text:
    Mine Hill and Schuylkill Haven Railroad Company versus Lippincott.
    • 1. Where a railroad company has the right of way over mining lands, and covenants with the owner thereof that upon notice it will change its location, or permit the coal underneath the way to he mined, a tenant of such owner — the terms of whose lease give him the right to mine all the coal in the land demised — may sue in the name of the landlord for breach of such covenant.
    2. The removal of the railroad to another location on the same land in such a case, was'merely contractual, and involved no exercise of the power of eminent domain, and is not within the decisions holding that the power of location when once exercised, is exhausted, and the railroad was therefore liable in damages for the breach of its covenant.
    3. The measure of damages under such circumstances was the value of the coal which was left standing, so as not to let down the surface, and a verdict for these damages in solido, may be apportioned by the jury between the landlord and the tenant.
    4. The tenant under the terms of such a lease does not part with his right to damages for the breach of covenant on the part of the railroad, because he had sold “ all of his right, title and interest” in the colliery.
    5. The fact that the landlord, after suit commenced by the tenant, released all his right under his contract with the railroad company, would not affect the right of the tenant, but would reduce that portion < f the verdict which in the apportionment by the jury was allowed to the landlord.
    March 22d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Sclmylleill county: Of January Term 1876, No. 97.
    Covenant by Joshua Lippincott, James Dundas Lippincott, executors' of James Dundas, deceased, and the Philadelphia Trust, Safe Deposit and Insurance Company, administrator cl. b. n. c. t. a., of William Richardson, deceased, for the use of William Verner, against the Mine Hill and Schuylkill Haven Railroad Company. The Ashland extension of the Mine Hill and Schuylkill Haven Railroad, which was authorized by the Act of March 18th 1852, Pamph. L. 166, was built and in operation in 1855. It crossed, near the centre, a tract of land owned by Dundas and Richardson, called the Catharine Groh tracts, which consisted of about four hundred acres, situated in Cass township, in Schuylkill county.
    On the 20th of February 1855, the following agreement was entered into by the parties thereto:
    It is agreed between the Mine Hill and Schuylkill Haven Railroad Company of' the first part, and James Dundas and William Richardson of the second part, owners of all that tract of land situated in Cass township, Schuylkill county, containing upwards of four hundred acres, warranted in the name of Catharine Groh, conveyed by sundry conveyances to the party of the second part.
    1. The party of the second part, owners of the real estate, hereby release the party of the first part of and from all claims and demands for damages now recoverable by reason of the use and occupation of the surface of the ground by the party of the first part, for the construction of their extended railroad as now built across the Broad Mountain to Ashland; and the right of way over and upon the said premises along the line thereof, not exeeeding in width two and one-half rods on each side, measuring from the centre of the graded surface of the-road. And the said party of the second part further agrees, that the said party of the first part may, at convenient water-stations, to be by them erected, use so much of the water for locomotive engines as may not be required for mining, steam-engines, or domestic purposes, by the tenants or occupants of the land of the said party of the second part.
    2. The party of the first part agree that all the coal in the land over which the said railroad passes may be mined by the tenants of the party of the second part, as though the said railroad had not been constructed thereon.
    3. That when, or so soon as the tenants of the said party of the second part are about to mine coal under, or so near to the said railroad that the mining may reasonably be expected to affect the surface of the ground, then the said party of the second part, or their agents, or the said tenants, shall give notice thereof in writing to the said party of the first part, or their agents; and the party of the first part, upon receipt of such written notice by the tenant or any other person authorized by the party of the second part, will take such measures as to the said party of the first part may seem proper to protect their road from all damages by reason of the mining by the tenants of the party of the second part, and so adjust, .secure and maintain the same that the said party of the second part may by their tenants be at liberty to mine and remove the coal to the same extent to which it could be done if the said railroad had not been built.
    4. That upon receiving such notice, all the measures necessary for the protection of the said railroad as above stated, and so that the liberty to mine said coal shall not be interfered with, shall be taken at the expense of the said party of the first part, and they shall have the right to enter the mines with the view to examine the condition thereof from time to time, not interfering with the mining thereof.
    5. That if upon such mining or removal it shall not be found reasonably convenient to protect or preserve the said railroad in its present position and location, then it shall be lawful for the party of the first part, and they shall have the right to place or relay the same upon the nearest adjacent lands of the party of the second part suitable for such purposes, not affecting thereby any improvements made at the time of such removal; and the party of the first part shall enjoy upon the route so taken, and without claim for right of way, the same rights and privileges and under the same restrictions as are herein contained with respect to the line now occupied by them.
    6. The party of the first part hereby indemnify the party of the second part, their agents and servants, from all loss or damage of any nature whatsoever which can or may happen to said railroad, or to any person or property whatsoever, using or being conveyed thereupon, by reason of any defect or imperfection in said' railroad occasioned by the mining and removing of said coal; but the same shall be wholly borne by the party of the first part.
    For the faithful performance of the covenants and agreements herein contained the said parties do bind themselves each to the other, their respective successors and assigns.
    Prior to the construction of this extension, Dundas & Richardson had leased the coal veins in this tract to John Stanton and others, who worked the same for a considerable period of time before and after the construction of the said extension, and took out large quantities of coal.
    . Their successors were Andrew McFarland and Thomas Yerner (a brother of the said William Yerner), who were in possession and working this colliery at the time of the execution of the agreement of 20th February 1855, and mining coal from under the said railroad, leaving pillars^ for its support, and also for the support of the mines.
    These tenants were sold out by the sheriff, and the lease purchased by one William Morton, who was recognised by Dundas & Richardson as their tenant. After being in possession of the colliery about nine months he surrendered his lease and premises to his landlords, who, on the 11th September 1858, by articles of agreement, made a lease to William Yerner, the party for whose use this suit was brought.
    This lease, among others, contained the following recitals:—
    “Whereas, the said parties of the first part are the owners of a tract of coal land, known as the “ Catharine Groh Tract,” of the county, of Schuylkill, and that part of the said tract and veins of coal thereon constituting the Glen Carbon Colliery had been by them leased to Andrew McFarland and Thomas Yerner, brother of the said William, whose rights and term were subsequently sold to a certain William Morton, who failed to conduct the same in accordance with the terms of their lease; the same was sold to and surrendered to them, the said parties of the first part; and it is now proposed to lease the same colliery to the said William Yerner, subject to the payment by him of the back rents and debts due from the said William Morton to them, the said parties of the first part. It is therefore covenanted and agreed that the said parties of the first part hereby lease to the party of the second part the said colliery and the right to mine coal from the south vein in which the slope now is, the Daniel and Jugular veins, north, and the three veins of coal next south of the said south vein of coal, for the full end and term of five years from and after the first day of September, instant.
    “And the said party of the first part hereby leases with the said veins of coal and colliery aforesaid, the use of all the railroads and fixtures of every description belonging to the said colliery, and the twenty-two blocks of miners’ houses and the dwelling-house and store, stabling, &c., at the said colliery belonging to them, together with all of the horses, mules, drift and other cars, wagons and tools and personal property of every description now at the mines, to have the right to use and enjoy the same for the purpose of conducting the said colliery for the full end and term aforesaid, to be kept in good order and condition by the party of the second part during the term aforesaid, natural wear and tear only excepted. And in consideration of the lease of the colliery, fixtures, railroads, houses and personal property aforesaid, the said party of the second part covenants and agrees to pay to the parties of the first part, at the end of every month during the said term, thirty-two cents per ton for every ton of coal mined and shipped from the mines, of any size above the size of chestnut coal, and for chestnut coal the sum of twelve and a-half cents per ton, scale weight, on the respective railroads, and Avhich the same may pass, but at no time shall the amount of chestnut coal exceed ten per cent, of the whole amount of coal mined and shipped. And it is further agreed between the parties that the relation of landlords and tenant shall exist between them, and that the parties of the first part shall have the right to issue their warra’nt of distress, and seize and take any property of the party of the second part found anywhere upon the said ‘ Catharine Groh tract ’ of coal land in payment of any back rent due and unpaid, including the said extra ten cents per ton, to be paid in discharge of the debts aforesaid.
    “ And it is further agreed between- the said parties that the said party of the second part shall in every year during the said term pay rent, which shall at the least be equivalent to the rent on thirty thousand tons of coal, and on as much more as he may reasonably mine by an energetic and diligent working of the said colliery. And the said party of the second part shall at all times work the said mines, timber and support the gangways, and do all other acts appertaining to the working of the same in the most approved manner, so as to facilitate the taking out of all of the coal in the different veins with the least possible waste, and to see and detect any imperfect working of the same. The parties of the first part, by their agents or mine inspectors, shall at all times have the right to go into every part of the said colliery.
    “ And it is further agreed between the said parties that the working of the said veins of coal here leased are not to be worked in such manner as to interfere with the working of any other colliery now leased by the parties of the first part to any other parties on the same tract of land; but is expressly granted, subject to the rights of all other parties as they now exist, on the same tract of land.
    “ And it is further agreed between the said parties that this term, or any interest therein, is not to be assigned or transferred by the said party of the second part, without the written consent of the parties of the first part.”
    Under this lease Verner took possession of the colliery and worked the coal veins, mining in the usual- manner. On the day of its date, he sent the following notice to the superintendent of the railroad eompany.
    “ Glen Carbon, 25th Nov. 1859.
    R. A. Wilder, Esq.:
    Dear Sir: I intend to commence to mine coal in the Back or Daniel vein .of my colliery, on Monday, 28th inst., and as the mining of the coal may interfere with your railroad, you wijl please keep a watch on it, as the road is on the crop of the vein.
    Yours respectfully,
    William Verner.”
    Mr. Wilder testifies that between 1859 and 1865, “Mr. Verner often told me he intended to remove the coal, and that we should take measures to protect the road. I always replied to him that it would be exceedingly dangerous to the road to have the coal removed while the road was used, owing to the peculiar situation of the road to the outcrop, and that if he attempted to remove it until some plan was sanctioned by the company, .1 should have all parties engaged in it arrested. The company never made any attempt to work for the purpose of changing the road, but we made a thorough examination to see if it was practicable to make a relocation at that point; we found it impracticable, and, therefore, did not make any. * * * The cost of bridges would be worth more than the coal.” In 1864, the Philadelphia and Reading Railroad Company, having become the lessees of the Mine Hill and Schuylkill Haven Railroad Company, instituted proceedings against Verner to prevent his mining so as to endanger the safety of the road, and an injunction was obtained against him, which has never been dissolved.
    On the 25th April 1870, on motion a rule was granted by the court on plaintiffs’ counsel to file their warrant of attorney in this case, before proceeding further therein.
    On 23d May 1870, warrant of attorney from William Verner only was filed.
    On 5th June 1870, the affidavit of George J. Richardson was filed, setting forth that he was one of the executors of William Richardson, deceased, who was one of the plaintiffs in this suit. That neither he, nor, as he believes, his co-executor, nor the said William Richardson, in his lifetime, ever authorized William Verner, or any person for him, to bring this suit. And on the 9th September 1870, the court discharged this rule.
    At the trial the following paper was put in evidence.
    “I have this day sold my right, title and interest in the Glen Carbon Colliery to Geo. S. Patterson & Brother for sixty thousand dollars — two thousand dollars which I have this day received; four thousand more to be paid on Monday, the 26th of September; twenty-six thousand to be paid on the 1st October 1864, and the balance in thirty days from the first of October 1864. It is agreed that if the payments are not made as above the money paid will be forfeited. Wm. Verner,
    Geo. S. Patterson & Bro.
    Philadelphia, September 21st 1864.”
    And the following receipt:
    “Philadelphia, September 21st 1874.
    Received of George S. Patterson & Brother two thousand dollars on account of my interest in the Glen Carbon Colliery, together with the following personal property and real estate: Eleven mules, three horses, two carriages, one sulky, harness, wagons for hauling lumber, frame stable, carriage-house, carpenter and smith shop, tools for the same, forty-six drift wagons, three iron dirt trucks, screws and tools for the same, two large wire-ropes, from four to five miles of T railroad iron, coal mined in mines, four houses, one fire-proof safe, lot of timber for mining purposes, three iron air stacks, the timber right of eighty acres of land adjoining the property, breaker and engine belting, and all belonging to the breaker.
    §>2000. Wm. Verner.”
    In relation to these papers, George S. Patterson testified: “ We thought we had purchased all of Mr. Verner’s personal property and interest in the colliery, but we knew that we did not purchase any lease from Verner; we thought we had acquired all Mr. Verner’s rights; I don’t remember whether those pillars were mentioned in that lease or not; we did not buy any claim that Mr. Verner had against the Mine Hill and Schuylkill Haven Railroad Company for damages; at the time we purchased it was not impossible, but it would not have paid us to take out the pillars in the Crosby vein, if we had the right; the gangway was down at some places; I think Mr. Verner and my brother Edward were-present at the time when I said to Mr. Verner that “we did not want to buy a lawsuit.”
    With the evidence produced by the defendants was an assignment of the surviving executors of Richardson and Lippineott, deceased, to the Philadelphia and Reading Coal and Iron Company of all their rights under the original agreement -with the company.

