author: Thompson, C. J. —

text:
    The Pittsburg and Connellsville Railroad Company versus The County of Allegheny.
    1. An agreement between parties having power to contract, to pay interest on a security received in payment or satisfaction of a contract, if it be part of the consideration of the contract, is binding.
    2. By Acts of Assembly a county was authorized to subscribe to the stock of a railroad company, to issue bonds with interest and deliver them to the company in payment for the stock; the company was authorized to receive them on the terms of paying, to the county or its creditors holding the bonds interest equal to the interest on the bonds. This was a premium to induce the county to subscribe, and the legislature could grant to both corporations power so to contract.
    3. Without this power, the company could not so contract. It was incorporated to build a road with means furnished by those taking shares.

      4. Special authority is necessary for a railroad company to borrow money and mortgage their franchises and property to secure it, because not incident to its charter.
    5. Contracts, engagements and acts of a corporation, not within the scope of the undertaking authorized by the charter, cannot be made by the corporation.
    6. A corporation has no power but that expressly given or necessarily flowing from powers given.
    7. Payment of interest on stock periodically out of the capital before earnings are made is within the prohibition of a charter against paying dividends out of the capital.
    8. Excess in the exercise of power by a corporation is to be redressed by the Commonwealth, and not by a private party.
    9. A railroad company was authorized to make a road between points named and to pay interest on instalments on stock until the road should be completed. Interest is not payable beyond the time the road had been completed between those points.
    10. The company were, after their act of incorporation, authorized to extend the road to otljer points. Held, that this did not authorize the payment of interest until the road should be completed to those points.
    11. Bonds with semi-annual coupons were issued to the company by a county in payment of stock, the company agreeing to pay the interest on the bonds. The county paid the interest. Held, that the company was liable for interest on the coupons.
    12. Certificates of stock under the seal of the company, containing the stipulation to pay interest, were issued to the county. In an action by the county to recover interest paid by her, held, that the Statute of Limitations did not operate.
    13. Under a judgment against the county, her stock in the company was sold by the marshal. Held, that this vendee obtained the stock only, not a right to the interest on the bonds.
    November 4th and 5th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 165, to October and November Term 1865.
    This was an action of debt brought, January 29th 1867, by The County of Allegheny against The Pittsburg and Connellsville Railroad Company.
    The plaintiff in the declaration demanded the sum of $1,000,000 which the defendants owed and detained, &c.
    The first count was that on the 29th of June 1858, in consideration that the plaintiff would subscribe for 15,000 shares of the stock of the defendants and pay $750,000 for it in bonds of the plaintiff bearing interest, payable semi-annually, and falling due in thirty years, the defendants agreed to pay to the holders of the bonds the interest as it fell -due, that the plaintiff subscribed for the 15,000 shares of stock and delivered the bonds of the plaintiff to the amount of $750,000 with interest coupons attached, payable semi-annually at the 'rate of 6 per cent, per annum, that the defendant sold the bonds to third persons and provided for the payment of the interest, but that on January 1st 1858 and since they have refused to pay the interest, and by reason of such refusal, the plaintiff became liable and has since been compelled to pay to the holders of the bonds sums of money amounting in the aggregate to $1,000,000, and plaintiff has sustained damage to the amount of $1,000,000, “by reason of which an action has accrued to the plaintiff to demand and have from the defendants the said sum of $1,000,000,” but the defendants have refused to pay; to the damage of the plaintiff $1,000,000, &c.
    The second count was, that on the same day, in consideration of a subscription by the plaintiff for 15,000 shares of the defendants’ stock, and of bonds of the plaintiff “ then and there delivered to the defendants as payment for said stock,” the defendants agreed to furnish funds and pay all interest “ semi-annually, falling due on said bonds, and agreed fully to indemnify the plaintiff against any and all sums of money falling due as interest on said obligations, and to keep the said county harmless in that regard;” that the defendants had not paid interest since July 1st 1858, and by reason thereof the plaintiff has been compelled to pay to the holders of the bonds $1,000,000, “ by reason of which said promises the plaintiff hath suffered damage to the amount of $1,000,000, and thereby an action hath accrued to the plaintiff to demand and have of and from defendant the said sum of $1,000,000,” &c. There was a count for money paid and one on an account stated.
    The defendants were incorporated ■ by an act passed April 3d 1837, and authorized to build a railroad from Pittsburg to Connellsville. By the 15th section of the Act, the directors were authorized to declare semi-annual dividends of the profits, the dividends at no time to exceed “ the net profits actually acquired by the company.” By the 6th section of an Act of April 18th 1843, the counties of Allegheny and others and any city, borough or incorporated company were authorized to subscribe to the stock of the company “ as fully as any individual could do;” and by the 7th section the company were empowered to extend their railroad beyond Connellsville to Smithfield or any other point on the waters of the Youghiogheny within the Commonwealth. By the 1st section of an Act of April 12th 1853 the cities of Pittsburg and Allegheny and the boroughs of West Newton and Connellsville were authorized to subscribe for shares, to borrow money and issues certificates of loan with interest which might be received by the company in payment of instalments on the shares on such terms as shall be agreed upon between the company and “ said corporations.” By the 2d section the company was authorized to pay to the shareholders interest at the rate of 6 per cent, per annum on all instalments paid, the interest to be charged to the cost of construction, and until a dividend should be declared all the profits and earnings of the road should be credited to the cost of construction. By the 5th section of an Act of April 18th 1853 the counties theretofore authorized to subscribe for stock might borrow money to pay for their subscriptions and the bonds to be issued with interest at 6 per cent, per annum might be received as cash by the company in payment of instalments. The 6th section authorized the company to extend their road to any point in Somerset and Bedford counties to form a connection with the Chambersburg and Allegheny Railroad or any other road that may be constructed. On the 17th of May 1853 the commissioners of Allegheny county resolved that they would subscribe on behalf of the county for 15,000 shares of the stock of the Pittsburg and Connellsville Railroad Oo. amounting to $750,000, payable in the bonds of the company 30 years after date, with interest at 6 per cent, per annum, payable semi-annually, on the following terms, amongst others: that the company issue certificates of stock as may be required by the county commissioners bearing interest for thirty years at 6 per cent, per annum, payable semi-annually at the same times and places with the interest on the bonds; that the company pledge to Allegheny county the stock of the company and all their real and personal estate for the payment of interest on the stock to be issued to the county during the thirty years, and pay the interest on the certificates to the holders of the county bonds at the same times and places with the payment of the interest on the bonds; that the company will pay to the county the excess of dividends over the interest on the bonds; that the company pay all taxes on the bonds and stock, &c. This proposition was made under the corporate seal of the county. On the 8th of June 1853, at a meeting of the stockholders of the company, the Acts of April 12th and 18th 1853 were accepted by an unanimous vote. The proposition of the county of Allegheny also was accepted on the terms accompanying it, and the president and directors were authorized to receive the subscription of the county for 15,000 shares of stock, to receive as cash the bonds of the company in payment, to issue certificates of stock to the county for its subscription “bearing interest at the rate of 6 per cent.,” the payment of the interest to be made at the same places and times as the payment of the interest on the bonds; the stockholders also pledged the stock of the company, their road and all their real and personal property for the faithful payment of the semiannual interest on the stock issued to the county, the dates of the certificates to correspond with the dates of the bonds; the president and directors were instructed to give the pledge in the certificate or in any other legal manner that might be required by the county. At a meeting of the board of directors of the company, held June 28th 1853, they approved and ratified the action of the stockholders and directed the president and treasurer to issue certificates of stock to Allegheny county in accordance with the resolutions of the stockholders.
    The certificates of stock recited the proposal of the county to subscribe for 15,000 shares of stock and to pay for them in county bonds, &c., its acceptance by the stockholders, with the pledge, &c., and the resolution of the directors; they pledged the property of the company for the performance of the conditions, and certified that the county had paid “ $50 per share in full, and is entitled to 15,000 shares of the capital stock of the Pittsburg and Connellsville Railroad Company, amounting to the sum of $750,000, the said railroad company hereby agreeing to pay interest at 6 per cent, per annum on the last aforesaid sum, for the term of thirty years from the date hereof, semi-annually on the first days of July and January, in the city of New York, by applying the same to the payment of the semi-annual interest coming due on the bonds so issued by the county aforesaid and payable the same days to the holders of the said bondswith a further stipulation that the excess of dividends over the interest should be paid to the county in accordance with the terms of the proposal. The certificate was under the seal of the company. The bonds were with coupons and in the usual form, to the company or bearer, the interest payable at the office of Winslow, Lanier & Co., New York, on the first days of January and July, and recited that they were issued under the authority of Acts of 1843 and 1853.
    The following is the form of the assignment and guaranty of the bonds of the company:
    “ Eor value received, the Pittsburg and Connellsville Railroad Company assigns the within bond to--, or bearer, and guaranties the payment of the principal and interest of the same, as within stipulated.
    By order of the Board of Directors of said Railroad Company.
    [Seal of Co.] Wm. Larimer, Jr., President.”
    Stock and bonds to the amount of $750,000 were issued by the company and the county respectively according to the proposal of the county. There was evidence that in the whole about $300,000 —interest on bonds and on coupons from January 1st 1858 to January 1st 1867, both inclusive — had been paid by the plaintiff in cash or other bonds to the holders of the original bonds — that there wrnre no net earnings from which to declare dividends, and that the road was open and running between Pittsburg and Connellsville in October 1861.
    The defendants gave evidence that in February 1861, the 15,000 shares of stock of the plaintiff were sold by the United States marshal, under a judgment recovered in the Circuit Court of the United States; they were bought for the Baltimore and Ohio Railroad Company and transferred to them on the 13th of February ; and that the defendants had commenced as early as 1856 and were now constructing under authority of different Acts of Assembly portions of the road beyond Connellsville. There was evidence also tending to show the inability of the company to pay interest; that the sale of the plaintiff’s bonds by the defendants was prevented by their repudiation of them, &c.
    The defendants submitted a great number of points, all which but one (not necessary to be noticed) were refused.
    The court (Mellon, J.) directed the jury to find in favor of the plaintiff for the full amount of all payments made by the county, whether in cash or in bonds, and whether for coupons matured before or after the marshal’s sale of stock, with interest to date of verdict.
    The verdict was for the plaintiff for $290,697.02.
    The defendants moved in arrest of judgment for the following reasons:—
    “ 1. That the action of debt does not lie for the cause of action set forth therein.

