author: Mr. Justice Paxson

text:
    Philadelphia and Reading R. R. Co. versus Schertle.
    1. Where in an action against a railway company for injuries or death alleged to have been caused by the negligence of the defendant’s agents or servants, there is no evidence of such negligence, or at most a scintilla, it is the duty of the court to withdraw the case from the jury, and to give binding instructions in favor of the defendant.
    2. A., a brakeman on a railroad train, was engaged on a dark night in coupling and uncoupling oars, in order to couple a certain freight oar to an engine, it became his duty to remain on the steps of the engine tank, where he was already standing, while the engine backed to the car. He jumped off, however, from the step of the tank and crossed the track, an act which there was on necessity that he should perform; shortly afterwards the engine was backed, when A. was heard to cry out, and seen to spring back from the tank, the wheels of which almost immediately passed over his body and killed him. No one saw how or why A. fell. There was some evidence that the steps of the tank were defective in number and construction, but A., who had been employed about the engine in question for a long time, was not directly proved to have ever asked for their alteration, although the company was in the habit of making such changes on application of their employees-; it also appeared that the road-bed was rough by reason of recent repairs. In an action bv tbe widow and children of A. against the railroad company to recover damages for his death, alleged by them to have occurred while he was endeavoring to climb upon the tank, by reason of tbe failure of the company to provide proper steps and a smooth road-bed: Held, that there was no evidence of negligence to submit to a jury, and that tho court should have given binding instructions to find for the defendant.
    3. Per Paxson, J. — There is no duty on the part of a railway company to ballast its tracks for the safety of its employes, and except perhaps at a crossing, no such duty to the public.
    March 18th 1881.
    Before Sharswood, C. J., Merche, Gordon, Paxson, Turnkey, Stkrrett and Green, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1880, No. 115.
    This was an action on the case brought by Sarah Schertle, widow of George Schertle, deceased, for the use of herself and her children, against the Philadelphia and Reading Railroad Company, to recover damages for the death of her husband, caused, as alleged, by the negligence of the defendants.
    On the trial, before Pershing, P. J., the evidence was to the following effect: George Schertle had been in the employ of the said company, as brakeman on a freight train, for about six years prior to September 25th 1874. He was a careful, sober and prudent man. On the morning of that day, before daylight, while engaged with his fellow employes in shunting a car on to a siding near Port Clinton, his leg got under one of tho wheels of the engine-tender, and from the injuries so received he died the same day. The crew of tho freight train consisted of the engineer and fireman, a front, middle and rear brakeman and conductor. On the occasion in question there was a car of the train to be left at Port Clinton; at this place the Little Schuylkill Railroad, a branch of the Philadelphia and Reading Railroad, makes a junction with the main line a short distance south of the station ; the train stopped on the main line a short distance north of the station house; the car to be left at Port Clinton was uncoupled from the train, and, attached to the engine, was hauled over a short connecting track from the main line to the track of the Little Schuylkill Railroad, on a siding of which latter road the car was to be left; it was the duty of the front brakeman, Andrew Moss, to turn the switch, so that when the car would be run back by the engine it would run on the Little Schuylkill tracks; and it was the duty of George Schertle to watch the action of Moss, and when the switch would be turned to signal the engineer to come back with the engine and car; and then Schertle’s duty was to get on to the rear end of the tank or tender, and as the car was being pushed back to uncouple it from the engine. The car was pushed back and Shertle uncoupled it, but Moss did not succeed in getting the switch turned and the car was run back upon the connecting track, the same over which it had been taken, instead of the Little Schuylkill track. The engine gave only a slight impetus to the car, and the engine did not pass the switch. It then became necessary to back the engine up to the car .and couple it, and move it back over the switch on to the Little Schuylkill track. It was George Schertle’s duty to make this coupling. The proper and customary place in which to do this was from the rear of the tank, a position which Schertle already occupied. Eor some unexplained reason, however, he jumped off the tank and crossed the track. The engine was immediately backed towards the car. Suddenly Schertle was heard to cry out, and a moment after the wheels of the tank were felt to pass over his body.
    Ho one saw, nor could any witness tell how George Schertle got under the wheel of the tank. The plaintiffs claimed that the accident was caused by the negligence of the railroad company in two things : imperfect steps at the end of the tank, and that the roadbed at the place of the accident was dangerous, by reason of the filling or ballast between the sills not being up to the top surface of the sills. There was some evidence that there was but one step on the tank; but Andrew Moss, the front brakeman, testified there tvere two steps. It was proved that George Schertle had used this step or steps for over a year immediately prior to the accident. There was no evidence that he ever complained that they were unsafe. At the time of the accident the stops were bolted on the bumpers" at the end of the tank and stood parallel Avith the tracks of the road. On the day of the accident, and after it happened, the men in the employ of the company to make repairs, changed these steps from the position of parallel Avith the rails to the position of right angles with them. One Stelhvagon, who directed this to be done, testified if was not done because the changed position Avas thought safer, and that it was not ordered by any superior officer of the company, but must have been done at the request of some one of the creAv, but 'he could not remember who it Avas. All of the crew living denied that they had made the request. The plaintiff claimed, as an inference, that Schertle had made the request.
    At the time of the accident employes of the railroad company were engaged in raising the grade of the tracks, near the' SAvitch where the accident occurred, and the ballast between the sills had not been filled up to the level of the sills.
    The plaintiff claimed that the circumstantial evidence indicated that the deceased, in attempting to get on the tender, had missed his footing, either by reason of the rugged condition of the roadbed or the insufficiency of the steps, or both, which the plaintiff alleged constituted negligence by the defendant company.
    The defendant relied on the absence of evidence to connect the accident with the causes alleged, and insisted that the condition of the track and the position of the steps did not constitute negligence, but wore matters of which the deceased was bound to take notice, and if they involved any risk it was an ordinary risk incidental to the employment of brakemen, for which the company was not liable.
    The defendant therefore requested the court to charge, inter alia: “ 9. That under all the evidence in this case, the plaintiffs cannot recover.” Ans. “This would be taking the case from you, and we decline to so instruct you. We leave the facts for your consideration.”
    The court, in the general charge, submitted the question of negligence to the jury.
    The defendant took this writ of error, assigning for error, inter alia, the answer to the ninth point and the submission of the question of negligence to the jury.

      James Ellis and James E. Gowen, for the plaintiff in error.
    While an ernployé is injured while in the discharge of his duty, he must prove that the employer, by his acts or omissions, has violated some duty imposed on him which has caused the injury complained of. The presumptions are against the servant: Parrott v. Wells, 15 Wall. 524; Weger v. Pennsylvania Railroad Co., 5 P. F. Smith 460. Where the evidence does not establish the breach of any duty by the defendant, the court should direct a verdict for the defendant: Weger v. Pennsylvania Railroad Co., supra; Howard Express Co. v. Wile, 14 Id. 201; Ryan v. Cumberland Valley Coal Co., 11 Harris 384; Lehigh Valley Coal Co., v. Jones, 5 Norris 432; Mansfield Coal & Coke Co. v. Mary McEnery et al., 10 Norris 185; Pennsylvania Railroad Co. v. Fries, 6 Norris 234; Boldt v. New York Central Railroad Co., 18 N. Y. 432; Dynen v. Leach, 26 Law Jour. Exch. 221; Waller v. Southeastern Railway Co., 32 Id. 205.

      Farquhar and Hughes, for the defendant in error.
    Direct evidence of negligence is not essential where circumstantial evidence is equally convincing. It was competent for the jury to find, from the circumstantial evidence in this case, that Schertle’s death was the result of the tank having a step on only one sido, and improperly placed, or of the road-bed being in a bad condition, or both, and that such defects constituted the negligence of the company.
   Mr. Justice Paxson

delivered the opinion of the court, May 2d 1881.

This was an action brought by the widow and minor children of George Schertle, deceased, to recover damages for injuries resulting in his death. The declaration alleges that said injuries were, occasioned by the negligence of the Philadelphia & Reading Railroad Company, defendants below. The jury having found the negligence, the cause has been removed to this court, and several errors have been assigned to the rulings of the court below. As the seventh and last assignment, if well taken, renders a discussion of the others unnecessary, we will consider it here.

By the defendant’s ninth point, the court was called upon to pass upon the sufficiency of the evidence, the point being, “ that under all the evidence in this case, the plaintiffs cannot recover.” The learned judge declined to so instruct the jury, upon the ground that it would withdraw the case from their consideration. This was the object of the point. It was not error to refuse it if there was sufficient evidence of the negligence of the defendant company to submit to the jury. • On the other hand, it is equally clear that if there was no evidence, or at most a scintilla, it was the duty of the court to withdraw the case from the jury and give a binding instruction to find for the defendant. The authorities upon this point are numerous ; it is sufficient to refer to a few of the later ones: Howard Express Co. v. Wile, 14 P. F. Smith 201; Hoag v. The Railroad Co., 4 Norris 293; Penna. Railroad Co. v. Fries, 6 Id. 234; and Mansfield Coal & Coke Co. v. McEnery, 10 Norris 185.