      The plaintiffs submitted the following points; to which are appended the answers of the court: "
    " 1. That under the agreement of 20th February 1855, and the demise of Dundas & Richardson to William Verner, he became entitled to compensation for any damage that he might sustain as tenant by reason of any pillars that he Avas obliged to leave unmined to support the Ashland Extension of defendants’ road, and the refusal or neglect or failure of the defendants, after written notice of the said Verner to take measures to protect their road or remove the same, so that the said Verner might mine oiit his coal as if the railroad had not been built thereon.
    Ans. “ We think this is so.”
    3. That if the jury find that written notice was given by William Verner to the Mine Hill Company, or that said company, by their acts or declarations, Avaived notice in writing that the said Verner was about to mine out the coal from under their road, and that he, the said Verner, desired the defendants to protect their road so that he could mine out his coal under the same, and the defendants refused to support or remove their road, so that such coal could be so mined, the plaintiffs are entitled to recover the value of said coal to Verner as a tenant, as Avell as themselves as landlords, as it was in the pillars at the time of such refusal, together Avith the interest thereon from the time of such refusal to the present.
    Ans. “ The landlords can only recover the rent. Verner can recover such damages for breach of covenant as are direct and proximate, and are not remote and speculative.”
    4. That the plaintiffs are entitled to recover, not only the loss to Verner, the tenant, but also the damage or loss to them in the rents, which Avould have been payable upon the coal Avhich the tenants were obliged to leave unmined to support the road of the defendants.
    Ans. “We ansAver this point as we have the third one, with this addition, that if you find anything due Verner, he would be entitled to interest on it from the time the injury was committed.”
    Among defendants’ points, with the answers of the court, were the following:
    2, That the railroad company having located the road across the Catharine Grroh tract before the execution of the agreement of 20th February 1855, the power to locate Avas exhausted and could not be exercised by the company, even with the consent of Dundas & Richardson. The agreement to change the location and track of the road, to avoid the outcrop of the coal veins, was an agreement to do what the company had no right to do. It was in violation of law, and void.
    Ans. “ After a railroad is located its power, in this respect, under a charter, is exhausted, unless the change becomes necessary for the public safety and travel. By consent of the landlords in such ease, since the passage of the Act of April 11th 1862, Purd. Dig. 122Í, pi. 45, this can be done for a short distance.”
    4. That the covenants in the agreement of 20th February 1855, between Dundas & Richardson and the Mine Hill and Schuylkill Haven Railroad Company, were personal covenants, and no action for a breach of them by the railroad company can be sustained by the lessee of Dundas & Richardson, and as Yerner has shown no other right of action than his lease, which expired in the fall of 1868, and was granted subject expressly to the rights of all other parties, as they existed at the granting thereof upon the Catharine Groh tract of land, the verdict should be for the defendants.
    Ans. “ Whether the covenants in the agreement referred to be personal or not, is immaterial, as Dundas & Richardson’s executors are on record as plaintiffs in this suit. Yerner can only recover for such interest as he can show was conveyed to him, or that he sustained.”
    5. That the plaintiffs have proved by Thomas Yerner that he was a tenant, and worked the water level gangways in the Crosby and Daniel veins, and gave written notice as such lessee of his intentions to remove the pillars of coal under the railroad in said gangways. That if such evidence is believed, the plaintiff, Vfilliam Yerner, would have no right of action for the pillars of coal in the upper level of said veins, and had no right to interfere with them, and if he has failed to show any other right to damages for any other coal, the verdict must be for the defendants.
    Ans. “We affirm this point, subject to our general charge.”
    The part of the general charge that referred to this point, is as follows:
    ■ “Nor can he (Yerner) recover damages sustained by Stanton, Thomas Yerner or Morton, under the evidence in this case.”
    7. That William Verner gave no notice under the evidence in this case, which was in compliance with the agreement of 20th February 1855, of his intention to mine coal that would interfere with defendants’ railroad, until he gave the notice in evidence of the 6th day of June 1864, and there is no evidence in this case that the defendants or any of their agents interfered with his mining thereafter, or that he was in anywise prevented from mining coal before his sale to Patterson & Bro., in September thereafter, and the verdict of the jury must be for the defendants.
    Ans. “ The facts contained in this point are questions for the jury to determine under the evidence.”
    8. That William Yerner, the use party plaintiff, having sold all his right, title and interest to the Glen Carbon Colliery, and personal property connected with the same to George S. Patterson & Bro., as per agreement of 21st September 1864 (such having been made before this suit was brought), without any reservation of the pillars of coal under the railroad, his rights, whatever they were in respect to said coal, passed to his vendees, and he cannot maintain this action.
    Ans. “ So far as the defendants are concerned, this is immaterial, so long as they have the legal plaintiff on the record.”
    9. That under the contract of February 20th 1858, there could not be a recovery for a breach of said contract, beyond the injury done thereby to Dundas & Richardson, the parties of the first, part, and their damages could not exceed the amount of rent which they would have secured from the coal if taken out by their tenants.
    Ans. “We think if Verner can recover at all, he can recover damages sustained by him independent of the rent of the landlords, if they follow a breach of the agreement, and if they are the proximate consequence of the injury, not remote or speculative. The damages of the landlords could not exceed the rent of the coal if taken out by the tenant.
    10. That upon all the evidence in the cause, the verdict should be for the defendants.
    Ans. “We .decline to instruct you as requested.”
    In the general charge the court, inter alia, said:—
    [“William Verner is the real plaintiff in interest in this action * * * this action is in the names of the legal plaintiffs for the use of Verner; he must bring his suit in this way. * * * If you find in favor of the plaintiffs, you will determine how much is due to the landlords, and how much is due to William Verner, and state the same in the nature of a special verdict.”]
    “ The notice required by the agreement must be in wilting, bu" the defendants may waive the written notice and accept of a verbal notice, but under the terms of the agreement there must be some notice, and that of a nature to inform the defendants of the plaintiffs’ intention to mine the coal in the pillars under the road-bed. [A notice to let down the road in case the defendants would not pay, such as John D. Brennen testifies to, is insufficient unless the defendants understood it as a notice under the terms of their agreement. If they did not so understand it, it would not be notice as required.]
    “ The first question, then, for the jury to determine is whether the defendants have broken any of their covenants with Dundas & Richardson. [If they have not, that ends the case, and your verdict should be for the defendants. If you find differently, then you will inquire whether the plaintiffs have given the defendants the proper notice, as required by the agreement.] If they have, then the defendants would be entitled to a reasonable time to perform their covenants, and reasonable time depends upon the work to be done. If there has been a failure or refusal on the part of the defendants to comply with their agreement, then you will determine if Mr. Verner or plaintiffs have sustained injury, and if so, how much. The measure of damages would be the coal in place at the time of the injury. This you will have to determine from the evidence in the case. If you find in favor of the plaintiffs, you will determine how much is due to the landlord and how much is due to William Verner, and state the same in the nature of á special verdict.”-
    The verdict was for plaintiffs for $52,088; “ of which $8334.33 is for rent.” A rule to set aside the verdict and enter judgment for the defendants, non obstante veredicto, was subsequently discharged. The defendants then took this writ, their assignments of error being the refusal to make absolute the rule upon plaintiffs’ counsel to file their warrant of attorney; the discharge of the rule to enter judgment non obstante veredicto, the answers to the foregoing points, and the portions of the charge embraced in brackets.

