author: Mr. Justice Sterrett

text:
    Ely versus Wren.
    1. When a special security and remedy are given to a favored class of creditors, they must conform with reasonable accuracy to the provisions of the law designed for their benefit.
    2. Where a claim is filed, under the provisions of the Act of February 17th 1858, extending the Mechanics’ Lien Law in certain counties to certain improvements, engines, &c., put up by tenants of leased estates on lands of others, the property against which the lien is given must be so accurately described, that when judgment is obtained on the scire facias a separate schedule will not be required to be annexed to the levari facias for the guidance of the sheriff.
    3. It seems, that it was informal to enter judgment against the defendants personally in such a proceeding ; but if there was no other difficulty in the way this might be treated as amended.
    4. St. Clair Coal Co. v. Martz, 25 P. F. Smith 384, followed.
    April 8d 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the' Court of Common Pleas of Oarbon county: Of January Term 1879, No. 203.
    Scire facias sur mechanics’ lien issued by W. C. Wren against E. B. & S. W. Ely.
    On February 12th 1876, William O. Wren filed a mechanics’ lien under the Act of February 17th 1858, Pamph L. 29, the provisions of which were extended to the county of Carbon by the Act of April 4th 1868. The Act of 1858 provides as follows:
    “That the several provisions of an act, entititled ‘An act relating to the-liens of mechanics and others upon buildings,’ approved the 16th of June 1836, and the several supplements thereto, are hereby extended to all improvements, engines, pumps, machinery, screens and fixtures erected or put up by tenants of leased estates, on land of others, in the counties of Luzerne and Schuylkill, and to all mechanics, machinists and material men doing work or furnishing the articles or materials therefor: provided, that the lien hereby created shall extend only to the interest of the tenant or tenants, lessee or lessees therein, and to the improvements, engines, pumps, machinery, screens and fixtures erected, repaired or put up by the mechanics, machinists, persons or material men entering liens thereon.”
    The claim filed by Wren was “for a debt due to him for work done and material furnished by him for and about the erection and construction, and upon the credit of improvements, engines, pumps, machinery, screens and fixtures put up or erected by E. B. Ely & Co., tenants of leased estate on land of another in the said county of Carbon.”
    He claimed a lien under the provisions of the above act against said improvements, engines, pumps, machinery, screens and fixtures erected or put upon the aforesaid leasehold estate of E. B. Ely & Co. and the interest of said E. B. Ely & Co., tenants, in and to the said improvements, engines, pumps, machinery, screens and fixtures, and their interests in and to so much other improvements, engines, pumps, machinery, screens, fixtures, &c., immediately adjacent thereto, as may be necessary for the ordinary and useful purposes thereof.
    Appended to the claim was a schedule entitled, “List of machinery on premises of E. B. Ely & Co.” Certain articles of machinery in this list had the name of the claimant written opposite to them, and in a few instances there was added to the name a memorandum of articles and materials.
    On April 30th 1877, judgment was entered against the defendants for want of an affidavit of defence, the amount of the debt to be ascertained by the prothonotary. On the same day the prothonotary ascertained said amount to be $7473.99. On this judgment a fi. fa. issued, which was afterwards stayed. In May 1877, a levari facias issued, attached to which was a copy of the list of the machinery contained in the claim. On June 12th 1877, the defendants presented a petition, sustained by an affidavit, to open the judgment and stay the levari facias, on which a rule nisi was granted. This rule was subsequently discharged, and on August 6th 1877, judgment was entered for plaintiffs in the sum of $6037.05. On this judgment an alias levari facias issued, attached to which was a list of machinery, but in said list was included only a part of the machinery contained in the original claim.
    The defendants took this writ and assigned for error the entry of the original judgment “against defendants,” for want.of an affidavit of defence, and the subsequent entry of judgment for a reduced amount.

      J. Bertolette and James B. Gowen, for .plaintiffs in error.
    It was erroneous to enter judgment against the defendants personally. The claim was not in compliance with the Act of 1858.
    It was defective because it was filed against the improvements, engines, &c., and not against the interest of E. B. Ely & Co. therein, and because the claim is filed' against a large number of articles upon which no work was done and to which no materials were furnished, and is not confined to the specific improvements upon which work was done or to which materials were furnished.
    The Act of 1858, while it gives a lien to mechanics and others upon improvements, engines, &c., erected by tenants of leased estates, yet provides that the lien thereby created “ shall extend only to interest of the tenant or tenants, lessee or lessees therein, and to the improvements, engines, pumps, machinery, screens and fixtures erected, repaired or put up by the mechanics, machinists, persons or material men entering liens thereon.”
    In other words, it confines the lien to the interest of the tenants in the specific improvements and machinery upon which the labor and services were bestowed: Summerville v. Wann, 1 Wright 184; Esterley’s Appeal, 4 P. F. Smith 192; Carey v. Wintersteen, 10 Id. 395; St. Clair Coal Co. v. Martz, 25 Id. 384.
    The claim furnished no sufficient data for the entry of any judgment. It was the duty of the plaintiff to designate with reasonable precision the subject of his claim.

      II. Green, for defendant in error.
    Whether the judgment was entered against the defendants generally, or whether it was so entered as to be a judgment in rem only is certainly no ground for reversal. It could be entered correctly in this court if necessary to be changed.
    The objection to the lien on the ground of uncertainty is too technical, especially after judgment. The very words of the statute expressly give a lien not only against the improvements, engines, pumps, machinery, &c., but also against the interest of the tenants therein.
    The claim of lien upon so mueh of the immediately adjacent machinery as is necessary for the ordinary and useful purposes of the machinery, &c., put in by the claimant, does not seek to charge any other machinery than such as is directly connected with that furnished by the plaintiff, so as to be incapable of separation from it. If we undertake to sell any articles which the defendants can show are not subject to our lien, they can easily restrain us by injunction, or order, upon direct application to the court.

      It would, of course, be impossible for the claimant to follow each bolt and nut and plate and other article furnished into the particular piece of machinery in which it was used, nor does the act require any such minuteness of detail. The items furnished were-very numerous.
    Even if the writ of alias levari -facias were erroneous by reason of too much generality, that would be no cause for reversing the judgment, and it would certainly not be a matter of complaint by the defendants, if we are careful to restrict, by a schedule, the operation of the writ to those things only which are certainly bound by our lien. It is certainly not error to sell the articles of machinery themselves, and also the interest of the defendants therein, when the statute expressly gives such a right.
    May 5th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The record in this case presents a seriés of irregularities and errors, some of which are fatal to the lien. When a special security and remedy are given to a favored class of creditors it is not asking too much to require them to conform with reasonable accuracy to the provisions of the law designed for their benefit. If this is done, unnecessary complications, involving disinterested parties in litigation and imperilling the rights of creditors and others may be avoided. The property against which the lien is given should be so accurately described that when judgment is obtained on the scire facias, the writ of levari facias, following the claim, may so designate the property and extent of the interest therein to be sold, that a separate schedule will not be required for the guidance of the sheriff.

The plaintiff below undertook to file a lien under the Act of February 17 th 1858, entitled, “An Act relative to Mechanics’ Liens in the counties of Luzerne and Schuylkill,” which extends the provisions of the Mechanics’ Lien Law “to all improvements, engines, pumps, machinery, screens and fixtures, erected or put up by tenants of leased estates on land of others in the counties of Luzerne and Schuylkill, and to all mechanics, machinists and material-men doing work or furnishing the articles or materials therefor.” This act was subsequently extended to Carbon county. By the express terms of the proviso, the lien thereby “ created shall extend only to the interest of the tenant or tenants, lessee or lessees therein, and to the improvements, engines, pumps, machinery, screens and fixtures, erected, repaired or put up by mechanics, machinists, persons or material-men entering liens thereon.” The lien is thus limited to the interest of the tenants in the specific improvements and machinery upon which the services and labor are bestowed or for which materials are furnished: St. Clair Coal Co. v. Martz, 25 P. F. Smith 384.