      “ 2. That the facts averred therein do not set forth a good cause of action.
    “ 3. On the whole declaration for a misjoinder of counts, — in that the first and second counts (especially the second) sound in damages, and substantially are counts in assumpsit, whereas the last two counts are in debt.”
    The motion was overruled and judgment entered on the verdict.
    The defendants took out a writ of error. The main points raised by the assignments of error, in addition to the points presented by the reasons for arrest of judgment, were the following:
    “ 1. That the testimony did not sustain the material allegations of the narr. in this, that the contract as proved varied substantially from that declared on.
    “ 2. That the contract, both as declared on and as proved, was invalid, as being without consideration, against public policy, in violation of the company’s charter, and in evasion of the Act authorizing the county’s subscription.
    “3. But even if the company’s agreement to pay interest on the stock was valid and binding, yet the marshal’s sale of the stock carried to the vendee, not only the interest accruing subsequently to such sale, but also that which had accrued and then remained unpaid.
    “ 4. But if the marshal’s sale did not carry the then accrued and unpaid interest, then such interest, being separated from its principal by the sale, would be barred by a failure to sue for it in six years.”

      H. Burgioin and J. R. Tucker (of Maryland), for plaintiff in error. —
    An agreement to pay interest on stock is a guaranty of dividends and puts the stock in the position of preferred stock: Stevens v. South Devon Railroad, 12 Eng. L. & Eq. 229. Such agreement is against public policy: Troy and Boston Railroad v. Tibbetts, 18 Barb. 307; McKeen’s Appeal, 6 Wright 484. The agreement to pay interest was without consideration; the consideration for the bonds was the stock and the right to receive dividends with the other shareholders: Angelí and Ames on Corp. 557. Part of a separable agreement may fail for want of consideration : Add. on Cont. 658. The agreement was a fraud on other shareholders and creditors: Miller v. Pitts. and Conn. Railroad, 4 Wright 239. It tends to defeat the purposes of the charter: Mining Co. v. Levy, 4 P. F. Smith 227, 7 Amer. Law Reg. 577. The sound parts of a contract may stand and the unsound be rejected: Heckert v. Fegely, 6 W. & S. 145; Frazier v. Thompson, 2 Id. 235; Gelpecke v. Dubuque, 1 Wall. 221; Irvin v. Stone, 6 Cush. 511. The marshal’s sale carried the interest to his vendee, the interest being payable to the holders of the stock. But if the interest could be separated, it was payable as soon as each payment was due, and therefore under the operation of the Statute of Limitations: Thomas v. Allen, 1 Hill 145. The narr. does not set out a contract under seal, and if the contract be under seal it should in answer to plea of the statute be replied specially: Davis v. Shoemaker, 1 Rawle 135; Webster v. Newbold, 5 Wright 493. The agreement to issue stock and receive bonds and pledge the payment of interest was closed by the company’s acceptance of the county’s proposal; it was therefore parol and could not be made a specialty by the attaching of the seal to the guaranty by the president.
    The first two counts of the narr. were to pay interest on the bonds and to indemnify the county against their payment. The defendants’ contract was to pay interest on the stock; the payment of the coupons was merely incidental. On the count for money paid there could be no recovery; the defendant having undertaken to pay the plaintiff's debt and the plaintiff having paid it himself must declare specially: Spencer v. Parry, 3 Ad. & El. 331; Chitty Conts. 592 a; Crafts v. Tritton, 8 Taunt. 365. There was a misjoinder in the counts, part being in assumpsit and part in debt: Seip v. Drach, 2 Harris 355; Brumbaugh v. Keith, 7 Casey 327. Debt will not lie for the cause of action set out in the first two counts: Long v. Long, 1 Hill 597. Debt will not lie for interest unless secured by a penalty: 2 Tr. & Hal. Pr. 16, 22; 1 Chitty Pl. 106, 113; United States v. Colt, 1 P. C. C. R. 145, 1 Ventris 198. The plaintiffs, at most, can recover only for the interest paid in money; the giving other bonds is but substituting one promise for another: Pursel v. Ellis, 5 W. & S. 525.

      M. W. AcMson and J. H. Sewell, for defendant in error.—
    The contract to pay interest on stock is valid: Angell and Ames on Corp. sect. 271; McMasters v. Reed, 1 Grant 36; James v. C. & H. Railroad, 6 Amer. Law Reg. 718; Moran v. Miami Co., 2 Black 726; City Bank v. Barnard, 1 Hall (N. Y.) 70. Conditional subscriptions to stock are valid : Erie and Waterford Plank Road Co. v. Brown, 1 Casey 156; Rhey v. The E. and S. Plank Road Co., 3 Id. 261; Philadelphia and West Chester Railroad Co. v. Hickman, 4 Id. 318; Pitts. and Conn. Railroad Co. v. Stewart, 5 Wright 54; Miller v. The Pitts. and Conn. Railroad Co., 4 Id. 237. The stockholders ■ ratified the contract: McLaughlin v. Detroit and Milwaukie Railroad, 8 Mich. 100; Stevens v. S. Devon Railway, 12 Eng. L. & Eq. 229. The company having received all the benefits of the contract by the performance by the county of her part, cannot now set up legal incapacity to make it: Chester Glass Co. v. Dewey, 16 Mass. 94. The Commonwealth only can avoid it: Gr. Gulf Bank v. Archer, 8 Smedes & M. 151.
    The party cannot now rescind: Palmer v. Lawrence, 3 Sandf. Law R. 162; Steam Nav. Co. v. Weed, 17 Barbour 398; Ins. Bank of Columbus v. United States Bank, 7 Penna. Law Journal 129; Leazure v. Hillegas, 7 S. & R. 320; Goundie v. Northampton Water Co., 7 Barr 233; Steamboat Co. v. M’Cutcheon, 1 Harris 15; Allegheny v. McClurkan, 2 Id. 81; Cleveland & Pitts. Railroad v. Speer, 6 P. F. Smith 325; Commonwealth v. Del. & Hudson Canal Co., 7 Wright 295. The Act of April 11th 1856, sect. 1, Pamph. Laws 323, cured all irregularities in the proceedings'of the directors: Commonwealth v. Pitts. & Conn. Railroad, 8 P. F. Smith 26. Under the contract, the interest was to be paid by the company to the holders of the bonds. As between the company and the county, the company was the debtor: Ponder v. Carter, 12 Ired. 242. By the marshal’s sale, the interest did not pass with the stock: Ohio v. Cleveland & Toledo Railroad Co., 6 Ohio R. 489. The purchaser of the stock obtained no rights, but such as the county had. The interest was payable to the bondholders : Mechanics’ Bk. v. N. Y. & N. H. Railroad, 13 N. Y. 599; McCready v. Runsey, 6 Duer 574; Vansands v. Middlesex Bank, 26 Conn., 144; Abbott’s Dig. of Law of Corps. 758, 759, pl. 209, 216. Stock was not liable to sale at common law; Angell & Ames on Corp., sects. 588, 589; Commonwealth v. Watmough, 6 Wharton 137 ; Act of June 16th, 1836, sect. 22, Pamph. Laws 764, Purd. 432, pl. 12; Sewall v. Lancaster Bank, 17 S. & R. 285. As to the Statute of Limitations, all the coupons were paid by the county within six years from the bringing the suit: Angell on Lim., sect. 131 et seq; Jones v. Trimble, 3 Rawle 381; Ponder v. Carter, sup. Debt was the proper form of action: 2 Tr. & H. (Fish), 16, 20; 1 Chitty’s Pl. 109, 369, 374; Home v. Temple, 3 McLean 150; Franklin Ins. Co. v. Massey, 9 Casey 221; People’s Ins. Co. v. Spenser, 3 P. F. Smith 353; Barber v. Butcher, 8 Q. B. 863 ; 1 Saund. Pl. & Ev. 898; Metcalf v. Robinson, 2 McLean 363; Gale v. O’Brien, 13 Johns. 189: Verdict cures formal defects: Robinson v. English, 10 Casey 324; Corson v. Hunt, 2 Harris 510; Ward v. Stevenson, 3 Id. 21. A count for money paid will lie for payment on request, express or implied 1 Chitty’s Pl. 350, and note 3; 1 Selwyn’s N. P. 73; Barclay v. Gooch, 2 Esp. 571; Witherby v. Mann, 11 Johns. 518; County of Beaver v. Armstrong, 8 Wright 65; Craig v. Vicksburg, 31 Miss. 216.
   The opinion of the court was delivered, January 3d 1870, by