I have looked in vain through this record for any evidence of negligence on the part of the defendant company. There is not even a scintilla. The deceased was; at the time of the accident, and had been for years prior thereto, a brakeman in the employ of the company. On the night of the injury, which unfortunately resulted in his death, he was engaged in coupling and uncoupling the cars of a freight train. While so engaged, in some manner unexplained to the jury, he fell under the wheels of the tank or tender of the locomotive, which passed over one of his legs, producing the injury complained of. As to how he fell, or the cause of his falling, there is not a word of evidence. The theory of the plaintiffs was that his fall was occasioned either by reason of the roughtfess or inequalities of the track, or in an attempt to get on the tank ; the allegation being that the step was defective, and that he missed his footing because of such defect. It appears from the evidence that the track at the particular point where the accident' occurred, was in the course of being repaired; that it had been raised a few inches, and that the space between the ties had not been ballasted or filled in ; that as regards the step, it was not defective in its construction, but, as plaintiffs alleged, was not in the position it should have been to insure the greatest amount of safety. Yet, even as to this point, the plaintiffs’ own evidence was evenly balanced, while it was not denied that the deceased had used the step for a year without complaint to the company, and that if he had made objection to it, the rule or practice of the company required it to be changed to suit the crew operating the engine, of which the deceased was one.

Had there been evidence to show that the deceased came to his death by reason of the condition of the track or of the step, it would, notwithstanding, have been too weak and inconclusive to establish negligence on the part of the defendant company and to base a verdict for damages upon. There certainly was no duty to ballast the track for the safety of its employés, and except perhaps at a crossing, no such duty to the public. Besides the inequalities were occasioned by necessary repairs to the track, of which repairs, the deceased, as an employé of the company, must be presumed to have had knowledge.

There was not, however, as before stated, a particle of proof that either the track or the step had anything to do with his death. Eor aught that appeared, he may have fallen in a fit, or for some cause wholly disconnected with either. The case was submitted to the jury without evidence, and the verdict has no better foundation than a guess, or at most mere possibilities. This will not do. The practical effect of the judgment below is to take the property of the defendants and give it to the plaintiffs. This is not allowable, even in the case of a corporation.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    County of Chester versus Barber et al.
    1. County commissioners, when collecting claims due the county, have a right to employ counsel and to agree with them for reasonable compensation. But they have no power to bind the county by a contract to pay said counsel an unreasonably large contingent fee.
    2. Whether such an agreement is champertous or not, or whether the English statutes against champerty are in force in this state, not decided.
    3. A contract between attorney and client for a contingent fee, is not necessarily invalid. All that the law will do in such case is to scrutinize the transaction and see that it is fair, and that no unfair advantage has been taken either of the necessities or the ignorance of the client.
    March 22d 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Delaware county: Of January Term 1881, No. 39.
    This was an action of debt on a sealed instrument, brought by William E. Barber, Joseph Hemphill and James W. M. Newlin against the county of Chester, to recover a contingent fee of fifty per cent, on the sum of $21,398.34, being a rebate secured to Chester county from the state of Pennsylvania for taxes illegally charged to the county by the state revenue board, and - paid into the state treasury. Suit was originally brought in Chester county, and a change of venue to Delaware county was awarded on motion of the plaintiffs. The narr. declared specially on the following agreement:—

      “ Memorandum of an agreement, made this — day of March, A. D. 1877, between John Irey, David Ramsey and John McWilliams, commissioners of the county of Chester, in the state of Pennsylvania, of the first part, and William E. Barber and Joseph Hemphill, Esqs., of West Chester, in the county aforesaid, and James W. M. Uewlin, Esq., of the city of Philadelphia, of the second part.
    “ Said commissioners having retained the parties of the second part to represent Chester county upon an application, and for the proceedings to secure a rebate to said county, for the amount of taxes added by the state revenue hoard, for the years 1875, 1876 and 1877, to the return of sai'd county: It is hereby understood and agreed by the parties hereto, that the parties of the second part shall be paid a sum equal to fifty per centum of the amount which shall be finally adjudged to have been illegally charged to the said county of Chester as aforesaid, and in the event of the said suit being decided against the said county of Chester, then the parties of the second part are to make no charge for their services, and are further to relieve the parties of the first part from all costs and expenses in the premises.
    “ Witness our hands and seals, the day and year first above written.
    “ Witness:

    “ Attest:
    J. E. Hill, Clerk.”
    The plaintiffs proved that, in pursuance of the above contract, they had taken proceedings, inter alia, by application and appeal to the auditor-general, state treasurer and attorney-general, and to the Court of Common Pleas of Dauphin county, from the settlement made by the Board of Revenue Commissioners against the county of Chester for the years 1875, 1876 and 1877, the result of which was that it was finally determined that taxes had been illegally added to the return of the county by the state revenue board for those years; and a credit settlement was thereupon made between the state and Chester county, by which the latter received a credit of $21,398.34.
    David Ramsey, one of the county commissioners, testified as follows: Q. When did you first know or see of the matter contained in that agreement ? (Objected to.) A. I can’t remember dates; it was some time before there was any article. Q. From whom ? A. Mr. Barber. Q. Where did you get the information ? A. From our counsel. Q. Who w-as he ? A. Mr. Barber. Q. What was said by him the first time it- was mentioned before the agreement was written ? A. He made the proposition, as near as I can remember, what ho and Mr. Hemphill and Mr. Newlin would do, and how they had agreed with other counties. Q. In order to test the matter ? A. Yes; they said it should not cost the county anything, and if they gained it, they would get their percentage. Q. How much ? A. Fifty per cent. Q. Anything else ? A. The understanding was that as the county got credit, and was credited with the money, they were to get their fee. Q. If the county got credit for the money they would get their fee? A. Yes.
    John McWilliams, another of the commissioners, testified: Q. What did you know about the matter contained in that agreement when you executed it ? A. I knew' they made this proposition 'to undertake to get a rebate. Q. Who made these representations to you and came to you to sign the paper? A. Mr. Barber came to us and asked us to sign the paper. Q. Was Mr. Barber your counsel ? A. Yes. Q. Had you any other ? A. No other at that time. Q. Did Mr. Barber advise you to sign that paper? A. He advised us to go into it, I think, and said that it was for the benefit of the county. Q. State whether or not you went into that agreement, and signed that paper, on the advice of Mr. Barber ? A. I think the probability is we would not have signed it without his advice; he advised us to go into it as it was for the benefit of the county. Q. Did you have the explanation of any one else ? A. Mr. Hemphill. Q. Any one else ? A. I don’t know as we had; they said other counties had gone into this. Q. Did Mr. Barber say who represented the other counties ? A. He said Mr. Newlin had a number of them. Q. Did he state the amount they paid as fees ? A. I don’t know' that; I am not sure. Q. How came you to fix on the fifty per cent. ? A. I was under the impression that was the proposition they made themselves. * * * Q. Did you stipulate for any terms in that agreement ? A. I don’t know that we did particularly. Q. Do you remember how it got into the agreement that these gentlemen were to save the county harmless, that is, in case they failed ? A. My recollection of that is that that was a proposition of their own.

