It would, therefore, be a great wrong to compel them to pay what, under the circumstances, would be a great deal more than they agreed to pay. This would be to make a new contract for the parties. The court, for this reason, erred in their judgmeD.t, in directing that, -in default of delivering boarding, according to the contract, “ or otherwise refusing to satisfy the demand,” then execution to be levied upon the goods, chattels and effects of the garnishees.
    This part of the judgment is wrong for another reason: That the special verdict in the case does not justify it. It finds that the debt was payable in boarding at the St. Charles, to be provided to George K. Gamble, or to any person he may direct; and the judgment should have followed the verdict.
    But, aside from this, the process provided by law is not applicable to such a case. The Act of June 16th 1836, sect. 57, provides that the plaintiff may have execution against the garnishee, “ as in case of a judgment against him for his proper debt, tó be executed if the garnishee shall neglect, or refuse, upon the lawful demand-of the proper officer, to produce and deliver the goods and effects of the defendant, as aforesaid, or to pay the debt, or duty, attached, if the same shall be due and payable. ” The garnishee may discharge himself by surrender of the property, and is not, in any case, responsible beyond its value: Hampton v. Matthews, 2 Harris 106. It is apparent that this law could not, in this case, be executed. The goods and effects could not be delivered to the sheriff, and the garnishees were not bound to pay money, and,- therefore, could not discharge themselves in the mode prescribed by law. It was accord ingly held, in Christmas v. Biddle, 1 Harris 223, that a certificate of bank stock of another state could not be attached in the hands of a broker, to whom it was sent for sale, “ inasmuch as he could not produce it to be sold on fi. fa.”

      J. M. Stoner, for defendant in error.
    The property sought to be attached in this case is a note or due bill, payable in boarding, given by the garnishees to the defendant, Gamble, as part of the consideration of a sale by him to them of the St. Charles Hotel. That the transaction created a debt which comes within the letter of the attachment law, can hardly be denied. The fa«t that it is payable in specific articles cannot affect its character as a debt. And the language of the Act of Assembly in this connection, has had, from this court, a very liberal construction. Thus, in Boyle v. Franklin Fire Insurance Co., a loss incurred on a fire insurance policy was fixed by an award. On the trial, the court below charged the jury that the plaintiff was not entitled to a verdict, inasmuch as no debt appeared to be due according to the. proper construction of the Act of Assembly relating to attachments in execution. This court, reversing the court below, held that the claim was clearly the subject of attachment. In Stewart v. McMinn, 5. W. & S. 100, a voluntary assignment for the benefit of creditors had not been recorded within thirty days, but the assignees had sold part of the property and held the proceeds in their hands. The court below entered judgment on a case stated for the defendant, on the somewhat plausible ground that the assignment, though avoided as to creditors, was good against the party who made it, and therefore there could be no indebtedness of the assignees to him. This court reversed the judgment and entered judgment for the plaintiff, Sergeant, J., observing: “Although the assignment is null and void against creditors, yet it is good between the assignor and assignees: the assignor, therefore, not being able to demand the funds, they are not, it is contended, a debt due to him. If we are bound down to the rigid letter of the act this position may, perhaps, be true. But we think we must look at the spirit of the act giving the attachment, and endeavor to effectuate its design and object; and these were to enable the creditor to reach funds belonging to the debtor which could not be seized on a fieri facias, but were in the hands of a third person, such as debts and other choses.in action, goods pawned, &c.; and that for the benefit of the creditors and to give them a remedy, the funds in hand or uncollected may be considered as debts due to the assignor.” In Sweeny v. Allen, 1 Barr 380, a debt in suit had been attached, and a rule to appear and answer interrogatories was discharged by tlm court below for the reason that such a debt could not be attached. This court reversed the order, and awarded a procedendo. In Winternitz’s Appeal, 4 Wright 490, it is held that a debt due to a third person by the plaintiff in an execution, under which the goods, of his debtor, the defendant, are taken by the sheriff but not sold, is the subject of attachment process. So a claim for general average, for a loss by fire, whether adjusted or not; a claim for a culvert payable to a contractor may be attached, &c., &c. Troubat & Haly’s Practice, by Brightly, sects. 1183 and 1184.
    The precise question in this case has been decided by two .of .the courts of Philadelphia. In Collum v. Mason, 1 W. N. C. 298, the garnishee answered that, he had been'indebted to.the defendant, Mason, in the sum of $1919.42, payable to him in wagon or smith work, and that at the time the writ was served, there was remaining unpaid of the above sum $475, payable in wagon or smith work as aforesaid. On a rule for judgment against garnishee for amount admitted to be due, the court (Common Pleas No. 1) made the following order, as appears by the record : “ Rule absolute.for $475, payable in wagon and smith work, less $25 counsel fee payable as aforesaid.” In Gill v. Snyder, 2 W. N. C. 155 (Common Pleas No. 4), the garnishee admitted that he owed the defendant $128.34, payable in trade, to wit: painting work. The record shows the following order: “Rule absolute judgment against garnishee for $128,36. payable in the manner mentioned in the special order filed.” The special order provided for payment in trade.
   Mr. Justice Gordon