Thompson, C. J. —

The great question in this case is, whether the plaintiff in error, the Pittsburg and Connellsville Railroad Company, is bound by its contract with the county of Allegheny, to pay interest on the bonds of the latter, received by it in payment of stock subscribed by thenounty. The contract of the company was to pay interest equal to that falling due on the bonds, for thirty years, the period of the maturity of the bonds, and this suit was brought to recover unpaid interest falling due on the 1st January 1858, and intermediately up to and including the 1st January 1867. Of course, a decision of this question will not only settle the liability of the company for interest past due, but that which is by the terms of the contract to fall due. Around this main question cluster others of minor importance, which may or may not receive notice in the discussion of the main question, but as the requirements of the investigation may demand.

Assuming, in the outset, that the form of action adopted by the plaintiff below was proper and suited to the circumstances of the case, and that the cause of action is well set out, viz.,that the plaintiff below has paid interest during the period above mentioned, on the amount of the bonds issued to, and received by, the company for its stock, viz., $750,000, and interest on overdue coupons, and that this was proved, our attention is necessarily called, in the first place, to the various grounds of defence alleged below and here. I shall not attempt a discussion seriatim, of the twenty assignments of error on the record, but follow, rather, the grounds taken in argument as affording a more compact and satisfactory presentation of the defence.

1. The first position assumed in defence by the plaintiff in error, was, that the contract to pay interest on bonds taken in payment of stock delivered, was invalid, and contrary to the provisions of the railroad company’s character; and, if not, that it was ultra vires the power of the company. In this connection it was argued with great force, that there was no consideration for the promise to pay interest, the stock of the company having been delivered in exchange for the bonds bearing interest, as authorized by Act of Assembly; that the stock was the consideration for the bonds bearing interest and the bonds for the stock; that the payment of interest on money received for stock, or bonds equivalent to cash, was an anomaly in business, an absurdity; interest being a compensation allowed to the creditor for delay of payment by the debtor. It is difficult to escape the conclusion, that where neither the one nor the other of these considerations exists as a foundation on which to base a promise to pay interest, that there would be no ground to demand it. But as between parties unlimited in power to contract, and who do contract for the payment of interest on a security received in payment or satisfaction of a contract, although it might seem an unusual and extraordinary transaction, yet, if the stipulation were part and parcel of the consideration moving towards completing the contract, I see not why it would not be binding. It would not be illegal, if the contract of which it is parcel were the consideration, and itself were legal.

The county of Allegheny had authority, as the Acts of Assembly referred to show, to subscribe to the stock of this railroad company; to issue bonds with interest coupons attached, and to deliver them to the company in payment of stock, and the company were authorized to receive them on the terms of paying interest to the county, or its creditors, holding the bonds, equal to the interest falling due from time to time, on the bonds. This was, by whatever name called, a bonus or premium to induce the county to subscribe. The right so to contract is one of power; and as both these corporations were but creatures of the legislature, it was competent and within the scope of legislative power to invest them with the necessary power to contract, if they had it not as an incident of their charter. Beyond or without this authority, I think it will hardly be insisted that the railroad company could have so contracted. It was no necessary part of the undertaking for which it was incorporated. That was to build a road, and to build it with means furnished by parties taking shares in the company. We all know that in order to borrow money and mortgage the franchises and property of the company to secure its repayment, special authority is necessary, because it is not one of the incidents of the charter. Artificial bodies are not, like natural, free to do as they please. If they were, they would soon pass beyond the control of the creating power. Contracts, engagements, and acts of a corporation, not necessarily embraced within the scope of the undertaking authorized by the act of incorporation, cannot be legally done or performed by the corporation. It has no power or authority but that which is expressly given it, or which necessarily flows from those given : Commonwealth v. The Erie & N. E. Railroad Co., 3 Casey 339, — to which might be added many other authorities. And it was within this principle that the case of McMasters v. Reed, 1 Grant’s Cases 36, was decided, holding that the Erie Canal Company might pay its contractors in its own obligations. An obvious reason why, without express authority, a contract like that we are considering could not be legally entered into by the railroad company, is, that to pay interest anterior to earnings by the company, would require a diversion of its capital from its legitimate, to a different purpose, from that for which it was ostensibly obtained, and which was the inducement for the subscriber to stock, to pay it in. In sixteen years and eight months the capital would all be sunk on this principle. In half that length of time — not an unusual period for the completion of a road the length of the Pittsburgh and Connellsville road, especially at the time when the contract under consideration was entered into, the half of the capital would be diverted to pay interest, if the plan were universal and applicable to all the stockholders. If it were not, it would be a fraud on shareholders who paid in their money, and did not receive interest. Nothing could be more completely/cio de se of a project undertaken on this policy than such a rule. In almost all improvement companies, and especially in this by the 13th section of its act of incorporation, there is an express provision against an impairment of the capital by paying dividends not earned. It is true, interest and dividends possess ordinarily dissimilar characteristics; but in a case like this it is only in name, with the distinction, perhaps, that the principles of apportionment applies to the one and not to the other: 6 Wright 479. It is not necessary, however, to multiply words to prove what is most apparent — that a semi-annual payment of interest out of capital of a company before any earnings are made is the same injury as if paid as dividends; one is as much within the prohibition as the other, both being within the same mischief. Without express authority, or beyond the limits of authority conferred, we think the company had no power to bind its stockholders, who constitute the company, to pay interest to the county of Allegheny for a period of thirty years, or any other period.

Miller v. The Pittsburg and Connellsville Railroad Company, 4 Wright 237, is no authority for a contrary doctrine, or that an ordinary charter ex visceribus suis confers the power to contract for interest, as claimed here. Woodward, C. J., in that case denounced the practice of paying interest on stock in strong terms; not denying, however, that if a company, having received stock subscriptions on such terms, were compelled to resort to law to enforce the payment, and such a condition stood in the way, it could not be disregarded. That is quite a different thing from asserting that the company without authority could bind itself for interest on stock.

The cases of Leazure v. Hillegas, 7 S. & R. 313, and Goundie v. The Northampton Water Co., 7 Barr 233, cited by defendant in error, belong to and enforce a principle alien to that in hand; they are, simply, that the acquisition of property in excess of the authority of a corporation cannot be redressed by a private party. For instance, in case of a sale and conveyance to a company— •which had no right to invest in real estate at all, or had exceeded its limits, the vendor could not recover his property against his own deed. Nobody doubts this principle. Excess in the exercise of power by a corporation is to be redressed by the Commonwealth, and not by any and every volunteer, who may choose to interfere. But this is a very different thing from the attempt to coerce a corporation to perform that which by its charter it has no authority to undertake to do, or that which is in excess of its authority; which, to that extent, is the same thing.

