author: Per Curiam.

text:
    Fulton’s Appeal.
    The Act of April 22d 1856, providing for contribution and subrogation to protect equities of parties, does not apply to the case of a judgment against copartners where the accounts of the partnership are unsettled and the liabilities of the respective partners unascertained.
    October 5th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 73.
    In the court below a judgment was obtained on June 20th 1879 by the Central Bank against James B. Fulton, Peter Hutchison, Joseph Henderson,- J. B. Williams, John Henderson, William Henderson, Oliver Henderson, W. P. Logan and Jacob H. Walter, late partners, doing business as Fulton, Marvin & Co.
    On the 9th of February 1880 James B. Fulton, John Henderson, Joseph Henderson, William Henderson and Oliver Henderson filed a petition which set forth that they were defendants in the above-mentioned judgment, “that said judgment after an award of arbitrators has been entered against them, and all the defendants of record, including Jacob H. Walter and others; that it was entered for the sum of $8833.55 and costs, and the plaintiff demands the money in full from your petitioners, whose real estate is subject to the lien of said judgment and award; that your petitioners are forced to pay the amount of said judgment, and are now prepared to pay the same in full; but that a bill in equity for settlement of the business of said firm of Fulton, Marvin & C°- was filed at April term 1876, and the case has been pending before a master, and a large amount of testimony has been taken therein, and that-the case is now about closed, so far as the taking of testimony is involved; that your petitioners are advised that under the evidence they should recover against one of the defendants in this said case, Jacob H. Walter, a large decree for moneys in his hands belonging to the said firm and them, exceeding the amount of the award and judgment in this case, and to protect the interest and equities of petitioners in payment of said judgment and costs, they respectfully ask the court to make an order in the premises, under the equitable practice of the court, and especially under the Act of Assembly of April 22d 1856, which provides, that where one or more such defendants are compelled to pay such judgment that the court shall order and direct, under power vested, to what uses said judgment shall be assigned, &c. Your petitioners, therefore, respectfully ask that such an order be now made by this court as will protect their interests in the premises, and preserve the lien of the judgment against said Walter and other defendants, to the end that if it appear, on final decree in said bill in equity suit, that the whole or any part of said judgment and costs shall he due your petitioners from any of the defendants who do not now contribute to such payment, then said judgment may be controlled in accordance with the equity of the case and the said Act of Assembly, and they will ever pray, &c.”
    A supplemental petition and affidavits, praying for a rule were filed as follows : “ That an affidavit made by Joseph Henderson on the 7th of February 1880 was filed and a rule granted, but that since said rule was granted an execution was issued and direction given, as affiant is informed and believes, to levy the debt, interest and costs in the judgment of the goods and chattels, lands and tenements of this deponent and his co-defendants, above named (Fulton and Hendersons), which execution is now in the hands of the sheriff. That an award, of arbitrators was filed in the original suit at No. 1214 of September term 1876, on the 30th day of January 1877, for the sum of $7837.36, and costs; and from which award against this deponent and the said co-defendants hereinabove named, an appeal was duly taken, and upon issue joined a verdict and judgment was rendered against them on. the 14th day of June 1879, for $8833.55, &c., upon which said execution has been issued.

      “ This affiant further says : That there are other defendants in said suit, and under said award and judgment, whose lands and tenements, goods and chattels are bound by said judgment and execution ; but from whose said lands, &e., goods, &c., it is not now the purpose of the plaintiff to levy and collect said judgment or award, to wit, Jacob PI. Walter, Peter Hutchison, William P. Logan and Jacob B. Williams; but said sheriff has been, or will be, directed to levy and collect said judgment of the lands and tenements, goods and chattels of this afiiant, and said other defendants, James B. Fulton, John, James, Oliver and William Henderson.
    “ Affiant is advised, that this court has legal and equitable control over said execution, inasmuch as all the- partnership assets of said defendants, Fulton, Marvin & Co., have long since been converted, and do not now- exist; and have been and are in the hands and possession of said Jacob H. Walter, one of the said defendants; and deponent and said Hendersons, defendants, are desirous of having the lien of said judgment preserved against the lands, &c., of the said Jacob H. Walter, Peter Hutchison and Logan, all of whom have lands in the county of Allegheny, as deponent is informed and believes, which lien will be released and satisfied, in case deponents and the said' co-defendants pay said judgment to the sheriff, or do voluntarily pay and satisfy said judgment and costs.

      “ He, therefore, asks the court to order and direct, that said execution may also be levied on, and said money be collected of and from the lands, goods and chattels of said other defendants, Walter, Hutchison and Logan, in the proportion that their interests in said firm were, to wit: Said Walter had a one-sixth interest, in the said firm of Fulton, Marvin & Co.; and the said Hutchison one-sixth interest, therein; the said Logan and Williams each one-sixth interest,, and the said Fulton one-sixth interest therein; arid this deponent and the said John, Oliver and William Henderson, had together, one-sixth interest in said firm.
    “ And affiant further says, that the hill in equity mentioned in the said affidavit made by said Joseph Henderson, at said No. 36 of April Term, of 1876, is now being pressed to a hearing before the master, as will appear by reference to the proceedings therein, pending at the suit of this affiant, and others, against said Jacob II. Walter, in which case deponent verily believes a decree will be obtained against said Walter for a large sum of money greatly exceeding the amount of the debt, interest and costs, for which said execution has been issued.
    “He therefore respectfully asks, that the court shall order and direct the plaintiff in said execution, and the sheriff to levy and collect said judgment from the lands and tenements, goods and chattels of all the said defendants therein, in the proportion that their interests in said firm were at and before it was dissolved, which dissolution defendant avers was about the --day of January 1873, since which dissolution said defendants and said firm have been endeavoring to make a just and equitable settlement of their business, as will appear by reference to said bill in equity, and proceedings therein — or this affiant and his said co-defendants ask and desire, that they may be allowed to pay said judgment and execution, in full to the plaintiffs, and that the court do order and direct, that the said judgment be assigned to them, to remain and abide the final decree in said suit in equity; and that the court do make such other order therein, as the equitable right of the parties in the case demand, and what is directed to bo done under the Act of Assembly in such case made and provided, to the end that if a final decree shall be rendered in said equity suit against said Walter, or against him and any, or all of said other co-defendants in the execution now issued in this case for a sum less, equal to or greater than the debt, interest and costs, which shall be paid by this deponent and his said co-defendants, then an.execution under the direction of this court may be issued as to the court may seem meet and proper, for the protection of the defendants paying said money.
    “ Deponent, therefore, asks a rule to show why said plaintiff should not levy and collect his said judgment on said execution from all said defendants’ lands, &c., in the proportions named, or otherwise, that this deponent and his said co-defendants, on payment of the whole debt, interest and costs, for which said execution has been issued, have said judgment assigned to them for such uses and purposes as the court may direct. And the_ affiant asks that the affidavit heretofore filed (the one set forth above) may be deemed a part hereof.”
    The Act of April 22d 1856, Pamph. L. 534, provides as follows :
    “ Whenever the real estate of several persons shall be subject to the lien of any judgment to which they should by law or equity contribute, or to which one should have subrogation against another, or others, it shall be lawful for any one having right to have contribution, or subrogation, in case of payment, upon suggestion by affidavit and proof of the facts necessary to establish such right, to obtain a rule on the plaintiff to show cause why he should not levy upon and make sale of the real estate liable to execution, for the payment of said judgment in the proportion, or in the succession in which the properties of the several owners shall, in law or equity, be liable to contribute towards the discharge of the. common encumbrance, otherwise, upon the payment of such judgment, to assign the same for such uses as the court may direct; and the court shall have power to direct to what uses the said judgment may be assigned, and when assigned, direct executions thereupon, so as to subserve the rights and equities of all parties whose real estate shall be liable thereto, and if the plaintiff shall refuse to accept his debt, and make such assignment of his judgment, the executions thereupon in the hands of the plaintiff, shall be so controlled and directed by the court as to 'subserve the said rights and equities.”
    The plaintiff in the judgment made no answer, but Jacob H. Walter filed an answer to said petition, which set forth that, “true it is that a bill in equity was filed by James B. Fulton and others against J. H. Walter et al., for settlement of the accounts of the said firm of Fulton, Marvin & Co., and that the suit is pending before an examiner, who has not yet completed the taking of testimony ; that a meeting has been fixed for the appearance of the parties on the 19th instant, to take further testimony ; that it is not true that the petitioners should recover against one of the defendants, Jacob H. Walter, a large decree for moneys in his hands belonging to the said firm or belonging to them, the said petitioners; that it is not true that the- said plaintiffs in the said equity suit, are entitled to a decree against this deponent for any sum or amount whatever, but on the contrary the decree should be in favor of this affiant, who is in advance of said firm, and who paid many debts and large amounts for said firm, and had to advance moneys for said firm because the said petitioners defaulted and failed to pay their just share or proportion of the liabilities of the firm of Fulton, Marvin & Co.; .that for the purpose of avoiding litigation, when this suit was commenced, affiant offered to pay much more than his share of the legal liability involved, but the petitioners refused to pay a single dollar, and endeavored to cast the whole liability upon the deponent, very unjustly. Affiant suggests that the petitioners have set forth in their petition ho legal or equitable grounds for the relief demanded; that this honorable court has not power to make any order or decree, such as is demanded, and that said petition should be dismissed. And petitioner further charges that, inasmuch as the petitioners, being legally liable for the said judg ment, have not paid the said judgment, or any part of it, they have no right to claim or petition for the assignment of said judgment, or other or further order or decree of the court in the premises, and upon these grounds the prayer of the said peti tioners should be denied. All .of which is true as deponent verily believes.”
    The court, after argument, discharged the rule, when Fulton and the other petitioners took this appeal, alleging that the court erred in this action.