From the statement in this case it appears that the claim was filed against the “improvements, engines, pumps, machinery, screens and fixtures erected or put up on the aforesaid leasehold estate of E. B. Ely & Go. and the interest of E. B. Ely & Co., tenants, in and to the said improvements, engines, pumps, machinery, screens and fixtures, and their interest in and to so much other improvements, engines, pumps, machinery, screens and fixtures, &c., immediately adjacent thereto, as may be necessary for the ordinary and useful purposes thereof.” The claim was thus filed not only against the interest of E. B. Ely & Co., in the improvements, engines, &c., but against the improvements, engines, &c., themselves ; and also against a number of undefined structures and articles adjacent thereto, upon which it is not claimed that any work was done, or for which any materials were furnished by the claimants. It was not confined, as the act provides, to the specific improvements upon which the work was done, or for which materials were furnished. Appended to the claim is a schedule, entitled, “list of machinery on premises of E. B. Ely & Go.” Presumably this was intended to designate all the machinery on the leasehold premises. Certain articles of machinery in the list have the name of the claimant written opposite them, and in a few instances there is added to the name a memorandum of articles and materials. From this it might possibly be conjectured that the claimant performed work upon or furnished materials for the machinery thus designated by his name; and, where particular articles are mentioned in the memoranda attached to his name, it might perhaps be inferred that the specific articles were furnished; but, after all, it would be only a matter of inference or conjecture. There is an entire absence of that certainty and precision which should characterize a statement that forms the basis of a special lien, which, if not otherwise satisfied, is designed to be enforced by a judicial sale, resulting in a transfer of title. The proceeding is in rem, and the claim should be so certain and definite as to indicate with at least reasonable precision the property that is to be subjected to the lien, and the extent thereof. Without this it fails to furnish -sufficient. data for the entry of a judgment upon which the levari ■must issue for the sale of the property. In this case the claim as filed was incurably defective, and wholly insufficient to justify the • court in entering judgment for want of an affidavit of defence. There was no act done or omitted to be done by the defendants below that could 'have the effect of waiving these defects. Their failure to file an affidavit did not do so. It was, of course, informal to enter judgment against the defendants personally, in such a proceeding; but if there was no other difficulty in the way, this ' might be treated as aprended.

The judgment is reversed and set aside, and it is now ordered that the lien be stricken from the record.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Rush versus Able.
    1. Extra work done and materials furnished by a contractor during the performance of his agreement, may be iucluded in and constitute a part of his claim, if the claim be filed within six months after the completion of the contract. Though outside the contract, they are so closely connected with it that they have always been included, in filing the claim, with those done and furnished under the contract.
    2. All that is required to validate a mechanics’ lien, is such certainty as will enable those interested to discover during what period the materials were delivered, or the work done, so as to individuate the transaction.
    3. Where an architect claims to have a lien for charges and fees, he must show work done for which the statute gives a lien; and such work is not shown by the name of his calling. Especially should the kind of work be set forth distinctly, when it is claimed as extra work by the contractor. Bank v. Gries, 11 Casey 423, distinguished, and Price v. Kirk, ante, page 47, followed.
    April 4th 1879.
    Before "SharsVood, C. J., Mercur, Gordon, Paxson, Woodward, Trunket and Sterrett, JJ.
    Error to the Court of Common Pleas of Northampton county: Of January Term 1879, No. 240.
    On December 27th 1873, S. P. Bush & Son, house-carpenters, filed a mechanics’ lien against Edward Able, owner or reputed owner, and contractor, and a building known as Abie’s Opera House, in the borough of Easton. Accompanying the claim, and made a part thereof, was the following bill of particulars:
    “ 1873.
    June 28.
    To building Opera House in the Borough of Easton, Northampton county, Pennsylvania, and furnishing the said materials for the same, including excavations, stone, mason-work, marble, marble-work, bricks, brick-work, iron-work, carpenter-work, lumber, slate and roofing, plastering, plastering materials, hardware, painting, painting materials, glass, glazing, sky-lights, gas-fitting, plumbing, seats, upholstering, upholstering materials, oil-cloth, turning, carving, mouldings, tin-work, scenery, drop-curtain, cordage and cartage, as per agreement, dated June 14th 1872, and the supplement thereto.
    §53.644.77
    BILL FOR EXTRA WORK ANB MATERIALS.
    1873.
    Eeb. 19. Bill of coal and carting same . . . $389.50
    Extra carting by Bercaw .... 18.00
    Jacob Rafferty, mason-work . . . 2.50
    P. Correll, lime bill .. . . ... 43.93
    Bill of Phillipsburg Iron Co. 794.30
    Three feet of brick-work over ball-room, extra, at $15.50 per M...... 369.76
    60 yards of plastering to same . . . 21.00
    3 window frames on Wagener’s line . . 80.00
    Extra door on clothing store . . . 30.00
    Large windows on Wagener’s line . . 53.00
    24 lights of glass, 18 x 34, at §1.08 . . 25.92

      Trimming, fitting and hanging sash . . $20.00
    Sash-weights, cord and hardware . . 11.95
    Painting and glazing ..... 15.00
    Carpenter-work and lumber, sky-lights in floor, &c., setting glass .... 50.00
    Glass in floor......130.00
    &c., &e., &c.
    EXTRA WORK ON STAGE.
    23 days by G. Householder, making traps, extra scenery, set pieces and paint frames and getting stage ready for night performances, at $3.75 .... 1 day by Householder, 2 days by men, at $5.00 63 hours night work...... 72 papers of tacks, at 8 cts..... 70 feet poplar bds. for profiles, at 7 cts. 3 lbs. of nails, at 7 cts. .... 1 gross of one and a half-inch screws . 2 papers two-inch clout nails 9 sheaves for traps, &e. .... 15 counter weights for traps and 6 for paint frames . ■ 10 lbs. of nails, at 7 cts. . ” . Extra boarding for Householder for-extratime Cordage for traps and paint frame Smith work by W. Thatcher 1151 ft. of lumber for traps and paint frame, at 7 cts. ...... Philip Stern, paper muslin .... 700 yards plastering on stage, at 35 cts. T. M. Lesher & Bro’s extra bill . Plush for rolls...... Extra glass in bulks..... Architect’s charges and fees 86.25 15.00 31.50 5.76 4.90 21 75 60 9.00 43.25 70 19.60 12.44 . 47.78 80.57 35.49 245.00 3701.12 100.00 101.00— 7944.40 3617.65 Aggregate price $65,306.82
    The work was commenced on or about the 14th day of June 1872, and finished on the 28th day of June 1878, on which day the last was done, in which time said materials also were furnished.” On May 20 th 1876, on petition of the Merchants’ Bank of Easton, a lien creditor, the court granted a rule to show cause why the lien should not be stricken off. On July 1st 1878, after argument, the court (Meyers, P. J.), made the rule absolute, in an opinion, inter alia, saying:
    “ The question then, is, have the plaintiffs complied in respect to said extra work and materials,'with the Act of 1826. This act provides, inter alia, ‘that every claim must set forth the amount or sums claimed to be due, and the nature and kind of the work done, or the kind and amount of materials furnished, and the time when the materials were furnished, or the work was done, as the case may be.’ On reading the statute, it would seem that the meaning of the language would scarcely admit of any doubt that nothing less than a full, precise and distinct statement of the nature or kind of work done, and the kind and amount of materials furnished, and the year, month and date when so done and furnished, would be a full compliance with the statute. On the question of the construction the books are full of cases. Many of them are apparently conflicting, and some of them difficult, if not impossible to be reconciled with each other. It must be observed, however, that some of the decisions are under the Act of 1845; others are raised on the trial, such trial being held a waiver of all defects; others on a motion to strike off the lien, or on demurrer, and still others on a special Act of Assembly applicable only to certain localities. I have examined with care, probably every Pennsylvania case having any direct or remote bearing on the question. * * * In some of them, reasons are given at considerable length and with great force as to the necessity for such certainty, viz.: to individuate the work and materials, by description, quantity and dates, so as to protect the owners of property and others interested against error and imposition. Sergeant, J., in Witman v. Walker, 9 W. & S. 186, in speaking of this provision of the statute, says: ‘ that the amount or sum claimed to be due and the nature or kind of- work done, or the kind and amount of materials furnished, and the time when the materials were furnished or the work was done, are, or ought to be within the peculiar knowledge of the claimant from his books or otherwise, and must be furnished by him when filing his claim. When dispute arises they are essential to the owner of the building, the purchaser and lien creditor to enable them to trace out the truth of the claim and guard against error or imposition. * * * Where, as often is the ease, a contractor carries on several dispersed buildings and work is done and materials furnished for them by the same mechanic or material-man, the enumeration in the claim of these items furnishes the best means of ascertaining how far the particular building in question is liable.’ This language is specially applicable to this lien. Considering that here is a special contract for $58,644.77 for work done and materials furnished, and while in the process of its erection extra work is done and materials furnished in and about the erection of the same building for $11,562.05, it will be seen at a glance how necessary it is that there should be strict compliance with the statute in specifying, as to said extra work and materials, the nature and kind of said work, the kind and amount' of materials, and the time the same was done and furnished. If in an ordinary case the law requires this to be done to prevent error or imposition, how much more is it necessary where a special contract for work and materials is in process of erection concurrently with' extra work done and materials furnished outside of the special contract in the erection of the same building ? How easily could a claimant introduce in his bill for extra work and materials, such work and materials which properly belongs to the special contract, if not compelled to keep an accurate account of the extra work and materials, the nature, kind and amount thereof and the time when done and furnished. Even that might fail to protect the oAvner and parties interested against error and imposition, but it is the best which the law-affords. It is true that many of the items as to kind and amount are sufficiently certain, Avhile others are manifestly defective and deficient, as for example, the item ‘ Bill Phillipsburg Iron Co. $794.30;’ ‘T. M. Lesher & Bro., Extra Bill, $3701.12;’ ‘Architect’s charges and fees, $3617.65,’ and others. There is no reason why the plaintiffs could not have complied with these simple requirements as to kind, quality, amount and time. Having failed to do so, we have come to the conclusion, somewhat doubtingly as to the law, and may also add reluctantly (as such claims are generally deemed meritorious), that so much of the lien relating to ‘extra work and materials,’ must be stricken from the record.”
    - The claimants took this writ, assigning for error the order of the court making the rule absolute.
    - Reeder Reeder, for plaintiffs in error.
    The claim of lien filed shows that it is comprised of two parts; the first being for a specific sum, the amount being fixed by a special contract and amounting to $53,644.77, and the other a bill for extra work and materials amounting to $11,562.05. ■ The order of the court below affects only the bill for extra work and materials. The first item in this'bill bears date February 19th 1873. No other item is dated. Attached to the bill and immediately folloAving the last item thereof, appears this sentence: “ The work was commenced on or about the 14th day of June 1872, and finished on the 28th day of June 1873, on Avhich day the last work was done, in Avhich time also said materials were furnished.” This is such a statement of time as sufficiently complies with the requirements of the Act of the 13th of June 1836: Driesbach v. Keller, 2 Barr 77; Hillary v. Pollock, 1 Harris 186; McCay’s Appeal, 1 Wright 125; Bayer v. Reeside, 2 Harris 167; MeClintock v. Rush, 13 P. F. Smith 204.
    There are charges for Avork done and materials furnished which often enter into a bill of particulars, for Avhich it is impossible to give a specific and exact date. Take, for instance, the item “ architects’ charges and fees, $3617.65” (which item is the most important one involved in this case). Work of this character begins cotemporaneously Avith the commencement of the building — indeed, often precedes any Avork whatever upon the building — and continues until the last nail is driven or the last brushful of paint applied. The architect’s services in superintending the structure are often unnecessary for continuous Aveeks, and then again are necessary every day. His charges are never regulated by the time Avhich he is required to be present during the erection of the building, but upon the actual cost of the structure. This is the custom of architects everywhere. How, then, can such charges be given a date in a bill of particulars, or how can such services be described other than as “architect’s charges and fees ?”
    Incident to nearly every contract for the erection of buildings for a specific sum is a bill for extra work and materials. This hill is. one springing out'of the original contract by reason of changes in, and alterations of, the special contract, made as the work progresses, at the suggestion of the owner of the building himself. By reason of the peculiar position of the contractor as owner of all the materials purchased for the work under the special contract, and both the material used in the extra work and under the special contract being taken from the common store, it is in most instances almost impossible, in some cases utterly so, for the contractor to ascertain the exact amount of material used or labor performed in the erection of the extra work until after the completion of the structure.
    Where a builder is erecting a building not under contract, it is easy enough to file a lien; he files his liens as he keeps his account for the work in detail as it is performed. But where the contract and the alterations or extra work are so connected that they are parallel to a certain extent, the same work being part under special contract and part in consequence of the alteration, how can he file his lien with the exactness required by the Act of 1836 ?
    For these reasons we contend that the law should regard the bill for extra work as a contract springing from the special contract and running parallel with it, and should not require for such bill the same exactness they would require in a claim where there was no contract.