The answer to the argument on this portion of the case is, that the legislature did authorize this railroad company so to contract. So far as this is true, and it must be granted that it is, to a certain extent, the answer is complete. In the presence of express authority, the transaction is not to be regarded as obnoxious to public or good policy, or to be set aside because foolish and unwise. Nor is such a provision in conflict with any constitutional prohibition against the grant of such authority. Let us see to what extent the power exists in this case.

By the Act of the 18th of April 1843, the counties of Allegheny, Westmoreland, Fayette and Somerset, and any city, borough or incorporated company were authorized to subscribe to the stock of the Pittsburg and Connellsville Railroad Company as fully as individuals could do; and by an act passed just ten years thereafter, on the 18th April 1853, the several counties authorized to subscribe, were further empowered to borrow money on an issue of bonds bearing interest at the rate of six per cent, per annum; and also, with authority to the company to receive such bonds in payment of stock. On the 29th of June of the same year, pursuant to a proposition submitted by the county on the 8th of the month, the county perfected its subscription for fifteen thousand shares of the stock of the company, the latter accepting the county bonds issued pursuant to the Act of Assembly, and agreeing with the county to pay interest on the stock half yearly for thirty years, in New York, at the same time and place the coupons attached to the county bonds were payable to the holders of the bonds. The bonds and stock were accordingly issued and delivered to the respective contracting parties, and the contract completed.

Previously to this, on the 12th of April 1853, the legislature authorized the railroad company “ to pay to the shareholders entitled to receive the same, interest at the rate of six per cent, per annum, on all instalments paid by them, which interest shall be charged to the cost of construction; and continue to pay the same until the road shall he completedand that until the period for ■which a dividend shall be declared, all the profits and earnings of the road shall be credited to the cost of construction. “ Provided, that no stockholder who shall neglect to pay up instalments as called for, shall be entitled to receive interest on the same: And provided further, that the stock of said company shall not be subject to any tax in consequence of the payment of interest hereby authorized.”

The quotation of these provisions thus largely not only exhibits the authority to the company to contract for the payment of interest on stock, but shows that these are general provisions not limited to the cities and boroughs authorized to subscribe by the first and preceding section of the act, from which the quotation is made, as was insisted on by the able and learned counsel for the plaintiff in error. If the provision for paying interest applied only to subscriptions “ entitled to it” inprcesenti, as it was argued, it is, I think, certain that it did not cover the case of any municipal subscriptions; for no contract existed for any on the terms of paying interest at that time; — at least this seems to have been the case. Indeed, strictly speaking, none could have been entitled, unless it may have been certain townships in Somerset county, authorized by the Act of 31st March 1853, “ to subscribe to the stock of the road and pay in bonds, which the company was authorized to receive on the condition that the interest due thereon shall be paid by said company until the road shall be completed.” But the act was not needed for them; nor is it likely that those townships had made their subscriptions and issued their bonds in the interval of twelve days between the date of these two acts. In addition to the consideration that the provisions of the section quoted are general and apply to matters concerning the company and its stockholders, not contained in the first section, the words used are entirely susceptible of general application without regard to when the subscription should be made. The company are hereby authorized to pay to the shareholders entitled, interest,” &c. It is not that it shall pay interest to shareholders who are now entitled, or who shall become entitled, but to shareholders entitled, past, present or future. This must be the construction of these words, or they will be without any effect; certainly as to the county of Allegheny, for she did not subscribe until afterwards; yet we find that the company and county both acquiesced in its applicability; — the former by paying the interest, and the latter by giving credit for it up until the 1st of January 1858. It will hardly do to assume that they may have supposed that there was power enough in the company to make such a contract without legislative authority; for both were aware that the legislature thought differently, by the passage of the two acts referred to, authorizing the payment of interest, one of which they were specially acting under. We think the words employed act upon retrospective as well as on prospective subscriptions. So holding, we give effect to a'uniform rule on tbe subject, and escape tbe injustice of a partial one, wbicb would exclude stock not subscribed and paid for at tbe date of tbe act.

This view of tbe Act of 13th April 1853 simplifies tbe controversy. Tbe authority to pay interest is coupled with and inseparable from a period fixed in tbe act during wbicb it should continue. That time is clearly defined by tbe words “ until tbe completion of tbe road.” These words qualify and limit tbe power to contract for interest; and are of tbe same binding force as those wbicb authorize tbe company to pay interest. Tbe company could contract so far by virtue of the authority given; beyond that tbe contract is ultrd vires.

Tbe next inquiry is, what constituted tbe Pittsburg and Connellsville Railroad Company at tbe date of this enactment, and when tbe contract of subscription was entered into ? The charter must answer that question. Tbe act of incorporation is plain. Tbe company was incorporated by an act passed tbe 3d of April 1837, and authorized to build a railroad between tbe city of Pitts-burg, in Allegheny county, and Connellsville, in Fayette county. These were tbe termini of tbe road fixed by tbe act. Several supplements have since been passed, authorizing the company to extend their road east of Connellsville, and one of them authorizing its extension west of Pittsburg, but was subsequently repealed.

By the Act of tbe 18th April 1843, it was authorized to extend eastwardly to Smithfield, or to any other point on tbe waters of tbe Youghiogheny, within tbe limits of this Commonwealth; and by an Act of April 18th 1853, this privilege was enlarged by an authority to extend tbe road indefinitely to tbe counties of Somerset and Bedford, and afterwards by an Act of tbe 14th April 1863, tbe privilege was enlarged and extended to Franklin and Fulton counties. There were other projected connections, and authority granted to tbe company in respect to them, but it is not necessary more specially to notice them. In 1857 a final location of tbe road eastwardly from Connellsville to its present contemplated terminus on tbe south-eastern boundary of Bedford county, was made, and tbe survey adopted, and filed in tbe office of the Secretary of the Commonwealth.

These several grants of tbe right of extension to tbe company, were but privileges, and so denominated in The Commonwealth v. The Pittsburg and Connellsville Railroad Company, 8 P. F. Smith 26; wbicb might be accepted and acted on at the option of tbe company, and were not enforceable against the company by tbe Commonwealth, as tbe original undertaking might have been. They are noticed here, however, only as being supposed to have a bearing on tbe limitation in the Act of 12th April 1853, fixing a time during wbicb tbe company bad authority to contract for the payment of interest on stock. The limitation is very explicit, viz., “until the same shall be completed;” that is, the road mentioned in the preceding section of the act, — “ The Pittsburg and Connellsville Road.” Between #these points but little had been accomplished at the date of the act, towards completing the road. Hopes were low of getting there at all, much less of going further. There is therefore no implication in the circumstances of the road that anything was intended in the act but the completion of the original project, and certainly the words used do not point to anything else. To this, we think, the limitation was intended to apply, and not to projects which the company might or might not attempt. If we are accurate in this, the right to contract- for interest would be limited to October 1861, or at whatever time the road was finished to Connellsville. We do not speak with certainty as to the time; for it is a view that neither side discussed much; lest, perhaps, on the one hand, it might look like a concession of liability to that extent, and on the other, that it might seem an admission that a recovery to that extent might be satisfactory. This construction gives to the limitation certainty, and that we must suppose was intended by the legislature; otherwise, it would in effect be no limitation at all; the words meaning almost nothing. We are, therefore, of opinion that the contract of the company extended only to paying interest on account of the Allegheny county subscription until the road was finally completed from Pittsburg to Connellsville, and to that extent, including interest on overdue coupons, the plaintiff may recover and ought to have recovered.

The defence resists a recovery even to this extent on two grounds, viz., the Statute of Limitations and the marshal’s sale of the plaintiff’s stock.

We think neither tenable. The agreement of the company is under seal. True, it is incorporated into the special certificates of stock issued to the county. But what matters that ? Any difficulty of proving it is no objection. The fact exists, and that is enough. It is upon this contract, so evidenced, that the county has proceeded. There is no .other contract between the county and the company. It was supposed the county would retain the stock, and thus held, the evidence of the contract would always be in her possession; but because she did not choose to do so, she cannot be denied the right to show the contract by any legal evidence. We think the Statute of Limitations has not the effect contended for of defeating the plaintiff’s right of recovery to the extent indicated, as the contract is under the seal of the company.