      A. M. Watson, for appellants.
    This case presents the question, Is the real estate of the defendants still subject to the lien of the judgment, and if so, upon payment thereof by appellants, has the court “power to direct to what use the said judgment shall be assigned, and when assigned, to direct all executions thereupon, so as to subserve the rights and equities of all parties whose real estate shall be liable thereto ?”
    The firm of Fulton, Marvin & Co. dissolved, and their assets passed into the hands of Walter in 1873. In his answer he alleges that these assets were exhausted, and that the late firm has nothing to pay this debt, consequently the real estate of the several defendants in the judgment is bound by it, and from that source alone the plaintiff sought satisfaction. Walter being, so far as such satisfaction goes, the bank, plaintiff, as well as one of the defendants in the judgment, found it easy to control the execution and direct a levy on the real estate of his co-defendants, the appellants, and that being done, they applied to the court for the equitable relief provided by the act. To meet just such a case it is apparent that the legislature made provision relieving copartners from the grip of the common law, as was done by the Act of 1838, providing that partners who were members of two firms might maintain .a suit at common law against themselves and their copartners.
    We submit that appellants’ equities entitle them to the assignment prayed for, and that the lien of the judgment should be preserved for their benefit, pending the termination of the suit in equity, to settle the business and distribute the assets in the hands of Walter, who was really plaintiff as well as defendant in the suit and judgment of the bank against his late firm of Fulton, Marvin & Co.
    October 18th 1880,

      A. M. Brown, for appellee.
    Treating the case as if the part’ ners in the firm of Fulton, Marvin & Co. had been defendants in the judgment and execution, we submit that the appellants have no case. Prima facie partners are not entitled to subrogation without showing a settlement of accounts between them: Wilson v. Ritchie, 4 W. N. C. 37; Bailey v. Brownfield, 8 Harris 41; Pearce v. Yost, 1 W. N. C. 472; Clark et al. v. Martin et al., 6 Id. 30; Fessler’s Appeal, 1 Norris 150. In this case last cited, the court say : “ We think it manifest * * * that the Act of 1856 was not intended to apply to any case in which the amount the substituted creditor has a right to collect from the adverse party under the judgment, has not been ascertained.” Arna’s Appeal, 15 P. F. Smith 72, and Roddy’s Appeal, 22 Id. 98, are entirely in accord with the other cases cited; and it seems clear that the decisions both old and new determine that the appellants in this case are not entitled, either at common law or under the statute of 1856, to the relief demanded. The remedy of the paying partner is by bill in equity for a settlement of the partnership accounts : Bailey v. Brownfield, supra ; Pearce v. Yost, supra.

   The judgment of the Supreme Court was entered,

Per Curiam.

It is very clear, we think, that the Act of April 22d 1856, Pamph. L. 534, does not apply to the case of a judgment against copartners where the accounts of the partnership are unsettled and the liabilities of the respective partners unascertained. How could the court make a decree to enforce contribution or subrogation without first ascertaining 'how much each partner was entitled to receive or bound to pay? It would be necessary that the account should be taken and the balances adjusted. Surely, this proceeding cannot take the place of a bill in equity and the hands of the creditor in the meantime be tied up. This we think a conclusive answer to the application in the court below.

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


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Appeal of the Germania Savings Bank.
    1. A married woman’s power to contract for improvements as well as repairs to her real estate is inseparably incident to her right to take and hold real estate for her own separate use.
    2. A mechanic’s lien filed against' a married woman’s separate estate for woi’k done and materials furnished in and about a dwelling erected for her is valid.
    3. When the omission to set forth in the claim that the work was necessary for the improvement of her separate estate is fatal to the claim.
    October 6th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 103.
    Appeal of the Germania Savings Bank of Pittsburgh from the decree of the court distributing the proceeds of the sale of certain real estate of Mrs. Kate Hale, wife of John M. Hale. The property was sold for $3100, under a mortgage, which was the first lien thereon. The sheriff made a special return distributing the fund, when exceptions were filed to said return by various mechanic’s lien-creditors, and an auditor, Thomas Herriott, Esq., was appointed to pass upon the claims and report a distribution. The auditor, inter alia, reported :
    “ The claimants of the fund are : First. The Germania Savings Bank, the owner of a purchase-money mortgage, on which judgment was obtained, execution issued, and the property sold. The proceeds of this sale are now to be distributed. It is admitted by all the parties that this mortgage is first to be paid in full.
    , “The same bank owns another mortgage, dated August 17th 1878, and properly recorded on August 22d 1878. It claims that this second mortgage, on the same property, should be p&id next after the purchase-money mortgage above mentioned.
    “Various mechanic’s lien-creditors claim that they are entitled to be paid before the second mortgage held by the bank, and the contest is between the mortgage and the mechanic’s liens. The mechanic’s liens were all filed in the prothonotary’s office some time after the second mortgage was recorded, but are filed for work done and materials furnished to the house of the defendants some months before the mortgage was recorded. The evidence shows clearly that the house, for the erection of which the mechanic’s liens were filed, was commenced in the fall of 1876, nearly a year before the second mortgage was recorded; it was completed a short time before the second mortgage -was given.”
    At the time of the sale there was due on this second mortgage $1933.64. The sheriff awarded payment of this mortgage in full, but the auditor and court being of opinion that the mechanic’s liens hereinafter mentioned were entitled to priority, reduced the amount to that extent.

      The mechanic’s claim of Alfred Harrison recited that “ the said Kate Hale, who is a married woman and the wife of John M. Piale, is the owner of said dwelling-house and .premises and the lots of ground on which the same is erected, * * * and that the said A. J. Fair was the architect, contractor and builder of said building, and built or caused the same to be built and constructed under and in pursuance of a contract with the said Kate Hale, and by her authority and direction. The said stone work and labor, and materials for the same, was so done and furnished at the instance and request of the said A. J. Fair, said contractor, who made said contract for the same, and ordered and caused the same to be so done and furnished as aforesaid, by and with the authority and consent of the said Kate Hale, with the knowledge and consent also of her husband, said John M. Hale. The said dwelling-house was so erected by said contractor for the said Kate Hale, for the use and occupancy of herself and family, and was a necessary improvement of the lots of ground aforesaid and the real estate so owned by her.” * * *
    The claim of Samuel Brown set forth: “All of which carpenter work, lumber, flooring boards, mouldings, doors and work and materials were so done and furnished upon the order of said contractor, with (he consent and upon the authority and request of said Kate Hale, and also of her husband, J. M. Hale, and were necessary and convenient to the preservation and enjoyment of the said estate of the said Kate Hale.”
    The claim of McAdams 'did not aver that the work done and materials furnished were necessary, but simply set forth that they were “ furnished and done with the said Kate Hale’s (th,e wife of said J. M. Hale) authority and consent, and this lien is filed to Bind the said Kate Hale’s separate estate in said premises above described,” &c., &c.
    A number of objections to these mechanic’s liens were considered both by the auditor and the court below, and were brought before this court for review, but are not noted in this report, as they were not passed upon by this court.
    From the decree of the court reducing the amount allowed on the judgment and awarding it to the mechanic’s lien claimants, this appeal was taken.

      George W. Guthrie, for appellant.
    This court has never decided that a married woman has the power to subject her separate real estate to liens for the cost of new erections thereon. Repairs necessary for the preservation of buildings already erected have been sustained, as being within the spirit of the Act of 1848 (though not authorized by its letter) because such power is almost essential in order to enable her to save her property from destruction.

      November 8th 1880.
    The Act of 1848 gave a married woman power to bind her estate for necessaries purchased by her for the support of herself or her family. The criterion fixed by the act, however, is necessarily for the support of herself and family, not speculative advantages to her real estate. A clearer case of the evils of such a construction of the law cannot be produced. A contract for the erection of a house to cost $5250, the building erected and the price almost paid in full (the testimony shows that the contractor had been paid all but about $900), yet liens are filed for over $3000, being more than the property realized at the sale. It is true some of these liens were held to be invalid, because informal, but that was an accident not to be expected in every case. If, however, such liens are tobe sustained, some evidence of the necessity, or at least occasion of the work, should be shown beyond the mere statement of it in the claim filed. In' the claim filed by Harrison it is alleged that the building was erected by Kate Hale “ for the use and occupany of herself and family, and was a necessary improvement of the lot of ground;” and in the claim filed by Brown, that the work done .was “necessary and convenient to the preservation and enjoyment of the said estate;” but in the claim filed by McAdams there is no allegation of any necessity whatever.

      J. S. Strickler, W. A. Boothe and Barton & Sons, for appellees.
    The appellant raises a question in this court not raised by him before the auditor, or in the court below, to wit, as to the power of a married woman to improve her vacant real estate by the erection of a dwelling upon it for the use of herself and family. But if we are bound to meet this question here, then we refer to the two cases Forrester v. Preston, and Hutchison v. Preston, reported in 2 Pittsburgh Reports, pp. 299 to 304, decided by Judge Williams, while on the bench of the District Court of this county in 1861, and approved by this court, as appears by the record, at Nos. 101 and 102, October and November term 1861. In these cases it is held that the power to encumber her property by a married woman is not given by or dependent upon the Married Woman’s Act of 1848, but by virtue of the law creating mechanic’s liens.
   Mr. Justice Gordon

delivered the opinion of the court,

This is an appeal from the decree of the Court of Common Pleas, No. 2, distributing the proceeds raised from the sale of certain real estate, the property of Mrs. Kate Hale, on levari facias, No. 290, July Term 1878.

We think the exceptions of the appellant were properly disposed of in the court below, and deem it unnecessary to review in detail the various questions which were therein carefully considered and settled. The learned counsel for the appellant has, however, raised a question which, if determined as he desires, will prove destructive to the several mechanic’s liens, to which the money in controversy, or a large part of it, was appropriated.