      W. S. Kirkpatrick and Robert K Jones, for defendant in error.
    —The bank petitioned to strike off this defective lien; this was the proper course. Judgment-creditors are parties interested, and greater exactness and conformity is required against subsequent purchasers or encumbrancers than against defendants in mechanics’ liens: Lehman v. Thomas, 5 W. & S. 263; Howell v. Philadelphia, 2 Wright 471; Hahn’s Appeal, 3 Id. 409; McClintock v. Rush, 13 P. F. Smith 203; Lee v. Burke, 16 Id. 336.
    On its face the claim declares expressly that the bill for extra work and materials, $11,562.05, was incurred more than six months before filing, and it is therefore void. The claim is dated Dec. 26th 1873, but the lien was not filed until the 27th, and the averment “ within six months last past,” refers to the date of the claim, and not of the filing of lien: Ellice v. Paul, 2 Phila. R. 102. The “ extra bill” does not set out the time of doing the work or furnishing the materials, because February 19th 1873 is the date of only the first item, viz.: Bill of coal and carting same, $389.50.
    On the other hand, if February 19th is assumed as the time when the whole of the extra bill was incurred, then surely it is all barred by lapse of time. At the end of the lien the following occurs: “ The work was commenced on or about the 14th day of June 1872, and finished on the 28th day of June 1873, on w'hich day the last work was done, in which time said materials also were furnished.” There is no pretence that the work was done continuously, but, on the contrary, the lien expressly declares that it was not, nor under a continuous contract, for it is extra work, outside of and additional thereto. The statement above as to the commencement and end of the work, &c., is of no effect whatever as regards any of the items under the Act of 1836. It can refer only to the contract work. This court has so declared in Shields v. Garrett, 5 W. N. C. 120, a most carefully considered case. The Act of 1849 does not apply to our lien, but if it did there is no statement of time according to its provisions. The bill is confessedly for extra work, and the charges made in the lump. The beginning and ending of the whole work is given, not the beginning and ending of each charge, and this is a fatal defect: Shields v. Garrett, supra; Van Roden v. Campbell, 5 W. N. C. 126; Ellice v. Paul, supra; Smaltz v. Knott, 3 Grant 227. Many of the charges were not sufficiently' stated, such as the architect’s fees, and others.
    May 5th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

Extra work and materials done and furnished by a contractor during performance of his agreement, may be included in and constitute a part of his claim, if the claim be filed within six months after completion of the contract. Though outside the contract, they are so closely connected with it, that they have always been included with those done and furnished under the contract, in filing the claim. As shown by the learned judge below, the lien will be continued if the claim be filed within six months after the extra work was done, but more than six months after work on the contract was completed. He was clearly right in holding the converse. Including contract and-extra work in same lien subserves the interests of both contractor and owner, and it accords with such interests, as well as with the statute, that the claim may be filed within six months after the building is finished, even if one kind, in fact,-was not within six months of the filing.

This claim states that the work and materials were done and furnished within six months last past, and refers to the bill of particulars as setting forth the time when they were done. At the foot of said bill is the following: “ The work was commenced on or about the 14th day of June 1872, and finished on the 28th day of June 1873, on which day the last work was done, in which time said materials also were furnished.” ’ The lien was filed December ,27th 1873. Prefixed to the first item, in the bill for extra, is the date Febuary 19th 1878, and all others follow without mention of time. Doubtingly and reluctantly the court struck from the record so much of the lien as relates to extra work and materials, because of the plaintiff’s failure to comply with the statutory “requirements as to kind, quality, amount and time.”

In Bayer v. Reeside, 2 Harris 167, the claim set forth that the work and materials were done and furnished “ within, six months last past, to wit, between the 1st June 1848, and 1st April 1849,” and the bill of particulars was without date. The defendant demurred, assigning for cause that time was not well stated. No question was before this court other than the validity of the lien, and. the judgment was affirmed. True, it is said in the opinion, that after a trial on the merits, technical objections are disregarded, but the demurrer.was before trial and treated as raising the question as pointedly as would a motion to strike off. That decision has not been overruled. The date of a bill of particulars for materials “furnished within six months” was December 3d 1868, the time of filing; in the margin to the first item was June 9th, without any year; there was no date to any other item. After a sheriff’s sale of the premises, upon application of a subsequent lien-creditor, the court struck off the mechanics’ lien, which judgment was reversed. “All that is required is such certainty as will enable those interested to discover during what period the materials were delivered, or the work done so as to individuate the transaction: Calhoun v. Mahon, 2 Harris 56. “ It has been more .than once said we must not be hypercritical ” when scanning this species of lien and estimating its sufficiency.” Per Bell, J.: McClintock v. Rush, 13 P. F. Smith 203. Both these cases were under the Act of 1836. Shields v. Garrett, 5 W. N. C. 120, was by a sub-contractor, and the claim was sought to be .sustained under the Act of 1849, in force in Philadelphia and Chester counties. Hahn’s Appeal, 3 Wright 409, was a case under the Act of 1845, and relates to claims for work under contract.

In the light of Bayer v. Reeside, and McClintock v. Rush, it is manifest there is no departure from previous decisions in holding that no portion of this lien is defective because of insufficient setting out of time. The rule is certainty to a common intent, not precision, in statement. If the entire bill is to be deemed of the date, February 19th 1873, it cannot be struck out, for the contract work was done within six months of filing the claim. But it is unreasonable to say the whole bill is of that date, for on its face it is patent that the items of work and material were at different times. That really applies to the bill of coal, to the other items only by fiction.

The extra bill includes many things apparently within the contract for erection of the building, but where they are well stated they cannot be struck off on motion. The claimant may be able to show, at trial, by sufficient proofs, that they are without the contract and furnished at the owner’s request.