      William B. Wells, John W. Byon and Benjamin W. Bumming, for plaintiff in error.
    — The defendants, to protect themselves, had the right to demand in limine the authority of Verner to use the names of the legal plaintiffs, and the proceedings should have been stayed until such authority was shown: Mississippi C. Railroad Co. v. Southern Railroad Association, 28 Leg. Int. 309; Meyer v. Litlell, 2 Barr 177; Montgomery v. Cook, 6 Watts 238; Hamilton v. Brown, 6 Harris 87; Armstrong v. City of Lancaster, 5 Watts 68. The tenants were not parties to the agreement of 1855, and they have no right, either in their .own name, or those of Dundas & Richardson, for any breach of covenant contained therein. The right of action was vested in the landowners prior to the lease to William Verner, and the latter acquired no right of action by virtue of his lease which he accepted, subject to all the rights then existing.
    If William Verner had a right of action for pillars of coal left to support the railroad, it follows that all the tenants who preceded him and left pillars of coal for the same purpose, had also their respective rights of action against the railroad company, a result not intended by either of the parties to this agreement, and contrary to its true construction. The profits 'that might accrue to the several successive tenants from mining the pillars of coal necessary to be left in the mines for the support of the railroad, are not within the letter or spirit, of this agreement. The landlords alone were to be benefited, and the only damage resulting to them was the non-payment of the rent for the coal necessary to be left for the support of the railroad.
    Where the interest of the plaintiff was not intended to be protected or covered by the covenant he cannot recover, notwithstanding the terms of the covenant may include him. De Bolle v. Pennsylvania Ins. Co., 4 Whart. 74, 75; Maule v. Weaver, 7 Barr 329, 331, 332, 333.
    But if the covenants contained in this agreement are covenants running with, the land, then, inasmuch as the land has been conveyed by the executors to the Philadelphia and Reading Coal and Iron Company, together with this agreement and all rights of action under it, it follows in this aspect of the case, the tenants would have no right of action under said agreement.
    Then again, in section third of said agreement it is stated that the said company shall “so adjust, secure and maintain the same (railroad) that the said party of the second part may, by their tenants, be at liberty to mine and remove the coal to the same extent to which it could be done if the said railroad had not been built.” It manifestly appears, therefore, that the covenants alleged to have been broken were not made for the benefit of the tenants.
    We therefore submit that Yerner could not be' placed upon this record as the equitable party, when his interest, if any interest he had in the covenant, was a legal interest, and therefore the double recovery allowed in this action was in contravention of all recognised forms of pleading: 1 Ohitty’s Pleadings 3.
    The owner of coal lands over which a railroad passes, being a public highway, will not be permitted to work out all the coal beneath the road bed, so as to cause the ground to subside and thus endanger the lives of the employees and travellers and obstruct public transportation.
    The power of the railroad company was exhausted when they located their tract, and they had no authority to change such location to such a distance as would avoid the veins of coal in the Catharine Groh tract. The evidence shows that this railroad had been located, constructed and operated with the consent of the landowners for a period of over one year prior to the agreement of the 20th February 1855, and all the legal obligations and consequences arising from the location of the railroad had become fixed, fibre re-location of the road, therefore, would have been ultra vires, the power of location having previously been exhausted. The Commonwealth alone could confer the right to re-locate: Pierce on American Railroad Law 218; Cleveland and Pittsburgh Railroad Company v. Speer, 6 P. F. Smith 334; Morrow v. Commonwealth, 12 Wright 307; Holden v. Cole, 1 Barr 307; McMurtrie v. Stewart, 9 Harris 322; Furniss v. Furniss, 5 Casey 15. As to the landowners, no injustice can be done to them, as their original remedy for the use and occupation of the land, if they claim any damages, remains intact and unimpaired, if this contract be annulled: Western Pennsylvania Railroad Company v. Johnston, 9 P. F. Smith 290-95.
    The right of William Yerner, if any he had, grew out of covenants running with the land, and consequently passed with the title to the vendee. The transfer to Patterson was in writing, and shows that he conveyed all his right, title and interest without any reservation.

      Patterson therefore succeeded to whatever rights passed under these covenants: Spencer’s Case, 1 Smith’s Leading Cases 146; Cathcart v. Bowman, 5 Barr 317; Penna. Railroad Co. v. Sly, 15 P. F. Smith 205. The court permitted the jury to assess the damages on the market value of coal in the year 1864 at war prices. The market value was not a fair measure of damages: Fleming v. Beck, 12 Wright 309; Sedgwick on Damages 312.

      Gr. E. Earquhar, F. W. Hughes and Edward Owen Parry, for defendants in error.
    — The direct consequence of the railroad company not complying with their covenant to protect and secure the railroad from the effect that would be produced by mining, so that the owners of the land, by their tenants, might mine and remove the coal to the same extent as it could have been done if the railroad had not been built, ivas that the coal in the pillars could not be mined out, and remained in the mines for the support of the road. The damage sustained by the owners of the land, therefore, was the value of the coal that they were prevented from mining out by their tenants, and which might have been mined out by their tenants if the railroad had not been built. The jury have found by their verdict, under a direction from the court, “that the measure of damages would be the value of the coal in place at the time of the injurythat the damage sustained by the plaintiff was $52,088, of which $8334.23 is for rent. In other words, the jury found that the value of the quantity of coal that was prevented from having been mined out in consequence of the railroad company not keeping their covenant, was $43,753.77 more than the rent that the owners of the land would have been entitled to have received from the tenant under the evidence in the case, if the coal had been mined by the tenant.
    The covenant of the railroad company was in terms that Dundas & Richardson, by their tenants, might mine and remove the coal to the same extent to which it could have been done if the railroad had not been built. The contract under Dundas & Richardson by their contract with William Verner, demised to him the coal, and with the demise of the coal they gave him all the rights they possessed for the purpose of removing the coal during the term of his lease. The coal was the property of William Verner, subject to the payment of the reserved rent. If William Verner was prevented from mining out the coal by the act of a stranger, and for which compensation measured by the value of the quantity of coal was paid, the proportion of the compensation to which the lessors would be entitled would be the amount of the rent on the quantity of coal, and the residue the proportion of William Verner.
    If the name of William Verner had not been upon the record as the equitable plaintiff in this case, he would, under the evidence, have been entitled to have claimed from the legal plaintiff his proportion of the damages found by the jury, viz., the value of the coal less the rent.
    The grant of coal by Dundas & Richardson, for the valuable consideration paid by William Verner, gave him an interest in the covenant and made them trustees for his benefit to the extent of the interest he had acquired in the coal. He had, therefore, as vested an interest in the covenant as the equitable assignee of a bond has in the mortgage which secures the payment of the bond. It is submitted, therefore, he had the right to use the names of the legal plaintiffs in the suit. It is true the owner of coal land over which a railroad passes will- not be permitted to work, out all the coal beneath the road-bed so as to have the ground subside and thus imperil the safety of the public; but the question here is as to the liability of the defendants upon their agreement. Such a contract would be binding on a private "individual, and this railroad is nothing more than a private corporation, and consequently bound : Bonparte v. Camden and Amboy Railroad Co., 1 Bald. 205; Alabama Railroad Co. v. Kidd, 29 Ala. 221.
    Under the English Consolidated Railway Act of 1845, the same privilege is given to the owner to remove the coal under the bed of the road after notice and failure of the company to purchase: Godefroi & Shortt’s Law of Railway Companies 387, § 78. See also Wyrley Canal Co. v. Bradley, 7 East 368.
    Without doubt the defendants, under their charter, would not be permitted, previous to the Act of 11th April 1862, Pamph. L. 497-8, after locating their road to change it. As against the owner of the land their power was exhausted; for as the exercise of eminent domain is derogatory of private right, the authority must be strictly construed.
    But where the company own the land, or act with the consent of the owner, we see np substantial reason why this change should not be made when it is required for public safety. Hopkins v. The Great Northern Railroad Co., Godefroi & Shortt’s Law 'of Railway Companies 326.
    In order to ascertain the value of the coal in place, the market price of coal at the nearest shipping point where the coal would have been sold during the several years between 1859 and 1864 was given in evidence, and also evidence of the cost of mining, the per centage of loss or waste in mining, and the tolls on the railroad from the mine to the shipping point, from which the jury could determine the value of the coal in the mine. There was no other way in which it could be ascertained. The coal in the pillars was without value unless they could be removed. If they could be removed and the coal sold they were of great value, for the cost of mining them out and placing the coal in the market was but a small deduction from the market price of the coal.
    April 4th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— The effect of the agreement of 20th February 1855, between Dundas and Richardson, the landowners, and the Mine Hill & Schuylkill Haven Railroad Co., was to enable the former and their tenants to mine all the coal and let down the surface, just as if no railroad lay upon this surface. The railroad company was bound, on notice, to take care of its railroad, or remove it to another location on the same land. This removal ivas merely contractual, involving no exercise of the poiver of eminent domain, and is not within the decisions holding the power, when once exercised, as gone. The ability of the company to perform either alternative was a matter wholly within its own knowledge, when, for a valuable consideration, it entered into the contract. The contract yielded to the landowners the right of subjacent support of the railroad, and the right to take all the coal underneath. But the railroad being a creation of law for a public purpose, the public right required the subjacent support to remain, if the railroad company refused to perform its contract. The contract thus concerning the public as well as the company, specific performance could not be compelled, and refusal of the company converted the right of the landowners into a right of action for damages under the covenant. The damages necessarily extended to the value of the coal in place, for the whole was lost to them by the refusal of the company to protect or remove its railroad, and the necessity for the subjacent support. This loss is the same, for the whole of the coal in place, whether it arises from the necessity of leaving the pillars as a support of the railroad, or from a conversion of title by payment of the damages. The cause of action therefore arose when the company refused to perform its covenant.