He contends that this court has never, as yet, decided that a married woman has power to charge her separate estate for the cost of new erections or improvements, and he refers to the doubt expressed in the case of Moore v. Cornell, 18 P. F. Smith 320, as to the power of a married woman to contract for the improvement or repair of her property. He, however, admits that this doubt has been partially, if not wholly, resolved in Lippincott v. Leeds, 27 P. F. Smith 420, wherein it was ruled that a married woman is liable for repairs to her separate estate, made at her request, and necessary for its preservation and enjoyment. This power arises not from the direct grant of it by the statute, but from implication. The statute confers upon her the right to control and enjoy her own property, but in order to this she must have the power to protect it from dilapidation and decay, but to improve is often as great a necessity as to repair. For the enjoyment of wild lands, clearing, fencing and buildings are necessary; for the use and' enjoyment of a city lot a dwelling is necessary ; so where a building falls or burns down, it must be rebuilt, and to say that a married woman shall not have the power to contract for such necessary improvements, is to say that she shall not have the ordinary means of controlling and enjoying her separate estate, and thus, is the very spirit and intention of the Act of 1848 destroyed. It, therefore, certainly follows that her power to contract for improvements as well as for repairs is inseparably incident to her right to take and hold real estate for her own separate use. But in support of this point we have an abundance of authority. The very question now before us was decided in the cases of Forrester v. Preston, and Hutchinson v. Preston, 2 Pitts. R. 298, 304. These cases were tried in the District Court of Allegheny county in 1861, and affirmed by this court without dissent in 1862. In these cases the only question raised and determined was the validity of mechanics’ liens filed against a married woman’s separate estate for work done and materials furnished in and about a dwelling erected for her. In Murray v. Keys, 11 Casey 384, Mr. Justice Woodward says, that the power of a married woman to contract debts to improve her separate estate, remove liens, &c., is conferred by the sixth section of the Act of 1848. In Lippincott v. Hopkins, 7 P. F. Smith 328, a judgment founded upon a narr. charging that a married woman “ then and there having and enjoying her own separate estate, hired and employed plaintiff to furnish work, labor and materials on and for the same, being necessary for said estate,” was sustained. In Kuhns v. Turney, 6 Norris 497, it was held that a feme covert’s power to contract for the improvement and repair of her- separate property arises ex necessitate ; that it is impossible to see how, under a strict application of the common-law rule, a married woman could properly enjoy her estate, and hence, it is necessary, in order to give the Act of 1848 its intended force, to allow her to contract for necessary improvements and repairs. In like manner it is conceded by Mr. Justice Mercur, in Shannon v. Shultz, 6 Norris 481, that such power does exist in the feme covert, though it arises rather by implication than from the express terms of the act. As sustaining the same opinion, we may cite Findley’s Appeal, 17 P. F. Smith 456; Heugh v. Jones, 8 Casey 432 ; Dearie v. Martin, 28 P. F. Smith 56, and Schriffer v. Saum, 31 Id. 385.

It is thus apparent that the decision of the court below on the point in hand is fortified by a mass of authority sufficient to render it impregnable.

As to the exception to the McAdams claim, that it does not set forth that the work -was necessary for the improvement of her separate estate, we have but to say, that had exception been taken by Mrs. Hale at the proper time, the want of this word “ necessary” would have been fatal to the claim; not so, however, when the objection comes from a third person, and after judgment on a scire facias.

Decree affirmed and appeal dismissed at costs of appellant.


author: Mr. Justice Sterrett

text:
    The Travellers’ Insurance Company versus Heath.
    1. The general principle undoubtedly is, that money collected or paid upon lawful process of execution cannot be recovered back though not justly or lawfully due by the defendant in the execution to the plaintiff, but where the judgment which supported the execution has not only been reversed, but on a re-trial final judgment has been entered in favor of the opposite party, the principle does not apply.
    2. Restitution is not of mere right. It is frequently a matter of grace and resting in a sound discretion. Where, therefore, the Supreme Court, upon the reversal of a judgment on which the money was made, refused to grant a writ of restitution, said refusal is not a bar to the recovery of the money, where upon a second trial the verdict was for the defendant.
    3. Where a judgment has been thus'reversed and upon a new trial judgment has been entered for defendant, assumpsit will lie to recover back the money paid under the execution.
    October 7th 1880.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 337.
    Assumpsit by John Heath against the Travellers’ Insurance Company, of Hartford, Connecticut, to recover back money paid under an execution upon a judgment which was subsequently reversed by the Supreme Court.
    The insurance company, on January 30th 1873, brought an action of debt in .the Common Pleas, No. 2, of Allegheny county, on a bond given by Thorne, John Heath and Andrew E. Baum to the company. The company was a Life and Accident Insurance Company, and the bond dated July 25th 1870, on which the action was brought, recited that Thorne had been duly appointed agent of the company for the western part of Pennsylvania’, and that, as such agent, he would receive divers sums of money and other effects of the company, and it was conditioned that Thorne should promptly pay to it the amounts received from time to time, &c.
    Thorne acted for some time as agent, but, neglecting to pay over premiums collected by him, the company demanded the same of the sureties, Heath and Baum, and they not being paid, the action of debt was brought on the bond to recover the premiums for insurance which Thorne had received.
    On the trial of that cause in the court below, the jury found that Thorne had received, of the premiums due the insurance company, the sum of ¡§1847.08, and for this amount judgment was entered against Thorne, Heath and Baum.
    In that case,- Thorne and Heath and Baum defended on the ground that the Travellers’ Insurance Company, being a corporation of the state of Connecticut, had not complied with the Act of the General Assembly of this state, approved April 11th 1868, Pamph. L. 831, relating to insurance companies, in reference to the appointment of agents, &c.; and that, therefore, they could not maintain the action. The court below declined so to hold, and the cause was removed to this court by writ of error to October and November Term 1874; Heath, Thorne and Baum, .with sureties, entering into the usual recognisance in order to effect a supersedeas. This writ, on the 3d of November 1874, was non-prossed, and thereupon a remittitur was issued out of this court, and the record taken down to the Court of Common Pleas, No. 2. A writ of fieri facias was then issued out of the Common Pleas Court on the judgment against Heath, Thorne and Baum, and the money paid by Heath; the sheriff’s return on the writ being: “Money made, paid by John Heath.” Subsequently, another writ of error was sued out .to this cour.t at October and November Term 1875, a report of which case will be found in 30 P. F. Smith 28. This court there held that the insurance company could not maintain the action, because of its failure to comply with the Act of 1868, in taking out a license and filing the name of agents, &c., and reversed the judgment granting a venire. Heath then made application by petition to this court, setting forth the preceding facts, and asking for an order of restitution, which this court refused to grant him. The cause again came on for trial in the Common Pleas, No. 2, and was ruled on the decision of this court above referred to, that the insurance company could not recover. Heath then brought this action to recover the money he had paid on the fi. fa. issued as aforesaid out of the Common Pleas, No. 2. The declaration contained the common counts for money had and received and the plea was the general issue and payment.
    Upon the trial, before Collier, J., the defendant offered to prove that the money for which this suit was brought was paid by Heath on account of. moneys belonging to the defendant received by Thorne as their agent, for which Heath was liable as surety under the conditions of his bond.
    “ Objected to and objection sustained.” (10th assignment of error.)
    The defendant submitted the following points, to which are append the answers of the court.
    1. That a payment without compulsion is a voluntary payment, and if they find the alleged payment by Heath to have been made without compulsion they must find for defendant.
    Ans. “Affirmed.”
    2. That compulsion in this case, under the evidence, would be a levy upon the property of said Heath, and a payment by him to relieve his property from the levy; and if no such levy was made, and he, without that, paid the debt, your verdict must be for defendant.
    Ans. “ Refused.” (1st assignment.)
    3. That the return of the sheriff, “ Money made ; paid by John Heath,” implies a voluntary payment, and that the return of the sheriff being of record is conclusive, and John Heath cannot recover in this case.
    Ans. “ Refused.” (2d assignment.)
    4. That by the bond dated July 25th 1870, the said plaintiff, John Heath, in equity and good morals, undertook to pay to the Travellers’ Insurance Company the very moneys that he has paid, to wit: Such moneys as Robert Thorne should receive as their agent after the date of said bond, and not pay over, and if the jury find that the moneys paid by John Heath are such moneys, then he cannot recover.
    Ans. “Refused.” (3d assignment.)
    5. That the entering into the recognisance for writ of error to Supreme Court by John Heath was a voluntary undertaking by him ; and, according to the condition thereof, he agrees to pay if the writ was not prosecuted with effect; and as that writ was not prosecuted with effect, and the money he subsequently paid was the condemnation money, and costs as therein provided, he cannot in this action recover the money so paid.
    Ans. “ Refused.” (4th assignment.)

      6. That if the jury find that the moneys paid hy Heath to have been paid after the first writ of error in the Supreme Court was non-prossed, the reversal of the judgment and all subsequent proceedings cannot aid Heath in recovering the money back.
    Ans. “Refused.” (7th assignment.)
    7. The plaintiff, John Heath, having failed to prosecute the writ of error with effect, in pursuance of the recognisance taken —which recognisance, and 'the records of the case in which it was taken, are now in evidence — the said John Heath became liable to pay the condemnation money and costs, and having done so cannot recover in this action for said money so paid.
    Ans. “Refused.” (5th assignment.)
    8. The said John Heath having applied for a writ or order of restitution as per his petition in evidence, which order of restitution against the defendant company was refused, and it being for the same money for which this action was brought, the plaintiff could not recover.
    Ans. “ Refused.” (6th assignment.)
    10. Under all the evidence in the case the plaintiff cannot recover.
    Ans. “ Refused.” (8th assignment.)
    In the general charge, the court, Collier, A. L. J., inter alia, said:
    “Now, if Mr. Heath paid that money voluntarily, without any execution having been issued against him, or without any threat of execution, he could not recover it back here; but if he knew the execution was issued, and that his property was bound, and there might be a levy made, and he be forced to pay the money, then if he would go and pay it, that would not be a voluntary payment; it would be compulsory.” (9th assignment.)
    The verdict was for plaintiff and after judgment thereon defendant took this writ and alleged that the court erred as set forth in the above assignments of error.