Does the phrase, “architect’s charges and fees” exhibit the nature and kind of work he did ? The claimants so affirm, resting on authority of The Bank of Pennsylvania v. Gries, 11 Casey 423. There the architect had a contract to perform labor in and about the erection of the buildings, of which this court said, “ This is labor, mechanical labor of a high order, contributing its proportionate value to the beauty, strength, and convenience of the edifice.” In saíne opinion it is said, “A mere naked architect, and who may be such without being an operative mechanic, who draws plans in anticipation of building, usually could hardly be supposed to be within the act which provides a lien for work ‘ done for or about the erection or construction of the building.’” In Price v. Kirk, C. P. Chester county, ante, page 47, it was decided that a claim by an architect, for preparing drawings and specifications for a building, is not the subject of a mechanic’s lien. Butler, P. J., gave conclusive reasons for the judgment, which has just been affirmed in this court. When an architect claims to have a lien for charges and fees he must show work done, for which the statute gives a lien, and such work is not shown by the name of his calling. Especially should the kind of work be set forth, distinctly, when it is claimed as extra by the contractor. It will hardly be presumed that he is entitled to a lien for fees for superintending and directing himself in the performance of his own contract.

The items, “bill of Phillipsburg Iron Co.” and “T. M. Lesher & Bro.’s extra bill,” contain no sign of any kind of work or material in the construction of the building. It is vain to surmise what they are for — the statute requires expression, not occultness.

The “ bill of coal and carting same” exhibits the kind of materials ; it is not a subject for mechanics’lien. Of like character is “extra boarding for Householder for extra time.”

Judgment reversed, except as to the following items, namely, “bill of coal and carting same, $489,50; “bill of Phillipsburg Iron Co., $794.30; “ extra boarding for Householder for extra time, $19.60; “T. M. Lesher & Bro.’s extra bill, $3701.12;” “architect’s charges and fees, $3617.65;” and as to these excepted items, affirmed, and procedendo awarded.


author: Mr. Justice Paxson

text:
    Griffith et al. versus Sitgreaves.
    1. Where a case is submitted to the court, under the Reference Law of April 22d 1874, the Supreme Court, on a writ of error, will hear and determine only questions of law arising upon bills of exceptions to the rulings of the judge, relating to the evidence or the law of the case, and will not go behind the findings of fact, except where'in a common-law trial before a jury, the assignments of error are such as can be heard and determined before this court. Jamison v. Collins, 2 Norris 359, followed.
    2. Under such a submission, the court found that certain notes in controversy were signed and delivered by the maker to the holders, while the maker was under duress of imprisonment, and duress per minas by reason of threats and acts done by one of the holders. It was contended that this finding should be reversed, on the ground that the question, whether the notes-were given under the pressure of duress or not, was a question of law upon the facts proved. Held, that the duress was a question of fact for the jury; that if this had been a common-law trial, it would have been error for the court to have withdrawn the question of duress from the jury, upon the ground that there was not sufficient evidence to submit to them, and the same rule must be applied where the facts are found by the court.
    3. Where a promissory note was obtained by duress of the maker, and endorsed in good faith, without any knowledge of the duress on the part of the endorser, in a suit by the holder, who was guilty of the duress, against the endorser, the latter may set up the duress of the maker as a defence to the action.
    April 4th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. •
    Error to the Court of Common Pleas of Northampton county: Of January Term 1879. No. 232.
    Assumpsit by Matthew H. Griffith, James Roberts and J. Milton Butler, partners, trading as Griffith, Roberts & Butler, against Theodore R. Sitgreaves, to recover $2903.68, the amount of seven promissory notes, of which defendant was the accommodation endorser for Robert C. Pyle, the maker. The defendant pleaded non-assumpsit. A jury trial was dispensed with, and the case was submitted to the court, Meyers, P. J., under the provisions of the Reference Law of April 22d 1874.
    The court, inter alia, found the following facts :
    “That Robert C. Pyle, on the 9th of January 1874, at the Metropolitan Hotel, in the city of New York, signed as maker seven promissory notes, dated New York, January 9th 1874, payable to the order of Theodore R. Sitgreaves, at the First National Bank, Easton, Pa.; said notes being respectively for $316.12 at four months; $318.92 at five months; $642.42 at six months; $322.52 at seven months; $324.32 at eight months; $652.36 at nine months, and $327.92 at ten months. That on the same day Pyle forwarded said notes by mail, enclosed in a letter addressed to Theodore R. Sitgreaves, Easton, Pa., defendant in this action, requesting him to endorse the same and return them to him by mail at said hotel. That on the 11th of January 1874, which was on Sunday, Pyle, while at said hotel, received by mail a letter from Sitgreaves inclosing said notes endorsed by him. That on the same day, viz.: January 11th 1874, Pyle delivered said notes to Matthew H. Griffith, one of the members of the firm of Griffith, Roberts & Butler, plaintiffs in this action. That the consideration of said notes was a then subsisting indebtedness of Pyle to said plaintiffs for a bill of ready-made clothing purchased by him in May 1873, or thereabouts. The said notes were duly protested at maturity.”
    “ That at the time said notes were signed and delivered by said Pyle to Matthew H. Griffith, one of the plaintiffs, the said Pyle was under duress of imprisonment and duress per minas, by reason of acts done and threats made by said Griffith, and the general conduct of said Griffith, and one Thomas Wheeler, commencing in the forenoon of the 9th of January and terminating in the afternoon of the 11th of January 1874. That the said notes were signed and delivered as aforesaid, under and by reason of said duress. That there is no evidence in this case from which the court can find as a fact that Pyle after the making and delivery of said notes, agreed Or promised to pay said notes, made any declarations or done any act by which he either waived the right or estopped himself or Sitgreaves to set up said duress as a defence in an action on said notes either against himself or Sitgreaves.
    The court having found the fact that the notes were signed and delivered by Pyle to the plaintiffs under and by reason of duress of imprisonment and duress per minas, held, that the same were absolutely void as against Pyle as maker and Sitgreaves as endorser in the hands of a person who was a party to said duress, or of a holder who had notice thereof before he received said notes. And that in an action on said notes by the plaintiffs against Sitgreaves, it was competent for the latter to set up as a defence the duress of Pyle, and especially so where the fact was found as in this case, that the duress was effected through the agency of one of the plaintiffs in this action.
    Exceptions were filed to this decision which the court overruled, when the plaintiffs took this writ, and, inter alia, made the following assignments of error:
    5. The court erred in its answer to defendant’s third point, which was as follows: The testimony establishing that duress, both of imprisonment and per minas, was exercised by Griffith upon Pyle in obtaining the notes in suit, the delivery of them to the plaintiffs under such circumstances conferred no title to them.
    Ans. “Affirmed.”

      6. In finding that the notes were given under duress.
    7. In not finding all the facts bearing upon the question of duress, and in not stating them “separately and distinctly.”
    8. In their answer to defendant’s fourth point, which point was as follows: It is an abuse of legal process to make use of it for the purpose of coercing a person to enter into obligations or to part with property under apprehension of its use.
    Ans. “Affirmed.”
    9. In their answer to defendant’s fifth point, which point was as follows: If the notes in suit were void against Pyle by reason of duress exercised upon him, they created no obligation upon the part of Sitgreaves as endorser.
    Ans. “ Affirmed.”
    10. In finding that Sitgreaves can defend against the payment of the notes because of the duress practised upon Pyle.
    11. In their answer to defendant’s sixth point, -which point was as follows: If the notes in suit w'ere void for duress of Pyle there are no facts in the case which operate to re-create a legal obligation on his part to pay the notes.
    Ans. “Affirmed.”
    12. In finding that Pyle would not be estopped by his conduct from setting up his alleged duress as a defence to the notes, and in finding that Sitgreaves is not likewise estopped by Pyle’s conduct.

      W. W. Schuyler, for plaintiffs in error.
    Does the evidence make but a case of duress ? The court below found as a question of fact that the notes in suit were obtained from Pyle by duress. We are aware of the decision of this court in Jamison v. Collins, 2 Norris 359, to the effect that this court “ will not go behind the findings of facts” of the court below; but submit that the question as to whether the notes were given under the pressure of duress or not, is a question of law upon the facts proved.
    If this case had been tried before a jury it would have been competent for the plaintiffs to put a point to the court that the evidence did not make out a case of duress, and a mistake on the part of the court in its answer to the point would undoubtedly have been error. We propose to argue this branch of the case as if the question of duress had been raised in that form, for a change of tribunal certainly makes no change in the character of the question to be decided.
    Sitgreaves cannot take advantage of Pyle’s alleged duress: Huscombe v. Standing, Cro. Jac. 187; Robinson v. Gould, 11 Cushing 55; Mantell v. Gibbs, 1 Brownlow 64; McClintick v. Cummings, 3 McLean 158; Thompson v. Lockwood, 15 Johns. 256; Steuben Co. Bank v. Mathewson, 5 Hill 249. ‘In the cases of Osborne v. Robbins, 36 N. Y. 365; Strong v. Grannis & Brown, 26 Barb. 122, and Fisher v. Shattuck, 17 Pick. 252, relied upon by the court below, the instruments sued upon were void and would have been so held without'invoking the principle of duress. In the present case the note was barred upon a valid consideration.