As to Verner, the tenant, there is then no difficulty. He is entitled, for his own use, to that proportion of the damages, to be recovered by the owners of the land, which his lease conveyed under his right to mine — to wit;, to remove, sell, convert and retain after payment of his rent. The verdict is in solido for the entire damages, and not two verdicts — one for the lessors, and the other for the tenant. The proportions found by the jury were but for convenient distribution, a thing often done where different rights in the same subject exist. The suit was by the covenantees against the covenantors, and the recovery for the entire value of the coal in place. The right of Verner, as use plaintiff, under his lease, is also clear. His lease ivas of an old colliery, consisting of several veins, some of which were worked out, leaving only the pillars. No reservation was made as to the extent of his right to mine; but, on the contrary, his lease bound him to work the mines, “and do all other acts appertaining to the working of the same in the most approved manner, so as to facilitate the taking out of all the coal in the different veins,, with the least possible waste.” This lease must be interpreted in view of the right of the owners, under their contract of 20th February 1855, to take out all the coal and let down the surface, the condition of the old workings where pillars only were left, different veins referred to, covering old and new' workings, and the requirement to take out all the coal with the least possible waste. Yerner therefore became entitled to the tenant’s share of the pillars in the old workings, and was bound to remove them for the advantage of the lessors. • He then was entitled to give the requisite notice to the railroad company to protect or remove its road. He wms rightfully a use party, and had an interest his lessors could not revoke or transfer.

This answers also the alleged effect of the release of Richardson to the railroad company in 1872, during the pendency of this action, which was commenced in 1865, against the railroad company. The railroad company had notice of his lease, and could not take a release in the face of the Us pendens for the breach of its covenant.

It is alleged, however, that William Yerner sold his “right, title and interest in the Glen Carbon Colliery,” to George S. Patterson and Brother, on the 21st September 1864, which operated to transfer his right of action. But there is nothing in the writing purporting to convey a right of action for damages already awarded. It purports to pass his title or interest in the colliery, and the other paper of September 21st 1864, passes also the personal property in use in and about the mines. George S. Patterson, the- assignee, testifies also that he purchased only the interest of Yerner in the colliery and his personal property. He does not remember that the pillars wero mentioned, and did not purchase any claim that Yerner had against the railroad company; did not want to buy a lawsuit; and did not remember whether Yerner stated he had a claim for damages against the company for the pillars. Neither the writing nor the testimony show's a sale of Yerrier’s right of action. None therefore passed to Patterson and Brother. The right to take the pillars did not vest in them, for the same refusal of the railroad company which converted the right to take the pillars into a claim for damages under the covenant, took from Yerner the power to pass title to the pillars to his assignee. The pillars remained ex necessitate under the higher right of the state, for the support of the railroad; the right to retain them being conclusively fixed by the refusal of the railroad company to permit their removal. This refusal converted the right to mine them into a right of action under the covenant, when Yerner gave his notice in 1859, repeated in 1864, before his assignment.

The case has no analogy to a conversion of chattels by recovery of the value. The pillars are part of the realty, and ivere fixed in their condition by the exercise of the right of eminent domain by authority of the state, as a necessity for continued support beyond the power of the landlords or their tenant to remove them. It was only the contract w'hich conferred the right to mine them, and on the refusal to perform it neither Verner nor his assignee could remove them. The right of action- for the damages therefore vested immediately in the covenantees for the use of their tenant. This right of action did not pass by Verner’s assignment of the colliery, and if the pillars cannot be mined by his assignee, as we have shown, the injury is remediless, unless Verner can maintain his action in the name of his lessors, the covenantees. Hence, to say that the right to pillars passed to the Pattersons, the assignees of Verner, which could be mined by no one, is illogical and unsound; and to say that possibly at some future day the railroad track may be removed, and the pillars be mined, is to deny to Verner a right he clearly obtained under his lease, and the breach of the covenant, on a pretext, not only illusory, but- dependent on the act of the very party Avhose breach of covenant is the cause of injury to Verner. This in effect would be a denial of justice, on a theory of the merest shadow of a possibility.

But so far as the landlords, Dundas and Richardson, are beneficially interested in the verdict, it is clear that their interest is bound by the release. Hence the portion of the verdict given for rent cannot be recovered. The separation of the damages in the verdict enables us to modify instead of reversing the judgment. The sum of $8334.33 is therefore struck out of the verdict, and judgment is now entered for the residue, to wit., $43,753.53, for the use of William Verner, at which sum the judgment is now affirmed.

Sharswood and Paxson, JJ., dissent from the judgment, not from its modification.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Baldwin’s Appeal.
    The rule established in Long’s Appeal, 11 Harris 297, and Yelverton v. Burton, 2 Casey 355. that there is no priority between several writs of foreign attachment when served on the same day, applies as well to writs of attachment-execution, and where they have been so served, no preference can be given, and distribution of the fund in the hands of the garnishee must be made pro rata.

    March 25th 1878.
    Before Sharsavood, Mercur, Gordon, Paxson, Woodavard and Trunkey, JJ. Agneav, C. J., absent.
    Appeal from the Court of Common Pleas of Delaware county: Of January Term 1876, No. 111.
    Appeal of B. C. BaldAvin from the decree of the court, sustaining the exceptions to the report of the auditor appointed to distribute certain funds in the hands of a garnishee.
    On April 23d 1875, Richard L. Jones having two judgments against Samuel O. Bonsall, issued íavo Ayrits of attachment-execution upon them to attach six shares of stock in “ The Upper Darby Building and Loan Association.” These writs Avere placed in the hands of the sheriff at 8.25 and 8.30 P. M. respectively, upon the same day. On the same day Barldey C. Baldwin, having a judgment against Bonsall, also issued a writ of attachment-execution to-attach the same stock, which was placed in the hands of the sheriff, as appears from his endorsement thereon, at 5.45 p. M. of the same day. To these writs the sheriff returned that he served them all on the garnishee on the 24th of April 1875: the first two at 12.30 and the last one at 12.35 P. m. Interrogatories having been filed in each case, the garnishee answered, admitting the sum of $633.18 in its hands subject to the attachments.
    An auditor was appointed by agreement of the parties, who reported a distribution of the fund pro rata among the attachments. Exceptions were filed to his report, and the court below, after argument, sustained the exceptions and awarded the whole fund to the first two attachments, and decreed that judgment should be entered against the garnishee accordingly. From this decree and judgment Baldwin appealed.

      IT. O. Eoward, for appellant.
    — There is no priority as to payment between several writs of foreign attachment served or levied on the same day: Long.’s Appeal, 11 Harris 297. Among attaching creditors when process is served the same day there is no preference, and all must be paid pro rata: Yelverton v. Burton, 2 Casey 351. These were cases of foreign attachment, and the court below held that the rulings did not apply to attachments sur judgments. It is difficult to see why the same doctrine which applies to the service of foreign attachments should not apply to the others. The foreign attachment law is the parent of the attachment-execution, and after the service of the writ under the latter we are obliged to look to the former for all subsequent steps in the process. ■
    That this same rule should apply to attachment-executions is in analogy to the ruling in Sheetz v. Hobensack, 8 Harris 412, where it is said the same rules apply to both forms of process as to the effect of the attachment.
    An attachment upon a judgment is not an execution within the ordinary meaning of the term: Gemmill v. Butler, 4 Barr 232; Swanger v. Snyder, 14 Wright 218; Bancord v. Parker, 15 P. F. Smith 336.
    Why should attachment-executions served on the same day have priority according to the hour of their service, more than foreign attachments? To establish such a rule in foreign attachments was held to be not only contrary to principle, unjust and unreasonable, but to be attended with insurmountable difficulties, in ascertaining in many.cases the precise status of different writs as to time of service.