      D. T. Watson and M. Raymond, for plaintiff in error.
    This action of assumpsit cannot be maintained, because, the only evidence on the question of compulsory payment is the fact that a fi. fa. was issued, and the return of the sheriff. There was no levy upon the goods of Heath, and no aggressive steps to compel him to pay, except the mere fact that the fi. fa. was issued. On the issuing of the fi. fa. he paid the amount of the writ. The burden was on the plaintiff, to show payment by compulsion; failing in this he had no case. His only evidence to prove it was the fi. fa. We submit that the mere issuing of said writ did not sustain the burden: Colwell v. Peden, 3 Watts 327; Webber v. Aldrich, 2 N. H. 461; Knobbs v. Hall, 1 Esp. 84; 3 Bos. & Pul. 520; Atlee v. Backhouse, 3 N. & W. 633; Wilcox v. How-land, 23 Pick. 167; Borough of Allentown v. Saeger, 8 Harris 421.
    October 18th 1880.
    Money collected or paid upon lawful process of execution cannot be recovered back in assumpsit, though not justly or lawfully due by the defendant in the execution to the plaintiff: Federal Ins. Co. v. Robinson, 1 Norris 359; Finnel v. Brew, 2 W. N. C. 622 ; Walton v. Robb, 1 Ashmead 43; Herring v. Adams, 5 W. & S. 459.
    . This was ruled in England so early as the case of Marriott v. Hampton, 7 Term Rep. 269, where the judges thought it was so clear that they would not even grant a rule to show cause why a nonsuit entered on this ground should not be set aside. It has there been carried so far that where money was paid after an action brought and before judgment entered, it was ruled, it could not be recovered: Hamlet v. Richardson, 9 Bing. 644; Milnes v. Duncan, 6 B. & C. 679; Fisher v. Sawnder, 1 Camp. 190.
    The refusal of the writ of restitution was conclusive on Heath that he could not recover the money by him paid to the company : Breading v. Blocher, 5 Casey 349; Harger v. Commissioners, 2 Jones 251; Thorne and Heath v. Ins. Co., 30 P. F. Smith 28.
    The count for money had and received is an equitable action, and under the general issue the defendant may go into all .the equities of the case, and if he may in good conscience retain the money there can be no recovery: Barr v. Craig, 2 Dall. 151; Haldane v. Duche, 2 Id. 176.
    The money which Heath paid was money belonging to the company which Thorne received by reason of the bond which Heath gave to the company. -In equity and good conscience the company had the right to receive and retain it. The money which the company received from Heath was just what was due by reason of the recognisance of Heath as bail in error. The writ of error was not prosecuted with effect.

      W. S. Purviance and H. W. Weir, for defendant in error. —
    Assumpsit is the proper action where money has been received under a judgment which has been reversed or where the court has no jurisdiction: Duncan v. Kirkpatrick, 13 S. & R. 294; Newdigate v. Davy, 1 Raymond 742; Marriott v. Hampton, 2 Esp. N. P. Rep. 546-48 note.
   Mr. Justice Sterrett

delivered the opinion of the court,

After reversal of the judgment obtained by the present plaintiff in error against Robert Thorne and his sureties, it was finally determined, on the second trial, in accordance with the judgment of this court, reported in 30 P. F. Smith 15, that the insurance com-pa ny had no right to recover the amount of the premiums, &c., for which suit was brought, for the reason that the company, during the time that Thorne, acting as its agent, collected the same, was doing business within this Commonwealth in direct contravention of the law relating to foreign insurance companies. It was held in that ease that the legislature had a clear right to prescribe the conditions under which foreign corporations may do business in this state, and the mode of appointing and qualifying their agents, and that actions, based upon transactions prohibited by the statute cannot be maintained in our courts. The general principle, underlying the decision, is that courts will not aid a party in an action grounded on an immoral or illegal act; and it is right that it should be so, because if foreign insurance companies were aided by our courts in gathering the fruits of their illegal acts done in palpable violation of the statute, it would soon become practically a dead letter as to many of them.

For the reasons stated, it was thus definitively settled that the Travellers’ Insurance Company had no legal claim upon the bond against either Thorne or his sureties for the premiums collected by him ; and it is difficult to understand upon what principle of equity or sound morality the company could claim to collect and retain, as against one of the sureties, money which represented the fruit of illegal transactions.

The first writ of error sued out by Thorne and his sureties was non prossed by this court in 1874, whereupon the record was remitted and an execution was issued, upon which, according to the sheriff’s return, the money was collected from John Heath, one of the sureties. An alias writ of error was then purchased, and upon it, in 1875, the judgment was reversed and a venire facias de novo awarded. The new trial resulted in a verdict and final judgment in favor of Thorne and his sureties, as above stated. The present action was then brought by John Heath to recover back the money which he was compelled to pay on the execution, and to which, according to the final judgment of the court, the defendant company had no legal claim.

The first assignment of error is the refusal of the court to charge “ That compulsion, in this case, under the evidence, would be a levy upon the property of Heath and a payment by him to relieve his property from the levy ; and if no such levy was made, and he without that paid the debt, the verdict must be for the defendant.” The second is the refusal of the court to charge, “ That the return of the sheriff, ‘money made; paid by John Heath,’ implies a voluntary payment, and that the return of the sheriff being of record, is conclusive, and John Heath cannot recover in this case.”'

The' substance of the contention in these two assignments, together with the ninth, is that, inasmuch as it does not appear that a levy was actually made on the property of Heath before he paid the money to the sheriff, the payment was voluntary, and therefore he could not recover. We cannot assent to this proposition. The first writ of error, by which the execution had theretofore been restrained, was non grossed, the execution was issued and at once became a lien on all of Heath’s personal property in the county from the time it was placed in the sheriff’s hands. Heath had no alternative but to pay the money or submit to the seizure and sale of his property. Under these circumstances, payment of the money to the sheriff on the execution was not, in any proper sense of the term, a voluntary payment; on the contrary, it was under stress of the execution, and therefore compulsory. The learned judge had affirmed defendant’s first point, “ That a payment without compulsion is a voluntary payment, and if the jury find the alleged payment by Heath to have been made without compulsion, they must find for the defendant.” The question was thus, by defendant’s request, submitted to the jury; but in any aspect of the case, there was no error in refusing to affirm the second and third points, or in charging as complained of in the ninth assignment.

The third, fourth and fifth assignments are not sustained. The principle involved in the third was broadly settled in Thorne et al. v. Insurance Co., supra; nor does his recognisance, entered into when he took the first writ of error, or the nonprossing of the writ stand in the way of his recovery. The money which he seeks to recover back was not collected under the recognisance, but on the execution issued on the original judgment.

The contention in the sixth assignment is that the refusal of this court to grant a writ of restitution immediately upon the reversal of the first judgment is a bar to this action. We do not think so. Restitution is not always of right; it is frequently a matter of grace, and the refusal to grant the writ before the second trial was had, and the right of the insurance company to recover the amount of premiums collected finally determined, cannot be a bar to the present suit instituted after the first was ended. In Harger v. Commissioners of Washington Co., 2 Jones 251, it is said, “ Restitution is not of mere right. It is ex gratia, resting in the exercise of a sound discretion, and the court will not order it where the justice of the case does not call for it.” In refusing the order of restitution the court may have been influenced by the fact apparent on the record, that the plaintiff in error was guilty of laches in not prosecuting his first writ of error, and permitting the same to be non prossed, whereby he lost the benefit of his writ as a supersedeas ; but, on whatever ground it may have been refused, we are of opinion that the refusal at the time and under the circumstances is not a bar to the present action.

What has already been said is a sufficient answer to the seventh and eighth assignments, both of which present the general question of the right of the plaintiff below to recover. The general principle undoubtedly is, that money collected or paid upon lawful process of execution cannot be recovered back, though not justly or lawfully due by the defendant in the execution to the plaintiff. Cases in which the principle is recognised are numerous, but in none of them is the reason more clearly and forcibly stated than in Federal Insurance Company v. Robinson, 1 Norris 359. They are cases in which the judgment on which the execution issued was never reversed or vacated.'- Where, as in the case before us, the judgment which supported .the execution has not only been reversed, but, on a retrial, final judgment has been entered in favor of the opposite party, the principle does not apply. In Duncan v. Kirkpatrick, 13 S. & R. 292, Chief: Justice Gibson remarks “that assumpsit is the proper action when the money has been received under a judgment which has been reversed;” but he restricts its application to cases of reversal without' any order of restitution.