      H. Green, for defendant in error.
    The question of duress was merely a question of fact, and the finding of the court will not here be disturbed. The action being upon an endorsement of Pyle’s note, if that note was void on account of the duress of Pyle, the note itself being destroyed as the obligation of Pyle in the hands of these plaintiffs, there can be no liability on the part of Sitgreaves to pay it to them. It is certainly not reconcilable with reason or law that in a case like the present, where the instrument sued on, being a promissory note endorsed by the defendant, was obtained by duress of the maker, and endorsed by the defendant in good faith without any knowledge of the duress that the payee, who was guilty of the duress, and is therefore not an innocent party, can recover against the endorser.
    The contract of the principal debt or is void — the instrument as to him is a nullity. In the hands of these plaintiffs it is absolutely discharged as to him. Yet we are told these same plaintiffs may nevertheless compel the innocent endorser to .pay this void obligation. Thus the instrument being-void as to the principal by the act of the holders, the surety or endorser after he has been compelled by the law to pay it, is unable to recover his money from the principal. And if the law, out of regard to an ancient dogma, that the defence of duress is only available by him on whom the duress is practised should hold, in this enlightened day, that a recovery may be had in such' circumstances, then it will result that if a band of cut-throats can capture the person of a citizen, and compel him through .fear of his life to write a note and send it by mail to a friend and procure his endorsement of it, a recovery may be had on such endorsement by the criminal to whom it was given.
    The cases cited by plaintiffs in error are clearly distinguishable from this, and on the mere question of authority we append the following: Strong v. Grannis, supra; Osborn v. Robbins, supra; Fisher v. Shattuck, supra; Parsons on Bills and Notes 244; Brandt on Suretyship and Guarantyship 172.
    May 7th 1879.
   Mr. Justice Paxson

delivered the opinion of the court

In Jamison v. Collins, 2 Norris 359, and in one or two subsequent cases not yet reported, it was held that in a writ of error under the Reference Law of April 22d 1874, Purd. Dig. 1939, Pamph. L. 109, this court can hear and determine only questions of law arising upon bills of exceptions to the rulings of the judge relating to the evidence or the law of the case. It will not go behind his findings of fact, except wnere in a common-law trial before a jury the assignments of error are such as can be heard and determined before this court.

In the case in hand, a trial by jury was dispensed with by agreement under the Act of 1874. The court found the fact that the notes in controversy were signed and delivered by Pyle, the maker, to the plaintiffs, while thé said Pyle was under duress of imprisonment and duress per minas by reason of threats and acts done by Matthew H. Griffith, one of the plaintiffs.

We are asked to reverse this finding upon the ground that the question as to whether the notes were given under the pressure of duress or not, is a question of law upon the facts proved. We think it plain that duress is a question of fact for the jury. Ifi this had been a common-law trial, it would have been error for the court to have withdrawn the question of duress from the jury upon the ground that there was not sufficient evidence to submit to them. We must apply the same rule where the facts are found by the court. We have nothing to do with the weight of the evidence, and have no pow'er to grant a new trial because we think the finding might and perhaps ought to have been the other way. There was evidence that Pyle was practically restrained of his liberty without artest under any legal process, and that the process of the law was abused for the purpose of obtaining the endorsed notes in controversey.

We are next to consider the question whether the defendant, who is sued as endorser of the notes, can take advantage of the duress practised upon the maker. In Huscombe v. Standing, Cro. Jac. 187, the defendant having been sued on a bond, on which he was surety for one Street, entered a plea that the bond was obtained by duress of his principal. The plaintiff demurred to this plea, and, without argument, it was held that “ it was not any plea for the surety, although it had been a good plea for the said Street; for none shall avoid his own bond for the imprisonment or duress of any other than himself. The same doctrine is recognised in Bacon’s Abridg., title Duress A., and 2 Rolle’s Abridg. 124. The later authorities are conflicting, with no adjudicated case iñ Pennsylvania. Mantel v. Gibbs, 1 Brownlow 62; Robinson v. Gould, 11 Cush. 55; Plummer v. The People, 16 Ill. 358; McClintick v. Cummins, 3 McLean 158, and Thompson v. Lockwood, 15 Johns. 259, were cited by plaintiffs as sustaining the doctrine that the duress which will avoid a contract must be offered to the party who seeks to take advantage of it. On the other hand, Strong v. Grannis, 26 Barb. 122, Osborn v. Robbins, 36 N. Y. 365, and Fisher v. Shattuck, 17 Pick. 252, were cited on behalf of the defendant as sustaining the opposite view. I have examined these cases with some care, and do not regard them as controlling authority on either side. They depend very much upon the pleadings or their special circumstances. ' I have no doubt of the correctness of the general principle laid down in the older cases that duress, to be a good plea, must be offered to the person who seeks to take advantage of it. As in the case of two joint and several obligors in a bond, a plea by one defendant of duress practised upon the other would be a bad plea, for the reason that if his signature was obtained without duress, of what consequence is it to him that his co-obligor signed under duress ? In all the cases cited, the duress was either upon the party seeking to avoid the instrument sued upon, or it was known to him. Thus, in Robinson v. Could, supra, the action was on a note made by A. to B., to procure the release of C. from an unlawful arrest, brought about by B. Here A. entered into an independent contract, not as surety, but as principal, with a full knowledge of all the facts, and as the court said, upon a sufficient consideration: “ The case, therefore,” in the language of the court, “ is exactly this: A promise by the defendant, upon a valid consideration, fully assented to by him without coercion or restraint of any kind.” McClintick v. Cummins, 3 McLean 158, decides nothing that affects the case in hand. The court said: “ It is not necessary to decide this question (the duress), as, from the facts, it does not appear that the imprisonment of Johnson was unlawful, or that he was detained until he executed the notes.” Plummer v: The People, supra, was a suit upon a recognisance against the principal and the sureties. The principal was committed by a magistrate in the state of Illinois for a larceny committed in another state. Afterwards, the magistrate, in the absence of the accused, and without proof, made out a second mittimus for .an offence committed within the state. The accused, to relieve himself from confinement, gave the recognisance in question. The defendants pleaded duress, and the court below gave judgment in their favor upon the plea. ■The court above affirmed the judgment as to the principal, and reversed it as to his sureties, saying: “I do not hold that the same facts might not also have been made available by the sureties, at th.e proper time, and in a proper form of-plea, but they cannot avail themselves 'of them by a plea of duress of their principal.” This case recognises the doctrine I have already suggested, that duress, as a plea, is bad if the duress set up was upon some person other than the party pleading it. It also appeared that the sureties had knowledge of the duress when they signed the recognisance. This was also the case in Strong v. Grannis, supra, cited by the defendant. Here the action was against two persons as makers of a promissory note; the defence set up was that the note was executed under duress of imprisonment of one of the makérs, and to procure his release therefrom, and was signed by the other as his surety. The court held that the surety might avail himself of the duress. This was a case in the Supreme Court. Osborn v. Robbins, supra, was in the Court of Errors and Appeals. The note was given by a son, with his father as surety, in settlement of an arrest upon the charge of rape, under circumstances that indicated an abuse of legal process, for the purpose of oppression. The court held that the surety could avail himself of the duress. This case is not authority to the extent claimed for it by the defendant, for the reason that the surety was the father of the defendant. This is one of the exceptions recognised in Huscombe v. Standing, and most of the old authorities.

It by no means follows that because duress of another is not a good plea, and that in some instances it may not even avail as a defence, that it cannot be set up successfully in any case. Had the defendant, after endorsing these notes, passed them to the plaintiffs and received the money therefor, it is very clear he could not set up the defence of duress of the maker; so if he had endorsed them with notice of the duress, or if the notes were in the hands of an innocent third party for value. In these and many other instances that might be named, the defence referred to would, for obvious reasons, be unavailing. The case in hand, however, differs materially from them and from all the cases cited. Here the defendant was the surety of the maker, nothing more, and defends under the broad plea of non assumpsit. The form of the transaction is not material, so long as the contention is between the original parties. The defendant’s contract is to pay the notes, if his principal fails to do so; and he may be proceeded against immediately upon such failure. But upon payment of the money he has his remedy over against his principal. It is a recognised doctrine in the law of surety, that whatever discharges the principal debtor, also discharges the surety. There are exceptions to the rule, as where one had signed a joint and several note with a married woman as surety : 1 Pars, on Bills and Notes 244. Nor will this rule apply to cases in which a surety is required, for the very reason that the principal may have a defence that will defeat the claim against him.