      The defendant presented the following points:
    1. The alleged contract between the plaintiffs and defendant, put in evidence in this case, providing that they should receive one-half part of the results of their efforts, is against the policy of the law, and is incapable of enforcement by action. The jury is therefore instructed to disregard it. Ans. “ The contract, if fair and'free from fraud, is not against the policy of the law, and, if the plaintiffs have faithfully performed their part, the defendant must keep the other part.”
    2. There is no evidence in this cause which entitles the plaintiffs to anything more than a just and reasonable compensation for the professional services rendered by them to the defendant. Ans. “ The plaintiffs are entitled to a verdict for the sum stipulated to be paid by the written agreement, provided the jury find that there was no fraud, false representation, or overreaching on' the part of the plaintiffs in the making of the agreement. If the jury find that the agreement was fairly made, and that it is free from any taint of fraud, then the ‘•just and reasonable sum’ to which the plaintiffs are entitled, is the amount named in the agreement, with interest thereon.”
    3. Inasmuch as Mr. Barber, one of the plaintiffs, was at the time of the making of the alleged contract, counsel for the defendant, and this fact was within the knowledge of the other plaintiffs, no recovery can be had upon the contract in question. Ans. “If the jury find that Mr. Barber actually took advantage of the commissioners, and caused them by reason of his influence with them as their counsel, to enter into an unreasonable agreement, and that the agreement would not have been signed except through his counsel and advice, for.his own benefit, then the plaintiff cannot recover.”
    4. Inasmuch as Mr. Barber, one of the plaintiffs, was at the time of the making of the alleged contract, counsel for the defendant, he cannot recover in the present action. Ans. “ To this point I give the same answer as that given to the third point.”
    5. As this is a joint action, and as Mr. Barber is not entitled to recover, the verdict must be for the defendant. Ans. “ I do not say that Mr. Barber is not entitled to recover; as before stated, unless the jury find some fraud, false representation or undue advantage on his part, he is entitled to recover the sum agreed upon. But if the jury should find that he is not entitled because of fraud or deception practiced by him, or because he has improperly exerted his influence as attorney for the commissioners, then the other plaintiffs cannot recover, as they would be bound by his acts. I say to the jury that the salary of $150 a year, paid to Mr. Barber did not include his compensation for the services here claimed.”
    6. The Commissioners of Chester county had no lawful authority to contract with the plaintiff's, that the county would pay them one-half part of any abatement which they might secure, upon any claim made by the Commonwealth against said county, and the alleged contract was therefore not binding upon the defendant. Ans. “If the commissioners were not deceived, defrauded or improperly influenced, they had the right to make the contract, it apparently being for the benefit of the county.”
    7. The seal of the county to the alleged contract having been affixed after the same was signed, and the seal having been so affixed without the order of the county commissioners, and after the instrument was signed, the instrument of writing on which suit is brought is void. This being an action of debt against the county on the said sealed instrument, the action cannot be sustained, and the verdict must be for the defendant. Ans. “ There is not sufficient evidence to warrant the court in charging you that the agreement was not properly sealed. The weight of the evidence is that the forms of law were complied with, especially as the agreement read in evidence has been produced properly signed and sealed by the defendant, and comes directly from the custody of the county officers.”
    Verdict and judgment for the plaintiffs for $11,540.16. The defendant took this writ of error, assigning for error the answers to the defendant’s points as above.
    [The evidence from which the above extracts are taken was printed in an appendix to the paper books of both the plaintiff in error and defendant in error. The defendants in error, however, in their paper book, protested that none of the evidence was properly before this court, because it was not contained in the bill of exceptions which was not settled and sealed by the judge who tried the cause until more than six months after the trial, and then against the protest of the defendants in error.]

      Wayne MacVeagh (with whom was H. T. Fairlamb), for the plaintiff in error.
    As to the state of the record. The declaration sets out the agreement in liceo verba. The points presented by us, with the answers thereto, and the full charge of the judge as excepted to wore filed of record, and they have been assigned for error. This is expressly authorized by the Act of March 24th 1877, Purd. Dig. 2158, pl. 4, 5. So that even if the testimony be rejected, the questions raised in the court below are properly here on their merits for review.
    Can attorneys at law, one of whom is the general counsel of a public body, bargain with the officials of such public body by entering into a speculative contract for the joint recovery in equal shares of public moneys, at the sole cost of the attorneys in case of failure to recover ? Can county commissioners make such a bargain ? Here was a sum of over $20,000 in the state treasury, which belonged either there or in the treasury of Chester county. It appears that the county was ignorant of any right to claim it. These lawyers suggested the claim ; offered to contest it; to protect the county from costs; and, to divide the profits equally. This is champerty, pure and simple. We do not ask this court to adhere to the strictness of the English law on the subject of contingent fees, but we do insist that an equal partnership between attorneys and municipal corporations in speculative litigation is unlawful in Pennsylvania. It is against the policy of the law, and against the traditions in Pennsylvania, that lawyers are at liberty to seek clients, and in conjunction with their standing counsel make a purchase, in consideration of professional services, of the clients’ right to sue, by entering into a written contract for the equal division of possible gains from speculative litigation to be conducted at the attorney’s expense. This is not the case of a reasonable contingent fee stipulated for by a client who has rights, but has no means to pursue them. Contingent fees, within a limit where they are compensation and not partnership, are allowed in Pennsylvania as against third persons, but lawyers may not be at once counsellors and part owners in the subject of litigation. Parties may be heard in their own cause, and when lawyers plead their own cause the court should know that they speak as litigants, and not as counsel for clients who have disappeared as principals. Especially is it contrary to the policy of the law, that such a bargain should be enforceable when made with public commissioners, trustees, who have, in violation of their trust, bargained away public moneys. In the words -of Sir Samuel Romilly, “ Whatever enables a lawyer to ■ take advantage of his client, thereby disables him from so doing.”

      David W. Sellers and W. B. Waddell, for the defendants in error.
    The record, as brought into this court, presents nothing for review. The testimony, including the contract in suit, is not a part of the bill of exceptions, and the bill was not presented to the judge and settled in accordance with the rules of the court below, nor until more than six months after the trial. It was then sealed against' our protest. The rules in regard to the settlement of bills of exceptions are for the benefit of defendants in error, and cannot' be disregarded against their protest: Kirkpatrick v. Kirkpatrick, 13 Wright 122.
    As to the merits. No fraud, false representation or deception in making the agreement was shown, and the jury have found there was none. The contract was within the power of the county commissioners to make. The commissioners are the representatives of the county, and it is through them that its corporate powers are exercised. They manage its financial affairs and make all contracts respecting its property and its interests. Their powers and duties are not limited by statute, but in the exercise of these powers and performance of these duties they have a wide latitude of discretion. Whatever, therefore, in the exercise of their discretion, would seem to he necessary for the financial welfare of the county they have full power and authority to do in its behalf, and whatever an individual could lawfully do touching his own business, the county commissioners could lawfully do touching the business of the county: Cooper & Grove v. Lampeter Township, 8 Watts 125; Vankirk v. Clark & Graham, 16 S. & R. 286; Schuylkill and Dauphin Improvement Co. v. McCreary, 8 P. F. Smith 304; Hunter v. Albright, 5 W. & S. 423; Hamilton v. Lycoming Mutual Ins. Co., 5 Barr 339; Schwamble v. Sheriff, 10 Harris 18; County of Allegheny v. Western Pennsylvania Hospital, 12 Wright 123; Jefferson County v. Slagle, 16 P. F. Smith 202. The commissioners having power to make the contract, and having a knowledge of all the circumstances of the case, were the judges whether the contract was for the interest of the county, and whether the compensation to the attorneys was inordinate. The commissioners having acted according to their discretion, in the absence of fraud, the county cannot now avoid their contract by alleging that the compensation was excessive. At the time the contract was entered into recovery seemed hopeless, and fifty per cent, was not unreasonable. A similar percentage was allowed in Strohecker v. Hoffman, 7 Harris 227, wherein Woodward, J., in delivering the opinion of the court said: “Agreements fairly made between counsel and clients are as obligatory as between other parties; and when a desperate claim has been successfully asserted by counsel, on the faith of an agreement that one-half of the recovery shall reward his skill and diligence, it is an ungracious plea to urge that the agreement was without consideration and void.” See also, McFarland’s Estate, 4 Barr 149; Porter v. Parmly, 39 N. Y. (Superior Court) 219; Haight v. Moore, 37 Id. 161; Ex parte Plitt, 2 Wallace, Jr., 453; Trist v. Child, 21 Wallace 441; Wylie v. Coxe, 15 Howard 415; Wright v. Tebbitts, 1 Otto 252; Stanton et al. v. Embrey, Adm’r, 3 Id. 556, 557; McPherson v. Cox, 6 Id. 404.
    It is contended that Mr. Barber’s position as general counsel for the county, precluded him from entering into this contract. It is true that ho was the general solicitor of the county, and that he received an annual salary, for counsel and advice, of the small sum of $150. This was not intended to compensate him for services as an advocate or for special service in cases of exceptional difficulty. The jury found that he did not use his influence with the commissioners as their counsel, to overreach them by inducing them to enter into an unreasonable agreement. And in the absence of fraud, there is no reason, in public policy, why a contract to pay him, in connection with other attorneys, an additional compensation for exceptional services, should not be sustained.

      The English statutes against champerty and maintenance are not in force in Pennsylvania. The case of Thallhimer v. Blinkerhoff, 15 Am. Decisions 320, is very full as to the law on this subject. The editor says : “ In those states, of course, in which the doctrine of maintenance or champerty has not been adopted, there is nothing contrary to law, morals or public policy in a contract by an attorney to recover land or other property for an interest in it, even though he also agree to pay expenses.” Judge Ellis Lewis, in his abridgment of the criminal law of the United States, in treating of maintenance, champerty and barratry, says: “In Pennsylvania, the English statutes against maintenance, are not in force. * * * Contingent fees to counsel are of frequent occurrence. Many of the most emienent and upright gentlemen of the bar have felt no repugnance to this method of compensation. It has been practised without the slightest censure by gentlemen who have risen to the highest legislative and judicial stations in the Commonwealth, and who have been' distinguished ornaments of the profession.” We insist, equally with the eloquent counsel-on the other side, on propriety of dealing between attorneys and their clients, but we do not, like him, permit zeal for a high standard of professional ethics, to confuse the distinction between an overreaching or unconscionable bargain and a fair contract, voluntarily made between intelligent men, with full knowledge of all the circumstances.
   Mr. Justice Paxson

delivered the opinion of the court May 2d 1881.