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

The claim attached in this case, though in form a due bill, is really an agreement by Peebles & Cahoon to furnish boarding to George K. Gamble, or to such persons as he may direct, to the amount of $2000.

Whether or not a claim such as this is attachable is the question for our solution. We think it is not. It is not a debt due at the present or which will become due in the future, so that no judgment can be had against the garnishees in this form ; neither is it of such a character that it can be taken in execution. It is but an agreement by the defendants to do something when called upon, that is, furnish boarding to a certain amount. Were there a breach of this contract the case would be different, for in that case judgment could be had for an amount which could be readily liquidated : Insurance Co. v. Field et al., 9 Wright 129. But as the matter now stands that is not possible. It is a fact that the attachment acts do not cover all cases where there is no other legal remedy, as the learned counsel for the plaintiff below thinks they ought to do. Unliquidated damages, whether arising from a tort or from a breach of contract, are not embraced by them: Insurance Co. v. Field, supra. Nor an unsettled partnership account: Knerr v. Hoffman, 15 P. F. Smith 126. By the thirty-eighth section of the Act of June 16th 1836, if the property attached be a deposit of money or a -debt due, execution shall be had in the manner allowed in case of effects in the hands of a garnishee in foreign attachment. On turning to the forty-ninth and fiftieth sections of the Foreign Attachment Act, we find two methods prescribed by which judgment against the garnishee may be enforced (1) by execution against the goods and effects found to be in his hands; (2) by like process against the garnishee, as in case of a judgment for his own proper debt, should he refuse to deliver the goods and effects of the defendant or refuse to pay the debt attached. But it is clear that the defendants come within neither of these cases; they do not now, and, if they perform their contract, never will owe the defendant a debt upon which judgment can be recovered against them, nor have they any property of any kind in their bands belonging to him which they can turn over to the sheriff, or upon which that officer can- levy. What then remains ? This claim is not stock, a deposit of money, a municipal bond, chose in action, or even liquidated damages. It is, therefore, clearly not within the reach of an attachment.

The judgment is reversed.