In these and the like cases, the surety knows when he binds himself that he has no remedy over. He is not, therefore, misled. The defendant endorsed the notes without any knowledge, or anything to put him upon inquiry, of the duress practised upon his principal. The result will be, if a recovery is had against the defendant, he will have no redress against the maker, and this by reason of the duress upon the maker, the act of the plaintiffs. He is therefore directly injured by it, and has a right to defend upon that ground. Had he signed the notes with knowledge of the duress, it would have been his own folly, and the consideration being good, the plaintiffs would have been entitled to recover. But they made the mistake of keeping the maker a quasi prisoner in New York by threats of an arrest, whilst the notes were sent to the endorser for his signature, thus depriving him of his remedy over against his principal. In doing this, the plaintiffs overreached themselves.

We see nothing in the case to warrant the conclusion that the defendant was estopped by the subsequent conduct of Pyle, the maker, from setting up the duress.

As the case must be affirmed under the foregoing views of the law, it is needless to discuss the Sunday question. It is an interesting subject, but may well be deferred.

The judgment is affirmed.

CASES IN THE SUPREME COURT OF PENNSYLVANIA. MIDDLE DISTRICT — HARRISBURG 1879.


text:
    Boyd versus Peach Bottom Railway Co.
    1. The act'of February 19 th 1849, regulating railroad companies, provides that where subscriptions are made to the capital stock of a railway company, previous to the issue of letters patent, no subscription shall be valid, unless the party making the same shall, at the time of subscribing, pay $5 on each and every share for the use of the company. Held, that giving a noté for a subscription was not a payment within the meaning of the law. Held, further, that such a subscriber, who had taken no other part in the affairs of the company, was not estopped from setting up the absence of such payment as a defence to an action of assumpsit for the subscription.
    2. A subscription to the stock of a public corporation, made before letters patent are issued and an organization effected, must be considered absolute and unqualified, and any condition attached thereto is void. Commissioners have no authority to raise conditional subscriptions. If they do, the sub scription is valid and binding, and the condition null and void.
    May 6th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Woodward, Trtjnkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1879, No. 58.
    Assumpsit by the Peach Bottom Railway Co. against Samuel Boyd, on a subscription to the capital stock of said company. The company was incorporated by the Act of March 24th 1868, Pamph. L. 778, with all the powers and subject to all the restrictions prescribed by the'act regulating railroads, enacted February 19th 1849. The proviso to the first section of the latter act is as follows:
    “ Provided, always, That no subscription for such stock shall be valid unless the party or parties making the same, shall, at the time of subscribing, pay to the said commissioners $5 on each and every share subscribed, for the use of the company.”
    Commissioners were named in the act of incorporation to open books, receive subscriptions and organize the company. At the trial the plaintiff offered in evidence a subscription book, in form as follows:
    “We, the undersigned, agree with one another and bind ourselves, our heirs, executors and administrators to the Peach Bottom Railroad Company to the number of shares of stock set opposite our respective names in the capital stock of said company, provided the road be constructed upon what is known as the Northern route, connecting with the Philadelphia and Baltimore Central Railroad, at Oxford, Chester county, and passing near Hopewell, Pine Grove, White Rock, King’s Bridge, Smedley’s Mill, Centreville, Chestnut Level, and along Fishing Creek to its mouth; and provided these subscriptions be spent on the east side of the Susquehanna river. * * * Samuel Boyd, two shares.”
    There was no evidence to show that the defendant had signed his name thereto. The signature produced was in ink.
    John A. Alexander, the treasurer of the qpmpany, called by the plaintiff, testified: “The name as it first appeared there was in lead-pencil; there were a number of names written in lead-pencil, and they were becoming defaced by carrying the book in my pocket, and I afterwards wrote them in ink over the pencil mark.” He further said: “I went to Mr. Boyd’s on the 29th of October 1870, and told him that, to secure our letters patent, it was necessary for the commissioners to certify to the governor that ten per cent, of the subscriptions were paid in; that we were not collecting any money, and, as the work had not yet begun, we were taking demand notes; Mr. Boyd gave me his demand note for ten per cent, of his two shares of stock, and I gave him a receipt for the same.
    This note was delivered by Mr. Alexander to the commissioners, and they afterwards certified to the governor a list of subscribers, including the name of Samuel Boyd for two shares. Letters patent were issued to the company, in which he appeared for two shares. Whether Samuel Boyd wrote the lead-pencil name or not was not shown. He never paid any money on this alleged subscription, nor did he ever pay said note or any part of it. The subscription produced contained a condition that the road should be built on a particular route. It was not built on this route, but on an entirely different one. The original route would have been of great advantage to Boyd, while the one on which the road was built, was of no benefit‘to him.
    The defendants offered no evidence, but asked for a nonsuit, which the court, Patterson, J., refused, and directed a verdict for plaintiff. The defendant took this writ, alleging that the court erred: 1. In overruling the motion for a nonsuit, and 2, in directing the jury to find for plaintiff.

      J. Hay Brown and H. M. North, for plaintiff in error.
    The alleged subscription was invalid because it was not shown to have been in writing. Such a subscription must be in writing and cannot be established by parol evidence: Pittsburgh and Steubenville Railroad Co. v. Gazzam, 8 Casey 340. The alleged subscription was a conditional one, and the condition was violated by the company; the contract is therefore void. The Act of 1849 requires a payment of $5 on every share, in money. A payment with a demand note is not a compliance with the act, and such a contract cannot be enforced: Hibernia Turnpike Co. v. Henderson, 8 S. & R. 219; Leighty v. Susquehanna & Waterford Turnpike Co., 14 Id. 434; Kishacoquillas & Centre Turnpike Co. v. McConaby, 16 Id. 140. The doctrine of estoppel does not apply here, for the defendant was not a commissioner named in the act, was not associated with the commissioners, took no part whatever in procuring subscriptions or inducing others to subscribe; never acted as an officer or agent of the corporation or took any part in its organization, nor attended any meeting of stockholders.

      Wm. Aug. Atlee and George Nauman, for defendant in error..
    —Subscriptions before letters patent are to be treated as unconditional, no matter what collateral stipulations are attached to them : Bedford Railroad Co. v. Bowser, 12 Wright 34; Railroad Co. v. Biggar, 10 Casey 455; Caley v. Phila. and Ches. Railroad Co., 30 P. F. Smith 367; Ligonier Valley Railroad Co. v. Williams, 35 Leg. Int. 1878, p. 40. The plaintiff cannot escape because he did not pay $10 to the commissioners. He gave his note and took a receipt, so that his name could be certified to the governor as that of one who had paid, and he is thus estopped from setting up -this defence: Clark v. Monongahela Nav. Co., 10 Watts 364; Plankroad Co. v. Brown, 1 Casey 160; Pittsburgh and Connellsville Railroad Co. v. Stewart, 5 Wright 57; Bedford Railroad Co. v. Bowser, 12 Id. 34; Bavington v. Pittsburgh and Steubenville Railroad Co., 10 Casey 358; Graff v. Same Railroad Co., 7 Id. 489; Grayble v. Turnpike Co., 10 S. & R. 269; Hays & Black v. Pittsburgh and Steubenville Railroad Co., 2 Wright 88; Garrett v. D. & M. Railroad Co., 28 P. F. Smith 468.
    June 16th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The commissioners appointed to open books and receive subscriptions to the capital stock of the defendant in error were public agents, clothed with limited powers and duties of a purely ministerial character, clearly defined by law. By the Act of March 24th 1868, incorporating the company, it was invested with all the powers and made subject to all the provisions and restrictions prescribed by the general Act of 1849, regulating railroad companies.. One of these provisions is that no subscription shall be valid, unless the party making the same shall, at the time of subscribing, pay the commissioners $5 on each and every share, for the use of the company. The language is plain and emphatic, and the manifest object of the requirement was to protect the public against fictitious . corporations, with capital stock subscribed perhaps by irresponsible persons, and not a dollar thereof paid or intended to be paid in. The commissioners, acting as ministerial agents of the public, before the issuing of letters patent, had no authority whatever to dispense with the actual payment of the required sum. Giving a note for the amount was not payment within the meaning of the law. In Leighty v. The Turnpike Co., 14 S. & R. 434, under a similar charter, it was held that actual payment in money was required. The doctrine of that case, for reasons given at length in the opinion, is sound and should be adhered to. A demand note, such as was given by the plaintiff in error in this case, is not money; it is only a promise to pay money at a future time, and perhaps may never be complied with.

The testimony was quite sufficient to establish the fact of defend- . ant’s subscription, on which the suit was based. Afterwards, when the book was presented to him by Mr. Alexander, he impliedly admitted the subscription, by giving his note for the ten per cent, which should have been paid in cash; but this was before the letters patent were obtained.

The conditional feature of the subscription furnished no ground of defence. It is scarcely necessary to repeat what has been so often said, that a subscription to the stock of a public corporation, made before letters patent are issued and an organization effected, must be considered absolute and unqualified, and any condition attached thereto void. Commissioners have no authority to receive conditional subscriptions. If they do, the subscription itself is valid and binding, and the condition null and void: Caley v. The Railroad Co., 30 P. F. Smith 367.