This was an action of debt brought in the court below against the county of Chester by three members of the bar, two of whom reside in said county and the other in the city of Philadelphia. The action was founded upon an agreement under seal, properly executed by the three plaintiffs and the three gentlemen who were at the time the commissioners of said county. The seal of the county is affixed and attested by the clerk of said commissioners. The agreement provides that the commissioners have retained the plaintiffs to represent Chester county in proceedings to secure a rebate to the county from the state for the amount of taxes added by the state revenue board for the years 1875, 1876 and 1877, and a return thereof to the county; that the attorneys should be paid for their services fifty per cent, of the amount which should be recovered or allowed to the county on settlement, and, if unsuccessful, no charge was to be made for services, and the county was to be relieved from all costs and expenses in the premises.

In pursuance of this agreement, the plaintiffs entered upon their employment, and succeeded in obtaining a credit from the state in favor of the county of the sum of $21,398.34. They then brought suit upon the said agreement for their fees, and recovered a verdict in the court below for §11,540.16.

It is proper to state that one of the plaintiff's was the regular solicitor of the county commissioners at the time the agreement was made.

The whole case turns upon the single question of the power of the commissioners to bind the county by such an agreement.

The power of counsel to contract with their clients for contingent fees is not necessarily involved, and we shall not therefore discuss the legality or the ethics of such transactions. Nor need we stop to consider whether the agreement as set out in the narr. is champertous, nor whether the English statutes in regard to this offence are in force in this state.

We rest our decision upon the broad ground that the commissioners had no power to bind the county by such a contract; that it was against public policy, and therefore null and void. The learning and industry of the plaintiffs have failed to call our attention to any case which sustains such a contract, nor have I been able to find one. Wylie v. Coxe, 15 How. 415; Trist v. Child, 21 Wall. 441; Wright v. Tebbitts, 1 Otto 252; Stanton v. Embrey, 3 Id. 556, and McPherson v. Cox, 6 Id. 404, are not in point. It is true these cases rule that a contract for a contingent fee in the prosecution of a claim against the government, when fairly made, may be enforced. They are all cases, however, in which the contract was made with a private claimant. That an attorney may make any contract he sees proper with his client in regard to his compensation, whore the client is a private citizen, and acting in his own behalf and with reference to his own property, is not denied. All that the law will do in such case is to scrutinize the transaction and see that it is fair and that no unconscionable advantage has been taken either of the necessities or the ignorance of the client.

How stand the facts here ? There was a large'fund in the treasury of the state, which belonged either to the latter or to the county of Chester. In either event, it was public money, and was not the property of the county commissioners. It was their right and their duty to collect the same, if possible, and place it in the county treasury, or to obtain a proper credit therefor, which is practically the same thing. It was strictly in the line of their duty to employ competent professional assistance for such purpose. Having an experienced attorney as their standing counsel, the necessity of employing two others, one of them out of the county, does not clearly appear. Conceding such necessity, however, to have existed, the commissioners could not bind the county for more than a reasonable compensation. What is a reasonable compensation under such circumstances is perhaps a question for a jury. We will not pass upon it further than to say that a charge of one-half for recovering so large a sum in the hands of a solvent debtor cannot be regarded as reasonable upon any principle which should govern professional conduct.

These commissioners were acting in a fiduciary character. They were but trustees of the money, w'hen received, for the use of the county. When therefore they contracted to give one-half of it' to the plaintiffs for their services, they exceeded their power. They were giving what did not belong to them. As well might a trustee contract to give away one-half of the trust estate as compensation to counsel for services in connection therewith. And if he majr give away one-half, why not thr-ee-fourths or even a greater proportion ? Can it be doubted that a court of equity would strike down such a contract as improvident and a legal fraud ?

We are not unmindful of Cooper v. Lampeter Township, 8 Watts 125; Vankirk v. Clark, 16 S. & R. 286; Hunter v. Albright, 5 W. & S. 423; Schwamble v. The Sheriff, 11 Harris 18; County of Allegheny v. Western Hospital, 12 Wright 123; Schuylkill & Dauphin Improvement Co. v. McCreary, 8 P. F. Smith 304, and cognate cases, in which it is held that county commissioners are clothed with the corporate powers of their respective counties and may contract therefor. This principle is not denied where commissioners act in the line of their duty and within the scope of their powers. They exceed both when they attempt to give away the property of the county.

This ruling does not deny the plaintiffs all compensation. Whether the plaintiff Barber can recover anything will depend upon the terms of his previous engagement as solicitor to the commissioners. The other plaintiffs are entitled to recover a fair compensation, nothing more. But there can be no recovery upon this agreement, for it is clearly ultra vires. It is set out in hcec verba in the narr., and being thus upon the record, we are enabled to reach the merits of the case, notwithstanding the defective character of the bill of exceptions.

The judgment is reversed, and a venire faeias de novo awarded.

Justices Mercur, Gordon and Green dissented.


author: Mr. Justice Mercur

text:
    Wagenseller versus Simmers.
    1. In an action for breach of promise of marriage, evidence of such conduct and behavior as are customary between persons under contract of marriage, is admissible to prove the existence of such contract.
    2. A contract to marry without specification of time, is a contract to marry within a reasonable time. In determining what is a reasonable time, the age of the parties, their pecuniary ability and in general the circumstances of the particular case are to be taken into account.
    3. A refusal to fulfil a promise of marriage may be inferred from a wilful and persistent neglect of the person with whom the contract has been entered into, or from any other conduct calculated publicly to indicate an abandonment of all intimate relations with her.
    4. Where the defendant’s conduct is such as has just been described, it is not incumbent upon the plaintiff to tender performance of her part of the contract before bringing suit.
    5. Acts on the part of plaintiff, in an action for breach of promise of marriage, which did not amount to a waiver of the right of action, narrated and commented upon.
    March 22d 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Chester county: Of January Term 1881, No. 187.
    This was an action on the case for breach of promise of marriage. The narr. averred that in consideration that the plaintiff had promised to marry the defendant, the defendant had promised to marry the plaintiff, and that the plaintiff had refused to comply with his promise within a reasonable time, although requested so to do by the defendant, who was ready and willing, &c. Plea, not guilty.
    Upon the trial, before Futhey, P. J., the defendant presented, inter alia, the following points :—
    5. That to support the action of a breach of promise of marriage, if the defendant has not married another (in this case he has not), the plaintiff mnst show that she offered to marry the defendant, and he refused. If she does not so show, the verdict must be for the defendant. Ans. “ This point is not affirmed. If the evidence satisfies the jury that the defendant broke this engagement of marriage, and that fact is shown, either by the words or the acts of the defendant, it is not necessary that the plaintiff should have made an offer to marry the defendant before bringing suit.”
    6. If no time is fixed and agreed upon for the performance of the contract, and no request is made by the plaintiff upon the defendant, the defendant is entitled to your verdict. Ans. “ If no time is fixed for the performance of the marriage ceremony, if an agreement of marriage took place, the law presumes that it is to take place in a reasonable time, and, as I have said, it was not necessary for the plaintiff to make any request, if the defendant, by his words or acts, dispenses with the necessity for making the request.”
    7. That the plaintiff, in order to support her action for breach of promise, must show conclusively and .beyond doubt, that she made a demand upon the defendant to marry her, and he expressly refused. If she has not done so, the verdict must be for the defendant. Ans. “ This point is not affirmed, and in further answer to it, I refer you to what I have previously said upon the same subject.”
    The court had previously said as follows : “ I say to you that, if the defendant, Mr. Wagenseller, either by words or acts, declared the contract at an end, it was not necessary for Miss Simmers to make a formal offer on her part before bringing suit, and, therefore, as the defendant denied that there was any contract of marriage, it was not necessary, upon her part, to ask him to perform the contract of marriage before bringing suit.” And also, “ If the evidence satisfies the jury that the defendant broke this engagement of marriage, and that fact is shown either by the words or the acts of the defendant, it is not necessary that the plaintiff should have made an offer to marry the defendant before bringing suit.”
    9. If the jury do not believe that the plaintiff Avas willing and ready, and offered to marry the defendant, and no time was agreed upon, the law presumes that the same would take place within a reasonable time after request, and if there has been no request, the defendant is entitled to recover. Ans. “I have already answered this point in the general charge and in my answers to the previous points.”
    10. If the plaintiff wrote the letter “ A,” which has been properly shown here, wherein she states, with other matters, that she would not have the defendant, and made other personal and offensive remarks about the defendant (such as would mortify the feelings of the defendant), the defendant is entitled to your verdict. Ans. “ This point is not affirmed.”
    11. In order to entitle the plaintiff to recover for breach of promise when the time between the cessation of the visits of the defendant to the plaintiff and the time of bringing suit has been so short as in this case — not over two months — and where the defendant has not married any other person, or from the evidence, solicited any other person to marry him, the plaintiff must prove that she demanded of the defendant the fulfilment of his contract, and that he refused to do so. Ans. “ This point is not affirmed, with the observations I have already made upon the question, as to whether this breach of contract, if there was a contract of marriage and a breach of it, was made by the defendant. If the defendant, by word or act, broke this contract, then it was not necessary for the plaintiff to prove that she demanded a fulfilment of the contract, and that he refused it.”
    The evidence in the cause was voluminous and conflicting. It included a number of letters written by the plaintiff to defendant. The defendant relied upon the following letter, which the evidence showed was written on November 30th 1879, as showing that even if there had been a promise and refusal by the defendant to marry (which he denied), the plaintiff had released him from all obligation :—
    A.
    “Jim: — I think it is a sin and disgrace, I cannot come into church without you and Newton Wynn making fun of me, to-night two weeks there was a lady, a perfect lady told me, when I came in you and Newt, began to laugh, and Newt, told you to not cry.
    “Jim, if you want to make fun of me, you must go somewhere else to do it, for no one in this neighborhood thinks anything of you. All they call you is McConkey and the Marsh Hog. Newt. Wynn is the only friend you have got, and you have to pay him for going with you. I hear that he has been talking about me over on the other side, but I don't care for him, ho told Mr. Segnor ho was not the cause of not going with mo. I suppose you think that you have got a rich one, now, but such is not the case, every one knows how rich they are. Well, if I am poor, I do not wear the-one hat for five or six years like she does, and turn it hind part before like she does. There was a person told me that Guthrie’s girls made fun of me, when I went out of church.
    “ You always promised me that you would marry me, and I have been told by dozens of people to sue you and get some of your money. I don’t want you, for 1 know that I would have a Devil’s life of it. There is people tell me that I could put you where the dogs would not bark at you, or get some of your money. As you have so much of it, I send a letter away to-day, and I am waiting for an answer from it. There is plenty of lawyers, and some a great deal smarter, too, than Newton Wynn. Jim, you think that you can worry me, hut you cannot do it. I did worry at first, but do not now ; to think you have been depriving me of other company all this time, everybody is talking about how you have been using me. Now I am going to use you as bad, as the law will allow me to do it. I would not do anything with you, but if I cannot go out without you and Guthrie’s making fun of mo. If you were poor I toould not do anything with you; so rich, so gossiping, so deceitful, so fun-making, under-handed and sneaking. If you were any kind of a gentleman, you would not act as you have. I pray night and day that you may never prosper in this world. I just pray for every hair in your head to come out. Why cotild, you not tell me that you were not coming' back, as well as to tell Nute, for I heard he was telling it all around, he told old Bill Segnor that he had to be blamed with you not going with me. I am the one that blamed him. You know that I always told you that he tried to coax you away, he knows that you have been going with me year after year, but the time will be here that you will like me more or less, but you have no mind of your own, and can be coaxed into anything by Newton Wynn. From E. B. S.”
    The material portions of the testimony are reviewed in the opinion of this court.
    Verdict for the plaintiff for $5000 damages.
    A rule was entered to show cause why a new trial should not be •granted. Before the return-day, the plaintiff released the excess over $2000, and the verdict was reduced to that amount, whereupon the rule for a new trial was discharged, and judgment entered upon the verdict for $2000.
    The defendant took this writ of error, assigning for error, inter alia, the answers to points as above given.