The marshal’s sale passed the stock as stock to the purchaser, but not the right to interest. The tenor of the contract gives no countenance to more. It was special, and directly with the county, in relief of her obligation to pay interest. Tbe words of tbe stipulation are to pay interest “ semi-annually on tbe first days of July and January, in tbe city of New York, by applying tbe same to tbe semi-annual interest coming due on tbe bonds so issued by tbe county aforesaid, and payable tbe same days to tbe holders of tbe said bonds.” Argument could not aid in elucidating that wbicb is so plain as this stipulation. Tbe purchaser got by bis bid tbe stock proper; but tbe collateral contract did not pass to him. Nor bad be any power to enforce or release it: 8 Watts 361; 21 Pick. 140; 16 Johns. 99; 4 Id. 476; 8 Penna. Rep. 18.

I have thrown out of tbe case tbe guaranty by tbe company of these county bonds. It was made after tbe bonds bad been delivered, and there was neither consideration for, nor authority to make it. Nor is it declared on.

We think the narr. so far sufiicient that tbe objectionable portions of it in tbe second count, would be considered as amended, being amendable. But before another trial, tbe objectionable portions should be exscinded. There are sound counts in tbe narr. on wbicb tbe judgment might have been entered.

These views, it will be seen, establish error on part of tbe court in regard to tbe extent of tbe plaintiff’s right to recover, and in not charging in answer to points on tbe subject that tbe contract for interest was good only to tbe extent we have indicated, and invalid, as to tbe excess not covered by tbe Act of 12th of April 1853, authorizing tbe payment of interest; in other words, that tbe contract was invalid for tbe payment of interest after tbe completion of tbe road from Pittsburg to Connellsville. If there be error in any of tbe assignments not specially noticed, it is immaterial because of the view we have taken of the case, and we need not trouble ourselves with them. As to tbe Statute of Limitations, and the effect of tbe marsbal’s sale of tbe stock of tbe county, in tbe road of tbe plaintiff in error, no error was committed; nor any in bolding that tbe form of action was proper, or in refusing to arrest tbe judgment; but for tbe reasons given, tbe judgment must be reversed.

Judgment reversed, and venire de novo awarded.


source: Caselaw Access Project

author: Williams, J. —

license: Public Domain

text:
    Hultz versus Ackley et al.

    1. Bishop made a deed to King in Ohio, which was acknowledged before a commissioner December 9th 1848. Rultz recovered judgment against Bishop December 26th 1848, under which the land conveyed was sold April 28th 1849, sheriff’s deed acknowledged to Hultz July 23d and registered. King’s deed was recorded September 8th 1849. Meld, that the acknowledgment before a commissioner was sufficient to protect King, his deed having been recorded within twelve months.
    2. The Recording Acts of March 18th 1775, March 23d 1819 and April 14th 1828, relating to deeds made out of the state, are in pari materia,, and are subject to the limitation in the 2d section of the Act of 1775.
    3. A sheriff’s vendee is a purchaser for a valuable consideration within the recording acts, and is protected by them.
    4. A commissioner’s certificate is prim® facie evidence of the execution and acknowledgment of a deed, and, unless there be evidence to impeach its genuineness, it should not be left to the jury to determine whether it was executed and acknowledged at the time and place it purported to be.
    November 5th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 125, to October and November Term 1869.
    This was an action of ejectment, commenced September 8th 1868, by Henry Hultz against Henry T. Ackley and Henry B. Ackley, for a lot of ground on Beaver street, Allegheny city. Alexander King was afterwards admitted to appear and defend as' landlord.
    The title to the land in controversy had been in Thomas B. Bishop, a resident of the state of Ohio, who, on the 9th of December 1848, conveyed it to Alexander King (the landlord), the deed was acknowledged the same day by a commissioner of Pennsylvania residing in Ohio. On the 26th of December 1848 Hultz, the plaintiff in this case, recovered judgment against Bishop, on which he issued execution. Under this execution the land was sold by the sheriff to Hultz; and a sheriff’s deed, dated April 28th 1849, acknowledged July 28d 1849, was made to Hultz, and duly registered in the prothonotary’s office. On the 8th of September 1849 the deed to King was recorded in Allegheny county.
    The plaintiff claimed to recover on the grounds that King’s deed was not recorded within six months from its date and that it was not so acknowledged as to allow one year for its being recorded as having been made out of the state.
    The court (Stowe, J.) charged that the defendant had shown a good title and the verdict should be in his favor. The verdict was for the defendant. The instruction of the court was assigned for error, on the removal of the case to the Supreme Court.

      P. T. Watson and S. M. Raymond, for plaintiff in error. —
    A sheriff’s vendee is protected by the recording acts: Hiester v. Fortner, 2 Binn. 46; Stewart v. Freeman, 10 Harris 120; Banks v. Ammon, 3 Casey 173; Magaw v. Garrett, 1 Id. 322; Salter v. Reed, 3 Harris 260. The defendant’s deed not having been recorded within six months the intervening sheriff’s sale concludes their title: Souder v. Morrow, 9 Casey 84; Penna. Salt Man’g. Co. v. Neel, 4 P. F. Smith 9. The 2d sect. of Act of March 18th 1776, 1 Sm. Laws 422, Purd. 321, pi. 12, provides for recording within twelve months deeds made out of the state and acknowledged in the manner provided by the act. The defendant’s deed was not acknowledged in that manner, but before a commissioner; acknowledgments of that kind were first authorized by Act of April 14th 1828, § 1, 10 Sm. Laws 218, Purd. 316, pi. 39. Whether the deed was executed as was mentioned in the certificate was a fact for the jury to determine.

      Hampton Dalzell, for defendant in error. —
    The deed was on its face regularly executed and acknowledged and its .validity was for the court: Welsh v. Dusar, 3 Binn. 337; Denison v. Wertz, 7 S. & R. 372; Moore v. Miller, 4 Id. 279; Vincent v. Huff, 8 Id. 381; Roth v. Miller, 15 Id. 100; Connellogue v. English, 8 W. & S. 11. A purchaser is bound to look to the possession as well as the record: Stewart v. Freeman, supra. The Act of March 23d 1819, § 1, 7 Sm. Laws 190, Purd. 312, pi. 14, provides for acknowledging deeds made out of the state before a judge of the Supreme Court of the United States, and they may be recorded as if acknowledged as provided in preceding acts. The Act of 1828 makes deeds acknowledged before a commissioner as available as if made before a judge of the Supreme Court of the United States. The acts are all in pari materia.
   The opinion of the court was delivered, February 14th 1870, by

Williams, J. —

This was an ejectment for a lot of ground fronting on Beaver street, in the city of Allegheny, formerly owned by Thomas B. Bishop, under whom both parties claimed title. The material facts upon which the question presented in the record arises are the following:

On the 26th of December 1848, the plaintiff recovered judgment against the said Thomas B. Bishop, in the District Court for the county of Allegheny, and issued execution thereon to January Term 1849, under which the lot in controversy was levied on and condemned as his property; upon a writ of venditioni exponas to the following April Term, all his interest therein was sold by the sheriff on the 23d of April 1849, and by deed of the same date, acknowledged July 23d 1849, and registered in the prothonotary’s office, in the proper sheriff’s deed book, conveyed to the plaintiff, the purchaser at the sheriff’s sale, for the consideration of $10. Prior to the recovery of the plaintiff’s judgment, Bishop and wife, hy deed bearing date December 9th 1848, in consideration of $450, conveyed the lot in question to Alexander King, the defendant’s landlord, who appeared and made defence to the action. The deed was acknowledged by the grantors in due form of law, on the day of its date, at Cincinnati, before a commissioner in Ohio, residing in said city, duly appointed and authorized to take and certify the acknowledgment and proof of deeds, &c., designed to be used or recorded in this state; and on the 8th of September 1849, it was regularly recorded in the office for recording deeds, &c., in and for the county of Allegheny, with the commissioner’s certificate of the acknowledgment endorsed thereon. The court below instructed the jury that the defendant had shown a good title to the property, and was entitled to their verdict. Did the court err in so charging the jury ? This is the only question presented by the assignment of error. It is not alleged that the deed to King was without consideration, or that it was made by Bishop in fraud of his creditors- As it was made and delivered before the recovery of the plaintiff’s judgment, it vested in the grantee a valid and absolute title to the lot, which was not affe'cted by the judgment, for at the time of its recovery the grantor had no interest in the premises to which its lien could attach, and consequently no title passed to the plaintiff under the sheriff’s sale. It still remains in the grantee, unless he has lost it, as contended, by his laches in not Tecording his deed within the time allowed by law, in order to render it valid and operative against the plaintiff. As a sheriff’s vendee is a purchaser for a valuable consideration, within the meaning of the recording acts, he is protected by them. If, therefore, the defendant failed to record his deed in proper time, it must be adjudged fraudulent and void against the subsequent deed of the sheriff under which the plaintiff claims, and which was registered in the prothonotary’s office before the defendant’s deed was recorded. If the defendant’s deed had been executed and acknowledged within the state, then, under the provisions of the 1st section of the Recording Act of 18th March 1775, it would have been his duty to record it within six months after its execution, and the omission would have rendered it fraudulent and void as against the plaintiff. But, as we have seen, his deed was executed and acknowledged in Ohio, and if it is governed by the provisions of the 2d section of the act, he had twelve months within which to record it before incurring the penalty of having it adjudged fraudulent and void against a subsequent purchaser, whose deed might be first recorded. It is strenuously contended that it does not come within this section, for, by its very terms, it applies only to deeds and conveyances acknowledged or proved in manner as directed by the laws heretofore for that purpose made, or proved by one or more of the subscribing witnesses before any supreme judge of this province.” It is true that the deed was not acknowledged in conformity with the provisions of the 22d sect., but the argument overlooks and ignores the laws which have since been passed providing other modes for the acknowledgment or proof of deeds executed out of the state, for lands within the state, to be used and recorded here. The Act 23d March 1819, Purd. Dig. 312, § 14, declares, that “ all deeds, conveyances and other instruments of writing, concerning any lands, tenements and hereditaments within this state, that may hereafter be made out of this state, the. execution whereof being duly acknowledged by the party or parties executing the same, or proved by the oath or affirmation of one or more of the subscribing witnesses thereto, before one of the judges of the Supreme Court of the United States, or before a judge of the District Court, or before any one of the judges or justices of the Supreme or Superior Court, Courts of Common Pleas of any state or territory within the United States, and so certified under the hand of the said judge and seal of the court, shall be as valid to all intents and purposes, and be in like manner entitled to be recorded, as if the same had been made, acknowledged or proved and certified in conformity with any law of this Commonwealth.” And the Act of the 14th April 1828, Purd. Dig. 316, § 39, authorizing the governor to appoint commissioners in other states to take the acknowledgment or proof of deeds for any lands, tenements or hereditaments lying or being in this state, provides that “ such acknowledgment or proof taken or made in the manner directed by the laws of this state, and certified by any one of the said commissioners, before whom the same shall be taken or made, under his seal, which certificate shall be endorsed on or annexed to said deed or instrument aforesaid, shall have the same force and effect, and be as good and available in law for all purposes, as if the same had been made or taken before a judge of the Supreme Court of the United States.” These acts are all in pari materia, and must be construed together, and therefore they must be regarded as subject to the limitation contained in the 2d section of the original act. The main purpose of this section was to limit the time within which deeds executed out of the state, and acknowledged or proved as therein authorized and provided, might be recorded in order to be available against subsequent purchasers, whose deeds were first recorded. The only purpose of the subsequent acts was to provide greater facilities for the acknowledgment or proof of such deeds than were afforded by the original act. All of these acts must then be read and construed as if they constituted but one enactment; and if so, the deeds acknowledged in conformity with the provisions of either are subject to the limitation of the 2d section of the original act. If they are not, then there is no law defining and limiting the time within which they must be recorded. They do not come within the provisions of the 1st section, for that applies only to deeds executed and acknowledged, or proved, within the state. And if they do not come within the limitation contained in the 2d section, they stand on the footing of deeds made before the passage of the act, and are within the mischief which it was intended to remedy. It would, therefore, be most unreasonable, to hold that the legislature in providing new modes for the acknowledgment or proof of deeds executed out of the state, intended to exempt them from the limitation prescribed in the original act. Even if we could impute such an intention to the legislature, and construe these statutes as isolated and independent enactments, it would not avail the plaintiff, for, if the defendant’s deed is not within the limitation of the 2d section of the Act of 1775, there is no law limiting the time within which it must be recorded under pain of being adjudged fraudulent and void against a subsequent purchaser. But for the reasons given it is clearly within the limitation, and as it was recorded withirf the prescribed period the defendant has a good and valid title to the lot.

Nor was it, as contended, a matter of fact for the jury to decide whether the defendant’s deed was actually executed at the time and place mentioned in the instrument or certificate of acknowledgment endorsed thereon. Under the Act of 3d April 1840, Pamph. L. 233, the commissioner’s certificate was primá facie evidence of its execution and acknowledgment, and without some evidence tending to show its falsity or to impeach its genuineness, it would have been error to have left it to the jury to determine whether the deed was executed and acknowledged at the time and place it purported to be, as certified by the commissioner. The learned judge of the Common Pleas was therefore right in giving a binding direction to the jury to find for the defendants.

Judgment affirmed.


author: Sharswood, J. —

text:
    The Ardesco Oil Company versus Gilson.
    1. A corporation can act only through its officers and agents, and the officer having charge of its business for practical purposes must be regarded as the corporation.
    2. The duty and liability of a corporation to its servants is the same as that of natural persons.
    3. Employers owe to their servants and workmen the exercise of reason-ab]e oare ai1^ Pl'°Per diligence in providing them with safe machinery and suh<able tools, and employing with them fit and competent superintendents and fellow-workmen.
    4. If a person employs mechanics or contractors in an independent business, and they are .of good character and there was no want of care in choosing them, he is not liable for injuries to others from their negligence or want of skill.
    5. If one employs a reputable machinist to construct a steam-engine and it blows up from bad materials or unskilful work, the employer is not responsible for injury to his own servant or to a third person.