      Ezra Levis and Joseph J. Lewis, for defendants in error.
    — An attachment under the Act of 1836, is a process to enforce the judgment, and it is in substance, if not in form, an execution: Wray v. Tammany, 1 Harris 394; Hall v. Holmes, 4 Barr 250; Martin v. Scott, 2 Casey 103; Kase v. Kase, 10 Id. 131; Lewis v. Lewis, 11 Wright 127; Strouse v. Becker, 8 Id. 206; Franklin v. Bush, 1 Phila R. 571.
    _ The provision requiring the sheriff to endorse thereon the day of the month, the year and hour of the day, when the writ of execution comes to his hands, is general, and applies by the express words of the statute, to writs of fieri facias and to other writs of execution.
    Executions issued the same day and delivered to the sheriff at the different periods of the day, must be paid out of the proceeds, in the order as to time in which they come to his hands: Ulrick v. Dreyer, 2 Watts 303; Shafner v. Gilmore, 3 W. & S. 438.
    May 6th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

At common law a fieri facias had relation to its teste and bound the defendant’s goods from that time, so that if he sold them after-wards, they might still be taken in execution : Bob. Dig. 320. As this often worked great injustice to bona fide purchasers, the Act of Car. 2, ch. 3, provided, among other things, that a fieri facias, or other writ of execution, should bind the property or goods of the person against whom it issued, only from the time such writ should be delivered to the officer by whom it was to be executed, and he was required to endorse, upon the back thereof, the day of the month and year when he received the same: Id. 310. Our Act of June 16th 1836, is, in effect, a transcript of the above, and embraces the same intent, to wit, the limitation of the lien, of the writ of fieri facias, as it stood at common law, to the time of its receipt by the executive officer. The two statutes differ only in this, that, by the former, the day and year only, when the writ came to hand, were to be endorsed; thus leaving the lien to cover the whole of the day on which the writ' was received, whilst the latter requires the endorsement of the hour also, and, so, limits the lien to the fraction of a day. The intent of both acts is, however, the same; not to furnish data for distribution, hut to prevent injury to honest purchasers. As was said in Long’s Appeal, 11 Harris 297, the practice of paying writs of fieri facias out of the.proceeds of the defendant’s personal property, in the order in which they are' delivered to the sheriff, rests upon usage sanctioned by the act, and not on principle. It is, then, obvious that the act just recited can have no bearing upon the writ called “attachment-execution,” since it is not such an execution as does now, or ever did, hind the defendant’s goods from its teste, or even from the time it came into the sheriff’s hands, but only from the time of service upon the garnishee or levy upon the goods themselves. The execution of such a writ, from its very nature, never could work detriment to good faith purchasers, and therefore, from it they never needed protection. It follows that if we adopt the usage above mentioned, we must do so without the sanction of the act. This, however, will not do, for the statute, which creates this writ, interposes and directs us to look for rules and analogies in the laws governing foreign attachments. The process, to levy an execution upon stock, is declared to be in the nature of an attachment; and from and after the service of such writ, all stock belonging to the defendant, in the corporation upon which service shall be so made, and all debts and deposits of money, and all other effects belonging or due to the defendant, by the person or corporation upon which service shall be so made, shall remain attached in the hands of such corporation or person, in the manner heretofore practised and allowed in the case of foreign attachment.” Whilst, therefore, this process may be regarded as an execution, in that it is intended to carry into effect the final judgment of the court, and not merely to compel appearance, yet it is wanting in some of the important features of such a writ, and in this notably, that it is not in itself final, but requires execution for its enforcement. We think, therefore, that this process is nearest of kin to the foreign attachment, and that the rules governing that writ must also govern this one.

Having arrived at this conclusion, we do not hesitate to adopt the rule settled by Long’s Appeal, 11 Harris 297, and Yelverton v. Burton, 2 Casey 355, that is to say, the several writs’of attachment having gone into the sheriff’s hands, and having also been served, on the same day, no preference can be given to either, but distribution must be made to them pro rata.

The decree of the court below is reversed; the report of the auditor is reinstated, and distribution ordered accordingly. It is further ordered, that the costs be paid by the appellee.


author: Mr. Justice Woodward

text:
    Mathias versus Sellers et al.

    1. The rule that a tradesman has a lien for work done on goods deposited with him for manufacture, is not waived by a special agreement merely for the payment of a fixed sum for the labor done on the goods.
    2. Replevin cannot be maintained against a tradesman for goods left with him for manufacture, until his charges for work done on the goods have been first paid or tendered.
    3. Macky v. Dillinger, 23 P. B. Smith 85, distinguished.
    4. In replevin, under the plea of property, the defendant is at liberty to show either a general or special property in himself, and he is not bound to give notice to the plaintiff that he claims under any special title. The plea of property imposes on the plaintiff the necessity of establishing his title and the right of exclusive possession.

      5. Where parties without objection or remonstrance, have gone to trial on the merits of a cause, this court will refuse to reverse, although the pleadings made no issue for the jury.
    6. Gillespie v. Goddard, 1 Pittsburgh Rep. 306, discussed, and its authority questioned.
    March 25th 1878.
    Before Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Agnew, C. J., absent.
    Error to the Court of Common Pleas of Montgomery county: Of January Term 1876, No. 57.
    Replevin by William B. Sellers and John Henry Radey, trading as Sellers k Radey, against Abner J. Mathias, for a lot of cigars which were manufactured by defendant for plaintiffs, from tobacco furnished by the latter. The defendant having entered a claim property bond, pleaded non cepit ” and “property.” It appeared at the trial that Mathias, who is a cigar manufacturer, in the fall of 1872, entered into an agreement with the plaintiffs, who are tobacco merchants, whereby the latter were to furnish defendant with tobacco at certain specified prices, which was to be manufactured by him into cigars of such kinds and brands as the plaintiffs from time to time might designate. Fixed prices were to be allowed for the manufacture of the cigars, according to their quality, and advances were to be made to the defendant for wages and for the stamps for the cigars, as the work progressed and the cigars were delivered. Mathias also had the privilege of selling to others at the prices fixed. If any of the tobacco should prove to be inferior in quality, a corresponding deduction was to be made in the price of the cigars. On the 6th of November 1873, the defendant had 90,000 cigars in his possession, manufactured as per agreement. The stamps were procured and paid for by plaintiffs. When they sent an agent to remove the cigars, Mathias refused to consent to their removal until a settlement had first been made. It appeared upon examination of the accounts that the defendant owed plaintiffs for tobacco, including stamps, &c., about $2885. The cigars in the hands of defendant were of the value of about $2820, and he alleged that some of the tobacco was damaged, and that some cigars had not been paid for, and that if the cigars had been removed, Sellers & Radey would have been indebted to defendant in a considerable amount; alleged to be $700. No tender of this sum or any part of it was made before Mathias refused to allow the cigars to be removed. It was alleged, and evidence was offered to show, that there was a special agreement with reference to these 90,000 cigars, and that by its terms the stamps were to be paid and the cigars were to be taken away, and that thereafter a full and final settlement was to be made.' Such an agreement was denied by defendant. The defendant submitted the following points, with which are given the answers of the court:
    1. If the jury find that if upon the delivery of the cigars to Sellers & Radey there would have been anything due to Mathias upon the price, the plaintiffs cannot recover in this case without a tender of the amount so due before suit.
    Ans. “We decline to affirm this point: and for further answer we refer to the general charge.”
    2. Mathias had a right to retain the cigars until the payment of the. price agreed upon, and if any of the price remained unpaid, the plaintiff had no right to maintain this action without first tendering to the defendant the full amount due.
    Ans. “If the conclusions stated in this point be true, as matters of law and fact, the plaintiffs cannot maintain this action unless they first tendered the defendant the amount in full of the unpaid purchase-money, of which there is no evidence.”
    In their general charge, the court, Ross, P. J., inter alia, said-: “I am requested to charge you that inasmuch as it appears that the work in manufacturing the cigars had not been fully paid at the impetration of the writ, Mr. Mathias had the right to retain them as security for his payment, and that the plaintiffs had no right to the possession of the cigars until they had paid this amount, or tendered its payment. It is true, that a mechanic or' a manufacturer has a lien upon goods, on which or over which he has expended his labor, until lie is reimbursed. Thus, if I give a tailor cloth, out of which he is to make me a suit of clothes, he may hold the garments until I pay him for his labor, or offer to pay him by tender legally made.
    “ [Were it not for a comparatively recent decision of our court of last resort, I should rule that this action could not be maintained because the amount is still due, being over $200, and there is no evidence of any tender; but in a recent case a rule has been adopted in cases of this character, and it is declared that in actions of this class, when goods are the subject of a lien or charge, the charge upon them can be enforced by way of recoupment: Macky v. Dillinger, 23 P. E. Smith 85.]”
    “ [I charge you, therefore, that the existence of a balance due the defendant, for work done in manufacturing these cigars, will not defeat the plaintiff’s right to maintain this form of action.]”
    The verdict was for plaintiffs for $2809.14, with 6 cents costs. After judgment thereon, defendant took this writ, assigning for error the refusal of his points and the portions of the charge in brackets.

      B. M. Boyer and J. Wright Apple, for plaintiff in error.—
    Every bailee for hire who by his labor and skill imparts an additional value to goods has a lien upon the property for his compensation : 2 Kent’s Commentaries 635; Story on Bailment 440; McIntyre v. Carver, 2 W. & S. 392; Pierce v. Sweet, 9 Casey 151; Hoover v. Epler, 2 P. E. Smith 524. The ruling of the court below was based upon the case of Macky v. Dillinger, 23 P. F. Smith 85, which we contend has no application to the case at bar. In delivering the opinion in that case, Agnew, J., said: “ Set-off does not exist in replevin, but when goods are the subject of a lien or charge, the charge upon them can be enforced by way of recoupment, for the charge is inseparable from the thing itself, and therefore when the value' of the thing is to be allowed in damages, the charge necessarily reduces the damages by way of recoupment in order to do justice to both parties.” It was the scope of this language which the judge below mistook. It was quite correct when applied to the particular case in which the opinion was delivered, or to the class of cases to which it might be said to belong. But surely, it could not have been intended to apply to actions of replevin in general, where there is an existing lien in favor of the defendant. If it is to be so understood then it sweeps away the old and well-settled characteristics of this form of action, and the right to retain possession is converted into a new right, which is nothing else than the right of set-off. If it does not mean this, then the right to recoupment comes in only where the right-of possession does not exist. Under the Factor Act of .1834, which ruled the case of Macky v. Dillinger, supra, the latter as against the former had the right of possession, because Macky had received the goods as a pledge of security from Moorehead when he knew they were the goods of Dillinger. Moorehead had parted with the possession, and Macky unlawfully received and held them in possession for his own loan to Moorehead, and demanded, not Moorehead’s advance to Dillinger, but his own advance to Macky. He thus brought himself within the principle, that when a party refuses delivery except upon terms to which he is not entitled, he waives his right to'a tender of the terms which otherwise he could demand, as an act precedent to the bringing of the suit against him. After that it, is true his only remedy is by way of recoupment. This is the ground upon which the ruling in Macky v. Dillinger is expressly put.