author: Mr. Justice Paxson

text:
    Reineman versus Blair.
    1. Pending a lease certain repairs became necessary and a written agreement was entered into between the landlord and the tenant, by which the landlord was to be permitted to enter and make the repairs necessary to render the building safe, and a stated reduction of rent was allowed to compensate the tenant for the loss from the inconvenience and damages ensuing from the repairs. In an action for the rent, Held, that evidence on the part of the defendant tending to show loss and damages arising from the unexpected length of time occupied in making the repairs was improperly admitted. The defendant could not set up the inconvenience and loss to his business resulting from the repairs to the property unless the completion thereof had been unreasonably delayed.
    2. An affidavit made by the agent of the landlord in a suit against the latter by the contractor, that the work was unreasonably delayed, was properly admitted on behalf of defendant as an admission by the landlord of a delay in making the repairs.
    November 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Stbrrett and Green, JJ:
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 4.
    Covenant by Henry C. Reineman, for use of Adam Reineman, against Kinder Blair.
    On the 21st of January 1874, Henry C. Reineman leased to Kinder Blair, a large five-story L shaped brick building, known as No. 29 and rear of 27 Fifth Avenue, Pittsburgh, for the term of five years from the 1st of April 1874, at a rent of $ 10,000 per annum, payable quarterly, under -which lease Blair went into possession, occupying the basement, first floor and some of the upper rooms of the building as a restaurant, and renting out the rest of it to vai'ious parties. When Blair entered the upper story was rented to Mr. Otto Krebs for a lithographic establishment, and it was stipulated in the lease that Krebs was not to be disturbed in bis possession during his term.
    In the spring of 1876 Adam Reineman became the owner of the leased premises, and on the 9th of July 1876, Henry C. Reineman assigned the'lease to him by endorsement. Krebs’s lease having expired, Blair renewed the contract with him, and remained in possession.
    Late in the summer of 1877 it was discovered that the heavy presses and stones used by Krebs in his bnsiness had caused the house to settle, and Blair, becoming alarmed, called in the building inspector of Pittsburgh, who, on examination, condemned the premises, and notified Reineman that he must at once repair and secure the house, and this led to the formation of an agreement between Reineman and Blair, dated October 18th .1877, whereby all payments made up to that time by the latter were accepted as in full for rent up to October 1st 1877, and his rent for the balance of his term was reduced to $7000 per annum in consideration of his permitting Reineman, with his employees, to enter on the premises and to make the needed repairs, which were to be begun immediately, but there was no time stipulated within which they were to be done or finished.
    Reineman made a contract with a firm, J. C. Schultz & Son, to repair and strengthen the house, put in iron girders, pillars, and such other appliances as were needed to insure its safety. The work was immediately begun, but in the course of its progress the damage was discovered to be more serious than had been anticipated, and it took much longer to do it than was expected, so that it was not fully finished until about February 1778.
    By a subsequent agreement between the parties Blair’s term was shortened, and he surrendered the premises on the 14th of February 1878, but having paid no rent, the present suit was brought to recover the same. The narr. filed was an ordinary declaration in covenant on the lease, to which the defendant pleaded that he was ousted of his possession by the plaintiff, and that the damages exceeded the' rent reserved.
    At the trial, before Ewing, P. J., the plaintiff put in evidence the lease, the agreement of October 18th 1877, to show the reduction of the rent, and the possession of the premises by defendant, and rested.
    The defendant then offered the agreement of October 18th 1877, and the depositions of Theodore Bruback and J. G. Skiles in regard to the damages sustained by defendant in his business by reason of the repairs to the effect that they materially interfered with his business because of the accumulation of dust in the restaurant, and thereby driving customers away, and that the injury to defendant was serious, and the repairs were unreasonably delayed. In the estimation of these witnesses the damages which were thereby sustained by the defendant amounted to from $3000 to $5000. The plaintiff objected to this testimony as incompetent and irrelevant, but the court overruled the objections. (First and second assignments of error.)
    Defendant offered to prove by the defendant (Kinder Blair) that at the time he entered into the agreement of October 18th 1877, Reineman assured him that his business should not be interfered with for more than three weeks in making the repairs referred to in the agreement..
    Plaintiff objected to this.evidence as incompetent and contradictory of the written agreement of the parties.
    The answer of the court was : “ The offer is at least competent to prove the reasonable time to make the improvements.” (Third assignment.)
    Defendant offered to prove by this witness and others, that the plaintiff at the time of the making of the contract of the 18th of October 1877, assured the defendant, that he, plaintiff, had preparations all' made for the repair of the premises occupied by defendant ; that he could have the work all done, so that the defendant could prosecute his business without interruption in three weeks from the time of making the contract; that on the faith of these representations he signed the paper, offered in evidence, and that the matter of time was the essential matter of his contract and understood at the time. This for the purpose of showing that the plaintiff violated his contract, and induced the defendant to sign the paper in evidence upon representations and inducements which were not fulfilled, and that the work of repair could have been done in a short time, and that the work was continued ov.er three weeks.
    Objected to by plaintiff because: 1. It is incompetent and irrelevant. 2. It contradicts the written agreement made between plaintiff and defendant on October 18th 1877.
    The court said: “Without proof of fraud or mistake in procuring the agreement, I am unable to see how the evidence can be admitted to vary the terms of the written contract. But it is evidence to show the necessary time to be occupied in the repairs, and the understanding that it was important that they should be done promptly, and for this purpose it is admitted.”' (Fourth assignment.)
    Defendant offered affidavit of Augustus R. Reineman, agent for Adam Reineman, made May 2d 1878, being affidavit of defence of Adam Reineman in case 78, July Term 1878; C. J. Schultz & Son v. Adam Reineman, Schultz being contractor. Sáid affidavit being in the handwriting of counsel in that case and the case on trial, and by him endorsed; in connection with the rules of the Court of Common Pleas of Allegheny county in relation to affidavits of claim and defence; the. case being at issue on said affidavit of defence, and now on trial list for the day. Offered for the purpose of showing the admission of Reineman as to the delay in making the repairs, the subject of controversy in that case.
    Objected to by plaintiff as being incompetent, not being made by the plaintiff in this case; that the affidavit is filed in a different case and by different parties, and predicated on a different contract in writing.
    Which objections were overruled. (Fifth assignment.)
    The verdict was for defendant, and plaintiff took this writ, his assignments of error being those set forth above.