The offer which is the subject of complaint in the last assignment was properly rejected.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Palmer versus Gillespie.
    1. To take a ease out of the operation of the Statute of Limitations it is not essentially necessary that the promise to pay should be actual or express. A clear, distinct and unequivocal acknowledgment of a debt is sufficient. It must be an admission consistent with a promise to pay. If so the law will imply the promise without its having been actually made.
    2. There must be no uncertainty as to the particular debt. It must be so distinct and unambiguous as to remove hesitation in regard to the debtor’s meaning.
    October 7th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term 1880, No. 140.
    Debt by John J. Gillespie against Robert H. Palmer, to recover one-quarter’s rent due upon a lease.
    The defendant admitted that he was indebted to the plaintiff in the sum of $750 for one-quarter’s rent, but claimed to have a set off to the whole claim by reason of the following facts: That in January 1865, Gillespie was raising a fund to purchase certain oil land, and proposed to defendant to take a part therein. Gillespie was to take the title to the land in his own name and hold it in trust for the contributors in proportion to their respective contributions. Palmer contributed $750 in two instalments, one of $500 and the .other in $250, for each of which he took Gillespie’s receipts. One property was purchased by Gillespie and held in his own name for several years. It did not clearly appear that any of Palmer’s money went into this purchase. In regard to the investment, Palmer testified:—
    “ I didn’t ask him about it until about, I think, 1870 or 1871. There was a good deal of excitement at that time in oil lands in the neighborhood of Jones’s Run and White Oak Chute, and I inquired of him about it. He said, he didn’t think I was in it at all. Said he would look at papers ; that Mr. Wolf had the papers, and that he would look at them. He afterwards informed me that there was not enough stock or lands to go around. I told him I wanted him to settle it then. He said he would, but he thought he could buy me a share of equal value of a man that would come in. I let it go. I afterwards asked him about the man’s coming in. He said he hadn’t come in, but he expected him, that he would settle it, would pay it, would see to it, that it was correct. First he said he didn’t think the receipts were written by him, didn’t think I had a receipt for it, and when I brought the receipts to him he said he would pay it, settle it. Afterwards he delayed about it and promised he would settle it from time to time, and offered me various kinds of property that I would not accept at all, were of no value I supposed.”
    Gillespie denied these conversations as testified to by Palmer. He also testified that he did not know how much of Palmer’s money had been invested; that the question had been referred to a third party, but had never been decided ; that more money had been paid in than was necessary for the purchase, and some of it had been paid back to the contributors.
    The first point of the plaintiff which the court, Collier, A. L. J., affirmed, was as follows :—
    “ That even if the jury believe from the evidence that Mr. Palmer, the defendant, gave to the plaintiff'$750 to be invested, together with moneys of other parties, in real estate, which the said Gillespie was to hold in trust for said defendant and others, in proportion to amounts of money by them respectively contributed to the purchase-money, and if the jury believe that the plaintiff took title to said property and recognised the interest of defendant therein, but that when making a subsequent conveyance to another trustee a dispute arose as to the quantum of interest in the property belonging to the defendant, such state of facts give the defendant no right to recover back his purchase-money or any part thereof, nor is such defence available by way either of payment or set-off in this present action.”
    The court, inter alia, charged: “Then there is another matter, even if the proposition of the defendant is true. This transaction was more than six years before the bringing of this suit. It is necessary that Mr. Gillespie should make an actual promise to pay within the six years, should admit it, and say he would pay it before the defendant would be entitled to a verdict. * * * Now, the transaction being more than six years old at the time of the bringing of this suit, unless there was a promise to pay, it would not avail.”
    Verdict for plaintiff, and after judgment defendant took this writ and alleged that the court erred in the answer to the above point and in the foregoing portion of the charge.

      West MeMurray, for plaintiff in error.
    If the money was given to invest in land, and the whole or any part of it not used for that purpose, assumpsit for money had and received would lie to recover back all that was misappropriated, and there should be a set-off for the amount of such assumption. A count for money had and received has always been looked upon as governed by equitable principles, and it lies where the defendant ought ex cequo et bono to refund the money which he has received: Aycinena v. Peries, 6 W. & S. 244; Deysher v. Triebel, 14 P. F. Smith 386; Jack v. Morrison, 12 Wright 115.
    To take the case out of the Statute of Limitations no actual promise to pay need be proved. An admission consistent with a promise to pay is enough: Sutor v. Sheeler, 10 Harris 308; Patten v. Hassinger, 19 P. F. Smith 318; Sensman v. Hershman, 1 Norris 85. No case has gone the length of saying there must be an express promise to pay: Sharswood, J., in Johns v. Lance, 19 P. F. Smith 336; and see Fries v. Boisselet, 9 S. & R. 128; Eckert v. Wilson, 12 Id. 393; Gilkyson v. Larue, 6 W. & S. 213 ; Hazlebaker v. Reeves, 2 Jones 264; Davis v. Steiner, 2 Harris 275.

      Hampton & Dalzell, for defendant in error.
    Under his plea of payment with leave, the defendant proposed to revoke the trust committed to the plaintiff and recover back his money. His claim was for the whole, or if not the whole, then as much as he could get. Had the jury been allowed to go into this question andffound in his favor, he would then have had his money back, and whatever interest he held in the lands under the trust deed beside. Now, according to the evidence, the plaintiff was simply the treasurer of a fund contributed by a number of parties for a particular purpose. He held the fund as trustee, as he did the land when bought. When the defendant’s money was paid into the pool it lost its identity, and if the land was purchased for less money (as it seems to have been) than the whole amount contributed, it would appear clear that what remained belonged to all the contributors, and not to any one. The question as to the disposition of this balance was one in which all the parties were interested. How could it be settled in an action between the plaintiff and the defendant ?

      November 8th 1880.
    In order to take a case out of the operation of the statute, the acknowledgment of the debt must be clear, distinct and unequivocal. It must be so distinct and palpable in its extent and form as to preclude hesitation. A naked admission of indebtedness, without anything indicating the amount or nature of the debt, or a promise to pay something without a reference to the sum to be paid, is insufficient: Johns v. Lantz, 13 P. F. Smith 326, affirming Wolfsenberger v. Young, 11 Wright 516; Sutor v. Sheeler, 10 Harris 308 ; Miller v. Basehore, 2 Norris 356. In Emerson v. Miller et al., 3 Casey 278, the debtor, in answer to the plaintiff’s bill and demand for payment, said that he would “ attend to it,” or “ fix it,” or “settle it.” In that case it was held that neither of the expressions, nor all together, were sufficient from which to imply an acknowledgment of the debt and a promise to pay it: Weaver v. Weaver, 4 P. F. Smith 153. The utmost, according to defendant’s own story, that the plaintiff promised to do was to pay or settle his interest in the lands or stock. There was a question and a doubt as to what his interest was, or whether it had been procured as a whole. He said he would settle. How ? By procuring him a share.
   Mr. Justice Mercur

delivered the opinion of the court,

This contention relates to the allowance of a set-off claimed by the plaintiff in error. His right thereto is alleged to have arisen on this statement of facts: A purchase of oil lands was contemplated, in which both these parties and some others should be interested. The purchase was to be made in the name of the defendant in error; but in fact for the benefit of all who contributed towards the purchase-money, according to the amount subscribed by each respectively. The plaintiff in error testified that for this purpose he put $750 into the hands of the defendant in error; but the latter did not so invest it, and afterwards promised to pay it back to him. Evidence was given tending to show that one piece of land was purchased by him and deed therefor taken in his name, and that he afterwards conveyed the same to one Hail-man without declaring any trust therein for the plaintiff in error. Whether any right of the latter in the land was then recognised to exist is a question in dispute. It seems, however, if any was recognised it was not equal to the whole $750. This sum had been advanced by the plaintiff in error in two instalments. The first of $250, the latter of $500. This suit was brought more than six years after the money was thus advanced. To avoid the effect of the Statute of Limitations, the plaintiff in error relied on promises or admissions of indebtedness alleged to have been made within the six years. The learned judge charged substantially that, notwithstanding the defendant in error may have kept this money and did ■ not invest it in the oil property, yet, as that was more than six years before suit brought, to make him liable it was necessary that he “ should make an actual promise to pay, within the six years ; should admit it, and say he would pay it before,” he would now be liable therefor. Again he charged, “ now, the transaction being more than six years old at the time of the bringing of this suit, unless there was a promise to pay it, it would not avail.”

In so charging we think the learned judge erred. It is not essentially necessary that the promise be actual or express, provided the other necessary facts are shown. A clear, distinct and unequivocal acknowledgment of a debt is sufficient to take a case out of the operation of the statute. It must be an admission consistent with a promise to pay. If so, the law will imply the promise, without its having been actually or expressly made. There must not be uncertainty as to the particular debt to which the admission applies. It must be so distinct and unambiguous as to remove hesitation in regard to the debtor’s meaning: Fries v. Boisselet, 9 S. & R. 128; Bailey v. Bailey, 14 Id. 195; Allison v. James, 9 Watts 380 ; Gilkyson v. Larue, 6 W. & S. 213; Hazlebaker v. Reeves, 2 Jones 264; Davis v. Steiner, 2 Harris 275; Johns v. Lantz, 13 P. F. Smith 324. In this last case it was said by the present chief justice, “ no case, however, has ever gone the length of saying that there must be an express promise to pay in terms.” Watson’s Executors v. Stern, 26 P. F. Smith 121, and Senseman et al. v. Hershman et al., 1 Norris 83, declare the rule to be as stated in the cases we have cited.

Miller v. Basehore, 2 Norris 356, was not intended to overrule the long line of preceding cases. The generality of the language therein used, must therefore not be understood as requiring an express promise; but a promise that may be clearly implied. The rule, as held in the other cases cited, was approved and declared in Rider v. Kinger, decided last spring at Harrisburg.