      6. The rule is different if the machine is made according to the employer’s own plan, or he interferes and gives directions as to its manner of construction.
    7. There is no difference between liability to a stranger and to a servant for a man’s own negligence or want of skill.
    8. A master is not responsible for an injury to a servant by the negligence of a fellow-servant unless he has failed in ordinary care in the employment of the culpable party.
    9. What is due care and ordinary diligence depends much on the kind of business and the sort of material handled.
    10. The competency of a person to give his opinion as an expert, if on á preliminary examination he appears to have any pretensions to speak as such, rests much in the discretion of the judge trying the cause.
    11. It is not imperatively required that the business or profession of the witness should be that which would enable him to form an opinion.
    November 5th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to tbe District Court of Allegheny county: No. 29, to October and November Term 1869.
    This was an action on the case for negligence, brought March 29th 1867, by John P. Gilson against the Ardesco Oil Company. The plaintiff was in the employ of the defendants, as carpenter, at their oil-mills, and by the explosion of two of their stills he was badly injured; this suit was brought to recover compensation for the injury.
    The case was tried January 11th 1869, before Kirkpatrick, J.
    A. T. Schmidt, superintendent of defendants, testified for plaintiff : that plaintiff worked about 150 feet distant from the stills; there were six stills, made by one Graber and another manufacturer; two of those made by Graber exploded; witness had frequently put up stills, but never any so large or made of iron so weak; Mr. O’Hara, president of the company, ordered the stills; he was there when they were put up; he did not consult witness about the stills. About two weeks after the stills were completed the oil — crude petroleum — was put in and fire put under them; as soon as the oil heated the still moved up and down, both on the top and the sides, which they should not have done; it frightened the witness, and he informed O’Hara immediately. He considered what he would do to prevent this; iron rods to stiffen the stills were put in: they did not consider that sufficient, but would try it; the rods were pulled out of their places; O’Hara told witness to consult Graber and to do what witness and Graber should think best; Graber came and found it difficult to know what to do; they put angle iron on the outside and on the top of the stills; put fire under a day or two afterwards, about 5 o’clock in the morning ; all went well till about 11 o’clock, when yellow smoke came out, but nothing very alarming; about 12 o’clock the smoke increased and the explosion occurred; the top of one still was lifted off and part of the side; plaintiff was in his shop, which was set on fire almost immediately, and the plaintiff badly burned. Wit' ness thought the stills too large for the thickness of the iron, but thought they would do when the angle iron was put on. Other witnesses testified that when the oil was heated, the stills surged and heaved, which should not have occurred.
    T. H. Cargo testified that he was steamfitter at the defendants’ works, and was there at the explosion. He had no knowledge of stills except working with them and fitting them up after they are put up.
    The plaintiff then proposed to ask witness, whether, in his opinion, the iron of which the tank was composed was of sufficient strength. The question was objected to, because the witness had not shown himself to be an expert. The court allowed the question to be put and sealed a bill of exceptions.
    Witness did not think the iron was strong enough when the stills were put up; before the still which exploded was put up there was a small crack on its top. There was other evidence by the plaintiff bearing upon the question of the character of the stills, of the repairs to them, their manner of working, &c. Also the extent of plaintiff’s injury, and evidence bearing on the question of damages.
    Michael Graber, the manufacturer, who was called by the defendants, testified that the stills were made on Mr. O’Hara’s plan, and that stills were not made so at the time of the trial; the stills were made of Lyon & Short’s iron, which was the best boiler iron in the market; witness considered the iron sufficient for the size of the still; he went to examine the stills and concluded to put in angle iron to stiffen the tops and sides, so he and Mr. O’Hara thought; witness thought that the angle iron would remedy the defect, and so told Mr. O’Hara. • There was other evidence on the part of the defendant in answer to the plaintiff’s case.
    Mr. O’Hara was not a machinist.
    The defendants’ 5th and 6th points, and the answers of the court were:—
    “ 5. That in cases of this kind, what amounts to negligence on part of defendant, is a question of law for the court, and taking all of plaintiff’s testimony to be true, with the undisputed testimony of defendant, no such act or default on part of defendant has been shown, as would warrant the court in submitting to the jury the question whether the negligence of defendant had caused, or resulted in the loss and damage sustained by the ■plaintiff.”
    “ Affirmed, as to negligence being a question for the court. Refused as to the balance.”
    “ 6. That taking all the testimony of plaintiff to be true, it does not make out a case of negligence on the part of defendant to warrant a verdict in favor of plaintiff.”
    “ Refused.”
    The court referred to, and commented upon the evidence, and further charged: * * * “ Having learned of the imperfect manner of the performance of the stills when found tested, did or did not Mr. O’Hara do all that ought reasonably to have been required of him, in the light of facts and circumstances as they then existed. You must judge Mr. O’Hara by what he then knew, and not by what he and you know now. What would you have done had you been in his place, with the knowledge he then possessed ? Judge him as you would have yourself judged under like circumstances and at that time. Keep to this point in all your deliberations upon the question of negligence, and do not deliberate in the blaze of this fearful baptism of fire happening afterward, which showed too truly that an accident had happened, and that the plaintiff, but for God’s mercy, would not be alive to-day to tell the tale. Keeping steadily in view what he saw and what he heard before the accident, and what he did in order to make these stills perfect in performance and secure from accident, proceed to judge Mr. O’Hara, and through him the defendants whom he represents. Were the stills sufficient in structure ? Were they of proper material, properly used? If not, did the defendants do all that reasonable men should have done under the circumstances ? [The plaintiff says the defendants should have taken and thrown away these stills simply because they ‘ surged’ and ‘ heaved’ as described by the witnesses, and so ask us to say to you as a matter of law. We will not, and do not, so instruct you, but leave it to you to say, as the triers between the parties as a question of fact, what he should have done under all the circumstances. If you, upon your oaths, looking at this case in all its aspects, and putting yourselves in his position, think this was what a person of ordinary prudence and caution ought to have done, then your verdict must be for the plaintiff.] If, upon the other hand, you are of opinion that being, as is admitted, no mechanic, Mr. O’Hara, relying upon the suggestion of Schmidt and Graber, who were men admittedly competent, had a right to think that the defect could be remedied, and that he did in good faith attempt the remedies, and also did whatever any person in his condition, of his mechanical knowledge, and placed in his circumstances, would have done, then this is an end of the case for the plaintiff, and your verdict must be for the defendants.” * * *
    The verdict was for the plaintiff for $1500.
    The defendants took out a writ of error. They assigned for error, the answers to their points, the part of the charge in brackets ; submitting to the jury to find negligence and want of ordinary care on the part of defendant, when there was no evidence to warrant such finding, and the admission of the evidence objected to.

      II. Burgwin, for plaintiffs in error,
    cited Mob. & Ohio Railroad v. Thomas, 8 Am. Law Reg. 154; Warner v. Erie Railway, Id. 209; Wilson v. Murray, House of Lords Cases, Pt. 3, July 1868, p. 326.

      J). W. $ A. 8. Bell, for defendant in error.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

The first four errors assigned are to the answers to the points and to the charge of the learned judge in the court below in this, that, without any, or sufBcient evidence, he left it to the jury to determine whether the injury which the plaintiff below had sustained from the explosion of two oil stills in the oil refinery establishment of the defendants had resulted from their negligence.

The defendants were a corporation, and could only act through their officers or agents. It is their officer, having charge of their business, who, for all practical purposes, must be regarded as the corporation itself: Frazier v. The Pennsylvania Railroad Co., 2 Wright 104. The same rule of liability must be applied to them as to natural persons. The duty which they owe to their servants and employees is the same. What employers owe to their servants and workmen is the exercise of reasonable care and proper diligence in providing them with safe machinery and suitable tools, and in employing with them fit and competent superintendents and fellow-workmen. Not that they warrant the result, nor that extraordinary vigilance is exacted of them. It is nevertheless true, as stated by the learned judge below, in his charge, that what is due care and ordinary diligence will much depend on the kind of business which is carried on, and the sort of material which is handled. The proprietor of a powder-mill must exert more precaution than the master of a blacksmith shop. So, in such an establishment as that carried on by the defendants below — in refining oil from crude petroleum — a material highly inflammable and explosive, we are bound to examine the question of negligence with a regard to this circumstance.

It may be considered as now settled that, if a person employs others, not as servants, but as mechanics, or contractors in an independent business, and they are of good character, if there was no want of due care in choosing them, he incurs no liability for injuries resulting to others from their negligence or want of skill: Painter v. The Mayor of Pittsburg, 10 Wright 213. If I employ a well known and reputable machinist to construct a steam-engine, and it blows up from bad materials or unskilful work, I am not responsible for any injury which may result, whether to my own servant or to a third person. The rule is different if the machine is made according to my own plan, or if I interfere and give directions as to the manner of its construction. The machinist then becomes my servant, and respondeat superior is the rule: Godley v. Hagerty, 8 Harris 387; Carson v. Godley, 2 Casey 111. There is no difference between liability to a stranger and to a servant for a man’s own negligence or want of skill; though a master is not responsible for an injury to a servant by the negligence of a fellow-servant, unless he has failed in ordinary care in the employment of the culpable party: Ryan v. The Cumberland Valley Railroad Co., 11 Harris 384; Frazier v. The Pennsylvania Railroad Co., 2 Wright 104; Hunt v. The Same, 1 P. F. Smith 475; Caldwell v. Brown, 3 Id.

Applying these principles to this case, we think that the learned judge below was entirely right in submitting the question of negligence to the jury. Graber, the machinist, testified that the stills were made according to the plan of Mr. O’Hara, the president of the company defendants. When, upon trial,, they were found to be defective, he says : “We concluded to put in angle iron to stiffen the tops and sides; so Mr. O’Hara and I thought.” The opinion of the president, assuming to understand the subject, would naturally have great weight with the mechanic. Had he been intrusted with the work under a contract to construct stills of sufficient strength for the purpose, leaving that to his own judgment and skill, the company could not have been visited with the consequences of his failure, but such does not appear to have been the case in this instance; at least there was evidence for the jury.

The fifth assignment is that the court below erred in permitting a witness for the plaintiff to give his opinion that the iron, of which the still was composed, was not of sufficient strength. The ground of the exception is that he was not such an expert as to make his opinion competent. He was a steam fitter at the defendants’ works, and said that he had no knowledge of stills, except working with them and fitting them up, after they were put up. An expert, as the word imports, is one having had experience. No clearly defined rule is to be found in the books as to what constitutes an expert. Much depends upon the nature of the question in regard to which an opinion is asked. There are some matters of which every man, with ordinary opportunities of observation, is able to form a reliable opinion: Wilkinson v. Moseley, 30 Alab. 562; Dewitt v. Bailey, 17 New York 340. It is not necessary, as it is said in one case, to call a drover or butcher to prove the value of a cow: Ohio Railroad Co. v. Irwin, 27 Illinois 178. Nor is it imperatively required that the business or profession of the witness should be that which would enable him to form an opinion: Van Deusen v. Young, 29 Barb. 9; Smith v. Hill, 22 Id. 656; Price v. Powell, 3 Comstock 322; Fowler v. Middleton, 6 Allen 92. In Phillips v. Gregg, 10 Watts 158, witnesses, who were not lawyers by profession, were received to testify as to what constituted a lawful marriage in the settlements of the Mississippi valley, half a century before. While, undoubtedly, it must appear that the witness has enjoyed some means of special knowledge or experience, no rule can be laid down, in the nature of things, as to the extent of it. It must be for the jury to judge of the weight to which his opinion is entitled. It was held in Howard v. Providence, 6 Rhode Island 514, that the competency of a person to give his opinion under oath as an expert, so that, upon the preliminary examination, he appears to have any pretensions to speak as such, rests very much in the discretion of the judge trying the cause. This is in accordance with our own cases of Leasure v. Hillegas, 4 S. & R. 313, and Flinn v. McGonigle, 9 W. & S. 75, where, upon a similar preliminary question of fact as to the loss of a paper before admitting parol evidence of its contents, it was said that it must be a strong case to induce this court to interfere. It follows that we cannot pronounce the admission of the evidence in this case to have been erroneous.