The only, available defence presented in the court below was the non-payment of the ten per cent, required by the act; and-it was-technical, rather than meritorious. Aside from making the subscription, in the first instance, and afterwards giving his note for the ten per cent., when called on by the collector, the plaintiff in error appears to have been entirely passive. If he had acted as commissioner or director, or participated in stockholders’ meeting, or performed any act recognising his membership of the company, or tending to fasten liability on other subscribers, he should be held to the payment of his subscription, notwithstanding the failure of the commissioners to exact the payment required by law to make it valid and binding; but he appears to have stood alo.of and did nothing by which he was estopped from insisting on the technical defence which he has seen fit to interpose. Legally he is entitled to the benefit of it; and the second and third assignments of error must be sustained.

Judgment reversed.


text:
    Wiley’s Appeal. Andrews’s Assigned Estate.
    An administratrix sold the real estate of her decedent, in pursuance of an order of the Orphans’ Court, to pay debts. There were certain liens upon the property. The sale was for cash, but for the conyenience of the parties new judgment bonds were given by the purchaser to these lien creditors, for the amount of their respective claims. Each of the judgment bonds thus given contained a recital that they were for the purchase-money of the property sold. A certain amount remained charged on the land, and another judgment was given to the guardian of the minor children of the decedent to secure their interest. The purchaser made an assignment for the benefit of creditors, and upon a sale of the real estate by the assignee, claimed his exemption of §300 out of the proceeds, which the court allowed. Held, that this was error.
    May 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trünkey and Stebretx, JJ.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1879, No. 24.
    Appeal of William B. Wiley, guardian of the minor children of Andrew Stewart, deceased, from the decree of the court making distribution of the assigned estate of Henry Andrews. The following case was stated for the opinion of the court:
    That Fannie Stewart, widow and administratrix of Andrew Stewart, deceased, by deed of April 1st 1875, in pursuance of an order of the Orphans’ Court of Lancaster county (to pay the debts of said deceased), did grant and’ confirm to Henry Andrews, his heirs and assigns, a certain dwelling-house and lot of ground, situated on the southwest corner of West Orange' and Mulberry streets, in the city of Lancaster, subject to a certain ground-rent and to $348.51, dower of said Fannie Stewart.
    That a part of said debts, for which the real estate aforesaid was ordered to be sold by the Orphans’ Court aforesaid, consisted of a judgment entered on a bond, with a warrant of attorney to confess judgment, in the Court of Common Pleas of said Lancaster county, for $1500, held by Abraham Denlinger, which was a lien on said premises at the time of said Andrew Stewart’s death.
    Another part of said debts, for the payment of which the said real estate was sold, consisted of a bond, with warrant of attorney to confess judgment (but on which judgment was never entered), held by Catharine Stewart against said Andrew Stewart for $450.
    That on the 5th of April 1875, a judgment on a bond, with warrant of attorney, &c., was entered against said Henry Andrews in favor of said Abraham Denlinger, for $1500. That this judgment was entered for the purpose of securing the same money that had been secured by the above-mentioned judgment, in favor of said Abraham Denlinger against said Andrew Stewart.
    That on April 6th 1875, another judgment was entered on a bond, with a warrant of attorney, &c., against said Henry Andrews, in favor of William B. Wiley, Esq., guardian of the children of said Andrew Stewart, deceased, for $687.02, which was two-thirds of the balance of the proceeds of the sale of the real estate of said Andrew Stewart, deceased, remaining after payment of his debts, and which money was, in fact, never paid by said Henry Andrews to said administratrix, but said William B. Wiley, Esq., guardian, as aforesaid, took said Henry Andrews’s judgment as .security for the same, and it formed part of. the consideration of the said purchase.
    And that on April 7th 1875, another judgment was entered on a bond containing warrant of attorney, &c., against said Henry Andrews, in favor of said Catharine Stewart, for $450. That this judgment was entered to secure the payment of said sum of $450 above mentioned, which said Andrew Stewart owed to said Catharine Stewart; that said sum of $450 was, in fact, never paid by said Henry Andrews to said administratrix, but said Catharine Stewart took said judgment, as aforesaid, and it formed part of the consideration of the said purchase.
    That each of these three judgment-bonds, thus given by the said Henry Andrews, aforesaid, contains the following clause, viz.: “ The same being for purchase-money on house and lot of gi’ound, southwest corner of West Orange and Mulberry streets, Lancaster, Pennsylvania.”
    That on October 25th 1877, a fi. fa. was issued on said judgment in favor of William B. Wiley, Esq., under which the sheriff levied on all the personal pi’operty of said Henry Andrews, consisting of his household furniture and store goods. That said defendant claimed the benefit of the Act of Assembly of April 9th 1849, exempting property to the value of $300 from levy and sale under execution, and that under the provisions of said act all of said defendant’s personal property was appraised at the sum of $120, and set apart for him, which property said defendant retained, and has ever since used and enjoyed as his own.
    Tha.t on October 25th 1877, said Henry Andrews and wife executed a deed of voluntary assignment of all the property and estate of said Henry Andrews, in trust for the benefit of the creditors of said assignor; which deed contains the following clause: “ Excepting and reserving real or personal estate to the value of $300, under Act of April 9th 1849.”
    That on November 10th 1877, the Court of Common Pleas of said Lancaster county, granted an order of sale under Act of 17th of February 1876, to said assignee, in pursuance and by virtue of which order he sold said premises, on which said three several judgments were liens, consisting of the house and lot of ground hereinbefore mentioned, on December 4th 1877, for $2800, subject to the ground-rent and dower, as above mentioned.
    That said Henry Andrews, the assignor aforesaid, now claims the balance of his $300 exemption out of the proceeds of the real estate aforesaid, that is to say: such a sum, out of said proceeds, that if added to said sum of $120, the amount at which his said personal property was appraised, would together make $300. The judgments referred to in this case stated are to be considered as parts of it.
    If the court be of opinion that said Henry Andrews is entitled to said proceeds, being the sum of $180, then the court to order distribution accordingly; but if not, then the court to decree accordingly.
    In an opinion, the court, Livingston, P. J., inter alia, said: “Are these judgments, judgments for purchase-money ? What constitutes a judgment for purchase-money under our statute? In Nottes’s Appeal, 9 Wright 362, Woodward, J., says: ‘Liens for purchase-money may be by mortgage, judgment, or by executory articles of bargain and sale, but they are always created in favor of vendors, and exist for their protection and benefit, or that of their assignees or other legal representatives. The possessors of such liens are a well-defined class of creditors. They are those who have parted with their lands in consideration of the price agreed to be paid. The sound principle (said he), was, however, asserted in Stansall v. Robert, 13 Ohio R. 148, that a third person advancing money to the purchaser of real estate cannot claim a vendor’s lien.’ It is argued that this decision is overruled by, or in conflict with the later decision in Ulrich’s Appeal, 12 Wright 489. We do not so understand it. * * * In the case before us the administratrix of the estate of Andrew Stewart, deceased, under and by virtue of an order of the Orphans’ Court, was the vendor of the real estate. Henry Andrews was the purchaser. • These judgment-creditors cannot claim, in the character of vendors, they never had any interest in or title to the property sold. They are, therefore, the loan-creditors of Henry Andrews, and nothing more; their liens are the liens of third parties loaning Henry Andrews money, to pay for real estate purchased by him from the administratrix of the estate of Andrew Stewart, deceased. And the fact that they have called the money loaned, in each bond, the purchase-money of a house and lot therein designated, to which they never had title, never sold or conveyed, does not make it so. Said judgments, in our opinion, not being liens for the purchase-money of real estate, do not prevent or preclude Henry Andrews, the assignor, from claiming and receiving out of the funds, in the hands of the assignee, the sum of $180, the balance of the $300 reserved by him in his assignment.
    In accordance with this, our judgment, we do, therefore, direct, order and decree, that in the distribution of the funds in the hands of the assignee, he shall first pay to Henry Andrews the balance of his claim, excepted and reserved in the deed of assignment, under the Exemption Law of April 9th 1849, to wit: the sum of $180, and that he shall distribute the balance of the funds among the judgment-creditors, in the order of their priority of lien at the time of the assignment.”
    From this decree this appeal was taken.

      •I. Hay Brown, for appellant.
    The children of Andrew Stewart were not strangers lending money to Henry Andrews to pay for the property purchased. They were the owners of the property sold, the vendors of Henry Andrews, so to speak; and all that Nottes’s Appeal, 9 Wright 361, and similar cases decide, is “ that a third person, advancing money to the purchaser of real estate, cannot claim a vendor’s lien.” If they as the former owners of the property sold, allowed, through their guardian, their share of the purchase-money to remain in the property sold, the judgment given by Henry' Andrews, the vendee, to secure the payment of the same, is in every sense of the word a judgment for purchase-money.
    In Ulrich’s Appeal, 12 Wright 489, judgments not given directly to the vendor, but to strangers who advanced money to pay for the property, were found.by the court to be for purchase-money, and as such it was held that the defendant could not claim the benefit of the Act of April 9th 1849, against them.