Inasmuch as the jury might find, under the evidence, that at least one part of the money was in fact, never invested in land, the language covered by the first assignment may have been calculated to mislead 'them. It appears to assume that both sums should be held as one payment. The evidence bearing on each ought to be separately presented to the jury. This can be done on the next trial. '

■ Judgment reversed, and a venire facias de novo awarded.


text:
    Hensel et al. versus Noble.
    1. It cannot be doubted that a lien is given by the common law to a tradesman or artisan who, in the course of his trade or occupation receives personal property upon which he bestows labor, &c., and his right to a lien on the property is equally good whether there be an agreement for a stipulated price or only an implied" contract to pay a reasonable compensation.
    2. It is equally clear on principle as well as authority that where there is an entire contract for making or repairing several articles for a gross sum, the tx-adesman has a lien on any one or more of the articles in his possession, not only for their proportionate part of the sum agreed upon for repairing the whole, but for such amount as he m»y be entitled to for labor, &e., bestowed upon all the articles embraced in the contract.
    October 7th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 106.
    Trover and conversion by Jesse Noble against Hensel k Reeg for one wagon wheel.
    At the trial, before White, A. L. J., the plaintiff testified that he called at the defendants’ shop in Allegheny city and bargained with them to re-tire one of the wheels of his wagon for $1.’50; that he called again when the wheel was done, and tendered to the defendants $1.50 and demanded his wheel; and that they ^refused to take the money and deliver the wheel, alleging that the contract was for the re-tiring of" two wheels at $3.
    The defendants testified and gave evidence that the plaintiff, who was a sewing-machine agent and not a customer of the defendants, called at their shop and bargained with the defendants for the re-tiring of two wheels, at $3 for the job; that they could re-tire two wheels for $3 while they could not re-tire one wheel for half that amount, as an odd sized iron was needed, and three bars would re-tire two wheels, while it would take or destroy two bars to re-tire one wheel; that the plaintiff left one wheel for repair, the defendants lending him one to use instead, and he was to call next day and leave the .other wheel; that they purchased three bars of iron and repaired one wheel, and welded, cut and bent the iron for the other wheel; that the plaintiff called the next day and tendered $1.50, and demanded the wheel, saying he would not have the other one repaired. The defendants refused to receive the money or to deliver the wheel, standing upon the contract as they alleged it to have been made.
    In the general charge the court, inter alia, said : “ That -if the parties did agree that the defendants would repair two wheels for the plaintiff for which the plaintiff was to pay the sum of $3, and if the plaintiff, after the defendants had repaired one wheel, came and demanded the wheel, and tendered a sufficient amount to pay for the repair of that wheel, the defendants were bound to give it to him. * * * That defendants had a right to retain the wheel until the price agreed upon for repairing that wheel, or a fair and reasonable compensation for the work done was tendered.”
    October 25th 1880.
    Verdict for plaintiff for $4.75, and after judgment thereon defendants took this writ, their assignments of error being the above portions of the charge.

      A. Blakeley, for plaintiffs in error.
    There was a contract to repair two wheels for the round sum of $3, and the defendants had a lien on the repaired wheel for that sum. Where there is a contract for the repair of several things for a round sum, any one or more of the articles can be held by the workman until the contract price, the round sum for the whole job, is paid: Blake v. Nicholson, 3 M. & Selw. 167; Chase v. Westhouse, 5 Id. 180. The contract was entire and indivisible, and there cannot be part performance on either side without the consent of the other : Pier v. Schenk, 3 Hill. 28; Sinclair v. Bowles, 9 B. & C. 92. The question and authorities have been recently examined and stated in Mathias v. Sellers, 5 Norris 486.

      J. R. Harbison, for defendant in error.
    The authorities cited by plaintiffs in error only decide that where one takes property and bestows labor and expense upon it, he can retain part thereof for the whole value of the labor done and expense incurred where the contract is an entire one. The common law gives a lien to one who keeps property in the way of his trade or occupation, to bestow labor and expense upon it: .Mathias v. Sellers, supra. It extends no further than to the property bailed, and to cases only in which the bailee has directly conferred additional value by labor or skill, or indirectly by instrumentality of an agent under his control: Steinman v. Wilkins, 7 W. & S. 466. Possession is essential, and the lien can only be claimed for the amount of work done or expenses incurred.
   Mr. Justice Sterrett

delivered the opinion of the Court,

The amount in dispute between the parties to this contention, did not, in the outset, exceed a dollar and a half. If we were to adopt that sum as the proper standard of its magnitude, the case would be a very small one, so small, indeed, as to bring it almost within the maxim, de minimis non curat lex ; but, perhaps, neither the luxury of a lawsuit, nor the importance, in the eyes of the parties, of the legal principles it may be supposed to involve, should be measured by such a petty rule as that. Whether prompted by the love of litigation, pure and simple, or by the more laudable desire to promote the cause of justice generally, by settling mooted questions of law, &c., parties have at least an abstract right to try little cases and bring them here for revision. When it is their sovereign pleasure thus to occupy their own time as well as that of the public, it is our duty to hear them as patiently and consider their cases as carefully as if they involved thousands of dollars instead of a few cents; but, one thing is quite certain, that in the end the winner will invariably be loser, at least, in a pecuniary point of view. That, however, is his affair, not ours.

It was admitted by both parties that they had made a special contract in regard to renewing wagon tire, but they disagreed as to whether it was for the renewal of the tire on one or two wheels. The plaintiff below claimed and introduced testimony tending to prove that defendants were to repair one of his wagon wheels for $1.50 ; that, when the tire was put on, he tendered that sum and demanded the wheel, but they refused to accept the tender or deliver the wheel. On the other hand, the defendants’ testimony tended to prove that the contract was to renew the tire on two wheels for the sum of $3; that while they could do this, they could not afford to repair one wheel only for half that sum, inasmuch as tire of an odd size was required, and three bars of iron would repair both wheels, but in repairing one only there would necessarily be some waste; that the plaintiff delivered one wheel to be repaired, and promised to leave the other on the following day ; that they purchased the three bars of iron, repaired the one wheel, cut, welded and bent the iron for the other; that plaintiff tendered $1.50, and demanded the wheel, saying, that he would not have anything done with the other, and that, standing upon their agreement to repair both as an entire contract, they refused to accept the money and deliver the wheel that was then repaired.

It was, of course, for the jury to determine which of these versions of the contract was the true one. If they found that it was as claimed by the plaintiff the defendants were clearly in the wrong; but, if they came to the conclusion that the contract was to repair both wheels together for $3, then the plaintiff below had no right to demand the wheel without first paying or tendering the price of repairing the one together with at least sufficient to compensate for the labor, &c., expended in preparing to repair the other also.

It cannot be doubted that a lien is given by the common law to a tradesman or artisan, who in the course of his trade or occupation receives personal property upon which he bestows labor, &c.; and his right to a lien on the property is equally good whether there be an agreement for a stipulated price, or only an implied contract to pay a reasonable compensation : Story on Bailments, sects. 440 and 441 a; Mathias v. Sellers, 5 -Norris 486. It is equally clear on principle, as well as authority, that where there is an entire contract for making or repairing several articles for a gross sum, the tradesman has a lien on any one or more of the articles in his possession, not only for their proportionate part of the sum agreed upon for repairing the whole, but, for such amount as he may be entitled to for labor, &c., bestowed upon all the articles embraced in' the contract: Blake v. Nicholson, 3 M. & Selw. 167; Chase v. Westmore, 5 Id. 180.

The learned judge instructed the jury, “ That if the parties did agree that the defendants would repair two wheels for the plaintiff for which he was to pay them $ 3, and the plaintiff, after defendants had repaired one wheel, came and demanded the wheel and tendered a sufficient amount to pay for the repair of that wheel, the defendants were bound to give it to him.” In this we think there was error. If the contract was entire, and defendants, in pursuance of it, had not only repaired one wheel, but had also bestowed labor, and incurred expense for the purpose of repairing the other, their lien on the one wheel in their possession was good for the whole amount of their labor and expense done and incurred in pursuance of their contract, not exceeding the sum fixed by the agreement. He also charged the jury, as complained of in the second assignment, “ That defendants had a right to retain the wheel until the price agreed upon for repairing that wheel, or a fair and reasonable compensation for the work done was tendered.” If by, “the work done,” was meant the labor, -fee., bestowed in repairing the one wheel alone, this instruction was also erroneous. If the plaintiff below had a right to the wheel on paying or tendering a fair and reasonable compensation for the work done on it alone, the defendants would have been left without any security for the amount to which they were entitled for labor performed and expense incurred, in pursuance of their contract, in prepairing to renew the tire on the other wheel. Be this much or little, if the contract was entire, they were entitled to their lien for the same.

Judgment reversed, and venire facias de now awarded.


text:
    Adams versus Pittsburgh Insurance Company.
    1. There is a great necessity to give effect to a custom of captains of steamboats at a large river port to insure their boats and give premium notes therefor, the perils of navigation being so well known that a due regard for some indemnity against loss is justly recognised as a necessary precaution.
    2. If such a custom is clearly and distinctly proved to have existed so long as to be generally known, the owners of a steamboat so insured are liable upon the notes thus given for the insurance.
    3. That a custom so general and notorious may exist as to authorize the captain of a steamboat to effeet an insurance on it for the benefit of the owners, without their express direction, is well settled by authority. It would not be in conflict with amy statute, nor would it be unreasonable or contrary to public policy.
    4. To establish the validity of a custom the usage must have existed so long as to become generally known, and it must be clearly and distinctly proved. The law prescribes no particular number of witnesses to establish the fact, although the concurring testimony of a large number may increase the probability of its being generally known.