      Wayne MacVeagh (with whom was Joseph J. Lewis) for the plaintiff in error.
    The evidence did not show a precedent demand by the plaintiff and refusal by the defendant to marry, before bringing this action for breach of promise. On the contrary, the letter “ A” contains a refusal by the plaintiff to have the defendant. As no time is appointed for the fulfilment of the alleged contract, there can be no breach, enforceable by action, without a demand and tender of marriage by the plaintiff, and refusal, or acts equivalent to a refusal, by the defendant. There is no pretence that there was ever any actual demand or refusal. The short delay of two months between the cessation'of the defendant’s visits to the plaintiff, and the time of bringing suit, does not point to a refusal. The defendant had not incapacitated himself, by marrying another person, or soliciting another person to marry him. The evidence indicated that even if the defendant had offered to fulfil the contract, the offer would have been rejected. There was oral testimony that the plaintiff said, she did not want him, all she wanted was his money; and the letter “A” corroborates the statement.
    The law on the subject of demand and default is thus stated in Add. on Cont., sect. 1353. “ If no time is fixed and agreed upon for the'performance of the contract, it is in contemplation in law a contract to marry within a reasonable period after request, and either of the parties may call upon the other to fulfil the engagement, and, in case of default, can bring an action of damages. If the parties lie by for an unreasonable period, and do not treat the contract as a continuing contract, the engagement will be deemed to be abandoned by mutual consent.” See also Park v. Bolivar, 1 Tr. & H.

      Pract. 175, note 2; Gough v. Farr, 2 C. & P. 631; Burks v. Shain, 2 Bibb. 341; Martin v. Patton, Litt. (Ky.) 345; 2 Stark. on Ev. (7th Am. ed.) 706.

      R. E. Monaghan (P. F. Smith with him), for the defendant in error.
    In the absence of a fixed time for the performance of a contract of marriage, the law presumes it will be performed in a reasonable time. Where the defendant by his acts showed clearly that he had abandoned his contract, and by keeping away prevented a demand, a formal request is not necessary before bringing suit: 2 Hill. on Cont 118; Add. on Cont., sect. 1353; Caines v. Smith, 15 M. & W. 189; Stevenson v. Pettis, 4 W. N. C. 151; Nunan v. Bourquin, 7 Phila. R. 239. The jury found from all the evidence that there was a marriage contract, a sufficient tender or demand by the plaintiff, and breach by the defendant.
   Mr. Justice Mercur

delivered the opinion of the court, May 2d 1881.

Three grounds of defence are taken by the plaintiff in error: First. He never promised to marry ; second, he did not refuse to marry; and third, that she released him from his promise to marry. These different defences may have appeared rather inconsistent to the minds of the jurors. As he appears to have urged each with equal persistency, if they were clearly satisfied that ho did promise, they may have given less weight than they otherwise would have done to his evidence bearing on the other points. If so, he has no just cause of complaint at a result produced by his own evidence.

1. The evidence to prove the contract of marriage was most ample to submit to the jury. It consisted in part in showing that he began to visit her in March 1877. From that time until October 1879, except during a few weeks in January 1878, he visited her from once to three times a week. He took her to pic-nics and celebrations, and to and from church. He kept her private company at her house, usually remaining until twelve o’clock at night. He also took her out riding, and gave that special attention which is considered evidence of the existence of a marriage contract. She further swore that in October 1877, he expressly promised to marry her and she to marry him, that he gave her a ring in recognition of their engagement; that this was followed by his presenting her with other small articles at different times. She further testified that ho renewed his promise of marriage on Sunday evenings.

2. The evidence of his refusal to marry is not so express and direct. The question is whether his conduct and all the attending circumstances justified the jury in finding a refusal.

A contract to marry without specification of time is a contract to marry within a reasonable time. Each party has a right to a reasonable delay, but not to delay without reason or beyond reason. The age of the parties and the pecuniary ability of the roan to support a family are proper matters to consider in deciding on the reasonableness of the delay in a particular case. In this case, the woman was tAventy-three years of age Avhen the plaintiff in error first became her suitor. He was several years older. Her pecuniary means were quite limited. She Avas at service as a domestic servant. He was a well-to-do farmer, worth from $10,000 to $12,000. In view of the reasons, which usually influence persons to enter into the marriage relation, these facts had some tendency to prove her willingness to marry, and that he had no just reason for postponing it. In fact he gave no reason for postponing it during the two whole years. She testified that he passed the evening of the 4th of October 1879 in her company, remaining until after twelve o’clock; that he left, promising to call the next Sunday and take her to church. He came not. She had understood they were to be married the next Avinter. She soon heard that he was paying attention to another lady. The second Sunday passed without his coming. She then wrote to him, expressing her regret at his not keeping his promise, and her grief and pain at his neglect of her, and at his attentions to another girl, and asking his forgiveness for some remark she had previously made. To this letter he made no reply, and never visited her after the previous 4th of October. Sunday evenings thereafter.she saAV him at church in company with a young lady, and both looking at her in an insulting manner, but without speaking to her, This, abrupt abandonment of her, his continued, and persistent neglect of her, his assuming intimate relations with another lady to Avhom he paid marked attentions, his treatment of her in public, were all proper evidence from which the jury might find his refusal to marry. It was not necessary that he should say to her in express words, “I will not marry you,” nor that she should run after him and say, “I entreat you to marry me.” Marriage is a civil contract. A refusal to fulfil it may be as unmistakably manifested by conduct as by Avords. The true question Avas, Avhetber the acts and conduct of the plaintiff in error evinced an intention to be no longer bound by the contract. This has been held a correct rule in case of air agreement of sale of personal property : Freeth v. Burr, L R., 9 C. P. 208. We think this rule applies with greater' reason to a marriage contract, which should rest on mutual affection. His denial that he. had ever promised to marry her, was of itself very strong evidence of'a refusal. Coupled with his acts and persistent conduct, it fully justified the jury in finding a refusal.