Judgment affirmed.


author: Read, J. —

text:
    Bigley versus Risher & Wilson.
    1. In an action for the price of a boat laden with coal, it appeared that there had been no actual delivery or possession taken by the alleged vendee and there was no specification of price. Held, that there was no sale.
    2. Sale means a contract to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought.
    November 5th 1869.
    Before Thompson, C. J., Reed, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 37, to October and November Term 1869.
    This was an action of assumpsit brought to July Term 1868 by Ithamar D. Risher and Joseph Wilson, partners as Risher & Wilson, against Nicholas J. Bigley. The plaintiffs declared in all the common counts. Their claim was for a boat and cargo of coal. The boat was lying at the plaintiffs’ works on the Monongahela river; and remained in the possession of the plaintiffs. After the alleged sale there was a break up of the ice in the river, which carried the boat away from its moorings: — it was wrecked and both boat and cargo were lost. The questions which were considered in the court below were, whether there was a contract of sale; whether there was a delivery, and whether there was negligence in the plaintiffs in their care of the boat. The plaintiffs gave evidence by John C. Risher, a brother of one of the plaintiffs, that after he heard of the accident he went to the defendant’s office and informed him of it; he said to witness “ go on up and do what I could; that he considered the boat his; that he had bought it of my brother.” At a conversation some weeks afterwards, the plaintiff Risher said to defendant he had come to know, whether in case. plaintiff should raise the boat, defendant would pay the balance; defendant said he did not wish to be identified with the boat, but did not care to give him a little, a few hundred dollars; said it was a pity he had not taken the boat away before the accident; “ according to what I understood was the agreement, it would have saved all this trouble.”
    William O’Neill testified, that defendant said to him after the accident, that he had bought the boat and if she was properly tied he expected to pay for her.
    For defendant, John Musgrove, defendant’s clerk, testified, that some time before the accident Risher came to the defendant to sell the boat; defendant asked Risher what he wanted for the boat. Risher asked what he would give; defendant wanted Risher to name figures; Risher said he would let him know in a day or two what the figures would be, and left. Risher and defendant were next together about the boat at the time spoken of by J. C. Risher. Witness testified to what took place then somewhat different from Risher. There was other evidence bearing upon the question of sale, but none showing that any price had been agreed on. There was much evidence as to delivery, but it was undisputed, that no actual delivery of the boat was made to the defendant and that he never took possession of it.
    The first point of the defendant with its answer is as follows:—

      “ The evidence does not show any such concluded bargain or contract between the parties as passed the title to the defendant to the boat in controversy.”
    “ Refused. We leave this as a question of fact to be passed upon and determined by the jury.”
    The court, Kirkpatrick, J., amongst other things charged:—
    * * * “ Was there a sale of this boat from the plaintiffs to the defendant ? If so, was there also a delivery such as the law requires of the articles from the buyer to the seller 1 Both are requisites. It-would seem to be conceded — but this is for you— there was a sale. The plaintiffs have given you their version of it, the defendant his. The plaintiffs claim that thus and so were the conditions of the sale, whilst the defendant claims that it was something else. Do they agree substantially, and if not, wherein do they differ, and are the differences material and vital ?
    “ If these differences in allegation and proof are reconcilable, you must reconcile them. If irreconcilable, you must receive and believe what in your conscientious judgment is entitled to belief, and reject whatever and all else that does not so commend itself. As already intimated, you are ‘a law unto yourselves,’ answerable only to your own consciences for all and whatever you may regard as false, or receive as true, in this case.”

      “ Again: the plaintiffs claim that they not only sold, but delivered the boat to the defendant. The defendant asserts that they did not. * * *
    “ We tell you simply what is necessary to be done in order to constitute a good and sufficient delivery in law: it is for you to say whether or not these things have been done, and all these essentials complied with. If they have, in your judgment, then there was a delivery, and your verdict must be for the plaintiffs; if not, your verdict must be for the defendant. In so determining, gentlemen, you must, however, go a step further and consider the character of the article to be delivered. A man could not deliver a ship at sea as easily as a wagon upon land. Nor could one deliver timber standing upon his farm with the same care and completeness, so to speak, that he could deliver a horse in his stable. You must, in determining the question whether all was done that could be done, take into consideration the nature, character and bulk of the article, bearing further in mind that these plaintiffs were not bound — nor is it so contended — to remove the boat, or take it elsewhere than where it was lying at the time of the sale. In other words, it is not contended that the plaintiffs wrere bound to take this boat anywhere in order to give the defendant possession; and, hence, the only question for your determination will be, did they do all they could have done to give possession of her as she there lay, or was there anything else in your judgment that they should have done in order to accomplish a perfect delivery. If they left anything undone which, in your conscientious opinion, they ought to have done, there was no delivery in law, and we so instruct you, and they cannot recover; but if they did all that could have been required of them, upon an examination of all the circumstances, and taking into consideration the nature, character, bulk, condition and location of the boat, then they are entitled to recover, and your verdict will be for them in such amount as the evidence in the case warrants. This we instruct you is the true test of delivery, and by this test you will determine in this regard and the particular facts of this case.” * * *
    The verdict was for the plaintiffs for $2508.
    The defendant took a writ of error and assigned for error (amongst others) the portions of the charge given above and the answer to the defendant’s first point.

      M. W. Aoheson, for plaintiff in error. —
    The question was whether there was a sale. The court assumed in part of the charge that this was conceded and in others that it was in dispute, and thus left the jury at loss; this was error: Selin v. Snyder, 11 S. & R. 319. The price was not ascertained and therefore there was no sale: Nicholson v. Taylor, 7 Casey 128. A sale is not compíete if anything remains to be done: Story on Sales, sect. 296, 297; Zagur v. Campbell, 4 Campbell 240; Wallace v. Brees, 13 East 522: Nesbit v. Burry, 1 Casey 208.

      M. S. Woods, for defendants in error.
   The opinion of the court was delivered, November 11th 1869, by

Read, J. —

The leading case, in Pennsylvania, as to what constitutes a complete sale of a chattel, as between the parties, is Scott v. Wells, 6 W. & S. 357, in which the law is clearly laid down, in the charge of Judge Jones to the jury, and in the opinion of Chief Justice Gibson. “I grant,” says Chief Justice Gibson, “that a sale may be fatally defective in its members; and that by the civil, as well as the common law, the specification of a price is necessary to constitute it.”

In the case before us, there was no actual delivery to and possession of, the coal-boat taken by the defendant, and no specification of the price is to be found anywhere in the evidence. “We did not prove the price,” say the plaintiffs’ counsel, and the boat lying in the plaintiffs’ harbor, and in his custody, from which it had not been removed, was swept away and lost before this essential member, the price, was fixed or specified.

It is clear from the judge’s charge, and his refusal of the defendant’s first point, that he considered there was a sale concluded, and that the only question was, was there a delivery ? “ It would seem to be conceded — but this is for you — there was a sale.” This was not conceded by the defendant, but denied, and yet the charge proceeds upon this hypothesis. There was a fatal defect in this so called sale, there was no price, and so the court should have informed the jury. They should have said if there is no price specified and proved, there is no sale.

“ Sale,” said Mr. Justice Wayne in Williamson v. Berry, 8 How. 544, “ is a word of precise legal import in law and in equity. It means at all times, a contract between parties to pass rights of property for money which the buyer pays or promises to pay to the seller, for the thing bought and sold.” Huthmacher v. Harris’ Administrator, 2 Wright 498; 1 Harris 148; Hilliard’s Law of Sales of Personal Property, p. 1230.

The evidence does not show any such concluded bargain or contract between the parties, as passed the title to the boat and coal in controversy to the defendant.

Judgment reversed and venire de novo awarded.