      James Boyd, for defendants in error.
    — The question of defendant’s right to a lien on the cigars, Avas not raised by the pleadings. Where a plaintiff in replevin has a general right of property, and the defendant justifies under a special right to retain possession, he should set forth the special title in his plea: Gillespie et ad. v. Goddard, 1 Pitts. Rep. 306; 2 Troubat & Haley 182, ed. 1853: Pearle v. Bridges, 3 Saunders 402; Smith v. McNeal, 18 P. F. Smith 164; Aiken v. SteAvart, 13 Id. 33; Reber v. Wright, 18 Id. 471.
    We fail to see how Macky v. Dillinger SAveeps away the old and well-settled characteristics of the action; it enunciates no new principle, nor does it establish a principle that will deprive a man of goods that belong to him, through the instrumentality of a Ávrit of replevin; it only enables a man to shoAV the goods are rightfully
      his, and the other man has the right to show they belong to him by reason of the accounts and transactions between them, and in so doing does not do it on the line of set-off. Again, the jury have found the original contract to be that Sellers & Radey were to furnish the tobacco to Mathias at a specified price, which he was to make up into different kinds of cigars and deliver them to Sellers & Rady at fixed prices. The true construction of this agreement is that Sellers & Radey were not to pay Mathias until after the cigars made of this tobacco were delivered to them. If so, there was nothing due to Mathias until they were so'delivered or “ turned in.” This view of the case brings us directly within the ruling in Lee v. Gould, 11 Wright 398.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

In the fall of 1872, Sellers & Radey, the plaintiffs below, entered into an agreement with Mathias, the defendant, to furnish him with tobacco at prices that were specified. This tobacco was to be worked up by the defendant into cigars of such kinds and brands as the plaintiffs from time to time should designate. Fixed prices for the manufacture of the cigars according to their quality were to’be allowed, and advances were to be made by the plaintiffs to the defendant for stamps and wages as the work should be done and the cigars be delivered.

On the 6th of November 1873, the defendant had manufactured 90.000 cigars, which were in his possession. The stamps for them were procured and paid for by the plaintiffs, who alleged at the trial that an agreement was then made with the defendant by Avhich they were to take them away when stamped, and a full and final settlement was afterwards to be made. Under this agreement the plaintiffs insisted that the right the defendant joossessed to retain the cigars as security for the balance due for their manufacture had been waived. There Avas conflicting evidence on this branch of the case, the defendant denying the existence of the suppflementary agreement. The question was one of fact for the jury, but it does not apopear to have been submitted. As the court held that the defendant was not in any event entitled to a lien, it became unimportant to ascertain whether it had or had not been waived.

When the replevin issued, the balance of the account of the plaintiffs against the defendant was $2585.40. This sum included $450 paid for stamps on the 6th of November 1873, and $54.65 paid to the sheriff, apparently for expenses in the action. The value of the 90.000 cigars the defendant had made Avas shoAvn by the testimony to be $2820. Including in the charges against him the $54.65 paid to the sheriff, there was due to the defendant, therefore, the sum of $234.60. Suit was brought without payment or tender of' the amount, and the court charged at the trial that the existence of a balance for work done in manufacturing the cigars, did not defeat the right of the plaintiffs to maintain the action.

It has long been a settled rule of the common law, that- goods deposited with a tradesman or artizan for .manufacture or repair, are subject for the work done on them to a specific lien. Thus, a tailor who has made a suit of garments out of the cloth delivered to him, is not bound to deliver the suit to his employer until he i’s paid for his services. Neither is a ship carpenter bound to restore the ship which he has repaired; nor a jeweller the gem which he has set, or the seal which he has engraved; nor an agistor the horse AYhich he has taken on hire, until their respective compensations are paid. Story on Bailments, § 440, and the cases there cited. Though the right of lien probably originated in those cases in which there Avas an obligation, arising out of the public employment, to receive the goods, it is not now confined to that class of persons. A particular lien is given by the common laAV to any one who takes property in the AYay of his trade or occupation, to bestoAY labor and expense upon it. And it exists equally whether there be an agreement to pay a stipulated price, or only an implied contract to pay a reaspnable price : 2 Kent’s Com. 635. It AYas said by Holroyd, J., in Crawshay v. Homfray, 4 Barn. & Ald. 50, that the principle laid down in Chase v. Wetmore, 5 Maule & Sel. 180, Avhere all the cases came under the consideration of the court, AYas this, that a special agreement did not of itself destroy the right to retain; but that it did so only Avhere it contained some special term inconsistent with that right. In 2 Selwyn’s Nisi Prius 540, the rule is stated to be, that the right of detaining a thing until the money due upon it be paid, may be Avaived by a special agreement as to the time or mode of payment; but not merely by an agreement for the payment of a fixed sum. The existence of the principle in its full reach has been recognised in Pennsylvania. McIntyre v. Carver, 2 W. & S. 392, Avas a replevin for thirty-four panel doors, AYhich McIntyre had made from lumber delivered to him by Carver. The suit Avas brought Avithout payment or tender of payment for the Avorlt McIntyre had done; but while it Avas pending, the money Avas offered and received. It Avas held that the tender and acceptance came too late to help the plaintiff. The suit was brought,” Chief Justice Gibson said, in entering the judgment, “ before the right of action Ayas complete, and such a defect cannot be cured by any subsequent act except a binding agreement not to take advantage of it.” In Pierce v. Sweet, 9 Casey 151,fit was decided that a bailee to AA'hom logs had been delivered to be converted into boards, had a lien on them for his labor independent of any special agreement; and that he could maintain an action against an execution creditor of the bailor by Avhom they had been taken out of his possession. It is clear, under all the precedents, that unless the defendant here Avaived his lien by some such new agreement as that AYhich the plaintiffs set up at the trial, he had the right to retain the cigars in controversy until he was paid for the work he had done in making them.

Nothing that was decided in Macky v. Dillinger, 23 P. E. Smith 85, was in conflict with the settled law of lien. Dillinger consigned goods to Moorehead, who advanced $1500 on them, and then pledged them, with other property, to Macky, to secure a loan for $3700. Macky knew they belonged to Dillinger. When they were demanded by Dillinger, Macky refused to deliver them except on the condition that his loan to Moorehead should be paid. Nothing was said at the time of Moorehead’s advances, and in the action of replevin which Dillinger brought, it was held that Macky had no right to set up Moorehead’s lien in his own defence; that as against him Dillinger could maintain his action without tendering repayment either of the loan made by himself or of -the advances made by Moorehead; and that the amount of the advances could be recouped from the damages Dillinger was entitled to recover. The decision was stated in the opinion of the present Chief Justice to rest on “the general doctrine of tender, that when a party declines to accept payment or performance except in a particular way to which he is not entitled, he cannot insist that the action is prematurely brought.”

At the argument here, the ground was taken that the pleadings did not present the issue tried in the court below, and that the question of the defendant’s right to a lien on the cigars in controversy could not be raised uhder the pleas of non cepit and property. If the point had been made at the trial, it may be that under the authority of Gillespie v. Goddard, 1 Pittsburgh. R. 306, a special plea would have been required to be filed; although in the current practice of our courts, questions of lien and of general and qualified ownership have usually been determined upon the pleas that were entered here. Non cepit and property were pleaded in McIntyre v. Carver. In Murray v. Paisley, 1 Teates 197, the plea was property absque hoc, under which the defendant offered to show a submission and award establishing his right to retain the goods in suit in a certain defined contingency. The court said : “ The evidence is certainly admissible. The defendant is at liberty under his plea to show either a general or special property in himself, either by bill of sale, delivery from the plaintiff, contract or otherwise. The defendant is not bound to give information to his adversary under what pretensions he claims the article in question.” The plea of property imposes on the plaintiff the necessity of establishing his title and the right of exclusive possession: Reinheimer v. Hemingway, 11 Casey 432. But it is not proposed to inquire into the scope and force of Gillespie v. Goddard as a precedent. Whatever the abstract rule might be held to be, it is too late to invoke it now. The points were presented to the court by the defendant’s counsel, and the jury were charged in reference to them without.objection or remonstrance. Where parties have gone to trial on the' merits of a cause, this court lias refused to reverse, although the pleadings made no issue for the jury: Lewisburg Railroad Co. v. Stees, 27 P. F. Smith 332. “In this state,” Judge Sharswood said in that case, “it is settled that the omission to compel the opposite party to perfect the pleadings beforehand, is a tacit agreement to waive matters of form, just as going to trial on a short plea is a waiver of the right to demand a plea in full form.” The merits of the cause were presented by the parties precisely as .if a special plea had been upon the record.- The points really contested in the Common Pleas are brought up fairly for review, and form the only issues which, with justice to the defendant and his counsel, this court can reach.