3. The last position of the plaintiff in error is that she released him from his promise. This is claimed to be proved by the letter she wrote him on the 30th November 1879. It is true that letter does not express a desire to marry him, nor an existing affection for him, and she does say, “ I don’t want you.” Regard, however, must be given to the whole letter, and to the time when written, and tho previous and existing facts which led to it. Relying on his promise of marriage, she had avoided the society of other gentlemen for two whole years. Her youth was passing. She had not received any answer to her letter of 16th October. She saw him weekly in the society of another. She thought he treated her with scorn and contempt. She recognised his conduct as unequivocal evidence of his refusal to marry her. Under those circumstances, it is very natural that all the bitter and angry feelings of a woman’s nature should be aroused. She makes no pretence of a continuing affection, yet she does not indicate any intention of releasing him from his legal obligation for refusing to marry. Thus she says, “ You always promised me that you would marry me, and 1 have been told by dozens of people to sue you and got some of your money.” Again, “As you have so much of it (money), I send a letter away to-day, and I am waiting for an answer.” “ There are plenty of lawyers.” “ Now I am going to use you as bad as the law will allow me to do it.” Thus, instead of notifying him that she has released him from his marriage contract, she reminds him of the position in which he has placed himself, and of her determination to hold him responsible for his breach of contract, and to resort to the law to punish him and to recover her damages.

The whole case was well and clearly presented by the learned judge. We discover no error in tho record.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Appeal of Anna J. Cross and A. W. Gault, Guardian, etc.
    1. A resulting trust in lands must arise, if at all, at the inception of title, either through fraud in the acquisition of that title, or through the payment of the purchase-money by which it is obtained.
    2. The mere fact that the owner of land uses trust funds in the improvement thereof, will not raise for the beneficiaries of such funds a resulting trust in the land, so as to entitle them to tho proceeds thereof to the exclusion of judgment creditors subsequent to the making of the improvements.
    3. Such beneficiaries are not entitled to any equitable lien against the real estate. Such a lien is unknown to Pennsylvania jurisprudence.
    March 23d 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Cheater county: Of January Term 1881. No. 251.
    Appeal of Anna J. Cross and of A. W. Gault, guardian of Mary E. McCreary, from a decree of the said court confirming the- report of an auditor in the matter of the distribution of the assigned estate of John Y. Woodward. The facts of the case were as follows : John Y. Woodward was- appointed, in I860, guardian of Anna J. and Mary E. Cross, minors, by the Orphans’ Court of Chester county, without being required to give security. He was at that time the owner of a farm containing about 80 acres. He received from time to time, various sums of money belonging to his wards, which he mixed with his own moneys, and invested in the erection of buildings on his farm. Upon the settlement of his accounts as guardian in 1880, the auditor thereof found a balance due by him to Anna J. Cross (who had attained her majority), of $852.54 and a balance due Mary McCreary of $1269.19, including interest.
    In 1859, prior to his appointment as guardian, Woodward had confessed a judgment to Ephraim Lilley for $1050, which had been duly revived; he also gave a judgment in 1878, to one Mode, for $450, and in January 1879, he confessed a judgment to his son, John Y. Woodward, Jr., for $1750, and another to his daughter Mary, the wife of Isaac J. Taylor, for $850.
    On November 14th 1879. the said John Y. Woodward, being in failing circumstances, made an assignment of all his estate, including the farm, to Job Keech, in trust for creditors. The farm was sold by the assignee under an order of court for a sum which was insufficient to pay all the above debts. The assignee paid and received credit for the liens on the real estate which existed prior to the receipt of any of the wards’ moneys by the assignor.
    Before the auditor of the assignee’s account, it was claimed, on behalf of Anna J. Cross and Mary E. McCreary, that the balance of the fund which was produced by the sale of the farm, should be applied, in the first place, to the payment in full of the amount of the wards’ moneys which had been invested by Woodward as guardian in the improvement of the farm by the erection of buildings thereon; this on the ground, that the fund was impressed with with a trust, or equitable lien, in their favor.
    The auditor held, that the facts did not raise a resulting trust, and that the doctrine of equitable lien, in such case, does not exist in Pennsylvania. He therefore reported, that the claims of the minors must come in upon the fund without preference and only as common debts, and he awarded distribution of the balance in the hands of the assignee to John Y. Woodward, Jr., and Mary A. Taylor as judgment creditors.
    Exceptions filed to the report on behalf of Anna J. Cross and Mary E. McCreary, were dismissed by the court, and the report of the auditor confirmed, Euthey, P. J., delivering the following opinion, after stating the facts :

      “ If the real estate of Woodward had been purchased with these trust moneys, this principle [of resulting trust] would have applied with force. But is it applicable under the facts of the case ? The real estate was not thus purchased, and indisputably belonged to the, guardian in his individual right. He simply made use of the moneys of his wards in the manner above indicated. In the cases where real estate has been impressed with a trust arising from the use of trust funds, there has been fraud in obtaining the title, or payment of the purchase-money with the trust funds when the title was acquired. In such cases a resulting trust is raised, and the purchaser is made a trustee: Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Id. 158; Bickel’s Appeal, 5 Norris 204; Bispham's Equity, sect. 86; 1 Perry on Trusts, sect. 133.
    “No trust arose when Woodward became the owner of the real estate. The use of the trust moneys afterwards, in the manner indicated, did not impress the lands with a trust, or give the cestuis que trustent an interest therein which can be followed. The identity of the trust funds is lost. They cannot be traced. They were used in paying debts contracted for improvements which are so united with the land as to be incapable of ascertainment in the sense contemplated by the law. It is impossible for a chancellor to say that the purchase-money of the real estate, or any particular part of it, is the product of the trust moneys made use of by him.
    “Neither did the cestuis que trustent acquire any charge on the land by reason of the use made of their moneys. It could, at most, be but an equitable lion, and such liens have not been engrafted on our jurisprudence: Hepburn v. Snyder, 3 Barr, 72.
    “ The report of the auditor is confirmed.’
    The exceptants took this appeal, assigning for error the dismissal of their exceptions and the confirmation of the auditor’s report.

      R. Jones Monaghan, for the appellants.
    The auditor found in our favor the facts that the assignor, Woodward, received the minors’ money as their guardian, and invested it in buildings on his farm, intending it at the time as an investment for the benefit of the minors, supposing the same to be safer than an investment in bonds or stocks. The identity of the fund was clearly traced. In such case the converted property will be held in its new form liable to the rights of the cestui que trust. This principle has been applied in the distribution of an assigned estate, so as to permit the ward of an assignor to claim funds belonging to her, hut loaned by her guardian in his own name, which had been received by his assignees: Rossiter’s Appeal, 2 Barr 371. A similar rule has been applied in Marshall v. Hoff, 1 Watts 440; Robb’s Appeal, 5 Wright 48; Sadler’s Appeal, 6 Norris 158; Farmers’ & Mechanics’ Bank v. King, 7 P. F. Smith 205; Harrisburg Bank v. Tyler, 3 W. & S. 378; Sheetz v. Marks, 2 Pearson’s Decis. 302. The resulting trust' which we claim is not against the land, but against tho proceeds of the land, into which it has been reconverted. Even if in strictness there is no technical resulting trust, we have an equitable charge or lien on the fund for our trust moneys which have been traced into it: 2 Perry on Trusts, sect. 837; 2 Story’s Eq. Jur., sect. 1265; Bispham’s Eq., sect. 86; Wallace v. Duffield, 2 S. & R. 528, per Gibson, J.

      W. B. Waddell and A. P. Reid, for the appellees.
    No resulting trust can arise except for fraud in obtaining title, or from the payment of purchase-money when the title is acquired: Barnet v. Dougherty, 8 Casey 371; Rogers v. Murray, 3 Paige 390-398; Botsford v. Burr, 2 Johns. Ch. 405, 414-415; Nixon’s Appeal, 13 P. F. Smith 279; Bickel's Appeal, 5 Norris 204. The English doctrine of equitable lien has never been engrafted upon our jurisprudence: Hepburn v. Snyder, 3 Barr 72.
   Mr. Justice Gordon

delivered the opinion of the court, May 2d 1881.