      October 7th 1880.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Stbrrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 65.
    Assumpsit brought by the Pittsburgh Insurance Company against John S. Adams and Adam Jacobs, who survived James Collins, late owners of the steamboat “ Glasgow.” John S. Adams was the only one served. The claim of the insurance company was to recover on a promissory note premiums for insurance, which, in 1867, had been taken by said insurance company on the steamboat “ Glasgow,” at request of G. W. Johnston, the captain, who gave a note of the owners for the premiums; The testimony showed that in 1867 the said James Collins, Adam Jacobs and John S. Adams were the part owners of the steamer “ Glasgow” —each having the one-third part thereof. The steamer was not held by them as partners. In June 1867, at the request of Johnston, but without the knowledge or consent of either Adams or Jacobs, the insurance company issued a policy on -the steamer for the sum of $5000, the loss being payable to whoever may be the owners. For the premium, which was ten per cent., a note was given.
    The steamboat, when this note was given and insurance taken, was at the port of Pittsburgh, her home port, and John S. Adams was a resident of the city of Pittsburgh, and was known to the president of the Pittsburgh Insurance Company, who issued the policy. Adams was not consulted nor in any way informed of the insurance or the note, and the first he knew of the fact that insurance had been taken and note given was when this action was brought — nearly six years after the note was given — i. e. on March 8th 1873.
    At the trial, before Collier, A. L. J., the plaintiff proposed to prove by the witness, and by other expert steamboat men and business men, that in 1867, and for a long time previous, beyond' the memory of man, there existed a custom at the port of Pittsburgh by which insurance upon steamboats was effected by the captain or master of the vessel for the benefit of the owners, and that usually notes were given by the master for the boat owners in the form of the note in suit for the premium of the insurance on vessels thus obtained; that this custom was notorious and universal — generally known in steamboating in Pittsburgh — for the purpose of showing that the master, Johnston, had authority, as agent of the owners in this case, to make this note for insurance effected upon the steamboat “ Glasgow ” under this custom, for the benefit of the owners. “
    Objected to, first, as irrelevant and incompetent; and second, that it is now, and was in 1867, and for a long time prior thereto, had been a well-settled rule of commercial law that the part owners of a vessel were not partners, and that no one part owner or captain had the power to give a note to bind his part owner, and that it is incompetent by custom to attempt to interfere with a well-settled rule of commercial law; and third, that such a custom as is offered to be proven is illegal: Objections overruled.
    The following were among the points of the defendant all of which the court refused:—
    2. The evidence as to custom is not sufficient to justify the jury in finding that in 1867 the captain of the steamer “ Glasgow ” was authorized to insure the steamer for the part owner, J. S. Adams, without his knowledge or consent.
    6. If the jury believe that J. S. Adams, the defendant, did not authorize Captain Johnston and Collins, or either of them, to insure the steamer “ Glasgow ” for him (Adams), the plaintiff cannot recover.
    5. The custom attempted to be proven in so far as it relates to and pretends to authorize the master of a vessel in her home port, and where the part owner lived, to insure for the part owner, is unreasonable and invalid.
    8. In order to enable the plaintiff to recover in this action, it must show a joint liability on the part of J. S. Adams, Adam Jacobs and James Collins to pay the premiums on the insurance policy; and there being no evidence in the case to show such joint liability, the plaintiff cannot recover.
    10. If the court decline to charge as requested, “ that under all the evidence in the case the plaintiff cannot recover,” then they are requested to charge “ that the plaintiff cannot recover from the defendant,-J. S. Adams, more than his proportion of the premium • for insurance — that is, according to his interest in the vessel — the one-third part thereof.”
    In the general charge, the court, inter alia, said:—
    “ If you believe the evidence establishes a general custom, then it would make no difference-whether Mi'. Adams actually knew in this particular case of the captain insuring the boat, and your verdict should be for the plaintiff. If you do not believe the testimony established a general custom, you will find for the defendant. * * * If this custom was so long established, so well known upon the river, so universally or generally acted upon (it would not make any difference if there were a few exceptions or variations) that the steamboat men probably knew it, the owners probably knew it, and the insurance companies knew it and were acting upon it; if it was that kind of a custom, the parties would-be presumed to know it; but it must come up to that standard.”
    Yerdict for plaintiff for $1026.20, and after judgment thereon defendant took this writ and alleged that the court erred in admitting the above testimony, in the refusal of defendants points and in the foregoing parts of the charge.

      W. G. Guiler and D. T. Watson, for plaintiff in error. —
    The court below held that where there were three part owners of a vessel in her home port — at which port one of the part owners resides — that a custom would be good to individually bind this part owner for the entire premiums oil insurance taken out without his knowledge or consent by the captain of the vessel. When this case was here before, though the peculiar features of the vessel being in her home port, and one part owner being liable for all the the other part owners’ premiums were not alluded to, this court said such a custom was “ derogatory of the rights of such owners, and not required for the advancement of commerce and trade.” It is submitted that such a custom is unreasonable. Why should a captain of a vessel, in her home port, where the part owner lives, have the power to take out any amount of insurance he sees fit, and bind the part owner for the entire premiums for the whole ship without his knowledge or consent ? Bottomry and respondentia bonds are only allowed in foreign ports and in great emergencies, but even then do not bind the personal estate of the owners. They bind only the ship. But the custom here pretended is not alone to bind the ship, but to bind each part owner’s individual estate for the entire premiums ; and, this too by the issuing for the owners of the ship, and as binding upon them negotiable promissory notes by the captain.
    The evil results of such a custom of the power of a captain' to bind the part owner by a negotiable paper are far reaching. No part owner’s estate would be safe. It is entirely, we believe, unprecedented in the whole categories of custom. This court has said it is unnecessary. It is submitted it is illegal as being in flat contradiction of the rule of law that a captain cannot insure, or issue a promissory note to bind the part owner; and coming in conflict with this rule it must fall. In the notes of Mr. Justice Sharswood, in 1 Blackstone, *79, note 21, he says: “A usage or custom is never admitted against the express agreement of the parties, nor in violation of any statute or well-established rule of law:” Cox v. Heisley, 7 Harris 246.
    It is the well established rule of law that a captain or master can neither insure the vessel nor issue a negotiable promissory note which will bind the owners: Story on Agency, sect. 35 ; Flanders on the Law of Shipping, p. 164, sect. 141; Knight v. Eureka F. & M. Ins. Co., 26 Ohio St. 669 ; General Interest Ins. Co. v. Ruggles, 12 Wheat. 412; Patterson v. Chalmers, 7 B. Mon. 598, 599. Blackstone says (vol. 1, *77), one essential of a custom is that it “ must be reasonable,” and such that “ no good legal reason can be assigned against it.” If the custom is unnecessary, as this court has said, and not required for the advancement of trade, how is it reasonable to vest a captain with the power to sign the shipowner’s name to promissory notes, or to insure for the part owner in the home port of the vessel where the owner lives ? In Stillman v. Huroe, 10 Texas Rep. 109, it was ruled that a custom for captains of coasting vessels to sell the lumber - with which they were laden, in the harbor of Brazos, St. lago, without authority from the owners, was unreasonable and illegal. But admitting that such a custom might be good if properly proven, there was absolutely no proof of a custom which should have enabled the plaintiff below to go to the jury in this case. This insurance was' taken out by Captain Johnston without the authority, knowledge or consent of Mr. Adams. Therefore to bind Adams for the same, the custom must show the power of the captain to take out the insurance without the authority, knowledge or consent of the owner. So far from the evidence in this case showing any such custom, it was directly to the contrary. The witnesses to this pretended custom agreed that the captain of his own motion could not determine the amount of insurance to be taken out, but that was always settled by consultation with the part owners. Mr. Gordon, president of the company, Mr. Huttz, Captain Atkinson and Captain Dean all agree in this, and no one disputes it. In the case at bar, as Mr. Adams never knew or heard of the insurance, Johnston did not consult with him. As the custom as proven was that in fixing the amount of the insurance the captain was bound to consult the part owner, and as in this case Captain Johnston did not consult Mr. Adams, but insured without it, the case as proven did not fall within the custom. The alleged custom was not definite and certain and uniform. This court, when the case was here before, said: “A custom not only can but must be so proved as to leave no doubt upon the mind with reference to its nature and character. Doubt must be wholly eliminated from the evidence adduced, or the usage is not well proved.” A custom to pay twopence an acre in lieu of tithes is good; but to pay sometimes twopence and sometimes threepence is bad as uncertain: 1 Black. Com. *78. We think it clear that the evidence instead of proving a usage which authorized the insurance in this case, proved directly the contrary, But, in addition to this, the pretended usage was neither definite nor certain. Sometimes the clerk gave the note, and sometimes the captain. Sometimes the name of payee in the note was filled up; sometimes not. Dr. Ray testified, “I won’t say it was the universal custom.” Captain Atkinson said when he run as captain the owners on shore took out the insurance. Captain Dean said he never insured without consultation with part owners. Captain Rhodes said when the boat first came out the owners insured her, and if the owners were present at the home port of the vessel it was customary for them to insure her. The president of the insurance company admits that this was the first insurance taken out. Captain Stockdale says his owners knew before he insured, and he knows of no custom authorizing to the contrary. It is submitted this Mis far short of a usage which is so definite, uniform and certain as to leave no doubt upon the mind; and the whole evidence shows that though sometimes the captain took out the insurance, and perhaps generally, he always did it with the authority and knowledge of, and after consultation with, the owners; and there was no custom to the contrary.
    It is believed that the charge of the court does not correctly state the rule of law as to the evidence necessary to establish a custom. Though firm- in our second position, that there has been no custom proven to justify a recovery in this case, it is our duty to call the attention of the court to our last position, that if this court should differ from us so far, that our next position would be that such a usage, if proven, would not be good to the full extdht claimed, but only in so far as each part owner’s share was concerned. One part owner cannot bind any other part owner without his consent in taking out insurance on the whole ship : Abbott on Shipping 107; Turner v. Burrows, 8 Wend. 144. Why it should be allowed to a captain so to do we are unable to see. We submit this judgment should be reversed without a venire.