Judgment reversed and venire faaias de novo awarded.


author: Mr. Justice Paxson

text:
    Caley et al. versus Hoopes.
    1. H. sold a farm to C. foi-’§10,000, of which §2500 were to remain on mortgage. The balance of the consideration consisted of tw.o judgments, one for §4500, which was to be entered up, and another of §3000, which was not to be entered. In this latter, D., who was a responsible party, was joined with C. H. transferred the §4500 judgment to B., and agreed to become security for its payment. At the instance of II., O. insured the barn on the premises and assigned the policy to II. as “collateral security for the payment of money loaned on the property therein insured.” H. paid the premiums on the policy. The barn was destroyed by fire, and the proceeds of the policy having been paid to II., O. claimed that he should apply them to the §3000 judgment. Held, that the assignment of the policy was intended as a security for the §4500 judgment; that the liability of II. to B. was an insurable interest, and that the cla-im of O. could not be sustained.
    2. A written instrument under seal, and free from ambiguity, cannot be affected by a conversation of the parties thereto, which occurred nearly two months prior to its execution. ■
    March 26th 1878.
    Before Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Agnew, C. J., absent.
    Error to the Court of Common Pleas of Delaware county: Of January Term 1878, No. 128.
    Cyrus Hoopes, on March 2d 1876, entered judgment against William R. Caley and John Conner, on their bond and warrant, dated March 29th 1874, conditioned for the payment of $3000. The defendants obtained a rule to open this judgment, which the court made absolute. The plaintiff then filed a declaration, and the defendants pleaded payment, with leave, &c.
    It appeared that Hoopes sold to Caley a farm, in Chester county, and conveyed the same to him on March 27th 1874, for a consideration of $10,000. Caley assumed a mortgage on the property for $2500, and gave two bonds with warrants of attorney to Hoopes for the value of 'the purchase-money. One of these bonds was for $4500, and the other for $3000. In the latter John Conner, who owned property in Delaware county, was joined. The judgment-bond for $4500, was to be entered up in Chester county, but it was the understanding that the $3000 bond should not be entered anywhere. IToopes assigned the $4500 judgment to his sister, Mrs. Bailey, becoming security for its payment. In June, Caley had the barn and its contents insured for $3400, $2500 being allowed to the barn and $900 to the contents. This policy was assigned by Caley to Hoopes without the knowledge of Conner. The assignment was as follows:—
    “For a valuable consideration I assign to Cyrus Hoopes, of West Marlborough township, all my interest and claim to the within policy of insurance, as collateral security for the payment of money loaned on property therein insured. Witness my hand and seal the second day of July, a. d. 1874.
    Wm. R. Caley. [l. s.]
    Witness present,
    Jennie B. Eire.
    Approved 7 mo. 9, 1874. C. H. Bradley, Sec.”
    Hoopes paid the premiums on this policy, and it appeared that it was procured at his instance. Caley testified that “ Hoopes wished to hold this policy over Conner and me,” and that Hoopes had said, “ I am not going to enter the Conner bond, I wish to have it to hold against yo.u and Conner.” On the 11th of September, the barn and its contents were destroyed by fire, and on the 19th of the same month, Hoopes entered judgment on the $3000 bond and warrant in Chester county. After the fire the following notice was sent to Hoopes:—
    “ September 21, 1874.
    To Cyrus Hoopes :
    Whereas I, William R. Caley, assigned to you a certain policy of insurance upon property conveyed by you to me in this county, as collateral to secure the payment of a certain bond given to you by us, William R. Caley and John Conner for $3000, dated the 27th day of March, a. d. 1874; now you are hereby notified not to assign, transfer or in any way part with the said policy of insurance, as we shall require the proceeds thereof to be applied to the payment of the above-stated bond.
    Signed, William R. Caley.
    John Conner.”
    On December 16th, Hoopes received the proceeds of the policy and gave to Oaley $900 for the contents of the barn, paid to Mrs. Bailey $1500, and retained $1000 himself. On March 2d 1875, the $3000 judgment-bond was entered up in Delaware county, and on April 2d 1875, execution issued thereon. On the 17th of the same month the court granted the rule to open the judgment, which was made absolute and an issue directed to try how much if anything was due on said judgment. At the trial, the foregoing facts were disclosed, and then defendants offered to show why Hoopes retained the $1000, and also, that Conner was the security of Caley on the$3000 bond; both of which offers the court, Clayton, P. J., rejected. There was other evidence tending to show that it was so retained for the purpose of rebuilding the barn. The defendants submitted the following points, to which are subjoined the answers of the court:—
    1. The only judgment held by the plaintiff at the time of the transfer was the one in controversy. Hence the transfer, if good at all, was as collateral security for that judgment alone.
    Ans. “ Refused.”
    2. The only connection the plaintiff had with the judgment held by Mary H. Bailey was that he had become security for its payment. The transfer might have been made to cover this risk by appropriate language approved by the company; but the language used is not sufficient for that purpose.
    Ans. “ I decline to charge as requested. It might be good law in a suit between the insurance company and Caley, but as between Hoopes and Caley it has no application.”
    3. The plaintiff’s contract of suretyship was a personal one which Mrs. Bailey might, recover upon by suit; but it was in no sense an insurable interest in the property insured, nor a loan of money upon that property, therefore it was neither within the spirit nor letter of the transfer.
    Ans. “The first sentence is affirmed. I decline to say that the $4500 was not a loan of money upon the property mentioned in the policy; as between these parties it was so considered.”
    4. The assignment of the policy is not an appropriation of the money which might become due by reason of fire. Caley had the right to direct its appropriation at any time before its receipt by the plaintiff, bound only by the terms of the transfer to appropriate it to some debt due to the plaintiff.
    Ans. “Refused.”
    5. Caley having appropriated the money to the payment of the judgment in controversy, before its receipt by the plaintiff and giving him notice of it, the plaintiff is bound by that appropriation.
    Ans. “ He had appropriated the money when he made the assignment as collateral security for money loaned on the farm. I construe the assignment as collateral security for money loaned on the farm. If the $3000 was npt to be secured on the farm it was not included in the assignment.”
    In their general charge, the court said : “ Mr. Hoopes conveyed the farm and took the $4500 judgment, which he entered against the property sold. He afterwards accepted Conner as security for the remaining $3000, and did not enter it against the property sold. He afterwards procured a policy of insurance for $3400;

      SUPREME COURT [Philadelphia [Caley v. Hoopes.] $900 of which was to be for Caley’s benefit, the balance to be as collateral security for money loaned on the premises. My construction of this assignment is, that it was to secure the $4500 judgment; that the parties considered that sum loaned upon the premises sold, and the $3000 as a separate and independent security; and that the proceeds of the policy after the fire were to be apportioned : first, $900 to Caley for the contents of the barn; the balance to be applied to the $4500 judgment; and that accordingly your verdict ought to be for the plaintiff for the face of the judgment ; and you should also find what sum is now due upon it.”

      J. M. Bróomall and W. B. Waddell, for plaintiff in error.—
    Iioopes’s judgment was not a specific lien, and he had no insurable interest: Grrevemeyer v. Ins. Co., 12 P. F. Smith 340. Nor was the policy assigned to him as security for his suretyship on the judgment assigned to Mrs. Bailey. He was not, therefore, entitled to retain any portion of the proceeds of the policy.

      V. Crilpin Robinson and Charles W. Pennypacher, for defendants in error.
    — The case of Grevemeyer v. Insurance Co. does not apply. That was a contest between a judgment creditor of the insurer and the insurance company; this is a controversy between the obligors in a bond and the obligee, as to in what manner the obligee shall appropriate the proceeds paid by the company. Has Conner a right to dictate the appropriation of the $3400? The $3000 bond was an independent, separate obligation, having nothing to do with the premises insured. The $4500 bond was a lien upon such premises. The words used in the assignment create a suretyship on the part of Hoopes: Allen v. Hubert, 13 Wright 259. The policy of insurance was a contract of indemnity, and was assigned to Iioopes to secure “ money loaned on the premises,” for the payment of which Hoopes was bound: Smith v. Columbia Ins. Co., 5 Harris 253.
    May 6th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

We are of opinion that the learned judge of the court below was right in his construction of the assignment of the policy of insurance. It was under seal and expressly stated to be “ as collateral security for the payment of money loaned on the property therein insured.” It was free from ambiguity. Had Cyrus Hoopes, the assignee of the policy, money loaned on the property insured ? Upon this point there is no conflict of testimony. He had sold a farm to Caley, the insured, for $7500, subject to a mortgage of $2500, no part of the purchase-money of which has been paid. In order to secure it he took a judgment for $4500, which he entered up, and which was a second lien upon the property. There was still $3000 due. For this he took a judgment bond from Caley with John Conner as security. Conner owned a farm in Delaware county, and this bond Ayas not entered, and it Ayas agreed that it should not be. This, however, is not material; it was clearly not a loan upon the farm purchased by Caley, but Avas a Joan upon the credit of Conner, and Avas not protected by the terms of the assignment of the policy. In fact Conner did not know of the existence of the insurance until after the fire. The policy was obtained at the instance of Hoopes, the judgment creditor, and the premium was paid by him. Subsequently he procured an assignment of it to himself. It seems incredible that he should have done all this for the benefit of Conner. There Avas abundant reason why he should desire to protect his $4500 judgment. With the destruction of the buildings by fire and Avith a prior mortgage of $2500 upon the property, a portion.of his money at least would have been in peril.. The bond of Conner Avas good; there Avas no reason to apprehend loss in that quarter.

There Avas no evidence to contradict the assignment beyond a vague conversation between Hoopes and Caley, alleged to have taken place in May, in Avhich Hoopes (according to Caley’s testimony), said: “ He Avished to hold it (the policy) as collateral over Conner and me. He said I am not going to enter the Conner bond, I wish to have it to hold against you and Conner.” This, if true, amounts to nothing, aside from any question of its competency. At most it Avas but a scintilla. Had the conversation occurred at the time of the assignment, it Avould have been entitled to more weight, but it is utterly worthless to affect a written instrument under seal, free from ambiguity, and executed nearly two months aftenvards. Nor Avas this evidence entirely inconsistent with the terms 'of the assignment. Caley gets the full benefit of the insurance-money directly. Conner gets the benefit of it indirectly by the application of a portion to the payment of a prior lien, the rebuilding of the barn, and the increased ability of his principal debtor to pay by the receipt of the $900 for the contents of the barn.

The fact that Hoopes had assigned the $4500 judgment to his sister does not affect the question. He was responsible to her for the money, and had an interest to protect. His sister, on the contrary, Avas protected by his guarantee.