      Wier & Gibson and J. Ludwig Koethen, for plaintiff in error.
    —It was error in the court below to allow the defendant to prove all the loss sustained by him by these repairs. Such testimony had a tendency to, and doubtlessly it did, confuse the minds of the jury, and cause them to lose sight of the fact that these losses and damages had been already compensated and paid for by the plaintiff. If there was any undue delay in the progress of the work, then the proof should have been confined to the damage caused by such delay, over and above what would have been a reasonable time in which it should have been finished. For the purpose of showing the time' necessary for these repairs, the plaintiff’s was not the proper evidence. The plaintiff was riot an expert, capable of judging of what would be a proper time for doing work of this kind, and his opinion as to the length of time required would be worth no more than the mere opinion of any other man. The case in which the affidavit was filed is not connected with the present case; it was one in which the present plaintiff is named on the record as defendant, but in which the present defendant has no concern whatever.

      Thomas M. Marshall, for defendant in error.
    The first assignment is to the admission of the deposition of Mr. Bruback, because the witness was permitted to give all the facts and estimate the loss to Blair from the interruption of his business. This was the only fair way of submitting the evidence, otherwise the witness would be called upon to decide when the unjust delay in effecting the repairs commenced. That was a fact for the jury on all the evidence. It was not error to admit evidence of the verbal assurance of Reineman contemporaneous with the making and execution of the agreement.
    The affidavit was used by Reineman to prevent judgment. It was as much his act as if he had qualified to it personally. It was not competent in the case in which it was filed unless it was made with his approbation and consent.
   Mr. Justice Paxson

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

We think it was error to admit the evidence referred to in the first and second specifications. Under the agreement between the parties the plaintiff below had the right to enter upon the premises leased by the defendant and make the repairs in question. The defendant not only agreed to this in writing, but he further stipulated 'to accept a certain reduction of the rent “ as full compensation to him, or to his sub-tenants for any and all inconvenience or damage arising from, or caused or to be caused, by the work aforesaid, or by the past faulty condition of the building either to him or to his sub-tenant, or any of them.” The agreement further provided that “ the work shall be done forthwith, and as speedily finished as possible.” The action below was to recover rent alleged to be due under the lease, as reduced by the agreement of 18th October 1877. It is very clear the defendant could not set up the inconvenience and loss to his business resulting from the repairs to the property unless the completion thereof had been unreasonably delayed. Yet the evidence referred to was just such evidence as would have been proper had the plaintiff entered without right and made the repairs against the will of the defendant. In other words the defendant was allowed to prove the entire extent of the interference with his business by the repairs and the entire loss sustained by him instead of confining the inquiry to the damages caused by the delay. This was calculated to mislead the jury, and even if cured to some extent by the charge of the court, yet the whole matter was so hopelessly blended together by the evidence that it would require a jury of more than average intelligence to andve at an accurate conclusion. Indeed, if it be conceded that there was needless delay and a defence to that extent, it is not too much to say that there is not sufficient evidence in the case to base an intelligent verdict upon. The testimony in regard to the delay is extremely vague and unsatisfactory. Two or three witnesses do speak .of the repairs being unnecessarily delayed. Their opinion, however, was based upon the fact that there were days when no workmen were at the building. But they were not experts, not even mechanics, and they do not venture to say whether the delay was for a week or for a month. No competent builder who had inspected the building when the repairs were going on, or after it was completed, was called to testify that the work was unreasonably delayed.

The third and fourth assignments are also sustained. The learned judge refused to admit the evidence referred to in these specifications for the purpose of varying the written contract. Thus far he was right, as there was neither allegation nor proof of fraud, accident or mistake. But he did admit it as evidence of the time necessary to complete the repairs. In this he was as clearly wrong. The evidence did not come up to the measure of such proof. It was merely the opinion of the plaintiff that the repairs could be completed within three weeks. But being a mere opinion he refused to bind himself to complete them Avithin that time. The evidence shows that the opinion was a mistaken one. The repairs were found to be more extended than was anticipated. The building was in a dangerous condition; it had swayed laterally ; it was necessary to take out the old girders and columns and replace them with new ones of iron, and to take out several floors more than was contemplated, and replace them with new ones. If it had been important to show that at, the time of the agreement the plaintiff believed the repairs could be done in three weeks the evidence would have been proper. But it was not important to do so, nor would it have been relevant. It would have thrown no light upon the question of unnecessary delay.

The affidavit referred to in the fifth specification was properly admitted. That it was not made by the plaintiff, but by his agent, may weaken the effect of it with the jury. But it was made for the plaintiff, presumably with his knowledge, and he has had the benefit of it. If it served him á good turn there I see no reason why it should not be used against him here. It was not the mere affidavit of one who could be called as a Avitness ; it Avas a defence set up by the plaintiff to a suit against him by the contractor for these very repairs.

Judgment reversed, and a venire de novo awarded.