The money in court for distribution was raised from the sale of the real estate of John Y. Woodward, which he had previously assigned for the benefit of his creditors. This fund was claimed by judgment-creditors to whom it was awarded by the court below ; it was also claimed by the appellants, for whom Woodward had been appointed guardian sometime in the year 1865. Their claim upon the fund arises in this manner: the account of Woodward as guardian was settled in the Orphans’ Court on the 28th June 1880, and he was found to be indebted to the estate of the minors in the sum of $1269.19, which sum he was unable to pay. Furthermore, the auditor has found that Woodward used this money of his,wards in the improvement of the real estate from which the fund for distribution was raised. The claim now put forward by the appellants is, that as Woodward used these trust-moneys belonging to them, in the improvement of the land which produced the money in controversy, the land itself, and hence the fund raised from it, was and is impressed with that trust, and that it ought in the first place to be used in the liquidation of their claim. Clearly, if the premise thus stated be correct, the conclusion follows as of course,for it is too well séttled for discussion, that the law will follow the trust fund through any number of transmutations if it can be recognised clearly in those transmutations. But the auditor and the court below thought that this money of the appellants was not so impressed upon the Woodward lands ; it certainly was not used in the purchase of those lands. Hence, there was no resulting trust in favor of the appellants, for a resulting trust in lands must arise, if at all, at the inception of title, either through fraud.in the acquisition of that title, .or through the payment of the purchase-money by which it is obtained : Barnet v. Dougherty, 8 Casey 371. As neither of these things happened in this case, the claim of the appellants cannot be sustained on the ground of such a trust. As, therefore, the money of these minors was not used in the acquisition of the title, it cannot be pretended that they have any direct interest in the lands covered by it. Neither, then, as owners or part owners, legal or equitable, have they a standing to claim the fund in controversy, or any part of it. If, then, the appellants had no such interest in the lands as to give them a claim upon the fund in court, by what right do they seek to be preferred to judgment-creditors ?

There is no doubt that their money went to improve the lands of Woodward, and hence, may have given them a value they would not otherwise have had, but as we have seen, that did not give them a right in the title by which those premises were held, and they cannot on this ground successfully claim the fund in controversy.

But it is said, the money of these beneficiaries has been used to improve this property, and that they ought, therefore, to have a lien upon it to the extent of the moneys so expended. But what kind of a lien? Not a statutory one, for the Act of 1832, which would have given them a lien, was not pursued. A lien arising from the equitable circumstances of the case ? But such a lien is unknown to Pennsylvania jurisprudence; it has not been as yet engrafted upon our legal system, and it is to bo hoped never will be: Hepburn v. Snyder, 8 Barr 72. This is, no doubt, a hard ease, hut were we to establish the doctrine of equitable liens for the purpose of meeting this hard ease, it would bo like the letting out of water, disaster and confusion would be the result. In vain' would the unfortunate judgmejit-creditor depend upon the dockets and records provided for his protection. Debts that he thought secure would be swept away by the insidious operation of secret equitable liens. With the utmost confidence might he bid in a tract of land to cover his judgment, only to find in the end that he had involved himself, and that perhaps hopelessly, for the benefit of some one else. Nor would a mortgagee be in a much better situation, for though he is in a bettor position than a judgment-creditor, in that he is partially protected by the recording acts, yot he would always be exposed to the danger of having sprung upon him proof of notice of some hidden lien for which he was wholly unprepared. How easily such notice can be proved, since the Act of 1869, we all understand.

We think, therefore, it is better for us to adhere to the old paths, with which we are well acquainted, rather than to try new ones which may lead us to unexpected disaster.

The judgment of the court below was right, and its opinion is so thoroughly logical and well considered that we do not profess to have anything of value to add to it except our approval.

Decree affirmed at the costs of the appellants.

Sharswood, C. J., dissented.


text:
    Coatesville Gas Co. versus County of Chester.
    1. The public works of a corporation used as such, with their necessary appurtenances, are exempt from taxation as real estate.
    2. A stock company incorporated for the manufacture of gas, owned certain real estate and fixtures necessary for carrying on its business. The revenues of the company exceeded its expenses; dividends were paid to its stockholders; the said real estate constituted part of its capital stock; the shares of said stock held by individuals were liable to pay, and did pay taxes for state and county purposes. Held, that the lot, buildings and fixtures belonging to the company, were exempt from taxation as real estate.
    3. Chadwick v. Magines, 8 W. N. C. 451, distinguished.
    4. Art. IX., sects. 1 and 2, of the present Constitution, did not execute themselves so as to repeal any existing laws providing for the assessment and collection of taxes; they merely imposed restrictions on future legislation when it should he enacted.
    5. The Act of May 14th 1874, Pamph. L. 158, was intended to define what shall be exempt from taxation, and not to provide a method of taxation; no intent can be inferred from it to subject real estate such as that concerning which the question was raised in the present ease, to taxation as such.
    March 23d 1881.
    Before Sharswood, C. J., Mercur, Gerdon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Chester county: Of January Term 1881. No. 252.
    Amicable action by the county of Chester against the Coatesville Gas Company. The following case stated was submitted for the judgment of the court:
    “ It is hereby agreed that an amicable action be entered with like effect as if the defendant had appeared to a summons, that the ease he deemed to be at issue as if a declaration bad been filed, averring that the property hereinafter described was a legal subject of taxation, and the defendant had filed a plea denying this.
    “ It is further agreed that the following facts' be submitted to the court as a case stated, with like effect as if found by the special verdict of a jury:
    “ The defendant is a corporation chartered by special Act of Assembly in 1868, ‘with the right and authority to supply the borough of Coatesville and its vicinity with gas light.’ By its charter, which is agreed to be a part of this case stated, it is declaied to be managed, subject and entitled under the general Act of Assembly of 1857, relating to gas companies, and its supplements.
    “ Among other property, the defendant owns a lot of land .in the borough of Coatesville, on which are erected a brick building, containing its furnaces, retorts and machinery for manufacturing gas, and its reservoir for retaining and distributing the gas through pipes along the streets through the borough of Coatesville.
    “ It is agreed that this lot and improvements are used only for the manufacturing and supplying of gas according to the defendant’s corporate powers, and that they are necessary and indispensable therefor.
    “ It is further agreed that the defendant is a stock company, whose revenues exceeds its expenses, declaring dividends to its stockholders; and that the lot aforesaid with the improvements thereon are a part of the capital stock of the corporation defendant, and are wholly included in the same, and as such pay the usual state tax to the Commonwealth. The stock of the corporation defendant is owned by a considerable number of individuals who are liable to and pay tax thereon to the state, and to the county plaintiif.
    “ It is also agreed that the private statute of April 8th 1859, Pamph. L. 426, in regard to the West Chester Gas Co., be considered as a part of this case stated.
    “The lot of ground with the improvements thereon have been assessed as the real estate of the defendant, and a county tax of $19.20 levied on the same, which the defendant refuses to pay.
    “ If the court shall be of the opinion that the property so assessed is legally subject to such tax, then judgment to be entered for the plaintiff for said sum of $19.20; otherwise, judgment to be entered for the defendant, with full costs in either case, and reserving the right to either party to have review of said judgment in the Supreme Court.”
    After argument the court entered judgment for the plaintiff on the case stated, Futhey, P. J., delivering the following opinion:
    “ Under the decision of the Supreme Court in the case of the West Chester Gas Co. v. The County of Chester, 6 Casey 232, the real estate in question would not be taxable.
    “ The question presents itself, however, whether it is not made taxable by the provisions of the 1st and 2d sections of the 9th article of the Constitution of 1874, and the Act of Assembly of the 14th of May 1.874, passed to carry out these provisions. The first section referred to provides that all taxes shall he uniform upon the same class of subjects within the territorial limits of the authority levying the same, and shall be levied and collected under general laws, and then declares what property the General Assembly may, by general laws, exempt from taxation ; and the 2d section declares that all laws exempting property from taxation other than that thus enumerated shall be void. The Act of Assembly enumerates what property shall be exempt, and then provides ‘ that all property, whether real or personal, other than that which is in actual use and occupation for the purposes aforesaid, and from which any income or reyenue is derived shall be subject to taxation, except when exempted by law for state purposes, and nothing herein contained shall exempt the same therefrom.’
    “ The property in question is not embraced in either of the classes specified as exempt, and without more appearing is, under the terms of the proviso, subject to taxation.
    “ It is argued, however, that the principle settled in the series of cases commencing with the Lehigh Coal & Navigation Co. v. Northampton County, 8 W. & S. 334, on the subject of taxation of such property, still governs, notwithstanding the provisions of the Constitution and Act of 1874, and is not affected thereby ; and, further, that inasmuch as the stock of the defendant is taxable, this real estate, which forms part of the stock, is not taxable.
    “ An examination of the line of authorities referred to, shows that the lands and property belonging to corporations held to be exempt from the payment of taxes, was not because they were purchased with its capital stock on which taxes were assessable. In every case there was something in the nature of the corporation, or the character of its business, which entered into the decision. In some of the cases certain property was declared exempt from, and other property subject to, taxation, although both were purchased with the capital stock. The principle seems to have been, that property, necessary for the enjoyment of the franchise, was declared not taxable, and that not necessary but simply convenient, taxable. Thus in the Lackawanna Iron & Coal Co. v. The County of Luzerne, 6 Wright 424, it was held that the public works of a corporation used as such, with their necessary appurtenances, were exempt from taxationbut that houses, lands and other property held for its private purposes, even although purchased with its capital stock, were .not exempt. See also Railroad v. Berks County, 6 Barr 70; Wayne County v. The Canal Co., 3 Harris 351; Carbon Iron Co. v. Carbon County, 3 Wright 251.
    ■ “ The reason of the decisions was that the legislature did not intend to tax the works necessary to carry on the operations of the corporations — that they were not subject to, or embraced within, the operation of the tax laws; and not because they formed part of the capital stock, for that, as is apparent, would have rendered all the real estate, in which they invested their capital, exempt; and the decisions, as we have seen, draw a distinction between that necessary and that simply convenient, holding the latter subject to taxation and the former not. The property in question is not, therefore, under the decisions, exempt because it was purchased, and the improvements thereon made, with a portion of the stock of the company.
    “ The question then recurs, what is the effect of the Act of Assembly of 1874, passed to carry out the provisions of the Constitution ? We are of the opinion that thereby all property, not specifically enumerated as exempt, and from which any income or revenue is derived, is made taxable for county purposes and embraced within the operations of the tax laws. It required no additional legislation to make it so. If not taxable, therefore, the act removed the barrier, and placed it in the same category as other property, and taxable under the general laws in operation. Such appears to us to be the plain and obvious intent of the act.
    “ If the effect of this is to subject certain property to double taxation because of the different shapes in which it is presented to the assessor, it is no more than has been upheld by the decisions referred to, with regard to real estate forming part of the capital stock of corporations, and yet declared taxable because not necessary to the operations of the corporation, while the stock thus invested was liable to taxation also. If this result should seem to be inequitable, the legislative power must correct the evil.
    “We cannot say that this real estate, because purchased and improved with the stock of the company, should not be taxed, any more than we can say the stock itself should not bo taxed because invested in this real estate.
    “ The question raised in this case is discussed in one of its aspects by the Supreme Court in the case of Chadwick v. Magines, 8 W. N. C. 451, and we simply carry to its legitimate conclusion the principles of that decision.
    “Let judgment be entered for the plaintiff on the case stated for $19.20 with costs.”
    The defendant thereupon took this writ of error, assigning for error the entering judgment for the plaintiff on the case stated.