The important assignments of error have been disposed of in this brief discussion. It remains to notice one or two matters of detail. We see no error in rejecting the evidence that Conner was Oaley’s security on the $3000 bond. It was not pertinent to any issue before the jury. Nor are we able to perceive -that the exclusion of the question in regard to the $1000 retained for the purpose of rebuilding the barn, worked any injury to the plaintiffs in error. The question appears to have been answered and not subsequently ruled out. But if otherwise it is manifest the $1000 was in the hands of Hoopes for the purpose of rebuilding Caley’s barn, and no point was made below that it should be applied either by way of payment or set off in this suit.

Judgment affirmed.


text:
    Baker versus Gartside et al.

    By certain Acts of Assembly, the members of council of the South Ward, of the city of Chester were authorized to erect waterworks and to lay water-pipes, the cost thereof to be borne by the property-owners, in front of whose properties the pipes were laid, and who applied for the use of the water. The option was given the property-holder to pay for said pipe, at a fixod price, or to pay the interest on the cost of the pipe so laid. The owner of a corner lot applied for the use of the water, and paid for the pipe laid along one front of his property. Subsequently, pipe was laid along the other front without his consent, and the water from which was in no way used on the premises. Suit was brought by the councilmen for the interest on the cost of the pipe thus laid. Meld, that the right to maintain this action depended upon contract, and as the defendant had only applied for the water on one front, this contract could not be made to include the other front, and he was not liable.
    March 26th 1878.
    Before Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Asnew, C. J., absent.
    Error to the Court of Common Pleas of Delaware county: Of January Term 1876, No. 129.
    This was an amicable action of debt, brought by Amos Gartside and others, members of the City Council of the South Ward of the city of Chester against Perciphor Baker, to recover the cost of laying- water-pipe along what was alleged to be the front of defendant’s dwelling. It appeared by the Act of March 2d 1867, Pamph. L. 882, the members of the city council of the said South Ward were authorized to contract for the erection of waterworks to supply said ward with water, and for the laying of the pipes to conduct the same, and it was provided, that the expense thereof should be paid by the owners of the ground in. front of which such pipes should be laid. It also appeared that by a supplement to this Act of March 24th 1869, Pamph. L. 519, said council were authorized “ to assess, levy and collect, annually, from the time of laying such pipes, from property in the said South Ward, on each side of the street, lane or alley in which said water-pipes have been or may be laid, a rate not exceeding seven per cent, upon a sum equivalent to one dollar per lineal foot for the said water-pipe, in front of the respective properties on each side of said streets, lanes or alleys; and that in the Middle and North Wards of the said city, from properties for which water has been applied for and introduced, there shall be assessed and collected, annually, the rate above specified, in the same manner and with the same force and effect as set out in the preceding sections; provided, that any property owner, in any of the wards of the said city, may, at his option at any time, pay for the said pipe at the rate of one dollar per foot, and arrearages to the time of such payment, and thereupon be released from any liabilities therefor.”
    Baker owned a lot on the north-eastern corner of Ninth and Potter streets, in the North Ward of the city of Chester. The water-pipe was laid in front of the property on Ninth street in June 1869, and water was introduced into the premises in May 1870. For the pipe thus laid on Ninth street, Baker paid one dol-' lar per foot, as the act provided. Pipe was laid along the Potter street side of defendant’s property in 1871. This action was brought to recover the interest for four years on the value of the property on said street. It was in evidence that the premises were supplied wholly from the pipes on the Ninth street front, that there was no connection with the pipes on Potter street, and that the property derived no benefit whatever from the latter. The defendant submitted the following points, which the court refused:—
    1. The only authority, as far as appears, for the plaintiffs to make the charge here claimed, is the Act of 1869. If the jury find that the water was not introduced into defendant’s property until after the passage of the said act, the plaintiffs cannot recover.
    3. If the jury find that the pipe on Potter street has not been used by the defendant, that his premises were fully supplied from the pipe on Broad street, and by it have been amply connected with the waterworks, the plaintiffs cannot recover.
    The defendant also contended that the Acts of 1867 and 1869 were unconstitutional. The court directed a verdict for the plaintiff, reserving the question “Avhether, under the Acts of Assembly touching the matter in issue, the plaintiffs can recover.”
    A verdict was accordingly rendered for $19.35, the amount of interest claimed, and subsequently the court entered judgment on the verdict, in an opinion on the question reserved, saying:—
    “ Upon the constitutional question raised upon the argument of this case, we give no opinion. We, nevertheless, hold that the plaintiffs are a quasi municipal corporation. The South Ward is a part of the corporation of Chester, and is within the spirit of the law governing the powers of municipal corporations.
    “The case depends upon the proper construction of the Act of 1869. It must have a reasonable interpretation. The fact that its language is not strictly grammatical, or that the meaning of the legislature might have been expressed in a clearer form, is not enough to deprive the act of the object for which it was undoubtedly intended. It uses the past and future tenses in the first section, and the past tense only in the second section. The defendant contends that the true construction of the second section is to authorize the levy of the rate therein named, upon properties for which water had been applied for, and introduced at the time the act was passed. As all pipes then introduced had already been paid for, this construction would, therefore, be senseless. The object of the act was not to enforce double payment for pipes then laid, but to enforce payment for those subsequently laid. The meaning of the words, ‘has been applied for and introduced,’ clearly refers to the time when the assessment is made, and not the date of the passage of the act. This construction is consistent with the intention of the act as expressed in its preamble, and manifestly subserves the purpose for which it was passed.”
    The defendant took this writ, assigning for error the refusal of his points, and the entry of judgment for plaintiffs on the question reserved.

      J. B. Hinhson, for plaintiff in error.
    — It was the intention of the Act of 1867, that only those who applied for the water, should be subject to the assessment. Baker never applied to have the use of the water on Potter street. On the contrary the pipe was laid there without his knowledge or consent. The councilmen are not a municipal corporation and the legislature could not confer upon them the power of taxation. The Act of 1867 only allows collections for pipo laid in front of properties. The word front is well defined and has a universal meaning: City v. Michener, 30 Leg. Int. 116.

      .William Ward and William B. Broomall, for defendants in error.
    — The defendant does, in fact, use the pipe on Potter street and the pipes on many other streets. A property owner may be said to use all the pipes through which the water runs from the reservoir to his attachment. The using of the pipes is not, therefore, the criterion to test his liability.
    The intention of all this class of legislation is that the water companies shall be reimbursed the outlay made in laying all the pipes. If it is said that this bears hard on corner properties, it is answered that the burden as to water-pipes is not exceptional. The same burden exists as to paving streets and sidewalks, and they are justified, for the reason that corner properties are more valuable, from their public positions. Whether or not the increased public burdens are nicely graded with the increased value is not important. Absolute equality in the imposition of taxes is not to be expected.
    A corner lot has two fronts: ■ Act April 8th 1851, Pamph. L. 358, Ordinance of Philadelphia, June 2d 1866. The defendant’s liability does not depend on the nature of this corporation; his liability is fixed by his contract.
    April 4th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

By Act of March 2d 1867, the members of the city council of the South Ward of Chester city, were authorized to erect waterworks for the use and benefit of said ward. By a supplement, approved March 24th 1869, the authorities above mentioned were empowered to assess, levy and collect annually, from property in the said ward in the front or along the side of which water-pipes had been laid, a rate not exceeding seven per cent, upon a sum equivalent to one dollar per lineal foot of said pipes. By the 2d section of this same supplement, the officers above named were empowered to assess and collect a like rate on and from properties in the North and Middle Wards, for which an application had been made for water, and into which it had been introduced. We agree with the court below that, though in this section the past tense is used, the intent was not to limit the power of assessment to pipes then laid, but that the act also applied to such as should thereafter be laid. It was further provided, in said section, that any pro•perty-holdei’j by paying for such pipe, at the rate of one dollar per foot, together with any arrearages that • might be due, should be released from all further liability therefor. It follows, that the property-owners of the North and Middle Wards were not liable to the above-stated assessments unless they applied for and. had water introduced into their several premises, and that they might, when, at their request, water was so introduced, release themselves from such assessments and all future liability, by paying one dollar per foot for the pipes then fronting their properties. '

The matter thus, as to those of the North and Middle Wards, since the Act of 1869, resolves itself into a mere question of contract. If the property-holder desires to supply himself with water from the works of the South Ward, he may do so under the terms and conditions of the act; and on the other hand, the-South Ward can impose no other or additional terms than those existing at the time of the contract.

Now, on the 6th of May 1870, Baker had water from the pipe on Ninth street, the only one at that time in the vicinity of his premises, introduced into his property; he paid for the Ninth street pipe in full, and so was, as matters then stood, discharged from all further assessments. In 1871 the authorities of the South Ward laid the Potter street pipe, and for this they now seek to assess the defendant. By what authority? Not because he uses the water from that street, for this he does not do, and not because of the water, he obtained from Ninth street, for that he bought and paid for in full. Whence, then, comes the authority of the plaintiffs to go back upon a contract, fully and fairly performed by the defendant, and compel him to pay for that for which he never contracted ? It is urged that, in fact, he is in part supplied from the Potter street pipe, since this being connected with that on Ninth street, the w'ater must necessarily flow from the one to the other. This argument is exceedingly unsubstantial, for it is not so much as alleged that Baker’s supply from Ninth street, before the connection was made, was not ample, or that it was not, in fact, made wholly for the advantage and profit of the South Ward. We may thus pass the constitutional question raised on the power of the legislature to invest the officers of this ward with the franchises found in the act, for, as we have already said, the question before us is one of contract, arising under the second section of the statute; by the contract, as it existed in 1870, the case must be governed. The conclusion is, that as the defendant fully performed, on his part, every obligation which he then undertook to perform, the authorities of the South Ward can require nothing further from him.

The judgment, is reversed, and a new venire awarded.