      A. M. Brown, for defendant in error.
    It was held in McMasters v. Pennsylvania Railroad Co., 19 P. F. Smith 374, that a custom, so long persisted in as to be known and practised by a community, is the law of the particular business in which it exists; and the presumption arises, that it is, in the view of parties who contract about its subject-matter. In this state a custom is sufficiently ancient if it has existed long enough to be generally known: Collins v. Hope, 3 Wash. C. C. 149 ; Snowden v. Warden, 3 Rawle 101; McMasters v. Pennsylvania Railroad Co., supra. A custom or usage will control the general common-law liability of carriers, although limited to a particular line of stages, or to a single port or place: Cope v. Cordova, 1 Rawle 203; Koons v. Miller, 3 W. & S. 271-72; Gordon & Walker v. Little, 8 S. & R. 533; Pittsburgh v. O’Neill, 1 Barr 344. A custom on the Ohio river was permitted to vary the responsibility of a carrier in Gordon & Walker v. Little, supra; and a usage in the city of Philadelphia was allowed to add a warranty to a contract of sale, which in fact and in law did not embrace such warranty: Snowden v. Warden, 3 Rawle 101. Usage or custom may control or curtail the execution of a contract: 1 Hill, on Cont. 295; Eyre v. Insurance Co., 5 W. & S. 116; Helene v. Philadelphia Life Insurance Co., 11 P. F. Smith 107, and cases therein cited. So a contract with a bank may be construed by the usage of such bank : Mills v. Bank, 11 Wheat. 431; Chickopee v. Eager, 9 Metc. 583. And in DeForest v. Fulton Insurance Company, 1 Hall 84, evidence was received of the usage of commission merchants to charge insurance without orders. Usage is admissible to construe a bill of lading as to weight: Russian v. Silva, 13 C. B. N. S. 610. So upon the question whether the plaintiff, a broker, is entitled to certain commissions not specified in the charter-party, proof that on several occasions the defendant had paid nine similar commissions, is admissible as evidence, either that the defendants knew and assented to the plaintiff’s custom to make such charge, or knew that the charges were in conformity to the usage of the trade: Weber v. Kingsland, 3 Bosworth (N. Y.) 415. In an action for damages for a difference between tobacco bought by sample and the samples, evidence of a local custom to buy and sell in bulk, by samples prepared by the state inspectors, without insuring correspondence in quality, is admissible: Gunther v. Atwell, 19 Md. 157; 1 Hill, on Cont. 189, sect. 27. Ignorance, in fact, of an established usage on the subject will not affect its operation: 1 Hill, on Cont. 190, sect. 28; Id. 294-95. It is no sufficient answer to the evidence of usage to say that under the ancient maritime law the captain of a vessel had no implied authority to effect insurance on the vessel for the owners by virtue merely of his general agency. Every day old rules are being gradually modified by contract, usage or notice, to fit them to the new order of business. “It would be strange,” said the late Chief Justice Thompson, in McMasters v. Pennsylvania Railroad Co., “ if the process of improvement by custom and usage is to stop just here, and go no further.” Indeed there is no good reason why the master of a "steamboat should not have the same implied authority, by usage, to insure the vessel for the owners that he possesses by custom for the doing of other acts relating to the care, preservation and control of the vessel. The Act of Assembly of April 20th 1858, sect. 1, (III.) Pamph. L. 363, relating to liens and attachments against “ steamboats or vessels navigating the rivers Allegheny, Monongahela or Ohio,” expressly recognises the validity of all bills, notes, &c., signed and given by any owner, owners, agent or- master, for building, repairing, furnishing and insuring such boats or vessels, and gives a lien therefor to the payee or his assignee or endorsee; thus showing' that the legislature in providing a statutory remedy for securing and enforcing claims against vessels recognised the custom and the implied authority of the master to insure a vessel for the benefit of the owners and render them liable upon the contract- All customs, like all laws, are to a certain extent derogatory of the rights of individuals, but that is not a good reason why they should not exist or be enforced. We submit that the alleged custom is not unreasonable. There is no good reason why the master in the command and control of the vessel should not have the right to make a contract of insurance as he has the right to make other contracts in the line of his duty; and in the vicissitudes of trade on the western rivers it often becomes urgently necessary to change the voyages and risks of the vessel, as the testimony in this case shows. It may be that a custom in “flat contradiction” of a statute would not be held good, but the' citation of an old common-law rule is not sufficient to overturn a more recent custom which has become well established through the growth and advancement of modern times. The old rules of the common law are derived from the usages or customs of the olden time, but in many instances greatly changed by statutes or later customs. The custom asserted in this case conflicts with no statute, is reasonable, and tends to promote the advancement of trade and commerce.
    November 1st 1880.
   Mr. Justice Mercur

delivered the opinion of the Court,

u Qonsuetudo,” said Sir Edward Coke, “is one of the main triangles of the laws of England; those laws being divided into common law, statute law and particlar customs, for if it be the general- custom of the realm, it is part of the common' law :” Co. Lit. 113-15. “A custom used upon a certain reasonable cause, depriveth the common law:” Littleton, page 112, sect. 169. In Vanhearth v. Turner, Winch. Rep. 24, Chief Justice Hobart said, “ the custom of merchants is part of the common law of this kingdom, of which the judges ought to take notice, and if any doubt arise to them about the custom they may send for the merchants to know their custom.” That a custom so general and notorious may exist as to authorize the captain of a steamboat to effect an insurance on it for the benefit of the owners without their express directions, we think well settled by authority. It would not be in conflict with any statute, nor would it be unreasonable or contrary to public policy. In Vanness v. Pacard, 2 Pet. U. S. Rep. 148, it was held that evidence was properly received to prove that a custom and usage existed in the city of Washington which authorized a tenant to remove any building erected by him. In Gordon et al. v. Little, 8 S. & R. 533, it is held, a usage or custom varying the liability of common carriers by water from that of the common law may be proved, even to give construction to the words “inevitable dangers of the river.” The usage of trade in respect to particular voyages, or risks to which a'policy of insurance relates, has always been invoked to give construction to its meaning: Park on Insurance 30. Usage may add a new construction variant from the face of the instrument, as much as if it had been contained in a new clause or by'a reference to it: Eyre v. Marine Ins. Co., 5 W. & S. 116.

It is well settled, as a general rule, that the intention of the parties to a contract shall prevail unless it be to do something either malum in se; or malum prohibitum: Snowden et al. v. Warder; 3 Rawle 101.

A custom so long persisted in as to be known and practised by a community is the law of the particular business in which it exists. Such a custom is presumed to be in the view of the parties when they contracted about its subject-matter: McMaster v. Pennsylvania Railroad Co., 19 P. F. Smith 374; Carter v. Philadelphia Coal Co., 27 Id. 286. To make a usage obligatory on the parties,it should be so well settled that persons engaged in the trade must be considered as contracting in reference to it. No particular period of time is requisite to the establishment of a usage so as to affect contracts : 1 Phil, on Insurance 83. The true test is that it has existed a sufficient length of time, not only to have become generally known to the dealers who are to be affected by it, but also to warrant the presumption that contracts are made in reference to such usage or custom : Smith v. Wright, 1 Caines Rep. 43; Snowden v. Warder, supra. This rule is especially applicable to commercial transactions, and either party to such a contract may prove the usage: Id. In all matters of trade usage is of vital importance, and in policies of insurance in particular, a great latitude of construction as to usage has been admitted: Phil, on Ins. 80. There is a great necessity for giving effect to a custom in regard to the insurance of a steamboat in the custody of one not the owner. The perils of navigation are so well known, that a due regard for some indemnity against loss is justly recognised as a necessary precaution. lienee it was held in Oliver v. Green, 3 Mass. 134, that a part owner of a vessel who had chartered the other part with a covenant to pay the value, in case of a loss, might insure the whole vessel as his property, without disclosing that he had a special property only, in a moiety thereof. So in DeForest v. Fulton Fire Ins. Co., 1 Hall 94, it was held that, a commission merchant might recover on a policy of insurance for goods in his possession, destroyed by fire, beyond the value of his property therein, without any express orders from the consignors of the goods to effect such insurance, on proof that such was the usage of commission merchants in the city of New York.

The remaining question is, was the evidence sufficient to submit to the jury to find the existence of the custom alleged ? To establish its validity the usage must have existed so long as to have, become generally known, and it must be clearly and distinctly proved. The law prescribes no certain number of witnesses to establish the fact, although the concurring testimony of a large number may increase the probability of its being generally known. Where evidence of usage is admitted, the witnesses must be confined to the fact of usage, and not be allowed to give their opinions: Gordon v. Little, supra, and cases there cited.

Nine witnesses, residents of Pittsburgh, testified to the existence of the custom. Some had been captains of steamboats, some owners and part owners thereof, others officers of insurance companies. All were qualified, by their knowledge of the business, to know the fact that such usage actually existed. The knowledge of some of them extended over a period of nearly thirty years, that of others for various shorter periods, all coming down to the time of the trial. Without stating their evidence in detail, it may be said they testified it was the custom for the captains of steamboats to procure the insurance thereof, and execute a premium note therefor in behalf of the boat and owners. While to the knowledge of some of the witnesses there were occasional departures from this method, yet the general usage was as stated. When the captain applied for an insurance on the boat of which he was master, no question was ever asked him as to his authority to act for the owners. Such authority was always presumed. It is true some witnesses testified on cross-examination they did not know that the captain acted without the consent of the owners. This absence of knowledge, in that respect, in no wise impaired the force of their testimony as to the usage of the captain in effecting the insurance without alleging any express consent of theirs. The underwriters did not ask for express directions to insure from the owners. The captain did not represent that he had any such. This was the custom which the witnesses testified existed as a fact. It is claimed that, conceding the captain might make a contract of insurance to bind the owners, yet he could not give a note, negotiable in form, in their names. The evidence was, and the jury has found, the invariable custom was to secure the payment of the premium by note in such form. It is a well recognised rule that authority to effect a policy of insurance, is authority to sign a note for the premium as agent of the assured when it is customary to give such notes, and the principal is conusant of the custom : 1 Phil, on Ins., sect. 518 ; Stack-pole v. Arnold, 11 Mass. 27. Besides, in the present case the declaration was not on the note alone; but it also contained a count on the contract of insurance. It further appears by the evidence of the plaintiff in error, that he gave very little attention to the management of the boat; but intrusted it to the captain, and to Collins, who was a part owner thereof. It is shown that Collins had knowledge of the insurance, and made a payment of a small sum on the note.

The only witness called on the part of the plaintiff in error was the party himself. He does not testify that, as matter of fact, no such custom existed in Pittsburgh; but he knew of no custom which would authorize Captain Johnson, or any captain of his vessels, to insure the vessel or his interest in it, without his knowledge or authority. He thus testifies to his understanding of the law, and leaves unanswered the fact of an existing usage on which the claim rests and supports the action.

When this case was here before (26 P. F. Smith 411), we thought the evidence insufficient to submit to the jury. On the last trial the increased number of witnesses, and their clear, distinct and uncontradicted evidence as to the existing and well known custom and usage, was sufficient to carry the case to the jury. We discover no error in the record. ’

Judgment affirmed.

Justices Gordon and Sterrett dissented.