      R. Jones Monaghan, for the plaintiff in error.
    It was definitely settled that prior to the new Constitution and the Act of May 14th 1874, the real estate in question was not subject to a county tax: West Chester Gas Co. v. Chester Co., 6 Casey 232; Act of April 8th 1859, Pamph. L. 426; Northampton County v. Easton Gas Co., 1 Chester Co. Ilep. 157. And it has been settled that the article of the new Constitution relating to uniform taxation did not per se change the existing law: Lehigh Iron Co. v. Lower Macungie Twp., 31 P. F. Smith 482. Nor did the Act of May 14th 1874, Pamph. L. 158, impose the tax hero claimed. That statute is entitled “An act to exempt from taxation” certain property. The proviso says that other property “ shall be subject to taxation,” í. e., that such property map ha taxed, not that it is thereby taxed. The proviso limit's and qualifies the exemptions which were the principal object of the act. The title being “to exempt,” a clause imposing a tax would be outside the title and therefore unconstitutional. Moreover, the tax would be unconstitutional on the ground that- instead of being uniform taxation, it is double taxation, for the capital stock, which is in fact this real estate, already bears its due taxation for county purposes: County of Lackawanna v. First Nat. Bank of Scranton, 9 W. N. C. 549. The case is distinguished from Chadwick v. Magines, 8 W. N. C. 451. The real estate of the water-works in that case did not constitute the capital stock of a corporation, but was owned by individuals, and paid no taxes of any kind to the state.

      H. T. Fairlamb, for defendant in error.
    The proviso to the Act of 1874 subjects to taxation all property not expressly exempt, and especially any property “ from which any income or revenue is derived.” The case stated admits that the revenues of the plaintiff in error exceed the expenses, and that dividends are declared to the stockholders. This has been decided to be a test whether the public works of corporations are exempt from taxation: Chadwick v. Magines, 8 W. N. C. 451, and see German Society v. City of Philadelphia, 4 Id. 214.
    There is no authority for the assertion that double taxation, as such, is unconstitutional. The legislature has as much power to tax twice as to tax once. Double taxation exists in many cases. Thus, the real estate of a corporation is taxable notwithstanding the corporation pays a tax on its dividends or its capital stock, or its corporate franchise: Kittanning Coal Co. v. Commonwealth, 29 P. F. Smith 100; Lehigh Iron Co. v. Lower Macungie Twp., 31 Id. 482; County of Dauphin v. Union Canal Co, 2 Pearson’s Decisions 39, approved by this court, 3 Brewst. 124. We submit that Chadwick v. Magines, supra, rules this case.
   Mr. Justice Mercur

delivered the opinion of the court, May 2d 1881.

. The plaintiff in error is a corporation chartered by special Act of Assembly in 1868, with the right and authority to supply the borough of Coatesville and its vicinity with gaslight, but to be subject to and managed under the general Act of 1857 relating to gas companies. The corporation owns a lot of ground situate in the borough of Coatesville, on which are erected a brick building containing its furnaces, retorts and machinery for manufacturing gas, and its reservoir for retaining and distributing the same through pipes along the streets of said borough. This lot and the improvements are used only for the manufacturing' and supplying of gas according to the corporate powers of the company, and they are necessary and indispensable therefor. The corporation is a stock company, and its revenues exceed its expenses, so that dividends are declared to its stockholders. The lot described, with the improvements thereon, are a part of the capital stock of the corporation, and are wholly included within the same, and as such pay the usual state tax to the Commonwealth. The stock is owned by individuals who are liable to pay and do pay taxes thereon to the state and to the county of Chester.

The claim now is to also impose a county tax on the lot as real estate of the corporation. It is conceded that prior to the Constitution of 1874 the lot was not so chargeable, under authority of West Chester Gas Co. v. The County of Chester, 6 Casey 232. It is. however, contended that it is taxable as real estate under art. IX., sects. 1 and 2 of the present Constitution and the Act of May 14th 1874, passed to give effect thereto. It was held, in Lehigh Iron Co. v. Lower Macungie Township, 31 P. P. Smith 482, and in Indiana County v. Agricultural Society, 4 Norris 357, that these provisions of the Constitution do not execute themselves so as to repeal any existing laws providing for the assessment and collection of taxes. These sections, like many others, merely impose restrictions on future legislation, when it shall thereafter be enacted: Perkins v. Slack, 5 Norris 270; Commonwealth ex rel. Chase v. Harding, 6 Id. 343.

Conceding that this property of the corporation is liable to taxation under the Act of May 14th 1874, the question is in what manner. Is the object of that act to provide a mode of taxing, or to declare it shall not be exempt from taxation ? We think the latter was its purpose. As we have already shown, this lot constitutes a part of the stock of the corporation, which already pays a tax thereon to the Commonwealth, and the owners of the stock pay taxes thereon to the county. We fail to discover anything in the act indicating an intention to impose double taxation on this lot. It is indispensably necessary to enable the corporation to execute the object or fulfil the purpose for which it was chartered. It was held, in Lehigh Coal & Nav. Co. v. Northampton County, 8 W. & S. 334, that the bed, berm-bank and tow-path of an incorporated canal were not taxable as land under the Act of 15th April 1834. Nor were the water-stations nor depots of a railroad corporation: Railroad v. Berks County, 6 Barr 70. Nor the toll-house of a canal company, so built as to be also occupied as the family residence of the collector; nor the reservoirs of the canal and the machinery for raising cars: Wayne County v. Del. & Hud. Canal Co., 3 Harris 351. Nor the works of an incorporated gas company: West Chester Gas Co. v. County of Chester, supra. Yet the Act of 1834 expressly made “ all houses, lands, lots of ground, mills and manufactories of all descriptions,” &c., liable to taxation.

The principle which appears to be recognised is that the public tvorks of a corporation, used as such with their necessary appurtenances, shall be exempt from taxation as land, but be subject to it in another form, and that a gas company so far partakes of the nature of a corporation for public purposes as to be subject to the same rule: Northampton County v. Lehigh Coal & Nav. Co., 25 P. F. Smith 461; Same v. Easton Gas Co., not reported.

It was urged that this lot is taxable as real estate of the company for county purposes under authority of Chadwick v. Magines, 8 W. N. C. 451. The facts in that case were very different from those in this case. There, the corporation was not a stock company, and paid no taxes in any form to the state under the general corporation tax laws of the Commonwealth. It was an attempt to escape all taxation. As the specific property was not of the class which the Constitution or the statute exempted from all taxation it was properly held liable. It is true, some remarks of the judge who delivered the opinion would indicate additional reasons for the judgment, yet the fact of exemption from all other taxes is made prominent. It is there said, “ surely it was never intended that such a corporation should be exempt from all taxation, while others are compelled to bear their share of the public burden.”

In the present case, the corporation does bear such a share of the public burdens as the legislature has imposed on the class of corporations to which it belongs. We think the learned judge erred in entering judgment in favor of the defendant in error.

Judgment reversed, and judgment in favor of the plaintiff in error with full costs according to the case stated.