      J. B. (rood and M. Brosius, for appellee.
    Liens for purchase-money are always created in favor of vendors, and for their protection. The possessors of such liens are a well-defined class of creditors. They are those who have parted with their lands in consideration of the price agreed to be paid: Nottes’s Appeal, 9 Wright 361; Stansell v. Robert, 13 Ohio R. 148; Dungan v. Am. Life Insurance Co., 2 P. F. Smith 253.
    The children of Andrew Stewart, deceased, are not vendors in this case. The real estate of their father descended to them heavily encumbered with liens. It was the duty of the administi-atrix to sell: Act of 24th February 1834, Pamph. L. 76; Purdon 427, pi. 110. The administratrix who sold under- order of court for the payment of debts was the vendor.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

We need not discuss the question whether the judgment of the appellant against Henry Andrews for. $687.02, is a purchase-money judgment as to other lien-creditors. We have only to consider it as between the parties. The judgment is clearly a part of the consideration Andrews was to pay for the real estate. The administratrix sold' the latter in pursuance of an order of the Orphans’ Court, for the sum of $3800. There were certain liens upon the property; one in favor of Abram Denlinger for $1500, and one in favor of Catharine Stewart for $450. The sale was for cash, but for the convenience of the parties, new judgments were given by the purchaser to Denlinger and Catharine Stewart for the amount of their respective claims; $343.51 remained charged upon the land for the benefit of the widow, and the judgment of $687.02 was given to the appellant as guardian of the minor children to secure their interest. Andrews, the purchaser, having made an assignment for the benefit of creditors, claimed, and was allowed $120' exemption out of his personal estate, and now demands the balance of the exemption, $180, out of the proceeds of the sale of the real estate. To allow it would reduce the fund applicable to the plaintiff’s judgment by a corresponding amount.

That there is no equity in his claim is manifest. He has not paid for the property out of which he claims the exemption, and he seeks to get it from the parties to whom the purchase-money belongs, to wit, the minor children of Andrew Stewart, deceased, the intestate, whose property was sold and purchased by Andrews. There is no exemption as to purchase-money creditors, the proviso expressly excepting such debts from the operation of the enacting clause of the statute: Nottes’s Appeal, 9 Wright 361; Ulrich’s Appeal, 12 Id. 489. The appellee contends, however, that the appellant’s judgment was not for purchase-money. In this he is flatly contradicted by his own bond, which contains this clause: “The same being for purchase-money on house and lot of ground, southwest corner of West Orange and Mulberry streets, Lancaster, Pennsylvania.” While it may be that in a contest between lien-creditors, this statement in the bond might not amount to much,‘yet, as between the parties it is important. As to them, it is an agreement that the judgment shall have the force and effect of a purchase-money lien. We are of opinion that it amounts to an estoppel, and that the application of this principle meets the justice of the case.

The decree is reversed at the cost of the appellee; and it is now ordered and decreed that the said sum of $180 be distributed to the lien-creditors in the order of their priority.


author: Mr. Justice Meeour

text:
    Bausman’s and Herr’s Appeal.
    1. The general right of an assignor to except and reserve from an assignment for the benefit of creditors, property to the value of $300, is undoubted. He cannot do so, however, out of land to the injury of one holding a lien'for the purchase-money, or a judgment-lien in which the exemption from execution is waived. His claim must be restricted to some property which he owned, or in which he had an interest at the time of the assignment, or at the furthest to the proceeds of that property sold. It cannot extend to money made by the assignee’s care, management ana use of the assigned property.
    2. Assignees received rent for the use of a farm, after an assignment, not on a term existing at the time of the assignment, but on a letting afterwards. They also sold the land, but the sum realized therefrom was insufficient to pay the judgment-liens for purchase-money. There was a reservation of the $300 exemption in the assignment. The assignor claimed it out of the rents. Held, that the claim could not be allowed. '
    May 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1879, No. 6.
    Appeal of Henry D. Bausman and Diller P. Herr, assignees, from the decree of the court, in the distribution of the assigned estate of Henry Lorah and wife.
    Henry Lorah and wife, executed and delivered a deed of voluntary assignment for the benefit of creditors, on the 7th day of April 1876, to Henry D. Bausman and Diller P. Herr. The property assigned, consisted of various articles of personal property, appraised at $89, the rent of a farm appraised at $259, and the real estate appraised at $8,297.50, which was afterwards sold for $6620. Henry Lorah had bought this farm, subject to a mortgage of $5500, from John A. Hohman, to whom he gave a judgment for the purchase-money.
    In the said deed of assignment to Henry D. Bausman and Diller P. Herr, Henry Lorah and wife expressly reserved and excepted the benefit of the Exemption Act of April 9th 1849. The assignees paid to Lorah the $300 reserved in his deed of assignment, and in the account they filed, claimed credit for such payment in full, as no specific articles had been claimed by or appraised to the assignor. To this item of credit, John A. Hohman filed exceptions. An auditor was appointed to pass upon the exceptions and make distribution, who in his report allowed a credit for said payment as much as the personal property amounted to, including the rent, less the proportionate share of the expenses, but surcharged said assignees with the balance of the $300, and disallowed any payment on said exemption from the money realized on the sale of the real estate.
    Exceptions were filed to the auditor’s report by the assignees, because of this surcharge, and by John A. Hohman, because the auditor had allowed any credit for said payment. The exceptions being argued, the courf, Patterson, J., surcharged the assignees with the whole amount of the $300 claimed in their account, less' $39, the appraised value of the said several articles of personal property.
    From this decree the assignees took this appeal.

      A. O. Newpher, for appellants.
    The auditor was clearly right in applying said rental to the payment of the exemption claimed by the assignor. The rental was personalty, had been appraised and its value fixed, and the assignees were charged with it in the inventory and were bound to account for it. It was thus assets in their hands to be applied to all the purposes of the assignment, and as it was not realty Hohman’s judgment for purchase-money, was no lien upon, and he had no preference to it over any other claimant upon the estate. The claim of exemption under the Act of April 9th 1849, inserted in deeds of assignment, is a technical reservation: Milford v. Shirk, 2 Casey 473; Knight v. Waterman, 36 Id. 257. A reservation in a deed may include and provide for things not in esse, as rent, &c.: Whitaker v. Brown, 10 Wright 197. Even if it was not assets at time of the assignment, or appraisement, but accrued to the assignor or his assigned estate afterward, he can claim his exemption out of it: Peterman’s Appeal, 26 P. F. Smith 116.

      Daniel Gf. Baker, for appellee.
    A debtor cannot acquire a right to the exemption by assigning his real estate for the benefit of his creditors, which he would not possess if it were sold on execution. His reservation in his deed of assignment does not give any new rights of exemption, or extend or enlarge those he had before, and imposes no duty on his assignees to allow him his exemption in cases and out of property in which the law gives the debtor no right to claim it, but expressly denies him that right. This rent could not pass by the assignment, because it did not then exist; it came into being after that time, and being a fruit and product of the real estate which was assigned, it was assets in the hands of the assignees, dist2’ibutable among the general creditors, which was the disposition made of it by the court below.
    May 19th 1879.
   Mr. Justice Meeour

delivered the opinion of the court,

The appellants are assignees in trust for the benefit of creditors. The property assigned was mostly land; the personalty being of the value of $39 only. The assignor excepted and reserved from the operation of the assignment, “such an amount of property, real and personal, as is by law exempt from levy and sale on execution, and distress for rent by virtue of the Act of 9th April 1849.” The appellants received rent for the use of the farm after the assignment, not on a term or lease existing at the time cff the assignment, but on ' a letting afterwards. They also sold the land, but the sum realized therefrom was insufficient to pay the judgment-liens for purchase-money in favor of the appellee. As the assignor could not hold any portion of the land against such a lien, he could not claim any of the proceeds to its prejudice. The other question is whether, by virtue of the Exemption Law, he can claim the money received by the assignees as rent? We are clearly of the opinion he cannot. The general right of the assignor to except and reserve from the assignment property to the value of $300, is undoubted. He may not do so out of land to the injury of one holding a lien for the purchase-money, or a judgment-lien in which the exemption from execution is waived. His claim, however, must be restricted to some property which he owned, or in which he had an interest, at the time of the assignment, or, at the furthest, to the proceeds for which that property sold. It cannot extend to money made by the assignees’ care, management and use of the assigned property. The whole intent and spirit of the act is to leave him something which he already has, and of which he might otherwise be deprived at that point of time. Whatever was unreservedly assigned passed to the assignees in trust for the benefit of all the creditors of the assignor, according to their legal and equitable rights. The income or product of the property, while in their hands, is held by them in like manner. It follows, the appellants were not justified in paying to the assignor, under his reservation in the assignment, the $250, which they received as rent.' The learned judge was therefore correct in -surcharging them with the sum they paid him in excess of $39.

Decree affirmed, and appeal dismissed at the costs of the appellants.